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A treatise on instructions to juries in
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A TREATISE
ON
INSTRUCTIONS TO JURIES
IN
CIVIL AND CRIMINAL CASES
INCLUDiNG
PROVINCE OF COURT AND JURY
BY
DE WITT C. _BLASHFIELD
EDITOR-IN-CHIEF OF ABBOTT'S CYCLOPEDIC DIGEST
ST. PAUL, MINN.
KEEFE-DAVIDSON CO.
1902
/f^^ff?
COPYRIGHT 1902,
BT
KEEFE-DAVIDSON CO.
'WSBB PCBLISHIHQ CO. PEE88, ST, PAUL.
PREFACE.
The subject of instruotions to juries has heretofore received
but meager attention, although it is one of the most impor-
tant 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 pro-
fession will prefer well approved precedents, rather than de-
ductions of the author. Therefore, discussion of theories has
been avoided, save those which have received the commenda-
tions 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 cau-
tionary instructions upon "alibi" and "reasonable doubt."
The history of the doctrine that the jury may judge both law
and fact in criminal cases is exhaustively treated, and the
statutory limitations placed upon the judge's power to com-
ment on the evidence are fully worked out.
In connection with every rule or principle stated, exhaus-
tive citations 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 restate-
ment 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. BLASHFIELD.
June 27, 1902.
TABLE OF CONTENTS.
CHAPTER I.
DEFINITION AND OFFICE OF INSTRUCTIONS.
§ 1. What are Instructions.
2. Purpose of Instructions.
CHAPTER II.
PROVINCE OF COURT AND JURY.
I. Questions of Law and Fact.
§ 3. Statement of Rule.
4. Illustrations of Rule.
5. Directing Verdict.
II. CONSTEUCTION Or WEITINGS.
§ 6. Statement of Rule.
7. "Written Contracts.
8. Deeds and Mortgages.
9. Miscellaneous V(fritings.
10. Exceptions to Rule.
11. Rule Where Parol Evidence is Admitted to Explain Writing.
III. Existence and Inteepeetation of Laws, Oedinances, aud
Rules.
§ 12. In General.
13. Laws of Foreign State.
14. Municipal Ordinances.
IV. Oeal Contbacts and Language.
§ 15. In General.
X TABLE OF CONTENTS.
V. POWEK OF JUBY TO JUDGE THE LAW IN CRIMINAL CASES.
§ 16. Introductory Statement.
17. Arguments for and against Exercise of Right.
18. Rule in England Deducible from Decisions and Text Books.
19. Rule at Common Law in America.
20. Same— What Instructions Proper as to Following Charge of
Court.
21. Summary of Organic and Statutory Provisions Regulating
Practice.
22. Provisions Held to Vest Jury with Right to Disregard In-
' structions.
23. Same — Propriety or Necessity of Instructing Jury on Law
of the Case.
24. Same — Necessity and Manner of Instructing Jury that They
are Judges of the Law.
25. Provisions Held not to Vest Jury with Right to Disregard
Instructions.
26. Same — Rule in Georgia.
27. Same — ^Rule in Louisiana.
28. Same — Rule in Massachusetts.
CHAPTER III.
ASSUMPTION OF FACTS IN INSTRUCTIONS.
29. Assumption of Disputed Facts.
30. Improper Assumption of Facts in Dispute Illustrated.
31. Instructions Held not to Assume Disputed Facts.
32. Assumptions in Opposition to Evidence.
33. Assumption of Facts not Supported by Any Evidence.
84. Assuming Nonexistence of Fact in Absence of Evidence.
35. Assuming Facts by Way of Illustration.
86. Assumption of Admitted Facts.
37. Assumption of Facts Supported by Strong and Uncontra-
dicted Evidence.
CHAPTER IV.
CHARGING WITH RESPECT TO MATTERS OF FACT, OR
COMMENTING 01^ WEIGHT OF EVIDENCE.
S 88. Jurisdictions Where Practice Permissible.
TABLE OP CONTENTS. xi
39. Same — Rule in Michigan and New Hampshire.
40. Same — Federal Practice as Affected by State Practice.
41. Same — ^How Strong an Expression of Opinion is Permissi-
ble.
42. Same — Necessity of Expressing Opinion.
43. Same — Necessity of Instructing that Opinion is Merely Ad-
visory.
44. Same — Effect of Erroneous Opinion.
45. Same — When Expression of Opinion is Ground for Reversal.
46. Jurisdictions Where Practice is Prohibited.
47. Same — Instructions Held to Violate Prohibition.
48. Same — Instructions Held not to Violate Prohibition.
49. Same — Curing Error by Other Instructions.
50. Same — Violation of Rule Otherwise than by Express Instruc-
tions.
61. Same — Indicating Opinion by Questions Asked the Jury.
CHAPTER V.
SUMMING UP THE EVIDENCE.
62. The Practice Defined and Describea.
63. Where Practice Permissible.
64. Where Practice not Permissible.
65. Necessity of Summing up Evidence.
56. Method of Summing up — Whether Necessary to State All the
Evidence.
57. Same — Whether Necessary to Give Precise Language of Wit-
ness.
68. Same — ^Whether Necessary to Give in Order in Which Evi-
dence was Admitted.
69. Same — Miscellaneous.
60. Effect of Misstating Evidence and Method of Preserving Er-
ror for Review.
CHAPTER VI,
FORM OP INSTRUCTIONS.
I. General CoNsrDEiiA.TiONS Applicable in Drafting Instbuctions.
§ 61. Necessity of Covering Whole Case.
j^,l TABLE OF CONTENTS.
62. Adhering to Well-Settled Precedents.
63. Style, Spirit, and Arrangement.
64. Verbal Inaccuracies.
65. Qualifications or Limitations of General Rules.
66. Presenting In Form of Questions.
II. Directness and Ceetaintx Requieed.
§ 67. General Rules.
III. AEGTJMENTATIVli INSTEUCTIONS.
§ 68. Argumentative Instructions Condemned.
69. What are Argumentative Instructions — Illustrations
70. As Ground for Reversal.
IV. AmBIOTTOTTS iNSTBtrCTIONS.
§ 71. General Rules.
V. Vague, Obscube, or Involved Instettctions.
§ 72. In General.
VI. CONTRADICTOBY AND INCONSISTENT iNSTEtTCTIONS.
§ 73. Instructions Subject to this Vice Condemned.
74. Instructions Held Bad as Being Contradictory.
75. Instructions Held not Contradictory.
76. Incorrect Instructions not Cured by Inconsistent Qorrect In-
structions.
77. Reason for Rule against Contradictory Instructions.
78. As Ground for Reversal.
VII. Peedicatinq Instkuctions on Belief pbom Evidknok.
§ 79. In General.
VIII. Necessity of Hypothesizing Facts.
§ 80. In General.
IX. Length and Numbee of Insteuctions.
§ 81. Instructions should be Short and Few.
S2. Requests for Long and Numerous InBtruotlona.
TABLE OP CONTEINTS. xiii
CHAPTER VII.
RELATION OF INSTRUCTIONS TO PLEADINGS AND HVI-
DBNCE.
I. CONFOEMITT TO PLEADINGS AND EVIDENCE.
§ S3. General Rule.
II. Limiting Instructions to Issues Raised by Pleadings.
§ 84. In Civil Cases.
85. In Criminal Cases.
III. Relation of Instructions to Evidence.
§ 86. Necessity of Basing on Evidence.
87. Sam&-r-Illustrations of Rule.
88. Same — Stating Exceptions to General Rules Announced in
Othet Instructions.
89. Same — Withdrawn or Excluded Evidence.
90. Same — Sufficiency of Evidence to Support Instructions.
91. Same — Violation of Rule as Ground for Reversal.
92. Necessity of' Concrete Application to Facts of Case.
CHAPTER VIII.
STATING ISSUES TO JURY.
93. Statement of Rule.
94. Illustrations of Rule.
95. Exceptions to Rule.
96. How Issues should be Stated.
97. Erroneous Statement of Issues.
98. Incomplete Statement of Issues.
99. Withdrawal of Issues.
CHAPTER IX.
IGNORING EVIDENCE, ISSUES, THEORIES, AND DEFENSES.
§ 100. Ignoring Evidence — Statement of Rule.
101. Same — Instructions Held Erroneous, as Ignoring Evidence
or Withdrawing It from Consideration.
xiv TABLE OF CONTENTS.
102. Same — Instructions Held not Erroneous, as Ignoring Evi-
dence or Withdrawing It from Consideration.
103. Ignoring Issues, Theories, and Defenses.
104. Same — Instructions Held Erroneous, as Ignoring Issues, The-
ories, and Defenses.
CHAPTER X.
GIVING UNDUE PROMINENCE TO EVIDENCE, ISSUES, AND
THEORIES.
§ 105. Rule Against.
106. Same — Singling Out Particular Witnesses.
107. Same — Exceptions to Rule.
108. Giving Undue Prominence by Repetition.
109. Instructions Held Erroneous as Singling Out and Giving Un-
due Prominence to the Evidence.
110. Instructions Held not Erroneous as Singling Out and Giving
Undue Prominence to Evidence.
111. Singling Out Issues and Theories.
CHAPTER XI.
NECESSITY OR PROPRIETY OF DEFINITION BY COURT OF
TERMS USED, AND CORRECTNESS OF SUCH DEFINITION.
§ 112. Words and Terms of Ordinary Meaning.
113. Legal Terms or Words of Technical Meaning.
114. Defining Offense Alleged Against Defendant in Criminal
Prosecution.
CHAPTER XII.
NECESSITY OF INSTRUCTING IN WRITING.
115. Rule at Common Law.
116. Statutory Rules.
117. Effect of Failure to Instruct in Writing When Required.
118. Same — Digest of Decisions.
119. When Statute Applies — What are Instructions.
TABLE OF CONTENTS. XV
120. Same — Digest of Decisions.
121. Sufficiency of Compliance -with Statute.
122. Same — Oral Explanations, Modifications, and Additions.
123. Same — Subsequent Reduction of Oral Charge to Writing.
124. Same — Reading from Books and Papers.
125. Waiver or Loss of Right to Written Instructions.
CHAPTER XIII.
REQUESTS FOR INSTRUCTIONS.
I. Right to Insteuot in Absence of Request.
§ 126. Rule Stated.
II. Necessity of Request as Foundation fob Ebrob.
§ 127. Where no Instructions are Given.
128. Same — Digest of Decisions.
129. Where Insufficient Instructions are Given.
130. Same — Digest of Decisions.
131. Same — Exceptions to General Rule.
182. Same — Digest of Decisions.
183. Where Erroneous Instructions are Given.
III. Time of Making Request.
§ 134. Necessity of Request in Apt and Proper Time.
135. What is Apt and Proper Time.
136. Same — Digest of Decisions.
IV. Form and Sufficiency of Request.
§ 137. Correctness in Form and Suhstance.
138. Same — Digest of Decisions.
139. Written Request.
140. Same — Digest of Decisions.
141. Signing by Party or Counsel.
V. Disposition of Requests.
§ 142. In General.
143. Marking Instructions "Given" or "Refused."
144. Same — Effect of Noncompliance with Statute.
145. Necessity of Giving Requested Instructions.
146. Same — As Affected by State of Evidence.
XVI
TABLE OF CONTENTS.
147. Same— Bequests Covered by Other Instructions.
148. Same — Digest of Decisions.
149. Same— Qualifications and Exceptions to Rule.
150. Same— Necessity of Stating Grounds of Refusal to Jury.
151. Same— Harmless Error.
152. Duty to Follow Language of Request.
153. Same — Digest of Decisions.
154. Modification of Requested Instructions.
155. Same— Particular Modifications Considered.
156. Same— Harmless Error.
157. Same — Manner of Making Modifications.
158. Same — Digest of Decisions.
CHAPTER XIV.
NUMBERING AND SIGNING INSTRUCTIONS.
159. Numbering Instructions.
160. Signing by Party or Counsel.
161. Signing by Court.
CHAPTER XV.
PRESENTATION OP INSTRUCTIONS TO JURY.
162. Matters Elsewhere Considered.
163. Time of Delivering Instructions.
164. Reading from Statutes.
165. Reading from Text Books.
166. Reading from Reported Decisions.
167. Diminishing or Weakening Effect of Instructions by Words
or Actions.
168. Giving Undue Importance to Instructions by Words or Ac-
tions.
169. Unduly Emphasizing Proposition of Law by Repetition.
170. Manner and Emphasis of Judge in Giving Instructions.
171. Stating Reasons for Giving or Refusing Instructions.
TABLE OF CONTENTS. , xvii
CHAPTER XVI.
ADDITIONAL INSTRUCTIONS AFTER RETIREMENT
OF JURY.
I. Right, AND Duty to Givii Additional Insteuctions.
§ 172. General Rule.
173. At Request of Jury.
174. At Request of Parties.
175. By Consent of Counsel.
176. What Further Instructions Proper.
177. Same — Necessity of Repeating Entire Charge.
178. Exceptions to Additional Instructions.
II. Delivery in Open Couet.
§ 179. General Rule.
180. Violation of Rule as Ground for Reversal.
181. Waiver of Objections.
III. Peesence of Counsel.
§ 182. Rule that Presence of or Notice to Counsel is Unnecessary.
183. Rule that Presence of Counsel or Notice is Necessary.
184. Same — Violation of Rule as Ground for Reversal.
IV. Pebsbncb op Accused in Criminal Gases.
§ 185. Statement of Rule.
CHAPTER XVII.
INSTRUCTIONS AS TO PUNISHMENT AND GRADES OP
OFFENSE.
I. Instructions as to Punishment.
§ 186. When Unnecessary.
187. When Necessary.
188. Same — Invading Province of Jury.
189. Same — Misstating Punishment.
II. Instructions as to Lower Grades ob Degrees of Offense.
§ 190. Necessity of Basing on Evidence.
191. Same — Illustrations of Rule.
xviii TABLE OP CONTENTS.
192. Necessity of Giving When Warranted by the Evidence.
193. Propriety of Particular Instructions.
CHAPTER XVin.
DECLARATIONS OP LAW IN CASES TRIED WITHOUT A JURY.
5 194. In General.
CHAPTER XIX.
ISSUES OUT OP CHANCERY.
! 195. Necessity and Propriety of Giving Instruction*
196. Rules Governing Instructions Given.
CHAPTER XX.
SPECIAL VERDICT OR FINDINGS.
§ 197. "What Instructions Unnecessary or Improper.
198. What Instructions Proper.
CHAPTER XXI.
INSTRUCTIONS AS TO DUTY OP JURORS TO AGREE UPON
VERDICT.
S 199. What Instructions Proper.
200. Instructions Tending to Coerce Jury into Agreement.
201. Statements as to Length of Time Jury Will be Kept To-
gether.
202. Directing Jury to Compromise.
TABLE OF CONTENTS. xix
CHAPTER XXII.
WITHDRAWAL OR MODIFICATION OF INSTRUCTIONS.
{ 208. Right to Withdraw or Modify Instructions.
204. SuflBciency and Effect.
205. At Request of Parties.
CHAPTER XXIII.
CURING ERROR IN THE ADMISSION OF EVIDENCE BY
INSTRUCTIONS.
§ 206. Whether Error can be Thus Cured.
207. Directing Jury not to Consider Evidence Offered and B!x-
cluded.
208. Necessity for Objections as a Basis of Request to Withdraw
Evidence.
209. Request for Instructions Withdrawing Evidence.
210. What Withdrawal of Evidence Sufficient
CHAPTER XXIV.
INSTRUCTIONS PERMITTING JURORS TO USE PERSONAL
KNOWLEDGE AS EVIDENCE.
I 211. In General.
212. View by Jury of Locus in Quo.
OHAPTER XXV.
CAUTIONARY INSTRUCTIONS ON THE CREDIBILITY OF WIT-
NESSES AND THE PROBATIVE FORCE OP EVIDENCE.
I. Gknbbal Considerations.
§ 218. Right and Duty to Give Cautionary Instructions.
214. Credibility of Witnesses and Effect of Evidence in General.
II. Testimont op Accomplices.
{ 215. Rules of Evidence Governing this Class of Testimony.
XX TABLE OF CONTENTS.
216. Instructing Jury that They may Convict on Accomplice Tes-
timony.
217. Instructing Jury to Receive with Caution.
218. Advising Jury to Acquit Unless Corroborated.
219. Binding Instructions to Acquit Unless Corroborated.
220. Explaining Nature of Corroboration Required.
221. Instructing, as to Who are Accomplices.
222. Instructions Giving Undue Weight to Accomplice Testimony.
223. Evidence on Which to Base Instructions Necessary.
224. Same — Evidence Held Sufficient to Warrant Instructions.
III. Testimony op Parties and Inteeested Witnesses.
§ 225. What Instructions Proper.
226. What Instructions Improper.
227. Instructing that Jury "may" Consider Interest of Party or
Witness.
228. Same — Rule in Kentucky, Mississippi, and Texas.
229. Instructing that Jury "must" or "should" Consider Inter-
est of Party or Witness.
230. Same — Rule' in Kentucky, Mississippi, Texas, and Indiana.
IV. Admissions and Confessions in Ceiminal Cases.
§ 231. General Considerations Governing Instructions on this Kind
of Evidence.
232. What Instructions may Properly be Given.
233. Same — Instructions to Receive and Weigh with Caution.
234. Same — Instructions Giving Undue Weight to Evidence.
v. Admissions in Civil Cases.
§ 235. Instructions to Receive and Weigh with Caution.
236. Instructions Giving Undue Weight to this Class of Evidence.
237. Instructions as to Admissions of Record.
VI. Testimony or Bxpbet Witnesses.
§ 238. Rules Governing this Class of Evidence.
239. Instructing that Expert Testimony is to be Considered the
Same as That of Other Witnesses.
240. Instructions Tending to Discredit Expert Testimony.
241. Instructions Directing Jury to Attach Great Weight to Ex-
pert Testimony.
242. Instructing Jury to Take into Consideration Witness' Means
of Knowledge.
243. Instructions Contrasting Testimony of Experts.
TABLE OF CONTENTS. xxi
244. Directing Jury to Consider, in Connection with Other Evi-
dence.
245. Instructions Giving Undue Prominence to Skill and Experi-
ence of Experts.
246. Instructions with Regard to Hypothetical Questions.
247. Miscellaneous Instructions.
248. Necessity of Reguesting Instructions.
VII. Testimony of Impeached Witnesses.
§ 249. Propriety and Necessity of Instructions on this Subject.
250. What Instructions Proper.
251. What Instructions Erroneous.
VIII. Applications op the Maxim, "Palsus in TJno, Falstjs in
Omnibits."
§ 252. Propriety or Necessity of Instructing as to this Maxim.
253. Instructing that Jury "may" or "should" Disregard Evi-
dence.
'. 254. Omitting Element of Interest in Charging.
255. Omitting Element of Materiality of Testimony in Charging.
256. Instructions Making Corroboration a Condition of Belief.
IX. Relative Foece op Positive and Negative Testimony.
§ 257. In Jurisdictions Where Charge on Weight of Evidence Is
Improper.
258. In Jurisdictions Where Charge on Weight of Evidence is
Permitted.
259. What Instructions Proper.
X. Manner op Testifying, Bias, Etc.
§ 260. In General.
XI. Unsworn Statement of Dependant in Criminal Cases.
§ 261. In General.
XII. Identity of Defendant.
§ 262. In General.
XIII. Evidence of Chaeaotbb.
§ 263. Rules Governing this Class of Evidence.
264. Instructions Limiting Effect, of Evidence to Doubtful Cases
Improper.
xxu
TABLE OP CONTENTS.
265. Instructing that Evidence of Good Character may Create
Reasonable Doubt.
266. Instructions as to Effect of Evidence of Good Character in
Cases of Great and Atrocious Criminality.
267. Instructing that Evidence of Good Character Cannot Avail
Against Clear Proof of Guilt.
268. Other Instructions as to Character.
269. Necessity of Instructions on Character.
XIV. Conflicting Evidence.
§ 270. In General.
XV. COMPAEISON OF NUMBEE OF WlTNESSEB.
§ 271. What Instructions Proper.
272. What Instructions Improper.
CHAPTEE XXVI.
CAUTIONARY INSTRUCTIONS ON ABSENCE OF ALLOWABLE
EVIDENCE.
I. PArLTJEE TO PEODUOE EVIDENCE WiTHIN POWEE OF PAETT.
§ 273. In Civil Cases.
274. In Criminal Cases.
II. Pailtjee OF Paety TO Testift.
§ 275. In Civil Cases.
276. In Criminal Cases.
277. Same — What Instructions Proper.
CHAPTER XXVII.
CAUTIONARY INSTRUCTIONS ON THE DEFENSE OF ALIBI.
§ 278. Propriety or Necessity of Instructions on this Subject.
279. Instructions Tending to Discredit this Defense — View that
Such Instructions are Improper.
280. Same — The Contrary View.
281. Instructions Embodying the Doctrine of Reasonable Doubt
as Applicable to this Defense.
TABLE OP CONTENTS. xxiii
282. What Instructions Proper Where Burden of Proof Is on De-
fendant to Establish Alibi.
283. What Instructions Proper Where Burden of Proof is not on
Defendant to Establish Alibi.
284. Instructions as to the Effect of an Unsuccessful Attempt to
Prove Alibi.
285. Miscellaneous Instructions on this Subject.
CHAPTER XXVIII.
CAUTIONARY INSTRUCTIONS ON REASONABLE DOUBT.
286. Necessity of Instructions on this Subject.
287. Repetition of Instructions on Reasonable Doubt Unneces-
sary.
288. Necessity of Defining Reasonable Doubt.
289. Statutory Definitions.
290. Defining as a Doubt for Which Reasons Based on Evidence
can be Given.
291. Defining as a Doubt Which would Cause a Reasonable Man
to Pause and Hesitate in the Graver Transactions of Life.
292. Defining as a Doubt One the Absence of Which Would Cause
a Reasonably Prudent Man to Act in His Own Most Im-
portant Affairs.
293. Absence of Reasonable Doubt as Equivalent to "Moral Cer-
tainty," or "Reasonable and Moral Certainty."
294. Absence of Reasonable Doubt as Equivalent to an "Abiding
Conviction to a Moral Certainty."
295. Negative Definitions.
296. Not a Doubt as to Law.
297. Not a Doubt Raised by Argument of Counsel.
298. Entire Satisfaction of Guilt as Equivalent to Absence of
Reasonable Doubt.
299. Probability of Innocence may Create Reasonable Doubt.
300. A Doubt Arising from the Evidence or Want of Evidence.
801. Doctrine Applicable Only to Evidence Considered as a Whole.
302. Same — Contrary View.
303. As to Number of Jurors Who must Entertain a Reasonable
Doubt in Order to Acquit.
304. Must not Disbelieve as Jurors What They Would Believe as
Men.
305. Better that Guilty Escape than that Innocent be Punished.
306. Applying Doctrine to Degrees of Crime.
xxiv TABLE OF CONTENTS.
307, Instructions Bad as Requiring too High a Degree of Proof
to Overcome a Reasonable Doubt.
308. Instructions Bad as Requiring too High a Degree of Proof
of Innocence.
, :309. Sufficiency of Instructions Taken as a Whole.
310. Reasonable Doubt in Civil Cases.
311. Miscellaneous Cases.
CHAPTER XXIX.
CAUTIONARY INSTRUCTIONS ON CIRCUMSTANTIAL
EVIDENCE.
312. When Necessary or Proper.
313. Instructing that Circumstantial Evidence must be Equal to
Testimony of One Eye-witness.
314. Instructing that Proof must be Incopisistent with Any Other
Reasonable Conclusion than that of Guilt.
315. Instructing that Circumstantial Evidence must Exclude to
a Moral Certainty Every Hypothesis but that of Guilt.
316. Instructing that Circumstantial Evidence must Exclude Ev-
ery "Possible" Hypothesis Except that of Guilt.
317. Instructing that Circumstances must be Absolutely Incom-
patible with Innocence.
318. Instructing that Circumstantial Evidence should Produce
Nearly the Same Degree of Certainty as Direct Evidence.
319. Instructing that Each Link in the Chain of Circumstantial
Evidence must be Proved Beyond Reasonable Doubt — In-
struction Approved.
320. Same — Contrary View.
321. Instructing that Jury Need not be Satisfied Beyond a Rea-
sonable Doubt of' Each Link.
322. Instructing that Circumstantial Evidence Alone may War-
rant Conviction.
323. Instructions Disparaging Circumstantial Evidence.
324. Miscellaneous Instructions on Circumstantial Evidence.
CHAPTER XXX.
CAUTIONARY INSTRUCTIONS ON PRESUMPTIONS OP LAW
AND FACT.
I. Introductory Statement.
§ 325. In General.
TABLE OF CONTENTS. xxv
II. Pbesumption of Innocence.
§ 326. Necessity of Giving Instructions.
327. What Instructions Proper or Sufficient.
III. Presumption that One Intends Natural Consequences or His
Acts.
§ 328. In General.
IV. Presumption of Malice.
§ 329. In General.
V. Presumption from Unexplained Possession of Recently Stolen
Property.
§ 330. View tliat Presumption is a Presumption of Law.
331. View that Presumption is a Presumption of Fact.
332. Same — What Instructions Proper.
333. Same — Instructing that Possession of Recently Stolen Prop-
erty Raises Presumption of Guilt.
334. Same — Instructing that Possession of Recently Stolen Prop-
erty is Strong Evidence of Guilt.
335. Same — Instructing that Burden of Explaining Possession, Is
on Defendant.
336. Instructions as to Defendant's Explanation of Possession.
337. Miscellaneous Instructions.
VI. Presumptions as to Sanity.
§ 338. Scope of Article.
' 339. Presumption that All Men are Sane.
340. Conflicting Presumption of Innocence.
341. Presumption as to Continuance of Insanity.
342. Presumption that Defendant is Feigning Insanity.
VII. Presumption Arising prom Fliqht.
§ 343. In General.
CHAPTER XXXI.
OTHER CAUTIONARY INSTRUCTIONS.
I. Caution against Sympathy or Prejudice.
§ 344. Propriety and Necessity of Instructions' on this Subject.
345. What Instructions may be Given.
xxvi TABLE OF CONTENTS.
II. BuEDEN OF Proof.
S 346. Propriety and Necessity of Giving Instructions.
347. Propriety and Sufficiency of Particular Instructions.
III. Degree of Proof Necessary in Civil Cases.
§ 348. Necessity and Sufficiency of Preponderance of Evidence to
Sustain a Verdict.
349. What Instructions Proper where Evidence Equally Balanced.
350. Instructions Requiring Too High a Degree of Proof — That
Evidence must "Satisfy" Jury.
851. Same — Other Instructions Requiring Too High a Degree of
Proof.
352. Instructing that Preponderance is Determinable by Number
of Witnesses.
IV. Limiting Consideration of Evidence to Purpose for which
Admitted.
§ 353. In General.
354. In Criminal Cases.
355. In Civil Cases.
V. Cautions as to Arguments of Counsel.
§ 356. What Comments on Legitimate Argument Proper.
357. Correcting Erroneous or Improper Argument.
358. At What Stage of Trial Correction Made.
VI. Miscellaneous Late Cases.
§ 359. In General.
360. Duty and Conduct of Jury.
361. Corroboration of Witnesses.
CHAPTEE XXXII.
APPELLATE REVIEW OF INSTRUCTIONS.
I. Exceptions and Objections Below.
§ 362. Objections not Raised Below.
363. Same — Digest of Decisions.
364. Necessity of Exceptions.
365. Same — Digest of Decisions.
366. Sufficiency of Exceptions.
TABLE OF CONTENTS. XXvii
867. Same — Digest of Decisions.
368. Time of Taking Exceptions.
869. Same — Digest of Decisions.
II. Recoed on Appeal.
5 370. Necessity of Bill of Exceptions.
371. Same — Digest of Decisions.
372. What Record must Show, Generally.
373. Preserving Evidence in Record.
374. Preserving Instructions in Record.
III. Presumptions on Appeal.
§ 375. Presumptions against Error.
376. Same — Digest of Decisions.
377. Presumption of Prejudice.
378. Same — Digest of Decisions.
IV. Invited Ebeoe.
§ 379. Instructions Given or Refused on Party's Own Motion.
380. Same — Error Committed by Appellant.
381. Instructions Given by Consent.
V. CONSTEUOTION OP iNSTBtTCTIONS.
§ 382. General Rules.
383. Reasonable and Liberal Construction.
384. Construction to Support Judgment.
385. Construction as a Whole.
VI. Harmless and Revebsible Erroe.
§ 386. General Rules.
387. Same — Digest of Decisions.
388. Error Harmless in View of Evidence.
889. Error in Appellant's Favor.
890. Error Cured by Verdict.
391. Error Cured by Other Instructions or Construction as a
Whole.
INSTRUCTIONS TO JURIES.
CH^TEE I.
DEFINITION AND OFFICE OF INSTRUCTIONS.
§ 1. "What are Instructions.
2. Purpose of Instructions.
§ 1. What are instructions.
Instructions may be shortly defined as directions in re-
gard to the law of the case.^ Statements of rules of law
governing the matter in issue or the amount of recovery
are instructions.^ Other definitions are as follows : By the
suprei^e court of Indiana : "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 accord-
ance with the facts proven."* By Hilliard : "Any decision
or declaration by the court, upon the law of the case, made
in the progress of the cause, and by which the jury are in-
fluenced and the counsel controlled."^ Not every direction
1 Lawler v. McPheeters, 73 !nd. 579; Ellis v. People, 159 111.
337; Jenkins v. Wilmington & W. R. Co., 110 N. C. 438.
2 Bradway v. Waddell, 95 Ind. 170; Stanley v. Sutherland, 54
Ind. 339.
3 Lehman v. Hawks, 121 Ind. 541. The essential idea involved
in the term "instruction" "is that it is authoritative as an exposition
of the law, which the jury are bound * • * to obey." Bouvier,
Law Diet. 310, cited with approval in Dodd v. Moore, 91 Ind. 523.
4 Hilliard, New Trials (2d Ed.) 255.
(1)
1 — Ins. to Juries.
I 2 INSTRUCTIONS TO JURIES. [Ch. 1
or remark addressed by the court to the jury is an instruc-
tion.^ This subject will be treated more in detail in a suc-
ceeding chapter in connection with a consideration of the
statutory requirement, existing in many states, that instruc-
tions must be given in writing.* The instructions, taken as
a whole, are frequently spoken of as the "charge to the
jury."
§ 2. Purpose of instructions.
Instructions to juries serve several distinct purposes. In
the first place, their office is to explain to the jury what the
issues in the cause are,'^ and to confine them to a determina-
tion of such issues, excluding from their consideration all
irrelevant matters.* This is one of the most vital and neces-
sary functions pertaining to instructions. To have the jury
determine for themselves what the issues are under the
pleadings woiild necessarily be productive of great con-
fusion and uncertainty. Jurors have no knowledge of law,
and are unfamiliar with the language in which it is ex-
pressed. Even judges, whose lives have been devoted to a
study of the law, frequently find some difficulty in defining
the issues, and it is not to be supposed that persons totally un-
learned in the law can accomplish that which those who
have made a lifelong study of the subject find difficult of ac-
complishment. Secondly, the office of instructions is to sug-
gest, so far as necessary, the principles of evidence and their
application.® A statement of the rules for testing the cred-
McCallister v. Mount, 73 Ind. 559; McCormick v. Ketchum, 48
Wis. 643; Hinckley v. Horazdowsky, 133 111. 360.
« See post, c. 12, "Necessity of Instructing in Writing."
7 Souvais V. Leavltt, 50 Micli. 108; Forbes v. Jason, 6 111. App.
395.
8 Newell V. St. Louis B. & I. Co., 5 Mo. App. 253.
sSouvais v. Leavitt, BO Mich. 108. See also, Welch t. Ware, 32
Mich. 77.
(2)
Ch. 1] DEFINITION AND OFFICR § 2
ibility of ■witnesses, and estimating the probative force of
tlie various kinds of evidence, is very essential to a correct
conclusion, especially where there is considerable conflict in
the evidence, and the evidence is nearly in equilibrium.
The third and most important function of instructions 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 applying these rules to the facts. •"' The fourth
office which instructions serve is to show the reviewing court
on what theory the trial court decided in cases tried without
a jury."
10 Souvals V. Leavltt, 50 Mich. 108; Sawyer v. Sauer, 10 Kan.
466; State v. Levigne, 17 Nev. 435; First Nat Bank of Lanark v.
Bltemiller, 14 111. App. 22; W^ch v. Ware, 32 Mich. 77; Baxter
V. Peaple, 8 m. 368; Hamilton v. Hunt, 14 IIL 472; Pleasant v.
State, 15 Ark. 625; Hasbrpuck v. City of Milwankee, 21 Wis. 219;
Keeler v. Stuppe, 86 111. 309; Lendberg t. Brothertoa Iron Mln.
Co., 75 Mich. 84.
11 Harrison v. Bartlett, 51 Mo. 170; Ford v. City of Cameron,
19 Mo. App. 467. See, also, Spurgeon v. West, 23 Mo. App. 42.
See, also, post, c 32.
X3)
CHAPTEE n.
PROVINCE OP COURT AND JURY.
1. Questions of Law and Fact.
§ 3. Statement of Rule.
4. Illustrations of Rule.
5. Directing Verdict.
II. CONSTBUOTION OF WBITINGS.
§ 6. Statement of Rule.
7. Written Contracts.
8. Deeds and Mortgages.
9. Miscellaneous Writings.
10. Exceptions to Rule.
11. Rule Where Parol Evidence is Admitted to Explain Writ-
ing.
III. Existence and Inteepeetation of Laws, Okdinances, and
RutES.
5 12. In General.
13. Laws of Foreign State,
14. Municipal Ordinances.
IV. Oeal Contracts and Language.
§ 15. In General.
V. POWEE or JUEY TO JUDGE THE LaW IN CeIMINAL CaSES.
§ 16. Introductory Statement.
17. Arguments for and against Exercise of Right.
18. Rule in England Deducible from Decisions and Text Books.
19. Rule at Common Law in America.
20. Same — What Instructions Proper as to Following Charge of
Court.
21. Summary of Organic and Statutory Provisions Regulating
Practice.
(4)
Ch, 2] PROVINCE OP COURT AND JURY. § 3
22. Provisions Held to Vest Jury with Right to Disregard In-
structions.
23. Same — Propriety or Necessity of Instructing Jury on Law
of the Case.
24. Same — Necessity and Manner of Instructing Jury that They
are Judges of the Law.
25. Provisions Held not to Vest Jury with Right to Disregard
Instructions.
26. Same — Rule in Georgia.
27. Same — Rule in Louisiana.
28. Same — Rule in Massachusetts.
I. Questions of Law and Fact.
§ 3. Statement of rule.
It is the theory of jury trials that the decision of all
questions of law arising in the case is a matter exclusively
within the province of the court ;^ while, upon the other hand,
the determination of all questions of fact is exclusively with-
in the province of the jury.^ It is error to give an instrue-
1 People V. Finnegan, 1 Parker, Cr. R. (N. Y.) 147; Phillips v.
People, 11 111. App. 340; Village of Falrbury v. Rogers, 98 111. 554;
Pennsylvania Co. v. Conlan, 101 111. 93; Tyson v. Rickard, 3 Har.
& J. (Md.) 109; People v. Finnegan, 1 Parker, Cr. R. (N. Y.)
147; Duren v. Kee, 41 S. C. 171; Drake v. State, 60 Ala. 62;
Matthews v. State, 55 Ala. 65; Thomason v. Odum, 31 Ala. 108;
Shaw V. Wallace, 2 Stew. & P. (Ala.) 193; Wright v. Boiling, 27
Ala. 259; Spivey v. State, 26 Ala. 90; Brady v. Clark, 12 Lea
(Tenn.) 323; Ahrens v. Cobb, 9 Humph. (Tenn.) 645; Roberts v.
Alexander, 5 Lea (Tenn.) 414; McCorry v. King's Heirs, 3 Humph.
(Tenn.) 267; George W. Roby Lumber Co. v. Gray, 73 Mich. 356;
People V. Ivey, 49 Cal. 56; Whitney v. Cook, 53 Miss. 551; Myrick
V. Wells, 52 Miss. 149; Riley v. Watson, 18 Ind. 291; Albert v.
Besel, 88 Mo. 150; State v. Mitchell, 98 Mo. 657; State v. Porsythe,
89 Mo. 667; Chicago & E. I. R. Co. v. Stonecipher, 90 111. App.
511; State v. Clough, 111 Iowa, 714. In a jury trial, all questions
of law arising in the progress of the case, and the law of the
whole case after evidence and argument, must be settled and de-
termined by the court alone. Brady v. Clark, 12 Lea (Tenn.)
323. See, also, Hyde v. Town of Swanton, 72 Vt. 242.
2Haun V. Rio Grande W. Ry. Co., 22 Utah, 346; Pennsylvania
(5)
§ 3 INSTRUCTIONS TO JURIES. [Oh. 2
tion which submits the decision of a question of law to the
jury, and a request for such an instruction should, of course,
be refused,* even though the court is held by judges not
required to be learned in the law.*
"In instructing the jury as to the law of the case, the judge
should distinctly separate questions of law from questions
of fact,'"* and it is error to blend questions of law and fact,
Co. V. Conlan, 101 111. 93; Phillips v. People, 11 111. App. 340;
Muldowney v. Illinois Cent. R. Co., 32 Iowa, 176; Farnan v. Childs,
66 111. 544; St. Louis, A. & T. H. R. Co. v. Manly, 58 111. 300;
Mitchinson v. Cross, 58 111. 366; Chesapeake & 0. Canal Co. v.
Knapp, 9 Pet (U. S.) 541; Hogan v. Page, 2 Wall. (U. S.) 605;
Williams t. Shelden, 61 Mich. 311; Sheahen v. Barry, 27 Mich.
217; Frederick v. Gaston, 1 G. Greene (Iowa) 401; Reel v. Elder,
62 Pa. 308; Steffy v. Carpenter, 37 Pa. 41; Hart v. Borough of
Girard, 56 Pa. 23.
3 Shaw V.Wallace, 2 Stew. & P. (Ala.) 193; Pistole v. Street, 5 Port.
(Ala.) 64; Stewart v. Sonneborn, 49 Ala. 178; George W. Roby Lum-
ber Co. V. Gray, 73 Mich. 356; Whitney v. Cook, 53 Miss. 551; Riley v.
Watson, 18 Ind. 291; Vedder v. Fellows, 20 N. Y. 126; Cook v. Mack-
rell, 70 Pa. 12; American Ins. Co. v. Crawford, 7 111. App. 29; Beidler
v. Fish, 14 111. App. 29; International Bank v. Bartalott, 11 111. App.
620; Richardson v. Stewart, 2 Serg. & R. (Pa.) 84; Keating v.
Orne, 77 Pa. 89; Green v. Hill, 4 Tex. 465; Caledonian Ins. Co.
V. Traub, 80 Md. 214; Ragan v. Gaither, 11 Gill & J. (Md.) 472;
State V. Rayburn, 31 Mo. App. 385; St. Louis, K. C. & N. Ry.
Co. V. Cleary, 77 Mo. 634; Turner v. St. Louis & S. F. Ry. Co.,
76 Mo. 261; Morgan v. Durfee, 69 Mo. 469; Erb v. German-Ameri-
can Ins. Co. (Iowa) 83 N. W. 1053; Brown v. Langner, 25 Ind.
jL-pp. 538; Dominick v.- Randolph, 124 Ala. 557; District of Colum-
bia V. Robinson, 180 U. S. 92, affirming 14 App. D. C. 512. An
instruction that "the court will sanction, any verdict the jury may
return" is erroneous, since it leaves too much to the jury. Bock-
oven V. Board of Sup'rs of Lincoln Tp., 13 S. D. 317. In an ac-
tion for breach of contract, it is error to instruct the jury to find
for the plaintiff, unless they find that defendant had legal cause
for his failure to perform. La Porte v. Wallace, 89 111. App. 517.
* Richardson v. Stewart, 2 Serg. & R. (Pa.) 84; Keating v. Orne,
77 Pa. 89.
e Rogers v. Broadnax, 24 Tex. 538.
(6)
oil. 2] PROVINCE OF COURT AND JURY. § 4
and submit the whole to the jury.* It is proper to refuse
and erroneous to give instructions which take away from the
jury the decision of any question of fact.'' It is error for
either the court or the jury to invade the other's province.*
Numerous illustrations and applications of these rules will
be found in the succeeding sections of the work.
S 4. niustrations of rule.
In determining questions of fact, the jury are necessarily
compelled to pass upon the weight and sufficiency of the
evidence introduced to prove or disprove the existence of the
fact, and it is within their exclusive province to do so.^
« Potts V. Wright, 82 Pa. 498.
'Rogers v. Broadnax, 24 Tex. 538; Reynolds v. Williams, 1 Tex.
311; Clark v. Goddard, 39 Ala, 164; McRae v. Scott, 4 Rand. (Va.)
463; Adams v. Roberts, 2 How. (U. S.) 486; Jewell v. Jewell, 1
How. (U. S.) 219; Myrick v. Wells, 52 Miss. 149; Turner v. Loler,
34 Mo. 461; Borrodaile v. Leek, 9 Barb. (N. Y.) 611; White v.
White, 15 N. C. 257; Benson v. Boteler, 2 Gill (Md.) 74; Planters'
Bank v. Bank of Alexandria, 10 Gill & J. (Md.) 346; Burtles v.
State, 4 Md. 273; Pettingill v. Porter, 8 Allen ({Hass.) 1; Van
Duzor V. Allen, 90 111. 499; Hubner v. Feige, 90 111. 208; Landon
V. Chicago & G. T. Ry. Co., 92 111. App. 216; Houston v. State,
4 G. Greene (Iowa) 437; Salter v. Myers, 5 B. Mon. (Ky.) 281;
Baker v. Chatfleld, 23 Fla. 540. On a prosecution for perjury, it
is proper to instruct the jury that the clerk of court had power
to administer the oath, as that is a question of law. State v.
Clough, 111 Iowa, 714.
» Mawich v. Blsey, 47 Mich. 10; Connor v. Johnson, 59 S. C.
115; Howell 7. State (Neb.) 85 N. W. 289. And see, generally,
post, c. 2, "Invading Province of Jury."
» United States Life Ins. Co. v. Lesser, 126 Ala. 568; Hudson v.
Weir, 29 Ala. 294; Cape Girardeau U. M. Co. v. Bruihl, 51 Mo.
144; Haun v. Rio Grande W. Ry. Co., 22 Utah, 346; Welstead v.
Levy, 1 Moody & R. 138. And see, generally, post, § 29 et seq.,
"Invading Province of Jury." Where the case fairly depends upon
the sufiBciency and weight of the evidence, an Instruction that the
jury must find for the defendant if they believed the evidence in the
case is properly refused. United States Life Ins. Co. v. Lesser, 126
§ 4 INSTRUCTIONS TO JURIES. [Ch. 2
The credibility of the witnesses is exclusively a question for
the jury.i" So the inferences of facts from other facts in
evidence are to be drawn by the jury, and not by the court,
except when the evidence is uncontradicted, and there is
no room for reasonable men to draw different conclusions,^'
and except in cases when there is a presumption of law
resulting from the facts proved, in which case the court
may instruct the jury as to the inference to be drawn in
the event that they find the existence of the requisite facts.'^
The existence of the fact of negligence,'^ identity,'* in-
Ala. 568. But where the evidence discloses no conflict, and is suffi-
cient to sustain a verdict for the plaintiff, it is not error to instruct
the jury to find for the plaintiff if they believe the evidence. Hal-
torn V. Southern Ry. Co. (N. C.) 37 S. B. 262.
loHaun V. Rio Grande W. Ry. Co., 22 Utah, 346; State v. Adair,
160 Mo. 391; Howell v. State (Neb.) 85 N. W. 289; Stewart v.
Anderson, 111 Iowa, 329; State v. Cushenberry, 157 Mo. 168; State
V. Tate, 156 Mo. 119; Com. v. Winkelman, 12 Pa. Super. Ct. 497;
Osborn v. State, 125 Ala. 106; Jordan v. State, 81 Ala. 20; State
V. Taylor, 57 S. C. 483; Finch v. State, 81 Ala. 41; Strong v.
State (Neb.) -84 N. W. 410; State v. Dickey (W. Va.) 37 S. E.
695; Tarbell v. Forbes, 177 Mass. 238; Turner v. Grobe (Tex. Civ.
App.) 59 S. W. 583; Gott v. People, 187 111. 249; Owen v. Palmour,
111 Ga. 885; Chavarria v. State (Tex. Cr. App.) 63 S. W. 312;
H. B. Claflin Co. v. Querns, 15 Pa. Super. Ct. 464; Connecticut
Mut. Life Ins. Co. v. Hillmon (C. C. A.) 107 Fed. 834; Southern
Mut. Ins. Co. V. Hudson (Ga.) 38 S. E. 964. The competency of
a young child to testify is for the court, but the credit to be given
to such child's testimony is for the jury. State v. Todd, 110 Iowa,
631.
iiBrownell v. Fuller, 60 Neb. 558; Izlar v. Manchester & A. R.
Co., 57 S. C. 332; Ross v. Citizens' Ins. Co., 7 Mo. App. 575;
Howard v. Carpenter, 22 Md. 10.
12 It is proper for the court to instruct the jury what facts are
and what are not sufficient to justify a presumption. Wheeler v.
Schroeder, 4 R. I. 383.
isHaun v. Rio Grande W. Ry. Co., 22 Utah, 346; Hooper v.
Southern Ry. Co., 112 Ga. 96. An Instruction that certain speci-
fied acts amounted to negligence is erroneous, as the question is
(8)
Ch. 2] PROVINCE OF COURT AND JURY. § 5
sanity,** agency,** notice,*^ intent,** and the like, is a ques-
tion for the jury when the evidence is conflicting and an
inference of fact is to be drawn.
§ 5. Directing verdict.
The rule tjiat the determination of questions of fact rests
exclusively within the province of the jury is subject to
the very important qualification that, in certain cases, the
court may direct the jury to return a perfunctory verdict
in accordance with its direction. The right of the court
to direct a verdict 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.** The test of the right to direct a verdict
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.^" It is proper to direct
one of fact for the jury. Landon v. Chicago & G. T. Ry. Co.,
92 111. App. 216. See Hooper v. Southern Ry. Co., 112 Ga. 96,
wherein a charge was held not open to the objection that it in-
structed the jury as to what was or was not negligence.
"Tatum V. Com. (Ky.) 59 S. W. 32; State v. Perkins (N. H.)
47 Atl. 268; Miller v. Marks, 20 Mo. App. 369; Begg v. Begg, 56
Wis. 534; State v. Bahb, 76 Mo. 504.
16 State V. Jones, 126 N. C. 1099; State v. Geier, 111 Iowa, 706.
"Robinson v. Walton, 58 Mo. 380. •
17 Saltmarsh v. Bqwer, 22 Ala. 221; Muldrow v. Robison, 58 Mo.
331; Van Hook v. Walton, 28 Tex. 59; Berkshire Woolen Co. v.
Proctor, 7 Cush. (Mass.) 417.
18 Winter v. Norton, 1 Or. 42; Betts v. Francis, 30 N. J. Law,
152; Jongs v. Brownfield, 2 Pa. 55; Dumn v. Rothermel, 112 Pa.
272; State v. Hayes, 59 N. H. 450; Lawyer v. Smith, 8 Mich.
411.
19 Fox v. Spring Lake Iron Co., 89 Mich. 387; Parks v. Ross,
11 How. (U. S.) 362; Schuylkill & D. Imp. Co. v. Munson, 14
Wall. (U. S.) 442'.
20 Pleasants v. Fant, 22 Wall. (U. S.) 116; Joeckel v. Joeckel,
§ S INSTRUCTIONS TO JURIES. [Ch. 2
a verdict against the party having the burden of proof,
where no evidence has been introduced to support his theory
of the case,^^ or, what is practically the same thing, where
56 Wis. 436; Merchants' Nat. Bank v. State Nat. Bank, 10 Wall.
(U. S.) 604; Randall v. Baltimore & 0. R. Co., 109 U. S. 478;
Keyes v. Grant, 118 U. S. 25; Marion County Com'rs v. Clark, 94
U. S. 278; Schuylkill & D. Imp. Co. v. Munson, 14 Wall. (U. S.)
442; Bennett v. Covington, 22 Fed. 816; Stewart v. Sixth Ave.
R. Co., 45 Fed. 21; Cole v. Hebb, 7 Gill & J. (Md.) 41; Morris
V. Brickley, 1 Har. & G. (Md.) 107; Tyson v. Tyson, 37 Md. 567;
Bartelott v. International Bank, 119 111. 259; Simmons .v. Chi-
cago & T. R. Co., 110 111. 340; Catlett v. St. Louis, I. M. & S.
Ry. Co., 57 Ark. 461; Giermann v. St. Paul, M. & M. Ry. Co., 42
Minn. 5; Dawson v. Helmes, 30 Minn. 107; Powell v. Missouri
Pac. Ry. Co., 76 Mo. 80; Holland v. Kindregan, 155 Pa. 156; Eister
V. Paul, 54 Pa. 196; Bowman v. Eppinger, 1 N. D. 21; Peet v.
Dakota F. & M. Ins. Co., 1 S. D. 462; Georgia Pac. Ry. Co. v.
Propst, 90 Ala. 1; Lacey v. Porter, 103 Cal. 597; Levltzky v. Canning,
33 Cal. 299; Hathaway v. Judie, 95 Mich. 241; Grand Trunk Ry. Co. v.
Nichol, 18 Mich. 170; Paris v. Hoberg, 134 Ind. 269; Dodge v.
Gaylord, 53 Ind. 365; Oleson v. Lake Shore & M. S. Ry. Co., 143
Ind. 405; Brooks v. Inhabitants of Somerville, 106 Mass. 271;
Reeder v. Dupuy, 96 Iowa, 729; Beckman v. Consolidation Csal
Co., 90 Iowa, 252; Davis v. Robinson, 71 Iowa, 618; Hemmens v.
Nelson, 138 N. Y. 517; Kelly v. Burroughs, 102 N. Y. 93; Corning
V. Troy I. & N. Factory, 44 N. Y. 577; Rich v. Rich, 16 Wend. (N.
Y.) 663; Rudd v. Davis, 3 Hill (N. Y.) 287, 7 Hill, 529; Heimer-
dinger v. Finelite, 11 Misc. Rep. (N. Y.) Ill;, Montfort v. Hughes,
3 E. D. Smith (N. Y.) Ei95.
siCorwin v. Patch, 4 Cal. 204; Kuhland v. Sedgwick, 17 Cal. 123;
Heilbron v. Heinlen, 72 Cal. 376; City of East St. Louis v. O'Flynn,
119 111. 200; Pynchon v. Day, 118 111. 9; Dondero v. Frumveller,
61 Mich. 440; People v. Montague, 71 Mich. 318; Eister v. Paul,
54 Pa. 196; Groft v. Weakland, 34 Pa. 304; Angler v. Eaton, c!
& B. Co., 98 Pa. 5d4; Morley v. Eastern Express Co., 116 Mass.
97; Allen v. Wheeler, 54 Iowa, 628; Murphy v. Chicago, R. I.
& P. R. Co., 45 Iowa, 661; Atkinson v. Blair, 38 Iowa, 156; Mar-
tin V. Martin, 118 Ind. 227; Slayton v. Fremont, E. & M. V. R.
Co., 40 Neb. 840; Hardin v. Sheuey, 40 Neb. 623; Howard v.
Milwaukee & St. P. Ry. Co., 101 U. S. 844; McLeod v. Fourth Nat.
Bank of St Louis, 122 U. S. 528; Alexander v. Harrison 38 Mo
(10)
Ch. 2] PROVINCE OF COURT AND JURY. § 5
there is no evidence of some fact the existence of which is
essential to his case.^^ A material variance may amount to a
failure of proof, and in such case a verdict may be di-
rected.^* Where, however, there is not an entire absence of
evidence, but, on the contrary, the evidence is conflicting,
and the determination of the fact depends upon the weight
of the evidence or the credibility of witnesses, the question
is for the jury, and it is error to direct a verdict.^* So.
where inferences of fact are to be drawn, the question is for
259; Corby v. Butler, 55 Mo. 398; Hunter ▼. Stege, 69 N. Y. Snper.
Ct. 17; MacRitchie v. Johnson, 49 Kan. 321.
22 Wait V. Agricultural Ins. Co., 13 Hun (N. Y.) 371; UnderhHl
V. New Vork & H. R. Co., 21 Barb. (N. Y.) 489; Heyne v. Blair,
§2 N. Y. 19; Neil v. Thorn, 88 N. Y. 270; Frazer v. Howe, 106
111. 563; Alexander v. Cunningham, 111 111. 511; Huschle v. Mor-
ris, 131 111. 587; Harrigan v. Chicago & I. R. Co., 53 111. App. 344;
Continental Life Ins. Co. v. Rogers, 119 111. 474; Noyes v. Rock-
wood, 56 Vt. 647; Allyn v. Boston & A. R. Co., 105 Mass. 77; Camp-
bell T. Roe, 32 Neb. 345; Schrimpton t. Bertolet, 155 Pa. 638; Jack-
son v. Ferris (Pa.) 8 Atl. 435; Baird v. Schuylkill R. E. S. R.
Co., 154 Pa. 463; Lacey v. Porter, 103 Cal. 597
23 Tracy v. Ames, 4 Laws 500 (N. YJ • Strahle v. First Nat. Banu of
Stanton. 47 Neb: 319; Ferguson v. 1 acker, 2 Har. & G. (Md.) 182.
2* Lever v. Foote, 82 Hun (N. Y.) 393; Bridgeport City Bank
v. Empire Stone Dressing Co., 30 Barb. (N. Y.) 421; Moulor v.
American Life Ins. Co., 101 U. S. 708; Northern Pac. R. Co. t.
Conger, 12 U. S. App. 240; Orleans v. Piatt, 99 U. S. 676; Hiatt
Y. Brooks, 17 Neb. 33; Lent v. Burlington & M. R. R. Co., 11 Neb.
201; Lau v. Fletcher, 104 Mich. 295; Wisner v. Davenport, 5
Mich. 501; People v. Hubbard, 92 Mich. 322; Fitzgerald v. Ander-
son, 81 Wis. 341; Dirimple v. State Bank, 91 Wis. 601; Chicago,
B. & Q. R. Co. v. Payne, 59 111. 534; Gallagher v. Kilkeary, 29
111. App. 415; H. B. Claflin Co. v. Querns, 15 Pa. Super. Ct. 464;
Ramage v. Peterman, 25 Pa. 349; McKnight v. Bell, 168 Pa. 50;
Brownfield v. Hughes, 128 Pa. 194; Piatt v. Chicago, St. P., M. &
O. Ry. Co., 84 Iowa, 694; Orr v. Cedar Rapids & M. C. Ry. Co.,
94 Iowa; 423; Colorado C. & I. Co. v. John, 5 Colo. App. 213;
McQuown V. Thompson, 5 Colo. App. 466.
(11)
§ 5 INSTRUCTIONS TO JURIES. [Ch. 2
the jury, unless the case is such that there is no room for
reasonable men to draw different conclusions. ^^ 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;^* but the better authority is to the effect that,
if the evidence is so insufiicient to support a verdict for
plaintiff that, if returned, it must be set aside, a verdict
may be directed for defendant. The question of the exist-
ence 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.^^ In some jurisdictions,
the practice of directing a verdict is not looked upon with
favor, and is very strictly limited. ,2 ^a
25 Alabama Gold Life Ins. Co. v. Mobile Mut. Ins. Co., 81 Ala.
329; Rich v. Rich, 16 "Wend. (N. Y.) 663; Heyne v. Blair, 62
N. Y. 19; Milne v. Walker, 59 Iowa, 186; Teipel v. Hilsendegen,
44 Mich. 461; Stevens v. Pendleton, 85 Mich. 137; Suiter v. Park
Nat. Bank, 35 Neb. 372; Knight v. Towles, 6 S. D. 575.
26Schuchardt v. Aliens, 1 Wall. (U. S.) 359; Hickman v. Jones,
9 Wall. (U. S.) 197; Dwyer v. St. Louis & S. P. R. Co., 52 Fed.
87; Haugen v. Chicago, M. & St. P. Ry. Co., 3 S. D. 394; Fitz-
water v. Stout, 16 Pa. 22; Charles v. Patch, 87 Mo. 450; Thompson
V. Thompson, 17 B. Mon. (Ky.) 22; Colt v. Sixth Ave. R. Co.,
49 N. Y. '671; Little Rock & Ft. S. Ry. Co. v. Henson, 39 Ark.
413; Reynolds v. Williams, 1 Tex. 311; Kelley v. Ryus, 48 Kan.
120; Workingmen's Banking Co. v. Blell, 57 Mb. App. 410. The
doctrine announced in these and other like cases is in some states
considerably modified, if not overruled, by later cases. See the cases
cited supra, this section, and other like cases.
sTBartelott v. International Bank, 119 111. 259; Schuylkill & D.
Imp. Co. V. Munson, 14 Wall. (U. S.) 442; Hathaway v. East Ten-
nessee, V. & G. R. Co., 29 Fed. 489; Catlett v. St. Louis, I. M. &
S. Ry. Co., 57 Ark. 461; Illinois Cent. R. Co. v. Boehms, 70 Miss.
11; Holland v. Kindregan, 155 Pa. 156; Patterson v. Dushane, 115
Pa. 334; Howard Express Co. v. Wile, 64 Pa. 201; Bagley v. Bowe,
105 N. Y. 171; Jones v. Chicago & N. Ry. Co., 49 Wis. 352. But
compare Denny v. Williams, 5 Allen (Mass.) 1; Carver v. Detroit
& S. Plank Road Co., 61 Mich. 584; Halpin v. Third Ave. R. Co.,
40 N. Y. Super. Ct. 175; Spiro v. Felton, 73 Fed. 91.
(12)
Ch. 2] PROVINCE OF COURT AND JURY § 5
In California it was held that to instruct the jury that
plaintiil was entitled to recover was within the constitu-
tional provision against charging on matters of fact, but
that the error was harmless, as' a verdict for defendant would
have been contrary to the evidence. This holding seems to
involve both court and jury in an unfortunate dilemma. The
court may set aside the verdict as against the evidence. But
if successive juries are equally obstinate, and the jury insists
on its constitutional prerogative of passing on the facts,
and the court sets aside the verdict of the jury as often as
it is rendered, a logical deadlock is created, from which there
is no escape.**
In a criminal case, it is never proper to direct a verdict
of guilty;*® but 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.^" Where there is some
evidence of guilt, the court may, of course, decline to direct
27a Keel V. Herbert, 1 Wash. (Va.) 203; Reynolds v. Williams, 1
Tex. 311; Robinson v. Louisville & N. R. Co., 2 Lea (Tenn.) 596;
Ayres v. Moulton, 5 Cold. (Tenn.) 154; Jones v. Cherokee Iron
Co., 14 Lea (Tenn.) 157; Deshler v. Beers, 32 111. 368.
^sLavitzky v. Canning, 33 Cal. 299.
2» State V. Wilson, 62 Kan. 621; United States v. Taylor, 11 Fed.
470; People v. McCord, 76 Mich. 200; Tucker v. State, 57 Ga. 503.
But see State v. Beal, 94 Me. 520; People v. Neumann, 85 Mich.
98; People v. Klrsch, 67 Mich. 539; United States v. Anthony,
11 Blatchf. 200, Fed. Cas. No. 14,459.
30 United States v. Fullerton, 7 Blatchf. 177, Fed. Cas. No. 15,176;
State V. Smith, 28 Iowa, 565; People v. Bennett, 49 N. Y. 137;
Baker v. State, 31 Ohio St. 314; Com. v. Yost, 197 Pa. 171; State
v. Flanagan (W. Va.) 35 S. B. 862; Gann v. State (Tex. Cr.
App.) 57 S. W. 837. Contra, People v. Daniels, 105 Cal. 262.
"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. 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 verdict of not guilty. State v. Den-
nison, 60 Neb. 157.
(13)
§ 6 INSTRUCTIONS TO JURIES. [Ch. 2
an acquittal, and may leave the question to the jury;^^ and
whatever the state's evidence may be, the court is not bound
to direct an acquittal until the conclusion of all the testi-
mony.^*
II. CONSTBUCTION OF WEITINQS.
§ 6. Statement of rule.
The construction and legal effect of written instruments
is a question of law falling within the exclusive province
of the court,** and it is the duty of the jury to accept and
31 State V. Utley, 126 N. C. 997; State v. Costner (N. C.) 37
S. B. 326; Gott v. People, 187 111. 249; Com. v. Foster (Ky.) 61
S. W. 271; State v. Hyde, 22 Wash. 551.
82 Com. V. George, 13 Pa. Super. Ct. 542.
»8 Carlisle v. State (Tex. Cr. App.) 56 S. W. 365; Brown v.
Langner, 25 Ind. App. 538; Robbins y. Spencer, 121 Ind. 594;
McHenry v. Marr, 39 Md. 510; Osceola Tribe, No. 11, v. Rost, 15
Md. 295; Williams v. Woods, 16 Md. 220; Baltimore & 0. R. Co.
V. Resley, 14 Md. 424; Hatch v. Pendergast, 15 Md. 251; Solary
v. Stultz; 22 Fla!. 263; Jordan v. Easter, 2 111. App. 73; Gray v.
Central R. Co., 11 Hun (N. Y.) 70; Brady v. Cassidy, 104 N. Y.
155; First Nat. Bank of Springfield v. Dana, 79 N. Y. 108; Turner
T. Yates, 16 How. (U. S.) 14; Levy v. Gadsby, 3 Cranch (U. S.)
180; Brown v. Moore, 26 S5. C. 160; Jones v. Swearingen, 42 S.
C. 58; Caldwell v. Dickson, 26 Mo; 60; Carpentier v. Thirston, 24
Cal. 268; Plckerell v. Carson, 8 Iowa, 544; Chandler v. Keller,
44 Iowa, 371; Daly v. W. W. Kimball Co., 67 Iowa, 132; Lucas v.
Snyder, 2 G. Greene (Iowa) 490; Wason v. Rowe, 16 Vt. 525;
Thomas' Ex'r v. Thomas, 15 B. Mon. (Ky.) 178; Rogers v. Colt,
.21 N. J. Law, 704; Williams v. Waters, 36 Ga. 454; Nash v. Drisco,
51 Me. 417; Smith v. Faulkner, 12 Gray (Mass.) 257; Drew v.
Towle, 30 N. H. 531; Burke v. Lee, 76 Va. 386; Van Eman v.
Stanchfield, 8 Minn. 518 (Gil. 460); State v. Moy LiOoke, 7 Or. 54;
Tolmle V. Dean, 1 Wash. T. 46; Mowry r. Stogner, 3 S. C. 251;
Jones v. Pullen, 66 Ala. 306; Price v. Mazange, 31 Ala. 701; Bern-
stein V. Humes, 60 Ala. 582; Holman v. Crane, 16 Ala. 571; Bell
T. Keepers, 37 Kan. 64; Thompson v. Richards, 14 Mich. 172;
Gage V. Meyers, 59 Mich. 300; Stadden v. Hazzard, 34 Mich. 76;
Rice V. Crow, 6 Heisk. (Tenn.) 28; Ahrens v. Cobb, 9 Humph.
(14)
Ch. 2] PROVINCE OF COURT AND JURY. g 6
•
follow the construction put upon the instrument hy the
court.^^ Hence, instructions which submit to the jury the
construction of writings are erroneous, and should not be
given,** especially where the court has been requested to
construe the writing and direct the jury as to its effect.**
(Tenn.) 645; Powell v. Finch, 5 Terg. (Tenn.) 446; Benson v.
Benson, 24 Miss. 625; Randolph v. Govan, 14 Smedes & M. (Miss.)
9; Watson v. Blaine, 12 Serg. & R. (Pa.) 131; Denison's Ex'r v.
Wertz, 7 Serg. & R. (Pa.) 372; Howell v. Hanrick (Tex. Civ.
App.) 24 S. W. 823; McCormick v. Cheveral, 2 Posey, Unrep. Cas.
(Tex.) 146; Soell v. Hadden, 85 Tex. Ig2; Hunton v. Nichols, 55
Tex. 217; Dwlght v. Germanla Life Ins. Co., 103 N. Y. 341; Sellars
T. Johnson, 65 N. C. 104; Neilson v. Harford, 8 Mees. & W. 806.
8* Neilson v. Harford, 8 Mees. & W. 823, per Parke, B.
so Fairly v. Fairly, 38 Miss. 280; Rice v. Crow, 6 Helsk. (Tenn.)
28; Osceola Tribe, No. 11, v. Rost, 15 Md. 295; Jordan y. Easter,
2 111. App. 73; Hatch v. Pendergast, 15 Md. 251; Solary v. Stultz,
22 Fla. 263; Chandler v. Keller, 44 Iowa, 371; Jones v. Pullen, 66
Ala. 306; Southern Express Co. v. Crook, 44 'Ala. 468; Claghorn
V. Lingo, 62 Ala. 230; Brown v. Langner, 25 Ind. App. 538, hold-
ing that it Is error to leave to the jury the question whether
or not specifications referred to in a contract were a part thereof.
State V. Lefaivre, 53 Mo. 470. "If the meaning of a writtep paper
be disputed, it is the province of the court to construe it, upon
application by either party for that purpose; but until the court
has decided its true construction, each party has the right to put
upon its language such interpretation as the words employed will
warrant. Nor is there any limitation upon the power of the court
to construe instruments whilst the cause is being tried. It is most
convenient to decide such questions in advance of the argument,
but, if they arise pending the discussion, the court has the right
to settle them by instructions before the jury retire." McHenry
V. Marr, 39 Md. 510. The error is harmless, and not ground for
reversal, if fhe jury put the proper construction upon the instru-
ment. Martineau v. Steele, 14 Wis. 273; Brooks v. Standard Fire
Ins. Co., 11 Mo. App. 350.
36Kendrick v. Cisco, 13 Lea (Tenn.) 247. "It is the right of
every suitor to have the opinion of the court on such matters .
as, by the law of the land, the court is bound to decide, and one
of these matters is the construction of written contracts." Denison's
Ex'r v. Wertz, 7 Serg. & R. (Pa.) 376.
(15)
§ 7 INSTRUCTIONS TO JURIES. [Ch.2
The' reasons in favor of the rule stated are obvious. As was
well said in one case, unless the court shall construe writ-
ten instruments after the meaning of the words in which
they are couched has been ascertained by the jury, "there
would be no certainty in the law ; for a misconstruction by
the court is the proper subject, by means of a bill of ex-
ceptions, of' redress in a court of error ; but a misconstruc-
tion by the jury cannot be set right at all effectually."'^ So,
if the jury were permitted to construe written instruments,
no paper would have any certain legal significance, as it
would depend upon the peculiar notions of each particular
jury under whose supervision it might be brought**
§ 7. Written contracts.
All written contracts, of whatever nature, are to be con-
strued by the court f^ and if the court erroneously interprets
37 Neilson v. Harford, 8 Mees. & W. 822, per Parke, B. See, also,
to same effect, Denison's Ex'r v. Wertz, 7 Serg. & R. (Pa.) 376'.
3» Cook's Lessee v. Carroll, 6 Md. 104.
"Harvey v. Vandegrift, 89 Pa. 346; Bryant v. Hagerty, 87 Pa.
256; Esser v. Linderman, 71 Pa. 76; Van Eman v. Stanchfield, 8
Minn. 518 (Gil. 460); American Ins. Co. v. Butler, 70 Ind. 1;
Brown v. Langner, 25 Ind. App. 538; Comer v. Himes, 49 Ind.
482; Robbins v. Spencer, 121 Ind. 600; H. G. Olds Wagon Works
V. Coombs, 124 Ind. 62; Symmes v. Brown, 13 Ind. 318; Spalding
v. Taylor, 1 Mo. App. 34; Miller v. Dunlap, 22 Mo. App. 97; Com-
fort v. Ballingal, 134 Mo. 289; Willard v. Sumner, ■ 7 Mo. App.
577; Brooks v. Standard Fire Ins. Co., 11 Mo. App. 349; Long T.
McCauley (Tex.) 3 S. W. 689; Hibernia Ins. Co. v. Starr (Tex.)
13 S. W. 1017; Lary v. Young (Tex. Civ. App.) 27 S. W. 908;
Linch V. Paris L. & G. Co. (Tex.) 14 S. W. 701; State v. Williams
(S. C.) 10 S. E. 876; Slatten v. Kpnrath, 1 Kan. App. 636; Tomp-
kins V. Gardner & Spry Co., 69 Mich. 58; Wagner v. Egleston, 49
Mich. 218; Kendrick v. Cisco, 13 Lea (Tenn.) 247; Louisville &
N. R. Co. V. McKenna, 13 Lea (Tenn.) 280; Knoxville, C. G. &
L. R. Co. V. Beeler, 90 Tenn. 549; Roberts v. Alexander, 5 Lea
(Tenn.) 412; Estes v. Boothe, 20 Ark. 590; Fairbanks v. Jacobs,
69 Iowa, 265; Vaughn v. Smith, 58 Iowa, 553; Kilbourne v. Jen-
(16)
Ch. 2J PROVINCE OF OOUHT AND JURY. § 7
its terms, this will, in general, he a sufficient ground for re-
versal.*** "What a contract means is a question of law. It
is the court, therefore, that determines the construction of
a contract. The court does not state the rules and principles
of law by which the jury are to be bound in construing the
language which the parties have used, and then direct the
jury to apply them at their discretion to the question of
construction ; nor does it refer to these rules, unless it thinks
proper to do so for the purpose of illustrating and explaining
its own decision. But it gives to the jury, as matter of law,
what the legal construction of the contract is, and this the
jury are bound absolutely to take."*-'
"It would be a dangerous principle to establish, where par-
ties have reduced their contracts to writing, and defined the
meaning by plain and unequivocal language, to subject their
interpretation to the arbitrary and capricious judgment of
persons unfamiliar with legal principles and settled rules
of construction."*^ It is proper, therefore, to refuse instruc-
nings, 40 Iowa, 473; Andrews v. Tedford, 37 Iowa, 314; Rohra-
bacher v. Ware, 37 Iowa, 85; Eyser v. Weissgerber, 2 Iowa, 463;
Merrill v. Packer, 80 Iowa, 542; Luckhart v. Ogden, 30 Gal. 548;
Kidd V. Cromwell, 17 Ala. 648; Taylor v. Kelly, 31 Ala. 59; Sellars
V. Jotmson, 65 N. C. 104; Emery v. Owings, 6 Gill (Md.) 199;
Keefer v. Mattingly, 1 Gill (Md.) 182; Baltimore & O. R. Co. v.
Resl«y, 14 Md. 424; Osceola Tribe, No. 11, v. Rost, 15 Md. 296;
Chicago, B. <& Q. R. Co. v. Hale, 2 111. App. 150; Keeler v. Herr,
157 111. 57; Peoria Grape Sugar Co. v. Frazer, 26 111. App. 60;
Thomas v. Dickinson, 23 Barb. (N. Y.) 481; Brady v. Cassidy,
104 N. Y. 155; Connolly v. Hamill, 3 Hun (N. Y.) 399; Arctic Fire
Ins. Co. V. Austin, 69 N. Y. 470; Cohn v. Stewart, 41 Wis. 527;
Parker v. Ibbetson, 4 C. B. (N. S.) 346; Neilson v. Harford, 8
Mees. & W. 822.
40 stroh V. Hess, 1 Watts & S. (Fa.) 147; American Ins. Co. v.
Butler, 70 Ind. 1. •
412 Parsons, Contracts (6th Ed.) 492, approved In Estes t.
Boothe, 20 Ark. 590.
42 Brady v. -Cassidy, 104 N. T. 155.
, , (17)
2 — Ins. to Juries.
§ 8 INSTRUCTIONS TO JURIES. [Ch. 2
tions which suhmit to the jury the determination of the
meaning and effect of a written contract,*^ and error to
leave the construction of a contract to the jury.** The error
will not always operate to reverse, however ; as, for instance,
where the jury construe the contract correctly.*^ So, a sub-
mission of the contract to the jury for construction will not
operate to reverse where the court would have been obliged
to construe it adversely to the complaining party.*®
§ 8. Deeds and mortgages.
The meaning and legal effect of a deed is a matter for
the determination of the court,*'' and a submission to the
jury to determine the meaning and effect is erroneous, but,
43 Peoria Grape Sugar Co. v. Frazer, 26 111. App. 60; Baltimore
& 0. R. Co. V. Resley, 7 Md. 297.
44 Merrill v. Packer, 80 Iowa, 542; Rohrabacher v. Ware, 37
Iowa, 85; Andrews v. Tedford, 37 Iowa, 314; Tompkins v. Gardner
& Spry Co., 69 Mich. 58; Miller v. Dunlap, 22 Mo. App. 97; Spald-
ing V. Taylor, 1 Mo. App. 34.
45 Comfort V. Ballingal, 134 Mo. 289; Martineau v. Steele, 14 Wis.
273; Roberts v. Alexander, 5 Lea (Tenn.) 412; Knoxville, C. G.
& L. R. Co. V. Beeler, 90 Tenn. 548.
46 Taylor v. Kelly, 31 Ala. 59.
47 Hodges V. Strong, 10 Vt. 247; Gardner v. Stall, 34 Tex. 561;
Eddy V. Chace, 140 Mass. 471; Hancock v. Whybark, 66 Mb. 672;
Johnson v. Shively, 9 Or. 333; Rogers v. Carey, 47 Mo. 232; Huth
V. Carondelet Marine R. & D. Co., 56 Mo. 207; State v. Delong,
12 Iowa, 453; Whiteford v. Munroe, 17 Md. 135; American Ex-
change Bank v. Inloes, 7 Md. 380; Humes v. Bernstein, 72 Ala. 546;
McCutchen's Adm'rs v. McCutchen, 9 Port. (Ala.) 650; Vincent v.
Huff, 8 Serg. & R. (Pa.) 381; St. John v. Bumpstead, 17 Barb.
'(N. Y.) 100: Venable v. McDonald, 4 Dana (Ky.) 336; Miller v.
Shackleford, 4 Dana (Ky.) 264; Symmes v. Brown, 13 Ind. 318;
Poage V. Bell, 3 Rand. (Va.) 586; Addington v. Etheridge, 12
Grat. (Va.) 4^6; Stark v. Barrett, 15 Cal. 361; Seaward v. Malotte,
15 Cal. 304; Dean v. Erskine, 18 N. H. 81; Hurley v. Morgan,
18 N. C. 425; Montag v. Linn, 23 111. 551; Smith v. Clayton, 29
N. J. Law, 357; Brown v. Huger, 21 How. (U. S.) 305; Bonney v.
Morrill, 52 Me. 252.
(18) ,
Ch. 2] PROVINCE OF COURT AND JURY. § 9
if the jury correctly determine its meaning, the error is not
ground for reversal.''* The construction of mortgages is
also for the court,** and likewise the question whether an
instrument is or is not a mortgage.^" It is erroneous to
submit to the determination of the jury the sufficiency of
the description in a chattel mortgagfi-''*
§ 9. ]liIiscellan«ous writings.
It is the province and duty of the court to construe the
following .writings: Bills of lading,^^ leases,** receipts,'*
patents,** entries in hooks of corporations,** bonds,*^ judi-
cial opinions,** indorsements on negotiable paper,** notices
of protest,*" awards,*^ assignments of bonds,*^ assignments
for the benefit of creditors,** partnership agreements,** in-
48 Morse V. Weymouth, 28 Vt. 824; Woodman v. Chesley, 39
Me. 45.
*9 United States v. Hodge, 6 How. (U. S.) 279; St. John v. Bump-
stead, 17 Barb. (N. Y.) 100.
60 Fairbanks v. Bloomfield, 2 Duer (N. Y.) 349.
61 Austin V. French, 36 Mich. 200.
62 Armstrong v. Chicago, St. P. & K. C. Ry. Co, 62 Mo. App.
639.
63 Dumn V. Rothermel, 112 Pa. 272.
64 Union Bank v. Heyward, 15 S. C. 296.
soNeilson v. Harford, 8 Mees. & W. 806.
66 Richmond Trading & Mfg. Co. v. Parquar, 8 Blackf. (Ind.) 89.
67 Butler V. State, 5 Gill & J. (Md.) 511.
68 Brady v. Clark, 12 Lea (Tenn.) 323.
69 Sweeny v. Easter, 1 Wall. (U. S.) 166.
60 Piatt V. Drake, 1 Doug. (Mich.) 296.
61 Moore v. Miller, 4 Serg. & R. (Pa.) 279; Squires v. Anderson,
54 Mo. 197, in which it was held that "whether the arbitrators have
authority to act in reference to any particular subject-matter, or
whether their award conforms to the directions and powers given
them by the submission, and the proper construction to be given
to the award when made," are questions for the determination of
the court.
62 De Graaf v. Wyckoff, 13 Daly (N. Y.) 366.
63 Sheldon v. Dodge, 4 Denio (N. Y.) 217.
(19)
§ 9 INSTRtrCTIONS TO JURIES. [Ch. 2
STli-anee policies,®' a writ of summons,** affidavits,*'' town
plats,*® and documentary evidence.** So, public records
must be construed by the court, when offered in evidence. ''*'
When a judicial record is offered in evidence, and admitted
and laid before the jnry, it is the duty of the court to state
to them what it proves, and their duty in respect to the
facts so proved.''^ So, it is proper for the trial judge to
construe the order of the court in a former cause allowing
a certain per cent, of moneys collected.''^ It is alst> the
duty of the court to construe wills, and tell the jury the
proper, interpretation thereof. '^^ So, the court must deter-
mine whether or not an instrument is a will.''*
6* Kingsbury v. Tharp, 61 Mich. 216.
66 St. Louis Gaslight Co. v. American Fire Ins. Co., 33 Mo. App.
348; Lapeer Oo. Farmers' Mut. Fire Iiis. Ass'n v. Doyle, 30 Mich.
159.
e« Alabama G. S. R. Co. v. Hawt, 72 Ala. 112.
67 Long V. Rodgers, 19 Ala. 321.
68 Hanson v. Eastman, 21 Minh. 509.
6» Beaumont Pasture Co. v. Cleveland (Tex. Civ. App.) 26 S.
W. 93; Branch Bank at Mobile v. Boykin, 9 Ala. 320; Turner v.
First Nat. Bank of Madison, 78 Ind. 19; Ivey v. Williams, 78 Tex.
685.
70 State V. Prine, 25 Iowa, 231; State v. Anderson, 30 La. Aim.
557; Sims v. Boynton, 32 Ala. 353; Adams v. Betz, 1 Watts (Pa.)
4S5; Shook v. Blount, 67 Ala. 301, in which it was held that,
where "the defendant relies on a decree of the chancery court to
show a release of the plaintiff's cause of action, the court must con-
strue the decree, and determine from its face whether it was in-
tended to operate as a release," and that it was erroneous to submit
this question to the jury.
Ti Gallup V. S'ox, 64 Conn. 491.
72 State V. Corbin, 16 S. C. 539.
»3 Green V. Collins, 28 N. C. 139; Magiee v. McTSTeil, 41 Miss. 17;
Sullivan v. Honacker, 6 Fla. 372; Sartor v. Sartor, 39 Tiliss. 760;
Roe V. Taylor, 45 111. 485; Dffwning V. Bain, 24 Ga. 372; Willson
V. Whitfield, 38 Ga. 269; Underbill v. Vandervoort, 56 N. Y. 242.
7* Stanley v. Samples, 2 Posey, Unrep. Gas. fTex.) 126. In ttis
case it was held that "where the tetnis of an fustrumenit Showed it
(20)
Ch. 2] PROVINCE OP COURT AND JURY. | IQ
It, is for the cquirt to determine wh.etlj.er letters introduced
in evidence constitute a contract/^ and, if so, to construe
it and explain to the jury its legal effect,''* It cannot be
left to the jury to interpret and construe itJ'
It is a question of law, and not of fact, whether or not a
written commission appointing a special policeman entitles
him to carry a pistol. ''*
§ 10. Exceptions to rule.
There are some apparent exceptions to the rule stated.
Thus, if writings are introduced in evidence for the sole
purpose of showing some extrinsic fact, and not as dis-
positive instruments, the inference to be drawn therefrom
is for the jury, and not for the court.''* When documents
are offered in evidence as a foundation of inferences of fact,
whether inferences can be drawn is for the jury. The most
authentic documents, when offered for such a purpose, be-
come no more than letters or a written correspondence which,
when offered to prove a fact, are to be interpreted by a
jury.** Where a writing is offered in evidence merely to
prove some other fact, "it is generally but a link in a chain
to be a ■will, the court should have so instructed the jury, and
it was error to submit to them the question whether it was a will or
a deed."
75 Lea V. Henry, 56 Iowa, 662.
76Goddard v. Foster, 17 Wall. (U. S.) 123; Smith y. Faulkner,
12 Gray (Mass.) 251; Battershall v. Stephens, 34 Mich. 68; Luck-
hart V. Ogden, 30 Cal. 548; Falls Wire Mfg. Co. v. Broderick, 12
Mo. App. 378.
"Battershall v. Stephens, 34 Mich. 68.
78 Carlisle v. State (Tex. Cr. App.) 56 S. W. 365.
78Primim v. Haren, 27 Mq. 205; Mantz v. Maguire, 52 Mo. App.
146; McKean v. Wageablast, 2 Grant Cas. (Pa.) 46.6; Reynolds
V. Richards, 14 Pa. 206; WHsoo v. Board Education of Lee's
Summit, 63 Mo. 142; Keefer v. Mattingly, 1 Gill (Md.) 182.
80 Primm v. Haren, 27 Mo. 205.
in)
§ 11 I>FSTRUCTIONS TO JURIES. [Ch. 2
of evidence, the accompanying evidence being mostly, or al-
together, oral. When that occurs, the jury have to pass
upon the whole transaction, of which the writing is but a
part. The question, then, is not so much what the docu-
ment means, but what inference shall be drawn from its
meaning, and what effect it shall have towards proving the
point at issue. The writing and all the concomitant evi-
dence go to the jury together. * * * It [the court] may
pronounce what meaning the writing is or is not capable of,
and whether it is not relevant to the issue ; still the value and
effect of such evidence is a question of fact for the jury."*^
§ 11. Rule where parol evidence is admitted to explain writ-
ing.
It happens not infrequently that a writing cannot be con-
strued without resorting to parol evidence of extrinsic facts
and circumstances. Some of the terms in which a writing
is expressed may be words of science or art, which require
the evidence of experts to explain, or the words or terms
used may be ambiguous or uncertain, and not to be under-
stood except, by reference to and in connection with the
surroimding circumstances. In a number of eases it is stat-
ed that, where the meaning of a contract is to be ascertained
by facts aliunde in connection with the written language,
very much must be left to the jury,*^ that "an admixture of
parol with written evidence draws the whole to the jury,"*^
and that the construction of the writing is a question of fact
for the jury.^* An examination of these cases will show
81 state V. Patterson, 68 Me. 475.
saSewall v. Henry, 9 Ala. 31; Gardner v. Clark, 17 Barb. (N. Y.)
551; First Nat. Bank of Springfield v. Dana, 79 N. Y. 116.
83Sidwell V. Evans, 1 Pen. & W. (Pa.) 386; Watson v. Blaine,
12 Serg. & R. (Pa.) 131; Poster v. Berg, 104 Pa. 328.
84 Jennings v. Sherwood, 8 Conn. 122; Ginsburg v. Cutler & S
(22)
Ch. 2] PROVINCE OF COURT AND JUKY. § n
that the statements set out were dicta, and not involved in
the decisions made. Even conceding that they were actual
holdings, they would he against the great weight of author-
ity, the rule being that, in case parol evidence becomes nec-
essary to a. determination of the meaning of words or terms
in a written instrument, such evidence must, of course, be
addressed to the jury, whose duty it is to determine the mean-
ing of the doubtful words or terms; but the court determines
the meaning and effect of the instrument with such light
as the verdict may afford on the question submitted to the
jury.*^ The court has no right to take from the jury the
Lumber Co., 85 Mich. 439; Harper v. Kean, 11 Serg. & R. (Pa.)
278.
85 Hutchison v. Bowker, 5 Mees. & W. 540; Neilson v. Harford,
8 Mees. & W. 822; Cunningham v. Washburn, 119 Mass. 227; Smith
V. Faulkner, 12 Gray (Mass.) 251; Eaton v. Smith. 20 Pick. (Mass.)
150; Burnham v. Allen, 1 Gray (Mass.) 496; Goddard v. Foster,
17 Wall. (U. S.) 142; Curtis v. Martz, 14 Mich. 505; Coquillard
V. Hovey, 23 Neb. 622: Meyer v. Shamp, 51 Neb. 424; H. G. Olds
Wagon Works v. Coombs. 124 Ind. 65; Zenor v. Johnson, 107 Ind.
69; Ganson v. Madigan, 15 Wis. 158; State v. Patterson, 68 Me.
473; Long v. McCauIey (Tex.) 3 S. W. 689; Silverthorn v. Fowle,
49 N. C. 362; Mowry v. Stogner, 3 Rich. (S. C.) 251; Osceola Tribe,
No. 11, Y. Rost, 15 Md. 296; Evans v. Negley, 13 Serg. & R. (Pa.)
220; West v. Smith, 101 U. S. 263; Kendrick v. Cisco, 13 Lea
(Tenn.) 248; Festerman v. Parker, 32 N. C. 474; Helmholz v. Bver-
Ingham, 24 Wis. 266:- Philibert v. Burch, 4 Mo. App. 470; Gardner
V. Clark, 17 Barb. (N. Y.) 538; Etting v. Bank of United States,
11 Wheat. (U. S.) 59. "There is a large class of writings where
the meaning of particular words or phrases or characters or ab-
breviations must be shown by evidence outside the writing, and
there may be extrinsic circumstances of one kind or another, af-
fecting its interpretation, which may be shown by oral testimony.
Here the same rule virtually applies as before. 'It is often, but
inaccurately, said, in cases of the kind named, that the writing
itself is to be passed upon and construed by the jury. Strictly,
that is not so. They find what the oral testimony shows, and the
court declares what the writing means, in the light of the facts
found by the jury." State v. Patterson, 68 Me. 474.
(23)
§ 11 INSTRUCTIONS TQ JURIES. [Ch. 2
determination of the meaning of the doubtful words or
terms f^ but it will be equally erroneous to submit to the
jury the construction of the entire contract.*'^ The court
may pursue two courses, 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.''^* In other woirds, "the
facts may be found by a special verdict,, and then the court
interpret the writing in view of such finding."*® "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."®"
86 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 under-
talcing 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
contract was a direct undertaking; but the question of direct un-
dertaking or guaranty should be directly submitted to the jury,
on proper instructions."
sTMowry v. Stogner, 3 Rich. (S, C.) 251. In this case, which was
a proceeding "to recover possession of land, the plaintiffs gave in
evidence, as a muniment of their title, a deed of doubtful construc-
tion, and defendants were allowed to give parol evidence of the
acts and declarations of the parties to the deed, for the purpose
of explaining the construction. The plaintiffs requested the pre-
siding judge to charge upon the construction of the 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."
S8 state V. Patterson, 68 Me. 474.
89 State V. Patterson, 68 Me. 474; Hutchison v. Bowker, 5 M'ees.
& W. 535, 540; I'ruin v. Crystal Ry. Co., 89 Mo. 397.
00 State V. Patterson, 68 Me. 473 ; Humes v. Bernstein, 72 Ala.
546; Edwards v. Smith, 63 Mo. 119; Taylor v. McNutt, 58 Tex.
71; Helmholz v. Everingham, 24 Wis. 266; Pesterman v. Parker,
32 N. C. 474; "West v. Smith, 101 U. S. 263; Eaton v. Smith, 20
Pick. (Mass.) 150; Stlverthorn v. Fowle, 49 N. C. 362; Long it.
(24)
Ch. 2] PROVINCE OF COURT AND JURY. § 12
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.®^ Whether
or not a written contract has been altered by parol is a ques-
tion for the jury.^^ 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.^*
III. Existence and Intbkpeetation op Laws, Ordinances, and
Rules.
§ 12. In general.
The existence and proper interpretation of domestic stat-
utes, of whatever nature, is a question of law for the court,
and not of fact for the jury;"* and an instruction which
permits the jury to construe the provisions of a statute is
erroneous.®^ It is also the province of the court to con-
strue the rules and regulations of a city board of trade,®'
or the by-laws and resolutions of a corporation,*^ or the
McCauley (Tex.) 3 S. W. 692; Zenor v. Johnson, 107 Ind. 69;
CociuUlard v. Hovey, 23 Neb. 622;' Curtis v. Martz, 14 Mich. 506;
Cunningham v. Washburn, 119 Mass. 227; Neilson v. Harford, 8
Mees. & W. 822.
81 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. (Mass.) 150; Hutchison v. Bowker,
5 Mees. & W. 535.
94 Gallatin Turnpike Co. v. State, 16 Lea (Tenn.) 36; Carpenter v.
People, 8 Barb. (N. Y.) 610; Town of South Ottawa v. Perkins, 94
U. S. 260; Post v. Supervisors, 105 U. S. 667.
95 Belt V. Marriott, 9 Gill (Md.) 334; Carpenter v. People, 8 Barb.
(N. Y.) 603; Goode v.' State, 16 Tex. App. 411.
»« Wright V. Fonda, 44 Mo. App. 634; Higgins v. McCrea, 116 U..
S. 671.
" Jumper v. Commercial Bank of Columbia, 48 S. C. 430. The
reasonableness and validity of a by-law or regulation of a cor-
poration is a question of law for the court to determine, and It
(25)
B 13 INSTRUCTIONS TO JURIES. [Ch. 2
chartei^s of corporations,^* or the constitution and by-laws
of an association,^* and to determine the existence and terms
of a treaty.* »•
§ 13. Laws of foreign state.
While 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,*"* 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.*"^
is error to submit it to a jury. Neler v. Missouri Pac. Ry. Co.,
12 Mo. App. 26; City of St. Louis v. Weber, 44 Mo. 547.
98 Selma, M. & M. R. Co. v. Anderson, 51 Miss. 829.
»» Johnson v. Miller, 63 Iowa, 529.
100 Roberts v. Lucas, 1 Wash. T. 205; Harris v. Doe, 4 Blackf.
(Ind.) 369.
101 Hall V. Costello, 48 N. H. 179; Pickard v. Bailey, 26 N. H. 152;
Wilson V. Carson, 12 Md. 75; Monroe v. Douglass, 1 Seld. (N. Y.)
447; Dollfus v. Frosch, 1 Denio (N. Y.) 367; Lincoln v. Battelle,
6 Wend. (N. Y.) 475. See, also, Trasher v. Everhart, 3 Gill &
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 enabling the court to determine
whether a written instrument is evidence. In such case, the evi-
dence always goes, in the first Instance, to the court, which, if
the evidence be clear and uncontradicted, may and ought to de-
cide what the foreign law is, and, according to its determination
on that subject, admit or reject the instrument of writing as evi-
dence to the jury. It is offered to the court to determine a ques-
tion of law, — the admissibility or inadmissibility of certain evi-
dence to the jury."
102 Charlotte v. Chouteau, 33 Mo. 194; Wear v. Sanger, 91 Mo.
348; Bank v. Barry, 20 Md. 287; Ingraham v. Hart, 11 Ohio, 255;
Raymond v. Ross, 40 Ohio St. 343; Niagara County Bank v. Baker,
15 Ohio St. 83; Alexander v. Pennsylvania Co., 48 Ohio St. 634;
Lockwood V. Crawford, 18 Conn. 361; State v. Jackson, 13 N. C.
563; Moore v. Gwynn, 27 N. C. 190; Knapp v. Abell, 10 Allen
(Mass.) 485; Ely v. James, 123 Mass. 44.
(26)
Ch. 2] PROVINCE OP COURT AND JURY. § 14
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.-"^ Where the existence of a foreign law has been
established, it is the duty of the court to interpret it, and
instruct the jury as to its meaning and application.^"* The
sister states of the Union are foreign to each other, within
the meaning of the rule under consideration.^"^
§ 14. Municipal ordinances.
A city ordinance is to be proved by evidence addressed
to the court, and not to the jury.^"" It is the duty of the
court, and not of the jury, to construe an ordinance the mean-
ing of which is involved in a pending suit;^"^ 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 contro-
versy, not perfectly clear.*"*
A valid ordinance stands on the same footing as a stat-
ics Hooper v. Moore, 50 N. C. 130 ; Brackett v. Norton, 4 Conn.
517; State v. Whittle, 59 S. C. 297. See, also, Lockwood v. Craw-
ford, 18 Conn. 361.
101 Moore v. Gwynn, 27 N. C. 191; Inge v. Murphy, 10 Ala. 897;
Cobb V. Griffith & Adams S., G. & Transp. Co., 87 Mo. 90; Bank
V. Barry, 20 Md. 296; Charlotte v. Chouteau, 33 Mo. 194. 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 language of documentary
evidence, such as a statute of another state. State v. Whittle, 59 S.
C. 297.
105 See, generally, the cases cited supra, this section.
looRoulo V. Valcour, 58 N. H. 347; Hall v. Costello, 48 N. H.
176, 179. See, also, Chicago, R. I. & P. R. Co. v. Jones, 13 111.
App. 634.
107 Piatt V. Chicago, B. & Q. Ry. Co., 74 Iowa, 127; Washington
South. Ry. Co. v. Lacey, 94 Va. 460; Barnes v. City of Mobile, 19
Ala. 707; City of Peoria v. Calhoun, 29 111. 317.
108 Sadler v. Peoples, 105 Fed. 712.
(27)
§ 15 INSTRUCTIONS TO JURIES. [Ch,. 2
ute. An instruction which leases it to the jury to detei>
mine the application of an ordinance to the circumatances,
and its legal effect, is erroneous.^"®
IV. Oeal Contracts and Language. ' '
§ 15. In general.
The existence and terms of a contract which rests, if it
exists at all, upon verbal communications, is necessarily a
question of fact for the determination of the jury,-'-''' and
it is erroneous to take away this question from them.-'^^
The error is harmless, however, and not ground for reversal,
if the jury would have found the same facts as the court
found.^^* 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
and another part to the judge; but in its entirety the ques-
tion is one of fact."-'-'^ But the court is to construe^ oral
109 Pennsylvania Co. v. Prana, 13 III. App. 91.
110 Sines v. Wayne County Poor Superintendents, 55 Mich. 383;
Barton v. Gray, 57 Mich. 623; Jenness v. Shaw, 35 Mich. 20; Hughes
V. Tanner, 96 Mich. 113; McKenzie v. Sykes, 47 Mich. 294; Walthelm
V. Artz, 70 lo-wa, 609; McGregor v. Penn, 9 Yerg. (Tenn.) 74; Judge
V. Leclaire, 31 Mo. 127; Belt v. Goode, 31 Mo. 128; Farley v. Pettes,
B Mo. App. 262; Chichester t. Whiteleather, 51 111. 259; Smith v.
Hutchinson, 83 Mo. 683; Workingmen's Banking Co. v. Blell, 57 Mo.
App. 413; Copeland v. Hall, 29 Me. 93; Herbert v. Ford, 33 Me. 93;
Houghton V. Houghton, 37 Me. 72; Tohin v. Gregg, 34 Pa. 446;
Festerman v. Parker, 32 N. C. 474; Young v. Jeffreys, 20 N. C. 220;
Massey v. Belisle, 24 N. C. 170; Smalley v. Hendrickson, 29 N. J.
La-w, 373; De Ridder v. McKnight, 13 Johns. (N. Y.) 294; Codding
V. Wood, 112 Pa. 371; Warnick v. Grosholz, 3 Grant, Cas. (Pa.)
235; Folsom v. Plumer, 43 N. H. 469; Carl v. Knott, 16 Iowa, 379.
111 TobijQ V. Gregg, 34 Pa. 446.
112 Beebe v. Koshnic, 55 Mich. 604.
lis McKenzie v. Sykes, 47 Mleh. 294. See, also, Herbert v Ford
(28) • '
Ch. 2] PROVINCE OP COURT AND JURY. § 16
as well as written contracts after a jury has determined
that an oral contract existed, and what were the terms orat
ly agreed upoh.^** The effect of a parol agreement when
its terms are given and their meaning fixed is as much a
question of law as the construction, of a written instru-
ment/^* and it is error to permit the jury to determine the
effect of the agreement.* ^^ 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
is to pass upon.*'^ The construction of oral words depends
largely upon the circumstances under which they were ut-
tered, and hence it may be error to take the question from
the jury.**®
V. PowEE OP JuBT TO Judge the Law in Cbiminai. Cases,
i 16. Introductory statement.
Much misconception has existed as to the respective func-
tions of the court and jury in criminal cases. Even at this
33 Me. 90; Copeland v. Hall, 29 Me. 93; -Murphy v. Bedford, 18 Mo.
App. 279; Fuller v. Bradley, 25 Pa. 120.
114 Barton v. Gray, 57 Mich. 623; Rhodes v. Chesson, 44 N. C. 336;
Diefenback v. Stark, 56 Wis. 462; Short v. Woodward, 13 Gray
(Mass.) 86; Wllmarth v. Knight, 7 Gray (Mass.) 294; Codding v.
Wood, 112 Pa. 371; De Ridder v. McKnight, 13 Johns. (N. Y.) 294;
Smalley v. Hendriokson, 29 N. J. Law, 372; Belt v. Goode, 31 Mo.
128; Judge v. Leclaire, 31 Mo. 127.
116 Young V. Jeffreys, 20 N. C. 220.
116 DieferihaCk V. Stark, 56 Wis. 464.
117 Barton v. 'Gray, 57 Mich. 623.
118 An instruction that the words, "Take this away, and put it
where nobody will see it," even though defendant suspected that
the package contained offensive articles, would not justify him in
disposing c/f it, because 'his instructions were not to throw it away,
was held erroneous ^because the construction to be placed 'On the
words depended upon other conversation at the time, and the nature
and contents of the package, aaad was a question ^r the Jiwy.
People V. Van Dusen, 165 N. Y. 33.
(29)
§ 17 INSTRUCTIONS TO JURIES. [Ch. 2
late date, the claim is not infrequently urged that the jury,
in the trial of criminal cases, are judges of the law in
the sense that they may disregard the instructions, and de-
termine the cause according to their own notion of what
the law is. This misconception arises from a misconstruc-
tion of early English decisions, and the statements of early
English text writers, from the speculative arguments of emi-
nent lawyers both of this country and England, and from
erroneous dicta in our own decisions. It is true that some
of' our own courts have held that the jury have the right
to disregard the instructions, but these decisions have, with-
out exception, been overruled, and the law definitely settled
to the contrary by the courts in which they were rendered.
In ioxir states, namely, Connecticut, Indiana, Illinois, and
Maryland, it is settled that the jury have the legal right to
do this by virtue of statutes and constitutional provisions.
In all other states it is no longer open to question that the
jury are bound by their oath to adopt and follow the in-
structions as the law of the case.
5 17. Arguments for and against exercise of right.
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."® In affirming the right of juries to disregard the
court's instructions. Justice Kent expresses the followino-
views: "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
119 See State v.'Croteau, 23 Vt. 21.
(30)
Ch. 2] PROVINCE OP COURT AND JURY. § 17
enforced by the power of setting aside the verdict; but in
human institutions, the question is not whether every evil
contingency can be avoided, but what arrangement will be
productive 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 consideration all the circumstances of the case,
and the intention with which the act was done, and to de-
termine 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 and jury mutually assist and mutually
check each other, seems to be the safest, and consequently
the wisest, arrangement 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 specu-
lative and refined, and not altogether just in their appli-
cation to every case. Their rules may have too technical
a cast, and become, in their operation, severe and oppres-
sive. To judge accurately of motives and intentions does
not require a master's skill in the science of law. It de-
pends more on a knowledge of the passions, and of the
springs of human action, and may be the lot of ordinary
experience and sagacity."^ ^^ While arguments of this sort
might have been urged with a greater semblance of reason
during the earlier periods in the history of the common law
than at the present date, they were disposed of with scani
courtesy even in Lord Mansfield's time, and by no less a
judge than himself. In the Dean of St. Asaph's Case he
said: "Jealousy of leaving the law to the court, as in othei
cases, is now, in the present state of things, peurile rant ano
declamation. The judges are totally independent of the min
120 People V. CrosweU, 3 Johns. Cas. (N. Y.) 376.
(31]
§ 17
INSTRUCTIONS TO JURIES. [Ch. 2
isters that may happen to he, and of the king; their tempta-
tion is rather to the popularity of the day.""'
This line of reasoning has also been commented on in
one of our own recent decisions, as follows; "When exam-
ined in the light of facts, this argument is withoiat weight.
This is a 'government of the people, hy the people, and
for the people.' In this state, the making of constitutions
and the enacting of laws is vested in the people. However
elected or appointed, our judges are the servants of the peo-
ple, to administer justice according to law and equity, and
it would he sufficient to say that they have never been recre-
ant to the trust imposed upon them. Whenever a rule of law
as administered by the courts becomes obnoxious to the peo-
ple, 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.'"^^
With all due respect to Justice Kent, who was unques-
tionably one of the ablest jurists this country has produced,
it cannot be said that his reasoning carries much conviction
with it. He 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 mumeroias other
reasons against giving the jury this right. These reasons
may be stated as follows : Jurors have no such knowledge
of or training in law as would enable them to determine
questions of law intelligently.'^* It can hardly be supposed
that men drawn each term from other occujpations, who
121 Rex V. Dean of St. isaph, 3 Term R. 428, aaid note.
122 State V. Burpee, 65 Vt. 26.
123 Rex V. Dean of St. Asaph, 3 Term R. 428, and note; State v.
Wright, 53 Me. 339; Pierce v. State, 13 N. H. 570; United States v.
Morris, 1 Curt. 23, Fed. Gas. No. 15,815; Townsend v. State, 2
Blackf. (Tnd.) 158; Duffy v. People, 26 N. Y. 591; Com. v. Anthes,
5 Gray (Mass.) 235.
(32)
Ch. 2] PROVINCE OP COURT AND JUHY. § 17
make no pretensions to legal knowledge, and who are not
responsible, even to impeachment, for their acts, will be more
learned, sound, and safe expositors of the principles of law
than the judges.^ ^* 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 as-
sume the jurisdiction of law; they do not know — are not
presumed to know — anything of the matter; they do not
understand 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."^ ^^
Another reason which might be urged with even greater
force is the uncertainty in the law which would result from
permitting the jury to disregard the instructions.^-" The
interpretation of the law can have no permanency or uni-
formity, nor can it become generally known, except through
the action of the courts.^^^ "The decisions of one jury fur-
nish no rule for the action of another."*^* If the jury are
judgfes of the law, there is no method of determining with
certainty what they have held it to be.*^* "This can never
be known, therefore 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
12* Pierce v. State, 13 N. H. 570.
12B Rex T. Dean of St. Asaph, 3 Term R. 428, and note.
128 Re? V. Dean of St. Asaph, 3 Term R. 428, and note; Com. v.
Anthes, 5 Gray (Mass.) 185; Pierce v. State, 13 N. H. 570; Parrish
V. State, 14 Neb. 63; Hamilton v. People, 29 Mich. 173; Harris v.
State, 7 Lea (Tenn.) 538; United States v. Greathouse, 4 Sawy. 457,
Fed. Cas. No. 15,254; State v. Wright, 53 Me. 339; United States v.
Battiste, 2 Sumn. 240, Fed. Cas. No. 14,545; Pennsylvania v. Bell,
Addison (Pa.) 156.
12' Hamilton v. People, 29 Mich. 173.
128 Pierce v. State, 13 N. H. 570.
128 Parrish v. State, 14 Neb. 63.
(33)
8 — Ins. to Juries.
§ 17 INSTRUCTIONS TO JURIifiS. [Ch. 2
most intelligent 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 ^-ule having such results can possibly be sound,
either in theory or practice, but can only be evil, and that
continually."^*" So it has been said that the old common-
law form of oath would seem to indicate that the jury were
not judges of the law. By it they are sworn "a true verdict
to give according to the evidence." This must mean that
they are to decide the facts according to the evidence. If
they may decide the law, they may act as to that without
the obligation of an oath. The law is not given in evi-
dence.'*^ Another reason is that, in case of conviction, the
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 i? final in case of an acquittal.'^^ Suppose, how-
ever, that the jury, under excitement or popular prejudice,
wrongfully convict the defendant. It has been weU said
ISO Harris v. State, 7 Lea (Tenn.) 553.
131 State v. Burpee, 65 Vt. 24.
132 Rex V. Dean of St. Asaph, 3 Term R. 428, and note; State v.
Drawdy, 14 Ricli. (S. C.) 90; State v. Jeandell, 5 Har. (Del.) 475-
Stettinius v. United States, 5 Cranch, C. C. 573, Fed. Cas. No 13 '-
387. • • . ,-
(34)
Ch. 2] PROVINCE OP COURT AND JURY. § 17
that, if the jury are to decide all the law, their decisions
can never be reversed, since there are no means of ascertain-
ing their decision upon a question of law so as to bring it
into review before an appellate court.**^ 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 federal constitution, and. a number of the state courts
have also held that it is a violation of the state constitutional
provisions.^^* 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 ver-
dict, and that it is not possible for the jury to have a right
to do what the court is bound to undo.^'® In conclusion, it
may be stated that such a rule would be contrary to a vast
preponderance of judicial authority, both in this oovintry and
in England.***
133 Stettlnius v. United States, 5 Cranch, C. C. 573, Fed. Cas. No.
13,387; Freeman, J., in Harris v. State, 7 Lea (Tenn.) 556.
IS* United States v. Morris, 1 Curt. 23, Fed. Cas. No. 15,815; Com.
V. Anthes, 5 Gray (Mass.) 236; State, v. Wright, 53 Me. 329; State
V. Burpee, % Vt. 30. In this case it was said: "The doctrine that
jurors are judges of the law In criminal cases is repugnant to
articles 4 and 10 of chapter 1 of the constitution of Vermont, which
guaranty to every person within this state 'a certain remedy' for
all wrongs, conformably to the laws, and that he shall not be 'de-
prived of his liberty except by the laws of the land.' " So, in Com.
V. Anthes, 5 Gray (Mass.) 236, it was said: "The judiciary de-
partment was intended to be permanent and coextensive with the
other departments of government, and, as far as practicable, inde-
pendent of them; and therefore it is not competent for the legis-
lature to take the power of deciding the law from this judiciary
department, and vest it in other bodies of men, — juries. — occasion-
ally and temporarily called to attend courts, for the performance
of very important duties * * * very different from those of
judges, and requiring different qualifications."
issTownsend v. State, 2 Blackf. (Ind.) 151.
180 state V. Wright, 53 Me. 329.
(S6)
g 18 INSTRUCTIONS TO JURIES. [Ch. 2
§ 18. Rule in England fieduoible from decisions and text books.
Notwithstanding the fact that some of the English deci-
sions, especially in cases of criminal libel, have been cited
to support the theory that the jury are judges of the law
in the sense that they may disregard the instructions of the
court, and determine the law to be contrary to what is therein
stated, it is believed that there^is not a single English deci-
sion in which it is so held, though there may possibly be
dicta in a few decisions which would seem to support the
theory. The writer has made what he believes to be an
absolutely exhaustive collection of the English cases, and it
is submitted that a close examination of these cases will
show beyond any possible doubt that the English courts have
never held that the jury possess the right to disregard the
instructions, but, on the contrary, have uniformly laid down
the doctrine that the jury are bound to adopt the instruc-
tions of the court as containing a true exposition of the
law governing the case, and that they act in violation of
their oath if they fail to do so.^*'^ So far from having the
right to disregard the instructions, there are at least two
authentic instances where the jury were imprisoned and fined
enormous sums for acquitting the defendant in disregard of
137 Rex V. Dean of St. Asaph, 3 Term R. 428, and note; Rex v. Nutt,
1 Barnard. 306; Rex v. Oneby, 2 Ld. Raym. 1493, 2 Strange, 766;
Tutchin's Case, 14 How. State Tr. 1095; Rex v. Wilkes, 4 Barrows,
2527; Rex v. Woodfall, 5 Burrows, 2661; Owen's Case, 18 How. State
Tr. 1203; Rex v. Poole, Hardw. 23; Fuller's Case, 14 How. State Tr.
517; Bushell's Case, Vaughan, 135; Hood's Case, J. Kelyng, 50;
Lilburne's Case, 4 Cobbett, State Tr. 1269; Wharton's Case, Yel. 24;
Rex V. Clerk, 1 Barnard. 304; Sidney's Case, 9 Cobbett, State Tr.
818; Throckmorton's Case, 1 State Tr. 901; Miller's Case, 20 How.
State Tr. 870; King v. Withers, 3 Term R. 428; Stockdale's Case,
cited in dissenting opinion of Lewis, C. J., In People v. CroBwell, 3
Johns. Cas. (N. Y.) 408.
(36)
Ch. 2] PROVINCE OF COURT AND JURY. § 18
the instructions,^^* And the question of the jury's right
in this regard having been raised in a case reviewed before
Lord Mansfield, he denied its existence in the most em-
phatic terms, and declared that he was glad that he was
not bound "to subscribe to such an absurdity."^^* On the
trial of Colonel Lilburn for treason in 1649, the court re-
fused to permit him to read to the jury from a law book.
Being angry at this, h© exclaimed: "You that call your-
selves 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, to pronounce their verdict." Thereupon, Jer-
min, J., said: "Was there ever such a damnable blasphe-
mous heresy as this, to call the judges of the law cyphers ?"
He then charged the jury that they were not judges of the
law, and that they "ought to take notice of it, that the judges
that are sworn, that are twelve in number, they have ever
been the judges of the law from the first time that ever
we can read or hear that the law was truly expressed in
England; and the jury are only judges * * * of mat-
ters of fact."^*° In Eex v. Poole ^^^ Lord Hardwicke de-
nied the right of the jury to disregard the instructions, and
said: "The thing that governs greatly in this determina-
tion is that the point of law is not to be determined by
juries. Juries have a power by law to determine matters
of fact only ; and it is of the greatest consequence to the law
of England and to the subject that these powers of the judge
and jury are kept distinct; that the judge determine the
law, and the jury the fact; and, if ever they come to be
confounded, it will prove the confusion and destruction of
138 See Wharton's Case, Tel. 24; Throckmorton's Case, 1 State
Tr. 901.
139 Rex T. Dean of St. Asaph, 3 Term E. 428, and nota.
140 Lilburne's Case, 4 Cobbett. State Tr. 1373.
"1 Hardw. 28.
(87)
§ 18
INSTRUCTIONS TO JURIES. [Ch. 2
the law of England." All the other English cases cited,
though they may not have denied the right of the jury to
judge the law in such emphatic terms, nevertheless hold that
the jury have no such right.
The next question for consideration is, do the statements
of text writers and commentators tend to show that the jury
possess such a right ? Tt is believed that this question must
be answered in the negative. De Lolme, in his work on the
constitution of England, says: "As the main object of the
institution of the trial by jury is to guard the accused per^
sons against all decisions whatsoever by men invested with
any permanent official authority, it is not only a settled
principle that the opinion which the judge delivers has no
weight but such as the jury choose to give it, but their ver-
dict must, besides, comprehend the whoh? matter in trial, and
decide as well upon the fact as upon the point of law that
may arise out of it; in other words, they must pronounce
both on the commission of a certain fact, and on the reason
which makes such fact to be contrary to law."^*^ This state-
ment is very explicit to the effect that the jury are not
bound by the instructions, but is not entitled to much weight,
as the author cites no authority in support of his position.
The decisions of courts of justice furnish the most certain
and authoritative evidence of what the rules of common law
are."^ One of our courts has very properly said, in criti-
cism of De Lolme's statement, that this work, strictly speak-
ing, was only an essay. Its author "must be regarded simply
as a learned foreigner, and sometimes showing that want
of thoroughness and precision which even a learned man
may display when writing on subjects which his previous
142 De L»lme's Const. Eng. p. 175. Also in State v. Croteau 23
Vt. 22.
1*3 Bl. Comm. 69-73; 1 Kent, Comm. 473.
(38)
Ch. 2] PROVINCE OP COURT AND JURY. | ig
education had not particularly fitted him to appreciate, and
especially when discussing such a subject as the common
law of England."*** The statute of Westminster II. c. 30
(13 Edw. I. [A.- D. 1285]), often cited as the groundwork
of this alleged right, provides "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 ver-
dict shall be admitted at their own peril." The contention
has been often made from the words of this statute that the
right of the jury to decide the law upon the general issue
was vested in them by the English constitution. "This
phraseology is most singular, if the statute was intended to
submit the law to them. The reasonable construction of it
is that, if the jury will undertake to decide the law, they
shall be subject to such penalty as may be imposed upon
them for exceeding their jurisdiction. * * * ITothing
is better settled than that a penalty attached to the perform-
ance of an act makes the act itself unlawful."**® Glanville
(liber 13, cc. 20, 21) says that the assize could not deter-
mine upon the law connected with disseisin. He states that,
if the demandant object to put himself upon the grand as-
size, he must show some cause why the assize shall not pro-
ceed. If the' objection be admitted, the assize shall thereby
cease, so that the matter shall be verbally pleaded and de-
termined 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 de-
termined by the jury, who were to find only collateral facts
out of the points of assize. The citation of Glanville is a
"♦ Pierce v. State, 13 N. H. 546.
we Pierce T. State, 13 N. H. 536, 544; State T. Burpee, 65 Vt 12, 13.
(39)
§ 18 INSTRUCTIONS TO JURIES. [Ch. 2
strong authority against the right of the jury to decide the
law upon the general issue involving law and the facts.^**
Littleton, whose treatise was 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.-'*^ Gilchrist,
J., of the New Hampshire 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 explaining the pleadings in real
actions relative to estates upon condition. His remarks are,
in brief, that, after an estate tail is determined for default
of issue, the donor may enter by force of the condition.
But in the pleadings he must vouch a record, 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 disseisin, for as well as the jurors may have
connusance of the lease, they also as well may have con-
nusance 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 en-
try 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 gen-
eral verdict relative to estates upon condition."^** Lord
Coke, who wrote nearly two centuries later, says : "Although
the jury, if they will take upon them (as Littleton here
"6 Pierce v. State, 13 N. H. 536; State v. Burpee, 65 Vt. 12, 13.
147 Littleton, Tenures, § 368.
"8 Pierce v. State, 13 N. H. 546, 547.
(40)
Ch. 2] PROVINCE OF COURT AND JURY. § Ig
saith) the knowledge of the law, may give a general ver-
dict, yet it is dangerous for them so to do, for, if they do
mistake the law, they run into the danger of an attaint."^*®
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.^ ^^ 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 fact3 stated, itl
be murder, manslaughter, or no crime at all. This is wherei
they doubt the matter of law, and therefore choose to leave'
it to the determination of the court, though they have am
unquestionable right of determining upon all the circum-
stances, and ;finding a general 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 ver-
dict set aside by attaint at the suit of the king, but not at
the suit of the prisoner.""^
Although the statute mentioned, and the statements of the
commentators herein set forth, 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, it
is not believed this is the case. On the contrary, they seem
to show that the jury might be punished for disobeying the
instructions.
"» Co. Litt. 228a,
ISO Pierce v. State, 13 N. H. 542.
isi 4 Bl. Comm. 361.
(41)
§.19 INSTRtJCTIONS TO JURIES. [Ch. 2
§ 19. Enle at common law in America.
In America, except in jurisdictions where special organic
and statutory provisions have been construed as vesting the
jury with the right to disregard the instructions/^^ it is
well settled that the jury are bound to adopt the instruc-
tions as the law of the case, and apply them to the facts,
and that they will be guilty of a willful breach of their
oaths and a violation of their duty if they disregard the in-
structions and assume to determine the law to be contrary
to what the instructions state it to be. While it is true that
there are a few American decisions in which it has either
been held or said that the jury are not bound to follow the
instructions of the court, these decisions have been over-
ruled, either expressly or impliedly, by subsequent decisions
in the same jurisdictions,^®* and there is no longer any
doubt existing as to the jury's duty in the premises.^'*
i»2 See post, sections 21, 22, of tMs article.
IBS state V. Snow, 18 Me. 348, overruled In State t. Wright, 53
Me. 343; People v. Croswell, 3 Johns. Gas. (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 (all other Pennsyl-
vania decisions take the opposite view) ; Com. v. Knapp, 10 Pick.
(Mass.) 477 (overruled in Com. v. Anthes, 5 Gray [Mass.] 185);
Butler V. State, 7 Baxt. (Tenn.) 36 (all other Tennessee cases take
the opposite view); State v. Croteau, 23 Vt. 14; State v. Wilkinson,
2 Vt. 480; State v. Meyer, 58 Vt. 463; State v. Freeman, 63 Vt. 496
(the Vermont cases are expressly overruled by the late case of
State V. Burpee, 65 Vt. 1, in a well-considered opinion, reviewing all
the authorities); Doss v. Com., 1 Grat. (Va.) 557 (overruled in
Brown v. Com., 86 Va. 466) ; United States v. Wilson, «aldw. 78,
Fed. Cas. No. 16,730 (all other federal cases maintain the contrary
doctrine).
104 Mobile & 0. R. Co. v. Wilson (C. C. A.) 76 Fed. 129; United
States V. Keller, 19 Fed. 636; United States v. Morris, 1 Curt. 23,
Fed. Cas. No. 15,815; United States v. Shive, Baldw. 510, Fed. Cas.
(42)
(Jb. 2J PROXINCB OP COURT AND JURY. | 19
When the jury find a general verdict, "it is their duty to
be gorerned by the instructions of the court as to all legal
questions involved in such verdicts. They have the power
to do otherwise, but the exercise of such power cannot be
regarded as rightful, although the law has provided no means,
in criminal cases, of reviewing their decisions, whether of
law or fact, av of ascertaining the grounds upon which their
verdicts are based."**° "But this humane provision in favor
of the accused * * * -was never designed to abridge
the peculiar province of the court in the instructions to the
jury on questions of law. Its object was wholly different.
The judges of courts are selected with a view to their knowl-
No. 16,278; Stettinius v. United States, 5 Cranch, C. C. 573, Fed.
Gas. No. 13,387; United States v. Greathouse, 4 Sawy. 457, Fed. Gas.
No. 15,254; State t. Burpee, 65 Vt. 1; Duffy v. People, 26 N. Y.
591; Carpenter v. People, 8 Barb. (N. Y.) 603; Saflord v. People.
1 Parker, Cr. Gas. (N. Y.) 474; Com. t. McManus, 143 Pa. 64; Com.
V. Goldberg, 4 Pa. Super. Gt. 142; Pennsylvania v. Bells, Addison
(Pa.) 159; Harrison v. Com., 123 Pa. 508; State v. Jeandell, 5 Har.
(Del.) 475; Batre v. State, 18 Ala. 119; State v. Jones, 5 Ala. 666;
Washington v. State, 63 Ala. 135; State v. Rheams, 34 Minn. 18;
Hamilton v. People, 29 Mich. 174; People v. Waldvogel, 49 Mich.
337; People v. Mortimer, 48 Mich. 37; Williams v. State, 32 Miss.
390; State v. Wright, 53 Me. 328; State v. Stevens, 53 Me. 548;
Lewton v. Hower, 35 Fla. 58; Montee v. Com., 3 J. J. Marsh. (Ky.)
132; Com. v. Garth, 3 Leigh (Va.) 761; Brown v. Com., 86 Va. 466;
Dejamette v. Com., 75 Va. 867; Johnson y. State, 5 Tex. App. 423;
Nels v. State, 2 Tex. 280; People v. Anderson, 44 Gal. 70; People
V. Ivey, 49 Gal. 56; Sweeney v. State, 35 Ark. 586; Pleasant v.
■ State, 13 Ark. 539; Winkler v. State, 32 Ark. 360; Edwards v. State,
22 Ark. 253; Pierce v. State, 13 N. H. 536; Lord v. State, 16 N. H.
325; Hardy v. State, 7 Mo. 303; Massey t. Tingle, 29 Mo. 437;
Hannum v. State, 90 Tenn. 647; Harris v. State, 7 Lea (Tenn.)
554; McGowan v. State, 9 Yerg. (Tenn.) 195; Parrish v. State, 14
Neb. 60; State v. Drawdy, 14 Rich. (S. C.) 90; State v. Jones, 29
S. C. 201; Robbins v. State, 8 Ohio St. 167; Adams v. State, 29
Ohio St. 412; Montgomery v. State, 11 Ohio, 424; State v. Miller,
53 Iowa, 154; State v. Dickey (W. Va.) 37 S. B. 695.
MB Duffy v. People, 26 N. Y. 593.
(43)
§ 19 INSTRUCTIONS TO JURIES. [Ch. 2
edge 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 obligations of the
juror's oath; and in the proper and conscientious discharge
of their duty, a jury cannot, or, in other words, has no right
to, determine that the court has erred in its instructions as
to the law, and therefore to disregard the law as laid down
to them by the court."^®' "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. Tbe
power is the same in a civil case, and yet it has never been
supposed that the power of the jury, in a civil case, to ren-
der 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 de-
ciding 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 defend-
ant, on the ground that it was a verdict .against law.
* * * The most that can be said is that the jury has
the power of rendering a general 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."i" That eminent jurist, Chief Justice Shaw, of Mas-
sachusetts, 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 de-
cide questions of law is placed in a body well qualified,
by a suitable course of training, to decide all questions of
1B8 Robblns V. State, 8 Ohio St. 167.
"T Stettlnius v. United States. 5 Cranch, C. C. 593, Fed. Cas Na
13,387.
(44)
Ch. 2] PROVINCE OF COURT AND JURY. § 20
law ; and another body, well qualified for the duty, is charged
with deciding all questions of fact, definitely; and whilst
each, within its own sphere, performs the duty intrusted to
it, such a trial affords the best possible security for a safe
administration of justice and the security of public and pri-
vate rights.
, "158
i 20. Same — What instructions proper as to following charge
of court.
In accordance with those views, it is proper to instruct
the jury that they are bound to follow the instructions of the
court,* ^' and the following is a very good form of instruc-
tion on the subject: "It is the duty of the jury to receive
the law as it is given to them by the court. It is the ex-
clusive province of the court to determine what the law is,
and the jury have no right to hold the law to be otherwise
in any particular than as given to them by the court."**" It
has been held 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 complain
of the error, because it is in his favor.*®* 'No authority was
cited in support of this holding, and in neither case was there
any attempt made to state the reasons therefor. On prin-
ciple, 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 prisoner.
168 Com. V. Anthes, 5 Gray (Mass.) 198.
"oRobbins v. State, 8 Ohio St. 167; Harris v. State, 7 Lea (Tenn.)
553; Dale v. State, 10 Yerg. (Tenn.) 555; State v. Miller, 53 Iowa,
156; Mobile & O. R. Co. v. Wilson (C. C. A.) 76 Fed. 127.
160 Robbins v. State, 8 Ohio St. 167.
161 Hannum v. State, 90 Tenn. 647; Harrii t. State, 7 Lea (Tenn.)
556.
(45)
§ 21 INSTRUCTIONS TO JURIES. [Ch. 2
5 ?1. Summary of organic and statutory provisions regulating
practice.
In sevem states an attempt has been made to reguilate the
practice by constitutional or statutory provisions, which are
as follows: Connecticut: "The court shall state its opin-
ion to the jury upon all questions of law arising in the trial
of a criminal cause, and submit to their consideration both
the law and the facts, without any direction how to find
their verdict."^^^ Georgia: "The jury in all criminal cases
shall be the judges of the law and the facts."^** Illinois:
"Juries in all criminal cases shall be judges of the law and
the facts."^** Indiana: "In all criminal eases whatever,
the jury shall have the right to determine the law and the
facts."'*^ "In charging the jury, he [the judge] must state
to them all matters of law which are necessary for their
information in giving their verdict. If he present the facts
of the case, he must inform the jury that they are the exclu-
sive judges of all questions of fact, and that they have a
right also to determine the law."^®^ Louisiana: "The jury
in all criminal 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."^*'^ "The jury is always at liberty to give a gen-
eral verdict by pronouncing on the law and on the facts, in
the ease submitted to them. Therefore, the law permitting
either party to submit specially the facts in the case to the
jury, and so depriving them of the right of giving a general
162 Gen. St. Conn. 1888, § 1630.
163 Const, art. 1, § 2, par. l;Pen. Code, § 1033.
164 Starr & C. Ann. St. (1896) p. 1403, par. 616.
160 Const. Ind. art. 1, § 64.
166 Rev. St. 1881, § 1823, subd. 5.
167 Const art. 179.
(46)
Ch. 2] PROVINCE OF gOURT AND JURY. § 22
verdict in the suit, is abrogated."^'* Maryland: "In the
trial of all criminal cases, the jury shall be the judges of
law, as well as of fact."^^® Massachusetts: "In aU 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 committed to them, and, after having
received the instructions of the court, to decide at their dis-
cretion, by a general verdict, both the facts and the law in-
volved in the issue, or to find a special verdict, at their elec-
tion ; but it shall be the duty of the court to superintend the
course of the trials, to decide upon the admission and re-
jection of evidence, and upon all questions of law raised
during the trials, and upon all collateral and incidental pro-
ceedings, and also to charge the jury and to allow bills of
exception."^ ^'^
§ 22. Provisions held to vest jury with right to disregard in-
structions.
In construing these provisions, the courts of three states
have held, without any hesitation, that the jury have the
right in criminal cases to disregard the instructions, and de-
termine the law to be contrary to what is stated in the in-
structions. This, it may be stated, is the well-settled law of
these states, supported by an unbroken line of decisions to
that effect.'' ^^ In one of these decisions it is said that the
constitutional provision making juries judges of the law-
as well as the facts "is merely declaratory, and has not
168 Garland's Rev. Code Prac. 1901, § 520.
169 Const, art. 15, § 5.
170 Rev. Laws 1902, 0. 219,, § 13.
1" Illinois; Spies v. People, 122 111. 1; Wohlford v. People, 148
111. 296; Davison v. People, 90 111. 223; Mullinix v. People, 76 lU.
211; Schnier v. People, 23 111. 25.
Indiana; Williams v. State, 10 Ind. 503; McDonald v. State, 63
Ind. 544; Clem v. State, 42 Ind. 420; McCarthy v. State, 56 Ind. 203;
(47)
i; 22 INSTRUCTIONS TO JURIES. [Ch. 2'
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 has no right to disregard the court's instructions.'^"
In another state, where there is special legislation on the sub-
ject, it is also probable that the jury may disregard the in-
structions of the court.'''* Even in these states, the lim-
itations of the jury's rights and powers are not defined with
absolute certainty. It is definitely settled, however, that
the instructions of the court as to the law of the case are
merely advisory, and without binding force on the jury, and
that the jury are free to reject them, and determine what
the law is for themselves,' ''* and that, in giving instructions,
the court does not intend to bind their consciences, but mere-
ly "to enlighten their judgments.'" ''* Nevertheless, it is
held in one of these states that it is unquestionably the duty
of the jury to give careful and respectful consideration to
the instructions of the court,'^® especially if they are in
doubt as to what the law of the case may be,'''^ and that they
Walker v. State, 136 Ind. 663; Fowler v. State, 85 Ind. 538; Bird
v. State, 107 Ind. 154.
Maryland: Forwood v. State, 49 Md. 531; Franklin v. State, 12 Md.
236; Wheeler v. State, 42 Md. 563; Beard v. State, 71 Md. 275.
"2 Franklin v. State, 12 Md. 236. See, also, ante, §§ 18, 19.
173 See State v. Buckley, 40 Conn. 247. See, also, State v. Thomas,
47 Conn. 546. But see State v. McKee, 73 Conn. 18, 49 L. R. A. 542,
wherein it was held that the jury in a criminal case are not the
judges of the constitutionality of the statute upon which the com-
plaint is base 1.
174 McDonald v. State, 63 Ind. 544; Williams v. State, 10 Ind. 503;
Bird V. State, 107 Ind. 154; Keiser v. State, 83 Ind. 236; Nuzum
V. State, 88 Ind. 599; Powers v. State, 87 Ind. 144; Beard v. State,
71 Md. 275; Wheeler v. State, 42 Md. 563; Spies v. People, 122 111. 1.
i7isBissot V. State, 53 Ind. 408; Hudelson v. State, 94 Ind. 429;
Beard v. State, 71 Md. 275.
176 McDonald v. State, 63 Ind. 544; Keiser v. State, 83 Ind. 236.
177 Bird V. State, 107 Ind. 154.
(48)
Ch. 2J PROVINCE OF COURT AND JURY. § 22
ehould not disregard the instructions without proper rea-
son.''^* In another state it is said that the jury should not
disregard the instructions unless they are prepared to state
on their oaths that they are better judges of the law than
the court.-"* 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.^*" They may also de-
termine whether the facts stated in an indictment constitute
a public offense, but have no right to determine the suffi-
ciency in form of the indictment, or that it was 'not properly
found and returned.^^^ So, in one state it is held that a
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 arguing
that question before the jury.**^ In another, the right of
the jury to declare a statute unconstitutional seems to be
recognized.^ ^J And in another, the decisions, though very
difficult to understand, also seem to maintain this right.
In the first of these cases, 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
I's Blaker v. State, 130 Ind. 203.
118 Davison v. People, 90 111. 231, 223; Mullinix v. People, 76 111.
211; Spies v. People, 122 111. 1.
no Fowler v. State, 85 Ind. 538; Kelser v. State, 83 Ind. 236. In
this case it was said: "The decisions of the supreme court are no
more hinding upon juries in such cases than the charge of the judge
trying the cause. Both may well aid the jury in determining the
law applicable to the case, but neither source of information is
legally binding upon them, if they choose to determine the law for
themselves."
itiHudelson v. State, 94 Ind. 426; Daily v. State, 10 Ind. 536.
182 Franklin v. State, 12 Md. 236.
183 Lynch v. State, 9 Ind. 541.
(49)
4 — Ins. to Juries.
§ 22 INSTRUCTIONS TO JURIES. [Oh. 2
to the judge on the bench. They are not authorized to say
that that is not law which is the law of the state. The su-
preme court has decided that section 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 de-
cided by the same supreme court ; you would not suffer your
private views" and interests to influence you to disregard the
law thus decided. ***]]£ you decide that to be un-
constitutional which the supreme court holds to be consti-
tutional, 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 unconstitutional, 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 courl; 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 con-
sidered that the jury had the right to declare a statute un-
stitutional.^** 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 con-
sidered it, but that they were as much bound by the law as
the judge on the bench, and that it was not to be presumed
that they would be guilty of such an absurdity as to de-
clare a statute unconstitutional which the court had declared
constitutional. Counsel contended that the supreme court
184 state V. Buckley, 40 Conn. 247.
(50)
Ch. 2] PROVINCE OF COURT AND JURY. § 23
had never held the statute constitutional, and that the court
misled the jury and prevented them from freely exercising
their right to judge for themselves of the validity of the
statute. "Hie 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.^** If the jury are judges of the law in the broad
sense that they may decide the law to be directly contrary
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 constitutionality 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 the writer to be guilty of an inconsistency.
5 23. Same — Propriety or necessity of instructing jury on law
of the case.
Statutes or constitutional ptovisions making the jury
judges of the law as well as of the fact in criminal cases do
not prevent the giving of advisory instructions, for, though
the jury are the judges of the law, they are unlearned, and
the court has the ultimate power of setting aside their verdict
if they should misapply the law, to the injury of the ac-
cused.^** The practice of instructing the jury, notwith-
standing the fact that they may disregard the instructions,
"is founded on the soundest practical 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 be-
isB state V. Thomas, 47 Conn. 546.
186 Beard v. State, 71 Md. 275; Forwood v. State, 49 Md. 531;
Wheeler v. State, 42 Md. 563.
(51)
§ 23 INSTRUCTIONS TO JURIES. [Ch. 2
comes their duty to decide the case according to the estab-
lished 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."^*'^ There is, however, some conflict of opin-
ion as to whether the court is obliged to instruct the jury
when requested. In one jurisdiction it seems to be well
settled that the court need not give any instructions, whether
requested by counsel or jury.-*** In one case it was said :
"It is impossible that the legislature contemplated giving
the right to parties in criminal cases to have instructions
upon the law and the legal effect of the evidence, and excep-
tions to such rulings, in the face of the constitutional provi-
sion under which juries are at liberty to treat such instruc-
tions with utter disregard, and to find their verdict in di-
rect opposition to them."-'*® And in another it was said:
"Both before and since the constitutional declaration upon
the subject, it was and has' been the practice 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 advisory instructions when requested so to do. It
seems to have been regarded as entirely a matter of discre-
tion with the judge, there being no positive duty requiring
him to pursue the one course or the other."^'" In another
jurisdiction it is held to be the duty of the judge to instruct
the jury as to the law, notwithstanding the provision mak-
ing them judges of the law. "To the end that the jury may
be correctly informed as to the law applicable to his case,
187 Beard v. State, 71 Md. 275.
188 Broil V. State, 45 Md. 356; Swann v. State, 64 Md. 423; Frank-
lin V. State. 12 Md. 246.
188 Broil V. State, 45 Md. 360.
190 Beard t. State, 71 Md. 275.
(52)
Gh. 2] PROVINCE OP COURT AND JURY. § 24
and that he may not be erroneously convicted, a defendant
on trial, charged with crime, has the right to insist that the
court shall instruct the jury on all legal questions necessary
to enable them to reach a true verdict."^^^ In another juris-
diction, where juries are by statute made judges of the law,
it is customary to give the jury instructions on the law of
the case.-*®^ There seems to be no case, however, in which
the necessity of giving instructions, with or without request,
has been directly decided.
ISTotwithstanding the fact that the jury are not bound to
follow the instructions of the court, the defendant is entitled
to correct instructions, if any are given, and is entitled to
except to erroneous instructions.-'*' If the jury have mani-
festly followed an erroneous instruction, to the injury of
the defendant, the judgment should be reversed.^®*
§ 24. Same — Necessity and manner of instructing jury that
they are judges of the law.
In one jurisdiction, 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,^®° but it is the duty of the court, under stat-
utory provisions, to do so,^®* and a refusal of an instruction
to this effect,-'®^ or the giving of an instruction that the
jurors must be governed by the instructions, constitutes re-
versible error.^** In other jurisdictions, where juries are
i»i Parker v. State, 136 Ind. 284.
192 See Spies v. People, 122 III. 252; MuUinlx v. People, 76 111.
211; Schnier v. People, 23 111. 17.
193 Beard v. State, 71 Md. 275.
i9*Swann v. State, 64 Md. 423; Clem v. State, 42 Ind. 420; Hudel-
son V. State, 94 Ind. 429.
19B Fowler v. State, 85 Ind. 538; Walker v. State, 136 Ind. 666;.
Powers V. State, 87 Ind. 144.
198 Hudelson v. State, 94 Ind. 429.
197 McCarthy v. State, 56 Ind. 203.
198 McDonald t. State, 63 Ind. 644.
(53)
1^ 24 INSTRUCTIONS TO JURIES. [Ch. 2
judges of the law as well as of the facts, it is customary to
instruct them that they are not bound by the court's instruc-
tions;^" and it would undoubtedly be better practice, and
perhaps the duty of the court, to so instruct the jury, whether
there is any statutory requirement to that effect or not, and
though no requests for such instructions were made. On
this head, the following instructions have been approved:
"That the instructions by the court are advisory merely, and
that, if they [the jury] differed with the court as to the law,
they may follow their own convictions, and disregard the in-
structions of the court ;"*""' that "you are the judges of the law
as well as the facts. Upon the facts of the case * * * it
is your exclusive province to decide upwi them ; ours is to in-
struct you in regard to the law; and while I shall endeavor
to give you a plain, clear, and impartial statement of the
law, * * * you are to also remember that it is not
intended thereby to thus bind your consciences, but to en-
lighten your judgments, if so be you should so regard it."*"*
In connection with these instructions, it is customary in one
jurisdiction to caution the jury not to disregard the in-
structions without good reason;*"^ and, in another, that the
jury should not disregard the instructions unless they can
say on oath that they are better judges of the law than the
court^'** In the first-mentioned jurisdiction, the following
instructions have been approved: "If, however, you have
i»« See Mullinlx v. People, 76 111. 211; Davison v. People, 90 111.
221; Spies t. People, 122 111. 1; Wheeler v. State, 42 Md. 563; Swann
V. State, 64 Md. 423.
too Bird v. State, 107 Ind. 154.
soiBissot T. State, 53 Ind. 408.
sosBlaker t. State, 130 Ind. 203; Bird v. State, 107 Ind. 154;
Kelser v. State, 83 Ind. 236.
sosMuUinix v. People, 76 111. 211; Pisher v. People, 23 111. 283;
Davison t. People, 90 111. 221; Spies v. People, 122 111. 1.
(54)
Ch. 2] PROVINCE OP COURT AND JURY. § 25
no well-defined opinion or convictions as to what the law is
relating to any particular matter or matters at issue in the
case, then, in determining what it is, you should give the in-
etructions of the court respectful consideration."*"* "ITot-
withstanding you have the legal right to disagree with the
court as to what the law is, still you should weigh the in-
structions given you in the case as you weigh the evidence,
and disregard neither without proper reason."***" So, in the
last-mentioned jurisdiction, the following instructions have
been approved: "It is the duty of the jury to accept and
act upon the law as laid down to you by the court, unless
you can say upon your oaths that you are better judges of the
law than the court ; and if you can say upon your oaths that
you are better judges of the law than the court, then you
are at liberty so to act."*"' " 'If they [the jury] can say
upon their oaths that they know the law better than the court
itself, they have the right to do so;' * * * but that,
'before saying this, * * * it is their duty to reflect
whether, from their study and experience, they are better
qualified to judge of the law than the court' "*"''
( 25. Provisions held not to vest jury with right to disregard
instructions.
In three jurisdictions, where there are special statutory or
organic provisions on the subject, it is now definitely settled
that the jury are bound to follow the instructions of the
court, but in two of them this conclusion was not reached
without considerable hesitation. It is interesting to note
that in one of these two jurisdictions the provisions govern-
ing the subject are the same in substance as those of the
2o< Bird T. State, 107 Ind. 154.
SOB Blaker v. State, 130 Ind. 203.
2o« Davison v. People, 90 111. 231.
«07 Spies V. People, 122 111. 1.
'(55)
I 26 INSTRUCTIONS TO JURIES. [Ch. 2
three jurisdictions where the jury are allowed full liberty
to disregard the instructions, and determine the law for
themselves.
§ 26. Same — Rule in Georgia.
In construing the statutory provision, all the earlier de-
cisions in Georgia affirm, in the most unmistakable terms,
the right of the jury to disregard the instructions, and de-
termine the law for themselves.^" ^ In one case it was said
that, if it was the misfortune of the jury "to differ conscien-
tiously from the court, it is not only their right, but their
duty, to find a verdict according to the opinion which they
entertain of the law. And instead of being guilty of per-
jury in doing so, they are guilty of perjury if they do not,
for, in this case, their finding is not their verdict."^*" So,
in another case it was held objectionable to tell the jury that
they should not differ from the court on slight and trivial
grounds, but should be "clearly satisfied" that it was wrong
before they did so.^'** From a reference to the last section,
it will be seen that the rights of the jury in this regard were
guarded even more jealously than they now are in two juris-
dictions where the courts hold that the jury have the right
to disregard the instructions. In those jurisdictions, in-
structions similar to the one under consideration are consid-
ered not only proper, but highly commendable. It seems
that the last decision upholding the right of the jury to dis-
regard the court's instructions were handed down in 1862.*^*
"sMoDanlel v. State, 80 Ga. 853; Keener y. State, 18 Ga. 194;
Dickens v. State, 30 Ga. 383; Golden v. State, 25 Ga. 527; McGuffie
V. State, 17 Ga. 497; McPherson v. State, 22 Ga. 478. See, also, dic-
tum in Holder v. State, 5 Ga. 441.
208 McDanlel v. State, 30 Ga. 853.
210 Golden v. State, 25 Ga. 527.
2" Dickens v. State, 30 Ga. 383; McDanlel t. State, SO Ga. 853.
(56)
Ch. 2] PROVINCE OP COURT AND JURY. § 26
Thereafter the decisions, the first of which was made in
1871, laid down the contrary doctrine, without any reference
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.^^^ The provision on this subject, which was merely
statutory until 1877, was incorporated into the constitution
during that year. In commenting on this it was said, in a
recent decision : "The constitution of 1877 * * * sim-
ply re-enacts, in identical language, the provisions of the
Code thereon. It emphasizes it by inserting it in the con-
stitution ; but it put it there subject to the construction which
had been put on the same words in the Code."^^^
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
cases shall be the judges of the law and the facts,"^^* clearly
and unmistakably confers on the jury the right to determine
the law independently, and in disregard of the court's in-
structions, and that a contrary construction furnishes an ex-
cellent example of judicial legislation. These provisions
should be considered in the light of surrounding circum-
stances. It must be borne in mind that a widespread, but
erroneous, idea existed that at common law the jury were not
bound to follow the instructions of the court in criminal
cases. The object of legislation, therefore, was to put an
end to this uncertainty. If the legislature had intended that
212 Anderson v. State, 42 Ga. 9; Hill v. State, 64 Ga. 470; Malone
V. State, 66 Ga. 539; Danforth v. State, 75 Ga. 614; Hunt v. State,
81 Ga. 140; Robinson v. State, 66 Ga. 517; Rldenhour v. State, 75
Ga. 382.
213 Hill VL State, 64 Ga: 470.
214 Const. Ga. art. 1, § 2, par. 1; CodeGa. 1882, § 5018.
(57)
I 27 INSTRUCTIONS TO JURIES. [Oh. 2
the jury should be judges of the facts only, it is only rea-
sonable to suppose that the words "of the law" would have
been omitted from the statute. If it was intended by the
statute that the jury should be judges of the facts only, the
use of these words could only produce doubt and confusion.
The writer is convinced that the early decisions have placed
the proper construction on these statutes.
5 27. Same — Rule in Louisiana.
In Louisiana, the court is required by statute to instruct
the jury as to the law applicable to the case.^*'' There are
also provisions, both constitutional and statutory, on the
power of the jury to judge the law.^^' In construing these
latter provisions, there is much conflict of opinion as to their
proper meaning. The first two decisions in which the ques-
tion was passed upon are difficult to construe, and have been
cited by the supreme court of this state, both in support of
the proposition that the jury ought, as a general rule, to fol-
low the instructions, but is under no compulsion to do so,^^^ '
and also to support the proposition that, while the jury has
the power to disregard the instructions, yet in so doing it
would violate its oath and duty.^** In the first of these two
decisions, the court refused to reverse for a refusal to in-
struct 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 con-
215 state V. Tally, 23 La. Ann. 677; State v. Tisdale, 41 La^ Ann.
338.
218 See ante, § 21.
217 State V. Tally, 23 La. Ann. 677, citing State v. Ballerio, 11 La.
Ann. 81, and State v. Scott, 12 La. Ann. 386.
218 State V. Hatthews, 38 La. Ann. 795, citing the two cases men-
tioned in the preceding note.
(58)
Ch. 2] PROVINCE OP COURT AND JURY. § 27
elusive 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 ver-
dict. We think not."^*® In the second decision, the judg-
ment 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 characterized 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 conclu-
sive, but that they are not bound to do so, and in extreme
cases may disregard the court's instructions.**" In the next
case decided, 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 instructions: 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 had the power, but not the right, to disregard the charge
of the judge." The reviewing court cited the two preceding
decisions, and reversed the decision, saying: "It, doubtless,
would be a safe rule for the jury to take the law from the
judge as their guide, but they are not bound to do so."^*^
Relying on this decision, the judgment in the next case was
reversed because the trial judge refused to instruct that the
jury were the judges of both the law and the faets.^** Then
follows a decision in which it was held that the jury ought,
as a rule, to follow the instructions, but are not bound to
do so.^*^ This decision was handed down in 1871. SincO
21* State V. Ballerlo, 11 La. Ann. 81.
uo state T. Scott, 11 La. Ann. 429.
Z21 State y. Jurche, 17 La. Ann. 71.
222 State V. Sallba, 18 La. Ann. 35.
22S State v. Tally, 23 La. Ann. 677.
(59)
8 27 INSTRUCTIONS TO JURIES. [Ch. 2
that time, the court has veered around to the opposite view.
In a recent case it was said : "Whatever views may formerly
have been entertained upon this subject, it is now the set-
tled jurisprudence of the state that 'the jury is bound to ac-
cept and apply the law as laid down by the judge, and that,
while it has the power to disregard it, yet in so doing it
would violate its oath and duty.' "^^* This view is sustained
by all. the recent decisions.^^^ !N"otwithstanding the fact that
it is now considered the duty of the jury to adopt the in-
structions of the court as the law of the case, it is neverthe-
less 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.^^* But it is
also held that, after giving such an instruction, the court
must explain the modified sense in which they are so;^^^ that
is to say, they should be directed to take and apply the law
as laid down by the court.^^* This judicial juggling com-
mends itself to reason in an equal degree with the old nur-
sery jingle, in which a mother gave her daughter permission
to go swimming on condition that she did not go near the
water.
In charging the jury in accordance with the view now pre-
vailing, it has been held proper to give the jury the follow-
ing instruction: "The constitution of this state makes jurors
the judges of the law as well as of the facts in criminal cases ;
22* State T. Desforges, 47 La. Ann. 1167.
2M state v. Tisdale, 41 La. Ann. 341; State v. Callahan, 47 La.
Ann. 444; State v. Johnson, 30 La. Ann. 904, 905; State v. Matthews,
38 La. Ann. 795; State v. Cole, 38 La. Ann. 846; State v. Ford, 37
La. Ann. 465; State v. Vinson, 37 La. Ann. 792.
228 State v. Vinson, 37 La. Ann. 792.
227 state V. Ford, 37 La. Ann. 444; State v. Johnson, 30 La. Ann.
905; State v. Tisdale, 41 La. Ann. 338.
228 state v. Ford, 37 La. Ann. 444.
(60),
Ch, 2] PROVINCE OP COURT AND JURY. § 28
but while this is so, I charge you that it is your sworn duty
to follow the law given to you by the court * * * The
very moment you feel that the law expounded in this charge
is the law of this case, your oaths compel you to apply it to
the facts, and, though you have the physical power to dis-
regard it, you cannot do so without violating your oaths. In
taking the law from the court, you incur no responsibility;
in disregarding it, your error is without remedy. But, on
the other hand, misstatements of the law by the court to
the prejudice of these accused may be excepted to by their
counsel, and its correctness passed upon by a higher tri-
bunal. Your oath binds you to rest your verdict on the law
and the evidence."^^®
§ 28. Same — livle in Massachusetts.
In one case decided before the enactment 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,^*" but this view was repudiated 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 con-
ferred by the statute.**^ This holding has been adhered to
in subsequent decisions,^^^ 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
228 State V. Ford, 37 La. Ann. 465.
230 Com. T. Knapp, 10 Pick. (Mass.) 495.
281 Com. V. Anthes, 5 Gray (Mass.) 202.
2S2Com. V. Anthes, 12 Gray (Mass.) 29; Com. v. Rock, 10 Gray
(Mass.) 4; Com. v. Marzynski, 149 Mass. 68.
(61)
§ 28 INSTRUCTIONS TO JURIES. [Ch. 2
instructions, so far as they understood them, in applying the
law to the facts to be found by them.^*
233 Com. T. Anthes, 12 Gray (Mass.) 29.
(62),
CHAPTER ni.
ASSUMPTION OP FACTS IN INSTRUCTIONS.
S 29. Assumption of Disputed Pacts.
30. Improper Assumption of Pacts in Dispute Illustrated.
31. Instructions Held not to Assume Disputed Pacts.
32. Assumptions in Opposition to Evidence.
33. Assumption of Facts not Supported by Any Evidence.
34. Assuming Nonexistence of Pact in Absence of Evidence.
35. Assuming Facts by Way of Illustration.
36. Assumption of Admitted Facts.
37. Assumption of Pacts Supported by Strong and Uncontra-
dicted Evidence.
5 29. Assumption of disputed facts.
It being the exclusive province of the jury to determine
the existence or nonexistence of the facts, it follows that it
is an invasion of the province of the jury, and therefore er-
roneous, for the court in its instructions to assume the ex-
istence or nonexistence of material facts which are in issue
between the parties, and as to which the evidence is conflict-
ing,^ and it makes no difference in the application of the rule
iWadsworth v. Dunnam, 98 Ala. 610; Henderson v. Marx, 57 Ala.
169; Territory v. Kay (Ariz.) 21 Pac. 152; Cox v. State (Ark.) 60
S. W. 27; Montgomery's Adm'r v. Erwin, 24 Ark. 540; Little Rock
6 P. S. Ry. Co. V. Barker, 33 Ark. 350; People v. Buster, 53 Cal.
612; Llewellyn Steam Condenser Mfg. Co. v. Malter, 76 Cal. 242;
Downing v. Brown, 3 Colo. 571; Weil v. Nevltt, 18 Colo. 10; Huber
v. Peubei;, 10 MaeArthur (D. C.) 484; Ashmead v. Wilson, 22 Fla.
255; McDonald v. Beall, 55 Ga. 288; Southwestern Railroad v. Sin-
gleton, 67 Ga. 307; Allmendinger v. McHle, 189 111. 308; Hellyer v.
People, 186 111. 550; Bradley v. Coolbaugh, 91 111. 148; Meyer v.
Meyer, 86 111. App. 417; Harley v. Weiner, 58 111. App. 340; Dady
V. Condlt, 188 111. 234, reversing 87 111. App. 250; Mohr v. Klnnane,
(63)
§ 29 INSTRUCTIONS TO J UKIKS. [(Jh. 3
whether one fact or several are assumed.^ Any assumption,
either direct or indirect, will be error.* Where the evi-
85 111. App. 447; Noblesville & E. G. R. Co. v. Gause, 76 Ind. 142;
Carter v. Pomeroy, 30 Ind. 438; Russ v. Steamboat War Eagle, 14
Iowa, 363; Case v. Burrows, 52 Iowa, 146; Baltimore C. Ry. Co. v.
State, 91 Md. 506; Clifton v. Litchfield, 106 Mass. 34; Emmons v.
Alvord, 177 Mass. 466; Chadwick v. Butler, 28 Mich. 349; Weyburn
V. Kipp, 63 Mich. 79; Schwartz v. Germania Life Ins. Co., 21 Minn.
215; French v. Sale, 63 Miss. 386; Dunlap v. Hearn, 37 Miss. 471;
Ellerbee v. State (Miss.) 30 So. 57; St. Louis, K. & N. W. R. Co. v.
St. Louis Union Stock Yards Co., 120 Mo. 541; State v. Gann, 72
Mo. 374; Day v. Citizens' Ry. Co., 81 Mo. App. 471; Andrews v.
Broughton, 84 Mo. App. 640; Mattingly v. Lewisohn, 13 Mont. 508;
Kipp V. Van Blarcom, 24 N. J. Law, 854; Pryor v. Portsmouth Cattle
Co., 6 N. M. 44; Vroman v. Rogers, 5 N. Y. Supp. 426; Watson v.
Gray, 4 Keyea (N. Y.) 385; Lawson v. Metropolitan St. Ry. Co.,
166 N. Y. 589, affirming 40 App. Div. 307; Paine v. Kohl, 14 Neb.
580; Metz v. State, 46 Neb. 547; State v. Duffy, 6 Nev. 138; Gaudette
V. Travis, 11 Nev. 149; Fleming v. Wilmington & W. R. Co., 115
N. C. 676; Weybrlght v. Fleming, 40 Ohio St. 52; State v. Whit-
ney, 7 Or. 386; Potts v. Jones, 140 Pa. 48; Greenfield v. Bast Har-
risburg P. Ry. Co., 178 Pa. 194; Hayes v. Pennsylvania R. Co., 195
Pa. 184; Com. v. Light, 195 Pa. 220; Wilson v. Atlanta & C. A. Ry.
Co., 16 S. C. 591; Wood v. Steinau, 9 S. D. 110; Roper v. Stone,
Cooke (Tenn.) 497; Willis v. Hudson, 72 Tex. 598; Missouri, K. &
T. Ry. Co. V. Brown (Tex. Civ. App.) 39 S. W. 326; Turner v.
Grobe (Tex, Civ. App.) 59 S. W. 583; Luckie v. Schneider (Tex. Civ.
App.) 57 S, W. 690; Houston v. Com., 87 Va. 257; Harrison v.
Farmers' Bank, 4 W. Va. 393; Parkersburg Nat. Bank v. Als, 5 W.
Va. 50; Owen v Long, 97 Wis. 78, Hempton v. State (Wis.) 86 N.
W. 596; Adams v. Roberts, 2 How. (U. S.) 486; Knickerbocker Life
Ins. Co. V. Foley, 105 U. S. 350; Marti v. American Smelting & Re-
fining Co. (Utah) 63 Pac. 184; Kirk v. Territory, 10 Okla. 46; L. I.
Aaron Co. v. Hirschfeld, 89 111. App. 205; Hayes v. Wagner, 89 111.
App. 390; Taylor v. Territory (Ariz.) 64 Pac. 423; Commonwealth
T. Hazlett, 16 Pa. Super Ct. 534; Judd v. Isenhart, 93 111. App. 520;
Henderson County v. Dixon (Ky.) 63 S. W. 756; St. Louis S. W.
Ry. Co. V. Smith (Tex. Civ. App.) 63 S. W. 1064; Walker v. Nix
(Tex. Civ. App.) 64 S. W. 73.
2 Morrison v. Hammond's Lessee, 27 Md. 604.
» People V. Williams, 17 Cal. 142.
(64)
Ch. 3] ASSUMPTION OF PACTS. § 29
deuce is conflicting upon a vital question, tlie jury should
be left to find the facts without any interference by the
court.* The instructions should be so drawn as to state the
law upon a supposed state of facts to be found by the jury."
No matter how slight the evidence is, the court cannot as-
sume the existence of facts, if there is any room for a con-
trary finding.* 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.'' This rule is, of course, subject to. the qualification
that the court may direct a verdict where the evidence would
not sustain a contrary finding.* It follows that instructions
which assume as proved matters as to which the evidence is
conflicting may and should always be refused.®
* Bradley v. Coolbaugh, 91 111. 148. ' '
» Sherman v. Dutch, 16 111. 283.
« Clark V. McGraw, 14 Mich. 139; Lewis v. Rice, 61 Mich. 97;
Miller V. Mutual Ben. Life Ins. Co., 31 Iowa, 216; Stevens v. Snyder,
8 111. App. 362.
T Blackledge v. Clark, 24 N. C. 394.
» See ante, § 5, "Directing Verdict." See, also, Wright v. City of
Fort Howard, 60 Wis. 123.
• Liner v. State, 124 Ala. 1; Poe v. State, 87 Ala. 65; Griell v.
Lomax, 94 Ala. 641; Patrick Red Sandstone Co. v. Skoman, 1 Colo.
App. 323; Simpson v. Post, 40 Conn. 321; Daniels v. State, 2 Pen-
newill (Del.) 586; Straus v. Minzesheimer, 78 111. 492; Lafayette,
M..& B. R. Co. V. Murdock, 68 Ind. 137; Sample v. Randz (Iowa) 84
N. W. 683; Stier v. City of Oskaloosa, 41 Iowa, 353; Connors v.
Chlngren, 111 Iowa, 437; Metropolitan Sb Ry. Co. v. McClure, 58
Kan. 109; Moore v. Wilcox, 4 Dana (Ky.) 534; State v. Barnes, 48
La. Ann. 460; Munroe v. Woodruff, 17 Md. 159; Brooks v. Inhab-
itants of Somerville, 106 Mass. 271; Foley v. Riverside S. & C. Co.,
85 Mich. 7; Lake Superior & M. R. Co. v. Greve, 17 Minn. 322 (Gil.
299); Worley v. Hicks (Mo.) 61 S. W. 818; People v. Bonds, 1 Nev.
33; Vroman v. Rogers, 5 N. Y. Supp. 426; Chaffln v. Lawrance, 50
N. C. 179; Bradley v. Ohio River & C. Ry. Co.,. 126 N. C. 735; Penn-
(65)
5 — Ins. to .Turles.
§ 2') IXSTROJCTIOTSIS T0 JURIES. [Ch. 3
Although it 'has been said that instructions which assume
material facts are erroneous unless given in connection with
another, which leaves it to the jury to determine whether
the assumed facts are true.^" there are decisions holding that
an improper assumption of a fact is not cured by other in-
structions submitting the question of its existei. 3e to the
jury.^^ The improper assumption of facts in an instruction
is not necessarily ground for reversal, as the error may have
been invited by the party complaining,-'^ or the error may
have been harmless.-'* Thus, the assumption of a contro-
verted fact in the charge, when by such assumption a propo-
sition favorable to the complaining party is emphasized and
sylvania R. Co. v. McTlghe, 46 Pa. 316; Watts v. Blalock, 17 S. C.
162; Arneson v. Spawn, 2 S. D. 269; White v. Van Horn, 159 U. S. 3.
10 State V. Hecox, 83 Mo. 531; State v. West, 157 Mo. 309.
11 Gaboon v. Marshall, 25 Gal. 201; Bressler v. Schwertferger, 15
111. App. 294. "An Instruction which assumes that plaintiff has
proven damages is • * * necessarily prejudicial to the defend-
ant," 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 & Refin-
ing Go. (Utah) 63 Pac. 184.
12 As to invited error in instructions, see post, c. 32, "Appellate
Review of Instructions." Where a requested instruction has been
refused, the party making the request cannot object to an instruc-
tion substantially similar, that it assumes facts of which there Is
no evidence. Philadelphia, W. & B. R. Co. v. Howard, 13 How.
(XT. S.) 307 See, also, Auburn Bolt & Nut Works v. Shultz, 143
Pa. 256, in which it was held that, if an instruction is asked,
based on the assumption that a certain fact is before the jury, the
party presenting it cannot afterwards object that there was no evi-
dence in the case justifying the submission of the question.
"Bradley v. Lee, 38 Gal. 362; City of Chicago v. Moore, 139 111.
201; Ricards v. Wedemeyer, 75 Md. 10; Hardy v. Graham, 63 Mo.
App. 40. And see, generally, post, c. 32, "Appellate Review." Or-
dinarily, however, the error will be presumed to be prejudicial
unless it affirmatively appears otherwise. See, post, o. 32, "Appel-
late Review." And see, generally, the cases cited supra, this sec-
tion.
(66)
Gh. 3J ASSUMPTION OF FACTS. § 30
made more promimEat, is D©t a ground for reversal.** But
where the charge is so worded as to assuane the existence of a
material controverted fact involved in the issue, regarding
which the evidence is conflicting, and the verdict is in accord-
ance with such assumption, a new trial should be granted.*"
8 SO. Improper assumption of facts in dispute illustrated.
The improper assumption of facts in the instructions to
the jnyy is a most fruitful source of reversal. The error is
one into which counsel in requesting, and courts in giving,
instructions, are prone to fall through inadvertence, rather
than intention, for the rule against such assumptions is ele-
mentary and familiar. The question usually arises as one
of construction upon the language used in the instructions.
For this reason, it is thought not improper to give a consid-
erable number of illustrations of instructions attacked as er-
roneous because of this vice. It will be seen that the rule
is enforced somewhat strictly.
Where, in a prosecution for receiving stolen goods, it ap-
pears that the goods were carried in a buggy, over which de-
fendants had control, to the place of sale, and the issue of
fact most seriously controverted is as to whether defendants
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 de-
fendants took them there, and is reversible error.*® An in-
struction "that, if they [the jury] find from all the evi-
dence * * * that the goods sold in this case were sold
on the credit of the defendant, then the plaintifE is entitled
14 Fort Worth Pub. Co. v. Hitson, 80 Tex. 216.
15 Boaz V. Schneider, 69 Tex. 128; L. I. Aaron Co. v. Hirschfeld,
89 111. App. 205.
16 Com. V. Light, 195 Pa. 220.
(67)
§ 30 INSTRUCTIONS TO JURIES. [Ch. 3
to recover," is erroneous, in assuming that the goods were
sold." Where it is a question in issue whether or not the
plaintiff sustained any damage from the wrong complained
of, an instruction containing the language, "that, in esti-
mating the measure of damages in this case," etc., and "that
they must find for the plaintiff, and the only question in thi»
case is the amount of damages which they ought, under the
evidence, to allow the plaintiff," and that "in arriving at the
verdict, and the amount of damages you should give plain-
tiff in this case," etc., assumes that some damages have been
sustained by plaintiff.^* 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 pr'eponderance of the evidence and the facts and cir-
cumstances in evidence, 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.^" An instruction that, "if the jury shall be-
lieve from the evidence that the damage to the f * *
[property] of the plaintiff was occasioned by fire communi-
cated from the engines of, or by the agent or agents of, the
defendant, * * * then * * *," assumes that dam-
age was done to plaintiff's property.^" In trespass for as-
1' Cropper v. Pittman, 13 Md. 190.
18 Dady v. Condit, 188 111. 234, reversing 87 111. App. 250. An In-
struction which assumes that plaintiff has proven damages Invades
the province of the jury, and is necessarily prejudicial to the de-
fendant. Marti V. American Smelting & Refining Co. (Utah) 63
Pac. 184. In an action for assault and battery, where the defense
was a denial, an Instruction that the jury, "in arriving at the com-
pensatory damages," etc., was held erroneous, as assuming that
compensatory damages were to be awarded. Judd v. Isenhart, 93
111. App. 520.
19 Dady v. Condit, 188 111. 234.
20 Baltimore & S. R. Co. v. Woodruff, 4 Md. 242,
(68)
^^^. 3J ASSUMPTION OF FACTS. g 30
sault 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.^'
In a proceeding for forcible entry and detainer, instructions
"that defendant had, and had proved that he had, undisputed
possession [of the premises] between two and three years,"
are erroneous, as assuming the fact as determined. ^^ In an
action for a balance due on 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 instruction that the measure of damages
was the difference between the amount warranted and the in-
voice is an improper assumption of controverted facts.^* In
an action for commissions for effecting a sale of land, a re-
quest 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.^^
Courts, sometimes, from facts which they leave to the
jury to find, make certain deductions, which amount to an
unwarranted assumption. In an action for personal in-
juries, an instruction assuming that a child fifteen years
old was of "tender years and imperfect discretion" was held
erroneous. Whether or not he was of "tender years," etc.,
should have been submitted to the jury, and the facts of his
age, capacity, experience, and knowledge of the particular
danger passed on by it.^® An instruction : "To constitute a
delivery, it is not necessary that the deed should be placed in
siMohr v. Kinnane, 85 111. App. 447.
!2Wall V. Goodenough, 16 111. 415.
«3 Smith V. Dukes, 5 Minn. 373 (Gil. 301).
24 Sample v. Rand ( Iowa) 84 N. W. 683.
2B Day V. Citizens' Ry. Co., 81 Mo. App. 471. Compare Schmidt v.
St. Louis R. Co. (Mo.) 63 S. W. 834; Bertram v. People's Ry. Co.,
154 Mo. 639.
(69)
§ 30 INSTRUCTIONS TO JURIES. [Ch. 3
the grantees' hands, hut it is necessary that it should he and
was put into the control of the grantees, and that the grantees
accepted the same. That would be a delivery. If you be-
lieve from the evidence that the grantor placed said deed or
instrument in a trunk in the house where she and grantee
had access to, and told grantee that she could get said deed or
instrument at any time she desired, and have it recorded, if
she wanted to, then that would be a delivery," — is erroneous,
since, whether such facts constitute a delivery depends upon
the iiitent of the grantor, and such instruction assumes that
the intent existed.^* In an action for personal injuries
caused by a locomotive, an instruction that, "if the jury be-
lieve the evidence, the plaintiff could have extricated himself
from any danger after he saw the engine," is properly re-
fused, as being an inference to be made by the jury from all
the evidence.*'^
Instructions are erroneous which submit to the jury the
question of the existence of a chain of facts, but are so
framed that they assume the existence of one link in the
chain. An instruction that, "if the jury find that the plain-
tiffs did the work * * * under the provisions of the
contract, * * * offered in evidence by the defendant,"
assumes the existence and execution of the contract.^® 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 open to criticism,
as telling the jury that there were conditions attached to the
transfer of the notes, is not ground for reversal, if other parts
of the charge make the matter perfectly clear.^® A request
for an instruction that the defendant railway company was
26 Walker v. Nix (Tex. Civ. App.) 64 S. "W. 73.
2' McQuay v. Richmond & D. R. Co., 109 N. C. 585.
28 Baltimore & 0. R. Co. t. Resley, 7 Md. 297.
29 Turner v. Grobe (Tex. Civ. App.) 59 S. W. 583.
(70)
Ch. 3] .ASSUMPTION OF FACTS. § 30
not responsible for the negligence of the city's flagman is
properly refused because it assumes that the flagman was an
employe of the city, instead of leaving that fact to be found
by the jury. The onus of proving such fact resting upon the
party making the request, the clearness of the proof does not
make such assumption proper.^* An instruction "that the
plaintiff is entitled to recover such sum as the jury shall be-
lieve, from the evidence, to be the value of the materials be-
longing to him, and used by the defendants in tha nevsr arch,"
assumes that such materials were so used.^' On an indict-
ment for murder, an instruction that "the theory of the de-
fense is that defendant is not guilty, but that the injury or
wound which the deceased woman received 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.^^
Another class of instructions direct the jury as to their
verdict in case they should find that the injury complained
of resulted, or did not result, from a specified fact. Such
instructions are erroneous, as assuming the existence of
the specified fact, though in many cases the court prob-
ably has no thought of making such an assumption. Thus,
an instruction that, "if the jury believe * * * the in-
jury to the plaintiff occurred by reason of the neglect of the
employes of the defendant to obey the signal of the sema-
phore, * * *" assumes as a fact the neglect of the de-
fendant's employes to obey such signal.^ ^ An instruction
"that he [the plaintiff] is entitled to recover in this action
all damages proved to have been sustained by him on ac-
count of the trespasses conxmitted by defendant on plaintiff's
premises, as alleged in the declaration," assumes the com-
30 Baltimore ConsolWated Ry. Co. v. State; 91 Md. 506.
81 Denmead' v. Coburn, 15 Md. 29.
82 HeHyer v. People, 186 111^ 550.
83 Illinois Cent R. Co. v. Zang, 10 111. App. 594.
(71)
§ 31 INSTRUCTIONS TO JURIES. [Ch. 3
mission of the trespass.'* An instruction that, "if the plain-
tiff has sustained no injury by reason of the alleged trespass,
still he is entitled to a verdict for nominal damages," ia er-
roneous for assuming that a trespass was committed.*''
§ 31. Instmctions held not to assume disputed facts.
An instruction which states in hypothetical form the facts
which the evidence tends to prove is not obnoxious to the
rule against improper assumptions of fact.^® Where the prop-
ositions in an instruction 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 believe from the evidence
existed, they may consider, it will not be liable to the ob-
jection that it assumes there is evidence of the fact.'^ It is
»* Small v. Brainard, 44 111. 355.
so Steele v. Davis, 75 Ind. 191.
88 Morgan v. Wattles, 69 Ind. 260; Jones v. Edwards, 57 Miss. 28;
State V. Thompson, 19 Iowa, 299; Paul v. Meek, 6 Ala. 753; Ham
V. Delaware & H. Canal Co., 142 Pa. 617; Ladd v. Pigott, 114 111.
647; Galveston, H. & S. A. Ry. Co. v. Waldo (Tex. Civ. App.) 32 S.
W. 783; O'Connell v. St. Louis, C. & W. Ry. 'Co., 106 Mo. 482; Han-
nibal & St. J. R. Co. V. Martin, 111 111. 219; Missouri Pac. Ry. Co. v.
Lehmberg, 75 Tex. 61; Austin & N. W. Ry. Co. v. Beatty, 73 Tex.
592; Sioux City & P. R. Co. v. Smith, 22 Neb. 775; Seaboard Mfg.
Co. V. Woodson, 94 Ala. 143; Jackson v. Burnham, 20 Colo. 532; Ful-
ton V. Maccracken, IS' Md. 528; Klutts v. St. Louis, I. M. & S. Ry.
Co., 75 Mo. 642; City of Logansport v. Justice, 74 Ind. 378.
ST Ladd V. Pigott, 114 111. 647. See, also, Triolo v. Foster (Tex.
Civ. App.) 57 S. W. 698. An Instruction in an action involving ac-
counts between parties that, if a remittance by plaintiff to defendant
was not a loan, but to make good an overdrawn account, there could
be no recovery for such item, does not assume any fact Ryder v.
Jacobs, 196 Pa. 386. In an action for injury at a railway crossing,
an instruction "that as to whether or not defendant blew off steam
from its engine at said railroad crossing, and by reason thereof
frightened the horse that the. wife of plaintiff was driving, is a ques-
tion of fact to be determined by the jury from the evidence before
them; and if you find that the defendant company blew off steam
(72)
Cfi. 3] ASSUMPTION OF FACTS. § 31
therefore 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
* * *;"38 ^jj(j g^jj instruction that, if the defendant did
certain acts specified, they should infer a fraudulent intent,
is not objectionable as assuming that these acts are estab-
lished.^^ Instructions stating legal principles in the ab-
stract, though applicable to the evidence in the case, cannot be
objected to as assuming the existence of facts not proven.*"
So it is not trenching upon the province of the jury to say that
evidence has been given tending to establish a fact,*^ or to
use the words, "as you may find,"*^ or to tell the jury that
the plaintiff "claimed" that a certain fact was shown by the
evidence,*^ or to state that one of the parties "claimed" cer-
tain facts to have been shown,'** or to state matters of com-
mon knowledge.*'' An instruction that, in estimating plain-
tiff's damages, the jury might take into consideration physi-
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 employes of defendant knew of the presence of plaintiff's wife on
said track, then you will further consider whether or not the blow-
ing 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. Ry. Co. v. Belt (Tex. Civ. App.) 59 S. W.
607.
ssMullin V. Spangenberg, 112 111. 140.
»» State V. Thompson, 19 Iowa, 299.
«o Taylor v. Territory (Ariz.) 64 Pac. 423.
"State v. Watkins, 11 Nev. 30; GraTiam v. Nowlin, 54 Ind. 389.
*2 Bronnenburg v. Charman, 80 Ind. 475, in which case the court
Instructed: "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 consumed by fire."
«3 Carraher v. San Francisco Bridge Co., 81 Cal. 98.
«* Hawley v. Chicago, B. & Q. Ry. Co., 71 Iowa, 717.
" Harris v. Shebek, 151 111. 287.
(T3)
e 31 INSTRUCTIONS TO JURIES. [Ch. 3
cal injuries, if any, resulting from tbe injury, does not as-
sume that the injuries complained of in the declaration were
inflicted.** So, an instruction to find such sum as will com-
pensate for the injury, if any, does not assume the injury.*''
An instruction that defendant "had no right to do" certain
specified things does not assume that he did them, or take
the question of fact from the jury.** An instruction that a
husband had the right to give personalty to his wife, without
any writing evidencing the gift, and that such a gift would
be valid as against the heirs, does not improperly assume
that the gift was in fact made.** An instruction that a serv-
ant "did not accept risks which grew 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.^" In an action against an agent and
others by the principal for fraud and conspiracy, if an in-
struction that, "if plaintiff'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. ^^ An instruction that "it is im-
portant that you determine v/hether the alleged assault, or
assault and battery, made upon W. [the deceased] by de-
fendant, either alone or in company with others, was an un-
lawful or a lawful act," does not assume that such assault was
proved.'^ Where an answer sets up payment as a consequence
*« Evans v. City of Joplin, 84 Mo. App. 296.
«T Western Union Tel. Co. v. Linn (Tex. Civ. App.) 23 S. W. 895.
<8Timm v. Bear, 29 Wis. 254.
*« Hopper V. Hopper, 84 Mo. App. 117.
»o Taylor, B. & H. Ry. Co. v. Taylor, 79 Tex. 104.
01 Emmons v. Alvord, 177 Mass. 466.
62 Patterson v. State. 70 Ind. 341.
(74)
Ck. 3*j ASSUMPTION OF FACTS. § 31
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.^^ An instruc-
tion 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.^* "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.^" An instruction that
"it is incumbent on the defendants, under the contract al-
leged in plaintiff's declaration, to show an offer to perform,
or some sufficient excuse for nonperformance, 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 as-
sume the existence of the contract.^^ Where the evidence
was that the defendant struck the deceased on the head with
a heavy club, causing death within a few hours, an in-
struction that, "if the defendant, in the heat of passion, and
without design to cause death, by 'means and use of a dan-
gerous 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 de-
gree, is not objectionable as assuming that the club was a
dangerous weapon. "^^
» Semple v. Crouch, 8' Moi App. 593.
B*De St. Aubin v. Field (Colo.) 62 Pac. 199.
isn Blackman, v. Cowan, 11 Mo. Appi 589.
08 Bird V. Forceman, 62 III. 212.
CT State T. Grayor, 16 Mo. App. 65S, 89 Mo. 600.
(75)
§ 33 INSTRUCTIONS TO JURIES. [Ch. 3
i 32. Assumptions in opposition to evidence.
It is, of course, erroneous to assume as established a fact
or state of facts in direct opposition to the evidence.^^ A re-
quest for an instruction, in an action of ejectment, that a deed
to a certain person under a certain name is a transfer of
rights to a person having the same surname, but whom the
evidence shows to be a different person, is properly re-
fused-s^"
§ 33. Assumption of facts not supported by any evidence.
Where there is absolutely no evidence in the case upon
which a finding of certain facts could be based, it is, of
course, erroneous for the court to assume in the instructions
the existence of such facts,^" and such error will generally
furnish sufficient ground for reversal.®" Eequests for in-
08 Bowman v. Roberts, 58 Miss. 126; McCown v. Shrimpf, 21 Tex.
22; Texas Land & Loan Co. v. Watson, 3 Tex. Civ. App. 233; Moffatt
V. Conklln, 35 Mo. 453; Leslie v. Smith, 32 Mich. 64.
BsaWorley v. Hicks (Mo.) 61 S. W. 818.
08 Kidd V. State, 83 Ala. 58 ; Little Rock & Ft. S. Ry. Co. v. Wells,
61 Ark. 354; People v. Strong, 30 Cal. 151; People v. Lee Chuck, 74
Cal. 30; Cain v. Cain, 1 B. Mon. (Ky.) 213; Gerren v. Hannibal &
St. J. R. Co., 60 Mo. 405; Chouteau v. Searcy, 8 Mo. 733; Hood v.
Olin, 68 Mich. 165; Brower v. Bdson, 47 Mich. 91; Turner v. O'Brien,
11 Neb. 108; Newton Wagon Co. v. Diers, 10 Neb. 284; Perkins v.
Attaway, 14 Ga. 27; Musselman v. East Brandy wine & W. R. Co.
(PaO 32 Leg. Int. 404; Kelly v. Eby, 141 Pa. 176; Chicago W. D. Ry.
Co. V. Mills, 91 111. 39; Pease v. Catlin, 1 111. App. 88; Russell v. Min-
teer, 83 111. 150; Hill v. Childress, 10 Yerg. (Tenn.) 515; Moore v.
State, 65 Ind. 382 ; Railway Passenger Assur. Co. v. Burwell, 44 Ind.
460; Texas Land & Loan Co. v. Watson (Tex. Civ. App.) 22 S. W.
873; Holtzclaw v. State, 26 Tex. 682; Jones v. Randolph, 104 U. S.
108; Ward v. United States, 14 Wall. (U. S.) 28; Howes v. Carver,
3 Iowa, 257; State v. Harrington, 12 Nev; 125; Schoenberg v. Voigt,
36 Mich. 310; Hart v. Firzlaff, 67 Mich. 514; Flanders v. Stark, 37
N. H. 424; Hill v. Spear, 50 N. H. 253.
«o Kidd v. State, 83 Ala. 58; Musselman v. East Brandy wine & W.
(76)
Ch. 3] ASSUMPTION OP PACTS. § 34
structions affected witli this vice should, of course, be re-
fused.*^ Thus, an instruction assuming that an admission
has been made by the prosecution, -which has not in fact been
made, is erroneous.*^ So, where there is no evidence before
the court that any witness had sworn falsely, but the main
witness for plaintiff, before his final dismissal as a witness,
asks leave to malie 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 omnihus.^^ An instruction assum-
ing the existence of a partnership between the parties, and
stating the law of partnership, is erroneous, where there is
no evidence of such partnership;** and where there was no
testimony of grossly unskilled advice given by counsel (un-
less 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 erroneous, as charging upon a supposed state of
facts which did not exist.®*
§ 34. Assuming nonexistence of fact in absence of evidence.
Where there is no evidence tending to prove a matter in
R. Co. (Pa.) 32 Leg. Int. 404; Kelly v. Eby, 141 Pa. 176; Hill v.
Childress, 10 Yerg. (Tenn.) 515; Planders v. Stark, 37 N. H. 424;
Newton Wagon Co. v. Diers, 10 Neb. 284; Bowie v. Spalds, 26 Neb.
635.
«i Washington & G. R. Co. v. Gladmon, 15 Wall. (TJ. S.) 401; Dor-
sey V. State, 1 Tex. App. 33 ; Flanagan v. Boggess, 46 Tex. 330 ; Peo-
ple V. Cotta, 49 Cal. 166; Mascheck v. St. Louis R. Co., 3 Mo. App.
600; Chicago W. D. Ry. Co. v. Mills, 91 111. 39; Chicago Anderson
Pressed Brick Co. v. Reinneiger, 140 111. 334; Chase v. Horton, 143
Mass. 118; Rushmore v. Hall, 12 Abb. Pr. 420; Lebanon Mut. Ins.
Co. V. Losch, 109 Pa. 100; HarpeV v. Philadelphia Traction Co., 175
Pa. 129 ; Crawford v. Roberts, 50 Cal. 235.
62 People V. Cotta, 49 Cal. 166.
es Kay v. Noll, 20 Neb. 380.
€4 Preeman v. Exchange Bank, 59 111. App. 197.
65 Perkins v. Attaway, 14 Ga. 27.
(77)
§ 3o INSTRUCTIONS TO JURIES. , [Ch. 3
issue, the court may assume ,that the fact has not been proved,
and should direct the jury that there is no evidence to
prove it.** ,
§ 35. Assuming facts by way of illustration.
It is not a violation of the rule against the assumption of
facts in instructions for the court to assume facts merely in
order to illustrate the application of a proposition of law
pertinent to the case.*'' This is a common practice, and no
intelligent juror can be misled by such illustrations.**
Where assumed facts are used to illustrate a proposition
of law, error cannot be assigned simply because the facts
assumed conform to a theory of the case urged by the oppo-
site party.*^ And in a criminal case the court may illus-
trate its instructions to the jury by an hypothesis unfavorable
to the prisoner, provided the evidence justifies it, and need
not say anything of an opposite state of facts, if there be no
evidence of these facts before the jury.''" Where assumed
facts are used by way of illustration, it should be impressed
68 state V. Banks, 48 Ind. 197; Fripp v. Williams, Birnie & Co.,
14 S. C. 510; State v. Cardwell, 44 N. C. 245; McCombs v. North
Carolina R. Co., 67 N. C. 193; Wells v. Clements, 48 N. C. 168; Red-
man V. Roberts, 23 N. C. 479 ; Willis v. Branch, 94 N. C. 142 ; Horan
V. Long, 11 Tex. 230; Underwood v. American Mortgage Co., 97 Ga.
238; People v. Sternberg, 111 Cal. 3, 11; Sharp v. Parks, 48 111. 511.
6T Melledge v. Boston Iron Co., 5 Cush. (Mass.) 180; Central Rail-
road & Banking Co. v. Smith, 80 Ga. 526; State v. Obregon, 10 La.
Ann. 799; Pressley v. State, 19 Ga. 192; People v. Williams, 59 Cal.
674; Gage v. Payne, Wright (Ohio) 678; Masters v. Town of Warren,
27 Conn. 293; Gullikson v. Gjorud, 82 Mich. 503; Long v. Township of
Milford, 137 Pa. 122; Stephen v. State, 11 Ga. 225; People v. Camp-
bell, 30 Cal. 312; McConnell v. State, 67 Ga. 635; Bundy v. McKnight,
48 Ind. 503.
88 Masters v. Town of Warren, 27 Conn. 300.
69 Long V. TpwnsMp of Milford, 137 Pa. 122.
'0 Pressley v. State, 19 Ga. 192.
(78)
Oh. 3J ASSUMPTION OF FACTS. § 35
upon the minds of the jury that such facts have not been
proven in the case,'^^ and in such case it is proper to refer
the jury to the testimony, and direct them to examine it for
themselves, and to remind them that they are the exclusive
judges of the facts.^^ So 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 in-
duce a particular verdict.''^
In instructing the jury relative to the weight of positive
and negative testimony, it has been held that the court may
properly instri;ict "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 transpired, al-
though they had the same opportunity for observation."^*
But it has been held in an action against a city to recover
for an injury received from a defect in a culvert that an
instruction "that positive evidence is entitled to more weight
than negative evidence; 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 culvert 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 objectionable, and not apt as an illus-
tration, because it omits the element of the reasonableness
71 Bundy v. McKnight, 48 Ind. 503; Masters v. Town of Warren,
27 Con-n. 300; Long v. Township of Milford, 137 Pa. 122.
72 Stephen v. State, 11 Ga. 225.
73 State V. Obregon, 10 La. Ann. 799.
74McConnell v. State, 67 Ga. 635. See, also, post, c. 25, "Cau-
tionary Instructions."
(79)
§ 36 INSTRUCTIONS TO JURIES. [Cll. 3
of the fact testified toJ^ So, the court may illustrate a case
by an analogy; as, for instance, where the analogy was be-
tween 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. '^*
Where, in charging the jury, the court correctly states the
law governing the case, but exception is taken to an illus-
tration 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.^'^
An illustration, not founded upon testimony, may be given
in connection with correct principles of law, unless it mis-
leads.'''* The court is not required to hypothetically illus-
trate in the language of the request. It may give the law
as requested, leaving out all suppositive illustrations of the
legal principles, if it sees fit to do so.''*
i 36. Assumption of admitted facts.
It is the province of the jury to determine the existence or
nonexistence of disputed facts, but it would be absurd to
allow or require them to pass upon facts as to which there
is no dispute, and which are admitted by the parties. Ac-
cordingly, instructions are held to be erroneous which treat
as in issue and submit to the jury facts which are admitted
by the pleadings,*" or upon the trial.*^ The existence of
'B City of Greenville v. Henry, 78 111. 150.
76 Beecher v. Venn, 35 Micli. 466.
77 Wilson V. State, 33 Ga. 207. To same effect, see Masters v.
Town of Warren, 27 Conn. 300.
78 State V. Alverez, 7 La. Ann. 284; Parker v. Glenn, 72 Ga. 638.
79 Whitley v. State, 66 Ga. 659. See, also, Whitcomb t. Town of
Fairlee, 43 Vt. 671.
80 Orth V. Clutz's Adm'r, 18 B. Men. (Ky.) 223.
81 piaul V. Tharp, 83 Iowa, 665.
(80)
Ch. 3] , , ASSUMPTION OP FACTS. § 36
facts which are admitted by the pleadings may be properly
assumed in the instructions.*^ It is also proper to assume
the existence of facts which are treated by the parties during
the trial as conceded facts, whether put in issue by the
pleadings or not.®* "What all parties to a litigation treat
and assume as a fact during the entire progress of the trial
before the court, the court, without error, may assume for
convenience in drafting its instructions to the jury."** So,
82 Wiley V. Keokuk, 6 Kan. 94; Wiley v. Man-a-to-wah, 6 Kan. Ill;
Brown v. Emerson, 66 Mo. App. 63.
83 State V. Rash, 34 N. C. 382; State v. Williams, 47 N. C. 194;
Pope V, Kansas City Cable Ry. Co., 99 Mo. 400; Taylor v. Scherpe &
Koken Architectural Iron Co., 133 Mo. 349; McManus v. Woolverton,
19 N. Y. Supp. 545; St. Louis, J. & S. R. Co. v. Kirhy, 104 111. 345;
Martin v. People, 13 111. 341; Louisville, E. & St. L. C. R. Co. v. Utz,
133 Ind. 265; Wood v. Porter, 56 Iowa, 161; McKenna v. Hoy, 76
Iowa, 322; Walker v. Wootten, 18 Ga. 119; Johnson v. State, 30 Ga.
426; Cooper v. Denver & R. G. R. Co., 11 Utah, 46; Bragg v. Bletz,
7 D. C. 105; People v. Hobson, 17 Cal. 424; People v. Phillips, 70 Cal.
61; Waters' Lessee v. Riggin, 19 Md. 636; Fahey y. State, 27 Tex.
App. 146; Hedgepeth v. Robertson, 18 Tex. 858; Burt v. Long, 106
Mich. 210; Wright v. Towle, 67 Mich. 255; Mooney v. York Iron Co.,
82 Mich. 263; Kramer v. Gustin, 53 Mich. 291; Madden v. Blythe,
7 Port. (Ala.) 258; Thompson v. Johnson (Tex. Civ. App.) 58 S. W.
1030. A charge which states that plaintiff brings the action as the
successor of a receiver who died, and that plaintiff stands in the
place o£ such receiver, ia not a charge upon the facts, where th^
facts stated are admitted or adjudicated. Pickett v. Fidelity & Cas-
ualty Co. (S. C.) 38 S. E. 160. 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 rea-
sonable doubt. It is the province of the Jury to determine the
weight of the evidence in the case, and what admissions. If any, have
been made by defendant, and the effect thereof, and an instruction
that it is admitted by the defendant, etc., Is error. Hellyer v. Peo-
ple, 186 111. 550.
8* Taylor v. Scherpe & Koken Architectural Iron Co., 133 Mo. 349.
See, also, Martin T. People, 13 111. 341; Hanrahan t. People, 91 111.
142.
(81)
6 — Ins. to Juries.
§ 36 INSTRUCTIONS TO JURIES. [Ch. 3
in an action for personal injuries, the court may assume
that plaintiff suffered some pain and injury, where the cause
was tried on the theory that she did suffer some injury, but
that defendant was not liable because of defendant's con-
tributory negligence.*'' If a party, by his own admissions,
shows facts upon which the court is asked to make a ruling
against him, it may assume such facts to be true, because
he cannot contradict them.** Thus, 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 ars illegal.*^ "So, 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 properly assume that the homicide was murder.**
Where the fact of employment is in issue by the pleadings,
but such fact is admitted by the opposite party, the court may
properly instruct the jury that the employment is an es-
tablished fact.*® Where, on a trial for assault with intent
to murder by shooting, the defense was insanity, and de-
fendant "admitted the shooting as charged, and that it was
done under circumstances that would- have constituted mur-
der 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."®** A
party cannot complain of the assumption of facts by the
81 Hamilton v. Great Falls St. Ry. Co., 17 Mont. 334.
86 Waters' Lessee v. Riggin, 19 Md. 536; Finnell v. Walker, 48 111.
App. 331.
SI Wiley V. Keokuk, 6 Kan. 94.
88 State V. Rash, 34 N. C. 382.
«» Louisville, E. & St. L. C. R. Co, v. Utz, 133 Ind. 265; Cooper v.
Denver & R. G. R. Co., 11 Utah, 46.
80 People V. Hobson, 17 Cal. 424.
(82)
Ch. 3] ASSUMPTION OF FACTS. § 37
court, if the court has fallen into the error at the invitation
of the party complaining, and through adopting the language
of an instruction requested by him.'^ If the instructions as-
sume that certain facts are admitted by both parties, they will
be sustained on appeal, in the absence "of anything in the rec-
ord to show the contrary.** So, where all the facts are
agreed upon by counsel, it is not an invasion of the province
of the jury to assume the existence of such facta,*' and an in-
struction assuming that such facts are still in issue may prop-
erly be refused.**
§ 37. Assumption of facts supported hy stron? and uncontra-
dicted evidence.
According to a large number of decisions, there is no error
in assuming the existence of facts, or stating that they have
been proved, where the evidence in support of them is strong
and conclusive, and there is no evidence in conflict there-
with.*'' According to others, such an assumption is harm-
61 City of Chicago v. Moore, 139 111. 201.
82 Hinds V. Harbou, 58 Ind. 121; Drinkout v. Eagle Machine Works,
90 Ind. 423; Weekes v. Cottingham, 58 Ga. 559; Walsh v. Aetna Life
Ins. Co., 30 Iowa, 133.
»3 State V. Pritchard, 16 Nev. 101.
»* Stewart v. Nelson, 79 Mo. 522.
»8 Alabama: Drennen v. Smith, 115 Ala. 396; Gillespie v. Battle,
15 Ala. 276; Henderson v. Mahry, 13 Ala. 713; Marx v. Leinkauff,
93 Ala. 453; Williams v. Shackelford, 16 Ala. 318; Nelms v. Wil-
liams, 18 Ala. 650.
California: People v. Phillips, 70 Cal. 61; Watson v. Damon, 54
Cal. 278 ; People v. Messersmith, 61 Cal. 246.
Georgia: Jones v. State, 65 Ga. 621.
Illinois: Cook County v. Harms, 108 111. 151; Garretson v. Becker,
52 111. App. 255 ; City of Paxton v. Frew, 52 111. App. 393.
Indiana: Home Ins. Co. v. Marple, 1 Ind. App. 411; Smith v.
State, 28 Ind. 321; Chicago, St. L. & P. R. Co. v. Spilker, 134 Ind.
380.
(83)
§37 INSTRUCTIONS TO JURIES. [Ch. 3
less error, and not a ground for reversal.^® It has been said
to be better for the court, in charging the jury in a criminal
case, to avoid assuming any material fact* as proved, no mat^
ter how clearly such fact seems to be established;*^ but as a
general rule, -where the evidence of a fact is positive, and not
disputed or questioned, it is to be taken as an established
Iowa: Hughes v. Monty, 24 Iowa, 499; State v. Meshek, 61 Iowa,
316; 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. Law Rep. 454.
Michigan: Gillett v. Knowlee, 97 Mich. 77; McDonnell v. Ford,
87 Mich. 198; Wis'ner v. Davenport, 5 Mich. 501.
Minnesota: Alden v. City of Minneapolis, 24 Minn. 254.
Missouri: Carroll v. Missouri Pac. Ry. Co., 88 Mo. 248; Herriman
V. Chicago &'A. R. Co., 27 Mo. App. 435; State v. Moore, 101 Mo. 316.
Montana: Hogan v. Shuart, 11 Mont. 498.
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. Connor, 14 S. C. 621.
Texas: Houston & T. C. R. Co. v. Berling, 4 Tex. Civ. App. 544;
Missouri, K. & T. Ry. Co. v. Rogers (Tex. Civ. App.) 40 S. W. 849;
Reynolds v. Weinman (Tex. Civ. App.) 40 S. W. 560; Western Union
Tel. Co. V. Cooper (Tex.) 20 S. W. 47; Trinity & S. Ry. Co. v. Lane,
79 Tex. 643 ; Blum v. Schram. 58 Tex. 524.
Washington: Edwards v. Territory, 1 Wash. 195.
Wisconsin: Engmann v. Immel, 59 Wis. 249.
United States: Wiborg v. United States, 163 U. S. 632.
sfiTurpin's Heirs v. McKee's Bx'rs, 7 Dana (Ky.) 305; Helm v.
McCaughan, 32 Miss. 17; Cook v. Whitfield, 41' Miss. 541; Lamar v.
Williams, 39 Miss. 342; Mattingly v. Lewisohn, 13 Mont. 508; Fields
V. Wabash, St. L. & P. Ry. Co., 80 Mo. 206; Barr v. Armstrong, 56
Mo. 577; Caldwell v. Stephens, 57 Mo. 589; Walker v. City of Kan-
sas, 99 Mo. 647; Gerke v. Fancher, 158 111. 375; City of Lanark v.
Dougherty, 45 111. App. 266; Full en v. Coss, 82 Ind. 548; Koerner v.
State, 98 Ind. 7; Astley v. Capron, 89 Ind. 167; Farquhar v. Toney,
5 Humph. (Tenn.) 502.
07 People V. Dick, 32 Cal. 213.
(84)
Ch. 3] ASSUMPTION OF PACTS. § 37
fact, and the charge of the court should proceed upon that
basis.** Sq, it has been held that, if a fact is shown by
undisputed testimony, the court should treat the fact as es-
tablished, and refuse to instruct as to the necessity of proof
-of such fact,*® and that it is error to submit such fact to the
jury as being in dispute,^"" because this "would tend to con-
fuse and mislead the jury.^®^ "The rule which forbids the
judge to charge upon the weight of evidence does not require
or authorize him to assume as doubtful that which is clear
and indisputable, or to assume hypotheses at variance with
»s International & G. N. R. Co. v. Stewart, 57 Tex. 166. See, also,
Kelly V. Rowane, 33 Mo. App. 440. Where the age of plaintltf 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. (Mo.) 63 S. W.
834. But an instruction assuming that a child fifteen years old was
"of tender years, and imperfect discretion," was held erroneous.
Day V. Citizens' Ry. Co., 81 Mo. App. 471.
ooMuir V. Miller, 82 Iowa, 700; Wright v. Hardy, 22 Wis. 334.
100 Texas & P. Ry. Co. V. Moore, 8 Tex. Civ. App. 289 ; McFall v.
McKeesport & Y. Ice Co., 123 Pa. 253; Com. v. Ruddle, 142 Pa. 144;
Hauk v. Brownell, 120 111. 161; Wintz v. Morrison, 17 Tex. 372; Penn-
sylvania Mining Co. v. Brady, 16 Mich. 332; Lange v. Perley, 47 Mich.
352; Bonner v. Green, 6 Tex. Civ. App. 100; Seligman v. Ten Eyck's
Estate, 49 Mich. 109; Richardson v. Coddington, 45 llich. 338; Town-
ship of Medina v. Perkins, 48 Mich. 70; Hunt v. Supreme Council,
'O. C. F., 64 Mich. 671; Chadwlck v. Butler, 28 Mich. 349; Gibbons
V. Wisconsin Valley R. Co., 62 Wis. 546; Marks v. Robinson, 82 Ala.
69; White v. Stillman, 25 N. Y. 541; Goodman v. Siliionds, 20 How.
(TJ. S.) 359. Bellefontaine Ry. Co. v. Snyder, 24 Ohio St. 670, where
it was held not improper to refuse instructions assuming the exist-
ence of material facts in issue, although they were clearly proven by
the evidence.
101 Wintz V. Morrison, 17 Tex. 372; Township of Medina v. Per-
kins, 48 Mich. 70.
(85)
^ 37 INSTRUCTIONS TO JURIES. [Ch. 3
the certain fact."^"^ So, it has 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.'"* On such a state
of proof, a charge which in effect tells the jury that it is
competent for them to find either way — ^for or against the
existence of the fact so proved — assumes that there is evi-
dence in the case tending as well to disprove such fact as to
prove it.-"**
Where an injury is of such a nature that pain and anguish
necessarily follow its infliction, an instruction may assume
that there was such pain and mental anguish.**"' If an in-
struction assumes the existence of facts, it will be presumed
correct on appeal, if the record shows no conflict in the evi-
dence as to the fact assumed.'"* Where the fact depends
upon inferences to be drawn 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 infer-
ences shall be drawn.'"''' So, where the credibility of wit-
nesses is involved, the court should not take the question from
the jury by assuming the fact in the instructions.'"* The
loawintz v. Morrison, 17 Tex. 387. See, also. State v. Tettaton,
159 Mo. 354.
i»a Gavigan v. Evans, 45 Mich. 597; Druse v. Wheeler, 26 Mich.
189; Douglass v. Geiler, 32 Kan. 499; Grossman v. Lurman, 57 App.
Div. (N. Y.) 393.
104 Druse v. Wheeler, 26 Mich. 189.
105 Dunn v. Northeast Electric Ky. Co., 81 Mo. App. 42.
100 People V. Lee Sare Bo, 72 Cal. 623 ; Patchell v. Jaqua, 6 Ind.
App. 70.
107 SchuIz V. Schulz, 113 Mich. 502. But it is not error for the
court to assume, in an instruction, the existence of a collateral fact,
established by uncontradicted evidence, which tends to prove one
of the constituent elements of a crime. Welsh v. State, 60 Neb. 101.
108 Saar v. Fuller, 71 Iowa, 427. See, also, ante, §§ 3-5, "Questions of
Law and Fact." An instruction assuming the existence of a ma-
(86)
Cb. 3] ASSUMPTION OF FACTS. § 37
mere fact that the evidence tending to prove a fact is un-
contradicted will not always justify the court in assuming tho
existence of such fact.*"® A fact that must he proved affirma-
tively is not established by the absence of evidence to the
contrary.^** No harm is done by submitting undisputed
facts to the jury."^
terlal fact, though hased upon the uncontradicted testimony of tho
plaintiff, is erroneous, since the credibility of an interested witness
Is for the jury. Turner v. Grobe (Tex. Civ. App.) 59 S. W. 583.
"•People V. Webster, 111 Cal. 381; Jonas v. Field, 83 Ala. 449;
Charleston Ins. & Trust Co. v. Corner, 2 Gill (Md.) 411; Byera v.
Wallace, 87 Tex. 503; Rhodes v. Lowry, 54 Ala. 4; Saar v. Fuller,
71 Iowa, 427; Merchants' Exchange Nat. Bank v. Wallach, 20 Misc.
Rep. (N. Y.) 809. This principle was well Illustrated in the fol-
lowing case: On a prosecution for rape, the testimony of the prose-
cuting witness that she was under the age of consent was uncontra-
dicted. The refusal of the trial judge to assume that she was un-
der the age of consent in his Instructions 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 testi-
mony 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. In another case, where only one person testi-
fied to the value of certain property, it was held that it could not be
assumed that his estimate was correct, though bis testimony was un-
contradicted. American Oak Extract Co. v. Ryan, 112 Ala. 337.
"•Byers v. Wallace, 87 Tex. 503.
"1 Atchison, T. & B. F. Ry. Co. v, Cunifte (Tex. Civ. App.) 57 S.
W. 692,
(87)
CHAPTER IV
CHARGING WITH RESPECT TO MATTERS OF FACT, OB
COMMENTING ON WEIGHT OF EVIDENCE.
§ 38. Jurisdictions Where Practice Permissible.
89. Same — Rule in Michigan and New Hampshire.
40- Same — Federal Practice as Affected by State Practice.
41. Same — How Strong an Expression of Opinion is Permissi-
ble.
42. Same — Necessity of Expressing Opinion.
43. Same — Necessity of Instructing that Opinion is Merely Ad-
visory.
44. Same — Effect of Erroneous Opinion.
45. Same — When Expression of Opinion is Ground for Reversal.
46. Jurisdictions Where Practice is Prohibited.
47. Same — Instructions Held to Violate Prohibition.
48. Same — Instructions Held not to Violate Prohibition.
49. Same — Curing Error by Other Instructions.
50. Same — ^Violation of Rule Otherwise than by Express In-
structions.
61. Same — Indicating Opinion by Questions Asked the Jury.
§ 38. Jurisdictions where practice permissible.
In the majority of the states, statutes or constitutional pro-
visions exist expressly prohibiting the court from charging
juries with respect to matters of fact, or commenting on the
evidence.^ But at common law, and in jurisdictions where
no such statutory or constitutional provisions exist, it is
proper and usual for the trial judge, in chai'ging the jury,
to comment on the evidence, and state what it does or does
not conduce to prove, or to express his opinion as to the
weight of the evidence, or any part of it,^ but, in so doing,
1 See post, § 55 et seq.
2 Hale, Hist. Com. Law, 147; Fisher's Case, 1 Cobbett, State Tr.
(88)
Ch. 4] CHARGING ON FACTS. § 38
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
395; Solarte v. Melville, 7 Barn. & C. 435; Petty v. Anderson, 3 Bing.
170; Belcher v. Prlttie, 4 Moore & S. 295, 10 Bing. 408; Foster v.
Steele, 5 Scott, 28; Attorney General v. Good, 1 McClel. & Y. 285;
Pennell v. Dawson, 18 C. B. 355; Davidson v. Stanley, 2 Man. & G.
721; Calmady v. Rowe, 6 C. B. 892; Colledge's Case, 8 Cobbett, State
Tr. 550; Sutton v. Sadler, 3 C. B. (N. S.) 87; Vanarsdale v. Hax (C.
C. A.) 107 Fed. 878 ; Aerheart v. St. Louis, I. M. & S. Ry. Co. (C. C.
A.) 99 Fed. 907; Illinois Cent. R. Co. v. Davidson (C. C. A.) 76 Fed.
617; Chicago, R. I. & P. Ry. Co. v. Stahley (C. C. A.) 62 Fed. 363;
Mitchell V. Harmony, 13 How. (tT. S.) 130; Consequa v. Willings, 1
Pet. C. C. 225, Fed. Cas. No. 3,128; Simmons v. United States, 142 XJ.
S. 148; Rucker v. Wheeler, 127 U. S. 91; Watts v. Southern Bell Tele-
phone & Telegraph Co., 66 Fed. 453; St. Louis, I. M. & S. Ry. Co. v. Phil-
lips (C. C. A.) 66 Fed. 35; Aetna Life Ins. Co. v. Ward, 140 U. S. 76;
Pinkerton v. Ledoux, 129 U. S. 346; McLanahan v. Universal Ins. Co., 1
Pet. (U.S.) 182; Russell v. Ely, 2 Black (U.S.) 575; Foley v. Lough-
ran, 60 N. J. Law, 464; Smith v. State, 41 N. J. Law, 374; Bngle v. State
50 N. J. Law, 272; Castner v. Sliker, 33 N. J. Law, 507; Hager v. Hager,
,38 Barb. (N.Y.) 92; Allis v. Leonard, 58 N. Y. 288; Massoth v. Delaware
& H. Canal Co., 64 N. Y. 524; Althorf v. Wolfe, 2 Hilt. 344, 22 N. Y. 355;
Graham v. Cammann, 2 Caines (N.Y.) 168; Bruce v. Westervelt, 2 E.
D Smith (N. Y.) 440; Hurlburt v. Hurlburt, 128 N. Y. 420; Griffith v.
Utica & M. R. Co., 63 Hun (N. Y.) 626; Durkee v. Marshall, 7 Wend.
(N. Y.) 312; Hunt v. Bennett, 4 B. D. Smith (N. Y.) 647; Jackson v.
Packard, 6 Wend. (N. Y.) 415; Stephens v. People, 4 Parker, Cr. R.
(N. Y.) 396; Ames v. Cannon River Mfg. Co., 27 Minn. 248; First Nat.
Bank of Decorah v. Holan, 63 Minn. 525; Com. v. Zuern, 16 Pa. Super.
Ct. 588; Dldier v. Pennsylvania Co., 146 Pa. 582; FoUmer v. McGin-
ley, 146 Pa. 517; Shoolln v. Com., 106 Pa. 369; Williams v. Carr, 1
Rawle (Pa.) 420; Speer v. Rowley, 32 Leg. Int. (Pa.) 100; Burr v.
Sim, 4 Whart. (Pa.) 150; Cathcart v. Com., 37 Pa. 108; Bitner v.
Bitner, 65 Pa. 347; Hamet v. Dundass, 4 Pa. 178; Porter v. Seller,
23 Pa. 424; Springer v. Stiver, 16 Pa. Super. Ct. 184; Long v. Ram-
say, 1 Serg. & R. (Pa.) 72; Lohman v. McManus, 23 Pa. Co. Ct. R.
497, 9 Pa. Dist R. 223; Sailor v. Hertzogg, 10 Pa. 296; Com. v. War-
ner, 13 Pa. Super. Ct. 461; Leibig v. Steiner, 94 Pa. 466; Com. v.
Winkelman, 12 Pa. Super. Ct. 497; Setchel v. Keigwin, 57 Conn. 478;
Comstock's Appeal, 55 Conn. 214; First Baptist Church v. Rouse, 21
(89)
j 38 INSTRUCTIONS TO JURIES. [Ch. 4
expression of opinion must stop short of a binding direc-
tion/ — and they must be impressed with the feeling that the
responsibility of their verdict rests on them alone, and not
Conn. 167; Occum Co. v. A. & W. Sprague Mfg. Co., 34 Conn. 538;
State V. Lynott, 5 R. I. 295; Sawyer v. Ehaley, 33 Vt. 69; Yale v.
Seely, 15 Vt. 281; Stevens v. Talcott, 11 Vt. 25; Mlssisquoi Bank v.
Evarts, 45 Vt. 296; Pettingill v. Elkins, 50 Vt. 431; Rowell v. Fuller,
59 Vt. 688; People v. Lee, 2 Utah, 441; Goldsworthy v. Town of Lin-
den, 75 Wis. 24; Ketchuni v. Ebert, 33 Wis. 611; Massuere v. Dickens,
70 Wis. 91 ; Benedict v. State, 14 Wis. 459 ; Abram's Lessee v. Will,
6 Ohio, 164; Bossert v. State, Wright (Ohio) 113. Where the credi-
bility of the plaintiff was important, it is proper for the trial judge
to call the attention of the jury to inconsistencies in his testimony.
Brlnton v. Walker, 15 Pa. Super. Ct. 449.
» Stevens v. Talcott, 11 Vt 25; State v. Lynott, 5 R, I. 295; Sawyer
V. Phaley, 33 Vt. 69; Aerheart v. St. Louis, 1. M. & S. Ry. Co. (C. C.
A.) 99 Fed. 907; Illinois Cent. R. Co. v. Davidson (C. C. A.) 76 Fed.
517; Herrick v. Quigley, 101 Fed. 187, 41 C. C. A. 294; Foley v. Lough-
ran, 60 N. J. Law, 464; Vanarsdale v. Hax (C. C. A.) 107 Fed. 878;
Chicago, R. L & P. Ry. Co. v. Stahley (C. C. A.) 62 Fed. 363; Rucker
V. Wheeler, 127 U. S. 91; Watts v. Southern Bell Telephone & Tele-
graph Co., 66 Fed. 453; Atchison, T. & S. F. R. Co. v. Howard (C. C.
A.) 49 Fed. 206; Sorenson v. Northern Pac- R. Co., 36 Fed. 166; East-
em Transportation Line v. Hope, 95 U. S. 297; Haines v. McLaugh-
lin, 135 U. S. 584; Garrard v. Reynolds' Lessee, 4 How. (U. 8.) 123;
Dean v. Hewit, 5 Wend. (N. Y.) 257; Nolton v. Moses, 3 Barb. (N. Y.)
31; Bulkeley v. Keteltas, 4 Sandf. (N. Y.) 450; Massuere v. Dickens,
70 Wis. 91; Ketchum v. Ebert, 33 Wis. 611; Fisher's Case, 1 Cobbett.
State Tr. 395; Brombridge v. Osborne, 1 Starkie, 374; Pennell v.
Dawson, 18 C. B. 355; Belcher v. Prittie, 4 Moore & S. 295; Foster
V. Steele, 5 Scott, 28; Comstock's Appeal. 55 Conn. 214; Com. v.
Zuern, 16 Pa. Super. Ct. 588; Cathcart v. Com., 37 Pa. 108; Com. v.
Winkelman, 12 Pa. Super. Ct. 497; Pool v. White, 175 Pa. 459; Com.
V. Warner, 13 Pa. Super. Ct. 461; First Nat Bank of Decorah v.
Holan, 63 Minn. 525; Fowler v. Colton, 1 Pin. (Wis.) 331; Springer
V. Stiver, 16 Pa. Super. Ct 184. See, also, post § 50, "How Strong
an Opinion may be Expressed." Where a railroad company is sued
for injuries to plaintiff inflicted 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 seemed to be that of a
"manly man." Simmons v. Pennsylvania R. Co. (Pa.) 48 Atl. 1070.
(90)
Ch. 4] CHARGING ON FACTS. § 39
on the court.* If the court states his opinion to the jury on
the facts, it should be stated as opinion merely, and not as a
positive 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.® "The line which sepa-
rates 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 understand that what is said as to the facts
is only advisory, and in nowise intended to fetter the exer-
cise finally of their own independent judgment. Within
these limitations, it is the right and duty of the court to aid
them by recalling the testimony to their recollection, by col-
lating its details, by suggesting grounds of preference where
there is contradiction, by directing their attention to the
most important facts, by eliminating the true points of in-
quiry, by resolving the evidence, however complicated, into
its simplest elements, and by showing the bearing of its sev-
eral parts, and their combined effect, stripped of every con-
sideration which might otherwise mislead or confuse them.
* * * Constituted as juries are, it is frequently impos-
sible for them to discharge their function wisely and well
without this aid."* The judge is the best adviser the jury
can have.^
S 39. Same — ^Rule in Michigan and New Hampshire.
In Mibhigan there is some conflict of authority as to
* Holder v. State, 5 Ga. 444.
"New York Firemen Ins. Co. v. Walden, 12 Johns. (N. Y.) 519.
• Nudd V. Burrows, 91 U. S. 439.
I Com. V. Zuem, 16 Pa. Super. Ct. 588.
(oiy
g 39 , INSTRUCTIONS TO JURIES. [Gh. 4
whether the trial court has a right to express an opinion on
the weight of the evidence. In the earliest decision on this
question, it was held that the parties had no right to demand
instructions intimating an opinion on the evidence. As the
trial court, even where he has the right to express an opinion
on the evidence, cannot be required to do so, this decision is
of little authority to sustain the position that the court has
not the right to express an opinion if he chooses to do so.*
In the next decision on this question there is a dictum to the
effect that the judge may express an opinion as to the credi-
bility of witnesses if he expressly direct the jury to decide
the question for themselves, without reference to his views.*
This decision was followed by another, upholding a refusal
to instruct as to what weight should be given to the evidence,
on the ground that such an instruction would constitute a
usurpation of the province of the jury.*" 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 degree be subordi-
nate to the judge's opinion of the facts.** The next three
decisions hold that it is erroneous for the court to express
any opinion on the weight of the evidence or the credibility
of witnesses.** The latest decision seems to recognize the
correctness of what was said in the first, but says that the
rule must not be extended to cases where the instruction
implies a duty on the part of the jury to yield their judg-
ment to that of the judge.*^ This, it is believed, is an ex-
• Perrott v. Shearer, 17 Mich. 48.
» Sheahan v. Barry, 27 Mich. 217.
10 Blackwood v. Brown, 32 Mich. 104.
11 Mawich V. Elsey, 47 Mich. 10.
i» People V. Lyons, 49 Mich. 78; Wessels v. Beeman, 87 Mich.
481; Letts v. Letts, 91 Mich. 596.
13 Blumeno v. Grand Rapids & I. R. Co., 101 Mich. S25.
(92)
Ch. 4]. CHARGING ON FACTS. § 39
haustive collection of the MieMgan eases, and the weight of
authority seems to he against the trial court's right to ex-
press an opinion as to the credibility of the witnesses or the
weight of the evidence.
In l^Tew Hampshire it is said in some of the earlier de-
cisions that it is not the ordinary practice for the court to
express an opinion in regard to the weight of the evidence.-'*
In another early decision it appeared that the trial judge
had expressed an opinion on the evidence which was clearly
favorable to the party complaining, and the judgment was
affirmed. The reviewing court said: "If the verdict had
been for the plaintiff, and the exception were by the de-
fendant, it would deserve consideration whether this bear-
ing upon the motives of the party who caused the publica-
tion might not have had its effect upon the verdict."^ ^ So,
in a late decision, the court said that the practice of ex-
pressing an opinion on the weight of the evidence had be-
come obsolete,^* and decisions subsequent to this contain
expressions which seem to bear out this view.-''' It has
nevertheless been held that it is not irregular for the trial
judge to make 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.'^ Accordingly, 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 circum-
stances.*®
"Haven v. Richardson, 5 N. H. 126; Cook v. Bro-wn, 34 N. H. 460.
10 McDougall V. Shirley, 18 N. H. 109.
"State V. Pilie, 49 N. H. 399, 416.
17 See Aldrich v. Wright, 53 N. H. 398; Orr v. Quimby, 54 N. H.
632.
18 Cook V. Bro-wn, 34 N. H. 460; Flanders v. Colby, 28 N. H. 34;
Patterson v. Colebrook, 9 Fost. (N. H.) 94.
"Flanders v. Colby, 28 N. H. 34.
(93)
g 40 INSTRUCTIONS TO JURIES. , [Ch. 4
8 40. Same — Federal practice as affected by state practice.
The right of judges of the federal courts to comment on
the evidence, and express opinions as to matters of fact in
causes tried before them, is not affected by statutes of states
in which they are holding court, forbidding this practice.
These statutes can in no wise control the court's discretion
in this regard.^" In construing the act of congress declar-
ing "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,"^^ 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 per-
sonal administration 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 per-
sonal conduct and administration of the judge in the dis-
charge of his separate functions is, in our judgment, neither
practice, pleading, nor a form nor mode of proceeding, with-
in the meaning of those terms as found in the context."^^
So,' 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, prohibiting the practice. Organic provi-
sions have no more effect on this right than statutes.^*
2oNudd V. Burrows, 91 U. S. 440; Vicksburg & M. R. Co. v. Put-
nam, 118 v. S. 545. See, also, Indianapolis &. St. L. R. Co. v. Horst,
SZ V. S. 291.
21 Act Cong. June 1, 1872 (17 St. at Large, p. 197, § 5).
22Nudd V. Burrows, 91 U. S. 441.
23 St. Louis, I. M. & S. Ry. Co. v. Vlckers, 122 U. S. 360.
(94) •
Ch. 4] CHARGING ON FACTS. § 41
S 41. Same — ^How strong an expression of opinion is permis-
sible.
There is no fixed rule determining how strong an expres-
sion of opinion the court may make in regard to the truth
or weight of the testimony,^* and very strong expressions of
opinion have been upheld, the view being taken tha1f con-
siderable latitude must be left with the trial court in com-
menting on the evidence.^^ Probably the only limitation on
this right is that the court should not give a binding in-
struction to find one way or the other ;^* or a direction so
2* State V. Roger, 7 La. Ann. 382.
2» Doyle V. Boston & A. R. Co. (C. C. A.) 82 Fed. 869; Com. v.
Doughty, 139 Pa. 383; Sailor v. Hertzogg, 10 Pa. 296; Fredericks v.
Northern Cent. R. Co., 157 Pa. 103; Johnston v. Com., 85 Pa. 54;
Leibig v. Steiner, 94 Pa. 472; Davidson v. Stanley, 2 Man. & G.
721; Belcher v. Prittie, 4 Moore & S. 295; Poster v. Steele, 5 Scott,
28; Calmady v, Rowe, 6 C. B. 861; Doe d. Strickland v. Strickland,
8 C. B. 743; Duberley v. Gunning, 4 Term R. 651; Sawyer v. Phaley,
33 Vt. 69; Rex v. Burdett, 4 Bam. & Aid. 167. In Benedict v. Ever-
ard, 73 Conn. 157, an instruction was held not prejudicial to the de-
fendant upon an objection that it ridiculed his evidence.
se Pennell v. Dawson, 18 C. B. 355; Massoth v. Delaware & H.
Canal Co., ,64 N. Y. 524; Sailor v. Hertzogg, 10 Pa. 296; Johnston
V. Com., 85 Pa. 54. Compare Burke v. Maxwell's Adm'rs, 81 Pa. 139,
where it was held error for the judge to tell the jury that, if he were
in the jury box, he would find against the plaintifC, even though this
statement was qualified by saying that they are not bound by
his views of the evidence; overruling Rutland Mfg. Co. v. Quin-
lan, 1 Wkly. Notes Cas. (Pa.) 456. An instruction by the court
"that, in his opinion, it was the duty of the jury to convict the de-
fendant," Is misleading, and ground for a new trial. Breese v.
United States (C. C. A.) 108 Fed. 804, reversing 106 Fed. 680. Com-
pare Johnston v. Com., 85 Pa. 60. An Instruction that, if the jury
find on the issues In favor of plaintiff, "the court will accept a rea-
sonable and fair verdict as a proper settlement of the controversy
(95)
g 42 INSTRUCTIONS TO JURIES. [Ch. 4
positive as to prevent them from exercising tlieir own judg-
ment.^'^ Error cannot be assigned, though, the opinion of
the judge may have great influence upon the verdict,** and
is unfavorable to the party complaining.*®
§ 42. • Same — ^Necessity of expressing opinion.
Even in jurisdictions where the court is permitted to com-
ment on the evidence, and express an opinion on the weight
and effect thereof, it is under no obligation to do so, even
on request.*" Whether the court shall express an opinion
to the jury on the weight of the evidence is always a matter
between the parties," while objectionable in that the jury have noth-
ing 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. Herrick
V. Quigley, 41 C. C. A. 294, 101 Fed. 187.
27 New York Firemen Ins. Co. v. Walden, 12 Johns. (N. Y.) 513;
People V. Quin, 1 Parker, Cr. Cas. (N. Y.) 340.
28 Sawyer v. Phaley, 33 Vt. 69.
29Hurlburt v. Hurlburt, 128 N. Y. 420; FoUmer v. McGinley, 146
Pa. 517.
so Smith V. Carrlngton, 4 Cranch (U. S.) 62; United States v.
Burnham, 1 Mason, 57, Fed. Cas. No. 14,690; Crane v. Morris, 6
Pet. (U. S.) 598; Consequav. Willings, Pet. C. C. 225, Fed. Cas. No.
3,128; Burden v. Denig, 92 U. S. 716; Marine Ins. Co. of Alexandria
V. Young, 5 Cranch (U. S.) 187; Van Ness v. Pacard, 2 Pet. (U. S.)
137; Brickill v. City of Baltimore (C. C. A.) 60 Fed. 98; Cohen v.
Pemberton, 53 Conn. 235; Shank v. State, 25 Ind. 208; George v.
Stubbs, 26 Me. 243; Bruch v. Carter, 32 N. J. Law, 565; Burling v.
Gunther, 12 Daly (N. Y.) 6; Bryce v. Meyer (N. Y.) Daily Reg., Sept.
18, 1883; Moore v. Meacham, 10 N. Y. 207; Clark v. Partridge, 2 Pa.
13; Thomas v. Thomas, 21 Pa. 315; Lorain v. Hall, 33 Pa. 270; Lin-
derman v. Sheldon, 7 Phila. (Pa.) 168; Philadelphia & T. R. Co. v.
Hagan, 47 Pa. 244; Haldeman v. Martin, 10 Pa. 369; Brainard y.
Burton, 5 Vt. 97; Vincent v. Stinehour, 7 Vt. 62; Stevens v. Talcott,
11 Vt. 25; Doon v. Ravey, 49 Vt. 293.
(96)
Ch. 4] CHARGING ON FACTS. §34
of discretion, and the court may exercise it or not, accord-
ing as it deems best.'^
I 43. Same — Necessity of instructing that opinion is merely
advisory.
In order to preserve a just balance' between the distinct
powers of the court and the jury, and that the parties may
enjoy an unimpaired vigor, their constitutional right 'of
having the law decided by the court, and of having the fact
decided by the jury, 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.^^ The question then arises, how shall
the charge be drafted in order that the jury shall be suffi-
ciently impressed with this distinction? It is customary,^^
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 opin-
ion 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.**
81 Stevens v. Talcott, 11 Vt. 25; Bruch v. Carter, 32 N. J. Law,
565; Breese v. United States (C. C. A.) 106 Fed. 680.
32 New York Firemen Ins. Co. v. Walden, 12 Johns. (N. Y.) 513.
asRucker v. Wheeler, 127 TJ. S. 85; Haines v. McLaughlin, 135 U.
S. 584; Illinois Cent. R. Co. V. Davidson (C. C. A.) 76 Fed. 517;
Sorenson v. Northern Pac. R. Co., 36 Fed. 166 ; Garrard v. Reynolds'
Lessee, 4 How. (U. S.) 123; Sawyer v. Phaley, 33 Vt. 69; Sindram
V. People, 88 N. Y. 203; Hoffman v. New York Cent. & H. R. R. Co.
46 N. Y. Super. Ct. 526; Yale v. Seely, 15 Vt. 221; Bonner v. Hei^
rick, 99 Pa. 225.
34 Anderson v. Avis (C. C. A.) 62 Fed. 227. Where the court In-
dicates to the jury his view of the facts, he should also charge the
(97)
7 — ^Ins. to Juries.
8 44, INSTRUCTIONS TO JURIES. [Cb. 4
ISTevertlieless, if the language of the charge is such that, 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.^' 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.««
5 44. Same — ^Effect of erroneous opinion.
If the charge is such that the jury clearly understand
that they are to use their own judgment in determining the
facts, and are in no wise bound by the opinion of the court
on the facts, there is no ground for reversal, even though
the opinion expressed by the court is erroneous.^ ^ Even if
entire accuracy in the statement of facts may not be obtained,
yet if the case is left fully and clearly to the jury, under
instructions not calculated to mislead, there is no available
error.^*
jury that they are the exclusive judges of the facts, and are not
bound by the court's viewSi Vanarsdale v. Hax (C. C. A.) 107 Fed.
878.
36 Hansen v. Boyd, 161 U. S. 405; First Baptist Church v. Rouse,
21 Conn. 166; Hunt v. Bennett, 4 E. D. Smith (N. Y.) 647; Ketchum
V. Bbert, 33 Wis. 611.
38 Ames V. Cannon River Mfg. Co., 27 Minn. 245.
37 Long V. Ramsay, 1 Serg. & R. (Pa.) 72; Oyster v. Longnecker,
16 Pa. 269; Knapp v. Griffln, 140 Pa. 604. Cf. Glapp v. Bromagham.
9 Cow. (N. Y.) 530.
ssLeibig V. Steiner, 94 Pa. 472; Repsher v. Wattson, 17 Pa. 365;
Bltner v. Bitner, 65 Pa. 347.
(98)
Ch. 4] CHARGING ON FACTS. § 46
S 45i Same. — When expression of opinion is ground for re-
versal.
If the expression of opinion on the facts amounts to a
binding charge, this will usually be a sufficient ground for
reversal;^® and the cause will also be reversed where the
court's remarks are such as are likely to mislead.*" So,
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.*'
§ 46. Jurisdictions where practice is prohibited.
In by far the greater number of states of the Union
(twenty-seven), the trial courts are not permitted to com-
ment on the evidence, or express an opinion as to its weight,*^
3»Burdlck v. People, 58 Baib. (N. Y.) 51; Moran v. McClearns, 4
Lans. (N. Y.) 288; Schanck v. Morris, 2 Sweeny (N. Y.) 464; Sailor
V. Hertzogg, 10 Pa. 296. See, also, ante, §§ 47, 50.
4» Connelly v. Walker, 45 Pa. 449; Burke v. Maxwell's Adm'rs, 81
Pa. 139. Generally, as as misleading instructions, see post, §§ 71-78.
4iHeydrick v. Hutchinson, 165 Pa. 208.
42 Alabama: Gafford v. Slate, 125 Ala. 1; Tubb v. Madding;
Minor, 130; Boyd v. Mclvor, 11 Ala. 822; Higginbotham v. Higgin-
botham, 106 Ala. 314; Steele v. State, 83 Ala. 20.
-Arkansas: Cameron v. Vandergriff, 53 Ark. 381; State v. Roper,
8 Ark. 491; Shinn v. Tucker, 37 Ark. 580; Keith v. State, 49 Ark. 439.
California: People v. VereneseneckockockhofE, 129 Cal. 497; Peo-
ple V. Cowgill, 93 Cal. 596; Miller v. Stewart, 24 Cal. 504; People
V. Barry, 31 Cal. 357; Baltersby v. Abbott, 9 Cal. 565; People v.
Grimes, 132 Cal. 30; People v. O'Brien, 130 Cal. 1.
Florida: Baker v. Chatfield, 23 Fla. 540; Ferguson v. Porter, 3
Fla. 27; Williams v. Dickenson, 28 Fla. 90; Adams v. State, 28 Fla.
511.
Georgia: Bourquin v. Bourquin, 110 Ga. 440; Ryder v. State, 100
Ga. 528; De Saulles v. Leake, 56 Ga. 365; Jessup v. Gragg, 12 Ga.
261; Phillips v. Williams, 39 Ga. 597; Florida, C. & P. R. Co. v.
Lucas, 110 Ga. 121.
(99)
g 45 INSTRUCTIONS TO JURIES. [Ch. 4
STicli practice being expressly prohibited by statutory or con-
stitutional provisions.** In tbese jurisdictions, a judge must
Illinois: Rice & Bullen Malting Co. v. International Bank, 185
111. 422, affirming 86 111. App. 136; Humphreys v. Collier, 1 111. 297;
New York, 0. & St. L. R. Co. v. Blumenthal, 160 111. 40; Frame ▼.
Badger, 79 111. 441; Lake Shore & M. S. Ry. Co. v. Taylor, 46 111. App.
506; Chicago & A. R. Co. v. Robinson, 106 111. 142; Clark v. Smith,
87 111. App. 409.
Indiana: Chamness v. Chamness, 53 Ind. 301; Ohio & M. Ry. Co.
r. Pearcy, 128 Ind. 197; Wood v. Deutchman, 75 Ind. 148; Fassnacht
V. Erasing Gagen Co., 18 Ind. App. 80; Fulwider v. Ingels, 87 Ind. 414.
Iowa: Carroll v. Chicago, St. P., M. & O. Ry. Co. (Iowa) 84 N.
W. 1035; Nimon v. Reed, 79 Iowa, 524; Leiber v. Chicago, M. & St.
P. Ry. Co., 84 Iowa, 97; State v. Borland, 103 Iowa, 168; Houston v.
State, 4 G. Greene, 437; State v. Carter (Iowa) 83 N. W. 715.
Kansas: State v. Potter, 16 Kan. 80; Cavender v. Roberson, 33
Kan. 627; Lorie v. Adams, 51 Kan. 692; City of Junction City v.
Blades, 1 Kan. App. 85.
Kentucky: Carter's Bx'rs v. Carter, 10 B. Mon. 827; Brady v.
Com., 11 Bush, 285; Hurt v. Miller, 3 A. K. Ma|rsh. 337.
Louisiana: Riviere v. McCormlck, 14 La. Ann. 139; State v. Hahn.
38 La. Ann. 169; State v. Jackson, 35 La. Ann. 769; State v. Smith,
11 La. Ann. 633. Prior to 1852, at which time a statute prohibiting
trial courts from charging as to matters of fact was enacted, an in-
struction on the weight of the evidence was permissible. See State
V. Green, 7 La. Ann. 518; State v. Roger, 7 La. Ann. 382.
Maine: State v. Benner, 64 Me. 267. This decision is under a
comparatively recent statute. The practice of charging on the
weight of the evidence was formerly permissible. Stephenson v.
Thayer, 63 Me. 143; State v. Reed, 62 Me. 129; Gilbert v. Wood-
bury, 22 Me. 246; Hayden v. Bartlett, 35 Me. 203.
Maryland: Mason v. Poulson, 40 Md. 355; Chipman v. Stans-
bury, 16 Md. 154; Miller v. Miller, 41 Md. 623.
Massachusetts: Com. v. Briant, 142 Mass. 463; Com. v. Larra-
bee, 99 Mass. 413; Com. v. Foran, 110 Mass. 179. These decisions
are under Gen. St. Mass. o. 115, § 5. Prior to the enactment of that
' statute it was customary in this state to comment on the evidence
and charge on the weight thereof. Com. v. Child, 10 Pick. 252;
43 See the codes and statutes of the various states, and the cases
cited in the preceding note.
(100)
Ch. 4 J CHARGING ON FACTS. § 46\
carefully avoid expressing an opinion on the facts, leaving it
to the jury to draw their own conclusions, entirely unbiased
Buckmlnster v. Perry, 4 Mass. 694; Mansfield v. Corbln, 4 Cush. 213;
Davis V. Jenney, 1 M^te. 221; Eddy v. Gray, 4 Allen, 435.
Mississippi: Whitney v. Cook, 53 Miss. 551; Daniel v. Daniel, 4
So. 95; Wesley v. State, 37 Miss. 327; Kearney v. State, 68 Miss.
233.
Missouri: Granby Mining & Smelting Co. v. Davis, 156 Mo. 422;
Hayden v. Parsons, 70 Mo. App. 493; Chouquette v. Barada, 28 Mo.
491; State v. Hundley, 46 Mo. 414; Labeaume v. Dodler, 1 Mo. 618;
Milligan v. Chicago, B, & Q. R. Co., 79 Mo. App. 393; State v. Smith,
53 Mo. 267.
Montana: State v. Mahoney, 24 Mont. 281; Knowles v. Nixon, 17
Mont. 473; State v. Sullivan, 9 Mont. 174.
Nebraska: Smith v. Meyers, 52 Neb. 70; Village of Culbertson v.
Holliday, 50 Neb. 229; Murphey v. Virgin, 47 Neb. 692.
Nevada: State v. Ah Tong, 7 Nev. 148; State v. Tlckel, 13 Nev.
502.
North Carolina: State v. Edwards, 126 N. C. 1051; Reed v.
Shenck, 13 N. C. 415; Weisenfleld v. McLean, 96 N. C. 248; Wells
V. Clements, 48 N. C. 168; State v. Brewer, 98 N. C. 607.
North Dakota: Territory v. O'Hare, 1 N. D. 30.
Oklahoma: Kirk v. Territory, 10 Okla. 46.
Oregon: Meyer v. Thompson, 16 Or. 194; State v. Daly, 16 Or. 240.
South Carolina: State v. Whittle, 59 S. C. 297; Woody v. Dean,
24 S. C. 504; State v. Godfrey, 60 S. C. 498; State v. Smalls, 24 S.
C. 591; Poison v. Ingram, 22 S. C. 545; State v. Caddon, 30 S. C.
609. These cases were decided since Const. S. C. 1868, art. 4, §
26, went Into effect. Prior to this time a charge on the weight of
the evidence was permissible. See Verdier v. Verdier, 8 Rich. Law,
135; State v. Smith, 12 Rich. Law, 430; Devlin v. Klllcrease, 2 Mc-
Mul. 428; State v. Bennet, 2 Treadw. Const. 692.
Tennessee: Earp v. Bdgington (Tenn.) 64 S. W. 40; Citizens'
St. Ry. Co. V. Burke, 98 Tenn. 650; Fitzpatrick v. Fain, 3 Cold. 15;
Roper V. Stone, Cooke, 499 ; S. B. Jones & Son v. Cherokee Iron Co.,
14 Lea, 157.
Texas: Meadows v. Truesdale (Tex. Civ. App.) 56 S. W. 932; Bar-
ton V. Stroud-Gibson Grocer Co. (Tex. Civ. App.) 40 S. W. 1050;
Butler V. State, 3 Tex. App. 48 ; Kildow v. Irick (Tex. Civ. App.) 33
S. W. 315; Pharr v. State, 7 Tex. App. 472; Stooksbury v. Swan, 85
Tex. 563; Johnson Vj Brown, 51 Tex. 65; Texas & P. Ry. Co. v. Dur-
(101)
§ 47 INSTRUCTIONS TO JURIES. [Ch. 4
by any impression which the testimony may make upon
the mind of the judge. He must not in any way indicate
his opinion of the facts to the jury.** The charge is per-
fectly unexceptionable only when the judge confines him-
self to the duty of setting forth the law applicable to the
case, without either expressing or intimating any opinion as
to the weight of the evidence, or the credibility of statements
made by parties or other witnesses.*^ The court cannot
legally indicate his opinion, either expressly or impliedly,
intentionally or otherwise, as to the credibility of the wit-
nesses, or as to the truth of any fact in issue, and the sub-
ject of the evidence. The whole matter of finding the facts
of the case must be left entirely to the jury, without sug-
gestions or leadings by the court.**
5 47. Same — ^Instructions held to violate proMbition.
Counsel in drafting requests for instructions, and courts
in giving them, are prone to violate the rule against com-
menting on the evidence, or expressing an opinion upon its
weight. The cases are almost innumerable in which this
rett (Tex. Civ. App.) 63 S. W. 904; City of Dallas v. Beeman, 23 Tex.
Civ. App. 315; Galveston, H. & S. A. Ry. Co. v. English (Tex. Civ.
App.) 59 S. W. 626; Fulcher v. White (Tex. Civ. App.) 59 S. W.
628; City of San Antonio v. Porter (Tex. Civ. App.) 59 S. W. 922.
Virginia: Ross v. Gill, 1 Wash. 88; Tyler v. Chesapeake & O. R.
Co., 88 Va. 389; McDowell's Ex'r v. Crawford, 11 Grat. 378; McKin-
ley V. Ensell, 2 Grat. 333; McRae v. Scott, 4 Rand. 463.
Washington: Leonard v. Territory, 2 Wash. T. 381; Bardwell v.
Ziegler, 3 Wash. 34.
West Virginia: State v. Hurst, 11 W. Va. 75; State v. Greer, 22
W. Va. 801.
Wisconsin: Hempton v. State, 86 N. W. 596. See, also, cases
cited to more specific propositions in the succeeding sections of this
article.
** State V. Addy, 28 S. C. 4.
45 Ross V. State, 29 Tex. 500.
46 State V. Williams, 31 S. G. 238.
(102)
Ch. 4] Oharging on facts. § 47
question has been passed upon. The error is usually com-
mitted through inadvertence, and most often arises as a ques-
tion of construction of the' language used in the instructions.
For this reason it has been thought proper to set out the sub-
stance of a large number of instructions which have been
condemned as invading the province of the jury. These in-
structions are so diverse in their nature as to render any
classification impossible, and the reader will therefore par-
don the unavoidable absence of catch lines for a consider-
able body of text.
It is improper for the court to announce to the jury what
is the better evidence in the case, or what the jury may so
regard;*'' or to intimate that the jury should give greater
4' Chicago & A. R. Co. v. Robinson, 106 111. 142; State v. Blkins,
63 Mo. 159; Toledo, W. & W. Ry. Co. v. Brooks, 81 111. 245; MlUner
V. Eglln, 64 Ind. 197; Works v. Stevens, 76 Ind. 181. In this last
case, an instruction that, "all other things being eciual, evidence of
witnesses, given in the presence of the court and jury. Is entitled
to greater weight than that of witnesses whose depositions have
been taken and read in evidence," was held erroneous. So, in Mc-
Hard v. Ives, 5 111. App. 400, "an instruction telling the jury that, in
determining what consideration induced the defendant to sign the
note, they are to give greater weight to a letter written by the plain-
tiff to the defendant just after the signing than the memory of de-
fendant at that time," was held erroneous. An instruction that,
though error is sometimes committed from a reliance on circum-
stantial evidence, yet this species of evidence, in the opinion of all
those who are most conversant with the administration of justice, 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, and that even persons professing to
have been eye witnesses of the fact may speak falsely, is obvlous5y
a charge to the jury as to the relative value of direct and circum-
stantial evidence, and is within the prohibition ot the constitution
of the state of California. People v. O'Brien, 130 Ca;i. 1. A party
should not ask for instructions relating to the weight to be glveti
circumstantial evidence introduced by his adversary. Such a re-
quest comes under the general rule that it is dangerous to single out
(103)
g 47 INSTRUCTIONS TO JURIES. [Ch. 4
weight to the testimony of one witness than to that of an-
other;** or to state that evidence offered by one party is
entitled to more weight than that offered by the other ;*' or
to require the jury to give more credit to one class of testi-
mony than another;*" or to instruct that designated testi-
mony is entitled to great weight ;°^ or is weighty and
strong;*^ or to state that designated evidence is weak or
of little value ;*^ or insufficient;** or to instruct that, al-
though parol proof of the verbal admissions of a party often
affords satisfactory evidence, yet, as a general rule, state-
ments of witnesses as to verbal admissions of a party should
be received with great caution, as that kind of evidence is
a particular line of evidence, and to instruct as to its weight. Car-
roll V. Chicago, St. P., M. & 0. Ry. Co. (Iowa) 84 N. W. 1035.
48Bynum v. Southern Pump & Pipe Co., 63 Ala. 462; Delvee v.
Boardman, 20 Iowa, 446, in which an instruction that, if the jury
find the testimony of the plaintiff to be the only positive evidence
in support of material allegations, and that it is contradicted in all
material points by an unimpeached witness, they must find for de-
fendant, was held erroneous.
49 Lyon v. George, 44 Md. 295.
eo Kirk v. Territory, 10 Okla. 46. It Is improper to instruct the
jury that positive testimony is entitled to greater weight than nega-
tive testimony, where the witnesses are equal in credibility and op-
portunity to know the facts, as the weight of such testimony is ex-
clusively for the jury. Milligan v. Chicago, B. & Q. R. Co., 79 Mo.
App. 393. See, also. Metropolitan R. Co. v. Martin, 15 App. D. C.
652.
61 Ryder v. State, 100 Ga. 528; Williams v. Dickenson, 28 Fla. 90;
State V. Hundley, 46 Mo. 414; Smith v. Meyers, 52 Neb. 70; State
V. Gleim, 17 Mont. 17; Steele v. State, 83 Ala. 20; Bourquin v. Bour-
quin, 110 Ga. 440.
02 Cecil V. Johnson, 11 B. Mon. (Ky.) 35 ; Earp v. Edgington
(Tenn.) 64 S. W. 40.
oBMauro v. Piatt, 62 111. 450; Wannack v. City of Macon, 53 Ga.
162; West v. Black, 65 Ga. 647.
54 Johnson v. People, 94 111. 505; Farmers' & Merchants' Bank v.
Harris, 2 Humph. (Tenn.) 311.
(104)
Ch. 4]. CHARGING ON FACTS. § 47
subject to mucli imperfection and mistake;^® or to instruct
directly or by intimation that evidence is entitled to little
■weight;®' or to tell the jury to consider any particular state-
ment of a -witness as a mistake, and to give full credence to
the remainder of his testimony;''^ or to state that, while
there is some evidence to go to the jury, it is a bare scmtilla,
leaving the matter not proved;®^ or to state that the evidence
shows certain facts ;^^ or that certain evidence prima facie
establishes a fact ;®'' or to intimate that a fact has or has not
been established;®^ or to assume the existence of a material
fact;'* or to state that the testimony of defendant and one
00 Kauffman v. Maier, 94 Cal. 269.
08 State V. Hundley, 46 Mo. 414; Knowles ▼. Nixon, 17 Mont. 473.
It Is proper to refuse to comment adversely upon the testimony of
a witness. Granby Mining & Smelting Co. v. Davis, 156 Mo. 422.
07 Citizens' St. Ry. Co. v. Burke, 98 Tenn. 650.
08 Boing V. Raleigh & Gaston R. Co., 87 N. C. 360.
o» People V. Casey, 65 Cal. 260; Fitzpatrick v. Fain, 3 Cold. (Tenn.)
15; Leiber v. Chicago, M. & St. P. Ry. Co., 84 Iowa, 97; Kinney v.
North Carolina R. Co., 122 N. C. 961. In a criminal prosecution, an
Instruction that the proof shows beyond all controversy that certain
facts have been established is erroneous, though defendant has in-
troduced no evidence. State v. Carter (Iowa) 83 N. W. 715. All
fact Issues arising in a criminal 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 therefore 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 (Iowa) 84 N. W. 518.
«o Hartshorn v. Byrne, 147 111. 418.
oiLorie v. Adams, 51 Kan. 692; Rushin v. Shields, 11 Ga. 636;
Suddeth v. State, 112 Ga. 407; Anniston City Land Co. v. Edmond-
son (Ala.) 30 So. 61; 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 evi-
dence. Florida, C. & P. R. Co. v. Lucas, 110 Ga. 121.
•2Halsey v. Bell (Tex. Civ. App.) 62 S. W. 1088; Martin v. L88li«,
93 III. App. 44; Ellerbee v. State (Miss.) 80 So.' 67. See, also, ant«,
(105)
§ 47 INSTRUCTIONS TO JURIES. [Ch. 4
of the witnesses was evenly balanced;*' or to give an in-
struction which assumes to determine a question of inten-
tion ;'* or to express an opinion of the legal value of a fact
testified to;*** or to instruct that certain evidence is good
and effectual in law to maintain the issue on behalf of the
party producing it;®* or to state what the evidence tends to
show;®^ or to state that matters alleged in the declaration
are disproved by the evidence ;®* or that a fact is conclusively
proven.®*
It is also error to instruct 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" f that "slight circumstances will carry" conviction
of the existence of fraud f^ that the jury must put upon any
part of the testimony a construction favorable to the defend-
ant, if reasonable ;^^ or to state that plaintiff is "entitled"
to compensatory damages ;^* or that "full weight" should be
§ 29 et seq., "Assumption of Facts." An instruction, in an' action
by a traveler against a city, ■which assumes "that plaintiff was want-
ing either in ability, skill, or care," is upon the weight of evidence.
City of San Antonio v. Porter (Tex. Civ. App.) 59 S. W. 922.
63 Canada v. Curry, 73 Ind. 246.
o< Oliver v. State, 17 Ala. 587; Barton v. Stroud-Gibson Grocer Co.
(Tex. Civ. App.) 40 S. W. 1050.
60 State V. Swayze, 30 La. Ann. 1323.
86 Keel V. Herbert, 1 Wash. (Va.) 203.
6f City of Junction City v. Blades, "1 Kan. App. 85. See, also.
State V. Donovan, 61 Iowa, 369; Missouri Pac. Ry. Co. v. ■Chrlstman,
65 Tex. 369. See Seeley v. State (Tex. Cr. App.) 63 S. W. 309.
68 James v. Brooks, 6 Heisk. (Tenn.) 150.
ei>Bardwell v. Ziegler, 3 Wash. St. 34.
TO Bunting v. Saltz, 84 Cal. 168.
Ti Higginbotham v. CampbeM, 85 Ga. 638, in which It was said
that it would be correct to charge that "slight circumstances may
be BuflBclent to carry • * •."
72 Smith V. State, 88 Ala. 23.
73 Browning v. 3omes, 52 111. App. 597.
(106)
Ch. 4] CHARGING ON FACTS. § 47
given designated testimony, instead of "the weight to which,
in their opinion, such testimony is justly entitled" ;^^ that
the jury might convict the defendant if they found there
was any evidence in certain circumstances, singled o,ut or
otherwise, which they thought corroborated a witness who
was an accomplice f^ that "you will determine from the evi-
dence whether there was or was not a confession tmder such
a warning, as before defined, and voluntarily and freely
made, as before instructed. If you so find, you will convict
defendant" •,''^ that, under the evidence in the case, the jury
cannot convict the defendants of murder in the second degree,
there being some evidence to establish their crime, though
contradicted by other evidence f that, unless the jury disbe-
lieved the testimony of the defendant, the weight of testimony
tended to prove that his act was not wiminal ;''* that "this is
a case in ■whit;h you have to rely upon ju«t 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 evidence" ;^*
to state that a decision read by counsel from a volume 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;®" that, from the facts proven, plaintiffs were
Mititled to recover;®* to state that certain testimony was
immaterial ;*^ that the testimony of a party to the suit might
not be sufficient to warrant a finding upon it, if it appeared
T4 Davis V. Hays, 89 Ala. 563.
70 Dickenson v. State (Tex. Cr. App.) 63 S. W. 328.
7"! McVeigh v. State (Tex. Cr. App.) 62 S. W. 757.
77 state V. Potter, 16 Kan. 80.
78 People V. Cowgill, 93 Ca;!. 596.
79 McVicker v. Conkle, 96 Ga. 584.
80 Moore v. Robinson, 62 Ala. 537.
«iAyres v. Moulton, 5 Cold. (Tenn.) 154.
»»Jessup V. Gragg, 12 Ga. 2€1.
(H07)
§ 47 INSTRUCTIONS TO JURIES. [Ch, 4
that he could havie brought other testimony to the fact;®'
or that the fact that defendant did not disprove circum-
stances, if the jury believe he has the means of disproving
them if false, lends additional weight to such as are proved ;'*
to state that certain evidence of a fact is a suspicious circum-
stance against defendant;** that "the guilt of the defendant
rests upon what is known as 'circumstantial evidence' " ;**
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 f that, "if you find that
defendant testified," etc., and "if you find that his actions
speak louder than words thus testified to" f^ that the evidence
preponderates in favor of one side of the case ;** that certain
indicia of fraud raise a "violent presumption" f° that, "if
you [the jury] believe * * *j that would be a strong
circumstance to show";®^ or that a fact is a strong and al-
most irresistible circumstance;®* or that certain evidence is
conclusive f^ or is short, clear, and to the point, and leaves
not much room for doubt;®* or discuss defendant's testi-
mony in such a manner as to give the jury the impression
"'Balnes v. Ullmann, 71 Tex. 529.
8* Leonard v. Territory, 2 Wash. T. 381.
SB Massey v. State, 1 Tex. App. 564.
s» State V. Duffy, 6 Nev. 138.
8' Ferguson v. Porter, 3 Fla. 27.
«» Wilkinson v. Searcy, 76 Ala. 176.
«» Thompson v. Thompson, 17 B. Mon. (Ky.) 28.
00 Shealy v. Edwards, 75 Ala. 411.
01 Phillips T. Williams, 39 Ga. 602. An instruction that a certain
fact In evidence Is a "strong circumstance" showing a particular in-
tention invades the province of the jury, and is erroneous. Clark
V. Smith. 87 111. App. 409.
MMarr v. Marr, 5 Sneed (Tenn.) 385.
»»Burkham v. Mastin, 54 Ala. 122.
»* State v. Asberry, 37 La. Ann. 124.
(108)
Ch. 4] CHARGING ON FACTS. § 4
that the court thought it was of little value;*" or to state
that one kind of evidence cannot outweigh another kind;"*
that circumstantial evidence, when fully and conclusively
made out, is sufficient to sustain a conviction;'^ that upon all
the evidence, if believed, plaintiff is not entitled to recover ;**
that, if the jury believe the evidence, they must find for a
party named ;"* that, from the whole testimony before them,
the demand of the plaintiffs was not barred by the statute
of limitations;*"" that certain evidence is strong evidence
to disprove;'"* to state that the judge had heard no evi-
dence of an agreement that would operate as an estoppel to
the plaintiff;*"^ that, "no damages having been alleged, arfd
no damages having been proved, they could not render a ver-
dict for damages" ;*"* that certain evidence shows negli-
gence,*"* as, for instance, that certain acts of the plaintiff
were "all that the law required of her, so far as diligence
S5 State V. Wyse, 32 S. C. 45.
»« Bowie V. Maddox, 29 Ga. 285.
o^ Horton v. State (Tex. App.) 19 S. W. 899. See, also, chapter
29, "Cautionary Instructions on Circumstantial Evidence."
88 Sherrill v. Western Union Tel. Co., 116 N. C. 655.
99 Smith V. Collins, 94 Ala. 394; Gibson v. Snow Hardware Co., 94
Ala. 346.
100 Fisher's Ex'r v. Duncan, 1 Hen. & M. (Va.) 563.
101 Jenkins v. Tobin, 31 Ark. 307.
302 Howard v. Wofford, 16 S. C. 148.
103 Levi v. Legg, 23 S. C. 282.
• 104 New York, C. & St. L. R. Co. v. Blumenthal, 160 111. 40; Galves-
ton, H. & S. A. Ry. Co. v. Knippa (Tex. Civ. App.) 27 S. W. 730;
Costley V. Galveston City Ry. Co., 70 Tex. 112; San Antonio &
A. P. Ry. Co. V. Long, 4 Tex. Civ. App. 497; William Graver Tank
Works V. McGee, 58 111. App. 250; Blair v. Mound City Ry. Co.,
31 Mo. App. 224. An instruction declaring it negligence per se
for the complainant, with knowledge of the dangerous condition of
a street, to drive along it, if she ought reasonably to have avoided it,
is properly refused. City of San Antonio v. Porter (Tex. Civ. App.)
59 S. W. 922.
(109)
§ 47 INSTRUCTIONS TO JURIES. [Ch. 4
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" ;'** or to state that there is a conflict in
the evidence, when that is denied;"® or to state that the
evidence did not show what plaintiff claimed it did;^"^ or
to tell the jury that, upon a given state of facts, they can
have no reasonable doubt ;^''® or to tell the jury that certain
facts are not fraudulent if there was any controversy as to the
existence of the facts ;^''* to state that a party was a fair pur-
chaser for a valuable consideration ;-'^-''* that, "if you disbelieve
all the evidence for the state, and believe every word of evi-
dence 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";^^^ that the jury must discard
from their consideration any part or the whole of the testi-
mony of any witness that they may regard as improbable or
untrue ;^^^ to characterize a sale alleged to have been made as
a "so-called sale" ;^** to state that certain evidence, if believed
by the jury, "is not sufficient to authorize them to find a due
presentation of the claim" sued on;^^* that is the jury be-
lieve from the evidence of a particular witness that all his
knowledge of a fact testified about by him is derived from the
105 Blair v. Mound City Ry. Co., 31 Mo. App. 224.
106 Black V. Thornton, 30 Ga. 361; Raoul v. Newman, 59 Ga. 412.
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 con-
flict in the evidence In certain respects is not an expression of opin-
ion upon the weight of the evidence."
101 Southern Life Ins. Co v. Wilkinson, 53 Ga. 548.
los Wilcox v. State, 3 Heisk. (Tenn.) 110.
109 Cleveland v. Empire Mills, 6 Tex. Civ. App. 479.
no Fowler v. Lee, 4 Munf. (Va.) 373.
111 White v. State, 56 Ga. 385.
112 Bishop V. State, 43 Tex. 391.
113 Kuhlenbeck v. Hotz, 53 111. App. 675.
114 Frazier's Ex'r v. Praytor, 36 Ala. 691.
(110)
Gh. 4] CHARGING ON PACTS. § 47
booka of the party calling him, and if they find, that the tes-
timony of such witness is all the evidence on that subject,
then there is no evidence before them as to that fact.^^'
The following cases also illustrate the rule against char-
ging on the weight of the evidence: In an action against
a railroad company for damages caused by fire, an instruc-
tion 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, and an in-
vasion of the province of the jury.^^* In a suit involving
boundaries, in which an order of survey had been made,
and the report of the surveyor submitted 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.^^^ An instruction that certain articles constitut-
ing a museum had no general market value is on the weight
of the evidence ; the evidence as to the nature of the articles
and the manner of their collection and preparation tending
to show that they were all such specimens as might have a
market value.'*® In an action against a railroad company
for damages for injuries inflicted in a collision, the court
instructed the jury that, "when it is shown by the proof
that an injury was received by reason of and as the direct
iisWolcott V. Heath, 78 111. 433.
118 Galveston, H. & S. A. Ry. Co. v. Knippa (Tex. Civ. App.) 27
S. W. 730. The correctness of this holding is questionable. In
Texas, the province of the jury seems to be guarded more jealously
than in any other state of the Union, and the rulings of its courts
go to the very verge of the law in maintaining the prerogative of
the jury.
iiTKerlicks v. Meyer, 84 Tex. 158.
lis Yoakum v. Dunn, 1 Tex. Civ. App. 524.
(Ill)
§ 47 CHARGING ON PACTS. [Ch. 4
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." This charge was held clearly violative
of the rule.-'^* Where a suit was brought because of the pre-
mature issue of an execution, it was held error to charge "that
the issuance of an execution immediately upon the rendition
of a judgment, upon the filing of a proper affidavit, without
waiting for the lapse of ten days, is summary, and might be
rendered exceedingly harsh and oppressive," as calculated to
lead the jury to believe that the court thought a great wrong
had been done.^^° In a suit for the value of horses alleged to
have been purchased by B., it was proved, among other things,
that the horses were purchased for the use of the Overland
Mail Line, and the court instructed the jury that, under the
evidence, B. was to be considered the sole proprietor of that
line. This was held a violation of the rule prohibiting charges
as to matters of fact.^^^ Where an agent took a Jeed for land
in settlement of an account without authority from his princi-
pals, 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 posesssion of the facts.^^^ Instructions containing direc-
tions or advice in respect of inferences of fact to be dravm by
the jury from the evidence are properly refused.^ ^^ An in-
struction defining'the term "preponderance of the evidence" as
meaning not necessarily the greater number of witnesses is er-
ne Texas Cent. Ry. Co. v. Burnett, 80 Tex. 536.
120 Clifford V. Lee (Tex. Civ. App.) 23 S. W. 843.
121 Pico V. Stevens, 18 Cal. 376.
122 Meyer v. Smith, 3 Tex. Civ. App. 37.
123 State V. Mahoney, 24 Mont. 281.
(112)
Ch. 4] CHARGING ON FACTS. § 47
foneous, being upon the weight of the evidence.^** An instruc-
tion that it was the defendant's duty to use ordinary care to
furnish for its employes 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 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 interpretations, the charge is obviously
upon the weight of the evidence.^^^ Other illustrations are
set out in the notes.^^®
"4 Dallas Cotton Mills v. Ashley (Tex. Civ. App.) 63 S. W. 160;
St. Louis S. W. Ry. Co. v. Smith (Tex. Civ. App.) 63 S. W. 1064.
125 Galveston, H. & S. A. Ry. Co. v. English (Tex. Civ. App.) 59
S. W. 626.
12a On an indictment for murder, an instruction that, if the de-
fendant inflicted the wound, and if such wound caused death, the
case was murder, was held erroneous because it applied a princi-
ple of law to the facts of the case, although it did not express a
direct opinion. Wall v. State, 112 Ga. 336. 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 re-
fused, being on the weight of the evidence. Clark v. State (Tex. Cr.
App.) 59 S. W. 887. An instruction "that the Indictment is 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 verdict 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 re-
quested by either party in writing, is in violation of the statutes of
the state of Alabama. Gaftord v. State, 125 Ala. 1. An instruction,
in an action for damages caused by a prairie fire set by the de-
fendant, that "fire is a dangerous element, and a degree of care is
required, in making use of it, corresponding to the danger, and that
(113)
8 — Ins. to Jarles.
g 48 INSTRUCTIONS TO JURIES. [Ch. 4
§ 48. Same — Instructions held not to violate prohibition.
The following instructions have been objected to as being
on the weight of the evidence, and held not objectionable
on that ground : Instructions limiting the effect of evidence
which was competent for some purposes, but not for oth-
ers ;'^^ instructions stating there is no evidence as to a par-
ticular fact or issue, when such is the case^** (and it has
been held that it is the duty of the court to tell the jury
that there is no evidence if there is none^^®) ; instructions
stating that certain evidence objected to is admissible, noth-
ing' else being said which would lead the jury to believe thsjt
the court thought such evidence controlled the case;^^'* in-
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," violates a statute
which forbids the court to charge or comment on the weight of the
evidence. Meadows v. Truesdell (Tex. Civ. App.) 56 S. W. 932. An
instruction, "You are further Instructed 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 deafness, would require
greater vigilance of plaintiff in the exercise of his eyesight in ap-
proaching said crossing," is properly refused as being a discussion
of, and comment upon, the evidence, and, in effect, a charge upon the
weight of the evidence. Texas & P. Ry. Co. v. Durrett (Tex. Civ.
App.) 63 S. W. 904. 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 evidence,
and should be refused. City of Dallas v. Beeman, 23 Tex. Civ. App.
315.
127 Jacobs V. Totty, 76 Tex. 343 ; Bruno v. State (Tex. Cr. App.)
58 S. W. 85; Messer v. State (Tex. Cr. App.) 63 S. W. 643; Jasper
V. State (Tex. Cr. App.) 61 S. W. 392.
128 People V. Welch, 49 Cal. 174; People v. King, 27 Cal. 507;
Reed v. Shenck, 13 N. C. 415; King v. King, 155 Mo. 406.
129 Wells v. Clements, 48 N. C. 168.
130 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
(114)
Ch. 4] CHARGING ON FACTS. g 48
struotions declaring the law applicable to a given state of
facts/** or reciting the facts as claimed to have been proved,
and giving the law thereon, without giving or intimating any
opinion as to whether such facts have or have not been
proved;*^* instructions stating that, if the jury believe cer-
tain facts to have been proved, they should find a stated ver-
dict;*** instructions assuming facts which are admitted by
both parties,*** or facts which are supported by convincing
evidence, and not controverted**^ (in one case it is said that
evidence produced and admitted in the ease 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.
181 Yarborough v. State, 86 Ga. 396. An instruction, in an action
by a servant against a "master for personal injuries, that the jury
should find that plaintiff was not guilty of contributory negligence,
and if certain facts, alleged to show negligence on the part of de-
fendant, had happened, and if the defendant was guilty of negli-
gence, as explained in other instructions, then the jury should find
such actual damages as would compensate plaintiff, merely applies
the law to the very facts of the case, and is not upon the weight of
the evidence. Houston & T. C. Ry. Co. v. White, 23 Tex. Civ. App.
280. Instructions declaring the law upon a hypothetical state of
facts do not violate statutory or constitutional provisions forbidding
a charge on matters of fact. State v. Whittle, 59 S. C. 297; Phoenix
Ins. Co. V. Neal, 23 Tex. Civ. App. 427; Waters-Pierce Oil Co. v. Da-
vis (Tex. Civ. App.) 60 S. W. 453; Jones v. Hiers, 57 S. C. 427.
i82Pritchett v. Overman, 3 G. Greene (Iowa) 531; State v. Smith,
11 La. Ann. 633; Andrews v. Parker, 48 Tex. 94. The court may re-
cite in its charge the facts established by uncontroverted evidence,
If it does so in such a manner that the recital cannot have any poS'
Bible influence upon the jury in determining the issue of fact sub-
mitted to them. Halseir v. Neal, 23 Tex. Civ. App. 26.
1 as State v. Mitchell, 41 La. Ann. 1073; Thompson v. Johnson
(Tex. Civ. App.) 58 S. W. 1030.
i»* State V. Angel, 29 N. C. 27; San Antonio & A. P. Ry. Co. v.
,Ilse (Tex. Civ. App.) 59 S. W. 564.
isiHogan v. Shuart, 11 Mont. 498; Marshall v. Morris. 16 Ga. 368;
Denham v. Trinity County Lumber Co., 73 Tex. 78; People v. Lee
(115)
§ 48 INSTRUCTIONS TO JURIES. [Ch. 4
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,^'® and in
another that, if the presiding judge inadvertently assumes
as uncontroverted matters in evidence upon which either
party proposes to raise an issue to the jury, it is the duty
of counsel to call the attention of the judge to the fact^'^) ;
instructions assuming the nonexistence of evidence which was
excluded or not offered ;^^* instructions telling the jury that
the evidence is open to two constructions, but which do not
intimate which construction is the correct one;^^^ instruc-
tion that, if the evidence is not reconcilable, the jury should
decide what witnesses were the most credible;-'*'* instruc-
tions to find for plaintiff if the jury found that certain facts
existed, and to find for defendant if they found that such
facts did not exist ;^*' instructions stating the purpose for
which certain evidence was admitted**^ (but not what it
tends to prove, without submitting at the same time the
Sare Bo, 72 Gal. 623; McLellon v. Wheeler, 70 Me. 285. See, also,
McGhee v. Wells, 57 S. C. 280.
isewintz v. Morrison, 17 Tex. 372.
187 Harvey v. Dodge, 73 Me. 316.
188 Territory v. Gay, 2 Dak. 125.
138 Wyley v. Stanford, 22 Ga. 385.
"0 Rideus V. State, 41 Tex. 199.
1*1 Ryan v. Los Angeles Ice & Cold Storage Co., 112 Cal. 244.
See, also, Messer v. State (Tex. Cr. App.) 63 S. W. 643. An in-
struction that, if the Jury believe from the evidence certain facts, a
prima facie case of negligence is made out against the defendant,
and that. If the jury believe certain other facts, this prima facie
case is rebutted, is not open to the objection that it is on the weight
of the evidence. It may be observed, however, that this was an ac-
tion against a railroad company, and a different rule seems to pre-
vail in such actions in Texas than that applied in other actions.
Texas & P. Ry. Co. v. Rice (Tex. Civ. App.) 59 S. W. 833.
142 Davis V. Gerber, 69 Mich. 246; Howerton v. Holt, 23 Tex. 57.
(116)
Ch. 4j CHARGING ON FACTS. § 48
question of its credibility^*^) ; instructions directing the jury
to the. real issue, when the argument of counsel is such as to
distract their minds therefrom;^** instructions calling the
jury's attention to questions of fact by way of interrogatories
addressed to them upon matters important for their consid-
eration in arriving at a correct conclusion upon the main
question;^*'* instructions summing up or recapitulating the
evidence, though this is prohibited in some states by organic
or statutory provision.^** 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.-'*^ So, in these
143 Davis v. Gerber, 69 Mich. 246.
141 State V. West, 43 La. Ann. 1006.
146 state v. Day, 79 Me. 125.
iieHlott V. Pierson, 35 S. C. 611, 14 S. B. 853; State v. Summers.
19 S. C. 95; York v. Maine Cent. R. Co., 84 Me. 128; State v. Glo-
ver, 27 S. C. 602; State v. Dawkins, 82 S. C. 17. See ante, § 38 et
seq.
"THlott V. Pierson, 35 S. C. 611, 14 S. E. 853; Com. v. Barry, 9
Allen (Mass.) 276; State v. Freeman, 100 N. C. 429. In Com. v.
Barry, supra, It was said: "The prohibition must be regarded as
a restraint 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 interfer-
ing with the province of juries by any statement of their own judg-
ment or conclusion upon matters of fact. This construction effect-
ually accomplishes the great object of guarding against any bias or
undue Influence which might be created in the minds of jurors, If
the weight of the opinion of the court should be permitted to be
thrown into the scale in deciding upon issues of fact; but further
than this the legislature did not intend to go. The statute was not
designed to deprive the court of all power to deal with the facts
proved. On the contrary, the last clause of the section very clearly
contemplates that the duty of the court may not be fully discharged
by a mere statement of the law. By providing that the court may
also state the testimony, the manifest purpose of the legislature
(117)
g 48 INSTRUCTIONS TO JURIES. [Ch. 4
jurisdictions, it is not erroneous for the trial judge to re-
peat the uncontradicted testimony of witnesses, and point
out the inquiries suggested therehy;^*® or to call the jury's
attention to the evidence in the case, and state his recollec-
tion of what has or has not been testified to, submitting the
whole matter to their consideration and judgment ;^*^ or to
analyze, compare, and explain the evidence ;^^" or to read
extracts from the evidence of a witness at the request of the
jury, the parties being present, and not objecting.^®^ So,
in these jurisdictions, it has been held that a misstatement
of the evidence in summing up is not an expression of opin-
ion, and that it is the duty of counsel to call the judge's at-
tention to his error, in order that it may be corrected.^'* It
has also been held that a simple enumeration of circum-
stances, though leading to an irresistible conclusion of fact,
cannot be considered as an expression of opinion on such
fact.i"
So, the following instructions have been held not on the
weight of the evidence: Instructions that there was "some
evidence tending to show" a certain fact;^^* instructions lim-
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 Issues, and to indicate
its proper application under the rules of law."
"8 State V. Gliover, 27 S. C. 602.
"»Eddy V. Gray, 4 Allen (Mass.) 435.
iBo Hamlin v. Treat, 87 Me. 210.
"1 Green v. State, 43 Ga. 368.
i»2 Grows V. Maine Cent. R. Co., 69 Me. 412.
1" State V. Noblett, 47 N. C. 418.
iMMichie V. Cochran, 93 Va. 641; People v. Flannelly, 128 Cal.
83. An Instruction In a criminal case stating, "Here is evidence
that the homicide was committed within the corporate limits,
• » * and there is other evidence of it, to which I will call your
attention," etc., is not a violation of a statute forbidding the court
to express an opinion as to whether a fact is fully or sufficiently
(118)
Ch. 4] CHARGING ON FACTS. § 48
iting the amount of the verdict to the amount claimed in
the petition ;^°^ a statement by the judge, on refusing a ver
quest, that "I do not regard this request as being in accord-
ance with the evidence^ — it is upon a state of facts which the
evidence does not warrant j"^*"^ an instruction that the testi-
mony of a witness, if true, will establish a specified fact,
leaving the jury to decide upon his credibility ;^^^ informing
the jury that there is some evidence in the case of a circum-
stantial nature ;^^® a statement that "plaintiff brings evidence
to show" ;^^^ an instruction that, "if the jury believe from the
evidence that the defendants did certain things, * * *"
then the defendants are liable for all damages sustained;^®"
an instruction cautioning the jury not to let a certain cir-
cumstance prevent their looking to the whole evidence in
making up their verdict j-'®-' an instruction in a murder case
that evidence to establish an alibi, like any other evidence,
may be open to special observation, as persons may perhaps
fabricate it with greater hopes of success or less fear of pun-
ishment than most other kinds of evidence, does not tell the
jury that in the instant case they are to attach less weight to
the evidence of alibi than to other evidence. ■^*^*
The following cases are also illustrative of instructions
which have been held not to violate the rule against charging
proved. State v. Edwards, 126 N. C. 1051. There is no objection to
a charge declaring that evidence has been ofEej-ed tending to prove
a certain material fact In the case, if it is disclosed by the record
that the statement is true beyond any possible question. People v.
Plannelly, 128 CaL 83.
165 Oglesby v. Missouri Pac. Ry. Co. (Mo.) 37 S. W. 829.
166 Pillsbury v. Sweet, 80 Me. 392.
16T Sneed v. Creath, 8 N. C. 309.
"» People v. Wong Ah Foo, 69 Cal. 180.
168 Central R. Co. v. Freeman, 75 Ga. 331,
180 Lagrone v. Tlmmerman, 46 S. C. 372.
161 Anderson v. Matindale, 61 Tex. 188.
laia People v. Wong Ah Foo, 69 Cal. 180.
(119)
g 48 INSTRUCTIONS TO JURIES. [Ch. 4
on the weight of the evidence : Where a party has, by the in-
troduction of title papers in evidence, shown a connected
claim of valid transfers to land from and under the sover-
eignty of the soil down to himself, except one link in the
chain, which was supplied by undisputed 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.^®* 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 jus-
tice instructed the jury: "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 b© main-
tained," followed by a statement of the plaintiff's denial of
thi£, 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.^®* At the trial of an action brought by the assignee of a
bankrupt for the conversion of goods conveyed by the bank-
rupt to the defendants by a mortgage alleged to be a fraudu-
lent preference, the judge instructed the jury that if the de-
fendants 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 re-
quired 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
102 Teal v. Terrell, 58 Tex. 257.
les Fogg v. Uttlefleld, 68 Me. 52.
(120)
Ch. 4] CHARGING ON FACTS. § 48
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 statutory prohibition.^** Oil a
proieoution 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, in-
dicating 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 instruction,
■would be understood by the jury as tending to show a cer-
tain result, and that the language of the instruction is not
in violation of the constitutional provision prohibiting the
court from charging the jury with respect to matters of
fact.^®" On a trial for murder, where it appeared that de-
fendant and deceased had married sisters, and an attempt
to justify the killing was based on the fact that decieased
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 intima-
tion of opinion as to what had been proved by the evidence.^**
An illustration not referring to the facts of the case at bar
is not erroneous.-'*'' An instruction not intended as a com-
ment on the facts, but merely for the purpose of itating the
i«4 Forbes v. Howe, 102 Mass. 427. ,
185 state v. Loveless, 17 Nev. 424.
i«8 State V. Dennlson, 44 La. Ann. 135.
187 State T. Godfrey, 60 S. C. 493.
(121)
§ 49 INSTRUCTIONS TO JURIES. [Ch. 4
issues or contentions of the respective parties, is not errone-
ous.-"* An instruction that a certain fact exists is not erro-
neous, ahhough the fact is disputed, where the context shows
that the statement was made as the contention of one of
the parties."® An instruction that, "unless the evidence
estahlished 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 reasonable doubt that the defendant filed it with the inten-
tion 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 he
inferred from all the facts and circumstances proved in the
cause," — ^was not erroneous.^^*
§ 49. Same — Curing error by other instructions.
Where the court comments on the evidence, or intimates
or expresses an opinion as to its weight and sufficiency,, 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,^''^ and are
not bound by any opinion which the court may have ex-
168 westbury v. Simmons, 57 S. C. 467; Shermaa, S. & S, Ry.Co.
V. Bell (Tex. Civ. App.) B8 S. W. 147; Gilchrist v. Hartley, 198 Pa.
182.
169 West V. Banigan, 61 App. Div. (N. Y.) 328.
170 Ferris v. State, 156 Ind. 224. See, also, Aston v. State (Tex.
Cr. App.) 61 S. W. 307.
I'l People V. Lyons, 49 Mich. 78; Territory v. O'Hare, 1 N. D. 30;
Shorb V. Klnzie, 100 Ind. 429; State v. Dick, 60 N. C. 440; State v.
White, 15 S. C. 393; People v. Chew Sing Wing, 88 Cal. 288; People
v. Kindleberger, 100 Cal. 367; State v. Ah Tong, 7 Nev. 148. Contra,
White T. Territory, 1 Wash. St. 279; Humphreys v. Collier, Breese
(111.) 299.
(122)
Ch. 4] CHARGING ON FACTS. § 49
pressed on the evidence,*^* or that the court cannot express
any opinion on the facts.^" Such an instruction is not
sufiicient to do away with the effect of the previously ex-
pressed opinion,^''* and it makes no difference whether the
instruction is given at the same time with the expression
of opinion,'^* or in a subsequent part of the charge;^''* and
it is likewise immaterial that repeated statements are made
that the jury are the exclusive judges of the weight of the
evidence and the credibility of the witnesses.^^'' It has ac-
cordingly been held that the 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 solo
judges of the weight of a witness' testimony.*''* And where
the court made an argumentative comparison of the relative
credibility of the principal witnesses for the defense and
the principal witnesses for the prosecution, their testimony
being vital and in direct conflict, and in so doing disparaged
the credibility of witnesses for the defense, and conveyed to
the jury in plain terms that the court entertained strong
suspicions of the witnesses for the defense, it was held re-
versible error, notwithstanding the court repeatedly told the
jury that they were the exclusive judges of the weight of
the evidence and the credibility of the witnesses.-'''® Never-
theless, the fact that the court, at the time of giving the in-
struction complained of, explained fully that the jury were
1T2 People V. Chew Sing Wing, 88 Cal. 268.
178 state V. White, 15 S. C. 393; People v. Klndleberger, 100 Cal.
367.
i'4 State V. White, 15 S. C. 393.
176 Shorb V. Kinzie, 100 Ind. 429.
"« People V. Klndleberger, 100 Cal. 367.
177 Territory v. O'Hare, 1 N. D. 30.
"8 People V. Lyons, 49 Mich. 78.
i7» Territory v. O'Hare, 1 N. D. 30.
(123)
R 50 INSTRUCTIONS TO JTJRIBS. [Ch. 4
the judges of the facts, ought to go a long way in support-
ing an instruction where the error is not clear, but is only
arrived at by a nice construction of language incautiously
used.180
§ 50. Same — Violation of rule otherwise than by express in-
structions.
To work a reversal of the cause, it is not necessary that
the opinion or intimation of opinion as to the credibility
of the witnesses, or the weight and effect of the evidence, be
given to the jury by express instructions. 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.-'*^ So, an opinion expressed by the
court during the progress of the trial, which does not ap-
pear 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 review. ■'^^ It has also been held that,
if the admissibility of certain evidence depends upon the es-
tablishment of some necessary preliminary facts, it is not
improper for the judge, in passing on such question, to an-
nounce, for the guidance and benefit of counsel, the reasons
which controlled him in the admission or rejection of the
evidence; that this necessarily involves the expression of an
opinion upon the evidence already introduced, and that such
opinion cannot be assigned for error. This rule is well illus-
trated by a case in which the admissibility of certain evi-
dence depended on the preliminary proof of a promise by
one of the parties. In deciding that the evidence was ad-
180 See People v. Carey (Mich.) 84 N. W. 1087.
181 Phillips V. Beene, 16 Ala. 720.
182 Phillips y. Beene, 16 Ala. 720.
(124)
Ch. 4] CHARGING ON FACTS. g SO
missible, 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 that, "while
the expression of the learned judge that, as the case then
stood, a prima facie promise had been proven, might be the
subject of criticism if presented to the jury as a formal in-
struction, 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 pro-
posed testimony."^^^ Unless expression of opinion is ren-
dered necessary in ruling on the admissibility of evidence,
such expression of opinion, whether addressed to the jury
or to counsel, or whether given as an instruction or not,
will, in general, be a ground for reversal.^** The right to
a decision on the facts by a jury uninfluenced and unbiased
by the opinion of the judge * * * cannot be lawfully
denied, by the simple evasion of looking at the counsel in-
stead of at the jury, or of foisting the opinion into a ruling
upon testimony. I' ^^ 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 prej-
udice 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 corresponding detriment to the cause of the others.^^® The
trial court has no more right to volunteer before the jury
188 Reed V. Clark, 47 Cal. 200.
184 State V. Harkin, 7 Nev. 377; Puhrman v. City of Huntsvllle,
54 Ala. 263; McMinn v. Whelan, 27 Cal. 300; State v. Dick, 60 N. C.
440; Andreas v. Ketcham, 77 111. 377.
185 State V. Harkin, 7 Nev. 383.
188 McMinn v. Whelan, 27 Cal. 320.
(125)
§ 50 INSTRUCTIONS TO JURIES. [Ch. 4
his opinion upon a material fact in controversy, while de-
ciding 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 imperatively in case of
a mere inadvertence as in the case of a willful evasion of
the law.''*'' The following cases aptly illustrate the prin-
ciple enunciated: 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 evidence, * * * they would
find the case decidedly criminal." Tor this remark, the
judgment was reversed.'** So a remark of the judge vouch-
ing for the respectability of a witness whose character was
called into question during the course of the trial was also
held reversible error, the testimony of such witness being
material.'** In another case, the court, in declining de-
fendant's request to withdraw certain confessions, told the
state's attorney 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 case was sufficiently proved without the
aid of the confessions," and the judgment was reversed.'®"
So, where the defense to a suit to recover the price of a
map was that the view of the defendant's residence 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 defendant's residence, to which he replied that he did not
know that he would, this was held reversible error.'*^
187 state V. Harkln, 7 Nev. 377.
188 Furhman v. Cily of Huntsville, 54 Ala. 263.
189 McMinn v. Whelan, 27 Cal. 300.
190 State V. Dick, 60 N. C. 440.
181 Andreas v. Ketcham, 77 111. 377.
(126)
Ch. 4] CHARGING ON FACTS. § 51
I 51. Same — ^Indicating opinion by questions asked the jury.
To violate the rule against charging on the weight of
the evidence, it is not necessary that the instruction take
the form of a direct and categorical statement. An opinion
on a question of fact may be as plainly expressed by
questions asked the jury as by a direct statement, and the
mischief which the rule is intended to prohibit will be the
same in both cases.^®* Thus, if the judge, in charging the
jury, asks, "Is that the way an honest man would act?
* * * Do honest people act so ?" this amounts to an ex-
pression of opinion on the facts, and is erroneous.^'*
182 state V. Norton, 28 S. C. 572; Frledrlch v. Territory, 3 "Wash.
St. 358; State v. Jenkins, 21 S. C. 696; State v. Addy, 28 S. C. 4.
103 State V. Jenkins, 21 S. 0. 695.
(127)
CHAPTER V
SUMMING TJP THE EVIDENCE.
1 52. The Practice Defined and Describe^.
53. Where Practice Permissible.
54. Where Practice not Permissible.
55. Necessity of Summing up Evidence.
56. Method of Summing up — ^Whether Necessary to State All
the Evidence.
57. Same — Whether Necessary to Give Precise Language of
Witness.
58. Same — Whether Necessary to Give in Order in Which Evi-
dence was Admitted.
59. Same — Miscellaneous.
60. Effect of Misstating Evidence and Method of Preserving
Error for Review.
§ 52. Tlie practice defined and described.
At common law it was the unquestionable right of the
trial judge to sum up or recapitulate the evidence adduced
in the trial of the cause before him, and, as will be subse-
quently shown, it was also permissible for him to comment
on the evidence and express his opinion as to, the credibil-
ity of the witnesses, or as to the weight and effect of the
evidence or any part thereof.-^ The practice of summing up
is alluded to in Blackstone's Commentaries, and is thus de-
scribed: "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 su-
perfluous circumstances, observing wherein the main ques-
tion and principle! issue lies, stating what evidence has been
given to support it, with such remarks as he thinks necessary
1 See post, art. 3, of this chapter.
(128)
(Ja. 5] SUMMING UP EVIDENCE. § 53
for their direction, and giving them his opiniqn in matters
of law arising upon that evidence."^ In support of the prac-
tice, the following reasons have been urged : "The great re-
liance, 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, un-
used as they are to Judicial inquiries, often depending upon
artificial reasoning, 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 sepa-
rate the material from the immaterial parts, and to combine
the former so as to display the full force of each and all
its parts."^ In this connection, a few words of caution to
the practitioner may not be out of place. The term "sum-
ming up the evidence" is often inaccurately used, both by
bench and bar, as inclusive both of a statement and re-
capitulation of the evidence, and of an expression of opin-
ion as to the credibility of the witnesses, and as to the weight
and effect of the evidence. As will be sho^vn hereafter,
courts are, by statiites or constitutional |/rovisions, expressly
forbidden in a majority of jurisdictions to express anj' opin-
ion as to the credibility of witnesses, and as to the weight
and effect of the evidence. Nevertheless, in many of these
jurisdictions the right to state and recapitulate the evidence
remains unaffected. It will therefore be seen that the use
of the term "summing up the evidence" to express these two
separate and distinct functions is very misleading, and the
writer has been careful to limit its use to the function
ascribed to it by Blackstone.
23 Bl. Comm. 375.
3 State V. Llpsey, 14 N. C. 485.
(129)
^ — Ins. to Juries.
I 53 INSTRUCTIONS TO JURIES. [Ch. 5
§ 53. Where, practice permissible.
As already stated, it was and still is the practice in Eng-
land for the trial judge to sum up and recapitulate the evi-
dence, and in the United States the practice is also per-
missible, both in jurisdictions where the court may express
his opinion on the facts,* and in jurisdictions where he is
prohibited from so doing by statutory or organic provisions,
unless such provisions also expressly or impliedly forbid
summing up the evidence.'' The rights of "the court in this
regard are original and inherent, and cannot be taken away
except by statutory or constitutional provision;* and it is
held that provisions which prohibit the court from express-
ing an opinion on the weight of the evidence do not atiecL
4 Mitchell V. Harmony, 13 How. (U. S.) 130; Starr v. United
States, 153 U. S. 614; Tracy v. Swartwout, 10 Pet. (U. S.) 80; Mc-
Lanahan v. Universal Ins. Co., 1 Pet. (U. S.) 170; Games v. Stiles,
14 Pet. (U. S.) 322; People v. Panning, 131 N. Y. 663; People v.
Fansliawe, 65 Hun (N. Y.) 77; State v. Rose, 47 Minn. 47; Com. v.
McManus, 143 Pa. 64; Hannon v. State, 70 Wis. 448; Morgan v.
S,tate, 48. Ohio St. 371; First Baptist Church in Stamford v. Rouse,
21 Conn. 167; Donnelly v. State, 26 N. J. Law, 480; District of Co-
lumbia V. Robinson, 180 U. S. 92, affirming 14 App. D. C. 512.
5 Hamlin v.' Treat, 87 Me. 310; Bellew v. Ahrburg, 23 Kan. 287;
Rose V. Otis, 5 Colo. App. 472; City & Suburban Ry. Co. v. Pindley,
76 Ga. 311; Whitlow v. State, 74 Ga. 819; Bray v. State, 69 Ga. 765;
Wright V. Central Railroad & Banking Co., 16 Ga. 46.
State V. Lipsey, 14 N. C. 485. The only cases found against this
doctrine are to be found in Indiana, but, inasmuch as there Is a
conflict of authority in that state, they are of small value. None of
these decisions seem to be based on any statutory authority. The
earlier decisions affirm the trial judge's right to sum up the evi-
dence. Barker v. State, 48 Ind. 163; Driskill v. State, 7 Ind. 338.
But two decisions of comparatively recent date hold this practice
erroneous: Killian v. Eigenmann, 57 Ind. 480; Cunningham v. State,
65 Ind. 377. In the last decision containing any reference to this
question there is a dictum that the court may sum up the evidence.
Pittsburgh, C. & St. L. Ry. Co. v. Sponier, 85 Ind. 165.
(130)
Ch. 5] SUMMING UP EVIDENCE. § 53
the right of the trial judge to sum up the evidence.''' Special
authority is found for the practice in some jurisdictions, in
constitutional or statutory provisions, the usual language of
which is that the trial judge "may state the testimony and
declare the law,"® and in one state it is provided that the
court "may also state the evidence when the same is dis-
puted."® These provisions, it has been held, are not repug-
nant to other provisions prohibiting the court from charging
on the weight of the evidence, or, in the usual language of
the statutes and constitutions, charging juries "with respect
to matters of fact."^" Where the same statute or constitu-
tion contains both provisions, 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 com-
mon-law practice remains unaffected, and that the provision
permitting him to sum up is merely declaratory and in affirma-
tion of his common-law right.-'' As was said in one case:
"By providing that the court may also state the testimony,
the manifest purpose of the legislature was to recognize and
7 Shiels V. Stark, 14 Ga. 429. And see, generally, post, art. 3, of
this chapter.
8 State V. Duffy, 6 Nev. 138; State v. Smith, 10 Nev. 106; Atchi-
son V. State, 13 Lea (Tenn.) 279; Case v. Williams, 2 Cold. (Tenn.)
239; Hughes v. State, 8 Humph. (Tenn.) 75; Ayres v. Moulton, 5
Cold. (Tenn.) 154; Ivey v. Hodges, 4 Humph. (Tenn.) 154; Lannum
V. Brooks' Lessee, 4 Hayw. (Tenn.) 121; Com. v. Barry, 9 Allen
(Mass.) 278; Miller v. Stewart, 24 Cal. 502; Morris v. Lachman, 68
Cal. 109; People v. Doyell, 48 Cal. 85; Bailey v. Poole, 35 N. C. 404;
State V. Noblett, 47 N. C. 418; State v. Boyle, 104 N. C. 819; State
V. Lipsey, 14 N. C. 485.
« Code Ala. 1886, § 2754. In construing this statute it has been
held that it is not in limitation or restraint of the court's original
and inherent power to state the admitted facts to the jury. Tid-
well V. State, 70 Ala. 33.
10 Com. V. Barry, 9 Allen (Mass.) '278; People v. Dick, 34 Cal. 663.
11 Com. V. Barry, 9 Allen (Mass.) 278; State v. Lipsey, 14 N. C.
485.
(131)
8 54 INSTRUCTIONS TO JURIES. [Ch. 5
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 issues, and to indicate its
proper application under the rules of law."^^
§ 54. Where practice not permissible.
Until a very recent date it was the practice in South Caro-
lina for the judge to sum up the evidence.^* This practice
was held to be authorized by a constitutional provision that
judges shall not charge juries with respect to matters of
"fact, but may state the testimony and declare the law."^*
(The italics are the author's.) But in 1895 this provision
was amended by striking out the first part of the italicized
clause, and, as amended, declared that "judges shall not
charge juries in respect to matters of fact, but shall declare
the law."-"^ In construing this amended provision, the
courts have held, and very properly it is believed, that the
framers of the new constitution, by omitting the words "but
may state the testimony," intended to abrogate the practice
of summing up the evidence, and that it is no longer per-
missible."' In construing this provision for the first time,
the reviewing court said: "The prohibition, 'judges shall
not charge juries in respect to matters of fact,' now stands
alone in section 26, unqualified by the permission to 'state
the testimony,' which permission has been stricken out by
12 Com. V. Barry, 9 Allen (Mass.) 278.
13 Walker v. Laney, 27 S. C. 150; State v. Green, 5 Rich. (S. C.)
65; Richards v. IMunro, 30 S. C. 284; State v. Moorman, 27 S. C. 22;
Moore v. Columbia & G. R. Co., 38 S. C. 1; Massey v. Wallace, 32
S. C. 149; Benedict v. Rose, 16 S. C. 630; Woody v. Dean, 24 S. C.
505; Davis v. Elmore, 40 S. C.,533.
" Const. S. C. 1895, art. 5, § 26.
15 Const. S. C. 1895, art. 5, § 26.-
ifNorris v. Cllnkscales, 47 S. C. 488; State v. Stello, 49 S. C. 488;
Burnett v. Crawford, 50 S. C. 161.
(132)
Ch. 5] SUMMING UP EVIDENCE. § 54
amendment; and any direct reference to the testimony in
charging 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 principles 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 char-
ging the law of the case, should lay before the jury that
law as applicable to a supposed state of facts, but that
in so doing he should carefully avoid repeating the evidence
on the facts at issue, making no statement of the testimony,
either in whole or in part."-*^ An instruction: "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
G. 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 twen-
ty years and upwards ? They cannot now come into court
and ask that he be disturbed," — is in "violation of article 5,
§ 26, of the constitution."^^
The Arkansas constitutional provision declares that "judges
shall not charge juries with regard to matters of fact, bat shall
declare the law." This provision is identical with that of the
iTNorris v. Clinkscales, 47 S. C. 488.
18 Burnett v. Crawford, 50 S. C. 168. Asking the jury whether a
■witness has testified to certain facts which have in fact been testi-
fied to by the witness is a violation of the constitution of South
Carolina, providing that "judges shall not charge juries in respect
to matters of fact, but shall declare the law." State v. Stello, 49
S. C. 488. But a statement of facts in hypothetical form for the
purpose of declaring the law applicable to the case, the evidence not
being recited, is not a violation of the amended constitutionai pro-
vision. Jenkins v. Charleston St. Ry. Co., 58 S. C. 373.
(133)
g 54 INSTRUCTIONS TO JURIES. [Ch. 5
amended constitution of South Carolina;^' and it has been
said that the provision in effect prohibits the trial judge from
summing up as at common law.^"
In Texas, a statute prohibits the court from summing up
the evidence in criminal cases,^^ and this prohibition is
rigidly enforced by the courts. ^^
In Mississippi, the statute provides that "the judge
* * * shall not sum up or comment on the testimony ;"^^
and an instruction that, if the jury believe the testimony of
a designated witness (setting out what the testimony was),
they might find for plaintiff, was held erroneous for stating
what that testimony was, that being a matter to be deter-
mined entirely by the jury.**
In Louisiana it was formerly proper for the court to sum
tip the evidence,*'' but, as regards criminal eases, the rule
has been changed by a statute, passed in 1853, which pro-
vided, among other things, that the court "shall abstain from
stating or recapitulating the evidence so as to influence their
[the jury's] decision on the facts. He shall not state or
repeat to the jury the testimony of any witness, nor shall
be give any opinion as to what facts have been proved or
disproved."*^
In Michigan, under a statute requiring the court to in-
struct only as to the law of the case, it is error to state and
review the evidence.*^
i» Const. Ark. art. 7, § 23.
20 Fltzpatrick v. State, 37 Ark. 238.
21 Code Crim. Proc. Tex. art. 715.
22 Hannah v. State, 1 Tex. App. 579 ; Porter v. State, 1 Tex. App.
396; Gibbs v. State, 1 Tex. App. 13.
23 Ann. Code Miss. 1892, § 732.
24 Southern R. Co. v. Kendrick, 40 Miss. 374.
25 State V. Chandler, 5 La. Ann. 489 ; State v. Green. 7 La. Ann. 518.
2«fttate V. Asberry, 37 La. Ann '■ail
!"Comp. Laws Mich. § 10,?43; Renaudv. City of Bay City, 1J4
(134)
Ch. 5] SUMMING UP EVIDENCE. § 55
In Oregon there is a statute prohibiting the trial court
from presenting the facts of a case to the jury.^*
S 55. Necessity of summing up evidence.
At common law, the trial judge was at liberty to comment
on the evidence and state his opinion -as to the weight of
the evidence, or any part thereof ; but this was a matter en-
tirely in his discretion, and he could not be required to
do so.^* In respect to summing up the evidence, the same
rule applied. 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. As was said in one case: "It cannot be traced or
ascertained * * * that any rule of the common law ex-
ists that makes it imperative on a judge to repeat the evi-
dence to the jury. * * * If ^ on the trial of a cause, the
witnesses are numerous, the evidence complicated, and the
main question or principal issue obscured by various and
conflicting testimony, he may, in his discretion, sum up the
whole to the jury, that they may apply it properly, and have
their attention directed to the essential points in controversy.
No judge would ever refuse to impart such assistance when
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 (Mich.) 84 N. W. 3 087.
28 Hill's Ann. Laws Or. § 200. Where the court charges that
there is evidence on behalf of the plaintiff of a fact alleged by- the
plaintjff, and the court also charges that there is evidence on the
part of the defendant to the contrary, the court is merely attempt-
ing to call the attention of the jury to the theories of the respective
parties, and there is no violation of the statute which forbids the
court from presenting the facts of the case to the jury. Smitson
V. Southern Pac. Co., 37 Or. 74.
2» See poet, art. 3, this chapter.
(135)
I 55 INSTRUCTIONS TO JURIES. [Ch. 5
it was requested by a jury, nor would he withhold it in any
case wherein the nature of the evidence or the conduct of
the cause led him to believe that his aid would enable them
to discharge their constitutional functions with more cor-
rectness or facility ; but it must, of necessity, depend on the
circumstances of each ease, 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 unneces-
sary, or the evidence so equally balanced as to make it un-
safe. All these considerations the law has wisely confided
to the sound discretion of the judge."^" In states where the
trial judge still has authority to sum up the evidence, he is
not boimd to do so, on or without request, unless there is
some statutory or constitutional provision which makes it
his imperative duty to do so;''^ but in one jurisdiction the
statute provides 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. "^^ In construing this
statute, the decisions have not been altogether harmonious.
In an early decision it was said 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.^^ In another case, where a request
had been made that the evidence be summed up, the judgment
was reversed because the court did not do so. It is some-
what difficult to determine from the language of the opinion
so state V. Morris, 10 N. C. 390.
»iLowe V. Minneapolis St."Ry. Co., 37 Minn. 283; Wright v. Cen-
tral Railroad & Banking Co., 16 Ga. 46; Morgan v. State, 48 Ohio St.
371; Lannum v. Brooks' Lessee, 4 Hayw. (Tenn.) 121; Ivey v.
Hodges, 4 Humph (Tenn.) 154.
82 Code N. C. § 413.
88 State V. Morris, 10 N. C. 391.
036)
Ch. S] SUMMING UP EVIDENCE. § 56
whether the court considered 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.^* 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 principles of law to them.^^ So 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 conns'" -jn both sides that it need not
be recapitulated.^^
§ 56. Method of summing up — Whether necessary to state all
the evidence.
In summing up, the court is not bound to state all the
evidence that has been brought out during the course of the
trial f^ but, so far as he attempts to sum up the evidence, he
must do so accurately and impartially.^* Neither is the
court bound, in summing up, to notice every position dis-
cussed by counsel. If anything deemed material be omitted,
counsel can call the court's attention to it, and pray an in-
struction.^'' The minuteness with which a trial judge, in
his charge to the jury, shall state the evidence, is to a large
84 State V. Boyle, 104 N. C. 800.
85 state V. Brady, 107 N. C. 822.
36 Wiseman v. Penland, 79 N. C. 197.
sTBorham v. Davis, 146 Pa. 72; State v. Morris, 10 N. C. 388;
Boon V. Murphy, 108 N. C. 187 ; State v. Lipsey, 14 N. C. 485 ; State
v. Haney, 19 N. C. 390; State v. Ussery, 118 N. C. 1177; Kaminitsky
V. Northeastern R. Co., 25 S. C. 53; Allis v. United States, 155 U.
S. 124; People v. McGonegal, 62 Hun (N. Y.) 622; Com. v. Warner,
13 Pa. Super. Ct. 461.
»8Com. v. Warner, 13 Pa. Super. Ct. 461.
»» Simpson V. Blount, 14 N. C. 34.
(137)
§ 56 INSTRUCTIONS TO JURIES. [Ch. S
extent discretionary with him,*" and the court's duty is prop-
erly performed- when he directs the jury's attention to the
principal questions they are called upon to try, and explains
the law applicable thereto.*^ 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 illustrations
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 principles of law or facts which have an important
bearing on the case.*^ He must present the facts on both
sides in such a manner that they will have their fullest legiti-
mate operation.** As was said in one case, there is no
known "rule that compels a court to recapitulate" all the items
of the evide.nce, nor even all bearing upon a single ques-
tion."** "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 examina-
tion of witnesses, are abandoned, sometimes expressly, but
oftener tacitly, because not sufficiently raised by the proof
adduced, or answered by fuller proof on the other side.
* * * To advert to everything that has thus occurred
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."*^ It is undoubtedly the better prac-
tice, in recapitulating the evidence, to divest it of all im-
*o Fowler v. Smith, 153 Pa. 639; Borham v. Davis, 146 Pa. 72;
State V. Morris, 10 N. C. 388.
Harris v. State, 36 Ark. 127.
(201)
I 87 INSTRUCTIONS TO JURIES. Ch. 7
executory contract of sale, especially ^¥llere there is no evi-
dence * * * to prove the latter."^^ So, where the judge
charged the jury that, if a note was given in consideration of
a compromise, the consideration was a good one, and it did
not appear from the statement of facts that any such evidence
was before the jury, this was also held erroneous.^^ "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 recovery.'"'* 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 erroneous, if there is no evidence of what was the consid-
eration of the note.^^ So, a charge as to the effect of a con-
tract is erroneous, where there is no evidence of such con-
tract.®* In an action for death by wrongful act, where the
negligence of deceased was clearly the proximate cause of ,
death, if he was guilty of negligence, it was error to charge
that, if the negligence of deceased was only the remote cause
of the injury, plaintiff might recover.®^ Instructions asked
by the defendant with reference to an alleged confession made
by him, and admitted in evidence, are properly refused when
there is nothing in the record showing the nature of the con-
fession, to whom made, its extent, or whether corroborated or
not.®^ "Where a plaintiff complains of personal violence as
the cause of a physical disability, and no evidence is given in
66 Seckel v. Scott, 66 111. 106.
57 Kelso V. Townsend, 13 Tex. 140.
58 Biglow V. Carney, 18 Mo. App. 534.
00 Webster College v. Tyler, 35 Mo. 268.
60 Locke V. Priestly Express Wagon & Sleigh Co., 71 Mich. 263.
61 Chicago, K. & W. R. Co. v. Proutv 55 Kan. 503.
62 Dodge V. People, 4 Neb. 220.
(202)
Ch. 7] RELATION TO PLEADINGS, ETC. § 88
support of any other theory, it is error to give the jury to un-
derstand that they may find that the violence aggravated a
pre-existing disability.""^ ISTumerous other illustrations of
the rule under discussion are set out below in the notes.**
§ 88. Same — Stating exceptions to general rules announced in
other instructions.
An instruction which lays down a general rule of law ap-
es campau V. North, 39 Mich. 607.
«^Aii instruction authorizing the jury to allow damages for cer-
tain elements of injury which there is no evidence to show were
suffered by the plaintiff is erroneous. Smith v. Wilmington &
W. R. Co., 126 N. C. 712; Cicero & P. St. Ry. Co. v. Richter, 85
111. App. 591; Wilkie v. Raleigh & C. P. R. Co., 128 N. C. 113;
Judd V. Isenhart, 93 111. App. 520. Instructions that the plaintiff
cannot recover damages for consequences of defendant's wrong,
which the plaintiff might have prevented, are erroneous, and may
be refused when there was no evidence to show how the plaintiff
could have avoided the damage. Central of Georgia Ry. Co. v.
•Windham, 126 Ala. ,552. The court need not charge upon con-
tributory negligence where there is no evidence of it. City of
Covington v. Diehl, 22 Ky. Law. Rep. 955; Rinard v. Omaha, K.
C. & B. Ry. Co. (Mo.) 64 S. W. 124. In an action for personal in-
juries, an instruction that the defendant is not liable for the mis-
takes of a doctor called in to care for the injuries may be refused
when there is no evidence of any such mistakes. Hicks v. South-
ern Ry. Co. (S. C.) 38 S. E. 725.. The court should not, without
testimony on that subject, convey to the jury its impression that
the character of the accused is such as to raise an inference of
likelihood of his participation in just such violations of law as are
charged in the indictment. Mullen v. United States (C. C. A.) 106
Fed. 892. On an indictment for murder, when the defense is in-
sanity, it is error to charge the jury to be careful not to suffer an
ingenious counterfeit of insanity to prevail, in the absence of any
evidence tending to show a counterfeit of insanity. Sharkey v.
State, 2 Ohio Cir. Dec. 443. An instruction in a criminal case which
misstates evidence of the state's witnesses by positively limiting
the commission of an offense to a certain day is properly refused.
Frost V. State, 124 Ala. 71. In the absence of- any evidence as to
self-defense, the court need not and should not charge thereon.
(203)
I 88 INSTRUCTIONS TO JURIES. [Ch. 7
plicable to the testimony, but which does not also state that
the rule is subject to exceptions within which the evidence
fairly tends to bring the case, is misleading f^ but if there is
no such evidence, the giving of such instruction is unneces-
sary and erroneous.®* 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.®''
Com. V. Rudert (Ky.) 60 S. W. 489; Castlin v. State (Tex. Cr. App.)
57 S. W. 827. An instruction requested in an action for dam-
ages to property, that if any part of the property claimed to have
been injured was covered by a bill of sale executed by plaintiff,
plaintiff cannot recover for injury to such part of his property,
is properly refused on the ground that the bill of sale is not
in evidence. Fletcher v. South Carolina & G. E. R. Co., 57 S.
C. 205; Murphy v. Farley, 124 Ala. 279. In an action against a
railroad company to recover for injuries to a servant, the court,
upon the question ef alleged negligence of a coemploye, instruct-
ed that, in arriving at a conclusion as to whether the train was*
being run carefully, the jury should consider the evidence tend-
ing to show what is careful running on roads in ordinary condi-
tion. It was held that, although the road In question was merely
a spur track, used for a special purpose, the instruction could not
be regarded as misleading. The instruction merely suggests a
comparison. But while the Instruction is technically correct, It
would seem to be separated by .a very narrow line from those in-
structions which tend to entrap the jury. Stetler T. Chicago &
N. "W. Ry. Co., 49 Wis. 609.
eo White v. Thomas, 12 Ohio St 312.
eoReinback v. Crabtree, 77 111. 182; Fulwider v. Ingels, 87 Ind.
414. See, also, Hadlock v. Brooks (Mass.) 59 N. E. 1009, wherein
it was held, under the evidence, that it was not necessary to state
the whole law of champerty.
6T Webb V. Robinson, 14 Ga. 216. Where the court has instructed
that a person cannot recover for damages Which he permits to go
on without making every reasonable effort to have the damages
stopped, it is reversible error to add, without evidence to sustain
the qualifying clause, "unless the jury further believe from the
evidence that defendant directed the plaintiff not to do so," since,
(204)
Ch. 7] RELATION TO PLEADINGS, ETC. § 90
§ 89. Same — Withdrawn or excluded evidence.
Evidence which has been admitted and subsequently with-
drawn, or which has been excluded when offered, cannot be
considered by the jury for any purpose, and it is therefore
error to give instructions based upon such evidence.**
§ 90. Same — Sufficiency of evidence to support instructions.
It has already been seen that the weight and sufficiency of
the evidence to establish a fact in issue is a question exclu-
sively within the province of the jury to determine."* Ac-
cordingly, while the. court should not give an instruction
where there is no evidence to sustain it, the court should not
decline to give an instruction merely because it is of the opin-
ion that the evidence is insufficient to establish the fact, as
to do so would invade the province of the jury.''" If there is
any evidence whatsoever upon which the jury might base a
finding, even though such evidence is slight, it is sufficient
to sustain an instruction,'^^ and it will be error for the court
if the instruction applies to no particular item of damages, it is
impossible to say how much of the damages awarded was due to
the qualifying clause. Hartford Deposit Co. v. Calkins, 186 111. 104,
reversing 85 111. App. 627.
68 Atkinson v. Catcher, 23 Ark. 101; Pleasants v. Scott, 21 Ark.
371; Com. v. Cosseboom, 155 Mass. 298; Caldwell v. Stephens, 57
Mo. 589; McKinzle v. Hill, 51 Mo. 303; New York & C. Mining
Syndicate & Co. v. Fraser, 130 U. S. 611; Hayes v. Kelley, 116
Mass. 300.
«» See ante, c. 2, "Province of Court and Jury."
To-peoria, D. & E. Ry. Co. v. Puckett, 42 111. App. 642; Union
Mut. Life Ins. Co. v. Buchanan, 100 Ind. 73; Boots v. Canine, 94
Ind. 408; Bradford v. Pearson, 12 Mo. 71.
71 City of Chicago v. Scholten, 75 111. 468; Milliken v. Marlin,
66 111. 13; Thompson v. Duff, 119 111. 226; "Walker v. Camp, 69
Iowa, 741; Brannum v. O'Connor, 77 Iowa, 632; McNeill v. Arnold,
22 Ark. 477; Goodell v. Bluff City Lumber Co., 57 Ark. 203; Frank
V. Frank (Tex. Civ. App.) 25 S. W. 819; McFadden v. Ferris, 6
Ind. App. 454; Union Mut. Life Ins. Co. v. Buchanan, 100 ^nd.
(205)
§ 90 INSTRUCTIONS TO JURIES. [Ch. 7
to refuse to give a requested instruction based upon such .evi-
denced^ An instruction may be based upon a fact of which
there is no direct evidence, if circumstances are proven from
which the fact may reasonably be inferred. ''* In order to re-
quire the submission of a hypothetical case to the jury, the
court need not be satisfied that it is fully sustained by the tes-
timony. It is only necessary that the evidence shall tend to
sustain the hypothetical case.''* It must not be understood
63; Honesty v. Com., 81 Va. 283; Hazell v. Bank of Tipton, 95
Mo. 60; Camtp v. Phillips, 42 Ga. 289; Knowles v. Ogletree, 96
Ala. 555; Jones v. Port, 36 Ala. 449; Bradford v. Marbury, 12 Ala.
520; Partridge v. Forsyth, 29 Ala. 200; Atkins v. Gladwish, 27 Neb.
841; State v. Bzzard, 40 S. C. 312; Allston v. Pickett, 19 S. C. 606;
Morton v. O'Connor, 85 111. App. 273; Dingee v. Unrue's Adm'x, 98
Va. 247; Harris v. State, 155 Ind. 265; Fant v. Wright (Tex. Civ.
App.) 61 S. W. 514; Davis v. Bond, 84 Mo. App. 504; Jackson v.
State (Tex. Cr. App.) 61 S. W. 404. 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 in-
struct 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 applicable to it, if requested to do so, even
though the evidence is so slight as to be insuflficient to support a
verdict founded upon it. Southern Ry. Co. v. Wilcox (Va.) 39 S. B.
144. Where a statute was introduced in evidence without objection,
it was not error to give an instruction 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, although the evidence is
confiicting upon only one issue, where there was no agreement or
request that only such issue should be submitted, and the defend-
ant has put in issue the whole of plaintiff's case. Halsell v. Neal,
23 Tex. Civ. App. 26.
'2 Kane v. Torbit, 23 111. App. 311; Chicago & A. R. Co. v. Calkins,
17 Bradw. (111.) 55; Ridens v. Ridens, 29 Mo. ^70; De Camp v. Mis-
sissippi & M. R. Co., 12 Iowa, 348; Peoria, D. & E. Ry. Co. v. Puck-
ett, 42 111. App. 642; State v. Wright, 112 Iowa, 436; Squires v.
Gamble-Robinson Commission Co. (Minn.) 86 N. W. 616.
73 Chicago, R. I. & P. Ry. Co. v. Lewis, 109 111. 134.
'4 Chicago, R. I. & P. !Ry. Co. v. Lewis, 109 111. 134.
(206)
Ch. 7] RELATION TO PLEADINGS, iST(J. § yi
from what has been said, however, that it is necessary or even
proper for the court to give instructions based on testimony
which, at most, raises a mere possibility or conjecture.'"' It
is not easy to draw the line between a total absence of evi-
dence to prove a fact, and evidence confessedly slight ; but it
seems that, if the evidence is of such a nature that reasonable
men might draw an inference therefrom, the court should in-
struct the jury in regard to it.'"^ The question here is sub-
stantially the same as where the court is asked to direct a
verdict, and authorities upon that subject are relevant hereJ^
§ 91. Same — ^Violation of rule as ground for reversal.
The giving of an instruction not supported by the evidence
76 Sutton V. Madre, 47 N. C. 320; Cawfield v. Asheville St. Ry.
Co., Ill N. C. 597; O'Connor & Harder Range & Furnace Co. v.
Alexe, 28 Mo. App. 184; Bloyd v. Pollock, 27 W. Va. 75; Cobb v.
Fogalman, 23 N. C. 440; Dickerson v. Johnson, 24 Ark. 251; Par-
lin & OrendorfE Co. v. Miller (Tex. Civ. App.) 60 S. W. 881; Saun-
ders V. Whitcomb, 177 Mass. 457. Evidence whicli merely shows
that a minor was present at the time a burglary was committed
is insufficient to support an instruction stating the law as to an
accomplice 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 estimating damages, the plaintiff's age is to be taken into con-
sideration. 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 nearly 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. Lemas-
ters V. Southern Pac. Co., 131 Cal. 105.
70 Peoria, D. & E. Ry. Co. v. Puckett, 42 111. App. 642; Bishop v.
State, 43 Tex. 402; Chicago, B. & Q. R. Co. v. Gregory, 58 111.
272; Missouri Furnace Co. v. Abend, 107 111. 44; Morton v. O'Con-
nor, 85 III. App. 273; Wahlgren v. Market St. Ry. Co., 132 Cal. 656.
77 See ante, § 5, "Directing Verdict."
r207)
§ 91 INSTRUCTIONS TO JURIES. [Ch. 7
is suiScient ground for reversal where it appears that such
instruction misled, or might have misled, the jury, to the
prejudice of the party complaining.''* Where the instruc-
tions, as a whole, are abstract and inapplicable to the facts
in issue, the judgment will be reversed.'^ If an instruction
submits an issue not warranted by the evidence,*" or is based
on facits not in evidence,*^ or is so worded as to lead the jury
78 Case V. Illinois Cent. R. Co., 38 Iowa, 581; Lee v. Newell, 107
Pa. 283; Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Ward v. Henry,
19 Wis. 76; People v. Devine, 95 Cal. 227; Webber v. Brown, 38
111. 87; Reeder v. Purdy, 41 111. 279; King v. Barnes, 30 111. App.
339; Nicklaus v. Burns, 75 Ind. 93; Crowder v. Reed, SO Ind. 1;
State Sav. Ass'n of St. Louis v. Hunt, 17 Kan. 532; Raper.v. Blair,
24 Kan. 374; Missouri Pac. Ry. Co. v. Pierce, 33 Kan. 61; Zimmer-
man V. Knox, 34 Kan. 245; Robards v. Wolfe, 1 Dana (Ky.) 156;
Hopfeins V. Fowler, 39 Me. 568; Weston v. Higgins, 40 Me. 102;
Cravens v. Wilson, 48 Tex. 324; Thrasher v. State, 3 Tex. App.
281; Yarborough v. Tate, 14 Tex. 483; Bsterly Harvesting Mach.
Co. V. Frolkey, 34 Neb. 110; Williams v. State, 6 Neb. 334; Curry
V. State, 4 Neb. 545; Clark v. State, 32 Neb. 246; High v. Mer-
chants' Bank, 6 Neb. 155; Harrison v. Baker, 15 Neb. 43; Cross-
man v. Harrison, 4 Rob. (N. Y.) 38; Pasley v. English, 10 Grat.
(Va.) 236.
79 Fisher v. Central Lead Co., 156 Mo. 479.
80 Cottrell V. Spiess, 23 Mo. App. 35; Cook v. Dennis. 61 Tex.
246; Blanton v. Mayes, 58 Tex. 422; Lee v. Hamilton, 12 Tex. 413;
Austin v. Talk, 20 Tex. 164; Andrews v. Smithwick, 20 Tex. Ill;
Corzine v. Morrison, 37 Tex. 511; Philadelphia, W. & B. R. Co. v.
Alvord, 128 Pa. 42. Where a statute is more stringent in its regu-
lations as to the safeguards to be provided by railroad companies
at crossings and at other places, it is error, in an action against
a railroad company for injuries 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 distance from it. Sims v.
Southern Ry. Co., 59 S. C. 246.
81 Bowles V. Lewis, 58 Mo. App. 649; State v. Bailey, 57 Mo.
131; Musick v. Atlantic & P. R. Co., 57 Mo. 134; Waddingham v.
Hulett, 92 Mo. .528; Stokes v. Ravenswood Distillery Co., 2 Mo.
App. Rep'r, 1093; Livingston v. Hudson, 85 Ga. 835; Ashworth v.
East Tennessee, V. & G. Ry. Co., 94 Ga. 715; Denver & R. G. R.
Co. V. Robinson, 6 Colo. App. 432; Rara Avis Gold & Silver Mln.
(208)
Ch. 7] RELATION TO PLEADINGS, ETC. § 91
to infer the existence of a state of facts entirely at variance
with the evidence,^^ the error will almost invariably be con-
sidered a ground for reversal. The following cases illustrate'
this principle: On a criminal prosecution it was held re-
versible 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 intoxication would be no ex-
cuse, there being no evidence that he became intoxicated for
such purpose.®* So, in an action for damages, caused by the
alleged negligence of the defendant railway company, it was
held rev*erSible error to charge as to the duty of the compatty
in the selection and retention of its employes, where there was
no evidence or issue as to that subject to submit to the juty.**
In another action for personal injuries sustained while cross-
ing defendant's track, the court charged the jury as to the
duties of railroad companies in operating trains over public
crossings, and stated that a "failure to comply with those re-
quirements 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 in-
jured was not a public crossing.^*
Co. V. Bouscher, 9 Colo. 385; State Bank v. Hubbard, 8 Ark. 183;
Goldsmith v. McCafferty, 101 Ala. 663; Long v. Bakle, 4 Md. 454;
Marshall v. Haney, 4 Md. 498; Briggs v. Fireman's Fund lis. Co.,
65 Mich. 52; Sheehy v. Flaherty, 8 Mont. 365; Clark v. State, 32
Neb. 246; Atchison, T. & S. F. Ry. Co. v. Click, 5 Tex. Civ. AKp.
2^4; Harrell v. Houston, 66 Tex. 278; Wilson v. State (Tex. Cr.
App.) 34 S. W. 284; Irwin v. Atkins, 8 111. App. 221; Martin T.
Union Mut. Ins. Co., 13 Wash. 275; Black v. Brooklyn City R. Co.,
108 N. Y. 640; King v. Wells, 94 N. C. 344; Illinois Cent R. Co.
V. Hileman, 53 111. App. 57.
82 Caw V. People, 3 Neb. 357.
83 Clark V. State, 32 Neb. 246.
84 Houston & T. C. Ry. Co. v. Gilmore, 62 Tex. 391.
85Ashworth V. East Tennessee, V. & G. Ry. Co., 94 Ga. 715, 20
S. E. 424.
(209)
14 — Ing. to Juries.
§ 91 INSTRUCTIONS TO JURIES. [Ch. 7
Altliougli a charge is predicated on a state of facts not sus-
tained by the evidence, this will not wa'rrant a reversal of the
case if it is not likely to mislead the jiiry, to the prejudice of
the party complaining.** The giving of instructions which
consist in mere abstract and general propositions of law which
could not arise upon the testimony will not, in general, be
ground for reversal,"''^ unless it satisfactorily appears that,
the jury was misled, to the prejudice of the party complain-
ing.®* 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 pointing out well-known distinc-
tions,*^ or to illustrate and emphasize rules governing the
seOulf, C. & S. F. Ry. Co. v. Greenlee, 70 Tex. 553; Hall ▼.
Stewart, 58 Iowa, 681; Thomas v. Ingrain, 20 Tex. 727; People v.
Cochran, 61 Cal. 548; Petrie v. Columbia & G. R. Co., 29 S. C
303; Daniels v. Western & A. R.- Co., 96 Ga. 786; Waters v. Shafer,
25 Neb. 225; Labaree v. Klosterman, 33 Neb. 150; Berry v. Missouri
Pac. Ry. Co., 124 Mo. 223; State v. Durbln, 22 La. Ann. 154;
Mason v. Southern Ry. Co., 58 S. C. 70. The glvipg of an instruc-
tion stating 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 instruction. Reed
v. Com., 98 Va. 817.
87 Caw V. People, 3 Neb. 357; Salomon v. Cress, 22 Or. 177; Mc-
Gregor v. ArmlU, 2 Iowa, 30; Ward v. Henry, 19 Wis. 76; Proctor
V. Hart, 5 Fla. 465; People v. March, 6 Cal. 543; State v. Johnson,
33 La. Ann. 889; Lee v. Merrick, 8 Wis. 229; State v. Canty. 41
La. Ann. 587; Benjamin v. Metropolitan St. Ry. Co., 133 Mo. 274;
Schaungut's Adm'r v. Udell, 93 Ala. 302; Payne v. Crawford, 102
Ala. 387; Creed v. Commercial Bank of Cincinnati, 11 Ohio, 489;
Reed v. McGrew, 5 Ohio, 375; Upstone v. People, 109 111. 169; Mo-
Cutchen v. Loggins, 109 Ala. 457.
88 Bernstein v. Humes, 71 Ala. 260; Herring v. Skaggs, 73 Ala.
446; Pittsburg, Ft. W. & C. R. Co. v. Slusser, 19 Ohio St. 157.
89 McGrew v. Missouri Pac. Ry. Co., 109 Mb. 582.
(210)
Ch. 7] RELATION TO PLEADINGS, ETC. § 92
relations of the parties, and their respective rights and re-
sponsibilities.^" An instruction stating a correct proposition
of law is not necessarily misleading, although it refers in
no way to the evidence.^^ So, where an instruction is based
on a state of facts not in evidence, but favorable to the ap-
pellant, he has no right to complain of the giving of such
instruction;^- 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.®* So, an instruc-
tion which is outside of the issues raised by the pleadings will
not be a ground for reversal if it is favorable to the party com-
plaining."*
§ 92. Necessity of concrete application to facts of case.
It is not the proper course for a judge to lay down the gen-
eral principles of law applicable to a case, and leave the jury
to apply them ; but it is his duty to inform them what the
law is as applicable to the facts of the case.®'' An instruo-
80 West Memphis Packet Co. v. White, 99 Tenn. 256. See, also.
Mason v. Southern Ry. Co., 58 S. C. 70. A definition of "probable
cause," given merely as an illustration, and having no practical
application to the case, is not ground for reversal. Baker v. Hor-
nick, 57 S. C. 213.
»i Bosqui v. Sutro R. Co., 131 Cal. 390. An instruction that
national bank notes are not money for the purpose of tender states
the law, and cannot be prejudicial, although the evidence contained
no reference to bank notes. Chicago, I. & E. Ry. Co. v. Patterson,
26 Ind. App. 295.
»2 Johnson v. McKee, 27 Mich. 471; Ft. Worth & D. C. Ry. Co.
V. Peters, 7 Tex. Civ. App. 78.
83 Spears v. Town of Mt. Ayr, 66 Iowa, 721.
»* Miller v. Root, 77 Iowa, 545; Paretti v. Rebenack, 81 Mo.
App. 494.
86 Morris v. Piatt, 32 Conn. 82; State v. Stouderman, 6 La. Ann.
286; State v. Jones, 87 N. C. 547; State v. Boon, 82 N. C. 637;
Hargis v. St. I.ouis, A. & T. Ry. Co., 75 Tex. 19; Ocean Steamship
(211)
I 92 INSTRUCTIONS TO JURIES. [Ch.
tion, however pertinent and applicable it may be, is abstract
unless it be made to apply, in express terms, either to the at-
titude of the parties or to the very facts in issue.®® "It
Co. V. McAlpin, 69 Ga. 441; Louisiana Extension Ry. Co. v. Carstens,
19 Tex. Civ. App. 190; Baldwin v. State, 75 Ga. 489; Brown v.
Wilson, 1 Litt. (Ky.) 232; Seekel v. Norman, 71 Iowa, 264; State
V. Glynden, 51 Iowa, 463; Mason v. Silver, 1 Alk. (Vt.) 367; State
V. McDonnell, 32 Vt. 491; East Tennessee, V. & G. R. Co. v. Duf-
field, 12 Lea (Tenn.) 63; Memlphis City Ry. Co. v. Logue, 13 Lea
(Tenn.) 32; Chicago & A. R. Co. v. Utley, 38 111. 410; Heimann
V. Kinnare, 73 III. App. 184; Illinois Cent. R. Co. v. McClelland,
42 111. 355; Hite v. Blandford, 45 111. 9; Hassett v. Johnson, 48
111. 68; Atkinson v. Lester, 1 Scam. (111.) 407; State v. Pike, 65
Me. Ill; Ward v. McCue, 31 Pa. Law J. 160; Shinn v. Tucker, 37
Ark. 580; McKnight v. Ratcliff, 44 Pa. 156; Rider v. Maul, 70 Pa.
15; Hand v. Central Pa. Tel. & Co., 1 Lack. Leg. News
(Pa.) 351. This principle is well illustrated by the following case:
In a prosecution for an assault, defendant offered evidence to show
that he was assailed by plaintiff and others in a manner which
indicated a desire to take his life, that he was in great danger
of losing his life by the attack, and that he committed the injuries
complained of in self-defense. Defendant requested the court to
charge that, if the jury found these facts proved as claimed, de-
fendant would be justified, in self-defense, to act as he did; "that
the rule of law is 'that a man may lawfully take the life of an-
other who is unlawfully assailing him, if in imminent peril of
losing his life or suffering extreme bodily harm.' " The charge
did not conform to the request, but, as given, informed the jury
what "the great principle" of self-defense is. The reviewing court
said: "But that was not all to which the defendant was entitled.
It Is not for juries to apply 'great principles' to the particular state
of facts claimed and found, and thus make the law of the case.
When the facts are admitted, or proved and found, it Is for the
court to say what the law as applicable to them Is, and whether
or not they furnish a defense to the action, or a justification fer
the Injury, if that be the issue." Morris v. Piatt, 32 Conn. 75.
96 Clarke v. Baker, 7 J. J. Marsh. (Ky.) 197; Metcalfe v. Conner,
Litt. Sel. Cas. (Ky.) 370. In a hypothetical 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 es-
sential to the validity of the hypothesis, — It is not necessary to In-
(212)
Ch. 7] RELATION TO PLEADINGS, ETC. § 92
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 abstract 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."*^ It has been said in one case that noth-
ing is more dangerovis 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.®*
There is some conflict of authority as to whether 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. In jurisdictions where the court is re-
quired, by express statutory provision, to apply the principles
of law to the facts of the case in charging the jury, it is held
reversible error to give instructions which deal in mere gen-
eralities and abstractions f^ and in other jurisdictions, where
no such statutes exist, judgments have been reversed for in-
structions defective in this regard.^"" In some cases it has
been held that the (giving of such instructions is not a sufii-
cient ground for reversal,^"^ and, in others, that error can-
clude the subsidiary and evidential facts. Hutchinson v. Wenzel,
155 Ind. 49. '
97 East Tennessee, V. & G. R. Co. v. Toppins, 10 Lea (Tenn.) 64.
IS Gorman v. Campbell, 14 Ga. 142.
09 State V. Jones, 87 N. C. 547.
100 Morris v. Piatt, 32 Conn. 82; Mason v. Silver, 1 Aik. (Vt.)
367; Fisher v. Central Lead Co., 156 Mo. 479.
101 Little v. Munson, 54 111. App. 437; New Orleans Ins. Co. v.
Piaggio, 16 Wall. (U. S.) 378; Axtell v. Caldwell, 24 Pa. 88; Tay-
lor V. Felslng, 164 111. 331.
(213)
g 92 INSTRUCTIONS TO JURIES. [Oh. 7
not be assigned because of the giving of such instructions, up-
less more specific instructions are requested.'"^ The correct
rule would seem to be that, if the facts of the case are volu-
minnus and complicated, or of such nature that a body of men
unacquainted with the law would find difiiculty in applying
to the facta a general principle of law, the judgment should
be reversed if the instructions given consist merely in a state-
ment 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 instruction.'^''^
The rule that an instruction is improper which is expressed
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.^"* So it has been held, very properly,
that the giving of an abstract instruction, which correctly
states the law applicable to the case at bar, cannot be assigned
for error, where it is followed immediately by an instruction
102 Bast Tennessee, V. & G. R. Co. v. Topplns, 10 Lea (Tenn.)
58; Hansen v. Gaar, Scott & Co., 68 Minn. 68; Kleintobb v. Trescott,
4 Watts (Pa.) 301. See Villereal v. State (Tex. Cr. App.) 61 S.
W. 715. Compare Seekel v. Norman, 71 Iowa, 264, where it was
held that where an abstract rule of law, though correct, may be
misleading, in the absence of instructions for its application, such
instructions should be given by the court, even though not asked
for by a party. In this state the court is required by statute to
state all the law applicable to a case, even though not requested.
See, generally, post, c. 13, "Requests for Instructions."
103 Since, presumptively, an erroneous proposition of law, refer-
ring in no way to the evidence in the case submitted to the jury, is
not prejudicial, it must follow that a correct proposition of law,
not based upon the evidence, will not necessarily mislead the jury.
Bosqui v. Sutro R. Co., 131 Cal. 390.
104 Vigus V. O'Bannon, 118 111. 334.
(214)
Ch. 7] RELATION TO PLEADINGS, ETC. § 92
applying the law thus stated to the faets,^"'' or where, taken in
connection with the other instructions, the charge advises the
jury concerning the evidence applicable to the issues clearly
and in the concrete.-'"®
losMcGrew v. Missouri Pac. Ry. Co., 109 Mo. 582; First Nat.
Bank of Springfield v. Gatton, 71 111. App. 323.
106 Denver Tramway Co. v. Owens, 20 Colo. 107; Blackwell v.
Lynchburg & D. R. Co., Ill N. C. 157.
(215 ^
CHAPTER VIII.
STATING ISSUES TO JURY.
S 93. Statement of Kuje.
94. Illustrations of Rule.
95. Exceptions to Rule.
96. How Issues should be Stated.
97. Erroneous Statement of Issues.
98. Incomplete Statement of Issues.
99. Withdrawal of Issues.
9 93. Statement of rule.
What issues are raised by the pleadings is a question of law
which it is the exclusive province of the court to determine.
Accordingly, it is usually held to be the duty of the court to
instruct the jury as to the issues to be tried, and that it is
error to leave the question to the jury, as by referring them
to the pleadings.^ The view has been presented that, where
lEast Tennessee, V. & G. Ry. Co. v. Lee, 90 Tenn. 570; Myer
T. Moon, 45 Kan. 582; Tipton v. Triplett, 1 Mete. (Ky.) 570; Wilbur
V. Stoepel, 82 Mich. 344; Remmler v. Shenuit, 15 Mo. App. 192;
Hayes v. St. Louis R. Co., 15 Mo. App. 584; Edelmann v. St. Louis
Transfer Co., 3 Mo. App. 503; MoGinnis v. Missouri Pac. Ry. Co.,
21 Mo. App. 399; Cocker v. Cocker, 2 Mo. App. 451; Gessley v.
Missouri Pac. Ry. Co., 26 Mo. App. 156; Fleischmann v. Miller,
38 Mo. App*. 177; Procter v. Loomis, 35 Mo. App. 482; Dassler v.
Wisley, 32 Mo. 498; Blackmore v. Missouri Pac. Ry. Co. (Mo.) 62
S. W. 993; Grant v. Hannibal & St. J. Ry. Co., 25 Mo. App. 227;
Faircloth v. Isler, 75 N. C. 551; Burns v. Ollphant, 78 Iowa, 456;
Sioux City & Pac. R. Co. v. Pinlayson, 16 Neb. 578; Little v. Mc-
Guire, 43 Iowa, 450; Keattey v. Illinois Cent. Ry. Co., 94 Iowa,
685; Lindsay v. City of Des Moines, 68 Iowa, 368; Hollls v. State
Ins. Co.. 65 Iowa, 454; Porter v. Knight, 63 Iowa, 365; Bryan v.
Chicago, R. I. & P. Ry. Co., 63 Iowa, 464; Gorman v. Minneapolis
(216)
Ch. 8] STATING ISSUES TO JURY. § 93
the declaration contains a full statement of the facts, no error
' is committed in referring the jury to the declaration for in-
formation 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,"^ and, according to others, while it is not
error to refer the jury to the pleadings to determine the is-
sues, it is the better practice not to do so,* especially where
the pleadings are voluminous and involved.* Eor the purpose
of conciseness of expression and description, the court may re-
fer to the pleadings, though of course the greatest care must
be exercised not to assume the existence of any controverted
fact to which the description may pertain.^ The right of the
court to state the issues to the jury is not taken away by a
statute forbidding an expression of opinion upon issues of
faet.«
& St. L. Ry. Co., 78 Iowa, 509; Hempstead v. City of Des Moines,
52 Iowa, 303; McKinney v. Hartman, 4 Iowa, 154; Pharo v. John-
son, 15 Iowa, 560; Beebe v. Stutsman, 5 Iowa, 274; Reld v. Mason,
14 Iowa, 541; West v. Moody, 33 Iowa, 137; Hall v. Renfro, 3 Mete.
(Ky.) 51.
2 North Chicago City Ry. Co. v. Gastka, 27 111. App. 518, af-
firmed in 128 111. 613; Sturgeon v. Sturgeon, 4 Ind. App. 232. The
court may read the pleadings to the jury, that they may know
the real Issues in the case. Baltzer v. Chicago, M. & N. R. Co.,
89 Wis. ,257.
s Texas & Pac. Ry. Co. v. Tankersley, 63 Tex. 57; Clouser v.
Ruckman, 104 Ind. 588; Ohio & M. Ry. Co. v. Smith, 5 Ind. App.
560. Where the trial court does not state the issues to the jury
otherwise than by copying the pleadings into the charge, the su-
preme court, though condemning, the practice, and recommending
a different method on a new trial, will not reverse on this ground
alone. McDonald v. Bice (Iowa) 84 N. W. 985..
4 Woodruff V. Hensley, 26 Ind. App. 592, holding that, in such
case, the substance of the issue should he stated.
= Corrister v. Kansas City, St. J. & C. B. Ry. Co., 25 Mo. App. 619;
Brltton V. City of St. Louis, 120 Mo. 437; Myer v. Moon, 45 Kan.
580.
a McLellan v. Wheeler, 70 Me. 285.
(217)
g 94 INSTRUCTIONS TO JURIES. [Ch,
5 94. Illustrations of rule.
In accordance with the general rule stated, it is error to sub-
mit to the jury the question whether the statute of limitations
was pleaded or not/ or to give an instruction which, althougli
not a copy of the pleadings, contains every detail, submits is-
sues not in dispute, and fails to specify the issues about whicli
there was controversy.* Where there is no statement of the
issues in any part of the charge, and the acts of negligence
charged in the petition 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 prej-
udicial error.^ So, in an action for personal injuries, it
is erroneous to instruct as follows : "These wrongs and in-
juries are set out in plaintiff's declaration, which you will
have out with you, and which you will read. In the de-
fendant'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.""
On the other hand, the following instructions have been
7 Bradshaw v. Mayfield, 24 Tex. 482.
8 Erb V. German-American Ins. Co., 112 Iowa, 357.
"Keatley v. Illinois Cent. Ry. Co., 94 Iowa, 685. But In Chicago
6 A. R. Co. V. Harrington, 90 111. App. 638, it was held that an
instruction to the effect that, if the jury believed from the evi-
dence that the injury complained of resulted from defendant's
negligence, as charged in the declaration, the defendant was liable,
was not erroneous for failure to explain the facts from which the
conclusion of the defendant's liability was to be drawn, as it was
sufficient to refer to the declaration in which the facts necessary
to make out plaintiff's case were stated.
10 East Tennessee, V. & G. Ry. Co. v. Lee, 90 Tenn. 570.
(218)
Ch. 8] STATING ISSUES TO JURY. § 94
held not erroneous, as referring the jury to the pleadings for
the issues : "That upon the issue of contributory negligence
of plaintiff, raised by defendant's answer, the burden of proof
is upon defendant."-'^ In an action against a city and a con-
tractor for negligently leaving an excavation open in the
street, an instruction 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 conceded fact in the case. The reference to the petition is
for the purpose of description merely.^^ In an action to re-
cover for injuries received because of careless driving, the
expression, "in direct consequence of the acts herein com-
plained of," is not objectionable as requiring a reference to
the petition to find the issues to be determined, such expres-
sion referring to acts complained of, and mentioned already
in the instructions.-'^ 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.-'* An introductory statement of the
allegations of a pleading, though of unnecessary length, is not
error.-"® In stating the plaintiff's contentions, the court may
properly call the attention of the jury to any allegations of
11 Sherwood v. Grand Ave. Ry. Co., 132 Mo. 339.
i2Britton v. City of St. Louis, 120 Mo. 437.
13 Taylor v. Soherpe & Koken Architectural Iron Co., 133 Mb. 349.
14 Dorr V. Simerson, 73 Iowa, 89; Lake Shore & M. S. Ry. Co.
V. Mcintosh, 140 Ind. 261; Morrison v. Burlington, C. R. & N. Ry.
Co., 84 Iowa, 663; Probert v. Anderson, 77 Iowa, 60; Jenks v.
Lansing Lumber Co., 97 Iowa, 342; Helt v. Smith, 74 Iowa, 667.
15 Atchison, T. & S. P. Ry. Co. v. Cuniffe (Tex. Civ. App.) 57
S. W. 692.'
(219)
§ 96 INSTRUCTIONS TO JURIES. [Uh. 8
the petition whicli have not been demurred to or stricken out,
and which are supported by evidence;^* but merely reading
the pleadings to the jury, without including them in the
charge by copy, is objectionable as, in effect, partly instruct-
ing the jury orally.^^
§ 95. Exceptions to rule.
Where the pleadings are short and unambiguous, it is not
error to quote or refer to them in the instructions without
otherwise stating the issues,^ ^ though, as already stated, where
the pleadings are voluminoixs and involved, it is the better
practice to instruct as to the substance of the issues.-'® So it is
not error to refer to the pleadings merely to shorten the in-
structions, where the essential questions in the case are ap-
parent from the instructions.^* Thus, a reference may be
made to the petition for a fuller statement of the items of
plaintiff's claim.^^ Where the pleadings are stated or re-
ferred to with the assent of the parties, the error, if any, is
waived.**
§ 96. How issues should be stated.
If an instruction sets forth the legal effect of a pleading,
it is sufficient, though it does not set out evidentiary facts,
also pleaded,^^ and, indeed, it is the better practice to do so.-^
16 Macon Consolidated St. R. Co. v. Barnes, 113 Ga. 212.
17 Hall T. Carter, 74 Iowa, 364.
isGrayblll v. Chicago, M. & St. P. Ry. Co., 112 Iowa, 738; Craw-
ford V. Nolan, 72 Iowa, 673.
10 Woodruff V. Hensley, 26 Ind. App. 592.
=0 Corrister v. Kansas City, St. J. & C. B. R. Co., 25 Mo. App.
619.
21 Lanning v. Chicago, B. & Q. Ry. Co., 68 Iowa, 502.
22 Burns v. Oliphant, 78 Iowa, 456. See, also, Sprague v. Atlea
81 Iowa, 1.
23 Murphey v. Virgin, 47 Neb. 692.
2* Trott V. Chicago, R. I. & P. Ry. Co. (Iowa) 86 N. W. 33.
(220)
Ch. 8] STATING ISSUES TO JURY. § 96
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.^* Thus,
the court may state in one instruction the issues as raised by
the pleadings, and in another instruction state that a part of
the case is admitted.^® "It is often difficult to frame a single
instruction which shall embrace all the phases of a compli-
cated case.'"*^ Where the issues have once been stated, a repe-
tition is unnecessary.^* If the issues involved 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.^* The court, in stating
the issues to the jury, need not confine itself to the ex-
press 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;^" but it is, nevertheless, proper to
submit the issues in the terms in which they are raised by the
sBTimins v. Chicago, R. I. & P. Ry. Co., 72 Iowa, 94; Chicago, R.
I. & P. Ry. Co. V. Groves, 56 Kan. 611; Siltz v. Hawkeye Ins. Co., 71
Iowa, 710; Fullerton v. St. Louis, I. M. & S. Ry. Co., 84 Mo. App. 498.
"It is not necessary that the issues be grouped and stated in sepa-
rate paragraphs of the charge, devoted to that purpose alone. It is
enough if the instructions, as a whole, point out the entire issue in
the case." Meyer v. Boepple Button Co., 112 Iowa, 51.
26 Haymond v. Saucer, 84 Ind. 3.
vt Chicago, R. I. & P. Ry..Co. v. Groves, 56 Kan. 611; Muehlhausen
V. St. Louis R. Co., 91 Mo. 332.
28 Richmond v. Sundburg, 77 Iowa, 255.
28 Redus V. Burnett, 59 Tex. 576.
30 Sage V. Haines, 76 Iowa, 581. "It is unnecessary for the court
* * * to state the substance of the matters pleaded by either par-
ty. 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 submitted." Galveston,* H. & S. A. Ry. Co. v. Smith, 24 Tex.
Civ. App. 127.
(221)
§ 97 INSTRUCTIONS TO JURIES. [Oh. 8
pleadings.''^ And thougli the court may have used words not
in the pleadings in submitting the issues, this is not ground
for reversal where no new issue was presented. Where in-
consistent defenses are pleaded, the court may properly in-
struct that both cannot be true.^^ The issues must, of course,
be fairly and impartially stated, and not so as to put an un-
due burden upon either party.^^ It is erroneous to give the
plaintiff's contention without also stating the defendant's con-
tention.^* 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 in-
structions.**
§ 97. Erroneous statement of issues.
A misstatement of the issues of a case in an instruction is,
of course, erroneous;*® and when, in consequence of a mis-
statement of the issues, an instruction has a tendency to con-
fuse and mislead the jury, it is a ground for a new trial.*^
Thus, 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
31 Hess V. Newcomier, 7 Md. 325; Planters' Bank of Prince George's
Co. V. Bank of Alexandria, 10 Gill & J. (Md.) 346; Atchison, T. &
S. F. Ry. Co. V. Cuniffe (Tex. Civ. App.) 57 S. "W. 692.
32McGowan v. Larsen (C. C. A.) 66 Fed. 910.
33 Short V. Kelly (Tex. Civ. App.) 62 S. "W. 944.
34 Brown v. Everett Ridley Ragan Co., Ill Ga. 404.
35 Hall V. Carter, 74 Iowa, 364.
36 Galloway v. Hicks, 26 Neb. 531, Marquette, H. & O. R. Co. v.
Marcott, 41 Mich. 433; Klosterman v. Olcott, 27 Nob. 685; Howell v.
Sewing Machine Co., 12 Neb. 177; Reed v. Gould, 93 Mich. 359; Staf-
ford V. City of Oskaloosa, 57 Iowa, 748; Harley v. Meriill Brick Co.,
83 Iowa, 73; Hall v. Woodin, 35 Mich. 67; Fuhs v. Osweiler,.59 Iowa,
431.
37 Howell V. Sewing Machine Co., li Neb. 177.
(222)
Ch. 8] STATING ISSUES TO JURY. § 97
held reversible error.^* So, it is reversible error for the
court to submit a case to the jury upon a theory entirely dif-
ferent from that claimed in the declaration, and upon which
the case has been tried.^' And "where the evidence tends to
show a promise, by way of guaranty, to make good the obli-
gation of others, it is error to submit the case to the jury as
one of an absolute and original promise to pay."*" It has been
held, on the other hand, that where a locomotive engineer is
charged with negligence in backing up his engine too fast,
and the instruction 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.'**
If no prejudice results from a misstatement of the issues,
it is not ground for reversal.*^ Thus, the fact that the court,
in stating the issues to the jury, confounds the action of tres-.
pass with trespass on the case, will not warrant a reversal.*^
And where an instruction submits one question which did
not arise under the pleadings, but the issues were properlv
submitted in other instructions, and it is clear that the ques-
tion 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.** A charge cannot be attacked as erro-
neous for misconstruing a pleading, if such misconstruction
cannot affect the substantial rights of the party objecting.
Thus, in ejectment, where defendant's answer admits plain-
tiff's title, thus, prima facie at least, admitting plaintiff'^!
right to possession, an instruction that defendant admitted
»8 Klosterman v. Olcott, 27 Neb. 685.
39 Reed V. Gould, 93 Mich. 359.
40 Hall V. Woodin, 35 Mich. G7.
" Beems v. Chicago, R. I. & P. R. Co., 58 Iowa, 150.
42 Stark V. Willetts, 8 Kan. 203.
*3 Brown v. Hendrickson, 69 Iowa, 749.
44 Newton v. Ritchie, 75 Iowa, 91.
(223)
g 99 INSTKUCTIONS TO JURIES. [Ch. 8
plaintiff's right to possession is not error, in the absence of
any attempt on the part of defendant to show that plaintiff
did not have such right of possession.**
§ 98. Incomplete statement of issues.
Where the court undertakes to state the issues, it should
do so fully, in order that the jury may intelligently pass upon
the case,*^ though it has been held that an incomplete state-
ment of the issues is not ground for reversal, unless the party
complaining requested an instruction correctly stating the is-
sues.*' An instruction which purports to enumerate all the
material elements which a party must prove in order to main-
tain his action or support his defense must be correct and
complete, and, if any essential element is omitted, the error
is ground for reversal.** Such error has an obvious tendency
to mislead the jury.
§ 99. Withdrawal of issues.
Where there is no evidence to sustain an issue raised in
the petition, the court may properly withdraw the issue from
the consideration of the jury.*® Issues which have been
abandoned or conceded, and are no longer in dispute, should
" Stark V. Wllletts, 8 Kan. 203.
*6 Potter V. Chicago, R. I. & P. R. Co., 46 Iowa, 402. Thus it is
erroneous to omit reference to a material issue in the case, as, for
instance, the issue of contributory negligence. Gamble v. Mullin,
74 Iowa, 99.
«7 Sioux City & Pac. R. Co. v. Finlayson, 16 Neb. 578.
*8 Jackson School Tp. v. Shera, 8 Ind. App. 330; Kentucky & I.
Bridge Co. v. Eastman, 7 Ind. App. 514; Hill v. Aultman, 68 Iowa,
630; Gamble v. Mullin, 74 Iowa, 99; State v. Brainard, 25 Iowa, 572;
Potter V. Chicago, R. I. & P. R. Co., 46 Iowa, 399.
4«Whalen v. Chicago, R. I. & P. Ry. Co., 75 Iowa, 563; Dupuy v.
Burkitt, 78 Tex. 338.
(224)
Ch. 8] STATING ISSUES TO JURY. § 99
not be submitted."" The court may and should refuse to
instruct upon issues which have been withdrawn or stricken
out."^ If the court declines to submit an issue to the jury
upon which evidence has been introduced, the evidence bear-
ing 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."^ But where an issue raised by the peti-
tion is not submitted to the jury, a refusal to withdraw tes-
timony as to such issue is not erroneous, where the jury
are instructed to consider only the issues submitted.'*
BO Tathwell v. City of Cedar Rapids (Iowa) 86 N. W. 291; Erb t.
German-American Ins. Co., 112 Iowa, 357.
61 Bugbee v. Kendrlcken, 132 Mass. 349; Fry v. Leslie, 87 Va. 269;
Stanford v. Murphy, 63 Ga. 410; New Haven Lumber Co. v. Ray-
mond, 76 Iowa, 225. See, also, Macon Consolidated St. R. Co. ▼.
Barnes, 113 Ga. 212.
Bs Hammer v. Chicago, R. I. & P. Ry. Co., 70 Iowa, 623.
"Gulf, 0. & S. F. Ry. Co. v. Shleder (Tex. Civ. App.) 26 S.
W. 509.
(226)
15 — Ids. to Juries.
CHAPTER IX.
IGNORING EVIDENCE, ISSUES, THEORIES, AND DEFENSES.
§ 100. Ignoring Evidence — Statement of Rule.
101. Same — Instructions Held Erroneous, as Ignoring Evidence
or Withdrawing It from Consideration
102. Same— Instructions Held not Erroneous, as Ignoring Evi-
dence or Withdrawing It from Consideration.
103. Ignoring Issues, Theories, and Defenses.
104. Same — Instructions Held Erroneous, as Ignoring Issues, The-
ories, and Defenses.
§ 100. Ignoring evidence — Statement of rule.
Instructions which ignore material evidence, or which are
so drawn as to exclude such evidence from the consideration
of the jury, are erroneous, and should not be given.^ It
1 Weiss V. Bethlehem Iron Co. (C. C. A.) 88 Fed. 23; Greenleaf
V. Birth, 9 Pet. (U. S.) 292; Ranney v. Barlow, 112 U. S. 207;
Clement v. Packer, 125 TJ. S. 309; Allison v. United States, 160
U. S. 203; Hall v. State, 53 Ala. 463; Anniston Lime & Coal Co.
V. Lewis, 107 Ala. 535; Bloch v. Edwards, 116 Ala. 90; Dill v.
State, 25 Ala. 15; Woodbury v. State, 69 Ala. 242; Gooden v. State,
55 Ala. 178; Gallagher v. Williamson, 23 Cal. 334; Venine v.
Archihald, 3 Colo. 163; Charter v. Lane, 62 Conn. 121; Marx v.
Leinkauff, 93 Ala. 453; Hall v. Brown, 30 Conn. 558; Burney v.
Ball, 24 Ga. 506; Glass v. Cook, 30 Ga. 133; Leary v. Leary, 18
Ga. 697; Wylly v. Gaaan, 69 Ga. 507; Deasey v. Thurman, 1 Idaho,
775; Dean v. State, 130 Ind. 237; Prothero v. Citizens' St. Ry.
Co., 134 Ind. 431; Larue v. Russell, 26 Ind. 386; Hunter v. State,
101 Ind. 241; Wabash, St. L. & P. Ry. Co. v. Rector, 104 111. 296;
Doan V. Duncan, 17 HI. 272; Lake Shore & M. S. Ry. Co. v. Beam,
11 111. App. 215; Dvorak v. Maloch, 41 111. App. 131; Sanford v.
Miller, 19 111. App. 536; Elgin, J. & E. Ry. Co. v. Raymond, 148
111. 241; State v. Meshek, 51 Iowa, 308; Carruthers v. Towne, 86
Iowa, 318; Myers v. Sanders' Heirs, 7 Dana (Ky.) 509; Higglns
(226)
Ch. 9] IGNORING EVIDENCE, ETC. § IQO
makes no difference how weak the evidence is on the point in
issue, it should not be withdrawn from the consideration of
the jury, and an instruction which does so is calculated to
V. Grace, 59 Md. 365; Maryland & D. R. Co. v. Porter, 19 Md.
458; Schillinger v. Kratt, 25 Md. 49; Adams v. Capron, 21 Md.
187; McDonough v. Miller, 114 Mass. 94; Seiber v. Price, 26 Mich.
518; McKay v. Evans, 48 Mich. 597; Sterling v. Callahan, 94
Mich. 536; People v. Marks, 90 Mich. 555; Thrasher v. Gillespie,
52 Miss. 840; Solomon v. City Compress Co., 69 Miss. 319; Stocker
V. Green, 94 Mo. 280; Clark v. Hammerle, 27 Mo. 55; Pink v. Phelps,
30 Mo. App. 431; Brownlow v. Woolard, 2 Mo. App. Rep'r, 1404;
Birtwhistle v. Woodward, 95 Mo. 113; Wyatt v. Citizens' Ry. Co.,
62 Mo. 408; Sigerson v. Pomeroy, 13 Mo. 620; Jones v. Jones,
57 Mo.' 138; TJhl v. Robison, 8 Neb. 272; Brown v. State, 9 Neb.
157; Ordway v. Sanders, 58 N. H. 132; Meredith t. Cranberry Coal
& Iron Co., 99 N. C. 576; State v. Floyd, 51 N. C. 392; Deal v.
McCormick, 3 Serg. & R. (Pa.) 343; Bovard v. Christy, 14 Pa.
267; Ott v. Oyer's Ex'x, 106 Pa. 7; Peirson v. Duncan, 162 Pa. 187;
Gulf, C. & S. P. Ry. Co. v. Lankford, 9 Tex. Civ. App. 593; Wels
V. Dittman, 4 Tex. Civ. App. 35; Missouri, K. & T. Ry. Co. v.
Simmons, 12 Tex. Civ. App. 500; Gordon v. Tabor, 5 Vt. 103; Hash
V. Com., 88 Va. 172; McCreery's Adm'x v. Ohio River R. Co., 43
W. Va. 110; McMechen v. McMechen, 17 W. Va. 683; Rio Grande
Western Ry. Co. v. Leak, 163 U.' S. 280; Lucas v. Brooks, 18 Wall.
(U. S.) 436; Ayers v. Watson, 113 U. S. 594; Edwards' Lessee v,
Darby, 12 Wheat. (U. S.) 206; Orleans v. Piatt, 99 U. S. 676;
Louisville & N. R. Co. v. Hurt, .101 Ala. 34; Williamson v. Tyson,
105 Ala. 644; White v. Craft, 91 Ala. 139; Savery v. Moore, 71
Ala. 236; Callan v. McDaniel, 72 Ala. 96; Darnell v. Griffin, 46 Ala.
520; Highland Ave. & B. R. Co. v. Sampson, 112 Ala. 425; Pox
V. Stockton Combined H. & A. Worlds, 83 Cal. 333; Plumb v.
Curtis, 66 Conn. 154; Florida Ry. & Nav. Co. v. Webster, 25 Pla.
394; Ryan v. Brown, 59 111. App. 394; American Bible Soc v.
Price, 115 111. 623; Wooley v. Lyon, 117 111. 244; Thome v. Mc-
Veagh, 75 111. 81; Phenix Ins. Co. v. La Pointe, 118 III. 384; Folk
V. Wilson, 21 Md. 538; Bosley v. Chesapeake Ins. Co., 3 Gill &
J. (Md.) 450; Lewis v. Kramer, 3 Md. 265; Thomas v. Sternheimer,
29 Md. 268; Cover v. Myers, 75 Md. 406; Graves v. Dill, 159 Mass.
74; Kieldsen v. Wilson, 77 Mich. 45; Barada v, Blumenthal, 20
Mo. 162; Jackson v. Bowles, 67 Mo. 609; Greer v. Parker, 85 Mo.
107; Atchison & N. R. Co. v. Jones, 9 Neb. 67; Consaul v. Sheldon,
35 Neb. 247; Hazewell v. Coursen, 81 N. Y. 630; Pennsylvania
(227)
§ 100 INSTRUCTIONS TO JURIES. [Ch. 9
mislead, and improper.^ Where the court instructs affirma-
tively of its own motion, it should present the case in all the
phases and aspects in which the jury ought to consider it,
not giving any undue prominence to or leaving in obscurity
any phase or aspect there is evidence tending to support;
and if such instructions in effect discard or ignore, and
thereby induce the jury to discard or ignore, any material
evidence, however weak, they are erroneous.* 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 prop-
erly be made to turn, and the effect of this charge, if literally
followed by the jury, is to withdraw from them the considera-
tion of other facts which tend to disprove or materially qual-
ify the facts upon which the charge is predicated, injury will
be presumed from tbe error.* "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 contro-
versy material to the right of the plaintiff or the defense of
the defendant.'"
Canal Co. r. Harris, 101 Pa. 93; Caraway y. Citizens' Nat. Bank
of Weatherford (Tex. Civ. App.) 29 S. W. 506; Pitt v. Elser, 7
Tex. Civ. App. 47; Asliley v. Hendee, 56 Vt. 209; Phoenix Ins. Co.
v. Sholes, 20 Wis. 35; Sherman v. Kreul, 42 Wis. 33; Thompson
v. Douglass, 35 W. Va. 337; McNamara v. Dratt, 40 Iowa, 413;
Montgomery v. Com., 98 Vt. 852; Mims v. State (Pla.) 27 So. 865;
Texas & P. Ry. Co. v. White, 42 C. C. A. 86, 101 Fed. 928; Bryan
Cotton-Seed Oil Mill v. Fuller (Tex. Civ. App.) 57 S. W. 924.
2 Edgar v. McArn, 22 Ala. 796; Pritchett v. Munroe, 22 Ala.
501; Holmes v. State, 23 Ala. 17; Beale v. Hall, 22 Ga. 431; Mims
v. State (Fla.) 27 So. 865; Providence Gold-Min. Co. v. Thompson
(Ariz.) 60 Pac. 874.
sWoodhury v. State, 69 Ala. 242; Gooden v. State, 55 Ala. 178.
4 Holmes v. State, 23 Ala. 17. See McVey v. St. Clair Co. (W.
Va.) 38 S. E. 648.
5 Gallagher v. Williamson, 23 Cal. 334; Deasey v. Thurman, 1
Idaho, 779.
(228)
Ch. 9] IGNORING EVIDENCE, ETC. § 101
5 101, Same — Instructions held erroneous, as ignoring evi-
dence or withdrawing it from consideration.
The following instrmctions have been held erroneous, as
being in violation of the rule: An instruction on a murder
trial, taking from the consideration of the jury the question
of self-defense, there being testimony tending to show that
the defendant acted in self-defense.® An instruction in a pros-
ecution for' assault with intent to commit rape, which gath-
ers 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.'^ 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.* An instruction "that the
plaintiff is not entitled to recover the property in controversy
if the jury find certain facts, omitting all allusion to the
separate use of the property in the plaintiff," there being
evidence tending to show such use.* An instruction, "in an
action by a father against the proprietor of a planing mill to
recover damages for a personal injury sustained by his son
while in the defendant's employment," directing the jury
"that, if changing the boy's work was the cause of the acci-
dent and injury, the defendant was liable," the whole evi-
dence tending to show that the injury was the result of the
boy's own carelessness.^** An instruction "that the plaintiffs
could recover from the garnishees 'at the rate and valuation
of the contract, deducting the cost of completing it,' " not
8 Brown V. State, 9 Neb. 157. See, also, Martin v. State, 47
•Ala. 564.
^ Coon V. People, 99 111. 368.
8 Dodson V. State, 86 Ala. 60.
« Chew V. Beall, 13 Md. 348. ,
10 Sinclair v. Berndt, 87 III. 174.
(229)
§ 101 INSTRUCTIONS TO JURIES. [Ch. 9
noticing payments that liad been made to the debtor.*^ An
instruction "upon the credibility of a witness," telling the
jury that "they have the right to take into consideration 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."^^ In-
structions in an action upon a promissory note, where a set-
off was pleaded, "founded altogether upon admissions of the
execution and nonpayment of the note declared on, and not
referring in any way to evidence offered under the plea of
set-off."** An instruction that, if the jury should find from
the evidence certain facts stated, being only a part of the
material facts in evidence, and omitting facts in evidence
favorable to the defendant, "your finding should be for the
plaintiff."-'* An instruction, in an action for damages caused
by the negligence of a railroad company, which states that
certain 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.*® In an action by a
father for the seduction of his daughter, the court gave the
following instruction: "As to the main fact of sexual inter-
course, 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 preponderance for the plain-
tiff." 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.*'
11 Coates v. Sangston, 5 Md. 121.
izChesney v. Meadows, 90 111. 430.
13 Schillinger v. Kratt, 25 Md. 49.
"Thompson v. Boden, 81 Ind. 176.
IB Chicago, B. & Q. R. Co. v. Ruster, 22 111. App. 188.
loPruitt v. Cox, 21 Ind. 15.
(230)
Ch. 9] IGNORING EVIDENCE, ETC. § 103
! 102. Same — Instructions held not erroneous, as ignoring evi-
dence or withdrawing it from consideration.
The following instructions have been held not in violation
of the rule : An instruction that it is a question of fact for
the jury to determine whether a part, or, if so, how much, of
the proceeds of a designated sale came into the hands of the
executor making the sale, after the latter's decease, in an ac-
tion against the executor to recover the proceeds of the sale.'"
An instruction, in proceedings to condemn land, that "state-
ments of counsel or parties, not made under oath, or made as
admissions, are not evidence, and are not to be regarded as
such by the jury in making up their verdict." This instruc-
tion 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.
Such admission is expressly excluded from the operation of
the instruction.'* An instruction that, if the jury found cer-
tain specified facts from plaintiff's testimony, she was not
necessarily guilty of negligence, is not erroneous, as ignoring
conflicting testimony on the part of the defendant, the general
charge being full and correct.'®
I 103. Ignoring Issues, theories, and defenses.
In charging the jury, it is error to ignore or exclude from
the consideration of the jury any of the issues, theories, or
defenses presented by the pleadings and the evidence ■,^° and
iTKirby v. Wilson, 98 111. 240, In which it was held this In-
struction was not to be understood as telling the jury this was
the only question for their consideration.
18 Bowman v. Venice & C. Ry. Co., 102 111. 459.
i» Shaw V. Village of Sun Prairie, 74 Wis. 105.
aoBloch T. Edwards, 116 Ala. 90; Remy v. Olds (Cal.) 34 Pac.
216; Klink v. Poland, 72 Ga. 485; Planters' Bank v. Richardson,
16 Ga. 277; Southwestern R. Co. v. Singleton, 67 Ga. 307; McCol-
lom T. Indianapolis & St. L. R. Co., 94 111. 534; Volk v. Roche,
(231),
§ 103 INSTRUCTIONS TO JURIES. [Ch. 9
this is true, though the evidence in support thereof is very
slight.^^ It is error to submit the ease entirely from the
70 111. 297; Collins v. "Waters, 54 III. 485; Costly v. McGowan, 174
111. 76; Simpson Brick Press Co. v. Wormley, 166 III. 383; Chicago
& N. W. Ry. Co. V. Clark, 70 111. 276; Burke v. State, 72 Ind.
392; Terry v. Shively, 64 Ind. 106; Longnecker v. State, 22 Ind.
247; Eureka Fertilizer Go. of Cecil County v. Baltimore Copper,
Smelting & Rolling Co., 78 Md. 179; Turner v. EUicott, 9 Md.
52; Boofter v. Rogers, 9 Gill (Md.) 53; Wildey v. Crane, 69 Mich.
17; Miller v. Miller, 97 Mich. 151; Dikeman v. Arnold, 71 Mich.
656; People v. Cummins, 47 Mich. S2i; De Foe v. St. Paul City
Ry. Co., 65 Minn. 319; Walter A. Wood Mowing & Reaping Mach.
Co. V. Bobbst, 56 Mo. App. 427; Bvers v. Shumaker, 57 Mo. App.
464; Turner v. Loler, 34 Mo. 461; Kraft v. McBoyd, 32 Mo. App.
399; Hayner v. Churchill, 29 Mo. App. 676; Carder v. Primm, 1
Mo. App. Rep'r, 167; Condon v. Missouri Pae. Ry. Co., 78 Mo. 567;
Brown v. McCormick, 23 Mo. App. 181; Eaton v. Carruth, 11 Neb.
231; Carruth v. Harris, 41 Neb. 789^; Rising v. Nash, 48 Neb. 597;
Holmes v. Whitaker, 23 Or. 319; Kearney v. Snodgrass, 10 Or.
181; Fiore v. Ladd, 25 Or. 423; Minick v. Gring, 1 Pa. Super. Ct.
484; Hall V. Vanderpool, 156 Pa. 152; Belf v: Rapp, 3 Watts & S.
(Pa.) 21; Nashville & C. R. Co. v. Conk, 11 Heisk. (Tenn.) 575;
Cannon v. Cannon, 66 Tex. 682; Eppstein v. Thomas, 16 Tex. Civ.
App. 619; Island City Boating & Athletic Ass'n v. New York & T.
Steamship Co., 80 Tex. 375; Gulf, C. & S. F. Ry. Co. v. Kizziah,
4 Tex. Civ. App. 356; McGehee v. Lane, ^4 Tex. 390; Wootters v.
Hale, 83 Tex. 563; Smithwick v. Andrews, 24 Tex. 488; Dignan
V. Spurr, 3 Wash. 309; Adams v. Roberts, 2 How. (U. S.) 486;
Banner Distilling Co. v. Dieter (Tex. Civ. App.) 60 S. W. 798;
Hayes v. Pennsylvania R. Co., 195 Pa. 184; McVey v. St. Clair
Co. (W. Va.) 38 S. E. 648; Dorsey Printing Cfo. v. Gainesville Cot-
ton Seed Oil Mill & Gin Co. (Tex. Civ. App.) 61 S. W. 556; Union
Stock Yard & Transit Co. v. Goodman, 91 111. App. 426; Taylor
V. State (Tex. Cr. App.) 63 S. W. 330; Clark v. Smith, 87 111.
App. 409; P. J. Willis & Bro. v. Sims' Heirs (Tex. Civ. App.) 57
S. W. 325. "An instruction given at the request of the defendant,
and covering only a part of the theory of the defense," is objec-
tionable because too narrow, but it is not ground for reversal
where it is manifest that it did not operate to the prejudice o£
the plaintiff. Maxwell v. Kent (W. Va.) 39 S. E. 174.
2iMcGown V. International & G. N. Ry. Co., 85 Tex. 289; Provi-
dence Gold Min. Co. v. Thompson (Ariz.) 60 Pac. 874.
(232)
Ch. 91 IGNORING EVIDENCE, ETC. § !<):?
standpoint 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.^^ 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.^* A refusal of instructions defective in this
regard is, of course, proper, and error can in no case be predi-
cated of such refusal f*^ and, on the other hand, a refusal to
instruct the jury on a theory, issue, or defense which there is
evidence tending to support is erroneous.^' An instruction
ignoring a theory or defense is not erroneous, however, where
there is no evidence to sustain the theory or defense ignored.^'
»2 Hayes v. Pennsylvania R. Co., 195 Pa. 184.
2' Republican Valley R. Co. v. Pink, 18 Neb. 89; Barker v. State,
126 Ala. 83.
2* Southwestern R. Co. v. Singleton, 67 Ga. 306; Chicago & N.
W. Ry. Co. v. Clark, 70 111. 276; Turner v. Ellicott, 9 Md. 52;
Condon v. Missouri Pac. Ry. Co., 78 Mo. 567; Martin v. Johnson,
23 Mo. App. 96; Henry v. Bassett, 75 Mo. 89; Carruth v. Harris,
41 Neb. 789; Hall v. Vanderpool, 156 Pa. 152; Gulf, C. & S. F.
Ry. Co. V. Kizziah, 4 Tex. Civ. App. 356; Krewson v. Purdom, 13
Or. 563; Pope v. Riggs (Tex. Civ. App.) 43 S. W. 306; Leonard
V. Brooklyn Heights R. Co., 57 App. Div. (N. Y.) 125; Mitchell v.
La Follett, 38 Or. 178; Westbury v. Simmons, 57 S. C. 467; Ken-
nedy V. Forest Oil Co. (Pa.) 49 Atl. 133; Davis Wagon Co. v. Can-
non (Ala.) 29 So. 841; Fulton v. Ryan, 60 Neb. 9, 82 N. W. 195.
Remarks of counsel in argument may sometimes require an in-
struction upon questions not in issue. See Missouri, K. & T. Ry.
Co. V. Nail, 24 Tex. Civ. App. 114, where, however, the particular
remark was held not to call for an instruction that exemplary
damages could not be allowed, the question of exemplary damages
not being In issue.
26 De Foe v. St. Paul City Ry. Co., 65 Minn. 319; Kraft v. Mc-
Boyd, 32 Mo. App. 399; Underwood v. Coolgrove, 59 Tex. 164;
Smith wick v. Andrews, 24 Tex. 488; Parker v. Chancellor, 78 Tex.
524; Oliver. V. Moore (Tex. Civ. App.) 43 S. W. 812; Jackson v.
Com., 96 Va. 107; P. J. Willis & Bro. v. Sims' Heirs (Tex. Civ.
App.) 57 S. W. 325.
20Longnecker v. State, 22 Ind. 247; Gulf, C. & S. F. Ry. Co.
(233)
§ 104 INSTRUCTIONS TO JURIES. [Ch. 9
Instructions on matters about which there is no real dispute
are properly refused.^'' So 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.^® It is not necessary that all issues, theories,
and defenses be presented in one instruction. An instruc-
tion 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 instruc-
tions.^^ But where the right of action or defense rests upon
several questions of fact, an instruction making the question
turn upon the finding as to one point, and ignoring the others,
is erroneous, and may be refused.^"
§ 104. Same — ^Instructions held erroneous, as ignoring issues,
theories, and defenses.
The following instructions have been held erroneous, as
being in violation of the rules stated: In an action on a
note, where proof is offered tending to establish two grounds
v. Dorsey, 66 Tex. 148; E. A. Moore Furniture Co. v. W. & J.
Sloane, 166 III. 457; Jones v. Missouri Pac. Ry. Co., 31 Mo. App.
614. It is error to leave it to the jury to determine whether there
is any evidence to support a particular issue. McAllister v. Fer-
guson, 50 App. Div. (N. Y.) 529.
27 Cooke V. Plaisted, 176 Mass. 374.
28Lowry v. Mt. Adams & E. P. Incline Plane Ry. Co., 68 Fed.
827.
29 State V. Hope, 102 Mo. 410; Fessenden v. Doane, 89 111. App.
229, affirmed 188 111. 228.
30 Davis Wagon Co. v. Cannon (Ala.) 29 So. 841; Kennedy v.
Forest Oil Co. (Pa.) 49 Atl. 133; Deasey v. Thurman, 1 Idaho. 779;
Gallagher v. Williamson, 23 Cal. 334; Holmes v. State, 23 Ala. 17;
McVey v. St. Clair Co. (W. Va.) 38 S. E. 648.
(234)
Ch. 9J IGNORING EVIDENCE, ETC. § 104
of defense, either of wlTiich were available, an instruction nar-
rowing the defense to a single point.*^ A hypothetical in-
struction, in an action for negligence, directing a verdict for
the plaintiff, and ignoring the defense of contributory negli-
gence.^^ In an action on a note, "with a condition that the
same was subject to all payments made to the payee, as a
partner of the maker, and not charged upon the books of the
firm, where siich payments were pleaded, and also a plea of
set-off, an instruction that if the matters of defense under the
condition in the note are not proved, the jury should find for
the plaintiff," since such instruction ignores "the defense and
proof under the plea of set-off."^* In an action on a note,
where "defendant pleaded non est factum under oath, and
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.'* An instruction to find for
the defendant unless they should find from the evidence that
a good consideration passed from the plaintiff to the defend-
ant, and the defendant signed a memorandum in writing,
charging himself with the debt of another, there being evi-
dence that defendant's undertaking was an original, and not
a collateral, agreement.'* In an action for breach of con-
tract, an instruction that the jury should give plaintiff dam-
ages if defendant did not perform withdraws from the jury
the question of performance by plaintiff.'* In an action of
trover, where the defendant relies upon two separate and dis-
tinct grounds of defense, an instruction submitting the case
to the jury upon one of them only, and in such a way as to
SI Anderson v. Norvill, 10 111. App. 240.
32 McVey v. St. Clair Co. (W. Va.) 38 S. E. 648.
33Volk V. Roche, 70 111. 297.
3«McGehee v. Lane, 34 Tex. 390.
35 Clark V. Smith, 87 111. App. 409.
8cRemy v. Olds (Cal.) 34 Pac. 216.
(235^
'§ 104 INSTRUCTIONS TO JURIES. [Ch. 9
exclude entirely tlie other from their consideration.*^ "In
an action for an assault and battery, in which was filed a plea
of son assault demesne^ an instruction * * * withdraw-
ing from the jury the consideration of the issue on that
plea."** 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.*® In an action for breach of war-
ranty of goods alleged to have been sold by defendant to
plaintiff, an instruction that, if the jury should believe from
the evidence that the goods were deposited with plaintiff, to
be sold on commission for defendant, their verdict must be
for defendant, is erroneous because no reference is made to
the terms on which the jury might have believed the deposit
was made.*" Where the defendant's liability depended on
the existence of a partnership, and there was evidence on that
subject proper for the jury's consideration, a prayer denying
the plaintiff's right to recover, based on the theory of prin-
cipal and agent (of which there was also evidence), and ignor-
ing the partnership, was properly refused.*^ An instruction
that plaintiff is entitled to recover on the note in suit, if a
check by defendant was not given in payment thereof, the
plea of the statute of limitations having been set up, and evi-
dence offered to sustain it.*^ An instruction, with reference
to the credibility of witnesses, concluding as follows: "Al-
ways remembering that every variance [or contradiction] is
not of itself an indication of any design to evade the truth
on the part of those testifying," as its tendency was to with-
37 White V. Dinkins, 19 Ga. 285.
38 Collins V. Waters, 54 111. 485.
30 Barker v. State, 126 Ala. 83.
40Beall V. Pearre, 12 Md. 550.
*i Fulton V. Maccracken, 18 Md. ' 528.
42 Gedney v. Gedney, 61 111. App. 511.
(236)
Ch. 9] IGNORING EVIDENCE, ETC. § 104
draw the contradictory statements of the witness from the
consideration of the jury, whose province alone it was to
judge the motives of the witness in making such statements.*^
So, where there is evidence, in detinue proceedings for mort-
gaged property, that the mortgagees accepted other property
in place of that conveyed, and also evidence that the property
had not been accepted as a substitute for that mortgaged, but
in part payment of the mortgage debt, an instruction that,
before plaintiffs could recover, they must, before the com-
mencement of the action, return the property which defend-
ant claimed was accepted as a substitute, is errOneoiis, as
in effect charging that, although the property may have been
received from the defendant by agreement with him as a par-
tial payment upon the debt, and credited thereon, yet, before
the plaintiffs could maintain the action, it was necessary to
first return the horse to defendant. Such instruction ignores
the theory of plaintiff that the property was received in pay-
ment.** On the other hand, it has been held that an instruc-
tion that "the defendant has interposed a general denial of
all acts of negligence, and in this suit the pleadings throw the
burden upon the plaintiff," is not erroneous, as assuming that
no other defense than this denial was interposed.*®
43 Newberry v. State, 26 Fla. 334.
"Bloch V. Edwards, 116 Alaj 90.
*o Louisville & N. R. Co. v. Ward (C. C. A.) 61 Fed. 927.
(237)
CHAPTER X.
GIVING UNDUE PROMINENCE TO EVIDENCE, ISSUES, AND
THEORIES.
§ 105. Rule Against.
106. Same — Singling Out Particular Witnesses.
107. Same — Exceptions to Rule.
108. Giving Undue Prominence by Repetition.
109. Instructions Held Erroneous as Singling Out and Giving Un-
due Prominence to the Evidence.
110. Instructions Held not Erroneous as Singling Out and Giving
Undue Prominence to Evidence.
111. Singling Out Issues and Theories.
§ 105. Bule against.
The court should not instruct specially upon particular
portions of the evidence, thereby giving undue prominence to
such evidence,' and requests for instructions which are open
1 Scott V. Lloyd, 9 Pet. (U. S.) 418 ; Coffin v. United States, 162
U. S. 664; Crawford v. State, 112 Ala. 1; Burton v. State, 107
Ala. 108; Bush v. State, 37 Ark. 215; Winter v. Bandel, 30 Ark.
383; People v. Sanders, 114 Cal. 216; Beers v. Housatonuc R. Co.,
19 Conn. 570; Holt v. State, 62 Ga. 314; Black v. Thornton, 30
Ga. 361; Flowers v. Flowers, 89 Ga. 632; C. H. Fargo & Co. v.
Dixon, 63 111. App. 22; Parlin v. Finfrouck, 65 111. App. 174; .City
of Waverly v. Henry, 67 111. App. 407; Pittsburgh, C, C. & St. L.
R. Co. V. Dahlin, 67 111. App. 99; Pennsylvania Co. v. Stoelke, 104
111. 201; McCartney v. McMullen, 38 111. 237; Barker v. State, 48
Ind. 163; Todd v. Danner, 17 Ind. App. 368; McCorkle v. Simpson,
42 Ind. 453; Atchison, T. & S. F. R. Co. v. Retford, 18 Kan. 245;
Gross V. Shaifer, 29 Kan. 442; Moran v. Higgins, 19 Ky. Law Rep.
456; Com. v. Delaney, 16 Ky. La,w Rep. 509; Stokes' Bx'r v. Ship-
pen, 13 Bush (Ky.) 180; Louisville & N. R. Co. v. Banks, 17
Ky. Law Rep. 1065; Moseley v. Washburn, 167 Mass. 345; People
V. Colerick, 67 Mich. 362; Heddle v. City Electric Ry. Co., 112
(238)
Ch. lOj UNDULY EMPHASIZING MATTERS. § 105
to this objection may be properly refused.^ The reason for
this rule is that such instructions are both argumentative *
Mich. 547; Banner v. Schlessinger, 109 Mich. 262; Webster v.
Sibley, 72 Mich. 630; Prine v. State, 73 Miss. 838; Godwin v. State,
73 Miss. 873; Chaney v. Phoenix Ins. Co., 1 Mo. App. Rep'r, 703;
Meyer v. Pacific R. Co., 40 Mo. 151; Pourcelly v. Lewis, 8 Mo.
App. 593; Himes v. McKinney, 3 Mo. 382; Mead v. Brotherton, 30
Mo. 2J)1; Argabright v. State, 49 Neb. 760; Markel v. Moudy, 11
Neb. 213; Mendes v. Kyle, 16 Nev. 369; Consolidated Traction
Co. V. Behr, 59 N. J. Law, 477; Hughes v. Ferguson, 23 N. Y.
Wkly. Dig. 185; Wilson v. White, 80 N. C. 280; Callahan v. State,
21 Ohio St. 306; Church v. Melville, 17 Or. 413; Bohlen v. Stock-
dale, 27 Pittsb. Leg. J. 198; Gehman v. Erdman, 105 Pa. 371;
Reber v. Herring, 115 Pa. 599; Reichenbach v. Ruddach, 127 Pa.
564; Montgomery v. gcott, 10 Rich. (S. C.) 449; Bell v. Hutchings
(Tex. Civ. App.) 41 S. W. 200; International & G. N. R. Co. v.
Newman (Tex. Civ. App.) 40 S. W. 854; Medlin v. Wilkins, 60
Tex. 409; Goodbar v. City Nat. Bank of Sulphur Springs, 78 Tex.
461; Galveston, H. & S. A. Ry. Co. v. Kutac, 76 Tex. 473; New
York, P. & N. R. Co. v. Thomas, 92 Va. 606; Reed v. Reed, 56
Vt. 492; Sexton v. School Dist. No. 34, Spokane Co., 9 Wash. 5;
Wabash R. Co. v. Stewart, 87 111. App. 446; Goodhue Farmers' Ware-
house Co. V. Davis, 81 Minn. 210; Jackson v. Kansas City, Ft. S.
& M. R. Co., 157 Mo. 621; Merchants' Loan & Trust Co. v. Lamson,
90 III. App. 18; City of Chicago v. Spoor, 190 111. 340, reversing
91 111. App. 472; Safe-Deposit & Trust Co. v. Berry (Md.) 49 Atl.
401; Strehmann v. City of Chicago, 93 111. App. 206; Hayes v.
Pennsylvania R. Co., 195 Pa. 184; Montgomery v. Com., 98 Va.
852. Compare State v. Smith, 65 Me. 257; Virgie v. Stetson, 73
Me. 452; Millay v. Millay, 18 Me. 387.
2 McPherson v. Foust, 81 Ala. 295 ; Louisville & N. R. Co. v.
Hurt, 101 Ala. 34; Louisville & N. R. Co. v. Rice, 101 Ala. 676;
Chandler v. Jost, 96 Ala. 596; Louisville & N. R. Co. v. Webb, 97
Ala. 308; Mobile Sav. Bank v. McDonnell, 89 Ala. 445; People v.
Hawes, 98 Cal. 648; Model Mill Co. v. McEver, 95 Ga. 701; Toledo,
St. L. & K. C. R. Co. V. Mylott, 6 Ind. App. 438; Merrill v. Hole,
85 Iowa, 66; Kline v. Kansas City, St. J. & C. B. R. Co., 50 Iowa,
656; Delaney v. Hall, 130 Mass. 524; Green v. Boston & L. R. Co.,
s Martin v. Johnson, 89 111. 537 ; Louisville & N. R. Co. v. Hurt,
101 Ala. 34; Reed v. Keed, 56 Vt. 492; Chapman v. State (Neb.)
86 N. W. 907. See, also, ante §§ 68-70, "Argumentative Instructions."
(239)
g 105 INSTRUCTIONS TO JURIES. [Ch, 10
and misleading, as having a tendency to induce the jury to
give undue weight to the evidence singled out.* "All the evi-
dence is for the consideration of the jury, and the practice
of making detached portions prominent should not be en-
couraged."® The instructions "should be so framed that all
parts of the evidence should be considered and weighed by
128 Mass. 221; Manley v. Boston & M; R. R., 159 Mass. 493; Orube
V. Nichols, 36 III. 95; City of Atchison v. King, 9 Kan. 550; Scott
1 V. People, 141 111. 195; City of Aurora v. Hillman, 90 111. 61; Bowen
V. Schuler, 41 III. 193; Callaghan v. Myers, 89 111. 566; Busch v.
Wilcox, 82 Mich. 315; Beurmann v. Van Buren, 44 Mich. 436; Peo-
ple V. Pope, 108 Mich. 361; Dobbs v. Humphreys, 1 Mo. App.
Rep'r, 195; State v. Cantlin, 118 Mo. 100; Chaney v. Phoenix Ins.
Co., 62 Mo. App. 45; State v. Homes, 17 Mo. 379: Dobbs v. Gates'
Estate, 60 Mo. App. 658; Meysr v. Blakemore, 54 Miss. 570; People
V. O'Nell, 109 N. Y. 251; Fitzgerald v. Long Island R. Co., 50
Hun, 605, 3 N. Y. Supp. 230; Dawson v. Sparks, 1 Posey, Unrep.
Cas. (Tex.) 735; Schunior v. Russell, 83 Tex. 83; Panhandle Nat.
Bank v. Emery, 78 Tex. 498; State v. Clara, 53 N. C. 25; Reed v.
Reed, 56 Vt. 492; Donahue v. Egan, 85 111. App. 20; Harris v.
City of Ansonia, 73 Conn. 359; Dawson v. Falls City Boat Club
(Mich.) 84 N. W. 618; Frost v. State, 124 Ala. 71; Anderson v.
Canter (Kan. App.) 63 Pac. 285. 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 calcu-
lated to injure the accused. Thornley v. State, 36 Tex. Cr. App.
118; Travelers' Ins. Co. v. Clark (Ky.) 59 S. W. 7; Southern Ry.
Co. v. Reaves (Ala.) 29 So. 594; Decatur Car Wheel & Mfg. Co. v.
Mehaffey (Ala.) 29 So. 646; Connecticut Mut. Life Ins. Co. v. Hill-
mon (C. C. A.) 107 Fed. 834; Pearson v. Adams (Ala.) 29 So. 977;
Gilmore v. State, 126 Ala. 20; Huskey v. State (Ala.) 29 So. 838;
State v. Morrison (W. Va.) 38 S. E. 481; Chapman v. State (Neb.)
86 N. W. 907.
■» McCartney v. McMuUen, 38 111. 237; Medlin v. Wilkins, 60 Tex.
409; Safe-Deposit & Trust Co. v. Berry (Md.) 49 Atl. 401; Streh-
mann v. City of Chicago, 93 111. App. 206; State v. Morrison (W,
Va.) 38 S. E. 481.
6 Hatch v. Marsh, 71 111. 370.
(240)
Ch. 10] UNDULY EMPHASIZING MATTERS. § 105
the jiiry," and not be based on isolated parts of the evidence.*
Instructions should not be so drawn as to direct the attention
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.'^ It is the duty of
the jury to consider all the testimony in the case, as well that
which makes for one party as for the other.*
It has been said that the court will not, as a general rule,
reverse for the giving of instructions singling out and giving
undue prominence to evidence, if there are no other errors.®
8 Newton v. State, 37 Ark. 333; Winter v. Bandel, 30 Ark. 383;
Moore v. Wright, 90 111. 470; City of Aurora v. Hillman, 90 111.
61; Wilson v. White, 80 N. C. 280; Reese v. Beck, 24 Ala. 662;
Phillips V. Roberts, 90 111. 492; Ogden v. Kirby, 79 111. 557.
7 Evans v. George, 80 111. 51; Martin v. Johnson, 89 III. 537;
Moore v. Wright, 90 111. 470; Protection Life Ins. Co. v. Dill, 91
III. 174; Graves v. Colwell, 90 111. 612; City of Aurora v. Hillman,
90 111. 61; Pennsylvania Co. v. Conlan, 101 111. 93; People v. Mur-
ray, 72 Mich. 10; Banner v. Schlessinger, 109 Mich. 262; Flowers
v. Flowers, 92 Ga. 688; Prine v. State, 73 Miss. 838; Reber v.
Herring, 115 Pa. 599; Minick v. Gring, 1 Pa. Super. Ct. 484; Pitts-
burgh, C, C. & St. L. R. Co. V. Dahlin, 67 111. A'pp. 99; Hayes v.
Pennsylvania R. Co., 195 Pa. 184. An instruction which emphasized
the evidence in favor of the plaintiff, and minimized the evidence
in favor of the defendant, is ground tor reversal. McCabe v.
City of Philadelphia, 12 Pa. Super. Ct. 383. But it is not reversible
error for the court to recite the evidence for the plaintiff more
fully than the evidence for the defendant, where the substance of
both is fairly and impartially stated. Jamison v. Hawkins, 13
Pa. Super. Ct. 372.
8 Moore v. Wright, 90 111. 470.
» McCartney v. McMuUen, 38 111. 237. See, also, Medlin v. Wil-
kins, 60 Tex. 409, where it was said that a disregard of the rule
against emphasizing "any particular portion of the evidence * * •
will only afford ground for reversal when it is calculated to mis-
lead the jury." And see Maes v. Texas & N. 0. Ry. Co. (Tex.
Civ. App.) 23 S. W. 725; Gulf, C. & S. F. Ry.' Co. v. Gordon, 70
Tex. 80; Houston & T. C. Ry. Co. v. Larkin, 64 Tex. 454; Bertram
V. People's Ry. Co., 154 Mo. 639.
(241)
16 — Ins. to Juries.
§ 106 INSTRUCTIONS TO JURIES. [Ch, 10
So, an instruction is not objectionable on the ground that it
gives undue prominence to certain facts, if such facts were
immaterial to the issues involved.*" ISTevertheless, if it is
clear that the jury have been misled to the injury of the party
complaining, the judgment will be reversed.** Thus, if the
ease is a close one on the evidence, 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 favorable to the other -side, the
judgment will be reversed.*^
§ 106. Same — Singling out particular witnesses.
An instruction which singles out the testimony of a par-
ticular witness or witnesses for examination by the jury, and
gives undue prominence thej'eto, is improper, and should not
be given.** The court should not place a particular witness
in undue prominence by charging the jury to find according
to their belief or disbelief in his evidence,** and it is accord-
10 Bertram v. People's Ry. Co., 154 Mo. 639, wherein the instruc-
tions gave undue prominence to plaintiff's advanced age.
11 Jacksonville & S. E. Ry. Co. v. Walsh, 106 111. 253; Brown v.
Monson, 51 111. App. 490; Flowers v. Flowers, 92 Ga. 688; Penn-
sylvania Co. V. Stoelke, 104 111. 201; Reber v. Herring, 115 Pa.
599; Holt v. State, 62 Ga. 314; Polly v. Com., 16 Ky. Law Rep.
203, 27 S. W. 862; Com. v. Delaney, 16 Ky. Law Rep. 509, 29 S.
W. 616; McCabe v. City of Philadelphia, 12 Pa. Super. Ct. 383.
12 Flowers v. Flowers, 92 Ga. 688; McCabe v. City of Philadel-
phia, 12 Pa. Super. Ct. 383.
13 Donahue v. Egan, 85 111. App. 20; Gibson v. Snow Hardware
Co., 94 Ala. 346; Steed v. Knowles, 97 Ala. 573; Wright v. Bell,
5 111. App. 352; Grand Rapids & I. R. Co. v. Judson, 34 Mich. 507;
Westchester Fire Ins. Co. v. Earle, 33 Mich. 143; Bohlen v. Stock-
dale, 27 Pittsb. Leg. J. 198; Bell v. Hutchings (Tex. Civ. App.)
41 S. W. 200; Parlin v. Finfrouck, 65 111. App. 174; State v. Rog-
ers, 93 N. C. 523; Devlin v. People, 104 111. 504; People v. Simpson,
48 Mich. 474; Southern Ry. Co. v. Reaves (Ala.) 29 So. 594.
liWilley v. Catling, 70 K. C. 410; Brem v. Allison, 68 N. 0.
(242)
Ch. 10] UNDULY EMPHASIZING MATTERS. § 107
ingly proper to refuse an instruction "that, if they [the jury]
believe the testimony of certain witnesses as to the where-
abouts of the defendant at the time of the * * * alleged
offense/' they should acquit him;^^ or an instruction which
puts a case to the jury upon the testimony of a single wit-
ness, and which directs them that, if they believe such wit-
ness, their verdict should be for a designated party.'* Tt
has been held improper to single out a witness by name, and
instruct the jury that they are judges of his credibility,
though they are further instr\icted that they are also judges
of the credibility of all the other witnesses. This instruction
is calculated to make the jury believe that there is more ques-
tion as to the credibility of the witness thus singled out than
as to that of the other witnesses.^^
§ 107. Same — Exceptions to rule.
There are some exceptions to the rule declaring it to be
erroneous to single out portions of the eviJence in instruct-
ing the jury. 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.-'* In so deciding, the reviewing court said "such a
412; Dolan v. Delaware & H. Canal Co.. 71 N. Y. 285; McGrath
V. Metropolitan Life Ins. Co., 6 N. Y. St. Rep. 376; Thompson v.
State, 106 Ala. 67; People v. Simpson, 48 Mich. 474; Chase v.
Buhl Iron Works, 55 Mich. 139; Eraser v. Haggerty, 86 Mich. 521;
Jackson v. Commissioners of Greene Co., 76 N. C. 282.
" Thompson v. State, 106 Ala. 67.
18 Grand Rapids & I. R. Co. v. Judson, 34 Mich. 507.
1' Davidson v. Wallingford, 88 Tex. 619. See, also, Goodhue
Farmers' Warehouse Co. ir. Davis, 81 Minn. 210.
18 Hart v. Bray, 50 Ala. 446. The Judge can declare the law upon
certain facts, which the testimony of a single witness tends to
prove, without noticing other evidence pertaining to other phases
of the case. Garrett's Adm'rs v. Garrett, 27 Ala. 687.
(243)
§ 107 INSTRUCTIONS TO JURIES. [Ch. 10
charge does not, either expressly or by implication, exclude
the other evidence from the consideration of the jury," and
that, if such an inference should be apprehended, it may be
guarded against by asking other instructions.-'* It has also
been held that,, wher« "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 submitted to the jury by instruc-
tion, 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 re-
fusal of it."^" The rule against singling out and giving un-
due prominence to particular facts only applies where there
are two or more facts tending to prove or disprove a given
proposition, and has no application where plaintiff's entire
case rests upon a single undisputed fact.^^ 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 instruction may be based on facts
so selected, if their effect cannot be varied by others which
may have been proved.^^ 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 hypothesis assumed, may justify an appli-
cation for other and different instructions.^^ It has been
said that the court may properly call the attention of the jury
to evidence which is obscure, and which might escape their
19 Garrett's Adm'rs v. Garrett, 27 Ala. 687.
20 Hartmann v. Louisville & N, R. Co., 39 Mo. App. 88.
21 Keyes v. Fuller, 9 111. App. 528. , See, also. Love v. Gregg, 117
N. C. 467, where it was lield that an instruction that, if the jury
believe a single uncontradicted witness, the case is made out, was
not erroneous.
22 Beers v. Housatonuc R. Co., 19 Conn. 570.
23 Birney v. New York & W. Printing Tel. Co., 18 Md. 341.
(244)
Ch. 10] UNDULY EMPHASIZING MATTERS. § IQS
attention.^* Whether or not the charge gives undue prom-
inence to a portion of the evidence depends upon the nature
of the evidence, 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
prominently stated than his own.^''
§ 108. Giving undue prominence by repetition.
It has been held error to refer repeatedly to a fact or facts
in evidence, as this is calculated to give undue prominence
to such testimony.^* Instructions should not be so drawn as
to direct and repeatedly call attention to particular facts or
features not in themselves conclusive;^'' 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.^* It is doubtful v^hether the rule
against repetitions has any application to mere propositions
of law, correct in themselves. It would seem that a correct
rule' of law applicable to the case could not be too firmly im-
pressed upon the jury.^®
21 West V. Chicago & N. W. Ry. Co., 77 lawi, 657.
26 Irvin V. Kutrulf, 152 Pa. 609 ; Jamison v. Hawkins, 13 Pa.
Super. Ct. 372.
26 Gulf, C. & S. P. Ry. Co. v. Harriett, 80 Tex. 73; Mendes v.
Kyle, 16 Nev. 369; Meachem v. Hahn, 46 111. App. 149.
27Meachem v. Hahn, 46 111. App. 149; 2 Thompson, Trials, § 2380'.
28 Maes V. Texas & N. O. Ry. Co. (Tex. Civ. App.) 23 S. W.
725; Gulf, C. & S. P. Ry. Co. v. Gordon, 70 Tex. 80; Houston &
T. C. Ry. Co. V. Larkin, 64 Tex. 454. In this last case It was
held that the mere repetition, in a charge, of the abstract prin-
ciple that the jury might consider the physical and mental suffer-
ing the plaintiff had endured in estimating damages, cannot be
regarded as calculated to affect a jury of ordinary Intelligence, and
will afford no ground for reversal.
29 Murray v. New York, L. & W. R. Co., 103 Pa. 37. In Texas
it is held to be improper for the court, by frequent repetitions, to
place a principle of law too prominently before the jury, and
(245)
g 109 INSTRUCTIONS TO JURIES. [Ch. 10
§ 109. Instructions held erroneous as singfling out and giving
undue prominence to the evidence.
The following instructions have been held erroneous, as
singling out and giving undue prominence to portions of the
evidence: An instruction separating the circumstances of
the case from each other, and directing the jury that no one
of these circumstances in itself amounts to usury.^" An- in-
struction after a charge on self-defense has been given, in
which the facts proved or attempted to be proved, tending to
show that defendants did not act in self-defense, are set out,
and in which the court says that, if the facts recited existed,
defendant would be deprived of the benefit of the law of self-
defense.*-' An instruction which informs the jury that they
may consider threats made by the deceased against the de-
fendant in determining who brought on the difficulty, and
thus generate a doubt of defendant's guilt.*^ 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
requested Instructions violating this rule may be refused. Brady
V. Georgia Home Ins. Co., 24 Tex. Civ. App. 464; Powe'll v. Messer's
Adm'r, 18 Tex. 401; Traylor v. Townsend, 61 Tex. 147. But the
repetition of a principle of law making it too prbminent is not nec-
essarily ground for reversal, if the opinion of the court is not indi-
cated. Brady v. Georgia Home Ins. Co., supra. Where an instruc-
tion requiring the plaintiff to prove his case hy a preponderance
of evidence is given in connection with each issue of negligence
submitted to the jury, there is not such a repetition of the rule
of law as to give undue prominence to it. Martin v. St. Louis &
S. W. Ry. Co. (Tex. Civ. App.) 56 S. W. 1011. See, also, Gran v.
Houston, 45 Neb. 813.
30 Scott V. Lloyd, 9 Pet. (U. S.) 458.
31 Bonner v. Com., 18 Ky. Law Rep. 728, 38 S. W. 488. In this
case the court considered that, the facts reeitei were made too
prominent.
32 Crawford v. State, 112 Ala. 1.
(246)
Ch. 10] UNDULY EMPHASIZING MATTERS. § 109
or attendant circumstances.^^ An instruction singling out
an isolated fact, and telling the jury that, as matter of law,
it amounts to negligence.** An instruction singling out a
particular act, and stating that it would not constitute proper
care, the issue being contributory negligence. ^^ An instruc-
tion to "look to the declarations of the plaintiff, 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 slie left the state in 186G, and re-
fused to return when requested by her husband by letter, then
the abandonment is complete, and the jury will find for de-
fendant."^® Instructions that the jury may look to certain
facts in determining questions of fact before them.""*^ In-
structions that the jury cannot look to certain evidence in
determining a disputed question of fact.*^ Instructions that
certain facts in evidence are not conclusive evidence of one
of the ultimate facts in issue, irrespective of whether the
proposition of law is correct or not.** "It is not customary
or good practice to select the testimony of one witness, and
tell the jury that they cannot render a verdict upon that tes-
timony alone. While this may be true, the jury have a right
to consider the testimony * * * in connection with all
the other testimony in the case."*" An instruction which
33 Wabash R. Co. v. Stewart, 87 111. App. 446.
3i Meyer v. Pacific R. Co., 40 Mo. 151.
85 International & G. N. R. Co. v. Newman (Tex. Civ. App.) 40
S. W. 854.
»6 Burcham v. Gann, 1 Posey, Unrep. Cas. (Tex.) 333.
87 Hussey v. State, 86 Ala. 34; Jackson v. Robinson, 93 Ala. 157;
Alabama Great Southern R. Co. v. Sellers, 93 Ala. 9.
38 Stone V. State, 105 Ala. 60.
39 Merchants' Loan & Trust Co. v. Lamson, 90 111. App. 18.
io Dawson v. Falls City Boat Club (Mich.) 84 N. W. 618.
(247)
§ 109 INSTRUCTIONS TO JTXRIES. [Ch. 10
dwells repeatedly on the cases, where one witness is contra-
dicted 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.'*^ 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.*^ "An instruction reciting certain acts and dec-
larations 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, un-
less otherwise satisfactorily explained, have a tendency to
prove that the defendants did not make the alleged con-
tract."*^ An instruction "that a willful and intentional in-
troduction of a falsehood into a defense would tend to
strengthen a hypothesis of guilt, should such hypothesis exist
in the case, springing out of other part* of the testimony,"
since such instruction does not submit the evidence for the de-
fense a!nd that for the state upon equal terms.** An instruc-
tion that flight "is a silent admission by the defendant that
he is imwilling or unable to face the case against him. It is
in some sense — ^feeble or strong, as the ease may be — a con-
fession."*' An instruction singling out the conduct, de-
meanor, or expressions of the defendant, when their weight
and importance depend wholly on their combination with
other inculpatory facts, and directing the jury that they may
«i Lendberg v. Brotherton Iron Min. Co., 75 Mich. 81.
42 Pope V. Lowitz, 14 111. App. 96.
43 Brant v. Gallup, 5 111. App. 262.
*i Holt V. State, 62 Ga. 314.
45Alberty v. United States, 162 U. S. 499, In which the review-
ing court said that this instruction placed too much stress on
the fact of ilig'ht, and permitted the inference that this fact alone
might be sufficient to raise a presumption of guilt.
(248)
Ch. 10] UNDULY EMPHASIZING MATTERS. § 109
look to it alone, as tending to show the defendant's guilt.'*'
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.*'' An instruction singling
out the facts on which the defendant relies to escape liability
in a suit upon an accident policy.'*® An instruction giving
prominence to the opinions of the medical experts in a will
contest, where the issue was testamentary capacity.** An
instruction that, if the jury found the defendant guilty, they
should consider certain enumerated facts in determining what
punishment should be inflicted, where the facts enumerated
are favorable to the defendant, and the instruction does not
particularize other testimony having a contrary tendency.^"
An instruction that, if the jury believed the testimony of a
particular witness with regard to a disputed fact, they must
acquit.^^ 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.^^ An
instruction, in an action of ejectment, that a deed in evi-
dence did not convey the legal title, where such deed was
not the only evidence of title and right of possession.^* An
instruction which limits the jury, in determining whether a
bill of sale was absolute, or made upon a secret agreement
that a debt due another than the purchaser should be paid
isMcAdory v. State, 62 Ala. 154.
i- City of Chicago v. Spoor, 190 111. 340, reversing 91 111. App. 472.
48 Travelers' Ins. Co. v. Clark (Ky.) 59 S. W. 7.
49 Safe-Deposit & Trust Co. v. Berry (Md.) 49 Atl. 401.
00 Gilmore v. State, 126 Ala. 20, holding that such an instruc-
tion was properly refused.
61 Frost V. State, 124 Ala. 71.
62 Strehmann v. City of Chicago, 93 111. App. 206.
63 Anderson v. Canter (Kan. App.) 63 Pac. 285.
(249)
§ 110 INSTRUCTIONS TO JURIES. [Ch. 10
out of the proceeds of the property, to a consideration of
the instrument itself, and the parol evidence explanatory
thereof, there being other evidence, both parol and documen-
tary, bearing upon the issue. ^* A charge that the declara-
tions and admissions of a party to the action can be consid-
ered by the jury as any other evidence.^^ "An instruction
which selects conversations, testified to by the party ask-
ing it, and attempts to lay down certain conditions, upon
which, alone, such conversations can be regarded as proved
by a preponderance of the evidence."^^ 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
generate a doubt as to his guilt. "^^ Except in cases where
the law itself raises a particular presumption from a certain
fact or set of facts, the judge shoiild not give his opinion of
the probative value of a particular fact, and comment upon
any particular fact in evidence is equally vicious, whether its
effect is to exaggerate or diminish the importance of such fact
as evidence.*^ 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
discredits the testimony of the witnesses.*^
§ 110. Instructions held not erroneous as singling out and giv-
ing undue prominence to the evidence.
The following instructions have been held not erroneous,
as singling out and giving undue prominence to parts of the
evidence: An instruction that, if the jury shall find from
s4 Model Mill Co. v. McEver, 95 Ga. 701.
66 Dobbs V. Cates' Estate, 60 Mo. App. 658.
66 Home V. Walton, 117 111. 131.
67 Miller v. State, 107 Ala. 40.
ssLeeser v. Boekhoff, 33 Mo. App. 223.
60 Wilson V. Hotchkiss' Estate, SI Mich. 172.
(250)
Ch. 10] UNDULY EMPHASIZING MATTERS. § HO
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. If the facts alleged in the declara-
tion are sufficient to make out plaintiff's case, and the court
recites all of such facts, the objection cannot be urged that the
instruction did not state the facts going to establish the de-
fense.®" An instruction stating the law on the issue of negli-
gence in not having proper appliances to prevent the emission
of sparks, when such issue is not presented elsewhere, ex-
cept in instructions requested by the defendant."^ An in-
struction that, in passing on the testimony of all the wit-
nesses, the jury might consider any interest which such wit-
nesses might feel, is not objectionable as calling special at-
tention to their credibility.^^ 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.®^ An in-
struction containing a mere statement of the plaintiff's
claims.®* An instruction in an action of tort, that, if the
jury should give plaintiff's statements credit after consider-
ing the defendant's denial and all other testimony, the verdict
should be 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 reasonable or not,
and give it such weight as they should deem it entitled to.®^
An instruction commenting on the testimony of one side
more than on that of the other, if all the disputed facts be
CO Chicago & N. W. Ry. Co. v. Snyder, 117 111. 376; Frame v.
Badger, 79 111. 442.
61 International & G. N. R. Co. v. Newni^n (Tex. Civ. App.) 40
S. W. 854.
82 Chicago & A. R. Co. v. Anderson, 166 111. 572.
63 Jasper v. State (Tex. Cr. App.) 61 S. W. 392.
64 McCann v. UUman, 109 Wis. 574.
65 Schenk v. Dunkelow, 70 Mich. 89.
(251)
§ 111 INSTRUCTIONS TO JfRlBS. [Ch. 10
fairly STibmitted."" So, an instruction that, if the jury be-
lieve the evidence of a designated witness, they will find for
plaintiffs, has been held not erroneous, as giving undue promi-
nence to the testimony of the witness, where there were only
two witnesses for the plaintiffs and one of them was called
solely to corroborate the testimony of the witness mentioned.®''
On a trial of two defendants for an affray, where the testi-
mony of each tended to excuse himself, and to convict the oth-
er, an instruction to acquit one of the defendants if they be-
lieved 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.®* In an ac-
tion 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 condition 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 negligence.®* Where contradictory
testimony has been given, it is not error to instruct the jury
to consider the probability or improbability of such testi-
mony.'"*
§ 111. Singling out issues and theories.
The practice of singling out one among several important
issues, and submitting it to the jury as the controlling issue,
is improper ;^^ and it is likewise improper to give undue
prominence to the theory advanced by one of the parties.
osMcKnight v. Mathews (Pa.) 11 Atl. 676.
«r Gregg v. Mallett, 111 N. C. 74.
68 State V. Weathers, 98 N. C. 685.
69 Jackson v. Kansas City, Ft. S. & M. R. Co., 157 Mo. 621.
70 Bowsher v. Chicago, B. & Q. R. Co. (Iowa) 84 N. W. 958.
'iBowden v. Achor, 95 Ga. 243; Dallas & O. C. Elevated Ry.
Co. V. Harvey (Tex. Civ. App.) 27 S. W. 423.
(252)
CHAPTER XL
NECESSITY OR PROPRIETY OP DEFINITION BY COURT OP
TERMS USED, AND CORRECTNESS OF SUCH DEFINITION.
§ 112. Words and Terms of Ordinary Meaning.
113. Legal Terms or Words of Technical Meaning.
114. Defining Offense Alleged Against Defendant In Criminal
Prosecution.
§ 112. Words and terms of ordinary meaning.
It is not necessary that the meaning of ordinary words and
phrases, used in their customary and conventional sense,
should be explained by the court.^ They are presumed to
possess at least ordinary intelligence, and to understand the
meaning of words in common and ordinary use.^ Upon this
principle, it has been held unnecessary to define or explain
the meaning of the following words and phrases when used in
instructions, viz. : "Compel ;"* "feloniously ;"* "anger ;"'
"prostitution;"® "boarded," in action to recover for board;'
1 Holland v. McCarty, 24 Mo. App. 113; Warder v. Henry, 117
Mo. 530; State v. Sattley, 131 Mo. 464; State v. Cantlin, 118 Mo.
100; Berry v. Billings, 47 Me. 328; Prince v. Ocean Ins. Co., 40
Me. 481; Rogers v. Millard, 44 Iowa, 466; Eastman v. Curtis, 67
Vt. 432; Iowa State Sav. Bank v. Black, 91 Iowa, 490; Henderson
V. People, 124 111. 607; Humphreys v. State, 34 Tex. Cr. App.
434; Berry v. Billings, 47 Me. 328.
2 Berry v. Billings, 47 Me. 328; Rogers v. Millard, 44 Iowa, 466;
A. J. Anderson Electric Co. v. Cleburne Water, Ice & Lighting
Co., 23 Tex. Civ. App. 328.
8 St. Clair v. Missouri Pac. R. Co., 29 Mo. App. 76.
4 State V. Cantlin, 118 Mo. 100; State v. Weber, 156 Mo. 249,
56 S. W. 729 ; State v. Penney (Iowa) 84 N. W. 509.
5 Robinson v. State (Tex. Ci-. App.) 63 S. W. 869.
e Tores v. State (Tex. Cr. App.) 63 S. W. 880.
7 Rogers v. Millard, 44 Iowa, 466.
(253)
§ 112 INSTRUCTIONS TO JURIES. [Ch 11
"unfaithfulness ;"* "carelessly," when used in an action by a
landlord against his tenant for carelessly permitting stock to
go into an orchard and destroy fruit trees;'' "care;"" "pru-
dence;"*^ "negligence ;"^^ "guarantee;"*^ "ratify" and "rati-
fication;"*^ "adoption;" "repudiation;" "acquiescence;"*^
"holding up" a train ;*^ "substantial compliance" with the
terms of contract;** "remotely;"*® "by diligent inquiry;"""
"permit;"^* "authority," in an action to recover for extra
work, where the question was as to the authority of an archi-
tect to order extra work;^^ "contributed;"^* to "counte-
8 Berry v. Billings, 47 Me. 328.
» Warder v. Henry, 117 Mo. 531.,
10 Muehlhausen v. St. Louis R. Co., 91 Mo. 332.
11 Muehlhausen v. St. Louis R. Co., 91 Mo. 332.
12 Bdelpiann v. St. Louis Transfer Co., 3 Mo. App. 506. On the
other hand, the phrase "gross negligence" should be defined. War-
der V. Henry, 117 Mo. 530.
13 Reeds y. Lee, 64 Mo. App. 686.
15 Young V. Crawford, 23 Mo. App. 432. Such words are not
purely technical, legal expressions. Iowa State Sav. Bank v. Elaclt,
91 Iowa, 490.
16 Iowa State Sav. Bank v. Black, 91 Iowa, 490.
17 Territory v. McGinnis (N. M.) 61 Pac. 208, holding that the
words are universally understood to mean an assault on a train
with intent to cominit murder or some other felony.
18 A. J. Anderson Electric Co. v. Cleburne Water, Ice & Light-
ing Co., -23 Tex. Civ. App. 328; Linch v. Paris Lumber & Grain
Elevator Co., 80 Tex. 36. 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 assignment of
error upon the authority of the preceding case.
10 Muehlhausen v. St. Louis R. Co., 91 Mo. 332.
20 Cottrill v. Krum, 100 Mo. 397.
21 Humphreys v. State, 34 Tex. Cr. App. 434.
22 Holland v. McCarty, 24 Mo. App. 112.
23 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 ignorance was so dense as to
unfit them for jury service."
(254)
Oh. 11] DEFINITION OF TERMS. § 113
iiancce;"24 "willfully;" "maliciously. "^^ So it has Uen
held that it is unnecessary to define the expression in an in-
struction, "assenting to the reception in said bank of a de-
posit of * * * $30 or more," after the defendant knew
that such bank was in failing circumstances.^* The mere
fact that, under certain circumstances, courts of law have
been called upon to determine the meaning of such words,
does not destroy the popular character of the words.^^
i 113. Legal terms or words of technical meaning.
Where legal or technical terms, differing in meaning from
their popular use, or not generally known, are used in in-
structing the jury, it is always proper for the court to explain
their meaning to the jury,-^ and the court should do so,**
especially when requested.^" While it has been said, in some
cases, that it is indispensable that legal and technical terms
should be defined and explained,'^ it has nevertheless been
held in others that a failure to explain such terms will not be
a ground for reversal, unless a definition or explanation was
asked by the party claiming to have been prejudiced there-
24 Cooper V. Johnson, 81 Mo. 483.
25 State V. Harkins, 100 Mo. 666. But see Dyrley v. State (Tex.
Cr. App.) 63 S. W. 631.
26 state V. Sattley, 131 Mo. 464.
2T Edelmann v. St. Louis Transfer Co., 3 Mo. App. 506.
28 Gibson v. Cincinnati Enquirer, 5 Cent. Law J. 380, Fed. Cas.
No. 5,392; Cobb v. Covenant Mut. Ben. Ass'n, 153 Mass. 176.
2!)Rusli v. French, 1 Ariz. 99; People v. Byrnes, 30 Cal. 207;
Jarnigan v. Fleming, 43 Miss. 710; Mullins v. Cottrell, 41 Miss.
291; Stewart v. City of Clinton, 79 Mo. 603; Digby v. American
Cent. Ins. Co., 3 Mo. App. 603; Fllnt-Walling Mfg. Co. v. Ball, 43
Mo. App. 504; Dyer v. Brannock, 2 Mo. App. 432; Rollings v. Cate,
1 Heisk. (Tenn.) 97; Wheeler v. State, 23 Tex. App. 598.
30 City of Junction City v. Blades, 1 Kan. App. 85.
81 Schmidt v. Sinnott, 103 111. 160; De Los Santos v. State (Tex.
Cr. App.) 31 S. W. 395.
(255)
§ 113 INSTRUCTIONS TO JURIES. [Ch. 11
by.^* So it has been held that the unexplained use, in an in-
struction, of a word having a technical legal meaning, ^vhich
is not essentially different from the meaning in common use,
is not ground for reversing a judgment.^^ It has also been
held that, where a word is used in an instruction which might
be taken in different senses, and the jury follows the instruc-
tion in the sense in which it was intended, a judgment on the
verdict will not be reversed because the jury might have fol-
lowed it in the sense in which it was not intended.^* And
where an instruction is given on the request of a party, he
cannot complain that it is insufficient in definition or explana-
tion of terms used therein. If he desires a correct definition
of the terms used, he must ask for it.^® Requested instruc-
tions ■^hich contain technical terms needing explanation may
be refused.^''
It has been held necessary to explain the following words
and terms: "Warranty ;"^'^ "willfully;"®* "wrongful con-
32 Schneider v. Hosier, 21 Ohio St. 98; Lagow v. Glover, 77 Tex.
448; Johnson v. Missouri Pac. R. Co., 96 Mo. 340. In this last
case 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 to, nor have found, any authority going to
the extent of saying that the mere omission to give an instiuc-
tion defining the above terms, where none is asked, is reversible
error."
33 Miller v. Woolman-Todd Boot & Shoe Co., 26 Mo. App. 57;
Murphy v. Creath, 26 Mo. App. 581.
31 Parkhurst v. Masteller, 57 Iowa, 474.
35 Kelley v. Cable Co., 7 Mont. 70.
seBoogher v. Neece, 75 Mo. 383; Fletcher v. Milbiirn Mfg. Co.,
35 Mo. App. 321.
37 Flint-Walling Mfg. Co. v. Ball, 43 Mo. App. 504.
38Dyrley v. State (Tex. Cr. App.) 63 S. W. 631; Sparks v. State,
23 Tex. App. 447; Thomas v. State, 14 Tex. App. 200; "Wheeler v.
State, 23 Tex. App. 598; Trice v. State, 17 Tex. App. 43. An in-
struction defining the term "willful" as "without reasonable ground
for believing the act to be lawful, or a reckless disregard of the
rights of others," has boon held to give a correct definition. Finney
(256)
Ch. 11] DEFINITION OP TERMS. § I13
duct ;"*» "material to the issues ;"*" "material facts ;"*^ "cor-
roborated ;"*^ "exemplary damages;"** "malice;"** "fix-
tures;"*® "adverse possession;"*' "unlawfully" (as applica-
ble to a homicide or a murder trial) f "gross negligence ;"**
"color of title ;"*' "evidence in the case, and the circumstan-
ces surrounding the same;"®" "insane delusion" (on the trial
of an issue devisavit vel non, involving the insanity of the tes-
tator) f^ "preponderance of evidence ;"°^ "exciting state of
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 violation of the statute, explains to the jury
that the act alleged to constitute a violation must have been com-
mitted with intent to defraud, it is not necessary for the court to
explain the term "willfully," also used in the statute, as willfulness
is necessarily implied in intent to defraud. Wheeler v. State,
23 Tex. App. 598.
88 Lesser v. St. Louis & Suburban Ry. Co., 85 Mo. App. 326, hold-
ing that a failure to instruct as to what facts would, in law, con-
stitute wrongful conduct, is erroneous, as it submits to the jury
questions both of law and fact.
40 State v. McLaln, 159 Mo. 340.
41 Digby V. American Cent. Ins. Co., 3 Mo. App. 603.
*2 State V. McLain, 159 Mo. 340.
43 Hayes v. St. Louis R. Co., 15 Mo. App. 584.
44 Morgan v. Durfee, 69 Mo. 469.
45 Grand Lodge of Masons v. Knox, 27 M" 315.
4« Dyer v. Bannock, 2 Mo. App. 432.
47 People V. Byrnes, 30 Gal. 207.
4s Wiser v. Chesley, 53 Mo. 547.
49 Boogher v. Neece, 75 Mo. 383.
•oDerham v. Derham (Mich.) 83 N. W. 1005.
"Mullins V. Cottrell, 41 Miss. 291.
B2 In Missouri it has been held to be the better practice to define
"preponderance of evidence," though a failure to do so is not ground
for reversal. Steinwender v. Creath, 44 Mo. App. 360; Berry v.
Wilson, 64 Mo. 164; Hill v. Scott, 38 Mo. App. 370. And instruc-
tions using the term without explanation may be properly refused.
MacMn v. People's St. Ry. & E. L. & P. Co., 45 Mo. App. 82; Clarke
T. Kitchen, 62 Mo. 316.
In Texas it has been held unnecessary to define the term, upon
(257)
17 — Ins. to Juries.
§ 114 INSTRUCTIONS TO JURIES. [Ch. 11
fear" (in an instruction that, if plaintiff took Confederate
money in payment of a note, under an exciting state of fear,
the payment would not constitute a legal payment) f^ "to
dispose of property with the intent to defraud creditors."®*
§ 114. Defining offense alleged against defendant in criminal
proseciition.
In instructing the jury, the court is not compelled to define
the offense charged in the very words of elementary text
writers. A correct definition in language of the court's own
choosing will sufiice.®^ If the offense is statutory, it may be
defined in the exact language of the statute,^" and it has been
the ground that it has a well-known popular meaning. Gulf, C. &
S. F. Ry. Co. V. Reagan (Tex. Civ. App.) 34 S. W. 798. Where one
witness is opposed by three, an instruction is erroneous, as amount-
ing to a comment on the weight of the evidence, that "you will de-
cide all issues submitted to you by this charge by a preponderance
of the evidence. By the term 'preponderance of the evidence' is
meant not necessarily the greater number 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 circum-
stances of the case." St. Louis S. W. Ry. 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, where it was held that
an instruction that plaintiff must establish the material allegations
of his complaint by a preponderance of testimony was not erro-
neous, the court saying that it would be presumed that the jury un-
derstood the word "testimony" as referring to all the evidence.
63 Rollings V. Cate, 1 Heisk. (Tenn.) 97.
61 Matthews v. Boydstun (Tex. Civ. App.) 31 S. W. 814.
65 State V. Clary, 24 S. C. 117. An instruction, in a prosecution
of a bank president for receiving deposits, knowing that the bank
was insolvent, that "a crime consists in the violation of a public
law, in the commission of which there shall be a union, or joint
operation, of act and intention, or criminal negligence," being the
exact language of the statute, is correct. McClure v. People, 27
Colo. 358.
66 Duncan v. People, 134 111. 110.
(258)
Ch. 11] DEFINITION OF TERMS. | II4
said to be the better practice to do so.®'' iN'evertheless, the
use of other language conveying the same meaning, and not
liable to misconstruction by the jury, is not erroneous f^ but
no element of the offense should be overlooked. ®® In stating
the statutory definition of a crime, it is unnecessary to state
the penalty.®" It has been held not improper for the court
to give the jury a general description of the offense, although
embracing modes of commission not pertinent to the case, pro-
vided a definition is subsequently given applicable to the
pleadings and evidence.®^
67 Long V. State, 23 Neb. 33; State v. O'Brien, 18 Mont. 1.
B8 Long v. State, 23 Neb. 33. It is not necessary to copy the
statute into the instructions, where the charge, as given, submitted
all the constituent elements of the offense. Adkins v. State (Tex.
Cr. App.) 56 S. W. 63.
69 Hix V. People, 157 111. 382 ; Adkins v. State (Tex. Cr. App.) 56
S. W. 63.
«o Currier v. State (Ind.) 60 N. E. 1023.
B State V. Anderson, 10 Or. 448.
(259)
CHAPTER XIL
NECESSITY OP INSTRUCTING IN WRITING.
5 115. Rule at Common Law.
116. Statutory Rules.
117. Effect of Failure to Instruct in Writing When Required.
118. Same — Digest of Decisions.
119. When Statute Applies — What are Instructions.
120. Same — Digest of Decisions.
121. Sufficiency of Compliance with Statute.
122. Same — Oral Explanations, Modifications, and Additions.
123. Same — Subseciuent Reduction of Oral Charge to Writing.
124. Same — Reading from Books and Papers.
125. Waiver or Loss of Right to Written Instructions.
§ 115. Eule at common law.
At common law, and in the absence of statute, instructions
may be either oral or written, at the discretion of the trial
judge. When an instruction contains the law applicable to
the case, so explained as to be understood by the jury, and
there is no statute governing the matter, it can make no es-
sential difference whether such instruction be given orally
or in writing; that is a matter which is left entirely to the
discretion of the court, and the manner in which that dis-
cretion has been exercised is not subject to criticism in the
appellate court.*
1 Smith V. Crichton, 33 Md. 103. In Indian Territory, a party can-
not demand a reduction of the charge, given hy the court of its own
motion, to writing, as a matter of right in civil cases. Gulf, C. & S.
F. Ry. Co. V. Campbell, 49 Fed. 354, 4 U. S. App. 133, followed in
Baer v. Rooks (C. C. A.) 50 Fed. 898. The practice is governed by
Mansf. Dig. Ark. § 5131, subd. 5, which only requires requested in-
structions to be reduced to writing. Gulf, C. & S. F. Ry. Co. v.
(260)
Ch. 121 INSTRUCriNG IN WRITING. § 117
§ 116. Statutory rules.
Statutes exist in many states requiring instructions in all
cases to be entirely in writing. In soine states, however,
the statutes require written instructions only in cases when
a timely request has been made therefor.^ The object of
these statutes is to insure the preservation of the instruc-
tions 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.^ But it has been
held that a statute requiring instructions to be in writing
is not repealed by a subsequent statute providing for an offi-
cial stenographer, and requiring him to correctly report all
the proceedings of the court.* In some states, however, the
statute only requires written instructions in cases where the
instructions are not taken down by the stenographer.'
§ 117. Effect of failure to instruct in writing when required.
The giving of an oral instruction in a case where the stat-
.ute requires written instructions constitutes error for which
the judgment may be set aside or a new trial granted, the
Campbell, 49 Fed. 354, 4' U. S. App. 133, 1 C. C. A. 293; Same y.
Childs, 49 Fed. 358, A U. S. App. 200, 1 C. C. A. 297. Where a party
desires to except to an instruction, it is liis undoubted right to have
it reduced to writing. Smith v. Crichton, 33 Md. 103.
2 See the codes and statutes of the various states. See, also, the
two succeeding sections.
3 People V. Hersey, 53 Cal. B74; People v. Leary, 105 Cal. 500;
State v._Preston (Idaho) 38 Pae. 694; State v. Stewart, 9 Nev. 120;
Jenkins v. Wilmington & W. R. Co., 110 N. C. 442.
* Bowden v. Achor, 95 Ga. 243. See, also. Wheat v. Brown, 3 Kan.
App. 431; Rich v. Lappin, 43 Kan. 666. But see State v. Preston
(Idaho) 38 Pac. 694.
BPen. Code Cal. § 1093; People v. Leary, 105 Cal. 500; People v.
Ferris, 56 Cal. 442.
(261)
§ 117 INSTRUCTIONS TO JURIES. [Oh. 12
statute being regarded as mandatory.'^ Even though it be
conceded that the bill of exceptions fairly presents the in-
structions given, yet, that security against mistakes which
the statute av^ards as a right having been denied, the judg-
ment must be reversed.* The error may, however, have been
harmless to appellant, in which case it will not be sufficient
ground for a reversal.® This rule is but simple justice, for
TMazzia v. State, 51 Ark. 177; Anderson v. State, 34 Ark. 257;
National Lumber Co. v. Snell, 47 Ark. 407; People v. Beeler, 6 Cal.
246; People v. Sanford, 43 Cal. 29; People v. Hersey, 53 Cal. 575;
Wilson V. Town of Granby, 47 Conn. 59; Ellis v. People, 159 111.
337; Toledo & W. Ry. Co. v. Daniels, 21 Ind. 260; Rising-Sun & V.
Turnpike Co. v. Conway, 7 Ind. 187; Shafer v. Stinson, 76 Ind. 376;
Bradway v. Waddell, 95 Ind. 170; Wheat v. Brown, 3 Kan. App.
431; City of Atchison v. Jansen, 21 Kan. 560; State v. Potter, 15
Kan. 302; Insurance Co. v. Trustees C. P. Church, 91 Tenn. 136.
Contra, Patterson v. Kountz, 63 Pa. 246; Scheuing v. Yard, 88 Pa.
286. In Texas, the statute is held to be mandatory in criminal
cases, but merely directory in civil cases. Pen. Code Cal. § 1093, pro-
viding that, if the charge be not given in writing, it must be taken
by the phonographic reporter, is mandatory. People v. Hersey, 53
Cal. 575.
8 Hardy v. Turney, 9 Ohio St. 400.
9 National Lumber Co. v. Snell, 47 Ark. 407 ; People v. Leary, 105
Cal. 487; Fry v. Shehee, 55 Ga. 208; Greathouse v. Summerfleld, 25
111. App. 296; Mutual Ben. Life Ins. Co. v. Miller, 39 Ind. 475; Hall
V. Carter, 74 Iowa, 364; State v. Sipult, 17 Iowa, 575; Com. v. Barry,
11 Allen (Mass.) 263; Hogel v. Lindell, 10 Mo. 484; O'Donnell v.
Segar, 25 Mich. 369. See, also, Allen v. Rundle, 50 Conn. 33. But
see Ray v. Wooters, 19 111. 82, wherein it was held that an imma-
terial modification of a written Instruction constituted error. Thus,
an oral instruction relating wholly to a conceded matter, although
erroneous. 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 instructions were giveti. Greathouse v. Summerfleld,
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.
Fry V. Shehee, 55 Ga. 208. Where it cannot be ascertained what
the oral instructions were, the judgment must be reversed. Aliter
(262)
Ch. 12] INSTRUCTING IN WRITING. § H?
the oral instructions may have been given without the solici-
tation of the party obtaining the verdict, or even against
his consent.^" But the mere fact that the oral instructions
given were correct will not prevent a reversal.''^ In Indi-
ana it has been held that the judgment will be reversed, even
though the instructions were favorable to the appellant. -"^
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."*' Where the statute in force requires
instructions to be in writing only in cases where such a re-
quest has been made, in the absence of a request the statute
has no application,** and the common-law rule-"' prevails.
Under such circumstances, it is not error to give oral in-
structions.*^ Where the appellant has not himself request-
ed written instructions, the failure of the court to instruct
in writing, upon the request of the appellee, is not available
where tbey were preserved in the hill of exceptions, and were
favorahle to, or did not affect, the party complaining. Hogel v.
Lindell, 10 Mo. 484.
10 Hogel V. Lindell, 10 Mo. 484.
11 Dorsett V. Crew, 1 Colo. 18; City of Atchison v. Jansen, 21 Kan.
560. It is reversible error whether the oral instruction is in itseH
right or wrong. Hardin v. Helton, 50 Ind. 320.
i2Widner v. State, 28 Ind. 394. See, also, Shafer v. Stinson, 76
Ind. 376.
13 In such ease, the court should direct a mistrial. Jenkins v.
Wilmington & W. R. Co., 110 N. C. 438, 15 S. E. 193.
1* See infra, § 125, "Waiver or Loss of Right to Written Instruc-
tions."
15 See supra, § 115, "Rule at Common Law."
16 Anderson v. State, 34 AtH. 257; Bradford v. People, 22 Colo.
157; Luster v. State, 23 Fla. 339; Sutherland v. Hankins, 56 Ind.
343; Davis v. Wilson, 11 Kan. 74; State v. Chevallier, 36 La. Ann.
85; Blackburn v. State, 23 Ohio St. 146.
IT Jaqua V. Cordesman & Egan Co., 106 Ind. 141. See, also, Mu-
(263)
§ 118 INSTRUCTIONS TO JURIES. [Ch- 12
§ 118. Same — Digest of decisions.
Arkansas.
It is error to charge orally -when requested to charge in writ-
ing. Anderson v. State, 34 Ark. 257. Or to make oral expla-
nations of a written charge. Mazzia v. State, 51 Ark. 177, 10 S.
W. 257. The error may be harmless. See National Lumber Co. v.
Snell, 47 Ark. 407, 1 S. W. 708. Const, art. 7, § 23, requires the
charge or instructions to be in writing, if requested by either party.
Arizona.
In criminal cases, it is reversible error to charge orally un-
less written instructions are expressly waived. Territory v. Ken-
nedy, 1 Ariz. 505; Territory v. Duffield, 1 Ariz. 58; Territory v.
Gertrude, 1 Ariz. 74.
California.
The act of 1855, § 1 (Code Civ. Proc. § COS, requiring instructions
to be written, is mandatory, and not directory. People v. Beeler, 6
Cal. 246. Judgment reversed because of oral instructions. People
V. Beeler, 6 Cal. 246; People v. Demint, 8 Cal. 423; People v. Payne,
8 Cal. 341; People v. Ah Pong, 12 Cal. 345; People v. Woppner, 14
Cal. 437; People v. Sanford, 43 Cal. 29. An oral modification of a
written instruction is erroneous. People v. Payne, supra. In crim-
inal cases, the giving of oral iostructions is reversible error (People
V. Carrillo, 70 Cal. 643; People v. Cox, 76 Cal. 281; People v. Hersey,
53 Cal. 575; People v. Curtis, 76 Cal. 57), unless taken down by the
official reporter (Pen. Code Cal. § 1093; People v. Leary, 105 Cal.
500; People v. Hersey, supra), unless the defendant consents or
waives his right to written instructions (People v. Hersey, 53 Cal.
574; People v. Chares, 26 Cal. 78; People v. Sanford, 43 Cal. 29;'
People V. Woppner, 14 Cal. 437; People v. Trim, 37 Cal. 274; People
V. Max, 45 Cal. 254; People v. Ah Fong, 12 Cal. 345; People v. Bum-
berger, 45 Cal. 650; People v. Kearney, 43 Cal. 383). The consent
of the defendant cannot be presumed from his presence and failure
to object at the time the oral instruction was given. People v.
Chares, 26 Cal. 78; People v. Sanford, 43 Cal. 29; People v. Prospero,
44 Cal. 186. The defendant need not except to the charge at the
time it was given. People v. Ah Fong, 12 Cal. 345. An oral charge
in the absence of the reporter is error. People v. Hersey, 53 Cal.
674; People v. Leary, 105 Cal. 500. Where the reporter is present,
his failure to perform his duty and take down fully and correctly
tual Ben. Life Ins. Co. v. Miller, 39 Ind. 475. Compare Toledo &
W. Ry. Co. V. Daniels, 21 Ind. 256; Newton v. Newton, 12 Ind. 527.
(264)
Ch. 12] INSTRUCTING IN WRITING. § Us
the charge as given will not be imputed as error to the court. The
judge may, in such case, put into the bill of exceptions what was
actually said. People v. Cox, 76 Cal. 281, explained in People v.
Leary, 105 Cal. 500.
Colorado.
Instructions must be in writing. Mills' Ann. Code, § 187, subdivi-
sion 6; Gile v. People, 1 Colo. 60; Montellus v. Atherton, 6 Colo.
224; Lee v. Stahl, 9 Colo. 208; Brown v. Crawford, 2 Colo. App. 235,
affirmed Crawford v. Brown, 21 Colo. 272; Wettengel v. City of
Denver, 20 Colo. 552, 39 Pac. 343. Instructions required to be in
writing cannot be orally qualified or modified. Dorsett v. Crew, 1
Colo. 18. In criminal cases, under Mills' Ann. St. § 1468, oral in-
structions may be given unless written instructions are requested.
Bradford t. People, 22 Colo. 157. Oral instructions are reversible
error where counsel do not agree. Wettengel v. City of Denver, 20
Colo. 552; Lee v. Stahl, 9 Colo. 208. And such consent must be af-
firmatively shown. Dorsett ▼. Crew, 1 Colo. 18; Gile v. People, 1
Colo. 60.
Connecticut..
Revision 1875, p. 442, § 2 (now appealed, — ^Acts 1884, p. 375), re-
quired a written charge upon written requests. This was held to be
mandatory. Wilson v. Town of Granby, 47 Conn. 59. Noncompli-
ance was ground for a new trial. Allen v. Rundle, 50 Conn. 33.
Florida.
Oral instructions held erroneous. Doggett v. Jordan, 2 Fla.
541, 3 Fla. 215; Dixon v. State, 13 Fla. 637, 650; Long v. State,
11 Fla. 295. "The judge may omit to charge the jury, without error,
when no instructions are specially requested in writing, but when
he charges the jury he must confine himself to the law applicable
to the case, and reduce his charge to writing before it is delivered."
Long v. State, 11 Fla. 295. 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. In Duggan v. State, 9 Fla. 516, it was held, under
Act Jan. 4, 1848, § 8, that a judgment in a criminal case would al-
ways be reversed where it did not appear that the charge was re-
duced to writing and filed in the case. But in the later case of
Luster v. State, 23 Fla. 339, it was held that the charge might be
oral, in the absence of .a timely request for a charge in writing. So,
also, the error may be Vi^aived ty failure to object before the re-
tirement of the jury. Gibson v. State, 26 Fla. 109. See, generally,
infra, § 126, "Waiver or Loss of Right to Written Instructions."
(265)'
§ 118 INSTRUCTIONS TO JURIES. [Ch 12
Georgia.
Failure to charge in writing when requested is reversible er-
ror. Code, § 244; Fry v. Shehee, 55 Ga. 208; Willis v. State, 89 Ga.
188; Jones v. State, 65 Ga. 507; Bowden v. Achor, 95 Ga. 243. Com-
pare Miller v. Mitchel, 38 Ga. 312.
Illinois.
Giving oral instructions constitutes error. Illinois Practice Act
(Starr & C. Ann. St. 1896, p. 3047) § 52; McBwen v. Morey, 60
111. 32; Ellis v. People, 159 111. 337; Ray v. Wooters, 19 111. 82; Great-
house V. Summerfield, 25 111. App. 296; Bates v. Ball, 72 111. 112;
Illinois Cent. R. Co. v. Hammer, 85 111. 526; City of Abingdon v.
Meadows, 28 111. App. 442; Arcade Co. v. Allen, 51 III. App. 305;
Brown v. People, 4 Gilman, 439.
Indiana.
It is reversible error to charge orally when requested to
charge in writing. Jaqua v. Cordesman & Bgan Co., 106 Ind.
141; Smurr v. State, 88 Ind. 504; BottorfC v. Shelton, 79 Ind. 98;
Hauss V. Niblack, 80 Ind. 407; Laselle v. Wells, 17 Ind. 33; Provines
v. Heaston, 67 Ind. 482; Bosworth v. Barker, 65 Ind. 595; Bradway
V. Waddell, 95 Ind. 170; Stephenson v. State, 110 Ind. 358, 11 N. E.
360; Davis v. Foster, 68 Ind. 238; Toledo & W. Ry. Co. v. Daniels,
21 Ind. 256; Newton v. Newton, 12 Ind. 527; Hardin v. Helton, 50
Ind. 319; Gray v. Stivers, 38 Ind. 197; Shafer v. Stinson, 76 Ind. 374.
Iowa.
All instructions must be in writing, and it is error to in-
struct orally. Code, §§ 2784, 4440; Head v. Langworthy, 15 Iowa,
235; Pierson v. Baird, 2 G. Greene, 235; State v. Birmingham, 74
Iowa, 407; Harvey v. Tama County, 53 Iowa, 228; Parris v. State, 2
G. Greene, 449; State v. Harding, 81 Iowa, 599.
Kansas.
In criminal cases, the judge must instruct the jury in writ-
ing, and the charge must be filed away among the papers in
the cause. Gen. St. 1901, § 4722. Noncompliance is reversible er-
ror. State V. Bennington, 44 Kan. 583; State v. Huber, 8 Kan. 447;
State V. Potter, 15 Kan. 302. In civil cases, the court must instruct
in writing when requested so to do by either party. Code Civ. Proc.
§ 275, subd. 5. Failure to do so is reversible error. Rich v. Lappin,
43 Kan. 666; Wheat v. Brown, 3 Kan. App. 431; City of Atchison v.
Jansen, 21 Kan. 560; Jenkins v. Levis, 23 Kan. 255.
Kentucky.
In all criminal cases, the instructions must be in writing, and
it is error to charge orally. Payne v. Com., 1 Mete. 377; Cop-
page V. Com., 3 Bush, 533. In civil cases, written instructions
(266)
Ch. 12] INSTRUCTING IN WRITING. § 118
must be given -when requested by either party. Civ. Code, § 317,
subd. 5; Louisville & N. R. Co. v. Banks, 17 Ky. Law Rep. 1065,
33 S. W. 627; Ferguson v. Fox's Adm'r, 1 Mete. 86.
Louisiana.
Failure to charge in writing upon a timely request is reversi-
ble error. Rev. St. § 2133; State v. Porter, 35 La. Ann. 535;
State V. Gilmore, 26 La. Ann. 599; Kellar v, Belleaudeau, 5 La.
Ann. 609; State v. Swayze, 30 La. Ann. 1323.
Massachusetts.
All instructions must be reduced to writing and filed in the
case. Pub. St. 1882, p. 842, § 11.
Michigan.
In all cases, the charge must be in writing. O'Donnell v. Segar,
25 Mich. 369.
Missouri.
All instructions must be In writing. Oral Instructions are
reversible error. Hogel v. Lindell, 10 Mo. 483; Walsh v. St. Louis
Drayage Co., 40 Mo. App. 339; State v. De Mosse, 98 Mo. 340;
City of Cape Girardeau v. Fisher, 61 Mo. App. 509; Mallison v. State,
6 Mo. 399.
Nebraska.
All instructions must be in writing, and the giving of an oral
instruction is reversible error. Comp. St. c. 19, §§ 52-56; Hartwig
V. Gordon, 37 Neb. 657; Horback v. Miller, 4 Neb. 43; Yates v. Kin-
ney, 23 Neb. 648; Bhrlich v. State, 44 Neb. 810.
Nevada.
All Instructions must be in writing, unless by mutual con-
sent. Gen. St. 1885, § 355 ("Crlm. Prac. Act"); People v. Bonds,
1 Nev. 33.
North Carolina.
All instructions must be in writing, unless by mutual consent.
Comp. Laws, § 4320; People v. Bonds, 1 Nev. 33.
North Carolina.
Instructions must be in writing, when so requested. Noncompli-
ance is reversible error. Code, § 414; Currie v. Clark, 90 N. C. 355;
State V. Connelly, 107 N. C. 463; Jenkins v. Wilmington & W. R. Co.,
110 N. C. 438.
Ohio.
It is error to charge orally after a timely request to charge in writ-
ing. Rev. St. 1890, § 5190, as amended by Act March 3, 1892 (Bates'
Ann. St. § 5190); Householder v. Granby, 40 Ohio St. 430; Village of
Monroevllle v. Root, 54 Ohio St. 523; Hardy v. Turney, 9 Ohio St. 400.
Pennsylvania.
Although it is the duty of the court, under the statute, to reduce
to writing and file the points and answers and charge, a failure
(267)
I 119 INSTRUCTIONS TO JURIES. [Ch. 12
to do so is not reversible error. It is sufficient, on error, that the
points were sufficiently answered in the charge. Scheuing v. Yard,
88 Pa. 286; Patterson v. Kountz, 63 Pa. 246.
Tennessee.
In civil cases, court must charge in writing when so request-
ed, and it is reversible error to refuse to do so. Code 1896,
§ 4683; Insurance Co. v. Trustees C. P. Church, 91 Tenn. 136;
Equitable Fire Ins. Co. v. Trustees C. P. Church, 91 Tenn. 135. In
criminal cases, where a felony is charged, every word of the charge
must be in writing (Acts 1873, c. 57), and an oral charge is re-
versible error. Code 1896, § 7186; Manier v. State, 6 Baxt. 595,
overruling Logston v. State, 3 Heisk. 414; Newman v. State, 6 Baxt.
164; Huddleston v. State, 1 Baxt. 109. In misdemeanor cases, a
written charge is unnecessary, and a request therefor may be re-
fused. Dobson V. State, 5 Lea, 277.
Texas.
In criminal cases, it is reversible error to charge orally. Win-
frey v. State (Tex. Cr. App.) 56 S. W. 919; Carr v. State, 41
Tex. 544; Clark v. State, 31 Tex. 574; Kelley v. State (Tex. Cr. Apj).)
31 S. W. 390; Smith v. State, 1 Tex. App. 408; Gibbs v. State, 1 Tex.
App. 13; West v. State, 2 Tex. App. 210; Lawrence v. State, 7 Tex.
App. 192; Trippett v. State, 5 Tex. App. 595; Jordan v. State, 5 Tex.
App. 422; Williams v. State, 5 Tex. App. 615; Harkey v. State, 33
Tex. Cr. App. 100. In civil cases, the statute is held to be directory
merely, and a violation of it cannot be assigned .as error. Reid v.
Reid, 11 Tex. 586; Galveston, H. & S. A. Ry. Co. v. Dunlavy, 56
Tex. 256; Boone v. Thompson, 17 Tex. 605; Chapman v. Sneed, 17
Tex. 428; Parker v. Chancellor, 78 Tex. 527; Toby v. Heidenheimer,
1 White & W. Civ. Cas. Ct. App. § 795; Gulf, C. & S. F. Ry. Co. v.
Holt, 1 White & W. Civ. Cas. Ct. App. § 835. Contra, Levy v. Mc-
Dowell, 45 Tex. 220.
Wisconsin.
Under St. Wis. § 2853, instructions must be in writing, whether
requested or not. Stringham v. Cook, 75 Wis. 590; Penberthy v.
Lee, 51 Wis. 261.
5 119. When statute applies — What are instructions.
Statutes requiring instructions to be in writing apply only
to "instructions," technically so called. ISTot every remark
by the judge to the jury need be in writing, for not every
(268)
Ch. 12] INSTRUCTING IN WRITING. § 119
such communication is an instruction,^® Tlie court may
properly make oral statements to the jury in reference to
the form of the verdict, the manner in which the trial has
heen conducted, the behavior of the jury or counsel or par-
ties, or any other oral statement which does not relate to the
rules of law applicable to the case, or which is not intended
to guide the jury in their examination of the evidence.^*
Thus, remarks made to the jury just prior to giving written
instructions, commenting upon the trial as a long and fa-
tiguing one as a reason for impatience manifested by the
court with delays of counsel, and cautioning the jury not to
be influenced by any impatient remark, are not within the
rule.^" itTeither is a statement addressed to counsel of one
of the parties, though in the hearing of the jury, of the rea-
sons for refusing instructions requested.^* "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 dis-
regarded."^^ Remarks made to the jury concerning their du-
ties as jurors, not relating particularly to the case, but of a
general character, need not be in writing.^*
In order to fall within the statutory 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.^* Instructions, proper,
18 "The word 'charge,' as used In the statutes, is not intended to
include any and every question and answer passing between the
court and jury." Millard v. Lyons. 25 Wis. 516.
10 See McCallister v. Mount, 73 Ind. 559 ; Lehman v. Hawks, 121
Ind. 541; Hasbrouck v. City of Milwaukee, 21 Wis. 219; Malachi v.
State, 89 Ala. 134; State v. Potter, 15 Kan. 302.
20 Hasbrouck v. City of Milwaukee, 21 Wis. 219.
21 Hasbrouck v. City of Milwaukee, 21 Wis. 219.
22 State V. Potter, 15 Kan. 302.
23 Moore v. City of Platteville, 78 Wis. 644.
2* Hasbrouck v. City of Milwaukee, 21 Wis. 217; Boggs v. United
States, 10 Okl. 424.
(269)
§ 120 INSTRUCTIONS TO JURIES. [Ch. 12
are directions as to tlie law of the case.^^ A statement'
not bearing upon questions of law or fact involved in the is-
sue is not to be taken as a part of the instruction;^® and it
has been quite uniformly held that remarks made to the
jury upon matters not relating particularly to the case on
trial, and of a general character as to their duties as jurors,
are not a part of the instructions required by the statute to
be in writing, and that such remarks will not be a good
ground for reversal merely because made orally.^'' ISTumer-
ous illustrations of these principles will be found in the fol-
lowing section.
§ 120. Same — Digest of decisions.
Remarks held to constitute instructions.
A statement by the court to the jury that "the defendant's attor-
ney had let down the fence, and that all Is now hefore the jury,"
25Lawler v. McPheeters, 73 Ind. 579; Fry v. Shehee, 55 Ga. 208;
Bills V. People, 159 111. 337; Illinois Cent. R. Co. v. Wheeler, 149
111. 525; Dodd v. Moore, 91 Ind. 522; Stanley v. Sutherland, 54 Ind.
339; Dupree v. Virginia Home Ins. Co., 92 N. C. 417; Jenkins v.
Wilmington & W. R. Co., 110 N. C. 438. Statements of rules of law
governing the matter in issue or th4 amount of recovery are in-
structions. Bradway v. Waddell, 95 Ind. 170; Liwler v. McPhee-
ters, 73 Ind. 579; Stanley v. Sutherland, 54 Ind. 339. What the
court may say in regard to the principles of law applicahle 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. Hasbrouck v.
City of Milwaukee, 21 Wis. 217; Millard v. Lyons, 25 Wis. 517. 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.
20 Hasbrouck v. City of Milwaukee, 21 Wis. 219; McCallister v.
Mount, 73 Ind. 559; Lawler v. McPheeters, 73 Ind. 577; Lehman v.
Hawks, 121 Ind. 541.
27 See Hasbrouck v. City of Milwaukee, 21 Wis. 238 ; Grant t.
Connecticut Mut. Life Ins. Co., 29 Wis. 125; Millard v. Lyons, 25
Wis. 516; Seymour v. Colburn, 43 Wis. 67; State v. Glass, 50 Wis.
218; Moore v. City of Platteville, 78 Wis. 644. Oral statements as
to the form of the verdict, the manner in which the trial has been
conducted, the behavior of the jury or counsel or parties, are^
proper, as is "any other oral statement which is not fairly andi
strictly a direction or instruction upon some question or rule of lawi
involved in or applicable to the trial, or a comment upon the evi-
dence." State V. Potter, 15 Kan. 302.
(2T0)
Ch.l2] INSTRUCTING IN WRITING. §120
is an oral instruction, and therefore erroneous. Coppage v. Com.,
3 Bush (Ky.) 532. See, also, Cedar Rapids, I. F. & N. W. Ry. Co. v.
Cowan, 77 Iowa, 535, for remarKs as to the effect of a stipulation
held to constitute harmless error. A remark made by the court in
the hearing of the jury has the same effect as if given as a formal
instruction. People v. Bonds, 1 Nev. 33.
-Statement that thepry is not tenaMe.
The following statement has been held to be an Instruction,
within the rule requiring instructions to be written, viz.: "This
idea of an accident, which has been urged by the defense, amounts
to nothing, and Is not tenable. There is no evidence to show It
was an accident. On the contrary, it shows there was a scuffle, and
that the defendant persisted in holding on to the pistol." People v.
Bonds, 1 Nev. 31.
Dir&ction to try case an the evidence.
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 testi-
mony, and to disregard their personal knowledge, is an Instruction,
and must be in writing. Equitable Fire Ins. Co. v. Trustees of
Postervllle C. P. Church, 91 Tenn. 135.
As to duty to acquit upon reasonable douit.
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; Smurr v. State, 88
Ind. 504.
Recapitulating testimony.
"When the court has. been requested to give the instructions to
the jury in writing, it is erroneous to recapitulate the substance of
the testimony verbally, notwithstanding the court states that the
jury should not take its statements." McClay v. State, 1 Carter
(Ind.) 385.
Statement as to duty of jury to agree upon verdict.
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,
Direction as to mode of arriving at verdict.
"It is a violation of our statute for the court to instruct the jury
orally as to the impropriety of certain modes of arriving at the
amount of a verdict." Illinois Cent. R. Co. v. Hammer, 85 111. 526.
(271)
120 INSTRUCTIONS TO JURIES. [Ch. 12
Statement as to right of jury to disbelieve evidence.
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.
Reading statute to jury.
Reading a statute to the jury constitutes an instruction. Bottorft
T. Shelton, 79 Ind. 98. And see full collection of cases infra, § 121,
"SuflSciency of Compliance with Statute."
Remarks held not to constitute instructions — As to form of verdict.
An oral direction by the court to the jury as to the form of their
verdict is not an instruction, and need not be in writing. People
T. Bonney, 19 Cal. 427; Illinois Cent. R. Co. v. Wheeler, 149 111. 525;
Stanley v. Sutherland, 54 Ind. 339; Bradway v. Waddell, 95 Ind.
170; McCallister v. Mount, 73 Ind. 559; Lehman v. Hawks, 121 Ind.
541; State v. Potter, 15 Kan. 302. Contra, Helm v. People, 186 111.
153.
The jury may be told orally that they must find one of three
verdicts, the forms of which are submitted to them. State v. Glass,
50 Wis. 219. A direction to sign the general verdict is not an in-
struction. McCallister v. Mount, 73 Ind. 559. A statement that, if
the verdict is for the plaintiff, it should be for the amount claimed,
and, if for the defendant, it should simply be for the defendant,
need not be in writing. Jenkins & Reynolds Co. v. Lundgren, 85
111. App. 494. 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 applied to the case. Leh-
man V. Hawks, 121 Ind. 541; Bradway v. Waddell, 95 Ind. 170;
State V. Potter, 15 Kan. 302. 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. Johnson v. Rider, 84
Iowa, 50.
Direction to find a verdict.
Directing a jury to find a verdict is not an instruction, and need
not be in writing. Stone v. Chicago & N. W. R. Co., 47 Iowa, 82.
As to agreement upon a verdict.
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
(272)
Ch. 12] INSTRUCTING IN WRITING. § 120
of law involved in the trial, or make any comment upon the tes-
timony. State V. McLafEerty, 47 Kan. 140.
As to importance of agreeing upon verdict
An oral admonition as to the importance of finding a. verdict is
not an instruction, within the rule. Strepey v. Stark, 7 Colo. 614;
Moore v. City of Platteville, 78 Wis. 644. See. also. State v. Jones,
7 Nev. 408.
Direction to retire for further consideration of verdict.
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.
Directing verdict.
According to some decisions, a direction to the jury to find a ver-
dict for one party, when such direction is proper, is not an instruc-
tion, and need not be in writing. Milne v. Walker, 59 Iowa, 186;
Young V. Burlington Wire Mattress Co., 79 Iowa, 415; Leggett &
Myer Tobacco Co. v. Collier, 89 Iowa, 144; Stone v. Chicago & N.
W. R. Co., 47 Iowa, 82; Grant v. Connecticut Mut. Life Ins. Co., 29
Wis. 125. According to other decisions, it is an instruction, within
the rule. Greenwich Ins. Co. v. Raab, I'' '11. App. 636.
Direction to answer interrogatories.
An oral statement by the judge to the Jury, directing them to an-
swer certain interrogatories, is not an instruction, within the mean-
ing of the law, and there is.no error in making it after a request to
instruct in writing. Trentman v. Wiley, 85 Ind. 33; Judge v. Jor-
dan, 81 Iowa, 519; McCallister v. Mount, 73 Ind. 559.
Statement as to duty of jurors.
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, 35 Tex. Cr. App. 325. The court may
verbally impress upon the jury the importance of agreeing upon a
verdict, point out 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. jCity of Platteville, 78 Wis.
644; cf. Equitable Fire Ins. Co. v. Trustees C. P. Church, 91 Tenn.
135.
As to conduct of jurors.
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
(273),
• 18 — Ins. to Juries.
55 120 INSTRUCTIONS TO JURIES [Ch. 12'
from talking among themselves or with others, to sign their gen-
eral verdict, or to answer interrogatories, are not instructions,
within the meaning of the statute reauiring the court to instruct
the jury in writing when so requested Dy a party. McCallister v.
Mount, 73 Ipd. 559, 567; Trentman v. Wiley, 85 Ind. 33; Lehman v.i
Hawks, 121 Ind. 541. An oral statement to the jury that it would'
he improper for them to examine the scene of the accident except
by agreement of counsel, and in charge of an ofiacer, and that theyi
must keep away, in the absence of such agreement, is not error.i
Pioneer Fireproof Const. Co. v. Sunderland, 188 111. 341.
Remarks on voir dire as to qualifications of jurors.
Explanatory remarks to the jury, on their voir dire examination,]
as to what facts will or will not disqualify them, do not violate thei
statutory prohibition against oral instructions. Oberbeck v. Mayer,;
59 Mo. App. 289.
■ Remarks not addressed to jury.
Where a stipulation in another case was introduced in evidencei
during the progress of a trial, and the court said, in the presence
of the jury, "I shall hold that by that stipulation defendants ac4
knowledge that there was twelve hundred dollars and interest duq
the said railroad company that has not been paid," it was held that.l
as the remark was not addressed to the jury, and as there was no|
conflict in the evidence as to the fact that the amount named was
in fact due the railroad company, and the question of indebtedness'
was fairly submitted to the jury, no prejudice could have resultedl
from the remark. Cedar Rapids, I. F. & N. W. Ry. Co. v. Cowanj
77 Iowa, 535. A remark of ihe court, not designed as an- in-j
structlon to the jury, nor addressed to them, nor of a nature to be
considered while they were deliberating upon their verdict, will not
be presumed to have influenced their verdict. Cormac v. Western
White Bronze Cp., 77 Iowa, 32.
■ Remarks leading up to charge.
It was held in People v. Cox, 76 Cal. 281, that, although 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 abso-
lute 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.
As to admissiiility of evidence.
"A casual remark by the presiding judge to coumel, pending the
discussion of a legal question, as to the admissibility of evidence,
(274)
Ch. 12] INSTRUCTING IN WRITING. § 120
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 not in-
tended for the jury, and It does not appear to have influenced their
verdlcti" Meinaka v. State, 55 Ala. 47.
The court may give its opinion orally of the law governing the
admissibility of testimony in the presence of the jury, and although
all instructions were requested to be in writing. Fruchey v. Eagle-
son, 15 Ind. App. 88. See, also, McCormick v. Ketchum, 48 Wis. 643.
Statement of purpose of evidence.
The court may state orally the purpose for which evidence was
introduced. Green v. Com., 17 Ky. Law Rep. 943, 33 S. W. 100;
Farmer v. Thrift, 94 Iowa, 374. Explanations or statements made
by the court, during the trial, to the jury, in order that they may
understand the purpose and condition on which the evidence Is ad-
mitted, are not "instructions" which, on request, should be in writ-
ing. Stanley v. Sutherland, 54 Ind. 339. An oral statement by the
judge during the trial, limiting the application of the evidence, and
stating the grounds and purposes for which it is admissible, is not
reversible error. State v. Becton, 7 Baxt. (Tenn.) 139.
Recapitulation of evidence.
The recapitulation of the evidence need not be in writing. Jen-
kins V. Wilmington & W. R. Co., 110 N. C. 442; Dupree v. Virginia
Home Ins. Co., 92 N. C. 417.
Repeating admissions made ty party.
Where, in an action for personal injuries, the defendants, at the
close of the trial, admit that the premises where the accident occurs
was owned and controlled by them, and the court merely repeats,
in the hearing of the jury and of the counsel on both sides, so that
the jury can understand what it is, the statute prohibiting oral in-
structions is not violated. Hinckley v. Horazdowsky (111.) 28 N. B.
338.
Withdrawing evidence.
"Oral directions to the jury to reject evidence * * • are not
'instructions.'" Bradway v. Waddell, 95 Ind. 170; Stanley v. Suth-
erland, 54 Ind. 339; Lawler v. McPheeters, 73 Ind. 579; State v.
Good, 132 Mo. 114; Madden v. State, 148 Ind. 183.
Withdrawing instructions.
In reading the instructions to the jury, the judge read one by
mistake which he had marked "Refused." He then said to the jury
orally that he had read the instruction by mistake, and they should
not consider it. Counsel insist that the court erred in making this
statement orally. The statement made by the court did not bear
(275),
^ 120 INSTRUCTIONS TO JURIES. [Ch. 1
upon any question of law or fact Involved in the issue, and should
not be taken or treated as a part of the instruction. Ohio & M. Ry.
Co. V. Stansberry, 132 Ind. 533; Bradway v. Waddell, 95 Ind. 170;
McCallister v. Mount, 73 Ind. 559; Wall v. State, 10 Ind. App. 530,
38 N. B. 190; Edwards v. Smith, 63 Mo. 119.
Repeating written instructions orally.
Where the court, having complied with a request to give its in-
structions in writing, repeats a portion thereof orally, and no ex-
ception is taken to such repetition, it cannot be objected to in the
supreme court. Howard v. State, 73 Ind. 528.
Stating at whose request instructions are given.
It is not reversible error, no harm being shown, for the court to
state orally to the jury that "defendant's counsel have asked me
to give the following instructions." Sample v. State, 104 Ind. 289.
See, also, Dodd v. Moore, 91 Ind. 522; Scott v. Chicago, M. & St. P,
R. Co., 68 Iowa, 360.
Remarks as to right of court to instruct,
A statute requiring a charge "to be in writing is not violated by
the judge. telling the jury that he could not instruct them as to
matters of fact." State v. Waterman, 1 Nev. 543.
Reply to exception to charge.
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. Malachl v. State, 89 Ala. 134,
8 So. 104.
Answering questions of jury.
"Where, after having received full written instructions, the jury
returned into court, and, in the absence of the official reporter,
orally asked the court whether, if the defendant 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 court
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. 487.
Answering irrelevant questions.
Where the jury returned and inquired what was the least punish-
ment for the oHense charged, and the court replied orally that the
jury had nothing to do with that matter, but informed them of the
(276)
Ch. 12] INSTRUCTING IN WRITING. § 120
penalty, It was held that such remarks were immaterial, and not
erroneous for not heing in writing. People v. Jackson, 57 Cal. 316.
'Answering question ty simple afflrmance or denial.
"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 question of the juror is the full
statement of the rule, and the answer is no more than an affirma-
tion or denial, such affirmation or denial need not be reduced to
writing before it is given." State v. Potter, 15 Kan. 302.
Refusal to answer questions of jury.
Where the jury send questions to the judge, who, in reply, states
that such questions have nothing to do with the case under the evi-
dence and instructions given, such reply is not an instruction, but
rather a refusal to instruct, and need not be in writing. Sullivan v.
Collins, 18 Iowa, 228. So, the court may tell the jury orally that
questions asked by them are irrelevant. Seymour v. Colburn, 43
Wis. 71.
Comments on conduct of trial.
"The court may properly make oral statements to the jury in
reference to * • * the manner in which the trial has been con-
ducted, the behavior of the jury, or counsel, or parties, or any other
oral statement which is not fairly and strictly a direction or In-
struction upon some question or rule of law involved in or appli-
cable to the trial, or a comment upon the evidence." State v. Pot-
ter, 15 Kan. 302.
Apologies for impatience at length of trial.
The following oral remarks were held not erroneous: "Before
reading the instructions to you, I desire to say that the trial has
been a long and tedious one, occupying one day longer in taking
the evidence than any case which has been tried in this circuit
for seven years. During the long and fatiguing trial, the court
may have become impatient at the delay of the counsel, and mad«
remarks that may possibly have influenced some juror. I wish it
especially understood that nothing I have said was intended to
influence unduly the verdict of the jury, and I do not wish any
juror to be influenced by it in the least." Hasbrouck v. City of
Milwaukee, 21 Wis. 227.
Directions of counsel as to scope of arguments.
The court may orally direct counsel to confine their arguments
to the points of law which it deems controlling, and may state what
(277)
g ]^21 INSTRUCTIONS TO JURIES. [Ch. 12
tliose points are. Such directions are not Instructions. O'Hara v.
King, 52 111. 304.
§ 121. Sufficiency of compliance with statute.
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.^® "Char-
ges in writing should be given literally as they are written."*'
An instruction that the defendant is on trial on the "follow-
ing indictment," and which says that the defendant has en-
tered a plea of not guilty to such indictment, but which does
not actually include the indictment, does not comply with the
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;^^ but "it is error to »
Conway, 7 Ind. 187; Riley v. Watson, 18 Ind. 291; Feriter v. State;
33 Ind. 283; Sutherland v. Venard, 34 Ind. 390; Gray v. Stivers, 38
Ind. 197; Hardin v. Helton, 50 Ind. 319; Watts v. Coxen, 52 Ind.
155; Bosworth v. Barker, 65 Ind. 596; Davis v. Foster, 68 Ind. 238;
State V. Bennington, 44 Kan. 583; Householder v. Granby, 40 Ohio
St. 430; Manier v. State, 6 Baxt. (Tenn.) 595. See, also, infra, §
123, "Oral Explanations, Modifications, and Additions." "The judge
having refused to give instructions asked for by the defendant, and
having given oral instructions, subsequently, and before 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 statute, requiring charges in cases of this character to be wholly
in writing." Southern Exp. Co. v. Van Meter, 17 Fla. 783.
28 Wheatley v. West, 61 Ga. 401 ; Rising-Sun & V. Turnpike Co. v.
20 Morrison v. State (Fla.) 28 So. 97.
80 State V. Birmingham, 74 Iowa, 407.
31 Ohio & M. R. Co. V. Sauer, 4 Ohio Cir. Ct. R. 466, wherein the
court read part prepared by himself, and part from a copy of a
former charge of d,nother judge at a former trial. It was held that
error in not putting the charge in such shape that the jury could
(278)
Ch. 12] INSTRUCTING IN WRJTING. § 122
give an instruction, not reduced to writing, otherwise than by
reference to a certain page of a law magazine. "^^ It is suf-
ficient for the judge to dictate an instruction, and for the at-
torney to reduce it to writing. It is not necessary for the
judge to do it with his own hand.*^ A charge written in Eng-
lish, and orally translated for the jury into Spanish, which
was their language, is a charge "in writing," within the
meaning of the statute,^,* as is also a printed charge,^ ^ or a
charge written in lead pencil.^®
§ 122. Same — Oral explanations, modifications, and additions.
Under statutes requiring instructions to be in writing, it
is error, after written instructions have been given, to make
oral explanations or additions, or to orally modify or illtis-
trate the principles of law laid down.^^ The error is not
cured by a direction from the court to the jury to consider
take it with them was waived by consent of counsel that it need
not go into the jury room.
32 Hopt v. People, 104 U. S. 631. ,
saBarkman v. State, 13 Ark. 706; Pleasant v. State, 13 Ark. 360.
34 Territory v. Romine, 2 N. M. 114.
35 State V. Kelly, 73 Mo. 608; State v. Stewart, 9 Nev. 120; State
V. Fooks, 65 Iowa, 196.
30 Harvey v. Tama County, 53 Iowa, 228.
3T City Bank of Macon v. Kent, 57 Ga. 283 ; Willis v. State, 89 Ga.
188; Ray v. Wooters, 19 111. 82; Ellis v. People, 159 111. 337; Ken-
worthy V. Williams, 5 Ind. 375; Townsend v. Doe, 8 Blackf. (Ind.)
328; Lung v. Deal, 16 Ind. 349; Laselle v. Wells, 17 Ind. 33; Toledo
& W. Ry. Co. V. Daniels, 21 Ind. 256; Meredith v. Crawford, 34 Ind.
399; Bosworth v. Barker, 65 Ind. 595; Provines v. Heaston, 67 Ind.
482; Hauss v. Niblack, 80 Ind. 407; Stephenson v. State, 110 Ind.
358; Parris v. State, 2 G. Greene (Iowa) 449; State v. Harding, 81
Iowa, 599; Bird & M. Map Co. v. Jones, 27 Kan. 177; Payne v.
Com., 1 Mete. (Ky.) 378; Hartwig v. Gordon, 37 Neb. 657; House-
holder v. Granby, 40 Ohio St. 430; McMahon v. State, 1 Tex. App.
102; Rupp V. Shaffer, 21 Ohio Cir. Ct R. 643, 12 Ohio CIr. Dec. 154.
(2^9)
§ 123 INSTRUCTIONS TO JURIES. [Ch. 12
the oral explanations and illustrations witlidrawn,** nor by
subsequently, after the jury has retired, reducing such verbal
explanations in writing f^ but the error is cured by recalling
the jury, adding the remark in writing to the charge, and
then reading it to the jury.*" It has been held that such oral
additions to written instructions constitute reversible error,
even though such additions are immaterial,*^ but this is at
least doubtful; and where the record discloses that oral ex-
planations were- made, and states at length what was said,
and it appears that it could not and did not modify the ef-
fect of any written charge, it has been held not to be reversible
error.*^ Wherever the statute applies at all, it applies equal-
"A judge on the trial of a cause has no authority to afCect or change
the law, as stated in written instructions, by any statement not in
writing. It is error for the court to instruct the jury orally, or to
orally explain or modify an instruction." Bradway v. Waddell, 95
Ind. 174. To be available error, it must expressly appear by the
bill of exceptions. Hauss v. Niblack, 80 Ind. 407, 416. The error
is waived by failure to save an exception. Louisville & N. R. Co.
V. Hall, 91 Ala. 112. 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 necessary for the case, when in fact it
did not, is error. McEwen v. Morey, 60 111. 32. In some states, the
statute expressly says that, after the instructions are given, the
court shall not "orally qualify, modify, or in any manner explain
the same to the jury."
as Laselle v. Wells, 17 Ind. 33.
89 Payne v. Com., 1 Mete. (Ky.)'378. See, also, infra, § 124, "Sub-
sequent Reduction of Oral Charge to Writing."
io Powers v. Hazelton & L. Ry. Co., 33 Ohio St. 429.
■,
(300)
Ch. 13] REQUESTS FOR INSTRUCTIONS. g 130
92 N. C. 417; Branton v. O'Briant, 93 N. C. 99; Tayloe v. Old
Dominion Steamship Co., 88 N. C. 15; Burton v. Wilmington & W.
R. Co., 82 N. C. 504; Thornburgh v. Mastin, 93 N. C. 258; Morgan
V. Lewis, 95 N. C. 296; King v. Blackwell, 96 N. C. 322; Hall v.
Castleherry, 101 N. C. 153, 7 S. E. 706; Thompson v. Western Union
Telegraph Co., 107 N. C. 449; State v. Jackson, 112 N. C. 850;
State v. Varner, 115 N. C. 744, 20 S. E. 518; Gwaltney v. Scottish
Carolina T. & L. Co., 115 N. C. 579, 20 S. E. 465; Kendriok v. Bell-
inger, 117 N. C. 491, 23 S. E. 438; State v. Dehnam. 98 N. C. 712;
State V. Bailey, 100 N. C. 528; Taft v. Wildman, 15 Ohio, 123; Jones
V. State, 20 Ohio, 46; Smith v. Pittsburg, Ft. W. & C. Ry. Co., 23
Ohio St. 10; Doll v. State, 45 Ohio St. 445; Rolling Mill Co. v. Cor-
rigan, 46 Ohio St, 283; Meyer v. State,, 1 Ohio N. P. 241, 2 Ohio
Deo. 233; Myer v. State, 3 Ohio Dec. 198; Schoellhamer v. Rometsch,
26 Or. 394; Levers v. Van Buskirk, 4 Pa. 309; Seigle v. Louder-
baugh, 5 Pk. 490; Dennis v. Alexander, 3 Pa. 50; Fisher v. Filbert,
6 Pa. 61; Crall v. Crail, 6 Pa. 480; Burns v. Sutherland, 7 Pa. 103;
Klein v. Franklin Ins. Co., 13 Pa. 247; HolUday v. Rheem, 18' Pa.
465; Mulvany v. Rosenberger, 18 Pa. 203; Wertz v. May, 21 Pa. 274;
Huber V. Wilson, 23 Pa. 178; Raush v. Miller, 24 Pa. 277; Storch
V. Carr, 28 Pa. 135; Weamer v. Juart, 29 Pa. 257; Reeves v. Dela-
ware, L. & W. R. Co., 30 Pa: 454; Newman v. Edwards, 34 Pa.
32; Deen v. Herrold, 37 Pa. 150; Bain v. Doran, 54 Pa. 124; Walker
V. Humbert, 55 Pa. 407; Davis v. Bigler, 62 Pa. 242; Cooper v. Al-
timus, 62 Pa. 486; Philadelphia & Reading R. Co. v. Getz, 113
Pa. 214; Thomas v. Loose, 114 Pa. 35; Stuckslager v. Neel, 123
Pa. 53; Serf ass v. Dreisbach, 141 Pa. 142; Com. v. Zappe, 153 Pa.
498; Brinser v. Longeneoker, 169 Pa. 51, 32 Atl. 60; Paterson v.
Blaisdell, 169 Pa. 636; Curtin v. Gephart, 175 Pa. 417, 34 Atl. 790;
Fox V. Fox, 96 Pa. 60; Lilly v. Paschal's Bx'rs, 2 Serg. & R. (Pa.)
394; Poorman v. Smith's Ex'rs, 2 Serg. & R. (Pa.) 464; Kean v.
McLaughlin, 2 Serg, & R. (Pa.) 469; Carothers v. Dunning's Les-
see, 3 Serg. & R. (Pa.) 373; Fisher v. Larick, 7 Serg. & R. (Pa.)
99; Morris v. Travis, 7 Serg. & R. (Pa.) 220; Munderbach v. Lutz's
Adm'r, 14 Serg. & R. (P,a.) 220; Rahn v. McElrath, 6 Watts (Pa.)
151; Brittain v. Doylestown Bank, 5 Watts & S. (Pa.) 87; Arthurs
V. Bascom, 28 Leg. Int. (Pa.) 284; Neely v. Merrick, 7 Phila. (Pa.)
170; Mershon v. Hood, 2 Pittsb. R. (Pa.) 207; Dawson v. Robinson,
3 Wkly. Notes Cas. (Pa.) 449; Menges v. Muncy Creek Township,
1 Penny. (Pa.) 179; Sayer v. Schroeder, 2 Penny. (Pa.) 79; Gowen
V. Glaser, 3 Cent. Rep. (Pa.) 109; Beaver v. Sandham, 3 Del. (Pa.)
163; Payne v. Noon (Pa.) 8 Atl. 428; McMeen v. Com., 114 Pa.
300; Kurtz v. Haines (Pa.) 15 Atl. 716; Madsden v. Phoenix Fire
Ins. Co., 1 Rich. (S. C.) 24; Abrahams v. Kelly, 2 Rich. (S. C.)
(301),
§ 130 INSTRUCTIONS TO JURIES. [('h. 13
237; Congdon v. Morgan, 13 S. C. 190: Sullivan v. Jones, 14 S. C.
365; Ancrum v. Wehmann, 15 S. C. 122; Fox v. Savannah & C. R.
Co., 4 Rich. (S. C.) 543; State v. Dodson, 16 S. C. 463; Carter v.
Columbia & G. R. Co., 19 S. C. 2S; Jordan v. Lang, 22 S. C. 164;
Hume V. Providence Washington Ins. Co., 23 S. C. 199; State v.
Anderson, 24 S. C. 113; Asbill v. Asbill, 24 S. C. 360; Du Rant
V. Du Rant, 36 S. C. 49, 14 S. K. 929; State v. Davenport, 38 S.
C. 348; Dial v. Agnew, 28 S. C. 454; Prick & Co. v. Wilson, 36
g. C. 65; State v. Meyers, 40 S. C. 555; State v. Robinson, 40 S. C.
553; Brown v. Foster, 41 S. C. 118; Caveny v. Neely, 43 S. C. 70;
State V. Sullivan, 43 S. C. 205; Hammett v. Brown, 44 S. C. 397;
Lagrone v. Timmerman, 46 S. C. 372; Jones v. Spartanburg Herald
Co., 44 S. C. 526, 22 S. B. 731; State v. Smith, 10 Rich. Law (S.
C.) 341; Bridges v. Vick, 2 Humph. (Tenn.) 516; Mann v. Grove,
4 Heisk. (Tenn.) 405; Butler v. State, 7 Baxt. (Tenn.) 35; Louis-
ville & N. R. Co. V. Wynn. 88 Tenn. 320, 14 S. W. 311; Maxwell
V. Hill, 89 Tenn. 584; Dewees v. Hudgeons, 1 Tex. 192; Robinson
V. Varnell, 16 Tex. 382; O'Connell v. State, 18 Tex. 343; Linn v.
Wright, 18 Tex. 317; Farquhar v. Dallas, 20 Tex. 200; Thompson
V. Payne, 21 Tex. 621; Farris v. Bennett's Ex'rs, 26 Tex. 568; Berry
v. Donley, 26 Tex. 737; Peeler v. Guilkey, 27 Tex. 355; Metzger
V. Wendler, 35 Tex. 367; Greenwood v. State, 35 Tex. 587; Jenkins
V. State, 36 Tex. 638; Texas & P. R. Co. v. Casey, 52 Tex. 112;
Beazley v. Denson, 40 Tex. 434; Ford v. McBryde, 45 Tex. 499;
Van Alstyne v. Houston & T. C. Ry. Co., 56 Tex. 373; San Antonio
St. Ry. Co. V. Helm, 64 Tex. 147; International & G. N. Ry. Co. v. Leak,
64 Tex. 654; Cockrill v. Cox, 65 Tex. 669; Liverpool & L. & G. Ins.
Co. V. Ende, 65 Tex. 118; Chalk v. Foster, 2 Posey, Unrep. Cas. (Tex.)
704; Smyth v. Caswell, 67 Tex. 567; O'Neil v. Wills Point Bank,
67 Tex. 36; Texas & P. Ry. Co. v. Beard, 68 Tex. 265; Tucker v.
Smith, 68 Tex. 473; Half v. Curtis, 68 Tex. 640; Currie v. Gunter,
77 Tex. 490; Texas & P. Ry. Co. v. Brown, 78 Tex. 397; Milmo v.
Adams, 79 Tex. 526; Hacker v. Day, 80 Tex. 529; McKinney v.
Nunn, 82 Tex. 44; Stephens v. Motl, 82 Tex. 81; Mayer v. Walker.
82 Tex. 222; Wilkinson v. Johnson, 83 Tex. 392; Witt v. Repey,
2 Posey, Unrep. Cas. (Tex.) 654; Gulf, C. & S. F. Ry. Co. v. Jones,
1 Tex. Civ. App. 372; Galveston, H. & S. A. Ry. Co. v. Daniels, 1
Tex. Civ. App. 695; Bowden v. Crow, 2 Tex. Civ. App. 591; Hays
V. Hays, 66 Tex. 606, 1 S. W. 895; International & G. N. R. Co. v.
Smith (Tex.) 1 S. W. 565; Sanger v. Craddock (Tex.) 2 S. W.
196; Pitkins v. Johnson (Tex.) 2 S. W. 459; Smith v. Capwell
(Tex.) 4 S. W. 848; Reed v. Hardeman (Tex.) 5 S. W. 505; Mayer
v. Duke, 72 Tex. 445; Trinity & S. Ry. Co. v. Schofield, 72 Tex.
496; Neyland v. Bendy, 69 Tex. 711; Beeks v. Odom, 70 Tex. 183;
(302)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 130
Odom V. Woodward, 74 Tex. 41; Adams v. CrensKaw, 74 Tex. Ill;
Silberberg v. Pearson, 75 Tex. 287, 12 S. W. 850; Railway v. Kel!
(Tex. App.) 16 S. W. 936; Milburn Wagon Co. v. Kennedy, 75
Tex. 212, 13 S. W. 28; Myer v. Pruin (Tex.) 16 S. W. 868; Gulf,
C. & S. P. Ry. Co. V. Box, 81 Tex. 670, 17 S. W. 375; Bluefields
Banana Co. v. Wollfe (Tex. Civ. App.) 22 S. W. 269; McLane v. Elder
(Tex. Civ. App.) 23 S. W. 757; Richardson v. Jankotsky (Tex. Civ.
App.) 23 S. W. 815; Blum v. Jones (Tex. Civ. App.) 23 S. W. 844;
Missouri, K. & T. Ry. Co. v. KirschofEer (Tex. Civ. App.) 24 S. W.
577; Receivers of Missouri, K. & T. Ry. Co. v. Pfluger (Tex. Civ.
App.) 25 S. W. 792; Galveston, H. & S. A. Ry. Co. v. McMonigal
(Tex. Civ. App.) 25 S. W. 341; Templeton v. Green (Tex. Civ. App.)
25 S. W. 1073; Galveston, H. & S. A. Ry. Co. v. Edmunds (Tex.
Civ. App.) 26 S. W. 633; Missouri Pac. Ry. Co. v. Peay (Tex. Civ.
App.) 26 S. W. 768; Hargadine v. Davis (Tex. Civ. App.) 26 S.
W. 424; Willis v. Lockett (Tex. Civ. App.) 26 S. W. 419; Johnson
V. White (Tex. Civ. App.) 27 S. W. 174; Mills v. Haas (Tex. Civ.
App.) 27 S. W. 263; Gulf, C. & S. P. Ry. Co. v. Moody (Tex. Civ,
App.) 30 S. W. 574; Gulf, C. & S. P. Ry. Co. v. Perry (Tex. Civ.
App.) 30 S. W. 709; Reichstetter v. Bostick (Tex. Civ. App.) 33
S. W. 158; City of Waxahachie v. Connor (Tex. Civ. App.) 35 S.
W. 692; Decatur Cotton Seed Oil Mill Co. v. Johnson (Tex. Civ.
App.) 35 S. W. 951; Stephens v. Anderson (Tex. Civ. App.) 36
S. W. 1000; Walker v. Wait, 50 Vt. 668; State v. Hanlon, 62 Vt.
334; Crawford v. Morris,, 5 Grat. (Va.) 90; McQuillan v. City of
Seattle, 13 Wash. 600; State v. Robinson, 20 W. Va. 714; State v.
Donohoo, 22 W. Va. 761; Lachner v. Salomon, 9 Wis. 129; Chap-
pell V. Cady, 10 Wis. Ill; Brewer v. Merrill, 3 Pin. (Wis.) 46;
Karber v. Nellis, 22 Wis. 215; Weisenberg v. City of Appleton, 26
Wis. 56; Roebke v. Andrews, 26 Wis. 311; Lela v. Domaske, 48
Wis. 623; Knoll v. State, 55 Wis. 249; Clifford v. State, 58 Wis.
477; Austin v. Moe, 68 Wis. 458; Sullivan v. State, 75 Wis. 650;
Winn V. State, 82 Wis. 571; Porath v. State, 90 Wis. 537; Schaefer
V. Osterbrink, 67 Wis. 495; Stennett v. Bradley, 70 Wis. 278; Lueck
V. Heisler, 87 Wis. 644; Bunce v. McMahon, 6 Wyo. 24; Armstrong
V. Toler, 11 Wheat. (U. S.) 258, 6 L. Ed. 468; Pennock v. Dialogue,
2 Pet. (U. S.) 1, 7 L. Ed. 327; United States Express Co. v. Kountze,
8 Wall. (U. S.) 342, 19 L. Ed. 457; Butler, v. Maples, 9 Wall. (U.
S.) 766; Shutte v. Thompson, 15 Wall. (U. S.) 151, 21 L. Ed. 123;
Hall V. Weare, 92 U. S. 728; Mutual Life Ins. Co. v. Snyder, 93
U. S. 393, 23 L. Ed. 887; Congress & E. Spring Co. v. Edgar, 99
U. S. 645, 25 L. Ed. 487; Carter v. Carusi, 112 U. S. 478.
Indefinite and uncertain instructions.
The fact that the instructions given are general, indefinite, vague,
(303)
g 130 ' INSTRUCTIONS TO JURIES. [Ch. 13
or uncertain is not ground for reversal, in the absence of a request
for proper instructions. People v. Olsen, 80 Cal. 122, 22 Pac. 125;
Hallock V. Iglehart, 30 Xnd. 327; Bicliel v. Senhenn, 2 Ind. App.
208; Gastlin v. Weeks, 2 Ind. App. 222; Morningstar v. Hardwick,
3 Ind. App. 431; State v. Jelinek, 95 Iowa, 420; State v. Falk, 46
Kan. 500; Clapp v. Minneapolis & St. L. Ry. Co., 36 Minn. 6, 29
N. W. 340; Warner v. Myrlck, 16 Minn. 91; Sioux City, etc., R.
Co. V. Brown, 13 Neb. 317; Rousel v. Stanger, 73 Tex. 670, 11
S. W. 906; L,ela v. Domaske, 48 Wis. 623; Page v. Town of Sump-
ter, 53 Wis. 652.
Ambiguous instrucnons.
A merely ambiguous instruction Is not ground for reversal, in
the absence of a request for proper instructions correcting the de-
fect. Sharp V. Burns, 35 Ala. 663; Stratton v. Staples. 59 Me. 94;
McCormick v. Louden, 64 Minn. 509; Boyle v. Louden, 64 Minn. 509;
Kearney v, Snodgrass, 12 Or. 317; Schoellbamer v. Rometseh, 20
Or. 394; McQuillan v. City of Seattle, 13 Wash. 600, 43 Pac. 893;
Box v. Kelso, 5 Wash. 360; Schuylkill & Dauphin Imp. & R. Co.
v. Munson, 14 Wall. (U. S.) 442. "Where a charge Is merely am-
biguous, a party dissatisfied with it ought, before the jury leave
the bar, to ask the court to make it clear. He should not acqui-
esce in the correctness of the Instruction, take his chance with a
jury, and, after the verdict is against him, claim the benefit of the
ambiguity on error." Schuylkill & Dauphin Imp. & R. Co. v. Mun-
son, 14 Wall. (U. S.) 442.
Obscure instructions.
The mere fact that an instruction is obscure is not ground for
reversal. The paTty complaining must ask an explanatory or qual-
ifying charge. State v. Brinyea, 5 Ala. 241; Jones v. Port, 36 Ala.
449; PuUiam v. Newberry's Adm'r, 41 Ala. 168; Johnson v. State,
14 Ga. 55; Stockwell v. Byrne, 22 Ind. 6; Fife v. Commonwealth.
29 Pa. 429.
■Misleading instructions.
The mere fact that the charge, though correct, might mislead the
jury, or has a tendency to mislead, is not reversible error, in the
absence of a request for a proper instruction. Casky v. Havila^nd,
13 Ala. 321; Hodges v. Branch Bank at Montgomery, 13 Ala. 455;
Kenan v. Holloway, 16 Ala. 53; Ewing v. Sanford, 19 Ala. 605;
Fitzpatrick v. Hays, 36 Ala. 684; Hughes v. Hughes' Ex'r, 31 Ala.
519;. Abraham v. Nunn, 42 Ala. 57; Durrett v. State, 62 Ala. 434;
Towns V. State, 111 Ala. 1; Jones v. State, 49 Ind. 549; Deere v.
Wolf, 77 Iowa, 115; Gwinn v. Crawford, 42 Iowa, 63; Churchill v.
Gronewig, 81 Iowa, 449; Milne v. Pontchartrair R. Co., 9 La.
(304)
Gh. 13] REQUESTS FOR INSTRUCTIONS. § 130
257; Hyde v. St. Louis Book & News Co., 32 Mo. App. 298. But
where the almost necessary effect of the charge is to mislead the
jury, or where the result shows that the jury were probably mis-
led, it seems that the judgment should be reversed. Toulmin V.
Lesesne, 2 Ala. 359; Towns v. Riddle. 2 Ala. 694; Kenan v. Hollo-
way, 16 Ala. 53; Towns v. State, 111 Ala. I; Peirson v. Duncan. 162
Pa. 187, 29 Atl. 733; International & G. N. Ry. Co. v. Philips, 63
Tex. 590. In many cases, the general rule that a request is neces-
sary is stated with the proviso that the instructions given were
not misleading. Hill v. Newman, 47 Ind. 187; Jones v. State, 49
Ind. 549; DriscoU v. People, 47 Mich. 413; Schryver v. Hawkes. 22
Ohio St. 308; Ott v. Oyer's Ex'x, 106 Pa. 7. "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." Hyde v. ,St. Louis Book & News Co., 32 Mo.
App. 298. If the counsel was apprehensive that the Jury would
understand the court as saying that probable cause was a question
of fact, and not of law, he should have required the instruction to
be made more definite, by calling on the court to pass upon- such
proposition more definitely. Wyman v. Hart, 12 How. Pr. (N. Y.)
122; Winchell v. Hicks, 18 N, Y. 558; Law v. Merrills, 6 Wend.
(N. Y.) 268; Haupt v. Pohlmann, 1 Rob. (N. Y.) 126. A charge
to the jury, asserting that an equal distribution of the testator's
property among his children "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' Bx'r, 31 Ala. 519.
Exceptions, qualifications, and limitations.
Where the instructions given are abstractly correct, but it is
claimed that in the particular case there are exceptions, qualifica-
tions, or limitations to the general rule laid down, which should
be given, a failure to state such exceptions, qualifications, or lim-
itations is not error, in the absence of a request to do so. Ivey's
Adm'r v. Owens, 28 Ala. 648; Bartlett v. Board of Education of
Freeport School Dist., 59 111. 364; Reissner v. Oxley, 80 Ind. 580;
State V. Tweedy, 11 Iowa, 350; Gwinn v. Crawford, 42 Iowa, 67;
Malone v. State, 77 Ga. 767; State v. Phinney, 42 Me. 384; Eaton
V. New England Telegraph Co., 68 Me. 63; McKnight v. Chicago,
M. & St. P. Ry. Co., 44 Minn. 141, 46 N. W. 294; Haymaker v.
Adams, 1 Mo. App. Rep'r, 409; People v. Moett, 58 How. Pr. (N. Y.)
467; Fasshender v. Western Transit Co., 26 N. Y. St. Rep. 112;
Texas & N. O. Ry. Co. v. Crowder, 70 Tex. 222; Gallagher v. Bowie,
66 Tex. 265. "If a party desires that the exceptions to a general
(305)
20 — Ins. to Juries.
§ 130 INSTRUCTIONS TO JURIES. [Ch. 13
rule of law be stated in an instruction to a jury, he should, ia
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 excepted
to, and no request for a further charge was made. Passhender v.
Western Transit Co., 26 N. Y. St. Rep. 112, 7 N. Y. Supp. 134.
The court charged as follows: "If the jury believe from the evi-
dence that M. was justly and honestly indebted to B. the sum for
which the judgment was rendered, * • * he had a right to
prefer B. by confessing said judgment." Held that, if appellants
desired that these instructions should be qualified by adding, "if
there are no distinctive badges of fraud to vitiate the transaction,"
they should have asked it. Stockwell t. Byrne, 22 Ind. 6.
Misapprehension of request.
If the court misapprehend the meaning of a point submitted to
counsel, it is his duty to call the judge's attention to it, otherwise
he will be concluded by the interpretation put upon it by the court
Booth V. Boston & A. R. Co., 73 N. Y. 38.
Overlooking requests.
Where a point on "which the court had been requested to charge
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 instructions, who both answered in the negative, 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 attention 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 an appellate court, as
error, even if some of such instructions ought to be given. Hud-
son V. Charleston, C. & C. R. Co. (C. C.) 55 Fed. 252.
Explanation of pleadings.
"An objection to an instruction to the jury that it fails to state
the difference between the various paragraphs of defendant's an-
swer is unavailable. An instruction covering the point should
have been asked." Conrad v. Kinzie, 105 Ind. 281.
(300)
Ch. 13] REQUESTS FOR INSTRUCIONS. § 130
Failure to submit an issue.
The failure to submit an issue made by the ple9,diiigs and evi-
dence will not be ground for reversal where no request was made
that such issue be submitted. Ronsheim v. Brimberry, 89 Ga. 97;
Barrett v. Delano (Me.) 14 Atl. 288; Copas v. Anglo-American Pro-
vision Co.^73 Mich. 541; McCarvel v. Phenix Ins. Co., 64 Minn. 193;
Barr v. City of Omaha, 42 Neb. 341, 60 N. W. 591; Carnes v. Piatt,
6 Rob. (N. Y.) 271; Briiaser v. Longenecker. 169 Pa. 51, 32 Atl.
60; Hume v. Providence Washington Ins. Co., 23 S. C. 199; Milmo v.
Adams, 79 Tex. 526; Wilkinson v. Johnson, 83 Tex. 392, 18 S. W.
746; Texas & P. Ry. Co. v. Gay, 86 Tex. 571, 26 S. W. 599; Missouri
Pac. Ry. Co. v. Peay, 7 Tex. Civ. App. 400, 26 S. W. 768; Blackwell
V. Hunnicutt, 69 Tex. 273; Myer v. Pruin (Tex.) 16 S. W. 868;
Bernheim v. Shannon (Tex. Civ. App.) 21 S. W- 386; Texas & P.
Ry. Co. V. Robinson, 4 Tex. Civ. App. 121, 23 S. W. 433; Mills
V. Haas (Tex. Civ. App.) 27 S. W. 263; Missouri, K. & T. Ry. Co. v.
Kirkland, 11 Tex. Civ. App. 528; Missouri, K. & T. Ry. Co. v. Thomp-
son, 11 Tex. Civ. App. 658; Texas Land & Loan Co. v. Watkins, 12
Tex. Civ. App. 603; Voorheis v. Waller (Tex. Civ. App.) 35 S. W.
807; Newton v. Whitney, 77 Wis. 515, 46 N. W. 882. "On a trial be-
fore a jury, where the court directs a verdict for the defendant, if
there is any question for the jury, the party should request the
court to submit the same. If no such request is made, the question
cannot be considered on review." Seymour v. Cowing, 1 Keyes (N.
Y.) 532. "Where, in an action against carriers, the plaintiff in-
tends to claim that there is a disputed question of fact in regard
to the defendant's negligence, he should make a distinct request
that it be submitted to the jury." Stedman v. Western Transp.
Co., 48 Barb. (N. Y.) 97. A guarantor, intending to rely on the
want of due diligence in collecting, or in efforts to collect, the money
due from the principal, should distinctly raise the question at the
trial by asking specific instructions to be given to the jury. Galla-
gher V. White, 31 Barb. (N. Y.) 92. "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 omission, and can be taken ad-
vantage 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
defendant'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 himself to be an infant, the only
evidence as to defendant's age is the testimony of his father, it
(307)
§ 130 INSTRUCTIONS TO JURIES. [Ch. 13
cannot be contended that the court erred in submitting the ques-
tion of his age to the jury, where defendant did not request an in-
struction that his age was conclusively proven. Lynch v. Johnson,
109 Mich. 640. 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 plead-
ings upon which evidence is introduced on the trial." Upton v.
Paxton, 72 Iowa, 299. See, also, infra, § 131, "Exceptions to General
Rule."
Failure to define terms.
"A mere defect in the charge. In failing to explain an expression
used In it, cannot avail an appellant who did not ask an appropriate
instruction at the trial." Texas & P. Ry. Co. v. O'Donnell, 58 Tex.
27. If an explanation of what constitutes a legal tenancy is de-
sired, it must be requested, Crail v. Crail, 6 Pa. 480. If the court.
In, its instructions, gives, in general terms, the elements of the crime
charged, and It Is not asked by defendant to enlarge upon aad ex-
plain further and particular elements or features thereof, failure
to give fuller and more explicit instructions is not error which will
justify a reversal. State v. Potter, 15 Kan. 302. Where a charge
on the issue of adverse possession was not erroneous, but only de-
fective, in not defining "adverse possession," plaintiff cannot assign
error, in the absence of a request for an instruction curing the omis-
sion. Robinson v. Mclver (Tex. Civ. App.) 23 S. W. 915. An omis-
sion to instruct the jury that plaintiff is entitled to interest on dam-
ages found by the jury cannot be alleged as error where plaintiff
did not ask for such an Instruction. Gulf, C. & S. F. Ry. Co. v.
Pink, 4 Tex. Civ. App. 269. In an action for negligence, a failure
to define the terms "negligence," "ordinary care," "reasonable care
and diligence," "gross negligence," "carelessness," "unfitness," as
used in the instructions, Is not error, in the absence of a request
to do so. Johnson v. Missouri Pac. Ry. Co., 96 Mb. 340; Quirk v.
St. Louis United Elevator Co., 126 Mo. 279; Kelley v. Cable Co., 7
Mont. 70; Galveston, H. & S. A. Ry. Co. v. Arlspe, 81 Tex. 517, 17
S. W. 47; Galveston, H. & S. A. Ry. Co. v. Waldo (Tex. Civ. App.)
26 S. W. 1004.
Failure to direct verdict.
A failure to direct a verdict for the defendant is not error, in the
absence of a. request so to do. Reading v. Metcalf, Hardin (Ky.)
544; Lawrence v. Hester, 93 N. C. 79; Wiggins v. Guthrie, 101 N.
C. 661; Readdy v. Borough of Shamokin, 137 Pa. 98; Pennsylvania
R. Co. V. Page, 21 Wkly. Notes Cas. (Pa.) 52; Cannell v. Smith, 142
Pa. 25; Wray v. Spence, 145 Pa. 399, 22 Atl. 693; Carr v. H. C.
Frick Coke Co., 170 Pa. 62, 32 Atl. 656.
(308)
Ch. 13] REQUESTS FOR INSTRUCiONS. § 130
Form of verdict.
Where the court instructed as to the form of a verdict of guilty of
petit or grand larceny, a failure to instruct as to the form of a ver-
dict of not guilty is not error, in absence of a request. Hodge v.
State, 85 Ind. 561, 564.
Verdict in case of joint defendants.
A failure to instruct that the jury might find one joint defendant
guilty, and disagree as to the other, is not erroneous, in the ab-
sence of a request to so instruct. Morgan v. State, 117 Ind. 569, 19
N. E. 154.
HaMlity of joint defendants.
A failure to instruct as to a separate defense of one of several
joint defendants is not error, in the absence of a request. Edwards
V. Smith, 71 Tex. 156; Shilling v. Shilling (Tex. Civ. App.) 35 S.
W. 420.
Province of court and jury.
Merely omitting to charge, when not requested, that the jury are
the judges of the facts and of the application of the law, is not re-
versible error. Butler v. State, 7 Baxt. (Tenn.) 35. 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.
Keyes v. State, 122 Ind. 527, 23 N. E. 1097.
Instructions as to evidence — In general.
Where a party desires the court to charge specially on the testi-
mony of a witness, attention should be called to the testimony by a
proper request. Kurtz v. Haines (Pa.) 15 Atl. 716. The mere omis-
sion to refer in the charge to all the evidence is not a sufficient
cause for reversing the judgment, In the absence- of a request.
Payne v. Noon (Pa.) 8 Atl. 428. 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. Unless requested, the
court need not charge upon all the points of the case, nor recapitu-
late all the evidence, nor charge upon a particular part of the tes-
timony. Boykin v. Perry, 49 N. C. 325. There is no rule of law
which requires 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 introduced in evi-
dence by one of the parties is not error, in the absence of any re-
quest to charge upon such admissions. Hawkins v. Kermode, 85
Ga. 116, 11 S. E. 560. If, in recapitulating the testimony, the court
overlooks evidence important to the defendant, it is the duty of the
prisoner's counsel to call the attention of the trial judge to the
(309)
§ 130 INSTRUCTIONS TO JURIES. £Ch. 13
omission, or error cannot be predicated upon tlie refusal of the trial
court to grant a new trial because of such omission. State v. Grady
83 N. C. 643; Brown v. Calloway, 90 N. C. 118; State v. Gould, 90
N. C. 658; State v. Reynolds, 87 N. C. 545. "The trial judge is not
required, in the absence of a prayer for special instructions, to pre-
sent the evidence in his charge in every possible aspect." Morgan
V. Lewis, 95 N. C. 296. The omission of the court to comment upon
the alleged extraordinary character of the testimony of a witness
cannot be alleged as error if the court was not requested to make
and comment. Warden v. City of Philadelphia, 167 Pa. 523, 31
Atl. 928. Although plaintiff's counsel, in an action for injuries to
a passenger, argued that the failure of defendant's servants to ap-
pear 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 em-
ployes who were connected with the running of the train. Chatta-
nooga, R. & C. R. Co. V. Huggins, 89 Ga. 494; Huggins v. Chatta-
nooga, R. & C. R. Co., 89 Ga. 494. On a prosecution for a misde-
meanor, failure to charge on circumstantial evidence is not ground
for reversal, in the absence of a request. Lucio v. State, 35 Tex.
Cr. App. 320. The omission to charge the jury, without special re-
quest, that mere possession by the husband of the wife's property
will not subject it to his debts, and that conflicting testimony ought
to be reconciled, if practicable, is not ground for a new trial. Mor-
gan V. Swann, 81 Ga. 207.
Effect of evidence.
A party may entitle himself to the opinion of the court on the
legal effect of any portion of the evidence only by specifically refer-
ring to it in his prayer for instructions. Garrett v. Jackson, 20 Pa.
331; Lancaster County Bank v. Albright, 21 Pa. 228; Dingee v.
Jackson, 23 Pa. 176. "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 statement would have in- respect to the
operation of the statute of limitations, was error warranting re-
versal if. he had been properly requested to charge that the items of
plaintiff's claim were barred unless renewed by the payment." Hol-
lywood v. Reed, 55 Mich. 308. On a rule to compel an attorney to
pay over money collected for his client, it is not error to fail to
Instruct as to the effect of receipts in full, where no such instruc-
tion is requested. Howland v. Bartlett, 86 Ga. 669, 12 S. B. 1068.
"It is not always necessary for the court to tell the jury, when not
requested to do so, what are the legal inferences from certain facts,
if proved; but where the inference Is clear, and the request is made,
(310)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 120
It Is error to refuse to so instruct." Howard v. Mutual Benefit Life
Ins. Co., 6 Mo. App. 577.
Sufflciency of evidence.
"A party who does not ask for specific Instructions as to the
amount of evidence required to overturn the presumption arising
from a settlement cannot complain if none are given." Gheen v.
Heybum, 1 Walk. (Pa.) 148. The court having charged, on plain-
tiff'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. Gottstein v.
Seattle Lumber & Commercial Co., 7 Wash. 424, 35 Pac. 133. Where
an instruction asked by plaintiff enumerates facts which establish a
prima facie case of negligence under a statute, the plaintiff need
not also recite the facts the defendant's evidence tends to prove, and
which would rebut the prima facie case established by the facts
recited by plaintiff. Louisville, B. & St. L. Consolidated R. Co. v.
Spencer, 149 111. 97.
Purpose of evidence.
The failure of the court to Instruct the jury that certain evidence
was admitted only for a certain purpose, and can be considered by
them only for that purpose, is not error. In the absence of a request
to so instruct. People v. Collins, 48 Cal. 277; People v. Gray, 66
Cal. 276; People v. Connelly (Cal.) 38 Pac. 42; Stone v. Redman,
38 Me. 578; Nininger v. Knox, 8 Minn. 140 (Gil. 116); Dow v. Mer-
rill, 65 N. H. 107; People v. McLaughlin, 2 App. Div. 419, 37 N. Y.
Supp. 1005; Walker v. Brown, 66 Tex. 556, 1 S. W. 797; Shumard v.
Johnson, 66 Tex. 70, 17 S. W. 398; Roos v. Lewyn, 5 Tex. Civ. App.
593, 23 S. W. 450, 24 S. W. 538; Roebke v. Andrews, 26 Vis. 312.
The failure of the court to instruct as to the purpose for which
certain evidence was admitted is not error, in the absence of a re-
quest for an instruction limiting the effect of such evidence to its
legitimate purpose. 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.
Mayer v. Walker, 82 Tex. 222, 17 S. W. 505; People v. Ah Yute, 53
Cal. 613. Failure to restrict the jury in Its consideration of evi-
dence, 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. On an Indictment for embezzlement, where evidence
of other similar 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
(311),
§ 130 INSTRUCTIONS TO JURIES. [Ch. 13
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.
Instructing to disregard evidence.
Where, on objection, the court excludes hearsay evidence, and the
party objecting fears the effect of such testimony notwithstanding
Its exclusion, he should request an instruction to the jury to dis-
regard it, and cannot complain of a failure to give such instruction
unless he does so request. Russell v. Nail, 79 Tex. 664, 15 S. W.
635.
Correcting error in admission of evidence.
"Where a party fails to request 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.
Exceptions.
See infra, § 131, "Exceptions to General Rule."
Proximate and remote cause.
A charge is not erroneous merely upon the ground that it does
not enter sufficiently into the particulars which distinguish proxi-
mate from remote causes. International & G. N. R. Co. v. Smith
(Tex. Sup.) 1 S. W. 565. In an action against a master by a serv-
ant to recover for injuries caused by the alleged negligence of an-
other servant, an instruction cannot be objected to as authorizing
the jury to find for plaintiff if defendant was negligent in employ-
ing the other servant, regardless of the remoteness of the negli-
gent act of employment, unless defendant requests a charge reciting
the facts which tend to establish such remoteness. Mexican Nat.
R. Co. V. Musette, 7 Tex. Civ. App. 169.
Proiable cause.
A failure to charge specially as to the meaning of probable cause
in an action for malicious prosecution cannot be assigned as error
In the absence of a request. Peterson v. Toner, 80 Mich. 350, 45
N. W. 346; Luect v. Heisler, 87 Wis. 644, 58 N. W. 1101.
Reasonable doulti.
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. Butler
V. State, 7 Baxt. (Tenn.) 35; Mead v. State, 53 N. J. Law, 601, 23
Atl. 264. Where the court instructs the jury that, "if they believe
from the evidence, etc.," and omits to add "beyond a reasonable
doubt," because, when such instruction is given, it is intended and
understood that, before the jury can convict, they must believe the
Cll. 13] REQUESTS FOR INSTRUCTIONS. § 130
material facts, "beyond a reasonable doubt," there is no available
error, and, If the defendant wants the very v^ords inserted in the
instruction, he must ask to have it done, or ask for a general in-
struction on the subject. State v. Robinson, 20 W. Va. 714.
Negligence and contributory negligence.
Failure to define the terms "negligence," "ordinary care," etc.,
see supra, this note, under "Failure to Define Terms." 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 h^ve done under 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. The failure of the court
to charge as to contributory negligence in an action for reckless driv-
ing is not error, where no request is made for such a charge. Orr
V. Garabold, 85 Ga. 373. An exception must be taken to the refusal
of the court to give a requested instruction to make such refusal
available on appeal; and where the defendant orally requests an in-
struction that he is not liable for pain or suffering arising from act
of plaintiff committed after the injury sued for, and the court says
that it has already instructed that defendant is not liable for any
aggravation of the injuries caused by the default or negligence of
plaintiff, ,and no exception is taken, defendant cannot afterwards
complain. Thrasher v. Postel, 79 Wis. 503.
Mental capacity.
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
capacity to make a valid conveyance, a request for a special In-
struction upon the mental capacity of the grantor must be made to
render the failure to charge on the point error. Berryman v. Schu-
maker, 67 Tex. 312.
Payment.
Where, in an action to recover for services rendered, payment of
part of the account is admitted, the court's failure to mention the
subject 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 pre-
sumption of payment from lapse of time is not error, in the ab-
(313)
§ 130 INSTRUCTIONS TO JURIES.. [Ch. 13
sence of a request to crharge upon that point. Abrahams v. Kelly,
2 S. C. 237.
2>[otice.
Where the court charged that the case turned mainly upon the
question of notice, hut 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. Where the issue
is whether or not the defendant purchased with notice of plaintiffs
claim, a failure to instruct as to the law of constructive notice is
not error, in the absence of a request. Brotherton v. Weathersby,
73 Tex. 471, 11 S, W. 505. 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 a business manager
is not error, in the absence of a request to charge upon that point.
Brown v. Poster, 41 S. C. 118.
Adverse possession and statute of limitations.
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. Mclver (Tex. Civ. App.) 23 S. W. 915. Where adverse
possession of uncultivated and uninclosed land is relied 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. The general rule that, when the court fails
to charge on an issue raised by the pleadings and evidence, the omis-
sion cannot be alleged as error unless a special charge covering the
point Is asked, applies to the issue of the application of the statute
of limitations. Rackley v. Fowlkes (Tex. Civ. App.) 36 S. W. 75.
"The defendant pleaded the statute of limitations, and the testi-
mony was such as to raise the issue. The court charged the jury
that 'the defendant had pleaded the statute of limitations in bar
of plaintiff's action, among other defenses,' and did not further in-
struct upon that subject. No instruction was asked. 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." Hocker v. Day, 80 Tex. 529, 16 S. W. 322.
Existence of contract.
"Where the question raised by the pleadings was whether there
had been an express contract by a mother-in-law to pay her son-
(314)
Ch. 13] REQUEST FOR INSTRUCTIONS. § 130
In-law, witn wliom 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 purpose
of determining whether" or not an agreement should be implied or
inferred therefrom," the failure to give additional and more ex-
plicit Instructions is not error, in the absence of a request therefor.
Austin V. Moe. 68 Wis. 458.
Performance of contract.
"It was proper for the trial court to submit to the jury the
question whether or not the plaintiff, by reason of her temporary
disability, failed to perform the contract of employment on her
part in any substantial manner; but inasmuch as defendant's coun-
sel failed to make a specific request that the court so charge, his
omission to submit that question to the jury cannot, for the pur-
pose of this appeal, be assigned as error." Fisher v. Monroe, 16
Daly (N. Y.) 467; Winchell v. Hicks, 18 N. Y. 559; Muller v. Mc-
Kesson, 73 N. Y. 195.
Construction of written instrument.
If a party desires the court to place a construction upon a con-
tract, he should ask for it. State Nat. Bank of Springfield v. Ben-
nett, 8 Ind. App. 679; Barnett v. State, 100 Ind. 171. "If the pre-
siding judge is not requested to give any instructions in reference
to the nature and effect of a written instrument introduced in evi-
dence at the trial, the omission to do so is no valid ground of ex-
ceptions unless the liability of the party is to be determined solely
by the legal construction to be put upon it." Badger v. Bank of
Cumberland. 26 Me. 428.
False representations.
"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 exchange, made false representations as to the soundness of
their horse, uDon which the defendant relied as true, and' the horse
received by the defendant was worth the most, the difference be-
tween 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 requested no instructions upon the hypothesis that the de-
fects 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. Elliott, 15 Gray (Mass.) 90.
Assum,ption of risks.
The failure of the court to charge that a servant assumes the
(315)
§ 130 INSTRUCTIONS TO JUtUKS. [Ch. 13
risk incident to the employment does not furnlsli ground for re-
versal, where no special charge is requested. International & G. N.
R. Co. V. Beasley. 9 Tex. Civ. App. 569.
Fellow servants.
Where, in an action by a servant against a master, the court has
correctly stated who are fellow servants, if the defendant desires
specific instructions on the point of the relation between the plain-
tiff and another employe whose negligence is alleged to have caused
the injury sued tor, the defendant should request such instruction.
Philadelphia & Reading R. Co. v. Trainor, 137 Pa. 148, 26 Wkly.
Notes Cas. (Pa.) 441, 20 Atl. 632.
Scope of employment.
Where the court has charged the jury that the defendant is not
liable for the acts of his servant beyond the scope of his employ-
ment, a failure to state what constitutes an act within the scope
of a servant's employment is not reversible error, in the absence
of a request for such an explanation. Vernon v. Cornwell, 104
Mich. 62.
Present worth of money.
An instruction on the measure of damages in an action, "I sup-
pose 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. Kinney v. Folkerts, 84 Mich. 616, 48 N. W. 283.
Theory of case.
A party cannot complain that the instructions given did not prop-
erly present his theory of the case, where he did not request an
instruction covering the omission complained of. Village of Hyde
Park V. Washington Ice Co., 117 111. 233; Turner v. People, 33 Mich.
382; Howry v. Eppinger, 34 Mich. 35; Ward v. Ward, 37 Mich. 259,
and cases cited; Advertiser & Tribune Co. v. City of Detroit, 43
Mich. 120; Hitchcock v. Supreme Tent, K. M. W., 107 Mich. 391.
"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.
Measure of damages.
A party will not be heard to complain that the instructions as to
the measure of damages in the particular case were insufficient, in
the absence of a request for further instruction. The failure to
state a definite rule for assessing damages is not error. Buzzell v.
Emerton, 161 Mass. 176; Clapp v. Minneapolis & St. L. Ry. Co., 36
(316)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 130
Minn. 6; Taylor v. City of Springfield, 61 Mo. App. 263; Browning v.
Wabash Western Ry. Co., 124 Mo. 55, 27 S. W. 644; Harris v.
Nortliern Indiana R. Co., 20 N. Y. 232, 239; Willey v. Norfolk S.
R. Co., 96 N. C. 408, X S. B. 446; Page v. Finley, 8 Or. 45; Freiberg
T. Elliott (Tex.) 8 S. W. 322; Maverick v. Maury, 79 Tex. 435, 15
S. W. 686; Gulf, C. & S. F. Ry. Co. v. Harmonson (Tex. Civ. App.)
22 S. W. 764; Galveston, H. & S. A. Ry. Co. v. Wortliy (Tex. Civ.
App.) 27 S. W. 426; Stewart v. City of Ripon, 38 Wis. 584; Teyas
& P. Ry. Co. v. Cody, 14 C. C. A. 310. "The better practice in suits
for damages for personal injuries 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." Galveston Oil Co. v. Malin, 60 Tex. 645. The
omission of the court to charge for interest on damages recovered
cannot be assigned as error where no special instruction is asked.
Gulf, C. & S. F. Ry. Co. v. Fink, 4 Tex. Civ. App. 269. In the ab-
sence of a request, a failure to instruct as to what matters may be
considered in mitigation of damages is not error. East Tennessee,
V. & G. Ry. Co. V. Fleetwood, 90 Ga. 24; Kelley v. Kelley, 8 Ind.
App. 606, 613; Tetherow v. St. Joseph & D. M. R. Co., 98 Mo. 74;
San Antonio & A. P. Ry. Co. v. Knitfen, 4 Tex. Civ. App. 484, 23 S.
W. 457.
Costs.
Where a set-off was involved, and a general verdict was rendered
for the defendant, without showing whether the plaintiff had failed
to establish any claim, or whether his demand was balanced by the
set-off, the plaintiff cannot complain that the judge did not instruct
the jury In relation to the costs, unless such instruction was re-
quested. Osgood V. Lansil, 33 Me. 360.
Lower degrees of crime.
It cannot be urged as error in a case of homicide that the court
failed to submit instructions to the jury as to the law of man-
slaughter applicable to the case, defendant not having asked it Ed-
wards V. State, 47 Miss. 589. Compare 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 request. Adams v. State, 65
Ind. 565. On indictment for assault 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 as-
sault with intent to commit rape, as the defendant could not have
been prejudiced by a charge which allowed the defendant to be
(317)
§ 130 INSTRUCTIONS TO JURIES. [Ch. 13
acquitted unless the jury, on the evidence, found him guilty of the
higher crime charged. State v. Hanlon, 62 Vt. 334.
Venue of crime.
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. People v.
Marks, 72 Cal. 46.
Drunkenness as a defense to crime.
A failure to charge in respect to a statute providing that drunk-
enness shall be no excuse for crime is not error, in the absence of
a request. So held on indictment for assault with intent to kill.
Thomas v. State, 91 Ga. 204, 18 S. B. 305.
Self-defense.
"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 reasonable 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.
Recommendation to m,ercy.
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 punish-
ment mitigated. State v. Dodson, 16 S. C. 463.
Right of jury to relieve from death penalty.
"The language used is: 'It is within your discretion to pro-
nounce such a sentence as will relieve such defendant from the
extreme penalty of the law.' The Instruction is certainly open to
criticism 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 relieve a defendant from the extreme penalty of
the law, but they should be told in specific terms what verdict 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, allowing them to select the one agreed upon
by them. But the jury were apprised of the fact here that they
were not bound to return such a verdict as would result in the
infliction of the death penalty. There was nothing in the instruc-
tion to mislead. If the counsel for defendant desired a more spe-
cific charge upon the point, they should have asked it, and, if they
did not do so, the responsibility must rest with them. People v.
Haun, 44 Cal. 96; People v. Ah Wee, 48 Cal. 237; People v. Collins,
Id. 277; People v. Flynn, 73 Cal. 511, 15 Pac. 102. We do not wish
to be understood as holding that an entire failure to instruct on this
subject, in this class of cases, would not be error; but where the
(318)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 131
court does instruct and call to the attention of the jury that it is
■within their province to determine whether or not the extreme
penalty shall be inflicted, and the instruction 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 below has not been called to it, and no more
specific Instruction has been asked for." People v. Olsen, 80 Cal.
122.
§ 131. Same — Exceptions to general rule.
In a few states, as has been seen, the rule prevails, even
in civil cases, that the court must instruct the jury, upon the
substantial issues involved, whether requested to do so or
not.^" A failure to instruct to this extent constitutes error,
even though no instructions were asked.^^ In criminal cases
it is the rule in several states that it is the duty of the court,
whether properly requested or not, to instruct the jury fully
upon all questions of law arising in the case, and a failure
to do so is ground for a new trial and reversible error,^^ un-
less in the particular case the error was harmless.^* In
Texas this rule applies in cases of felony,^*, but not in cases
«
" See supra, § ] 27, "Where No Instructions are Given."
21 Donahue v. Windsor County M. Fire Ins. Co., 56 Vt. 374. For
various statements and illustrations of this rule, see cases col-
lected in digest of decisions, infra, § 132.
22 People V. Byrnes, 30 Cal. 206; State v. Brainard, 25 Iowa, 572;
State V. O'Hagan, 38 Iowa, 504; Heilman v. Com., 84 Ky. 461;
People V. Murray, 72 Mich. 10; State v. Matthews, 20 Mo. 55; State
V. Stonum, 62 Mo. 596; State v. Branstetter, 65 Mo. 155; State v.
Kilgore, 70 Mo. 546; State v. Banks, 73 Mo. 592; Id., 10 Mo. App.
Ill; State v. Palmer, 88 Mo. 572; Lang v. State, 16 Lea (Tenn.)
433; Potter v. State, 85 Tenn. 88; Nelson v. State, 2 Swan (Tenn.)
237; Williams v. State, 3 Heisk. (Tenn.) 379; State v. Myers, 8
Wash. 177.
23Honeycutt v. State, 8 Baxt. (Tenn.) 372; Good v. State, 1 Lea
(Tenn.) 293; Pitts v. State (Tex. Cr. App.) 24 S. W. 896; Gentry
V. State, 25 Tex. App. 614.
24 Sanders v. State, 41 Tex. 306; Villareal v. State, 26 Tex. 107;
Maria v. State, 28 Tex. 698; Fulcher v. State, 41 Tex. 233; Bishop
(319) -
§ 131 INSTRUCTIONS TO JURIES. [Ch. 13
of misdemeanor, as to wliieli the ordinary rule requiring a
request as a foundation for error applies.^'
Even under this exception, however, if the instructions
given fairly and substantially cover the issues in the case, a
failure to give a particular instruction is not error, in the
absence of a request. If 'a party desires further and more
specific instructions, he must request them, or he will not be
heard to complain.^'
v. State, 43 Tex. 390; Jenkins v. State, 1 Tex. App. 346; Jobe v.
State, 1 Tex. App. 186; Lister v. State, 3 Tex. App. 18; Wasson
T. State, 3 Tex. App. 474; Curry v. State, 4 Tex. App. 574; Robin-
son V. State, 5 Tex. App. 519; Smith v. State, 7 Tex. App. 414,;
Reynolds v. State, 8 Tex. App. 412; Greta v. State, 9 Tex. Agp.
434; Jackson v. State, 15 Tex. App. 84; White v. State, 18 Tex.
App. 57; Bell v. State. 21 Tex. App. 270; Barbee v. State, 23 Tex.
App. 199, 4 S. W. 584; Warren v. State, 33 Tex. Cr. App. 502;
Sexton V. State, 33 Tex. Cr. App. 416; Miers v. State, 34 Tex. Cr.
App. 161; 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 de-
duction which the jury may draw from the evidence. Johnson v.
State, 27 Tex. 758; Dawson v. State, 33 Tex. 491; Curry v. State,
4 Tex. App. 574; Jobe v. State, 1 Tex. App. 186; Bronson v. State,
2 Tex. App. 46; Lister v. State, 3 Tex. App. 18; Thrasher v. State,
3 Tex. App. 281; Noland v. State, 3 Tex. App. 598; Holden v.
State, 1 Tex. App. 226; Bishop v. State, 43 Tex. 391.
26 Sparks v. State, 23 Tex. App. 447; Davidson v. State, 27 Tex.
App. 262, 11 S. W. 371; Lyon v. State (Tex. Cr. App.) 34 S. W.
947; Porter v. State, 1 Tex. App. 477; Waechter v. State, 34 Tex.
Cr. App. 297; Lucio v. State, 35 Tex. Cr. App. 320; Hurley v. State,
36 Tex. Cr. App. 73.
26 People V. Byrnes, 30 Cal. 206; Fortson v. Mikell, 97 Ga. 336;
State V. Helvin, 65 Iowa, 289; Douglass v. Geiler, 32 Kan. 499;
State V. Pfefferle, 36 Kan. 90; State v. Nickens, 122 Mo. 607;
State V. Baldwin, 56 Mo. App. 423; State v. Kilgore, 70 Mo. 546;
State V. Brooks, 92 Mo. 542; State v. Leeper, 78 Mo. 470; Sioux
City & P. R. Co. V. Finlayson, 16 Neb. 578; York Park Bldg. Ass'n
V. Barnes, 39 Neb. 834; German Nat. Bank of Hastings v. Leonard,
. (320)
Ch. 13] REQUESTS FOR INSTRUCTIONS. g 132
Where 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.^'' So,- where the cause of action is based upon
an illegal or immoral consideration, it is the duty of the
court, of its own motion, to instruct the jury that the plain-
tiff cannot recover, and a failure to do so is ground for a new
trial, because the court will not enforce such claims, even if
the parties do not object.^* In an action of criminal con-
versation,, where it appeared that the husband had connived
at the intercourse, a failure of the court to apply the rule
that such connivance is a bar to the action is ground for re-
versal, even in the absence of a request, because in such case
the real question in issue has not been determined.^®
§ 132. Same — Digest of decisions.
Civil cases.
"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. "All the rights of a respondent can be saved without any re-
quests for instructions." Taft, J., in State v. Hopkins, 56 Vt. 250.
"No requests are needed in any case for the purpose of protecting
any rights." Veazey, J., in Town of Westmore v. Town of Sheffield,
56 Vt. 239. The county court is bound to charge upon every point
material to the decision of the case upon which there is evidence,
and to charge correctly and fully, whether requested to do so or not.
Donahue v. Windsor Co. M. Ins. Co., 56 Vt. 374. In an action on a
fire insurance policy which provides that notice of a loss must be
given "forthwith," the question of seasonable notice Is one of fact
40 Neb. 676; Hill v. State, 42 Neb. 503; Housh v. State, 43 Neb.
163; Carleton v. State, 43 Neb. 402; Bramlette v. State, 21 Tex.
App. 611; Marshall v. State, 37 Tex. Cr. App. 450; Walker v. Walt,
BO Vt. 668; Rowland v. Day, 56 Vt. 324.
2T International & G. N. R. Co. v. Underwood, 64 Tex. 463.
28Viser v. Bertrand, 14 Ark. 267.
28 Bunnell v. Greathead, 49 Barb. (N. Y.) 106.
(321)
21 — Ins. to Juries.
§ 132 INSTRUCTIONS TO JURIES. [Ch. 13
■which the court must submit to the jury, whether requested to do
so or not, and a failure to do so is covered by a general exception
to the charge. Donahue v. Windsor Co. M. Ins. Co., 56 Vt. 374.
The court is "bound to charge the jury correctly upon all the points
raised in argument, or which fairly grow out of the evidence,"
whether requested or not. Vaughan v. Porter, 16 Vt. 266; Donahue
V. Windsor Co. M. Ins. Co., 56 Vt. 374. It is the duty of the trial
court to instruct the jury on questions of law which he deems ap-
plicable to the case made by the pleadings and the evidence, and,
if the party desires other or different instructions, he must request
them. If no such request is made, the instructions given stand as
the law of the case for that trial. Douglass v. Geiler, 32 Kan. 499.
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.
The theory of each side should be fully and fairly given. Freeman
V. Hamilton, 74 Ga. 318. "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 (Phinney v. Bronson, 43 Kan. 451).
"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 intro-
duced on the trial." Upton v. Paxton, 72 Iowa, 299. "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 opinion
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." McNeill v. Massey, 10 N. C. 91.
Criminal cases.
The instructions must go to the extent of fairly presenting the
case to the jury. State v. Shenkle, 36 Kan. 43; State v. Pfefferle,
36 Kan. 90. In a trial for forgery, a failure by the court to give
instructions respecting the law applicable to the offense, and to a
certain line of defense, of which there was sufficient evidence to
require it to be considered by the jury, though no instructions
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 defective or insufficient,
the law complicated, 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.
(322)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 132
"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 satisfaction, they will find the de-
fendant 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 in-
terested in the result, or whose testimony should be weighed with
special care and caution as accomplices. But it is not proper to
discuss the policy of using such witnesses. 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 definition. State v. Clark, 78
Iowa, 492.
Jury as judges of facts.
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 testimony. Barbee v. State, 23 Tex.
App; 199.
Degree of crime.
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. Branstetter, 65 Mo. 155; State V. Banks, 73 Mo. 592. 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 of-
fense, will be cause for reversal, 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 antecedent to the commission, which, in connection
with the other evidence, was important with reference to the degree
of offense of which the accused was guilty, it was the duty of the
judge to have instructed the jury distinctly as to the degrees of
murder, and to have defined what the law means by express malice
and implied malice, in such manner, that a jury of ordinary intelli-
gence would be enabled to comprehend the distinction between the
two kinds of malice." Villareal v. State, 26 Tex. 107. "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 intent
(323);
§ 132 INSTRUCTIONS TO JURIES. [Ch. 13
to commit rape, — and the verdict 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
second count was not reversible error." Parham v. State, 10 Lea
(Tenn.) 502. 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 instruct as to the latter offense, and the error is not
waived by the defendant's failing to request such an instruction,
or to except to its omission. State v. Cody, 18 Or. 506, 23 Pac. 891.
Alibi.
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 evi-
dence in a criminal case tending to prove an alibi, an instruction
on that subject must be given, whether requested by defendant
or not. State v. Taylor, 118 Mo. 153, 24 S. W. 449. In a prose-
cution for a misdemeanor, before defendant can be heard to com-
plain of an omission to charge an alibi, he must have prepared
and presented a charge to the court on alibi, and, on the refusal of
the court to give such charge, he must have saved his bill of ex-
ceptions thereto. Lyon v. State (Tex. Cr. App.) 34 S. "W. 947. "It
is settled by repeated decisions 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 reasonable doubt, where
no additional instruction is requested, more explicitly amplifying
the law upon that subject." Oxford v. State, 32 Tex. Cr. App. 272.
Self-defense.
"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; Jackson
V. State, 15 Tex. App. 84; Ash worth v. State, 19 Tex. App. 182;
Guffee v. State, 8 Tex. App. 277; King v. State, 13 Tex. App. 277;
Edwards v. State, 5 Tex. App. 593; North v. State, 12 Tex. App.
Ill; Sterling v. State, 15 Tex. App. 249; Poster v. State, 8 Tex.
App. 248; Kemp v. State, 11 Tex. App. 174. "Where, on trial for
murder, there is proof that deceased made threats against defend-
ant, 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 diilioulty, and was in fault at time of killing, the
failure of the court to charge the law applicable 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 instructions were asked." Potter v. State, 85 Tenn. 88.
(324)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 133
Insanity as a defense.
Where there is evidence tending to establish the defense of in-
sanity,- the court should give a direct, positive and aflBrmative in-
struction upon insanity as a defense, and should tell the jury what
the statute declares, — that "no act done in a state of insanity can
be punished as an offense." Smith v. State, 19 Tex. App. 96.
Good character of defendant.
The trial court is not bound, unless requested, to instruct the jury
as to the legal effect of evidence offered by defendant to establish
his general reputation as a peaceable and quiet citizen. State v.
Nugent, 71 Mb. 136; State v. Nickens, 122 Mo. 607.
Presumption of innocence.
"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 ' -'onable doubt, and that should be held
sufficient. There is a di-dremje between innocence and doubtful
innocence. Neither, it is true, will allow a conviction, but the pre-
sumption abides with the accused from the beginning, and is, alone
a sufficient defense until overthrown by proof. This is not the im-
pression 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 neces-
sity for the charge omitted in this case. It should have been given
by the court, although no request therefor was made by counsel."
People V. Macard, 73 Mich. 25.
Reasonable doubt.
"The court instructed the jury that, before they convicted de-
fendant, they ought to be satisfied of his guilt beyond a reasonable
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 touching his guilt, and not a mere possibility of his inno-
cence. If defendant 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 correct general charge on reason-
able doubt is sufficient. Carson v. State, 34 Tex. Cr. App. 342.
Presum,ption from refusal to testify.
Where the statute provides that "it shall be the duty of the court
(325)
§ 132 INSTRUCTIONS TO JURIES. [Ch. 13
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 \,o testify. In case of such a statute, the gen-
eral rule that, where the law requires the court to instruct the
jury upon the law, the failure of the court to do so, in the absence
of a request, is not error, does not apply. State v. Myers, 8 Wash.
177, 35 Pac. 580, 756.
Limiting effect of evidence.
Where testimony as to other and different offenses is admitted,
the judge, whether requested or not, should, in his charge, limit the
evidence to the purpose for which it was admitted, viz., the im-
peachment of the credibility of defendant. Warren v. State, 33 Tex.
Gr. 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. Matkins v. State, 33 Tex. Cr. App. 605, 28 S.
W. 536.
Effect of impeaching testimony.
The court is not bound to instruct as to the effect of impeaching
testimony, in the absence of a request, this being a collateral mat-
ter. State V. Kilgore, 70 Mo. 546, distinguishing State v. Branstet-
ter, 65 Mo. 149.
Presumptions as to criminal capacity.
The court must instruct as to the presumptions of legal capacity
of children to commit a crime, where the evidence raises the ques-
tion. Heilman v. Com., 84 Ky. 461.
In North Carolina, Code, § 413, requires the court to "state in a
plain and correct manner the evidence given in the case, and declare
and explain the law arising thereon." For the construction and
application of this statute, see the following cases: State v. Moses,
13 N. C. 452; State v. Morris, 10 N. C. 391; Bailey v. Poole, 35 N. C.
404; State v. Dunlop, 65 N. C. 292; State v. Matthews, 78 N. C. 523;
State V. Jones, 87 N. C. 547; State v. Rogers, 93 N. C. 523; Holly v.
Holly, 94 N. C. 100; Phifer v. Alexander, 97 N. C. 335; State v.
Boyle, 104 N. C. 820; State v. Pritchett, 106 N. C. 667. 11 S. B. 357;
State V. Brady, 107 N. C. 822. "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 appli-
cation of them to the facts of the case, does not meet the require-
ments of the statute, and furnishes sufficient grounds for a new
trial. He should not recapitulate the evidence in detail, but elimi-
nate the material facts, array the state of facts on both sides, and
(326)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 133
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. C. 547.
§ 133. Where erroneous instructions are given.
The giving of an erroneous instruction is error, whether
any requests to charge were made or not. A request to mod-
ify or correct the instruction given is not necessary to enable
a party to assign error.^" Such error may, of course, be
harmless, and not ground for reversal.^^ And, as a general
s» State v. Pennell, 56 Iowa, 29; State v. Walters, 45 Iowa, 390;
State V. Glynden, 51 Iowa, 463; Stephenson v. Thayer, 63 Me. 143;
Parsons v. Brown, 15 Barb. (N. Y.) 590; Carnes v. Piatt, 6 Rob.
(N. Y.) 270; Gowdey r. Robbins, 38 N. Y. Supp. 280, 3 App. Div.
353; Bynum v. Bynum, 33 N. C. 632; Hice v. Woodard, 34 N. G.
293; McRae's Adm'r v. Evans, 18 N. C. 243; Pierce v. Alspaugh,
83 N. C. 258; Jones v. State, 20 Ohio, 46; Globe Ins. Co. v. Sherlock,
25 Ohio St. 50; Seigle v. Louderbaugh, 5 Pa. 490; Carter v. Colum-
bia & G. R. Co., ],9 S. C. 26; Ford v. McBryde, 45 Tex. 499. "If a
judge omits to charge upon a point presented by the evidence, it
is no error, unless he has been requested to give the charge; hut
if he make a charge against law, it is error, unless it be upon
a mere abstract proposition, and It Is apparent 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.
Saunders, 2 Posey, Unrep. Cas. (Tex.) 122. Where the judge char-
ged that defendants were liable even if the jury should find the
facts precisely as defendant's witnesses testified, and thereupon di-
rected verdict for plaintiffs, to which defendants excepted, 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. Y. 104.
81 Generally, as to harmless error in instructions, see chapter
32, "Appellate Review of Instructions." "Where the jury has been
misdirected in reference to a controlling question in the case, the
judgment should he reversed and a new trial granted, although the
weight of evidence may seem to support the verdict." Globe Ins.
Co. Y. Sherlock, 25 Ohio St. 50.
(327)
§ 134 INSTRUCTIONS TO JURIES. [Ch. 13
rule, an objection must be made and an exception saved, or
the error will be deemed waived.^^
III. Time of Making Request.
§ 134. Necessity of request in apt and proper time.
In order to entitle a party to insist that a proper instruc-
tion requested by him shall be given, his request must have
been presented to the court in apt and proper time. It is a
general rule that requests not made at the proper time may
be refused.^^ Requests prematurely made may be refused
Vi'ithout error, as well as requests made too late.** The court,
however, is not bound to refuse a request for instructions
merely because it is presented at an improper time, but may,
if it sees fit, give the requested instruction.^^ In other
32 See chapter 32, "Appellate Review of Instructions." See Abra-
hams V. Kelly, 2 S. C. 237, wherein it is said that a misstatement
of the law is not error unless the attention of the trial lourt is
called to it, and he neglects or refuses to correct it.
33 Territory y. Harper, 1 Ariz. 399; Waldie v. Doll, 29 Cal. 555;
Anderson v. Parker, 6 Cal. 197; Chicago Anderson Pressed Brick
Co. v. Sobkowiak, 148 111. 573, 36 N. B. 572; Benson v. State, 119
Ind. 488; Town of Noblesville v. Vestal, 118 Ind. 80; Grubb v. State.
117 Ind. 277; Evansville & Terre Haute R. Co. v. Crist, 116 Ind.
446; Hege v. Newsom, 96 Ind. 426; Terry v. Shively, 93 Ind. 413;
Fitzgerald v. Jerolaman, 10 Ind. 336; Kackley v. Evansville & Terre
Haute R. Co., 7 Ind. App. 169; Payne v. Payne, 57 Mo. App. 130;
Watson V. Race, 46 Mo. App. 546; Sohuhle v. Cunningham, 13 N. Y.
St. Rep. 81; Shober v. Wheeler, 113 N. C. 370, 18 S. E. 328; Luttrell
V. Martin, 112 N. C. 593; Grubbs v. North Carolina Home Ins. Co.,
108 N. C. 472, 13 S. E. 236; Marsh v. Richardson, 106 N. C. 539;
Davis V. Council, 92 N. C. 725; Kinley v. Hill, 4 Watts & S. (Pa.)
426; Wilmot v. Howard, 39 Vt. 447; Cady v. Owen, 34 Vt. 598;
Vaughan v. Porter, 16 Vt. 266; Richmond & M. R. Co. v. Humphreys,
90 Va. 425; Allen v. Perry, 56 Wis. 178.
34 Chesapeake, 0. & S. W. R. Co. v. Hendricks, 88 Tenn. 710.
35 A rule of court as to the time of presenting requests for in-
structions is permissive only, and may be waived by the court.
Sanborn v. School Dist. No. 10, 12 Minn. 17.
(328)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 134
words, where the request is not made at the proper time, the
court, in the exercise of a sound discretion, may either give
or refuse the requested instructions, and in either case no er-
ror is committed.*® While this is undoubtedly the general
rule, it is not rigidly adhered to in all cases. Circumstances
may exist, such as matters arising in the course of the argu-
ment, 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 the time designated by statute
or rule of court.*'^ "The object of the law is to administer
se Phillips' Case, 132 Mass. 233; Ela v. Cockshott, 119 Mass. 416;
Shartle v. City of Minneapolis, 17 Minn. 308; Sanborn v. School
Dist. No. 10, 12 Minn. 17; Wood v. State, 64 Miss. 761; Buck v.
People's St. Ry. & Electric Light & Power Co., 108 Mo. 179; Cluskey
V. City of St. Louis, 50 Mo. 89; State v. Bickel, 7 Mo. App. 572;
Engeman v. State, 54 N. J. Law, 247; Chapman v. McCormlck, 86
N. Y. 479; Ward v. Albemarle & R. R. Co., 112 N. C. 168; Shober
V. Wheeler, 113 N. C. 370; State v. Barbee, 92 N. C. 820; Jarrett v.
Stevens, 36 W. Va. 445; Tully v. Despard, 31 W. Va. 370; Life Ins.
Co. V. Francisco, 17 Wall. (U. S.) 680.
37 People V. Sears, 18 Cal. 635; Brick v. Bosworth, 162 Mass. 338;
McMahon v. O'Connor, 137 Mass. 216; Ela v. Cockshott, 119 Mass.
416; Crippen v. Hope, 38 Mich. 344; People v. Garbutt, 17 Mich.
25; Chapman v. McCormick, 86 N. Y. 479; Winne v. Brundage, 40
N. Y. Supp. 225; Carey v. Chicago, M. & St. P. Ry. Co., 61 Wis. 76.
"A rule of a circuit court, 'that instructions to a jury will not
be entertained or considered unless submitted before the conclu-
sion of the argument of the case,' is a reasonable rule, and tends
to the promotion of justice, and should be enforced, 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
requests for instructions to be submitted to the opposite counsel
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 entertaih 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 of the court to charge
(329)
g 134 INSTRUCTIONS TO JURIES. [Ch. 13
justice, and rules of court for conducting trials should not
be so construed as to prevent a fair subniission of a case to
the jury."** Where the refusal to give an instruction be-
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 required requests to be presented
before argument. People v. Demasters, 105 Cal. 669. Instructions
which are reasonable and pertinent, and are submitted before the
jury retire, should be given, notwithstanding there is a general
rule of the court that requests for instructions must be submitted
before 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 requiring all instructions to
be submitted before the commencement of the argument." Billings
V. McCoy, 5 Neb. I'SS. "It is error in the court, at the 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
inadvertently overlooked, the court should not refuse to give it,
even after argument, unless giving it at that time will unduly preju-
dice the opposite party. Wills v. Tanner, 13 Ky. Law Rep. 741, 18
S. W. 166.
38 Billings V. McCoy, 5 Neb. 191. "To refuse an instruction asked
for soon after the court had refused one deemed deficient in form,
but containing the same legal principle, because 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 could 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. "Rules 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, when-
ever the purposes of justice require it." People v. Demasters, 105
Cal. 673, quoting, with approval, Pickett v. Wallace, 54 Cal. 148.
See, also, People v. Williams, 32 Cal. 280.
(330)
Ch. 131 REQUESTS FOR INSTRUCTIONS. § 135
cause not presented in time would work injustice, the court
should either waive its rule, and give the instruction, or
make such explanations of its own as would put the law cor-
rectly before the jury.^' But where a full and fair oppor-
tunity 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 unnecessarily delayed.*" 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.'**
§ 135. What is apt and proper time.
The proper time at which to submit requests for instruc-
tions varies in different jurisdictions. Sometimes it is fixed
by statute or rule of court.* ^ The court may prescribe rea-
sonable rules as to the time of presenting requests.*^ The
»» People T. Keefer, 18 Cal. 636.
« Schuhle Vf Cunningham, 14 Daly (N. T.) 404; O'Neil v. Dry
Dock, E. B. & B. R. Co., 129 N. Y. 130; Williams v. Com., 85 Va.
607; TuUy v. Despard, 31 W. Va. 370.
*i Phillips V. Thome, 103 Ind. 275, 278; Atchison, T. & S. F. R. Co.
T. Prazi«r, 27 Kan. 463.
*2Tinney v. Bndicott, 5 Cal. 102; Pitch v. Belding, 49 Conn. 469;
McCaleb v. Smith, 22 Iowa, 242; Billings v. McCoy, 5 Neb. 187;
State V. Hutchings, 24 S. C. 145.
4s Carney v. Barrett, 4 Or. 171; Prindeville v. People, 42 111. 217;
McMahon v. O'Connor, 137 Mass. 216. A rule requiring requests to
Ije submitted before the conclusion of the argument is a reason-
able rule. Sterling Organ Co. v. House, 25 W. Va. 65. An in-
struction should not be refused upon the ground that it was not
presented in time, where there is no written rule of court limiting
the time for presenting requests. "A rule could only exist in writ-
ing of record, as, when thus adopted, it has the force of law. The
rule could not ejdst in the breast of the judge alone, but must be
ajULOOBeed aa a rule made of record, and is then applicable to all
fSZl)
§ 135 INSTRUCTIONS TO JURIES. [Ch. 13
rule prevailing in most jurisdictions requires the request to
be made at or before the close of the evidence, and before the
beginning of the argument,** though in some states it is the
cases without discretion, unless an exercise of discretion is re-
served in the rule." Chicago Anderson Pressed Brick Co. v. Sob-
kowiak, 148 111. 573. Rule requiring instructions to be presented in
writing before argument is reasonable. Manhattan Life Ins. Co. v.
Francisco, 17 Wall. (U. S.) 672. "Courts have the right to make a
rule, in criminal cases, that written instructions must be handed
to the court before the argument of the case commences." People
V. Sears, 18 Gal. 635. The court cannot lay down an unbending
rule that all requests to charge shall be submitted before the argu-
ment is begun. People v. Garbutt, 17 Mich. 9. "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 Lift. (Ky.) 133.
44 Territory v. Harper, 1 Ariz. 399; McMahon v. Sankey, 35 111.
App. 345; Benson v. State, 119 Ind. '•.S8; Evansville & T. H. R. Co.
V. Crist, 116 Ind. 446; Phillips v. Thorne, 103 Ind. 275, 278; Hege v.
Newsom, 96 Ind. 426; Terry v. Shively, 93 Ind. 413; Grubb v. State,
117 Ind. 277, 280; Surber v. State, 99 Ind. 71, 73; Foxwell v. State,
G3 Ind. 539; Glasgow v. Hobbs, 52 Ind. 239; 011am v. Shaw, 27
Ind. 388; Louisville, N. A. & C. Ry. Co. v. Wood, 113 Ind. 544;
Kopelke v. Kopelke, 112 Ind. 435; Anderson v. Lake Shore & M.
S. Ry. Co., 26 Ind. App. 196; Lake Brie & W. R. Co. v. BrafCord
(Ind. App.) 43 N. E. 882; Ransbottom v. State, 144 Ind. 250; Ger-
man Fire Ins. Co. v. Columbia Encaustic Tile Co., 15 Ind. App.
623; Atchison, T. & S. F. R. Co. v. Franklin, 23 Kan. 74; Ela v.
Cockshott, 119 Mass. 416; Payne v. Payne, 57 Mo. App. 130; State
V. Bickel, 7 Mo. App. 572; Luttrell v. Martin, 112 N. C. 593; Ward
V. Albemarle & Raleigh R. Co., 112 N. C. If"; 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; Taylor v. Plummer, 105
N. C. 56; Powell v. Wilmington & W. R. Co., 68 N. C. 395; State v.
Rowe, 98 N. C. 629; Caldwell v. Brown, 9 Ohio Cir. Ct. R. 691; Lutter-
beck V. Toledo Consolidated St. R. Co., 5 Ohio Cir. Dec. 141; Kin-
ley V. Hill, 4 Watts & S. (Pa.) 426; White v. Amrhien, 14 S. D.
270; United States v. Gilbert, 2 Sumn. 22, Fed. Cas. No. 15,204;
Manhattan Life Ins. Co. v. Francisco, 17 Wall. (U. S.) 672. See
People V. Demastezs, 105 Cal. 669; People v. Sears, 18 Cal. 635;
Brick v. Bosworth, 162 iSlass. 338; Carey v. Chicago, M. & St. P.
(332)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 135
practice to request instructions after the argument.*^ In
some jursdietions, the request must be made before the giv-
ing of the general charge, or it will be too late, and may be
refused ;** while in other jurisdictions, requests for addition-
al instructions may b? made after the general charge, and be-
fore the retirement of the jury,*^ and requests made before
Ry. Co., 61 Wis. 71. See, also. Buck v. People's St. Ry. & Electric
L. & P. Co., 108 Mo. 179.
40 In Iowa, under a statute providing that, when the argument is
concluded, either party may request Instructions, instructions which
are suhmitted during the opening and only argument made at the
trial cannot be refused as being presented too late. McCaleb v.
Smith, 22 Iowa, 242. In Oregon, requests should be presented be-
fore conclusion of the argument. Sterling Organ Co. v. House, 25
W. Va. 65; Carney v. Barrett, 4 Qr. 171. In South Carolina, under
rule of court, requests should be presented before the argument,
but at the close of the argument either counsel may present such
"additional 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 instructions
they may offer, before the argument is closed, to the jury, does not
operate where the cause is submitted without argument." Tinney
v. Endicott, 5 Cal. 102. Where no request for instructions is made
in writing before the closing argument, as required by a rule of
court, a special leave to present requests later cannot be implied
from "a postponement of discussion of a question raised on' evidence
to the arguments." In re Keohane (Mass.) 60 N. E. 406.
46 Donahue v. Coleman, 49 Conn. 464; Pitch v. Belding, 49 Conn.
469; Shartle v. City of Minneapolis, 17 Minn. 308 (Gil. 284) ; Schuhle
V. Cunningham, 14 Daly, 404, 13 N. Y. St. Rep. 81; Posey v. Patton,
109 N. C. 455; Marsh v. Richardson, 106 N. C. 539; Powell v. Wil-
mington & W. R. Co., 68 N. C. 395; Flint v. Nelson, 10 Utah, 261;
United States v. Gilbert, 2 Sumn. 21, Fed. Cas. No. 15,204. See
Billings V. McCoy, 5 Neb. 187. Compare Winne v. Brundage, 40
N. Y. Supp. 225.
"Brooks V. State, 96 Ga. 353; Yeldell v. Shinholster, 15 Ga. 189;
Brick V. Bosworth, 162 Mass. 334; People v. Garbutt, 17 Mich. 25;
Pfeffele v. Second Ave. R. Co., 34 Hun (N. Y.) 499; Venable v.
State, 1 Ohio Cir. Dec. 165; Williams v. Miller, 2 Lea (Tenn.) 406.
The request should be made immediately after the close of the
(333)
§ 135 INSTRUCTIONS TO JURIES. [Ch. 13
the general charge have been held to be premature, and there-
fore properly refused.** It is practically a universal rule
that requests, to be in time, must be presented before the
case has been finally submitted to the jury.*^ 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.^° In some cases it has been stated that it is
charge. Boone v. Miller, 73 Tex. 557. "The proper time to present
requests for Instructions is hefore 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." Leydecker v. Brintnall, 158
Mass. 298. "While the practice referred to may be, and undoubt-
edly is, an excellent one, yet it must be apparent to any one that
the charge of the court may itself develop the necessity of coun-
sel's calling the attention 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 court 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 essential has been
overlooked, no practice or rule of that court adopted for mere con-
venience will deprive them of their right to present a request cover-
ing the omission." Crippen v. Hope, 38 Mich. 344.
*8 Chicago Guaranty Fund Life Soc. v. Ford, 104 Tenn. 538; Chesa-
peake, 0. & S. W. R. Co. v. Hendricks, 88 Tenn. 710; Chesapeake,
0. & S. W. R. Co. V. Poster, 88 Tenn. 671; Roller v. Bachman, 5 Lea
(Tenn.) 158. /
isBradstreet v. Rich, 74 Me. 303; Smart v.' White, 73 Me. 332;
Phillips' Case, 132 Mass. 233; Watson v. Race, 46 Mo. App. 546;
Garrity v. Higgins, 177 Mass. 414; State v. Engeman (N. J. Law)
23 Atl. 676; State v. Barbee, 92 N. C. 820; Davis v. Council, 92
N. C. 725; Stanton v. Bannister, 2 Vt. 464; Wetherby v. Poster, 5
Vt. 136; Williams v. Com., 85 Va. 607; Jarrett v. Stevens, 36 W-,
Va. 445; TuUy v. Despard, 31 W. Va. 370. "An instrucUon asked
after the rendition of the verdict is not in apt time, and may ba
disregarded." Davis v. Council, 92 N. C. 725.
S8 Tlnkham v. Thomas, 34 N. Y. Super. Ct. 236; Tully v. Despard,,
31 W. Va. 2170. "A case on appeal stated in substance that, t^erj
(334)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 136
sever too late to present requests until the jury have re-
tired.^^ In some cases it is proper for the court to give ad-
ditional instructions to the jury after they have retired.
This sulyect is considered in a separate chapter.^^
§ 136. Same — ^Digest of decisions.
Where counsel, at the "conclusion of the trial, handed to the
court fifty-eight written instructions, occupying twenty pages, it
was not incumbent upon the judge to stop the progress of the
trial for their examination, and they were properly refused."
Anderson v. Parker, 6 Cal. 197. "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 attention of the
court may be called to the point omitted." Yeldell v. Shinholster,
15 Ga. 189. "It is not proper for counsel to interrupt the court,
while charging the jury, for the purpose of asking for other in-
struction to them; but it is proper, after the charge is closed,
to call the attention of the court to a point omitted, and on which
the charge should have been given," and, having done so, counsel
may Insist, on the recall of the jury for further instruction, that
a charge be given on the point omitted. Yeldell v. Shinholster,
15 Ga. 189. A request for written instructions, made during the
concluding argument, is too late. Atchison, T. & S. F. R. Co. v.
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 be desired 'to ask the court to make some charge
* * ", — to charge the jury in certain respects.' The court re-
fused to hear the requests." It was held "that It was the right
of the counsel to present his requests; that, while these rights
might be forfeited by the omission of counsel to speak in time, and
the court had lairge discretion in this respect, here it was not ex-
ercised; 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. Y. 479.
51 Brooks V. State, 96 Ga. 353; Crippen v. Hope, 38 Mich. 344.
See, also, Billings v. McCoy, 5 Neb. 187.
»2 See infra, chapter 17, "Reinstructing Jury after Retiring." •
(335)
§ 136 INSTRUCTIONS TO JURIES. [Ch. 13
Franklin, 23 Kan. 74. "It is a perfectly legitimate and usual prac-
tice to offer a prayer involving the right of the plaintiff to recover
on the case made by him before any proof is offered by the de-
fendant; and if, as in the present case, the court below erroneously
grant the defendant's prayer, and the judgment Is reversed on, ap-
peal, it would often be doing the greatest injustice if the court
should enter final judgment, thereby depriving the defendant of
the privilege of offering any evidence." In the absence of any
rule of the court below requiring all the testimony on both sides
to be offered before any prayer is made to the court, the appel-
late court cannot assume that the defendant did not intend to
offer any proof, in the event of his want of success in his prayer
to the court. Howard v. Carpenter, 22 Md. 249. 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 prevail; and it is still more obvious that,
if the right to present requests for rulings is to be an aid in the
administration of justice, the court must have an opportunity to
consider the requests which are made. We do not see sufficient
reason for disturbing 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 bur-
den 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.
Until defendant has announced that he rests his case, he cannot
insist upon the court's instructing the jury. Morley v. Liverpool
& L. & G-. Ins. Co., 85 Mich. 210; Denman v. Johnston, 85 Mich.
387; Hinchman v. Weeks, 85 Mich. 535; Clow v. Plummer, 85
Mich. 550; Kelso v. Woodruff, 88 Mich. 299. "The court may, after
argument begun by counsel for the defendant, give additional in-
structions, or modify those already given, at the request of the
district attorney." Wood v. State, 64 Miss. 761. While requests
should properly be presented to the court before the general charge,
there is no rule of practice which absolutely precludes counsel from
asking additional instructions after the general charge to the jury;
and where the instruction asked is material, and is intended to
supply omissions in the general charge which counsel did not
anticipate, it is error to refuse to give it. Gallagher v. McMuIlen,
7 ApP- Div. (N. Y.) 321. Even after the judge has instructed the
(336)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 137
jury, it is error to refuse to attend to further requests, on the ground
that counsel had already, in pursuance to the direction of the
court, presented their requests. PfefEele v. Second Ave. R. Co., 34
Hun (N. Y.) 497. 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, although, after asking for them, the
jury is given additional instructions by the judge. State v. Barbee,
92 N. C. 820; State v. Rowe, 98 N. C. 629. 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 premature,
and opposes the well-settled rules of practice. Richmond & M. R.
Co. V. Humphreys, 90 Va. 425. 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. In Vermont, the rule
of practice requires that any special requests to charge should Be
■presented to the court by the opening of the argument for the
party making the requests. Vaughan v. Porter, 16 Vt. 266; Cady
V. Owen, 34 Vt. 598; Wilmot v. Howard, 39 Vt. 455.
IV. Form and Sufficiency of Request.
§ 137. Correctness in form and substance.
The form and sufficiency of instructions have been consider-
ed in several of the preceding chapters of this work. Requests
for instructions must conform to the rules there stated. In or-
der to entitle a party to insist that a requested instruction be
given to the jury, such instruction must be correct 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 er-
ror.**^ A party cannot complain that the court did not, of its
»3 Johnson v. King, 20 Ala. 270; Long v. Rodgers, 19 Ala. 321;
Miller v. State, 107 Ala. 40; Barnes v. State, 103 Ala. 44; People
V. Harlan, 133 Cal. 16; Condift v. Kajisas City, Ft. S. & G. R. Co.,
45 Kan. 256; Dickson v. Randal, 19 Kan. 214; Douglas v. Wolf,
(337)
22 — Ins. to Juries.
g 137 INSTRUCTIONS TO JURIES. [Ch. 13
own motion, modify and correct the request, and then give it
as corrected. No such duty rests upon the court.** Where a
part only of a requested instruction is erroneous, the whole
6 Kan. 88; Western Union Tel. Co. v. Getto-McCIung Boot & Shoe
Co., 9 Kan. App. 863; Chicago, R. I. & P. Ry. Co. v. Clough, 134
111. 586; 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; Duley v. Kelley, 74 Me. 556; Clintsman v.
Alfred J. Brown Seed Co. (Mich.) 86 N. W. 797; Hodges v. Cooper,
43 N. Y. 216; Hollywood v. People, 3 Keyes (N. Y.) 55, 2 Abb. Dec.
376; Wright v. Paige, 3 Keyes (N. Y.) 581; Walker v. Gilbert, 2
Daly (N. Y.) 80; Brignoli v. Chicago & G. E. Ry. Co., 4 Daly (N.
Y.) 182; People v. Holmes, 6 Park. Cr. R. (N. Y.) 25; Keller v.
New York Cent. R. Co., 24 How. Pr. (N. Y.) 172; Bagley v. Smith,
10 N. Y. 489; Hayden v. Wheeler & Tappan Co., 66 Hun, 629, 20
N. Y. Supp. 902; Baltimore & 0. R. Co. v. Schultz, 43 Ohio St. 270;
Ratcliff V. Baird, 14 Tex. 43; Underwood v. Hart, 23 Vt. 120;
Vaughan v. Porter, 16 Vt. 266; Fenelon v. Butts, 53 Wis. 344; Vio-
lett V. Patton, 5 Cranch (U. S.) 142; Brooks v. Marbury, 11 Wheat.
(U. S.) 78; Buck V. Chesapeake Ins. Co., 1 Pet. (U. S.) 151; Elliott
V. Piersol's Lessee, 1 Pet. (U. S.) 328; Columbian Ins. Co. v. Law-
rence, 2 Pet. (U. S.) 25; Patterson v. Jenks, 2 Pet. (U. S.) 216;
Scott's Lessee v. Ratliffe, 5 Pet. (U. S.) 81; Winn v. Patterson, 9
Pet. (U. S.) 663; United States v. Metropolis Bank, 15 Pet. (U.
S.) 377; Catts v. Phalen, 2 How. (U. S.) 376; Haffln v. Mason, 15
Wall. (U. S.) 671.
n^Callan v. McDaniel, 72 Ala. 96; Savery v. Moore, 71 Ala. 236;
City Nat. Bank of Selma v. Burns, 68 Ala. 267; Farrish v. State,
«3 Ala. 164; Duvall v. State, 63 Ala. 12; Dotson v. State, 62 Ala!
141; Green v. State, 59 Ala. 68; Leach v. Bush, 57 Ala. 145; Cald-
well V. Parmer's Adm'r, 56 Ala. 405; McWilliams v. Rodgers, 56 Ala.
87; Swallow v. State, 22 Ala. 20; Rives v. McLosky, 5 Stew. & P.
(Ala.) 330; Carmiohael v. Brooks, 9 Port. (Ala.) 330; Morrison v.
Wright, 7 Port. (Ala.) 67; Blackmore v. Neale, 15 Colo. App. 49;
Rolfe v. Rich, 149 111. 436, affirming 46 111. App. 406; Vanlan'ding-
ham V. Huston, 4 Gilm. (111.) 125; Coney v. Pepperdine, 38 111.
App. 403; Louisville, N. A. & C. Ry. Co. v. Shanks, 132 Ind. 395;
Rogers V. Leyden, 127 Ind. 50; Hosier v. StoU, 119 Ind. 244; Rick-
etts V. Harvey, 106 Ind. 564; Over v. Schiffling, 102 Ind. 191; Good-
win V. State, 96 Ind. 550; Toops v. State, 92 Ind. 13; Goodwlne v
(338)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 137
may be properly refused,^^ especially in jurisdictions where
the court is required to give instructions in the exact words in
State, 5 Ind. App. 63; Howlett v. Dilts, 4 Ind. App. 23; Kluse v.
Sparks, 10 Ind. App. 444; Keenan v. Missouri State Mut. Ins. Co.,
12 Iowa, 126; Morrison v. Myers, 11 Iowa, 538; Grimes t. Martin,
10 Iowa, 347; Tifield v. Adams, 3 Iowa, 487; Kansas Ins. Co. v.
Berry, 8 Kan. 159; Clarke v. Baker, 7 J. J. Marsh. (Ky.) 197;
Maryland Ins. Co. v. Bathurst, 5 Gill & J. (Md.) 159; Garvey v.
Wayson, 42 Md. 178; Baltimore & O. R. Co. v. Resley, 14 Md, 424;
Dempsey v. Reinsedler, 22 Mo. App. 43; Mitchell v. Charleston Light
& Power Co., 45 S. C. 146; Missouri Pac. Ry. Co. v. Cullers, 81 Tex.
382; Rosenthal v. Middlebrook, 63 Tex. 333; Brownson v. Scanlan,
59 Tex. 222; Wells v. Barnett, 7 Tex. 584; Hardy v. De Leon, 5 Tex.
211; Galveston, H. & S. A. Ry. Co. v. Schrader, 1 White & W. Civ.
Cas. Ct. App. (Tex.) § 1147; Pfeuffer v. Wilderman, 1 White & W.
Civ. Cas. Ct. App. (Tex.) § 1171; Rosenbaums v. Weeden, 18 Grat.
(Va.) 785; Kincheloe v. Tracewells, 11 Grat. (Va.) 587; Gas Co. v.
Wheeling, 8 W. Va. 371; Henry v. Davis, 7 W. Va. 715; Smith v.
Carrington, 4 Cranch (U. S.) 62; Catts v. Phalen, 2 How. (U. S.)
382.
65 Preston v. Dunham, 52 Ala. 217; Baker v. State, 49 Ala. 350;
Slater v. Carter, 35 Ala. 679; Long v. Rodgers, 19 Ala. 321; Stan-
ton V. State, 13 Ark. 317; Marriner v. Dennison, 78 Cal. 202; Gar-
lick V. Bowers, 66 Cal. 122; Smith v. Richmond, 19 Cal. 476; Thomp-
son V. Paige, 16 Cal. 77; Charter v. Lane, 62 Conn. 121; State v.
Stanton, 37 Conn. 423; Marlborough v. Sisson, 23 Conn. 44; Wooten
V. State, 24 Pla. 355; City of Atlanta v. Buchanan, 76 Ga. 585;
Urquhart v. Leverett, 69 Ga. 92; Denman v. Bloomer, 11 111. 177;
McCammon v. Cunningham, 108 Ind. 545; Christian v. State, 7 Ind.
App. 417; State v. Cassady, 12 Kan. 551; Kansas Ins. Co. v. Berry,
8 Kan. 159; Mayberry v. Kelly, 1 Kan. 116; Douglas v. Wolf, 6 Kan.
88; Tower v. Haslam, 84 Me. 86; Snow v. Penobscot River Ice Co.,
77 Me. 55; Grand Trunk Ry. Co. v. Latham, 63 Me. 177; State v.
Cleaves, 59 Me. 298; Bryant v. Crosby, 40 Me. 9; Atkinson v. Snow,
30 Me. 364; Tibbetts v. Baker, 32 Me. 25; Inhabitants of Thomaston
V. Inhabitants of Warren, 28 Me. 289; Doyle v. Commissioners of
Baltimore County, 12 Gill & J. (Md.) 484; Gray v. Crook, 12 Gill &
J. (Md.) 236; Kettlewell v. Peters, 23 Md. 316; Birney v. New York
& W. Printing Telegraph Co., 18 Md. 341; Budd v. Brooke, 3 Gill
(Md.) 198; Whiteford v. Burckmyer, 1 Gill. (Md.) 127; Baltimore
& 0. R. Co. V. Resley, 7 Md. 297; Preston v. Leighton, 6 Md. 88;
(339)
§ 137 INSTRUCTIONS TO JURIES. [Ch. 13
which they are requested.''® Where special requests to charge
are asked as a series, if any one of such requests is bad or im-
proper the court may refuse them all.®'' A request containing
Stewart v. Spedden, 5 Md. 433; Bond v. Corbett, 2 Minn. 248; Cast-
ner v. The Dr. Franklin, 1 Minn. 73 (Gil, 51) ; Doe d. Martin v.
King's Heirs, 3 How. (Miss.) 125; Dickson v. Moody, 2 Smedes &
M. (Miss.) 17; Lail v. Pacific Exp. Co., 81 Mo. App. 232; State v.
Anderson, 4 Nev. 265; Wright v. Paige, 36 Barb. (N. Y.) 438; New-
man V. Cordell, 43 Barb. (N. Y.) 448; Keller v. New York Cent.
R. Co., 24 How. Pr. (N. Y.) 172; Doughty v. Hope, 3 Denio (N. Y.)
594; Gardner v. Clark, 17 Barb. (N. Y.) 538; Halsey v. Rome, W.
& O. R. Co., 12 N. Y. St. Rep. 319; Vanderbilt v. Brown, 128 N.
C. 498; People v. Holmes, 6 Park. Cr. Rep. (N. Y.) 25; Eckels v.
State, 20 Ohio St. 508; Inglebright v. Hammond, 19 Ohio, 337;
Walker v. Devlin, 2 Ohio St. 593; State v. Tarrant, 24 S. C. 593;
Carter v. Columbia & G. R. Co., 19 S. C. 28; Gunter v. Graniteville
Mfg. Co., 15 S. C. 454; Ragsdale v. Southern R. Co. (S. C.) 38
S. B. 609; East Tennessee, V. & G. R. Co. v. Gurley, 12 Lea (Tenn.)
46; East Tennessee, V. & G. R. Co. v. Fain, 12 Lea (Tenn.) 35;
Sommers v. Mississippi & T. R. Co., 7 Lea (Tenn.) 205; Hills v.
Goodyear, 4 Lea (Tenn.) 233; Brownson v. Scanlan, 59 Tex. 222;
Lanyon v. Edwards (Tex. Civ. App.) 26 S. W. 524; Hardy v. De
Leon, 5 Tex. 211; Houston & T. C. Ry. Co. v. Kelley, 13 Tex. Civ.
App. 1; Dallas Consolidated Traction Ry. Co. v. Hurley, 10 Tex.
Civ. App. 246; Underwood v. Hart, 23 Vt. 120; Brooke v. Young,
3 Rand. (Va.) 106; Sterling v. Ripley, 3 Chand. (Wis.) 166, 3 Pin.
155; Stucke v. Milwaukee & M. R. Co., 9 Wis. 202; Catts v. Phalen,
2 How. (U. S.) 376, 11 L. Ed. 306; Monarch Cycle Mfg. Co. v. Royer
Wheel Co., 44 C. C. A. 523, 105 Fed. 324.
56 United States Life Ins. Co. v. Lesser, 126 Ala. 568; Stanton v.
State, 13 Ark. 317; Castello v. Landwehr, 28 Wis. 522; LyIe v. Mc-
Cormick Harvesting Mach, Co., 108 Wis. 81.
ST Slater v. Carter, 35 Ala. 679; Price v. State, 107 Ala. 161; Hicks
V. Maness, 19 Ark. 701; Williamson v. Tobey, 86 Cal. 497; Smith
V. Richmond, 19 Cal. 476; Marlborough v. Sisson, 23 Conn. 54;
Baker v. Chatfield, 23 Fla. 540; Hunt v. Pond, 67 Ga. 578; Head
V. Bridges, 67 Ga. 228; Grace v. McKinney, 112 Ga. 425; Roberts v.
State, 83 Ga. 369; Atkinson v. Snow, 30 Me. 365; Blumhardt v.
Rohr, 70 Md. 328; Marshall v. Haney, 4 Md. 498; Gr^enway v. Tur-
ner, 4 Md. 296; Bedford v. Penny, 58 Mich. 424; Westchester Fire
Ins. Co. V. Earle, 33 Mich. 143; Sword v. Keith, 31 Mich. 247; Sim-
(340)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § I37
several alternative propositions of law, one of which is incor-
rect, may be refused entirely.^* It has heen held, however,
that where a request to charge, though in form one instruc-
tion, contains in fact several distinct 'and separable proposi-
tions, 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.^® A requested instruction which,
although correct as a proposition of law, is not pertinent to
the issues, may be refused.^" The same is true as to re-
quests for instructions which, under the circumstances, would
be uncertain, ambiguous, or misleading unless qualified or
mons 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);
Consolidated Traction Co. v. Chenowith, 58 N. J. Law, 416; Palmer
V. Holland, 51 N. Y. 416; Magee v. Badger, 34 N. Y. 247; Gutwillig
V. Zuberbier, .41 Hun (N. Y.) 361; Inglebright v. Hammond, 19
Ohio, 337; Fuller v. Coats, 18 Ohio St. 343; Holmes v. Ashtabula
Rapid Transit Co., 10 Ohio Cir. Dec. 638; Hamburg v. Wood, 66
Tex. 168; Burnham v. Logan, 88 Tex. 1; Yarborough v. Weaver, 6
Tex. Civ. App. 215; McWhlrter v. Allen, 1 Tex. Civ. App. 649; Sa-
bine & East Texas Ry. Co. v. Swing, 1 Tex. Civ. App. 531; Pordyce
v. Yarborough, 1 Tex. Civ. App. 260; People v. Thiede, 11 Utah, 241;
Johnston v. Jones, 1 Black (U. S.) 209; Lincoln v. Claflin, 7 Wall.
(U. S.) 132; Harvey v. Tyler, 2 Wall. (U. S.) 328; United States
V. Hough, 103 U. S. 71; Springer v. United States, 102 U. S.. 586;
Worthington v. Mason, 101 U. S. 149; Eastern Trans. Line v. Hope,
95 U. S. 297; Beaver v. Taylor, 93 U. S. 46; Indianapolis & St. L.
R. Co. V. Horst, 93 U. S. 291; Mann Boudoir Car Co. v. Dupre, 4
C. C. A. 540, 54 Fed. 646.
OS Richard v. State (Fla.) 29 So. 413; Boyden v. Fitchburg R.
Co., 72 Vt. 89.
69 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. Contra, Slater v. Carter, 35 Ala. 679.
oowahlgren v. Market St. Ry. Co. (Cal.) 62 Pac. 308; Lamkin
v. Palmer, 164 N. Y. 201, 58 N. E. 123, affirming 24 App. Div. 255.
(341)
g 137 INSTRUCTIONS TO JURIES. [Ch. 13
explained.*' Requests singling out and giving undue prom-
inence to issues, theories, or evidence should he refused. ^^
Argumentative instructions are properly refused.** Where a
requested instruction has heen given, an inconsistent in-
struction asked hy the same party is properly refused, al-
though the latter instruction is in itself correct.** In some
jurisdictions it is held that a request which is properly re-
fused for defects in form or substance may be sufficient to
call the attention of the court to the matter upon which an in-
struction is desired, and make a failure to give an appropri-
ate instruction thereon error.*' The specific instructions de-
sired should be requested, and a mere general request for in-
structions may be disregarded.**
»i Lafayette Ry. Co. v. Tucker, 124 Ala. 514; Adams v. State, 52
Ala. 379; Partridge v. Forsyth, 29 Ala. 200; Dunlap v. Robinson,
28 Ala. 100; Godbold v. Blair, 27 Ala. 592; Rolston v. Langdon, 26
Ala. 661; Southern Ry. Co. v. Lynn (Ala.) 29 So. 573; Swallow v.
State, 22 Ala. 20; Hall v. Hunter, 4 G. Greene (Iowa) 539; Stock-
ton V. Prey, 4 Gill (Md.) 406; Whiteford v. Burckmyer, 1 Gill (Md.)
127; Ohliger v. City of Toledo, 20 Ohio Cir. Ct. R. 142, 10 Ohio Cir.
Dec. 762; Levasser v. Washburn, 11 Grat. (Va.) 572; Kincheloe v.
Tracewells, 11 Grat (Va.) 587.
02 Kenny v. Town of Ipswich (Mass.) 59 N. B. 1007; People v.
Finley, 38 Mich. 482; Thornton's Ex'rs v. Thornton's Heirs, 39 Vt.
122.
68 Singleton v. State, 106 Ala. 49.
eiHealey v. Rupp (Colo.) 63 Pac. 319.
«5 People V. Tapia, 131 Cal. 647; State v. Moore, 160 Mo. 443;
Cleveland v. Empire Mills, 6 Tex. Civ. App. 479; Carpenter v. Dowe
(Tex. Civ. App.) 26 S. W. 1002; Gulf, C. & S. P. Ry. Co. v. Hill
(Tex. Civ. App.) 58 S. W. 255.
66 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 com-
plicated mass of evidence." Kitty v. Fitzhugh, 4 Rand. (Va.) 600.
(342)
Ch. 13] KBQUESTS FOR INSTRUCTIONS. § 138
S 138. Same — Digest of decisions.
Alabama.
"When a party requests charges which, though separately num-
bered, were not separately asked, and any of the charges thus re-
quested are erroneous, the court is not required to distinguish be-
tween the good and the bad, but may refuse them all." Eagle &
P. Mfg. Co. V. Gibson, 62 Ala. 369. "The court never errs in re-
fusing 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 several facts connected with a criminal trans-
action, 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
inferred." Adams v. State, 52 Ala. 379. An incomplete and mean-
ingless request as written may be refused. Hooper v. State, 106
Ala. 41. In a proceeding to contest a will, an instruction that
"the court charges the jury, on behalf of contestants, 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 apparent. Schieffelin v. Schieffelin, 127 Ala. 14.
California.
"In preparing instructions, each party may assume any reason-
able hypothesis in relation to the facts of the case, and ask the
court to declare the law as applicable to it; and it is error to re-
fuse an instruction so framed because the case supposed does not
include some other hypothesis equally rational." People v. Tay-
lor, 36 Cal. 255.
Connecticut.
Request should specify count to which It applies. State v. Stan-
ton, 37 Conn. 423.
Georgia.
A request setting forth a proposition which Is an absurdity is
properly refused, "though it may be manifest that this is the re-
sult of a palpable and unintentional error on the part of counsel
in framing the request." Macon Consolidated St. R. Co. v. Barnes,
113 Ga. 212.
Illinois.
In an action by a broker to recover for losses sustained In the
purchase of rye for future delivery, an instruction that, if the
(343)
§ 138 INSTRUCTIONS TO JURIES. [Ch. 13
methods adopted by plaintiff were too intricate and tortuous to
he explained to the full comprehension of the jury, the verdict
should be for defendant, was properly refused. Wolcott v. Reeme,
44 111. App. 196. "The plaintiif is only obliged to state the
law correctly in his instructions applicable to his theory of the
case, and is not bound, in every instruction, to anticipate and
exclude every possible defense." Mitchell v. MilhoUand, 106 111.
1Y5; Mt. Olive & S. Coal Co. v. Rademacher, 190 111. 538, affirming
92 111. App. 442. An instruction that does not fully and perfectly
state the facts Involved may be refused. Phenix Ins. Co. v. Woland,
48 111. App. 535.
Indiana.
"Instructions which profess to fully state the law upon a par-
ticular subject, but which omit some material fact, essential to the
validity of the hypothesis, may be properly refused." Pennsylvania
Co. V. Weddle, 100 Ind. 138. "The court may refuse an instruction
if satisfied that it is erroneous, although it may have previously
indicated that it would be given." Louisville, N. A. & C. Ry. Co.
V. Hubbard, 116 Ind. 193, citing City of Logansport v. Dykeman,
116 Ind. 15.
Kansas.
"The court is not bound to select the good from bad law in an
instruction asked, especially when it gives the law applicable to
the case otherwise." 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.
Maryland.
"It is no ground for refusing a prayer that a party has asked
of the court less than he was entitled to." Pennsylvania, D. & M.
Steam Nav. Co. v. Dandridge, 8 Gill & J. (Md.) 248. "Where tes-
timony has been offered and received legally insufficient to estab-
lish the issues, or where there is no evidence to establish a mate-
rial fact involved in the issue, the prayer must point out spe-
cifically the defects or omissions in the proof." Hatton v. McClish,
6 Md. 407. See, also, Tyson v. Shueey, 5 Md. 540; Stewart v. Sped-
den, 5 Md. 433. A prayer "that the plaintiff has offered no evidence
upon which to maintain any count of his declaration, there being
a variance between the contract declared on and the contract as
offered in evidence," sufficiently raises the question of variance.
Bull V. Schuberth, 2 Md. 38. A clause in a prayer for rulings,
(344)
Ch. 13J REQUESTS FOR INSTRUCTIONS. § 138
containing the words, "and if the jury shall find all the other
facts assumed in this prayer," would vitiate the prayer, though in
other respects unexceptionable. Augusta Ins, & Banking Co. v. Ab-
bott, 12 Md. 348. "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 of-
fered." Baltimore & O. R. Co. v. Resley, 14 Md. 424. 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.
Michiffan.
In an action to recover for fruit sold, where plaintiff claimed
that he sold to defendant five ca,rloads of potatoes at 25 cents
a bushel, and consigned over 1,800 baskets of grapes, a quantity
of pears, and 4 bushels of apples, under a guaranty price, and that,
after crediting defendant with payments amounting to $950, there
was due him f 177.48, an instruction: "According to the testimony,
there was no direct sale of the fruit in controversy, consisting
of the grapes, pears, and' apples which were shipped to the defend-
ant on consignment. Plaintiff claims that, in the telephone talk
about the grapes, B. assured him that they could make him some
money if he consigned them, and would guaranty that they would
make him a profit; all of which is denied by B. There being no
sale, and defendant never having seen the fruit, these statements,
if actually made, would be regarded only as an expression of con-
fidence, and would not constitute a legal contract of guaranty, upon
which the plaintiff could recover, and he would be entitled only
to the proceeds of sale, less commissions," — is properly refused.
Clintsman v. Alfred J. Brown Seed Co. (Mich.) 86 N. W. 797, 8
Detroit Leg. N. 285. "A request to charge, which begins with a
recital of facts as undisputed, and closes with several propositions
which the court is expected to charge 'upon these undisputed facts,'
must be considered a single request; and if any part of the state-
ment 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. "The omission to give requests for instructions which tend
to distract the jury by calling special attention to metaphysical
siibtleties or particular testimony" is not error. People v. Finley,
oi Mich. 482. A requested instruction that does not state cor-
rectly the facts which it assumes is properly refused. Conely v.
Wood, 73 Mich. 203.
(3*5)
§ 138 INSTRUCTIONS TO JURIES. [Ch. 13
Minnesota.
It Is not error to refuse an Instruction relevant to a question
about ■which there is no dispute. Shartle v. City of Minneapolis, 17
Minn. 308 (Gil. 284).
Missouri.
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. Missouri, K. & T. Ry. Co.,
2 Mo. App. Rep'r, 973, 64 Mo. App. 305.
New Hampshire.
A request for instructions "is properly refused when It does
not state the question with sufficient fullness." Ordway v. Sanders,
58 N. H. 132.
New York.
"Where a party relies upon an exception for refusing to charge
as requested, the request must be perfectly proper as an entirety.
If it embraces a single idea or view which ought not to be pre-
sented, it destroys the value of the exception, although a part
of the legal proposition embraced, if detached and presented sepa-
rately, might be entirely proper." People v. Holmes, 6 Park. Cr. R.
(N. Y.) 25. Points of law and fact upon which the judge is re-
quested to charge, in pursuance of section 1023 of the Code, must
be separately and distinctly stated, — propositions of fact and law
should not be embraced In the same request. Snifflen v. Koechling,
45 N. Y. Super. Ct. 61.
Ohio.
A correct and pertinent statement of law, though abstract,
should be given, if requested. Cleveland, P. & E. R. Co. v. Nixon,
21 Ohio Cir. Ct 736, 12 Ohio Cir. Dec. 79. When an instruc-
tion is prayed for as an entirety, part of which is proper, 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. French v. Millard, 2 Ohio St.
45; Walker v. Devlin's Lessee, 2 Ohio St. 593; Mayberry v. Kelly,
1 Kan. 116. "To constitute error in the refusal of a court to
charge a jury as requested, the proposition requested and refused
must be absolutely true under all reasonably conceivable circum-
stances." Cleveland & P. R. Co. v. Sargent, 119 Ohio St. 438. A
charge predicated on an imperfect statement of the facts and cir-
cumstances bearing on the point to which they were directed is
properly refused, as where, on a question of negligence, charges
(346)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 138
devolved on -the plaintiff the duty of giving notice to the engineer in
charge of the engine. Even if such duty existed, it might be dis-
pensed with in certain cases, and circumstances tending to show that
it was dispensed with are proper to be left to the jury. Jenkins v.
Little Miami R. Co., 2 Disn. (Ohio) 49.
Pennsylvania.
A general prayer for a charge that there is no evidence of a
particular fact is bad practice. Lancaster County Bank v. Albright,
21 Pa. 228. "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. Longstreth, 10 Pa. 145. But compare Hodges
V. Cooper, 43 N. Y. 216.
Texas.
"Counsel desiring additional instructions • ♦ * should pre-
sent them to the court In the very language in which he wants
them given." Heilbron v. State, 2 Tex. App. 538. "That Instruc-
tions asked * * * do not embrace all the law of the case is
no reason for refusing them." Waul v. Hardie, 17 Tex. 553. Since
Rev. St. art. 1321, 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 writ-
ten with the bad, on the same piece of paper, such ground of re-
fusal being stated at the time of refusal. Missouri Pac. Ry. Co.
V. King, 2 Tex. Civ. App. 122. Refused charges should not be given
to the jury with other papers under such a statute; and where "de-
fendant handed the court two special requested charges, Nos. 1
and 2, both written on the same piece of paper," and "the court
gave No. 1, and refused No. 2, and so indorsed them, but handed
both to the jury," and "when he read No. 1 he 'called the at-
tention of the jury especially to the one "refused," as refused,
and told them that they should not consider it,' " and some of
the matter contained in the refused instruction was correct, it was
reversible error to allow the jury to take to their room the instruc-
tion so marked "Refused." Trinity County Lumber Co. v. Denham,
85 Tex. 56. "Where a number of requested charges, which, in so far
as they contained correct propositions, were embodied 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 require-
ment by the court that such of the charges as were correct should
be submitted separately from the others, that such action was
(34V)
g 138 INSTRUCTIONS TO JURIES. [Ch. 13
■within judicial discretion, and that there was no error in refus-
ing to give the charges for the reasons stated in the indorsement
of refusal." Missouri Pac. Ry. Co. v. King, 2 Tex. Civ. App. 122.
All the special charges were presented together to the court, and
constituted different paragraphs of the same paper. The first para-
graph 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 paragraphs, and give
that which was correct, and refuse that which was error. Yar-
borough V. Weaver, 6 Tex. Civ. App. 215. It is not error to refuse
a special charge, correct in its application of law and fact, when
presented with other charges which are objectionable, the whole
being attached together, 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 in-
structions, attorneys 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. Wells v.
Barnett, 7 Tex. 584; Brownson v. Scanlan, 59 Tex. 222; Hamburg
V. Wood, 66 Tex. 168; Missouri Pac. Ry. Co. v. Cullers, 81 Tex.
394; Burnham v. Logan, 88 Tex. 1.
yermont.
A court is never bound to regard written requests to charge, "un-
less they are couched in such terms as to be sound to the full ex-
tent. 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 sound
law, and without any necessary qualification, or it is not error" to
refuse them. Redfield, J., in Vaughan v. Porter, 16 Vt. 266.
Virginia and West Virginia.
In Virginia and West Virginia jt is held that if an Instruction
asked Is equivocal, but is open to a construction by the jury which
would make it a correct rule of law to be applied to the case, a
refusal to give 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 understood by the jury in the proper
sense. Ward v. Churn, 18 Grat. (Va.) 801; Peshine v. Shepperson,
17 Grat. (Va.) 473; Baltimore & 0. R. Co. v. Polly, 14 Grat- (Va.)
(348)
Ch.l3] REQUESTS FOR INBTRUUTIONK. §139
447; Carrico v. West Virginia Cent. & P. Ry. Co., 35 W. Va. 389;
Gas Co. V. Wheeling, 8 W. Va. 371.
§ 139. Written request.
In some jurisdictions, requests for instructions must be
prc'sented in writing, and, if not so presented, their refusal is
not error, though otherwise the instruction is correct.*'' 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 re-
quiring requests to be read; and the fact that a party is in
court at the time instructions are given, and does not call
«7Winslow V. State, 76 Ala. 42; Green v. State, 66 Ala. 40; Tuttle
T. Walker, 69 Ala. 172; South & North Alabama R. Co. v. Seale,
59 Ala. 608; Mayberry v. Leech, 58 Ala. 339; Jacobson v. State,
65 Ala. 151; Crosby v. Hutchinson, 53 Ala. 5; Lyon v. Kent, 45 Ala.
656; Milner v. Wilson, 45 Ala. 478; Broadbent v. Tuskaloosa S. &
A. Ass'n, 45 Ala. 170; Myatts v. Bell, 41 Ala. 222; Hooper v. State,
106 Ala. 41; Bellinger v. State, 92 Ala. 86; Schmidt v. First Nat.
Bank of Denver, 10 Colo. App. 261; Fields v. Carlton, 75 Ga. 556;
Rogers v. Rogers, 74 Ga. 598; Williams v. Gunnels, 66 Ga. 521;
Central R. Co. v. Richards, 62 Ga. 306; Sims v. Jamres, 62 Ga. 260;
Wilson V. First Presbyterian Church of Savannah, 56 Ga. 554; Jack-
son V. Jackson, 47 Ga. 101; Street v. Lynch, 38 Ga. 631; Brown v.
State, 28 Ga. 199; Atlanta Machine Works v. Pope, 111 Ga. 872;
Harding v. Sandy, 43 III. App. 442; Burgett v. Burgett, 43 Ind. 78;
Leeper v. State, 12 Ind. App. 637; Tays v. Carr, 37 Kan. r41; State
V. Pfeiferle, 36 Kan. 96; Douglass v. Geiler, 32 Kan. 499; State v.
Horton, 100 N. C. 443; Marshall v. Stine, 112 N. C. 697; Cleveland,
etc., R. Co. V. Nixon, 12 Ohio Cir. Dec. 79; Williams v. Miller, 2
Lea (Tenn.) 405; Griffin v. Chadwick, 44 Tex. 406; Hobbs v. State,
7 Tex. App. 117; Jones v. Thurmond's Heirs, 5 Tex. 318; Osborne
V. State (Tex. Cr. App.) 56 S. W. 53; Waechter v. State, 34 Tex.
Cr. App. 297; Mills v. Haas (Tex. Civ. App.) 27 S. W. 263; Sparks
V. State, 23 Tex. App. 447.
(349)
§ 141 INSTRUCTIONS TO JURIES. [Ch. 13
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.^*
§ 140. Same — Digest of decisions.
The refusal to grant an oral request to instruct that the jury
shall disregard a remark of opposing counsel is not error. Hard-
ing V. Sandy, 43 111. App. 442. A statute requiring requests to be
in writing is satisfied if the instructions are written with a lead
pencil. Writing in ink is not essential. Harvey v. Tama County,
53 Iowa, 228. "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 he understood, counsel should have complied with
the request. The court is not hound 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 counsel to reduce the modification to writing, and counsel
has failed to do so. A request of this kind is sometimes calculated
to confuse the Judge, and it would not always he safe to change
or modify the written charge upon such a request, as the judge
might misunderstand counsel, or not fully comprehend the modi-
fication desired." Savannah. T. & I. of H. Ry. v. Beasley, 94 Ga.
144.
§ 141. 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.®^ Even where
«
«8Herskovitz v. Baird, 59 S. C. 307.
69 Mason v. Sieglitz, 22 Colo. 320; Orman v. Mannix, 17 Colo. 564;
Schmidt v. First Nat. Bank of Denver, 10 Colo. App. 261; School-
field V. Houle, 13 Colo. 394; Craig v. Frazier, 127 Ind. 286; Glover
V. State, 109 Ind. 391; Childress v. Callender, 108 Ind. 394; State
V. Sutton, 99 Ind. 300; Hunt v. Elliott, 80 Ind. 245; Beatty v. Brum-
mett, 94 Ind. 76; Buchart v. Ell, 9 Ind. App. 353; Collett v. State,
156 Ind. 64; Citizens' St. Ry. Co. v. Hohbs, 15 Ind. App. 610; Con-
(350)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 143
not required, the fact that instructions requested and given
to the 'jury are signed by counsel is not error J"
V. Disposition op Requests.
§ 142. In general.
In passing upon requests to charge, the judge should re-
frain from remarks which might mislead the jury.''^ A re-
duitt v. Ryan, 3 Ind. App. 1; State v. Horton, 100 N. C. 443; Hou&
ton V. Blythe, 60 Tex. 506; Redus v. Burnett, 59 Tex. 576; Texaf
& P. Ry. Co. T. Mitchell (Tex. Civ. App.) 26 S. W. 154; Smith v
Fordyce (Tex.) 18 S. W. 663.
^0 Morisette v. Howard, 62 Kan. 463.
II Biehler v. Coonce, 9 Mo. 347. "The defendant asked the fol
lowing charge: 'If the braces In question [which proved defective]
were fastened with twenty-penny nails or spikes, and the fasten-
ings were reasonably sufficient to * • • guard against any ac-
cident therefrom which was probable, and could have been reason-
ably foreseen, then you will find for the defendant.' The Instruc-
tion 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 properly 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 requested, "the court shall either give
or refuse these charges with or without 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 modifi-
cation is," and a special instruction is requested that "an aggra-
vated assault and battery may be committed by any indecent hand-
ling 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 there-
by." Bradford v. Stote, 25 Tex. App. 723.
Where the court, on being handed requests,, itates 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
(351)
§ 142 INSTRUCTIONS TO JURIES. [Ch. 13
fusal to give an instruction should be made in such a man-
ner as not to mislead the jury as to the cause of the refusal^"
The refusal of an instruction is not equivalent to the asser-
tion of the converse of the proposition contained in it J* It
has been held to be error not to answer directly a point pro-
posed by counsel/* The court should either affirm or deny
also state that he gives the requests in charge to the jury, or that
I such requests are correct. Noble v. Bessemer Steamship Co. (Mich.)
86 N. W. 520, 8 Detroit Leg. N. 244.
'2 State V. McCartey, 17 Minn. 76 (Gil. 54). If the judge refuses
to comply with a request to charge, on the ground that he has al-
ready 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.
T3 Miles V. Davis, 19 Mo. 408; Dempsey v. Reinsedler, 22 Mo.
App. 43.
74Keitt V. Spencer, 19 Fla. 748; Sommer v. Gilmore, 160 Pa. 129;
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; Carpenter v. Mayer, 5 Watts (Pa.) 483; Slaymaker
V. St. John, 5 Watts (Pa.) 27; Geiger v. Welsh, 1 Rawle (Pa.) 349;
Tenbrooke v. Jahke, 77 Pa. 392; Hood v. Hood, 2 Grant, Cas. (Pa.)
229; Noble v. McClintock, 6 Watts & S. (Pa.) 58; Crumless v.
Sturgess, 6 Heisk. (Tenn.) 190. "The plaintiff's counsel submitted
a series of points, ten in number, 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 controlling the ques-
tions suggested by the points. We repeat what was said by our
Brother Paxson in Huddleston v. Borough of West Bellevue, 111
Pa. 122: 'This is a very unsatisfactory way of answering points.
It renders the point of no possible value with the jury, and always
adds greatly to our labors." When such answer lesives the jury
without adequate instruction upon the questions presented by the
(352)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 142
a well-constructed point submitted. ''^ It is not necessary,
however, to affirm or deny the points separately.'* It is er-
ror to evade a direct answer by telling the jury to be directed
by the evidence before them. This is no instruction at all.'''
"Points or requests for charge are statements of the rules or
particular portions of the law which counsel deem applicable
to the special facts of the case. Their use is, iirst, to direct-
the attention of the judge to the view of the law which the
parties desire him to take, and, secondly, thereby to have the
jury instructed upon the principles which they ought to ap-
ply in making up their verdict, after they have ascertained
the facts. * * * Where, upon the whole case, the judge
conceives it his duty to give the jury a binding instruction,
the answers to points become mere dissertations on the law,
useless to the jury, unnecessarily burdensome to the judge,
and complicating to the record when presented for eonsidera-
tioa here."'* An alteration is equivalent to a refusal.'"
points, it must, if the questions presented are fairly and legiti-
mately raised, be ground for reversal." Duncan v. Sherman, 121
Pa. 530.
70 Awank v. Phillips, 113 Pa, 482. A party is entitled to an an-
swer which is Intelligible to the jury. Mills v. Buchanan, 14 Pa. 59.
T Com. V. Cleary, 135 Pa. 64, 26 Wkly. Notes Cas. 137. If the
judge's charge contains a sufficient answer to the points, it is §nough,
although they are not answered separately. Patterson v. Kountz,
63 Pa. 246.
"Waynesboro Mut. Fire Ins. Co. v. Creaton, 98 Pa. 451. Where
the court is asked to charge what would be the legal effect of cer-
tain findings of fact, the answer must be responsive, and it ia
error to merely state that the jury must find the facts from all
the evidence. Cross v. Tyrone Min. & Mfg. Co., 121 Pa. 387; Kraft
V. Smith, 117 Pa. 183.
'8 Myers v. Kingston Coal Co., 126 Pa. 582, 24 Wkly. Notes Cas.
223.
'sPensacola & A. R. Co. v. Atkinson, 20 Fla. 450. A charge not
given substantially as requested is to be regarded as refused. Mc-
Hugh V. State, 42 Ohio St. 154.
(353)'
23 — Ins. to Jurlei. '
I 142 INSTRUCTIONS TO JURIES. Ch. 13
Where the court is evenly divided in opinion as to a prayer,
it is to be regarded as refused.^" An accidental omission
to give a requested instruction has the same effect as a re-
fusal.*^ Instructions requested and refused need not be read
to the jury.*^ ISTor need the court tell the jury "that it had
received them, or that it charged or refused to charge
them."*^ An instruction need not be given as a requested
instruction,** 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.^^ It is not improper to submit a
request for instructions to the opposing counsel for examina-
tion and discussion before action on it.*^ Where the court, in-
stead of giving, or refusing certain requested instructions, told
the jury that they might "use them as far as the same are prac-
ticable in arriving at a verdict," it was error, because it left
the jury to decide whether the requested instructions were
correct or not.*^ 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.** It
is sufficient if the law is given in a charge so plainly that the
80 Michael v. Schroeder, 4 Har. & J. (Md.) 227; Smith T. Gilmor,
4 Har. & J. (Md.) 177.
81 State V. MoNamara, 3 Nev. 70.
82 Stewart v. Mills, 18 Pla. 57.
83 Soper Lumber Co. v. Halsted & Harmount Co., 73 Conn. 547.
84 Anderson v. City of Bath, 42 Me. 346.
86Barkman v. State, 13 Ark. 706; Long v. State, 12 Ga. 293. A
party cannot complain that correct instructions requested by his
adversary are given In connection with instructions requested by
himself. Robertson v. Parks, 76 Md. 118.
86 Bast Tennessee, "V. & G. R. Co. v. Gurley, 12 Lea (Tenn.) 46.
87 Duthie v. Town of Washburn, 87 Wis., 231.
88 Dillon v. McRae, 40 Ga. 107; East Tennessee, V. & G. R. Co.
V. Fain, 12 Lea (Tenn.) 35. Compare Leaptrot v. Robertson, 44
Ga. 50.
(354)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 143
jury have no diflSculty in understanding it, whether it is re-
peated in their hearing by the judge himself, or read by an-
other, and sanctioned by him as read.^^ Where a requested
instruction is handed the court, it will be sufScient for the
court to read it to the jury, and say, "I give you that in
charge j"®" or that it is the law f^ or to state approval of it,
without using any formal mode of statement.®^ If, how-
ever, 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 instruc-
tions announced as given, without first reading them to the
jury.**
§ 143. Marking instructions "Given" or "Refused."
The charge of the court, given of its own motion, need
not be marked by the court.®* Under a statutory provision
which requires the court to mark the word "Given" on in-
structions given, and the word "Refused" on instructions
refused, it has been held that "an instruction or a series of
instructions headed, 'Instructions given by the court on its
own motion,' and so placed in the record as to be clearly
separate and distinguishable from the instructions presented
by the parties," will suffice. The word "Given" need not
be marked on instructions given by the court of its own mo-
tion.®^ So, where several instructions were asked, written
on sheets of paper fastened at the top and on the margin of
89 Dillon V. McRae, 40 Ga. 107.
so Peagan v. Cureton, 19 Ga. 404.
»i Long V. State, 12 Ga. 293.
03 State v. Stewart, 26 S. C. 125.
osVeneman v. McCurtaln, 33 Neb. 643; McDuffie v. Bentley, 27
Neb. 380; State v. Missio, 105 Tenn. 218. .
»* People V. Samsels, 66 Cal. 99.
86 Glllen v. Riley, 27 Neb. 158.
(355)
§ 143 INSTRUCTIONS TO JURIES. [Ch. 13
the first sheet, and the court wrote, "Instructions one to
seven all refused," this was held a sufficient compliance with
the statute.** Where the record shows that a series of in-
structions requested were actually refused, the mere failure
to mark each instruction "Eefused" is not reversible error.*^
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.** The
principal object of a statute requiring the judge to mark on
the instruction "Given" or "Refused" is to avoid disputes
as to what instructions wer« 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."*" If an instruction is refused merely because
the substance thereof has already been given, advantage can-
not be taken, upon appeal, of the fact that the court simply
marked "Eefused" on the instruction, without stating the
ground of refusal.^"" Where the court writes "Held" on an
instruction, in compliance with the statute, the addition of
an explanation that the instruction was not warranted by
the evidence does not amount to a refusal.^"^ The indorse-
ment by the court, upon a requested instruction, that it "did
not consider and pass upon said proposition because 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.*"^ Where the court
8« Harvey v. Tama County, 53 Iowa, 228.
»7 McDonald v. Fairbanks; Morse & Co., 161 111. 131.
98 Lawrenceville Cement Co. v. Parker, 60 Hun (N. Y.) 586.
»» Territory v. Baker, 4 N. M. (Gild.) 236, 4 N. M. (Johns.) 117.
100 People V. Douglass, 100 Cal. 1.
101 Flower V. Beveridge, 161 111. 53, affirming 58 111. App. 431.
102 Moore v. Sweeney, 28 111. App. 547; appeal dismissed, 128 III.
204.
(356)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 144
marked a requested instFUction, "ITot given; given in in-
struction 37. M"., Judge," and he also drew his pencil through
several of the lines which were typewritten, 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."^
§ 144. Same — Effect of noncompliance with statute.
The provision of the statute that instructions shall be
marked "Given" or "Refused" is merely directory, and fail-
ure to so mark certain instructions will not work a reversal,
where the record shows that they were actually given or re-
fused, and consequently no harm can have resulted from fail-
ure to obey the statute.^"* 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 "Re-
fused," and they are not given to the jury, when such in-
structions announce correct principles of law, and have not
already been given in substance, the effect is precisely the
103 People V. Shears (Cal.) 65 Pac. 295.
104 Daxanbeklav v. People, 93 111. App. 553; Harrlgan v. Turner,
65 111. App. 470; McDonald v. Fairbanks, Morse & Co., 161 111. 124;
McKenzie v. Remington, 79 111. 388; Tobin v. People, 101 111. 123;
St. Louis, A. & T. H. R. Co. v. Hawkins, 39 111. App. 406; Frame
V. Murphy, 56 111. App. 555; Cook v. Hunt, 24 111. 550; Washington
V. State, 106 Ala. 58. Where the court fails to mark a request as
either "Given" or "Refused," but materially modifies it, and gives
It, as modified, as coming from one of the parties, it is reversible
error. Peart v. Chicago, M. & St. P. Ry. Co., 8 S. D. 431. See, also,
Galloway v. McLean, 2 Dak. 372.
(357)
§ 145 INSTRUCTIONS TO JURIES. [Ch. 13
same as if the instructions had been formally marked "Re-
fused," and is a ground for reversal.^"® So it has been held
in another case that, "although the presiding judge does not
write 'Given' or 'Refused' 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."^"® There are, however, a number of decisions
in many jurisdictions which hold that, unless instructions are
marked "Given" or "Refused," 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 instructions.-"'"
That the trial court gave or refused instructions is not proven
by the indorsements "Given" and "Refused" on papers sent
up, it not appearing who made the indorsements, nor by alle-
gations made in motion for new trial.-"^"^
§ 145. Necessity of giving requested instructions.
Where the court is requested, in apt and proper time, to
give certain instructions to the jury, and such instructions
are correct in form and substance, and applicable to the law
and facts of the case, it is the duty of the court to give such
instructions, and a failure to do so is reversible error.-"'^
105 Calef V. Thomas, SI 111. 486.
i«6 Liltle V. Slate, 58 Ala. 265.
107 Cadwallader v. Blair, 18 Iowa, 421; Thompson v. Chumney, 8
Tex. 394; Jones v. Buzzard, 2 Ark. 415.
108 Jones V. Buzzard, 2 Ark. 415. See, generally, post, c. 32,
"Appellate Review of Instructions."
109 Harvey v. State, 125 Ala. 47; Sperry v. Spaulding, 45 Cal. 544;
Emerson v. Santa Clara Co., 40 Cal. 543; People v. Taylor, 36 Cal.
255; Kinkle v. People, 27 Colo. 459; Morris v. Piatt, 32 Conn. 75;
Keitt V. Spencer, 19 Fla. 748; Baker v. State, 17 Fla. 406; Central
of Georgia Ry. Co. v. Bond, 111 Ga. 13; Simms v. Floyd, 65 Ga. 719;
(358) .
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 145
The fact that in criminal cases the jury are the judges o£
both the law and the facts will not justify the court in re-
fusing to instruct the jury on the law of the case, when
Fugh V. McCarty, 44 Ga. 383; Chastain v. Robinson, 30 Ga. 55;
Terry v. State, 17 Ga. 204; Davis v. State, 10 Ga. 101; Stearns v.
Reidy, 18 III. App. 582; Cohen v. Schick, 6 III. App. 280; Lender
Y. People, 6 III. App. 98; State v. Wilson, 2 Scam. (III.) 225; Ben-
nett V. Connelly, 103 HI. 50; Bowman v. Wettig, 39-111. 416; Fisher
V. Stevens, 16 111. 397; Chicago W. D. Ry. Co. v. Haviland, ^ 111.
App. 561; Suttle v. Finnegan, 86 111. App. 423; Jared v. Goodtitle,
1 Blackf. (Ind.) 29; Taylor v. Hillyer, 3 Blackt (Ind.) 433; 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; Spaulding v. Adams, 63 Iowa, 437; Prichard v. Hopkins,
52 Iowa, 120; Muldowney v. Illinois Cent. R. Co., 32 Iowa, 176;
State V. Gibbons, 10 Iowa, 117; Dickinson v. Beal (Kan. A'pp.) 62
Pac. 724; Reading v. Metcalf, Hardin (Ky.) 544; Bell v. North, 4
Lltt. (Ky.) 133; Owings v. Trotter, 1 Bibb (Ky.) 157; State v.
Tucker, 38 La. Ann. 789; Anderson v. City of Bath, 42 Me. 346; Lap-
ish V. Wells, 6 Me. 175; Wells v. Turner, 16 Md. 133; Union Bank
of Maryland v. Kerr, 7 Md. 88; Coffin v. Coffin, 4 Mass. 25; People
v. Jacks, 76 Mich. 218; Cooper v. Mulder, 74 Mich. 374; O'Callaghan
V. Boeing, 72 Mich. 669; Babbitt v. Bumpus, 73 Mich. 331; Hartford
Fire Ins. Co. v. Raynolds, 36 Mich. 502; Nichols v. State, 46 Miss.
284; First Nat. Bank of Madison v. Carson, 30 Neb. 104; Gilbert
V. Merriam & Roberson Saddlery Co., 26 KJa. 194; Skinner v.
Majors, 19 Neb. 453; Billings v. McCoy, 5 Neb. 188; Comstock
V. Dodge, 43 How. Pr. (N. Y.) 97; Pfeffele v. Second Ave. R. Co., 34
Hun (N. Y.) 499; Schaefer v. Metropolitan St. Ry. Co., 34 Misc.
Rep. 554, 69 N. Y. Supp. 980; Kearns v. Brooklyn Heights R. Co.,
60 App. Dlv. (N. Y.) 631; Brockman v. Metropolitan St. R. Co.,
32 Misc. Rep. 728; Foster v. People, 50 N. Y. 601; State v. Gilmer,
97 N. C. 429; State v. Gaskins, 93 N. C. 547; State v. Christmas,
51 N. C. 471; Lytle v. Boyer, 33 Ohio St. 506; Cleveland, P. & E.
R. Co. v. Nixon, 21 Ohio Cir. Ct. R. 736, 12 Ohio Cir. Dec. 79; Jones
V. State, 20 Ohio, 46; Lewis v. State, 4 Ohio, 389; Bellas v. Hays,
5 Serg. & R. (Pa.) 427; ShaefiEer v. Landis, 1 Serg. & R. (Pa.) 449;
Hamilton v. Menor, 2 Serg. & R. (Pa.) 70; Vincent v. Huff, 4 Serg.
6 R. (Pa.) 298; Humes v. McFarlane, 4 Serg. & R. (Pa.) 427;
Pedan v. Hopkins, 13 Serg. & R. (Pa.) 45; Bemus v. Howard, 3
Watts (Pa.) 255; Robeson v. Gibbons, 2 Rawle (Pa.) 45; Pennsyl-
vania R. Co. V. Zebe, 33 Pa. St. 318; Belmont Church v. Devine, 28
(359)
§ 145 INSTRUCTIONS TO JURIES. [Cji. 13
properly requested."" It is the privilege of a party to raise
any question of law arising out of the facts, and to denjand
the opinion of the court distinctly upon it ; and the opposite
party has the equal privilege of asking an opinion upon ad-
ditional facts, not embraced -in the hypothesis of his ad-
versary's prayer, but not of controlling or modifying that
Leg. Int. (Pa.) 85; Hughes v. Boyer, 9 Watts (Pa.) 556; McGavock
V. "Wftird, Cooke (Tenn.) 405; Balrd v. Trimble's Lessee, Cooke
(Tenn.) 289; Souey v. State, 13 Lea (Tenn.) 472; Kendrlck v.
Cisco, 13 Lea (Tenn.) 251; Lawrence v. Hudson, 12 Heisk. (Tenn.)
671; Johnson v. McCampbell, 11 Heisk. (Tenn.) 28; Wilson v. Smith,
5 Yerg. (Tenn.) 379; Williams v. Norwood, 2 Yerg. (Tenn.) 329;
Gann v. State (Tex. Cr. App.) 57 S. W. 837; Coyle v. McNabb (Tex.
App.) 18 S. W. 198; Pumell v. Gandy, 46 Tex. 190; Norwood v.
Boon, 21 Tex. 592; Washburn v. Tracy, 2 D. Chip. (Vt.) 128; Brain-
ard V. Burton, 5 Vt. 97; Eastman v. Curtis, 67 Vt. 432; Woinack v.
Circle, 29 Grat. (Va.) 208; Baltimore & O. R. Co. v. Polly, 14 Grat
(Va.) 447; Wells v. Washington's Adm'r, 6 Munf. (Va.) 532;
Brooke v. Young, 3 Rand. (Va.) 106; Picket v. Morris, 2 Wash. (Va.)
255; Gordon v. City of Richmond, 83 Va. 436; McGee v. Wineholt
(Wash.) 63 Pac. 571; Riley v. West Virginia Cent. & P. Ry. Co.,
27 W. Va. 147: Sailer v. Barnousky, 60 Wis. 169; Campbell v.
Campbell, 54 Wis. 90; Roberts v. McGrath, 38 Wis. 52; Wheeler
V. Konst, 46 Wis. 398; Tupper v. Huson, 46 Wis. 646; Conners v.
State; 47 Wis. 523; Rogers v. Brightman, 10 Wis. 55; Thorwegan
V. King, 111 U. S. 549; Livingston v. Maryland Ins. Co., 7 Cranch
(U. S.) 506; Douglass V. McAllister, 3 Cranch (U. S.) 298; Mullen v.
United States (C. C. A.) 100 Fed. 892; Texas & P. R. Co. v. Rhodes, 30
U. S. App. 561, 18 C. C. A. 9, 71 Fed. 145. 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 request, 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
deductions against either party from objections made and evidence
excluded." 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.
iioLeuder v. People, 6 111. App. 98; Parker v. State, 136 Ind. 284.
(360)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 146
hypothesis.^*^ What is admitted or conceded to be law by
the plaintiff or defendant, as the case may be, is binding up-
on 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.^'"
The right to demand instructions, however, has a limit, and
counsel will not be permitted to abuse the right.'** It is
not error to refuse to give an instruction which would con-
flict with other instructions given at the request of the same
party.***
I 146. Same — As affected by state of evidence.
Where there is any evidence, however slight, to sustain a
legal claim or a legal defense, the party introducing such evi-
dence has a right to have it submitted to the jury by ap-
propriate instructions ; and when an instruction is submitted,
based upon evidence in the case, and stating correctly a prin-
ciple 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 con-
111 Whiteford v. Burckmyer, 1 Gill (Md.) 127; Parkhurst v. North-
ern Cent. R. Co., 19 Md. 472; Birney v. Now York & W. Printing
Telegraph Co., 18 Md. 341. "Where all the facts and circumstances
relating to the subject are admitted, a party has the right to ask
the court to instruct the jury whether the evidence is sufBcient to
establish a waiver or not." Spring Garden Mut. Ins. Co. v. Evans,
9 Md. 1. "After a party has obtained a correct statement of the
law governing a point in the case, he has the right to an applica-
tion of the principle to the facts in evidence, and a declaration from
the court that these facts, if believed by the jury to be established,
call for the application of the principle." Aldrige v. State, 59
Miss. 250.
112 Sittig V. Birkenstack, 35 Md. 273.
lis Fisher v. Stevens, 16 111. 397.
114 Scott V. Texas & P. Ry. Co., 93 Tex. 625, reversing (Tex. Civ.
App.) 56 S. W. 97; Texas & P. Ry. Co. v. Hassell, 23 Tex. Civ. App.
681.
(3C1)
§ 146 INSTRUCTIONS TO JURIES. [Ch. 13
tained in it/^'' as 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.^ ^® "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 in-
ferences of motive and intention to be drawn from the facts,
115 Liner v. State, 124 Ala. 1; Davis v. Russell, 52 Cal, 611; People
v. Taylor, 36 Cal. 255; Cook County v. Harms, 108 111. 153; Missouri
Furnace Co. v. Abend, 107 111. 44; Eames v. Rend, 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; Riedle v. Mulhausen, 20 111. App. 73; Edwards v. Detteh-
maier, 88 111. App. 366; Chicago Heights Land Ass'n v. Butler, 55
111. App. 461; Carpenter v. State, 43 Ind, 371; Conaway v. Shelton,
3 Ind. 334; Tribble v. Frame, 5 Litt. (Ky.) 189; Anderson v. City of
Bath, 42 Me. 346; Dikeman v. Arnold, 71 Mich. 656; Hancock v.
Stout, 28 Neb. 301; State v. Levigne, 17 Nev. 435; Evarts v. Burton,
17 N. Y. Wkly. Dig. 401; Lawrence v. Hudson, 12 Heisk. (Tenn.)
671; Hopkins v. Richardson, 9 Grat. (Va.) 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 evidence, 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. Hopkins v. Rich-
ardson, 9 Grat (Va.) 485; Farish v. Reigle, 11 Grat. (Va.) 697;
Early v. Garland's Lessee, 13 Grat. (Va.) 1; Honesty v. Com., 81
Va. 283; New York, P. & N. R. Co. v. Thomas, 92 Va. 606. If there
be any evidence of a fact, though tjie weight of evidence be against
it, it is error to refuse to instruct the jury as to the legal effect of
that fact, if they believe it from the evidence. Levy v. Gray, 56
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 fatt 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.
118 Peoria M. & F. Ins. Co. v. Anapow, 45 111. 86; Wells v. Turner,
16 Md. 133; Sword v. Keith, 31 Mich. 247.
(362)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 147
and to impress the same iipon the jury ; and though the judge
may take a different view, the question is to be determined
by the jury, and, in case the jury should concur with coim-
sel, defendant has the clear right to have them instructed as
to the law applicable to the case."-'-''^ It is error to refuse
a request applicable to the evidence upon a material point,
where the evidence upon that point is conflicting.^-'* Where
there is no evidence' in the case supporting or tending to sup-
port the proposition involved in the request, it is not only
proper to refuse the request, but it would be improper to
give it.-**®
§ 147. Same — Requests covered by other instructions.
It is not error to refuse to give requested instructions
which are sufficiently covered by other instructions given in
the case.^^" The cases announcing and applying this rule
117 state V. Tucker, 38 La. Ann. 789.
lis Hunt V. Elliott, 77 Cal. 588; Renton v. Monnier, 77 Cal. 449;
Sperry v. Spaulding, 45 Cal. 549; Trask v. People, 104 111. 569;
Wooters v. King, 54 111. 343; Wisner v. Davenport, 5 Mich. 501;
State V. Partlow, 90 Mo. 608; Smith v. J. W. Wilson & Boatman Sav.
Bank, 1 Tex. Civ. App. 115.
119 Bacon v. Green, 36 Pla. 325; Pensacola & A. R. Co. v. Atkinson,
20 Pla. 450; Willis v. Bullitt, 22 Tex. 330. See ante, c. 5. The
evidence relied on must be legally sufficient to warrant the conclu-
sion 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." Corbitt v. Mooney, 84 Mo. App. 645.
120 Alabama: Zimmerman v. State (Ala.) 30 So. 18; Southern
Ry. Co. V. Shirley (Ala.) 29 So. 687; Alabama Lumber Co. v. Keel,
125 Ala. 603; Liner v. State, 124 Ala. 1; Murphy v. State, 108 Ala.
10; Smith v. State, 92 Ala. 30. 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 request of the opposite party,
or by the court of its own motion, furnish no ground for refusing
(363)
§ 147 INSTRUCTIONS TO JURIES. [Ch. 13
are almost innumerable. Indeed, it is an obvious and neces-
sary rule, for otherwise counsel could easily trip the court
a request, as a party is entitled to have an instruction given in the
exact language of his request.
Arizona: Morgan v. Territory (Ariz.) 64 Pac. 421. ,
Arkansas: Reed v. State, 54 Ark. 621; Johnson v. Brock, 23 Ark.
283.
California: People v. Ramirez, 56 Cal. 533; People v. Williams,
32 Cal. 280; Trabing v. California Nav. & Imp. Co., 133 Cal. xx., 65
Pac. 478; People v. Shears, 133 Cal. 154; Wahlgren v. Market St. Ry".
Co., 132 Cal. 656; People v. Grimes, 132 Cal. 30; Taylor v. Ford, 131
Cal. 440; People v. Rodley, 131 Cal. 240; Sutro v. Easton, Eldridge
& Co., 130 Cal. 339.
Colorado: Kansas Pac. Ry. Co. v. Ward, 4 Colo. 31; City of
Boulder v. Fowler, 11 Colo. 396.
Connecticut: Town of Rldgefleld v. Town of Fairfield, 73 Conn.
47; Charter v. Lane, 62 Conn. 124; City of Hartford -v. Champion,
58 Conn. 276.
District of Columbia: United States v. McBride, 7 Mackey, 371;
Johnson v. Baltimore & P. R. Co., 6 Mackey, 232.
Florida: Wooten v. State, 24 Fla. 355; Higginbotham v. State
(Fla.) 29 So. 410; Long v. State (Fla.) 28 So. 775; Coleman v. State,
26 Fla. 61.
Georgia: Odum V. Creighton Mining & Milling Co., Ill Ga. 873;
Gramling v. Pool, 111 Ga. 93; Hoilman v. Oates, 77 Ga. 701; Bern-
hard v.-State, 76 Ga. 613; O'Neal v. O'Neal, 112 Ga. 348; Taylor v.
Allen, 112 Ga. 330.
Idaho: State v. Lyons (Idaho) 64 Pac. 236.
Illinois: Globe Mut. Life Ins. Ass'n v. Ahem, 191 111. 167, af-
firming 92 111. App. 326; Merritt v. Boyden, 191 111. 136, alErming
93 111. App. 613; Moore v. People, 190 111. 331; City of La Salle v.
Kostka, 190 111. 130, affirming 92 111. App. 91; Cleveland, C, C. &
St. L. Ry. Co. v. Keenan, 190 111. 217, affirming 92 111. App. 430;
Jennings v. People, 189 111. 320; Pioneer Fireproof Construction Co.
V. Howell, 189 111. 123, affirming 90 111. App. 122; Cleveland, C, C. &
St. L. Ry. Co. V. Wood, 189 111. 352, affirming 90 111. App. 551; Saville
V. Marsach, 93 111. App. 589; City of Sterling v. Merrill, 124 111. 522;
Mason v. Jones, 36 111. 212.
Indiana: Chicago, I. & B. Ry. Co. v. Curless (Ind.) 60 N. B. 467;
City of Bvansville v. Senhenn (Ind.) 59 N. E. 863; North British &
Mercantile Ins. Co. v. Rudy (Ind.) 60 N. E. 9; Lake Brie & W. R.
Co. V. Reiser, 25 Ind. App. 417; Trittipo v. Beaver, 155 Ind. 652;
Whitney v. State, 154 Ind. 573; Blume v. State, 154 Ind. 343; Chi-
(364)
Ch. 13] " " REQUESTS FOR INSTRUCTIONS. § 147
by multiplying requests for the same proposition in varying
phraseology, and thus speculate on the chance of securing a
cago, I. & E. Ry. Co. v. Patterson, 26 Ind. App. 295 ; Citizens' St. Ry.
Co. V. Merl, 26 Ind. App. 284; Home Ins. Co. v. Sylvester, 25 Ind.
App. 207; Ray v. Moore, 24 Ind. App. 480; Benson v. State, 119 Ind.
488; Westbrook v. Aultman, Miller & Co., 3 Ind. App. 83.
Iowa: LlUie v. Brotherhood of Railway Trainmen (Iowa) 86 N.
W. 279; State v. Easton (Iowa) 85 N. W. 795; Klos v. Zahorik
(Iowa) 84 N. W. 1046; Graybill v. Chicago, M. & St. P. R. Co., 112
Iowa, 738; Meyer v. Boepple Button Co., 112 Iowa, 51; Sanders v.
O'Callaghan, 111 Iowa, 574; Shambaugh v. Current, 111 Iowa, 121;
State V. Peterson, 110 Iowa, 647; Albrosky v. Iowa City, 76 Iowa,
301; State v. Winter, 72 Iowa, 627.
Kansas: State v. Elliott, 62 Kan. 869, 64 Pao. 1027; Anderson v.
Canter (Kan. App.) 63 Pac. 285; McCormick Harvesting Mach. Co.
V. Hayes (Kan. App.) 62 Pac. 901; State v. Peterson, 38 Kan. 204;
State v. Bailey, 32 Kan. 83.
Kentucky: Bonte v. Postel, 22 Ky. Law Rep. 583, 58 S. W. 536;
Stafford V. Hussey, 17 Ky. Law Rep. 1194, 33 S. "W. 1115; Whittaker
V. Com., 13 Ky. Law Rep. 504, 17 S. W. 358.
Louisiana: State v. Hartleb, 35 La. Ann. 1180; State v. Garic, 35
La. Ann. 970.
Maine: Strickland v. Hamlin, 87 Me. 81; State v. Williams, 76
Me. 480.
Maryland: Gill v. Staylor (Md.) 49 Atl. 650; United Railways &
Electric Co. of Baltimore City v. Seymour, 92 Md. 425; Lake Roland
El. Ry. Co. v. McKewen, 80 Md. 593; Baltimore & R. Turnpike Road
V. State, 71 Md. 573.
Massachusetts; Hadlock v. Brooks (Mass.) 59 N. E. 1009; Mc-
Coubrey v. German-American Ins. Co., 177 Mass. 327; Hopkins v.
O'Leary, 176 Mass. 258; McLean v. Wiley, 176 Mass. 233; Com. v.
Cosseboom, 155 Mass. 298; Com. v. Ford, 146 Mass. 131.
Michigan: Bates v. Kuney's Estate, 124 Mich. 596; Keables v.
Christie, 47 Mich. 594; Joslin v. Le Baron, 44 Mich. 160.
Minnesota: Parsons Band Cutter & Self-Feeder Co. v. Haiib, 83
Minn. 180; Ladd v. Newell, 34 Minn. 107; State v. MeCartey, 17
Minn. 76 (Gil. 54); State v. Beebe, 17 Minn. 241 (Gil. 218).
Missouri: Perrette v. City of Kansas City, 162 Mo. 238; Brash
V. City of St. Louis, 161 Mo. 433 ; De Donato v. Morrison, 160 Mo.
581; Anderson v. Union Terminal R. Co., 161 Mo. 411; McBaine v.
Johnson, 155 Mo. 191; Harris v. Lee, 80 Mo. 420; State v. King, 44
Mo. 238; Baldwin v. Boulware, 79 Mo. App. 5, 2 Mo. App. Rep'r, 359;
(365)
I 147 INSTRUCTIONS TO JURIES. [Ch. 13
favorable verdict, and at the same, time being able to secure
a reversal in case the verdict and judgment were unfavor-
Connor v. Heman, 44 Mo. App. 346; State v. Bradford, 156 Mo. 91;
State V. Miller, 156 Mo. 76; Norris v. Whyte, 158 Mo. 20; State v.
West, 157 Mo. 309; Sta,Izer v. Jacob Dold Packing Co., 84 Mo. App.
565; State v. Gregory, 158 Mo. 139.
Montana: State v. Mahoney, 24 Mont. 281; Territory v. Corbett,
3 Mont. 50; Territory v. McAndrews, 3 Mont. 164.
Nebraska: Coll v. State (Neb.) 86 N. W. 925; Chapman v. State
(Neb.) 86 N. W. 907; Green v. Lancaster County (Neb.) 85 N. W.
439; Spaulding v. State (Neb.) 85 N. W. 80; Smith v. State (Neb.)
85 N. W. 49; Card well v. State, 60 Neb. 480; Missouri Pac. Ry. Co. v.
Fox, 60 Neb. 531; Bushnell v. Chamberlain, 44 Neb. 751; Hodgman
V. Thomas, 37 Neb. 568.
Nevada: State v. Maher, 25 Nev. 465; State v. Ward, 19 Nev.
297; State v. Cardelli, 19 Nev. 319.
New Hampshire: Smith v. Bank of New England (N. H.) 46 Atl.
230; Whitman v. Moray, 63 N. H. 448.
New Jersey: Smith v. Irwin, 51 N. J. Law, 507; Jackson v. State,
49 N. J. Law, 252.
New Mexico: Territory v. Baker, 4 N. M. (Gild.) 236, 4 N. M.
(Johns.) 117; Anderson v. Territory, 4 N. M. (Johns.) 108.
New York: Wagner v. Bufealo & R. Transit Co., 59 App. Div.
419, 69 N. Y. Supp. 113; Powell v. F. C. Linde Co., 58 App.
Div. 261; Frank v. Metropolitan St. Ry. Co., 58 App. Div. 100;
Minister v. Benoliel, 32 Misc. Rep. 630, 66 N. Y. Supp. 493; Henn
V. Long Island R. Co., 51 App. Div. 292, 65 N. Y. Supp. 21; Rom-
meney v. City of New York, 49 App. Div. 64, 63 N. Y. Supp. 186;
Lawson v. Metropolitan St. Ry. Co., 166 N. Y. 589, affirming 40 App.
Div. 307, 57 N. Y. Supp. 997; Horowitz v. Hamburg American Packet
Co., 15 Misc. Rep. 466; Holbrook v. Utica & S. R. Co., 12 N. Y. 236.
North Carolina: Bradley v. Ohio River & C. Ry. Co., 126 N. C.
735; State v. Neville, 51 N. C. 423; Redmond v. Stepp, 100 N. C. 212.
North Dakota: State v. Pancoast (N. D.) 67 N. W. 1052.
Ohio: Bond v. State, 23 Ohio St. 349; Stewart v. State, 1 Ohio
St. 67.
Oklahoma: GatlifC v. Territory, 2 Okla. 523.
Oregon: Stamper v. Raymond, 38 Or. 16; Lieuallen v. Mosgrove,
37 Or. 446; Roth v. Northern. Pac. Lumbering Co., 18 Or. 205; State
v. Brown, 7 Or. 186.
Pennsylvania: Munderbach v. Lutz's Adm'r, 14 Serg. & R. 220;
Kroegher v. McConway & Torley Co., 149 Pa. 444.
(366)
oil. 13] REQUESTS FOR INSTRUCTIONS. § 147
able. Moreover, a multiplication of instructions announ-
cing, in effect, the same legal principle, only tends to incumber
Rhode Island: Hampson v. Taylor, 15 R. I. 83.
South Carolina: Lowrimore v. Palmer Mfg. Co., 60 S. C. 153;
Mason v. Southern Ry. Co., 58 S. C. 70, rehearing denied 58 S. C.
582; Emory v. Hazard Powder Co., 22 S. C. 483; State v. Robinson,
35 S. C. 340.
South Dakota: Blair v. City of Groton, 13 S. D. 211; State v.
Phelps, 5 S. D. 480; Griswold v. Sundback, 4 S. D. 441.
Tennessee: Stacker v. Louisville & N. R. Co., 106 Tenn. 450;
Arkansas River Packet Co. v. Hobbs, 105 Tenn. 29; Guaranty, etc.,
Soc. V. Ford, 104 Tenn. 533; Brown v. Odill, 104 Tenn. 250; Knights
of Pythias v. Rosenfeld, 92 Tenn. 508; Southern R. Co. v. Pugh, 97
Tenn. 624.
Texas: Texas & P. Ry. Co. v. Durrett (Tex. Civ. App.) 63 S. W.
904; Texas & P. Ry. Co. v. Wooldridge (Tex. Civ. App.) 63 S. W.
905; Tyler S. E. Ry. Co. v. Hitchins (Tex. Civ. App.) 63 S. W. 1069;
Houston & T. C. Ry. Co. v. Moss (Tex. Civ. App.) 63 S. W. 894;
Texas & P. Ry. Co. v. McClane, 24 Tex. Civ. App. 321; Fant v.
Wright (Tex. Civ. App.) 61 S. W. 514; Galveston, H. & S. A. Ry. Co.
V. Williams (Tex. Civ. App.) 62 S. W. 808; Galveston, H. & S. A. Ry.
Co. v. Morris (Tex.) 61 S. W. 709, affirming 60 S. W. 813; Houston
& T. C. R. Co. V. Milam (Tex. Civ. App.) 60 S. W. 591, reversing 58
S. W. 735; Galveston, H. & S. A. Ry. Co. v. English (Tex. Civ. App.)
59 S. W. 626; International & G. N. R. Co. v. Newburn (Tex. Civ.
App.) 58 S. W. 542; Galveston, H. & S. A. Ry. Co. v. Johnson, 24 Tex.
Civ. App. 180; Nehring v. McMurrian (Tex.) 57 S. W. 943, reversing
53 S. W. 381; Johnson v. State (Tex. Cr. App.) 55 S. W. 968; Galveston,
H. & S. A. Ry. Co. v. McGraw (Tex. Civ. App.) 55 S. W. 756; Hous-
ton & T. C. R. Co. V. White, 23 Tex. Civ. App. 280, 56 S. W. 204; Smith
V. Clay (Tex. Civ. App.) 57 S. W. 74; City of Corsicana v. Tobin,
23 Tex. Civ. App. 492; Houston & T. C. R. Co. v. Patterson (Tex.
Civ. App.) 57 S. W. 675; Texas Midland R. Co. v. Brown (Tex. Civ.
App.) 58 S. W. 44; Sherman, S. & S. Ry. Co. v. Bell (Tex. Civ.
App.) 58 S. W. 147; Texas & P. R. Co. v. Taylor (Tex. Civ. App.)
58 S. W. 166, reversed on rehearing 58 S. W. 844; Kirby v. Estell,
24 Tex. Civ. App. 106; Luckie v. Schneider (Tex. Civ. App.) 57 S. W.
690; Massingill v. State (Tex. Cr. App.) 63 S. W. 315; Tippett v.
State (Tex. Cr. App.) 63 S. W. 883; Duckworth v. State (Tex. Cr.
App.) 63 S. W. 874; Bell v. State (Tex. Cr. App.) 62 S. W. 567;
Patton V. State (Tex. Cr. App.) 61 S. W. 309; Aston v. State (Tex.
Cr. App.) 61 S. W. 307; Harris v. State (Tex. Cr. App.) 57 S. W.
(367)
§ 147 INSTRUCTIONS TO JURIES. [Ch. 13
the record and confuse the jury.^^* It is also likely to result
in giving undue prominence to issues, theories, and evi-
dence,^^^ which, as already seen, is improper and errone-
ous.*^* It is ordinarily sufficient for the court, in its charge
to the jury, to "state once, fully and clearly," the proposi-
tions of law governing the case.-'^* The court should not
"multiply instructions, with changed phraseology, on a sin-
gle proposition of law. One clear, pointed statement to the
jury of each proposition advanced is sufficient."*^" The
833; Wllkerson v. State (Tex. Cr. App.) 57 S. W. 956; Blanco t.
State (Tex. Cr. App.) 57 S. W. 828; Carroll v. State (Tex. Cr. App.)
56 S. W. 913; Yoakum v. Kelly (Tex. Civ. App.) 30 S. W. 836;
Muely V. State, 31 Tex. Cr. App. 155.
Utah: Osborne v. Phenix Ins. Co., 64 Pac. 1103; People v. Chad-
wick, 7 Utah, 134; Cunningham v. Union Pac. Ry. Co., 4 Utah, 206;
Konold v. Rio Grande Western Ry. Co., 21 Utah, 379.
Virginia: Longley v. Com., 37 S. E. 339; Richmond & D. R. Co. r.
Burnett, 88 Va. 538; Harman v. CundifE, 82 Va. 239.
Washington: Howay v. Going-Northrup Co. (Wash.) 64 Pac. 135;
Cowie V. City of Seattle, 22 Wash. 659; Einseidler v. Whitman
County, 22 Wash. 388; Brewster v. Baxter, 2 Wash. T. 135; State v.
Freidrich, 4 Wash. St. 204.
West Virginia: State v. Bingham, 42 W. Va. 234; Davidson v.
Pittsburg, C, C. & St. L. Ry. Co., 41 W. Va. 407.
Wisconsin: Osen v. Sherman, 27 Wis. 501; Spain v. Howe, 25
Wis. 625; Shaw v. Gilbert (Wis.) 86 N. W. 188; Messman v. Ihlen-
feldt, 89 Wis. 585.
United States: Marchand v. Griffon, 140 U. S. 516; Indianapolis
& St. L. R. Co. V. Horst, 93 U. S. 291; Denver & R. G. R. Co. v.
Roller, 41 C. C. A. 22, 100 Fed. 738.
i2iHaney v. Caldwell, 43 Ark. 184; Continental Ins. Co. v. Horton,
28 Mich. 173; Pettigrew v. Barnum, 11 Md. 434; Baltimore & O. R.
Co. V. Resley, 14 Md. 424.
122 City of Lincoln v. Holmes, 20 Neb. 39; Campbell v. Holland, 22
Neb. 587; Gray v. JBurk, 19 Tex. 228; Newman v. Farquhar, 60 Tex.
640; Powell V. Messer's Adm'r, 18 Tex. 401; Hays v. Hays, 66 Tex.
606; Traylor v. Townsend, 61 Tex. 144.
128 See ante, c. 8.
124 State V. Kearley, 26 Kan. 77.
125 Olive V. State, 11 Neb. 1.
(368)
Ch. 13J REQUESTS FOR INSTRUCTIONS. § 147
duty of the court is fully discharged if the instructions given
embrace all the points of law arising in the case/^" and its
effort should be to render the instructions as free from com-
plexity as possible.-'^'' The. rule making it proper to refuse
instructions reiterating a rule of law already announced to
the "jury applies, though the language of the request differs
from the language used in the instruction giveri/^^ and with-
out regard to whether the requested instructions are covered
by the general charge/^* or by instructions given at the re-
126 Deitz V. Regnier, 27 Kan. 95.
127 Deford v. State, 30 Md. 179.
128 Stanton v. State, 13 Ark. 317; Richard v. State (Fla.) 29 So.
413; Kennard v. State (Fla.) 28 So. 858; Keeler v. Stuppe, 86 III.
309; Earn v. People, 73 111. 329; Roth v. Smith, 41 111. 314; Chicago
& E. I. R. Co. V. Boggs, 101 Ind. 522; Norris v. Kipp, 74 Iowa, 444;
Lobenstein v. Pritchett, 8 Kan. 213; Marshall v. Bingle, 36 Mo.
App. 125; Binfield v. State, 15 Neb. 484; People v. O'Connell, 62
How. Pr. (N. Y.) 436; Donald v. State, 21 Ohio Cir. Ct. R. 124, n
Ohio Cir. Dec. 483; Tucker v. Hamlin, 60 Tex. 171; Powell v. Me.s-
ser's Adm'r, 18 Tex. 401; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408.
Refusal to give an instruction in the language of the statute was
not error, where it had been given in substance, and one merely
in the language of the statute would have been of no assistance.
State V. Reed, 68 Ark. 331.
129 state V. Hamann (Iowa) 85 N. "W. 614; Shannon v. Town of
Tama City, 74 Iowa, 22; State v. Start (Kan. App.) 63 Pac. 448;
Missouri Pac. Ry. Co. v. Johnson, 44 Kan. 660; State v. Tulip, 9
KamApp. 454; State v. Fontenot, 48 La. Ann. 283; Schultz v. Bower,
64 Minn. 123; Mahon v. Metropolitan St. Ry. Co., 68 N. Y. Supp.
775; City Trust, Safe Deposit & Surety Co. of Philadelphia v.
Fidelity & Casualty Co. of Ne:w^ York, 58 App. Div. 18, 68 N. Y.
Supp. 601; Hummel v. Stern, 164 N. Y. 603; Gatliff v. Territory,
2 Okl. 523; State v. McDaniel (Or.) 65 Pac. 520; State v. Tucker,
36 Or. 291; Wilkie v. Raleigh & C. F. R. Co., 127 N. C. 203;
State V. McGahey, 3 N. D. 293; Watterson v. Fuellhart, 169 Pa.
612, 36 Wkly. Notes Cas. 565; Long v. Hunter, 58 S. C. 152; Inter-
national & G. N. R. Co. v. Jackson (Tex. Civ. App.) 62 S. W. 91;
Parlin & Orendorff Co. v. Coffey (Tex. Civ. App.) 61 S. W. 512;
Houston & T. C. R. Co.j v. Byrd (Tex. Civ. App.) 61 S. W. 147;
(369)
24 — Ins. to Juries.
§ 148 INSTRUCTIONS TO JURIES. [Ch. 13
quest of the opposite party/ ^^ or by the court of its own mo-
tion. ^^^ Nevertheless, 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 otherwise
mislead the jury.^^^
§ 148. Same — Digest of decisions.
Alabama.
"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 salier, however, if the charge assert a correct legal principle,
when viewed in connection with the testimony, 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 Louisville & N. R. Co. v. Hurt, 101 Ala. 34,
where it is held that the court commits no error in refusing charges
requested by a party which are mere repetitions of charges already
given at his request. A mere variation in the use of words, which
Bruce v. First Nat. Bank of Weatherford (Tex. Civ. App.) 60 S.
W. 1006; 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; Ramey v. State (Tex. Cr. App.) 61 S. W. 126; Gann v. State
(Tex. Cr. App.) 59 S. W. 896; Padron v. State (Tex. Cr. App.) 55 S.
W. 827; Cannon v. State (Tex. Cr. App.) 56 S. W. 351; Neely v.
State (Tex. Cr. App.) 56 S. W. 625; Courtney t. State (Tex. Cr.
App.) 57 S. W. 654; Stevens v. State (Tex. Cr. App.) 58 S. W. 96;
Dudley v. State (Tex. Cr. App.) 58 S. W. Ill; Texas & P. Ry. Co. v.
Padgett (Tex. Civ. App.) 36 S. W. 300; Pless v. State, 23 Tex. App.
73; Coffin v. United States, 162 U. S. 664.
130 Casey y. State, 37 Ark. 67; Lake Roland El. Ry. Co. v. Mc-
Kewen, 80 Md. 593. In Alabama the rule is different. See post, §
152, "Duty to Follow Language of Request."
131 People V. Bene, 130 Cal. 159. "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 (Md.) 49 Atl. 414.
i32Lawder v. Henderson, 36 Kan. 754; Ratto v. Bluestein, 84 Tex.
57; International & G. N. R. Co. v. Leak, 64 Tex. 654.
(370)
Ch. 13] ' REQUESTS FOR INSTRUCTIONS. § 148
does not change the meaning in any respect, or application of the ,
principles asserted, does not affect the rule. Smith v. State, 92
Ala. 30; Murphy v. State, 108 Ala. 10.
California.
Where the court instructed that the rights of the p'arties were
to be determined by the strict rules of law, a refusal to charge
that plaintiff was not entitled to any sympathy from the jury was
not error. Parker v. Otis, 130 ' Cal. 322. A refusal to charge that
the jury had a right to consider that innocent men had been con-
victed, and the danger of convicting men, was not error where the
rule as to the degrees of proof required in criminal cases, and the
doctrine of reasonable doubt, were fully stated and explained. Peo-
ple V. Findley, 132 Cal. 301. Where the court has explicitly In-
structed the jury upon the subject of degrees of the offense charged
against defendant, and defined the different degrees, "and expressly
informed them that the defendant might be convicted of either,
* * * it is not required that the court shall repeat such in-
struction in every possible connection in which reference could
be made to the degrees of the offense." People v. Schmitt, 106
Cal. 48.
Georgia.
Where the jury have heen instructed that the plaintiff has the
burden of proving a certain proposition, the court may properly
refuse to instruct that the burden of proof is not upon the defend-
ant to prove the negative of such proposition. Richmond R. Co.
v. Howard, 79 Ga. 44.
Illinois.
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, in weighing evidence, they had the right to consider
whatever interest the witnesses might have in the result. Chicago
City Ry. Co. v. Mager, 185 111. 336, afllrming 85 111. App. 524.
Indiana.
Where, in a prosecution for larceny, "full and clear definitions
of the crime with which the appellant is charged are given, and
the jury is properly instructed as to the difference between a mere
trespass and the crime of larceny," a modification of an instruc-
tion tendered by defendant "by striking therefrom the words, 'Lar-
ceny is something more than mere trespass,' does not constitute
reversible error." Currier v. State (Ind.) 60 N. B. 1023.
Iowa.
A refusal to instruct that fraud is not presumed, and that, if the
(371)
§ ;148 INSTRUCTIONS TO J UKIKS. [Ch. 13
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 purpose as a fraudulent one, the ver-
dict should be for- the person charged therewith. Connors v. Chin-
gren. 111 Iowa, 437. The refusal of an instruction calling attention
to. the effect of impeaching evidence upon the credibility of any par-
ticular witness is not erroneous where a general instruction on the
question has been given. State v. Curran, 51 Iowa, 112. Where, "in
several of the instructions, the attention of the jury is called to the
fact that, to convict defendant, they must be satisfied of his guilt be-
yond 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 because the jury are not told
therein that, before they can find the defendant guilty, they must
be satisfied of his guilt beyond a reasonable doubt. It is not prac-
ticable for a trial court to state all the law governing a case in
each and every instruction given." State \. Tippet, 94 Iowa, 646.
Kansas.
Where the court has instructed the jury generally upon the ef-
fect of false testimony given knowingly and willfully, it is not
error to refuse an instruction as to the effect of a contradiction be-
tween testimony given on different occasions on a single point
Bernstein v. Smith, 10 Kan. 60.
Kentucky.
Where the court has given a very clear instruction on contrib-
utory negligence, it is proper to refuse an instruction concerning
a particular circumstance frtom which contributory negligence may
be inferred. Paducah Railway & Light Co. v. Ledsinger (Ky.) 63
S. W. 11.
Massachusetts.
Where a statute provides that, in actions at law, "the defendant
may 'allege as a defense any facts that would entitle him In equity
to be absolutely and unconditionally relieved against the plaintiff's
claim or cause of action, or against a judgment obtained by the
plaintiff in such action,' " and the jury are told that certain facts
are a legal defense, it will be of no advantage to a party to tell
the jury that such facts are also a defense, under the statute.
Twomey v. Linnehan, 161 Mass. 91.
Missouri.
Where the jury have been instructed that a preponderance of
evidence in plaintiff's favor is necessary to a recovery. It may
refuse to instruct that the verdict should be for defendant if the
evidence is evenly balanced. Blltt v. Helnrich, 33 Mo. App. 243,
(372)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 130
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 subsequent instruction "should submit to the jury the ques-
tion as to whether or not the knife was a dangerous or deadly
weapon." State v. Weeden, 133 Mo. 70.
New York.
"Where, in an action to recover for injuries caused by a collision
of a tally-ho coach with a train at a railroad crossing, the court
has charged that "there can be no recovery if the accident is
caused by the driver or helper, and the character of the vehicle
and teams," it is proper to refuse a charge that "if, upon all the
evidence, the jury find that this collision would not have happened
except for the unusual character of the turnout, then the verdict
must be for the defendant." Henn v. Long Island R. Co., 51 App.
Div. 292, 65 N. Y. Supp. 21. Where the court has charged, in a
civil case, that "the burden is upon the plaintiff to establish the
essential features of her case by a fair preponderance of the credi-
ble testimony in the case, and he has further charged that if, upon
the conflict of testimony, the plaintiff has not proved her case by
a preponderance of testimony, but the testimony stands equal, there
can be no recovery by the plaintiff, because it is' incumbent upon
her to prove her case by a fair preponderance," it is proper to
refuse to charge the jury "that. If they are in doubt after hear-
ing all this testimony, they must give their verdict for the defend-
ant." Hamel v. Brooklyn Heights R. Co., 59 App. Div. 135, 69
N. Y. Supp. 166. Where the court has charged that, if certain
"witnesses were believed and were corroborated, the evidence would
be sufficient to warrant a conviction," it need not also charge that,
if the jury did not believe the testimony of such witnesses, they
must acquit, it not being contended by any one that", without the
testimony of such witnesses, the defendant could be convicted.
People V. McQuade, 48 Hun, 620, 1 N. Y. Supp. 156.
Rhode Island.
Where, in an action by a servant against a master to recover
for injuries caused by defective machinery, the court has charged
"that the plaintiff assumed all obvious risks, including those caused
by the breaking of belts, if she knew that they were frequently
accustomed to break," it is proper to refuse an instruction that,
"if belts were constantly breaking in the room where plaintiff ,
worked, and the plaintiff knew of that fact, and continued to work
(373)
§ 143 INSTRUCTIONS TO JURIES. [(Jh. 13
there, she assumed the risk of heing injured hy 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 (R. I.) 47 Atl. 1092.
South Carolina.
Where the jury have been warned against deciding the case by
sympathy, a special charge on the subject may be refused. Hay
V. Carolina Midland R. Co., 41 S. C. 542.
Texas.
In a prosecution for an assault, the court was not required to
give a charge that a "mere knowledge on the part of defendant
that an assault would be committed did not render him a prin-
cipal in the offense," where the court "sufficiently Instructed the
jury on the doctrine of principals, and required the jury to be-
lieve beyond a reasonable doubt that defendant acted as a prin-
cipal in committing the assault on the prosecutor, before they could
find him guilty, — having previously defined to the jury the law of
principals." Grammer v. State (Tex. Cr. App.) 61 S. W. 402.
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 satisfied "that the same had
been corroborated 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 another, and
that two or more accomplices cannot corroborate each other,"
though, where more than one accomplice testifies, it is advisable
for the court to instruct that one accomplice cannot corroborate
another. Stevens v. State (Tex. Cr. App.) 58 S. W. 96. In a prose-
cution for theft, where the jury has been instructed that "the evi-
dence, on the whole, must produce in your minds, to a reasonable
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 reasonable doubt whether ap-
pellant or some one else took the money from the injured party,
to acquit defendant." McNamara v. State (Tex. Cr. App.) 55 S.
W. 823. Where the court has charged that, if defendant "was in-
sane, and did not know the nature and quality of his act, then
he was not amenable to punishment," it Is proper to refuse to
charge "upon the species of insanity known as 'temporary mental
aberration, as produced by adequate 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. Where, in an action against a telegraph company
(374)
Cll. 13] REQUESTS FOR INSTRUCTIONS. § 149
for failure to transmit a telegram, the principal question is as
to the authority of the receiving agent to execute the alleged con-
tract for the transmission of the telegram, and the court has charged
that the receiving agent must have had actual or' apparent author-
ity 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. Western Union Tel. Co.
V. Carter, 24 Tex. Civ. App. 80. 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. In-
ternational & G. N. R. Co. V. Crook (Tex. Civ. App.) 56 S. W.
1005. The court may give a charge "requested by plaintiff which
included a statement of the issues as they have already been stated
In the general charge." Galveston, H. & S. A. Ry. Co. v. Tuckett
(Tex. Civ. App.) 25 S. W. 150. It is not error to refuse to 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 ^f proof is upon the claimant. Swinney v. Booth,
28 Tex. 113. 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 motion to strike
out. Rollins V. O'Farrel, 77 Tex. 90.
§ 149. Same — Qualifications and exceptions to rule.
A party has a right to direct, positive, and certain instruc-
tions, and it is not sufficient that a charge is given v^hich,
by inference and argument, may be pressed to the same ex-
tent as the instruction refused.^ ^* Although the court may
have charged in a general way upon a given issue, yet, if this
be a determinative issue of the case, it is the duty of the
183 State V. Hpllingsworth, 156 Mo. 178; Koontz v. Kaufman, 31
Mo. App. 397; Gray v. McDonald, 28 Mo. App. 492; Klatt v. Houston
Electric St. Ry. Co. (Tex. Civ. App.) 57 S. W. 1112; Harris v. State
(Tex. Cr. App.) 57 S. W. 833; Livingston v. Maryland Ins. Co., 7
Cranch (U. S.) 506. It is not error to refuse a requested instruc-
tion where everything in it Is plainly implied in the instructions
given. People v. Rodley, 131 Cal. 240.
(375)
§ 149 INSTRUCTIONS TO JURIES. [Ch. 13
court to give a requested charge pertinently applying the law
to the facts in evidence relating to such issue.-' ^* A con-
crete instruction is always preferable to an abstract one ; and
where the law governing the case is stated in an abstract 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. ^^^ Especially in close
cases is a party entitled to a full and correct charge on the
facts of the particular case, if requested, and it is reversible
error to refuse such a request, although the charge is correct
on the general principles involved in the case.-'^" It is error
to refuse a requested instruction, although covered by the
general charge or other instructions, where the proposition
is given in such a disconnected manner as to impair its
force,^^''' or where it is not given in terms as full, clear, and
favorable as in the one requested,-'''^ or where, as given, the
charge was apt to mislead the jury, and the fault is corrected
by the required instruction.^^^ Where the requested charge
134 Fox V. Brady, 1 Tex. Civ. App. 590. "Where the testimony-
tends to show facts which, if found, constitute a complete defense,
the defendant is entitled to have a special charge upon such issue,
and a refusal to give such charge is reversible error where the gen-
eral charge fails to present clearly the law upon such issue." West-
ern Union Tel. Co. v. Andrews, 78 Tex. 305.
135 Thompson v. Thompson, 77 Ga. 692 ; Metropolitan St. R. Co.
V. Johnson, 90 Ga. 500; *Parkhill v. Town of Brighton, 61 Iowa, 103;
Muldowney v. Illinois Cent. R. Co., 39 Iowa, 615; Aldrige v. State,
59 Miss. 250; Lamar v. State, 64 Miss. 428; Gerdine v. State, 64
Miss. 798.
136 Souey V. State, 13 Lea (Tenn.) 472.
13T Mynning v. Detroit, L. & N. R. Co., 59 Mich. 257. See, also,
infra, § 152, "Duty to Follow Language of Request."
138 Muldowney v. Illinois Cent. R. Co., 32 Iowa, 180; State v.
Maher, 25 Nev. 465.
139 Manuel v. Chicago, R. I. & P. R. Co., 56 Iowa, 655; Haines v.
Illinois Cent. R. Co., 41 Iowa, 227; Willis v. McNeill, 57 Tex. 465.
(3Y6)
Ch. 13] BEQUESTS FOR INSTRUCTIONS. § 150
is not fairly covered by the instructions given, its refusal is,
of co\irse, error in accordance with the general rule.^*"
Though the matter contained in requested instructions has
been clearly set forth in instructions given, it is better to
give the requested instructions, if they state the law correct-
ly, as a refusal may cause an appeal, which otherwise would
not be taken.^*^
§ 150. Same^Necessity of stating grounds of refusal to jury.
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. ^'*^
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 jiidge, who marks them "Eefused" if he
rejects them, the jury cannot be misled by the refusal of the
"0 McCormlck Harvesting Mach. Co. v. Volkert, 81 Minn. 434.
See ante, § 146 et seq., "Necessity of Giving Requested Instructions."
See, also, post, § 152, "Duty to Follow Language of Request."
"1 People V. Murray, 41 Cal. 66; People v. Strong, 30 Cal. 151;
People V. King, 27 Cal. 515; Banks v. State, 7 Tex. App. 591.
ni3 People V. Hurley, 8 Cal. 390; People v. Ramirez, 13 Cal. 172;
People v. Williams, 17 Cal. 148; State v. Anderson, 4 Nev. 265;
People v. Bonds, 1 Nev. 33; State v. Ferguson, 9 Nev. 106; Davis v.
Richmond & D. R. Co., 30 S. C. 613. Contra, Hopcraft v. Lachman,
68 Hun (N. Y.) 433. See, also. People v. Hobson, 17 Cal. 424, where-
in it was held that failure to state the reason for refusal is not
ground for reversal unless the refused request was entirely free
from objection.
(377)
g 152 INSTRUCTIONS TO JURIES. [Ch. 13
request.*** 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 manifest-
ly 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."**^
§ 151. Same — Harmless error.
Although it is the duty of the court to comply with a proper
request for instructions, a failure to do so may, under the
circumstances, constitute merely a harmless error, which is
not a sufScient ground for reversal.**® Thus, where a ver-
dict is properly directed, a refusal to charge as requested is
not error. **^
§ 152. Duty to follow language of request.
In the absence of statute, while it is the duty of the court
to give correct instructions when properly requested, it need
11* People V. Saunders, 25 Mich. 119. See, also, State v. O'Connor,
11 Nev. 416.
"6 State V. O'Connor, 11 Nev. 427.
"8 Douglass v. McAllister, 3 Cranch (U. S.) 298. It is tlie duty
of the court, when properly called upon, to declare the law appli-
cable to the case. If, however, the verdict is, notwithstanding an
omission to instruct, for the same amount as must have been
awarded if the required instrucilon had been given, the error may
be disregarded. Douglass v. McAllister, 3 Cranch (U. S.) 298. See,
also. Trial of Hodges, Hall's Law Tracts, 111.
147 Myers v. Kingston Coal Co., 126 Pa. 582. 24 Wldy. Notes Cas.
223; Lewis v. Simon, 72 Tex. 470.
(378)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 153
not do so in the exact language of the request, but may do so
in its own language, provided the request is given in sub-
stance, and the party is not injured.^*® This is the rule pre-
"8 Arkansas: Crisman v. McDonald, 28 Ark. 8; Sadler v. Sadler,
16 Ark. 628; Viser v. Bertrand, 16 Ark. 296; Metcalf v. Little Rock
St. Ry. Co. (Ark.) 13 S. W. 729.
California: O'Rourke v. VennSkoW, 104 Cal. 254; Boyce v. Cali-
fornia Stage Co., 25 Cal. 460; People v. Kelly, 28 Cal. 425; People v.
Dodge, 30 Cal. 451.
Colorado: Martin v. Hazzard Powder Co., 2 Colo. 596; Jenkins v.
Tynon, 1 Colo. App. 133.
Connecticut: Tiesler v. Town of Norwicli, 73 Conn. 199; Charter
V. Lane, 62 Conn. 121; Appeal of Livingston, 63 Conn. 68.
Florida: Nickels v. Mooring, 16 Fla. 76; Young v. State, 24 Fla.
147.
Georgia: Freeman v. Coleman, 88 Ga. 421; Robinson v. State, 82
Ga. 535; Durham v. State, 70 Ga. 264; McConnell v. State, 67 Ga.
633; Williamson v. Nabers, 14 Ga. 286; Long v. State, 12 Ga. 293;
Parker v. Georgia Pac. R. Co., 83 Ga. 539.
Illinois: Bland v. People, 3 Scam. 364; Hanohett v. Kimbark, 118
111. 121; Chicago & W. I. R. Co. v. Blngenheimer, 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; Chicago, B. &
Q. R. Co. V. Dickson, 88 111. 431; Hays v. Borders, 1 Gilm. 46; Bir-
mingham Fire Ins. Co. of Pittsburg v. Pulver, 27 111. App. 17; City
of Chicago v. Moore, 139 111. 201, affirming 40 111. App. 332; Chicago
& A. R. Co. V. Pillsbury, 123 111. 9.
Indiana: Trogdon v. State, 133 Ind. 1, 4; White v. Gregory, 126
Ind. 95.
Iowa: National State Bank of Burlington v. Delahaye, 82 Iowa,
34; Norris v. Kipp, 74 Iowa, 444; Larsh v. City of Des Moines, 74
Iowa, 512; 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; Abbott v.
Striblen, 6 Iowa, 191; Paukett v. Livermore, 5 Iowa, 277.
Kansas: Missouri Pac. Ry. Co. v. Cassity, 44 Kan. 207; Chicago,
K. & W. R. Co. v. Brunson, 43 Kan. 371; State v. Tatlow, 34 Kan.
80; State v. Groning, 33 Kan. 18; Pullenwider v. Ewing, 25 Kan. 69;
Rice V. State, 3 Kan. 152.
Kentucky: Jackson v.'Com. (Ky.) 34 S. W. 14.
(379)
§ 152 INSTRUCTIONS TO JURIES. [Ch. 13
vailing in most of tte states. It seems a necessary conse-
quence of the rule already considered, that requests for in-
Louisiana: State v. Miller, 41 La. Ann. 677; State v. "Wright, 41
La. Ann. 605; State v. Durr, 39 La. Ann. 751; State v. Porter, 35 La.
Ann. 1159; State v. St. Geme, 31 La. Ann. 302; State v. Carr, 25
La. Ann. 407.
Maine: Inhabitants of Naples v. Inhabitants of Raymond, 72 Me.
213; Foye v. Southard, 64 Me. 389; State v. Reed, 62 Me. 129; State
V. Barnes, 29 Me. 561; Hovey v. Hobson, 55 Me. 256; Anderson v.
City of Bath, 42 Me. 346.
Maryland: Hall v. Hall, 6 Gill & J. 386; Mutual Safety Ins. Co.
V. Cohen, 3 Gill, 459; Kershner v. Kershner's Lessee, 36 Md. 334;
Smith V. Wood, 31_Md. 300; Philadelphia, W. & B. R. Co. v. Harper,
29 Md. 338; Davis' v. Furlow's Lessee, 27 Md. 546; Baltimore & 0.
R. Co. V. Worthington, 21 Md. 281; Snively v. Fahnestock, 18 Md.
391; Higgins v. Carlton, 28 Md. 115; Mayor, etc., of Baltimore v.
Pendleton, 15 Md. 12; Pettigrew v. Barnum, 11 Md. 434; Coates v.
Sangston, 5 Md. 121; Key v. Dent, 6 Md. 142; New York Life Ins.
Co. V. Flack, 3 Md. 341; Keener v. Harrod, 2 Md. 63.
Massachusetts: Com. v. Mullen, 150 Mass. 394; McMahon v.
O'Connor, 137 Mass. 216; Randall v. Chase, 133 Mass. 210; Howes
V. Grush, 131 Mass. 207; Thurston v. Perry, 130 Mass. 240; Com. v.
Cobb, 120 Mass. 356; Costley v. Com., 118 Mass. 1; Norwood v. City
of Somerville, 159 Mass. 105.
Michigan: Eldredge v. Sherman, 79 Mich. 484; 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; Mynning v. Detroit, L. & N. R. Co., 59
Mich. 258; People v. Hare, 57 Mich. 506; Pound v. Port Huron &
S. "W. Ry. Co., 54 Mich. 13; Campau v. Dubois, 39 Mich. 274; Ulrich
V. People, 39 Mich. 245; Campbell v. People, 34 Mich. 351; Fraser v.
Jennison, 42 Mich. 206; Fowler v. Hoffman, 31 Mich. 215; Josselyn
V. McAllister, 22 Mich. 300; Fisher v. People, 20 Mich. 135; People
V. Weaver, 108 Mich. 649; Moore v. City of Kalamazoo, 109 Mich.
176; Babbitt v. Bumpus, 73 Mich. 331.
Minnesota: State v. Beebe, 17 Minn. 241 (Gil. 218); State v.
McCartey, 17 Minn. 76 (Gil. 54); Dodge v. Rogers, 9 Minn. 223
(Gil. 209) ; Chandler v. De Graff, 25 Minn. 88 ; State v. Mims, 26
Minn. 183 ; Smith v. St. Paul & D. R. Co., 51 Minn. 86.
Mississippi: Scott v. State, 56 Miss. 287; Green v. State, 28 Miss.
688; Masks v. State, 36 Miss. 77; Doe v. Peck, 4 How. 407; Boles v.
State, 9 Smedes & M. 284.
(380)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 152
structions substantially covered by other instructions given
in the case may be refused vyitbout error ; but in a tew states
Missouri: 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; Mitchell v. City of Plattsburg, 33 Mo. App. 555; Smith v.
Eno, 15 Mo. App. 576; Taylor v. Missouri Pac. R. Co. (Mo.) 16 S.
W. 206; Muehlhausen v. St. Louis R. Co., 91 Mo. 332.
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; Welch v.
Adams, 63 N. H. 352; Whitman v. Morey, 63 N. H. 448; Rublee v.
Belmont, 62 N. H. 365; Hardy v. Keene, 54 N. H. 449; Tucker v.
Peaslee, 36 N. H. 167; Clark v. Wood, 34 N. H. 447; Walcott v.
Keith, 22 N. H. 196.
New Jersey: Fath v. Thompson, 58 N. J. Law, 180.
New York: Sherman v. Wakeman, 11 Barb. 262; Williams v.
Birch, 6 Bosw. 299; Bulkeley v. Keteltas, 4 Sandf. 450; Fay v.
O'Neill, 36 N. Y. 11; Trustees of First Baptist Church v. Brooklyn
Fire Ins. Co., 23 How. Pr. 448; Carroll v. Tucker, 6 Misc. Rep. 613;
Morehouse v. Yeager, 71 N. Y. 594; People v. Williams, 92 Hun,
354, 36 N. Y. Supp. 511; Sherlock v. German American Ins. Co., 162
N. Y. 656.
North Carolina: Commissioners of Newbern v. Dawson, 32 N. C.
436; Burton v. March, 51 N. C. 409; State v. Neville, 51 N. C. 423;
Mq.rshall v. Flinn, 49 N. C. 199; Cornelius v. Brawley, 109 N. C.
542; Brink v. Black, 77 N. C. 59; State v. Scott, 64 N. C. 586; State
V. Brantley, 63 N. C. 518; Burton v. March, 51 N. C. 409; State v.
Brewer, 98 N. C. 607; State v.' McNeill, 92 N. C. 812; State v. An-
derson, 92 N. C. 632; Michael v. Foil, 100 N. C. 178; McDonald v.
Carson, 94 N. C. 497; Rencher v. Wynne, 86 N. C. 268; Moore v.
Parker, 91 N. C. 275; Patterson v. Mclver, 90 N. C. 493; Kinney v.
Laughenour, 89 N. C. 365; State v. Brabham, 108 N. C. 793; Thomp-
son V. Western Union Tel. Co., 107 N. C. 449; Everett v. Williamson,
107 N. C. 204; Bethea v. Raleigh & A. R. Co., 106 N. C. 279; Carlton v.
Wilmington & W. R. Co., 104 N. C. 365 ; Conwell v. Mann, 100 N. C.
234; Newby v. Harrell, 99 N. C. 149; McFarland v. Southern Imp.
Co., 107 N. C. 368; State v. Jones, 97 N. C. 469; Clements v. Rogers,
95 N. C. 248; Patterson v. Molver, 90 N. C. 493; State v. Hinson,
83 N. C. 640; State v. Boon, 82 N. C. 637; Long v. Pool, 68 N. C.
479; Wilcoxon v. Logan, 91 N. C. 449; State v. Bowman, 80 N. C.
432; State v. Dunlap, 65 N. C. 288; State v. Hargett, 65 N. C. 669;
(381)
§ 152 INSTRUCTIONS TO JURIES. [Ch. 13
the rule obtains, either by virtue of a statute or as an estab-
lished rule of practice, that reqiiested instructions must be
given in the exact language of the request,^*® and the error
Hawkins v. House, 65 N. C. 614; State v. Crews, 128 N. C. 581;
State v. Mills, 116 N. C. 992; State v. Thomas, 98 N. C. 599.
Ohio: McHugh v. State, 42 Ohio St. 154; Bolen v. State, 20 Ohio
St. 371; Bond v. State, 23 Ohio St. 349; Ashtabula, etc., Co. v. Da-
genbach, 11 Ohio Cir. Dec. 307; United States Home & Dower Ass'n
V. Kirk, 9 Wkly. Law Bui. (Ohio) 48.
Oklahoma: Veseley v. Engelkemeier, 10 Okl. 290.
Pennsylvania: Munderbach v. Lutz's Adm'r, 14 Serg. & R. 220
Geiger v. Welsh, 1 Rawle, 349; Duncan v. Sherman, 121 Pa. 520
Ridgway v. Longaker, 18 Pa. 215; Groft v. Weakland, 34 Pa. 304
Arbuckle v. Thompson, 37 Pa. 170; Lycoming Ins. Co. v. Schreffler,
42 Pa. 188; WInsor v. Maddock, 64 Pa. 231; Jacobs v. Curtis, 11
Leg. Int. 27; Lynch v. Welsh, 3 Pa. 294; Com. v. McManus, 143
Pa. 64.
South Carolina: State v. Wine, 58 S. C. 94; State v. Petsch, 43
S. C. 132; Hay v. Carolina Midland R. Co., 41 S. C. 542.
Texas: Missouri Pac. Ry. Co. v. Williams, 75 Tex. 4; Shultz v.
State, 13 Tex. 401.
Utah: Scoville v. Salt Lake City, 11 Utah, 64; People v. Chad-
wick, 7 Utah, 141, 142; Cunningham v. Union Pac. Ry. Co., 4 Utah,
206; People v. Olsen, 4 Utah, 413; People v. Hampton, 4 Utah, 258;
Clampitt V. Kerr, 1 Utah, 247; Reddon v. Union Pac. Ry. Co., -5
Utah, 344.
Vermont: Reed v. Newcomb, 64 Vt. 49; Campbell v. Day, 16 Vt.
558; State v. Eaton, 53 Vt. 574; Whittaker v. Perry, 38 Vt. 107.
Virginia: Richmond & D. R. Co. v. Norment, 84 Va. 167.
Washington: State v. Baldwin, 15 Wash. 15; City of Seattle v.
Buzby, 2 Wash. T. 25.
United States: Clymer's Lessee v. Dawkins, 3 How. 674; Kelly
V. Jackson, 6 Pet. 622; Ohio & M. Ry. Co. v. McCarthy. 96 U. S.
258; Pitts v. Whitnlan, 2 Story, 609, Fed. Cas. No. 11,196; Chicago
& N. W. Ry. Co. V. Whitton, 13 Wall. 270; Laber y. Cooper, 7 Wall.
565; Ayers v. Watson, 137 U. S. 601, 11 Sup. Ct. 201; Indianapolis
& St. L. R. Co. V. Horst, 93 U. S. 291; Continental Imp. Co. v. Stead,
95 U. S. 161; Southern Bell Tel. & Tel. Co. v. Watts, 13 C. C. A. 586,
66 Fed. 466.
"9 East Tennessee, V. & G. R. Co. v. Bayliss, 77 Ala. 430; Cun-
ningham V. State, 73 Ala. 53; Eiland v. State, 52 Ala. 322; Baker
(382)
Ch. 13] REQUESTS FOR INSTRUCTIONS. g 153
is not cured by giving a charge of equivalent import.^^" An
alteration of a requested instruction under this rule is equiva-
lent to a refusal of the request.' ^^ Under the Alabama stat-
ute, charges moved for in writing must be given or refused
in the terms in which they are written, but, if the request is
oral, it is subject to qualification, and the court may charge
V. State, 49 Ala. 351; Sawyer v. Lorillard, 48 Ala. 332; Bush v.
Glover, 47 Ala. 167; Warren v. State, 46 Ala. 549; Knight v. Clem-
ents, 45 Ala. 89; Milner v. Wilson, 45 Ala. 478; Lyon v. Kent, 45
Ala. 656; Edgar v. State, 43 Ala. 45; Polly v. McCall, 37 Ala. 21;
Bell's Adm'r y. Troy, 35 Ala. 186; Hogg v. State, 52 Ala. 2; Phillips
V. Beene, 16 Ala. 721; Cole v. Spann, 13 Ala. 537; Hinton v. Nelms,
13 Ala. 222; Clealand v. Walker, 11 Ala. 1059; iVey v. Phifer, 11
Ala. 535; United States Life Ins. Co. v. Lesser, 126 Ala. 568; Pen-
sacola & A. R. Co. v. Atkinson, 20 Pla. 450; Pate v. Wright, 30 Ind.
476; People v. Stewart, 75 MicS. 21; Lutterbeck y. Toledo Consoli-
dated St. R. Co., 5 Ohio Cir. Dec. 141; Galloway v. McLean, 2 Dak.
372; Peart v. Chicago, M. & St. P. Ry. Co., 8 S. D. 431; Green v.
Hughitt School Tp., 5 S. D. 452; Dillingham v. Fields, 9 Tex. Civ.
App. 4; Baltimore & O. R. Co. v. Laffertys, 14 Grat. (Va.) 478;
State V. Evans, 33 W. Va. 417; Eldred v. Oconto Co., 33 Wis. 134;
Andrea v. Thatcher, 24 Wis. 471; Mason v. Whitbeck Co., 35 Wis.
164; Castello v. Landwehr, 28 Wis. 522; Rogers v. Brightman, 10
Wis. 55; Lake Shore & M. S. Ry. Co. v. Schultz, 19 Ohio Cir. Ct. R.
639; Murphy v. City of Cincinnati, 8 Ohio N. P. 244, 11 Ohio S. &
C. P. Dec. 119; Grace v. Dempsey, 75 Wis. 313.
150 Bush V. Glover, 47 Ala. 167; Williams v. State, 47 Ala. 659:
Carson v. State, 50 Ala. 134; Knight v. Clements, 45 Ala. 89; East
Tennessee, V. & G. R. Co. v. Bayliss, 77 Ala. 429; 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. 1059; Ivey v. Phifer, 11 Ala. 535; Maynard v.
Johnson, 4 Ala. 116; Rives v. McLosky, 5 Stew. & P. (Ala.) 330:
Rogers v. Brightman, 10 Wis. 55. The earlier cases in Alabama es-
tablishing this rule were overruled in Long v. Rodgers, 19 Ala. 321,
and Ewing v. Sanford, 21 Ala. 157, but the original rule was re-
stored by statute. Rev. Code, § 2756. See Biland v. State, 52 Ala.
322.
isi Pensacola & A. R. Co. v. Atkinson, 20 Fla. 450.
(383)
g 153 INSTRUCTIONS TO JURIES. [Ch. 13
in its own language.^ ^^ On appeal, it will be presumed, in .
support of the judgment, that the charges were asked orally,
unless the record show affirmatively that they were requested
in writing.^^^ 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.^^*
; He should not make changes by erasure and interlineations.-''"
I The rule that instructions must be given in the language of
the request does not deprive the court of the right to give ad-
ditional and explanatory charges, where necessary to pre-
vent a misunderstanding or misapplication of the charge by
the jury;^^® but the court cannot, by such additional instruc-
tions, so limit, restrict, and modify the requested instruc-
152 Richardson v. State, 54 Ala. 158; Warren v. State, 46 Ala.
549; Milner v. Wilson, 45 Ala. 478; Lyon v. Kent, 45 Ala. 6b6;
Broadbent v. Tuskaloosa S. & A. Ass'n, 45 Ala. 170.
153 Milner v. Wilson, 45 Ala. 478.
164 Southern Cotton Press & Mfg. Co. v. Bradley, 52 Tex. 587;
Trezevant v. Rains (Tex. Civ. _App.) 25 S. W. 1092; Missouri Pac.
Ry. Co. V. 'Williams, 75 Tex. 4. See, also, King v. Rea, 13 Colo. 69;
Parker v. Georgia Pac. Ry. 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 presiding, so that it may
clearly appear to the appellate court what the charge was as asked,
and what modifications, if any, were made by the court below."
Southern Cotton Press & Mfg. Co. v. Bradley, 52 Tex. 602.
IBS Southern Cotton Press & Mfg. Co. v. Bradley, 52 Tex. 602.
166 Morris v. State, 25 Ala. 58; Eldred v. Oconto Co., 33 Wis. 134;
Hogg V. State, 52 Ala. 2; Blair v. State, 52 Ala. 343; Biland v. State,
52 Ala. 322; Bell's Adm'r v. Troy, 35 Ala. 184. Giving the requested
instruction "in connection with the general charge" is not a vio-
lation 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 question covered by requested instructions does not
violate the statute. Blair v. State, 52 Ala. 343; Hogg v. State, 52
Ala. 2.
(384)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 152
tion as to limit or weaken its force.-**^ In some jurisdic-
tions it is held that instructions should be given in the lan-
guage 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.^'* But though the
judge may limit himself to giving the instructions submitted
by counsel, it is entirely competent for him to prepare his
own charge, embodying the substance of all proper instruc-
tions asked by counsel, and such a practice will often result
in furnishing to the jury a terse, consecutive, 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.''^* Under the rule that the court is not
bound to follow the exact language of the request, while the
107 Eiland v. State, 52 Ala. 322.
i»8 People V. Williams, 17 Cal. 142 ; People t. Stewart, 75 Mich.
29; Babbitt v. Bumpus, 73 Mich. 338; Cook v. Brown, 62 Mich. 477;
Mynning v. Detroit, L. & N. R. Co., 59 Mich. 257; Mask v. State, 36
Miss. 77; Fells Point Sav. Inst, of Baltimore v. Weedon, 18 Md. 320;
Snively v. Pahnestock, 18 Md. 391. See, also, Hall v. Hall, 6 Gill &
J. (Md.) 386; Harman v. Shotwell, 49 Mo. 423.
169 Birmingham Fire Ins. Co. v. Pulver, 126 III. 329; City of Chi-
cago V. Moore, 40 111. App. 334; State v. Collins, 20 Iowa, 85; Key v.
Dent, 6 Md. 142; Bulkeley v. Keteltas, 4 Sandf. (N. Y.) 450. See,
also, Alexander v. Mandeville, 33 111. App. 589; Fowler v. Hoffman,
31 Mich. 215. It is not good practice for the court to charge the
jury In chief, and then give all the instructions asked by either
party. "A clear and distinct enunciation of the law" should be given.
Wilson Sewing Mach. Co. v. Bull, 52 Iowa, 554,
(385),
25 — Ins. to Juries.
I) 153, INSTRUCTIONS TO JURIES. [Ch. 13
court may modify the phraseology, it must not alter the
sense/®" or change the language so as to render the instruc-
tion misleading,**^ or so as to obscure its vital point,* *^ or
essentially weaken its force.*** Counsel have a right to a
clear formulation of every important view of the law, either
as they drew it up, or in some equally proper form.*®* The
charges as given must cover all the points of the instructions
requested.**® Failure to charge in the exact language of the
request may be, in many cases, mere harmless error, and not
ground for reversal.*** Thiis, where the instructions given
160 Jamson v. Quivey, 5 Cal. 490; Russel v. Amador, 3 Gal. 400;
Conrad v. Lindley, 2 Cal. 173; Chicago & W. I. R. Co. v. Bingen-
heimer, 116 111. 226; Chicago, B. & Q. R. Co. v. Dickson, 88 111. 431;
Kinney v. Laughenour, 89 N. C. 368; Brink v. Black, 77 N. C. 59.
161 Russel V. Amador, 3 Cal. 400; Baltimore & 0. R. Co. v. Laf-
fertys, 14 Grat. (Va.) 478.
162 parrish v. Bradley, 73 Mich. 610.
163 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.
104 Campau v. Dubois, 39 Mich. 274.
165 People V. Dodge, 30 Cal. 448; Alexander v. Mandeville, 33 IlL
App. 589; City of Chicago v. Moore, 139 111. 201, affirming 40 IlL
App. 332; Missouri Pac. Ry. Co. v. Cassity, 44 Kan. 207; State v.
Carr, 25 La. Ann. 407; State v. Reed, 62 Me. 129; State v. Barnes,
29 Me. 561; Mynning v. Detroit, L. & N. R. Co., 59 Mich. 258; Cam-
pau V. Dubois, 39 Mich. 274; State v. St. Louis Brokerage Co., 85
Mo. 411; Coleman v. Roberts, 1 Mo. 97; Newbern Com'rs y. Dawson,
32 N. C. 436; McDonald v. Carson, 94 N. C. 507; Rancher v. Wynne,
86 N. C. 268; Duncan v. Sherman, 121 Pa. 520; Baltimore & 0. R.
Co. V. Laffertys, 14 Grat. (Va.) 478. Where instructions present the
law of the case with reasonable accuracy, 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.
166 Lafayette, M. & B. R. Co. v. Murdock, 68 Ind. 137; Blnns v.
State, 66 Ind. 428; Kramer v. Warth, 66 Ind. 548; Hadley v. Prather,
64 Ind. 137; Jones v. State, 64 Ind. 473; 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;'
(386)
Ch. 13j REQUESTS FOR INSTRUCTIONS. § 153
•were more favorable than those requested and refused, the
error, if any, in refusing to give the instructions as requested
is harmless, and not ground for reversal.'"^ But in Ala-
bama and Ohio it is held that the statute is peremptory, and
that the doctrine of error without injury cannot be applied
to a refusal to charge in the terms of the request.*'^
§ 153. Same — ^Digest of decisions.
"Counsel have a right to require of the court to give an instruc-
tion as asked, when the same is in conformity with the law; and
if, in the opinion of the court, the jury may not fully comprehend,
or may be misled by, such instructions, unless explained, it is
then the province of the court to give such additional instructions
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 below will not, for that reason alone, be disturbed."
State v. Wilson, 2 Scam. (111.) 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 doubtful. Turner v.
State, 4 Lea (Tenn.) 208; Lawless v. State, 4 Lea (Tenn.) 173.
Nelson V. Hardy, 7 Ind. 364; Taber v. Hutson, 5 Ind. 322; Lawrence-
burgh & U. M. R. Co. V. Montgomery, 7 Ind. 474; Abrams v. Smith,
8 Blackf. (Ind.) 95; Gentry v. Bargis, 6 Blackf. (Ind.) 261; Norris
V. Kipp, 74 Iowa, 444; Hall v. Hall, 6 Gill & J. (Md.) 386; Smith v.
St. Paul & D. R. Co., 51 Minn. 86; Green v. Hughitt School Tp., 5
S. D. 452; Dillingham v. Fields, 9 Tex. Civ. App. 1; Trezevant v.
Rains (Tex. Civ. App.) 25 S. W. 1092; Andrea v. Thatcher, 24 Wis.
471; Eldred v. Oconto Co., 33 Wis. 134; Rogers v. Brightman. 10
Wis. 55; Schools v. Risley, 10 Wall. (U. S.) 115; Mason v. H. Whit-
beck Co., 35 Wis. 164; Grace v. Dempsey, 75 Wis. 313, 43 N. W. 1127.
167 Dillingham v. Fields, 9 Tex. Civ. App. 1; Watson v. Com., 87
Va. 608.
108 East Tennessee, V. & G. R. Co. v. Bayliss, 77 Ala. 429 ; Biland
V. State, 52 Ala. 322; Carson v. State, 50 Ala. 134; Williams 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 S. & C.
P. Dec. 119. Compare Sawyer v. Lorillard, 48 Ala. 333.
(387)
§ 153 INSTRUCTIONS TO JURIES. [Ch. 13
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 between the same parties,
which had previously been adjudicated in the latter court, is error.
Pugh V. McCarty, 44 Ga. 383. "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." Crowell v. Peo-
ple, 190 111. 508. 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. Lang v. State, 16 Lea (Tenn.) 433.
"When an instruction asked presents the law accurately, the court
ought always to give it in the very words asked, especially in crim-
inal cases," though failure to Bo so is not necessarily a ground
for reversal. People v. Williams, 17 Cal. 142. "The prayer was
that every link in, the chain of circumstantial evidence must be
as satisfactorily proved as the main fact of the murder, and the
judge in reply said that, in a case in which the jury are asked
to convict on circumstantial evidence, they must be fully satis-
fled of every link in the chain. It was held to be a substantial
compliance with the prayer." State v. Bowman, 80 N. C. 432.
Where, in a prosecution for forcible trespass, the court charges
"that there must be a sufiicient display of force to intimidate, or
such as was calculated to produce a breach of the peace, and that
they must judge from all the facts whether there had been a sufii-
cient 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 dis-
play 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. "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
Lumbel- Co., 79 Mich. 307.
(388),
Ch. 13] REQUESTS FOR INSTRUCTIONS. | 154
§ 154. Modification of' requested instruetions.
The duty of the court to follow the language of a request,
where the requested instruction was in all respects correct,
has been considered in the preceding sections.^^* Where
a requested instruction is incorrect, or for any reason should
not be given, the court may, as has been seen, refuse to give
it, but it is not bound to do so, and may, if it sees fit, modify
the instruction so as to make it state the law correctly, or
remove any other objection to the instruction as proposed,
and then give the charge as modified.^^" Indeed, it has
i6» See ante, §§ 153, 154.
1") Alabama: Elland v. State, 52 Ala. 330. See, also, Morris v.
State, 25 Ala. 57.
California: "People v. Dolan, 96 Cal. 315; People v. Hall, 94 Cal.
595; People v. Cotta, 49 Cal. 166; People v. Davis, 47 Cal. 93; King
V. Davis, 34 Cal. 100; People v. Williams, 32 Cal. 280; Boyce v. Cali-
fornia Stage Co., 25 Cal. 460; People v. Methever, 132 Cal. 326.
Connecticut: State v. Duffy, 66 Conn. 551; Marlborough v. Slsson,
23 Conn. 55.
Florida: Evans v. Givens, 22 Fla. 476.
Georgia: Lacewell v. State, 95 Ga. 346; Doe d. Stephens v. Roe,
37 Ga. 289; Ray v. State, 15 Ga. 223.
Illinois: Kadgin v. Miller, 13 111. App. 474; Cohen v. Schick, 6
111. App. 280; Doggett v. Ream, 5 111. App. 174; Town of Earlville v.
Carter, 2 111. App. 34; Bannister v. Read, 1 Gilm. 92; Bland v. Peo-
ple, 3 Scam. 364; Sanitary Dist. of Chicago v. City of Joliet, 189
111. 270; Village of Cullom v. Justice, 161 111. 372; Kreigh v. Sher-
man, 105 111. 49; Kimmel v. People, 92 111. 457; Meyer v. Mead, 83
111. 19; Trustees of Schools v. McCormick, 41 111. 323; Hovey v.
Thompson, 37 111. 538; Morgan v. Peet, 32 111. 281; Galena & C. U.
R. Co. V. Jacobs, 20 111. 478; Wells v. Ipperson, 48 111. App. 580; Cary
V. Norton, 35 111. App. 365; Terre Haute & I. R. Co. v. Voelker, 31 111.
App. 324; City of Chicago v. Moore, 139 111. 201; Chicago, B. & Q. R.
Co. V. Perking, 125 111. 127; Jansen v. Grimshaw, 125 111. 468.
Indiana: Chicago, St. L. & P. R. Co. v. Spilker, 134 Ind. 380;
Musgrave v. State, 133 Ind. 297; Sherfey v. Evansville & T. H. R.
Co., 121 Ind. 427; Smith v. State, 117 Ind. 167; Louisville, N. A. &
C. Ry. Co. V. Hubbard, 116 Ind. 193; City of Logansport v. Dyke-
man, 116 Ind. 15; Bishop v. Welch, 54 Ind. 527; Over v. Schiffling,
(389)
§ 154 INSTRUCTIONS TO JURIES. [Ch. 13
been said to be the duty of the court, wben not entirely sa't-
isfied with the instructions requested, to prepare other in-
102 Ind. 191; Board Com'rs Howard Co. v. Legg, 93 Ind. 523; Lake
Erie & W. R. Co. v. Arnold, 8 Ind. App. 297. See, also, Taylor v.
Wootan, 1 Ind. App. 188.
Iowa: Large v. Moore, 17 Iowa, 258; Keenan v. Missouri State
Mut. Ins. Co., 12 Iowa, 126; State v. Gibbons, 10 Iowa, 117; Abbott
V. Striblen, 6 Iowa, 191; Paukett v. Livermore, 5 Iowa, 280; Tifield
V. Adams, 3 Iowa, 487.
Kansas: Evans v. Lafeytb, 29 Kan. 736; Reed v. Golden, 28 Kan.
632 ; St. Joseph & D. C. R. Co. v. Chase, 11 Kan. 47.
Kentucky: Pleak v. Chambers, 7 B. Mon. 569.
Michigan: Evans v. Montgomery, 95 Mich. 497; Weimer v. BUn-
bury, 30 Mich. 201; American Merchants' Union Exp. Co. v. Phil-
lips, 29 Mich. 515.
Minnesota: Bartlett v. Hawley, 38 Minn. 308; " Blackman v.
Wheaton, 13 Minn. 326 (Gil. 299); Dodge v. Rogers, 9 Minn. 223
(Gil. 209).
Mississippi: Doss v. Jones, 5 How. 158; Doe d. Vick v. Peck, 4
How. 407; Cicely v. State, 13 Smedes & M. 202; Boles v. State, 9
Smedes & M. 284; Brown v. State,. 72 Miss. 990; Scott v. State, 56
Miss. 289; White v. State, 52 Miss. 216; Archer v. Sinclair, 49 Mies.
343; Wilson v. Kohlheim, 46 Miss. 346.
Missouri: State v. Ott, 49 Mo. 326; Kaw Brick Co. v. Hogsett, 82
Mo. Appi 546.
Nebraska: Tracey v. State, 46 Neb. 361.
Nevada: State v. Watkins, 11 Nev. 30; State v. Smith, 10 NeT.
123; Gerhauser v. North British & Mercantile Ins. Co., 7 Nev. 174;
State V. Davis, 14 Nev. 407.
New York: Knickerbocker v. People, 57 Barb. 365; Stewart v.
New York, O. & W. R. Co., 54 Hun, 638, 8 N. Y. Supp, 19.
North Carolina: State v. Horton, 100 N. C. 443; OvercashT.
Kitchie, 89 N. C. 384.
Ohio: Avery v. House, 2 Ohio Cir. Ct. R. 246.
Pennsylvania: Yardley v. Cuthbertson, 108 Pa. 395; Killion ▼.
Power, 51 Pa. 429; Hays v. Paul, 51 Pa. 134; Lloyd v. .Carter, 17 Pa.
216,; Amer v. Longstreth, 10 Pa. 145.
South Carolina: Fletcher v. South Carolina & G. Extension R.
Co., 57 S. C. 205.
Texas: Brownson v. Scanlan, 59 Tex. 222.
Utah: Clampitt v. Kerr, 1 Utah, 246.
(390)
Ch. 13] REQUESTS FOR INSTRUCTIONS. " § 155
strnctions wliicli will properly submit the case to the jury.^'^^
Even under a statute prohibiting the modification of request-
ed instructions, the modification of an erroneous instruc-
tion asked, though in disregard of the statute, is not ground
for reversal, unless the party asking the instruction was in-
jured by the modification.-'''^^ Of course, the modification
made by the court must not be such as to render the instruc-
tions as given erroneous, misleading, or otherwise objection-
able.''''* A correct instruction should not be modified unless
the modification is supported by the evidence, and it is error
to do so."*
5 155. Same — Particular modifications considered.
A modification which does not change the meaning is not
erroneous.^^® The mere addition of a legal principle, perti-
nent and proper to be considered with the facts of the case,
Virginia: Rosenbaums v. Weeden, 18 Grat. 785.
Washington: State v. Robinson, 12 Wash. 491.
United States: Smith v. Carrington, 4 Cranch, 62.
m Bell's Adm'r v. Troy, 35 Ala. 185; Kadgin v. Miller, 13 111.
App. 474; State v. Jones, 61 Mo. 232; Harman v. Shotwell, 49 Mo.
423; Wilson v. Kohlheim, 46 Miss. 346; Phifer v. Alexander, 97 N.
C. 335. "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 tru^ extent of his
right." Amer v. Longstreth, 10 Pa. 145.
i72Pranke v. Riggs, 93 Ala. 252; Eiland v. State, 52 Ala. 330 y
Sawyer v. Lorillard, 48 Ala. 333; Dupree v. State, 33 Ala. 380; Mor-
ris V. State, 25 Ala. 57; Dillingham v. Fields, 9 Tex. Civ. App. 1;
Grace v. Dempsey, 75 Wis. 313; Mason v. H. Whitbeck Co., 35 Wis.
164.
iTsOrr V. Jason, 1 111. App. 446; State v. Green, 20 Iowa, 424.
174 Shelby v. OfEutt, 51 Miss. 128; Walker v. Stetson, 14 Ohio St.
89; Bain v. Wilson, 10 Ohio St. 14.
176 People V. Davis, 47 Cal. 93; Chicago, R. I. & P. Ry. Co. v. Kin-
nare, 190 111. 9; Richelieu Hotel Co. v. International Military En-
campment Co., 140 111. 248; Moore v. Chicago, B. & Q. Ry. Co., 65
(391)
§ ISS INSTRUCTIONS TO JURIES. [Ch. 13
is not error. ■'^® Mere repetitions and reiterations/''^ or un-
necessary and irrelevant matters, mdy be stricken out.*''*
Wliere an instruction as requested is ambiguous, obscure, in-
volved, or misleading, it is proper for the court to modify
it so as to make it intelligible, or to give additional instruc-
tions properly presenting the case to the jury.*''* The ad-
dition of a proper explanation is not error.**" The court
may add such observations as are necessary to show the proper
application of the principle to the case in hand.*** A modi-
Iowa, 505; Reed v. Golden, 28 Kan. 632; John Deere Plow Co. v.'
Sullivan, 158 Mo. 440; State v. Fannon, 158 Mo. 149; State v. Powc
ers, 59 S. C. 200; State v. Smith, 10 Nev. 123. See, also, ante, § 152.
176 People V. Davis, 47 Cal. 93; Meyer v. Mead, 83 111. 19; Reed v.
Golden, 28 Kan. 632; Pleak v. Chambers, 7 B. Mon. (Ky.) 569.
177 Gerhauser v. North British & Mercantile Ins. Co., 7 Nev. 174.
178 People V. Cotta, 49 Cal. 166; Sherfey v. Bvansvile & T. H. R.
Co., 121 Ind. 427.
i78Eiland v. State, 52 Ala. 330; Bell's Adm'r v. Troy, 35 Ala.
185; People v. Dolan, 96 Cal. 315; Trustees of Schools v. McCor-
mick, 41 111. 323; Kadgin v. Miller, 13 111. App. 474; Cohen v.
Schick, 6 111. App. 280; Evans v. Lafeyth, 29 Kan. 736; Pleak v.
Chambers, 7 B. Mon. (Ky.) 569; American Merchants' Union Exp.
Co. V. Phillips, 29 Mich. 515; State v. Davis, 14 Nev. 407; Gaudette
V. Travis, 11 Nev. 149; State v. Watkins, 11 Nev. 30; State v.
Smith, 10 Nev. 106; Knapp v. King, 6 Or. 243; Com. v. McMurray,
198 Pa. 51; Womack v. Circle, 29 Grat. (Va.) 192; Keen's Bx'r v.
Monroe, 75 Va. 424; Dodge v. O'Dell's Estate, 106 Wis. 296.
180 State V. DuflEy, 66 Conn. 551; Needham v. People, 98 111. 275;
Reinback v. Crabtree, 77 111. 182; Meserve v. Delaney, 105 111. 53;
Overeash v. Kitchie, 89 N. C. 384. 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 science, 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 scientific metEod,
he so charged. He then gave counsel an opportunity for explana-
tion. It was held no error. Stewart v. New York, 0. & W. R. Co..
B4 Hun (N. Y.) 638.
181 State V. Duffy, 66 Conn. 551; Green v. State, 28 Miss. 687;
Lloyd V. Carter, 17 Pa. 216; Reed v. Newcomb, 64 Vt. 49. It is not
(393)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 156
fication which merely requires the jury to determine the is-
sue from all the evidence in the case,^^^ or which confines
the jury to the evidence, or conforms the instructions to the
pleadings,^®^ or which adds a cautionary statement of an ab-
stract principle of law, is not error ;^** and, of course, where
abstract instructions have been given tending to mislead 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 modifi-
cation.**^ A, modification to make the instruction harmo-
nize with other instructions requested by the same party is
not errsneous.-'**
i 156. Same — Harmless error.
Where the modification of an instruction could not* have
misled the jury to the injury of the plaintiff in error, the
judgment will not be reversed.-'*'^ A modification rendering
error for the court, after answering a point affirmatively, to qualify
it by stating that, If the facts -were different from fhose assumed,
the law would be otherwise. Columbia Bridge Co. v. Kline, Brightly
N. P. (Pa.) 320, 4 Clark, 39; Lloyd v. Carter, 17 Pa. 216.
i82Meserve v. Delaney, 105 111. 53; Kreigh v. Sherman, 105 111. 49.
183 Evans v. Givens, 22 Pla. 476; Kimmel v. People, 92 111. 457;
Terre Haute & I. R. Co. v. Voelker, 31 111. App. 314; Smith v. State,
117 Ind. 167; Large v. Moore, 17 Iowa, 258; Shelby v. OfEutt, 51
Miss. 128; O'Neil v. Capelle, 66 Mo. 296; Newby v. Chicago, R. I.
& P. Ry. Co., 19 Mo. App. 391; Hays v. Paul, 51 Pa. 134; Killion v.
Power, 51 Pa. 429.
184 Yardley v. Cufhbertson, 108 Pa. 395.
185 Trustees of Schools v. McCormick, 41 111. 323; Bannister v.
Read, 1 Gilm. (111.) 92; Blackman v. Wheaton, 13 Minn. 326 (GiL
299); Gaudette v. Travis, 11 Nev. 149.
188 Feary v. Metropolitan St. Ry. Co., 162 Mo. 75.
i87Meserve v. Delaney, 105 111. 53; Reinback v. Crabtree, 77 IlL
182; Howard F. & M. Ins. Co. v. Cornick, 24 111. 455; Bartlett v.
Hawley, 38 Minn. 308; Alexander v. Richmond & D. R. Co., 112 N.
C. 720.
(393)' ,
§ 157 INSTRUCTIONS TO JURIES. [Ch. 13
the instruction more favorable than the one asked is, at most,
harmless error as respects the party making the request.''*^
It has been held that no modification of an erroneous instruc-
tion can be assigned as error by the party asking the instruc-
tion, because the court might have wholly refused to give
such instruction.^*^ 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 erroneous, and open to
objection from either party.^^" A proviso qualifying an
instruction to the prejudice of the party asking it is re-
versible error. •'^■^
§ 157. Same — Manner of making modification.
In some states the court is forbidden to modify instruc-
tions by interlineation or erasure,^ ®^ and in all states good
188 King V. Rea, 13 Colo. 69; Watson v. Com., 87 Va. 60S.
189 Louisville, N. O. & T. Ry. Co. v. Suddoth, 70 Miss. 265, wherein
the court said: "It may be admitted that the instruction, as modi-
fied, imposed upon the defendant too great a degree of care to
avoid injury to the animal after its danger was discovered, and
was therefore erroneous; but this will avail nothing unless the
instruction, as asked, was correct. If the defendant was not con-
tent with the instruction as modified, it should have declined to
read it to the jury. No modification of an erroneous instruction
can be assigned for error by the party asking the instruction, for
the court might refuse such instruction outright. One who is en-
titled to nothing cannot complain 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, dis-
charged the defendant from any precedent negligence."
i90O'Niel V. Orr, 4 Scam. (111.) 1; Morgan v. Peet, 32 111. 288;
Town of Earlville v. Carter, 2 111. App. 34. See Abbott v. Striblen,
6 Iowa, 191; State v. Gibbons, 10 Iowa, 117.
i»i Little Rock Traction & Electric Co. v. Trainer, 68 Ark. 106;
"Wells V. Turner, 16 Md. 133.
192 Ham V. Wisconsin, I. & N. R. Co., 61 Iowa, 720; Phillips v.
(394)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 157
practice requires that it shall distinctly appear what the in-
struction asked and given is, and what the qualification is,
so that exceptions may be properly saved for review;'®^ but
a disregard of the prohibition is not ground for reversal un-
less an exception was saved, and it appears that the party
Starr, 26 Iowa, 349; Tracey v. State, 46 Neb. 370; Daly v. Bern-
stein, 6 N. M. 380. "The statute points out the mode in which In-
structions may be modified, and prohibits this from Bfeing done 'by
Interlineation or erasure.' Revision, § 3053. The first instruction
asked by the plaintiff has Indorsed on the margin, 'Given as modi-
fled;' with this memorandum by the clerk: 'The words under-
scored are added by the judge, and those with a pencil mark
through them are erased by the judge. T. A. Bereman, Clerk." We
cannot act upon any such certificate. The clerk Is not authorized
to make it. How dangerous it would be to allow a clerk to certify
that the judge erased portions of instructions by drawing pencil
marks through them. We are not disposed to be overnice in mat-
ters of practice. Every lawyer knows how important — how vital —
a part of a cause the Instructions are. It is a wise provision of
the statute which forbids interlineations and erasures in modify-
ing instructions asked, and It should be followed; at least, if modi-
fications are made in this way, the judge, and not the clerk, should
certify in what they consist." Phillips v. Starr, 26 Iowa, 352.
193 King V. Davis, 34 Cal. 100; Bishop v. Welch, 54 Ind. 527; Ham
V. Wisconsin, I. & N. Ry. Co., 61 Iowa, 720; Campbell v. Fuller, 25
Kan. 723; Exchange Bank v. Cooper, 40 Mo. 169; Meyer v. Pacific
R. Co., 40 Mo. 151. Modification of instructions asked may be made
by cutting off a part of the sheet on which the instruction is writ-
ten, notwithstanding the particular provisions of Code 1873, § 2785,
as to the method of making modifications. Ham v. Wisconsin, I. &
N. R. 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 entirely correct, or are
unauthorized by the facts in the case, yet, when the matters in-
volved In the qualification made by the judge are entirely 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.
(395)
§ 1S8 INSTRUCTIONS TO JURIES. [Ch. 13
complaining may have been prejudiced.^^* The fact that
the erasure left the words stricken out still legible is im-
material.^®" 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 re-
gard is not so material as to justify a reversal.^®*
§ 158. Same — Digest of decisions.
In the following charge: "The jury are instructed that the fol-
lowing 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 con-
scious thereof, persons who commit the act charged through mis-
fortune or by accident, when it appears that there was no evil de-
sign, intention, or culpable negligence; and if the jury are satis-
fled beyond a reasonable doubt, by the evidence in this case, that
the defendant, when he killed the deceased, was either a lunatic
or an insane i>erson [as Insanity' is defined in these instructions],"
— it was proper to insert, after the words "insane person," the
words "as insanity is defined in these instructions." People v.
Methever, 132 Cal. 326. Where an instruction is requested that
"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, where it
184 Campbell v. Fuller, 25 Kan. 723; Tracey v. State, 46 Neb. 361;
Daley v. Bernstein, 6 N. M. 380; Denver & R. G. Ry. Co. v. Harris,
3 N. M. (Gild.) 114, 3 N. M. (Johns.) 109.
i96Union Ry. & 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, Gerhauser v. North British
& Mercantile Ins. Co., 7 Nev. 174.
ise Manrose v. Parker, 90 111. 581.
(396)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § 153
appears that there was no evil design. Intention, or culpable neg-
ligence; and If the jury are satisfied beyond a reasonable doubt,
by the evidence in this case, that the defendant, when he killed
the deceased, was either a lunatic or an insane person," — the elim-
ination of the wgrds, "beyond a reasonable doubt," la clearly proper,
as the law does not demand that measure of proof in order that
insanity may be established. People v. Methever, 132 Gal. 326. A
requested instruction in a criminal case, that every witness, in-
cluding 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 flisputable, and the jury are
the sole judges of eredibility and of the weight of the evidence,
and that they may consider the interest, conduct, and demeanor of
a witness. People v. Dolan, 96 Cal. 315. Striking out from a re-
quested charge on credibility of witnesses the words, "from the ap-
pearance of the witnesses on the stand," is harmless error, the
charge, as left, stating that the jury "have the right to determine.
* * * from their manner of testifying, their apparent candor
and fairness, their apparent intelligence or lack of intelligence, 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, affirming 92 111. App. 91. "On the trial
of one for robbery, the court was asked on the part of the defend-
ant to instruct the jury that 'concealment 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 determin-
ing the question of participation.' Held, that there was no error
in the modification." Needham v. People, 98 111. 275. "An in-
struction which attempts to tell the jury that a plaintiff cannot re-
cover 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 in-
juries not connected with such present condition." Village of Cul-
lom V. Justice, 161 111. 372. Where, in an action for personal in-
juries, an instruction was asked that the failure of plaintiff to per-
form certain acts would constitute a bar tq recovery, thereby tell-
ing the jury that such omission would constitute negligence, it was
proper to substitute an instruction, "the law required of the plain-
tiff that she should exercise ordinary care for her safety." City
of Chicago v. Moore, 139 111. 201. The court read the jury an in-
struction asked, and then, misliking the last sentence, struck it out,
told the jury he would read it again, and did so without said sen-
tence. If was held no error. Wells v. Ipperson, 48 111. App. 580.
(397)
§ 158 INSTRUCTIONS TO JURIES. [Ch. 13
"Parties have a right to require the court to give an instruction
as asked, when it is in conformity with the law, and if, in the
opinion of the court, the jury may be misled by such instruction,
unless explained, it is the province of the court to give such fur-
ther instructions as may obviate the danger of misapprehension;
but it is error to add to an instruction upon one point of the case
words directing the jury as to other branches of the case." Cohen
V. Schick, 6 111. App. 280. "The court may modify instructions
asked, even after indicating, according to the requirement of the
statute, what instructions would be given and what refused." City
of Logansport v. Dykeman, 116 Ind. 15, 26; Louisville. N. A. & C.
Ry. Co. V. Hubbard, 116 Ind. 193. "It would be a travesty upon the
administration of justice if a court was compelled to give an er-
roneous instruction, simply because it had acted incautiously in
indicating what instructions would be given." City of Logansport
v. Dykeman, supra. The following instruction was properly modi-
fied 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] imply malice; and if they are not satisfied that
the prosecution was instituted or carried on through malice [ex-
press or implied], they will find for the defendant." Paukett v.
Livermore, 5 Iowa, 280. "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 it apply
to a special verdict. Indeed, the court might in such a case refuse
the instruction entirely." St. Joseph & D. C. R. Co. v. Chase, 11
Kan. 47. A party requested a charge that the measure of damages
was the cash value of the property in question. 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 befor,e the
jury. Weimer v. Bunbury, 30 Mich. 201. In a civil action, a re-
quest 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."
Evans v. Montgomery, 95 Mich. 497. "A plaintiff asked a certain
Instruction, 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 de-
fendant.' The instructions referred to were correct. Held, that
the sole effect of this modification was to call the attention of the
jury, perhaps unnecessarily, to the defendant's Instructions, but
in itself is not sufl3cient to cause a reversal of the case." Mbyers
(398)
Ch. 13] REQUESTS FOR INSTRUCTIONS. § l£8
V. Columbus Banking & Ins. Co., 64 Miss. 48. 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." Brown
V. State, 72 Miss. 990. 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 aggrava-
tion of damages. Doss v. Jones, 5 How. (Miss.) 158. On an issue
whether defendants, as insurance brokers, had agreed to keep
plaintiff's property insured, a requested instruction that, "if de-
fendants were the agents of plaintiff for the purpose of keeping
plaintiff insured," certain consequences followed, was properly modi-
fied to read, "if defendant agreed with plaintiff to keep the plain-
tiff insured," since the instruction as requested left the jury to de-
termine a question of law. Kaw Brick Co. v. Hogsett, 82 Mo. App.
546. Where the judge refused to charge that mere possession of
stolen property was not prima facie evidence of commission of the
burglary by prisoner, but, on exception taken, at once added, "Pos-
session of the property immediately after commission of the of-
fense is prima facie evidence of guilt," it was held that the ruling
on the request to charge was qualified by the substituted instruc-
tion. Knickerbocker v. People, 57 Barb. (N. Y.) 365. "The de-
fendant asked a special instruction, beginning: 'If the jury believe
the testimony of S. W.,' etc. The judge gave the instruction thus:
'If the jury believe from the testimony of S. W.,' etc. 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." State V. Horton, 100 N. C. 443. A charge as follows is
erroneous: "The defendants ask that we give you in charge the
following, which we give you as correct general propositions of
law, except so far as modified by the general charge of the court."
The part which is not correct should have been stricken out or
rectified. Avery v. House, 2 Ohio Cir. Ct. Rep. 246. The court may
append explanation in writing to instruction requested. Knapp v.
King, 6 Or. 243. The court is not bound to address instructions
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 be-
yond a reasonable doubt was properly modified by striking out the
qualifying words. State v. Robinson, 12 Wash. 491.
(399)
CHAPTER Xr7.
NUMBERING AND SIGNING INSTRUCTIONS.
f 159. Numbering Instructions.
160. Signing by Party or Counsel. . > v ' '
j 161. Signing by Court.
§159. Niimt>eriiig mstructions.
In a few states, statutes exist requiring requests for in-
structions, and instructions given by the court, to be num-
bered. The object of the requirement is to promote the
convenience of the court and parties in saving exceptions to the
instructions given or refused.^ A failure to number requests
as required is su:^cient ground for refusing them, though
otherwise they are correct;^ but a failure to number the in-
structions given may be harmless ei-ror, and therefore not
ground for reversal,* and the error is waived by a failure to
make and save a timely objection and exception.* As re-
iteration is a fault to be avoided, it is highly proper that
modifications of numbered instructions should be given by
instructions of a different number."
5 160. Signing by party or counsel.
In a few states, requests for instructions must be signed
by party or counsel, and, as has been seen, a noncompliance
iMoffatt V. Tenaey, 17 Colo. 189; Kansas Pac. Ry. Co. v. Ward, 4
Colo. 36.
2 Coryell v. Stone, 62 Ind. 308.
3 Miller v. Preston, 4 N. M. (Johns.) 314, 4 N. M. (Gild.) 396.
4 See post, c. 32, "Appellate Review of Instructions."
5 Columbia & P. S. R. Co. v. Hawthorn (Wash.) 19 Pac. 25.
(400) ■
Ch. 14] NUMBERING AND SIGNING. § 161
with this requirement is ground for refusing to give the in-
structions requested.* On the other hand, unless an excep-
tion is saved, error cannot be assigned to the giving of an
ilistruction not signed by counsel.'^ And it has been held not
reversible error to give a requested charge, though unsigned
by counsel, where the judge officially signs it, and marks it
"Given."® Under such a statute, it is not error to permit the
instructions to go to the jury signed by counsel.*
S IGl. Signing by court.
Unless required by statute, the signature of the trial judge
to the instructions is not necessary.-'*' Under a statute re-
quiring the judge to charge the jury in writing, and that the
charge shall be filed among the papers in the case, but not in
terms requiring the judge to sign the instructions, or to give
the paper containing the instructions to the jury, the failure
of the judge to sign the instruction is not error where no
one has requested that such paper be given the jury.^^ In
a few states, statutes exist requiring the judge to sign the in-
structions 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.*^ In other
states, the judgment will not be reversed for this cause alone,
unless it may have resulted in prejudice to the appellant,^ ^
« See ante, § 141, "Signing by Party or Counsel."
' Little V. State, 58 Ala. 265.
8 Galveston, H. & S. A. Ry. Co. v. Neel (Tex. Civ. App.) 26 S. W.
788.
» Schmidt v. First Nat. Bank of Denver, 10 Colo. App. 261.
10 Hunter v. Parsons, 22 Mich. 96.
11 State v. Davis, 48 Kan. 1.
12 Tyree v. Parham's Bx'r, 66 Ala. 424; Fridenberg v. Robinson, 14
Pla. 130; Baker v. State, 17 Fla. 410.
Instate V. Stanley, 48 Iowa, 221; State v. McCombs, 13 Iowa, 426;
(401)
26 — Ins. to 'Juries.
§ 161 INSTRUCTIONS TO JURIES. [Ch. 14
except in Texas, where, in cases of felony, a stricter rule is
applied, and a failure to sign the instructions is reversible
error, regardless of actual prejudice.** 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 7th Judicial Circuit. To which ruling of the
court the defendant then and there excepted. E. K. Foster,
Judge 7th Judicial Circuit. [L. S.]"** 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.**
Parker v. Chancellor, 78 Tex. 524; Dillingham v. Bryant (Tex.
App.) 14 S. W. 1017.
1* Smith V. State, 1 Tex. App. 416; Longino v. Ward, 1 White &
W. Civ. Cas. Ct. App. § 522; Hubbard v. State, 2 Tex. App. 506.
16 Carter v. State, 22 Fla. 553.
16 Parker v. Chancellor, 78 Tex. £28.
(402)
CHAPTEE XV.
PRESENTATION OP INSTRUCTIONS TO JURY.
{ 162. Hatters Elsewhere Considered.
163. Time of Delivering Instructions.
164. Reading from Statutes.
165. Reading from Text Books.
166. Reading from Reported Decisions.
167. Diminishing or Weakening Effect of Instructions by Words
or Actions.
168. Giving Undue Importance to Instructions by Words or Ac-
tions.
169. Unduly Emphasizing Proposition of Law by Repetition.
170. Manner and Emphasis of Judge in Giving Instructions.
171. Stating Reasons for Giving or Refusing Instructions.
S 162. ]aa4;ters elsewhere considered.
Several matters which might very properly have been con-
sidered in this connection have been elsewhere treated in,
this work. Thus, the necessity of instructing in writing haa
been considered in a chapter by itself.^ The necessity of
marking instructions "Given" or "Refused," and th« disposi-
tion of requests for instructions generally, have been con-
sidered in the chapter on "Requests for Instructions."^ The
necessity of signing and numbering instructions has also been
made the subject of a special chapter.* There remain a
few other considerations which may be conveniently treated
here.
1 See ante, c. 10.
» See ante, c. 11.
t See ante, c 12.
(403):
g 163 ' INSTRUCTIONS TO JURIES. [Ch. IS
§ 163. Time of delivering instructioas.
In some states the court is required to instruct the jury
before the beginning of the argument;* but notwithstanding
such a statute, the court may, in its discretion, after the ar-
gument, "correct or qualify any statement of counsel that is
liable to mislead the jury."^ But ardditional 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.' In other states the statute requires the instructions
to be given after the arguments of counsel are concluded.'
"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."* Where a charge in writing is requested, the
judge is not bound to give it at once, but may adjourn over
to another day to prepare it.® Instructions given by the
presiding judge in a criminal case, in the presence of the
* Kellogg V. Lewis, 28 Kan. 535; Mills' Ann. Code Colo. c. 14, §
187; 1 Horner's St. Ind. 1896, § 377. In Ohio, under Rev. St.
§ 7300, subd. 5, the court is not required, in a criminal case, to give
defendant's requests before the argument begins. Umbenhauer v.
State, 4 Ohio Cir. Ct. R. 378, disapproving McGuire v. State, 3 Ohio
Cir. Gt. R. 551.
B Kellogg V. Lewis, 28 Kan. 535. In Indiana, the statute expressly
provides that the court may give additional instructions at the close
of the argument. 1 Horner's St. Ind. 1896, § 377. It is not error
for the trial court to give additional instructions, or to modify
those already given, after the beginning of the argument. Wood v.
State, 64 Miss. 761. The giving of an instruction after the close of
the argument before the jury, although irregular, is not sufficient
ground for reversal where the giving of the instruction could work
no harm. Cluskey v. City of St. Louis, 50 Mo. 89.
e Foster v. Turner, 31 Kan. 58.
'Cleveland & E. Electric R. Co. v. Hawkins, 64 Ohio St. 391,
holding that Rev. St. Ohio, § 5190, does not leave It discretionary
with the court to give instructions after the evidence is closed.
« Walton V. Hinnan, 146 Pa. 396.
» Head v. Bridges, 67 Ga. 227.
(404)
Ch. 15] PRESENTATION TO JURY. § 154
other judges, immediately after the proclamation of ad-
journment, but intended as the act of the court, are to be
regarded as the act of the court.*"
§ 164. Heading from statutes.
In giving instructions to the jury, the trial judge may
read or copy into its charge, as a part thereof, sections of the
statutes which apply to the facts of the case.'^* Even where
a part of the statute read is not relevant, the judgment will
not for that reason be reversed, unless it appears that some
substantial right of the party complaining has been affect-
ed.-'^ This principle is well illustrated in the following case :
On a prosecution "for robbery, an instruction was given, in
the language of the statute, defining the offense, and prescrib-
ing the punishment. It further gave the jury, in the lan-
guage of the statute, the more severe punishment if the de-
fendant 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 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 defend-
ant.-'* It has been said that an instruction is not neces-
10 state V. Bngle, 13 Ohio, 490.
"Simons v. State (Tex. Cr. App.) 34 S. W. 619; People v. Hen-
derson, 28 Cal. 465; People v. Galvin, 9 Cal. 115; Johnson v. Schultz,
74 Mich. 75; Miller v. Com. (Va.) 21 S. E. 499; Com. v. Harris, 16^
Pa. 619; Territory v. Mahaffey, 3 Mont. 116.
12'People V. Burns, 63 Cal. 614.
IS Needham v. People, 98 111. 275.
(405)
§ 166 INSTRUCTIONS TO JURIES. [Ch. 15
sarily correct because it uses the words of a statute, if the
use of those words, without explanation, has a tendency to
mislead ;^* hut if a construction of the language used is de-
sired, a request therefor must be made.-'^
i 165. Eeadlng from text books.
The court may also read to the jury an extract from a
text book as a part of its charge ; but while this is not an im-
proper method of expounding the law of the case,^® 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 discre-
tion of using language of its own choosing.^'' This is espe-
cially true where the requested instruction merely 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.^*
§ 166. Reading from reported decisions.
It is also proper for the court to read or embody in its
written charge extracts from reported decisions which cor-
rectly express the law applicable to the facts cf the case at
bar.^" It is proper to read that part of the opinion ren-
" State V. Laurie, 1 Mo. App. 371.
15 Town of Fox T. Town of Kendall, 97 111. 72.
i» People V. Nile?, 44 Mich. 606; Bronnenburg v. Charman, 80 Ind.
475.
" People V. Wayman, 128 N. Y. 585. See, generally, ante, § 152 et
Beq.
18 Walker v. Johnson, 96 U. S. 424. '
18 Estate of Spencer, 96 Cal. 448; Anderson v. McAleenan, 15
Daly (N. Y.) 444; People v. Minnaugh, 131 N. Y. 563; Panama R.
Co. V. Johnson, 63 Hun (N. Y.) 629; Cordell v. New York Cent. £
H. R. R. Co., 6 Hun (N. Y.) 461; Power v. Harlow, 57 Mich. 107;
Klrby v. Wilson, 98 111. 240; Johnson v. Baltimore & P. R. Co., 6
Mackey (D. C.) 232; Henry v. Klopfer, 147 Pa. 178; Hood v. Hood,
25 Pa. 417. Compare People v. McNabb, 79 Cal. 419, where the
(406)
Ch. IS] PRESENTATION TO JURY. g i(,6
dered on a previous appeal laying down the law applicable
to the case, care being taken not to state the result of the
former trial.^" Of course the evidence given in the pend-
ing cause must be substantially the same as that given on the
former trial to make it proper to quote the opinion of the
reviewing court as the law of the case.*' 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.*^ So it frequently hap-
pens that "the language of an opinion rendered in the de-
cision 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 applicable."^* The
court may. of course, add such further instructions or ex-
planations as are necessary to apply the opinions read to the
case at bar.** It is error to read a decision, and then state
that the case at bar is a similar case, as this amounts to the ex-
pression of an opinion on the evidence.*®
practice ol reading opinions in other cases to the jury as a part
of the charge of the court in a criminal case was advised against as
a dangerous practice. It is not error to read a case from the Re
ports as an illustration. State v. Chiles, 58 S. C. 47.
20 Power V. Harlow, 57 Mich. 107; Panama R. Co. v. Johnson, 63
Hun (N. Y.) 629.
21 Power V. Harlow, 57 Mich. 107.
22Laldlaw t. Sage, 80 Hun (N. Y.) 550. See, also, Cordell v. New
York Cent. & H. R. R. Co., 6 Hun (N. Y.) 461.
28 Btchepare v. Aguirre, 91 Cal. 288.
24 Freeman v. Weeks, 48 Mich. 255.
2e Frank v. Williams, 36 Fla. 136.
(407.)
I 167 INSTRUCTIONS TO JURIES. [Ch. 15
§ 167. Diminishing or weakening effect of instructions by
words or actions.
In giving requested instructions to the jury, the court
should not, by word or action, do anything which will have
a tendency to cause the jury not to give such instructions the
consideration and credit to which they properly are enti-
tled.^® Thus, where the court gave a requested instruction,
and accorapanied it with the following 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 preju-
dicial error.-^ And in submitting special questions by re-
quest it was held error to state : "I want the jury to under-
stand that these questions are got up to befuddle and mis-
lead the jury, so that there will be error in the trial of this
case, so that the verdict may be set aside."^* It is also im-
proper for the court to criticise the justice of the law as laid
down in the instructions.^® It is said to be better practice,
in giving requested instructions, not to state at whose request
they were given, but to give all proper instructions as emanat-
ing from the court itself.^" So it has been said to be better
not to state at whose request instructions were reduced to
writing.^^ Nevertheless, these errors, if such they may be
termed, will not be sufficient ground for reversal if no in-
jury is shown.*^ Where the court lays down the law appli-
28 Stebbins v. Keene Tp., 55 Mich. 552; Watson v. Union Iron &
Steel Co., 15 111. App. 509; Horton v. Williams, 21 Minn. 187; Head
V. Bridges, 67 Ga. 227; Sieling v. Clark, 18 Misc. Rep. (N. Y.) 464.
2T Horton v. Williams, 21 Minn. 187.
28 Cone V. Citizens' Bank, 4 Kan. App. 470.
29 Stebbins v. Keene Tp., 55 Mich. 552.
30 Stevenson v. Chicago & N. W. Ry. Co., 94 Iowa, 719. See, also.
State V. Pitts, 11 Iowa, 343.
31 Head v. Bridges, 67 Ga. 235; Wilson v. White, 71 Ga. 507.
82 Wilson V. White, 71 Ga. 507; Stevenson v. Chicago & N. W. Ry.
Co.. 94 Iowa, 719.
(408)
Ch. IS] PRESENTATION TO JURY. § 16g
cable 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 effect of an additional fact not enumerated in the
hypothesis, but again reiterates the rule of law, there is no
error.^' 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.** It has
likewise been held that, when requested instructions are al-
ready 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, "especially when the
same remark was made in respect to like requests made by
the defendant."*"
§ 168. Giving undue importance to instructions by words or
actions.
Remarks or actions tending to cause the jury to attach
undue importance to any particular instruction are improper.
Thus, the practice of underscoring words in the instructions
submitted to the jury is very generally condemned on the
ground that it has a tendency to give undue weight and force
to the words and sentences underscored, and thereby to prevent
the jury from giving the other portions of the charge the
weight and consideration they are entitled to.*^ It has been
held, however, that an instruction in which the words under-
scored are usually italicised in legal treatises and judicial
opinions does not fall within this rule.*'' Instructions con-
83 Evans V. Foss, 49 N. H. 490.
84 McCord V. State, 83 Ga. 521.
86 Roberts y. Neal, 62 Ga. 163.
86 State V. Cater, 100 Iowa, 501; Wright v. Brosseau, 73 III. 381;
Heyer v. Salsbury, 7 111. App. 93; McCormick Harvesting Mach. Co.
V. Sendzikowski, 72 111. App. 402.
37 Philpot V. Lucas, 101 Iowa, 478. In this case it appears that
the words "prima facie" were underscored in an instruction.
(409)
§ 169 INSTRUCTIONS TO JURIES. [Ch. 15
taming words which are underscored may properly be re-
fused f^ but the giving of such an instruction is not a ground
for reversal, unless prejudicial to the party complaining.^''
There is some conflict of authority as to the propriety of mak-
ing marginal citations of reports or text books, on instructions
taken out by the jury. One court sees nothing improper in
this practice,** but others have disapproved it. They hold,
however, that, in the absence of special circumstances, the er-
ror is without prejudice, and that a judgment should not be re-
versed for such a reason unless prejudice be made to appear af-
firmatively.*^ A prosecuting attorney has a right to request
instructions. Instructions given on such request are to be
given the same consideration as instructions given by the court
on its own motion ;*^ but an instruction that it is the duty of
the jury to carefully consider the written charges given on re-
quest, 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. It was within the discretion of the court, however,
to have given the instruction.**
§ 169. TJnduly emphasizing proposition of law by repetition.
The mere repetition of a correct proposition of law several
times in the instructions is not error, for the jury cannot be
38 McCormick Harvesting Maoh. Co. v. Sendzikowski, 72 III. App.
402. The instructions condemned in this case were printed, — some
of the words being in large type, and the others in type half as
large.
39 Wright V. Brosseau, 73 111. 381.
*o Wright V. Brosseau, 73 111. 381.
iiHerzog v. Campbell, 47 Neb. 370; Sioux City & P. R. Co. v. Fin-
layson, 16 Neb. 578; Williams v. St. Louis & S. F. Ry. Co., 123 Mo.
673.
42 Dixon V. State, 46 Neb. 298.
43 Martin v. State, 104 Ala. 71.
(410)
Ch. 15] PRESENTATION TO JURY. § 170
too strongly impressed with the correct rule of law applica-
ble to the case.** In one case where the trial court repeat-
ed seven times to the jury the proposition that evidence to
"impeach a written instrument on the ground of fraud, ac-
cident, or mistake must he clear, precise, and indubitable,"
the reviewing court said that, as it was good law, "seventy
times seven would not have been too often."** 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 im-
proper for a court to place, by frequent repetitions, too
prominently before a jury any principle of law involved in
the case."** 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 re-
gard to the facts to which the principle applies." Whether
the court would have reversed for this error cannot be de-
termined, as there were other errors in the record sufficient
to reverse.*''
§ 170. Manner and emphasis of judge in giving instructions.
The weight of authority, it is believed, is to the effect that
no objection to the manner or tone of voice of the trial judge
in delivering his charge can be sustained on appeal.**
**Coffman v. Reeves, 62 Ind. 334; Murray v. New York, L. & W.
R. Co., 103 Pa. 37; Gran v. Houston, 45 Neb. 813. See, also, ante, §
108.
«5 Murray v. New York, L. & W. R. Co., 103 Pa. 37.
46 Tray lor v. Townsend, 61 Tex. 147.
*^ Irvine v. State, 20 Tex. App. 12.
48 Anderson v. Tribble, 66 Ga. 588; Rountree v. Gurr, 68 Ga. 292;
Page V. Town of Sumpter, 53 Wis. 656; Horton v. Chevington & B.
Coal Co., 2 Penny. (Pa.) 49; Gibbs v. Johnson, 63 Mich. 671; Mer-
chants' Bank of Canada v. Ortmann, 48 Mich. 419. See, also, Ma-
loney v. Roberts, 32 Tex. 136; Beal v. Lowell £ D. St. Ry. Co., 157
Mass. 444; Bishop v. Journal Newspaper Co., 168 Mass. 327.
(411)
§ 171 INSTRUCTIONS TO JURIES. [Ch. 15
Courts are "powerless to afford relief for grievances of that
kind, by the ordinary method of assignments of error,"*"
there being no way by which the manner or tone can be
preserved and presented to the court on appeal for review.*"
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 employed. He may have
peculiar methods of emphasis, which may, before a jury, have
a prejudicial effect; but this we cannot reach."*^ "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 variance with the other au-
thorities cited. ""^ In another case it was said that the judge
should not intimate, by the earnestness of his charge, his own
opinion as to the facts.°* So it has 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 affida-
vits.**
5 171. Stating reasons for giving or refusing instructions.
It is immaterial whether the reasons advanced by the court
for giving or refusing instructions were correct or not, where
*9Hortoii V. Chevington & B. Coal Co., 2 Penny. (Pa.) 1, 50.
50 Rountree v. Gurr, 68 Ga. 292 ; Gibbs v. Johnson, 63 Mich. 671.
61 Gibbs V. Johnson, 63 Mich. 674.
52Ernull V. "Whitford, 48 N. C. 474.
03 State V. Howell, 28 S. C. 250. See, also, Wheeler v. Wallace,
53 Mich. 357.
64 Murphy v. Whitlow, 1 Ariz. 340.
(412)
Ch. 15] PRESENTATION TO JURY. § 171
the action of the court was correct in giving or refusing the
instructions in question,*^ unless the statement of an erro-
neous reason for the court's action may have misled the jury,
or affected the verdict to the prejudice of the party com-
plaining.^*
B5Dale V. Arnold, 2 Bibb (Ky.) 606; Marlon v. State, 20 Neb.
233; Rupp v. Orr, 31 Pa. 517; Easley v. Craddock, 4 Rand. (Va.)
423; Posey v. Patton, 109 N. C. 455; Budd v. Brooke. 3 Gill (Md.)
198; Blodgett v. Berlin Mills Co., 52 N. H. 215.
»6 Carpenter v. Pierce, 13 N. H. 403.
(413)
CHAPTER XVI.
ADDITIONAL INSTRUCTIONS AFTER RETIREMENT
OF JURY.
I. Right and Duty to Give Additional Instructions.
§ 172. General Rule.
173. At Request of Jury.
174. At Request of Parties.
175. By Consent of Counsel.
176. What Further Instructions Proper.
177. Same — Necessity of Repeating Entire Charge.
178. Exceptions to Additional Instructions.
II. Deliveey in Open Court.
§ 179. General Rule.
180. Violation of Rule as Ground for Reversal.
181. Waiver of Objectiens.
III. Presence of Counsel.
§ 182. Rule that Presence of or Notice to Counsel is Unnecessaiy.
183. Rule that Presence of Counsel or Notice is Necessary.
184. Same — Violation of Rule as Ground for Reversal.
£V. Presence of Accused in Csiminai. Cases.
i 186. Statement of Rule.
I. Right and Dutv to Giv* Additional Inbtkuctions.
§ irfc. tienei-al iiiit.
hi MiAsis^iDjsv, ike trial ^ndgv is prohibited by statute
froE. glvi-«»g,' '^ttf ;u--/ any instmctioiisi, anless a request there-
for is made by the parties,^ and this prohibition makes it er-
• Z^veumrg v Harper, 27 Miss. 299. See, also, ante, § 12S.
(414)
Ch. 16] CALLING JURY BACK. § 172
roneoiis 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.^ Except in this state,
it is a rule of almost universal application that the trial court
may, of its own motion, recall the jury after they have re-
tired to deliberate on their verdict, to give them further in-
structions,® especially after they have considered a case sub-
mitted to them for some length of time,* or where they re-
port that they are unable to agree on a verdict." On learning
of a jury's disagreement, "it is competent for the court, of its
own motion, to give them any additional instruction, proper
in itself, which may be necessary to meet the difficulty in
their minds."" No request on the part of the jury for fur-
3 Duncan v. State, 49 Miss. 331; Taylor v. Manley, 6 Smed«s A
M. (Miss.) 305; Randolph v. Govan, 14 Smedes & M: (Miss.) 9,
holding that a violation ot the statute is a mere irregularity, and
not ground for reversal where the instruction given is correct.
• Morris v. State, 25 Ala. 57; National Lumber Co. v. Snell, 47
Ark. 407; McDanlel v. Crosby, 19 Ark. 533; People v. Perry, 65 Cal.
668; People v. Mayes, 113 Cal. 618; Hayes v. Williams, 17 Colo. 465;
People V. Odell, 1 Dak. 197; White v. Fulton, 68 Ga. 511; Wood v.
Isom, 68 Ga. 417; Prltchett v. State, 92 Ga. 65; Shaw v. Camp, 160
111. 425; City of Jollet v. Looney, 159 111. 471, affirming 56 111. App.
502; Breedlove v. Bundy, 96 Ind. 319; Hartman v. Flaherty, 80 Ind.
472; Hall v. State, 8 Ind. 439; Nichols v. Munsel, 115 Mass. 567;
Florence Sewing Mach. Co. v. Grover & Baker Sewing Mach. Co.,
110 Mass. 70; Scott v. Haynes, 12 Mo. App. 597;" McClary v. StuU,
44 Neb. 191; Phillips v. New York Cent. & Hudson River R. Co.. 127
N. Y. 657; Cox v. Highley, 100 Pa. 252; State v. Lightsey, 43 9. 0.
114; Jones v. Swearingen, 42 S. C. 58; Benavides v. State, 31 Tax.
Cr. App. 173.
« Allis V. United States, 1^ U. S. 117; State v. Rollins, 77 Me. 380.
'McDaniel v. Crosby, 19 Ark. 533; Hogg v. State, 7 Ind. 551;
State V. Pitts, 11 Iowa, 343; State v. Chandler, 31 Kan. 201; Com.
V. Snelling, 15 Pick. (Mass.) 834; Edmunds v. Wiggin, 24 Me. 605;
Dowzelot V. Rawlings, 58 Mo. 75; Salomon v. Reis, 5 Ohio Clr. Ct.
R. 375; Alexander v. Gardiner, 14 R. I. 15; Turner v. Lambeth, 2
Tex. 365; Hannon v. State, 70 Wis. 448.
• State v. Chandler, 31 Kan. 201.
(415)
§ 172 INSTRUCTIONS TO JURIES. [Ch. 16
tlier instructions is necessary in any caseJ 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 can-
not forestall the action of the court by saying that they do not
desire additional instructions.* The trial court has a large
discretion in recalling juries and submitting amended or addi-
tional legal propositions by way of instructions, and, unless it
, fairly appears that such discretion has been abused to preju-
dice of the party complaining, there is no ground for rever-
sal.* 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.'" 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.-'-' So, the court may have given some in-
structions which are, in point of law, erroneous.'^ It can
hardly be contended that it would be preferable to leave the
court no discretion in the matter of giving further instruc-
tions in any of these contingencies, and to run the risk of an
erroneous verdict and the expense of a new trial.'^ In a num-
ber of states this matter of further instructing the jury after
their retirement has been made the subject of statutory regu-
T See cases cited in the two preceding notes.
« Nichols V. Munsel, 115 Mass. 567.
9 Hayes v. Williams, 17 Colo. 465.
10 City of Joliet v. Looney, 159 111. 411; Cox v. Highley, 100 Pa.
252.
11 Florence Sewing Mach. Co. v. Grover & Baker Sewing Maoh.
Co., 110 Mass. 70; Morris v. State, 25 Ala. 57.
12 State V. Lightsey, 43 S. C. 114.
13 In Com. V. Snelling, 15 Pick. (Mass.) 334, the court said that
the propriety of recalling the jury and explaining the matter fur-
ther is hardly open to reasonable doubt.
(416)
Ch. 16] CALLING JURY BACK. § 173
lations, but it is believed that no court in which one of these
statutes has been construed has ever held that the court can-
not, of its own motion, give further instructions when the ex-
igencies of the case demand such action. It has been held
that, even after the jury have announced their verdict, but
before its acceptance, the court may correct any erroneous in-
struction that has been given, and send them back again to
deliberate.**
5 173. At request of jury.
With the exception of one state, where the court can only
give instructions on the request of the parties,*^ it is well
settled that the court may properly recall the jury if they re^
quest it, and give them additional instructions.** This is a
i*Jack V. Territory, 2 Wash. T. 101. See, also, dictum in Flor-
ence Sewing Mach. Co. v. Grover & Baker Sewing Mach. Co., 110
Mass. 71. Compare State v. Johnson, 30 La. Ann. 921, where it was
held "not within the province of the judge presiding at a criminal
trial to give such instructions to the jury" as would lead to a modi-
fication or change of the verdict.
15 Lavenburg v. Harper, 27 Miss. 299. In this case it was held
error to recall the jury and give them further instructions at their
request, but without the consent of parties. If was further held
that, if the instruction given were in conformity to law, the cause
•would not be reversed. See, also, Taylor v. Manley, 6 Smedes & M.
(Miss.) 305; Randolph v. Govan, 14 Smedes & M. (Miss.) 9.
i«Lee v.- Quirk, 20 111. 392; Shaw v. Camp, 160 111. 425; Arnold v.
Phillips, 59 111. App. 213; Parley v. State, 57 Ind. 331; Sage v.
Evansville & T. H. R. Co., 134 Ind. 100; Gaff v. Greer, 88 Ind. 122;
Wilkinson v. St. Louis Sectional Dock Co., 102 Mo. 130; State t.
Williams, 69 Mo. 110; Hulse v. State, 35 Ohio St. 421; Wilson v.
State, 37 Tex. Cr. App. 156; Turner v. Lambeth, 2 Tex. 365; State
V. Kessler, 15 Utah, 142; Williams v. Com., 85 Va. 607; Richlanda
Iron Co. ▼. Blklns, 90 Va. 249; Woodruff v. King, 47 Wis. 261;
Forrest v. Hanson, 1 Cranch, C. C. 63, Fed. Cas. No. 4,943; Turner
V. Foxall, 2 Cranch, G. C. 324, Fed. Cas. No. 14,255; United States
V. White, 6 Cranch, C. C. 116, Fed. Cas. No. 16,677. A rule of court
that represents for instructions wlM not be considered "unless pre-
sented before the commencement of the final argument" has no
(417)
I 174- INSTRUCTIONS TO JURIES. [Ch. 16*'
practice not only common, but approved by all aiitborities.^^
And soine decisions go a step further, and hold that it is not
only proper, but the duty of the court, to comply with a re-'
quest from the jury for further instructions.^* As was said
in one case: "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 ad-
ditional instruction."^'
§ 174. At request of parties.
As shown in another section, the court is not bound to
give requested instructions unless the request was made with-
in the proper time, but that it is within the sound discretion
of the court to do so if it sees fit.^" The action of the trial
court in refusing requests for instructions, made after the
i;etirement of the jury,^' or after they have announced their,
inability to agree on a verdict, has accordingly been sus-
tained,^^ it being considered that, when the jury has retired
under instructions to which there was no exception, it is with-
application to requests by a juror for further instructions. Arnold,
V, PhiUips, 59 111. App. 213.
IT Woodruff V. King, 47 Wis. 26i; Bank of Kentucky v. McWil-
llams, 2 J. J. Marsh. (Ky.).263.
IS ©'Shields v. State, 55 Ga. 696; Phelps v. State, 75 Ga. 571;
Bank of Kentucky v. McWilliams, 2 J. J. Marsh. (Ky.) 263; King t.
State, 86 Ga. 355.
i» Dowzelot V. Rawlings, 58 Mo. 75.
20 See ante, § 134, "Necessity for Request in Apt and Proper
Time." See, also, Buck v. Buck, 4 Baxt. (Tenn.) 392, where It was
held that, after the jury have failed to agree, they may be recalled,
at the instance of a party, and given further and fuller instructions.
21 Norton v. McNutt, 55 Ark. 59; State v. Barbee, 92 N. C. 820;
Scott V. Green, 89 N. C. 278; State v. Rowe, 98 N. C. 629; Lafoon v.
Shearin, 95 N. C. 391; Forrest v. Hanson, 1 Cranch, C. C. 63, Fed.
Cas. No. 4,943; Turner v. Foxall, 2 Cranch, C. C. 324, Fed. Cas. No.
14,255 ; Williams v. Com., 85 Va. 609.
22 Cady T. Owen, 34 Vt. 598.
fm
Ch. 16]' CALLING- JURY BACK. §. 174
in tie uirfeviewable disciretion of the court whethet tHey shall
be recalled for further instructions.''* Even if the court '
should choose ttf exercise its discretidn by recalling the jury:
forfutthfeif ihst^iietiohs 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 prdposition he might-
choose' t& submit, and havethei" j,ury believe the court attached
great'weight to -the matter about which it- had been recalled
for instructions.^* A somewhat di£Fei:ent question is pre-,
sented when the court has given the jury further instructions
of its own motion, or- at the tequest of the jury, and th^ de-'
cisiong are not entirely harmonious as, to the right of the par-
ties to further instructions. A mere repetition of instruc-
tions already given does not give parties the right to ask, a
new and substantial charge,^* or for any additional instrucr
tions whatever, though it would seem that It is within the
court's ^i-scretion to comply with a request for additional
instructions in such case.^* So, 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 instruc-
tions is recognized.^'' So, in another state, it was held that,
where the court gave additional instructions at the request
of the jury, a refusal to give further instructions at the re-
quest of the parties was not reversible error.^* In all other
23 Lafoon y. Stearin, 95 N, C. 391.
2*'Bowling V. MempWs & C. R. Co., 15 Lea (Tenn.) 122.
2B Prosser v. Henderson, 11 Ala. 484, tvhere 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 before they have ren-
dered their verdict, and additional charges required to be given by
the court."
26 Harvey v. Graham, 46 N. H. 175.
27 Nelson v. Dodge, 116 Mass. 367; Kellogg v. French, 15 Gray
(Mass.) 354.. . . . .
28 State V. Maxent, 10 La. Ann. 743; Williams v. Com., 85 Va. 607.
(419)
§ 176 INSTBUCTIONS TO JURIES. [Ch. 16
jurisdictione wHere this question kas been passed upon it
has been either held or said that the parties are entitled to
further instructions by way of explanation or modification
of additional instructions given by the court of its own mo-
tion, or at the request of the jury.*»
5 175. By consent of counsel.
It is no error for the judge, by consent of counsel on both
sides, to indorse on instructions already given additional in*
structions to the jury.*"
§ 176. What further instructions proper.
After the retirement of the jury, the court may, of its own
motion, recall them and give instructions inadvertently omit-
ted,*^ or which have been erroneously refused,^'' or instruc-
tions explanatory of those already given,^^ or withdrawing or
29 Shaw v. Camp, 160 III. 430; Fisher v. People, 23 111. 2S3; Keeble
V. Black, 4 Tex. 69; Harper v. State, 109 Ala. 66; Prosser v. Hender-
son, 11 Ala. 484; Kuhl v. Long, 102 Ala. 669; Page v. Kinsman, 43
N. H. 328; O'Connor v. Guthrie, 11 Iowa, 80; Chouteau v. Jupiter
Iron Works, 94 Mo. 388; Hudson v. Minneapolis, L. & M. Ry. Co., 44
Minn. 55; Cook v. Green, 6 N. J. Law, 109. See, also, Yeldell v.
Shinholster, 15 Ga. 189, in which it was held that where, after fail-
ure to agree, the jury return into court for further instructions,
and a party requests 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. Where, after fail-
ure to agree, the jury return into court for further instructions, and
a party requests 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.
30 Noffsinger v. Bailey, 72 Mo. 216.
31 Pritchett v. State, 92 Ga. 65; Cox v. Highley, 100 Pa. 252; Com.
V. Snelling, 15 Pick. (Mass.) 334; Dowzelot v. Rawlings, 58 Mo. 75.
32 Phillips V. New York Cent. & H. R. R. Co., 127 N. Y. 657.
33 Florence Sewing Mach. Co. v. Grover & Baker Sewing Mach
Co., 110 Mass. 70; Com. v. Snelling, 15 Pick. (Mass.) 334.
(420)
Ch. 16] CALLING JURY BACK. § 175
modifying an erroneous instruction given ;^* 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 admitted on the
trial, but which, through inadvertence, had not been given to
the jury,*' or to restate the court's opinion as to the credi-
bility of a witness (the court having stated such opinion in
the original charge, at the instance of counsel) ;*^ or to de-
fine the punishment for the different degrees of crime f 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 disagreement if the ver-
dict cannot be rendered as he wants it.** So, the original
instructions may be re-read to the jury when they say that
they do not understand them,** or request that the instruc-
tions be re-read in order to satisfy them as to the true state
of the law upon the issue before them ■*" and when a request
is made that the instructions be re-read, the court may cor-
rect an erroneous instruction given,** or give additional in-
structions.*^ So, where the jury request further instructions,
the court may withdraw instructions already given.** In
»* State v. Lightsey, 43 S. C. 114; Jack v. Territory, 2 "Wash. T.
101; Scott V. Haynes, 12 Mo. App. 597; Hartman v. Flaherty, 80 Ind.
472; Hall v. State, 8 Ind. 439; Sage V. Evansville & T. H. R. Co., 134
Ind. 100.
a« Coit V. Waples, 1 Minn. 134 (Gil. 110).
se State r. Summers, 4 La. Ann. 27.
S7 State V. Kessler, 15 Utah, 142.
88 State V. Lawrence, 38 Iowa, 51. See, also. State v. Blackwell, 9
Ala. 79.
»» Gaff V. Greer, 88 Ind. 122 ; Salomon v. Reis, 5 Ohio Clr. Ct. R.
375. See, also, Nichols v. Munsel, 115 Mass. 567.
*<) Woodruff V. King, 47 Wis, 261.
41 McClelland v. Louisville, N. A. & C. Ry. Co., 94 Ind. 276; Sage
T. Evansville & T. H. R. Co., 134 Ind. 100.
42 Hamilton v. State, 62 Ark. 543.
43 Sage v. Evansville & T. H. R. Co., 134 Ind. 100.
(421)
g 176 INSTRUCTIONS, TO JURIES. [Qh. 16
some jurrisdictions the court may: restate the evidence, or, 3
.portion of it."* This, hpwey^r, is not proper in most juris-
,dic|ions, as judges are expressly prohibited from charging
in respect to matters of fact."^ The court may, at their re-
quest, give the jury any further instruction on any question xxf
Jaw arising on the facts proven,, on which; tjiey say that they
are in doubt.l® Nevertheless,; the. court is not justified-, in
any casC) in giving another full, complete, and different
charge to the jury upon nearly all, or even some, of the ma-
terial questions involved in the case.f^ The Texas statute
provides that, where the jury, after retirement, asks further
instj-utjtions, no charge shall be given except upon the particu-
lar point on which it is askedj*^ and this statute has beep
strictly enforced' in a number of cases.** The wisdom of
such a statute is questionable, and the general rule is that,
,"in answering questions asked by the jury when they come in
for further instructions, the court is not restricted to cate-
gorical answers," but may and should give any further in-
structions necessary."" As already shown, the discretion of
the court in recalling the jury for further instructions is prac-
tically unlimited, and, this being so, there can be no reason
**Hulse V. State, 35 Ohio St. 421;- Nichols v. MunseJ, 115 Mass.
567; Allis v. United States, 155 U. S. 117; Byrne v. Sniiith, 24 Wis.
,68; Hannon v. State, 70 Wis. 448; Drew v. Andrews, 8 Hun (N. Y.)
23; Edmunds v. Wiggin, 24 Me. 505.
<6 See State v. Maxwell, 42 Iowa, 208. See, also, ante, § 38 et seq.
loO'Shlelds v. State, 55 Ga. 696; Wilkinson v. St. Louis Sectional
Dock Co., 102 Mo. 130; State v. Chandler, 31 Kan. 201.
47 Foster v. Turner, 31 Kan. 65.
<8 Pasch. Dig. art. 3079.
49 Chamberlain v. State, 2 Tex. App. 451; Garza v. State, 3 Tex.
App. 287; Hannahan V. State, 7 Tex. App. 610; Wharton v. State, 45
Tex. 2.
00 Paine v. Hutchins, 49 Vt. 314; McClelland v. Louisville, N. A.
& C. Ry. Co., 94 Ind. 276; Edmunds v. Wiggin, 24 Me. 509; Hamilton
V. State, 62 Ark. 543; Sage v. Evansville & T. H. R. Co., 134 Ind. lOd.
And see, generally, the cases cited supra, this section.
(422)
Ch. 16] CALLING JURY BACK. § 1'J'J
whj it should be restricted to answering the precise point
presented by the jijry. On principle, there can be no dif-
ference 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.
§ 177. Same— Necessity of repeating entire charge.
In case 'the jury asks the court to repeat a portion of the
charge, or to give a new iustruction on a particular point,
it is not, according to some decisions, bound to repeat the
whole charge,®^ as this practice might lead to confusion, and
tend to protract proceedings needlessly."^ It has been held,
however, in one case, that, if the jury merely disagree as
to the result, after considering the evidence 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.®* Assuming to follow this deci-
sion it was held in another case that it was reversible error to
recall the jury, and repeat a portion of the charge, in the ab-
sence of a request by the jury, and against the objection of
the appellant."* 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."" In jurisdictions where
it is permissible for the court to state the evidence in char-
Bi Wilson V. State, 68 6a. 827; O'Shields v. State, 55 Ga. 696;
Hatcher v. State, 18 Ga. 460; Gravett v. State, 74 Ga. 196.
52 Gravett v. State, 74 Ga. 196.
BsSwaggerty v. Caton, 1 Heisfc. (Tenn.) 202.
»*Granberry v. Frierson, 2 Baxt. (Tenn.) 326.
5B Cockrill V. Hall, 76 Cal. 192.
(423)
I 179 INSTRUCTIONS TO JURIES. [Ch. 16
ging the jury, the cottrt is not Taound to repeat all the evidence
when asked by the jury to restate a portion of it.^' Though
it is better practice, on restating the evidence upon a particu-
lar point, to restate all of it, yet, under a statute authoriz-
ing the court to state anew the evidence or any part of it, the
court may merely state the evidence in favor of one party.®^
But where a part only of the evidence is restated, it is well
to caution the jury that the other evidence in the case must
be equally considered.''*
S 178. 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,^® and may also except
to a refusal of further instructions asked by them in cases
•where they are entitled to ask for further instructions.*"
II. Delivery in Open Cotjbt.
§ 179. General rule.
After the jury have retired, the judge should not go to tho
jury room to communicate with the jury, nor should he send
additional instructions by the hands of an officer, — all com-
munications should be made in open court.'^ If they desire
s« Allis V. United States, 155 U. S. 117; Byrne v. Smith, 24 Wis. 68.
SI Byrne v. Smith, 24 Wis. 69.
B8 Allis V. United States, 1E5 U. S. l24.
">» Kellogg V. French, 15 Gray (Mass.) 357; Com. v. Snelling, 15
Pick. (Mass.) 334; Nelson v. Dodge, 116 Mass. 367; Wade v. Ordway,
1 Baxt. (Tenn.) 229; Cook v. Green, 6 N. J. Law, 109; Kuhl v. Long,
102 Ala. 563; Peibelman v. Manchester Fire Assur. Co., 108 Ala. 180;
State V. Frisby, 19 La. Ann. 143; O'Connor v. Guthrie, 11 Iowa, 81;
Fish V. Smith, 12 Ind. 563 ; Crabtree v. Hagenbaugh, 23 111. 349.
«o Prosser v. Henderson, 11 Ala. 484; Feibelman v. Manchester
Fire Assur. Co., 108 Ala. 180.
«i Johnson v. State, 100 Ala. 55; Cooper v. State, 79 Ala. 54; Fisher
T. People, 23 111. 283; Crabtree v. Hagenbaugh, 23 111. 349; Chicago
(424)
Chi 16] CALLING JURY BACK. § 179
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. *^ 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,*' and, if he does so, the honesty of his intentions in no
way lessens the impropriety of such action.** In one case it
was said that the affidavits of jurors cannot be read to im-
peach their verdict after it has been rendered, so that it may
be impossible to show in any given case whether or not an
intruder in the jury room did converse 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.*® So, in another case, the judgment
& A. R. Co. V. Robblns, 159 111. 598; Hall v. State, 8 Ind. 444; Pish
V. Smith, 12 Ind. 563; Quinn v. State, 130 Ind. 340; Low v. Freeman,
117 Ind. 341; Blacketer v. House, 67 Ind. 414; Goode v. Campbell,
14 Bush (Ky.) 75; Sargent v. Roberts, 1 Pick. (Mass.) 337; Read v.
City of Cambridge, 124 Mass. 567; Hopkins v. Bishdp, 91 Mich. 328;
Fox V. Peninsular White Lead & Color Works, 84 Mich. 676; Snyder
V. Wilson, 65 Mich. 336; Hoberg v. State, 3 Minn. 262 (Gil. 181) ;
Chouteau v. Jupiter Iron Works, 94 Mo. 388; Norton v. Dorsey, 65
Mo. 376; State v. Miller, 100 Mo. 606; Watertown Bank & Loan Co.
V. Mix, 51 N. Y. 561; Taylor v. Betsford, 13 Johns. (N. Y.) 487;
Mahoney v. Decker, 18 Hun (N. Y.) 365; Plunkett v. Appleton, 51
How. Pr. (N. Y.) 469; Kehrley v. Shafer, 92 Hun (N. Y.) 196; Kirk
V. State, 14 Ohio, 511; Sommer v. Huber, 183 Pa. 162; State v.
Smith, 6 R. I. 33; State v. Patterson, 45 Vt. 316; Campbell v. Beckett,
8 Ohio St. 211; State v. Wroth, 15 Wash. 621; High v. Chick, 81 Hun
(N. Y.) 100; Wiggins v. Downer, 67 How. Pr. (N. Y.) 68; Smith v.
McMillen, 19 Ind. 391; State v. Alexander, 66 Mo. 148.
62 Fisher V. People, 23 111. 283.
63 Gibbons v. Van Alstyne, 29 N. Y. St. Rep. 463; Hoberg v. State,
3 Minn. 262 (Gil. 181).
o^Fish V. Smith, 12 Ind. 563; Hoberg v. State, 3 Minn. 262 (Gil.
181); Valentine v. Kelley, 54 Hun (N. Y.) 79.
65 Gibbons v. Van Alstyne, 29 N. Y. St. Rep. 461.
(425),
§180 INSTRUCTIONS TO JURIES. [Ch. 16
■wals reversed because tKe 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.®* The rule prohibiting judges from communicating
with the jury except in open court is applicable, though the
court has temporarily adjourned. "The judge carries uo
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."*"
In New Hampshire, the rule that no communications be-
tween the court and jury should be had except in open court
does not obtain.*^ In South Carolina, a similar decision was
made in an early case."
§ 180. Violation of rule as ground for reversal.
" In most of the cases where the court has violated the rule
requiring instructions to be delivered in open court, the judg-
ment has been reversed for that reason,'^" and the position
taken that injury will be conclusively presumed, without stop-
ping to inquire whether the instruction given was material,
86 State V. Wroth, 15 Wash. 021.
• ■Sargent v. Roberts, 1 Pick. (Mass.) 337.
68 School Dist. No. 1 in Milton v. Bragdon, 23 N. H. 517; Allen v,
Aldrich, 29 N.- H. 63; Bassett v. Salisbury Mfg. Co., 28 N. H. 438;
Shapley v. White, 6 N. H. 172.
69 Goldsmith v. Solomons, 2 Strob. (S. C.) 296.
'0 See Plunkett v. Appleton, 51 How. Pr. (N. Y.) 469; High v.
Chick, 81 Hun (N. Y.) 100; Gibbons v. Van Alstyne, 29 N. Y. St.
Rep. 461; Fish v. Smith, 12 Ind. 563; Quinn v. State, 130 Ind. 340;
Hall V. State, 8 Ind. 439; Chicago & A. R. Co. v. Robbins, 159 111.
598; Sargent v. Roberts, 1 Pick. (Mass.) 337; State v. Alexander, 66
Mo. 148; Norton v. Dorsey, 65 Mo. 376; Chouteau v. Jupiter Iron
Works, 94 Mo. 388; Hopkins v. Bishop, 91 Mich. 328; Hoberg v.
State, 3 Minn. 262 (Gil. 181); Somner v. Huber, 183 Pa. 162.
(426)
Ch. 16] CALLING JURY BACK. § 181
or had any influence upon tKe .verdict,'^ or was prejudicial
to either party, ''^ arid that the party complaining need not
.show- that he was prejudiced, in order to be entitled to a new
trialj*- , There are' decisions, however, ' in which the court
has refused to reverse for a violation of this rule, basing the
decision on the ground that no prejudice could have resulted
in that particular ease;'* " ;
§ 181. Waiver of objections.
If the parties consent to the giving of further instruptions
otherwise than in, open court, the trial judge may properly
do so, as this amounts to a waiver of the rule,''^ but both par-
ties must consent.'^^ Some decisions hold that, where irregu-
lar communications are made to the jury, either in the ab-
sence of counsel or by sending to the jury rooni, and counsel
are afterwards apprised of the communication, and make
no objection, a new trial will not be granted.'^'^ Others hold
that consent must be expressly given.'® That counsel are
aware that the judge is going into the jury room, and make
no objection, does not amount to a consent to instructions
-TiKehrley v. Shafer, 92 Hun (N. Y.) 196; Gibbons v. Van Alstyne,
29 N. Y. St. Rep. 461.
'2 Read v. City of Cambridge, 124 Mass. 567.
'3 People V. Linzey, 79 Hun (N. Y.) 23.
'4Moseley,v. Washburn, 165- Mass. 417; Galloway t. Corbitt, 52
Michf 461.
'6 Smoke v. Jones, 35 Mich. 408; McCrory v. Anderson, 103 Ind.
12; City of Joliet v. J^ooney, 159 111. 471. See, also, Taylor v. Bets-
ford, 13 Johns. (N. Y.) 487; Ne;l v. Abel, 24 Wend. (N. Y.) 185;
Benson v. Clark, 1 Cow. (N. Y.) 258; Plunkett v. Appleton, 51 How.
Pr. (N. Y.) 469; Hopkins v. Bishop, 91 Mich. 328.
'8 Smith V. McMillen, 19 Ind. 391.
" Thorp v. Riley, 29 N. Y. St. Rep. 520; Zust v. Smitheimer, 34 N.
Y. St. Rep. 583; Mahoney v. Decker, 18 Hun (N. Y.) 365.
'sWatertown Bank & Loan Co. v. Mix,' 51 N. Y. 561; Moody v.
Pomeroy, 4 Denio (N. Y.) 115; Bunn v. Crowl, 10 Johns. (N. Y.) 239.
(427)
,§182 INSTRUCTIONS TO JURIES. [Ch.l6
given while in the jury roomJ' Even when consent is ob-
tained 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.®*
III. Pbesence of Counsel.
§ 182. R'jle that presence of or notice to counsel is unneces-
sary.
In a number of states it is held that, while a trial court
should refrain from instructing a jury in the absence of coun-
sel, when it can do so conveniently, it is not reversible error
for the court to give further instructions after the retirement
of the jury, in compliance with a request from the jury, or
upon the court's own motion, although counsel for neither
party is present, and no attempt has beCn made to notify
them, where such instructions are given in open court, dur-
ing a regular session, when counsel might reasonably have
been expected to be in attendance.^' Although it is said in
some of these cases cited that it would be better to attempt
to notify counsel,*^ this is regarded as a matter of courtesy,
T8 Moody V. Pomeroy, 4 Denio (N. Y.) 115.
80 Seeley v. Bisgrove, 83 Hun (N. Y.) 293.
81 Hudson V. Minneapolis, L. & M. Ry. Co., 44 Minn. 52; Rellly v.
Bader, 46 Minn. 212; Alexander v. Gardiner, 14 R. I. 15; Cliapman
V. Chicago & N. W. Ry. Co., 26 Wis. 295; Torque v. Carrillo, 1 Ariz.
336; State v. Pike, 65 Me. Ill; Cooper v. Morris, 48 N. J. Law,
607; Ahearn v. Mann, 60 N. H. 472; Milton School Dist. y, Bragdon,
23 N. H. 507; Allen v. Aldrlch, 29 N. H. 63; Bassett v. Salisbury
Mfg. Co., 28 N. H. 438; Lelghton v. Sargent, 31 N. H. 119; Meier
V. Morgan, 82 Wis. 289; KuUberg v. O'Donnell, 158 Mass. 405 (ex-
plaining Sargent v. Roberts, 1 Pick. [Mass.] 337) ; Aerheart v. St.
Louis, I. M. & S. R. Co. (C. C. A.) 99 Fed. 907.
82 Meier v. Morgan, 82 Wis. 289; Hudson v. Minneapolis, L. & M.
Hy. Co., 44 Minn. 52; Torque v. Carrillo, 1 Ariz 336.
(428)
Ch. 16] CAI^LING JURY BAfiK. § 182
rather than of legal right.** "In contemplation of law, the
parties and their counsel remain in court until a verdict has
been rendered, or the jury discharged fro,m rendering one."**
The giving of notice to counsel is a matter of grace or favor,
and, while the custom of giving notice is not inherently vi-
cious, the court mus-t have power to proceed without such
notice; otherwise, the transaction of business would be de-
pendent upon the favor of counsel or litigants.*" "The court
may proceed without it [notice], subject to the power of
opening the proceedings, where sufScient cause of absence is
shown, and it appears that injustice has been done. The
idea that the court cannot proceed without causing notice
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 pro-
ceedings taken except by the favor of counsel or of lita-
gants."*® "Counsel, by purposely or inadvertently withdraw-
ing 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 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 dis-
charge its duty. The court is not required to send out its
officers to invite counsel to attend to their duties, and hear
additional instructions which the court proposes to give to
the jury. Undoubtedly, in most cases, courts will endeavor,
as a matter of courtesy, to secure the attendance of counsel
83 Hudson V. Minneapolis, L. & M. Ry. Co., 44 Minn. 52 ; State v.
Pike, 65 Me. Ill; Chapman v. Chicago & N. W. R. Co., 26 Wis. 285.
84 Cooper V. Morris, 48 N. J. Law, 607.
80 Chapman v. Chicago & N, W. Ry. Co., 26 Wis. 295.
»« Chapman v; Chicago & N^ W. Ry. Co., 26 Wi"s. 306.
(429)
§ 183 INSTRUCTIONS TO jtTRIBS. [Cb. 16'
before reinstructing a jury, but it is not error if it is not
dbne."*^ 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 riiotion for a uew trial.**
§ 183. Rule thkt presence of counsel or notice is necessary.
In a number of jurisdictions, usually under statutes regu-
lating the practice, any additional instructions must be given
either in the presence of counsel, or after an attempt has been
made to notify them that fiirther instructions will be giv-
en.*® It has been held, however, that re-reading a portion of
s'Cornisli v. Graff, 36 Hun (N. Y.) 160; To the same effect is
Hudson V. Minneapolis, L. & M. Ry. Co., 44 Minn. 52.
88 Cornish v. Graff, 36 Hun (N. Y.) 160.
88 People V. Trim, 37 Cal. 274; Redman v. Gulnac, 5 Cal. 148;
People V. Mayes, 113 Cal. 618;Goode v. Campbell, 14 Bush (Ky.)
75; Pierce v. Com. (Ky.) 42 S. W. 107; Martin v. State, 51 Ga. 569;
McNeil V. State, 47 Ala. 498; Kuhl y. Long, 102 Ala. 569; Johnson v.
State,' 100 Ala. 55; State v. Davenport, 33 La. Ann. 231; State v.
Frishy, i9'La. Ann. 143; Jones v. Johnson, 61 Ind. 257; Pish v.
Smith, 12 Ind. 563; Blacketer v. House, 67 Ind. 414; Chinn v. Davis,
21 Mo. App. 363; State v. Miller, 100 Mo. 606; Wade v. Ordway,
1 Baxt. (Tenn.) 229; People v. Cassiano, 30 Hun (N. Y.) 388;
Wheeler v. Sweet, 137 N. Y. 438; Kehrley v. Shafer, 92 Hun (N. Y.)
196. Contra, Wiggins v. Downer, 67 How. Pr. (N. Y.) 69. In Ohio
there is a , statutory provision as follows: "After the jury have
retired for deliberation, i^ there be a disagreement 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
offtcfer 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 as to the testimony on the point in dispute, in the presence
of, or after notice to, the parties or their counsel." Code, § 270.
The decisions under this statute are so conflicting that no rule can
be deduced therefrom; In Campbell v. Beckett, 8 Ohio St. 211, it
was hBld" 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 Chambers' Adm'r V.
Ohio Life Ins. & Trust Co., 1 Disn. (Ohio) 327, and Biilius v. Marsh,
(430)
Ch. 16] CALLING JURY BACK. ' § 183
the charge already given in the absence of counsel is not' with-
in the rule, and that error cannot be assigned thereto.®" The
impropriety of giving further instructions in' the absence of
counsel, and \vithout an attempt to notify them, is increased
•wten 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 oppress-
ively, to proceed in so important a matter as that of cbar-
ging a jury without the knowledge or presence of a party or
of his counsel."*^ Where, before giving additional instruc-
tions, the court sends officers to look for counsel, the court
may proceed in their absence,®^ particularly if the party rep-
1 Disn. (Ohio) 512, it was held that the provision requiring the
presence of or notice to counsel when the court states its recollec-
tion of the evidence to the jury does not apply to instructions oh
matters of law. "There is a clear distinction, undes section 270 of
the Code, between further instructions in matter of law and a state-
ment by the court of the evidence on a point." So, In Seagrave v.
Hall, 10 Ohio Cir. Qt. R. 395, it was held 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 fill 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 verdict, was an instruction on the law of the case, and. If
given in the absence of counsel, was error. In Emery v. Whltaker,
2 Cin. Super. Ct. R.^6, it was held that, where the jury come out
and ask further Instructions on the law, in the absence of counsel,
though no call for counsel is made at the court-house door, If the
counsel is sent for into every court rOom and oflSce in the court
house, it is sufficient, though it seems that even this is not neces-
sary when the court is In session.
so People y. La Munlon, 64 Mich. 709.
»i Davis V. Fish, 1 G. Greene (Iowa) 410. The additional Instruc-
tions In this case were given on Sunday.
»2 McNeil V. State, 47 Ala. 498; People v. Mayes, 113 Cal. 618;'
(431);:
§ 183 INSTRUCTIONS TO JURIES. [Ch. 16
resented by the absent counsel is present." 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.®* It must depend largely on circum-
stances 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 court-house door,
or at any place where witnesses are usually called.*" In-
structions 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.*' 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 excepted to.*'' Where the jury have been char-
ged, and have retired, counsel may presume that no other in-
structions will be given without notice or an attempt to no-
tify, and can reasonably object to instructions given in their
absence, as they thereby lose the opportunity of asking for
explanatory charges, if deemed necessary,** and of except-
State V. Dudoussat, 47 La. Ann. 996; Preston v. Bowers, 13 Ohio St.
1; Dobson v. State, 5 Lea (Tenn.) 277; Collins v. State, 33 Ala. 434.
83 People V. Mayes, 113 Cal. 618.
»* Cook V. Green, 6 N. J. Law, 109.
06 McNeil V. State, 47 Ala. 498; Dobson v. State, 5 Lea (Tenn.) 277.
»6Wade V. Ordway, 1 Baxt. (Tenn.) 229; Peibelman v. Manchester
Fire Assur. Co., 108 Ala. 180; Crabtree v. Hagenbaugh, 23 111. 349.
In Wade v. Ordway, 1 Baxt. '(Tenn.) 229, however, it was held that,
if the upper court could see that no harm had been done, the trial
court would not be reversed for its departure from propriety.
97 Allen V. Aldrich, 29 N. H. 63 ; School Dist. No. 1 v. Bragdon, 23
N. H. 507; Shapleigh v. White, 6 N. H. 172.
98 Wade V. Ordway, 1 Baxt. (Tenn.) 223; Kuhl v. Long, 102 Ala.
669.
(432)
Ch. 16] CALLING JURY BACK. | 134
ing to their refusal if the court declines to give them.^^ The
objection that counsel could stop the trial by absenting him-
self from the court house has been disposed of as follows:
"Courts are armed with plenary authority to enforce the dis-
charge 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, re-
quire 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 tem-
porary postponement, than that one not skilled in the law,
and who was largely ignorant of his legal rights, and per-
haps totally ignorant of the practice on which those rights
rested, should lose a privilege, the value of which cannot be
estimated.""*
S 184. Same — ^Violation of rule as ground for reversal.
In a number of cases, both civil and criminal, the giving
of additional instructions in the absence of counsel, and with-
out attempting to notify them, has been held reversible er-
ror.-""* Where additional instructions are given to a jury
in the absence of counsel, a constitutional provision guaran-
tying the right to prosecute a cause by counsel is violated, and
the reviewing court cannot "inquire, in such a case, what in-
structions were given by the court to the jury, — whether they
80 Peibelman v. Manchester Fire Assur. Co., 108 Ala. 180.
100 Martin v. State, 51 Ga. 569.
101 McNeil V. State, 47 Ala. 498; Kuhl v. Long, 102 Ala. 569; Fel-
belman v. Manchester Fire Assur. Co., 108 Ala. 180; Reidman v.
Gulnac, 5 Cal. 148; People v. Trim, 37 Cal. 274; People v. Cassiano,
30 Hun (N. Y.) 388; State v. Davenport, 33 La. Ann. 231; State y.
Frisby, 19 La. Ann. 143.
(433)1
28— Ids. to Juries. '^ "
§ 185 INSTRUCTIONS TO JURIES. |:t!li. l(j
were correct or incorrect, prejudicial or otherwise. We can-
not be informed of their nature or effect by lawful and con-
Btitutional methods. The counsel not being present to ob-
serve the proceedings of the court, and learn for themselves
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 constitutional
representation by counsel — in making up the record for the
presentation of the illegal proceedings to this court for re-
view."^"^ In another case it was said that additional instruc-
tions, 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.^"*
In other cases the reviewing court has refused to reverse,
where it was apparent that no prejudice resulted.^"*
IV. Presence of Accused in Ceiminai. Cases.
§ 185. Statement of rule.
In all criminal cases the defendant has the right to be pres-
ent in person throughout every stage of the trial.-'"* The
court cannot give any further instructions to the jury after
their retirement, except in the presence of the defendant,-""
unless he has absconded,-' "'' or unless he has waived the benefit
102 Peibelman v. Manchester Fire Assur. Co., 108 Ala. 180.
103 Redman v. Gulnac, 5 Cal. 148.
104 Wade V. Ordway, 1 Baxt. (Tenn.) 229; Smith v. Kelly, 43 Mich.
390.
105 Bonner v. State, 67 Ga. 510.
100 Cooper v. State, 79 Ala. 54; Johnson v. State, 100 Ala. 58;
Rafferty v. People, 72 111. 37; Wade v. State, 12 Ga. 25; Bonner v.
.State, 67 Ga. 510; Wilson v. State, 87 Ga. 583; State T. Miller, 100
Mo. 606; Benavldes v. State, 31 Tex. Cr. App. 173, 37 Am. St. Rep.
799; Kirk v. State, 14 Ohio, 512; Jones v. State, 26 Ohio St. 208;
Hulse V. State, 35 Ohio St. 429 ; Maurer v. People, 43 N. Y. 1.
107 Hulse V. State, 35 Ohio St. 429.
(434)
Ch. 16] CALLING JURY BACK. | jgS
of the rule, which It seems he may do.*"* Presence of counsel
at time of giving instructions, and his failure to ohject, will
not waive the absence of the accused.*"* The irregularity of
charging in the defendant's absence is not cured by the pres-
ence of his counsel at the giving of such additional instruc-
tions, and his failure to make objections."** It is the duty of
the court to see that defendant is present when any instruc-
tiorfs are delivered to the jury,*** the rule being that prejudice
will be presumed without inquiring into the correctness of the
instructions,**^ and it has almost invariably been held a
ground for reversal to deliver any further instructions in the
absence of the defendant.**' Thus, if the judge recharges
the jury without verifying for himself the defendant's pres-
ence, and it afterwards appears that the prisoner was not pres-
ent, but was in an adjoining room, in custody of an officer, and
did not know that the jury was being recharged, and knowl-
edge did not come to him until after such recharge was con-
cluded, it is cause for a new trial.*** So, on a trial for mur-
der, 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.*** There is only one decision which
conflicts with the rul6 stated, the view being taken that, if
by no possibility the defendant could have been injured, the
error should not work a reversal.***
108 Benavides v. State, 31 Tex. Cr. App. 173, 37 Am. St. Rep. 799.
109 Bonner v. State, 67 Ga. 510; Maurer v. People, 43 N. Y. 1;
Jones V. State, 26 Ohio St. 208^
110 Jones V. State, 26 Ohio St. 208.
111 Wilson v. State, 87 Ga. 583.
112 Jones V. State, 26 Ohio St. 208.
113 See cases already cited in this section-
in Wilson V. State, 87 Ga. 583.
110 Maurer v. People, 43 N. Y. 1.
lie Railerty v. People, 72 111. 37.
(435)
CHAPTEE XVn.
INSTRUCTIONS AS TO PUNISHMENT AND GRADES OF
OFFENSE,
I. iNSTEXrCTIONS AS TO PUHISHMBNT.
§ 186. When Unnecessary.
187. When Necessary.
188. Same — Invading Province of Jury.
189. Same — Misstating Punishment.
II. Instbuctions as to Loweb Gbades OB Deobees of Offense.
§ 190. Necessity of Basing on Evidence.
191. Same — Illustrations of Rule.
192. Necessity of Giving When Warranted by the Evidence.
193. Propriety of Particular Instructions.
I. Insteuctions as to Punishment.
S 186. When uniiecessary.
In jurisdictions where it is the exclusive province of the
court to fix the punishment for the offense with which the
defendant is charged, the refusal of an instruction as to the
degree of punishment to be meted out to defendant if he
should be convicted is proper. 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.^ Under such circumstan-
ces, there is no legitimate object to be subserved by instruct-
ing the jury as to the punishment which may be inflicted as
1 State V. Ragsdale, 59 Mo. App. 590; People v. Ryan, 55 Hun (N.
Y.) 214; State v. Peffers, 80 Iowa, 580; Ford v. State, 46 Neb. 390;
Keller v. Strasburger, 90 N. Y. 379; Wood v. People, 1 Hun (N. Y.)
381. Contra, People v. Casslano, 30 Hun (N. Y.) 388.
(436)
Ch. 17] AS TO PUNISHMENT. § 187
a result of their verdict.* The verdict should not be affected
by any such considerations.^ But the trial judge has a dis-
cretion as to "whether he will instruct upon the consequences
which may result from the verdict of the jury. It may be
important to give the jury such instruction in order to induce
them to greater care in weighing and scrutinizing the evi-
dence.* In one case it is said that, where the jury have
nothing to do with the punishment prescribed by law for the
offense, it is much the better practice for the court to say noth-
ing about the punishment in its charge." It is proper, how-
ever, to instruct the jury that they have nothing to do with
assessing the punishment if they find the defendant guilty,
and that this is a matter of law devolving upon the court.'
i 187. When necessary.
In some jurisdictions the matter of fixing the punishment
to be inflicted is placed by statute in the hands of the jury.
Where this is the case, it is the duty of the court to instruct
the jury upon the question of punishment, 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,'' and a failure to do so is reversible
error.* 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 pro-
2 Russell V. State, 57 Ga. 420; People v. Ryan, 55 Hun (N. Y.)
214; State v. PefCers, 80 Iowa, 580.
3 Wood V. People, 1 Hun (N. Y.) 381.
4 Keller v. Strasburger, 90 N. Y. 379.
» Russell V. State, 57 Ga. 424.
estate v. Howard, 118 Mo. 144; State v. Avery, 113 Mo. 501.
1 As to the necessity of a request, see ante, § 127 et seq.
sCesure v. State, 1 Tex. App. 20; Prinzel v. State, 35 Tex. Cr.
App. 274; Ringo v. State, 2 Tex. App. 291; Brannigan v. People, 3
Utah, 488; Calton v. Utah, 130 U. S. 83.
(437)
§ 189 INSTRUCTIONS TO JURIES. [Ch. 17
viding for such alternative punishments.* A charge which
stated the term of confinement, but did not state where the
confinement was to be, was held erroneous as not stating the
law of the case.^" Of course, where a request is necessary,
and none is made, a failure to instruct as to punishment is
not available error.^^
§ 188. Same — Invading province of jury.
Where the jury is invested by statute with the discretion
of commuting the death penalty to a life sentence, in case of
extenuating circumstances, this discretion is, nevertheless,
not an arbitrary one, and the court may properly instruct
them as to its exercise;^" but the court, in giving its instruc-
tion, should say nothing which will interfere with the proper
exercise of this discretion.*^
§ 189, Same — Misstating punishment.
An incorrect instruction as to the penalty which may be
inflicted upon the defendant is fundamental error, for which
the conviction will be set aside,-** though the error inures to
the benefit of defendant, or though the error does not relate
to the offense of which the defei^Jant was convicted.*^ Thus,
BRingo V. State, 2 Tex. App. 291.
10 Hamilton v. State, 2 Tex. App. 494.
"State V. Becton, 7 Baxt. (Tenn.) 13S; Honeycutt v. State, 8
Baxt. (Tenn.) 371.
12 People V. Jones, 63 Cal. 168.
IS People V. Bawden, 90 Cal. 195; People v. Brick, 68 Cal. 190;
People V. Murback, 64 Cal. 369.
11 Rodriguez v. State, 8 Tex. App. 129: Graham v. State, 29 Tex.
App. 31; Hargrove v. State (Tex. Cr. App.) 30 S. W. 801; Williams
V. State, 25 Tex. App. 89; State v. Sands, 77 Mo. 118; State v. Mc-
Nally, 87 Mo. 644; Watson v. People, 134 III. 374; State v. Wheeler,
108 Mo. 658; Mitchell v. Com., 75 Va. 856; Whitlock v. Com., 89 Va.
340.
15 Graham v. State, 29 Tex. App. 31.
(438)
Ch. 17] AS TO PUNISHMENT. g 189
it is error to misstate the maximum punislimeiit;^® as 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 former con-
viction;*'' or to state the minimum punishment for an of-,
fense as a term of imprisonment longer than that prescribed
by law as the minimum penalty. •'^ Where a statute provides
that one convicted of assault may be both fined and impris-
oned, an instruction that the penalty is a fine "or" imprison-
ment is fataUy erroneous.-^* So, if the punishment may be
cither by fine or imprisonment, it is error not to instruct that
the jury might inflict the imprisonment without the fine.^"
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 general.^ -^ "An instruction overstating the maxi-
mum fine, and omitting to state the minimum term of im-
prisonment," is also erroneous.^^ 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.^* In other jurisdictions, the rule is not
so rigid, and the doctrine of error without injury has been
held to apply. Thus, where the court overstates the maxi-
i« Hargrove v. State (Tex. Cr. App.) 30 S. W. 801.
17 Watson v. People, 134 111. 374.
18 State V. McNally, 87 Mo. 644; Williams v. State, 25 Tex. App. 89.
19 Moody V. State, 30 Tex. App. 422.
2« Irvin V. State, 25 Tex. App. 558.
21 Jones V. State, 7 Tex. App. 338.
22 State V. Sands, 77 Mo. 118.
23Buford V. State, 44 Tex. 525; Veal v. State, 8 Tex. App. 478;
Gardenhire v. State, 18 Tex. App. 565; Williams v. State, 25 Tex.
App. 76; Jones v. State, 7 Tex. App. 338; Sanders v. State, 17 Tex.
App. 222; Irvin v. State, 25 Tex. App. 558; Wilson v. State, 14 Tex.
App. 527; Bostic v. State, 22 Tex. App. 136; Graham v. State, 29
Tex. App. 32; Howard v. State, 18 Tex. App. 348. Contra, Work
v. State, 3 Tex. App- 234.
(439)
§ 190 ' INSTRUCTIONS TO JURIES. _ [Ch. 17
mum 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.^* So it has
been held that an overstatement of the minimum punishment
is no ground for reversal where the jury assessed the punish-
ment at the maximum amount, which has been correctly
stated to them.^° So, where the court incorrectly tells the
jury that a designated statute fixes the minimum punish-
ment 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.^*
So, a misstatement of the minimum punishment is harmless
error where the jury assess a punishment much larger than
the minimum punishment.^''
II. Insteuctions as to Lower Geades oe Degrees of Opfe:n^sb.
§ 190. Necessity of basing on evidence.
As already shown in another chapter, it is essential that
instructions should conform to the evidence in the case, and
that instructions inapplicable to the facts as disclosed by the
evidence should not be given, for the reason that they might
have a tendency to mislead the jury.^* It follows that, in a
criminal prosecution, error cannot be predicated of the omis-
sion or refusal of a trial judge to instruct as to the lesser
grades of the offense charged, where there is no evidence to
24 State V. Wheeler, 108 Mo. 658.
25 Mitchell V. Com., 75 Va. 856.
' 26 whltlock V. Com., 89 Va. 340.
27 Quinn V. People, 123 111. 333.
28 State V. Estep, 44 Kan. 575. See, also, ante, § 86 et seq.
CMO)
Ch. 17] AS TO PUNISHMENT. § 190
reduce the offense to a lesser grade.^® 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,'"
and, if prejudicial to the party complaining, will be sufficient
29 Alabama: Ragland v. State, 125 Ala. 12.
Arkansas: Benton v. Statg, 30 Ark. 328; Curtis v. State, 36 Ark,
284.
California: People v. Byrnes, 30 Cal. 207.
Colorado: Smith- v. People, 1 Colo. 121.
Iowa: State v. Sterrett, 8.0 Iowa, 609; State v. Cole, 63 Iowa, 695;
State V. Mahan, 68 Iowa, 304; State v. Reasby, 100 Iowa, 231; State
V. Perigo, 80 Iowa, 37; State v. Casford, 76 Iowa, 330.
Indiana: Richie v. State, 58 Ind. 355.
Kansas: State v. Kornstett, 62 Kan. 221; State v. Mowry, 37
Kan. 369; State v. Mize, 36 Kan. 187; State v. Rhea, 25 Kan. 576;
State V. Hendricks, 32 Kan. 566; State v. Estep, 44 Kan. 572.
Missouri: State v. Alcorn, 137 Mo. 121; State v. Turlington, 102
Mo. 642.
Oregon: State v. Garrand, 5 Or. 216.
Tennessee: Williams v. State, 3 Heisk. 376; Ray v. State, 3 Heisk.
379, note; Good v. State, 1 Lea, 293; State v. Hargrove, 13 Lea,
178; State v. Parker, 13 Lea, 221.
Texas: Steiner v. State, 33 Tex. Cr. App. 291; Collins v. State,
6 Tex. App. 72; Mayfleld v. State, 44 Tex. 59; Browning v. State,
1 Tex. App. 96; Holden v. State, 1 Tex. App. 226; Gatlin v. State,-
5 Tex. App. 531; Hodge v. State (Tex. Cr. App.) 26 S. W. 69; Wash-
ington V. State, 1 Tex. App. 647; Taylor v. State, 3 Tex. App. 387;
Hubby V. State, 8 Tex. App. 597; Lum v. State, 11 Tex. App. 483;
Neyland v. State, 13 Tex. App. 536; Davis v. State, 14 Tex. App.
645; Gomez v. State, 15 Tex. App. 327; Darnell v. State, 15 Tex.
App. 70; Smith v. State, 15 Tex. App. 139; Rhodes v. State, 17 Tex.
App. 579; Jackson v. State, 18 Tex. App. 586; Johnson v. State, 18
Tex. App. 385; Bryant v. State, 18 Tex. App. 107; May v. State, 22 Tex.
App. 595; Henning v. State, 24 Tex. App. 315; Trumble v. State, 25
Tex. App. 631; Blocker v. State, 27 Tex. App. 41.
Washington: Smith v. United States, 1 Wash. T. 262.
, 30 People Vi Byrnes, 30 Cal. 206; Lopez v. State, 42 Tex. 299; Serio
V. State, 22 Tex. App. 633; Curtis v. State, 36 Ark. 284; State v.
Mize, 36 Kan. 187; People v. Chun Heong, 86 Cal. 329.
(441)
g 191 INSTRUCTIONS TO JURIES. [Ch. 17
ground upon which to reverse the judgment f^ but if the evi-
dence shows that the offense of the accused is either mur-
der in the first degree or homicide in self-defense, and the
jury convict of murder in the first degree, an uncalled-for
instruction on murder in the second degree cannot injure the
accused. So, an instruction correct as to murder in the first
degree, but which might compel the jury to acquit improperly
of murder in the second degree, ^vill not work a reversal.'^
Thus, if the jury find a verdict of murder in the first degree,
a reversal will not be warranted by the giving of an instruc-
tion as to murder in the second degree, when the act, if not
done in self-defense, must have been murder in the first de-
gree.^* So, where the evidence does not warrant an instruc-
tion on the lower degrees of crime, and such an instruction is
given, the fact that such instruction stated the law errone-
ously will not be ground for reversal if no prejudice could
have resulted therefrom.^^
§ 191. Same — ^Illustrations of rule.
In applying the doctrine, it has been held that an instruc-
tion defining murder in the second degree on the trial of an
SI State v. Mize, 36 Kan. 187, 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; hut where the defend-
ant was charged with assault and battery, and convicted of assault,
and it appears from the evidence that, if he was not guilty of as-
sault and battery, he was not guilty of any offense, 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 ques-
tion of the defendant's guilt in doubt," the judgment should be
reversed.
32 People v. Chun Heong, 86 Cal. 329; State v. Ellis, 74 Mo. 207.
33 state V. Ellis, 74 Mo. 207.
34 State V. Kotovsky, 74 Mo. 247; State v. Erb, 74 Mo. 199.
(442)
Ch. 17] AS TO PUNISHMENT. § 191
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.*® And where there is no
question but that the defendant inflicted the mortal wound,
and the only question is whether he did so willfully, it is not
necessary to instruct the jury as to assault with intent to in-
flict great bodily injury, assault and battery, and other of-
fenses less than manslaughter.^^
In a prosecution for murder, where it is admitted that de-
fendant, 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 man-
slaughter, which may be included in the crime of murder
charged.*^ Where the evidence, if true, sustains an indict-
ment charging an assault with intent to commit rape, no in-
structions shoiild be given as to common assault.'^ And 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.^'
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.*" 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 in-
juries 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
80 People V. Byrnes, 30 Cal. 206; O'Connell v. State, 18 Tex. 343;
State v. Garrand, 5 Or. 216.
3« State V. Perigo, 80 Iowa, 37.
37 State V. Mahan, 68 Iowa, 304.
38 State v. Alcorn, 137 Mo. 121.
3» State V. Reasby, 100 Iowa, 231.
«o State V. Johnson, 129 Mo. 26.
(443)
§ 192 INSTRUCTIONS TO JURIES. [Ch. 17
weapon used might reasonably be found hj the jury to be a
deadly weapon, the failure to submit the question of simple
assault to the jury will not work a reversal.*^ Where, in a
prosecutpn for violating a statute describing the offense of
wilKuUy 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 question left open by the evi-
dence is the one as to the intent of defendant, the willful and
malicious throwing being abundantly proven, it is not error to
fail to charge upon simple assault.*^ 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 necessary for the court to instruct
as to crime less in degree than that of criminal homicide.*^ If
there is no evidence tending to prove that the crime was man-
slaughter, or that the killing was excusable or justifiable, it
is not error to instruct that, "if the killing was willful (that
is, intentional), deliberate, and premeditated, it is murder in
the first degree; otherwise, it is murder in the second de-
gree."** Where, under the evidence, "the defendant is either
guilty of murder in the first degree or innocent of any of-
fense, it is unnecessary to charge * * * as to any de-
gree of the offense other than murder in the first degree."*'
An incorrect charge on manslaughter is not cause for re-
versal if the defendant, if guilty of any crime, is guilty of
murder.**
§ 192. Necessity of giving when warranted by the evidence.
When there is evidence on which instructions as to lower
41 Hodge V. State (Tex. Or. App.) 26 S. W. 69.
42 People v. Stanton, 106 Cal. 139.
43 state V. Proelick, 70 Iowa, 213.
44 People V. Welch, 49 Cal. 174.
46 State V. Kornstett, 62 Kan. 221.
46 Ragland v. State, 125 Ala. 12.
(444)
Ch- 17] -A^S TO PUNISHMENT. § 192
grades of an offense charged can be based, the court should
give such instructions,*^ and this the court is required to do
in some jurisdictions, although no request for instructions of
this character is made,** or, if made, state the law incor-
rectly.'** 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.^" This duty is not dependent upon the court's judg-
ment of the strength or weakness of the testimony support-
ing the theory, it being the prerogative of the jury to, pass
upon the probative force of the testimony.'^ If there is any
doubt in the judge'l mind as to the degree of the offense es-
tablished, the law of the lesser as well as of the greater of-
fense should be given in charge to the jury.®* So, instruc-
tions 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,"* and although his testimony
is at variance with that of every other witness."* For the
purpose of instructing the jury, the defendant's testimony
«7 State v. Young, 99 Mo. 666; State v. Banks, 73 Mo. 592; State
V. O'Hara, 92 Mo. 59; Crawford v. State, 12 Ga. 142; Jackson v.
State, 76 Ga. 473; Territory v. Romero, 2 N. M. 474; People v.
Palmer, 96 Mich. 580; State v. Mize, 36 Kan. 187.
"Dolan V. State, 44 Neb. 643; Vollmer v. State, 24 Neb. 838; Ross
V. State, 23 Tex. App. 689; Chappel v. State, 7 Cold. (Tenn.) 92.
*» State V. Young, 99 Mo. 666.
•00 State V. Mize, 36 Kan. 187; State v. Evans, 36 Kan. 497; Holden
V. State, 1 Tex. App. 225; Blocker v. State, 27 Tex. App. 16; State
V. Elliott, 98 Mo. 150; Madison t. Com., 13 Ky. Law Rep. 313, 17
S. W. 164; Faulkner v. Territory, 6 N. M. 464.
oi Llskosski v. State, 23 Tex. App. 165.
52 Holden v. State, 1 Tex. App. 225.
53 State V. Banks, 73 Mo. 592; State v. Partlow, 90 Mo. 608; State
V. Palmer, 88 Mo. 568,
»* State V. Banks, 73 Mo, 592.
(445)
§ 193 INSTRUCTIONS TO JURIES. [Ch. 17
"occupies the same footing as that of any other witness."'*
]N'evertheless, it has been held not erroneous to refuse an in-
struction on the lower degrees of crime, where it is a phys-
ical impossibility that defendant's testimony could be true,
"l^either courts nor juries should be required to base their ac-
tions or belief on physical impossibilities."'*® While the de-
fendant is always entitled to instructions on the lower
grades of offense, if there is any evidence on which to base
them, this right is waived if he asks that the instructions be
confined to the offense charged.*''' Yet this 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.**
§ 193. Propriety of particular instructions.
An instruction that, if the jury find that certain facts,
which constitute the offense of assault with intent to commit
murder, 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 he found guilty of a lesser
crime than that of which the evidence shows him guilty.**
So, an instruction that, if the jury had a reasonable doubt
as to the degree of the offense of which the defendant was
guilty, "they should find him guilty of that offense highest
in degree of which they may have no reasonable doubt,'^ is
not prejudicial error, though not in conformity to the stat-
ute.*" If the court assumes to give instructions relating to
several grades of offense, the jury should be made to under-
stand to what grade each instruction applies.**
"State v. Palmer, 88 Mo. 568.
66 State V. Turlington, 102 Mo. 642.
-57 State V. Keele, 105 Mo. 38.
Bs State V. Johpson, 8 Iowa, 525.
5»Crowell V. People, 190 111. 508.
60 Ireland v. Com., 22 Ky. Law Rep. 478, 57 S. W. 616.
61 Burris v. State, 38 Ark. 221.
(446)
CHAPTER XVin.
DECLARATIONS OP LAW IN CASES TRIED WITHOUT A JURY.
§ 194. In general.
In several jurisdictions, where an action at law is tried be-
fore the court without a jury, the practice prevails of pre-
gentiiig to the court propositions of law which the court i.s
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.^ This
1 See, generally, upon this subject, the following cases: AUman
V. Lumsden, 159 111. 219; Loudon v. Mullins, 52 111. App. 410; Kraemer
V. Leister, 35 111. App. 391; Mead v. Spalding, 94 Mo. 43; Conran
V. Sellew, 28 Mo. 320; Krider v. Milner, 99 Mo. 145; Weilandy v.
Lemuel, 47 Mo. 322; Methudy v. Ross, 10 Mo. App. 106; Gaty v.
Clark, 28 Mo. App. 332; Rogers v. Johnson, 125 Mo. 202; Daudt
V. Keen, 124 Mo. 105; Suddarth v. Robertson, 118 Mo. 286; GafE
V. Stern, 12 Mo. App. 115; Christy v. Stafford, 123 111. 464; Lyon v.
George, 44 Md. 295; Cook v. Gill, 83 Md. 177; Gage v. AverlU, 57
Mo. App. Ill; Hisey v. Goodwin, 90 Mo. 366; Davis v. Scripps, 2
Mo. 187; Methudy v. Ross, 10 Mo. App. 106; Cooper v. Ord, 60 Mo.
420; Dollarhide v. Mabary, 125 Mo. 197; Suddarth v. Robertson,
118 Mo. 286; GafE v. Stern, 12 Mo. App. 115; Perkins v. School Dist.
No. 2, Greene County, 61 Mo. App. 512;, Harrington v. Minor, 80
Mo. 270; Lee v. Porter, 18 Mo. App. 377; Cape Girardeau County
V. Harbison, 58 Mo. 90; Blanke v. Dunnerman, 67 Mo. App. 591;
(447)
§ 194 INSTRUCTIONS TO JURIES. [Ch. 18
practice does not obtain in chancery cases, because, in such
cases, upon appeal, the case is tried de novo upon the plead-
ings and proofs, and it is therefore immaterial upon what
theory the lower court proceeded.* This subject is not re-
garded as being within the scope of this work, and will there-
fore be no further considered.
King V. Allemanla Fire Ins. Co., 37 Mb. App. 102; Stocker v. Green,
94 Mo. 280; Mayor of Liberty v. Burns, 114 Mo. 426; Fairbanks v.
Long, 91 Mo. 628; Stone v. Pennock, 31 Mo. App. 544; De Laureal
T. Kemper, 9 Mo. App. 77.
2 Gill V. Clark, 54 Mo. 415; Smith v. St Louis Beef Canning Co.,
14 Mo. App. 526; Clouse v. Maguire, 17 Mo. 158; Freeman v. Wilker-
son, 50 Mo. 554; Hunter t. Miller, 36 Mo. 143; Moore v. Wingate,
53 Mo. 398; Wendover v. Baker, 121 Mo. 273; Durfee v, Moran, 57
Mo. 377.
(448)
CHAPTES XIZ.
ISSUES OUT OF CHANCERY.
I 195. Necessity and Propriety of Giving Instructions.
196. Rules Governing Instructions Given.
S 195. Necessity and propriety of giving instructions.
Where a court of chancery submits to a jury for determi-
nation issues as to certain specific facts, neither party has a
right to insist that the court shall instruct the jury, because
the court is not in any manner controlled by the verdict.^
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 ques-
tion may be presented on appeal.^ In some jurisdictions,
however, it seems to be the practice to instruct the jury, and
certainly the court may, if it sees fit, give the jury instruc-
tions properly applicable to the issue submitted to them to
iDanielson v. Gude, 11 Colo. 96; Van Vleet v. Olin, 4 Nev. 95;
Freeman v. Wilkerson, 50 Mo. 554; Conran v. Sellew, 28 Mo. 322;
Branger v. Chevalier, 9 Cal. 353. "Where the action is tried as an
action at law, and so treated by the court and parties, it should,
at least, be fairly submitted to the jury, and the law correctly
stated to them." Van Vleet v. Olin, 4 Nev. 98.
2 Hewlett V. Pilcher, 85 Cal. 542; Sweetser v. Dobbins, 65 Cal. 529;
Riley v. Martinelli, 97 Cal. 585. In Kellogg v. Krauser, 14 Serg. &
R. (Pa.) 137, the court said: "Should there be a mistake in the
admission or rejection of evidence, or in charging a jury, on a
feigned- issue, a writ of error lies." Quoted with approval in Brown
v. Parkinson, 56 Pa. 341.
(449)
29 — Ing. to Jaries.
§ 196 INSTRUCTIONS TO JURIES. [Uh. 19
be tried.* In Georgia, by 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 sub-
ject to the same considerations as in actions at law, and the
parties are entitled to them as of right.*
§ 196. Rules governing instructions given.
Where instructions are given, they should not be general,
as in an action at law, but should relate only to the determi-
nation of the questions of facts submitted.' 'No instruc-
tions should be given except those pertinent to the i^sue, no
matter how pertinent they may be to other questions in the
ease, not covered by the issues submitted.* 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.'^ The instruc-
tions given should not change the issues submitted.® Errors
in instructions which could not have affected the result are
not ground for reversal.® The verdict of the jury being
merely advisory, the court may direct a verdict, even though
the evidence is conflicting.*"
a Snouffer's Adm'r v. Hansbrough, 79 Va. 177; Barth v. Rosenfeld,
36 Md. 604. See, also, the following section.
■iBeall V. Beall, 10 Ga. 342; Shiels v. Stark, 14 Ga. 429; Neal v.
Patten, 40 Ga. 363; Brown v. Burke, 22 Ga. 574; Mounce v. Byars,
11 Ga. 180; Webb v. Robinson, 14 Ga. 216; Doggett v. Slmms, 79
Ga. 253; Adkins v. Hutchings, 79 Ga. 260.
Farmers' Bank v. Butterfleld, 100 Ind. 229.
« Carlisle v. Foster, 10 Ohio St. 198.
TStickel V. Bender, 37 Kan. 457; Swales v. Grubbs, 126 Ind. 107;
Dominguez v. Dominguez, 7 Cal. 424.
8 Hoobler v. Hoobler, 128 111. 645.
9 Snouffer's Adm'r v. Hansbrough, 79 Va. 177.
loGalvin v. Palmer, 113 Cal. 46; Hess v. Miles, 70 Mo. 203; Rob-
inson V. Dryden, 118 Mo. 534; Ely v. Early, 94 N. C. 1; Baldwin v.
Taylor, 166 Pa. 507; Pier v. Prouty, 67 Wis. 218.
(450)
CHAPTER XX.
SPBCIAl, VERDICT QR FINDINGS.
9 197. What Instructions Unnecessary or Improper.
198. What Instructions Proper.
S 197. What instructions unnecessary or improper.
Where the jury are to find a general verdict according t«
the evidence and the law as laid down by the court, the court
must instruct as to the law; but where the jury are to find
simply the facts, entirely independent of their legal bear-
ings, the court need not state the rules of law by which cer-
tain facts are to be weighed, nor give general instructions as
to the law of the case.^ The law must be applied by the
court to the facts after they are found by the jury.^ "There
is * * * neither propriety nor fitness that the court
should, either upon its own motion or at the request of either
party, give any general instructions as to the law of the case.
The jury should be left entirely free to find the facts ma-
terial to the several issues, without instruction as to whether
the law will declare one way or the other, upon any fact or
state of facts which may be found.'" It is, of course, proper
1 Indianapolis, P. & C. Ry. Co. v. Bush, 101 Ind. 582; Toler v.
Keiher, 81 Ind. 383; Louisville, N. A. & C. Ry. Co. v. Frawley, 110
Ind. 18; Louisville, N. A. & C. Ry. Co. v. Buck, 116 Ind. 566; John-
son V. Culver, 116 Ind. 278; Woollen v. Wire, 110 Ind. 253; Sprinkle
v. Taylor, 1 Ind. App. 74; Ward v. Cochran (C. C. A.) 71 Fed. 127.
A similar situation arises in the case of issues out of chancery.
See ante, c. 17.
2 Johnson v. Culver, 116 Ind. 278.
•Louisville, N. A. & C. Ry. Co. v. Frawley, 110 Ind. 28. An in-
(451),
§ 197 INSTRUCTIONS TO JURIES. [Ch. 2
to refuse requests for such instructions,* but the giving of
them will not be reversible error ;^ and it makes no differ-
ence that they state the law incorrectly, provided the trial
court correctly applies the law to the facts.*
Where special interrogatories are submitted to be answer-
ed by the jury in connection with their general verdict, it is
error to instruct the jury that their answers should be con-
sistent with the general verdict,'^ or each other,* since it is;
the duty of the jury to answer each question in accordance
with the preponderance of the evidence bearing thereon.'
So, the court should not direct the jury how to answer. the
questions submitted under any given circumstances, since
Btruction that the special verdict must state whether plaintiff con-
tributed to the injury by a slight want of ordinary care, which would
ba negligence 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.
* Indianapolis, P. & C. Ry. Co. v. Bush, 101 Ind. 582; Stayner v-
Joyce, 120 Ind. 99; Louisville, N. A. & C. Ry. Co. v. Frawley, 110
Ind. 18. Compare Western Union Tel. Co. v. Newhouse, 6 Ind. App.
422, where it was held error "for the court to refuse proper in-
structions as to the measure 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 to the request for and
submission of such instructions are complied with." See, also. Burns
V. North Chicago Rolling 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 contest case, is properly refused. Tarbell v,
Forbes, 177 Ufass. 238.
» Louisville, N. A. & C. Ry. Co. v. Frawley, 110 Ind. 18; Louisville,
N. A. & C. Ry. Co. v. Buck, 116 Ind. 566; Johnson v. Culver, 116 Ind.
278. But see Rhyner v. City of Menasha, 107 Wis. 201.
« Woollen V. Wire, 110 Ind. 253.
7 Coffeyville Vitrified Brick Co. v. Zimmerman, 61 Kan. 750; Me^
chanics' Bank of Detroit v. Barnes, 86 Mich. 632.
8 St. Louis & S. P. R. Ca v. Burrows, 62 Kan. 89. Contra, Hoppe
V. Chicago, M. & St. P. Ry. Co., 61 Wis. 357.
» St. Louis & S. F. R. Co. V. Burrows, 62 Kan. 89.
(452)
Ch. 20] SPECIAL VERDICT OR FINDINGS. § 198
the object of submitting interrogatories would be thereby de-
feated."
i 198. What instructions proper.
Although the court should not instruct the jury as to the
law of the case, in case a special verdict is directed, the court
may and should state "the matter put in issue by the plead-
ings, * * * the rules for weighing or reconciling con-
flicting testimony, with whatever else may be necessary to
enable the jury clearly to comprehend the subjects" to be
comprehended by their special verdict.^ ^ The court njay
state the form of the verdict to be rendered, and the general
duties of the jurors.-'^ So, where special interrogatories
are submitted, the court should instruct that it is the duty of
the jury to answer them,^* and to do so in accordance with
the burden of proof and preponderance of the evidence.**
10 Maclean v. Scripps, 52 Mich. 214; Cole y. Boyd, 47 Mich. 98;
Beecher v. Galvln, 71 Mich. 391.
11 Louisville, N. A. & C. Ry. Co. v. Frawley, 110 Ind. 28; Toler
V. Keiher, 81 Ind. 388; Woollen v. Wire, 110 Ind. 251; Louisville,
N. A. & C. Ry. Co. V. Frawley, 110 Ind. 28; Louisville, N. A. &
C. Ry. Co. V. Balch, 105 Ind. 93.
12 Toler V. Keiher, 81 Ind. 383; Louisville, N. A. & C. Ry. Co. v.
Frawley, 110 Ind. 28.
isRedford v. Spokane St. Ry. Co., 9 Wash. 55; Woollen v. Whit-
acre, 91 Ind. 502.
1* Harriman v. Queen Ins. Co., 49 Wis. 71; Kansas Pac. Ry. Co.
v. Peavey, 34 Kan. 472.
(453^
GHAFTEB XXL
INSTRUCTIONS AS TO DUTY OF JURORS TO AGREEJ UPON
ATERDICT.
§ 199. What Instructions Proper.
200. Instructions Tending to Coerce Jnry into Agreement.
201. Statements as to Lengtb of Time Jury Will b« Kept Ta-
gether.
202. Directing Jury to Compromise.
§ 199. What instnictions proper.
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.-' According-
ly, it is proper for the trial judge to express his desire that
they will be able to agree on further consideration of the
case,* and he may admonish them of the importance and ne-
cessity of agreeing, and urge them to make an attempt to ar-
rive at a verdict.^ He may state the reasons why it is im-
1 German Sav. Bank of Davenport v. Citizens' Nat. Bank, 101 Iowa,
530; Giese v. Schultz, 69 Wis. 526.
2 Com. V. Kelley, 165 Mass. 175; Kelly v. Emery, 75 Mich. 147.
s Wheeler v. Thomas, 67 Conn. 577; State v. Smith, 49 Conn. 376;
Allen V. Woodson, 50 Ga. 63; Warlick v. Plonk, 103 N. C. 81; Jackson
V. State, 91 Wis. 267; Giese v. Schultz, 69 Wis. 526; McDonald v.
Richolson, 3 Kan. App. 255; State v. Hawkins, 18 Or. 476; Krack
V. Wolf, 39 Ind. 88; Niles v. Sprague, 13 Iowa, 198; Kelly v. Emery,
75 Mich. 147; State v. Rollins, 77 Me. 381; Taylor v. Jones, 2 Head
(Tenn.) 565; East Tennessee & W. N. C. R. Co. v. Winters, 85 Tenn.
240; State v. Pierce, 136 Mo. 34; State v. Gorham, 67 Vt 371; Muckle-
roy V. State (Tex. Cr. App.) 42 S. W. 383; Cowan v. Umbagog Pulp
Co., 91 Me. 26.
(454)
Ch. 21] AGREEMENT UPON VERDICT. §; 199
portant that they shall reach an agreement, as, for instance,
that the case had been long pending, exhaustively tried,* and
that a new trial would entail a large additional expense ; or
that there had already been two trials f or that "the case has
already been tried once, and the amount involved is not very
large, and the parties cannot aiford 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."* An instruction may be given that it is the duty of
each juryman to give careful consideration to the views of
his fellow jurors, and that he should not shut his ears and
stubbornly stand upon the position which he may have first
assumed, regardless of anything that may be said by the
other jurymen;^ that they should reason together, and talk
over the existing differences, if any, and harmonize them, if
possible,* and examine such differences in a spirit of fairness
and candor f that it is the duty of the jury to agree upon a
verdict, if that is possible;^" that they should lay aside all
pride of judgment,^ ^ and not stand out in an unruly and ob-
' stinate way through mere stubbornness ;^^ or that the jury
is, in the eye of the law, as capable as any jury will ever be of
^Frandsen v. Chicago, R. I. & P. R. Co., 36 Iowa, 376, 378; Allen
V. Woodson, 50 Ga. 53; Pierce v. Rehfuss, 35 Mich. 53; Stoudt v.
Shepherd, 73 Mich. 588; Clinton v. Howard, 42 Conn. 310; Hannon
V. State, 70 "Wis. 448; Niles v. Sprague, 13 Iowa, 198.
<* Nlles V. Sprague, 13 Iowa, 198.
6 Kelly V. Emery, 75 Mich. 147.
' Jackson v. State, 91 Wis. 257. See, also, Ahearn v. Mann, 60
N. H. 472; Whitman v. Moray, 63 N. H. 458.
» Odette V. State, 90 Wis. 258.
» Frandsen v. Chicago, R. I. & P. R. Co., 36 Iowa, 372.
10 Jackson v. State, 91 Wis. 253.
11 Frandsen v. Chicago, R. I. & P. R. Co., 36 Iowa, 378; Odette
v. State, 90 Wis. 258; Warlick v. Plonk, 103 N. C. 81.
1* Odette V. State, 90 Wis. 258; Jackson v. State, 91 Wis. 253.
(455)
§ 200 INSTRUCTIONS TO JURIES. [Ch. 21
reaching a verdict, or to direct them to return to 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 follow the rules
laid down by the court, they will hare no trouble in agree-
ing;^* 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. "^* It is, of course, not proper to give an in-
struction which has a tendency to restrain jurors from agree-
ing upon a verdict, and a request for such an instruction
may be properly refused,^* though it is proper to add that the
jurors should not yield any conscientious views foimded on
the evidence.*'
§ 200. Instructions tending to coerce jury into agreement.
Any statement by the court which has a tendency to co-
erce the jury into an agreement, or which may impress the
jury with the belief that the judge wants the case decided
for a particular party to the suit, cannot be sustained, and
will, in general, be reversible error.*'^ It is therefore error
13 Parker v. Georgia Pac. Ry. Co., 83 Ga. 539.
14 German Sav. Bank of Davenport v. Citizens' Nat. Bank, 101 '
Iowa, 530.
IB San Antonio & A. P. Ry. Co. v. Choate, 22 Tex. Civ. App. 618.
See, also, Horton v. United States, 15 App. D. C. 310.
16 Warlick v. Plonk, 103 N. C. 81.
1' See German Sav. Bank of Davenport v. Citizens' Nat. Bank, 101
Iowa, 530; Georgia R. Co. v. Cole, 77 Ga. 77. In the latter case,
whicli was an action for personal injuries, the jury disagreed, and,
in answer to a question of the court, stated that they differed about
the amount of damages. The court said: "Gentlemen, I cannot
aid you in that, as I know of, in any way, further than to say that,
upon that matter, the jury ought to make a very earnest effort
to agree, — to reconcile conflicting opinions as to amounts. I merely
give you that as advice of the court. You must make an effort
to agree upon the amount. Of course, a juror ought not to give
up his convictions if they are so strong, hut there ought to he an
effort to come to an agreement. You can retire and see if you can-
(456)
Ch. 21] AGREEMENT UPON VERDICT. | 201
to give an instruction censuring jurors for not yielding to the
majority.^* 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."^' 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 agJee, and that he has rea-
sons to believe that some of the jury have been tampered
with, such reinarks will he considered sufficient ground for
new trial.^° Where the evidence is of so conclusive a char-
acter that the court may direct a verdict for one of the par-
ties, 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 ver-
dict for such paxty.*^
5 201. Statements as to length of time jury will be kept to-
gether.
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.^^ Other cases, however, have taken the opposite
not agree upon the amount." This was held error warranting a
new trial on a recovery by plaintiff, on the ground that the jury
might have understood the court as favoring a finding for plaintiff,
and because his remark might have induced some of them to give
up opinions which they might have entertained in favor of the de-
fendant.
18 Stoudt V. Shepherd, 73 Mich. 588; Mahoney v. San Francisco
6 S. M. Ry. Co., 110 Cal. 471.
19 Randolph v. Lampkin, 90 Ky. 551.
20 State V. Ladd, 10 La. Ann. 271.
21 W. B. Grimes Dry-Goods Co. v. Malcolm (C. C. A.) 58 Fed. 670.
22 Chesapeake, O. & S. W. R. Co. v. Barlow, 86 Tenn. 537; North
Dallas Circuit Ry. Co. v. McCue (Tex. Civ. App.) 35 S. W. 1080;
Taylor v. Jones, 2 Head (Tenn.) 565. See, also, Perkins v. State,
(457^
I 202 INSTRUCTIONS TO J UKIJSS. LUH. '^l
view.*' In one case it was held reversible error to tell the
jury that the conrt would keep them together for four days
unless they agreed f* 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.*' So it was
held error for the trial judge to say to the jury, "If you can-
not 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 dis-
charge them if they stayed till Saturday night."*® 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 does not indicate a
determination on the part of the court to keep the jury in-
definitely until they should agree.*^
§ 202. Directing jury to compromise.
It is not proper for the court to direct the jury, either
expressly or by implication, that they may render a com-
promise verdict.** The law contemplates that they shall,
50 Ala. 154. In this case the court told the jury that he would
keep the court open until they reached an agreement, hut he fur-
ther told them that they had nothing to do but to find defendant
guilty; that they were bound to do so under the instruction of the
court, and that, if they did not, they would be guilty of moral
perjury.
23 State V. Green, 7 La. Ann. 518 ; Hannon v. Grizzard, 89 N. C.
115. To the same effect, see Osborne v. Wilkes, 108 N. C. 651.
24 Terra Haute & I. R. Co. v. Jackson, 81 Ind. 19. See, also,
Ingersoll v. Town of Lansing, 51 Hun (N. Y.) 101.
2B State V. Hill, 91 Mo. 423.
28 Nash v. Morton, 48 N. C. 3.
2' State V. Saunders, 14 Or. 300.
28 Richardson v. Coleman, 131 Ind. 210; Goodsell v. Seeley, 46
(458)
Ch 21] AGREEMENT UPON VERDICT. § 202
by their decisions, harmonize their vote, if possible, but not
that they shall compromise, divide, or yield for the mere
purpose of agreement.*' Hence it is erroneous to instruct
that, "if you can't each get exactly what you want, get the
next best thing to it;"*" or "that the law which requires
unanimity on the part of the jury to render a verdict ex-
pects and will tolerate reasonable compromise and fair con-
cessions ;"*■' or "that many things juries were authorized to
compromise, such as amounts ; that very seldom twelve men
went into the jury room with the same notions as to amounts,
and eompromises were necessary;"'* 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 indi-
viduals upon the evidence, some deference to the opinion of
others, — ^without what some might call a compromise of dif-
ferent views ;"** or that "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."**
Mich. 626; Boden v. Irwin, 92 Pa. 345; Cranston v. New York Cent,
ft H. R. R. Co., 103 N. Y. 614; Southern Ins. Co. y. White. 58 Ark.
277; Edens v. Hannibal & St. J. R. Co., 72 Mo. 212; Clem v. State,
42 Ind. 420.
2» Goodsell v. Seeley, 46 Mich. 623.
»o Southern Ins. Co. v. White, 58 Ark. 277.
«» Richardson v. Coleman, 131 Ind. 210.
82 Edens v. Hannibal & St. J. R. Co., 72 Mo. 212.
»» Clem v. State, 42 Ind. 420.
«* Cranston v. New York Cent. & Hudson River R. Co., 103 N. Y.
614.
(459)
CHAPTER XXn.
WITHDRAWAL OR MODIFICATION OF INSTRUCTIONS.
! 203. Right to Withdraw or Modify Instructions.
204. Sufficiency and Effect
205. At Request of Parties.
S 203. Bight to withdraw or modify instructions.
It is well settled that, where erroneous instnictions have
been given to the jury, the court may, at any time before ver-
dict, either of its own motion or at the request of parties,
. withdraw or amend and correct such instructions.-' The
court may recall the jury and withdraw an instruction,
though a part of it is proper, if that part of it which is
proper has been embraced in an instruction given.^ The
trial court may amend instructions during the progress of
arguments of counsel, if abundant time remains for the dis-
cussion to the jury of the effect of such amendments.*
S 204. Sufficiency and effect.
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 wiU be presumed that a correction by the trial court,
in its charge, of a proposition laid down in a former part of
1 Greenfield v. People, 85 N. T. 91; Hall v. State, 8 Ind. 439; Bgg-
ler v. People, 56 N. Y. 642; Sittlg v. Birkestack, 38 Md. 158; Golds-
borough V. Cradle, 28 Md. 477; Smith v. Maxwell, 1 Stew. & P.
(Ala.) 221; Renner v. Thornburg, 111 Iowa, 515.
2 Lautman v. Pepin, 26 Ind. App. 427.
8 Powers V. Com. (Ky.) 61 S. W. 735.
(460)
Ch. 22] WITHDRAWAL OR MODIFICATION. §,204
the charge, has been accepted by the jury as the law of the
case.* Still, the withdrawal must be made in express terms.
Unless the jury are made to understand clearly that the in*
struction is not to be consideredj the error is not obviated.'
The giving of a fatally erroneous instruction can only be
cured by a plain withdrawal of the instruction.' Where
erroneous instructions are given, the mere giving of other in-
structions, explanatory or contradictory thereof, does not
cure the error.'' 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 evi-
dence in the case it is a question for the jury whether it is
so or not," does not cure the error.* 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 facts, if proved, will be
sufficient to warrant a finding of guilty, the error in the first
instruction is cured;' and a verbal withdrawal of a written
instruction improperly stating the elements of damage will
* Goodsell V. Taylor, 41 Minn. 207.
"Chapman v. Erie Ry. Co., 55 N. Y. 579; Leonard v. Collins, 70
N. Y. 90; Driggs v. Phillips, 103 N. Y. 77; New Albany Woolen
Mills V. Meyers, 43 Mo. App. 124; Bldridge v. Hawloy, 115 Mass. 410;
Wenning v. Teeple, 143 Ind. 189; McCrory v. Anderson, 103 Ind.
12; Greenfield v. People, 85 N. Y. 91.
• 6 Lower v. Franks, 115 Ind. 334. Generally, as to the sufficiency
of the withdrawal of instructions, see New Albany Woolen Mill!
V. Meyers, 43 Mo. App. 124; Eldridge v. Hawley, 115 Mass. 410.
1 Jones V. Talbot, 4 Mo. 279. See, also, ante,. § 76, "Incorrect
Instructions not Cured by Inconsistent Correct Instructions."
8 Canfield v. Baltimore & O. R. Co., 4& N. Y. Super. Ct. 238.
» Com. V. Clifford, 145 Mass. 97: See, also. Sergeant v. Martii
(Pa.) 19 Atl. 568.
(461)
§ 205 INSTRUCTIONS TO JURIES. [Ch. 22
cure ihe error therein contained.^" Where the court gives
the jury an instruction which is entirely abstract or irrele-
vant, it is not error afterwards, on request, to state to the
jury the character of the instruction. The error, if any,
would be in giving the instruction in the first instance, and
not in withdrawing it.** A judge, other than the judge who
presided at the trial, and who gave the instructions, may re-
call the jury, and withdraw certain erroneous instructions, if
he does eo at the request of the judge who gave them, and if
he has jurisdiction.*^
{ 205. At request of parties.
"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.**. The theory of the statute requiring the
judge to write "Refused" 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."** A party to an action
10 Yoakum v. Mettasch (Tex. Civ. App.) 26 S. W. 129.
" Carlock v. Spencer, 7 Ark. 12.
i2Renner v. Thomburg, 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 Harrison v. Powell, 24 Ga. 530.
" Redus V. State, 82 Ala. 53.
(462)
[Ch. 22 WITHDRAWAL OR MODIFICATION. § 205
who has presented declarations of law may be allowed to
withdraw them, where the other party submits no declara-
tions.**
IE Smith T. Mayfield, 60 111. App. 266.
X463)
CHAPTER XXnL
CURING ERROR IN THE ADMISSION OP EVIDENCE BY
INSTRUCTIONS.
) 206. Whether Error can be Thus Cured.
207. Directing Jury not to Consider Evidence Offered and Ex-
, eluded.
208. Necessity for Objections as a Basis of Request to Withdraw
Evidence.
209. Request for Instructions Withdrawing Evidence.
210. What Withdrawal of Evidence Sufficient
§ 206. Whether error can be thus cured.
The authorities are very conflicting as to whether error
in the admission of evidence can be cured by an instruction
withdrawing it. Some decisions hold, without qualification,
that an instruction withdrawing, or attempting to withdraw,
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 evi-
dence is not easily removed or obliterated, and the court can
never be sure as to whether the jury have been entirely suc-
cessful in shutting out from their mental vision the objec-
tionable testimony,* and in one state this is the rule in crim-
inal cases.^ The rule thus stated is not in accord with the
weight of authority, which holds that the erroneous admis-
iClty of Chicago v. Wright & Lawther Oil & Lead Mfg. Co., 14
111. App. 119; Irvine v. Cook, 15 Johns. (N. Y.) 23£f; Penfleld v.
Carpender, 13 Johns. (N. Y.) 350; Arthur v. Griswold, 55 N. Y. 400;
State V. Mix, 15 Mo. 153.
2 State V. Mix, 15 Mo. 153; State v. Wolff, 15 Mo. 168; State v.
Marshall, 36 Mo. 400; State v. Kuehner, 93 Mo. 193.
(464)
Ch. 23] ■ CURING ERROR IN EVIDENCE. | 206
sion of evidence may be cured by instructions withdrawing
it;* and the application of the rule as thus stated does not
depend upon the motives which may have influenced the with-
drawal of the incompetent evidence. The only question is
whether the court has unqualifiedly withdrawn the evidence.
If so, the jury will be presumed to have followed the instruc-
tion, though the court stated that the evidence was with-
drawn to avoid grounds of exception, thereby intimating that
the evidence withdrawn was not necessarily incompetent.*
"While it is error for the court to admit evidence of the un-
lawful conversion of property as a set-off, in an action of as-
sumpsit, yet, if it instructs the jury to reject the set-off, and
they find accordingly, the error is cured."" In a suit to re-
cover the value of logs, some of which had been manufac-
tured 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 could only allow plaintiff the value of the logs, it was-
held that the admission of the testimony as to the value of
sZehner v. Kepler, 16 Ind. 290; Indianapolis, P. & C. Ry. Co. v.
Bush, 101 Ind. 582; Conklin v. Parson, 2 Pin. (Wis.) 264; Beck v.
Cole, 16 Wis. 95; Griffith v. Hanks, 91 Mo. 109; Durant v. Lexlng^
ton Coal Min. Co., 97 Mo. 62; Davis v. Peveler, 65 Mo. 189; Stephens
V. Hannibal & St. J. R. Co., 96 Mo. 207; Brldgers v. Dill, 97 N. C.
222; King v. Rea, 13 Colo. 69; Busch v. Fisher, 89 Mich. 192; Tol-
bert V. Burke, 89 Mich. 132; Deeman v. Black, 49 Mich. 598; Mitts
V. McMorran, 85 Mich. 94; Blaisdell v. Scally, 84 Mich. 149; Puget
Sound Iron Co. v. Worthlngton, 2 Wash. 472; Com. v. Clements, 6
Bin. (Pa.) 208; State v. Towler, 13 R. I. 665; TuUidge v. Wade, 3
Wlls. 18; Hamblett v. Hamblett, 6 N. H. 333; Smith v. Whitman,
S Allen (Mass.) 562; Hawes v. Gustln, 2 'Allen (Mass.) 402; Mimms
V. State, 16 Ohio St. 221; Jones v. Reus, 5 Tex. Civ. App. 628; Links
v. State, 13 Lea (Tenn.) 701; McKnight v. Dunlop, 5 N. Y. 537;
People V. Parish, 4 Denio (N. Y.) 163; Specht v. Howard, 16 Wall.
(U. S.) 564; Pennsylvania Co. v. Roy, 102 U. S. 451.
* State V. Towler, 13 R. I. 665.
'Conklin v. Parsons, 2 Pin. (Wis.) 264.
(466)
30 — Ins. to Juries.
g 206 INSTRUCTIONS TO JURIKS. [Ch. 23
the lumber was not prejudicial.® So it has been held that,
although the wife cannot prove nonaccess 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 can-
not be disturbed because of the question, where the jury are
instructed that they must not consider anything the wife
might say as evidence of nonaccess.''
Of course, if it appears that, notwithstanding an instruc-
tion to disregard evidence improperly admitted, such evi-
dence has affected the verdict, the error in the admission of
the evidence is not cured by the instruction, for it is obvious
that the instruction has proven ineffective f but there is great
conflict in the cases as to whether the error wiU be presumed
to be cured by the instruction, or whether dt must affirma-
tively appear that the instruction was effective, and that no
prejudice resulted from the erroneous admission of the evi-
dence.* According to some decisions, an instruction with-
drawing erroneous evidence will be held to cure the error of
admitting it, unless it is apparent that prejudice resulted
notwithstanding such instruction ;"* that it is only when it is
apparent that immaterial or irrelevant evidence has affected
the verdict that evidence excluded or limited will afford a
ground for reversal.-'* According to other decisions, the
remedy is ineffectual unless it affirmatively appears that no
• Busch T. Fisher, 89 Mich. 192.
T Com. V. Shepherd, 6 Bin. (Pa.) 283.
"Castleman v. Griffin, 13 Wis. 602; Detroit & M. R. Co. v. Van
Steinburg, 17 Mich. 99; Sinlcer v. Diggins, 76 Mich. 557; Sterling
V. Sterling, 41 Vt. 80. See, also, Boyd v. Readsboro, reported in
State v. Meader, 54 Vt. 654.
8 See, generally, upon this subject, post, c. 32, "Appellate Review
of Instructions."
10 Deeriield v. Northwood, 10 N. H. 269; Jones v. Reus, 5 Tex. Civ.
App. 628; Missouri Pac. Ry. Co. v. Mitchell, 75 Tex. 81.
11 Jones V. Reus, 5 Tex. Civ. App. 628.
(466)
Ch. 23] CURING ERROR IN EVIDENCE. § 207
prejudice resulted from the admission of such evidence,*^
and that, if it is probable that such evidence has influenced
the verdict, the judgment must be reversed, notwithstanding
the jury were instructed not to consider it.''* So, according,
to some decisions, the presumption is that the jury based
their verdict upon legal evidence- only;** that the testimony,
after being withdrawn, ig no longer before the jury, but it is,
out of the case ; that, where the jury are instructed to disre-
gard the evidence, it must be presumed that they followed
the instructions;*" that the law intends that jurors pay at-
tention to the charge of the court;*' that, unless it can be
seen that a party has been injured by the admission of siich
illegal evidence, a reversal should not be had for that cause.* ^
i 207. Directing jury not to consider evidence offered and ex-
cluded.
Where the court refuses to admit offered testimony, it
may properly warn the jury against the consideration of such
evidence;** but it is certainly under no obligation to do so,
in the absence of a request therefor.** According to some
decisions, the court may properly refuse an instruction to
disregard excluded evidence, and to the writer this view
seems correct. A jury of even less than ordinary intelli-
gence would hardly consider excluded evidence in making up
their verdict.^"
Instate V. Header, 54 Vt. 131; Coleman v. People, 58 N. Y. 555.
See, also. Wood v. WUlard, 36 Vt. 82; Hodge v. Town of Benning-
ton, 43 Vt. 450.
"Erben v. Lorillard, 19 N. Y. 299.
" Pennsylvania Co. v. Roy, 102 U. S. 451.
»B State V. Meller, 13 R. I. 669.
je Com. V. Shepherd, 6 Bin. (Pa.) 283.
" Links v. State, 13 Lea (Tenn.) 708.
"McCoy V. Bateman, 8 Nev. 126.
10 Russell V. Nail, 79 Tex. 664.
20 Pfaffenbaek v. Lake Shore & M. S. Ry. Co., 142 Ind. 246; Grand
Rapids & I. R. Co. v. Horn, 41 Ind. 479.
(467)
fj 203 INSTRUCTIONS TO JURIES. [Ch. 23
§ 208. Necessity for objections as a basis of request to with-
draw evidence.
According to what is believed to be the weight of authority,
evidence admitted without objection cannot be nullified by
requesting the court to instruct the jury to disregard such
evidence.^^ The view taken by the majority of decisions is
that the objection cannot regularly or properly be raised in
this manner, nor at this stage of the proceedings,^^ and tho
reason on which this view is based is that, if the party had
an opportunity to interpose an objection, he cannot take the
chances that the testimony will be favorable to him, and,
when it turns out otherwise, raise his objection;^* that it
would be unjust for the court to thus exclude evidence at a
stage of the trial when it is too late for the party to adduce
other evidence which might warrant its admission.^* There
are, however, some decisions which apparently take the op-
posite view, and hold that "an omission to object to testi-
mony is not a concession that it is competent," and that, if
testimony is incompetent, the party against whom it is re-
ceived is entitled to an instruction that it should not be con-
sidered,^^ and that a refusal to give an instruction of this na-
ture is reversible error.-* So, in another case, it has been
held that, where incompetent evidence has been admitted
either with or without objection, it is not necessarily to be
"State v. Pratt, 20 Iowa, 267; Becker v. Becker, 45 Iowa, 239;
Fish V. Chicago, R. I. & P. Ry. Co., 81 Iowa, 280; Edge v. Keith, 13
Smedes & M. (Miss.) 295; Ann Berta Lodge v. Leverton, 42 Tex.
18; Missouri Pac. R. Co. v. Mitchell, 75 Tex. 77; Maxwell v. Han-
nibal &. St. J. R. Co., 85 Mo. 106; Harrison v. Young, 9 Ga. 359.
22 State V. Pratt, 20 Iowa, 269.
23 Maxwell v. Hannibal & St. J. Ry. Co., 85 Mo. 106.
2* Ann Berta Lodge v. Leverton, 42 Tex. 18.
20 Hamilton v. New York Cent. R. Co., 51 N. Y. 101.
seSperry v. Helman, 20 N. Y. Civ. Proc. R. 226; Bank of United
States v. Johnson, 3 Cranch, C. C. 228, Fed. Cas. No. 919.
(468)
(Jh. 23J CURING ERROR IN EVIDENCE. § 209
stricken out on motion, but the remedy of tlie party is to ask
for instructions to the jury to disregard it.''^ 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 evidence to establish
such defense has been admitted without objection, it is not
proper to direct the jury to disregard such evidence.** So,
in one state it has been held in criminal cases that, if incom-
petent 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.** If
evidence to which no objection is apparent 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.*"
8 209. Bequest fcr instructions withdrawing: evidence.
Where improper evidence has been admitted, the court
may, of its own motion, instruct the jury to disregard it,**
and it will be error to refuse a request for an instruction to
disregard such evidence. The defendant has the right to
require a court to instruct that, in the making up of their
verdict, they must disregard such evidence, provided objec-
tions were made to the admission of the evidence when offer-
ed in jurisdictions where such objections are necessary.^*
2T Marks v. King, 64 N. Y. 628.
28 Liverpool & L. Ins. Co. v. Gunther, 116 TJ. S. 114.
29 State V. Owens, 79 Mo. 619; State v. Cox, 65 Mo. 29.
80 State V. Lavin, 80 Iowa, 559.
81 Utter v. Vance; 7 Blackf. (Ind.) 514. See, also, Rankin v.
Thomas, 50 N. C. 435; Haney v. Marshall, 9 Md. 194.
32 State V. Brown, 28 Lg.. Ann. 279; Greenup v. Stoker, 2 Gilm.
(111.) 688; State v. Owens, 79 Mo. 619; State v. Cox, 65 Mo. 29.
Compare George v. Norris, 23 Ark. 130. In this case it was said:
"The first and fifth instructions asked the court to declare that evi-
dence which It had admitted against the objection of the plaintiff
(469)
§ 210 INSTRUCTIONS TO JURIES. [Ch. 23
It has been held, however, that where evidence which is ma-
terial and competent at the time it is received becomes sub-
sequently incompetent and immaterial, and no request is
made to the court to instruct the jury to disregard it, a fail-
ure to give such an instruction affords no ground for re-
versal.*^ 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. lie should request a charge of the court that
such evidence be not considered.'* If, notwithstanding thej
fact that the court has excluded evidence at the time it was
offered on objection raised, the party objecting is apprehen-
sive 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.^'
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.'*
§ 210. What withdrawal o£ evidence sufficient.
In case illegal evidence has been admittea, the better prac-
tice is to withdraw it from the consideration of the jury m
■was not legal, and could not be considered by the jury. The cour^
did not err in refusing the instructions, — its error was in allowing
parol evidence to go to the jury, to construe the bill of sale as a
mortgage; but when the evidence was before the jury, the plaintiff
should have rested his objection to it on his exception to its intro-
duction, — should not have asked the court to pronounce that not
to be law which the court in a former period of the case ruled io
be the law. The instructions were properly refused."
33 Aitkin's Heirs v. Young, 12 Pa. 15.
84 Gawtry v. Doane, 51 N. Y. 84.
35 Russell V. Nail, 79 Tex. 664.
36 Buster's Ex'r v. Wallace, 4 Hen. & M. iVa.) 82.
(470)
Ch. 23] CURING ERROR IN EVIDENCK. § 210
express terms.''' As was said in one decision: "It is dif-
ficult 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 testimony can
hardly be removed by anything short of a flat direction that
it must be disregarded."^* It is not sufficient to withdraw
the evidence by implication merely.** If evidence is im-
properly admitted, but afterwards withdrawn by express di-
rection, it is held that this will be sufficient without again
directing the jury not to consider it in the general charge.*''
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.*^
It has also been held that, where "evidence properly to be
considered under the prayer for exemplary damages was in-
troduced without objection, and afterwards the court char-
ged the jury, excluding from their consideration the ques-
tion of exemplary damages, the failure of the court, of its
own accord, to instruct the jury not to consider the evidence
thus admitted, is not ground for reversal."*^
sjPavey v. Burch, 3 Mo. 314; Castleman v. Griffin, 13 Wis. 602;
GriAtli V. Hanks, 91 Mo. 109; Durant v. Lexington Coal Min. Co.,
97 Mo. 62; Henkle v. McClure, 32 Ohio St. 202; Scripps v. Reilly, 35
Mich. 393; Keil v. Chartiers Val. Gas Co., 131 Pa. 466. See, also,
Wright V. Gillespie, 43 Mo. App. 244.
38 Henkle v. McClure, 32 Ohio St. 202.
39Pavey v. Birch, 3 Mo. 314.
40 Brown v. Matthews, 79 Ga. 1; Martin v. McCray, 171 Pa. 575.
" Rollins V. O'Farrel, 77 Tex. 90.
42 Brown V. Bacon, 63 Tex. 596.
(471)
CHAPTER XXIV.
INSTRUCTIONS PERMITTING JURORS TO USB PERSONAL
KNOWLEDGE AS EVIDENCE.
S 211. In General.
212. View by Jury of Locus in Quo.
§ 211. In general.
Although the rule was otherwise at early common law/ it
is now well settled that a jury must base their verdict upon
the evidence delivered to them in open court, and they may
not take into consideration facts known ^ to them personally,
but outside of the evidence produced before them in court
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.' Ac-
cordingly, it is error to give instructions directing or permit-
ting jurors to apply their own personal knowledge of .the
facts,* or of the character of the witnesses, in determining
13 Bl. Comm! 374; 5 Bacon, Abr. 351; Orcutt t. Nelson, 1 Gray
.(Mass.) 536.
2 Close V. Samm, 27 Iowa, 503, 507.
« Orcutt V. Nelson, 1 Gray (Mass.) 536; 1 Starkie, Ev. 449; Chatta-
nooga, R. & C. R. Co. V. Owen, 90 Ga. 265. See, also, Patterson v.
City of Boston, 20 Pick. (Mass.) 166; Murdock v. Sumner, 22 Pick.
(Mass.) 156; Wliarton v. State, 45 Tex. 2.
* Gibson v. Carreker, 91 Ga. 617; Douglass v. Trask, 77 Me. 35;
Junction City v. Blades, 1 Kan. App. 85; Burrows v. Delta Transp.
Co., 106 Mich. 582 ; Chattanooga,' R. & C. R. Co. v. Owen, 90 Ga. 265.
(472)
Ch. 24] JUROR'S PERSONAL KNOWLEDGE. § 211
their verdict." Thus, 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.' "* So, in an ac-
tion 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,'' as is also an instruction
that, in estimating damages, they are to use their own judg-
mentj as well as the judgment of the witnesses;* but an in-
struction permitting jurors, in weighing the evidence, to
apply the knowledge and experience which they possess as in-
telligent men, does not violate the rule, since it does not
permit them to use any peculiar or personal knowledge they
may possess.® The court may instruct "that a juror can nei-
ther consider any fact which comes within his personal
» Pettyjohn v. Llebscher, 92 Ga. 149; Chattanooga, R. & C. R. Co. v.
Owen, 90 Ga. 265, overruling Head v. Bridges, 67 Ga. 236; Anderson
V. Tribble, 66 Ga. 584; Howard v. State, 73 Ga. 84, criticising dictum
in Rogers v. King, 12 Ga. 229; Patterson v. City of Boston, 20 Pick.
(Mass.) 166. Compare State v. Jacob, 30 S. C. 131, where it was held
not improper to instruct that the Jury are presumed to know the
character of the witnesses, having been drawn from the vicinage for
that reason.
« Pettyjohn v. Llebscher, 92 Ga. 149.
T Gibson v. Carreker, 91 Ga. 617.
8 Brakken v. Minneapolis & St. L. Ry. Co., 29 Minn. 41, 43. See,
also. Heady v. Vevay, Mt. S. & V. Turnpike Co., 52 Ind. 117.
» Jenney Electric Co. v. Branham, 145 Ind. 314; Sanford v. Gates, ,
38 Kan. 405. See, also, Morrison v. State (Fla.) 28 So. 97. Where
a broken plank, which caused the injury, was introduced in evi-
dence, an instruction that the jury were not restricted to the opin-
ions of expert witnesses, but had the right to use their own intelli-
gence, and the knowledge and experience of lumber which they
brought with them into the jury box, in connection with their in-
spection of the exhibit, was held not erroneous. Lafayette Bridge
Co. V. Olsen (C. C. A.) 108 Fed. 335.
(473)
^ 212 INSTRUCTIONS TO JURIES. [Ch. 24
knowledge, nor can he communicate it to the other jurors,"
where it appears that one of the jurors knew some fact ma-
terial to the defense. ■"' When a juror asks whether he mav
consider his own personal knowledge of certain facts, the
court should instruct that the case must be tried upon the evi-
dence given at the trial, and not upon information that any
one or more of their number ma;y have outside of the rec-
ord. ■'^ 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
governing juries in weighing testimony. In sucli case it
is not authorized to do more than answer the question, and
inform them that they should decide the case upon the evi-
dence adduced at the trial.^^
§ 212. View by jury of locus in quo.
In case of view by the jury, there is some conflict of opin-
ion as to the right of the jury to use, as evidence in the case,
what they learned by personal inspection. The probable
weight of authority is to the effect that the view is not al-
lowed for the purpose of furnishing evidence upon which a
verdict is to be found, but for the purpose of enabling the
jury better to understand and apply the evidence which is
given in court,^' and that instructions authorizing the jury
to treat their own personal observations as evidence in the
case are erroneous.^* "An instruction to a jury sent out to
10 State V. Jones, 29 S. C. 201.
" Citizens' St. R. Co. y. Burke, 98 Tenn. 650.
12 Wharton v. State, 45 Tex. 2.
13 Close V. Samm, 27 Iowa, 503 ; Schultz v. Bower, 57 Minn. 493 ;
Chute V. State, 19 Minn. 271 (Gil. 230) ; Brakken v. Minneapolis &
St. L. Ry. Co., 29 Minn. 43; Heady v. Vevay, Mt. S. & V. Turnpike
Co., 52 Ind. 118; Stanford v. Felt, 71 Cal. 251.
14 Wright V. Carpenter, 49 Cal. 609; Brakken v. Minneapolis & St.
I.. Ry. Co., 29 Minn. 43.
(474)
Ch. 24] JUROR'S PERSONAL KNOWLEDGE. § 212
view land in controversy, 'that they examine the land, ex-
amine 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 ex-
amination, as independent evidence."^ ^ It has been urged,
as a reason in support of this view, that, if the rule were
otherwise, the jury might base its verdict wholly on the
knowledge thus acquired, regardless of an overwhelming
weight bi 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, treat-
ing 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 given in court,
to be discussed by counsel and considered by the court in de-
ciding 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 ascer-
taining."-" Judge Thompson pronounces this view absurd,
and says bluntly that there is no sense in it.*'^ And there
are decisions in support of his view that the jury may be
instructed upon the theory that what they have learned from
the view is evidence in the case.-'*
IB Wright V. Carpenter, 50 Cal. 556.
10 Wright V. Carpenter, 49 Cal. 609.
17 Thomp. Trials, § 893.
18 Toledo, A. A. & G. T. Ry. Co. v. Dunlap, 47 Mich. 466; City of
Topekav. Martineau, 42 Kan. 390; Washburn v. Milwaukee & L. W.
R. Co., 59 Wia. 364.
(475)
CHAPTER ZX7.
CAUTIONARY INSTRUCTIONS ON THE CREDIBILITY OF WIT-
NESSES AND THE PROBATIVE FORCE OF EVIDENCE.
I. Genebal Considebations.
§ 213. Right and Duty to Give Cautionary Instructions.
214. Credibility of Witnesses and Effect of Evidence in General.
II. Testimony of Accomplices.
f 215. Rules of Evidence Governing this Class of Testimony.
. 216. Instructing Jury that They may Convict on Accomplice Tes-
timony.
217. Instructing Jury to Receive With Caution.
218. Advising Jury to Acquit Unless Corroborated.
219. Binding Instructions to Acquit Unless Corroborated.
220. Explaining Nature of Corroboration Required.
221. Instructing as to Who are Accomplices.
222. Instructions Giving Undue Weight to Accomplice Testimony.
223. Evidence on Which to Base Instructions Necessary.
224. Same — Evidence Held Sufficient to Warrant Instructions.
III. Testimony of Pakties and Interested Witnesses.
§ 225. What Instructions Proper.
226. What Instructions Improper.
227. Instructing that Jury "may" Consider Interest of Party or
Witness.
228. Same — Rule in Kentucky, Mississippi, and Texas.
229. Instructing that Jury "must" or "should" Consider Inter-
est of Party or Witness.
230. Same — Rule in Kentucky, Mississippi, Texas, and Indiana.
IV. Admissions and Confessions in Criminal Cases.
§ 231. General Considerations Governing Instructions on this Kind
of Evidence.
232. What Instructions may Properly be Given.
233. Same — Instructions to Receive and Weigh with Caution.
234. Same — Instructions Giving Undue Weight to Evidence.
(476)
[Ch. 25 PROBATIVE FORCE OF EVIDENCE.
V. Admissions in Civil Cases.
§ 235. Instructions to Receive and Weigh -with Caution.
236. Instructions Giving Undue Weight to this Class of Evidence.
237. Instructions as to Admissions of Record.
VI. Testimont op Expebt Witnesses.
f 238. Rules Governing this Class of Evidence.
239. Instructing that Expert Testimony is to be Considered the
Same as That of Other Witnesses.
240. Instructions Tending to Discredit Expert Testimony. .
241. Instructions Directing Jury to Attach Great Weight to Ex-
pert Testimony.
242. Instructing Jury to Take into Consideration Witness' Means
of Knowledge.
243. Instructions Contrasting Testimony of Experts.
244. DifBctlng Jury to Consider, in Connection with Other Evi-
dence.
245. Instructions Giving Undue Prominence to Skill and Experi-
ence of Experts.
246. Instructions with Regard to Hypothetical Questions.
247. Miscellaneous Instructions.
248. Necessity of Requesting Instructions.
VII. Testimony of Impeached Witnesses.
S 249. Propriety and Necessity of Instructions on this Subject.
250. What Instructions Proper.
251. What Instructions Erroneous.
VIII. Applications o» the Maxim, "Falsus is Uwo, Falsus in
Omnibus."
§ 252. Propriety or Necessity of Instructing as to this Maxim.
253. Instructing that Jury "may" or "should" Disregard Evi-
dence.
254. Omitting Element of Interest in Charging.
255. Omitting Element of Materiality of Testimony in Charging.
256. Instructions Making Corroboration a Condition of Belief.
IX. Relative Fobce op Positive and Negative Testimony.
{ 257. In Jurisdictions Where Charge on Weight of Evidence is
Improper.
258. In Jurisdictions Where Charge on Weight of Evidence is
Permitted.
259. What Instructions Proper.
(477)
I 213 INSTRUCTIONS TO JURIES. [Ch. 25
X. Manner op Testifying, Bias, Eto.
§ 260. In General.
XI. Unswoen Statement of Defendant ih CBiMHtiX CA.Siss.
§ 261. In General.
XII. IDENTITT OF DEFENDAIfl
§ 262. In General.
XIII. Evidence of Chabacteb.
§ 263. Rules Governing this Class of Evidence.
264. Instructions Limiting Effect of Evidence to Doubtful Cases
Improper.
265. Instructing that Evidence- of Good Character may Create
Reasonable Doubt. •
266. Instructions as to Effect of Evidence of Good Character in
Cases of Great and Atrocious Criminality.
267. Instructing that Evidence of Good Character Cannot Avail
Against Clear Proof of Guilt.
268. Other Instructions as to Character.
269. Necessity of Instructions oa Character.
XIV. Conflicting Evidence.
§ 270. In General.
XV. Comparison op Numbeb of Witnessbs.
§ 271. What Instructions Proper.
272. What Instructions Improper.
I. General Considerations.
§ 213. Eight and duty to give cautionary instructions.
As has already been seen, it is exclusively within the prov-
ince of the jury to determine questions of fact, and, as neces-
sarily involved therein, the credibility of witnesses, and the
weight and effect of testimony.^ But subject to certain lim-
itations, which will be noticed as the discussion of the sub-
1 See ante, c. 2, "Province of Court and Jury."
(478)
Ch. 25] PROBATIVE FORCE OF EVIDENCE. § 214
ject proceeds, the court may instruct the jury as to the con-
siderations by which they may or should be controlled in
weighing the evidence and finding the facta. The most im-
portant limitation upon this right, and the one most fre-
quently violated, is that the court must not invade the prov-
ince of the jury.^ The giving of proper cautionary instruc-
tions is largely within the discretion of the court;"' 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.* Where a question submitted to a jury
on a special finding 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.'' The right of par-
ties to have cautionary instructions given, upon request, un-
der particular circumstances, will be considered in connec-
tion with the various circumstances which call for cautionary
instructions.
i 214. Credibility of witnessei and effect of evidence in gen-
eral.
The court may give the jury cautionary instructions con-
taining general advice as to the credibility of witnesses and
the weight of evidence, but exceedingly great care is neces-
sary to avoid invading the province of the jury in this re-
spect. While courts may set aside verdicts as against the
weight of evidence, it is nevertheless proper to instruct the
2 See ante, c. 3, "Invading Province of Jury."
•Dinsmore v. State (Neb.) 85 N. W. 445.
4 Ray burn v. State (Ark.) 63 S. W. 356.
' Lyle V. McCormlck Harvesting Mach. Co., 108 Wis. 81.
(479)
§v 214 INSTRUCTIONS TO JURIES. [Ch. 25
jury that they are the sole judges of the credibility of witnesses
alid the weight of the evidence. Such an instruction is calcu-
lated to impress jurors with a sense of their responsibility.*
Such an instruction will go far to prevent the other instruc-
tions from invading the province of the jury, and it is almost
always given.'^ 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
J that had appeared before them' " is erroneous, as the jury
might infer that the credibility of the depositions was not
open to question.' So, an instruction that the jury are the
sole judges of the "weight and importance" of the testimony
of the various witnesses is erroneous, as it makes the jury
the judges of the materiality of the testimony.® The court
may instruct the jury what circumstances they may consider
as affecting the "credibility of witnesses,"^" but not that
State v. Kelly, 73 Mo. 608; McClurkan v. Byers, 74 Pa. 405; Dib-
ble V. Northern Assur. Co., 70 Mich. 1; Chicago & A. R. Co. v. Fisher,
141 111. 614; People v. Chadwick, 7 Utah, 134; Lampe v. Kennedy, 60
Wis. 110; Clarey v. State (Neb.) 85 N. W. 897; State v. Adair, 160
Mo. 391; Com. v. Bubuis, 197 Pa. 542. An instruction that the
jury are the exclusive judges of the credibility, of the height 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.'" Binyon v. State (Tex. Cr. App.) 56 S. W. 339.
7 See Stewart v. Anderson, 111 Iowa, 329.
8 Hansberger v. Sedalia Electric Ry., Light & Power Co., 82 Mo.
App. 566. '
» Hansberger v. Sedalia Electric Ry., Light & Power Co.; 82 Mo.
App. 566. ,
"Wabash R. Co. v. Biddle (Ind. App.) 59 N. E. 284. The follow-
ing instruction is not erroneous: "You have a right to consider the
circumstances and condition of any witness as proven to, have been at
the time of the incidents about which said witness testifies. You
may consider such cbndition of any witness as to soberness, the sur-
roundings of such witness, with .reference to determining whether
or not such witness was in a condition to see and understand what
was occurring." Wheeler v. State, 112 Ga. 43.
(480)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. § 215
they must or should consider such circumstances, as this
would invade the province of the jury,^^ although, in on© ease
at least, such an instruction was held not to be reversible
error. •'^ So it is proper to refuse to instruct that the testi-
mony of a certain witness should be considered with great
distrust, since the weight to be given thereto is a question
for the jury.^^ The reputation of a witness is presumed to
be good until impeached, but there is no presumption that
his testimony is true, and it is reversible error to so in-
struct.^* So it is proper to instruct that the jury are not
bound to 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.-'^ An in-
struction that certain evidence is to be treated "with like ef-
fect" as certain other evidence is erroneous, since it is the
province of the jury to determine, in view- of all the circum-
stances, how much credence they will give tp any particular
evidenee.^^ So 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 testimony is to be given more weight than another."-^ '^
II. Testimony of Accomplices.
S 215. Rules of evidence governing this class of testimony.
In order to understand what instructions may properly
"Wabash R. Co. v. Biddle (Ind. App.) 59 N. E. 284.
12 State V. Fisher, 162 Mo. 169.
13 Tarbell v. Forbes, 177 Mass. 238.
" State V. Taylor, 57 S. C. 483.
15 Goss Printing Press Co. v. Lempke, 90 111. App. 427, affirmed
191 111. 199.
16 Connecticut Mut. Life Ins. Co. v. Hillmon (C. C. A.) 107 Fed.
834.
17 Owen V. Palmour, 111 Ga. 885.
(481)
31 — Ins. to Juries.
§215 INSTRUCTIONS' TO JURIES. [Ch. 25
be given on tlie subject of accomplice testimony, it is neces-
sary to know the rules of law governing this kind of evi-
dence. In all jurisdictions except where it is otherwise pro-
vided by statute/* a conviction may be had on the uncor-
roborated testimony of an accomplice.^® 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 confirmation,"^" it is not a rule of law that
accomplices must be corroborated in order to render a con-
viction valid. '^ The degree of credit to be given an accom-
plice is a matter exclusively within the province of the jury.
They may, if they see fit, act upon an accomplice's testi-
mony, even in a capital case, without any confirmation of
his statements.^^ "The evidence zif an accomplice is un-
18 In a number of states, by virti t 'il statutory provisions, a con-
viction cannot be had upon the testimony of an accomplice alone.
It must be supported by corroborating evidence.
19 Rex V. Atwood, 1 Leach, 464; Rex v. Durham, 1 Leach, 478;
Planagin v. State, 25 Ark. 96; State v. Hardin, 19 N. C. 407; State
V. Barber, 113 N. C. 711; Com. v. Bosworth, 22 Pick. (Mass.) 398;
Rex V. Wilkes, 7 Car. & P. 272; United States v. Neverson, 1 Macksy
(D. C.) 154; Collins v. People, 98 111. 589; Earll v. People, 73 III.
333; Friedberg v. People, 102 III. 160; State t. Mason, 38 La. Ann.
476; State v. Prudhomme, 25 La. Ann. 525; Olive v. State, 11 Neb.
1; Tuberson v. State, 26 Fla. 472; State v. Litchfield, 58 Me. 267;
State V. Hyer, 39 N. J. Law, 603; Linsday v. People, 63 N. Y. 143;
Brown v. Com., 2 Leigh (Va.) 769; State v. Brown, 3 Strob. (S. C.)
508; People v. Costello, 1 Denio (N. Y.) 83; Cox v. Com., 125 Pa.
94; Schulz v. Schulz (111.) 30 N. E. 317; Steinham v. United States,
2 Paine, 68, Fed. Cas. No. 13,355; Ulmer v. State, 14 Ind. 52; State
V. Dawson, 124 Mo. 418; State v. Stebbins, 29 Conn. 463; State v.
Betsall, 11 W. Va. 704; Fitzcox v. State, 52 Miss. 923; Ingalls t.
State, 48 Wis. 647. Contra, Shelly v. State, 95 Tenn. 152.
20 Com. V. Bosworth, 22 Pick. (Mass.) 399.
21 Reg. V. Stubbs, 33 Eng. Law & Eq. 551.
22 United States v. Neverson, 1 Mackey (D. C.) 154.
(482)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. | 216
doubtedly competent, and may be acted on by the jury" as
a sufficient basis for a conviction, altbough entirely unsup-
ported.^* 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 re-
gard to it.^* Yet the court cannot go beyond the usual cau-
tions, "and, if the jury really yield faith to it [the testimony
of an accomplice], it is not only legal, but obligatory on their
consciences, to found their verdict upon it."*®
§ 216. Instructing jury that they may convict on accomplice
testimony.
The jury may be instructed that an accomplice is a com-
petent witness,^® and that they may legally convict on his
testimony, unless there is a statute providing that there can
be no conviction on the uncorroborated testimony of an ac-
complice;^'^ 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.*^
An instruction that an accomplice is a competent witness,
and if the jury, weighing the probabilities of his evidence,
think him worthy of belief, a conviction, supported by such
23 state V. Hardin, 19 N. C. 407; United States v. Sykes, 58 Fed.
1000.
24 Com. v. Bosworth, 22 Pick. (Mass.) 398; State v. Barber, 113 N.
C. 711; State v. Hardin, 19 N. C. 407.
25 State v. Hardin, 19 N. C. 407.
28 Wisdom V. People, 11 Colo. 170.
27 Wisdom V. People, 11 Colo. 170; State v. Barber, 113 N. 0. 711;
Olive V. State, 11 Neb. 1; State v. Hyer, 39 N. J. Law, 603; Rex v.
Wilkes, 7 Car. & P. 272; Com. v. Price, 10 Gray (Mass.) 472, 71 Am.
Dec. 668; Com. v. Brooks, 9 Gray (Mass.) 299; United States v.
Babcock, 3 Dill. 619, Fed. Cas. No. 14,487; Reg. v. Stubbs, 33 Eng.
Law & Eq. 551; Collins v. People, 98 111. 589; Earll v. People, 73 111.
333; State v. Dawson, 124 Mo. 418; State v. Crab, 121 Mo. 554.
28 See ante, § 217, "Instructing Jury to Receive Accomplice Testi-
mony with Caution," and ante, § 218, "Advising Jury to Acquit Un-
less Corroborated."
(483)
I 217 INSTRUCTIONS TO JURIES. [Ch. 25
testimony alone, is legal, is correct, the jury being further
instructed that evidence from an accomplice should be re-
ceived with great caution.^® So, an instruction that "the
fact that a witness was an accomplice may affect his credi-
bility, 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.^" So, an instruction that, "while it is a
rule of law that a person may be convicted upon the imcor-
roborated testimony of an accomplice, still a jury should al-
ways 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 examination of
such testimony, you are satisfied beyond all reasonable doubt
of its truth," is not erroneous in a jurisdiction 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.^-' 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 allowing one offender to turn
state's evidence and to escape, that another may be con-
victed and punished." The policy of using the evidence of
an accomplice should not be discussed in the instructions to
the jury.^^
§ 217. Instructing jury to receive with caution.
Except in one state,'''^ it seems to be the well-settled and
29 Wisdom V. People, 11 Colo. 170.
30 State V. Banks, 40 La. Ann. 736.
31 State V. Coates, 22 Wash. 601, 61 Pac. 726.
32 Long V. State, 23 Neb. 33.
33 In West Virginia it seems that no caution as to accomplice tes-
(484)
Ch. 25] PROBATIVE FORCE OF EVIDENCE. § 2.7
almost universal practice for the court to instruct that the
testimony of accomplices should he viewed by the jury with
great care and caution.^* It has been held, however, that,
in the absence of a request, failure to give such an instruc-
tion cannot be assigned as error.*^ There is some diversity
of opinion as to whether a refusal to give an instruction of
this nature, when requested, vidll be ground for reversal.
There are rulings both ways on this point.^® So it has been
held error to refuse to charge "that the evidence of an accom-
plice 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.^^ It has
timony is proper. In that state it has been said that, while such
testimony is suspicious, and emanates from a had 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, evidence. State v. Betsall, 11
W. Va. 704.
34 Olive V, State, 11 Neb. 1; Long v. State, 23 Neb. 33; United
States V. Sykes, 58 Fed. 1004; United States v. Harries, 2 Bond, 311,
Fed. Cas. No. 15,309; United States v. Babcock, 3 Dill. 619, Fed.
Cas. No. 14,487; State v. Brown, 3 Strob. (S. C.) 508; State v. Miller,
97 N. C. 484; Ferrall v. Broadway, 95 N. C. 551; State v. Hardin, 19
N. C. 407; Arnold v. State, 5 Wyo. 439; State v. Dawson, 124 Mo.
418; State v. Walker, 98 Mo. 95; State v. Harkins, 100 Mo. 666;
State V. Minor, 117 Mo. 302; State v. Jackson, 106 Mo. 174; State v.
Donnelly, 130 Mo. 642; State v. Dana, 59 Vt. 614; People v. Costello,
1 Denio (N. Y.) 87; Com. v. Price, 10 Gray (Mass.) 472; State v.
Kellermari, 14 Kan. 135; State v. Coates, 22 Wash. 601.
35 State V. Rook, 42 Kan. 419.
36 A refusal is ground for reversal. Solander v. People, 2 Colo.
48; Cheatham v. State, 67 Miss. 335. A refusal is not ground for
reversal. Hoyt v. People, 140 111. 588. See, also, State v. Jones, 64
Mo. 391.
37 People v. Sternberg, 111 Cal. 11; People v. Strybe (Cal.) 36
Pac. 3. To the same effect, see People v. Bonney, 98 Cal. 278, in
which It was held that, where the only evidence to justify a verdict
against the defendant was the testimony of an admitted accomplice
(485)
§ 218 INSTRUCTIONS TO JURIES. [Ch. 25
been held, however, 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 discredit
a witness for the defendant, and charges the jury with re-
spect to matters of f act.^*
§ 218. 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.^® As was said by a learned judge, "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 accojnplice, unless the accomplice is cor-
roborated in some material circumstance."*" And it was
and that of a third person as to defendant's oral admissions, the re-
fusal of the court to Instruct the jury that "the testimony of an ac-
complice ought to ba viewed with distrust, and the evidence of the
oral admissions of a party with caution," is prejudicial error.
38 People V. O'Brien, 96 Cal. 171; People v. Bonney, 98 Cal. 278.
39 Reg. V. Stubbs, 33 Eng. Law & Eq. 551; Rex v. Wilkes, 7 Car. &
P. 272; Rex v. Jones, 2 Camp. 132; Flanagin v. State, 25 Ark. 96;
United States v. Neverson, 1 Mackey (D. C.) 154; Com. v. Bosworth,
22 Pick. (Mass.) 398; Com. v. Brooks, 9 Gray (Mass.) 299; Com. v.
Bishop, 165 Mass. 148; Allen v. State, 10 Ohio St. 288; State v. Wil-
liamson, 42 Conn. 263; State v. Prudhomme, 25 La. Ann. 522; State
v. Hyer, 39 N. J. Law, 598; McNeally v. State, 5 Wyo. 67; State v.
Mason, 38 La. Ann. 476; Barll v. People, 73 111. 333; Hoyt v. People,
140 111. 588; Collins v. People, 98 111. 584; Schulz. v. Schulz (111.) 30
N. E. 317; State v. Haney, 19 N. C. 390; Cox v. Com., 125 Pa. 94;
Watson v. Com., 95 Pa. 424; Cheatham y. State, 67 Miss. 335; State
V. Green, 48 S. C. 136; State v. Walker, 98 Mo. 95; State v. Chyo
Chiagk, 92 Mo. 415; State v. Potter, 42 Vt. 496; State v. Barber, 113
N. C. 711; Ingalls v. State, 48 Wis. 647; Black v. State, 59 Wis. 471;
United States v. Sykes, 58 Fed. 1004; Steinham v. United States, 2
Paine, 180, Fed. Cas. No. 13,355.
Lockhart v. State, 29 Tex. App. 35.
71 People V. Sansome, 98 Cal. 235.
72 People V. Curlee, 53 Cal. 604.
TsBallew v. State (Tex. Cr. App.) 34 S. W. 616; White v. State
(Tex. Cr. App.) 62 S. W. 749; Powell v. State (Tex. Cr. App.) 57 S.
W. 94.
74 Rafferty v. People, 72 111. 37.
(493)
§ 223 INSTRUCTIONS TO JURIES. [Ch. 25
course, if a witness is admitted to testify solely as an accom-
plice, the court may properly assume that he is an accom-
plice, in giving instructions^^ Where unequivocal and un-
contradicted 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.'*
Where defendant's principal turns state's evidence, an in-
struction 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 confession as to his part in the crime.'^
§ 222. Instructions giving undue weight to accomplice testi-
mony.
It is improper to charge "that the jury are bound to ac^
cept and credit testimony of an accomplice, either standing
alone or more or less corroborated. It is their province to
determine whether he is to be credited at all, and, if so, to
what extent."'^^ So, in case of a dismissal of the indictment
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 consideration in deter-
mining the credibility of the accomplice.'"*
§ 223. Evidence on wMcli to base instructions necessary.
To invoke instructions on the law in regard to accom-
plice's testimony, there must be evidence to which the in-
'o Barrara v. State, 42 Tex. 260; Zolliooffer v. State, 16 Tex. App.
312.
76 Torres v. State (Tex. Cr. App.) 55 S. "W. 828.
77Wilkerson v. State (Tex. Cr. App.) 57 S. W. 956.
78 Hamilton v. People, 29 Mich. 174.
79 Gill V. State, 59 Ark. 422.
(494)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. g 223
struetions would be applicable.*" But where tbe evidence
as to whether a witness was an accomplice or not is conflict-
ing, it is error to refuse an instruction defining an accom-
plice.*-' In the absence of any evidence to show that a wit-
ness who has testified is an accomplice, instructions as to the
effect of accomplice's testimony should not be given.*^ By
parity of reasoning, no instruction should be given as to the
effect of testimony of accessories when there is no evidence
to show that any witness is an accessory.** "Mere knowl-
edge on the part of a witness that the defendant committed
the crime does not render such witness an accomplice, so as
to require corroboration of his testimony."*'* So, the mere
fact that a witness of the crime charged remains silent con-
cerning it will not warrant an instruction on accomplice's
testimony.*^ Where the testimony of an accomplice does
not in the least contribute to a conviction, it is unnecessary
to instruct as to necessity of corroboration.*® Where, in a
prosecution for establishing a lottery, it appears that the lot-
tery 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
soPitner v. State, 23 Tex. App. 366; Kerrigan v. State, 21 Tex.
App. 487; Brown v. State, 6 Tex. App. 286.
siBuddeth v. State, 112 Ga. 407.
s2Tuberson v. State, 26 Fla. 472; Smith v. State, 28 Tex. App. 309;
May V. State, 22 Tex. App. 595; Moseley v. State, 36 Tex. Cr. App.
578; People v. Chadwick, 7 tJtali, 134; Lawrence v. State, 35 Tex.
Cr. App. 114.
83 State V. Morgan, 35 "W. Va. 260.
84 Smith V. State, 28 Tex. App. 309.
86 O'Connor v. State, 28 Tex. App. 288. In this case, certain Mexi-
cans were witnesses for the state. At the time of the murder, which
they saw, they were several hundred miles from home, and did not
know the English language and the person killed, and the defend-
ants were Americans, and not known to the witnesses.
88 Waggoner v. State, 35 Tex. Cr. App. 199.
(495)
§ 224 INSTRUCTIONS TO JURIES. [Ch. 25
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.*^
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 wit-
ness 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 testi-
mony of such witness.**
§ 224. Same — Evidence held sufficient to warrant instructions.
The following state of facts has 'been held sufficient to
warrant the giving of an instruction on accomplice testimony :
"In a trial for attempting to produce an abortion, the fe-
male's father was a witness for -the prosecution, and testi-
fied that the defendant informed him of his daughter's preg-
nancy, and suggested that he (the defendant) could give her
a drug that would remove it, whereupon he (the witness)
replied, 'AH right ; anything to save my child.' "*^ So, 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 testimony, and
87 Prendergast v. State (Tex. Cr. App.) 57 S. W. 850.
88 Conde v. State, 33 Tex. Cr. App. 10.
8» Watson V. State, 9 Tex. App. 237.
(496)
Ch. 2SJ PROBATIVE FORCE OF EVIDENCE. § 225
its corroboration."®" It is beyond tbe scope of this book to
consider fully what constitutes an accomplice; but any evi-
dence whicli tends to connect the witness with the commis-
sion of the offense is sufficient to require or justify a charge
on accomplice testimony.*^
III. Testimony of Paktibs and Intebestbd Witnesses.
S 225. What instructions proper.
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."^ Where
no question is made but that the defendant has an absolute
right to testify in his own behalf, an instruction that, "un-
der the statute of this state, a defendant in a criminal ac-
tion is permitted to be a witness in his own behaK, 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."®' So, also, it is proper to charge that
the jury must consider his testimony;®* and that the jury
have no right to disregard defendant's testimony merely be-
cause he is the defendant.®^ An instruction that, while the
»i) Freeman v. State, 11 Tex. App. 93.
81 See Brace v. State (Tex. Cr. App.) 62 S. "W. 1067.
»2 Creed v. People, 81 111. 569; Rider v. People, 110 111. 13; State
T. Sterrett, 71 Iowa, 386. See State v. Miller, 162 Mo. 253; State v.
Adair, 160 Mo. 391; State v. Miller, 159 Mo. 113.
93 State V. Porter, 32 Or. 135.
»i State V. Sterrett, 71 Iowa, 386.
95 Creed v. People, 81 111. 565. Compare Lang v. State (Fla.) 28
So. 856. An Instruction that "the defendant is a colnpetent witness
in his own behalf, and his evidence should not be discarded by the
jury for the reason alone that he is the defendant on trial, but such
fact may be considered by the jury in determining the credit to be
given to his testimony; and the jury are further instructed that
(497)
32 — Ins. to Juries.
§ 225 INSTRUCTIONS TO JURIES. [Ch. 25
jury should not disregard the testimony of the defendant,
they should consider his interest, has been held proper,*®
The jury may also be instructed to give defendant's "testi-
mony such weight, in connection with the other evidence in
the case, as you think it entitled to, and no more;""^ that,
"if convincing, and carrying with it a belief in its truth,"
the jury may act upon it, and, if not, they have a right to
reject it;^* or that the jury are "to consider 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;®^ or that the jury are under no obligation to
believe it if they consider it unreliable.'""' So, a statement
of the legal effect of contradictory statements may properly
be given to the jury in relation to the testimony of a defend-
ant in a criminal trial.^"* The rules that govern other wit-
nesses apply to the accused when he goes upon the stand, 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 consideration in determining the
they are the sole judges of the credibility of the ■witnesses and the
weight of testimony, and, if they believe that any witness has in-
tentionally testified falsely as to any material fact in the case, they
may disregard the whole or any part of the testimony of such wit-
ness," — is erroneous, as telling the jury that they may discard the
testimony of accused on some ground. The jury should not be in-
vited to discard the testimony of defendant, but to weigh it. State
v. Austin, 113 Mo. 543; State v. Miller, 162 Mo. 253.
90 state v. Ryan (Iowa) 85 N. W. 812.
97 State V. Sterrett, 71 Iowa, 386; Solander v. People, 2 Colo. 48;
Meyer v. Blakemore, 54 Miss. 574; Barber v. State, 13 Pla. 675.
98 People V. O'Neal, 67 Cal. 378; People v. Cronin, 34 Cal. 195; Peo
pie v. Morrow, QO Cal. 147.
09 Lewis v. State, 88 Ala. 11.
100 Creed v. People, 81 111. 569; State v. Elliott, 90 Mo. 350.
101 Faulkner v. Territory, 6 N. M. 464.
(498)
Cb. 25] PROBATIVE FORCE OF EVIDENCE. § 22£
weight of his testimony.^"^ 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.'^"^ It has also been held proper
to charge "that if, after considering 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 testi-
mony, excepting in so far as his testimony is corroborated by
other credible evidence."-'*** This instruction, however, it
is believed, violates the rule against singling out a witness,
and applying to him alone the maxim, Falsiis in uno, etc.-"'®
Where the defendant testifies in his own behalf, he is en-
titled, on request, to an instruction "that the fact that he is
the defendant is not of itself sufficient to impeach or dis-
credit iiis testimony," especially where the requested instruc-
tion contains the further statement that the jury may take
into consideration the fact that the witness is the accused. ■"•*
And it has been held error to refuse defendant's request for
an instruction that 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 dis-
believe the evidence, of any noninterested witness if his evi-
dence appears impossible or improbable."^"'^ It has been
102 Rider v. People, 110 111. 13; Hinton v. Cream City R. Co., 65
Wis. 335; Hatfield v. Chicago, R. I. & P. Ry. Co., 61 Iowa, 434.
103 People v. Jones,. 24 Micli. 216. See, also, Durant v. People, 13
Mich. 355.
104 Rider v. People, 110 111. 11; People v. Petmecky, 99 N. Y. 415.
106 See post, §§ 252-256, "Instructions as to maxim, 'Falsus in Uno,
Falsus in Omnibus.' "
100 State V. Metcalf, 17 Mont. 417. Compare Lang v. State (Fla.)
28 So. 856.
lov Hunter v. State, 29 Fla. 486.
(499)
§ 235 INSTRUCTIONS TO JURIES. [Ch. :S
held, however, that the court need not, of its own motion, in-
struct 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 tending to exonerate him-
self.^"* On the other hand, it has been held that an instruc-
tion that the jury "must give it [the testimony of defend-
ant] the same consideration they would any other witness''"
should be refused.^"^ So, a similar instruction that defend-
ant'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 limited to any act not con-
nected 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 disinter-
ested. 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."^^^ An instruction that "the testi-
mony [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
los People V. Rodundo, 44 Cal. 538.
io9McKee v. State, 82 Ala. 32; People v. Calvin, 60 Mich. 114.
Where defendant offers himself as a witness, he stands the same as
any other -witness, and the court may instruct that his testimony
should be weighed like that of any other, though the state succeeded
in having his answers to questions excluded, and the state was re-
fused permission to cross-examine. State v. Ulsemer (Wash.) 64
Pac. 800.
1" People v. Ferry, 84 Cal. 31.
(500)
Ch. 25] PROBATIVE FORCE OF EVIDENCE. § 225
of itseK, it cannot be true," is proper.^^* But in anotlier
state an instruction "that the jury were not bound to be-
lieve 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 wit-
ness] is defendant," is held to be in violation of a statute
which provides that "no person shall be disqualified as a wit-
ness in any criminal case * * * by reason of his inter^
est in the event of the same."^^* The court may properly
direct the jury to scrutinize with caution the testimony of
relations,-^ ■'^ but the omission to give this caution cannot be
assigned as error. ■'^^ It has also been held proper to charge
"that the law regarded with suspicion the testimony of near
relations."^^® It is proper to refuse an instruction that the
testimony of a witness is to be distrusted because, if the suit
or prosecution should terminate in a cartain way, he would
be benefited pecuniarily.* ^'^ The court may properly in-
struct "that you, the jury, are the sole judges of the credi-
bility of witnesses and the weight of evidence ; but you should
be circumspect in the consideration of evidence given by
either side which it is impossible, 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."***
And an instruction that the testimony of interested witnesses
"2 People T. Petmecky, 99 N. T. 421.
"3 Chambers v. People, 105 111. 412.
"* State v. Byers, 100 N. C. 512; Ferrall t. Broadway, 95 N. C.
551.
115 Wiseman v. Cornish, 53 N. C. 218.
lie State v. Nash, 30 N. C. 35.
117 Com. V. Pease, 137 Mass. 576.
118 Meyer v. Blakemore, 54 Miss. 575.
(501)
§ 225 INSTRUCTIONS TO JURIES. [Ch. 25
is to be examined with greater care than that of disinter-
ested witnesses has been approved.^^' So it has been held
that the defendant in a criminal case is entitled to an in-
struction that greater care should be exercised in weighing
the testimony of informers, detectives, or other persons em-
ployed to hunt up evidence against him than in the case of
witnesses who are wholly disinterested.^^" 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 be told to closely examine such evidence.^^'
An instruction: "While it is the law that the testimony of
the prosecutrix should be carefully scanned, still this does
not mean that such evidence is never sufficient to convict.
If you believe the prosecutrix, it is your duty to render a
verdict accordingly," — is not open to the objection that it
tells the jury that they may act on the testimony if they
believe it, although it may not be sufficient in substance,
though true, to establish the offense.-'^' Where the right to
recover is based almost entirely upon the testimony of plain-
tiff, the defendant has a right to have the jury told specific-
ally that they may consider the interest of any of the wit-
nesses in the result of the suit, and it is error to refuse an
instruction that "the jury are the sole judges of the credi-
bility of the witnesses and the weight to be given to their tes-
timony, and, in passing upon the testimony of any witness,
the jury have a right to take into consideration the inter-
est any such witness may have in the result of this trial, the
110 Hlnton v. Cream City R. Co., 65 Wis. 335.
120 Sandage v. State (Neb.) 85 N. W. 35. But compare Cooney t.
State (Neb.) 85 N. W. 281.
121 Fidelity Mut. Life Ass'n v. Jeffords (0. G. A.) 107 Fed. 402.
123 People V. Wessel, 98 Cal. 352.
(502)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. 226
manner of testifying, and the former life or history any such
witness may have given of him or herself in this case."^**
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 proba-
bilities of the case, the jury may take into consideration the
delay of the plaintiffs in bringing the suit.-'^^ The court
should, on request, charge "that any money offered or prom-
ise made to the accomplice, to induce him to testify, is ma-
terial, as bearing on the credibility of the witness," if there
is evidence on which to base such an instruction.-'^^ A fail-
ure to comment on all the circumstances tending to discredit
or corroborate the witnesses is not error, as there is no rule
of law requiring such comments.-'^''
§ 226. What instructions improper.
In instructing as to the credibility of the testimony of the
accused in a criminal case, the court should refrain from
making hostile comments upon such testimony.-*^* It is
therefore erroneous to draw a comparison between the testi-
mony 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 con-
fronting this defendant, who stands before you as an inter-
ested party.'"^® And for the same reason it is improper to
instruct that "something more tangible, real, and certain than
i2* Lancashire Ins. Co. v. Stanley (Ark.) 62 S. W. 66.
«B Walker v. Harvey (C. C. A.) 108 Fed. 741.
12S People V. Butler, 62 App. Dlv. (N. Y.) 508.
121 Faulkner v. Paterson Ry. Co. (N. J. Sup.) 46 All. 765.
»2» Hicks v. United States, 150 U. S. 442.
i2« Hickory v. United States, 160 U. S. 408.
(503)
§ 226 INSTRUCTIONS TO JURIES. [Ch. 25
a simple declaration of the accused is necessary to show self-
defense on a murder trial."^^" So it is error for the court
to place the defendant in a separate and inferior class from
all other witnesses, by instructing that the jury are not bound
to treat his evidence the same as that of other witnesses.^ ^^
Thus, an instruction that the jury have no right to disregard
the testimony of the defendant on the ground alone that he
is charged with crime, but that the law presumes him inno-
cent until he is proved guilty, and that his testimony should
be fairly weighed, is properly refused as directing the jury
to weigh his testimony by an arl)itrary standard.^ ^^ An in-
struction that the jury "shall not capriciously reject the testi-
mony of the defendant simply because he is interested, but,
imless the jury have good reason to believe, under all the cir-
cumstances, that the defendant has sworn falsely, then the
jury should believe his testimony, and consider it along with
all other testimony in the case in making up their verdict," is
faulty in that it is argumentative, and also invades the prov-
ince of the jury in instructing them as to what they should be-
lieve.^ ^^ An instruction that the jury have no right to disre-
gard the defendant's testimony merely because he is the de-
fendant is properly refused, where the court has given full in-
structions as to how the jury should weigh the testimony of
witnesses generally.^^* An instruction that the jury "must
bear in mind the tendency on the part of the guilty, when ac-
130 Allison V. United States, 160 U. S. 203.
131 Hellyer v. People, 186 111. 550, wherein it was held error to in-
struct that, while defendant is a competent witness, yet his credi-
bility and the weight of his evidence are exclusively for the jury,
and, while the jury should not disregard his evidence through mere
caprice, yet they are not bound to believe him, but may take into
consideration his interest in the result.
132 Lang V. State (Fla.) 28 So. 856.
issBodine v. State (Ala.) 29 So. 926.
134 Lang V. State (Fla.) 28 So. 85S.
(504)
Ch. 25] PROBATIVE FORCE OF EVIDENCE. § 226
cused of crime, to fabricate some story or stories which they
think may effect their acquittal," is erroneous, and prejudicial
to the defendant.^*" So, in instructing as to the credibility of
interested witnesses generally, whether parties or not, it is im-
proper to instruct that a witness' interest affects his credit,^*'
or that, "if the witness is interested in the result of the
prosecution, this tends to discredit him."^^'^ So, the court
should not charge that "one interested will not usually be as
honest and candid as one not so ;"^^* or 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 witnesses ;"^^® or that the court admitted the
testimony of a witness with great doubt as to its admissibil-
ity, on account of her relationship to a party;^*** or that,
where two adverse "witnesses appear to be equally credible
in every other respect, the one who appears to have the greater
interest in the result of the case is to have the less weight
of the two ;"^*^ or "that the weight to be given to the testi-
mony of the plaintiff and defendant, as witnesses, depends
upon the interest each may have in the result of the suit,"^*^
135 State V. Hoy, 83 Minn. 286.
136 Davis V. Central R. Co., 60 Ga. 329, in which it was said the
better instruction is "that it may affect his credit, and that it is for
the consideration of the jury, they being the judges of whether it
does or does not influence his testimony, and, if so, to what extent."
137 Pratt V. State, 56 Ind. 179.
138 Veatch v. State, 56 Ind. 584; Greer v. State, 53 Ind. 420,
139 Nelson v. Vorce, 55 Ind. 455.
"o Potts V. House, 6 Ga. 324.
1*1 Lee V. State, 74 Wis. 45, in which it was alleged, as a reason,
that such instruction leaves out any consideration of surrounding
circumstances, or of the effect of corroborative testimony.
142 Dodd V. Moore, 91 Ind. 522. Compare Hess v. Lowrey, 122 Ind.
234, where it was held that an instruction "that the credit and
weight that should be attached to the testimony of the witness de-
pends upon his disinterestedness in the result of the suit, and his
freedom from bias or prejudice," was not ground for reversal where
(505)
§ 226 INSTRUCTIONS TO JURIES. [Ch. 25
or to state "that an important witness * * * on the
material question at issue was 'apparently interested';'""
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;"*** or that the tes-
timony of a disinterested witness is entitled to more weight
than that of plaintiff.'*^ "Where the witness, from motives
of friendship or from family ties, makes statements favor-
able 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."**® 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 testi-
mony was not contradicted, and was not inherently improb-
able.**^ An instruction that "the jury have the right, and
may take the liberty, of disregarding the witnesses of the de-
fendant, 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
there was nothing to show that it was more prejudicial to one party
than the other.
"8 Lellyett v. Marltham, 57 Ga. 13.
iti Omaha Belt Ry. Co. v. McDermott, 25 Neb. 714.
140 Platz V. McKean Tp., 178 Pa. 601, in which it was said: "The
fact that the witness has an interest in the case may and should
be considered in determining what weight should be given to his
testimony, but we know of no legal warrant for an instruction from
the court that the testimony of a disinterested witness is entitled to
'more weight' than his."
"8 Barnard v. Com. (Ky.) 8 S. W. 444.
"7 Tyler v. Third Ave. R. Co., 18 Misc. Rep. (N. Y.) 165.
(500)
Ch, 25] PilOBATIVE FORCE OF EVIDENCK. § 226
witness interested, and giving to the jury a discretion to re-
fuse to consider evidence which is competent.^** It is improp-
er to instruct that the jury may remember that a defendant
testifying is interested in the result of the prosecution, and
that they may, if they think that fact sufEcient, entirely disre-
gard his testimony if it is in conflict with the other evidence,
as such instruction authorizes the jury to disregard the testi-
mony, though they may believe it;^*' or that, if the plaintiff
swears one way and defendant another, the jury should leave
the parties as it finds them;^^" or that the testimony of the
party in interest should "be disregarded, unless corroborated
by other witnesses, or by documentary evidence ;"^^^ 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 ;^^^ or that, "in weigh-
ing the evidence, the jury are to remember that the plaintiff is
the most interested party in the controversy. They are to
receive his evidence, therefore, with caution, as being that of
a partial witness, and they are empowered to reject any evi-
dence which is uncorroborated, even though it be uncontra-
dicted."^''* 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
148 Berzevi^ v. Delaware, L. & W. R. Co., 19 App. Div. (N. Y.) 309.
"» Allen V. State, 87 Ala. 107.
100 McLean v. Clark, 47 Ga. 24.
101 Prowattain v. Tindall, 80 Pa. 297.
102 State V. Patterson, 98 Mo. 283.
103 Coloritype Co. v. Williams, 24 C. C. A. 163, 78 Fed. 450.
(•507)
§ 226 INSTRUCTIONS TO JURIES. [Ch. 25
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.^^*
Where an instruction was asked, "that, under the law, the
evidence of the defendants is just as proper for your consid-
eration in determining their guilt or innocence as the evi-
dence of other witnesses," it was held proper to m.odify "the
same by striking out the words, 'as the evidence of other
witnesses,' and adding, 'and should receive such weight as
you think it entitled to.' '"^^ So, a request for an instruc-
tion that the jury should weigh, examine, and test defendant's
testimony, "the same as it does the testimony of all the other
witnesses in the case," w'as properly modified by striking
therefrom the words quoted. ■'^® An instruction that defend-
ant'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.^ ^'^ It has been held proper to refuse
an instruction which is not clear in its statement of the legal
principle, and which impresses "the jury that they ruust
consider any interest, 'either financial or otherwise,' that each
witness may have in the event of the suit."^*^* An instruc-
tion suggesting that "suspicion attaches to the testimony of
IB* State V. Pomeroy, 30 Or. 16.
165 BuUiner v. People, 95 111. 407.
1B6 People V. Cowgill, 93 Cal. 596. See, also, Clark v. State (Tex.
Cr. App.) 59 S. W. 887.
157 Childress v. State, 86 Ala. 77.
108 City of Lincoln v. Beckman, 23 Neb. 677.
(SOS*)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. § 227
agents or servants of a corporation or individual by reason
of their employment, or that they have any such interest as
requires them to be dealt v?ith differently from other wit-
nesses," should not be given.^^^ It is improper to cast dis-
credit upon a medical witness because he may have attended
the trial from an adjoining state, with the expectation that
his expenses would be paid. Presumally, the witness was
actuated by humane motives.^®" Where the only evidence
of the character of the defendant is that he .was a quiet and
peaceable man, it is proper to refuse an instruction 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."^®' 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 de-
fendant, or of its attention being called in time to its failure
to instruct upon the law of the case.^**
§ 227. Instructing that jury "may" consider interest of party
or witness.
In all jurisdictions, except Kentucky, Mississippi, and
IBS Marquette, H. & 0. R. Co. v. Kirkwood, 45 Mich. 53; West Chi-
cago St. R. Co. V. Raftery, 85 III. App. 319. An instruction that the
jury "will consider the interest of the parties; consider the relation-
ship as well as the employment, as calculated to bias, whether it
biased in this case," — is not erroneous as intimating "that employ-
ment would necessarily bias a witness." Central of Georgia Ry. Co.
V. Bernstelii (Ga.) 38 S. B. 394.
160 Bradley v. State, 31 Ind. 492.
isiBodine v. State (Ala.) 29 So. 926.
162 state V. Furgerson, 162 Mo. 668.
(509)
§ 327 INSTRUCTIONS TO JURIES. [Ch,. 25
Texas, it is held that the court may properly instruct the
jury that they may consider the interest of the person testi-
fying, whether as a party or witness, in determining his
credibility.^^* The jury may be instructed that, in deter-
mining the credit to be given to the testimony of defendants,
"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 ex-
tent, if at all, such interest may color their testimony 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."^®* And an instruction of similar import, re-
i63Norris v. State, 87 Ala. 85; Hamilton v. State, 62 Ark. 543;
Brassier v. People, 117 111. 439; Siebert v. People, 143 111. 571; Rider
V. People, 110 111. 11; State v. Metcalf, 17 Mont. 417; Faulkner v.
Territory, 6 N. M. 464; Territory v. Romine, 2 N. M. 114; State v.
Bohan, 19 Kan. 35; Haines v. Territory, 3 Wyo. 167; People v.
Knapp. 71 Gal. 1; Clark v. State, 32 Neb. 246; Barmby v. Wolfe,
44 Neb. 77; Dixon v. State, 46 Neb. 298; BuUiner v. People,
95 111. 407; City of Harvard v. Croucb, 47 Neb. 133; State v.
Carey, 15 Wash. 549; State v. Nordstrom, 7 Wash. 506; Klepscb
V. Donald, 4 Wash. 436; State v. McCann, 16 Wash. 249; State
V. Carey, 15 Wash. 549; Felker v. State, 54 Ark. 489; Chicago
& A. R. Co. V. Anderson, 166 111. 572; State v. Zorn, 71 Mo. 415; State
V. Wells, 111 Mo. 533; State v. Maguire, 69 Mo. 197; State v. McGin-
nis, 76 Mo. 326; State v. Patterson, 98 Mo. 283; State v. Kelly, 9 Mo.
App. 512, affirmed in 73 Mo. 608; State v. Miller, 93 Mo. 263; State
v. Wisdom, 84 Mo. 190; State v. Parker, 39 Mb. App. 116; State v.
Morse, 66 Mo. App. 303; McDonell v. Rifle Boom Co., 71 Mich. 61;
Davis V. Central R. Co., 60 Ga. 329; Goodwine v. State, 5 Ind. App.
63; Randall v. State, 132 Ind. 539; Lake Erie & W. Ry. Co. v. Par-
ker, 94 Ind. 91; Young v. Gentis, 7 Ind. App. 199; Wabash R. Co. v.
Biddle (Ind. App.) 59 N. B. 284; Clarey v. State (Neb.) 85 N. W.
897; Lancashire Ins. Co. v. Stanley (Ark.) 62 S. W. 66.
i64Norris v. State, 87 Ala. 85; Bressler v. People, 117 111. 439;
Siebert v. People, 143 111. 571; Rider v. People, 110 111. 1; State v.
Metcalf, 17 Mont. 417; Halderman v. Territory (Ariz.) 60 Pac. 876;
State V. Adair, 160 Mo. 391; State v. Miller, 159 Mo. 113.
(510)
Ch. 25] PROBATIVE FORCE OF EVIDENCE. § 227
lating to the credibility of parties in civil cases, is proper.^"-'
In giving instructions in criminal cases, the following in-
structions have also been approved : "The defendant is com-
petent to testify as a witness in this case, but the fact that
he is the defendant may be shown for the purpose of affect-
ing his credibility."^®* "The defendant is a competent wit-
ness in his own behalf, but the fact that he is a witness testi-
fying in his own behalf may be considered by the jury in
determining the credibility of his testimony."^*'' "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."^®^ That, "in case of the de-
fendant, you have a right to take into consideration the great
interest he has in your verdict."^*^ 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."-'''''
That "it will be proper for you to consider the fact that he is
the defendant, and that greatest possible temptation is present-
ed to him to testify in his own favor, if he is really guilty."^'^
But, in instructing the jury that they may consider the in-
terest of a defendant as affecting his credibility, it is erro-
neous to give this statement undue weight by repetition.^^^
165 Lake Erie & W. R. Co. v. Parker, 94 Ind. 91; Young v. Gentis,
7 Ind. App. 199; Chicago & G. T. Ry. Co. v. Spurney, 69 111. App. 549.
186 State V. Zorn, 71 Mo. 415.
167 State V. Maguire, 69 Mo. 197. See, also, State v. Wisdom, 84 Mo.
190, in wticli an instruction almost identical with the one set out
above was approved.
168 State V. McGinnis, 76 Mo. 326.
169 state V. Bohan, 19 Kan. 35.
170 Faulkner v. Territory, 6 N. M. 464.
171 Territory v. Romine, 2 N. M. 114. This case was decided be-
fore the statutory provision against charging on the weight of the
evidence was passed.
172 Clark V. State, 32 Neb. 246.
(511)
§228 INSTRUCTIONS TO JURIES. [Ch. 25
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.^^* Where the wife of a defendant is a witness, the
court may instruct that, in weighing her testimony, the jury
may take into consideration 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 Effecting
credibility.-^^* 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.^^^ It is 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 affect-
ing the credibility of the witnesses on the other side.-"^* So,
an instruction calling the jury's attention to the plaintiff's
interest in the suit as affecting his credibility is properly re-
fused if the test of interest is applicable to other witnesses
in the case.-''''^
§ 228. Same — ^Rule in Kentucky, Mississippi, and Texas.
In these jurisdictions, instructions of the kind mentioned
1T3 Klepsch V. Donald, i Wash. 436; City of Harvard v. Crouch, 47
Neb. 133; McDonell v. Rifle Boom Co., 71 Mich. 61. In the last case,
the instruction approved was as follows: "Now, it is said that some
of these witnesses are interested in or in the employ of the hoom
company, and you are to consider that circumstance in weighing your
testimony. You have a right to do that, gentlemen, and if you think
that any circumstance of that kind has operated upon their judg-
ment, so that they have not been able to form an impartial judg-
ment, you must consider their testimony for what it is worth."
1" State V. Parker, 39 Mo. App. 116.
170 Haines v. Territory, 3 Wyo. 167; Chicago & A. R. Co. v. Ander-
son, 166 111. 572.
"s Phenix Ins. Co. v. La Pointe, 118 111. 389.
177 Pennsylvania Co. v. Versten, 140 111. 637.
(512)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. § 228
in tte preceding section cannot be given. Tims, in Ken-
tucky, it has been held that the court has no right to direct
attention to the interest of witnesses in the result or charac-
ter of statements made by them, the jury being the sole judges
of the weight of the evidence, and of the credibility of the
witnesses.-*^* So, in Mississippi, 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;"^''* or that, "if the
jury believe from the evidence that any witness who has tes-
tified in this ease has any feeling or interest in the result of
this trial, then the jury should consider such feeling or in-
terest in connection with all the evidence in the case in de-
termining how far, if at all, they will believe such witness
or consider such testimony.'"^" In one of these decisions
it was said: "A defendant has the right to submit his tes-
timony to the jury to be judged of by it, uninfluenced by any
suggestions 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 excul-
pation 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."^®^ In Texas, the decisions in
civil cases are unanimous to the effect that it is improper to
tell the jury that they may consider the interest of the wit-
178 Wright V. Com., 85 Ky. 123.
179 Buckley v. State, 62 Miss. 705.
ISO Woods V. State, 67 Miss. 575. To the same effect, see Towns-
end V. State (Miss.) 12 So. 209.
181 Buckley v. State, 62 Mi?s. 705.
. , (513)
33 — Ins. to Juries. ^ '
§ 229 INSTRUCTIONS TO JURIES. [Ch. 25
nesses in the matter in controversy in determining their cred-
ibility.-'*^ In criminal cases there seems to be some diversity
of opinion, and, while there are some cases in which instruc-
tions of this nature have been approved,^*^ a later decision
overrules the former cases and holds that it is erroneous to
give such an instruction,-'** and this doctrine now seems to
be the settled law.-'*^ 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 cer-
tain witness or witnesses.^*® It is proper to refuse a charge
that, in weighing the testimony of defendant, the jury should
treat him as any other witness, judging his appearance, de-
meanor, ete.-'*'^
§ 229. Instructing that jury "must" or "should" consider in-
terest of party or witness.
According to the weight of authority, it is proper for the
court to instruct "that, in weighing and determining the
3S2 Willis V. Whitsltt, 67 Tex. 673; Kellogg v. MoCabe, 14 Tex^
Civ. App. 598.
1S3 Brown v. State, 2 Tex. App. 115; Cockerell v. State, 32 Tex. Or.
App. 585; Adam v. State (Tex. Cr. App.) 20 S. W. 548.
i84HarreU v. State, 37 Tex. Cr. App. 612..
1S5 Shields v. State, 39 Tex. Cr. App. 13; Oliver v. State (Tex. Cr.
App.) 42 S. W. 554.
ISO Harrell v. State, 37 Tex. Cr. App. 612, criticising Muely v. State,
31 Tex. Cr. App. 155, -where it -was held improper to instruct that,
"in determining the credibility of the defendant, -who testifies In his
o-wn behalf, his Interest in the issues involved is to be considered."
In this case the court intimated that an Instruction, generally, that
the jury might consider the interest of the -witnesses in determining
their credibility, -would not have been improper. The instruction
given -was condemned on the ground that it singled out defendant
for special comment.
187 Clark V. State (Tex. Cr. App.) 59 S. W. 887.
(514)
Ch. 25] PROBATIVE FORCE OF EVIDENCE. § 229
truth of defendant's testimony, they should take into consid-
eration the interest he must necessarily have in the result of
the trial."^** This rule is applicable whether the person
testifying is the defendant in a criminal suit;^*^ or any party
to a civil suit;^®" or any witness either in a civil suit or a
criminal prosecution other than the parties thereto,^*^ as, for
instance, the wife of the defendant in a criminal prosecu-
tion ;^^^ or of any other person related to him;^^* or of a
prosecuting witness in a criminal case.-'** Keeping in view
these principles, it has been held proper to charge "that, in
considering the weight of the evidence given by both the de-
188 People V. Calvin, 60 Mieh. 114; People v. Herrick, 59 Mich.
563; State v. Cook, 84 Mo. 40; State v. Young, 105 Mo. 634; State
V. Renfrov/, 111 Mo. 589; State v. Morrison, 104 Mo. 642; State
V. Brown, 104 Mo. 374; State v. Lingle, 128 Mo. 537; State v.
Young, 99 Mo. 666; State v. Turner, 110 "Mb. 196; Johnson v.
People, 140 111. 350; Salazar v Taylor, 18 Colo. 538; State v.
Hogard, 12 Minn. 293 (Gil. 191) ; St. Louis v. State, 8 Neb.
418; Johnson v. State, 34 Neb. 257; Murphy v. State, 15 Neb. 389;
People V. O'Neal, 67 Cal. 378; People v. Knapp, 71 Cal. 1; Rogers v.
King, 12 Ga. 229; State v. Fiske, 63 Conn. 392; State v. Sling-
erland, 19 Nev. 135; State v. Streeter, 20 Nev. 403; State v.
Hymer, 15 Nev. 51; State v. Viers, 82 Iowa, 397; Hatfield v. Chicago,
R. I. & P. Ry. Co., 61 Iowa, 440; West Chicago St. R. Co. v. Bstep,
162 111. 130. Contra, State v. Fairlamb, 121 Mo. 139; Wabash R. Co.
v. Biddle (Ind. App.) 59 N. B. 284.
189 State V. Mounce, 106 Mo. 226; People v. Knapp, 71 Cal. 1; Peo-
ple V. Cronin, 34 Cal. 192; State v. Fisk, 63 Conn. 392; State v. Ster-
rett, 71 Iowa, 386; State v. Ryan (Iowa) 85 ^. W. 812; State v. Mil-
ler, 162 Mo. 253.
100 West Chicago St. R. Co. v. Estep, 162 111. 130.
101 Salazar v. Taylor, 18 Colo. 538; State v. Hogard, 12 Minn. 293
(Gil. 191); State v. Lingle, 128 Mo. 528; People v. Herrick, 59 Mich.
563.
182 State V. Napper, 141 Mo. 401; State v. Strattman, 100 Mo. 540;
State V. Lingle, 128 Mo. 537; State v. Young, 99 Mo. 666.
193 State V. Hogard, 12 Minn. 293 (Gil. 191); State v. Fisher, 162
Mo. 169.
194 State V. Hogard, 12 Minn. 293 (Gil. 191).
(515)
§ 229 INSTRUCTIONS TO JURIES. [Ch. 23
fendant and his wife, they [the jury] will take into consid-
eration the fact that he is the defendant testifying in his
own behalf, and that she is his wife, and you may consider
their interest in the case, and the marital relation, in pass-
ing upon the credibility of their testimony."^^® Or that
"it is the duty [of the jury] to reconcile and harmonize the
evidence, if possible;" to "take into consideration the ap-
pearance of the witness on the stand, his interest in the re-
sult of the suit, or the want of it."^^® Or "that the jury
should consider and decide whether siich relationship (of
any of the witnesses to the complaining witness or defend-
ant) acted upon the witnesses, * * * to make false
statements in their evidence, or whether such relationship
influenced said witnesses and swerved them from the
truth."'*^ 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 statements,
taken in connection with the evidence in the cause, vou
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 tempta-
tions which would ordinarily influence a person in his sit-
uation."^®^ Or that the jury should "consider his [defend-
ant's] relation and situation under which he gives his testi-
mony, 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. * * *
185 state V. Napper, 141 Mo. 401. See, also. State v. Strattman,
100 Mo. 540, where an instruction almost identical in language was
approved.
196 Little V. McGulre, 43 Iowa, 447.
19T state V. Hogard, 12 Minn. 295 (Gil. 192).
198 State V. Hymer, 15 Nev.' 51.
(516)
Ch. 25] PROBATIVE FORCE OF EVIDENCE. § 229
If convincing and carrying with it a belief in its truth, act
upon it ; if not, you have a right to reject it."^®' Or that,
"aboye all, you are to take into consideration the fact that
he [defendant] is the accused in the case ; and, taking those
facts into consideration, you are to give to his statements in
court, or any statements made by him- out of court, such
effect and such force as you think they justly should have."^""
Or "that, in determining the weight of the testimony [con-
cerning material matters in controversy], * * * the
jury have the right, and it is their duty as jurors, to take into
consideration the interest which any witness may have in
the subject-matter involved."^"^ 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."^"^ Or "that, in weighing his [the defend-
ant's] testimony, they [the jury] should consider his posi-
tion, the manner in which he might be affected by the ver-
dict, and the very grave interest he must feel in it, and
whether this position and interest might not affect his credi-
bility and color his testimony, but that they should weigh
the testimony fairly, and give it such credit as they thought
it ought to receive."^"^ Or that the jury should consider
the relations which the prosecuting witness and the defend-
ant bore to the case, in determining what weight to give their
testimony.^"* Or that the jury should "look at all the facts
and circumstances of the case, the character of the witnesses,
* * * their relationship to the parties, * * * and
189 People V. Cronin, 34 Cal. 192. See, also, People v. Wheeler, 65
Cal. 77; State v, Streeter, 20 Nev. 403; People v. Morrow, 60 Cal. 142,
in which instructions substantially the same were upheld.
200 state v. Fiske, 63 Conn. 392.
201 Salazar v. Taylor, 18 Colo. 538.
202 state V. Brown, 104 Mo. 374.
203 People V. Knapp, 71 Cal. 1.
204 People V. Herrick, 59 Mich. 563.
(517)
I 230 INSTRUCTIONS TO JURIES. [Ch. . 5
thus determine upon which side the credibility preponderates,
and render a verdict accordingly."^"'
§ 230. Same — Kule in Kentucky, Mississippi, Texas, and Indi-
ana.
As already shown, it is settled in Kentucky, Mississippi,
and Texas that the court cannot instruct that the jury "may"
consider the interest of a witness in determining his credi-
bility, and of course it would be improper to instruct that
the jury "should" consider such interest.-"^ The decisions
in Indiana on this question are very conflicting, and it is
impossible to decide whether an instruction of this nature
would be sustained in this state. In a number of Indiana
decisions it has been held that an instruction t"hat 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, because it indicates, as a matter
of law, that the testimony of such witnesses was entitled to
less weight than that of others.^"' On the other hand, the
following instruction has been approved, and this ruling is
in direct variance with that of the decisions set forth in the
preceding note: "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.^*^ And a similar in-
struction has been sustained in a very recent decision.^"* In
sustaining this instruction, the court considered that the use
205 Rogers v. King, 12 Ga. 229.
206 Eddy V. Lowry (Tex. Civ. App.) 24 S. W. 1076; Muely v. State,
31 Tex. Cr. App. 155. See. also, ante, § 228, setting forth the prac-
tice in Mississippi, Kentucky, and Texas.
207Unruh v. State, 105 Ind. 118; Bird v. State, 107 Ind. 154; Lynch
V. Bates, 139 Ind. 210; Woollen v. Whitacre, 91 Ind. 502; Dodd v.
Moore, 91 Ind. 522.
208 Anderson v. State, 104 Ind. 467.
209 Deal V. State, 140 Ind. 354.
(518)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. § 231
of the word "should" "does not tell them [the jury] how
much, if any, that interest ought to detract from their testi-
mony, 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 differ-
ent, thing. If the court may not tell the jury that it is a
legal obligation resting on them, under their oaths, to con-
sider all the evidence adduced before them, then it follows,
as a logical sequence, that they are not bound to give any con-
sideration whatever to the evidence introduced before them
under the permission of the court."*^"
IV. Admissions and Confessions in Criminal Cases.
i 231. General considerations governing instructions on this
kind of evidence.
Evidence of confessions, like any other evidence, ought to
be 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 surrounding the making
of a confession which may very much affect it, and these are
for the consideration pf the jury.^^-' 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 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
210 Deal V. State, 140 Ind. 368.
211 Williams v. State, 63 Ark. 527.
(519)
§ 231 INSTRUCTIONS TO JTJKIBS. [Ch. 25
of the court to so charge.^^^ -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 promise, or induced by improper influence.^-'* Where
two theories are presented by the evidence, one of which ren-
ders 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 be-
lieve 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. ^^* If two or more defendants are jointly in-
dicted and tried, the jury should be instructed that admissions
or confessions made by one defendant, not in the presence of
the other, should not be considered as evidence against the de-
fendant who did not make them.^^^ And in instructing on this
question, a general charge "that the jury should not consid-
er 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 cautioned not
to give it any weight in determining the guilt or innocence
212 Paris v. State, 35 Tex. Cr. App. 82. In this case it was furtner
held that a failure of defendant to take any exception made no
difference. See, also. State v. Moore, 160 Mo. 443.
213 Bailey v. State (Tex. Cr. App.) 59 S. W. 900.
214 Sparks v. State, 34 Tex. Cr. App. 86.
216 State V. Talbott, 73 Mo. 348; State v. Oxendine, 107 N. C. 783;
Wilkerson v. State (Tex. Gr. App.) 57 S. W. 956. See, also, Givens
V. State, 103 Tenn. 648.
(520)
Ch. 25] PROBATIVE FORCE OF EVIDENCE. § 231
of the party who is not bound by it.^^' Though there is evi-
dence of a conspiracy between defendant and dthers 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.*-''' An instruction that all
statements by a witness, who was also indicted as an accom-
plice, made to other witnesses, not in the presence of de-
fendant, 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 purpose, is not erroneous, in that
it assumes as a fact proven that the accomplice did make
statements to other witnesses, which tended to establish the
guilt or innocence of said accomplice.^^^ Where the con-
fession 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 confessions, it should ap-
pear that it was either necessary, or that it was the duty of the
court to instruct the jury on that subject.*^® In instructing
the jury it is erroneous to assume that the defendant has made
an admission or confession,**" or to charge that defendant has
made an admission, when such is not the case,**-' and it is also
erroneous to intimate an opinion as to whether an admission
was made seriously.*** So, instructions on the subject of con-
fessions or admissions which are not based on any evidence in
2i« State V. Oxendme, 107 N. C. 783.
2"Casner v. State (Tex. Cr. App.) 57 S. W. 821; Segrest v. State
(Tex. Cr. App.) 57 S. W. 845.
218 wilkerson v. State (Tex. Cr. App.) 57 S. W. 956.
2i» Bernhardt v. State, 82 Wis. 23.
220 Hogan V. State, 46 Miss. 274.
221 Andrews v. State, 21 Fla. 598.
222 People V. Brow, 90 Hun (N. Y.) 509.
(521)
§ 232 INSTRUCTIONS TO JURIES. [Ch. 25
the case should not be given ;^^* as, for instance, where, on
a criminal trial, there is other evidence against the prisoner
besides his confessions, it is proper to refuse an instruction
that confessions not corroborated will not warrant a convic-
tion.^^* Where the admissibility of a confession is the domi-
nant question before the jury, it is error to refuse a re-
quest to charge on the subject of confessions, though the re-
quest is faulty.^^^ 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 statement attributed to him.^^^
§ 232. What instructions may properly be given.
In instructing the jury upon the subject of admissions
and confessions, the following charge has been approved:
"When the admissions or confessions of a party are intro-
duced in evidence by the state, then the whole of the admis-
sions or confessions are to be taken together, and the state
is bound by them unless they are shown to be untrue by the
evidence. 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."^^^ So
it has been held proper to charge that, in considering what
223 Gentry v. State, 24 Tex. App. 80; Com. v. Tarr, 4 Allen (Mass.)
315; Com. v. McCann, 97 Mass. 580. Where there is no evidence of a
confession, but simply evidence of an admission of a fact which
might tend to criminate, it is error to charge the jury as to the law
in regard to confessions. Suddeth v. State, 112 Ga. 407.
224 Com. v. Tarr, 4 Allen (Mass.) 315; Bailey v. State (Tex. Cr.
App.) 59 S. W. 900.
225 state v. Moore, 160 Mo. 443.
228 state v. HoUingsworth, 156 Mo. 178.
227 pharr v. State, 7 Tex. App. 478.
(522)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. § 2i3
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
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."^^* The court may also instruct that
verbal statements of defendant may be considered with the
other facts in the case;^^^ and a charge that the jury could
believe the confession, or any part thereof, as true or false,
has been approved.^^" 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.^^^ On the other hand, it is im-
proper to charge that " 'the fact that the person who is
charged with the commission of a crime says nothing, but
remains silent, is a circumstance to which the jury may look
as a confession of guilt.' It is often a circumstance, the
significance of which may be misunderstood, and it ought,
therefore, always tc be questioned very carefully, if not dis-
trustingly, by a jury."^^^
§ 233. Same — Instructions to receive and weigh with caution.
In many jurisdictions it is held improper for the court to
■sas state V. Curtis, 70 Mo. 894, State v. Vansant 30 Mo. 67; State
V. Peat, 85 Mo. 190. See, also, Jackson v. People, iS 111. 269, -where
in instruction almost identical with the above was approved.
=28 State v. Tobie, lis. Mo. 547.
aa" State v. Gunler, 30 La. Ann. 537.
23i Koerner v. State, 98 Ind. 20.
2S2 Campbell v. State, 55 Ala. 80.
(523)
§ 233 INSTRUCTIONS TO JURIES. [Ch. 25
instruct the jury that evidence of alleged admissions and
confessions should be received with caution, or to otherwise
disparage such evidence, ^'^ and several reasons are assigned
why an instruction of this nature should not he given. Ac-
cording to the views of some courts, such an instruction in-
vades the province of a jury as to matters of which jurors are
the exclusive judges.^^* It is further urged as a reason that
the processes of reasoning by which a conclusion is reached,
if well made, are appropriate to be found in either text
books or opinions, but rarely, if ever, is it proper to deliver
such reason in the form of instructions; that the teachings
of experience 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
claiming 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.^^®
Accordingly, it has been held proper to refuse an instruction
that "the confessions of a defendant are to be received with
caution,"^^^ or that "it is not uncommon for different wit-
nesses of the same conversation to give precisely ' opposite
accounts of it."^*^ 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.^'*
And one decision holds that the trial judge "may so charge,
233 Garfield v. State, 74 Ind. 60; Collins v. State, 20 Tex. App. 400;
Thuston V. State, 18 Tex. App. 26; White v. Territory, 3 Wasli. T.
397; Com. v. Galligan, 113 Mass. 202; Koemer v. State, 98 Ind. 7.
234 Collins v. State, 20 Tex. App. 400; Garfield v. State, 74 Ind. 63.
236 Garfield v. State, 74 Ind. 63.
23a Collins v. State, 20 Tex. App. 420.
237 Garfield v. State, 74 Ind. 60.
238 State v. Shelledy, 8 Iowa, 477; State v. Hardee, 83 N. C. 6^9;
Hunter v. State, 43 Ga. 483; Haynes v. State (Miss.) 27 So. 601.
(524) .
Ch. 25] PROBATIVE FORCE OP EVIDENCE. § 234
or not, in the exercise of a wise discretion, to be guided by
the circumstances of each particular case."^^® 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.^*" It is error to refuse to instruct that,
if the jury "believe from the evidence that the prisoner made
any confessions or admissions of guilt, such confessions 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."^*^ An instruction that it is the duty of the jury
"to view with distrust evidence of the oral admissions of
defendant * * * is at variance with the Code provision
which declares that evidence of the oral admissions of a
party is to be viewed with caution."^*^ Where an instruc-
tion is given at defendant's request, cautioning the jury
against verbal admissions and statements, though such in-
struction 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 in-
structions.^**
§ 234. Same — ^Instructions giving undue weight to evidence.
Wo instruction on this subject should be given, the tend-
ency of which will be to make the jury attach undue weight
to this kind of evidence. Thus, it is improper to charge
239 state v.. Hardee, 83 N. C. 619.
240 Lucas V. State, 110 Ga. 756.
24iHaynes v. State (Miss.) 27 So. 601. In this case, the evidenoa
relied on as an admission was that, when asked why he killed de-
ceased, defendant replied that he did not know what he was doing.
242 People V. Sternberg, 111 Cal. 11.
243 People v. Rodley, 131 Cal. 240.
(525)
§ 235 INSTRUCTIONS TO JURIES. [Ch. 25
that a confession is of the moat weighty nature in law;^*^
or that "confessions 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 ;"^*^ or "that the con-
fessions of the accused of his guilt, when confirmed by cir-
cumstances, become the highest evidence of his guilt j"^*" or
"that the voluntary confessions of a defendant are evidence
against him, and are to be regarded as the strongest proof in
the law;"^*''^ or that the "admissions of the defendant against
himself are to be taken as true;"^** or that, if the jury be-
lieve that defendant confessed he was guilty, they may find
him guilty as charged.^*^
v. Admissions in Civil Cases.
§ 235. Instructions to receive and weigh with caution.
In charging as to admissions in civil cases, practically the
same considerations govern as in criminal cases, and the same
confiict is found in the decisions as to the propriety of in-
structions cautioning the jury to receive this kind of evidence
with caution. According to many decisions, such an in-
struction is upon the weight of the evidence, and is therefore
improper.^^" "The reasons which are to be urged in favor
2i* Ledbetter v. State, 21 Tex. App. 344.
2*5 Brown v. State, 32 Miss. 433.
240 Hogsett V. State, 40 Miss. 522.
247 Morrison v. State, 41 Tex. 520. See, also, Harris v. State, 1
Tex. App. 79.
248 Grant v. State, 2 Tex. App. 164.
249 Long V. State, 1 Tex. App. 466.
260 Davis y. Hardy, 76 Ind. 272; Finch v. Bergins, 89 Ind. 360;
Newman v. Hazelrigg, 96 Ind. 377; Lewis v. Christie, 99 Ind. 377; '
Shorb V. Kinzie, 100 Ind. 429; Morris v. State, 101 Ind. 560; Unruh
v. State, 105 Ind. 117; Castleman v. Sherry, 42 Tex. 59; Shinn v.
Tuclier, 37 Ark. 580; Kauffman v. Maier, 94 Cal. 282; Wastl v. Mon-
(526)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. § 235
of receiving such statements with caution are based upon
human experience, and vary in strength and conclusiveness
with the facts and circumstances of each case, and their suffi-
ciency in any particular case is an inference which the rea-
son of the jury makes from those facts and circumstances;
hut there is no rule of law which directs the jury to in-
variably 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 evidence
which has been laid before them is or is not entitled to re-
ceive weight or consideration from them."^^-^ "Statements
in the nature of or tending to prove admissions * * *
should be considered and given such weight by the jury as
they may think them entitled to, without any advice of the
court as to their foree."^^^ A number of illustrative cases
are cited below in the note, wherein instructions have been
condemned for disparaging this class of evidence.^^* There
are nevertheless quite a number of decisions holding that it
is not improper for the court to caution the jury against
placing too much reliance upon testimony as to admissions.
Thus, it has been held proper to charge "that the verbal ad-
missions of a party to a suit, when made understandingly
tana Union R. Co., 17 Mont. 213; Knowles v. Nixon, 17 Mont. 473;
Johnson v. Stone, 69 Miss. 826; Mauro v. Piatt, 62 111. 450; Zenor
V. Johnson, 107 Ind. 69; Morris v. State, 101 Ind. 560; Frizell v.
Cole, 29 111. 465; Tobin v. Young, 124 Ind. 507.
261 Kauffman v. Maier, 93 Cal. 269. See, also, Castleman v. Sherry,
42 Tex. 59.
262 Shinn v. Tucker, 37 Ark. 580.
263 Wastl v. Montana Union R. Co., 17 Mont. 213 ; Knowles v.
Nixon, 17 Mont. 473; Lewis v. Christie, 99 Ind. '377; Kauffman v.
Maier, 94 Gal. 269; Zenor v. Johnson, 107 Ind. 69; Newman v. Hazel-
rigg, 96 Ind. 73; Frizell v. Cole, 29 111. 465; Johnson v. Stone, 69
Miss. 826; Mauro v. Piatt, 62 111. 450.
(527):
§ 235 INSTRUCTIONS TO JURIES. [Ch. 25
and deliberately, often afford satisfactory evidence; yet,, as
a general rule, the statements of a witness as to verbal ad-
missions of a party should be received by the jury with great
caution, as that kind of evidence is subject to imperfection
and mistake ;"^^* or 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 testi-
mony, owing to the liability of the witness to misunderstand
, or forget what was really said or intended by the party ;"^^^
or that, "vsdth respect to verbal admissions, they ought to be
received with great caution ;"^^® or that "admissions are re-
garded as weak testimony ;"^°'^ or that admissions of a party
were "the 'weakest kind of evidence that could be pro-
duced ;"^^* or that "admissions should be scanned with care,
— the jury should look to them carefully 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
^Q_"259 Qq j^ ]^^g ]3een held proper, after suggesting that
evidence of verbal admissions should be received with great
caution, to charge that the reasons stated constitute a verj
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 mind.^^" The following charge on this
subject has also been approved: "Evidence consisting of the
mere repetition of oral statements, and being therefore sub-
ject to much imperfection and mistake, through misunder-
standing, excitement, or impulse of the party, and want of
2" Allen V. Kirk, 81 Iowa, 658.
255 Haven v. Markstrum, 67 Wis. 493.
»56 Tozer v. Hershey, 15 Minn. 257 (Gil. 197).
257 Nash V. Hoxie, 59 Wis. 384.
258 Dreher v. Town of Pitchburg, 22 Wis. 680.
269 Stewart v. De Loach, 86 Ga. 729.
200 Moore v. Dickinson, 39 S. C. 441.
(528)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. § 236
proper understanding of the words by the hearers, and their
imperfection of memory, should be cautiously received ; but
•when such admissions are deliberately made, or often re-
peated, and are correctly given, they are often the most sat-
isfactory evidence; that the jury should consider all the
circumstances under whieli such admissions were made and
introduced in evidence, and give them such weight as they
were justly entitled to receive."^"^ 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 conversation in which his purpose
was to state the particular facts of his connection with the
crime.^^^ And an instruction that the "confessions or dec-
larations of a party, in evidence before them, is the weak-
est and most unsatisfactory kind of evidence, on account of
the facility with which it may be fabricated, and the diffi-
culty of disproving it when false," has been held erroneous,
for the reason that it confounds the evidence of the admis-
sions with the admissions themselves, and fails to observe
the distinction between them.^®^
§ 236. Instructions giving undue weight to this class of evi-
dence.
In charging as to evidence of admissions, it. is improper
to make any statement which will cause the jury to attach
undue importance to such evidence. Thus, it is erroneous
to instruct "that the admissions of a party to a civil suit are
strong evidence against him;"^^* or that testimony against
2«i Martin v. Town of Algona, 40 Iowa, 392.
262 state V. Jackson, 103 Iowa, 702.
sBsHiggs V. Wilson, 3 Mete. (Ky.) 338. To tlie same effect, see
Botts V. Williams, 17 B. Mon. (Ky.) 687.
264 westbrook v. Howell, 34 111. App. 571; Earp v. Edgington
(Tenn.) 64 S. W 40.
(529)
H -Ins.to Juri es.
§ 238 INSTRaCTlONS TO JURIES [Ch. 25
interest is to be taken as true ;^*' or "that the admissions and
declarations of a party are legal and sufficient evidence
against him, but not in his favor."^^^ In one decision, how-
ever, 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.^''^ 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 and pre-
cisely identified, they are usually received as satisfactory.
Admissions 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
reposes 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 circumstances
is to be judged by the jury alone, and therefore such instruc-
tion invades the province of the jury.^®^
§ 237. Instructions as to admissions of record.
Upon request of either party, the court must instruct the
jury what facts are admitted of record.^®'
VI. Testimony of Expert Witnesses.
§ 238. Rules governing this class of evidence.
While the competency of an expert witness is, of course,
a question to be determined by the court, it is the exclusive
province of the jury to determine what weight shall be given
256 Bphland v. Missouri Pao. Ry. Co., 57 Mo. App. 147.
268 Baker v. Kelly, 41 Miss. 696.
207 Buford V. McGetchie, 60 iowa, 298.
288 Phoenix Ins. Co. v. Gray, 113 Ga, 424.
289 Evans v. Foreman, 60 Mo. 449.
(530)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. § 239
to his testimony, and tlie court, in giving its instructions,
should not interfere with the right of the jury in this re-
gard. ^'^" As was said in one case: "Its value may be very
great, or it may be of little worth. It may be conclusive, or
it may be not even persuasive. Its weight will be determined
by the character, the capacity, the skill, the opportunities for
observation, and the state of mind of the experts themselves,
as seen and heard and estimated by the jury, and, it should
be added, by the nature of the case and all its developed
f acts."^''^ In determining the credibility and weight of such
evidence, the jury should consider it in connection with all
the other evidence in the case.^'^ They are not bound by such
evidence, but are at liberty to reject it altogether if they do
not consider it credible.^''*
§ 239. Instructing that expert testimony is to be considered the
same as that of other witnesses.
According to many decisions, an expert witness is to be
270 State V. Cole, 63 Iowa, 695; Bever y. Spangler, 93 Iowa, 576;
Pox V. Peninsular White Lead & Color Works, 84 Mich. 676; Rivard
V. Rivard, 109 Mich. 98; Taylor v. Cox, 153 111. 220; Keithsburg &
E. R. Co. V. Henry, 79 111. 290; Burney v. Torrey, 100 Ala. 157; Gun-
ter V. State, 83 Ala. 96; Mewes v. Crescent Pipe Line Co., 170 Pa.
369; Wells v. Leek, 151 Pa. 431; Templeton t. People, 3 Hun (N. Y.)
360; Roberts v. Johnson, 58 N. Y. 613; Anderson v. Barksdale, 77 Ga.
86; Stevens v. City of Minneapolis, 42 Minn. 136; White v. Pitchburg
R. Co., 136 Mass. 321; Atchison, T. & S. P. R. Co. v. Thul, 32 Kan.
255; Tatum v. Mohr, 21 Ark. 349; Johnson v. Thompson, 72 Ind.
167; Davis v. State, 35 Ind. 496; Humphries v. Johnson, 20 Ind. 190;
Kansas City, W. & N. W. R. Co. v. Ryan, 49 Kan. 1; Tillotson v. Ram-
say, 51 Vt. 309; Sioux City & P. R. Co. v. Pinlayson, 16 Neb. 578;
St. Louis Gaslight Co. v. American Fire Ins. Co., 33 Mo. App. 348.
271 Louisville, N. 0. & T. Ry. Co. v. Whitehead, 71 Miss. 451.
272Bpps V. State, 102 Ind. 539; Guetig v. State, 66 Ind. 107; Ala-
bama G. S. R. Co. y. Hill, 93 Ala. 514; Kilpatrick v. Haley, 6 Colo.
App. 407.
273 Aetna Life Ins. Co. v. Ward, 140 U. S. 76; Anthony v. Stlnson,
4 Kan. 211; Plynt v. Bodenhamer, 80 N. C. 208.
(531)
§ 240 INSTRUCTIONS TO JURIES. [Ch. 25
judged from the same standpoint as any other witness, ami
the jury 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 weight and credibility, and an in-
struction so directing the jury is not improper.^'^
§ 240. Instructions tending to discredit expert testimony.
There is some conflict of opinion as to whether it is proper
to instruct the jury that thq testimony of experts is to be
received with caution and circumspection. In some cases,
an instruction of this nature has been approved,^''® but the
weight of authority is to the effect that such an instruction
is erroneous, and should not be given. ^^"^ In one of thesa
cases, however, it was held that the judgment should not be
27* Carter v. Baker, 1 Sawy. 525, Fed. Cas. No. 2,472; Chandler v.
Barrett, 21 La. Ann. 58; Thornton's Ex'rs v. Thornton's Heirs, 39 Vt.
122; Bggers v. Eggers, 57 Ind. 461; Cuneo v. Bessoni, 63 Ind. 524;
Shellabarger v. Thayer, 15 Kan. 619; Ball v. Hardesty, 38 Kan. 540;
Halght V. Vallet, 89 Cal. 245; Williams v. State, 50 Ark. 511; Louis-
ville, N. O, & T. Ry. Co. v. Whitehead, 71 Miss. 451; Hampton v. Mas-
sey, 53 Mo. App. 501; Turnhull v. Richardson, 69 Mich. 400; Maynard
V. Vinton, 59 Mich. 139; Rivard v. Rivard, 109 Mich. 98; Epps v.
State, 102 Ind. 539; Langford v. Jones,- IS Or. 307; Thompson v. Ish,
99 Mo. 160; Brehm v. Great Western Ry. Co., 34 Barb. (N. Y.) 256.
275Haight V. Vallet, 89 Cal. 245; Buxly v. Buxton, 92 N. C. 479.
See, also, dictum in Templeton v. People, 3 Hun (N. Y.) 357. It
has been held proper to refuse an instruction that expert testimony
should be received with caution and scrutiny, where the court has in-
structed that the opinion of medical experts is not conclusive, "but
that the purpose of the introduction is to supplement the general
knowledge and experience of the jury ia relation to the matters be-
fore them, and thereby to aid them in the exercise of their own judg-
ment upon the facts, which must be exercised independently of the
opinion evidence." McLean v. Crow, 88 Cal. 644.
276 Weston V. Brown, 30 Neb. 009; Atchison, T. & S. P. R. Co. v.
Thul, 32 Kan. 255; People v. Seaman, 107 Mich. 348; Kankakee & S.
R. Co. V. Horan, 23 111. App. 259; Louisville, N. 0. & T. Ry. Co. v.
Whitehead, 71 Miss. 451.
533/
Ch. 25] PROBATIVE, FORCE OF EVIDENCE. § 240
reversed for tMs error, where "tlie record is otherwise free
from error, and the case not close on the point npon which
the expert evidence bore."^''^ So, also, there is a conilict of
opinion as to whether it is proper to instruct that testimony
of an expert is entitled to little weight. In one Case, an in-
struction of this nature has been approved,^''^ but in another
ease an instruction to this effect has been held properly re-
fused,^^* and an instruction that expert testimony is usually
of little value has been condemned.^®" An instructioa char-
acterizing expert testimony aa "made up largely of mere
theory and speculation, and which suggests mere possibilities,
* * * is properly refused, as inaccurate in point of fact,
and conveying a severe criticism of such evidence."^^* So,
an instruction, "It may be further remarked, too, in re-
gard to evidence which is made up largely of mere theory
and. speculation, and which suggests mere probabilities, that
it ought never to be allowed to overcome clear and well-es-
tablished facts, and, further, that the law recognizes expert
testimony as the lowest order of evidence," is erroneous, as
expert testimony may sometimes be of the highest charac-
ter.^^^ So, the following instructions, tending to discredit
expert testimony, have been held erroneous : That the court
"place no reliance whatever upon the expert testimony, ex-
cept what is due to the testimony of a sensible and honest
gentleman ;"^^^ that "it is your own opinion upon the mat-
ter, and the conclusion you draw from the facts proven, that
2" Kankakee & S. R. Co. v. Horan, 23 III. App. 259.-
278 Whitaker v. Parker, 42 Iowa, 585.
27s>Rivard v. Rivard, 109 Mich. 98.
280 Bggers V. Eggers, 57 Ind. 461; Gunter v. State; 83 Ala. 96.
281 Long V. Travellers' Ins. Co. (Iowa) 85 N. W. 24.
282 Brush V. Smith, 111 Iowa, 217, wherein veterinary surgeons
had testified that certain hogs had hog cholera.
2S3Templeton v. People, 3 Hun (N. Y.) 357.
(533)
g 241 INSTRUCTIONS TQ JURIES. [Ch. 2S
should determine your verdict, and not what any other per-
son says or thinks ;"^®* that "we question very much whether
you will realize much, if any, valuable aid from them [ex-
pert witnesses] in coming to a correct conclusion as regards
the responsibility for crime by this prisoner j''^^^ tj^^t "it is
the most remarkable circumstance that you can always ob-
tain an equal number [of experts], as a rule, to swear on both
sides of any question ;"^** or that the court did not think that-
expert testimony "was worth one fig, given as it was;"^*'' that
the "evidence [of experts] is intrinsically weak, and ought
to be received and weighed by the jury with great cau-
tion ;"^*^ that, in regard to testamentary capacity, the opin-
ions of testator's neighbors, if men and women of good com-
mon sense, were worth more than those of medical experts.
The relative weight of expert and nonexpert testimony must
be left to the jury.^®*
§ 241. Instructions directing jury to attach great weight to
expert testimony.
On this question, also, the authorities are very conflicting.
Thus, the following instructions have been approved : That
the opinion of medical experts is "entitled to great weight,"
when given in connection with another instruction that the
jury are not compelled to take such testimony as true j''^" that
284 Ball V. flardesty, 38 Kan. 545.
S85 Pannell v. Com., 86 Pa. 260.
286 People .V. Webster, 59 Hun (N. Y.) 398.
287 Reichenbach v. Ruddach, 127 Pa. 564.
288 Coleman v. Adair, 75 Miss. 660.
289 Taylor v. Cox, 153 111. 220.
280 St. Louis, I. M. & S. Ry. Co. v. Phillips (C. C. A.) 66 Fed. 35,
in wliich the court took the view that this was a mere expression
of opinion, and not an obligatory rule for the jury's guide. See,
also, Laflin v. Chicago, W. & N. R. Co. (C. C.) 33 Fed. 422, in* which
the following charge was held proper: "Great weight should al-
(534)
Ch. 2SJ PROBATIVE FORCE OF EVIDENCE. § 241
"the proof made by expert witnesses * * * is of much
greater value than of other persons who have no scientific
or experimental knowledge of the subject of insanity, and
who can only speak from observation of outward signs or ap-
pearances ;"^^^ "that the opinion of experts ought to have
weight with the jury, as they are familiar with these ques-
tions, but the jury are not concluded by their opinion ;"^^^
that "the law likewise attaches peculiar importance to the
opinion of medical men who have an opportunity of observa-
tion upon a question of mentalcapacity, as by study and ex-
perience * * * they become experts in the matter of
bodily and mental ailments."^®* So in one case it has been
held improper to refuse the following instruction: "Con-
sidering the extraordinary character of the injuries alleged
in this case, and the great difficulty attendant upon their
proper investigation, great weight should be given by the
jury to the opinion of scientifip witnesses, accustomed to in-
vestigate the causes and effect of injuries to the eye, and a
distinction should be made in favor of the opinion of those
accustomed to use the most perfect instruments and processes,
and who are acquainted with the most recent discoveries of
science, and most improved methods of treatment and inves-
tigation."29*
There is, however, a line of decisions which take the oppo-
site view from those cited. Thus, it has been held error to
ways be given to the opinions, honestly and candidly expressed, of
those familiar with the subject. They are not to be blindly re-
ceived, but are to be intelligently examined by the jury in the light
of their own general knowledge, giving them force and control only
to the extent that they are found to be reasonable."
2" State V. Reidell, 9 Houst. (Del.) 479.
292 State T. Owen, 72 N. C. 605.
29S Fiynt V. Bodenhamer, 80 N. C. 205.
294Tinney v. New Jersey Steam Boat Co., 12 ibb, Pr. (N. S.; N.
Y.) 3.
(535)
§ 241 INSTKUUTIONS TO JUKIKS. [Ch. 25
charge that "the opinion of physicians upon questions of
mental competency is entitled to greater weight than that of
ordinary laymen ;"^®® or that, "when the experience, honesty,
and impartiality of the experts are undoubted, their testi-
mony is entitled to great weight ;"^^* or '^that, in questions
involving science and skill, the opinions of scientific men in
professions or pursuits, to which such questions may pertain,
are authoritative, and in all doubtful cases, in which such
questions are involved, should control the jury;"^^'' or "that
the testimony of experts is supposed to be the best that can
be furnished ;"^** or that the testimony of experts as to pro-
fessional services "is the guide of the jury in finding the
amount justly due, and in this case you must take the testi-
mony of these witnesses, and be governed by it."^^® It is
proper to refuse to instruct: "On the matter of insanity
set up in this case, it is your duty, if you believe the testi-
mony upon which the opinions testified to by the medical ex-
perts are based is true, to weigh and test those opinions;
* * * and if you find that they are learned in their pro-
fessions, and have, in giving their opinions, testified candidly,
sincerely, honestly, and truthfully, you should give their tes-
timony due weight, and, if such testimony is all on one side,
you should return your verdict in accordance with it. If
the jury believe the testimony of physicians and others who
testified as to the mental condition of the defendant at the
time of the commission of the act complained of to be true,
and such testimony is all on one side, then the verdict should
be in accordance with such testimony. If you. believe that
the medical experts — the physicians who have testified in this
29S Maynard v. Vinton, 59 Mich. 139.
286 Wall V. State (Ga.) 37 S. E. 371.
2" Humphries v. Johnson, 20 Ind. 190.
298 Kansas City, W. & N. W. R. Co. v. Ryan, 49 Kan. 1.
299 Anthony v. Stinson, 4 Kan. 211.
(536)
Ch. 23] PROBATIVE FORCE OF EVIDENCE. § 243
case — have testified to the truth, and also believe that the tes-
timony of the witnesses on v^hich their opinions, as testified
to, are based, is true, you should acquit the defendant." The
jury are not bound to accept the conclusions of experts as
their own.^""
§ 242. Instructing jury to take into consideration witness'
means of knowledge.
It is proper to instruct the jury to take into consideration
the means and opportunity of acquiring knowledge possessed
by experts, as shown by the evidence, in estimating the weight
which they should give to other testimony. ^"^
§ 243. Instructions contrasting testimony of experts.
Though it is proper for the court to instruct the jury to
scrutinize the testimony of experts, and it is his duty to
instruct them to look to their character, manner, and capa-
bility; to the circumstances that brought them in as wit-
nesses; to the fact of compensation, and to what extent, if
any, under all the circumstances, their credibility might be
affected thereby, — it is error to say, in almost direct terms,
that, while the medical experts introduced by defendant were
admissible in law as witnesses, they were Jiot entitled to
credit, while on the other hand, when experts are appointed
by the state, or by referees agreed on by the parties, and
when such examinations made by such experts are not ex
farte, but conducted with notice to the opposite party, then the
testimony is entitled to great weight. ^"^ A general instruc-
tion given to aid the jury to know the value of, or weight
to be given to, testimony of certain experts, where their
800 Williams v. State, 50 Ark. 511.
301 Wells V. Leek, 151 Pa. 431; State v. Hinkle, 6 Iowa, 380; Aetna
Ufe Ids. Co. v. Ward, 140 U. S. 76.
3oa Persons v. State, 80 Tenn. 291.
(537)
^ 244 INSTRUCTIONS TO JURIES. [Cli. 2
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 ex-
pert of little experience, as compared with another witness
in the case.^"^ An instruction that a medical or scientific
book, introduced in evidence, "is entitled to as much au-
thority as a witness," is in violation of a statute forbidding
the judge to comment on the weight of evidence.^''* An in-
struction that the testimony of certain experts is entitled to
more weight than the testimony of other experts should be
refused.^"® 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.^"® Where the court disclaims any in-
tention of expressing 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.®"*^
§ 244. Directing jury to consider, in connection with other
evidence.
The court may properly instruct that "the opinions of med-
ical experts are to be considered * * * in connection
with all the other evidence in the case, but you [the jury]
are not bound to act upon them, to the exclusion of all other
evidence."^"^
»03 Powell V. Chittlck, 89 Iowa, 513.
no* Melvin v. Easly, 46 N. C. 386.
SOB Bever v. Spangler, 93 Iowa, 576.
806 Breck v. State, 2 Ohio Cir. Dec. 477.
807 Com. V. Earner, 199 Pa. 335.
808 Goodwin v. State, 96 Ind. 550; Guetig v. State, 66 Ind. 107;
Wagner v. State, 116 Ind. 181; Epps v. State, 102 Ind. 539.
(538)
Ch. 25] PROBATIVE FORCE OF BVIDBNCB. § 246
S 245. Instructions giving undue prominence to skill and ex-
perience of experts.
In instructing the jury as to expert testimony, it is im-
proper to charge that the jury should 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.^"* So, an instruction which 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.^^**
§ 246. Instructions with regard to hypothetical questions.
It is proper to instruct the jury to disregard the evidence
(opinions) of expert witnesses, based upon hypothetical ques-
tions, if the jury should find the hypothesis involved in the
questions to be not in accordance with the facts.^^^ So t
is always proper and commendable to instruct the jury not to
take for granted the truth of the statements contained in the
hypothetical questions asked the witnesses, and that they
should carefully scrutinize the evidence, and determine from
it what, if any, statements are not true.^^^ There is some
contrariety of opinion as to whether the jury may be directed
to disregard the opinion of an expert if any of the facts
stated in the hypothetical case are not fully proved. In one
case it was said: "It is true, as a general rule, that, where
the opinion of an expert is founded upon a hypothetical case,
his opinion cannot be considered of material value unless the
hypothetical case put to him is fully sustained by the evi-
dence. Yet exceptions to this rule may arise, where the
808 Blough V. Parry, 144 Ind. 463.
810 Cuneo v. Bessoni, 63 Ind. 524.
811 Loucks V. Chicago, M. & St. P. Ry. Co., 31 Minn. 526.
si2Guetig V. State, 66 Ind. 107; Goodwin v. State, 96 Ind. 550.
(539)
§ 246 INSTRUCTIONS TO JURIES. [Ch. 25
hypothetical case is susceptible of division, and a part of it
only is sustained hj the evidence."^-'* And in another case
(citing the one mentioned as authority) it was held not im-
proper to instruct "that the facts stated in a hypothetical case
need not necessarily he always fully proven to give value to
the testimony of an expert."*^* The following instruction
has been sustained in two decisions: "An opinion based
upon an hypothesis wholly incorrectly assiimed, or incorrect
in its material facts, and to such an extent as to impair the
value of the opinion, is of little or no weight."''^ ° On the
other hand, an instruction that, "if one fact supposed to be
true, included in the question, is untrue, not supported by
the evidence, then the opinion of the expert would be value-
less," has been approved,^^* and the following instruction
condemned: "If the facts stated as a basis for the hypo-
thetical question propounded to the medical experts in this
case Were not substantially correct, as shown by the evidence
introduced on the trial of the case, then the opinion given
by the experts, based upon such assumed state of facts, is
entitled to but little or no weight, as may be determined from
the evidence. That is to say, the hypothetical facts upon
which the question is based must be substantially correct to
entitle the conclusion drawn by the expert to have any con-
siderable weight." In condemning this instruction, the re-
viewing court said this instruction is erroneous as conveying
the impression "that the opinion of the expert might have
some weight, even though the jury should find that the facts
assumed as a basis for the opinion were incorrect. * * *
The sole value of the opinion must, of necessity, depend upon
the correctness of the statement of facts upon which it is
313 Eggers V. Bggers, 57 Ind. 461.
3" Bpps V. State, 102 Ind. 539.
si^Guetig V. State, 66 Ind. 94; Goodwin v. State, 96 Ind. 550.
316 People V. Foley, 64 Mich. 148.
(540)
Cb. 23) PROBATIVE D'ORCE Of BVIDENCK. g 247
based. If that is incorrect, then the opinion can have no
weight or value whatever."''^ Under this rule, it has been
held that if "there is evidence * * * tending to prove
all the material elements contained in the said question here-
inafter set forth, and asked the expert witness," it is not
error to refuse an instruction that, "if you find the evidence
* * * does not fully sustain the facts inquired in the
hypothetical question, you [the jury] will not give the an-
swers to such questions any effect."^'* It has been held
proper to instruct that the facts stated ii;i the hypothetical
question asked an expert must be substantially proven to en-
title his opinion to any weight.**' And the jury may be
instructed that, if the question asked the expert does not
contain sufficient facts upon which the witness can form an
intelligent opinion, his testimony is thereby weakened, if
not wholly destroyed.**"
i 247. Miscellaneous instructions.
If the opinions of experts are manifestly in conflict with
the established facts of the case, they cannot overcome such
facts, and the jury may be so instructed.^^' So, where a
witness testified to seeing a note signed, there was no error
in instructing that expert evidence as to the handwriting
should not overcome the testimony of a credible witness who
testified from personal knowledge.^^'"' 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
"'Hall V. Rankin, 8( Iowa, 261.
sisTurnbull v. Richardson, 69 Mich. 400.
310 Hovey v. Chase, 52 Me. 304.
820 Quinn v. Higgins, 63 Wis. 664.
S21 Treat v. Bates, 27 Mich. 390; Brown v. Eusch, 45 Pa. 61.
»22 Bruner v. Wade, 84 Iowa, 698.
(541)
Jj 248 INSTRUCTIONS TO JUB.IBS. [Ch. 25
different; and, as a principle of law, you have no right to
disregard the testimony of credible witnesses, — experts, — if
the witnesses are credible, and substitute for them your own
opinions or notions, without proof." Such an instruction in
effect tells the jury that the accused, no niatter what his
financial circumstances are, must employ experts on penalty
that the testimony of the experts for the state shall be con-
sidered binding upon the jury.^^^ 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 circumstances 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 por-
tion of the plank; that they were not restricted to the testi-
mony of witnesses; that they might use their own intelli-
gence, and their own experience with lumber, and the knowl-
edge which they brought with them into the jury room ; and
that it was their duty to use that information as much as
the information they got from the witnesses. "^^*
§ 248. Necessity of requesting instructions.
Where the court, on request, charges correctly as to expert
testimony, and counsel desire fuller instructions, they should
request them.^^^ So, a charge to the effect that the jury
will be governed by the weight of the evidence, without call-
ing special attention to the testimony of experts, is not er-
S23 People V. Vanderhoof, 71 Mich. 158.
82* Lafayette Bridge Co. v. Olsen (C. C. A.) 108 Fed. 335.
2=5 Bertody v. Ison. 69 Ga. 317.
(542)
Ch. 25] PROBATIVE FORCE OF EVIDENCE. § 24-»
roneous, especially where no request, written or verbal, is
made calling attention to that species of evidence."*
VII. Testimont o» Impeached Witnbsbes
§ 249. Propriety and necessity of instructions on this subject
Instructions on the law as to the impeachment of witnesses
are always proper, where evidence tending to impeach a wit-
ness has been introduced, ^^^ but should be refused unless
there is evidence on which to base them.*^* In the giving of
instructions as to the modes of impeachment, it is error to
state a certain mode of impeachment, when there is no evi-
dence on which to base it.^^^ The court may, of its own mo-
tion, instruct on the subject of impeachment, and it is ap-
prehended a refusal to give such an instruction when war-
ranted by the evidence, and when a proper request has been
made, would be erroneous. ^^^ Whether a failure to give
such instructions, in the absence of a request, would be er-
roneous, seems to be in some doubt. Of course, error could
hardly be assigned to a mere omission to give such an in-
struction in jurisdictions when there is no statutory require-
ment that the court shall substantially state the law govern-
ing the case, whether requested or not.'^' In one state it is
held not error for the court to fail to state to the jury the
S20 City of Atlanta v. Cbampe, 66 Ga. 660.
327 Ford V. State, 92 Ga. 459.
328 Cauley v. State, 92 Ala. 71. Compare Sanders v. Illinois Cent,
R. Co., 90 111. App. 582.
329 City Bank of Macon v. Kent, 57 Ga. 284.
330 Ohio & M. Ry. Co. v. Craucher, 132 Ind. 275; Harris v. State,
96 Ala. 24; Rose v. Otis, 18 Colo. 59. In this case it was held that
evidence that a witness had made a statement out of court different
from that given by him when testifying tends to impeach him, and
that, when requested, the court should instruct the jury to con-
sider this in estimating what his testimony would he worth.
331 See ante, §§ 127-133, "Necessity of Request as Foundation for
Error."
f543)
§ 249 INSTRUCTIONS TO JURIES. [Ch. 25
effect of impeaching evidence as to the credibility of a wit-
ness, where no instruction on that question is asked. It
was said that the impeachment of a witness does not con-
stitute a defense, but merely relates to the credibility to be
given to the testimony, and that the failure to instruct as to
the effect of an effort to impeach does not constitute a fail-
ure to state the issues of the case.^^^ In another case in this
state it was held that a correct charge in relation to im-
peachment of a witness, and the manner in which an im-
peached witness may be sustained, is not erroneous because
it fails to state particular rules on the subject of impeach-
ment, in the absence of a request for more particular in-
structions. ^^^ In another state, where the court is required
to instruct the jury to the extent of fully covering the sub-
stantial issues made by the evidence, whether requested or
not, it has been held not a ground for reversal that the court
did not, of its own motion, instruct the jury as to what con-
stituted impeachment, by contradictory statements made un-
der oath. The appellate court considered that this was a
minor point, which the trial court need not charge on unless
requested. ^^^ In other jurisdictions it has been held that,
where a witness is impeached, it is the duty of the court to
instruct the jury as to the application of the imjxiuching evi-
dence.'^" When? no evideLict tending to impeach any wit-
«32 State V Klrkpatrlr.k. RS Iowa, 5^4.
»3s Wheelwright v. Aiken, 92 Ga. 394.
834 Thomas v. State, 95 Ga. 484; IMerchants' & Planters' Nat.
Bank v. Trustees of the Masonic Hall, 62 Ga. 212. See, also, Lewis
V. State, 91 Ga. 168, where it was held that a correct charge having
been given on the manner in which the jury should deal with im-
peaching evidence, and the effect of such evidence, a failure to state
the rules laid down in the statutes as to the modes of impeachment
was not a ground for reversal, in the absence of requests for such
Instructions.
330 Wolfe V. State, 25 Tex. App. B98; State v. Davis, 78 N. C. 433;
Herstine v. Lehigh Valley R. Co.. 151 Fa, Z44; Henderson v, State,
(544)
-Gh. 25] PROBATIVE FORCE OF EVIDENCE. ^ 250
ness in any of the modes prescribed by law was introduced,
a failure to instruct as to the impeachment of witnesses is
not erroneous.^*® It is often proper to give an instruction
limiting the effect of impeaching testimony to the sole pur-
pose of impeachment.^^'^ Unless the jury can use impeach-
ing testimony for some purpose injurious to defendant, it is
not necessary to limit its effect by an instruction.^^*
§ S50. What instructions proper.
The jury may properly be instructed that they " 'should
consider' the impeaching evidence introduced, in estimating
the weight which ought to be given to the testimony of the
witness, and should also, for the same purpose, take into con-
sideration the fact, if they should so find it, that the moral
character of any witness had been successfully impeached."^'^
That, in connection with impeaching evidence, it is proper
"for you [the jury] to consider whether they [the impeached
1 Tex. App. 432. In the latter case, "the verdict depended on the
evidence of the prosecuting witness alone, and the defense, after
laying the proper predicate, proved that on several occasions she
had made statements materially conflicting with her testimony at the
toial. The court should, as part of the law applicable to the case,
have given in charge to the jury the legal principles controlling the
application and effect of the impeaching evidence." But in another
Texas case it was said that to give such a charge would not he nec-
essary or proper except under extraordinary or peculiar circumstan-
ces. Thurmond v. State, 27 Tex. App. 371. And, in another, that
"it is only when a witness has heen properly impeached" that such
a charge is necessary. In this case it was held that an attempted
impeachment by a single witness was not enough to render an in-
struction on Impeachment necessary. Rider v. State, 26 Tex. App.
334.
330 Freeman v. State, 112 Ga. 48.
337 Bondurant v. State, 125 Ala. 31. See, generally, as to instruc-
tions limiting the eifect of evidence, post, § 353.
338 Blanco v. State (Tex. Cr. App.) 57 S. W. 828.
330 Smith V. State, 142 Ind. 288.
(545)
35— ns. to Juries.
§ 250 INSTRUCTIONS TO JURIES. [Ch. 25
witnesses] Have been supported by evidence of good character
for truth and veracity, whether they have been corroborated
by other truthful witnesses, and whether their testimony is
consistent with other facts in the case, which have been
proven to your satisfaction."*** That the jury are to deter-
mine the credibility of a witness against whom impeaching
evidence has been introduced, under all the facts and cir-
cumstances as proved, and that, if he "gave a fair, candid,
and honest statement of the whole transaction in controversy,
they should not disregard his testimony."**^ That, "where
it is shown that the reputation for truth of a witness is bad,
his evidence is not necessarily destroyed, but it is to be con-
sidered under all the circumstances described in the evi-
dence, and given such weight as the jury believe it entitled
to, and to be disregarded if they believe it entitled to no
weight."^''^ Where the reputation of witnesses among their
neighbors, for truth, is impeached, and the testimony of wit-
nesses to the effect that they are acquainted with the char-
acter of the impeached witnesses, for truth in their neigh-
borhood, and that, from this acquaintance thus derived, they
would believe those witnesses under oath, although, as they
said, they had never heard that character spoken of, is then
received, a charge to the jury that they may weigh this tes-
timony, in their estimate of the credibility of the impeached
witnesses, is not erroneous.*** So it has been held not im-
proper to instruct that, "if a witness has come upon the
stand, and testified to a different state of facts here to what
he testified upon the preliminary trial, you have the right to
look to this evidence as evidence tending to impeach the wit-
S40 Haymond v. Saucer, 84 Ind. 3.
341 McCasland v. Kimberlin, 100 Ind. 121.
342 State v. Miller, 53 loVa, 210.
843 Taylor v. Smith, 16 Ga.. 7,
(546)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. § 2S0
ness who has made such conflicting statements/** or that,
"if you believe, from the evidence, that any witness, before
testifying in this case, has made any statements out of court
concerning any of the material matters, materially different
and at variance with what he or she has stated on the wit-
ness stand, then the jury are instructed by the court that
these facts tend to impeach either the recollection or the
truthfulness of the witness, and the jury should consider these
facts in estimating the weight which ought to be given to his
or her testimony, and, if the jury believe from the evidence
that the moral character of any witness or witnesses has been
successfully impeached on this trial, then that fact should
also be taken into consideration in estimating the weight
which ought to be given to the testimony of such witness or
witnesses;"**^ or "that certain other evidence introduced
tends to sustain the evidence, or that there is evidence tend-
ing in both directions, when such is the case ;"^*® that "they
[the jury] are at liberty to disregard the statements of such
witnesses (if any there be) as may have been successfully
impeached, either by direct contradiction, * * * un-
less the statements of such witnesses have been corroborated
by other evidence, which has not been impeached."^*^ An
m Harris v. State, 96 Ala. 27.
845 Smith V. State, 142 Ind. 288.
846 Harris v. State, 96 Ala. 27.
347 Miller v. People, 39 111. 463; White v. New York C. & St. L.
R. Co., 142 Ind. 648; Harper v. State, 101 Ind. 113; State v. Ormistop,
66 Iowa, 143. In this case, the following instruction was approved:
"If you believe from the evidence that any witness has been success-
fully impeached, either by reason of bad reputation for truth and
veracity, or by reason of statements made out of court conflicting
with statements made on the witness stand, or you so find that any
Witness has willfully sworn falsely in regard to any matter' or thing
material to the issues in the case, you will be justified in disregard-
ing the whole testimony of such witness, except in so far as you
(547)
§ 250 INSTRUCTIONS TO JURIES. [Qh. 25
instruction concerning the various modes of impeaching wit-
nesses, and telling the jury that it does not follow that, be-
cause a witness may be impeached, his testimony should be
entirely excluded from consideration ; that in such case it is
for the jury to decide for themselves what weight shall be
given to the testimony of such witnesses, taking into consid-
eration all corroborating circumstances and testimony, if any
exist, is not objectionable in that it assumes that witnesses
have been impeached, and that it withdraws from the jury
the right to give full credence to the testimony of such wit-
nesses.^*^ In relation to corroborating testimony, the fol-
lowing charge has been approved : "The corroboration 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, ia which
they see him confirmed by unimpeachable evidence, 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 false-
hood of which would go to prove or disprove the offense
charged against the prisoner."^*® Where evidence of con-
tradictory statements made out of court has been introduced,
it has been held not improper, in a jurisdiction where the
court may charge on the weight of the evidence, to instruct
that "the law regards this kind of impeaching testimony as
uncertain and somewhat unreliable."^^" "If the jury be-
lieve that the witnesses have made sworn contradictory state-
may find It corroborated by other credible evidence in tlie case,
or by facts and circumstances proved on tlie trial."
s48McDermott v. State, 89 Ind. 187. This instruction Is not ob-
jectionable, as assuming that any witness had been impeached.
349 Jackson v. State, 64 Ga. 345.
soo state V. Roberts, 63 Vt. 139.
(548)
Ch. 25"" PROBATIVE FORCE OF EVIDENCE. § 251
ments upon matters material to the issue in this case, then
the testimony of said witnesses may be wholly disregarded
and rejected by the jury, * * * and, before they should
receive and base a verdict upon it, they should carefully
scrutinize the testimony."^®^ An instruction that the force
and effect of certain testimony is to show that a certain wit-
ness has told things out of court different from in court, and
that it therefore becomes a matter for their consideration,
when weighing his testimony, how much credit they will give
to a witness who stated things in that way, and that the only
question is whether such testimony goes to the credibility of
the witness, and which leaves entirely to the jury the ques-
tion as to whether the witness made contradictory statements,
is not objectionable as a charge on the effect of the evi-
dence.^^^ An instruction "that the jury were not to arbi-
trarily reject the testimony of the convict witnesses simply
because they were convicts, but that their testimony should
be considered and weighed in accordance with the rules of
evidence," is not erroneous as "in effect telling that they are
to disregard the fact that certain witnesses have been con-
victed of a felony, in weighing their testimony."*^*
§ 251. What instructions erroneous.
It is error to instruct the jury that a witness is impeached,
and is not to be believed.^®* An instruction pregnant with
disparaging suggestions, not based upon the evidence, and
invading the province of the jury by undertaking to fix for
them the probative value of impeaching testimony, is er-
S51 McConkey v. Com., 101 Pa. 420.
352Parnell v. State (Ala.) 29 So. 860.
8S3 People V. Putman, 129 Cal. 258.
354 East Mt. L. Coal Co. v. Schuyler, 3 Leg. Gaz. (Pa.) 106; Harris
V. State, 96 Ala. 27.
(549)
§ 251 INSTRUCTIONS TO JURIES. [Ch. 25
roneoTis.^''* So it is erroneous to instruct that, "if any wit-
ness, having testified in the cause, had been impeached to
their satisfaction, they should disregard his testimony. "^^''
It is proper to refuse an instruction that, "against the credi-
bility of any witness, it is a strong circumstance, weighing
heavily, that he is ascertained to have sworn falsely in re-
gard to some material fact,"^^^ or that his testimony should
be considered with "great distrust."^®^ So, it is proper to
refuse to instruct that the jury cannot convict on the testi-
mony of a witness against whom impeaching testimony has
been offered,^®" especially where there has been some corrobo-
rating testimony.^®^ So, it is proper to refuse to instruct that
"proof of contradictory statements, declarations, or testimony
on material points by a witness may be sufRcient to raise a
reasonable doubt in the minds of the jury of the truth of the
witness' testimony, and, if the jury have such a reasonable
doubt of the truth of her testimony, then they should reject
her testimony, and should not consider it against the defend-
ant in making up their verdict ;"^*^ or that, where a witness
for the prosecution is impeached by proof of his contradic-
tory declarations on a material point, it is error to instruct
that the jury must believe a witness for the state, unless they
believe that the contradicting witness is entitled to more
weight and credit than said witness for the state ;*^^ or that
"the testimony of a witness for the prosecution, who is shown
850 Strong V. State (Neb.) 84 N. W. 410; Tarbell T. Forbes, 177
Mass. 238.
367 CHester v. State, 1 Tex. App. 703.
368 Paul V. State, 100 Ala. 136.
869 Tarbell v. Forbes, 177 Mass. 238.
360 Splcer V. State, 105 Ala. 123.
SOI Gilyard v. State, 98 Ala. 59.
302 Green v. State, 97 Ala. 59.
soscorley v. State, 28 Ala. 22.
(550)
Ch. 25] PROBATIVE FORCE OF EVIDENCE. § 251
to be unworthy of credit, is not sufficient to justify a convic-
tion without corroborating evidence, and such corroborating
evidence, to avail anything, must be of a fact tending to show
the guilt of the defendant;"^®* or that "the jury should
throw aside the testimony of such witness [who had been suc-
cessfully impeached], and not consider it, except in so far
as it may be sustained or corroborated by other testimony in
the case ;"^^® or that "the testimony of an impeached 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 wit-
ness may be corroborated that the witness is entitled to
credence and weight with the jury ;"^®^ or that, "when a wit-
ness was heard by a jury, who was neither impeached nor
»84 Moore v. State, 68 Ala. 360; Horn v. State, 98 Ala. 23; Ray v.
State, 50 Ala. 104. Contra, Cohen v. State, 50 Ala. 108. A curious
state of affairs is presented by these last two cases. They were
decided by the same tribunal, and are in direct conflict, yet the lait
in point of time was decided within a few days after the former,
without any reference or allusion thereto. Though "the character of
a witness is assailed, or he is otherwise impeached as being unworthy
of credit, it is entirely within the province of the Jury, as the ex-
clusive judges of the facts, to say what degree of weight or credi-
bility shall be given to his testimony. It does not lie in the mouth
of any court to instruct the jury, as matter of law, that they can-
not convict on such testimony unless it is corroborated; • • *
an instruction by the court defining the effect to be given their
statements is an infringement upon the jury's province." Osborn v.
State, 125 Ala. 106, citing Jordan v. State, 81 Ala. 20; Lowe v.
State, 88 Ala. 8; Moore v. State, 68 Ala. 360; Grimes v. State, 63
Ala. 166; Addison v. State, 48 Ala. 478.
360 Addison v. State, 48 Ala. 478.
3«« Green v. Cochran, 43 Iowa, 544. Contra, White t. Cook, 73
Ga. 169, where the following charge was approved: "Witnesses
may be impeached by the proof of contradictory statements. Wit-
nesses, when impeached, should not be believed unless corroborated.
It is for you to say whether any attempt at impeachment has been
successful."
(551)
g 251 INSTRUCTIONS TO JURIES. fOb. 25
contradicted, whose story was credible, and in whose manner
there was nothing to shake their confidence, they were bound
to believe him."^®^ An instruction: "If the jury believe
from the evidence in this case that the reputation of any wit-
ness in this case for truth and veracity in the neighborhood
where they reside is bad, then the jury have a right to dis-
regard his whole testimony, and treat it as untrue, —
* * * that is, * * * to treat it as untrue, except
where it is corrolx)rated by other credible evidence, or by
facts and circumstances proved on the . trial," — is erro-
neous.^^^ A charge that, "while it is the province of the
jury to pass upon the credibility of a witness, nevertheless
the law furnishes to juries certain rules to guide them in de
termining whether or not a witness spoke the truth, and the
law authorizes a jury to discard altogether the testimony of
a witness who has been impeached," is properly refused as
calculated to mislead the jury to believe that the credibility
of the testimony referred to is to be tested alone by the ex-
tent to which the general credibility of the witnesses has
been impeached. Whether a jury is authorized to discard
altogether the testimony of a witness who has been im-
peached depends not alone upon the fact of impeachment,
but upon that fact, considered in connection with other facts
S87 state V. Smallwood, 75 N. 0. 104; Noland v. McCracken, 18
N. C. 594. Contra, Rowland v. Plummer, 50 Ala. 182, where a
similar charge was approved. This decision is palpably erroneous.
The reviewing court considered that this was not a charge on the
"effect of the evidence," but it is hard to conceive on what they
based their opinion. According to this decision, the Jury would be
bound to believe the testimony of an unimpeached and uncontra-
dicted witness, though it was In contradiction of some well-known
natural or physical law. See, also. Smith v. State, 63 Ga. 168,
where a charge similar to that set out in the text was approved.
838 Higgins V. Wren, 79 Minn. 462.
(552)
Ch. 25] PROBATIVE FORCE OF EVIDENCE. § 251
in evidence.^®' Since a witness can be impeached only in
one way, — ^by a direct attack upon his testimony and char-
acter,'^" — ^it is erroneous to instruct that "a witness may be
just as effectually impeached * * * by. his manner of
testifying, his feelings towards the parties, his want of in-
telligence, or the want of means of knowing the facts of which
he testifies."''^^ So it is also erroneous to instruct that "if
you believe from the evidence that either one or more of the
witnesses has ill-will or unkind feelings to prisoner, that is
one of the methods of impeaching a witness, and that weakens
the testimony of the witness."^''^ It is error to instruct the
jury "that when a party introduces a witness on the stand,
he thereby indorses his credibility ;"'^' or that, "where a de-
fendant puts a witness on the stand, it is a declaration upon
his part that the witness is a truthful one."^''* It is suffi-
cient to say that a party cannot impeach his own witness.^^"
By introducing the witness, the party represents him to be
truthful, but does not warrant him to be so, under the penalty
that, if he swear falsely, it shall be evidence against the de-
fendant upon the issue on trial. A party cannot foresee that
his witness will swear falsely, or prevent him from doing
so.^''® After correctly instructing the jury as to how a wit-
ness may be impeached, it is not improper for the court to
say to the jury that "it would be a virtual disregard of a
juror's duty to arbitrarily disregard the evidence of a wit-
ness."^''^'^ An instruction that deprives a defendant of the
309 Osborn v. State, 125 Ala. 106.
370 Hansen v. Erickson, 28 111. 259.
371 Chicago West Division Ry. Co. y. Bert, 69 111. 388. ,
372 Skipper v. State, 59 Ga. 63.
373 Jarnigan v. Fleming, 43 Miss. 710.
374 State V. Brown, 76 N. C. 225.
375 Jarnigan v. Fleming, 43 Miss. 710.
378 State V. Brown, 76 N. C. 225.
377 state V. Sutfin, 22 W. Va. 771.
(553)
§ 253 INSTRUCTIONS TO JURIES. [Ch. 25
right of the jury to consider, for what it is worth, evidence
afEecting the credibility of the prosecuting witness, is er-
roneous.^''* An instruction that, although the jury "may be-
lieve from the evidence, beyond a reasonable doubt, that the
witness for the state may have a bad reputation 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 pre-
requisite, that they should believe the testimony.^''® 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 impeaching testi-
mony.^®"
VII. Applications of the Maxim, "Falsus in Uno, Falsus
IN Omnibus."
i 252. Propriety or necessity of instructing as to this maxim.
Before an instruction as to this maxim can be given, there
must be a sufiicient basis in the testimony to warrant the
giving of it.^*^ If there is no evidence on which such an
instruction can be based, it need not be given when re-
quested,**^ and, in fact, to give such an instruction, when not
warranted by the evidence, is erroneous.*** There must be
sTSDean v. State, 130 Ind. 237.
3T9 Snyder v. State, 78 Miss. 366.
380 Plummer v. State, 111 Ga. 839.
381 State V. Palmer, 88 Mo. 568; White v. Maxcy, 64 Mo. 552; In-
galls v. State, 48 Wis. 647 ; James v. Mickey, 26 S. C. 270.
382 state V. McDevitt, 69 Iowa, 549; Ingalls v. State, 48 Wis. 647.
383 Kay V. Noll, 20 Neb. 380. See, also. White v. Maxcy, 64 Mo'. 552.
(554)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. § 252
something in. the appearance of the Avitncss, or in his de-
meanor while testifying, or some inconsistency between his
testimony and that of other witnesses, or with physical facts,
which leads to the conclusion that the witness is untruthful,
in order to justify an instruction on this subject.^®* The
fact that the evidence was directly conilicting is sufBcient to
justify the giving of the instruction.^^^ The fact that a wit-
ness is not directly impeached does not preclude the court
from instructing upon the maxim, because a witness may be
discredited or impeached for the purposes of the maxim by
being contradicted by other witnesses, or by facts and cir-
cumstances proved.^^* But where a witness corrects a mis-
statement of fact before leaving the stand, the maxim under
consideration has no application, and the court should not
instruct upon it.'^^ According to a number of decisions, the
propriety of giving an instruction on this maxim in any par-
ticular case must be left largely to the judgment and .discre-
tion of the trial court ;^^^ and others hold that under no cir-
cumstances can the court be required to give such an instruc-
tion,^®® and that it makes no difference that there is evidence
to which such instruction would be applicable.*^" In other
884 Hansberger v. Sedalia Electric Ry., Light & Power Co., 82 Mo.
App. 566, wherein an Instruction that the jury "were the sole judges
of the weight and importance" of the testimony, and that, if they
believed, "from all they had seen and heard at the trial," that any
witness had -willfully sworn falsely, they were at liberty to en-
tirely disregard the testimony of such witness, was held erroneous,
as too broad.
386 state V. Hale, 156 Mo. ^02.
886 Sanders v. Illinois Cent. R. Co., 90 111. App. 582.
387 Kay V. Noll, 20 Neb. 388.
388 Paddock v. Sonies, 51 Mo. App. 820; State v. Hlckam, 95 Mo.
322; McCormick v. City of Monroe, 64 Mo. App. 197.
869 State V. Banks, 40 La. Ann. 736; James v. Mickey, 26 S. C. 270.
300 Paddock v. Somes, 51 Mo. App. 320; State v. Hickam, 95 Mo.
322.
(555)
§ 253 INSTRUCTIONS TO JURIES. [Ch. 25
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.^®^
2 253. Instructing that jury "may" or "should" disregard evi-
dence.
The credibility of a witness who knowingly testifies falsely
as to one or more material facts is wholly a matter for the
jury. They may believe or disbelieve his testimony as to
other facts, according as they deem it worthy or unworthy of
belief.^^^ There is no rule of law by virtue of which the
evidence may be withdrawn from the consideration of the
jury,^^^ or which prevents their giving credit to such a wit-
ness if, as a matter of fact, they do believe him.'^* In view
of these principles, if the facts and circumstances of the case
warrant it, the court may properly charge the jury that, if
a witness has willfully and knowingly sworn to an untruth
material to the issue, they "may" disregard the whole of his
testimony.*^® And the jury may further be instructed that,
ssiGillett V. Wimer, 23 Mo. 77; State v. Dwire, 25 Mo. 553; State
V. Perry, 41 W. Va. 641; Plummer v. State, 111 Ga. 839.
892 Schuek V. Hagar, 24 Minn. 339.
383 State V. Williams, 47 N. C. 257.
894 Fisher v. People, 20 Mich. 135.
890 paulette v. Brown, 40 Mo. 53 ; Britton v. City of St. Louis, 120
Mo. 437; State V. Thomas, 78 Mo. 341; State v. Beaucleigh, 92 Mo.
490; McFadin v. Catron, 120 Mo. 252; Gerdes v. Christopher &
Simpson Architectural Iron & Foundry Co. (Mo.) 27 S. W. 615;
Hansberger v. Sedalla Electric Ry., Light & Power Co., 82 Mo.
App. 566; White v. Lowenberg, 55' Mo. App. 69; Kelly v. United
State Exp. Co., 45 Mo. 428; Seligman v. Rogers, 113 Mo. 642; Mil-
lar V. Madison Car Co., 130 Mo. 517; State v. Duncan, 116 Mo. 288;
State V. Van Sant, 80 Mo. 71; Hart v. Hopson, 52 Mo. App. 177;
Fraser v. Haggerty, 86 Mich. 521; Barrelle v. Pennsylvania Ry. Co.,
21 N. Y. St. Rep. 109; East St. Louis Connecting Ry. Co. v. Allen, 54
111. App. 32; Atkins v. Gladwish, 27 Neb. 841; State v. Thompson,
21 W. Va. 746; People v. Strong, 30 Cal. 156; Minich v. People, 8
(556)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. § 253
while they may reject the whole of such testimony, they are
not bound to do so, but may give it such weight as they think
it entitled to.^^® "An instruction properly stating the rule
arising from the maxim, 'Falsus in uno, falsus in omniius,'
is proper where the defense is an alibi, and the testimony of
the witnesses directly conflicts. "'^^
The following forms of instruction on this head have been
approved, and are believed to be worthy models for imita-
tion : "If the jury believe that any witness in this case has
knowingly sworn falsely to any material matter in this case,
then you are instructed that this would justify you in disre-
garding the testimony of such witness entirely."^®* "If the
jury believe from the evidence that any witness who has tes-
tified in this case has knowingly and willfully testified falsely
to any material facts in this case, they may disregard the
whole testimony of such witness, or they may give such
weight to the evidence of such witness on other points as
they may think it entitled to. The jury are the exclusive
judges of the weight of the testimony."^*^
An instruction that, "if any witness has made statements
out of court different and contradictory from those made in
court in this case, then you may disregard the whole testimony
of such witness or witnesses, if you see proper to do so," not
even qualified by requiring the statements out of or in court
to be material, is erroneous, as inducing the jury not to be-
lieve anything a witness might say, if some one testified that
he anywhere in his testimony contradicted anything he had
Colo. 452; Mead v. McGraw, 19 Ohio St. 61; Dean v. Blackwell, 18
111. 336. Contra, Barnett v. Com., 84 Ky. 449.
396 state V. Meagher, 49 Mo. App. 589; State v. Thompson, 21 W.
Va.' 746.
397 state V. Johnson, 91 Mo. 439.
S98 Atkins v. Gladwish, 27 Neb 841.
309 State V. Thompson, 21 W. Va. 746.
(557)
§ 253 INSTRUCTIONS TO JURIES. [Ch. 25
said outside.*"" An instruction that, "if they believe from
the evidence that any witness has willfully sworn falsely to
any material matter in this case, or that the testimony of
such witness is unreasonable, or that the testimony of any
witness is colored or biased on account of relationship of the
witness to the defendant, or if, from any reason arising out
of the evidence, they may believe the testimony of any wit-
ness is untrue, then they may disregard the whole testimony
of such witness, if they see proper to do so," is rendered
erroneous by the use of the disjunctives, especially where the
instruction is manifestly aimed at a particular witness. It
is tantamount to telling the jury to disbelieve the witness.*"^
"A limitation upon the giving of it [such instruction] is
that it is error to single out a particular witness, and to
direct such a cautionary instruction, although couched in
proper terms, against his testimony."*"^ The giving of such
an instruction has been repeatedly condemned,*"^ and held
a good ground for reversal,*"* and the refusal of such an in-
struction has, of course, been held proper.*"^ A general in-
struction on the subject applicable to any and all the wit-
nesses should be given ;*"^ and the reason for this is that an
instruction applying this maxim to the testimony of a par-
ticular witness tends to convey to the minds of the jurors
the impression that the testimony of the particular witness
400 McDonald v. State (Miss.) 28 So. 750.
loijettries v. State (Miss.) 28 So. 918.
402 state V. Meagher, 49 Mo. App. 589; People v. Arlington, 131
Cal. 231. See ante, § 109, "Singling Out and Giving Undue Promi-
nence to Issues, Theories, and Evidence."
403 State V. Meagher, 49 Mo. App. 589; State v. Stout, 31 Mo. 406;
Argahright v. State, 49 Neb. 760; State v. Kellerman, 14 Kan. 135.
404 state V. Stout, 31 Mo. 406.
405Fraser v. Haggerty, 86 Mich. 521; State v. Kellerman, 14 Kan.
135.
406 Argabright v. State, 49 Neb. 760.
(558)
Ch. 25] PROBATIVE FORCE OF EVIDENCE. § 353
is disbelieved by the judge, and is to be disregarded, which
question is within their province, and not within his.*"'^ It
has been held, though, that an instruction that, "if you find
that either one of these parties — ^the complaining witness or
the defendant — ^has falsely and intentionally testified," etc.,
does not convey any impression as to which of the parties the
judge was disposed to believe, and is not improper.^"* An
instruction that, "if the jury believe from the evidence that
a particular witness has willfully sworn falsely on this trial
as to any matter or thing material to the issues in this ease,
then the jury are at liberty to disregard his entire testimony,
except in so far as it has been corroborated by other credible
evidence, or by facts and circumstances proved on the trial,"
is not erroneous, as misleading and singling out a particular
witness, though it would be good practice to add "that the
same rule would apply to any other witness who has will-
fully sworn falsely concerning any material matter in con-
troversy."^"^ This case is nevertheless clearly erroneous,
within the rule laid down by the preceding decisions, and is
also in violation of another rule governing instructions on
this maxim.*-'"
The next question to be considered in this connection is
the propriety of an insttuction that the jury "should" or
"must" disregard the testimony of a witness "who has know-
ingly and willfully testified" falsely in regard to a material
matter. According to some decisions, an instruction to this
effect is proper.*^ ^ In accordance with this view, it has been
*oi state V. Meagher, 49 Mo. App. 589.
prosecut-
ing witness is mistaken as to his identity is properly refused,
though a reasonable doubt of identity entitles to an acquit-
tal.^®* So it is proper to refuse an instruction that "the iden-
tity of the accused must be established to an absolute moral
certainty, 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."*^* An instruction that the jury shoiTld feel "an
abiding confidence and full faith" that the witnesses were
not mistaken in the fact of such identification by personal
recognition is erroneous and properly refused,''^® and an in-
struction containing the statement that "the law books are
full of cases of mistaken identity" is bad, as being argu-
mentative.*®^ Though the presumption of identity of per-
son from identity of name is disputed, yet, if defendant of-
fers no evidence to disprove such presumption, the jury may
be instructed that "identity of person is presumed from
identity of name," and the failure to instruct that this pre-
sumption is only prima facie is not prejudicial error.*®*
Where witnesses positively identify defendant as one of the
persons participating in the crime charged, the defendant is
not entitled to an instruction that such testimony is but a
mere matter of opinion. An instruction that "the jury are
to fully consider all the circumstances and conditions un-
der which these witnesses claimed to have seen the defend-
ant at the time of the crime, as well as the circumstances
ioi Booker v. State, 76 Ala. 22.
*oo People V. Nelson, 85 Gal. 421.
i»6 Hughes V. State, 75 Ala. 35.
■8 People V. Riley, 75 Cal. 98.
(580)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. § 263
of his subsequent identification, claimed to have been made
by them," and that they are "not bound by the fact that
these witnesses testified that the defendant was one of the
criminals, and it is left for 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 alibi," is as favorable as defendant is en-
titled to.*»8
XIII. Evidence of Chaeactee.
S 263. Rules governing this class of evidence.
In determining the guilt or innocence of the accused in
a criminal case, proof of his good character should always
be taken into consideration,^"** without reference to the ap-
parently conclusive or inconclusive character of the other evi-
dence.^"^ "The good character of the party accused, satis-
factorily established by competent witnesses, is an ingredient
which ought always to be submitted to the consideration of the
jury, together with the other facts and circumstances of the
case. The nature of the charge, and the evidence by which
it is supported, will often render such ingredient of little or
no avail ; but the more correct course seems to be not in any
case to withdraw it from consideration, but to leave the jury
to form their conclusion, upon the whole of the evidence,
499 State V. Powers, 72 Vt 168.
600 state V. Henry, 50 N. C. 65; Creed v. People, 81 111. 569; State
V. Tarrant, 24 S. C. 593; Stewart v. State, 22 Ohio St. 478; Kistler v.
State, 54 Ind. 400; McQueen v. State, 82 Ind. 74; Holland v. State,
131 Ind. 572; People v. Mead, 50 Mich. 228; State v. Lindley, 51 Iowa,
344; State v. Homing, 49 Iowa, 158; Hammond v. State, 74 Miss. 214;
People V. Bell, 49 Cal. 485; People v. De La Cour Soto, 63 Cal. 165;
State V. McMurphy, 52 Mo. 251; State v. McNamara, 100 Mo. 107;
State V. Porter, 32 Or. 135; Remsen v. People, 57 Barb. (N. Y.) 324;
Edgington v. United States, 164 U. S. 361.
501 Kistler v. State, 54 Ind. 400.
(581)
§ 264 INSTRUCTIONS TO JURIES. [Ch. 25
whether an individual whose character was previously un-
blemished has or has not committed the particular crime for
which he is called upon to answer.'"'"^ Evidence of the good
character 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.^"' Such evidence is not
a mere makeweight throvra. 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.^"* Evidence of the general
character of the accused, having reference and analogy to the
charge, is competent as original testimony,^"^ and its effect'
as primary evidence should not be denied by an instruc-
tion.^"® 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.*"^
§ 264. Instructions limiting effect of evidence to doubtful
cases improper.
Keeping in view these principles, it has been almost uni-
formly held erroneous for the court, by its instructions, to
limit the consideration of such evidence to cases where the
other evidence leaves a doubt in the minds of the jury as to
602Roscoe, Cr. Ev. (Ed. 1846) 97.
BosRemsen v. People, 43 N. Y. 6, reversing 57 Barb. (N. Y.) 324.
604 Heine v. Com., 91 Pa. 145; Remsen v. People, 43 N. Y. 6; People
V. Bell, 49 Cal. 485; Felix v. State, 18 Ala. 725; People v. Friedland,
2 App. Div. (N. Y.) 332; State v. Porter, 32 Or. 135.
505 Felix V. State, 18 Ala. 725.
»oo People V. Friedland, 73 N. Y. St. Rep. 516, 37 N. Y. Supp. 974.
507 Felix V. State, 18 Ala. 725.
(582)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. g 2C4
the defendant's guilt.^"® Thus it has been held improper
to instruct that evidence of good character is of no weight
except in a doubtful case.^°® Or "that, in a plain case, a
good character would not help a prisoner ; but, in a doubtful
case, he had a right to have it cast into the scales and weiglicd
in his behalf."^!" Or "that good character may have it;;
weight in a doubtful case, and it may have its weight in any
case to this extent: that * * * jf there is a question
of doubt, it may determine the matter in his favor."^^'- Or
"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."^^^ Or "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 de-
gree or grade of the crime."^-'* Or, that, "where the evi-
dence, 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 mat-
»08 jupltz V. People, 34 111. 516; State v. Henry, 50 N. C. 65; State
V. Sauer, 38 Minn. 438; State v. Holmes, 65 Minn. 230; Hejine v. Com.,
91 Pa. 145; Ryan v. People, 19 Abb. Pr. (N. Y.) 232; Com. v. Cleary,
135 Pa. 64; Stewart v. State, 22 Ohio St. 478; Harrington v. State,
19 Ohio St. 268; Felix v. State, 18 Ala. 725; State v. Northrup, 48
Iowa, 585; State v. Kinley, 43 Iowa, 296; Epps v. State, 19 Ga. 102;
Holland v. State, 131 Ind. 568; Hammond v. State, 74 Miss. 214;
Com. V. Carey, 2 Brewst. (Pa.) 406; Donaldson v. State, 10 Ohio Cir.
Ct. R. 613; Remsen v. People, 43 N. Y. 6; People v. Friedland, 73 N.
Y. St. Rep. 516; People v. Hancock, 7 Utah, 170; Canceml v. People,
16 N. Y. 501; Com. v. Leonard, 140 Mass. 473. Contra, Com. t. Web
Bfer, 5 Cush. (Mass.) 295.
609 Jupitz V. People, 34 111. 516.
010 State V. Henry, 50 N. C. 65.
Bii State V. Sauer, 38 Minn. 438.
612 Heine v. Com., 91 Pa. 145.
"3 Com. V. Cleary, 135 Pa. 64.
(583)
§ 264 INSTRUCTIONS TO JURIES. [Ch. 25
^gj._"5i4 Qj, tliat "evidence of previous good character maybe
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 reason-
able 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, encour-
aged, counseled, directed, and assisted in the same, evidence
of previous good character would not avail him anything, and
you should find him guilty." The effect of such instruc-
tion is to deprive the accused of the benefit of evidence of
good character. ^■'^ Or "that good character should only be
received as a circumstance in cases where a crime is sought
to be solely established by circumstantial evidence."^^* So,
in a very recent decision, the following instruction was con-
demned as prohibiting 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 difference what the character of the man is. It
"4 People V. Hancock, 7 Utah, 170,
"5 Holland v. State, 131 Ind. 568.
5ie State V. Kinley, 43 Iowa, 296. See, also. Stover v. People, 56
N. Y. 315, where it was held that good character Is to be considered
on the question of credibility of direct evidence of guilt, the same
as upon proof of circumstances tending to show it, or the inferences
to be drawn from such circumstances.
(584)
Ch. 25] PROBATIVE FORCE OF EVIDENCE. § 265
is not the subject of your investigation. But if the evidence
should leave your minds in such a state that you cannot say
^hat you are satisfied beyond a reasonable doubt, and if you
find that the defendant has borne hitherto an unblemished
character, — such a character as makes the act inconsistent
with 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."^-''' It has been held, however, that, al-
though an instruction "that the good character of the de-
fendant can only be taken into consideration when the jury
have a reasonable doubt" of his guilt, is improper, a con-
viction will not be reversed therefor when defendant was
clearly guilty according to his own testimony.^^*
§ 265. Instracting that evidence of good character may create
reasonable doubt.
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."®^* According to these decisions, the
court should not charge that evidence of good character may
of itself be sufficient to create a reasonable doubt. In other
6" State V. Holmes, 65 Minn. 230.
"8 State v. Slingerland, 19 Nev. 135.
518 Coleman v. State, 59 Miss. 490; Powers v. State, 74 Miss. 777;
Hammond v. State, 74 Miss. 214; Wesley v. State, 37 Miss. 327. See,
also, Briggs v. Com., 82 Va. 554, where it was held proper to refuse a
charge that, "if accused l»e proved of good character as a man of
peace, the law says that .such good character may be sufficient to
create a reasonable doubt of his guilt, although no such doubt would
have existed but for such good character;" and to instruct that the
character ot the accused, good or bad, when proved, may always be
received and weighed in favor of or against him, as the case may be.
(585)
§ 265 INSTRUCTIONS TO JURIES. [Ch. 25
jurisdictions it has been lield pi-oper to give such an in-
struction,'^^" and error to refuse it.^^' The defendant is en-
titled to have the jury distinctly instructed that good char-
acter may of itself create a doubt, where otherwise none
would exist.^^- In one case, the reviewing court said that
it was not sufficient 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 to the admission of the testimony as to charae-
^gj._623 j^- jj^g ^een held, however, that a refusal to give such
an instruction is not prejudicial, where the court instructs
that "evidence of the defendant's good character must be con-
sidered 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. "^^* There is some conflict of au-
thority as to whether it is proper to instruct that good char-
acter, if established, is sufficient to raise a doubt as to the
prisoner's guilt. In Pennsylvania, where an instruction on
the weight of the evidence is permissible, a charge to this
effect has been approved.®^® 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 suffi-
620 Stephens v. People, 4 Parker, Or. R. (N. Y.) 396; Lowenberg T.
People, 5 Parker, Cr. R. (N. Y.) 414.
521 People V. Bell, 49 Cal. 489; People v. Doggett, 62 Cal. 27.
022 People V. Elliott, 163 N. Y. 11.
523 People V. Bell, 49 Cal. 485. In People v. Elliott, 163 N. Y. 11,
where the court merely charged that good character should weigh
when a man is charged with crime, and left it to the jury to say what
weight should be given it, it was held error to refuse defendant's
request to charge distinctly that good character might create a rea-
sonable doubt.
524 People V. Bowman, 81 Cal. 566.
525 Com. V. Carey, 2 Brewst. (Pa.) 406.
(586)
Ch. 26] PROBATIVE FORCE OF EVIDENCE. § 266
ciency is a question for the decision of the jury."^^® So, a
requested instruction that the jury may consider defend-
ant's character for the purpose of accepting or rejecting his
statement, and weighing 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 argumenta-
tive, and as stating the law too favorably for the accused.^^'^
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 him guilty beyond a reasonable doubt, was also held
proper. The two clauses of this instruction are contradic-
tory."8
§ 266. Instructions as to effect of evidence of good character
in cases of great and atrocious criminality.
In the Webster Case, Chief Justice Shaw charged the jury
as follows: "Where it is a question of great and atrocious
criminality; the commission of the act is so unusual, so out
of the ordinary course of things, and beyond common ex-
perience; it is so manifest that the offense, if perpetrated,
must have been influenced by motives not frequently operat-
ing upon the human mind, — that evidence of character, and
of a man's habitual conduct under common circumstances,
must be considered far inferior to what it is in the instance
of accusations of a lower grade."*^* But the doctrine an-
nounced in this ease has received very little sanction from
others. While the strength of the presumption of innocence
arising from evidence of good character will vary according
IS26 Booker v. State, 76 Ala. 22; Barnett v. State, 83 Ala. 40.
627 Johnson v. Stat?, 95 Ga. 499.
628 State v. Bryant, 134 Mo. 246.
629 Com. V. Webster, 5 Cush. (Mass.) 324.
(587)
§ 267 INSTEUCTIONS TO JURIES. [Ch. 25
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.^^" Evidence of
good character is not only of value in prosecutions for minor
ofPenses, but is entitled to be considered when the crime
charged is atrocious.^^^ And, in accordance with this view,
it was held erroneous to charge that, "where it is a ques-
tion of great and atrocious criminality, * * * evidence
of character, and of a man's habitual conduct under common
circumstances, must be considered far inferior to what it is
in the instance of accusations of a lower grade. "®*^
S 267. Instructing that evidence of good character cannot
avail against clear proof of guilt.
Although evidence of good character is always to be con-
sidered in determining thfe question of guilt or innocence,
yet, 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.^^^ Accord-
ingly, the following- instructions on this head have been ap-
proved: "If you should believe the defendant guilty, you
must so find, notwithstanding his good character."^^* "If
the jury is satisfied of the prisoner's guilt from all the other
facts and circumstances detailed in evidence, his good cha>
030 Harrington v. State, 19 Ohio St. 264; Canceml v. People, 16
N. Y. 501; Remsen v. People, 43 N. Y. 9.
osiRemsen v. People, 43 N. Y. 9.
032 Canceml v. People, 16 N. Y. 501.
633 Edmonds v. State, 34 Ark. 720; State T. McMurphy, 52 Mo.
251; State v. Porter, 32 Or. 135; Jackson v. State, 76 Ga. 562; State
V. Vansant, 80 Mo. 70; McQueen v. State, 82 Ind. 74; Wesley v.
State, 37 Miss. 327; People v. Sweeney, 133 N. Y. 609; People v. Ham-
mill, 2 Parker, Or. R. (N. Y.) 223 ; State v. Douglas (Kan.) 24 Pac.
1118; People v. Mitchell, 129 Cal. 584. Compare State v. Llndley, 51
Iowa, 344.
034 People T. Samsels, 66 Cal. 99.
(588)
Ch. 25] PROBATIVE FORCE OP EVIDENCE.' § 267
acter cannot be looked to as a ground of acquittal.""^^ "Evi-
dence of good character is, in law, to be considered by the
jury, in all doubtful cases, of great weight. Yet, if the
proof of guilt is direct and clear, it is entitled to little con-
sideration."^^® "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."^^'' If the evidence is convincing beyond a rea-
sonable doubt, it is the duty of the jury to convict, notwith-
standing good reputation. ^^^ "The defendant has intro-
duced evidence before you tending to show his good char-
acter for peace and quietnoss. If, in the present case, the
good character 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, includ-
ing 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
evidence convinces you, beyond a reasonable doubt, of de-
fendant's guilt, you must so find, notwithstanding his good
character." Such an instruction is not open to the interpre-
tation that the jury must be convinced beyond a reasonable
doubt of defendant's guilt from the evidence taken m the
case, excluding from their minds the evidence offered in
reference to defendant's good character.^^^ "If, from the
whole testimony, they believe defendant is guilty, then his
previous good character neither justifies, mitigates, nor ex-
B3B State V. MeMurphy, 52 Mo. 251.
636 Creed v. People, 81 111. 569.
637 State V. Spooner, 41 La. Ann. 780.
638 People V. Mead, 50 Mich. 233.
638 People V. Mitchell, 129 Cal. 584.
(589)
§ 267 INSTRUCTIONS TO JURIES. [ Ch. 25
cuses the offense."^*" "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."^*^ Previous good char-
acter is of great importance, but evidence thereof is not to
overcome the conclusion which properly follows if the jury
are satisfied beyond a reasonable doubt that the defendant
is guilty.^*^ "If you shall conclude from all the evidence
that the defendant is guilty, you should not acquit him be-
cause you may believe that he has heretofore been a person
of good repute."^*^ "The good character of a person 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 es-
tablish 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 evidence adduced, the
jury believe the defendant to be guilty of any degree of
crime, they should so find, notwithstanding proof of good
character."^** "The defendant in this case has offered evi-
dence tending to show his character as a peaceable, law-abid-
ing citizen. The defendant has a right to show his previous
good character as a circumstance tending to show the im-
probability of his guilt, or that he 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 evi-
dence satisfied your minds that defendant, previous to the
5^0 state V. Jones, 78 Mo. 282.
^4l United States v. Smith, 2 Bond, 323, Fed. Cas. No. 16,322,
542 Com. V. Eckerd, 174 Pa. 137.
543 State V. Vansant, 80 Mo. 70.
044 People V. Smith, 59 Cal. 601,
(590)
Ch. 25] PROBA.TIVE FORCE OF EVIDENCE. § 2b8
commission of the alleged crime, had sustained a good repu-
. tation 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 defend-
ant's guilt, although no such doubt would have existed but
for such good character."^*^ So it has been held not erro-
neous 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 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 reasonable doubt of his guilt. ^** But in
one very recent case it was held error to refuse an instruc-
tion that the jury might, in the exercise of a sound discre-
tion, give the defendant the benefit of previous good char-
acter, no matter how conclusive other testimony might ap-
pear to be, and to leave it to the jury to say what weight good
character should have in determining defendant's guilt or
§ 268. Other instructions as to character.
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;*^* but an instruction that good char-
acter raises a strong presumption of innocence is erroneous,
545 state V. Porter, 32 Or. 135.
546 state V. Leppere, 66 Wis. 355.
54T People V. Elliott, 163 N. Y. 11, reversing 43 App. Div. (N. Y.)
621.
548 Peaple v. Harrison, 9'3 Mich. 597.
■ (591)
§ 268 INSTRUCTIONS TO JURIES. [Ch. 25
and is properly refused.^*" 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. ^^^ Instructions should not he given which tend
to impress the jury with the belief that evidence of good
character is of no value ;^^^ as, for instance, "that the re-
spondeJit 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.' "^°' But an instruc-
tion that the accused had introduced some evidence of good
character, and authorizing the jury to consider it, is not
erroneous because of the use of the word "some.'"^"^ Where
there is evidence tending to show the previous good reputa-
tion of the defendant as a jieaceable citizen, an instruction
that "no inference can be drawn by a jury, of the intention
which induced the commission of the offense, from the pre-
yious character of the prisoner. His intention can only be
determined by his acts. The law will imply a malicious in-
tention," — is erroneous.^''* So, where it has been sought to
impeach a witness both by disproving facts testified to by
him, and also by proof of contradictory statements, 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-establishing such dis-
proved facts. ®^° An instruction that, "if the jury, from
640 Wayne v. Winter, 6 McLean, 344, Fed. Gas. No. 17,304.
B50 Moran v. State, 11 Ohio Cir. Ct. R. 464.
B51 State V. Daley, 53 Vt. 442; People v. Pedro, 19 Misc. Rep. (N.
Y.) 300.
652 state V. Daley, 53 Vt. 442.
B53 Keys V. State, 112 Ga. 392.
654 People V. Casey, 53 Cal. 360.
555 McBwen v. Springfield, 64 Ga. 159.
(592)
Ch. 25] PROBATIVE FORCE OP EVIDENCE. § 268
all the evidence in this cause, have any doubt of the defend-
ant's guilt, and further believe from the evidence that the
defendant has for a long time and nov? 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.^^* "Where defendant asks an instruction that "the
good character of the defendant for honesty and integrity
is a fact in the case, to be considered 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.^^'' An
instruction that: "Proof of the good character of the per-
son charged with the offense is always allowed in this class
of cases, and the weight to be given to it is to be deter-
mined 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 hesitate
and think about the matter. The jury will always remem-
ber that a man has to commit his first crime; he 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 limiting the
effect of good character to doubtful cases.'^® Where de-
fendant introduces evidence of good character, which the
prosecution does not attempt to rebut, it has been held preju-
dicial error for the court to instruct that, while the law
permits him to make such proof, the people are prohibited
666 state V. McNamara, 100 Mo. 100.
667 People V. Velarde, 59 Cal. 457.
668 People V. Hancock, 7 Utah, 170.
(593)
38i — Ins. to Juries.
§ 269 INSTRUCTIONS TO JURIES. [Ch. 25
from showing his bad character.^''^ But the court may in-
struct "that it is competent for the prisoner to avail him-
self 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 prejudicial to the
accused should be drawn by the jury from his omission to
offer such testimony."^®" An instruction is proper which
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 illus-
trative of that principle, said that positive evidence, if be-
lieved by the jury, would overcome the presumption arising
from good character, if the court has already, in substance,
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 .circumstances
pointed to the guilt of the prisoner, and that good character
might be sufficient to raise such a doubt.^®^ An instruction
that "a witness may be discredited by showing that such wit-
ness had been living a life of moral turpitude, or of commit-
ting 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.^^^
§ 269. Necessity of instructions on character.
In case defendant has produced evidence to show good
character, he is entitled, on request, to an instruction stating
568 People V. Marks, 90 Mich. 555.
660 State v. Tozier, 49 Me. 404.
661 People V. Brooks, 61 Hun, 619, 15 N. Y. Supp. 362.
662 Wheeler v. State, 112 Ga. 43.
(594)
Ch. 25] PROBATIVE FORCE OF EVIDENCE. § 269
the effect of such evidence,''''^ but, in the absence of a re-
quest, it has been held that no instruction on this subject need
be given ;^^* and if defendant asks an improper instruction
on the subject of character, he cannot complain if none at
all 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 collateral mat-
ters ;^®^ and a refusal to give a proper instruction on good
character is not error, though an improper one has been asked
and refused.^®® 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 re-
quested.^*''' So, instructions on good character which have
already been given in substance may properly be refused.^®^
Where the court has charged that, "if the evidence satisfies
you in this case that this defendant is a man of good char-
acter 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 circumstanoes, and give it just
such weight as you think it is justly and properly entitled
to," and that "a reasonable doubt may arise out of the evi-
dence of good character, where a party charged with a crim-
inal offense offers evidence tending to show that he has here-
tofore borne a good character. That, in itself, will some-
times 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
=that this defendant has, not availed himself of the privilege
which the law gives him should not be permitted by you to
prejudice him in any way," — it ia not error to refuse to in-
struct that the jury are absolutely bound by their own
«Haynes v. State (Miss.) 27 So. 601; Farrell v. People, 133 111.
244; People v. Rose, 52 Hun (N. Y.) 33; State v. Landry, 85 Me. 95;
State V. Carr, 25 La. Ann. 408; State v. Goffi, 62 Kan. 104; State v.
Evans, 9 Kan. App. 889; Matthews v. People, 6 Colo. App. 456; People
V. Flynn, 73 Cal. 513; Foxwell v. State, 63 Ind. 539; Metz v. State,
46 Neb. 547. Contra, State v. Robinson, 117 Mo. 663; State v. Pearce,
56 Minn. 226.
11 Farrell v. People, 133 111. 244.
«2 People v. Rose, 52 Hun (N. Y.) 33.
«s People V. Fitzgerald, 20 App. Div. (N. Y.) 139.
(614)
Ch. 26] ON ABSENCE OF EVIDENCE. § 277
oaths to see that they do not allow their minds to be prej-
udiced in the slightest degree against the defendant by the
fact that he did not testify in his own behalf.** "That the
defendant has a right 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."*^ It has been held that
it is not 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.*^ And a
charge that "there is no presumption 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 prosecu-
tion: "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 privilege," — has been held not erroneous, as
conveying an insinuation that it would be detrimental to de-
fendant's interest to take the stand.*' So it is proper to
charge that a failure to testify is "not even a circumstance
against him [defendant], and no presumption of guilt can
be indulged in by the jury on account of such failure on
his part."** It has also been held that, where the court has
charged that the jury were not to consider defendant's fail-
ure to testify as a circumstance against him, a refusal to
further instruct that the jury were not to think of it was
proper.*® And where a charge of this nature has been given,
** People V. Watson, 54 Hun (N. Y.) 637.
4B May V. People, 8 Colo. 226.
4« State V. Krug, 12 Wash. 288.
*■! People V. Hayes, 140 N. Y. 496.
*8 Fulcher v. State, 28 Tex. App. 465.
*» State V. Cameron, 40 Vt. 555, in which it was said: "Such In-
structions would not be sensible. The jury could not think of the
charge without thinking o( the subjects of the charge, and one of
the subjects of the charge was respondent's omission to testify.'
(615)
§ 277 INSTRUCTIONS TO JURIES. [Ch. 26
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
obtaiiicd the impression that they could consider the fact that
the respondent had not testified as evidence against him.®"
On the other hand, where this charge has been given, it is
erroneous to instruct the jury that the failure of a defend-
ant to produce evidence which it was in his power to produce,
to meet the evidence adduced by the state, is a proper mat-
ter for them to consider.®^ 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 there-
fore xvould not go upon the stand." And the court says, fur-
ther, that such an inference is natural and irresistible, and
that no instruction will prevent honest jurymen from mak-
ing the inference.®^ An instruction that "you all know that
the intent is a simple mental operation, and we cannot, un-
less the defendant 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 mind and see what its workings are. The prosecu-
tion can never in any case, unless, the defendant himself sees
fit to speak, give any direct or positive evidence of the in-
tent," — 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."®*
Such a charge would be violated by the jurors bearing it In mind
to follow it. It was the duty of the jury to think on this subject
enough to see they did not allow it to prejudice the respondent."
50 State V. O'Grady, 65 Vt. 66.
01 Com. V. Harlow, 110 Mass. 411.
62 State V. Wines (N. J. Sup.) 46 Atl. 702.
03 People y. Morton, 72 Cal. 62.
(616)
CHAPTER XXVII.
CAUTIONARY INSTRUCTIONS ON THE DEFENSE OP ALIBI.
§ 278. Propriety or Necessity of Instructions on this Subject.
279. Instructions Tending to Discredit this Defense — ^View that
Such Instructions are Improper.
280. Same— The Contrary View.
281. Instructions Embodying the Doctrine of Reasonable Doubt
as Applicable to this Defense.
282. What Instructions Proper Where Burden of Proof is on De-
fendant to Establish Alibi.
283. What Instructions Proper Where Burden of Proof Is not on
Defendant to Establish Alibi.
284. Instructions as to the Effect of an Unsuccessful Attempt to
Prove Alibi.
285. Miscellaneous Instructions on this Subject.
§ 278. Propriety or necessity of instructions on this subject.
Where there is direct and positive evidence of an alibi,
the court may instruct the 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;^ but of course there should be no in-
struction on an alibi as a defense where there is no evidence
to warrant, it.^ Accordingly, an instruction on the subject
of alibi, in a prosecution for murder, may properly be re-
1 state V. Standley, 76 Iowa, 215.
2 State v. Jackson, 95 Mo. 623; State v. Seymour, 94 Iowa, 699;
Burger v. State, 83 Ala. 36; State v. Murray, 91 Mo. 95. There is no
■necessity for an instruction as to the defense of alibi, where there
v?as no suggestion from any of the witnesses that defendant was
absent at the time of the alleged assault. Johnson v. State (Tex.
Cr. App.) 58 S. W. 105. See, also, Benavldes v. State (Tex. Cr.
App.) 61 S. W. 125.
(617)
§ 278 INSTRUCTIONS TO JURIES. [Ch. 27
fused 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.* Where there is no testimony, in a prosecution for
murder, as to the whereabouts of defendant for about thirty
minutes before t^^e commission of the crime, and for about
fifteen minutes after its commission, and defendant was in
the vicinity of the crime, a failure to instruct on alibi is
not error, in the absence of any request for such an instruc-
tion.* Where one is jointly prosecuted with others, oil 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
that he was not actually present participating in the crime.
Of course it is not true that a co-conspirator must be ac-
quitted 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 he proper.' Where one is indicted
as a principal offender for a murderous assault, an instruc-
tion "that all persons are principals who are guilty of act-
ing 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 defend-
ant for their act, unless you are satisfied that defendant was
present, and, knowing their unlawful 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 hinj," sufficiently presents
» State V. Murray, 91 Mo. 95.
* State V. Seymour, 94 Iowa, 699.
B State V. Johnson, 40 Kan. 266.
(618)
Ch. 27] ON THE DEFENSE OF ALIBI. § 278
the issue of alibi.* If, however, there is substantial evi-
dence to support the defense of alibi, it is alvirays erroneous
to refuse an instruction as to this defense.'' Whether or not
it is necessary to instruct in relation to alibi, in the absence
of request for special instructions on that subject, and ex-
ceptions saved, does not seem to be well settled. There is
much conflict of authority on this question. 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.® Where
the court has. charged that the jury shall consider all the
facts in the case in determining the guilt or innocence of
the defendant, a failure to instruct that, as the defendant re-
lies upon an alibi, he should establish the defense by a pre-
ponderance of evidence, is not prejudicial to defendant.
Under a general instruction as to reasonable doubt on the
facts, the defendant obtains all the consideration to which
he is entitled of the defense of alibi. On the other hand, it
has been held in one state 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 ab-
sent 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 examination of this case discloses that no re-
BBenavides v. State (Tex. Cr. App.) 61 S. "W. 125.
7 State V. Keily, 16 Mo. App. 213; Jones v. State, 30 Tex. App. 345;
State V. Porter, 74 Iowa, 623; State v. Conway, 55 Kan. 323; Lee v.
State, 34 Tex. Cr. App. 519; Wiley v. State, 5 Baxt. (Tenn.) 662;
Quintana v. State, 29 Tex. App. 401; Long v. State, 11 Tex. App.
381; Long v. State (Fla.) 28 So. 775; Rountree v. State (Tex. Cr.
App.) 55 S. W. 827; Padron v. State (Tex. Cr. App.) 55 S. W. 827.
8 Com. V. Boschlno, 176 Pa. 103; Goldsby v. United States, 160 U.
S. 70; State v. Peterson, 38 Kan. 205. See, also, State v. Sutton, 70
Iowa, 268.
(619)
§ 279 INSTRUCTIONS TO JURIES. [Ch. 27
quest for such an instruction was made.® It has been held,
however, in this state, that, where the question of personal
identity and the fact of alibi in a criminal case are vir-
tually the same defense, the omission of the court to instruct
separately on alibi is not error.*" In one state it is said
that the court should instruct the jury on the subject of alibi,
where this is the sole defense;** 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;*^ and that, when the defend-
ant relies upon the evidence going to prove an alibi, the trial
court should usually charge upon that theory.** Neverthe-
less, 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 subject are requested and re-
fused.** 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.*®
§ 279. Instructions tending to discredit this defense — View
that such instructions are improper.
Although the defense of alibi is often attempted to be sus-
» Fletcher v. State, 85 Ga. 666. Compare Boothe v. State, 4 Tex.
App. 202.
i» Dale V. State, 88 Ga. 552.
iiDeggs V. State, 7 Tex. App. 359; Ninnon v. State, 17 Tex. App.
650.
isArismendis v. State (Tex. Cr. App.) 60 S. W. 47.
13 Quintana v. State, 29 Tex. App. 401; McGrew v. State, 10 Tex.
App. 539.
"Quintana v. State, 29 Tex. App. 401; Anderson v. State, 34 Tex.
Cr. App. 546; Clark v. State, 18 Tex. App. 468; Ayres v. State, 21
Tex. App. 399; McAfee v. State, 17 Tex. App. 131.
15 Conway v. State, 33 Tex. Cr. App. 327; Bennett v. State (Tex.
App.) 15 S. W. 405; Rountree v. State (Tex. Cr. App.) 55 S. W. 827.
(620)
Ch. 27] ON the; defense op alibi. g 279
tained by false and perjured testimony, and the jury may
and should scan the testimony carefully for the purpose of
determining the truth or falsity of such defense, yet the de-
fense intrinsically is not a suspicious one, but, on the con-
trary, is as honorable and satisfactory as any which the law
permits, and it is error for the court to charge that an alibi
is a defense which the law looks upon with suspicion.'* As
Judge Thompson points out, although the "defense is dis-
paraged by writers on evidence, and, in popular speech, it
is often called 'a rogue's defense,' * * * it is often the
only defense of an innocent man ; * * * and it is a de-
fense of so complete a nature that, to the precise extent to
which it is supported by evidence," the case of the prosecu-
tion is overthrown.^^ It has accordingly been held, in a
prosecution for larceny, that an instruction 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 presumed to be the thief, and, if he
fails to account for his possession of such property in a man-
ner consistent with his innocence, this presumption becomes
conclusive against him, and in such cases the law further
presumes that the thief resorted to and made use of all the
means necessary to gain access to and possession of such
stolen property," is erroneous if there is evidence of an alibi,
as such instruction in effect tells the jury that "it is true
there is evidence of an alibi, but you need pay no atten-
tion to that; and if you find that defendant had the stolen
i« State V. Jaynes, 78 N. C. 504; Line v. State, 51 IniJ. 174; Daw-
son V. State, 62 Miss. 241; People v. Lattimore, 86 Cal. 403; Sater v.
State, 56 Ind. 378; Albin v. State, 63 Ind. 598; Walker v. State, 37
Tex. 366; People v. Kelly, 35 Hun (N. Y.) 295; Spencer v. State, 50
Ala. 124; Williams v. State, 47 Ala. 659; State v. Lewis, 69 Mo. 92;
Simmons v. State, 61 Miss. 243; State v. Sidney, 74 Mo. 390; State v.
Chee Gong, 16 Or. 534.
17 2 Thompson, Trials, § 2433.
(621)
^§ 279 INSTRUCTIONS TO JURIES. [Ch. 27
property in his possession recently after the theft, then re-
turn a verdict of guilty."^* So it is error to tell the jury that
the defense of an alibi is to be viewed with peculiar suspicion
and distrust ;^® or to assume that the defense of alibi is "frivo-
lous and unfounded ;" as by refusing to give an instruction up-
on the only defense presented, viz., alibi y'" or to instruct that
the defense "is very often resorted to by guilty persons, as well
as innocent ones, and one in which perjury, mistake, and de-
ception are often committed ;"^* or that "the law regards evi-
dence to prove an alibi among the weakest and most unsat-
isfactory of all kinds of evidence;"^* or that an alibi is a
species of defense "which the law always looks upon with
suspicion ;"^^ or that "an alibi is a species of defense often
set up in criminal cases, and one which seems to figure
* * * in this" ease;^* or that "the defense of an alibi
is one that is easily fabricated, and is often attempted by
contrivance, stibornation, and perjury ;"^^ or that "evidence
given in support of it [an alibi] should be scrutinized other-
wise or differently from that given in support of any other
issue in the cause."^® It has been held that an instruction
vicious in this respect is not cured by another instruction
18 State V. Sidney, 74 Mo. 390.
i» Simmons v. State, 61 Miss. 243.
20 State V. Lewis, 69 Mo. 92.
21 State V. Chee Gong, 16 Or. 534.
22 Williams v. State, 47 Ala. 659.
23 Spencer v. State, 50 Ala. 124; People v. Kelly, 35 Hun (N. Y.)
295. In this last case the court said: "The defense Is as honor-
able, and, when clearly proved, as satisfactory, as any defense which
the law permits."
2« Walker v. State, 37 Tex. 366.
25Nelms V. State, 58 Miss. 362; Dawson v. State, 62 Miss. 241.
This precise charge was given in the Webster Case by Chief Justice
Shaw, and sustained. Com. v. Webster, 5 Cush. (Mass.) 295, 318.
26 People V. Lattimore, 86 Cal. 403; Dawson v. State, 62 Miss. 241;
Line v. State, 51 Ind. 174; Safer v. State, 56 Ind. 382.
(622)
Ch. 27] ON THE DEFENSE OP ALIBI. § 280
declaring that such defense, when "established by the evi-
dence, * * * is a good and complete legal defense."*^
But in one case it was held that such an instruction would
not be ground for reversal if the remaining portion of the
charge was such that, when given as a whole, an intelligent
jury could not have been misled by it.^*
§ 280. Same — The contrary view.
There are a number of decisions in which a different view
has been taken as to what instructions may be given on this
subject. Thus, the following instructions have been upheld :
"That the defense of alibi is one easily manufactured, and
jurors are generally and properly advised by the courts to
scan the proofs of an alibi with care and caution."^® That
"evidence to establish an alibi, like any other evidence, may
be open to special observation. Persons may perhaps fabri-
cate it with greater hopes of success or less fear of punish-
ment than most other kinds of evidence ; and honest witnesses
often mistake dates and periods of time, and identity of
people seen, and other things about which they testify."*"
"That the jury should consider the evidence of an alibi with
great caution; that the law so considered it, for the reason
that it was so easily manufactured; but that an alibi, when
once established to the satisfaction of the jury, was as good
as any other evidence."*^ That the jury "are to carefully
scrutinize any evidence in relation to an alibi. An alibi is
a defense which is easily proven, and hard to disprove.
27 Dawson v. State, 62 Miss. 241.
28 People V. Lattimore, 86 Cal. 403.
2» State V. Blunt, 59 Iowa, 468; Rowland v. State, 55 Ala. 210.
30 People V. Wong Ah Foo, 6^ Cal. 180. See, also. People v. Lee
Gam. 69 Cal. 552.
SI Provo V. State, 55 Ala. 222.
(623)
S 28L INSTRUCTIONS TO JURIES. [Ch. 27 ,
Therefore you will be careful and cautious in examining evi-
dence in regard to an alibi."*^
§ 231. Instructions embodying the doctrine of reasonable
doubt as applicable to this defense.
If evidence offered to establish an alibi, standing alone
(especially vrhen this is the sole defense raised), ^^ or in con-
nection with all the other evidence,** is sufficient to create
in the" minds of the jury a reasonable doubt as to the de-
fendant's guilt, he is entitled to an acquittal, and the jury
may be §o instructed,** and if there is evidence on which to
base such .an instruction, its refusal is error,*® and ground
82 State V. Wright, 141 Mp. 333.
83 Walker v. State, 42 Tex. 360; State v. Hardin, 46 Iowa, 623;,
State V. Kelly, 16 Mo. App. 213; State v. Emory, 12 Mo. App. 593;
Howard v. State, 50 Ind. 190; People v. Nelson, 85 Cal. 421; McLain
V. State, 18 Neb. 154; Wiley v. State, 5 Baxt. (Tenn.) 662; State v.
Lewis, 69 Mo. 92; State v. Taylor, 118 Mo. 167; Caldwell v. State,
28 Tex. App. 566; Walker v. State, 6 Tex. App. 576. Compare Mul-
lins V. People, 110 111. 46, where it was held that it is not quite cor-
rect to say that, when the jury iiave considered all the evidence
offered on the point made as to the alibi, if they have a reasonable
doubt as to whether "defendant was in some other place when the
offense was committed," they should acquit. "A better expression
of the law would be, when the jury have considered all the evidence,
as well that touching the question of the alibi, as the criminating evi-
dence introduced by the prosecution, then, if they have any reason-
able doubt of the guilt of the accused, they should acquit; otherwise
not."
34 Watson V. Com., 95 Pa. 418; Pollard v. State, 53 Miss. 421;
Sheehan v. People, 131 111. 22; Landis v. State, 70 Ga. 651; Dawson
V. State, 62 Miss. 244; Binns v. State, 46 Ind. 312; Chappel v. State,
7 Cold. (Tenn.) 92; Pate v. State, 94 Ala. 18.
35 Walker v. State, 6 Tex. App. 576; People v. Nelson, S5 Cal. 421;
Howard v. State, 50 Ind. 190 ; Caldwell v. State, 28 Tex. 566 ; Stevens
V. State (Tex. Cr. App.) 59 S. W. 545; Long v. State (Pla.) 28 So.
775.
36 Binns v. State, 46 Ind. 312; Wiley v. State, 5 Baxt. (Tenn.)
662; Long 'f. State (Fla.) 28 So. 775.
Ch. 3/J ON THE DEFENSE OF ALIBI. § 281
for reversal.^'' An instruction gave the defendant the full
benefit of the evidence as to alibi, which told the Jury that
defendant vras not bound to prove an alibi, but, if his. evi-
dence raised a reasonable doubt in their minds as to his com-
plicity in the crime, they must acquit him.^* So it has been
held that an instruction that "the commission of a crime im-
plies the presence of the defendant at the necessary time and
place, and evidence of the absence of the defendant is always
a defense, and, if a reasonable doubt is created by this evi-
dence, it is the duty of the jury to acquit the defendant,"
as amended by the court by inserting after the word "al-
ways" the words "admitted to establish," is a correct state-
ment of the law, and properly given.^^ And an- instruction
that: "If the defendant was, at the time of such killing,
at another and different place from that at which such kill-
ing was done, and theref or^ was not and could not have been
the person who killed the deceased, if he was killed. Now,
if the evidence raises in your minds a reasonable doubt as
to the presence of the defendant at the place where the de-
ceased was killed (if killed), at the time of such killing, you
will find him not guilty," — has been held a correct and suffi-
cient charge on the subject of alibi.*" An instruction that
"the defendant could not be guilty as charged unless he was
present at the commission of the offense, if any, and, if you
have a reasonable doubt of the defendant being present at
the killing of said decedent, if any, then you will acquit
him, * * * is a distinct, clear, and substantive charge
upon the law of alibi, disconnected from and independent of
any other part of the charge," and it cannot be objected that
s7 state V. Lewis, 69 Mo. 92.
88 State V. Miller, 156 Mo. 76, 56 S. W. 907.
89 People V. Nelson, 85 Cal. 421.
*o Walker v. State, 6 Tex. App. 576.
(625)
40. — Ins. to Juries.
§281 INSTRUCTIONS TO JURIES. [Ch. 27
the court did not charge in the usual form, — that defendant
"relies in this case upon the defense of alibi, which means
that he was not present at that particular time and place,
and therefore, if you find he was not present, find him not
guilty."*^ So, according to the rule stated, it has been held
erroneous to refuse an instruction "that, if the jury had a
reasonable doubt that the defendant was absent at the time
the homicide was committed, they should acquit him;"*^ or
"that, if the proof of alibi raised a reasonable doubt of the
defendant's guilt, he must be acquitted;"*^ or that it is not
necessary that "defendants shall prove an alibi beyond a
reasonable doubt, — that it is sufficient if the evidence, of-
fered to prove it raises a reasonable doubt in the mind of
the jury whether or not the accused was at the scene of the
crime and participated therein, and that in such cases it
is the duty of the jury to acquit."** Where the court in-
structs : "An alibi is a defense which is established by show-
ing that the person charged with the crime was at some place
other than that where the crime was committed, at such a
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 commission, 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," — the jury are in effect told that the state
41 Stevens v. State (Tex. Cr. App.) 59 S. W. 545. See, also. Bena-
vides V. State (Tex. Or. App.) 61 S. W. 125.
42 state V. Taylor, 118 Mo. 167.
43 Wiley V. State, 5 Baxt. (Tenn.) 662.
44 Long V. State (Fla.) 28 So. 775.
(626)
Ch. 27] ON THE DEFENSE OF ALIBI. g 281
must establish the guilt of the respondent beyond a reason-
able doubt to entitle it to a conviction, and that, if the evi-
dence in support of the alibi, in connection with the other
evidence, raised in their minds a reasonable doubt as to his
guilt, he was entitled to an acquittal; and it is not error to
refuse to instruct "that, if they were satisfied, by a fair bal-
ance of the testimony, that he was at another place at the
time of the burglary, the verdict should be not guilty."*® It
is erroneous to instruct that, if the doubt of defendant's guilt
or innocence only arises from the consideration of evidence
tending to prove an alibi, he is not entitled to the benefit of
that doubt;** or that the defense of alibi must be proved be-
yond a reasonable doubt ;*^ or "not beyond a reasonable
doubt, but by the preponderance of the testimony ;"** or that
the defendant was not to have the benefit of any doubt in re-
gard to the alleged alibi, unless the jury should find as a
fact that he was at another place than the place where the
crime was committed, when it occurred.*^ So it is not ac-
curate to say that the defense of alibi merely tends to cast a
reasonable doubt on the case made by the state; but it has
been held that this error is cured by an instruction that, "the
law being that, when the jury have considered all the evi-
dence, as well that touching the question of the alibi as the
criminating evidence introduced by the prosecution, then if
*B State V. Powers, 72 Vt. 168.
48 State v. Waterman, 1 Nev. 553.
« State V. Watson, 7 S. C. 65; Meyers v. Com., 83 Pa. 144; Landis
V. State, 70 Ga. 651; Gutirrez v. State (Tex. Cr. App.) 59 S. W. 274.
48 State V. Anderson, 59 S. C. 229, 37 S. E. 820, wherein such in-
struction was held erroneous, as requiring too great a degree of
proof; but the error was held cured by the further instruction that
it was the duty of the state to prove every material allegation be-
yond a reasonable doubt, and that the defendant was entitled to the
benefit of any reasonable doubt growing out of all the testimony.
Holley V. State, 105 Ala. 100.
78 State V. Henry, 48 Iowa, 403.
(634)
Ch. 27] ON THE DEFENSE OF ALIBI. § 283
such burden,'^ swi, Tinder this view, it is, of course, errone-
ous to instruct that the burden of "proof is on the dfifen^Lant
to make out the defense of an alibi ;*" or that an alibi must
be proved by evidence which outweighs that given for the
state ;^^ or that testimony adduced to prove an alibi should
not be considered unless it has established the alibi by a pre-
ponderance of evidence.*^ Such instructions seem plainly
inconsistent with the rule that the jury must give the defend-
ant the benefit of every reasonable doubt.®* It has been held
that an instruction that an alibi is a good defense, if proved
to the satisfaction of the jury, is proper, and does not con-
vey any intimation that the burden of proving it rests upon
the defendant.®* An instruction that defendant "may es-
tablish any fact essential to his defense by merely a pre-
ponderance of evidence" 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 rea-
sonable doubt of his guilt, unless he actually proved the fact
by a preponderance 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 de-
'9 State V. Miller, 156 Mo. 76; State v. Howell, 100 Mo. 628, over-
ruling State V. Jennings, 81 Mo. 185; State v. Josey, G4 N. C. 56
Gallaher v. State, 28 Tex. App. 247; Toler v. State, 16 Ohio St. 585
State V. Taylor, 118 Mo. 170; Johnson v. State, 21 Tex. App. 368
State V. Starnes, 94 N. C. 973; Walters v. State, 39 Ohio St. 215
French v. State, 12 Ind. 670; State v. Ghee Gong, 16 Or. 534; People
T. Pearsall, 50 Mich. 233.
so State V. Ghee Gong, 16 Or. 534.
81 French v. State, 12 Ind. 670.
82 Walters v. State, 39 Ohio St. 215; State v. Howell, 100 Mo. 628;
State V. Anderson, 59 S. G. 229.
83 Johnson T. State, 21 Tex. App. 380. But see the preceding sec-
tion.
»* State V. Starnes, 94 N. C. 973.
(635)
§ 283 INSTRUCTIONS TO JURIES. [Qh. 27
fendant for the purpose of proving an alibi, — ^tEat is to say,
tliat 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 considera-
tion of all the testimony, 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."^^ 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 ac-
quitted in case of a reasonable doubt as to his presence at
the time and place of the crime.** 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 instructed that they must give the
defendant the benefit of every reasonable doubt.*'^ So an in-
struction 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 committed, by the prose-
cuting 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 defendant," has been held not objec-
tionable; as conveying the idea that alibi must be made out
by a preponderance of the evidence.** An instruction "that
SB People V. Tarm Poi, 86 Cal. 225.
86 People V. Chun Heong, 86 Cal. 330.
8T State V. Taylor, 57 S. C. 483.
88 State V. Johnson, 91 Mo. 439.
(636)
Ch. 27] ON THE DEFENSE OF ALIBI. § 284
the defense [of alibi], if made out, was perfect, and was
conclusive of respondent's innocence, and that they must be
satisfied of respondent's guilt by proofs beyond reasonable
doubt, but that, as the proof of the alibi was in conflict with
the direct proof offered by the prosecution, they should weigh
the testimony thereof in connection with the other testimony
in the case, and consider it as met or explained by evidence
of the defense, and determine whether, in view of all the tes-
timony, the witnesses to the alibi were mistaken, or that they
were able to say from the testimony of the prosecution, as
explained by that of the defense, that there was no reasonable
doubt that respondent was guilty," is erroneous, as likely to
convey the impression that the alibi must be affirmatively
shown.®'
§ 284. Instructions as to the effect of an unsuccessful attempt
to prove alibi.
The' authorities are not agreed as to what instructions may
properly be given as to the effect of an unsuccessful attempt
to prove an alibi, and often in the same jurisdictions the de-
cisions are not always harmonious. It has been held erro-
neous to instruct that, "if the proof of an alibi," which, if
true, "would work a complete destruction of the charges
against the defendants, should turn out to be false and man-
ufactured, the legal presumption is that the evidence intro-
duced by the state, and upon which it bases a claim for the
conviction of the defendants, whether weak or strong, is
true;"'" or that an unsuccessful attempt to prove an alibi
implies "the truth and relevancy of the facts alleged" against
defendant;'^ or that a failure to prove an alibi "ought to
80 People V. Pearsall, 50 Mich. 233.
»o Sawyers v. State, 15 Lea (Tenn.) 695.
81 State V. Collins, 20 Iowa, 85.
(037)
§ 284 INSTRUCTIONS TO JURIES. [Ch. 27
raise a strong presumption against the hona fides of the de-
fense ;"^^ or "that an unsuccessful attempt to prove an alibi
is always a circumstance of great weight against the defend-
ant."®* It has also been held erroneous to charge that the
"failure to prove the defense of alibi satisfactorily is a cir-
cumstance unfavorable to the defendant."®* On the other
hand, an instruction "that an unsuccessful attempt to prove
an alibi in a criminal case is a circumstance to be weighed
against the defendant" has been approved in one decision,®*
and held not reversible error in another.®* It has been held
erroneous to instruct that a failure to prove an alibi may be
properly considered in connection with any other evidence
in the case tending to prove guilt.®'' Or that it is "essential
to the successful proof of an alibi that it should cover the
whole time of the transaction in question, and when it fails
to do so it is regarded as the most suspicious of evidence;
that the witnesses all testified to having retired by ten o'clock,
and it was for the jury to say whether the prisoner might
have left, or did leave, his bed, commit the deed, and return
before the alarm of fire was given. "®^ Or that an alibi, if
proved, "constitutes a complete defense; if not proved,
* * * the attempt to manufacture evidence is a circum-
stance which always bears against the prisoner. Wo innocent
person is driven to manufacture evidence."®® It has been
held not improper, however, to instruct in effect that, if the
defendant makes a corrupt attempt to manufacture a false
«2Com. V. Pislier, 15 PWla. (Pa.) 387.
»3 People V. Malaspina, 57 Cal. 628; State v. Josey, 64 N. C. 59;
Miller t. People, 39 111. 458; State v. Collins, 20 Iowa, 85; Albrit-
ton V. State, 94 Ala. 76.
94 Adams v. State, 28 Fla. .551; Prince v. State, 100 Ala. 144.
»6 Kilgore V. State, 74 Ala. 5.
»« Jackson v. State, 117 Ala. 155.
OT Parker v. State, 136 Ind. 284.
»8 state V. Jaynes, 78 N. C. 504.
09 Turner v. Com., 86 Pa. 54.
(638)
Ch. 27] ON THE DEFENSE OF ALIBI. g 285
alibi, it may be considered as a circumstance ^-ga^i^g^ him.""
On the other hand, it has been held erroneoVg ^q instruct that,
if the jury found defendant guilty ^Q^-^ilsity in alleging his
alibi such falsity shoul/'-jfe considered as additional evi-
dence of his guiJ.^**^ An instruction: "The defendant
pleads specii^^y ^^ alibi. He has attempted to prove that
he was r-' present at the place where the crime was com-
mitted' — is erroneous, as discrediting the defense of alibi,
ap'the injurious effect of this charge is not remedied by
m additional instruction that, if the jury believe the plea
of alibi, they are not authorized to convict.'"'^
§ 285. Miscellaneous instructions on this subject.
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,""* 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
witnesses who testify concerning it as to those who testify
to anything else."-"'* An instruction that "one defense in
this case is what is known in law as an 'alibi,' — ^that is, that
the defendants 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 another and different place," — is not erroneous on
100 Com. V. MoMahon, 145 Pa. 413; Pilger v. Com., 112 Pa. 220.
Compare Turner v. Com., 86 Pa. 54, wherein the instruction con-
demned implied that a mere failure to establish an alibi was suffi-
cient to show an attempt to manufacture evidence.
101 State V. Byers, 80 N. C. 426.
io2Kimbrough v. State, 101 Ga. 583.
103 People v. Burns, 59 Cal. 359.
104 People v. Hare, 57 Mich. 505.
(639)
§ 285 INSTRUCTIONS TO JURIES. ^q^ 27
the ground that >; classes alibi as a defense. Though it is
true that, in order toCgnvict the defendants, it devolves upon
the state to prove their presSIre»;i the time and place of the
commission of the offense, yet, in order lo^vercome the case
made out by the state against them, they assumu-be burden
of showing such a state of facts as will raise in the linds of
the jury a reasonable doubt as to their presence at thbi,^g
and place of the commission of the offense, and to this e.
, tent an alibi is a defense.-'"^ An instruction : "An alibi
is a defense which is established by showing that the person
charged with the crime was at some place other thaai that
where the crime w^as committed, at such time that he could
not have been at the place of the crime at the time of its com-
mission. 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 commission, 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.'"® An in-
struction "that if, after considering all the facts and circum-
stances 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.' "^ An
instruction that, "if the evidence of an alibi has introduced
in the minds of the jury a doubt as to whether or not the
defendant was at or about the place when the alleged rob-
105 state V. Hale, 156 Mo. 102, 56 S. W. 881.
106 state V. Powers, 72 Vt. 168.
lOTAneals v. People, 134 111. 401.
(640)
Ch. 27] ON THE DEFENSE OF ALIBi. § 285
bery is said to have been committed, you will acquit the de-,
fendant," is properly refused, since the doubt justifying the;
acquittal must be a reasonable one.^°* An instruction that/
if the jury entertain a reasonable belief that, at the time de-
ceased 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 fol-
lowed by a sufficient charge on the doctrine of reasonable
doubt, . the entire context will be a sufficient charge on tte
subject of alibi.^"® In a prosecution for theft of cattle, it is
error, in a charge in reference to alibi, to require the ab-
sence 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.^*" Errov '.annot be predi-
cated of a charge that "to make an alib' available as a de-
fense 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."^" "Where
the evidence tends to prove an alibi, the use of the words
'possible' and 'impossible,' as applied to the ability of the
defendant to have been at a certain place, other than where
che crime was committed, and at the place where the crime
was committed at the time of its commission, is errone-
ous."-'^^ 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 entitled to an acquittal. * * * It is proper to thus
108 Gibbs v. State, 1 Tex. App. 12.
"•sBoothe V. State, 4 Tex. App. 202.
*io Thompson v. State (Tex. Cr. App.) 57 S. W. 805.
^1 Simpson v. State, 78 Ga. 91.
112 Snell V. State, 50 Ind. 516.
(641)
1. — Ins. to Juries.
§ 285 INSfTIU0T?O»fS Te JURIES. [Ch. 27
submit the question of the alibi, instead of treating it as an
independent issue. "^^^ Where, at the preliminary examinar'
tion, the accused permits testimony of a false alibi, and alas
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.^**
"8 State V. Powers, 72 Vt. 168.
"« People T. Connor, 66 Hua {N, T.) 644.
(642i
CHAPTER XXVin.
CAUTIONARY INSTRUCTIONS ON REASONABLE DOUBT.
§ 286. Necessity of Instructions on this Subject.
287. Repetition of Instructions on Reasonable Doubt XTniieces>
sary.
288. Necessity of Defi&lng Reasonable Doubt.
289. Statutory Definitions.
290. Defining as a Doubt for Which Reasons Based on Evidence
can be Given.
291. Defining as a Doubt Which would Cause a Reasonable Man
to Pause and Hesitate in the Grayer Transactions of Life.
292. Defining as a Doubt One the Absence of Which Would Cause
a Reasonably Prudent Man to Act in His Own Most Im-
portant Affairs.
293. Absence of Reasonable Doubt as Equivalent to "Moral Cer-
tainty," or "Reasonable and Moral Certainty."
294. Absence of Reasonable Doubt as Equivalent to an "Abiding
Conviction to a Moral Certainty."
295. Negative Definitions.
296. Not a Doubt as to Law.
297. Not a Doubt Raised by Argument of Counsel.
298. Entire Satisfaction of Guilt as Equivalent to Absence of
Reasonable Doubt.
299. Probability of Innocence may Create Reasonable Doubt.
300. A Doubt Arising from the Evidence or Want of Evidence.
301. Doctrine Applicable Only to Evidence Considered as a Whole.
302. Same — Contrary View.
303. As to Number of Jurors Who must Entertain a Reasonable
Doubt in Order to Acquit.
304. Must not Disbelieve as Jurors What They Would Believe as
Men.
305. Better that Guilty Escape than that Innocent be Punished.
306. Applying Doctrine to Degrees of Crime.
307. Instructions Bad as Requiring too High a Degree of Proof
to Overcome a Reasonable Doubt.
308. Instructions Bad as Requiring too High a Degree of Proof
of Innocence.
(643)
§286 'INSTRUCTIONS TO JURIES. [Ch. 28
309. Sufficiency of Instructions Talsen as a Wliole.
310. Reasonable Doubt in Civil Cases.
311. Miscellaneous Cases.
§ 286. Necessity of instmctions on this subject.
It is error to refuse a request to charge that the burden ia
upon the state to show every element of the crime alleged
against the defendant beyond a reasonable doubt.-^ A mere
definition of reasonable doubt is insufficient.^ Though re-
quests are not in all respects such as the trial judge should
give, yet, if they call his attention to 'the fact that the ac-
cused rests his defense largely on the theory of reasonable
doubt, he should state the principle of reasonable doubt to
the jury substantially and clearly.* If, however, the evi-
dence is such as does not suggest a doubt, and guilt is clearly
proved, a failure of the court to instruct on reasonable doubt
on request will be harmless error, and not ground for re-
versal.* Whether the court should charge on this subject,
in the absence of request, depends both on the facts of the
case and the statutes of the state in which the question
arises. If the evidence suggests no doubt, it would, of
course, be no ground for reversal that the court gave no in-
structions on this subject on its own motion. In some juris-
dictions, the court is, in criminal cases, required by statute
to instruct the jury fully on all the law pertinent to the case,
1 Elmore v. State, 92 Ala. 51; Lane v. State, 85 Ala. 11; Reeves
V. State, 29 Fla. 527; People v. Cohn, 76 Cal. 386; Compton v. State,
110 Ala. 24; People v. Cbeong Foon Ark, 61 Cal. 527; Black v. State,
1 Tex. App. 369; Treadway v. State, 1 Tex. App. 669; May v. State,
6 Tex. App. 191; Crane v. State, lil Ala. 45; Madden v. State, 67
Ga. 151; State v. Fannon, 158 Mo. 149.
2 State V. Fannon, 158 Mo. 149.
3 Madden v. State, 67 Ga. 151.
4 Seller v. State, 76 Ga. 103; Suiter v. State, 76 Ga. 105; Pilklnton
V. State, 19 Tex. 214; Van Brown v. State, 34 Tex. 186. Sea, also.
Reg. V. Riendeau, 9 Rap. Jud. Que. B. R. 147.
(644)
Ch. 38] ON REASONABLK DOUBT. § 287
and under a statute of this nature it is apprehended the court
should instruct on reasonable doubt, though no special re-
quest is made therefor, if the evidence is such that a rea-
sonable doubt may arise from it." Where a statute provides
that the court shall instruct the juiry, in felony cases, to ac-
quit 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 evidence, or in which the evi-
dence does not clearly establish the guilt of the defend-
ant.® This statute, however, does not require an instruc-
tion on reasonable doubt in misdemeanor cases, unless re-
quested, but it is error not to give such an instruction when
asked.'' In another jurisdiction, where a 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.* In concluding this
branch of the subject, it may be said that, if there is any
doubt of defendant's guilt arising from the evidence, it is
the better practice to give an instruction on this subject, even
though not requested, and though there is no statutory provi-
sion requiring such an instruction.*
§ 287. Eepetition of instructions on reasonable doubt unnec-
essary.
Where a correct instruction has been given on the subject
= Richardson v. State, 70 Ga. 825. A number of other states be-
sides Georgia have statutes like the one mentioned in the text.
6 Lindsay v. State, 1 Tex. App. 327 ; Spears v. State, 2 Tex. App.
244; Robinson v. State, 5 Tex. App. 519; Hutto v. State, 7 Tex. App.
44; Priesmuth v. State, 1 Tex. App. 481; Goode v. State, 2 Tex.
App. 520.
7 May V. State, 6 Tex. App. 191; Treadway v. State, 1 Tex. App.
669; Goode v. State, 2 Tex. App. 520.
"State v. McCarty, 73 Iowa, 51; State v. Wood, 46 Iowa, 116.
• Lawless v. State, 4 Lea (Tenn.) 173.
(645)
§ 287 INSTRUCTIONS TO JURIES. [Ch. 2S
of reasonable doubt, the court may properly refuse a request-
ad instruction on that subject, though it be correct.'" There-
fore, where the jury had been instructed to acquit if they had
a reasonable doubt of defendant's guilt on the whole evidence,
it was proper to refuse an instruction "that every material fact
in the indictment rdust be established beyond a reasonable
doubt."" So it is proper to refuse to instruct that a mere pre-
ponderance of evidence would not justify an acquittal where
the court had charged fully on the doctrine of reasonable
doubt, and the burden of proof or presumption of innocence.-'^
Where the court charged, "The defendant in a criminal case is
presumed to be innocent until his guilt is established by legal
evidence beyond a reasonable doubt, and, in case you have
a reasonable doubt as to the defendant's guilt, you will acquit
him, and say by your verdict, 'Not guilty,' " a failure to
instruct, "You are further charged 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," is not erroneous.'^ It has also been held that,
after the court has charged the jury that they must find ac-
cording to the facts of the case, it is not error to refuse to
charge that they must acquit the defendant if they have a
reasonable doubt, etc., because this would be to repeat the
charge, but the propriety of this holding is questionable.'*
loMcClernand v. Com. (Ky.) 12 S. W. 148; State v. Roberts, 15
Or. 187; State v. Anderson, 10 Or. 448; People v. Cowgill, 93 Cal.
596; People v. Lenon, 79 Cal. 625; Gardiner v. State, 14 Mo. 97;
State V. Walen, 98 Mo. 222; State v. Miller, 53 Iowa, 154; State
V. Brewer, 98 N. C. 607; Patterson v. Com., 86 Ky. 313; White v.
State, 11 Tex. 7S9; State v. Wrlglit, 141 Mo. 333.
11 State V. Whalen, 98 Mo. 222.
12 People V. Rodley, 131 Cal. 240; Clark v. State "(Tex. Cr. App.)
59 S. W. 887.
13 Lewis V. State (Tex. Cr. App.) 59 S. W. 886.
"White V. State, 11 Tex. 769.
(646)
Ch. 28] ON REASONABLE DOUBT. § 288
The general instructioai upon reasonable doubt which is usu-
ally given need not be repeated in each instruction which re-
lates to the elements of the crime or the facts of the case.^^
An instruction that "defendant is presumed to be innocent
until his guilt is established by legal evidence beyond a rea-
sonable doubt, and, in case of a reasonable doubt in your
minds as to defendant's guilt, you will acquit him, and say
by your verdict, 'Not guilty,' " is a sufficient application of
the law of reasonable doubt to the different phases of the
evidence; and it is not incumbent on the court to attach to
each clause of his charge the law of reasonable doubt.*'
Where the court, at the conclusion of its charge, instructs on
reasonable doubt, it is not necessary, when charging on a
particular theory of the defense, to give, in immediate con-
nection therewith, a charge on reasonable doubt.* '^ It is not
necessary to repeat in each successive instruction the doc-
trine of reasonable doubt.**
S 288. Necessity of defining reasonable doubt.
In a number of decisions, the reviewing courts have said
that it would be better practice not to attempt any definition
of this term.** One court expressed its views as follows:
i» State V. Cross, 68 Iowa, 180; State v. Hennessy, 55 Iowa, 299;
State v. Murdy, 81 Iowa, 603.
i«Edens V. State (Tex. Cr. App.) 55 S. W. 815; Powell v. State,
28 Tex. App. 393; Tate v. State, 35 Tex. Cr. App. 231; Robinson
T. State (Tex. Cr. App.) 63 S. W. 869.
"Ford V. State (Tex. Cr. App.) 56 S. "W. 338.
i»McCuIIey v. State, 62 Ind. 428; Steiner v. People, 187 111. 244.
i« Hamilton v. People, 29 Mich. 194; People v. Stubenvoll, 62 Mich.
829; McKleroy v. State, 77 Ala. 95; Miles v. United States, 103 U.
S. 304; State v. Reed, 62 Me. 142; State v. Rounds, 76 Me. 124;
Mickey v. Com., 9 Bush (Ky.) 593; State v. Kearley, 26 Kan. 87;
State y. Mosley, 31 Kan. 358; St»te v. Sauer, 38 Minn. 439; Com.
V. Tuttle, 12 Cush. (Mass.) 502.
(647):
§ 288 INSTRUCTIONS TO JURIES. [Ch. 28
"If a jury cannot understand their duty when told they must
not convict when they have a reasonable doubt of the prisr
oner's guilt, or of any fact essential to prove it, they can
very seldom get any help from such subtleties as require a
trained mind to distinguish."*" And in another case it
was said: "The term 'reasonable doubt' is almost incapa-
ble of any definition which will add much to what the words
themselves imply. In fact, it is easier to state what it is
not, than what it is ; and it may be doubted whether any at-
tempt to define it will not be more likely to confuse than to
enlighten ai jury. A man is the best judge of his own feel-
ings, and he knows for himself whether he doubts, better than
any one else can tell him."** Where, while the jury were
out deliberating upon their verdict, the jury sent word to
the court, through the sheriff, that they desired an additional
charge upon the meaning of reasonable doubt, and the
court called the jury into the court room, and asked them
verbally whether they desired an additional charge upon the
meaning of the two words, "reasonable doubt," and the jury,
through their foreman, said that they did, a verbal instruc-
tion "that the two words, 'reasonable doubt,' were words
of common use, and the jury could understand them as eas-
ily as the court, and the court had a reasonable doubt as
to whether or not he could, under the law, charge them as
to their meaning," was not error.** Nevertheless, most courts
20 Hamilton v. People, 29 Mich. 194.
21 State V. Sauer, 38 Minn. 439. In People v. StubenvoU, 62 Mich.
329, it Is said: "Language within the comprehension of persons
of ordinary intelligence can seldom be made plainer by further defi-
nition or refining. All persons who possess the qualifications of
jurors know that a 'doubt' is a fluctuation or uncertainty of the
mind arising from defect of knowledge, or of evidence, and that a
doubt of the guilt of the accused, honestly entertained, is a 'reason-
able doubt.' "
22Lenert v. State (Tex. Cr. App.) 63 S. W. 563.
(648)
CIl. 28J ON REASONABLE DOUBT. g 289
attempt to define the meaning of the term, but the definitions
are almost innumerable, and far from harmonious. Defi-
nitions which have been approved in some jurisdictions have in
others been held so erroneous as to necessitate a reversal.
It has' been held to be the duty of the court to explain to the
jury what is meant by the term "reasonable doubt" when re-
quested, and a refusal to do so is reversible error.^^ But the
courts all agree that error cannot be assigned to a failure to
give this instruction, tmless a request therefor has been
made.'^* Even where the court gives a definition, and it is
not full enough, or is inadequate, counsel cannot complain
of it unless he has requested a more specific instruction.^^
Accordingly, it was held that, where the court defined a rea-
sonable doubt as a "doubt which a reasonable man, of
sound judgment, without bias, prejudice, or interest, after
calmly, conscientiously, and deliberately weighing all the tes-
timony, would entertain as to the guilt of the prisoner," the
counsel should have asked, at the time, such additional in-
struction as he desired, the definition being inadequate.**
S 289. Statutory definitions.
If the term "reasonable doubt" is defined by statute, an
instruction defining it in the exact language of the statute
will be sufficient,^'^ and will convey the meaning of the term
better than a more labored effort to explain it.** So, if the
23 People V. Lachanais, 32 Cal. 434.
2* State V. Smith, 65 Conn. 283; People v. Waller, 70 Mich. 237;
People v. Flynn, 73 Cal. 511; People v. Ahern, 93 Cal. 518; People
V. Gray, 66 Cal. 277; Winn v. State, 82 Wis. 571; Butler v. State,
7 Baxt. (Tenn.) 35; Colee v. State, 75 Ind. 512; State v. Johnson,
19 Wash. 410.
20 State V. Reed, 62 Me. 129; People v. Sheldon, 68 Cal. 434.
28 State V. Reed, 62 Me. 129.
2TMassey v. State, 1 Tex. App. 564; Chapman v. State, 3 Tex.
App. 67; Bland v. State, 4 Tex. App. 15; Ham v. State, 4 Tex. App.
«45.
28 Massey t. State, 1 Tex. App. 564.
(649)
§ 290 INSTRUCTIONS TO JURIES, [Qh. 28
court instructs substantially in the language of the statute,
there can be no ground of complaint.*®
§ 290. Defining as a doubt for which reasons based on evi-
dence can be given.
In a number of jurisdictions, instructions defining a rea-
sonable doubt as one for which reasons based upon the evi-
dence can be given have been approved,'* and the rule ex-
pressed as follows : "A doubt for which some good reason,
•rising from the evidence, can be given ;"*^ "a doubt for
which a good reason can be given, which reason must be
based on the evidence, or the want of evidence ;"'^ "the doubt
must be a reasonable doubt, not a conjured-up doubt, — such
a doubt as you might conjure up to acquit a friend, — ^but one
that you could give a reason for ;"'* "such a doubt that the
reason for it can be examined and discussed."^* "If the
jury believe that the evidence, upon any essential point in
the case, admits of any reasonable doubt, a doubt consistent
with reason, the prisoner is entitled to the benefit of it."^'
So it has been held that an instruction that a reasonable
doubt is "a doubt arising out of the facts and circumstances
of the case, in maintaining which you can give some good
reason," although not strictly accurate, is not necessarily er-
as Bramlette v. State, 21 Tex. App. 611.
80 United States v. Jackson, 29 Fed. 504; United States v. John-
son, 26 Fed. 682; United States v. King, 34 Fed. 302; Vann v. State,
83 Ga. 44; People v. Guidlcl, 100 N. Y. 503. See, also. State v. Neel
(Utah) 65 Pac. 494.
31 People v. Guidicl, 100 N. Y. 503; United States v. Johnson, 26
Fed. 682.
82 United States v. Jackson, 29 Fed. 504.
83 Vann v. State, 83 Ga. 44.
8* State V. Rounds, 76 Me. 123.
86 State V. Meyer, 58 Vt. 457.
88 People V. Stubenvoll, 62 Mich. 329.
(650)
Oh. 28] ON REASONABLE DOUBT. § 290
A number of decisions maintain that instructions lite those
preceding are misleading and erroneous.*^ In one of these
-decisions it is said that defining a doubt as one for which a
reason can be given is erroneous, because every reason,
whether based on substantial grounds or not, does not consti-
tute a reasonable doubt, in law.** 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 with-
hold a verdict of guilty must be a reasonable one, — must De
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.'*
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.*"
ST Cowan V. State, 22 Neb. 519; Carr v. State, 23 Neb. 749; Morgan
V. State, 48 Ohio St. 371; Ray v. State, 50 Ala. 104; State v. Lee
(Iowa) 85 N. W. 619; Thomas v. State, 126 Ala. 4; Klyce v. State,
78 Miss. 450; Avery v. State, 124 Ala. 20, 27 So. 505; Bodine v., State
(Ala.) 29 So. 926.
38 Ray V. State, 50 Ala. 104.
89 Klyce V. State, 78 Miss. 450.
*o Bodine v. State (Ala.) 29 So. 926.
resi)
,,§ 291 INSTRUCTIONS TO JURIES. [Ch. 28
S 291. Defining as a doubt wMch would cause a reasonable
man to pause and hesitate in the graver transactions
of life.
In a mimter of cases, reasonable doubt has been defined
as "one arising from a candid and impartial investigation of
all tbe evidence, and such as, in the graver transactions of
life, would cause a reasonable and prudent man to hesitate
and pause," and instructions in this language approved.'*^ 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 prudent 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,
"May V. People, 60 111. 119; Miller v. People, 39 111. 457; Dunn
T. People, 109 111. 635; Connaghan v. People, 88 111. 460; Minicli
V. People, 8 Colo. 454; Spies v. People, 122 111. 1; Com. v. Miller,
139 Pa. 77; Willis v. State, 43 Neb. 102; Carr v. State, 23 Neb. 749;
State V. Pierce, 65 Iowa, 89. A reasonable doubt is such as would
cause a juror to hesitate and to refrain from acting were it a
grave business matter involved. State v. Dickey (W. Va.) 37 S.
E. 695. An instruction: "A reasonable doubt is such a doubt as
exists in the mind of a reasonable man after a full, free, and care-
ful examination and comparison of all the evidence. It must ba
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 objectionable as making the ver-
dict of the jury depend upon a mere preponderance of the evidence,
and any attempt to define reasonable doubt will not escape qritl-
cism. State v. Crockett (Or.) 65 Pac. 447.
(652)
Ch. 28] ON REASONABLE DOUBT. g 229
that doubt is not such a reasonable doubt as would justify
the jury, in a criminal case, in returning a verdict of acquit-
tal.""
§ 292. Defining as a doubt one the absence of which would ,
cause a reasonably prudent man to act in his own
most important affairs.
To understand the instructions on this head, the writer
has thought it best to set out the rules of evidence laid down
, by text writers. Starkie says : "A juror ought not to con-
demn unless the evidence exclude from his mind all reason-
able doubt as to the guilt of the accused, and, as has been
well observed, unless he be so convinced by the evidence that
he would venture to act upon that conviction in matters of the
highest concern and importance to his own interests.""*^ And
in Greenleaf's work on Evidence the following statement is
made: "The jury should be persuaded 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 transac-
tion of their own most important concerns, — * * * the
certainty men would require in their own most impor-
tant concerns."** Some decisions distinctly and unequivo-
cally repudiate these rules, at least so far as stating them
by way of instruction is concerned.*^ Accordingly, the fol-
lowing instructions have been disapproved and held reversi-
ble error : It is the jury's duty to convict if they are "satis-
fied of the guilt of the defendant to such a moral certainty
42Minich v. People, 8 Colo. 440, 455.
43 starkie, Ev. (9th Ed.) 865.
"3 Greenl. Ev. (14tli Ed.) § 29, note (a).
*B People V. Bemmerly, 87 Cal. 121; People v. Wohlfrom (Cal.)
26 Pac. 236; People v. Brannon, 47 Cal. 96; Jane v. Com., 2 Mete.
(Ky.) 30; Ray v. State, 50 Ala. 104; State v. Oscar, 52 N. C. 305;
People v. Lenon, 79 Cal. 625; Territory v. BanDlgan, 1 Dak. 451;
State V. Crawford, 34 Mo. 200.
(653)
§ 292 INSTRUCTIONS TO JURIES. [Ch. 28
as would influence the minds of the jury in the important
affairs of life ;"** 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;"*^ or that, "to exclude the rational
doubt, the evidence should be such as that men of fair, ordi-
nary capacity would act upon in matters of high importance
to themselves."** The view taken by these decisions is that
instructions of this nature deprive the defendant of the ben-
efit of a reasonable doubt, by lessening the quantum of evi-
dence necessary to a conviction, and that men frequently act
in their most important affairs upon a mere preponderance
of evidence.*' Thus it has been said: "It is a mistake to
say that there cannot remain a reasonable doubt, when even
the evidence is such that a man of prudence would act upon
it in his own affairs of the greatest importance.'"*" "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 conclusion, upon
which they proceed to act, although they may not be fully
convinced of its correctness."^^ There are, however, many
decisions which hold that instructions embodying this rule
are correct, and may properly be given.''^ Thus, the foUow-
*8 People V. Brannon, 47 Cal. 96.
«Jane v. Com., 2 Mete. (Ky.) 30.
*8 State V. Oscar, 52 N. C. 305.
4» People V. Brannon, 47 Cal. 96.
00 People V. Bemmerly, 87 Cal. 121.
01 Jane v. Com., 2 Mete. (Ky.) 30.
02 State V. Nash, 7 Iowa, 347; State v. Ostrander, 18 Iowa, 435;
State V. Schaffer, 74 Iowa, 704; Polin v. State, 14 Neb. 540; Carr
V. State, 23 Neb. 749; State v. Kearley, 26 Kan. 77; Stout v. State,
90 Ind. 1; Jarrell v. State, 58 Ind. 293; Heyl v. State, 109 Ind. 589;
Lawhead v. State, 46 Neb. 607; Emery v. State, 92 Wis. 146; Ander-
(654)
Ch. 28 J ON REASONABLE DOUBT. § 292
ing instructions, substantially the same, but differing in lan-
guage, have been approved: "To exclude such doubt, the
evidence must be such as to produce in the minds of pru-
dent men such certainty that they would act on the convic-
tion, without hesitation, in their own most important af-
fairs.'"*' "If you are not, then, so satisfied and convinced
of defendant's guilt that you would act upon that conviction
in matters of highest importance to yourselves, you should
give the defendant the benefit of your doubt, and acquit.""*
"Evidence is sufficient to remove reasonable doubt when it
is sufficient 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.'""* The following instruction
attempting to state this rule has been condemned as not suf-
ficiently 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 mat-
ter of grave importance to himself, 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 impossi-
ble for him to determine as to which of the two results would
be most advantageous to him."®* There is also a class of
cases in which instructions using the words "important af-
fairs" have been sustained;*^ as that the jury, in order to
son V. State, 41 Wis. 430; Com. v. Miller, 139 Pa. 77. See State
V. Dickey ("W. Va.) 37 S. B. 695; State v. Neel (Utah) 65 Pac. 494.
03 State V. Kearley, 26 Kan. 77.
0* State T. SchafEer, 74 Iowa, 704.
6B Jarrell v. State, 58 Ind. 293. An instruction in Stout v. State,
90 Ind. 1, almost Identical -with the above, was approved.
06 State V. Bridges, 29 Kan. 138.
s7 United States v. Wright, 16 Fed. 112.
(655)
!j 292 INSTRUCTIONS TO JURIES. [Ch. 28
render a verdict of guilty, must find the facts to be estab-
lished to such a degree of certainty as they would regard
as sufficient in the important affairs of lif e.^* So the court
may instruct that, "by 'reasonable doubt/ 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."^* But an
instruction, after stating that accused is entitled to the bene-
fit of a reasonable doubt, that "the doubt mvist not be a mere
possible doubt, but it must be a doubt sustained by the evi-
dence, 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 erroneous, as calcu-
lated to mislead.^^" And an instruction that a reasonable
doubt is "such as you would be willing to act upon in more
weighty and important matters relating to your own affairs,"
if it stand alone, is questionable.®^'' These decisions, how-
ever, are clearly against the weight of authority. A larger
number of decisions hold that such instructions are too nar-
row, and fall short of stating the rule.®'' They hold that a
juryman, in a criminal c. i must use all the reason, pru-
dence, and judgment which a man would exercise in the
"most important" affairs of life, and that an instruction au-
thorizing the use of any less degree of reason, prudence, and
68 United States v. Wright, 16 Fed. 112.
69 United States v. Jackson, 29 Fed. 503.
is9a Bray v. State, 41 Tex. 560.
Bob State V. Neel (Utah) 65 Pac. 494.
60 Bradley v. State, 31 Ind. 492; Com. v. Miller, 139 Pa. 77; Palm-
erston v. Territory, 3 Wyo. 333; State v. Dlneen, 10 Minn. 407 (Gil.
325); Emery v. State, 92 Wis. 146; Anderson v. State, 41 Wis. 430;
Jenkins v. State, 35 Fla. 737; State v. Shettleworth, 18 Minn. 208
(Gil. 191).
(656)
Ch. 28] ON REASONABLE DOUBT. g 293
judgment is erroneous;®^ that the certainty of guilt "must
be such a certainty as would justify to the mind action,
not only in matters of importance, hut in those involv-
ing the highest import, involving the dearest interests."*^
In accordance vyith 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."^^ "The proof is deemed
suiEcient when the evidence is sufficient to impress the jxidg-
ment of ordinarily prudent men with a conviction on which
they would act in an important affair of their own."®'* 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."®^ "If the same quan-
tity, and quality of evidence offered here was offered to a rea-
sonably careful business man, as to important business trans-
actions, and it would induce him to act in his important
business matters, there cannot be said to be a reasonable
doubt."««
§ 993. Absence of reasonable doubt as equivalent to "moral
certainty," or "reasonable and moral certainty."
In one case the court was asked to charge that the defend-
ant could not be convicted unless the jury were satisfied by
Ae evidence, to a moral certainty, that the defendant was
guilty. The reviewing court sustained a refusal of this in-
struction, saying: "We know of no case by which a charge
ei Emery v. State, 92 Wis. 146.
82 Bradley v. State, 31 Ind. 492.
'3Com. v. Miller, 139 Pa. 77.
8* Palmerston v. Territory, 3 Wyo. 333.
«6 Territory v. Lopez, 3 N. M. (Gild.) 156, 3 N. M. (Johnson) 104.
68 State V. Shettleworth, 18 Minn. 208 (Gil. 191).
(657)
42. — ins. to Juries.
§ 293 INSTRUCTIONS TO JURIES. [Ch. 28
like the one asked tas ever been recognized as a legal charge,
— no one in which such a charge was ever before asked. Its
very novelty was a sufficient reason for its refusal. It is a
maxim of the law that 'the old way is the safe way.' "®^ If
the court, as may be inferred from this language, intended
to condemn this instruction purely on the ground of its nov-
elty, it was in error. There are a number of cases, some of
which are prior in point of time, where instructions sub-
stantially the same have been given or approved- Thus, in
an English case, the absence of reasonable doubt was de-
clared to be "such a moral certainty as convinces the minds
of the tribunal, as reasonable men, beyond all reasonable
doubt."®* In the Webster Case the jury were instructed that
"it is that state of the case which, after the entire compari-
son and consideration of all the evidence, leaves the minds
of jurors in that condition that they cannot saj that they
feel an abiding conviction, to a moral certainty, of the truth
of the charge."®* So, in other cases, the following instruc-
tions have been approved: "A juror is understood to en-
tertain a reasonable doubt when he has not an abiding con-
viction, to a moral certainty, that the party accused is
guilty."'** "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."'^ Instructions sub-
stantially the same as these have been upheld in a number of
eTMcAlpine v. StatSi 47 Ala. 78. It will be seen from an ex-
amination of otUer Alabama cases cited In this section that this
case is in direct conflict with them.
68 Reg. V. Sterne, Surrey Sum. Ass. 1843, cited in 3 Greenl. Bv.
§ 29.
89 Com. v. Webster, 5 Cush. (Mass.) 295, 320.
'0 State V. Vansant, 80 Mo. 72.
'1 Riley v. State, 88 Ala. 193.
(658)
Ch. 28] ON REASONABLE DOUBT. § 293
other cases,''* and their refusal held erroneous^* So, in
some eases, 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 certainty," in-
stead of "to a moral certainty.'"* It has accordingly 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 the defendant's'
guilt."^® It is not proper, however, to instruct that "persons
sometimes say they are morally certain 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 rea-
sonable doubt.'"^® An instruction that "a reasonable doubt
is an impression, after a full comparison and consideration
of all the evidence, 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
conclTision, amounting to a certainty, without any qualifica-
tion whatever, — 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 "moral," or some
equivalent word or phrase.'' '^
'2 People V. Padillia, 42 Cal. 536; McKleroy v. State, 77 Ala. 95;
Coleman v. State, 59 Ala. 52; Turbeville v. State, 40 Ala. 715; Lowe
V. State, 88 Ala. 8. See, also. Gray v. State (Fla.) 28 So. 53.
'3 Williams v. State, 52 Ala. 411.
'4 Dunn V. People, 109 111. 635, 645; Com. v. Costley, 118 Mass.
1, 24; Sullivan v. State, 52 Ind. 309; Com. y. Webster, 5 Cush.
(Mass.) 295, 320.
7B Sullivan v. State, 52 Ind. 309.
7eHeldt v. State, 20 Neb. 492.
''State V. Powers, 59 S. C. 200.
(659)
§ 294 INSTRUCTIONS TO JURIES. [Ch 2
§ 294. Absence of reasonable doubt as equivalent to an "abid
ing conviction to a moral certainty."
It has also been held not improper to instruct that the state
of mind excluding a reasonable doubt "is that state of the
case which, after the entire comparison and consideration oJ
all the evidence, leaves the minds of jurors in that condition
that they cannot say they feel an abiding conviction, to a
moral certainty, of the truth of the charge ;"'^* or 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."^* On the other hand, it
has been held proper to state to the jury the converse of this
proposition, — "that if, after a careful consideration and ex-
amination 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."*" An instruction that, "by a reasonable doubt is
meant a doubt based on reason, and which is reasonable in
vieV of all the evidence ; and if, after an impartial considera-
tion and comparison of all the evidence in the case, you can
candidly say that you are not satisfied of the defendant's
guilt, you have a reasonable doubt ; but if, after such impar-
tial 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, and
should fairly, naturally, and reasonably arise out of the evi-
78 Com. V. Webster, 5 Gush. (Mass.) 295, 320; State v. McCune,
16 Utah, 170.
'» State v. Vansant, 80 Mo. 67, 72.
80 McKee v. State, 82 Ala. 32.
(660)
Ch. 38] ON REASONABLE DOUBT. g 295
dence as given in the case," is not erroneous.®^ An instruc-
tion 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 certain-
^y_»82 Q^-j^g instruction requires and implies moral certainty.
§ 295. Neg^ative definitions.
In defining reasonable doubt, many definitions of a nega-
tive nature have been approved. Thus it has been held prop-
er to tell the jury that a reasonable doubt "is not mere possi-
ble doubt, because everything relating to human affairs, and
depending on moral evidence, is open to some possible or
imaginary doubt."*^ "A serious, substantial, and well-found-
ed doubt, and not the mere possibility of a doubt."** "Not a
possible doubt, not a conjectural 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 re-
quired by law."*? "The doubt which requires an acquittal
must be actual and substantial, not mere possibility or specu-
lation. It is not a mere possible doubt, because everything
relating to human affairs, and depending upon moral evi-
dence, is open to some possible or imaginary doubt."*® "That
which amounts to mere possibility only, or to conjecture or
81 state V. Neel (Utah) 65 Pac. 494. •
82 State V. Van Tassel, 103 Iowa, 6.
83 Charge of Chief Justice Shaw in Com. v. Webster, 5 Gush.
(Mass.) 295.
Si Smith V. People, 74 111. 144; Minich v. People, 8 Colo. 454; Earil
V. People, 73 111. 334; Kennedy v. People, 40 111. 488.
SB Dunn v. People, 109 111. 635.
88 Little V. State, 89 Ala. 99.
(661)
g 295 INSTRUCTIONS TO JUKIJSS. L(Jh. 2«
supposition, is not what is meant by a reasonable doubt."^''
"ISiot a mere possible doubt, nor is it a captious or imaginary
doubt."*® "Not a vague or uncertain doubt."*® It "should
grow out of the evidence in the case, and not be merely specu-
lative, conjectural, or imaginary."** "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."** "A
real, substantial, well-founded doubt, arising out of the evi-
dence in the cause, and not a mere possibility that the de-
fendant is innocent."*^ "IsTot n far-fetched one [doubt] ; it
is not a speculative one; it is not an arbitrary one; but it is
just what it assumes to be, — a reasonable doubt."** A "real
and substantial, and not an imaginary -or speculative,
doubt."** Not a "fanciful conjecture or strained infei^
ence."*° "Not a mere imaginary, captious, or possible doubt,
but a fair doubt, based upon reason and common sense, and
growing out of the testimony in the case."*^ "Not a mere
guess — a mere surmise — ^that one may not be guilty of what
is charged."*'^ Not "a mere misgiving of the imagination,
suggestion of ingenuity, or sophistry, or misplaced sym-
pathy."** Not "a doubt suggested by the ingenuity of conn-
s' Cicely V. State, ,13 Smedes & M. (Miss.) 202.
88 People V. Dewey, 2 Idaho, 79.
89 State V. Dickey, 48 W. Va. 325.
»o State V. Krug, 12 Wash. 288.
91 State V. David, 131 Mo. 380, 33 S. W. 28.. To the same effect,
see State v. Duncan, 142 Mb. 456; State v. Fisher, 162 Mo. 169;
State V. Adair, 160 Mo.«391; State v. Holloway, 156 Mo. 222, 56 S.
W. 734; State v. Cushenberry, 157 Mo. 168.
92 State V. Blunt, 91 Mo. 503.
93 McGuire v. People, 44 Mich. 286.
94 United States v. Keller, 19 Fed. 633.
96 United States v. Jackson, 29 Fed. 503.
90 State V. McCune, 16 Utah, 170.
9T United States v. Johnson, 26 Fed. 682.
98 State V. Murphy, 6 Ala. 846.
(662)
Ch. 28] ON REASONABLE DOUBT. § 295
sel, or by your own ingenuity, not legitimately warranted by
the testimony, or one born of a merciful inclination or dispo-
sition to permit the defendant to escape the penalty of the
law, or one prompted by sympathy for him, or those con-
nected with him."®® Not "a doubt generated by sympathy
for the accused. "^°*' itfot "a doubt produced by undue sensi-
bility in the mind of any juror, in view of the consequences
of his verdict.""! "The doubt * * * must be real,
not captious or imaginary."!"^ 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 defendant can be explained consistently
with his innocence," this should create a reasonable doubt.
This charge is not objectionable on the ground that it as-
sumes the guilt of the defendant, and imposes on him the bur-
den 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 inno-
cence.-"^ It is proper to instruct that the "mere possibility
that the defendant may be innocent will not warrant a verdict
of not guilty."!"* Or that they "should not go beyond the ev-
idence to hunt for doubts, nor * * * entertain such doubts
»9 United States v. Harper, 33 Fed. 471.
100 State V. Robin^n, 27 S. C. 615.
101 State V. Potts, 20 Nev. 389; Spies v. People, 122 111. 1; Watt
V. People, 126 111. 9.
102 State V. Ostrander, 18 Iowa, 437, 459; People v. Finley, 38 Mich.
482. But see Smith v. State, 9 Tex. App, 150; State v. Swain, 68
Mo. 605, in which the use of these words .'s coDdemned. The Mis-
souri court, in passing on this question, saiu: "It is better to ad-
here to well-settled instructions than to attempt new departures
and experiments in criminal procedure."
108 People- V. Winters, 93 Cal. 277.
104 See State v. Vansant, 80 Mo. 67, 72.
(663)
§ 295 INSTRUCTIONS TO JURIKS. [Ch. 28
as are merely ehimericaJ, or based on grouudless conject-
yj,g_»io6 Qp that, though "the defendant is entitled to the ben-
efit 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.' "^°^ 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 mis-
leading.^"^ An instruction, in defining reasonable doubt, that
the jury "should not create sources of material doubt by re-
sorting to trivial or fanciful suppositions or remote conject-
ures as to a probable state of facts differing from that estab-
lished from the evidence," is not erroneous as impliedly au-
thorizing the jury to create such doubt in that manner, pro-
vided "the probable state of facts" did not differ from that es-
tablished by the evidence.*"*
The following negative definitions have been held errone-
ous : "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."*"* An instruction that,
"if the jury believe from the evidence that the defendant is
guilty as charged in the indictment, beyond a reasonable
doubt, they must not acquit him because there may be a mere
probability of the defendant's innocence, unless such prob-
ability be a reasonable probability from all the evidence,"
is erroneous because of the incompatibility between belief
in defendant's guilt beyond a reasonable doubt and probabil-
105 See State t. Pierce, 65 Iowa, 89, 90; State v. Blsham, 70 Iowa,
531.
108 Giles V. State, 6 Ga. 276, 284.
107 Littleton v. State (Ala.) 29 So. 390.
108 McArthur v. State, 60 Neb. 390.
109 Densmore v. State, 67 Ind. 306, in which the reason assigned
was that this definition excludes all reasonable doubts arising from
lack or want of evidence.
(664)
Ch. 28] ON REASONABLE DOUBT. § 296
ity of his innocence.^^" "A reasonable doubt is not prob-
ability only, or conjecture, or supposition. The doubt whicb
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." This was held erroneous, as im-
posing on the jury the obligation to convict, although the evi-
dence might preponderate in favor of the accused.-^^^ An
instruction to the jury that, "while it is true they are not au-
thorized to convict unless, from aU the evidence, they be-
lieve, 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 sufficient, 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.^^*
§ 296. Not a doubt as to law.
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.-*^' It was accordingly Jield proper to refuse an in-
struction "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 rea-
sonable 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."^ ^*
110 Smith V. State, 92 Ala, 30.
111 Browning v. State, 30 Miss. 657, 672.
112 Jeffries v. State (Miss.) 28 So. 948.
iisOneil v. State, 48 Ga. 66; State v. Meyer, 58 Vt. 457, 463l
1" Oneil V. State, 48 Ga. 66.
(G65)
§ 298 INSTRUCTIONS TO JURIES. [Ch. 28
Or that, "if the jury entertain the slightest doubt upon '.'rz
questions of law presented by the court, the prisoner is en-
titled 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."^^'*
§ 297. Not a doubt raised by argument of counsel.
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 reasonable
doubt doubtful of comprehension.^^*
§ 298. Entire satisfaction of guilt as equivalent to absence of
reasonable doubt.
There is some conflict of authority on this question. In
one jurisdiction it is settled law that a conviction cannot be
had unless the jury are "entirely satisfied" of defendant's
guilt ;^^'' 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."^^* "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 reason-
able doubt, although they may not be entirely satisfied from
115 state V. Meyer, 58 Vt. 457.
116 People V. Ammerman, 118 Cal. 23. See, also, HortoH v. Com.
(Va..) 38 S. E. 184.
117 People V. Phlpps, 39 Cal. 326, overruling People v. Cronin, 34
Cal. 191. See, also, other California decisions cited in this section.
118 People V. Brown, 59 Cal. 345.
(666)
Ch. 28] ON REASONABLE DOUBT. § 298
the evidence that the defendant and no other person com-
mitted the alleged offense."*^* The court, in condemning this
latter instruction, said in one of these cases that this instruc-
tion, "in effect, assigns a lower grade to moral certainty be-
yond a reasonable doubt than is given to it by the law, and
permits the jury to convict 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 rea-
sonable doubt, they are entirely satisfied. The truth of any
f aet which is to be proven by evidence cannot be established
beyond the possibility of a doubt, and yet the jury may be
entirely satisfied of its truth. Anything short of entire sat-
isfaction on the part of the jury of the truth of the charge
necessarily implies, in case of a conviction, that, in their opin-
ion, the charge is sustained by a mere preponderance of evi-
dence," which is not sufficient for a conviction.*^" An in-
struction : "But if, upon a full and fair consideration of all
the evidence in the ease, 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 "entirely satisfied of the defend-
ant's guilt."*^* In another jurisdiction, 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 possi-
"» People V. Kerrick, 52 Gal. 446; People v. Padlllia, 42 Cal. 535;
People V. Phipps, 39 Cal. 326.
120 People V. Padlllia, 42 Cal. 635, 540.
121 People V. Ribolsi, 89 Cal. 492.
(66V)
§ 299 INSTRUCTIONS TO JURIES. [Ch. 28
bility 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 certainty 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 reason-
able doubt, that the defendant committed the crime charged
against him, they are not legally bound to acquit him because
they may not be entirely satisfied that the defendant, and no
other person, committed the alleged offense."^^^ In sustain-
ing 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 convict."^^*
S 299. Probability of innocence may create reasonable doubt.
It is too plain for argument 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 reason-
able doubt of his guilt, and therefore for his acquittal ;"^^*
or that, "if there is a probability of defendant's innocence,"
the jury must acquit.-'^'' And for the same reason it is
122 State V. Nelson, 11 Nev. 334, 340, following People v. Cronln,
34 Cal. 191, which was afterwards overruled; State v. Bryan, 19
Nev. 365.
123 state V. Nelson, 11 Nev. 334.
12* Cohen v. State, 50 Ala. 108; Bain v. State, 74 Ala. 38, overrul-
ing Williams v. State, 52 Ala. 411, and distinguishing Ray v. State,
50 Ala. 104, where a charge in the same language, prefixed by the
assertion that "a reasonable doubt has been defined to be a doubt
for which a reason could be given," was held erroneous because It
defined a reasonable doubt as one for whlcb a reason can be given.
12S Shaw v. State, 125 Ala. 80.
(668)
Ch. 28] ON REASONABLE DOUBT. § 30O
erroneous to instruct that "a reasonable doubt is not prob-
ability 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."^^® It is manifestly impossible that
a probability of innocence and the absence of any reasonable
doubt of guilt can be coexistent. The word "probability,"
in itself, imports a preponderance of the evidence.
§ 300. A doubt arising from the evidence or want of evidence.
It is usual to instruct the jury that a reasonable doubt
must arise from the evidence,-*^^ or "from the evidence or
the want of evidence."^ ^® And in one case it was held error
to instruct that "a reasonable doubt is one suggested by, or
arising out of, the proof made," on the ground that such in-
struction excluded all reasonable doubt that might arise from
lack of evidence or want of evidence. ■'^^ And an instruction
"that the defendant is presumed to be innocent, and it de-
volves 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
beyo^id a reasonable doubt, you shbuld 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 inno-
cence," — is not objectionable on the ground that it does not
allow an acquittal oil account of any reasonable doubt arising
128 Browning v. State, 30 Miss. 656.
127 Bowler v. State, 41 Miss. 570; Cicely v. State, 13 Smedes &
M. (Miss.) 202.
i28Langford v. State, 32 Neb. 782; Earll v. People, 73 111. 329,
334; United States v. Jones, 31 Fed, 718.
129 Densmore v. State, 67 Ind. 306.
(669)
I 300 INSTRUCTIONS TO JURIES. [Ch- 28
from any lack of sufficiency in the evidence, as, wkere the
sufficiency of evidence is considered, the jury cannot avoid
considering its insufficiency.^^" Where there is positive tes-
timony that the offense charged was committed, and also testi-
mony 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 testimony, and not by a want of evi-
dence.-'^^ So, in one case it was said that a party who de-
sires an instruction that reasonable doubt may arise from
"want of evidence" should ordinarily ask it.^*^ The follow-
ing instructions on this head have been approved: "The
doubt which should properly induce a jury to withhold a ver-
dict of guilty should be such a doubt as would reasonably
arise from the evidence before them."^*^ "An actual, sub-
stantial doubt, arising from the evidence or the want of evi-
dence."^^* "An actual, substantial doubt of guilt arising
from the evidence or want of evidence in the case."^^" "A
reasonable doubt means, in law, a serious, substantial, and
well-founded doubt, and not the mere possibility 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 acquit defendant,
not arising from the evidence or want of evidence."^^* 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
ISO state V. Cushenberry, 157 Mo. 168, wherein the reason as-
signd was that, whenever the su cienecy of the evidence is con-
sidered, necessarily you must consider its insufficiency.
i»i Whitesides v. State (Tex. Cr.. App.) 58 S. W. 1016.
182 Herman v. State, 75 Miss. 340.
1SS3 Cicely v. State, 13 Smedes & M. (Miss.) 202.
i8*Langford v. State, 32 Neb. 782.
186 Ferguson v. State, 52 Neb. 432.
ii»6 Earn y. People, 73 111. 329, 334.
(670)
CIl. 28] ON REASONABLE DOUBT. § 301
excluding a doubt founded upon the knowledge of natural
iaws inconsistent 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
inconsistent with natural law, or that evidence of any natural
law would have been relevant or material.^^'' 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;"^** or that
"reasonable doubts usually arise from either want of evi-
dence, or where there was a conflict of evidence," in a case
where the question of the doubt did not arise from either of
these causes, but turned solely upon the internal credibility
of an explanation which the defendant had given of the cir-
cumstances against him, when they were first brought to his
notice.^ ^® 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 considering the evidence, that some important matter
of proof has been omitted, and their minds were not satis-
fied, this was a reasonable doubt, upon which they should
acquit.^*"
S 301. Doctrine applioahle only to evidence considered as a
whole.
The reasonable doubt which will justify and require an
acquittal must be as to the guilt of the defendant, when the
whole evidence is considered. The law does not require the
jury to believe that every fact in the case has been proved
beyond a reasonable doubt before they can find acciised
guilty. The reasonable doubt which will work an acquittal
137 People V. Donguli, 92 Gal. 607.
138 Long V. State, 23 Neb. 33.
139 McElven- v. State, 30 Ga. 869.
"0 Gray V. State (Pla.) 28 So. 53.
(671)
§ 301 INSTRUCTIONS TO JURIES. [Ch. 28
must not be as to any particular fact in the case.-'*^ An in-
struction requiring an acquittal upon a reasonable doubt rest-
ing upon a part of the evidence, considered separately from
the whole evidence, Was properly refused.-'*^ In this con-
nection, it will, according to the weight of authority, be suf-
ficient to charge that the jury should acquit if, upon the
whole evidence, 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 be-
fore they can convict. The former instruction includes the
latter, and is a. sufficient direction that each material fact
must be established beyond a reasonable doubt, while the lat-
ter is objectionable as singling out some particular fact for
the consideration of the jury, and as diverting their atten-
tion from a consideration of the evidence, taken as a whole.^*'
"1 Weaver v. People, 132 111. 536; Crews v. People, 120 III. 317;
State V. Hayden, 45 Iowa, 11; State v. Hennessy, 55 Iowa, 299;
Davis V. People, 114 111. 98; McCullough v. State, 23 Tex. App. 626;
Barker v. State, 126 Ala. 69. See, also, Bodine v. State (Ala.)
29 So. 926.
"2 Liner v. State, 124 Ala. 1.
143 state V. Stewart, 52 Iowa, 284; State v. Hayden, 45 Iowa, 11;
Nix v. State, 97 Ga. 211; Weaver v. People, 132 111. 536; State v.
Dunn, 18 Mo. 419; State v. Crawford, 34 Mo. 200; People v. Mil-
gate, 5 Cal. 127; State v. Schoenwald, 31 Mo. 155; State v. Felter,
32 Iowa, 49; State v. Schaffer, 74 Iowa, 704; Barker v. State, 126
Ala. 69; State v. Perigo, 80 Iowa, 37; United States v. Zes Cloya,
35 Fed. 493; Acker v. State, 52 N. J. Law, 259; State v. Curran, 61
Iowa, 112; McCullough v. State, 23 Tex. App. 626; Carr v. State,
84 Ga. 250, 10 S. B. 626; State v. Maloy, 44 Iowa, 104; Thurmond
V. State, 27 Tex. App. 347; Lyons v. People, 137 111. 602. In Jolly v.
Com., 22 Ky. Law Rep. 1622, 61 S. W. 49, it was said that while an
instruction that, "if the jury entertain a reasonable doubt as to
any facts necessary to constitute defendant's guilt, they must ac-
quit him," may not be misleading, it would be better to charge, in
the language of the statute, that, "if there be a reasonable doubt
of the defendant being proven to be guilty, he is entitled to an
acquital."
(672)
Ch, 28] ON REASONABLE DOUBT. § 301
"It is not incumbent upon the court to carve the case or the
evidence into different propositions, and apply the rule to
one or more of them severally.^** As an illustration of this
principle, we set out the following instructions, which were
held properly refused for the foregoing reasons: "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 kill-
ing, they must give the prisoner the benefit of the doubt, and
acquit him."^** "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 witnesses sub-
stantially as they were made, you should give the defendant
the benefit of the doubt."^*' ' "If they [the jury] have any
reasonable doubt as to whether defendant, at the time of the
shooting, was under reasonable apprehension and honest fear
that deceased intended and was about to inflict upon him
great bodily harm, and that he fired the shots under that be-
lief, and in self-defense, then the jury must acquit."^*^ In
a prosecution for larceny it is .proper to refuse to instruct
that "the jury cannot convict unless they believe from the
evidence, beyond a reasonable doubt, that the defendant had
in his possession the identical money" stolen from the prose-
cuting witness, as such possession is not necessarily an in-
gredient of the offense, and it is not required that the jury
must believe, beyond a reasonable doubt, every fact intro-
duced in evidence.^** The defendant is entitled to "a rea-
1" Carr v. State, 84 Ga. 250,
1*0 Allen V. State, 60 Ala. 19.
"« Leigh V. People, 113 111. 372.
"7 Crews V. People, 120 111. 317.
"8 Barker v. State, 126 Ala. 69.
43. — Ins to Juries.
§ 301 INSTRUCTIONS TO JURIES. [Ch. 28
sonable doubt upon every and any question of fact in the
cause."^^^ 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," pretermits
all reference to a consideration of the whole evidence by the
jury, and is misleading.*^" 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 evi-
dence 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 convinced that the third person committed the crime, and
that their failure to believe his evidence regarding the third
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."**-' 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 in-
dictment, 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 incon-
sistent material averments, — a condition the office of sepa-
rate counts in an indictment was designated, among other
"9 Acker v. State, 52 N. J. Law, 259.
iBo Gordon v. State (Ala.) 30 So. 30. See, also, Bodine v. State
(Ala.) 29 So. 926.
161 State V. Totten (Vt.) 47 Atl. 105.
(674),
Ch. 28] ON REASONABLE DOUBT. § 303
things, to prevent ^** An instruction that the rule requir-
ing the jury to be satisfied of defendant's guilt Keyond a rea-
sonable doubt "does not require that the jury should be sat-
isfied beyond a reasonable doubt of each link in the chain
of circumstances relied upon to establish the defendant's
guilt. It is sufiicient if, taking the evidence all together, the
jury are satisfied, beyond a reasonable doubt, that defendant
is guilty," — is not erroneous.^ ^^ So, instructions "that they
should weigh all the evidence and reconcile it, if possible,
but, if there be irreconcilable conflict in the evidence, they
ought to take that evidence vs^hich 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 evi-
dence, 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 testimony to be true before you can con-
vict. If, after weighing all the evidence, you have a reason-
able 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.^^*
§ 302. 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 au-
162 Littleton v. State (Ala.) 29 So. 390.
153 Gott V. People, 187 111. 249.
154 Bondurant v. State, 125 Ala. 31.
(675)
§ 303 INSTRUCTIONS TO JURIES. [Ch. 28
thorizes an acquittal. Thus, a number of decisions hold it
proper and necessary, on request, to ^ive an instruction apy
plying the doctrine of reasonable doubt to the defense of
alibi.-' ^^ 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."^ ^* 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 reasonable doubt of the guilt of
the accused, he should be acquitted.^ ^'^
S 303. As to number of jurors who must entertain a reasonable
doubt in order to acquit.
To entitle defendant to an acquittal, there must be a rea-
sonable doubt of his guilt entertained by the whole jury, and
not by any one member thereof. It is therefore erroneous
to instruct that, "if any one of the jury entertain a reasonable
doubt as to the sufficiency of the proof to establish any mate-
rial averment in the indictment, you must give the defend-
ant the benefit of the doubt, and acquit the defendant," and
a request for such ^n instruction is properly refused.''^*
This proposition is too plain to admit of controversy. An
acquittal or conviction can only be had where all the jury
agree ; and while a reasonable doubt in the minds of one or
more jurors would and does authorize a disagreement and
mistrial, it would be folly to say that a majority, or even
a minority, of the jurors who have an abiding conviction of
165 See ante, § 282.
166 Com. V. Leonard, 140 Mass. 473.
157 state V. Dunn, 18 Mo. 419.
IBS State V. Rorabacher, 19 Iowa, 155. An instruction the same in
substance was condemned for the same reason in State v. "Witt, 84
Kan. 488. See, also, Littleton v. State (Ala.) 29 So. 390.
(C76)
Ch. 28] ON REASONABLE DOUBT. § 303
defendant's guilt must adopt the views of the juror or jurors
who claim to have a .reasonable doubt of his guilt.-'"® As has
been well said: "Each juror, under his oath, must vote ac-
cording to his own conviction, and the doubt with which he
has to do is the doubt in his own mind."^*° And 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 defend-
ant, 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. "^*^ ISTevertheless it has been held
proper to refuse an instruction embodying this principle in
the following language: "If any juror entertain a reason-
able 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.-**^ So it is
proper to refuse an instruction that each individual juror
must be convinced beyond a reasonable doubt of defendant's
guilt before uniting in a verdict of guilty, since such in-
struction would be misleading.-'** An instruction: "You
cannot convict the defendant unless each of you is entirely
satisfied from the evidence before you that defendant is guilty
beyond all reasonable doubt. In determining the question,
159 See State v. Witt, 34 Kan. 488; Littleton v. State (Ala.) 29 So.
390.
i«o State V. Sloan, 55 Iowa, 217.
181 Passinow v. State, 89 Ind. 235.
182 State V. Hamilton, 57 Iowa, 596. The refusal of an instruction
to the same effect was held prober in State v. Fry, 67 Iowa, 475;
State V. Williams, 13 Wash. 335; State v. Robinson, 12 Wash. 491;
State V. Penney (Iowa) 84 N. W. 509.
163 Davis V. State, 63 Ohio St. 173. Contra, McGuire v. State, 2
Ohio Cir. Dec. 318.
(677)
§ 303 INSTRUCTIONS TO JURIES. [Ch. 28
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 ease in deference to the views or opinions of others," — is
properly refused, as a 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 com-
mon sense and judgment of "twelve good men and true."-'**
In another ease it was held reversible error to refuse an in-
struction that, "if any one of the jury, after having duly con-
sidered 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 '**®^
104 People V. Rodley, 131 Cal. 240.
166 Castle V. State, 75 Ind. 146, in which It was said: "Each jura,
should feel the responsibility resting upon him, as a member of
the body, and should realize that his own mind must be convinced
of the defendant's guilt beyond a reasonable doubt before he can
consent to a verdict of guilty." See, also, Aszman v. State, 123 Ind.
347, where It was held erroneous to refuse an instruction that, "so
long as you, or any one of you, have a reasonable doubt as to the
existence of any of the se-veral elements necessary to constitute
the several crimes above defined, the accused cannot be convicted
of such crime," unless it had already charged as to the individual
responsibility of jurors. An, instruction: "Where a criminal cause
is tried by a jury, the law contemplates the concurrence of twelve
minds in the conclusion of guilt, before a conviction can be had.
Each juror must be satisfied beyond a reasonable doubt of the de-
fendant's guilt before 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 reasonable 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 consulted with his fellow jurymen, entertain such reason-
able doubt, the jury cannot, in such case, find the defendant guilty,"
— was held properly refused as inaccurate and misleading; and an
instruction "that if, from all the evidence in the case, you each be-
lieve, as jurors, beyond a reasonable doubt, that the defendant
committed the acts of which she is accused, in manner and form
(678)
Ch. 28] ON REASONABLE DOUBT. § 303
While, as we have already seen, a defendant is not entitled
to an acquittal unless a reasonable doubt of his guilt is en-
tertained by the whole jury, it has nevertheless been held
erroneous to charge 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."^'® This instruction
was condemned on the ground that it was liable to convey
the impression that, unless such doubt was shared by all the
jurors, there should be a conviction. '*'' The following in-
struction was condemned for the same reason : "While each
juror must be satisfied of the defendant's guilt beyond a rea-
sonable doubt, to authorize a conviction, such reasonable
doubt, unless entertained by all the jurors, does not warrant
an acquittal."^ ''^ 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 rea-
sonable doubt" — ^upheld.^^® An instruction that if any one
of the jurors, after having duly considered all the evidence,
and after having consulted with his fellow jurymen, should
entertain a reasonable doubt of the defendant's guilt, in such
case they cannot find the defendant guilty, has been held im-
as charged in tlie indictment," sufficiently advised the jury as to
their individual responsibility, and that each of them must he so
convinced before he could consent to a verdict of conviction.
i«6 State V. Stewart, 52 Iowa, 284. An instruction tho same in
substance and almost identical in language was held to have been
properly refused in State v. Sloan, 55 Iowa, 217, for the same
reason.
167 State V. Stewart, 52 Iowa, 2S4.
168 stitz V. state, 104 Ind. 359. See, also. State v. Tettaton, 159
Mo. 354.
100 state v. Rogers, 56 Kan. 362.
(6Y9)
§ 304 INSTRUCTIONS TO JURIES. [Ch. 28
proper, as authorizing an acquittal in case a single juror en-
tertained a doubt of defendant's guilt.^'^" 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 instruct-
ed 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 v^ith his fellow
jurymen, and candidly considered their views with the pur-
pose of reaching a just conclusion, should entertain such
reasonable doubt, the jury cannot, in such case, find the de-
fendant guilty.""!
i 304. Must not disbelieve as jurors what they would believe
as men.
In defining and explaining reasonable doubt, it has been
held proper to instruct a jury that they "are not at liberty
to disbelieve as jurors, if from the evidence you believe as
men;"^''^ or that "you are not at liberty to disbelieve as ju-
rors if, froni 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 j''^''^ or that
"you should be convinced as jurors where you Would be con-
vinced as citizens, and you should doubt as jurors only where
you would doubt as men," where this sentence is used in con-
nection with the evidence, and when the jury are instructed
"0 state V. Taylor, 134 Mo. 109, 151.
171 State v. Gushing, 17 Wash. 544.
172 Spies V. People, 122 111. 1.
173 Hartley v. State, 53 Neb. 310; Carrall v. State, 53 Neb. 431;
Lelsenberg v. State, 60 Neb. 628.
(680)
Ch. 28] ON REASONABLE DOUBT. § 305
that they should be convinced from the evidence.^^* So, the
following instruction on this head has also been approved:
"Jurors are not artificial beings, governed by artificial or
fine-spun rules ; but they should bring to the consideration of
the evidence before them their every-day common sense and
judgment, as reasonable men; and those just and reasonable
inferences and deductions which you, as men, would ordi-
narily draw from facts and circumstances proven in the case,
you should draw and act on as jurors."^^*
S 305. Better that guilty escape than that innocent be pun-
ished.
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 pun-
ished, and, without any exception, such an instruction has al-
ways been refused.-'''® These decisions unite in declaring
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 innocent
one be convicted."^ ''^ At most, the proposition is nothing
more than a maxim, and probably as fallacious as the com-
mon run of maxims are.-''* So, a refusal to charge that "the
I'lMcMeen v. Com., 114 Pa. 300. See, also. Com. v. Harman, 4
Pa. 269; State v. Dickey, 48 W. Va. 325.
i'6 state V. Elslaam, 70 Iowa, 531.
i7« People V. Bbanks, 117 Cal. 652 ; Territory v. Burgess, 8 Mont.
57; Coleman v. State, 111 Ind. 563; Adams v. People, 109 111. 444;
Garlick v. State, 79 Ala. 265; Carden v. State, 84 Ala. 417; Ward v.
State, 78 Ala. 441; Seacord v. People, 121 111. 623; State v. Tettaton,
159 Mo. 354.
1" Adams v. People, 109 111. 444.
178 "The well-known and well-worn maxim is doubtless creditable
to humanity, but we are not aware that It has been adopted by
courts as a legal proposition to be incorporated in a charge to a
jury in a criminal trial. Like most other maxims, it has a true as
(681)
15 306 INSTRUCTIONS TO JURIES. [Ch . 28
jury have a right to consider that innocent men have been
convicted, and to consider the danger of convicting an inno-
cent man in weighing the evidence to determine whether
there is reasonable doubt as to defendant's guilt," is prop-
§ 306. Applying doctrine to degrees of trime.
"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 convicted of
the lower degree.' "^^° It has therefore been held proper to
charge, in a murder case, that "if the jury believe from all
the evidence in the case, beyond a reasonable doubt, that the
defendants are guilty of murder in the first degree or second
degree, * * * but have a doubt as to the degree of of-
fense of which the defendants are guilty, the jury will give
them the benefit of such doubt, and find them guilty of the
less offense."^^^ So it has been held that "an instruction
that, if the jury believe, from the evidence, beyond a reason-
able doubt, that the defendant is not guilty of murder in the
■vrell as a false side, and may be tortured and construed to work
harm as well as good. Fortunately, and to the credit of humanity, it
is hardly required as a shield against injustice or prejudice, for a
sense of justice and fair play is almost instinctive in the mind of
man; and experience has shown that juries are much more in-
clined to show mercy towards the guilty than to punish the inno-
cent." Territory v. Burgess, 8 Mont. 57, 78.
179 People v. Machado (Cal.) 63 Pac. 66.
180 Payne v. Com., 1 Mete. (Ky.) 370; White v. State, 23 Tex.
App. 154.
181 State V. Anderson, 86 Mo. 309. See, also, Clark v. Com. (Ky.)
63 S. W. 740.
(682)
Ch. 28] ON REASONABLE DOUBT. § 307
first degree, but that the elements of murder in the second
degree, stated therein to the jury, existed, then they should
find him guilty of murder in the second degree, must be con-
strued as applying the 'reasonable doubt' to both degrees of
murder, and cannot be prejudicial, if the jury is subsequent-
ly instructed that they should not find the defendant guilty
of murder if they entertain a reasonable 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."'*^ "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 defendant was justified in killing on the
ground of self-defense, instructions on his behalf on the ques-
tion of reasonable doubt, framed so broad as to include the
fact of killing * * * should be refused."^ ^* Instruc-
tions in such a case should apply only to the grade of the of-
fense and the fact of justification.'^* 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 homicide.'^®
i 307. Instructions bad as requiring too high a degree of
proof to overcome a reasonable doubt.
The following instructions have been held bad, as requir-
ing too high a degree of proof of guilt to overcome a reason-
able doubt: "That the jury must be convinced * * *
to- an absolute moral certainty in order to convict."^*® That
182 People V. Chun Heong, 86 Cal. 329.
183 People V. Williams, 32 Cal. 280.
184 People V. Williams, 32 Cal. 280.
186 Murray v. State, 1 Tex. App. 417; Blake v. State, 3 Tex. App.
581.
186 People V. Hecker, 109 Cal. 451.
(683)
8 307 INSTRUCTIONS TO JURIES. [Ch. 28
the jury must acquit "unless the evidence * * * is suf-
ficiently strong to remove every supposition or hypothesis
but that of his [defendant's] guilt,"i" or so strong "as to
exclude to a moral certainty every supposition or hypothesis
but that of guilt.""* That the jury should acquit if they
could "infer any reasonable theory of hypothesis of the de-
fendant's innocence, * * * although there may be
stronger probabilities of his guilt than of his innocence.""^
That "evidence to iilduce or authorize a conviction 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 innocent."^** 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, according
to the evidence against the defendant, he would be guilty,
but, according to the evidence in his favor, he would be in-
nocent, and the jury cannot tell where the truth indubitably
lies, this would furnish a just ground for a reasonable doubt,
and the defendant ought to be acquitted," as, under such in-
structions, "any possible, speculative, or imaginary doubt
would have been sufficient to prevent a conviction."**^ That
there must be a "certainty" of defendant's guilt.*®^ A
charge which requests an acquittal if there is any doubt of
187 Blackburn v. State, 86 Ala. 598; Simmons v. State (Ala.) 29
So. 929. But see People v. Smith, 162 N. Y. 520, reversing 37
App. Div. 280.
188 Harvey v. State, 125 Ala 47.
189 state V. Tettaton, 159 Mo. 354.
"oBodine v. State (Ala.) 29 So. 926.
191 Ross V. State, 92 Ala. 76.
192 State V. Powers, 59 S. C. 200, holding that the word "certainty"
should have been modified by the words "reasonable and moral."
(684)
Ch. 28] ON REASONABLE DOUBT. § 307
the defendant's guilt which is not purely speculative doubt
requires a higher degree of proof and conviction of the mind
of the defendant's guilt than the law requires.^*^ It is er-
ror to instruct: "If the state of the case is such that,
after an entire comparison, consideration, weighing, and sift-
ing of all the evidence, it leaves the minds of the jury
in that condition that they cannot say they have an abid-
ing and absolute belief of the guilt of the defendants, they
ought to iind them not guilty."^** 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 com-
mit the offense, they must acquit," because of the omission
of the word "reasonable," as expressive of the doubt re-
quiring an acquittal.-'^®^ That "the only just foundation for
a verdict 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 ; 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 defendant's
guilt, the jury ought to find him not guilty," as leading 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 prosecu-
tion has failed to furnish this full measure of proof, and to
iiiipress the minds of the jury with such full and perfect be-
lief of his guilt, he should be acquitted." An instruction
"that the only just foundation for a verdict 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
103 Perry v. State, 91 Ala. 83.
194 Whatley v. State, 91 Ala. 108.
105 McClellan y. State, 117 Ala. 140.
(685)
§ 308 INSTRUCTIONS TO JURIES. [Ch. 28
the exclusion of every reasonable douLt of his guilt," is mis-
leading where the indictment contains three counts charging
the commission of the offense in a different manner, and only
expressly charging the highest grade of the offense.^" It is
error to instruct that "the proof must do more than reason-
ably 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."^"^ So, an in-
struction requiring "clear and distinct proof" of guilt has
been held to require a higher degree of proof than is neces-
sary to convince "beyond a reasonable doubt. "^®*
S 308. Instructions bad as requiring too high a degree of
proof of innocence.
On the other hand, the following instructions have been
held bad as requiring too high a degree of proof of inno-
cence: "That a preponderance of evidence is necessary in
order to raise a reasonable doubt of defendant's guilt."^*^
That "can the facts and circumstances you find from the evi-
dence to be true exist, and can you, in view of these facts
and circumstances, reasonably conclude that the defendant is
innocent ? If so, you should find him not guilty ; otherwise
you should find him guilty."^"** That, "if you believe from
the testimony, beyond a reasonable 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, arid you should acquit him."^°^ That, "if you have a
i«s Lundy v. State, 91 Ala. 100.
1" Brown v. State (Ala.) 29 So. 200.
188 Griffitli V. State, 90 Ala. 583.
199 state V. Porter, 64 Iowa, 237; People v. Elliott, 80 Cal. 296.
200 McMillan v. State, 7 Tex. App. 142, in wbich it was said that
the jury need never conclude, reasonably or otherwise, that the
defendant is innocent, but only that the evidence fails to establish
his guilt.
201 Lewis v. State, 29 Tex. App. 105.
(686)
Ch. 28] ON REASONABLE DOUBT. § 309
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 believe the innocence of defendant beyond a reason-
able doubt.^"* That, to entitle the defendant to an acquit-
tal, the jury must be satisfied that the felonious intent did
not exist.^"^ That, if the jury thought that defendant did
not commit the crime alleged, they should give him the bene-
fit of the doubt.^"* An instruction which says that, if the
jury believe "from the evidence" all the facts material to de-
fendant's guilt, instead of requiring the jury to believe such
things beyond a reasonable doubt, is erroneous ;^''° or which
says that "all that is required to enable a jury to return a ver-
dict is, after a comparison and consideration of all the testi-
mony, to believe conscientiously that it establishes the guilt of
defendant."^"® So it is reversible error to instruct that a rea-
sonable 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 certainty of guilt or inno-
cence," since such instruction requires defendant to prove his
innocence.^"'^
5 309. Sufficiency of instructions taken as a whole.
Where the instructions, taken as a whole, clearly present
the law to the jury, minor errors in one instruction will not
be ground for reversal.^"® Thus, where the court, after cor-
202 Landers v. State (Tex. Cr. App.) 63 S. W. 557.
203 Best V. State, 155 Ind. 46.
204 State V. Raymond, 53 N. J. Law, 260.
205 Arnold v. Com., 21 Ky. Law Rep. 1566, 55 S. W. 894.
206Ellerbee v. State (Miss.) 30 So. 57.
207 state V. Moss, lOG Tenn. 359.
208 Bartley v. State, 53 Neb. 310. See, also, post, c. 32, "Appel-
late Review of Instructions."
(687)
§ 30 > INSTRUCTIONS TO JURIES. [Cli. 28
rectly instructing the jury on the subject of reasonable doubt,
said, "But mere probabilities of innocence or doubts, how-
ever 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 ambiguous.^"® 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 occasions, should not prevent a verdict of guilty,"
though to be condemned as beijig meaningless and tending
to confusion, will not constitute prejudicial error. ^^^ So,
where a paragraph of a charge fully and explicitly stated the
degree of proof required to convict, and the following para-
graphs failed to instruct that the jury find beyond a reason-
able 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.^^^ An in-
struction requiring "the jury to find the issues on the evi-
dence introduced by the state" will not be ground for reversal
where the remaining instructions require the jury to find de-
fendant guilty upon the evidence beyond a reasonable doubt,
and to acquit if, on the whole evidence, they have a reason-
able doubt of his guilt.^^^ So, an instruction as to the de-
grees 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 of-
209 People V. Lee Sare Bo, 72 Cal. 623. See, also. People v. Kern-
aghan, 72 Cal. 609.
210 People V. Chun Heong, 86 Cal. 329.
211 State V. Rainsbarger. 79 Iowa, 745; Stelner v. People, 187 III.
244.
212 state V. Jackson, 99 Mo. 60.
(GS8)
Ch. 28] ON REASONABLE DOUBT. § 3j9
fense only, is not prejudicially erroneous, 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.^^* An instruction
that, in order to find the defendant guilty of negligent homi-
cide, the jury must believe, beyond a reasonable doubt, the
facts on which this defense is based, is not error, where the
court elsewhere gave a charge on reasonable doubt in con-
nection with negligent homicide.^^* Where the court char-
ges that "it devolves upon the prosecution to establish the
guilt of the defendant to your satisfaction, beyond a rea-
sonable doubt, before you are authorized to find a verdict
against him," and that "all persons charged with a criminal
offense are presumed to be innocent until the jury are sat-
isfied 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 of-
fense charged, and that he committed it in the nighttime,
— that is, between sunset of one day and sunrise of the next,
— ^you should find him guilty of burglary in the first degree,"
is not erroneous on the ground that it omits the words "be-
yond 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.^^° So,
where the instructions repeatedly stated that the defendant
must be acquitted if the jury had a reasonable doubt as to
213 People V. Ah Gee Yung, 86 Gal. 144.
S14 Spears v. State (Tex. Cr. App.) 56 S. W. 347.
215 People V. Flynn, 73 Gal. 511. See, also, Steiner v. People, 187
111. 244.
(689)
44. — Ins. to Juries.
J 311 INSTRUCTIONS TO JURIES. [Ch, 28
his guilt, or of a single fact necessary to establish his guilt,
it was uot reversible error to charge that^ the jury must be
"satisfied" of the truth of a certain fact presented in de-
fense. ^■'^ 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.^^''
i 310. Eeasonable doubt in civil cases.
In civil cases, the doctrine of reasonable doubt usually
has no application. The verdict must be given in favor of
the party whose cause of action or defense is sustained by
the preponderance of the evidence. While there are a few
cases holding that, where the proof of a crime is involved in
a civil action, its existence must be proved beyond a reason-
able doubt, the great majority of courts refuse to recognize
any difference between this and any other class of civil ac-
tions. It is therefore erroneous, in a civil case, to charge
that the plaintiff must make out his case beyond a reason-
able doubt, and proper to refuse such instruction.^^* It
has been held that 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 objec-
tionable as conveying an impression that fraud must be
proved beyond a reasonable doubt.^^'
§ 311. Miscellaneous eases.
The instructions given upon reasonable doubt must, of
216 People V. Fla.nnelly, 128 Cal. 83.
21? State v. Taylor, 57 S. C. 483.
218 Seymour v. Bailey, 76 Ga. 338 ; Reeves v. Graffling, 67 Ga. 514.
219 Wallace v. Mattice, 118 Ind. 59; Stevens v. Stevens, 127 Ind.
560.
Ch. 28] ON REASONABLE DOUBT. § 3II
course, not he misleading. This is a common fault, and,
upon this ground, the refusal of many requests has been sus-
tained, and, upon the other hand, it has been the cause of
many reversals.^^" An instruction that "a reasonable doubt
may exist, although the evidence reasonably satisfies the jury
that the defendant is guilty," is argumentative and mislead-
ijjg_22i j^ ^^g pjopgj. ^Q refuse an instruction "that, upon the
trial of a criminal case, if a reasonable doubt of any fact nec-
essary to convict the prisoner is raised in the mind of the
jury by the evidence itself, or by the ingenuity of the coun-
sel, upon any hypothesis consistent therewith, that doubt is
decisive of the prisoner's acquittal. "^^^ Instructions that "a
reasonable doubt is a doubt growing out of the evidence, for
which a reason may be given," and "a reasonable doubt is
such a doubt, growing out of the evidence, as would occur to
the mind of a reasonable man," are calculated to confuse and
mislead, as to give a reason for the existence of a mental con-
dition is to state why it exists, and, in that sense, a reason
may be given for any degree of doubt ; and a reason is never-
theless a reason, though it be based upon mere conjecture, or
on matters disconnected from the evidence, and improper to
be considered by the jury.^^^ A charge which instructs the
jury "that, unless you believe from the evidence, beyond a
reasonable doubt, that the defendant killed the deceased with
malice aforethought, and under a formed design, you cannot
convict the defendant of murder in either degree," is prop-
erly refused, as misleading the jury to believe that pre-
meditation was a necessary ingredient of murder in the sec-
ond degree, whereas malice which may arise on the instant,
220 People V. Smith, 162 N. T. 520; Wilson v. State (Ala.) 29 So.
569; Horton v. Com. (Va.) 38 S. E. 184; Avery v. State, 124 Ala. 20.
221 Brown v. State (Ala.) 29 So. 200.
222 Horton v. Com. (Va.) 38 S. E. 184.
223 Avery v. State, 124 Ala. 20, 27 So. 505.
(691)
§ 311 INSTRUCTIONS TO JURIES. [Ch. 28
and "without deliberation, when concurring with an intention
to kill, may constitute that offense.^^* An instruction "to
take this case, bring your intelligence to the consideration
of it, and let your common sense and your best judgment con-
■ trol you in its determination," is not objectionable on the
ground that it gives the impression to the jury that they
might disregard the instructions as to the law. The fair
meaning of this language was simply that the jury, having
the evidence and the instruction of the court as to the law
before them, should exercise their best judgment in coming
to a conclusion.^^^ Where the court charges that "defend-
ant in a criminal case is presumed to be innocent until his
guilt is established by competent evidence beyond a reason-
able doubt, and, if you have a reasonable doubt as to his
guilt, you will give him the benefit of such doubt," the jury
cannot be misled by the omission of the word "doubt" after
"reasonable."^^® An instruction which contains the clause,
"after considering all the evidence, the jury have a reason-
able doubt as to the defendant's guilt of manslaughter, aris-"
ing out of any part of the evidence, then you should find the
defendant not guilty of any offense," is properly refused,
as by the oinission of the word "if," or its equivalent, what
is apparently intended to state the hypothesis as to reason-
able doubt is converted into an improper assertion that "the
jury have a reasonable doubt," etc.^^^ The following charge
has been approved: "If, upon the entire case, you have a
reasonable doubt of defendant being proven guilty, or as to
any fact necessary to establish his guilt, you should acquit
him; or, if you have such doubt as to the degree of the of-
224 Wilson V. State (Ala.) 29 So. 569.
220 People 7. Kelly, 132 Gal. 430.
220 Toler v. State (Tex. Cr. App.) 56 S. W. 917.
227 Wilson V. State (Ala.) 29 So. 569.
(692)
,h. 281 ON REASONABLE DOUBT. i~3Tl
fense, you will find him guilty of manslaughter only."^^*
An instruction that, "in case of a reasonable doubt, whether
defendant's guilt is satisfactorily shown, he is entitled to
an acquittal," is not erroneous. ^^® Where the court stated
to the jury, clearly and specifically, each fact essential to
be proven by the state; that, unless the jury believed from
the evidence, beyond a reasonable doubt, each of such facts,
they must acquit the defendant ; that nothing was to be pre-
sumed or taken by implication against the defendant; that
the law presumed him innocent of the crime charged until
he was proven guilty, beyond a reasonable doubt, by compe-
tent evidence ; that, if the evidence in the case left upon the
minds of the jury any reasonable doubt of defendant's guilt,
the law made it their duty to acquit him; that the jury
must determine the question of his guilt from all the evi-
dence in the case; that unless the jury could say, after a
careful consideration of all the evidence in the case, that
every essential fact was proved beyond a reasonable doubt,
they should find a verdict of not guilty, — the jury was fully
informed as to their duties and province in respect to mat-
ters of fact, and it was proper to refuse an instruction that
"the jury are the sole judges of the facts, and every fact es-
sential to the proof of the offense alleged."^^" A charge
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 constitute the defendant's guilt, then they must
find him not guilty," is properly refused.^^^ An instruc-
tion, "If there is no evidence to support any of the counts,
228 Clark V. Com. (Ky.) 63 S. W. 740, wherein the court said that
this instruction should have been given instead of the one which
was given, which the court pronounced unintelligible.
228 People V. Wynn, 133 Cal. 72.
280 State V. Simas, 25 Nev. 432.
331 Bodine v. State (Ala.) 29 So. 926.
(693)
^ "311 ■ INSTRUCTIONS TO JURIES. [Ch. 28
then yoTi should acquit," is erroneous, since one cannot be
convicted simply because there is evidence to support some
of the counts.^^^ An instruction that, "if one set or chain
of circumstances leads to two opposing conclusions, one or
the other of such conclusions must be wrong, and therefore,
in such a case, if you have a reasonable doubt as to which of
said conclusions the chain of circumstances leads, a reason-
able doubt would thereby be created, and you should give the
defendant the benefit of such doubt and acquit him," is
properly refused, as both of these "opposing conclusions
might lead to defendant's guilt."^^*
232 state V. Tulip, 9 Kan. App. 454, 60 Pao. 659.
233 People V. Clarke, 130 Cal. 642.
(694)^
CHAPTER XXIX.
CAUTIONARY INSTRUCTIONS ON CIRCUMSTANTIAL
EVIDENCE.
312. When Necessary or Proper.
313. Instructing that Circumstantial Evidence must be Equal to
Testimony of One Eye-witness.
814. Instructing that Proof must be Inconsistent with Any Other
Reasonable Conclusion than that of Guilt.
815. Instructing that Circumstantial Evidence must Exclude to
a Moral Certainty Every Hypothesis but that of Guilt.
316. Instructing that Circumstantial Evidence must Exclude Ev-
ery "Possible" Hypothesis Except that of Guilt.
317. Instructing that Circumstances must be Absolutely Incom-
patible with Innocence.
318. Instructing that Circumstantial Evidence should Produce
Nearly the Same Degree of Certainty as Direct Evidence.
319. Instructing that Bach Link in the Chain of Circumstantial
Evidence must be Proved Beyond Reasonable Doubt — In-
struction Approved.
320. Same — Contrary View.
321. Instructing that Jury Need not be Satisfied Beyond a Rea-
sonable Doubt of Each Link.
322. Instructing that Circumstantial Evidence Alone may War-
rant Conviction
323. Instructions Disparaging Circumstantial Evidence.
324. Miscellaneous Instructions on Circumstantial Evidence.
{ 312. When necessary or proper.
Where circumstantial evidence alone is relied on for con-
viction, instructions as to the law governing this class of
evidence should be given to the jury. In jurisdictions where
the statutes require the trial court to give to the jury all the
law applicable to a case, whether requested or not, the court
is bound to instruct the jury on the' law of circumstantial
(095)
I 312 INSTRUCTIONS TO JURIES. [th 29
evidence, both when, a request for such instruction is made
and v.'hen there is no request. The omission and the refusal
to give such instructions are equally erroneous/ and are gen-
erally a ground for reversal f and in one state no objection
or exception is necessary to save the error for review.^ So,
if a request for an instruction on circumstantial evidence is
made, the court is bound to instruct on the subject, though
the requested instruction is erroneous.* The omission to
charge on the nature and conclusiveness of circumstantial
evidence is not cured by the giving of an instruction on rea-
sonable doubt." But in one case it was held that, although
1 Struckman v. State, 7 Tex. App. 581; Hunt v. State, 7 Tex. App.
212; Polanka v. State, 33 Tex. Cr. App. 634; McCamant v. State
(Tex. Cr. App.) 37 S. W. 437; Robertson v. State (Tex. Cr. App.)
26 S. W. 728; Lopez v. State (Tex. Cr. App.) 40 S. W. 595; Alder-
man v. State (Tex. Cr. App.) 23 S. W. 685; Montgomery v. State
(Tex. Cr. App.) 20 S. W. 926; Scott v. State (Tex. Cr. App.) 23 S.
W. 685; Smith v. State, 28 Tex. App. 309; Navarrow v. State (Tex.
App.) 17 S. W. 545; Daniels v. State (Tex. App.) 14 S. W. 395;
Deaton v. State (Tex. App.) 13 S. W. 1009; Green v. State (Tex.
Cr. App.) 34 S. W. 283; Poston v. State (Tex. Cr. App.) 35 S. W.
656; Martin v. State, 32 Tex. Cr. App. 441; Crowley v. State, 26 Tex.
App. 578; Crowell v. State, 24 Tex. App. 404; Boyd v. State, 24
Tex. App. 570; Wlllard v. State, 26 Tex. App. 126; CMIders v. State,
37 Tex. Cr. App. 392; Scott v. State (Tex. App.) 12 S. W. 504; State
V. Moxley, 102 Mo. 374; State v. Donnelly, 130 Mo. 642; Hamilton
V. State, 96 Ga. 301; People v. Scott, 10 Utah, 217; United States
Exp. Co. V. Jenkins, 64 Wis. 542.
2Willard v. State, 26 Tex. App. 126; Crowley v. State, 26 Tex.
App. 578; Montgomery v. State (Tex. Cr. App.) 20 S. W. 926; Pos-
ton V. State (Tex. Cr. App.) 35 S. W. 656; Deaton v. State (Tex.
App.) 13 S. W. 1009; Navarrow v. State (Tex. App.) 17 S. W. 545;
Scott V. State (Tex. Cr. App.) 23 S. W. 685; Polanka v. State, 33
Tex. Cr. App. 634; Hanks v. State (Tex. Cr. App.) 56 S. W. 922.
s Polanka v. State, 33 Tex. Cr. App. 634; Montgomery v. State
(Tex. Cr. App.) 20 S. W. 926.
* People V. Scott, 10 Utali, 217.
» Sti-ockman v. State, 7 Tex. App. 581; Hamilton v. State, 96 Qa.
301.
(696)
Jh. 29j ON <3IRCUMSTANTIAL EVIDENCE. g 312
the court failed to charge specially as to circumstantial evi-
dence, this was not ground for new trial, when the court did
very fully and liberally to defendant instruct as to reason-
able doubt, and the amount and character of testimony nec-
essary to a conviction.' 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 com-
mission of the alleged crime, the jury were satisfied of de-
fendant's guilt beyond a reasonable doubt, they should re-
turn a verdict accordingly, sufficiently expressed the rule that
circumstantial evidence must exclude every reasonable hy-
pothesis except that of guilt, in order to justify a convic-
tion.'' 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 evi-
dence is erroneous, where this is the only evidence in the
ease on which to base a conviction.* But where the court,
at the instance of the state, instructs the jury as to the
right to convict upon circumstantial evidence, and there-
after gives all the instructions asked by the defendant in
respect to such evidence, the latter has no cause of com-
plaint that the first instructions failed to give any rules for
weighing and determining the effect of circumstantial tes-
timony, or to suggest the need of extra caution respecting
such testimony.® Instructions on the weight and effect of
8 Barrow v. State, 80 Ga. 191.
7 Tatum V. State (Neb.) 85 N. W. 40.
8 Territory v. Lermo, 8 N. M. 566; Wantland v. State, 145 Ind. 38.
Compare State v. Roe, 12 Vt. 93, where it was held that, as to cir-
cumstantial evidence, it rests in the discretion of the -trial judge
to what extent he will go in laying down to the jury the approved
rules for weighing such evidence. In this case the trial court re-
fused an instruction on the subject.
» State V. Ingram, 16 Kan. 14.
(697)
§ -312 INSTRUCTIONS TO JUKIBH. [Ch. 29
circT\mstantial evidence should not be given, where proof of
guilt is not dependent upon circumstantial evidence, but
rests on direct and positive testimony.^" It is not error to
omit to give the jury a charge explaining the rules govern-
ing in cases of circumstantial evidence, where the evidence
relied upon for a conviction is wholly circumstantial/* 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.*^ No instruc-
tion on circumstantial evidence is necessary when defendant
confesses his guilt.-'* Proof of confessions by defendant
10 Purvis v. State, 71 Miss. 706; State v. Pairlaab, 121 Mo. 137;
Ellis V. State, 33 Tex. Cr. App. 86; Clore v. State, 26 Tex. App. 624;
Leeper v. State, 29 Tex. App. 154; Conners v. State, 31 Tex. Cr. App.
453; Rodgers v. State, 36 Tex. Cr. App. 563; CampbeU v. State, 35
Tex. Cr. App. 160; Moore v. State, 97 Ga. 759; Granado v. State,
37 Tex. Cr. App. 426; Evans v. State (Tex. Cr. App.) 31 S. W. 648;
White V. State, 32 -Tex. Cr. App. 625; Blanton v. State (Tex. Cr.
App.) 26 S. W. 624; Vaughan v. State, 57 Ark. 1; Colter v. State,
37 Tex. 284.
11 Jones V. State, 23 Tex. App. 501; Stone v. State, 22 Tex. App.
185; Coleman v. State, 87 Ala. 14; Rains v. State, 88 Ala. 91; Weath-
ersby v. State, 29 Tex. App. 278; Dunn v. State (Tex. Cr. App.)
63 S. W. 571. See, also, Beason v. State (Tex. Cr. App.) 63 S. W.
633. Contra, see State v. Andrews, 62 Kan. 207, wherein it was
held error to refuse an instruction on circumstantial evidence,
where the evidence of defendant's guilt was partly circumstantial.
12 Cotton v. State, 87 Ala. 75; Rains v. State, 88 Ala. 91; Upcliurch
v. State (Tex. Cr. App.) 39 S. W. 371; State v. Donnelly, 130 Mo.
642; Weathersby v. State, 29 Tex. App. 278; Wilson v. State (Ala.)
29 So. 569; People v. Lem Deo, 132 Cal. 199; Thomas v. State (Tex.
Cr. App.) 62 S. W. 919.
18 Albritfon v. State (Tex. Cr. App.) 26 S. W. 398; Jackson v. State
(Tex. Cr. App.) 62 S. W. 914. Where the record in a prosecution
for murder shows that defendant made a confession admitting
his presence and participation in the death of deceased, but claimed
(698)
Cb. 29] ON CIRCUMSTANTIAL EVIDENCE. t? 312
obviates the necessity of stating the law applicable to cir-
cumstantial evidence/* even though such proof is made by
the testimony of an accomplice/^ unless the evidence shows
him utterly unworthy of belief, and his testimony is the
only positive evidence given.^® 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.'^ So, instructions aS' to the weight
of circumstantial evidence are properly refused when de-
fendant's guilt is testified to positively by eye-witnesses,'*
and it makes no difference that such witness is the prose-
cuting witness in the case,'^ or an accomplice in the commis-
sion of the crime charged.^" Where the only issue was
whether the stolen property belonged to the prosecutor, and
ho testified that it did, a failure to charge on circumstantial
evidence is not error.^' But though the court may -not be
that he participated because coerced to do so, the case is taken
out of the realm of circumstantial evidence, and it is consequently
not error for the court to fail to charge thereon.
"White V. State, 32 Tex. Cr. App. 625; Langdon v. People, 133
111. 382; State v. Robinson, 117 Mo. 649; Carr v State, 24 Tex. App.
562; Perry v. State, 110 Ga. 234; Ricks v. State (Tex. Cr. App.)
56 S. W. 928.
15 Wampler v. State, 28 Tex. App. 352 ; Vaughan v. State, 57 Ark. 1.
16 State V. Donnelly, 130 Mo. 642.
17 Green v. State, '97 Ala. 59.
18 Purvis V. State, 71 Miss. 706; Campbeir v. State (Tex. Cr.
App.) 38 S. W. 171; Thompson v. State, 33 Tex. Cr. App. 217; Jones
V. State, 31 Tex. Cr. App. 177; Evans v. State (Tex. Cr. App.) 31
S. W. 648; Gibbs v. State (Tex. Cr. App.) 20 S. W. 919; Adams v.
State, 34 Tex. Cr. App. 470.
19 Evans v. State (Tex. Cr. App.) 31 S. W. 648. See, also. Gran-
ado V. State, 37 Tex. Cr. App. 426; Gann v. State (Tex. Cr. App.)
59 S. W. 896.
20 Thompson v. State, 33 Tex. Cr. App. 217. See, also, Thomas
21 Gann v. State (Tex. Cr. App.) 59 S. W. 896.
V. State (Tex. Cr. App.) 62 S. W. 919.
(699)
g 313 INSTRUCTIONS TO JURIES. [Ch. 29
compelled to charge on circumstaiitial evidence, where there
is direct evidence of guilt, it is proper to do so where the
evidence in the case was largely circumstantial.*^
i 313. Instructing that circumstantial evidence must be equal
to testimony of one eye-witness.
According to one text writer (Mr. Starkie) : "In no case,
as it seems, ought the force of circumstantial evidence, suffi-
cient to warrant conviction, be inferior to that which is d&
rived from the testimony of a single witness, the lowest de-
gree of direct cvidence."^^ In a number of decisions, ths
correctness of this rule is denied; it being held that tha
test of the sufficiency of circumstantial evidence to warrant
a conviction in a criminal case is not whether it produces
as full a conviction as would be produced by the positive
testimony of an eye-witness, but whether it satisfies the
mind of the jury of the defendant's guilt, to the exclusion
of every reasonable doubt.** Whether considered correct
as a rule of evidence or not, the courts are all agreed that it
should not be given to the jury in the shape of an instruc-
tion, and, though often requested, the trial courts have
invariably refused to give instructions which in eifect state
the rule given by Mr. Starkie, and such refusal has invaria-
bly been sustained on appeal.*^ Thus, the refusal of the fol-
lowing instructions has been held proper : "Before the jury
22 Rountree v. State (Tex. Cr. App.) 58 S. W. 106.
23 Starkie, Ev. p. 578.
24 Banks v. Slate, 72 Ala. 522; Thornton v. State, 113 Ala. 43;
Poulk V. State, 52 Ala. 415.
26 Bland v. State, 75 Ala. 574; Mickle v. State, 27 Ala. 20; Banks
V. State, 72 Ala. 522; Thornton v. State, 113 Ala. 43; Cicely v. State,
13 Smedes & M. (Miss.) 202; Jane v. Com., 2 Mete. (Ky.) 30; 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; Rea v. State,
8 Lea (Tenn.) 363.
(TOO)
Ch. 29] ON CIRCUMSTANTIAL EVIDENCE. § 313
can convict the defendants, they miust 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."^* That, to au-
thorize conviction, "circumstantial evidence should be just
as clear and convincing as where the facts are testified to by
eye-witnesses.'"'^ That "the strength of circumstantial evi-
dence must be equal to the strength of one credible eye-wit-
ness."'"'* On the other hand, it has been held proper, to in-
struct "that, where the evidence 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.'"'* In com-
menting on this (Starkie's) rule, it was said in a well-rea-
soned case: "Under the ojJeration of this rule, the juror
would be compelled to act, not upon the direct effect which
the evidence 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 evidence offered in support
of the prosecution had excluded from his mind all reasonable
doubt; he would be forced to go further, and to institute a
comparison between the degree of conviction produced by
the evidence and that which would be the result of the tes-
timony 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 conviction or require an
28 Banks v. State, 72 Ala. 522.
»7 Thornton v. State, 113 Ala. 43.
s8 State V. Carson, 115 N. C. 743.
2B state V. Slingerland, 19 Nev. 135 , People ▼. Cronln, 34 Cal.
202- People v. Daniels (C-a.i.) 34 Pac. 233.
(701)
§ 314 INSTRUCTIONS TO JURIES. [Ch. 25
acquittal. We have daily experience that the same evident*,
in judicial proceedings, does not invariably produce the same
degree of conviction in different minds. Hence vfe may well
conclude 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 ap-
plication 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 probability, would be, on the one hand, to lead to con-
victions in cases where, by the use of the more intelligible
and safe rule, acquittals would follow; and, on the other,
to produce acquittals, where, by the same test, the parties'
would merit conviction."^" So, in another case, the review-
ing court, in sustaining the refusal of such an instruction,
gave the following 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 unnec-
essary. If it means more, it would require a certainty which
would exclude circumstantial evidence altogether; and the
danger is that, to many minds, it would appear to fairly im-
ply the higher degree of certainty."^^
i 314. Instructing that proof must be inconsistent with any
other ];easonable conclusion than that of guilt.
Mr. Greenleaf says that, "where a criminal charge is to be
proved by circumstantial evidence, the proof ought to be not
only consistent with the prisoner's guilt, but inconsistent
with every other rational conclusion. "^^ And in a well-con-
sidered Indiana decision it is said : "The true test by which
30 cicely V. State, 13 Smedes & M. (Miss.) 211, 212.
31 Rea V. State, 8 Lea (Tenn.) 363
32 1 Greenleaf, Bv. § 34.
(702)
Ch. 29] ON CIRCUMSTANTIAL EVIDENCa § 3l^
to determine the value of circumstantial evidence, in respect
to its sufficiency to warrant a conviction 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 conclusive a character, and point so
surely and unerringly to the guilt of the accused, as to ex-
clude every reasonable hypothesis of his innocence. The
force of circumstantial evidence being exclusive in its char-
acter, the mere coincidence of a given number of circum-
stances with the hypothesis of giiilt, or that they would ac-
count for, or concur with, or render probable the guilt of
the accused, is not a reliable or admissible 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 hypothesis 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 conclusion."'* Instructions stating the sub-
stance of this rule are very frequently given to the jury
where circumstantial evidence is relied on for a conviction.
Thus, 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 giiilt,'* and
a failure to give this instruction is held to be reversible er-
as Cavender V. State, 126 Ind. 48; Stout v. State, 90 Ind. 1; Binns
V. State, 66 Ind. 428; Sumner v. State, 5 Blackf. (Ind.) 579.
siSmiUh V. State, 35 Tex. Cr. App. 618; Hunt v. State, 7 Tex.
App. 212; Smith v. State, 7 Tex. App. 382; Jones v. State, 34 Tex.
Cr. App. 490; Harris v. State, 34 Tex. Cr. App. 494.
(T03)
314 INSTRUCTIONS TO JURIES. [Ch. 29
ror.^^ So, whether the court is or is not required .,o lu
struct on its own motion on all the law applicable to a case,
the refusal to give an instruction to this effect, when re-
quested, is erroneous, where circumstantial evidence alone
is relied on.^® 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 rea-
sonable doubt is not sufficient.^ ^ But in one case it was held
not 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.^* And in an-
other it was held not error to refuse an instruction "that, be-
fore the defendant could be convicted on circumstantial evi-
dence, 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 re-
garded by the jury in all cases, and is many times quite as
conclusive in its convincing power as direct and positive evi-
dence of eye-witnesses. When it is strong and satisfactory,
the jury should so consider it, neither enlarging 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 can-'
didly 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 evi-
35 Harris v. State, 34 Tex. Cr. App. 494.
aeWantland v. State, 145 Ind. 38; KoUock v. State, 88 Wis. 663;
People V. Dick, 32 Cal. 216. See, also, Tatum v. State (Neb.) 85
N. W. 40; State v. Andrews (Kan.) 61 Pac. 808.
37 Hunt V. State, 7 Tex. App. 212; Smith v. State, 7 Tex. App. 382.
ss Jones v. State, 61 Ark. 88. See, also. Tatum v. State (Neb.)
85 N. W. 40.
(704)
Ch. 29] ON CIRCUMSTANTIAL EVIDENCE. § 314,
deuce, but you are to make those just and reasonable infer-
ences from circumstances proven which the guarded judg-
ment of a reasonable man would ordinarily 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."^® The following charges £ave been held proper on
this head: That, to justify a conviction upon circumstan-
tial 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."*" That, "when a conviction is sought
alone upon circumstantial testimony, the circumstances,
taken together, must be such as to be incapable of explana-
tion upon any other rational hypothesis but that of defend-
ant's guilt."*^ That the jury must "find the guilt df de-
fendant beyond a reasonable doubt, and that the facts and
circumstances tending to prove his guilt were not only con-
sistent 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."*^
"That the testimony must not only be consistent with the
guilt of the defendants, but inconsistent with any other rea-
»» State V. Seymour, 94 Iowa, 699.
io Hunt V. State, 7 Tex. App. 212 ; Smith v. State, 7 Tex. App. 382.
*i Crutchfield v. State, 7 Tex. App. 65; Irvin v. State, 7 Tex. App.
109.
42 State v. David, 131 Mo. 380. Compare State v. Taylor, 111 Mo.
538, where the following instruction, "Before you can convict on
circumstantial evidence. It must be of such character and weight
as to exclude all reasonable hypothesis of defendant's innocence,"
was held bad, as being too meager, and as failing, too, to state the
rule in such a way as to make it a safe guide for the jury.
(705)
45. — Ins. to Juries.
§ 314 INSTRUCTIONS TO JURIES. [Ch. 29,
sonable supposition."** That "the circumstances must be
proved to year entire satisfaction, and, when the circum-
stances are established, they must point conclusively to the
person charged, and must be inconsistent with any other
reasonable hypothesis."** That, to warrant a conviction,
"each fact necessary to establish guilt of the accused must
be proved by competent evidence beyond a reasonable
doubt, and the facts and circumstances proved should not
only be consistent with guilt of the accused, but inconsist-
ent with any other reasonable hypothesis or conclusion than
that of guilt, and producing in your minds a reasonable
and moral certainty that the accused committed the of-
fense."^® That, to authorize conviction on circumstantial
evidence, "each of the circumstances should not only be con-
sistent with the defendant's guilt, but they must be incon-
sistent with any other rational conclusion or reasonable hy-
pothesis, and such as to leave no reasonable doubt. "*'^ 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 ease
it is not sufficient that the circumstances coincided with,
accounted for, and therefore rendered probable, the guilt of
defendant. They must exclude to a moral certainty every
other reasonable hypothesis," — is not error.** It will be no-
*3 state V. Davenport, 38 S. C. 348, in which the reviewing court
said that, while this was a slight departure from the words gen-
erally used, it was not error.
** State V. Milling, 35 S. C. 16,
«6 Baldez v. State, 37 Tex. Cr. App. 413.
48Chitister v. State, 33 Tex. Cr. App. 635.
*^ State V. Asbell, 57 Kan. 398.
48 Gonzales v. State (Tex. Cr. App.) 57 S. W. 667.
(706)
Ch.'29] ON CIRCUMST4.NTIAI. EVIDENCE. § 314
tioed that in all ttee iBStPwtioBS the W0^4 "reasonably" or
"rational" is mmi to j|u^li|y the wop4 '^epflelijsioii" or "hy-
pothesis." While there are a few decisions in which instruc-
tions omitting these words have been approved,*® there are
others in which a refusal of requested instpuotions hs-s been
upheld, because these words were omitted from the instrue-
tions.^" 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,"^^ An instriie-
tion that "the humane provision of the law is that a eon-
viction should not be had en circumstantial evidence, unless
it excludes to a moral certainty every reasonable hypothesis
but that of the defendant's guilt," has been held propeply
refused on account of the word "humane," which was thought
to render the instruction argumentative.^^ So it has be^n
held improper to instruct the jury to convict if the faejts and
circumstances cannot be reasonably accounted for by any
other reasonable hypothesis than that of defejtui^nt's guilt.
In condemning this instruction, the court said: "If this
were the law, the more mysterious and obscure the crime,
the more difficult it would be for one envipojaed by suspi-
cious but inconclusive circumstances, 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."**
« Black V. State, 1 Tex. App. 368; Riley v. State, 88 Ala. 188;
Mose V. State, 36 Ala. 212; Gpleman v. State, 59 .41a. 52,
60 Crawford v. State, 112 Ala. 1; People t. Strong, 30 C^. 151.
See, also. State v. Glass, 5 Or. 81.
61 Crawford v. State, 112 Ala. L
62 Dennis v. State, 112 Ala. 64.
03 Webb V. State, 73 Miss. 456.
(707)
g 316 INSTRUCTIONS TO JURIES. [Ch. 29
§ 315. Instructing that circumstantial evidence must exclude
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 circumstantial
evidence, the evidence should be such as to exclude to a moral
certainty every hypothesis save that of guilt.®* The use of
the word "absolute" before the word "certainty" has been
held to vitiate the instruction, and to make its refusal proper,
on the ground that the word "absolute" suggests a degree of
certainty greater than moral certainty.^® An 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 re-
fused. "Absolute moral certainty excludes not only reason-
able doubt, but all doubt. It describes a fixed and uncom-
promising attitude of the mind, of which men are not capa-
ble in any of the situations of life. It means such a degree
of certainty as precludes the possibility of error or mistake,
and as presupposes the infallibility of witnesses and ju-
§ 316. Instructing that circumstantial evidence must exclude
every "possible" hypothesis except that of guilt.
An instruction which requires acquittal "unless the evi-
B*Mose V. State, 36 Ala. 211; Black v. State, 1 Tex. App. 368;
People V. Dick, 32 Cal. 214; People v. Anthony, 56 Gal. 397. See,
also, ante, c. 28, "Cautionary Instructions on Reasonable Doubt."
6s People V. Davis, 64 Cal. 440; State v. Glass, 5 Or. 73.
66 State V. Glass, 5 Or. 82.
(708)
Ch. 29] ON CIRCUMSTANTIAL EVIDENCE. § 317
dence should be such as to exclude to a moral certainty every
possible hypothesis but that of guilt," is erroneous, and prop-
erly refused. "A doubt which requires an acquittal must
be 'actual and substantial, not mere possibility or specula-
tion.' It is not a mere possible doubt, because everything
relating to human affairs, and depending upon moral evi-
dence, is open to some possible or imaginary doubt." Con-
viction resting on human testimony can never attain the cer-
tainty of mathematical demonstration, or repel all possible
doubt of its correctness. A rule so exacting would paralyze the
punitive arm of the law. In giving 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 re-
quires.'*''
§ 317. Instructing that circumstances must be absolutely in-
compatible with innocence.
The following instructions have been held erroneous and
properly refused: "That, to justify the inference of legal
guilt from circumstantial evidence, the existence of incul-
patory facts must be absolutely and to a demonstration in-
compatible with the innocence of the accused."^^ That, to
convict on circumstantial evidence, the facts and circum-
stances "must be absolutely incompatible with the innocence
of the accused."^® That, to warrant conviction on circum-
stantial evidence alone, the facts and circumstances must be
oTMose V. State, 36 Ala. 211, 231; Coleman v. State, 59 Ala. 52.
And see, generally, ante, c. 28.
68 People V. Bellamy, 109 Cal. 610.
00 Cornisli v. Territory, 3 Wyo. 95. See People v. Neufeld, 165
N. Y. 43, wherein such an instruction was given.
(709)
§ 318 INSTRUOttONS to JtfRtES. [Qh. ^9
Budi "as affe dbaoliltely inconsistent, upon any reasonable
hypothesis, With the innocence of the accnsed."'" These in-
structions 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, meta-
physical, and demonstrative cettaitity is not essential to proof
by circurfistances. It is sufficient if they produce moral cer-
tainty, to the exclusion of every feasonable doubt."*''
§ 318. Instrnctihg that oircumstafitial evidence Should pro-
duce nearly the same degree of ofertainty as direct
evidence.
According to some decisions, it is not improper to charge
the jury that, "in order to convict, the circumstantial evi-
dence should be such as to produce nearly the saaie degte6 of
certainty as that which arises from direct testimony, and to
exclude a rational probability of innocence."®^ 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 geUeral rule, circumstantial evidence, in the
nature of things, may not be st> entirely satisfactory proof
of a fact afe the positive testimony of credible eyewitnesses,
yet they must convict if they were satisfied of the guilt of
the dfefendant, to the exclusion of all rational prDbabili-
ties."^^ The reasoning is not very satisfactory. As guilt
must be established beyond a reasonable doubt in all cases,
it would seem that circumstantial evidence should be such as
to produce the saine degree of certainty as that which arises
60 Carlton v. People, 150 111. 181.
61 Carlton v. People, IBO 111. 181, 191; 1 Starkie, Ev. § 79.
62 People V. Cronin, 34 Cal. 191; State v. Nelson, 11 Nev. 334;
State f. Bryan, 19 Nev. 365.
83 People V. Cronin, 34 Cal. 191.
(710)
Ch. 2'i] ON CIRCUMSTANTIAL EVIDENCE. § 319
from direct testimony, or, in other words, the probative force
of the two kinds of evidence must be identical.
§ 319. Instructing that each link in the chain of circumstan-
tial evidence must be proved beyond reasonable doubt
— Instruction approved.
In a number of jurisdictions, the rule is laid down 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 com-
petent evidence, and by the same weight and force, of evi-
dence as if each were the main fact in issue.** The same rule
■ has been variously expressed as follows: "The several cir-
cumstances upon which the conclusion depends must be fully
established by proof. They are facts from which the main
fact is to be inferred ; and they are to be proved by competent
evidence, and by the same weight and force of evidence, as
if each one were itself the main fact in issue."*® When in-
dependent facts and circumstances are relied upon to identify
the accused as the person committing the oifense 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 independent fact or circum-
stance necessary to complete such chain or series of inde-
pendent facts, tending to establish a presiimption of guilt,
should be established to the same degree of certainty as the
main fact which these independent circumstances, taken to-
6* Harrison v. State, 6 Tex. App. 42; Brookln v. State, 26 Tex.
App. 121; Johnson v. State, 18 Tex. App. 385; Scott v. State, 19
Tex. App. 325; People v. Stewart, 75 Mich. 21; People v. Anthony,
66 Cal. 397.
«5 Com. V. Webster, 5 Cush. (Mass.) 295, 317.
(ni)
§ 319 INSTRUCTIONS TO JURIES. [Ch. 29
gether, tend to establish, — ^that is, each essential, independent
fact in the chain or series of facts relied upon to establish
the naain fact must be established to a moral certainty, or
beyond a reasonable doubt.^^ It has accordingly been held
proper to instruct that "each circumstance essential to the
conclusion of the defendant's guilt should be fully estab-
lished 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 conclu-
sion sought to be established by the prosecution has been
fully proved beyond a reasonable doubt, and to your entire
satisfaction; otherwise, you must acquit."®^ That, "when
the evidence against the defendant is made up wholly of
a chain of circumstances, and there is a reasonable doubt
as to one of the facts essential to establish guilt, it is the duty
of the jury to acquit."** That, to warrant a conviction "on
circumstantial evidence, each fact necessary to the conclu-
sion sought to be established must be proved beyond a rea-
sonable doubt."®^ So it has been held error to refuse an in-
struction that, "in order to convict the defendant upon that
class of evidence [circumstantial], you miist be satisfied, be-
yond any reasonable doubt, that each material fact or nec-
essary link in the chain has been proven; and, if you have
any reasonable doubt about any one of the necessary facts
or links constituting the chain of circumstances, then you
should acquit the defendant."^" Or to refuse an instruction
that "each fact in any chain of facts from which the defend-
ant's guilt is to be inferred must be proved by the same
weight, degree, and force of evidence as if it were the main
«8 People V. Phipps, 39 Cal. 333; People v. Ah Chung, 54 Cal. 398.
67 People V. Ah Chung, 54 Cal. 398.
88 People V. Anthony, 56 Cal. 397.
«9BTookln V. State, 26 Tex. App. 121.
70 People V. Stewart, 75 Mich. 21.
(712)
Ch. 29] ON CIRCUMSTANTIAL EVIDENCE. § 320
fact of the defendant's guilt itself. All of suck facts must
be consistent each, with all of the others, and with the de-
fendant's guilt, and all, taken together, must be so strong as
to exclude, to a moral certainty, every reasonable hypothesis
but that of the defendant's guilt."^^ 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 distinc-
tion between the circumstances proven and a necessary link
in the chain of circumstances."^^
5 320. Same — Contrary view.
In a number of jurisdictions, such instructions are con-
sidered erroneous. Thus, in one state it was held proper
in a number of decisions to refuse an instruction that, "if
there is a single link wanting in the chain of circumstantial
evidence, the jury are bound to acquit the defendant," on
the ground that it is misleading.''' In one of these decisions
the court said: "We have found no rule of law which de-
clares that circumstantial evidence necessarily consists of
links, or which prescribes any definite number of circum-
stances as necessary to the sufficiency of circumstantial
proof."''* In another state an instruction that, "as the evi-
dence in the case is wholly circumstantial, you must be sat-
isfied 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 aris-
ing from a consideration of all the evidence in the case which
warrants acquittal. This reason is about as good as can be
'1 Johnson v. State, 18 Tex. App. 385.
"People v. Willett, 105 Mich. 110.
73 Tompkins v. State, 32 Ala. 569; Wharton v. State, 73 Ala.
366; Grant t. State, 97 Ala. 35; Harvey v. State, 125 Ala. 47.
'♦Tompkins v. State, 32 Ala. 569, 573.
(713)
§ 320 INSTRUCTIONS TO JURIES. [Ch. 2
given. The weight of authority is to the effect that the rea-
sonable doubt which warrants an acquittal must arise from
the evidence considered in its entirety, and not from isolated
facts or circumstances.''^ In another jurisdiction it was
held proper to refuse an instruction that "every link of the
chain of circumstances must be so complete and consistent
with the guilt of defendant as to exclude every reasonable
hypothesis 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 persons
as the guilty parties; the defendant b'eing one of the two.
One or more of the circumstances proved might have no ref-
erence 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 jus-
tified in not considering it at all."''* 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 presumption of doubt, and the jury
should acquit, was held properly refused, as it permitted the
consideration of different facets as distinct and independent
propositions.'''' It was also properly refused because it did
not restrict the jury to the consideration of the material facts
upon Which defendant's guilt must be predicated.''* Even
in cases where the court has not been called upon to apj|rove
or condemn instructions of this character, the likening of
circumstantial evidence to a chain has been condemned.
Thus, in one case it was said : "It is incorrect to speak of
a body of circumstantial evidence as a chain, and allude to
76 State V. Hayden, 45 Iowa, 11. See. also, Smith v. State (Neb.)
85 N. W. 49.
76 Timmerman v. Territory, 3 Wash. T. 445.
77 Smith V. State (Neb.) 85 N. W. 49.
78 Smith V. State (Neb.) 85 N. W. 49.
(714)
Ch. ^9] ON cmCtTMSTANTlAt, EVIDENCE. § 320
the diffefent circumstances as the links constituting such
chain ; for a chain cannot he stronger than its weakest link,
and, if one link fails, the chain is hroken. This figure of
Speech inay perhaps be correctly applied to the -ultimate and
essential facts necessary to conviction in criminal cases, since
if one be Offiitt«d, or be not proven beyond a reasonable dombt,
an acquittal must follow. It is not true, however, that each
and every of the minor circumstances introduced to sustain
these ultimate facts must be proven with the same degree of
certainty. Some of these circumstances may fail of proof
altogether^ and .be discarded from consideration by the jury,
yet the ultimate fact to establish which they were presented
may be shown beyond a reasonable doubt. The evidence in
cases similar to the one before us has been more aptly likened
to a cable. One, two, or a half-dozen strands may part, yet
the cable still remains so strong that there is scarcely a pos-
sibility of its breaking.'"'^ "The cable metaphor * * *
illustrates the force of circumstantial evidence more clearly,
perhaps, than does the chain comparison. In the cable sim-
ile, the circumstances which tend to establish the ultimate
circumstances or facts are aptly compared with the strands
of a cable. All such evidentiary matters going to prove such
ultimate circumstances or facts need not be established be-
yond a reasonable doubt, and still each ultimate fact or cir-
cumstance must be proved beyond a reasonable doubt."®''
"Ordinarily, in a case resting in circumstances, a linked
arrangement of fact to fact is observable in a part or parts
of the evidence. But a guilty person is more commonly
hemmed in by a throng of circumstances than inclosed by
facts arranged chainwise. Release from a chain comes when
ike weakest link gives way; but escape from a crowd does
"Clare v. People, 9 ColtJ. 122.
•estate v. Gleim, 17 Mont. 17, 28, 29. Sefe, also, Rayburn v.
State (Ark.) 63 S. W. 356.
(715)
8 321 INSTRUCTIONS TO JURIES. [Ch. 29
not necessarily depend on the presence or absence of one or
another, or even, perhaps, the greatest number, of the indi-
viduals composing it. * * * The fault in the instruc-
tion lies in its tendency to lead the jury to regard all the facts
as disposed in a chain, every link in which, if such were the
case, would need to be proved beyond a reasonable doubt. "*^
S 321. Instructing that jury need not he satisfied beyond a
reasonable doubt of each link.
In one jurisdiction it was held not erroneous to give the
following instruction: "The rule requiring the jury to be
satisfied of a defendant's guilt beyond a reasonable doubt, in
order to warrant a conviction, does not require that the jury
should be satisfied, beyond a reasonable doubt, of each link
in the chain of circumstances relied upon to establish the
defendant's guilt. It is sufiicient if, taking the testimony
altogether, the jury are satisfied beyond a reasonable
doubt."*^ In other jurisdictions, the giving of instructions
the same in substance has been held reversible error, and
their refusal proper.*^ The objection to such an instruction
is that the metaphor used is liable to confuse and mislead,
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 tending to prove ultimate
facts need not be proven beyond a reasonable doubt, but this
«i Leonard v. Washington Territory, 2 "Wash. T. 397.
82 Brassier t. People, 117 111. 422, 438.
S3 Graves v. People, 18 Colo. 181; Clare v. People, 9 Colo. 122;
Marion v. State, 16 Neb. 349; Leonard v. Washington Territory,
2 Wash. T. 381; State v. Gleim, 17 Mont. 17; State v. Young, 9
N. D. 165, 82 N. W. 420.
(716)
Ch. 29] ON CIRCUMSTANTIAL EVIDENCE. § 321
the jury may not understand \Vithout explanation.*"' The
proposition which the court doubtless intended to announce
is that it was not necessary for the state to have proven, be-
yond a reasonable doubt, every circumstance on which a con-
viction 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 lan-
guage employed did not mislead the jury. The metaphor used
is inaccurate, and liable to misconstruction. *® "The jury
are quite as likely to have applied that portion of the instruc-
tion referring to the links to those facts which the law re-
quires to be established beyond a reasonable doubt to warrant
conviction as to those evidentiary matters which go to prove
such facts, and one or more of which may fail, while the ulti-
mate fact might still be sufficiently established."*' 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 circumstance 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 them-
selves be so established;" and the defendant's attorney ar-
gued : "This is a case depending on a chain of circumstan-
tial evidence. No chain is stronger than its weakest 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
8* Clare v. People, 9 Colo. 122; Marion v. State, 16 Neb. 349;
Leonard v. Washington Territory, 2 Wash. T. 397.
86 Clare v. People, 9 Colo. 122.
86 Graves v. People, 18 Colo. 181; State v. Gleirn, xl Mont. 17.
(717)
§ 322 INSTRUCTIONS TO JURIES. [Ch 39
court to charge, in order that the jury might not get an er^
roneous impression of the foree and effeet to be given cir-
cumstantial 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 con-
sequence, but when sufficiently numerous, and properly in-
tertwined with others of like kind, may make the strongest
cordage, — cordage sufficient to hold the largest ship in the
greatest storm. "®^
§ 322. Instructing that circumstantial evidence ajoue juay
warrant conviction.
There is no impropriety in instructing the jury that "they
may, from circumstantial evidence alone, find the defendant
guilty, when the facts established are inconsistent with any
other theory than that of his guilt."*® Or that, if the evi-
dence of the defendant's guilt is convincing, the jury are
bound to convict her, though there were no eyewitnesses to
the fact.**' But it is erroneous to instruct that, "when direct
evidence cannot be produced, minds will form their judg-
ments on circumstances, and act on the probabilities of the
case." The law requires the jury to be convinced of defend-
ant's guilt, and does not permit the jury to act upon evidence
insufficient to produce belief or conviction.*"*
sTRayburn v. State (Ark.) 63 S. "W. 356.
88 State V. HjU, '65 Mo. 87.
89 Com. V. Harman, 4 Pa. 269.
90 People V. O'Brien, 130 Cal. L
(718)
Ch. 29] ON CIRCUMSTANTIAL EVIDENCE. § 324.
§ 323. Instructions disparaging circumstantial evidence.
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 anxiety
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 acquit the de-
fendant"®' An instruction that defendant cannot be con-
victed upon circumstantial evidence alone in a case where
the state might have produced eyewitnesses was properly re-
fused, where the eyewitnesses were unfriendly to the state.*^
§ 324. Miscellaneous instructions on circumstantial evidence.
Where the evidence is merely circumstantial in its char-
acter, an instruction that the jury must find the defendant
■ guilty if they believe the evidence is erroneous as being an
invasion of the province of the jury.®^ In a case depending
wholly upon circumstantial evidence, 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 defend-
ant, and no other person, committed the crime, and that if
they, from the evidence or the want of evidence, could ac-
count for the facts and circumstances in evidence upon any
theory or hypothesis consistent with the innocence of accused,
then to acquit.®* So it has been held erroneous to refuse an
81 Brown v. State, 23 Tex. 195.
»2 McCandless v. State (Tex. Cr. Ap.p.) 62 S. W. 745.
»8Slms V. State, 43 Ala. 33; State v. Dixon, 104 N. C. 704.
•*Crow V. State, 33 Tex. Cr. App. 264.
(719)
§ 224 INSTRUCTIONS TO JURIES. [Ch. Z'i
instraction : "The jury must find the defendant not guilty
if the conduct of said defendant, upon a reasonable hypothe-
sis, is consistent with innocence. "^^ An instruction that cir-
cumstantial 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."^^ So, an in-
struction that "circumstantial evidence * * * 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 "claimed."^^ 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 gi^ilty agent,
is not improperly modified by charging that all these circum-
stances, or such of them as may be proved with other facts,
if any, must so concur.^® 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 rea-
sonable doubt, that the defendant is guilty, and are such as
the defendant 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. '^ In charging as to the rules
to govern in considering circumstantial evidence, the court
may direct the attention of the jury to the circumstances
95 Howard v. State,, 108 Ala. 571.
«6 Loggins V. State, 32 Tex. Cr. App. 364.
»7 Jenkins v. State, 62 Wis. 49.
88 Sutton V. Com., 85 Va. 128.
90 Wells V. State, 99 Ga. 206.
(720)
Ch, 29 ON CIRCUMSTANTIAL EVIDENCE. § 32-.
relied upon by the state, if at the same time it is left to the
jury to determine whether or not the circumstances are
shown to exist.^"" 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 cir-
cumstantial evidence are knaves or fools.-"^ The jury may
properly be instructed, where the evidence is all circumstan-
tial, that defendant's innocence must be presumed until hii
guilt is established by convincing evidence beyond a reason-
able doubt.^"^ An inaccurate statement in a charge as to
the distinction, between direct and circumstantial evidence is
not ground for reversal, where the court correctly instructa
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.^"^ An instruction on circumstantial evi-
dence 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
b© an unconditional direction to the jury to give the same
weight to circumstantial evidence as to direct evidence.*'*
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 that circumstantial evi-
dence is entitled to the same weight as direct evidence, but
that, when a defendant's guilt is established by circumstan^
tial, it is the same as if it were established by direct, evi-
100 Koerner v. State, 98 Ind. 7.
101 Hickory v. United States, 151 U. S. 303.
102 Gilmor'e v. State, 99 Ala. 154.
103 Roberts v. State, 83 Ga. 369.
101 Davis V. State, 51 Neb. 301.
(721)
46. — Ins. to Juries.
§ 324 INSTRUCTIONS TO JURIES, [Ch. 29
j
dence.^"" It has been held that an instruction that "there'
is nothing in the nature of circumstantial evidence that ren-
ders it less reliable than other classes of evidence" contains
a correct statement of the law, and is free from legal excep-j
tion.^"* So, the following instruction .has been approved:
"For the practical purposes of the trial, there is no difference
between what is called circumstantial and what is called
direct evidence." That the only question is, does the evi-
dence show defendant's guilt beyond a reasonable doubt ?^''''
An instruction, given at defendant's request: "That, to
warrant a conviction on circumstantial evidence, each fact
necessary to the conclusion sought to be established must be
proven by competent evidence beyond a reasonable doubt,
and all the facts necessary to such conclusion must be con-
sistent with each other, and with the main fact sought to be
proved; and the circumstances, taken together, must be of
a cpnelusive nature, 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 in-
conclusive character, will not justify a conviction. 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 ac-
cused, but they must exclude every other reasonable hypothe-
sis. ~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 hypothe-
i»5 Reynolds v. State, 147 Ind. 3. See, also, to same .effect, Long-
ley V. Com. (Va.) 37 S. E. 339; People v. Neufeld, 165 N. Y. 43.
loe People v. Urquidas, 96 Cal. 239; People v. Morrow, 60 Cal. 142.
10' State V. Rome, 64 Conn. 329.
(722)
Ch. 29] ON CIRCUMSTANTIAL BVIDBNCR. | 334
sis than that of guilt," — is a sufficient charge on circumstan-
tial evidence.^"* An instruction, in a criminal prosecution,
"to the effect that, in a case of circumstantial evidence, where
the criminative circumstances are either denied by the de-
fendants or are explained in such a way as to render their
guilt doubtful, it is the duty of the jury to acquit the ac-
cused," is erroneous in requiring an acquittal wherever the
accused denies such circumstances, without reference to the
credibility of the denial, and ought to be refused.*** On a
trial for homicide, an instruction that "circumstantial evi-
dence was to be regarded by the jury in all cases, and that,
when it was strong and satisfactory, the jury should so con-
sider it, neither enlarging nor belittling its iorce, and that
they should make those reasonable inferences from circum-
stances proven which the guarded judgment of a reasonable
man should ordinarily make under like circumstances," is
properly given.-' '* Where the court is prohibited from
charging the jury with respect to matters of fact, an instruc-
tion: "Though in human judicature, imperfect as it must
necessarily be, it sometimes happens that error has been com-
mitted 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 neces-
sary, but it is sometimes even more satisfactory than the tes-
timony of a single individual, who swears that he has seen
a fact committed. Even persons professing to have been
eye-witness of that to which they may testify may speak
falsely," — is reversible error, as a charge on the relative
108 Villereal v. State (Tex. Cr. App.) 61 S. W. .715.
109 Long v. State (Fla.) 28 So. 775.
"« Smith v. State (Neb.) 85 N. W. 48.
(723)
§ ZZi INSTRUCTIONS TO JURIES. ; [(Jh. 29
value of direct and circumstantial evidence.*** Where, in
a murder case, the trial court, in charging the jury upon tke
competency and meaning of circumstantial evidence, remarks
that "many, probably a majority of, convictions of crime are
had upon circumstantial evidence," such remark will not con-
stitute 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.**^
Where charges upon circumstantial evidence have once been
approved by the court of last resort, they should not there-
after be tampered with by the trial court.**'
111 People v. O'Brien, 130 Cal. 1.
112 Funk v. United States, 16 App. D. C. 478.
113 Mclver T. State (Tex. Cr. App.) 60 S. W. 50.
(724:)
CHAPTER XXX.
CAUTIONARY INSTRUCTIONS ON PRESUMPTIONS OF LAW
AND FACT.
I. INTEODUCTOET STATEMENT.
§ 325. In General.
II. PBfcSUMPTION OF INNOCENCE.
§ 326. Necessity of Giving Instructions.
327. , What Instructions Proper or Sufficient
III. Presumption that One Intends Natueai, Consequences of His
Acts.
S 328. In General.
IV. Presumption op Malice.
I 329. In General.
V. Presumption from Unexplained Possession of Recently Stolen
Property.
§ 330. View that Presumption is a Presumption of Law.
331. View that Presumption is a Presumption of Fact.
332. Same — What Instructions Proper.
333. Same — Instructing that Possession of Recently Stolen Prop-
erty Raises Presumption of Guilt.
334. Same — Instructing that Possession of Recently Stolen Prop-
erty is Strong Evidence of Guilt.
335. Same — Instructing .that Burden of Explaining Possession is
on Defendant.
336. Instructions as to Defendant's Explanation of Possession.
337. Miscellaneous Instructions. *
i''I. Presumptions as to Sanity.
§ 338. Scope of Article.
339. Presumption that All Men are Sane.
(725)
g 325 INSTRUCTIONS TO JURIES. [Ct . 30
340. Conflicting Presumption of Innocence.
341. Presumption as to Continuance of Insanity.
342. Presumption tliat Defendant is Feigning Insanity.
VII. Presumption Arising from Plight.
§ 343. In General.
I. Inteoductobx Statement.
§ 325. In general.
Where the circumstances proved are of such a character
that the law itself raises a presumption, the court may prop-
erly instruct the jury to draw such inferences.^ Presump-
tions of fact, however, should be left to the exclusive consid-
eration of the jury.^ It is not proper for the court to in-
struct the jury that a certain fact is to be presumed by them
from the proof made of another or other facts.* The court
iHerkelrath v. Stooltey, 63 111. 486; Glover's Adm'rs v. Duhle,
19 Mo. 360; Weil v. State, 52 Ala. 19; Peterson's Ex'rs v. Ellicott,
9 Md. 52; Union Mut. Life Ins. Co. v. Buchanan, 100 Ind. 81; Peo-
ple V. Carrillo, 54 Cal. 63; Heldt v. Webster, 60 Tex. 207; Oliver
V. State, 17 Ala. 687.
2 Newman v. McComas, 43 Md. 70; Dickson v. Moody, 2 Smedes
& M. (Miss.) 17; Heldt v. Webster, 60 Tex. 207; Graff v. Simmons,
58 111. 440; Graves v. Colwell, 90 111. 612; People v. Gastro, 75
Mich. 127; Sheaham v. Barry, 27 Mich. 217; Justice v. Lang, 52
N. y. 323; Stokes v. Johnson, 57 N. Y. 673; People v. Walden, 51
Cal. 588.
9 Weil V. State, 52 Ala. 19; Cox v. Knight's Adm'r, 49 Ala. 173;
Stone V. Geyser Quicksilver Min. Co., 52 Cal. 35; People v. Walden,
51 Cal. 588; People v. Carrillo, 54 Cal. 63; Beers y. Housatonuc R.
Co., 19 Conn. 570; Mayer v. Wilkins, 37 Fla. 244; Pittsburgh, Ft,
W. & C. R. Co. V. Callaghan, 157 111. 406; Ashlock v. Linder, 50 111.
169; City of Columbus v. Strassner, 138 Ind. 301; Fulwider v.
ingels, 87 Ind. 414; Cook v. Brown, 39 Me. 443; Walkup v. Pratt,
5 Har. & J. (Md.) 57; Newman v. McComas, 43 Md. 70; Wilson v.
Smith, 10 Md. 67; Peterson's Ex'rs v. Ellicott, 9 Md. 52; People
V. Gastro, 75 Mich. 127; Richards v. Fuller, 38 Mich. 653; Dickson
V. Moody, 2 Smedes & M. (Miss.) 17; Glover's Adm'rs v. Duhle,
19 Mo. 360; Omaha Fair & Exposition Ass'n v. Missouri Pac. Ry. Co.,
(726)
Ch. 30] ON PRESUMPTIONS OP LAW, ETC. § 325
must not instruct as to what inferences of fact the jury are
to draw from the evidence.* "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 de-
termining the existence or nonexistence of the fact."^ The
following cases will serve to illustrate the principle stated:
Where there is conflicting evidence as to the legality of a
sale, it is error to instruct that, if a sale is shown, it is pre-
sumed to be legal.® To instruct that an assignment is fraud-
ulent if the insolvent, previous thereto, obtained credit on
false representations as to his finances, is erroneous, since
the question of fraudulent intent is for the jury alone. '^
Upon the question of the incorporation of a company, it is
error to charge that the mere execution of a deed to the com-
pany by one party, and of a new deed in confirmation by
the devisee of that party, would not be sufficient proof of
42 Neb. 535; Gilbertson v. Forty-Second Street, M. & St. N. Ave.
R. Co., 14 Misc. Rep. (N. Y.) 527; State v. Cardwell, 44 N. C. 245;
Wenrich & Co. v. Heffner, 38 Pa. 207; Farmers' & Merchants' Bank
V. Harris, 2 Humph. (Tenn.) 311; Johnson v. State, 2 Humph.
(Tenn.) 283; Neideiser v. State, 6 Baxt. (Tenn.) 499; Claxton v.
State, 2 Humph. (Tenn.) 181; Augusta Mfg. Co. v. Vertrees, 4
Lea (Tenn.) 75; Clifford v. Lee (Tex. Civ. App.) 23 S. W. 843;
Stooksbury v. Swan, 85 Tex. 563; Hanna v. Hanna, 3 Tex. Civ.
App. 51; Reynolds v. Weinman (Tex. Civ. App.) 33 S. W. 302;
Frisby v. Withers, 61 Tex. 134; Hammond v. Coursey, 2 Posey,
Unrep. Cas. (Tex.) 29.
4 Union Mut. Life Ins. Co. v. Buchanan, 100 Ind. 63; Louisville,
N. A. & C. Ry. Co. v. Falvey, 104 Ind. 409; Coleman v. State, 111
Ind. 563; Continental Life Ins. Co. v. Yung, 113 Ind. 159; Ellis v.
Spurgin, 48 Tenn. 74.
5 Stooksbury v. Swan, 85 Tex. 563.
6 Reynolds v. Weinman (Tex. Civ. App.) 33 S. V/. 302.
I Mayer v. Wilkins, 37 Fla. 244.
(727).
g 325 INSTRUCTIONS TO JURIES. Ch. 30
user of franchises to establish the incorporation. The jury
should have been left to draw their own inference.* An
instruction that, if the engine which caused the injury com-
plained of was marked with the name of defendant's com-
pany, and also with the words, "Chicago Switching Associa-
tion," there was no presumption as to which corporation or
association had its management, is erroneous, as invading
the province of the jury, and should be refused.^ "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 de-
fendant), after their said marriage, sought the society of
prostitutes and women of bad repute for chastity, 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."*" 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
presented, 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 in-
. struction was calculated to mislead the jury, and its impera-
tive direction to the jury would be fatal, if there were no
8 Augusta Mfg. Co. V. Vertrees, 4 Lea (Tenn.) 75.
» Pittsburgh, Ft. W. & C. Ry. Co. v. Callaghan, 157 III. 406.
10 Stanley v. Montgomery, 102 Ind. 102.
(728)
Cll. 30] ON PRESUMPTIONS OF LAW, ETC. § 336
other objection.** It will be seen that this subject is inti-
mately connected with matters treated in other chapters of
this book.*^
• II. Pbesumptiow of Innocence.
§ 326. Necessity of giving instractions.
It is an elementary principle of criminal law that the ac-
cused is presumed to be innocent until his guilt has been
proven beyond a reasonable doubt. It is always error to re-
fuse to embody this principle in proper form in the charge to
the jury.** If, however, an instruction substantially em-
bodying the principle is given, the court may properly de-
cline to give any further instructions on the subject. Thus,
where the court charged : "The defendant began on his trial
with the presumption of innocence in his favor, and that pre-
sumption remains until removed by sufficient proof," — it was
not error to decline a > request that "the defendant is pre-
sumed to be innocent, and that presumption remains with
and fully protects him until it is removed by the proof."**
And it is not error to refuse an instruction that the legal pre-
sumption of innocence is to be regarded by the jury as a
matter of evidence, where they have been charged that the
11 Wilson V. Smith, 10 Md. 67.
12 See ante, c. 2, "Province of Court and Jury," and ante, c. 3,
"Invading Province of Jury."
13 CofEee v. State. 5 Tex. App. 545 ; Hutto v. State, 7 Tex. App.
44; Hampton v. State. 1 Tex. App. 652; Mace v. State, 6 Tex. App.
470; Long v. State, 23 Neb. 33; Houston v. State, 24 Pla. 356;
Long v. State (Fla.) 28 So. 775; Long v. State, 46 Ind. 583; Line
V. State, 51 Ind. 172; Castle v. State, 75 Ind. 146; Aszman v. State,
123 Ind. 347; Farley v. State, 127 Ind. 419; Salm v. State, 89 Ala.
56; Reeves v. State, 29 Fla. 527.
" Smith V. State, 63 Ga. 170.
(729)
I 326 INSTRUCTIONS TO JURIES. [Ch. 30
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.'^ 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 instructing that the absence of motive would
be a circumstance for the jury to consider. The defendant
is presumed innocent in any case.^® So, when such an in-
struction is given, the court may properly refuse an instruc-
tion that the mere returning of an indictment raises no pre-
sumption 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. ''^ An instruction that, "where there are two
presumptions, — one in favor of innocence, and the other in
favor of a criminal course, — ^the one in favor of innocence
must prevail," may be properly refused. The only presump-
tion in a criminal case is of innocence of the defendant until
guilt is established beyond a reasonable doubt, and it is suffi-
cient if the court has so charged the jury. There cannot be
two presumptions in a criminal case. The accused is pre-
sumed to be innocent until his guilt is established beyond
any reasonable doubt, and, if the court so charges, the de-
fendant cannot complain.^* Where the jury have been told
that there is a legal presumption of innocence which en-
titled the accused to an acquittal unless overcome by the evi-
dence, a refusal to repeat the idea in different language,!
lewooten v. State, 24 Fla. 335; State v. Hudspetli (Mo.) 60 S. W.
136.
16 State V. Nordstrom, 7 Wash. 513.
I'Aszman v. State, 123 Ind. 347.
18 People V. Douglass, 100 Gal. 1.
(730)
Ch. 30] ON PRESUMPTIONS OF LAW, ETC. § 326
suggested by counsel for the accused, though such language
may have more definitely impressed such idea upon the
minds of the jurors, is not reversible error. This is in ac-
cordance v?ith the general rule that, though it is advisable to
give special instructions requested on leading points in the
ease, if such instructions are more specific than the general
charge covering the same points, yet the refusal of the re-
quest will not v7ork a reversal if the general charge can be
understood by persons of ordinary comprehension.^^ But an
ins'truction that the fact that an indictment was found by
the grand jury, and the indictment itself cannot be consid-
ered, is objectionable in form, and the court should have
given in lieu thereof defendant's request for an instruction
that the indictment is a mere formal charge against defend-
ant, and is not, of itself, any evidence of defendant's guilt.^"
A charge "that defendant is presumed to be innocent until
his guilt is established by legal evidence beyond a 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 through-
out to establish every constituent element of the offense, and
never shifts from state to defendant."^^ 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."^^ Although it has been
held in one state that, if the jury is told that the defendant
must be proved guilty beyond a reasonable doubt, an instruc-
tion as to the presumption of innocence is unnecessary,^^ the
i» Murphy v. State (Wis.) 83 N. W. 1112.
20 State V. Hollingsworth, 156 Mo. 178.
siHuggins V. State (Tex. Cr. App.) 60 S. W. 52.
«2 Lewis V. State (Tex. Cr. App.) 59 S. W. 886.
»» State V. Helnze, 2 Mo. App. Rep'r, 1314.
I (731)
I 326 INSTRUCTIONS TO JURIES. [Ch. 30
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 presumption of
innocence, and that it is error to refuse a separate instruc-
tion on the latter subject.^*
There is some conflict of opinion as to whether the court
is bound to give an instruction on this presumption, in the
absence of a request. In one state it, has been said that it is
always advisable to give in charge to the jury the presump-
tion of innocence, but it was held that an omission to do -so,
when not asked, was not ground for reversal.^' In another
state it was held that, where the jury were instructed orally
by agreement, and no request was made for such an instruc-
tion, and the court's attention was not called to its omission
to charge on this subject, there was no error.^® In another
state the decisions do not seem to be entirely harmonious.
The earlier decisions hold, without qualification, that the
failure of the court to instruct the jury on the presumption
of innocence, whether requested or not, is reversible error.^'
Later decisions qualify this rule. In one of them it is said
that a conviction will not necessarily be reversed in every
case 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.^^ And in this case and others it was held, if an in-
21 Coffin V. United States, 156 U. S. 432; Cochran v. United States,
157 U. S. 286; People v. Macard, 73 Mich. 15; Vaughan v. Com.,
85 Va. 671; McMullen v. State, 5 Tex. App. 577; Black v. State, 1
Tex. App. 368.
26Hutto V. State, 7 Tex. App. 44; Prye v. State, 7 Tex. App. 94.
2« Williams v. People, 164 111. 481.
27 People V. Potter, 89 Mich. 353; People v. Murray, 72 Mich.
10; People v. De Pore, 64 Mich. 701; People v. Macard, 73 Mich. 15.
28 People V. Granely, 91 Mich. 646.
(732)
Ch. 30] ON PRESUMPTIONS OP LAW, ETC. g 327
struction on the subject of reasonable doubt was given, a
conviction would not be reversed for failure to instruct on
the presumption of innocence, in the absence of a request for
such instruction.^^ So, in one state it has been held that,
where the court omits to instruct, as required by statute, that
"defendant is presumed to be innocent until the contrary is
proved," exception must be taken to such omission before the
jury retire to consider their verdict, in order to make the
error availabler.*"
§ 327. What instructions proper or suflScient.
The following instructions on this presumption have been
approved: That "the defendant is presumed to be inno-
cent."^^ That "the accused must be presumed innocent until
his guilt is established by legal evidence."^^ That the pre-
sumption of innocence prevails throughout the trial, and that
it is the duty of the jury, if possible, to reconcile the evidence
with this presumption.^^ That "the law raises no presump-
tion against the prisoner, but every presumption of the law
is in favor of his innocence."^* That "the accused is always
presumed to be innocent until his guilt is established by com-
petent evidence beyond a reasonable doubt. "^^ That "the
law considers everybody innocent until the contrary is proven
beyond a reasonable doubt."^^ That, "in the absence of evi-
dence to the contrary, the law presumes every one innocent ;
29 People V. Ostrander, 110 Mich. 60; People v. Smith, 92 Mich.
10; People v. Granely, 91 Mich. 646.
30 Murray v. State, 26 Ind. 141.
81 Line v. State, 51 Ind. 172; Long v. State, 46 Ind. 582.
32 Mace V. State, 6 Tex. App. 470.
33 Castle V. State, 75 Ind. 146.
3* Territory v. Burgess, 8 Mont. 57.
36 Templeton v. State, 5 Tex. App. 398.
38 State V. Duck, 35 La. Ann. 764; Gallaher v. State, 28 Tex. App.
247.
(733)
I 327 INSTRUCTIONS TO JURIES. [Ch. 30
and this legal presumption of innocence is a matter of evi-
dence, to the benefit of which the party accused is entitled."^^
So, on a trial for murder, where it was admitted that defend-
ant was guilty of manslaughter, but the theory of the defense
was that he was innocent of the higher offense charged, be-
cause 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.^*
Where the court, after instructing on the presumption of in-
nocence, tells the jury that the law should be fearlessly ad-
ministered, and that they will fail in their duty if they fail
to convict on proof of defendant's guilt beyond a reasonable
doubt, there is no prejudicial error, although the latter part
of the instruction is in bad taste.^^ An instruction: "The
defendant, at the outset of this trial, is presumed to, be an
innocent man. He is not required to prove himself inno-
cent, 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. ISTow, in considering
the testimony in the case, you 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 reason-
able doubt,"- — does not tend to convey the impression that
the presumption of innocence ceases to operate at the close
87 Garrison v. State, 6 Neb. 285.
38 People V. Harper, 83 Mich. 273.
»» People V. Bowers (Cal.) 18 Pac. 660.
(734)
Ch. 30] ON PRESUMPTIONS OF LAW, ETC. § 33?
of the evidence of the prosecution, or at any time before the
jury have finally determined upon a verdict. ■*"
On the other hand, the following instructions have been
disapproved : That "the defendant, though indicted for per-
jury, is just as innocent of the crime as though not in-
dicted."*^ 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 evi-
dence, then such presumption of innocence no longer per-
tains. "^^ 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 evi-
dence with this presumption." In condemning this instruc-
tion, 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.** 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 evi-
dence of the state is to be weighed, is not erroneous, espe-
cially if followed by instructions that "it is incumbent on
you to consider the testimony without passion and without
prejudice, for the purpose of determining whether the de-
fendant is guilty or not. He is entitled to the benefit of
>
*o People V. Arlington, 131 Cal. 231.
*i Sanders v. People, 124 111. 218.
*2 Stapp V. State, 1 Tex. App. 734, In which case the court said:
"The law is that 'a defendant in a criminal cause is presumed to
be innocent until his guilt is established by legal evidence, and,
in case of reasonable doubt, • * • is entitled to be acquitted.' "
43 Barker v. Com., 90 Va. 820. Compare Castle v; State, 75 Ind.
146.
(735)
§ 327 INSTRUCTIONS TO JURIES. [(Jh. 30
any reasonable 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 of that doubt by an acquittal." Such instructions
clearly indicate that the jury are to look to the entire evi-
dence.** A request for an instruction that defendant is
presumed to be innocent until proven guilty beyond a reason-
able doubt, and that it is the duty of the jury to give the de-
fendant the benefit of this presumption and to acquit him
"unless they feel compelled to find him guilty," and unless
the evidence convicts him of guilt beyond a reasonable doubt,
is properly modified by striking out the words "unless they
feel compelled to find him guilty."*^
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 character
of the defendant should be considered by the jury, in connec-
tion with all the other evidence given on the trial, in deter-
mining 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 de-
fendant's guilt are in doubt, or that the intent of the defend-
ant 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 presump-
tion of the law is that the alleged crime is so inconsistent with
the former life and character of the defendant that he could
*i Murphy v. State, 108 Wis. 111.
46 State V. StubWefield, 157 Mo. 360.
(736)
Ch. 30] ON PRESUMPTIONS OF LAW, ETC. tj 32b
not have intended to commit such a crime, and it would be
your duty to give the defendant the benefit of that presump-
tion, and acquit him," — though it may be erroneous, since evi-
dence of good character should be considered in connection
■with the other evidence, cannot possibly harm the defendant
if all the evidence is in favor of his previous good character.*®
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."*^
III. Presumption that One Intends Natubal Consequences of
His Acts.
§ 328. In general.
It has been held proper, in a number of cases, to instruct
the jury that, where a person voluntarily and willfully does
an act, he is presumed to intend all the natural, probable,
and usual consequences of his act.*® Thus, 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.** So, when a homicide
or an assault was committed with a deadly weapon, and the
act was done willfully or intentionally, an instruction that
the defendant must he presumed to have intended to cause
death, which is the ordinary and probable consequence of
such an act, has been sustained.^" The following instruction.
has also been approved : "The law presumes that every sane
person contemplates the natural and ordinary consequences
of his own voluntary acts, until the contrary appears, and,
*6 Territory v. Burgess, 8 Mont. 57.
<7 Greenley v. State, 60 Ind. 141.
*8Com. V. Webster, 5 Gush. (Mass.) 305; State v. Shelledy, 8
Iowa, 485; People v. Langton, 67 Cal. 427.
*» Krchnavy v. State, 43 Neb. 337.
50 State V. Dickson, 78 Mo. 438; State v. Wisdom, 84 Mo. 177.
(737)
17. — Ins. to' Juries.
r, 2,23 INSTRUCTIONS TO JURIES. [Ch. 30
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 circumstances of the homicide do not
of themselves, or the evidence 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."^^ So it is not error to refuse to charge that
a knowing and willful violation of a penal statute is neces-
sary to a conviction. The prisoner is conclusively presumed
to have known of the statute he was violating.^^
There is another line of cases, however, in which a con-
trary view is taken, and it is held improper to instruct that
a person is presumed to intend the natural consequences of
his own voluntary acts. The jury is permitted to draw that
inference if it sees fit, and it is proper to tell them so, but it
is improper to tell them that they must do so.^^ Accord-
ingly, on a murder trial, a charge that "the law presumes
that a sane man intends the natural and probable conse-
quences of any act which he willfully and deliberately does"
is erroneous.^* 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 woujd ordinarily result in the commis-
sion of the forbidden act;'"*^ 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 acei-
Bi Achey v. State, 64 Ind. 59. See, also, Cotton v. State, 32 Tex.
626; Jackson v. People, 18 111. 270.
62Whltton V. State, 37 Miss. 879.
eo People v. Willett, 36 Hun (N. Y.) 500.
84 Rogers v. Com., 96 Ky. 24.
«» Black V. State, 18 Tex. App. 124,
(738)
Ch. 30 J ON PRESUMPTIONS OF LAW. ETC. § 329
dent or innocent intention."^' These decisions rest upon the
principle that the presumption declared by the statute is
overcome by the presumption of innocence and the rule as
to reasonable doubt. On a prosecution for assault with in-
tent 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 mali-
cious," and that defendant "intended to kill," is erroneous,
because it shifts the burden of proof, and ignores the recog-
nized distinction between civil and criminal cases, in the
measure of proof .^'^ Intent being an essential element of
crime, an instruction declaring that, when a crime is com-
mitted, the law presumes the intent, is absurd and meaning-
less."*
IV. Pkesumption or Maliob,
i 329. In, general.
The existence of malice is almost invariably a question of
fact, and hence a question exclusively within the province of
the jury to determine. It is therefore error for the court
to take this question from the jury by instructing, in effect,
that malice does or does not exist.'^^ Thus, in an action
for malicious prosecution, it is error to instruct that the law
presumes malice from a want of probable cause,^" though it
58 Thomas v. State, 16 Tex. App. 535; Burney v. State, 21 Tex.
App. 572.
" Ogletree v. State, 28 Ala. 693.
»« State V. Painter, 67 Mo. 84.
59 Kingsbury v. Garden; 45 N. Y. Super. Ct. 224; Thorp v. Carvalho,
14 Misc. Rep. (N. Y.) 554; Ellis v. Simonds, 168 Mass. 316; Hirsch
T. Feeney, 83 111. 548; Harpham v. Whitney, 77 111. 32; Hidy v.
Murray, 101 Iowa, 65; Moody v. Deutsch, 85 Mo. 237; Ritter v.
Ewlng, 174 Pa. 341; Stewart v. Sonneborn, 98 U. S. 189.
eoMcClafferty v. Philp, 151 Pa. 86; Malone v. Murphy, 2 Kan.
250; Frankfurter v. Bryan, 12 111. App. 549; Bishop v. Bell, 2 111.
App. 554; Smith v. King, 62 Conn. 515; Bell v. Pearcy, 27 N. C.
(739)
§ 329 INSTRUCTIONS TO JUPJES. [Ch. 30
is proper to instruct that the jury may infer malice from
want of probable cause.*^ It is, of course, error to instruct
that malice cannot be inferred by the jury from want of prob-
able cause. ^^ It is proper to instruct that malice may be
inferred from a willful, wanton, and inexcusable act.** An
instruction that a malicious intent need not be proved by
direct testimony, and that, if the jury found that the- natural
and probable resiilts of an act would be to injure or destroy
the property of another, no motive appearing from the evi-
dence, malice may be implied, if the circumstances show a
wicked, depraved, and wanton spirit, is not misleading,
especially when followed by others, treating the subject fully
and liberally.®* So it has been held proper to instruct that
"the law itself implies or presumes malice from the commis-
sion of any unlawful or cruel act, however suddenly done.
Hence, when a homicide is committed without any or with-
out considerable 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 what-
ever cause, or is the sudden rash condition of a mind inca-
pable, 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 ex-
tenuate such killing, the law, from such killing alone, will
83; Greer v. WWtfleld, 4 Lea (Tenn.) 85; Griffin v. Chubb, 7 Tex.
603; Schofield v. Ferrers, 47 Pa. 194; Gee v. Culver, 12 Or. 228.
siShaul V. Brown, 28 Iowa, 45; Bradley v. Morris, 44 N. C. 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.
82Luns£ord v. Dietrich, 93 Ala. 565.
83 State V. Enslow, 10 Iowa, 115; Mosely v. State, 28 Ga. 190;
State V. Williamson, 68 Iowa, 351.
64 People V. Keeley, 81 Cal. 210.
(740)
Ch. 30] ON PRESUMPTIONS OF LAW, ETC. § 330
imply or infer malice."^' An instruction that malice may
be inferred from the use of a deadly weapon is proper and
usual;®® but an instruction that, if certain enumerated acts
were proved, the act in question was malicious, is erro-
neous.®'' In a prosecution for malicious wounding, a refusal
to instruct that "malice cannot be inferred" is not error.®*
V. Pkesumption from Unexplained Possession op Recently Stolen
Propeety.
§ 330. View that presumption is a presumption of law.
In his work on evidence, Mr. Greenleaf makes the follow-
ing statement: "Possession of the fruits of crime recently
after its commission is prima facie evidence of guilty posses-
sion, and, if unexplained either by direct evidence, or by the
attending circumstances, or by the character and habits of
life of the possessor, or otherwise, it is taken as conclusive."®*
In accordance with this rule are a number of decisions to
the effect 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 pos-
session in a manner consistent with his innocence, or it will
become conclusive against him; that it is not a mere pre-
sumption of fact, to be T^eighed with other evidence in the
case.'^" It has been held proper, where this view prevails, to
«5Kemp V. State, 13 Tex. App. 562.
66 Jenkins v. State, 82 Ala! 25; State v. Zeibart, 40 Iowa, 173;
State V. Talbptt, 73 Mo. 351.
o'Ogletree v. State, 28 Ala. 693.
68 Walker v. Com., 7 Ky. Law Rep. 44.
«8l Greenl. Ev. § 34.
TO State v. Kelly, 73 Mo. 608; State v. Good, 132 Mo. 114; Belote
V. State, 36 Miss. 120. See, also, Unger v. State, 42 Miss. 642;
State v. Butterfleld, 75 Mo. 297; State v. Kelly, 57 Iowa, 644; United
States v. Wiggins, 14 Pet. (U. S.) 334,
(741)
§ 331 INSTRUCTIONS TO JURIES. [Ch. 30
instruct 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 pos-
session of such property in a manner consistent with his in-
nocence, this presumption becomes conclusive against him."'''
In the case in which this instruction was approved, no evi-
dence was submitted as to the good character of defendant.
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.^^ Where
the fact of the larceny is not disputed, and it appears that
the property was found in defendant's possession shortly
after its disappearance, an instruction making his posses-
sion a presumption of guilt against him, to be rebutted by
him, but not beyond a reasonable doubt, and requiring con-
viction 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.'^*
S 331. View that presumption is a presumption of fact.
The great weight of authority repudiates the conception
that the presumption, if any, arising from the unexplained
possession of recently stolen property, is a presumption of
law.''* "Any presumption that may be drawn from such
Ti State -v. Xelly, Vd xtfo. 608.
72 State v. Kennedy, 88 Mo. 341; State v. Crank, 75 Mo. 406;
State v. Sidney, 74 Mo. 390; State v. Kelly, 57 Iowa, 646.
73 state V. Good, 132 Mo. 114.
7* stover V. People, 56 N. Y. 315, UablicK v. People, 40 Mich. 293;
Engleman v. State, 2 Ind. 91, Hail v. State, 8 Ind. 439; Smith v.
State, 58 ind. ^i\), Howard v. dtiite, 50 Ind. 190; State v. Hale, 12
(742 J
Ch. 30] ON PRESUMPTIONS OF LAW, ETC. § 331
possession is a presumption of fact merely; 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."'^ 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 pos-
session. 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 de-
termined by them alone.^* "It is obvious that a party can-
not, 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 ia
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 taking and finding it in the possession
Or. 352; State v. Maloney, 27 Or. 53; Tucker v. State, 57 Ga. 503;
Parker v. State, 34 Ga. 263; Griffln v. State, 86 Ga. 257; Lehman
V. State, 18 Tex. App. 174; Lockhart v. State, 29 Tex. App. 35;
Cook V. State, 16 Lea (Tenn.) 461; Underwood v. State, 72 Ala.
220; Orr v. State, 107 Ala. 35; Robb v. State, 35 Neb. 285; Thomp-
son V. People, 4 Neb. 529;-M«Laln v. State, 18 Neb. 154; Grent-
zlnger v. State, 31 Neb. 460; State v. Merrick, 19 Me. 398; Com.
V. McGorty, 114 Mass. 299; Brooke v. People, 23 Colo. 375; State
V. Hodge, 50 N. H. 510; Baker v. State, 80 Wis. 416; People v.
Ah Ki, 20 Cal. 178; People v. Noregea, 48 Cal. 123; Malachl v. State,
89 Ala. 134.
7s state v. Walters, 7 Wash. 251; Smith v. State, 58 Ind. 340;
State V. Hodge, 50 N. H. 510; Graves v. State, 12 Wis. 591; Ingalls
V. State, 48 Wis. 656; State v. Snell, 46 Wis. 524; Bishop, Cr. Proc.
§ 745; Whart. Cr. Bv. § 758.
'6 State V. Walters, 7 Wash. 251; People v. Chambers, 18 Cal.
383; People v. Ah Kl, 20 Cal. 178; People v. Noregea, 48 Cal. 123;
State V. Humason, 5 Wash. 499; Watkins v. State, 2 Tex. App. 73.
(743)
§ 332 INSTRUCTIONS TO JURIES. [Ch. 30
of the accused, and the probahilitj, from the character of the
property and other circumstances of the case, that the ac-
cused, if innocent, could show how he acquired possession."^^
i 332. Same — What instruotions proper.
Even where it is held that this presumption is merely one
of fact, there is great conflict of authority as to what instruc-
tions on the subject may properly be given. In California
it was held error to instruct the jury that possession of re-
cently stolen property, unexplained, is of itself sufficient to
authorize a conviction.'^' But in Illinois and ITew York, an
instruction to that effect has been sustained.''* So, accord-
ing to the Illinois decisions, the jury may be told that "the
possession of stolen property soon after the commission of a
theft is prima facie evidence of the guilt of the person ia
whose possession it is found."*" But in Alabama and Ne-
braska such an instruction has been condemned.*^ In one
of these cases it was said : "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."**
TT stover V. People, 56 N. Y. 817.
Ts People v. Ah Ki, 20 Cal. 178; People ▼. Chambera, 18 Cal. 383;
People V. Levison, 16 Cal. 98.
"Keating v. People, 160 111. 483; Smith v. People, 103 111. 82;
Goldstein v. People, 82 N. Y. 231.
80 Keating v. People, 160 111. 483; Smith v. People, 103 HI. 82.
In Hix v. People, 157 111. 382, it was held that an instruction "that
the possession of property recently stolen Is of Itself prima facie
evidence that the person in 'whose posseBsion the property is found
is the actual thief, and, unless this presumption Is rebutted,
• • • [the jury should] find the defendant guilty," is erroneous
as directing the jury to find defendant guilty without submitting
an hypothesis based on the evidence embodying all the facts nec-
essary to establish guilt.
81 Orr V. State, 107 Ala. 35; Dobson v. State, 46 Neb. 250.
•» DobBon T. State, 46 Neb. 250.
(744)
Ch. 30] ON PRESUMPTIONS OF LAW, ETC. ^ 333
8 333. Same — ^Instructing that possession of recently stolen
property raises presumption of guilt.
of guilt, and the following instructions have been approved :
In some jurisdictions the jury may be instructed that pos-
session of recently stolen property is presumptive evidence
"Whenever it is established that a larceny has been com-
mitted, ,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 char-
acter charged to have been committed."** "That possession
of stolen property immediately after the theft, if an unsat-
isfactory account of it is given, 'affords presumptive evidence
of guilt,' " the whole matter of the degree of force the pre-
sumption ought to have been submitted to the jury as a mat-
ter of fact.** 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 pos-
session of the defendant, such possession, if unexplained, 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."*^ Where property, when stolen,
wag all in a valise, and of necessity was taken at the same
time, and by the same person, an instruction that, if defend-
ant was, within a few hours after the larceny was committed,
found in possession of part of the stolen property, the pre-
»» Tucker v. State, 57 Ga. 5(f3. See, also, McLain v. State, 18
Neb. 154.
»*Com. v. McGorty, 114 Mass. 299.
•6 State V. Henry, 24 Kan. 460.
(745)
§ 333 INSTRUCTIONS TO JURIES. [Ch. 30
Biunption would arise that ''he stole all descrihed in the in-
dictment was proper.^^ 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 show-
ing that the party having such possession was the thief."*''
So it has heen held proper to refuse a charge that the fact
that defendant had in his possession a portion of cer-
tain 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 prop-
erty does impose on the possessor the onus of explaining the
possession.** An instruction that unexplained possession of
recently stolen property is presumptive evidence of guilt, and
that, if the jury is 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.*^ In some juris-
dictions, an instruction that "possession of recently stolen
property is presumptive evidence of the guilt of the pos-
sessor" is considered to trench on the province of the jury,
and should not be given.*" It has also been held that an in-
is^ruction that, "when the state relies upon the possession of
88 state V. Wilson, 95 Iowa, 341.
»' Shepperd v. State, 94 Ala. 104.
»8 Martin v. State, 104 Ala. 71.
89 State V. Tucker, 76 Iowa, 232.
00 Pollard v. State, 33 Tex. Cr. App. 197; Baker v. State, 80 Wis.
416; McCoy v. State, 44 Tex. 616; Hannah v. State, 1 Tex. App.
578; Poster v. State, 1 Tex. App. 363; Alderson v. State, 2 Tex. App.
10. See, also, Sartorius v. State, 2 Cushm. (Miss.) 602.
(746)
Ch. 30] ON PRESUMPTIONS OF LAVv^, ETC. § 334
recently stolen property as a presumption of guilt," etc., i«
erroneous, as leading the jury to infer that guilt will be pre-
sumed from such possession.®^
S 334. Same — Instructing that possession of recently stolen
property is strong evidence of guilt.
Th© following instructions, similar to the ones already
mentioned in this section, have also been- held erroneous :
"That the possession of stolen property, supported by other
circumstances and other evidence tending to show guilt, is a
strong circumstance in the case."^^ That "such possession,
if proven to the satisfaction of the jury, and unexplained by
the defendant, supported by other circumstances tending to
show guilt, is a strong circumstance tending to show guilt."®*
That "the possession of stolen property, supported by other
evidence tending to show guilt, is a strong circumstance tend-
ing to show guilt."®* "That the possession of recently stolen
property is regarded in law as a criminating circumstance,
tending 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."®' "Whether
the possession is strong evidence, or only slight evidence, tend-
ing to show guilt, is a matter for the jury to pass upon, and
not a question for the court to determine."®*
•iLockhart v. State, 29 Tex. App. 35,
»2 People V. Ah Sing, 59 Cal. 400.
»8 People V. Titherington, 59 Cal. 598; State v. Sullivan, 9 Mont.
174.
84 People V. Cline, 74 Cal. 575.
•5 State V. Walters, 7 Wash. 246.
»• People V. Ah Sing, 59 Cal. 400.
(747)
g 335 INSTRUCTIONS TO JURIES. [Ch. 30
§ 335. Same — Instructing that burden of explaining posses-
sion is on defendant.
In some jurisdictions, the court may instruct that the pos-
session of recently stolen property casts on defendant the bur-
den of explaining how he got it.®^ In others, the giving of
such an instruction has been held erroneous.^* But an in-
struction that the burden is an defendant to give a satisfac-
tory explanation of his possession of recently stolen property
■will not be ground for reversal, where the court, on exception
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 reasonable doubt as to his
guilt.»»
§ 336. Instructions as to defendant's explanation of possession.
Any explanation which the party in whose possession the
property is found may give at the time as to the nature and
extent of his possession, and how he came by it, is admissible
in evidence either for or against him. And if the explana-
tion, when testified to before the jury, seems to them to be
reasonable, and is not shown to be false, the presumption
against the accused from his possession is rebutted, and the
jury are not justifi.ed in convicting without further evidence
against him.''-*"' The statement of a defendant with regard
to the character of his right to the property, when first found
in possession of stolen property, and explanatory of his pos-
session of it, if reasonable and probable, devolves the onus
»7 Cooper V. State, 87 Ala. 135 ; State v. Garvin, 48 S. C. 258.
ssRobb V. State, 35 Neb. 285; Brooke v. People, 23 Colo. 375;
Griffin v. State, 86 Ga. 257; Lehman v. State, 18 Tex. App. 176;
Martinez v. State, 41 Tex. 164. See, also, Blankenship t. State,
55 Ark. 244.
»9 Brooke V. People, 23 Colo. 375.
100 Perry v. State, 41 Tex. 483, 486.
(748)
Ch. 30] ON PRESUMPTIONS OF LAW, ETC. § 336
upon the state to show that such explanation is false.*"^
The defendant is entitled to an instruction to this effect as a
part of the law of the case/"^ and a failure or refusal to give
such instruction, when warranted by the eyidence, is erro-
neous;^"^ but such error is not ground for reversal where
there is no probability that the charge would have affected
the verdict in any way.^"* Of course, no instruction of this
nature should be given if the evidence does not warrant it.-''*''
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.'"'® 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 per-
son, 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 shovsm, it was their duty to acquit."^"^
It is proper to instruct that the explanation of one charged
with larceny as to his possession of stolen property may be
shown to be false by circumstantial evidence, if there is evi-
101 Miller v. State, 18 Tex. App. 38; Garcia t. State, 26 Tex. 209;
Galloway v. State, 41 Tex. 289; Johnson v. State, 12 Tex. App. 385;
Sitterlee v. State, 13 Tex. App. 587; Perry v. State, 41 Tex. 483.
102 Miller v. State, 18 Tex. App. 38; Sullivan v. State, 18 Tex.
App. 623; Schultz v. State, 20 Tex. App. 308; Wright v. State, 35
Tex. Or. App. 470.
103 Hyatt v. State, 32 Tex. Or. App. 580; Windham v. State, 19
Tex. App. 413.
io4Teague v. State (Tex. Cr. App.) 20 S. W. 367.
105 Wilson V. State (Tex. Cr. App.) 34 S. W. 284; Conners v. S^"^-
31 Tex. Cr. App. 453 ; Baldwin y. State, 31 Tex. Cr. App. 589.
loe Bonners v. State (Tex. Cr. App.) 35 S. W. 650.
^ 107 Gilmore v. State (Tex. Or. App.) 33 S. W. 120.
(749)
§ 336 INSTRUCTIONS TO JCrjES. [Ch. 30
dence on which the instruction can be based.*"® An instruc-
tion that, "if you believe, from the evidence 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 explanation of his said pos-
session which appears reasonable and probably true, then,
before you will be warranted in finding a verdict of guilty
in this case, you must be satisfied from the evidence, beyond
a reasonable doubt, that the other testimony in the case estab-
lishes the falsity of the explanation so made by the defend-
ant," is equivalent to telling 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 circumstance alone authorized the jury to
convict the defendant, and is a charge upon the weight of
the evidence.-'"® 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 possession of the defendant, and that the circumstances
connected 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 defendant,"
amounts to telling the jury that they are authorized to
108 Franklin v. State, 37 Tex. Cr. App. 312.
looMcCarty v. State, 36 Tex. Cr. App. 135; Wilson v. State (Tex.
Cr. App.) 34 S. W. 284.
(Y50)
Ch. 30] ON PRESUMPTIONS OP LAW, ETC. § 337
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 circum-
Btances giving character to it.''^^ 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 pre-
sumptive evidence of the burglary ; but where goods have been
feloniously taken by means of a burglary, and they are im-
mediately or soon thereafter found in the actual or exclusive
possession of a person, who gives a false account, or who re-
fuses to give any account, of the manner in which the goods
came into his 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 prop-
erty, before the presumption of burglary is superadded to
that of larceny," — is proper as a statement of a legal princi-
ple in the abstract. ■'^^
§ 337. Miscellaneous instructions.
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."^^* So, an
instruction that, "if the defendants were found in possession
of any part of the property described in -the indictment soon
after such property was stolen, such possession, unless satis-
1" Pace V. State (Tex. Cr. App.) 31 S. W. 173,
11a Taylor v. Territory (Ariz.) 64 Pac. 423. In this case, ho-w-
ever, the reviewing court hold that the instruction was applicable
to the evidence.
"'People T, Rodundo, 44 Cal. B41.
(751)
g 337 INSTRUCTIONS TO JURIES. £Ch. 30
factorily explained, was a circumstance to be considered, in
connection with other suspicious facts, in determining their
guilt or innocence," has been held proper.^ ^* 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.-'-^® So, an
J 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 en-
able you to arrive at the guilt or innocence of the defendant,
and, if said statements appear to be reasonable and consist-
ent, it is a circumstance in his favor, but, if the said state-
ments are unreasonable and false, it is a circumstance against
him," is erroneous for the same reason.^^* It has been held
not prejudicial error to refuse an instruction that possession
of stolen goods is only presumptive evidence of guilt, where
an instruction is given that the jury may consider defend-
ant's testimony and his theory accounting 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."^
An instruction that unexplained 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.^^*
114 People V. Pagan, 66 Cal. 534.
115 Reed V. State, 54 Ark. 621.
116 Merrltt v. State, 2 Tex. App. 182.
117 People V. Walters, 76 Mich. 195.
118 Underwood v. State, 72 Ala. 220.
(752)
Ch. SO] ON PRESUMPTIONS OF LAW, ETC. g 339
VI. Peesdmptions as to Sanitt.
S 338. Scope of article.
There is much conflict in the cases as to the burden of proof
upon the question of insanity as a defense to crime, and as
to the quantum of proof necessary to successfully maintain
the burden. These questions are not regarded as being with-
in the scope of this work. Very many requests and instruc-
tions have been condemned because placing the burden of
proof upon the wrong party, or requiring too great a quantum
of evidence to sustain the burden. Such instructions are er-
roneous merely because they state an incorrect proposition of
law. It is beyond the scope of this book to consider the cor-
rectness of the law announced in the instructions, as such
questions are not peculiar to instructions, but are the same,
however they arise, — ^whether in the instructions, the plead-
ings, or otherwise.
§ 339. Presumption that all men are sane.
In a criminal case, 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.'"^* 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.^^" It is prop-
er 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
"» Sanders v. State, 94 Ind. 147; Guetlg t. State, 66 Ind. 94;
State V. Reddlck, 7 Kan. 152; State v. Bruce, 48 Iowa, 538; State
v. Pagels, 92 Mo. 300.
"0 State V. Clevenger, 156 Mo. 190, 56 S. W. 1078; State v. Mc-
Coy, 34 Mo. 534; State v. Pagels, 92 Mo. 300.
(753)
48. — Ins. to Juries.
§ 341 INSTRUCTIONS TO JURIES. [Ch. 30
that presumption in the first instance.**^ An instruction
that the law presumes every man to be sane, and that insan-
ity 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 com-
petency of the evidence.*^*
S 340. Conflicting presumption of innocence.
A charge that "the presumption of innocence is so far of
greater strength than that of sanity that, when evidence ap-
pears tending to prove insanity, it compels the prosecution to
establish, from all the evidence, mental soundness beyond a
reasonable doubt," is erroneous.'^^*
i 341. Presumption as to continuance of insanity.
In a prosecution defended on the ground of insanity, a
refusal to instruct that insanity of a permanent type, proved
to have once existed, is presumed to have continued, is er-
ror.^^* An instruction that "insanity, when once shown to
exist in an individual, is presumed to continue until the con-
trary is shown by the evidence," is not erroneous because
omitting 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."^^^ In a criminal
trial, where insanity is relied on as a defense, it is proper
to refuse to instruct the jury that, if the defendant was in-
"1 People v. Gartutt, 17 Mich. 9, 97 Am. Dec. 162.
i22Domliilck V. Randolph, 124 Ala. 557.
123 Guetig V. State: 66 Ind. 94.
124 State V. Wilner, 40 Wis. 304.
i25Grubb V. State, 117 Ind. 277.
(754)
Oh. 30] ON PRESUMPTIONS OF LAW, ETC. § 343
lane a short time before the commission of the act, the pre-
sumption is that he was insane when he committed it.***
i 342. Presumption that defendant is feigning insanity.
Where the judge charged that, if the jury found that the
prisoner was watching to see whether he was observed, aijd
regulating his conduct accordingly, it would raise a strong
presumption that the prisoner was feigning insanity, it was
held there was no error. ■'^'^
VII. Pbbsumption Arising from Flight.
f 343. In general.
The flight of a person suspected or charged with crime is
a circumstance which the jury are authorized to consider,
with other evidence in the cause,^** as tending in some de-
gree to prove a consciousness of guilt. ■'^^ The court may
give the jury certain instructions on this subject, provided
there is evidence on which to base them. The jury may be
told that "evidence tending to prove flight has been offered,
and may be considered by them as a circumstance bearing on
the guilt of the accused, with all the other evidence in the
case."^^" The following instructions similar to the one set
out have also been approved: "If you find from the evi-
dence that defendant did thus attempt to escape from cus-
tody, this is a circumstance to be considered by you, in con-
nection with all the other evidence, to aid you in determin-
ing the question of his guilt or innocence."^^* That if the
128 People V. Smith, 57 Cal. 130.
i2'McKee v. People, 36 N. Y. 113.
128 State v. Thomas, 58 Kan. 805; Anderson v. State, 104 Ind.
467.
i29.People V. Giancoll, 74 Cal. 642.
130 state V. Thomas, 58 Kan. 805.
131 Anderson v. State, 104 Ind. 467.
(755)
§ 343 ' INSTRUCTIONS TO JURIES. [Ch. 30
def^daiit> feliottly after the homicide, "conce&led hiliiself, or
fled from the neighborhood where deceased was slaih, then
that circumstance might be considered by you with the other
testimony in the case, as bearing upon the question of de-
fendant's guilt."^^^ "Flight raises the presumption of guilt ;
and if you believe, frohl the evidence, that the defendant,
after having shot and killed M., as charged in the indict-
ment, fled the country, and tried to avoid arrest and trial,
you may take that fact into consideration in determining his
guilt or innocence. "^^^ "That it is allowed to be proved,
when a party attempts to escape or get out of the way of the
arresting ofiicer ; 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."^^*
That "the flight of a person immediately after the commis-
sion of a crime, or after a crime has been committed with
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 juryj 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 sufiicient,
of itself, to establish the guilt of the defendant."^^^ That
"the flight of a person immediately after the commission "of
a crime, or after a crime is committed with which he is char-
ged, is a circumstance in establishing his guilt, not sufiicient,
"2 People v. Ramirez, 56 Cal. 533.
183 state V. Gee; 85 Mo. 647.
1S4 Smith V. State, 63 Ga. 170.
185 People V. Bnishton, 80 Cal. 160. In this case it was held that
the instruction was not vicious as assuming that the crime char-
ged against the defendant was admitted.
(756)
Ch. 30] ON PRESUMPTIONS OF LAW, ETC. § 343
of itself, to estatlish hia gUiilt, 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."^** An instruction, that "the law recognizes
another proposition 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 rec-
ognized so often by mankind that we can take it as an axiom,
^nd ^pply it in this case," — is erroneous, as being equivalent
to a direction to the jury that the presumption of guilt aris-
ing from flight was so conclusive that it was the jury's duty
to act on it as axioma,tic, proof.^*'' An instruction "that
flight is very slight evidence of guilt in any case, and ought
not to weigh anything when satisfactorily explained," wa:s'
held properly refused, as trenching on the province of the
jury.''^* A requested .instruction in defendant's beha,lf, in
a prosecution for murder, that, if his flight wa,s 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
properly refused, as being an invasion of the province of the
jury.^^* And for the same reason the following instruction
was held properly refused : "Flight is not evidence of guilt
Tinless 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
is» People V. Forsythe, 65 Cal. 101.
"T Hickory v. United States, 160 U. S. 408.
138 Smith V. State, 63 Ga. 170. "Whether a given fact Is evi-
dence or not Is for the court, but whether it Is slight, or what weight
It should have, Is for the jury."
188 Miller T. State, 107 Ala. 40. This Instruction was also deemed
abstract.
(757)
§343 INSTRUCTIONS TO JURIES. - [Ch. 30
j^gp "140 j^ jg likewise 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 cir-
cumstances the most innocent person might seek safety in
flight." These were considerations which it was the prov-
ince of counsel, and not of the courty to present to- the
jury.^*^ 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 connec-
tion with other proof, may be the basis from which guilt may
be>inferred."^*^ A charge that, "though evidence tending
to show flight is a matter to be 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.^*^ Where the court did not instruct that any
presumption of guilt arose from the defendant having left
the state, a failure to instruct as to the presumptions from
flight was not error. ^**
140 Thomas v. State, 107 Ala. 13.
1" People V. Giancoli, 74 Cal. 642.
142 Com. V. BoBchino, 176 Pa. 103.
i4sBodine v. State (Ala.) 29 So. 926.
14* State V. Thompson, 155 Mo. 300.
(758),
CHAPTER XXXI.
OTHER CAUTIONARY INSTRUCTIONS.
I. Catttion against Sympathy oe Prejudice.
i 844. Propriety and Necessity of Instructions on this Subject
346. What Instructions may be Given.
II. BuBDBN or Pboof.
{ 346. Propriety and Necessity of Giving Instructions.
347. Propriety and Sufficiency of Particular Instructions.
III. Deqebe op Peoof Necessary in Civil Cases.
{ 348. Necessity and Sufficiency of Preponderance of Evidence to
Sustain a Verdict.
849. What Instructions Proper where Evidence Equally Balanced.
850. Instructions Requiring Too High a Degree of Proof — ^That
Evidence must "Satisfy" Jury.
851. Same— Other Instructions Requiring Too High a Degree of
Proof.
352. Instructing that Preponderance is Determinable by Number
of Witnesses.
IV. Limiting Consideration of Evidencs xo Pubfoss fob which
Admitted.
i 853. In General.
354. In Criminal Cases.
866. In Civil Cases.
V. Cautions as to Arguments of Counsel.
I 356. What Comments on Legitimate Argument Proper.
857. Correcting Erroneous or Improper Argument.
358. At What Stage of Trial Correction Made.
VI. Miscellaneous Late Cases.
I 359. In General.
860. Duty and Conduct of Jury.
SU. Corroboration of Witnesses.
(Y59)
g 344 INSTRUCTIONS TO JURIES. [Ch. 31
I. Caution against Sympathy oe Pbejudice.
i 344. Propriety and necessity of instructions on this subject.
The decisions are all agreed that the trial judge may cau-
tion the jury not to allow sympathy or prejudice to influence
them in making up their verdict.'^ As regards the necessity
of giving such instructions, there is some diversity of opin-
ion. A request for a caution of this nature may, of course,
he refused, if there is nothing in the circumstances of the ease
which would make it proper.^ And authority is not want-
ing for the position that it is within the court's discretion,
whether such an instruction shall be given in any case.* In
one decision it was said: The trial judge "is in a position
to observe and know whether the situation is such as to ren-
der such cautionary instructions necessary to a due admin-
istration of justice, and if, in his opinion, they are not, his
refusal to give them cannot ordinarily be assigned for error,"
• — and the refusal of such an instruction was sustained.* On
the other hand, it has been said in one decision that such an
instruction, if asked, should be given in most cases, as it can-
not harm or be of undue advantage to either party; but a
refusal of such an instruction was sustained because the re-
viewing court thought no prejudice had resulted therefrom.*
So in another decision it was said that a case might readily
be supposed "where such admonition to a jury would be not
only proper, but necessary."'
' 1 Birmingham Fire Ins. Co. v. Pulver, 126 111. 829; Wood v. State,
64 Miss. 776; Smith v. State, 4 Neb. 278; State v. PetBch, 43 S. C.
132; Blizzard v. Applegate, 77 Ind. 626.
2 Central Branch Union Pac. R. Co. v. Andrews, 41 Kan. 871.
8 Birmingham Fire Ins. Co. v. Pulver, 126 111. 329; State T. Tal-
bott, 73 Mo. 347, 357.
* Birmingham Fire Ins. Co. v. Pulver, 126 111. 339.
I » Doyle V. Dobson, 74 Mich. 567.
/ > Blizzard v. Applegate, 77 Ind. 526.
(760)
Ch. 31] OTHER CAUTJIONARY. § 345
S 345. Wliat instructions may be given.
In cautioning the jury on this subject, it has been held
proper to instruct that ''you will allow no false sympathy to
sway you from a proper discharge of your duty ;'"' or 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;^ or that the
jury should not be influenced by any supposed hardships of
the case;^ or should not be controlled in making up their
verdict by any fear as to what the punishment may be j^" or
should not "lose their heads, and return a verdict for a lady
on general principles;"-'^ or "should consider the case with-
out regard to the difference in race or color of the parties ;"^^
or "that it was of no consequence whether defendant was
married or single -"^^ or 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
ease;"^* or to "caution the jury not to be influenced by pub-
f Smith V. state, 4 Neb. 277.
8 Wood V. State, 64 Miss. 761.
» Davis V. Kingsiey, 13 Conn. 285. In this case the court said :
"Justice, as well as law, requires that he who has assumed an
obligation for another should faithfully fulfill it; and although, as
men, jurors may sympathize with those who suffer, yet as honest
men, bound by oath to administer judgment according to law and
evidence, they were properly cautioned by the presiding judge
against the appeal made to their feelings by the counsel for the
defendants."
loCoyle V. Com., 100 Pa. 574; Brantley v. State, 87 Ga. J49; Wil-
son V. State, 69 Ga. 240. It is not error to tell the jury that they
have nothing to do with the question of punishment. Clarey v.
State (Neb.) 85 N. W. 897.
" Bingham v. Bernard, 36 Minn. 114.
i2Lunsford v. Walter, 93 Ala. 36.
»3 People V. Young, 65 Cal. 225.
" State V. Talbott, 73 Mo. 347.
(761)
;^ 34h INSTRUCTIONS TO JURIES. [Ch. 31
lie opinion, whether for or against accused, and to state to
them that they had nothing to do with the pleasure or dis-
pleasure of the public.'"* So an instruction that: "You
have no right to act upon your sympathies without any proof ;
but if the proof happened to concur with your sympathies,
you are not to disregard the proof because of that fact. You
are to be governed, by the proof in the case," — has been ap-
proved.'* And in cautioning the jury against sympathy or
prejudice, a remark by the court that the crime of which de-
fendant was accused was a dastardly one was held not re-
versible error.''' Questions of mercy are not for the jury,
but for the executive, in the exercise of the pardoning power ;
and it is not error to tell the jury so in the instructions.'^
Thus, an instruction that: "Mercy does not belong to you.
ISTo 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 de-
fendant is guilty," — is not erroneous.'* 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 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 tho
ground that it is calculated to prejudice the jury against the
parties opposing the grant of the license.^"
II. Burden of Pro6f.
§ 346. Propriety and necessity of giving instructions.
Though the court is not always required to charge on the
10 McTyler v. State. 91 Ga. 254.
16 Shehan v. Barry, 27 Mich. 217.
"State v. McCarter, 98 N. C. 637.
18 Dinsmore v. State (Neb.) 85 N. W. 44E,
18 Avery v. State, 124 Ala. 20.
20 Lynch v. Bates, 139 Ind. 206.
Ch. 31] OTHER CAUTIONARY. § 346
burden of proof, the propriety of doing so depending on tlio
state of the evidence, the mere fact "that the evidence upon
an issue which is submitted to the jury is conflicting. does not
make it improper for the court to give a charge informing the
jury as to which party has the burden of proving the issue
submitted to them."^^ But the trial court is not bound to in-
struct the jury in regard to the burden of proof, unlass a
proper instruction on the subject is asked. ^^ It will, how-
ever, usually be error to neglect or refuse to give an instruc-
tion on this subject when requested.** Thus it is error in a
criminal case to refuse an instruction that "the burden of
proof to show the truth of the charge is at all times on the
state ;"^* or to refuse an instruction that the burden of proof
is oh the state to prove beyond a reasonable doubt every ele-
ment of the crime of which the defendant may be convicted.^''
'And in civil cases, as jurors generally understand that the
2iChittim V. Martinez (Tex.) 58 S. W. 948. But see Macon v.
Paducah St. Ry. Co. (Ky.) 62 S. W. 496.
22 Miles V. Strong, 68 Conn. 273; McKinney v. Guhman, 38 Mo.
App. 344; Maynard v. Fellows, 43 N. H. 255; Conway v. Jefferson,
46 N. H. 521; Duncombe v. Powers, 75 Iowa, 185; Martin v. Davis,
76 Iowa, 762; Anderson v. Balrd, 19 Ky. Law Rep. 444, 40 S. W.
923; In re Bromley's Estate, 113 Mich. 53; Small v. Williams, 87
Ga. 681; Hunter v. McElhaney, 48 Mo. App. 234; Mitchell v. Mitch-
ell, 18 Wkly. Notes Cas. (Pa.) 439; Gulf, Colorado & Santa Fe Ry.
Co. V. McCarty, 82 Tex. 608; Smith v. Chicago, M. & St. P. Ry.
Co., 60 Iowa, 512; Cooper v. Lee, 1 Tex. Cjv. App. 9; Frye v. Fer-
guson, 6 S. D. 392.
23 Black V. State, 1 Tex. App. 369; Stevens v. Pendleton, 94 Mich.
405.
24 Black V. State, 1 Tex. App. 369 ; Phillips v. State, 26 Tex. App.
228. It will also be error to give an instruction calculated to leave
the impression on the minds of the jury thjit the state had made
out its case, and that, unless evidence of defendant raised in their
minds a reasonable doubt, they should convict. Snyder v. State,
59 Ind. 105.
20 People V. Cohn, 76 Cal. 386.
(763)
§ 346 INSTRUCTIONS TO JURIES. [Ch. 31
burden of proof is upon plaintiff in all cases, a request, where
the burden shifts to the defendant, that they may be instruet-
ed accordingly, should be granted.^* It has teen held, how-
ever, that, if the evidence conclusively 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.^^ So,
where a proper instruction as to the burden of proof has been
given, a requested instruction, wliich adds nothing to the force
of the one already given, niay rightfully be refused.^* The
court need not repeat instructions already given on this sub-
ject.^' Thus, in a criminal case, where the court instructed
that the jury must believe the defendant guilty beyond a rea-
sonable doubt, or acquit, an instruction as to the burden of
proof is unnecessary, and should not be given.^** Where the
court in its main charge instructs that "the defendant in a
criminal case is presumed to be innocent until his guilt is es-
tablished by legal evidence beyond a reasonable 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 throughout to estab-
lish every constituent element of the offense,"— at least, it is
not Such error as is calculated to injure the rights of defend-
ant.'-*- The usual charge on reasonable doubt makes uanec-
essary a charge that the burden is upon the state throughout
to establish every constituent element of the offense.^*
«6 Stevens v. Pendleton, 94 Mich. 405.
f In re Tetter's Estate v. Zorick, 55 Minn. 452.
28 State V. McDonald, 65 Me. 465.
»9 Houston & T. C. R. Co. v. Dotson, 15 Tex. Civ. App. 73.
«o State V. Hollingsworth, 156 Mo. 178.
81 Lewis V. State (Tex. Cr. App.) 59 S. W. 886. The controversy
was apparently held in SO Tex. App. 541, but It did not appear that
the court charged upon reasonable doubt.
»2 Huggins V. State (Tex. Cr. App.) 60 S. W. 52.
(764)
Ch. 31J OTHER CAUTIONARY. g 347
S 347. Propriety and sufficiency of particular instructions.
In instructing the jury as to the burden of proof, it is ma-
terial error to place the burden of proof on the wrong party,
since it is calculated to mislead the jury.^^ Thus it was
error, in a case of criminal libel, to charge that it was in-
cumbent on defendant to satisfy the jury that the libel was
not published with his knowledge or authority, and, unless he
had so satisfied them, they should find hini guilty, since this
puts the burden of proof upon the defendant to show his in-
nocence, contrary to the rule of reasonable doubt and the pre-
sumption of innocence.** 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 defend-
ant, does not change the burden of proof from the defendant
to the plaintiff.^^ The jury may properly be instructed, on
this subject, that the party holding the affirmative of the issue
must prove it by a preponderance of the testimony, and that,
if their minds are in equipoise upon the evidence, they should
find against such party.*® The jury may also be instructed
that the burden is on defendant to prove his answer by a
preponderance of the evidence f and this will be a sufficient
instruction on the subject when no further instruction is re-
quested.** It is proper to refuse to charge, in an action for
personal injuries, that the burden is "on the plaintiff to es-
tablish the inaterial allegations in his petition by the pre-
ss Woodson Machine Co. v. Morse, 47 Kan. 429; Pennington t.
Woodall, 17 Ala. 685; State v. Crossley, 69 Tnd. 208; Wildey y.
Crane, 69 Mich. 17; State v. Grinstead, 62 Kan. 693.
»* State v. Grinstead, 62 Kan. 593.
»5 Clifton V. Sparks, 25 Mo. App. 383.
sSLockhart v. CamfielS, iS Miss. 491, Me^w v. Blackemorc. b3 Hiester v. Laird, 1 Watts & S. (Pa.) 245; G-reathouse v. Moore
(Tex. Civ. App.) 23 S. W. 226.
8* Merchants' Loan & Trust Co. v. Lamson, 90 111. App. 18.
85 Battles V. Tallman, 96 Ala. 403.
»6 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 doubt as to any
of the facts, was held erroneous, as exacting too high a measure
of proof, and as calculated to make the jury understand that the
evidence must be certain beyonrl doubt. See, also, Spencer v. Dag-
gett, 2 Vt. 92, where it was held proper to refuse an instruction
that, if the jury doubted about the fact of defendant's liability, they
must find for him.
87 B. Lantry Sons v. Lowrie (Tex. Civ. App.) 58 S. W. 837; Cabell
v. Menczer (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 charging
(Y76)
Ch. 31] OTHER CAUTIONARY. § 352
miast be sucli that they are not explicable on any other rea-
sonable hypothesis;"** or, in an action for wrongful attach-
ment, that "the burden of proof is on the plaintiff to show
that the attachment was sued out by the defendant wrong-
fully, maliciously, and without probable cause, and of the
existence of these elements she must reasonably 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 recover;"** or that the plaintiff
must prove his case by "downright evidence ■,"^°° that if the
evidence leaves a fact "in a state of doubt and uncertainty,"
it "cannot be regarded as established by the testimony."^"^
Charges requiring satisfaction beyond a reasonable doubt
exact too high a degree of proof, and should never be given
in civil actions. Proof which reasonably satisfies the jury
is all that is required.^**
§ 352. Instructing that preponderance is determinable by mim-
ber of witnesses.
An instruction which gives the jury to understand, or
which is liable to give the jury to understand, that the pre-
ponderance of the evidence is to be determined by the number
of witnesses testifying on each side, is erroneous.^"^ Hence
an instruction that the preponderance of testimony "does
a jury that they are to decide on the fair preponderance of the evi-
dence, 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. Jamison (Iowa) 84 N. W. 705.
s>8 Phoenix Ins. Co. v. Moog, 87 Ala. 335.
89 Brown v. Master, 104 Ala. 451.
i«» Roe V. Bacheldor, 41 Wis. 360.
»»i Rowe V. Baber, 93 Ala. 422.
i«2 Decatur Car Wheel & Mfg. Co. v. Mehaffey (Ala.) 29 So. 646.
As to the exceptional rule prevailing in Alabama, see ante, § 849.
i»8 Howlett V. Dilts, 4 Ind. App. 23.
(777)
§ 353 INSTRUCTIONS TO JURIES. [Ch. 31
necessarily consist in the number of witnesses," etc., instead
of "does not necessarily consist," etc., nrnst 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.^"* The jury may
properly be instructed that the preponderance of evidence is
to be determined, not alone from the number of the wit-
nesses, but also from their respective opportunities of seeing,
knowing, or remembering what they testify to, the probability
of its truth, their relation to the parties, their interest, if
any, in the result, and their demeanor while testifying.^"^
But it has been held that a judgment should not be reversed
merely because of a refusal to give such an instruction.*"®
An instruction which tells the jury that the preponderance of
evidence does not consist merely in the number 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 enu-
meration the question of the relative number of witnesses.*'"'
IV. Limiting Consideration op Evidence to Pcbpose foe which
Admitted.
S 353. In general.
It is the well-settled practice that where evidence is ad-
missible for some purposes, but not for others, the court
should not for that reason exclude, it from the jury.*"^ When
evidence of this nature is admitted, it is, of course, proper for
104 Illinois Cent. R. Co. v. Zang, 10 111. App. 594.
100 Meyer v. Mead, 83 111. 19. Compare Chicago City Ry. Co. v.
Keenan, 85 111. App. 367.
106 Greeley, S. L. & P. Ry. Co. v. Yount, 7 Colo. App. 189.
101 Hays v. Johnson, 92 111. App. 80.
108 Farwell v. Warren, 51 111. 467.
(778)
Ch. 31] OTHER CAUTIONARY. § 354
tte cofUrt to explain to the jury the purpose for wbicb it was
Aitrdtted, and direct them not to consider it for any other
pnTpose.^"* But in giving these instructions, care should be
exercised so as noft to withdraw the evidence from the con-
sideration of the jury, nor to restrain th«m from giving it, in .
conDection with the other evidence in the case, such weight in
respect to the matter which it proves, in the light of reason
and good sense, they may as thus advised believe it de-
§ 354. In criminal cases.
Subject to a few exceptions and limitations, it may be
stated as a general rule that in criminal cases, where evidence
competent for one purpose, but for no other, is admitted, the
court should, on or without request, limit the jury's con-
sideration of such evidence to that purpose alone for which it
was admitted ;^^^ and in one state it has been held that ex-
looGiddings v. Baker, 80 Tex. 308; Missouri Pae. R. Co. v. John-
son, 72 Tex. 95; Harrington v. State, 19 Ohio St. 264; People v. Gray,
66 Cal. 271; Bngers v. State (Tex. Or. App.) 26 S. W. 987; Short
V. State (Tex. Cr. App.) 29 S. W. 1072; Winfrey v. State (Tex. Cr.
App.) 56 S. W. 919.
"0 Harrington v. State, 19 Ohio St. 264.
"1 State V. Lavin, 80 Iowa, 555; State v. Marshall, 2 Kan. App.
792; McCall v. State, 14 Tex. App. 353; Paris v. State, 35 Tex. Cr.
App. 82; Martin v. State, 36 Tex. Cr. App. 125; Golin v. State, 37
Tex. Cr. App. 90; Proctor v. State, 37 Tex. Cr. App. 366; Thornley
V. State (Tex. Cr. App.) 35 S. W. 982; Engers v. State (Tex. Cr.
App.) 26 S. W. 987; Rogers v. State, 26 Tex. App. 4C4; Long v. State,
11 Tex. App. 381; State v. Collins, 121 N. C. 667; State v. Lull, 37
Me. 246; Fossdahl v. State, 89 Wis. 4?2; Kollock v. State, 88 Wis.
663; Com. T. Tadrick, 1 Pa. Super. Ct. 555; Gills v. Com. (Ky.) 37
S. W. 269. Contra, People V. Gray, 66 Cal. 271, and Long v. State,
95 Ind. 481, in hoth of which cases it was held that error could not
be predicated of a failure to limit the effect of evidence, in the ab-
sence Of a request for an instruction of that nature.
(779)
§ 354 INSTRUCTIONS TO JURIES. [Ch, 31
ceptions are unnecessary to obtain a review of the error.^^*
But a recent enactment in this state seems to have changed the
rule.^*^ Thus, where the declarations or admissions of one
of two defendants is admitted in evidence, the jury should
be told that such declarations or admissions are evidence only
against the defendant who made them.*^* 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.-*'^ So, where evidence is adduced of
other crimes committed by defendant, in order to show mo-
tive or guilty intent, the court should properly instruct the
jury with reference to the purpose and object of such testi-
mony.*'^ The jury should be instructed to consider evidence
introduced to affect the credibility of the defendant for that
specific purpose alone,'^-'^ as, for instance, evidence that de-
112 Paris v. State, 35 Tex. Cr. App. 82; Thornley v. State (Tex.
Cr. App.) 35 S. W. 982; Burks v. State, 24 Tex. App. 326.
ii3Magee v. State (Tex. Cr. App.) 43 S. W. 512.
iiiKolIock V. State, 88 Wis. 663; State v. Collins, 121 N. C. 66Y;
Short V. State (Tex. Cr. App.) 29 S. W. 1072. In this last case, two
defendants were tried together for unlawfully killing the hogs of
another, and it was shown that one defendant, in the absence of the
other, had said that he intended to kill the hogs, and there was no
evidence of any conspiracy between the defendants at the time of
the making of the declaration. It was held that a failure to charge
that such declaration should not be permitted to affect the absent
defendant was error.
115 Thomas v. State (Tex. Cr. App.) 62 S. W. 919.
iieKolIock V. State, 88 Wis. 663; Francis v. State, 7 Tex. App.
501; Taylor v. State, 22 Tex. App. 530; Wheeler v. State, 23 Tex.
App. 598; Mayfield v. State, 23 Tex. App. 645; Martin v. State (Tex.
Cr. App.) 35 S. W. 976; Davidson v. State, 22 Tex. App. 382; Long
V. State, 11 Tex. App. 381; Barton v. State, 28 Tex. App. 483; Thorn-
ley V. State (Tex. Cr. App.) 35 S. W. 981; McCall v. State, 14 Tex.
App. 358; Mask v. State, 34 Tex. Cr. App. 136; Com. v. Tadrick, 1
Pa. Super. Ct. 555. Compare Shipp v. Com., 101 Ky. 518.
iiTCoker v. State, 35 Tex. Cr. App. 57; Golln v. State, 37 Tex. Cr.
Ch. 31] OTHER CAUTIONAKY^. § 345
fendant has been charged with other crimes,*'® or that he has
been convicted of other crimes,**' or evidence that defendant
had attempted to suborn a witness,*^" or evidence tending
to show that he is guilty of the crime of which he is char-
ged.*^* 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 admit-
ted.*^^. Whenever extraneous matter is admitted in evi-
dence for 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, undiT^ or im-
proper influence upon the jury as to the main issue, the
court should so limit and restrict it that such unwarranted re-
sults cannot ensue.*^^ In Texas a failure to limit the ef-
fect of evidence not proper for consideration on some points
of the case is not error in trials for misdemeanors, as dis-
tinguished from felony cases, unless a request for such an in-
struction has been made.*^* Where there is evidence that
the accused has made contradictory and incriminating state-
ments with respect to matters bearing on the crime, it is
proper to refuse to instruct "that they could only be consid-
ered in so far as they affected the credibility of the defend-
ant; but this was not a request to instruct that evidence of
App. 90; Engers v. State (Tex. Cr. App.) 26 S. W. 987; Jenkins v.
State, 1 Tex. App. 346.
H8 Oliver v. State, 33 Tex. Cr. App. 541.
119 Button V. State (Tex. Cr. App.) 33 S. W. 969; Fossdahl v. State,
89 Wis. 482; Mahoney v. State, 33 Tex. Cr. App. 388.
120 Owens v. State, 35 Tex. Cr. App. 345.
121 Paris V. State, 35 Tex. Cr. App. 82.
122 state V. Lull, 37 Me. 246.
128 Davidson v. State, 22 Tex. App. 372.
121 Duke V. State, 35 Tex. Cr. App. 283; Paris v. State, 35 Tex.
Or. App. 82.
(781)
§ 354 INSTRUCTIONS TO JURIES. ^(Jh. 31
defendant's bad character went only to Jiis credibility as a wit-
ness, and was not evidence of bis guilt, * * * because
any and all statements shown to have been made by defend-
ant tending to show his connection with the homicide were
admissible, however inconsistent they may have been, and re-
gardless of any tendency that they may have had to discredit
him as a witness before the jury,-'^" A failure to limit the
effect of the testimony of a witness for the prosecution in con-
tradiction of a witness for defendant is not error, where the
contradiction is more apparent than real.^^® Where evi-
dence is admissible solely to contradict or impeach a witness^
it is not error to so limit the effect of the evidence by the
charge to the jury.^^^ And generally, where testimony is
introduced for the purpose of discrediting a witness, the omis-
sion to instruct the jury not to consider the evidence for any
other purpose than that for which it was admitted is error.-'^'
But if the purpose of admitting the evidence objected to is
clearly apparent,^^* 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 re-
strict the effect of such evidence is not error. ^^° Thus, where
witnesses admit that they have been previously 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 con-
125 State V. Furgerson, 162 Mo. 668.
128 Massingill v. State (Tex. Cr. App.) 63 S. W. 315,
12' Winfrey v. State (Tex. Or. App.) 56 S. W. 919.
128 Rogers V. State, 26 Tex. App. 404; Gills v. Com. (Ky.) 37 S.
W. 269.
129 State V. Gaston, 96 Iowa, 505; Moseley v. State, 36 Tex. Cr. App.
578.
130 Holly v. Com. (Ky.) 36 S. W. 532; Magee v. State . (N. Y.) 398,
Where the instructions given to the jury upon the question of ex-
emplary damages were erroneous, the general term of the superior
court held that it was called upon to rectify the damage by order-
ing a new trial, and that Its po'wer to do so did not depend upon
an exception having been taken. The court of appeals has several
times aflBrmed the power of the general 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; Hamilton v. Third Ave.
R. Co., 53 N. Y. 25. The doctrine that Code Civ. Proc. § 999, was
intended to authorize a motion to set aside a verdict on the minutes,
on the ground of an error in the charge to which no exception was
taken, and which, if the attention of the trial jud^e had been dl-
(803)
§ 364 INSTRUCTIONS TO JURIES. [Ch. 32
court of appeals, and that court will not reverse for such
errors in the absence of an exception.^^ To justify a reversal
in the absence of an exception, it must be "evident that the
court misunderstood the law, and, as a consequence, misdi-
rected and misled the jury in the general effect of the
charge."^* In Ohio, although exception to the charge or
to the refusal to charge on certain points is general, the re-
viewing court will look to the whole record to see if error in-
tervened to the prejudice of the party complaining of the in-
structions.^'
rected to it by an exception, might have be^n corrected at the trial,
was questioned in Robson v. New York Cent. & H. R. Co., 21 Hun
(N. Y.) 387, but the case was decided upon other grounds. In
Richardson v. Van Voorhis, 20 N. Y. St. Rep. 667, there is a dictum
that section 999 does not relieve a party from taking exceptions 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. R. Co., 15 Misc. Rep. (N. Y.) 256, it was held that the
court has power to grant a new trial, with or without an exception,
for a misdirection 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. C. (N. Y.) 66, it was held that a motion
under section 999 does not raise the question whether the court's
instructions 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 point-
ed out by exception (following Richardson v. Van Voorhis, supra).
27 Roberts v. Tobias,- 120 N. Y. 1; Hamilton v. Third Ave. R. Co.,
53 N. Y. 25; Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506. 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 mis-
lead the jury by an erroneous charge upon the law, the error might,
if fatal or important, be available in this court without an excep-
tion." But the doctrine here suggested has not been followed in
the later decisions, as appears from the cases above cited.
28Ackart v. Lansing, 6 Hun (N. Y.) 476.
29 Little Miami R. Co. v. Pitzpatrick, 42 Ohio St. 318; Weybright
V. Fleming, 40 Ohio St. 52; Baker v. Pendergast, 32 Ohio St. 494;
Marietta & C. R. Co. v. Strader, 29 Ohio St. 448.
(804) ■
Ch. 32] REVIEW ON APPEAL. § 365
§ 365. Same — Digest of decisions.
Exceptions to erroneous instructions necessary.
Arkansas.
Frauenthal T. Brldgeman, 50 Ark. 348.
California.
Williams v. Southern Pao. R. Co., 110 Cal. 457; Mergulre v. O'Don-
nell, 103 Cal. 50; Sharp v. Hoffman, 79 Cal. 404; Carpenter v. Ewing,
76 Cal. 487; Sierra Union Water & Min. Co. v. Baker, 70 Cal. 572
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
Holverstot v. Bugby, 13 Cal. 43.
Colorado.
MofEatt V. Tenney, 17 Colo. 189; Wray v. Carpenter, 16 Colo. 271;
Price V. Buchanan, 12 Colo. 366; Gilpin v. Gilpin, 12 Colo. 504; Pat-
rick Red Sandstone Co. v. Skoman, 1 Colo. App. 323; Gibbs v. Wall,
10 Colo. 153.
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. Greeley, 25 Fla. 629; Emerson v. Ross'
Ex'x, 17 Fla. 122.
Illinois.
West Chicago St. R. Co. v. Martin, 154 HI. 523; Willard v. Petitt,
153 111. 663; East St. Louis Electric 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; Phillips v. Abbott, 52 111. App. 328;
Gulliver v. Adams Exp. Co., 38 111. 503; Sedgwick v. Phillips, 22
111. 183; Buckmaster v. Cool, 12 111. 74; McClurkin v. Ewing, 42 111.
283. .
Indiana.
Lowell V. Gathright, 97 Ind. 313; Coffeen v. McCord, 83 Ind. 593;
City of Evansville v. Thacker, 2 Ind. App. 370.
Iowa.
Leach v. Hill, 97 Iowa, 81; Dean v. Zenor, 96 Iowa, 752; State v.
Black, 89 Iowa, 737; Stanhope v. Swafford, 80 Iowa, 45; Gray v.
Chicago, M. & St. P. Ry. Co., 75 Iowa, 100; Buncombe v. Powers, 75
Iowa, 185; Lewis v. Lewis, 75 Iowa, 669; Norris v. Kipp, 74 Iowa,
(805)
§ 365 INSTRUCTIONS TO JURIES. [Ch. 22
444; Paddleford v. Cook, 74 Iowa, 433; Arneson v. Thprstad, 72
Iowa, 145; Kirk v. Litterst, 71 Iowa, 71; May v. "Wilson, 21 Iowa,
79; Wilcox v. McCune, 21 Iowa, 294; Morse v. Close, 11 Iowa, 93.
Kansas.
Werner v. Jewett, 54 Kan. 530; Russell v. Bradley, 47 Kan. 438;
Kansas Farmers' Fire Ins. Co. v. Hawley, 46 Kan. 746; State v.
Probagco, 46 Kan. '310; Missouri Pac. Ry. Co. v. Johnson, 44 Kan.
660; Kansas Pac. Ry. Co. v. Little, 19 Kan. 267; Barlow v. Emmert,
10 Kan. 358; Joseph v. First Nat. Bank of Eldorado, 17 Kan. 256;
Norton V, Foster, 12 Kan. 44; City of Wyandotte v. Noble, 8 Kan.
444.
Kentucky.
Jackson v. Com., 12 Ky. Law Rep. 575, 14 S. W. 677.
Maine.
Dugan V. Thomas, 79 Me. 221.
Maryland.
Norfolk & W. R. Co. v. Hoover, 79 Md. 253; Baltimore & O. R.
Co. V. Shipley, 31 Md. 368; Baltimore & O. R. Co. v. Resley, 14 Md.
424. But see Dunham v. Clogg, 30 Md. 284.
Massachusetts.
McCart v. Squire, 150 Mass. 484.
Michigan.
McKinnon v. Atkins, 60 Mich. 418.
Minnesota.
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.
Georgia Pac. Ry. Co. v. West, 66 Miss. 310; Bourland v. Board
Sup'rs, Itawamba County, 60 Miss. 1001; Fisher v. Fisher, 43 Miss.
212; Smokey v. Johnson, 4 So. 788.
Missouri.
State V. Hilsabeck, 132 Mo. 348; State v. Pollard, 132 Mo. 288;
State V. taxton, 126 Mo. 500; State v. Cantlin, 118 Mo. 100; State
V. Kennade, 121 Mo. 405; State v. Patrick, 107 Mo. 147; Haniford
V. City of Kansas, 103 Mo. 172 ; State v. Griffin, 98 Mo. 672 ; Lefkow
V. Allred, 54 Mo. App. 141; Shannon v. Hannibal & S. J. Ry. Co.,
(806)
Oh.>32] REVIEW ON APPEAL. § 3'6S
54 Mo. App. 223; McDonald v. Cobb, 44 Mb. App. 167; Rltzenger v.
Hart, 43 Mo. App. 183; Wright v. Gillespie, 43 Mo. App. 244; Mor-
gan V. Rice, 35 Mo. App. 591.
Montana.
Kelley v. Cable Co., 7 Mont. 70; Territory v. Hart, 7 Mont. 489:
Woods V. Berry, 7 Mont. 196; McKinney v. Powers, 2 Mont. 466;
Davis V. Germaine, 1 Mont. 210.
^ehrasTca.
Jolly V. State, 43 Neb. 857; Herzog v. Campbell, 47 Neb. 370; City
of Kearney v. Smith, 47 Neb. 408; Romberg v. Hediger, 47 Neb. 201;
Gravely v. State, 45 Neb. 878; Omaha Fire Ins. Co. v. Dierks, 43
Neb. 473; City of Chadron v. Glover, 43 Neb. 732; Rea v. Bishop,
41 Neb. 202; Bouvier v. Stricklett, 40 Neb. 792; Glaze v. Parcel, 40
Neb. 732; Rector v. Canfield, 40 Neb. 595; American Bldg. & Loan
Ass'n V. Mordock, 39 Neb. 413; Richardson & Boynton Co. v. Winter,
38 Neb. 288; Levi v. Fred, 38 Neb. 564; Roach v. Hawkinson, 34 Neb.
658; Zimmerman v. Klingeman, 31 Neb. 495; Downing v. Glenn, 26
Neb. 323; Schroeder v. Rinehard, 25 Neb. 75; Heldt v. State, 20 Neb.
492; Nyce v. Shaffer, 20 Neb. 507; Tagg v. Miller, 10 Neb. 442; Sco-
fleld V. Brown, 7 Neb. 221; Smith v. State, 4 Neb. 277; Gibson v. Sul-
livan, 18 Neib. 558.
'Nevada.
Lobdell V. Hall, 3 Nev. 507.
New Jersey.
Packard v. Bergen Neck Ry. Co., 54 N. J. Law, 553.
New Mexico.
Territory v. O'Donnell, 4 N. M. 196.
New York.
Wheeler v. Svyeet, 137 N. Y. 435; People v. Buddensieck, 103 N.
Y. 487; Cram v. Gas Engine & Power Co., 75 Hun, 316; Borley v.
Wheeler & Wilson Mfg. Co., 58 Hun, 605; 12 N. Y. Supp. 45; Murray
V. Usher, 46 Hun, 406; Stoothoff v. Long Island R. Co., 32 Hun,
437; Smith v. Gebhardt, 56 N. Y. St. Rep. 904; People v. Noonan, 38
N. Y. St. Rep. 854; Simmons v. Central New England & W. R. Co.,
51 N. Y. St. Rep. 937; Thorp v. Riley, 57 N. Y. Super. Ct. 589;
Schaft V. Miles, 10 Misc. Rep. 395; Clark v. Smith, 7 Misc. Rep.
572; Van Doren v. JellifEe, 1 Misc. Rep. 354; Smith v. Matthews, 9
Misc. Rep. 427.
(807)
§ 3fa5 INSTRUCTIONS TO JURIES. [Cb. 32
'North Carolina.
Chemical Co. of Canton v. Johnson, 101 N. C. 223; Ware v. Nesblt,
94 N. C. 664; White v. Clark, 82 N. C. 6.
Ohio.
Everett v. Sumner, 32 Ohio St. 562; Berry v. State, 31 Ohio St.
219; Adams v. State, 25 'Ohio St. 584; Kline v. Wynne, 10 Ohio St.
223.
OTclahoma.
Berry v. Smith, 2 Okl. 345.
Oregon.
Kearney v. Snodgrass, 12 Or. 311.
South Carolina.
McPherson v. McPherson, 21 S. C. 267; Sullivan v. Sullivan, 20 S.
C. 511.
Washington.
Cunningham v. Seattle Electric Ry. & Power Co., 3 Wash. 471;
State V. Williams, 13 Wash. 335; Seattle & M. Ry. Co. v. Gilchrist,
4 Wash. 509; Johnson v. Tacoma Cedar Lumber Co., 3 Wash. 722;
Brown v. Forest, 1 Wash. T. 201; Smith v. United States, 1 Wash.
T. 262.
Wisconsin.
Hawley v. Harran, 79 Wis. 379; Manegold v. Grange, 70 Wis. 575;
Tomlinson v. Wallace, 16 Wis. 224; Bogert v. Phelps, 14 Wis. 88.
XJnited States.
Tucker v. United Stp,tes, 151 U. S. 164; Hedden v. Iselin, 142 U. S.
676; Gibhs v. Consolidated Gas Co. of Baltimore, 130 U. S. 396;
Stewart v. Wyoming Cattle Ranche Co., 128 U. S. 383; Hanna v.
Maas, 122 U. S. 24; Cohen v. West Chicago St. Ry. Co. (C. C. A.)
60 Fed. 698; Little Rock Granite Co. v. Dallas County (C. C. A.) 66
Fed. 522; Sutherland v. Round (C. C. A.) 57 Fed. 467; Colorado
Cent. Consolidated Min. Co. v. Turck (C. C. A.) 54 Fed. 262.
Exceptions tQ refusal of instructions necessary.
California.
People V. Northey, 77 Cal. 618; Leahy v. Southern Pac. R. Co., 65
Cal. 151.
Illinois.
East St. Louis Electric Ry. Co. v. Stout, 150 111. 9; Burns v.
(SOS)
Ch, 33J REVIEW ON APPEAL. § 366
People, 126 111. 282; Krug v. Ward, 77 III. 603; Phillips v. Abbott,
52 111. App. 328; McPherson v. Hall, 44 111. 264; Burkett v. Bond, 12
111. 87.
Indiana.
Horner v. Hoadley, 97 Ind. 600; Stewart v. Murray, 92 Ind. 543.
lotoa.
State V. Brewer, 70 Iowa, 384.
Kansas.
Keeling v. Kuhn, 19 Kan. 441.
Massachusetts.
Bonino v. Caledonio, 144 Mass. 299.
Nebraska.
City of Omaha v. McGavock, 47 Neb. 313; City of Kearney t.
Smith, 47 Neb. 408.
Texas.
Shaw V. State (Tex. Cr. App.) 33 S. W. 1033; Ward T. State (Tex.
Cr. App.) 29 S. W. 274.
Wisconsin.
Thrasher v. Postel, 79 Wis. 503.
United States.
Little Eook Granite Co. v. Dallas County (C. C. A.) 66 Fed. 522.
§ 366. Sufficiency of exceptions.
Two simple rules determine the sufficiency of exceptions
to present for review on appeal the giving or refusal of in-
structions. The first is that the exceptions must be specific ;
the second, which is perhaps but an application of the first,
is that the 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. The decisions upon these
two propositions will be considered in order.
(1) The rule that exceptions must specifically point out
the alleged error complained of results naturally from the
principle already considered, that only such errors will be
considered on appeal as were called to the attention of the
(809)
g 366 INSTRUCTIONS TO JURIES. [Ch. 32
trial court.^" "A party excepting must make his exception
so specific that the matter relied on as error will be apparent
to his adversary, and to the primary court. For his adver-
sary, 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 satis-
fied of the error, into which it may have fallen through inad-
vertence, and could voluntarily correct it by a reversal of its
rulings, and thus protect the party excepting from aU in-
jury."^^ Accordingly, an exception generally "to the ruling
of the court in not permitting the cause to go to the jury
upon the questions of fact involved" is insufficient, where no
particular question of fact is specified.^^ So is an excep-
tion "to such portions of a charge" as are variant from the re-
quests made, the variance not being pointed out.^^ An objec-
tion to the whole of an instruction defining the duty an em-
ployer owes to an employe as to the safety of the place for
working is insufficient to raise the point that the word "rea-
so Supra, § 363.
31 Irvin V. State, 50 Ala. 181. See, also, Jacobs v. Mitchell, 2 Colo.
App. 456. An exception to a charge of the court should point to
the very error complained of, that, if committed inadvertently, it
may he corrected. Bills v. People, 21 How. Pr. (N. T.) 356. Ex-
ceptions to the charge -which do not clearly and specifically point
out the objectionable part cannot be sustained. Washington & G.
R. Co. v. Varnell, 98 U. S. 479; Connecticut Mut. Life Ins. Co. v.
Union Trust Co., 112 U. S. 250; Burton v. West Jersey Ferry Co.,
114 U. S. 474. In Texas, "all that is required is that general ex-
ception 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 oppor-
tunity to correct the charge, if so desired." Phillips v. State, 19
Tex. App. 158, 165.
S2 Guggenheim v. Kirchhofer (C. C. A.) 66 Fed. 755.
83 Beaver v. Taylor, 93 U. S. 46.
(810)
Ch. 32] REVIEW ON APPEAL. § 36|5
sonably" was omitted b&fore the word "safe."^* Ko question
as to the correctness of the instructions is presented for re-
view hy an exception to the verdict or findings as beiqg con-
trary to the instructions or unsupported by the evidence.***
Failure to comply with a statute requiring the word "given"
to be written in the margin jg not available error ,und6r a
general exception.^* An exception to the entire charge oa
the ground that the court presented the case in a .manner cal-
culated to prejudice the jury against 'the accused should indi-
cate some particular in which harm was done.^^ Additional
illustrations of the rule might be multiplied almost without
end.^^ Upon obvious principles, only those grounds of ex-
84 Western Coal & Mln. Co. v. Ingraham (.C. C. A.) 70 Fed. 219. 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 ths Injury, by remaining in a caboose after
the train broke loose, and the conductor, who had sent 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 gen-
eral. Newport News & M. & V. Co. v. Pace, 158 U. S. 36, 39 L. Ed.
887, 15 Sup. Ct. 743.
86 Floyd V. Ricks, 11 Ark. 454; Britt v. Aylett, 11 Ark. 475; Carl-
son V. Dow, 47 Minn. 335.
88 The exception must assign that specific ground. Omaha & F.
Land & Trust Co. v. Hansen, 32 Neb. 449.
3' State V. Varner, 115 N. C. 744.
88 The following cases present good Illustrations of the rule:
Western Coal & Min. Co. v. Ingraham (C. C. A.) 70 Fed. 219; Allis
V. United States, 155 U.'S. 117; People v. Upton, 29 N. Y. St. Rep.
777; Greene v. Duncan, 37 S. C. 239; Dobson v. Cothran, 34 S. C.
518; State v. Davenport, 38 S. C. 348; Hamilton v. Great Falls St.
Ry. Co., 17 Mont. 834; Shober v. Wheeler, 113 N. C. 370; Benson v.
Lundy, 52 Iowa, 265; People v. Thlede, 11 Utah, 241; Holman v.
Herscher (Tex.) 16 S. W. 984. See, also, the cases collected In
digest note infra, § 368. Objections that the court below did not
review and analyze the evidence, a,nd did not instruct the jury suffi-
ciently as to the rules for weighing the value of testimony, are
not sufficiently specific. Gra,ntz v. Price, 130 Pa. 415. A general
exception to a charge that testimony of any witnesses found by the
(811)
§ 366 INSTRUCTIONS TO JURIES. [Ch. 32
ception will be considered on appeal which were stated to the
trial court.^*
In a few states the rule requiring exceptions to be specific
does not prevail.*" In Iowa, before the Code, a general ex-
ception was not sufficient, but under the Code where excep-
tions are taken to instructions to the jury at the time they are
given, the ground of exception need not be stated ;*^ but if the
exceptions are not taken until after verdict, then the Code
expressly requires that the exception shall specify the part of
the instruction objected to, and the ground of the objection.*^
jury to have sworn falsely may be disregarded unless corroborated
is not sufBciently explicit as an exception to the court's omission of
the words "knowingly .and willfully." Dallemand v. Janney, 51
Minn. 514. "A general objection will be insuflElcient where the spe-
cial 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. Matthews v.
Clough (N. H.) 49 Atl. 637.
89 Price V. Burlington, C. R. & N. R. Co., 42 Iowa, 16; Sanford v.
Gates, 38 Kan. 405; Richmond v. Second Ave. R. Co., 76 Hun (N.
Y.) 233; Phipps v. Pierce, 94 N. C. 514; Cole v. Curtis, 16 Minn.
182 (Gil. 161) ; Grier v. Hazard, Hazard & Co., 39 N. Y. St. Rep. 74.
So, an exception to one instruction raises no question as to another
instruction, which was not excepted to. Ryall v. Central Pac. R.
Co., 76 Cal. 474. See, also, Varnum v. Taylor, 10 Bosw. (N. Y.)
148.
*o Williams v. Com., 80 Ky. 313; McCreery v. Everding, 44 Cal.
246; Shea v. Potrero & B. V. R. Co., 44 Cal. 414; Woods v. Berry, 7
Mont. 195; Sexton v. School Dist. No. 34, 9 Wash. 5; City of Cin-
cinnati V. Anderson, 19 Ohio Cir. Ct. R. 603, 10 Ohio Cir. Dec. 522
1 construing Rev. St. § 5298).
*iVan Pelt v. City of Davenport, 42 Iowa, 308; Hale v. Gibbs, 43
Iowa, 380; Johnson v. Chicago, R. I. & P. R. Co., 51 Iowa, 25; Wil-
liams V. Barrett, 52 lowa^ 637.
42 Miller v. Gardner, 49 Iowa, 234; Byford v. Girton, 90 Iowa, 661;
Benson v. Lundy, 52 Iowa, 265. See, also, infra, this section, aa
(812)
Ch. 32J REVIEW ON APPEAL. § 366
(2) Under the rule above mentioned, that exceptions
should be taken separately to the specific instructions or parts
of thQ charge claimed to be erroneous,*^ it is held that a gen-
eral exception to the whole charge only raises the question as
to its correctness as a whole.** If the charge consists of a
to exceptions to refusal of instructions. An exception after ver-
dict, which specifies, as the objection, that the instructions are "not
applicable, and are not the law applicable to the case," is not spe-
cific enough. Miller v. Gardner, supra.
*3 See cases collected in digest note, infra, § 368.
"Florida: May v. Gamble, 14 Fla. 467.
Idaho: Snyder v. Viola Min. & Smelting Co., 2 Idaho, 771.
Iowa: Eddy v. Howard, 23 Iowa, 175.
Kansas: Hentig v. Kansas Loan & Trust Co., 28 Kan. 617; Wheel-
er T. Joy, 15 Kan. 389; Ferguson v. Graves, 12 Kan. 39.
Nebraska: Redman v. Voss, 46 Neb. 512.
New York: Cronk v. Canfield, 31 Barb. 171.
Ohio: Weber v. Wiggins, 11 Ohio Cir. Ct. R. 18.
Wisconsin: Buffalo Barb Wire Co. v. Phillips, 67 Wis. 129.
An objection to "each and every" part of a charge, or substantially
to that effect, will be overruled unless the charge or part to which
such exception is directed is wholly erroneous. ' Mayberry v. Leech,
58 Ala. 339; Cavallaro v. Texas & P. Ry. Co., 110 Cal. 348; Moore v.
Moore (Cal.) 34 Pac. 90; Edwards v. Smith, 16 Colo. 529; Keith
V. Wells, 14 Colo. 321; McAllister v. Bngle, 52 Mich. 56; ShuU v.
Raymond, 23 Minn. 66; Foster v. Berkey, 8 Minn. 351 (Gil. 310) ;
Caldwell v. Murphy, 11 N. Y. 41S; Jones v. Osgood, 6 N. Y. 233;
Piper V. New York Cent. & H. R. R. Co., 89 Hun (N.Y.) 75; Banbury
V. Sherin, 4 S. D. 88; Block v. Darling, 140 U. S. 234; Scoville v.
Salt Lake City, 11 Utah, 60; Meeker v. Gardella, 1 Wash. 139; Yates
V, Bachley, 33 Wis. 185; Luedtke v. Jeffery, 89 Wis. 136. Contra,
Dady v. Condit, 188 111. 234, reversing 87 lU. App. 250; Kansas Pac.
R. Co. V. Nichols, 9 Kan. 235; Lorie v. Adams, 51 Kan. 692. The addi-
tion of such words as "specifically," People v. Bristol, 23 Mich. 118;
or "severally and separately," Syndicate Ins. Co. v. Catchings, 104
Ala. 176; Kirby v. State, 89 Ala. 63; Edgell v. Francis, 86 Mich.
232; or "every line, sentence, and paragraph," Danielson v. Dyck-
man, 26 Mich. 169, — adds nothing to the force of such an exception,
and it will nevertheless be overruled if any portion of the charge
(813"
§ 366 INSf RUCTIONS TO JURIES. [(Jh. 32
series of distinct propositions or instructions, any one of
■wMcli is correct, a general exception to the whole charge must
be overruled.*^ And the same rule applies where the ex-
ception is to the whole or a part of the charge, which part it-
self contains more than one proposition.** Where, however,
the whole charge or part excepted to amounts merely to the
assertion of a single proposition, a general exception is suf-
ficient to present the question of the correctness of such prop-
osition. *''
These principles apply to the erroneous refusal of instruo-
is correct Western Assur. Co. of Toronto v. Polk (C, C. A.) 104
Fed. 649; Beals v. Cone, 27 Colo. 473.
46 It is only to this extent that the court will examine the instruc-
tions under a general exception to the whole charge. Oltmanns v.
Pindlay, 47 Neb. 289; City of Omaha v. McGavock, 47 Neb. 313. See,
also, cases collected in digest note, infra, § 368.
*« Alabama: Rice v. Schloss, 90 Ala. 416; Dick y. State, 87 Ala. 61.
Colorado: Beals v. Cone, 27 Colo. 473.
Florida: John D. C. v. State, 16 Pla. 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 Or. 307.
Utah: Beaman v. Martha Washington Min. Co. (Utah) 63 Pac. 631.
Vermont: Dickerman v. Quinoy Mut. Fire Ins. Co., '67 Vt. 609.
Washington: Hughes v. Heyman, 22 Wash. Law Rep. 737; Rush
V. Spokane Falls & N. Ry. Co. (Wash.) 63 Pac. 500.
Wisconsin: Corcoran v. Harran, 55 Wis. 120.
An exception to so much of the charge as is inclosed in brackets
(Tucker v. Salem Flouring Mills Co., IS Or. 581), or to so much
as is not inclosed in brackets (Crosby v. Maine Cent. R. Co., 69 Me.
418), must be overruled, unless the whole of the designated parts
is erroneous. See, also, Bouck v. Enos, 61 Wis. 660; Bigelow V.
West Wis. Ry. Co., 27 Wis. 478; Stroud v. State, 55 Ala. 77.
47 Smith V. Matthews, 9 Misc. Rep. ,(N. Y.) 427; Nickum v. Gas-
ton, 24 Or. 380; Boyce v. Wabash Ry. Co., 63 Iowa, 70; Requa v.
Holmes, 16 N. Y. 193; Haun v. Rio Grande W. Ry. Co., 22 Utah,
346.
(814)
Q^_ 32] REVIEW ON APPHAL. g 366
tions, as well as to the giving of erroneous instructions. There-
fore, 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 properly refused.** 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.** There would
seem to be less reason for applying the rule to the case of a re-
fusal of a request for several specific instructions 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 excep-
tion, and this is the rule in a few states.^"
In the federal courts, the practice is governed by a rule
of the supreme court,^^ which directs: "The judges of the
circuit and district courts shall not allow any bill of excep-
tions which shall contain the charge of the court at large to
the jury, in trials at common law, upon any general excep-
tion to the whole of such charge; but the party excepting
shall be required to state distinctly the several matters of
*s See cases collected In digest note, infra, § 368.
*^ Strohn v. Detroit & M. R. Co., 23 Wis. 126; Ocheltree v. McClung,
7 W. Va. 232. It has been held, however, that, when only one of
plaintiff's requests was refused, a general exception is suiBcient.
Sellers v. Hancock, 42 S. C. 40. Where a requested instruction con-
tains propositions which might properly be given, but in connec-
tion with other propositions which should be refused, the whole in-
struction is properly refused, and a general exception is of no avail.
People V. Holms, 6 Parker, Cr. R. (N. Y.) 25; Marshall v. Oakes,
51 Me. 308.
50 See Weber v. Kansas City Cable Ry. Co., 100 Mo. 194. In Iowa,
provided the exception is- taken at the time a request for several
instructions is refused, a general exception will be. sufficient to
raise the question of error in refusing any one of them. Eyser v.
Weissgerber, 2 Iowa, 463, 486; Davenport Gas Light & Cokfe Co. v.
City of Davenport, 13 Iowa, 229; Williamson v. Chicago, R. I. &
P. R. Co., 53 Iowa, 126; Harvey v. Tama County, 53 Iowa, 228.
"1 See rule 8 of supreme court rules in 100 Mo. 194.
(815).
§ 367 INSTRUCTIONS TO JURIES. [Ch. 32
law in sTicli charge to whicli lie 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.^^ The
rule has sometimes been held to be even stricter than as here
laid down, and it has been held that a general exception to
an entire charge containing several propositions is insuffi-
cient to raise any question on appeal, either as to the suffi-
ciency or insufficiency of the instructions.®^
§ 367. Same — Digest of decisions.
Exceptions must specify error particularly.
GaUfornda.^
Frost V. Grizzly Bluff Creamery Co., 102 Cal. 525; Glllaspie v.
Hagans, 90 Cal. 90.
Colorado.
City of Denver t. Hyatt, 63 Pao. 403.
District of ColumMa.
Thomas v. Presbrey, 23 Wash. Law Rep. 123; Bell v. Sheridan,
21 D. C. 370.
Georgia.
Whelan v. Georgia Midland & G. R. Co., 84 Ga. 506; Fordham t.
State, 112 Ga. 228; Barber v. State, 112 Ga. 584; Central of Georgia
Ry. Co. V. Bond, 111 Ga. 13.
Indiana.
Baker t. McGinniss, 22 Ind. 257.
Iowa.
Davenport Gas Light & Coke Co. v. City of Davenport, 13 Iowa,
229; Abbott v. Striblen, 6 Iowa, 191.
»2 Price T. Pankhurst, 10 U. S. App. 497, 53 Fed. 312.
63 State V. Staley, 14 Minn. 105 (Gil. 75); Baldwin v. Blanchard,
15 Minn. 489 (Gil. 403); Judson v. Rearcion, 16 Minn. 431 (Gil.
387) ; Person v. Wilcox, 19 Minn. 449 (Gil. St.S).
(816)
Cb. 32J REVIEW ON APPEAL. S 3t)/
Kansas.
Stlth V. Kullln-wider, 40 Kan. 74; State v. Gurnee, 14 Kan, 111;
Sanford v. Gates, 38 Kan. 405.
Louisiana.
State V. Chopin, 10 La. Ann. 458.
Massachusetts.
Rock V. Indian Orchard Mills, 142 Mass. 522; Emmons v. Alvord,
177 Mass. 466.
Michigan.
Keystone Lumber & Salt Mfg. Co. v. Dole, 43 Mich. 370.
Minnesota.
Elmborg v. St. Paul City Ry. Co., 51 Minn. 70; Dallemand v. Jan-
ney, 51 Minn. 514; Bishop v. St. Paul City Ry. Co., 48 Minn. 26;
Larrabee v. Minnesota Tribune Co., 36 Minn. 141; Clapp v. Minnne-
apolis & St. L. R. Co., 36 Minn. 6; 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, 49 Atl. 637.
New York.
Mattice v. Wilcox, 147 N. Y. 624; Grier v. Hazzard, Hazzard &.
Co., 39 N. Y. St. Rep. 74; Ellis v. People, 21 How. Pr. 356; Wyman
V. Hart, 12 How. Pr. 122; Pratt v. Poote, 9 N. Y. 463.
North Carolina.
Kendrick v. Dellinger, 117 N. C. 491; Everett v. 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; Williams v. Johnston, 94 N. C. 633; State v. Gardner, 94 N.
C. 953.
Ohio.
Moody V. Thomas, 1 Disn. 294; Serviss v. Stockstill, 30 Ohio St.
418.
Oregon.
Kearney v. Snodgrass, 12 Or. 317.
Pennsylvania.
Grantz v. Price, 130 Pa. 415.
(817)
B. — ^Ins. to Juries.
§ 367 INSTRUCTIONS TO JURIES. [Ch. 32
I
South Carolina.
Davis V. Elmore, 40 S. C. 533; Norton v. Livingston, 14 S. C, 178.1
i
Texas.
Qulntana v. State, 29 Tex. App. 401.
Vermont.
Goodwin v. Perkins, 39 Vt. 598.
Washington.
Maling V. Crummfey, 5 Wash. 222.
"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; Cleveland, C, C.
& St. L. Ry. Co. V. Zider, 61 Fed. 908.
The objection that instructions were given at an improper time is
not raised by a general exception to all the instructions. City of
Topeka V. Heitman, 47 Kan. 739. "An assignment of error to the
effect that the charge of the 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 appearing to the court, is not available." Emerson v. Ross'
Ex'x, 17 Fla. 122. An exception to the portions of the charge on
the measure of damages is sufliciently 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. Wales v.
Pacific Electric Motor Co., 130 Cal. 521. A mere exception, while
it challenges the correctness of an instruction, does not point out
specifically wherein it is incorrect. But if instructions are para-
graphed, an exception to each separate paragraph may be sufBcient.
City of Denver v. Hyatt (Colo.) 63 Pac. 403. An objection that an
instruction abstractly correct was inapplicable to the case must
point out how and why it was inappropriate. Central of Georgia
Ry. Co. V. Bond, 111 Ga. 13. An objection that an instruction con-
tains an assumption of fact must call attention to the specific
ground of the objection. Emmons v. Alvord, 177 Mass. 466.
Exceptions must be taken separately and not en masse — Instruc-
tions given.
Exceptions must be taken separately to each instruction or por-i
(818)
Ch. 32] REVIEW ON APPEAL. § 367
tlon of the charge complained of.'aa An Exception to the "refusal
and charge of the court," where the whol6 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 cov-
ered by the general charge, is insufficient. Jones v. Bast Tennessee,
V. & d. R. Co., 157 U. S. 682. Where the re6ord reads as follows:
"At the time of reading the abote Instructions to the jury, the de-
fendant 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. Atchlsofl, T. & S. F. R. Co. v. Retford, 18
Kan. 24s. An exception to several propositions in mass is insuffl-
63a Alabama: 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. McLendon, 63 Ala. 266; Gray
V. State, 63 Ala. 66; Bernstein v. Humes, 60 Ala. 582; South & N.
A. R. Co. V. Jones, 56 Ala. 507; Caldwell v. Parmer's Adm'r, 56 Ala.
405; Jacobson v. State, 55 Ala. 151; Holland v. Barnes, 53 Ala. 83;
Cohen v. State, 50 Ala. 108; Irvin v. State, 50 Ala. 181.
California: Brown v. Kentneld, 50 Cai. 129; Shea v. Potrero &
B. V. R. Co., 44 Cal. 414.
Colorado: Coon v. Rigden, 4 Colo. 275.
Georgia: Central Railroad & Banking Co. v. Ogletree, 97 Ga. 325;
Thomas v. State, 84 Ga. 613; Rogers v. Rogers, 74 Ga. 598; Smith
Illinois: Hasklns v. Haskins, 67 111. 446.
V. Atwood, 14 Ga. 402.
Indiana: Sherlock v. First Nat. Bank of Bloomington, 53 Ind. 73.
Kansas: Young v. Youngman, 45 Kan. 65; Fullenwider V. Ewing,
25 Kan. 69; Wheeler v. Joy, 15 Kan. 389.
Maine: State v. Pike, 65 Me. Ill; State v. Flaherty (MS.) S Atl.
563, 2 New Eng. Rep. 699.
Massachusetts: Hunting v. Downer, 151 Mass. 275.
Michigan: Geary v. People, 22 Mich. 220.
Minnesota: Rheiner v. Stillwater St. Railway & Transfer Co.,
h Minn. 193.
Montana: Gassert v. Bogk, 7 Mont. 585; Alderson v. Marshall,
7 Mont. 288; Woods v. Berry, 7 Mont. 195; Gum v. Murray, 6 Mont.
10; Griswold v. Boley, 1 Mont. 545.
Nebraska: Brooks v. Dufcher, 22 Neb. 644; Dodge V. People, 4
Neb. 220.
New Jersey: Engle v. State, 50 N. J. Law, 272.
New Mexico: Probst v. Trustees of Board of Domestic Missions,
3 N. M. 373.
(819)
§ 673 INSTRUCTIONS TO JURIES. [Ch. 32
cient if any one of them Is correct.ssb An exception to a charge In
its entirety, and "to tlie following portions thereof," followed
by a series or ten or more propositions embracing substantially all
New York: People v. Schooley, 89 Hun, 391; Deitch v. Sohannlng,
38 N. Y. St. Rep. 362; Wallace v. "Williams, 37 N. Y. St. Rep. 812;
Booth V. Swezey, 8 N. Y. 276.
North Carolina: Hemphill v. Morrison, 112 N. C. 756; Ward v.
Albemarle & Raleigh R. Co., 112 N. C. 168; State v. Brabham, 108
N. C. 793; Thompson v. Western Union Tel. Co., 107 N. C. 449;
Everett v. Williamson, 107 N. C. 204; State v. McDuffie, 107 N. C.
885; State v. Harrell, 107 N. C. 944; State v. Howell, 107 N. C. 835;
State V. Parker, 106 N. C. 711; Lindsey v. Sanderlin, 104 N. C. 331;
Carlton v. Wilmington & Weldon R. 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; McDonald v. Carson, 94 N. C. 497.
Ohio: Behrens v. Behrens, 47 Ohio St. 323; Powers v. Hazelton
& L. Ry. Co., 33 Ohio St. 429; Western Ins. Co. of Cincinnati v.
Tobin, 32 Ohio St. 77; Everett v. Sumner, 32 Ohio St. 562; Pitts-
burgh, Ft. W. & C. Ry. V. Probst, 30 Ohio St. 104; Butcher's Melting
Ass'n V. Commercial Bank of Cincinnati, 2 Disn. 46.
South Carolina: Bauskett v. Keitt, 22 S. C. 200; Walker v. Walk-
er, 17 S. C. 338; Paris v. Dupre, 17 S. C. 288; Lanier v. ToUeson,
20 S. C. 62; State v. Gilreath, 16 S. C. 105; Norton v. Livingston,
14 S. C. 177.
Texas: Thompson v. State, 32 Tex. Cr. App. 265; Gonzalez v.
State, 30 Tex. App. 203; Graham v. State, 29 Tex. App. 31; Eddy v.
Still, 3 Tex. Civ. App. 346.
Utah: Haun v. Rio Grande W. Ry. Co. (Utah) 62 Pac. 908.
Vermont: Goodwin v. Perkins, 39 Vt. 598.
Washington: Patchen v. Parke & Lacy Mach. Co., 6 Wash. 486;
Rush V. Spokane Falls & N. Ry. Co. (Wash.) 63 Pac. 500.
Wisconsin: 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; Block v.
Darling, 140 U. S. 234; Burton v. West Jersey Ferry Co., 114 U. S.
474; Connecticut Mut. Life Ins. Co. v. Union Trust Co., 112 U. S.
250; Mobile & M. Ry. Co. v. Jurey, 111 U. S. 584; Washington & G.
R. Co. V. Varnell, 98 U. S. 479; Thom v. Pittard (C. C. A.) 62 Fed.
232; St. Louis, I. M. & S. Ry. Co. v. Spencer (C. C. A.) 71 Fed.
93; Price v. Pankhurst, 10 U. S. App. 497.
68b Alabama: Mobile & O. R. Co. v. George, 94 Ala. 199; Bell v.
(820)
Ch. 32] REVIEW ON APPEAL. § 367
the charge, except the statement of the case, is not available If any
one of the portions excepted to is good. Vider v. O'Brien, 10 C. C.
A. 385, 18 U. S. App. 711, 62 Fed. 326. In the following cases, the
exceptions, though couched in varying language, were held to be
substantially to the whole charge, and too general to raise any ques-
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. R. Co. v. Gary, 81
Ala. 159; Mayberry v. Leech, 58 Ala. 339; Irvin v. State, 50 Ala. 181;
Arkansas: Dunnington v. Frlck Co., 60 Ark. 250; Oxley Stave
Co. V. Staggs, 59 Ark. 370; Fordyce v. Russell, 59 Ark. 312; Quer-
termous v. Hatfield, 54 Ark. 16; Atkins v. Swope, 38 Ark. 528; Murphy
V. Lemay, 32 Ark. 223.
California: Cavallaro v. Texas & P. Ry. Co., 110 Cal. 348; Cock-
rill V. Hall, 76 Cal. 192; Ryall v. Central Pac. R. Co., 76 Cal. 474.
Colorado: Wooton v. Seigel, 5 Colo. 424; Kansas Pac. Ry. Co. v.
Ward, 4 Colo. 31; Cowell v. Colorado Springs Co., 3 Colo. 82.
District of Columbia: Mackey V.Baltimore, etc., R. Co., 18 Wash.
Law Rep. 7§7.
Florida: Campbell v. Carruth, 32 Fla. 264; Wood v. State, 31
Fla. 221; Smith v. State, 29 Fla. 408; Post v. Bird, 28 Fla. 1; Pinson
V. State, 28 Fla. 735; Burroughs v. State, 17 Fla. 643; Dupuis v.
Thompson, 16 Fla. 69; John v. State, 16 Fla. 554; May v. Gamble,
14 Fla. 467.
Georgia: Willis v. State, 93 Ga. 208; Ozburn v. State, 87 Ga. 173;
Verdery y. Savannah, F. & W. Ry. Co., 82 Ga. 675; Flemister v.
State, 81 Ga. 768; Enright v. City of Atlanta, 78 Ga. 288; Blackman
V. State, 78 Ga. 592; Malone v. Robinson, 77 Ga. 719; Cobb v. State,
76 Ga. 664.
Illinois: Hickam v. People, 137 111. 76; Hayward v. Catton, 1 111.
App. 577.
Indiana: State v. Gregory, 132 Ind. 387; Sherlock v. First Nat.
Bank of Bloomington, 53 Ind. 73; Garrigus v. Burnett, 9 Ind. 528;
Kelly V. John, 13 Ind. App. 579'; Buohart 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; Ruter v. Foy, 46 Iowa, 132; Moore v. Gilbert, 46 Iowa,
508; Bartle v. City of Des Moines, 38 Iowa, 414; Cook v. Sioux City
& P. R. 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; Redman v. Malvin, 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.
(821)
§ 367 INSTRUCTIONS TO JURIES. [Ch. 32
tlon unless the charge was wholly erroneous. Jones v. Bast Ten-
nessee, V. & G. R. Co., 157 U. S. 682; Hallenbeck v. Garst, 96 Iowa,
509; Vider v. O'Brien (C. C. A.) 62 Fed. 326; State v. Wilgus, 32
Kan. 126; Strader v. Marietta & C. R. Co., 2 Cin. R. 268. An ex-
Thompson, 16 Iowa, 62; Cousins v. Westcott, 15 Iowa, 253; Arm-
strong V. Plerson, 15 Iowa, 476; Jack v. Naber, 15 Iowa, 450; Daven-
port Gas Light & Coke Co. v. City of Davenport, 13 Iowa, 229;
Loomis V. Simpson, 13 Iowa, 532.
Kansas: Crosby v. Wilson, 53 Kan. 565; Fleming v. Latham &
Co., 48 Kan. 773; Ryan v. Madden, 46 Kan. 245; Myer v. Moon, 45
Kan. 580; Stith v. FuUinwider, 40 Kan. 73; Fullenwider v. Ewing,
25 Kan. 69; Bard v. Elston, 31 Kan. 274.
Maine: Crosby v. Maine Cent. R. Co., 69 Me. 418; Macintosh v.
Bartlett, 67 Me. ISO; Merrill v. Merrill, 67 Me. 70.
Massachusetts: Com. v. Tolman, 149 Mass. 229; Adams v. In-
habitants of Chicopee, 147 Mass. 440; Dwyer v, Fuller, 144 Mass.
420; Curry v. Porter, 125 Mass. 94; Armour v. Pecker, 123 Mass. 143.
Michigan: Bdgell v. Francis, 86 Mich. 232; McAllister v. Engle,
52 Mich. 56; Prescott v. Patterson, 49 Mich. 622; Hopkins Mfg. Co.
V. Aurora F. & M. Ins. Co., 48 Mich. 148; McKay v. Evans, 48 Mich.
597; Goodsell v. Seeley, 46 Mich. 623; Wheeler & Wilson Mfg. Co. v.
Walker, 41 Mich. 239; Lange v. Kaiser, 34 Mich. 317; Danielson v.
Dyckman, 26 Mich. 169; Tupper v. Kilduff, 26 Mich. 394; Mandigo
v. Mandigo, 26 Mich. 849; People v. Garbutt, 17 Mich. 9.
Minnesota: Main v. Oien, 47 Minn. 89; Russell v. St. Paul, M. &
M. Ry. Co., 33 Minn. 210; Shull v. Raymond, 23 Minn. 66; Person 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.
Nebraska: Bankers Life Ass'n v. Lisco, 47 Neb. 340; Hedrick v.
Strauss, 42 Neb. 485; Gillilan v. Rollins, 41 -Neb. 540; 'First Nat.
Bank of Denver v. Lowrey, 36 Neb. 290; Walker v. Turner, 27 Neb.
103; Russel v. Rosenbaum, 24 Neb. 769; Brooks v. Dutcher, 22 Neb.
644; Tagg v. Miller, 10 Neb. 442.
New Hampshire: Reynolds v. Boston & M. R. Co., 43 N. H. 580.
New Jersey: Bngle v. State, 50 N. J. Law, 272; Oliver v. Phelps,
21 N. J. Law, 597.
New York: Wells v. HigginS, 132 N. Y. 459; Newall v. Bartlett,
114 N. Y. 399; Patton v. Royal Baking Powder Co., 114 N. Y. 1;
Stone V. T^estern Transp. Co., 38 N. Y. 240; Magie v. Baker, 14 N.
Y. 435; Oldfleld v. New York & H. R. Co.; 14 N. Y. 310; Decker v.
(822)
Ch. 32] REVIEW ON APPEAL. § 367
ceptlon that "the court erred In giving to the Jury instruction No.
— , and to the giving of which plaintiff duly excepted," is a gen-
eral exception, and cannot be considered unless the whole instruc-
tion is incorrect. Haun v. Rio Grande W. Ry. Co., 22 Utah, 346.
Mathews, 12 N. Y. 813; Caldwell v. Murphy, 11 N. Y. 416; Rowland
V. Wllletts, 9 N. Y. 170; Acker v. Ledyard, 8 N. Y. 62; Hart v.
Rensselaer & S. R. Co., 8 N. Y. 37; Hunt v. Mayhee, 7 N. Y. 266;
Jones V. Osgood, 6 N. Y. 233; Haggart v. Morgan, 5 N. Y. 422; Cronk
V. Canfleld, 31 Barb. 171; Robinson v. New York &,E. R. Co., 27
Barb. 512; Elton v. Markham, 20 Barb. 343; McBurney v. Cutler,
18 Barb. 203; Fitch v. Livingston, 7 How. Pr. 410; French v. White,
5 Duer, 254; Gundlin v. Hamburg-American Packet Co., 31 Abb. N.
C. 437, 8 Misc. Rep. 291; Snell v. Snell, 3 Abb. Pr. 426; East River
Bank v. Gedney, 4 E, D. Smith, 582; Garland v. Day, 4 E.D. Smith,
251.
North Carolina: Hooks v. Houston, 109 N. C. 623; Hammond v.
Schiir, 100 N. C. 161; Dugger v. McKesson, 100 N. C. 1; Leak v.
Covington, 99 N. C. 559; Sellers v. Sellers, 98 N. C. 13; Caudle v.
Fallen, 98 N. C. 411; Boggan v. Home, 97 N. C. 268.
Ohio: Berry v. State, 31 Ohio St. 219; Adams v. State, 25 Ohio
St. 584; Wright v. Denham, 2 Cleve. Law Rep. 146.
Texas: Gross v. Hays, 73 Tex. 515; Peace v. State, 27 Tex. App.
83; Cordway v. State, 25 Tex. App. 405.
Utah: People V. Hart, lO Utah, 204.
Vermont: Rowell v. Puller's Estate, 59 Vt. 688.
Washington: Lichty v. Tannatt, 11 Wash. 37.
Wisconsin: Green v. Hanson, 89 Wis. 597; Kessler's Estate, 87
Wis. 660; Hulehan v. Green Bay, W. & St. P. R. Co., 68 Wis. 520;
C. Aultman & Co. v. Case, 68 Wis. 612; Bouck v. Enos, 61 Wis. 660;
Dean v. Chicago & N. W. Ry. Co., 43 Wis. 305; Nlsbet v. Gill, 38
Wis. 657; Butler v. Cams, 37 Wis. 61; Sabine v. Fisher, 37 Wis. 376;
Musgat V. WyhTO, 33 Wis. 515; Strachan v. Muxlow, SI Wis. 207;
Bigelow V. West Wisconsin Ry. Co., 27 Wis. 478; Welsenberg v.
City of Appleton, 26 Wis. 56; Heath v. Heath, 31 Wis. 223; Korso
v. Oilman, 18 Wis. 373; Tomlinson v. Wallace, 16 Wis. 224; Thrasher
v. Tyack, 15 Wis. 256.
United States: Newport News & M. V. Co. v. Pace. i!J8 a. S. 38;
Baltimore & P. R. Co. v. Mackey, 157 U. S. 78; Anthony v. L'^uisvillo
& N. R. Co., 132 U. S. 172; White v. Barber, 123 U. S. 392; Mobile
& M. Ry. Co. V. Jurey, 111 U. S. 584; Worthlngton v. Masou, 101 XT.
S. 149; Cooper v. Schlesinger, 111, U. 3. 148; Beavei? v. TftylOT, M
§ 367 INSTRUCTIONS TO JURIES. [Ch. 32
See, also, Beaman v. Martha Washington Mln. Co. (Utah) 63 Pac-.
631.
Instructions refused.
A general exception to the refusal of a series of instructions,
taken together, and constituting a single request, is improper, and
will not be considered if any one of the propositions be unsound.oso
Illustrations of exceptions held to be too general to present the
question of error in refusing any particular instruction will be
found in the following cases: Pound v. Port Huron & S. W. Ry.
Co., 54 Mich. 13; Read v. Nichols, 118 N. Y. 224; Jumper v. Com-
mercial Bank, 39 S. C. 296. An exception to refusal to give "the
four requests as asked for by defendant," without specifying which
four of eight requests the court refused, is insufficient. Columbia
Mill Co. V. National Bank of Commerce, 52 Minn. 224. Where sev-
eral distinct requests for instructions to the jury have been pre-
sented to the court, most of which were in substance embodied in
U. S. 46; Johnston v. Jones, 1 Black, 209; Lincoln v. Claflin, 7 Wall.
132; Harvey v. Tyler, 2 Wall. 328; Rogers v. Marshal, 1 Wall. 644;
Masonic Benev. Ass'n v. Lyman (C. C. A.) 60 Fed. 498; Walker v.
Windsor Nat. Bank (C. C. A.) 56 Fed. 76; Gulf, O. & S. F. Ry. Co.
V. Johnson (C. C. A.) 54 Fed. 474; McClellan v. Pyeatt, 50 Fed. 686.
Bsc Alabama; Pearson v. Adams (Ala.) 29 So. 977; Teague v.
Llndsey, 106 Ala. 266; Noblin v. State, 100 Ala, 13; Welsh v. State,
97 Ala. 1; Jones v. State, 96 Ala. 102; Nelson v. Warren, 93 Ala.
408; Stitt V. State, 91 Ala. 10; Walker v. State, 91 Ala. 76; Woods
V. State, 76 Ala. 35; Stovall v. Fowler, 72 Ala. 77; Smith v. Sweeney,
69 Ala. 524; Williams v. State, 68 Ala. 551; Kilpatrick v. Pickens
County, 66 Ala. 422; McGehee v. State, 52 Ala. 224.
Kansas: Fleming v. L. D. Latham & Co., 48 Kan. 773; Bailey v.
Dodge, 28 Kan. 72.
Louisiana: Wimbish v. Hamilton, 47 La. Ann. 246.
Massachusetts: Murphy v. McNulty, 145 Mass. 464.
Michigan: Bdgell v. Francis, 86 Mich. 232.
Minnesota: Webb v. Fisher, 57 Minn. 441; Delude v. St. Paul
City Ry. Co., 55 Minn. 63; Rosquist 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. Law, 17.
New York: Bishop v. Village of Goshen, 120 N. Y. 337; Caldwell
Vi Murphy, 11 N. Y. 416; Hunt v. Maybee, 7 N. Y. 266; Jones v.
Osgood, 6 N. Y. 233; Barker v. Cunard Steamship Co., 25 Civ. Proc,
■(824)
Ch. 32] REVIEW ON APPEAL. § 3^8
the general charge, and one of which was erroneous, an "exception
to the refusal of the court to charge the jury as requested" is not
sufficient to authorize a review as to the refusal of any of the spe-
cific requests. State v. Adamson, 43 Minn. 196. Exceptions to cer-
tain "paragraphs" of the charge to the jury are Insufficient when
much, If not all, of the matter embraced In each paragraph is un-
objectionable, and no particular proposition is Indicated by the ex-
ceptions. Rheiner v. Stillwater St. Ry. & T. Co., 31 Minn. 193.
Five distinct requests to charge, separately numbered, were sub-
mitted to the court, who ruled upon — denying or modifying — each
separately. Counsel "excepted to said refusals and modifications
of said instructions as given." It was held that such exception was
sufficiently specific, and would be understood as applying to the rul-
ing on each proposition. Schurmeier v. Johnson, 10 Minn. 319
(Gil. 250)'. See, also. Planters' ' Bank of Prince George's Co. v.
Bank of Alexandria, 10 Gill & J. (Md.) 346.
i 368. Time of taking exceptions.
It is a general rule that exceptions must be taken to the
giving or refusal of instructions at the time they are given
or refused. It will be too late if not taken until after the
jury have retired,^* and consequently it will, of course, be
R. 108; Heath v. Glens Palls, S. H. & Ft. B. St. R. Co., 90 Hun, 560;
Yale V. Curtiss, 71 Hun, 436; Huerzeler v. Central Crosstown R. Co.,
i Misc. Rep. 136.
Ohio: Powers v. Hazelton & L. Ry. Co., 33 Ohio St. 429; Everett
V. Sumner, 32 Ohio St. 562; Voelckel v. Banner Brewing Co., 9 Ohio
Cir. Ct. R. 318.
Oregon: Salomon v. Cress, 22 Or. 17V.
South Carolina: Stackhouse v. Wheeler, 17 S. C. 106.
Utah: Marks v. Tompkins, 7 Utah, 421.
Wisconsin: Welcome v. Mitchell, 81 Wis. 566.
United States: Bogk v. Gassert, 149 U. S. 17; Phoenix Life Ins.
Co. V. Raddin, 120 U. S. 183; Beaver v. Taylor, 93 U. S. 46; City of
Key West v. Baer, 66 Fed. 440; Walker v. Windsor Nat. Bank, 56
Fed. 76; McClellan v. Pyeatt, 50 Fed. 686.
6* Though a statute dispenses with the necessity of taking exceii-
tions to the giving, refusing, or modifying of instructions, the legis-
lature will not be deemed to have intended to do away with the
necessity for making objections In soma appropriate manner, so as
to give to the trial court an opportunity to correct errors. Denver
(825)
I 368 INSTRUCTIONS TO JURIES. [Ch, 32
too late if first taken after verdict,^** or on motion foi* a
new trial,"* although in one jurisdiction, at least, the ex-
ception will be deemed abandoned, and is unavailable unless
& R. G. R. Co. V. Ryan, 17 Colo. 98. See, also, Wray v. Carpenter,
16 Colo. 271; Keith v. Wells, 14 Colo. 321; City of Durango v, Lutt-
rell, 18 Colo. 124. The objection that special instructions given at
the request of the adverse party were not numbered and signed as
required by Mills' Ann. Code Colo. § 187, subd. 5, will not be con-
sidered on a motion for new trial, or on appeal, unless made in apt
time. Moffatt v. Tenney, 17 Colo. 189. Objection to the failure of
the court to number its instructions must be taken at the time the
charge is given. Gibson v. Sullivan, 18 Neb, 558.
So, the rule is the same in regard to marking instructions "Given"
or "Refused." Tagg v. Miller, 10 Neb. 442; Barnewall v. Murrell,
108 Ala. 366; Holley v. State, 75 Ala. 20.
55 Instructions given :
Alabama: Bynum v. Southern Pump & Pipe Co., 63 Ala. 462.
Idaho: State v. O'Donald (Idaho) 39 Pac. 556.
Massachusetts: Leach v. Woods, 14 Pick. 461; Nixon v, Ham-
mond, 12 Gush. 285; Inhabitants of Buckland v. Inhabitants of
Charlemont, 3 Pick. 173.
Minnesota: Barker v. Todd, 37 Minn. 370.
North Carolina: State v. Hart, 116 N. C. 976; Tayloe v. Old Do-
minion Steamship Co., 88 N. C. 15.
Virginia: Washington & N. 0. Telegraph Co. v. Hobson, 15 Grat.
122.
West Virginia: Wustland v. Potterfield, 9 W. Va. 438.
United States: Thiede v. Utah, 159 U. S. 510; Michigan Ins. Bank
T. Eldred, 143 U. S. 293.
Instructions refused:
North Carolina: State v. Debnam, 98 N. C. 712; Davis v. Council,
92 N. C. 725. But see State v. Varner, 115 N. C. 744.
Failure to mark instructions "Given" or "Refused," as required
by statute, cannot be taken advantage of on motion in arrest of
judgment. Holley v. State, 75 Ala. 20. Nor for the first time on
appeal. Fish v. Chicago, R. I. & P. Ry. Co., 81 Iowa, 280; Knight v.
Chicago, R. I. & P. Ry. Co., 81 Iowa, 310.
68 Instructions given:
Arkansas: Carroll v. Bowler, 40 Ark. 168.
Florida: West v. Blackshear, 20 Fla. 457.
Illinois: Illinois Cent. R. Co. v. Modglin, 85 111. 481; Dickhut v.
Durrell, 11 111. 72. Contra, Collins Ice-Cream Co. v. Stephens, 189
(.826)
Ch. 32] REVIEW ON APPEAL. §368
renewed and made the basis of a motion for a new trial.'''
It will be presumed on appeal, in the absence of any show-
ing to the contrary, that the exceptions were taken in proper
time."® In Indiana, 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 excep-
tions to instructions must be taken before the jury have de-
livered their verdict. Whether this is a more liberal 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
111. 200 (decided under Practice Act, § 53).
Indiana: Louisville, N. A. & C. Ry. Co. v. Hart, 119 Ind. 273;
Jaqua v. Cordesman & Egan Co., 106 Ind. 141.
Iowa: Snyder v. Nelson, 31 Iowa, 238; Snyder v. Eldrldge, 31
Iowa, 129; Garland v. Wholebau, 20 Iowa, 271; Curtis v. Hunting, 6
Iowa, 536; Whitney v. Olmstead, 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. Ramho, 95 Mo.
462; State v. Hayden, 61 Mo. App. 662; Gordon v. Gordon, 13 Mo.
215.
North Carolina: Harrison v. Chappell, 84 N. C. 258.
North Dakota: Boss v. Northern Pac. R. Co., 2 N. D. 128.
Tews; . Vanwey v. State, 41 Tex. 639; Goode v. State, 2 Tex. App.
520; Franklin v. State, 2 Tex. App. 8.
Instructions refused :
Florida: Shepherd v. St^te, 36 Fla. 374.
North Carolina: State v. Halford, 104 N. C. 874.
Failure to number the Instructions, as required by statute, cannot
be objected to for the first time on motion for a new trial. Moffatt
V. Tenney, 17 Colo. 189.
67 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
Instructions "Given" or "Refused" must be renewed in motion for
a new trial. Tagg v. Miller, 10 Neb. 442.
BB Strickfaden v. Zlpprick, 49 111. 286; Wakeman v. Lyon, 9 Wend.
(N. y.) 241,
(827)
§ 369 INSTRUCTIONS TO JURIES. [Ch, 32
giving of the instructions."® In Iowa, by statute, exceptions
to either the giving or refusal of instructions may he taken
within three days after verdict.*** In Mississippi, the objec-
tion may be taken in a motion for a new trial,*^ and in South
Dakota and Illinois the exception may be taken at any time
before final judgment is entered.®^ In l^orth Dakota, the
judge "has power to extend the time within which exceptions
to a charge may be taken, either before or after such time has
elapsed."®'
§ 369. Same — ^Digest of decisions.
Instructions given must 6e excepted to tefore the jury retire.
Alabama.
Reynolds v. State, 68 Ala. 507; City Council of Montgomery v. Gil-
mer, 33 Ala. 116.
California.
Garoutte v. Williamson, 108 Cal. 135; Mallett v. Swain, 56 Cal. 171.
Colorado.
McFeters v. Pierson, 15 Colo. 201; Taylor v. Randall, 3 Colo. 399;
Smith V. Cisson, X Colo. 29.
Florida.
Gibson v. State, 26 Fla. 109; Baker v. Chatfleld, 23 Fla. 540;
Baker v. State, 17 Fla. 406; Southern Exp. Co. v. Van Meter, 17 Fla.
783; Coker v. Hayes, 16 Fla. 368. But see Morrison v. State, 28
So. 97.
69 Vaughn v. Ferrall, 57 Ind. 182; Wood v. McClure, -7 Ind. 155;
Roberts v. Higgins, 5 Ind. 542; Jones v. Van Patten, 3 Ind. 107.
eoMaxon v. Chicago, M. & St. P. Ry. Co., 67 Iowa, 226; Bailey v.
Anderson, 61 Iowa, 749; Harrison v. Charlton, 42 Iowa, 573. For-
merly, the practice in Iowa was in accord with the general rule.
Rawlins v. Tucker, 3 Iowa, 213.
61 Barney v. Scherling, 40 Miss. 320.
«2Uhe V. Chicago, M. & St. P. Ry. Co.. 4 S. D. 505; Collins Ic^'
Cream Co. v. Stephens, 189 111. 200.
esLlndblom v. Sonstelie (N. D.) 86 N. W. 357 (construing Rev.
Code, § 5298).
(828)
Ch. 32] REVIEW ON APPEAL. § 353
lUihois.
Illinois Cent. R. Co. v. Modglin, 85 111. 481; Armstrong v. Mock,
17 111. 166; Hill v. Ward, 7 111. 285; Leigh v. Hodges, 4 111. 15; Up-
dike V. Armstrong, 4 111. 564; Gibbons v. Johnson, 4 111. 61; Love
V. Moynehan, 16 111. 277. But see Collins Ice-Cream Co. v. Stephens,
189 111. 200.
Kansas.
Board Com'rs of Allen Co. v. Boyd, 31 Kan. 765; Joseph t. First
Nat. Bank of Eldorado, 17 Kan. 256.
EentuoTcv-
Poston V. Smith's Ex'r, 8 Bush, 589.
Louisiana.
Buel T. New York Steamer, 17 La, 541; Penn v. Collins, 5 Rob.
213.
Maine.
State V. FenlasoB, 78 Me. 495; State t. Wilkinson, 76 Me. 317.
Massachusetts.
Mooar v. Harvey, 125 Mass. 574; Lee v. Gibbs, 10 Allen, 248.
Michigan.
Garton t. Union City Nat. Bank, 34 Mich. 279; Doyle v. Stevens,
4 Mich. 87.
Minnesota.
O'Connor v. Chicago, M. & St. P. Ry. Co., 27 Minn. 166.
Missouri.
State v. Westlake, 169 Mo. 669; State v. Reed, 89 Mo. 168; State
V. Burk, 89 Mo. 635; Waller v. Hannibal & St. J. R. Co., 83 Mo. 608;
State V. Hayden, 61 Mo. App. 662; Gordon v. Gordon, 13 Mo. 215;
Dozier v. Jerman, 30 Mo. 216; Powers v. Allen, 14 'Mo. 367; Boyse
V. Crickard, 31 Mo. 530; Randolph v. Alsey, 8 Mo. 656.
Nebraska.
Schroeder v. Rinehard, 25 Neb. 75; Sherwin v. O'Connor, 24 Neb.
603; Heldt v. State, 20 Neb. 492; Nyca v. Shaffer, 20 Neb. 507; Gib-
son v. Sullivan, 18 Neb. 558; Warrick v. Rounds, 17 Neb. 412; Omaha
& R. D. R. Co. v. Walker, 17 Neb. 432; Black t. Winterstein, 6 Neb.
224.
North Carolina.
Harrison v. Chappell, 6i N. C. 258; Stats v. Crockett, 82 N. C. 599.
(829)
§ 369 INSTRUCTIONS TO JURIES. [Ch. 32
Under the Code, exceptions may be taken at any time. State v.
Bliaeon, 91 N. C. 564; Smith v. Smith, 108 N. C. 365.
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. App. 117; Williams v. State, 4 Tex. App. 6
Alderson v. State, 2 Tex. App. 10; Grant v. State, 2 Tex. App. 164
Porter y. State, 1 Tex. App. 477.
Vermont.
State V. Clark, 37 Vt. 471.
West Yirginia.
Wickes T. Baltimore & O. R. Co., 14 W. Va. 157; Robinson v.
Pltzer, 3 W. Va. 336; Nadenbousch v. Sharer, 2 W. Va. 285.
Wisconsin.
Butler V. Cams, 87 Wis. 61.
United States.
Railway Co. v. Heck, 102 U. S. 120; Barton v. Forsyth, 20 How.
532; United States v. Breitllng, 20 How. 252; Phelps v. Mayer, 15
How. 160; MaeDonald v. United States (C. C. A.) 63 Fed. 426; Park
Bros. & Co. V. Bushnell (C. C. A.) 60 Fed. 583; Bracken v. Union
Pac. Ry. Co. (C. C. A.) 56 Fed. 447.
Instructions refused must lie 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. 218.
NeirasTca.
Tagg V. Miller, 10 Neb. 442.
North Carolina.
Branton v. O'Briant, 93 N. C. 9».
(830)
Oh. 32] REVIEW ON APPEAL. § 370
II. R&cx)BD ON Appeal.
S 370. ITecessity of bill of exceptions.
As a general rule, and in the absence ol a controlling stat-
Bte, the instructions given upon the trial of a case form no
part of the record, and consequently cannot be reviewed on
appeal unless brought into the record by a formal bill of ex-
ceptions.®* And this is so, although the instructions may be
improperly embodied in the record.®® In several states, how-
ever, the instructions are made part of the record by statute,
and, where such statutes exist, the instructions may be re-
viewed without a bill of exceptions.*® In Indiana, where
** See cases collected in digest note, § 372. A charge cannot be
proved by witnesses, and an alleged error therein can be examined
only by bill of exceptions. State v. McClanahan, 9 La. Ann. 210.
«s California: People v. Beaver, 83 Cal. 419; People v. Rogers,
81 Cal. 209; People v. Keeley, 81 Cal. 210; People v. January, 77 Cal.
179.
Colorado: Witcher v. Watkins, 11 Colo. 548; Banks v. Hoyt, 11
Colo. 399.
Illinois: Chicago, M. & St. P. Ry. Co. v. Yando, 127 111. 214; City
Cab Co. v. Taylor, 30 111. App. 47; Shedd v. Dalzell, 30 111. App. 356;
Obermark v. People, 24 111. App. 259.
Indiana: Archibald v. State, 122 Ind. 122; Marqnadt v. Sieber-
ling, 121 Ind. 307; Louisville, N. A. & C. Ry. Co. v. Wright, 115 Ind.
378; Delhaney v. State, 115 Ind. 499; Whetton v. Clayton, 111 Ind.
360; Hollingsworth v. State, 111 Ind. 289; Brown v. State, 111 Ind,
441.
Iowa: State v. Hall, 79 Iowa, 674.
Kansas: State v. Sipe, 38 Kan. 201; State v. Smith, 38 Kan. 194.
Kentucky: Ooldsbury v. May, 1 Litt. 254.
Montana: Scherrer v. Hale, 9 Mont. 63.
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.
Wisconsin: Collins v. Breen, 75 Wis. 606.
«» See cases collected in digest note, infra, § 372. Where a statute
requires instructions to be filed with the clerk and entered in the
(831)
§ 371 INSTRUCTIONS TO JURIES. [Ch. 32
sucli a statute exists, it is held that instructions maybe brought
up for review in either of two modes, i. e., under the statute
by compliance with its provisions, or by bill of exceptions in
the usual way.®''
§ 371. Same — ^Digest of decisions.
Instructions must 6e brought up by iill of exceptions.
Arkansas.
Cheaney v. State, 36 Ark. 74.
Colorado.
Brink v. Posey, 11 Colo. 521; Witcher v. "Watkins, 11 Colo. 548;
Banks v. Hoyt, II Colo. 399; McDonald v. Clough, 10 Colo. 59; Kurtz
V. Simonton, 1 Colo. 70.
Florida.
Parrish v. Pensacola & A. R. Co., 28 Fla. 252; Richardson v. State,
28 Fla. 349. See Act of March 2, 1877 (McClellan's Dig. p. 338, §§
34-36).
Illinois.
City Cab Co. v. Taylor, 30 HI. App. 47; Liverpool, L. & G. Ins. Co.
V. Sanders, 26 III. App. 559; Obermark v. People, 24 111. App. 259.
Indiana.
Henley v. Bronnenberg (Ind. App.) 31 N. B. 583; Clanin v. Pagan,
124 Ind. 305; Landwerlen v. Wheeler, 106 Ind. 523; Starnes v. Scho-
field, 5 Ind. App. 4; Steeg v. Walls, 4 Ind. App. 18; Ellebarger v.
Swlggett, 1 Ind. App. 598.
Iowa.
Lewis V. May, 22 Iowa, 599; State v. Jones, 11 Iowa, 11; Jordan v.
Quick, 11 Iowa, 9; Pierce v. Locke, 11 Iowa, 454; Green v. McPaddin,
5 Iowa, 549; Garber v. Morrison, 5 Iowa, 476; Harmon v. Chandler,
8 Iowa, 150; Ewing v. Scott, 2 Iowa, 447; Claussen v. La Franz, 1
court journal, they need not be brought up in the bill. Eaton v.
Carruth, 11 Neb. 231.
«7 Where it is sought to have instructions reviewed, they must be
brought into the record in one or the other of these methods. Clanin
V. Fagan, 124 Ind. 304. Either is sufficient: Jeffersonville, M. & I.
R. Co. V. Cox, 37 Ind. 325; NewBy v. Warren, 24 Ind. 161. Compare
Cross v. Pearson, 17 Ind. 612.
(832)
Ch. ;32] REVIEW ON APPEAL. § 371
Iowa, 226; Parker v. Pierce, 4 G. Greene, 452; Reed v. Hubbard, 1
G. Greene, 153.
Kansas.
Moore v. Wade, 8 Kan. 380.
Kentucky.
Forest v. Crenshaw, 81 Ky. 51.
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.
Nevada.
State V. Ah Mook, 12 Nev. 369; State v. Forsha, 8 Nev. 137.
Ohio.
City of Toledo v. Preston, 50 Ohio St. 361.
Pennsylvania.
Yardley v. Cuthbertson, 14 Wkly. Notes Cas. 29.
Tennessee.
Chesapeake, O. & S. W. R. Co. v. Foster, 88 Tenn. 671; Owens v.
State, 16 Lea, 1; McGhee v. Grady, 12 Lea, 89; Hardwiok v. State,
6 Lea, 229; Huddleston v. State, 7 Baxt. 55; Bass v. State, 6 Baxt.
580.
Texas.
Texas Telegraph & Telephone Co. v. Seiders, 9 Tex. Civ. App. 431';
Gulf, C. & S. F. Ry. Co. v. Holt, 1 Willson, Civ. Cas. .Ct. App. § 835.
Utah.
People V. Pettit, 5 Utah, 241.
Vermont.
Fletcher v. Howard, 2 Aiken, 115.
Wisconsin.
Collins V. Breen, 75 Wis, 606; Mullen v. Reinig, 68 Wis. 408; Koe-
nigs V. Jung, 73 Wis. 178.
England.
Anderson v. Fitzgerald, 4 H. L. Cas. 484; McAlpine v. Mangnall,
(S'i'S)
R3. — Ins. to Jiiriefi.
§371 INSTRUCTIONS TO JURIES. [Ch. 3
3 C. B. 496, 54 E. C. L. 496. "A charge of the court given to the
jury in writing, and filed with the papers in the case, as required
by section 266 of the Code, is reviewable on error only when made
a part of the record by bill of exceptions." Pettett v. Van Fleet, 31
Ohio St. 536.
Louisiana.
"Although in writing, the judge's charge was not excepted to. We
held, in State v. Ricks, 32 La. Ann. 1098, that, where the charge
was in writing, and embodied in the record, we would notice 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 (10 La. Ann. 450). and there-
fore 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 opportunity of explain-
ing or correcting his charge at the time; otherwise, the defendant
would be at liberty to talce his chances of acquittal on the charge
as delivered, and, if convicted, to urge his objection in subsequent
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.
Statutory changes in rule.
Indiana.
In this state, by statute, instructions are made a part of the record,
and it is provided that, if a party wishes to except, it shall be sufB-
cient to write on the margin or at the close of each instruction the
words, "Refused and excepted to," or "Given and excepted to," which
memorandum must be signed by the judge, and dated. This stat-
ute does not apply where the instructions are properly made part
of the bill of exceptions. Plank v. Jackson, 128 Ind. 424. But "they
must be brought into the record by a bill of exceptions, or signed
by the judge, and filed as a part of the record." Clanln v. Fagan,
124 Ind. 304. Where all the instructions are in the record, as pro-
vided by Rev. St. Ind. 1881, § 535, it is not necessary that the ques-
tion of their propriety be presented by bill of exceptions, as pro-
vided by Id. § 630, for the presentation of reserved questions o£
law. Richardson v. Coleman, 131 ,Ind. 210. See, also. Lower v.
Franks, 115 Ind. 334. As it originally stood, the statute required
the memorandum to be signed by the party or his attorney. Suth-
erland V. Hankins, 56 Ind. 343; Maghee v. Baker, 15 Ind. 254; Bush
V. Durham, 15 Ind. 252; State v. Rabourn, 14 Ind. 300. Ahd the
signature by the judge, which Is now required, was insufficient.
(834)
Ch. 32] REVIEW ON APPEAL. § 371
Newby v. Warren, 24 Ind. 161 j Ledley v. State, 4 Ind. 580. If an
instruction asked for is put in writing, signed by the party or liia
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. Gox, 37
Ind. 325.
Iowa.
By statutory provision (Code, § 2789), 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. Roberts v. Leon Loan &
Abstract Co., 63 Iowa, 76; Allison v. Jack, 76 Iowa, 205. Where the
giving and refusal of instructions 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. Burlington, C. R. & N. R. Co., 56 Iowa, 520.
The instructions, whe^ 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 instructions 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 certified by the clerk of the trial
court to the supreme court; and, if they cannot be made a part of
such transcript, error in the giving of them cannot be considered.
Bonney v. Cocke, 61 Iowa, 303. Before the enactment of the statu-
tory provision above referred to, it was held that instructions were
not a part of the record unless made so by a bill of exceptions. Park-
er V. Pierce, 4 G. Greene, 452; Claussen v. La Franz, 1 Iowa, 226;
Bwing V. Scott, 2 Iowa, 447; Pierce v. Locke, 11 Iowa, 454.
Kansas.
"In« civil actions, the statute seems to provide that instructions
reduced to writing and signed by the judge shall, when filed, be-
come a part of the record." State v. Lewis, 10 Kan. 157. "Instruc-
tions not embodied in a formal bill of exceptions, nor signed by the
judge of the court below, as provided by statute [Gen. St. pp. 682,
686, §§ 276, 303], nor embodied in a case made for the supreme court,
as provided by statute [Gen. St. p. 737, §§ 546-549; Laws 1871, p.
274], 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 preserved by a bill of exceptions,
form no part of the record, and cannot be considered on an appeal
to the supreme court. State v. Smith, 38 Kan. 194; State v. Ratner,
44 Kan. 429. And see State v. Lewis, 10 Kan. 157. "The charge of
(835)
§ 372 INSTRUCTIONS TO JURIES. [Ch. 32
the court In a criminal cause only becomes a part of the record
by means of a bill of exceptions." State v. Smith, 38 Kan. 194. In
a criminal prosecution, "instructions asked for by the defendant,
and refused by the trial court, cannot become a part of the rebord
unless they are embodied in a bill of exceptions." State v. McClin-
tock, 37 Kan. 40.
Texas.
Rev. 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 subject to revision for errors therein,
without the necessity of taking any bill of exceptions." Redus v.
Burnett, 59 Tex. 581; Missouri Pac. R. Co. v. Rabb, 3 Willson, Civ.
Gas. Ct. App. § 39.
§ 372. What record must show, generally.
Upon appeal or error, the burden of showing reversible
error in the proceedings below rests upon the party assert-
ing it, i. e., upon the appellant,^® and as the appellate court,
in examining the case, is confined solely to the matters ap-
pearing in the record, it follows that the appealing party
must see that the record contains enough to show conclusive-
ly that the court below committed error for which the judg-
ment may be reversed.®^ Thus, where the record showed
that the court below erred in charging that the jury might
take with them into the jury room an account book intro-
duced 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.'" So, where the refusal
of a request to charge is assigned for error, the record must
68 See Linton v. Allen, 154 Mass. 432; King v. State (Tex. Cr.
App.) 21 s: W. 190; Patchell v. Jaqua, 6 Ind. App. 70. See, also.
Infra, §§ 375-378, "Presumptions on Appeal."
68 To authorize a reversal because of the refusal to give a charge,
the record must afBrmatively show that the charge was correct and
justified by the evidence. Wyatt v. Stewart, 34 Ala. 716.
'0 First Nat. Bank of Porter Co. v. Williams, 4 Ind. App. BOl.
(836)
Ch. 32] REVIEW ON APPEAL. § 372
show a proper formal request.''^ And if a cautionary in-
struction is requested to counteract improper remarks of
counsel in argument, a refusal to so charge will not be re-
viewed unless the objectionable remarks of counsel are pre-
served in the bill of exceptions.''* An appellate court "will
not review erroneous instructions upon mere abstract prin-
ciples of law."^^ Accordingly, 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.''* Objections to in-
structions must be raised on appeal by assignment of error,''"
and only the errors assigned will be considered.^* The rec-
ord must show that an exception was taken below'^^ at the
proper timeJ®
'1 Thus, where requests for Instructions must be In writing, the
bill of exceptions must show that a written request was made. Nick-
less V. Pearson, 126 Ind. 477.
'^Kepperly v. Ramsdeo, 83 111. 354.
78 Yelm Jim v. Territory, 1 Wash. T. 63.
74 Illinois: Leavitte v. Randolph Co., 85 111. 507.
Indiana: Amick v. O'Hara, 6 Blackf. 258.
Iowa: Murphy v. Johnson, 45 Iowa, 57; Kelleher v. City of Keo-
kuk, 60 Iowa, 473.
Texas: Ashworth v. State, 9 Tex. 490; Chandler v. State, 2 Tex.
305; Hill v. Crownover, 4 Tex. 8; Holman v. Britten, 2 Tex. 297.
Virginia: Valley Mut. Life Ass'n v. Teewalt, 79 Va. 421.
Washington Territory: Yelm Jim v. Territory, 1 Wash. T. 63.
United States: New Orleans Ins. Co. v. Piaggio, 16 Wall. 378.
7= Bender v. Peyton, 4 Tex. Civ. App. 57.
78 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 misdirection of the court, and that is the only question now
properly before us." McClurkin v. Bwing, 42 111. 283.
'7 Keeling v. Kuhn, 19 Kan. 441; Indianapolis, B. & W. Ry. Co. v.
(837)
§ 373 INSTRUCTIONS TO JURIES. [Ch. 3
5 373. Preserving evidence in record.
As stated in the last preceding section, the record on ap-
peal must show that the instructions or requests presented
for review were relevant and material to the issues involved
in the trial. This "will usually require at least so much of
the evidence as the instructions or requests were hased upon
to be brought up in the bill of exceptions.''® Where none
of the evidence appears in the record, and there is no state-
ment of what it teijded to prove, or that it raised the ques-
tions on which instructions are based, the appellate court
cannot, as a general rule, determine whether there was error
Rhodes, 76 111. 285; Toledo, P. & W. Ry. Co. v. Miller, 55 111. 448;
Buckmaster v. Cool, 12 III. 74.
Ts Love v. Moynehan, 16 111. 277. See, also, supra, § 369, "Time of
Taking Exceptions."
T» Alabama: Hili 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. Crocheron, 14 Ala. 822; Peden
V. Moore, 1 Stew. & P. 71.
Florida: Blige v. State, 20 Fla. 742; Stewart v. Mills, 18 Fla. 57;
Southern Exp. Co. v. Van Meter, 17 Fla. 783; Sherman v. State, 17
Fla. 888; McKay v. Friebele, 8 Fla. 21.
Illinois; Evans v. Lohr, 3 III. 511.
Indiana: State v. Bartlett, 9 Ind. 569.
Iowa: Potter v. Wooster, 10 Iowa, 334; Wilcox v. McCune, 21
Iowa, 294.
Massachusetts: Whitehead & A. Mach. Co. v. Ryder, 139 Maes.
366; O'Neil v. Wolffsohn, 137 Mass. 134: Horton v. Cooley. 135 Mass.
689; Salomon v. Hathaway, 126 Mass. 482; Coker v. Ropes, 125 Mass.
577; Canfield v. Canfield, 112 Mass. 233; Foster v. Ropes, 111 Mass.
10; Dale V. Harris, 109 Mass. 193; Milk v. Middlesex R. Co., 99 Mass.
167; Stearns v. Janes, 12 Allen, 582; Tappan v. Burnham, 8 Allen,
65; Wells v. Prince, 15 Gray, 562; Fuller v. Ruby, 10 Gray, 285.
Texas: Holman v. Britton, 2 Tex. 297.
United States: Phoenix Life Ins. Co. v. Raddin, 120 U. S. 183;
3ones v. Buckell, 104 U. S. 554; Worthington v. Ma'son, 101 U. S,
149; Vasse v. Smith, 6 Cranch, 226; Southwestern Virginia Imp. Co.
V. Frarl (C. C. A.> bd Fed. 171.
(838;
Ch. p2j REVIEW ON APPEAL. 373
in the rulings of the court as to the instructions or not."*"
And it has accordingly 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.*^ ^here the charge is objected to
on the ground of irrelevancy, all the evidence must be brought
up by the bill of exceptions.*^ A judgment will not be re-
80 Town of Leroy v. McConnell, 8 Kan. 273; State v. English, 34
Kan. 629; Stetler v. King, 43 Kan. 316; Gray v. City of Emporia, 43
Kan. 704; State Ins. Co. v. Curry, 44 Kan. 741; Leavitte v. Randolph
County, 85 111. 507. As instructions, ahstractly correct, may be
properly refused if not applicable under the evidence, a party com-
plaining of the refusal to give an instruction must bring before the
court on appeal the evidence showing such applicability. Cutter v.
Panning, 2 Iowa, 580; Cover v. Dill, 3 Iowa, 337; Hanan v. Hale, 7
Iowa, 153; Frost v. Inman, 10 Iowa, 587; Wisner v. Brady, 11 Iowa,
248; Paden v. Griffith, 12 Iowa, 272; Wilcox v. McCune, 21 Iowa,
294; Chase v. Scott, 33 Iowa, 309; Auld v. Kimberlin, 7 Kan. 601.
81 Alabama: Tracey, Irwine & Co. v. Warren, 45 Ala. 408; Green
y. Tims, 16 Ala. 541; Brewer v. Strong's Ex'rs, 10 Ala. 961.
Illinois: Love v. Moynehan, 16 111. 277.
Indiana: Ward v. State, 52 Ind. 454.
Iowa: State v. Hamilton, 32 Iowa, 572; Nollen v. Wisner, 11
Iowa, 190; Preston v. Walker, 26 Iowa, 205.
Kansas: Hymes v. Jungren, 8 Kan. 392; Board Com'rs Allen Co.
V. Boyd, 31 Kan. 765.
Texas: McMulIen v. Kelso, 4 Tex. 235; Holman v. Britton, 2 Tex.
297; Chandler v. State, 2 Tex. 305; Hutchins v. Wade, 20 Tex. 7;
Pulgham v. Bendy, 23 Tex. 64; 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 in-
vasion of the province of the jury, or he must set out all the evi-
dence, that the appellate court may be able to determine whether
the charge is authorized by it. Gaines v. Harvin, 19 Ala. 491;
Owens V. Callaway, 42 Ala. 301; Griffin v. Bland, 43 Ala. 542; Doe a.
School Com'rs v. Godwin, 30 Ala. 242; Fleming v. Ussery, 30 Ala.
282; Barnes v. Mobley, 21 Ala. 232; Tracey, Irwine & Co. v. Warren,
45 Ala. 408.
82 Law V. Merrills, 6 Wend. (N. Y.) 268; United States v. Morgan,
(839)
§ 373 INSTRUCTIONS TO JURIES. [Ch. 32
versed 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.®^ It
has been held 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 judg-
ment.**
There are several classes of cases, however, in which error
in regard to instructions is available on appeal, notwithstand-
ing that the record does not contain all the evidence. Thus,
where instructions are erroneous under any supposable state
of facts,*^ or where the pleadings render them necessarily er-
roneous,*® or where they are based on incompetent evidence,*''
the error may constitute ground for reversal, although all
11 How. (U. S.) 159; Zeller's Lessee v. Eckert, 4 How. (U. S.) 297;
Muirhead v. Mulrhead, 8 Smedes & M. (Miss.) 211.
83 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 hy 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.
s4Holman v. Britton, 2 Tex. 297; Salinas v. "Wright, 11 Tex. 572;
Hollingsworth v. Holshousen, 17 Tex. 41.
ss Alabama: Peden v. Moore, 1 Stew. & P. 71; Tharp v. State, 15
Ala. 749 ; Rowland v. Ladiga, 9 Port. 488.
Indiana: Smathers v. State, 46 Ind. 447; Palmer v. Wright, 58
Ind. 486; Eward v. Lawrenceburgh & U. M. R. Co., 7 Ind. 711; Mur-
ray V. Fry, 6 Ind. 371; Woodruff v. Garner, 27 Ind. 4; Jolly v. Terre
Haute Drawbridge Co., 9 Ind. 417; Ruffing v. Tilton, 12 Ind. 259;
New Albany & S. R. Co. v. Callow, 8 Ind. 471; Woolley v. State, 8
Ind. 502; Barlow v. Thompson, 46 Ind. 384; Griffin v. Templeton, 17
Ind. 234; Blizzard v. Bross, 56 Ind. 74.
Iowa: Murphy v. Johnson, 45 Iowa, 57.
86 Duggins V. Watson, 15 Ark. 118; Robins v. Fowler, 2 Ark. 143;
Mason v. McCampbell, 2 Ark. 506; Pfeufter v. Maltby, 54 Tex. 454.
87 Lane v. Miller, 17 Ind. 58.
(840)
Ch. 32] REVIEW ON APPEAL. § 374
the evidence is not contained in tlie record. It has been held
that, where no question is made on the evidence, it is suffi-
cient to secure a review of instructions to state in the bill
of exceptions that the evidence established or tended to prove
certain facts, without setting it out in extenso?^
i 374. Preserving instructions in record.
In order to make out a ease for reversal, the appellant must
bring up, in the bill of exceptions, or other authorized man-
ner, the instructions to which he has excepted, and upon
which he relies for reversal.*^ So, also, when the refusal
of requested instructions is assigned as error, the instructions
refused must be embodied in the bill of exceptions.®" And
where the modification of an instruction is excepted to, the
bill of exceptions must show what the modifications were,
es Illinois: Pennsylvania Co. v. Swan, 37 111. App. 85; Schmidt
V. Chicago & N. W. Ry. Co., 83 111. 405; Leavitte v. Randolph County,
85 111. 507.
Iowa: Kelleher v. City of Keokuk, 60 Iowa, 473; Mudge v. Agnew,
66 Iowa, 297.
s» Arkansas: Cheaney v. State, 36 Ark. 74; Hicks v. Britt, 21 Ark.
422.
California: Freeborn v. Norcross, 49 Cal. 313.
Indiana: McKinsey v. McKee, 109 Ind. 209; Helms v. "Wayne
Agricultural Co., 73 Ind. 325.
Missouri: Montgomery v. Barker, 81 Mo. 63; Greenabaum v.
Millsaps, 77 Mo. 474; Johnson v. Greenleaf, 73 Mo. 671; State v. She-
hane, 25 Mo. 565; Hoyt v. Quinn, 20 Mo. App. 72; Davis v. Hilton, 17
Mo. App. 319; Cadmus v. St. Louis Bridge & Tunnel Co., 15 Mo.
App. 86.
Nevada: State v. Rover, 11 Nev. 343; State v. Forsha, 8 Nev.
137; State v. Burns, 8 Nev. 251.
Wisconsin: Collins v. Breen, 75 Wis. 606. '
9» State V. Schuessler, 3 Ala. 419 ; Pierson v. State, 12 Ala. 149 ;
Renshaw v. Switzer, 6 Mont. 464; Klelnschmidt v. McDermott, 12
Mont. 309; Prindeville v. People, 42 111. 217; Gill v. Skelton, 54 111.
158; Wilmington Coal Min. & Mfg. Co. v. Barr, 2 111. App. 84. See,
also, Keeling v. Kuhn, 19 Kan. 441.
(841)
g 374 INSTRUCTIONS TO JURIES. [Ch. 32
and also the instruction as modified.^^ The obvious reason
is that the court cannot judge of the correctness of instruc-
tions given, refused, or modified without having such in-
structions or modifications before it, and, as has been seen
in a previous section, instructions are not ordinarily a part
of the record, and therefore are not before the court unless
embodied in a bill of exceptions.^^ 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 vi^as not in
fact cured ;^* otherwise there can be no reversal.^^ 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, non con-
81 Arkansas: St. Louis, I. M. & S. Ry. Co. v. Hecht, 38 Ark. 357.
Illinois: Boles v. Henney, 32 111. 130; Ballance v. Leonard, 37
111. 43; Gulliver v. A.dams Exp. Co., 38 111. 503; Burns v. People, 126
111. 285.
Texas: Missouri Pac. Ry. Co. v. Williams, 75 Tex. 4.
»2 See supra, § 370, "Necessity of Bill of Exceptions." "When the
bad practice is adopted by the court, of answering the legal propo-
sitions submitted by counsel seriatim, and then separately giving
■what is sometimes called a "general charge," and counsel 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." Wissler v. Hershey, 23 Pa. 333.
»* Marshall v. Lewark, 117 Ind. 377; Lake Erie & W. R. Co. v.
Carson, 4 Ind. App. 185; Oregon Railway & Navigation Co. v. Galli-
her, 2 Wash. T. 70.
95 Board Com'rs of Brown Co. v. Roberts, 22 Kan. 762. "Where
all the instructions given to the jury do not appear, there can be
no reversal merely because it appears that the court instructed the
jury to consider all the facts, and render such a yerdict as they
should deejn just and right." Mitchell v. Tomlinson, 91 Ind. 167.
(842)
Ch. 32] REVIEW ON APPEAL. § 374
stai, the instruction may have been refused because already
once given.®® The burden of showing error in such 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.®'' 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 uot.®^ 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.®® In the United States supreme
08 Illinois: Wilmington Coal Mln. & Mfg. , Co. v. Barr, 2 111.
App. 84.
Iowa: Moody v. St. Paul & S. C. R. Co., 41 Iowa, 284; State v.
Johnson, 19 Iowa, 230; Huff v. Aultman, 69 Iowa, 71; State v. Wil-
liamson, 68 Iowa, 351; State v. Stanley, 48 Iowa, 221; State v.
Nichols, 38 Iowa, 110; Chase v. Scott, 33 Iowa, 309; Bower v. Stew-
art, 30 Iowa, 579.
Kansas: Keeling v. Kuhn, 19 Kan. 441; State v. Teissedre, 30
Kan. 476; Wilson v. Fuller, 9 Kan. 176; Norton v. Foster, 12 Kan.
44; Wolfley v. Rising, 12 Kan. 535; Da Lee v. Blackburn, 11 Kan.
190; Shepard v. Pratt, 16 Kan. 209; Ferguson v. Graves, 12 Kan. 39;
Pacific R. Co. V. Brown, 14 Kan. 469; Morgan v. Chappie, 10 Kan,
216; Washington Life Ins. Co. v. Haney, 10 Kan. 525; Marshall v.
Shibley, 11 Kan. 114; Bard v. Elston, 31 Kan. 274.
Maine: Hearn v. Shaw, 72 Me. 187.
Massachusetts: Linton v. Allen, 154 Mass. 432.
8'Patchell V. Jaqua, 6 Ind. App. 70; Linton v. Allen, 154 Mass.
434; King v. State (Tex. Cr. App.)' 21 S. W. 190.
98 State v.~ Hamilton, 32 Iowa, 572; State v. Rhea, 25 Kan. 576;
Berrenberg v. City of Boston, 137 Mass. 231.
98 "This court will not ordinarily reverse on account of erroneous
instructions, unless the record contains 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
fe:. (843)
§ 374 INSTRUCTIONS TO JURIES. [Ch. 32
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 exceptions ;^'"' and in Massachusetts and Alabama the prac-
tice seeems to be the same.^"^ "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 rec-
ord, the appellate court will be governed by the charge as
written" by the judge.-"*^
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 reversal, 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 instruction complained of, would have correctly pre-
sented the law. Bland v. Hixenbaugh, 39 Iowa, 532.
100 Phoenix Life Ins. Co. v. Raddin, 120 U. S. 183, citing Evans v.
Eaton, 7 Wheat. (TJ. S.) 366; Carver v. Jackson, 4 Pet. (U. S.) 1;
Crane v. Crane, 5 Pet. (U. S.) 190; Magniac v. Thompson, 7 Pet. (U.
S.) 348; Gregg v. Sayre's Lessee, 8 Pet. (U. S.) 244; Stimpson v.
Westchester R. Co., 3 How. (U. S.) 553; Zeller's Lessee v. Eckert, 4
How. (U. S.) 289; United States v. Rlndskopf, 105 U. S. 418. See,
also, Lincoln v. Claflin, 7 Wall. (U. S.) 132; Conrad v. Pacific Ins.
Co., 6 Pet. (U. S.) 262, 280. And this practice is enforced by an
express rule of court. See Rule 38 of 1832, 6 Pet. (U. S.) iv.; Rule
4 of 1858, 21 How. (U. S.) vi.; and Rule 4 of 1884, 108 U. S. 574.
101 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. "The insertion in the bill of exceptions
of the general charge of the court, to which no exceptions were
taken, cannot possibly injure the appellant. It furnishes no ground
for reversal." Hollingsworth v. Chapman, 54 Ala. 8, citing Grace v.
McKissack, 49 Ala. 163.
102 Alston V. Grantham, 26 Ga. 374.
(844)
Ch. 32] REVIEW ON APPEAL. § 375
III. Presumptions on Appeal.
§ 37S. Presumptions against error.
The rules stated in a preceding section as to what the rec-
ord must contain in order to authorize a review of instruc-
tions given or refused are often stated in the language of
presumptions. Thus, the »ule already stated, that the bur-
den is on the appellant to show affirmatively upon the rec-
ord the existence of reversible error, is sometimes expressed
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. Accordingly, where the state of
the record leaves any room for presumptions, it will be pre-
sumed that the court below gave all necessary and proper in-
structions upon all issues and questions involved,^"* and at
the proper time,^"* even though no charge appears in the
10s City of Lewiston v. Inhabitants of Harrison, 69 Me. 504; Ford
V. Ford, 110 Ind. 89; Ogden v. Kelsey, 4 Ind. App. 299; Lehman v.
Hawks, 121 Ind. 541; Com. v. Ford, 146 Mass. 131. It will be pre-
sumed that the parties had narrowed the issue to the questions
stated by the court. Cory v. Silcox, 6 Ind. 39; Legget v. Harding,
10 Ind. 414. To sustain error on the ground" that the court neg-
lected to charge upon a question of law arising upon the facts, it
must appear, not only that the facts existed, but that the court was
distinctly requested to instruct the jury as to the law on that point.
Law V. Merrijls, 6 Wend. (N. Y.) 268, reversing Id., 9 Cow. (N. Y.)
65; Powell v. Jones, 42 Barb. (N. Y.) 24. Where the record shows
an objection to improper statements of counsel in argument to the
jury, hut not whether the court corrected the statements or not, it
will be presumed that the court instructed the jury to disregard
them. Fredericks v. Judah, 73 Cal. 604. It will be presumed that
the court performed its statutory duty to give general instructions,
and likewise that it obeyed the statutory requirement to instruct
the jury that, if they should find a general verdict, they must an-
swer special interrogatories. Frank v. Grimes, 105 Ind. 346.
104 "The presumption, in the absence of anything in the record, is
(845)
§ 375 INSTRUCTIONS TO JURIES. [Ch. 32
record. ^"^ So, where instructions would be correct under a
possible state of facts, and the evidence is not all before the
court, it will be presumed that the evidence was such as to
justify the giving of the instructions."^ This presumption
is rebutted, however, where the record purports to contain all
the evidence,"^ or where it is apparent that the instructions
would be improper under any possible state of the evidence
under the pleadings.^"* "Where the record does not contain
that the court below discharged its duty in charging the jury before
they were allowed to separate." Linton v. Housh, 4 Kan. 536.
105 Richardson v. City of Eureka, 96 Cal. 443; Plannery v. Van
Tassell, 32 N. Y. St. Rep. 350.
106 Warbasse v. Card, 74 Iowa, 306. See, also, cases collated in
digest note, infra, § 377. 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 affirmatively appears. Doe d. School Com'rs v.
Godwin, 30 Ala. 242; Fleming v. Ussery, 30 Ala. 282; Morris v.
State, 25 Ala. 57; Tempe v. State, 40 Ala. 350. Instructions, not
abstractly wrong, will be presumed applicable if the evidence is
not in the record. Campbell v. Peterman, 56 Ind. 428; Newby v.
Rogers, 54 Ind. 193; Overlin v. Kronenberger, 50 Ind. 365; McKinney
v. Shaw & Lippencott Mfg. Co., 51 Ind. 219. "A charge instructing
the jury 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 correctly given, when there is nothing in the bill of
exceptions showing what the 'circumstances' were." South & North
Alabama R. Co. v. Brown, 53 Ala. 651. Where it is assumed that
agency has been established, such agency being material, such as-
sumption will be presumed correct, where evidence is not in the
record. Bowen v. Pollard, 71 Ind. 177.
107 Where, upon review by the appellate court, "the bill of excep-
tions purports to contain all the evidence, an instruction not sup-
ported by the evidence thus preserved will not be presumed to have
been properly given." St. Louis Drug Co. v. Dart, 7 Mb. App. 590.
108 Indiana: Cincinnati, H. & I. R. Co. v. Clifford, 113 Ind. 460;
Cates V. Bales, 78 Ind. 288.
Iowa: Warbasse v. Card, 74 Iowa, 306; McMillan v. Burlington
& M. R. Co., 46 Iowa, 231; State v. Broadwell, 73 Iowa, 765.
(846)
Ch. 32] REVIEW ON APPEAL. § 375
all the instructions actually given, a refusal to give instruc-
tions will not be review^ed, as it will be presumed that the
court properly instructed, of its own motion, on questions
arising in the case,^"® and that the charge was correct as a
whole." " So, instructions which are apparently erroneous
Kentucky: Robards v. Wolfe, 1 Dana, 156.
Mississippi: Kellum v. State, 64 Miss. 226.
Nebraslca: Willis v. State, 27 Neb. 98.
Nevada: State v. Loveless, 17 Nev. 424.
Oklahoma: Fisher v. United States, 1 Okl. 252.
109 Alabama: Cobb v. Malone, 87 Ala. 514.
California: Richardson v. City of Eureka, 96 Cal. 443.
Colorado: Klink v. People, 16 Colo. 467; Halsey v. Darling, 13
Colo. 1.
Indiana: Marshall v. Lewark, 117 Ind. 377; Becknell v. Beoknell,
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; Patchell v. Jaqua, 6 Ind. App. 70; Leeper v. State, 12 Ind. App.
638.
Iowa: Huff v. Aultman, 69 Iowa, 71; State v. Williamson, 68
lowa^ 351.
Kentucky: Hunt v. Kemper, 10 Ky. Law Rep. 593, 9 S. W. 803.
Maine; Hewey v. Nourse, 54 Me. 256; Sidensparker v. Sidens-
parker, 52 Me. 48i.
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
Kansas. 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: Crouse v. Owens. 49 Hun. 610, 3 N. Y. Supp. 863;
Flannery v. Van Tassell, 56 Hun. 647, 9 N. Y. Supp. 871.
Ohio: Bean v. Green. 33 Ohio St. 444; Davis v. State, 25 Ohio St.
369.
Texas: Ross v. McGowen, 58 Tex. 603.
Wisconsin: McPhee v. McDermott, 77 Wis. 33; Graves v. State,
12 Wis. 591.
nowhere a single proposition selected from the charge by bill
(847)
§375 INSTRUCTIONS TO J UKIKS. lCII. 32
will be presumed to have been modified by otber instructions
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.^'-' If the error com-
plained of is such that it could not be obviated by other cor-
rect instructions, there is no room for this presumption, and
it may be proper to reverse, although all the instructions are
not in the record.''^ Ordinarily, the refusal of a request
^to charge is not available as reversible error, in the absence
of all the evidence in the record,''^ as it will be presumed,
of exceptions is claimed to be erroneous, 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 support of the judg-
ment will presume that the charge as a whole was a correct state-
ment of the law of the case. Bean v. Green, 33 Ohio St. 444.
Ill California: People v. Von, 78 Cal. 1.
Georgia: Hunt v. Pond, 67 Ga. 578; Bell v. State, 69 Ga. 752;
Bray v. State, 69 Ga. 765; Johnson v. Latimer, 71 Ga. 470; Massen-
gill v. First Nat. Bank of Chattanooga, 76 Ga. 341; Trice v. Rose, 80
Ga. 408.
Illinois: Abingdon v. Meadows, 28 III. App. 442. .
Indiana: Marshall v. Lewark, 117 Ind. 377; StuU v. Howard, 26
Ind. 456.
Iowa: Fernbach v. City of Waterloo, 76 Iowa, 598.
Minnesota: Cogley v. Cushman, 16 Minn. 397 (Gil. 354).
United States: Atchison. T. & S. F. R. Co. v. Howard (C. C. A.)
49 Fed. 206.
Contra: Cox v. People, 109 111. 457; Meyer v. Temme, 72 111. 574;
Schmidt v. Chicago & N. W. R. Co., 83 III. 405.
Where the brief does not give the whole of the judge's charge, a
detached fragment cannot be held to be erroneous. Sawyer, Wal-
lace & Co. v. Macaulay, IS S. C. 548. Where it appears that instruc-
tions were given which were not before the court, which might have
modified or changed those given which are insisted upon as being
erroneous, the court cannot presume that there were not other in-
structions correcting any error in the one relied upon as being er-
roneous. State v. Stanley, 48 Iowa, 221.
11^ Illinois: Meyer v. Temme, 72 111. 574.
113 See supra, § 373. Error in refusing to instruct that certain
(848)
Ch. 32] REVIEW ON APPEAL. § 375
in favor of the trial court, that the state of the evidence
was not such as to require the giving of the refused instruc-
tion/^* or, if all the instructions are not brought up, it will-
be' presumed that the instruction was correctly refused be-,
cause substantially embodied in other instructions given."'''
evidence constitutes a variance is not available, when tlie evidence
is not in the record. Witz v. Spencer, 51 Ind. 253.
Ill See cases collected in digest note, infra, § 376. "It is settled
in this court that, when a charge is asked and refused, it will be
presumed to have been abstract, although otherwise unobjectionable,
unless the contrary is shown by a statement of the. evidence." Tur-
beville v. State, 40 Ala. 715; Morris v. State, 25 Ala. 57; Leverett's
Heirs V. Carlisle, 19 Ala. 80; Wilson v. Calvert, 18 Ala. 274; Brazier
V. Burt, 18 Ala. 201; Dent v. Portwood, 17 Ala. 242; Hughes v. Par-
ker, 1 Port. (Ala.) 139; Hill v. State, 43 Ala. 335; Tharp v. State, 15
Ala. 749. "When a charge is requested which, on the facts hypo-
thetically stated, asserts a, correct legal proposition, but those facts
might be met and avoided by proof of other facts which would ren-
der the charge erroneous, if the bill of exceptions does not purport
to set out all the evidence, the appellate court will presume * * *
that such additional facts were proved." McLemore v. Nuckolls, 37
Ala.' 662.^ Unless the record shows affirmatively that there was evi-
dence tending to prove every fact which an instruction asked for
supposes, the appellate court will not reverse for a refusal to give
the same. Williams v. Barksdale, 58 Ala. 288; Little v. Martin, 28
Iowa, 558; Amos v. Sinnott, 4 Scam. (111.) 440; State v. Robinson,
35 S. C. 340; Pogue v. Joyner, 7 Ark. 463; City of Seattle v. Buzby,
2 Wash. T. 25 ; Richards v. Panning, 5 Or. 356 ; Cresinger v. Welch's
Lessee, 15 Ohio, 156; Davis v. State, 25 Ohio St. 369.
115 Colorado: Klink v. People, 16 Colo. 467.
, Georgia: Pace v. Payne, 73 Ga. 675.
Illinois: Hahn v. St. Clair Sav. & Ins. Co., 50 HI. 526; Chicago,
M. & St. P. Ry. Co. V. Yando, 127 111. 214; Gill v. Skelton, 54 111. 158.
See Ives v. Vanscoyoc, 81 HI. 120; Wilmington Coal Min. & Mfg. Co.
V. Barr, 2 111. App. 84.
Indiana: Vancleave v. Clark, 118 Ind. 61; Ford v. Ford, 110 Ind.
8S; Stott V. Smith, 70 Ind. 298; Delhaney v. State, 115 Ind. 499;
Lehman v. Hawks, 121 Ind. 541; Freeze v. De Puy, 57 Ind. 188; Gar-
rett V. State, 109 Ind. 527; Myers v. Murphy, 60 Ind. 282; Coryell v.
Stone, 62 Ind. 307; Puett v. Beard, 86 Ind. 104; Clore v. Molntire,
(849)
B4. — Ins. to Juries.
§ 375 INSTRUCTIONS TO JURIES. [Ch. 32
Where an instruction 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 einbodied the law.^*" Additional illustra-
120 Ind. 262; Lockwood v. Beard, 4 Ind. App. 505; Sexson v. Hoover,
1 Ind. App. 65; Taber v. Ferguson, 109 Ind. 227; Pittsburgh, C. &
St. L. R. Co. V. Noel. 77 Ind. 110.
Iowa: Huff V. Aultman, 69 Iowa, 71.
Kansas: Pacific R. Co. v. Nash, 7 Kan. 280; Washington Life Ins.
Co. V. Haney, 10 Kan. 525; Marshall v. Shibley, 11 Kan. 114.
Maine: Heam 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 Law Rec. 352.
Texas: Texas & P. Ry. Co. v. Lowry, 61 Tex. 149.
All the instructions must be embodied 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 pre-
sumed that those given comprised the substance of those refused
(Weyhrich v. Foster, 48 111. 115). The refusal of tlie court to
modify certain instructions cannot be considered on appeal when all
the instructions are not in the record. Lehman v. Hawks, 121 Ind.
541. The rule stated is subject to this exception: that, although
the entire charge is not brought up in the record, if a request con-
taining a correct statement of the law applicable to. the facts is re-
fused, and the court instructs to the contrary, the presumption in
favor of the correctness of the instructions given is overcome. Pace
V. Payne, 73 Ga. 670.
116 Smith V. Childress, 27 Ark. 328. Where the record shows that
an instruction was asked and given with a statutory modification,
but does not show what that statutory modiflcation Is or was. It
will be presumed by the supreme court that the modification was
correct. Wilson v. Fuller, 9 Kan. 176. To the same effect is
Clampitt V. Kerr, 1 Utah, 246. Where the record shows that the
court refused to give. In the language and form requested, a true
and pertinent proposition of law In Its charge to the jury. It will
he presumed. In the absence of anything appearing in the record to
(850)
Ch. 32] REVIEW ON APPEAL. § 375
tions of the presumption against error will be found in the
digest note following this section.
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 re-
butted, or does not apply. ■'^'^
i 376. Same — Digest of decisions.
Charge presumed correct and sufficient.
Unless the record shows the contrary, it will be presumed that
the trial court gave all the instructions required by the case, and
that such instructions were correct.
Alabama.
Louisville & N. R. Ck). v. Orr, 94 Ala. 602; Davis v. Badders, 95
Ala. 348; Cobb v. Malone, 87 Ala. 514; Hyde v. Adams, 80 Ala. Ill;
Myatts V. Bell, 41 Ala. 222; English's Bx'r v. McNair's Adm'rs, 34
Ala. 40.
Arkansas.
Crisman v. McDonald, 28 Ark. 8.
California.
Harris v. Barnhart, 97 Cal. 546; Richardson v. City of Eureka, 96
Cal. 443; People v. Von, 78 Cal. 1; Carpenter v. Swing, 76 Cal. 487;
Shepherd v. Jones, 71 Cal. 223; California Cent. Ry. Co. v. Hooper,
76 Cal. 404; People v. Bourke, 66 Cal. 455; People v. Gilbert, 60 Cal.
108; People v. Smith, 57 Cal. 130; Hinkle v. San Francisco & N. P.
R. Co., 55 Cal. 627; Brown v. Kentfleld, 50 Cal. 129; Baldwin v.
Bornhelmef, 48 Cal. 434; People v. Strong, 46 Cal. 303; People v.
Donahue, 45 Cal. 321; People v. Padillia, 42 Cal. 535; People v.
Torres, 38 Cal. 141; People v. Dick, 34 Cal. 663; People v. King, 27
CaL 507; Beckman v. McKay, 14 Cal. 250.
the contrary, that the same charge was substantially given, though
in other language and form. Bolen v. State, 26 Ohio St. 371.
"7 Thus, under a rule that it is fatal error, in a criminal case, to
give oral instructions to the jury without the consent of the de-
fendant, and the record shows that oral instructions were given,
but fails to show the consent of defendant, the judgment will be
reversed. People v. Trim, 37 Cal. 274; People v. Ah Fong, 12 Cal.
345; Territory v. Gertrude, 1 Ariz. 74. '
(851);
§ 37b INSTRUCTIONS TO JURIES. [Cli. 32
Colorado. '
Klink V. People, 16 Colo. 467; Halsey v. Darling, 13 Colo. 1.
District of Columbia.
Bunyea v. Metropolitan R. 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.
Ry. Co., 82 Ga. 386; Carson v. State, 80 Ga. 170.
Illinois.
Chicago, M. & St. P. Ry. Co. v. Yando, 127 111. 214; Meyer v.
Temme, 72 111. 574; Hahn v. St. Clair Sav. & Ins. Co., 50 111. 526;
De Clerq v. Mungin, 46 111. 112; City of Abingdon v. Meadows, 28
111. App. 442; Wilmington Coal Min. & Mfg. Co. v. Barr, 2 111. App. 84.
Indiana.
Hilker v. Kelley, 130 Ind. 356; Marshall v. Lewark, 117 Ind. 377;
Silver v. Parr, 115 Ind. 113; Lower v. Franks, 115 Ind. 334; Cin-
cinnati, H. & I. R. Co. V. Clifford, 113 Ind. 460; Joseph v. Mather,
110 Ind. 114; Unruh v. State, 105 Ind. 117; Johns v. State, 104 Ind.
557; Elkhart Mut. Aid, B. & R. Ass'n v. Houghton, 103 Ind. 286;
Kennedy v. Anderson, 98 Ind. 151; Stockton v. Stockton, 73 Ind.
510; StuU V. Howard, 26 Ind. 456; Buntin v. Weddle, 20 Ind. 449;
Patchell v. Jaqua, 6 Ind. App. 70; Walter v. Uhl, 3 Ind. App. 219;
Gould V. O'Neal, 1 Ind. App. 144.
Iowa.
Munn V. Shannon, 86 Iowa, 363; Johnson v. Knudtson, 82 Iowa,
762; State v. Wyatt, 76 Iowa, 328; Fernbach v. City of Waterloo,
76 Iowa, 598; Warbasse v. Card, 74 Iowa, 306; State v. Broadwell,
73 Iowa, 765; Muir v. Miller, 72 Iowa, 585; Armstrong v. Killen, 70
Iowa, 51; Davis v. Walter, 70 Iowa, 465; State v. Brewer, 70 Iowa,
384; Huff v. Aultman, 69 Iowa, 71; State v. Hunter, 68 Iowa, 447;
Holland v. Union County, 68 Iowa, 56; State v. Williamson, 68 Iowa,
351; Leiber v. Chicago, M. & St. P. Ry. Co., 84 Iowa, 97; State v.
Hemrick, 62 Iowa, 414; Wood v. Porter, 56 Iowa, 161; McMillan v.
Burlington & M. R. Co., 46 Iowa, 231; State v. Moore, 77 Iowa, 449;
Blackburn v. Powers, 40 Iowa, 681; Rice v. City of Des Moines, 40
Iowa, 638; Wallace v. Robb, 37 Iowa, 192; Gantz v. Clark, 31 Iowa,
(852)
Ch. 32] REVIEW ON APPEAL. | a76
254; Bridgman v. Steamboat Emily, 18 Iowa, 500; Havetlck y. Hays'
lick, 18 Iowa, 575; Abrams T. Foshee, 3 Iowa, 274; Mainer v. Beyii'
olds, 4 Gr. Greene, 187.
Kansas.
Wilson V. Fuller, 9 Kan. 176; Paclfle R. Co. v. Nash, 7 Kan, 280;
Educational Ass'n v. Hitchcock, 4 Kan. 36; Linton t. Housh, 4 Kan,
536.
Kentucky.
Licking Rolling Mill Co. v. Fischer, 88 Ky. 176; Hunt v. Kemper,
10 Ky. Law Rep. 593, 9 S. W. 803.
Louisiana.
State V. Bird, 38 La. Ann. 497.
Maryland.
Regester v. Medcalf, 71 Md. 528; Baltimore & O. R. Co. v. Resley,
14 Md. 424; Burtles v. State, 4 Md. 273; Bullitt v. Musgrave, 3 Gill,
81; Whiteford v. Burckmyer, 1 Gill, 127.
Massachusetts.
Linton v. Allen, 154 Mass. 432; Khron v. Brook, 144 Mass. 516;
Com. V. Ford, 146 Mass. 131.
MicMgan.
Stanton v. Estey Mfg. Co., 90 Mich. 12; Kimball v. Macomber, 50
Mich. 362; Kline v. Kline, 49 Mich. 419; Hart v. Newton, 48 Mich.
401; Brown v. Dunckel, 46 Mich. 29; People v. Niles, 44 Mich. 606;
Paine v. Ringold, 43 Mich. 341; Farmers' Mut. Fire Ins. Co. v.
Gargett, 42 Mich. 289; Cummins v. People, 42 Mich. 142; Hall v.
Johnson, 41 Mich. 286; Fowler v. Gilbert, 38 Mich. 292; Wicks v.
Ross, 37 Mich. 464; Hayes v. Homer, 36 Mich. 374; Greenlee v.
Lowing, 35 Mich. 63; Herbstreit v. Beckwith, 35 Mich. 93; Curley
V. Wyman, 34 Mich. 353; English v. Caldwell, 30 Mich. 362; Tupper
V. Kilduff, 26 Mich. 394; Cook v. Hopper, 23 Mich. 511; TafE v. Hos-
mer, 14 Mich. 309; People v. McKinney, 10 Mich. 54.
Minnesota.
Erd V. City of St. Paul, 22 Minn. 443 ; Siebert v. Leonard, 21 Minn.
442; Stearns v. Johnson, 17 Minn. 142 (Gil. 116); Cogley v. Cush-
man, 16 Minn. 397 (Gil. 354); Desnoyer t. L'Hereux, 1 Minn. 17
(Gil.l).
Strickland v. Hudson, 55 Miss. 235; Kellum v. State, 64 Miss. 226.
(853)
§ 376 INSTRUCTIONS TO JURIES. [Ch. 32
Missouri.
State V. Miller, 100 Mo. 606; State v. Brown, 75 Mo. 317; State
V. Mallon, 75 Mo. 355; Cress v. Blodgett, 64 Mo. 449; Simpson v.
Schulte, 21 Mo. App. 639; McLain v. Winchester, 17 Mo. 49; Tatum
V. Anderson, 8 Mo. App. 574; Meade v. Weed, 45 Mo. App. 385; Whit-
ing V. City of Kansas, 39 Mo. App. 259; Campbell v. Buller, 32 Mo.
App. 646; Wilkerson v. Corrlgan Consolidated St. Ry. Co., 26 Mo.
App. 144; Estes v. Fry, 22 Mo. App. 80; Pink y. Regan, 22 Mo. App.
475; Field v. Crecelius, 20 Mo. App. 302.
Montana.
Territory y. Scott, 7 Mont. 407.
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.
Plannery v. Van Tassell, 56 Hun, 647, 9 N. Y. Supp. 871; Grouse
V. Owens, 49 Hun, 610, 3 N. Y. Supp. 863; Vosburgh v. Teator, 32
N. Y. 561; Rumsey v. New York & N. E. R. Co., 63 Hun, 200; New
York Marine Bank v. Clements, 6 Bosw. 166; Flannery v. Van Tas-
sell, 32 N. Y. St. Rep. 350; Winterson v. Eighth Ave. R. Co., 2 Hilt.
389.
North Carolina.
State V. Dickerson, 98 N. C. 708; Willey v. Norfolk Southern R.
Co., 96 N. C. 408; State v. Nipper, 95 N. C. 653; Cowles v. Richmond
& D. R. Co., 84 N. C. 309; Chasteen v. Martin, 84 N. C. 391; State
V. Craige, 89 N. C. 475; Honeycut v. Angel, 20 N. C. 306.
Oregon.
Coffin V. Taylor, 16 Or. 375.
Rhode Island.
Heaton v. Manhattan Fire Ins. Co., 7 R. I. 502.
Texas.
King V. State (Tex. Cr. App.) 21 S. W. 190; Seal v. State, 28
Tex. 491.
(854)
Cb. 32] REVIEW ON APPEAL. § 375
West Virginia.
Kinsley v. Monongalia County Court, 31 W. Va. 464; Hood v. Max-
well, 1 W. Va. 219.
Wisconsin.
Benton v. City of Milwaukee, 50 Wis. 368; White v. Goodrich Trans-
portation Co., 46 Wis. 493; Darling v. Conklin, 42 Wis. 478; State
V. Babcock, 42 Wis. 138; Brabbits v. Chicago & N. W. Hy. Co., 38
Wis. 289; Killips v. Putnam Fire Ins. Co., 28 Wis. 472; Kelley v.
Kelley, 20 Wis. 443; Parish v. Eager, 15 Wis. 532; Graves v. State,
12 Wis. 591; O'Malley v. Dorn, 7 Wis. 236; Townsends v. Racing
Bank, 7 Wis. 185.
United States.
Ames V. Qulmby, 106 U. S. 342; Atchison, T. & S. P. R. Co. v.
Howard (C. C. A.) 49 Fed. 206. An oral charge will be presumed
correct, but not a written one. Newton v. State, 3 Tex. App. 245.
Presumption of correctness as a whole.
"Where the error alleged is the giving of an instruction, it must
appear that such instruction is so full and complete and so mani-
festly 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." Morgan v. Chap-
pie, 10 Kan. 216.
Sufflciency of answer to inquiry of jury.
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. Herbstreit v. Beckwith, 35
Mich. 95.
Evidence presumed to support charge.
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.n^a
iiTa Alabama: Nesbitt v. Pearson's Adm'rs, 33 Ala. 668; McLe-
more v. Nuckolls, 37 Ala. 662; Tempe v. State, 40 Ala. 350; Wilson
V. Calvert, 18 Ala. 274; Moore v. State, 18 Ala. 532; Jones v. Stewart,
19 Ala. 701; Leverett's Heirs v. Carlisle, 19 Ala. 80; McElhaney v.
State, 24 Ala. 71; Morris v. State, 25 Ala. 57.
Arkansas: Bach v. Cook, 21 Ark. 571; Duggins v. Watson, 15
Ark. 118; Pogue v. Joyner, 7 Ark. 463.
Indiana: Schoonover v. Irwin, 58 Ind. 287; Franklin Ins. Co. v.
(855)
I 376 INSTRUCTIONS TO JURIES. [Qh. 32
Refused requests presumed unauthorized tiy evidence.''-''-''^
"It must be presumed that the court below acted correctly In
refusing instructions, * * * unless it appear, by facts or testi-
Culver, 6 Ind. 137; Beller v. State, 90 Ind. 448; Wright v. Gully, 28
Ind. 475; Black v. Daggy, 13 Ind. 383; Newton v. Newton, 12 Ind.
527; Hoover v. Wood, 9 Ind. 286; Starry v. Winning, 7 Ind. 311;
Taber v. Hutson, 5 Ind. 322; Ketcham v. New Albany & S. R. Co., 7
Ind. 391; Ball v. Cox, 7 Ind. 453; Nelson v. Robertson, 7 Ind. 5.31;
Jarvls V. Strong, 8 Ind. 284; Murray v. Fry, 6 Ind. 371; Sloan v.
State, 8 Ind. 312; Morton v. Stevens, 5 Ind. 519; Abrams v. Smith,
8 Blackf. 95; Downey v. Day, 4 Ind. 531; Shaw v. State, 4 Ind. 553;
Ashby V. West, 3 Ind. 170; Wiley v. Doe, 2 Ind. 230; Harvey v.
Laflin, 2 Ind. 477; State v. Beackmo, 8 Blackf. 246; Collis v. Bowen,
8 Blackf. 262; Kinsey v. Grimes, 7 Blackf. 290; Fuller v. Wilson, 6
Blackf. 403; English v. Devarro, 5 Blackf. 588; Rogers v. Lamb, 3
Blackf. 155; Merrick v. State, 63 Ind. 327; Dennerline v. Gable, 73
Ind. 210; City of Indianapolis v. Scott, 72 Ind. 196; Pate v. Tait, 72
Ind. 450; Audleur v. Kuffel, 71 Ind. 543; Shinn v. State, 68 Ind. 423;
Higbee v. Moore, 66 Ind. 263; Wilkinson v. Applegate, 64 Ind. 98;
Stull V. Howard, 26 Ind. 456; White v. Jackson, 15 Ind. 156; Hand
V. Taylor, 4 Ind. 409; Conklin v. White Water Valley Canal Co., 3
Ind. 506; Marquis v. Rogers, 8 Blackf. 118; Davidson v. Nicholson,
59 Ind. 411; Boyd v. Wade, 58 Ind. 138; Lewellen v. Garrett, 58 Ind.
442; Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315; Wade v. Guppin-
ger, 60 Ind. 376; Columbus, C. & I. C. Ry. Co. v. Towell, 40 Ind. 37;
List V. Kortepeter, 26 Ind. 27.
Iowa: Rice v. City of Des Moines, 40 Iowa, 638; State v. Hem-
rick, 62 Iowa, 414; Wallace v. Robb, 37 Iowa, 192; State v. Wyatt,
76 Iowa, 328; Blackburn v. Powers, 40 Iowa, 681; Gantz v. Clark, 31
Iowa, 254; State v. Postlewait, 14 Iowa, 446; Mcintosh v. Kilbourne,
37 Iowa, 420; Laughlin v. Main, 63 Iowa, 580; Bridgman v. Steam-
boat Emily, 18 Iowa, 509; State v. Rice, 56 Iowa, 431; Roby v.
Appanoose County, 63 Iowa, 113.
Mississippi: Kellum v. State, 64 Miss. 226; Strickland T. Hudson,
55 Miss. 235.
Nevada: State v. Loveless, 17 Nev. 424.
New Hampshire: Rowell v. Chase, 61 N. H. 135.
Ohio: Cresinger v. Welch's Lessee, 15 Ohio, 156.
Pennsylvania: Gifford v. Gifford, 27 Pa. 202.
United States: Wiggins v. Burkham, 10 Wall. 129.
117b Alabama: Gill v. State, 43 Ala. 38; Williams v. Barksdale, 58
Ala. 288.
(856)
eh. 32] REVIEW ON APPEAL. § 376
mony incorporated In the bill of exceptions, tliat the instructions
were relevant or irrelevant to the cause." Shepherd v. McQuilkin,
2 W. Va. 90. "If instructions asked by either party be refused, and
he excepts, it devolves upon him to set forth, in his exception, 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 con-
Arkansas: Duggins V. Watson, 15 Ark. 118; Pogue v. Joyner, 7 Ark.
463.
California: California Cent. Ry. Co. v. Hooper, 76 Cal. 404; Car-
penter V. Swing, 76 Cal. 487.
District of Columbia: Oliver v. Cameron, MacArthur & M. 237.
Florida: Sammis v. Wightman, 31 Fla. 45; Myrick v. Merrltt, 22
Fla. 335; Livingston v. Cooper, 22 Fla. 292; Blige v. State, 20 Fla.
742; Prisbee v. Timanus, 12 Fla. 537; Tompkins v. Eason, 8 Fla. 14;
Burk V. Clark, 8 Fla. 9; Miller v. Kingsbury, 8 Fla. 357; McKay v.
Friebele, 8 Fla. 21; Bailey v. Clark, 6 Fla. 516; Proctor v. Hart, 5
Fla. 465; Horn v. Gartman, 1 Fla. 73.
Illinois: Amos v. Sinnott, 5 111. 440.
Indiana: Silver v. Parr, 115 Ind. 113; Joseph v. Mather, 110 Ind.
114; Shulse v. McWilliams, 104 Ind. 512; Baltimore & 0. & C. R.
Co. V. Rowan, 104 Ind. 88; Johns v. State, 104 Ind. 557; Elkhart Mut.
Aid, B. & R. Ass'n v. Houghton, 103 Ind. 286; Unruh v. State, 105
Ind. 117; Stout v. Turner, 102 Ind. 418; Blizzard v. Bross, 56 Ind.
V4; Jeffersonville, M. & I. R. Co. v. Cox, 37 Ind. 325; Ruffing v.
Tilton, 12 Ind. 259; Patehell v. Jaqua, 6 Ind. App. 70; Sheeks v.
Fillion, 3 Ind. App. 262; Sandford Tool & Fork Co. v. Mullen, 1 Ind.
App. 204; State v. Beackmo, 8 Blackf. 246; Yates v. George, 51 Ind.
224; Walters v. Hutchins' Adm'x, 29 Ind. 136; Coyner v. Lynde, 10
Ind. 282; Powers v. State, 87 Ind. 144; Weir Plow Co.. v. Walmsley,
110 Ind. 242; Powell v. Pierce, 11 Ind. 322; New Albany & S. R. Co.
V. Callow, 8 Ind. 471; Woolley v. State, 8 Ind. 502; Jolly v. Terre
Haute Drawbridge Co., 9 Ind. 417; Griffin v. Templeton, 17 Ind. 234.
Iowa: Little v. Martin, 28 Iowa, 558; Shephard v. Brenton, 20
Iowa, 41; Stier v. City of Oskaloosa, 41 Iowa, 353; State v. Moore,
77 Iowa, 449; State v. Wyatt, 76 Iowa, 328; State v. Daniels, 76 Iowa,
87; Warbasse v. Card, 74 Iowa, 306; State v. Brewer, 70 Iowa, 384;
Huff V. Aultman, 69 Iowa, 71; Holland v. Union County, 68 Iowa, 56;
State V. Hunter, 68 Iowa, 447; State v. Williamson, 68 Iowa, 351;
State V. Goode, 68 Iowa, 593.
Kansas: St. Joseph & D. C. R. Co. v. Orr, 8 Kan. 419; Missouri
(857)
§ 376 INSTRUCTIONS TO JURIES. [Ch. 33
tradicts or is Inconsistent witli the pleadings." Diggins v. Watson,
15 Ark. 118.
Presumption as to treatment of charge ty jury — Jury's understand-
ing of charge.
It will be presumed that the jury was capable of understanding,
and that they did understand, the charge correctly.
California.
People V. Bagnell, 31 Cal. 409.
Illinois.
Massachusetts Mut. Life Ins. Co. v. Robinson, 98 111. 324.
Indiana.
Browning v. Hight, 78 Ind. 257; Union Mut. Life Ins. Co. v.
Buchanan, 100 Ind. 63; Louisville, N. A. & C. Ry. Co. v. Falvey, 104
Ind. 409.
Michigan.
Pray v. Cadwell, 50 Mich. 222.
Minnesota.
Siebert v. Leonard, 21 Minn. 442; Erd v. City of St. Paul, 22 Minn.
443.
Texas.
Brunswig v. White, 70 Tex. 504; Ft. Worth & D. C. Ry. Co. v.
Greathouse, 82 Tex. 104.
It cannot be assumed as a question of law that a jury understands
an instruction given by the court in a sense aiflerent from that in
which it is commonly understood by those outside the jury box. Peo-
River, Ft. S. & G. R. Co. v. Owen, 8 Kan. 409; State v. Cassady, 12
Kan. 551; Educational Ass'n v. Hitchcock, 4 Kan. 36.
Maryland: Regester v. Medcalf, 71 Md. 528.
Michigan: Hayes v. Homer, 36 Mich. 374; Curley v. Wynian, 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. Crecelius, 20 Mo. App. 302.
Montana: Territory v. Scott, 7 Mont. 407.
Nebraska: Willis v. State, 27 Neb. 98.
North Carolina: State v. Dickerson, 98 N. C. 708.
Ohio: Cresinger v. Welch's Lessee, 15 Ohio, 156; Davis v. State,
25 Ohio St. 369.
Oregon: Richards v. Fanning, 5 Ore. 356.
South Carolina: State v. Robinson, 35 S. C. 340.
(858)
Ch. 32] REVIEW ON APPEAL. § 375
pie V. Welch, 49 Cal. 174. "It will be presumed that the jury under-
stood instructions as they commonly impress the mind." Massachu-
setts Mut. Life Ins. Co. v. Robinson, 98 111. 324. The jury will be pre-
sumed to have correctly understood the terms "willfully" and "mali-
ciously," used in the instructions without definition, where they were
used in their ordinary sense, and the evidence was clear, as it will be
presumed to be when it is not all contained in the bill of exceptions.
State V. Harkins, 100 Mo. 666. Where the court's charge is suscep-
tible 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.
Davis V. State, 25 Ohio St. 369. Especially where no objection is
made to the charge in the trial court. Erd v. City of St. Paul, 22
Minn. 443; Siebert v. Leonard, 21 Minn. 442. Where a judge told
the jury that there was nothing said concerning a particular item,
overlooking the fact that there was evidence given regarding such
item, it will be assumed, notwithstanding, that the jury had that
evidence in mind when considering the verdict. Herst v. De Comeau,
1 Sweeny (N. Y.) 590. 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.
Mooney v. Olsen, 22 Kan. 69.
Remarks not addressed to jury. '
It will not be presumed that the jury heard or was controlled by
remarks of the court not addressed to them. Praim v. National
Fire Ins. Co., 170 Pa. 151.
Application of charge.
If the charge contains an abstract proposition of law, having 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. People v. Reynolds, 2 Mich. 422. 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. Rogers v. Wallace, 10 Or.
387. "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." Pettibone v. Mac-
West Virginia: Kinsley v. Monongalia County Court, 31 W. Va.
464.
(859>
§ 376 INSTRUCTIONS TO JURIES. [Ch. 32
lem, 45 Mich. 381. Where the charge makes reference to preceding
parts of the charge, it will be presumed that the Jury considered
such preceding parts. Missouri Pac. Ry. Co. v. James (Tex.) 10
S. W. 332.
Presumption that jury considered charge as a whole.
The jury will be presumed to have considered the Instruction as
a whole, and therefore, if correct as a whole, no error is commit-
ted.iiTc Where charge is of excessive length, or involved, the pre-
sumption that the jury considered it as a whole may be rebutted.u'd
Consideration of evidence under charge.
It will not be presumed that the jury disregarded instructions that
evidence admitted for one purpose only could be considered for no
other purpose. Lawrence v. Towle, 59 N. H. 28. A jury will be
presuroed to have done their duty, and not to have tampered with
certain depositions excluded by the court, but Inadvertently taken
out upon retiring. Phoenix Ins. Co. v. Underwood, 12 Heisk. (Tenn.)
424. Where evidence was admitted upon condition that the party
introducing it would prove another material and 'sonnected fact,
which he was unable to prove, the jury should disregard such
evidence; and, though they were not expressly instructed so to do,
117c Arkansas: Ward v. Blackwood, 48 Ark. 396.
Florida: Andrews v. State, 21 Fla. 598.
Indiana: Pennsylvania Co. v. McCormack, 131 Ind. 250; Boyle v.
State, 105 Ind. 469.
Iowa: State v. Williams, 70 Iowa, 52; Davis v. Walter, 70 Iowa,
467; State v. Mahan, 68 Iowa, 304; Gee v. Moss, 68 Iowa, 318.
Michigan: Hart v. Newton, 48 Mich. 401.
South Carolina: Carolina, C. G. & C. Ry. Co. v. Seigler, 24 S. C.
125.
Texas: Continental Ins. Co. v. Pruitt, 65 Tex. 126; Hodges v.
State, 22 Tex. App. 415; Missouri Pac. Ry. Co. v. James (Tex.) 10 S.
W. 332.
117a District of Columbia: United States v. Hamilton, 4 Mackey,
D. C. 446.
Indiana: Louisville, N. A. & C. Ry. Co. v. Jones, 108 Ind. 551;
Town of Rushville v. Adams, 107 Ind. 475; Conrad v. Kinzie, 105
Ind. 281; Louisville, N. A. & €. Ry. Co. v. Grantham, 104 Ind. 853.
Missouri: Yocum v. Town of Trenton, 20 Mo. App. 489; Kennedy
V. Klein, 19 Mo. App. 15; State v. True, 20 Mo. App. 176, 2 Western
Rep. 602.
New York: Cumming v. Brooklyn City R. Co., 104 N. T. 669.
(860)
Ch. 32] REVIEW ON APPEAL. § 375
yet, as the proceedings were had in their presence, the court wlllf
presume they did disregard it. Inhabitants of Bangor v. Inhabitants
-of Brunswick, 30 Me. 398.
Presumption as to statement of charge in record.
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. State
V. Harden, 11 S. C. 366. 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.
Presumption as to requests.
The supreme court will not presume that instructions which ap-
pear from the record to have been asked at a former trial were
again asked at a subsequent trial. McAlpin v. Ziller, 17 Tex. 508.
In Wragge v. South Carolina & G. R. Co., 47 S. C. 105, it was said
that it would be assumed that requests were submitted in proper
form, in the absence of objection on that ground.
Presumption as to requests and charges ieing in writing.
Under a statute requiring requests 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 requests were oral, and hence properly refused. Louisville & N.
R. Co. V. Orr, 94 Ala. 602; Bellinger v. State, 92 Ala. 86; Crosby
V. Hutchinson, 53 Ala. 5; Winslow v. State, 76 Ala. 42; 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 nec-
essary, and the record shows nothing to the contrary. Citizens' P.
& M. Ins. Co. V. Short, 62 Ind. 316; Hardwick v. State, 6 Lea (Tenn.)
229; Meshke v. Van Doren, 16 Wis. 319; Lower v. Franks, 115 Ind.
339. 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 extract was tran-
scribed into the written instructions given. Citizens' 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 instructions to be
in writing. _ O'Hara v. King, 52 111. 304.
Presumption that charge was taken down hy stenographer.
"He asks for a reversal upon the ground that the court orally in-
structed the jury, and that such instructions, when given, were not
(861)
§ 376 INSTRUCTIONS TO JURIES. [Ch. 32
taken down by the phonographic reporter, as contemplated by sec-
tion 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 phono-
graphic 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, citing People v. Ferris, 56 Cal. 442. See,
also, to the same effect. People v. Bumberger, 45 Cal. 650; State v.
Preston (Idaho) 38 Pac. 694.
Presumption as to giving and refusing charges.
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, without stating in terms whether
it give 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. Y. 41. "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 record does not
■ show reason why an instruction was refused, nor exclude presump-
tion 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.
Presumption as to marking "Given" or "Refused."
It will be presumed, nothing appearing to the contrary, that re-
quests were properly marked "Given" or "Refused," as required by
statute. Allen v. State, 74 Ala. 557.
Announcing rulings in writing to jury.
Nothing appearing to the contrary, it will be presumed that the
court conformed to the law in declaring in writing to the jury his
rulings upon requests for instructions as presented, and pronounced
the same to the jury as "Given" or "Refused." Jones v. State, 18
Fla. 889.
Presumption that jury requested charge as to form of verdict.
"The statute (Acts 1881, p. 115) authorizes a court in all civil
cases, on requests of the jury, to instruct them on the form of their
verdict, and such request will be presumed where the court so in-
(862)
Ch. 32] REVIEW ON APPEAL. § 377
structs, unless the contrary appears." Pool v. Gramling, 88 Ga.
653.
Presumption that charges were given as asked.
"Where the record contains charges asked by the appellant, but
does not show whether they were given or refuse!!, and the refusal
of them is not assigned for error, it is to be presumed that they
were given as asked." Seal v. State, 28 Tex. 491.
Presumption as to rule of court.
"Where the bill of exceptions shows that an instruction was re-
fused 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 absence of any showing to the
contrary in the bill of exceptions, 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 re-
fused." Illinois Cent. R. Co. v. Haskins, 115 111. 300.
Statements in instructions presumed true.
All statements of fact in instructions 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. Estey Mfg. Co., 90 Mich. 12.
Presumption as to facts proved.
If instructions are not hypothecated on the finding of any fact,
the court above should assume as proven every fact which the evi-
dence conduced to prove. Colyer v. Whitaker, 2 A. K., Marsh. (Ky.)
197. Where a verdict is directed by the court, and neither party
has asked that the jury be instructed to pass upon any ctuestions,
every fact, having the support of sufficient evidence, is presumed
to have been found in favor of the successful party. Sutter v. Van-
derveer, 122 N. Y. 652, affirming 47 Hun, 366, 14 N. Y. St. Rep. 501.
Presence of couns ' or accused.
In a criminal case, it will be presumed, in support of the judg-
ment, 'unless the record shows the contrary, that further instruc-
tions, given after the retirement of the jury, were given in the
presence of counsel. Pearce v. Com., 19 Ky. Law Rep. 782, 42 S. W.
107. So it will be presumed that the accused was present. State
V. Miller, 100 Mo. 606.
§ 377. Presumption of prejudice.
It is an elementary rule, enforced and applied by all ap-
pellate courts, that a judgment will not be reversed because
(863)
§ 377 INSTRUCTIONS TO JURIES. [Ch. 32
of errors wliich did not prejudice the party complaining;
Harmless error is never a ground for reversal. This doc-
trine is, of course, applicable to errors in instructions, as
well as to other errors. The particular consideration of
harmless and reversible error is reserved for a later sec-
tion."8
As was seen in the preceding section, the burden is on the
appellant to show error afBrmatively upon the record; but
, there is considerable conflict in the decisions as to whether
he must not go further, and show not only error, but ihat
the error actually or probably operated to his prejudice.
According to one line of cases, error in giving or refusing
instructions^ ^^ is presumed to be prejudicial, and the judg-
ment will be reversed unless it afiirmatively appears from
the record that the error in the particular case was harm-
less.^^° This appears to be the sound and correct rule. In-
ns See post, §§ 386-391, "Harmless and Reversible Error."
no There is no distinction in law between the giving of erroneous
instructions and the withholding of proper instructions. Either, if
it works injustice, constitutes error. Greenup v. Stoker, 2 Gilm.
(111.) 688.
i20Fick V. Mohr, 92 111. App. 280; Bindbeutal v. Street Ry. Co.,
43 Mo. App. 463; State v. Taylor, 118 Mo. 153; State v. Forrester,
63 Mo. App. 530; Witt v. State, 6 Cold. (Tenn.) 5; Gulf, C. & S. F.
Ry. Co. V. Darton (Tex. Civ. App.) 23 S. W. 89; Sessengut v. Posey,
67 Ind. 4C8; People v. Smith, 105 Cal. 676; State v. Empey, 79 Iowa,
460; State v. Jacobs, 75 Iowa, 247; Pendleton St. R. Co. v. Stall-
mann, 22 Ohio St. 1; Haney v. Marshall, 9 Md. 194; Grand Rapids
& I. R. Co. V. Monroe, 47 Mich. 152; State v. Ferguson, 9 Nev. 106;
Meek v. Pennsylvania Co., 38 Ohio St. 632, 639; Jones v. Bangs, 40
Ohio St. 139; Baldwin v. Bank of Massilon, 1 Ohio St. 141; Lowe
V. Lehman, 15 Ohio St. 179; Bissell v. Wert, 35 Ind. 54; Amaker
v. New, 33 S. C. 28; Bonham v. Bishop, 23 S. C. 103; Strader v.
Goff, 6 W. Va. 258; Nicholas v. Kershner, 20 W. Va. 251; State v.
Douglass, 28 W. Va. 298; Dinges v. Branson, 14 W. Va. 100; City
of Lafayette v. Ashby, 8 Ind. App. 214, 231; Gillett v. Corum, 5
Kan. 608; Gulf, C. & S. F. Ry. Co. v. Greenlco, 62 Tex. 344; Hudson
(864)
Ch. 32] REVIEW ON APPEAL. § 377
structions are presumed to have been followed by the jury,
and to have affected the verdict.'^^^ Therefore, where error
is shown, prejudice is also shown unless the record goes fur-
ther and shows that, notwithstanding the error, the party was
not prejudiced.^^^
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
afSrmatively upon the record that the error produced actual,
or at least possible or probable, injury.^^^
V. Morriss, 55 Tex. 595; Franklin v. Smith, 1 Posey, Unrep. Caa.
(Tex.) 229; Willis v. Kirbie, 1 Posey, Unrep. Cas. (Tex.) 304;
Dwyer V. Continental Ins. Co., 57 Tex. 181; Linney v. Wood, 66 Tex.
22; Greene v. White, 37 N. Y. 405; Nicholson v. Conner, 9 Daly
(N. Y.) 275; Carlin v. Chicago, R. I. & P. R. Co., 31 Iowa, 370; Pot-
ter V. Chicago, R. I. & P. R. Co., 46 Iowa, 399; Roby v. Appanoose
County, 63 Iowa, 113; Barnett v. Com., 84 Ky. 449; Terry v. State,
17 Ga. 204; Kendig v. Overhulser, 58 Iowa, 195; Tompkins v. West,
56 Conn. 487; Cox v. People, 109 111. 457; Benham v. Cary, 11 Wend.
(N. Y.) 83; Tufts v. Seabury, 11 Pick. (Mass.) 142; Potts v. House,
6 Ga. 325; Hastings v. Bangor House Proprietors, 18 Me. 436. See,
also, Burkham v. Daniel, 56 Ala. 604.
121 Lowe V. Lehman, 15 Ohio St. 179; Needham v. People, 98 111.
275; Mitchell v. Illinois & St. L. R. & C. Co., 85 111. 566; Stanr.on v.
French, 91 Cal. 274; Pettlbone v. Maclem, 45 Mich. 381. Obviously,
this presumption may work both ways. It may either operate to
render certain errors harmless, or to render erroneous Instructions
reversible, by showing them to have been prejudicial.
122 Lowe V. Lehman, 15 Ohio St. 179.
123 See the following cases: Wood v. Porter, 56 Iowa, 161; Noe
V. Hodges, 5 Humph. (Tenn.) 103; Burton v. Boyd, 7 Kan. 17;
Central Branch Union Pac. R. Co. v. Andrews, 41 Kan. 371; John-
son V. Leggett, 28 Kan. 590; State v. Hill, 39 La. Ann. 927; Salinas
V. Wright, 11 Tex. 572; Hollingsworth v. Holshousen, 17 Tex. 41;
Loper v. Robinson, 54 Tex. 510; Eyser v. Weissgerber, 2 Iowa, 463;
Easley v. Valley Mut. Life Ass'n, 91 Va. 161. See, also, post, §§
386-391, "Harmless and Reversible Error."
(865)
55— Ins. to Juries.
§ 377 INSTRUCTIONS TO JURIES. [Ch. 32
§ 378. Same — Digest of decisions.
View that error is prima facie prejudicial.
"Where an instruction is erroneous, and all the evidence Is not
in the record, the judgment must be reversed, as the court cannot
say that the error did no harm. Witt v. State, 6 Cold. (Tenn.) 5;
Gulf, C. & S. F. Ry. Co. v. Darton (Tex. Civ. App.) 23 S. W. 89;
Baldwin v. Bank of Massilon, 1 Ohio St. 141; Jones v. Bangs, 40
Ohio St. 139; Bissell v. Wert, 35 Ind. 54. Where the evidence is
not in the record, the appellate court cannot say that an instruc-
tion that an insufficient answer constituted no defense cured the
error in overruling a demurrer to such answer. Sessengut v. Po-
sey, 67 Ind. 408. See, also, as to necessity of preserving evidence
in record, ante, § 374.
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 additional 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. Amaker -v. New, 33
S. C. 28, following Bonham v. Bishop, 23 S. C. 103.
Inconsistent instructions will be presumed to have been preju-
dicial. Grand Rapids & I. R. Co. v. Monroe, 47 Mich. 152; State v.
Ferguson, 9 Nev. 106. "Where the instructions to the jury are
clearly erroneous and calculated to mislead, to the injury of a
party, to sanction the judgment which follows, it should be clear
that such a consequence did not in fact ensue from the error."
Hudson v. Morriss, 55 Tex. 595; Gulf, C. & S. P. Ry. Co. v. Greenlee,
62 Tex. 344.
A misleading or erroneous charge of the court will be presumed
prejudicial unless the contrary appears, for which the evidence It-
self, and not merely what it tends to prove, must be before the re-
viewing court. Meek v. Pennsylvania Co., 38 Ohio St. 632, 639.
Where an instruction was such that it would permit a conviction
upon proof that an act was committed which was not prohibited
by law when done, it is erroneous, and, in the absence of evidence
to the contrary, it will be presumed that it was prejudicial. State
V. Jacobs, 75 Iowa, 247.
Where the record does not show on what the verdict of the jury
was based, it cannot be determined that a charge was not prejudicial
which submitted to the jury a measure of damages with reference
to which there was neither allegation nor proof. Gulf, C. & S. P.
Ry. Co. V. Darton (Tex. Civ. App.) 23 S. W. 89.
(866)
Ch. 32] REVIEW ON APPEAL. § 373
"Where the evidence is so unsatisfactory on the vital points in
the case as to render it extremely doubtful, in the mind of the
court, whether the verdict was right, error in giving and refusal
to give instructions will be presumed to have been harmful, and
will work a reversal." City of Lafayette v. Ashby, 8 Ind. App. 214,
231.
An instruction as to making one a principal in a prime, where
there is no evidence upon which to base it, is erroneous, and prej-
udice will be prima facie presumed, though this presumption may
be rebutted by an aiHrmative showing that it was, in fact, harm-
less. People v. Smith, 105 Cal. 676.
View that prejudice must 'be affirmatively shown.
The mere fact that a court refused to give an instruction asked
by one of the parties which it might properly have given does not
prove that such refusal was an error working substantial injury to
the rights of the party asking the instruction. Johnson v. Leg-
gett, 28 Kan. 590. Although It may be error for the court to give
as an instruction to the jury an abstract proposition of law that
has no application to the case under consideration, yet, unless it be
made reasonably to appear that the jury were misled by such in-
struction, the judgment of the court below will not be reversed for
such error. Burton v. Boyd, 7 Kan. 17. "The refusal of the court
to charge the jury, in a civil action, that each juror must ultimate-
ly act upon his individual judgment, where it does not appear that
there was any special necessity for such an instruction, or that
any prejudice resulted therefrom, is not reversible error." Central
B. U. P. R. Co. V. Andrews, 41 Kan. 371. "It is not every error In
the rulings 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 error as to induce the
belief that, but for its commission, a verdict favorable to the occa-
sion might have been returned." State v. Hill, 39 La. Ann. 927.
Actual or possible prejudice must be shown, to authorize a reversal.
Salinas v. Wright, 11 Tex. 572; Hollingsworth v. Holshousen, 17
Tex. 41; Loper v. Robinson, 54 Tex. 510; Brighthope Ry. Co. v.
Rogers, 76 Va. 443; Baltimore & 0. R. Co. v. McKenzie, 81 Va. 71;
Preston v. Harvey, 2 Hen. & M. (Va.) 55. Though a doubt as to
whether or not injury was done is sufficient to authorize a rever-
sal. Boren v. State, 32 Tex. Cr. App. 637. Where the court instructs
on contributory negligence, though that issue is not raised by the
pleadings, a reviewing court will presume that the verdict was based
on other grounds than contributory negligence, if there was no evl-
dei^ce of such negligence. Eckelund v. Talbot, 80 Iowa, 571. If
(86Y)J
§ 379 INSTRUCTIONS TO JURIES. [Ch. 33
an erroneous charge be given as to the mode of computing dam-
ages, but no bill of exceptions be filed, showing that the actual
damages allowed by the jury were enhanced by applying the er-
roneous principle of computation, the verdict will not be disturbed.
The court will presume, in such case, that the jury did right, not-
withstanding the erroneous charge. Noe v. Hodges, 5 Humph.
(Tenn.) 103.
If an instruction states facts as established which are admitted
or uncontradicted, no presumption of injury arises unless the rec-
ord 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 judg-
ment will be reversed, but not where the prejudice is not mani-
fest. Eyser v. Wteissgerber, 2 Iowa, 463.
IV. Invited Eeeob.
§ 379. Instructions given or refused on party's own motion.
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 pre-
sented by the instructions given at his instance, and, if they
are erroneous, he cannot be heard to complain.^ ^* For the
124 California: Harrison v. Spring Valley Hydraulic Gold Co., 65
Cal. 376.
Indiana: Minot v. Mitchell, 30 Ind. 228; Cobb v. Krutz, 40 Ind.
323; Pennsylvania Co. v. Roney, 89 Ind. 453; Worley v. Moore, 97
Ind. 16.
Kansas: Ft. Scott, W. & W. Ry. Co. v. Fortney, 51 Kan. 295;
Kansas Pac. Ry. Co. v. Cutter, 19 Kan. 83; Greer v. Higgins, 20 Kan.
420; State v. Reddick, 7 Kan. 144; Chicago, K. & W. R. Co. v. Wat-
kins, 43 Kan. 50.
Maine: Robinson v. White, 42 Me. 209.
Maryland: Keener v. Harrod, 2 Md. 63.
Missouri: Musser v. Adler, 86 Mo. 445; Jennings v. St. Louis, I.
M. & S. Ry. Co., 99 Mo. 394; Tetherow v. St. Joseph & D. M. R. Co.,
98 Mo. 74; Flowers v. Helm, 29 Mo. 324; Chamberlin v. Smith's
Adm'r, 1 Mo. 482.
North Carolina: Bule v. Buie, 24 N. C. 87; Moore v. Parker, 91
N. C. 275; McLennan v. Chisholm, 66 N. C. 100.
Pennsylvania: Benson v. Maxwell, 105 Pa. 274; Ritter v. Sieger,'
(868),
CIj. 32] REVIEW ON APPEAL. | 379
purposes of review, they will be conclusively presumed to
be correct.'^' The same rule applies to instructions given
105 Pa. 400; Hubley v. Vanhorne, 7 Serg. & R. 185; Prlchett v.
Cook, 62 Pa. 193.
South Carolina: Ellen v. Ellen, 16 S. C. 138; Oliver v. Sale, 17
S. C. 587.
Texas: Collins v. State, 5 Tex. App. 38; Hardy v. De Leon, 5
Tex. 211.
Virginia: Richmond & D. R. Co. v. Medley, 75 Va. 499; Murrell
V. Johnson's Adm'r, 1 Hen. & M. 450.
United States: Castle v. Bullard, 23 How. 172.
125 Kansas Pac. Ry. Co. v. Cutter, 19 Kan. 83.
Measure of damages.
"Where a party in a civil action tried before a jury requests the
court to instruct as to the measure of damages, and the court gives
the instructions prayed for, and the jury, in their special findings,
show that the verdict against the defendant embraces only such
damages as are included in the instruction requested," the party
cannot complain that the instruction Is erroneous. Chicago, K. &
W. R. Co. V. Watkins, 43 Kan. 50.
Reasonable use.
A party cannot object to an instruction submitting to the jury
the question of what constitutes. reasonable use, when, by his own
request, such question is submitted. Hess v. Newcomer, 7 Md. 325.
Instructions in accord with statement of counsel to jury.
Where counsel for defendant, in addressing the jury, states that,
in a certain contingency, they shall find for plaintiff, he cannot ob-
ject to an Instruction in accord with his own statement. Marquette,
H. & 0. R. Co. V. Marcott, 41 Mich. 433.
Instruction in conformity to plea.
A charge expressing the same idea conveyed by a plea, when taken
most strongly against the pleader, cannot be assigned as error, al-
though not correct if made entirely with reference to the evidence
adduced. Fort v. Barnett, 23 Tex. 460.
Modifications or additions.
An appellant cannot complain of the result of any of his own
modifications or additions to the prayer of the respondent, and can
only ask for a reversal of the judgment upon errors found in the
additions made by plaintiff to the instructions as modified and
amended at the defendant's instance. Calvert v. Coxe, 1 Gill (Md.)
95. And where a party asks an instruction which should not be
(869)
§ 380 INSTRUCTIONS TO JURIES. [Ch. 32
by the court whicli are substantially the same as tbose re-
quested, although the court may have expressed it in his own
language, or made other slight modifications.^^* So, the ap-
pellant cannot complain that an instruction was not given
which was refused at his request.^^'' 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.^^*
5 380. Same error committed by appellant.
A party cannot complain of instructions given at the in-
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. Ryan v. Donnelly, 71 111. 101.
i26Needham v. King, 95 Mich. 303; Harper v. Morse, 114 Mo. 317;
Reardon v. Missouri Pac. Ry. Co., 114 Mo. 384; Ft. Scott, "W. & W.
Ry. Co. v. Fortney, 51 Kan. 287; Illinois Cent. R. Co. v. Latimer,
128 111. 163; Solomon v. Friend, 42 111. App. 407; Com. v. Locke, 114
Mass. 288; Dawson v. Williams, 37 Net. 1; Martin v. Missouri Pac.
Ry. Co., 3 Tex. Civ. App. 133; Simpson v. Pegram, 112 N. C. 541; Camp-
bell V. Ormsby, 65 Iowa, 518; Weller v. Hawes, 49 Iowa, 45. Where
the court, in modifying an instruction asked, merely employed the
language used in another instruction given at the request of the
same party, such party will not be heard to complain that the in-
struction was erroneous. Pierce v. Millay, 62 111. 133. A charge
cannot be assigned as error where it is the same in substance as
one requested by the party complaining, but refused. Galveston, H.
6 S. A. Ry. Co. V. Smith (Tex. Civ. App.) 24 S. W. 668.
127 State V. Elliott, 90 Mo. 350; State v. Jackson, 99 Mo. 60.
WitUdrawal of instructions.
"A party to a cause, after excepting to an instruction as erro-
neous, will not be heard to complain because it was afterwards re-
voked and withdrawn from the Jury." Sittig v. Birkestack, 38 Md.
158.
i28Henke v. Babcock (Wash.) 64 Pac. 755.
(870)
Ch. 32] REVIEW ON APPEAL. § 380
stance of his adversary,'^® if instructions substantially the
same, and open to the same objections, are given at his own
120 McGonigle v. Daugherty, 71 Mo. 259; Holmes v. Braidwood, 82
Mo. 610; Crutchfield v. St. Louis, K. C. & N. Ry. Co., 64 Mo. 255;
Thorpe v. Missouri Pac. Ry. Co., 89 Mo. 650; Wear v. Buke, 23 III.
App. 323; Needham v. King, 95 Mich. 303; Baltimore & O. R. Co.
v. Resley, 14 Md. 424; O'Neal v. Knippa (Tex.) 19 S. W. 1020; State
t. Stewart, 90 Mo. 507; Fairbanks v. Long, 91 Mo. 628; Keen v.
Schnedler, 92 Mo. 516; Reilly v. Hannibal & St. J. R. Co., 94 Mo.
600; Hazell v. Bank of Tipton, 95 Mo. 60; Straat v. Hayward, 37
Mo. App. 585; Missouri Pac. Ry. Co. v. Schoennen, 37 Mo. App. 612;
Whitmore v. Supreme Lodge, K. & L. of H., 100 Mo. 46; Chicago,
S. P. & C. Ry. Co. V. Vivian, 33 Mo. App. 583; M. Porster Vinegar
Mfg. Co. V. Guggemos, 98 Mo. 391; Harrington v. City of Sedalia,
98 Mo. 583; Davis v. Brown, 67 Mo. 313; Soldanels v. Missouri Pac.
R. Co., 23 Mo. App. 516; City of Rockford v. Palver, 27 111. App.
604; Bybee v. Irons, 33 Mo. App. 659; Plint-Walling Mfg. Co. v. Ball,
43 Mo. App. 504.
Instructions not warranted 'by evidence.
One party cannot complain that instructions given at the request
of the other party were not warranted by the evidence, where in-
structions given at his own request present the same issue. Straat
V. Hayward, 37 Mo. App. 585.
Failure to define terms.
A party cannot assign as error the failure of the court to define
terms used In the instructions, where he uses the same terms with-
out explanation in his own requests for instructions. Herman v.
Owen, 42 Mo. App. 387.
Ignoring issues.
Plaintiff cannot complain that instructions given at the request
of defendant ignored the question of negligence, where none of the
Instructions asked and given at the request of plaintiff submitted
that question to the jury. Demetz v. Benton, 35 Mo. App. 559.
Quantum, meruit.
An instruction permitting a recovery on a quantum meruit when
plaintiff sued on an express contract, though erroneous, cannot be
complained of by defendant, where practically the same instruction
was given at his own request. O'Neal v. Knippa (Tex.) 19 S. W.
1020.
THegligence.
An instruction that, if defendant was negligent in any of the par-
(STl)
§ 381 INSTRUCTIONS TO JURIES. [Ch. 32
request. The same rule applies to instructions given by the
court of its own motion.-'^*'
i 381. Instructions given by consent.
If an instruction is given by consent, such consent makes
the instruction the law of the case, and, upon appoul, its cor-
rectness cannot be questioned.'^' So, where the judge in-
structed the jury that he had given them the law as under-
stood and assented to by the counsel, and this statement was
acquiesced in by both counsel, it must be regarded as a waiv-
er of all objections to the instruction.'*^ And where no ex-
ception 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 prin-
ciple of law or not.^*^ So, where the court said, in the pres-
ence of the parties, that, "if agreeable, he would instruct the
jury orally," and there was no objection, the parties are
deemed to have consented to the giving of oral instructions,
and cannot assign it as error.'** When a party waives ob-
jections to any request of the opposite party, which the court
thereupon gives to the jury, such party cannot afterwards
reserve an exception thereto without first obtaining leave of
court.**** But a party is not estopped from alleging error
ticulars charged in the declaration, plaintiff should recover, cannot
be complained of where defendant has submitted requests upon that
theory, which have been given. Needham v. King, 95 Mich. 303.
130 Hess v. Newcomer, 7 Md. 325; Silsby v. Michigan Car Co., 95
Mich. 204.
131 Baugher v. Wilkins, 16 Md. 35 ; Philadelphia, W. & B. R. Co. v.,
Harper, 29 Md. 330; Stratton v. Staples, 59 Me. 94; Emory v. Addis,
71 111. 273.
132 Stratton v. Staples, 59 Me. 94.
133 Emory v. Addis, 71 111. 273.
134 Downey v. Abel, 87 111. App. 530.
135 Oddie v. Mendenhall (Minn.) 86 N. W. 881.
(872)
Ch . 32] REVIEW ON APPEAL. § 382
in an instruction as to the construction of a written agree-
ment 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.-***
V. CONSTKUCTION OF INSTRUCTIONS.
§ 382. General rules.
The general effect of a charge, rather than casual expres-
sions in it, must govern its interpretation or construction.^*^
The charge to the jury should be judged by its general scope
and spirit.-'^* But "instructions must be considered with ref-
erence to the possibilities of their interpretation."^*' The
jury cannot assume a state of affairs not consistent with the
testimony, and where the jury are charged that, "in passing
upon or determining any question of fact that may be in-
volved in this case, you will be governed solely by the evi-
dence introduced. The law will not permit jurors, in the
trial of causes, to speculate or engage in mere conjectures,
or indulge in inferences not warranted by the evidence, or
to be governed by mere sentiment, sympathy, passion, or
prejudice, or to be influenced to any extent or in any manner
by the financial worth or poverty of either of the parties.
But whatever conclusions are reached must be based entirely
upon the evidence introduced in this case," — it cannot be ob-
jected to an instruction, in an action for personal injuries,
enumerating the elements of damage, that the words, "the loss
of his wages," are used without any qualifying clause, the
"6 Hofeman v. Bloomsbury & S. R. Co., 143 Pa. 503, 157 Pa. 174.
137 Kyle V. Southern Electric Light & Power Co., 174 Pa. 570, 34
Atl. 323.
>38 Paschall v. Williams, 11 N. C. 292. The effect of the instruc-
tions, when taken as a whole, must be considered. Wadhams & Co.
T. Inman, Poulsen & Co., 38 Or. 143.
139 State V. Chatham Nat Banlc, 10 Mo. App. 482.
(873)
§ 383 INSTRUCTIONS TO JURIES. [Ch. 32
evidence showing that the earning capacity of plaintiff is not
lost, but merely diminished."" An instruction applicable
to the theory upon which the case was tried is not erroneous,
though in the abstract it was not clear.^^ An instruction
will not receive thst construction which the professional mind
might assume the court intended, but it must be given that
meaning which the language used would reasonably convey
to the jury.^*^ Where a party, by his counsel, concedes that
an instruction given in his favor is erroneous, the court, on
appeal, will not look into it to determine whether the con-
cession is properly or improperly made.-'**
§ 383. Reasonable and liberal constmction.
"The practical administration of justice should not be de-
feated by a too rigid adherence to a close and technical analy-
sis of the instructions to the jury."'** The charge to the
jury "must receive a reasonable interpretation."^*^ Words
contained in an instruction should not be subjected to "a nice
criticism * * * when the meaning of the instruction
is plain and obvious, and cannot mislead the jury."'*® Hy-
percritical niceties should be disregarded.-'*'^ "The language
should receive a reasonable construction, in view of all the
"0 Southern Pac. Co. y. Hall, 41 C. C. A. 50, 100 Fed. 760; Gray
V. State (Fla.) 28 So. 53; Soutbern Ry. Co. v. Lynn, 128 Ala. 297.
1" Lingle v. Kitchen, 69 Ind. 349.
142 state V. Billings, 77 Iowa, 417.
143 Blackburn v. Morton, 18 Ark. 384.
144 People V. Bruggy, 93 Cal. 476.
i45Bliven v. New England Screw Co., 23 How. (U. S.) 420; First
Unitarian Soc. of Chicago v. Faulkner, 91 U. S. 415; South & North
Alabama R. Co. v. Jones, 56 Ala. 507.
146 Baltimore & P. R. Co. v. Mackey, 157 V. S. 72, citing Rogers
V. The Marshal, 1 Wall. (U. S.) 644, and Evanston v. Gunn, 99 U.
S. 660.
i47Paschall v. Williams, 11 N. C. 292; South & North Alabama R.
Co. v. Jones, 56 Ala. 507.
(874)
Ch. 32] REVIEW ON APPEAL. | 385
circumstances, and not a strained or forced one."*** It ia
not proper to 'seek after some far-fetcbed and unusual sig-
nification of the language used, and tase a reversal thereon.
The language should be given its usual and ordinary mean-
ing.i"
§ 384. Construction to support judgment.
If the language used is capable of different constructions,
that one will be adopted which will lead to an affirmance of
the judgment, unless it fairly appears the jury were, or at
least might have been, misled.*^" Where the charge was
proper in one sense, it will be presumed, on appeal, that the
judge charged in that sense.-'** Thus, where it does not
clearly appear to which of two matters the language of the
charge to the jury is applicable, the language will be referred
to that matter which would make the charge correct.* ^^ So,
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.*** The
construction least favorable to the party asking the charge
will be adopted by the supreme court.***
§ 385. Construction as a whole.
Instructions are to be considered together, to the end that
they may be properly understood ; and if, when so construed,
and as a whole, they fairly state the law applicable to the evi-
148 Davenport v. Cummlngs, 15 Iowa, 219.
i4» State V. Huxford, 47 Iowa, 16.
150 Caldwell v. New Jersey Steamboat Co., 47 N. T. 282 ; People
T. McCallam, 103 N. Y. 587; Looram v. Second Ave. R. Co., 11 N.
T. St. Rep. 652.
iBi Harding v. New York, L. B. & W. R. Co., 36 Hun (N. Y.) 72.
"2 State V. Gllreath, 16 S. C. 104.
IBS Rome R. Co. v. Sullivan, 14 Ga. 277.
iM Smith V. State, 88 Ala. 23, 7 So. 103.
' (875)
§ 385 INSTRUCTIONS TO JURIES. [Ch. 32
dence, there is no available error in giving tliem,^°' althougli
detached sentences, or separate charges, considered alone,
may be erroneous or misleading.^®* A subsequent instruc-
issHofflne v. Swings, 60 Neb. 729, 84 N. W. 93; Caldwell v. New
Jersey Steamboat Co., 47 N. Y. 282; People v. McCallam, 103 N. Y.
587; Webb v. Wight & Weslosky Co., 112 Ga. 432; Fessenden v. Doane,
188 111. 228, affirming 89 111. App. 229; Ballou t. Andrews Banking
Co., 128 Cal. 562; Richard v. State (Pla.) 29 So. 413; People v.
Lem Deo, 132 Cal. 199; Com. v. Warner, 13 Pa. Super. Ct. 461; State
V. Whorton (Mont.) 63 Pac. 627; Gray v. State (Fla.) 28 So. 53;
Howard v. .People, 185 111. 552; State v. Savage, 36 Or. 191; State
v. Lee, 58 S. C. 335, 36 S. E. 706; Spears v. State (Tex. Cr. App.)
56 S. W. 347; Chicago & W. I. R. Co. v. Doan, 93 111. App. 247; John-
son V. Johnson, 156 Ind. 592; Gill v. Staylor (Md.) 49 Atl. 650;
Southern Ry. Co. v. Lynn (Ala.) 29 So. 573; Decatur Car Wheel
& Mfg. Co. V. Mehaflfey (Ala.) 29 So. 646; Surber v. Mayfield, 156
Ind^ 375; Malott v. Crow, 90 111. App. 628; McNulta v. Jenkins, 91
111. App. 309; H. B. Claflin Co. v. Omerus, 15 Pa. Super. Ct. 464;
Kennard v. State (Fla.) 28 So. 858;- Longley v. Com. (Va.) 37 S. E.
339; Texas & P. Ry. Co. v. Wineland, 42 C. C. A. 588, 102 Fed. 673;
Johnston v. Hirschberg, 85 111. App. 47.
"The entire instructions upon the measure of damages must be
taken and read together as one charge to the jury on that question."
Malott v. Crow, 90 111. App. 628.
166 Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; People
V. McCallam, 103 N. Y. 587; Webb v. Wight & Weslosky Co., 112
Ga. 432; Wadhams & Co. v. Inman, Poulsen & Co., 38 Or. 143; Com.
V. Warner, 13 Pa. Super. Ct. 461; State v. Lee, 58 S. C. 335, 36 S.
E. 706; Spears v. State (Tex. Cr. App.) 56 S. W. 347; Chicago &
W. I. R. Co. V. Doan, 93 111. App. 247; Pittsburgh, C, C. & St. L. Ry.
Co. V. Noftsger, 26 Ind. App. 614; Noble v. Bessemer Steamship Co.
(Mich.) 86 N. W. 520; Cllsby v. Mobile & O. R. Co., 78 Miss. 937;
Price V. Coblitz, 21 Ohio Gir. Ct. R. 732, 12 Ohio Cir. Dec. 34; Hous-
ton & T. C. Ry. Co. V. Moss (Tex. Civ. App.) 63 S. W. 894; Southern
Ry. Co. V. Lynn (Ala.) 29 So. 573; Hearne v. De Young, 132 Cal. 357;
City Council of Augusta v. Tharpe (Ga.) 38 S. E. 389; City of Rock
Island V. Starkey, 189 111. 515;' Cleveland, C, C. & St. L. Ry. Co.
V. Keenan, 190 111. 217; Anderson v. Union Terminal R. Co., 161
Mo. 411; Citizens' St. Ry. Co. v. Merl, 26 Ind. App. 284; McCornick
V. Queen of Sheba Gold Min. & Mill. Co. (Utah) 63 Pac. 820; De St.
Aubin V. Marshall Field & Co., 27 Colo. 414; Farmers' & Traders'
Nat. Bank v. Woodell, 38 Or. 294; Ohllger v. City of Toledo, 20 Ohio
(876)
Ch. 32] REVIEW ON APPEAL. g 386
tion will not revoke a previous one by implication.*"^ 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 request-
ed instruction must control. ^^* The particular consideration
of errors cured by other instructions, or by a construction of
the charge as a whole, is reserved for consideration in a later
section, in connection with the subject of harmless and re-
versible error.'' ^^
VI. Harmless and Reversible Error.
§ 386. General rules.
It is a rule of almost universal application that a judg-
ment will not be reversed for errors which did not affect the
result prejudicially to the appellant.*^" The doctrine of er-
Gir. Ct. R. 142, 10 Ohio Cir. Dec. 762; Marcom v. Raleigh & A. A.
L. R. Co., 126' N. C. 200; Schondorf v. Griffith, 13 Pa. Super. Ct. 580;
Smitson v. Southern Pac. Co.,, 37 Or. 74; People v. Emerson, 130
Cal. 562; Sharer v. Dobbins, 195 Pa. 82; Welsh v. Com. (Ky.) 60
S. W. 185; State v. Miller, 159 Mo. 113; Benedict v. Everard, 73
Conn. 157; Maxon v. Clark, 24 Ind. App. 620; Hulett v. Missouri,
K. & T. Ry. Co., 80 Mo. App. 87; Fletcher v. South Carolina & G.
B. R. Co., 57 S. C. 206; MoGhee v. Wells, 57 S. C. 280; Lewis v.
Western Union Tel. Co., 57 S. C. 325. Cases might be multiplied
upon this proposition to an almost Indefinite extent, but it would
serve no useful purpose to do so, as the proposition has never been
denied. The cases cited above are late cases applying the rule. A
numerous collection of the older cases will be found in 2 Enc. PI.
& Pr. p. 578. See, also, post, §§ 386-391, "Harmless and Reversible
Error."
157 Adams v. Macfarlane, 65 Me. 143.
iBsGoetz v. Metropolitan St. Ry. Co., 54 App. Div. (N. Y.) 365.
159 See post, chapter 32, vi.
i«o Swinney v. State, 22 Ark. 215; Patterson v. Fowler, 22 Ark.
396; Brooks v. Perry, 23 Al-k. 32; Nance v. Metcalf, 19 Mo. App.
183; Gaty v. Sack, 19 Mo. App. 470; Mercer v. Hall, 2 Tex. 284;
Robinson v. Varnell, 16 Tex. 382; Salmon v. Olds, 9 Or. 488; Briscoe
V. Jones, 10 Or. 63; Strong v. Kamm, 13 Or. 172; Brown v. Forest,
1 Wash. T. 201; State v. Cazeau, 8 La. Ann. 114; State v. Brette,
(877)
§ 386 INSTRUCTIONS TO JURIES. [Ch. 32
ror without injury is applied to such cases, and, in the in-
terests of substantial justice, the judgment is affirmed. But,
as has been seen, there is some conflict in the cases as to
whether or not prejudice will be presumed from the mere
fact of an error, the weight of authority being that error is
prima facie prejudicial and ground for reversal unless it can
be seen from the record that it was in fact harmless.''*^ How-
ever this may be, it can be shown affirmatively, in many cases,
that the error did not affect the verdict adversely to the ap-
6 La. Ann. 653; Payne v. Grant, 81 Va. 164; Johnson v. Cox, 81 Ga.
25; Bassett v. Inman, 7 Colo. 270; Wilson v. State, 69 Ga. 226; Welch
V. Butler, 24 Ga. 445; Beavers v. Missouri Pac. R. Co., 47 Neb. 761;
State v. Price, 75 Iowa, 243; Sharon v. Minnock, 6 Nev. 377; Robin-
son V. Imperial Silver Min. Co., 5 Nev. 44; BianchI v. Maggini, 17
Nev. 322; Truckee Lodge, No. 14, I. O. O. F., v. Wood, 14 Nev. 293;
Brown v. LlUie, 6 Nev. 244; Richardson v. State, 55 Ind. 381; Harris
V. State, 30 Ind. 131; Stewart v. State, 111 Ind. 554, 560; Shryer v.
Morgan, 77 Ind. 479, 485; Mooney v. Kinsey, 90 Ind. 33, 35; Simpkins
V. Smith, 94 Ind. 470, 473; Jones v. Angell, 95 Ind. 376, 381; Louis-
ville, N. A. & C. Ry. Co. v. Porter, 97 Ind. 267. 269; Froun v. Davis,
97 Ind. 401, 403; Barnett v. State, 100 Ind. 171, 179; Davis v. Reamer,
105 Ind. 318, 323; Atkinson v. Dailey, 107 Ind. 117, 120; Audis v.
Personett, 108 Ind. 202, 207; Haxton v. McClaren, 132 Ind. 235, 247;
Hummel v. Tyner, 70 Ind. 84; Higbee v. Moore, 66 Ind. 263; Salinua
V. Wright, 11 Tex. 572; Holllngsworth v. Holshousen, 17 Tex. 41;
State V. Tull, 119 Mo. 421; Easley v. Valley Mut. Life Ass'n, 91 Va.
161; Crawford v. Armstrong, 58 Mo. App. 214; Duke of Newcastle
V. Broxtowe, 1 Nev. & M. 598, 4 Barn. & Adol. 273; Boren v. State,
32 Tex. Cr. App. 637, 25 S. W. 775; Loper v. Robinson, 54 Tex. 510.
In Georgia, under the act of 1853-54, a new trial must be granted
if an erroneous charge is made, although no harm may be done by
such error. Shadwick v. McDonald, 15 Ga. 392; Terry v. State, 17
Ga. 204. In Texas, in criminal cases, error in the instructions is
ground for reversal, regardless of the question 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 instructions only when the error was harmful, or there
is doubt as to whether or not injury was done.
i«i See ante, § 378, "Presumption of Prejudice."
(8Y8)
Ch, 32] REVIEW ON APPEAL. § 386
pellant,*'^ and, in such cases, the error is harmless, and not
ground for reversal.^®* So, also, in many cases, the error is
such that it has no tendency to mislead a jury of ordinary
capacity, and in such cases, also, the court may properly ap-
ply the doctrine of harmless error, and affirm the judgment.'®*
H2 See, for example, post, § 389, "Error in Appellant's Favor,"
and post, § 390, "Error Cured by Verdict."
i«3 Randolph v. Carlton, 8 Ala. 606; Smith v. Houston, 8 Ala. 736;
Shepherd v. Nabors, 6 Ala. 631; Porter v. Nash, 1 Ala. 452; Caruth-
ers V. Mardis' Adm'rs, 3 Ala. 599; Hill v. State, 43 Ala. 335; Taylor
V. Kelly, 31 Ala. 59; Sims v. Boynton, 32 Ala. 353; Clay v. Robin-
son, 7 W. Va. 348; Cricket v. State, 18 Ohio St. 9; Myers v. Bank
of Tennessee, 3 Head (Tenn.) 330; Douglas v. Neil, 7 Heisk. (Tenn.)
438; David v. Bell, Peck. (Tenn.) 135; Berry v. State, 31 Ohio St.
219; Josephine v. State, 10 George (Miss.) 613; Mannen v. Bailey,
51 Kan. 442; Redden v. Tefft, 48 Kan. 302; People v. Smith, 105
Cal. 676, 39 Pac. 38; Sterling Bridge Co. v. Baker, 75 111. 139; Hub-
ner v. Feige, 90 111. 208; Rice v. Brown, 77 111. 549; United States
Exp. Co. V. Backman, 28 Ohio St. 144, 146; Pjarrou v. State, 47 Neb.
294; Burbridge v. Kansas City Cable R. Co., 36 Mo. App. 669; Mus-
coe V. Com., 87 Va. 460; Hadden v. Larned, 87 Ga. 634; Keeler v.
Herr, 157 111. 57, 41 N. E. 750; Gray v. Troutman, 158 111. 171, 41
N. E. 780.
i«< Hollingsworth v. Holshousen, 17 Tex. 41; Fogal v. Page, 59
Hun, 625, 13 N. Y. Supp. 656; Gray v. Troutman, 158 111. 171; Knick-
erbocker Life Ins. Co. v. Trafz, 104 U. S. 197, 26 L. Ed. 708; Titley
V. Enterprise Stone Co., 127 111. 457, 20 N. E. 71; People v. Marks,
90 Mich. 555; Smith v. King, 62 Conn. 515; Robbins v. Roth, 95 111.
464; Texas Cent. Ry. Co. v. Rowland, 3 Tex. Civ. App. 158; Cross
V. Lake Shore & M. S. R. Co., 69 Mich. 363; Sheehan v. Dalrymple,
19 Mich. 239; City of Chicago v. Hesing, 83 111. 204; Taylor v. Chi-
cago, St. P. & K. C. Ry. Co., 76 Iowa, 753; Vanvalkenberg v. Van-
valkenberg, 90 Ind. 433; Armstrong v. Tait, 8 Ala. 635; City of
Indianapolis v. Scott, 72 Ind. 197; People v. Scott, 6 Mich. 287;
Continental Ins. Co. v. Horton, 28 Mich. 173; Lindsay v. City of
Des Moines, 74 Iowa, 111; Ross v. City of Davenport, 66 Iowa, 548;
Rand v. Jones, 4 Willson, Civ. Cas. Ct. App. (Tex.) § 204; Bowden
V. Bowden, 75 111. 143; Suttie v. Aloe, 39 Mo. App. 38; Wilson v.
Trafalgar & Brown Co. Gravel Road Co., 93 Ind. '287, 292; Louisville,
N. A. & C. Ry. Co. v. Shanks, 132 Ind. 395; Poland v. Miller, 95 Ind.
387, 390; Stone v. Kaufman, 25 Ark. 187; State v. Price, 75 Iowa,
(879)
§ 387 INSTRUCTIONS TO JURIES. [Ch. 32
Upon the other hand, where the error might have misled the
jury, and the court cannot see whether it did or not, the rule
as to the presumption of prejudice is controlling, but it would
seem that, in such case, the court could not properly pro-
nounce the error harmless, and affirm the judgment.^ ^^ Va-
rying expressions, applications, and illustrations of the fore-
going rules might be multiplied almost indefinitely. In the
following' section, the cases are collated in the form of si
digest note. ^®®
387. Same— Digest of decisions.
Error as to measure of damages Is harmless, where the amount
of the verdict shows that the jury did not follow the erroneous di-
rection. Keeler v. Herr, 157 111. 57.
Error in an instruction as to exemplary damages is harmless to
the plaintiff, where the plaintiff was not entitled to even actual
damages. Meyers v. Wright, 44 Iowa, 38. 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.
Error as to matters not contested is harmless, and not ground for
reversal. Rawson v. Ellsworth, 13 Wash. 667, 43 Pac. 934; Bokien
V. State Ins. Co. of Oregon, 14 Wash. 39; Gulf, C. & S. F. Ry. Co.
V. Reagan (Tex. Civ. App.) 34 S. W. 796; Consolidated Coal Co.
V. Maehl, 31 111. App. 252, affirmed 130 111. 551.
243; Preston v. Harvey, 2 Hen. & M. (Va.) 55; Brighthope Ry. Co.
V. Rogers, 76 Va. 443; Baltimore & O. R. Co. v. McKenzie, 81 Va.
71; Richmond & D. R. Co. v. Norment, 84 Va. 167; Com. v. Lucas,
84 Va. 303; Wager v. Barbour, 84 Va. 419; Muscoe v. Com., 87 Va.
460; Watson v. Com., 87 Va. 60S; Converse v. Meyer, 14 Neb. 190,
15 N. W. 340; McKay v. Leonard, 17 Iowa, 569; Clagett v. Conlee,
16 Iowa, 487; Ocheltree v. Carl, 23 Iowa, 394; Hunt v. Chicago &
N. W. R. Co., 26 Iowa, 363; How v. Reed, 20 Iowa, 591; Thompson
V. Blanchard, 2 Iowa, 44; Blackburn v. Powers, 40 Iowa, 681; State
V. Hart, 67 Iowa, 142.
166 Terry v. Buffington, 11 Ga. 337; DufCany v. Ferguson, 66 N.
Y. 482, reversing 5 Hun, 106.
166 See post, § 387.
(880)
Ch. 32] REVIEW ON APPEAL. § 38
Decision 'based on different grounds.
Error In an instruction is harmless, where the case is decided
upon a point or grounds wholly independent of that referred to in
the erroneous instruction. Comstock's Appeal, 55 Conn. 214. An
Instruction outside the evidence is not prejudicial to plaintiff, where
the jury find for defendant on another ground. Blatchford v. Boy-
den, 122 111. 657.
The modificaUon of an erroneous request is not reversible error
as' to the party making the request. Continental Ins. Co. v. Hor-
ton, 28 Mich. 173; Shaw v. Camp, 160 111. 425, 43 N. E. 608; Saw-
yer V. Lorillard, 48 Ala. 332. But compare Edgar v. State, 43 Ala.
45; Eiland v. Stats, 52 Ala. 322.
Immaterial and minor errors which manifestly had no influence
upon the decision will not authorize a reversal. Hollingsworth r.
Holshousen, 17 Tex. 41; Massachusetts Mut. Life Ins. Co. v. Rob-
inson, 98 111. 324; Smith v. King, 62 Conn. 515, 26 Atl. 1059; Strong
v. State, 95 Ga. 499; Stein v. Vannice, 44 Neb. 132; Kimble v. Seal,
92 Ind. 276, 284.
Substantial correctness is all that is required. Needham v. Peo-
ple, 98 111. 275; Massachusetts Mut. Life Ins. Co. v. Robinson, 98
111. 324; Oliver v. State, 39 Miss. 526; Montag v. Linn, 23 111. 551.
Mere verbal criticisms and inaccuracies of expression are not
ground for reversal unless it appears probable that the jury were
misled. Carpenter v. Eastern Transp. Co., 71 N. Y. 574; Pierce v.
Hasbrouck, 49 111. 23; Labar v. Crane, 56 Mich. 586; Chattanooga,
R. & C. R. Co. V. Palmer, 89 Ga. 161; Galveston, H. & S. A. Ry. Co.
v. Porfert, 72 Tex. 344; Forgey v. First Nat. Bank of Cambridge
City, 66 Ind. 123; Citizens' State Bank v. Council Bluffs Fuel Co.,
89 Iowa, 618; Welch v. Miller, 32 111. App. 110; O'Connor v. Lang-
don, 2 Idaho, 803; Harris v. Daugherty, 74 Tex. 1; Suttie v. Aloe,
39 Mo. App. 38;. Wilson v.' Trafalgar & Brown Co. Gravel Road Co.,
93 Ind. 287; Vanvalkenberg v. Vanvalkenberg, 90 Ind. 433, 436;
Pittsburgh, C. & St. L. Ry. Co. v. Sponier, 85 Ind. 165, 170; Cham-
bers v. Kyle, 87 Ind. 83, 84; Coppage v. Gregg, 1 Ind. App. 112;
Pittsburgh, C, C. & St. L. Ry. Co. v. Welch, 12 Ind. App. 433; Bur-
gess v. Territory (Mont.) 19 Pac. 558.
Inconsistency between instructions is not reversible error unless
actually or probably prejudicial. Overland Mail & Exp. Co. v. Car-
roll, 7 Colo. 43; Nuckolls 7. Gant, 12 Colo. 361; Robbins v. Roth. 95
111. 464; Bigelow v. Wygal, 52 Kan. 619. Where two paragraphs of
a charge are inconsistent, as applied to the 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
(881)
56— Ins. to Juries.
§387 INSTRUCTIONS TO JURIES. [Uh. 32
incorrect, and follow the correct instruction. Hillebrant v. Green,
93 Iowa, 661.
Error as to penalty of crime.
Error as to the time of imprisonment wliich< the jury may. inflict
Is cured, where the court reduces the verdict to the lowest. limit
under the statute. State v. Tull, 119 Mo. 421.
Misleading instructions.
Instructions having a tendency to mislead, although correct, con-
stitute reversible error. Pennsylvania Canal Co. v. Harris, 101 Pa.
93; Galveston Land & Imp. Co. v. Levy, 10 Tex. Civ. App. 104;
Skinner v. McAllister, 4 Cent. Rep. (Pa.) 750; State v. Cain, 20
W. Va. 679; White v. Thomas, 12 Ohio St. 312; Chicago, B. & Q. R.
Co. V. Anderson, 38 Neb. 112; Perot v. Cooper, 17 Colo. 80. Contra,
Floyd V. State, 82 . Ala. 16. Where an instruction states a. proposi-
tion 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
tendency can be obviated by asking for an explanatory charge. An-
niston City Land Co. v. Edmondson (Ala.) 30 So. 61. "Where .an
•Instruction is erroneous, and calculated to mislead the jury, .and
I the verdict would have been different had the instructions not been
I given, a new trial will be awarded." Blackburn v. Morton, .18 Ahk.
.384. A verdict will not be set aside because the Jurors, or. some
ot them, assert that they misunderstood the charge. -Tyler v. Ste-
vens, 4 N.'H..116; Polsom v., Brawn, 25 N. H. 115, 124;. Belknap v.
•Wendell, 36 N. H. 250. A/judgment will not be reversed .because
of an erroneous instruction, if. the proper result has been obtained,
and the finding of the jury shows that the party complaining of the
■instruction has not .been • harmed. Coppage v. firegg, 1 Ind..App.
112; Bigelow v. Wygal, 52 Kan. 619, 35 Pac, 200;. Kansas Cl,ty,.Ft.
S. & G. R. Co. V. Hay, 31 Kan. 177; Fogal v. Page, 59 Hun, 625, 13
N. Y. Supp. 656; Keegan v. Kinnare (111.) 14.N..E..14; Lemmon
V. Moore, 94Ind. 40, 43;. Pittsburgh, -C, C, & St. L. Ry. Co. v. .Welch,
12 Ind. App. 433; Williams v. John Davis -Co., 54 111. App. 198;
Liberty Ins.' Co. V. Bhrlich, 42 Neb. 553, 60 N. W. 940; Chicago
City Ry.Co. v. Hastings, 35.111. App. 434, affirmed in 26 N.,E. 594;
March v. Portsmouth-. & C. R. R., 19 N. H..372; Wendell v.. Moulton,
26 N. H. 41, 63; Hoitt v. Holcomb, 32 N. H. 186, 207;.Kuchenmeister
V. O'Connor, 11 Wkly. Law Bui. (Ohio) 120.
"Wrong reason for correct instruction.
A correct instruction is not rendered erroneous because an im-
(882)
Ch. ,32] REVIEW. ON ,APPEAL. § 387
proper reason is given for it. Mgir;ion.v.;Sta!te,;20-r^eb. 233; ,FprJbea
V. I'i'b.mas, ;22^.N.eb. ,541.
A.-7rtf)^ifica^j,on^ of an j,nstruGUpnr^)n.Qh.. Ao&s^fiot, cliange, JtSf/ne3,n-
ing Is^jatmost,. barpiless error. Gottsjein.v. Seattle ,iL,umber & pqip-
njercial Co., ,7 Wja,^. 424, 35 Pac. 133.
Meaningless instructions.
"A judgment will not be reversed simply because an instruction
given by, the trial court is meaningless, but , only when, it is, errone-
ous, and works injury to the substantial rights of the pafty,. com-
plaining." Hentig v. Kansas Loan & Trust Co., 28 Kan. 617; Kim-
ble V. Seal, 92 Ind. 276, 284; Staser v. Hogan,.120 Ind. 207, 225.
Instruction in dead langwage.
•The court will, not reverse for an error in a portion of the charge,
.deI|Yfred,in;ia dead language, jWhich there was no probability pf its
being understood by a country jury. Wenger v. Barn^hart, 55 Pa. 300.
Mere repetition pf a proposition is not reversible error unless
shown to be prejudicial. Dixon v., State,, 46 Neb. 298, 64 N. W. 961.
This rule 'has been applied to criminal prosecutions in which the
court has repeated instructions, cautioning the jury that, in, weigh-
ing the credibility of witnesses, they should consider the Interest
of the accused in the result of the prosecution.
J^isstatemeflt of testimony.
"A misstatement of . the language of a witness by the court in
its charge to the jury is no ground for reversal unless such mis-
statement is as to a material part, of his testimony, and probably
misleads the jury." , Bellew, v. Ahr.burg, 23,Ifa,n.,287.
Judgment rigJit on whole record.
Errer in giving or refusing instructions is harmless, and , not
ground fpr reversal, where, upon a whole record, the judginent is
r;ght. r»avi^s V. .lyiiller, 1 Call (^a.) 127; Perkins, v. Maus, 15, Colo.
262, 25, Pac. Ig8; Davis v. Liberty, & Camden Gravel, Road Co., 84
Ind. 36,,42;.^esjtei;n Union,Tel. Co. v. Reynqlds, 77 Va. 173; Moore
.V. City of Richmond, 85 Va. 538; Portage Co. Branqh Bank v. Lane,
8 Ohio St. 405; Brinsonv. Sniith, Ppck (Te;^n.) 194; , Gra,lsam,v.
Bradley, 5 Pupipll. (Tgnn.) 476; Gibbons v. Di,llingham, 10 ,-Ark.
9; ,Wqod v.. Ostram, 29 Ind. 177; .Heflin v. B^yis, 82 Jnd. ,388, ,392;
Mprris.v. Sfate, .94 Ind. 565, 569; Ne.w.v. Nqw,,,95 ind. £!66, 367;
Lew,v. Deiner, 111 Ind.. 46, ,47; .Rpberts v. .Nod,wi^t, 8,I^d. 339;
McCall V. Seevers, 5.1pd. 187; Andre v. j;p,hn,S9n, ^ 6 Blaokt (Ind.)
3:?5; Harris v. Dpe d. ;^arnett, .4 Blackf. (Ind.) ,359; ^Brooster v.
§ 387 INSTRUCTIONS TO JURIES. [Ch. 32
State, 15 Ind. 190; Conwell v. Emrle, 4 Ind. 209; Clifton v. Shan-
non, 4 Ind. 498; Watson v. Allen, 4 Ind. 537; HufE v. Earl, 3 Ind,
306; Mancliester v. Doddridge, 3 Ind. 360; Ellison v. Dove, 8 Blackf.
(Ind.) 571; Evans v. Merritt, 62 Ark. 228; Mode v. Beasley, 143
Ind. 306, 42 N. E. 727; Harman v. Kelley, 14 Ohio, 502; Wood v.
Wylds, 11 Ark. 754; Ingram v. Marshall, 23 Ark. 115; Jordan v.
James, 5 Ohio, 88; Guthrie v. Newill, 4 Kan. 188; Doyle v. Dobson,
74 Mich. 562; State v. Forrester, 63 Mo. App. 530; Edmondson v.
Maohell, 2 Term. R. 4. See, also, post, § 391, "Error Cured by
Verdict."
Failure to number instructions.
A statute requiring the court to number its instructions in con-
secutive paragraphs has been held to be directory, and, if no rights
of a party are sacrificed or prejudiced by a failure to comply with
the statute, the error, if error It be, will not cause a reversal. Miller
v. Preston, 4 Gild. (N. M.) 314.
Presumption as to capacity to commit crime.
In a prosecution of an infant in a jurisdiction in which the com-
mon-law rule as to responsibility of infants prevails, an instruction
that the prima facie presumption that an infant is not accountable
for his acts does not apply in the case of an infant more than
eleven years of age will not be assumed to be harmless, though
the accused committed the offense charged two months after he
became fourteen years of age. Allen v. United States, 150 U. S.
551, 14 Sup. Ct. 196.
Instructions not supported iy evidence.
A correct statement of law, though not applicable to the evidence,
and irrelevant to the case, is not ground for reversal unless it may
have misled the jury to the prejudice of the appellant. Evans v.
Howell, 84 N. C. 460; Carstens v. Stetson & Post Mill Co., 14 Wash.
643; Pope v. Pope, 95 Ga. 87; Hummel v. Tyner, 70 Ind. 84; Tum-
lin V. Parrott, 82 Ga. 732, 9 S. E. 718; Kansas City, Ft. S. & G. R.
Co. V. Hay, 31 Kan. 177; Foss-Schneider Brewing Co. v. McLaugh-
lin, 5 Ind. App. 415, 419; Brant v. Gallup, 111 Ind. 487; Evansville
& I. R. Co. V. Darting, 6 Ind. App. 375, 376; Parmlee v. Sloan, 37
Ind. 469; McGuire v. State (Tex. Cr. App.) 28 S. W. 345; Simonds
v. Clapp, 16 N. H. 222; Nutting v. Herbert, 37 N. H. 346, 354; Mc-
Call V. Seevers, 5 Ind. 187; Belden v. Gray, 5 Fla. 504; McNeill
V. Arnold, 22 Ark. 477; Milton v. Blackshear, 8 Fla. 161; Stockton
V. Stockton, 73 Ind. 510, 514; Hellems v. State, 22 Ark. 207; Schnei-
der V. Hosier, 21 Ohio St. 98; Sullivan v. Finn, 4 G. Greene (Iowa)
544; French v. Millard, 2 Ohio St. 44; Fort ScOtt, W. & W. R. Co.
Qh. 32] REVIEW ON APPEAL. § 387
V. Kanacker, 46 Kan. 511; Douglas v. Wolf, 6 Kan. 88; Dickson
V. Randal, 19 Kan. 214; Chapman v. Stewart, 63 111. 332; Mills v.
Ashe, 16 Tex. 295; Barker v. Blount, 63 Ga. 423; Cincinnati, N. 0.
& T. P. Ry. V. Rawson, 16 Wkly. Law Bui. (Ohio) 423; Satchell v.
Dorah, 4 Ohio St. 542; Wiles v. Trustees of Philippi Church, 63
Ind. 206; Parkhurst v. Masteller, 57 Iowa, 474; Kansas City, Ft.
S. & G. R. Co. V. Hay, 31 Kan. 177; Boltz v. Smith, 3 Ind. App. 43;
Pogue V. Joyner, 7 Ark. 463; Ohio & M. Ry. Co. v. Stein, 140 Ind.
61; Ames v. Quimby, 106 U. S. 342; State v. Keys, 53 Kan. 674;
State V. Donnelly, 130 Mo. 642; Miller v. State, 36 Tex. Cr. App. 47.
Error in abstract charge.
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 appellant injured. Steinwehr
V. State, 5 Sneed (Tenn.) 586; Wilson v. State, 3 Heisk. (Tenn.)
278; Hudson v. Bauer Grocery Co., 105 Ala. 200; Fitzgerald v. GofE,
99 Ind. 28; Blake v. Hamburg Bremen Fire Ins. Co., 67 Tex. 160;
Boyd v. State, 17 Ga. 194; Sheppard v. Peabody Ins. Co., 21 W. Va.
370; People v. Marble, 38 Mich. 117; Jones v. Thurmond's Heirs,
5 Tex. 318; Numan v. Kapp, 5 Bin. (Pa.) 73; Hardy v. De Leon,
5 Tex. 211; Rogers v. Hall, 4 Watts (Pa.) 359; State v. Turner,
35 La. Ann. 1103; Clarke v. Dutcher, 9 Cow. (N. Y.) 674; McClear-
land V. State, 24 Tex. App. 202; Jordan v. Lang, 22 S. C. 164; Smith
v. State, 34 Tex. Cr. App. 265; Hughes v. Parker, 1 Port. (Ala.)
139; Salmons v. Roundtree, 24 Ala. 458; Magee v. Billingsley, 3 Ala.
679; Johnson v. Boyles, 26 Ala. 578; Rolston v. Langdon, 26 Ala.
660. But see Burkham v. Daniel, 56 Ala. 604.
Charge on immaterial issues.
A charge upon an immaterial issue, and which could not have
affected the result, is not ground for reversal. Moore v. Moore,
73 Tex. 382; White v. Ross, 35 Fla. 377; Stirling v. Stirling, 64
Md. 138, 21 Atl. 273; Maitland v. Citizens' Nat. Bank, 40 Md. 540;
Kugler V. Wiseman, 20 Ohio, 361; McCoy v. State, 15 Ga. 205; John-
son V. State, 30 Ga. 426; Steamboat Albatross v. Wayne, 16 Ohio,
513.
Miscellaneous errors held harmless.
Alamo Fire Ins. Co. v. Schmitt, 10 Tex. Civ. App. 550; Greenwood
V. Davis, 106 Mich. 230; Walker v. Collins (C. C. A.) B9 Fed. 70;
Texas & P. Ry. Co. v. Reed (Tex. Civ. App.) 32 S. W. 118; Williams
V. Conger, 49 Tex. 582; Cortelyou v. McCarthy, 37 Neb. 742, 56 N.
W. 620; Rogers v. Rogers, 46 Ind. 1; North River Boom Co. v.
Smith, 15 Wash. 138; Jackson v. State, 91 Wis. 253, 64 N. W. 838;
(885),
§ 388 INSTRUCTIONS TO JURIES. [Gh. 32
Marsalis v. Patton, S3 Tex. 521; Evans v. Statej 9& Ga. 4B8; Aheals
V. Pexjple, 134- 111. 401; State v. Smith, 8 S. D.' f'i*!; Union P.' RyV Co.
V. Shelley, 49 Kan. 667; Diily v. Omaiia & St. L. Ry! Co., 55 Mb." App.
123; Austin Rapid Transit Ry. Co. v. Grothe, 88' Tex. 26'2; Fort'
Worth Pub. Co. v. Hitson, 80 Tex. 216; Saunders v. Payne, 36 N.
Y. St! Rep. 733; McCahan v. Wharton, iSi I*a. 4^4'; Wyaitt'v. Her-
ring; 90 Mich. 581; Chaddick v. Haley, 81 Texl 617; Graham" v.' State
(Tex. Cr. App.) 24 S. W. 645; Edelin v.' Sanders, 8 MS; ll8; Trahs-
atlantic Fire Ins. Co. v. Bamberger, 11 Ky.' Law Rep. lOl, 11 s! W.
595; Church v. Rowelli 49 Me. 367; State v. Mayberry, 48' Me. 2l'8;
Porterfield v. Com., 91 Va. 801.
Miscellaneous errors held ■prejudicial.
Brown v. Perez (Tex. Civ. A'pp.) 25 S. W. 980; Kendig v; Ove'r-
hulser, 58 Iowa,195; Northern Pac. H. Co. v. Cha'rless, 162' U. Si 359,
16 Sup. Ct. 848.
% 388. Error harmless in view of evidence.
In determining whether or not instructions ar6 erroneous^
andjjif erroneous, whether or not the error was prejudicial,
the court' itiay loot to the evidence brought up in the fee-
ord.^^'^ The correctness of ail instruction must he deter-
mined in connection with the facts of the case as presented
hj the evidence, and' it should be held correct if it would '
produce the proper result upou the fact's of thfe caSe, whether
technically or abstractly accurate or not.^*^ Thus, a refusal
18? Bradsltaw V. Mstyfleld, 18 Tex. 21; TeSras & P. Ry. Co. v. Neill
(T^ex: Civ. Apjf.); 30 S; W. 369.
les Thompson v. Thompson, 9 Ind. 323; Keyser v: Kansas City, St.
J. & C: B; r'. Co., 5G Iowa, 440; Kettry v. Thumma, 9 Ind. App.
4^8', Sot); Rosenthal; Meyer & C6: v. Mlddlebr'obk, 63 Tex. 333; State
V. Ellick, 60 N. C. 450; Upson v. Ralford, 29 Ala. 188; Diel v. Camp,
22 Ala. 249; Belote v. State, 36 Miss. 96; Maurer v. Miday, 25 Neb.
575; Lehman v. Warren, 53 Ala. 535; South & North Alabama R.
Co. V. Wood, 71 Ala. 215; Fulton Ins. Co. v. Goodman, 32 Ala. 108;
Miller v. Jones' Adm'r, 29 Ala. 174; Waters v. Spencer, 22 Ala. 460;
Klrk^nd v. Gates, 25 Ala. 465; Berry v. Hardman, 12 Ala. 604; Mc-
Bride v. Thompson, 8 Ala. 650; Eskridge v. ^tate, 25 Ala. 30; Noles
V. Stated 26 Ala. 31; Jones v. Davis, 2 Ala. 730; Lockwobd v. Nelson,
16 Alat. 294; Alexander v. Alexander, 71 Ala. 295; Palmore v. State,
(886)
Ch. 32] REVIEW ON APPEAL. , §388
to charge on the doctrine of reasonable doubt or error, in the
charge is not ground for reversal, where the state of the evi-
dence is such as to leave no reasonable doubt.^®' So, where
the evidence would not support a verdict and judgment for
the appellant,, error in the instructions is immaterial as to
him,and not ground for reversal.^'"' Error in giving, or re-
29 Ark. 248; Aliams V; State, 22 Ga. 417; Sword v. Keith, 31 Mich.
247; People y. Kelly, 28 Cal. 423; Worden v. Salter, 90 11.1. 160;
People V. Scott, 6 Mich. 2S7; Botsford v. Kieinhans, 29 Mich. 332;
City of Wyandotte v. White, 13 Kan. 191; State v. Johnson, 8 Iowa,
525; COhron v; State, 20, Ga. 752; Moore v. Missouri Pac. Ry. Co.,
73 Mb. 438-; Brumagim v. Bradshaw, 39 Gal., 24; State v. Rhodes,
44 S. C. 325; Russell v. Phelps. 42 Mich. 378; Angell v. Rosenburg,,
12 Mich. a41; Brownlee v. Martin, 21 S. G. 400; Rogers v. Wallace,
10 Or. 387; Williams- v. Barksdale, 58- Ala. 288; Stillwell v. Gray,
17 ATk-. 473; Souvals v. Leavitt, 50 Mich. 108; Peck- v. Garmichael,
9 Yerg: (Tenn.) 325; Skates v. State, 64 Miss. 644; Sykes v. People,
127 111. 117; Amos v. Buck, 75 Iowa, 651; Texas & P. Ry. Go. v.,
Wright, 62 Tex. 515; Bonner v. Moore, 3 Tex. Civ. App. 416; Price
Vi Jbhnson County, 15- Mo; 433; Hall v: State, 8 Ind. 439; Eitzpatrick
V. State, 37< Ark. 238-; Delaware River Steamboat Co, v. Burlington.
&B; Steam Ferry Co., 81 Pa. 103> State v. Kinkead, 57 Conn. 181;
Holterhoff v; Mutual Ben. Life Ins; Co., 3 Am. La.w Rec. (Ohio)
272? State Vi Robbins, 48 N. G. 249; Gasco. Bank v. Keene, 53 Me.
103; Blake v. Irish, 21 Me. 450; Merrill v. Inhabitants of Hamp-
dfen, 26 Me. 234.; Boobier v. Boobier, 39 Me. 406; Chicago West Div.
Ry. Co. V. MillSy 105 111. 63; Collins v. Richmond Stove Co., 63 Conn.
360; State v. Tilly, 25' N. G. 424.
16B McGuire v. State, 37 Miss. 369; Edelhoff v. State, 5 Wyo. 19.
iTO Carey-Lombard Lumber Go. v. Hunt, 54 III. App. 314,; Frank
V. Williams, 36 Fla. 136, 18 So. 351; Mercer Academy v. Rusk, 8
W: Va; 373; Blackman v. Houssels (Tex. Civ. App.) 35 S. W. 511;
Fairfield v. Barrette, 73 Wis. 463, 41 N. W. 624; Malson v. Fry, 1
Watts (Pa: ) 433; Jones v. Cherokee Iron Co., 14 Lea (Tenn.) 157;
Neddy V: State's Lessee, 8 Yerg. (Tenn.) 249; Wintermute v. Tor-
rent, 88- Mich. 555; Worth v. McConnell, 42 Mich. 473; Williams v.
City of Grand Rapids, 59 Mich. 51; Louden v. East Saginaw. 41
Mich. 18; McDonough v. Sutton, 35 Mich. 1; Houghton Go. Sup'rs
v. Rees, 34' Mich- 481; Barker v. Fields, 48 Mich. 251; Churchill v.
Grcbewig, 81 Iowa, 449; Johnson v. Illinois Cent. R. Co., 61 111. App.
622; Greer v. Lafayette Co. Bank, 128 Mo. 559; Dwelling House Ins'.
(887)
§ 3S8 INSTRUCTIONS TO JURIES. [Ch. 32
fusing instructions is not ground for reversal, where, under
the evidence, the result could not have heen different had
such error not heen committed.'^' A misstatement of the
Co. V. Dowdall, 55 III. App. 622; Houser v. LIghtner, 42 Leg. Int.
(Pa.) 289; Texas & P. Ry. Co. v. Nolan, 11 C. C. A. 202, 62 Fed. 552;
Turner v. Ft. Worth & D. C. Ry. Co. (Tex. Civ. App.) 30 S. W. 253;
Eister v. Paul, 54 Pa. 196; Rose v. Bradley, 91 Wis. 619, 65 N. W.
509: Strawbridge v. Cartledge, 7 Watts & S. (Pa.) 394; Girard Fire
& Marine Ins. Co. v. Stephenson, 37 Pa. 293; Mercer Academy v.
Rusk, 8 W. Va. 373; Mehurin v. Stone, 37 Ohio St. 49; Harrison v.
Morton, 2 Swan (Tenn.) 461; Hatt v. Evening News Ass'n, 94 Mich.
114, 53 N. W. 952; Clymer v. Cameron, 55 Miss. 593, 597; Cowen
V. Eartherly Hardware Co., 95 Ala. 324; Collier v. Jenks, 19 R. I.
493; State v. Cunningham, 130 Mo. 507, 32 S. W. 970; Simmon v.
Larkin, 82 Ind. 385, 387; Musselman v. Wise, 84 Ind. 248, 252; New-
comer V. Hutchings, 96 Ind. 119, 123; Standard Oil Co. v. Bretz, 98
Ind. 231, 236; Wolfe v. Pugh, 101 Ind. 293, 309; Winchester Wagon
Works & Mfg. Co. v. Carman, 109 Ind. 31, 35; State v. Caldwell, 115
Ind. 6, 14; Swaim v. Swaim, 134 Ind. 596, 599. See, also, post, § 390,
"Error Cured by Verdict."
171 Cox v. State, 41 Tex. 1; Miller v. State, 3 Wyo. 657; Board" of
Sup'rs of Logan Co. v. People, 17 111. App. 49; O'Hallcran v. Kings-
ton, 16 111. App. 659; Carter v. Fames, 44 Tex. 544; Chicago & E.
I. R. Co. V. Kneirim, 152 111. 458, 39 N. E. 324; Cusick v. Campbell,
68 111. 508; Earl's Lessee v. Shoulder, 6 Ohio, 409; Clark v. Moore,
3 Mich. 55; Cummlngs v. Stone, 13 Mich. 70; Sinclair v. Murphy,
14 Mich. 392; Sheehaii v. Dalrymple, 19 Mich. 239; Seymour v. De-
troit Copper & Brass Rolling Mills, 56 Mich. 117; Johnston v.
Davis, 60 Mich. 56; Schisler v. Null, 91 Mich. 321, 51 N. W.
900; Town of West Covington v. Schultz, 16 Ky. Law Rep. 831,
30 S. W. 410; Jachary v. Pace, 9 Ark. 212; Murphy v. Hager-
man, Wright (Ohio) 293; Courcier v. Graham, 1 Ohio, 330, 349;
Reed v. McGrew, 5 Ohio, 375, 385; Hughes v. Wheeler, 76 Cal. 230;
Farwell v. Salpaugh, 32 Iowa, 582; Chase v. Washburn, 1 Ohio St. 244;
Bernard v. Richmond, F. & P. R. Co., 85 Va. 792; Snouffer's Adm'r
V. Hansbrough, 79 Va. 166; Hussey v. Moser, 70 Tex. 42; Dawson v.
Sparks, 1 Posey, Unrep. Cas. (Tex.) 735; Beaty v. Baltimore & 0.
R. Co., 6 W. Va. 388; Colvin v. Menefee, 11 Grat. (Va.) 87; First
Nat. Bank v. Breese, 39 Iowa, 640; Hayden v. Souger, 56 Ind. 42;
Stipp V. Spring Mill & Williams Creek Gravel R. Co., 54 Ind. 16;
Morford v. Woodworth, 7 Ind. 83; Bullock v. Smith, 72 Tex. 545f 10
S. W. 687; McCord v. Blackwell, 31 S. C. 125; Dehority v. Paxson,
(888)
Ch. 32] REVIEW ON APPEAL. § 388
evidence is harmless error, where the legal effect of the evi-
dence is the same, whatever view of it may be taken." ^ The
assumption of facts conclusively proven or admitted, or a
failure to require the jury to find such facts, is not reversible
error.' ^* 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 evi-
dence.'^* But where an erroneous charge may have influ-
97 Ind. 253, 255; Thurston v. Lloyd, 4 Md. 283; Jones v. State, 78
Ind. 217, 219; State v. Cunningham, 130 Mo. 507, 32 S. W. 970; Mon-
roe V. City of Lawrence, 44 Kan. 607, 24 Pac. 1113; People v. Riley,
75 Cal. 98; Lang v. Dougherty. 74 Tex. 226; Tubbs v. Dwelling
House Ins. Co., 84 Mich. 646, 48 N. W. 296; Com. v. Bishop, 165
Mass. 148. 42 N. E. 560; Udderzook v. Harris, 140 Pa. 236, 21 Atl.
395; State v. Donnelly, 130 Mo. 642, 32 S. W. 1124; Boyle v. Hazle-
ton. 8 Kulp (Pa.) 239; Cartier v. Douville, 98 Mich. 22, 56 N. W.
1045; Sellers v. State. 99 Ga. 212; West v. State (Tex. Cr. App.)
33 S. W. 227; Harris v. State, 37 Tex. Cr. App. 441; Trexler v.
Greenwich Tp.. 168 Pa. 214, 31 Atl. 1090.
i'2 Knott V. Dubuque & S. C. Ry. Co., 84 Iowa, 462; West Chicago
St R Co V. Martin, 154 111. 523, 39 N. E. 140; Kaufman v. Schoeffel,
46 Hun (N. Y.) 571.
":< Corcoran v. City of Detroit, 95 Mich. 84, 54 N. W. 692; Indian-
apolis & St. L. R. Co. V. Stout, 53 Ind. 143; Drum v. Stevens, 94 Ind.
181. 184; Tomlinson v. BrileSi 101 Ind. 538; Hefling v. Van Zandt,
lfi2 111. 162, 44 N. B. 424; St. Louis, A. & T. H. R. Co. v. Holman,
1D5 III. 21, 39 N. E. 573.
174 Joliet Steel Co. v. Shields, 146 HI. 603, 34 N. E. 1108; Gulf, C.
& S. F. Ry. Co. V. Higby (Tex. Civ. App.) 26 S. W. 737; Pullman
Palace Car Co. v. Smith, 79 Tex. 468; Weiden v. Brush Electric Light
Co., 73 Mich. 268, 41 N. W. 269; Atchison, T. & S. F. R. Co. v. Love,
57 Kan. 36; City of Clay Centre v. Jevons, 2 Kan. App. 568, 44 Pac.
745; Goodwin v. Kansas City, Ft. S. & M. R. Co., 53 Mo. App. 9;
Lindsay v. Kansas City, Ft, S. & M. R. Co., 53 Mo. App. 11; Brent-
ner v. Chicago, M. & St. P. Ry. Co., 68 Iowa, 530; Hilliard v. John-
son (Tex. Civ. App.) 32 S. W. 914. See, also, Louisville, N. A. &
C. Ry. Co. V. Wright, 115 lAd. 378. An improper instruction as to
the degree of care to be exercised by a person to avoid injury is
harmless error, where the evidence shows no contributory negli-
(889)
§-389 INSTRUCTIONS TO JURIES. [Ch. 32
enced the verdict, tHe jud^ent must be reversed; although
the evidence may be sufBcifentto support the verdict, or may
even preponderate in its fa,vor.^^^ So, where an instruction,
is predicated' upon a case which the evidence tends to prove,,
and is correct, its refusal is groundi for reversal, although a
verdict' for the other party may be sustained by the' evi-
dence.-' ''"
§ 389; Error in appellant's favor.
It is elementary law that a party cannot complain of an
instruction, although it may be erroneous, if it is more favor-
able to him than the law and the evidence warrants.^^^ If
gence. Gulf, G. & Sj f; Ry. Co. v. Hlgby (Tex. Civ. App.) 26 S.
W.' 737.' An error in the charge upon contributory negligence by
the plaintiff is not material when there was no testimony to show
contributory negligence, and no injury, resulted. Pullman Palace
Car Co. V. Sinith, 79 Tex; 4B8; Weiden v; Brush Electric Iiight Co.,
73 Mich. 268; Louisville, N. A. & C. Ry. CO. v. Wright, 115 Ind. 378;
Atchison, T. & S. F. R. Co. v. Love, 57 Kan. 36; City of Clay Centre
V. Jevons, 2 Kan. App. 568; Error in defining "fellow servants" is
inimaterlalj where the employe in question was not a fellow servant.
Joliet Steel Co. v. Shields, 146 111. 603. See, also, Austin Rapid
Transit Co. v. Orothe, 88 Tex. 262.
175 Dwyer V. Continental Ins. Co., 57 Tex. 181; Franklin v. Smith,
1 Posey, Unrep. Cas. (Tex.) 229; Willis v. Kirbie, 1 Posey, Unrep.
Cas. (Tex.) 304; State v. Empey, 79 Iowa,. 460; Peoplfe v.. Van Zile,
143 N. Y. 368, 38 N. E. 380; What Cheer Coal Co. v-. Jbhnsonj 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.
178 Baltimore & 0. R. Co. v. Skeels, 3 W. Va. 556.
i'7 Alabama: Wyatt's Aditfr v. Steelfe; 26 Ala; 640; Courtland t.
Tarlton, 8 Ala. 532; Stanley v. Bank of Mobile, 23 Ala; 652; Millard's
Adm'rs v. Hall, 24 Ala. 209; Taylor v. Kelly, 31 Ala. 59; Montgom-
ery's Ex'rs V. Kirksey, 26 Ala. 172; Wharton v. Littlefiield; 30 Ala;
245; Governor v. Campbell; 17 Ala. 566; Kirkley v. Segar, 20 Ala.
226; Martin v. Nail, 22 Ala. 611); McGon^gal v: Walker, 23 Ala; 361;
Salmons v. Roundtree, 24 Ala. 458; Katnsas City, M: & B. R. Co; v.
Crocker, 95 Ala. 412.
(890)
Ch'; 32 ] ■ REVIEW- ON • APPEAL. § 339 >
the'cbiJrt, in itsihstr'uetioii, assiiiiles'a ffeCt' to exist that is in
f a:v'or' of' the party- eomp'laifling,^''*o'r instructs outside of the
California: McNamara v. MacDonough, 102 Cal. 575; McKeever
V. Market St. R; Co., 99 Cal. 2S4; People v. Ste^rnberg, 111 Cal. 3.
Colorado: De St. Aubin v. Field (Colo.) 62 Pac. 199J Patterson
V. Hitchcock, 3 Colo. 533; Good' v. Martin', 2 Colo. 218; teitensdorffer
V. Kiiig,' 7 Col<). i'Se; Smith v. Ramer, 6 Colo. App. 177.
Connecticut: Daggett v. Whiting; 35' Cbhn; 37'2.
E'lorida:: Marshall v. Staite; 3& Fla; 462.
Georgia:: McTS^er" v. State, 91 Ga: 254; Pa'rtee v. Georgia' R. Co.,
72 Ga. 349; Atkins v. Paul, 67 Ga. 97; McCcJy v. State,- 15 Ga. 205.
Illinois: Morton' V. Gateley, 1 Scain. 211; Wabash, St. L. & P.' Hy.
Co. V. Shacklett, 10 111. App., 404.
Indiana: Bissot v. State, 53 ihd. 4b8; Bronnenberg v. doburn,
110 Ind. 169, 1'72 ; Baltimore & 0. R. Co. v. Countryman, 16 Ind. App.
139; Ferguson v. Hosier, 58 liid. 438; Cline v. Lindsey, 110 Ind. 337,
342; liddingfleld \. State, l5' Ind. App. 312; Barnett v. State, 100
Ind. 171.
Kansas: State v. Dickson, 6 Kan. 309; State v. Potter, 15 Kan.
302; Kansas City, Ft. S'. & G. Ry. Co. v. Lane, 33 Kan. 702; Smith v.
Bro-wn, 8 Kan. 608.
Maine: Philbrook v. Burgess, 52 Me. 271; Lime Rock Bank v.
He-vretti 52 Me. 531; Cunningham v. Horton, 57 Me. 420; Rice v.
Wallace, 30 Me. 252; Dunn v. Moody^ 41 Me. 239; Staples v. Welling-
ton, 58 Me. 453.
Mainland-: Benson v. At-wood, 13 Md. 20; Planters' Bank v. Bank
of Alexandria, 10 Gill & J. 346; Mayor & City Council of Baltimore
V: Normauj 4 Md. 352^ Keener v. Harrodj 2 Md; 63; Green-way- v.
Turner, 4 Md. 296; Inloes v. A-merican Exch. Bank, 11 Md. 173.
Massachusetts: Com. v. Houle, 147 Mass. 380.
Michigan: IJang-worthy v. Grgen Tp., 95 Mich. 93; Bull- v: Brbck-
-way, 48 Mich. 523; Comstock v. Smith, 20 Mich. 338; Brlgham v.
Giirriey, 1 Mich. 349 ; Towle v. Ionia, Eaton & Barry Pariners' Mut.
Pii-e Ins. Co., 91 Mich. 219. ■
.Mississippi: Darcy'v. Spivey, 57 Miss; 527^
Missouri: Houx v. Batteen, 68 Mo. 84; Mangold v. St. Louis, I. M.
& S. R. Co., 24 Mo. App. 52; Vail v. Kansas City, C. & S. Ry. Co.,
28 Mo. App. 372; State v. Ste-wart, 90 Mo. 507; Ball v. City of Inde-
pendence, 41 Mo. App. 469; Harrington v. City of Sedalia, 98 Mb.
583'; State v. Berkley, 109 Mo. 665; State v. Buchler, 103 MO. 203;
State V. O'Gorman, 68 Mo. 179.
(891)
§ 389 INSTRUCTIONS TO JURIES. , [Qh. 32
issues, but in favor of the party complaining,^'^* or requires
the adverse party to prove more than he ought to be required
to prove in order to make out his case^*" or defense/®^ or
Nebraska: City of Lincoln v. Gillilan, 18 Neb. 114; McCary v.
Stull, 44 Neb. 175.
Nevada: State v. Little, 6 Nev. 281.
New Hampshire: Marcb v. Portsmouth Concord R. Co., 19 N. H.
372; Fowler v. Tuttle, 24 N. H. 9.
North Carolina: State v. Alston, 113 N. C. 666; Ray v. Lipscomb,
48 N. C. 185; Cowles v. Hall, 90 N. C. 330; Reynolds v. Magness'
Ex'rs, 24 N. C. 26; Lutz v. Yount, 61 N. C. 367.
Ohio: McClintock v. Chamberlin, Wright, 547.
Oregon: Moorhouse v. Donaca, 14 Or. 430.
Pennsylvania: Mcllvaine v. Mcllvaine, 6 Serg. & R. 559; Collins
V. Rush, 7 Serg. & R. 147; Brown v. Caldwell, 10 Serg. & R. 114.
South Carolina: Oliver v. Sale, 17 S. C. 587.
Tennessee: Nashville & C. R. Co. v. Smith, 6 Heisk. 174; Mc-
Nairy v. Thompson, 1 Sneed, 141.
Texas: Gulf, C. & S. P. Ry. Co. v. Duvall, 12 Tex. Civ. App. 348;
Davis V. State, 6 Tex. App. 133; Loggins v. State, 32 Tex. Cr. App.
364; Powell v. State, 5 Tex. App. 234; Templeton v. State, 5 Tex.
App. 398; Mercer v. Hall, 2 Tex. 284; Warren v. Smith, 24 Tex. 484;
International Building & Loan Ass'n v. Fortassain (Tex. Civ. App.)
23 S. W. 496; Wright v. State, 41 Tex. 246; Barbee v. Hail, 31 Tex,
161; Cocker v. State, 31 Tex. 498.
Virginia: Proctor v. Spratley, 78 Va. 254.
178 Ferguson v. Hosier, 58 Ind. 438; Green way 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.
179 Moorhouse v. Donaca, 14 Or. 430.
isoHoux V. Batteen, 68 Mo. 84; Warren v. Smith, 24 Tex. 484;
Baltimore & 0. R. Co. v. Countryman, 16 Ind. App. 139; Gulf, C. &
S. F. Ry. Co. V. Duvall, 12 Tex. Civ. App. 348; McClary v. Stull, 44
Neb. 175. Where the defense of contributory negligence Is not pre-
sented by the pleadings, no injury can result to defendant by sub-
mitting to the jury the question whether plaintiff was guilty of neg-
ligence, as he gets the benefit of a defense which has not been set
up. Kansas City, M. & B. R. Co. v. Crocker, 95 Ala. 412.
181 Daggett V. Whiting, 35 Conn. 372; Harrington v. City of Se-
dalia, 98 Mo. 583.
(892)
Ch. 32] REVIEW ON APPEAL. § 398
improperly submits a question of law to the jury, -which
should have been decided against the party complaining/*^
or permits a conviction of a lesser offense than the evidence
•warrants/ ^^ or eliminates from the case a paragraph of the
complaint, defendant appealing,-'®* or expresses the opinion
that the accused is not guilty of the crime charged,^*^ the er-
ror is' not such as will warrant a reversal. So, a refusal to
charge which operates to the benefit of the party complaining
is not ground for reversal.-'** Where a plaintiff proposes cor-
i82Courtland v. Tarlton, 8 Ala. 532; Stanley v. Bank of Mobile,
23 Ala. 652; Millard's Adm'rs v. Hall, 24 Ala. 209; Taylor v. Kelly,
31 Ala. 59; Towle v. Ionia, Eaton & Barry Farmers' Mut. Fire Ins.
Co., 91 Mich. 219. "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 question,
thereby impliedly admitting their right to revise its decision, the
refusal of the charge gives the plaintiff an additional chance for a
verdict, and is therefore no cause of reversal." Wyatt's Adm'r v.
Steele, 26 Ala. 640.
i83Po-well V. State. 5 Tex. App. 234; Templeton v. State, 5 Tex.
App. 398; McTyier v. State, 91 Ga. 254; State v. Alston, 113 N. C.
666. See State v. Berkley, 109 Mo. 665. If the instructions com-
plained of relate to a degree of crime inferior to the offense charged
in the indictment 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. Dickson, 6 Kan. 209;
State V. Potter, 15 Kan. 302; State v. Buchler, 103 Mo. 203. A charge
on the lesser offense of fornication is no ground for reversing a con-
viction of seduction. McTyier v. State, 91 Ga. 254,
184 Bronnenburg v. Coburn, 110 Ind. 169.
185 state V. Little, 6 Nev. 281.
186 -werkheiser v. Werkheiser, 6 Watts & S. (Pa.) 184; Deal v.
Bogue, 20 Pa. 228; State v. Parker, 13 Lea (Tenn.) 221; Missouri,
K. & T. Ry. Co. V. Cook, 12 Tex. Civ. App. 203; Fort Worth & D. C.
Ry. Co. V. Mackney, 88 Tex. 410; State v. Mitchell, 98 Mo. 657; Sten-
nett V. Bradley, 70 Wis. 278. As, for instance, where an instruction
given by the court is more favorable to the party complaining than
the one refused. State v. Mitchell, 98 Mo. 657; Fort Worth & D. C.
Ry. Co. V. Mackney, 83 Tex. 410. Thus, a refusal to instruct that
plaintiff must establish his case by a preponderance of the evidence
(893)
§.390 INSiTEUGTIO|M,S TO, JUJlfES. lQh.3>2
■rect rnstnietions as-tO'Certainde'feiises,, -asserted by tke .defend-
ant, but the court; says tbey are uQt in the case, and refuses to
give them, plaintiff is benefited, rather; than harmed.^^'dt can-
not avail a. defendant in a, criminal case that the court, erred
in -alloiwij:^, the .prosecuting,, attorney to withdrjaw a, charge
after the Qourt; has determined, tO; give it,. and has so ipdorsed
on the request,^** if the instruction is as favorableto.thepros-
eTOtion.as theilaw admits of its; being, and is correct, in .every
respect.^®® The ,modificatiQn of a requested instruction is
harmless error, where, as modified, it requires the other party,
in order to sustain his case, to prove more than the instruc-
tion, as offered, required.^** But error in giving, confusing
and misleading' instructions' is not cured hj the fact that their
general tenor, is undulyf avorable to the appellant.^*"
§ 390. Error cured by verdict.
(If .a verdict be. conformable: to the law and the evidence,
it will not be set aside merely because the court -refused to
give instructions which might properly .have beeu.giveh.*'^
The refusal of proper , instructions is -harmjess error , where
the verdict must necessarily^ have been the same, whether the
anstr.uctions asked were given or not,^®^ and where any other
Is harmless to defendant, where the court instructs that plaintiff
^ust eatahlish his case by a "fair",prepondera,nce. of the evidence.
De St. Aubin v. Marshall Field ^& Co.,..27 Colo. 414.
187 Stennett v. Bradley, 70 "Wis. 278.
188 Bonner v. State, 107 Ala. 97.
189 State. V. P'Gorm^n, 68 Mo. 179.
190 Chicago, B.„& Q.,R. Co., v. Anderson, SSJiIeb. 112.
191 Breckenridge V. Andejcson, 3,J. J..Mars.h. (.JCy.) 717; Tl^qmas v.
Tanner, 6 T. B. Mon. (Ky.) 61; Randall v. J^arramore, IFla. 409;
Pritchard v. Myers, 11 Smedes & M. (Miss.) ^42. A failure to con-
strue the contract in suit is harmless where the jury properly con-
strue it. Galveston, H, & S. A. Ry. Co. v. Johnson,,74 Tex. 256.
192 May V. Gamble, 14 Pla. 467; ^Robinsqn v. Hyer, 35 Pla. 544;
Squire Dingee Co. v. McDonald, 61 111. App. 607; Avery v. Moore,
(894)
Ch. '32] REVIEW ON APPEAL. § SM
verdict' woiild- properly havelbeen set aside |^^* where the i jury
'find that the facts on which the instruction was based did
not exist ;^®* or where the jury find as asked by the instruc-
tion.'*"
133 111. 74; Mussejman v. Pratt, 44 Ind. 126;. Rice v. Rice, 6 Ind. 100;
Cedar Falls & M. R. Co. v. Rich, 33 Iowa, .113; Olson v. Nea], 63
Iowa. 214; 'Wiggiiis v. McGimpsey, 13 , Smedes . & M. (JVUss.) 532;
Sullivan v. Jefferson Ave. Ry. Co., 133 Mo. 1; Ryan v. State Bank,
10 Neb. 524; Emerson, Talcott & Co. v. -Skldmore,"? Tex. Civ. App;
641; 'Douglass v. McAllister, SCranch (U. S.) 298; Pence v. Lang-
don, 99'U.'S. 578. -Where defendant is found guilty only of fornica-
tion, a refusal to give a correct charge as to rape is harmless error.
Jackson v. State, 91 Wis. 253. So, refusal to define murder is harm-
less Tvhen- the defendant is convicted only of manslaughter. Par-
' ker v; State, 55 Miss. 414.
183 Cedar Palls & M. R. Co. v. Rich, 33 Iowa, 113.
i9*Baker v. State,'58 Ark. 513; State v. Parish, 83 Ind. 223, 225;
"Mason T.'Sieglitz,' 22 -Colo. 320; Kimble v. Seal, 92 Ind.' 276, 285;
National Llfe.-Maturity Ins. Co. v. Whltacre,15 Ind.' App. 506; Chi-
cago & E. I. R. Co. V. Hines, 33 III. App. 271, affirmed 132 111. 161;
Martin v. Town of Algona.^O'Iowa, 390; Seekel v. Norman, 78 Iowa,
254; Clinton Nat. Bank v. Graves, 48 Iowa, 228; Hall v. Ballou, 58
Iowa, 585; Branner v. Stormont, 9'Kan. 51; Perkins v. Hitchcock,
49'Me.-468;'Barrett v. City ofBangor, 70 Me. 335; Walker v. Brown,
66 Tex. 556; Anderson v. Thunder Bay River' Boom Co., 57 Mich.
'216; Callaway v. Burr, 32 Mich. '332; Tainter v. Lombard, 54 Me.
654; Good v. Knox, 64'Vt 97; Glass v. Ranwolf , ■ 172 Pa. 655, 37
Wkly. Notes Cas. 428.
Illustrations of rule — Measure.of damages.
The refusal of a request for an instruction on exernplary dam-
ages furnishes no ground of complaint, ^vhere , the jury find only
actual damages. Texas & P. Ry. Co. v. .Watts (Tex.) 18 S. W. 312.
So, where the verdict shows that the jury were not brought to a
consideration of damages, the plaintiff is not prejudiced by the re-
fusal to. give an instruction on the , measure of damages. Montgom-
ery V. Willis, 45 Neb. 434; Porter v. Metcalf, 84 Tex. .468.
Advice of counsel as a defense.
Error committed in refusing a charge that advice of counsel would
be no defense if the criminal prosecution was commenced by de-
fendants to collect their debt is error without prejudice, where the
jury, in answer to a special question, expressly find that the crim-
(895)
§ 390 INSTRUCTIONS TO JURIES. [Ch. 32
Where a verdict is clearly right according to the law and
the evidence,^ ^® or is the only one which could have been
inal prosecution was not commenced for that purpose. Gallaway v.
Burr, 32 Mich. 332.
Instruction iased on nonexisting agreement.
Refusal to give an instruction based upon an oral agreement works
no harm, where the jury find that no such agreement had been
made. Hall v. Ballou, 58 Iowa, 585.
Effect of misrepresentations.
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
physician, a refusal to instruct that, if the applicant had such
diseases, contrary to representations made by him, he could not re-
cover, is harmless. National Life, Maturity Ins. Co. v. Whitacre, 15
Ind. App. 506.
195 White V. Chaffin, 32 Ark. 59; Conrady v. Bywaters (Tex. Civ.
App.) 24 S. W. 961; Munderbach v. Lutz's Adm'r, 14 Serg. & R.
(Pa.) 220; Woodward v. Begue, 53 Ind. 176. See, also, Johnson v.
State (Tex. Cr. App.) 35 S. W. 387.
io« Alabama: Glass v. Memphis & C. R. Co., 94 Ala. 581.
Colorado: Buckey v. Phenicie, 4 Colo. App. 204; Northern Colo-
rado Irrigation Co. v. Richards, 22 Colo. 450.
Florida: Southern Exp. Co. v. Van Meter, 17 Fla. 783; Prescott v.
Johnson, 8 Fla. 391.
Georgia: Johnson v. State, 14 Ga. 55; McQueen v. Fletcher, 77
Ga. 445; McCurdy v. Binion, 80 Ga. 691; Fry v. State, 81 Ga. 646;
Clay V. Barlow, 73 Ga. 788; Myric v. Hicks, 15 Ga. 155.
Illinois: Parker v. Fisher, 39 111. 164; New England Fire &
Marine Ins. Co. v. Wetmore, 32 111. 221; Dishon v. Schorr, 19 111. 59;
Newkirk v. Cone, 18 111. 449; Blam v. Badger, 23 111. 49S; Needham
V. People, 98 111. 275; Squire Dingee Co. v. McDonald, Ci 111. App.
607; Gray v. Knittle, 56 111. App. 302; Ennis v. Pullman's Palace
Car Co., 60 111. App. 398; East St. Louis Connecting Ky. Co. v.
O'Hara, 150 111. 580.
Indiana: Musselman v. Pratt, 44 Ind. 126; Poland v. llilier, 95
Ind. 387, 391; Worley v. Moore, 97 Ind. 15; Wilds v. Bogan, 57 Ind.
453; Lafayette & I. R. Co. v. Adams, 26 Ind. 76; Veatch v. Slate, 60
Ind. 291; Amick v. O'Hara, 6 Blackf. (Ind.) 258; Muirhead v. Sny-
der, 4 Ind. 486; Rogers v. Maxwell, 4 Ind. 243; Short v. Scott, 6
Ind. 430; Chicago, St. L. & P. R. Co. v. Butler, 10 Ind. App. 244;
(896)
Ch. 32 j REVIEW ON APPEAL. § 390
found consistent with the evidence/®'^ or where an improper
instruction could not have influenced the verdict,^®* or where
City of Logansport v. Dunn, 8 Ind. 378; Sherry v. Reynolds, 3 Ind.
201.*
Iowa: Bondurant v. Crawford, 22 Iowa, 40; Tuck v. Singer Mfg.
Co., 67 Iowa, 576; Dunham v. Dennis, 9 Iowa, 543; Gwinn v. Craw-
ford, 42 Iowa, 63; Hall v. Stewart, 58 Iowa, 681; McGregor v.
Armill, 2 Iowa, 30; State v. Hall, 97 Iowa, 400.
Kansas: Head v. Dyson, 31 Kan. 74; Rouse v. Harry, 55 Kan.
589; Atchison, T. & S. F. R. Co. v. Huitt, 1 Kan. App. 781.
Louisiana: Keene v. LIzardi, 8 La. 32.
Maine: Webher v. Read, 65 Me. 564.
Michigan: Kramer v. Gustin, 53 Mich. 291; Marcott v.. Marquette,
H. & 0. R. Co., 49 Mich. 99; Saginaw Union St. Ry. v. Michigan
Cent R. Co., SI Mich. 657; Morse v. Byam, 55 Mich. 594; Case v.
Dewey, 55 Mich. 116; Niagara Fire Ins. Co. v. De Graff, 12 Mich, 124;
Clark V. McGraw, 14 Mich. 139; Cook v. Canny, 96 Mich. 398; Finan
V. Babcock, 58 Mich. 301.
Minnesota: Dunlap v. May, 42 Minn. 309.
Mississippi: Wilson v. Kohlheim, 46 Miss. 346; Mask v. State, 7
George, 77; Thomas v. State, 61 Miss. 60; Wiggins v. McGimpsey,
13 Sinedes & M. 532; Head v. State, 44 Miss. 731; Evan v. State, 44
Miss. 762; Hanks v. Neal, 44 Miss. 212; Memphis & C. R. Co. v.
Whitfield, 44 Miss. 466; Hill v. Calvin, 4 How. 231; Josephine v.
State, 10 George, 613; Holloway v. Armstrong, 1 George, 504.
Missouri: Otto v. Bent, 48 Mo. 23; Doud v. Reid, 53 Mo. App.
553; Long v. Bolen Coal Co., 56 Mo. App. 605; Vogg v. Missouri Pac.
Ry. Co., 138 Mo. 172.
Montana: Neill v. Jordan, 15 Mont. 47; Hogan v. Shuart, 11
Mont. 498.
Nebraska: Meredith v. Kennard, 1 Neb. 312; Lamb v. HotchkisB,
14 Neb. 102; O'Hara v. Wells, 14 Neb. 403; Stratton v. Dole, 45 Neb.
472.
North Carolina: Cole v. Cole, 23 N. C. 460.
Ohio: Creed v. Commercial Bank of Cincinnati, 11 Ohio, 489.
Pennsylvania: Deford v. Reynolds, 36 Pa. 325; Eldred v. Haz-
lett's Adm'r, 38 Pa. 16.
South Carolina: State v. Slacji, 1 Bailey, 330.
Texas: B. C. Evans Co. v. Reeves, 6 Tex. Civ. App. 254; Galves-
ton, H. & S. A. Ry. Co. v. Chittim (Tex. Civ. App.) 28 S. W. 700;
Clarkson v. Whitaker, 12 Tex. Civ. App. 483; City of Galveston v.
(897)
§ 390 INSTRUCTIONS TO 'JURIES. [Ch. 32
the verdict affirmatively shov/s that the jury were not mis-
led by, or did not follow, the erroneous instruction,^®^ the
giving of erroneous instructions is harmless error, and not
a ground for reversal.^"" Thus, no prejudice results from
Morton, 58 Tex. 409; Galveston, H. & S. A. Ry. Co. v. Johnson, 74
Tex. 256.
Vermont: Sanborn v. Cole, 63 Vt. 600.
Virginia: Binns v. Waddill, 32 Grat. 588.
i Washington: Davis v. Gilliam, 14 Wash. 206; Secor v. Oregon
Imp. Co., 15 Wash. 35.
West Virginia: Bank of Huntington v. Napier, 41 W. Va. 481.
Wisconsin: Pireaux v. Simon, 79 Wis. 392.
England:" Wickes v. Clutterbuck, 2 Bing. 483.
19' Fitzgerald v. Barker, 96 Mo. 661; Greer v. Lafayette Co. Bank,
128 Mo. 560; Bushey v. Glenn, 107 Mo. 331; Western Union Tel. Co.
V. Lowrey, 32 Neb. 732; Knowlton v. Mandeville, 20 Neb. 59; Strat-
ton v. Dole, 45 Neb. 472. See, also, ante, § 389, "Error Harmless in
View of Evidence."
198 Avery v. Moore, 133 111. 74; Whitewater R. Co. v. Bridgett, 94
Ind. 216; Lathrop v. Central Iowa Ry. Co., 69 Iowa, 105; Fort Scott,
W. & W. Ry. Co. V. Jones, 48 Kan. 51; Josephine v. State, 10 George
(Miss.) 613; Houston, E. & W. T. Ry. Co. v. Hardy, 61 Tex. 230;
Loustaunau v. Lambert, 1 Tex. Civ. App. 434; Bender v. Peyton, 4
Tex. Civ. App. 57.
i99Keegan v. Kinnare, 123 111. 280; State v. Daugherty, 106 Mo.
182; Brockway v. Patterson, 72 Mich. 122; Woodman v. Davis, 32
Kan. 344; Kirby v. Wilson, 98 111. 240.
200 In equity causes.
Misleading or erroneous instructions in an equitable cause con-
stitute no ground for reversal, where the finding of the jury is
adopted by the court as in accordance with the evidence. Brandon
V. Dawson, 63 Mo. App. 359. See, also, Richardson v. City of Eu-
reka, 110 Cal. 441; Gray v. Troutman, 158 111. 171.
Burden of proof.
Where plaintiff, on trial of a traverse to the ground of an at-
tachment, successfully carried the burden of proof, a charge that the
burden was on defendant was harmless. Moore v. Brewer, 94 Ga.
260.
Error as to distinct issue.
Where the verdict finds all the issues in favor of the successful
party, if the issues are such that a finding of either of them in his
(898)
Ch. 32] REVIEW ON APPEAL. § 390
the giving of an erroneous instruction, where the jury find
against the hypothesis on which it is predicated,^*'* for in
favor entitles him to tlie judgment rendered, the judgment will not
be reversed for error in the instructions of the court relating ex-
clusively to the other. Sites v. Haverstick, 23 Ohio St. 626. "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 plaintiffs, errors In the charge upon the
subject of limitation would be immaterial." Parker v. Chancellor,
•78 Tex. 524.
2»i California: People v. Wallace, 101 Cal. 281.
Illinois: Pennsylvania Coal Co. v. Kelly, 156 111. 9.
Indiana: Ryan v. Begein, 79 Ind. 356; Louisville & N. R. Co. v.
Orr, 84 Ind. 50; Ronan v. Meyer, 84 Ind. 390, 394.
Iowa: National Horse Importing Co. v. Novak, 95 Iowa, 596;
White V. Byam, 96 Iowa, 166.
Kansas: Mcintosh v. Crawford County Com'rs, 13 Kan. 171;
Wilkes V. Wolback, 30 Kan. 375; Edwards v. Porter, 28 Kan. 700.
Michigan: English v. Caldwell, 30 Mich. 362; Oneroid v. Holtz,
103 Mich. 118. See, also. White v. Campbell, 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 St. 251.
South Carolina: Mobley v. Charlotte, C. & A. R. Co., 42 S. C.
306; Devereux v. Champion Cotton Press Co., 17 S. C. 72.
Texas: Vickers v. Kennedy (Tex. Civ. App.) 34 S. W. 458; Good-
bar v.- City Nat. Bank, 78 Tex. 461.
Vermont: Sanborn v. Cole, 63 Vt. 590.
Wisconsin: Palmer v. Banfield, 86 Wis. 441; Atkinson v. Good-
rich Transp. Co. (Wis.) 31 N. W. 164.
United States: Sunset Telephone & Telegraph Co. v. Day (C. C.
A.) 70 Fed. 364.
Measure of damages.
Where the jury find against a recovery, error In the instructions
on the measure of damages is harmless. Wilkes v. Wolback, 30
Kan. 375; Loudenback v. Collins, 4 Ohio St. 251; Olsen v. Meyer, 46
Neb. 240; Mcintosh v. Crawford Co. Com'rs, 13 Kan. 171; White v.
Byam, 96 Iowa, 166; Mobley v. Charlotte, C. & A. R. Co., 42 S.' C.
306; Devereux v. Champion Cotton Press Co., 17 S. C. 72; National
Horse Importing Co. v. Novak, 95 Iowa, 596.
Overpayments.
An instruction not to allow defendant anything overpaid by him
(899)
8 390 INSTRUCTIONS TO JURIES. [Qh. ^^'
that case the in&tmetion is rendered immaterial, as it could
not have affected the verdict or changed the result.*"^ So,
Is harmless error wli«re the jury find that there was nothing over-
paid. Ryan v. Begein, 79 Ind. SSfi.
Alteration of written instruments.
In an action on a note, the main issue being as to alteration of the
date of the note, an erroneous instruction as to the effect of an al-
teration by a third person will not work a reversal if the jury find
that the note was not altered by any one. Vickers v. Kennedy (Tex.
Civ. App.) 34 S. W. 458.
Comparative negligence.
Where the jury specially find, In an action for personal injuries,
that plaintiff was wholly free from negligence, the submission to
the jury of the exploded doctrine of comparative negligence can
work no harm. Pennsylvania Coal Co. v. Kelly, 156 111. 9, affirm-
ing 54 111. App. 622.
Usury.
Where the jury And the contract of defendaats to be joint, a
charge that the jury might find against one, even if a m,isdirection,
was immaterial, as it cannot influence the verdict. Devereux v.
Champion Cotton Press Co., 17 S. C. 72.
Exemplary damages.
Where the court erroneously charges that exemptory damages may
be given, but the jury do not award exemplary damages, the error
is harmless. Kuchenmcister v. O'Connor, 11 Wkly. Law Bui. (Ohio)
120; Freiberg v. Elliott (Tex.) 8 S. W. 322; Taylor, B. & H. Ry. Co.
V. Taylor, 79 Tex. 104; Patchell v. Jaqua, 6 Ind. App. 70, 79; Durfee
V. Newkirk, 83 Mich. 522.
Treble damages.
The fact that a jury awards a sum under the name of "single dam-
ages" does not show that no harm has resulted from an iBStruction
erroneously telling the jury that it is within their power to give
trebte damages. Jurors may have yielded their claim that the dam-
ages should be triple, In consideration of a large sum being awarded
as single damages. M<;Leod v. Ellis, 2 Wash. 117.
202 Webber v. Read, 65 Me. 564. Where the defendant Is convicted
of the lower degree of an offense, error in the charge as to the
Iiigher offense is harmless, and not ground for reversal. Wickham
V. State, 7 Cold. (Tenn.) 525; Rutledge v. State (Tex. Cr. App.) 33
S. W. 347; Blackwell v. State, 33 Tex. Cr. App. 278; Stat« v, Gat«B,
130 Mo. 351. So, error in th-e charge as to a lower degree of the
(900)
Ck 32] REVIEW 5n appeal. § 390
error in leaving a question of law to the jury is harmless,,
where the jury decide it correctly.^^ Special findings of
the jury may frequently show that they were not misled by
the giving of an erroneous instruction.^* It is only where,
offense than that of which defendant is convicted ts harmless. State
V. Dickson, 6 Kan. 209. Where defendant is convicted under only
on© count of the indictment, errors In the instructions as to the
other counts is harmless. Tigerina v. State, 35 Tex. Cr. App. 302.
So, failure to charge as to another offense contained in a different
count is not reversible error. Ray v. State, 3 Heisk. (Tenn.) 379,
note; Parham v. State, 10 Lea (Tenn.) 502. Error in instructing
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. Dudney v. State, 22 Ark. 251. Error as to the
measure of damages is immaterial where the verdict is for the de-
fendant. Manning v. Union Transfer Co., 7 Mackey, D. C. 214;
Sunman v. Clark, 120 Ind. 142. See Porter v. Metcalf, 84 Tex. 468.
So, authorizing a verdict for a greater sum than is actually due is
harmless, where the verdict is only for the sum actually due, or the
plaintiff remits the excess. Saunders v. Planiken, 77 Tex. 662. See,
also, Blaisdell v. Scally, 84 Mich. 149. Errors in the charge relating
only to the right of recovery, and not affecting the measure of dam-
ages, are harmless to the plaintiff, where the verdict is In his favor.
Lasure v. Graniteville Mfg. Co., 18 S. C. 280.'
203 Thornburgh v. Mastin, 93 N. C. 258; Allen v. Duffle, 43 Mich.
1; Moore v. Parker, 91 N. C. 276; Miller v. Eagle Life & Health Ins.
Co., 2 E. D. Smith (N. Y.) 268; Cumpston v. McNair, 1 Wend. (N.
Y.) 457; Hall v. Suydam, 6 Barb. (N. Y.) 83; Webb v. Portland &
K. R. Co., 57 Me. 117; Woodman v. Chesley, 39 Me. 45; Osgood v.
Lansil, 33 Me. 360; Pike v. Warren, 15 Me. 390. See, also, Carson
V. McCormick Harvesting Mach. Co., 36 Mo. App. 462; Galveston, H.
& S. A. Ry. Co. V. Johnson, 74 Tex. 256.
Leaving construction of written instrument to jury.
The error of leaving the effect of a written instrument to be de-
termined by the jury will not warrant reversal if a proper con-
struction of the instrument, in the light of the other facta deter-
mined by the verdict, must lead to the same result. Stadden v.
Hazzard, 34 Mich. 76; Roberts v. Alexander, 5 Lea (Tenn.) 414.
204 Bigelow V. Wygal, 52 Kan. 619; Atchison, T. & S. P. R. Co. v.
English, 38 Kan. 110; Davis v. Guarnieri, 45 Ohio St. 470; Chicago,
K. & W. R. Co. V. Parsons, 51 Kan. 408; Luke v. Johnnycake, 9 Kan.
(901)
§ 391 INSTRUCTIONS TO JURIES. [Ch. 32
from the whole case, the jury might have rendered a differ-
ent verdict, that the giving of improper instructions will be
held reversible error.^"®
§ 391. Error cured by other instructions or construction as a
whole.
In determining whether or not instructions are erroneous,
and, if erroneous, whether or not the error was prejudicial
or harmless, all the instructions given must be viewed and
construed as a whole.^"® If, when so construed, the instruc-
511; Uhl V. Harvey, 78 Ind. 26, 41; Moore v. Lynn, 79 Ind. 299;
Worley v. Moore, 97 Ind. 15, 21; Ricketts v. Harvey, 106 Ind. 564;
Woolery v. Louisville, N. A. & C. Ry. Co., 107 Ind. 381; Porter v.
Waltz, 108 Ind. 40, 45; Cline v. Lindsey, 110 Ind. 337, 348; Dickey
V. Shirk, 128 Ind. 278, 287; Montgomery v. Swindler, 32 Ohio St.
224. Thus, where the jury find, in answer to interrogatories in an
action for personal injuries, that plaintiff was not negligent, error
in submitting the doctrine of comparative negligence, or in telling
the jury that, although negligent, plaintiff may recover because of
the willfulness of defendant, can do no harm. Louisville, N. A. &
C. Ry. Co. V. Wright, 115 Ind. 378. Where the jury return a special
verdict, error in the Instructions as to the general rules of law ap-
plicable to the case is not ground for reversal. Ward v. Cochran,
18 C. C. A. 1, 71 Fed. 127.
206 Musselman v. Pratt, 44 Ind. 126.
208 Alabama: Alabama G. S. R. Co. v. Hill, 93 Ala. 514, 9 So. 722.
Arizona: United States v. Tenney, 11 Pac. 472; United States v.
Christofferson, 11 Pac. 480.
California: Monaghan v. Pacific Rolling Mill Co., 81 Cal. 190;
Ellis V. Tone, 58 Cal. 289, 297; People v. Kennedy, 55 Cal. 201;
People V. Raten, 63 Cal. 421, 424; Dwinelle v. Henriquez, 1 Cal. 387;
People V. Bagnejl, 31 Cal. 409.
Colorado: McClelland v. Burns, 5 Colo. 390; Thatcher v. Rock-
well, 4 Colo. 375, affirmed Dozenback v. Raymer, 13 Colo. 455.
Connecticut: Smith v. King, 62 Conn. 523; Collins v. Richmond
Stove Co., 63 Conn. 361.
Georgia: Terry v. Buffington, 11 Ga. 337; Flemister v. State, 81
Ga. 768.
Illinois: Twining v. Martin, 65 111. 157; Meyer v. Mead, 83 111.
19; Cowen v. People, 14 111. 348.
(902)
Ch. 32] REVIEW ON APPEAL. § 39I
tions are fair and correct as a whole, and justice has been
done, it is immaterial that a part or one or more of the in-
structions, considered separately, are erroneous. In such
Indiana: Wright v. Fanoler, 90 Ind. 492, 494; Nicoles v. Calvert,
96 Ind. 316, 318; Coble v. Eltzroth, 125 Ind. 429, 430; Craig v.
Frazier, 127 Ind. 286, 287; Anderson v. Anderson, 128 Ind. 254,
258; McDermott v. State, 89 Ind. 187, 193; Barnett v. State, 100
Ind. 171, 176; Elkhart Mutual Aid Benevolent Relief Ass'n v.
Houghton, 103 Ind. 286, 290; Boyle v. State, 105 Ind. 469, 476; Epps
V. State, 102 Ind. 539; Heyl v. State, 109 Ind. 589, 593; Clanin v.
Pagan, 124 Ind. 304; Story v. State, 99 Ind. 413, 414; Rauck v. State,
110 Ind. 384, 390; Cowger v. Land, 112 Ind. 263; Board Com'rs Jack-
son Co. y. Nichols, 139 Ind. 611; Newport v. State, 140 Ind. 299;
Lehman v. Hawks, 121 Ind. 541; White v. Beem, 80 Ind. 239, 242;
Branstetter v. Dorrough, 81 Ind. 527, 529; Louisville & N. Ry. Co. v.
Kelly, 92 Ind. 371, 375; Pennsylvania Co. v. Rusie, 95 Ind. 236, 237;
Cook v. Woodruff, 97 Ind. 134, 140; Whitesides v. Hunt, 97 Ind. 191,
204; Louisville, N. A. & C. Ry. Co. v. Shanklin, 98 Ind. 573, '576;
Walker v. State, 102 Ind. 502, 510; Robinson v. Shanks, 118 Ind. 125,
134; Conway v. Vizzard, 122 Ind. 266, 268.
Iowa: Carter v. Town of Monticello, 68 Iowa, 178; Albertson j£.
Keokuk & D. M. R. Co., 48 Iowa, 292; Burrows v. Lehndorfl, Yrowa,
96, 104; Brown v. Bridges, 31 Iowa, 138; State v. Maloy, 44 Iowa,
104; Locke v. Sioux City & P. R. Co., 46 Iowa, 109, 114; State v.
Stanley, 48 Iowa, 221; State v. Golden, 49 Iowa, 48; Beazan v. Town
of Mason City, 58 Iowa, 233; Gronan v. Kukkuck, 59 Iowa, 18; State
V. Shreves, 81 Iowa, 615; Pish v. Chicago, R. I. & P. R. Co., 81 Iowa,
280; Martin v. Murphy, 85 Iowa, 669; Roberts v. Morrison, 75 Iowa,
321; Kohn v. Johnston, 97 Iowa, 99.
Kansas: City of Wyandotte v. White, 13 Kan. 191.
Michigan: Russell v. Phelps, 42 Mich. 378; Welch v. Ware, 32
Mich. 77; Burdick v. Michael, 32 Mich. 246; Anderson v. Walter, 34
Mich. 113; Hart v. Newton, 48 Mich. 401; Coots v. Chamberlain, 39
Mich. 565; Eggleston v. Boardman, 37 Mich. 14; Brown v. McCord
& Bradfleld Furniture Co., 65 Mich. 360, 32 N. W. 441; Kirchner v.
Detroit City R. R., 91 Mich. 400; Souvals v. Leavltt, 50 Mich. 108;
McGinnis v. Kempsey, 27 Mich. 363; Daniels v. Clegg, 28 Mich. 32;
Greenlee v. Lowing, 35 Mich. 64; People v. Finley, 38 Mich. 482;
Lake Superior Iron Co. v. Erickson, 39 Mich. 492; Wheeler & Wil-
son Mfg. Co. v. Walker, 41 Mich. 239; DriscoU v. People, 47 Mich.
413; People v. Howard, 50 Mich. 239; Kuney v. Dutcher, 56 Mich.
(903)
g 391 xNSTRTKrnONS TCT JURIES. [Ch. 32
case, the, error is harmless, and not ground for reyersal.^"'
This rule is, of course, always subject to the qualification
808; 'W^atson v. Watson, 58 Mich. 507; Brown v. McCord & Bradfleld
Furniture Co., 65 Mich. 360.
Missouri: Noble v. Blount, 77 Mo. 235.
Montana: Territory v. Hart, 7 Mont. 489.
Nebraska: St. Louis v. State, 8 Neb. 406; Murphy v. State, 15
Neb. 383; Debney v. State, 45 Neb. 856, 64 N. W. 446; Ford v. State,
46 Neb. 390, 64 N. W. 1082; Gray v. Farmer, 19 Neb. 69; Campbell
T. Holland, 22 Neb. 587; Stein v. Vannice, 44 Neb. 132.
New Jersey: Sullivan v. North Hudson Co. R. Co., 51 N. J. Law,
518.
Ohio: Cleveland, C. & C. R. Co. v. Terry, 8 Ohio St. 570.
Oregon: State v. Anderson, 10 Or. 448.
Pennsylvania: Irvin v. Kutruff, 152 Pa. 609; Pennsylvania R.
Co. V. Coon, 111 Pa. 430; Carothers v. Dunning, a Serg. & R. 373:
Little Schuylkill Navigation, Railroad & Coal Co. v. French, 2 Wkly.
Notes Cas. 718; Sharer v. Dobbins, 195 Pa. 82.
South Carolina: Hume, Small & Co. v. Insurance Co., 23 S. C.
204; Carolina, Cumberland Gap & C. Ry. Co. v. Seigler, 24 S. C. 132;
Jordan v. Lan- 22 S. C. 164; Bauskett v. Keitt, 22 S. C. 191; State
V. Martin, 47 S. C. 67; State v. Boyd, 35 S. C. 269.
Tennessee: State v. Cagle, 2 Humph. 414.
Texas: Texas & P. Ry. Co. v. Neill (Tex. Civ. App.) 30 S. W.
369; Gatlin v. State, 5 Tex. App. 531; Moore v. Moore, 73 Tex. 382;
Thrasher v. State, 3 Tex. App. 281; St. Louis & S. F. Ry. Co. v. Mc-
Clain, 80 Tex. 85; Moore v. Moore (Tex.) 11 S. W. 396; Morgan v.
Giddings (Tex.) 1 S. "W. 369; San Antonio & A. P. Ry. Co. v. Corley
(Tex. Civ. App.) 26 S. W. 903; Decatur Cotton Seed Oil Mill Co. v.
Johnson (Tex. Civ. App.) 35 S. W. 951; Kauffman v. Babcock, 67
Tex. 241; Brackett v. Hinsdale, 2 Posey, TJnrep. Cas. 468; Freiberg
V. Johnson, 71 Tex. 558; Rost v. Missouri Pac. Ry. Co., 76 Tex. 168;
Baker v. Ashe, 80 Tex. 358; Jobe v. Houston (Tex. Civ. App.) 23 S.
W. 408; Johns v. Brown, 1 White & W. Civ. fcas. Ct. App. § 1017;
Numsen v. Ellis, 3 Willson, Civ. Cas. Ct. App. § 135.
Washington Territory: City of Seattle v. Buzby, 2 Wash. T. 25;
Brown v. Forest, 1 Wash. T. 201.
Wisconsin: Tuckwood v. Hanthorn, 67 Wis. 326.
United States: Magniac v. Thompson, 7 Pet. 348; Empire Spring
Co. V. Edgar, 99 U. S. 645; Northern Pac. R. Co. v. Babcock, 154 U.
S. 190, 14 Sup. Ct. 978; Butler v. Machen, 13 C. C. A. 197, 65 Fed.
(904)
Ch. 32] REVIEW ON APPEAL. § 391
that the jury must not have been misled by the alleged error
to the prejudice of the party complaining, and in most cases
901; Northern Pac. R. Co. v. Poirler (C. C. A.) 67 Fed. 881. See,
also, § 385, "Construction as a "Whole."
207 Alabama: Southern Ry. Co. v. Lynn, 29 So. 573; Montgomery
& E. Ry. Co. y. Stewart, 91 Ala. 421.
Arkansas: Hurley v. State, 29 Ark. 17.
California: People v. Emerson, 130 Cal. 562; Ballou v. Andrews
Banking Co., 128 Cal. 562, 61 Pac. 102; Murray v. White, 82 Cal. 119;
People T. Lee Chuck, 78 Cal. 317, 20 Pac. 719; People v. Anderson,
105 Cal. 32, 38 Pac. 513.
Colorado: Dozenback v. Raymer, 13 Colo. 451, 22 Pac. 787;
Simonton v. Rohm, 14 Colo. 51; Hurd v. Atkins, 1 Colo. App. 449;
Coleman v. Davis, 13 Colo. 98.
Florida: Kennard v. State, 28 So. 858.
Georgia: Webb v. Wight & Weslosky Co., 112 Ga. 432; Lukens v.
Ford, 87 Ga. 541, 13 S. E. 949; Georgia R. Co. v. Thomas, 73 Ga. 350;
Nixon V. State, 75 Ga. 862; Hart v. Thomas, 75 Ga. 529; Central R.
Co. V. Mitchell, 63 Ga. 173; Central Railroad & Banking Co. v. Nash,
81 Ga. 581; Mousseau v. Dorsett, 80 Ga. 566; City & Suburban Ry.
V. Findley, 76 Ga. 317; Central R. R. v. De Bray, 71 Ga. 408; State
V. Southwestern R. R., 70 Ga. 13; Terry v. Buffington, 11 Ga. 337;
Flemlster v. State, 81 Ga. 768; Phillips v. Ocmulgee Mills, 55 Ga.
633.
Idaho: Territory v. Evans, 2 Idaho, 391.
Illinois: Johnston v. Hirschberg, 85 111. App. 47; Chicago & W.
I. R. Co. V. Doan, 93 111. App. 247; Howard v. People, 185 111. 552, 57
N. B. 441; Fessenden v. Doane, 188 111. 228, 58 N. E. 974; Toledo, W.
& W. Ry. Co. V. Ingraham, 77 III. 309; Ritzman v. People, 110 111.
363; City of Peoria v. Simpson, 110 111. 294; Van Buskirk v. Day, 32
III. 260; Morgan v. Peet, 32' 111. 281; Durham v. Goodwin, 54 111. 469;
Walker v. Collier, 37 111. 362; Yundt v. Hartrunft, 41 111. 9; Town
of Vinegar Hill v. Busson, 42 111. 45; Murphy v. People, 37 III. 447;
Kennedy v. People, 40 111. 488; Howard Fire & Marine Ins. Co. v.
Cornick, 24 III. 455; Warren v. Dickson, 27 III. 115; Springdale Ceme-
tery Ass'n V. Smith, 24 111. 480; Lawrence v. Hagerman, 56 111. 68;
City of Aurora v., Gillett, 56 III. 132; Chicago, B. & Q. R. Co. v. Dunn,
61 111. 385; Illinois Cent. R. Co. v. Mafflt, 67 111. 431; Kendall v.
Brown, 86 111. 387; Terre Haute & I. R. Co. v. Eggmann, 159 111. 550,
42 N. E. 970; Williams v. John Davis Co., 54 111. App. 198; Smith
v. Binder, 75 III. 492; Hiner v. Jeanpert, 65 HI. 428; Gilchrist v.
Gilchrist, 76 111. 281; Lawrence v. Jarvis, 32 111. 304.
Indiana: Lemmon v. Moore, 94 Ind. 40, 43; Citizens' St. Ry. Co.
(905)
§ 391 INSTRUCTIONS TO JURIES. [Ch. 33
the rule is stated with this qualification.-"^ In determining
this point, the rule as to the presumption of prejudice is
V. Mere, 26 Ind. App. 284; Wabash & W. Ry. Co. v. Morgan, 132 Ind.
430; Boyle v. State, 105 Ind. 469, 476; McDermott v. State, 89 Intl.
187; Eggleston v. Castle, 42 Ind. 531; McCaughey v. State, 156 Ind.
41; Cowger v. Land, 112 Ind. 263, 267; Craig v. Frazier, 127 Ind.
286, 287; Boyle v. State, 105 Ind. 469; Branstetter v. Dorrough, 81
Ind. 527, 529; Conrad v. Kinzie, 105 Ind. 281, 286; Indiana, B. & W.
Ry. Co. V. Cook, 102 Ind. 133, 138; Atkinson v. Dalley, 107 Ind. 117,
118; Kennedy v. State, 107 Ind. 144, 149; Beugnot v. State, 11 Ind.
App. 620; Louisville, N. A. & C. Ry. Co. v. White, 94 Ind. 257, 260;
Stout v. State, 96 Ind. 407, 410; Louisville, N. A. & C. Ry. Co. v.
Jones, 108 Ind. 551, 567; Rauck v. State, 110 Ind. 384, 390; Deig v.
Morehead, 110 Ind. 451, 461; Louisville, N. A. & C. Ry. Co. v.. Wright,
115 Ind. 378, 396; Patchell v. Jaqua, 6 Ind. App. 70, 77; Colee v.
State, 75 Ind. 511, 515; Lytton v. Baird, 95 Ind. 349, 355; Elkhart
Mutual Aid, Benevolent & Relief 'Ass'n v. Houghton, 103 Ind. 286,
290; Goodwin v. State, 96 Ind. 550; Story v. State, 99 Ind. 413. 414;
Gallaher v. State, 101 Ind. 411, 412; Rhodes v. State, 128 Ind. 189,
194; Roots v. Beck, 109 Ind. 472; Louisville, N. A. & C. Ry. Co. v.
Wright, 115 Ind. 378; White v. New York, C. & St. L. R. Co., 142 Ind.
648, 42 N. E. 456; Lofland v. Goben, 16 Ind. App. 67; Sawyer v. State,
35 Ind. 80, 81; Toler v. Keiher, 81 Ind. 383, 389; Cassady v. Magher,
85 Ind. 228, 230; Ryman v. Crawford, 86 Ind. 262, 269; Cooper v.
Robertson, 87 Ind. 222, 225; Norris v. Casel, 90 Ind. 143, 147; Led-
ford V. Ledford, 95 Ind. 283, 286; Daniels v. McGinnis, 97 Ind. 54,9,
653; Sanders v. Weelburg, 107 Ind. 266, 276; State v. Ruhlman, 111
Ind. 17, 22; State v. Caldwell, 115 Ind. 614; Simmon v. Larkin, 82
Ind. 385, 387; Wales v. Miner, 89 Ind. 118, 128; Norris v. Casel, 90
Ind. 143, 147; Mand v. Trail, 92 Ind. 521, 525; Newcomer v. Hutch-
ings, 96 Ind. 119, 123; Stockwell v. Brant, 97 Ind. 474, 477; Standard
Oil Co. V. Bretz, 98 Ind. 231, 236; Perry v. Makemson, 103 Ind. 300,
302; Winchester Wagon Works & Manufacturing Co. v. Carman,
109 Ind. 31, 35; State v. Ruhlman, 111 Ind. 17, 22; Stevens v. Stevens,
127 Ind. 560, 565; Woods v. Board of Com'rs of Tipton Co., 128 Ind.
sosKrulder v. Woolveton, 9 Misc. Rep. 359, 29 N. T. Supp. 696;
State V. Brennan, 2 S. D. 384; Louisville & N. R. Co. v. Orr, 94
Ala. 602; Rand v. C. R. Johns & Sons (Tex. App.) 15 S. W. 200;
Coble V. Ellzroth, 125 Ind. 429, 25 N. E. 544; Patrick Red Sandstone
Co. V. Skoman, 1 Coio. App. 323; State v. Rosener, S Wash. 42, 35
Pac. 357; North Chicago St. R. Co. v. Boyd, 156 111. 416; Ferris v.
(906)
Ch. 32] REVIEW ON APPEAL. § 39I
applicable, though, of course, where the whole charge, reason-
ably construed, has no tendency to mislead, and it does not
289, 292; Haxton t. McClaren, 132 Ind. 235, 247; Louisville, N. A. &
C. Ry. Co. V. Nicholai, 4 Ind. App. 119,. 127.
Iowa: Hamilton v. State Bank, 22 Iowa, 306; Dixon v. Stewart,
33 Iowa, 125; State v. Pierce, 65 Iowa, 85; Green v. Cochran, 43
Iowa, 544; State v. McClintie, 73 Iowa, 663; Osborne v. Simmerson,
73 Iowa, 509; Knapp v. Sioux City & P. R. Co., 71 Iowa, 41; Riegel-
marr v. Todd, 77 Iowa, 696; Albertson v. Keokuk & D. M. R. Co., 48
Iowa, 292; Harrison v. Snair, 76 Iowa, 558; State v. Pugsley, 75
Iowa, 743; State v. Murdy, 81 Iowa, 603; Jamison v. Weaver, 81
Iowa, 212; Halt v. Smith, 74 Iowa, 667.
Kansas: State v. Dickson, 6 Kan. 209; State v. Yarborough, 39
Kan. 588; Cain v. Wallace, 46 Kan. 139; Hays v. Farwell, 53 Kan.
78; Central Branch U. P. R. Co. v. Andrews, 41 Kan. 370, 21 Pac.
272.
Kentucky: Rucker v. Hamilton, 3 Dana, 43.
Louisiana: State v. Hannibal, 37 La. Ann. 619; State v. Fergu-
son, 37 La. Ann. 51.
Maryland: Gill v. Staylor, 49 Atl. 650.
Michigan: McGlnnis v. Kempsey, 27 Mich. 363; Dibble v. Nash,
47 Mich. 589; Frankel v. Coots, 41 Mich. 75; Pray v. Cadwell, 50
Mich. 222; Greenlee v. Lowing, 35 Mich. 64; Driscoll v. People, 47
Mich. 413; Cleveland v. Miller, 94 Mich. 97, 53 N. W. 961.
Minnesota: Spencer v. Tozer, 15 Minn. 146 (Gil. 112).
Mississippi: Hawthorne v. State, 58 Miss. 778; Mask v. State, 7
George, 77; Evans v. State, 44 Miss. 731.
Missouri: State v. Miller, 159 Mo. 113; State v. Mathews, 98 Mo.
125; Reilly v. Hannibal & St. J. R. Co., 94 Mo. 600; State v. Gregory,
30 Mo. App. 582; Chicago. S. F. & C. Ry. Co. v. Vivian, 33 Mo. App.
583; Blaydes v. Adams, 35 Mo. App. 526; Missouri P. R. Co. v.
Schoennen, 37 Mo. App. 612; Wallich v. Morgan, 39 Mo. App. 469;
Harrington v. City vt Sedalia, 98 Mo 583; Wetzell v. Wagoner, 41
Mo. App. 509; Missouri P. Ry. Co. v. Schoennen, 37 Mo. App. 612;
Brooks V. Hannibal & St. J. R. Co., 85 Mo. App. 571; Hunt v. Hunter,
52 Mo. App. 263; Minter v. Kansas City Hardware Co., 50 Mo. App.
Chicago, S. F. & C. R. Co., 51 Mo. App. 297; Bayne v. State, 29
Tex. App. 132; Blaydes v. Adams, 35 Mo. App. 526; Missouri Pac.
Ry. Co. V. Schoennen. 37 Mo. App. 612; Hutchins v. Weldin, 114
Ind. 80; People v. Williams, 92 Hun, 354, 36 N. Y. Supp. 511; Spies
v. People, 122 111. 1; People v. Dimick, 107 N. Y. 13; Lawder v.
(907)
§ 391 INSTRUCTIONS TO JURIES. [Ch. 32
appear that the jury were in fact misled, prejudice will not
be presumed.^"* Error in a detached clause may be ground
177; N«ble v. Blount, 77 Mo. 236; Singer & Talcott Stone Co. v. Sin-
clair, 10 Mo. App. 593.
Montana: State v. Whorton, 63 Pac. 627.
Nebraska: Sioux City & P. R. Co. v. Pinlayson, 16 Neb. 578, 20
N. W. 860; Gray v. Farmer, 19 Neb. 69, 26 N. W. 593; Bartliug v.
Hinderson, 36 Kan. 754; Delg v. Morehead, 110 Ind. 451; Kopelke
V. Kopelke, 112 Ind. 435; Cooper v. State, 120 Ind. 377. 381; Illi-
nois Cent. R. Co. v. Swearingen, 47 111. 206; Scovill v. Glasner,
79 Mo. 449; Muehlhausen v. St. Louis R. Co., 91 Mo. 332; First
Nat. Bank of Burlington v. Hatch, 98 Mo. 376; Daniels v. Clegg,
28 Mich. 32; Siebert v. State, 95 Ind. 471, 478; Stout v. State, 96
Ind. 407, 410; Pinerty v. Fritz, 6 Colo. 136; Springdale Cemetery
Ass'n V. Smith, 24 111. 480; Fassett v. Town of Roxbury, 55 Vt. 552;,
Parker v. Dubuque S. W. R. Co., 34 Iowa, 399; Brown v. Bridges,
31 Iowa, 138; Ferguson v. Beadle, 30 Iowa, 477; Village of Ev-
anston v. Gunn, 99 U. S. 660, 25 L. Ed. 306; Washington & G. R.
Co. V. Gladmon, 15 Wall. (U. S.) 401, 21 L. Ed. 114; Carring'con
V. Pacific Mail Steamship Co., 1 Cal. 475; Hanscom v. Doullard,
79 Cal. 234; Smothers v. Hanks, 34 Iowa, 286; Central Branch Union
Pac. R. Co. V. Andrews, 41 Kan. 371; Lauder v. Henderson, 36 Kan.
754; State v. Miller, 35 Kan. 329; Brooks v. Allen, 62 Ind. 401;
Hayes v. West, 37 Ind. 21; Bundy v. MoKnight, 48 Ind. 502; St.
Louis, V. & T. H. R. Co. v. Funk, 85 111. 460; Latham v. Roach,
72 111. 179; Toledo, W. & W. Ry. Co. v. Ingraham, 77 lU. 309;
Cleveland, C, C. & I. Ry. Co. v. Bates, 91 Ind. 289; People v. Cleve-
land, 49 Cal. 578; Knowles v. Crampton, 55 Conn. 344; Morehouse
V. Remson, 59 Conn. 401; Collins v. Richmond Stove Co., 63 Conn.
361, 363; Smith v. Meldren, 107 Pa. 348; City Bank's Appeal, 54
Conn. 273; O'Hara v. Richardson, 46 Pa. 385; Shimer v. Jones, 47
Pa. 268; Lodge v. Gatz, 76 111. 272; Magee ■». Billingsley, 3 Ala.
680; Rogers v. Davidson, 142 Pa. 436; Cooper v. Grand Trunk Ry.,
49 N. H. 209, 213; Lord v. Lord, 58 N. H. 7, 11; Vaughan v. State,
21 Tex. 752; Young v. Clegg, 93 Ind. 371, 375; Stockwell v. Brant,
97 Ind. 474, 477; Louisville, N. A. & C. Ry. Co. v. Jones, 108 Ind.
651, 567; Able v. Lee, 6 Tex. 427; Caldwell v. New Jersey Steam-
boat Co., 47 N. Y. 282; Sperry v. Miller, 16 N. Y. 407; Heffley v.
Poorbaugh (Pa.) 10 Atl. 12; Oxnard v'. Swanton, 39 Me. 125; Eck-
els V. State, 20 Ohio St. 508, 614; Columbus, H. V. & T. Ry. Co.
V. Shannon, 4 Ohio Cir. Ct. R. 449; Nelson v. State, 61 Miss. 212.
(908)
Ch. 32] REVIEW ON APPEAL. § 391
for reversal, liowever, where it is such as to render the entire
instruction erroneous, hwt only in such cases.^^**
Each instruction given need not embrace all the issues, oi
Behrends, 20 Neb. 211, 29 N. W. 472; Campbell v. Holland, 22 Neb.
587. 35 N. W. 871; City of Lincoln v. Smith, 28 Neb. 762, 45 N. W.
41; Parrish v. State, 14 Neb. 60, 15 Neb. 357; Martin v. State, 30
Neb. 507,, 46 Neb. 621; St. Louis v. State, 8 Neb. 406; Omaha & C. B.
Ry. & Bridge Co. v. Levinston, 49 Neb. 17.
Nevada: Caples v. Central P. R. Co., 6 Nev. 265; State v. Ray-
mond, 11 Nev. 98; State v. Donovan, 10 Nev. 36; Allison v. Hagan,
12 Nev. 38; State v. Pitchard, 15 Nev. 74; Solen v. Virginia & T. R.
Co., 13 Nev. 106.
New York: Goll v. Manhattan Ry. Co., 57 N. Y. Super. Ct. 74, 125
N. .Y. 714; Looram v. Second Ave. R. Co., 11 N. Y. St. Rep. 652;
Wallace v. Nodine, 57 Hun, 239, 32 N. Y. St. Rep. -657, 10 N. Y. Supp.
919; Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; Brady v.
Caseidy, 9 Misc. Rep. 107, 29 N. Y. Supp. 45.
North Carolina: Lewis v. Albemarle & R. R. Co., 95 N. C. 179.
Oregon: Farmers' & Traders' Nat. Bank v. Woodell, 61 Pac. 837.
Pennsylvania: H. B. Ciaflin Co. v. Qu«rns, 15 Pa. Super. Ct. 464;
Com. V. Warner, 13 Pa. Super. Ct. 461; Totten v. Hicks, 3 Kulp, 60;
Linn V. Naglee, 4 Whart. 92; Alexander v. Com., 105 Pa. 1; Horton
V. Chevlngton & B-unn Coal Co., 2 P«nny. 43 ; Lehigh Valley R. Co.
V. Brandtmai«r, 113 Pa. 610.
South Carolina: McGhee v. W€lls, 57 S. C. 280, 35 S. B. 529;
State V. Lee, 58 S. C. 335, 36 S. B. 706; State v. Butler, 47 S. C. 25;
State V. Williams, 35 S. €. 344; State v. Banister, 35 S. C. 290; Bal-
lon V. Young, 42 S. C. 170.
Texas: Spears v. State (Tex. Cr. App.) 56 S. W. 347; Wood v.
Cham'bers, 20 T«x. 247; Mercer v. Hall, 2 Tex. 284; Robinson v.
Varnell, 16 Tex. 382; Street v. State, 7 Tex. App. 5; Rost v. Missouri
P. Ry. Co., 76 Tex. 168; Hodges v. State, 22 Tex. App.. 415; Port
Worth & D). G. Ry. Co. v. Hogsett, 67 T«x. 685; Jobe v. Houston
(Tex. Civ. App.) 23 S. W. 408; St. Louis & S. P. Ry. Co. v. MoLain
(Tex.) IS S. W. 789; Prldham y. Weddington, 74 Tex» 354; Ross v.
■ State, 29 Tex. 499.
Utah: MeOormick v. Queen of Sheba Gold Min. & Mill. Co., 63
^ooSee ante, §§ 378, 379, "Presumption of Prejudice." See, also,
ante, §§ 387, 388, "General Rules."
210 Cooper v. Smith, 119 Ind. 313, 316.
(909)
§ 391 INSTRUCTIONS TO JURIES. [Ch. 32
the whole case, or the whole of any branch of the case.^'*
Nor need an instruction contain in itself all the qualifications
and conditions necessary to render it correct and applicable
to the case at bar.^'^ The proper qualification may be made
Pac. 820; Nickles v. Wells, 2 Utah, 167; People v. Sensabaugh, 2
Utah. 473.
West Virginia: Huffman v. Alderson's Adm'r, 9 W. Va. 616.
United States: Evanston v. Gunn, 99 U. S. 660; Gregg v. Moss,
14 Wall. 564, 20 L. Ed. 740; Western Coal & Min. Co. v. Ingraham,
17 C. C. A. 71, 70 Fed. 219.
2" Hawkins v. Hudson, 45 Ala. 482; People v. Tamkin, 62 Cal.
468; People v. Morine, 61 Cal. 367; People v. Clark, 84 Cal. 573,
24 Pac. 313; Hayes v. West, 37 Ind. 21; Bundy v. McKnight, 48
Ind. 502; Taylor v. Wootan, 1 Ind. App. 188, 194; Schroeder v.
Michel, 98 Mo. 43, 11 S. W. 314; Karle v. Kansas City, St. J. &
C. B. R. Co., 55 Mo. 476; Muehlhausen v. St. Louis R. Co., 91 Mo.
332; Dougherty v. Missouri R. Co., 97 Mo. 647; Fletcher v. Mil-
burn Mfg. Co., 35 Mo. App. 321; McKeon v. Citizens' Ry. Co., 43
Mo. 405; Shaw v. Missouri & Kansas Dairy Co., 56 Mo. App. 521;
Anderson v. Walter, 34 Mich. 113; Peterson v. Chicago, M. & St.
P. Ry. Co., 38 Minn. 511, 39 N. W. 485; Nebraska Nat. Bank v.
Burke, 44 Neb. 234; Barringer v. Burns, 108 N. C. 606; Deere v.
Wolf. 77 Iowa, 115, 41 N. W. 588; Timins v. Chicago, R. I. & P.
Ry. Co., 72 Iowa, 94; Munger v. City of Waterloo, 83 Iowa, 559;
Chapin v. Chicago, M. & St. P. Ry. Co., 79 Iowa, 582; Punston v.
Chicago, R. I. & P. R. Co., 61 Iowa, 452; Freiberg v. Johnson, 71
Tex, 558; Clisby v. Mobile & 0. R. Co., 78 Miss. 937; City of Rock
Island V. Staiky. 189 III. 515, 59 N. E. 971; Ohliger v. City of To-
ledo. 20 Ohio Cir. Ct. R. 142, 10 Ohio Cir. Dec. 762; Welsh v. Com.
(Ky.) 60 S. W. 185; State v. Kyne (Kan. App.) 62 Pac. 728; St.
Louis. 1. M. & S. Ry. Co. v. Baker, 67 Ark. S31, 55 S. W. 941;
Smitson v. Southern Pao. Co., 37 Or. 74.
212 Taylor v. Wootan, 1 Ind. App. 188, 194; People v. Welch, 49
Cal. 174; Hickenbottom v. Delaware, L. & W. R. Co., 122 N. Y. 91;
People V. Clark, 84 Cal. 573; People v. Hurtado, 63 Cal. 288; Rice
V. City of Des Moines, 40 Iowa, 638; Gates v. Manny, 14 Minn. 21;
People V. Doyell, 48 Cal. 85; People v. Etting, 99 Cal. 677; Perrette
T. City of Kansas City, 162 Mo. 238; Farmers' & Traders' Nat. Bank
V. Woodell, 38 Or. 294.
(910)
Ch, 32] REVIEW ON APPEAL. § 391
in separate instructions.^'^ The trial judge cannot be ex-
pected to reiterate every qualification and condition with ev-
ery clause of the charge.^^* "If an instruction contains a
complete statement of a proposition of law applicable to the
facts in a given case, it vyill be held good as a part of a series
containing the entire law of the case."^'* But so far as an
instruction undertakes to state a proposition of law, it must
do so completely and correctly.^'® Thus, an instruction
which attempts to cover the whole case, and authorizes a find-
ing for one party or the other, according as the jury may de-
termine certain facts, is erroneous if it omits any material
issue, and such error is not cured by another instruction,
properly submitting the omitted issue.^'^
213 Bradley v. Lee, 38 Cal. 362; People v. Clark, 84 Cal. 573; Lom-
bard V. Chicago, R. L & P. R. Co., 47 Iowa. 494; Stier v. City of
Oskaloosa, 41 Iowa, 353; Allen v. Burlington, C. R. & N. R. Co.,
57 Iowa, 623; Keech v. Enriquez, 28 Fla. 597; Davis v. Button, 78
Cal. 247; Omaha Fair & Exposition Ass'n v. Missouri Pac. Ry. Co.,
42 Neb. 105; Meyer v. Southern Ry. Co. (Mo.) 36 S. W. 367; City
Council of Augusta v. Tharpe, 113 Ga. 152; De St. Aubin v. Mar-
shall Field & Co., 27 Colo. 414; West Chicago St. Ry. Co. v. Krom-
shinsky, 185 111. 92, 56 N. E. 1110; Fletcher v. South Carolina &
G. E. R. Co., 57 S. C. 205, 35 S. E. 513; Smitson v. Southern Pac.
Co., 37 Or. 74; Thackston v. Port Royal & W. C. Ry. Co., 40 S. C. 80.
21* Watson V. Watson, 58 Mich. 507.
215 Taylor v. Wootan, 1 Ind. App. 188, 194; Walker v. Collier, 37
111. 362; Yundt v. Hartrunft, 41 111. 9.
216 Forsyth v. Bower, 54 Cal. 639; Ottawa, 0. & F. R. V. R. Co.
V. McMath, 4 111. App. 356; Sweet v. Leach, 6 111. App. 212; Gale
V. Rector, 5 111. App. 481; Ohio, I. & W. Ry. Co. v. Kleinsmith, 38
111. App. 45. But see Schroeder v. Michel, 98 Mo. 43.
2i7Hohstadt v. Daggs, 50 Mo. App. 240; Grieb v. Caraker, 57
111. App. 678; Burlingim v. Baders, 45 Neb. 673; Territory v. Han-
cock (Ariz.) 35 Pac. 1060; Georgia & A. R. Co. v. Rawson, 112 Ga.
471; Desnoyers Shoe Co. v. Lisman, 85 Mo. App. 340; McVey v. St.
Clair Co. (W. Va.) 38 S. E. 648; McNulta v. Jenkins, 91 111. App.
309; Norfolk & W. Ry. Co. v. Mann (Va.) 37 S. E. 849; Dobson v.
State (Neb.) 85 N. W. 843; State v. Davies, 80 Mo. App. 239.
(911)
g 39L INSTRUCTIONS TO JURIES. [Ch. 32
The general charge must he construed in connection with
the special charges, and errors or defects in the general charge
may be cured by correct special instructions.^^* But it is
usually held that errors in the specific charges are not cured
by the correctness of the general charge.^^®
Errors in and objections to particular instructions which,
in view of other instructions, or the charge, considered as
a whole, could not reasonably have misled the jury, are there-
by cured, and are not ground for reversal.^^" But where there
218 Campbell v. Fisher (Tex. Civ. App.) 24 S. "W. 661; Hem-
mingway v. Garth, 51 Ala. 530; Hammett v. Brown, 60 Ala. 498;
Simpson v. Krumdiek, 28 Minn. 352; Goldberg v. MoCracfeen (Tex.)
8 S. W. 676; Claflin v. Swoyer, 5 Kulp (Pa.) 107; Missouri, K. &
T. Ry. Co. of Texas v. Rodgers, 89 Tex. 675.
218 Pittsburgh, C. & St. L. Ry. Co. v. Krouse, 40 Ohio St. 223;
Baxter v. Waite, 2 Wash. T. 228; Trogdon v. State, 133 Ind. 1, 10;
Murray v. Com., 79 Pa. 311; Rice v. Olin, 79 Pa. 391. But see
Pierce v. Cloud, 42 Pa. 102.
An obscure answer to a point may be aided by the general charge,
but not an erroneous one. Murray v. Com., 79 Pa. 311; Rice v.
Olin, 79 Pa. 391.
220 Dodds v. Estill, 32 Mo. App. 47; Hall v. State, 8' Ind. 439;
Abraham v. Wilkins, 17 Ark. 292; People v. Warren, 130 Cal. 683;
Warren v. Dickson, 27 111. 115; Esty v. Snyder, 41 111. 363; Mont-
gomery v. Crossthwait, 90 Ala. 553, 8 So. 498; Sullivan v. People,
31 Mich. 1; People v. Levine, 85 Cal. 39; Deane Steam-Pump Co.
V. Green, 31 Mo. App. 269; Hargrave v. State (Tex. Cr. App.) 30
S. W. 444; State v. Jansen, 22 Kan. 498; Porter v. Brown, 55 111.
App. 142; People v. Clement (Mich.) 86 N. W. 535, 8 Detroit Leg.
N. 256; Carson v. McCormick Harvesting Mach. Co., 36 Mo. App. 462;
Price V. Coblitz, 21 Ohio Cir. Ct. R. 732, 12 Ohio Cir. Dec. 34;
Houston & T. C. Ry. Co. v. Moss (Tex. Civ. App.) 63 S. W. 894;
Cederson v. Oregon R. & Nav. Co., 38 Or. 343; North Chicago St.
R. Co. V. Boyd, 156 HI. 416; Davis v. Baker, 88 HI. App. 251;
Hulett V. Missouri, K. & T. Ry. Co., 80 Mo. App. 87, 2 Mo. App.
Rep'r, 527; Longley v. Com. (Va.) 37 S. E. 339; Crutcher v. Schick,
10 Tex. Civ. App. 676; Anderson v. Union Terminal R. Co., 161 Mo.
411; Schieffelln v. Schieffelln, 127 Ala. 14; Chicago, I. & E. Ry. Co.
V. Patterson, 26 Ind. App. 295; Cahow v. Chicago, R. I. & P. Ry-
(912)
(Jll. 32] REVIEW ON APPEAL. § 39I
is danger that the jury were misled, the error is not cured.^^^
"A correct instruction does not necessarily cure an error in
another instruction^ unless, as a series, the instructions state
the law correctly."^^" Mere insufSciency in an instruction
correct as far as it goes may be cured by other instructions.^**
Co. (Iowa) 84 N. W. 1056; Houston & T. C. Ry. Co. v. Shirley (Tex.
Civ. App.) 24 S. W. 809: Gardner v. Cooper, 9 Kan. App. 587, 60
Pac. 540; People v. Warren, 130 Cal. 678; Provident Sav. Life
AsBur. Boc. V. Hadley, 43 C. C. A. 25, 102 Fed. 856; Boldenwlok v.
Cahill, 187 III. 218, 58 N. B. 351; Schmitt & Bro. Co. v. Mahoney,
60 Neb. 20, 82 N. W. 99; Lewis v. Western Union Telegraph Co.,
57 S. C. 325, 35 S. E. 556; King v. King, 155 Mo. 406, 56 S. W. 534;
Johnson v. International & G. N. R. Co. (Tex. Civ. App.) 57 S. W.
869; State v. Corcoran (Idaho) 61 Pac. 1034; Faxon v. Jones, 176
Mass. 138, 57 N. E. 360; Smith v. King, 62 Conn. 515, 26 Atl. 1059.
221 Illinois Cent. R. Co. v. Sanders, 58 111. App. 117; Toledo, W.
& W. Ry. Co. V. Larmon, 67 111. 68; State v. Hatcher, 29 Or. 309;
People V. Marshall, 112 Cal. 422; Morris v. Gleason, 1 111. App. 510;
People V. Chew Sing Wing, 88 Cal. 268; Shugart v. Halllday, 2
111. App. 45; Sickle v. Wolf, 91 Wis. 396, 64 N. W. 1028; Grleb v.
Caraker, 57 111. App. 678; Guinard v. Knapp-Stout & Co. Company,
90 Wis. 123; Johnson v. Superior Rapid Transit Ry. Co., 91 Wis.
233, 64 N. W. 753; Fick v. Mohr, 92 111. App. 280; Nicholson v.
Merritt (Ky.) 59 S. W. 25; Galveston, H. & S. A. Ry. Co. v. English
(Tex. Civ. App.) 59 S. W. 626; Ft. Worth & D. C. Ry. Co. v. Peter-
son, 24 Tex. Civ. App. 548; Endowment Rank, Order of K. P., v.
Steele (Tenn.) 63 S. W. 1126; Whedon v. Knight, 112 Ga. 639; San
Antonio Traction Co. v. White (Tex.) 61 S. W. 706; State v. Young,
9 N. D. 165, 82 N. W. 420; Louisville & N. R. Co. v. Sullivan Tim-
ber Co., 126 Ala. 95; Arnold v. Burgdorf, 85 111. App. 537; Balm-
ford V. Pefter, 31 Misc. Rep. 715, 65 N. Y. Supp. 271; Rhyner v.
City of Menasha, 107 Wis. 201, 83 N. W. 303.
■ 222 Chicago North Shore St. Ry. Co. v. Hebson, 93 HI. App. 98.
An erroneous instruction putting the burden of proof as to a
particular defense upon the defendant in a criminal case is not
cured by a general charge upon the burden of proof and the doc-
trine of reasonable doubt. State v. Grinstead (Kan. App.) 61 Pac.
975; People v. Shanley, 49 App. Div. (N. Y.) 56. Contra, State v.
Freeman, 100 N. C. 429.
22s Montgomery v. Knox, 23 Fla. 595; Walker v. Heller, 73 Ind
(913)
fS— Ins. to Juries.
§ 391 INSTRUCTIONS TO JURIES. [Ch. 32
So, mere ambiguity, uncertainty, or a misleading tendency
may be thus cured. -^* Verbal inaccuracies, obscurity, and
46; Jones v. State, 49 Ind. 549; Binns v. State, 66 Ind. 428; Achey
V. State, 64 Ind. 56; Western Union Telegraph Co. v. Buskirk, 107
400; Smurr v. State, 88 Ind. 504, 507; Lake Erie & W. R. Co. v.
Carson, 4 Ind. App. 185, 189; Keech v. Bnriquez, 28 Fla. 597, 10
So. 91; Doherty v. Morris, 17 Colo. 105; Mendenhall v. Stewart,
18 Ind. App. 262; Hickenbottom v. Delaware, L. & W. R. Co., 122
N. Y. 91, 25 N. E. 279; Barringer v. Burns, 108 N. C. 606, 13 S. E.
142; People v. Wallace, 109 Cal. 611, 42 Pac. 159; Smith v. State
(Tex. App.) 3 S. W. 684; Johnson v. State, 81 Ala. 54; State v.
Calkins, 73 Iowa, 128; Shlvely v. Cedar Rapids, I. F. & N. "W. Ry.
Co., 74 Iowa, 169; De Goey v. Van Wyk, 97 Iowa, 491; Wright v.
Nipple, 92 Ind. 310, 315; Western Union Telegraph Co. v. Young,
93 Ind. 118, 120; Young v. Clegg, 93 Ind. 371, 375; Stockwell v.
Brant, 97 Ind. 474, 477; Louisville. N. A. & C. Ry. Co. v. Grantham,
Ind. 549, 552; Chicago, St. L. & P. R. Co. v. Spilker, 134 Ind. 380,
104 Ind. 353, 358; Evansville & T. H. R. Co. v. Talbot, 131 Ind. 221,
224; Pittsburgh, C, C. & St. L. Ry. Co. v. Noftsger, 26 Ind. App.
614; State v. Savage, 36 Or. 191; Hearne v. De Young, 132 Cal.
357; Maxon v. Clark. 24 Ind. App. 620; Parsons v. State (Neb.)
85 N. W. 65; Cook v. State (Miss.) 28 So. 833.
22< Pitzpatrick v. State, 37 Ark. 238 ; Burton v. Merrick, 21 Ark.
357; Doty v. O'Neil. 95 Cal. 244; Livermore v. Stlne, 43 Cal. 274;
People V. Turcott, 65 Cal. 126; People v. Chun Heong, 86 Cal. 329;
People V. Hunt, 59 Cal. 430; Gray v. State (Fla.) 28 So. 53; Cleve-
land, C, C. & St. L. Ry. Co. v. Keenan, 190 III. 217, 60 N. E. 107;
Tedens v. Sanitary Dist. of Chicago, 149 111. 87; Illinois Cent. R.
Co. V. Swearingen, 47 111. 206; Milling v. Hillenbrand, 156 111. 310;
Cleveland. C, C. & I. Ry. Co. v. Bates, 91 Ind. 289, 290; Riegelman
V. Todd. 77 Iowa, 696; State v. McLafferty, 47 Kan. 140; Gillett v.
Corum, 7 Kan. 156; Clark v. Pox, 9 Dana (Ky.) 195; Kennard v.
State (Pla.) 28 So. 858; Milligan v. Chicago, B. & Q. R. Co., 79 Mo.
App. 393, 2 Mo. App. Rep'r. 459; Meyer v. Southern Ry. Co. (Mo.)
36 S. W. 367; McGrew v. Missouri Pac. Ry. Co., 109 Mo. 582; Sut-
tie v. Aloe, 39 Mo. App. 38; McNichols v. Nslson, 45 Mo. App. 446;
Goetz V. Hannibal & St. J. R. Co., 50 Mo. 472; Noble v. Bessemer
0. S. Co. (Mich.) 86 N. W. 520, 8 Detroit Leg. N. 244; Hart v.
Walker, 100 Mich. 406; Wreggltt v. Barnett, 99 Mich. 477; People
v. Ricketts, 108 Mich. 584; Fisher v. People, 20 Mich. 135; Simp-
son V. Krumdlck, 28 Minn. 352; Omaha Fair & Exposition Ass'n
(914)
Ch. 32J REVIEW ON APPEAL. § 3^1
loose expressions in an instruction may be cured by otber in-
structions.^^* But the giving of an instruction announcing
an erroneous rule of law is not cured by another instruction,
containing a correct statement of the rule.^*® A positively
V. Missouri Pac. Ry. Co., 42 Neb. 105, 60 N. W. 330; Bingham v.
Hartley, 44 Neb. 682, 62 N. W. 1089; State v. Ah Mook, 12 Nev. 369;
Marcom V. Raleigh & A. A. L. R. Co., 126 N. C. 200, 32 S, E. 423;
Bell V. Martin (Tex. Civ. App.) 28 S. W. 108; Schmieg v. Wold, 1
Wash. T. 472; State v. Rosener, 8 Wash. 42, 35 Pac. 357; West v.
Milwaukee, L. S. & W. Ry. Co., 56 Wis. 318.
220 Wilson V. Southern Pac. R. Co., 62 Cal. 164; Stout v. State, 90
Ind. 1, 14; Brown v. State, 105 Ind. 385, 391; Siebert v. State, 95
Ind. 471; Johnson v. Johnson, 156 Ind. 592; Louisville, N. A. & C.
Ry. Co. V. Jones, 108 Ind. 551; Cline v. Lindsey, 110 Ind. 337;
Lonisville, N. A. & C. Ry. Co. v. Wright, 115 Ind. 378; Harger -v.
SpoffoTd, 46 Iowa, 11; Rogers v. Marshal, 1 Wall. (U. S.) 644; Hill
V. Pinigan, 77 Cal. 267; Bingham v. Hartley, 44 Neb. 682; Pitts-
burgh, C. & St. L. R. Co. V. Noel, 77 Ind. 110.
2« Schleffelin v. Schieffelin (Ala.) 28 So. 687; Mackey v. People,
2 Colo. 13; Toledo, W. & W. Ry. Co. v. Shuckman, 50 Ind. 42; Mur-
ray V. Coin., 79 Pa. 311; Rice v. Clin, 79 Pa. 391; People v. Marshall,
112 Cal. 422; Sappenfleld v. Main St. & A. P. R. Co., 91 Cal. 48;
People V. Wong Ah Ngow, 54 Cal. 151; Boswell v. District of Co-
lumbia, 21 D. C. 526; Camp Point Mfg. Co. v. Ballow, 71 111. 417;
Ottawa, 0. & P. R. V. R. Co. v. MoMath, 4 111. App. 356; Gedney v.
Gedney, 61 111. App. 511; Quinn v. Donovan, 35 111. 194; Wabash R.
Co. V. Henks, 91 111. 406; Illinois Linen Co. v. Hough, 91 111. 63;
City of Joliet v. Walker, 7 111. App. 267; Steinmeyer v. People, 95
111. 383; Sweet v. Leach, 6 111. App. 212; Gale v. Rector, 5 111. App.
481; Shugart v. Halliday, 2 111. App. 45; McCrory v. Anderson, 103
Ind. 12, 16; Plummer v. State, 135 Ind. 308; Achey v. State, 64 Ind.
56; Guetig v. State, 63 Ind. 278; Binns v. State, 66 Ind. 428; Uhl
V. Bingaman, 78 Ind. 365, 368; Hudelson v. State, 94 Ind. 426; Horns
v. State, 1 Kan. 42; State v. Jones, 36 La. Ann. 204; Baer v. Lis-
man, 85 Mo. App. 317; Singer Mfg. Co. v. Hudson, 4 Mo. App. 145;
State V. Laurie, 1 Mo. App. 371; McBeth v. Craddock, 28 Mo. App.
380; Billups v. Daggs,'38 Mo. App. 367; Hickaur v. GrifHn, 6 Mo.
37; State v. McNally, 87 Mo. 644; Glascock v. Chicago & A. R. Co.,
69 Mo. 589; Gorstz v. Pinske, 82 Minn. 456; Jensen v. Halstead
(Neb.) 85 N. W. 78; Wasson v. Palmer, 13 Neb. 376; Swift & Co.
V. Holoubek (Neb.) 84 N. W. 249; Carson v. Stevens, 40 Neb. 112;
(915)
§ 391 INSTRUCTIONS TO JURIES. [Ch. 32
erroneous instruction is not cured by another correct, but
contradictory, instruction. In such a case it could not be
told which instruction the jury followed,, and, considered as
a whole, the instructions are necessarily confusing and mis-
leading to the jury; but if correct as a whole, and not con-
tradictory, error in part of the instructions is not ground for
reversal.^^' 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 er-
roneous instruction, and substitute therefor the correct in-
Barr v. State, 45 Neb. 458; Richardson v. Halstead, 44 Neb. 606;
Clay's Heirs r. Miller, 3 T. B. Mon. (Ky.) 146; Imboff v. Chicago
& M. Ry. Co., 20 Wis. 344; Bruce v. Koch (Tex.) 59 S. W. 540;
Mersbon v. Bosley (Tex. Civ. App.) 62 S. W. 799; Miller v. Ver-
murie, 7 Wash. 386, 34 Pac. 108. Whatever is vicious or vaguely
■worded is not cured by other instructions except In very plain
cases, — ones entirely free from doubt. Quirk v. St. Louis United
Elevator Co., 126 Mo. 279.
22' St. Louis S. W. Ry. Co. v. Jagerman, 59 Ark. 98; People v.
Thomson, 92 Cal. 506; People v. Ettlng, 99 Cal. 577; People v. Doy-
ell, 48 Cal. 85; Davis v. Button, 78 Cal. 247; Cbidester v. Consoli-
dated People's Ditch Co., 53 Cal. 56; People v. Anderson, 44 Cal.
65; Doty v. O'Neil, 95 Cal. 244; Boswell v. District of Columbia,
21 D. C. 526; Cook v. Woodruff, 97 Ind. 134, 140; Blanchard v.
Jones, 101 Ind. 542, 550; Story v. State, S9 Ind. 413; Illinois Linen
Co. V. Hough, 91 111. 63; Cumins v. Leighton, 9 111. App. 186; Quinn
V. Donovan, 85 111. 194; Clay's Heirs v. Miller, 3 T. B. Mon. (Ky.)
149; Baer, Seasongood & Co. v. Lisman, 85 Mo. App. 317; State v.
Brumley, 53 Mo. App. 126; Muehlhausen v. Railroad Co., 91 Mo. App.
332; Burlington First Nat. Bank v. Hatch, 98 Mo. 376; Swan v.
Lullman, 12 Mo. App. 584; Roos v. Clark, 14 Mo. App. 594; Whalen
V. St. Louis, K. C. & N. Ry. Co., 60 Mo. 323; Goetz v. Hannibal &
St. J. R. Co., 50 Mo. 472; Skates v. State, 64 Miss. 644; Sterling v.
Callahan, 94 Mich. 536; Gates v. Manny, 14 Minn. 21 (Gil. 13);
Richardson v. Halstead, 44 Neb. 606; Wasson v. Palmer, 13 Neb.
876; Rice v. Com., 100 Pa. 32; Missouri, K. & T. Ry. Co. of Texas
V. Rodgers, 89 Tex. 675; Baker v. Ashe, 80 Tex. 356; Galveston,
H. & S. A. Ry. Co. v. Daniels, 1 Tex. Civ. App. 695; Kankakee Stone
(916)
Ch. 32] REVIEW ON APPEAL. § 391
struction.^^' If the erroneous instruction is not withdrawn,
it will be presumed that the jury followed the erroneous in-
struction, and that injury resulted, unless it affirmatively ap-
pears that no injury resulted.^^® It is always competent for
the -judge t& withdraw an improper instruction, and substi-
tute therefor a correct instruction, and, if this is done, the
error is cured.^^" The express retraction of improper re-
ft Lime Ce. v. City ef Kankakee, 128 111. 173, 20 N. E. 670; Par-
dridge v. Cutler, 168 111. 504, 48 N. E. 125.
2S8 Clay's Heirs v. Miller, 3 T. B. Mon. (Ky.) 149; Howard v.
State, 50 lad. 190; Glascock v. Chicago & A. R. Co., 69 Mo. 589;
Imhoff V. Chicago & M. Ry. Co., 20 Wis. 344; Uhl v. Bingaman, 78
Ind. 365; State v. Jones, 36 La. Ann. 204; Bradley v. State, 31 Ind.
492; Guetig v. State, 63 Ind. 278; Torr v. Torr, 20 Ind. 118; Plum-
mer v. State, 135 Ind. 308; McCrory t. Anderson, 103 Ind. 12, 16;
McKelvey v. Chesapeake £ 0. Ry. Co., 35 W. Va. 500; Chapman v.
Brie Ry. Co., 55 N. Y. 579; Sommer v. Gilmore, 168 Pa. 117; Meyer
V. Clark, 45 N. Y. 285; Missouri, K. & T. Ry. Co. of Texas v. Rodgers,
89 Tex. 675; Swift & Co. v. Holoubek, 60 Neb. 784; Terre Haute &
I. R. Co. V. Pruitt, 25 Ind. App. 227; Willard v. Press Pub. Co.,
52 App. Div. 448, 65 N. Y. Supp. 73; Eggett v. Allen, 106 Wis. 633.
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, reversing 2 Daly, 497. It is error,
in a criminal case for the court to place before the jury the prob-
able result of a verdict of guilty, and this, though the mistake bo
explicitly rectified. Com. v. Switzer, 134 Pa. 383, 26 Wkly. Notes
Cas. 46.
229 Grand Rapids & I. R. Co. v. Monroe, 47 Mich. 152; btate v.
Ferguson, 9 Nev. 106. But a verdict rendered according to the
correct instruction will be sustained. Avery v. New York Cent. &
Hudson River R. Co., 26 N. Y. St. Rep. 279, 7 N. Y. Supp. 341.
2S0 State V. May, 15 N. C. 328 ; Sharp v. Kinsman, 18 S. C. 113 ;
Zent (T. Watts, 1 N. Y. Supp. 702; Green v. State, 97 Tenn. 50;
Yoakum v. Mettasch (Tex. Civ. App.) 26 S. W. 129; State v. Wells,
54 Kan. 181; Sargeant v. Martin, 133 Pa. 122; Pollock v. Brooklyn
& C. T. R. Co., 15 N. Y. Supp. 189; Bradstreet v. Rich, 74 Me. 303;
City Trust, Safe-Deposit & Surety Co. v. Fidelity & Casualty Co.,
58 App. Biv. 18, 68 N. Y. Supp. 601; McMahon v. New York News
Pub. Co., 51 App. Div. (N. Y.) 488; Desmond-Dunne Co. v. Fried
Buui-Doscher Co.. 162 N. Y. 486. Where, upon failure of th«s jury
(917)
§ 391 INSTRUCTIONS TO JURIES. [Ch. 32
marks cures the error unless it appears affirmatively that the
retraction was not accepted by the jury.^^^
Under the rule that a party is not entitled to have even
a correct request given in the precise language of the re-
quest,^^^ 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.^^^ And it is immaterial at whose instance
the subsequent instruction was given.^^* Of course, the in-
struction given must be the substantial equivalent of the in-
struction refused. ^'^ Failure to charge upon a particular
subject is cured by subsequently giving an instruction fully
covering the ground.^^* In general, correct abstract instruc-
tion will not cure the error in failing to give a concrete in-
struction on the same subject, applying the law to the facts
of the case.^^'^
to agree, the special instructions given them are recalled, and, be-
ing charged to find for the defendant, they return a verdict ac-
cordingly, the special instructions are superseded, 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.
231 Brooks V. Rochester Ry. Co., 10 Misc. Rep. (N. Y.) 88; State
T. McNalr, 93 N. C. 628; Reinhold v. State, 130 Ind. 467.
232 See ante, § 153, "Duty to Follow Language of Request."
23S State V. La Grange, 94 Iowa, 60; State v. Murphy, 13 Wash.
229, 43 Pac. 44; Brown v. McCord & Bradfield Furniture Co., 65
Mich. 360; State v. Wilson, 2 Scam. (111.) 225; Grand Rapids & I.
R. Go. V. Cameron, 45 Mich. 451; Davis v. Perley, 30 Cal. 630; Man-
ning v. Dallas, 73 Cal. 420; Marsh v. Cramer, 16 Colo. 331; People
V. Fanshawe, 65 Hun, 77, 19 N. Y. Supp. 865; Hockmore v. State,
93 Ga. 123; Parker v. Stafford, 61 Hun, 623, 16 N. Y. 756; Hipes v.
State, 73 Ind. 39; Saunders v. Whitoomb, 177 Mass. 457. But see
People V. Ramirez, 13 Cal. 173.
284 Herhold v. City of Chicago, 108 111. 467.
285 Davis V. Moore, 22 Ky. Law Rep. 261, 56 S. W. 991.
286 Lane v. State (Tex. Cr. App.) 55 S. W. 831; Postal Telegraph
Cable Co. v. Douglass, 96 Ga. 816, 22 S. E. 930; Lowriraore v.
Palmer Mfg. Co., 60 S. C. 153, 38 S. B. 430; State v. Lee, 58 S. C.
335, 36 S. E. 706; Wells v. Houston, 26 Tex. Civ. App. 629; Camden
& Rockland Water Co. v. Ingraham, 85 Me. 179, 27 Atl. 94.
237 Gorstz V. Pinske, 82 Minn. 456.
(918^
TABLE OF CASES.
[BEFEBENCES ABE TO PAGES.]
A.
A. J. Anderson Electric Co. v. Cle-
burne Water, Ice & Lighting Co.,
151 253 254.
Abbott V.' Striblen, 379, 390, 394,
816.
Abernathy v. Southern Rock Island
Plow Co., 184.
Abingdon v. Meadows, 848.
Able V. Lee, 908.
Abraham v. Nunn, 304.
V. Wilklns, 912.
Abrahams v. Kelly, 301, 314, 328.
Abrams v. Foshee, 853.
V. Smith, 387, 856.
Abrams' Lessee v. Will, 90.
Achey v. State, 738, 914, 915.
Ackart v. Lansing, 804.
Acker v. Ledyard, 823.
V. State, 672, 674.
Ackerson v. People, 632.
Acklen's Ex'r v. Hickman, 767.
Adams v. Betz, 20. ^
V. Capron, 171, 176, 227.
V. Crenshaw, 303.
V. Inhabitants of Chicopee,
822.
V. Macfarlane, 877.
T. People, 681.
V. Reeves, 159.
V. Roberts, 7, 64, 232.
V. Smith, 177-179.
V. State, 43, 99, 151, 298, 317,
342, 343, 514, 638, 699,
808, 823, 887.
v.- Thornton, 154.
V. Stringer, 295, 298, 796, 797.
Addlngton v. Btherldge, 18.
Addison v. State, 551.
Adkins V. Hutchings, 450.
Adkins v. State, 259.
Advertiser & Tribune Co. v. City
of Detroit, 316.
Aerheart v. St. Louis, I. M. & S.
Ry. Co., 89, 90, 428.
Aetna Ins. Co. v. Reed, 159, 208.
Aetna Life Ins. Co. v. Ward, 89,
531, 537.
Aguirre v. Alexander, 169, 200.
Ahearn v. Mann, 428, 455.
Ahrens v. Cobb, 5, 14.
Aikin v. Weckerly, 150, 152, 153.
Aitkin's Heirs v. Young, 470.
Alabama Fertilizer Co. v. Reyn-
olds, 600.
Alabama Gold Life Ins. Co. v. Mo-
bile Mut. Ins. Co., 12.
Alabama G. S. R. Co. v. Hawk, 20.
V. Hill, 531, 902.
V. Richie, 154.
V. Sellers, 247.
V. Tapia, 802.
Alabama Lumber Co. v. Keel, 363.
Alamo Fire Ins. Co. v. Schmitt,
885.
Albert v. Besel, 5.
Albertson v. Keokuk & D. M. R.
Co., 903, 908.
Alberty v. United States, 248.
Albin v. State, 621.
Albritton v. State, 631, 638, 698.
Albrosky v. Iowa City, 365.
Alden v. City of Minneapolis, 84.
Alderpian v. State, 696.
Alderson v. Marshall, 819.
V. State, 746, 830.
Aldrich v. Wright, 93.
Aldrige v. State, 361, 376.
Alexander v. Alexander, 886.
V. Blodgett, 170.
V. Com., 909.
920
TABLE OF CASES.
[BEFEBENCES ABE TO PAGES.]
Alexander v. Cunningham, 11.
V. Gardiner, 415, 428.
V. Harrison, 10.
V. Mandeville, 385, 386.
V. Pennsylvania Co., 26.
V. Richmond & D. R. Co., 393.
Allen V. Aldrich, 426, 428, 432.
V. Burlington, C. R. & N. R.
Co., 911.
V. Duffle, 901.
V. Hamilton, 198.
V. Kirk, 528.
V. Perry, 328, 337.
V. Rundle, 198, 262, 265.
V. State, 486, 487, 507, 673,
862.
V. United States, 884.
V. Wheeler, 10.
V. Woodson, 454, 455.
AUis V. Leonard, 89, 796.
V. United States, 137, 138, 415,
422, 424, 811.
Allison V. Hagan, 300, 396, 909.
V. Jack, 835.
V. United States, 226, 504.
AUman v. Lumsden, 447.
AUmendinger v. McHie, 63.
Allston V. Pickett, 206.
Allyn V. Boston & A. R. Co., 11.
Alston V. Grantham, 297, 844.
Althorf V. Wolfe, 89.
Altschuler v. Coburn, 766.
Amaker v. New, 864, 866.
Amer v. Longstreth, 347, 390, 391.
American Bible Soc. v. Price, 155,
227.
American Bldg. & Loan Ass'n v.
Mordock, 807.
Amerioan Cent. Ins. Co. v. Roth-
child, 768.
American Exchange Bank v. In-
loes, 18.
American Ins. Co. v. Butler, 16, 17.
V. Crawford, 6, 151.
American Merchants' Union Exp.
Co. T. Phillips, 390, 392.
American Oak Extract Co. v. Ryan,
87, 142, 175.
Ames V. Cannon River Mfg. Co.,
89, 98.
V. Quimby, 855, 885.
V. Stachurski, 298.
Amlck V. O'Hara, 837, 896.
Amis V. Cameron. 600, 603.
Amos V. Amos, 292.
V. Buck, 887.
V. Sinnott, 849, 857.
Anchor Milling Co. v. Walsh, 196.
Ancrum v. Wehmann, 302.
Anderson v. Anderson, 903.
V. Avis, 97.
V. Baird, 763.
V. Barksdale, 531.
V. Canter, 240, 249, 365.
V. City of Bath, 354, 359, 362,
380.
V. Croix Lumber Co., 806.
V-. Fitzgerald, 833.
V. Lake Shore & M. S. Ry. Co.,
332.
V. McAleenan, 406.
V. Matlndale, 119.
V. Norvili, 235.
V. Oscamp, 162.
V. Parker, 328, 335.
V. Roberts, 188, 194.
V. State, 57, 152, 262-264, 488,
518,620,655,656,755,802.
V. Territory, 366.
V. Thunder Bay River Boom
Co., 895.
V. Tribble, 411, 473.
V. Union Terminal R. Co., 365,
876, 912.
V. Walter, 903, 910.
Andre v. Johnson, 883.
Andrea v. Thatcher, 383, 387.
Andreas v. Ketcham, 125, 126.
Andrews v. Andrews, 195.
V. Broughton, 64.
v. Marshall, 200.
V. Parker, 115.
V. Runyon, 179.
V. Smithwick, 208.
V. State, 521, 860.
V. Tedford, 17, 18.
V. Tucker, 154, 157.
Aneals v. People, 640, 886.
Angell V. Rosenburg, 887.
Angler v. Eaton, C. & B. Co., 10.
Ann Berta Lodge v. Leverton, 468.
Anniston City Land Co. v. Ed-
mondson,, 105, 882.
Anniston Lime & Coal Co. v.
Lewis, 226.
Anson v. Evans, 784.
Anthony v. Louisville & N. R. Co.,
I 823.
TABLE OF CASES.
921
[eefeeestces ake to pages.]
Anthony v. Stlnson, 531, 536.
Appeal of Livingston, 379 .
Arbuckle v. Tliompson, 382.
Arcade Go. v. Alien, 266.
Archer v. Sinclair, 160, 291, 390.
Archibald v. State, 831.
Arctic Fire Ins. Co. v. Austin, 17.
Arey t. Stephenson, 295, 300.
Argabright v. State, 239, 558.
Arismendis v. State, 620.
Arizona Territory v. Kennedy, 281.
Arkadelphia Lumber Co. v. Asman,
151.
Arkansas River Packet Co. v.
Hobbs, 367.
Armour v. BTazeau, 187.
V. Pecker, 822.
Armstrong v. Chicago, St. P. & K.
C. Ry. Co., 19.
V. Klllen, 852.
V. Mock, 829.
V. Plerson, 822.
V. State, 600, 602.
V. Tait, 879.
V. Toler, 295, 303.
Arneson v. Spawn, 66.
V. Thorstad, 806.
Arnold v. Burgdorf, 913.
V. Com., 687.
V. Phillips, 417, 418.
V. State, 485.
Arnstein v. Haulenbeek, 143, 800.
Arthur v. Grlswold, 464.
Arthurs v. Bascom, 301.
Asbill V. Asbill, 302.
Ashby V. West, 856.
Ashley v. Hendee, 228.
Ashlock V. Linder, 726.
Ashmead v. Wilson, 63.
Ashtabula, etc., Co. v. Dagenbach,
382.
Ashworth v. Bast Tennessee, V. &
G. Ry. Co., 209.
V. State, 324, 837.
Astley V. Capron, 84.
Aston V. Cralgmiles, 142.
V. State, 122, 367.
Aszman v. State, 678, 729, 730.
Atchison v. State, 131, 142.
Atchison, T. & S. F. R. Co. v. Cal-
vert, 148.
V. Click, 209, 802.
v. Cuniffe, 87, 219, 222.
V. English, 901.
Atchison, T. & S. F. R. Co. v. Fee-
han, 570, 798.
V. Franklin, 286, 332, 335.
V. Frazier, 331.
V. Howard, 90, 848, 855.
V. Huitt, 897.
V. Love, 889, 890.
V. Miller, 190.
V. Retford, 238, 819.
V. Thul, 531, 532.
V. Wells, 196.
V. Worley, 800.
Atchison & N. R. Co. v. Jones, 227.
Atkins V. Gladwish, 206, 556, 557.
V. Paul, 891.
V. Swope, 821.
Atkinson v. Blair, 10.
V. Dailey,'878, 906.
V. Catcher, 205.
V. Goodrich Transp. Co., 899.
V. Lester, 212.
V. Snow, 339, 340.
V. State, 194, 569, 572.
Atlanta Machine Works v. Pope,
349.
Atlanta & W. P. R. Co. v. Newton,
571.
Atlas Nat. Bank v. Holm, 184.
Attorney General v. Good, 89.
Au Y. New York, L. B. & W. R. Co.,
569, 572, 573.
Auburn Bolt & Nut Works v.
Shultz, 66.
Audis V. Personett, 878.
Audleur v. Kuffel, 856.
Augusta Insurance & Banking Co.
V. Abbott, 345.
Augusta Mfg. Co. v. Vertrees, 727,
728.
Auld V. Kimberlain, 839.
Ault V. Sloan, 298.
Aurora Fire Ins. Co. v. Johnson,
856.
Austin V. French, 19.
V. Moe, 188, 303, 315.
V. Talk, 208.
Austin Rapid Transit Ry. Co. v.
Grothe, 886, 890.
Austin & N. W. Ry. Co. v. Beatty,
72.
Averett v. Brady, 297,
Avery v. House, 390, 399.
V. Moore, 894, 898.
V. New York Cent. & H. R. R.
Co.. 297, 917.
922
TABLE OF CASES.
[EEFERENCES ABE TO PAGES.J
Avery v. State, 651, 691, 762.
Awank v. Phillips, 353.
Axtell V. Caldwell, 213.
Ayers v. Watson, 227, 382.
Ayres v. Moulton, 13, 107, 131.
V. State, 620.
B.
B. C. Evans Co. v. Reeves, 897.
Babb V. Ellis, 784.
Babbitt v. Bumpus, 359, 380, 385.
Bacchus V. State, 193.
Bach V. Cook, 855.
Bacon v. Green, 363.
Badger v. Bank of Cumberland,
315.
Baer v. Rooks, 260.
V. Lisman, 915, 916.
Bagley v. Bowe, 12.
V. Smith, 338.
Bailey v. Anderson, 828.
V. Clark, 857.
v. Dodge, 824.
V. Ogden, 297.
v. Poole, 131, 138, 326.
V. State, 196, 200, 220, 222.
Bain v. Doran, 301.
V. State, 668.
V. Wilson, 391.
Baines v. Ullmann, 108.
Baird v. Schuylkill R. E. S. R. Co.,
11.
V. Trimble's Lessee, 360.
Baker v. Ashe, 167-169, 177, 904,
916.
V. Chatfleld, 7, 99, 340, 828.
V. Hornick, 211.
V. Kelly, 530.
V McGinniss, 816.
V. Pendergast, 804.
V. State, 13, 339, 358, 383, 384,
401, 672, 743, 746, 828,
895.
Baldez v. State, 706.
Baldwin v. Bank of Massilon, 864,
866.
V. Blanchard, 816.
V. Bornheimer, 851.
V. Boulware, 365.
V. State, 158, 212, 749.
V. Taylor, 450.
V. Walker, 188.
Ball V. City of Independence, 891.
Ball V. Cox, 856,
V. Hardesty, 532, 534.
Ballance v. Leonard, 842.
Ballard v. State, 167, 169.
Ballew v. State, 183, 493.
Ballou V. Andrews Banking Co.,
876, 905.
V. Young, 909.
Balmford v. Peffer, 913.
Balohradsky v. Carlisle, 773.
Balph V. Liberty, 596.
Baltimore C. Ry. Co. v. State, 64,
71.
Baltimore & O. R. Co. v. Boyd,
160, 161.
v. Countryman, 891, 892.
V. Few's Ex'rs, 197.
V. Lafferty, 151, 162, 163, 383,
386.
V. McKenzie, 867, 880.
V. Polly, 348, 360.
v. Resley, 14, 17, 18, 70, 339.
345, 368, 806, 853, 871.
V. Schultz, 338.
V. Shipley, 806.
V. Skeels, 175,- 890.
V. Thompson, 159.
V. Worthington, 380.
V. Rowan, 857.
Baltimore & P. R. Co. v. Mackey,
823, 874.
Baltimore & R. Turnpike Road v.
State, 365.
Baltimore & S. R. Co. v. Woodruff,
68.
Baltzer v. Chicago, M. & N. R. Co.,
217.
Banbury v. Sherin, 813.
Bank v. Barry, 26, 27.
Bank of Huntington v. Napier,
898.
Bank of Kentucky v. McWilliams,
418.
Bank of Metropolis v. New Eng-
land Bank, 170.
Bank of Monroe v. Anderson Bros.
Min. & Ry. Co., 195.
Bank of United States v. Johnson,
468.
Bankers' Life Ass'n v. Lisco, 822.
Banks v. Hoyt, 831, 832.
V. State, 142, 291, 377, 700, 701.
Banner v. Schlessinger, 239, 241.
Banner Distilling Co. v. Dieter, 232.
TABLE OF CABB8.
923
[bbferences abb to fagbb.]
Banning v. Chicago, R. I. ft P.
Ry. Co.. 195.
Bannister t. Rea, 389.
V. Read, 393.
Barada y. Blumenttial, 227.
Barbee v. Hail, 892.
V. State, 320, 323.
Barber v. Roseboro, S20.
V. State, 498, 8X6.
Bard v. Blston, S22, 843.
Bardwell v. Zeigler, 102, 106.
Barker v. Blount, 885.
V. Com., 735.
T. Cunard Steamship Co., 824.
V. State, 130, 154, 167. 238, 23S,
238, 672, 673.
V. Todd, 826, 827.
Barkman v. State, 279, 354.
Barlew v. Emmert, 806.
V. Thompson, 840.
Barlow Bros. Co. v. Parsons, 784.
Barmby t. Wolfe, 510.
Barnard v. Com., 506.
Barnes v. City of Mobile, 27.
V. Mobley, 839.
V. State, 337.
Barnett v. Com., 557, 865.
V. State, 298, 315, 567. 876, 891,
903.
Barnewall v. Murrell. 802, 826.
Barney v. Scherling, 827, 828.
Barr v. Armstrong, 84.
V. City of Omaha, 295, 307.
V. State, 916.
Barrara v. State, 489, 494.
Barrelle v. Pennsylvania Ry. Co.,
556.
Barrett v. City of Bangor, 895.
V. Delano, 306.
V. McCrummen, 167.
Barringer v. Burns, 910, 914.
Barrow v. State, 697.
Bartelott v. International Bank, 10,
12.
Earth v. Rosenfeld, 450.
Bartle v. City of Des Moines, 821.
Bartlett v. Board of Education of
Freeport School Dist.,
305.
V. Hawley, 390.
Bartley v. McKinney, 197.
V. State, 680, 687.
V. Williams, 175.
Bartling v. Behrends, 175, 908.
Barton r. Foreyth, 830.
V. arny, 28, 29, 292.
V. State, 780.
V. Stroud-Gibson Grocer Co.,
191, 106.
Bass T. State, 833.
Bassett V. Inmau, 878.
V. Salisbury Mfg. Co., 426, 428.
Bates T. Ball, 266, 2SS.
y. Benninger, 153, 154.
V. Kumey'B Estate, 365.
Batre y. State, 43.
Batten y. State, 298.
Battersby v. Abbott, 99.
Battershall v. Stephens, 21.
Battles V. Tallman, 195, 77«.
Baucnwitz v. Tyman, 778.
Baugher v. Wilkins, 872.
Bauskett v. Keitt, 820, 904.
Baxter v. People, 3.
V. Waite, 912.
Bayne y. State, 907.
Beach y. Netherland, 198.
T. State, 489.
Beal V. Lowell & D. St. Ry. Co.,
411.
Beale v. Hall, 228.
Beall V. Beall, 450.
V. Pearre, 236.
Heals V. Cone, 146, 814.
Beaman v. Martha Washingtor,
Min, Co., 197, 814, 824.
Bean v. Blinker, 188.
V. Green, 847, 848.
Beard v. Sloan, 386.
V. State, 48, 51-53.
Beasley v. State, 577.
Beason v. State, 698.
Beatty y. Brummett, 350.
Beaty v. Baltimore & O. R. Co.,
888.
Beaumont Pasture Co. y. Cleve-
land, 20.
Beaver v. Sandham, 301.
V. Taylor, 341, 810, 823, 825,
Beavers v. Missouri Pac. R. Co.,
878
v. State, 195, 631.
Beazan v. Town of Mason City,
903. ,
Beazley v. Denson, 302.
Beck V. Cole, 465.
V. State, 155.
Becker v. Becker, 468.
924
TABLE OP CASES.
[EEFEEENOBS ABE TO PAGES.]
Beckman v. Consolidation Coal Co.,
10.
V. McKay, 851.
Becknell v. Becknell, 847.
Bedford v. Penny, 340, 345.
Bediges v. Vick, 302.
Beebe v. Koshnlc, 28.
V. Stutsman, 217.
Beecher v. Galvln, 453.
V. Venn, 80.
Beeks v. Odom, 302.
Beeman v. Black, 465.
Beems v. Chicago, R. I. & P. R.
Co., 223.
Beers v. Housatonuc R. Co., 238,
244, 726.
Begg V. Begg, 9.
Behrnes v. Behrnes, 820.
Beidler v. Fish, 6.
Bejarano v. State, 200.
Belcher v. Prittie, 89, 90, 95.
Belden v. Gray, 884.
V. Woodmansee, 173.
Belknap v. Wendell, 882.
Bell V. Hannibal & St. J. R. Co.,
199.
V. Hutchings, 239, 242.
V. Keepers, 14.
V. Kendall, 821.
V.' Martin, 915.
V. North, 332, 359.
V. Pearcy, 739.
V. Sheridan, 816.
V. State, 194, 320, 367, 848.
Bell's Adm'r v. Troy, 383, 384, 391,
392.
Bellas V. Hays, 359.
Bellefontaine Ry. Co. v. Snyder, 85.
Beller v. State, 856.
Bellew V. Ahrburg, 130, 143, 883.
Bellinger v. State, 349, 861.
Bellows V. Litchfield, 798.
Belmont Church v. Devine, 359.
Belote V. State, 741, 886.
Belt V. Goode, 28, 29, 159.
V. Marriott, 25.
Bemus v. Howard, 359.
Benavidea v. State, ,415, 434, 435,
617, 619, 626.
Bender v. Dungan, 184, 185.
V. Peyton, 837, 898.
Benedict v. Everard, 95, 877.
V. Johnson, 803.
V. Rose, 132.
Benedict v. State, 90.
Benjamin v. Metropolitan St. Ry.
Co., 210.
Bennett v. Connelly, 359.
V. Covington, 10.
V. McDonald, 198.
V. State, 620.
Benson v. Atwood, 891.
V. Benson, 15.
V. Boteler, 7.
V. Clark, 427.
V. Lundy, 811, 812.
V. Maxwell, 868.
V. State, 328, 332, 365.
Benton v. Chicago, R. I. & P. R.
Co., 188.
V. City of Milwaukee, 855.
Y. State, 441.
Bergh v. Sloan, 800.
Berkshire Woolen Co. v. Proctor, 9.
Bernard v. Richmond, P. & P. R.
Co., 888.
Bernhard v. State, 364, 488, 521.
V. Washington Life .Ins. Co.,
188.
Bernheim v. Shannon, 307.
Bernstein v. Humes, 14, 210, 819.
V. Smith, 372.
Berrenberg v. City of Boston, 843.
Berry v. Billings, 253, 254.
V. Donley, 302.
V. Hardman, 886.
V. Missouri Pac. Ry. Co., 210.
V. Savage, 11.
V. Smith, 808.
V. State, 808, 823, 879.
V. Texas & N. O. Ry. Co., 292.
V. Wilson, 257.
Berryman v. Schumaker, 313.
Bertody v. Ison, 297, 542.
Bertram v. People's Ry. Co., 69, 85,
241, 242.
Berzevizy v. Delaware, L. & W. R.
Co., 507.
Best V. State, 687.
V. Wilson, 285.
Bethea v. Raleigh & A. R. Co., 381.
Betts V. Prancis, 9.
Beugnot v. State, 906.
Beurmann v. Van Buren, 240.
Bevelot v. Lestrade, 565, 575.
Sever v. Spangler, 531, 538.
Bianchi v. Magginl, 878.
Biehler v. Coonce, 351.
TABLE OF CASES.
925
[kbferences ake to pages.]
Bierbach v. Goodyear Rubber Co.,
600-602.
Bierlng v. Galveston First Nat.
Bank, 740.
Bigelow V. Henniger, 198.
V. West Wis. Ry. Co., 814, 823.
V. Wygal, 881, 882, 901.
Biglow V. Carney, 202.
Billings V. McCoy, 330, 331, 333,
335, 359.
Bills V. City of Ottumwa, 802.
Billups V. Daggs, 915.
V. Utah Canal E. & B. Co., 187.
Blndbeutal v. Street Ry. Co., 299,
864.
Binfleld v. State, 369._
Bingham v. Bernard,' 761.
V. Hartley, 915.
Binns v. State, 386, 624, 703, 914,
915.
V. Waddill, 898.
Binyon v. State, 480.
Bird V. Forceman, 75.
V. State, 48, 54, 55, 518.
Bird & M. Map Co. v. Jones, 279,
287.
Birdsall v. Carter, 854.
Birmingham Fire Brick Works v.
Allen, 158.
Birmingham Fire Ins. Co. v. Pul-
ver, 379, 385, 760.
Birmingham Mineral R. Co. v. Ten-
nessee Coal, Iron & R.
Co., 183.
V. Wilmer, 154.
Birmingham Nat. Bank v. Bradkey,
787.
Birmingham Union Ry. Co. v. Hale,
154.
Eirney v. New York & W. Print-
ing Telegraph Co., 185, 244, 339,
361.
Blrtwhistle v. Woodward, 227.
Bishop V. Bell, 739.
V. Com., 184, 197.
V. Journal Newspaper Co., 411.
V. Redmond, 298.
V. St. Paul City Ry. Co., 817.
V. State, 110, 207, 292, 319, 320.
V. Village of Goshen, 824.
V. Welch, 389, 395.
Bissell V. Wert, 864, 866.
Blssot V. State, 48, 54, 2S8, 891.
Bltner v. Bitner, 89, 98.
Bitter v. SaathotC, 775.
Bixby V. Carskaddon, 379.
Black V. Brooklyn City R. Co., 209.
V. Daggy, 856.
V. Pratt Coal & Coke Co., 821.
V. Sprague, 168, 169.
V. State, 486, 487, 644, 707, 708,
732, 738, 763.
V. Thornton, 238.
V. Winterstein, 829;
Blackburn v. Morton, 874, 882.
V. Powers, 852, 856, 880.
V. State, 263, 286, 578, 684.
Blacketer v. House, 296, 298, 359,
425, 430.
Blackledge v. Clark, 65.
Blackman v. Cowan, 75.
V. Houssels, 887.
V. State, 821.
v. Wheaton, 390, 393.
Blackmore v. Missouri Pac. Ry,
Co., 216.
V. Neale, 338.
Blackwell v. Hunnicutt, 307.
V. Lynchburg & D. R. Co.', 215.
V. State, 900.
Blackwood v. Brown, 92, 609, 610.
Blair v. City of Groton, 367.
V. Mound City Ry. Co., 109, 110.
V. State, 384.
Blaisdell v. Scally, 465, 901.
Blake v. Hamburg Bremen Fire
Ins. Co., 885.
V. Irish, 887.
V. State, 683.
Blaker v. State, 49, 54, 55.
Blanchard v. Jones, 916.
V. Pratt, 560.
Blanco v. State, 367, 545, 783.
Bland v. Hixenbaugh, 844.
V. People, 379, 389.
V. State, 649, 700.
Blanke v. Dunnerman, 447.
Blankenship v. State, 748.
Blanton v. Mayes, 208.
V. State, 698.
Blatchford v. Boyden, 881.
Blaul V. Tharp, 80.
Blaydes v. Adams, 907.
Bilge V. State, 838, 857.
Blitt V. Heinrich, 372, 563, 771.
Bliven v. New England Screw Co.,
874.
Blizzard v. Applegate, 780.
926
TABLE OF CASES.
[befebencx:s abs to fa.ges.]
Blizzard v. Bross, 840, 857.
Blech V. Edwards, 226, iSl, 237.
Block V. Darling, 813, 820.
Blocker v. State, 441, 445.
Blodgett V. Berlin Mills Co., 413.
Blotcky V. Caplan, 565.
Blough V. Parry, 195, 539.
Bloyd V. Pollock, 207.
Bluedorn v. Missouri Pac. Ry. Co.,
162.
Bluefields Banana Ce. v. WoUfe,
303.
Blum V. Jones, 303.
V. Schram, S4.
v. Whitworth, 192.
Blumo V. State, 162, 165, 364.
Blumeno v. Grand Rapids Sl I. R.
Co., 92.
Blumhardt v. Rohr, 172, 340.
Blunt V. Com., 2S0.
Board Com'ra, Allen Co., t. Boyd,
829, 839.
Board Com'rs, Brown Co., v. Rob-
erts, 842.
Board Com'rs, Howard Co., v.
Less, 39@.
Board Com'rs, Jackson Co., v.
Nichols, 903.
Board Siip'rs, Logan Co., v. Peo-
ple, 88$.
Board of Trustees of Schools v.
King, 198.
Board at Water C»m'ra v. Burr,
814.
Boaz V. Schneider, 67.
Beckoven t. Soard Sup'rs, Lincoln
Tp., 6, 194.
Bodea v. Irwin, 4B9.
Bodine v. SUta, 154, 157, 183, 198,
504, 569, 596, «51, 672, 674, 684,
693, 758.
Boffandlck v. Raleigh, 298.
Bogert V. Phelps, 806, 808.
Boggan V. Home, 817, 823.
Boggs V. Clifton, 286.
V. United States, 289.
Bogk V. Gasaert, 825.
Bohlen v. Stockdale, 239, 242.
Boies V. Henney, 842.
Boing V. Raleigh & Gastoa R. Co.,
105.
Bokien v. State Ins. Co. of Oregon,
886.
Bolckow V. Seymour, 25.
Boldenwick v. Cahlll, 198, 913.
Belen v. State, 382, 850, 851.
Boles V. State, 380, 390.
Boiling V. State, 155.
Boltz V. Smith, 885.
Bond V. Corbett, 340, 341.
Y. State, 366, 382.
Bondurant v. Crawford, 897.
V. State, 183, 545, 675, 783.
Bonham v. Bishop, 864, 866.
Bonino v. Caledonio, 809.
Bonner t. Com., 246.
T. Green, 85.
V. Herrick, 97.
V. Moore, 8S7.
T. State, 434, 436, 894.
Bonney v. COcke, 835.
V. Morrill, 18.
Bonte V. Pastel, 365.
Boobler v. Boobier, 887.
Boofter v. Rogers, 2S2.
Boogher v. Neeoe, 266, 257.
Booker v. State, 580, 587.
Boon V. Murphy, 137, 138, 29S, 300.
Boone v. Miller, 334.
V. Thompson, 268.
Booth V. Boston & A. R. Co., 306.
V. Swezey, 82S.
Boothe V. Loy, 146.
V. State, 620, 641.
Boots V. Canine, 205.
Boren v. State, 867, 878.
Borham v. Davis, 137-139.
Borland v. Chicago, M. & St. P.
Ry. Co., 184.
Borley v. Wheeler & Wilson Mfg.
Co., 807.
Borrodaile t. Leek, 7.
Bosley v. Chesapeake Ins. Co., 227.
Sosqui V. &utro R. Co., 211, 214.
Boss V. Ko*thern Pac. R. Co., 795,
827.
Bossert V. State, 90.
Bostlo T. State, 198, 439.
Boston & M. R. Co. v. McDuffey,
187.
Boswell V. District of Columbia,
915, 916.
Bosworth V. Barker, 266, 278, 279.
Botsford V. Kleinhans, 887.
Bottorft v. Shelton, 266, 272, 2S4,
529.
Bouok V. Enos, 823, 814.
Bourquin v. Bourquin, 99, 1Q4.
TABLE OF CASES.
927
[BEFBBENCES ABB TO FACES.]
Bourke v. Van Keuren, 800.
Bourland v. Board Sup'rs, Itawam-
ba Co., 806.
BouTler v. Stricklett, 807.
Bovard v. Christy, 227.
Bovee v. Town of Danville, 170,
171.
Bowden t. Achor, 262, 261, 266, 281,
2S2.
V. Bowden, 879.
V. Crow, 295, 302.
Bowe V. Hyland, 299.
Bowen v. Carolina, C. G. & C. Ry.
Co., 191.
T. Hannibal & St. J. R. Co.,
199.
V. Pollard, 846, 847.
V. Schuler, 240.
Bower v. Stewart, 843.
Bowers v. People, 565.
Bowie V. Maddox, 109.
V. Spalds, 77, 146, 176.
Bowler v. State, 669.
Bowles V. Lewis, 208.
Bowling V. Memphis & C. R. Co.,
419.
Bowman v. Eppinger, 10.
V. Roberts, 76.
V. Venice & C. Ry. Co., 230.
T. Wettig, 359.
Bowsher v. Chicago, B. & Q. R.
Co., 252.
Box V. Kelso, 304, 800.
Boxley V. Carney, 798.
Boyce v. California Stage Co., 191,
379, 389.
V. Martin, 25.
V. Wabash Ry. Co., 814.
Boyd V. Mclvor, 99.
V. Readsboro, 466.
v. State, 200, 696, 885.
V. Wade, 856.
Boyden v. Fltchburg R. Co., 341.
Boykin v. Perry, 300, 309.
Boyle v. Hazleton, 889.
V. Louden, 304.
V. State, 860, 903, 906.
Boyle's Ex'rs v. Kreitzer, 197.
Boyse v. Crickard, 829.
Brabbits v. Chicago & N. W. Ry.
Co., 855.
Brace v. State, 488, 497.
Bracken v. Union Pac. Ry. Co., 830.
Brackett v. Hinsdale, 904.
V. Norton, 27.
Bradford v. Marbury, 206.
V. Pearson, 205.
V. People, 263, 265.
V. State, 351.
Bradley v. Coolbaugh, 63, 65.
V. Lee, 66, 911.
V. Morris, 740.
V. Ohio River & C. Ry. Co., 65,
366.
V PSirks 195
V. state,' 509,' 656, 657, 917.
BTadshaw v. Mayfield, 218, 886.
V. State, 200.
Bradstreet v. Rich, 334, 917.
Bradway v. Waddell, 1, 262, 266,
270, 272, 275, 276, 280, 284.
Brady v. Cassidy, 14, 17, 610, 909.
v. Clark, 5, 19.
V. Com., 100.
V. Georgia Home Ins. Co., 246.
Bragg V. Bletz, 81.
Brainard v. Burton, 96, 360.
Brakken v. Minneapolis & St. L.
Ry. Co., 473, 474.
Bramlette v. State, 321, 650.
Branch Bank at Mobile v. Boykin,
20.
Brandon v. Dawson, 898.
Brann v. State, 488.
Branner v. Stormont, 895.
Brannigan v. People, 437.
Brannum v. O'Connor, 205.
Branstetter v. Dorrough, 903, 906.
Brant v. Gallup, 178, 248, 884.
Brantley v. State, 154, 761.
Branton v. O'Brlant, 301, 830.
Brash v. City of St. Louis, 365.
Brashears v. State, 611.
Brassell v. State, 154.
Braunsdorf v. Pellner, 143.
Bravo v. State, 878.
Bray v. Ely, 153, 158.
V. State, 130, 656, 848.
Brazier v. Burt, 838, 849.
Breck v. State, 538.
Breckenridge v. Anderson, 894.
Bfeedlove v. Bundy, 415.
Breese v. United States, 95, 97,
151.
Brehm v. Great Western Ry. Co.,
532.
Brem v. Allison, 242.
Brembridge v. OSbome, 90.
928
TABLE OP CASES.
[BEFEBENCES ABE TO PAGES.]
Breneman v. Kllgore, 184.
Brentner v. Chicago, M. & St. P.
Ry. Co., 889.
Breon v. Henkle, 197.
Bressler v. People, 510,. 716.
V. Schwertferger, 66.
Brewer v. Strong's Bx'rs, 839.
V. Watson, 139.
Brewster v. Baxter, 368.
V. CroBsland, 797.
Brick V. Bosworth, 329, 332, 333.
Brickill v. City of Baltimore, 96.
Bridgeport City Bank v. Empire
Stone Dressing Co., 11.
Bridgers t. Dill, 465.
Bridgman t. Steamboat Emily, 853,
856.
Briggs V. Com., 585.
V. Fireman's Fund Ins. Co.,
209.
Brigham v. Gurney, 891.
Brighthope Ky. Co. v. Rogers, 867,
880.
Brlgnoli v. Chicago & G. E. Ry. Co.,
338
Brink v. Black, 381, 386.
V. Posey, 832.
Brinser v. Longenecker, 301, 307.
Brinson v. Smith, 883.
Brinton v. Walker, 90.
Briscoe v. Jones, 877.
Britt V. Aylett, 175, 811.
Brittain v. Doylestown Bank, 301.
Britton v. City of St. Louis, 217,
219, 556.
Broadbent v. Tuskaloosa S. & A.
Ass'n, 349, 3S4.
Brockman v. Metropolitan St. R.
Co., 359.
Brockway v. Patterson, 898.
Broil V. State, 52.
Bromley v. Goodwin, 379.
Bromley's Estate, In re, 763.
Bronnenburg v. Charman, 73, 406.
V. Coburn, 891, 893.
Bronson v. State, 320.
Brooke v. People, 743, 748.
V. Young, 340, 360.
Brookin v. State, 711, 712.
Brooks y. Allen, 386, 908.
v. Dutcher, 819, 822.
V. Hannibal & St. J. R. Co.,
907.
V. Marbury, 338.
Brooks V. Inhabitants of Somer-
ville, 10, 65.
V. Perry, 877.
V. Rochester Ry. Co., 918.
V. Standard Fire Ins. Co., 15,
16.
V. State, 333, 335, 488.
V. Steen, 609, 610.
Brooster v. State, 803.
Brother Paxson in Huddleston y.
Borough of West Bellevue, 352.
BTotherton v. Weathersby, 314.
Brow V. State, 787.
Brower v. Bdson, 76.
T. Merrill, 303.
Brown v. Bacon, 471.
V. Bridges, 903, 908.
V. Burke, 450.
V. Busch, 541.
V. Caldwell, 892.
V. Calloway, 300, 310.
V. Com., 42, 43, 482.
V. Crawford, 265.
V. Dunckel, 853.
V. Emerson, 81.
V. Everett Ridley Ragan Co.,
222.
V. Forest, 199, 808, 877, 904.
V. Foster, 302, 314.
V. Hannibal & St. J. R. Co.,
566.
V. Hendrickson, 223.
V. Huger, 18.
V. Isbell, 198.
V. Kentfield, 819, 851.
V. Langner, 6, 14-16.
V. Lillie, 878.
V. McAllister, 168, 169.
V. McCormick, 232.
V. McCord & Bradfield Furni-
ture Co., 380, 903, 904,
918.
V. Master, 777.
V. Matthews, 471.
V. Metropolitan Life Ins. Co.,
196.
V. Missouri Pac. R. Co., 299.
V. Monson, 242.
V. Moore, 14.
V. Morris, 300.
V. Odill, 367.
V. Parkinson, 449.
V. People, 266, 290.
V. Perez, 886.
TABLE OP CASES.
929
[eefekences ake to pages.]
Brown v. Scott County, 821.
V. Stacy, 575.
V. State, 200, 227, 229, 297, 349,
390, 399, 495, 514, 526,
686, 691, 719, 831, 915.
V. Town of Swanton, 605.
V. Walker, 188.
V. Wilson, 212. , <
Brownell v. Fuller, 8.
Brownfield v. Hughes, 11.
Browning v. Hight, 858.
V. State, 199, 296, 441, 665, 669.
V. Wabash Western Ry. Co.,
317.
BTownlee v. Martin, 887.
Brownlow v. Woolard, 227.
Brownson v. Scanlan, 339, 340,
348, 390.
Broyer v. Ritter, 799.
Bruce v. Beall. 167.
V. First Nat. Bank of Weath-
erford, 370.
V. Koch, 916.
y. Westervelt, 89.
Bruch V. Carter, 96, 97.
Brulo V. People, 606.
Brumagim v. Bradshaw, 887.
Bruner v. Wade, 541.
Brunette v. Town of Gagen, 183,
452.
Bruno V. State, 114.
Brunswig v. White, 858.
Brush V. Smith, 533.
Brusle V. Peck Bros. & Co., 191.
Bryan v. Chicago, R. I. & P. Ry.
Co., 216, 776.
Bryan Cotton-Seed Oil Mill v. Ful-
ler, 228.
Bryant v. Crosby, 339.
V. Hagerty, 18.
V. State, 441.
Bryce v. Meyer, 96.
Buchart v. Ell, 350, 821.
Buchtel V. Evans, 189.
Buck V. Buck, 418.
V. Chesapeake Ins. Co., 338.
V. People's St. Ry. & Electric
Light & Power Co., 329,
333.
Buckingham v. Harris, 765.
Buckley v. Phenicie, 896.
V. State, 513.
Bucklin v. Thompson, 175.
Buckmaster v. Cool, 805, 838.
59— ns. to Juries.
Buckminster v. Perry, 101.
Budd V. Brooke, 339, 413.
V. Hoffheimer, 182.
Buel V. New York Steamer, 829.
V. St. Louis Transfer Co., 170.
Buetzier v. Jones, 29^.
Buffalo Barb Wire Co. v. Phillips,
813.
BMford V. McGetchie, 530.
V. State, 439.
Bugbee v. Kendricken, 225.
Buie V. Buie. 868.
Bulen V. Granger, 196.
Bulkeley v. Keteltas, 90, 371, 385.
Bull V. Brockway, 891.
V. Schuberth, 344.
Bulliner v. People, 508, 510.
Bullitt V. Musgrave, 853.
Bullock V. Smith, 888.
Bunco V. McMahon, 303. 559, 565.
Btindy v. McKnight, 78, 79, 908,
910. ■
Bunn V. Crowl, 427.
Bunnell y. Greathead, 321.
Buntin v. Weddle, 852.
Bunting v. Saltz, 106.
Bunyan v. Loftus, 254.
Bunyea v. Metropolitan R. Co.,
852.
Burbridge y. Kansas City Cable R.
Co., 159, 879.
Burcham v. Gann, 246.
Burden v. Denig, 96.
Burdick v. Michael, 903.
V. People, 99.
Burger v. State, 617.
Burgess v. Territory, 881.
Burgett V. Burgett, 295, 349.
Burk V. Clark, 857.
Burke V. Lee, 14.
V. Maxwell's Adm'rs, 95, 99.
V. Snell, 195.
V. State, 232.
Burkett v. Bond, 809.
Burkham v. Daniel, 865, 885.
y. Mastin, 108.
Burkitt V. Twyman; 296.
Burks y. State, 780.
Burling y. Gunther, 96.
Burlington v. Baders, 911.
Burlington First Nat. Bank v.
Hatch, 916.
BurlingtoS & M. R. Co. v. Schluntz,
300.
930
TABLE OF CASES.
[KEPEEENCES ABE TO PAGES.]
Burnett v. Crawford, 182, 133.
Burney v. Ball, 226.
V. State, 200, 739.
V. Torrey, 531.
Burnham v. Ailen, 23.
V. Jackson, 195.
V. Logan, 341, 348.
Burns v. Nortli Chicago Rolling
Mill Co., 452.
V. Oliphant, 216, 220.
V. People, 270, 808, 842.
V. State, 802.
V. Sutherland, 301.
Burr V. Joy, 798.
V. Sin, 89.
Burris v. State, 446.
Burroughs v. State, 821.
Burrows v. Delta Transp. Co., 472.
V. Lehndorff, 903.
Burt V. Long, 81.
V. Merchants' Ins. Co., 844.
Burtch V. Nlckerson, 300.
Burtles v. State, 7, 853.
Burton V. Boyd, 865, 867.
V. March, 381.
V. Merrick, 914.
V. State, 238.
T. West Jersey Ferry Co., 810,
820.
V. Wilmington & W. R. Co.,
301.
Busch V. Fisher, 465, 466.
V.' Wilcox, 240.
Bush T. Durham, 834.
V. Glover, 383, 387.
T. State, 238.
Bushell's Case, 36.
Bushey v. Glenn, 898.
Bushnell v. Chamberlain, 366.
V. Crooke Mining & Smelting
Co., 175.
Buster's Bx'r v. Wallace, 200, 470.
Butcher's Melting Ass'n v. Com-
mercial Bank of Cincinnati, 820.
Butler V. Cams, 820, 823, 830.
V. Machen, 904. •
V. Maples, 303.
V. State, 19, 42, 101, 302, 309,
312, 649.
Buxly V. Buxton, 532.
Buzzell V. Emerton, .316.
Bybee v. Irons, 871. •
Byers v. Wallace, 87.
Byford v. Girton, 812.
Bynum v. Bynum,'292, 300, 327.
Bynum v. Southern Pump & Pipe
Co., 104, 826.
Byrne v. Smith, 422, 424.
O.
C. Aultman & Co. v. Case, 823.
V. Martin, 293.
t!. H. Pargo & Co. v. Dixon, 238.
C. J. L. Meyer & Sons Co. v. Black,
199.
Cahell y. Menczer, 776.
Cadmus v. St. Louis Bridge & Tun-
nel Co., 841.
Cadwallader v. Blair, 358.
Cady V. Owen, 328, 337, 418.
Caliill T. Liggett & Myers Tobaceo
Co., 299.
Cahn r. Ladd, 563.
V. Reid, 150.
Cahoon V. Marshall, 66.
Cahow V. Chicago, R. I. & P. Ry.,
912.
Cain V. Cain, 76.
V. Thonaas, 197.
V. Wallace, 907.
Caldwell v. Brown, 332.
V. Dickson, 14.
V. Murphy, 813, 823.
V. New Jersey Steamboat Co.,
875, 876, 908, 909.
V. Osgood, 824.
V. Parmer's Adm'r, 338, 819.
V. State, 624.
V. Stephens, 84, 205.
Caledonian Ins. Co. t. Traub, 6,
199.
Calef V. Thomas, 357.
California Cent. Ry. Co. v. Hooper,
851, 857.
Callaghan v. Myers, 240.
Callahan v. State, 239.
Callan v. McDaniel, 227, 388.
Callanan v. Shaw, 560.
Callison v. Smith, 768, 769.
Calmady v. Rowe, 89, 95.
Calton V. Utah, 437.
Calvert v. Coxe, 869.
Camden & Rockland Water Co. v.
Ingrabam, 918,
Cameron v. Vandergriff, 99.
Camp V. Heelan, 190.
V. Phillips, 206.
V. Pollock, 84.
Camp Point Mfg. Co. v. Ballow,
915.
TABLE OP OASES.
93X
[BEFEBIJNCKa ABB TO FAQES.]
Campau v. Dubois, 380, 386.
V. North, aoa.
Campbell v. Beoteett, 425, 430.
V. Buller, 854.
V. Campbell, 360.
V. Carruth, 821.
V. Cayey, 194.
V. Day, 382.
V. Fisher, 912.
V. Fuller, 385, 396.
V. Holland, 368, 904, 909.
V. Metcalf, 196.
V. New England Mut. Ufe Ins.
Co., 569.
V. Ormsby, 870.
V. People, 380.
V. Peterman, 846.
V. Roe, 11.
V. St. Louis, I. M. & S. Ry. Co.,
299.
V. State, 523, 560, 698, 699.
V. Warner, 313.
Canada v. Curry, 106.
Cancemi v. People, 583, 588.
Canfleld v. Baltimore & O. R. Co.,
461.
V. Canfleld, 838.
Cannell v. Smith, 308.
Cannon v. gannon, 232.
V. State, 370.
Caobb V. Malone, 847.
Cape Girardeau County v. Harbi-
son, 447.
Cape Girardeau U. M. Co. v.
Bruihl, 7.
Capital Bank v. Armstrong, 190.
Capitol Freehold Land & Inv. Co.
V. Pecos & N. T. Ry. Co., 152.
Caples V. Central P. R. Co., 909.
Caraway v. Citizens' Nat. Bank of
Weatherford, 228.
Carden v. State, 681.
Carder v. Primm, 170, 232.
Cardwell v. State, 198, 366.
Carey v. Chicago, M. & St. P. Ry.
Co., 329, 333.
Carey-Lombard Lumber Co. v.
Hunt, 887.
Carl V. Knott, 28.
Garland v. Day, 823.
Carleton v. State, 297, 300, 321.
Carlin v. Chicago, R. I. & P. R.
Co., 865.
CarliBle v. Foster, 450.
Carlisle v. Hill, 175.
V. Keokuk Northern Line
Packet Co., 799.
V. State, 14, 21.
Carlock v. Spencer, 462.
Carlson v. Dow, 811.
V. Winterson, 199.
Carlton v. People, 710.
V. Wilmington & W. R. Co.,
381, 820.
Carman v. Central R. Co. of New
Jersey, 147.
Carmichael v. Brooks, 338.
Games v. Piatt, 307, 327.
Carney v. Barrett, 331, 333.
Carolina, C. G. & C. Ry. Co. v.
Seigler, 860, 904.
Carothers v. Dunning, 904.
V. Dunnlng's Lessee, 301.
Carpenter v. Dowe, 342.
V. Eastern Transp. Co., 881.
V. Ewing, 805, 851.
V. Mayer, 352.
V. Parker, 821.
V. People, 25, 43.
V. Pierce, 413.
V. O'Neal, 798.
V. State, 298, 359, 362.
Carpentier v. Thirston, 14.
Carprew v. Canavan, 291.
Carr v. H. C. Prick Coke Co., 308.
V. State, 268", -284, 287, 651, 652,
654, 672, 673, 699.
Carraher v. San Francisco Bridge
Co., 73.
Carrall v. State, 680.
Carrico v. West Virginia Cent. &
P. Ry. Co., 349.
Carrington v. Pacific Mail Steam-
ship Co., 908.
Carroll v. Bowler, 826.
V. Chicago, St. P., M. & O. Ry.
Co., 100, 104.
V. Missouri Pac. By. Co., 84. ,
V. People, 172.
V. Roberts, 114.
v" State, 368, 489, 493.
v. Tucker, 381.
V. Williston, 824.
Carruth v. Harris. 232, 233.
Carruthers v. Towne, 226.
Carson v. McCormick Harvesting
Mach. Co., 901, 912.
V. Norfolk & C. R. Co., 196.
932
TABLE OP CASES.
[KEFEBENCES ABE TO PAGES.]
Carson v. State, 325, 383, 387, 852,
863.
V. Stevens, 915.
Carstens v. Stetson & Post Mill
Co., 884.
Carter v. Baker, 532.
V. Bennett, 292, 297.
V. Carusi, 303.
V. Columbia & G. R. Co., 302,
327, 340.
T. Barnes, 888.
v. Missouri Mining & Lumber
Co., 799.
V. Pomeroy, 64.
V. State, 402.
V. Town of Monticello, 903.
Carter's Bx'rs v. Carter, 100.
Carter White Lead Co. v. Kinlin,
300.
Cartier v. Douville, 889.
Caruthers v. Balsley, 200.
V. Mardis' Adm'rs, 879.
Carver v. Carver, 295, 298.
V. Detroit & S. Plank Road
Co., 12.
V. Jackson, 844.
Cary V. Norton, 389.
Casco Bank v. Keene, 887.
Case V. Burrows, 64.
V. Dewey, 897.
V. Illinois Cent. R. Co., 208.
V. Weber, 359.
V. Williams, 131.
Casey v. State, 370.
Casky v. Haviland, 304.
Casner v. State, 521.
Cassady v. Magher, 906.
Castello V. Landwehr, 340, 383.
Castle V. Bullard, 869.
V. State, 678, 729, 733, 735.
Castleman v. Griffin, 466, 471.
V. Sherry, 526, 627.
Castlin v. State, 204, 374.
Castner v. Sliker, 89.
V. The Dr. Franklin, 340, 341,
822.
Catasauqua Mfg. Co. v. Hopkins,
167.
Catawissa R. Co. v. Armstrong,
171.
Gates V. Bales, 846.
Cathcart v. Com., 89, 90.
Catlett V. St. Louis, 1. M. & S. Ry.
Co., 10, 12.
Cato v. State, 297.
Catts v. Phalen, 338-340.
Caudle v. Fallen, 820, 823.
Cauley v. State, 543.
Cavallaro v. Texas & P. Ry. Co,
813, 821.
Cavender v. Roberson, 100.
V. State, 703.
Caveny v. Neely, 296, 302.
Caw V. People, 199, 209, 210.
Cawfield v. Ashville St. Ry. Co.,
207.
Cecil V. Johnson, 104.
Cedar Falls & M. R. Co. t. Rich,
895.
Cedar Rapids, L F. & N. W. Ry.
Co. V. Cowan, 271, 274.
Cederson v. Oregon Railroad &
Navigation Co., 185, 912.
Central Branch Union Pac. R. Co.
V. Andrews, 760, 865, 867, 907,
908.
Central of Georgia Ry. Co. v. Bern-
stein, 194, 509.
V. Bond, 358, 616, 618.
V. Windham, 195, 203.
Central R. Co. v. De Bray, 905.
V. Freeman, 119.
V. Harris, 292, 297, 322.
V. Haslett, 160.
V. Hubbard, 191.
V. Mitchell, 905.
V. Richards, 349.
Central Railroad & Banking Co. v.
Nash, 905.
v. Ogletree, 819.
V. Smith, 78.
Cesure v. State, 153', 437.
Chaddick v. Haley, 886.
Chadwick v. Butler, 64, 85.
Chsifee v. City of Aiken, 191, 206.
Chaffin V. Lawrence, 65.
Chalk V. Foster, 302.
Chamberlain v. Brown, 831.
V. Smith's Adm'r, 868.
V. State, 197, 286, 422.
Chamberlain Banking House v.
Woolsey, 183, 194.
Chambers v. Kyle, 881.
V. People, 175, 501.
Chambers' Adm'r v. Ohio Life Ins.
& Trust Co., 430.
Chamness v. Chamness, 100, 298.
Champlain v. Detroit Stamping
Co., 380.
TABLE OF CASES,
933
[eefeeences aeb to pages.]
Chance v. Indianapolis & W.
Gravel Road Co., 286.
Chandler v. Barrett, 532.
V. De Graff, 380.
V. Jost, 239.
V. Keiler, 14, 15.
V. State, 837, 839.,
Chaney v. Phoenix Ins. Co., 239,
240.
Chapin v. Chicago, M. & St. P.
Ry. Co., 910.
Chapman v. Cawrey, 153.
T. Chicago & N. W. Ry. Co.,
428, 429.
V. Copeland, 162.
V. Erie Ry. Co., 175, 461, 917.
V. McAdams, 766.
V. McCormick, 329, 335.
v. Sneed, 268.
V. Southern Pac. Co., 197.
\. State, 155, 239, 240, 366, 649.
y. Stewart, 885.
Chappel V. State,. 445, 624, 628.
Chappell V. Allen, 153.
V. Cady, 303.
(Jharles v. Patch, 12.
Charleston Ins. & Trust Co. v.
Corner, 87.
Charlotte v. Chouteau, 26, 27.
Charter v. Lane, L-o, 339, 364, 379.
Chase v. Buhl Iron Works, 243.
V. Horton, 77.
V. Scott, 839, 843.
V. Washburn, 888.
Chasteen v. Martin, 854.
Chatham v. State, 154.
Chattahoochee Brick Co. v. Sulli-
van, 798, 852.
Chattanooga, R. & C. R. Co. v.
Huggins, 310.
V. Owen, 162, 472, 473.
V. Palmer, 881.
Chavarria v. State, 8.
Cheaney v. State, 832, 841.
Cheatham v. State, 485-487.
Chemical Co. of Canton v. John-
son, 808.
Chesapeake, O. & S. W. R. Co. v.
Barlow, 457.
V. Poster, 334, 831, 833.
V. Hendricks, 328, 334.
Chesapeake & O. Canal Co. v.
Knapp, 6.
Cheseborough v. Conover, 787.
Chesney v. Meadows, 230.
Chestaln v. Robinson, 359.
Chester v. Bower, 805.
V. State, 550.
Chew V. Beall, 229.
Chicago Anderson Pressed Brick
Co. V. Reinnelger, 77.
T. Sobkowiak, 328, 332.
Chicago Bridge & Iron Co. v.
Hayes, 185.
Chicago, B. & Q. R. Co. v. Ander-
son, 882, 894.
V. Avery, 379.
V. Dickson, 379, 386.
V. Dougherty, 150.
V. Dunn, 905.
V. Gregory, 201, 207.
V. Griffin, 153.
V. Hale, 17.
V. Housh, 159.
V. Kuster, 230.
V. Payne, 11, 162, 163.
V. Perkins, 389.
Chicago City v. Robbins, 197.
Chicago City Ry. Co. v. Hastings,
882.
V. Keenan, 771, 778.
V. Mager, 371.
Chicago Guaranty Fund Life Soc.
V. Ford, 334.
Chicago Heights Land Ass'n v.
Butler, 362.
Chicago, I. & E. Ry. Co. v. Curless,
364.
V. Patterson, 211, 365, 791, 912.
Chicago, K. & W. R. Co. v. Brun-
son, 379.
V. Parsons, 901.
V. Prouty, 196, 202.
V. Watkins, 868, 869.
Chicago, M. & St. P. Ry. Co. v.
Randolph Town-Site Co.,
299
V. Yando, 831, 849, 852.
Chicago, North Shore St. Ry. Co. v.
Hebson, 792, 913.
Chicago, R. I. & P. Ry. Co. v.
Clough, 338.
V. Groves, 221.
V. Harmon, 151.
V. Jones, 27.
V. Kinnare, 391.
V. Lewis, 206.
V. Stahley, 89, 90.
934
TABLE OF CASES.
[REFERENCES AEffi TO PAGES.]
Chicago, S. F. & C. Ry. Co. v. Viv-
ian, 871, 907.
Chicago, St. L. & P. R. Co. v. But-
ler, 896.
V. Spilker, 83, 389, 914.
Chicago West Division Ry. Co. v.
Bert, 553.
V. Haviland, 179, 180, 359.
V. Mills, 76, 77, 887.
Chicago & A. R. Co. v. Anderson,
251, 510, 512.
V. Bragonler, 183.
V. Calliins, 206.
V. Eselln, 193.
V. Fisher, 480.
V. Harrington, 218.
V. Kelly, 178-180.
V. McDonnell, 145.
V. Pillsbury, 379.
V. Robbins, 424, 426.
V. Robinson, 100, 103, 183.
V. Utley, 212.
Chicago & E. I. R. Co. v. Boggs,
369.
V. Hines, 145, 895.
v. Kneirim, 888.
V. Stonecipher, 5, 789.
V. Storment, 775.
Chicago, & G. T. Ry. Co. v. Spurney,
511.
Chicago & N. W. Ry. Co. v. Clark,
232, 233.
v. Dunleavy, 570.
V. Snyder, 251.
V. Whitton, 382.
V. Whitton's Adm'r, 148.
Chicago & W. I. R. Co. v. Bingen-
heimer, 379, 386.
V. Doan, 876, 905.
Chichester v. Whiteleather, 28.
Chld,ester v. Consolidated People's
Ditch Co., 168, 169, 916.
Childress v. Callendar, 350.
V. State, 508.
Chllds V. State, 563, 600, 601, 696.
Chiles V. Booth, 175, 176.
Chinn V. Davis, 430.
Chipman v. Stansbury, 100.
Chirac v. Reinecker, 200.
Chisum v. Chesnutt, 158.
Chitister v. State, 706.
Chittenden v. Evans, 153.
Chittim v. Martinez, 763.
Chouquette v. Barada, 101.
Chouteau V. Jupiter Iron Works,
420, 425, 426.
V. Searcy, 76, 196.
Christian v. Connecticut Mut. Life
Ins. Co., 190, 191.
V. State, 339.
V. Wahl, 852.
Chriatman v. Ray, 597, 600, 603.
Christy v. Stafford, 447.
Chubbuck v. Hannibal & St. J. R.
Co., 570.
Chung Sing v. United States, 292.
Church V. Melville, 239.
V. ilowell, 886.
Churchill v. Gronewig, 298, 304,
887.
Chute V. State, 474.
Cicely V. State, 390, 662, 669, 670,
700, 702.
Cicero & P. St Ry. Co. v. Richter,
194, 203.
Cincinnati, H. & 1. R. Co., v. Clif-
ford, 846, 852. •
Cincinnati, 1., St. L. & C. Ry. Co. v.
Smock, 298.
Cincinnati, N. O. & T. P. Ry. v.
Rawson, 885.
Citizens' F. &. M. Ins. Co. v. Short,
861.
V. Van Doren, 861.
Citizens' Gaslight & Heating Co. v.
O'Brien, 179, 180.
Citizens' St. Ry. Co. v. Abright,
298.
V. Burke, 101, 105, 474.
V. Hobbs, 350.
V. Merl, 197, 365, 876, 906.
Citizens' State Bank v. Council
Bluffs Fuel Co., 881.
City Bank's Appeal, 771, 908.
City Bank of Macon v. Kent, 279,
543.
City Cab Co. v. Taylor, 831, 832.
City Council of Augusta v. Owens,
183, 184, 195.
V. Tharpe, 876, 911.
City Council of Montgomery v.
Gilmer, 828.
City Nat. Bank of Selma v. Burns,
338.
City of Abilene v. Hendricks, 198.
City of Aljingdon v. Meadows, 266,
271, 852.
City Of Atchison v. King, 240.
TABLE OF CASES.
935
[BBFBRENCES AKE TO PAGES.]
City Of Atchison v. Jangen, 262,
263, 266.
City of Atlanta v. Brown, 297.
y. Buchanan, 339.
V. Champe, 148, 543.
City of Aurora v. Gillett, 905.
V. Hlllman, 240, 241.
City of Birmingham v. Starr, 154.
City of Bonham v. Crlder, 155, 157.
City of Boulder v. Fowler, 364.
V. Niles, 168, 169, 171.
City of Cape Girardeau v. Fisher,
267.
City of Chadron v. Glover, 801, 807.
City of Chicago v. Heslng, 879.
V. Keefe, 290, 298.
V. Moore, 66, 83, 379, 385, 386,
389, 397.
V. Scholten, 205, 362.
v. Spoor, 239, 249.
V. Wright & Lawther Oil &
Lead Mfg. Co., 464.
City of Cincinnati V. Anderson, 812.
V. Lochner, 387.
City of Clay Centre v. Jevons, 889,
890.
City of Columbus v. Strassner, 726.
City of Corsieana v. Tohln, 367.
City of Covington v. Diehl, 203.
City of Crete v. Childs, 151.
City of Dallas v. Beeman, 102, 114,
184.
City of Denver v. Capelli, 169.
V. Hyatt, 816, 818.
City of Durango v. Luttrell, 826.
City of East St. Louis v. O'Flynn,
10.
City of Bvansville v. Senhenn, 364.
V. Thacker, 805.
V. Wilter, 788.
City of Freeport v. Ishell, 160, 195.
City of Galveston v. Morton, 897.
City of Greenville v. Henry, 80.
City of Hannibal v. Richards, 181.
City of Hartford v. Champion, 364.
City of Harvard v. Crouch, 510, 511.
City of Indianapolis v. Scott, 856,
879.
City of Joliet v. Looney, 415, 416,
427.
V. Walker, 915.
City of Junction City v. Blades,
100, 106, 255.
City of Kearney v. Smith, 807, '809.
City of Key West v. Baer, 825.
City of Kinsley v. Morse, 195.
City of Lanark v. Dougherty, 84.
City of La Sallfe v. Kostka, 364,
397.
City of Lafayette v. Ashby, 864, 867.
City of Lewiston v. Inhabitants of
Harrison, 845.
City of Lincoln v. Beckman, 508.
V. Gillian, -892.
V. Holmes, 368.
V. Smith, 909.
City of Litchfield v. Ward, 169.
City of Logansport v. Dunn, 897.
V. Dykeman, 344, 389, 398.
V. Justice, 72.
City of Mendota v. Fay, 151.
City of Omaha v. McGavock, 809,
814.
City of Paxton v. Frew, 83.
City of Peoria v. Calhoun, 27.
V. Simpson, 905.
City of Rock Island v. Starkey, 876,
910.
City of Rockford v. Falver, 871.
City of St. Louis v. Weber, 26.
City of San Antonio v. Porter, 102,
106, 109. •
City of Seattle v. Buzby, 382, 849,
904.
City of South Bend v. Hardy, 298.
City of Sterling v. Merrill, 364.
City of Toledo v. Preston, 833.
City of Topeka v. Heitman, 818.
V. Martineau, 475.
V. Tuttle, 344.
City of Waverly v. Henry, 238.
City of Waxahachie v. Connor, 303.
City of Wyandotte v. Noble, 806.
V. White, 887, 903.
City Trust, Safe Deposit & Surety
Co. of Philadelphia v. Fidelity &
Casualty Co. of New York, 369,
917.
City & Suburban Ry. Co. v. Find-
ley, 130, 905.
Claflin V. Swoyer, 912.
Clagett V. Conlee, 880.
Claghorn v. Lingo, 15.
Clampitt V. Kerr, 382, 390, 850.
Clanin v. Fagan, 832, 834, 903.
Clanton v. State, 878.
Clapp V. Bromagham, 98.
V. Minneapolis & St. L. Ry. Co.,
299, 304, 316, 817.
936
TABLE OF CASES.
[repeeences aee to pages.]
Clare v. People, 168, 715-717.
Clarey v. State, 480, 510, 761.
Clark V. Cassidy, 'i 68.
V. Com., 682, 693.
V. Fox, 914.
V. Goddard, 7.
V. Hammerle, 227, 292.
V. His Creditors, 805.
V. McElvy, 169. .
V. McGraw, 65, 897.
V. Moore, 888.
V. Partridge, 96.
V. Smith, 100, 108, 232, 235,
807;
V. State, 113, 208, 209, 268, 286,
288, 508, 510, 511, 514.
V. Wood, 381.
Clarke v. Baker, 212, 292.
V. Dutclier, 885.
V. Edwards, 178.
V. Kitchen, 257.
Clarkson v. Whltaker, 897.
Claussen v. La Franz, 832, 835.
Claxton V. State, 727.
Clay V. Barlow, 896.
V. Robinson, 879.
Clay's Heirs v. Miller, 167, 916, 917.
Clealand v. Walker, 383.
Clem V. State, 47, 53, 459.
Clement v. Packer, 226.
Clements v. Rogers, 381.
Cleveland v. Empire Mills, 110, 342.
V. Miller, 907.
V. State, 155.
Cleveland, C. & C. R. Co. v. Terry,
904.
Cleveland, C, C. & I. Ry. Co. v.
Bates, 908.
Cleveland, C, C. & St. L. Ry. Co. v.
Hall, 198.
V. Keenan, 364, 876, 914.
v. Wood, 364.
V. Zlder, 818.
Cleveland, P. & E. R. Co. v. Nixon,
190, 346, 349, 359.
Cleveland & B. Electric R. Co. v.
Hawkins, 404.
Cleveland & P. R. Co. v. Sargent,
346. ■
ClifEord v. Lee, 112, 727.
V. State, 303.
Clifton V. Shannon, 884.
V. Sparks, 765.
V. Litchfield, 64.
Cline V. Lindsey, %<-^ , 902, 915.
Clinton v. Howard, 455.
Clinton Nat. Bank v. Graves, 895.
Clintsman v. Alfred J. Brown Seed
Co., 338, 345.
Clisby v. Mobile & 0. R. Co., 876,
910.
Clore V. Mclntire, 849.
v. State, 6SS.
Close V. Samm, 472, 474.
Clbuse V. Maguire, 448.
Clouser v. Ruckman, 217.
Clow V. Plummer, 336.
Cluskey V. City of St. Louis, 329,
404.
Clymer v. Cameron, 888.
Clymer's Lessee v. Dawkins, 382.
Coates V. Sangston, 230, 292, 380.
Cobb V. Covenant Mut. Ben. Ass'n,
255.
V. Fogalman, 207.
V. Griffith & Adams S., G. &
Transp. Co., 27.
V. Krutz, 868.
V. Malone, 851.
V. State, 564, 821.
Coble V. Eltzroth, 903, 906.
Coburn v. State, 489.
Cochran v. United States, 732.
Cocker v. Cocker, 216.
v. State, 892.
Cockerell v. State, 514.
Cockrill V. Cox, 302.
v. Hall, 423, 821.
Codding v. Wood, 28, 29.
Coffee V. State, 729.
Coffeen v. McCord, 805.
Coffelt V. State, 488.
Coffeyvllle Vitrified Brick Co. v.
Zimmerman, 452.
Coffin V. Coffin, 359.
V. Taylor, 854.
V. United States, 238, 370, 732.
CofEman v. Reeves, 411.
Coggins V. Chicago & A. R. Co., 564.
Cogley V. Cushman, 848, 853.
Cogswell V. West St. & N. E. Elec-
tric Ry. Co., 795.
Cohen v. Cohen, 196.
V. Pemherton, 96.
V. Schick, 359, 389, 392, 398.
V. State, 551, 668, 819.
V. West Chicago St. Ry. Co.,
808.
Cohn V. Stewart, 17.
Cohron v. State, 887.
TABLE OF CASES.
937
[references are to pages.]
Coil V. state, 366.
Coit V. Waples, 421.
Coker v. Hayes, 828.
V. Ropes, 838.
V. State, 780.
Colburn v. Brunswick Flour Co.,
859.
Cole V. Boyd, 453.
~ V. Cole', 897.
V. Curtis, 812, 822.
V. Hebb, 10.
V. Spann, 383.
V. Taylor, 300.
Colee V. State, 145, 649, 906.
Coleman v. Adair, 534.
V. Davis, 905.
V. Drane, 299.
V. People, 467.
V. Roberts, 386.
V. State, 364, 585, 659, 681, 698,
707, 709, 727.
Colemard v. Lamb, 300.
Colledge's Case, 89.
Collett V. State, 350.
Collier v. Jenks, 888.
Collins V. Breen, 831, 833, 84x.
V. City of Janesville, 183.
v. Collins, 191.
V. Leafey, 142.
v. People, 482, 483, 486, 487.
V. Richmond Stove Co., 887,
902, 908.
V. Rush, 892.
V. State, 432, 441, 524, 869.
V. Waters, 232, 236.
Collins Ice-Cream Co. v. Stephens,
826, 828, 829.
Collis V. Bowen, 856.
Colorado Cent. Consolidated Min.
Co. V. Turck, 808.
Colorado C. & I. Co. v. John, 11.
Coloritype Co. v. Williams, 507.
Colquhoun v-. Wells, Fargo & Co.,
161.
Colt V. Sixth Ave. R. Co., 12.
Colter V. State, 698.
Columbia Bridge Co. v. Kline, 393.
Columbia Mill Co. v. National Bank
of Commerce, 824.
Columbia Veneer & Box Co. v. Cot-
tonwood Lumber Co., 281.
Columbia & P. S. R. Co. v. Haw-
thorne, 400.
Columbian Ins. Co. v. Lawrence,
338.
Columbus, C. & I. C. Ry. Co. v.
Powell, 856.
Columbus, H. V. & T. Ry. Co. v.
Shannon, 908.
Colvin V. Menefee, 888.
Colyer v. Whitaker, 863.
Comegys v. American Lumber Co.,
193.
Comer v. Himes, 16.
V. State, 802.
Comfort V. Ballingal, 16, 18.
Commissioners of Newborn v. Daw-
son, 381.
Com. V. Anthes, 32, 33, 35, 42, 45,
61, 62.
V. Barner, 538.
V. Barry, 117, 131, 132, 262, 286.
V. Bishop, 486, 889.
V. Boschino, 619, 758.
V. Bosworth, 482, 483, 486.
V. Boutwell, 199.
V. Briant, 100.
V. Brooks, 483, 486.
V. Brubaker, 157.
V. Bubuis, 480.
V. Carey, 583, 586.
V. Child, 100.
V. Cleary, 353, 583.
V. Clements, 465.
V. Clifford, 461.
V. Cobb, 380.
V. Cosseboom, 205, 365.
V. Costley, 606, 659.
V. Delaney, 238, 242.
V. Doughty, 95.
V. Drum, 161.
V. Eckerd, 590.
V. Fisher, 638.
V. Foran, 100.
V. Ford, 365, 845, 853.
V. Foster, 14.
V. Galligan, 524.
V. Garth, 43.
V. George, 14.
V. Goldberg, 43.
V. Harlow, 607, 616.
V. Harman, 681, 718.
V. Harris, 405.
V. Hazlett, 64.
V. Holmes, 487.
V. Houle, 891.
V. Kelley, 454.
V. Knapp, 42, 61.
V. Larrabee, 100.
V. Leonard, 583, 676.
978
TABLE OF CASES.
[EEFERENCES ABE TO PAGES.]
Com. V. Light, 64, 67.
V. Loeke, 870.
V. Lucas, 880.
V. McCann, 522.
V. McGorty, 743, 745.
V. McMahon, 639.
V. McManus, 43, 130, 141, 382.
V. McMurray, 392.
V. Marzynski, 61.
V. Miller, 652, 655-657.
V. Mudgett, 84.
V. Mullen, 380.
V. Pease, 501'.
V. Pflce, 483, 485, 487.
V. Rook, 61.
V. Ruddle, 85.
V. Rudert, 204.
V. Shepherd, 466, 467.
V. Snelling, 415, 416, 420, 424.
V. Switzer, 917.
V. Tadrick, 779, 780.
V. Tarr, 521.
V. Tolman, 822.
V. Turtle, 647.
V. Warner, 89, 90, 137, 876, 909.
V. Webster, 583, 587, 608, 622,
658, 659, 660, 661, 737,
711.
V. Wilson, 487, 595.
V. Winkelman, 8, 89, 90.
V. Yost, 13.
V. Zappe, 301.
V. Zuern, 89-91.
Comptoir D'Escompte v. Dresbach,
198.
Compton V. State, 644.
Comstock V. Dodge, 359.
V. Norton, 184.
V. Smith, 159, 162, 891.
Comstock'S Appeal, 89, 90, 881.
Ckjnaway v. Shelton, 359, 362.
Conde v. State, 496.
Condiff V. Kansas City, Ft. S. & G.
R. Co., 337.
Condon v. Missouri Pac. Ry. Co.,
232, 233.
Condultt V. Ryan, 351.
Cone V. Citizens' Bank, 408.
Conely v. Wood, 345.
Coney v. Pepperdine, 338.
V. State, 193.
Congdon v. Morgan, 302.
Congress & B. Spring Co. v. Ed-
gar, 303.
Conklin v. Parson, 465.
Conklin v. White Water Valley Ca-
nal Co., 856.
Connaghan v. People, 652.
Connecticut Mut. Life Ins. Co. v.
Hillmon, 8, 240, 481.
V. tJnion Trust Co., 810, 820.
Connelly v. Shamrock Benev. Soc,
799.
V. Walker, 99.
Conners v. State, 360, 698, 749.
Connolly v. Hamill, 17.
Connor v. Heman, 366.
V. Johnson, 7.
V. Wilkie, 286, 287, 798.
Connors v. Chingren, 65, 372.
Conrad v. Kelley, 195.
V. Kinzie, 298, 306, 860, 906.
V. Lindley, 386.
V. Pacific Ins. Co., 844.
Conrady v. Bywaters, 896.
Conran v. Sellew, 447, 449.
Consaul v. .Sheldon, 199, 227.
Consequa v. Willings, 89, 96.
Consolidated Coal Co. v. Maehl, 880.
Consolidated Traction Co. v.
Haight, 196, 239, 34L
Continental Imp. Co. v. Stead, 146,
382.
Continental Ins. Co. v. Horton, 368,
879, 881.
V. Pruitt, 860.
Continental Life Ins. Co. v. Rogers,
11.
V. Yung, 727.
Continental Nat. Bank of New York
V. Folsom, 280, 285, 286.
Converse v. Meyer, 880.
Conway v. Illinois Cent. R. Co., 169.
V. Jefferson, 763.
V. State, 620.
V. Town of Jefferson, 854.
V. Vizzard, 903.
Conwell V. Emrie, 884.
V. Mann, 381.
Cook V. Brown, 92, 93, 385, 726.
V. Canny, 897.
V. Dennis, 208.
V. Gill, 447.
v. Green, 420, 424, 432.
V. Hopper, 853.
V. Hunt, 357.
V. Mackrell, 6.
V. Sioux City & P. R. Co., 821.
V. State, 743, 800, 878, 914.
V. Whitfield, 84.
TABLE OF CASES.
939
[BEFfiBENCSS ABE TO PAOSS.]
Cook V. Wood, 362.
T. Woodrufe, 903, 916.
Cook's Lessee v. Carroll, 16.
Cook County v. Harms, 83, 362.
Cooke V. Plalsted, 234.
V. Cook, 195.
Coon V. People, 229.
V. Rlgden, 819.
Cooney V. State, 502.
Coopage V. Gregg, 881, 882.
Cooper V. Altlmus, 301.
v. Denver & R. G. R. Co., 81, 82.
V. Grand Trunk Ry. Co., 908.
■ft Johnson, 255.
v. Lee, 763.
V. Morris, 428, 429.
V. Mulder, 359.
V. Ord, 447.
V. Robertson, 906.
V. Sohlesinger, 823.
V. Smith, 909.
T. State, 154, 155, 424, 434, 748,
908.
Cooperative Life Ass'n v. McCon-
nioo, 200.
Coos Bay R. Co. v. Slglin, 190.
Coots V. Chamberlain, 903.
Copas V. Anglo-American Provision
Co., 299, 307.
Cepeland v. Hall, 28, 2,9.
Coppage V. Com., 266, 271.
CoqulUard v. Hovey, 23, 25.
Corbitt V. Mooney, 363.
Corby v. Butler, 11.
Corcoran v. City of Detroit, 889.
r. Harran, 814, 818.
Cordell v. New York Cent. & H. R.
R. Co., 406, 407.
Cordway v. State, 823.
Cormac v. Western White Bronze
Co., 274.
Cornelius v. Brawley, 381.
Corning v. Troy I. & N. Factory, 10.
■ Cornish v. Graff, 430.
V. Territory, 709.
Corrigan v. Connecticut Ins. Co.,
299.
Corrister v. Kansas City, St. J. &
C. B. Ry. CO., 217, 220.
Cortelyou v. McCarthy, 885.
Cortner v. Amick, 286.
Corwin v. Patch, 10.
Cory V. Silcox, 845.
Coryell v. Stone, 400, 849.
Corzine v. Morrison, 208.
Costley v. Com., 380.
V. Galveston City Ry. Co., 109.
Costly V. McGowan, 232.
Cothran v. Moore, 150.
Cotton V. State, 698, 738.
Cottrell V. Spiess, 208.
Cottrill V. Krum, 254.
Coughlin V. People, 569.
Counselman v. Collins, 167.
Courcier v. Graham, 888.
Courtland v. Tarlton, 890, 893.
Courtney v. State, 370.
Cousins V. Westcott, 822.
Cover V. Myers, 227.
Covert V. Irwin, 184.
Cowan V. State, 651.
V. Umbagog Pulp CO., 454.
Cowell V. Colorado Springs Co., 198,
821.
V. Phoenix Ins. Co., 185, 200.
Cowen V. Eatherly Hardware Co.,
888.
V. People, 902.
Cowger V. Land,^ 903, 906.
Cowie V. City of Seattle, 157, 158,
368.
Cowles V. Hall, 892.
V. Richmond & D. R. Co., 854.
Cowley V. Davidson, 199.
Cox V. Com., 482, 486, 487.
v. Highley, 415, 416, 420.
V. Knight's Adm'r, 726.
V. People, 173, 848, 865.
V. State, 63, 888.
Coyle V. Com., 761.
V. McNabb, 360.
Coyner v. Lynde, 857.
Crabtree v. Hagenbaugh, 424, 432.
Craft V. Com., 488.
Craig V. Frazier, 350, 903, 906.
Crail V. Crail, 301, 308.
Cram v. Gas Engine & Power Co.,
807.
Crandall v. First Nat. Bank of Au-
burn, 386.
Crane v. Crane, 844.
V. Morris, 96.
V. State, 195, 644.
Crane Lumber Co. v. Otter Creek
Lumber Co., 388.
Cranston V. New York Cent. & H.
R. R. Co., 459.
Cravens v. Wilson, 208.
Crawford v. Armstrong, 878.
V. Brown, 265, 582.
940
TABLE OF CASES.
[kepekences aee to pages.]
Crawford v. Morris, 303.
V. Nolan, 220.
V. Roberts, 77.
V. State, 238, 246, 445, 707.
Crawshaw v. Sumner, 178, 180.
Creed v. Commercial Bank of Cin-
cinnati, 210, 897.
v. People, 497, 498, 581, 589.
Creslnger v. Welch's Lessee, 849,
856, 860.
Cress V. Blodgett, 854.
Crews V. Lackland, 190.
V. People, 672, 673.
Cricket v. State, 879.
Crippen v. Hope, 329, 334, 335.
Criaman v. McDonald, 379, 851.
Croft V. State, 197.
Cronk v. Canfleld, 815, 823.
Cropper v. Pittman, 68.
Crosby v. Hutchinson, 349, 861.
V. Maine Cent. R. Co., 814, 822.
V. Wilson, 822.
Cross V. Lake Shore & M. S. R. Co.,
879.
V. Pearson, 832.
V. Tyrone Min. & Mfg. Co., 353.
Grossman v. Harrison, 208.
V. Lurman, 86.
Grouse T. Owens, 847, 854.
Crow v. State, 719.
Crowder v. Reed, 208.
Crowell V. People, 388, 446.
' V. State, 696.
T. Truax, 313.
Crowley v. State, 696.
Crumless v. Sturgess, 352.
Grutcher v. Schick, 912.
Grutchfleld v. St. Louis, K. C. ft N.
Ry. Co., 871.
V. State, 705.
Cumberland Coal & Iron Co. v. Scal-
ly, 160, 178.
V. Tilghman, 163,
Cumins V. Leighton, 916.
Gumming V. Brooklyn City R. Co.,
'860.
Cummings t. Stone, 888.
Cummins v. People, 853.
Cumpston v. McNair, 901.
Cuneo V. Bessoni, 532, 639.
Cunningham t. Horton, 891.
V. Seattle Electric Railway ft
Power Co., 801, 808.
V. State, 130, 162, 382.
V. Stejn, 766.
Cunningham v. Union Pao. Ry. Co.,
368, 382.
V. Washburn, 23, 25.
Curley v. Wyman, 853, 859.
Currie v. Clark, 267, 281.
V. Gunter, 302.
Currier v. State, 259, 371.
Curry v. Porter, 822.
V. State, 208, 292, 320.
Curtin v. Gephart, 301.
Curtis V. Hunting, 827,
V. Martz, 23, 25.
V. State, 441.
Cushman v. Cogswell, 152.
Cusick V. Campbell, 888.
Cutter V. Fanning, 184, 839.
Da Lee v. Blackburn, 843.
Dady v. Condit, 63, 68, 813.
Daggett V. Whiting, 891, 892.
Daily v. Nuttman, 798.
V. State, 49.
Dale V. Arnold, 413.
V. Harris, 838.
V. State, 45, 620.
Daley v. Bernstein, 395, 396.
Dallam v. Handley, 175, 176.
Dallas Consolidated Traction Ry.
Co. V. Hurley, 340.
Dallas Cotton Mills v. Ashley, 113,
258.
Dallas Rapid Transit Hy. Co. T.
Campbell, 183, 187.
Dallas & 0. C. Elevated Ry. Co. v.
Harvey, 188, 252.
Dallemand v. Janney, 812, 817.
Daly V. W. W. Kimball Co., 14.
Danforth v. State, 57.
Daniel v. Daniel, 101.
Daniels v. Glegg, 903, 908.
V. McGinnis, 906.
V. State, 65, 696.
V. Western ft A. R. Co., 210.
Danlelson v. Dyckman, 813, 822.
V. Gude, 449.
Darby v. Hayford, 299.
Darcy v. Spivey, 891.
Darling v. Gonklin, 855.
Darnell v. Griffin, 227.
v. State, 441.
Dassler v. Wisley, 216.
Daudt V. Keen, 447.
Dave V. State, 297.
Davenport v. Cummings, 800, 875.
TABLE OF CASES.
941
[EEPEEENCES AKE TO F*eiC«.;
Davenport Gas Light & Coke Co. v.
City of Davenport, 815, 816, 822.
David V. Bell. 879. •
V. Williamsburgh City Fire
Ins. Co., 300.
Davidson v. Kolb, 148.
V. Nicholson, 856.
V. Pittsburg, C. C. & St. Lj Ry.
Co., 368.
V. Stanley, 89, 95.
V. State, 296, 320, 780, 781.
V. Wallingford, 243.
Davies v. Miller, 883.
Davis V. Badders, 851.
V. Baker, 912.
V. Bigler, 301.
V. Bond, 206.
V. Brown, 871.
V. Button, 911, 916.
V. Central R. Co., 505, 510.
V. Council, 328, 334, 826.
T. Elliott, 299, 315.
V. Elmore, 132, 818.
V. Fish, 431.
V. Poster, 266, 278.
V. Purlow's Lessee, 380.
T. Gerber, 116, 117.
V. Germaine, 807.
V. Gilliam, 898.
V. Guarnieri, 901.
V. Hardy, 526.
V. Hays, 107.
V. Hilton, 841.
V. Jenney, 101.
V. Kingsley, 761.
V. Liberty & Camden Gravel
Road Co., 883.
V. Moore, 918.
V. People, 672. .
V. Perley, 918.
V. Peveler, 465.
V. Reamer, 878.
V. Richmond & D. R. Co., 377.
V. Robinson, 10, 796, 800.
V. Russell, 362.
V. Scripps, 447.
V. State, 359, 441, 531, 677, 721,
847, 849, 858, 860, 892.
V. Strohm, 169.
V. Tiernan, 291.
V. Walter, 852, 860.
V. Wilson, 263, 286.
Davis Wagon Co. v. Cannon, 233,
234.
Davison v. People, 47. 49, 54, 55.
Dawson v. Coston, 797.
V. Helmes, 10.
V. Palls City Boat Club, 240,
247.
V. Robinson, 301.
V. Sparks, 240, 888.
V. State, 320, C21-624, 628.
V. Williams, 870.
Daxanbeklav v. People, 357.
Day V. Citizens' Ry. Co., 64, 69, 85.
V. Crawford, 559.
Deal V. Bogue, 893.
V. McCormick, 227.
V. State, 518, 519.
Dean v. Blackwell, 557.
V. Chicago & N. W. Ry. Co., 823.
V. Ersklne, 18.
V. Hewit, 90.
V. State, 226, 554.
V. Tucker, 176.
V. Zenor, 805.
Deane Steam-Pump Co. v. Green,
912.
Deasey v. Thurman, 226, 228, 234.
Deaton v. State, 696.
Debney v. State, 90.
De Camp v. Mississippi & M. R. Co.,
206.
Decatur Cotton Seed Oil Mill Co.,
V. Johnson, 303.
Decatur Car Wheel & Mfg. Co. v.
Mehaffey, 240, 768, 777, 876.
Decatur Seed Oil Mill Co. v. John-
son, 904.
Decker v. Mathews, 822.
De Clerq v. Mungin, 852.
De Donato v. Morrison, 184, 365.
Deen v. Herrold, 301.
Deere v. Wolf, 298, 304, 322, 910.
Deerfield v. Northwood, 466.
Deering v. Collins, 179.
De Foe v. People, 577.
V. St. Paul City Ry. Co., 232,
233.
Deford v. Reynolds, 369, 897.
Deggs V. State, 620.
De Goey v. Van Wyk, 914.
De Graaf v. Wyckoff, 19.
De Hart v. Board Com'rs Johnson
Co., 766.
Dehority v. Paxson, 888.
Deig V. Morehead, 906, 908.
Deitch V. Schanning, 820.
Deltz V. Regnier, 369.
Dejarnette v. Com., 43.
942
TABLB3 OF CASES.
[EEFEBEN0E8 ABE TO PAGES.]
Delaney v. Hall, 339.
De Laureal v. Kemper, 299, 448.
De Lavalette v. Wendt, 803.
Delaware, L. & W. R. Co. v. Smith,
175.
Delaware River Steamboat Co. v.
Burlington & B. Steam Ferry
Co., 887.
Delhaney r. State, 831, 849.
De Los Santos v. State, 255.
Delude v. St. Paul City Ry. Co., 824.
Delvee v. Boardman, 104.
Demetz v. Benton, 871.
Dempsey v. Reinsedler, 339, 352.
Denham v. Cary, 865.
V. Trinity County Lumber Co
115.
Denison's Bx'r v. Wertz, 15.
Denman v. Bloomer, 339.
V. Johnston, 188, 336.
Denmead v. Coburn, 71.
Dennerline v. Gable, 856.
Dennis v. Alexander, 301.
Denny v. Williams, 12.
Densmore v. State, 664, 669.
Dent V. Portwood, 838, 849.
Denton v. Jackson, 162.
V. Mclnnis, 187.
Denver Tramway Co. v. Owens, 215.
Denver & R. G. Ry. Co. v. Harris,
396.
v. Lorentzen, 572.
V. Robinson, 208.
V. Roller, 368.
V. Ryan, 797, 825.
Derham v. Derham, 257.
De Ridder v. McKnigbt, 28, 29.
De St. Aubin v. Field, 75, 876, 891,
894, 911.
De Saulles v. Leake, 99.
Desberger r. Harrington, 179, I'Sl.
Deserant v. Cerillos Coal R. Co.,
151, 162.
Deshler v. Beers, 13.
Desmond-Dunne Co. v. Friedman
Doscber Co., 917.
Desnoyer v. L'Hereux, 853.
Desnoyers Shoe Co. v. Lisman, 911.
Detroit & M. R. Co. v. Van Stein-
burg, 466.
Devereux v. Champion Cotton
Press Co., 175, 899, 900.
Devlin v. Killcrease, 101.
v. People, 242.
Dewees v. Hudgeons, 292, 302.
Dexter v. McCready, 141.
Dial V. Agnew, 302.
Dibble V. Nash, 907.
V. Northern Assur. Co., 480.
Dick V. State, 814.
Dickens v. State, 56.
Dickenson v. State, 107.
Dickerman v. Quiney Mut. Fire Ins.
Co., 814.
Dickerson v. Johnson, 189, 207.
Dickey v. Shirk, 902.
Dickhut V. Durrell, 826.
Dickinson v. Beal, 359.
Dickson v. Moody, 340, 726.
v. Randal, 337, 885.
Didier v. Pennsylvania Co., 89.
Diefenback v. Stark, 29.
Diel V. Camp, 886.
Digby V. American Cent. Ins. Co.,
255, 257.
Digging V. Watson, 858.
Dignan v. Spurr, 232.
Dikeman v. Arnold, 232, 362.
Dill V. State, 226.
Dillingham v. Bryant, 402.
V. Fields, 383, 387, 391.
Dillon V. McRae, 354, 355.
Duly V. Omaha & St. L. Ry. Co.,
886.
Dimmlck v. Baboock, 299.
Dingee v. Jackson, 310.
V. Unrue's Adm'x, 190, 206.
Dinges v. Branson, 864.
Dinsmore v. State, 149, 479, 762.
Dirimple v. State Bank, 11.
Dishon V. Schorr, 896.
District of Columbia v. Robinson,
6, 130.
Divver v. Hall, 599.
Dix V. Brown, 196.
Dixon V. New England R. Co., 187.
V. State, 265, 272, 281, 410, 510,
883.
V. Stewart, 298.
Doan V. Duncan, 226.
V. St. Louis, K. & N. W. Ry
Co., 178, 181.
V. State, 607.
Dobbis V. Cates' Estate, 240, 250.
V. Humphreys, 240.
Dobson V. Cothran, 811.
V. State, 167, 168, 268, 432, 744,
911.
Dockery v. Tyler Car & Lumber
Co., 768, 769.
TABLE OF CASES.
943
[EEFEBENCES AEE TO PAGES.]
Dodd V. Moore, 1, 270, 276, 505, 518.
Dodds V. Estill, 912.
Dodge V. Brown, 159, 175.
V. Chandler, 817.
V. Gaylord, 10.
V. O'Dell's Estate, 392.
V. People, 202, 819.
V. Rogers, 380, 390.
Dodson V. State, 229.
Doe V. Peck, 380.
Doe d. Freeman v. Edmunds, 199.
Doe d. Martin v. King's Heirs, 340.
froe a: School Com'rs v. Godwin,
$39, 846.
Uoe d. Stephens v. Roe, 389.
Doe d. Strickland v. Strickland, 95.
Doe d. Vick v. Peck, 390.
Doe d. Ward v. Herrin, 300.
Doggett V. Jordan, 265.
V. Ream, 389.
V. Simms, 450.
Doherty v. Morris, 914.
Dolan V. Delaware & H. Canal Co.,
243.
V. State, 445.
Doll V. State, 301.
Dbllarhide v. Mabary, 447.
Dollfus V. Frosch, 26.
Domlnguez v. Dominguez, 450.
Dominick v. Randolph", 6, 754.
Donahue v. Coleman, 333.
V. Egan, 240, 242.
V. New York Cent. & H. R. Co.,
804. ■
V. Windsor County M. Fire
Ins. Co., 292, 296, 319, 321,
322.
Donald v. State, 194, 369.
Donaldson v. State, 583.'
Dondero v. Frumveller, 10.
Donnelly v. State, 130.
Donners v. State, 749.
Doon T. Ravey, 96. .
Dooner v. Delaware & H. Canal Co.,
197.
Dorgan v. State, 600, 602.
Dorr V. Simerson, 219.
Dorsett v. Crew, 263, 265.
, Dorsey v. McGee, 182.
V. State, 77.
Dorsey Printing Co. t. Gainesville
Cotton Seed Oil Mill & Gin Co.,
194, 232.
Doss V. Com., 42.
V. Jones, 390, 399.
Dotson V. State, 338.
Doty V. O'Neii, 914, 916. '
Doud V. Reid, 897.
Dougherty v. Missouri R. Co., 910.
Doughty V. Hope, 175, 340.
Douglas V. Neil, 879.
V. Wolf, 337, 339, 885.
Douglass V. Geiler, 86, 292, 299, 320-
322, 349.
V. McAllister, 360, 378, 895.
V. Trask, 472.
Dovale v. Ackerman, 803.
Dow V. Merrill, 311.
Downey v. Abel, 872.
V. Day, 856.
Downing v. Bain, 20.
V. Brown, 63.
V. Glenn, 799, 807.
V. Sta^e, 297.
Dows V. Rush, 296.
Dowzelot V. Rawlings, 415, 418, 420.
Doyk» V. Boston & A. R. Co., 95.
V. Commissioners of Baltimore
County, 339.
V. Dobson, 760, 884.
V. People, 198.
V. Stevens, 829.
Doysher v. Adams, 188.
Dozenback v. Raymer, 902, 905.
Dozier v. Jerman, 829, 830.
Drake v. Curtis, 184.
V. State, 5.
Dreher v. Town of Fitchburg, 528.
Drennen v. Smith, 83.
Drew V. Andrews, 422.
v. Towle, 14.
Drey v. Doyle, 299.
Driggs V. Phillips, 461.
Drinkout v. Eagle Machine Works,
83.
Driscoll V. People, 299, 305, 903, 907.
Driskill v. State, 130.
. Drum V. Stevens, 889.
Drury v. White, 292.
Druse v. Wheeler, 86.
Duberley v. Gunning, 95.
Duck V. St. Louis & S. W. Ry. Co.,
183.
Duckworth v. State, 367.
Duckworth's Ex'rs v. Butler, 159.
Dudley v. State, 370, 901.
Duffany v. Ferguson, 880.
Duffy v. People, 32, 43.
Dugan V. Thomas, 806.
Duggan V. State, 265.
944
TABLE OF CASEB.
[references are to pages.]
Dugger V. McKesson, 817, 823.
Duggins.v. Watson, 840, 855, 857.
Duke V. State, 781.
Duke of Newcastle v. Broxtowe,
878
Duley V. Kelley, 338.
Dumn V. Rothermel, 9, 19.
Dunbar v. Briggs, 152.
Dunbier v. Day, 184.
Duncan v. People, 258.
V. Sherman, 353, 382, 386.
; V. State, 415.
I Duncombe v. Powers, 298, 763, 805.
Dunlap V. Hearn, 64.
V. May, 897.
V. Robinson, 342.
Dunlop V. Patterson, 300, 560.
Dunn V. Dunnaker, 159.
V. Moody, 891.
V. Northeast Electric Ry. Co.,
86.
V. People, 180,560,652,659,661.
V. State, 698.
Dunnington v. Prick Co., 821.
Dupont V. McAdow, 199.
Dupree v. State, 391.
V. Virginia Home Ins. Co., 270,
275, 300.
Dupuis V. Thompson, 821.
Dupuy V. Burkitt, 224.
Durand v. Grimes, 297.
Du Rant V. Du Rant, 302.
Durant v. Fish, 296.
V. Lexington Coal Min. Co.,
465, 471.
V. People, 499, 578.
Duren v. Kee, 5.
Durfee v. Moran, 448.
V. Newkirk, 900.
Durham v. Goodwin, 905.
V. State, 379.
Durkee v. Marshall, 89.
Durrett v. State, 304.
Du Souchet v. Dutcher, 295, 296,
298.
Duthie V. Town of Washburn, 354.
Duvall V. State, 338.
Dvorak v. Maloch, 226.
Dwelling House Ins. Co. v. Dowdall,
887.
Dwight V. Germania Life Ins. Co.,
15.
Dwinelle v. Henriquez, 902.
Dwver v. Continental Ins. Co., 865,
890.
V. Fuller, 822.
Dyer v. Brannock, 255, 257.
V. Dyer, 298.
Dyrely v. State, 255, 256.
E.
E. A. Moore Furniture Co. v. W. &
J. Sloane, 234.
Eagle & P. Mfg. Co. v. Gibson, 343.
Eames v. Blackhart, 174.
V. Rend, 362.
Earll V. People, 369, 482, 483, 661
669, 670.
Earl's Lessee v. Shoulder, 888.
Early v. Garland's Lessee, 362.
Earp V. Bdgington, 101, 104, 529.
Easley v. Craddock, 413.
V. Valley Mut. Life Ass'n, 865,
878.
Bast V. Crow, 198.
East Mt. L. Coal Co. v. Schuyler
549.
East River Bank v. Gedney, 823.
East St. Louis Connecting Ry. Co.
V. Allen, 556.
V. O'Hara, 896.
East St. Louis Electric Ry. Co v
Stout, 805, 808.
East St. Louis Packing & Provision
Co. V. Higjitower, 182.
East Tennessee, V. & G. R. Co. v.
Bayliss, 382, 383. 387.
V. Cary, 821.
v. Duffleld, 212.
V. Fain, 340, 354.
V. Fleetwood, 297, 317.
V. Lee, 216, 218.
V. Gurley, 340, 354.
V. Thompson, 154.
V. Top'pins, 213, 214, 799.
East Tennessee & W. N. C. R. Co.
V. Winters, 454.
Eastern Transportation Line v.
Hope, 90, 341.
Eastman v. Curtis, 253, 360.
Eaton V. Carruth, 232, 832.
v. New England Telegraph Co.,
305.
V. Smith, 23-25.
Eckels V. State, 340, 908.
Eckelund v. Talbot, 867.
Eddingfield v. State, 891.
Eddy V. Chace, 18.
V. Gray, 101, 118.
V. Howard, 813.
T. Lowry, 518.
TABLE OF CASES.
945
[EEFEBENOES ABE TO FACES.]
Eddy V. Still, 820.
EdelhofE v. State, 887.
Edelin v. Sanders, 886.
Edelmann v. St. Louis Transfer
Co., 216, 254, 255.
Edens v. Hannibal & St. J. R. Co.,
459.
V. State, 647.
Edgar v. McArn, 228.
V. State, 383, 881.
Edge V. Keith, 468.
Edgell V. Francis, 813, 822, 824.
Edgington v. United States, 581.
Edmonds v. State, 588.
Edmondson v. Anniaton City Land
Co., 152.
V. Machell, 884.
Edmunds v. Wiggin, 415, 422.
Educational Ass'n v. Hitclicock, 853,
859.
Edwards v. Campbell, 188.
V. Carr, 295.
V. Dettenmaier, 362.
V. Goldsmith, 25.
V. Porter, 899.
V, St. Louis, K. & S. Ry. Co.,
185, 189.
V. Smith, 24, 276, 285. 309, 613.
V. State, 43, 291, 299, 317, 324.
V. Territory, 84.
V. Whyte, 776.
Edward's Lessee v. Darby, 227.
Egan V. Paendel, 299.
Eggers V. Eggers, 532, 533, 540.
Eggett V. Allen, 195, 917.
Eggler v. People, 460.
Eggleston v. Boardman, 903.
V. Castle, 906.
Ehrlich v. State, 267.
Eichel V. Senhenn, 304, 796.
Eiland v. State, 382-385, 387, 389,
391, 392, 881.
Einseidler v. Whitman Co., 198,
368.
Eister v. Paul, 10, 888.
Ela V. Cockshott, 329, 332.
Elam V. Badger, 896.
Eldred v. Hazlett's Adm'r, 897.
v. Oconto Co., 383, 384, 387,
Eldredge v. Sherman, 380.
Eldridge v. Hawley, 461.
Elgin, J. & B. Ry. Co. v. Raymond,
226.
Elkhart Mut. Aid, B. & R. Ass'n v.
Houghton, 852, 857, 903, 906.
60— Ins. to Juries.
Ellen V. Ellen, 869.
Ellebarger v. Swiggett, 832.
EUerbee v. State, 64, 105, 194, 687.
Ellers V. State, 194.
Elliott V. Piersol's Lessee, 338.
V. Van Buren, 147.
Ellis V. People, 1, 262, 266, 270. 279,
810, 817.
V. Simonds, 739.
V. Spurgin, 727.
V. State, 698.
V. Tone, 902.
Ellison V. Dove, 884.
Elmborg v. St. Paul City Ry. Co,
817.
Elmore v. State, 644.
Elton V. Markham, 823.
Elwood V. Chicago City Ry. Co., 147.
Ely V. Early, 450.
V. James, 26.
V. Tesch, 600, 602.
Emerson v. Ross' Ex'x, 805, 818.
V. Santa Clara Co., 358.
Emery v. Owings, 17.
V. State, 654, 656, 657.
V. Vinall, 296.
V. Whltaker, 431.
Emison v. Ouyhee Ditch Co., 194.
Emmerson, Talcott & Co. v. Skid-
more, 895.
Emmons v. Alvord, 64, 74, 817, 818.
Emory v. Addis, 805, 872.
• V. Hazard Power Co., 367.
V. Smith, 610.
Empire Spring Co. v. Edgar, 904.
Endowment Rank of K. P. v. Steele,
790, 913.
Engeman v. State, 329.
Engers v. State, 779, 781.
England v. Vandermark, 805.
Engle V. State, 89, 819, 822.
Engleman v. State, 742.
English V. Caldwell, 847, 853, 899.
V. Devarro, 856.
English's Ex'r v. McNair's Adm'ra,
851.
Engmann v. Immel, 84
Ennis y. Pullman's Palace Car Co.,
896.
Enright v. City of Atlanta, 821.
Ephland v. Missouri Pac Ry, Co.
196, 530.
Eppert V. Hall, 298.
Epps V. State, 531, 532, 538, B40,
583, 903.
946
TABLE OF CASEB.
[BEFEEENCES ABE TO PAGES.]
Eppstein v. Thomas, 232.
Equitable Fire Ins. Co. v. Trustees
of Posterville C. P. Church, 268,
271, 273.
Equitable Life Ins. Co. v. Hazle-
wood, 188.
Brb V. German-American Ins. Co.,
6, 218, 225.
Brben v. Lorillard, 467.
Erd V. City of St. Paul, 853, 858.
ErnuU v. Whitford, 412.
Eskridge v. State, 886.
Esser v. Linderman, 16.
Estate of Calkins, 195,
Estate of Cunningham, 169.
Estate of Spencer, 406.
Esterly v. Van Slyke, 183.
Esterly Harvesting Mach. Co. v.
Frolkey, 208.
Estes V. Boothe, 16, 17.
V. Fry, 299, 854.
Esty V. Snyder, 912.
Etchepare v. Aguirre, 407.
Etting V. Bank of United States, 23.
Eureka Fertilizer Co. of Cecil Coun-
ty V. Baltimore Copper, Smelting
& Rolling Co., 232.
Evans v. City of Joplin, 74.
V. Eaton, 844.
V. Foreman, 530.
V. Foss, 409.
V. George, 241.
V. Givens, 389, 393.
V. Howell, 884.
V. Lafeyth, 390, 392.
V. Lohr, 838.
V. Merritt, 884.
v. Montgomery, 390, 398.
V. Negley, 23.
V. St. Louis, I. M. & S. Ry. Co.,
563.
V. St. Paul & S. C. R. Co., 799.
V. State, 698, 699, 886, 897, 907.
V. Town of Trenton, 786.
Evans Garden Cultivator Co. v.
Missouri, K. & T. Ry. Co., 346.
Evanston v. Gunn, 874, 910.
Evansville & I. R. Co. v. Darting,
884.
Evansville & T. H. R. Co. v. Crist,
328, 332, 914.
Evarts v. Burton, 362.
Everett v. Sumner, 808, 820, 825.
V. Williamson, 381, 817, 820.
Evers v. Shumaker, 232.
Eward v. Lawrenceburgh & U. M.
R. Co., 840.
Ewing V. Runkle, 172.
V. Sanford. 297, 304, 383.
V. Scott, 832, 835.
Exchange Bank v. Cooper, 395.
Eyser v. Weissgerber, 17, 815, 865,
868.
F.
F. Dohmer Co. v. Niagara Fire Ina,
Co., 567.
Fagal V. Page, 879.
Fahey v. State, 81.
Fain v. Cornett, 159.
Fairbanks v. Bloomfield, 19.
V. Jacobs, 16.
v. Long, 448, 871.
Faircloth v. Isler, 216.
Fairfield v. Barrette, 887.
Pairgrieve v. City of Moberly, 188.
Fairly v. Fairly, 15. 177.
Falls Wire Mfg. Co. v. Broderick,
21.
Fame Ins. Co. v. Mann, 172.
Fant V. Wright, 152, 187, 206, 367.
Paris V. Hoberg, 10.
Parish v. Reigle, 362.
Parley v. Pettes, 28.
V. Ranck, 596.
V. State, 417, 729, 819.
Farlow v. Town of Camp Point,
194.
Farmer v. Farmer, 292, 299.
V. Thrift, 275.
Farmers' Bank v. Butterfield, 450.
Farmers' Banking Co. v. Key, 183.
Farmers' Loan & Trust Co. v.
Montgomery, 196.
Farmers' Mut. Fire Ins. Co. v. Gar-
gett, 853.
Farmers' & Merchants' Bank v. Har-
ris, 104, 727.
Farmers' & Merchants' Bank of
Ainsworth v. Upham, 188.
Farmers' & Traders' Nat. Bank v.
Wooden, 171, 876, 909, 910.
Farnan v. Childs, 6.
Parquhar v. Dallas, 292, 302.
V. Toney, 84.
Parr v. Puller, 195.
Parrand v. Aldrlch, 199.
Parrell v. People, 614.
Farris v. Bennett's Ex'rs, 302.
TABLE OF CASES.
947
[EEFEBENCBS ABE TO PAGES.]
Farrish v. State, 338.
Farwell v. Salpaugh, 888.
V. Warren, 778, 784.
Fassett v. Town of Roxbury, 908.
Fasshender V. Western Transit Co.,
300, 305, 306.
Fasslnow v. State, 677.
Fassnacht v. Emsing Gagen Co.,
100.
Fath V. Thompson, 381.
Faulkner v. Paterson Ry. Co., 503.
V. Territory, 445, 498, 510, 511,
565.
Faxon v. Jones, 913.
Fay V. O'Neill, 381.
Feagan v. Cureton, 355.
Feary v. Metropolitan Street Ry.
Co., 166, 393.
Feibelman v. Manchester Fire As-
sur. Co., 424, 432-434.
Feineman v. Sachs, 196.
Feist V. Boothe, 773.
Felix V. State, 582, 583.
Felker v. Douglass, 194.
v. State, 201, 510, 575.
Fell V. Dial, 199.
Fells Point Sav. Inst. o£ Baltimore
V. Weedon, 385.
Felton V. State, 613.
Fenelon v. Butts, 338.
Ferguson v. Beadle, 908.
V. Fox's Adm'r, 167, 267, 28G.
V. Graves, 813, 843.
V. Hosier, 891, 892.
V. Porttf, 99, 108.
Y. State, 670.
V. Tucker, 11.
Feriter v. State, 278.
Fernandes v. McGinnis, 773.
Fernhach v. City of Waterloo, 848,
852.
Ferneau v. Whitford, 189.
Ferrall v. Broadway, 485, 501.
Ferris v. Chicago, S. F. & C. R. Co.,
906.
V. State, 122.
Ferson v. Wilcox, 816, 822, 824.
Fessenden v. Doane, 147, 163, 234,
876, 905.
Festerman v. Parker, 23, 24, 28.
Fick V. Mohr, 864, 913.
Fidelity Mut. Life Ass'n v. Jef-
fords, 502.
Field V. Crecelius, 854, 859.
Fields V. Carlton, 349.
Fields V. Wabash, St. L. & P. Ry.
Co., 84.
Fife V. Commonwealth, 304.
Finan v. Babcock, 897.
Finch V. Bergins, 526.
V. State, 8.
Finck V. Schaubacher, 190.
Finerty v. Fritz, 908.
Fink V. Algermissen, 167.
V. 'Phelps, 227.
V. Regan, 854, 859.
Finley v. Hunt, 560.
Finnell v. Walker, 82.
Finney v. State, 257.
Finks V. Cox, 773.
Fiore v. Ladd, 232.
Fire Ass'n of Philadelphia v. Hog-
wood, 199.
First Baptist Church v. Rouse, 89,
98, 130.
First Nat. Bank v. Breese, 888.
First Nat. Bank of Arkansas City
V. Skinner, 183.
First Nat. Bank of Burlington v.
Hatch, 908.
First Nat. Bank of Decorah v. Ho-
lan, 89, 90.
First Nat. Bank of Denver v. Low-
rey, 822.
First Nat. Bank of Ft. Scott v. Lil-
lard, 196.
First Nat. Bank of Lanark v. Eite-
miller, 3.
First Nat. Bank of Madison v. Car-
son, 359.
First Nat. Bank of Marshall v. My-
er, 776.
First Nat. Bank of Porter Co. v.
Williams, 836.
First Nat. Bank of Springfield v.
Dana, 14, 22.
V. Gatton, 214.
First Nat. Bank of Warsaw v. Cur-
rie, 176.
First Unitarian Soc. of Chicago v.
Faulkner, 874.
Fish v. Chicago, R. I. & P. Ry. Co.,
468, 802, 826, 903.
V. Smith, 424-426, 430.
Fisher v. Central Lead Co., 183, 195,
208, 213.
V. Filbert, 301.
V. Fisher, 806.
V. Larick, 301, 352.
V. Monroe, 300, 315.
948
TABLE OF CABlfiS.
[KErERENCES ABE TO PAGES.]
Fisher v. People, 54, 159, 380, 420,
424, 425, 556, 560, 914.
V. Stevens, 359, 361.
V. United States, 847.
Fisher's Case, 88, 90.
Fisher's Ex'r v. Duncan, 109.
Fisli V. Chicago, M. & St. P. Ry. Co.,
183, 186.
V. Greeley Electric Light Co.,
195.
Fitch V. Belding, 331, 333.
V. Livingston, 823.
Fitzcox V. State, 482.
Fitzgerald v. Anderson, 11.
V. Barker, 898.
v. Fitzgerald, 286.
V. Goff, 296, 885.
V. Jerolaman, 328.
V. Long Island R. Co., 240.
V. Meyer, 167.
Fitzpatrick v. Fain, 101, 105.
V. Hays, 304.
V. State, 134, 887, 914.
V. Woodruff. 605.
Fitzwater v. Stout, 12.
Flanagan v. Boggess, 77.
Flanders v. Colby, 93.
V. Stark. 77.
Flanigin v. State, 482, 486, 487.
Flannery v. St. Louis, 1. M. & S.
Ry. Co., 155.
V. Van Tassell, 846, 847, 854.
Fleckenstein v. Inman, Paulson &
Co., 199.
Fleischmann v. Miller, 216.
Fleming v. Fleming, 799.
V. Latham & Co., 822, 824.
V. Potter, 798.
-V. Ussery, 839, 846.
V. Wilmington & W. R. Co., 64.
Flemister v. State, 821. 902, 905.
Fletcher v. Howard, 833.
V. Milburn Mfg. Co., 256, 910.
V. Post, 196.
V. South Carolina & G. E. R.
Co., 204, 390, 877, 911.
V. State, 620.
Flint V. Nelson, 333.
Flint-Walling Mfg. Co. v. Ball, 255,
256, 871.
Florence Sewing Mach. Co. v. Gro-
ver & Baker Sewing Mach. Co.,
415-417, 420.
Flores v. Maverick, 767.
Florida, C. & P. R. Co. v. Lucas, 99,
105.
Florida Ry. & Nav. Co. v. Webster,
227.
Flower- V. Beveridge, 356.
Flowers v. Flowers, 238, 241, 242.
V. Helm, 868,
Floyd V. Ricks, 811.
v, State, 882.
Flynn v. New York El. R. Co., 604,
605.
V. St. Louis & S. F. Ry. Co.,
178, 180.
V. Union Bridge Co., 167.
Flynt v. Bodenhamer, 531, 535. ,
Fogal V. Page, 882.
Fogg V. Littlefleld, 120.
Foley V. Loughran, 89, 90.
V. Riverside S. & C. Co., 65.
Folk V. Wilson, 227.
Follmer v. McGinley, 89, 96.
Folly V. Vantuyl, 300. ■
Folsom V. Brawn. 882.
V. Plumer, 28.
Forbes v. Howe, 121.
V. Jason, 2.
V. Thomas, 883.
Ford V. City of Cameron, 3.
V. Ford, 845, 849.
V. McBryde, 302, 327.
V. Monroe, 300.
V. State, 436, 543, 647, 904.
Fordham v. State, 816.
Fordyce v, Beecher, 773.
V. Jackson, 297.
V. Russell, 821.
V. Yarborough, 341.
Forest v. Crenshaw, 833.
Forgey v. First Nat. Bank ot Cam-
bridge, City, 881.
Forman v. Ambler, 152.
Formby v. Pryor, 292.
Forney v. Ward, 197.
Forrest v. Hanson, 417, 418.
V. State, 296.
Forsyth v. Bower, 911.
Fort V. Barnett, 869.
Ft. Scott, W. & W. Ry. Co. v. Fort-
ney, 870.
V. Jones, 898.
V. Kanacker, 884.
Ft. Worth Pub. Co. v. Hitson, 67,
886.
Ft. Worth & D. C. Ry. Co. v. Great-
house, 858.
TABLE OF CASES.
949
[KEFERENCES ABE TO PAGES.]
Ft. Worth & D. C. Ry. Co. v. Hog-
sett, 909.
V. Mackney, 893.
V. Peterson, 187, 211, 913.
Fortson v. Mikell, 298, 320.
Forty-Second St., M. & St. N. Ave.
Ry. Co. V. Hannon, 199.
Forwood V. State, 48, 51.
Fossdahl v. State, 779, 781.
Foss-Schneider Brewing Co. v. Mc-
Laughlin, 884.
Foster v. Berg, 22.
V. Berkey, 813, 817.
V. People, 359.
V. Ropes, 838.
V. State, 296, 324, 746.
V. Steele, 89, 90, 95.
V. Turner, 404, 422.
Foulk V. State, 700.
Fowler v. Colton, 90.
V. Gilbert, 853.
V. Hoffman, 380, 385.
V. Lee, 110.
V. Smith, 138.
V. State, 48, 49, 53, 154.
V. Tuttle, 892.
V. Wallace, 169.
Fox V. Brady, 376.
V. Fox, 301.
V. Peninsular White Lead &
Color Works, 425, 531.
V. Savannah & C. R. Co., 302.
v. Spring Lake Iron Co., 9.
V. Stockton Combined H. & A.
Works, 227.
V. Utter, 192.
Foxwell V. State, 332, 613, 614.
Foye V. Southard, 380.
Fraim v. National Fire Ins. Co.,
859.
Frame v. Badger, 100, 251.
V. Murphy, 357.
Francis v. State. 780.
Frandsen v. Chicago, R. I. & P. Ry.
Co., 455.
Frank v. Frank, 205.
V. Grand Tower & C. Ry. Co.,
170.
V. Grimes, 845, 847.
V. Metropolitan St. Ry. Co., 366.
V. Williams, 407, 887.
Franke v. Riggs, 391.
Frankel v. Coots, 907.
Frankfurter v. Bryan, 739.
Franklin v. Claflin, 798.
V. Smith, 865, 890.
Franklin v. State, 48, 49, 52, 287,
288, 595, 750, 827.
Franklin Ins. Co. v. Culver, 855.
Fraser v. Haggerty, 243, 556, 558,
799.
V. Jennison, 380.
Frauenthal v. Bridgeman, 805.
Frazer v. Howe, 11.
Frazier's Ex'r v. Praytor, 110.
Freckling v. Rolland, 800.
Frederick v. Ailgaier, 164.
v. Ballard, 159.
V. Gaston, 6.
V. Kinzer, 182, 190, 196.
Fredericks v. Judah, 845.
V. Northern Cent. R. Co., 95.
Freeborn v. Norcross, 841.
Freeman v. Coleman, 379.
V. Exchange Bank, 77.
V. Hamilton, 292, 322.
V. State, 497, 545.
V. Weeks, 407.
V. Wilkerson, 448, 449.
Freeze v. De Puy, 847, 849.
Freiberg v. Elliott, 900.
v. Johnson, 904, 910.
French v. Millard, 346, 884.
V. Sale, 64.
V. State, 635.
V. White, 823.
Freoberg v. Elliott, 317.
Friberg v. Johnson, 295.
Frick V. Wilson, 296, 302.
Pridenberg v. Robinson, 401.
Friedberg v. People, 482.
Friedrich v. Territory, 127.
Pripp V. Williams, Birnie & Co., 78.
Frisbee v. Timanus, 857.
Frisby v. Withers, 727.
Frizell V. Cole, 527, 569-571.
Frost V. Grizzly Bluff Creamery
Co., 815.
V. Inman, 839.
V. State, 154, 157, 203, 240, 249.
Froun v. Dayis, 878.
Fruchey v. Eagleson, 275.
Fruin v. Crystal Ry. Co., 24.
Fruit Dispatch Co. v. Russo, 152.
Fry V. Currie, 300.
V. Leslie, 225.
V. Shehee, 262, 266, 270, 280.
V. State, 896.
V. Tilton, 802.
Frye v. Ferguson, 287, 763.
V. State, 732.
950
TABLE OF CASES.
[RBFEKENCES ARE TO PAGES.]
Fuhrman v. City o( Huntsville, 125,
Fuhs V. Osweiler, 222.
Fulcher v. State, 292, 319, 613, 615.
V. White, 102.
Fulgham v. Bendy, 839.
Fullam V. Rose, 597.
Fullen v.Coss, 84.
Pullenwider v. Ewing, 317, 819, 822.
Fuller V. Bradley, 29.
V. Coates, 341.
V. Gray, 153, 157.
V. Ruby, 838.
V. State, 488.
V. Wilson, 856.
Fuller's Case, 36.
Pullerton v. St. Louis, I. M. & S.
Ry. Co., 221.
Fulton V. Maccracken, 72, 236.
V. Ryan, 233.
Fulton Ins. Co. v. Goodman, 886.
Fulwider v. Ingels, 100, 204, 726.
Funk V. United States, 723.
Funston v. Chicago, R. I. & P. R.
Co., 910.
Furgeson v. Brown, 159.
Furhman v. City of Huntsville, 126.
Gablick v. People, 742.
Gaff V. Greer, 417, 421.
V. Stern, 447.
Gaffney v. St. Paul City Ry. Co.,
147, 150.
Gafford v. State, 99, 113.
Gage V. Averill, 447.
V. Louisville, N. O. & T. Ry.
Co., 773.
V. Myers, 14.
V. Payne, 78.
Gaines v. Bard, 195.
V. Harvin, 839.
Gale V. Rector, 911, 915.
Galena & C. U. R. Co. v. Jacobs,
389.
Gallagher v. Bowie, 305.
V. Kilkeary, 11.
v. McMullen, 336.
V. White, 307.
V. Williamson, 226, 228, 234.
Gallaher v. State, 635, 733, 906.
Gallatin Turnpike Co. v. State, 25.
Gallaway v. Burr, 895, 896.
Galloway v. Corbitt, 427.
v. Hicks, 222.
Galloway v. McLean, 357, 383.
V. State, 749.
Gallup V. Fox, 20.
Galpin v. Wilson, 148, 379.
Galveston, H. & S. A. Ry.' Co. v.
Arispe, 308.
v. Chittim, 897.
v. Daniels, 916.
V. Dunlavy, 268.
V. Edmunds, 303.
V. English, 102, 113, 367, 913.
V. Herring, 184.
V. Johnson, 367, 894, 897, 901.
V. Knippa, 109, 111.
v. Kutac, 239, 788.
V. McGraw, 367.
V. McMonigal, 303.
V. Morris, 367.
V. Neel, 401.
V. Porfert, 881.
V. Schrader, 339.
V. Smith, 221, 870.
V. Sweeney, 187, 188.
V. Tuckett, 375.
V. Waldo, 72, 308.
V. Williams, 367.
V. Worthy, 317.
Galveston Land & Imp. Co. v. Le-
vey, 882.
Galveston Oil Co. v. Malin, 317.
Galvin v. Palmer, 450.
Gamble v. Mullin, 224.
Games v. Stiles, 130.
Gann v. State, 13, 196, 360, 370,
699, 783.
Gannon v. Stevens, 559.
Ganson v. Madigan, 23.
Gantz V. Clark, 852, 856.
Garber v. Morrison, 832.
V. State, 298.
Garcia v. State, 195, 749.
Gardenhire v. State, 439, 646, 824.
Gardner v. Clark, 22, 23, 34.
V. Cooper, 913.
V. Pickett, 300.
V. Stell, 18.
Garfield v. State, 524.
Garland v. Wholebau, 827.
Garllck v. Bowers, 339.
V. State, 681.
Garner v. Butcher, 296.
V. State, 802.
Garoutte v. Williamson, 828.
Garrard v. Reynolds' Lessee, 90, 97.
Garretson v. Becker, 83.
TABLE OF CASES.
951
[BEFEBENCES ABE TO PAGES.}
Garrett v. Jackson, 310.
V. State, 802, 849.
Garrett's Adm'rs v. Garrett, 243,
244.
Garrlgus v. Burnett, 821.
Garrison v. State, 734.
V. Wilcoxson, 785.
Garrity v. Higgins, 334.
Garten v. Union City Nat. Bank,
287, 829.
Garvey v. Wayson, 339, 345.
Garza v. State, 422.
Gas Co. V. Wheeling, 159. ISO, 339,
349.
Gassert v. Bogk, 802, 819.
Gastlin v. Weeks, 304.
Gates V. Manny, 916.
Gatliff V. Territory, 366, 369.
Gatlin v. State, 441, 904.
Gaty V. Clark, 447.
V. Sack, 877.
Gaudette v. Travis, 64, 300, 392, 393.
Gavigan v. Evans, 86.
Gawtry v. Doane, 470.
Gearing v. Lacher, 167.
Geary v. People, 819.
Gedney v. Gedney, 237, 915.
Gee V. Culver, 740.
V. Moss, 860.
Geer v. Durham Water Co., 189.
Gehman v. Brdman, 239.
Geiger v. Welsh, 352, 382.
Gelvin v. Kansas City, St. J. & C.
B. Ry. Co., 180.
Gentry v. Bargis, 387.
V. State, 319, 522.
George v. Norrls, 469.
V. Smith, 152.
V. Stubbs, 96.
V. Swafford, 182.
V. Wabash Western Ry. Co.,
167, 190.
George W. Roby Lumber Go. v.
Gray, 5, 6.
Georgia Pac. Ry. Co. v. Propst, 10,
155.
V. West, 806.
Georgia R. Co. v. Cole, 456.
V. Lawrence, 191.
V. Thomas, 905.
Georgia Railroad & Banking Co. v.
Oaks, 191.
Georgia & A. R. Co. v. Rawson, 9:i.
Gerdes v. Christopher & Simpson
Architectural Iron & Foundry Co.,
556.
Gerdine v, State, 376.
Gerhauser v. North British & Mer-
cantile Ins. Co., 390, 392, 396.
Gerke v. Fancher, 84.
German Fire Ins. Co. v. Columbia
Encaustic Tile Co., 298, 332.
German Nat. Bank of Hastings v.
Leonard, 292, 300, 320.
German Sav. Bank of Davenport v.
Citizens' Nat. Bank, 454, 456.
Gerren v. Hannibal & St. J. R. Co.,
76.
Gessley t. Missouri Pac. Ry. Co.,
216.
Gettinger v. State, 300,
Gheen v. Heyburn. 311.
Giard Fire & Marine Ins. Co. v.
Stephenson, 888.
Gibbons v. Dillingham, 883.
V. Johnson, 829.
V. Van Alstyne. 425-427.
V. Wisconsin Valley R. Co., 85.
Gibbs V. Consolidated Gas Co. of
Baltimore, 808.
V. Johnson, 411, 412.
V. State, 134, 152, 268, 641, 699.
V. Wall. 181, 186, 801, 805.
Gibons v. Sullivan, 829.
Gibson v, Carreker. 472, 473.
V. Cincinnati Enquirer, 255.
v. German-American Town
Mut. Ins. Co., 184.
V. Snow Hardware Co., 109,
242.
V. State, 265, 287, 828, 852.
V. Sullivan, 807, 826.
Giddings v. Baker, 779.
Giermann v. St. Paul, M. & M. Ry.
Co., 10.
Giese v. Schultz, 454.
Gifford V. Gifford, 856.
Gilbert v. Merriam & Roberson Sad-
dlery Co., 176, 359.
V. Woodbury, 100.
Gilbertson v. Forty-Second St., M,
& St. N. Ave. Ry. Co., 197, 727.
Gilchrist v. Gilchrist, 905.
V. Hartley, 122.
Gile V. People, 265.
Giles V. State, 664.
Gill V. Clark, 448.
V. Rochester & P. R. Co., 197.
V. Skelton, 841, 849.
V. State, 494, 856.
V. Staylor, 365, 876, 907.
9S2
TABLE OF CASES.
[references are to pages.]
Gillasple v. Hagans, 816.
Gillen v. Riley, 355.
Gillespie v. Battle, 83.
V. Shuleberrier, 300, 306.
Gillett V. Corum, 864, 914.
V. Knowles, 84.
V. Trustees of Village of Kin-
derhook, 803.
y. Wlmer, 556.
Gillilan v. Rollins, 822.
Gillmore v. State, 295.
Gills V. Com., 779, 782.
Gilman v. Sioux City & P. Ry. Co.,
11.
Gilmore v. McNeill, 151.
V. State, 154, 157, 240, 249, 721,
749.
Gilpin V. Gilpin, 805.
Gilyard v. State, 550.
Ginsburg v. Cutler & S. Lumber
Co., 22.
Given v. CUarron, 150.
Givens v. State, 520.
V. Van Studdiford, 182.
Gizler v. Witzel, 173.
Glasgow V. Hobbs, 332.
Glass V. Cook, 226.
V. Gelvin, 190.
V. Memphis & C. R. Co., 896.
V. Ranwolf, 895.
Glasscock v. Chicago & A. R. Co.,
915, 917.
Glaze V. Parcel, 807.
Globe Ins. Co. v. Sherlock, 327.
Globe Mut. Life Ins. Ass'n v. Ahern,
198, 364.
Glover v. State, 350.
Glover's Adm'rs v. Duhle, 726.
Godbold V. Blair, 342.
Goddard v. Foster, 21, 23.
Godwin v. State, 239.
Goetz V. Hannibal & St. J. R. Co.,
167, 914, 916.
V. Metropolitan St. Ry. Co.,
877.
Goldberg v. McCracken, 912.
Golden v. State, 56.
Goldhammer v. Dyer, 296, 297, 800.
Golding V. Merchant, 200.
Goldsborough v. Cradie, 460.
Goldsbury v. May, 831.
GoMsby V. United States, 619.
Goldsmith v. McCafferty, 209.
V. Solomons, 426.
Golstein v. People, 744.
Goldsworthy v. Town of Linden, 90.
Goley V. State, 821.
Golin V. State, 779, 780.
Goll V. Manhattan Ry. Co., 909.
GoUobitsch v. Rainbow, 196.
Gomez v. State, 441.
Gonzales v. State, 706, 820.
Gooch V. Tobias, 773.
Good V. Knox, 197, 895.
V. Martin, 891.
V. State, 319, 441.
Goodbar v. City Nat. Bank, 899.
V. City Nat. Bank of Sulphur
Springs, 239.
V. Lidikey, 198. ' .
Goode V. Campbell, 425, 430.
Goodell V. Bluff City Lumber Co.,
205.
Gooden v. State, 25, 226, 228, 286-
288, 296, 645, 827.
Goodhue Farmers' Warehouse Co.
V. Davis, 239, 243.
Goodman v. Simonds, 85.
Goodrich v. Eastern R. Co., 196.
Goodsell V. Seeley, 458, 459, 822.
V. Taylor, 461.
Goodwin v. Kansas City, Ft. S. &
M. R. Co., 889.
V. Perkins, 818, 820.
V. State, 338, 538-540, 906.
Goodwine v. State, 338, 510, 575.
Gordon v. City of Richmond, 159,
161, 360.
V. Gordon, 827, 829.
V. People, 606.
V. State, 674.
V. Tabor, 227.
Gorley v. State, 550.
Gorman v. Campbell, 213.
v. Minneapolis & St. L. Ry. Co.,
216.
Gorstz V. Pinske, 915, 918.
Gose V. State, 200.
Goss Printing Press Co. v. Lampke,
481.
Gott V. People, 8, 14, 675.
Gottlieb V. Hartman, 562.
Gottstein v. Seattle Lumber & Com.
mercial Co., 311, 883.
Gougar v. Morse, 159.
Gould V. O'Neal, 852.
Gover v. Dill, 184, 839.
Governor v. Campbell, 890.
Gowdey v. Robbins, 327, 803.
Gowen v. Glaser, 301.
TABLE OF CASJBB.
953
[BEFEBENCES ABE TO PAGES.]
Gowen v. Kehoe-, 175.
Grace v. Dempsey, 383, 387, 391,
V. McKinney, 340.
V. McKissack, 844.
Graff V. People, 172.
V. Simmons, 726.
Graham v. Bradley, 883.
v. Cammann, 89.
V. Fidelity Mut. Life ^ss'n,
197.
V. Nowlin, 73.
V. State, 438, 439, 820, 886.
Gramling v. Pool, 364.
Grammar v. State, 374.
Gran v. Houston, 84, 246, 411.
Granado v. State, 698, 699.
Cranberry v. Prierson, 423.
Granby Mining & Smelting Co. v.
Davis, 101, 105.
Grand Lodge of Masons v. Knox,
257.
Grand Rapids & I. R. Co. v. Cam-
eron, 918.
V. Horn, 467.
V. Judson, 242, 243.
V. Monroe, 864, 866, 917.
Grand Trunk Ry. Co. v. Ives, 369.
V. Latham, 339.
V. Nichol, 10.
Grant v. Connecticut Mut. Life Ins.
Co., 270, 273.
V. Hannibal & St. J. Ry. Co.,
216.
V. Rowe, 772.
V. State, 526. 713, 830.
Grantz v. Price, 811, 817.
Gravely v. State, 807.
Graves v. Colwell. 241, 726.
V. Dill. 227.
V. People, 716, 717.
V. State, 743, 800, 847, 855.
Gravett v. State, 423.
Gray v. Burk, 368.
V. Central R. Co.. 14.
V. Chicago, M. & St. P. Ry. Co.,
805.
V. City of Emporia, 839.
V. Crook, 339.
V. Parmer, 904, 908.
V. Knittle, 896.
V. McDonald, 375.
V. State, 659, 671, 819, 874, 876,
914.
V. Stivers, 266. 278.
V. troutman. 879. 898.
Graybill v. Chicago, M. & St. P. Ry,
Co., 220, 365.
Greathouse v. Moore, 776.
V. Summerfield, 262, 266.
Greeley, S. L. & P. Ry. Co. v. Yount,
778.
V. Boston & L. R. Co., 239.
V. Cochran, 551, 908.
V. Collins, 20.
V. Com., 275.
V. Hanson, 823.
V. Hill, 6.
V. Hughitt School Tp., 383, 387.
V. Lancaster County, 366.
V. Lewis, 148.
V. McPaddin, 832.
V. State, 118, 338, 349, 380, 392,
550, 696, 699, 917.
V. Time, 839.
Greenabaum v. Millsaps, 841.
Greene v. Duncan, 811.
V. White, 865.
Greenfield v. East Harrisburg P.
Ry. Co., 64. .
V. People, 460, 461.
Greenleaf v. Birth, 226.
Greenley v. State, 737, 853, 903, 907.
Greenup v. Stoker, 469, 864.
Greenway v. Turner, 340, 891, 892.
Greenwich Ins. Co. v. Raab, 273.
Greenwood v. Davis, 885.
V. State, 302, 320.
Greer v. Com., 173, 183.
V. Higgins, 560, 868.
v. Lafayette Co. Bank, 887, 898.
V. St. Louis, I. M. & S. Ry. Co.,
161.
V. Parker, 227.
V-. State, 505.
V. Whitfield, 740.
Greever v. Bank of Graham, 145.
Gregg V. Mallett, 252.
V. Moss, 910.
V. Sayre's Lessee, 844.
Gregory's Adm'r v. Ohio River R.
Co., 787.
Grentzinger v. State, 734.
Greta v. State, 320.
Grieh v. Caraker, 911, 913.
Griell v. Lomax, S5.
Grier v. Hazard, Hazar.1 & Co,, 812,
817.
GriflJn v. Bland, 839.
V. Chadwick, 3J9.
V. Chubb. 740.
954
TABLE OF CASES.
[befeeences abb to pages.]
Griffin r. State, 743, 748.
V. Templeton, 840, 857.
Griffith V. Hanks, 465, 471.
V. State, 686.
V. Utica & M. R. Co., 89.
Grigg V. Jones, 773.
Grim v. Murphy, 165.
Grimes v. Martin, 339.
V. State, 551, 563.
Griswold v. Boley, 819.
V. Sundbaclc, 367.
Groesheck v. Marshall, 770.
Groff v. Hansel, 162.
Groft v. Weakland, 10, 382.
Gronan v. Kukkuck, 903.
Gross V. Hays, 823.
V. Shaffer, 238.
Grows V. Maine Cent. R. Co., 118.
Grubb V. State, 328, 332, 613, 754.
Grubbs v. North Carolina Home
Ins. Co., 328, 332.
Grube v. Nichols, 240.
Grugan v. City of Philadelphia,
803.
Guaranty Const. Co. v. Broeker,
789.
Guaranty, etc., Soc. v. Ford, 367.
Guckian v. Newbold, 196.
Guerold v. Holtz, 899.
Guetig v. State, 531, 538-540, 753,
754, 915, 917.
Guffee V. State, 324.
Guggenheim v. Kirchhofer, 810.
Guinard v. Knapp, Stout & Com-
pany, 913.
Gulf, C. & S. F. Ry. Co. v. Box, 303.
V. Campbell, 260.
V. Darton, 864, 866.
V. Dorsey, 233.
V. Dunlap, 148.
V. Duvall, 892.
V. Fink, 308, 317.
V. Greenlee, 210, 864, 866.
V. Gordon, 241, 245.
V. Harmonson, 317.
V. Harriett, 155, 158, 197, 245.
V. Higby, 889, 890.
V. Hill, 342.
V. Holt, 268, 833.
V. Johnson, 824.
V. Jones, 302.
V. Kizziah, 184, 232, 233.
V. Lankford, 227.
V. McCarty, 763.
V. Miller, 152.
Gulf, C. & S. F. Ry. Co. v. Moody.
303.
V. Perry, 303. .
V. Reagan, 258, 880.
V. Shearer, 295.
V. Shieder, 225.
V. White, 170.
V. Younger, 188.
Gullikson v. Gjorud, 78.
Gulliver v. Adams Exp. Co., 805, 842
Gum V. Murray, 799, 819.
Gundlin v. Hamburg-American
Packet Co., 823.
Gunter v. Graniteville Mfg. Co., 340
V. State, 531, 533.
Gurney v. Smithson, 175.
Guthrie v. Newill, 884.
Gutirrez v. State, 627, 629.
Gutwillig V. Zuberbier, 341.
Gwaltney v. Scottish Carolina Tim-
ber Co., 296, 301.
Gwatkin v. Com., 290.
Gwin V. Gwin, 195.
Gwinn v. Crawford, 298, 304. 305
897.
Gwynn v. Duffield, 298.
H.
H. B. Claflin Co. v. Querns, 8. 11
876, 909.
H. G. Olds Wagon Works t.
Coombs, 16, 23.
Haber v. Nassitts, 297.
Hadden v. Larned, 879.
Hadlock v. Brooks, 204, 365.
Hadley v. Prather, 386.
Haffin V. Mason, 338.
Hagenow v. People, 147.
Hager v. Hager, 89.
Haggart v. Morgan, 823.
Hahn v. Miller, 192.
V. St. Clair Sav. & Ins. Co.,
849, 850, 852.
Haight V. Vallet, 168, 169, 532.
Haines v. Illinois Cent. R. Co., 276.
V. McLaughlin, 90, 97, 200.
V. Territory, 510, 512.
Haldeman v. Martin, 96.
Halderman v. Territory, 510.
Hale V. Gibbs, 812.
V. Rawallie, 559.
Half V. Curtis, 302.
Hall V. Ballou, 895, 896.
T. Brown, 226.
V. Carter, 220, 222, 262, 284.
TABLE OF CASES.
955
[BEFEBSNOES ABE TO FAQES.]
Hall V. Castleberry, 301.
T. Costello, 26, 27.
V. Hall, 380, 385, 387.
V. Hunter, 200, 342.
V. Incorporated Town of Man-
son, 296. ,
V. Johnson, 853.
T. Rankin, 541.
V. Renfro, 217, 560.
V. State, 226, 415, 421, 425, 426,
460, 742, 887, 912.
V. Stewart, 210, 298, 897.
V. Suydam, 901.
V. Vanderpool, 232, 233.
V. Weare, 303.
V. Weir, 299.
T. Wolff, 776.
V. Woodin, 222, 223.
Hallenbeck v. Garst, 821, 822.
Hallock V. Iglehart, 304.
Halpin v. Third Ave. R. Co., 12.
Halsell V. Neal, 115, 151, 198, 206.
Halsey v. Bell, 105.
V. Darling, 847, 852.
V. Rome, W. & O. R. Co., 340.
Haltom V. Southern Ry. Co., 8.
Ham V. Delaware & H. Canal Co.,
72.
v. State, 649.
V. Wisconsin, I. & N. R. Co.,
394 935.
Hamhlett v. Ham'hlett, 465.
Hambright y. Stover, 188.
Hamburg v. Wood, 341, 348.
Hamel v. Brooklyn Heights R. Co.,
373.
Hamet v. Dundass, 89.
Hamilton v. Great Palls St. Ry. Co.,
82, 811.
V. Hunt, 3.
v. Menor, 359.
V. New York Cent. R. Co., 468.
V. People, 33, 43, 494, 567, 647,
648.
V. Russell, 199.
V. State, 196, 421, 422, 438, 510,
696.
T. State Bank, 908.
V. Third Ave. R. Co., 803, 804.
Hamilton Buggy Co. v. Iowa Buggy
Co., 198.
Hamlin v. Haight, 818, 820.
V. Treat, 118, 130.
Hammer v. Chicago, R. I. & P. Ry.
Co., 225.
Hammett v. Brown, 302, 912.
Hammond v. Coursey, 727.
V. Schiff, 820, 823.
T. State, 581, 583, 585.
Hammond's Lessee v. Inloes, 150.
Hampson v. Taylor, 367.
Hampton v. Massey, 532.
V. State, 729.
Hamrahan v. People, 81.
Hanan v. Hale, 839.
Hanchett v. Kimbark, 379.
Hancock v. Stout, 362.
V. Whybark, 18.
Hand v. Central Pa. Tel. &
Co., 212.
V. Taylor, 856.
Haney v. Caldwell, 178, 179, 368.
V. Marshall, 469, 864,
Hanver v. Evins, 178-180.
Haniford v. City of Kansas, 806.
Hanks v. Neal, 897.
V. State, 696.
Hanna v. Hanna, 155, 727.
V. Maas, 808.
Hannah v. State, 134, 746.
Hannahan v. State, 422.
Hannibal & St. J. R. Co. v. Martin
72.
Hannon v. Grizzard, 458.
v. State, 130, 415, 422, 455.
Hannum v. State, 43, 45.
Hansberger v. Sedalia Electric Ry.,
Light & Power Co., 480, 555, 556.
564.
Hanscom v. DouUard, 908.
Hansen v. Erickson, 553.
Hansen v. Boyd, 98.
V. Gaar, Scott & Co., 214.
Hanson v. Eastman. 20.
Harbach v. Miller, 287.
Hardin v. Alpiand, 297.
V. Helton, 263, 266, 278.
V. Sheuey, 10.
V. State, 199.
Harding v. New York, L. E & W
R. Co., 875.
V. Sandy, 349, 350.
V. Wright, 189.
Hardwick v. State, 286, 833, 861.
Hardy v. De Leon, 339, 340, 869
885.
V. Graham, 66.
V. Keene, 381.
V. Milwaukee St. Ry. Co., 600.
V. State, 43.
956
TABLE OP CASES.
[BEFEBENCES ABE TO PAGES.]
Hardy v. Turney, 262, 267.
Hargadine v. Davis, 303.
Harger v. Spofford, 915.
Harsis v. St. Louis. A. & T. Ry. Co.,
211.
Hargrave v. State, 912.
Hareraves v. Miller's Adm'x, 559.
Hargrove v. State, 438, 439.
Harington v. Neeley. 141.
Harkness v. State, 154, 198.
Harley v. Merrill Brick Co., 222.
V. Weiner, 63.
Harman v. Cundiff, 368.
V. Kelley, 884.
V. Shotwell. 381. 385, 391.
Harmon v. Chandler, 832.
Harper v. Kean, 23.
V. Morse, 870.
V. Philadelphia TractitSn Co.,
77.
V. State, 298, 420, 547, 771.
Harpham v. Whitpey, 739.
Harrell v. Houston, 209.
V. State, 514.
Harrigan v. Chicago & I. R. Co., 11.
V. Turner, 357.
Harriman v. Queen Ins. Co., 453.
Harrington v. City of Sedalla, 871,
891, 892, 907.
v. Minor, 447.
V. People, 147.
V. State, 583, 588, 779.
Harris v. Barnhart, 851.
V. City of Ansonia, 240.
V. Daugherty, 881.
V. Doe, 26, 883.
V. Lee, 365.
V. Northern Indiana R. Co.,
317.
V. Russell, 776.
V. Shehek, 73.
V. State, 33-35, 43, 45, 195, 201,
206, 367, 375, 526, 543,
547, 549, 703, 704, 878,
889.
Harrison v. Baker, 208.
V. Bartlett, 3.
V. Chappell, 300, 827, 829.
V. Charlton, 828.
V. Com., 43.
V. Farmers' Bank, 64.
V. Iowa Midland R. Co., 298.
V. Morton, 888.
V. Powell, 462.
V. Snair, 908.
Harrison v. Spring Valley Hydraul-
ic Gold Co., 169, 868.
V. State, 578, 711.
V. Young, 468.
Hart V. Borough of Girard, 6.
V. Bray, 243.
V. Chicago, R. I. & P. R. Co.,
162.
V. Com., 152.
V. Hopson, 556.
V. Newton, 853, 860, 903.
V. Niagara Fire Ins. Co., 774.
V. Rensselaer & S. R. Co., 823.
V. Thomas, 905.
V. Walker, 914.
V. Western Union Telegraph
Co., 297.
Hartford Deposit Co. v. Calkins,
195, 205.
Hartford Fire Ins. Co. v. Josey,
184.
V. Raynolds, 359.
Hartman v. Flaherty, 415, 421.
V. Loptien, 198.
V. Ruby, 766.
Hartmann v. Louisville & N. R. Co.,
244.
Harton v. Com., 691.
Hartshorn v. Byrne, 105.
Hartwig V. Gordon, 267, 279.
Harvey v. Dodge, 116.
V. Graham, 419.
V. Laflin, 856.
V. State, 358, 684, 713.
V. Tama County, 266, 279, 341,
350, 356, 815, 824.
V. "Vandegrift, 16.
Hashrouck v. City of Milwaukee,
3, 269, 277.
Hash v. Com., 227.
Haskew v. State, 570.
Haskin v. Haskin, 161.
Haskins v. Haskins, 819.
Hassett'v. Johnson, 212.
Hasson v. Klee, 197.
Hastings v. Bangor House Propri-
etors, 865.
Hatch v. Marsh, 240.
v. Pendergast, 14, 15.
V. Spearin, 299.
Hatcher v. State, 423.
Hatfield v. Chicago, R. I. & P. Ry.
Co., 499, 515.
Hathaway v. East Tennessee, V. &
G. R. Co., 12.
TABLE OP CASES.
957
[REFEEENCES ARE TO PAGES.]
Hathaway v. Judie, 10.
Hatt V. Evening News Ass'n, 888. .
Hatton V. Jones, 298.
V. McClish, 344.
V. Stewart, 799.
Haugen v. Chicago, M. & St. P. Ry.
Co., 12.
Hauk V. Brownell, 85. '
Haun V. Rio Grande W. Ry. Co., 5,
7, 8, 814, 820, 823.
Haupt V. Pohlmann, 292, 300, 305.
Hauss V. Niblack, 266, 279, 280.
Havelick v. Havelick, 853.
Haven v. Markstrum, 528.
V. Richardson, 93.
Hawes v. Burlington, C. R. & N.
Ry. Co., 169.
V. Gustin, 465.
V. State, 141.
Hawkins v. House, 382.
V. Hudson, 910.
V. Kermode, 309.
V. Robinson, 170.
Hawley v. Chicago, B. & Q. Ry. Co.,
73.
V. Harran, 808.
Hawthorne v. State, 907.
Haxton v. McClaren, 878, 907.
Hay V. Carolina Midland R. Co.,
374, 382.
Hayden v. Bartlett, 100.
v. Parsons, 101.
V. Souger, 888.
V. Wheeler & Tappan Co., 338.
Hayes v. Cheatham, 799.
V. Homer, 853, 859.
v. Kelley, 205.
v. Pennsylvania R. Co., 64,
232, 233, 239.
V. St. Louis R. Co., 216, .257.
v. State, 154.
V. Wagner, 64.
V. West, 908, 910.
V. Williams, 415, 416.
Haymaker v. Adams, 305.
Haymon v. Saucer, 221, 546.
Hayner v. Churchill, 232.
Haynes v. State, 524, 525, 614, 800.
V. Town of Trenton, 183, 827.
Haynie v. State, 833.
Hays V. Borders, 379.
v. Parwell, 907.
V. Hays, 302, 368.
V. Johnson, 778.
V. Paul, 390, 393.
Hays V. Pennsylvania R. Co., 241.
Hayward v. Catton, 821.
V. Knapp, 160.
Hazell V. Bank of Tipton, 206, 871.
Hazewell v. Coursen, 227.
Head v. Bridges, 340, 404, 408, 473.
V. Dyson, 840, 897.
V. Langworthy, 266, 287.
v. State, 897.
Heady v. Vevay, Mt. S. & V. Turn-
pike Co., 473, 474.
Healey v. Rupp, 342.
Hearn v. Shaw, 299, 843, 850.
Hearne v. De Young, 876, 914.
Heaston v. Cincinnati & P. W. R.
Co 287
Heath v. 'Glens Falls, S. H. & Ft.
E. St. R. Co., 825.
V. Heath, 823.
Heaton v. Manhattan Fire Ins. Co.,
854.
Hedden v. Iselin, 808.
Heddle v. City Electric Ry. Co.,
238.
Hedgepeth v. Robertson, 81.
Hedrick v. Smith, 840.
V. Strauss, 822.
Heffley v. Poorbaugh, 908.
Heflin v. Bevis, 883.
Helling v. Van Zandt, 889.
Hege V. Newsom, 328, 332.
Heilbron v. Heinlen, 10.
V. State, 347.
Heilman v. Com., 226, 292, 319.
Heimann v. Kinnare, 212.
Heimerdinger v. Finelite, 10.
Helms V. Wayne Agricultural Co.,
841.
Heine v. Com., 582, 583.
Heirn v. McCaughan, 84.
Heitzelman v. State, 802.
Heldt V. State, 659, 807, 829.
V. Webster, 726.
Hellems v. State, 884.
Hellyer v. People, 63, 71, 81, 504.
Helm v. People, 272.
Helmholz v. Everingham, 23, 24.
Helt V. Smith, 219, 908.
Hemmens v. Nelson, 10.
Hemmingway v. Garth, 912.
Hemphill v. Morrison, 820.
Hempstead v. City of Des Moines,
217.
Hempton v. State, 64, 102.
Henderson v. Mabry, 83, 175.
958
TABLE OF CASES.
[EBFEEENCES ABE TO PAGES.]
Henderson v. Marx, 63.
V. Miller, 601.
V. People, 253.
V. State, 544.
Henderson County y. Dixon, 64.
Henke v. Babcock, 286, 870.
Henkle v. McClure, 471.
Henley v. Bronnenberg, 832.
Henn v. Long Island R. Co., 366,
373.
Henning v. State, 441.
Henry v. Bassett, 233.
V. Davis, 159, 339. '|
V. Klopfer, 406.
V. Sansom, 160.
Henry C. Hare Mfg. Co. v. Mann's
Boudoir Car Co., 184.
Henschen v. O'Bannon, 162, 169.
Hentig v. Kansas Loan & Trust
Co., 813, 883.
Henze v. St. Louis, K. C. & N. Ry.
Co., 569.
Hepler v. State, 292, 293.
Herbert v. Ford, 28.
V. Huie, 297.
Herbstrelt v. Beckwith, 853, 855.
Herhold v. City of Chicago, 918.
Herkelrath v. Stookey, 726.
Herman v. Owen, 871.
V. State, 670.
Herndon v. Henderson, 167.
Herowitz v. Hamburg American
Packet Co., 366.
Herrick v. Quigley, 90, 96.
Herriman v. Chicago & A. R. Co.,
84.
Herring v. Skaggs, 210.
Herron v. Cole, 182.
Hersey v. Hutchins, 198.
Herskovitz v. Baird, 350.
Herst V. De Comeau, 859.
Herstine v. Lehigh Valley R. Co.,
544.
Herzog v. Campbell, 410, 807.
Hess T. Lowrey, 505.
V. Miles, 450.
V. Newcomer, 222, 869, 872.
V. Williamsport & N. B. R. Co.,
572, 574.
Hesslng v. McCloskey, 298.
Hetfleld v. Dow, 300.
Hewey v. Nourse, 847.
Hewlett V. Pilcher, 449.
Heydrick v. Hutchinson, 99.
Heyer v. Salshury, 409.
Heyl V. State, 167, 168, 654, 9,03.
Heyne v. Blair, 11, 12.
Hiatt V. Brooks, 11.
Hibernia Ins. Co. v. Starr, 16.
Hice V. Woodard, 300, 327.
Hickam v. Griffln, 167.
V. People, 821.
Hickaur v. Griffin, 915.
Hickenbottom v. Delaware, L. & W.
R. Co., 910, 914.
Hickman v. Jones, 12.
V. Link, 170.
Hickory v. United States, 503, 721,
757.
Hicks V. Britt, 841.
V. Maness, 340.
V. Southern Ry. Co., 203.
V. United States, 503.
Hide & Leather Nat. Bank v. Alex-
ander, 184.
Hidy V. Murray, 739.
Hlester v. Laird, 776.
Higbee v. McMillan, 560, 561.
V. Moore, 856, 878.
Higdon V. Chastaine, 300.
Higginbotham v. Campbell, J.06.
V. Higginbotham, 99.
V. State, 364.
Higgins V. Carlton, 380.
V. Grace, 226.
V. McCrea, 25.
V. Wren, 552.
Higgs V. Wilson, 529.
High V. Chick, 425, 426.
V. Merchants' Bank, 208.
Highland Ave. & B. R. Co. v. Samp-
son, 227.
Hildman v. City of Phillips, 572,
573.
Hilke'r v. Kelley, 852.
Hill V. Aultman, 224.
V. Calvin, 897.
V. Childress, 76, 77.
v. Crownover, 837.
V. Finigan, 915.
V. Ludden & Bates Southern
Music House, 185.
V. Newman, 305.
v. Parsons, 379.
v. Scott, 257.
V. Spear, 76.
V. State, 57, 292, 300, 321, 800,
802, 838, 849, 879.
V. Ward, 829.
V. Wright, 330.
TABLE OP CASES.
959
[BGFEBENCES ABE TO PAGES.]
Hillebrant v. Green, 882.
Hilliard v. Johnson, 889.
Hills V. Goodyear, 340.
Himes v. McKinney, 239.
Hinchman v. Weeks, 336.
Hinckley v. Horazdowsky, 2, 275.
Hindman v. Timme, 298.
V. Troxell, 798.
Hinds V. Harbou, 83.
Hine v. Bowe, 200.
Hiner v. Jeanpert, 905.
Hines v. Com., 194.
Hinkle v. San Francisco & N. P.
R. Co., 851.
Hinton v. Cream City R. Co., 499,
502, 568, 572, 573.
V. Nelms, 383.
Hiott V. Pierson, 117.
Hipes V. State, 918.
Hirsch v. Feeney, 739.
Hisey v. Goodwin, 447.
Hitchcock V. Supreme Tent, K. M.
W., 299, 316.
Hite V. Blandford, 212.
Hix V. People, 259, 744.
Hobbs V. State, 284, 349, 830.
Hoben V. Burlington & Missouri
River R. Co., 162, 163.
Hoberg v. State, 425, 426.
Hocker v. Day, 302, 314.
Hocum V. Weitherick, 151.
Hodge V. State, 296, 298, 309, 341,
344.
V. Town of Bennington, 467.
Hodges V. Branch Bank at Mont-
gomery, 304.
V. Cooper, 338, 347.
V. State, 860, 909.
V. Strong, 18.
Hodgman v. Thomas, 366.
Hofflne V. E wings, 876.
Hoffman v. Bloombury & S. R. Co.,
873
V. New York Cent. & H. R. R.
Co., 97.
v. Gates, 364.
Hoffmann v. Cockrell, 152.
Hogan V. Cregan, 295, 300.
V. Page, 6.
v. Shuart, 84, 115, 897.
V. State, 196, 200, 521.
Hogel V. Lindell, 262, 263, 267.
Hogg V. Pinckney, 740.
V. State, 383, 384, 415.
Hogsett V. State, 526.
Hohstadt v. Daggs, 911.
Holtt V. Holcomb, 882.
Holbrook v. Utica & S. R. Co., 366.
Holden v. State, 320, 441, 445.
Holder v. State, 91.
V. United States, 56, 820.
Holland v. Barnes, 819.
V. Kindregan, 10, 12.
V. McCarty, 253, 254.
V. State, 581, 583, 584.
V. Union County, 852, 857.
Holley V. State, 631, 634, 801, 826.
Holliday v. Burgess, 172, 174.
V. Rheem, 301.
Hollinger v. Canadian Pac. R. Co.,
800.
Hollingsworth v. Chapman, 844.
V. Holshousen, 800, 840, 865.
867, 878, 879, 881.
V. State, 831.
Hollis V. State Ins. Co., 216.
Holloway v. Armstrong, 897.
Holly V. Com., 782.
V. Holly, 326.
Hollywood V. People, 338.
V. Reed, 310.
Holm V. Sandberg, 800.
Holman v. Britton, 837-840.
V. Crane, 14.
V. Herscher, 811.
V. King, 27.
Holmes v. Ashtabula Rapid Transit
Co., 183, 341.
V. Braidwood, 871.
V. State, 228, 234.
V. Whitaker, 232.
Holt V. Pearson, 188.
V. Spokane & P. Ry. Co., 169.
V. State, 238, 242, 248, 297.
Holterhoff v. Mutual Ben. Life Ins.
Co., 887.
Holtzclaw V. State, 76.
Holverstot v. Bugby, 805.
Home Bank v. Towson, 183.
Home Ins. Co. v. Marple, 83.
V. Sylvester, 365.
Honesty v. Com., 206, 362.
Honeycut v. Angel, 854.
Honeycutt v. State, 319, 438.
Hoobler v. Hoobler, 450.
Hood V. Hood, 352, 406.
V. Maxwell, 855, 862.
V. Clin, 76.
Hood's Case, 36.
Hooker v. Johnson, 188.
960
TABLE OF UAHKH.
[BEFEBENCES ABE TO FAQES.]
Hooks V. Houston, 823.
Hooper v. Moore, 27.
V. Southern Ry. Co., 8, 9.
V. State, 343, 349.
Hoover v. Wood, 856.
Hopcraft v. Lachman, 377.
Hope V. Lawrence, 199.
Hopkins v. Bishop, 425-427.
V. Fowler, 208.
V. O'Leary, 365.
V. Richardson, 362.
Hopkins Mfg. Co. v. Aurora F. & M.
Ins. Co., 822.
Hopkinson v. People, 175.
Hoppe V. Chicago, M. & St. P. By.
Co., 452.
Hopper V. Hopper, 74.
Hopt V. People, 279, 284.
Horah v. Knox, 300.
Horan v. Long, 78.
Horback v. Miller, 267, 288.
Horgan v. Brady, 187.
Horn V. Gartman, 857.
V. State, 154, 156, 551.
Home V. State, 915.
V. Walton, 172, 250.
Horner v. Hoadley, 809.
Horton v. Chevington & B. Coal Co.,
411, 412, 909.
V. Com., 151, 597, 666.
V. Cooley, 838.
V. State, 109.
V. United States, 456, 791.
V. Williams, 386, 408.
Hot Springs R. Co. v. Williamson,
199.
Hotchklns v. Hodge, 296.
Hough V. Hill, 197.
Houghton V. Houghton, 28.
Houghton Co. Sup'rs v. Rees, 887.
House V. Fultz, 162.
Householder v. Granby, 267, 278,
279.
Houser v. Lightner, 888.
Housh V. State, 321.
Houston V. Blythe, 351.
V. Com., 64.
V. State, 7, 100, 729.
Houston, B. & W. T. Ry. Co. v.
Hardy, 898.
Houston & T. C. R. Co. v. Berling,
84.
V. Byrd, 369.
V. George, 184, 370.
V. Gilmore, 188, 209,
Houston & T. C. R. Co. t. Dotaon,
764.
V. Kelley, 340.
V. Larkin, 241, 245.
V. Milam, 367.
V. Moss, 367, 876, 912.
V. Patterson, 367, 766.
V. Rider, 201.
V. Shirley, 913.
V. Smith, 197.
V. White, 115, 367.
Houx V. Batteen, 891, 892.
Hovey v. Chase, 541.
V. Hobson, 380.
V. Thompson, 389.
How V. Reed, 880.
Howand v. Zimpelman, 776.
Howard v. Carpenter, 8, 336.
V. McDonald, 566.
V. Milwaukee & St. P. Ry. Co.,
10.
V. Mutual Benefit Life Ins. Co.,
311.
V. People, 876, 905.
V. State, 276, 439, 473, 624, 628,
720, 742, 917.
Y. Wofford, 109.
Howard Exp. Co. v. Wile, 12.
Howard F. & M. Ins. Co. v. Cornick,
393, 905.
Howay v. Going-Northrup Co., 368.
Howe Machine Co. v. Reber, 188.
Howe Sewing-Mach. Co. v. Layman,
195.
Howell V. Hanrlck, 15.
V. Sewing-Machine Co., 222.
V. State, 7, 8, 167.
V. Webb, 200.
Howes V. Carver, 76.
V. Grush, 380.
Howerton v. Holt, 116.
Howland v. Bartlett, 310.
V. Day, 321.
V. Willetts, 823.
Hewlett V. Dilts, 339, 777.
Howry v. Eppinger, 316.
Hoyt V. Dengler, 299.
V. People, 485-487.
V. Quinn, 841.
Hubbard v. State, 402.
Hubbell V. Blandy, 880.
V. Ream, 298.
Hubby V. State, 441.
Huber v. Feuber, 63.
V. Wilson, 301.
Hubley v. Vanborne, 869.
TABLE OP OASES.
[references aee to pages.]
HubneF v. Feige, 7, 879.
Huddleston v. State, 268, 833.
Hudelson v. State, 48, 49, 53, 915.
Hudson V. Bower Grocery Co., 885.
V. Charleston, C. & C. R. Co.,
306.
V. Minneapolis, L. & M. Ry. Co.,
420, 428-430.
V. Morriss, 864, 866.
V. Northern Pac. Ry. Co., 187,
194.
V. Weir, 7.
Huerzeler v. Central Crosstown R.
Co., 825.
HufE V. Aultman, 843, 847, 850, 852,
857.
V. Earl, 884.
Huffman v. Alderson's Adm'r, 910.
V. State, 148, 149.
Huggins V. Chattanooga, R. & C. R.
Co., 310.
V. State, 731, 764.
Hughes V. Anderson, 152.
V. Boyer, 360.
V. Ferguson, 239.
V. Heyman, 814.
V. Hughes' Ex'r, 304, 305.
V. Monty, 84.
V. Parker, 849, 885.
T. State, 131, 580.
V. Tanner, 28.
V. Wheeler, 888.
Hulehan v. Green Bay, W. & St. P.
R. Co., 823.
Hulett V. Missouri, K. & t. Ry. Co.,
877 912
Hulse V. State, 417, 422, 434.
Hume V. Providence Washington
Ins. Co., 302, 307.
Hume, Small & Co. v. Insurance
Co., 904.
Humes v. Bernstein, 24.
v. McFarlane, 359.
Hummel v. Stern, 369.
V. Tyner, 878, 884.
Humphreys v. Collier, 100, 122.
V. Johnson, 531.
V. Mayor of Woodstown, 199.
V. State, 253, 254.
Humphries v. Johnson. 536.
Hunnewell v. Hobart, 196.
Hunnicutt v. State, 488, 490.
Hunt V. Bennett, 89, 98.
V. Chicago & N. W. R. Co., 880.
V. Elliott, 350, 363.
81— Ins. to Juries.
Hunt V. Hunter, 907.
V. Kemper, 847, 853.
V. Maybee, 823.
V. Pond, 340, 848.
V. State, 57, 696, 703-705.
V. Supreme Council, 0. C. F,
85. I
V. Toulmin, 297.
Hunter v. Heath, 299.
V. Jones, 817.
V. McElhaney, 763.
V. Miller, 448.
V. Parsons, 401.
V. Randall, 160.
V. State, 11, 226, 499, 524.
Hunting v. Downer, 819.
Hunton v. Nichols, 15.
Huntoon v. Lloyd, 196.
Hurd V. Atkins, 905.
Hurlburt v. Hurlburt, 89, 96.
Hurley v. Morgan, 18.
V. State, 158, 320, 905.
Hum's Lessee v. Soper, 200.
Hurst T. Scammon, 299.
Hurt V. Miller, 100.
Huschle V. Morris, 11.
Huskey v. State, 240.
Hussey v. Moser, 888.
V. State, 247.
Hutchins v. Wade, 839.
V. Weldin, 907.
Hutchinson v. Bearing, 297, 797,
800.
V. Wenzel, 213.
Hutchinson Nat. Bank v. Crow,
774.
Hutchison v. Bowker, 23-25.
Huth V. Carondelet Marine R. & D
Co., 18.
Hutto V. State, 645, 729, 732.
Hutton V. State, 781.
Hyatt V. State, 749.
Hyde v. Adams, 851.
V. St. Louis Book & News Co.
299, 305.
V. Shank, 150.
V. Town of Swanton, 5, 790.
Hymes v. Jungren, 839.
Hynea v. McDermott, 862.
I.
Illinois Cent. R. Co. v. Boehms, 13
V. Davidson, 89, 90, 97.
V. Hammer, 266, 271.
%2
TABLE OF CASES.
[EEFERKNCES ABE TO PAGES.]
Illinois Cent. R. Co. v. Haskins,
863.
V. Hileman, 209.
V. Latimer, 870.
V. McClelland, 212.
V. McKee, 189.
V. Maffit, 153, 905.
V. Modglin, 826, 829.
V. Sanders, 198, 913.
V. Swearingen, 908, 914.
V. Wheeler, 270, 272.
V. Zang, 71, 778.
Illinois Linen Co. v. Hough, 167,
169, 915, 916.
Imhoff V. Chicago & M. Ry. Co.,
167, 168, 171, 916, 917.
Indiana, B. & W. Ry. Co. v. Cook,
906.
Indianapolis, B. & W. Ry. Co. v.
Rhodes, 805, 837.
Indianapolis, P. & C. Ry. Co. v.
Bush, 451, 452, 465. ■
Indianapolis & St. L. R. Co. v.
Horst, 94, 341, 368, 382.
V. Stout, 889.
Ingalls V. State, 482, 486, 554, 743.
Inge V. Murphy, 27.
Ingersoll v. Town of Lansing, 458.
Inglebright t. Hammond, 340, 341.
Ingols V. Plimpton, 172.
Ingraham v. Hart, 26.
Ingram v. Marshall, 884.
V. State, 178.
Inhabitants of Bangor v. Inhabit-
ants of Brunswick, 861.
Inhabitants of Buckland v. Inhabit-
ants of Charlemont, 826.
Inhabitants of Harpswell v. Inhab-
itants of Phipsburg, 299.
Inhabitants of Naples v. Inhabit-
ants of Raymond, 380.
Inhabitants of Thomaston v. In-
habitants of Warren, 339.
Inloes V. American Exch. Bank,
891, 802.
Insurance Co. v. Trustees C. P.
Church, 262, 268.
Insurance Co. of North America v.
Brim, 298.
International Bank v. Bartalott, 6.
International Building & Loan
Ass'n V. Fortassin, 892.
International & G. N. R. Co. v.
Beasley, 316.
V. Branch, 194.
International & G. N. R. Co. v.
Brazzil, 150.
V. Crooks, 375.
V. Jackson, 369.
V. Leak, 302, 370.
V. Neff, 348.
v. Newburn, 367.
V. Newman, 239, 247, 251.
V. Phillips, 305.
V. Smith, 297, 302, 312.
V. Stewart, 85.
V. Underwood, 321.
Iowa State Sav. Bank t. Black,
253, 254.
Ireland v. Com., 446.
V. Emmerson, 295, 298.
Iron Mountain Bank v. Armstrong,
191.
Iron Mountain Bank of St. Louis
V. Murdock, 190, 563.
Irvin V. Kutruff, 245, 904.
v. State, 439, 705, 810, 819, 821.
Irvine v. Cook, 464.
V. State, 411.
Irwin V. Atkins, 209.
Isaacs V. Skrainka, 569.
Isham V. State, 575.
Island City Boating & Athletic
Ass'n V. New York & R. Steam-
ship Co., 232.
Island Coal Co. v. Neal, 298.
Ives V. Vanscoyoc, 849.
Ivey V. Hodges, 131, 136.
V. Phifer, 383.
V. State, 568.
V. Williams, 20.
Ivey's Adm'r v. Owens, 305.
Ivy v. Walker, 196.
Izlar V. Manchester & A. R. Co., 8.
Jachary v. Pace, 888.
Jack V. Naber, 822.
V. Territory, 199, 417, 421.
Jackson v. Ackroyd, 188.
V. Bowles, 227.
V. Burnham, 72.
V. Commissioners of Greena
Co., 243.
V. Com., 233, 379, 806.
V. Ferris, 11.
V. Jackson, 349.
V. Kansas City, Ft. S. & M. R,
Co., 239, 252.
TABLE OF UASJUS.
VL,
[eepekences aee to pages.]
Jackson v. Packard, 89.
V. People, 523, 738.
V. Robinson, 247.
V. State, 198, 206, 320, 324,
366, 445, 454, 455, 492,
548, 588, 638, 698, 885, 895.
Jackson School Tp. v. Shera, 224.
Jacksonville, T. & K. W. Ry. Co. v.
Hunter, 805.
Jacksonville & S. E. Ry. Co. v.
Walsh, 242.
Jacobs V. Curtis, 382.
V. Mitchell, 287, 810.
V. Sire, 803.
V. Totty, 114.
Jacobson v. State, 349, 819.
James v. Brooks, 106..
V. Mickey, 554, 555.
V. Missouri Pac. Ry. Co., 162.
Jamison v. Hawkins, 241, 245.
, v. Jamison, 777.
V. Weaver, 908.
Jamson v. Quivey, 386.
Jane v. Com., 653, 654, 700.
Janney v. Howard, 803.
Jansen v. Grimshaw, 389.
V. Halstead, 915.
Jaqua v. Cor,desman & Egan Co.,
263, 266, 827.
Jared v. Goodtitle, 359.
Jarnigan v. Fleming, 255, 553.
Jarrell v. LlUie, 771, 772.
V. State, 654, 655.
Jarrett v. Stevens, 329, 334.
Jarvis v. Strong, 856.
Jasper v. State, 114, 251.
Jaspers v. Lano, 299.
Jefferles v. State, 558, 665.
Jefferson v. State, 154.
Jeffersonville, M. & R. Co. v. Cox,
832, 835, 857.
Jeffries v. Com., 798.
Jenkins v. Charleston St. Ry. Co.,
133.
V. Levis, 266, 286.
V. Little Miami R. Co., 347.
V. North Carolina Ore Dress-
ing Co., 788.
V. State, 292, 302, 320, 656,
720, 741, 781.
-v. Tobin, 109.
V. Tynon, 379.
V. Wilmington & W. R. Co., 1,
261, 263, 267, 275.
Jenkins & Reynolds Co. t. Limd>
gren, 272.
Jenks v. Lansing Lumber Co., 219.
Jenness v. Shaw, 28.
Jenney Electric Co. v. Branham
473.
Jennings v. Kosmak, 563.
v. People, 364.
V. St. Louis, L M. & S, Ry. Co-
868.
V. Sherwood, 22.
Jessel V. State, 196.
Jessup V. Gragg, 99, 107.
Jewell V. Jewell, 7.
Jobe V. Houston, 904, 909.
V. State, 320.
Joeckel v. Joeckel, 9.
John V. State, 821.
John D. C. V. State, 814.
John Deere Plow Co. v. Sullivan,
197, 392.
Johns V. Brown, 904.
V. State, 852, 857, 914.
Johnson v: Armstrong, 155.
V. Baltimore & P. R. Co., 364,
406.
V. Bell, 183.
V. Boyles, 885.
V. Brock, 364.
V. Brown, 101.
V. Chicago, R. L & P. R. Co-
812.
V. Cox, 878.
V. Culver, 451, 452.
V. Fraser, 198.
V. Greenleaf, 841.
V. Illinois Cent. R. Co., 887.
V. International & G. N. R. Co..
913.
V. Jones, 195.
V. Johnson, 188, 876, 915.
V. King, 337.
V. Knudtson, 852.
V. Latimer, 848.
V. Leggett, 865, 867.
V. McCampbell, 360.
V. McKee, 211.
V. Miller, 26.
V. Missouri Pac. R. Co., 256
308, 795, 796.
V. People, 104, 515, 600, 602,
768.
V. Rider, 272.
V. Schultz, 405.
V. Shively, IS.
9t4
TABLE OP CASES.
[EEFERENCES ABE TO PAGES.]
Jolmson V. State, 43, 81, 198, 304,
320, 367, 424, 430, 434, 441,
515, 589, 617, 633, 635, 711,
713, 727, 749, 885, 896.
V. Stone, 527.
V. Superior Rapid Transit Co.,
913.
v. Tacoma Cedar Lumber Co.,
808.
V. Thompson, 531.
V. Wliite, 254, 303.
V. Worthy, 184.
Johnston v. Com., 95.
V. Davis, 888.
V. Hirschberg, 183, 876, 905.
V. Jones, 341, 824.
Johnston Harvester Co. v. Clark,
199.
Joliet Steel Co. v. Shields, 889, 890.
Jolly V. Com., 672.
V. State, 801, 802, 807.
V. Terre Haute Drawbridge
Co., 840, 857.
Jones V. Alabama Minei'al R. Co.,
156.
V. Angell, 771, 878.
V. Bangs, 864, 866.
V. Brownfleld, 9.
V. Buckell, 838.
V. Buzzard, 358.
V. Cherokee Iron Co., 13, 887.
V. Chicago & N. Ry. Co., 12,
170.
V. Davis, 886.
V. Eason, 197.
V. East Tennessee, V. & G. R.
Co., 819, 822.
V. Edwards, 72.
V. Field, 87.
V. Fort, 206, 304.
V. Greeley, 798, 801, 805.
V. Gregory, 767.
V. Hathaway, 796, 797.
V. Hiers, 115.
V. Johnson, 430.
V. Jones, 227.
v. Missouri Pac. Ry. Co., 234.
V. Osgood, 813, 823.
V. Pullen, 14, 15.
V. Randolph, 76.
V. Reus, 465, 466.
V. Spartanburg Herald Co.,
302.
Jones V. State, 83, 158, 266, 286,296,
298, 301, 304, 305, 327,
359, 386, 434, 435, 439, 619,
698, 699, 703, 704, 787, 824,
862, 889, 914.
V. Stewart, 838, 855.
V. Swearingen, 14, 415.
V. Talbot, 167, 168, 461.
V. Thurmond's Heirs, 349, 885.
V. Van Patten, 828.
Jordan v. Easter, 14, 15.
V. James, 884.
V. Lang, 302, 885, 904.
V. Quick, 832.
V. State, 8, 268, 551.
Joseph V. First Nat. Bank of Eldo-
rado, 806, 829.
V. Mather, 852, 857.
Josephine v. State, 879, 897, 898.
Joslin V. Le Baron, 365.
Josselyn v. McAllister, 283, 287,
380.
Judd V. Isenhart, 64, 68, 203.
V. Martin, 298.
Judge V. Jordan, 273.
V. Leclaire, 28, 29.
Judson V. Reardon, 816.
Jumper v. Commercial Bank ot
Columbia, 25, 824. *
Junction City v. Blades, 472.
Jupitz V. People, 583.
Justice V. Lang, 726.
K.
Kackley v. Evansville & Terre
Haute R. Co., 328, 338.
Kadgin v. Miller, 389, 391, 392.
Kalamazoo Nat. Bank v. Sides, 162.
Kaminitsky v. Northeastern R. Co.,
137.
Kane v. Com., 42.
V. New York, N. H. & H. R.
Co., 188.
V. Torbit, 206.
Kankakee Stone & Lime Co. v.
City of Kankakee, 167, 916.
Kankakee & S. R. Co. v. Horan,
532, 533.
Kansas City, Ft. S. & G. R. Co. v.
Hay, 882, 884, 885.
V. Lane, 891.
Kansas City, M. & B. R. Co. v.
Crocker, 890, 892.
TAaiaiS OF CASES.
^uS
[references are to pages.]
Kansas City, W. & N. W. R. Co. v.
Ryan, 531, 536.
Kansas Farmers' Fire Ins. Co. v.
Hawley, 798, 806.
Kansas Ins. Co. v. Berry, 339.
Kansas Inv. Co. v. Carter, 199.
Kansas Pac. Ry. Co. v. Cutter, 868,
869.
V. Little, 806.
V. Nicliols, 813.
V. Peavey, 453.
V. Ward, 364, 400, 821.
Karber v. Nellis, 303.
Karle v. Kansas City, St. J. & C.
B. R. Co., 910.
Karr v. State, 153, 158.
Kauffman v. Babcocli, 904.
V. Maier, 105, 526, 527, 631.
Kaufman v. Schoeffel, 889.
Kaw Bricli Co. v. Hogsett, 159, 184,
390, 399.
Kay V. Noll, 77, 554, 555.
Keables v. Christie, 365.
Kean v. McLaughlin, 301.
Kearney v. Snodgrass, 232, 295, 304,
808, 817.
V. State, 101.
Kearns v. Brooklyn Heights R. Co.,
359.
Keating v. Orne, 6.
V. People, 744.
Keatley v. Illinois Cent. Ry. Co.,
216, 218.
Keator v. People, 147.
Kee V. Cahill, 198.
Keeble v. Black, 420.
Keech v. Enriquez, 911, 914.
Keefer v. Mattingly, 17, 21.
Keegan v. Kinnare, 882, 898.
Keel V. Herbert, 13, 106.
Keeler v. Herr, 17, 879, 880.
V. Stuppe, 3, 369.
Keeling v. Kuhn, 837, 841, 843.
Keen v. Schnedler, 871.
Keen's Ex'r v. Monroe, 392.
Keenan v. Missouri State Mut. Ins.
Co., 339, 390.
Keene v. Lizardi, 897.
V. "Welsh, 169, 170.
Keener v. Harrod, 380, 868, 891.
V. State. 56, 323.
Kehrley v. Shafer, 425, 427, 430.
Keil v. Chartiers Val. Gas Co., 471.
Kieser v. State, 48, 49.
Keith V. State, 99, 570.
V. Wells, 285, 813, 826.
Keithler v. State, 286, 288.
Keithsburg & E. R. Co. v. Henry,
531.
Keitt V. Spencer, 352, 358, 360.
Kellar v. Belleaudeau, 267.
Kelleher v. City 01 Keokuk, S37,
841.
Keller v. New York Cent. R. Co.,
338, 340.
V. Strausburger, 436, 437.
V. Stuppe, 153.
Kelley V. Cable Co., 162, 170, 256,
300, 307, 308.
V. Kelley, 855.
V. Louisville & N. R. Co., 600,
602.
V. Ryus, 12.
V. Schupp, 575.
V. State, 268.
Kelling v. Kuhn, 809.
Kellogg V. Chicago & N. W. Ry.
Co., 797.
V. French, 419, 424.
V. Krauser, 449.
V. Lewis, 404.
V. McCabe, 514.
Kellum V. State, 847, 853, 856.
Kelly V. Burroughs, 10.
V. Bby, 76, 77.
V. Emery, 454, 455.
V. Hendrie, 918.
V. Jackson, 382.
V. John, 821.
V. Kelly, 317.
V. Rowane, 84.
V. United States Exp. Co., 556.
Kelso V. Townsend, 202.
V. Woodruff, 336.
Kelton V. Hill, 196.
Kemp V. State, 324, 741.
Kenan v. Holloway, 304, 305.
Kendall v. Brown, 905.
Kendig v. Overhulser, 865, 886.
Kendrick v. Cisco, 15, 16, 23, 360.
V. Bellinger, 301, 817.
V. Towle, 380.
Kennard v. State, 369, 876, 905, 914.
Kennedy v. Anderson, 852.
V. Forest Oil Co., 233, 234.
V. Kennedy, 568.
V. Klein, 860.
V. People, 661, 905.
V. State, 802, 906.
Kenn^ v. Hannibal & St. J. R,
Co., 184.
Kenny v. Town of Ipswich, 342.
966
TABLE Off CASES.
|*V',FEEENCES .
Kentucky & I. Bridge Co. v. East-
man, 224.
Kenworthy v. Williams, 279.
Keohane, In re, 333.
Kepler v. Jessup, 765.
Kepperly v. Ramsden, 837.
Kerliclis v. Meyer, 111.
Kerrigan v. State, 495.
Kershner v. Kershner's Lessee, 380.
Kessler's Estate, 823.
Ketcham v. New Albany & S. R.
Co., 856.
Ketchum v. Ebert, 90, 98.
Kettlewell v. Peters, 339.
Kettry v. Thumma, 886.
Key V. Dent, 380, 385.
Keyes v. Fuller, 244.
V. Grant, 10.
V. State, 309.
Keys V. People, 592.
V. State, 145, 595.
Keyser v. Hitz, 197, 200.
V. Kansas City, St. J. & C. B.
R. Co., 886.
Keystone Lumber & Salt Mfg. Co.
V. Dole, 817.
Kbron v. Brock, 853.
Kidd V. Cromwell, 17.
V. State, 76.
Kidwell V. Carson, 307.
Kieldsen v.'Wilson, 227.
Kilbourne v. Jennings, 16.
Kildow V. Irick, 101.
Kilgore v. State, 638.
Killian v. Eigenmann, 130.
Killion V. Power, 390, 393.
Killips V. Putnam Fire Ins. Co.,
855.
Killman v. State, 286.
Kilpatrick v. Haley, 531.
V. Pickens County, 824.
Kimball v. Macomber, 843.
Kimble v. Seal, 881, 883, 895.
Kimbrough v. State, 639.
Kimmel v. People, 389, 393.
Kincheloe v. Tracewells, 339, 342.
King V. Allemania Fire Ins. Co.,
448.
V. Barnes, 208.
V, Blackwell, 301.
V. Crocheron, 838.
V. Davis, 389, 395.
V. King, 114, 913.
V. Rea, 384. 394, 465.
T. State, 324, 418, 836, 843, 854.
— xO PAGES. J
King V. Wells, 209.
V. Withers, 36,
Kingsbury v. Garden, 739.
V. Tharp, 20.
Kinkle v. People, 358.
Kinley t. Hill, 328, 332.
Kinney v. City of Springfield, 181.
V. Folkerts, 316.
V. Laughenour, 381, 386.
V. North Carolina R. Co., 105.
Kinsey v. Grimes, 856.
Kinsley v. Monongalia County
Court, 855, 860.
Kipp V. Van Blarcom, 64.
Kirby v. Estell, 367.
V. State, 813.
V. Wabash Ry. Co., 190.
v. Wilson, 231, 406, 898.
Kirchner v. Detroit City R. Co.,
903.
Kirk V. Litterst, 798, 806.
V. State, 425, 434.
V. Territory, 64, 101, 104, 182,
194.'
Kirkland v. Dates, 886.
V. State, 169.
Kistler v. State, 581.
Kitchen v. MeCloskey, 199.
Kitty V. Pitzhugh, 342.
Klatt V. Houston Electric St. Ry.
Co., 375.
Klein v. Franklin Ins. Co., 301.
Kleinschmidt v. McDermott, 841.
Kleintobb v. Trescott, 214.
Klepsch V. Donald, 510, 512, 575.
Kline v. Kansas City, St. J. & C.
B. R. Co., 239.
V. Kline, 853.
V. Wynne, 808.
Klink V. Boland, 231.
V. Payne, 849.
V. People, 847, 852.
Klos V. Zahorik, 365.
Klosterman v. Olcott, 222, 223, 300.
Kluse V. Sparks, 339.
Klutts V. St. Louis, I. M. & S. Ry.
Co., 72.
Klyce V. State, 651.
Knapp V. Abell, 26, 98, 143.
V. King, 392, 399.
V. Sioux City & P. R. Co., 908.
Knickerbocker v. Peoplq, 390, 399.
Knickerbocker Life Ins. Co. v. Fo-
ley, 64.
V. Trafz, 875.
TABLE] OP CASES.
967
[kefeeences are to pages.]
Knight V. Chicago, R. I. & P. Ry.
Co., 800, 802, 826.
V. Clements, 38, 383.
V. Thomas, 572.
V. Towles, 12.
Knights of Pythias v. RosenfeW,
367.
Knoll V. State, 303.
Knott V. Dubuque & S. C. Ry. Co.,
889.
Knowles v. Crampton, 908.
V. Kiiowles, 527.
V. Nixon, 101, 105, 527.
V. Ogletree, 206.
V. People, 560.
Knowlton v. Fritz, 169.
Knoxville v. Bell, 799.
Knoxvllle, C, G. & L. R. Co. v.
Beeler, 16, 18.
Knoxvllle Iron Co. v. Dohson, 799.
Koehler v. Wilson, 298.
Keonigs v. Jung, 833.
Koerner v. State, 84, 523, 524, 721.
Kohn V. Johnston, 903.
Koile V. Bills, 862.
Kollock V. State, 704, 779, 780.
Konold V. Rio Grande Western Ry.
Co., 162, 368.
Koontz V. Kaufman, 375.
Kopelke v. Kopelke, 332, 908.
Kops V. Reg., 610.
Krack v. Wolf, 454, 802.
Kraemer v. Leister, 447.
Kraft V. McBoyd, 232, 233.
V. Smith, 353.
Kramer v. Gustin, 81, 897.
V. Warth, 386.
Kranz v. Thieben, 151, 173.
Kraus v. Haas, 162.
Krchnavy v. State, 737.
Kreigh v. Sherman, 389, 393.
Krepps V. Carlisle, 139.
Krewson v. Purdom, 233.
Krider v. Milner, 447.
Krish V. Ford, 199.
Kroegher v. McConway & Torley,
366.
Krug V. Ward, 809.
Krulder v. Woolverton, 906.
Kshinka v. Cawker, 835.
Kuchenmelster v. O'Connor, 882,
900.
Kuehn v. Wilson, 600. 602.
Kugler V. Wiseman, 885.
Kuhl V. Long,420,424,430,432,433.
Kuhland v. Sedgwick, 10.
Kuhlenbeck v. Hotz, 110.
Kuhn V. Nelson, 286.
Kullberg v. O'Donnell, 428.
Kuney v. Dutcher, 903.
Kurtz V. Haines, 301, 309.
V. Simonton, 832.
Kyle V. Chattahoochee Nat. Bank,
195.
V. Southern Electric Light &
Power Co., 873.
L. I. Aaron Co. v. Hirschfeld, 64,
67, 139.
Labar v. Crane, 881.
Labaree v. Klosterman, 210.
Labeaume v. Dodier, 101.
Laber v. Cooper, 382.
Lacewell v. State, 389.
Lacey v. Porter, 10, 11.
Lachner v. Salomon, 303.
Lacy V. Wilson, 196, 201.
Ladd V. Newell, 365.
V. Pigott, 72.
Lafayette Bridge Co. r. Olsen, 473,
542.
Lafayette, M. & B. R. Co. v. Mur-
dock, 65, 386.
Lafayette Mut. Bid:;. Ass'n v.
Kleinhoffer, 799.
Lafayette Ry. Co. v. Tucker, 342.
Lafayette & I. R. Co. v. Adams, 896.
Laflin v. Chicago, W. & N. R. Co,
534.
Lafoon v. Shearin, 418, 419.
Lagow V. Glover, 256.
Lagrone v. Timmerman, 119, 302.
Laidlaw v. Sage, 407.
Lail V. Pacific Exp. Co., 340.
Lake v. Clark, 200.
Lake Erie & W. R. Co. v. Arnold,
390.
V. Bradford, 332.
v. Carson, 842, 914.
V. Keiser, 364.
V. Parker, 510, 511.
V. Rosenberg, 798.
V. Ziebarth, 188.
Lake Roland El. Ry. Co. v. Mc-
Kewen, 365, 370.
Lake Shore & M. S. Ry. Co. v.
Beam, 226.
V. Mcintosh, 219.
V. Miller, 162.
968
TABLE OP CASES.
[REFERENCES ARE TO PAOES.]
Lake Shore & M. S. Ry. Co. v.
Sehultz, 383.
V. Taylor, 100.
Lake Superior Iron Co. v. Brickson,
903.
Lake Superior & M. R. Co. v.
Greve, 65.
Lamar v. State, 376.
V. Williams, 84.
Lamb v. Hotchkiss, 897.
Lamkin v. Palmer, 341.
Lampe v. Kennedy, 480.
Lancashire Ins. Co. v. Stanley, 503,
510.
Lancaster v. State, 152.
Lancaster County Bank v. Al-
bright, 310, 347.
Landers v. State, 687.
Landes v. Eichelberger, 802.
Landis v. State, 624, 627.
Landon v. Chicago & G. T. Ry. Co.,
7, 9.
Landwerlen v. Wheeler, 832.
Lane v. Miller, 840.
V. State, 644, 918.
Lang v.. Dougherty, 889.
V. State, 319, 388, 497, 499, 504.
Langdon v. People, 699.
Lange v. Kaiser, 822.
V. Perley, 85.
V. Wiegand, 185.
Langtord y. Jones, 532, 814.
V. State, 669, 670.
Langworthy v. Green Tp., 891.
Lanham v. Com.. 798.
Lanier v. Tolleson, 820.
Lanning v. Chicago, B. & Q. Ry.
Co., 220.
Lannum v. Brooks' Lessee, 131, 136.
Lantry Sons v. Lowrie, 776.
Lanyon v. Edwards, 340.
Lapeer Co. Farmers' Mut. Fire Ins.
Ass'n V. Doyle, 20.
Laplsh V. Wells, 359.
La Porte v. Wallace, 6.
Large v. Moore, 390, 393.
V. Orvis, 151.
Larkin v. Burlington, C. R. & N.
Ry. Co., 166.
Larrabee v. Minnesota Tribune Co.,
817.
Larsh v. City of Des Moines, 379.
Larue v. Russell, 226.
Lary v. Young. 16, 296.
Laselle v. Welip, 266, 279, 280, 286.
Lasure v. Graniteville Mfg. Co.,
901.
Latham v. Roach, 908.
Lathrop v. Central Iowa Ry. Co.,
898.
Lattimer v. Hill, 803.
Lau V. Fletcher, 11.
V. W. B. Grimes Dry Goods
Co., 381.
Lauder y. Henderson, 908.
Laughlin v. Main, 856.
Lautman v. Pepin, 460. ,
Lavenburg v. Harper, 414, 417.
Laviolette v. Alberts, 175.
Law V. Merrills, 300, 305, 839, 845.
Lawder v. Henderson, 370, 907.
Lawhead v. State, 654.
Lawler v. McPheeters, 270, 275.
Lawless v. State, 146, 387, 645.
Lawrence v. Bucklen, 799, 806.
V. Hagerman, 905.
V. Hester, 308.
V. Hudson, 341, 360, 362.
V. Jarvis, 905.
V. State, 268, 495.
V. Towle, 860.
Lawrenceburgh & V. M. R. Co. v.
Montgomery, 338, 387.
Lawrenceville Cement Co. v. Park-
er, 356.
Lawson v. Dalton, 197.
V. Metropolitan St. Ry. Co., 64,
366.
Lawyer v. Smith, 9.
Layson v. Galloway, 199.
Layton v. State, 196.
Lea V. Henry, 21.
Leach v. Bush, 338.
V. Hill, 805.
V. Nichols, 188.
V. Woods, 826.
Leahy v. Southern Pac. R. Co., 808.
Leak V. Covington, 817, 823.
Leaptrot v. Robertson, 354.
Lear v. McMillen, 199.
Leary v. Leary, 226.
Leavitte v. Randolph Co., 837, 839,
841.
Lebanon Mut. Ins. Co. v. Losch, 77.
Le Clair v. First Division St. Paul
& P. R. Co., 299.
Ledbetter v. State, 526.
Ledford v. Ledford, 906.
Ledley v. State. 835.
Lee V. Gibbs, 829.
TABLE OP CASES.
969
[references are to pages.]
Lee V. Hamilton, 208.
V. McLelod, 196.
V. Merrick, 210.
V. Newell, 208.
V. Porter, 447.
T. Quirk, 417.
V. Stahl, 265.
V. State, 505, 619.
V. Yandell, 158.
Leeper v. State,2>«.S4q,698,799,847.
Leaser v. Boekhoff, 250.
Lefkow V. AUred, 8uti.
Legg V. Johnson, 159.
Legget V. Harding, 845.
Leggett & Myer Tobacco Co. v. Col-
lier, 273.
Lehigh Valley R. Co. v. Brandt-
maier, 909.
Lehman v. Hawks, 1, 269, 270, 272,
274, 845, 849, 850, 903.
V. Kelly, 776.
V. State, 743, 748.
V. Warren, 886.
Leiber v. Chicago, M. & St. P. Ry.
Co., 100, 105, 852.
Leibig v. Steiner, 89, 95, 898.
Leigh V. Hodges, 829.
V. People, 673.
Leighton v. Sargent, 428.
Leisenberg v. State, 680.
Leitensdorfer v. King, 891.
Lela V. Domaske, 296, 303, 304.
Lellyett v. Markham, 506.
Lemasters v. Southern Pac. Co.,
162, 165, 194, 207.
Lemmon v. Moore, 882, 905.
Lendberg v. Brotherton Iron Min.
Co., 3, 248.
Lenert v. State, 648.
Lent V. Burlington & M. R. R. Co.,
11.
Leonard v. Brooklyn Heights R.
Co., 233.
V. Collins, 461.
V. Territory, 102, 108, 716, 717.
Leslie v. Smithy 76.
Lesser v. St. Louis & Suburban
Ry. Co., 257.
Letton V. Young, 560, 561.
Letts V. Letts, 92.
Leuder v. People, 359, 360.
Levasser v. Washburn, 160, 342.
Lever v. Foote, 11.
Leverett's Heirs v. Carlisle, 838,
849, 855.
Levers v. Van Buskirk, 301.
Levi V. Fred, 807.
V. Legg, 109.
Levitzky v. Canning, 10.
Levy V. Cox, 195.
V. Gadsby, 14.
V. Gray, 362.
V. McDowell, 268.
Lewellen v. Garrett, 856.
Lewis V. Albemarle & R. R. Co.,
909.
V. Baca, 847, 854.
V. Christie, 526, 527.
V. Hodgdon, 560..
V. Kramer, 227.
V. Lewis, 805.
V. May, 832.
V. Phoenix Mut. Life Ins. Co.,
195.
V. Rice, 65, 380.
V. Simon, 378.
V. State, 200, 359, 498, 544, 646,
686, 731, 764.
V. Western Union Tel. Co., 877,
913.
Lewton V. Hower, 43.
Lexington F., L. & M. Ins. Co. v.
Paver, 197.
Leydecker v. Brintnall, 334.
Leyenberger v. Paul. 168.
Liberty Ins. Co. v. Ehrllch, 882.
Lichty V. Tannatt, 823.
Licking Rolling Mills Co. v. Fisch-
er, 853.
Lieuallen v. Mosgrove, 366.
Life Ins. Co. v. Francisco, 329.
Lightner v. Menzel, 805.
Lilburne's Case, 36, 37.
Lillie V. Brotherhood of Railway
Trainmen, 365.
Lilly V. Paschal's Ex'rs, 301.
Lime Rock Bank v. Hewett, 891.
Linbeck v. State, 613.
Linch V. Paris L. & G. Co., 16, 254.
Lincoln v. Battelle, 26.
V. Claflin, 341, 824, 844.
Lindblom v. Sonstelie, 828.
Linderman v. Sheldon, 96.
Lindley v. Sullivan, 188.
Lindsay v. City of Des Moines, 216,
879.
V. Kansas City, Ft. S. & M. R.
Co., 889.
V. People, 482.
V. State, 645.
TABLE OF UAHKH.
[EEFEBENCES ABE TO PAGES.]
Lindsey t. Perry, 771.
V. Sanderlin, 820.
Line v. State, 621, 622, 729, 733.
Uner v. State, 65, 185, 200, 362, 363,
672.
Lingle v. Kitchen, 874.
Links V. State, 465, 467.
Linn v. Naglee, 909.
V. Wriglit, 292, 302.
Linney v. Wood, 865.
Linton v. Allen, 836, 843, 847, 850, 853.
V. Housh, 846, 853.
Linville v. Welch, 175.
Lipprant v. Lipprant, 295, 784.
Liskosski v. State, 445.
List V. Kortepeter, 856.
Lister v. State, 292, 320.
Little V. McGuire, 216, 516, 575.
V. Martin, 849, 857.
Y. Munson, 213.
V. Norris, 798.
V. State, 154, 156, 357, 401, 661.
Y. Superior Rapid Transit Ry.
Co., 563.
V. Williams, 299.
Little Miami R. Co. v. Fitzpatrick,
804.
V. Washburn, 830.
Little Rock Granite Co. v. Dallas
County, 808, 809.
Little Rock Traction & Electric Co.
V. Trainer, 394.
Little Rock & F. S. Ry. Co. v.
Barker, 63.
V. Henson, 12.
V. Trotter, 195, 201.
V. Wells, 76.
Little Schuylkill Navigation Rail-
road & Coal Co. V. French, 904.
Littleton V. State, 151, 664, 675-677.
Litzielman v. Howell, 285.
Livermore v. Stine, 914.
Liverpool & L. Ins. Co. v. Gunther,
469.
Liverpool & L. & G. Ins. Co. v.
Bnde, 302, 597.
V. Joy, 152.
V. Sanders, 832.
Livingston v. Cooper, 857.
V. Hudson, 208.
V. Maryland Ins. Co., ,360, 375.
Llewellyn Steam Condenser Mfg.
Co. V. Malter, 63.
Lloyd V. Carter, 390, 392, 393.
Lobdell V. Hall, 171. 807.
Lobenstein v. Pritchett, 369.
Locke V. Priestly Express Wagon
& Sleigh Co., 196, 202.
V. Sioux City & P. E. Co., 903.
Lockhart v. Camfleld^ 765.
V. State, 493, 743, 747.
Lockwood V. Beard. 850.
V. Crawford, 26, 27.
V. Nelson, 886.
Lodge V. Gatz, 90'8.
Loeb V. Weis, 150, 159.
Lofland v. Goben, 906.
Loggins V. State, 720, 892.
Logston V. State, .268, 284.
Lohart v. Buchanan, 799.
Lohman v. McManus, 89.
Lomax v. Strange, 798.
Lombard v. Chicago, R. I. & P. R.
Co., 911. '
Long V. Bolen Coal Co., 897.
V. Eakle, 209.
v. Hunter, 183, 184, 369.
V. McCauley, 16, 23, 24.
V. Pool, 381.
V. Ramsay, 89, 98.
V. Rodgers, 20, 337, 339, 383.
V. State, 259, 265, 281, 292, 323,
354, 355, 364, 379, 484, 485,
526, 619, 624, 626, 633, 671,
723, 729, 733.
V. Township of Milford, 78, 79.
V. Travellers' Ins. Co., 533.
Long Island Ins. Co. v. Hall, 196.
Longino v. Ward, 402.
Longley v. Com., 368, 722, 876.
Longnecker v. State, 232, 233.
Loomis v. Simpson, 822.
Loorman v. Second Ave. R. Co.,
875, 909.
Loper v. Robinson, 865, 867, 878.
Lopez V. State, 441, 696.
Lorain v. Hall, 96.
Lord V. Lord, 908.
V. State, 43.
Lorie v. Adams, 100, 105, 813.
Loucks V. Chicago, M. & St. P. Ry.
Co., 539.
Louden v. East Saginaw, 887.
Loudenback v. Collins, 899.
Loudon v. MuUins, 447.
Loughley v. Com., 912.
Louis, V. & T. H. R. Co. v. Funk,
908.
Louisiana Extension Ry. Co. v.
Carstens, 212.
TABLE OF CASES.
971
[BEFEREKCES ABE TO PAGES.]
Louisville, B. & St. L. C. K. Co. v.
Spencer, 298, 311.
V. Utz, 81, 82.
Louisville, N. A. & C. Ry. Co. v.
Balch, 453.
V. Buck, 451, 452.
V. Falvey, 727, 858.
V. Prawley, 451-453.
V. Grantham, 298, 860, 914.
V. Hart, 927.
V. Hubbard, 297, 344, 389, 398.
V. Jones, 860, 906, 908.
V. Nicholai, 890.
V. Porter, 878.
V. Shanklin, 903.
V. Shanks, 338, 879.
V. Shires, 184, 187, 570, 571.
V. Stommel, 570, 571.
V. White, 906.
V. Wood, 332.
V. Wright, 831, 889, 890, 902,
906, 915.
Louisville, N. O. & T. Ry. Co. v.
Suddoth, 394.
V. Whitehead, 531, 532.
Louisville & N. R. Co. v. Banks,
238, 267.
V. Bell, 199.
V. Hall, 280, 287, 795.
V. Hurt, 227, 239, 370.
V. Kelly, 903.
V. McKenna, 16.
V. Mattingly, 182, 184, 189.
V. Miller, 572.
V. Orr, 851, 861, 899, 906.
V. Rice, 239.
V. Sandlin, 151.
V. Sullivan Timber Co., 913.
V. Ward, 237.
V. Webb, 239.
V. White, 768.
V. Wynn, 302.
Loustaunau v. Lambert, 898.
Love y Gregg, 244.
V. Moynehan, 829, 838, 839.
V. Wyatt, 184, 185.
Lovejoy v. State, 578.
Low V. Deiner, 883.
V. Freeman, 425.
V. Hall, 327.
Lowe V. Lehman, 864, 865.
V. Minneapolis St. Ry. Co., 136.
V. State, 551, 559, 560.
Lowell V. Gathbright, 805.
Lowenberg v. People, 586.
Lower v. Franks, 461, 834, 852, 861.
Lowery v. Rowland, 773. '
Lowrimore v. Palmer Mfg.- Co., 367,
918.
Lowry v. Beckner, 179, 180.
V. Mt. Adams & E. P. Incline
Plane Ry. Co., 234.
Lucas V. Brooks, 227.
V. Snyder, 14.
V. State, 145, 525.
Lucas Market Sav. Bank v. Gold-
soil, 148, 149.
Lucia V. Meech, 199.
Lucio V. State, 310, 320.
Luckhart v. Ogden, 17, 21.
Luckie v. Schneider, 64, 367.
Ludwig V. Sager, 153, 158.
Lueck V. Heisler, 303, 312.
Luedtke v. Jeffery, 813.
Lufkins v. Collins, 168.
Luke V. Johnnycake, 901.
Lukens v. Ford, 905.
Lum V. State, 441.
Lundy v. State, 686.
Lunge V. Deal, 279.
Lungren v. Brownlie, 297.
Lunsford v. Dietrich, 740, 761.
Lurssen v. Lloyd, 199.
Lusk V. Throop, 198.
Luster v. State, 263, 265.
Lutterbeck v. Toledo Consolidated
St. R. Co., 332, 383.
Lutton V. Town of Vernon, 141.
Luttrell V. Martin, 328, 332.
Lutz V. Fount, 892.
Lycoming Ins. Co. v. Schreffler, 382.
Lyle V. McCormick Harvesting
Mach. Co., 340, 479.
Lynch v. Bates, 518, 762.
V. Johnson, 308.
V. State, 49.
V. Welsh, 382.
Lyon V. George, 104, 447.
V. Kent, 349, 383, 384.
V. State, 320, 324.
Lyons V. Carter, 183, 195.
V. People, 672.
V. Thompson, 82L
Lytle V. Boyer, 359.
V. Lytle, 799.
Ljrts V. Keevey, 565.
Lytton V. Baird, 906.
972
TABLE OF CASES.
[BEFERENCES ABE TO PAGES.]
M.
M. Forster Vinegar Mfg. Co. T.
Guggemas, 871.
McAdory v. State, 249.
McAfee v. State, 620.
McAleer v. State, 146.
McAllister v. Barnes, 181.
V. Engle, 813, 822.
V. Ferguson, 234.
McAlpin V. Ziller, 861.
McAlpine v. Mangnall, 833.
V. State, 658.
McAnally v. State, 631.
McArthur v. State, 664.
McBaine v. Johnson, 187, 365.
McBeth V. Craddock, 915.
McBride v. Banguss, 773.
V. Thompson, 886.
McBurney v. Cutler, 823.
McCabe v. City of Philadelphia,
241, 242.
McCahan v. Wharton, 886.
McCaleb v. Smith, 179-181, 331,
333, 821.
McCall V. Seevers, 883, 884.
V. State, 779, 780.
McCallister v. Mount, 2, 269, 270,
272-274, 276.
McCalment v. State, 286.
McCamant v. State, 696.
McCammon v. Cunningham, 339.
McCandless v. State, 719.
McCann v. TJllman, 183, 251.
McCart v. Squire, 806.
McCarthy v. State, 47, 53.
McCartney v. McMullen, 238, 240,
241.
McCarty v. Harris, 370.
V. State, 750.
McCarvel v. Phenix Ins. Co., 307.
McCary v. Stull, 882.
McCasIand v. Kimberlln, 546.
McCaughey v. State, 906.
McCausland v. Cresap, 298.
McClafferty v. Philp, 739.
McClary v. State, 298.
V. Stull, 415, 892.
McClay v. State, 271.
McClearland v. State, 885.
McClellan v. Pyeatt, 824, 825.
V. State, 685.
McClelland v. Burns, 902.
V. Louisville, N. A. & C. Ry.
Co., 421, 442.
McCleneghan v. Omaha & R. V. R.
Co., 167.
McClernand v. Com., 646.
McClintock v. Chamberlin, 892.
McClure v. People, 258.
McClurkan v. Byers, 480,
McClurkln t. Ewing, 805, 837.
McCole V. Loehr, 168, 169.
McCollom V. Indianapolis & St. L.
R. Co., 231.
McCombs V. North Carolina R. Co.,
78.
McConkey v. Com., 549.
McConnell v. State, 78, 79, 379.
McCook V. Harp, 297.
McCord V. Blackwell, 888.
V. State, 409.
McCorkle v. Simpson, 238.
McCormick v. Cheveral, 15.
V. City of Monroe, 555.
V. Kelly, 170.
V. Ketchum, 2, 275.
V. Louden, 304.
V. Queen of Sheba Gold Min.
Mill Co., 876, 909.
McCormick Harvesting Mach. Co.
V. Hayes, 365.
V. Sendzikowski, 409, 410.
V. Volkert, 377.
McCorry v. King's Heirs, 5.
McCoubrey v. German-American
Ins. Co., 365.
McCown V. Shrimpf, 76.
McCoy V. Bayeman, 467.
V. State, 746, 885, 891.
McCracken v. "Webb, 159.
McCraney v. Crandall, 560.
McCready v. Phillips, 190.
McCreery v. Everding, 168, 812.
McCreery's Adm'x v. Ohio River R.
Co., 227.
McCrory v. Anderson, 427, 461, 915,
917.
McCulley v. State, 647.
McCulloch V. Campbell, 195.
McCuUough V. State, 672.
McCurdy v. Binion, 896.
McCutchen v. Loggins, 210.
McCutchen's Adm'rs v. McCutchen,
18.
McDaneld v. Logi, 798.
McDaniel v. Crosby, 415.
V. State, 56, 199.
McDeed v. McDeed, 775.
McDermott v. State, 548, 903, 906.
TABLE OP CASES.
973
[REFERENCES ABE TO PAGES.]
McDonald v. Beall, 63.
V. Bice, 217.
V. Carson, 381, 386, 820.
V. Clough, 832.
V. Cobb, 807.
V. Fairbanks, Morse & Co.,
356, 357.
V. International & G. N. Ry.
Co., 155.
V. Johnson, 797.
V. McDonald, 195.
V. Richolson, 454.
V. State, 47, 48, 53, 558.
MacDonald v. United States, 830.
McDonell V. Rifle Boom Co., 510,
512.
McDonnell v. Ford, 84.
McDonough v. Miller, 227.
V. Sutton, 887.
McDougal V. State, 167.
McDougall V. Shirley, 93.
McDowell's Ex'r v. Crawford, 102.
McDuffie V. Bentley, 355.
McElhaney v. State, 855.
McBlven v. State, 671.
McElya v. Hill. 146.
McBntire v. Brown, 167.
McEwen v. Morey, 266, 280.
V. Springfield, 592.
McFadden v. Ferris, 205.
McFadin v. Catron, 556.
McFall V. McKeesport & Y. Ice Co.,
85.
McFarland v. People, 600, 602.
V. Southern Imp. Co., 381, 799.
V. WofEord, 146.
McFeters v. Pierson, 797, 828.
McGar v. National & Providence
Worsted Mills, 374.
McGarr v. National & Providence
"Worsted Mills, 184.
McGavock v. Ward. 360.
McGee v. West. 197, 200.
V. Wineholt, 360.
McGehee v. Lane, 232, 235.
V. State, 824.
McGhee v. Grady, 833.
V. Smith, 597.
V. Wells, 116, 196, 877, 909.
McGill V. Hall, 773.
McGlnnis v. Kempsey, 903, 907.
V. Missouri Pac. Ry. Co., 216.
McGonegal v. Walker, 890.
McGonigle v. Daugherty, 871.
MacGowan v. Duff, 197.
McGowan v. Larsen, 222.
V. State, 43.
McGown V. International & G. N.
Ry. Co., 232.
McGrath v. Metropolitan Life Ins.
Co., 243.
McGregor v. Armill, 210, 897.
V. Penn, 28.
McGrew v. Missouri Pac. Ry. Co.,
210, 215, 914.
v. State, 620.
McGuffle V. State, 56.
McGuire v. People, 662.
V. State, 404, 677, 884, 887.
McHale v. Oertel, 299.
McHard V. Ives, 103.
McHenry v. Marr, 14, 15.
McHugh V. State, 353, 382.
Mcllvaine v. Mcllvaine, 892.
Mcintosh V. Crawford. Co. Com'rs,
899.
V. Kilbourne, 856.
V. Mcintosh, 597.
V. Smith, 199.
Mclver v. State, 724.
McJunkins v. State, 286.
McKay v. Evans, 227. 822.
V. Friebele, 838, 857.
V. Leonard, 880.
McKean v. Wagenblast, 21.
McKee v. People, 755.
V. State, 500, 660.
McKeever v. Market St. R. COm
891.
McKell V. Wright, 827.
MoKelvey v. Chesapeake & O. Ry.
Co., 917.
McKenna v. Hoy, 81.
McKenzie v. Remington, 148, 357.
v. Sykes, 28.
McKeon v. Citizens' Ry. Co., 200,
910.
McKinley v. Ensell, 102.
McKinney v. Fort, 190.
V. Guhman, 763.
V. Hartman, 217.
V. Nunn, 302.
V. Powers,' 807.
V. Shaw & Lippencott Mfg.
Co., 846.
V. Snyder, 160.
McKinnon v. Atkins, 806.
V. Morrison, 820.
McKinsey v. McKee, 841.
McKinzie v. Hill, 205.,
974
TABLE OF CASE5S.
[KErEEENCES ABB TO PAGES.]
McKleroy v. State, 647, 659.
McKnight v. Bell, 11.
V. Chicago, M. & St. P. Ry.
Co., 305.
T. Dunlop, 465.
V. Mathews, 252.
V. Ratcliff, 212.
McLain v. Com., 150.
V. State, 624, 743, 745.
V. Winchester, 854.
McLanahan v. Universal Ins. Co.,
89, 130.
McLane v. Elder, 303.
McLean v. Clark, 195, 507, 563, 564.
V. Crow, 532.
V. Wiley, 365.
McLean County Bank v. Mitchell,
162.
McLellan v. Wheeler, 116, 217.
McLemore v. Nuckolls, 849, 855.
McLennan v. Chisholm, 868.
McLeod V. Ellis, 900.
V. Fourth Nat. Bank of St.
Louis, 10.
V. Sharp, 776.
McMahon v. Flanders, 195.
V. New York News Puh. Co.,
917.
V. O'Connor, 329, 331, 336, 380.
V. Sankey. 332.
V. State, 279.
McManus v. Woolverton, 81.
McMechen v. McMechen, 162, 169,
227.
McMeen v. Com.. 301, 681.
McMillan v. Baxley, 184.
V. Burlington & M. R. Co., 846
852.
T. State, 802.
McMinn v. Whelan, 125, 126.
McMullen v. Kelso, 839.
V. State, 732.
McNairy v. Thompson, 892.
McNamara v. Dratt, 228.
V. MacDonough, 891.
Y. State, 374.
McNeally v.- State, 486.
McNeil V. State, 430-433.
McNeill V. Arnold, 205, 884.
V. Massey, 322.
McNichols V. Nelson, 914.
McNulta V. Jenkins, 146, 876, 911.
McPhee v. McDermott. 847.
McPherson v. FoMSt, 239.
V. Hall. 809.
McPherson v. McPherson, 139, SU8.
V. St. Louis, L M. & S. Ry. Co.,
172, 174.
V. State, 56.
McQuay v. Richmond & D. R. Co.,
70.
McQueen v. Fletcher, 896.
V. State, 154, 158, 581, 588.
McQuillan v. City of Seattle, 303,
304.
McQuown V. Thompson, 11.
McRae v. Scott, 7, 102.
McRae's Adm'r v. Evans, 300, 327.
MacRitchie v. Johnson, 11.
McSwain v. Howell, 805.
McTyier v. State, 762. 891, 893.
McVeigh v. State, 107.
McVey v. St. Clair Co., 228, 232,
234, 235, 911.
McVicker v. Conkle, 107.
McWhirter v. Allen, 341.
McWilliams v. Rodgers, 338.
Mabry v. State, 178-180.
Mace V. State, 729, 733.
Machette v. Wanless, 568.
Macintosh v. Bartlett, 822.
Mack V. Snider, 199.
Mackey v. Baltimore, etc., R. Co.,
821.
V. Briggs, 297.
V. Fisher, 806.
V. People. 915.
Mackie v. Central Railroad of
Iowa, 298.
Mackin v. People's Street Ry. & B.
L. & P. Co., 187, 257.
Maclean v. Scripps, 453.
Macon V. Paducah St. Ry. Co., 763.
Macon Consolidated St. R. Co. v.
Barnes, 220, 225, 343.
Madden v. Blythe, 81.
V. State, 275, 644.
Madison v. Com., 445.
Madsden v. Phoenix Fire Ins. Co.,
301.
Maes V. Texas & N. 0. Ry. Co., 241,
245.
Magee v. Badger, 341.
V. Billingsley, 885, 90S.
V. McNeil, 20.
y. State, 780, 782.
Maghee v. Baker. 834.
Magie V. Baker, 822.
Magniac v. Thompson, 844, 904.
Mahan v. Com., 194.
TABLE OF CASES.
975
[eefeeences ake to pages.]
Mahon v. Metropolitan St. Ry. Co.,
369.
Malioney r. Decker, 425, 427.
V. San Francisco & S. M. Ry.
Co., 457.
v. State, 781.
Main v. Oien, 814, 822.
Mainer v. Reynolds, 853.
Maitland v. Citizens' Nat. Bank,
885
Malachi v. State, 269, 276, 743.
Malcom v. Hanson, 847, 850, 854.
Maling v. Crummey, 818.
Mallett V. Swain, 828.
Malllson v. State, 267.
Malone v. Murphy, 739.
V. Robinson, 821.
V. Searight, 799.
V. State, 57, 305.
Maloney v. Roberts, 411.
Malott V. Crow, 876.
Malson v. Fry, 887.
Manchester v. Doddridge, 884.
Mand v. Trail, 906.
Mandigo v. Mandigo, 822.
Manegold v. Grange, 808.
Mangold v. St. Louis, L M. & S. R.
Co., 891.
Manhattan Life Ins. Co. v. Fran-
cisco, 332.
Manier v. State, 268, 278, 284.
Manley v. Boston & M. R. R., 240.
Mann v. Grove, 302.
V. Higgins, 767.
Mann Boudoir Car Co. v. Dupre,
341.
Mannen v. Bailey, 879.
Manning v. Dallas, 918.
V. Gasharie, 286.
V. Union Transfer Co., 901.
Manrose v. Parker, 396.
Mansfield v. Corbin, 101.
Manuel v. Chicago, R. I. & P. R.
Co., 376.
Manufacturing Co. v. Shirley, 293.
294.
March v. Portsmouth & C. R. R.,
882, 892.
Marchand v. Griffon, 368.
Marcom v. Raleigh & A. A. L. R.
Co., 877, 915.
Marcott v. Marquette, H. & O. R.
Co., 897.
Maria v. State, 292, 319.
Marietta & C. R. Co. v. Straer,
804.
Marine Ins. Co. of Alexandria v.
Young, 96.
Mariner v. Pettibone,- 600.
Marion v. State, 200, 413, 716, 717,
883.
Marion County Com'rs v. Clark,
10.
Markel v. Moudy, 239.
Markey v. State, 268.
Marks v. Culmer, 784.
V. King, 469.
V. Robinson, 85.
V. Tompkins, 825.
Marlborough v. Sisson, 339, 340,
389.
Marquadt v. Sieberling, 831.
Marquette, H. & O. R. Co. v. Kirk-
wood, 509.
V. Marcott, 159, 222, 869.
Marquis v. Rogers, 856.
Marr v. Marr, 108.
Marriner v. Dennison, 188, 339.
Marsalis v. Patton, 886.
Marsh v. Cramer, 918.
V. Richardson, 328, 333.
Marshall v. Bingle, 369.
V. Haney, 209, 340.
V. Flinn, 381.
V. Lewark, 842, 847, 848, 852.
V. Morris, 115.
V. Oakes, 815.
V. Shibley, 843, 850.
V. Sloan, 200.
V. State, 298, 321, 891.
V. Stine, 349.
Marti v. American Smelting & Re-
fining Co., 64, 66, 68.
Martin v. Davis, 763.
V. Eastman, 187.
V. Hazzard Power Co., 379.
V. Johnson, 233, 239, 241.
V. Leslie, 105.
V. McCray, 471.
V. Martin, 10.
V. Missouri Pac. Ry. Co., 775,
870.
V. Murphy, 903.
V. Nail, 890.
V. People, 81.
V. St. Louis & S. W. Ry. Co.,
246.
V. State; 229, 696, 746, 779, 780,
830, 909, 410, 430, 433, 488.
V. Town of Algona, 529, 895.
v. Union Mut. Ins. Co., 209.
976
TABLE OF CASES.
[references are to pages.]
Martineau v. Steele, 15, 18.
Martinez v. Runkle, 188.
V. State, 194, 196, 748.
Martinowsky v. City of Hannibal,
170.
Marx V. Leinkauff, 83, 226.
V. Schwartz, 188.
Maryland Ins. Co. v. Bathurst, 339.
Maryland & D. R. Co. v. Porter,
227.
Masciieck v. St. Louis R. Co., 77.
Mask V. State, 385, 780, 897, 907.
Masks V. State, 380.
Mason v. Jones, 364.
V. McCampbell, 840.
V. Poulson, 100.
V. Sieglitz, 350, 895.
V. Silver, 212, 213.
V. Southern Ry. Co., 185, 210,
211, 367.
V. State, 193.
V. WMtbeck Co., 383, 387, 391.
Masonic Benev. Ass'n v. Lyman,
824.
Massachusetts Mut. Life Ins. Co. v.
Robinson, 858, 88L
Massengill v. First Nat. Bank of
Chattanooga, 848.
Massey v. Belisle, 28.
V. Wallace, 132.
V. State, 108, 649.
V. Tingle, 43.
Massingill v. State, 367, 782.
Massoth V. Delaware & H. Canal
Co., 89, 95.
Massuere v. Dickens, 90.
Masters v. Town of Warren, 78-80.
Matheson v. Kuhn. 183.
Matkins v. State, 326.
Matson v. Frazer, 190.
Matthews v. Boydstun, 258.
V. Clough, 811, 817.
V. People, 613, 614.
V. State, 5.
Mattice v. Wilcox, 817.
Mattingly v. Lewisohn, 64, 84.
Maurer v. Miday, 886.
V. People, 434, 435.
Mauro v. Piatt, 104, 527.
Maverick v. Maury, 317.
Mawich v. Elsey, 7, 92, 146.
Maxon v. Chicago, M. & St. P. Ry
Co., 828.
V. Clark, 877, 914.
Maxwell v. Hannibal & St. J. R.
Co., 468.
V. Hill, 302.
V. Kent, 232.
V. Prichard, 194.
May V. Gamble, 813, 821, 894.
V. People, 615, 652.
V. State, 165, 441, 495, 644, 645.
V. Wilson, 806.
Mayberry v. Kelly, 339, 346.
V. Leech, 349, 813, 82L
Mayer v. Duke, 302.
v. Walker, 302, 311.
V. Wilkins, 198, 726, 727.
Mayfield v. State, 441, 780.
Maynard v. Fellows, 763.
v. Johnson, 383.
V. Tyler, 140.
V. Vinton, 532, 536.
Mayor of Liberty v. Burns, 448.
Mayor & City Council of Baltimore
V. Norman, 891.
V. Pendleton, 380.
Mays V. Williams, 767.
Mazzia v. State, 262, 264.
Meachem v. Hahn, -245. ^
Mead v. Brotherton, 239.
v. Husted, 768.
V. McGraw, 557, 560.
V. Spaulding, 447.
V. State, 300, 312, 796, 797.
Meade v. Weed, 847, 850, 854.
Meadows v. Truesdell, 101, 114.
Mecartney v. Smith, 185.
Mechanics' Bank of Detroit v.
- Barnes, 452.
Medlin v. Brooks, 159.
v. Wilkins, 239-241.
Meek v. Pennsylvania Co., 864, 866.
Meeker v. Gardella, 813.
Mehurin v. Stone, 888.
Meier v. Morgan, 428.
Meinaka v. State, 275.
Meixsell v. Williamson, 560, 565.
Melledge v. Boston Iron Co., 78.
Melvin v. Bullard, 786.
V. Easley, 538, 787, 788.
V. St. Louis & S. F. Ry. Co.,
189.
Memphis City Ry. Co. v. Logue, 212
Memphis & C. R. Co. v. Whitfield,
897.
Mendelsohn v. Anaheim Lighter Co.
195.
TABLES OF CASES.
977
[rg:febences abe to pages.]
Mendenhall v. Stewart, 914.
Mendes v. Kyle, 239, 245.
Menges v. Muncy Creek Tp., 301.
Menzies v. Kennedy, 84.
Mercer v. Hall, 877, 892, 909.
V. State, 489.
V. Wright, 467.
Mercer Academy v. Rusk, 887, 888.
Merchants' Bank of Canada v. Ort-
mann, 411.
Merchants' Exchange Nat. Bank v.
Wallach, 87.
Merchants' Loan & Trust Co. v.
Lamson, 239, 247, 776. ■
Merchants' Nat. Bank v. State Nat.
Bank, 10.
Merchants' & Planters' Nat. Bank
V. Trustees of Masonic Hall, 544.
Meredith, v. Crawford, 279.
V. Cranberry Coal & Iron Co.,
227.
V. Kennard, 897.
Merguire v. O'Donnell, 805.
Merrick v. State, 856.
V. Wallace, 153.
Merrill v. Hole, 239.
V. Inhabitants of Hampden, 887:
V. Merrill, 822.
V. Packer, 17, 18.
Merritt v. Boyden, 364.
V. Merritt, 153, 178.
V. State, 752.
Mershon v. Bosley, 916.
V. Hood, 301.
V. National Ins. Co., 821.
Meserve v. Delaney, 392, 393.
Messer v. Reginnitter, 198.
V. State, 114, 116.
Messman v. Ihlenfeldt, 368.
Metcalf V. Little Rock St. Ry. Co.,
379.
Metcalfe v. Conner, 212.
Methudy v. Ross, 447.
Metropolitan R. Co. v. Martin, 104,
574.
Metropolitan St. R. Co. v. Johnson,
376.
V. McClure, 65.
Metz v. State, 613, 614.
Metzger v. Wendler, 302.
Mewes v. Crescent Pipe Line Co.,
531.
Mexican Nat. R. Co. v. Musette, 312.
Meyer v. Blakemore, 240, 498, 501,
765.
C2— Ins to Juries.
Meyer v. Boepple Button Co., 221,
365. .
V. Clark, 917.
V. Mead, 389, 392, 778, 902.
V. Meyer, 63.
V. Midland Pac. R. Co., 151.
V. Pacific R. Co., 239, 246, 395.
V. Shamp, 23.
V. Smith, 112.
V. Southern Ry. Co., 911, 914.
V. State, 301.
V. Temme, 843, 848, 852.
V. Thompson, 101.
Meyers v. Com., 627.
V. Wright, 880.
Michael v. Foil, 381.
V. Schroeder, 354.
Michie v. Cochran, 118.
Michigan Ins. Bank v. Eldred, 197,
826.
Mickey v. Com., 647.
Mickle V. State, 700.
Midland Pac. R. Co. v. McCartney,
287.
Miers v. State, 292, 320.
Milburn Wagon Co. v. Kennedy,
303.
Miies V. Davis, 352.
V. Sprague, 455.
V. State, 155.
V. Strong, 763.
V. United States, 647.
Milius V. Marsh, 199, 430.
Milk V. Middlesex R. Co., 838.
Millam v. Southern Ry. Co., 196.
Millar v. Madison Car Co., 556.
Millard v. Lyons, 269, 270.
Millard's Adm'rs v. Hall, 890, 893.
Millay v. Millay, 239.
Miller v. Barber, 773.
V. Bryan, 298.
V. Com., 405.
V. Dayton, 609.
V. Dumon, 152.
V. Dunlap, 16, 18.
V. Eagle Life & Health I»g.
Co., 901.
V. Plorer, 159.
V. Gardner, 812, 813.
V. Garrett, 160.
V. Jones' Adm'r, 886.
V. Kingsbury, 857.
V. Marks, 9.
V. Miller, 100, 232.
V. Mitchel, 266.
978
TABLia OF CASES.
[EEFERENCES ABE TO PAGES.]
Miller v. Mutual Ben. Life Iii3. Co.,
65.
V. People, 547, 638, 652.
V. Preston, 400, 884.
V. Root, 211.
V. Shaokleford, 18.
V. State, 250, 337, 488, 749, 757,
885, 888.
j V. Stewart, 99, 131.
V. Territory, 197.
V. Vermurie, 916.
V. Woolman-Todd Boot & Shoe
Co., 256.
Miller's Case, 36.
Milligan v. Chicago, B. & Q. R. Co.,
101, 104, 570, 914.
Milliken v. Marlin, 205.
Milling V. Hillenbrand, 914.
Millner v. Eglin, 103.
Mills V. Ashe, 885.
V. Buchanan, 353.
V. Haas, 303, 307, 349.
V. Miller, 287.
Milmo V. Adams, 302, 307, 800.
Milne v. Pontchartrain R. Co., 304.
V. Walker, 12, 273.
Milner v. Wilson, 349, 383, 384, 861.
Milton V. Blackshear, 884.
Milton School Dist. v. Bragdon, 428.
Mimms v. State, 141, 465.
V. State, 142, 151, 228.
Mlnich V. People, 556, 566, 652, 653,
661.
Minick V. Gring, 232, 241.
Minister v. Benoliel, 366.
Minnesota Cent. Ry. Co. t. McNa-
mara, 299.
Minot V. Mitchell, 868.
Minter v. Kansas City Hardware
Co., 907.
Missisquoi Bank v. Evarts, 90.
Mississippi Cent. R. Co. v. Miller,
162, 167.
Missouri Furnace Co. v. Abend,
207, 362.
Missouri. K. & T. Ry. v. Brown, 64.
V. Cook, 893.
V. Kirkland, 307.
V. Kirschoffer, 296, 303.
V. Nail, 233.
V. Rogers, 84, 186, 912, 916, 917.
V. Simmons, 227.
V. Thompson, 307.
Missouri Pac. Ry. Co. v. Cassity,
379, 386.
Missouri Pac. Ry. Co. v. Christ-
man, 106.
V. Cullers, 339, 348.
V. Fox, 366.
V. James, 859, 860.
V. Johnson, 369, 779, 784, 806.
V. King, 347, 348.
V. Lehmberg, 72.
V. Martin, 802.
V. Mitchell, 184, 466, 468.
V. Moffatt, 572.
V. Peay, 303, 307.
V. Pierce, 208.
V. Rabb, 836.
V. Schoennen, 871, 907.
V. Williams, 382, 384, 842.
Mitchell V. Charleston Light & Pow-
er Co., 339.
V. City of Plattsburg, 381.
V. Com., 438, 440.
V. Harmony, 89, 130.
V. Hindman, 773.
V. Illinois & St. L. R. & C. Co.,
865.
V. La Follett, 233.
V. Milholland, 344.
V. JVlitchell, 155, 7C3.
V. Potomac Ins. Co., 198.
V. State, 154, 297, 490.
V. Tomlinson, 842.
Mitchinson v. Cross, 6.
Mitts V. McMorran, 465.
Mittwer V. Stremel, 196.
Mixon V. State, 802.
Mobile Sav. Bank v. McDonnell, 239.
Mobile & M. Ry. Co. v. Jurey, 820,
823.
Mobile & O. R. Co. v. George, 820.
V. Wilson, 42, 45.
Mobley v. Charlotte, C. & A. R. Co.,
899.
V. State, 298.
Mode V. Beasley, 884.
Model Mill Co. v. McEver, 239, 250.
Moffatt V. Conklin, 190.
V. Tenney, 400, 800, 801, 805,
826, 827.
Moffltt V. Cressler, 195.
Mohr V. Kinnane, 63, 69.
Monaghan v. Agricultural Fire Ins.
Co. of Watertown, 774.
V. Pacific Rolling Mill Co., 902.
Monarch Cycle Mfg. Co. v. Royer
Wheel Co., 340.
Monroe v. City of Lawrence, 889.
TABLE OF CASES.
979
[REFEREISrCES ABE TO PAGES.]
Monroe v. Douglass, 26.
Mcntag V. Linn, 18, 881.
Montee v. Com., 43.
Montelius v. Atherton, 265.
Montfort v. Hughes, 10.
Montgomery v. Com., 194, 228, 239.
V. Crossthwait, 912.
V. Griffin, 291.
V. Harker, 841.
V. Knox, 913.
V. Scott, 239.
V. State, 43, 696.
V. Swindler, 902.
V. Willis, 895.
Montgomery's Adm'r v. Erwin, 63.
Montgomery's Ex'rs v. Kirksey, 890.
Montgomery & E. Ry. Co. v. Stew-
art, 905.
Mooare v. Harvey, 164, 829.
Moody V. Deutscli, 739.
V. Pomeroy, 427, 428.
V. St. Paul & S. C. R. Co., 843.
V. State, 439.
V. Thomas, 817.
Moon V. City of Ionia, 199.
Mooney v. Kinsey, 878.
V. Olsen, 859.
V. York Iron Co., 81.
Moore v. Brewer, 898.
V. Brown, 295, 297.
V. Chicago, B. & Q. R. Co., 391.
V. City of Kalamazoo, 380.
V. City of Plattevllle, 269, 270,
273.
V. City of Richmond, 883.
V. Columbia & G. R. Co., 132.
V. Des Moines & Ft. D. Ry. Co.,
169.
V. Dickinson, 528.
V. Gilbert, 821.
V. Gwynn, 26, 27.
V. Lynn, 90.
V. Meacham, 96.
V.' Miller, 19.
V. Missouri Pac. Ry. Co., 177,
887
T. Moore', 813, 885, 904.
V. Parker, 381, 868, 901.
V. People, 364.
V. Robinson, 107.
V. Ross, 199, 300.
V. Shields, 298, 312.
V. State, 70, 320, 551, 698, 802,
855. ,
V. Sweeney, 356.
Moore v. Wade, 833.
V. Wilcox, 65.
V. Wingate, 448.
v. Wright, 241, 608.
Moorehead v. Hyde, 201.
Moorehouse v. Donacea, 892.
Mooring v. State, 830.
Moran v. Higglns, 238.
V. McClearns, 99.
V. State, 592.
Mbravee v. Buckley, 431.
Morearty v. State, 196.
Morehead v. Adams, 161.
Morehouse v. Remson, 787, 908.
V. Yeager, 381.
Moresi v. Swift, 564.
Morford v. Woodworth, 888.
Morgan v. Chappie, 843, 855.
V. Durfee, 6, 257.
V. Giddings, 904.
V. Lewis, 301, 310.
V. Peet, 389, 394, 905.
V. Rice, 807.
V. Smith, 300.
V. State, 130, 197, 298, 309, 651.
V. Swann, 298, 310.
V. Territory, 364.
V. Wattles, 72.
Moriarty v. State, 180.
Morisette v. Howard, 351.
Morley v. Eastern Exp. Co., 10.
V. Liverpool & L. & G. Ins.
Co., 336.
Morningstar v. Hardwick, 298, 304.
Morrill v. Lindemann, 194.
Morris v. Brlckley, 10.
V. Gleason, 913.
V. Lachman, 131, 157.
V. Perkins, 197.
V. Piatt, 211-213, 358.
V. Stern, 847.
V. State, 384, 389, 391, 415, 416,
526, 527, 838, 846, 849, 855,
883.
V. Travis, 301.
Morrison v. Burlington, C. R. & N.
Ry. Co., 219.
V. Hammond's Lessee, 64.
V. Myers, 339.
V. State, 278, 47&, 526, 597, 828.
V. Wright, 338,
Morrow v. St. Paul City Ry. Co.,
188.
Morse v. Byam, 897.
V. Close, d06.
980
TABLE OP CASES,
[BEFEEENCES ABE TO PAGES.]
Morse v. Gilman, 823.
V. Weymouth, 19.
Morton v. Gateley, 891.
.V. O'Connor, 151, 206, 207, 575,
576.
V. Stevens, 856.
Mose V. State, 707-709.
Moseley v. State, 495, 782.
V. .Washburn, 238, 427.
Mosely v. State, 740.
Mosher v. Rogers, 188.
Hosier v. StoU, 338.
Moulor V. American Life Ins. Co.,
11.
Mounce v. Byars, 450.
Mt. Olive & S. Coal Co. v. Rade-
macher, 147, 344.
Mousseau v. Dorsett, 905.
Mowry v. Stogner, 14, 23, 24.
Moyers v. Columbus Banking &
Ins. Co., 398.
Muckleroy v. State, 454.
Mudge V. Agnew, 841.
Muehlhausen v. St. Louis R. Co.,
221, 254, 381, 908, 910, 916.
Muely v. State, 368, 514, 518.
Muetze v. Tuteur, 143, 800.
Muir V. Miller, 85, 852.
Muirhead v. Muirhead, 840.
V; Snyder, 896.
Muldowney v. JUinois Cent. R. Co.,
6, 359, 376.
Muldrow V. Roblson, 9.
Mullen V. Bower, 197.
V. Reinig, 833.
V. United States, 203, 360.
Muller V. McKesson, 300, 315.
Mullin V. Spangenberg, 73.
Mullinix v. People, 47, 49, 53, 54.
Mullins V. Cottrell, 255, 257.
T. People, 624.
Mulvaney v. Rosenberger, 301.
Munden v. State, 173.
Munderbach v. Lutz's Adm'r, 301,
366, 382, 896.
Hunger v. City of Waterloo, 910.
Hunn V. Shannon, 852.
Hunroe v. Woodruff, 65.
Murdock v. Sumner, 472.
Murphey v. Virgin, 101, 220.
Murphy v. Bedford, 29.
V. Chicago, R. I. & P. R. Co., 10,
178.
V. City of Cincinnati, 383.
V. Creath, 256.
Murphy v. Farley, 204.
v. Hagerman, 888.
V. Johnson, 837, 840.
V. Lemay, 821.
'v. McNulty, 824.
V. Murphy, 197.
V. People, 905.
V. State, 154, 363, 371, 515, 731,
736, 904.
V. Whitlow, 412.
Hurray v. Com., 161, 912, 915.
V. Pry, 840, 856.
v. New York, L. & W. R. Co.,
245, 411.
V. State, 298, 683, 733, 802.
V. Usher, 807.
V. White, 905.
Murrell v. Johnson's Adm'r, 869.
Muscoe V. Com., 879, 880.
Husgat V. Wybro, 823.
Husgrave v. State, 389.
Husick V. Atlantic & P. R. Co., 208.
Musselman v. East Brandywine &
W. R. Co., 76.
V. Pratt, 895, 896, 902.
V. Wise, 888.
Husser V. Adler, 868.
Mutual Benefit Life Ins. Co. v.
French, 153, 155, 178.
V. Miller, 262, 263, 285.
Mutual Hail Ins. Co. v. Wilde, 152.
Mutual Life Ins. Co. v. Snyder, 295,
303.
Mutual Life Ins. Co. of New York
V. Baker, 311.
Mutual Safety Ins. Co. v. Cohen,
380.
Myatts V. Bell, 349, 851, 851.
Myer v. Brooklyn City R. Co., 140.
V. Pruin, 303, 307.
V. Moon, 216, 217, 822.
Myers v. Bank of Tennessee, 879.
V. Kingston Coal Co., 353, 378.
V. Murphy, 847, 849.
V. Sanders' Heirs, 226.
V. State, 492.
Mynning v. Detroit, L. & N. R. Co.,
376, 380, 385, 386.
Myric v. Hicks, 896.
Myrick v. Merritt, 857.
v. Wells, 5, 7.
N.
Nadenbousch v. Sharer, 830.
TABLE OF CASES.
981
[BEFEEENCES ABE TO PAGES.]
Nance v. Metcalf, 877.
V. State, 802.
Nash V. Drisco, 14.
V. Hoxie, 528.
V. Morton, 458.
Nashville & C. R. Co. v. Conk, 232.
V. Smith, 892.
National Horse Importing Co. v.
Novak, 899.
National Life, Maturity Ins. Co. v.
Whitacre, 895, 896.
National Lumber Co. v. Snell, 262,
264, 282, 283, 415.
National State Bank of Burlington
V. Delahaye, 379.
Naughton v. Stagg, 799.
Navarrow v. State, 696.
Neal V. Patten,' 450.
Nebraska Nat. Bank v. Burke, 910.
Needy v. State's Lessee, 887.
Needham v. King, 772, 870, 871.
. V. People, 392, 397. 405, 865,
881,896.'
Neely v. Merrick, 301.
V. State, 370.
Nehring v. McMurrian, 200, 367.
Neideiser v. State, 727.
Neier v. Missouri Pac. Ry. Co., 26.
Nell V. Abel, 427.
V. Thorn, 11.
Neill V. Jordan, 897.
V. State, 571.
Neilson v. Harford, 15-17, 19, 23, 25.
Nelms V. State, 622.
V. Williams, 83, 176.
Nels V. State, 43.
Nelson v. Dodge, 419, 424.
V. Hardy, 387.
V. Johansen, 146.
V. Robertson, 856.
V. State, 319, 908.
V. Vorce, 505.
V. Warren, 821, 824.
V, Welch, 787.
Nesbitt V. Pearson's Adm'rs, 855.
Nevada Co. v. Parnsworth, 184, 189.
New v. New, 883.
New Albany Woolen Mills v. Mey-
ers, 461.
New Albany & S. R. Co. v. Callow,
840, 857.
New England Fire & Marine Ins.
Co.' v. Wetmore, 896.
New Haven Lumber Co. v. Ray-
mond, 225.
New Orleans Ins. Cb. v. Piaggio,
213, 837;
New Orleans, J. & G. N. R. Co. v.
Statham, 176.
New York, C. & St. L. R. Co. v.
Blumenthal, 100, 109.
New York Firemen Ins. Co. v. Wal-
den, 91, 96, 97.
New York Life Ins. Co. v. Flack,
380.
New York Marine Bank v. Clem-
ents, 854.
New York, P. & N. R. Co. v. Thom-
as, 239, 362.
New York & C. Mining Syndicate
& Co. V. Fraser, 205.
Newall V. Bartlett, 822.
Newbern Com'rs v. Dawson, 386.
Newberry v. State, 237.
Newby v. Chicago, R. I. & P. Ry.
Co., 393.
V. Harrell, 381.
V. Rogers, 846.
V. Warren, 832, 835.
Newcomer v. Hutchings, 888, 906.
Newell v. St. Louis B. & I. Co., 2.
Newkirk v. Cone, 896.
Newman v. Cordell, 340.
V. Edwards, 301.
V. Farquhar, 368.
V. Hazelrigg, 526, 527.
V. McComas, 726, 798, 800.
v. State, 268.
Newport v. State, 903.
Newport News & M. V. R. Co. v.
Deuser, 196.
Newport News & M. V. Co. v.
Pace, 811, 818, 823.
Newton v. Newton, 264, 266, 286,
856.
V. Ritchie, 223.
• v. State, 241, 855.
V. Whitney, 296, 307, 796.
Newton Wagon Co. v. Diers, 76, 77.
Neyland v. Bendy, 302.
V. State, 441.
Niagara County Bank v. Baker, 26.
Niagara Fire Ins. Co. v. De Graff,
897.
Nichol V. Laumeister, 765.
Nicholas v. Kershner, 864.
Nichols V. Mercer, 148.
v. Munsel, 415, 416, 421, 422.
V. State, 359.
Nicholson v. Conner, 865.
982
TABLE OF CASES.
[REFEEENCES ABE TO FAQES.]
Nicholson v. Merrltt, 913.
Nickalaus v. Burns, 208.
Nickels v. Mooring, 379.
Nickles v. Wells, 910.
Nickless v. Pearson, 837.
Nickum v. Gaston, 814.
Nicol V. Crittenden, 297, 605.
Nicoles V. Calvert, 903.
Niles V. Sprague, 454.
Nimon v. Reed, 100.
Nininger v. Knox, 311.
Ninnon v. State, 620.
Nisbet V. Gill, 823.
Nix V. State, 672.
Nixon V. Hammond, 826.
V. State, 905.
Noble V. Bessemer 0. S. Co., 914.
V. Bessemer Steamship Co., 352,
876.
V. Blount, 904, 908.
V. McClintock, 352.
Noblesville & B. G. R. Co. v. Gause,
64.
Noblin Y. State, 824.
Noe V. Hodges, 865, 868.
Noffsinger v. Bailey, 420.
Nolan V. Johns, 292.
Noland v. MoCracken, 552.
V. State, 320.
Noles V. St;ate, 886.
Nollen V. Wisner, 839.
Nolton V. Moses, 90.
Norfleet v. Sigman, 151.
Norfolk & W. R. Co. v. Hoover, 806.
V. Mann, 911.
Norris v. Casel, 906.
V. Clinkscales, 132, 133.
V. Kipp, 198, 369, 379, 387, 798,
805, 821.
V. State, 510.
V. Whyte, 366.
North V. State, 324.
North British & Mercantile Ins. Co.
V. Rudy, 364.
North Chicago City Ry. Co. v.
Gastka, 217.
North Chicago St. R. Co. v. Boyd,
906, 912.
V. Hutchinson, 152.
V. Kaspers, 791.
North Dallas Circuit Ry. Co. v.
McCue, 457.
Northcoate v. Bachelder, 199.
North River Boom Co. v. Smith,
Northern Cent. Ry. Co. v. Husson,
199.
Northern Colorado Irrigation Co. v.
Richards, 896.
Northern Pac. R. Co. v. Babcock,
188, 904.
V. Charless, 886.
v. Conger, 11.
V. Paine, 197, 199, 200.
V. Poirier, 905.
Norton v. Dorsey, 425, 426.
V. Foster, 806, 843.
V. Livingston, 818, 820.
V. McNutt, 418.
V. St. Louis & H. Ry. Co., 179,
181.
Norvell v. Oury, 200.
Norwood V. Boon, 360.
V. City of Somerville, 380.
Noyes v. Pugin, 258.
V. Rockwood, 11.
Nuckolls v. Gaut, 170, 881.
Nudd V. Burrows, 91, 94.
Numan v. Kapp, 885.
Numes v. Bernstein, 18.
Numsen v. Ellis, 904.
Nutting V. Herbert, 884.
Nuzum V.' State, 48.
Nyce V. Shaffer, 807, 829.
0.
Oberbeck v. Mayer, 274.
Obermark v. People, 831, 832.
O'Brien v. Northwestern Imp. &
Boom Co., 152.
O'Callaghan v. Bode, 148, 149.
V. Boeing, 359.
Occum Co. V. A. & W. Sprague Mfg.
Co., 90.
Ocean Steamship Co. v. McAlpin,
159, 211.
v. Williams, 191.
Och v. Missouri, K. & T. Ry. Co.,
196.
Ocheltree v. Carl, 880.
V. McClung, 815.
O'Connell v. St. Louis, C. & W. Ry.
Co., 72.
V. State, 302, 443.
O'Connor v. Chicago, M. & St. P.
Ry, Co., 829.
V. Guthrie, 420, 424,
V. Langdon, 881.
V. State, 495.
TABLE OP CASES.
983
[BEFEBENCES ABE TO PAGES.]
O'Connor & Harder Range & Fur-
nace Co. V. Alexe, 207.
Oddie V. Mendenhall, 872.
Odette V. State, 455.
Odom V. Woodward, 303.
O'Donnell v. Rodiger, 162.
V. Segar, 262, 267, 280.
O'Donohue v. Simmons, 774.
Odum V. Creighton Mining & Mill-
ing Co., 364.
Ogborn v. Hoftman, 166.
Ogden V. Kelsey, 845.
V. Kirby, 241.
Ogle V. State, 783.
Oglesby v. Missouri Pac. Ry. Co.,
119.
Ogletree v. State, 739, 741.
O'Halloran v. Kingston, 888.
O'Hara v. King, 861.
V. Richardson, 908.
V. Wells, 897.
Ohio, I. & W. Ry. Co. v. Klein-
smith, 911.
Ohio & M. Ry. Co. v. Buck, 570.
V. Craucher, 543.
V. McCarthy, 382.
V. Pearcy, 100.
V. Sauer, 278.
V. Smith, 217.
V. Stansberry, 276.
V. Stein, 885.
Ohliger v. City of Toledo, 342, 876,
910.
Oldneld V. New York & H, R. Co.,
822.
Oleson V. Lake Shore & M. S. Ry.
Co., 10.
Olive V. State, 368, 482, 483, 485.
Oliver v. Cameron, 857.
V. Moore, 233.
V. Ohio River R. Co., 197.
V. Phelps, 822.
v. Sale, 869, 892.
V. State, 106, 514, 575, 726, 781,
881
V. Sterling, 175, 199.
011am V. Shaw, 332.
Olsen V. Meyer, 899.
v. Oregon Short Line & tJ. N.
Ry. Co., 572.
Olson V. Neal, 895.
Oltmanns v. Pindlay, 814.
Omaha Belt Ry. Co. v. McDermott,
506.
Omaha Pair & Exposition Ass'n v.
Missouri Pac. Ry. Co., 726, 911,
914.
Omaha Pire Ins. Co. v. Dierks, 807.
Omaha Loan & Trust Co. v. Doug-
las County, 184, 196.
Omaha, N. & B. H. R. Co. v. O'Don-
nell, 799.
Omaha & C. B. Ry. & Bridge Co. v.
Levinston, 909.
Omaha & P. Land & Trust Co. v.
Hansen, 801, 811.
Omaha & R. D. R. Co. v. Walker,
829.
O'Malley v. Dorn, 855.
Omohundro v. Emerson, 189.
O'Neal V. Knippa, 871.
v. O'Neal, 364.
O'Neil V. Capelle, 393.
V. Dry Dock, E. B. & B. R. Co.,
331.
V. Orr, 394.
V. State, 665.
V. Willis Point Bank, 295, 302.
O'Neill V. Woltesohn, 838.
Orcutt V. Nelson, 472.
Ordway v. Sanders, 227, 346.
Oregon Railway & Navigation Co.
v. Galligher, 842.
Orleans v. Piatt, 11, 227.
Orman v. Mannix, 350.
O'Rourke v. Vennekohl, 379.
Orr v. Cedar Rapids & M. C. Ry.
• Co., 11.
V. Garabold, 313.
V. Jason, 391.
V. Quimby, 93.
V. State, 743, 744.
Orth V. Clutz's Adm'r, 80.
Osborn v. State, 8, 551, 553.
Osborne v. Phenix Ins. Co., 368.
V. Simmerson, 908.
V. State, 349.
V. Wilkes, 458.
Osceola Tribe, No. 11, v. Rost, 14,
15, 17, 23.
Osen V. Sherman, 368.
Osgood V. Lansil, 299, 317, 901.
O'Shields v. State, 418, 422, 423.
Ott V. Oyer's Ex'x, 227, 305, 774.
Ottawa, O. & P. R. V. R. Co. v.
McMath, 768, 773, 911, 915.
Otto V. Bent, 162, 170, 897.
V. St. Louis, I. M. & S. Ry. Co.,
299.
984
TABLE OF CASES.
[EEFEEENCES ABE TO PAGES.]
Otto V. State, 802.
Oury v. Saunders, 773.
Over v; Schiffling, 338, 389.
Overcash v. Kitchie, 390, 392.
Overland Mail & Exp. Co. v. Car-
roll, 881.
Overlin v. Kronenberger, 846.
Owen v. Long, 64.
V. Owen, 292, 293.
V. Palmour, 8, 481.
Owen's Case, 36.
Owens V. Callaway, 839.
V. State, 488, 781, 833.
Owlngs V. Trotter, 359.
Oxford V. State, 324.
Oslsy Stave Co. v. Staggs, 821.
Oxnard v. Swanton, 908.
Oyster v. Longnecker, 98.
Ozburn v. State, 821.
P. J. "Willis & Bro. v. Sims' Heirs,
232, 233.
Paee v. Payne, 849, 850.
V. State, 751.
Pacific R. Co. V. Brown, 843.
V. Nash, 850, 853.
Packard v. Bergen Neck Ry. Co.,
807.
Paddleford v. Cook, 806.
Paddock v. Somes, 555.
Paden v. Griffitti, 839.
Padron v. State, 370, 619.
Paducah Railway & Light Co. v.
Ledsinger, 372.
Page V. Finley, 317.
V. Kinsman, 420.
V. Town of Sumpter, 304, 411.
Paine v. Hutchins, 422.
V. Kohl, 64.
V. Ringold, 853.
Palmer v. Holland, 341.
V. Wright, 840.
Palmerston v. Territory, 656, 657.
Palmore v. State, 162, 383, 886.
Panama R. Co. v. Johnson, 406,
407.
Panhandle Nat. Bank v. Emery, 240.
Pannell v. Com., 534.
Pardridge v. Cutler, 917.
Paretti v. Rebenack, 190, 211.
Parham v. State, 324, 901.
Paris V. Dupre, 820.
V. State, 520, 779-781.
Parish V. Eager, 855.
Park Bros. & Co. v. Bushnell, 830.
Parker v. Chancellor, 233, 268, 402.
V. Dubuque S. W. R. Co.. 908.
V. Fields, 887.
V. Fisher, 896.
V. Georgia Pac. Ry. Co., 290,
379, 384, 456.
V. Glenn, 80.
V. Ibbetson, 17.
V. Middleton, 835.
V. Otis, 187, 371.
V. Pierce, 833, 835.
V. Stafford, 918.
V. State, 53, 195, 359, 360, 638,
743, 895.
Parkersburg Nat. Bank v. 41s, 64.
Parkhill v. Town of Brighton, 376.
Parkhurst v. Masteller, 256, 885.
V. Northern Cent. R. Co., 361.
Parks V. Ross, 9.
Parlin v. Finfrouck, 238, 242.
Parlin & Orendorff Co. v. Coffey,
369.
v. Miller, 207.
Parmlee v. Sloan, 884.
Parnell v. State, 549.
Parr v. State, 488.
Parris v. State, 266, 279.
Parrish v. Bradley, 386.
V. Pensacola & A. R. Co., 832.
v. State, 33, 43, 177, 178, 909.
Parsons v. Brown, 300, 327.
v. State, 168, 914.
Parsons Band-Cutter & Self-Feedei
Co. V. Haub, 365.
Partee v. Georgia R. Co., 891.
Partridge v. Forsyth, 206, 342.
V. Gildermelster, 183.
Paschal v. Davis, 195.
Paschall v. Williams, 873, 874.
Pasley v. English, 208.
Patchell V. Jaqua, 86, 838, 843, 847,
852, 857, 900, 906.
Patchen v. Parke & Lacy Mach. Co.,
820.
Pate V. First Nat. Bank of Aurora,
386.
V. State, 624, 631.
V. Wright, 383.
Paterson v. Blaisdell, 301.
Patrick Red Sandstone Co. v. Sko-
man, 65, 805, 906.
Patterson v. City of Boston, 472,
473.
V. Colebrook, 93.
TABLE OF CASES.
985
[EEFEEiaSfCES ABE TO PAGES.]
Patterson v. Com., 646.
V. Dushane, 12.
V. Fowler, 877.
V. Hitclicock, 891.
V. Jenks, 338.
V. Kountz, 262, 268, 353.
V. Mclver, 381, 386.
V. State, 74, 802.
Patton V. Royal Baking Powder
Co., 822.
V. State, 367.
Paukett V. Livermore, 379, 390, 398.
Paul T. Meek, 72.
V. State, 5^0.
Paulette v. Brown, 556, 563.
Pavey v. Burch, 471.
Pawson's Adm'rs v. Donnell, 188.
Payne v. Com., 266, 279-281, 682.
V. Crawford, 158, 210.
V. Grant, 878.
V. Noon, 301, 309.
T. Payne, 328, 332.
Pace v. State, 823.
Peak V. People, 564, 565.
Pearce v. Com., 863.
Pearl v. State, 613.
Pearson t. Adams, 154, 184, 195,
240, 824.
T. Dryden, 188.
Peart t. Chicago, M. & St. P. Hy.
Co., 357, 383.
Pease v. Catlin, 76.
Peck T. Boggess, 798.
V. Carmichael, 887.
Pedan v. Hopkins, 359.
Peden V. Moore, 838, 840.
V. State, 833.
Peebles v. Graham, 189.
Peeler v. Guilkey, 302.
Peet V. Chicago, M. & St. P. Ry. Co.,
798.
V. Dakota P. & M. Ins. Co., 10.
Pelrson v. Duncan, 227.
Pelitier v. Chicago, St. P., M. & 0.
Ky. Co., 774.
Pellum V. State, 631, 634, 800.
Pena v. State, 193.
Penberthy v. Lee, 268, 283, 285.
Pence v. Langdon, 895.
Pendleton St. R. Co. v. Stallmann,
151, 163, 864.
Penfield v. Carpender, 464.
Penn v. Collins, 829.
Pennell v. Dawson, 89, 90, 95.
Pennington v. Woodall, 765.
Pennock y. Dialogue, 294-296, 303.
Pennsylvania v. Bell, 33, 43.
Pennsylvania Canal Co. v. Harris,
227, 882.
Pennsylvania Coal Co. v. Kelly, 899,
900.
Pennsylvania Co. v. Conlan, 5, 241.
V. Prana, 28.
V. McCormack, 860.
V. Roney, 868.
v. Roy, 465, 467.
V. Rudel, 379.
V. Rusie, 903.
V. Stoelke, 238, 242.
V. Swan, 841.
V. Versten, 512.
V. Weddle, 344.
Pennsylvania, D. & M. Steam Nav.
Co. V. Dandridge, 344.
Pennsylvania Mining Co. v. Brady,
85.
Pennsylvania R. Co. v. Coon, 904.
V. McTighe, 66, 175.
V. Page, 308.
V. Zebe, 359.
Penobscot R. Co. v. White, 199.
Pensacola & A. R. Co. v. Atkinson,
353, 363, 383.
Peoria, D. & E. Ry. Co. v. Puckett,
205-207.
Peoria Grape Sugar Co. v. Frazer,
17, 18.
Peoria M. & F. Ins. Co. v. Anapow,
362.
Perkins v. Attaway, 76.
V. Davis, 150.
V. Hitchcock, 895.
V. Maus, 883.
V. School Dist. No. 2, Greene
County, 447.
V. State, 457.
Perlins v. Attaway, 77.
Permlee v. Adolph, 152.
Perot V. Cooper, 882.
Perrette v. City of Kansas City, 365,
910.
Perrott v. Shearer, 92.
Perry v. Dubuque S. W. Ry. Co.,
160.
V. Makemson, 906.
V. State, 685, 699, 748, 749.
Persons v. State, 537.
Peshine v. Shepperson, 341, 348.
Peterson v. Chicago, M. & St. P. Ry.
Co., 910.
986
TABLE OP CASES.
[BEFEBBNCES ABE TO PAGES.]
Peterson v. State, 152.
PeopU
V. Toner, 299, 312.
V.
Peterson's Ex'rs v. Ellicott, 726.
V.
Petrie v. Columbia & G. R. Co., 210.
V.
Pettett V. Van Fleet, 834.
V.
Pettibone v. Maclem, 859, 865.
T. Smith, 184.
V.
Pettigrew v. Barnum, 368, 380.
V.
Pettingill v. Elkins, 90.
v.
V. Porter, 7.
V.
Pettis V. Pier, 803.
V.
Petty V. Anderson, 89.
V.
Pettyjohn v. Liebscher, 473.
V.
People V. Ah Chung, 712.
V.
V. Ahern, 649.
V.
V. Ah Pong, 264, 851.
V.
V. Ah Fung, 178.
V.
V. Ah Gee Yung, 689.
V.
V. Ah Ki, 743, 744.
V.
V. Ah Sing, 565, 747.
V. Ah Wee, 297, 318.
V.
V. Ah Yute, 311.
V. Alsemi, 159.
V.
V. Ammerman, 666.
V.
V. Anderson, 43, 787, 905, 916.
V.
V. Anthony, 708, 711, 712.
V.
V. Arlington, 558, 562, 735.
V.
V. Arnold, 577, 578.
V.
V. Bagnell, 858, 902.
V.
V. Barry, 99.
V.
V. Bawden, 438.
V.
V. Beaver, 831.
V.
V. Beeler, 262, 264.
V.
V. Bell, 581, 582, 586.
V.
v. Bellamy, 709.
V.
V. Bemmerly, 653, 654.
V.
V. Bene, 570, 575, 576.
V.
V. Bennett, 13.
V.
V. Best, 160, 200.
V.
V. Boggs, 140, 143.
V. Bonds, 65, 267, 271, 288, 377.
V.
V. Bonney, 272, 485, 486.
V.
V. Bourke, 851.
V.
V. Bowers, 734. .
V.
V. Bowman, 586.
V.
V. Brannon, 653, 654.
V.
V. Brick, 438.
V.
V. Bristol, 813.
V.
V. Brooks, 594.
V.
V. Brow, 521.
V.
V. Brown, 198, 283, 579, 608,
V.
666.
V.
V. Bruggy, 874.
V.
V. Buddensieck, 807.
V. Bamberger, 2C4, 862.
V.
3 V. Burns, 405, 639.
Bushton, 756.
Buster, 63.
Butler, 492, 503.
Byrnes, 255, 257, 292, 319
320, 441, 443.
Caldwell, 143, 799.
Calvin, 500, 515.
Campbell, 78 168, 169.
Carey, 124, 135.
Carrillo, 264, 579, 726.
Carroll, 148, 149, 161.
Casey, 105, 592. .
Cassiano, 430, 433, 436.
Chadwick, 368, 382, 480, 4l)o.
Chambers, 743, 744.
Chares, 264, 288.
Cheong Poon Ark, 644.
Chew Sing Wing, 122, 133,
913.
Chun Heong, 441, 442, 599,
636, 683, 688, 914.
Clark, 910, 911.
Clarke, 694.
Clement, 912.
Cleveland, 908.
Cline, 747.
Cochran, 210.
Cohn, 644, 763.
Colerlck, 238.
Collins, 311, 319.
Connelly, 311, 312.
Connor, 642.
Costello, 482, 485.
Cotta, 77, 389, 392.
Cowgill, 99, 107, 508, 646.
Cox, 264, 265, 274.
Crawford, 163.
Cronin, 498, 515, 517, 575,
666, 668, 701, 710.
Croswell, 31, 36, 42.
Cummins, 232.
Curlee, 493.
Curtis, 264.
Daniels, 13, 701.
Davis, 389, 391, 392, 708.
De Fore, 732.
Do La Cour Soto, 581.
Demasters, 330, 332.
Demlnt, 264.
Devine, 208.
Dewey, 662.
Dick, 84, 131, 141, 704, 708,
851.
Dlmick, 907.
TABLE OF CASES.
987
[ebfeebnoes akb to pages.]
ople V. Dodge, 379, 386.
People V. Hayes, 615.
V. Dolan, 389, 392, 397.
V. Hecker, 683.
V. Donahue, 851.
v. Henderson, 405.
V. Donguli, 671.
V. Herrick, 515, 517.
V. Douglas, 356.
V. Hersey, 261, 262, 264, 274
V. Douglass, 730.
283.
V. Doyell, 131, 139, 916.
V. Higgins, 169.
V. Dyle, 608.
V. Hite, 785, 786.
V. Ebanks, 681.
V. Hobson, 81, 82, 377.
V. Elliott, 169, 586, 591, 595,
V. Holmes, 338, 340, 346, 815.
686.
V. Hong Tong, 195:
V. Emerson, 877, 905.
V. Howard, 903.
V. Etting, 910, 916.
V. Hubbard, 11.
V. Fagan, 752.
V. Hull, 153.
V. Fanning, 130.
V. Hunt, 914.
V. Fanshawe, 130, 918.
V. Hurley, 377.
v. Ferris, 261, 283, 862.
V. Hurtado, 910.
V. Ferry, 500.
V. Ivey, 5, 43.
V. Fice, 297.
V. Jacks, 359.
V. Findley, 151, 194, 371.
V. Jackson, 277.
V. Finley, 342, 345, 663, 903.
V. January, 831.
V. Finnegan, 5.
T. Jones, 438, 499, 578.
V. Fitzgerald, 614.
V. Kearney, 264.
V. Flannelly, 118, 119, 690.
V. Keefer, 331.
V. Flynn, 110, 318, 613, 614,
V. Keeley, 740, 831.
649, 689, 795, 796.
V. Kelly, 151, 194, 379, 621, 622,
V. Foley, 540.
692, 887.
V. Fong Ah Sing, 627.
V. Kennedy, 902.
V. Forsythe, 757.
V. Kernaghan, 688.
V. Priedland, 582, 583.
V. Kerrick, 579, 667.
V. Galvin, 405.
V. Kindleberger, 122, 123.
V. Garbutt, 329, 332, 333, 754,
V. King, 114, 377, 851.
822.
V. Kirsch, 13.
T. Gastro, 726.
V. Knapp, 510, 515, 517.
V. Giancoli, 755, 758.
T. Lachanais, 649.
V. Gibson, 178.
V. La Munion, 431.
V. Gilbert, 850, 851.
V. Lange, 786.
V. Gosch, 199.
V. Langton, 737.
V. Gralleranz.o, 792.
V. Lattimore, 621-623.
V. Granely, 732, 733.
V. Leary, 261, 262, 264, 265,
V. Gray, 311, 649, 779.
276, 283.
V. Grimes, 99, 364.
V. Lee, 90.
V. Guidici, 650.
V. Lee Chuck, 76, 905.
V. Hall, 389.
V. Lee Gam, 623.
V. Hammill, 588.
V. Lee Sare Bo, 86, 115, 688.
V. Hampton, 382.
V. Lem Deo, 184, 698, 876.
V. Hancock, 583, 584, 593.
V. Lenon, 646, 653.
V. Hare, 380, 639.
V. Leonardi, 802.
V. Harlan, 337, 562.
V. Levine, 912.
V. Harper, 734.
V. Levison, 174, 176, 744.
V. Harrison, 591.
V. Lewis, 283.
V. Hart, 803, 823.
V. Linzey, 427.
V. Hartman, 183, 195.
V. Ludwig, 862.
V. Haun, 297, 319.
V. Lyons, 92, 122, 123.
V. Hawes, 198, 239.
V. McCallam, 875, 876.
988
TABLE OP CASES.
[EEFEBBNCES ABE TO PAGES.]
People V. McCord, 13.
People V. Pallister, 802.
V. McGonegal, 137.
V. Palmer, 445.
T. McKinney, 299, 853.
V. Parish, 465.
V. McLaughlin, 296, 311.
V. Payne, 264.
V. McNabb, 406.
V. Pearsall, 635, 637.
V. McNamara, 155.
V. Pedro, 592.
V. MoNutt, 297.'
V. Perry, 415.
V. McQuade, 373.
V. Petmecky, 499, 501.
V. Macard, 325, 732.
V. Pettit, 831, 833.
V. Machado, 682.
v. Phillips, 81, 83.
V. Madden, 598.
V. Phipps, 579, 666, 667, 712.
V. Malaspina, 638.
V. Pope, 240.
V. Martle, 885.
V. Potter, 732.
V. March, 210.
V. Prospero, 264.
V. Marks, 227, 297, 318, 594,
V. Putman, 549.
879.
V. Quin, 96.
V. Marshall, 913, 915.
V. Raher, 799.
V. Max, 264.
V. Ramirez, 152, 364,
377,
756,
V. Maxwell, 159.
918.
V. Mayers, 415.
V. Raten, 902.
V. Mayes, 430-432.
V. Reynolds, 859.
Y. Mead, 581, 589.
V. Ribolsi, 667.
V. Messersmith, 83.
V. Ricketts, 914.
V. Methever, 389, 396, 397.
V. Righetti, 563.
V. Mllgate, 672.
V. Riley, 580, 889.
V. Minnaugh, 406.
V. Roberts, 198, 200.
V. Mitchell, 588, 589.
V. Rodley, 364, 375,
525,
646,
V. Moett, 305.
678, 793.
V. Montague, 10.
V. Rodundo, 500, 751.
V. Morine, 910.
V. Rogers, 831.
V. Morrow, 498, 517, 722.
V. Rose, 614.
V. Mortier, 283.
V. Ryan, 436, 437.
V. Mortimer, 43.
V. Samsels, 355, 588.
V. Morton, 616.
V. Sanchez, 200.
V. Mulkey, 193.
V. Sanders, 238.
V. Murhack, 438.
V. Sanford, 262, 264,
283,
2S4,
V. Murray, 241, 292, 319, 377,
288.
732.
V. Sansome, 493.
V. Nelson, 580, 624, 625.
V. Saunders, 378.
V. Neufeld, 709, 722.
V. Schmitt, 371.
V. Neumann, 13.
V. Schooley, 820.
V. Niles, 406, 847, 853.
V. Scott, 696, 879, 887.
Vi Noonan, 807.
V. Seaman, 532.
V. Noregea, 743.
V. Sears, 329, 332.
V. Northey, 808.
V. Sensabaugh, 910.
V. O'Brien, 99, 103, 486, 718,
V. Shanley, 913.
724.
V. Shears, 198, 357, 364.
V. O'Connell, 369.
V. Sheldon, 649.
V. Odell, 415.
V. Simpson, 242, 243.
V. Oldham, 560.
V. Smith, 151, 590,
684,
691,
V. Olsen, 304, 319, 382, 797, 800.
733, 755, 851, 864
867.
879.
V. O'Neil, 240, 498, 515, 560,
v. Sprague, 560.
628.
V. Spriggs, 596.
V. Ostrander, 733.
V. Stanton, 444.
V. Padlllia, 659, 667, 851.
V. Sternberg, 78, 485,
525,
891.
TABLE OF CASES.
989
[references are to pages.]
People V. Stewart, 383, 385, 711, 712.
V. Stone, 629.
V. Strong, 76, 377, 556, 560, 563,
707, 851.
V. Strybe, 485.
V. Stubenvoll, 647, 648, 650.
V. Sweeney, 588.
V. Tamkln, 910.
V. Tapia, 183, 187, 342.
V. Tarm Poi, 636.
V. Taylor, 343, 358, 362.
V. Thiede, 341, 811.
V. Thomson, 916.
V. Titherington, 747.
V. Torres, 851.
V. Trim, 264, 288, 430, 433, 851.
V. Turcott, 914.
V. Upton, 811.
V. Urquidas, 722.
V. Valencia, 170.
V. Vanderhoof, 542.
V. Van Dusen, 29.
V. Van Zile, 890.
V. Velarde, 593.
V. Vereneseneckockocklioff, 99.
V. Von, 848, 851.
V. Walden, 726.
V. Waldvogel, 43.
V. Wallace, 899, 914.
V. Waller, 649.
V. Walters, 752.
V. Warren, 912, 913.
V. Watson, 615.
V. Wayman, 406.
V. Weaver, 380.
V. Webster, 87, 534.
T. Welch, 114, 444, 858, 910.
V. Wessel, 502.
V. Wheeler, 517, 575.
V. Williams, 64, 78, 299, 329,
330, 364, 377, 381, 385, 388,
389, 683, 907.
V. Willett, 713, 738.
V. Winters, 663.
V. WohHrom, 653.
V. Wong Ah Poo, 119, 623.
V. Wong Ah Ngow, 915.
V. Woppner, 264, 281.
V. Worden, 630.
V. Wynn, 693.
V. Ybarra, 142.
7-. Young, 761.
People's Building, Loan & Sav.
Ass'n V. Elliott, 185.
People's Fire Ins. Co. v. Pulver, 386.
Pfaffenback v. Lake Shore & M. S.
Ry. Co., 467.'
Pfeffele v. Second Ave. R. Co., 333,
337, 359.
Pfeuffer v. Maltby, 840.
V. Wilderman, 339.
Pflrshing v. Heitner, 172.
Pharo Y. Johnson, 217.
Pharr v. State, 101, 522.
Phelps V. City of Salisbury, 207.
V. Mayer, 830.
V. State, 418.
Phenix Ins. Co. v. La Points; 227,
512.
V. Woland, 344.
Phifer v. Alexander, 292, 294, 326,
391.
Philadelphia, W. & B. R. Co. v. Al-
vord, 208.
V. Harper, 380, 872.
v. Howard, 66.
Philadelphia & R. R. Co. v. Getz,
SOL
V. Trainor, 316.
Philadelphia & T. R. Co. v. Hagan,
96.
Philbrook v.' Burgess, 891.
Philibert v. Burch, 23, 24.
Phillips V. Abbott, 805, 809.
V. Beene, 124, 383.
V. Cornell, 184.
V. New York Cent. & H. R. R.
Co., 415, 420.
V. Ocmulgee Mills, 905.
V. People, 5, 6.
V. Roberts, 241.
V. Starr, 394, 395.
V. State, 763, 805, 810.
V. Thorne, 331, 332.
V. Williams, 99, 108.
Phillips' Case, 329, 334.
Philpot V. Lucas, 409.
Phinney v. Bronson, 299, 322.
Phipps V. Pierce, 812.
Phoenix Ins. Co. v. Gray, 530.
V. Moog, 777.
V. Neal, 115.
V. Sholes, 228.
V. Underwood, 860.
Phoenix Life Ins. Co. v. Raddin,
825, 838, 844.
Pickard v. Bailey, 26.
V. Bryant, 299.
Pickerell v. Carson, 14.
Picket v. Morris, 360,
990
TABLE OF CASES.
[eefebencks are to pages.]
Pickett V. Fid'slity & Casualty Co.,
81.
V. Wallace, 330. •
Pico V. Stevens, 112.
Pier V. Prouty, 450.
Pierce v. Alspaugh, 300, 327.
V. Cloud, 912.
V. Com., 430.
V. Hasbrouck, 881.
T. Locke,^ 832, 835.
V. Millay, 870.
V. Rehfuss, 455.
V. State, 32, 33, 39-41, 43, 564,
568.
Pierpont Mfg. Co. v. Goodman
Produce Co., 773.
Pierson v. Baird, 266.
v. Duncan, 305.
V. State, 841.
Pigott V. Lilly, 201.
Pike V. Warren, 901.
Pilger V. Com., 639.
Pilkinton v. State, 644.
Pillsbury v. Sweet, 119.
Pinkerton v. Ledoux, 89.
Pinson v. State, 821.
Pioneer Cooperage Co. v. Romano-
■wicz, 198.
Pioneer Pireproof Construction Co.
V. Howell, 364.
V. Sunderland, 274.
Piper V. New York Cent. & H. R. R.
Co., 813.
Pireaux v. Simon, 898.
Pistole V. Street, 6.
Pitkins V. Johnson, 302.
Pitman v. Molsberry, 821.
Pitner t. State, 494.
Pitt V. Elser, 228.
Pitts V. State, 319.
V. Whitman, 382.
Pittsburgh, C. & St. L. Ry. Co. v.
Krouse, 912.
V. Noll, 850, 915. '
V. Sponier, 130, 881.
Pittsburgh, C, C. & St. L. R. Co.
V. Dahlin, 238, 241.
V. Noftsger, 167, 876, 914.
V. Welch, 881, 882.
Pittsburgh, Ft. W. & C. Ry. Co. v.
Callaghan, 726, 728.
V. Probst, 820.
V. Slusser, 210.
Pjarrou v. State, 879.
Plank V. Jackson, 834.
Planters' Bank v. Bank of Alex-
andria, 7, 891.
V. Richardson, 231.
Planters' Bank of Prince George's
Co. V. Bank of Alexandria, 222,
825.
Piatt V. Chicago, B. &Q. Ry. Co.,
27.
V. Chicago, St. P., M. & 0. Ry
Co., 11.
V. brake, 19.
Platz V. McKean Tp., 506.
Plaut V. Young, 298.
Pleak V. Chambers, 390, 392.
Pleasant v. State, 3, 43, 279.
Pleasants v. Fant, 9.
V. Scott, 205.
Pless V. State, 370.
Plumb V. Curtis, 227.
Plummer v. City of Milan, 196.
V. State, 554, 556, 568, 915, 917.
Plunkett V. Appleton, 425-427.
Poage V. Bell, 18.
Poe V. State, 65.
Pogue V. Joyner, 849, 855, 857, 885.
Poland V. Miller, 879, 896:
Polanka v. State, 696.
Polin V. State, 654.
Pollard V. State, 624, 631, 746.
V. Teel, 197.
Pollock V. Brooklyn & C. T. R. Co.,
917.
Polly V. Com., 242.
V. McCall, 383, 387.
Poison V. Ingram, 101.
Pond V. Wyman, 170.
Pool V. Gramling, 852, 863.
V. White, 90.
Poorman v. Smith's Ex'rs, 301.
Pope V. Kansas City Cable Ry. Co.,
81.
V. Lowitz, 248.
V. Machias Water Power &
Mill Co., 798.
V. Pope, 884.
V. Riggs, 233.
Poppell V. State, 578.
Porath V. State, 303, 487.
Portage Co. Branch Bank V. Lane,
883.
Porter v. Brown, 912.
V. Ferguson, 188.
V. Knight, 216.
V. Metcalf, 895, 901.
V. Nash. 879.
TABLE OF CASES.
991
[BEFEEENCES AKE TO PAGES.]
Porter v. Sellei-, 89.
V. State, 134, 296, 320, 830.
V. "Waltz, 902.
V. White, 184, 187.
Porterfield v. Com., 886.
Posey V. Patton, 332, 333, 413.
Post V. Bird, 821.
V. Supervisors, 25.
Postal Telegraph Cable Co. v. Doug-
lass, 918.
Poston V. Smith's Ex'r, 829.
V. State, 696.
Potter V. Chicago, R. I. & P. R. Co.,
224, 865.
V. State, 154, 319, 324.
V. Wooster, 838.
Potts V. House, 505, 865.
V. Jones, 64.
V. Wright, 7.
Poullain v. Poullain, 295, 297.
Pound V. Port Huron & S. W. Ry.
Co., 380, 824.
Pourcelly v. Lewis, 239.
Powell V. Chittiek, 538.
V. F. C. Linde Co., 366.
V. Finch, 15.
V. Haley, 295.
V. Jones, 845.
V. Messer's Adm'r, 246, 368,
369.
V. Missouri Pac. Ry. Co., 10.
V. Pierce, 857.
V. State, 489, 490, 493, 647, 892,
893.
V. Terry's Adm'r, 839.
T. Wilmington & W. R. Co.,
332, 333.
Power V. Harlow, 406, 407.
V. Larabee, 287.
Powers V. Allen, 829.
V. Com., 173, 460, 490.
V. Hazelton & L. Ry. Co., 280,
283, 820, 825.
V. McFerran, 352.
V. State, 48, 53, 286, 298, 585,
857.
Prater v. Snead, 287.
Prather v. Naylor's Adm'r, 150.
V. Wilkens, 775.
Pratt V. Foote, 817.
V. State, 505.
Pray v. Cadwell, 858, 907.
Preisker v. People, 161,
Prendergast v. State, 496.
Prescott v. Johnson, 896.
Prescott V. Patterson, 822.
Pressley v. State, 78.
Preston v. Bowers, 432.
V. Dunham, 339.
V. Harvey, 867, 880.
V. Leighton, 339.
V. Moline Wagon Co., 570.
V. State, 160.
V. Walker, 839.
Price V. Buchanan, 805.
V. Burlington, C. R. & N. R.
Co. 812
V. Coblitz, 876, 912.
V. Hannibal & St. J. R. Co.,
162.
V. Johnson County, 887.
V. Mazange, 14.
V. Pankhurst, 816, 820.
V. State, 340.
Prichard v. Hopkins, 359.
Prichett v. Cook, 869.
Pridham v. Weddington, 909.
Priesmuth v. State, 645.
Primm v. Haren, 21.
Prindeville v. People, 331, 841.
Prince v. Ocean Ins. Co., 253.
V. State, 638.
Prine v. State, 239, 241.
Prinzel v. State, 437.
Pritchard v. Myers, 894.
Pritohett v. Munroe, 228.
V. Overman, 115.
V. State, 415, 420.
Probert v. Anderson, 219.
Probst V. Trustees of Board of Do-
mestic Missions, .819.
Procter v. Loomis, 216, 769.
Proctor V. Hart, 200, 210, 857.
v. Spratley, 892.
V. State, 779.
Produce Exch. Trust Co. v. Bieber-
bach, 197.
V. Worcester Brewing Co., 197.
Prosser v. Henderson, 419, 420, 424.
Protection Life Ins. Co. v. Dill, 241,
773.
Prothero v. Citizens' St. Ry. Co.,
226.
Providence Gold Min. Co. v. Thomp-
son, 228, 232.
Provident Hospital & Training
School V. Barbour, 298.
Provident Sav. Life Assur. Soc. v.
Hadley, 913.
Provines v. Heaston, 266, 279.
992
TABLE OP CASES.
[EEFERKNCES AEE TO PAGES.]
Provo T. State, 623.
Prowattain v. Tindall, 507.
Pruitt V. Cox, 230.
Pryor v. Coggin, 292.
V. Metropolitan Street Ry. Co.,
183, 360.
V. Portsmouth Cattle Co., 64.
Puett V. Beard, 849.
Puget Sound Iron Co. v. Worthing-
ton, 465.
.Pugh V. McCarty, 359, 388.
PuUiam v. Newberry's Adm'r, 304.
Pullman Palace Car Co. v. Smith,
889, 890.
Pumphrey v. Walker, 162.
Purcell V. English, 11.
Puroelly v. State, 802.
Purdy V. People, 576.
iPurnell v. Gandy, 360.
Purrington v. Pierce, 299.
Purvis V. State, 698, 699.
Puth V. Zimbleman, 784.
Pyle V. Pyle, 155.
Pynchon v. Day, 10.
Q.
Qualy Y. Johnson, 191.
Quertermouns v. Hatfield, 821.
Quinby v. Carhart, 800.
Quinn v. Com., 197.
V. Donovan, 162, 168, 915, 916.
V. Higgins, 541.
V. People, 440.
V. State, 425, 426.
Quintana v. State, 619, 620, 818.
Quirk V. St. Louis United Elevator
Co., 308, 916.
R.
Rabbermann v. Callaway, 195.
Rackley v. Powlkes, 314.
Raflerty v. People, 434, 435, 493.
Ragan v. Gaither, 6.
Ragland v. State, 154, 441, 444.
Ragsdale v. Southern R. Co., 340.
Railroad Co. v. Hambleton, 159.
Railway Co. v. Heck, 830.
V. Kell, 303.
Railway Passenger Assur. Co. v.
Burwell, 76.
Rains v. State, 698.
Ramage v. Peterman, 11.
Ramey v. State, 370.
Ramsey v. National Contracting
Co., 162, 164.
Rand v. Jones, 879.
V. C. R. Jones & Sons, 906.
Randall v. Baltimore & 0. R. Co.,
. 10.
V. Chase, 380.
V. Parramore, 894.
V. State, 510.
Randolph v. Alsey, 829.
V. Carlton, 879.
V. Govan, 15, 415, 417.
V. Lampkin, 457.
Rankin v. Thomas, 469.
V. West, 299.
Ranney v. Barlow, 226.
Ransbottom v. State, 332.
Raoul V. Newman, 110.
Raper v. Blair, 208.
Rapp V. Kester, 183.
Rara Avis Gold & Silver Min. Co. ▼.
Bouscher, 208.
Ratclife V. Baird, 338.
Ratigan v. State, 199.
Ratto v. Bluestein, 370.
Rauck v. State, 298, 903, 906.
Raush V. Miller, 301.
Rawlins v. Tucker, 828.
Rawson v. Ellsworth, 880.
V. Plaisted, 798.
Ray v. Lipscomb, 799, 892.
V. Moore, 365.
V. State, 323, 389, 441, 488, 551,
651, 653, 668, 90L
V. Wooters, 262, 266, 279, 280.
Rayburn v. State, 479, 632, 634, 715,
718.
Raymond v. Ross, 26.
Raysdon v. Trumbo, 182.
Rea V. Bishop, 807.
V. State, 700, 702.
Read v. City of Cambridge, 425,
427.
V. Nichols, 824.
Readdy v. Borough of Shamokin,
308.
Reading v. Metcalf, 308, 359.
Reardon v. Missouri Pac. Ry. Co.,
172, 870.
Reber v. Herring, 239, 241, 242.
Receivers of Missouri, K. & T. Ry.
Co. v. Pfluger, 303.
Rector v. Canfleld, 807.
Redden v. TefEt, 879.
Reddon v. Union Pac. Ry. Co., 382,
TABLE OF CASES.
993
[HEFEBENCES ABE TO PAGES.]
Bedford v. Spokane St. Ry, Co., 453.
Redman v. Gulnac, 430, 434.
V. Malvin, 821.
V. Roberts, 78.
V. Voss, 813.
Redmond v. Stepp, 366.
Redus V. Burnett, 221, 351, 836.
V. State, 462.
Reed V. Call, 295, 299, 830.
V. Clark, 125.
V. Com., 185, 210.
V. Golden, S'go, 392.
V. Gould, 222, 223.
V. Hardeman, 302.
V. Hubbard, 833.
V. McGrew, 210, 888.
V. Newcomb, '382, 392.
V. Reed, 239, 240.
V. Shenck, 101, 114.
V. State, 364, 752.
Reader v. Dupuy, 10.
V. Purdy, 208.
Reeds v. Lee, 254.
Reel V. Elder, 6.
Reem v. St. Paul City Ry. Co., 155,
157.
Reese v. Beck, 241.
Reeves v. Delaware, L. & W. R. Co.,
301.
V. Graffllng, 690.
V. Harrington, 821.
V. Poindexter, 569.
V. State, 644, 729, 785.
Reg. V. Farler, 486.
V. Riendeau, 644.
V. Sterne, 658.
V. Stubbs, 482, 483, 486, 487.
Regester v. Medcalf, 853, 859.
Relebenbach v. Ruddach, 239, 534.
Relchstetter v. Bostick, 303.
Reld V. Mason, 217.
V. Reid, 268.
V. State, 151, 159.
Reiaie V. Mulhausen, 3C2.
Reidman v. Gulnac, 433.
Reilly v. Bader, 428.
V. Hannibal & St. J. R. Co., 871,
907.
Relnback v. Crabtree, 204, '39'2, 393.
Reinhold v. State, 918.
Reissner v. Oxley, 305.
Relf V. Rapp, 232.
Remmler v. Shenult, 21S, 299.
Remsen v. People, 581-583, 588.
Remey v. Olds, 231, 235.
6S— Ins. to Juries .
Renaud v. City of Bay City, 134.
Rencher v. Wynne, 381. 386.
Renner v. Thornburg, 151, 178, 460,
462.
Rensbaw v. Fireman's Ins. Co., 181.
V. Switzer, 841.
Renton v. Monnier, 363.
Repsher v. Wattson, 98.
Republican Val. R. Co. v. Arnold,
288.
V. Fellers, 300.
V. Fink, 233, 300.
Requa v. Holmes, 814.
Rex V. Atwood, 482.
V. Burdett, 95.
V. Clerk, 36.
V. Dean of St. Asaph, 32-34, 36,
37.
V. Durham, 482.
V. Jones, 486.
V. Nutt, 36.
V. Oneby, 36.
V. Poole, 36.
V. Wilkes, 36, 482, 483, 486.
V. Woodfall, 36.
Reynolds v. Boston & M. R. Co.,
822.
V. Greenbaum, 560.
V. Magness' Bx'rs, 892.
V. Richards, 21.
V. State, 320, 722, 828.
V. Weinman, 84, 727.
V. Williams, 7, 12, 13.
Rheiner v. Stillwater St. Railway
& Transfer Co., 819, 825.
Rhodes V. Chesson, 29.
V. Lowry, 87.
V. State, 906.
V. United States, 569, E72, 574.
Rhyner v. City of Menasha, 452,
913.
Rlcards v. Wedemeyer, 66.
Rice V. Brown, 879.
V. City of Des Moines, 852,
856, 910.
V. Com., 916.
V. Crow, 14, 15.
V. Goodridge, 285.
V. Olin, 159, 912, 915.
V. Rice, 895.
T. Schloss, 814.
T. State, 379.
V. Wallace, 891.
V. Whitmore, 297.
994
TABLE OP CASES.
[BEFEEENOBS ABE TO PAGES.]
Rlee & Bullen Malting Co. v. In-
ternational Bank, 100.
Klch V. Lappln, 261, 266, 282.
T. Rich, 10, 12.
Richard v. State, 198, 341, 369, 876.
Richards v. Fanning, 849, 860.
V. Fuller, 726.
T. Munro, 132.
Richardson v. City of Eureka, 846,
847, 851, 898.
V. Coddington, 85.
V. Coleman, 458, 459, 834.
V. Halstead, 916.
V. Jankofsky, 303.
T. State, 384, 645, 832, 878.
V. Stewart, 6.
T. Van Voorhis, 804
Richardson & Boynton Co. v. Win-
ter, 807.
Richelieu Hotel Co. v. Internation-
al Military Encampment Co., 391,
772.
Richie V. State, 441.
Rlchlands Iron Co. v. Elkins, 417.
Richmond v. Second Ave. R. Co.,
812.
V. Sundfeurg, 221.
Richmond R. Co. v. Howard, 371.
Richmond Railway & Electric Co.
V. Bowles, 190.
Richmond Trading & Mfg. Co. v.
Farquar, 19.
Richmond & D. R. Co. v. Burnett,
368.
V. Howard, 297.
V. Medley, 869.
V. Norment, 382, 880.
Richmond & M. R. Co. T. Humph-
reys, 828, 387.
Ricketts v. Harvey, 838, 902.
Ricks V. State, 699, 798.
Riddle v. Webh, 154, 156.
Ridenhour v. State, 57.
Ridens v. Ridens, 206.
Rider v. Maul, 212.
V. People, 497, 499, 510, 565.
V. State, 545.
RideuB V. State, 116, 597.
Ridge V. Sunman, 798.
Ridgway v. Longaker, 382.
Riegelman v. Todd, 908, 914.
Rieger v. Swan, 166.
Riggin V. Patapsco Ins. Co., 196.
Riley V. Martinelli, 449.
V. State, 658, 707.
Riley v. Watson, 5, G, 278.
v. West Virginia Cent. & P. Ry.
Co., 360.
Rinard v. Omaha, K. C. & E. Ry.
Co., 203.
Ringo V. State, 437, 438.
Rio Grande Western Ry. Co. v.
Leak, 227.
Ripley v. Colby, 199.
V. Second Ave. R. Co., 604.
Rising V. Nash, 232.
Rising-Sun & V. Turnpike Co. v.
Conway, 262, 278, 281.
Risk V. Ewing, 286.
Ritter v. Ewing, 739.
V. Sieger, 868.
Ritzenger v. Hart, 799, 807.
Ritzman v. People, 905.
Rivard v. Rivard, 531-533.
River, Ft. S. & G. R. Co. v. Owen,
859.
River View Land Co. v. Dance, 148.
Rives v. McLosky, 338, 383.
Riviere v. McCormick, 100.
Roach V. Hawkinson, 807.
Retards v. Wolfe, 208, 847.
Robb V. State, 743, 748.
Robbins v. Harrison, 159.
V. Roth, 879, 881.
V. Spencer, 14, 16.
V. State, 43-45.
Roberts v. Alexander, 6, 16, 18, 901.
y. Higgins, 828.
v. Johnson, 531.
V. Leon Loan & Abstract Co.,
835.
V. Lucas, 26.
V. McGrath, 360.
T. Morrison, 903.
V. Neal, 409.
V. Nodwift, 883.
V. Richardson, 190.
V. State, 340, 721.
V. Tobias, 803, 804.
Robertson v. Monroe, 565, 601.
V. Parks, 354.
V. State, 696.
Robeson v. Gibbons, 359.
Robins v. Fowler, 200, 297, 840.
Robinson v. Barnett, 198.
V. Dryden, 450.
V. Hyer, 894.
V. Imperial Silver Mln. Co., 878.
V. Louisville & N. R. Co., 13.
V. Mclver, 308. 314.
TABLE OF CASES.
995
[eefekences are to pages.]
Robinson v. New York & B. R. Co.,
823.
V. Pitzer, 830.
V. Shanks, 903.
V. Spears, 196.
V. State, 57, 206, 253, 292, 320,
379, 488, 645, 647.
V. Varnell, 302, 877, 909.
V. Walton, 9.
V. White, 868.
Robson V. New York Cent. & H. R.
R. Co., 804.
Roby V. Appanoose County, 856, 865.
Hock V. Indian Orchard Mills, 817.
Rock Island & E. I. Ry. Co. v. Gor-
don, 198.
Rockford Ins. Co. v. Nelson, 179.
Rockmore v. State, 918.
Rockwood V. Poundstone, 570.
Rodgers v. Johnson, 194.
V. State, 698.
Rodrigues v. State, 438.
Roe V. Bacheldor, 767, 777.
V. State, 786.
V. Taylor, 20, 178.
Roebke v. Andrews, 303, 311.
Rogers v. Brightman, 360, 383, 387.
V. Broadnax, 6, 7.
V. Carey, 18.
V. Colt, 14.
V. Com., 738.
V. Davidson, 908.
V. Hall, 885.
V. Johnson, 447.
V. Kennebec & P. R. Co., 299.
T. King, 473, 515, 518.
V. Lamb, 856.
V. Leyden, 338.
V. Maxwell, 896.
V. Millard, 253.
V. Rogers, 349, 819, 885.
V. State, 779, 782.
V. The Marshal, 824, 874, 915.
V. Wallace, 800, 859, 887.
Rohrbacher v. Ware, 17, 18.
Rolfe V. Rich, 338.
Roller V. Bachman, 334.
Rolling Mill Co. v. Corrigan, 301.
Rollings V. Cate, 255, 258.
Rollins V. O'Parrel, 375, 471.
V. State, 298.
Rolston V. Langdon, 159, 342, 885.
Romberg v. Hediger, 807.
Rome R. Co. v. Sullivan, 875.
Rommeney v. City of New York,
366, 770.
Ronan v. Meyer, 899.
Ronsheim v. Brimberry, 297, 307.
Roos v. Clark, 916.
V. Lewyn, 311.
Roots V. Beck, 906.
V. Tyner, 338.
Roper V. Stone, 64, 101.
Rose V. Bradley, 888.
V. Otis, 130, 543.
Rosenbaums v. Weeden, 339, 391.
Rosenthal, Meyer & Co. v. Middle-
brook, 339, 886.
Rosquist V. D. M. Gilmore Furni-
ture Co., 824.
Ross V. Citizens' Ins. Co., 8.
V. Cityof Daven"poftr879.
V. Com., 783.
V. Gill, 102.
V. McGowen, 847.
V. Ross, 159.
V. State, 102, 445, 684, 909.
Rost V. Missouri Pac. Ry. Co., 90*
909.
Rotan Grocery Co. v. Martin, 189,
194.
Roth V. Northern Pac. Lumbering
Co., 366.
V. Smith, 160, 369.
Rothschild v. Frensdorf, 188.
Roulo V. Valcour, 27.
Rountree v. Gurr, 411, 412.
V. State, 619, 620, 700.
Rouse V. Harry, 897.
V. Lewis, 199.
Rousel V. Stanger, 304.
Rowe V. Baber, 777.
Rowell V. Chase, 856.
V. Fuller, 90.
V. Fuller's Estate, 823.
Rowland v. Ladiga, 840.
V. Plummer, 562.
V. State, 623.
Rozar v. Burns, 297.
Rublee v. Belmont, 381.
Rucker v. Hamilton, 907.
V. Wheeler, 89, 97.
Rudd V. Davis, 10.
Rudy V. Com., 632
Ruff V. Jarrett, 773.
Ruffing V. Tilton, 840, 857.
Ruloff V. People, 611.
Rumph V. Hiott, 143, faOO.
996
TABLE OP CASES.
[eepeeences are to pages.]
Rumrill v. Adams, 199.
Rumsey v. New York & N. B. R.
Co., 854.
Runge V. Brown, 176.
Rupp V. Orr, 413.
V. Shaffer, 279.
Rush V. French, 255.
V. Ross, 297.
V. Spokane Falls & x-v. Ry. Co.,
814, 820.
Rushin v. Shields, 105.
Rushmore v. Hall, 77, 199.
Russ V. Steamboat War Eagle, 64.
Russel V. Amador, 386.
V. Rosenbaum, 822.
Russell V. Bradley, 806.
V. Dennison, 805.
V. Ely, 89.
V. Minteer, 76.
V. Nail, 312, 467, 470.
V. Phelps, 887, 903.
V. St. Paul, M. & M. Ry. Co.,
822.
V. State, 437.
Ruter V. Poy, 821.
Rutland Mfg. Co. v. Qulnlan, 95.
Rutledge v. Hudson, 297.
V. State, 900. '
Ryall V. Central Pac. R. Co., 812,
821.
Ryan v. Begein, 899, 900.
V. Brown, 227.
V. Donnelly, 870.
V. Los Angeles Ice & Cold Stor-
age Co., 116.
V. Madden, 296, 299, 822.
V. People, 583.
V. State Bank, 895.
Ryder v. State, 99, 104.
Ryman v. Crawford, 906.
S. B. Jones & Son v. Cherokee Iron
Co., 101.
Saar v. Fuller, 86, 87.
Sabln V. Fisher, 823.
Sabine & E. T. Ry. Co. v. Bwing,
341.
Sadler t. Peoples, 27.
V. Sadler, 379.
Safe-Deposit & Trust Co. v. Berry,
239, 240, 249.
Safety Fund Nat. Bank v. West-
lake, 167, 190.
Safford v. People, 43.
Sage V. Haines, 221.
Sage V. Evansville & T. H. R. Co.,
417, 421, 422.
Saginaw Union St. Ry. v. Michigan
Cent. R. Co., 897.
Sailer v. Barnousky, 360.
Sailor v. Hertzogg, 89, '95, 99.
Saint V. Guerrerio, 283, 297.
St. Clair v. Missouri Pac. R. Co.,
253.
St. John V. Bumpstead, 18, 19.
St. Joseph Mfg. Co. v. Harrington,
290.
St Joseph & D. C. R. Co. t. Chase,
390, 398.
V. Grover, 172.
V. Orr, 857.
St. Louis V. State, 515, 904, 909.
St. Louis, A. & T. H. R. Co. v.
Hawkins, 357.
V. Holman, 889.
V. Manly, 6.
St. Louis Coal R. Co. v. Moore, 151.
St. Louis Drug Co. v. Dart, 846.
St. Louis Gaslight Co. v. American
Fire Ins. Co., 20, 531.
St. Louis, I. M. & S. Ry. Co. v.
Baker, 910.
V. Beecher, 168.
V. Hecht, 842.
V. Phillips, 89, 534.
V. Spencer, 820.
V. Vickers, 94.
V. Vincent, 174.
St. Louis, K. C. & N. Ry. Co. t.
Cleary, 6, 184.
St. Louis, K. & N. "W. R. Co. v.
Knapp, Stout & Co. Com-
pany, 163.
V. St. Louis Union Stock-Yards
Co., 64.
St. Louis S. W. Ry. Co. v. Jager-
man, 916.
V. Smith, 64, 113, 258.
St. Louis & S. F. R. Co. T. Blinn,
189.
V. Burrows, 452.
T. McClain, 904, 909.
Salazar v. Taylor, 515, 517.
Salinas v. Wright, 840, 868, 867,
878.
Salm v. State, 729.
Salmon v. Olds, 877.
Salmons v. Roundti-ee, 785, 890.
Salomon v. Cress, 150, 199, 210, 825.
V. Hathaway, 838.
T. Rels, 415, 421.
TABLE OF CASES.
997
[eefeeences aeb to pages.]
Salomon v. State, 150.
, V. "Wetster, 172.
Salter v. Glenn, 600.
V. Myers, 7.
Saltmarsh v. Bower, 9.
Same v. Childs, 261.
Sammis v. Wrlghtman, 852, 857.
Sample v. Rand, 69, 184.
V. Randz, 65.
V. State, 276.
Samuels v. Burnham, 198.
San Antonio Gas Co. v. Robertson,
198.
San Antonio St. Ry. Co. v. Helm,
302.
San Antonio Traction Co. v. White,
913.
San Antonio & A. P. Ry. Co. v.
Belt, 73.
V. Choate, 456.
V. Corley, 904.
V. Use, 115.
V. Kniffen, 317.
V. McGee, 109.
V. Robinson, 170.
Sanborn v. Banfleld, 899.
V. Cole, 897.
v. School Dist. No. 10, 328-330.
Sandage v. State, 502.
Sanders v. Illinois Cent. R. Co.,
543, 555, 565.
V. O'Callaghan, 365.
V. People, 735.
V. State, 292, 317, 319, 323, 439,
753.
V. Weelburg, 906.
Sandford Tool & Fork Co. v. Mul-
len, 857.
Sandwich Mfg. Co. v. Shiley, 292,
293
Sanford v. Gates, 473, 812, 817.
V. Miller, 226.
Sanger v. Craddoek, 302.
Sanitary Dist. of Chicago v. City
of Joliet, 389.
Sapp v. Paircloth, 297.
Sappenfield v. Main Street & A. B.
R. Co., 168, 915.
Sargeant v. Martin, 917.
Sargent v. Linden Min. Co., 183.
V. Roberts, 425, 426, 428.
V. State, 273.
Sartor v. Sartor, 20.
Sartorius v. State, 746.
Sartwell v. Wilcox, 197.
Satchell v. Doran, 885.
Sater y. State, 621, 622.
Saunders v. Flaniken, 901.
V. Payne, 886.
V. Whitcomb, 207, 918.
Savannah, F. & W. Ry. Co. v. Tied©-
man, 193, 195.
Savannah, T. & I. of H. Ry. v.
Beasley, 350.
Savery v. Moore, 227, 338.
Saville v. Marsach, 364.
Sawyer v. Lorillard, 383, 387, 391,
881.
v. Phaley, 90, 95-97.
V. Sauer, 3.
V. State, 906.
Sawyer, Wallace & Co. v. Macaulay,
848.
Sawyers v. State, 637.
Sayer v. Schroeder, 301.
Schaefer v. Metropolitan St. Ry
Co., 359.
V. Osterbrink, 303.
v. St. Louis & S. Ry. Co., 899.
Schafer v. Gilmer, 184.
Schaff v. Miles, 807.
Schanck v. Morris, 99.
Schaungut's Adm'r v. Udell, 210
Schell V. State, 296.
Schenk v. Dunkelow, 251.
Scherrer v. Hale, 831.
Scheuing v. Yard, 262, 268.
Schieffelin v. Schieffelin, 343, 913.
915.
Scnier v. Dankwardt, 183.
Schillinger v. Kratt, 227, 230.
Schisler v. Null, 888.
Schissler v. Cheshire, 184.
Schlencker v. State, 802.
Schlicker v. Gordon, 784.
Schmidt v. Balling, 189.
v. Chicago & N. W. Ry. Co.
841, 848.
v. First Nat. Bank of Denver,
349, 401.
V. Pfau, 174.
V. Rose, 199.
V. St. Louis R. Co., 69, 85.
V. Sinnott, 255.
Schmieg v. Wold, 915.
Schmit V. First Nat. Bank of Den-
ver, 350.
Schmitt V. Missouri Pac. Ry. Co.,
166.
Schmitt & Bro. v. Mahoney, 913.
998
TABLE OP CASES.
[eefeeences aee to pages.]
Schneider v. Hosier, 256, 884.
Schnier v. People, 47, 53.
Schoellliamer v. Rometsch, 301, 304.
Schoenberg v. Voight, 76, 199.
Scliofield V. Ferrers, 740.
Scholtz V. North-western Mut. Life
Ins. Co., 186.
Schondorf v. Griffith, 877.
School Dist. of Chadron v. Foster,
167, 169, 170.
School Dist. No. 1 in Milton v.
Bragdon, 426, 432.
Schoolfield v. Houle, 350.
Schoolin v. Com., 89.
Schools V. Risley, 387.
Schoonmaker v. Doolittle, 11.
Schoonover v. Irwin, 855.
Schrader v. Hoover, 183, 187.
Schreckengast v. Ealy, 799.
Schrimpton v. Bertolet, 11.
Schroeder v. Michel, 910, 911.
V. Rinehard, 807, 829.
Schryver v. Hawkes, 296, 305.
Schuchardt v. Aliens, 12.
Schuek V. Hagar, 556, 560.
Schuhle V. Cunningham, 328, 330,
333.
Schultz V. Bower, 369, 474.
V. State, 382, 749.
Schulz V. Schulz, 86, 482, 486.
Schunior v. Russell, 240.
Schurmeier v. Johnson, 825.
Schuylkill & D. Imp. Co. v. Mun-
Bon, 9, 10, 12, 160, 304.
Schwartz v. Germania Life Ins. Co.,
64.
Scofield V. Brown, 807.
Scott V. Chicago G. W. Ry. Co., 183,
276.
V. Green, 416.
V. Haynes, 415, 421.
V. Lloyd, 238, 246.
V. People, 240.
V. Sheakly, 191.
V. State, 380, 390, 696, 711.
V. Texas & P. Ry. Co., 361.
V. Third Aye. R. Co., 360.
V. Wood, 297.
Scott's Lessee v. Ratliffe, 338.
Scovlll V. Glasner, 908.
Scoville V. Salt Lake City, 382, 813.
Scripps V. Reilly, 471.
Scully V. State, 297.
Seaboard Mfg. Co. v. Woodson, 72.
Seabury v. Field, 295.
Seacord v. People, 681.
Seagrave v. Hall, 431.
Seal V. State, 854, 863.
Sears v. Loy, 170.
Seattle & M. Ry.Co.v. Gilchrist, 808.
Seaward t. Malotte, 18.
Seay v. Diller, 890.
Seckel v. Scott, 202.
Secor V. Oregon Imp. Co., 898.
Sedgwick v. Phillips, 805.
geekel v. Norman, 212, 214, 798, 895.
Seeley v. Bisgrove, 428.
V. State, 106.
Segrest v. State, 521.
Seiber v. Price, 227.
Seigle V. Louderbaugh, 301, 327.
Seller v. State, 644.
Seligmap v. Rogers, 556.
V. Ten Eyck's Estate, 85.
Selin V. Snyder, .170, 352.
Sellars v. Johnson, 15, 17.
Sellers v. City of Greencastle, 284.
V. Hancock, 815.
V. Sellers, 817, 823.
V. State, 889.
V. Stevenson, 170.
Selma, M. & M. R. Co. v. Anderson,
26.
Semple v. Crouch, 75.
Senter v. Carr, 560, 567.
Serfass v. Dreisbach, 301.
Sergeant v. Martin, 461.
Sefio V. State, 441.
Serviss v. Stockstill, 817.
Sessengut v. Posey, 864, 866.
Setchel v. Keigwin, 89.
Sewall V. Henry, 21.
Sexson v. Hoover, 850.
Sexton V. School Dist. No. 34, Spo-
kane Co., 239, 812.
v. State, 320, 326. .
Seymour v. Bailey, 690.
V. Colburn, 270, 277.
V. Cowing, 307.
V. Detroit Copper & Brass Roll-
ing Mills, 888.
V. Seymour, 162.
Shackelton v. Lawrence, 188.
Shadwick v. McDonald, 878.
Shaeffer v. Landis, 359.
Shafer v. Stinson, 262, 263, 282.
Shambaugh v. Current, 365.
Shank v. State, 96.
Shannon v. Hannibal & St. J. Ry.
Co., 806.
TABLE OP CASES.
999
[BEFEBENOES ABE 10 FACES.]
Shannon v. Town of Tama City,
369.
Shapleigh v. White, 432.
Shapley v. "White, 426.
Sharer t. Dobbins, 877, 904.
Sharkey v. State, 303.
Sharon v. Minnock, 878.
Sharp V. Burns, 304.
V. Hoteman, 805.
V. Kinsman, 917.
V. Parks, 78.
V. Robertson's Ex'rs, 819.
Shartle v. City of Minneapolis, 329,
333, 346.
Shatto V. Abernethy, 799.
Shaughnessey v. Sewall & Day Cord-
age Co., 196.
Shaul V. Brown, 740.
Shaver v. Stinson, 266.
Shaw V. Camp, 415, 417, 420, 881.
V. Gilbert, 368.
V. Missouri & Kansas Dairy
Co., 910.
V. New York & N. E. R. Co.,
800.
V. State, 668, 809, 856.
v. Village of Sun Prairie, 231.
V. Wallace, 5, 6.
Shea V. Potrero & B. V. R. Co., 812,
819.
Sheahan v. Barry, 6, 92, 726.
Shealy v. Edwards, 108.
Shedd V. Dalzell, 831.
Sheehan v. Dalrymple, 879, 888.
V. People, 624, 628.
Sheehy v. Flaherty, 209.
Sheeks v. Fillion, 857.
Shehan v. Barry, 762.
Shelby v. Offutt, 391, 393.
Sheldon v. Dodge, 19.
Shelfer v. Gooding, 300.
Shellabarger v. Nafus, 560, 561.
T. Thayer, 532.
Shelly V. State, 482.
Shelock V. First Nat. Bank of
Bloomington, 821.
Shenkenberger v. State, 151.
Shepard v. Pratt, 843.
Shephard v. Brenton, 821, 857.
Shepherd v. Jones, 851.
V. JiIcQuilkIn, 857.
V. Nabors, 879.
V. State, 827, 830.
Sheppard v. Peabody Ins. Co., 885.
Shepperd v. State, 746.
Sherer v. Rischert, 147.
Sherfey v. Bvansville & T. H. R.
Co., 389, 392.
Sherlock v. First Nat. Bank of
Bloomington, 819.
V. German-American Ins. Co.,
381, 605.
Sherman v. Dutch, 65, 174.
V. Kreul, 228.
V. State, 838.
V. Wakeman, 381.
Sherman, S. & S. Ry. Co. v. Bell,
122, 197, 367, 370.
Sherrill v. Western Union Tel. Co.,
109.
Sherry v. Reynolds, 897.
Sherwin v. O'Cohnor, 829.
Sherwood v. Grand Ave. Ry. 219.
Shields v. State, 514.
Shiels v. Stark, 131, 450.
Shilling V. Braniff, 152, 194.
V. Shilling, 309.
Shimer v. Jones, 908.
Shinn v. State, 856.
V. Tucker, 99, 212, 526, 527, 769.
Shipp V. Com., 780.
Shively v. Cedar Rapids, I. F. &
N. W. Ry., 914.
Shober v. Wheeler, 328, 329, 811.
Shook V. Blount, 20.
Shorb V. Kinzie, 122, 123, 526.
Short V. Kelly, 105, 222.
V. Scott, 896.
V. State, 779, 780.
V. Woodward, 29.
Shrimpton & Sons v. Dworsky, 189.
Shryer v. Morgan, 878.
Shugart v. Halliday, 913, 915.
ShuU V. Raymond, 813, 822.
Shulse V. McWilliams, 857.
Shumard v. Johnson, 295, 311.
Shutte V. Thompson, 303.
Sibley v. RatlifCe, 570.
Sickle V. Wolf, 600, 602, 913.
Sidensparker v. Sidensparker, 847.
Sidney's Case, 36.
Sidway v. Missouri Land & Live
Stock Co., 178.
Sidwell V. Evans, 22.
Siebert v. Leonard, 853, 858.
V. People, 510.
V. State, 908, 915.
Sieling v. Clark, 408.
Sierra Union Water & Min. Co. t.
Baker, 800, 805.
1000
TABLE OF CASES.
[BEPEBENCES ABE TO PAGES.]
SIgal V. Miller, 307.
Slgerson v. Pomeroy, 227.
Silberberg v. Pearson, 174, 303.
Silsby V. Michigan Car Co., 872.
Silver v. Parr, 852, 857.
Silverthorn v^ Powle, 23, 24.
Simmon v. Larkin, 888, 906.
Simmons v. Central New England
& W. R. Co., 807.
V. Chicago & T. R. Co., 10.
V. Insurance Co., 768, 769.
V. Pennsylvania R. Co., 90.
V. St. Paul & C. Ry. Co., 341.
V. State, 621, 622, 684.
V. United States, 89.
Simms v. Floyd, 358.
Simonds v. Clapp, 884.
v. Oliver, 292, 342.
Simons v. State, 405.
Simonton v. Rohm, 905.
Slmpkins v. Smith, 298, 878.
Simpson V. Blount, 137, 300.
V. Downing, 300.
V. Krumdick, 912, 914.
V. Pegram, 870.
V. Post, 65, 195.
V. Schulte, 854.
V. State, 641.
V. Wray, 352.
Simpson Brick Press Co. v. Worm-
ley, 232.
Sims V. Boynton, 20, 879.
V. James, 349.
V. Southern Ry. Co., 174, 208.
V. State, 719.
Sinclair v. Berndt, 229.
V. Murphy, 888.
Sindram v. People, 97.
Sines V. Wayne County Poor Su-
p'rs, 28.
Singer Mfg. Co. v. Hudson, 915.
Singer & Talcott Stone Co. v. Sin-
clair, 908.
Singleton v. State, 342.
Sinker v. Diggins, 466.
Sioux City, etc., R. Co. v. Brown,
304.
Sioux City & P. R. Co. v. Finlayson,
216, 224, 292, 300, 320, 410,
531, 908.
V. Smith, 72.
V. Walker, 184.
Sltterlee v. State, 488, 749.
Slttig T. Birkenstack, 361, 460. 870.
Skates v. State, 887, 916.
Skinner v. McAllister, 882.
V. Majors, 359.
V. State, 297.
Skipper v. State, 553, 562, 563.
Slater v. Carter, 339-341.
Slatten v. Konrath, 16.
Slaymaker v. St. John, 352.
V. Fremont, E. & M. V. R. Co.,
10.
Sledge V. State, 579.
Slingerland v. Keyser, 194.
Sloan V. Lingafelter, 298.
V. State, 856.
Small V. Brainard, 72.
V. Williams, 763, 814.
Smalley v. Hendrickson, 28, 29.
Smart v. White, 334.
Smathers v. State, 840.
Smedis v. Brooklyn & R. B. R. Co.,
148.
Smith V. Atwood, 819.
V. Bank of New England, 183,
189, 196, 366.
V. Bean, 806.
V. Binder, 905.
V. Brown, 891.
V. Carrington, 96, 339, 391.
V. Caswell, 302.
V. Chicago, M. & St. P. Ry. Co.,
763.
V. Childress, 850.
V. Cisson, 828.
V. Clay, 367.
V. Clayton, 18.
V. Coleman, 820.
V. Collins, 109, 151, 154.
V. Crichton, 260, 261.
V. Dukes, 69.
V. Bdelstein, 776.
V. Eno, 381.
V. Faulkner, 14, 21, 23.
V. Pordyce, 351.
V. Gebhardt, 807.
V. Gilmor, 354.
V. Houston, 879.
V. Hutchinson, 28.
V. Irwin, 366.
V. J. W. Wilson & Boatman
Sav. Bank, 363.
V. Kelly, 434.
V. King, 739, 879, 881, 902, 913.
V. McMillan, 425, 427.
V. Matthews, 295, 300, 807, 814.
V. Maxwell, 460.
V. Mayfleld, 463.
TABLE OF CASES.
1001
[references are to faqes.]
Smith T. Meldren, 908.
V. Meyers, 101, 104.
V. Milwaukee Builders' & Trad-
ers' Exchange, 574, 575.
V. Overby, 151.
V. Pittsburg, Ft. W. & C. Ry.
Co., 301.
V. People, 441, 661, 744.
V. Ramer, 891.
V. Richmond, 339, 340.
V. Rodecap, 169.
V. St. Louis Beef Canning Co.,
448.
V. St. Paul & D. R. Co., 380,
387.
V. Smith, 830.
V. State, 83, 89, 106, 146, 268,
320, 325, 363, 366, 370, 371,
379, 389, 393, 402, 441, 495,
545, 547, 552, 578, 663, 665,
696, 703-705, 714, 723, 729,
742, 743, 756, 757, 760, 761,
786, SOI, 807, 821, 875, 885,
914.
V. Sweeney, 819, 824.
V, Thompson, 352.
V. United States, 441, 808.
V. Wabash, St. L. & P. Ry. Co.,
563.
V. Whitman, 465.
V. Wilmington & W. R. Co., 203.
V. Wood, 380.
Smith's Heirs v. Roberson, 175.
Smithwick v. Andrews, 232, 233.
Smitson v. Southern Pac. Co., 135,
877, 910, 911.
Smoke v. Jones, 427.
Smokey v. Johnson, 806.
Smothers v. Hanks, 908.
Smurr v. State, 266, 271, 284, 914.
Smyth V. Caswell, 302.
Snapp V. Stanwood, 198.
Sneed v. Creath, 119.
Snell V. Snell, 823.
V. State, 641.
V. United States, 184.
Sniffen v. Koechling, 346.
Snively v. Fahnestock, 380, 385.
Snouffer'a Adm'r v. Hansbrough,
450, 888.
Snow V. Penobscot River Ice Co.,
183, 339.
Snyder v. Eldridge, 827.
V. Nelson, 827.
V. State, 554, 763.
Smith V.Viola Min, & Smelting Co.,
813.
V. Wilson, 425.
Soell V. Hadden, 15.
Soladanels v. Missouri Pac. R. Co.,
871.
Solander v. People, 485, 498.
Solarte v. Melville, 89.
Solary v. Stultz, 14, 15.
Solem V. Virginia & T. R. Co., 909.
Solomon v. City Compress Co., 170,
227.
v. Friend, 870.
Somers v. Pumphrey, 169.
Sommer v. Carbon Hill Coal Co.,
147.
V. Gilmore, 352, 917.
V. Huber, 425, 426.
Sommers v. Mississippi & T. R. Co.,
340.
Soper Lumber Co. v. Halsted &
Harmount Co., 354.
Sorenson v. Northern Pac. R. Co.,
90, 97.
Souey V. State, 360, 376.
Soule V. Winslow, 199.
South & North Alabama R. Co. v.
Brown, 846.
V. Jones, 819, 874.
V. McLendon, 819.
V. Seale, 349.
V. Wood, 886.
Southern Bell Tel. & Tel. Co. v.
Watts, 382.
Southern Cotton Press Mfg. Co. v.
Bradley, 384.
Southern Exp. Co. v. Crook, 15.
V. Van Meter, 278, 801, 828, 838,
896.
Southern Ins. Co. v. White, 459.
Southern Ins. & Trust Co. v. Lewis,
175.
Southern Life Ins. Co. v. Wilkin-
son, 110.
Southern Mut. Ins. Co. v. Hudson,
8, 597.
Southern Pac. Co. v. Hall, 874.
Southern R. Co. v. Ferguson, 187.
V. Kendrick, 134, 167.
V. Lynn, 342, 874, 876, 905.
V. Pugh, 367.
V. Reaves, 198, 240, 242.
V. Shirley, 363.
V. Wilcox, 206.
Southwestern R. Co. v. Papot, 198.
1002
TABLE OF CASES.
[bEFEKENCES ABE TO PAGES.]
Southwestern R. Co. v. Singleton,
63, 231, 233.
Southwestern Telegraph & Tele-
phone Go. V. Newman, 768, 769.
Southwestern Virginia Imp. Co. v.
Prari, 838.
Souvais V. Leavitt, 2, 3, 887, 903.
Sowerwein v. Jones, 833.
Spain V. Howe, 368.
Spalding v. Taylor, 16, 18.
Sparks v. Dawson, 570.
V. Mack, 160.
V. State, 207, 256, 320, 349, 520.
Spaulding v. Adams, 359.
V. State, 196, 366.
Spears v. State, 645, 689, 876, 909.
V. Town of Mt. Ayr, 211.
Specht V. Howard, 465.
Speer v. Rowley, 89.
SppTicp V Board of Com'rs of Owen
Co., 198.
Spencer v. Daggett, 776.
V. St. Paul & a. C. R. Co., 806.
V. State, 621, 622.
V. Tozer, 907.
Spensley v. Lancashire Ins. Co., 599.
Sperry v. Helman, 468.
V. Miller, 908.
V. Spaulding, 358, 363.
Spicer v. State, 550.
Spies V. People, 47-49, 53-55, 652,
663, 680, 907.
Spillane v. Missouri Pac. Ry. Co.,
170.
Spiro V. Pelton, 12.
Spivey v. State, 5.
Sprague v. Atlee, 220.
Spray v. Scott, 821.
Spring Garden Mut. Ins. Co. v.
Evans, 361.
Springdale CemeteryAss'n v.Smith,
905,908.
Springer v. Stiver, 89, 90.
V. United States, 341.
Springsteed v. Lawson, 797.
Sprinkle v. Taylor, 451.
Spurlock v. West, 3, 297.
Squire Dingee Go. v. McDonald,
894, 896.
Squires v. Anderson, 19.
V. Gamble-Robinson Commis-
sion Co., 200.
Stacker v. Louisville & N. R. Co.,
367.
Stackhouse v. Wheeler. 825.
Stacy v. Greenwade, 183.
Stadden v. Hazzard, 14, 901.
Stafford v. Bacon, 300.
v. City of Oskaloosa, 222.
v. Hussey, 365.
Stalzer v. Jacob Dold Packing Co.,
366.
Stamm v. Coates, 287.
Stamper v. Raymond, 366.
Standard Oil Co. v. Amazon Ins.
Co., 803, 804.
V. Bretz, 888, 906.
Stanford v. Felt, 474.
V. Murphy, 225.
Stanhope v. Swafford, 805.
Stanley v. Bank of Mobile, 890, 893.
v. Montgomery, 728.
v. Samples, 20.
V. Sutherland, 1, 270, 272, 275.
Stansbury v. Fogle, 800.
Stanton v. Bannister, 334.
V. Estey Mfg. Co., 853, 863.
v. French, 865.
V. State, 839, 340, 364.
Staples V. Wellington, 891.
Stapp V. State, 735.
Stare v. Daley, 592.
Stark V. Barrett, 18.
y. Willetts, 223, 224.
Starnes v. Schofield, 832.
Starr v. United States, 130.
Starry v. Winning, 856.
Staser v. Hogan, 797, 883.
State v. Adair, 8, 4M, 497, 510, 575,
629, 662.
v. Adamson, 825.
v. Addy, 102, 127, 140.
v. Ah Mook, 833, 915.
V. Ah Tong, 101, 122.
V. Alcorn, 441, 443.
V. Alexander, 425, 426.
v. Allen, 700.
V. Alston, 892, 893.
V. Alverez, 80.
V. Anderson, 20, 259, 302, 340,
377, 381, 627, 635, 646. 682,
904.
V. Andrews, 698, 704.
V. Angel, 115.
V. Asbell, 706.
v. Ashberry, 108, 134.
V. Aughtry, 197.
V. Austin, 498.
V. Avery, 437.
TABLE OF CASES.
1003
[BEPEEENCES ABE TO PAGES.]
State V. Babb, 9.
State
V. Babcock, 855.
T. Bailey, 151, 208, 301, 365.
V.
V. Baldwin, 320, 382.
V.
V. Ballerio, 58, 59.
y.
V. Banister, 909.
y.
V. Banks, 78, 319, 323, 445, 484,
y.
555.
y.
V. Barbee, 329, 334, 337, 418.
y.
V. Barber, 482, 483, 486.
y.
V. Barnes, 65, 380, 386.
y.
V. Barrow, 287.
V. Bartlett, 838.
y.
V. Bayne, 799.
V.
V. Beakmo, 856, 857.
y.
V. Beaird, 795, 834.
V.
V. Beal, 13. ■
V.
V. Beaucleigh, 556.
y.
V. Becton, 275, 438.
V.
V. Beebe, 365, 380.
y.
y. Benner, 100.
y.
V. Bennet, 101.
y.
y. Bennington, 266, 278, 282.
y.
y. Berkley, 891, 893.
y.
V. Betsall, 482, 485.
y.
y. Bickel, 329, 332.
y.
y. Bige, 105.
V.
y. Billings, 874.
y.
y. Bingham, 368.
y.
V. Bird, 853.
V.
y. Birmingham, 266, 278, 284.
y.
y. Black, 805.
y.
y. Blackwell, 421.
y.
V. Blunt, 623, 662.
y.
y. Bohan,510, 511, 575, 599, 601.
y.
y. Boon, 211, 381.
y.
V. Bowman, 381, 388.
y.
y. Boyd, 904.
V.
y. Boyle, 131, 137, 140, 294, 326.
T.
y. Brabham, 381, 820.
y.
y. Bradford, 366.
y.
y. Brady, 137, 326.
y.
V. Brainard, 224, 292, 293, 319,
y.
322.
y.
y. Branstetter, 319, 323, 326.
y.
y. Brennan, 906.
y.
y. Brette, 877.
V.
V. Brewer, 101, 381, 646, 809,
V.
852, 857.
y.
V. Bridges, 655.
y.
y. Brin, 799.
y.
y. Brifiyea, 304.
y.
V. Broadwell, 846, 852.
y.
V. Brooks, 320.
y. Brown, 366, 469, 482, 485^
515, 517, 553, 563, 854.
, Bruce, 753.
, Brumley, 916.
, Bryan, 668, 710.
, Bryant, 587.
, Buckley, 48, 50, 891, 893.
, Bungardner, 285, 286.
, Burk, 829.
Burns, 290, 841.
Burpee, 32, 34, 35, 39, 40, 42,
43.
Butler, 909.
Butterfield, 741.
Byers, 501, 639.
Caddon, 101.
Cagle, 904.
Cain, 160, 199, 882.
Caldwell, 888, 906.
Calkins, 914.
Callahan, 60, 798.
Cameron, 613, 615.
Cantlin, 240, 253, 806.
Canty, 210.
Cardelli, 366.
Cardwell, 78, 727.
Carey, 510.
Carr, 380, 386, 614.
Carson, 700, 701.
Carter, 100, 105, 409.
Casford, 441.
Cassady, 339, 344, 859.
Cayeness, 789.
Cazeau, 877.
Chambers, 200.
Chandler, 134, 415, 422.
Chatham Nat. Bank, 873.
Cbee Gong, 621, 622, 635.
Cheyalller, 263, 285, 569.
Chiles, 407.
Chopin, 817.
Christmas, 359.
Chyo Chiagk, 486, 490.
Clara, 240.
Clark, 323, 830.
Clary, 258.
Cleayes, 339.
Cleyenger, 167, 753.
Clough, 5, 7.
Coates, 484, 485.
Cody, 324.
Cole, 60, 441, 531.
Collins, 385, 637, 638, 779,
780.
1004
TABLE OF CASES.
[keferences are to pages.]
state V. Conley, 299.
State
V. Connelly, 267.
V.
v.. Conway, 619.
V.
V. Cook, 515.
v.
V. Cooper, 285.
V.
V. Corbin, 20.
V.
v. Corcoran, 913.
V.
V. Costner, 13.
V. Cox, 299, 469.
V.
V. Crab, 483.
V.
V. Craige, 854.
V.
V. Crank, 742.
V.
V. Crawford, 653, 672.
V.
V. Crews, 382.
V.
V. Crockett, 652, 829.
V.
V. Cross, 647.
v.
V. Crossley, 765.
V.
V. Croteau, 30, 38, 42
V.
V. Cunningham, 790,
888,
889,
V.
V. Curran, 672.
V.
V. Curren, 372.
V.
V. Curtis, 623.
V.
V. Cushenberry, 8, 662,
670.
V.
V. Gushing, 560, 680.
V.
V. Daly, 101.
V.
V. Dana, 485.
V.
V. Daniels, 857.
V.
V. Daugherty, 898.
V.
V. Davenport, 302, 430
433
706,
V.
811.
v.
V. David, 662, 705.
V.
V. Davies, 911.
V.
V. Davis, 143, 173, 300
381,
390,
V.
372, 401, 544, 800
^
V.
v. Dawkins, 117.
V.
V. Dawson, 482, 483, 485.
V.
V. Day, 117.
V.
V. Debnam, 301, 826.
V.
V. Delong, 18.
V.
v. De Mosse, 267, 287.
V.
V. Dennison, 13, 121.
V. Desforges, 60.
V.
v. Dick, 122, 125.
V.
V. Dickerson, 854, 860.
V.
V. Dickey, 8, 652, 655,
662,
681.
V.
V. Dickson, 737, 891,
893,
901,
V.
907.
V.
y. Dineen, 656.
V,
V. Dixon, 719.
V.
v. Dodson, 302, 318.
V.
V. Donahoe, 324.
V.
V. Donnelly, 200, 485,
696,
698,
V.
699, 885, 889.
V.
V. Donohoo, 303.
V.
V. Donovan, 106, 909.-
Dorland, 100.
Douglas, 588.
Douglass, 864.
Drawdy, 34, 43, 632.
Dudoussat, 432.
Dufty, 64, 108, 131, 389, 392,
733.
Duncan, 556, 662.
Dunlap, 381.
Dunlop, 326.
Dunn, 672, 676.
Durbin, 210.
Durr, 380.
Dwire, 556.
Easton, 365.
Eaton, 382.
Edwards, 101, 119.
Eliason, 830.
. .Elkins, 103, 563.
Ellick, 886.
Elliott, 365, 445, 498, 870.
Ellis, 442.
Elsham, 664, 681.
Emory, 624.
Empey, 864, 890:
Engeman, 334.
Engle, 405.
English, 839.
Enslow, 740.
Erb, 442.
Estep, 299, 440, 441.
Evans, 383, 386, 445, 614.
Ezzard, 206.
Fairlamb, 515, 698.
Palk, 299, 304.
Fannon, 392, 644.
Felter, 672.
Fenlason, 795, 796, 800, 829.
Ferguson, 377, 864, 866, 907,
917.
Fisher, 481, 515, 662.
Fiske, 515, 517, 575.
Fitzgerald, 167, 168.
Flaherty, 819.
Flanagan, 13.
Floyd, 178, 179, 227,
Pontenot, 369.
Fooks, 279.
Ford, 60, 61.
Forrester, 864, 884.
Forsha, 833, 841.
Forsythe, 5.
Freeman, 42, 117, 913.
TABLE OF CASES.
1005
[SEFESENGE'J ABE TO PAGES.]
State V. Preidrich, 368.
State V. Hanlon, 303, 318.
V. Prisby, 424, 430, 433.
V. Hannibal, 907.
V. Proelick, 444.
V. Hardee, 524, 525.
V. Pry, 677.
V. Harden, 861.
V. Purgerson, 197, 509, 596, 782.
V. Hardin, 482, 483, 485, 624,
V. Gann, 64.
632.
V. Gardner, 817.
V. Harding, 266, 279, 281, 282.
V. Garic, 365.
V. Hargett, 381.
y. Garrand, 441, 443.
V. Hargrove, 441.
V. Garvin, 748.
V. Harkins, 125, 126, aoo, 485,
V. Gaskins, 359.
858, 917.
V. Gaston, 782.
V. Harrell, 820.
V. Gates, 900.
V. Harrington, 76.
V. Gee, 700, 75G.
V. Hart, 826, 880.
V. Geier, 9.
V. Hartleb, 365.
V. Gibbons, 184, 185, 359, 379,
V. Hartzell, 169.
390, 394.
V. Hatcher, 913.
V. Gilmer, 359.
V. Hawkins, 454.
V. Gilmore, 267.
V. Hayden, 672, 714, 827, 829.
V. Gllreath, 820, 875.
V. Hayes, 9.
V. Glass, 199, 270, 272, 707, 708.
V. Hazen, 298.
V. Gleim, 104, 715-717.
V. Hecox, 66.
v. Glover, 117, 118.
V. Heinze, 731.
V. Glynden, 212, 327.
V. Helvin, 293, 298, 320.
V. Godfrey, 101, 121.
V. Hemrick, 852, 856.
V. GofE, 183, 195, 614.
V. Hendricks, 198, 441.
V. Golden, 803.
V. Hennessy, 647, 672.
V. Good, 275, 741, 742.
V. Henry, 581, 583, 634, 745.
V. Goode, 857.
V. Herold, 84.
V. Gorham, 454.
V. Herrell, 169.
V. Gould, 310.
V. Hickam, 555.
V. Grady, 310,
V. Hill, 458, 718, 865, 867.
V. Grayor, 75.
v. Hilsabeck, 806.
V. Grebe, 606.
V. Hing, 296, 300.
V. Green, 100, 132, 134, 199, 391,
V. Hinkle, 537.
458, 486.
V. Hinson, 381, 388.
V. Greer, 102.
v. Hodge, 743.
V. Gregory, 366, 821, 907.
V. Hogard, 515, 516, 575.
V. Griffin, 806.
V. HoUingswortli, 375, 522, 731,
V. Grinstead, 765, 913.
764.
V. Groning, 379.
V. SoUoway, 662.
V. Grote, 827.
V. Holmes, 240, 583, 585.
V. Gunter, 623.
V. Hope, 234.
V. Gurnee, 817.
V. Hopkins, 285, 286, 321.
V. Haase, 299, 316.
V. Horning, 581.
V. Hahn, 100.
V. Horton, 349, 351, 390, 399.
V. Haines, 146.
V. Horton Land & Lumber Co.,
V. Hair, 806.
185.
V. Hale, 555, 559, 640, 742.
V. Howard, 437.
V. Halford, 827.
V. Howell, 412, 635, 820.
V. Hall, 831, 897.
V. Hoy, 505.
V. Hamann, 369.
V. Huber, 266.
V. Hamilton, 632, 639, 643, 677.
V. Hudspeth, 730.
V. Hamey, 137, 138, 486, 487.
V. Humason, 743.
1006
TABLE OP CASES.
[eefekences ake to pages.]
state V. Hundley, 101, 104, 105.
V. Hunter, 852, 857.
V. Hurst, 102.
V. Hutchings, 331, 333.
V. Huxford, 875.
V. Hyde, 13, 14.
V. Hyer, 482, 483, 486.
V. Hymer, 515, 516, 575.
V. Illsley, 299.
V. Ingram, 697.
V. Jackson, 26, 100, 301, 485,
528, 617, 688, 870.
V. Jacob, 473.
V. Jacobs, 864, 866.
V. James, 140.
V. Jansen, 912.
V. Jaynes, 621, 638.
V. Jeandell, 34, 43.
V. Jelinek, 304.
V. Jenkins, 127.
V. Jennings, 635.
V. Jim, 560.
v. Johnson, 60, 210. 417, 443,
446, 557, 618, 632, 633, 636,
649, 786, 787, 789, 843, 887.
V. Jones, 9, 43, 140, 160, 211,
213, 273, 326, 327, 381, 391,
474, 485, 487, 590, 786, 832,
915, 917.
V. Josey, 635, 638.
v. Jurche, 59.
V. Kansas City, Ft. S. & M. R.
Co., 570.
V. Kearley, 368, 647, 654, 655.
V. Keasling, 167, 169.
V. Keele, 446.
V. Kellerman, 485, 558, 559.
V. Kelly, 279, 480, 510, 619, 624
741, 742.
V. Kennade, 806.
V. Kennedy, 742.
V. Kessler, 417, 421.
V. Keyes, 885.
V. Kilgore, 146, 319, 320, 326.
V. King, 365.
T. Kinkead, 887.
V. Kinley, 583, 584.
V. Kirkpatrick, 544.
V. Kissock, 183, 194.
V. Kline, 632.
V. Knight, 299.
V. Kornstett, 151, 441, 444.
V. Kotovsky, 442.
V. Krug, 615, 662.
State V. Kuehner, 464.
V. Kyne, 910.
V. Labuzan, 199.
V. Lacombe, 160.
V. Ladd, 457.
V. La Grange, 918.
V. Landry, 614.
V. Laurie, 160, 406, 915.
V. Lavin, 469, 779.
V. Lawlor, 488.
V. Lawrence, 421.
V. Lee, 651, 876, 909, 918.
V. Leeper, 320, 325.
V. Lefaivre, 15.
V. Leppere, 591.
V. Lett, 562.
V. Levigne, 3. 362.
V. Lewis, 621, 622, 624, 625, 635.
V. Lightsey, 415, 416, 421.
V. Lindley, 581, 588.
V. Lingle, 515.
V. Lipsey. 129-131, 137-139.
V. Litchfield, 482.
V. Little, 892, 893.
V. Littlejohn, 562.
V. Loveless, 121, 847, 856.
V. Lull, 779, 781.
V. Lynott, 90.
V. Lyons, 364.
V. McCann, 510.
V. McCarter, 762.
V. McCartey, 352, 365, 380, 576.
V. McCartney, 787.
V. McCarty, 645.
V. McClanahan. 831.
V. McClintic, 908.
V. McClintock, 836.
V. McCombs, 401.
V. McCoy, 753.
V. McCune, 660, 662.
V. McDaniel, 369.
V. McDevitt, 554.
V. McDonald, 764.
V. McDonnell, 212.
V. McDuffie, 820.
V. McGahey, 369.
V. McGarry, 628, 630, 632, 633.
V. McGinnis, 159, 510, 511.
V. McKee, 48.
V. Mc]L,afferty, 273.
V. McLain, 257.
V. McMurphy, 581, 588, 589.
V. McNair, 918.
V. McNally, 438, 439, 915.
TABLE OP CASES.
1007
[references are to pages.]
State V. McNamara, 354, 581, 593,
595.
V. McNeill, 381.
T. Maguire, 510, 511.
V. Mahan, 441, 443, 860.
V. Maher, 366, 376, 632.
V. Mahoney, 101, 112, 366.
V. Mallon, 854.
▼. Maloney, 743.
V. Maloy, 672, 903.
V. Manly, 799.
V. Marshall, 464, 779.
V. Martin, 904.
T. Mason, 482, 486.
T. Mathews, 907.
V. Matthews, 58, 60, 292, 319,
326.
T. Maxent, 419.
V. Maxwell, 422.
V. May, 917.
V. Mayberry, 886.
v. Meader, 466, 467.
V. Meagher, 557-559,
V. Meller, 467.
V. Merrick, 743.
V. Meshek, 84, 226.
V. Metcalf, 499, 510.
T. Meyer, 42, 650, 665, 666.
V. Meyers, 302, 827.
V. Miller, 43, 45, 200, 366, 380,
425, 430, 434, 485, 497, 498,
510, 515, 545, 625, 635, 646,
854, 863, 877, 907, 908.
V. Milling, 706.
V. Mills, 382.
V. Mims, 380.
V. Minor, 485.
T. Missio, 355.
V. Mitchell, 5, 115, 893.
V. Mix, 178, 464.
V. Mize, 441, 442, 445.
V. Moore, 84, 166, 167, 342, 520,
522, 852, 857.
V. Moorman, 132.
V. Morgan, 495.
V. Morris, 136-138, 292, 309, 326.
V. Morrison, 151, 240, 515.
V. Morse, 510.
V. Mortimer, 84, 283.
V. Moses, 138, 139, 141, 326.
V. Mosley, 647.
V. Moss, 687.
V. Mounce, 515.
V. Mowry, 441.
State V. Moxley, 696.
V. Moy Looke, 14.
V. Munson, 114.
V. Murdy, '647, 908.
V. Murphy, 662, 918.
v: Murray, 146, 617, 618.
V. Musgrave, 566.
V. Myers, 319, 326.
V. Napper, 515, 516.
V. Nash, 501, 654.
V. Nat, 575.
V. Nauert, 167.
V. Neel, 650, 655, 656, 661.
V. Nelson, 668, 710, 827.
V. Neville, 366, 381.
V. Nichols, 843.
T. Nickens, 320, 325.
V. Nipper, 820, 854.
V. Noblett, 118, 131.
V. Nordstrom, 510, 730.
V. Northrup, 583, 632.
V. Norwood, 700.
V. Nugent, 325.
V. Obregon, 78, 79.
V. O'Brien, 259.
V. Obuchon, 197.
V. O'Connor, 378.
V. O'Day, 298.
V. O'Donald, 826.
V. O'Gorman, 891, 894.
V. O'Grady, 616.
V. O'Hagan, 319.
V. O'Hara, 445.
V. O'Neal, 300, 785, 787, 788.
V. Ormiston, 547.
V. Orr, 155.
V. Oscar, 653, 654.
V. Ostrander, 654, 663.
V. Ott, 179, 180, 381, 390.
V. Outs, 287.
V. Oxendine, 520, 521.
V. Owen, 535.
V. Owens, 469.
V. Pagels, 753.
V. Painter, 739.
V. Palmer, 319, 323, 445, 446,
554.
V. Pancoast, 366.
V. Parker, 199, 441, 510, 512,
597, 820, 893, 895.
V. Partlow, 363, 445.
V. Patrick, 806.
V. Patterson, 22-24,, 425, 488,
507, 510.
iy08
TABLE OF CASES.
[eefebences ake to pages.]
state V. Paxton, 806,
V. Peace, 197.
V. Peak, 523.
V. Pearce, 612, €14.
V. Peffers, 436, 437.
V. Pennell, 327.
V. Penney, 253, 677.
V. Perigo, 441, 443, 672.
V. Perkins, 9.
V. Perry, 556.
v. Peterson, 299, S65, 595, 619.
V. Petsch, 199, 382, 760.
, V. PfefEerle,292,299,320,322,349
V. Phelps, 367.
V. Phinney, 305.
V. Phlpps, 282, 299.
V. Pierce, 290, 454, 652, 664, 908.
V. Pike, 93, 212, 428, 429, 819.
V. Pitchard, 909.
V. Pitts, 408, 415.
V. Pollard, 806.
V. Pomeroy, 508.
V. Porter, 267, 380, 497, 581, 582,
588, 591, 619, 686.
V. Postlewait, 856.
V. Potter, 100, 107, 262, 266,
269, 270, 272, 277, 287, 299,
308, 486, 487, 560, 561, 891,
893.
V. Potts, 663.
V. Powers, 392, 581, 627, 640,
642, 659, 684.
V. Pratt, 468, 490.
V. Preston, 261, 282, 862.
V. Prine, 20.
V. Price, 878, 879.
V. Pritchard, 83.
V. Pritchett, 326.
V. Probasco, 798, 806.
V. Prudhomme, 482, 48fi, 487.
V. Pugsley, 907.
V. Rabourn, 834.
V. Ragsdale, 436.
v. Rainsbarger, 688.
V. Rambo, 827.
V. Rash, 81, 82.
V. Ratner, 835.
V. Rayburn, S.
V. Raymond, 687, 909.
V. Reasby, 441, 443.
V. Red, 632, 633.
V. Reddick, 753, 868.
V. Reed, 100, 299, 369, 380, 386,
6S2, 647, 649, 829.
State V. Reigart, 198.
V. Reidell, 535.
V. Reitz, 630.
V. Renfrew, 515.
V. Reynolds, 310.
V. Rhea, 441, 843.
V. Rheanas, 43.
V. Rhodes, 887.
V. Rice, 856.
V. Ricks, 834.
V. Riculfl, 200.
V. Robbins, 887.
V. Roberts, 548, 64€.
V. Robinson, 1«0, 302, 303, 313,
367, 391, 399, 612, 614, 677,
699. 849, 860.
V. Roe, 697.
V. Roger, 95, 100.
V. Rogers, 242, 326, 679.
V. Rollins, 415, 454.
V. Rome, 722.
V. Rook, 485.
V. Rorabacher, 676.
V. Rose, 130.
V. Rosener, 915.
V. Rounds, 647, 650.
V. Rover, 841.
V. Rowe, 332, 337, 418.
V. Rowland, 632.
V. Ruhlman, 906.
V. Ryan, 498, 515.
V. St. Clair, 300.
V. St. Geme, 380.
V. St. Louis Brokerage Co, 381,
386.
V. Saliba, 59.
V. Sands, 438, 439.
V. Sattley, 253, 255.
V. Sauer, 583, 647, 648.
V. Saunders, 458.
V. Savage, 876, S14.
V. Schaffier, 654, 655, 672.
V. Schoenwald, 672.
V. Schuessler, 841.
V. Scott, 58, 59, 299, 318, 3S1.
V. Sexton, 559, 564.
V. Seymour, 617, 618, 705.
V. Sheard, 798.
V. Shehane, 841,
V. Shelledy,' 524. 737.
V. Sbelton, 169,
V. Shenkle, 299, 322.
V. Shettleworth, 656, 667.
V. Shreves, 903.
TABLE OF CASES.
looy
[EEFEBENCES AEE TO PAGES.]
ite T. Sidney, 621, 622, 742.
State
V. Simas, 151, 693.
V.
V. Simmons, 199.
V.
V. Sipe, 831.
v. Sipult, 262, 282, 285, 287.
V.
V. Slack, 897.
V. Sljngerland, 515, 585, 701.
V.
V. Sloan, 677, 679.
V.
V. Smalls, 101.
V.
V. Smallwood, 552, 606.
V.
T. Smith, 13, 100 101, 115, 131,
V.
141, 142, 198', 239, 300, 302,
V.
390, 392, 425, 454, 491, 649,
V.
831, 835, 836, 886.
V.
V. Snell, 743.
V.
V. Snow, 42.
V.
V. Southwestern R. Co., 905.
V.
V. Spooner, 589.
V.
V. Staley, 816.
V.
V. Stanley, 379, 401, 617, 843,
V.
848. 903.
V.
V. Stanton, 839, 343.
V.
V. Starnes, 635.
V.
V. Start, 369.
V.
v. Stehblns, 482.
V.
7. Stein, 146.
V.
V. Stello, 132, 133.
V.
V. Sterrett, 441, 497, 498, 515.
- V. Stevens, 43.
V.
V. Stewart, 261, 283, 284, 289,
V.
• 355, 672, 679, 871, 891.
V.
V. Stoffel, 281.
V.
V. Stonum, 292, 319.
■V.
T. Stouderman, 211.
V.
V. Stout, 558, 560.
V.
V. Strattman, 515, 516.
V.
V. Straw, 299.
V.
V. Streeter, 515, 517, 575.
V.
V. Stubhlefield, 736.
V.
V. Sullivan, 101, 302, 747.
V.
V. Summers, 117, 140, 421.
V.
V. Sutfln, 553.
V.
V. Sutton, 169, 350, 619.
V.
V. Swain, 595, 663.
V.
V. Swallum, 194.
V.
V, Swayze, 106, 267, 285.
V.
V. Talt, 856.
V.
V. Talbott, 520, 741, 760, 761.
V.
V. Tally, 58, '59.
V.
V. Tarrant, 340, 581.
V.
V. Tate, 8.
V.
V. Tatlow, 379.
T.
v. Taylor, 8, 324, 481, 624, 626,
y.
635, 636, 680, 690, 705, 864.
T.
V. Teissedre, 843.
Tettaton, 86, 679. 681, 684.
Thomas, 48, 51, 283, 382, 556,
755.
Thompson, 72, 73. 556, 557,
758.
Tickel, 101.
Tilly, 887.
Tippet, 372.
Tisdale, 60.
Tohie, 523.
Todd, 8.
Totten, 674.
Towler, 465.
Tozier, 594.
True, 860.
Tucker, 359, 363, 369, 746.
Tulip, 369, 694.
Tull, 878, 882.
Turlington, 441, 446.
Turner, 154, 515, 885.
Tweedy, 298, 305.
Ulsemer, 500.
Umfried, 174.
Ussery, 137.
TJtley, 14.
Van Sant, 523, 556, 588, 590,
658, 660, 663.
Van Tassel, 661.
Van Winkle, 633.
Varner, 301, 811, 826.
Vicknalr, 492.
Viers, 298, 515.
Vinson, 660.
Walen, 646.
Walker, 485, 486.
Walters, 326, 743, 747.
Walton, 193.
Ward, 178, 366, 632, 633.
Waterman, 276, 627.
Watkins, 73, 390, 392.
Watson, 299, 487, 627.
Way, 786.
Weathers, 252.
Weber, 253.
Weeden, 37S.
Weems, 613.
Wells, 510, 917.
West, 66, 117, 366, 829.
Whalen, 646.
Wheeler, 438, 440.
WhitaSer, 195, 196.
White, 122, 123. 140.
Whltmlre, 832.
Ins. to Juries— 64.
1010
TABLE OF CASES.
[BEFEBENCES ABE TO FAOES.]
State V. "Whitney, 64.
V. Whittle, 27, 101, 115.
V. Whorton, 876, 908.
V. Wllgus, 822.
V. Wilkmson, 42, 829.
V. ■Williams, 16, 81, 102, 365,
417, 556, 560, 677, 8,08, 860.
909.
V. Williamson, 486, 487, 740,
843, 847, 852, 857.
V. Wilner, 754.
; V. Wilson, 13, 359, 387, 746,
918.
V. Wine, 382.
V. Wines, 611, 616.
V. Winter, 365.
V. Wisdom, 510, 511, 737.
V. Witt, 677.
V. Wolff, 464.
V. Wood, 645.
V. Woolard, 487.
V. Wright, 32, 33, 35, 42, 43,
206, 380, 624, 646.
V. Wroth, 425, 426.
V. Wyatt, 852, 856, 857.
V. Wyse, 109.
V. Yarborough, 908.
V. Young, 445, 515, 716, 913.
V. Zeibart, 741.
V. Zorn, 510, 511.
State Bank v. Hubbard, 209..
V. McGuire, 174, 175.
State Bank of Springfield v. Ben-
nett, 315.
State Ins. Co. v. Curry, 839.
State Sav. Ass'n of St. Louis v.
Hunt, 208.
Staten v. State, 152.
Stayner v. Joyce, 452.
Steamboat Albatross v. Wayne, 885.
Steamboat Blue Wing v. Buckner,
178, 200.
Stearns v. Janes, 838.
V. Johnson, 850, 853.
V. Reidy, 359.
Stebbins v. Keene Tp., 408.
Stedman v. Western Transp. Co.,
300, 307.
Steed V. Knowles, 154, 242.
Steeg V. Walls, 832.
Steele v. Davis, 72.
V. State, 99, 104.
Steen v. Sanders, 596, 597.
Steffy V. Carpenter, 6.
Stein V. City of Council Bluila, 195.
V. Vannice, 881, 904.
Steinbrunner v. Pittsburgh & W.
Ry. Co., 142, 143.
Steiner v. Ellis, 154, 156.
V. People, 647, 688, 689.
V. State, 441.
Steinham v. United States, 482, 486.
Steinmyer v. People, 915.
Steinwehr v. State, 885.
Steinwender v. Creath, 257.
Stennett v. Bradley, 303, 893, 894.
Stephen v. State, 78, 79.
Stephens v. Anderson, 303.
V. Hannibal & St. J. R. Co.,
465.
V. Mattox, 395.
V. Motl, 302.
V. People, 89, 586.
Stephenson v. State, 266, 271.
V. Thayer, 100, 327.
Sterling v. Callahan, 227, 916.
V. Ripley, 340.
V. State, 324.
V. Sterling, 466.
Sterling Bridge Co. v. Baker, 879.
Sterling Organ Co. v. House, 329,
331 333
Stetler v. Chicago & N. W. Ry.204.
V. King, 839.
Stettinius v. United States, 34, 35,
43, 44.
Stevens v. Central Railroad &
Banking Co., 295, 297.
V. City of Minneapolis, 531.
V. Pendleton, 12, 763, 764.
V. Snyder, 65.
V. State, 370, 374, 624, 626.
V. Stevens, 690, 906.
V. Talcott, 90, 96, 97.
Stevenson v. Chicago & N. W. Ry.
Co., 408.
V. Hancock, 162.
V. Moody, 821.
Stewart v. Anderson, 8, 480.
V. City of Clinton, 255.
V. City of Ripon, 317.
V. De Loach, 528.
V. Harper, 798.
V. Mills, 354, 838.
V. Murray, 809.
V. Nelson, 83.
V. New York, 0. & W. R. Co.,
390, 392.
TABLE OF CASES.
1011
[BKFEBENCBS ABE TO PAGES.]
Stewart v. Russell, 195.
V. Sixtb Ave. R. Co., 10.
V. Sonneborn, 739.
V. Southard, 184.
V. Spedden, 340, 344.
V. State, 291, 366, 488, 581, 583,
878.
V. Wyoming Cattle Ranche Co.,
808.
Stiokel V. Bender, 450.
Stier V. City o£ Oskaloosa, 65, 857,
911.
Stillwell V. Gray, 174, 887.
Stiltz V. Hawkeye Ins. Co., 221.
Stimpson v. Westchester R. Co.,
844.
Stipp V. Spring Mill & Williams
Creek Gravel R. Co., 888.
Stirling v. Stirling, 885.
Stith V. Fullinwider, 817, 822.
Stitt V. State, 824.
Stitz V. State, 679.
Stookdale's Case, 36.
Stocker v. Green, 227, 448.
Stocks V. Scott, 151, 775.
Stockton V. Prey, 342.
V. Stockton, 852, 884.
Stockwell V. Brant, 906, 908, 914.
V. Byrne, 304, 306.
Stotter V. State, 559.
Stokes V. Johnson, 725.
V. Ravenswood Distillery Co.,
■ 208.
Stokes' Ex'r v. Shippen, 238.
Stone V. Chicago & N. W. R. Co.,
272, 273.
V. Geyser Quicksilver Min.
Co., 726.
V. Kaufman, 879.
V. Pennock, 448.
V. Redman, 295, 311.
V. State, 247, 488, 698.
V. Western Transp. Co., 822.
Stoner v. Devilbiss, 800.
Stooksbury v. Swan, 101, 727.
StoothofC V. Long Island R. Co.,
807.
Storch V. Carr, 301.
Storms V. White, 183.
Storrs V. Emerson, 188.
V. Feick, 197.
Story V. State, 903, 906, 916.
Stott V. Smith, 849, 861.
Stoudt V. Shepherd, 455, 457.
Stout V. Cloud, 175.
V. State, 654, 655, 703, 906, 908,
915.
V. Turner, 857.
Stovall V. eom., 194.
V. Fowler, 819, 824.
Stove V. People, 584, 611, 742, 744.
Stowell V. Goodenow, 295.
Straat v. Hayward, 162, 163, 871.
Strachan v. Muxlow, 823.
Strader v. Goff, 864.
V. Marietta & C. R. Co., 822.
Strahle v. First Nat. Bank of Stan-
ton, 11.
Strattan v. Paul, 280.
Stratton v. Central City Horse Ry.
Co., 768, 773.
V. Dole, 897.
V. Staples, 304, 872.
Straus V. Minzesheimer, 65.
Strawbridge v. Cartledge, 888.
Strawn v. Shank, 139.
Street v. Lynch, 297, 314, ,349.
V. Sinclair, 767.
V. State, 160, 161, 909.
Strehmann v. City of Chicago, 239,
240, 249.
Strepey v. Stark, 273.
Strickfaden v. Zipprick, 827.
Strickland v. Hamlin, 365.
V. Hudson, 853, 856.
Stringer v. Singleterry, 188.
Stringham v. Cook, 268, 287.
Stroh V. Hess, 17.
Strohn v. Detroit & M. R. Co., 815.
Strong V. Kamm, 877.
V. State, 8, 174, 194, 550, 881.
Stroud V. State, 814.
Struckman v. State, 696.
Stuart V. People, 631.
Stucke V. Milwaukee & M. R. Co.,
200, 340.
Stuokey v. jj'ritsche, 292, 293.
Stuckslager v. Neel, 301.
Stude V. Saunders, 327.
Stull V. Howard, 848, 851, 856.
Stumps V. Kelley, 290.
Sturgeon v. Sturgeon, 217.
Suddarth v. Robertson, 447
Suddeth v. State, 105, 194, 492, 495.
Sudlow V. Warshing, 300.
Suiter V. Park Nat. Bank, 12.
Sullivan v. Collins, 277.
V. Deiter, 788.
i012
TABLE OF CASES,
[EEFEKENCES ABB TO PAGES.]
Sullivan v. Finn, 884.
V. Honacker, 20.
V. Jefferson Ave. Ry. Co., 895.
V. Jones, 302.
V. North Hudson C0.JI. Co., 904.
V. People, 912.
V. State, 303, 613, 659, 749.
V. Sullivan, 808.
Suiter V. State, 644.
Summerlot v. Hamilton, 169.
Sumner v. State, 703.
Sunman v. Clark, 901.
Sunset Telephone & Telegraph Co.
V. Day, 899.
Surher v. Mayfield, 775, 876.
V. State, 332.
Sutherland v. .Hankins, 263, 286,
834.
V. Round, 808.
V. Venard, 278, 282, 287.
Sutro V. Easton, Eldridge & Co.,
364.
Sutter V. Vanderveer, 863.
Suttie V.' Aloe, 879, 881, 914.
Suttle V. Finnegan, 359.
Sutton V. Com., 720.
V. Madre, 207.
V. Menser, 195, 196.
V. Sadler, 89.
Swaggerty v. Caton, 423.
Swain v. Swain, 888.
Swales v. Grubbs, 450.
Swallow V. State, 338, 342.
Swan V. Lullman, 145, 916.
Swann v. State, 52-54.
Swartwout v. Michigan Air Line R.
Co., 283, 284.
Sweeney v. Easter, 19.
V. Merrill, 159.
V. State, 43, 178.
Sweet V. Excelsior Electric Co., 184.
V. Leach, 911, 915.
Sweetser v. Dobbins, 449.
Sweitzer v. Hummel, 175.
Swift & Co. V. Holoubek, 182, 194,
915, 917.
V. Raleigh, 195.
Swinney v. Booth, 375.
V. State, 877.
Sword V. Keith, 340, 341, 362, 887.
Sykes v. People, 887.
Symmes v. Brown, 16, 18.
Syndicate Ins. Co. v. Catchings,
813.
Taber v. Ferguson, 850.
V. Hutson, 387, 856.
Taff V. Hosmer, 853.
Taft V. Wildman, 292, 301.
Tagg V. Miller, 802, 807, 822, 826,
827, 830.
Tainter v. Lombard, 895.
Talbot's Ex'r v. Mearns, 152.
Talmage v. Smith, 788.
Tarbell v. Forbes, 8, 197, 452, 481,
550.
Tappan v. Burnham, 838.
Tate V. Parrish, 162.
V. State, 647.
Tathwell v. City of Cedar Rapids,
225.
Tatum V. Anderson, 854.
V. Com., 9.
V. Mohr, 531.
V. State, 697, 704.
Tayloe v. Old Dominion Steamship
Co., 301, 826.
Taylor v. Allen, 364.
v. Betsford, 425, 427.
V. Chicago, St. P. & K. C. Ry.
Co., 879.
City of Springfield, 299, 317.
Cox, 531, 534.
Felsing, 213.
Ford, 364.
Hillyer, 359.
V. Jones, 454, 457.
V. Kelly, 17, 18, 879, 890, 893.
"V. McNutt. 24.
V. Manley, 415, 417.
V. Missouri Pac. R. Co., 381.
V. Plummer, 332.
V. Randall, 828.
V. Scherpe & Koken Architec-
tural Iron Co., 81, 219.
V. Smith, 546.
V. State, 196, 232, 441, 780.
V. Territory, 64, 73, 751.
V. Wootan, 390, 910, 911.
Taylor, B. & H. Ry. Co. v. Taylor,
74, 152, 900.
Tays V. Carr, 349.
Teague v. Lindsey, 824.
V. State, 749.
Teal V. Terrell, 120.
Tedens v. Sanitary Dlst. of Chi-
cago, 914.
V.
V.
V.
V.
V.
TABLE OF CASES.
1013
[kefebences aee to pages.]
Teipel v. Hilsendegen, 12.
Telford v. Frost, 768.
Tempe v. St?ite, 846, 855. .
Templeton v. Green, 303.
V. People, 531-533.
V. State, 733, 892, 893.
Tentrook v. Brown, 287.
Tenbrooke v. Jahke, 352.
Ten Eyck v. Wltbeck, 184. '
Tennile v. Walshe, 802.
Terre Haute & I. R. Co. v. Egg-
mann, 905.
V. Jackson, 458.
V. Pruitt, 917.
V. Voelker, 389, 393.
Territory v. Baker, 356, 366.
V. Bannigan, 653.
V. Burgess, 681, 682, 733, 737.
V. Corbett, 366.
V. Duffleld, 281, 285, 288.
V. Evans, 195, 905.
V. Gay, 116.
V. Gertrude, 264, 285, 288, 851.
V. Hancock, 911.
V. Harper, 328, 332.
V. Hart, 807, 904.
V. Kay, 63.
V. Kennedy, 264, 285.
V. Lermo, 697.
V. Lopez, 657.
V. McAndrewg, 366.
V. McGinnis, 254.
V. Mahaffey, 405.
V. O'Donnell, 300, 799, 807.
V. O'Hare, 101, 122, 123.
V. Owings, 170.
V. Romero, 445.
V. Romine, 279, 510, 511.
V. Scott, 854, 860.
V. Whltcomb, 196.
Terry v. Buffington, 880, 902, 905.
V. Danville, M. & S. W. R. Co.,
295.
V. Shiveiy, 328, 332.
V. State, 359, 865, 878.
Tetbero-w v. St. Joseph & D. M. R.
Co., 317, 868.
Texas Cent. Ry. Co. v. Burnett, 112.
V. Hicks, 152.
V. Rowland, 879.
Texas Land & Loan Co. v. Watklns,
307.
V. Watson, 76..
Texas Midland R. Co. v. Brown, 367.
V. Tanner, 894.
Texas Telegraph & Telephone Co.
V. Seiders, 833.
Texas & N. O. Ry. Co. v. Crowder,
305.
Texas & P. Ry. Co. v. Beard, 302.
V. Brown, S02.
V. Casey, 302.
V. Cody, 317.
V. Durrett, 101, 114, 190, 367.
V. French, 184.
V. Gay, 307.
V. Gentry, 143.
V. Hassell, 361.
V. Lowry, 850.
V. McClane, 367.
V. Mitchell, 35L
V. Moore, 85.
V. Neill, 886, 904.
V. Nolan, 888.
V. O'Donnell, 308, 795, 796.
V. Padgett, 370.
V. Reed, 885.
V. Rhodes, 360.
V. Rice, 116.
V. Robinson, 307.
V. Scruggs, 182.
V. Tankersley, 217.
V. Taylor, 367.
V. Volk, 295.
V. Watts, 895.
V. White, 228.
V. Wineland, 876.
V. Wright, 887.
V. Wooldridge, 367.
Thackston v. Port Royal & W. C.
Ry. Co., 911.
Thatcher v. Mills, 800.
V. Rockwell, 902.
Thayer v. Davis, 199.
Thiede v. Utah, 826.
Thistle V. Frostburg Coal Co., 290.
Thon V. Pittard, 820.
Thomas v. Babb, 145.
V. Dickinson, 17.
V. Ingram. 210.
V. Loose, 301.
V. Presbrey, 816.
V. Paul, 199, 600, 602, 770.
V. State, 161, 183, 184, 194, 256,
297, 318, 544, 651, 698,699,
739, 758, 819, 897.
V. Sternheimer, 227.
T. Thomas, 96.
1014
TABLE OP CASES.
[eeferences are to pages.]
Thonas' Ex'r v. Thomas, 14.
Tnomason v. Odum, 5.
Thompson v. Anderson, 195.
V. Bertrand, 198.
V. Blanchard, 880.
V. Boden, 230.
V. Braiinin, 84.
V. Chumney, 358.
V. Com., 632.
V. Douglass, 228.
V. Duff, 205.
V. Force, 153, 155.
V. Ish, 532.
T. Johnson, 81, 115, 196.
V. Lee, 188.
V. Paige, 339.
V. Payne, 302.
V. People, 743, 802.
T. Richards, 14.
V. State, 167, 194, 243, 641, 699,
820.
V. Thompson, 12, 108, 376, 886.
V. Western Union Tel. Co., 301,
381, 820.
Thompson Sav. Bank v. Gregory,
194.
Thornhurgh v. Mastin, 301, 901.
Thorne v. McVeagh, 227.
Thornley r. State, 240, 779, 780.
Thornton v. State, 700, 701.
Thornton's Bx'rs v. Thornton's
Heirs, 342, 532.
Thorp V. Carvalho, 739.
V. Craig, 84.
V. Riley, 427, 795, 807.
Thorpe v; Missouri Pac. Ry. Co.,
871.
Thorwegan v. King, 360.
Thrap v. State, 838, 840, 849.
Thrasher v. Bverhart. 26.
V. Gillespie, 227.
V. Postel, 313, 809.
. V. State, 208, 320, 904.
V. Tyack, 823.
Thurmond v. State, 545, 672.
Thurston v. Lloyd, 889. '
V. Perry, 380.
Thuston V. State, 524.
Tibbetts v. Baker, 339.
Tichenor v. Newman, 151.
Tidwell V. State, 131.
Tiesler v. Town of Norwich, 379.
Tifield V. Adams, 339, 390.
Tlgerina v. State, 901.
Tillman v. Chadwick, 160.
Tillotson V. Ramsay, 531.
Timins v. Chicago, R. L & P. Ry.
Co., 221, 910.
Timm v. Bear, 74.
Timmerman v. Territory, 714.
Tinkham v. Thomas, 334.
Tinney v. Endicott, 331, 333.
V. New Jersey Steam Boat Co.,
535.
Tippett V. State, 367.
Tipton V. Trlplett, 216.
Titley t. Enterprise Stone Co., 879.
Tobin V. Gregg, 28.
V. Young, 527.
V. People, 357.
Toby V. Heidenheimer, 268.
Todd V. Danner, 238.
V. Fambro, 151.
Tolbert v. Burke, 465.
Toledo, A. A. & G. T. Ry. Co. v.
Dunlap, 475.
Toledo, P. & W. Ry. Co. v. Miller,
805, 838.
Toledo, St. L. & K. C. R. Co. v.
Mylott, 239.
Toledo, W. & W. Ry. Co. v. Brooks,
103.
V. Ingraham, 174, 905, 908.
T. Larmon, 913.
V. Shuckman, 915.
Toledo & W. R. Co. v. Daniels, 264,
266, 269, 279, 281.
Toler V. Keiher, 451, 453, 906.
V. State, 635, 692.
Tolmie V. Dean, 14.
Tomllnson v. Briles, 889.
V. Wallace, 296, 800, 808, 823.
Tompkins v. Eason, 857.
V. Gardner & Spry Co., 16, 18.
V. State, 713.
V. West, 865.
Toopa V. State, 338.
Tores v. State, 253.
Torey v. State, 613.
Torque v. Carrillo, 428.
Torr T. Torr, 917.
Torrence V. Graham, 295, 300.
Torres v. State, 494.
Totten V. Hicks, 909.
Toulmin v. Lesesne, 304.
Tower v. Haslam, 339.
Towle V. Ionia, Eaton & Barry Far-
mers' Mut. Fire Ins. Co., 891, 893.
TABLE OF CASES.
1015
[bkfeebnces are to pages.]
Town of EarlvlUe v. Carter, 389,
394.
Town of Fox v. Town of Kendall,
406.
Town of Leroy v. McConnell, 839.
Town of Noblesville v. Vestal, 328.
Town of Princeton v. Geiske, 847.
Town of Ridgefleld v. Town of
Fairfield, 364.
Town of Rushville v. Adams, 860.
Town of South Ottawa v. Perkins,
25.
Town of Vinegar Hill v. Busson,
298, 905.
Town of West Covington v. Schultz,
888.
Town of Westmore v. Town 'of
Sheffield, 321.
Towns V. Riddle, 305.
V. State, 304, 305.
Townsend v. Doe, 279.
V. State, 32, 35, 513.
Townsends v. Racine Bank, 855.
Township of Medina v. Perkins, 85.
Tozer v. Hershey, 528.
Trabing v. California Nav. & Imp.
Co., 166, 364.
Tracey t. State, 390, 395, 396, 801.
Tracey, Irwine & Co. v. Warren,
839.
Tracy v. Swartwout, 130.
Transatlantic Fire Ins. Co. v.
Bamberger, 886.
Trask v. People, 362, 363.
Travelers' Ins. Co. v. Clark, 240,
249.
V. Parker, 789.
Traver v. Spokane St. Ry. Co., 197.
Traylor v. Townsend, 246, 368, 411.
Treadway v. State, 644, 645.
Treat v. Bates, 541.
Trentman v. Wiley, 198, 273, 274.
Trexler v. Greenwich Tp., 8»9.
Trezevant v. Rains, 384, 387.
Tribble v. Frame, 362.
Trice v. Rose, 848.
V. State, 256.
Trinity County Lumber Co. v. Den-
ham, 347, 351.
Trinity & S. Ry. Co. v. Lane, 84.
v. Schofield, 150, 302.
Triolo V. Foster, 72, 784.
Trippett v. State, 268.
Trittipo V. Beaver, 364.
Trogdon v. State, 379, 912.
Trott V. Chicago, R. I. & P. Ry. Co.,
220.
V. Wolfe, 603.
Trout V. McQueen, 184.
Truckee Lodge No. 14, I. 0. 0. P., T.
Wood, 878.
Trufant v. White, 154, 158.
Trumble v. State, 441.
Trustees of First Baptist Church T.
Brooklyn Fire Ins. Co., 381.
Trustees of Schools v. McCormlck,
389, 392, 393.
Tryon v. Oxley, 200.
Tubb V. Madding, 99.
Tubbs V. Dwelling House Ins. Co.,
889
Tuberson v. State, 482, 495.
Turbeville v. State, 659, 849.
Tuck V. Singer Mfg. Co., 897.
Tucker v. Hamlin, 369.
V. Peaslee, 381.
V. Smith, 302.
V. State, 13, 743, 745.
V. Whitehead, 160.
V. Salem Flouring Mills Co.,
814.
V. United States, 808.
Tuckwood V. Hanthorn, 904.
Tufts V. Hatheway, 609.
V. Seabury, 865.
TuUidge v. Wade, 465.
Tully V. Despard, 329, 331, 334.
Tumlin v. Parrott, 884.
Tupper V. Kilduff, 822, 853, 859.
V. Huson, 360.
TurnbuU v. Richardson, 532, 541.
Turpin's Heirs v. McKee's Bx'rs,
84.
Turner v. Com., .638, 639.
V. Bllicott, 232, 233.
V. First Nat. Bank of Madisoh^
20.
V. Ft. Worth & D. C. Ry. Co.,
888
V. Foxali, 417, 418.
T. Grobe, 8, 64, 70, 87.
V. Lambeth, 415, 417.
V. Locy, 196.
V. Loler, 7, 232.
V. O'Brien, 76.
V. People, 316.
V. St. Louis & S. F. Ry. Co., 6,
V. State, 146, 387.
1016
TABLE OF CASES.
R. Co.,
Turner v. Yates, 14.
Tutchin's Case, 36.
Tuttle V. Walker, 349.
Twining v. Martin, 902.
Twomey v. X,innelian, dvz.
Tyler v. Chesapeake & O
102.
V. Larimore, 299.
V. Stevens, 882.
V Third Ave. R. Co., 506.
Tyler S. B. Ry. Co. v. Hitchins, 367.
Tyrree v. Parham's Ex'r, 401, 801.
Tyson v. Rickard, 5.
V. Shueey, 344.
V. Tysoa, 10.
U.
Udderzook v. Harris 889.
Uhe V. Chicago, M. & St. P. Ry. Co.,
828.
Uhl V. Bingaman, 915, 917.
V Harvey, 902.
V. Robison, 200, 227.
Ulmer v. State, 482.
Ulrich V. People, 380.
Umhenhauer v. State, 404.
Underhill v. New York & H. R. Oo.,
11.
V. Pomeroy, 300.
V Vandervoort, 20.
Underwood v. American Mortgage
Co., 78.
V. Coolgrove, 233.
V. Hart, 338, 340.
V. State, 743, 752.
Unger v. State, 741.
Union Bank v. Call, 151.
V. Heyward, 19.
V. Stone, 609.
Union Bank of Maryland v. Kerr,
359
Union Bank of Trenton y. First
Nat. Bank of Milan, 170.
Union Cent. Ufe Ins. Co. v. Huyck,
188
Unioii Mut. Life Ins. Co. v. Buchan-
an, 205, 726, 727, 858.
Union Pac. Ry. Co. v. Milliken, 170.
V. O'Brien, 160.
V. Shelhy, 886.
Union Ry. & Transit Co. v. Kalla-
her, 396.
Union Sav. Bank & Trust Co. v.
WlHa 198
[befekences abb to pages.]
Union Stock-Yards & Transit Co.,
V. Goodman, 232.
v. Monaghan, 161.
Union St. Ry. Co. v. Stone, 282.
United Railways & Electric Co. ol
Baltimore City v. Seymour, 365.
United States v. Anthony, 13.
v. Babcock, 483, 485.
V. Battiste, 33.
V. Breitling, 197, 830.
V. Burnham, 96.
V. Chaves, 300.
V. ChristofCerson, 902.
V. De Amador, 300.
V. De Lujan, 300.
V. Fourteen Packages of Pins,
295.
V. Fullerton, 13.
V. Gilbert, 33, 42, 332, 333.
V. Hamilton, 860.
V. Harper, 663.
V. Harries, 485.
V. Hodge, 19.
V. Hough, 341.
V. Jackson, 650, 656, 662.
V. Johnson, 650, 662.
V. Jones, 159, 669.
V. Keller, 42, 662.
V. King, 650.
V. McBride, 364.
V. Metropolis Bank, 338.
V. Morgan, 839.
V. Morris, 32, 35, 42.
V. Neverson, 482, 486.
V. Rindskopf, 844.
V. Shive, 42.
V. Smith, 590.
V. Sykes, 483, 485-487.
V. Taylor, 13.
V. Tenney, 902.
V. Van Leuven, 489.
V. White, 417.
v. Wiggins, 741.
V. Wilson, 42.
V. Wright, 655, 656.
V. Zes Cloya, 672.
United States Exp. Co. v. Back-
man, 879.
V. Jenkins, 696.
V. Kountze, 303.
United States Home & Dower Ass'n
V. Kirk, 382.
United States Lite Ins. Co. v. Les-
ser, 7, 340, 383.
TABLE OP CASES.
1017
[bbferences aee to pages.]
Unruh v. State, 518, 526, 851, 857.
Unsell V. State, 199.
Upchurch v. State, 698.
Updike V. Armstrong, 829.
Upson V. Raiford, 886.
Upstone V. People, 210.
Upton V. Paxton, 308, 322.
Urias v. Pennsylvania R. Co., 572.
Urket V. Coryell, 199.
Urquhart v. Leverett, 339.
Utter V. Vance, 469.
Vail V. Kansas City, C. & S. Ry.
Co., 891.
Vale V. People, 576.
Valentine v. Kelley, 425.
Valley Mut. Life Ass'n v. Teewalt,
837.
Van Akin v. Caler, 300.
Van Alstyne v. Houston & T. C. Ry.
Co., 302.
Vanarsdale v. Hax, 89, 90, 98.
Van Bergen v. Eulberg, 183.
Van Brown v. State, 644.
Van Buskirk v. Day, 905.
Vancleave v. Clark, 849.
Vanderbilt v. Brown, 340.
Vandeventer v. Ford, 767, 771.
Van Doren v. Jelliffe, 807.
Van Duzor v. A^len, 7.
Van Hook v. Walton, 9.
Vanlandingham v. Huston, 338.
Van Pelt v. City of Davenport, 812.
Van Ness v. Pacard, 96.
Vann v. State, 650.
Vanslyck v. Mills, 169.
Van Valkenburg v. Huff, 150.
Vanvalkenberg v. Vanvalkenberg,
879, 881.
Van Vleet v. Olin, 449.
Vanwey v. State, 287, 288, 827.
Varnum v. Taylor, 812.
Vasse V. Smith, 838.
Vaughan v. Com., 732.
V. Porter, 322, 328, 337, 338,
348.
V. State, 491, 577, 579, 698, 699,
908.
Vaughn V. Ferrall, 828.
V. Smith, 16.
Veal V. State, 439.
Veatch v. State, 505, 896.
Vedder v. Fellows, 6.
Venable v. McDonald, 18.
V. State, 333.
Veneman v. McCurtain, 355.
Venine v. Archibald, 226.
Verdery v. Savannah, F. & "W.. Ry.
Co., 821.
Verdier v. Verdier, 101.
Verholf v. Van Houwenlengen, 821.
Vermilyea v. Palmer, 804.
Vernon v. Cornwell, 316.
Veseley v. Engelkemeier, 382.
Vlckers v. Kennedy, 899, 900.
Vicksburg & M. R. Co. v. Putnam,
94.
Vider v. O'Brien, 821, 822.
Vigus v. O'Bannon, 214.
Village of Culbertson v. Holliday,
101.
Village of Cullom v. Justice, 389,
397.
Village of Evanston v. Gunn, 908.
Village of Fairbury v. Rogers, 5,
379.
Village of Hyde Park v. Washing-
' ton Ice Co., 298, 316.
Village of Mankato v. Meagher,
340.
Village of Monroeville v. Root, 267,
286, 287.
Village of Sheridan v. Hibbard, 145.
Village of Warren v. Wright, 153.
Vincent v. Huff, 18, 359.
V. Stinehour, 96.
Violett V. Patton, 338.
Virgie v. Stetson, 239.
Virginia Cent. R. Co. v. Sanger,
159.
Viser v. Bertrand, 321, 379.
Voelckel v. Banner Brewing Co.,
825.
Vogg V. Missouri Pac. Ry. Co., 897.
Voght V. State, 285.
Volk V. Roche, 152, 231, 235.
Vollmer v. State, 445.
Voorheis v. Waller, 307.
Vosburgh v. Teator, 854.
Vroman v. Rogers, 64, 65.
W.
W. B. Grimes Dry-Goods Co. v,
Malcolm, 457.
Wabash R. Co. v. Biddle, 480, 481,
510, 515.
i018
TABLE OF CASES.
[eepekbnces are to pages.]
Wabash R. Co. v. Henks, 152, 915.
V. Stewart, 183, 239, 246.
Wabash, St. L. & P. Ry. Co. v.
Rector, 226.
V. Shacklet, 167, 891.
Wabash & W. Ry. Co. v. Morgan,
906.
Waddingham v. Hulett, 190, 208.
Wade V. Guppinger, 856.
v. Hardy, 188.
V. Ordway, 424, 430, 432, 434.
V. State, 434.
Wadhams & Co. v. Inman, Poulsen
& Co., 873, 876.
Wadsworth v. Dunnam, 63.
Waechter v. State, 320, 349.
Wagar v. Peak, 833.
Wager v. Barbour, 880.
Waggoner v. State, 495.
Wagner v. Buffalo & R. Transit
Co., 366.
V. Bgleston, 16.
V. State, 538.
Wahlgren v. Market St. Ry. Co.,
207, 341, 364.
Wait V. Agricultural Ins. Co., 11. '
Wakeman v. Lyon, 827.
Walcott V. Keith, 381.
Waldie v. Doll, 328.
Wales V. Miner, 906.
V. Pacific Electric Motor Co.,
818.
Walker v. Brown, 311, 895.
V. Camp, 205.
V. City of Kansas, 84.
V. Collier, 905, 911.
V. Collins, 885.
V. Com., 741.
V. Devlin, 340.
V. Devlin's Lessee, 34C.
V. Gilbert, 338.
V. Haggerty, 565.
V. Harvey, 503.
V. Humbert, 301.
V. Johnson, 406.
V. Laney, 132.
V. Nix, 64, 70.
V. State, 48, 53, 621, 622, 624,
625, 628, 824, 903.
v. Stetson, 391.
V. Turner, 822.
V. Wait, 303, 321.
V. Walker, 381, 820.
V. Windsor Nat. Bank, 824,825.
Walker v. Wootten, 81.
Walkup V. Pratt, 726.
Wall V. Goodenough, 69, 174.
V. State, 113, 276, 536.
Wallace v. Mattice, 690.
V. Nodine, 909.
V. Robb, 852, 856.
V. Williams, 820.
Waller v. Hannibal & St. J. R. Co.,
829.
Wallich V. Morgan, 907.
Walrath v. State, 196.
Walsh V. Aetna Life Ins. Co., 83.
V. Allen, 799.
V. St. Louis Drayage Co., 262,
267.
Walter v. Alexander, 196.
V. Uhl, 852.
Walter A. Wood Mowing & Reap-
ing Mach. Co. V. Bobbst, 232.
Walters v. Hutchins' Adm'x, 857.
V. State, 635.
Walthelm v. Artz, 28.
Walton V. Hinnan, 404.
Wampler v. State, 699.
Wamsley v. Atlas Steamship Co.,
196.
Wannack v. City of Macon, 104.
Wantland v. State, 697, 704.
Warbasse v. Card, 846, 852, 857.
Ward V. Albemarle & R. R. Co., 329,
332, 820. ,
V. Blackwood, 860.
V. Churn, 348.
V. Cochran, 451, 902.
V. Henry, 208, 210.
V. Lee, 300.
V. McCue, 212.
V. State, 681, 809, 839.
V. United States, 76.
V. Ward, 146, 316.
Warden v. City of Philadelphia,
310.
Warder v. Henry, 253, 254.
Ware v. Nesbit, 808.
Warlick v. Plonk, 454-456.
Warner v. Myrick, 299, 304.
V. State, 298.
Warnick v. Grosholz,,28.
Warren v. Dickson, 905, 912.
V. Smith, 892.
V. State, 320, 326, 383, 384.
Warrick v. Rounds, 829.
Warson v. McEIroy, 152.
TABLE OP CASES.
1019
[eeferences aee to pages.]
Warson v. Race, 328.
Washburn v. Milwaukee & L. W.
R. Co., 475.
V. Tracy, 360.
Washington v. State, 43, 357, 441.
Washington County Water Co. v.
Garver, 197.
Washington Life Ins. Co. v. Haney,
843, 850.
Washington Mut. Ins. Co. v. Mer-
chants' & Manufacturers' Mut.
Ins. Co., 151.
Washington South. Ry. Co. v.
Laoey, 27.
Washington & G. R. Co. v. Glad-
mon, 77, 908.
V. Varnell, 810, 820.
Washington & N. 0. Telegraph Co.
V. Hohson, 826.
Wason V. Rowe, 14.
Wasson v. Palmer, 167,169,915,916.
V. State, 292, 320.
Wastl V. Montana Union R. Co.,
526, 527, 566, 600, 601.
Waters v. Shafer, 210.
V. Spencer, 886.
Waters' Lessee v. Riggin, 81, 82.
Waters-Pierce Oil Co. v. Cook, 188.
V. Davis, 115.
Watterson v. Puellhart, 369.
Watertown Bank & Loan Co. v.
Mix, 425, 427.
Watkins v. State, 291, 743.
V. Wallace, 773.
Watson V. Allen, 884.
V. Blaine, 15, 22.
V. Com., 387, 394, 486, 624, 880.
V. Damon, 83.
V. Gray, 64.
V. Musick, 175.
V. People, 438, 439.
V. Race, 334.
V. State, 491, 496.
V. Union Iron & Steel Co., 408.
V. Watson, 904, 911.
Watt V. People, 663.
Watts V. Blalock, 66.
V. Coxen, 278.
V. Southern Bell Telephone &
Telegraph Co., 89, 90.
Waul V. Hardie, 347.
Wayne v. Winter, 592.
Waynesboro Mut. Fire Ins. Co. v.
Creaton, 353.
Weamer v. Juart, 301.
Wear v. Duke, 173, 871.
Weathersby v. State, 698.
Weaver v. Hendrick, 189.
V. Sanger, 26.
V. People, 672.
Webb v. Fisher, 824.
V. Portland & K. R. Co., 901.
V. Robinson, 204, 450.
V. State, 707.
V. Wight & Weslosky Co., 198,
876, 905.
Webber v. Brown, 208.
V. Dunn, 299.
V. Read, 897, 900.
Weber v. Kansas City Cable Ry.
Co., 815.
V. McClure, 199.
V. Wiggins, 813.
Webster v. O'Shee, 188.
V. Sibley, 239.
Webster College v. Tyler, 202,
Weekes v. Cottingham, 83.
Wehle V. Haviland, 803.
Weiden v. Brush Electric Light
Co., 889, 890.
Weil V. Nevitt, 63.
V. State, 726.
Weilandy v. Lemuel, 447. -
Weimer v. Bunbury, 390, 398.
Weinburg v. Somps, 297.
Weir V. McGee, 784.
Weir Plow Co. v. Walmsley, 857.
Weis V. Dittman, 227.
Weisenberg v. City of Appleton,
303, 823. ■
Welsenfleld v. McLean, 101.
Weiss V. Bethlehem Iron Co., 226.
Welch V. Adams, 381.
V. Butler, 878.
V. Hannibal & St. J. Ry. Co.,
167.
V. Miller, 881.
V. Ware, 2, 3, 903.
Welcome v. Mitchell, 825.
Weller v. Hawes, 870.
Welling V. Judge, 352.
Wells V. Barnett, 339, 348.
V. Burlington, C. R. & N. R.
Co., 835.
V. Clements, 78, 101, 114.
V. Higgins, 822.
V. Houston, 189, 195, 918.
V. Ipperson, 389, 397.
102a
TABLE OF CASES.
[ebfbbences aee to pages.]
Wells V. Leek, 531, 537.
V. Morrison, 150, 298, 306.
V. Prlace, 196, 838.
V. State, 199, 720.
V. Turner, 359, 362, 363, 394.
V. Washington's Adm'r, 360.
Wells, Fargo & Co. v. Preston, 287.
Welstead v. Levy, 7, 86, 150, 286,
824, 877, 910.
Wendell v. Moulton, 882.
Wendover v. Baker, 448.
Wenger v. Barnhart, 883.
Wenning v. Teeple, 169, 461.
Wenrich & Co. v. Heffner, 727.
Werkheiser v. Werkheiser, 893.
Werner v. Jewett, 806.
Wertz V. May, 301.
Wesley v. State, 101, 585, o88.
Wessels v. Beeman, 92.
West V. Banlgau, 122.
V. Black, 104.
V. Blackshear, 826.
V. Chicago & N. W. Ry. 245.
V. Milwaukee, L. S. & W. Ry.
Co., 915.
V. Moody, 217.
V. Smith, 23, 24.
V. State, 268, 630, 889.
West Chicago St. R. Co. v. Dough-
erty, 791.
V. Estep, 515.
V. Kromshinsky, 911.
V. Martin, 805, 889.
V. O'Connor, 766.
V. Raftery, 509, 564, 565.
West Memphis Packet Co. v. White,
211.
Westhrook v. Aultman, Miller &
Co., 365.
V. Howell, 529.
Westbury v. Simmons, 122, 233.
Westchester Fire Ins. Co. v. Earle,
242, 340.
Westcott V. Garrison, 300.
Western Assur. Co. of Toronto v.
Polk, 814.
Western Coal & Min. Co. v. Ingra-
ham, 811, 910.
Western Home Ins. Co. v. Thorpe,
183.
Western Ins. Co. of Cincinnati v.
Tobin, 820.
Western Union Tel. Co. v. An-
drews, 376.
Western Union Tel. Co. v. Burgess,
183.
' V. Buskirk, 298, 914.
y. Carter, 375.
V. Cooper, 84.
V. Getto-MoClung Boot & Shoe
Co., 338.
V. Linn, 74.
V. Lowrey, 898.
V. Newhouse, 452.
V. Reynolds, 883.
V. Tobin, 194.
V. Young, 914.
Weston V. Brown, 532.
V. Higgins, 208.
Wetherby v. Foster, 199, 334.
Wettengel v. City of Denver, 265,
Wetzell V. Wagoner, 907.
Weybright v. Fleming, 64, 804.
Weyburn v. Kipp, 64.
Weyrich v. Foster, 850.
V. People, 153.
Whalen v. Chicago, R. I. & P. Ry.
Co., 224.
V. St. Louis, K. C. & N. Ry.
Co., 916.
Wharton v. Littlefield, 890.
V. State, 422, 472, 474, 713.
Wharton's Case, 36, 37.
What Cheer Coal Co. v. Johnson,
890.
Whatley v. State, 685.
Wheat V. Brown, 261, 262, 266, 282.
Wheatley v. West, 278.
Whedon v. Knight, 913.
Wheelan v. Chicago, M. & St. P. Ry.
Co.. 298.
Wheeler v. Joy, 813, 819.
V. KOnst, 360.
V. Metropolitan Mfg. Co., 799.
V. Moody, 200.
V. Schroeder, 8.
V. State, 48, 51, 54, 255-257,
480, 594, 780.
V. Sweet, 430, 807.
V. Thomas, 454.
V. Wallace, 412.
Wheeler & Wilson Mfg. Co. v.
Walker, 822, 903.
Wheelwright v. Aiken, 544.
Whelan v. Georgia Midland & G. R.
Co., 816.
Whetton v. Clayton, 831.
Whilden v. Merchants' & Planters'
Nat. Bank, 162.
TABLE OP CASES.
1021
[REFEEENCES ARE TO PAGES.]
Whitaker v. Ballard, 197.
V. Parker, 533.
V. PuUen, 199.
T. State, 802.
Whitcomb v. Town of Fairlee, 80,
157.
White V. Amrhien, 332.
V. Barber, 823.
V. Beem, 903.
V. Byam, 899.
V. Campbell, 899.
V. Chaffin, 896.
V. Clark, 300, 808.
V. Cook, 551.
V. Craft, 227.
V. Dinkins, 236.
V. Fitohburg R. Co., 531.
V. Fulton, 415.
V. Gale, 774.
V. Goodrich Transp. Co., 855.
V. Gregory, 379.
V. Hand, 295, 297.
V. Jackson, 856.
V. Lowenberg, 556.
V. McCracken, 297.
V. Maxcy, 554.
T. New York, C. & St. L. R.
Co., 547, 906.
V. Ross, 885.
V. State, 110, 320, 390, 493, 560,
563, 564, 646, 682, 698, 699,
802, 805.
V. Stillman, 85.
V. Territory, 122, 524.
V. Thomas, 150, 204, 882.
V. Van Horn, 66.
V. White, 7.
Whiteford v. Burckmyer, 339, 342,
361, 853.
V. Munroe, 18.
Whitehead & A. Mach. Co. v. Ryder,
838.
Whitesides v. Hunt, 903.
V. State, 670.
Whitewater R. Co. v. Bridgett, 898.
Whitfield V. Westbrook, 164.
Whiting V. City of Kansas, 364,
847, 854.
Whitley v. State, 80.
Whitlock V. Com., 438, 440.
Whitlow y. State, 130.
Whitman v. Johnson, 803.
V. Keith, 193.
T. Morey, 366, 381, 455.
Whitman v. Steiger, 195.
Whitmore v. Supreme Lodge, K. &
L. of H., 871.
Whitner v. Hamlin, 198, 200.
Whitney v. Clifford, 776.
V. Cook, 5, 6, 101.
V. Olmstead, 827.
Whitset V. Chicago, R. I. & P. Ry,
Co., 184, 195.
Whittaker v. Com., 365.
V. Delaware & H. Canal Co.,
803.
V. Perry, 382.
Whitton V. State, 738.
Wiborg V. United States, 84.
Wickes V. Baltimore & 0. R. Co.,
830.
V. Clutterbuck, 898.
Wickham v. State, 900.
Wicks V. Ross, 853.
V. State, 488.
Widner v. State, 263, 281.
Wieting v. Town of Millston, 155.
Wiggins V. Burkham, 856.
V. Downer, 425, 430.
V. Guthrie, 308.
V. McGimpsey, 895, 897.
Wigton V. Smith, 188.
Wilbur V. Stoepel, 216.
V. Wilbur, 168.
Wilcox V. Chicago, M. & St. P. R.
Co., 183.
V. Henderson, 775.
V. McCune, 806, 838, 839.
V. State, 110.
Wilcox, Gibbs & Co. v. Henderson,
767.
Wilcoxen v. Logan, 381.
Wildey v. Crane, 232, 765.
Wilds V. Bogan, 896.
Wiles V. Trustees of Phlllippi
Church, 885.
Wiley V. Doe, 856.
V. Keokuk, 81, 82.
V. Man-a-to-wah, 81.
V. State, 619, 624, 626.
Wilhoyte v. Udell, 158.
Wilkerson v. Corrigan Consol. St.
Ry. Co., 847, 854.
V. State, 368, 494, 520, 621.
Wilkes V. Wolback, 899.
Wilkie V. Raleigh & C. P. R. Co.,
203, 369.
Wilkinson v. Applegate, 856.
1022
TABLE OP CASES.
[eefebencbs ake to pages.]
Wilkinson v. Johnson, 302, 307.
V. St. Louis Sectional Dock
Co., 417, 422.
T. Searey, 108.
Willard v. Petitt, 805.
V. Press Pub. Co., 917.
V. State, 696.
V. Sumner, 16.
Wllley V. Catling, 242.
V. Inhabitants of Belfast, 299.
T. Norfolk S. R. Co., 317, 854.
Williams v. Andrew, 198.
V. Barkstiale, 849, 856, 887.
V. Barrett, 812.
V. Birch, 381.
V. Carr, 89.
V. City of Grand Rapids, 887.
V. Com., 330, 334, 417-419, 812.
V. Conger, 885.
V. Connor, 84.
V. Dickenson, 99, 104.
V. Gunnels, 349.
V. John Davis Co., 882, 905.
V. Johnston, 817.
V. Mellor, 195.
V. Miller, 333, 349.
V. Norwood, 360.
■ V. People, 613, 732.
V. St. Louis & S. F. Ry. Co.,
410.
V. Shackelford, 83, 175.
V. Shelden, 6.
V. Southern Pac. R. Co., 172,
188, 800, 805.
V. State, 43, 47, 48, 208, 268,
291, 319, 323, 383, 387, 438,
439, 441, 488, 519, 532, 537,
621, 622, 659, 668, 824, 830.
V. Waters, 14.
v. Woods, 14.
Williamson v. Chicago, R. I. & P.
R. Co., 815.
V. Nabers, 379.
V. State, 800.
V. Tobey, 340.
V. Tyson, 227.
Willingham v. Macon & B. Ry. Co.,
19.
Willis V. Branch, 78.
V. Bullitt, 363.
V. Hudson, 64.
V. Kirbie, 865, 890.
V. Lockett, 303.
V. McNeill, 376.
Willis V. Oregon Ry. & Nav. Co.,
197.
V. State, 266, 279, 281, 652, 821,
847, 854, 860.
V. Whitsitt, 514.
Willits V. Chicago, B. & K. C. Ry.
Co., 189.
Wills V. Cape Girardeau S. W. R.
Co., 173.
V. Tanner, 330.
Willson'v. Whitfield, -20.
Wilmarth v. Knight, 29.
Wilmington Coal Min. & Mfg. Co.
V. Barr, 841, 843, 849, 852.
Wilmot V. Howard, 328, 337.
Wilson V. Atlanta & C. A. Ry. Co.,
64, 852, 863.
V. Board Education of Lee's
Summit, 21.
V. Calvert, 849, 855.
V. Carson, 26.
V. Dickell, 160.
V. First Presbyterian Church
of Savannah, 349.
V. Fuller, 843, 850, 853.
V. HotchkiSs' Estate, 250.
V. Kohlheim, 390, 391, 897.
V. Smith, 360, 726, 729.
V. Southern Pac. R. Co., 915.
V. State, 80, 149, 151, 209, 297,
417, 423, 434, 435, 439, 691,
692, 698, 749, 750, 761, 878,
885.
V. Town of Granby, 262, 265.
V. Trafalgar & Brown Co.
Gravel Road Co., 879, 881.
V. White, 239, 241, 408.
V. Williams' Heirs, 175.
Wilson Sewing Mach. Co. v. Bull,
385.
Wimbish v. Hamilton, 824.
Wimer v. Allbaugh, 298.
Wlnchell v. Hicks, 300, 305, 315.
Winchester Wagon Works & Mfg.
Co. V. Carman, 888, 906.
Windham v. State, 749.
Winfrey v. State, 268, 779, 782.
Winkler v. State, 43.
Winn V. Patterson, 338.
V. State, 303, 488, 649.
V. Village of Rutland, 200.
Winne v. Brundage, 329, 333.
Winslow V. State, 349, 861.
Winsor v. Maddock, 382.
Winter v. Bandel, 238, 241.
TABLE OF CASES.
1023
rEETERENCES ABB TO PAGES.]
Winter v. Norton, 9.
Wintermute v. Torrent, 887.
Wlnterson v. Eighth Ave. R. Co.,
864.
Wintz V. Morrison, 85, 86, 116.
Wisdom V. People, 483, 484, 631.
V. Reeves, 154, 157, 195.
Wiseman v. Cornish, 501.
V. Penland, 137.
Wiser V. Chesley, 257.
Wisner v. Brady, 839.
V. Davenport, 11, 84, 363.
Wissler v. Hershey, 842.
Witcher v. Watkins, 831, 832.
Witt V. Repey, 302.
V. State, 864, 866.
Witz V. Spencer, 849.
Wohlford V. People, 47.
Wolcott V. Heath, 111.
, V. Reene, 344.
Wolf V. Wolf, 170.
Wolfe V. Pugh, 888.
V. State, 544.
WoUf V. Van Housen, 773.
Wolfley V. Rising, 843.
Womack v. Circle, 292, 293, 360,
392.
Wood v. Chambers, 909.
V. Deutchman, 100.
v. Pigard, 314.
V. Ison, 415.
V. Kelly, 197.
V. MoClure, 828.
V. McGuire's Children, 330.
V. Ostram, 883.
V. People, 436, 437.
V. Porter, 81, 802, 865, 868.
V. State, 329, 336, 404, 513, 760,
761, 821.
V. Steamboat Fleetwood, 170.
V. Steinau, 64.
V. White, 159.
V. Willard, 467.
, V. Wylds, 884.
Woodbury v. State, 226, 228.
Woodman v. Chesley, 19, 901.
V. Davis, 898.
Woodruff v^ Hensley, 217, 220, 285.
V. Garner, 840.
V. King, 417, 418, 421.
Woods V. Berry, 807, 812, 819, 822.
V. Board of Com'rs of Tipton
Co., 906.
V. State, 824.
Woods V. Trinity Parish, 198.
Woodson Machine Co. v. Morse,
765.
Woodward v. Begue, 896.
V. Oregon Ry. & Nav. Co., 190.
V. Stein, 850.
Woody V. Dean, 101, 132.
Wooley V. Lyon, 227.
Woollen V. Whitacre, 453, 518.
V. Wire, 451-453.
Woolley V. Louisville, N. A. & V.
Ry. Co., 902.
V. State, 840, 857.
Wooton V. Seigel, 821.
V. State, 364, 730.
Woofers v. King, 362, 363.
Wootters v. Hale, 232.
Worden v. Humeston & S. Ry. Co.,
145.
V. Salter, 887.
Work V. State, 296, 439.
Workingmen's Banking Co. v. Blell,
12, 28.
Works V. Stevens, 103.
Worley v. Hicks, 65, 76.
V. Moore, 868, 896, 902.
Worth V. McConnell, 887.
Worthing v. Worthing, 784.
Worthington v. Mason, 341, 823,
838.
V. Tormey, 798, 800.
Wragge v. South Carolina & G. R.
Co., 861.
Wray v. Carpenter, 797, 805, 826.
V. Spence, 308.
Wreggitt V. Barnett, 914.
Wright V. Bell, 242.
V. Boiling, 5.
V. Brosseau, 409, 410.
V. Carpenter, 474, 475.
V. Central Railroad & Banking
Co., 130, 136, 139.
V. Cincinnati St. Ry. Co., 296.
V. City of Fort Howard, 65.
V. Com., 513.
V. Denham, 823.
V. Fanoler, 903.
V. Fonda, 25, 188, 190,
V. Gillespie, 471, 807.
V. Gully, 856.
V. Hardy, 85.
V. Nipple, 914.
V. Paige, 338, 340.
V. State, 297, 749, 892.
1024
TABLE OF CASES.
[bbfeeences aee to pages.]
Wright V. Towle, 81.
V. Welch, 195.
Wustland v. Potterfleld, 826.
Wyatt V. Citizens' Ry. Co., 227.
V. Herring, 886.
V. Stewart, 836.
Wyatt's Adm'r v. Steel, 890, 893.
Wyley v. Stanford, 116.
Wylly V. Gazan, 2^6.
Wyman v. Hart, 300, 305, 817.
V. Whlcher. 155, 157. 597.
Yale V. Curtiss, 825.
V. Seeley, 90, 97.
Yarhorough v. Tate, 115, 208.
V. Weaver, 341, 348.
Yardley v. Cuthbertson, 390, 393,
833.
Yates V. Bachley, 813.
V. George, 857.
■ V. Kinney, 267, 282, 283, 831.
Yeldell v. Shinholster, 333, 335, 420.
Yelm Jim v. Territory, 837.
Yetter's Estate, In re, v. Zorick,
764.
Yoakum y. Dunn, 111.
V. Kelly, 368.
Y. Mettasoh, 462, 799.
Yocum V. Town of Trenton, 860.
York V. Maine Cent. R. Co., 117.
York Park Bldg. Ass'n v. Barnes,
292-294, 297, 300, 320.
Young V. Burlington Wire Mattress
Co., 273.
V. Clegg, 908, 914.
V. Crawford, 254.
V. Jeffreys, 28, 29.
V. Keller, 299.
V. Gentis, 510, 511, 575.
V. Merkel, 158.
V. Ridenbaugh, 158.
V. State, 379, 386, 596.
V. Youngman, 819.
Youngblood v. South Carolina & O.
R. Co., 196.
Yundt V. Hartrunft, 905, 911.
Z.
Zehner v. Kepler, 465.
Zeller's Lessee v. Bokert, 840, 844.
Zenor v. Johnson, 23, 25, 527.
Zent V. Watts, 917.
Zimmerman v. Hannibal & St. J. R.
Co., 147.
V. Klingeman, 807.
V. Knox, 208.
V. State, 363.
Zollicoffer r. State, 492, 494.
Zust V. Smltheimer. 427.
INDEX.
[eeperences are to sections.]
A.
ABSENCE,
of party or counsel at giving of Instruction, 182-185.
ABSENCE OF EVIDENCE,
presumption from failure to produce evidence within power at
party, 273, 274.
of party to testify, 275-277.
reasonable doubt arising from, 300.
ABSTRACT INSTRUCTIONS,
Impropriety of, 83, 86.
illustration of, 87.
necessity of applying law concretely to evidence, 92.
when ground for reversal, 387.
ACCOMPLICE,
cautionary instructions as to credibility of, 215-222.
ACCURACY,
necessity that Instructions be accurate, 67.
effect of verbal inaccuracies, 64.
ADDITIONAL INSTRUCTIONS,
right and duty to give, 172-178.
manner of giving, 179, 181.
presence of counsel, 182-185.
6i— Ins. to Juries.
1026 INDEX.
[EEFEBENCES AKE TO SECTIONS.] ,
ADMISSIONS,
inBtructlons as to, 231-237.
instruction as to, held argumentative, 69.
ADMITTED FACTS,
assumption of, 36.
AFFIDAVITS,
construction of, for courts, 9.
AGENCY,
question of, for jury, 4.
AGREEMENT,
instructions as to duty of jury to agree, 199-202.
AIDER BY VERDICT,
cure of erroneous instructions by verdict, 390.
ALIBI,
propriety or necessity of instructions, 278.
instructions tending to discredit defense, 279, 280.
application of doctrine of reasonable doubt, 281.
what instructions proper where burden of proof Is on defend-
ant, 282.
where burden of proof is not on defendant, 283.
Instruction as to unsuccessful attempt to establish, 284.
instruction held not to comment on weight of evidence, 47.
instruction as to positive and negative testimony not applica-
ble, 257.
ALTERATION OF CONTRACT,
question of, for jury, 11.
AMBIGUITY.
in instructions, 71.
AMERICA,
rule In, as to power of jury to disregard Instructions of court In
criminal cases, 19.
1027
INDEX.
[REFERENCES ABE TO SECTIONS.]
ANSWERING REQUESTS,
manner of answering, in general, 142.
marking, 143, 144.
APPELLATE REVIEW,
necessity of objections and exceptions, 362-369.
requisites of record to present error, 372-374.
interpretation of instructions by appellate court, 382-385.
presumption that facts assumed were undisputed, 37,
presumption against existence of error, 375, 376.
presumption of prejudice from error, 377, 378.
of instructions given by consent, not reviewed, 381.
instructions given or refused on party's own motion not re-
viewed, 379. See "Harmless Error."
APPLICATION TO EVIDENCE,
instructions assuming facts not shown, 33.
necessity of basing instructions on evidence, S3, 86, 87.
ARGUMENT,
comments on argument of counsel, 356-358.
instruction as to doubt raised by, 297.
allowing counsel to give version of testimony after he has ar-
gued the case, 59.
ARGUMENTATIVE INSTRUCTIONS,
Impropriety of giving, 68.
illustrations of, 69.
not ground for reversal, 70.
not cured by instruction that Jury are exclusive judges of facts,
49.
ARKANSAS,
practice with regard to summing up the evidence, 54. ■
ASSIGNMENTS FOR BENEFIT OF CREDITORS,
construction of, for court, 9.
ASSIGNMENTS OF BONDS,
construction of, for court, 9.
1028 INDEX.
[BEFEEENCES ARE TO SECTIONS.]
ASSOCIATION,
interpretation of constitution and by-laws, for court, 12.
ASSUMPTION OF FACTS,
permitted in some jurisdictions, 38, 40.
jurisdictions wliere proliibited, 46.
regarded as a comment on weight of evidence, 47.
to wliat extent in jurisdiction wliere permitted, 41.
assumption of disputed facts, 29.
assumption of nonexistence of facts not proved, 34.
ATTORNEYS,
necessity of presence at giving of additional instructions, 182,
183.
comments on argument of, 356-358.
B.
BILL OF EXCEPTIONS,
necessity of, to preserve error in instructions, 370, 371.
BILL OF LADING,
construction of, for court, 9.
BLACKSTONE,
description of practice of summing up the evidence by the court,
52.
views of, with regard to power of jury to disregard instructions
of courts in criminal cases, 18.
BOARD OF TRADE,
interpretation of rules and regulations of, for court, 12.
BONDS,
construction of, for court, 9.
BOOK ENTRIES,
construction of, for court, 9.
index: 1029
[befeeences abb to sections.]
BOOKS,
reading from, In connection with instructions, 164-166.
as violation of rule requiring instructions to be reduced to
writing, 124.
BURDEN OF PROOF,
instructions in respect to, 346, 347.
. as to alibi, 282, 283.
BY-LAWS,
interpretation of, for court, 12.
c.
CALIFORNIA.
right of Court to direct verdict, 5.
CAUTIONARY INSTRUCTIONS,
see, generally, 213, 214.
as to presumptions, 325-343.
as to arguments of counsel, 356-358.
as to purpose for which evidence was admitted, 353-355.
as to burden and degree of proof, 346-352.
against influence by sympathy or prejudice, 344, 345.
against compromise verdict, 359.
as to accomplice testimony,' 215-224.
as to testimony of interested witnesses, 225-230.
as'to admissions and confessions, 231-237.
as to expert testimony, 238-248.
as to effect of impeachment, 249-251.
as to effect of willful falsehood, 252-256.
as to relative force of positive and negative testimony, 257-259.
as to manner of testifying, 260.
as to unsworn statement of accused, 261.
as to identity of accused, 262.
as to character evidence, 263-269.
as to conflicting evidence, 270.
as to comparison of number of witnesses, 271, 272.
as to failure to produce evidence, 273-277.
necessity of instructing that opinion of court on facts is merely
advisory, 43.
1030 IKDBX.
[EEFBEENCES ABE TO SECTIONS.]
CERTAINTY,
necessity that instructions be certain, 67,
CHANCERY,
instructions on trial of feigned issue out of chancery, 195, 196.
CHARACTER,
instructions in respect to, in criminal case, in general, 263, 268.
necessity of instruction, 269.
limitation to doubtful cases, 264.
instruction that character evidence may create reasonable
doubt, 265.
effect in cases of atrocious crime, 266.
not available against clear proof, 267.
CHARGE,
Instructions as a whole so called, 1.
CHARTER,
interpretation of, for court, 12.
CHATTEL MORTGAGE,
construction of, for court, 8.
CIRCUMSTANTIAL EVIDENCE,
instructions in respect to, 312-324.
instruction that every hypothesis but that of guilt must be
excluded to a moral certainty, 315.
instruction that every possible hypothesis except that of guilt
must be excluded, 316.
instruction that circumstances must be absolutely incompatible
■with innocence, 317.
instruction that nearly the same degree of certainty should be
produced as by direct evidence, 318.
instruction that each link in the chain of circumstances must
be proved beyond reasonable doubt, 319-321.
instruction that circumstantial evidence alone may warrant con-
viction, 322.
instruction disparaging, 323.
characterization of evidence as circumstantial, a comment on
weight of evidence, 47. Contra, 48.
INDEX. 1031
[ebfeeences ake to sections.]
CLEARNESS.
necessity that instructions should be clear, 67.
vagueness as ground for reversal, 71, 387.
COERCION.
of jury into agreement, 200, 201.
COKE,
views of, with regard to power of jury to disregard Instructions
of courts in criminal cases, 18.
COMMENTS,
on weight of evidence,
jurisdictions where practice permissihle, 38.
rule In Michigan and New Hampshire, 39.
federal practice as affected by state practice, 40.
how strong an expression of opinion is permissible, 41.
necessity of expressing opinion, 42.
necessity of instructing that opinion Is merely advisory, 43.
effect of erroneous opinion, 44.
when expression of opinion is ground for reversal, 45.
jurisdictions where practice is prohibited, 46.
instructions held to violate prohibition, 47.
instructions held not to violate prohibition, 48.
curing error by other instructions, 49.
violation of rule otherwise than by express instructions, 50.
indicating opinion by questions asked the jury, 51.
instruction as to positive and negative testimony prohibit-
ed. 357.
summing up of evidence permitted, 48, 52-54,
on argument of counsel, 356-358.
remarks of court not made in course of charge to jury, 50.
COMMON LAW,
right of judge to sum up or recapitulate the evidence adduced
at the trial, 52, 55. ;
doctrine of, as to power of jury to disregard instructions in
criminal cases, 19.
rule that jury has no right to disregard the court's instructions
in criminal cases, 22.
right of trial judge to comment on the evidence and state
opinion as to weight of evidence, 55.
1032 INDEX.
[EEFEEENCES AKE TO SECTIONS.] .
COMMUNICATION,
between judge and jury after retirement, 179-185.
COMPARISON,
instructions making comparison of number of witnesses, 271,
272, 352.
instructions comparing positive and negative testimony, 257-
259.
instructions comparing testimony of different experts, 243.
COMPROMISE,
cautionary instruction against, 359.
instructions tending to induce, 202.
CONCISENESS,
in instructions, 81.
CONCLUSIONS,
see "Presumptions."
COiSfDUCT OP COURT,
tending to belittle or emphasize particular instructions, 167,
170.
CONDUCT OP JURY,
instructions in respect to, 360.
admonition not instruction which must be in writing, 120.
CONDUCT OP TRIAL,
expression of opinion on facts in course of trial, 50.
CONPESSIONS,
instructions in respect to, 231-234.
CONPLICTING EVIDENCE,
instructions in respect to, 270.
CONPLICTING PRESUMPTIONS,
conflict between presumption of innocence and other presump-
tions, 326, 340.
INDEX. ' 1033
[BEPEBENCES ABE TO SECTIONS.]
CONFORMITY,
necessity that instructions conform to pleadings and issues, 83-
85.
necessity that instruction be based on evidence, 86-92.
CONFUSED AND MISLEADING INSTRUCTIONS,
as ground for reversal, 67, 387.
CONNECTICUT,
rule in, as to power of jury to judge the law in criminal cases,
16.
constitutional statutory provisions with regard to power of court
to disregard instructions of court in criminal cases, 21.
CONSENT,
to communications between judge and jury other than in open
court, 181.
instructions given by consent not reviewed, 381.
CONSTITUTION,
of association, interpretation of, for court, 12.
CONSTITUTIONAL, LAW,
power of jury to declare statute unconstitutional in criminal
cases, 22.
CONSTRUCTION,
of instructions by appellate court, 382.
reasonable and liberal construction, 383.
construction to support judgment, 384.
construction as a whole, 61, 385.
of writings, when question for court, 6-11.
of statute, question for court, 12, 13.
of ordinance, question for court, 14.
of oral contract, question for court, 15.
CONTRACTS,
what constitutes, question for court, 9.
construction of written contracts, for court, 7.
construction of oral contracts, for court, 15.
1034 INDEX.
[BEFEEENCES ABB TO SECTIONS.]
CONTRACTS— Cont'd.
question of existence and terms of oral contract, for jury, 15.
jury to construe, where parol evidence is admitted to explain,
11.
CONTRADICTORY INSTRUCTIONS,
as ground for reversal, 73, 387.
illustrations of instructions held contradictory, 74.
illustrations of instructions held not contradictory, 75.
CORPORATION,
interpretation of by-laws of, for court, 12.
CORRECTION,
of erroneous argument, 357, 358.
CORROBORATION,
instructions in respect to, 361.
of accomplice, instructions in respect to, 220.
COUNSEL,
necessity of notice to or presence of, when additional Instruc-
tions are given, 182.
comments on argument of, S56-358.
CREDIBILITY OP WITNESS,
question of, exclusively for .iury, 4.
necessity of giving instructions upon, 2.
cautionary instructions in respect to, 213, 270, 2t2.
instructions as to effect of impeachment, 249-251.
instructions as to effect of willful falsehood, 252-256.
instruction that manner of testifying may be considered, 260.
instructions as to, held argumentative, 69.
CRIMINAL INTENT,
instructions in respect to, 328.
CRIMINAL PROCEDURE,
power of jury to judge the law, 16-27.
power of court to instruct as to the law of the case. 2S.
INDEX. 1035
[BEFEBENCES ABE TO SECTIONS.]
CRIMINAL Procedure— con'd.
duty of court to Instruct jury as to the law of the case In states
where the jury is made the judge of the law, 23.
right to direct verdict, 5.
duty of court to instruct, in absence of request, 131, 132.
necessity of defining offense charged, 114.
instructions on included offense, 190-193.
conformity of instruction to indictment, 85.
right of defendant to be present at giving of instructions, 185.
instructions in respect to burden of proof, 346-352.
instructions in respect to presumption of innocence, 326, 327.
instructions as to reasonable doubt, 286-311. In detail, see "Rea-
sonable Doubt."
instructions in respect to presumption of sanity, 338-342.
instruction as to capacity to commit crime held prejudicial,
387.
instructions as to presumption from possession of stolen goods,
330-337.
instructions in respect to intent, 328.
instructions in respect to malice, 329.
instructions as to presumption from flight, 343,
instructions as to alibi, 278-285. In detail, see "Alibi."
held not to comment on evidence, 48.
instructions in respect to evidence competent for some pur-
poses, but not for others, 354.
conformity to evidence, necessity, 86, 87.
sufllciency of evidence to sustain, 90, 91.
instructions as to included offenses, 190, 192.
instructions held erroneous, as ignoring evidence, 101.
propriety of instructions cautioning jury against sympathy or
prejudice, 344.
instructions as to punishment, 186-189.
when harmless, 387. ,
instructions as to circumstantial evidence, 312-324. In detail,
see "Circumstantial Evidence."
instructions as to character evidence, 263-269.
instructions as to confessions and admissions, 231-234.
instructions as to testimony of defendant, 225-230.
instructions as to evidence of identity of defendant, 262.
instructions held to comment on weight of evidence, 47.
instructions held not to comment on weight of evidence, 48.
instructions held erroneous as giving undue prominence to par-
ticular evidence, 109.
1036 INDEX.
[EEFEKENCES AEE TO SECTIONS.]
CRIMINAL PROCEDURE— Con'd.
instructions as to failure to produce evidence, 274.
instructions as to failure of defendant to testify, 276, 277.
impropriety of giving argumentative instructions, 68.
illustration of instructions held contradictory, 74.
illustrations of instructions held not contradictory, 75.
contradictory instructions as ground for reversal, 78.
comments on argument of counsel, 356-358.
right to refuse requests covered by other instructions, 148.
examples of verbal inaccuracies in instructions held not to
be ground for reversal, 64.
form of instructions held to be vague, 72.
requirement that Instructions be reduced to writing, 115-125.
digest of decisions as to requirement that instructions must be
reduced to writing, 118.
digest of decisions as to what are instructions within rule that
instructions must be reduced to writing, 120.
practice in Texas with regard to summing up the evidence, 54.
practice in Louisiana with regard to summing up the evidence,
54.
necessity that court, in stating the evidence, should give the ex-
act language of witness, 57.
instruction as to weight of unsworn statements of defendant,
261.
presumption as to failure to produce evidence in favor of party,
274.
cautionary instructions as to accomplice's testimony, 215-222.
instructions as to nature and extent of corroboration, 361.
CURB,
of erroneous instruction by other instructions, 67, 76, 391.
of assumption of facts by other instructions, 29.
of expression of opinion by other instructions, 49.
of comment on weight of evidence by instruction that opinion
is merely advisory, 43.
of error in evidence by instructions, 76, 206-210.
of instructions by verdict, 390.
subsequent reduction of oral charge to writing, 123.
presumption on appeal that error was cured, 375.
CUSTOM OR USAGE,
effect of, upon meaning of words, question for jury, 11.
INDEX. 1037
[EEFEBENCBS ABB TO SECTIONS.]
D.
DAMAGES,
error as to, harmless when no recovery, 387, 390.
DEAD LANGUAGE,
instruction In, harmless, 387.
DECLARATIONS,
instructions as to weight of, 235-237.
instructions as to weight of unsworn statements of defendant
in criminal case, 261.
of law, on trial without a jury, different from instructions, 194.
DEDUCTIONS,
from facts submitted to jury, improper, 30.
see "Presumptions."
DEED,
construction of, for court, 8.
DEFENDANT,
effect of absence during giving of instructions, 185.
Instructions as to failure to testify, 276.
see "Criminal Procedure."
DEFENSE,
statement of rule as to instructions ignoring, 103.
instructions held erroneous as ignoring, 104.
DEFINITION,
of instruction, 1.
necessity of defining terms used in instruction, 112, 113.
of reasonable doubt, 286-311.
DEGREE OF PROOF,
instructions as to, 348-352.
instructions as to reasonable doubt requiring too high a degree
of proof, 307, 308.
DEGREE OF, OFFENSE,
see "Included Offenses."
1038 INDEX.
[EEFEEENCES AEE TO SECTIONS.]
DE LOLME,
views of, witli regard to power of jury to disregard instructions
of court in criminal cases, 18.
DIGEST OF DECISIONS,
as to requirement that instructions be reduced to writing, 118.
as to what are instructions, within rule that instructions must
be reduced to writing, 120.
as to right of court to instruct in absence of instruction, 128.
as to necessity of request, 130.
as to time of requesting instructions, 136.
as to form and requisites of requests for Instructions, 138.
as to necessity of putting request In writing, 140.
as to refusal of requests covered by other- Instructions, 148.
as to duty to follow language of request, 153.
as to modification of requested instruction, 158.
as to necessity of objections to Instructions, 363.
as to necessity of exceptions, 365.
as to sufllciency of exceptions, 367.
as to time of excepting to Instructions, or refusal thereof, 369.
as to necessity of bill of exceptions, 371.
as to presumption in appellate court against existence of error,
376.
as to presumption of prejudice from error, 377, 378.
as to harmless error and Instructions, 387.
DIRECTING VERDICT,
in what case verdict may be directed, 5.
necessity that direction be in writing, 120.
DISCRETION,
as to expressing opinion on facts, 42.
as to necessity of summing up evidence, 55.
as to extent of summing up, 56.
as to style and form of Instructions, K3.
DISREGARDING INSTRUCTIONS,
right of jury where they are judges of law, 24-26.
INDEX. 1039
[befbkences abb to sectioks.]
DOCUMENTARY EVIDENCE,
construction of, for court, 9.
exception to rule, 10.
rule that jury is to construe, where parol evidence is admitted
to explain, 11.
DUTY OP JURY,
instructions in respect to, 360.
admonition not instruction which must be in writing, 120.
DUTY TO INSTRUCT,
see "Necessity of Instructions."
E.
EMPHASIS,
giving undue prominence to evidence, issues, or theories, 105-
111.
manner of court tending to unduly emphasize certain instruc-
tions, 167, 170.
ENGLAND,
rule in, as to power of jury to disregard Instruction of court in
criminal cases, 18.
■ rule in, as to power of jury to judge the law in criminal cases,
16.
right of trial judge to sum up and recapitulate the evidence, 53.
ENTRIES IN BOOKS,
construction of, for court, 9.
EQUITY,
instructions on trial of feigned issue out of equity, 195, 196.
ERROR,
presumption against existence of, 375, 376.
presumption of prejudice from, 377, 378.
ESCAPE,
instructions as to presumption from attempt to escape arrest,
343.
1040 INDEX.
[HEFEBENCES ABE TO SECTIONS.]
EVIDENCE,
sufficiency of, for jury, 4.
assumptions in opposition to, 32.
assumptions not supported by, 33.
comments on weight of, 38-51.
necessity that court, in summing up the evidence, should state
all the evidence, 56.
order in which evidence should be recited to the jury, 58.
stating testimony of particular witness at request of jury, 59.
effect of misstating evidence, 60.
necessity that instructions should be based upon belief in cer-
tain facts, 79. '
necessity of basing instructions upon the evidence, 83, 86.
as to included crimes, 190.
impropriety of Instructions on excluded evidence, 89.
sufficiency to support instructions, 90.
necessity of concrete application of instructions to evidence, 92.
Instructions held erroneous as ignoring, 101.
instructions held not to ignore, 102.
Instructions giving undue prominence to particular evidence,
105.
instructions held erroneous, as giving undue prominence to par-
ticular evidence, 109.
instructions held not erroneous, as giving undue prominence to
particular evidence, 110.
application of requests to, 146.
necessity of confining jury to, instructions allowing them to use
personal knowledge, 211.
instructions as to relative weight of positive and negative testi-
mony, 257-259.
instructions in respect to conflict of evidence, 270.
Instructions comparing number of witnesses, 271, 272.
instructions In respect to evidence admissible for some pur-
poses, but not for others, 353-355.'
degree of proof, 348-353.
necessity of preservation in record to review instructions, 373,
374.
EXCEPTION,
to general rule of law, necessity of stating, 88.
manner of stating, 65.
INDEX. 1041
[eefeeences abb to sections.]
EXCEPTIONS,
necessity and sufficiency, in general, 60, 362-369.
to additional instructions, 178.
necessity of excepting to misstatement of evidence in recapitu-
lation, in order to preserve the error for review, 60.
EXCEPTIONS, BILL OF, •
see "Bin of Exceptions."
EXCLUDED EVIDENCE,
improper to base instructions on, 89.
EXEMPTIONS,
instruction as to waiver of exemption held not to comment on
weight of evidence, 48.
EXISTENCE,
of statute, question for court, 12.
of oral contract, question for jury, 15.
EXPERT EVIDENCE,
instructions in general, 238.
instruction that expert testimony is to be considered the same
as that of other witnesses, 239.
instructions discrediting, 240.
instructions directing great weight to be given, 241.
contrasting testimony of different experts, 243.
directing consideration with other testimony, 244.
instructions giving undue prominence, 245.
instructions as to hypothetical questions, 246.
necessity of requesting instructions, 248.
F.
FACTS,
see "Evidence."
FAILURE,
to testify or produce evidence. Instructions as to, 27S-277.
FAILURE OF PROOF,
right to direct verdict in case Of, 5.
66— Ins. to Juries.
1042 INDEX.
[eefeebitces aee to sections.]
FALSUS IN UNO, .
Instructions based upon maxim, 252-256.
FEEERAl, COURTS,
practice as to expression of opinion on facts, 40.
FEIGNED ISSUE,
instructions on trial of, 195, 196.
FLIGHT,
instructions as to presumption from, 343.
FOREIGN LAWS, •
■what are, 13.
judicial notice of, 13.
question of existence of, for jury, 13.
Interpretation of, for court, 13.
FORMER TRIAL,
Instruction not to consider result of, 359.
FORM,
necessity of covering whole case, 61.
duty of trial judge to adhere to old and well-settled formulas,
62.
discretion of trial judge with regard to style and form, 63.
necessity that instructions should avoid dealing in generalities,
63.
examples of verbal inaccuracies held not to be ground for re-
versal, 64.
statement of exceptions to a general rule, 65.
presenting instructions In form of questions, 66.
necessity that Instructions should be clear, direct, accurate, and
certain, 67.
argumentative instructions, 68-70.
vague or ambiguous instructions, 71, 72.
contradictory and inconsistent instructions, 73.
Instructions held contradictory, 74.
Instructions held not contradictory, 75.
error not cured by Inconsistent instructions, 76.
INDEX. 1043
[eefeeenoes are to sections.]
FORM— Cont'd.
reason for rule, 77.
ground for reversal, 78.
necessity that instructions should be prefaced with words, "If
you believe from the evidence," 79.
necessity that instructions should be hypothetical in form, 80.
length and number of instructions, 81, 82.
of instructions with regard to duty of jury to follow instructions
of court, 20.
mt instructions that jury are the judges of the law, 24.
of instructions held to improperly assume facts, 30.
of instructions held not to assume facts, 31.
of instructions held to express opinion on facts, 47.
of instructions held not to express opinion on facts, 48.
Illustrations of remarks by court which amount to an intimation
of opinion upon the weight of the evidence, 50.
of instruction held to violate constitutional provision forbidding
charging on the facts, 54.
of instructions held to depart from the pleadings and the evi-
dence, 83.
of instructions held inapplicable to evidence, 87.
necessity of concrete application to facts, 92.
Illustrations of instructions stating issues, 94.
reference of jury to pleadings for issues, 93, 95.
manner of stating issues, 96.
Issue must be completely stated, 98.
necessity that instructions be in writing, 115-125.
of requests for instructions, 137.
necessity of giving request in language requested, 152.
modification of requested instruction, 154-158.
necessity of signature of court to request, 161.
necessity of numbering requests, 159.
reading of statutes, text books, or reported decisions, 164-166.
of additional instructions on recall of jury, 176, 177.
of Instructions in respect to included offense, 193.
of instructions as to testimony of interested party or defendant
In criminal case, 225, 226.
of Instructions as to alibi, 278-285.
of instructions in respect to weight of expert testimony, 247.
of instructions as to credibility of impeached witness, 250, 251.
of instructions as to the respective weight of positive and neg-
ative testimony, 259.
1044 INDEX.
[eefeeences aee to sections.]
FORM— Cont'd .
of Instructions in respect to burden of proof, 34^7-852.
Imperative or permissive instructions in respect to distegarding
testimony of perjured witness, 253.
of instruction as to conflicting evidence, 270.
of instructions Inaking comparison In respect to numbei- of wit-
nesses, 271, 272.
of Instructions as. to evidence of good character of accused, 263-
269.
of instructions in respect to presumption of innocence, 327.
of instructions as to teasonable doubt, 286-311.
of instructions as to presumption from possessioii of stolen
goods, 332-337.
of instructions cautioning tlie jury against extraneous consid-
erations, 345.
FRAUDUIxENT CONVEYANCE,
Instructions as to, held contradictory, 74.
generA. principles,
statement of, improper when inapplicable to evidence, 86.
necessity of applying law to evidence, 92.
GEORGIA,
statutory provisions with regard to power of court to disregard
instructions of court in criminal cases, 21.
power of jury to disregard Instructions of the court In criminal
cases, 26.
GLANVILLE,
views of, with regatd to power of jury to disregard inistruCtions
of court in criininal cases, 18.
H.
ttAtlDWICKE,
denial of right of jury to disregard instructions of Court In
criminal cases, 18.
INDEX. 1043
[BBFEEBNCBS ABE TO SECTIONS.]
HARMLESS ERROR,
no reversal for error jiot prejudicial, 386, 387.
error harmless, in view of evidence, 388.
error in appellant's favor, 389.
error cured by verdict, 390.
error cured by other instructions, 67, 76, 391.
leavih? construction of contract to jury, where Jury construed
the contract correctly, 7.
leaving to jury the construction of a contract which the court
must have construed against the complaining party, 7.
taking away from jury question of terms of oral contract, 15.
in assumption of facts, 29.
assumption of undisputed facts, 37.
erroneous assumption of facts, where assumption Is permitted,
44, 45.
effect of instruction that opinion is merely advisory to cure
comment on weight of evidence, 43.
expression of opinion on facts cured by other instructions, 49.
when misstatement of evidence harmless, 60, 387.
verbal inaccuracies, 64, 387.
when vagueness in Instruction regarded as harmless, 67, 387.
argumentative instructions not ground for reversal, 70.
vague and obscure instructions not ground for reversal if they
do not mislead, 72, 387.
contradictory instructions as ground for reversal, 78, 387.
failure to base instruction on a belief from the evidence, 79.
inapplicability of instructions to evidence, 91, 387.
effect of failure to apply instructions concretely to evidence, 92.
erroneous statement of issues, 97.
incomplete statement of issues, 98.
judgment right on whole evidence, 387.
instruction in dead language, 387.
instructions giving undue prominence to particular evidence
held harmless, 105.
effect of failure to reduce instructions to writing, 117.
subsequent reduction of oral charge to writing, as curing error
in delivering same orally, 118.
instructions ignoring theory of defense held harmless, 103.
repetition of instruction ordinarily harmless, 108.
in refusing request to charge, 151.
in modifying instruction, 156, 387.
In failure to number instructions, 159, 387.
In failure to sign instructions, 161.
1046 INDEX.
[befebenoes abb to bbotions.]
HARMLESS ERROR— Cont'd.
erroneous reason given for correct ruling, 171, 387.
communication between Judge and jury after retirement or-
dinarily prejudicial, 180.
giving of instructions in absence of counsel ordinarily held
prejudicial, 184.
effect of instructions directing that evidence be not considered,
70, 206-210.
subsequent reduction of oral cbarge to writing, 123.
HILLIARD,
definition of instruction, 1.
HOMICIDE,
illustrations of instructions held not contradictory, 75.
instructions in respect to intent and malice, 328, 329.
instructions as to included offenses, 190, 191.
see "Criminal Procedure."
HYPOTHETICAL CASE,
evidence to sustain, 90.
HYPOTHETICAL INSTRUCTIONS,
not a comment on evidence, 48.
necessity that instructions should be hypothetical in form, 80.
submission of meaning of doubtful terms in contract to jury, 11.
submission of question of existence and terms of oral contract,
15.
duty to draw instructions so as to state the law upon a sup-
posed state of facts to be found by the jury, 29.
necessity that court should state the alleged facts constituting
a theory of each party to a controversy, 59.
HYPOTHETICAL QUESTIONS,
instructions in respect to, 246.
I.
IDENTITY,
question of, for jury, 4.
instructions as to evidence of Identity of defendant In criminal
case, 262.
INDEX. 1047
[eefebences ake to sections.]
IGNORING EVIDENCE,
statement of rule, 100.
Instructions held erroneous, as Ignoring evidence, 101.
instructions held not to ignore evidence, 102.
f
IGNORING ISSUES,
instructions held erroneous, as ignoring Issues, 104.
statement of rule, 103.
ILLINOIS,
rule in, as to power of jury to judge the law in criminal cases,
16.
constitutional statutory provisions with regard to power of
court to disregard instructions of court in criminal ca&>jS, 21.
IMPEACHMENT,
instructions as to effect of impeachment of credibility of wit-
nesses, 249.
INCLUDED OFFENSE,
instructions ijj respect to, 190-193.
' failure to submit when harmless, 390.
application of doctrine of reasonable doubt between degrees,
306.
INCONSISTENT INSTRUCTIONS,
see "Contradictory Instructions."
INDIANA,
constitutional and statutory provisions with regard to power of
court to disregard instructions of court in criminal cases, 21.
rule in, as to power of jury to judge the law in criminal cases,
16.
INDICTMENT,
power of jury to determine suflSciency of indictment as to form,
22.
necessity of confining instructions to charge in, 85.
INDORSEMENTS ON NEGOTIABLE PAPER,
construction of, for court, 9.
1048 INDEX.
[REFERENCES AEE TO SECTIONS.]
INFERENCES,
of facts from other facts to be drawn by Jury, 4.
possible inferences, as requiring submission of case to jury, 5.
instructions directing jury to draw particular inferences, 325.
see "Presumptions."
INSANITY,
question of, for jury, 4.
instructions in respect to presumptions, 338-342.
INSTRUCTIONS,
definition, 1.
what are within requirement that instructions be reduced to
writing, 119.
INSURANCE POLICIES,
construction, for court, 9.
INTENT,
question of, for jury, 4.
instructions in respect to, 328.
INTEREST,
instructions as to effect in determining credibility of, 225-230.
instructions as to testimony of interested witness, 225-230.
INTERLOCUTORY RULINGS,
as expression of opinion on merits, 50.
INTERPRETATION,
of instructions by appellate court, 382.
reasonable and liberal construction, 383.
construction to support judgment, 384.
constructlpn as a whole, 61, 385.
of writing, question for court, 6-11.
of statutes and ordinances, question for court, 12-14.
of oral contracts, question for court, 15.
INDEX. 1049
[EEFBEENCES AKB TO SKCTIOHS.]
INTIMATION,
of opinion on facts, 38-51.
belittling requested instructions, 167.
INTOXICATING LIQUORS,
Illustration of instructions held contradictory, 74.
INVADING PROVINCE OP JURY,
comments on evidence, 38-51.
instructions as to punishment, 188.
INVITED ERROR,
not reviewed, 379-381.
ISSUES,
duty of court to state, 59, 93.
conformity of instructions to issues, 84, 85.
manner of stating, 96.
erroneous or incomplete statement, 96, 97.
statement of, must be complete, 98.
withdrawal of, 99.
giving undue prominence to particular issue, 111.
statement in language of court, instead of that of pleadings, 96.
instructions held erroneous, as ignoring, 104.
J-
JUDICIAL NOTICE,
of foreign laws, 13.
JUDICIAL OPINIONS,
construction of, for court, 9,
JUDICIAL RECORDS,
duty of court to state effect of, 9.
JURY,
province of, in general, 3-9.
power to judge the law in criminal cases, 10-28.
instructions as to duty and conduct of, 360.
presumed to understand and apply charge, 376.
to consider all the evidence, 376.
1050 INDEX.
[BBFEBENCES ABE TO S&CTIOKS.]
K.
KENT,
views as to power of jury to disregard Instructions of the court
witli regard to the law of the case, 17.
KENTUCKY,
peculiar rule as to right to instruct respecting interest of wlt-~
ness, 227, 228.
LARCENY,
instructions as to presumption from possession of stolen goods,
330-337.
LATIN,
instruction in, harmless, 387.
LAW BOOKS,
reading from, in connection with instructions, 164-166.
reading from, as violation of rule requiring instructions to be in
writing, 124.
LAWS,
existence and Interpretation, of domestic statutes for court, 12.
question of existence of foreign statute for jury, 13.
LEASE,
construction of, for court, 9.
LENGTH,
of instructions, 81.
LETTERS,
whether not contract, question of, for court, 9.
LIMITATION,
of effect of evidence to purpose for which it .was admitted, 353
355.
of character evidence to doubtful cases, 264.
INDEX. 1051
[befekences are to sections.]
LITTLETON,
views of, •with regard to power of jury to disregard instructions
of court in criminal cases, 18.
LOCUS IN QUO,
instructions as to information acquired by jury at view, 212.
LOUISIANA,
constitutional statutory provisions with regard to power of
court to disregard instructions of court in criminal cases, 21.
power of jury to disregard instructions of the court in criminal
cases, 27.
practice in regard to summing up the evidence, 54.
M.
MALICE,
instructions in respect to, 329.
MALICIOUS PROSECUTION,
illustration of Instructions held contradictory, 74.
MANNER OF TESTIFYING,
instructions that manner of testifying may be considered, 260.
MANNER OP COURT,
In giving instructions as tending to emphasize or belittle the
same, 170.
MANSFIELD,
denial of right of jury to disregard instructions of court In
criminal cases, 18.
views with regard to power of jury to disregard instructions of
court in criminal cases, 17,
MANSLAUGHTER,
necessity and form of instructions on prosecution for murfler,
190, 191.
MARKING,
requests for instructions, necessity, 143.
presumption of, 376.
1052 INDEX.
[SEFEBElSrCES ASH TO SKOTIONS,]
MARYLAND,
constitutignal statutory provisions witli regard to power of
court to disregard instructions of court in criminal cases, 21.
rule in, as to power of jury to judge tlie law in criminal cases,
16.
MASSACHUSETTS,
constitutional statutory provisions with regard to power of court
to disregard instructions of court in criminal cases, 21.
power of jury to disregard instructions of court in criminal
cases, 28.
MICHIGAN,
rule as to expression of opinion on facts, 39.
practice in regard to summing up the evidence, s^
MISCONDUCT,
of judge in communicating with jury, 179-185.
MISLEADING INSTRUCTIONS,
as ground for reversal, 67, 387, 391.
Instructions susceptible of two meanings, 71.
contradictory instructions as misleading, 77.
Instructions abstractly correct, but not applicable to the case,
83.
MISLEADING JURY,
misstatement of eviden'ie not ground for reversal unless It
tends to mislead jury,, 60, 391.
MISSISSIPPI,
practice in regard to summing up the evidence, 54.
Instructions cannot be given except upon request, 172.
peculiar rule as to right to instruct respecting Interest of wit-
ness, 227, 228.
MISSTATEMENT,
as ground for reversal, 60.
not an expression of Opinion, 48.
INDEX. 1053
[REFEUENCES ABE TO SECTIONS.]
MISTAKE,
in stating evidence, 60.
not an expression of opinion, 48.
MODIFICATION,
of instructions, 203-20S.
of requested instruction, 154-158.
necessity of reducing to writing, 122.
MORAL CERTAINTY,
as an equivalent of reasonable doubt, 293, 294.
MORTGAGE,
construction of, for court, 8.
MUNICIPAL ORDINANCES,
question of existence of, for court, 14.
N.
NECESSITY OP INSTRUCTIONS,
as to presumption of innocence, 326.
as to effect of proof of good character, 269. '
as to alibi, 278.
defining reasonable doubt, 286.
■where jury are judges of the law, 23.
in the absence of requests, 126.
NEGATIVE TESTIMONY,
instructions as to relative weight of positive and negative te.sti-
mony, 257-259.
NEGLIGENCE,
question of, for jury, 4.
instructions in relation to, held to comment on weight of evi-
dencel 47.
Instructions as to, held argumentative, 69.
instructions as to, held to ignore issues, 101.
NEW HAMPSHIRE,
rule as to expression of opinion on facts, 39.
1054 INDEX.
[EEFBEENCES AEE TO SECTIONS.]
NONPRODTJCTION OF EVIDENCE,
Instructions in respect to presumptions from, 273, 274.
NOTICE,
question of, for jury, 4.
to counsel to permit attendance at giving of additional in-
structions, 182-184.
NOTICE OP PROTEST,
construction of, for court, 9.
NUMBER,
of instructions, 81.
power of court to limit, 82.
NUMBER OP WITNESSES,
instructions making comparison In respect to, 271, 272, 352.
NUMBERING INSTRUCTIONS,
necessity, 159.
o.
OBJECTIONS,
see "Saving Questions for Review."
OBSCURENESS,
in Instructions, 71, 72, 391.
ONUS PROBANDI,
Instructions in respect to, 346-352.
OPINION,
comments on weiglat of evidence, 38-51.
prohibition of court from expressing opinion on the weight of
evidence does not forbid summing up the evidence, 53.
right of trial judge at common law to express his opinion as to
weight of evidence, 55.
expression of opinion of court In regard to weight of expert
evidence, 240, 241.
OPINION EVIDENCE,
see "Expert Evidence."
INDEX. 1055
[KBFEKENCES ABE TO SECTIONS.]
ORAL CONTRACTS,
construction of, for court, lb.
question of existence and terms of, for jury, IS.
ORAL INSTRUCTIONS.
reading of pleadings as, 94.
ORDER OF COURT,
construction of, for court, 9.
ORDINANCES,
question of existence of, for court, 14.
OREGON,
practice in regard to summing up the evidence, E4.
PAROL AGREEMENTS,
question of existence and terms of, for jury, 15.
construction of, for court, 15. '
PAROL EVIDENCE,
admission of, to explain writing as drawing question of consid-
eration. to the jury, 11. ^
PARTIES,
Instructions as to credibility of, 225-230.
PARTNERSHIP CLAIMS,
construction of, for court, 9.
PARTY,
Instructions as to failure to testify, 275-277.
cautionary Instructions as to credibility, 225-230.
PATENTS,
construction of, for court, 9.
PERJURY,
instructions as to testimony of perjured witness, 250-256.
1056
INDEX.
[REFERENCES ARE TO SECTIONS.]
PERSONAL KNOWLEDGE,
instructions allowing jurors to use their personal knowledge
of facts, 211.
PLATS,
construction of, for court, 9.
PLEADINGS,
necessity of basing instructions upon the pleadings, 83, 84.
conformity of instruction to, 84.
reading to the jury, 93-95.
duty of court to state issues, 93.
POSITIVE TESTIMONY,
instructions as to relative weight of positive and negative testi-
mony, 257-259.
POSSIBILITIES,
insuflBcient to require instruction, 90.
PRECEDENTS,
duty of framing instructions to follow well-settled precedents,
62.
PREFERENCE,
instruction as to, held not to comment on weight of evidence, 48.
PREJUDICE,
cautionary instructions against, 344, 345.
no reversal for instructions not prejudicial, 386-391.
presumption of prejudice from error, 377, 378.
see "Harmless Error."
PREPONDERANCE OP EVIDENCE,
instructions in respect to, 346-352.
PRESENCE OP COUNSEL,
at giving of instructions, 182-184.
presumption of, 376.
INDEX. 1057
[REFEHENCES ARE TO SECTIONS.]
PRESENCE OP DEFENDANT,
at giving of instructions, 185.
presumption of, 376.
PRESUMPTION,
of law, court may instruct upon, 4.
tliat facts assumed were undisputed, 37.
that facts assumed to be admitted were in fact admitted, 36.
in appellate court against existence of error, 375, 376.
of prejudice from error, 377, 378.
instructions in respect to, In general, 325.
jury presumed to have understood and applied charge, 376.
to have considered evidence, 376.
charge presumed to have been In writing, 376.
parties and counsel presumed to have been present, 376.
from unsuccessful attempt to prove alibi, 284.
from failure of party to testify, 275-277.
of innocence, 326, 327.
as to intent, 328.
as to malice, 329.
from possession of stolen goods, 330-337.
as to sanity, 338-342.
from flight, 343.
PROLIXITY,
in instructions, 81.
PROMINENCE,
giving undue prominence to evidence, issues, or theories, 105-
111.
PROOF,
burden of, 346, 347.
degree of, 348-352.
see "Evidence."
PROVINCE OF COURT AND JURY,
questions of law and fact in general, 3-5.
construction of writings, 6-11.
existence and interpretation of laws, ordinances, and rules, 12*
■ 14.
67— Ins. to Juries.
105S INDEX.
[KEFERENOES ARE TO SECTIONS.]
PROVINCE OP COURT AND JURY— Cont'd.
oral contracts and language, 15.
power of jury to judge the law in criminal cases, 16-28.
duty of court to state issues, 93.
instructing jury to draw particular inference, 325.
determination of whether there is foundation in the evidence
for any particular instructions, 83.
invading province of jury, comments on evidence, 38-51.
submission to jury of question for court, when harmless, 391.
PUBLIC RECORDS,
construction of, for court, 9.
PUNISHMENT,
instructions in respect to, 186-189.
when harmless, 387.
PURPOSE,
of instructions, 2.
PURPOSE OP EVIDENCE,
instruction as to consideration evidence admissible for some
purposes, but not for others, 353-355.
Q.
QUESTIONS,
intimating opinion on weight of evidence, 51.
presenting instructions in form of, 66.
QUESTION FOR JURY,
province of court and jury, generally, 3-28.
QUESTIONS OP LAW AND PACT,
see, generally, 12.
R.
READING STATUTES,
in connection with instructions, 164.
INDEX. 105'J
[EBFEEENOES AEB TO SECTIONS.]
READING TEXT BOOKS,
in connection with instructions, 165.
as violation of rule that instructions must be In writing, 124.
REASONABLE DOUBT,'
necessity of instructions, 286.
repetition of instructions on reasonable doubt unnecessary, 287.
necessity of defining reasonable doubt, 288.
statutory definitions, 289. '
a doubt for which reasons based on evidence can be given, 290.
a doubt which would cause a reasonable man to pause and hesi-
tate in the graver transactions of life, 291.
a doubt that would cause a reasonably prudent man to act in
his own most important affairs, 292.
absence of reasonable doubt as equivalent to "moral certainty,"
or "reasonable and moral certainty," 293.
absence of reasonable doubt as equivalent to an "abiding con-
viction to a moral certainty," 294.
. negative definitions, 295.
not a doubt as to law, 296.
not a doubt raised by argument of counsel, 297.
entire satisfaction of guilt as equivalent to absence of reason-
able doubt, 298.
probability of innocence may create reasonable doubt, 299.
a doubt arising from the evidence or want of evidence, 300.
doctrine applicable only to evidence considered as a whole, 301,
302.
as to number of jurors who must entertain a reasonable doubt
in order to acquit, 303.
must not disbelieve as jurors what they would believe as men,
304.
better that guilty escape than that innocent be punished, 305.
applying doctrine to- degrees of crime, 306.
instructions bad ds requiring too high a degree of proof to over-
come a reasonable doubt, 307.
Instructions bad