(Snrtipll ICatu i^rlyool ICibtaty KF8984.RlT" ""'"""" """'^ A treatise on the law of instructions to 3 1924 020 114 751 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020114751 A TREATISE ON THE LAW OF INSTRUCTIONS TO JURIES IN CIVIL AND CRIMINAL CASES WITH FORMS OF INSTRUCTIONS APPROVED BY THE COURTS BY THE EDITORIAL STAFF OF THE WEST PUBLISHING COMPANY UNDER THE SUPERVISION OF HENRY E. RANDALL VOLUME I 1922 VERNON LAW BOOK COMPANY KANSAS CITY. MO. ^ I2 7fs- COPTBIGHT, 1&22 BY VEKNON LAW BOOK CO. (Randai.Ii InbtJxtb.) PUBLISHER'S PREFACE Out of the dim and distant past in juridical history there has come, and now abides with us, the Jury System, impregnably in- trenclied in constitutional guaranty. In civil actions, and in crim- inal prosecutions, one of the greatest elements of the contest is involved in the inquiry, What are the Facts? The wisdom of mankirid has reached the definite and decisive conclusion that the determination of questions of fact rests, not with the jurist, but with a body of laymen, possessing no intimate knowledge of the law, but endowed with the faculties and experience of the common and average man. This body, known as th^ Common-Law Jury, is intrusted with the task of sifting the truth from circumstances, the frailties of human memory, the passions and evil designs of factions, and the defects of understanding. This task is made the Function of the jury,_ and the law, in positive and certain terms, declares that that function shall not be invaded by the trial judge. But the Law of the Case is to be pronounced by the judge in Instructions, couched in plain and unambiguous terms. In these instructions the judge is required rigidly to refrain from expressing his own views as to the facts, from intimating to the jury the weight to be given to particular testimony, and from as- suming the existence of facts not clearly admitted by both parties to the litigation. To accomplish this result the judge is required to resort to. a most adroit and painstaking literary effort, and to produce a Charge which will withstand the assaults of counsel for the unsuccessful party in the appellate court. The supervising editor, for more than a generation, has con- stantly watched .the stream of current decisions which has steadily flowed into the reservoir of reported cases; he has observed the questions debated and decided in these cases; and one thing that has been borne in upon him is the fact that almost one-half of the legal wai-fare inscribed on the pages of these opinions deals with the subject of the Province of the Court and Jury, and the delim- itation of that province in the Instructions of the trial judge in the court below. In this stream of opinions he has seen the same case come several times before the same appellate court, indicat- ing tragic consequences in the administration of justice, due wholly, to the failure of the trial judge to instruct the jury according to (ill) IV PE,EFACE the established law. These conceptions moved him to bring about the production of a work on Instructions that might tend to clarify the turgid watery of jury trial litigation, and stand as a guide for correct instructions on all of the subjects of the law. To this task he bent his energies for several years, and applied to the sub- ject the most painstaking care. He has employed in the supervi- sion of the work the full measure of his long experience. With a corps of skilled assistants, working under his superyision, he has gathered together and assimilated the general rules applicable to' instructions to the jury, and has culled from the whole mass of adjudicated cases all of the forms of instructions in particular cases which have received the approval of the courts of last resort. His sincere hope is tliat this work will be of utility to the bench and bar of the Nation in i^esolving the eternal, the vital, and the ever- present question: The form and sufficiency of Instructions in jury trials. January, 1922. TABLE OF CONTENTS PART ONE RULES GOVERNING THE GIVING OR REFUSAL OF INSTRUCTIONS Chapter Sections 1. Definitions, Distinctions, and- General Considerations i 1-5 2. Credibility of Witnesses as a Jury Question 6-2T 3. Comment by Court or Expression of Opinion on the Weight or Sufficiency of the Evidence 28-73 4. Assumption of Existence or Nonexistence of Facts by the Court : 74-82 5. Comment by Court on Merits or Conduct of Cause or Parties 83-85 6. Questions of Law in Civil Cases 86-96 7. Questions of Law in Criminal Cases. 97-102 8. Directing Verdict 103-117 9. General Considerations as to Necessity of Instructions 118-120 10. Relatioh and Applicability of Instructions to Pleadings and Evidence .'. 121-145 11. Necessity, Propriety, and Sufficiency of Instructions on Credi- bility of Witnesses 146-184 12. Instructions on Presumptions and Inferences 185-202 13. Instructions on Burden of Proof 208-207 14. Instructions with Regard to Probative Force of Particular Classes of Evidence 208-223 15; Instructions on Circumstantial Evidence 224-235 16. Instructions on Character of Defendant in Criminal Prosecu- tion 236-244 17. Instructions on Degree of Proof 245-278 -18. Facts Conclusively Established or Failure or Absence of Proof 279-280 19. Summing up the Whole Case or Summarizing the Entire Evidence 281-283 20. Grouping Facts for Purpose of Declaring Law Thereon or Di- recting Verdict. 284-287 21. Exclusion of Evidence from Consideration of Jury 288-292 22. Explaining Purpose for Which Particular Evidence may be Considered 293-300 , 23. Necessity, Propriety, and Sufficiency of Instructions Where i Case is Submitted to Jury for Special Findings 301-303 24. Instructions, in Equity Causes 304-305 25. Instructions on Particular Matters in Criminal Cases 306-317 26. Instructions on Defenses in Criminal Cases 318-340 27. Instructions Bearing on Relief Awarded or Punishment In- flicted 341-356 INST.TO JUBIES (V) VI TABLE OF CONTENTS Chapter Sections 28. Definition or Explanation of Terms 357-365 29. Necessity and Propriety ol Instructions as to Duties of Jury. . 366-376 30. Instructions Considered with Reference to Duty of Jury, to Form Conclusions Solely from the Evidence 377-384 31. Necessity and Propriety of Instructions with Reference to Arguments of Counsel 385-386 32. Directions as to Form of Verdict 387-389 33. Formal Matters Connected with Giving of Instructions 390-454 34. Instructions Correcting, Explaining, or Withdrawing Other Instructions 455-456 35. Giving Additional Instructions after Retirement of Jury 457-463 36. Requests or Prayers for Instructions 464-505 37. Objections and Exceptions ■. 506-529 38. Construction and Operation 530-539 PART TWO FORMS OF INSTRUCTIONS 39. Abduction 540-554 40. Abortion 555-575 41. Abstracts of Title 576 42. Abuse of Process 577-581 43. Abutting Owners 582-592 44. Accident Insurance 593-619 45. Accord and Satisfaction 620-628 46. Account, Action on 629-632 47. Account Stated.. ; 633-637 48. Acknowledgment 638-640 49.' Adjoining Landowners 641-656 50. Adultery 657-669 51. Adverse Possession 670-739 52. Alteration of Instruments 740-758 53. Amusement Enterprises 759-763 54. Animals 764^810 55. Apprentices 811-812 56. Arbitration and Award 813-818 57. Architects 819-824 58. Arrest 825-830 59. Arson 831-837 60. Assault and Battery 838-919 61. Assignments 920 62. Assignment for Benefit of Creditors 921-932 63. Assumpsit ..." 933-936 64. Attachment 937-950 65. Attorney and Client. ; 951-983 66. Bailment 984-1000 67. Bankruptcy 1001-1009 68. Banks and Banking 1010-1037 69. Bastardy 1038-1053 TABLE OP CONTENTS Vll Chaptef Sections 70. Bigamy .. . , 1054-1059 71. Bills and Notes 1060-1135 72. Boards of Trade 1136 73. Bonds 1137-1138 74. • Boundaries ; 1139-1173 75. Breach of Promise to Marry 1174-1197 76. Breach of the Peace 119S-1200 77. Bribery 1201-1206 78. Bridges 1207-1229 79. Brokers 1 1230-1281 80. Building and Construction Contracts 1282-1324 81. Building and Loan Associations 1325-1327 82. Burglary 1328-1360 83. Cancellation of Instruments 1361-1369 84. Carriers 1370-1761 85. Cautionary Instructions 1762-1770 86. Champerty and Maintenance 1771-1772 87. Chattel Mortgages 1773-1797 88. Collision 1798-1799 89. Compromise and Settlement 1800-1806 90. Concealing Birth 1807-1808 91. Conspiracy 1809-1819 92. Continuance 1820 93. Contracts 1821-1889 94. Corporations , 1890-1919 95. Counties 1920-1924 96. Covenants , 1925-1929 97. Criminal Law 1930-2017 98. Crops 2018 99. Customs and Usages 2019-2020 100. Damages , 2021-2091 101. Dead Bodies 2092-2093 102. Death by Wrongful Act 2094-2128 103. Dedication 2129-2135 104. Deeds 2136-2145 105. Depositaries 2146 106. Depositions . 2147 107. Detinue 2148-2149 108. Disorderly Conduct 2150 109. Disorderly House 2151-2158 110. Disturbance of Public Assembly 2159 111. Disturbance of Religious Assembly 2160-2162 112. Divorce 2168-2167 113. , Domicile 2168 114. Dower 2169-2171 115. Drains .' 2172-2176 116. Druggists 2177-2182 117. Drunkards 2183-2184 118. Ejectment 2185-2196 119. Elections 2197-2201 120. Electricity 2202-2232 VIU TABLE OF CONTENTS Chapter Sections- 321. Embezzlement 2233-225T 122. Eminent Domain 2258-2321 123. Equity 2322 124. Escape 2323-2324 125. Escrow 232& 126. Estoppel 2326-2338 J27. Evidence 2339-2355 128. Exchange of Property 2356 129. Execution '2357-2359 ^ 130. Executors 'and Administrators 2360-2365 131. Bxeriiptions 2366-2371 132. Explosives 2372-2383 133. Extortion 2384 134. Factors 2385-2414 135. Fair Associations. 2415-2418 136. False Imprisonment 2419-2444 137. False Personation 2445^ ■ 138. False Pretenses 2446-2471 139. Fences 2472-2473 140. Ferries 2474 141. Fidelity Bonds [ 2475-2477 142. Fire Insurance 2478-2575 143. Fires 2576-2584 144. Fish and Game 2585-2588 145. Fixtures 2589-2591 146. Food 2592-2594 147. Forcible Entry and Detainer 2595-2597 148. Forgery 2598-2623 149. Fornication 2624-2625 150. Fraud 2626-2658 151. Frauds, Statute of 2659-2666 152. Fraudulent Conveyances 2667-2719' 153. Gaming 2720-2739 154. Garage Keepers 2740-2741 155. Garnishment 2742-2746 156. Gas 2747-2754 157. Gifts 2755-2760 158. Good WiU 2761-2762 159. Guaranty 2763-2769 160. Hawkers and Peddlers 2770 161. Homestead 2771-2780 162. Health Insurance 2781 163. Homicide 2782-3085 164. Hospitals 3086-3091 165. Husband and Wife 3092-3130 166. Improvements 3131 167. Incest 3132-3139 168. Indemnity 3140-3142 169. Indians 3143 170. Indictment and Information 3144r-3147 171. Infants 3148 TABLE OF C0NTE3NTS IX ■Chapter Sections 172. Injunction 3149-3150 173. Innkeepers 3151-3167 174. Insanity 3168 375. Insolvency 3169-3171 176. Interest 3172 177. Internal Revenue 3173 178. Intoxicating Liquors 3174r-3213 179. Joint Adventures 3214^8216 180. Judgment 3217 181. Judicial Sales. 3218-3219 182. Junk Dealers 3220 183. Kidnapping 3221 184. Landlord and Tenant 3222-3291 185. Larceny 3292-3335 186. Lewdness 3336-3340 187. Libel and Slander 3341-3486 188. Licenses 3437-3438 189. Life Estates 3439 190. Life Insurance 3440-3492 191. Limitation of Actions 3493-3511 192. Lis Pendens 3512 193. Livery Stable Keepers 3513-3521 194. Logs and Logging 3522-3536 195. Lost Instruments 3537 196. Lotteries 3538 197. Malicious Mischief 3539-3552 398. Malicious Prosecution .- 3553-8587 199. Marine Insurance 3588-8590 200. Marriage' 3591-3594 201. Master and Servant 3595-3837 202. Mechanics' Liens ^. 3838-3840 203. Mines and Mining '. 3841-8866 204. Money Lent 3867 205. Money Paid 3868 206. Money Received 3869 207. Monopolies 3870-3877 208. Mortgages 3878-3881 209. Motor Vehicles 3882-3888 210. Municipal Corporations 3889-4015 211. Mutual Benefit Insurance 4016-4034 212. Navigable Waters '. 4035-4048 213. Negligence » 4049-4097 214. Notaries Public 4098 215. Notice 4099-4100 216. Novation 4101 217. Nuisance , 4102-4117 218. Obstructing Justice 4118 219. Officers 4119-4120 220. Parent and Child 4121-^133 221. Partition . 4134 222. Partnership 4135-4159 X TABLE OP CONTENTS Chaifter Sections 223. Patents i 4160 224. Paupers 4161 225. Payment 4162-4174 226. Perjury 4175-^186 227. Physicians and- Surgeons 4187-4220 228. Pledges 4221-4224 229. Post Office 4225 230. Principal and Agent 4226-4273 231. Principal and Surety , 4274^^79 232. Prostitution * 4280-4285 233. Public Lands 4286-4287 234. Railroads 4288-4502 235. Rape 4503-4559 236. Receivers , 4560 237. Receiving Stolen Goods 4561-4569 238. Recoupment, Set-Oflf, and Counterclaim 4570 239. Records , 4571 240. Reformation of Instruments , , . , 4572-4574 241. Register of Deeds , 4575 242. Release and Discharge 4576-4581 243. Religious Societies 4582-4585 244. Replevin , . . . , 4686-4597 245. Riot ...; ,.r 4598 246. Robbery 4599-4618 247. Sales 4619-4743 248. Schools and- School Districts 4744-4746 249. Searches and Seizures ". 4747-4753 250. Seduction i , 4754-4795 251. Sequestration ^ 4796 252. Sheriffs and Constables 4797-4801 253. Shipping , 4802-4813 254. Signature 4814 255. Specific Performance , , 4815 256. StaUions ■. , 4816 257. States 4817 258. Street Railroads 48i8-4899 259. Streets and Highways , ,.4900-5010 260. Subrogation 5011 261. Subscriptions ,. 5012 262. Sunday 5013 263. Taxation ... 5014-5018 264. Telegraphs and Telephones 1, 5019-5052 265. Tenancy in Common 5053-5055 266. Tender ... . 5056-5058 267. Theaters , ,. , 5059-5062 268. Threats 5063-5065 269. Torts • 5066-5071 270. Towage ., ., 5072-5073 271. Trespass 5074-5099 272. Trespass to Try Title .;....., 5100-5105 273,. Trover and Conversion 5106-5113 TABLE OF CONTENTS XI Chapter Sections 274. Trusts 5114-5116 275. Turnpikes and Toll Roads 5117 276. Undertakers ." 5118 277. United States Marshals 5119 278. Use and Occupation 5120 279. Usury 5121-5125 280. Vagrancy '. 5126 281. Vendor and Purchaser 5127-5156 282. War 5157-5159 283. Warehousemen 5160-5179 284. Waste 5180 285. Waters and Water Courses 5181-5228 286. Weapons 5229-5243 287. Weights and Measures 5244 288. Wharves 5245 289. Wills 5246-5329 290. Witnesses 5330-5350 291. Work and Labor 5351-5356 292. Workmen's Compensation Acts 5357-5361 TABLE OP CASES CITED (Volume 5) INDEX (Volume 5) t INSTRUCTIONS TO JURIES INST.TO JTJBIES ( 1 ) < ■ PART ONE RULES GOVERNING THE GIVING OR REFUSAL OF INSTRUCTIONS CHAPTER I DEFINITIONS, DISTINCTIONS, AND GENERAL CONSIDERATIONS § 1. Significance and purpose of instructions. 2. Importance of definition of province of court and jury. 3. Difficulties of administering jury system. 4. Province of court with respect to the facts at common law. 5. Province of the court with respect to the facts under constitutional and statutory provisions. § 1. Significance and purpose of instructions The word "instructions,'* as used to describe the directions given by the judge* to the jury on the trial of a civil or.criminal case, has a tend- ency to mislead, in that it seems to imply some degree of subordination on the part of the body instructed to that instructing. The word may, perhaps, suggest the relation of principal and agent — a principal who evolves from his own breast rules of conduct for an agent who owes his existence solely to the act of the principal. The analogy is not a true one. The jury is in no sense the agent of the judge. They both derive their origin from the same high soturce, and tiie judge in laying down rules to guide the jury in their deliberations, merely acts as the mouthpiece of the 'law for the purpose of marking out a definite and clearly ascertained path by which the ends of justice are attained. That this is so becomes more apparent when it is seen that even in those actions at law in which the judge acts without the aid of a jury, a party has a right to demand that the prmciples of law applicable to the facts found by the court shall be declared by it as distinctly as in instructions to a jury,^ and that such declarations should as in cases tried before a jury, avoid comment upon the weight and probative effect of the evi- dence.* The province of instructions to juries may be said to be to state and apply the law to the facts in a particular case, so that it may readily be 1 Harbison v. School Dist. No. 1, M. R. Co., 47 Mo. App. 570; King v. 1 S. W. 30, 89 Mo. 184. Allemania Fire Ins. Co., 37 Mo. App. 2 Patterson v. Kansas City, Ft. S. & 102. * In this book "court" or "judge," for convenience, will be used as converti- ble terms. INST.TO Juries (3) § 2 mSTBUCTIONS TO JURIES * understood by the mind untrained in the law.' Accordingly the purpose of such instructions should be to present the issues of the case in the most intelligible form," notice the claims of the parties, suggest so far as necessary the principles of evidence and their application," and de- fine for the jury and direct their attention to the legal principles which govern the facts proved or presumed in the case," and, where the evi- dence is of such a character as may easily lead to the raising of a false ' issue, the court should guard against such an issue by appropriate in- structions/ It has been said, however, that the principal benefit to be derived from a charge to the jury is riot a statement of the law, but the elimination of irrelevant matters.' § 2. Importance of definition of province of court and jury At the very threshold of a work on instructions to juries lies the problem of defining the respective provinces of court and jury, since in every instruction to the jury which is not a mere abstiract statement of the law there must necessarily he present, in the mind of the court the question how far it can, or should, go without surrendering its own prerogatives or invading those of the jury. • The problem, of course, is largely to prevent the jury from being reduced to a mere ministerial agent of the court. While laws have been enacted from time to time confirming and strengthening the status of the jury as a part of our judicial machinery, and courts recognize theoretically that the jury performs functions equal in importance to their own, yet when they come to instruct the jury they frequently fail to visualize that the prov- ince of the jury, although not so tangible as an acre of land or a geo- 3 Oarty V. State, 204 S. W. 207, 135 reference to the law of the case, Ark. 169; Pagels v. Meyer, 61 N. B. enabling the Jury to better under- 1111, 193 111. 172. stand their duty and to prevent them * Owen V. Owen, 22 Iow;a, 270 ; from arriving at a wrong conclusion. Louisville & N. R. Co. v. King's Hanson v. Kent & Purdy Paint Co., Adm'r, 115 S. W. 196, 131 Ky. 347. 129 P. 7, 36 Okl. 583 ; Butler v. Gill, The court should give the jury 127 P. 439, 34 Okl. 814; Leavitt v. all reasonable aid in solving the Deichmann, 120 P. 983, 30 Okl. 423. questions before them, taking care What are instructions within not to overstep the plain boundary statutes requiring them to be in that separates the two. Gillett v. writing, see post, i§ 444r-446. Webb, 17 111. App. 458. ^ Estes v. Desnoyers Shoe Co , 155 6 Souvais V. Leavitt, 15 N. W. 37, Mo. 577, 56 S. W. 316. 50 Mich. 108. » irvin v. Southern Ry. Co., 80 S. 8 Nelson v. State, 52 S. E. 20, 124 E. 78, 164 N. C. 5. Ga. 8; Virgin v. Lake Brie & W. Bi. Teaching law to jury. The ob- Co., 101 N. B. 500, 55 Ind. App. 216; ject of a charge is not to teach law to St. Louis Southwestern Ry. Co. of the jurors, but to direct their conduct Texas v. Cleland, 110 S. W. 122, 50 in the controversy they are called on Tex. Civ. App. 499; State v. Dodds, to decide; Lendberg v. Brotherton 46 S. B. 228, 54 W. Va. 289. Iron Min. Co., 42 N. W. 675, 75 Mich. Instructions are directions In 84. 5 DEFINITIONS AND GENERAL CONSIDERATIONS § 3 graphical subdivision, has certain definite frontiers which are to be de- fended. § 3. Difficulties of administering jury system The fundamental conception of the jury system is a simple one: Two tribunals sitting side by side in the adjustment of human rights and relations, one supreme in the realm of fact, and the other absolute in the realm of law; the composite decision of law and fact being ren- dered by the jury after being duly instructed in the law by the court. However, it must be admitted that we have here a very delicate piece of mechanism. Embarrassment is pretty certain to arise when one equal is called upon to instruct a coequal as to their respective rights and duties. Human nature being what it is, there is a tendency for the one to be accorded dominance and the other to acquire subserviency. Moreover, in pointing out to the jury the matters they are to pass upon, the boundaries between fact and law must be plainly indicated. Yet it is not always easy even for the trial judge, to fix such boundaries, and not every judge has the power of lucid expression necessary to avoid misapprehension by the juror, or, if the judge has such power, he frequently has not the disposition or opportunity to use it in the hurry of the courtroom. Then, too, the trial judge trained, not only in the law, but in the ability to grasp quickly the meaning of facts, often finds it difficult not to anticipate the conclusions of the jury. It ought not to be a matter of surprise, therefore, that in the trial of cases before a jury instructions, intended to guard against error, be- come themselves a prplific source of error, and there is often involved much of vexation, annoyance, and hope deferred, which might, per- haps, have been avoided if the trial had been before a single tribunal. But, whatever the defects of the jury sys.tem are, it will in all hu- man probability endure as long as our present form of government. It is too broadly buttressed upon political, sociological, and histori- cal reasons to be overthrown by mere considerations of efficiency. When our society is more perfectly organized, perhaps the juror will come to the performance of his duties with an equipment which will enable the court merely to lay down general principles, leaving to the jury their concrete application. Until that time ar- rives it will be the duty of the profession to eliminate waste and friction by a study of the precedents in the decisions of the courts of last resort, of which there are now a vast number, and which discuss the relations of court and jury from almost every conceiv- able, angle. In this and the immediately ensuing chapters, II- VIII and also to some extent in chapters XXIX and XXX, it has §4 INSTKtJCTIONS TO JURIES been sought, from these decisions, to construct a chart of the fun- damental principles which should guide the court in giving in- structions, so far as their formulation is affected by the necessity of preserving unimpaired the supremacy of court and jury in their respective spheres. § 4. Province of court with respect to the facts at common law Under the common law it is competent for the trial judge to give his opinion upon the facts, as well as upon the law, so long as he leaves it to the jury to find a verdict according to their opinions,' and in the federal courts, where the common law prevails, it is the settled doc- "V. S. (C. C. A. Iowa) Freese v. Kemplay, 118 F. 428, 55 C. C. A. 258. Conn. CuUum v. Colwell, 83 A. 695, 85 Conn. 459 ; Cook v. M. Stein- ert & Sons Co., 36 A. 1008, 69 Conn. 91 ; Appeal of Dale, 57 Conn. 127, 17 A. 757; Appeal of Comstock's Com'rs, 55 Conn. 214, 10 A. 559. Ga. Beall v. Mann, 5 Ga. 456. Me. Phillips v. Inhabitants of Vla- zie, 40 Me. 96; Frankfort -Bank v. Johnson, 24 Me. 490; Dyer v. Greene, 23 Me. 464; Inhabitants of Phillip v. Inhabitants of Klngfield, 19 Me. 375, 36 Am. Dec. 760 ; Ware v. Ware, 8 Me. 42. Mass. Mansfield v. Corbln, 4 Cush. 213; Whiton v. Old Colony Ins. Co., 2 Mete. 1; Davis v. Jenney, 1 Mete. 221; Curl v. Lowell, 19 Pick. 25. Minn. First Nat. Bank of De- corah V. Holan, 63 Minn. 525, 65 N. W. 952. N. Y. Hnrlburt v. Hurlburt, 128 N. T. 420, 28 N. E. 651, 26 Am. St. Kep. 482; Powell v. Jones, 42 Barb. 24 ; Hunt v. Bennett, 4 E. D. Smith, 647, affirmed 19 N. Y. 173 ; Bulkeley V. Keteltas, 6 N. T. Super. Ct. 450, reversed 6 N. T. 384 ; Gardner v. Picket, 19 Wend. 186 ; People v. Gen- xrng, 11 Wend. 18, 25 Am. Dec, 594. Ohio. Jaspers v. Mallon, 9 Ohio Dec. 184, 11 Wkly. Law Bui. 166. Pa. Lappe v. Gfeller, 60 A. 1049, 211 Pa. 462; Didier v. Pennsylvania Co., 146 Pa. 582, 23 A. 801 ; Hulett v. Patterson, 8 A. 917; Bonner v. Her- rick, 99 Pa. 220; Leiblg v. Steiner, 94 Pa. 466; Greeley v. Thomas, 56 Pa. 35 ; Ditmars v. Commonwealth, 47 Pa. 335; Bernstein v. Walsh, 32 Pa. Super. Ct. 392; Knee v. McDowell, 25 Pa. Super. Ot. 641 ; Oldham v. United States Express Co., 25 Pa. Super. Ot. 549; Rondinella v. Metropolitan Life Ins. Co., 24 Pa. Super. Ct. 293 ; Wills v. Hardcastle, 19 Pa. Super. Ct. 525; Sampson v. Sampson, 4 Serg. & B. 329; Long v. Eamsay, 1 Serg. & R. 72. S. C. State v. Smith, 12 Rich. Law, 430; Klrkwood v. Gordon, 7 Rich. Law, 474, 62 Am. Dec. 418; Martin V. league's Bx'rs, 2 Speers, 260 ; Farr V. Thompson, 1 Speers, 93 ; State v. Bennet, 3 Brev. 514. Vt. Rowell V. Fuller's Estate, 59 Vt. 688, 10 A. 853 ; Missisqnoi Bank V. Bvarts, 45 Vt. 293; Sawyer v. Phaley, 33 Vt. 69; Tale v. Seely, 15 Vt. 221. Instructions held permissible within rule. A remark of a judge, in his instructions, that he had per- ceived no evidence in support of a position taken by one of the parties, but still referring it to the jury to settle the case on the evidence, is no ground for exceptions. Cunningham V. Batchelder, 32 Me. 316. It is within the province of a trial judge to tell the jury that a certain case, in its facts, is very like the case at bar, and the fact that he incidentally divulges the circumstance that in that case the jury found for plaintiff is immaterial, where the jury are in- structed that they are to find a ver- dict on the evidence before thenj. Anderson v. McAleenan, 8 N. T S. 483, 15 Daly, 444. DEFINITIONS AND GENERAL CONSIDERATIONS §4 trine, both in civil ^° and in criminal cases,^^ that it is not reversible er- ror for the judge to express his own opinion on the facts, if the rules of law are correctly laid down and all matters of fact are ultimately 10 11. S. Baltimore & P. R. Co. v. Fifth Baptist Church, 137 U. S. 568, 11 S. Ct. 185, 34 L. Ed. 784; VicUs- burg & M. R. Co. V. Putnam, 118 U. S. 545, 7 S. Ct. 1, 30 L. Ed. 257; (C. C. A. Ark.) Lesser Cotton Co. v. St. Louis, I. M. & S. Ry. Co., 114 F. 133, 52 C. C. A. 95; (C. C. Cal.) Nome Beach Lighterage & Transp. Co. v. Munich Assur. Co., 123 F. 820; (C. O. A. Del.) Pullman's Palace Car Co. V. Harkins, 55 P. 932, 5 C. C. A. 326; (C. C. A. Pla.) Smith v. St. Louis I. M. & S. R. Co., 214 F. 737, 131 C. C. A. 43; (C. C. A. 111.) Illinois Cent. R. Co. v. Davidson, 76 F. 517, 22 C. C. A. 306, certiorari denied 17 S. Ct. 994, 166 U. S..719, 41 L. Ed. 1186 ; (O. C. A. Iowa) Kerr v. Modem Woodmen of America, 117 F. 593, 54 C. C. A. 655 ; (C. C. A. Kan.) Vanars- dale V. Hax, 107 F. 878, 47 C. C. A. 31; Chicago. Ri. I. & P. Ry. Co. v. Stahley, 62 F. 363, 11 C. C. A. 88; (C. C. A. Md.) Fidelity Mut. Life Ass'n of PhUadelphia, Pa., v. Miller, 92 P. 63, 34 C. C. A. 211; (C. C. A. Mass.) Provident Sav. Life Assur. Soc. of New York V. Hadley, 102 F. 856, 43 C. C. A. 25, afiBrming -judgment Hadley v. Provident Sav. Life Assur. Soc. of New York (0. C.) 90 F. 390; Doyle V. Boston & A, R. Co., 82 F. 869, 27 C. C. A. 264 ; (C. C. A. Minn.) Griggs V. Nadeau, 250 F. 781, 163 C. C. A. 113; (C. C. A. Mo.) Aerheart v. St. Louis, I. M. & S. Ry. Co., 99 F. 907, 40 C. C. A. 171; (C. C. A. Ohio) Young V. Corrigan, 210 F. 442, 127 C. C. A. 174; (C. C. A. Pa.) Fuller v. New York Life Ins. Co., 199 F. 897, 118 C. C. A. 227; (O. C. Pa.) Butler v. Barret & Jordan, 130 P. 944; (C. C. A. Pa.) Martin v. Hughes, 98 F. 556, 39 C. C. A. 160; (C. C. A. Tenn.) Treece v. American Association, 122 F. 598, 58 C. C. A. 266. Illustrations of comment held proper within rule. A statement by the court that the meaning of the term "scalps," as used in the contract between the parties, has not been de- veloped by the testimony. Hansen v. Boyd, 161 U. S. 397, 16 S. Ct. 571, 40 L. Ed. 746. An instruction, in an ac- tion for injuries to a spectator at an amusement park by the bursting of a bomb, discharged as part of certain fireworks, that, if defendant's commit- tee employed a couple of Italians about whom they knew nothing to produce and discharge the fireworks, they did not exercise the prudence which an intelligent man would have exercised, and then stating, "For my- self I do not believe for a minute that they did any such thing, but that is a question of fact for you to determine, and not me." (C. C. A. N. Y.) Sebecb V. Plattdeutsche Volksfest Verein, 124 F. 11, 59 C. C. A. 531. 11 U. S. (C. C. A. Cal.) Schulze v. United States, 259 F. 189, affirming judgment United States v. Schulze (D. C.) 253 F. 377 ; Beyer v. United States, 251 F. 39, 163 C. C. A. 289; (C. C. A. Idaho) Kettenbach v. United States, 202 r. 377, 120 C. C. A. 505 ; (C. C. A. 111.) Keller v. United States, 168 F. 697, 94 C. C. A. 368; (C. C. A. Mass.) Mac- Knight v. U. S. 263 F. 832; (C. C. A. N. Y.) Oppenheim v. United States, 241 P. 625, 154 C. C. A. 383, reversing judgment United States v. Oppenheim (D. C.) 228 P. 220; (C. C. A. Ohio) Shea v. United States, 251 F. 440, 163 C. C. A. 458, writ of certiorari denied 248 U. S. 581, 39 S. Ct. 132, 63 L. Ed. 431; (C. C. A. P>a.) Hart v. United States, 84 F. 799, 28 C. C. A. 612, af- firming United States v. Hart (D. C.) 78 P. 868; (C. C. A. R. I.) Balcom v. United States, 259 F. 779, 170 C. C. A. 579, certiorari denied 40 S. Ct. 14, 250 U. S. 669, 63 L. Ed. 1198 ; (C. C. A. S. C.) Perkins v. United States, 228 P. 408, 142 C. C. A. 638; (C. C. A. Tenn.) Sylvia v. U. S., 264 F. 593 ; (C C. A. Va.) Morse v. United States, 255 F. 681, 167 C. O. A. 57. D. C. Maxey v. United States, 30 App. D. C. 63. Under such rule a statement of a federal judge that he does not see any way in which the defendants can be acquitted, while not to be approved, §4 INSTEUCTIONS TO JURIES submitted to the jury. In some of the state courts, also, this practice still obtains, in criminal ^' as well as in civil cases.'-^ As indicated by the foregoing statement such an expression of opin- ion will be erroneous, even at common law, unless accompanied by an instruction that the jury are not bound by the opinions of the court, or at least unless the jury are given clearly to understand in some part of the charge, that they are the exclusive judges of the facts." The greatest caution should be used in the exercise of such power of com- ment, that the jury may be left free and untrammeled in the determi- nation of questions of fact submitted to them." It follows that the is no ground for reversal. (C. O. A. Alaska) Bndleman v. United States, 86 F. 456, 30 C. 0. A. 186. 12 Conn. State v. Main, 52 A. 257, 75 Conn. 55. N. J, State V. Pulley, 82 A. 857, 82 N. J. Law, 579 ; State v. Schuyler, 68 A. 56, 75 N. J. Law, 487; State v. Simon, 58 A. 107, 71 N. J. Law, 142, affirmed 59 A. 1118. Pa. Commonwealth v. Ross, 110 A. 327, 266 Pa. 580; Commonwealth v. Marcinko, 89 A. 457, 242 Pa. 388; Commonwealth v. Leyshon, 44 Pa. Super. Ct. 507, 515 ; Commonwealth V. Scott, 38 Pa. Super. Ot. 303; Com- monwealth V. Martin, 34 Pa. Super. Ct. 451; Commonwealth v. Zuem, 16 Pa. Super. Ct. 588; Commonwealth v. Warner, 13 Pa. Super. Ct. 461. Opinion as to degree of offense. On trial for murder, the question of the degree thereof is for the jury, but the court in its instructions may ex- press its views as to the efCect of the evidence, if in them there is no inter- ference with the exclusive right of the jury to determine the degree. Com- monwealth V. FruccI, 64 A. 879, 216 Pa. 84. 13 Conn. Miller v. Perlroth, 110 A. 535, 95 Conn. 79 ; Smith v. Hausdorf, 103 A. 939, 92 Conn. 579; Dick v. Colonial Trust Co., 89 A. 907, 88 Conn. 93: Temple v. Gilbert, 85 A. 380, 86 Conn. 335 ; Houghton v. City of New Haven, 66 A. 509, 79 Conn. 659 ; Crot- ty V. City of Danbury, 65 A. 147, 79 Conn. 379. Minn. Presley Fruit Co. v. St. Louis, I. M. & S. Ry. Co., 153 N. W. 115, 130 Minn. 121 ; Larson v. Barlow, 127 N. W. 924, 112 Minn. 246; Bon- ness V. Felsing, 106 N. W. 909, 97 Minn. 227, 114 Am. St. Rep. 707; Ames V. Cannon River Mfg. Co., 27 Minn. 245, 6 N. W. 787. N. J. Chrisafldes v. Brunswick Mo- tor Co., 100 A. 196, 90 N. J. Law, 313; W. A. Manda, Inc., v. Delaware, L. & W. R. Co., 98 A. 467, 89 N. J. Law, 327 ; Merklinger v. Lambert, 72 A. 119, 76 i^. J. Law, 806; Foley v. Loughran, 38 A. 960, 39 A. 358, 60 N. J. Law, 464. Pa. Pool V. White, 175 Pa. 459, 34 A. 801, 38 Wkly. Notes Cas. 253; Fredericks v. Northern Cent. R. Co., 157 Pa. 103, 27 A. 689, 22 L. R. A. 306; Adams v. Uhler, 2 Walk. 96; Pennsylvania Co. v. Allen, 3 Penny. 170. Vt, Noyes v. Parker, 64 Vt. 379, 24 A. 12. In Michigan there are decisions ^hich hold that it is not error which will require the reversal of a judg- ment that a circuit judge indicates his views as to the credibility of a wit- ness or the weight of the evidence, if he expressly directs the jury to decide for themselves without reference to his views. Sheahan v. Barry, 27 Mich. 217. But there are decisions which point the other way. Richards V. Fuller, 38 Mich. 653. A fuller dis- cussion of the position of the Michi- gan courts with reference to this matter will be found in a subsequent chapter. !•* (C. C. A. Va.) Anderson v. Avis, 62 F. 227, 10 C. C. A. 347 ; (C. C. A. Wis.) Nyback v. Champagne Lumber Co., 109 F. 732, 48 O. C. A. 632 ; Char- ter V. Lane, 62 Conn. 121, 25 A. 464 ; Potts V. House, 6 Ga. 324, 50 Am. Dec. 329 ; Caldwell v. Kennlson, 4 Minn. 47 (Gil. 23), 77 Am. Dec. 499. IB (O. C. A. Mo.) Rudd v. United States, 173 F. 912, 97 C. C. A. 462; DEFINITIONS AND GENERAL CONSIDERATIONS §4 manner of expression by the court of its opinions must not be such as to be lil thieves is directed 1009; Bodenheimer v. Chicago &N. W. as a matter affecting the credibility of Ey. Co., 123 N. W. 148, 140 Wis. 623. the witnesses. Rohm v. Borland, 7 s4 Metcher v. Ketcham, 141 N. W. Atl. 171. 916, 160 Iowa, 364. *« De Long v. Giles, 11 111. App. 33 ; es Norwood v. State, 24 So. 53, 118 Burns v. People, 45 111. App. 70. Ala. 134. *7 State v. Tuttle, 66 N. E. 524, 67 bb Strickland v. State, 44 So. 90, Ohio St. 440, 93 Am. St. Rep. 689. 151 Ala. 31 ; City of Huntingburg v. *8 Bohlsen v. Bohlsen, 5 Ky. Law First, 53 N- E. 246, 22 Ind. App. 66; Rep. (abstract) 613; Ogden v. Ogden, E. Mt. L. Coal Co. v. Schuyler (Pa.) 6 Ky. Law Rep. (abstract) 310. 3 Leg. Gaz. 106. > *o Gordon r. State, 41 So. 847, 147 " Shorter v. Marshall, 49 Ga. 31. Ala. 42. °* Komazsewska v. West Chicago 5 State V. Allen, 87 P. 177, 34 Mont. St. R. Co., 76 111. App. 366 ; McMurrin 403; State v. Anderson, 89 P. 831, 35 v. Eigby, 80 Iowa, 322, 45 N. W. 877. Mont. 374. Impeachment by direct contra- il i.State V. Allen, 87 P. 177, 34 Mont, diction. Where a witness or witness- 403. es testifying on one side of a case are 5 2 Petrich v. Town of Union, 93 N, In direct conflict with a witness or W. 819, 117 Wis. 46. witnesses on the other side, it should 63 SegalofC V. Interurban St. Ry. Co. . (Sup.) 102 N. Y. S. 509 ; People v. ">» See note 59 on following page. §9 INSTRUCTIONS TO JURIES 2^ they may believe he has been impeached, unless such witness is cor- roborated by other evidence in the case.'" This is true, no matter how thoroughly a witness may have been impeached."^ Ordinarily it is error to instruct, or to intimate to, the jury, either in a civil or criminal case, that the testimony of an uncontradicted wit- ness can or should be disregarded because of its inherent improba- bility.*^ The mere fact that the court thinks that the testimony to- establish a material fact is incredible does not authorize it to instruct be left to the jury to judge of the credibility of the respective witnesses, and it is improper to Instruct them that they may disregard the testimony of one witness or set of witnesses on the ground that he or they have been impeached by direct contradiction. Peters v. Bourneau, 22 111. App. 177. An instruction that, as certain wit- nesses for the prosecution had contra- dicted each other, their testimony should be disregarded, was properly refused, on the ground that the jury, being the exclusive judges of the facts, may, as their judgment indi- cates, give efCect to the testimony of certain of the witnesses, and disre- gard that of others. State v. Bazlle, 23 So. 8, 50 La. Ann. 21. 09 Pentecost v. State, 107 Ala. 81, 18 So. 146; Sharp v. State, 16 Ohio St. 218; East Mt. LafEee Coal Co. v. Schuyler (Pa.) 1 Walk. 342 ; State v. Gaul, 152 P. 1029, 88 Wash. 295. Effect of cottTiction. A jury can- not lawfully be charged that a witness who has been convicted of burglary, and served out his term, is not en- titled to full credit. People v. Mc- Lane, 60 Cal. 412. Instruction that conviction can- not be had on testimony of im- peached witness. An instruction that the testimony of a single witness under a cloud, and who is contradict- ed in material matters, is not such preponderance of testimony as will warrant a conviction, and that, "if the jury find from the evidence this to be the condition of this case it is their duty to discharge the defendant," is properly refused, as invading the prov- ince of the jury. Gilyard v. State, 98 Ala. 59, 13 So. 391. 8 Oshorn v. State, 27 So. 758, 125 Ala. 106; Moore v. State, 68 Ala. 360; Addison v. State, 48 Ala. 478; Scog- gins V. State, 98 S. E. 240, 23 Ga. App.. 366; State v. Larson, 85 Iowa, 659, 52 N. W. 539. Requirement of corroboration. It is error to instruct that the testi- mony of an impeached witness is of no value, except when corroborated. Green v. Cochran, 43 Iowa, 544. Oa an indictment for an assault with intent to murder, a request to charge- the jury that "the testimony of a witness for the state, who Is shown to be unworthy of credit, is not suffi- cient t6 justify a conviction without corroboration, and such corroborating evidence, to avail anything, must be a fact tending to show the guilt of the- defendant held properly refused, as an invasion of the province of the jury. Nabors v. State, 82 Ala. 8, 2 So. 357. 61 Lay V. Fuller, 59 So. 609, 178 Ala. 375. 82 U. S. (C. C. A. Fla.) Post v. United States, 135 F. 1, 67 C. C. A. .569, 70 L. R. A. 989, reversing judg- ment United States'v. Post (D. C.) 128- F. 950, and rehearing denied 135 F., 1022, 67 C. C. A. 679, 70 L. R. A. 989 ; (C. C. A. N. J.) Beaumont v. Beau- mont, 152 F. 55, 81 O. C. A. 251. Ga. Louisville & N. R. Co. v. Trout,, 75 S. E. 328, 138 Ga. 324. 111. Bressler v. People, 117 111. 422, 3 N. E. 521; Id., 117 111. 422, 8 N. E.. 62. Tex. Bishop V. State, 43 Tex. 390 ; Searcy v. State, 1 Tex. App. ,440. In Pennsylvania, it is not error for the trial judge to comment on tha- testlmony of a witness and to call at- tention to its inherent probabiljty or improbability. If he does it fairly, and leaves the question of his credibility to the jury. McNelle v. Cridland, 6- Pa. Super. Ct. 428. 23 CEEDIBILITT OF WITNESSES AS A JURY QUESTION § 11 the jury to cast it aside."^ However, the facts may be such as to make the testimony of a witness incredible as a matter of law, in which case it will be error for the court to refuse an instruction to that effect.** This rule applies where the testimony of a witness is contrary to the physical facts."' The jury may be told that they are not bound to accept as true a statement of fact made on the witness stand, if from all other facts and circumstances in evidence they believe that such statements are not true,"' and the court may, in its discretion, tell the jury that they are not bound to believe the testimony of a witness because it is con- tained in a deposition, any more than they would if he testified from the witness stand."' § 10. Negative directions as to consideration of matters bearing on credibility It is error not to permit the jury to consider matters bearing on the credibility of the witnesses."* Thus it is improper to instruct the jury not to regard slight variances between the testimony of witnessesj"" or to give instructions preventing the jury from considering circum- stances tending to show bias.''" On the other hand, the court may instruct that the doing of certain acts by a witness within his legal right to do shall not be considered upon the question of his credi- bility.'^ § 11. Positive directions as to matters to be considered in deter- mining question of credibility Necessity and sufficiency of instructions on particular matters affecting credi- bility, see post, §§ 153-156. In one jurisdiction it is held that the law has not prescribed as tests of the credibility of witnesses their demeanor, intelligence, prejudice, etc.,'^ and that it is error to refer, even in a general way, es Curry v. Curry, 114 Pa. 367, 7 is held to be on the weight of the A. 61. evidence. Ft. Worth & D. C. Ry. Co. 64 Hagglund v. Erie R. Co., 103 N. v. Osborne (Civ. App.) 26 S. W. 274 ; B. 770, 210 N. Y. 46, reversing judg- Dwyer v. Bassett, 63 Tex. 274. ment 133 N. Y. S. 1124, 148 App. Div. nr Johnson County Sav. Bank v. 935. Walker, 65 A. 132, 79 Conn. 348. 6 5 McClanahan v St. Louis & S. F. as Bodenheimer v. Chicago & N. W. R. Co., 126 S. W. 535, 147 Mo. App. Ry. Co., 123 N. W. 148, 140 Wis. 623. 386. "' State v. Swayze, 11 Or. 357, 3 P. 66 Goss Printing-Press Co. v. Lemp- 574. ke, 90 111. App. 427, judgment af- '"> Moore v. Nashville, C. & St. L. firmed 60 N. B. 968, 191 111. 199 ; Ry., 34 So. 617, 137 Ala. 495. Price V. Lederer, 33 Mo. App. 426. ''i Calhoun, Denny & Ewing v. Whit- Rule in Texas. In this jurisdic- comb, 155 P. 759, 90 Wash. 128. tion an instruction that the jury may 72 Houston, B. & W. T. Ry. Co. v. discredit the testimony of an unim- Runnels, 47 S. W. 971, 92 Tex. 305, peached and uncontradicted witness reversing judgment (Civ. App.) 46 S. on account of attendant circumstances W. 394. 8 11 INSTRUCTIONS TO JDEIES 24 to such elements as matters to be considered in determining such credibility, on the ground that such an instruction is calculated to give the jury the impression that the court is of the opinion that such mat- ters affect the weight to be given to the testimony of some particular witness, whose manner of testifying may be peculiar, or who may have admitted interest, bias, or prejudiced' But the general rule is that it is not error for the court to instruct that the jury may consider various ehumerated elements in passing on the question of the credibility of the witnesses,'* and that it is proper to instruct that the jury may con- sider upon such question the relation of the witnesses to the parties, their interest, temper, bias, demeanor, and intelligence.'^ The decisions are not entirely harmonious as to the right of the court to instruct the jury in language expressive of their obligation to consider such matters. In some jurisdictions the court must not tell the jury that they must or should, as a matter of law, take into consideration certain things in passing upon such qiiestion of cred- ibility.'* In Illinois it is proper to instruct the jury that they should take into consideration various matters in determining the credibility of each witness on the stand, where all the matters enumerated are such as may affect the estimate by the jury of such credibility; the use of "may" not being considered necessary." In Indiana, the later cases and some of the earlier ones,'* at variance with some of the early cases in this jurisdiction,'" hold that the use of the words "should" or "must," rather than a less mandatory form of expression, is not error; the theory being that such words only imply duty to consider, the weight to be given to the various matters suggested being another thing. In another jurisdiction it is held in a criminal case that it is not proper for the court to direct the jury as to the method by which it shall exercise its powers,'" it also being held in this jurisdic- tion, however, that an instruction that the degree of credit due a wit- ness should be determined by various elements detailed therein is not reversible error.'* 73 Kellogg V. McCabe, 38 S. W. 542, re state v. Rosa. 62 A. 695, 72 N. 14 Tex. Civ. App. 598. .T. Law. 462; Brady v. Cassidy (Com. 74 lU. La Fevre v. Du Brule, 71 PI.) 9 Misc. Rep. 107, 29 N. Y. S. 45, 111. App. 263. ,1udgment affii-med 145 N. Y. 171, 39 N. Ind. Shular v. State, 105 Ind. 289, E. 814. 4 N. E, 870, 55 Am. Rep. 211; Stanley 7 7 People v. Lalor, 124 N. E. 866, V. Montgomery, 102 Ind. 102, 26 N. B. 290 111. 234. 213. 7 8 Lynch v. Bates, 38 N. E. 806, 139 Iowa. Stewart v. Anderson, 82 N. Ind. 206 ; Robertson v. Monroe, 7 Ind. W. 770, 111 Iowa, 329. App. 470, 33 N. E. 1002. Mont. White v. Chicago, M. & P. 7 9 Pennsylvania Co. v. Hunsley, 54 S. Ry. Co., 143 P. 561, 49 Mont. 419. N. E. 1071, 23 Ind. App. 37. Pa, Williams v. Moore, 43 A. 1022, so People v. Newcomer, 50 P. 405 192 Pa. 211. 118 Cal. 263. 7 Klepsch V. Donald, 4 Wash. 436, si People v. Bene, 62 P. 404, 130 30 P. 991, 31 Am. St. Rep. 936. Cal. 159. 25 CREDIBILITY OF WITNESSES AS A JURY QUESTION §12 § 12. Instructions as to comparative credibility of different classes of witnesses The court should not classify the witnesses,'^ and it is error to charge, and proper to refuse to charge, that any witness or class of witnesses shall receive greater consideration than any other class, or to make a distinction between different classes of witnesses as to their credibility, whether because of superior intelligence, better means of information, the affirmative character of the testimony given, or other reasons. °^ Thus it is an erroneous usurpation of the function of the jury to instruct them that one credible witness is worth more than many witnesses who the jury may and do believe have knowingly tes- tified untruthfully on any material point, and are not corroborated by other credible witnesses,^* and an instruction that Indian witnesses are entitled to as much credit as white men is improper. ^° But the court may charge that the jury should not reject the testimony of a witness on account of his race.*' 82 state V. Tattle, 66 N. B. 524, 67 Ohio St. 440, 93 Am. St. Rep. 689. 83 Ala. Cummings v. McDonnell, 66 So. 717, 189 Ala. 96; Crane v. State, lU Ala. 45, 20 So. 590. Del. State V. Long, 108 A. 36, 7 Boyce, 397. 111. Village of Des Plaines v. Win- kelman, 110 N. E. 417, 270 111. 149; Belskis V. Bering Coal Co., 146 111. App. 124; Barron v. Burke, 82 111. App. 116; Hope v. West CMcago St. R. Co.. 82 111. App. 311; Chittenden V. Evans, 41 111. 251 ; Tundt v. Hart- runft, 41 111. 9. Imd. Muneie, H. & Ft. W. Ry. Co. ' V. Ladd, 76 N. E. 790, 37 Ind. App. 90; Winklttbleck v. Winklebleck, 67 N. E. 451, 160 Ind. 570; Jones v. easier, 38 N. E. 812, 139 Ind. 382, 47 Am. St. Rep. 274. N. Y. Durst V. Ernst, 91 N. Y. S. 13, 45 Misc. Rep. 627. InstTnctions objectionable Tvith- in Tule. An instruction that if there is a conflict in the evidence of the witnesses who testified in a case, and the jury cannot reconcile that evi- dence, they should believe that wit- ness or those witnesses who have the best opportunity of knowing the facts about which they testify, and the least inducement to swear falsely. Wall v. Crown Cotton Mills, 65 S. E. 788, 6 Ga. App. 732 ; Southern Mut. Ins. Co. V. Hudson, 38 S. E. 964, 113 Ga. 434 ; Hudson V, Best, 30 S. E. 688, 104 Ga. 131. Instructions not obnoxious to rule. An instruction that the credi- bility of the witness is a question ex- clusively for the jury, and that they have a right to determine from the appearance of witnesses on the stand, their manner of testifying, their ap- parent candor apd fairness, their ap- parent intelligence or lack of intelli- gence, and frotn all' the other sur- rounding circumstances appearing on the trial, which witnesses are the more worthy of credit, is not ob- jectionable on the ground that it in- structs the jury that an intelligent, witness is more credible than an Ig- norant one. North Chicago St. R. Co. V. Wellner, 69 N. E. 6, 206 111. 272, affirming judgment 105 111. App. 652. 84 Henderson v. Miller, 36 111. App. 232. SB Campbell v. United States (C. C. A. Alaska) 221 F. 186, 136 C. C. A. 602. 8 6 McDaniel v. Monroe, 41 S. E. 456, 63 S. 0. 307. § 13 INSTRUCTIONS TO JURIES 26 § 13. Jury to determine question of interest and the credibility of interested witnesses The court should not tell the jury that a particular witness is or is not interested,*' or suggest that the servants or agents of a party called- as witnesses may have an interest that will afifect their testimony.*^ The question of the credibility as witnesses of the parties to a suit, or other persons having an interest in its result, is for the jury, who should be left at full liberty to believe or to disbelieve such witnesses.** Accordingly an instruction that if a party testifying as a .witness is corroborated the jury have no right to disbelieve him is erroneous,'" and it is error to give, and proper to refuse to give instructions which cast suspicion or distrust on the testimony of a party, '^ or to instruct that the testimony of a witness, who is also a party, is to be received with caution,'^ or that such testimony is to be disregarded, if contra- dicted by the testimony of unimpeached witnesses,"^ or that^the jury may disregard the testimony of any witness interested in the. result of the trial.'* In accordance with the rule above stated '° it is error to charge, and proper to refuse to charge, that the testimony of an uninterested wit- ness should be given more weight than that of an interested one,'* or to charge that, when the witnesses appear to he 'equally credible in every other respect, the one who appears to have the greater interest 87 Swan V. Oarawan, 84 S. E. 699, v. Chicago, ' R. I. & P. E,y. Co., 61 168 N. C. 472. Iowa, 434, 16 N. W. 336. 8 3 Solomon R. Co. v. Jones, 34 Kan. 02 Colon type Co. v. Williams (C. ,C. 443, 8 P. 730. A. N. Y.) 78 F. 450, 24 C. C. A. 163. 8 8 New Orleans, J. & 6. N. R. Co. v. ssDelvee v. Boardman, 20 Iowa, Allbritton, 38 Miss. 242, 75 Am. Dec. 446. 98; Allen V. Lyles, 35 Miss. 513 ; Van si Rucker v. State (Miss.) 18 So. Doren v. Jelllfife (Com. PI.) 1 Misc. 121 ; McEwen v. State (Miss.) 16 So. Rep. 354, 20 N. T. S. 636, affirming 242. . judgment (City Ct. N. Y.) 16 N. Y. S. as Ante, § 9. 209 ; McGulre v. Ogdensburg & L. 0. oe Ala. Louisville & N. R. Co. v. R. Co., 63 Hun, 6-32, 18 N. Y. S. 313. Watson, 90 Ala. 68, 8 So. 249. 00 Duygan v. Third Ave. R. Co. D. o. Metropolitan R. Co. v. Jones, (City Ct. N. Y.) 6 Misc. Rep. 66, 26 1 App. D. C. 200. N. Y. S. 79. Imd. Dodd v. Moore, 91 Ind. 522 ; 01 Smith V. Woolf, 49 So. 395, 160 Nelson v. Vorce, 55 Ind. 455. Ala. 644 ; Dow v. City of Oroville, 134 Neb. Omaha Belt Ry. Co. v. Mc- P. 197, 22 Cal. App. 215. Dermott, 25 Neb. 714, 41 N. W. 648. Hopes and fears of witnesses. N. O. State v. Jenkins, 85 N. C. In an action against a railway com- 544. pany for injuries to an employ^, in- Rule in Iowa. In this jurisdiction structions that the jury should take it is held that, other things being into consideration "the hopes and equal, it is not error to give such an fears" of the witnesses in determining instruction, although it is better not their credibility, does not cast doubt to do so. Bonnell V. Smith, 53 Iowa, on the witnesses' veracity. Hatfield 281, 5 N. W. 128. 27 CE EDIBILITY OF WITNESSES AS A JURY QUESTION § 14 in the result of the case is to have the less weight,"' and it is error to charge that the testimony of a witness against himself should be ac-' corded more weight than his testimony in favor of himself.®' In Missouri, in civil cases, the later decisions hold that an instruction which undertakes to value the testimony of a party against his inter- est, as compared with that in his own favor, and to tell the jury that the former testimony may be taken as true, but that the latter should be given only such credit as the jury may think it is entitled to, is erroneous, as usurping the province of the jury ; "" but in criminal cases in this jurisdiction such an instruction, while criticized, is held not to be reversible error. ^ § 14. Right or duty of jury to consider interest of witness Necessity and sufficiency of instructions on question of interest of witness, see post, § 159. As a general rule it is proper for the court to give an instruction, applicable generally to all the witnesses, that the jury may consider the interest that any witness may have in the event of the trial in pass- ing upon his credibility,^ and in some jurisdictions it is not error un- der some circumstances to single out a particular party testifying as a witness, and instruct that the jury may take the fact of his interest in the outcome of the trial into consideration.' Such an instruction should not be given where the witnesses for the other side are also in- terested in the result ; * and in Missouri in civil," and now in criminal, cases it is reversible error to instruct that, while the law permits a party to testify in his own behalf, the jury, in considering the credence to be given to his testimony, may consider the fact that he is a party and is interested in the result of the suit.® In Texas, under the statute prohibiting the trial judge from commenting on the 9T Lee V. State, 74 Wis. 45, 41 N. to the testimony of witnesses In ttie W. 960. employ of one of the parties, that 8 Douglass' Estate v. Fullerton, 7 if. from the evidence, they believe 111. App. 102. they testified in fear of losing their 99 Brown v. Quincy, O. & K. O. R. f^ployment, they may take such fact Co., 106 S. W. 551, 127 Mo. App. 614 ; if *° „*=?? ®^'^®'^^*^°'i- ?^°''H„ ^?'^ Zander v. St. Louis Transit, Co., 103 J°^«« ^o. v. Sargeant, 40 111. App. S. W. 1006, 206 Mo. 445. 8 Croupp V. Garfield Park Sani- i^R^^llt J-v^?trnnwW Jf 1^7 ^'1 t^^™' 147 111. App. 7; Chicago City i^ w «9« • ' ' Ky. Co. V. Olis, 94 111. App. 323, judg- 15. w. Odd. mgnt affirmed 61 N. E. 459, 192 111. 2 Lovely v. Grand Rapids & I. Ry. 514. Co., 100 N. W. 894, 137 Mich. 653 ; i Bailey v. Niebruegge, 211 111. App Territory v. Taylor, 71 P. 489, 11 N. 82. M. 588 ; Kavanaugh v. City of Wau- 5 Copeland v. American Cent. Ins. sau, 98 N. W. 550, 120 Wis. 611. Co„ 138 S. W. 557, 158 Mo. App. 338. Fear of losing employment. e State v. Finkelstein, 191 S. W. The court may instruct, with respect io02, 269 Mo. 612. §14 INSTKTJCTIONS TO JUEIBS 28 evidence, an instruction that the jury may take the interest of a witness- into consideration is error. '^ As above indicated, the authorities are conflicting as to whether it is proper for the court to instruct that the jury "should" consider the interest of a witness in a judicial controversy in determining his cred- ibility. Perhaps the greater weight- of authority upholds such an in- struction.* In Indiana the later cases,* overruling some of the earlier ones, hold that such an instruction is not objectionable because of the use of the words "should" or "must," instead of the words "might" or "may." " In Illinois it is held that either the wbrds "may" or "should" are proper, both forms meaning substantially the same thing.^^ In Missouri such an instruction is disapproved.^^ § 15. Credibility of accused as question for jury It is within the exclusive domain of the jury to pass upon the credi- bility of one defending against a criminal accusation and testifying as a witness,^' and instructions disparaging the testimony of such an ac- 7 St. Louis & S. F. R. Co. v. Sproule, 101 S. W. 268, 45 Tex. Civ. App. 615; Daggett V. State, 44 S. "W. 842, 39 Tex. Cr. Ri. 5; Penny v. State. (Tex. Cr. App.) 42 S. W. 2^7; I sham v. State (Tex. Cr. App.) 41 S. W. 622; Williams v. State (Tex. Cr. App.) 40 S. W. 801. Where only one witness has a real pecnniary interest in a Suit, it is held, in this jurisdiction, that such an instruction, general in, form, is in effect a charge that the jury should consider the interest of such witness. Willis V. Whitsitt, 67 Tex. 673, 4 S. W. 253. 8 Salazar v. Taylor, 18 Colo. 538, 33 P. 369; Herndon v. Southern Ry. Co., 78 S. B. 287, 162 N. C. 317; Speight V. Seaboard Air Line Ry., 76 S. E. 684, 161 N. O. 80; Oliver v. Columbia, N. & L. R. Co., 43 S. E. 307, 65 S. C. 1. Ind. Mishler v. Chicago, S. B. & N. I. Ry. Co. (App.) Ill N. E. 460, rehearing denied 113 N. E. 310; Pittsburg, C, C. & St. L. Ry. Co. v. Chappell, 106 N. E. 403, 183 Ind. 141, Ann. Cas. 1918A, 627; In re Darrow, 92 N. E. 369, 175 Ind. 44; Southern Ry. Co. v. State, 75 N. E. 272, 165 Ind. 613; Strebin v. Labengood, 71 N. E. 494, 163 Ind. 478 ; Fifer v. Rit- ter, 64 N. E. 463, 159 Ind. 8. In an early case it was held in this Jurisdiction that an instruc- tion that the jury are the exclusive judges of the credibility of witnesses, and that they should consider the re- lationship 'of the witnesses to' the par- ties, their interest, their apparent candor and intelligence, and other matters of like character, so far as observable in evidence or from their demeanor on the stand, does not make it the duty of the jury, as matter of law, to detract from the weight of the testimony of an interested witness, and hence does not invade the prov- ince of the jury. Young v. Gentis, 7 Ind. App. 199, 32 N. E. 796. 10 Wabash R. Co. v. Biddle, 59 N. E. 284, 27 Ind. App. 161; Lynch v. Bates, 38 N. E. 806, 139 Ind. 206; Duvall V. Kenton, 127 Ind. 178, 26 N. E. 688 ; Woollen v. Whitacre, 91 Ind. 502. 11 Chicago & B. R. Co. v. Meech, 45 N. E. 290, 163 111. 305; Brown v. Walker, 82 111. App. 199. 12 Kansas City, N. & Ft. S. R. Co. v. Dawley, 50 Mo. App, 480. IS Ark. Douglass v. State, 121 S. W. 923, 91 Ark. 492. ria. Ballard v. State, 31 Fla. 266, 12 So. 865. 111. People V. Sehrer, 196 111. App. 442; Same v. Clayton, 196 111. App. 445; Rider v. People, 110 111. 11. Ky. Commonwealth v. Thomas, 104 S. W. 326, 31 Ky. Law Rep. 899. N. Y. People v. Biddison, 121 N. 29 CREDIBILITY OF WITNESSES AS A JURY QUESTION 15 cused person, or implying lack of confidence in it, or that there is some doubt as to whether it is entitled to any weight, are erroneous.^* This rule applies to unsworn statements made t>y the accused.^" Y. S. 129, 136 App. Div. 525, judg- ment affirmed 93 N. E. 378, 199 N. T. 584; People v. McDonald, 54 N. B. 46, 159 N. Y. 309 ; Newman v. People, 63 Barb. 630. Okl. Powell V. State, 150 P. 92, 11 Okl. Or. 615 ; Walnscott v. State, 129 P. 655, 8 Okl. Cr. 590. Tex. McCormlck v. State, 216 S. W. 871, 86 Tex. Cr. R. 366 ; Nowlin v. State, 175 S. W. 1070, 76 Tex. Cr. R. 480; TUmyer v. State, 126 S. W. 870, 58 Tex. Cr. R. 562, 137 Am. St. Rep. 982 ; Ross v. State, 29 Tex. 499. whether defendant successfully impeached. Where witnesses testi- fied that defendant's reputation for truth and veracity in the neighbor- hood in which he lived was bad, and that they would not believe him under oath, and such evidence was not con- tradicted, the question whether de- fendant was successfully impeached was for the jury. Carle v. People, 66 N. E. 32, 200 111. 494, 93 Am. St. Rep. 208. Sufficiency of explanation by de- fendant of incriminating circum- stances. The explanation of one in possession of the fruits of a crime is for the jury, unless the explanation was so clearly satisfactory that it was unreasonable for the jury to dis- regard it. State V. Curtis, 161 P. 578, 29 Idaho, 724. 1* U. S. Hickory v. United States, 160 U. S. 408, 16 S. Ct. 327, 40 L. Ed. 474; Hicks v. United States, 150 U. S. 442, 14 S. Ct. 144, 37 L. Ed. 1137. Fla. Hampton v; State, 39 So. 421, 50 Fla. 55; Andrews v. State, 21 Fla. 598. Ga. Roberson v. State, 81 S. B. 798, 14 Ga. App. 557. 111. Lambert v. People, 34 111. App. 637. Mo. State v. Porter, 111 S. W. 529, 213 Mo. 43, 127 Am. St. Rep. 589. NcT. State v. Johnson, 16 Nev. 36; Same v. Vasquez, Id. 42. N. C. State V. Collins, 118 N. C. 1203, 24 S. E. 118. Pa. Commonwealth v. Pipes, 158 Pa. 25, 27 A. 839, 33 Wkly. Notes Cas. 237. S. C. State V. Wyse, 32 S. O. 45, 10 S. E. 612 ; State v. Caddon, 30 S. C. 609, 8 S. E. 536; State v. Addy, 28 S. C. 4, 4 S. E. 814. Tex. Johnson v. State, 90 S. W. 633, 49 Tex. Cr. R. 106. Wash. State v. White, 10 Wash. 611, 39 P. 160. Illustrations of instructions ob- noxious to rule. An instruction, where only issue was self-defense that jury should not accept defendant's testimony Ijlindly, or unless corrob- orated, but might consider its truth, taking into account defendant's in- terest, as bearing on his credibility. State V. Lundhigh, 164 P. 690, 30 IE Fla. Miller v. State, 15 Fla. 57'^' Ga. Daniel v. State, 88 S. B. 694, 17 Ga. App. 774 ; Slaughter v. State, 86 S. E. 741, 17 Ga. App. 332; Field V. State, 55 S. E. 502, 126 Ga. ^71; Inman v. State, 72 Ga. 269; Wilson V. State, 69 Ga. 224; Day v. State, 63 Ga. 667; Pease v. State, 63 Ga. 631. Instructions not erroneous un- der rule. An instruction that de- fendant has a right to make a state- ment to the jury which is not under oath, and the jury may believe it in preference to the sworn testimony in the case, or may disregard it, is not erroneous as excltiding the jury from the privilege of believing the state- ment in part and rejecting it in part. Suple V. State, 66 S. E. 919, 133 Ga. 601. After instructing the jury in the language of the statute that they were authorized to believe the defendant's statement in preference to the evi- dence In the case, the addition by the judge of the words: "But you are not under any obligation to do so or not to do so. The law simply gives you power to do so, if you Jbelieve it is the truth" — Is not error, as a dis- paragement of the statement, or as impressing the jury with the idea that they were under no obligation to believe defendant's statement. Stevens v. State, 68 S. B. 874, 8 Ga App. 217. §15 INSTRUCTIONS TO JURIES .30 It is error, where the accused is a witness in his own behalf, to charge that, in general, a witness who is interested will not be as honest, candid, and fair as one who is not,'' or to give an instruction tending to mislead the jury into the belief that the evidence of interested parties is to some extent discredited, although the jury may think them honest and truthful,^'' or to charge, as a matter of law, that the jury may disre- gard the testimony of defendant because of his interest in the matter, if in conflict with other evidence.^' On the other hand, it is error to instruct, and proper to refuse to instruct, that the jury should not dis- regard the statement or testimony of the accused simply because he is the defendant,'" or that the same consideration shall be given to the testimony of the defendant, or to his testimony when corroborated, as to that of any other witness."" Idaho, 365. Instructions tbat the jury were "not bound to believe the evi- dence of the defendant In a criminal case and treat it the same as the evi- dence of other witnesses." Chambers V. People, 105 111. 409. An instruction which singles out accused as a wit- ness to call special attention to the weight and defects of his testimony, and to declare exclusive rules by which his testimony alone is to be con- sidered, and in effect tells the Jury that, however unworthy of belief he may be, the jury must give some weight to his testimony. People v. Oliver, 95 P. 172, 7 Oal. App. 601. An instruc- tion that a defendant In a criminal trial is a competent witness in his own behalf, and his evidence should not be discarded for 'the sole reason that he is the defendant, but that the jury are to take that fact into consideration in determining the cred- it to be given his testimony ; that they are the sole judges of the cred- ibility of witnesses ; and that, if they believe a witness testified falsely to any material fact, they may disregard the whole or any part of his testi- mony. State V. Hobbs, 117 Mo. 620, 23 S. W. 1074; State v. Austin, 21 S. W. 31, 113 Mo. 538. Instructions not objectionable within rule. An Instruction, in a prosecution for homicide, that there was nothing shown to justify or ex- cuse the killing, under the law, is not objectionable as a criticism on de- fendant's credibility as a witness, where defendant's testimony does not support a claim of self-defense as a matter of law. Hicklin v. Territory, 80 P. 340, 9 Ariz. 184. Instruction on effect o£ contra- diction of defendant. An instruc- tion regarding the weight to be ac- corded accused's testimony, "and you are also to take into consideration the fact, if such is the fact, that he has been contradicted by other credible witnesses," was not objectionable, be- cause of the mandatory character of the word "are," or as assuming as a fact that accused had been contradict- ed, or as stating that accused's testi- mony should be disbelieved, if con- tradicted. People V. Meyer, 124 N. E. 447, 289 111. 184. In New Jersey, a charge intimat- ing that the jury are not bound to accept as verity the testimony of the accused, given in his own behalf, will not justify a reversal. State v. Rom, 72 A. 431, 77 N. J. Law, 248. 18 Greer v. State, 53 Ind. 420; Holmes v. State, 123 N. W. 1043, 85 Neb. 506 ; Beddeo v. State, 123 N. W. 1044, 85 Neb. 510. 17 state V. HoUoway, 117 N. C. 730, 23 S. E. 168. 18 Allen V. State, 87 Ala. 107, 6 So. 370. 18 Stevens v. State, 35 So. 122, 138 Ala. 71; People v. Winters, 57 P. 1067, 125 Cal. 325. 20McKee v. State, 82 Ala. 32, 2 So. 451; Blackburn v. State, 71 Ala. 319, 46 Am Rep. 323 ; People v. Pier- son, 2 Idaho, 71, 3 P. 688; Clark v. State (Tex. Cr. App.) 59 S. W. 887. 31 CBEDIBIUTY OF WITNESSES AS A JURY QUESTION §16 § 16. Right or duty of jury to consider interest of accused Necessity and sufficiency of instructions on this head, see post, §§ 166-171. An instruction, framed in general terms applicable to all witnesses, that the jury, in determining the credibility of witnesses, may consider their character and appearance, the consistency and reasonableness of their statements, the interest, if any, they may feel in the case, etc., does not invade the province of the jury, although the defendant tes- tifies in his own behalf,^'- and it is generally held that it is proper to instruct that the jury may consider the interest of an accused in the verdict to be rendered and his relation to the offense charged as affect- ing his credibility as a witness.^^ 2iFelker v. State, 54 Ark. 489, 16 S. W. 663 ; People v. Waysman, 81 P. 1087, 1 Cal. App. 246. In Missonri, an instruction, where the defendant testifies, that the jury are the .sole judges of the credibility "of the witnesses," and will consider their character, manner on the stand, interest, relation to the parties, and probability of statements, as well as all circumstances in evidence, is not erroneous; it being held that "wlU" has not an imperative force, like the word "shall." State v. Hilsabeck, 132 Mo. 348, 34 S. W. 38. 22 Ala, Smith v. State, 107 Ala. 139, 18 So. 306 ; Dryman v. State, 102 Ala.- 130, 15 So. 433; Norris v., State, 87 Ala. 85, 6 So. 371. Ark. Denton v. State, 198 S. W. Ill, 131 Ark. 1. Cal. People v. Hitchcock, 104 Cal. 482, 38 P. 198. Contra. People v. Bartol, 142 P. 510, 24 Cal. App. 659. 111. Siebert v. People, 143 111. 571, 32 N. E. 431, distinguishing Purdy v. People, 140 lU. 46, 29 N. E. 700. Kan. State v. Bursaw, 87 P. 183, 74 Kan. 473. Mich. People V. Dumas, 125 N. W. 766, 161 Mich. 45; People v. Resh, 107 Mich. 251, 65 N. W. 99. Mo. State v. Maguire, 113 Mo. 670, 21 S. "W. 212 ; State v. Wells, 111 Mo. 533, 20 S. W. 232 ; State v. Ihrig, 106 Mo. 267, 17 S. W. 300; State v. Mc- Ginnis, 76 Mo. 326; State v. Maguire, 69 Mo. 197. Contra, State v. Clark (Mo. App.) 202 S. W. 259. Neb. Housh v. State, 43 Neb. 163, 61 N. W. 571 ; Clark v. State, 32 Neb. 246, 49 N. W. 367. N. M. Territory v. Taylor, 71 P. 489, 11 N. M. 588 ; Territory v. Kom- ine, 2 N. M. 114. Op. State v. Tarter, 26 Or. 38, 37 P. 53. Pa. Commonwealth v. Orr, 138 Pa. 276, 20 A. 866. "IVasli. State v. McCann, 49 P. 216, 16 Wash. 249 ; Id., 47 P. 443, 16 Wash. 249; State v. Carey, 46 P. 1050, 15 Wash. 549; State v. Nordstrom, 7 .Wash. 506, 35 P. 382. Wyo. Haines v. Territory, 3 Wyo. 167, 13 P. 8. In the federal court, where the defendant testifies in his own behalf, the court is not at liberty to charge the jury, directly or indirectly, that he is not to be believed, because he is the defendant; but, on the other hand, it may, and sometimes ought, to remind the jury that interest creates a motive for false testimony ; that the greater the interest the stronger the temptation; and that the interest of the defendant, being of a character not possessed by other witnesses, is a matter which may seriously affect the credibility of his testimony. Reagan V. United States, 157 U. S. 301, 15 S. Ct. 610, 39 L. Ed. 709. In Illinois, in conhection with such an instruction, the jury should be told that the same tests are to be applied to the testimony of the defendant as to the testimony of any other witness. People V. Harvey, 122 N. E. 138, 286 111. 593. In liouisiania, under a constltu~ tional provision. It is error to give § 16 INSTRUCTIONS TO JURIES 32 In some jurisdictions it is proper to charge that the jury "should" or "must" consider the interest of the accused in passing upon his cred- ibi'lity as a witness,^^ but in other jurisdictions this is error.^* In Missouri the later decisions,''^ overruling the earlier ones,^® hold that the permissive form "may" shouM be used rather than "should," al- though this question is now a merely academic one under the recent de- cisions.^' In Texas it is held that the statutory prohibition in that state against charging upon the weight of evidence prohibits the court from singling out a witness and instructing the jury as to any tests they are to apply in determining his credibility, and consequently it is error in this state to charge that in passing upon the credibility of an ac- cused the jury should consider his interest in the result of the trial."' such an Instrudtion. State v. Smith, 65 So. 598, 135 La. 427; State v. Car- roll, 64 So. 868, 134 La. 965. In Texas, the rule seems to be that calling the attention of the jury to the interest of the accused in the result of the trial is error, and that an in- struction in general terms that, in de- termining the credibility of conflicting witnesses, the jury may consider their interest in the case, is, when defend- ant, has testified, reversible error. Harrell v. State, 40 S. W. 799, 37 Tex. Cr. R. 612 ; Oliver v. State (Cr. App.). 42 S. W. 554 ; Shields v. State, 44 S. W. 844, 39 Tex. Cr. R. 13. There are, however, decisions that such a general instruction is not erroneous, as calcu- lated to call the attention of the jury to the interest of the defendant. Mc- Grath v. State, 35 Tex. Cr. R. 413, 34 S. "W. 127, 941; Cockerell v. State, 32 Tex. Cr. R. 585, 25 S. W. 421. 28 Mich. People v. Calvin, 60 Mich. 113, 26 N. W. 851 ; People v. Herrick, 59 Mich. 563, 26 N. W. 767. Net, Johnson v. State, 34 Neb. 257, 51 N. W. 835; St. Louis v. State, 8 Neb. 418, 1 N. W. 371. N, T. People- v. Crowley, 102 N. T. 234, 6 N. E. 384. OW. Rhea v. United States, 50 P. 992, 6 Okl. 249 ; Territory v. Gatliflf, 37 P. 809, 2 Okl. 523. 2* Ala. Adams v. State (App.) 75 So. 641 : Swain v. State, 62 So. 446, 8 Ala. App. 26 ; Pugh v. State, 58 So. 936, 4 Ala. App. 144 ; Tucker v. State, 52 So. 464, 167 Ala. 1. Imd. Hartford v. State, 96 Ind. 461, 49 Am. Rep. 185. In California, the early decisions allowed the use of "should." Peo- ple V. Knapp, 71 Oal. 1, 11 P. 793; People V. O'Neil, 7 P. 790, 67 Cal. 378; People V. Wheeler, 65 Cal. 77, 2 P. 892. But the later decisions are to the ef- fect that no instructions, either requir- ing or permitting the jury to consider the interest of the accused, should be given. People v. Blunkall, 161 P. 997, 31 Cal. App. 778; People v. Bartol, 142 P. 510, 24 Cal. App. 659; People V. Borrego, 95 P. 381, 7 Cal. App. 613 ; People V. Van Ewan, 43 P. 520,- 111 Cal. 144. 20 State V. Fairlamb, 121 Mo. 137, 25 S. W. 895. 2 8 Mo. State v. Renfrew, 111 Mo. 589, 20 S. W. 299; State v. Mounce, 106 Mo. 226, 17 S. W. 226, following State V. Young, 105 Mo. 634, 16 S. W. 408; State v. Morrison, 104 Mo. 638, 16 S. W. 492; State v. Brown, 104 Mo. 365, 16 S. W. 406; State v. Young, 99 Mo. 666, 12 S. W. 879; State V. Cook, 84 Mo. 40; Same v. Wisdom, Id. 177. 27 State v. Pace, 192 S. W. 428, 269 Mo. 681. 28Mue]y V. State, 31 Tex. Cr. R. 155, 19 S. W. 915, reversing 18 S. W. 411. 33 CREDIBILITY OF WITNESSES AS A JURY QUESTION § 19 § 17. Lack of corroboration of accused In some jurisdictions, in a criminal case, it is not improper to call the attention of the jury, under some circumstances, to the fact that the testimony of the defendant is not corroborated.'"' § 18. Testimony of prosecuting witness Corroboration of prosecuting witness, see post, § 67,. iNecessity and sufficiency of instructions, see post, § 160. The general rule that it is for the jury to determine the credibility of witnesses applies to the testimony of the prosecuting witness in a criminal case,^" and it invades the province of the jury to charge that, in the absence of disproof of the statements of the prosecuting wit- ness by defendant, they are bound to presume such statements to be true.^^ So, where the law does not require corroboration of the prosecuting witness, an instruction that the jury should acquit, in the absence of corroborating circumstances, is erroneous, as on the weight of the evidence.^^ The court may, however, caution the jury to consider the relation of the prosecuting witness to the case,^' and, where cor- roboration is not required as a matter of law, it is not improper to charge that the jury may convict on the uncorroborated testimony of the prosecuting witness.** § 19. Testimony of wife or relative of accused or prosecuting wit- ness Necessity and sufficiency of instructions, see post, § 162. It is error to charge that the jury may disregard the testimony of any witness in a criminal prosecution who is related to the defendant,^^ or to instruct that the testimony of th,e wife of an accused should be examined with great caution or peculiar care.'° In some jurisdictions 29 People V. Rom, 138 N. Y. 616, 33 defendant's wife is _a competent wit- N. B. 933 ; Commonwealth v. Pender- ness ; that the jury should not dis- gast, 138 Pa. 633, 21 A. 12 ; Hannon v. card her testimony for that fact alone. State, 70 "Wis. 448, 36 N. W. 1. but may consider it in determining her 3 People V. Mazzurco (Gal. App.) credibility; that if they believe that 193 P. 164. any witness has intentionally sworn 31 People V. Murray, 86 Cal. 31, 24 falsely, they may disregard the whole p. 802. or any part of the testimony of wit- 8 2 Gonzales v. State, 32 Tex. Cr. Hi ness — is erroneous, as telling the jury 611, 25 S. W. 781. by Implication to disregard the testi- 33 People V. Herrick, 59 Mich. 563, mony of defendant's wife on some 26 N. W. 767. ground, but not alone because she is- 34 People V. Akey, 124 P. 718, 163 his wife. State t. Hobbs, 117 Mo. 620, Cal. 54. ■ 23 S. W. 1074. 85 McEwen v. State (Miss.) 16 So. 36 state v. Bernard, 45 Iowa, 234; 242. State v. Rankin, 8 Iowa, 355; State Testimony o£ wife of defendant. V. Guyer, 6 Iowa, 263. An instruction, in a criminal case, that In one jurisdiction, the rule is INST.TO JUKIES— 3 § 20 INSTRUCTIONS TO JURIES 34 it is not error to charge that the 'jury may/' or should, consider wheth- er the relationship of any of the witnesses to the defendant or the complaining witness may have influenced them to swerve from the truth.^* But in other jurisdictions it is held that, while it is proper to instruct that, in weighing the testimony of a defendant in a criminal case, the jury may consider his peculiar situation and relationship to the case, the rule cannot be extended beyond the defendant, so as to in- clude his relatives.^ ^ In Texas, where the province of the jury is perhaps more jealously guarded than in almost any other jurisdiction, an instruction, framed in general terms, that the jury, in estimating the credibility of the testimony, may consider the intelligence and ap- parent prejudice, if any, of the witnesses, has been held not erroneous, as calculated to call the attention of the jury to the interest of relatives or of the wife of defendant testifying in the case.*" § 20. Testimony of detectives and informers Necessity and suflBciency of instructions, see posj, § 161, The credibility of the testimony of detectives employed to discover violations of the law is for the jury,*^ and while in some jurisdictions it is held that the giving of instructions as to the caution to be ob- served in weighing testimony of private detectives or persons employed to find evidence is based upon rules of practice rather than of law, and rests largely in the discretion of the trial judge,*^ the general rule is that it is error to instruct, and proper to refuse to instruct, because invading the province of the jury, that the testimony of police officers stated to be that, where defendant's case to be shown lor the purpose of wife is a witness in his behalf, it is afCecting their credibility, the court error to charge that the jury should might instruct the jury in weighing scrutinize carefully her eviflence, and, testimony of defendant's wife to con- on account of her interest in the sider the fact of her relationship to event, receive her testimony with him. State v. Young, 99 Mo. 666, 12 grains of allowance, without a further S. W. 879. charge that, if they believe her tes- so People v. Shattuck, 109 Cal. 673, timony to be true, it should be given 42 P. 315; People v. Hertz, 105 Gal. full credit. State v. Collins, 118 N. O. 660, 39 P. 32. 1203, 24 S. E. 118. Earlier decisions in California s' State V. Parker, 39 Mo. App. 116. holding contrary to the text, People ,3 6 State V. Hogard, 12 Minn. 293 v. Wong Ala Foo, 69 Cal. 180, 10 P. (Gil. 191). 375, have been overruled. In Missonri, in an early case it 4o McGrath v. State, 35 Tex. App. was held that, under statutory provi- 413, 34 S. W. 127 ; Cockerell v. State, sions prohibiting the court in a criml- 32 Tex. Cr. R. 585, 25 S. W. 421. nal case from commenting on the evl- -^M -iM XT w W. 431. 90 Neb. 390. Mich. Piehl v. Piehl, 101 N. W. ..„,■, -n. ,. ^^ -nr. 000 628, 138 Mich. 515. , " Warder v. Fisher, 48 Wis. 338, Mo. Craveus v. Hunter, 87 Mo. * ^j W. 470. App 45g ^'' Bradley v. Gorham, 58 A. 698, 77 Neb. ' Dixon v. State, 46 Neb. 298, Conn. 211, 66 L. R. A. 934. 64 N. W 961. '* Paul v. State, 100 Ala. 136, 14 N. Y. ■ Festa V. New York City Ry. So. 634 ; Barr v. Hack, 46 Iowa, 308. Co. (Sup.) 95 N. T. S. 595. ^sTarbell v. Forbes, 58 N. E. 873, Pa. Platz V. , McKean Tp., 36 A. 177 Mass. 238. 136, 178 Pa. 601. so Stevens v, Leonard, 56 N. B. 27, Tes. Galveston, H. & S. A. Ry. Co. 154 Ind. 67, 77 Am. St. Rep. 446 ; V. Butshek, 78 S. W. 740, 34 Tex. Civ. Smith v. State, 142 Ind. 288, 41 N. App. 194. E. 595. 41 OEEDIBILITY OP WITNESSES AS A JURY QUESTION § 26 credible witnesses/'- but in other jurisdictions such an instruction is held to invade the province of the jury.*'' Mandatory instructions that the jury disregard the entire testimony of a witness who has made contradictory statements are generally held to be erroneous/* and where a party's testimony relates to a subject as to which the burden of proof is on the opposite party, seem- ing inconsistency therein will not ordinarily warrant the court in in- structing the jury to reject those parts of it in his favor, and to base their verdict on those parts which seem to make against him/* § 25. Station in life of witness Ordinarily it is the safer practice to refrain from speaking of the particular station in life filled by a witness,*^ and it is error to charge that the testimony of a witness derives additional weight from the fact that he happens to be a clergyman.* ° An instruction, however, that a party testifying as a witness is a reputable lawyer means only that he is a regular lawyer, and is not objectionable as a charge on his character,'^ and in jurisdictions where the court may comment on the evidence it is not error for the court to characterize a witness. as a well-known and capable member of the bar.** § 26. Appearance and demeanor of witness The court ought not to state to the jury its estimate of the appear- ance and manner of a witness,*' but it is not error to tell the jury that they may consider the demeanor of a witness while on the stand and his manner of testifying in judging of his credibility." " The rule is otherwise as to the demeanor and conduct of a witness while off the stand,*^ these being no part of the evidence.*" 81 White V. New York, Chicago & 84 Smith v. Jackson Tp., 26 Pa. St. L. R Co., 142 Ind. 648, 42 N. B. Super. Ct 234. 456. 86 Sneed v. death, 8 N. C. 309. 82 Waycaster v. State, 70 S. E. 883, ee Sneed v. Creath, 8 N. C. 309. 136 Ga. 95; Schmidt v. St. Louis K. 8 7 Lyon v. Freshour's Estate, 140 Co., 50 S. W. 921, 149 Mo. 269, 73 Am. K. W. 517, 174 Mich. 114, 45 L. R. A. St. Rep. 380. (N. S.) 67, Ann. Cas. 1915A, 726. 8 3 Blackingtbn v. Sumner, 69 Me. ss Holmes v. Montauk Steamboat 136; Cleveland v. New Jersey Steam- Co., 93 P. 731, 35 C. C. A. 556. boat Co., 53 Hun. 638, 7 N. Y. S. 28 ; 89 Orutchfield v. Richmond & D. R. Danko v Pittsburg Rys. Co., 79 A; Co., 76 N. C. 320. 511, 230' Pa. 295; Vance v. Ferguson, oo Turner v. State, 49 So. 828, 160 85 S. E. 241, 101 S. C. 125. Ala. 40 ; Brown v. Stacy, 5 Ark. 403 ; Inconsistency between testimony Kirchner v. Collins, 53 S. W. 1081, 152 and sworn answer. Where the main Mo, 394 ; People v. Scanlon, 117 N. Y. facts in the testimony of a witness S. 57, 132 App. Div. 528. are contradicted by his sworn answer oi People v. Zoeller, 160 111. App. to a bill in equity in another case, it 437; Purdy v. People, 140 111. 46, 29- is not error to charge that he is not to N. E. 700. be believed, unless corroborated. Saul »2 Cridland v. Crow, 70 A. 888, 221. V. Buck, 72 Ga. 254. Pa. 618. § 27 INSTRUCTIONS TO JUEIES 4:2 § 27. Instructions directed at partictilar witness or class of wit- nesses See, also, post, §§ 183, 184. It i^ error to single out a particular witness by name, and make the jury the judges of his credibility, although they are also told that they are the judges of the credibility of all the witnesses;"^ this rule ap- plying to an instruction as to the effect of the giving of false testi- mony by certain witnesses."* In some jurisdictions an instruction which is couched in general terms in stating the matters which the jury may consider in passing upon the credibility of a witness, but which, because of the circum- stances of the case, points with more or less force to particular witness- es, is erroneous,®^ and the province of the jury is invaded by an in- struction giving special directions as to how the evidence of a particular class of witnesses shall be weighed."' »3 Davidson v. WallinsEord, 88 Tex. do Tyler Ice Co. v. Tyler Water Co., 619, 32 S. W. 1030. 95 S. W. 649, 42 Tex. Civ. App. 210 ; In Utab, liowever, it has been held Houston, B. & W. T. Ry. Co. v. Run- that a judge may, if necessary, single nels, 47 S. W. 971, 92 Tex. 305, re- out a particular witness and charge versing judgment (Civ. App.) 46 S. W. the jury as to his credibility. Lowe v. 394. Herald Co., 6 Utah, 175, 21 P. 091. «« State v. Schnepel, 59 P. 927, 23 9 4 Wastl v. Montana Union R. Co., Mont. 523. 17 Mont. 213, 42 P. 772. 43 COMMENT ON PROBATIVE EFFECT OF EVIDENCE CHAPTER III COMMENT BX COURT OE EXPRESSION OF OPINION ON THE WEIGHT OR SUFFICIENCY OF THE EVIDENCE A. RtTLE IN Absence of Constitutional ob Statutobx Pbovisions § 28. Statement of rule. < 29. Limitations of rule. 30. Rule in particular jurisdictions. B. Rule undeb Constitutional oe Statutory Provisions 31. General considerations. 82. Limitations of rule. 33. Specific applications of rule in civil cases. 34. Application of rule in negligence cases. 35. Specific applications of rule in criminal cases. C. Statement bt the Couet of the Contentions of the Parties 36. Rule that such a statement is within the province of the court. 37. Limitations of rule. D. Statement and Review of Evidence by Couet 38. Rule that court may review the evidence. 39. Effect of constitutional or statutory provisions. 40. Manner of exercising power. HJ. Refeeence to, ob Singling Out of, Paeticulae Pabts of the Evidence, AND Comment Thebeon 41. Confining jury to part of evidence. 42. Reciting parts of testimony and construing testimony of particular wit- nesses. 43. Instructions as to weight of particular evidence. 44. Instructions on right or duty of jury to consider certain facts. 45. Stating purpose of evidence. , F. Insteuctions on Paeticulae Classes of Evidence 46. Admissions. 47. Effect of exculpatory parts of statement of accused given in evidence against him. 48. Confessions — Fact of confession and weight thereof. 49. Corroboration of confessions. 50. Dying declarations. 51. Opinion and expert evidence. .52. Parol evidence. 53. Circumstantial evidence in criminal cases. 54. Instructions as to effect of good character of. accused. G. CoMPABATivE Values of Diffeeent Kinds oe Classes of Evidence 55. General rule. 56. Opinion and expert evidence. 57. Positive and negative testimony. H. Peesumptions op Fact and Infheences feom Evidence 58. Statement of rule. 59. Limitations of rule. § 28 INSTRUCTIONS TO JURIES 44 § 60. Specific applications of rule. 61. Presumption or inferences from possession of fruits of crime. 62. Presumptions or inferences from flight of accused. I. Degbeb of PEOor 63. In general. 64. Preponderance of evidence. 65. Balancing one witness against another. 66. Instructions on reasonable doubt in criminal cases. J. COEKOBORATION OF WITNESSES IN CKIMINAL OASES 67.; Corroboration of prosecuting witness. 68. Ctorroboration of accomplice. K. Undisputed Pacts 69. In general. 70. Stating legal effect of undisputed facts. L. AiTiEMiNa Existence oe Nonexistence of Evidence oe Tendencies Theeeof 71. Failure or absence of proof. 72. Declaring tendency of evidence. 73. Declaring that there is some evidence of particular facts. A. Rule in AbsSnce of Constitutional or Statutory Provi- sions § 28. Statement of rule Where there are no constitutional or statutory provisions governing the subject, the court may, both in civil,^ and in criminal cases," subject lU, S. (C. C. A. Ark.) United Mine In Rhode Island, the trial judge Workers of America v. Coronado Coal is empowered to make such comments Co., 258 F. 829, 169 C. C. A. 549. on the evidence as he believes will Conn. Stacy v. Brothers, 107 A. direct the jury to right conclusions; 613, 93 Conn. 690; Earley v. Hall, 95 the jury being the ultimate arbiter of A. 2, 89 Conn. 606; Mercer Electric the facts. Desautelle v. Nasonville Mfg. Co. V. Connecticut Electric Mfg. Woolen Co., 66 Ati. 57^, 28 R. I. 261. Co., 89 A. 909, 87 Conn. 691 ; Mc- Instructions held proper within Laughlin v. Thomas, 85 A. 370, 86 rule. In an action of assumpsit for Conn. 252 ; Barnes v. City of Water- board and lodging, where the defend- bury, 74 A. 902, 82 Conn. 518; Appeal ant alleges that he loaned money to of Turner, 44 A. 310, 72 Conn. 305. the husband of plaintiff to buy the Minn. Dobsloff v. Nichols-Chis- farm on which plaintiff lived with her holm Lumber Co. 112 N. W. 218, 101 husband, and that a part of the trans- Minn. 267 ; First Nat. Bank of Deco- action was that he should receive rah V. Holan, 65 N. W. 952, 63 Minn, board and lodging free when in the 525; McArthur v. Craigie, 22 Minn, nighborhood, the court may, in its 351. charge, call the jury's attention to the Pa, Katzenberg v. Oberndorf, 70 fact that when the loan was made the Pa. Super. Ct. 567 ; Krider v. City of husband agreed to pay interest upon Philadelphia, 36 A. 405, 180 Pa. 78; it. Springer v. Stiver, 16 Pa. Super. Porter v. Nelson, 121 Pa. 628, 15 A. Ct. 184. Where, in an action by an 852 ; Wanger v. Hippie, 13 A. 81"; administrator on a bond given for the Schoneman v. Fegley, 14 Pa. 376. maintenance of the decedent to recover Vt. Seviour v. Rutland R. Co., 88 Vt. 107, 91 A. 1039. s See note 2 on following page. 45 COMMENT ON PEOBATIVB EFFECT OF EVIDENCE 28 to the qualifications and restrictions stated supra (section 4), com- ment upon the evidence, or intimate or express its opinion upon the weight thereof, or any part of it, or emphasize such evidence for support and medical services ren- dered to decedent after ^e had left the defendant's house, it appears that the medical services were rendered by a son of the decedent, it is not error for the court to say in its charge that the Jury were not to conclude that the medical services were worth what the son testified they were worth simply because he said so, but that they were to fix what would be a reasonable com- pensation from all the evidence in the case. Mills v. Plant, 18 Pa. Super., Ct. 80. Where, in an action against defendant for rent, as assignee of a lease, he introduced a memorandum book which showed that charges for rent had been made by plaintiff against the assignor, who was in pos- session of the property, the fact that the court charged the jury that, be- cause this memorandum book is so very small it hardly seems to make the term applicable, it does not follow that it is not a book of original entry, and, of course, it is of some signifi- cance that the charges of rent from month to month were entered against the assignor, though not conclusive proof that they were charged against him, is not prejudicial to defendant, as ridiculing his evidence. Benedict V. Everard, 46 A. 870, 73 Conn. 157. •In ah action for personal injuries, it is proper for the court to call the at- tention of the jury to the number of witnesses testiftfing to facts showing that plaintiff stepped off a moving train, and the court should refer to the number of witnesses on each side, their respective interests, opportunities for observation, and other matters affect- ing the weight of the evidence. Bockel- camp v. Lackawanna & W. V. R. Co., 81 A. 93, 232 Pa. 66. A charge, in an ac- ■ tion to recover for services rendered defendant's testate, that verbal state- ments, repeated a long time after by those who heard them, are likely to be affected by a failure to remember ex- actly, etc., was not improper where the trial court also stated he expressed no opinion concerning the weight of the evidence. McOurley v. National Sav- ings & Trust Co. 258 F. 154, 49 App. D, C. 10. Where a boy nine years old, testifying with respect to an accident occurring a year before, stated that he had talked the matter over with his mother, that she had told him what happened at the time of the accident, and what he saw, an instruc- tion directing the jury to give such weight to the testimony of the boy as in their judgment it was worth, and that they should recall- his youth and liability to repeat what he had heard if he had been talked to, is not er- roneous as invading the province of the jury. Banks v. Connecticut Ry. & Lighting Co., 64 A. 14, 79 Conn. 116. 2U. S. (C. CyA. Ala.) Turner v. United States, 66 F. 286, 13 C. C. A. 442; (C. O. Kan.) Woodruff v. United ■States, 58 F. 766. Conn. State v. Cabaudo, 76 A. 42, 83 Conn. 160 ; * State v. Duffy, 57 Conn. 525, 18 A. 791. D. C. United States v. Schneider, 21 D. C. 381. Ind. T. Parris v. United States, 35 S. W. 243, 1 Ind. T. 43. N. J. State V. Fiore, 108 A. 363, 93 N. J. Law, 362, judgment affirmed 110 A. 909; State v. Warady, 72 A. 37, 77 N. J. Law, 348, judgment affirmed 75 A. 977, 78 N J. Law, 687 ; State v. Valentina, 60 A. 177, 71 N. J. Law, 552 ; EngleV. State, 50 N. a. Law, 272, 13 A. 604. N. Y. People V. Druse, 5 N. Y. Cr. R. 10; People v. Carpenter, 6 N. B. 584 ; Done v. People, 5 Parker, Cr. B. 364; Jefferds v. Same, Id. 522; Con- raddy v. Same, Id. 234; Stephens v. People, 4 Parker, Cr. R. 396 ; People V. Quinn, 1 Parker, Cr. R. 340. Pa. Commonwealth v. McGowan, 42 A. 365, 189 Pa. 641, 69 Am. St. Rep. 836, 29 Pittsb. Leg. J. (N. S.) 293, 42 Wkly. Notes Cas. 459; Common- wealth V. Miller (Pa.) 3 Lane. Law Rep. 175. In Minnesota, while the defendant has the constitutional right to have the facts in issue determined by the jury uninfluenced by opinions from the bench (State v. Yates, 99 Minn. 461, 28 INSTRUCTIONS TO JTJEIES 46 as the court considers most important;* how far the discussion of the evidence shall proceed being committed to the sound discretion of the trial court.* Thus instructions warning the jury that photo- graphs introduced in evidence may be misleading,^ or speaking of certain statements by a party as "loose talk,"* or stating that cer- tain evidence adduced by a party to establish a fact was over- whelmingly contradicted by the evidence of the other side,' or speaking of the testimony of one party as uncorroborated,* or characterizing certain testimony as important or the material testimony in the case," or stating that certain evidence was strong, evidence,^"* have been held proper. Where in a criminal case a state of facts tending to incriminate the defendant has been shown, and he undertakes to explain it, his neglect to produce existing satis- factory proof peculiarly within his power is a proper subject of com- ment by the court, if none is made on his own failure to testifyi^^ 109 N. W. 1070), the court may, in a criminal case, comment upon the testi- mony or state that certain evidence is material, or that it tends to prove cer- tain fa.cts, when such comment is made fairly, and the jury are fully advised that they are the exclusive judges of the facts and of the cred- ibility of the witnesses (State v. Rose, 47 Minn. 47, 49 N. W. 404). Im New York, it is not legal error for a trial judge to indicate his opin- ion in charges, and it is only where the evidence of bias is marked and where, in the opinion of the appellate court, the balance of proof is only slight in favor of the prosecution, and where, in the interest of justice, ac- cused should be given another chance to prove his innocence, that the con- viction should be reversed for such cause. People v. Fisher, 120 N. Y. S. 659, 136 App. Div. 57. Insti*nctions held proper tpitbiii rule. Where the court instructed as to the bearing of evidence of de- fendant's good character, a reference by the court to the fact that those who testified to defendant's character had known him but a short time. State V. Totten, 47 A. 105, 72 Vt. 73. A charge to the jury to the eflEect that "the evidence seems to point to the guilt of defendant." Johnson v. Com- monwealth, 115 Pa. 369, 9 A. 78. An expression of opinion that there is nothing in the case to reduce the crime to manslaughter. McClain v. Commonwealth, 110 Pa. 263, 1 A. 45. s Desautelle v. Nasonville Woolen Co., 66 A. 579, 28 R. I. 261. * Brown v. United States, 142 F. 1, 73 C. C. A. 187; Appeal of Wheeler, 100 A. 13, 91 Conn. 388 ; State v. Al- derman, 78 A. 331, 83 Conn. 597; Shu- pack v. Gordon, 64 A. 740, 79 Conn. 298. B McLean v. Erie R. Co., 57 A. 1132, 70 N. J. Law, 337, affirming judgment 54 A. 238, 69 N. J. Law, 57. 6 Harrold v. Harrold, 96 A. 745, 251 Pa. 303. 7 Church V. Delaware, L. & W. R. ■ Co., 95 A. 341, 250 Pa. 21. 8 Lillibridge v. Barber, 55 Conn. 366, 11 A. 850. »Winther v. Second & Third Sts. Pass. Ry. Co., 159 Pa. 628, 28 A. 472 ; Grove v. Donaldson, 15 Pa. 128. 10 Rosevear v. Borough of Osceola Mills, 169 Pa. 555, 32 A. 548; Fry v. Pennsylvania R. Co., 24 Pa. Super. Ct 147. 11 Spear v. United States, 246 F. 250, 158 C. C. A. 410, certiorari denied 38 S. Ct. 335, 246 U. S. 667, 62 L. Ed. 929. 47 COMMENT ON PROBATIVE EFFECT OF EVIDENCE 30 § 29. Limitations of rule As has already been stated, the above rule does not permit the court to withdraw the ultimate determination of the weight of the evidence from the jury, and instructions which have this effect, or which may- lead them to think that they are deprived of this power, are erroneous.^^ § 30. Rule in particular jurisdictions In Michigan, where the statute provides that the court shall instruct only as to the law, there is some variance in the decisions as to the power of the court to comment on the evidence. Some of the cases 12 V, S. (Sup.) Greenleaf v. Birtli, 9 Pet. 292, 9 L. Ed. 132; (C. C. A. N. T.) Delaware, L. & W. Ry. Co. v. Tuovinen, 240 F. 678, 153 C- C. A. 476; (C. C. A. Wis.)' Nyback v. Champagne Lumber Co., 109 F. 732, 48 C. C. A. 632. Conn. Warner v. McLay, 103 A. 113, 92 Conn. 427. Minn. Rugland v. Tollefsen, 53 Minn. 267, 55 N. W. 123; State v. Kobe, 1 N. W. 1051, 26 Minn. 150. N. J. New Jersey Traction Co. v. Gardner, 38 A. 669, 60 N. J. Law, 571. N. Y. Johnston v. New York City Ry. Co., 104 N. Y. S. 1039, 120 App. Div. 456; Corrigan v. Funk, 96 N. Y. S 910, 109 App. Div. 846; Fox v. Manhattan Ry. Co., J3 N. Y. S. 896, 67 App. Div. 460 ; People v. Brow, 90 Hun, 509, 35 N. Y. S. 1009; Mark- ham v. Jaudon, 49 Barb. 462, 3 Abb. Prac. (N. S.) 286. Pa. Drexler v. Borough of Brad- dock, 86 A. 272, 238 Pa. 376 ; Dietrich V. City of Lancaster, 61 A. 1112, 212 Pa. 566 ; Heydrick v. Hutchinson, 165 Pa. 208, 30 A. 819, 35 Wkly. Notes Cas. 503 ; Sellers v. Jones, 22 Pa. 423; Cadbury v. Nolen, 5 Pa. 320; Zerger V. Sailer, 6 Bin. 24; Brown v. Camp- , bell, 1 Serg. & R. 176. B. I. Howry v. Saunders, 80 A. 421, 33 B. I. 45, Ann. Cas. 1913A, 1344. Inatrnctions held improper within rule. An instruction that, "if the law is as laid down by the court, plaintiff has failed in making out his case, and is not entitled to recover." Spangler v. Hummer, 3 Pen. & W. (Pa.) 370. A charge where the evidence on an issue of fact would have warranted a finding either way, that it seems to the judge the plaintifC had made out the better case. and how he would regard it if he were on the jury. Samuel v. Knight, 9 Pa. Super. Ct. 352, 43 Wkly. Notes Cas. 392. A charge in an action by a passenger against a street railway company, treating the testimony in the case as positive proof that the driver had been dismissed by defend- ant because his negligence had pro- duced the injuries to plaintiff, where there is no distinct proof to that ef- fect, and it might have been inferred that the discharge was simply due to the fact that the accident to plaintiff occurred while he was driving. Lom- bard & S. S. Pass. Ry. Co. v. Chris- tian, 124 Pa. 114, 16 A. 628, 23 Wkly. Notes Cas. 273. An instruction, in an action against an executrix on a note given by testator, where defendant proved her appointment as executrix, publication of notice to creditors to prove their claims and knowledge by plaintiff that she was executrix, to show that no demand was made by plaintiff for payment, that there was no evidence to negative a demand. Walls V. Walls, 170 Pa. 48, 32 A. 649. An instruction, in an action against a railroad company to recover dam- ages for personal injuries sustained through the negligence of the driver of' a hansom cab, where it is admitted by the defendant that the name of the railroad company was printed on the cab, and this fact is the only evidence in the case as to the ownership of the cab, which charges that the evi- dence is sufficient to sustain a finding that the driver was the servant of the defendant, without permitting the jury to draw the inference, from the name on the cab, that the defendant was its owner. Hershinger v. Penn- sylvania R. Co., 25 Pa. Super. Ct. 147. § 30 INSTRUCTIONS TO JURIES - 48 hold that, if the jury are explicitly and positively informed that they have the exclusive right to determine the facts, it will not be im- proper for the court to make such remarks upon the facts as are not calculated to mislead the jury as to their rights and responsibilities,^* or to intimate its opinion as to the weight of certain evidence,^* or to caution the jury, if needful, against giving undue importance to unimportant things,^" and that under some circumstances it may be the duty of the court to charge upon the weight of the evidence.^' The discussion of the evidence, however, must not be of such a character as to create prejudice against one party or the other,^' and some of the decisions hold that the instructions must not indicate the trial judge's opinion as to the facts, either by emphasizing particular testimony, or calling attention to the lack of it, or giving an opinion as to its interpretation,^* or by unfavorable comment on the testimony presented by a party. ^* In this jurisdiction, as elsewhere, instructions on conflicting evidence, which are so framed as to withdraw from the jury the final decision as to the facts or to embarrass it in the making of such decision are erroneous, and properly refused,^" and the trial judge should exercise great care to avoid impressing his own view of the evidence upon the jury ,^^ and an expression of opinion by the judge as to the weight of certain evidence, which is of such a charac- is Hamilton v. People, 29 Midi. 173. in rule. Where there is evidence 1* People V. Carey, 84 N. W. 1087, fairly tending to establish the plain- 125 Mich. 535. tiff's case, it is reversible error for 15 Welch V. Ware, 82 Mich. 77. the court to state, in the presence of 16 Card V. Fowler, 79 N. W. 925, the jury, that the testimony is so 120 Mich. 646. indefinite and unsatisfactory that it 17 Renaud v. City of Bay City, 82 will not justify a verdict, although N. W. 617, 124 Mich. 29. he finally permits the case to go to 18 McCain v. Smith, 137 N. W. 616, the jury. Burrows v. Delta Transp. 172 Mich. 1 ; Preston Nat. Bank v. Co., 64 N. W. 501, 106 Mich. 582, 29 Michigan Mut. Fire Ins. Co., 73 N. W. L. E.. A. 468. 815, 115 Mich. 511. 21 Valin v. McKerreghan, 104 Mich. isPokriefka v. Mackurat, 91 Mich. 213, 62 N. yv. 340; Sterling v. Calla- 399, 51 N. W. 1059. han, 94 Mich. 536, 54 N. W. 495. 20 Mich. Connor v. McRae, 160 Characterizing testimony as N. W. 479, 193 Mich. 682; McCain "strong evidence." It is error for V. Smith, 137 N. W. 616, 172 Mich. 1 ; the trial judge to point out particular Smith V. Hertz & Hosbach Co., 125 testimony, and tell the jury that, if N. W. 368, 160 Mich. 431; Dawson they believe it, it is "pretty strong V. Falls City Boat Club, 84 N. W. 618, evidence," and "very strong evidence," 125 Mich. 433; Lincoln v. City of De- and "evidence * • • that I should troit, 101 Mich. 245, 59 N. W. 617; not fail to act upon If I was on the Blumeno v. Grand Rapids & I. R. Co., jury," where he does tiot caution the 101 Mich. 325, 59 N. W. 594; Letts jury not to. be influenced by his in- V. Letts, 91 Mich. 596, 52 N.'W. 54; dividual opinion, and tell them that Webster v. Fowler, 89 Mich. 303, 50 they are exclusive judges of the N. W.. 1074. weight of the testimony. People v. Instruction heW improper with- Gastro, 75 Mich. 127, 42 N. W. 937. 49 COMMENT ON PROBATIVE EFFECT OF EVIDENCE §31 ter as to be likely to pf event the jury from acting contrary thereto, is not cured by telling them that they are the exclusive judges of the facts." In New Hampshire, it is not the ordinary practice for the court to express opinions in regard to the weight of evidence but it is not ir- regular for it to make such suggestions in relation to the facts as it may suppose will be useful to the jury; the matter being left to them for decision.''* B. RuivE UNDER CONSTITUTIONAI, OR STATUTORY PROVISIONS § 31. General considerations In those jurisdictions which, as above stated, have constitutional or statutory provisions forbidding the court, in varying phraseology, to charge on the facts, instructions on conflicting evidence, which charge on the weight thereof, or intimate the opinion of the court as to its weight or sufficiency, are erroneous both in civil "* and in criminal 22 People V. Lyons, 49 Micb. 78, 13 N. W. 365. 23 Cook V. Brown, 34 N. H. 460; Patterson v. Colebrook, 29 N. H. 94 ; Flanders v. Colby, 28 N. H. 34. 2 * Ala. O'Brien v. Birmingham Ry. , Light & Power Co., 72 So. 343, 197 Ala. 97; Louisville & N. R. Co. v. Godwin, 67 So. 675, 191 Ala. 498; Louisville & N. R. Co. v. Sherrell, 44 So. 631, 152 Ala. 213 ; Tait v. Murphy, 80 Ala. 440, 2 So. 317; Newton v. Jackson, 23 Ala. 335; Mundine v. Gold, 5 Port. 215. Ariz. Southern Pac. Co. v. Hogan, 108 P. 240, 13 Ariz. 34, 29 L. R. A. (N. S.) 813. Ark, Twist v. Mullinlx, 190 S. W. 851, 126 Ark. 427; Karnopp v! Pt. Smith Light & Traction Co., 178 S. W. 302, 119 Ark. 295; Valentine v. Edwards, 166 S. W. 531, 112 Ark. 354 ; Kansas City Southern Ry. Co. v. Drew, 147 S. W. 50, 103 Ark. 374 ; Cameron V. VandegrifE, 53 Ark. 381, 13 S. W. 1092. Cal. Fisher v. Los Angeles Pacific Co., 132 P. 767, 21 Cal. App. 677; Mc- Neil V. Barney, 51 Cal. 603 ; Batters- by V. Abbott, 9 Cal. 565; Treadwell v. Wells, 4 Cal. 260. Colo. Denver Omnibus & Cab Co. v. Gast, 129 P. 233, 54 Colo. 17. D. C. Woods V. Trinity Parish, 21 D. C. 540. INST.TO JUEIBS — 4 Fla. Florida East Coast Ry. Co. v. Carter, 65 So. 254, 67 Fla. 335, Ann. Cas. 1913E, 1299; Farnsworth v. Tam- pa Electric Co., 57 So. 233, 62 Fla. 166 ; Supreme Lodge, K. P., v. Lips- comb, 39 So. 637, 50 Fla. 406 ; Hano- ver Fire Ins. Co. v. Lewis, 28 Fla. 209, 10 So. 297. Ga. De Ment v. Rogers, 101 S. B. 197, 24 Ga. App. 438; Robinson & Bason v. Register, 94 S. E. 864, 21 Ga. App. 614; Garbutt Lumber Co. v. Prescott, 62 S. E. 228, 131 Ga. 326; Owen v. Palmour, 36 S. B. 969, 111 Ga. 885; Augusta Southern R. Co. v. McDade, 31 S. E. 420, 105 Ga. 134; King V. King, 37 Ga. 205; Rushln V. Shields, 11 Ga. 636, 56 Am; Dec. 436. Idaho. State v. ShufC, 72 P. 664, 9 Idaho, 115. 111. Mayville v. French, 92 N. E. 919, 246 lU. 434; Andrewzewski v. Gallatin Coal & Coke Co., 143 111. App. 418; Supreme Court of Honor v. Barker, 96 111. App. 490; Merchants' Loan & Trust Co. v. Lamson, 90 111. App. 18; Rice & BuUen Malting Co. V. International Bank, 86 111. App. 136, judgment affirmed 56 N'. E. 1062, 185 111. 422; Eastman v. West Chicago St. R. Co., 79 111. App. 585; New York, C. & St. L. R. Co. V. Blumenthal, 160 111. 40, 43 N. B. 809; Walsji v. Ayls- worth, 46 111. App. 516; Erasure § 31 INSTRUCTIONS TO JURIES 50 cases,*^ and it is, of course, proper to refuse such an instruc- tion.«« V. Zimmerly, 25 111. 202; Eames v. BlacUhart, 12 111. 195. -na. Ft. Wayne & N. I. Traction Co. V. Smith, 107 N. B. 31, 57 Ind. pp. 304 ; Deal v. State, 39 N. E. 930, 140 lud. 354 ; Guetig v. State, 63 Ind. 278 ; Chamness v. Chamness, 53 Ind. ..01; Caai v. Hunt, 41 Ind. 466; Rey- nolds V. Cox, 11 Ind. 262 ; Hackleman V. Moat, 4 Blackf. 164. Iowa. Carroll v. Chicago, St. P., M. & O. Ry. Co., 84 N. W. 1035 ; Russ V. The War Eagle, 9 Iowa, 374; Woods V. Mains, 1 G. Greene, 275. Kan. Tuttle v. Missouri Pac. Ry. Co., 119 P. 370, 86 Kan. 28. Ky. Richmond & L. Turnpike Road Co. V. Foley, 5 Ky. Law Rep. (ab- stract) 425 ; Smith's Adm'x v. North- ern Bank, 1 Mete. 575 ; Swigert v. Graham, 7 B. Mon. 661; Salter v. Myers, 5 B. Mon. 280. La. Hewes v. Barron, 7 Mart. (N. S.) 134. Me. Whitehouse v. Bolster, 50 A. 240, 95 Me. 458; Sawyer v. Nichols, 40 Me. 212. Md. Western Maryland R. Co. v. Shivers, 61 A. 618, 101 Md. 391; Maltby v. Northwestern Virginia R. Co., 16 Md. 422; Burtles v. State, 4 Md. 273; TifEany v. Savage, 2 Gill, 129. Mass, Davis v. Jenney, 1 Mete. 221. Miss. Daniel v. Daniel, 4 So. 95; French v. Sale, 63 Miss. 386; Thrasher V. Gillespie, 52 Miss. 840. Mo. Morrill v. Kansas City (App.) 179 S. W. 759; Winter v. Supreme Lodge K. P. of the World, 69 S. W. 662, 96 Mo. App. 1 ; Jones v. Roberts, 37 Mo. App. 163; Nail v. St. Louis, K. C. & N. Ry. Co., 59 Mo. 112 ; Kin- man V. Cannefax, 34 Mo. 147 ; Far^a^ V. David, 33 Mo'. 482;- Glasgow v. Copeland, 8 Mo. 268. Mont. O'Brien v. Corra-Rock Is- land Mining Co., 105 P. 724, 40 Mont. 212. Neb. Kleutsch v. Security Mut. Life Ins. Co., 100 N. W. 139, 72 Neb. 75. N. M. C. W. Kettering Mercantile Co. V. Sheppatd, 142 P. 1128, 19 N. M. 330; Chaves v. Chaves, 3 N. M. (Johns.) 199, 5 P. 331; Vasquez v. Spiegelberg, 1 N. M. 464. N. C. May V. Morganton Mfg. & Trading Co., 80 S. E. 380, 164 N. C. 262; Universal Metal Co. v. Durham & C. R. Co., 59 S. E. 50, 145 N. C. 293; Dobson & Whitley v. Southern ' Ry. Co., 44 S. E. 593, 132 N. C. 900 ; Reed v. Schenck, 13 N. C. 415. Okl. Littlefield Loan & Investment Co. V. Walkley & Chambers (Sup.) 166 P. 90; Clarke v. Uihlein, 152 P. 589, 52 Okl. 48; Leavitt v. Deich- mann, 120 P. 983, 30 Okl. 423. Op. Meyer v. Thompson, 16 Or. 194, 18 P. 16; State v. Huffman, 16 Or. 15, 16 P. 640. S. D. Fellows V. Christensen, 133 N. W. 814, 28 S. D. 353. Tenn. Jones v. Cherokee Iron Co., 14 Lea, 157; Ayres v. Moulton, 5 Cold. 154 ; Case v. Williams, 2 Cold. 239; Kirtland v. Montgoniery, 1 Swan, 452; Ivey v. Hodges, 4 Humph. 154. Tex. Thornburg v. Moon ot and stock pens near plaintiff's property, and the company reduced the market value of the property, as alleged in the petition and shown by the evi- dence, the company was responsible therefor. Dallas, O. & S. W. Ry. Co. V. Langston (Tex. Civ. App.) 98 S. W. 425. An Instruction, in an action for trespass to land by cutting timber thereon, that, if plaintiff could not read, the jury should more carefully scrutinize the transaction in which a deed to the timber to defendant was signed by her and her husband, and if false representations were made to her as to the nature of the deed, and such representations were made with knowledge of their falsity, and plain- 31 INSTRUCTIONS TO JURIES M sufficiency or insufficiency of the evidence, in whole or in part,^'' or,, in other words, to give the jury the exclusive power to pass on the tiff believed them to be true, the jury should find the deed was obtained by fraud. Dayis v. Miller Brent Lumber Co., 44, So. 639, 151 Ala. 580. An in-, struction, in an action for conversion, that if the property was delivered to defendant by plaintiff, and, after a first purchase note had become due, and all the purchase notes had been declared due, plaintiff refused to pay the notes, and told defendant to do what it pleased with the property, to find for defendant. Crouch Hardware Co. V. Walker, 113 S. W. 163, 51 Tex. Civ. App. 571. An instruction, in an action against a railroad for damages to plaintiff's land caused by an over- flow of water resulting from an em- bankment, in which there was evi- dence tending to show that part of the embankment, was on defendant's right of way, that defendant was not liable if the jury believed that the embankment was not on the right of way, for the reason that, if the jury so believed, there was no evidence tending to show that defendant either built or caused the same to be built. Doke V. Trinity & B. V. By. Co., 126 S. W. 1195, 60 Tex. Civ. App. 106. While exhibition of high temper, ec- < centricities, and unreasonable preju- dices would not, in the absence of other evidence, establish a want of testamentary capacity, yet in a will contest case an instruction that such exhibitions were not alone proof of incompetency or testamentary in- capacity was properly refused, being on the weight of the evidence, Camp- bell V. Campbell (Tex. Civ. App.) 215 S. W. 134. Instruction that certain evi- dence is competent to establish certain facts. An instruction that evidence of the declaration of a testa- tor before and after the execution of a will is not admissible to prove the actual fact of undue influence being exercised upon the testator in making the will, but competent to establish the effect of external acts of undue influence, if any are shown, upon the mind of the testator, is improper as a charge upon the weight of the evi- dence, for the word "competent" Ineans answering to all requirements,, adequate, sufficient; and the word "establish" means "to fix or settle un- alterably." Hart V. Hart (Tex. Civ- App.) 110 S. W. 91. Instruction that verdict must be either not guilty or for sub- stantial damages. In an action for personal injuries, an instruction that the jury should not compromise be- tween the question of liability and amount of damages, and, if, after due- consideration of the evidence and in- structions based on a view as to the preponderance of the evidence, some should believe the defendant not guilty, and others believe the defend^ ant guilty and plaintiff entitled to- substantial damages, they should not merely, as a matter of compromisci- bring in a verdict for some unsub- stantial amount against the plaintiff is erroneous. Guaranty Const. Go. v. Broeker, 93 111. App. 272. 25 Ala. Ogles, V. State, 72 So. 598, 15 Ala. App. Ill; Hall v. State, 32 So. 750, 134 Ala. 90. Ark. Thomas v. State, 107 S. W. 390, 85 Ark. 138. Cal. People v. Dufur, 168 P. 590, 34 Cal. App. 644 ; People v. Goodrum, 160 p. 690, 31 Cal. App. 430 ; People^ V. Vereneseneckockockhoff, 62 P. Ill, 129 Cal. 497 ; People v. Melendrez, QZ P. 109, 129 Cal. 549 ; People v. Ellen- wood, 51 P,. 553, 119 Cal. 166. Colo. Dickens v. People, 186 P. 277, 67 Colo. 409; Ausmus v. People,^ 107 P. 204, 47 Colo. 167, 19 Ann. Cas. 491. Fla. Mathis v. State, 34 So. 287, 45 Pla. 46. Ga. Thomas y. State, 88 S. E. 720, 18 Ga. App. 19; Jeffers v. State, 85' S. E. 1005, 143 Ga. 849; Strickland V. State, 77 S. E. 1070, 12 Ga. App. 640; Scott V. State, 60 S. E. 803, 4 Ga. App. 73 ; Waters y. State, 60- S. E. 335, 3 Ga. App. 649 ; Dorsey v. State, 58 S. B. 477, 2 Ga. App. 228 r •W I I I I 1 , , 27 Enlee v. Seaboard Air Line Ry.,. 96 S. E. 490, 110 S. 0. 137 ; Norris v. Clinkscales, 47 S. O. 488, 25 S. E. 797.. .55 COMMENT ON PROBATIVE EFFECT OF EVIDENCE §31 facts v^rithout any interference whatever on the part of the judge,^' and it has been held error for the court to advise the juiy how they Shuler v. State, 55 S. E. 496, 126 Ga. 630; Brown v. State, 54 S. E. 162, 125 iv. 152. N. C. Ware v. Southern Ry. Co., 95 S. B. 921, 175 N. C. 501. S. C. Kelly v. Columbia Ry., Gas & Electric Co., 84 S. E. 423, 100 S. C. 113 ; Strauss v. Atlantic Coast Line R. Co., 77 S. E. 1117, 94 S. C. 324; Lundy v. Southern Bell Telephone & Telegraph Co., 72 S. E. 558, 90 S. O. 25; Talbert v. Western Union Tele- graph Co., 64 S. E. 862, rehearing de- nied 64 S. E. 916, 83 S. C. 68; Ander- son V. South Carolina & G. ,B. Co., 61 S. E. 1096, 81 S. C. 1; Campbell v. Western Union Telegraph Co., 54 S. B. 571, 74 S. C. 300; China v. City of Sumter, 29 S. E. 206, 51 S. C. 453. Tex, Abilene Gas & Electric Co. v. Thomas (Civ. App.) 194 S. W. 1016; St. Louis Southwestern By. Co. of Texas v. Christian (Civ. App.) 169 S. W. 1102; Galveston-Houston Electric Ry. Co. V. Stautz (Civ. App.) 166 S. W. 11; Trinity & Brazos Valley Ry. Co. v. Lunsf ord (Civ. App.) 160 S. W. 677 ; Carter v. South Texas Lumber Yard (Civ. App.) 160 S. W. 626; Gulf, C. & S. F. Ry. Co. V. Wafer, 130 S. W. 712, 62 Tex. Civ. App. 74; Thompson V. Galveston, H. & S. A. Ry. Co., 106 S. W. 910, 48 Tex. Civ. App. 284; Ft. Worth & R. G. R. Co. v. Cage Cattle Co. (Civ. App.) 95 S. W. 705; Hous- ton & T. C. Ri. Co. V. Striekel (Uiv. App.) 94 S. W. 427 ; City of Hillsboro V. Jackson, 44 S. W. 1010, 18 Tex. Civ. App. 325 ; St. Louis S. W. Ry. Co. of Texas V. Caseday (Civ. App.) 40 S. W. 198 ; Spencer v. Shelbume, 33 S. W. 260, 11 Tex. Civ. App. 521 ; Gulf, C. & S. F. Ry. Co. V. Grubbs, 7 Tex. Civ. App. 53, 26 S. W. 326; San An- tonio & A. P. Ry. Co. V. Long, 4 Tex. Civ. App. 497, 23 S. W. 499 ; Gulf, C. & S. F. Ry. Co. V. Bagley, 3 Tex. Civ. App. 207, 22 S. W. 68. Wash. Underbill v. Stevenson, 170 P. 354, 100 Wash. 129. Instrnctions improper witbin rule. An instruction that If plaintift had stepped down onto the step of the car, and was only making preparation to leave It when the car stopped, and if while in this attitude the car sud- denly jerked, and caused plaintiff to be thrown from the car, the jury should find for plaintiff. Northern - Texas Traction Co. v. Moberly (Tex. Civ. App.) 109 S. W. 483. A charge, in an action against the proprietors of a skating rink for injuries alleged to have been sustained by plaintiff from defendants' negligence, that it would be defendants' duty to exercise ordinary care to enforcfe their rules for protection of skaters, since what ordinary care would require defend- ants to do is for the jury, in the ab- sence of a statute or municipal ordi- nance imposing upon them the duty of doing certain specified acts. Stewart V. Mynatt, 70 S. E. 325, 135 Ga. 637. An instruction, in an action against a railroad for personal injuries, that if defendant's train dashed, out from behind box cars on the track, in view of plaintiff's team, and made unneces- sary noises defendant failed to exer- cise ordinary care. Missouri, K. & T. Ry. Co. of Texas v. Burk (Tex. Civ. App.) 146 S. W. 600. An instruction that if plaintiff knew, or ought to have known, that the engine was ap- proaching and was dangerously near, and undertook to cross the track, hS cannot recover, is an expression of opinion that it is negligence to cross a track in front of an approaching engine which one knows, or ought to know, is dangerously near. Wright V. Western & A. R. Co., 77 S. E. 161, 139 Ga. 343. A requested charge that if plaintiff's husband deliberately went on the railroad track at a cross- ing in front of an approaching train, thinking that he could cross before it reached liim, and miscalculating its speed, plaintiff could not recover for 69 COMMENT ON PROBATIVE EFFECT OF EVIDENCE §34 wanton negligence, ^^ or that certain facts constitute contributory neg- ligence,^' or that certain facts do not show negligence,^" or that'certain his death, though the railroad com- pany may have been negligent in running at a high speed and in failing to check the speed of the train at the crossing, was properly refused, as it would havte been in effect an instruc- tion that certain facts would consti- tute negligence of the husband. Southern Ry. Co. v. Grizzle, 62 iS. E. 177, 131 Ga. 287. An instruction, in an action against a railway company for killing an animal on its track at a public crossing in a district within which stock was prohibited from run- ning at large, in which the evidence showed that the whistle of the loco- motive was not blown nor the bell rung at the crossing, that, if the com- pany failed to sound the whistle or ring the bell before passing the public crossing, the company was negligent per SB, and, if the company was guilty of gross negligence in failing to blow the whistle or ring the bell or in checking the speed of the train after discovering the animal's peril, a ver- dict for plaintiff was authorized. Mis- souri, K. & T. By. Co. of Texas v. Scofield (Tex. Civ. App.) 98 S. W. 435. An instruction. In an action against a railroad company for killing an animal on its track at a public cross- ing, which authorized a finding that the company's employes in charge of the train were guilty of gross negli- gence if, in approaching the crossing, they failed to sound the whistle or ring the bell, is erroneous. Missouri, K. & T. Ky. Co. of Texas v. Scofield (Tex. av. App.) 98 S. W. 435. A charge to find for defendant unless the jury believe the parties in charge of the empty cars used more force than necessary in attaching them to the caboose, or were otherwise negligent in making the coupling, is a charge on the weight of evidence, making the use of unnecessary force in attaching the cars negligence per se, though in other portions of the charge failure of those engaged in annexing the empty cars "to exercise ordinary care to avoid Injuring those in the ca- boose," if on account of such failure "the empty cars were run violently against the caboose," to plaintiff's in- jury, was made the test of liability. Houston & T. C. Ky. Co. v. Burns (Tex Civ. App.) 63 S. W. 1035. 2 7 Southern Ry. Co. v. Hyde, 61 So. 77, 183 Ala. 346. 2 8 u. S. (C. C. A. Ohio) Harmon v. Barber, 247 F. 1, 159 C. C. A. 219, certiorari denied 38 S. Ct. 335, 246 U. S. 666, 62 L. Ed. 929. Ala. North Alabama Traction Co. V. Taylor, 57 So. 146, 3 Ala. App. 456; Birmingham Ry., Light & Power Co. V. Fox, 56 So. 1013, 174 Ala. 657; Louisville & N. R. Co. v. Johnson, 50 So. 300, 162 Ala. 665; Birmingham Ry., Light & Power Co. v. Williams, 48 So. 93, 158 Ala. 381 ; Southern Ry. Co. V. Hobbs, 43 So. 844, 151 Ala. 335. Ark. B. L. Bruce Co. v. Yax, 199 S. W. 635, 135 Ark. 480. Cal. Worley v. S'preckels Bros. Commercial Co., 124 P. 697, 163 Cal. 60. 111. Jones & Adams Co. v. George, 81 N. E. 4, 227 111. 64, reversing 'judg- ment 125 111. App. 508; Pittsburgh, C, C. & St. L. Ry. Co. v. Banfill, 69 N. E. 499, 206 111. 553, affirming judg- ment 107 111. App. 254; Vittum v. Drury, 161 111. App. 603; Chicago & A. R. Co. V. Truitt; 68 111. App. 76. Ind. Chicago & E. R. Co. v. Hun- ter, 113 N. E. 772, 65 Ind. App. 158 Cleveland, C, C. & St. L. Ry. Co. v. Schneider, 80 N. E. 985, 40 Ind. App 38; Indiana Steel & .Wire Co. v, Studes, 119 N. E. 2, 187 Ind. 469; American Car & Foundry Co. v. Adams, 99 N. E. 993, 178 Ind. 607. Iowa. Lunde v. Cudahy Packing Co., 117 N. W. 1063, 139 Iowa, 688. N. C. Sanders v. Atlantic Coast Line R. Co,, 76 S. E. 553, 160 N. C. 526. Okl. Pioneer Hardwood Co. v. Thompson, 153 P. 137, 49 Okl. 502. Pa. Muslck V. Borough of Lat- rohe, 39 A. 226, 184 Pa. 375, 42 Wkly. Notes Cas. 209. S. C. Martin v. Columbia Electric St. Ry., Light & Power Co., 66 S. B. 993, 84x S. C. 568. Tex. International & G. N. Ry. Co. V. Jones (Civ. App.) 175 S. W. 488 ; 2 See note 29 on following page. 34 INSTRUCTIONS TO JURIES 70 facts do not show contributory negligence,^" or that certain facts show the exercise of due care.^^ Missouri, K. & T. Ey. Co. of Texas V. Rogers, 128 S. W. 711, 60 Tex. Civ. App. 544 ; Gulf, O. & S. F. Ry. Co. v. Dickens, 118 S. W. 612, 54 Tex. Civ. App. 637; Missouri, K. & T. Ry. Co. of Texas. V. Balliet, 107 S. W. 906, 48 Tex. Civ. App. 641 ; International & G. N. R. Co. V. Howell (Civ. App.) 105 S. W. 560; City of San Antonio v. Porter, 59 S. W. 922, 24 Tex. Civ. App. 444; Missouri, K. & T. Ry. Co., of Texas v. Rogers (Civ. App.) 40 S. W. 849, reversed 40 S. W. 956, 91 Tex. 52. Instructions improper within rule. An instruction making it neg- ligence per se for a passenger to at- tempt to alight from a moving train. Houston & T. C. Ry. Co. v. Moss (Tex. Civ. App.) 63 S. W. 894. An in- struction, in an action for injuries to a switchman by falling between two cars which had been uncoupled to make a flying switch, that if plaintiff heard one of his fellow servants call that he would uncouple the cars he could not recover, or if a man of ordi- nary prudence, before attempting to step across the space between the cars, would have looked to see which <;ar was to be uncoupled, and if plain- tiff failed to look, and such failure was negligence which caused or con- tributed to the accident, plaintift could not recover. Missouri, K. & T. Ry. Co. of Texas' v. Stinson, 78 S. W. 986, 84 Tex. Civ. App. 285. 2 9 Ala. Southern Ry. Co. v. B, L. Kendall & Co., 69 So. 328, 14 Ala. App. 242, certiorari denied Bx parte Southern Ry. Co., 69 So. 1020 ; Birm- ingham, B. & B. R. Co. V. Feast, 68 So. 294, 192 Ala. 410; L6uisville & N. R. Co. V. Holland, 55 So. 1001, 173 Ala. 675; Alabama Great Southern R.'Co. V. McWhorter, 47 So. 84, 156 Ala. 269 ; Duncan v. St. Louis & S. F. R. Co., 44 So. 418, 152 Ala. 118. Cal. WyckofC V. Southern Pae. Co., 87 P. 203,' 4 Cal. App. 94. Colo. Independence Coffee & Spice Co. V. Kalkman, 156 P. 135, 61 Colo. 98. Ga. City of Moultrie v. Land, 89 S. B. 485, 145 Ga. 479 ; Southern Ry. Co. V. Sheffield, 56 S. E. 838, 127 Ga. 569. ni. Pittsburg, C. C. & St. L.-Ry. Co. V. Robson, 68 N. B. 468, 204 111. 254 ; Chicago & B. I. R. Co. v. Rains, 67 N. E. 840, 203 111. 417 ; Toledo, P. & W. Ry. Co. V. Parker, 73 111. 526; Strom V. Postal Telegraph-Cable Co., 200 111. App. 431, transferring back to Appellate Court from Supreme Court 111 N. E. 555, 271 lU. 544. Ind, Pittsburgh, C, C. & St. L. Ry. Co. V. Pence, 113 N. B. 7, 185 Ind. 495. iMd. Hunner v. Stevenson, 89 A. 418, 122 Md. 40. Mich. Babbitt v. Bumpus, 73 Mich. 331, 41 N. W. 417, 16 Am. St. Rep. 585. Mo. Dutcher v. Wabash R. Co., 145 S. W. 63, 241 Mo. 137 ; Crawford V. Kansas City Stockyards Co., 114 S.' W. 1057, 215 Mo. 394 ; Zeis v. St. Louis Brewing Ass'n, 104 S. W. 99, 205 Mo. 638. N, Y. Cline V. Northern Cent. R. 3 Ark. St. Louis & S. P. R. Co! V. Carr, 126 S. W. 850, 94 Ark. 246. 111. Bilers v. Peoria By. Co., 200 111. App. 487; Johnson v. Galesburg & Kewanee Electric Ry. Co., 193 111. App. 387. Ind. Cleveland, C, C. & St. L. Ry. Co. V. Cloud, 110 N. E. 81, 61 Ind. App. 256. Mass. Rubinovitch v. Boston Ele- vated Ry. Co., 77 N. B. 895, 192 Mass. 119. Mo. Woodward v. Wabash R. Co., 133 S. W. 677, 152 Mo. App. 468. N. Y. Cooke V. Union Ry. Co. of New Xork City (Sup.) Ill N. Y. S. 708. Tex. Ft. Worth & D. C. Ry. Co. v. Watkins, 108 S. W. 487, 48 Tex. Civ. App. 568. Utah. Loofborrow v. Utah Light & Ry. Co., 88 P. 19, 31 Utah, 355. Vt. Place V. Grand Trunk Ry. Co. in Canada, 71 A. 836, 82 Vt. 42. 31 City of Chicago v. Kubler, 133 111. App. 520; City of Covington v. Whitney, 99 S. W. 337, 30 Ky. Law Rep. 659. 71 COMMENT ON PROBATIVE EFFECT OF EVIDENCE §35 § 35. Specific applications of rule in criminal cases In criminal cases the above rule has been applied to instructions with regard to the presence or absence of a motive/^ to an instruction that Co., 168 N. Y. S. 303, 181 App. Div. 203; Thomson v. Seaman, 73 N. Y. S. 488, 6T App. Div. 58. N. C. Sherrill v. Western Union Tel. Co., 116 N. C. 655, 21 S. B. 429. B. I. Chobanian v. Washburn Wire Co., 80 A. 394, 33 R. I. 289, Ann. Cas. 1913D, 730; Blackwell v. O'Gor- man Co., 49 A. 28, 22 R. I. 638. S. C. Carolina Rice Co. v. West Point Mill Co., 82 S. E. 679, 98 S. C. 476 ; Bamberg v. South Carolina R. Co., 9 S. C. 61, 30 Am. Rep. 13. Tex. Gulf, T. & W. Ry. Co. v. Dickey (Civ. App.) 171 S. W. 1097; Pecos & N. T. Ry. Co. v. Welshimer (Civ. App.) 170 S. W. 263 ; Texas & P. Ry. Co. V. Wiley (Civ. App.) 155 S. W. 356; Texas & P. Ry. Co. v. Tuck (Civ. App.). 116 S. W. 620; Houston & T. 0. R. Co. v. Grych, 103 S. W. 703, 46 Tex. Civ. App. 4.39; Houston & T. C. R. Co. v. O'Donnell (Civ. App.) 90 S. W. 886, judgment reversed 92 S. W. 409, 99 Tex. 636; International & G. N. R. Co. v. McVey (Civ. App.) 81 S. W. 991, rehearing denied 83 S. W. 34 and reversed 87 S. W. 328, 99 Tex. 28; Johnson v. Gulf, C. & S. F. Ry. Co., 2 Tex. Civ. App. 139, 21 S. W. 274. Instructions improper wittin rule. An instruction, in an action , for the death of a street car passen- ger falling from a car while riding on the platform when intoxicated, that the company was not justified under the evidence in refusing to ac- cept decedent as a passenger, and it was not the company's duty to place a watch Qver him, but simply to use such caution for his safety as his conduct or appearance would indi- cate to a man of ordinary prudence to be necessary under the circum- stances, etc. Benson v. Tacoma Ry. & Power Co., 98 P. 605, 51 Wash. 216, A charge, in an action for death of a fireman killed by reason of a derail- ing switch being left open, "that, if you believe the engine was caused to leave the track on account of de- fects in the derailing appliances, and those defects were caused by the re- pair man having taken some pipes, rods, and connections out temporarily to repair them, and said repairs were necessary to maintain the appliance in proper condition, and they were to be kept out only a short time, then you cannot find that such act was an act of negligence." Hines v. Mills (Tex. Civ. App.) 218 S. W. 777. An instruction that employes, operating a hand car by which plaintifC, a co- employ6, was struck, were entitled to act on the presumption that plaintiff, who was walking on the track, would leave the same in time to prevent in- jury, unless he did or said something to indicate that he would not get out of the way. Chicago, R. I. & T. Ry. Co. V. Long, 74 S. W. 59, 32 Tex. Civ. App. 40, writ of error denied 75 S. W. 483, 97 Tex. 69. A charge, in an action against a railroad company, that if the jury should find and be- lieve from the facts that the alleged defective condition of the track, if any, was of a hidden and concealed character, which could not and would not have been discovered by the exer- cise of ordinary care, then plaintiff cannot recover in this case, and in that event it is Immaterial whether the track at the place in question had been properly inspected or not. Gal- veston, H. & S. A. Ry. Co. v. Roberts (Tex. Civ. App.) 91 S. W. 375. An instruction, in an action for injuries in a crossing accident, that if de- fendant's employes on the engine did all they could to make plalntifC leave the track and avoid injuring him, and that the means they used were such as a person of ordinary care would have used under the same cir- cumstances, then to find for defend- ant, though, they did not apply the air on the engine or attempt to stop 3 2 Beeves v. State, 95 Ala. 31, 11 So. 158; People v. Muhly, 114 P. 1017, 15 Cal. Aw- 416; Harris v. State, 88 S. E. 121, 17 Ga. App. 723 ; State V. Johnson, 72 So. 370, 139 La. 829; Commonwealth v. Dower, 4 Al- len (Mass.) 297. 35 INSTRUCTIONS TO JURIES 72 the failure to show a motive for the alleged crime is a circumstance in favor of the defendant," to instructions with regard to intent or malice,^* to an instruction that the defense of alibi should be received with caution,^ = to an instruction that the proof of one single fact in- consistent with the guilt of the defendant will require an acquit- tal,*" and an instruction will ordinarily be erroneous, as on the weight of the evidence, if it takes from the jury the right to deter- mine the degree of the crime charged." It. Missouri, K. & T. Ry. Co. of Texas v. Reynolds (Tex. Civ. App.) 115 S. W. 340. A charge that, thougi plaintiff was knocked down by de- fendant's street car, and was seen by the driver in time to stop the car before it ran over him, yet if the emergency was sudden, it must ap- pear that the negligence of the driver in failing to stop the car was more than slight to make him negligent. Costley V. Galveston City R. Co., 70 Tex. 112, 8 S. W. 114. Instrnctions not improper with- in rule. In action for injury from negligence in starting a train which struck plaintiff while he was at- tempting to place a' child aboard, a statement in a charge that, if train had started in the usual cburse with- out negligence, plaintiff could not recover, in view cff a charge that, if train started without defendant's negligence, there could be no recov- ery, was not an expression of opinion on facts as to what would constitute defendant's negligence, but was fair- ly adjusted to issue, since jury might infer that, if train stopped, as claim- ed by plaintiff, it was started in usual course. Howard v. Georgia Railroad (Ga. App.) 104 S. E. 26. 38 Ark. Ince v. State, 88 S. W. 818, 77 Ark. 418. Cal. People v. Wilkins, 111 P. 612, 158 Cal. 530; People v. McGee, 111 P. 264, 14 Cal. App. 99; People v. Glaze, 72 P. 965, 139 Cal. 154. Mont. State v. Lu Sing, 85 P. 521, 34 Mont. 31. Neb. Clough V. State, 7 Neb. 320. 3* Cal. People v. Vereneseneckock- ockhoff, 58 P. 156, 129 Cal. 497 ; Peo- ple V. Johnson, 106 Cal. 289, 39 P. 622. Fla. McNair v. State, 55 So. 401, 61 Fla. 35. Ga. Cosper v. State, 79 S. E. 94, 13 Ga. App. 301. Ky. Watkins v. Commonwealth, 142 S. W. 1035, 146 Ky. 449, 38 L. R. A. (N. S.) 1052; Burks v. Common- wealth, 7 Ky. Law Rep. (abstract) 826; Crittenden v. Commonwealth, 3 Ky. Law Rep. (abstract) 56. Neb. Carson v. State, 114 N. W. 938, 80 Neb. 619. N. Y. People v. Webster, 59 Hun, 398, 13 N. T. S. 414; People v. Utter, 44 Barb. 170. Tex. Thomas v. State, 125 S. W. 85, 57 Tex. Cr. B. 452; White v. State, 79 S. W. 523, 45 Tex. Or. R. 602. W. Va. State v. Hertzog, 46 S. E. 792, 55 W. Va. 74. S5 Spencer v. State, 50 Ala. 124 ; State V. Smalls, 82 S. E. 421, 98 S. C. 297. In Iowa it is permissible for the trial judge to disparage, within lim- its, a defense of alibi. State v. Me- nilla, 158 N. W. 645, 177 Iowa, 283. 38 Johnson v. State, 69 So. 396, 13 Ala. App. 140, certiorari denied Ex parte State, 69 So. 1020, 193 'Ala. 682 ; Ex .parte Davis, 63 So. 1010, 184 Ala. 26, denying certiorari Davis v. State, 62 So. 1027, 8 Ala. App. 147. 3 7 Ala. Burkett v. State, 45 So. 682, 154 Ala. 19; Thomas v. State, 43 So. 371, 150 Ala. 31; Washington v. State. 28 So. 78, 125 Ala. 40. Ariz. Vincent v. State, 145 P. 241, 16 Ariz. 297. Cal. People v. Mahatch, 82 P. 779, 148 Cal. 200. 111. Lynn v. People, 48 N. E. 964, 170 111. 527. Iowa. State V. Cafer, 69 N. W. 880, 100 Iowa, 501. Ky. Speaks v. Commonwealth, 149 S. W. 850, 149 Ky. 393; Burgess v. Commonwealth, 11 S. W. 88. Me. StEtte V. Oakes, 50 A. 28, 95 Me. 369. 73 COMMENT ON PEOBATIVE EFFECT OF EVIDENCE §35 The question of the insanity of a defendant in a criminal case is ordinarily a question for the jury,"' as all symptoms and all tests of N. C, State v. Barrett, 43 S. B. 832, 132 N. C. 1005. Ohio. Ldndsay v. State, 24 Ohio Cir. Ct. R. 1. Okl. Fooshee v. State, 108 P. 554, 3 Okl. Cr. 666; Lawson v. Territory, 56 P. 698, 8 Okl. 1. Pa. Commonwealth v. Marclnko, 89 A. 457, 242 Pa. 388; Common- wealth V. Fellows, 61 A. 922, 212 Pa. 297; Commonwealth v. Kovovic, 58 A. 857, 209 Pa. 465. Tex. Gatlln v. State (Cr. App.) 217 S. W. 698 ; Bibb v. State, 205 S. W. 135, 83 Tex. Or. R. 616; French V. State, 117 S. W. 848, 55 Tex. Or. R. 538; Brown v. State (Or; App.) 53 S. W. 639. Va. Gwatkln v. Commonwealth, 9 Leigh, 678, 33 Am. Dec. 264. Instractions not improper witb- in rule. On a murder trial, an in- struction that the judge deemed it his duty to charge on the law of voluntary manslaughter, and a sub- sequent statement that he would later instruct in regard to the grades of voluntary manslaughter, if neces- sary, did not amount to an expression of opinion that a verdict of man- slaughter should be rendered, though such other grades of voluntary man- slaughter were not submitted. Gunn V. State, 99 S. E. 62, 23 Ga. App. 545. An instruction that if the Jury be- lieved from the evidence, beyond a reasonable doubt, that defendant, with malice aforethought, express or implied, inflicted on deceased a mor- tal wound in the manner charged, not in self-defense, as the same was defined in the Instructions, and not on the sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible, and that deceased thereafter died from such wound in the manner charged in the indictment, the jury should find defendant guilty of murder. £!arle v. People, 66 N. B. 32, 200 111. 494, 93 Am. St. Rep. 208. An instruction that, if the jury believe that a shoot- ing occurred as described by accus- ed without any intent to kill, they should acquit, and. If not, they should consider whether accused shot with intent to kill, and which then explatn- 3 8 Ala. Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193. ni. Myatt V. Walker, 44 111. 485. Ind. Plake V. State, 121 Ind. 433, 23 N. E. 273, 16 Am. St. Rep. 408; McDougal V. State, 88 Ind. 24. Iowa. State v. Wegener, 162 N. W. 1040, 180 Iowa, 102; State v. Gren- dahl, 109 N. W. 121, 131 Iowa, 602. Ky. Davidson v. Commonwealth, 188 S. W. 631, 171 Ky. 488. La. State v. Mcintosh, 68 So. 104, A36 La. 1000. Mo. State v. Holme, 54 Mo, 153. Mont. State V. Howard, 77 P. 50, 30 Mont. 518; State v. Keerl, 75 P. 362, 29 Mont. 508, 101 Am. St. Rep. 579. Neb, Phllbrick v. State, 179 N. W. 398; Larson v. State, 137 N, W. 894, 92 Neb. 24. N. H. State v. Jones, 50 N, H. 369, 9 Am. Rep. 242, Okl, Bell v. State (Cr. App.) 168 P. 827; Baker v. State, 130 P. 524, 9 Okl. Cr. 47 ; Litchfield v. State, 126 P. 707, 8 Okl. Cr. 164, 45 L. R. A. (N. S.) 153; Adair v. State, 118 P. 416, 6 Okl. Cr. 284, 44 L. R. A. (N. S.) 119. S, C. State V. Stark, 1 Strob. 479. Tex, Harkness v. State (Cr. App.) 28 S. W. 476. Temporary insanity. An in- struction, in a prosecution for homi- cide, that if defendant's mind was measurably impaired by a blow on his head, and, while ordinarily sane, his mind would become so disordered under excitement as to cause him to lose power to distinguish between right and wrong, and was laboring under such disorder at the time of firing the fatal shot, and magnified through a delusion the danger to which he was exposed, and without malice, and with a perfectly sincere belief that he was in Immediate dan- ger of death at the hands of deceas- ed, fired the fatal shot, he should be acquitted, was properly refusedas on the weight of the evidence, Tidwell V. State, 36 So. 393, 84 Miss, 475," 35 INSTRUCTIONS TO JURIES 74 mental disease are purely matters of fact.'* Thus matters of science in regard to insane delusions, and the possibility of one being possessed of a monomania, such as to excuse him from punishment for the com- mission of a crime^ are matters of fact,*" and the court should not charge as a matter of law that one possessed of an insane delusion is incapable of reasoning upon that subject.*^ So whether a deaf mute is mentally incapable of committing a crime is, on conflicting evidence, peculiarly a question for the jury,*^ and it is for the jury to say wheth- er the accused was so far intoxicated as to be unable to form a guilty intent." ed to the jury what constituted murder in the first degree, second degree, and voluntary manslaughter, and added that there would seem to be no mid- ■dle ground which would reduce the, case from second-degree mvu-der to manslaughter, is not objectionable as coercing the Jury to find a verdict of murder by preventing them from con- sidering the question of manslaught- er. State V. Pulley, 82 A. 857, 82 N. J. Law, 579. A charge that it is pos- sible, under the evidence, for the jury to find the defendants guilty of an as- sault with intent to do bodily harm, 'or to find the defendants guilty of a isimple assault. State v. Montgomery, 83 N. W. 873, 9 N. D. 405. Instruc- tion that the theory of the common- wealth is that the homicide was a willful, premeditated killing, follow- ed by instructions on the subject and a charge that the jury should fix the degree. Commonwealth v. Harris, 85 A. 875, 237 Pa. 597. An instruction that evidence of insanity could not reduce the degree of the murder; that, if defendant committed the murder willfully, deliberately, and premeditately, he was guilty of mur- der in the first degree, unless found to have been in an Irresponsible state of mind, in which case he should be acquitted. Commonwealth v. Hollin- ger, 42 A. 548, 190 Pa. 155. A charge, in a homicide case, that if the jury are satisfied beyond a reasonable doubt that accused is guilty of mur- der, but have a reasonable doubt as to the degree, they will give him the benefit of the doubt and convict of murder in the second degree, is not an indication that the court believes that accused is guilty of murder in the second degree. Tinsley v. State, 106 S. W. 347, 52 Tex. Or. R. 91. An instruction that, if accused unlawful- ly and intentionally hit deceased in the head with a pistol and killed him, though he did not intend to kill, yet he is prima- facie guilty of mur- der in the second degree, is not bind- ing on the jury to find that degree of murder, and does not prevent them from finding voluntary manslaughter or self-defense. State v. Stover, 63 S. B. 315, 64 W. Va. 668. Expressing disbelief in gnilt of higher grade of offense. An in- struction that the court is satisfied that the defendant is not guilty of anything more than a specified grade of the offense charged does not ex- press the opinion that the state has established the commission by de- fendant of the specified degree of the offense of which he is accused. State V. Little, 6 Nev. 281. 3 9 Smith V. State, 62 So. 184, 182 Ala. 38; Porter v. State, 33 So. 694, 135 Ala. 51 ; State v. Jones, 50 N. H. 369, 9 Am. Rep. 242 ; Oborn v. State, 126 N. W. 737, 143 Wis. 249, 31 L. R. A. (N. S.) 966; Steward v. State, 102 N. W. 1079, 124 Wis. 623. io People V. Hubert, 51 P. 329, 119 Oal. 216, 63 Am. St. Rep. 72. *i People V. Hubert, 51 P. 329, 119 Cal. 216, 63 Am. St. Rep. 72. la Belcher v. Commonwealth, 177 S. W.. 455, 165 Ky. 649, Ann. Cas. 1917B, 238. *3 Keeton v. Commonwealth, 92 Ky. 522, 18 S. W. 359; Common- wealth V. Hagenlock, 140 Mass. 125, 3 N. B. 36. 75 COMMENT ON PROBATIVE EFFECT OF EVIDENCE 36 C. Statement by the Court oe the Contentions of the Parties § 36. Rule that such a statement is within the province of the court An instruction stating the contentions of the parties, without ex- pressing any opinion as to their justice oi: legality, is within the province of the court, and is everywhere held not to be objectionable.** Such an instruction, if it sets out the respective positions of the parties fairly, is not faulty as an intimation of an opinion as to what has been proved,*^ and does not consttute a charge on the facts or a comment on the evidence within the prohibition stated supra.** This rule ap- ** Conn. Temple v. Gilbert, 85 A. 380, 86 Conn. 335; Saekett v. Car- roll, 68 A. 442, 80 Conn. 374 ; Dexter V. McCready, 54 Conn. 171, 5 A. 855. Del. Richards v. Richman, 64 A. 238, 5 Pennewill, 558, 562. Ga. Brookman v. Rennolds, 98 S. B. 543, 148 Ga. 721; De GraflEenried V. Menard, 30 S. E. 560, 103 Ga. 651 ; Weekes v. Cottingham, 58 Ga. 559. Iowa. Hawley v. Chicago, B. & Q. R. Co., 71 Iowa, 717, 29 N. W. 787; Reid V. Mason, 14 Iowa, 541. Mich. Rogers v. Ferris, 64 N. W. 1048, 107 Mich. 126. Mo. Price V. Metropolitan St. Ry. Co., 119 S. W. 932, 220 Mo. 435, 132 Am. St. Rep. 588. N. Y. Polykranas v. Krausz, 77 N. Y. S. 46, 73 App. Div. 583; West v. Banigan, 64 N. T. S. 884, 51 App. Div. 328, motion to dismiss appeal denied 63 N. B. 1123, 171 N. T. 632, and af- firmed 65 N. E. 1123, 172 N. T. 622. N. O. Bradley v. Camp Mfg. Co., 98 S. E, 318, 177 N. C. 153; Patillo V. Same, 98 S. B. 323, 177 N. C. 156. Pa. Gilchrist v. Hartley, 47 A. 972, 198 Pa. 132; Avery v. Layton, 119 Pa. 604, 13 A. 528. Tex. Atchison, T. & S. F. Ry. Co. V. Cuniffe (Civ. App.) 57 S. W. 692. Wis. McCann v. Ullman, 85 N. W. 493, 109 Wis. 574. *o Brewer v. Barnett Nat. Bank, 85 S. B. 928, 16 Ga. App. 593; Sea- board Air Line Ry. Co. v. Hunt, 73 S. E. 588, 10 Ga. App. 273 ; Chambers v. Walker, 80 Ga. 642, 6 S. E. 165; Walker v. Southern Bell Telephone & Telegraph Co., 75 S. B. 1024, 92 S. C. 188. ^ *« Cal. Hart v. Fresno Traction Co., 167 P. 885,-175 Cal. 489. Ga. American Trust & Banking Co. V. Harris, 89 S. B. 1095, 18 Ga. App. 610. Ind. Public Utilities Co. v. Han- dorf, 112 N. B. 775, 185 Ind. 254. Me. McLellan v. Wheeler, 70 Me, 285. Mass. Hadlock v. Brooks, 59 N. E. 1009, 178 Mass. 425. N. C. Fourth Nat. Bank of Fay- etteville v. Wilson, 84 S. E. 866, 16ii N. C. 557. S. C. Holcombe v. Spartanburg Ry., Gas & Electric Co., 78 S. B. 231, 94 S. C. 435 ; Berry v. City of Green- ville, 65 S. E. 1030, 84 S. C. 122, 19 Ann. Cas. 978; Rice v. Lockhart Mills, 55 S. E. 160, 75 S. C. 150; Bryce v. Cayce, 40 S. B. 948, 62 S. C. 546; Westbury v. Simmons, 35 S. E. 764, 57 S. C. 467. Tenn. Nashville Ry. v. Norman, 67 S. W. 479, 108 Tenn. 324. Tex. Jones v. Missouri, K. & T. Ry. Co. of Texas (Civ. App.) 157 S. W. 213; Davis v. Mills, 133 S. W. 1064, 63 Tex. Civ. App. 359; Dudley V. Strain (Civ. App.) 130 S. W. 778; Gulf, C. & S. P. Ry. Co. v. Shults, 129 S. W. 845, 61 Tex. Civ. App. 93. Wash. Drumheller v. American Surety Co., 71 P. 25, 30 Wash. 530. Instructions held proper within rule. An instruction in an action on an account for goods sold and de- livered, that the only issue in the case was who made the contract, to whom did plaintifC intend to sell, and who intended to buy. C. B. Crosland Co. V. Pearson, 68 S. E. 625, 86 S. C. 313. A charge in an action for in- jury to land that the plaintifC seeks to recover from the defendant dam- ages in a specific sum "resulting from § 36 INSTRUCTIONS TO JURIES 76 plies to the statement of the claims of the prosecution and the defense in a criminal case.*^ A party is entitled to have his theory of the case presented to the jury in connection with the very facts on which he relies to support it/^ and it is the province of the court, as shown in a subsequent chapter, to determine and define the issues, and the duty of the jury to accept the> interpretation of the pleadings made by the court.'*' Under the above rule an instruction is proper which limits the amount of the recovery to the .amount claimed in the petition or complaint,°° and an instruction that, if the evidence warrants, a plain- tiff may recover in an amount not exceeding the' sum claimed in the complaint, is not open to the objection of intimating that there is evi- dence sufficient to authorize a finding' for the amount so alleged.^^ It is held, however, in some jurisdictions, that it is error for the court to read to the jury, in a personal injury action, the averments of dam- ages in the pleading of the plaintiff, on the ground that it tends to get figures and amounts into the minds of the jurors independent of the evidence. °^ § 37. Limitations of rule As indicated by the foregoing statement of the general rule, where the trial judge undertakes to express the contentions of the parties, he should do so in a manner not likely to weaken their force with the juj-y 53 ajj(j j^jj instruction which, by reason of not fairly stating the position of one party or the other, amounts to a practical direction of a verdict for the opposite party, is of course erroneous."* the negligence of defendant in the man, 107 S. W. 1158, 49 Tex. Civ. App. construction and maintenance of its 45. railroad track over and across his *» Stevens v. Maxwell, 70 P. 873, premises by failure to put in and 65 Kan. S35 ; Cioleman v. Drane, 116 maintain the necessary culverts or Mo. 387, 22 S. W. 801. sluices," and that the defendant an- ^^ Oglesby v. Missouri Pac. Ry. Co., swered by general denial and the 150 Mo. 137, 37 S. W. 829, reversed statute of limitation of two years and on rehearing 51 S. W. 758, 150 Mo. contributory negligence. Interna- 137. tional & G. N. B:. Co. v. Glover (Tex. "^ Cole v. Seattle, R. & S. Ry. Co., Civ. App.) 84 S. W. 604. 85 P. 3, 42 Wash. 462. 4rHawes v. State, 88 Ala. 37, 7 /l?""*^^" y--,o'^??A ^^^ ^""tJ^ So. 302; St«ite v. Smith, 65 Conn. tJt^' % \^^\l^ .^""^A.^^^^o^l}' 283, 31 A. 206; Linder v. State, 86 S. f^^^%\^%f^^'^%^i- ^^' ^^^ ^^• E. 741, 17 Ga. App. 310; Hill v. "'^a fdm^nd'son? State 57 S E State, 78S.E. 1013, 13 Ga. App. 170; 947 10° Ann ^16 Pritchett V. State, 92 Ga. 65, 18 S. E. ,i wells' v. Cumberland Telephone ™ ,s ^ Telegraph Co., 198 S. W. 721, 17S *s M Paso Electric Ry. Co. V. Ruck- Ky. 261. . »». i^x, x Nev. 432. S. C. State V. Cannon, 30 S. E, 589, 52 S.,C. 452. Instrnotions erronebns ivithin- mle. A charge that any confession verbally made by defendant, and written down by another, is subject to mistakes that may arise from mis- understanding the meaning of de- fendant's words, or by using word» not used by defendant, or by substitut- ing the language of the person writing it for that of defendant. Hauk v. State, 46 N. E. 127, 148 Ind. 238 ; Id., 47 N. E. 465, 148 Ind. 238. An in- struction that confessions, when sat- isfactorily established by credible evidence, are the strongest character of testimony, but they should be scan- ned with great caution, and unless the jury are satisfied of the honesty and veracity of the witnesses by whom the confessions are attempted to be proven sucli evidence is most unsatisfacto,ry. Blackburn v. Com- monwealth, 12 Bush (Ky.) 181. SI State V. Fleming, 106 P. 305, 17 Idaho, 471; State v. Bell, 70 Mo. 639. 8 2 Becker v. State, 136 N. W. 17, 91 Neb. 352. 38 Rice V. State, 47 Ala. .38. 8* Goode V. State, 123 S. W. 597, 57 .Tex. Cr. R. 220. 2 8 Ala. Clemmons v. State, 52 So. 467, 167 Ala. 20, 140 Am. St. Rep. 21 ; Goodwin v. State, 102 Ala. 87, 15 So. 571; Long V. State, 86 Ala. 36, 5 So. 443. Del. State V. Smith (Gen. Sess.) 9 Houst. 588, 33 A. 441. Kan. State v. Hayes, 187 P. 675, 106 Kan. 253. Mich. People V. Taylor, 93 Mich. 638, 53 N. W. 777. 2 8Paltin V. State, 151 P. 952, 17 Ariz. 278. Instx'uctions objectionable ivith- in rule. A charge that the jury should find from the evidence wheth- er accused confessed after being prop- erly warned, and, if they so found, convict defendant. McVeigh v. State, 62 S. W. 757, 43 Tex. Cr. R. 17. Instructions not impropeir ^irith- in rule. A charge that, if the jury found confessions were not voluntary, they should acquit, unless they believ- ed from the other evidence that the defendant's guilt had been establish- ed beyond a reasonable doubt. Mor- ris V. State, 46 S. W. 253, 39 Tex. Cr. R. 371. A charge that the confession of defendant may be used in evidence against him if it appears that the same was freely made without com- pulsion or persuasion. * * * The court charges you to wholly disregard the alleged confession of defendant, unless you believe from the evidence that the same, if any, was freely and voluntarily made. If you believe from the evidence that the confes- sion, if any, was made on compulsion or promise on the part of the officer or officers in question, you will wholly dis- regard the alleged confession. The only way in which you can consider the confession, if any, in evidence, is ■91 COMMENT ON PROBATIVE EFFECT OF EVIDENCE §49 •dence, and erroneous. On the other hand, instructions that confes- sions are the strongest and most satisfactory kind of evidence,^® or that the law presumes that statements made by an accused against his own interest are true,'* are equally erroneous. § 49. Corroboration of confessions -Sufficiency of instructions, see post, § 218. The sufficiency of the corroboration of a confession apparently made without improper induceipent is for the jury,*' and the court should not charge that proof of certain facts is sufhcjent to show such corroboration,** and in an instruction that a conviction may be had where a voluntary confession is corroborated only by proof of the corpus delicti, the judge should not use language from which the jury may infer that such a confession, thus aorroborated, will re- quire a conviction, but he should leave them free to pass upon the question whether or not the corroborative evidence, together with that relating to the confession, is sufficient to satisfy them beyorid a reasonable doubt of the guilt of the accused.^" 3 5 Ledbetter v. State, 21 Tex. App. 544, 17 S. W. 427 ; Harris v. State, 1 Tex. App. 74; Morrison v. State, 41 Tex. 516. Instractions improper witbin rule. An instruction, as to alleged •confessions of defendant that, If they were shown to have been understand- ingly made and correctly remembered by the witnesses and substantially re- peated by them on the witness stand, they were "entitled to great weight." State -9. Willing, 105 N. W. 355, 129 Iowa, 72. 3 6 McLemore v. State, 164 S. W. 119, 111 Ark. 457. Charge as to conduct of inno- cent men. In a prosecution for mur- der, it is a usurpation of the province ■of the jury to instruct that sane men who are innocent as a rule do not tnake confession of crime, as it is within the exclusive province of the Jury, and not for the court, to say what its experience of men is in cer- tain matters. Knapp v. State, 25 Ohio Cir. Ct. R. 571. ST Peterson" v. State, 91 S. E. 223, 19 Ga. App. 144. 3 8 Coley V. State, 34 S. E. 845, 110 Ga. 271. Instructions not improper with- in rule. An instruction that proof beyond a reasonable doubt of the cor- pus delicti might be, but was not necessarily, sufficient corroboration of a confession, that the law did not fix the amount of corroboration neces- sapry, and that the jury were the judges whether other evidence suffi- ciently corroborated a confession to justify a conviction, if the jury found the proper confession was made. Dotson V. State, 71 S. E. 164, 136 Ga. 243. An instruction that, if the jury believed a burglary had been commit- ted by somebody as charged in the indictment, then "that would be a sufficient corroboration of the confes- sion to justify a conviction, if the jury believe that it was sufficient corroboration ; that is, it might be a form of corroboration, but the jury in every case are the judges of what corroborations are sufficient" — will not be construed as charging, as a matter of law, that proof of the crime having been committed was sufficient corroboration of the confession. Da- vis V. State, 32 S. B. 158, 105 Ga. 808. 3 9 WImberly v. State, 31 S. E. 162, 105 Ga. 188. § 50 INSTRUCTIONS TO JURIES 92 § 50. Dying declarations Necessity and sufficiency of instructions on credibility and weight of dying declarations, see post, § 158. The weight and credibility of the dying- declarations of the vic- tim of a crime are for the jury in a criminal prosecution of the al- leged criminal.*" The court cannot, therefore, properly give an in- struction as to the weight and concliisiveness of such declara- tions,*^ and instructions which caution -the jury that they should be received with caution, or which, disparage the value of evidence of them,*'' as by calling the attention of the jury to the fact that such declarations are not made under oath with opportunity for cross-examination,** are erroneous, as invading the province of the jury. Equally erroneous are instructions which state that dying declarations are entitled to receive the same weight and credit as testimony taken under the sanction of an oath,** and it is proper to refuse the negative of such a proposition.*"* It is proper, how- ever, to tell the jury that an alleged dying declaration is admitted merely on prima facie evidence of its verity, and that the jury must determine whether it is, as a matter of fact, a dying declara- tion, such instruction not being open to the objection that it ex- presses the opinion of the court that there is prima facie evidence as to the truth of such declaration.*" 40 Postell V Commonwealth, 192 S. State v. McCanon, 51 Mo. 160; State W. 39, 174 Ky. 272 ; Gurley v. State, v. Scott, 142 P. 1053, 37 Nev. 412. 57 So. 565, 101 Miss. 190. " In Georgia, an instruction telling *i People V. Amaya, 66 P. 794, 134 the jury that dying declarations stand Cal. 531. on tlie same plane as testimony given *2 Shenkenberger V. State, 57 N. B. ' under oath is not objectionable; as 519, 154 Ind. 630 ; State v. McLaugh- dealing with the weight of the testi- lin, 70 So. 925, 138 I.a. 958. mony. Josey v. State, 74 S, B. 282, *3 People V. Dallen, 132 P. 1064, 21 137 Ga. 769 ; Kobinson v. State, 88 S. Cal. App. 770; State v. Clark, 63 S. E. 410, 17 Ga. App. 751. ^. But in E 402 64 W Va. 625. this jurisdiction an instruction that ''.'.'. ^' . dying declarations are admitted In Mississippi, however an in- ^^ ^jjg ^^ ^hat a person is as struction that the dymg declarations ..g^jg., ^o tell the truth when in the of the deceased, made to his wife^ are articles of death as when under not entitled to the same credit as if oath is held erroneous; the use of the the deceased was still alive and testi- -word "sure" being considered to in- fying under oath, that it is a species flicate the judge's opinion as to the of hearsay evidence, and is intrinsl- weight and value of dying statements cally weaker than if the defendant as compared with testimony in con- was present, and the jury alone are flict with them. Darby v. State, 84 the judges of its weight and force, S. E. 724, 16 Ga. App. 171. has been held not objectionable, as on le sims v. State, 36 So. 138, 139 the weight of evidence. Lipscomb v. Ala. 74, 101 Am. St. Rep. 17; State State, 23 So. 210, 75 Miss. 559. v. Reed. 137 Mo. 125, 38 S. W. 574. i* People V. Warren, 102 N. B. 201, 4o Waters v. State, 104 S. B. 626, 259 111. 213, Ann. Gas. 19140; 219; 150 Ga. 623. 93 COMMENT ON PROBATIVE EFFECT OF EVIDENCE § 51 § 51. Opinion and expert evidence Comparative values of opinion evidence and other evidence, see post, § 56. SuflBciency of instructions, see post, §§ 208-210. The question of the weight to be given to the opinions of experts is for the jury,*' and, except in those jurisdictions where the com- mon-law rule of allowing the court to comment on the evidence prevails,** the general rule is that instructions which place a value upon such testimony, or indicate its Worth,** or which, on the one. hand, commend, exalt, or attach conclusive effect to the opinions of experts,^" or, on the other hand, discredit or depreciate such evi- dence, or permit the jury to disregard it,°^ invade the province of 47 In re Anderson's Appeal, 66 A. 7, 79 Conn. 535; Colee v. State, 75 Ind. 511; Snyder v. State, 70 Ind. 349; Davis v. State, 35 Ind. 496, 9 Am. Rep. 760. 48 St. Louis, I. M. & S. Ry. Co. v. Phillips (C. C. A. Ark.) 66 F. 35, 13 C. C. A. 315 ; Brower v. Emerson, 10 N. J. Law, 279. 4» Crump V.' Knox, 89 S. E. 586, 18 6a. App. 437; Indianapolis Traction & Terminal Co. v. Taylor, 103 N. E. 812, 55 Ind. App. 309; Louisville & S. I. Traction Co. v. Worrell, 86 N. E. 78, 44 Ind. App. 480; Eggers v. Eggers, 57 Ind. 461; Rivard v. Ri- vard, 109 Mich. 98, 66 N. W. 681, 63 Am. St. Rep. 566. 6 Ala. Birmingham Ry., Light & Powet Co. V. Drennen, 67 So. 386, 190 Ala. 176 ; Holloway v. Cotten, 33 Ala. 529. Ga. Rouse V. State, 69 S. E. 180, 135 Ga. 227; Smith v. State; 56 S. E. 116, 127 Ga. 56 ; Wall v. State, 37 S. E. 371, 112 Ga. 336; Merritt v. State, 34 S. E. 361, 107 Ga. 675 ; Ry- der V. State, 28 S. B. 246, 100 Ga. 528, 38 L. R. A. 721, 62 Am. St. Rep. 334. Ind. Cuneo v. Bessoni, 63 Ind. 524. Mich. Stone v. Chicago & W. M. Ry. Co., 66 Mich. 76, 33 N. W. 24. Mo. Hampton v. Massey, 53 Mo. App. 501. N. C. Hancock v. Western Union Telegraph Co., 55 S. B. 82, 142 N. C. 163. 51 Ala. Burney v. Tori'ey, 100 Ala. 157, 14 So. 685, 46 Am. St. Rep. 33; Gunter v. State, 83 Ala. 96, 3 So. 600. Cal. In re Hess' Estate, 192 P. 35. ni. People V. Harvey, 122 N. B. 138, 286 111. 593. Iowa. Long v. Travelers' Ins. Co., 85 N. W. 24, 113 Iowa, 259; Brush V. Smith, 82 N. W. 467, 111 Iowa, 217; State v. Townsend, 66 Iowa, 741, 24 N. W. 535. Kan. Ball v. Hardesty, 16 P. 808, 38 Kan. 540. Mich. People V. Seaman, 107 Mich. 348, 65 N. W. 203, 61 Am. St. Rep. 326. Mo. Wheeler v. Chestnut, 69 S. W. 621, 95 Mo. App. 546; Hull v. Citv of St. Louis (Sup.) 39 S. W. 446; Kansas City, N. & Ft. S. R. Co. v. Dawley, 50 Mo. App. 480. N. Y. People v. Webster, 59 Hun, 398,. 13 N. Y. S. 414; Templeton v. People, 3 Hun, 357, 6 Thomp. & C. 81. N. C. Ferebee v. Norfolk South- ern R. Co., 83 S. E. 360, 167 N. C. 290. Pa. Pannell v. Commonwealth, 86 Pa. 260. Instructions held improper \rith- in rule. An instruction, in proceed- ings to probate a will, contested on the ground that decedent was not of sound mind, where physicians, with- out objection, testified as experts, in the form of answering hypothetical questions, that the testimony of ex- perts, dependent , on hypothetical questions, was unsatisfactory, be- cause it could not convey the precise reasons why the conclusions were reached, and was unreliable, because frequently based on speculations, and that such opinions were not entitled to as much weight as facts, and that §51 INSTRUCTIONS TO JURIES 94 the jury, and are therefore erroneous, and properly refused, both in civil actions and criminal prosecutions. Within this rule are instructions that the testimony of experts is supposed to be the best that can be furnished,^^ that such testimony is to be received with caution, or scrutinized with the utmost care,^^ opinions based on the same facts were often diametrically opposed to each ■other. In re Blake's Estate, 68 P. 827, 136 Cal. 306, 89 Am. St. Kepi 135. An instruction that the abstract opin- ion of any witness, medical or of any other profession, is of no importance, but that it was a juror's duty to ar- rive at his conclusion on his own judgment, exercised in a reasonable way after carefully weighing all the evidence, and that no judical tribunal would be justified in deciding for or against the legal respolisibility of one charged with insanity on the opinion of witnesses, however numerous or respectable, was properly refused. People V. Buck, 91 P. 529, 151 Oal. 66T. Rule in Iowa. A statement, in an instruction on expert testimony In a criminal prosecution, that, while the profession of law has not fully kept pace with that of medicine on the subject of insanity, medical authori- ties have propounded doctrines re- specting it as an excuse for criminal acts which a due regard for the safe- ty of the community and an enlight- ened public policy must prevent ju- ries from adopting as the law of the land has been held improper criti- cism. State V. McCullough, 87 N. W. 503, 114 Iowa, 532, 55 L. R. A. 378, 89 Am. St. Rep. 382 ; although a simi- lar instruction was approved in an earlier case. State v. Hockett, 70 Iowa, 442, 30 N. W. 742; a distinc- tion being made between the two cases on the ground that in the earlier ease the testimony was given in re- sponse to hypothetical questions while in the distinguishing case the experts testified on the basis of personal knowledge. Instructions held not erroneous iiritliin rule. An instruction, in an ac- tion on accident policy, in which the evidence as to the cause of Insured's death was conflicting, that the opinions of experts as to the cause of insured's death were not binding on the jury, but it was for them to determine from all the facts, including the opin- ion of such experts, what was the cause of his death, and that the jury should give to the expert evidence such weight as they deemed it en- titled to after considering the wit- ness' knowledge and skill as disclosed, and all the other facts shovm in their testimony, was not objectionable as belittling the testimony of the physi- cians. Morrow v. National Masonic Ace. Ass'n, 101 N. W. 468, 125 Iowa, 633. An instruction that the jury should consider expert testimony with great caution; that they should make a painstaking investigation of all the facts, to reach the trilth, and must not be confused or misled by such tes- timony, because, while such testimony is sometimes the only means or the best way to reach the truth, yet it is largely a field of speculation, beset with pitfalls and uncertainties, and requires patient and Intelligent in- vestigation, was not erroneous, as dis- criminating too strongly against such evidence, and because it warned the jury not to be misled or confused thereby. Fisher v. Travelers' Ins. Co., 138 S. W. 316, 124 Tenn. 450, Ann. Cas. 1912D, 1246. 62 Kansas City, W. & N. W. R. Co. V. Ryan, 49 Kan. 1, 30 P. 108. 63 Cal. People v. Wilkins, 111 P. 612, 158 Cal. 530. Iowa. Madden v. Saylor Coal Co., Ill N.(W. 57, 133 Iowa, 699. Kan. Atchison, T. & S. F. R. Co. V. Thul, 32 Kan. 255, 4 P. 352, 49 Am. Rep. 484. Miss. Coleman v. Ad^ir, 23 So. 369, 75 Miss. 660 ; Louisville, N. O. & T. Ry. Co. V. Whitehead, 71 Miss. 451, 15 So. 890, 42 Am. St. Rep. 472. Neb.' Weston v. Brown, 30 Neb. 609, 46 N. "W. 826. Wash. Gustafson v. Seattle Trac- tion Co., 68 P. 721, 28 Wash. 227. In Michigan it has been held that, 95 COMMENT ON PROBATIVE EFFECT OF EVIDENCE §51 that such evidence is usually of very little value," or that it is gen- erally regarded as of a weak and unsatisfactory character.^ = The court may, however, instruct in general terms that the jury is not bound to accept as true the opinions of expert witnesses,^ nor taact upon them to the entire exclusion of other testimony, ''^ and that the jury should disregard the opinions of expert witnesses, if they be- lieve them to be unreasonable.^* In other words, the jury may be told that they are to apply the same general rules to the testimony of experts that govern in determining the weight of oth'er testi- , mony.^" , A general instruction on expert testimony that this kind of evi- dence is competent, and should be given such weight as in the judg- ment of the jury it is entitled to receive, is proper, and does not take from the jury the right to determine the weight of such evidence,®* and where the testimony consists of the opinion of experts, which is uncontradicted, the court may direct a verdict in case the jury be- lieve such testimony.'^ In some jurisdictions it is proper for the court to charge that, in considering the weight to be attached to the where the Issue Is as to the Insanity of an accused and the evidence of in- sanity is slight, it is not error to charge that expert testimony is to be weighed with great caution, and Is exposed to a reasonable degree of suspicion, which in many instances results from employment. People v. Perrttnan, 72 Mich. 184, 40 N. W. 425. 5* Efegers V. Eggers, 57 Ind. 461. 55 Davis V: Lambert, 95 N. W. 592, 69 Neb. 242 ; Hayden v. Frederickson, 80 N. W. 494, 59 Neb. 141. 58 Wiley V. St. Joseph Gas Co., Ill S. W. 1185, 132 Mo. App. 380; Com- monwealth V. Shults, TO A. 823, 221 Pa. 466. 5 7 Wagner v. State, 116 Ind. 181, 18 N. E. 833. 6 8 Hull V. City of St. Louis, 138 Mo. 618, 40 S. W. 89, 42 L. R. A. 753. 69 Epps V. State, 102 Ind. 539, 1 N. E. 491; State v. Malloy, 78 S. B. 995, 95 S. C. 441, Ann. Cas. 19150, 1053, judgment affirmed Malloy v. State of South Carolina, 35 S. Ct. 507, 237 U. S. 180, 59 L. Ed. 905; Atkins V. State, 105' S. W. 353, 119 Tenn. 458, 13 L. R. A. (N. S.) 1031. Instmctions held proper Trith- in rule. An instruction that expert testimony must be weighed as other testimony, taking into consideration the knowledge possessed by the wit- nesses testifying as experts, the mat- ters testified to by them, and the other evidence in the case, that the jury should give to expert testimony such credit only as they deem it just- ly entitled to receive, etc., does not disparage expert testimony, but cau- tions the jury against blindly accept- ing what experts have testitied to. Reynolds v. Smith, 127 N. W. 192, 148 Iowa, 264. An instruction on a trial for murder, where the defense was insanity, that the opinions of nonex- perts — acquaintances of defendant, who testified to facts from which they concluded he was insane — as to de- fendant's insanity were to be received and weighed only in the light of the facts related by them, and that the ju- ry must judge of the reasonableness of those opinions from such facts, and give them such weight as they might deem proper, and that both the ex- pert and nonexpert testimony should be subjected to a careftil and pains- taking investigation. Wilcox v. State, 94 Tenn. 106, 28 S. W. 312. 80 Powell V. Chittick, 89 Iowa, 513, 56 N. W. 652; Jameson v. Weld, 45 A. 299, 93 Me. 345. 81 Lawson v. Mobile Electric Co., 85 So. 257, 204 Ala. 318. § 51 INSTEUCTIONS TO JURIES 96 testimony of experts, the jury should not overlook their profession- al standing and experience, the view being taken that jurors should not be left without any direction whatever in passing upon the force of such testimony.** It is for the court to say whether a hypothetical case on which the opinions of experts are based corresponds to, and coincides with, the facts, and it is error to submit that question to the jury."* § 52. Parol evidence The rule against the expression of an opinion by the court as to the weight or sufficiency of the evidence has peculiar application where the evidence is entirely oral,°* and in such a case, although the evidence is all on one side, the court cannot instruct the jury that a certain fact is actually proved thereby.'" § 53. Circumstantial evidence in criminal cases Necessity and suflSclency of Instructions and propriety of particular instruc- tions, see post, §§ 224r-235. • In a criminal case it is an invasion of the province of the jury for the court to tell the jury that all the evidence against the defendant is purely circumstantial,*® or to erect a standard by which to estimate the weight of circumstantial evidence,*' or to instruct that under stated circumsta,nces the requirements of the law as to the sufficien- cy of circumstantial evidence will be satisfied,®* or to lay emphasis upon circumstantial evidence as being legal evidence and sufficient to sustain a conviction. °° But it does not invade the jury's province to charge that the guilt of the defendant, or certain matters looking I 8 2 Oosgrove v. Burton, 78 S. W. 667, C. R. Co., 91 S. W. 446, 115 Mo. App. 104 Mo. App. 698, 676 ; Richmond & Danville R. R. Co. In North Carolina, upon an issue v. Noell, 86 Va. 19, 9 S. E. 473. involving the mental condition of a eo Charleston Ins. & Trust Co. v. party to a contract, a charge, in re- Corner, 2 Gill (Md.) 410. gard to the evidence of a physician es state v. Aughtry, 26 S. E. 619, of thirty years' standing, "that the 49 S. C. 285; Same v. Aughtrey, 27 law attaches peculiar importance to S. B. 199, 49 S. C. 285. the opinion of medical men who have It is not prejudicial error, how- the opportunity of observation upon ever, for a court, in its. charge, to say a question of mental capacity, as by to the jury that the evidence before study and experience they become ex- them is both direct and circumstan- perts in the matter of bodily and men- tial. Davis v. State, 70 N. W. 984, fal ailments," was held to be no in- 51 Neb. 301. vasion of th» province of the jury ; 6!7 Brady v. Commonwealth, 11 the appellate court saying that such Bush (Ky.) 282. instruction was merely the dictate es Harris v. State, 137 P. 365, 10 of common reason. Flynt v. Boden- Okl. Or. 417, Judgment affirmed on hamer, 80 N. O. 205. rehearing 189 P. 846, 10 Okl. Or. 417. 88 State V. Wertz, 90 S. W. 838, 191 69 McCleskey v. State (Tex App.) Mo. 569. , 13 S. W. 997; Harrison v. State, 9 8* McReynolds v. Quincy, O. & K. Tex. App. 407. 97 COMMENT ON PROBATIVE EFFECT OF EVIDENCE §54 towards his guilt, may be shown by circumstantial evidence.''* and the court may instruct that circumstantial evidence should be re- ceived and considered as other evidence/^ or that there is nothing in the nature of circumstantial evidence that renders it any less re- liable than any other class of evidence/^ or, in a proper case, that it is entitled to the same weight as direct evidence,'* and it is not im- proper to charge that prejudice against a conviction on circumstan- tial evidence is wrong/* § 54. Instructions as to effect of good character of accused Necessity and sufficiency of instructions on this head, see post, §§ 237-242. The general rule is that it is error to instruct as to the weight to be attached to evidence of the general good character of the defend- ant in a criminal prosecution,^ ° it being for the jury to determine such weight.'® Thus it is ordinarily error to instruct that evidence of good character will not furnish ground for an acquittal,'^' or that TOMcArthur v. State, 92 S. E. 234, 19 Ga. App. 747; Brown v. State, 169 S. W. 437, 74 Tex. Or. R. 356 ; Suggs V. State, 143 S. W. 186, 65 Tex. Cr. R. 67. Instructions proper -witbin rnle. An instruction, in a prosecution of a physician for soliciting patients by means of a drummer or solicitor, that it was not necessary to prove accused guilty by the testimony of witnesses who had heard him employ a drum- mer or solicitor to solicit patients for him, but such guUt may be establish- ed by proof of facts and circum- stances upon which his guilt might reasonably and substantially be im- plied beyond a reasonable doubt. Burrow v. City of Hot Springs, 108 S. W. 823, 85 Ark. 396. It is not error for tbe court in giving instruc- tions to the jury, in a criminal case, to group together many facts legiti- mately provable in such a case, and which the evidence tends to establish, and then state that "such facts as these, if shown by the testimony, con- stitute circumstantial evidence. Cir- cumstantial evidence is legal evidence, and convictions had upon it are legal convictions. In the case before them the jury will look at all the evidence, and from it make up their minds as to the guilt or innocence of the de- fendant." State V. Camahan, 17 Iowa, 256. INST.TO JTJEIES— 7 71 State V. Johnson, 44 S. B. 58, 66 S. C. 23. 7 2 People V. Simmons, 95 P. 48, 7 Cal. App. 559; Id., 95 P. 51, 7 Cal. App. xiii; People v. Howard, 67 P. 148, 135 Cal. 266. 7s Roberts v. State, 149 P. 380, 17 Ariz. 159. 74 State v. Aughtry, 26 S. E. 619, 49 S. C. 285; Same v. Aughtrey, 27 S. ' B. 199, 49 S. C. 285. 7 5 Whitley v. State, 169 S. W. 952, 114 Ark. 243; Lockhart v. State, 3 Tex. App. 567. .76 state V. Long, 108 A. 36, 7 Boyce (Del.) 397; State v. Northrup, 48 Iowa, 583, 30 Am. Rep. 408 ; Vincent V. State, 37 Neb. 672, 56 N. W. 320. 7 7 State V. Horning, 49 Iowa, 158; People V. Wileman, 44 Hun (N. Y.) 187; Hall v. State, 151 P. 487, 12 Okl. Or. 20. Instruction that evidence of good cbaracter not a convincing matter. Where defendant introduc- ed evidence of good character, and the court instructed that such evi- dence was a circumstance to be con- .sidered in determining the defend- ant's guilt or innocence,, but that it "was not a convincing matter," but it was evident, from other portions of the charge, that the reference to the convincing character of the evi- dence was meant merely to indicate that evidence of good character was § 54 INSTRUCTIONS TO JURIES 98 such evidence should weigh strongly in favor of the defendant,'* and, in some jurisdictions, a charge that such evidence may be sufficient, or may be relied on, to raise a reasonable doubt of the guilt of the defendant, is considered to invade the province ol the jury.'^ But where the evidence is conilicting it is proper for the court to charge that evidence of good character should be considered by the jury in connection with the other facts in the case,*" and the accused is entitled to such an instruction,*^ instead of one merely to the ef- fect that the jury may consider evidence of good character.*^ G. Comparative Values oe Dieeerent Kinds or Classes op Evi- , DENCE Instructions as to comparative credibility of different classes of witnesses, see ante, § 12. § 55. General rule The court cannot state to the jury the relative importance of different kinds of evidence, except as that is settled by some rule of law,"* and as a genei-al rule it is error to instruct and proper to re- fuse to instruct that one kind of evidence is to be preferred to an- other, or is of greater or less value than another.** Thus an in- not sufficient to acquit where tli£ jury S. E. 829, 126 Va. 707. A requested believed from the evidence as a whole, instruction, that "it was more prob- that defendant was guilty, such refer- able that a man of bad character ence was not cause for reversal as a would commit a crime than a man of comment on the facts. State v. New- good character," is properly refused, ton, 70 P. 31, 29 Wash. 373. Long v. State, 91 S. W. 26, 76 Ark. restate v. Jones, 80 P. 1095, 32 493, denying petition for rehearing Mont. 442; Burns v. State, 79 N. E. 89 S. W. 93, 76 Ark. 493. 929, 75 Ohio St. 407; State v. Tar- T9 Maclin v. State, 44 Ark. 115; rant, 24 S. 0. 598. State v. Snow, 51 A. 607, 3 Penne- InstTuctions held improper will (Del.) 259 ; People v. Goodman, within rnle. The refusal of re- 119 N. E. 429, 283 111. 414 ; Anderson quested instruction that the character v. State, 53 So. 393, 97 Miss. 658 ; of the accused when proven is a fact Plege v. State, 133 N. W. 431, 90 Neb. to be considered, and if the jury have 390. any doubt as to the guilt of accused, »« State v. Leppere, 66 Wis, 355, 28 evidence of his good character should N. W. 376. "resolve" that doubt in his favor, was si People v. Hoagland, 69 P. 1063, proper ; the court correctly substitut- 137 Oal. 218. ing. an instruction charging that the 82 People v. McGraw, 72 N. Y. S. character of accused is a fact to be 679, 66 App. Div. 372. considered, and if the Jury have any sa People v. Rowland, 109 P. 894, reasonable doubt as to guilt they 13 Cal. App. 363. should acquit, the requested instruc- 84 u. S. (C. C. A. Tenn.) Coulter v. tion practically taking the case from B. P. Thompson Lumber Cto., 142 F. the jury, by use of the word "re- 706, 74 C. 0. A. 38. solve." Lufty v. Commonwealth, 100 Fla. Wheeler v. Baars, 33 Fla. 99 COMMENT ON PROBATIVE EFFECT OF EVIDENCE 55 struction that the testimony of witnesses, whose opportunities for acquiring knowledge of the facts in dispute are greater than those of other witnesses, is entitled to greater weight than the testimony of such other witnesses, invades the province of the jury,*'' as does an instruction that the direct and positive knowledge of one is bet- ter than the doubtful recollection of many,*® or an instruction that the jury should give greater weight to the testimony of a witness who testified certainly to a transaction than to a witness who tes- tified vaguely, uncertainly, and indefinitely,*' nor should the court charge as to the comparative weight of circumstantial and direct 696, 15 So. 584 ; Williams v. La Pe- notiere, 32 Fla. 491, 14 So. 157. Ga. Smalls v. State, 65 S. E. 295, 6 Ga. App. 502; Wilkinson v. Woo ten, 59 Ga. 584. ni. Toledo, W. & W. Ry. Co. v. Brooks, 81 111. 245; Indiana, I. & I. B. Co. V. Otstot, 113 111. App. 37, judgment affirmed 72 N. E. 387, 212 111. 429. Ind. State V. Sutton, 99 Ind. 300. N. J. State V. Skillman, 70 A. 83, 76 N. J. Law, 464, judgment affirmed 76 A. 1073, 77 N. J. Law, 804. N. Y. Hutchinson v. Market Bank, 48 Barb. 302. Evidence as to boundaries. Where, in an action involving a dis- puted boundary line, the true loca- tion of the corner is for the jury on conflicting evidence, an instruction that a call for an unmarked prairie line is not such a call for an artifi- cial object as will control a course and distance tends to mislead the jury to believe that a call for dis- tance is of greater weight, and pre- vails over a call for the corner to be at a certain designated line, and is therefore objectionable as on the weight of the evidence. Olawson v. Wilkins (Tex. Civ. App.) 93 S. W. 1086. Variance between testimony and documents. When there is a vari- ance between the testimony of a wit- ness and statements made by him in letters at the time of the transaction in question, and the letters are in evidence, it is error to instruct that greater weight must be given to the testimony than to the statements in the letters. Mutual Life Ins. Co. v. Logan (C. O. A. Or.) 87 F. 637, 31 C. C. A. 172. Statements made nrben drunk and IB-hen sober. The relative cred- ibility of statements made by a de- fendant, in a criminal action, when drunk and when sober is for the jury, and there is no rule of law giving the preference to those made when sober. Finch v. State, 81 Ala. 41, 1 So. 565. 80 Himrod Coal Co. v. Clingan, 114 111. App. 568; Muncie Pulp Co. v. Keasling, 76 N. E. 1002, 166 Ind. 479, 9 Ann. Gas. 530. In Pennsylvania, the question turning on the accuracy of certain measurements made on the one hand by trained surveyors, and on the other by unskilled persons, it was not error for the court to call the atten- tion of the jury to the fact that de- fendant's measurements were made by "a baker, attended by a tinsmith, under the supervision of a lawyer." Omensetter v. Kemper, 6 Pa. Super. Ct. 309, 41 Wkly. Notes Cas. 501. 8 6 Dunlap V. Heam, 37 Miss. 471. 87 B. F. Boden Grocery Co. v. Les- lie, 53 So. 815, 169 Ala. 579. Comparative positiveness of testimony. It has been held that it is not error for the court to state to the jury that a witness who swears that "to the best of my recollection" an act was done testifies less positive- ly than one who testifies that "it was done." Gable v. Kauch, 27 S. E. 555, 50 S. C. 95. 55 INSTRUCTIONS TO JURIES 100 evidence,*® and it is proper to refuse to instruct as to the relative importance of surrounding circumstances and inferences.** It is error to instruct that, where the testimony of witnesses is irreconcilably conflicting, the jury, in determining which is entitled to credit, should give great weight to the surrounding circum- stances ; ^° but an instruction that, in case of such conflicting tes- timony, the credit to be given to the different witnesses is to be test- ed by the circumstances and probabilities, no opinion being ex- pressed as to the degree of weight to be attached to such circum- stances, is proper.'^ No general or inexorable rule can be laid down with respect to the comparative weight of testimony in open court and depositions, and it is error to tell the jury that the former class of evidence is en- titled to the greater weight,^^ and where a statute permits, to avoid a continuance of an action on account of the absence of witnesses, the reading in evidence of a statement of what it is expected to prove by such witnesses, the court should not distinguish between the testimony of present witnesses and the substitute for the testi- 88 Oal. People V. Vereneseneckock- ogkhoff, 58 P. 156, 129 Oal. 497; Id., 62 P. Ill, 129 Oal. 497. Ga. Armstrong v. Penn, 31 S. B. 158, 105 Ga. 229 ; Hudson v. Best, 30 S. E. 688, 104 Ga. 181. IdahQ. State v. Marren, 107 P. 993, 17 Idaho, 766. Iowa. State V. CrofCord, 96 N. W. 889, 121 Iowa, 395. Instruction objectionable Tvith- in rule. An instruction in a crimi- nal prosecution that, though error has sometimes been committed by a reliance on circumstantial evidence, yet this species of evidence is npt only proper and necessary, but is sometimes even more satisfactory than the testimony of a single eye- witness, as eyewitnesses may speak falsely. People v. O'Brien, 62 P. 297, 130 Gal. 1. A charge "that law writ- ers say that a chain of circumstances cannot lie, whilst a witness may," be- cause it is calculated to impress on the minds of the jury that the de- fendant's witnesses have sworn false- ly. Cicero v. State, 54 Ga. 156. An instruction, on a trial for murder, in effect announcing to the jury that they need not be alarmed at the idea of finding one guilty on circumstantial evidence, because it was not only le- gal and competent but frequently more convincing than positive testi- mony, even though the facts consti- tuting the chain were testified to by witnesses of doubtful credibility, and that they were as likely to make a mistake and convict an innocent man on positive testimony as on circum- stantial. Harrison v. State, 8 Tex. App. 183. An instruction in a case, where the evidence is entirely cir- cumstantial, that circumstantial evi- dence is often more reliable than the direct testimony of eyewitnesses, and that a verdict of guilty in such cases may rest on a surer basis than when rendered upon the testimony of eye- witnesses whose memory must be re- lied upon, and whose passions and prejudices may have influenced them. State V. Musgrave, 28 S. E. 818, 43 W. Va. 672. 8 Perez v. Maverick (Tex. Civ. App.) 202 S. W. 199. 60 Skow V. Locks, 91 N. W. 204, 3 Neb. (Unof.) 176. »i Shepard v. Davis, 59 N. Y. S. 456, 42 App. Div. 462. 82 Millner v. Eglin, 64 Ind. 197, 31 Am. Eep. 121. 101 COMMENT ON PROBATIVE EFFECT OP' EVIDENCE _ < § 56 mony of those absent.*' It is error to instruct that the ''testimony of witnesses not produced would be superior to that of those testi- fying in the case.'* It is proper, however, for the court to give to the jury a statutory rule that a deposition is as good evidence as if the deponent had testified orally in court.*® § 56. Opinion and expert evidence It is generally considered that it is an invasion of the province of the jury to instruct that the opinions of one class of witnesses are of more or less weight than the opinions of another class,"" or that the opinions of expert witnesses must yield to some other class of evi- dence, °^ or that such opinions are not entitled to greater weight than any other evidence,"' or that the testimony of one class of experts is superior to that of another.'" In one jurisdiction, however, it has been held that, while it is always dangerous for a court to attempt to say that one class of testimony or one class of witnesses ought, under all circumstances, to be given more credit or weight than another,^ and that it is error for the trial court to single out a class of witnesses or testimony, and give the jury an opportunity to magnify the impor- tance of such testimony,'' and that it is proper to refuse to charge, as a matter of law, that the testimony of experts based on personal knowl- edge is entitled to greater weight than that of those who found their opinions on hypothetical questions,' yet the trial court may, in a prop- er case, advise the jury with reference to the relative value of certain species -or classes of evidence; * and in this jurisdiction it is held that an instruction that the testimony of medical experts having personal knowledge of a case may be entitled to greater weight than the opin- ions of experts based upon hypothetical questions, while not commend- able, may sometimes be justifiable,'' and that an instruction that ex- pert testimony on the genuineness of a signature ought not to over- 's state V. Underwood, 75 Mo. 230. bs Ryan v. People, 114 P. 306, 50 04 Brothers v. Home, 79 S. E. 468, Colo. 99, Ann. Cas. 1912B, 1232 ; 140 Ga. 617. People v. Ferraro, 55 N. E. 931, 161 8 6 Olcesd V. Mobile Fruit & Trad- n. Y. 365. '^ ^9-' ^ ?• ^-.^O^i' 2^^."^- ^i?' »" Brack v. State, 2 O. C. D. 477, 2 affirming judgment 112 111. App. 281. qj^.^ ^ir. Ct. R. 160; Persons v. »8 Smith V. Chicago & W. I. R. c,j.„fe QO Tenn 291 16 S W 726 Co., 105 111. 511; Durham v. Smith, ^^^^^' ^" ■^^°°- ^'^^' ^'^ ''■ ^- '""'■ 120 Ind. 463, 22 N. E. 333 ; Cline v. ^ Bever v. Spangler, 93 Iowa, 576, Lindsey, 110 Ind. 337, 11 N. E. 441 ; 61 N. W. 1072. Fulwider v. Ingels, 87 Ind. 414. In 2 Simons v. Mason City & Ft. D. R. re Byrne's Will, 172 N. W. 655, 186 Co., 103 N. W. 129, 128 Iowa, 139. ^°Z\^'f' ^ ^^a T1, oon oc 3 Bever v. Spangler, 93 Iowa, 576. »7 Taylor v. Cox, 153 111. 220, 38 o^ i»t -rp i/yro N. E. 656; Starett v. Chesapeake & ^/!:' i. , „,.„ „„ ^, „, ,„„ O. Ry. Co., 110 S. W. 282, 33 Ky. Law _* 1° ^e Knox's Will, 98 N. W. 468, Rep. 309; Nelson v. McLellan, 71 P. 123 Iowa, 24. 747, 31 Wash. 208, 60 L. R. A. 793, « Hofacre v. City of Monticello, 103 96 Am. St. Rep. 902. N. W. 488, 128 Iowa, 239. §57 INSTEUCTIONS TO JURIES 102 throw the positive and direct evidence of credible witnesses, who tes- tify from their personal knowledge, is proper.* § 57. Positive and negative testimony Necessity and sufficiency of instructions, see post, §§ 211, 212. The jury should not be told to attach no weight to negative testi- mony,' and a charge that, where one witness testifies positively to the existence of a fact and another witness testifies positively to the non- existence of the supposed fact, the former testimony must prevail, is error, since, while the latter testimony is negative in form, it is af- firmative in effect,^ and while, as a general rule, positive testimony will outweigh evidence purely negative in character, it is for the jury to determine in any particular case the comparative values of such evi- dence,'' and, except in jurisdictions where the court is allowed to com- ment on the evidence or express its opinion thereon,^" the general" rule is, both in civil and in criminal cases, that it is error, as invading the ' province of the jury, to instruct that more weight should be given to positive testimony than to testimony essentially negative,^ ^ and such instructions are properly refused.^^ « Ayrhart v. Wilhelmy, 112 N. W. 782, 135 Iowa, 290 ; Bruner v. Wade, 84 Iowa, 698, 51 N. W. 251. 7 Louisville & N. R. Co. v. York, 30 So. 676, 128 Ala. 305. 8 State V. Gates, 20 Mo. 400 ; Bos- ser V. Bynum & Snipes, 84 S. B. 393, 168 N. 0. 340 ; Williams v. Kirkman, 3 Lea (Tenn.) 510. Objection to instmction as ab- stract, as ivell as invading prov- ince of jnry. In an action for an accident at a crossing, it is proper to refuse to instruct tlie jury that "the affirmative testimony of witnesses that the bell was rung and whistle sounded at a given time and place is of greater force and weight than the negative testimony ot witnesses of no greater credibility, and who had no better opportunity of hearing, that the bell was not rung, or the whistle sounded, or that they did not hear them" ; such instruction being a mere abstract proposition, and calculated to influence the jury as to the credit to be given to particular witnesses. Atchison, T. & S. P. R. Co. v. Feehan, 149 111. 202, 36 N. B. 1036, affirming 47 111. App. 66. State V. Gee, 85 Mo. 647. 10 Sevlor's Adm'r v. Rutland R. Co., 91 A. 1039, 88 Vt. 107. 11 Ala. Birmingham Ry., Light & Power Co. v. Seaborn, 53 So. 241, 168 Ala. 658. Ariz. Babb v. State, 163 P. 259, 18 Ariz. 505, Ann. Cas. 1918B, 925. Ark. Keith v. State, 49 Ark. 439, 5 S. W. 880. Fla. Sumpter v. State, 33 So. 981, 45 Ma. 106. ■ Ga. Georgia Ry. & Blectric Co. v. Wheeler, 80 S. E. 993, 141 Ga. 363; Alabama Great Southern R. Co. v. 13 Ark, Sibley v. RatlifEe, 50 Ark. 477, 8 S. W. 686. Ind. Cleveland, C., O. & St. L. By. Co. V. Schneider, 82 N. B. 538, 40 Ind. App. 524 ; Louisville, .N. A. & C. By. Co. V. Stommel, 126 Ind. 35, 25 N. E. 863. la. State v. Chevallier, 36 La. Ann. 81. Mo. Johnson v. Springfield Trac- tion Co., 161 S. W. 1193, 176 Mo. App. 174. Mont. Kansier v. City of Billings, 184 P. 630, 56 Mont. 250. Neb. Crabtree v. Missouri Pac. B. Co., 124 N. W. 932, 86 Neb. 33, 136 Am. St. Rep. 663. Okl. Ayers v. Macoughtry, 117 P. 1088, 29 Okl. 399, 37 L. B. A. (N. S.) 865. 103 COMMENT ON PROBATIVE EFFECT OF ETIDBNCB §57 In sortie jurisdictions such an instruction is not rendered proper by the requirement that the witnesses giving positive testimony shall be equal in credibility and opportunity for knowing the facts in dispute with the witnesses giving the negative testimony. ^^ In Utah such an instruction is error, where the negative testimony is strong enough to support a verdict rendered in accordance with such testimony.^* Con- versely, it is error to instruct that testimony of persons that they did not hear a signal is positive testimony, and of equal weight with that of those who say they heard such signal,^" or that negative testimony by one witness for a party will exactly balance positive testimony biy another witness for the opposite party.^° Brock, 77 S. E. 20, 139 Ga. 248; Wright V. Western & A. R. Co., 77 S. E. 161, 139 Ga. 343; Peak v. State, 62 S. E. 665, 5 Ga. App. 56; Central of Georgia By. Co. v. SoweU, 59 S. E. 323, 3 Ga. App. 142; Central of Georgia By Co. v. Orr, 57 S. B. 89. 128 Ga. 76 ; Cowart v. State, 48 S. E. 198, 120 Ga. 510. 111. Sheppelman v. People, 134 111. App. 556; Chicago & A. By. Co. v. Louderback, 125 111. App. 323. Ind. Vandalia B. Co. v. Baker, 97 N. E. 16, 50 Ind. App. 184; Muncie Pulp Co. V. Keesling, 76 N. E. 1002, 166 Ind. 479, 9 Ann. Cas. 530. Mo. State ex rel. Essex v. Kansas City, Ft. S. & M. By. Co., 70 Mo. App. 634. Okl. Ft. Smith & W. E. Co. v. Moore (Sup.) 169 P. 904. Or. Bussell v Oregon R. & Nav. Co., 102 P. 619, 54 Or. 128. trtah. Haun v. Bio Grande W. By. Co., 62 P. 908, 22 Utah, 346. Testimony as to signals by loco- motive. In an action against a rail- road company to recover for the death of a workman who was run over by one of its trains while work- ing on the track, an instruction that the testimony of witnesses to the ef- fect that the bell and whistle were rung and blown was entitled to more weight than the testimony of persons who testified that they did not hear the bell or whistle is prejudicial er- ror, as, in effect, it teUs the jury to believe defendant's witnesses. Chica- go & N. W. By. Co. V. Dunleavy, 27 111. App. 438, affirmed 129 111. 132, 22 N. E. 15. In 'Wisconsin, as will be more ful- ly shown in a subsequent chapter, where evidence positive in character is arrayed against purely negative evidence, a party will be entitled, in a proper case, to an instruction as- signing superior weight to the former evidence. Eggett v. Allen, 82 N. W. 566, 106 Wis. 633. In North Carolina it is not re- versible error in a proper case to de- clare that positive evidence is en- titled to more weight than negative. State V. Murray. 51 S. E. 775, 139 N. C. 540. isMilligan v. Chicago, B. & Q. E. Co., 79 Mo. App. 393; Haskew v. State, 7 Tex. App. 107. In Georgia it is not error, to in- struct that positive testimony is rather to be believed than negative testimony, with the qualification of other things being equal and the wit- nesses being of equal credibility. Southern By. Co. v. O'Bryan, 45 S. E. 1000, 119 Ga. 147. 1* Haun V. Bio Grande W. Ey. Co., 62 P. 90S, 22 Utah, 346. 15 Gray v. Chicago, R. I. & P. B.. Co., 121 N. W. 1097, 143 Iowa, 268. 13 Beekstrom v. Krone, 125 IlL App. 376, §58 INSTRUCTIONS TO JURIES 104 H. Presumptions op Fact and Inferences from Evidence, Necessity and suflScleney of instructions, see post, §§ 185-202. § 58. Statement of rule Presumptions or inferences of fact, excluding those presumptions or inferences which arise so inevitably and necessarily by processes of logic or law from a given state of facts as to be called legal presump- tions,^^ and excluding presumptions of fact required by positive law, but rebuttable,^' fall within the exclusive province of the jury,^° the chief function of which is to draw their own conclusions from the tes- timony.^" Instructions which restrict the right of the jury to draw any reasonable inference from facts in evidence, or direct them as to what inferences of fact they shall draw from the evidence, are er- ir Cal. People v. Jones, 55 P. 698, 123 Cal. 65; Hill v. Finigan, 77 Cal. 267, 19 Pac. 494, 11 Am. St. Rep. 279. Ga. Hunt v. State, 81 Ga. 140, 7 S. E. 142. Mo. State v. Pyscher, 77 S. W. 836, 179 Mo. 140. S. C. State V. Hardin, 103 S. E. 557, 114 S. C. 280. Tex. Mitchell v. Stanton (Civ. App.) 139 S. W. 1033. In California it is held that, not- withstanding the constitutional man- date that courts shall not charge as to matters of fact, an instruction correctly stating a rule of law ap- plicable to the efCect of evidence, such as the probative efCect of the posses- sion of goods recently stolen. Is not ground for reversal, unless some cir- cumstances peculiar to the particular case would make it tend to mislead or confuse the jury. People v. Far- rington, 74 P. 288, 140 Cal. 656. Fire caused by sparks from loco- motive. In Texas, In an action against a railroad company for In- juries caused by a Are, an instruction that, if the jury find that the 'fire was caused by sparks escaping from a lo- comotive, the defendant Is prima facie negligent, is not on the weight of the evidence. Houston & T. O. K. Co. V. Washington, 127 S. W. 1126, 60 Tex. Civ. App. 391; St. Louis Southwestern Ry. Co. of Texas v. Ross, 119 S. W. 725, 55 Tex. Civ. App. 622; St. Louis Southwestern Ry. Co. of Texas v. McLeod (Civ. App.) 115 S. W. 85; Texas & P. Ry. Co. V. Prude, 86 S. W. 1046, 39 Tex. Civ. App. 144 ; Missouri, K. & T. Ry. Co. of Texas v. Florence (Civ. App.) 74 S. W. 802; Gulf, C. & S. F. Ry. Co. V. Jordan, 60 S. W. 784, 25 Tex. Civ. App. 82 ; Texas & P. By. Co. v. Rice, 59 S. W. 833, 24 Tex. Civ. App. 374; Gulf, C. & S. F. Ry. Co. v. John- son, 50 S. W. 563, 92 Tex. 591, 94 Tex. 649. 18 Bulen V. Granger, 22 N. W. 306, 56 Mich. 207; Wood v. Dean (Tex. Civ. App.) 155 S. W. 363; White v. McOullough, 120 S. W. 1093, 56 Tex. Civ. App. 383; Gibson v. Hill, 21 Tex. 225, 18 Cal. Pacific Imp. Co. v. Max- well, 146 P. 900, 26 Cal. App. 265; People V. Walden, 51 Cal. 588. D. C. Metropolitan R. Co. v. Mar- tin, 15 App. D. C. 552. 111. Brant v. GaUup, 5 111. App. 262; Barnes v. Blackhart, 12 111. 195. Md. Coffin V. Brown, 50 "A. 567, 94 Md. 190, 55 L. R. A. 732, 89 Am. St. Rep. 422. Mo. Winter v. Supreme Lodge K. P. of the World, 69 S. W. 662, 96 Mo. App. 1. S. C. Lowry v. Atlantic Coast Line R. Co., 75 S. E. 278, 92 S. C. 33. Vt. In re Hathaway's Will, 53 A. 996, 75 Vt. 137. 2 Richards v. Fuller, 38 Mich. 653. 105 COMMENT ON PROBATIVE EFFECT OF EVIDENCE §58 roneous, both in civil "^ and in criminal cases/^ and are properly re- 21 Ala, Alversoa v. Little Cahaba Coal Co., 77 So. 547, 201 Ala. 123; Amzl Godden Seed Co. v. Smith, 64 So. 100, 185 Ala. 296 ; Alabama Great Southern R. Co. v. Demoville, 52 So. 406, 167 Ala. 292; King v. Pope, 28 Ala. 601. Ark. Missouri Pac. Ry. Co. v. Byars, 58 Ark. 108, 23 S. W. 583. Cal. Langford v. San Diego Elec- tric By. Co., 164 P. 398, 174 Cal. 729. Fla. Southern Pine Co. v. Powell, 37 So. 570, 48 Fla. 154. Idabo. Park v. Brandt, 119 P. 877, 20 Idaho, 660. 111. Pridmore v. Chicago, R. I. & P. Ry. Co., 114 N. E. 176, 275 111. 386, affirming judgment 192 111. App. 446; Elston & W. Gravel RoEld Co. V. People, 96 111. 584 ; Graves v. Col- well, 90 111. 612 ; Bartholomiew v. Bartholomew, 18 111. 326 ; Wood v. Olson, 117 111. App. 128. Ind. Louisville, N. A. & C. Ry. Co. V. Falvey, 3 N. E. 389, 104 Ind. 409, rehearing denied 4 N. E. 908, 104 Ind 409 1 Union Mut. Life Ins. Co. v. Buchanan, 100 Ind. 63. Iowa. Leiber v. Chicago, M. & St. P. Ry. Co., 84 Iowa, 97, 50 N. W. 547. La. Gove V. Beedlove, 5 Rob. 78; Hewes v. Barron, 7 Mart. (N. S.) 134. Md. Wilson V. Smith, 10 Md. 67. Mich. Wood V. Standard Drug Store, 157 N. W. 403, 190 Mich. 654. N. Y. Panama R. Co. v. Charlies, 54 Hun, 637, 7 N. Y. S. 528. Op. Saratoga Inv. Co. v. Kern, 148 P. 1125, 76 Or. 243. Pa. Lamb v. Prettyman, 33 Pa. Super. Ct. 190. S. C. Hursey v. Surles, 74 S. E. 618, 91 S. C. 284; Yarborough v. Southern Ry., 58 S. E. 936, 78 S, C. 103. Tex. Noblett V. Harper (Civ. App.) 136 S. W. 519 ; White v. McCullough, 120 S. W. 1093, 56 Tex. Civ. App. 383 ; Western Union Tel. Co. v. Bur- gess (Civ. App.) 56 S. W. 237; Rey- nolds V. Weinman (Civ. App.) 33 S. W. 302. Va. Torbert v. Atlantic Coast Line R. Co., 95 S. B. 635, 122 Va. 682. Wis. Hawkins v. Costigan, 21 Wis. 545. Expression of opinion. In some jurisdictions, in accordance with a rule already stated, the expression by a judge in his charge to the jury of his opinion as to an inference of a fact from evidence affords, in gen- eral, no ground for exception ; but he must not instruct them as to such an inference, in such manner that they might well understand that the in- ference is matter of law which they are not at liberty to disregard. State V. Lynott, 5 R. I. 295. Instructions held improper with* in rule. An instruction that if, after considering all the evidence, they believe the testimony of any witness as to certain facts, then they should find accordingly. Chicago Un- ion Traction Co. v. Shedd, 110 111. App. 400. A charge, in an action for injuries to a passenger, when defendant has introduced evidence tending to show that it has used all proper care in avoiding an accident, that the fact of the injury is prima facie evidence of negligence, which defendant must re- but by showing that it has used due care. St. Louis Southwestern Ry. Co. of Texas v. Parks, 76 S. W. 740, 97 Tex. 131, reversing judgment Parks V. St. Louis Southwestern Ry. Co. of Texas, 69 S. W. 125, 29 Tex. Civ. App. 551. A charge, in an action for in- juries received in a railway collision, that where "an injury was received by reason of, and as the direct re- sult of, an unusual occurrence, then the law presumes the occurrence so causing the injury to have happened by reason of negligehce, unless it fur- ther appears by the proof that such unusual occurrence was not the re- sult of negligence, but, on the contra- ry, was caused by some circumstance or cause which the exercise of the greatest care and prudence could not have prevented." Texas Cent. By. Co. V. Burnett, 80 Tex. 536, 16 S. W. 320. A charge that if deceased did not fall off the car, but voluntarily jtimped ofC, then he was guilty of con- tributory negligence or suicide, and plaintiff could not recover. Perez v. San Antonio & A. P. Ry. Co., 67 S. W. 137, 28 Tex. Civ. App. 255. An In- 22 See note 22 on page 108. §58 INSTRUCTIONS TO JURIES 106 fused. ^' An instruction which advises the jury as to the proper pro- struction, in an action for injury to a building by an explosion of gas, that if defendant's pipes, meters, and connections were free from any leak • in a week, or less, before the explosion, the presumption is that they were in such condition at the time of the accident, and unless this presumption is removed, the jury must find for de- fendant. Linforth v. San Francisco Gas & Electric Co., 103 P. 320, 156 qal. 58, 19 Ann. Gas. 1230. An in- struction, in an action on a policy in- suring against loss by fire and light- ning, but not against logs from winds, where tlie testimony showed that the building fell when struck by light- ning, which preceded a wind, that if the jury from their experience deem- ed it incredible that such a, building could fall by reason of being struck by lightning, and If they found that at or about the time the building was struck by lightning there was a heavy wind sufficient to cause the fall of the building, they might by applying their •own knowledge find that the fall of the building was occasioned by wind, ■was objectionable. Home Ins. Co. v. Gagen, 76 N. B. 927, 38 Ind. App. 680. An instruction that, if the accident was caused by the failure of the city to provide proper lights on Its streets near the station grounds of the de- fendant, then the jury must find for the defendant railway company. Iz- lar V. Manchester & A. R. Co., 35 S. E. 583, 57 S. C. 332. An instruction, in an action for falling down a stair- way, where it was disputed whether the, place was light or dark, that if the place was dark it was plaintiff's duty to get a light If he was not familiar with it. Bingham v. Mar- cotte. Cote & Co., 99 A. 439, 115 Me. 459. An instruction that asserts that "when it has been established that the funds or property has reached the hands of the officer, and that the same was not forthcoming when prop- erly or legally demanded, the law presumes an illegal" conversion of such funds or property, and the bur- den of proving the legal use of such property or money is upon the of- ficer." State v. Smith, 13 Kan. 274. A charge, in an action against a rail- road company for killing a dog- on the track, that a dog is an animal of superior intelligence, possessing great- er ability to avert injury than live stock, and that the presumption is 2 3 Ala. Lawson v. State, 76 So. 411, 16 Ala. App. 174; Central of Georgia Ry. Co., v. Dothan Mule Co., 49 So. 243, 159 Ala. 225. Ark. Jenkins v. Midland Valley R. Co., 203 S. W. 1, 134 Ark. 1. Cal. People V. Williams, 142 P. 124, 24 Cal. App. 646 ; Wise v. Wake- field, 50 P. 310, 118 Cal. 107. III. People V. Arnold, 93 N. E. 786, 248 111. 169. Ind. Schillinger v. Savage, 115 N, E. 321, 186 Ind. 189. La. State V. Eldeau, 42 So. 973, 118 La. 385. Md. City & Suburban Ry. of Washington v. Clark, 97 A. 996, 128 Md. 281. Mass. United Shoe Machinery Co. V. Bresnahan Shoe Machinery Co., 83 N. E. 412, 197 Mass. 206; White v. McPherson, 67 N. B. 643, 183 Mass. 533. Micli. Lincoln v. Felt, 92 N. W. 780, 132 Mich. 49; Chisholm v. Pre- ferred Bankers' Life Assur. Co., 70 N. W. 415, 112 Mich. 50. Minn. Kellogg v. Village of Janes- ville, 34 Minn. 132, 24 N. W. 359. Mo. State V. Patton, 164 S. W. 223, 255 Mo. 245; Schlinski v. City of St. Joseph, 156 S. W. 823, 170 Mo. App. 380. Mont. State v. Mahoney, 61 P. 647, 24 Mont. 281. N. Y. People V. Bartholf, 66 Hun, 626, 20 N. T. Supp. 782. N. C. McQuay v. Richmond & D. R. Co., 109 N. C. 585, 13 S. B. 944. Op. De War v. First Nat. Bank, 171 P. 1106, 88 Or. 541. S. C, Lewis V. Pope, 68 S. E. 680, 86 S. C. 285 ; Weaver v. Southern Ry. Co., 56 S. B. 657, 76 S. C. 49, 121 Am. St. Rep. 934. Tex. City of Dallas v. Beeman, 55 S. W. 762, 23 Tex. Civ. App. 315. Vt. Taplin & Rowell v. Marcy, 71 A. 72, 81 Vt. 428 ; In re White's Will, 63 A. 878, 78 Vt. 479. 107 COMMENT ON PKOBATIVE EFFECT OF EVIDENCE §58 cess of reasoning on the facts is erroneous, as invading their province.' that he has the instinct and ability to go out of the way of danger, un- less his freedom of action is Inter- fered with, and that the diligence which an engineer owes to the owner of a dog is the same as that which he owes to a man walking upon or near the track apparently in possession of his faculties, and that the engineer would be warranted in acting upon the belief that the dog would be aware of the approaching danger and get out of the way in time to avoid injury. St. Louis, I. M. & S. Ry. Co. V. Rhoden, 123 S. W. 798, 93 Ark. 29, 20 Ann. Cas. 915, 137 Am. St. Rep. 73. A charge that if a railroad is running its train very fast, and a person on a street in a safe place knows that fact, and suddenly and negligently crosses in front of the train, and this, con- curring with the rapidly moving train, is the proximate cause of the Injury, there can be no recovery. Turbyfill v. Atlanta & C. Air Line Ry. Co., 65 S. B. 278, 83 S. O. 325. An instruc- tion that, if plaintiff's animal was killed by a train, then the presump- tion that the injury was the result of defendant's negligence arises, and tends to contradict the testimony of employes that proper lookout was kept. Mahor v. Kansas City South- em By. Co. (Ark.) 223 S. W. 388. An instruction that the charging of goods sold to another against the person who told the merchant to so charge them is a strong circumstance show- ing the undertaking of such person to be merely a collateral promise and void under the statute of frauds. Clark V. Smith, 87 111. App. 409. An instruction which stated that the existence of influence must generally be gathered from circumstances, such as whether testatrix formerly intend- ed a different disposition of her property, whether she was surround- ed by those who had an object to ac- complish, whether she was of weak mind subject to influence, and wheth- er the proposed will was such as would be urged by the persons sur- rounding her. In re Kendrick's Es- tate, 62 P. 605, 130 Cal. 360. Instructions erroneous as direct- ing that certain facts do not -nrar- rant certain inferences, A charge that, if the south line of the P. county school land can be identified on the ground, it will not be presumed, in the absence of evidence, that the sur- veyor who located the A county school land was ignorant of such line, nor that he intended his lines to con- flict with the lines of the P. county school land. Clay County Land & Cattle Co. V. Montague County, 8 Tex. Civ. App. 575, 28 S. W. 704. In an action against connecting carriers for injuries to cattle, a charge that there was no evidence warranting a finding that the cattle were roughly handled by the first carrier, where there was evidence from which that fact might have been inferred, was a charge upon the weight of testimony. Hous- ton & T. C. R. Co. V. Hawkins & Nance (Tex. Civ. App.) 167 S. W. 190. An instruction that the invitation of a conductor, when nearing a station, to the passenger, to "get ready to get off," was too remote a cause of an injury received from alighting from the moving train at a station. Cooper V. Georgia, C. & N. Ry. Co., 39 S. B. 543, 61 S. 0. 345. A charge, in an action for injury to a passenger in a street car, alleged to be due to neg- ligence in colliding with a water cart, to the effect that the company was not an insurer of the safety of its passengers, and the mere fact that the car collided with the wagon did not in itself establish liability against defendant. Houston Electric Co. v. Nelson, 77 S. W. 978, 34 Tex. av. App. 72. An instruction, in an action by a passenger against a street rail- road company for personal injuries alleged to be due to defendant's neg- ligence, in which it was conceded that plaintiff was not at fault, and in which there was substantial evidence, though conflicting, to show that the injury was incurred through the negligence of a motorman, that, under the case and proofs, no presumption of negli- gence arose against defendant from the mere fact that an accident had oc- curred. Sullivan v. Market St. Ey. Co., 69 P. 143, 136 Cal. 479. An in- 24 Brown v. State, 23 Tex. 195. §58 INSTRUCTIONS TO JURIES 108 As a rule, the fact that the conclusions of the jury from the evidence struction that the mere fact that a deed was carried and placed In bank by parties would not of itself be evi- dence, whether it was placed in es- crow or delivered to grantees. Gray- son V. Damme, 158 P. 387, 59 Okl. 214. An instructi6n, in an action by an employ^ for personal injuries, that he must prove negligence in the defend- ant, and that proof of the accident and injury alone will not spfflce. Smith v. Gulf, W. T. & P. Ry. Co. (Tex. Civ. App.) 65 S. W. 83. Instruc- tions, in an action against a railway company for injuries to a fireman, that the mere fact an injury occurs is not of itself proof of negligence, and that the mere fact that the fire- man was injured by the giving way of the shaker bar attachment is no proof of negligence. Missouri, K. & T. Ry. Co. of Texas v. Lynch, 90 S. W. 511, 40 Tex. Civ. App. 543. An instruction, in freight conductor's ac- tion for injuries, that, if plaintiff stumbled over a stake In the yards while at work, that alone would not warrant affirmative answer to a spe- cial interrogatory. Galveston, H. Sc S. A. Ry. Co. V. Miller (Tex. Civ. App.) 192 S. W. 593. An instruction that the fact that a member of the firm sued was not called to prove that certain defendants were not partners would not authorize the jury to infer that they were partners. Wallis v. Wood (Tex. Sup.) 7 S. W. 852. An instruction that a railroad company- is presumed to keep its bridges in proper condition, and to make the necessary repairs before they are dangerous, and the fact that repairs are made Is not evidence that they were not previously In good condition. Missouri, K. & T. Ry. Co. of Texas v. Parker, 49 S. W. 717, 20 Tex. Civ. App. 470; Id., 50 S. W. 606, 20 Tex. Civ. App. 470. A charge that as the engineer had testified that the engine was properly equipped and handled, no Inference could be drawn from proof that the goods were burned by fire from the engine, but that the bur- den was thereby thrown on plaintiff to prove negligence on defendant's part. Missouri Pac. Ry. Co. v. Bart- lett, 81 Tex. 42, 16 S. W. 638. An instruction which, as a matter of law, advises a jury that the placing of cinders alongside of a track and on it would not indicate to a person of or- dinary intelligence that tiie track had been made solid, so that it would not sink. Louisville & N. R. Co. v. Kemper, 53 N. B. 931, 153 Ind. 618. A charge, where a will when received from an express company was found to have been mutilated, that the evidence that the package containing the will was abstracted from the company's safe in the evening, and restored the next morning, after having been opened and resealed, did not prove that the will was mutilated by the person so abstracting or returning it. Webster V. Yorty, 62 N. B. 907, 194 111. 408. A charge, on the Issue of undue influ- ence in the execution of a will, that there is no evidence authorizing the finding that fraud and deceit were practiced, or that any of the bene- ficiaries used coercion, there being evidence to show the existence of con- fidential relations and activity in the preparation and execution of the will. Coghill V. Kennedy, 24 So. 459, 119 Ala. 641. 2 2 Ala. Basterling v. State, 30 Ala. 46. Ariz. Barrow v. Territory, 114 P. 975, 13 Ariz. 302. Cal. People v. Carrillo, 54 Cal. 63. Colo. Horton v. People, 107 P. 257, 47 Colo. 252; na. Curlngton v. State, 86 So. 344; Gunn v. State, 83 So. 511, 78 Bla. 599. Ind. Allison v. State, 42 Ind. 354. Ky. Tines v. Commonwealth, 77 S. W. 363, 25 Ky. Law Rep. 1233. Mo. State v. Stewart, 212 S. W. 853, 278 Mo. 177; State v. Stanley, 100 S. W. 678, 123 Mo. App. 294. Neb. Williams v. State, 46 Neb. 704, 65 N. W. 783. Tex. Owens v. State, 46 S. W. 240," S9 Tex. Cr. R. 391; Brann v. State (Cr. App.) 39 S. W. 940 ; Williams v. State, 11 Tex. App. 275 ; Hull v. State, 7 Tex. App. 593. Illustrations of instructions held erroneous ivitUn rule. An in- struction in a prosecution for embez- 109 COMMENT ON PROBATIVE EFFECT OF EVIDENCE §58 in a criminal case differ from those of the accused or the state does not affect its power to make them.^° zlement, that the mere failure on the part of defendant, without explana- tion, to turn over to his employer the funds in his hands belonging to it, es- tablished guilt. Hampton v. State, 54 So. 722, 99 Miss. 176. An instruction that mere uttering of a forgery is a cir- cumstance from which kno'SYledge of the falsity may be presumed, that the jury could presume that accused knew that a deed passed by him was forged, if it was forged, but that he could contradict or explain away the pre- sumption, etc. State v. Hatfield, 118 P. 735, 65 Wash. 550, Ann. Cas. 1913B, 895. An instruction that the mere ut- tering of a forged instrument is a cir- cumstance from which knowledge of its falsity may be presumed, and that, if the jury found that a mortgage was forged, and that it was uttered by the defendant, a rebuttable presump- tion arose that the accused knew of its character at the time of passing it, etc. State v. Peeples, 118 P. 906, 65 Wash. 673. An instruction that if ac- cused had possession of a forged check and obtained money upon it his pos- session raised a presumption of guilt, unless rebutted. State v. McBride, 130 P. 486, 72 Wash. 390. A charge re- quested by defendants that certain language of one of them to the other would not justify a finding that the speaker intended the other to assail or kill deceased. Wilkinson v. State, 106 Ala. 23, 17 So. 458. A charge, in a prosecution for assault to murder, that, "if there was a sufficient provo- cation to excite sudden passion, then the presumption is that passion dis- turbed the sway of reason, and made him regardless of his act." Wigerfall V. State, 82 So. 635, 17 Ala. App. 145. An instruction, on a prosecution for murder, in which it appeared that de- fendant was present when hounds were put on the trail of the murderer, to the effect that the only purpose for which the . jury should consider the fact that defendant was with the hounds, was a mere circumstance tending to show an absence of con- scious guilt. Shelton v. State, 42 So. 30, 144 Ala. 106. An instruction, on a trial for homicide committed by the son of accused, that no presumption was to be indulged in against accused because he was present at the place of the killing and had an altercation with decedent just prior thereto. Morris v. State, 41 So. 274, 146 Ala. 66. A charge that the fact that a human body was buried beneath the body of a mule would justify a find- ing that a murder had been commit- ted, and that those who undertook to conceal the body were criminally con- cerned with the murder. Sutherlin v. State, 48 N. E. 246, 148 Ind. 695. An instruction, in a prosecution for homi- cide, in which the deceased's clothing was exhibited to the jury, that the jury cannot draw any conclusion from their inspection of the pockets of the deceased that the defendant commit- ted any robbery on the deceased, or that he at any time placed his hand or fingers in such pockets notwith- standing they may have been turned, and blood-stains may have existed in the shape of fingermarks. Story v. State, 99 Ind. 413. A charge, in a murder case, that defendant did not provoke or bring on the difficulty, and that, if deceased turned towards him and put his right hand in his hip pocket so as to indicate to a reason- able man his purpose to draw a weap- on and use it, defendant was author- ized to anticipate him and shoot first. Crumpton v. State, 52 So. 605, 167 Ala. 4. An instruction that if, when the defendant's possession of the ani'!- mals was questioned, he stated where he got them "and if such statement is reasonably and probably true, then, unless the state has shown such ex- planation of possession to be false, you will acquit the defendant." Jor- dan V. State, 104 S. W. 900, 51 Tex. Cr. K. 646. Prima facie indication, of guilt. In Iowa an instruction that a certain fact if found by the jury, will be a "prima facie indication" of guilt, lias been sustained ; the court saying that 20 Brunaugh v. State, 90 N. E. 1019, 173 Ind. 483. 58 INSTEUCTIONS TO JURIES 110 Under the above rule it is error to instruct and proper to refuse to instruct as to the strength or weakness of a presumption of fact,^' or as to the amount of proof required to overcome a rebuttable pre- sumption.^' § 59. Limitations of rule In some jurisdictions it is not error to instruct that the jury should consider certain facts, inferences from which are likely to be drawn to the prejudice of one party or the advantage of another,^ ^ and while in a few jurisdictions it is an invasion of the province of the jury to instruct that they may draw certain inferences of fact from the evi- the quoted phrase does not mean pre- sumptive evidence of guilt, but merely that, at first view, the circumstances, whose effect is being considered, sug- gest guilt. State v. Richards, 102 N. W. 439, 126 Iowa, 4:97. Where a wit- ness who had testified for accused on a former trial testified on retrial that he and another witness had been bribed by accused to so testify, and that the testimony was false, an in- struction that if the jurors believed that defendant, after being charged with the commission of the larceny in question and before the former trial, knowingly induced certain witnesses to testify falsely concerning any ma- terial facts in the case, such conduct would be a circumstance to be consid- ered with all the other facts and cir- cumstances in determining the defend- ant's guilt or innocence, and such fact, if found, was a circumstance which prima facie indicated guilt, and should receive such consideration and weight as the jury deemed it entitled to, was proper. State v. Kimes, 132 N. W. 180, 152 Iowa, 240. 26 Cal. People v. Cline, 74 Cal. 575, 16 P. 391. Colo. Van Straaten v. People, 56 P. 905, 26 Colo. 184. 111. Lelserowitz v. Fogarty, 135 111. App. 609. Kan. State v. Jewell, 127 P. 608, 88 Kan. 130. Midi. Wilcox v. Young, 66 Mich. 687, 33 N. W. 765. Utah. Schuyler v. Southern Pac. Co., 109 P. 458, 37 Utah, 581, rehear- ing denied 109 P. 1025, 37 Utah, 612. Wash. State v. Bliss, 68 P. 87, 27 Wash. 463. Wis. Baker v. State, 80 Wis. 416, 50 N. W. 518. 2 7 Vlckers v. Hawkins, 58 S. E. 44, 128 Ga. 794. 2 8 State V. Witten, 100 Mo. 525, 13 S. W. 871. Contradictory statements. It is not error to refer to the consideration of the jury the ajleged untrue or con- tradictory statements of an accused criminal, in relation to his connection with the offense charged against him, as matters from vrtiich a presumption of guilt might be inferred. Cathcart V. Commonwealth, 37 Pa. 108. lu Texas, however, it has been held that an instruction, in a civil action for rape, that, if plaintiff was silent as to the matter after the alleged assault, this was a circumstance which should be considered by the jury, is errone- ous as on the weight of evidence. Munk V. Stanfleld (Civ. App.) 100 S. W. 213. And for the same reason a diarge that the mere silence of accused at the time of being arrest- ed should not be considered as a circumstance against him was proper- ly refused. Clark v. State (Tex. Cr. App.) 59 S. W. 887. In Missouri it has been held, seem- ingly in conflict with the text case, that in a criminal case it is error to instruct the jury that defendant's at- tempts to escape from custody and to procure false testimony are, if proved, circumstances to be considered in de- termining his guilt or innocence. State V. Sivils, 105 Mo. 530, 16 S. W. 880. Ill COMMENT ON PROBATIVE EFFECT OF EVIDENCE 60 dence,^* it being considered that to say to the jury that they will be authorized to find a fact because of the existence of another fact is equivalent to sFating that the existence of the latter raises the reason- able presumption of the existence of the former/" the weight of au- thority supports such an instruction as one. not on the weight of the evidence.^^ In some jurisdictions such an instruction is proper, if the testimony as to the facts from which inferences are sought to be de- duced is Undisputed,*'' and but a single inference can be drawn there- from.** An instruction that certain inferences may be drawn by the jury from the testimony of a witness, which merely states such testi- mony in another form, is not objectionable, although such an instruc- tion cannot be of much value.** § 60. Specific applications of rule The above rule has been applied, in civil cases, to inferences of or concerning willfulness,*® or malice,*' or fraud,*^ or adultery,** or tes- tamentary capacity,* ° or that a railroad pass was issued without con- sideration,*" or to inferences of negligence from the derailment of a train,*! q^ of knowledge of a train schedule,** or of knowledge of a 2 9 Smith V. Jackson, 202 S. W. 227, 133 Ark. 334 ; Union Seed & Fertilizer Co. V. St. Louis, I. M. & S. Ry. Co., 181 S. W. 898, 121 Ark. 585; Standard Cotton Mills V. Cheatham, 54 S. E. 650, 125 Ga. 649; Snowden v. Water- man, 31 S. B. UO, 105 Ga. 384. Contra, Mangham v. State, 75 S. E. 512, 11 Ga. App. 427; Radford v. State, 67 S. E. 70T, 7 Ga. App. 600. 30 stone T. Geyser, etc., Min. Co., 52 Cal. 315. 31 Colo. Newby v. People, 62 P. 1035, 28 Colo. 16. Ind. Johnson v. Brady (Ind. App.) 126 N. E. 250; Vandalia Coal Co. v. Moore, 121 N. E. 685, 69 Ind. App. 311 ; Talge Mahogany Co. v. Hockett, 103 N. E. 815, 55 Ind. App. 308. Md. Newman v. McComas, 43 Md. 70. Mass. Commonwealth v. Walsh, 162 Mass. 242, 38 N. E. 436. , Vt. Carrigan v. Hull, 5 Vt. 22. It is tbe province of the court to Instruct the jury as to what inferences of fact they would be warranted in drawing from the evidence and facts proved; and, if the court, should not err as to the kind and extent of such inferences, exception could not bo sus- tained, even though the matter should be so plain as to render it needless to say anything about it to the jury. Brewin v. Farrell's Estate, 39 Vt. 206. 32 Lynn v. Thomson, 17 S. C. 129. 3 3 Bluedorn v. Missouri Pac. Ry. Co. (Mo.) 24 S. W. 57. 3* Holmes v. Cook, 50 Wis. 172, 6 N. W. 507. 3 5 Gwynn v. Citizens' Telephone Co., 48 S. E. 460, 69 S. C. 434, 67 L. R. A. Ill, 104 Am. St. Rep. 819. 36 L. B. Price Mercantile Co. v. Cuil- la, 141 S. W. 194, 100 Ark. 316 ; Clif- ford V. Lee (Tex. Civ. App.) 23 S. W. 843. 3 7 Heckelman v. Rupp, 85 Ind. 286; Warfield v. Clark, 91 N. W. 833, 118 Iowa, 69; Freiberg v. Freiberg, 74 Tex. 122, 11 S. W. 1123 ; Ross v. W. D. Cleveland & Sons (Tex. Civ. App.) 133 S. W. 315. 38 Stanley v. Montgomery, 102 Ind. 102, 26 N. E. 213. 89 McBride v. Sullivan, 45 So. 902, 155 Ala. 166. *o Nickles v. Seaboard Air Line Ry., 54 S. B. 255, 74 S. C. 102. 41 Abilene & S. Ry. Co. v. Burleson (Tex. Civ. App.) 157 S. W. 1177 ; Da- vis V. Galveston, H. & S. A. Ry. Co., 93 S. W. 222, 42 Tex. Civ. App. 55; 42 Western Union Telegraph Co. v. Taylor (Tex. Civ. App.) 167 S. W. 289. 60 INSTRUCTIONS TO JURIES 112 town officer of defects in a highway,** or of authority of agent,** or of payment,*^ or that an officer having custody of a person will protect him in his lawful rights,*® or a presumption in favor of the proceedings of an administrator,*' or .to an instruction that certain acts did not raise a presumption of dedication,** or to inferences from failure to call a witness having knowledge concerning facts in dispute.*® It is error to instruct, and proper to refuse to instruct, that the pres- ence of certain circumstances will make it incumbent upon one to exer- cise more care than if such circumstances were absent,^'' or that great- er care is required to be exercised under given circumstances than un- der others.^^ In criminal cases such rule has been applied to inferences of or concerning intent, or malice,®* or identity,®* or inferences arising from the failure to call witnesses or to cross-examine them,"* or from niaking contradictory statements," ° or from failure to prove an alibi."' In a criminal case it is proper to refuse an instruction that if the evidence is susceptible of two constructions, one of which is Houston E. & "W. T. Ry. Co. v. Rich- ards, 49 S. W. 687, 20 Tex. Civ. App. 203. *8 Bredlau v. TOwn of York, ,92 N. W. 261, 115 Wis. 554. ** Gulfport Fertilizer Co. v. Jones, 73 So. 145, 15 Ala. App. 280. *6 Cole v. Waters, 147 S. W. 552, 164 Mo. App. 567. *» Southwestern Portland Cement Co. V. Reitzer (Tex. Civ. App.) 135 S. W. 237. ■4 7 Doolittle V. Holton, 26 Vt. 588. 48 Earle v. Poat, 41 S. B. 525, 63 S. C. 439. *9 Edwards v. St. Louis & S. F. R. Co., 149 S. W. 321, 166 Mo. App. 428. BO Waggoner v. Missouri, K. & T. Ry. Co. (Tex. Civ. App.) 92 S. W. 1028 ; Ryan v. Union Pac. R. Co., 151 P. 71, 46 Utah, 530. 51 Texas & P. Ry. Co. v. Durrett, 63 S. W. 904, 26 Tex. Civ. App. 268; Meadows v. Truesdell (Tex. Civ. App.) 56 S. W. 932; Citizens' Hy. Co. v. Holmes, 46 S. W. 116, 19 Tex. Civ. App. 266; Galveston, H. & S. A. Ry. Co. V. Eaten (Tex. Civ. App.) 44 S. W. 562; St. Louis, A. & T. Ry. Co. v. Burns, 71 Tex. 479, 9 S. W. 467. ■ In an action for injuries to one run do-am. by a street car, an in- struction that greater care in operat- ing cars is required In populous cities and crowded streets than in sparsely settled districts and streets or high- ways upon which there are few trav- elers, is erroneous, as Invading the province of the jury. Indianapolis St. Ry. Co. V. Taylor, 72 N. E. 1045, 164 Ind. 155. 54 S. W. 629. In loiira, however, it is not error to charge that the party alleging a material fact in issue must prove it, though there is no conflict of testi- mony about it. Blotcky v. Caplan, 91 Iowa, 352, 59 N. W. 204. 1* Green v. State, 30 So. 656, 43 Fla. 556; State v. Austin, 80 N. W. 803, 109 Iowa, 118 ; State v. Cannon, 27 S. B. 526, 49 S. C. 550. IB Ryan v. Pall River Iron Works Co., 86 N. E. 310, 200 Mass. 188. 123 COMMENT ON PEOBATIVE EFFECT OF EVIDENCE § 71 witnesses concur in the statement that the defendant's general character as a peaceable, law-abiding citizen is good, does not make it proper for the court to charge that the defendant has proved a good character, since such testimony only expresses the opinion of the witnesses,^^ and in one jurisdiction it is held to be, error to tell the jury that there is no dispute in the testimony on a certain point, or that anything is con- •clusively proved. This, however, is under a constitutional provision considered to be more restrictive than the constitutional provisions of any other state.^' § 70. Stating legal effect of undisputed facts A charge upon the legal effect of admitted or uncontroverted facts is not one upon the weight of the evidence ; ^' but, where the undisputed facts cannot properly be considered, disconnected from other testimony l)earing on the same point, an instruction stating what such facts show should be refused.^® X. Affirming Exis*rBNCE or Nonexistence of Evidence or Tendencies Thereof § 71. Failure or absence of proof JSTecessity of instructions, see post, § 280. It is error, as invading the province of the jury, to instruct that there is ho evidence of a given fact,^° where there is evidence, however slight, 16 Reld V. State, 61 So. 324, 181 determine the powers and limitations Ala. 14. of the agent. Smith v. Mutual Cash 17 Bardwell v. Ziegler, 3 Wash. 34, Guaranty Fire Ins. Co„ 113 N. W. 28 P. 360. 94, 21 S. D. 438. 18 IT. S. (C. C. A. Minn.) North- lo Morris v. Osterhout, 55 Mich, western Fuel Co. v. Danielson, 57 F. 262, 21 N. W. 339. 915, 6 C. C. A. 636. - 2» Ala. Wheat v. Union Springs Ala. Riley v. Fletcher, 64 So. 85, Guano Co., 70 So. 631, 195 Ala. App. lore Ala 570 180; Woodmen of the World v. «• a^^f^^i,,,,.. „ Tj-„n«T,o 11B <5 Wright, 60 So. 1006, 7 Ala. App. 255; w 1M 1S?M^1™ 3^r SmZck National Chemical' Co. v. National > t>. L ?• M^^'ArT 'oi^ Aniline & Chemical Co., 57 So. 114, 3 T. Gerkhardt, 1 Mo App. 333. ^j^ ^^^ ^g^. ^^^.^^ '^ ^ ^ ^^' ^ Neb. Whelan V. Union Pac. R. C!o., Barber, 56 So. 858, 2 Ala. App. 507; 136 N. W. 20, 91 Neb. 238. Crenshkw v. State, 45 So. 631, 153 S. D. Wright v. Lee, 72 N. W. 895, Ala. 5; Parham v. State, 42 So. 1, 10 S. D. 263. 147 Ala. 57. Determination of powers of an Ind. Van Camp Hardware & Iron agent. Where the undisputed evi- Co. v. O'Brien, 62 N. E. 464, 28 Ind. dence shows that a fire policy was is- App. 152. sued by insurer on an application au- Okl. Smith v. Gillis, 151 P. 869, thoritatively taken, it is the duty of 51 Okl. 134. the court in its charge to recognize R. I. Perry v. Sheldon, 75 A. 690, ihe existence of the agency and to 30 R. I. 426. §71 INSTEUCTIONS TO JURIES 124 tending to prove such fact ; ^^ but, where there is no legal evidence of the existence of certain facts, or there is a total lack of evidence to sustain the necessary allegations of fact in a pleading, the court may," and In some jurisdictions should,** on request, so instruct. Such a charge is not within a statutory, provision forbidding the court to give instructions on the efiect of the evidence except upon request.^* 21 Ala. James v. State, 72 So. 299, 14 Ala. App. 652; Western Union Telegraph Go. v. Northcutt, 48 So. 553, 158 Ala. 539, 132 Am. St. Rep. 38; Way v. State, 46 So. 273, 155 Ala. 52; Southern Coal & Coke Co. V. Swinney, 42 So. 808, 149 Ala. 405 ; Garth v. North Alabama Traction Co., 42 So. 627, 148 Ala. 96. Cal. Thompson v. Southern Pac. Co., 161 P. 21, 31 Cal. App. 567. 111. Morton v. Gateley, 1 Scam. 211; Comleld-Kunert Co. v. Volk- mann, 138 111. App. 421. Mo. Sills V. Burge, 124 S. W. 605, 141 Mo. App. 148; Houghtaling v. Ball, 19 Mo. 84, 59 Am. Dec. 331. Neb. Sheibley v. Nelson, 121 N. W. 458, 84 Neb. 393. N. O. State V. Allen, 48 N. C. 257; Wells V. Clements, 48 N. C. 168. Pa. Shoninger v. Latimer, 165 Pa. 373, 30 A. 985. S. C. Howard v. WofCord, 16 S. C. 148. Tex. International & 6. N. R. Co. V. McVey (Civ. App.) 81 S. W. 991, rehearing denied (Civ. App.) 83 S. W. 34, and reversed 87 S. W. 328, 99 Tex. 28 Vt, Rogers V. Judd, 6 Vt. 191. 22 U. S. (Sup.) Parks v. Ross, 11 How. 362, 13 L. Ed. 730 ; (C. C. A. Cal.) Connecticut Mut. Life Ins. Co. v. Mc- Whirter, 73 F. 444, 19 C. C. A. 519. ■ Ala. EdmondsOn v. Anniston City Land Co., 29 So. 596, 128 Ala. 589. Cal. People V. Perry, 65 Cal. 568, 4 P. 572 ; People v. Vasquez, 49 Cal. 560; People v. Welch, 49 Cal. 174; People v. Dick, 34 Cal. 663 ; People v. ' King, 27 Cal. 507, 87 Am. Dee. 95. Fla. Carr v. State, 34 So. 892, 45 Fla. 11. Ga. Underwood v. American Mort- gage Co., 97 Ga. 238, 24 S. E. 847; East Tennessee, V. & G. Ry. Co. v. Markens, 88 Ga. 60, 13 S. B. 855, 14 L. R. A. 281. 111. Scott V. Parlin & Orendortt" Co., 92 N. E. 318, 245 111. 460, affirm- ing judgment 146 111. App. 92. Ind. Beckner v. Riverside & B. G. Turnpike Co., 65 Ind. 468; Kline V. Spahr, 56 Ind. 296. Kan. Case v. Hannahs, 2 Kan. 490. Me. Rogers v. Percy, 12 Atl. 545. Md. Webb V. MeCloskey, 68 Md. 196, 11 A. 715; Sheppard v. Willis, 28 Md. 631; Farmers' Bank v. Du- vall, 7 Gill & J. 78. Mass. Farnum v. Pitcher, 151 Mass 470, 24 N. E. 590; Carter v. GofC, 141 Mass. 123, 5 N. E. 471. Mo. State v. Hottman, 94 S. W. 237, 196 Mo. 110. Neb. Graham v. Hartnett, 10 Neb. 517, 7 N. W. 280. N. C. Newsome v. Western Union Telegraph Co., 56 S. E. 863, 144 N. C. 178; Woodbury v. Evans, 30 S. E. 2, 122 N. C. 779; State v. Byrd, 28 S. E. 353, 121 N. C. 684; Hinson V. King, 50 N. C. 393. Or. Latshaw v. Territory, 1 Or. 140. S. O. Trapp v. Western Union Telegraph Co., 75 S. B. 210, 92 S. C. 2J4; Bryce v. Cayce, 40 S. E. 948, 62 S. C. 546. Tenn. Slattery v. Lea, 11 Lea, 9. Tex. Burrell v. State, 18 Tex. 713. Va. Norfolk Southern R. Co. v. Norfolk Truckers' Exchange, 88 S. E. 318, 118 Va. 650. Wasb. State v. McPhail, 81 P. 683, 39 Wash. 199. 28 Davis V. Davis, 7 Har. & J. (Md.) 36; Alexander v. Harrison, 38 Mo. 258, 90 Am. Dec. 431; Humphrey v. Morgan, 120 P. 577, 30 Okl. 343. 24 Cole Motor Oar Co. v. Tebault, 72 So. 21,' 196 Ala. 382; Thomas v. State, 43 So. 371, 150 Ala. 31; Hug- gins V. Southern Ry. Co., 41 So. 856, 148 Ala. 153. 125 COMMENT ON PROBATIVE EFFECT OF EVIDENCE §72 § 72. Declaring tendency of evidence By the weight of authority, it is not an improper comment on the weight of the evidence, and does not trench upon the province of the jury, for the court to state the tendencies of the evidence, or, if such is the case, that there is some evidence tending to prove certain facts,^^ the tendency of the evidence being regarded as a question of law.^° In some jurisdictions such an instruction should also advise the jury that they are the exclusive judges of the facts and the credibility of the witnesses, ^^ or that it is for them to judge of the credibility of the testimony whose tendency is thus indicated.^' 2Btr. S. (Sup.) WUliams v. Con- ger, 125 U. S. 397, 8 S. Ct. 933, 31 L. Ed. 778. Ala. Graves v. State, 52 So. 34, 166 Ala. 671; Grain v. State, 52 So. 31, 166 Ala. 1. Ark. Walker v. State, 212 S. W. 319, 138 Ark. 517; Hogue v. State, 124 S. W. 783, 130 S. W. 167, 93 Ark. 316. Cal. People v. Flannelly, 60 P. 670, 128 Cal. 83; People v. Cum- mings, 113 Cal. 88, 45 P. 18'4 ; Morris T. Lochman, 68 Cal. 109, 8 P. 799. Ind. White V. State, 54 N. B. 763, 153 Ind. 689 ; Huffman v. Cauble, 86 Ind. 591 ; Pittsburgti, C. & St L. Ey. Co. V. Sponier, 85 Ind. 165; Helms V. Wayne Agricultural Co., 73 Ind. 325, 38 Am. Rep. 147; Ball v. Cox, 7 Ind. 453. Mass. Carmody v. Boston Gas- light Co., 162 Mass. 539, 39 N. E. 184. Mich. Campau v. Langley, 39 Mich. 451, 33 Am. Bep. 414. Minn. State v. Minneapolis Milk Co., 144 N. W. 417, 124 Minn. 34, 51 L. R. A. (N. S.) 244; State v. Rose, 47 Minn. 47, 49 N. W. 404; State v. Taunt, 16 Minn. 109 (Gil. 99). Miss. Garnett v. Kirkman, 33 Miss. 389. Nev. State v. Loveless, 30 P. 1080, 17 Nev. 424; State v. Watkins, 11 Nev. 30. N. Y. People v. Walker, 88 N. Y. S. 372, 85 App. Div. 556, judgment af- firmed 70 N. E. 1105, 178 N. Y. 563. N. C. Lewis V. Norfolk & W. Ry. Co., 43 S. E. 919, 132 N. C. 382. <>r. Smitson v. Southern Pac. Co., 60 P. 907, 37 Or. 74 ; Coos Bay, R. & E. R. & Nav. Co. v. Siglin, 53 P. 504, 34 Or. 80. S. O. Wingo V. New York Life Ins. Co., 101 S. E. 653. Va. Miehle v. Cochran, 25 S. E. 884, 93 Va. 641. 'Wasb. Farraris v. S. E. Slade Lumber Co., 152 P. 680, 88 Wash. 106. Wis. Spick V. State, 121 N. W. 664, 140 Wis. 104. Under a statute prohibiting the court from presenting the facts of the case to the jury, an instruc- tion, in a murder case, that there is evidence "to the effect" or "tending to show" a certain fact, and instruct- ing the jury that, if they find it to be a fact, to consider it in determining the degree of the defendant's guilt, is not erroneous as being a presentation of facts. State v. Brown, 28 Or. 147, 41 P. 1042. Instructions not proper xritbin mle. A statement that "the evi- dence on the part of the state goes to show that this defendant fired all three of those shots" goes beyond the rule that the judge may state tend- ency of evidence on both sides, and invades the province of the jury. An- drews V. State, 48 So. 858, 159 Ala. 14. In Oregon such an instruction has been mildly criticized, the court stat- ing that, while the use of the word "tendipg," to a jury of men skilled in the law, would be unexceptionable, its use with the ordinary jury is likely to mislead. State v. Rader, 124 P. 195, 62 Or. 37. 2 8 Druse v. Wheeler, 26 Mich. 189; Berry v. State, 31 Ohio St. 219, 27 Am. Rep. 506. 27 State V. Rose, 47 Minn. 47, 49 N. W. 404. 2 8 Davis V. Gerber, 69 Mich. 246, 37 N. W. 28i. § 72 INSTRUCTIONS TO JURIES 126 In some jurisdictions the power of the court to give such an in- struction is made to depend upon whether there is any evidence con- ti^overting the evidence tending to prove the specified facts. In Iowa, in the absence of any conflicting evidence, such an instruction is up- held,^" while in Oklahoma, if there is evidence both affirming and denying the existence of certain facts in issue, it is error to instruct that the evidence tends to prove such facts.^° In two jurisdictions an in- struction stating the tendency of the evidence to show certain facts seems to be unqualifiedly condemned as on the weight of the evidence.'^ § 73. Declaring that there is some evidence of particular facts In accordance with the general rule above stated, it is within the prov- ince of the court to instruct that there is some evidence of certain facts for the consideration of the jury,*'' and in a criminal case the court may in some jurisdictions in a proper case instruct that there is suffi- cient evidence to sustain a conviction if the jury believe it,*^ or if it satisfies the jury beyond a reasonable doubt.'* 2 9 State v. Meshek, 16 N. W. 143, 82 Commonwealtli v. Mulrey, 170 «1 Iowa, 316. Mass. 103, 49 N. B. 91 ; People v. Min- so St. Louis & S. F. R. Co. v. WU- gey, 103 N. Y. S. 627, 118 App. Div. son, 124 P. 326, 32 Okl. 752. 652, judgment affirmed 82 N. E. 728, 31 Ga. Stephens v. State, 45 S. B. 190 N. Y. 61. 619, 118 Ga. 762 ; Chapman v. State, sz People v. Johnson, 104 Cal. 418, 34 S. E. 369, 109 Ga. 157. 38 P. 91. Tex. McCleary v. State, 122 S. W. »* People v. Spiegel, 143 N. Y. 107, 26,157 Tex. Cr. R. 139; Cavaness v. 38 N. B. 284, affirming 75 Hun, 161, State, 74 S. W. 908, 45 Tex. Cr. R. 26 N. Y. S. 1041. 209 ; Cortez v. State (Cr. App.) 74 S. In Texas, however, it has been held W. 907; Hollar v. State (Cr. App.) 73 that a court can never legitimately S. W. 961; Reese v. State (Cr. App.) instruct the jury that any evidence 70 S. W. 424 ; Reese v. State, 68 S. before them is sufficient to convict of "W. 283, 44 Tex. Cr. R. 34 ; Santee v. the crime charged. Lunsford v. State, State (Cr. App.) 37 S. W. 436. 9 Tex. App. 217. 127 ASSUMPTIONS AS TO EXISTENCE OF FACTS §74 CHAPTER IV ASSUMPTION, OF EXISTENCE OR NONEXISTENCE OP FACTS BY THE COURT Assumption of Pacts When They aee in Dispute. § 74. Statement of rule. 75. Limitations or' qualifioatlons of rule. 76. Specific applications of rule in civil cases. 77. Specific applications of rule in criminal cases. B. Facts Admitted, Not Conxboveetbd, ok Conclusively Established. 78. General rule. 79. Limitations of rule. 80. Specific applications of rule. C. Assumption of Nonexistence of Facts. 81. Where there is some evidence of particular facts. 82. Where no conflict in evidence. A. Assumption op Facts When Thsy are in Dispute § 74. Statement of rule In all jurisdictions, both in civil •• and in criminal cases,* the rule is that instructions which assume the existence of material facts in 1 U. S. Snyder v. Rosenbanm, 30 S. Ct. 73, 215 U. S. 261, 54 L. Ed. 186, af- firming judgment Snyder v. Stribling, 89 P. 222, 18 Okl. 168 ; (C. C. A. Ga.) Southern Ry. Co. v. Hopkins, 161 P. 266, 88 C. C. A. 312 ; (C. C. A. Mich.) Crosley v. Reynolds, 196 P. 640, 116 C. C. A. 314 ; (0. C. A. Neb.) Chicago, B. & Q. R. Co. V. Blunt, 206 P. 425, 124 C. C. A. 307; (C. C. A. Va.) Amer- ican Locomotive Co. v. Thornton, 259 F. 405, 170 C. C. 'A. 381. Ala. Marbury Lumber Co. v. La- ment, 53 So. 773, 169 Ala. 33 ; Garden V. Houston Bros., 50 So. 1030, 163 Ala. 300; Selma St. & S. Ry. Co. r. CampbeU, 48 So. 378, 158 Ala. 438. • Ark. Missouri Pac. B. Co. v. Car- ey, 212 S. W. 80, 138 Ark. 563 ; Solo- mon V. Robinson, 198 S. W. 109; St. Louis, I. M. & S. R. Co. v. Wirbel, 149 S. W. 92, 104 Ark. 236, Ann. Cas. 19140, 277; Maryland Casualty Co. V. Chew, 122 S. W. 642, 92 Ark. 276. Cal. Sterling v. Cole, 106 P. 602, 12 Cal. App. 93; Johnston v. Beadle, 91 P. 1011, 6 Cal. App. 251. Colo. King Solomon Tunnel & De- velopment Co. v. Mary Verna Mining Co., 127 P. 129, 22 Colo. App. 528. Conn. Kelley v. Town of Torring- ton, 68 A. 855, 80 Conn. 378. Del. Daniels v. State, 48 A. 196, 2 Pennewill, 586, 54 L. R. A. 286. Fla. Southern Pine Co. v. Powell, 37 So. 570, 48 Pla. 154 ; Florida Cent. & P. R. Co. V. Foxworth, 25 So. 338, 41 Pla. 1, 79 Am. St. Rep. 149. Ga. Central of Georgia Ry. Co. v. Woodall, 78 S. E. 781, 13 Ga. App. 50; Ozmore v. Coram, 65 S. E. 448, 133 Ga. 250; Augusta Ry. & Electric Co. v. Lyle, 60 S. B. 1075, 4 Ga. App. 113; Atlanta & B. A. L. Ry. v. McManus, 58 S. B. 258, 1 Ga. App. 302. lU. Flanagan v. Chicago City Ry. Co., 90 N. B. 688, 243 111. 456, affirm- ing judgment 145 111. App. 56 ; Moreen v. Devillez, 212 111. App. 208 ; Adams v. Elgin & Belvidere Electric Co., 204 111. App. 1; Levy V. Chicago Rys. Co., 167 111. App. 527 ; Forster, Waterbury 2 See note 2 on page 180. §74 INSTRUCTIONS TO JTJEIHS 128 dispute are erroneous, as invading the province of the Jury, and & Co. V. Peer, 120 111. App. 199; Turn- ei- V. Righter, 120 111. App. 131; Faulk- ner V. Birch, 120 111. App. 281; Illinois Cent. R. Co. v. Berry, 81 111. App. IT. Ind. Kuhn v. Bowman, 93 N. B. 455, 46 Ina. App. 677; Southern Ry. Co. V. Limhack, 85 N. E. 354, 172 Ind. 89 ; Sasse v. Rogers, 81 N. B. 590, 40 Ind. App. 197; Manion v. Lake Erie & W. Ry. Co., 80 N. E. 166, 40 Ind, App. 569. Iowa. First Nat. Bank of Shenan- doah V, Cook, 153 N. W. 169, 171 Iowa, 41 ; Snips V. Minneapolis & St. L. R. Co., 146 N. W. 468, 164 Iowa, 580; Heisler v. Heisler, 131 N. W. 676, 151 Iowa, 503; Jones v. De Moss, 130 N. W. 914, 151 Iowa, 112; NeviUe v. Chicago & N. W. Ry. Co., 79 Iowa, 232, 44 N. W. 367; Perigo v. Chicago, R. I. & P. R. Co., 55 Iowa, 320, 7 N. W. 627. Kan. Busalt v. Doidge, 136 P. 904, 91 Kan. 37. Ky. Log Mountain Coal Co. v. White Oak Coal Co., 174 S. W. 721, 163 Ky. 842; Baltimore & O. S. W. B. Co. V. Sheridan, 101 S. W. 928, 31 Ky. Law Rep. 109. la. State v. King, 64 So. 1007, 135 La. 117. Md. American Fidelity Co. of Montpeller, Vt., v. State, 109 A. 99, 135 Md. 326; City of Baltimore v. Ault, 94 A. 1044, 126 Md. 402; Crown Cork & Seal Co. V. O'Leary, 69 A. 1068, 108 Md. 463 ; Oram Fruit & Produce Co. of Baltimore City v. Northern Cent Ry. Co., 66 A. 436, 106 Md. 1, 124 Am. St. Rep. 462. Mass. Hannah v. Connecticut Riv- er R. Co., 154 Mass. 529, 28 N. B. 682. Mich. Rimmele v. Huebner, 157 N. W. 10, 190 Mich. 247; McQuillan v. Eckerson, 144 N. W. 510, 178 Mich. 281 ; RuthrufC v. Faust, 117 N. W. 902, 154 Mich. 409; Karrer v. City of De- troit, 106 N. W. 64, 142 Mich. 331. Minn. Larkin v. City of Minneap- olis, 127 N. W. 1129, 112 Minn. 311. Miss. Raid v. Taaoo & M. V. R. Co., 47 So. 670, 94 Miss. 639; Griffin V. Griffin, 46 So. 945, 93 Miss. 651; Coleman v. Adair, 23 So. 369, 75 Miss. 660. Mo. Blair t. Union Electric Light & Power Co., 213 S. W. 976, 201 Mo. App. 571; Oliver v. St. Louis-San Francisco Ry. Co. (App.) 211 S. W. 699 ; Hunt V. City of St. Ubuis, 211 S. W. 673, 278 Mo. 213 ; Pearson v. Chicago, M. & St. P. Ry. Co. (App.) 200 S. W. 441; Neeley v. Snyder (App.) 193 S. W. 610; Bryan v. United States In- candescent Lamp Co., 159 S. W. 754, 176 Mo. App. 716; Simon v. Metropoli- tan St. By. Co., 132 S. W. 250, 231 Mo. 65, 140 Am. St. Rep. 498; Wilson v. City of St. Joseph, 123 S. W. 504, 139 Mo. App. 557; Williamson v. Wabash R. Co., 122 S. W. 1113, 139 Mo. App. 481 ; Glaser v. Rothschild, 120 S. W. 1, 221 Mo. 180, 22 L. R. A. (N. S.) 1045, affirming judgment 80 S. W. 332, 106 Mo. App. 418; Morrell v. Lawrence, Idl S. W. 571, 203 Mo. 363. Mont. Stephens v. Elliott, 92 P. 45, 36 Mont. 92 ; Gallick v. Bordeaux, 78 P. 583, 31 Mont. 328. Neb. Willman v. Sandman, 162 N. W. 419, 101 Neb. 92 ; Herold v. Coates, 129 N. W. 998, 88 Neb. 487; Deitrlch V. Hutchinson, 20 Neb. 52, 29 N. W. 247. N. Y. Anderson v. Dyer, 176 N. T. S. 758; Milano v. Stuyvesant Auto Trading Co., 164 N. Y. S. 26 ; Knapp v. Niagara Junction Ry. Co., 158 N. Y. S. 640, 171 App. Div. 126. N. C. Third Nat. Bank of St. Lou- is V. Exum, 79 S. E. 498, 163 N. C. 199; Dixie Fire Ins. Co. v. American Bond- ing Co., 78 S. B. 430, 162 N. C. 384 ; Marcus v. C. D. Loane & Co., 45 S. E. 354, 133 N. C. 54. Ohio. Toledo Rys. & Light Co. v. Mayers, 112 N. B. 1014, 93 Ohio St. 304. Okl. Chicago, R. I. & P. Ry. Co. v. SUbbs, 87 P. 293, 17 Okl. 97. Or. West V. McDonald, 136 P. 650, 67 Or. 551. Pa. Whitehead v. Pittsburg Rys. Co., 79 A. 240, 230 Pa. 79. R. I. Taber v. New York, P. & B. E. Co., 67 A. 9, 28 R. I. 269. S. O. Pearson v. Piedmont & N. Ry. Co., 99 S. E. 811, 112 S. C. 220; Hiller V. Bank of Columbia, 79 S. E. 899, 96 S. C. 74 ; Lee v. Northwestern R. Co., 65 S. E. 1031, 84 S. C. 125. S. D. Whaley v. Vidal, 132 N. W. 129 ASSUMPTIONS AS TO EXISTENCE OF FACTS §74 such an instruction is properly refused.' The above rule has been 248, 27 S. D. 642 ; Richardson v. Dybe- dahl, 98 N. W. 164, 17 S. D. 629. Tenn. Ellis V. Spurgin, 48 Tenn. (1 Heisk.) 74. Tex. Anders v. California State Life Ins. Co. (Civ. App.) 214 S. W. 497; Texas & Pacific Coal Co. v. Sherbley (Oiv. App.) 212 S. W. 758; Southern Traction Co. v. Owens (Civ. App.) 198 S. W. 150; Texas & P. Ry. Co. v. Wooldridge & Hamby, 126 S. W. 603, 59 Tex. Civ. App. 384; St. Louis South- western Ry. Co. V. Patton, 118 S. W. 798, 55 Tex. Civ. App. 59 ; Chicago, B. I. & G. Ry. Co. V. Groner, 111 S. W. 667, 51 Tex. Civ. App. 65 ; Thompson V, Galveston, H. & S. A. Ry. Co., 106 S. W. 910, 48 Tex. Civ. App. 284 ; Dal- las Consol. Electric St. Ry. Co. v. Ely (Civ. App.) 91 S. W. 887. TTtali. Bills v. Salt Lake City, 109 P. 745, 37 Utah, 507; Davidson v. Utah Independent Telephone Co., 97 P. 124, 34 Utah, 249. Va. Cardozo v. Middle Atlantic Immigration Co., Inc., 82 S. E. 80, 116 Va.' 342. W. Va. Williams v. Schehl, 100 S. E. 280, 84 W. Va. 499; Cobb v. Dun- levle, 60 S. B. 384, 63 W. Va. 398. Wis. Northern Supply Co. v. Wan- sard, 100 N. W. 1066, 123 Wis. 1, 107 Am. St. Rep. 984; ClifCord v. Minneap- olis, St. P. & S. S. M. Ry. Co., 81 N. W. 143, 105 Wis. 618 ; Owen v. Long, 72 N. W. 364, 97 Wis. 78; GiUet v. Phelps, 12 Wis. 392. Illustrations of instructions im- proper TvitMn rnle. In an action for injuries to street passenger an in- struction that if plaintifE attempted to board a moving car he was guilty of contributory negligence was erroneous as importing some degree of negli- gence on defendant's part. Hanton v. Pacific Electric Ry. Co., 174 P. 61, 178 Cal. 616. In an action for the value of cotton destroyed by fire while on a station platform, where the Jury might have found that plaintifE put the cotton on the platform for his own convenience, and not to be held by defendant as warehouseman, an in- struction requiring plaintifE to estab- lish defendant's negligence would have been erroneous, as assuming that It iNST.To Juries— 9 held the cottoh as warehouseman ; negligence not otherwise being an es- sential element. St. Louis & S. F. Ry. Co. V. Black, 218 S. W. 377, 142 Ark. 41. In an action to recover for personal injuries sustained by a cattle shipper who had been invited to ride in one of defendant's trains, as the re- sult of being brushed ofE a cattle car when it passed under a bridge, an in- struction assuming that an engine is a safe place in which to ride is im- proper. Wall V. Chesapeake & O. Ry. Co., 210 111. App. 136. In passenger's action for injuries sustained in alight- ing from train, an instruction on duty of assistance, which assumed the fact in issue, that place where passenger alighted was dangerous, was errone- ous. Nashville, C. & St. L. Ry. Co. v. Newsome, 206 S. W. 33, 141 Tenn. 8. In a servant's action for injuries, a charge assuming decrease in the serv- ant's earning capacity as a proven fact from statement of a physician that plaintiff would always have a weak arm was erroneous, since the weakened condition of the arm need not necessarily decrease plaintifE's earning capacity. Texas & Pacific Goal Co. V. EEPvin (Tex. Civ. App.) 212 S. W. 234. Where suits of passenger in automobile and of the driver's ad- ministrator were tried together, re- quested instruction that, if either driver or passenger was guilty of neg- ligence contributing to the accident, and without which it would not have occurred, verdict should be for defend- ant in both cases, was erroneous, as assuming that the relation of the oc- cupants warranted imputing negli- gence of one of them to the other. Bobison V. Oregon-Washington R. & Nav. Co., 176 P. 594, 90 Or. 490. In action for injuries sustained by plain- tiff while driving across defendant's street car tracks at a crossing, an in- struction assuming that plaintiff, when near the track, was in a position of danger, was erroneous as invading the provinceof the jury. Terre Haute, I & E. Traction Co. v. EUsbury (Ind. App.) 123 N. E. 810. In an action for 3 See note 3 on page 135. §74 INSTEUCTIONS TO JURIES 130 frequently violated by instructions given or requested which, in death resulting from collision between a vehicle driven by deceased and de- fendant's automobile, it is error to in- " struct that, if the jury believe from the evidence that at time of the acci- dent deceased vs^as violating an ordi- nance regulating the manner in which vehicles shall proceed in turning cor- ners to the left, and that such viola- tion was negligence which proximate- ly contributed to the accident, then they should find for defendant, as thereby there is an assumption that violation of the ordinance was conclu- sive of the fact that deceased was neg- ligent, Instead of being, at the most, mere prima facie evidence thereof. Culver V. Harris, 211 111. App. 474. Instructions not objectionable under rule. An instruction, "If the jury find the issues for plaintiff, * * * you will * * * take in- to consideration mental and physical pain endured by her since said in- jury," etc., was not erroneous as as- suming that plaintiff was injured. Breen v. United Eys. Co. of St. Louis (Mo.) 204 S. W. 521. In personal in- jury action, an instruction, authoriz- ing damages in such reasonable sum as jury shall award plaintiff on ac- count of pain and anxiety she has suf- fered by reason of her Injuries, was not objectionable as assuming that plaintiff had in fact suffered pain and anxiety, though there was testimony that plaintiff was stolid and reticent concerning her injuries. Brinck v. Bradbury, 176 P. 690, 179 Cal. 376. Instruction "that the law does not jus- tify nor excuse parents in willfully and maliciously interfering with the domestic affairs of their married chil- dren" is not subject to objection that it is a direct assertion by the court that defendants Interfered in the do- mestic affairs of plaintiff and her hus- band. Wagner v. Wagner (Mo. App.) 215 S. W. 784. An instruction predi- cating verdict for plaintiff on a find- ing that the negligence, if any, in con- struction of a platform consisted in certain defects, was not erroneous as assuming as a fact the existence of those defects. Deming v. Alpine Ice Co. (Mo. App.) 214 S. W. 271. In wag- on driver's personal injury action against street railroad, instruction limiting consideration of reasonable care to the situation at the time of the accident, and not upon anything subsequently discovered, which could not with reasonable diligence have been discovered before accident, was not erroneous in assuming that wagon driver was not negligent, such instruc- tion not purporting to cover all mat- ters of law involving right of recovery; Indianapolis & Cincinnati Traction Co. V. Senour (Ind. App.) 122 N. B. 772. Instruction that motorman, op- erating street car at reasonable speed with due care, may assume that others on the street will exercise ordinary / care, and will see that which is plainly to be seen, was not objectionable, as assuming that the street car could be plainly seen. Busch v. Los Angeles By. Corporation, 174 P. 665, 178 Cal. 536, 2 A. L. R. 1607. In an action for injuries received in collision between vehicles on a street, an instruction, ex- pressly conditioned on the jury find- ing for the plaintiff under rules given, one of which was an instruction stat- ing that in order to enable plaintiff to recover she must establish by a fair preponderance of the evidence that she received some part of injuries'as alleged in complaint, does not assume the fact of plaintiff's injuries. Spick- elmeir v. Hartman (Ind. App.) 123 N. E. 232. ? V. S. Dolan v. United States (C. C. A. Alaska) 123 F. 52, 59 C. O. A. 176, reversing judgment on rehearing 116 F. 578, 54 O. C. A. 34. Ala. Pounds v. State, 73 So. 127, 15 Ala. App. 223; Bone v. State, 68 So. 702, 13 Ala. App. 5; Jones v. State, 68 So. 690, 13 Ala. App. 10 ; Rector v. State, 66 So. 857, 11 Ala. App. 333; Brooks V. State, 62 So. 569, 8 Ala. App. 277, judgment reversed 64 So. 295, 185 Ala. 1; Naftel v. State, 57 So. 386, 3 Ala. App. 34; Johnson v. State, 55 So. 321, 1' Ala. App. 102; Morris v. State, 41 So. 274, 146 Ala. 66; Wilson v. State, 37 So. 93, 140 Ala. 43 ; Hall v. State, 32 So. 750, 134 Ala. 90. 131 ASSUMPTIONS AS TO EXISTENCE OF FACTS referring to some or all of the evidentiary facts necessary Avlr IV/TafaTi w Cif-ofa 1 QQ Q \XT TOO* Tlnn^lr^ » TTTnllmi. n-f XT §74 to be Ark. Marsh v. State, 188 S. W. 815, 125 Ark. 282. Cal. People v. McPherson, 91 P. 1098, 6 Cal. App. 266 ; People v. Thom- son, 79 P. 435, 145 Cal. 717 ; People v. Matthai, 67 P. 694, 135 Cal. 442. Colo. Harris v. People, 135 P. 785, 55 Colo. 407. Conn. State v. Alderman, 78 A. 331, 83 Conn. 597. Fla. Bates v. State, 84 So. 373, 78 Fla. 672 ; Johnson v. State, 40 So. 678, 51 Fla. 44; Melbourne v. State, 40 So. 189, 51 Bla. 69 ; Wallace v. State, 26 So. 713, 41 Fla. 547; Doyle v. State, 22 So. 272, 39 Fla. 155, 63 Am. St. Rep. 159. Ga. Wilson v. State, 70 S. E. 193, 8 Ga. App. 816 ; PhiUips v. State, 62 S. E. 239, 131 Ga. 426; Cooper v. State, 59 S. E. 20, 2 Ga. App. 730. Idaho. State v. Schweitzer, 111 P. 130, 18 Idaho, 609. 111. People V. Pezutto, 99 N. E. 677, 255 111. 583; JMiller v. People, 82 N. E. 391, 229 lU. 376 ; People v. Johnson, 150 111. App. 424. • Imd. Koerner v. State, 98 Ind. 7; Binns v. State, 66 Ind. 428. Iowa. State V. Teale, 142 N. W. 235, 162 Iowa, 451. Kan. State v. Shew, 57 P. 137, 8 Kan. App. 679; State v. Johnson, 50 P. 907, 6 Kan. App. 119. Ky. Rand v. Commonwealth, 195 S. W. 802, 176 Ky. 343. La. State v. Fontenot, 23 So. 634, 50 La. Ann. 537, 69 Am. St. Eep. 455. Mich. People V. Auerbaeh, 141 N. W. 869, 176 Mich. 23, Ann. Cas. 1915B, 557; People v. Schick, 42 N. W. 1008, 75 Mich. 592. Miss. De Silva v. State, 47 So. 464, 93 Miss. 635. Mo. State V. Fish, 195 S. W. 997 ; State V. Langley, 154 S. W. 713, 248 Mo. 545; State v. Webb, 146 S. W. 805, 163 Mo. App. 275 ; State v. Bon- ner, 77 S. W. 463, 178 Mo. 424. Neb. Titterington v. State, 110 N. W. 678, 78 Neb. 8; Parker v. State, 108 N. W. 121, 76 Neb. 765. Nev. State V. Buralli, 71 P. 532, 27 Nev. 41. N. T. People V. Brown, 96 N. E. 367, 203 N. X. 44, Ann. Cas. 1913A, 732 ; People v. Walker, 91 N. E. 806, 198 N. Y. 329, reversing judgment 118 N. T. S. 1132, 134 App. Div. 909. N. C. State v. Hand, 86 S. E. 1005, 170 N. C. 703 ; State v. MedUn, 36 S. E. 344, 126 N. C. 1127. Okl. Gray v. State, 122 P. 265, 7 Okl. Cr. 102 ; Kirk v. Territory, 60 P. 797, 10 Okl. 46. Or. State v. Stiles, 160 P. 126, 81 Or. 497 ; State v. Bock, 88 P. 318, 49 Or. 25; State v. Andrews, 58 P. 765, 35 Or. 388. Pa. Commonwealth v. Bonello, 89 A. 553, 242 Pa. 381; Commonwealth V. Calhoun, 86 A. 472, 238 Pa. 474. Tenn. Powers v. State, 97 S. W. 815. 117 Tenn. 363. Tex. Sarli v. State, 189 S. W. 149, 80 Tex. Cr. R. 161; Leary v. State, 117 S. W. 822, 55 Tex. Cr. B. 547; Schwartz v. State, 111 S. W. 399, 53 Tex. O. R. 449; Hazlett v. State, (Cr. App.) 96 S. W. 36; Spivey v. State, 77 S. W. 444, 45 Tex. Cr. R. 496; Bradshaw v. State, 70 S. W. 215, 44 Tex. Or. B. 222 ; Owens v. State, 46 S. W. 240, 39 Tex. Cr. R. 391. Utah. State v. Seymour, 163 P. 789. 49 Utah, 285. Va. BosweU v. Commonwealth, 20 Grat. 860. Wash. State v. Phillips, 67 P. 608, 27 Wash. 364. W. Va. State v. Dickey, 33 S. E. 231, 46 W. Va. 319; State v. Robin- son, 20 W. Va. 713, 43 Am. Rep. 799. Wis. Oupps V. State, 97 N. W. 210, 120 Wis. 504, 102 Am. St. Rep. 996, rehearing denied 98 N. W. 546, 120 Wis. 504, 102 Am.. St. Rep. 996. Instructions obnoxious to rule. A charge that the absence of any probable motive for the commission of the crime was a circumstance which should be considered in de- fendant's favor. State v. Bobbitt, 114 S. W. 511, 215 Mo. 10. A charge, on a prosecution of a boy under 1-J years old, that, in determining whether he had sufficient intelligence to entertain a criminal intent, the fact that he was a bright boy may be considered, is erroneous in as- §74- INSTRUCTIONS TO JURIES 132 found in order to find an ultimate fact, have assumed the existence sumlng that he was a bright boy. Neville v. State, 41 So. 1011, 148 Ala. 681. An instruction that, if de- fendant and the third person conniv- ed together to make a sale to the witness for the purpose of evading the law, the transaction was a sale, is erroneous for assuming the fact of connivance, not shown by the evi- dence. Kandell v. State, 90 S. W. 1012, 49 Tex. Cr. R, 261. An in- struction on a trial for murder that accused could not invoke the aid of the doctrine of self-defense, for acts done after he had disabled deceased with a pistol shot, is erroneous, as it assumes that deceased was dis- abled. McOrory v. State (Miss.) 25 So. 671. A charge, in a prosecution for homicide, that he who slays an- other in a duel, whether formally or suddenly improvised, and however fairly conducted, is legally a murder- er, and is guilty of murder is er- roneous, as assuming that the alter- cation between defendant and de- ceased constituted a duel. Stringer V. State (Miss.) 38 So. 97. A charge, in a prosecution for assault with in- tent to murder, that defendant was attacked at his own house, and that the law does not require that he re- treat in order to plead self-defense, and the principle extends to his dwelling house with so much addi- tional space as Is used for the pur- pose of a dwelling assumes that de- fendant was attacked. Pearson v. State, 41 So. 733, 148 Ala. 670. A requested instruction on self-defense, commencing, "If you believe the de- fendant, at the time of the killing, had a reasonable apprehension and belief that deceased was about to execute hig threat to kill him," is erroneous, as declaring as a fact that deceased had threatened to kill de- fendant. People V. Roemer, 45 P. 1003, 114 Cal. 51. A charge in a prosecution for homicide, that if, at the time of the killing, deceased was attacking, or about to attack, defend- ant with a deadly weapon, defend- ant was not bound to retreat, assumes that defendant could not have re- treated without endangering his safety. GafCord v. State, 25 So. 10, 122 Ala. 54. A charge that, if de- ceased was near the place of the killing, in concealment, early in the morning of the killing, and this fact was communicated to accused, he had a right to arm himself, and, be- lieving that deceased had left the place where he had been between de- fendant and his oxen, the action of defendant in hunting his oxen was the action of a prudent man, and, if assaulted, he was justified in taking the life of deceased. Hisier v. State, '42 So. 692, 52 Ma. 30. A requested instpuction if defendant was in dan- ger of his life or of serious bodily harm, or if he reasonably believed he was, and defendant was free from fault in bringing on difficulty, he had right to strike in self-defense, was properly refused, because as- suming that defendant used no more force' than was necessary to repel alleged danger to his life or the ap- parent grievous injury to his person. Buckner v. State, 81 So. 687, 17 Ala. App. 57. An instruction, in a prosecu- tion for violating a city ordinance as to transportation of intoxicating liq- uor, that, if the jury believed that de- fendant "had hired a taxicab or had the control or direction of the tax« icab in which the suit cases con- taining liquor were carried" from the station to a certain point, he was transporting liquor within the meaning of the city ordinance, was erroneous as assuming that the suit cases were carried and taken by de- fendant or under his direction. City of Spokane v. Dale, 192 P. 921, 112 Wash. 533. A statement in an instruc- tion, if "at any time between the time they took these turkeys to the bug- gy," is error, as assuming a fact; the evidence being conflicting as to who took them there, and this being a matter of importance. Common- wealth V. Light, 45 A. 933, 195 Pa. St. 220. An instruction, in a pros- ecution for concealing stolen prop- erty, that if defendant, in concealing the property as alleged in the indict- ment, etc. Oddo V. State, 44 So. 646, 152 Ala. 51. An instruction that de- 133 ASSUMPTIONS AS TO EXISTENCE OF FACTS •§74 of such evidentiary facts or which state that if a certain proposition fendant's possession of a buggy, alleg- ed to have been stolen, recently after tlie commission of tlie offense, "unsat- isfactorily accounted for," was prima facie evidence that defendant com- mitted the offense is erroneous as assuming that defendant's explana- tion of his possession was unsatis- factory. Miller v. People, 82 N. E. 391, 229 lU. 376. Where accused de- nied that he carried a weapon at all at the time he was charged with carrying one concealed, an instruc- tion "that if the pistol" was carried so exposed to view that it could be readily recognized as a pistol he car- ried it openly, but if he carried it concealed, even for a minute, the of- fense was complete, etc., was erro- neous as eliminating the defense al- leged. Jenkins v. State, 58 S. B. 1063, 2 Ga. App. 626. Instrnotions not improper within rule. A paragraph in an instruction on reasonable doubt that a juror may not create inaterials of doubt by resorting to trivial supposi- tions and remote conjecture, as to a possible state of facts different from that established by the evidence. State V. Crean, 114 P. 603, 43 Mont. 47, Ann. Gas. 1912G, 424. An in- struction in a prosecution for bigamy that, in determining the criminal in- tent, the jury might consider the fact, "if such be the fact," that in making application for license to marry defendant's second vsdfe he misstated his name and residence^ and falsely concealed his former marriage, was not objectionable as assuming that defendant in fact did so conceal siich former marriage. Fletcher v. State, 81 N. E. 1083, 169 Ind. ,77, 124 Am. St. Rep. 219. An instruction that, where two or more persons are associated together for purpose of doing an unlawful act, the act of one is deemed act of all is not objectionable as assuming ex- istence of conspiracy. State v. Ohong Ben, 173 P. 258, 89 Or. 313. In a prosecution of two defendants for conspiracy, an instruction that the jury may convict either or both of the defendants, provided that those, the one or both to be convict- ed, conspired together or with some other person or persons jointly indict- ed, or that the jury might find either or both not guilty, is not objectionable as assuming that one or both of the defendants were to be convicted. Imboden v. People, 90 P. 608, 40 Colo. 142. An instruction, in a pros- ecution for forging a aeed, that, while the jury cannot find defendant guilty on proof that the acknowledg- ment was forged, yet, if the jury be- lieve it was forged, and that the body of the deed was written by the same person, then, in determining whether the deed was a forgery, the forged acknowledgment can be con- sidered along with other facts and circumstances, is not objectionable, as assuming that the acknowledg- ment was forged. State v. Pyscher, 77 S. W. 836, 179 Mo. 140. An in- struction, in a prosecution for the fraudulent conversion of property, that if the jury believed that defend- ant was in the possession of the property of another by virtue of a contract of hiring, and unlawfully converted the property to his own use, he was guilty, etc., did not as- sume .that there was a contract of hiring. Lewallen v. State, 87 S. W. 1159, 48 Tex. Cr. R. 283. An in- struction that, if accused assaulted the deceased, the latter had a right to use such force as was necessary to prevent the assault, and that, if defendant killed the deceased when he was only making such resistance as was necessary to defend himself from the assault of defendant, de- fendant would be justifiable in kill- ing deceased, is not erroneous as as- suming that defendant assaulted the deceased. Tolbirt v. State, 53 S. E. 327, 124 Ga. 767. An instruction, on a prosecution for murder, that if the jury believe that ' defendant brought on the difficulty, and was the first assailant, he cannot avail himself of the right to self-de- fense, however imminent to the dan- ger in which he may have found himself in the progress of the affray, is not open to the objection that it §74 INSTRUCTIONS TO JURIES 134 is true certain results will follow, and in the hypothesized proposi- assumes there was a diflSculty, and that there was an affray, since, in the absence of a difficulty and affray, the killing would not have taken place. Henry v. People, 65 N. E. 120, 198 111. 162. An instruction that if defendant was without fault in bringing on the shooting at a place where he had a right to be, and was assaulted by the injured party, and from said assault defendant believ- ed, and had reasonable ground to believe, he was in great danger of losing his life or receiving great bod- ily harm from the injured party, he would be justified in any defense nec- essary to protect himself, and in that view of the case he should be ac- quitted, and if the jury has reason- able doubt as to whether the defend- ant acted in self-defense when he fired the shot he should not be con- victed, does not assume that defend- ant brought on the shooting. Whit- ney V. State, 57 N. E. 398, 154 Ind. 573. A charge in homicide, that If deceased cursed defendant, and de- fendant, while under the heat of passion, aroused by the insult, se- cured a pistol, and killed deceased, he would be guilty of manslaughter, is not subject to the objectioa of as- suming that defendant was in the' heat of passion aroused by having been cursed by deceased. Moore v. State, 38 So. 504, 86 Miss. 160. An instruction, on a prosecution for mur- der, that, If defendant had been in- formed that decedent had been guilty of insulting conduct toward defend- ant's wife, and that soon thereafter defendant met decedent, etc., was not erroneous as telling the jury that the insult must have been established as a fact. Bays v. State, 99 S. W. 561, 50 Tex. Or. R. 548. In a prose- cution for murder, an instruction that defendant could not justify the killing of deceased by evidence that, after defendant had fired the fatal shot and killed deceased, friends or relatives of deceased fired on and wounded defendant, but that the acts of deceased or other persons, in or- der to give defendant the right to kill in self-defense, must have occur- red or existed before he fired the fatal shot, and not afterwards, is not erroneous as assuming facts. Instead of stating tbem hypothetlcally, and thus excluding defendant's theory of justification. Nash v. State, 95 S. W. 147, 79 Ark. 120. On a prosecu- tion for assault with intent to rape, an Instruction that if the jury be- lieved beyond a reasonable doubt that defendant induced prosecutrix to enter his buggy, and after he got her in the buggy he took hold of her with intent to have intercourse with her, against her will and with an in- tent to accomplish his object at all events by his strength and power against any resistance she might of- fer, then he was guilty of an assault with intent to rape, whether he suc- ceeded In his purpose or not, is not erroneous as assuming by the words "his object" that he had a criminal purpose. Donovan v. People, 74 N. E. 772, 2iq 111. 520. An Instruction on a prosecution for homicide that if defendant slew deceased with a razor, and that said razor was a deadly weapon, to find defendant guilty, does not tell the jury that the razor was a deadly weapon. Spears V. State, 56 S. W. 347, 41 Tex. Or. R. 527. On a prosecution for homi- cide, an instruction that though there may be some mental derangement, still, if the accused at such time had mental capacity sufficient to ade- quately comprehend the nature and consequences of his acts, and a mind sufficient to deliberate and premedi- tate, and to form an intent and pur- pose to kill — an unimpaired will pow- er sufficient to control an impulse to commit crime — he was not entitled to an acquittal on the ground of men- tal incapacity. Is not bad as assum- ing that accused had sufficient men- tal capacity to commit the crime. Hoover v. State, 68 N. E. 591, 161 Ind. 348. An Instruction that no nyin can, by his own lawless act, create a necessity for acting in self- defense, when considered with in- structions properly defining self-de- fense, is not erroneous as assuming that defendant created the necessity 135 ASSUMPTIONS AS TO EXISTENCE OF FACTS §74 tion facts are involved which are assumed.* So such rule is broken by Lis own lawless act to produce a fear that his life was in clanger from deceased, and taking advantage of the plea of self-defense made it nec- essary to kill. Robinson v. Territory, 85 P. 451, 16 Okl. 241, reversed Same V. Territory of Oklahoma, 148 *'. 830, 78 O. C. A. 520. A charge, in prosecution for incest, that if Jury believed that parties were uncle and niece they wooild be within statute. Griffin v. State, 202 S. W. 87, 83 Tex. Cr. R. 157. An instruction, in a prosecution for hog theft, that, if the offense was committed, it was complete when the hog was taljen, and if so taken, and if defendant was guilty as a principal in the orig- inal taking, under circumstances making it theft, he could not be re- lieved from punishment by reason of his failure to aid In bringing the hog to town after such taking, if any. Newberry v. State (Tex. Cr. App.) 74 S. W. 774. An instruction on a trial for malicious shooting, that the principles of the law of self- defense in murder cases applied to to "malicious shooting cases," does not assume the fact of malice on the part of defendant, since the terms used indicated the class of cases to which the one on trial belonged, as shown by the indictment or charge, rather than by the evidence, and re- ferred not to the case on trial but to such class of cases. State v. Lav- in, 60 S. E. 888, 64 W. Va. 26. An instruction that If the jury found that an assault with intent to rape was upon a female under 18 years, "to wit, of the age of 15 years," does not assume the age of the victim to be 15 years. Dickens v. People, 152 P. 909, 60 Colo. 141. str. S. White V. Van Horn, 159 U. S. 3, 15 Sup. Ct. 1027, 40 L. Ed. 55. Ala. Denton Bros. v. Foster. 70 So. 152, 195 Ala. 53; Smith v. E. T. Davenport & Co., 68 So. 545, 12 Ala. App. 456; Continental Gin Co. v. Milbrat, 65 So. 424, 10 Ala. App. 351, certiorari denied Ex parte Continental Gin Co., 66 So. 1008, 191 Ala. 660; Vinegar Bend Lumber Co. v. Soule Steam Feed Works, 62 So. 279, 182 Ala. 146; Western Union Telegraph Co. v. Bums, 51 So. 373, 164 Ala. 252. Ark. St. Louis, I. M. & S. By. Co. v. Rhoden, 123 S. W. 798, 93 Ark. 29, 137 Am. St. Rep. 73, 20 Ann. Cas. 915; St. Louis, I. M. & S. Ry. Co. V. Fambro, 114 S. W. 230, 88 Ark. 12; Western Coal & Mining Co. v. Burns, 104 S. W. 535, 84 Ark. 74. Cal. Tousley v. Pacific Electric Ry. Co., 137 P. 31, 166 Cal. 457; Still V. San Francisco & N. W. Ry. Co., 98 P. 672, 154 Cal. 559, 20 L. R. A. (N. S.) 322, 129 Am. St. Rep. 177. Colo. Finding v. Gitzen, 131 P. 1042, 24 Colo. 38 ; Patrick Red Sand- stone Co. v. Skoman, 1 Colo. App. 323, 29 Pac. 21; Downing v. Brown, 3 Colo. 571. Conn. Wilson v. Waltersville School Dist, 46 Conn. 400; Miles v. Douglas, 34 Conn. 393. 111. Commercial State Bank of Forreston v. Polkprts, 200 111. App. 385 ; Carlisle v. Novak, 196 111. App. 385 ; Muenter v. Moline Plow Co., 193 III. App. 261; McDermott v. Griffiths, 190 111. App. 53 ; Devine v. L. Fish Furniture Co., 189 111. App. 136; Wilkinson v. .aJtna Life Ins. Co., 144 111. App. 38, judgment affirm- ed 88 N. E. 550, 240 111. 205, 25 L. R. A. (N. S.) 1256, 130 Am. St. Rep. 269. Ind. Cleveland, C, C. & St. L. Ry. Co. v. Cloud, 110 N. E. 81, 61 Ind. App. 256; Lake Shore & M. S. Ry. Co. V. W. H. Mclntyre Co., 108 N. E. 978, 60 Ind. App. 191 ; Ohio & M. Ry. V. Pearcy, 27 N. E. 479, 128 Ind. 197. Iowa. Severs v. Cleveland Coal Co., 159 N. W. 194, 179 Iowa, 235; Case V. Chicago Great Western Ry. Co.. 126 N. W. 1037, 147 Iowa, 747: Connors v. Chingren, 82 N. W. 934, 111 Iowa, 437. Kan. Baughman v. Venn, 33 Kan. 504, 6 P. 890 ; Jardicke v. Scrafford, 15 Kan. 120. Ky. Louisville City Ry. Co. v. Mercer, 11 Ky. Law Rep. (abstract) 810. Md. American Towing & I^ghter- 4 See note, on page 136. §74 INSTRUCTIONS TO JURIES 136 by instructions which, in leaving to the jury the question of wheth- ing Co. V. Baker-Whiteley Coal Co., 75 A. 341, 111 Md. 504 ; Monumental Brewing Co. v. Larrimore, 72 A. 596, 109 Md. 682. Mass. Bisbee v. McManus, 118 N. E. 192, 229 Mass. 124; Dunham V. Holmes, 113 N. E. 845, 225 Mass. 68; Edwards v. WiUey, 107 N. E. 450, 219 Mass. 443 ; Malonlca v. Pis- oopo, 104 N. E. 839, 217 Mass. 324; Clark V. American Express Co., 83 N. E. 365, 197 Mass. 160. Minn. Macy v. St. Paul & D. Ry. Co., 35 Minn. 200, 28 N. W. 249; Paber v. St. Paul, M. & M. Ry. Co., 29 Minn. 465, 13 N. W. 902. Mo. Lamport v. General' Acci- dent, Fire & Life Assur. Corp., 197 S. W. 95, 272 Mo. 19; Carpenter v. Gruendler Mach. Co., 141 S. W. 1147, 162 Mo. App. 296; Hartley v. Cal- breath, 106 S. W. 570, 127 Mo. App. 559. Mont. Trogdon v. Hanson Sheep Co., 139 P. 792, 49 Mont. 1 ; Lindsley V. McGrath, 87 Pi 961, 34 Mont. 564. Neb. Van Dorn v. Kimball, 160 N. W. 953, 100 Neb. 590; Ottens v. Fred Krug Brewing Co., 78 N. W. 622, 58 Neb. 331. N. J. Heindel v. Hetzel, 82 A. 511. N. Y. Schoenholtz v. Third Ave. R. Co. (Sup.) 16 Misc. Rep. 7, 37 N. Y. S. 682 ; Rettig v. Fifth Ave. Transp. Co. (Super.) 6 Misc. Rep. 328, 26 N. T. S. 898 ; Trask v. Payne, 43 Barb. 569. N. C. Pigford V. Norfolk-South- ern R. Co., 75 S. E. 860, 160 N. C. 93, 44 L. R. A. (N. S.) 865; Horton v. Seaboard Air Line Ry., 58 S. E. 993, 145 N. C. 132. N. D. Landis v. Fyles, 120 N. W. 566, 18 N. D. 587. Okl. Waldock v. First Nat. Bank of Idabel, 143 P. 33, 43 Okl. 348. Or. Kemp v. Portland Uy., Light & Power Co., 145 P. 274, 74 Or. 258 ; Helser v. Shasta Water Co., 143 P. 917, 71 Or. 566. Pa. Fern v. Pennsylvania B. Co., 95 A. 590, 250 Pa. 487 ; Friedland v. Altoona & Logan Valley Electric Ry. Co., 59 Pa. Super. Ct. 539. R. I. National Machinery Co. v. Kirby, 94 A. 149. S. C. Southern Realty & Inv. Co. V. Keenan, 83 S. E. 39, 99 S. C. 195 ; Thornton v. Seaboard Air Line Ry., 82 S. B. 433, 98 S. 0. 348. S. D. Davis V. C. & J. Michel Brewing Co., 140 N. W. 694, 31 S. D. 284 ; Arneson v. Spawn, 2 S. D. 269, 49 N. W. 1066, 39 Am. St. Rep. 783. Tenn. GTilf Compress Co. v. In- surance Co. of Pennsylvania, 167 S. W. 859, 129 Tenn. 586. Tex. Chicago, R. I. & G. Ry. Co. v. Smith (Civ. App.) 197 S. W. 614; McCulloh v. Reynolds Mortgage Co. (Civ. App.) 196 S. W. 565 ; Fidelity & Deposit Co. of Maryland v. Anderson (Civ. App.) 189 S. W. 346 ; Ft. "Worth & D. C. Ry. Co. V. Wininger (Civ. App.) 151 S. W. 586 ; Pecos & N. T. Ry. Co. V. Coffman (Civ. App.) 121 S. W. 218. Vt. Taplin & Rowell v. Marcy, 71 A. 72, 81 Vt. 428. Wash. Larson v. McMillan, 170 P. 324, 99 Wash. 626 ; Phoenix Assur.- Co. v. Columbia & P. S. R. Co., 159 P. 369, 92 Wash. 419, opinion modi- fied 162 P. 519, 94 Wash. 323. W. Va. Harrison v. Farmers' Bank, 4 W. Va. 393. ■Wis. Mickuczauski v. Helmholz Mitten Co., 134 N. W. 369, 1 148 Wis. 153; Ferguson v. Truax, 110 N. W. 395, 132 Wis. 478, rehearing granted 111 N. W. 657, judgment reversed 112 N. W. 513, 14 L. R. A. (N. S.) 350, 13 Ann. Cas. 1092. i Ala. Birmingham Ry., Light & Power Co. v. Lipscomb, 73 So. 962, 198 Ala. 653; Western Ry. of Ala- bama V. Mays, 72 So. 641, 197 Ala. 367; Alabama Great Southern R. Go. V. Hanbury, 49 So. 467, 161 Ala. 358 ; Mobile Light & R, Co. v. Walsh, 40 So. 560, 146 Ala. 295; Birmingham Ry., Light & Power Co. v. Mullen, 35 So. 701, 138 Ala. 614; Richmond & D. R. Co. V. Greenwood, 99 Ala. 501, 14 So. 495 ; Alabama Great Southern R. Co. V. Roebuck, 76 Ala. 277. Cal. Kahn v. Triest-Rosenberg Cap Co., 73 P. 164, 139 Cal. 340. Fla. Florida East Coast Ry. Co., V. McElroy, 72 So. 459, 72 Fla. 90. 111. Illinois Cent, R. Co. v. John- son, 77 N. E. 592, 221 lU. 42, affirming 137 ASSUMPTIONS AS TO EXISTENCE OP FACTS §74 er a party had knowledge of certain matters, assume the existence judgment 123 lU. App. 300; Mom- ence Stone Oo. v. Turrell, 68 N. E, 1078, 205 111. 515, affirming judgment 106 111. App. 160; Chicago & A. R. Co. V. Winters, 51 N. B. 901, 175 111. 293, affirming judgment 65 111. App. 435; Lord v. Board of Trade of Wichita, 45 N. B. 265, 163 111. 45; Chicago, St: L,. & P. R. Co. v. Hutch- inson, 120 111. 587, 11 N. E. 855; Adams v. Elgin & Belvidere Electric Co., 204 111. App. 1; Osborn v. City of lit. Vernon, 197 111. App. 267 ; Chi- cago & A. R. Co. V. Gore, 92 111. App. 418; Chicago & A. R. Co. v. Bloom- field, 7 111. App. (7 Bradw.) 211. Iowa. Selensky v. Chicago Great Western By. Co., 94 N. W. 272, 120 Iowa. 113. Md. Baltimore & O. B. Co. v. State. 64 A. 304, 104 Mid. 76. Mich. McCuUough v. Minneapo- lis, St. P. & S. S. M. By. Co., 101 Mich. 234, 59 N. W. 618. Mo. Klein v. St. Liouls Transit Co., 93 S. W. 281, 117 Mo. App. 691; Freeman v. 'Metropolitan St. By. Co., 68 S. W. 1057, 95 Mo. App. 94; Gar- esche v. Boyce, 8 Mo. 228. N. M. Pryor v. Portsmouth Cat- tle Co., 6 N. M. 44, 27 P. 327. N. C. Bumgardner v. Southern By. Co., 43 S. E. 948, 132 N. C. 438. Tex. Gulf, C. & S. F. By. Co. v. Sullivan (Civ. App.) 190 S. W. 739; Dallas Consol. Electric St. By. Co. v. Kelley (Civ. App.) 142 S. W. 1005 ; St. Louis, S. F. & T. By. Co. v. Bowles, 131 S. W. 1176, 63 Tex. Civ. App. 23 ; Long V. Consumers' Light & Heating Co., 121 S. W. 172, 55 Tex. Civ. App. 298; Suderman & Dolson v. Kriger, 109 S. W. 373, 50 Tex. Civ. App. 29; Texas Midland R. Co. v. Booth, 80 S. W. 121, 35 Tex. Civ. App. 322; Texas & P. By. Co. v. Berry, 72 S. W. 423, 32 Tex. Civ. App. 259; Gulf, C. & S. F. By. Co. V. Shelton, 69 S. W. 653, 30 Tex. Civ. App. 72, rehearing denied 70 S. W. 359, affirmed 72 S. W. 165, 96 Tex. 301. Wash. Wren v. City of Seattle, 170 P. 342, 100 Wash. 67, 3 A. L. B. 1123. Instmotions improper within rule. An instruction that, If a car- rier's agent was negligent in deliver- ing to plaintiff's wife a ticket to the wrong station, arid i:^ such negligence directly and proximately produced any injury, such as the allegations and proof established, if any, then defend- ants were liable for such injuries as were created as the direct and proxi- mate cause thereof, if any, was objec- tionable as^ on the weight of the evi- dence, and' as inducing the jury to believe that it was established that the agent was negligent in selling the ticket, and that such negligence re- sulted in injury to plaintiff's wife. International & G. N. B. Co. v. Doolan, 120 S. W. 1118, 56 Tex. av. App. 503. An instruction, in a action by an em- ploys Iqr injuries by a ladder break- ing, in which there was no evidence a» to how he adjusted his weight in de- scending the ladder, that if it broke because he improperly adjusted his weight on- it so as to throw his weight on one side piece, and if he had not so thrown his weight, but had kept it leaning on the ladder in the way it was intended the ladder should carry it, the ladder would not have broken, he could not recover. Adams v. Gulf, C. & S. F. By. Co. (Tex. Civ. App.) 105 S. W. 526. An instruction, in an action by a servant against a rail- road company for injuries, that if de- fendant's servants, in charge of Its locomotive, knew or could have known that plaintiff was in the car to which the coupling was made, and of his per- ilous condition and surroundings therein, and they negligently propelled defendant's locomotive against the car with greater force than necessary, causing the car door to fall on him, and that plaintiff, -in remaining in the car, exercised ordinary care, they should find for plaintiff, is erroneous, as it assumes that plaintiff was in a perilous position. St. Louis S. W. By. Co. of Texas v. Sibley, 68 S. W. 516, 29 Tex. Civ. App. 396. An instruction, in an action by a servant against a rail- road for injuries received while in the latter's employ, that, if defendant's servants in charge of its locomotive knew, or could have known; that plaintiff was In the car to which cou- §75 INSTRUCTIONS TO JURIES 138 of such matters,^ or by instructions on whether a wrong has been done or a breach of contract committed, which assume that dam- ages have resulted from any such wrong or breach of contract,® or by instructions on the measure of damages which assume that the alleged tort or breach of contract on which the action is founded was committed,' or by instructions on the right to exemplary dam- ages which assume that the tort for which the action is brought is of such a character as to warrant the allowance of exemplary damages.* § 75. Limitations or qualifications of rule ' An instruction which merely asserts an abstract legal propo- sition, without attempting to apply it to the facts in the case on trial, does not assume the existence of facts within the above rule.^ It pllng was made, and of his perilous condition and surroundings therein, and they negligently propelled defend- ant's locomotive against the car with greater force than necessary, causing the car door to fall on plalijtiff, and that plalhtlfC, in remaining in the car, •exercised ordinary care, they should find for the plaintiff. St. Louis S. W. ^y. Co. of Texas v. Sibley, 68 S. W. ■516, 29 Tex. Civ. App. 396. Where a ^servant of a railroad company was killed by the falling of a car which was raised upon jacts, because of the breaking of a timber upon which one of the jacks rested, and it was an issuable fact whether the servant was negligent in using that timber, a charge that, if the falling of the car was caused by the breaking of the timber, there could be no recovery, was properly refused, being In effect a peremptory instruction. Gulf, C. & S. F. Py. Co. V. Kennedy (Tex. Civ. App.) 139 S. W. 1009. An instruction, in an action to recover damages for the obstruction of "navigable waters, thereby preventing plaintiff from floating his logs to market, directing the jury to find for plaintiff, if they believed from the preponderance of the evidence that defendant unreason- ahly detained plaintiff's logs by reason of wrongfully obstructing their pas- sage "along said navigable waters," is incorrect as being on the weight of the evidence ; the question of the nav- igability of those waters being contro- verted. Orange Lumber Co. v. Thomp- son (Tex. Civ. App.) 113 S. W. 563. 5 Straight Creek Coal Co. v. Han- ey's Adm'r, 87 S. W. 1114, 27 Ky. Law Rep. 1117. « Walter v. Alabama Great South- em E. Co., 39 So. 87, 142 Ala. 474; Crossley v. St. Louis, I. M. & S. Ey. Co., 199 111. App. 195; Dougherty v. Vanderpool, 35 Miss. 165 ; Gulf, C. & S. F. Ry. Co. V. White (Tex. Civ. App.) 32 S. W. 322. 7 III. Gibbons v. Southern Illinois Ey. & Power Co., 199 111. App. 154. Ind. Steele v. Davis, 75 Ind. 191. Micli. Prentiss v. Ross' Estate, 96 Mich. 83, 55 N. W. 613. Minn. Smith v. Dukes, 5 Minn. 373 (Gil. 301). Mo. Orscheln v. Scott, 79 Mo. App. 534. Pa. Hayes v. Pennsylvania R. Co., 45 A. 925, 195 Pa. 184. Tex. Strawn Coal Co. v. Trojan (Civ. App.) 195 S. W. 256; Internation- al & G. N. R. Co. V. Bingham, 89 S. W. 1113, 40 TeSc. Civ. App. 469; St. Louis S. W. Ry. Co v. Smith (Civ. App.) 63 S. W. 1064. 8 PercifuU v. Coleman, 72 S. W. 29, 24 Ky. Law Rep. 1685. 9 People V. Wilklns, 111 P. 612, 158 Cal. 530; People v. Lawrence, 76 P. 893, 143 Cal. 148, 68 L. R. A. 193; Florida Cent. & P. R. Co. v. Foxworth, 25 So. 338, 41 Fla. 1, 79 Am. St. Rep. 149; Illinois Steel Co. v. Hanson, 97 111. App. 469, judgment affirmed 195 111. 106, 62 N. E. 918. 139 ASSUMPTIONS AS TO EXISTENCE OP FACTS §75 is not improper for the court to assume facts merely for the purpose of illustrating the law of the case.^** The court may assume facts which are a matter of common knowledge, and of which, therefore, it may take judicial notice," and a statement by the court of the claims of the parties, as made in their pleadings or otherwise, is not objectionable as assuming the existence of the facts alleged as the basis of such claim ; ^* this rule applying -to statements by the court in a Criminal prosecution as to the theory of the prosecution or as to matters alleged in the indictment or information.^* An instruction cannot be objected to, as assuming facts, if it submits such facts as issues to the jury.^* Thus an instruction that 10 Miller v. State, 74 So. 840, 16 Ala. App. 3; Masters v. Town of Warren, 27 Conn. 293. 11 TI. S. (C. C. N. X.) Hoagland v. Canfield, 160 F. 146. Cal. People v. Mayes, 45 P. 860, 113 Cal. 618. 111. Harris v. Shebek, 151 111. 287, 37 N. B. 1015 ; City of Joliet v. Shu- feldt, 144 111. 403, 32 N. E. 969, 36 Am. St. Eep. 453, 18 L. R. A. 750, af- firming 42 ill. App. 208. Mich. Lewis V. Bell, 109 Mich. 189, 66 N. W. 1091. Mo. State v. Nerzinger, 119 S. W. 379, 220 Mo. 36. ntah. Spiking v. Consolidated Ry. & Power Co., 93 P. 838, 33 Utah, 313. 12 IT. S. (C. C. A. Alaska) Llnd- blom V. Fallett, 145 F. 806, 76 C. C. A. 369. Cal. Anderson v. Seropian, 81 P. 521, 147 Cal. 201; Carraher v. San Francisco Bridge Co., 81 Cal. 98, 22 P. 480 ; Jarman v. Eea, 70 P. 216, 137 Gal. 339. Colo. De St. Aubin v. Field, 62 P. 199, 27 Colo. 414. Fla. Florida Ry. Co. v. Dorsey, 52 So. 963, 59 Fla. 260. 111. Illinois Cent. E. Co. v. Daven- port, 52 N. B. 266, 177 III. 110, affirm-- ing judgment 75 111. App. 579; Nipper V. Wabash R. Co., 187 111. App. 353. Ind. Kreag v. Anthus, 2 Ind. App. 482, 28 N. E. 773. Me. Skene V. Graham, 100 A. 938, 116 Me. 202. Neb. Hotel Ass'n of Omaha v. Walter, 23 ]^eb. 280, 36 N. W. 561. N. Y, West V. Banigan, 65 N. E. 1123, 172 N. T. 622, affirming judg- ment 64 N. Y. S. 884, 51 App. Div. 328 ; Polykranas v. Krausz, 77 N. Y. S. 46, 73 App. Div. 583. Tex. Missouri, K. & T. Ry. Co. of Texas v. Kyser & Sutherland, 95 S, W. 747, 43 Tex. Civ. App. 322 ; Texas & N. O. E. Co. V. Kelly, 80 S. W, 1073, 34 Tex. Civ. App. 21 ; International & G. N. R. Co. V. Locke (Civ. App.) 67 S. W. 1082 ; Sah Antonio & A. P. Ry. Co. V. Keller, 11 Tex. Civ. App. 569, 32 S. W. 847. 13 People V. Worden, 45 P. 844, 113 Cal. 569 ; Knights v. State, 78 N. W. 508, 58 Neb. 225, 76 Am. St. Rep. 78; Burk V. State, 95 S. W. 1064, 50 Tex. Cr. E. 185. 1* Ala. Emerson v. Lowe Mfg. Co., 49 So. 69, 159 Ala. 350; Seaboard Mfg. Co. V. Woodson, 94 Ala. 143, 10 So. 87; Hall v. Posey, 79 Ala. 84. 111. Fitzgerald v. Benner, 76 N. B, 709, 219 111. 485, affirming judgment 120 111. App. 447; Globe Mut. Life Ins. Ass'n v. Ahern, 60 N. E. 806, 191 111. 167, affirming judgment 92 111. App. 326; Smith v. Henline, 51 N. B. 227, 174 111. 184; Siegel, Cooper & Co. v. Connor, 49 N. E. 728, 171 111. 572, af- firming judgment 70 111. App. 116; Brown v. Leppo, 194 111. App. 243; Raxworthy v. Heisen, 191 111. App. 457 ; Plynn v. St. Louis Nat. Stock Yards, 165 111. App. 646. Ind. Cleveland, C, C. & St. L. Ry. Co. V. Clark, 97 N. E. 822, 51 Ind. App. 392. Iowa. Lauer v. Banning,, 131 N. W. 783, 152 Iowa, 99; Jensen v. Damm. 103 N. W. 798, 127 Iowa, 555;, §75 INSTRUCTIONS TO JURIES 140 the jury may take into consideration certain matters, "if any," etc., will usually not be held erroneous, as assuming the existence of Fitch V. Mason City & 0. L. Traction Co., 100 N. W. 618,. 124 Iowa, 665. Ky. Evans' Adm'r v. Spillman, 6 B. Mon. 334. Md. Fulton V. Maccracken, 18 Md. 528, 81 Am. Dec. 620. Mass. Wyman v. Whicher, 60 N. E. 612, 179 Mass. 276 ; Emmons v. Al- vord, 59 N. E. 126, 177 Mass. 466. Mo. Roy V. Kansas City, 224 S. W. 132, 204 Mo. App. 332 ; Cooley v. Dunham, 195 S. "W. 1058, 196 Mo. App. 399; Warnke v. A. Leschen & Sons Rope Co., 171 S. W. 643, 186 Mo. App. 30; Torreyson v. United Rys. Co. of St. Louis, 152 S. W. 32, 246 Mo.. 696, affirming judgment 145 S. W. 106, 164 Mo. App. 366; Southern Missouri & A. Ry. Co. V. Woodard, 92 S. W. 470, 193 Mo. 656; O'Neill v. Blase, 94 Mo. App. 648, 68 S. W. 764 ; O'Connell v. St Louis Cable & W. Ry. Co., 106 Mo. 482, 17 S. W. 494. Neb. Tunnicliffe T. Fox, 94 N. W. 1032, 68 Neb. 811. N. Y. Nugent v. Breuchard, 51 N. E. 1092, 157 N. Y. 687, affirming judg- ment and order Nugent V. Breuchard, 36 N. Y. S. 102, 91 Hun, 12. Pa. Bretz T. Diehl, 117 Pa. 589, 11 A. 893, 2 Am. St. Rep. 706. S. C. Pooler v. Smith, 52 S. B. 967, 73 S. C. 102. Tex. Glover v. Pfeuffer (Civ. App.) 163 S. W. 984 ; Missouri, K. & T. Ry. Co. of Texas v. McCormick (Civ. App.) 160 S. W. 429 ; Chicago, R, I. & G. Hy. Co. V. De Bord (Civ. App.) 146 S. W. 667; Ft. Worth & R. G. Ry. Co. v. Montgomery (Civ. App.) 141 S. W. 813; San Antonio Traction Co. V. Warren (Civ. App.) 85 S. W. 26; St. Louis Southwestern Ry. Co. of Texas V. Wright (Civ. App.) 84 S. W. 270; Blake v. Austin, 75 S. W. 571, 33 Tex. Civ. App. 112; Galveston, H. & S. A. Ry. Co. V. Lynch, 55 S. W. 389, 22 ■Tex. Civ. App. 336; St. Louis S. W. Ry. Co. of Texas v. Casseday, 50 S. W. 125, 92 Tex. 525, reversing judgment (Civ. App.) 48 S. W. 6; Texas & N. O..R. Co. V. Echols, 41 S. W. 488, 17 Tex. Civ. App. 677; Austin & N. W. Ry. Co. v. Beatty, 73 Tex. 592, 11 S. W. 858. Va. McCrorey v. Thomas, 63 S. E. 1011, 109 Va. 373, 17 Ann. Cas. 373; Virginia Fire & Marine Ins. Co. v. Hogue, 54 S. E. 8, 105 Va. 355 ; Nor- folk & W. R. Co. V. Cottrell, 83 Va. 512, 3 S. E. 123. Wash. Nolan v. Stillwater Lum- ber Co., 118 P. 340, 65 Wash. 445. Wis. Lee V. Hammond, 90 N. W. 1073, 114 Wis. 550. Instmctions proper ivitliiii rule. An instruction that proof of defend- ant's liability is made out "when" cer- tain facts are shown is not objection- able, as assuming that such proof has been made, fflledge v. National City & O. Ry. Co., 100 Cal. 282, 34 P. 720, ' ' 38 Am. St. Rep. 290; Id., 34 P. 852. An instruction that plaintiff can re- cover on certain facts if she gave the conductor reasonable n,otice to stop the car does not assume that the no- tice given by plaintiff was reasonable. Springfield Consol. Ry. Co. v. HoefE- ner, 51 N. E. 884, 175 111. 634, affirm- ing judgment 71 111. App. 162. An in- struction stating, "if you find from the greater weight of the evidence that the defendant acting by its duly au- thorized agent, agreed," etc., is not er- roneous as assuming that a contract . was made with a duly authorized agent of defendant. NefE v. Harwood Barley MIg. Co., 193 111. App. 439. An instruction, in an action for goods sold and delivered, that if there was no evidence that defendant authorized the furnishing of the goods, if the jury believed that deifendant, subse- quent to the furnishing of the goods, for which charge was made, promised to pay for them, he was liable, is not objectionable, as assuming any facts to the injury of defendant. Reynolds v. Blake, 111 111. App. 53. An instruc- tion which tells the jury "to consider ■ all the facts and circumstances in evi- dence surrounding the transaction In regard to the releasing the defendant from the obligation to pay the sum claimed to be released," does not as- sume that the defendant was in fact released. Kemmerer v. Kokendifer, 65 111. App. 31. A charge, in an action for injuries to an employe working 141 ASSUMPTIONS AS TO EXISTENCE OF FACTS §75 any of such matters,^® and an instruction that if the jury find certain at a machine as a helper, that if the employer did not use ordinary care in the premises, but at the time of the accident the machine was in a defec- tive condition, dangerous to those working at or near it, and the defect was known to the employer, or in the exercise of ordinary care would have been known to it, then, on their so finding, the employer was guilty of negligence, and that, "unless they so found," the verdict must be for the employer, was not erroneous as as- suming that the machine was in a de- fective condition. Fries v. Bettendorf Axle Co., 101 N. W. 859, 126 Iowa, 138. An instruction that if the evidence showed that plaintiff and her husband treated certain paper as their joint pioperty, and each permitted the oth- er to exercise ownership over it, it would authorize a finding that each had a. half interest, and that any in- terest either had inconsistent there- with was relinquished to the other, did not tell the jury that proof of such facts was conclusive of joint owner- ship, but only that they might find it therefrom. Owen v. Christensen, 76 N. W. 1003, 106 Iowa, 394. An in- struction, if the railroad engineer, aft- er seeing plaintiff, failed to use ordi- nary care to stop the train or prevent injury, to find for plaintiff, was not objectionable, as assuming that he saw plaintiff, where in the first part of the instruction the question wheth- er he saw plaintiff was submitted for the jury's determination. Louisville & N. R. Co. V. Allen, 154 S. W. 1095, 153 Ky. 252. An Instruction, in an action for Injuries from a collision, that if the jury believed that the mo- torman saw, or by ordinary care could have seen, the plaintiff's wagon in dangerous nearness to the track, held not objectionable as assuming that the car was "in dangerous nearness thereto" without the qualification, "If you so find." Johnson v. Springfield Traction Co., 161 S. W. 1193, 176 Mo. App. 174. An Instruction, In an action for the death of a person in a. colli- sion, "If therefore you find from the evidence that M. L. K. (decedent) was at the time and place in question in a position of imminent peril of being struck by the car mentioned in evi- dence, and by reason of the fact that the buggy in which he was seated was upon or approaching the track on which said car was running," etc., did not assume that he was in a place of danger simply because his buggy was on or near the track, but required the jury to find those facts to be true in the light of other facts and circum- stances stated in the instruction. Kinlen v. Metropolitan St. Ey. Co., 115 S. W. 523, 216 Mo. 145. An instruc- tion that, while plaintiff, in accepting employment of defendant, assumed all the risks incident to the employment In which he was engaged, yet he did not assume those risks, if any such there were, arising from the negli- gence, if any, of defendant's employe, B., was not objectionable as assuming that B. was negligent Wright v. Din- ger Mining Co., 147 S. W. 213, 163 Mo. App. 536. An instruction, in an ac- tion for injuries received by an em- ploys from falling into an unguarded elevator shaft, that, if the room near the shaft was insnflBciently lighted, etc., plaintiff was entitled to recover, was not objectionable as assuming that the room was unlighted. Wen- dler V. People's House Furnishing Co., 65 S. W. 737, 165 Mo. 527. In an action for Injuries, where an instruc- tion required the jury to believe and find from the evidence that there was near the usual stopping place of a street car a depression in the street, and that "said depression, if any," was dangerous, its subsequent refer- ence to the depression as "said depres- sion," without adding "if any," was not erroneous. Costello v. Kansas City, 219 S. W. 386, 280 Mo. 576. A charge that, "if" a will was the result of undue influence, that alone was sufficient to impeach It, is not errone- ous, as assuming that there was im- due influence. Gordon v. Burris, 64 S. W. 546, 153 Mo. 223. An instruc- 10 Evans v. City of Joplin, 84 Mo. App. 296 ; Western Union Tel. Co. v. Chambers, 77 S. W. 273, 34 Tex. Civ. App. 17. §75 INSTEUCTIONS TO JURIES 142 facts, etc., does not improperly assume the existence of such facts.^® tion, in an action against a railroad company, that plaintiff could recover, tinder a certain state of facts, "if the jury find from the evidence that the defendant's engine was derailed by reason -of the cracked, defective, and dangerous condition of said wheel," does not assume the defective condi- tion of the wheel, but properly sub- mits such question to the jury. Geary V. Kansas City, O. & S. K. Co., 138 Mo. 251, 39 S. W. 774, 60 Am. St. Rep. 555, An instruction, In an action on a dramshop keeper's bond, for permit- ting plaintiff's minor son to enter and remain in the saloon, that if plaintiff showed that the keeper permitted the minor to enter and remain in the sa- loon the jury should render a verdict for plaintiff, while if plaintiff failed to so prove the verdict must be for de- fendant, was not erroneous as assum- ing that the minor entered and re- mained in the saloon, but left that question to the jury. McElroy v. Sparkman (Tex. Civ. App.) 139 S. W. 529. An instruction, in an action for injuries to a street car passenger while endeavoring to alight,, in which the court left it to the jury to say whether or not the car stopped, that it was the motorman's duty when he stopped the car to let passengers on or off to exercise such care as a reason- ably prudent motorman would exer- cise under similar circumstances, etc., was not objectionable, in that it as- sumed that the car was stopped to let off passengers at the time of the in- jury. Citizens' Ry. Co. v. Hall (Tex. Civ. App.) 138 S. W. 434. An instruc- tion in an action for injuries to an employs, that though the jury might believe that defendant's employSs were guilty of negligence, still if plain- tiff negligently placed himself in such position that he would probably be injured, and that he was guilty of neg- ligence in so doing, the verdict should be for defendant, was not erroneous, as assuming any fact. St Louis South- western Ey. Co. of Texas v. Norvell (Tex. Civ. App.) 115 S. W. 861. A charge, in an action against a railroad for injuries to a switchman caused by a handhold on a box car giving way while plaintiff was descending from the car, that plaintiff had a right to presume that defendant had exercised ordinary care to furnish a reasonably safe handhold for his use, and was not required to inspect such handhold before using it, but if the fact that the handhold was insecurely fastened was open and obvious to plaintiff, or if • he knew of the same, or must neces- sarily have discovered the same while engaged in the discharge of his duties, he would assume the resulting risk, was not subject to the objection of assuming that the handhold was inse- curely fastened, but submitted that question to the jury. Missouri, K. & - T. Ry. Co. of Texas v. Box (Tex. Civ. App.) 93 S. W. 134. The language of a charge, in an action for injury to a passenger while boarding a car, that if the jury believe the train was not stopped long enough for the passenger "in his physical condition as known to the conductor," will not be held to take from' the Jury the Issue whether the conductor knew his physical con- dition, where the intention to submit such issue Is clear from the preceding part of the charge. Houston & T. C. R. Co. V. Copley, 87 S. W. 219, 38 Tex. Civ. App. 568. An Instruction that if, on the day of his injury, plaintiff was employed as a laborer, and carrying a ladle filled with molten material to defendant's molding room, and walked over a certain path established by the defendant for the use of Its employes, etc., was not objectionable as assum- ing that defendant had established the path for the use of its employes. San Antonio Foundry Co. v. Drish, 85 S. W. 440, 38 Tex. Civ. App. 214. A charge that if the jury believe that plaintiff attempted to alight from a car after It had stopped, etc., is not objectionable as assuming the fact to be that the car had stopped when she attempted to alight. San Antonio Traction Co. v. Welter (Tex. Civ. App.) 77 S. W. 414. A charge that "if, from the evidence, you believe that sparks or cinders escaped from de- i« Caywood v. Seattle Electric Co., 110 P. 420, 59 Wash. 566. 143 ASSUMPTIONS AS TO EXISTENCE OF PACTS §75 So long as the court confines its statement of the law to principles, fen(Jant's engine, and got into plain- tiff's eyes, which caused plaintiff's in- juries," etc., was not objectionable as assuming that plaintiff's eyes were in- jured by sparks or cinders that escap- ed from the locomotive. St. Louis S. W. Ry. Co. V. Parks (Tex. Civ. App.) 7a S. W, 439. An instruction that "if the jury believed that plaintiff was inexperienced in jumping off moving trains and ignorant of the dangers, and if they believed it was no part of his ordinary duty to do so," etc., was not objectitaable as assuming the truth of the recitals made. Galveston, H. & S. A. Ey. Co. v. Sanchez (Tex. dv. App.) 65 S. W. 893. A charge that the jury should And for plaintiff if defendant had abandoned his busi- ness' in a store, sought to be subject- ed to execution, and was not using the store house in connection with his dwelling for the purpose of carrying on a boarding-house business, was not erroneous, as beiiig on the weight of evidence, in that it assumed that de- fendant was engaged in the boarding- house business. Freeman v. Gates, 55 S. W. 524, 22 Tex. Civ. App, 623. A charge, in an action for injuries to a passenger through the derailment of a train, that the company is liable if the bad condition of the track, road- bed, and switch, or the fast running of the train, were concurring proxi- mate causes of the wreck, and were brought about by the company's negli- gence, does not assume as facts the bad condition of the track and the fast running of the train. Houston, E. & W. T. Ry. Co. v. Summers (Tex. Civ. App.) 49 S. W. 1106, affirmed 51 S. W. 324, 92 Tex. 621. A charge that if the jury believed that "by reason of a ' defective road crossing, cattle guards, ditches, and bridge, or either of them, the car on which plaintiff was riding was derailed," etc., plain- tiff is entitled to recover, is not an assumption of the existence of said defects. Galveston, H. & S. A. Ry. Co, V. Waldo (Tex. Civ. App.) 32 S. W. 783. An instruction to the effect that defendant would not be liable if plain- tiff continued in its service after he knew of the defect which caused the accident, "unless you further find from the evidence that the plaintiff, by reason of his ignorance and inex- perience, did not know, or could not have reasonably known, the danger incident to said defect," is not open to the objection that It assumes that plaintiff was ignorant and inexperi- enced. Gulf, C. & S. F. R. Co. V. Wells (Tex. Sup.) 16 S. W. 1025. An instruc- tion that a servant did not accept risks which grew out of any defect in the road, rendering it more hazardous than reasonable, unless he had knowl- edge thereof, does not assume that de- fects existed. Taylor, B. & H. Ry. Co. V. Taylor, 79 Tex. 104, 14 S. W. 918, 23 Am. St. Rep. 316. An instruction that if the jury believed that the injury was caused both by the defective con- struction or unfitness of the engine for the purposes for which it was then used, and the negligence of the engi- neer and yard foreman, combined with the defect in the engine, the com- pany would be liable, is not obnoxious to the objection that it assumed as a fact that the engine was defective and unsuitable. Missouri Pac. Ry. Co. V. Lehmberg, 75 Tex. 61, 12 S. W. 838. An instruction that to authorize a verdict plaintiff must show, inter alia, that the injury was the immedi- ate result of the negligence of defend- ant's agent "in directing plaintiff to use said implement in an unskillful and dangerous manner, the plaintiff himself being inexperienced in the work, * * • and by reason there- of was ignorant of the danger," etc., is not objectionable as assuming that plaintiff was inexperienced, especially where the question of his experience was expressly submitted to the jury in the preceding instruction. Texas Mexican Ry. Co. v. Douglas, 73 Tex. 325, 11 S. W. 333. An instruction that if the jury believe from the evidence that plaintiff was in actual possession of the land, and claimed title thereto by virtue of a certain deed of parti- tion, and defendants entered and took possession of part of it within the 15 years next preceding commencement of the action, they shall find for plain- tiff, does not assume adversarjr pes- § 75 INSTEUCTIONS TO JURIES liH the application of which is called for by facts which the Jury may find from the evidence, without saying or in any way indicating an opinion that they have been proved, it cannot be said that the existence of any fact has been assumed." An instruction, however, which begins properly by leaving certain questions to the jury, but in the body thereof contains a direct statement with reference to the existence of such facts, is improper. "^^ As indicated by the statement of the general rule, the assump- tion of the existence of immaterial facts is not error which will work a reversal.^* § 76. Specific applications of rule in civil cases , This rule has been applied to a great variety of facts. Thus it is error to assume on conflicting evidence that a certain relation ex- isted,^" the existence of a contract,*^ that a contract made was with a certain person,** that a contract was completely executed and delivered,** that an agreement was not in writing,** that a deed or patent was executed,** that a signature to a note or bond was gen- uine,*® that a grantor in a deed intended to deliver it,*' that a deed was accepted,** that the alleged consideration for a note was re- ceived by the maker,*' that an application for an insurancie policy was annexed to it,*" that a contract of sale was made,*^ that goods session in plaintiff of the land claim- ■ 22 Gaines v. McAlister, 29 S. E. 844, ing under the deed of partition. 122 N. C. 340. Whealton & Wisherd v. Doughty, 72 23 Rutherford v. Holbert, 142 P. S. B. 112, 112 Va. 649. 1099, 42 Okl. 735, L. R. A. 1915B, 221. 17 Olson V. Swift & Co., 182 S. W. 21 Glenn v. Rogers, 3 Md. 312. 903, 122 Ark. 611; State v. Willis, 132 25 Fitzgerald v. GofC, 99 Ind. 28; P. 962, 24 Idaho, 252 ; State v. Wright, HoUoran v. Meisel, 87 Va. 398, 13 S. 85 P. 493, 12 Idaho, 212 ; State v. Tay- E. 33. lor, 50 S. B. 247, 57 W. Va. 228. 28 Black v. Miller, 138 N. W. 535, 18 Lichter y. Aurord, E. & C. K. Co., 158 Iowa, 293 ; State ex rel. Welch v. 179 111. App. 216. Morrison, 148 S. W. 907, 244 Mo. 193. i» Pecos & N. T. Ey. Co. v. Trower, 27 Walker v. Nix, 64 S. W. 73, 25 130 S. W. 588, 61 Tex. Civ. App. 53. Tex. Civ. App. 596. 20 Schroeder v. Brown & McCabe, 28 Haney v. Marshall, 9 Md. 194. 116 P. 335, 59 Or. 181. 29 Halsey v. Bell (Tex. Civ. App.) 21 Ala. Green v. Southern States 62 S. W. 1088. Lumber Co., 37 So. 670, 141 Ala. 680. soMonJeau v. Metropolitan Life III, Nolan V. O' Sullivan, 148 111. Ins. Co., 94 N. E. 302,, 208 Mass. 1. App. 316. 81 Ala. Atlantic Coast Line R. Co. Md. BUicott V. Turner, 4 Md. 476. v. Dahlberg Brokerage Co., 54 So. S. C. Frasier v. Charleston & W. 168, 170 Ala. 617. C. Ry. Co., 52 S. E. 964, 73 S. C. 140. Ark. L. & A. ScharfC DistUling Tex. Missouri, K. & T. Ry. Co. of Co. v. Dennis, 168 S. W. 141, 113 Ark Texas v. De Bord, 53 S. W. 587, 21 221; Watklns v. Curry, 147 S. W. Tex. Civ. App. 691 ; McCallon v. Co- 43, 103 Ark. 414, 40 L. R. A. (N. S.) hen (Civ. App.) 39 S. W. 973. 967. 145 ASSUMPTIONS AS TO EXISTENCE OP FACTS §76 sold were delivered to the purchaser,** that the purchaser of goods accepted them,** that the relation of passenger and carrier existed,** that the relation of master and servant, or of -principal and agent, existed,*® that there was an agreement authorizing an attorney to commence suit on behalf of another,*® that the relation of partner- ship existed between certain persons,*'' that the relation of lan.dlord and tenant existed,** that the relation of debtor and creditor ex- isted,*® that a note was altered,*" that a contract was still in force,*^ that the relation of master and servant was terminated,*" that the nature or terms of a contract were of a certain kind or descrip- tion,** that a certain transaction constituted a loan, and not a dis- loxra. Case Y Burrows, 52 Iowa, 146, 2 N. W. 1045. Md. Gaither v. Martin, 3 Md. 146. Mo. Moody V. Cowherd (App.) 199 S. "W. 586. Tex. I/andman v. Glover (Civ. App.) 25 S. W. 994. 32 Wood V. Tomlinson, 53 Cal. 720; Jaehnlg & Peoples v. Fried, 85 A. 321, 83 N. J. Law, 361. 33 Eoss Attley Lumber Co. v. Co- lumbia Hardwood Lumber Co., 200 111. App. 65. 3* Georgia K. & Banking Co. v. Radford, 85 S. E. 1006, 144 Ga. 22; Carroll v. Chicago City Ry. Co., 180 111. App. 309 ; Wise v. Columbia Ry., Gas & Electric Co., 77 S. E. 924, 94 S. C. 254; Northern Texas Traction Co. V. Nicholson (Civ. App.) 188 S. W. 1028; Dallas Rapid Transit Co. v. Payne, 82 S. W. 649, 98 Tex. 211, re- versing judgment Dallas Rapid Trans- it Ry. Co. V. Payne (Civ. App.) 78 S. W. 1085. SB Ga. Vaughn v. Miller, 76 Ga. 712. Ky. Castleman v. Rustenholtz, 140 S. W. 170, 145 Ky. 146. Md. Baltimore Consol. Ry. Co. V. State, 46 A. 1000, 91 Md. 506. Micli. American Seed Co. v. Cole, 140 N. W. 62^ 174 Mich. 42. Or. Salomon v. Cress, 22 Or. 177, 29 P. 439. Tena. Roper v. Stone, Cooke, 497. Tex. Ft. Worth & D. C. Ry. Co. v. Lynch (Civ. App.) 136 S. W. 580 ; Mes- ser V. Walton, 92 S. W. 1037, 42 Tex. Civ. App. 488; East Texas Fire Ins. Co. V. Brown, 82 Tex. 631, 18 S. W. 713. INST.TO JUEIBS— 10 88 Briseno v. International & G. N. E. Co. (Tex. Civ. App.) 81 S. W. 579. ST Bond V. Nave, 62 Ind. 505 ; Bo- wen V. Epperson, 118 S. W. 528, 136 Mo. App. 571 ; Wright v. Fonda, 44 Mo. App. 634; Lawrence v. Westlake, 73 P. 119, 28 Mont. 503; .Peters Branch of International Shoe Co. v. Blake (Okl.) 176 P. 892. 38 Braytbn v. Boomer, 107 N. W. 1099, 131 Iowa, 28. 3 9 Cropper v. Pittman, 13 Md. 190; Lyle v. Mclnnis (Miss.) 17 So. 510; Metcalfe v. Lowenstein, 81 S. W. 362, 35 Tex. Civ.' App. 619. 40 Lanier v. Clarke, 133 S. W. 1093, 63 Tex. Civ. App. 266. 41 Stalleto V. Plumley & Sargent, 85 A. 975, 86 Vt. 444. 42 Derby Cycle Co. v. White, 64 111. App. 245. 43 Ala. Wellman v. Jones, 27 So. 416, 124 Ala. 580. Arh. Allen-West Commission Co. V. Hudgins & Bro., 86 S. W. 289, 74 Ark. 468. ' Conn. Plumb v. Curtis, 66 Conn. 154, 33 A. 998. Ga. Bashinski v. J. H. c& W. W. Williams Co., 90 S. B. 223, 18 Ga. App. 646. 111. Adams v. Neu, 108 111. App. 50. Ind. Kepler v. Jessup; 37 N. B. 655, 11 Ind. App. 241. Ky. Locke & Ellison v. Lyon Medi- cine Co., 84 S. W. 807, 27 Ky. Law Rep. 1. , Mass. Nonantum Worsted Co. v. North Adams Mfg. Co., 156 Mass. 331, 31 N. B. 293. Mo. Galamba v. Harrlsonville Pump & Foundry Co. (App.) 191 S. §76 INSTRUCTIONS TO J0RIES 146 count," that a contract with a carrier was a written one, or con- tained certain provisions,*'* that a contract was performed,*® that certain acts constituted a material deviation from the terms of a contract,*' that a party to a contract refused to permit the other to proceed under it,** that a heating plant was sufficient,** that there was a proper demand of performance,®" that a claim for damages for delay in carrying out a contract was waived,®^ that certain debts or notes . were paid,** that certain facts constitute negligence,®* to assume facts bearing on question of whether due care was exercised W. 1084: Bowen v. Buckner (App.) 183 S. W. 704. Pa. Hershey v. Hershey, 8 Serg. & R. 333. Tex. Grigg v. Jones (Civ. App.) 26 S. W. 885. Vt. Leahey v. Allen, 47 Vt. 463. ** Sallee v. Security Bank & Trust Co., 177 S. W. 1133, 119 Ark. 484. *5 Evansville & T. H. R. Co, v. Mc- Klnney, 73 N. E. 148, 34 Ind. App. 402; Same v. Kevekordes, 73 N. E. 1135, 35 Ind. App. T06 ; San Antonio & A. P. Ry. Co. V. Grady (Tex. Civ. App.) 171 S. W. 1019; Gulf, C. & S. F. Ry. Co. V. Batte (Tex. Civ. App.) 94 S. W. 345. 48 Bates V. Harte, 26 So. 898, 124 Ala. 427, 82 Am. St. Rep. 186; Gray- ling Lumber Co. v. Hemingway, 194 S. W. 508, 128 Ark. 535. " Alexander v. Smith, 57 So. 104, 3 Ala. App. 501. *8 McDonough V. Almy, 105 N. B. 1012, 218 Mass. 409, Ann. Cas. 1915D, 855. <» Morse v. Tochterman, 132 P. 1055, 21 Cal. App. 726. 50 Steagall v. MeKellar, 20 Tex. 265. 01 Fike V. Stratton, 56 So. 929, 174 Ala. 541. 02 Chipps V. Buxton, 109 111. App. 88 ; Schultz v. Schultz, 71 N. W. 854, 113 Mich. 502. 03 Ala. Birmingham Ry., Light & Power Co. v. Donaldson, 68 So. 596, 14 Ala. App. 160; Western Steel Car & Foundry Co. v. Cunningham, 48 So. 109, 158 Ala. 369. Ark. Western Coal & Mining Co. V. Jones, 87 S. W. 440, 75 Ark. 76. Ga, Western & A. R. Co. v. Casteel, 75 S. E. 609, 138 6a. 579. ni. Weil V. Chicago City Ry. Co., 182 111. App. 109; Lewman v. Dan- ville St. Ry. & Light Co., 161 111. App. 582 ; Nelson v. Knetzger, 109 111. App. 296 ; Anderson v. Moore, 108 111. App. 106 ; Beidler v. King, 108 111. App. 23, .ludgment affirmed 70 N. E. 763, 209 111. 302, 101 Am. St. Rep. 246 ; Mobile & O. R. Co. V. Healy, lOO 111. App. 586; La Salle County Carbon Coal Co. V. Eastman, 99 111. App. 495 ; City of La Salle v. Thorndike, 7 111. App. 282. Ind. Indiana Union Traction Co. V. Reynolds, 95 N. E. 584, 176 Ind. 263. Iowa. Bauer v. City of Dubuque, 98 N. W. 355, 122 Iowa, 500. Md. City of Baltimore v. State, 103 A. 426, 132 Md. 113. Mo. Lafever v. Pryor (App.) 190 S. W. 644 ; Priebe v. Crandall (App.) 187 S. W. 605; Stanley v. Chicago, M. & St P. Ry. Co., 87 S. W. 112, 112 Mo. App. 601; Baker v. City of In- dependence, 81 S. W. 501, 106 Mo. App. 507; Van Natta v. People's St. Ry., Electric Light & Power Co., 133 Mo. 13, 34 S. W. 505. Op. Delovage v. Old Oregon Creamery Co., 147 P. 392, 76 Or. 430, motion to retax costs denied 149 P. 317, 76 Or. 430; Salmi v. Columbia & N. R. R. Co., 146 P. 819, 75 Or. 200, L. R. A. 1915D, 834. S. C. Lundy V. Southern Bell Tel- ephone & Telegraph Co., 72 S. E. 558, 90 S. C. 25; Bodie v. Charlestoa & W. C. Ry. Co., 44 S. E. 943, 66 S. C. 302. Tex, Magee v. Cavins (Civ. App.) 197 S. W. 1015; Panhandle & S. F. Ry. Co. V. Wright-Hemdon Co. (Civ. App.) 195 S. W. 216; Panhandle & S. F. Ry. Co. V. Vaughn (Civ. App.) 191 S. W. 142 ; Houston & T. C. R. Co. v. Walker (Civ. App.) 167 S. W. 199, judgment reversed 173 S. W. 208, 107 Tex. 241 ; Chicago, R. I. & G. Ry. Co. 147 ASSUMPTIONS AS TO EXISTENCE OF FACTS §76 by a carrier to avoid injury to a passenger,^ to assume facts bear- ing on question whether a railroad exercised due care to prevent accidents®^ that certain facts show negligence on the part of a mas- ter towards a servant,^® that certain facts constitute contributory negligence," that certain facts show due care and caution or the V. Oliver (Civ. App.) 159 S. W. 853; Missouri, K. & T. Ry. Co. of Texas V. Williams, 133 S. W. 499, 63 Tex. Civ. App. 368; Texas & P. Ry. Co. V. Felker, 93 S; W. 477, 42 Tex. Civ. App. 256 ; Houston & T. C. R. Co. v. Burns, 90 S. "W. 688, 41 Tex. Civ. App. 83 ; Missouri, K. & T. Ry. Co. of Texas V. Smith (Civ. App.) 82 S. W. 787; Missouri, K. & T. Ry. Co. of Texas v. Wood (Civ. App.) 81 S. W. 1187 ; St Louis Southvrestern Ry. Co. of Texas V. Gentry (Civ. App.) 74 S. W. 607. Wash, Atherton v. Tacoma Ry. & Power Co., 71 P. 39, 30 Wash. 395. W. Va. Culp V. Virginia Ry. Co., 87 S. E. 187, 77 W. Va. 125. Si I/arson v. Chicago, M. & P. S. Ry. Co., 141 N. W. 353, 31 S. D. 512; Missouri, K. & T. Ry. C!o. of Texas v. Wolf, 89 S. W. 778, 40 Tex. Civ. App. 381; St. Louis S. W. Ry. Co. v. Ball, 66 S. W. 879, 28 Tex. Civ. App. 287; Rapid Transit Ry. Co. v. Lusk (Tex. Civ. App.) 66 S. W. 799 ; Dallas & O. C. El. Ry. Co. V. Harvey (Tex. Civ. App.) 27 S. W. 423. BB Cleveland, C, C. & St. L. Ry. Co. v. Gossett, 87 N. E. 723, 172 Ind. 525; Maryland, D. & V. Ry. Co. v. Brown, 71 A. 1005, 109 Md. 304; Cleveland, O. C. & St. L. Ry. v. Sivey, 2i Ohio Cir. Ct. R. 248; Missouri, K. & T. Ry. Co. of Texas v. Smith, 133 S. W. 482, 63 Tex. Civ. App. 510 ; St. Louis & S. W. Ry. Co. of Texas v. Gill (Tex. Civ. App.) 55 S. W. 386. B8I11. William Graver Tank Works v. McGee, 58 111. App. 250. Ky. West Kentucky Coal Co. v. • Kelley, 159 S. W. 1152, 155 Ky. 552. Mo. Haire v. Sehaff (App.) 190 S. W. 56; Dority v. St. Louis & S. F. R. Co., 174 S. W. 209, 188 Mo. App. 365 ; Wease v. Fayette R. Plumb Tool Co., 173 S. W. 79, 187 Mo. App. 716; Burrows v. Likes, 166 S. W. 643, 180 Mo. App. 447; Lukamiski v. Ameri- can Steel Foundries, 142 S. W. 1093, 162 Mo. App. 631; Abbott V. Marion Min. Co., 87 S. W. 110, 112 Mo. App. 550 ; Sinberg v. Falk Co., 98 Mo. App. 546, 72 S. W. 947 ; Linn v. Massillon Bridge Co., 78 Mo. App. 111. N, D. Lang V. Bailes, 125 N. W. 891, 19 N. D. 582. S. C. Hunter v. I>. W. Alderman & Sons Co., 71 S. E. 1082, 89 S. C. 502. Tex. Houston Belt & Terminal Ry. Co. V. Montello (Civ. App.) 165 S. W. 540; St. Louis Southwestern Ry. Co. of Texas v. Tune (Civ. App.) 147 S. W. 364 ; Phillips v. St. Louis South- western Ry. Co. of Texas (Civ. App.) 136 S. W. 542; Chicago, R. I. & G. Ry. Co. V. De Bord, 132 S. W. 845, 62 Tex. Civ. App. 302; Chicago, B. I. & M. Ry. Co. V. Harton, 81 S. W. 1236, 36 Tex. Civ. App. 475; Harwell - V. Southern Furniture Co. (Civ. App.) 75 S. W. 52, motion to dismiss denied. Id. 888. BT Ala. Montgomery Light & Trac- tion Co. V. Harris, 72 So. 545, 197 Ala. 236; Montgomery St. Ry. Co. v. Shanks, 37 So. 166, 139 Ala. 489. 111. Hartrieh v. Hawes, 67 N. B. 13, 202 111. 334, affirming judgment 103 111. App. 433; Vittum v. Drury, 161 111. App. 603 ; Elwood v. Chicago City Ry. Co., 90 111. App. 397. Ind. Virgin v. Lake Erie & W. R. Co., 101 N. E. 500, 55 Ind. App. 216; Teagarden v. McLaughlin, 86 Ind. 476, 44 Am. Rep. 332. Ky. Louisville, C. & L. B. Co. v. Goetz's Adm'x, 79 Ky. 442, 42 Am. Rep. 227. SSass. Knight v. Overman Wheel Co., 54 N. E. 890, 174 Mass. 455. Mo. Lumb V. Forney (App.) 190 S. W. 988; Tanchof v. Metropolitan St. Ry. Co. (App.) 177 S. W. 813. Tex. Wiliams v. Galveston, H. & S. A. Ry. Co. (Civ. App.) 196 S. W. 309; Abilene Gas & Electric Co. v. Thomas (Civ. App.) 194 S. W. 1016; Missouri, K. & T. Ry. Co. of Texas v. Cardwell (Civ. App.) 187 S. W. 1073; San Antonio, U. & G. B. Co. v. Gal- 76 INSTRUCTIONS TO JURIES 148 want of negligenee,*** that a servant appreciated and assumed cer- tain risks,^* that defects in a sidewalk were obvious,** that one walking on a railroad track was a trespasser ,®i that an engine was properly equipped to prevent the escape of sparks,®* that certain acts or places or positions or agencies are dangerous/* that a struc- ture was a scaffold,** that certain objects are not such as to fright- breath (Civ. App.) 185 S. W. 901; Texas Midland R. B. v. Nelson (Oiv. App.) 161 S. W. 1088; St. Louis Southwestern Ey. Co. of Texas v. Tarver (Civ. App.) 150 S. W. 958; Ft. Worth & D. 0. Ry. Co. v. Broom- head (Civ. App.) 140 S. W. 820; Chicago, R. I. & G. Ry. Co. v. Knox (Civ. App.) 138 S. W. 224; Gulf, O. & S. P. Ey. Co. V. Brooks, 132 S. W. 95, 63 Tex. Civ. App. 281; Inter- national & G. N. R. Co. V. Brice (Civ. App.) 95 S. W. 660, judgment revers- ed 97 S. W. 461, 100 Tex. 203. Vt. Doyle V. Melendy, 75 A. 881, 83 Vt. 339. 5 8 U. S. (C. C. A. Mo.) Ameri- can Car & Foundry Co. v. Barry, 195 F. 919, 115 C. O. A. 607. Ala. Alabama Great Southern R. Co. V. Demoville, 52 So. 406, 167 Ala. 292. Ark. St. Iiouls Southwestern Ry. Co. V. Adams, 135 S. W. 814, 98 Ark. 222. Oal. Williams v. Pacific Electric Ry. Co., 170 P. 423, 177 Cal. 235. 111. Beeson v. Vandalla R. Co., 161 lU. App. 267; Chicago Union Traction Co. v. Grommes, 110 111. App. 113 ; West Chicago St. R. Co. v. Cal- low, 102 111. App. 328; De Kalb & G. W. Ry. Co. V. Rowell, 74 111. App. 191. Ind. Rump v. Woods, 98 N. H. 369, 50 Ind. App. 847; Indianapolis St. Ey. Co. V. O'Donnell, 78 N. B. 163, 35 Ind. App. 312, rehearing denied 74 N. E. 253, 35 Ind. App. 812. Md. Wolf V. Shriver, 72 A. 411, 109 Md. 295. Mo. Lagarce v. Missouri Pac. Ry. Co., 166 S. W. 1063, 183 Mo. App. 70. N. Y. )Schwartz v. Metropolitan St. Ry. Co., 78 N. Y. S. 886, 38 Misc. Rep. 795. Or. Richardson v. Klamath S. S. Co., 126 P. 24, 62 Or. 490. Pa. Schmidt v. McGill, 120 Pa. 405, 14 A. 383, 6 Am. St. Rep. 713. S. C. Kirby v. Southern Ry., 41 S. E. 765, 63 S. C. 494. Tex. International & G. N. R. Co. V. Garcia, 117 S. W. 206, 54 Tex. Civ. App. 59 ; Thompson v. Galveston, H. & S. A. Ry. Co., 106 S. W. 910, 48 Tex. Civ. App. 284. IVash. Hall v. West & Slade Mill Co., 81 P. 915, 39 Wash. 447, 4 Ann. Cas. 587. B9 Nix V. Brunswick-Balke-CoUen- der Co., 191 111. App. 503; Cook v. Urban (Tex. Oiv. App.) 167 S. W. 251. ■ 6 Waters v. Kansas City, 68 S. W. 366, 94 Mo. App. 413. «i Houston & T. O. R. Co. v. O'Don- nell (Tex. Civ. App.) 90 S. W. 886, judgment reversed 92 S. W. 409, 99 Tex. 636. 62 Alabama Great Southern R. Co. V. Sanders, 40 So. 402, 145 Ala. 449 ; Alabama Great Southern R. Co. v. Clark, 39 So. 816, 145 Ala. 459. esAla. Prattville Cotton Mills Co. V. McKinney, 59 So. 498, 178 Ala. 554. 111. Sugar Creek Min. Co. v. Pet- erson, 52 N. E. 475, 177 111. 324, re- versing judgment 75 111. App. 631; Hughes V. Eldorado Coal & Mining Co., 197 111. App. 259; Wilson v. Danville Collieries Coal Co., 171 111. App. 65; Odett v. Chicago City Ry. Co., 166 111. App. 270. Ind. Indiana Union Traction Co. V. Sullivan, 101 N. E. 401, 53 Ind. App. 239. Mo. Ganey v. Kansas City, 168 S. W. 619, 259 Mo. 654. S. O. Lowrimore v. Palmer Mfg. Co., 38 S. E. 480, 60 S. C. 153. Was^. Walters v. City of Seat- tle, 167 P. 124, 97 Wash. 657. Wyo. Acme Cement Plaster Co. V. Westman, 122 P. 89, 20 Wyo. 143. e* Conger v. Wiggins, 57 A. 341, 208 Pa. 122. H9 ASSUMPTIONS AS TO EXISTENCE OF FACTS §76 en a mule of ordinary gentleness,®® that there was fraud in a certain transaction, or that certain representations were fraudulent,*® that certain false representations were material,®'' that one possessed knowledge or opportunities for knowledge of certain matters in time to govern his action,®* that certain persons or things were identical,®* that a will was signed,'* that the children of a decedent were the natural objects of his bounty, ''• that certain persons were the heirs of a decedent,'* that there was unreasonable delay on the part of a bankrupt in endeavoring to obtain his discharge,'* that a ' receipt expressly acknowledged payment of a bill,'* to assume the fact of nonpayment,'® that testimony given on a former trial has been accurately reproduced,'* that a copy was a correct copy," that a certain document was an ancient instrument,'* that a certain conversation took place between the parties,'® that certain items 8 6 Western Ry. of Alabama v, Cleghom, 39 So. 133, 143 Ala. 392. 88 Montgomery-Moore Mfg. Co. v, Leeth, 56 So. 770, 2 Ala. App. 324 Gardner v. Boothe, 31 Ala. 186. Ga. Chambers v. Gardner, 89 Ga 270, 15 S. E. 312. 111. American Ins. Co. v. Craw ford, 89 111. 62 ; Clark v. Lee, 205 111, App. 1. Mich. Gordon v. Alexander, SON- W. 978, 122 Mich. 107. Mo. State v. Mason, 96 Mo. 559, 10 S. W. 179. Tex. St. Louis, S. F. & T. Ry. Co. V. Bowles, 131 S. W. 1176, 63 Tex. Civ. App. 23. 8 7 Weil V. Fineran, 93 S. W. 568, 78 Ark. 87. 8 8 Aripeka Sawmills v. Georgia Supply Co., 84 S. B. 455, 143 Ga. 210 ; Howell V. Lawrenceville Mfg. Co., 31 Ga. 663. 111. Rosinski v. Burton, 163 111. App. 162. Md. Annapolis Gas & Electric Light Co. V. Fredericks, 72 A. 534, 109 Md. 595. Mich. Rouse V. Michigan United Rys. Co., 129 N. W. 719, 164 Mich. 475; American Oushman Tel. Co. v. Noble, 98 Mich. 67, 56 N. W. 1100. Mo. I«gg V. Metropolitan St. Ry. Co., 133 S. W. 1190, 154 Mo. App. 290. Pa. Podona v. Lehigh Valley Coal Po., 91 A. 920, 245 Pa. 501. B. I. Blake v. Rhode Island Co., 78 A. 834, 32 R. I. 213, Ann. Cas. 1912D, 852. Tex. Wichita Falls Motor Co. v. Bridge (Civ. App.) 158 S. W. 1161; Goodbar v. City Nat. Bank, 78 Tex. 461, 14 S. W. 851. Wash. Harkins v. J. A. Veness Lumber Co., 124 P. 492, 69 Wash, 196. 8» Dunaway & Lambert v. Stick ney, 69 So. 232, 13 Ala. App. 645 Witherell v. Maine Ins. Co., 49 Me, 200; Bellis v. Phillips, 28 N. J. Law, 125. 10 Whitsett V. Belue, 54 So. 677. H2 Ala. 256; O'Day v. Crabb, 109 N. E. 724, 269 111. 123. 71 Jackson v. Folsom, 118 N. E. 955, 187 Ind. 257. 7 2 Woolfolk V. Ashby, 2 Mete. (Ky.) 288. 73 Huntington v. Saunders, 166 Mass. 92, 43 N. E. 1035. 7* Swift & CO. V. Mutter, 115 lU. App. 374. 7 5 Rouden v. Heisler's Estate (Mo. App.) 219 S. W. 691. 7 8 Carter v. Marshall, 72 111. 609. , 77 Louisville & N. R. Co. v. Shep- herd, 61 So. 14, 7 Ala. App. 496. 7 8Daugharty v. S. L. & C. C. Drawdy, 68 S. E. 472, 134 Ga. 650. 711 Vroman v. Rogers (City Ct. Brook.) 5 N. Y. S. 426, judgment af- firmed 132 N. T. 167, 30 N. E. 388; Gurney v. Smithson, 20 N. Y. Super. Ot. 396. §76 INSTEUCTIONS TO JURIES 150^ constituted elements of recovery.*" that a personal injury was per- manent,*^ that a carrier had notice of special damages which might accrvie to a shipper from delay in transportation,** that a plaintiff was entitled to substantial damages,** that plaintiff could have pre- vented the damages for which he sued,** to assume facts relating to value,*^ that certain facts diminished the value of land or other property,*® that certain efifects were due to certain causes,*' that 111. App. 520; Blow v. Joyner, 72 S. E. 319, 156 ;sr. O. 140. 8* King Land & Improvement Co- V. Bowen, 61 So. 22, 7 Ala. App. 462. 85 Idaho. Drumteller v. Dayton,. 160 P. 944, 29 Idaho, 552. 111. Staver Carriage Co. v. Amer- ican & British Mfg. Co., 188 111. App. 634. N. Y, Schoolman v. Ratkowslcy (Sup.) 141 N. Y. S. 527; MeNulty v. Pickelmann (Sup.) 141 N. Y. S. 521; Spencer v. Hardin, 134 N. Y. S. 373,- 149 App. Div. 667. Tex. Houston & T. C. R. Co. v. Crowder (dv. App.) 152 S. W. 183; Gulf, C. & S. F. Ky.- Co. v. Ooulter- (Civ. App.) 139 S. W. 16. se New York, C. & St. L. R. Co. v. Rhodes, 86 N. E. 840, 171 Ind. 521, 24 L. R. A. (N. S.) 1225 ; Norris v. Laws, 64 S. E. 499, 150 N. C. 599 ; Missouri, K. S: T. R. Co. of Texas v. Light, 117" S. W. 1058, 54 Tex. Civ. App. 481. 87 Ala. Sloss-Sheffleld Steel & Iron Co. V. Smith (Sup.) 40 So. 91. ni. Illinois, I. & iM. Ry. Co. v. Easterbrook, 71 N. E. 1116, 211 IIU. 624; Dawson v. Allen, 191 111. App. 399; Security Ins. Co. v. Slack, 183 111. App. 579; Browning v. Jones, 52" 111. App. 597. Ind. Baltimore & O. S. W. Ry. Co. V. Young, 54 N. E. 791, 153 Ind. 163. IVUnn. McGrath v. Great North- ern Ry. Co., 78 N. W. 972, 76 Minn. 146. Mo. Fife V. Chicago & A. R. Co.,. 161 S. W. 300, 174 Mo. App. 655. N. Y. Link v. Sheldon, 136 N. Y. 1, 32 N. E. 696, affirming 64 Hlun, 632, 18 N. Y. S. 815. N. C. Brewster v. Corporation of Elizabeth City, 54 S. E, 784, 142 N.. C. 9; Peoples v. North Carolina R. Co., 49 S. E. 87, 137 N. C. 96. Tex. Trinity & B. V. Ey. Co. v.. 80 IT. S. Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545, 7 S. Ct. 1, 30 L. Ed. 257. m. Barrelett v. Bellgard, 71 111. 280; Todd v. Chicago City Ry. Co., 197 111. App. 544. Iowa. Sample v. Rand, 84 N. W. 683, 112 Iowa, 616. Ky. McGrew's Ex'r v. O'Donnell, 92 S. W. 301, 28 Ky. Law Rep. 1366. Md. City of Baltimore v. M. A. Talbott & Co., 87 A. 941, 120 Md. 354. Minni. Conehan v. Crosby, 15 Minn. 13 (Gil. 1). Miss. Lopez v. Jackson, 32 So. 117, 80 MJiss. 684. Mo. Van Zandt v. St. Louis Wholesale Grocer Co., 190 S. W. 1050, 196 Mo. App. 640; Evans v. City of Joplin, 76 Mo. App. 20 ; Wal- ters V. Cox, 67 Mo. App. 299 ; Fatten V. Penquite, 32 Mo. App. 595. N. Y. McCormick v. MeCafCray, 55 N. Y. S. 574, 25 Misc. Rep. 786; Catlin V. Pond, 101 N. Y. 649, 5 N. E. 41. Ohio. Weybright v. Fleming, 40 Ohio St. 52. Tex. San Antonio & A. P. Ry. Co. V. Shankle & Lane (Civ. App.) 183 S. W. 115; Waterman Lumber & Supply Co. V. Holmes (dv. App.) 161 S. W. 70; UUman v. Devereux (Civ. App.) 93 S. W. 472; St. Louis S. W. Ry. Co. V. MeCuUough (Civ. App.) 33 S. W. 285; Houston City St. Ry. Co. V. Artusey (Civ. App.) 31 S. W. 319; Wilkinson v. Johnson, 83 Tex. 392, 18 S. W. 746. 81 Pekin Stave & Mfg. Co. v. Ram- ey, 158 S. W. 156, 108 Ark. 483. 82 Atchison, T. & S. F. Ry. Co. v. Keel Grain Co. (Tex. Civ. App.) 132 S. W. 837. 83Dady v. Condi t, 58 N. E. 900, 188 111. 234, reversing judgment 87 111. App. 250; Judd v. Isenhart, 93 151 ASSUMPTIONS AS TO EXISTENCE OF FACTS §77 certain dangerous conditions were due to a latent defect,** to as- sume facts in relation to ownership,** that the location of a bound- ary line was correct,*" that a survey was made,»i that possession of land was of a certain character,** that the possession of property was in a certain person,** that an absence from land occupied as a homestead was temporary,** and to assume facts bearing on the credibility of witnesses.** § 77. Specific applications of rule in criminal cases In criminal cases the above rule has been applied to instructions assuming that a crime was proved,*® that defendant committed the Gregory (Civ. App.) 142 S. W. 656; Same v. Burke, Id. 658; Hunt v. Johnson (Civ. App.) 129 S. W. 879. 88 Pierce v. Decatur Coal Co., 151 lU. App. 47. 89 Ala. Louisville & N. R. Co. v. Christian Moerlein Brewing Co., 43 So. 723, 150 Ala. 390 ; Dorian v. Wes- tervitch, 37 So. 382, 140 Ala. 283, 103 Am. St. Rep. 35. Cal. Jolly v. McCoy, 172 P. 618, 36 Cal. App. 479; Dean v. Ross, 105 Cal. 227, 38 P. 912. HI. Allmendinger v. McHie, 59 N. E. 517, 189 111. 308. Ky. Bailey v. Tygart VaUey Iron Co., 10 S. W. 234. Me. Whipple v. Wing, 39 Me. 424. Miss. American Express Co. v. Jennings, 38 So. 374, 86 Miss. 329, 109 Am. St. Rep. 708. Mo. Nichols V. Tallman, 189 S. W. 1184; Warrington v. Bird, 151 S. W. 754, 168 Mo. App. 385; Benne v. Mil- ler, 50 S. W. 824, 149 Mo. 228; Wil- kerson v. Eilers, 114 Mo. 245, 21 S. W. 514. S. C. Hodge V. Hodge, 34 S. E. 517. 56 S. C. 263. Tex. »First Nat. Bank v. Thomas - (av. App.) 118 S. W. 221; Lake v. Copeland, 72 S. W. 99, 31 Tex. ClV. App. 358. W. Va, Union Trust & Deposit Co. V. Paulhamus, 81 S. E. 547, 74 W. Va. 1. so Smith V. Bachus, 78 So. 888, 201 Ala. 534; Paschall v. Brown, 147 S. W. 561, 105 Tex. 247, reversing judg- ment (Civ. App.) 133 S. W. 509 ; Luc- kie V. Schneider (Tex. Civ. App.) 57 S. W. 690. 81 Goff V. Cougle, 76 N. W. 489, 118 Mich. 307, 42 L. R. A. 161. »2 Anthony v. Seed, 40 So. 577, 146 Ala. 193 ; Rabbermann v. Carroll, 69 N. E. 759, 207 111. 253; Neppach v. Jordan, 15 Or. 308, 14 P. 353. »s Casper v. Geek, 185 111. App. 155. »* White V. Epperson, 73 S. W. 851, 32 Tex. Civ. App. 162. »5 U. S. (C. C. A. Mass.) American Agricultural Chemical Co. v. Hogan, 213 F. 416, 130 C. C. A. 52. Ala. Worthy v. State, 44 So. 535, 152 Ala. 49; Crittenden v. State, 32 So. 273, 134 Ala. 145. Ark. Spencer v. State, 194 S. W. 863, 128 Ark. 452. Ky. McKinney v. Commonwealth, 82 S. W. 263, 26 Ky. Law Rep. 565. Mich. People V. Pox, 105 N. W. 1111, 142 Mich. 528. Mo. Freeman v. Metropolitan St. Ry. Co., 68 S. W. 1057, 95 Mo. App. 94. Pa. Commonwealth v. Bober, 59 Pa. Super. Ct. 573. Test. Ballard v. State, 160 S. W. 716, 71 Tex. Cr. R. 587; Green v. State, 98 S. W. 1059, 49 Tex. Cr. R. 645. 9 6 Merino v. State, 141 P. 710, 16 Ariz. 132; People v. Roberts, 55 P. 137, 122 Cal. 377; State v. Lee, 182 S. W. 972, 272 Mo. 121. Imstrnctions not improper as assuming the commission of a crime. Since "homicide" means the killing of any human being an in- struction speaking of the killing as a homicide is not error. Griggs v. State, 86 S. E. 726, 17 Ga. App. 301. Where, in a murder case, the court charged that it was contended by ac- cused that he was elsewhere at the time of the commission of the homi- cide, and consequently that it was im- §77 INSTRUCTIONS TO JUEIES 152' act charged as a crime,*' that the intent of defendant was criminal,, or the reverse,^* that the offense charged was committed in a cer- tain place,*® that the offense was committed in a certain manner, or that certain articles were used in. its commission,^ that defend- ant had a good character,* that evidence incriminating defendant existed,* that defendant fled,* that a witness was an accomplice,^ that defendant had committed other related offenses,® that defend- ant had confessed or made admissions,' and to instructions assum- ing facts bearing on issue of self-defense.* possible for him to have committed it, that the contention constituted an alibi, which if established was a per- fect refutation of any crime charged, and, being interposed by accused as proof that he was not guilty, It be- came the duty of the jury to pass up- on the question whether accused was present at the scene of the homicide at the time of the commission thereof, it was held that the charge was not objectionable as assuming the proof of the crime charged against accused, on the hypothesis that "homicide" is synonymous with "crime," since the killing of a human being under any circumstances constitutes homicide, but whether a homicide Is a crime depends on the circumstances under which it is committed. People v. Mar Gin Suie, 103 P. 951, 11 Gal. App. 42. o^Lujan v. State, 141 P. 706, 16 Ariz. 123. 8 Morris v. State, 41 So. 274, 146 Ala. 66; Willis v. State, 33 So. 226, 134 Ala. 429; Wimberly v. State, 77 S. B. 879, 12 Ga. App. 540 ; Kennison V. State, 115 N. W. 289, 80 Neb. 688 ; Young V. State, 151 S. W. 1046, 68 Tex. Or. R. 580. 99 Cox V. State, 60 S. W. 27, 68 Ark. 462 ; Commonwealth v. Cooper, 27 Pa. Super. Ct. 8. 1 Hall V. State, 65 So. 427, 11 Ala. App. 95 : Sloan v. State, 70 So. 23, 70 Fla, 216; Smothers v. State, 59 So. 900, 64 Fla. 459; People v. Blssett, 92 N. E. 949, 246 111. 516; State v. Harris, 108 S. W. 28, 209 Mo. 423. 2Axelrod v. State, 60 So. 959, 7 Ala. App. 61 ; Sadler v. State, 51 So. 564, 165 Ala. 109 ; People v. Lathrop (Cal. App.) 192 -P. 722. 8 Thomas v. State, 32 So. 250, 133 Ala. 139; Eupe v. State, 124 S. W. 655, 57 Tex. Cr. 588. * Lantern v. State, 55 So. 1032, 1 Ala. App. 31. 5 V. S. Holmgren v. United States, 30 S. Ot. 588, 217 U. S. 509, 54 L,. Ed. 861, 19 Ann. Cas. 778, affirming judg- ment (C. C. A. Cal.) 156 F. 439, 84 C. 0. A. 301; (C. C. A. Pa.) Richard- son V. United States, 181 F. 1, 104 C. C. A. 69. Ark. Simms v. State, 150 S. W. 113, 105 Ark. 16. Mo. State v. Potts, 144 S. W. 495, 239 Mo. 403. Mont. State v. Sloan, 89 P. 829, 35 Mont. 367 ; State v. Allen, 87 P. 177, 34 Mont. 403. Tenn. Hicks v. State, 149 S. W. 1055, 126 Tenn. 359. Tex. Foster v. State, 150 S. W. 936, 68 Tex. Cr. R. 38. Glover v. State (Tex. Cr. App.) 76 S. W. 465; Homer v. State (Tex. Cr. App.) 65 S. W. 371. 7 Young V. State, 54 S. B. 82, 125 Ga. 584 ; Dixon v. State, 39 S. E. 846, 113 Ga. 1039; Hellyer v. People, 58 N. E. 245, 186 111. 550; State v. Drew, 179 Mo. 315, 78 S. W. 594, 101 Am. St. Rep. 474. 8 Ala. Cain v. State, 77 So. 453, 16 Ala. App. 303; Smith v. State, 74 So., 755, 15 Ala. App. 662; Pippin v. State, 73 So. 340, 197 Ala. 6l3; All- sup V. State, 72 So. 599, 15 Ala. 121 ; Hutchinson v. State, 72 So. 572, 15 Ala. App. 96 ; White v. State, 71 So. 452, 195 Ala. 681; Murray v. State, 69 So. 354, 13 Ala. App. 175 ; Thomas V. State, 69 So. 315, 13 Ala. App. 50 ; ' Bailey v. State, 65 So. 422, 11 Ala. App. 8; McGhee v. State, 59 So. 573, 178 Ala. 4; Cheney v. State, 55 So. 801, 172 Ala. 368; Phillips v. State, 54 So. Ill, 170 Ala. 5 ; Stockdale v. State, 51 So. 563, 165 Ala. 12; Wil- liams V. State, 50 So. 59, 161 Ala. 52 ; 153 ASSUMPTIONS AS TO EXISTENCE OF FACTS §78 B. Facts Admitted, Not Controverted, or Conci^usively Es- tablished § 78. General rule The court may assume the existence of facts which are admit- ted,* or are not disputed ; ^'^ this rule also applying in criminal cases." Wright V. State, 42 So. 745, 148 Ala. 596 ; Cawley v. State, 32 So. 227, 133 Ala. 128; Mitchell v. State, 32 So. 132, 138 Ala. 65; Pugh v. State, 31 So. 727, 132 Ala. 1; Gllmore v. State, 28 So. 595, 126 Ala. 20. Fla. Stokes v. State, 44 So. 759, 54 Fla. 109. Miss. Cunningham v. State, 39 So. 531, 87 Miss. 417. Tex. Parish v. State, 153 S. W. 327, 69 Tex. Cr. R. 254; Christian v. State, 97 S. W. 694, 50 Tex. Cr. R. 410. 9 Ala, Sheffield Co. v. Harris, 61 So. 88, 183 Ala. 357; Ham v. State, 47 So. 126, 156 Ala. 645. Alaska. Williams v. Alaska! Com- mercial Co., 2 Alaska, 43. Ark. Driver v. Board of Direc- tors of St. Francis Levee Dist., 68 S. W. 26, 70 Ark. 358. Ga. Morrison v. Cureton, 77 S. B. 160, 139 Ga. 299 ; Western Union Tel- egraph Co. V. Harris, 64 S. B. 1123, 6 Ga. App. 260; Eagle & Phenix Mills V. Herron, 46 S. E. 405, 119 Ga. 389; Central of Georgia Ry. Co. v. Johnston, 32 S. E. 78, 106 Ga. 130. 111. Compher v. Browning, 76 N. E. 678, 219 111. 429, 109 Am, St. Rep. 346 ; Chicago Anderson Pressed Brick Co. V. Reinneiger, 140 111. 334, 29 N. B. 1106, 33 Am. St. Rep. 249; Monk V. Caseyville Ry. Co., 202 111. App. 641. Ind. Horka v. Wieczorek, 115 N. E. 949, 64 Ind. App. 387 ; Indianapo- lis & St. L. R, Co. V. Stout, 53 Ind. 143. Iowa. Ryan v. Incorporated Town of Lone Tree, 98 N. W. 287, 122 Iowa, 420. Kan. Wade v. Empire Dist. Elec- tric Co., 158' P. 28, 98 Kan. 366, re- hearing denied 158 P. 1110. Ky. Jones v. Mobile & O. R. Co. 127 S. W. 144. Md. Koch V. Maryland Coal Co., 68 Md. 125, 11 A. 700; Waters' Les- see V. Riggin, 19 Md. 536. Mich. Johnston v. Cornelius, 166 N. W. 983, 200 Mich. 209, L. R. A. 1918D, 880; Dalm v. Bryant Paper Co., 122 N. W. 257, 157 Mich. 550. Mo. Montgomery v. Hammond Packing Co. (App.) 217 S. yf. 867 ; Palmer v. Shaw Transfer Co. (Sup.) 209 S. W. 882; Irwin v. Wilhoit (App.) 199 S. W. 588; Chapman v. Brown, 179 S. W. 774, 192 Mo. App. 78 ; Bouillon v. Laclede Gaslight Co., 147 S. W. 1107, 165 Mo. App. 320; Wise V. Wabash R. Co., 115 S. W. 452, 135 Mo. App. 230; Markey v. Louis- iana & M. R. R. Co., 84 S. W. 61, 185 Mo. 348; Spencer v. Farmers' Mut. Ins. Co., 79 Mo. App. 213; Price V. Patrons' & Farmers' Home Protec- tion Co., 77 Mo. App. 236. Neb. Fitzgerald v. Union Stock- vards Co., 136 N. W. 838, 91 Neb. 493. Nev. Cutler v. Pittsburg Silver Peak Gold Mining Co., 116 P. 418, 34 Nev. 45. N. Y. Smith v. New York Anti- Saloon League, 106 N..y. S. 251, 121 App. Div. 600; McManus v. Woolver- ton (Com. PI.) 19 N. Y. S. 545, judg- ment affirmed 138 N. T. 648, 34 N. B. 513. N. C. Crampton v. Ivie, 32 S. B. 968, 124 N. C. 591. Okl. Choctaw, O. & G. R. Co. v. Burgess, 97 P. 271, 21 Okl. 653. S. C. Hiller v. Bank of Columbia, 79 S. B. 899, 96 S. C. 74; Reardon v. Averbuck, 75 S. E. 959, 92 S. C. 569; Moore v. Columbia & G. R. Co., 38 S. O. 1, 16 S. B. 781. S. D. Duprel v. Collins, 146 N. W. 593, 33 S. D. 365 ; Bolte & Jansen v. Equitable Fire Ass'n, 121 N. W. 773, 23 S. D. 240. Tex. Richard Cocke & Co. v. New 10, 11 See Notes 10 and 11 on pages 154 to 156. §78 INSTRUCTIONS TO JURIES 154 In civil cases, if the evidence is all one way and conclusively Era Gravel & Development Co. (Civ. App.) 168 S. W. 988; Spires v. Mc- Elroy (Civ. App.) 166 S. W. 457 ; Mis- souri, K. & T. Ry. Co. of Texas v. AUen, 115 S. W. 1179, 53 Tex. Civ. App. 433 ; Thompson v. Johnson, 58 S. W. 1030, 24 Tex. av. App. 246. Wash. Blair v. Calhoun, 151 P. 259, 87 "Wash. 154. 10 U. S. Tuttle V. Detroit, G. H. & M. Ry. Co., 122 U. S. 189, 7 Sup. Ct. 1166, 30 L. Ed. 1114 ; (C. C. A. Mo.) Missouri Dist. Telegraph Co. v. Mor- ris & Co., 248 F. 481, 156 C. C. A. 179, appeal dismissed 38 S. Ct. 11, 245 U. S. 651,. 62 L. Ed. 531. Ala. Southern Ry. Co. v. Hayes, 73 So. 945, 198 Ala. 601; Willoughby V. Birmingham Ry., Light & Power Co., 66 So. 887, 11 Ala. App. 611; Alexander v. Smith, 61 So. 68, 180 Ala. 541; Louisville & N. R. Co. v. Holland, 55 So. 1001, 173 Ala. 675; Birmingham Ry., Light & Power Co. V. McCurdy, 55 So. 616, 172 Ala. 488 ; Marx V. Leinkauff, 93 Ala. 453, 9 So. 818. Ark. Pacific Mut. Life Ins. Co. v. Walker, 53 S. W. 675, 67 Ark. 147. Cal. Mathes v. Aggeler & Musser Seed Co., 178 P. 713, 179 Cal. 697; Burrell v. Southern California Can- ning Co., 169 P. 405, 35 Cal. App. 162 ; Vann v. McCreary, 77 Cal. 434, 19 P. 826. Colo, Craig v. A. Leschen & Sons Rope .Co., 87 P. 1143, 38 Colo. 115. Conn. Brown Bag Filling Mach. Co. V. United Smelting & Aluminum Co., 107 A. 619, 93 Conn. 670; Fer- rigino v. Keasbey, 106 A. 445, 93 Conn. 445 ; Temple v. Gilbert, 85 A. 380, 86 Conn. 335; McCaffrey v. Groton & S. St. Ry. Co., 84 A. 284, 85 Conn. 584. Del. Truxton v. Fait & Slagle Co., 42 A. 431, 1 Pennewlll, 483, 73 Am. St. Rep. 81. Fla. Atlantic Coast Line R. Co. v. McCormiek, 52 So. 712, 59 Fla. 121. Ga. Strickland v. Bank of Car- tersville, 81 S. E. 886, 141 Ga. 565; Oxford V. Oxford, 71 S. E. 883, 136 Ga. 589; Reeves v. H, C. AUgood & Co., 67 S. E. 82, 133 Ga. 835 ; Atlan- tic Coast Line R. Co. v. Smith, 65 S. B.,44, 6 Ga. App. 378. 111. Grannon v. Donk Bros. Coal & Coke Co., 102 N. E. 769, 259 111. 350, afiirming judgment, 173 111. App. 395 ; Turner v. Osgood Art Colortype Co., 79 N. E. 306,' 223 111. 629, affirm- ing judgment 125 111. App. 602 ; Town of Normal v. Bright, 79 N. -E. 90, 223 111. 99, affirming judgment 125 111. App. 478 ; Gerke v. Fancher, 158 111. 375, 41 N. E. 982 ; City of Chica- go V. Moore, 139 111. 201, 28 N. B. 1071 ; Vogler v. Chicago & Carterville Coal Co., 196 111. App. 574 ; Jarnecke V. Chicago Consol. Traction Co., 190 111. App. 179; Mackie v. Webster Mfg. Co., 175 111. App. 385 ; Cahill v. Del- lenback, 139 111. App. 320 ; Chicago & A. Ry. Co. V. Traeey, 109 111. App. 563. Ind. Union Traction Co. of Indi- ana V. Elmore, 116 N. B. 837, 66 Ind. App. 95; Archer v. Ostemeier, 105 N. B. 522, 56 Ind. App. 385 ; Cleveland, C. C. & St. L. Ry. Co. v. Jones, 99 N. B. 503, 51 Ind. App 245 ; Halstead V. Woods, 95 N. E. 429, 48 Ind. App.. 127 ; Baltimore & O. R. Co. v. Keiser,. 94 N. B. 330, 51 Ind. App. 58 ; How- ard County Com'rs v. Legg, 110 Ind. 479, 11 N. E. 612. Iowa. Dunning v. Burt, 162 N. W, 23, 180 Iowa, 754; Colsch v. 'Chicago, M. & St. P. Ry. Co., 153 N. W. 327, 171 Iowa, 78; Sewing v. Harrison County, 136 N. W. 200, 156 Iowa, 229 ; State v. Wrangler, 132 N. W. 22, 151 Iowa, 555 ; Murphy v. Hiltlbridle, 109 N. W. 471, 132 Iowa, 114 ; Pratt V. Chicago, R. I. & P. Ry. Co., 77 N. W. 1064, 107 Iowa, 287; Russell v. Huiskamp, 77 Iowa, 727, 42 N. W. 525. Kan. Douglass v. Geiler, 32 Kan. 499. 4 P. 1039. Ky. Western Union Telegraph Co. V. City of Louisville, 169 S. W. 994, 160 Ky. 499 ; Wasioto & B. M. R. Co. V. Blanton, 169 S. W. 589, 160 Ky. 134 ; Otis Elevator Co. v. Wilson, 145 S. W. 391, 147 Ky. 676 ; Lax-Fos Co. v. Rowlett, 139 S. W. 836, 144 Ky. 690; Montgomery v. Morton, 137 S. W. 540, 143 Ky. 793. Me. Toole v. Bearce, 39 A. 558, 91 Me. 209. Mass. McGuire v. Lawrence Mfg. Co., 156 Mass. 324, 31 N. B. 3. Mich. Holcomb & Hoke Mfg. Co. 155 ASSUMPTIONS AS TO EXISTENCE OF FACTS §78 -establishes a certain fact, the court may assume its existence, al- V. CataMo, 165 N. W. 941, 199 -Mich. 265; Hummer v. Midland Casualty ■Co., 148 N. W. 413, 181 Mich. 386; •Colborne v. Detroit United Ry., 143 N. W. 82, 177 Mich. 139 ; Opsomere v. Opsoinere, 133 N. W. 518, 167 Mich. 636; Tunnicliffe v. Bay Cities Con- sol. Ry. Co., 107 Mich. 261, 65 N. W. 226. Minn. Marchio v. City of Duluth, 158 N. W. 612, 133 Minn. 470 ; John- son V. Carlin, 141 N. W. 4, 121 Minn. 176, 4 Ann. Cas. 19140, 705. Miss. Alabama & V. Ry. Co. v. Phillips, 70 Miss. 14, 11 So. 602 ; La- mar V. Williams, 39 Miss. 342 ; Heirn V. McCaughan, 32 Miss. 17, 66 Am. Dee. 588. Mo. Frank Hart Realty Co. v. Ryan (App.) 218 S. W. 412; Argero- poulos V. Kansas City Rys. po., 212 S. W. 369, 201 Mo. App. 287j Denny V. Randall (App.) 202 S. W. 602 ; Nee- ley V. Snyder (App.) 193 S. W. 610; Phillips V. Pryor (App.) 190 S. W. 1027; Young v. Tilley (App.) 190 S. W. 95; Bums v. Polar "Wave lee & Fuel Co. (App.) 187 S. W. 145; Cool V. Petersen, 175 S. W. 244, 189 Mo. App. 717; Hall v. Manufacturers' €oal & Coke Co., 168 S. W. 927, 260 Mo. 351, Ann. Cas. 1916C, 375; Schaaf V. St. Louis Basket & Box Co., 131 S. W. 936, 151 Mo. App. 35; Knight V. Kansas aty, 87 S. W. 1192, 113 Mo. App. 561 ; Schmidt v. St. Louis R. Co., 63 S. W. 834, 163 Mo. 645; First Nat. Bank v. Hatch, 98 Mo. 376, 11 S. W. 739. Mont. De Sandro v. Missoula Light & Water Co., 136 P. 711, 48 Mont. 226 ; Frederick v. Hale, 112 P. 70, 42 Mont. 153. Neb, Thomas v. Otis Elevator Co., 172 N. W. 53, 103 Neb. 401; First Nat. Bank v. Bower, 98 N. W. 834, 5 Neb. (Unof.) 375; Oelke v. Thels, 97 N. W. 588, 70 Neb. 465 ; Thayer Coun- ty Bank v. Huddleson, 95 N. W. 471, 1 Neb. (Unof.) 261; First Nat. Bank v. Sargent, 91 N. W. 595, 65 Neb. 594, 59 L. R. A. 296. N. M, Milliken v. Martinez, 159 P. 952, 22 N. M. 61. OM. Byers v. Ingraham, 151 P. 1061, 51 Okl. 440; . Bleecker v. Miller, 138 P. 809, 40 Okl. 374. S. O. McLain v. Allen, 79 S. E. 1, 95 S. C. 152 ; Black v. Atlantic Coast Line R. Co., 64 S. B. 418, 82 S. C. 478 ; McCarty v. Piedmont Mut. Ins. Co., 62 S. B. 1, 81 S. C. 152, IS L. R. A. (N. S.) 729; Bussey v. Charleston & W. C. Ry. Co., 30 S. E. 477, 52 S. C. 438. S. D. Bolte & Jansen v. Equitable Fire Ass'n, 121 N. W. 773, 23 S. D. 240. Tenn. Farquhar v. Toney, 24 Tenn. (5 Humph.) 502. Tex. Mueller v. State, 215 S. W. 93, 85 Tex. Cr. R. 346; Townsend v. Pilgrim (Civ. App.) 187 S. W. 1021; Houston Oil Co. of Texas v. McGrew, 176 S. W. 45, 107 Tex. 220, affirming .judgment (Civ. App.) 143 S. W. 191 ; Missouri, K. & T. Ry. Co. of Texas V. Cauble (Civ. App.) 174 S. W. 880; Irvin V. Johnson (dv. App.) 170 S. W. 1059 ; Watson v. Rice (Civ. App.) 166 S. W. 106 ; Missouri, K. & T. Ry. Co. of Texas v. Hampton (Civ. App.) 142 S. W. 89; St. Louis Southwest- ern Ry. Co. of Texas v. Shipley, 126 S. W. 952, 60 Tex. Civ. App. 1 ; Mis- souri, K. & T. Ry. Co. of Texas v. Hawley, 123 S. W. 726, 58 Tex. Civ. App. 143; Suderman-Dolson Co. v. Honp (Civ. App.) 118 S. W. 216; Trinity & S. Ry. Co. v. Lane, 79 Tex. 643, 15 S. W. 477, 16 S. W. 18. TJtah. Black v. Rocky Mountain Bell Telephone Co., 73 P. 514, 26 Utah, 451. Va. Rangeley's Adm'r v. South- ern Ry. Cto., 30 S. B. 386, 95 Va. 715. Wash. White v. Jansen, 142 P. 1140, 81 Wash. 435 ; Anderson v. Kin- near, 141 P. 1151, 80 Wash. 638 ; A. H. Gehri & Co. v. Dawson, 116 P. 673, 64 Wash. 240. W. Va. Jones v. Riverside Bridge Co., 73 S. B. 942, 70 W. Va. 374. Wis. Illinois Steel Co. v. Muza, 159 N. W. 908, 164 Wis. 247 ; Schaef- er V. City of Ashland, 94 N. W. 803, 117 Wis. 553. Illustrations of proper instruc- tions within rule. Where, in an action on an insurance agent's bond, there was only one witness who testi- fied concerning the amount of the agent's defalcation, and his testimo §78 INSTRUCTIONS TO JURIES 156 though it is not expressly admitted by the party interested in con- ny showed a liability in excess of the penalty of the bond, and there was no controverting evidence or anything to cause suspicion as to his testimony, it was not error to charge that, if the jury found for plaintiff on the only issue submitted, they should find in plaintiff's favor for the full amount sued for. Foster V. Franklin Life Ins. Co. (Tex. Civ. App.) 72 S. W. 91. In an action by an employs against his employer to recover for injuries resulting from the negligent loading of a car of lumber, where the undisputed evi- dence shows that the car was loaded under the direction and supervision of defendant's foreman, whose duty as vice principal was to see that it was properly loaded before it was placed in the train, a charge on con- tributory negligence, assuming the fact as proved, is not objectionable as a charge on the weight of the evi- dence. El Paso & N. W. Ey. Co. v. McComas, 81 S. W. 760, 36 Tex. Civ. App. 170. Where the evidence show- ed that there was a hole in the mid- dle of the street, leaving room on either side for travel, and that the dty had not closed the street, nor placed signals to mark the hole, and plaintiff testified that he had no knowledge of the existence of the hole, but thought that it had been filled, the court was justified in as- suming in a charge that any one had the right to travel on the street. City of Dallas v. Muncton, 83 S. W. 431, 37 Tex. Civ. App. 112. In tres- pass to try title to land claimed by 10 years' adverse possession, where there was no question as to the char- acter of plaintiff's possession, the only issue being as to the length thereof and the amount of the land possessed, and all the facts tended to show that, if plaintiff was in pos- session at all, the possession was peaceable and adverse, the couri could assume that it was adverse to defendant, and it was not error to fail to state that to recover under 10 years' limitations there should be proof of adverse .possession. Wash- am v. Harrison (Tex. Civ. App.) 122 S. W; 52. Where, in an action for damages resulting from the pollution of a stream, there is no dispute as to the facts of the death of plaintiff's cattle and the destruction of his crops, it is not error for the court to assume such facts in submitting the cause of such damages to the jury. Texas & N. O. Ey. Co. v. Moers (Tex. Civ. App.) 97 S. W. 1064. 11 Wlbopg V. United States, 163 U. S. 632, 16 Sup. Ct. 1127, 41 I>. Ed. 289; (C. C. A. Wash.) May v. Unit- ed States, 157 F. 1, 86 O. C. A. 575, certiorari denied 28 S. Ot. 570, 20& U. S. 542, 52 Ti. Ed. 918. Ala. Murphy v. State, 71 So. 967, 14 Ala. App. 78; Eubanks v. State, 56 So. 88, 2 Ala. App. 61; Brown v. State, 38 So. 268, 142 Ala. 287 ; Sher- rill V. State, 35 So. 129, 138 Ala. 3. Ark. McConnell v. City of Boone- ville, 186 S. W. 82, 123 Ark. 561 ; Jeffries v. State, 61 Ark. 308, 32 S. W. 1080. Cal. People V. Mueller, 143 P. 750, 168 Cal. 526; People v. Pana- goit, 143 P. 70, 25 Cal. App! 158,; People V. Puttman, 61 P. 961, 129 Cal. 258; People v. Phillips, 70 Cal. 61, 11 P. 493. Colo. Imboden v. People, 90 P. 608, 40 Colo. 142. Fla. Edwards v. State, 56 So. 401. 62 Fla. 40. Ga. Allen v. State, 88 S. E. 100, 18 Ga. App. 1 ; Knight v. State, 85 S. E. 915, 143 Ga. 678 ; Wilson v. State, 84, S. E. 81, 15 Ga. App. 632 ; Taylor V. State, 70 S. E. 237, 135" Ga. 622 ; Eobinson v. State, 58 S. E. 842, 129 Ga. 336. ni. People v. Weir, 129 N. E. 116, 295 111. 268 ; People v. Depew, 86 N. E. 1090, 237 111. 574; Smith v. Peo- ple, 103 111. 82; Hanrahan v. Peo- ple, 91 111. 142. Imd. Dorsey v. State, 100 N. E. 369, 179 Ind. 531; Whitney v. State, 57 N. E. 398, 154 Ind. 573 ; Hawkins V. State, 136 Ind. 630, 36 N. E. 419; Anderson v. State, 104 Ind. 467, 4 N. E. 63, 5 N. B. 711. Iowa. State V. Wilson, 144 N. W. 47, 166 Iowa, 309, rehearing denied 147 N. W. 739, 166 Iowa, 309 ; State 157 ASSUMPTIONS AS TO EXISTENCE OF FACTS §78 testing it, or is formally in disputed* In criminal caSes this is the V. Bell, 125 N. W. 652, 146 Iowa, 617 ; State V. McKnight, 93 N. W. 63, 119 Iowa, 79. Me. State V. Day, 79 Me. 120, 8 A. 544. > Mich. People v. Bryan, 136 N. W. 1120, 170 Mich. 683. Minn. State v. Damuth, 160 N. W. 196, 135 Minn. 76. Mo. State V. Bobbst (Sup.) 190 S. W. 257; State v. Blckel (Sup.) 177 S. W. 310; State v. McConnell, 144 S. W. 836, 240 Mo. 269; State v. Priest, 114 S. W. 949, 215 Mo. 1; State V. Miller, 89 S. W. 377, 190 Mo. 449. Neb. Pisar v. State, 76 N. "W. 869, 56 Neb. 455; Morgan v. State, 71 N. W. 788, 51 Neb. 672. N. J. State V. Bectsa, 58 A. 933, 71 N. J. Law, 322. N. C. State v. Williams, 47 N. 0. (2 Jones, Law) 194; State v. Rash, 34 N. C. (12 Ired.) 382, 55 Am. Dec. 420. Okl. Bartell v. State, 111 P. 669, 4 Okl. Cr. 135 ; Stewart v. Territory, 100 P. 47, 2 Okl. Or. 63, rehearing de- nied 102 P. 649,- 2 Okl. Cr. 63. Or. State V. Reed, 97 P. 627, 52 Or. 377. S. C. State V. Bazen, 71 S. E. 779, 89 S. C. 260; State t. Ayers, 68 S. K 625, 86 S. O. 426; State v. Nickels, 43 S. E. 521, 65 S. C. 169. • S. D. State v. Sonnenschein, 159 N. W. 101, 37 S. D. 585; State v. Shepard, 138 N. W. 294, 30 S. D. 219. Tenn. Powers v. State, 97 S. W. 815. 117 Tenn. 363. Tex. Kelly v. State, 151 S. W. 304, 68 Tex. Cr. R. 317; Russell v. State, 111 S. W. 658, 53 Tex. Or. R. 500; Tanner v. State (Cr. App.) 44 S. W. 489; Strang v. State, 32 Tex. Cr. R. 219, 22 S. W. 680 ; Fahey V. State, 27 Tex. App. 146, 11 S. W. 108, 11 Am. St. Rep. 182. Wis. Bates V. State, 103 N. W. 251, 124 Wis. 612, 4 Ann. Cas. 365; Bliss V. State, 94 N. W. 325, 117 Wis. 596. 12 TT, S. (O. C. A. Minn.) Olo- quet Lumber Co. v. Burns, 222 F. 857, 138 C. C. A. 283; Toledo, St. L. & W. R. Co. V. Kountz, 168 F. 832, 94 C. C. A. 244. Ala. Ferguson v. Shipp, 73 So. 414, 198 Ala. 87; Webb v. Gray, 62 So. 194, 181 Ala. 408; City of Mont- gomery V. Wyche, 53 So. 786, 169 Ala. 181. Ark. Western Union Telegraph Co. V. Wilson, 133 S. W. 845, 97 Ark. 198; Prescott & N. W. Ry. Co. v. Morris, 123 S. W. 392, 92 Ark. 365. Ga. Watkins v. Stulb & Vorhauer, 98 S. E. 94, 23 Ga. App. 181; Wil- liams V. Raper, 78 S. E. 253, 139 Ga. 811. 111. Brennan v. City of Streator, 100 N. E. 266, 256 111. 468, affirm- ing judgment 168 lU. App. 134; O'Rourke v. Sproul, 89 N. E. 663, 241 111. 576. Ind. Pittsburgh, C, O. & St. L. Ry. Co. V. Rogers, 87 N. E. 28, 45 Ind. App. 230; Swygart v. Willard, 76 N. E. 755, 166 Ind. 25. Iowa. Mackland v. Board of Sup'rs of Pottawattamie County, 144 N. W. 317, 162 Iowa, 604; Frank V. Davenport, 75 N. W. 480, 105 Iowa, 588; West v. Chicago & N. W. By. Co., 77 Iowa, 654, 35 N. W. 479, 42 N. W. 512. Ky. Louisville & N. B. Co. v. E. J. O'Brien & Co., 182 S. W. 227, 168 Ky. 403, Ann. Cas. 1917D, 922 ; Black V. Terry, 163 S. W. 737, 157 Ky. 600; Cowles V. Carrier, 101 S. W. 916, 31 Ky. Law Rep. 229. Md. Weant v. Southern Trust & Deposit Co., 77 A. 289, 112 Md. 463. Micb. Garrisi v. Kass, 167 N. W. 833, 201 Mich. 643. Mo. Kearse v. Seyb, 209 S. W. 635, 200 Mo. App. 645; State ex rel. National Newspapers' Ass'n v. Ellison (Sup.) 200 S. W. 433, quash- ing certiorari Rail v. National News- paper Ass'n, 192 S. W. 129, 198 Mo. App. 463 ; Spicer v. Spicer, 155 S. W. 832, 249 Mo. 582, Ann. Cas. 1914D, 238 ; Irving v. Chicago, B. I. & P. By. Co., 137 S. W. 1009, 156 Mo. App. 667 ; Westervelt v. St. Louis Transit Co., 121 S. W. 114, 222 Mo. 325; Holton V. Cochran, 106 S. W. 1035, 208 Mo. 314; Flaherty v. St. Louis Transit Co., 106 S. W. 15, 207 Mo. 318; §78 INSTRUCTIONS TO JURIES 158 rule with respect to any collateral fact which tends to prove one of the constituent elements of the crime charged, or which bears on the defense set up by the accused.-'* But with respect to any fact constituting an essential element of the crime alleged the rule, sup- ported by the weight of authority, is that if it is not admitted by the defendant, and so is in dispute by reason of his plea of not guilty, the court cannot assume its existence, although the testi- mony to establish it is without contradiction; the theory of such rule being that the jury have an absolute right to disbelieve the evi- dence adduced to establish such fact.^* In New York, though a Deschner v. St. louis & M. R. R. Co., 98 S. W. 737, 200 Mo. 310; Mitchell V. St. Louis, I. M. & S. Ry. Co., 92 S. W. Ill, 116 Mo. App. 81 ; Cameron V. B. Roth Tool Co., 83 S. W. 279, 108 Mo. App. 265 ; Dunn v. Northeast Electric Ry. Co., 81 Mo. App. 42. Neb. Jones v. Chicago Great Western R. Co., 149 N. W. 813, 97 Neb. 306. N. Y. Kaufman v. Schoefeel, 46 Hun, 571. N. C. Starr v. Southern Bell Tel- ephone & Telegraph Co., 72 S. E. 484, 156 N. C. 435. Okl. St. Louis & S. F. R. Co. v. Kerns, 136 P. 169, 41 OM. 167. Pa. Thomas - Roberts - Stevenson Co. V. Philadelphia & R. Ry. Co., 100 A. 998, 256 Pa. 549; Miller v. Cure, 54 A. 721, 205 Pa. 168. S. C. 'Jilartln v. Seaboard Air Line Ry. Co., 93 S. E. 386, 108 S. O. 130. Xex. Missouri, K. & T. Ry. Co. of Texas v. Kinslow (Civ. App.) 172 S. W. 1124; McKenzie v. Imperiallrr. Co. (Civ. App.) 166 S. "W. 495; Mis- souri, K. & T. Ry. Co. V. Burton (Civ. App.) 162 S. W. 479 ; Kennedy v. Walk- er (Civ. App.) 138 S. W. 1115; Mis- souri, K. & T. Ry. Co. of Texas v. Tolbert (Civ. App.) 134 S. W. 280! Freeman v. Kane (Civ. App.) 133 S. W. 723 ; Ludtke v. Texas & N. O. R. Co. (Civ. App.) 132 S. W. 377 ; Mis- souri, K. & T. Ry. Co. of Texas v. Rothenberg (ffiv. App.) 131 S. W. 1157 ; Crain v. National Life Ins. Co. of United States, 120 S. W. 1098, 56 Tex. Civ. App. 406 ; El Paso & S. W. ■Ry. Co. V. Smith, 108 S. W. 988, 50 Tex. Civ. App. 10 ; Louisiana & Tex- as Lumber Co. v. Meyers (Civ, App.) 94 S. W. 140 ; St. Louis Southwestern Ry. Co. of Texas v. Highnote (Civ. App.) 84 S. W. 365, judgment revers- ed 86 S. W. 923, 99 Tex. 23. Va. Seaboard Air Line Ry. v. Abemathy, 92 S. E. 913, 121 Va. 173. vrasli. Halverson v. Seattle Elec- tric Co., 77 P. 1058, 35 Wash. 600. 13 Ariz. Wagoner v. Territory, 51 P. 145, 5 Ariz. 175. Ga. Roark v. State, 32 S. E. 125, 105 Ga. 736. 111. Zuckerman v. People, 72 N. E. 741. 213 111. 114. Miss. Dean v. State, 37 So.' 501, 85 Miss. 40. Mo. State v; Harris, 51 S. W. 481, 150 Mo. 56. Neb. McCormiek v. State, 92 N. W. 606, 66 Neb. 337 ; Welsh v. State, 82 N. W. 368, 60 Neb. 101. S. C. State V. Thompson, 66 S. E. 789, 76 S. C. 116. S. D. State v. James, 164 N. W. 91, 39 S. D. 263. Tex. Williams v. State (Cr. App.) 105 S. W. 1024; Roberson v. State (Civ. App.) 91 S. W. 578; Oantwell V. State, 85 S. W. 18, 47 Tex. Cr. R. 521 ; Morgan v. State, 67 S. W. 420, 43 Tex. Cr. R. 543 ; Messer v. State, 63 S. W. 643, 4^ Tex. Cr. R. 97 ; Wil- liams V. State, 39 S. W. 664, 37 Tex. Cr. R. 238; Holliday v. State, 35 Tex. Cr. R. 133, 32 S. W. 538. Wasb. Edwards v. Territory, 1 Wash. T. 195. Wis. Cupps v. State, 97 N. W. 210, 120 Wis. 504, 102 Am. St. Rep. 996, rehearing denied 98 N. W. 546, 120 Wis. 504, 102 Am. St. Rep. 996. 1* People V. Craig, 91 P. 997, 152 Oal. 42; State v. Bige, 84 N. W. 159 ASSUMPTIONS AS TO EXISTENCE OP FACTS § 79 fact essential to the crime charged is undisputed and is treated by all concerned as established, the court must submit it to the jury if the defendant so requests.^^ In some jurisdictions,, however, it is not improper in a criminal case to give an instruction assuming an es- sential fact which is proved, although not admitted.^® In Wiscon- sin the courts uphold an instruction containing such an assump- tion," or at least consider it to be, if error at all, not a reversible one;i* and in Minnesota, in a prosecution for larceny, where the question was as to the value of the property stolen, and the evi- dence of the state as to such value was not disputed, it was held that the court might assume the value so proved, although the de- fendant did not formally admit such value, and introduced evi- dence that he had purchased the goods at a certain discount.^® In some jurisdictions the court should assume as true facts which are not disputed.*" § 79. Limitations of rule Under this rule the court should never assume- a fact to be prov- ed, unless the evidence is so conclusive one way that the minds of reasonable men can reach but one conclusion as to the result.*^ That testimony tending to show the existence of certain facts is not contradicted will not necessarily permit the court to assume such facts.** Facts can be treated as undisputed within the above 518, 112 Iowa, 433 ; State v. Barry, i» State v. Fleetwood, 126 N. W. 92 N. W. 809, 11 N. D. 428. 485, 111 Minn. 70, rehearing denied IB People V. Marendi, 107 N. E. 126 N. W. 827, 111 Minn. 70. 1058, 213 N. T. 600 ; People v. Walk- 20 Peterson v. Chicago & O. P. Ele- er, 91 N. E. 806, 198 N. Y. 329. vated R. Co., 103 N. E. 252, 260 111. 18 Davis V. State, JtOO S. E. 50, 24 280, reversing judgment 176 Ill.>App. Ga. App. 35; Carter v. Common- 218; Geo. D. Barnard & Co. v. Rob- wealth, 96 S. E. 766, 123 Va. 810. ertson (Tex. Civ. App.) 29 S. W. 697 ; AssTunptions held proper. Texas & P. By. Co. v. Moore, 8 Tex. Where the evidence showed that de- Civ. App. 289, 27 S. W. 962. ceased, while sitting at a table in so- In Alabama the trial court ean- cial conversation with companions, not be put in error for refusing an was, without warning and without' instruction assuming the existence of provocation on his part, shot to a fact, even though the evidence is death by some person, a charge as- not in dispute. Huguley v. State, 72 suming as a fact that deceased was So. 764, 15 Ala. App. 189 ; Campbell shot down in cold blood, and that v. State, 69 So. 322, 13 Ala. App. 70 ; the i)erson who fired the shot was Warsham v. State, 84 So. 885, 17 Ala. apparently trying to commit murder, App. 181. or doing an act which might cause 21 McCoy v. MiUville Traction Co., bloodshed, was not open to objection. 85 A. 358, 83 N. J. Law, 508 ; Se- State V. Moynihan, 106 A. 817, 93 N. curity Mut. Life Ins. Co. v. Calvert J. Law, 253. (Tex. Civ. App.) 100 S. W. 1033, judg- 17 Perugi V. State, 80 N. W. 593, ment reversed 105 S. W. 320, 101 104 Wis. 230, 76 Am. St. Rep. 865. Tex. 128. 18 Burns v. State, 128 N. W. 987, 22 State v. Anderson, 135 N. W. 145 Wis. 373, 140 Am. St. Rep. 1081. 405, 154 Iowa, 701 ; Martin Fertili- § 79 INSTEUCTIONS TO JURIES 160 rule only when they are not merely unopposed by the direct evi- dence, but when they are not in conflict with the just and proper inferences to be drawn from other facts proved in the case.^* Within such rule a fact is not placed beyond the realm of contro- versy by the uncorroborated testimony of a party to the action,** nor, as a general rule, by the testimony of experts,*® and a fact will be regarded as in dispute if a witness has made contradictory statements with reference thereto.** In some jurisdictions facts put in issue by the pleadings cannot be assumed, because the evidence in their support is uncontra- dicted, when such evidence is in large part oral.*'' In other jurisj dictions it is held, in conformity with the statement of the gen- eral rule set out supra, that if the existence of a fact so put in issue is practically conceded by clear and undisputed evidence the assumption of such fact will not be prejudicial to the sub- stantial rights of the parties, and will not, therefore, be cause for reversal.** § 80. Specific applicatioms of rule The above rule has been applied in civil cases to instructions assuming the existence of the relation of carrier and passenger,*' of the relation of employer and employee,*" of the relation of zer Co. V. Thomas & Co., 109 A. 458, hearing, answers to certified ques- 135 Ma. 633 ; Harrison v. Western tions 144 S. W. 1126, 105 Tex. 82, 39 Union Tel. Co., 48 S. E. 772, 136 N. Li. R. A. (N. S.) 512. C. 381; State v. Johnson, 67 S. E so Choctaw, O. & G. R. Co. v. De- 453, 85 S. C. 265; Byers v. Wallace, perade, 71 P. 629, 12 OM. 367; Gal- 87 Tex. 503, 28 S. W. 1056, 29 S. W. veston, H. & S. A. Ry. Co. v. Worth 760. ' (Tex. Civ. App.) 107 S. W. 958. 2 3 Schultz V. Schultz, 71 N. W. 854, as Citizens' Nat. Life Ins. Co. v. 113 Mich. 502. Ragan, 78 S. E. 688, 13 Ga. App. aa. 2 4 Colo. City of Colorado Springs 27 Dodd v. Guiseffi, 73 S. W. 304, V. Coray, 139 P. 1031, 25 Colo. App. 100 Mo. App. 311. 460. Posting of certain notices. An Miss. Dunlap V, Hearn, 37 Miss, instruction was properly refused 471. ' which assumed that an issuable fact, Mo. Cooley V. Dtmham, 195 S. W. namely, the posting of certain notic- 1058, 196 Mo. App. 399. es was proven in the case, though the N. Y. Merchants' Exch. Nat. Bank fact that the notices were posted V. Wallach (City Ct. N. Y.) 45 N. was uncontradicted. Tognini v. T. S. 885, 20 Misc. Rep. 309, af- Kyle, 17 Nev. 209, 30 P. 829, 45 Am. firming judgment 43 N. T. S. 1159, Rep. 442. 19 Misc. Rep. 711; Brush v. Long . =8 Weil v. Nevitt, 18 Colo. 10, 31 Island R. Co., 42 N. Y. S. 103, 10 App. P. 487. Div. 535, judgment affirmed 53 N. 2 » Dallas Rapid Transit Ry. Co. v. E. 1123, 158 N. Y. 742. Payne (Tex. Civ. App.) 78 S. W. 1085, Tex. Oarothers .v. Finley (Civ. reversed 82 S. W. 649, 98 Tex. 211 App.) 209 S. W. 801 ; Atchison, T. & so Uo^.^ v. Pacific Coast Steel Co., S. F. Ry. Co. V. Lucas (Civ. App.), 153 P. 912, 171 Cal. 489; Louisville, 14jf S. W. 1149, following, on re- E. & St. L. Consol. R. Co. v. Utz, 133 161 ASSUMPTIONS AS TO EXISTENCE OF FACTS §80 principal and agent,'^ of the relation of partnership,'* to the as- sumption of the fact of authority of an agent,*' to the assumption of the fact of negligence,'* to the assumption that slanderous words were uttered,'® that a libel was published,'® that the amount of recovery should be a certain amount," that the results of physical injuries were of a certain character,'* that losses accrued to the family of a decedent through his death,'* and to assump- tions concerning the value of property.*' ' In criminal cases such rule has been applied to the assumption that a crime was committed," that defendant did the act charged Ind. 265, 32 N. B. 881; Patton-Wor- sham Drug Co. v. Drennon (Tex. Civ. App.) 123 S. W. 705. 31 Hartford Life Ins. Co. v. Sher- man, 78 N. E. 923, 223 111. 329, af- firming judgment (1905) 123 111. App. 202; People's Nat. Fire Ins. Co. V. Jackson, 159 S. W. 688, 155 Ky. 150; HufCt v. Dougherty, 171 S. W. 17, 184 Mo. App. 652. 8 2 Gulf, C. & S. F. Ky. Co. v. Wil- banks. 7 Tex. Civ. App. 489, 27 S. W. 302. 83 Devine v. Federal Life Ins. Co., 95 N. E. 174, 250 111. 203 ; McCauley V. McElroy (Tex. Civ. App.) 199 S. W. 317. 84 Ky. Cincinnati, N. O. & T. P. Ey. Co. V. MuUane's Adm'r, 152 S. W. 555, 151 Ky. 499. Minn. Campbell v. Canadian Northern Ky. Co., 144 N. W. 772, 124 Minn. 245. Mo. Keenig v. Missouri Pac. Ry. Co., 19 Mo. App. 327. Tex. Galveston, H. & S. A. Ry. Co. V. Miller (Civ. App.) 191 S. W. 374; Quanah, A. & P. Ry. Co. v. Johnson (Civ. App.) 159 S. W. 406; San Antonio Traction Co. v. Pro- bandt, 125 S. W. 931, 59 Tex. Civ. App. 265; Dallas Rapid Transit Ry. Co. V. Payne (Civ. App.) 78 S. W. 1085, reversed 82 S. W. 649, 98 Tex. 211. VTash. Allend v. Spokane Falls & N. Ry. Co., 58 P. 244, 21 Wash. 324. 3 5 Culver V. Marx, 144 N. W. 982, 155 Wis. 453. 3 8 San Antonio Light Pub. Co. v. Lewy, 113 S. W. 574, 52 Tex. dv. App. 22. IKST.TO JUEIES— 11 8 7 Chambers v. Famham (C. C. A. 111.) 236 F. 886, 150 C. C. A. 148; Jones V. S. H. Kress & Co., 153 P. 655, 54 Okl. 194. 8 3 Ind. Town of Sellersburg v. Ford, 79 N. E. 220, 39 Ind. App. 94. Ky. Louisville & N. R. Co. v. Earl's Adm'x, 94 Ky. 368, 22 S. W. 607. Miss. Mobile & O. K. Co. v. Campbell, 75 So. 554, 114 Miss. 803. Mo. Torreyson v. United Rys. Co. of St. Louis, 145 S. W. 106, 164 Mo. App. 366 ; Sotebier v. St. Louis Trans- it Co., 102 S. W. 651, 203 Mo. 702. Tex. Yellow Pine Paper Mill Co. v. Lyons (Civ. App.) 159 S. W. 909; Southern Kansas Ry. Co. of Texas v. Sage (Civ. App.) 80 S. W. 1038, re- versed 84 S. W. 814, 98 Tex. 438. 3 8 Texas & N. O. R. Co. v. Walker, 125 S. W. 99, 58 Tex. Civ. App. 615. io Ga. Deen v. Wheeler, 67 S. E. 212, 7 Ga. App. 507. Idaho. Soule v. First Nat. Bank of Ashton, 140 P. 1098, 26 Idaho, 66. Mich. Chapin v. Ann Arbor R. Co., 133 N. W. 512, 167 Mich. 648. Pa. Duffy V. York Haven Water & Power Co., 88 A. 935, 242 Pa. 146. R. I. Podrat v. Narragansett Pier R. Co., 78 A. 1041, 32 R I. 255. Tex. Caruthers v. Link (Civ. App.) 154 S. W. 330; Missouri, K. & T. Ky. Co. of Texas v. Wasson Bros.. 126 S. W. 664,* 59 Tex. Civ. App. 239; Stewart v. Jacob Sachs & Co., 96 S. W. 1091, 43 Tex. Civ. App. 530. iiKomrs V. People, 73 P. 25, 31 Colo. 212; Shinn v. State, 68 Ind. 423 ; People v. Mclnerney, 5 N. Y. Cr. R. 47. §81 INSTRUCTIONS TO JURIES 162 to be a criminal offense;** that the flight of defendant was shown," and that a witness was an accomplice.** C. Assumption of Nonbxistence of Facts Instructions ignoring evidence, see post, § 144. § 81. Where there is some evidence of particular fact Where there is some evidence of the existence of a fact in issue, an instruction is erroneous which assumes its nonexist- ence.*^ § 82. Where no conflict in evidence Where there is no conflict in the testimony, and no room to hesitate or doubt that a certain fact exists, an instruction should not assume that such fact is or may be doubtful.** 42 Ind. Smith v. State, 115 N. E. 943. 186 Ind. 252; Hoover v. State, 68 N. B. 591, 161 Ind. 348. Iowa. State V. Evans, 97 N. W. 1008, 122 Iowa, 174 ; State v. Archer, 73 Iowa, 320, 35 N. "W. 241. Kan. State v. Home, 9 Kan. 119. Mo. State v. HoUoway, 56 S. W. 734, 156 Mo. 222. 43 State V. Mangana, 112 P. 693, 38 Nev. 511 ; State v. Belknap, 87 P. 934, 44 Wash. 605. 44Winfield v. State, 72 S. W. 182, 44 Tex. Cr. B. 475. 4 5 Ala. Georgia Home Ins. Co. v. Allen, 30 So. 537, 128 Ala. 451; De Ijoach Mills Mfg. Co. v. Middle- broots, 95 Ala. 459, 10 So. 917. Ga. Shippey Bros. & White v. Owens, 86 S. E. 407, 17 Ga. App. 127. 111. Niagara Fire Ins. Co. v. Bishop, 154 111. 9, 39 N. E. 1102, 45 Am. St. Rep. 105; Springfield Con- sol. Ey. Co. V. Gregory, 122 111. App. 607; Chicago, S. & St. L. R. Co. v. Beach, 29 111. App. 157. Mich. Koehler v. Buhl, 94 Mich. 496, 54 N. W. 157. Minai. Simpson v. Krumdick, 28 Minn. 352, 10 N. W. 18.' Nell. Mutual Hall Ins. Co. of Wisconsin v. Wilde, 8 Neb. 427, 1 N. W. .•^84. N. C. Powell v. Wilmington & W. R. Co., 68 N. O. 395. Or. Isaacson v. Beaver Logging Co., 143 P. 988, 73 Or. 28. Pa. Cross V. Tyrone Min. & Mfg. Co., 121 Pa. 387, 15 A. 643. Wis. Ptilmer v. Wightman, 87 Wis. 573, 58 N. W. 1106. Instructions improper within rule. In an action for in.iiiries from the kick of a horse, warranted gentle by the vendor, a requested Instruc- tion, that, to make the seller's state- ment amount to a warranty, it must be intended as such and so accepted by the purchaser, was properly re- fused, where the manner of presen- tation of the instruction assumed the absence of such intention without reference to the evidence, since, in the absence of evidence to the con- trary, every one Is presumed to in- tend the ordinalcy meaning of his words. Caruthers v. Balsley, 89 Til. App. 559. In an action by an employs for injuries caused by a machine, a charge which assumes that plain- tiff did not know the machine was dangerous is erroneous when plaui- tifC had seen the machine in opera- tion for six months. B. F. Avery & Sons V. Meek, 96 Ky.' 192, 28 S. W. 337. 4 8Hauk v. Brownell, 120 111. 161, 11 N. E. 416; Wlntz v. Morrison, 17 Tex. 372, 67 Am. Dec. 658. 163 COMMENTS ON MERITS OE CONDUCT OF CAUSE § 85 CHAPTER V COMMENT BY COUBT ON MERITS OR C0NDu6t OF CAUSE OR PARTIES § 83. Statement of rule. 84. Applications of rule. 85. Qualifications of rule. § 83. Statement of rule A litigant has a right to a trial by a fair and, impartial Jury, whose consideration of his cause is not influenced by language of the .court which will create resentment or prejudice against him or sympathy for the opposing side/ and where one invokes a judicial remedy given to him by the law the court should not make use of language calculated to make the jury think that the plaintiff, in bringing the action, is doing something inequi- table, oppressive, or savoring of sharp practice.* § 84. Applications of rule In a criminal case it is improper for the court to speak favor- ably of the (Conduct or behavior of the prosecuting witness.* It is improper so to frame instructions as to be likely to induce the jury not to give to the case in hand a careful and full con- sideration, or as to be apt to unduly hasten their deliberations,* and it will ordinarily be error for the court to speak of the pos- sible effect of the termination of the suit one way or the other upon other similar cases or upon the interests of thd general public.^ § 85. Qualifications of rule The delay of a party in bringing an action may be such as to be proper for the consideration of the jury, in which event it is, 1 Monier v. Philadelpbia Rapid that courts should try these cases, but Transit Co., 75 A. 1070, 227 Pa. 273. it is a sad commentary on the sense 2 Randolph v. McCain, 34 Ark. 696; of the people that such slight cause as Westberry v. Clanton, 72 S. B. 238, is in this case should be tried by 136 Ga. 795 ; Ludden v. Olemmons, 16 them ; » * * that in such trifling Neb. 506, 20 N. W. 856. matters parties could not arrange 3 People V. MacDonald, 140 P. 256, them without going into court, where 167 Cal. 545. there is such an amount of costs. The * Skinner v. Stifel, 55 Mo. App. 9. only question in this case is as to the SpeakiiLg of matter in contro- costs in the main," etc., is prejudicial versy as trifling. An instruction in to plaintiff. Ludden v. Olemmons, 16 an action to recover damages caused Neb. 506, 20 N. W. 856. by the trespassing of stock, as fol- ^ Byles v. Hazlett, 11 Wkly. Notes lows: "I suppose that it is necessary Cas. (Pa.) 212, 29 Pittsb. Leg. J. 276. § 85 INSTEDCTIONS T0~ JUEIBS 164 of course, improper to instruct the jury to take no account of such delay.® It is not improper for the court to state that the iaqt that the plaintiff has brought the suit constitutes no reason for giving him a verdict," nor for the court to refer to the inconsistency be- tween defenses set up by the defendant in his answer,* and where the course of the trial is such that considerations not pertaining to the justice or legality of the contention of a party are likely to affect the deliberation of the jury, it is proper for the court to address itself directly to such considerations, for the purpose of preventing such result.^ 8 Shadock v. Alpine Plank Road Co., » McCusker v. Mitchell, 36 A. 1123, 79 Mich. 7, 44 N. W. 158. 20 R. I. 13. 7 Rose V. West Philadelphia Ry. Co. » Magee v. City of Troy,' 48 Hun, (Pa.) 12 'A. 78. 383, 1 N. Y. Supp. 24, judgment affirm- ed 119 N. y. 640, 23 N. B. 1148. 165 QUESTIONS OF LAW IN CIVIL CASES 86 CHAPTER, VI QUESTIONS OF LAW IN CIVIL OASES § 86. General rule. 87. Particular questions of law. 88. Construction and effect of written instruments. 89. Matters relating to contracts. 90. Interpretation and effect of deeds. 91. Questions relating to negligence. 92. Construction and effect of pleadings. 93. Burden of proof, admissibility of evidence, and competency of witnesses. 94. Statutes and ordinances. 95. Foreign laws. 96. Effect of error in submitting question of law to jury. § 86. General rule It is the province and duty of the court in civil cases to instruct the jury as to the general rules of law applicable to the issues and the facts.^ A charge stating the legal conclusions which will result from the establishment of certain facts is not objection- able as a charge upon the facts or the weight of evidence.* Ac- m. S. (C. C. Mass.) Nason v. United States, Fed. Cas. No. 10,024, 1 GaU. 53. Del. State v. Keen, 82 A. 600, 3 Boyce, 224. Ga. Telfair County v. Webb, 47 S. E. 218, 119 Ga. 916. lud. Vivian Collieries Co. v. Ca- hall, 110 N. E. 672, 184 Ind. 473. Kan. Atchison, T. & S. F. Ry. Co. V. Woodson, 100 P. 633, 79 Kan. 567. Ky'. Maltusv. Shields, 2 Mete. 553; Cincinnati, N. O. & T. P. E. Co. v. Silvers, 126 S. W. 120. lia. Union Bank v. Thompson, 8 Bob. 227. Me. Grout v. Nichols, 53 Me. 383. Mass. Fay v. Dudley, 124 Mass. 266. Mich. McCain v. Smith, 137 N. W. 616, 172 Mich. 1. Mo. De Ford v. Johnson (Sup.) 177 S. W. 577; Bamberge v. Supreme Tribe of Ben Hur, 139 S. W. 235, 159 Mo. App. 102 ; Floumoy v. Andrews, 5 Mo. 513. Neb. Bartling v. Behrends, 20 Neb. 211, 29 N. W. 472. Okl. Missouri, O. & G. By. Co. v. Davis, 154 P. 503, 54 Okl. 672. Pa. Lilly v. Paschal's Bx'rs, 2 Serg. & K. 394. S. C. Wylie V. Commercial & Farmers' Bank, 41 S. E. 504, 63 S. C. 406. Tex. St. Louis & S. F. By. Co. v. Lane (Civ. App.) 118 S. W. 847. Va. Picket v. Morris, 2 Wash. 255. 2 Ga. Southern By. Co. v. Chit- wood, 45 S. E. 706, 119 Ga. 28 ; Pierce V. Atlanta Cotton Mills, 79 Ga. 782, 4 S. E. 381. Iowa. Pritchett v. Overman, 3 G. Greene, 531. Kan. Haines v. Goodlander, 84 P. 986, 73 Kan. 183. Mo. Harris v. Woody, 9 Mo. 113; Stewart v. Sparkman, 75 Mo. App. 106; Dunn v. Henley, 24 Mo. App. 579. Neb. Schmuck v. Hill, 96 N. W. 158, 2 Neb. (Unof.) 79. S. C. Kean v. Landrum, 52 S. E. 421, 72 S. C. 556. Tex. Btter v. Stampp & Eichel- berger (Civ. App.) 204 S. W. 143; Kaack v. Stanton, 112. S. W. 702, 51 Tex. Civ. App. 495 ; Houston & T. C. R. Co. V. White, 56 S. W. 204, 23 Tex. Civ. App. 280; Taylor, B. & H. Ry. 86 INSTRUCTIONS TO JURIES 166 cordingly, not only is it error in a civil case to tell the jury that they are the judges of the law as well as of the facts,* but it is the duty of the jury to receive and act upon the law as given to them by the court,* and the court may so instruct.® Instructions which permit the jury to pass upon questions of law are erroneous, and, if requested, are properly refused.* Thus Co. V. Taylor, 79 Tex. 104, 14 S. W. 918, 23 Am. St. Rep. 316. Va. Green v. Grain, 12 Grat 252. Instructions proper within rule. A charge that a failure to deliver a telegraph message without satisfac- tory explanation is some evidence up- on which the jury may hase a verdict for punitive damages. Bush v. West- ern Union Telegraph Co., 76 S. E. 197, 93 S. C. 176. A charge that if there, is a river bottom filled to considerable depth vi^ith sand, gravel, or other por- ous material, over which a stream runs on the surface, and through and in which the water moves under- ground, enough of it rising to supply the surface stream, and through a larger space in the porous material, but in the same general direction as the surface stream, and in connection with it, and in a course and within a space reasonably well defined, then such underground portion would be a part of the water course. City of Los Angeles v. Pomeroy, 57 P. 585, 124 Cal. 597. A charge that it was the duty of the carrier to stop the train long enough at its station for plaintiff to alight was not erroneous as an ex- pression of opinion as to what would be . negligence. Western & A. K. Co. V. Burnham, 50 S. E. 984, 123 Ga. 28. 3 Livingston v. Taylor, 63 S. E. 694, 132 Ga. 1; Atlantic & B. Ry. Co. v. Bowen, 54 S. E. 105, 125 Ga. 460 ; Fer- guson V. Moore, 39 S. W. 341, 98 Tenn. a42 ; Fink v. Evans, 95 Tenn. 413, 32 S. W. 307. i United States v. Ullman (D. C. N. Y.) Fed. Cas. No. 16,593, 4 Ben. 547 ; Lecklieder v. Chicago City Ry. Co., 172 111. App. 557; Eckels v. Hawkin- son, 138 111. App. 627 ; Moore v. Hm- kle, 50 N. E. 822, 151 Ind. 343 ; Brady v. Clark, 12 Lea (Tenn.) 323. 5 Brown v. City of Atlanta, 66 Ga. 71; Thornton v. Lane, 11 Ga. 459; Brun V. Chicago City R. Co., 183 111. App. 129 ; Hart v. Menefee (Tex. Civ. App.) 45 S. W. 854; First Congrega- tional Meeting House Soc. v. Town of Rochester, 66 Vt. 501, 29 A. 810. e TJ. S. (C. C. A. Iowa) What Cheer Coal Co. v. Johnson, 56 F. 810, 6 C. C. A. 148; (C. C. Or.) Brown v. Oregon King Min. Co., 110 F. 728. Ala. Jeffries v. Pitts, 75 So. 959, 200 Ala. -201; Greenwood Caf6 v. Walsh, 74 So. 82, 15 Ala. App. 519; Avondale Mills v. Bryant, 63 So. 932, 10 Ala. App. 507; C. H. Gilliland & Son V. Martin, 42 So. 7, 149 Ala. 672. Ariz. Jordan v. Duke, 36 P. 896, 4 Ariz. 278. Cal. Tompkins v. Montgomery, 55 P. 997, 123 Cal. 219 ; Dean v. Grimes, 72 Cal. 442, 14 P. 178. Conn. Beardsley v. Irving, 71 A. 580, 81 Conn. 489. D. C. Reid V. Anderson, 13 App. D. C. 30. 111. F. W. Cook Brewing Co. v. Goldblatt, 184 111. App. 266; Peoria, Bloomington & Champaign Traction Co. V. O'Connor, 149 111. App. 598; People V. Welch, 143 111. App. 191; Ware v. Souders, 120 111. App, 209; Sexton V. Barrie, 102 111. App. 586. Ind. Prudential Ins. Co. of Amer- ica V. Union Trust Co., 105 N. E. 505, 56 Ind. App. 418. Kan. Shrader v. McDaniel, 189 P. 954, 106 Kan. 755; Aaron v. Missouri & Kansas Telephone Co., 114 P. 211, 84 Kan. 117. Ky. Black V. Davenport, 224 S. W. 500, 189 Ky. 40 ; Illinois Cent. R. Co. V. Dallas' Adm'x, 150 S. W. 536, 150 Ky. 442; Smith v. Cornett, 38 S. W. 689, 18 Ky. Law Rep. 818. Md. Dronenburg v. Harris, 71 A. 81, 108 Md. 597; New York, P. & N. R. Co. V. Jones, 50 A. 423, 94 Md. 24. mich. Stearns v. Vincent, 15 N. W. 86, 50 Mich. 209, 45 Am. Rep. 37; Battershall v. Stephens, 34 Mich. 68. Mo. Niehaus v. Gillanders (App.) 167 QUESTIONS OP LAW IN CIVIL CASES 86 an instruction that the court will sa,nction any verdict the jury 184 S. W. 949 ; Burns v. Limerick, 165 S. W. 1166, ITS Mo. App. 145; Bar- ton V. City of Odessa, 82 S. W. 1119, 109 Mo. App. 76 ; Carroll v. Campbell, 110 Mo. .557, 19 S. W. 809. Mont. Gallick v. Bordeaux, 78 P. 583, 31 Mont. 328. Or. Hoag V. Washington-Oregon Corporation, 144 P. 574, 75 Or. 588, judgment modified on rehearing 147 P. 756, 75 Or. 588; Oberlin v. Oregon- Washington R. & Navigation Co., 142 P. 554, 71 Or. 177. Pa. Poundstone v. Jones, 38 A. 714, 182 Pa. 574 ; Work v. Maclay's Lessee, 2 Serg. & R. 415. S. C. Duren v. Kee, 41 S. C. 171, 19 S. E. 492. Tex. Wall v. Lubbock, 118 S. W. 886, 52 Tex. Civ. App. 405. Vt. Coolidge v. Taylor, 80 A. 1038, 85 Vt. 39. Va. Keen's Ex'r v. Monroe, 75 Va. 424. Wasb. J. L. Mott Iron Works v. Metropolitan Bank, 139 P. 36, 78 Wash. 294; Patterson v. Wenatchee Canning Co., 101 P. 721, 53 Wash. 155. W. Va. Lavrrence's Adm'r v. Hyde, 88 S. E. 45, 77 W. Va. 639 ; Britton v. South Penn Oil Co., 81 S. E..525, 73 W. Va. 792; Tracewell v. Wood Coun- ty Court, 52 S. E. 185, 58 W. Va. 283. Wis. Guinard v. Knapp-Stout & Company, 90 Wis. 123, 62 N. W. 625, 48 Am. St. Rep. 901. Illnstrations of instructions im- proper -within rnle. An Instruction, in ejectment against one claiming through P., that if the jury believe that P., now deceased, had possession of the land under claim of ownership, and adversely to all the world, from a period from about 187^ to 1885, and if they find that at and just before her death in 1901 she had such ad- verse possession, then the presumption is that during the intervening time between say 1885 and the death of P., the adverse possession of P. continued, and would operate a har to this suit under the defense of adverse posses- sion. Hays V. Lemoine, 47 So. 97, 156 Ala. 465. An instruction, in an ac- tion for the killing of a dog, where de- fendant answered, alleging that the dog had recently killed sheep and was approaching defendant's sheep when killed, and plaintiff replied, alleging that he had an agreement with de- fendant whereby his dogs were to be allowed to run at large on defendant's premises, and he was to be liable for double damages for Injury they might cause, telling the jury that if they be- lieved from the evidence that the kill- ing of the dog was wrongful, and done without good cause, they should find for plaintiff, was error, because sub- mitting to the jury the principal issue of law in the case. Brisco v. Laugh- lin, 143 S. W. 65, 161 Mo. App. 76. An instruction that plaintiff, in suing out an attachment, must have acted so as not to "unjustly or wrongfully" injure the rights of other creditors. Martin Brown Co. v. Perrill, 77 Tex. 199, 13 S. W. 975. An instruction, in an ac- tion on a check by an indorsee against the maker, who had stopped payment, that if the indorsee accepted the notes of the payee and his wife for the amount of the check, and released the maker from liability, the verdict should be for the maker, was errone- ous in failing to require the jury to find the facts necessary to constitute a legal release, thus leaving to the jury a question of law. Weant v. Southern Trust & Deposit Co., 77 A. 289, 112 Md. 463. Instructions which permit the jury to construe a contract. Empire State Surety Co. v. Schilling- er Bros., 167 111. App. 632. A charge, in an action for breach of contract, that if the jury believed from the evi- dence . that plaintiffs broke the con- tract, if they did, by demandinc; to be released from a bond of one of the de- fendants to the state, and hy refusing to stay on such bond, if they did, then they could not recover. Ben. C. Jones & Co. V. Gammel-States-Man Pub. Co. (Tex. Civ. App.) 94 S. W. 191, reversed 99 S. W. 701, 100 Tex. 320, 8 L. R. A. (N. S.) 1197. An instruction, in an ac- tion on contracts for acquiring a rail- road right of way, which left it to the jury to determine how much of the work was done by "defendant," inadvertently naming defendant in- stead of plaintiff, and if they found 86 INSTRUCTIONS TO JURIES 168 may return is erroneous,'' as is an instruction which leaves it to that the work was not completed then to' find why it was not completed, and left it to the jury to find the legal consequences of the failure to com- plete the work. Harrison v. Franklin, 103 S. W. 585, 126 Mo. App. 366. In- structions which left to the jury to decide what acts the law required plaintiff to perform before he could re- scind a contract. Gehr v. Hagerman, 26 111. 438. An Instruction which leaves to the determination of the jury the question whether there has been at a particular time a legal trans- fer of the title to real estate. Lence V. Insurance Co. of North America, 147 111. App. 259. A charge in an ac- tion for false imprisonment, requiring the jury to find that "plaintiff was illegally imprisoned." Koth v. Shupp, 50 A. 430, 94 Md. 55. An instruction, in an action for the balance of the price of goods, leaving the question of interest, except the rate thereof, whol- ly to the jury, indicating no time or event from which it should be calcu- lated. Buchanan v. Caine, 106 N. B. 885, 57 Ind. App. 274. A charge, in an action for the cost of repairing cer- tain dams under a loggihg contract: "You know more or less about this class of litigation, about lumber busi- ness and logging contracts, and the way this business is carried on. Use your common sense, and do what is right between these parties." George W. Roby Lumber Co. v. Gray, 73 Mich. 356, 41 N. W. 420. A charge permit- ting the jury to determine what con- stitutes a reasonable precaution to prevent injuries from an excavation in a street is erroneous. City of Mont- gomery V. Bradley & Edwards, 48 So. 809, 159 Ala. 280. A charge, in an action against a city for an assault committed by defendant's street com- missioner who was resurfacing a street, the defense being that plaintiff, a street car driver, was unlawfully removing gravel from the tracks, to find for defendant if the jury should find that plaintiff was himself engaged In an unlawful act, and that his In- jury was the direct result thereof, was properly refused, as submitting to the jury the legal status of plaintiff's act in removing the gravel. Barree v. City of Cape Girardeau, 112 S. W. 724. 132 Mo. App. 182. An instruction, submitting a question whether an agent's authority to sell gavS implied authority to employ a broker, was er- roneous as submitting a question of law, in the absence of evidence that the employment of the broker was one of the necessary things to be done for the proper exercise of the author- ity to sell. Doggett v. Greene, 98 N. E. 219, 254 111. 134, reversing judg- ment 163 111. App. 369. An instruc- tion, in an action against a railway company for the killing of a horse which escaped from plaintiff's field to an adjacent field and thence to adja- cent railroad tracks, which submitted to the jury the question whether the horse was lawfully in the latter field. . Carpenter v. Chicago & A. Ry. Co., 95 S. W. 985, 119 Mo. App. 204. An in- struction, in an action of claim and delivery against a sheriff for horses taken on attachment, that, if the jury believed plaintiff bought them in good faith from the attachment debtor, and was prevented from getting possession by the wrongful act of the attaching creditor, they should find for plaintiff, was erroneous, in leaving to the jury a question of law, whether any act of the attaching creditor was wrongful. Pearce v. Boggs, 99 Cal. 340, 33 P. 906. An instruction, in an action for breach of a contract of sale, the seller not having filed a bond required by the contract within a reasonable time, that, if the bond was filed within such time as to afford the buyer all the protection he was entitled to under the contract, plaintiff was entitled to recover. Equitable Mfg. Co. v. How- ard, 41 So. 628, 148 Ala. 664. A charge, in an action for a seller's breach of contract, to find for plain- tiff unless jury believed that they breached that part of agreement con- cerning the advancement of money by them to defendant was erroneous as leaving it to the jury to determine 7 Bockoven v. Board of Sup'rs of Lincoln Tp., Clark County, 83 N. W. 335, 13 S. D. 317. 169 QUESTIONS OF LAW IN CIVIL CASES §87 the jury to determine what are the facts necessary to be proved to enable a plaintiff to recover,* or an instruction leaving it to the jury to discover and determine from all the facts in the case whether the defendant is liable.* The duty of the trial court to instruct as to the law exists, even under constitutional provisions which declare that, as to the particular action, the jury shall be the judges of the law and the facts.^* § 87. Particular questions of law The question of ownership is frequently one of law.^^ What is a reasonable time within which to perform an act, when de- pending on undisputed facts, may be a question of law.-^^ Where the evidence relative to the manner of conducting a business is undisputed, it is the province of the court as a matter of law to- tell the jury whether such business constitutes interstate com- merce.^* The facts may be such as to show that there has beea what would constitute breach of the contract to advance money. B. F. Spears & Sons v. Winkle, 186 Ky. 585, 217 S. W. 691. An instruction, where tiiere is a sharp conflict in the testimony, which tells the jury that any one who commits a wrongful act is liable for any natural injury result- ing therefrom, although such result could not have been contemplated or foreseen as the probable result of such act. Brownback v. Frailey, 78 111. App. 262. A charge, in an action for damag- es for cutting timber on certain land, the title to which both plaintiff and de- fendant claimed, the court charged that, if the jury believed from the pre- ponderance of the evidence that the defendant cut any timber upon the lands set out in the petition which the jury believed were the lands of the plaintiff, it should find for them, oth- erwise it should find for defendant. Burt & Brabb Lumber Co. v. Hurst, 110 S. W. 242, 33 Ky. Law Rep. 270. An instruction, in trespass quare clausum fregit, that the defendant was not liable for punitive damages unless his agents, when in the plain- tiff's house, acted recklessly and in disregard of her rights, without in any manner defining her rights. Gus- dorff V. Duncan, 50 A, 574, 94 Md. 160. An instruction that, unless it was de- fendant's duty to keep its pipe line in such condition that it was not an ob- struction to the creek in question fa float railroad ties out of it,' they should find for defendant. Cumber- land Pipe Line Co. v. Stambaugh, 126 S. W. 106, 137 Ky. 528. 31 L. R.'A. (N. S.) 1131. An instruction, in an action for damages for diverting wa- ter from an irrigating ditch, that, where the court in a former action had found certainly upon any point that had arisen in this action, its find- ing must control, and was conclusive upon the partifes thereto, is erroneous, as leaving to the jury the construction of the findings of the court, which the court should have itself construed and explained to the jury. Dalton v. Kel- sey, 114 P. 464, 58 Or. 244. 8 Dalton V. Eedemeyer, 133 S. W. 133, 154 Mo. App. 190. » Cook V. MackrpU, 70 Pa. 12. 10 Jones V. Murray, 66 S. W. 981. 167 Mo. 25. 11 Matson v. Ripley, 70 111. App. 86. 12 Long-Bell Lumber Co. v. Stump (C. C. A. Ark.) 86 F. 574, 30 C. O. A. 260; American Window Glass Co. v. Indiana Natural Gas & Oil Co., 76 N. E. 1006, 37 Ind. App. 439 ; Louisville & N. R. Co. V. Grain, 224 S. W. 1063, 189 Ky. 431; Williams v. Powell, 101 Mass. 467, 3 Am. Rep. 396 ; Zineman & Bro. v. William Harris, 6 Pa. Super. Ct. 303. 18 W. T. Rawleigh Co. v. Van Duyn, 188 P. 945, 32 Idaho, 767. § 87 INSTRUCTIONS TO JURIES 170 a wrongful conversion of goods as a matter of law, in which case the court should so instruct." An instruction that cohabi- tation and declarations of the parties that they are husband and wife do not constitute a marriage, in the absence of an agree- ment, express or implied, is not objectionable as a comment on the evidence ;i^ nor is it a charge on the facts to instruct as to the effect of a pardon,^" or as to elements of damage having uni- versal judicial recognition." Whether a party injured by the tort of another has fulfilled his duty to exercise the diligence of an ordinarily prudent man to minimize his damages is one of law for the court, if, under the evidence, only one inference can be drawn as to the plaintiff's duty,^* and where certain facts, as a matter of law, constitute a waiver of rights conferred by contract or otherwise, it will be proper for the court to so charge.^' It is not only the proper function, but the duty, of the court to instruct as to the use of words having a legal technical meaning.^" So the court should declare the legal force of a former judgment set up in bar of the prending action.*^ § 88. Construction and effect of written instrument It is the province and duty of the court, as a general rule, to construe written documents which have been introduced in evi- dence and to declare their legal effect/^ and an instruction so de- 1* Sever Wild v. McLaughlin, 79 N. Andrews v. Graves, Fed. Cas. No. O. 15.3. 376, 1 Dill. 108. 15 Schwingle' v. Keifer (Tex. Civ. Cal. Dean v. Grimes, 72 Gal. 442, App.) 135 S. W. 194. 14 P. 178; McGarvey v. Little, 15 16 Costley v. Galveston City Ry. Co., Cal. 27. 70 Tex. 112, 8 S. W. 114. Del. Schilansky v. Merchants' & 17 Jennings v. Edgefield Mfg. Co., 52 Manufacturers' Fire Ins. Co., 55 A. S. E. 113, 72 S. C. 411. 1014, 4 Pennewill, 293. is'Boyd V. Grove, 173 P. 310, 89 Or. n^, Upchurch v. Mizell, 40 So. 29, 80. 50 Fla. 456. isGroutv Nichols,, 53 Me 383 :Hol- f,^ McCuUough Bros. v. Arm- i'i"f I qn^ftf I r ^Z ' ^^'•""S, 45 S. E. 379, 118 Ga. 424; Home .oBurrell V Southern California ff^'^^iiMf- ^- ^^''^' ^^ «^- ^06, Canning Co., 169 P. 405, 35 Cal. App. ^^_f: \^^:. ^ ^ ..,„„,„„„ jg2 ^"- Bradish v. Grant, 119 111. 606, ai Richardson v. City of Boston, 24 ^\^- ^- 258. Hov7. 188, 16 L. Ed. 625 ; Young v. '"d- Zeuor v. Johnson, 107 Ind. 69, Byrd, 124 Mo. 590, 28 S. W. 83, 46 ^ N. B. 751; Louthain v. Miller, 85 Am. St. Rep. 461; Holbrook v. J. J. Ii"i- 161. Quinlan & Co., 80 A. 339, 84 Vt. 411. Iowa. "Warren v. Chandler, 98 2 2 U.S. (Sup.) Bliven V. New Eng- Iowa, 287, 67 N. W. 242; Potter v. land Screw Co., 23 How. 420, 433, 16 Wooster, 10 Iowa, 334 ; Thorp v. L. Ed. 510, 514; Turner v. Yates, 16 Oralg, Id. 461. How. 14, 14 L. Ed. 824; (C. C. Mo.) Kan.. Dobbs v. Campbell, 72 P. 171 QUESTIONS OF LAW IN CIVIL CASES § 88 daring does not fall within the rule against charging on the facts or the weight of the evidence.*^ An instruction that certain doc- uments are to be construed together is not improper, as permit- ting the jury to construe them."* But while, as a general rule, the interpretation of a written instrument is a question of law for the court, this rule presupposes the absence of a dispute as to the facts and the absence of ambiguities,*^ and where the language employed in such instrument is not free from ambiguity, or is equivocal, and its interpretation depends upon the sense in which the words were used, in view of the subject-matter to which they relate, the relation of the parties, and the surrounding circum- stances properly applicable to it, the intent of the parties becomes a matter of inquiry, and the interpretation of the language used by them is a mixed question of law and fact."® The rule" that the court must determine the legal meaning of documentary evidence is inapplicable, where the dispute is not as to the legal meaning of a document, but as to its tendency to prove one side or the 273, 66 Kan. 805; Akin v. Davis, H Kan. 580. Mich. Battersiall v. Stephens, 34 Mich. 68.. Mo. Milstead v. Equitable Mortg. Co., 49 Mo. App. 191 ; Wright v. Fonda, 44 Mo. App. 634. Op. H. R. Wyllie China Co. v. Vin- ton, 192 P. 400, 97 Or. 350. Pa. Halfman v. Pennsylvania Boil- er Ins. Co., 160 Pa. 202, 28 A. 837; ShafCer v. Corson, 141 Pa. 256, 21 A. 647, 28 Wkly. Notes Gas. 121. S. C. Bedenbaugh v. Southern Ry. Co., 48 S. B. 53, 69 S. C. 1 ; Thomp- son V. Family Protective Union, 45 S. E. 19, 66 S. C. 459; Jones v. Swear- ingen, 42 S. C. 58, 19 S. E. 947. Tex. Sherman Slaughtering & Ren- dering Co. V. Texas Nursery Co. (Civ. App.) 224 S. W. 478; J. M. Radford Grocery Co. v. Jamison (Civ. App.) 221 S. W. 998 ; St. Louis, S. F. & T. Ry. Co. V. Birge-Forbes Co. (Civ. App.) 139 S. W. 3; Bennett v. HolUs, 9 Tex. 437; City of San Antonio v. Lewis, 9 Tex. 69. Va. Houff & Holler v. German American Ins. Co., 66 S. E. 831, 110 Va. 585; Norwich Lock Mfg. Co. v. Hockaday, 89 Va. 557, 16 S. E. 877. Meaning of plain language. An Instruction which submits to the jury the meaning of language which is plain and can have but one meaning is erroijeous, as intimating that the court is of opinion that the jury may rightfully place upon the language some other construction. Dime Sav- ings & Trust Co. V. Jacobson, 191 111. App. 275. 2 3 Iowa. Lucas v. Sayder, 2 G. Greene, 499 ; Durham v. Daniels, Id., 518. S. C. Metz v. Metz, 91 S. E. 864, 106 S. C. 514; Brown v. Moore, 26 S. 0. 160, 2 S. E. 9. Tex. Temple v. Duran (Civ. App.) 121 S. W. 253; Tihsley v. Mcllhenny, 70 S; W. 793, 30 Tex. Civ. App. 352; Howell V. Hanrick (Civ. App.) 24 S. W. 823 ; Wright v. Thompson, 14 Tex, 558. 2* Anglo-American Provision Co. t. Prentiss, 157 111. 506, 42 N. E. 157; Chicago & A. R. Co. v. Matthews, 48 111. App. 361. 25 Cutler V. Spens, 158 N. W. 224, 191 Mich. 603. 2 6 School Dist. No. 8 of Thompson V. Lynch, 33 Conn. 330; Warner v. Miltenberger's Lessee, 21 Md. 264, 83 Am. Dec. 573; Young v. Stephens, 66 Mo. App. 222; Kenyon v. Knights Templars & Masonic Mut. Aid Ass'n, 25 N. E. 299, 122 N. Y. 247; Douglass & Varnum v. Village of Morrisville, 93 A. 810, 89 Vt. 393. 89 INSTRUCTIONS TO JURIES 172 other of an issue of fact, and different inferences may fairly be drawn from it, as to the truth.*' Thus a case which turns upon the proper conclusions to be drawn from a commercial corre- spondence in connection with other facts and circumstances is properly referred to a jury,** and where the controlling question is whether an ambiguous written instrument relates to certain property it is proper for the court to submit the question to the jury for their decision.** § 89. Matters relating to contracts The essentials of a contract are to be determined by the court,^* and instructions are erroneous which leave it to the jury to say whether the undisputed facts in evidence, or the facts found by the jury from the evidence, constitute a contract, either oral or writ- ten,*i or whether certain conversations preliminary to a contract were a part thereof,** o!r whether an alleged contract is supported by a valuable consideration.** Ordinarily the construction of a written contract is for the court,** which should embody such construction in its charge,*® and instructions which permit or require the jury to interpret such a writing are erroneous and properly refused.*® An instruction so construing a contract put 2 7 Carp V. Queen Ins. Co., 79 S. W. 757, 104 Mo. App. 502. 2 8 Rankin v. Fidelity Insurance, Trust & Safe Deposit Co., 23 S. Ct. 553, 189 U. S. 242, 47 L. Ed. 792. 2 9 Hanlon v, Hanlon, 29 S. E, 712, 103 Ga. 562. 30 Gowen v. Kehoe, 71 111. 66 ; Witt V. Gallemore, 163 111. App. 649; W. W. Kendall Boot & Shoe Co. v. Bain, 46 Mo. App. 581. 31 Turner v. Owen, 122 111. App. 501 ; Moody v. Standard Wheel Co., 20 Ind. App. 422, 50 N. E. 890 ; Erskine V. Wilson, 27 Tex. 117. See W. C. Sterling & Son Co. v. Watson & Ben- nett Co., 193 Mich. 11, 159 N. W. 381. Implied contracts. Where the question is whether the parties, by oral communications and by their acts have entered into a contract, the con- clusion to be deduced is not one of law, but of fact, and must be deter- mined as such. Sines v. Superintend- ents of Poor, 55 Mich. 383, 21 N. W. 428. 82 J. W. Bishop Co. V. CuiTan & Burton, 76 A. 275, 30 E. I. 504. ssliumpkin v. Strange (Mo. App.) 179 S. W. 742. 3 4 Paepcke-Leicht Lumber Co. v. Talley, 153 S. W. 833, 106 Ark. 400; Brown Bag Filling Mach. Co. v. Unit- ed Smelting & Aluminum Co., 107 A. 619, 93 Conn. 670; Leas v. Grubbs, 1 Wils. (Ind.) 301 ; Black River Lum- ber Co. V. Warner, 93 Mo. 374, 6 S. W. 210. 35 Timmons v. McKinzie, 189 P. 627, 21 Ariz. 433 ; Aaron v. Missouri & Kansas Telephone Co., 114 P. 211, 84 Kan. 117; Blair v. Baird, 94 S. W. 116, 43 Tex. Civ. App. 134; Pey- ser V. Western Dry Goods Co., 92 P. 886, 48 Wash. 55. 36 Ala. Cobb & Marston v. Me- Kenzie, 60 So. 943, 7 Ala. App. 203; McBntyre v. Hairston, 44 So. 417, 152 Ala. 251; Phoenix. Ins. Co. v. Moog, 78 Ala. 284, 56 Am. Rep. 31. Conn. In re Hotchklss' Will, 92 A. 419. 88 Conn. 655. Ga. John Mallock & Co. v. Kick- lighter, 73 S. E. 1073, 10 Ga. App. 605. 111. Standard Mfg. Co. v. Slaugh- ter, 122 111. App. 479; Beidler v. King, 108 111. App. 23, judgment affirmed 173 QUESTIONS OF LAW IN CIVIL CASES §90 in evidence does not violate a statute prohibiting a judge from summing up or commenting on the evidence.*' The general rule that the construction of a contract is a matter to be determined by the court is subject to the qualification that the entire contract is in writing, needing nothing but an interpre- tation of its language by its own intrinsic light, or that, being by parol, there is no antagonism in the evidence by which it is sought to be established.** Where extrinsic facts are to be con- sidered in connection with the written language of a contract in determining its meaning, very much must be left to the jury.** After the jury have found the facts showing the existence of an oral contract and its terms, it 'is ordinarily for the court to con- strue it and determine its effect.** The question of what is a good and legal cause for failure to carry out a contract should not be submitted to the jury.*^ § 90. Interpretation and effect of deed An instruction as to the interpretation and legal effect of a deed admitted in evidence does not constitute a forbidden expression of opinion on the facts or a charge on the weight of evidence,** and . is generally held to be within the province of the court.** 70 N. B. 763, 209 lU. 302, 101 Am. St. Rep. 246 ; Hutchinson v. Dunham, 41 111. App. 107. Ind. Brown v. Langner, 58 N. B. 743, 25 Ind. App. 538; Spence v. Owen County Com'rs, 117 Ind. 573, 18 N. E. 513. Ky. Elkhorn & B. V. Ky. Co. v. Dingus, 220 S. W. 1047, 187 Ky. 812; Romans v. McGinnls, 160 S. W. 928, 156 Ky. 205. Me. Libby v. Deake, 54 A. 856, 97 Me. 377 Md. ' Doggett V. Tatham, 81 A. 376, 116 Md.- 147 ; Williams v. Woods, 16 Md. 220 ; Baltimore & O. R. Co. v. Resley, 14 Md. 424. Mass. Woodbury v. Sparrell Print, 84 N. B. 441, 198 Mass. 1. N. Y. Schwartz v. Mann (Sup.) 155 N. Y. S. 209. Tex. Magnolia Warehouse & Stor- age Co. V. Davis & Blackwell (Civ. App.) 153 S. W. 670. Utali. Bailey v. Spalding-Livings- ton Investments Co., 136 P. 962, 43 Utah, 535. 87 Randolph t. Govan, 14 Smedes & M. (Miss.) 8. 3 8 Gardner v. Clark, 17 Barb. (N. Y.) 538. 39 Gardner v. Clark, 17 Barb. (N. Y.) 538. *o Short v. Woodward, 79 Mass. (13 Gray) 86 ; Rhodes v. Ohesson, 44 N. C. 336; Hastings' Adm'r v. Eckley's Adm'r, 8 Pa. 194. *i Harmison v. Fleming, 105 111. App. 43 ; La Porte v. Wallace, 89 111. App. 517. Instrnctions improper ivithiii rule. An instruction, In an action for breach of a contract of marriage, that the jury should find for the plaintiff if they believed from the evi- dence that there was a contract of marriage between the parties, and the defendant failed to carry out the contract "without good and legal cause therefor," and plaintiff was damaged by reason of such failure. Bradley v. Schrayer, 204 111. App. 231. 42 Berry v. Clark, 44 S. E. 824, 117 Ga. 964; Phoenix Ins. Co. of Hartford, Conn., V. Neal, 56 S. W. 91, 23 Tex. Olv. App. 427. *8 West Missouri Land Co. v. §91 INSTRUCTIONS TO JURIES 174 Whether an ambiguity in a deed is latent or patent should not be left to the jury to decide." § 91. Questions relating toi negligence . Where negligence is the basis of an action, it is the duty and province of the court to define the standard of care to which the defendant's conduct must conform/^ and it is therefore error, in such an action, to tell the jury that they are the sole judges of the question of negligence,** or to charge that a party must exer- cise such a degree of care as the law requires,*' or to charge that by negligence is meant a failure to observe that degree of care and vigilance which circumstances justly demands whereby an- other suffers injury.** The facts in a particular action may be such as to make the question of negligence one of law,** and where this is the case the court may so instruct,^* without invad- ing the province of the jury," or making a forbidden comment Thompson, 57 S. W. 1042, 157 Mo. 647. Instructions not objectionable as leaving interpretation to jury. Where the trial court states to the jury that certain deeds are before them, if the jury find they" are prop- erly executed, and the court must construe them, and that it had at- tempted to do so, so far as it appear- ed necessary, and that that construc- tion must be accepted as the true construction of the instruments, an objection that the court left to the jury the construction of the deeds is not well taken. Glover v. Gasque, 45 S. E. 113, 67 S. O. 18. *i Newman v. Lawless, 6 Mo. 279. *5 Schindler v. Milwaukee, L. S. & W. Ry. Co., 43 N. W. 911, 77 Mich. 136; Casey v. Hoover, 89 S. W. 330, 114 Mo. App. 47 ; Id., 89 S. W. 336. Instructions improper within rule. Instructions, in an action against an employer for injury to an employ^ struck by moving cars, that it was the engineer's duty to use or- dinary care to prevent injuring em- ployes; that if the employes in charge of the engine and cars did not use such care, and plaintiff was in- jured while using ordinary care, he could recover a specified amount of damages; and that plaintiff was bound to use ordinary care for his own safety; and that, though the en- gineer was negligent, if but for plain- tiffs own negligence the injury would not have occurred, he could not re- cover. West Kentucky Coal Co. v. Davis, 128 S. W. 1074, 138 Ky. 667. 4 « Midland Val. E. Co. v. Bailey, 124 P. 987, 34 Okl. 193. *7 Anderson v. Thunder Bay River Boom Co., 23 N. W. 776, 57 Mich. 216. 48 Missouri, K. & T. Ry. Co. of Texas v. Wood (Tex. Civ. App.) 81 S. W. 1187. 49 Hot Springs St. Ry. Co. v. Hil- dreth, 82 S. W. 245, 72 Ark. 572 ; Ohio, I. & W. Ry. Co. v. Kleinsmith, 38 111. App. 45, following Toledo, P. & W. Ry. Co. V. Bray, 57 111. 515; Snow V. Indianapolis & B. Ry. Co., 9i{ N. E. 1089, 47 Ind. App. 189; Fort Worth & R. G. Ry. Co. V. Eddleman, 114 S. W. 425, 52 Tex. Civ. App. 181. Whether it is negligence for a passenger to stand on the platform of car of a rapidly moving commercial train is held to be a question of law In Alabama. Southern Ry. Co. v. Hayes, 69 So. 641, 194 Ala. 194. BO Crauf V. Chicago City Ry. Co., 85 N. E. 235, 235 111. 262, affirming judgment Chicago City Ry. Co. v. Crauf, 136 111. App. 66; Baltimore & O. S. R. Co. V. Kleespies, 78 N. B. 252, 39 Ind. App. 151, denying rehearing Baltimore & O. S. W. R. Co. v. Klees- pies, 76 N. E. 1015, 39 Ind. App. 151; Gulf & S. I. R. Co. V. Adkinson, 77 So. 954, 117 Miss. llg. Bi Chattanooga, R. & C. R. Co. v. 175 QUESTIONS OF LAW IN CIVIL CASES 92 on the weight of the evidence."* The same rule applies where certain facts show, as a matter of law, that one was not guilty of conti-ibutory negligence,*** and the court does not encroach on the province of the jury by charging on the effect of contributory negligence.^ An instruction in a negligence case leaving it to the jury to say whether the defendant has been negligent, regard- less of the provisions of a statute governing the subject-matter of the suit is erroneous."" An instruction which submits to the jury the determination of the question of whether certain acts of commission or omission of a party constitute negligence, with- out also submitting the facts bearing on such question, is held to be erroneous, as submitting a question of law."^ It is held, however, that if an instruction in a negligence case contains a legal definition of negligence, the fact that it permits the jury to determine what acts or failure to act will make negligence will not render it objectionable as submitting a question of law."' § 92. Construction and effect of pleadings The jury should not be permitted to determine what is alleged in the pleadings or to construe the effect of allegations therein, these being questions of law."* An instruction, therefore, which Clowdis, 90 Ga. 258, 17 S. E. 88; Chicago, R. I. & P. Ry. Co. v. Oizney, 160 P. 880, 61 Okl. 176 ; Rice v. Lock- hart MUls, 55 S. E. 160, 75 S. C. 150; Houston & T. C. R. Co. v. Hubbard (Tex. Civ. App.) 37 S. W. 25. 62 Chicago, R. I. & G. Ry. Co. v. Sears (Tex. Civ. App.) 155 S. W. 1003 ; Texas & P. Ry. Co. v. Laverty, 4 Tex. Civ. App. 74, 22 S. W. 1047;. Texas & P. Ry. Co. V. Mallon, 65 Tex. 115. Instructions held not objection- able. An instruction that, if the jury believed an injury was caused both by the defective construction or unfitness of the engine for the pur- poses for which it was used and the negligence of the engineer and yard foreman, combined with the defect in the engine, the company would be li- able. Missouri Pac. Ry. Co. v. Lehm- berg, 75 Tex. 61, 12 S. W. 838. An instruction that, if a scaffold was built by defendant for the use of plaintiff, and plaintiff was rightfully on it, and it fell while being used in a proper manner, the presumption was that the scaffold was either de- fective in material or construction in the first instance, or had become so since it was put in use, and that de- fendant would be liable, does not vio- late a constitutional provision declar- ing that judges shall not charge juries on the facts or comment thereon. Oleary v. General Contracting Co., 101 P. 888, 53 Wash. 254. 63 Rainey v. New York Cent. & H. R. R. Co., 68 Hun, 495, 23 N. Y. S. 80 ; Houston Belt & Terminal Ry. Co. v. Woods (Tex. Civ. App.) 149 S. W. 372. 64 Musick V. Borough of Latrobe, 39 A. 226, 184 Pa. 375, 42 Wkly. Notes Cas. 209. ^65 Searcy v. Golden, 188 S. W. 1098, 172 Ky. 42. 68 Louisville Bridge Co. v. Iring, 203 S. W. 531, 180 Ky. 729 ; Winslow V. Missouri, K. & T. Ry. Co. (Mo. App.) 192 S. W. 121. 6 7 Conner v. Citizens' St. R. Co., 45 N. B. 662, 146 Ind. 430; Henderson V. Heman Const. Co., 199 S. W. 1045, 198 Mo. App. 423; Case v. Atlanta & 0. A. L. Ry., 92 S. E. 472, 107 S. C. 216. 6 8Bggieston v. The Fair, 167 111. App. 518; Erb v. German-American Ins. Co. of New York, 83 N. W. 1053, §92 INSTRUCTIONS TO JURIES 176 leaves to the Jury the determination of what are the material al- legations in the pleadings or the material issues in the case, is erroneous.®" Thus an instruction that every material allegation in the complaint of" plaintiff, not denied by the answer, must be taken as true for the purpose of the action, is erroneous,^ as is an instruction to find for the plaintiff if the allegations of his complaint are "substantially" proved, since thereby the jury are left to say how far the evidence of the plaintiff may depart from such allegations without defeating his right of recovery ,^^ and 112 Iowa, 357 ; Oliver v. Chapman, 15 Tex. 400; Gabrielson v. Hague Box & Lumber Co., 104 P. 635, 55 Wash. 342, 133 Am. St. Rep. 1032. InstrnctionfS Iield improper within rule. An instruction, in a personal injury action, that defend- ant was seeking to escape liabilifT by pleading not guilty and that plain- tiff was guilty of contributory negli- gence; that from the pleas of con- tributory negligence it was not pre- sumed that plaintiff was guilly, and no burden rested on plaintiff to prove affirmatively that he used due care and diligence, but that the burden was upon defendant to prove the pleas, unless plaintiffs evidence es- tablished such negligence; and that if defendant did not prove the pleas, and plaintiff proved his alle- gations, plaintiff should recover. Birmingham By., Light & Power Co. V. Hayes, 44 So. 1032, 153 Alai 178. An Instruction, in an actldn of tres- l>ass for destroying a bridge and killing and destroying the hogs and cattle of the plaintiff, if the jury believe, "from the pleadings and evi- dence, that this is an action mere- ly for an alleged injury to the realty, and that there Is no evidence that the realty is located in P. county, or that the Injury, If any, was done in that county, to said realty, they may find for the defendants, the venue in such cases being local and material," is er- roneous, since it leaves to the jury to determine from the pleadings the nature of the action. Beebe v. Stuts- man, 5 Iowa, 271. 6 9 111. Laughlin v. Hopklnson, 126 N. E. 591, 292 111. 80 ; Baker v. Sum- mers, 66 N. EJ. 302, 201 111. 52, revers- ing judgment 103 111. App. 237; Six V. Sikklng, 158 111. App. 230; Cox v. Cleveland, C, O. & St. L. Ry. Co., 151 111. App. 473; Trustees of Schools,' etc., St. Clair County v. Yoch, 133 111. App. 32; Chicago & E. I. Ry. Co. v. Walker, 127 111. App. 212; Illinois Cent. R. Co. v. Hicks, 122 111. App. 349 ; Peoria & P. Terminal Ry. v. Hoerr, 120 111. App. 65; Lodge v. Hampton, 116 111. App. 414 ; Daven- port, R. I. & N. W. By. Co. v. De Taeger, 112 111. App. 537; Chicago Terminal Transfer R. Co. v. Schmel- llng, 99 111. App. 577, judgment af- firmed 64 N. E. 714, 197 111. 619; Da- vles V. Cobb, 11 111. App. 587. Iowa. Ottoway v. Milroy, 123 N. W. 467, 144 Iowa, 631; Williams v. Iowa Cent. Ry. Co., 96 N. W. 774, 121 Iowa, 270. I Mo. Alms V. Conway, 78 Mo. App. 490; Fleisehmann v. Miller, 38 Mo. App. 177. W, Va. , Dicken v. Liverpool Salt & Coal Co., 41 W. Va. 511, 23 S. B. 582. An instruction, however, that,, if the evidence In the case is evenly balanced as between the contention of the plaintiff and that of the defend- ant on the material Issues, the jury should find the defendant not guilty, is properly given, where, under the pleadings, evidence, and instructions as given, the jury could not have been mistaken as to what the material Is- sues were. Chicago City Ry. Co. v. Osborne, 105 111. App. 462. ooAUard v. Smith, 2 Mete. (Ky.) 297; Tipton v. Triplett, 1 Mete. (Ky.) 570. eiLumaghl v. Gardin, 53 111. App. 667. In Indiana, however, It has been held that a charge that plaintiff is entitled to recover "unless defendant has proved by a preponderance of 177 QUESTIONS OF LAW IN CIVIL CASES §93 where the facts as proved do not tend to support the allegations of the pleadings, it is the province of the court to so instruct.** So the court may inform the jury that certain evidence is suffi- cient in law to satisfy the averments of the declaration of the plaintiff.** The question of variance between a pleading and the proofs, however, is properly submitted to the jury, where the facts are in dispute,** and an instruction that, if the jury find from the evidence that the plaintiff has made out his case, as laid in his complaint, they must find for him, is held not to make the jury the judges of the effect of the averments of the complaint, but merely to empower them to determine whether the evidence introduced sustains the issues made by the pleadings.*^ § 93. Burden of proiof, admissibility of evidence and icompe- tency of witnesses * It is not for the jury to say on whom the burden of proof rests,** and instructions which authorize the jury to pass upon the admissibility or competency of evidence are erroneous, as sub- mitting questions of law to them.®^ The jury cannot, therefore. the evidence in substance the allega- tions in one or more paragraphs of his answer" is not erroneous, on the theory that such a charge is the equivalent of an instruction that it is only necessary for the defendant to prove the material allegations in some one of the paragraphs of the answer. Walker v. Heller, 73 Ind. 46. 62 Jaccard v. Anderson, 37 Mo. 91. 8s Austin V.Richardson, 3Call(Va.) 201, 2 Am. Dec. 543. 6* Morris v. Bridgeport Hydraulic Co., 47 Conn. 279. «o Laflin & Rand Powder Co. v. Teamey, 131 111. 322, 23 N. E. 389, 19 Am. St. Rep. 34, 7 L. R. A. 262. 68 Alabama Fertilizer Co. v. Rey- nolds, 79 Ala. 497. Effect of e-vidence. A charge on the burden of proof in the case is not a charge "on the effect of the evi- dence," within the Alabama statute prohibiting the court from giving such a charge, unless requested. Hill's Adm'r v. Nichols, 50 Ala. 336. 67 Ala. Wright v. BoUing, 27 Ala. 259. Cal. People v. Ivey, 49 Cal. 56. Fla. Atlanta & St. A. B. Ry. Co. v. Kelly, 82 So. 57, 77 Fla. 479. Inst.to Jtjbies— 12 Ga. Chattahoochee Nat. Bank v. Schley, 58 Ga. 369. Ill, Lambert v. GifBn, 100 N. E. 496, 257 111. 152; Karnes v. Belle- ville & E. R. Co., 89 111. 269; Bald- win V. Toledo, St. L. & W. R. Co., 171 111. App. 137; Chicago Trust & Savings Bank v. Landfield, 73 111. App. 173. Ind. Indiana Farmers' Live Stock Ins. Co. V. Byrkett, 9 Ind. App. 443, 36 N. E. 779. Mich. Colbv V. Portman, 72 N. W. 1098, 115 Mich. 95. Mo. Jones v. Roberts, 37 Mo. App. 163. Tex. Wichita Falls Compress Co. V..W. L. Moody & Co. (Civ. App.) 154 S. W. 1032. Materiality of testimony. An instruction that the jury are the sole judges of the weight and "impor- tance" of the respective testimony of the witnesses is erroneous, as making the jury the judges of the materiality of the testimony. Hansberger v. Se- dalia Electric By., Light & Power Co., 82 Mo. App. 566. Instruction not improper with- in rnle. An instruction that every man is presumed sane, and that in- sanity can only be proved by clear § 93 INSTRUCTIONS TO JURIES 178 be made the judge of what are and what are not material and im- portant features of hypothetical questions,** and it is error for the court to intimate doubts as to the competency of legal testi- mony which has been submitted to the jury on the trial,®* and an instruction directing the jury to disregard all evidence of a wit- ness which clearly appears to be based upon what others have told him is erroneous.'* On the other hand, an instruction which withdraws certain evi- dence from the jury as not being material to the issues is within the province of the court,"^ as is an instruction to disregard cer- tain parts of documents introduced in evidence, where such parts have been shown to be incorrect.'* It -is error to submit to the jury the question of the competency of a witness,'* and where a plaintiff's case rests entirely on the testimony of an incompetent witness, the court should not charge that the plaintiff cannot recover, but should charge directly on the incompetency of the witness.'* § 94. Statutes and ordinances The question of the existence of a statute is one of law for the court to determine,'^ as is the question of the interpretation of a statute,'® and it is error to submit such a question to the jury." So ordinarily the construction of an ordinance is one for the court,'* although in some cases such construction may be left and unexceptional evidence, asserts 72 Missouri, K. & T. Ry. Co. of a correct legal proposition, and in Texas v. Magee (Tex. Civ. App.) 49 giving such a charge the court does g. w. 928. not shift from itself to the jury the ' 73 Lake Brie & W. R. Co. v. Bow- responsibility of passing on the com- ker, 36 N. E. 864, 9 Ind. App. 428 ; petency of the evidence on that issue. Chouteau v. Searcy, 8 Mo. 733. Dominick v. Randolph, 27 So. 481, 124 74 Ross v. Espy, 66 Pa. 481, 5 Am. Ala. 557. jjep 394 r^^^^^^ w ^it^*Io^Jf''«m'^ " Johnson V. Grady County, 150 Co., 161 N. W. 114, ISO Iowa, 805; p ^q^ p-f, ,-.■,■, .,5,0 ■' •" Same v. Travelers' Protective Ass'n •,„ '' °" Jf": . ,, . „ w (Iowa) 161 N. W. 125; Ingwersen v. '" ^°°^,^L,\ w^o^/'io^'m \^- Carr & Brannon, 164 N. W. 217, 180 ^f- Co.. 100 S. W. 494, 123 Mo. App. Iowa, 988; In re Rehard's Estate, ^^^ ' ,^^P^^l?l J- Lebanon Lumber 143 N. W. 1106, 163 Iowa, 310; Mad- Co., 140 P. 990, 71 Or. 15. den V. Saylor Coal Co., Ill N. W. 7 7Winchell v. Town of Camlllus, 57, 133 Iowa, 699; Stutsman v. Sharp- 95 N. Y. S. 688, 109 App. Div, 341, less, 101 N. W. 105, 125 Iowa, 335. affirmed 83 N. B. 1134, 190 N. T. 536 ; 6 9 Potts v. House, 6 Ga. 324, 50 Large v. Orvis, 20 Wis. 696. Am. Dec. 329. 7 8 Sadler v. Peoples (C. C. Pa.) 105 7 Davidson v. Wallingford, 88 Tex. F. 712; Indianapolis Traction & 619, 32 S. "W. 1030. Terminal Co. v. Howard (Ind Sup) 71 In re Darrow, 92 N. E. 369, 175 128 N. E. 35 ; Same v. Smith, Id. 38 ; Ind. 44; Bunck v. McAulay, 147 P. Plummer v. Indianapolis Union Ky. 33, 84 Wash. 473. Co., 104 N. E. 601, 56 Ind. App. 615. 179 QUESTIONS OF LAW IN CIVIL CASES § 96 to the jury under rules laid down by the court for their guid- ance.'* § 95. Foreign laws The general rule is that the laws of other states or countries must be proved as facts, and ordinarily the question must be left to the jury to decide as a fact what the law of another state is, if it becomes material to be determined.** Where, however, the evidence which is given of the law of another state consists of a statute or reports of judicial decisions, the construction of such evidence is for the court,*^ unless the decisions are conflicting, or where inferences of fact must be drawn, in which case the question of what the law is becomes one of fact.** Where the laws of a foreign state have been proved, it is for the court to determine their meaning.** * § 96. Effect of error in submitting question of law to jury An error of the court in submitting for the determination of the jury a question of law is cured by its verdict correctly decid- ing such question,** and such error will not be cause for reversal if the question of law so submitted should have been decided against the party complaining of the error.*^ 7 9 Atchison, T. & S. F. K. Co. v. 8= Hancock Nat. Bank v. Ellis, 172 Anderson, 50 P. 603, 6 Kan. App. 923. Mass. 39, 51 N. E. 207, 42 L. R. A. 80 Mexican Cent. Ry. Co. v. Gehr, 896, 70 Am. St Rep. 232. 66 111. App. 173 ; Ufford v. Spaulding, sa Inge v. Murphy, 10 Ala. 885 ; Ely 30 N. E. 360, 156 Mass. 65; Bank of y. James, 123 Mass. 36 ; Hooper v. China, Japan and The Straits v. Moore, 50 N. C. 130; Frasier v. Morse, 61 N. E. 774, 168 N. Y. 458, 56 Charleston & W. O. Ry., 52 S. B. 964, L. R. A. 139, 85 Am. St. Rep. 676. 73 g. c. 140 ; Fourth Nat. Bank of 81 Cook V. Bartlett, 179 Mass. 576, Montgomery, Ala., v. Bragg, 102 S. 61 N. E. 266; Ufford v. Spaulding, 30 e_ 649^ 127 Va. 47, 11 A. L. R. 1034. N. B. 360 156 Mass 65; Rice V. ^ Courtland v. Tarlton, 8 Raukaus, 101 Mich. 378, 59 N. W. . _„„ 660 ; Union Cent. Life Ins. Co. v. Pol- ^^^ °**^- ,.. . , „ , „ lard 94 Va 146 26 S. B. 421, 36 L. lU- Consolidated Coal Co. v. R. A. 271, ek ^. St. Rep. 715. ' Schaefer, 135 111. 210, 25 N. E. 788. Applicability of foreign, law. Me. Simpson v. Norton,- 45 Me. When the evidence as to the appll- 281. cability of a foreign law consists of Mass. Hinds v. Cottle, 143 Mass. statutes and judicial decisions alone, 310, 9 N. B. 654. and these are not in conflict the jj_ ^ ^^^-^^ ^_ j^ 53 j^ ^ ^ question of the applicability of the yj^pg^t v. Corbin, 85 N. C. 108. law is' wholly for the court, as it is ov i n ^y_ 000 also if to such evidence Is added ex- Or. Johnson v. Shively, 9 Or. 333. pert opinions in entire accord. Tar- sb Randon v. Toby, 11 How. 493, 13 bell V. Grand Trunk Ry. Co. (Vt.) IIX L. Ed. 784; Bernstein v. Humes, 78 A. 567. Ala. 134. §97 INSTRUCTIONS TO JURIES 180 CHAPTER VII QUESTIONS OF LAW IN CRIMINAIi OASES 97. 98. 99. 100. 101. 102. Jury as judges of the law, in absence of constitutional or statutory provisions governing the subject. Effect of constitutional or statutory provisions on power of jury to judge the law. Effect of power of jury to render general verdict. .Power of court to instruct as to the law. Particular questions of law. Sufficiency of defenses. § 97. Jury as judges of the law, in absence of constitutional or ' statuttyy provisions governing the subject In the federal courts, the common-law rule, that the jury in a criminal case are not the judges of the law, but that, on the con- trary, they are to take the law from the court and apply it to the facts which they find from the evidence, prevails,^ and in the ab- sence of an inconsistent constitutional or statutory provision on the subject this rule is followed in the state courts.* 1 U. S. Sparf v. United States, 156 U. S. 51, 15 S. Ct. 273, 39 L. Ed. 343 ; (C. C. Gal.) United States v. Great- house, Fed. Oas. No. 15,254, 2 Abb. (U. S.) 364, 4 Sawy. 457; (0. 0. D. O.) Stettinius v. United States, Fed. Cas. No. 13,387, 5 Oranch, O. C. 573; (C. C. Mass.) United States v. Morris, Fed. Cas. No. 15,815, 1 Curt 23; Unit- ed States V. Battiste, Fed. Oas. No. 14,545, 2 Sumn. 240; (O. 0. N. Y.) United States v. Riley, Fed. Oas. No. 16,164, 5 Blatchf. 204 ; (0. 0. W. Va.) Same v. Keller, 19 Fed. 633. Wash. State v. Fox, 127 P. 1111, 71 Wash. 185, judgment affirmed Fox V. State of Washington, 35 S. Ct. 383, 236 U. S. 273, 59 L. Ed. 573. 2 Ala. Kennedy v. State, 40 So. 658, 147 Ala. 687; Tidwell v. State, 70 Ala. 33. Ark. Curtis V. State, 36 Ark. 284. Cal. People V. Williams, 156 P. 882, 29 Cal. App. 552 ; People v. Ivey, 49 Cal. 56. Conn. State v. Gannon, 52 A. 727, 75 Conn. 206. Iowa. State V. Kirk, 150 N. W. 91, 168 Iowa, 244; State v. Belong, 12 Iowa, 453. Kan. State v. Truskett, 118 P. 1047, 85 Kan. 804 ; State v. Bowen, 16 Kan. 475. Mass. Commonwealth v. Marzyn- skl, 149 Mass. 68, 21 N. E. 228; Com- monwealth V. White, 10 Mete. (Mass.) 14; Same v. Porter, 10 Mete. (Mass.) 263. Mich. People V. Gardner, 106 N. W. 541, 143 Mich. 104; Hamilton v. People, 29 Mich. 173. . Miss. Williams v. State, 32 Miss. 389, 66 Am. Dec. 615. Mo. State v. Schoenwald, 31 Mo. 147; Hardy v. State, 7 Mo. 607. W. H. Lord V. State, 16 N. H. 325, 41 Am. Dec. 729; Pierce v. State, 13 N. H. 536, N. Y. People V. Grout, 161 N. Y. S. 718, 174 App. Div. 608; Duffy v. People, 26 N. Y. 588 ; People v. Pine, 2 Barb. 566; Same v. Finnegan, 1 Parker, Cr. R. 147; Carpenter v. People, 8 Barb. 603; SafCord v. Peo- ple, 1 Parker, Cr. R. 474. N. C. State v. Windley, 100 S. E. 116, 178 N. O. 670; State v. Walker, 4 N. O. 662. Pa. Theel v. Commonwealth, 12 A. 148. 181 QUESTIONS OF LAW IN CRIMINAL ^CASES 98 § 98. Effect of constitutional or statutory provisions on power of jury to judge the law In a number of jurisdictions there are constitutional and statu- tory provisions making the jury, in criminal cases, the judges, either unqualifiedly or under the direction of the court, of the law as well as the facts.* The effect of these provisions is variously stated. In Illinois it is held that under the statute of that state the jury are not bound by the instructions of the court as to the law, if they can say upon their oaths that they know the law better than the court does,* and in certain jurisdictions where the statutory provision relates merely to prosecutions for libel or S. C. State v. Drawdy, 14 Eich. Law, 87. S. D. State v. CarUsle, 139 N. W. 127, 30 g. D. 475, writ of error dis- missed Carlisle v. State of South Da- kota, 35 S. Ct. 663, 238 U. S. 609, 59 L. Bd. 1487. Tenn. McGowan v. State, 9 Yerg. 184. Tex, Newton v. State, 138 S. W. 708, 62 Tex. Cr. R. 622; Leonard v. State, 119 S. W. 98, 56 Tex. Cr. R. 84; State V. Phare, 1 Ky. Law Rep. 135. Va. Brown v. Commonwealth, 86 Va. 466, 10 S. B. 745. Wasb. Hartigan v. Territory, 1 Wash. T. 447. W, Va. State v. Dickey, 37 S. E. 695, 48 W. Va. 325. Wis. Campbell v. State, 86 N. W. 855, 111 Wis. 152. In Vermont, overruling the earlier cases of State v. Meyer, 58 Vt. 457, 3 A. 195, State v. Croteau, 23 Vt. 14, 54 Am. Dec. 90, the later decisions hold that the doctrine that jurors are paramount judges of the law as well as of the facts, in criminal cases, is contrary to the common law, contrary to Const. Vt. c. 1, arts. 4, 10, guaranty- ing every person "a certain remedy" for all wrongs, comformable to the laws, and that he shall not be depriv- ed of liberty "except by the laws," contrary to R. L. §§ 1699, 1700, rela- tive to reservation of questions of law to the supreme court after a verdict of guilty, and contrary, also, to Const. U. S. art. 6, declaring such constitu- tion, and all laws in pursuance there- of, the supreme law, binding on all judges in every state. State v. Bur- pee, 65 Vt. 1, 25 A. 964, 19 L. R. A. 145, 36 Am. St. Rep. 775. Even in capital cases the jury are not judges of the law as well as of the facts. Pierson v. State, 12 Ala. 149. The right of counsel to appear in a cause is a question of law for the court. State v. De Wolfe, 74 P. 1084, 29 Mont. 415. Dnty of jury to f oUoxr instruc- tions, Tvhether right or 'wrong. An instruction to find for defendant, ac- cused of seduction, if his promise of marriage was conditioned upon preg- nancy resulting from the intercourse, is the law of the 'case, and, whether right or wrong, binds the jury to find defendant not guilty, where prosecu- trix testified that defendant promised to marry her if she would let him have intercourse with her and he got her in a family way. State v. Reilly, 73 N. W. 356, 104 Iowa, 13. 3 Ind. Hudelson v. State, 94 Ind. 426, 48 Am. Rep. 171; Fowler v. State, 85 Ind. 538; Keiser v. State, 83 Ind. 234 ; Clifford v. State, 56 Ind. 245; Lynch v. State, 9 Ind. 541. La. State v. Malone, 62 So. 350, 133 La. 56; State v. Saliba, 18 La. Ann. 35 ; Same v. Jurche, 17 La. Ann. 71; State v. Lenares, 12 La. Ann. 226; State V. Scott, 11 La. Ann. 429. Me, State V. Snow, 18 Me. 346. Md. Forwood V. State, 49 Md. 531. Pa. Commonwealth v. Sallager, 3 Olark, 127, 4 Pa. Law J. 511 ; Same v. Connor, 5 Law T. (N. S.) 83. Tenn, Ford v. State, 47 S. W. 703, 101 Tenn. 454. i People V. Ezell, 155 111. App. 298. § 98 INSTEUCTIONS TO JURIES 182 slander it has been held that in such a prosecution the jury are not bound to find as the judge directs,^ and that the instructions of the court are only to inform the judgments of the jury, and not to bind their consciences.® But the general trend of the deci- sions under such provisions is to the effect that the jury should accept the law as laid down and expounded to them by the judge." Under such provisions the law of which the jury are the judges is ordinarily the law given them in charge by the court,* and the jury have no right to disregard the law, but must, upon their oaths, determine it correctly ; * nor can they make law for the occasion,^* and where the authority vested in them is to deter- mine the law under the court's direction as to the law they have not the moral right to disregard such direction." In some jurisdictions it is said that, while the jury are the judges of the law, the best evidence of it is the. statement of the law in the charge of the court.^* In this view the court is a wit- ness to the jury of what the law is,^^ and the jury, in determining the law, have no more right arbitrarily to ignore the court's in- structions than they have to disregard the e^■idence in determin- ing the facts.^* Such provisions refer only to such questions of law as the jury B Gardner v. State, 139 P. 474, 15 Ariz. 403 ; State v. Westbrook. 171 S. W. 616, 186 Mo. App. 421; State v. Armstrong, 106 Mo. 395, 16 S. W. 604, 13' n R. A. 419, 27 Am. St. Rep. 361, overruling Same v. Hosmer, 85 Mo. 553. e Appeal of Lowe, 46 Kan. 255, 26 P. 749. 7 Ga. Rouse v. State, 71 S. B. 667, 136 Ga. 356 ; Hunt v. State, 81 Ga. 140, 7 S. E. 142; Danfortli v. State, 75 Ga. 614, 58 Am. Rep. 480. 111. Schnier v. People, 23 111. 17; Fisher v. Same, 23 111. 283. Ind. Fowler v. State, 85 Ind. 538 ; McDonald v. State, 63 Ind. 544 ; Wil- liams V. State, 10 Ind. 503; Carter v. State, 2 Ind. 617. I.a. State V. Tally, 23 La. Ann. 677. Md. Wheeler v. State, 42 Md. 563. Mass. Commonwealth v. Marzyn- ski, 149 Mass. 68, 21 N. B. 228 ; Com- monwealth V. Abbott, 13 Mete. 120. Ohio. Montgomery v. State, 11 Ohio, 424. Tenn. Harris v. State, 7 Lea. 538. 8 Dunham v. State, 70 S. E. Ill, 8 Ga. App. 668. 9 Dean v. State, 46 N. B. 528, 147 Ind. 215 ; Anderson v. State, 104 Ind. 467, 5 N. E. 711. 10 State V. Buckley, 40 Conn. 246. Instrnction held proper. A charge that the jury are the sole judges of the facts, and may deter- mine the law as enacted by the Legis- lature and interpreted by the courts, is not objectionable as invading the province of the jury. Leseuer v. State, 95 N. B. 239, 176 Ind. 448. 11 State v. Wong Si Sam, 127 P. 683, 63 Or. 266 ; State v. Daley, 103 P. 502, 54 Or. 514, rehearing denied 104 P. 1, 54 Or. 514; State v. Walton, 99 P. 431. 53 Or. 557, rehearing denied 101 P.. 389, 53 Or. 557. 12 Commonwealth v. Bednorciki, 107 A. 666, 264 Pa. 124; Common- wealth V. McManus, 143 Pa. 64, 21 A.. 1018, 22 A. 761, 14 L. R. A. 89; Com- monwealth V. Goldberg, 4 Pa. Super. Ct. 142. 13 Ford V. State, 47 S. W. 703, 101 Tenn. 454. 11 Dean v. State, 46 N. E. 528, 147 Ind. 215. 183 QUESTIONS OF LAW IN CRIMINAL CASES § 100 are required to consider in making up their verdict.^^ They do not refer to such questions as the sufficiency of the indictment or questions of law arising upon the admissibility of evidence/" nor do they give power to determine the constitutionality of the statute upon which the prosecution is based/' § 99. Effect of power of jury to render general verdict The power of the jury to render a general verdict of guilty or not guilty gives them the physical ability to disregard the in- structions of the court as to the law, and since the rule is that, where a jury returns a general verdict of not guilty in a criminal case, the trial court has no power to set it aside or modify it in any respect,^* it is sometimes said that in this sense they are the judges of the law.^* But, as one court has said, the power of giving wrong verdicts with impunity does not render such ver- dicts right.*" § 100. Power of court to instruct as to the law In all jurisdictions where jury trials are authorized, the court has power to charge the jury as to the law in criminal eases,*^ this being so even in those jurisdictions where, as stated supra, the jury are made, by constitutional or statutory provision, the judges of the law.^'' Indeed, in one jurisdiction having such a pro- 15 Anderson v. State, 5 N. E. 711, ta. State v. Scott, 12 La. Ann. 386. 104 Ind. 467. Pa. Oommonwealtli v. Bednorclki, 18 Anderson v. State, 5 N. E. 711, 107 A. 666, 264 Pa. 124; Common- 104 Ind. 467. wealth v. Shurlock, 14 Leg. Int 33; I'f TJnited States v. Callender, Fed. Teim. Brown v. State, 6 Baxt 422. Cas. No. 14,709; State v. Main, 37 A. 20 Hamilton v. People, 29 Mich. 173. 80, 69 Conn. 128, 36 L. B. A. 623, 61 21 People v. Fowler, 174 P. 892, 178 Am. St. Rep. 30 ; Franklin v. State, Cal. 657 ; People v. Kelsey, 14 Abb. ■ 12 Md. 236; Harrison v. Common- Prac. (N. Y.) 372; Gwatkin v. Corn- wealth, 123 Pa. 508, 16 A. 611, 23 monwealth, 9 Leigh, 678, 33 Am. Dec. Wkly. Notes Cas. 75. 264 ; Blunt v. Commonwealth, 4 Leigh isBatre v. State, 18 Ala. 123; Ap- (Va.) 689, 26 Am. Dec. 341. peal of Lowe, 46 Kan. 255, 26 Pac. 749. 22 People v. Miller, 106 N. E. 191, 19 XT. S. United States v. Taylor 264 111. 148, Ann. Cas. 1915B, 1240; {C. C. Kan.) 11 Fed. 470 ; United States Sherer v. State, 121 N. B. 369, 188 V. Wilson, Fed. Cas. No. 16,730, Baldw. Ind. 14; Parker v. State, 136 Ind. 284, 78 ; Same v. Stockwell, Fed. Cas. No. 35 N. E. 1105 ; State v. Berd*;ta, 73 16,405, 4 Cranch. C. C. 671 ; Stettinius Ind. 185, 38 Am. Rep. 117. V. United States, Fed. Cas. No. 13,387, In. Mairyland the constitutional 5 Cranch, C. C. 573. provision declaring that the jury shall Conn. State V. Gannon, 52 A. 727, be judges as well of law as of fact in 75 Conn. 206. criminal cases does not prohibit the Ga. Berry v. State, 31 S. E. 592, court from instructing the jury on 105 Ga. 683; Robinson v. State, 66 Ga. the law, when they unanimously re- 517 ; McDaniel v. State, 30 Ga. 853. Quest it. Beard v. State, 71 Md. 275, Ky. Commonwealth v. Van Tuyl, 1 17 A. 1044, 4 L. R. A. 675, 17 Am. St. Mete. 1, 71 Am. Dec. 455. Rep. 536; although no. Instructions 101 INSTRUCTIONS TO JURIES 184 vision, the court is also required by statute to instruct as to the' law,** and in the great majority of jurisdictions, whether affected by such a provision or not, the court may charge that the jury should take the law as given to them by the court.** In Indiana the court may tell the jury not to disregard the law,*^ and that it is the duty of the court to instruct them as to what the law is,** and that, if the jury are in doubt as to the law, they should give the instructions of the court respectful consideration,*'' and in some of the cases it is held that it is proper to charge that they should take the law from the court.** In Illinois it is proper to tell the jury, after instructing that they are the judges of the law as well as of the facts, that, before they can disregard the law as given them by the court, they ought to be able to say, upon their oaths, that they are better judges of the law than the court.** § 101. Particular questions of law In accordance with the rule above stated,^* the court should not submit to the jury the question of the jurisdiction of the court, nor should it submit the question of the constitutionality can be given except In a merely ad- visory form, Deems v. State, 96 A. 878, 127 Md. 624. 23 Clem V. State, 31 Ind. 480. 24 Cal. People V. Crane, 87 P. 239, 4 Cal. App. 142. Ga. Holton v. State, 72 S. E. 949, 137 Ga. 86; Skrine v. State, 51 S. B. 315, 123 Ga. 171 ; Jackson v. State, 45 S. E. 604, 118 Ga. 780. I.a. State v. McLofton, 82 So. 680, 145 La. 499; State v. Ford, 37 La. Ann. 443; Same v. Vinson, 37 La. Ann. 792; State v. Newton, 28 La. Ann. 65. Mich. People v. Smith, 108 N. W. 1072, 145 Mich. 530. N. J. Roesel v. State, 41 A. 408, 62 N. J. Law, 216, Wash. Leschi v. Territory, 1 Wash.'T. 13. Duty to accept inteFpretation of court -whetlier right or ivrong. Under a statute which requires the jury "to receive as law what is laid down as such by the court," It Is not error for the court to say, in charging the jury, "You should receive the law as I state it to be, notwithstanding you may firmly believe that I am wrong, and that the law is, or should be, otherwise." People v. Worden, 45 P. 844, 113 Cal. 569. In Tennessee it is not error, in a criminal case, to charge the jury that they cannot arbitrarily disregard the instructions of the court as to the law. Robertson v. State, 4 Lea, 425. 2 5 Blaker v. State, 130 Ind. 203, 29 N. E. 1077. 2 6 Stocking V. State, 7 Ind. 326; Powers V. State, 87 Ind. 144. Defendant cannot complain of an instruction that it Is the duty of the court to instruct it as to the law of the case, but the Instructions are advisory merely, and it has the right to disregard them, and determine the law for itself. Walker v. State, 136 Ind. 663, 36 N. E. 356. 27 Bird v. State, 107 Ind, 154, 8 N. E. 14. 2sDriskm V. State, 7 Ind. 338; Hogg V. State, 7 Ind. 551. 2 9 Davison v. People, 90 111. 221; Spies V. People, 122 III. 1, 12 N. E. 865, 3 Am. St. Rep. 320; Reddish v. People, 84 111. App. 509. 30 Renan v. Commonwealth, 2 Ky. Law Rep. 66. 185 QUESTIONS OP LAW IN CRIMINAL CASES 101 of the statute on which the prosecution is based,*^ nor whether such a statute is so uncertain as to be void,** nor the meaning of a term used in such a statute,** nor the question as to whether an arrest or the service of legal process was lawful,** nor the question as to whether one had a right to carry weapons.** On conflicting evidence it is for the jury to say what the law of an- other state is, under proper instructions from the court.** Questions as to the sufficiency of an indictment or informa- tion,*'' or as to what are the material averments therein,** are for the court to determine^ An instruction in a criminal case that proof of motive is not essential to a conviction does not in- vade the province of the jury.** Questions relating to the admissibility, competency, or materi- ality of evidence are for the court to pass upon.** It is proper to refuse instructions which include rules governing the admis- sibility of evidence,*^ and it is error to submit evidence' to the jury, to be considered by them if they are of the opinion that it is applicable to the issues, but to be disregarded if they are of a <:ontrary opinion.*^ In some cases, however, the admissibility of 81 United States v. Riley, Fed. Cas. No. 16,164, 5 Blatchf. 204; State v. McKee, 46 A. 409, 73 Conn. 18, 49 U E. A. 542, 84 Am. St. Rep. 124. 3 2 State V. Main, 37 A. 80, 69 Conn.- 123, 36 L. R. A. 623, 61 Am. St. Rep. SO. 3 3 St. Louis, I. M. & S. R. Co. v. State, 143 S. W. 913, 102 Ark. 205. 3* Gibbons v. Territory, 115 P. 129, 5 Okl. Cr. 212; State v. Anselmo, 148 P. 1071, 46 Utah, 137. 3 5 Carlisle v. State (Tex. Cr. App.) 56 S. W. 365. 8 6 People V. Tufts, 139 P. 78, 167 Cal. 266 ; State v. Morgan, 176 N. W. 35, 42 S. D. 517. 37 State V. Woods, 36 So. 626, 112 La. 617; State v. Plough, 97 A. 265, 88 N. J. Law, 428, denying rehearing 97 A. 64, 88 N. J. Law, 425; Smith v. People, 47 N. Y. 303. 3 8 Harvey v. State, 73 So. 200, 15 Ala. App. 311 ; People v. Fleshman, 148 P. 805, 26 Cal. App. 788; Holt v. State, 62 S. E; 992, 5 Ga. App. 184. so Wheeler v. State, 63 N. E. 975, 158 Ind. 687; State v. Mcintosh, 39 S. C. 97, 17 S. E. 446. 10 Ala. Ward v. State, 58 So. 788, 4 Ala. App. 112. Ark. Paxton v. State, 170 S. W. 80, 114 Ark. 393, Ann. Cas. 1916A, 1239. Cal. People T. Cook, 83 P. 43, 148 Cal. 334. Ga. Rouse v. State, 69 S. E. 180, 135 Ga. 227. Idaho. State V. Bouchard, 149 P. 464, 27 Idaho, 500. 111. People V. Niles, 129 N. E. 97, 295 111. 525. Ind. Ruse V. State, 115 N. E. 778, 186 Ind. 237, L. E. A. 1917B, 726; Townsend v. State, 2 Blackf. 151. Ky. Robinson v. Commonwealth, 199 S. W. 28, 178 Ky. 557. la. State v. Stephen, 45 La. Ann, 702, 12 So. 883. Mass. Commonwealth v. Knapp, 10 Pick. 477, 20 Am. Dec. 534. Micb. People V. Hurst, 1 N. W. 1027, 41 Mich. 328. Neb. Clarence v. State, 125 N. W. 540, 86 Neb. 210. N. Y. . State V. Jewett, 2 Wheeler, Cr. Cas. 589. Tex. Newton v. State, 138 S. W. 708, 62 Tex. Cr. R. 622. Wis. Spick V. State, 121 N. W. 664, 140 Wis. 104. *i Adkisson v. State, 218 S. W. 167, 142 Ark. 34. 42 People V. Ivey, 49 Cal. 56. 101 INSTRUCTIONS TO JURIES 186 evidence may present a mixed question of law and fact, in which case the court can submit its admissibility to the jury and in- struct them that if they find, under the instructions, that such evidence is admissible to consider it, but otherwise to reject it.** Thus whether dying declarations were made, and made when the deceased was in the article of death and conscious of his condi- tion, is finally to be determined by the jury, and an instruction tending to lead the jury to think that they must take dying dec- larations as evidence is erroneous.** Primarily, the admissibility in evidence of an alleged confes- sion of the accused,*^ including the question of the voluntary character of the confession,*^ is for the court to determine, and in some jurisdictions it is held that the decision of the court as to whether the confession was voluntary, and admitting it in evi- dence, is final, and that it is error to instruct that the jury can or must reject the confession, if they believe it, under the evidence. 48 Cal. People v. Wagner, 155 f. 649, 29 Cal. App. 363. Kan. State v. Cook, 17 Kan. 392. Mass. Commonwealth v. Tucker, 76 N. E. 127, 189 Mass. 457, 7 L. R. A. (N. S.) 1056; Commonwealth v. Robinson, 146 Mass. 571, 16 N. E. 452. Okl. Gonzalus v. State, 123 P. 705, 7 Okl. Cr. 444 ; Coleman v. State, 118 P. 594, 6 Okl. Cr. 252. Tex. Lucas v. State (Cr. App.) 225 S. W. 257; HlUiard v. Stkte, 222 S. W. 553, 87 Tex. Cr. R. 416. Wash. State v. Mann, 81 P. 561, 39 Wash. 144. 44 Swain v. State, 101 S. B. 539, 149 Ga. 629. 4BAla. Carr v. State, 85 So. 852, 17 Ala. App. 539; McKlnney v. State, 32 So. 726, 134 Ala. 134. Ga. Price v. State, 40 S. E. 1015, 114 Ga. 855. Ky. Dugan v. Commonwealtu, 43 S. W. 418, 102 Ky. 241, 19 Ky. I^w Rep. 1273. Mo. State V. Thomas, 157 S. W. 330, 250 Mo. 189. N. J. Roesel v. State, 41 A, 408, 62 N. J. Law, 216. N. M. State V. Ascarate, 153 P. 1036, 21 N. M. 191, writ of error dis- missed (1917) Ascarate v. State of New Mexico. 38 S. Ct. 8, 245 U. S. 625, 62 L. Ed. 517. Okl. Berry v. State, 111 P. 676, 4 Okl. Or. 202, 31 L. R. A. (N. S.) 849. Or. State v. Humphrey, 128 P. 824, 63 Or. 540; State v. Roselair, 109 P. 865, 57 Or. 8. Tex. Sharp v. State, 197 S. W. 207, 81 Tex. Cr. R. 256; Belcher v. State, 161 S. W. 459, 71 Tex. Cr. R. 646. 46 Ala. 'Machen v. State, 85 So. 857, 17 Ala. App. 427; Johnson v. State, 59 Ala. 37; Bob v. State, 32 Ala. 560. Cal. People v. Haney (App.) 189 P. 338. D. C. Lorenz v. United States, 24 App. D. O. 337. Fla. Stiner v. State, 83 So. 565, 78 Fla. 647; Kirby v. State, 32 So. 836, 44 Fla. 81. Ind. Hank V. State, 46 N. E. 127, 148 Ind. 238; Id., 47 N. E. 465, 148 Ind. 238. Kan. State v. Hayes, 187 P. 675, 106 Kan. 233. Ky. Pearsall v. Commonwealth, 92 S. W. 589, 29 Ky. Law Rep. 222. Mo. Hector v. State, 2 Mo. 166, 22 Am. Dec. 454. Mont. State V. Berberick, 100 P. 209, 38 Mont. 423, 16 Ann. Cas. 1077 ; State V. Sherman, 90 P. 981, 35 Mont. 512, 119 Am. St. Rep. 869. Nev, State v. Williams, 102 P. 974, 31 Nev. 360. 187 QUESTIONS OF LAW IN CRIMINAL CASES §101 not to have been voluntary ; *'' but the rule, supported by the great weight of authority, is that, where the evidence is conflict- ing as to whether a confession was made voluntarily, and the court permits the confession to go to the jury, the -question as to its voluntary character is ultimately to be decided by the jury, who should be instructed to disregard the confession if they find irom the evidence that it was procured by threats or promises.** If the court has decided that a confession offered in evidence is N. J. state V. Hernia, 53 A. 85, ■68 N. J. Law, 299 ; State v. Young, 51 A. 939, 67 N. J. Law, 228. Or, State V. Seymour, 134 P. 7, 66 Or. 123 ; State v. Spanos, 134 P. 6, 66 Or. 118; State v. Blodgett, 92 P. 820, 50 Or. 329. S. C. State V. Perry, 54 S. E. 764, 74 S. 0. 551. S. D. State V. Landers, 114 N. W. 717, 21 S. D. 606. Wis. Hintz V. State, 104 N. W. 110, 125 Wis. 403. *7Ala. Rice v. State, 85 So. 437, 204 Ala. 104; Machen v. State, 76 So. 407, 16 Ala. App. 170; Godau V. State, 60 So. 908, 179 Ala. 2< ; Kirby v. State, 59 So. 374, 5 Ala. App. 128; Fowler v. State, 54 So. 115, 170 Ala. 65 ; McKinney v. State, •32 So. 726, 134 Ala. 134; Huffman, V. State, 30 So. 394, 130 Ala. 89; Browifv. State, 27 So. 250, 124 Ala. 76 ; Burton v. State, 107 Ala. 108, 18 So. 284; Redd v. State, 69 Ala. 255; Matthews v. Same, 55 Ala. 65, 28 Am. Rep. 698; Washington v. State, 53 Ala. 29. Md. McCleary v. State, 89 A. 1100, 122 Md. 394. Miss. Hunter v. State, 21 So. 305, 74 Miss. 515. Compare Kinsey v. State, 85 So. 519, 204 Ala. 180; Garrard v. State, 50 Miss. 147. *8 (IT. S.) Wilson V. United States, 162 U. S. 613, 16 Sup. Ot. 895, 40 L. Ed. 1090 ; (D. C. N. X.) United States V. Oppenbeim, 228 F. 220. judgment reversed Oppenheim v. IFnited States, 241 F. 625, 154 O. O. A. 383. Colo. Martinez v. People, 132 P. 64, 55 Colo. 51, Ann. Oas. 19140, 559. Ga. Oantrell v. State, 80 S. E. 649, 141 Ga. 98; Dawson v. State, 59 Ga. 333. 111. People V. Colvin, 128 N. E. 396, 294 111. 196. Iowa. State v. Bennett, 121 N. W. 1021, 143 Iowa, 214 ; State v. Foster, 114 N. W. 36, 136 Iowa, 527; State V. Wescott, 104 N. W. 341, 130 Iowa, 1; State v. Storms, 85 N. W. 610, 113 Iowa, 385, 86 Am. St. Rep. 380. Mass. Commonwealth v. Sher- man, 124 N. E. 423, 234 Mass. 7; Commonwealth v. Antaya, 68 N. E. 331, 184 Mass. 326; Commonwealth V. Burrough, 162 Mass. 513, 39 N. E. 184; Commonwealth v. Piper, 120 Mass. 185. Mich. People V. McClintic, 160 N. W. 461, 193 Mich. 589, L. R. A. 19170, 52; People v. Prestige, 148 N. W. 347, 182 Mich. 80; People v. Trine, 129 N. W. 3, 164 Mich. 1; People V. Barker, 27 N. W. 539, 60 Mich. 277, 1 Am. St. Rep. 501. Mo. State v. Jones, 171 Mo. 401, 71 S. W. 680, 94 Am. St. Rtep. 786; State V. 'Moore, 61 S. W. 199, 160 Mo. 443. N. M. State t. Armijo, 135 P. 555, 18 N. M. 262. N. J. Roesel v. State, 41 A. 408, 62 N. J. Law, 216. N. Y. People v. Roach, 109 N. to. 618, 215 N. Y. 592, Ann. Uas. 1917a, 410; People v. Randazzio, 87 N. E. 112, 194 N. Y. 147 ; People v. Brasch, 85 N. E. 809, 193 N. Y. 46. Ohio. Spears v. State, 2 Ohio St. 583. Pa. Commonwealth v. Aston, 75 A. 1019. 227 Pa. 112. S. O. State V. Rogers, 83 S. E. 971, 99 S. O. 504. S. D. State v. Montgomery, 128 N. W. 718, 26 S. D. 589 ; State v. Al- lison, 124 =« and 'a party has a right, not only to tender his own theory of the cause, but likewise, without waiving his own theory, to tender instructions to meet the theory; of the opposite party.^* In a criminal case the trial judge must state the contentions of both the state and the defendant,^* and charge on all the is- sues made by the testimony, whether the same are raised by the testimony of the accused or some ^. other witness,*^ and the con- tentions of the defense regarding which instructions are to be given are not confined exclusively to the contentions of the de- fendant in his statement to the jury, but include such as may be made and argued by his counsel before the court and jury,''® and the trial court should fairly and freely submit for the considera- tion of the jury any issue or theory, favorable to the accused, pre- sented by the evidence.*' • In some jurisdictions the court may be required to declare to the jury its judicial knowledge of relevant facts.** § 119. Some limitations upon the general rule requiring instruc- tions The rule that a party has a right to have the jury instructed upon his theory' of the case does not apply, if his theory is con- trary to the law applicable to the case.*® The trial court is not required to give a formal statement of the issues to the jury; it derailment of a train is alleged to be law therein embodied are sound. St. due to the negligence of defendant in Louis, I. M. & S. Ry. Co. v. Hatch, 94 certain specified particulars, and the S. W. 671, 116 Tenn. 580. railroad offers evidence of facts which 22 Stevens & Elkins v. Lewis-Wil- it claims caused the accident, and son-Hicks Co., 182 S. W. 840, 168 Ky. which would relieve it from responsi- 648, judgment modified on rehearing bility, the court should present both 185 S. W. 873, 170 Ky. 238; Crow v. theories to the jury. St. Louis & S. Burgin (Miss.) 38 So. 625; Miller & F. R. Co. V. Posten, 124 P. 2, 31 Okl. Co. v. Lyons, 74 S. E. 194, 113 Va. 275. 821. 2 3 Ziehme v. Metz, 157 111. App. 543. Right of accused. Defendant in a 24 Parks v. State, 100 S. E. 724, 24 criminal case is entitled to a proper, Ga. App. 243 ; Banks v. State, 89 Ga. specific instruction applied to the facts 75, 14 S. E. 927 ; Snowden v. State, 12 of the case developed by the evidence, Tex. App. 105, 41 Am. Rep. 667 ; Davis notwithstanding the giving of a gen- v. State, 10 Tex. App. 31. eral instruction on the essential ele- 2 5 Medford v. State, 216 S. W. 175, ments of the offense and the necessity 86 Tex. Cr. R. 237. of establishing them beyond a reason- "« Autrey v. State, 100 S. E. 782, 24 able doubt. Hipes v. State, 73 Ind. 39. Ga. App. 414. It is held, however, that where 27 Peyton v. State, 183 P. 639, 16 the court correctly lays down the law Okl. Cr. 410; Jones v. State, 216 S. W. applicable to the case, without under- 884, 86 Tex. Cr. R. 371. taking to state the theory of either 2 s state v. Magers, 57 P. 197, 35' party, it is not error to refuse instruc- Or. 520. tions embracing the theory of one 29 Sturm v. Central Oil Co., 156 111. party, even though the propositions of App. 165. §119 INSTRUCTIONS TO JURIES 216 being sufficient if it directs the jury as to the facts necessary to justify a recovery and states what will defeat a recovery.** It is proper to refuse instructions which are not necessary to enable the jury to perform their duty.*^ Only such instructions should be requested as bear upon the law of the case and will aid the jury in trying and determining the issues, as unnecessary instruc- tions afford opportunities for error and are burdensome to the courts, and are calculated to confuse and mislead the jury.** Thus a refusal to charge as to an obvious fact,** or on a matter of fact which has been made plain by the evidence and as to which no doubt can exist in the minds of the jury, is not error;** nor is it error to refuse to charge as to matters of common knowledge and 80 Kenny v. Bankers' Accident Ins. Co. of Des Moines, 113 IS. W. 566, 136 Iowa, 140. 31 U. S. (0. C. Mass.) Locke v. United States, Fed. Cas. No. 8,442, 2 Cliff. 574. Cal. Cody v. Market St. Ry. Co., 82 P. 666, 148 Cal. 90. Fla. Randall v. Parramore, 1 Pla. 409. Mo. Oorbitt V. Mooney, 84 Mo. App. 645. N. C. Duckwortli v. Orr, 36 S. E. 150, 126 N. C. 674. Tex. Stark v. Burkitt (Civ. App.) 120 S. W. 939. Wasb. Lambert v. La Conner Trading & Transportation Co., 79 P. 608, 37 Wasb. 113. Wis. Burns v. Town of Elba, 32 Wis. 605. In Oregon, a statute requiring the court, in charging the jury, to state all matters of law which the court thinks necessary for their informa- tion in giving their verdict, does not make it the duty of the court, in the absence of a request, to charge on all collateral matters. State v. Smith, 83 P. 865, 47 Or. 485. Instructions urith respect to dis- position of an accused, acquitted on ground of insanity. Under a statute providing that In charging the jury the court must state to them all matters of law which are necessary for their information in giving their • verdict, it is not necessary to instruct ' as to what is done with one acquitted on the ground of insanity, but defend- ant's counsel, In argument, may call attention thereto. Copenhaver v. State, 67 N. B. 453, 160 Ind. 540. Wbere an affidavit for continu- ance was admitted as the deposi- tion of the absent witness, and as such read to the jury, it was not error for the court not to instruct them spe- cially that it was to be treated as the deposition. Deitz v. Regnier, 27 Kan. 94. Effect of pleadings. Although it is the province of the court to deter- mine from the pleadings what allega- tions are admitted or denied, instruc- tions to the jury on the effect of the pleadings can only be demanded as of right when a necessity for them ex- ists. Fannon v. Robinson, 10 Iowa, 272; Potter v. Wooster, Id., 334. But a new trial will be granted, where the jury is not instructed by th"e court, on the ground that the case is too clear for one of the parties to render such instruction useful,- and the jury find for the other party. Page V. Pattee, 6 Mass. 459. 32 Farnsworth v. Tampa Electric Cq., 57 So. 233, 62 Fla. 166; State v. Donnelly, 180 Mo. 642, "32 S. W. 1124. Tbe extent of the court's duty to instruct Is to give such instruc- tions as are correct in law, adapted to the issues, and sufficient for the guid- ance of the jury. Baer v. Baird Mach. Co., 79 A. 673, 84 Conn. 269. 83 People V. Scott, 141 P. 945, 24 Cal. App. 440; Keys v. State, 70 So. 457, 110 Miss. 433. 3 4 Bell v. Chicago, B. & Q.Ry. Co., 74 Iowa, 343, 37 N. W. 768; Edwards V. Schreiber, 153 S. W. 69, 168 Mo. 217 NECESSITY OF INSTEUCTIONS IN GENERAL §119 €xperience of all men who have arrived at years of discretion,*'^ and it is proper to refuse an instruction on a matter as much within the knowledge of the jury as of the judge.*® It is not the province of the court to give to the jury a statement which is true as a matter of fact, and is a plain common-sense proposition, but is not a legal proposition.*'" The court is not required to instruct the jury as to matters of art or science,** and is not bound to tell the jury that, according to the principles of natural philosophy or of physics, one fact necessarily results as a consequence from an- other fact.** The reasons for the giving of instructions need not be _ incorporated therein,*" and the giving of a wrong, reason for an instruction otherwise correct will not render it improper.*^ A statute which provides that the court shall give such instruc- tions upon the law as may be necessary cannot be considered mandatory to the extent of making it obligatory upon the court to instruct as to the law of a case, where no instructions are asked and no questions of law are involved.*" In criminal cases in some jurisdictions the 'court cannot be required to instruct as to App. 197; Fanners' Bank v. Fudge, 82 S. W. 1112, 109 Mo. App. 186; Missouri, K. & T. Ey. Co. of Texas v. Box (Tex. Civ. App.) 93 S. W. 134; Thomson Bros. v. Lynn, 81 S. W.- 330, 36 Tex. Civ. App. 79. 3 5 IT, S. (C. 0. A. Ark.) Lesser Cot- ton Co. V. St Louis, I. M. & S. Ry. Co., 114 F. 183, 52 C. C. A. 95. ■ Cal, In re Nutt's Estate, 185 P. 393, 181 Cal. 522; Higginsv. Williams, 45 P. 1041, 114 Cal. 176; Davis v. Mc- Near, 101 Cal. 606, 36 P. 105. Iowa. Bailey v. City of Le Mars, 179 N. W. 73. Mo, Williams v. St. Louis, M. & S. E. R. Co., 96 S. W. 307, 119 Mo. App. 663; State v. Garth, 65 S. W. 275, 164 Mo. 553. .Advising jury to consnlt togeth- er. That part of defendant's request- ed instruction to efiCect that jury should consult with one another about the ease, the evidence, etc., and in case of difference of opinion talk over the case carefully, etc., involved a mere commonplace, and its refusal was not error, especially where court charged to that efCect. People v. Epperson, 176 P. 702, 38 Cal. App. 486. 88 Birmingham Railway & Electric Co. V. Wildman, 24 So. 548, 119 Ala. 547. .37 Ogleshy v. Missouri Pac. Ry. Co., 150 Mo. 137, 37 S. W. 829, reversed on rehearing 51 S. W. 758, 150 Mo. 137. Statement as to mental capacity of boy. A request to charge that the undisputed evidence shows that intes- tate was a bright boy of his age and had more mental capacity than the average boy of his age was properly refused as asserting no proposition of law. Moss V. Mosley, 41 So. 1012, 148 Ala. 168. 3 8 Rowland v. Marine Ins. Co. of Alexandria (C. C. D. C.) Fed. Cas. No. 6,798, 2 Cranch, 0. C. 474; Sewanee Mln. Co. V. Best, 3 Head (Tenn.) 701. 39 Case V. Weber, 2 Ind. 108. *o King Solomon Tunnel & Develop- ment Co. V. Mary Verna Mining Co., 127 P. 129, 22 Colo. App. 528; Strong V. Kadlec, 163 111. App. 298; Corn Ex- change Nat. Bank ^V. Ochlare Orchards Co., 150 N. W. 651, 97 Neb. 536. " Marion v. State, 20 Neb. 233, 29 N. W. 911, 57 Am. Rep. 825 ; Rupp v. Orr, 31 Pa. 517 ; State v. Garvin, 26 S. B. 570, 48 S. C. 258. 42 Hamill v. Hall, 4 Colo. App. 290, 35 P. 927. § 120 INSTRUCTIONS TO JURIES 218- the law,** and in some other jurisdictions instructions are not required in prosecutions for misdemeanors.** § 120. Necessity of general instructions in 'addition to those given on request In some jurisdictions the court need not instruct generally of its own motion, in addition to giving requested instructions,*^ where the instructions so given sufficiently cover the case;** but, if the instructions given on request contain only separate and dis- connected propositions, a failure to give a general charge in the court's own language will be erroneous,*' and in some jurisdic- tions there are mandatory statutes requiring the court at the con- clusion of arguments of counsel to give general instructions to the jury.*^ *3 Esterllne v. State, 66 A. 269, 105 Md. 629; Baltimore & T. Turnpike Eoad V. State, 63 Md. 573, 1 A. 285. ** State V. Poundstone, 124 S. W. 79, 140 Mo. App. 399 ; State v. O'Con- nor, 65 Mo. App. 324 ; Goode v. State, 171 S. W. 714, 75 Tex. Cr. R. 550. 46 Reasoner v. Brown, 19 Ark. 234; Davis V. Michigan Cent. R. Co., Ill N. "W. 76, 147 Mich. 479; Steiner V. Anderson (Tex. Civ. App.) 130 S. W. 261 ; Dejarnette v. Commonwealth, 75- Va. 867. *e Neihardt v. Kilmer, 12 Neb. 35,. 10 N. W. 531. *7 Bowman v. Fuher, 11 Ohio Cir. Ct. R. 231, 5 O. C. D. 218. *s Cleveland v. Emerson, 99 N. E.. 796, 51 Ind. App. 339. 219 APPLICABILITY TO PLEADINGS AND EVIDENCE § 121 CHAPTER X KBLATION AND APPLICABILITY OF INSTRUCTIONS TO PLEADINGS AND EVIDENCE A. Rule Against Giving Absteact Instbuctions § 121. In general. 122. Limitations of rule. 123. Specific applications of rule. 124. W^hat are abstract instructions. B. Instbuctions as Affected oe Conteolled bt the Pleadings 1. In Civil Cases 125v Rule that instructions must not be broader than the pleadings. 126. Scope of rule against broadening issues by instructions. 127. Instructions on matters outside the pleadings, but shown by the evi- dence. 128. Declaring legal effect of evidence not pertinent to issues raised by the pleadings. 129. Effect of failure to object to evidence upon issues outside scope of pleadings. 130. Specific applications of mile against broadening issues. 131. Rule that Instructions must not be narrovrer than the pleadings. 132. Instructions considered with reference to complaint containing more than one count. 2. In Criminal Cases 133. Rule that instructions should conform to allegations of indictment or to issues raised by pleadings. 134. Limitations of rule. 135. Instructions on conspiracy, although not alleged in indictment. 136. Instructions where indictment contains more than one count, or where several distinct criminal acts are proved. O. Applicability of Instbuctions to the Evidence 137. Rule that instructions must be based on the evidence. 138. Rule in criminal cases. 139. Evidence excluded or withdrawn, or improperly admitted. 140. Sufficiency of evidence to support instructions. 141. Who to determine question of sufiiciency of evidence. 142. Effect of violation of rule. D. Instbuctions Excluding oe Ignoeing Issues, Defenses, ob Evidence 143. General rule. 144. Ignoring evidence. 145. Limitations oi rule, A. Rule against Giving Abstract Instructions § 121. In general The practice of announcing correct general principles of law, without applying them to particular phases of the evidence, is § 121 INSTRUCTIONS TO JURIES 220 not to be commended/ and the modern tendency is to depart from the former practice of giving general or abstract instruc- tions and to charge in as specific and concrete a form as possible.*^ Instructions, therefore, which announce mere abstract principles of law, without specific application to the case in hand, are prop- erly refused,* and while, if the principle enunciated is correct and 1 Southern Antliracite Coal Co. v. Bowen, 124 S. W. 1048, 93 Ark. 140. 2 Louisville & N. R. Co. v. King's Adm'r, 115 S. W. 196, 131 Ky. 347. 3 Ala. Atlanta B. & A. R. Co. v. Ballard, 82 So. 470, 203 Ala. 220; Mobile County v. Linch, 73 So. 423, 198 Ala. 57. Ark. Helena Gas Co. v. Rogers, 147 S. "W. 473, 104 Ark. 59; Ong Chair Co. v. Cook, 108 S. W. 203, 85 Ark. 390. Cal. Conlin v. Southern Pac. B. Co., 182 P. 67, 40 Cal. App! 733; Schmidt v. Union Oil Co. of Califor- nia, 149 P. 1014, 27 Cal. App. 366. Conn. Kelley v. Town of Torring- ton, 68 A. 855, 80 Conn. 378. Fla. American Mfg. Co. v. A. H. McLeod & Co., 82 So. 802, 78 Fla. 162. HI, People V. Adams, 124 N. E. ms, 289 111. 339 ; Thome v. Southern Illinois Ry, & Power Co., 206 111. App. '2^2; Sanboeuf v. Murphy Const. Co., 202 111. App. 548 ; Born v. Schrieber, 199 111. App. 101; Hardin v. City of Moline, 179 111. App. 101; Fisher v. Leesman, 168 111. App. 606; Grimm V. Donk Bros. Coal & Coke Co., 161 111. App. 101; King V. Gray, 160 111. App. 259 ; Perido v. Chicago, B. & Q. R. Co., 144 111. App. 446. Iowa. Withey v. Fowler Co., 145 N. W. 923, 164 Iowa, 377. Kan, Lebanon State Bank v. Gar- ber, 181 P. 572, 105 Kan. 44; State V. Menlicott, 9 Kan. 257. Ky. Burton Const. Co. v. Metcalfe, 172 S. W. 698, 162 Ky. 366; City of Louisville V. Uebelhor, 134 S. W. 152, 142 Ky. 151. Md, Mutual Life Ins. Co. of New York V. Murray, 75 A. 348, 111 Md. 600. Mich. Fors.v. Fors, 123 N. W. 579, 159 Mich. 156. Minn, McClure v. Village of Browns Valley, 173 N. W. 672, 143 Minn. 339, 5 A. L. R. 1168. Mo, Seago v. Paul Jones Realty Co., 170 S. W. 372, 185 Mo. App. 292. N, H. Osgood V. Maxwell, 95 A. 954, 78 N. H. 35. N. Y. Hine v. Bowe, 114 N. Y. 350,. 21 N. E. 733. N, C, Edwards v. Western Union Telegraph Co., 60 S. E. 900, 147 N, C. 126. Tes. Prentice v. Security Ins. Co. (Civ. App.) 153 S. W. 925. Utah, Emelle v. Salt Lake City,. 181 P. 266, 54 Utah, 360. Vt, Green v. StockweU, 89 A. 870,. 87 Vt. 459. Va. Washington & O. D. Ry. v. Ward's Adm'r, 89 S. E. 140, 119 Va. 334. W, Va, State v. Ringer, 100 S. B. 413, 84 W. Va. 546. Wis, Blankavag v. Badger Box & Lumber Co., 117 N. W. 852, 136 Wis. 380. Compaiing liability of » corpo- rate litigant to that of an indi- vidual. In an action against a town, based upon its alleged negligence in constructing and maintaining certain culverts across the grade of one of its highways, whereby surface water was collected and discharged upon the plaintiff's land, to her injury, the trial court did not err in refusing to- charge the jury that a town, in the disposition of surface water, has the same rights, and is subject to the same liabilities, as an Individual, for the reason that it was an abstract proposition. Oftelie v. Town of Ham- mond, 80 N. W. 1123, 78 Minn. 275. In Ohio it is held, however, that if a request is a correct statement of the law and pertinent to the issue it should be given, notwithstanding the request is an abstract proposition of law and requires construction as to its application. Cleveland, P. & E. R. Co. V. Nixon, 21 Ohio Cir. Ct. R. 736, 12 O. O. D. 79. 221 APPLICABILITY TO PLEADINGS AND EVIDENCE §121 applicable to the case, it may be sometimes proper to give such an instruction,* the general rule is that it is objectionable and should not be given.^ On the contrary, instructions should be predicated upon the issues made by the pleadings and the facts appertaining to such issues, furnished by competent evidence introduced at the trial.® A charge which applies to the facts of a case the rules of law which govern the issues, and states the questions which the jury must answer, is more useful than ab- stract propositions or dissertations on sound theories, concerning the application of which to the issues the jury are left in doubt.' Accordingly instructions which submit to the jury issues not *U. S. (C. C. A. Mich.) Curcuru V. Peninsular Ellectric Light Co., 258 F. 785, 170 C. C. A. 79. Ala. McCutchen v. Loggins, 109 Ala. 457, 19 So. 810. Fla. Gracy v. Atlantic Coast Line R. Co., 42 So. 903, 53 Fla. 350. ni, Lipsey v. People, 81 N. E. 348, 227 111. 364; Riggin v. Keck, 203 111. App. 87; Hoehn v. East Side Levee & Sanitary Dist., 203 111. App. 48; Eaton V. Marion County Coal Co., 173 lU. App. 444, judgment affirmed 101 N. E. 58, 257 111. 567 ; East St. Louis Ry. Co. V. Gray, 135 111. App. 642; Olcese V. Mobile Fruit & Trading Co.,' 112 111. App. 281, judgment affirmed 71 N. E. 1084, 211 111. 539 ; Norton v. Volzke, 54 111. App. 545; Little v. Munson, 54 111. App. 437. Ind. Grand Rapids & I. Ry. Co. V. Jaqua, 115 N. B. 73, 66 Ind. App. 113; Behymer v. State, 95 Ind. 140. Mo. Cool V. Petersen, 175 S. W. 244, 189 Mo. App. 717. Neb. Strong v. State, 88 N. W. 772, 63 Neb. 440. Tenn. Knoxville Iron Co. v. Dob- son, 15 Lea, 409. Tex. Martinez v. Bruni (Civ. App.) 216 S. W. 655; Goldstein v. Cook (Civ. App-) 22 S. W. 762. W. Va. State v Long, 108 S. E. 279. B Ala. Montgomery-Moore Mfg. Co. v.. Leith, 50 So. 210, 162 Ala. 246. Ark. Warren Vehicle Stock Co. V. Siggs, 120 S. W. 412, 91 Ark. 102. Ga. Clements v. Citizens' Bank- ing Co. of Eastman, 85 S. E. 935, 16 Ga. App. 636. 111. Cleveland, 0., C. & St. L. Ry. Co. V. Henry, 143 111. App. 265, judg- ment affirmed Henry v. Cleveland, C, C. & St. L. By. Co., 86 N. E. 231, 236 111. 219 ; Diefenthaler v. Hall, 116 111. App. 422. Ind. Town of Salem v. Goller, 76 Ind. 291. Iowa. Mitchell v. Des Moines City Ry. Co., 141 N. W. 43, 161 Iowa, 100. Kan. Meyer v. Reimer, 70 P. 869, 65 Kan. 822. Ky. American Book Co. v. Archer, 186 S. W. 672, 170 Ky. 744. Mo. Hudgings v. Burge (App.) 194 S. W. 886; Edwards v. Lee, 126 S. W. 194, 147 Mo. App. 38; State v. Elsey, 100 S. W. 11, 201 Mo. 561. Mont. Surman v. Cruse, 187 P. 890. N. H. Smith V. Bank of New Eng- land. 54 A. 385, 72 N. H. 4. . Okl. Holmes v. Halstid, 183 P. 969, 76 Okl. 31 ; Chickasaw Compress Co. V. Bow, 149 P. 1166, 47 Okl. 576. Utah. State v. Anselmo, 148 P. 1071, 46 Utah, 137; Smith v. Clark, 106 P. 653, 37 Utah, 116, 26 L. R. A. (N. S.) 953, Ann. Cas. 1912B, 1366. Va. Newport News & O. P. Ry. & Electric Co.- v. McCormick, 56 S. E. 281, 106 Va. 517. W. Va. Frank v. Monongahela Valley Traction Co., 83 S. B. 1009, 75 W. Va. 364 ; Claiborne v. Chesapeake & O. Ry. Co., 33 S. E. 262, 46 W. Va. 363. Louisville & N. R. Co. v. Moore, 150 S. W. 849, 150 Ky. 692. 7 Frizzell v. Omaha St. Ry. Co. (C. 0. A. Neb.) 124 F. 176, 59 C. C. A. 382; Abbitt v. Lake Brie & W. Ry. Co., 50 N. E. 729, 150 Ind. 498. § 121 INSTRUCTIONS TO JUfilES 222 authorized or made by the pleadings or evidence are erroneous,* and it is proper to refuse instructions which, although correctly • 8 Ariz. Gila Valley G. & N. R. Co. V. Lyon, 71 P. 857, 8 Ariz. 118. Ark. St. Louis, I. M. & S. R. Co. V. Thurman, 161 S. W. 1054, 110 Ark. 188. Cal, Crabbe v. Mammoth Channel Gold Mining Co., 143 P. 714, 168 Cal. 50O. Colo. Globe Exp. Co. v. Taylor, 158 P. 717, 61 Colo. 430 ; Creighton v. Campbell, 149 P. 448, 27 Colo. App. 120 ; Atchison, T. & S. F. Ry. Co. v. Adcoek, 88 P. 180, 38 Colo. 369. Ga. Union Cotton Mills v. Harris, 87 S. E. 1029, 144 Ga. 716 ; Adams v. ■«reeson, 85 S. B. 936, 16 Ga. App. 649; Mallett & Nutt v. Watkins, 64 S. E. 999, 132 Ga. 700, 131 Am. St. Sep. 226; Savannah Electric Co. v. Elarbee, 64 S. E. 570, 6 Ga. App. 137. Idaho. Austin v. Brown Bros. Co., 164 P. 95, 30 Idaho, 167; Exchange State Bank v. Taber, 145 P. 1090, 26 Idaho, 723. 111. Lyons v. Joseph T. Ryerson & Son, 90 N. E. 288, 242 111. 409; Himrod Coal Co. v. Clingan, 114 111. App. 568 ; Wabash R. Co. v. Stewart, 87 111. App. 446. Imd. Lake Brie & W. R. Co. v. Reals, 98 N. B. 453, 50 Ind. App. 450; Black V. Duncan, 60 Ind. 522. Iowa. Miller v. Jones, 159 N. W. 671, 178 Iowa, "168; Hardwick v. Hardwick, 106 N. W. 639, 130 Iowa, 230; Blackman v. Kessler, 81 N. W. 185, 110 Iowa, 140. Kan. First Nat. Bank of Arkan- sas City V. Skinner, 62 P. 705, 10 Kan. App. 517. Ky. Polk V. Brown, 10 Ky. Law Hep. (abstract) 541. Md. Davison Chemical Co. v. An- drew Miller Co., 89 A. 401, 122 Md. 134 ; Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 Atl. 338. Micli. Comstock V. Norton, 36 Mich. 277. Miss. Fairfield v. Louisville & N. R. Co., 48 So. 513, 94 Miss. 887, 136 Am. St. Rep. 611. Mo, Small V. Polar Wave Ice & Fuel Co., 162 S. W. 709, 179 Mo. App. 456; Schumacher v. Kansas City Breweries Co., 152 S. W. 13, 247 Mo. 141 ; Hamilton v. Crowe, 175 Mo. 634, 75 S. W. 389. Mont. Mitchell v. Henderson, 97 P. 942, 37 Mont. 515; First Nat. Bank of Portland v. Carroll, 88 P. 1012, 35 Mont. 302. Neb. Harvey v. Harvey, 106 N. W. 660, 75 Neb. 557; Thom v. Dodge County, 90 N. W. 763, 64 Neb. 845; Rath V. Rath, 89 N. W. 612, 2 Neb. (Unof.) 600; Omaha Loan & Trust Co. V. Douglas County, 86 N. W. 986, 62 Neb. 1 ; Swift & Co. v. Holoubek, 84 N. W. 249, 60 Neb. 784, modified on rehearing 86 N. W. 900, 62 Neb. 31. N. Y. Traynor v. New York Cent. & H. R. R. Co., 140 N. Y. g. 625, 155 App. Dlv. 600; Franklin v, Hoadley, 130 N. Y. g. 47, 145 App. Div. 228. N. C. Frick Co. v. Boles, 84 S. E. 1017, 168 N. C. 654. Ohio. Cincinnati Traction Co. v. Forrest, 75 N. E. 818, 73 Ohio St. 1. Okl. St. Louis & S. F. Rv. Co. v. Dobyns, 157 P. 735, 57 Okl. 643. Or. Ringue v. Oregon Coal Co., 75 P. 703, 44 Or. 407. Pa, Saunders v. Philadelphia Rapid Transit Co., 87 A. 420, 240 Pa. 66. S, C. Daniels v. Florida Cent. & P. R. Co., 39 S. B. 762, 62 S. C. 1. Tenn. Louisville & N. R. Co. v. Satterwhite, 79 S. W. 106, 112 Tenn. 185. Tex, Biard & Scales v. Tyler Building & Loan Ass'n (Civ. App.) 147 S. W. 1168 ; Ramsey & Montgomery v. Empire Timber & Lumber Co., 134 S. W. 294, 63 Tex. Civ. App. 576; Set- tle V. San Antonio Traction Co. (Civ. App.) 126 S. W. 15; Houston, E. & W. T. Ry. Co. V. Dolan (Civ. App.) 84 S. W. 297; Galveston, H. & S. A. Ry. Co. v. Herring (Civ. App.) 36" S. W. 129 ; Hartford Fire Ins. Co. v. Josey, 6 Tex. Civ. App. 290, 25 S. W. 685. Wdsh. Kenworthy v. Richmond, 149 P. 348, 86 Wash. 127 ; Buyken v. Lewis Const. Co., 99 P. 1007, 51 Wash. 627. W, Va. Wilhelm v. Parkersburg, M. & I. Ry. Co.,. 82 S. E. 1089, 74 W. Va. 678. 223 APPLICABILITY TO PLEADINGS AND EVIDENCE §121 stating the law, are inapplicable to the issues and- the evidence.* An instruction stating an abstract proposition of law not perti- nent and necessary to the case as made, and not applicable to any inquiry legitimately before the jury tends rather to confuse OU. S. (C. C. A. Mich.) Farmers' & Merchants' Bank of Vandalia, 111., V. Malnes, 195 F. 62, 115 0. C. A. 64 ; (C. 0. A. Ohio) WUliam Sebald Brew- ing Co. V. Tompkins, 221 F. 895, 137 O. C. A. 465; (C. C. A. Tenn.) THem- phis St. Ry. Co. v. Illinois Cent. R. Co., 242 F. 617, 155 C. C. A. 307. Ala. Hampton v; Tant, 73 So. 825, 15 Ala. App. 463; Robinson v. Grot- well, 57 So. 23, 175 Ala. 194 ; South- em Ry. Co. V. W. T. Adams Machin- ery Co.,. 51 So. 779, 165 Ala. 436. Ark. Bocquin v. Theurer, 202 S. W. 845, 133 Ark. 448; Graves v. Melio, 99 S. W. 80, 81 Ark. 347. Cal. Shelton v. Michael, 160 P. 578, 31 Cal. App. 328; In re Budan's Estate, 104 P. 442, 156 Cal. 230. Conn. Goldman v. New York, N. H. & H. B. Co., 75 A. 148, 83 Conn. 59. Ga, Central of Georgia Ry. Co. V. Cooper, 82 S. B. 310, 14 Ga. App. 738; Deen v. Wheeler, 67 S. E. 212, . 7 Ga. App. 507. Idaho. Henry v. Jones, 1 Idaho, 48. ni. Martin v. Hertz, 79 N. E. 558, 224 111. 84, affirming judgment 118 111. App. 297; Leonard v. Excelsior Motor & Mfg. Co., 187 111. App. 81 ; Kohn V. Clarkson, 182 111. App. 519; Schwartz v. Anheuser-Busch Brewing Ass'n, 182 111. App. 338; Pley v. La- vette, 167 111. App. 494; James v. Conklin & Hill, 158 111. App. 640; Parley v. Wabash R. Co., 153 111. App. 493. lud. Evansville Rys. Co. v. Cook- sey, 112 N. E. 541, 63 Ind. App. 482 ; Plummer v. Indianapolis Union Ry. Co., 104 N. E. 601, 56 Ind. App. 615 ; Ross V. Thompson, 78 Ind. 90. Kan. City of Abilene v. Hendricks, 36 Kan. 196, 13 Pac. 121. Mass. Coles V. Boston & M. R. R., Ill N. E. 893, 223 Mass. 408; Hod- gens V. Sullivan, 95 N. B. 969, 209 Mass. 533. Me. Ross V. Maine Cent. R. Co., 96 A. 223, 114 Me. 287 ; Lunge v. Ab- bott, 95 A. 942, 114 Me. 177. Mich. Schoenberg v. Boigt, 36 Mich. 310. Mo. Ludwig V. H. D. Williams Cooperage Co., 136 S. W. 749, 156 Mo. App. 117., Mont. Townsend v. City of Butte, 109 P. 969, 41 Mont. 410. Neb. Usher v. American Smelting & Refining Co., 150 N. W. 814, 97 Neb. 526; Boesen v. Omaha St. Ry. Co., 119 N. W. 771, 83 Neb. 378. N. O. Tilghman v. Seaboard Air Line R. Co., 88 S. E. 315, 167 N. C. 163. Ohio. Lear v. McMUlen, 17 Ohio St. 464. Okl, Grisso v. Crump, 160 P. 453, 61 Okl. 83; Finch v. Brown, 111 P. 391, 27 Okl. 217; First Nat. Bank v. Walworth, 98 P. 917, 22 Okl. 878;, Citizens' Bank of Wakita v. Gamett, 95 P. 755, 21 Okl. 200. Tex. Northwestern Nat. Ins. Co. V. Westmoreland (Civ. App.) 215 S. W. 471; Ablon v. Wheeler & Motter Mercantile Co. (Civ. App.) 179 S. W. 527 ; Freeman v. Ortiz (Civ. App.) 136 S. W. 113; Birge-Forbes Co. v. St. Louis & S. F. R. Co., 115 S. W. 333, 53 Tex. Civ. App. 55. Utah. Manti City Sav. Bank v. Peterson, 93 P. 566, 83 Utah, 209, 126 Am. St. Rep. 817. Vt. Vermont Box Co. v. Hanks, 102 A. 91, 92 Vt. 92; Boville v. Oal- ton Paper Mills, 85 A. 623, 86 Vt. 305. Immaterial matters. It is not error to refuse an instruction on an immaterial matter. Minneapolis Steel & Machinery Co. v. Schalansky, 165 P. 289, 100 Kan. 562 ; Mendenhall v. North Carolina R. Co., 31 S. E. 480, 123 N. C. 275. Definitions. It was not error to refuse an instruction requesting a def- inition of the abstract meaning of a word, apart from the connection in which the jury might find that the word was used. Way v. Greer, 81 N. B. 1002, 196 Mass. 237. § 121 INSTRUCTIONS TO JURIES 224 than to aid them,i" and where it appears that the giving of such an instruction is calculated to mislead, or probably has misled the jury to the prejudice of the party complaining thereof, the judg- ment will be reversed and a new trial granted." The above rule applies to criminal cases.^* ' 10 U. S. (C. C. A. Ark.) Salmon v. Helena Box Co., 158 F. 300, 85 C. C. A. 551. Ark, Holt V. Leslie, 173 S. W. 191, 116 Ark. 433. Ga. Gorman v. Campbell, 14 6a. 137. 111. Bone Gap Banking Co. v. Porter, 203 111. App. 15; Sibert v. Shoal Creek Coal Co., 181 111. App. 11; Latham v. Cleveland, C, C. & St L. Ry. Co., 164 111. App. 559. Ind. T. Missouri, K. & T, Ry. Co. V. Webb, 97 g. W. 1010, 6 Ind. T. 280. Iowa. Long v. Ottumwa Ry. & Light Co., 142 N. W. 1008, 162 Iowa, 11. IHnstrations of misleading in- structions xpitbin rule. In an ac- tion for the death of an automobile driver at an interurban railroad cross- ing, where there was no contention that the driver did not have a right to be where he was and the evidence barely supported an inference of free- dom from contributory negligence, it was misleading to give a correct charge that the driver had a right equal to the interurban company to use the street, from which the jury might have inferred it was not negli- gence for him to go upon the crossing as he did. Galveston-Houston Elec- tric Ry. Co. V. Patella (Tex. Civ. App.) 222 S. W. 615. 11 Ala. State v. Vance, 80 Ala. 356; Beck v. State, 80 Ala. 1; Her- ring V. gkaggs, 73 Ala. 446. Ark. N. P. Sloan Co. v. Barham, 211 S. W. 381, 138 Ark. 350. Cal. Slaughter v. Fowler, 44 Oal. 195. Colo. White V. City of Trinidad, 52 P. 214, 10 Colo. App. 327. 111. Richter v. Tegtmeyer, 167 111. App. 478 ; Pierce v. Decatur Coal Co., 151 111. App. 47; Gilbert v. People, 121 111. App. 423. Ind. Terre Haute, I. & E. Trac- tion Co. V. Ellsbury (App.) 123 N. E. 810. Kan. Zimmerman v. Knox, 8 P. 104, 34 Kan. 245 ; Raper v. Blair, 24 Kan. 374. Mass. Cunningham v. Davis, 175 Mass. 213, 56 N. E. 2. Mo. Grout V. Central Electric R. Co., 131 S. W. 891, 151 Mo. App. 330 ; De Donato v. Morrison, 61 S. W. 641, 160 Mo. 581. Mont. St. John V. Taintor, 182 P. 129, 56 Mont. 204. Neb. Sabin v. Cameron, 117 N. W. 95, 82 Neb. 106 ; Esterly v. Van Slyke, 21. Neb. 611, 33 N. W. 209. N. M. Cerrillos Coal R. Co. v. Deserant, 49 P. 807, 9 N. M. 49. N. Y. Holley V. A. W. Halle Mo- tor Co., 177 N. T. S. 429, 188 App. Div. 798. Ohio. Cincinnati Traction Co. v. Forrest, 75 N. B. 818, 73 Ohio St. 1. Or. Rosenwald v. Oregon City Transp. Co., 163 P. 831, 84 Or. 15. S. C. Holmes v. Weinheimer, 44 S. E. 82, 66 S. 0. 18. Va. Pasley v. English, 10 Grat. 236. An instruction, even though, correct as a proposition of law, if misleading as to the issues, inapplic- able to the evidence, and calculated to prejudice the substantial rights of the losing party, cannot be held to be a harmless error. Perot v. Cooper, 17 Colo. 80, 28 P. 391, .31 Am. St. Rep. 258. 12 11. S. Battle V. United States, 28 S. Ct. 422, 209 U. S. 36, 52 L. Ed. 670, affirming judgment United States V. Battle (C. C. Ga.) 154 F. 540. Ala. Minor v. State, 74 So. 98, 15 Ala. App. 556; Osborn v. State, 73 So. 985, 198 Ala. 21; Jones v. State, 69 So. 66, 193 Ala. 10 ; Anderson v. State (Sup.) 68 So. 56; Forman v. State, 67 So. 583, 190 Ala. 22 ; Kirk- wood V. State, 63 So. 990, 184 Ala. 9, denying certiorari 62 So. 1011, 8 Ala. App. 108 ; Smith v. State, 62 So. 864, 225 APPLICABILITY TO PLEADINGS AND EVIDENCB § 122 § 122. Limitations' of rule On the other hand, as the foregoing statement implies, the giv- ing of such an instruction will not constitute ground for reversal. 183 Ala. 10; Brooks v. State, 62 So. 569, 8 Ala. App. 277, judgment re- versed 64 So. 295, 185 Ala. 1 ; Lewis V. State, 59 So. 577, 178 Ala. 26; Hosey v. State, 59 So. 549, 5 Ala. App. 1; Faulk v. State, 59 So. 225, 4 Ala. App. 177; Cardwell v. State, 56 So. 12, 1 Ala. App. 1; Thomas v. State, 47 So. 257, 156 Ala. 166; Phillips v. State, 47 So. 245, 156 Ala. 140 ; Wash- ington V. State, 46 So. 778, 155 Ala. 2 ; Hays V. State, 46 So. 471, 155 Ala. 40 ; Lawson v. State, 46 So. 259, 155 Ala. 44; Fowler v. State, 45 So. 913, 155 Ala. 21; Eeynolds v. State, 45 So. 894, 154 Ala. 14; Pate v. State, 43 So. 343, 150 Ala. 10; Simmons v. State, 40 So. 660, 145 Ala. 61; Nor- dan V. State, 39 So. 406, 143 Ala. 13; Barnes v. State, 111 Ala. 56, 20 So. 565 ; Scales v. State, 96 Ala. 69, 11 So. 121; Bostic v. State, 94 Ala. 45, 10 So. 602; Floyd v. State, 82 Ala. 16, 2 So. 683; Street v. State, 67 Ala. 87 ; Leonard v. State, 66 Ala. 461; Bain v. State, 61 Ala. 75; Glenn V. State, 60 Ala. 104; Beasley v. State, 59 Ala. 20; Drake v. State, 51 Ala. 30; Clark v. State, 49 Ala. 37; Molette V. State, 49 Ala. 18; Taylor V. State, 48 Ala. 157; Stephen v. State, 40 Ala. 67 ; Donohoo v. State, 36 Ala. 281; Aikin v. State, 35 Ala. 399; Brlster v. State, 26 Ala. 107; Murray v. State, 18 Ala. 727. Ariz. Groce v. Territory, 94 P. 1108, 12 Ariz. 1. Ark. Beavers v. State, 54 Ark. 336, 15 S. W. 1024 ; Johnson v. State, 36 Ark. 242 ; Harris v. State, 34 Ark. 469. Cal. People v. Ashland, 128 P. 798, 20 Cal. App. 168; People v. Carroll, 128 P. 4, 20 Cal App. 41; People V. Emmons, 95 P. 1032, 7 Cal. App. 685; People v. Donnolly, 77 P. 177, 143 Cal. 394 ; People v. Buckley, 77 P. 169, 143 Cal. 375; People v. Hawes, 98 Cal. 648, 33 P. 791; .People V. Murphy, 47 Cal. 103; People v. Kelly, 46 Cal. 356 ; People v. Sanchez, 24 Cal. 17; People v. Hurley, 8 Cal. 390. INST.TO JlTEIES— 15 D. C. United States v. Lee, 4 Mackey, 489, 54 Am. Rep. 293. Fla. Robertson v. State, 60 So. 118, 64 Fla. 487 ; Peeler v. State, 59 So. 899, 64 Fla. 385; West v. State, 46 So. 93, 55 Fla. 200; Washington V. State, 21 Fla. 328 ; Irvin v. State, 19 Fla. 872; Gladden v. State, 12 Fla. 562. Ga. Lindsay v. State, 76 S. E. 369, 138 Ga. 818; Jackson v. State, 18 S. E. 298, 91 Ga. 271, 44 Am. St. Rep. 22 ; Bell v. State, 69 Ga. 752 ; Brown V. State, 28 Ga. 199 ; Johnson v. State, 26 Ga. 611; Pressley v. State, 19 Ga. 192 ; Boyd v. State, 17 Ga. 194 ; Mc- Coy v. State, 15 Ga. 205. Idaho. Territory v. Evans, 2 Idaho, 425, 17 P.- 139. 111. People V. Williams, 88 N. E. 1053, 240 111. 633; Spears v. People, 77 N. E. 112, 220 111. 72, 4 L. R. A. (N. S.) 402 ; Conn v. People, 116 111. 458, 6 N. E. 463; DevUn v. People, 104 111. 504. Ind. Brown v. State, 105 Ind. 385, 5 N. E. 900 ; Bissot v. State, 53 Ind. 408. Iowa. State v. Cessna, 153 N. W. 194, 170 Iowa, 726, Ann. Cas. 1917D, 289; State v. Phipps, 95 Iowa, 487, 64 N. W. 410 ; State v. Thompson, 45 Iowa, 414. Kam. State v.' Lahore, 103 P. 106, 80 Kan. 664; State v. Whitaker, 35 Kan. 731, 12 P. 106 ; State v. Medli- cott, 9 Kan. 257; Lewis v. State, 4 Kan. 296. Ky. Gamble v. Commonwealth, 151 S. W. 924, 151 Ky. 372; Day v. ■Commonwealth, 110 S. W. 417, 33 Ky. Law Rep. 560 ; Greer v. Common- wealth, 63 S. W. 443, 111 Ky. 93, 23 Ky. Law Rep. 489; Deatley v. Com- monwealth, 29 S. W. 741, 16 Ky. Law Rep. 893. La. State v. Warton, 67 So. 350, 136 La. 516; State v. Caron, 42 So. , 960, 118 La. 349; State v. Tibbs, 20 So. 735, 48 La. Ann. 1278; State v. Brackett, 12 So. 129, 45 La. Ann. 46 ; State V. Betk, 6 So. 431, 41 La. Ann. 584; State v. Primeaux, 2 So. 423, 39 § 122 INSTRUCTIONS TO JURIES 226 where no prejudice is shown to the party complaining of it, and La. Ann. 673 ; State v. Simmons, 38 La. Ann. 41 ;' State v. Daly, -37 La. Ann. 576; State v. Ford, 37 La. Ann. 443; State v. Riculfi, 35 La. Ann. 770; State v. Thomas, 34 La. Ann. 1084. Me. State v. Wilkinson, 76 Me. 317; State v. Robinson, 39 Me. 150; State V. Hall, 39 Me. 107. Mass. Commonwealth v. John T. Connor Co., 110 N. B. 301, 222 Mass. 299, L. R. A. 1916B, 1236, Ann. Cas. 1918C, 337. Mich. People V. Considine, 105 Mich. 149, 63 N. W. 196. Minn. State v. Ronk, 98 N. W. 334, 91 Minn. 419 ; State v. Staley, 14 Minn. 105 (Gil. 75). Miss. Wood V. State, 64 Miss. 761, 2 So. 247; Browning v. State, 30 Miss. 656; Preston v. State, 25 Miss. 383 ;- McDaniel v. State, 8 Smedes & M. 401, 47 Am. Dec. 93. Mo. State v. Holmes, 144 S. W. 417, 239 Mo. 469 ; State v. McNamara, 110 S. W. 1067, 212 Mo. 150; State V. Campbell, 109 S. W. 706, 210 Mo. 202, 14 Ann. Cas. 403; State v. Harris, 150 Mo. 56, 51 S. W. 481; State v. Chambers, 87 Mo. 406 ; State v. Ger- ber, 80 Mo. 94 ; State v. Wilforth, 74 Mo. 528, 41 Am. Rep. 330; State v. Ware, 62 Mo. 597 ; State v. Stockton, 61 Mo. 382; State v. Bailey, 57 Mo. 131 ; State v. Rose, 32 Mo. 346 ; State v.- Ross, 29 Mo. 32 ; State v. Houser, 28 Mo. 233; Wein v. State, 14 Mo. 125 ; Nicholas v. State, 6 Mo. 6. Mont. State v. Mitten, 92 P. 969, 36 Mont. 376. Neb. Steinkuhler v. State, 109 N. W. 395, 77 Neb. 331 ; Marion v. State, 20 Neb. 233, 29 N. W. 911, 57 Am. Rep. 825; Caw v. People, 3 Neb. 357. Nev. State v. Ah Loi, 5 Nev. 99; State y. Squaires, 2 Nev. 226. N. J. State V. Skillman, 70 A. 83, 76 N. J. Law, 464, judgment affirmed 76 A. 1073, 77 N. J. Law, 804. N, M. Territory v. Baker, 4 N. M. (Johns.) 117, 13 P. 30. N. Y. People v. McCallam, 3 N. Y Cr R 189 W. <3. State v. Lambert, 93 N. C. 618 ; State v. McCurry, 63 N. C. '33 ; State V. Murph, 60 N. C. 129 ; State V. Clara, 53 N. C. 25 ; State v. Harri- son, 50 N. C. 115; State v. Cain, 47 N. C. 201; State v. Peace, 46 N. C. 251 ; State v. Rash, 34 N. C. 382, 55 Am. Dec. 420. Ohio. Lewis V. State, 4 Ohio, 389. Okl. Kirk V. Territory, 60 P. 797, 10 Okl. 46. Or. State v. Glass, 5 Or. 73. S. C. State V. Petsch, 43 S. C. 132, 20 S. E. 993. Tenn. Crabtree v. State, 1 Lea, 267. Tex. Davis V. State, 151 S. W. 313, 68 Tex. Cr. R. 259; Pettis v. State, 150 S. W. 790, 68 Tex. Cr. R. 221; Woodward v. State, 111 S. W. 941, 54 Tex. Cr. R. 86; Moore v. State, 110 S. W. 911, 53 Tex. Cr. R. 559 ; Baker v. State, 108 S. W. 665, 53 Tex. Cr. R. 14 ; Hooten v. State, 108 S. W. 651, 53 Tex. Or. R. 6; Ballew V. State (Or. App.) 34 S. W. 616; Arbuthnot v. State, 34 S. W. 269, 38 Tex. Cr. R. 509 ; Ratigan v. State, 33 Tex. Cr. R. 301, 26 S. W. 407 ; San- chez v. State (Or. App.) 21 S. W. 45; Levy V. State, 28 Tex. App. 203, 12 S. W. 596, 19 Am. St. Rep. 826; Mc- Vey V. State, 23 Tex. App. 659, 5 S. W. 174 ; Sparks v. State, 23 Tex. App. 447, 5 S. W. 135,; Bramlette v. State, 21 Tex. App. 611, 2 S. W. 765, 57 Am. Rep. 622 ; Adams v. State, 34 Tex. 526 ; Seal V. State, 28 Tex. 491; Daniels v. State, 24 Tex. 389; Burrell v. State, 18 Tex. 713 ; Jones v. State, 13 Tex. 168, 62 Am. Dec. 550; Stewart v. State, 15 Tex. App. 598 ; Williams v. State, 13 Tex. App. 285, 46 Am. Rep. 237; Scott V. State, 10 Tex. App. 112 ; Priesmuth v. State, 1 Tex. App. 480; Rogers v. State, 1 Tex. App. 187 ; Dorsey v. State, 1 Tex. App. 33. Va. Hill V. Commonwealth, 88 Va. 633, 14 S. E. 330, 29 Am. St. Rep. 744; Wash. Telm Jim v. Territory, 1 Wash. T. 63. W. Va, State v. Prater, 43 S. E. 230, 52 W. Va. 132; State v. Thomp- son, 21 W. Va. 741. Wis. Firmeis v. State, 61 Wis. 140, ^0 N. W. 663. Illustrations of instructions held objectionable as abstract. An instruction containing a general dissertation on the rights of accused to life and liberty, the duties of jurors, APPLICABILITY TO PLEADINGS AND EVIDENCE § 122 it appears that the jury could not have been misled thereby/ and the importance of convicting the guilty, informing the jury as to the method by which they were chosen, the reason why they were impaneled, and that they were selected as intel- ligent, and qualified jurors. People V. Davidson, 88 N. E. 565, 240 111. 191. An instruction that the policy of the law deems it better that many guilty persons shall escape rather than one innocent person should be convicted and punished. People v. Darr, 179 111. App. 130, judgment af- firmed 104 N. E. 389, 262 111. 202. A charge that the plea of insanity is sometimes resorted to where aggra- vated crimes have been committed Hinder circumstances which render hopeless all other means of evading punishment, and while such proof, when satisfactorily established, should be viewed as a full and complete de- fense, yet it should be examined into with great care. People v. Methever, &i P. 481, 132 Cal. 326. A charge that if any of the state's witnesses had exhibited bias against defendant, or anger, and had satisfied the jury that they had not testified truly and were not worthy of belief, and the jury thought their testimony should be disregarded, they might disregard it altogether. Wright v. State, 47 So. 201, 156 Ala. 108. A charge that flight of defendant might or might not be considered a circumstance tending to prove guilt, depending on its prompting motive, whether con- sciousness of guilt and apprehension of justice or other and more innocent motive, and the jury might look to ■ the fact that he gave himself up. Bon- durant v. State, 27 So. 775, 125 Ala. 31. A charge, in a prosecution for as- sault, that, where personal property is wrongfully withheld from an own- er, such owner can obtain possession by peaceable means, or, if it comes to his hands, he has a right to hold it against the world. People v. Johns, 190 111. App. 367. An instruction that the mere possession "of any article," whether it can or cannot be used, in the perpetration of a crime, is not of itself suflScient to convict accused, but is merely a circumstance, etc. People v. Weber, 86 P. 671, 149 Cal. 325. A charge, in a prosecution against an agent for embezzlement of money, that the jury could not con- vict defendant unless the evidence sat- isfied them beyond all reasonable doubt that defendant embezzled money of his principal, and that, if the evidence should convince them that he embezzl- ed checks and property, but no money, 13 U. S. (C. C. A. Minn.) North- ern Pac. R. Co. v. Teeter, 63 F. 527, 11 C. C. A. 332. Ala. Eobinson v. Crotwell, 57 So. 23, 175 Ala. 194. Ark. C. H. Smith Tie & Timber Co. V. Weatherford, 121 S. W. 943, 92 Ark. 6. Conn. Smith v. Carr, 16 Conn. 450. Fla. Plorala Sawmill Co. v. Smith, 46 So. 332, 55 Fla. 447. 111. Carney v. Marquette Third Vein Coal Min. Co., 103 N. E. 204, 260 111. 220, affirming judgment 175 111. App. 139; People v. Fuller, 87 N. E. 336, 238 111. 116, affirming judg- ment 141 111. App. 374; Wallace v. City of Farmington, 83 N. E. 180, 231 111. 232; Chicago, R. I. & P. Ry. Co. v. Rathneau, 80 N. E. 119, 225 111. 278, af- firming judgment 124 111. App. 427 ; Tuttle V. Robinson, 78 111.332; People V. Mullen, 179 111. App. 262 ; Neumann V. Neumann, 147 111. App. 218; Com- erford v. Morrison, 145 111. App. 615. Iowa, McGregor v. Armill, 2 Iowa, 30. Mo. Hemphill v. Kansas City, 100 Mo. App. 563, 75 S. W. 179; Clark v. Cox, 118 Mo. 652, 24 S. W. 221 ; Dodds v. Estill, 32 Mo. App. 47. Mont. Hogan v. Shuart, 11 Mont. 498, 28 P. 969. N. C. Evans v. Howell, 84 N. C. 460. Or. Salmon v. Olds, 9 Or. 488. Tex. Gulf, C. & S. P. Ry. Co. v. Reagan (Civ. App.) 34 S. W. 796. Wash. Carstens v. Stetson & Post Mill Co., 14 Wash. 643, 45 P. 313. Charge in favor of party com- plaining. A party cannot complain of an inapplicable charge, which is in his favor, if it have any effect. Mulligan v. Bailey, 28 Ga. 507. §122 INSTRUCTIONS TO JURIES 228 this rule applying iii criminal cases/* and it is not error to state he could not be convicted. Willis v. State, 33 So. 226, 134 Ala. 429. A charge, in' a prosecution for gaming, that the mere fact that money was on the table wher§ a game of cards was being played, without some evi- dence to show that it was being bet or staked on the game, would author- ize a conviction. Butler v. State, 58 S. E. 1114, 2 Ga. App. 623. A charge, in a prosecution for homi- cide, that it was for the jury to say whether the same punishment should be inflicted on the defendant, who had taken the life of a turbulent, revengeful, bloodthirsty, dangerous man, who had recently, only a few hours before, violated and outraged the person of defendant, as though the deceased had been a man of good character and peacable disposition. Harrison v. State (Ala.) 40 So. 57. Where, in a prosecution for theft of a horse, the evidence conclusively showed that it was in possession of a certain person, and there was no testimony that it was in the posses- sion of any one else, it was not error to refuse an instruction that If the horse was in the possession of some other person, or there was a reason- able doubt as to whether it was in the possession of such person at the time it was stolen, defendant should be acquitted. Garcia v. State (Tex. Cr. App.) 61 S. W. 122. On a prose- cution for horse theft, where the tes- timony of the prosecuting witness showed that he had the exclusive care and control of the animal, an in- struction that, if the horse taken from prosecutor was at the time of the taking in the possession and con- trol of a certain other person, defend- ant should be acquitted, was properly refused. Wingo v. State (Tex. Cr. App.) 75 S. W. 29. A charge, in a prose- cution for larceny, that the recent possession of stolen property, while not alone suflBicient evidence to find the possessor thereof guilty of the crime of having stolen such property, may be taken into consideration, with all the other evidence in the case, in determining guilt, and, if the defend- ant offers evidence in explanation of his possession, it is for the jury to say under all the evidence whether or not such explanatory evidence is reasonable. State v. Trosper, 109 P. 858, 41 Mont. 442. Refusal to charge that defendant, indicted for perjury, should be acquitted unless the state had proved beyond a reasonable doubt that the court had jurisdiction of the action in which the perjury was com- mitted was proper, where it appeared from the record of such case in evi- dence that the court had jurisdiction, and defendant made no attempt to prove the contrary. Thompson v. People, 59 P. 51, 26 Colo. 496. Where defendant, in a trial for robbery, de- nied all knowledge of the transaction, the court did not err in refusing an instruction authorizing a conviction of petit larceny, since defendant was either innocent of any offense or guilty of robbery. State v. Moore, 106 Mo. 480, 17 S. W. 658. Where the prosecution has made no attempt to compel accused to submit to a sec- ond physical examination, the right to do so is a mere abstract question, and the refusal of an instruction that the privilege of the accused as a wit- iiess does not extend to such physical circumstances as may exist on his body or about his person is not error. State V. Mehojovich, 43 So. 660, 118 La. 1013. Where, in a prosecution for homicide, there was no evidence to implicate any other person than accused in the crime, the court prop- erly refused an abstractly correct in- struction that the failure of the evi- dence to disclose any othei: criminal agent than accused was not a circum- stance to be considered in determin- ing whether he was guilty of the crime charged, but that he was presumed to be innocent until his guilt was established, and he was not to be prejudiced by the inability of the commonwealth to point any other criminal agency, nor was he called !■» People V. Dean, 58 Hun, 610, 12 N. Y. S. 749 ; Welch v. State, 185 P. 119, 16 Okl. Cr. 513 ; State v. Selby, 144 P. 657, 73 Or. 378 ; Keed v. Com- monwealth, 36 S. E. 399, 98 Va. 817 ; WhitehuTst v. Commonwealth, 79 Va. 556 ; State v. Long, 108 S. B. 279. 229 APPLICABILITY TO PLEADINGS AND EVIDENCE §122 correctly an abstract proposition of law, in the absence of any request that it be explained or enlarged upon ;^® nor is it error to make an abstract statement of legal principles, for the purppse of illustrating and emphasizing the rules governing the points in issue,^^ if the use of such illustration is not misleading^' and the announcement by an instruction of an abstract proposition of law is not cause for reversal, if another part of such instruction or other instructions apply such proposition to the facts of the case.^* on to vindicate Ws own innocence by naming the guilty party. Jessie v. Commonwealth, 71 S. E. 612, 112 Va. 887. Instrnotlons held not improper as being abstract. A charge, in a prosecction for burglary, that the confessions of a defendant while un- der arrest cannot lawfully be used against him, even when they show or tend to show his guilt, unless the de- fendant in connection with such con- fessions makes statements of facts' that are found to be true and that conduce to establish his guilt, such as the finding of stolen property, and that, if the jury find beyond a rea- sonable doubt that the defendant made the statements which the state claims that he made in the presence of the witnesses M. and S., and that the same show or tend to show his guilt, they will not consider said statements, or any part of them, against the defendant for any pur- pose, unless they further find beyond a reasonable doubt that the defend- ant in connection with said state- ments made a statement of facts as to the whereabouts of the watch which has been introduced in evi- dence, and that said statement was found to be true, and that said state- ment conduces to establish his guilt of the offense of burglary alleged. Smith v. State, 111 S. W. 939, 53 Tex. Or. R. 643. A charge, in a prose- cution for burglary, that the princi- pal witness was an accomplice, and that they could not convict upon his testimony alone, that they must be- lieve it to be true, and find other cor- roborating evidence other than the fact of the commission of the crime. Pitts V. State, 182 S. W. 801, 60 Tex. Cr. R. 524. 15 Hanson v. Gaar, Scott & Co., 70 N. W. 853, 68 Minn. 68. 16 Ga. Smith v. Central R. & Banking Co., SO Ga. 526, 5 S. E. 772. Ind. Foss-Schneider Brewing Co. V. 'McLaughlin, 5 Ind. App. 415, 31 N. E. 838. Mass. Jones v. Root, 6 Gray, 435 ; Melledge v. Boston Iron Co., 5 Cush. 158, 51 Am. Dec. 59. Mo. McGrew v. Missouri Pac. Ry. , Co., 109 Mo. 582, 19 S. W. 53. S. C. Baker v. Hornik, 35 S. E. 524, 57 S. C. 213. Tenn. West Memphis Packet Co. V. White, 41 S. W. 583, 99 Tenn. 256, 38 L. R, A. 427. 17 Mason v. Southern Ry. Co., 36 S. E. 440, 58 S. C. 70, 53 L. R. A. 913, 79 Am. St. Rep. 826, rehearing denied 37 S. E. 226, 58 S. C. 582. 18 Central of Georgia Ry. Co. v. Blackman, 68 S. E. 339, 7 Ga. App. 766: First Nat. Bank v. Gatton, 50 N. E. 121, 172 111. 625, affirming 71 111. App. 323; Burdoin v. Town of Trenton, 116 Mo. 358, 22 S. W. 728; McGrpw V. Missouri Pac. Ky. Co., 109 Mo. 582, 19 S. W. 53. Instructions dearly advising jury in tbe concrete. When cor- rect abstract propositions of law are given, and the instructions, consid- ered together, advise the .iury clear- ly and in the concrete, the abstract propositions do not necessarily viti- ate the charge. Denver Tramway Co. V. Owens, 20 Colo. luT, 36 P. 848. Defendants cannot complain that, in an action for the killing of decedent by blasting, the court embodied in the charge, as an abstract proposi- tion, what is known as the "rule of the prudent man" in response to its requests, where, in spedfic Instruc- 123 INSTRUCTIONS TO JURIES 230 § 123. Specific applications of rule The above rule has been applied to instructions on the question of the existence of the relation of carrier and passenger/* or of the relation of partnership,*^* on the question of a dual agency,^^ on the issue of the deliyery of a deed,^^ on the question whether the rule of caveat emptor applied,** on the effect of a railroad ticket,** on the effect of a custom,** on the duties of a carrier,*^ on the question whether a train was run at excessive speed,*' on the ejection of a passenger by force,** on the issue of gross neg- ligence,** on the right to recover for wantonness, as distinguished from negligence,** on the issue of the negligence of an employer in selecting servants,*^ on the duty of a master to make rules,-''* on the duty of a master to guard machinery,** on the question of the assumption of risk,** on the question of contributory neg- ligence,** on the question of the invalidity of a contract as against public policy,*® -on the issue of bad faith or fraud,*'' on questions arising under the statute of frauds,** on the defense of ultra tions, the court correctly applies the law of negligence and contributory cegligence to the facts of the case. Blackwell v. Lynchburg & D. K. Co., Ill N. O. 131, 16 S. E. 12, 17 L. R. A. 729. 32 Am. St. Rep. J86. 19 Hains v. Parkershurg, M. '& l. Ry. Co., 84 S. E. 923, 75 W. Va. 618. 2 Pearson v. Campbell, 12 Ky. Law Rep. (abstract) 637. 21 Schwartz v. Mesehke, 141 P. 175, 92 Kan. 650. 2 2 Irvin V. Johnson, 120 S. W. 1085, 56 Tex. Civ. App. 492. 2 3 Mastin v. Bartholomew, 92 P. 682, 41 Colo. 328. 2* Dixon V. New England R. R., 60 N. E. 581, 179 Mass. 242. 2 5 Pierce v. Aiken (Tex. Civ. App.) 146 S. W. 950. 2" Sullivan v. Fugazzi, 79 N. E. 775, 193 Mass. 518. 2 7 Hamman v. Illinois Cent. R. Co., 188 111. App. 414. 2 8 Missouri, K. & T. Ry. Co. of Tex- as V. Meyers (Tex. Civ. App.) 35 S. W. 421. 2 8 Coe V. Rieker, 101 N. E. 76, 214 Mass. 212, 45 L. R. A. (N. S.) 30; Ann. Cas. 1914B, 1178. 8» Cameron -v. Duluth-Superlor Traction Co., 102 N. W. 208, 94 Minn. 104 ; Hplwerson v. St. Louis & S. Ry. Co., 157 Mo. 216, 57 S. W. 770, 50 L. R. A. 850. 31 Austin & N. W. Ry. Co. v. Plan- nagan (Tex. Civ. App.) 40 S. W. 1043. 32 Oklahoma Portland Cement Co. V. Brown, 146 P. 6, 45 Okl. 476: Lawrence's Adm'r v. Hyde, 88 S. E. 45, 77 W. Va. 639. 8 3 Radic V. Thomas Jackson & Co., 146 N. W. 186, 178 Mich. 618. 31 Springfield Electric Light & Power Co. v. Mott, 120 111. App. 39. 3 5 Carpenter v. Village of Dickey, 143 N. W. 964, 26 (N. D. 176. 3 6 Snow V. Penobscot River Ice Co., 77 Me. 55. 3 7 Rara Avis Gold & Silver Min. Co. V. Bouscher, 9 Colo. 385, 12 P. 433 ; Bayer Steam Soot Blower (Do. V. City of Milan (Mo. App.) 199 S. W. 712; Hewitt v. Steele, 118 Mo. 463, 24 S. W. 440; Purtle v. Casey, 11 Mont. 229, 28 P. 305 ; Addleman V. ' Blanuf acturers' Light & Heat Co., 89 A. 674, 242 Pa. 587. 8 8 Riflenour v. H. C. Dexter Chair Co., 93 N: E. 409, 209 Mass. 70 ; Hug- gins V. Carey (Tex. Civ. App.) 149 S. W. 390. 231 APPLICABILITY TO PLEADINGS AND EVIDENCE § 124 vires,39 on act of God as a defense,** on the question of waiver," on the unreliability of verbal admissions,** on elements cf dam- ages,** on mitigation of damages,** on punitive damages,*^ and on the right to recover the reasonable value of services.*® § 124. What are abstract instructions Whether an instruction is abstract must be determined by ref- erence to the evidence and to the instructions as a whole.*'' An 3 9 City Council of Augusta v. Owens, 36 S. E. 830, 111 Ga. 464. 4 City of Cuthbert v. Gunn, 94 S. E. 637, 21 Ga. App. 442; St. Louis Southwestern Ey. Co. of Texas v." Lewellen Bros. (Tex. Civ. App.) 116 S. W. 116. *t German Ins. Co. v. Goodfriend, 97 S. W. 1098, 30 Ky. Law Rep. 218. 42 Thomas v. Paul, 87 Wis. 607, 58 N. W. 1031. 48 U. S. (Sup.) American R. Co. of Porto Rico v. Didricksen, 33 S. Ct. 224, 227 U. S. 145. 57 L. Ed. 456. Ga. Sammons v. Wilson, 92 S. B. 950, 20 Ga. App. 241; City Council of Augusta v. Owens, 36 S. E. 830, 111 Ga. 464. ,^ Ind. Cleveland, C, C. & St. L. Ry. Co. V. Griswold, 97 N. E. 1030, 51 Ind. App. 497. Iowa. Negley v. Cowell, 91 Iowa, 256, 59 N. W. 48, 51 Am. St. Rep. 344. Mo. Vanderbeck v. Wabash Ry. Co., 133 S. W. 1178, 154 Mo. App. 321 ; Moellman v. Gieze^Kenselmeier Lumber Co., 114 S. W. 1023, 134 Mo. App. 485; Earr v. Kansas City, 105 Mo. 550, 16 S. W. 483. W. Y. Weber v. Kingsland, 21 N. Y. Super. Ct. 415. N. D. Swprds v. McDonell, 154 N. W. 258, 31 N. D. 494 ; Selland v. Nelson, 132 N. W. 220, 22 N. D. 14. Or. Seheurmann v. Mathlson, 136 P. 330, 67 Or. 419. Tex. Gulf, C. & S. F. Ry. Co. v. Jackson, 69 S. W. 89, 29 Tex. Civ. App. 342; Missouri Pac. Ry. Co. v. Mitchell, 75 Tex. 77, 12 S. W. 810. Wash. Paysse v. Paysse, 146 P. 840, 84 Wash. 351. Wis. Dralle v. Town of Reeds- burg, 122 N. W. 771, 140 Wis. 319. 44 Steinman v. John Hall Tailor- ing Co., 163 P. 452, 99 Kan. 699. 4 5 Wilson V. Atlantic Coast Line E. Co., 55 S. B. 257, 142 N. C. 333 ; Reed V. Coughran, 111 N. W. 559, 21 S. D. 257. 46 Bernth v. Smith, 127 N. W. 427, 112 Minn. 72. 47 Cook V. Danaher .Lumber Co., 112 P. 245, 61 Wash. 118. Illustrations of abstract in- structions udtliiii rule. In an ac- tion by a wife to cancel a deed to her brother-in-law alleged to have been procured by coercion of her husband, where the effect of a conveyance by a wife of her separate estate to her husband's creditor to pay the ' hus- band's debts was not involved under the pleadings and evidence, it was error to charge ujjon such subject, though the charge correctly stated the law, MeClellan v. McClellan, 68 S. E. 1025, 135 Ga. 95. A charge, in an action against a president of a bank for misleading a depositor in relation to its financial condition, that fraud must be proved, and Is never presumed. Giddings v. Baker, 80 Tex. 308, 16 S. W. 33. In an ac- tion against a telephone company for negligently permitting its wires along a public highway to remain down so as to endanger the safety of the traveling public, an Instruc- tion that the company, if not other- wise negligent, is not responsible for damages resulting from an unusual ■ storm, which could not have been reasonably foreseen and its conse- quences guarded against, Is properly refused, because it fails to apply the law stated to any issue or evidence in the ease. Snee v. Clear Lake Tel- ephone Co., 123 N. W. 729, 24 S. D. 361. In an action against a tele- phone company for the death of a city lineman while at work on th*e company's pole, an instruction that §124 INSTRUCTIONS TO JURIES 232 instruction is not abstract if there is any evidence from which the where an employ^ chooses a dan- gerous way of performing his work, instead of a safe way, which was equally open to him, he is guilty of negligence which will preclude recov- ery, was properly refused, being ap- plicable only to the relation of mas- ter and servant, which was not In- volved. Tjundy v. Southern Bell Tel- ephone & Telegraph Co., 72 S. E. 558, 90 S. O. 25. A request for a ruling in a writ of entry that demandants, to recover, must rely on the strength of their own title and not on the weakness of the tenant's. Merrick v. Betts, 101 N. E. 131, 214 Mass. 223. An instruction, in an action on a contract, that "if the jury think that any circumstance proven in the case is of greater weight in determining any issue than the oral testimony of witnesses they are at liberty to so decide." Hale Elevator Co. v. Hale, 98 111. App. 430, affirmed 66 N. E. 249, 201 111. 131. An instruction that the opinion of expert witnesses, if opposed to the physical facts prov- ed, must give way to such physical facts. Starett v. Chesapeake & O. Ry. Co., 110 S. W. 282, 33 Ky. Law Eep. 309. An instruction which tells the jury that they should consider the evidence "in the light of the linowledge which you have obtained as men of affairs." Gormley v. Har- tray, 105 111. App. 625. In an Injury action, predicated wholly upon tne statutes of Wisconsin abolishing the fellow servant doctrine as respects railroad employment, and tried throughout upon the theory of lia- bility thereunder, it was error to sub- mit the case to the jury upon the question whether defendant was lia- ble under the federal employer's 11a- bilitv act (Act April 22, 1908, c. 149,- 35 Stat. 65 [U. S. Oomp. St. §§ 8657- 8665]). Creteau v. Chicago & N. W. Ry. Co., 129 N. "W. 855, 113 Minn. 418. An instruction, in an action by a sei-vant for personal injuries to the effect that an employer is under no greater obligation to look after the safety of a servant than the servant is to look after his own safety. West- ern Stone Co. v. Muscial, 63 N. E. 664, 196 111. 382, 89 Am. St. Rep. 325, affirming judgment 96 111. App. 288. An instruction, in an action to recover for the death of plaintifC's intestate by suffocation whUe work- ing in defendant's mine, that if the injury resulted from the consequenc- es of a certain act or omission, but only by means of an intervening cause, from which cause the injury followed as a direct consequence, the law will refer the damage to the last cause. Alabama Consol. Coal & Iron Co. V. Heald, 154 Ala. 580, 45 So. 686. Charges that there could be no recovery in an action for negli- gently constructing and maintaining a drain, if the city used due diligence in selecting the site.. City of Mont- g9mery v. Stephens, 69 So. 970, 14 Ala. App. 274. An instruction, in an action against a city for injuries occasioned by negligence of a bridge tender employed by the city and thai of a helper employed by the tender personally, that the city is not liable for the acts of persons not in its employ. City of Chicago v. O'Malley, 63 N. B. 652, 196 111. 197, affirming judgment 95 111. App. 355. Where the evidence of partnership was in is- sue, but it was not a case of partner- ship established by circumstantial evi- dence, an instruction that it is not nec- essary that a partnership be estab- lished by direct evidence, that it may be shown by circumstances or by facts in evidence from which a part- nership may be inferred, was prop- erly refused as abstract. Rector v. Robins, 102 S. W. 209, 82 Ark. 424. An Instruction that the law will not infer payment from the facts tending to prove it, however fully they sup- port such an inference. Hays v. Hays, 97 N. E. 198, 49 Ind. App. 298. A charge that the degree of care re- quired of a railroad company is that used by a good specialist In the s£lme business. Norfolk & W. R. Co. v. Burge, 84 Va. 63, 4 S. E. 21. In an action against a railroad company for an injury at a crossing, a charge in effect that if the jury should find that the maintenance of gates and watch- men at the crossing was reasonably 233 APPLICABILITY TO PLEADINGS AND EVIDENCE 124 jury might infer the existence of the fact supposed.** An instruc- necessary, and that they were not provided, defendant would be negli- gent, was erroneons, where there was no allegation or proof that the maintenance of gates at the crossing was either authorized or required by any governmental authority, or that gates were the only practical means of rendering the crossing safe, or other showing that would make a failure to maintain gates at the crossing negligence as matter of law. Atlantic Coast Line R. Co. v. Wal- lace, 54 So. 893, 61 Fla. 93. An in- struction, in an action against )a railroad for injuries through fright- ening a horse at a crossing, as to the duty of defendant to use care at the crossing, where the view of the tracks was obstructed. Culbertson v. St. rx>uis, I. M. & S. Ey. Co. (Mo. App.) 178 S. • W. 269. Instructions making it a defense in replevin, if defendant paid part of the purchase price when plaintiff bought the ar- ticles, and plaintiff did not repay or tender to defendant the amount paid by him, and intimating that defend- ant might be the owner of the arti- cles by virtue of such payment for plaintiff, if plaintiff then, or later, made a gift of the articles to de- fendant, are erroneous, as inapplica- ble to the case ; defendant making no claim of a lien, and not basing his title or right of possession on a gift. Woods V. Latta, 88 P. 402, 35 Mont. 9. Where the only issue in an action was whether the defendant purchased a jack of the plaintiff, and there is evidence that it was of some value, an instruction that plaintiff was entitled to a verdict modified so as to Include the conditions that the animal was without any value at the time of the alleged sale, and that the plaintiff made no misrepresentation as to its qualities, is erroneous as being inapplicable to the issues and evidence. Brown v. Emerson, 134 S. W. 1108, 155 Mo. App. 459. In an action against a street railroad for the death of a fireman in a collision between a hose wagon and a ear, it was not error to refuse an instruc- tion that, in determining whether plaintiff's intestate was guilty of contributory negligence, the jury should not take into account the in- stinct of self-preservation, where the attention of the jury was not in any way called to such doctrine. Mc- Bride v. Des Moines City Ry. Co., 109 N. W. 618, 134 Iowa, 398. Where the only issue raised by the pleadings and evidence, in an action for inju- ries in a collision w'th defendant's street car, was wheUher those in charge of the car used all reasonable efforts to prevent the accident after they saw, or should with reasonable care have seen, plaintiff's peril, an instruction as to the relative rights of way of the parties at the place of the accident was erroneously given because having no relation to the Is- sues. Grout V. Central Electric Ry. Co., 131 S. W. 891, 151 Mo. App. 330-. Where, in an action for injuries to a traveler on a defective highway, the answer charged contributory neg- ligence of plaintiff herself, and there was ample ground for a finding that the vehicle was overloaded, a re- quested charge that there was no pretense that plaintiff was guilty of want of ordinary care, and that the question related only to the driver, plaintiff's son, was properly refused. VoUmer v. Town of Fairbanks, 132 N. W. 542, 146 Wis. 630. Where, in trespass for unlawful taking and retention of plaintiff's cattle, coun- sel, in opening for the defense, stat- ed that he did not claim that defend- ant had the right, under the statute,, to take the cattle out of the highway, but that he claimed that they were trespassing on defendant's premises when taken, and plaintiff's evidence showed that they were on the high- way, but not running at large, when defendant took them; the cattle be- ing watched by him and his family, this being contradicted by defend- 4 8 Arkadelphia Lrumber Co. v. As- man, 107 S. W. 1171, 85 Ark. 568; Jacksonville Electric Co. v. Cubbage, 51 So. 139, 58 Fla. 287; Brecher v. Chicago Junction Ry. Co., 119 111. App. 554. § 125 INSTEUCTIONS TO JTJEIES 234 tion in the language of the statute undjer which an indictment was found cannot be considered abstract,** nor is an instruction ab- stract if, according to the theory of one party, supported by some competent evidence, it is not abstract.*" B. Instructions as A]?]?ectbd or Controlled by thb Pleadings 1. In Civil Cases § 125. Rule that instructions must not be broader than the pleadings With an exception to be hereafter noted. Post, § 129, the general rule is that instructions to juries in civil cases should be limited to the questions presented by the pleadings,*^ and that instructions ant's evidence, going to show that they were on his premises at the time, it was held that an instruction that, if they were running at large on the highway, defendant had the right to talie them into his custody, was properly refused, as not based on the evidence or theory of defense. Eklund V. Toner, 80 N. W. 791, 121 Mich. 687. An Instruction, in an ac- tion of trover, that if the parties had been putting wood along a railroad, and the defendants had been taking it up in parcels, then. the defendants had the right to act on this plan, and taking up the wood paid for by the defendants would not make them lia- ble in trover. Nashville, C. & St. L. By. y. Walley, 41 So. 134, 147 Ala. 697. An instruction, in an action on a note which a bank purchased in the regular course of business, the transaction not being usurious, that a bank which charges usury in dis- counting a note cannot be a bona fide purchaser. Hudson v. Repton State Bank, 75 So. 695, 16 Ala. App. 101. Where, in an action for damages through the maintenance of a dam, it neither appeared from the pleadings nor from the testimony that plaintiff was seeking damages that could have been avoided by him, a request- ed instruction as to plaintiff's duty to lessen the loss by properly drain- ing the land' if he could reasonably have done so was properly refused. Auten V. Catawba Power Co., 65 S. E. 274, 84 S. C. 399, judgment modi- fled on rehearing, 66 S. E.. 180, 84 S. C. 399. An instruction, in an action for deflecting surface .water into a sinlc hole, causing injury to plain- tiff's spring, defining a known ana well-defined channel. Killian v. Kil- lian, 57 So. 825, 175 Ala. 224. An instruction in a will contest that un- due influence and mental capacitj' cannot be separated, where the tes- tatrix is of advanced age and suf- fering from a disease affecting her brain and vital powers. Hayes v. Moulton, 80 N. E. 215, 194 Mass. 157. *9 White V. People, 53 N. E. 570, 179 111. 356. 50 Strickland v. Smith, 198 S. W. 690, 131 Ark. 350. 61 TJ. S. (C. C. A. N. J.) Morris V. Beach, 191 F. 34, 111 C. C. A. 566. Ark. St. Louis & S. F. R. Go. v. Vaughan, 105 S. W. 573, 84 Ark. 311. Colo, Reynolds v. Hart, 94 P. 14, 42 Colo. 150. Conn. Eckler v. Wake, 88 A. 869, 87 Conn. 708. Fla. Town of De Funiak Springs v. Perdue, 68 So. 234, 69 Fla. 326. Ga. Southern Ry. Co. v. Oiam- bers, 55 S. E. 37, 126 Ga. 404, 7 U R. A. (N. S.) 926. Idaho, Tarr v. Oregon Short Line R. Co., 93 P. 957, 14 Idaho, 192, 125 Am. St. Rep. 151. 111. Kendall v. Chicago Rys. Co., 185 111. App. 145. 235 APPLICABILITY TO PLEADINGS AND EVIDENCE § 125 submitting to the jury matters outside of the issues made by the pleadings are not only properly refused,^^ but constitute positive Kan. Oil Well Supply Co. v. Johnson, 98 P. 381, 78 Kan. 751. Ky. Mathis v. Bank of Taylors- vUle, 124 S. W. 876, 136 Ky. 634. Md. Coughlin v. Blaul, 87 A. 766, 120 Md. 28; Darby Candy Co. of Baltimore City v. Hoffberger, 73 A. 565, 111 Md. 84. Minn. Hostetter v. Illinois Cent. By. Co., 115 N. W. 748, 104 Minn. 25. Mo. Lorton v. Trail (App.) 216 S. W. 54; Silverthorne v. Summit Lumber Co., 176 S. W. 441, ■ 190 Mo. App. 716; Alexander v. Missouri Pac. Ry. Co., 165 S. W. 1156, 178 Mo. App. 184. N. y. Newman v. Acme Metal Ceiling Co. (Sup.) 134 N. T. S. 518. 52 U. S. (C. C. A. Ohio) Beaver Hill Coal Co. V. Lassilla, 176 F. 725, 100 C. C. A. 283; Republic Iron & Steel Co. V. Tanuszka, 166 F. 684, 92 C. C. A. 280. Ala. Alabama Steel & Wire Co. V. Griffin, 42 So. 1034, 149 Ala. 423. Ariz. Ewing Y. United States, 89 P. 593, 11 Ariz. 1. Arh. Southwestern Telegraph & Telephone Co. v. Abeles, 126 S. W. 724, 94 Ark. 254, 140 Am. St. Rep. 115, 21 Ann. Cas. 1006 ; St. Louis, I. M. & S. Ry. Co. V. Fambro, 114 S. W. 230, 88 Ark. 12. Cal. Medlin v. Spazier, 137 P. 1078, 23 Cal. App. 242; De Gottardi V. Donati, 99 P. 492, 155 Cal. 109. Colo. Rice V. Van Why, 111 P. 599, 49 Colo. 7. Conn. Billings v. McKenzie, 89 A. 344, 87 Conn., 617 ; Leone v. I. & F. Motor Car Co., 80 A. 520, 84 Conn. 463. D. C. Washington, A. & M. V. R. Co. V. Fincham, 40 App. D. C. 412. Fla. Jacksonville Electric Co. v. ^ Sloan, 42 So. 516, 52 Fla. 257. Ga. Georgia, F. & A. Ry. Co. v. Sasser, 61 S. E. 505, 4 Ga. App. 276. Ind. Lake Erie & W. R. Co. v. Sanders (App.) 125 N. E. 793 ; Cleve- land, C, C. & St. L. Ry. Co. v. Smith, 97 N. E. 164, 177 Ind. 524; ^taa. Life Ins. Co. v. Boekting, 79 N. E. 524, 39 Ind. App. 586. Iowa. Dugane v. Hvezda Pokro Icu No. 4, 119 N. W. 141. Kan. Reynolds v. Curry, 105 P. 437, 81 Kan. 443. Ky. Minor v. Gordon, 188 S. W. 768, 171 Ky. 790, modifying judg- ment on rehearing 186 S. W. 480, 170 Ky. 609; Turner & Frazer v. Frazier, 163 S. W. 245, 157 Ky. 388 ; Edge V. Ott, 152 S. W. 764, 151 Ky. 672; Eirk's Adm'r v. Louisville Ey. Co., 98 S. W. 293, 30 Ky. Law Rep. 325 Me. Smith v. Tilton, 101 A. 722, 116 Me. 311; Lunge v. Abbott, 95 A. 942, 114 Me. 177. Micb. In re Keene's Estate, 155 N. W. 514, 189 Mich. 97, Ann. Cas. 1918B, 367; RuthrufiC v. Faust, 117 N. W. 902, 154 Mich. 409. . Minn. Foot, Schulze & Co. v. Porter, 154 N. W. 1078, 131 Minn. 224; Evertson v. McKay, 144 N. W. 950. 124 Minn. 260. Mo. Cotner v. St. Louis & S. P. R. Co., 119 S. W. 610, 220 Mo. 284; National Tube Works Co. v. Ring Refrigerating & Ice Mach. Co., 98 S. W. 620, 201 Mo. 30. Mont. Smith v. Barnes, 149 P. 963, 51 Mont. '202, Ann. Cas. 1917D, 330; Marron v. Great Northern Ry. Co., 12a P. 1055, 46 Mont. 593. N. C. Martin v. Knight, 61 S. E. 447, 147 N. C. 564. Obi. Cassingham v. Berry, 150 P. 139. Or. Clearwater v. Forrest, 143 P. 998, 72 Or. 312; Zanello v. Smith & Watson Iron Works, 124 P. 660, 62 Or. 213. Pa. Poringer v. New Kensington Stone Co., 72 A. 797, 223 Pa. 425. R. I. Eagle Brewing Co. v. Col- aluca, 94 A. 680, 38 R. I. 224. S. C. Gibson v. Atlantic Coast Line R. Co., 70 S. E. 1030, 88 S. C. 360; Craig Milling Co. v. Cromer, 67 S. E. 289, 85 S. C. 350 ; Auten v. Catawba Power Co., 65 S. E. 274, 84 S. C. 399, judgment modified on rehearing, 66 S. E. 180, 84 S. C. 399. S. D. Comeaii v.^ Hurley, 123 N. W. 715. 24 S. D. 275. § 125 INSTRUCTIONS TO JURIES 23G error,** which ordinarily will work a reversal," as being calculat- ed to mislead' the jury.^^ Tenm, Fletcher v. Louisville & N. R. Co., 49 S. W. 739, 102 Tenn. 1. Tex. Smith v. Bryan (Civ. App.) 204 S. ^. 359 ; Petty v. City of San Antonio (Civ. App.) 181 S. W. 224; Bartley v. Marino (Civ. App.) 158 S. W. 1156 ; Ripley v. Ocean Accident & Guarantee Corporation (Civ. App.) 146 S. W. 974; Temple Electric Light Co. V. Halliburton (Civ. App.) 136 S. W. 584; San Antonio Light Pub. Co. V. Lewy, 113 S. W. 574, 52 Tex. Civ. App. 22; Galveston, H. & H. R. Co. V. Alberti, 103 S. W. 699, 47 Tex. Civ. App. 82. XJtali. Larson v. Calder's Park Co., 180 P. 599, 54 Utah, 325, 4 A. L. R, 731; Edd v. Union Pac. Coal Co., 71 P. 215, 25 Utah, 293. Vt. Bancroft v. Town of East Montpelier, 109 A. 39, 94 Vt. 163: Douglass & Varnum v. Village of Morrisville, 95 A. 810, 89 Vt. 393. Va. Norfolk Southern R. Co. v. Crocker, 84 S. E. 681, 117 Va. 327. Wash. Loveland v. Jenkins-Boys Co., 95 P. 490, 49 Wash. 369; Starr v. ^tna Life Ins. Co., 87 P. 1119, 45 Wash. 128. Wis. Taylor v. Northern Coal & Dock Co., 152 N. W.. 465, 161 Wis. 223, Ann. Cas. 1916C, 167; Ryan v. Oshkosh Gaslight Co., 120 N. W. 264, 138 Wis. 466. 6.1 Ala. Alabama Great Southern R. CO. V. McWhorter, 47 So. 84, 156 Ala. 269; Garth v. Alabama Traction Co.. 42 So. 627, 148 Ala. 96. Ark. Helena Hardvyood Lumber Co. V. Maynard, 138 S. W. 469, 99 Ark. 377. Ga. Rawlings v. Cohen, 85 S. E. 851. 143 Ga. 726. Idaho. Smith v. Graham, 164 P. 354, 30 Idaho, 132. Ind. Lake Erie & W. R. Co. v. Bealo, 98 N. B. 453, 50 Ind. App. 450 ; Cleveland, 0., C. & St. L. Ry. Co. v. Bowers, 89 N. E. 485, 173 Ind. 105, denying rehearing 88 N. B. 1073, 173 Ind. 105. Iowa. Garvey v. Boody-Holland & New, 155 N. W. 1027, 176 Iowa, 273. Mo. Williamson v. Kansas City Stock Yards (App.) 217 S. W. 614; Emerson-Brantingham Implement Co. V. Simpson, 217 S. W. 559, 205 Mo. App. 56; Riley v. City of Independ- ence, 167 S. W. 1022, 258 Mo. 671, Ann. 5 4Fla. Pensacola Electric Termi- nal Ry. Co. v. Haussman, 40 So. 196, 51 Fla. 286. 111. Chicago City Ry. Co. v. Schae- fer, 121 111. App. 334- Ind. Southern Ry. Co. v. Crone, 99 N. B. 762, 51 Ind. App. 300.- Neb. Farmers' & Merchants' Bank V. Upham, 37 Neb. 417, 55 N. W. 1044. N. Y.' McLeWee v. Hall, 103 N. Y. 639, 8 N. E. 486; Horgan v. Rapid Transit Subway Const. Co. (Sup.) 146 N. Y. S. 219. Ohio. Cincinnati Traction Co. v. Stephens, 79 N. E. 235, 75 Ohio St. 171 ; Cincinnati Traction Co. v. John- son, 30 Ohio Cir. Ct. R. 702. Tex. St. Louis Southwestern Ry. Co. of Texas v. Evans (Civ. App.) 158 S. W. 1179; St. Louis, B. & M. Ry. Co. V. Maddox (Civ. App.) 152' S. W. 225 6 5 Gibbs V. Wall, 10 Colo. 153, 14 Pac. 216; Dolson v. Dunham, 104 N. W. 964, 96 Minn. 227; Sooby v. Postal Telegraph-Cable Co. (Mo. App.) 217 S. W. 877; Kingfisher Nat. Bank v. Johnson, 98 P. 343, 22 Okl. 228. Impossibility of telling from verdict whether jury misled. Where the complaint in an action for injuries to a servant while operating an unguarded machine charged mere- ly a negligent failure to warn the servant as to the dangers incident to the work, without claiming that the machine was defective, the submission to the jury of the issue whether the machine was dangerous to employes when engaged in their ordinary duties of operating it, and reading In con- nection therewith a statute requiring the guarding of specified machinery, was erroneous, necessitating a revers- al, it being impossible to tell from the verdict whether the jury based their conclusion of negligence on the failure to warn, or on the unguarded condi- tion of the machine. Keena v. Ameri- can Box Toe Co., 128 N. W. 858, 144 Wis. 231. 237 APPLICABILITY TO PLEADINGS AND EVIDENCE § 126 § 126. Scope of rule against broadening issues by instructions The above rule applies, as has already been shown to an instruc- tion which is correct as an abstract proposition of law, but which Cas. 1915D, 748; Bryan v. United States Incandescent Lamp Co., 159 S. W. 754, 176 Mo. App. 716 ; Kellogg v. City of KirksvlUe, 112 S. W. 296, 132 Mo. App. 519. Mont. Chan V. Slater, 82 P. 657, 33 Mont. 155. Neb. Norfolk Beet-Sugar Co. v. Hight, 76 N. W. 566, 56 Neb. 162. N. J. Duel V. Mansfield Plumbing Co., 92 A. 367, 86 N. J. Law, 582. N. M. Bank of Commerce v. Broyles, 120 P. 670, 16 N. M. 414. N. Y. Limerick v. Holdsworth, 139 N. T. S. 787, 154 App. Div. 747. Ohio. Cincinnati Traction Co. v. Kroger, 30 Ohio Cir. Ct. R. 654. Okl. Comanche Mercantile Co. v. Wheeler & Motter Mercantile Co., 155 P. 583, 55 Okl. 328; Chicago, Rock Island & P. Ry. Co. v. Mailes, 152 P. 1131, 52 Okl. 278. Or. Ingram v. Carlton Lumber ■Co., 152 P. 256, 77 Or. 633; Oberlin v. Oregon-Washington R. & Navigation €o., 142 P. 554, 71 Or. 177. Pa. Monier v. Philadelphia Rapid Transit Co., 75 A. 1070, 227 Pa. 273. S. C. Fanning v. Stroman, 101 S. E. 861, 113 S. C. 495. S. D. Christiernson v. Hendrie & BolthofE Mfg. & Supply Co., 128 N. W. 603, 26 S. D. 519. Tex. SchafE v. Holmes (Civ. App.) 215 S. W. 864 ; Scruggs v. E. L. Wood- ley Lumber Co. (Civ. App.) 179 S. W. 897. Utali. Lochhead v. Jensen, 129 P. 347, 42 Utah, 99. Va. Baltimore & O. R. Co. v. Lee, 55 S. E. 1, 106 Va. 32. W, Va. Britton v. South Penn Oil €o., 81 S. E. 525, 73 W. Va. 792. Instructions erroneous ivithin rule. Where a bill of particulars al- leged that defendant contracted to take good care of the horse and colt of plalntifC intrusted to his keeping, and that said horse and colt sickened and died for want of proper care and at- tention, it was held that it was error to instruct the jury under such plead- ings, over the objection of the defend- ant, what the duty of defendant would have been if they should find that special and extra care had been con- tracted for. Ransom v. Getty,' 14 P. 487, 37 Kan. 75. In an action for the unlawful killing of a dog, where it was not contended that dogs were not property, an instruction that dogs were property under the laws of the state was erroneous, being upon a matter not in issue. Brisco v. Laugh- lin, 143 S. W. 65, 161 Mo. App. 76. Where it is alleged that the damage to a shipment of bananas resulted from negligence and delay, followed by spe- cific allegations ascribing the damages to the failure to stop the car as per contract, it is error to submit to the jury as a separate ground of recovery the failure to ice the car. Houston & T. C. R. Co. V. Corsicana Fruit Co. (Tex. Civ. App.) 170 S. W. 849. Where the petition ■ in an action against a shipper of calves in consequence of their having been put into pens infect- ed with a contagious disease alleged that the carrier had been notified that the pens had been quarantined, and had permitted the shipper, in igno- rance of the fact, to place his calves therein, the court erred in submitting as a ground of recovery the duty of the carrier to have suitable shipping and feeding pens, since no such ground was averred in the petition. Texas & P. Ry. Co. V. Beal & Self, 97 S. W. 329, 43 Tex. Civ. App. 588. Where, in an action against a carrier for the penalty imposed by a statute for de- lay in the transportation of freight, the court submitted the issue, what amount, if any, is the plaintiff entitled to recover of defendant on account of the failure to promptly ship the freight, a charge that if the jury be- lieved the evidence they should an- swer the issues, "Yes," was erroneous, for the charge and the issue did not correspond, and the response directed to be made was inappropriate to the issue. Davis v. Southern Ry. Co., 60 S. B. 722, 147 N. C. 68. In an action against a railroad company which had §126 INSTRUCTIONS TO JURIES 238 is inapplicable to any issue in the case,®* and requires the instruc- contracted with the county court to transport sick persons to the pest- house by such a person, instructions for plaintiff based on the theory of an implied contract, and which ignore the special contract alleged in the decla- ration, should be refused. Jenkins v. Chesapeake & O. Ey. Co., 57 S. E. 48, 61 W. Va. 597, 49 L. E. A. (N. S.) 1166, 11 Ann. Gas. 967. In an action for injuries to a passenger, received while attempting to enter the middle door of a car, caused by falling into a space between the door and the sta- tion platform, an instruction charging that if defendant could have opened the end doors of the car and taken the passengers in there with safety, but failed to do so, because it was not pay- ing attention to the safety of the pas- sengers, its failure to do so would be negligence, was erroneous, as not jus- tified by the issues, where neither the pleadings nor the evidence raised any issue" as to the company's duty to open the end doors. Plummer v. Boston Elevated Ey. Co., 84 N. E. 849, 198 Mass. 499. Where, in an action on a note and mortgage, there was tio plea of non est factum, and plaintiff pro- duced in evidence the note and mort- gage. It was error to submit to the jury the question whether defendant executed the note and mortgage. Walker v. Tomlison, 98 S. W. 906, 44 Tex. Civ. App. 446. Where the issues made by the pleadings in an action on notes given for an engine covered by a chattel mortgage was that the prop- erty was seized and sold under the terms of the mortgage, and a sum realized in excess of the indebtedness, it was error to submit the case upon the theory that plaintiff had wrongful- ly converted the mortgaged property. Aultman & Taylor Machinery Co. v. Forest, 130 P. 1086, 23 Colo. App. 558. Where, in an action on a note given for a policy premium, the answer did not allege that plaintiff represented to defendant that there would be any stipulations in the policy that were not contained in it, especially one that she would receive 7 per cent, per an- num interest on premiums paid, an in- struction that, if plaintiff represented to defendant that the policy would contain such stipulation which de- fendant believed to be true, and by reason thereof was induced to execute the note, they should find for defend- ant, was erroneous. Sympson v. Bell, (Ky.) 112 S. W. 1133. In an action for breach of contract by which plaintiff agreed to dig a well 300 feet deep, where plaintiff alleged that the well was dug 286 feet deep when the drill was accidentally lost, and that plain- tiff offered to drill another well near by without charge, which offer was refused, and sought recovery for dig- ging 300 feet at the contract price, or, in the alternative, reasonable compen- sation for the work actually done, it was error to authorize recovery on the basis of what the well dug was ac- tually worth to defendant. Mitchell V. Boyce (Tex. Civ. App.) 120 S. W. 1016. Where plaintiff contracted to drill a well not less than 200 nor more than 400 feet, at the option of defend- ant, who was to furnish the casing, no payment to be made if he abandoned the work before completion, it was er- ror, in an action for compensation for a partialfy completed well in which plaintiff alleged that he ceased work because defendant notified him to da so, to instruct that if it became neces- sary to use casing in drilling the well, and defendant failed or refused for an unreasonable length of time to fur- nish it, plaintiff could recover. Le- master v. Southern Missouri Ey. Co , 99 S. W. 500, 122 Mo. App. 313. Where a complaint was construed as stating a cause of action for defendant's fail- ure to satisfactorily perform a serv- ice contract to locate plaintiff on cer- tain public lands under the Stone and Timber Act, instructions that if de- fendant's representations were mate- rially false, and plaintiff did not know and had no means of knowing that they were false, but relied oa them as being true, and defendant knew this and plaintiff suffered dam- ages therehy, it was immaterial whether defendant made the represen- tations willfully or intentionally, or 8 See note 56 on page 243. 239 APPLICABILITY TO PLEADINGS AND EVIDENCE §126 tions to be confined to the issues raised by the pleadings, although not, for he had no right to make even a mistake in facts so material to the contract except under the penalty of responding in damages, and also that plaintiff could not recover unless de- fendant or his agent made false rep- resentations to plaintiff, and plaintiff actually relied thereon, and that it must also be shown that plaintiff paid something to defendant or his agent vphich in equity and good conscience he ought to return, etc., were inappro- priate and erroneous. Noble v. Libby, 129 N. W. 791, 144 Wis. 632. In per- sonal injury action, an instruction stating that the jury should not be influenced by sympathy nor the rela- tive financial condition of the parties is properly refused, where punitive damages are not claimed. Riverside 6 Dan River Cotton Mills Co. v. Car- ter, 74 S. B. 183, 113 Va. 846. Where, in an action on a bond for liquidated damages for breach of contract, the petition prayed for judgment for the amount of the bond, without praying in the alternative for the actual dam- ages sustained by the breach, and without praying for general relief, it was error to give a charge permitting a recovery of actual damages. Work V. Cross (Tex. Civ. App.) 98 S. W. 208. Where the action was for brokers' commissions, and not for damages by reason of a revocation of their agency, instructions submitting the latter is- sue to the jury were erroneous. Knudson & Richardson v. Laurent, 140 N. W. 392, 159 Iowa, 189. In eject- ment, alleging plaintiff's reliance on a demise from herself as sole heir of her father, who died in possession, and that defendant claimed under her father, and that his deed to defend- ant's remote grantor was a forgery, an instruction that fraud may not be presumed, but that slight circumstanc- es may carry conviction thereof, was inapplicable to any issue. Cowart v. Strickland, 100 S. E. 447, 149 Ga. 397, 7 A. L. R. 1110. Where, in an action for the destruction of property by fire, plaintiff's statement alleged that the negligent throwing of sparks causing the fire occurred between 2:30 and 5:15 p. m., it was error to charge that the jury could find that the spark causing the fire might have fallen on the premises "at any time prior to 2 o'clock." Oakdale Baking Co. v. Phil- adelphia & R Ry. Co., 91 A. 358, 244 Pa. 463. In an action of deceit against a bank president for falsely representing the bank's condition, thereby inducing the plaintiff's ac- ceptance of its stock, which defend- ant had purchased for him, it is error to Instruct that if defendant made false representations concerning the institution's financial condition, "or" as to the real ownership of the stock, he would be liable; false representa- tion as to ownership not being counted on in the declaration. Cahill v. Apple- garth, 56 A. 794, 98 Md. 493. In suit by hotel guest for money deposited with hotel, where defendant, under general issue, set up no bailment and the case was tried on that theory, it was not error to refuse instruction on the theory of gratuitous bailment. Adler v. Planters' Hotel Co. (Mo. App.) 181 S. W. 1062. Where, in an action for rent under a lease for the time aft- er defendants had abandoned the premises, there was no issue tendered In the answer that defendants had abandoned the property with plain- tiff's consent, but the answer pleaded that the lease had been obtained by fraud, and the judge charged that, if the jury found the lease was valid, they were bound to find for plaintiff in the sum of $150 for rent, whereupon defendants' counsel asked the court If that would be true if defendants aban- doned the premises by consent, to which the court replied in the nega- tive, and added that, if there was an agreement for surrender, defend- ants were entitled to a deduction for the term for which the premises were abandoned by plaintiff's consent, it was held that such instruction was erroneous as not within the issues. Swayne v. Felici, 79 A. 62, 84 Conn. 147. Where, in slander, plaintiff's rep- utation was not attacked or involved, a charge that the jury would accept as true the allegation that he had the reputation of being an honest man, and had never been suspected of any § 126 INSTEUCTIONS TO JURIES 240 these be immaterial.®'' Such rule precludes the court from in- dishonest practices, was properly re- fused. Lindsay v. St. Louis, I. M. & S. Ey. Co., 129 S. W. 807, 95 Ark. 534. An instruction as to the master's duty to furnish safe machinery and there- after exercise care to ascertain its condition is outside the issue ; the the- ory of the servant's complaint for in- jury being the master's unkept prom- ise to repair. National Motor Vehicle Co. V. Pake, 109 N. E. 787, 60 Ind. App. 366. Where an employfi suing for a personal injury did not claim that it was negligence for the employ- er to fail to do one of three things specified, provided one or two of the things were supplied, an Instruction that a failure to do any one of the things was actionable negligence was erroneous. Burrows v. Likes, 166 S. W. 643, 180 Mo. App. 447. It is not error, in an action for the death of a servant, to refuse instructions on con- tributory negligence, where the com- plaint was based on the theory of last clear chance; that necessarily involv- ing an admission of contributory neg- ligence. Doichinofif v. Chicago, M. & St P. Ey. Co., 154 P. 924, 51 Mont. 582. Where the cause of action plead- ed was based on negligence, it was er- ror to submit it to the jury on the theory that it was for a nuisance. Sandzig v. Eckstein (Sup.) 182 N. Y. S. 727. Instruction regarding imput- ed negligence was properly refused where that Issue had been excluded for failure to plead it. Angell v. Chi- cago, E. I. & P. Ey. Co., 156 P. 763, 97 Kan. 688, rehearing denied 157 P. 1196, 98 Kan. 268. Where a mining company sued for injuries to an em- ploy§ pleaded contributory negligence in general terms only, an Instruction on contributory negligence based on the loading of a car in a particular manner was properly refused. Jelllco Coal Mining Co. v. Lee, 151 S. W. 26, 151 Ky. 53. If plaintifE does not claim a right to recover because of the violation of an ordinance in evi- dence, it is not error to refuse an in- struction to the effect that no recov- ery could be predicated upon a viola- tion of such ordinance. Sehrt v. Sampsell, 167 111. App. 628. In an action for injuries to plaintiff by the use of pads, purchased from defend- ant and advertised as a cure for rup- ture, but containing injurious ingredi- ents, an instruction predicated on the relation of physician and patient, and holding defendant responsible for failure to exercise the care and skill of average physicians, was erroneous, as not justified by the pleadings. Harmon v. Plapao Laboratories (Mo. App.) 218 S. W. 701. Where, in an action against a physician for mal- practice, it was not suggested that plaintiff had suffered any injury to his general health, an instruction au- thorizing the jury, in fixing the dam- ages, t^ take into consideration the impairment of plaintiff's health in ad- dition to the injury sustained by him was erroneous, because foreign to the issues. Albertson v. Lewis, 109 N. W. 705, 132 Iowa, 243. In a suit against a railway company for a nui- sance, counting on unnecessary noises made by passing locomotives, it was error to predicate plaintiff's right to recover on unusual noises. Passons v. Missouri, K. & T. Ey. Co. of Texas (Tex. Civ. App.) 137 S. W. 435. In an action against a railroad to recov- er damages for a death caused by in- testate being struck by a train while crossing the defendant's track, it Is error for the court to Instruct the jury on the theory of willful or wanton recklessness on part of defendant; it not being alleged in the pleadings that defendant was willfully or wantonly negligent. Wabash E. Co. v. Larrlck, 84 III. App. 520. Where, In an action against -a railway company for injury to a traction engine by a collision with a train, the declaration stated a cause of action based on noncompliance with a statute requiring every railroad to keep the engineer on the lookout ahead, and to sound the whistle, put the brakes down, etc, on an obstruc- tion appearing on the track, an in- struction defining the duty of the com- pany, on seeing the traction engine approaching the track under such cir- cumstances as to indicate that tha B7 Hooker v. Johnson, 6 Fla. 730. 241 APPLICABILITY TO PLEADINGS AND EVIDENCE § 126 structing on issues made by the pleadings, but which have been driver thereof had not seen or heard the approach of the train, and that he would probably enter on the track just as if the train were not coming, was erroneous, because not justified by the pleadings. Chesapeake & N. Ry. V. Crews, 99 S. W. 368, 118 Tenn. 52. Where the petition In an action against a railroad company for the destruction of property by fire, set by sparks from an engine, merely alleg- ed a failure to properly equip the engine with the best and most approv- ed spark arresters in general use, and a failure to properly operate the en- gine, the court properly refused to charge that it was the duty of the company to exercise ordinary care to keep the spark arresters on its en- gines in good repair. Lam & Rogers V. St. Louis Southwestern Ry. Co. of Texas (Tex. Civ. App.) 142 S. W. 977. Where the negligence alleged in an action against a railroad company for injuries by frightening a team engag- ed in grading the track and causing them to run into plaintiff was in per- mitting the engine to unnecessarily emit steam so as to cause a loud and unusual noise, it was error to submit the issue of negligence in failing to discontinue the noise by the steam, after the engineer saw, or by exercis- ing reasonable care could have dis- covered, that it was frightening the horses. Maynard v. Chicago, B. & Q. R. Co., 137 S. W. 58, 155 Mo. App. 352. In an action for breach of an express warranty in a sale of person- alty, the court should limit plaintiff's right to recovery to breach of the ex- press warranty pleaded, and it was error to charge on an implied war- ranty not pleaded. Burgess v. Felix, 140 P. 1180, 42 Okl. 193. In action by buyer of lambs for seller's failure to perform, wherein the seller counter- claimed for the buyer's breach, the buyer was liable on the seller's coun- terclaim if the seller had in truth complied with the contract, even though the buyer honestly rejected the lambs offered as falling below his construction of the requirements of the contract, and instructions relative to the . buyer's right to recover the Inst. TO Juries— 16 part of the price paid in case of an honest rejection were not pertinent to the issues. Stanfield v. Arnwine, 185 P. 759, 94 Or. 381. Where, in an ac- tion for the price of a furnace and in- stallation work, the sole issues were with reference to plaintiffs' perform- ance and defendants' rescission be- cause of the failure of the furnace to comply with the contract, defendants having interposed no counterclaim, ih- , structions that, if the furnace' did not comply with the contract, plaintiffs were entitled to recover the difference between the contract price, etc., and compensation for defendants' damag- es sustained, were erroneous, as not within the issues. Helm & Van Eman V. Loveland, 113 N. W. 1082, 136 Iowa, 504. Where, in an action for the val- ue of certain potatoes, defendant, while admitting the order, denied that the potatoes shipped were of the qual- ity specified, and alleged that, when received, they were so decayed as to be not marketable, and that plaintiff, on being notified, authorized defend- ant as their agent to sell the potatoes for their account for the best price obtainable and remit the proceeds, which defense was denied by reply, it was held that the pleadings raised no issue of fraud or misrejiresentation inducing the subsequent contract al- leged in the answer, and that the court erred in charging that, if such subsequent contract was made by de- fendant's deceit or fraudulent repre- sentations, the original contract must govern in the determination of the controversy. G. G. Liebhardt Produce Co. V. Gibbs, 106 P. 6, 46 Colo. 613. While it is a rule of grammatical con- struction that relative, qualifying, or limiting words or clauses are to be referred" to the next preceding ante- cedent, where there is only one ante- cedent there is no reason for construc- tion, as the words or clauses are of necessity referable to the only ante- cedent ; and hence, where the several allegations of negligence in a petition are all predicated on a preceding alle- gation that plaintiff was injured by a street car while walking over and along a certain street, it Is error to § 126 INSTEUCTIONS TO JURIES 242 withdrawn or abandoned by the parties,^ and makes it proper to give a charge based upon the hypothe- sis that plaintiff, when injured, was lying on the street with his feet on one of the rails of the car track. San Antonio Traction Co. v. Kelleher, 107 S. W. 64, 48 Tex. CSv. App. 421. The only negligence pleaded, in an action for collision of an automohile with a team on a highway being an unlawful rate of speed of the machine, submis- sion of the questions of a vigilant watch being kept by defendant, and of failure to keep one having been the cause of the accident, was error. Haybourn v. PhilUps, 140 S. W. 977, 160 Mo. App. 534. Where, in an ac- tion for damages from an error in a telegram, resulting in the plaintiff real estate brokers selling property at a sum which left them no commission, plaintiffs did not plead a binding con- tract of sale, it was error to instruct on what constitutes such a contract. Levy Bros. v. Western Union Tele- graph Co., 135, P. 423, 39 Okl. 416. Where the complaint alleged a con- version of plaintiff's tools by defend- ant, and the conversion was the con- trolling issue presented, an instruction which assumed that plaintiff's cause of action was based on the neglect of defendant in breaking and leaving open plaintiff's tool chest was errone- ous because not presented by the pleadings. Berman v. Kling, 71 A. 507, 81 Conn. 403. In an action to forfeit an option to purchase water rights, or in case a forfeiture cannot be had, for damages, an Instruction proceeding on the theory that it is an action for the purchase price of the water rights is erroneous. Gard v. Thompson, 123 P. 497, 21 Idaho, 485. An instruction based on the tlaeory of a waiver Is erroneous when the waiver is not pleaded. Rawlings v. St. Louis & S. F. R. Co. (Mo.) 175 S. W. 935. In action on note given for bank stock, defended on the ground that it was ohtained by fraud and was without consideration, where no waiv- er of defense of failure of considera- tion was pleaded, it was not error to refuse instruction on waiver. Atchi- son Savings Bank v. Potter, 164 P. 149, 100 Kan. 407. After a cause has gone to the jury, a plaintiff cannot interpose and recover upon a new cause of action by means of an instruction. Lawson V. Van Auken, 6 Colo. 52. ' Discovered peril. As plaintiff can recover only on the negligence alleged, it is error, where the petition does not state a cause of action under the hu- manitarian doctrine, to submit that question to the jury. Wilder v. Wa- bash R. Co., 146 S. W. 837, 164 Mo. App. 114; Knapp v. Dunham (Mo. App.) 195 S. W. 1062; Cleveland, P. & E. R. Co. V. Nixon, 21 Ohio Cir. Ct. R. 736, 12 O. C. D. 79; Texas & P. Ry. Co. V. Knox (Tex. Civ. App.) 75 S. W. 543; Rio Grande, S. M. & P. Ry. Co. v. Martinez, 87 S. W. 853, 39 Tex. Civ. App. 460. Question of estoppel. The ques- tion of estoppel not being raised by the pleadings, an instruction thereon is properly refused. Bankers'. Trust Co. of Amarillo v. Cooper, Merrill & Lumpkin (Tex. Civ. App.) 179 S. W. 58 XT. S. (C. C. A. Ohio) Toledo, St. L. & W. R. Co. V. Kountz, 168 F. 832, 94 C. O. A. 244. Ala. Louisville & N. R. Co. v. Hub- bard, 41 So. 814, 148 Ala. 45. Ga. McWhorter v. O'Neal, 51 S. E. 288, 123 Ga. 247. Iowa. Hansen v. Kline, 113 N. W. 504, 136 Iowa, 101. Kan. Cobe v. Coughlin Hardware Co., 112 P. 115, 83 Kan. 522, 31 L. R. A. (N. S.) 1126. Ky. Sandy Valley & E. Ry. Co. v. Hughes, 194 S. W. 344, 175 Ky. 320, modifying opinion 188 S. W. 894, 172 Ky. 65; Purdom v. Brussells, 66 S. W. 22, 23 Ky. Law Rep. 1796. Md. Dudderar v. Dudderar, 82 A. 453, 116 Md. 605 ; Dronenburg v. Har- ris, 71 A. 81, 108 Md. 597. Mo. Buster Brown Co. v. North- Mehornay Furniture Co., 126 S. W. 988, 140 Mo. App. 707. Neb. Gray v. Chicago, St. P., M. & O. B. Co., 134 N. W. 961, 90 Neh. 795 ; Columbus State Bank v. Crane Co., 76 N. W. 557, 56 Neb. 317. Tex. Leland v. Chamberlin, 120 S. W. 1040, 56 Tex. Civ. App. 256. 243 APPLICABILITY TO PLEADINGS AND EVIDENCE §12& refuse instructions on issues eliminated by the court,*^ or on is- sues raised by pleas or repli'cations to which demurrers have been 541. In the absence of pleading of equitable estoppel in an action to en- join and recover damages for trespass upon land, requested instruction on equitable estoppel was properly re- fused. Fort V. Wiser, 201 S. W. 7, 179 Ky. 706. In an action of trespass to try title, where the plaintiff in no way raised the issue in his pleadings that the defendant's grantor was es- topped from conveying the land to the defendant, and the only issue was whether defendant's grantor had exe- cuted a prior conveyance, it was prop- er not to submit an issue of estoppel of the defendant's grantor to the jury. Hannay v. Harmon (Tex. Civ. App.) 137 S. W. 406. Instmctions not improper vrith- in rnle. When the allegations show- ed that the earning capacity of the in- jured person was necessarily impair- ed, it is suiEcient to justify a submis- sion of the issue, even though it has not been alleged in terms that the earning capacity was impaired. San Antonio Traction Co. v. Cassanova (Tex. Civ. App.) 154 S. W. 1190. In- struction authorizing recovery on proof of one of two grounds of negli- gence averred, and making no refer- ence to the other, is not open to criti- cism of broadening the issues. Kaen- ter V. Missouri Pac. Ry. Co. (Mo. App.) 218 S. W. 349. In an action against a street railway for injuries to a van driver in crossing its track, petition alleging the existence of an establish- ed custom to stop cars at a certain point, and then alleging that plaintifE started across the track before a car, in the exercise of due care, "relying upon said custom," sufficiently alleged knowledge of the custom by plaintiff to justify an Instruction submitting the question of such knowledge. Har- rington V. Kansas City Rys. Co. (Mo. App.) 217 S. W. 879. It was not error to suhmit whether the street car, on which a deceased passenger was in- jured, started "suddenly and with great force," though the petition alleg- ed that the car started with "a jerk" ; there being no practical difference in the expressions. Johnson v. Metro- politan St. Ey. Co., 164 S. W. 128, 177 Mo. App. 298. 6 8 U. S. (0. C. A. Va.) J. W. Bish- op Co. V. Dodson, 152 F. 128, 81 C. C. A. 346. Ala. Duncan v. St. Louis & S. F. ,E. Co., 44 So. 418, 152 Ala. 118 ; Green V. Brady, 44 So. 408, 152 Ala. 507; Birmingham R., I^lght & Power Co. v. Moore, 43 So. 841, 151 Ala. 327 ; Wood- stock Iron Works v. Kline, 43 So. 362, 149 Ala. 391; Central of Georgia Ey. Co. V. McNah, 43 So. 222, 150 Ala. 332; Alabama City, G. & A. Ry. Co. V. Bates, 43 So. 98, 149 Ala. 487. Ariz. E>wing v. United States, 89 P. 593, 11 Ariz. 1. Ark. Dunham v. H. D. Williams Cooperage Co., 103 S. W. 386, 83 Ark. 395; R. A. Faulkner & Co. v. Cook, 103 S. W. 384, 83 Ark. 205 ; St. Louis & S. F. Ry. Co. V. Crowder, 103 S. W. 172, 82 Ark. 562; Bagnell Tie & Timber Co. v. Goodrich, 102 S. W. 228, 82 Ark. 547. Colo. Denver Consol. Electric Co. v. Walters, 89 P. 815, 39 Colo. 301; Id., 89 P. 820, 39 Colo. 318. Conn. Joyce v. Joyce, 67 A. 374, 80 Conn. 88. Ga. Coweta County v. Central of Georgia Ey. Co., 60 S. E. 1018, 4 Ga. App. 94 ; McGregor v. Battle, 58 S. E. 28, 128 Ga. 577, 13 L. R. A. (N. S.) 185; Humphreys v. Smith, 58 S. B. 26, 128 Ga. 549; Green v. Wright, 57 S. E. 965, 1 Ga. App. 194 ; Overstreet V. Nashville Lumber Co., 56 S. E. 650, 127 Ga. 458. Idaho. Johnson v. Eraser, 2 Idaho (Hasb.) 404, 18 P. 48. 111. Hoffman v. Stephens, 109 N. E. 994, 269 111. 376; Cal. Hirsch & Sons Iron & Rail Co. v. Coleman, 81 N. E. 21, 227 111. 149, affirming judg- ment 128 111. App. 245; Commercial State Bank of Forreston v. Folkerts, 200 111. App. 385; Coal Belt Electric Ey. Co. V. Young, 126 111. App. 651; 6 9 Eose V. Winnsboro Nat. Bank, 41 S. C. 191, 19 S. B. 487; Gulf, C. & S. F. Ey. Co. V. Warner, 54 S. W. 1064. 22 Tex. Civ. App. 167. § 126 INSTEUCTIONS TO JURIES 244 sustained,*" or on issues raised by a count of a complaint which has been dismissed,®^ and it is proper 4o refuse instructions which would raise immaterial issues.** It is proper to refuse an instruc- Quincy Horse Ry. & Carrying Co. v. Rankin, 123 lU. App. 472. Iiid. Indianapolis Traction & Ter- minal Co. V. Beckman, 81 N. E. 82, 40 Ind. App. 100; Goodbar v. Lidikey, 35 N. E. 691, 136 Ind. 1, 43 Am. St. Rep. 296. \ Ky. Spinks v. Turley, 103 S. W. 321, 31 Ky. Law Rep. 676; Hutchison V. City of Maysvllle, 100 S. W. 331, 30 Ky. Law Rep. 1173. Md. Dick V. Riddle Bros., 66 A. 21, 105 Md. 308. Micli. Pierson v. Illinois Cent. R. Co., 112 N. W. 923, 149 Mich. 167; Smitley v. Pinch, 112 N. W. 686, 148 Mich. 670. Minn. Wilcox v. Chicago, M. & St. P. R., Co., 24 Minn. 269. Mo. State ex rel. Shipman v. Al- len, 108 S. W. 1090, 124 Mo. App. 465; Council V. St. Louis & S. F. R. Co., 100 S. W. 57, 123 Mo. App. 432; O'Gara v. St. Louis Transit Co., 103 S. W. 54, 204 Mo. 724, 12 L. R. A. (N. S.) 840, 11 Ann. Cas. 850; Masterson v. St. Louis Transit Co., 103 S. W. 48, 204 Mo. 507. Mont. First Nat. Bank v. Carroll, 88 P. 1012, 35 Mont. 302; Howie v. California Brewery Co., 88 P. 1007, 35 Mont. 264. Okl. Williams v. Arends, 157 P. 313, 57 0kl. 556; Grosshart v. ShafEer, 152 P. 441, 52 Okl. 204. Op. Rohert v. Parrish, 17 Or. 583, 22 P. 136. B. I. De Coursey v. Rhode Island Co., 67 A. 431. Tex. Nash V. Noble, 102 S. W. 736, 46 Tex. Civ. App. 369; Prewitt v. Southwestern Telegraph & Telephone Co., 101 S. W. 812, 46 Tex. Civ. App. 123; Bell v. Keays (Civ. App.) 100 S. W. 813; Thompson v. Hicks (Civ. App.) 100 S. W. 357. Vt. Smith V. Central Vermont Ry. Co., 67 A. 535, 80 Vt.'208. Instractions properly refused within pule. In an action for inju- ries to a passenger, where the ques- tion whether plaintiff's damages should be abated because they had been negligently allowed to accumu- late was not in issue, the refusal of a charge that it was plaintifC's duty not to aggravate his injuries by negli- gence, and to use reasonable care to cure his injuries, though correct in the abstract, was not error. Birming- ham Ry., Light & Power Co. v. An- derson, 50 So. 1021, 163 Ala. 72. Where, in an action for the price of jevrelry, the sole issue was whether defendants could reject the j*>welry, and there was no issue before the jury as to their refusal to accept a show case, an instruction that the delivery of the case to a public carrier proper- ly consigned to defendants constituted a delivery to them, while abstractly correct, was properly refused. Ameri- can Standard Jewelry Co. v. R. J. Hill & Son, 117 S. W. 781, 90 Ark. 78. 60 Southern Ry. Co. v. Bynum, 69 So. 820, 194 Ala. 190; Fike v. Strat- ton, 56 So. 929, 174 Ala. 541 ; Alabama Great Southern R. Co. v. Hanbury, 49 So. 467, 161 Ala. 358 ; Western Union Telegraph Co. v. Benson, 48 So. 712, 159 Ala. 254. The court may, however, caution the jury" not to consider matter stricken on demurrer. Georgia Ry. & Electric Co. v. GatUn, 82 S. E. 888, 142 Ga. 293. Flea erroneously sustained against demurrer. Where the court has erroneously sustained a plea against a demurrer, it is error, there being evidence to support the plea, to refuse to instruct that if the facts alleged in the plea are found to be true the verdict must be for the de- fendant, as the instructions may not change the issues as developed by the pleadings. Pratt Consol. Coal Co. v. Davidson, 55 So. 886, 173 Ala. 667. 61 Hill V. Elmore, 79 So. 148, 16 Ala. App. 474; Merrielees v. Wabash R. Co., 163 Mo. 470, 63 S. W. 718; Jack- son V. Southwest Missouri R. Co., 156 S. W. 1005, 171 Mo. App. 430. 62 State V. Ewing, 121 P. 834, 67 Wash. 895 ; State v. Clark, 41 S. E. 204, 51 W. Va. 457. 245 APPLICABILITY TO PLEADINGS AND EVIDENCE § 126 tion which is not proper as to certain counts of a pleading, al- though proper as to other counts if the scope of the instruction is not limited to the latter counts,** and the court is not required to instruct on a plea which presents no defense, although not met with objection or demurrer.** The above rule applies to instructions defining the liability of a party who has been dismissed from the case,'^ and the fact that the counsel for both parties have, in their arguments, treated the case as embracing certain issues, does not_ exempt them from the operation of such rule.*® A general denial is sufficient to require the submission of any defensive issue raised by the evidence, which is not required by statute or rules of pleading to be specifically pleaded;*' but where a reply sets up new matter, which constitutes a departure from the original cause of action alleged in the complaint, the rule is that an instruction submitting such new matter to the jury is erroneous,** unless the trial proceeds without any objection being made on account of such departure, in which case instructions presenting the issues raised by the replication are proper.** In some jurisdictions a party is entitled to have the jury instructed that it should not consider any other matters than those alleged in the complaint.'* Ordinarily a judgment will not be reversed 83 Dudley v. Peoria Ey. Co., 153 111. "^ Galveston, H. & S. A. Ry. Co. v. App. 619. Wilson (Tex. Civ. App.) 214 S. W. 773. Charge of hoth negligence and 88 Brasel v. W. T. Letts Box & intentional wrong in separate Cooperage Co. (Mo. App.) 220 S. W. counts. Where both negligence and 984; Merrill v. Suing, 92 N. W. 618, wanton or intentional injury are 66 Nel). 404. charged in separate counts, a charge 8 9Loucks v. Da vies, 96 P. 191, 43 that plaintiff cannot recover unless Colo. 490. wantonness and willfulness are shovcn '» Baltimore & O. K. Co. v. Lock- is erroneous, unless confined to the wood, 74 N. E. 1071, 72 Ohio St. 586. count alleging wantonness. Birming- Circumstances under ivhicli such ham Railway & Electric Co. v. Pink- instruction required. Where, in an ard, 26 So. 880, 124 Ala. 372. Where action by a servant to recover from both wanton or intentional wrong and his master for personal injuries, a negligence are alleged In separate failure to guard machinery vas not counts of a petition, a charge as to alleged as negligence, and there was contributory negligence, not confined no evidence as to this being an ele- to the count alleging negligence, is ment of negligence, but a juror ques- properly refused. Birmingham Rail- tioned a witness as to the failure to way & Electric Co. v. Pinkard, 26 So. guard the machine in question, and 880, 124 Ala. 372. volunteered the information that it 6 4 Newman v. McComb, 71 S. B. was practicable to guard it, the refus- 624, 112 Va. 408. al of a requested charge that the jury 85 Ford V. Drake, 127 P. 1019, 46 could not consider such failure was Mont. 314. held reversible error, as the court 60 Martin v. Nichols, 56 S. E. 995, was not able to say that the verdict 127 Ga. 705. was not based on such extraneous 127 INSTRUCTIONS TO JUEIES 246 because of the giving of instructions on matters outside of the scope of the pleadings, if the jury has not been misled thereby or the complaining party has not been prejudiced.'^ § 127. Instructions on matters outside the pleadings, but shown by the evidence The above rule''* applies to an instruction submitting questions not within the issues raised by the pleadings, although evidence upon such questions has been admitted, but improperly so, and over objection,'® and in a considerable number of the cases it is held without qualification that the instructions should not be broader than the pleadings, whatever be the scope of the evi- dence.'^ matter. Hockaday v. ScWoer, 94 A, 526, 125 Md. 677. 71 Dunlap V. May, 42 Minn. 309, 44 N. W. 119; McClary v. StuU, 44 Neb. 175, 62 N. W. 501 ; Canfield v. Hard, 58 Vt. 217, 2 A. 136; Lemke v. Mil- waukee Electric Ey. & Light Co., 136 N. W. 286, 149 Wis. 535. Afiirmative showing of no preju- dice. Though the charge of the court may present issues not raised by the pleadings, yet, if it appears aflSrma- tively from the record that the finding of the jury was not influenced there- by, the case will not ordinarily be reversed. Texas Cent. Ry. Co. v. Clif- ton, 2 Willson, Civ. Cas. Ct. App. § 490. 72 Ante, § 125. '3 Miller v. Pinissian Nat. Ins. Co., 122 N. W. 1093, 158 Mich. 402 ; Bank of Commerce v. Broyles, 120 P. 670, 16 N. M. 414; Parrish v. Fishel, 189 N. Y. S. 1033, 155 App. Div. 911. 7* Ga, Stanford v. Murphy, 63 Ga. 410. ni. Hackett v. Chicago City Ry. Co., 85 N. E. 320, 235 111. 116, revers- ing judgment Chicago City Ry. Co. v. Hackett, 136 111. App. 594. Compare, Consolidated Coal Co. of St. Louis V. Bokamp, 54 N. E. 567, 181 111. 9, aflSrming judgment 75 111. App. 605. Kan. Atchison, T. & S. F. R. Co. V. Miller, 39 Kan. 419, 18 Pac. 486. Ky. O'Kain v. Davis, 216 S. W. 354, 186 Ky. 184. Mo. Stumpf v. United Rys. Co. of St. Louis (Mo. App.) 227 S. W. 852; Simms v. Dunham (App.) 203 S. W. 652; Young v. Dunlap, 190 S. W. 1041, 195 Mo. App. 119; State ex rel. Cen- tral Coal & Coke Co. v. Ellison, 195 S. W. 722, 270 Mo. 645, quashing judg- ment (App.)' Goode V. Central Coal & Coke Co., 186 S. W. 1122; Scrivner V. Missouri Pac. Ry. Co., 169 S. "W. 83, 260 Mo. 421 ; Hufft v. St Louis & S. F. E. Co., 121 S. W. 120, 222 Mo. 286; Matson v. Frazer, 48 Mo. App. 302. N. D. Williams v. Beneke, 153 N. W. 411, 30 N. D. 538. S. D. Smith v. Mutual Cash Guar- anty Fire Ins. Co., 113 N. W. 94, 21 S. D. 483. Tex. Miller v. Layne & Bowler Co. (Civ. App.) 151 S. W. 341; Missouri, K. & T. Ey. Co. of Texas v. Brown (Civ. App.) 147 S. W. 1177 ; Smith v. F. W. Heitman Co., 98 S. W. 1074, 44 Tex. Civ. App. 358. Duty to amend. If the evidence shows a different state of facts from those contained in the pleadings, and a party to the suit desires instructions in accordance with those facts, he must first amend his pleadings by leave of court. Budd v. Hoffheimer, 52 Mo. 297. 247 . APPLICABILITY TO PLEADINGS AND EVIDENCE § 129 § 128. Declaring legal effect of evidence not pertinent to issues raised by the pleadings As we have seen, it is generally true that the instructions should not be broader than the issues made by the pleadings, or present issues not raised thereby. Such general rule, however, has its qualifications. The jury is not supposed to know, and in practice does not in fact know, the issues raised by the pleadings, except in the most general way, when viewed from a legal stand- point. To them all the evidence introduced, unless excluded by the court, is to be considered as having a bearing on the case. It is therefore proper to limit, explain, and declare the legal effect of particular evidence by the instructions, although the issues to which such evidence is pertinent are not v/ithin the scope of the pleadings.'^ § 129. Effect of failure to object to evidence upon issues outside \ scope of pleadings While there are conflicting authorities'® in a considerable num- ber of jurisdictions, an exception to the above rule exists in those cases where evidence is admitted without objection upon issues not within the scope of the pleadings, in which event the court may," and should '* in these jurisdictions, charge upon such is- 7 5 Price V. St. Louis, I. M. & S. Ry. Minn. Qualy v. Johnson, 83 N. W. Co., 170 S. W. 925, 185 Mo. App. 432. 393, 80 Minn. 408. 76 Latourette v. Meldrum, 90 P. 503, Mo. Menefee v. Diggs, 172 S. W. 49 Or. 397 ; Coos Bay, E. & E. K. & 427, 186 Mo. App. 659. Nav. Co. V. Siglin, 26 Or. 887, 38 Pac. Mont. McCabe v. City of Butte, 392; First Nat. Bank of Ogden v. 125 P. 133, 46 Mont. 65. Taylor, 114 P. 529, 38 Utah, 516. Neb. Herpolsheimer v. Acme Har- Instrnction not required. vester Co., 119 N. W. 30, 83 Neb. 53. Though evidence of matters not in is- N. Y. Brusie v. Peck Bros. & Co., sue is admitted without objection, the 135 N. Y. 622, 32 N. B. 76; Phillips court is not bound to instruct thereon. v. Lewis, 86 Hun, 241, 33 N. Y. Supp. Baldwin v. Walker, 21 Conn. 168. 258. 77 U. S. (C. C. Iowa) Voelker v. S. C. Davis v. Atlanta & C. A. L. Chicago, M. & St._ P. Ry Co 116 , F. rs Hansen v. Kline, 113 N. W. 504, 867, reversed Chicago M. & St P. ^gg ^ ^^^ ^^j,^ V. Missouri, O. & O'^'O A 29J 70 T 'tI A 264 ' ^- ^^^ ^O- "9 P. 17; Missoud. O. V. ; 4 V- , i^' .■,;• T ^ & G. Ry. Co. V. Parker, 151 P. 325, 50 Colo. National Mut Fire Ins Co. okl. 491; Missouri River Transp. Co. V. Sprague, 92 P. 227, 40 Colo. 344. y. Minneapolis & St. L. Ry. Co , 147 Iowa. Andrews v. Chicago G. W. n. w. 82, 34 S. D. 1; Sjong v. Occi- Ry. Co., 105 N. W. 404, 129 Iowa, dental Fish Co., 138 P. 313, 78 Wash. 4. 162 ; Noble v. White, 72 N. W. 556, Because of the state of the evi- 103 Iowa, 352 ; Rogers v. Millard, 44 dence it may be necessary for the Iowa, 466. court to disregard the issue as made Ky. Louisville & N. K. Co. v. Wal- by the pleading, and instruct accord- den, 74 S. W. 694. Ing to the issue made by the evidence. La. Gayarre v. Tunnard, 9 La. Hansen v. Kline, 113 N. W. 504, 136 Ann. 254. Iowa, 101. § 130 INSTRUCTIONS TO JURIES 24& sues. One who, over objection, introduces testimony upon an- issue not raised by the pleadings, cannot object to the giving of a charge based upon such testimony.'^ § 130. Specific applications of rule against broadening issues Under the above rule, in a common-law action for negligent delay in the shipment of live stock, an instruction based upon a cause of actio;i^ given by a statute relating to the feeding and watering of stock while in transit is erroneous.** When the com- plaint only declares on an express contract, it is proper to refuse Ry. Co., 41 S. E. 468, 63 S. C. 370; Id., 41 S. E. 892, 63 S. C. 577. S. D. Totten v. Stevenson, 135 N. W. 715, 29 S. D. 71. Tex. McKee v. Garner (Civ. App.) 168 S. W. 1031 ; see Galveston, H. & S. A. Ry. Co. V. Washington, 63 S. W. 534, 94 Tex. 510, aflHrming judgment 63 S. W. 538, 25 Tex. Civ. App. 600. Wash. Zolavyenski v. City of Aber- deen, 129 P. 1090, 72 Wash. 95 ; Wil- liams v. Wurdemann, 128 P. 639, 71 Wash. 390 ; Johnson v. Caughren, 104 P. 170, 55 Wash. 125, 19 Ann. Cas. 1148 ; Schwaninger v. E. J. McNeeley & Co., 87 P. 514, 44 Wash. 447. Instructions proper iritliin rule. In an action for death by wrongful act, defendant cannot object that the !)etltion does not authorize the sub- mission to the jury of the question whether the engine vchieh ran over deceased was so far distant when he stepped on the tracls that those in charge ought to have seen him, where it asked an instruction involving the same question, and both parties in- t^roduced evidence on that issue. Hilz V. Missouri Pac. Ry. Co., 101 Mo. 36, 13 S. W. 946. An instruction as to provocation or justification of slander- ous words is proper where the evi- dence, admitted without objection, shows that the words were uttered in a street fight in response to a taunt by plaintiff, and the fact that the an- swer to the complaint consisted of de- nials only of the slanderous words alleged did not render the instruction outside the issue. Childs v. Childs, 94 P. 660, 49 Wash. 27. Effect of examination of wit- nesses and oral argument. As un- derstood by the jury, contentions can be presented outside of the plead- ings, by the course of the examina- tion of the witnesses and by oral ar- gument, and if an instruction reciting such a contention is not harmful to the party complaining thereof, it will not be ground for new trial. Georgia S. & F. Ry. Co. V. Perry, 69 S. B. 493, 8 Ga. App. 427. , Testimony of party inconsistent with his pleadings. Instructions which adopt the theory of a party in his testimony on the trial are proper, though such testimony is inconsistent with his pleadings. Boemer Fry Co. V. Mucci, 138 N. W. 866, 158 Iowa, 315. Amendment of pleadings. Where an instruction not authorized by the original petition is authorized by the evidence admitted without objection and by the petition as amended, the giving of such instruction is not error. St. Louis & S. F. R. Co. V. Davis, 132 P. 337, 37 Okl. 340. Irrelevant testimony. It is held, however, that the rule that incompe- tent testimony, admitted without ob- jection, becomes competent, does not apply to irrelevant evidence admitted without objection, and the court, not- withstanding the admission of irrel- evant testimony, must confine the is- sues submitted to the jury to those made by the pleadings. Heiden v. Atlantic Coast Line R. Co., 65 S. E. 987, 84 S. C. 117. In Texas, where the later deci- sions support the text, there are early decisions the other way. Farenthold v. Tell, 113 S. W. 635, 52 Tex. Civ. App. 110. '» Bowen v. Carolina, C. G. & C. Ry. Co., 34 S. C. 217, 13 S. E. 421. ' ' 80 McFall V. Chicago, B. & Q. R. Co., 168 S. W. 341, 181 Mo. App. 142. 249 APPLICABILITY TO PLEADINGS AND EVIDENCE § 130 an instruction that there can be no recovery in this case on an im- plied contract.*! So where, in an action for goods sold, the plea of the defendant is based solely on the breach by the plaintiff of cer- tain alleged express warranties, it is error to instruct on the sub- ject of implied warranties.*" So when, in an action on a note given for the price of an article, the issue is wTiether the plaintiff is a bona fide holder, it will be error to authorize a recovery for the fair market value of the article.** So the court should not submit to the jury the question whether a defendant is negligent in a particular in which no negligence is alleged,** and where, in 81 Cable Ck). v. Shelby, 81 So. 818, 203 Ala. 28. 8 2 Whitlock Printing Press Mfg. Co. V. Williams, 99 S. E. 312, 23 Ga. App. 761. 83 Pratt V. Rounds, 169 S. W. 848, 160 Ky. 358. 84 m. Giithorle v. Chicago Eys. Co., 211 111. App. 390; Wabash R. Co. V. Warren, 113 111. App. 172; Northern Milling Co. v. Mackey, 99 111. App. 57, affirmed Mackey v. North- em Milling Co., 71 N. E. 448, 210 111. 115 ; Chicago & A. R. Co. v. Gore, 96 111. App. 553 ; Illinois Cent. R. Co. v. Chicago Title & Trust Co., 79 111. App. 623; Lebanon Coal & Machine Ass'n v. Zerwick, 77 lU. App. 486 ; Chicago, B. & Q. R. Co. V. Libey, 68 111. App. 144. Ky. Ballard & Ballard Co. v. Durr, 177 S. W. 445, 165 Ky. 632; Proctor Coal Co. v. Beaver's Adm'r, 152 S. W. 965, 151 Ky. 839. Mo. Walling v. Missouri Stair Co. (App.) 227 S. W. 879; Gibson v. City of St. Joseph (App.) 216 S. W. 50 ; Baldwin v. Kansas City Rys. Co. (App.) 214 S. W. 274; Oliver v. St. Louis-San Francisco Ry. Co. (App.) 211 S. W. 699 ; State ex rel. NaHonal Newspapers' Ass'n v. Ellison (Sup.) 176 S. W. 11; Gabriel v. Metropolitan St. Ry. Co., 148 S. W. 168, 164 Mo. App. 56; Craton v. Huntzinger, 147 S. W. 512, 163 Mo. App. 718; Green V. United Rys. Co. of St. Louis, 145 S. W. 861, 165 Mo. App. 14; Gibson V. Freygang, 87 S. W. 3, 112 Mo. App. 594; Schroeder v. St. Louis Transit Co., 85 S. W. 968, 111 Mo. App. 67. N. Y. Stenger v. Buffalo Union Furnace Co., 95 N. Y. S. 793, lOO App. Div. 183. Tex. Lancaster v. Tudor (Civ. App.) 222 S. W. 990; Galveston, H. & S. A. Ry. Co. V. Wilson (Civ. App.) 214 S. W. 773; Houston & T. C. R. Co. V. Crowder (Civ. App.) 152 S. W. 183; Walker v. Metropolitan St. Ry. Co. (Civ. App.) 151' S. W. 1142 ; Kan- sas City M. & O. Ry. Co. of Texas v. Guinn (Civ. App.) 146 S. W. 959. Illustrations of instructioms im- proper within rnle. Where plain- tiff's statement of claim alleged that the negligence causing the accident was that of the conductor in starting the car, it was error to give an in- struction authorizing a verdict for plaintiff if the motorman started the car suddenly. Lerch v. Hershey Transit Co., 92 A. 693, 246 Pa. 473. In an action for injuries to a passen- ger, where the only issue was as to negligence of a porter in closing the vestibule door, causing plaintiff's fall, an instruction, submitting an issue as to liability for misinformation by the conductor, for which plaintiff made no claim, was error. Smith v. Chi- cago, R. I. & P. Ry. Co., 159 N. W. 963, 134 Minn. 404. Where, in an action for injuries to a servant, the petition alleged negligence in order- ing plaintiff to adjust a defective bolt on an angle bar on defendant's rail- road track, and negligence on the part of the section boss in placing his weight on a bar being held by plain- tiff, an instruction as to the bolt hole being too large for the bolt, was er- roneous, as a departure from the pe- tition. Browning v. Chicago, R. I. & P. Ry. Co., 94 S. W. 315, 118 Mo. App. 449. In an action for injuries to a pedestrian by being struck by an au- tomobile, the acts of negligence being § 130 INSTRUCTIONS TO JURIES 250> an action for personal injuries, the only negligence alleged is the failure to do certain specified things, an instruction which refers- merely to want of ordinary care and prudence is too general.*^ Under, the above rule, where an action is based upon the theory of a wanton and willful act by the defendant, the court should not- give instructions authorizng a recovery on proof merely of neg- ligence,*" nor, in such case, should it charge on contributory neg- ligence.*' So an instruction authorizing a recovery for fraud should be limited to the specific acts of fraud alleged.** It is error to instruct, and proper to refuse to instruct, concern- limited to improper speed and failure to warn, the court erred in authoriz- ing a recovery for failure to exercise reasonable care to avoid injury to plaintiff, if it appeared to be immi- nent. Capell V. New York Transp. Co., 135 N. Y. S. 691, 150 App. Div. 723. Where a complaint for Injuries to a pedestrian on a city street made no chai'ge that defendant's wagon was being driven at improper speed, a requested charge, predicated in part on a finding of excessive speed, was properly refused. Delovage v. Old Oregon Creamery Co., 147 P. 392, 76 Or. 430, motion to retax costs denied 149 P. 317, 76 Or. 430. Where com- plaint alleged negligence solely in permitting hole in flooring, which caused plaintiff to trip and injure his thumb on a nail, an instruction that plaintiff should recover if either hole or nail caused accident is erroneous. Stutzman v. Sargent, 165 N. Y. S. 643. The answer in an action for collision pleading certain specific acts as contributory negligence, not hav- ing alleged that plaintiff could have stopped his team in time to avoid the collision after seeing the engine, a charge precluding recovery if he by care could have stopped it was prop- erly refused. St. Louis Southwestern Ry. Co. of Texas v. Tarver (Tex. Civ. App.) 150 S. W. 958. Where a peti- tion for an accident at crossing does not allege that certain obstructions to the view were negligently placed on the right of way, but were only set forth as a basis for avoiding imputa- tion of contributory negligence, an in- struction basing the liability of the company on its negligence In so ob- structing the view is erroneous. Chi- cago, R, I. & P. Ry. Co. V. Assman, 83 P. 1091, 72 Kan. 378. Where plaintiff alleges, as groimd of recovery for in- juries at a crossing, specified acts of^ negligence of the railroad company in failing to give proper signals and the running at a reckless rate of speed,, the court is not warranted in sub- mitting, as an additional ground of recovery, negligence of the defendant In permitting obstructions to the view to remain on its right of way. Mis- souri Pac. Ry. Co. v. Grifl5th, 76 P. 436, 69 Kan. 130. In an action for injuries by a street car, an instruc- tion is defective in referring to ' the failure to keep the car under control, when no such averment was made in the petition. Heinzle v. Metropolitan St. Ry. Co., 81 S. W. 848, 182 Mo. 528. Rule Tvhere allegation of ne$;'li- gence general. If the allegation of negligence is general, it is permissible by instructions to authorize a recov- ery on the finding of any specific acts of negligence proven by the evidence and coming within the general state- ment. Bergfeld v. Kansas City Rys. Co. (Mo.) 227 S. W. 106. 8 5 United Rys. & Electric Co. of Baltimore v. Crain, 91 A. 405, 123 Md. 332. 86 Tognazzini v. Freeman, 123 P. 540, 18 Cal. App. 468; Southern Ry. Co. V. Wiley, 71 S. E. 11, 9 Ga. App.. 249; Consolidated Coal Co. of St. Louis V. Stein, 122 111. App. 310; Union City v. Murphy, 96 K. E. 584, 176 Ind. 597; Chattaroi R. Co. v. Leftwich's Adm'r, 7 Ky. Law Rep. (abstract) 165. 8 7 Southern Ry. Co. v. Fricks, 71 So. 701, 196 Ala. 61. 8 8 Wells V. Houston, 57 S. W. 584,. 23 Tex. Civ. App. 629. 251 APPLICABILITY TO PLEADINGS AND EVIDENCE §130 ing defenses not pleaded.** Thus instructions as to the defense ■of contributory negligence should not be given, and are properly refused, where there is no plea of that defense,^" and a charge on 8 9 Cal. Peters v. McKay & Co., 68 P. 478, 136 Cal. 73. Colo. Denver Auto Goods Co. v. Peerless Radiator Co., 163 P. 855, 62 Colo. 549. Conii. Johnson County Sa\'. Bank V. Walker, 72 A. 579, 82 Conn. 24. Ga. American Ins. Co. v. Bailey & Musgrove, 65 S. E. 160, 6 Ga. App. 424. ni. Cope V. Brentz, 190 111. App. 504. Iowa. Vernon v. Iowa State Trav- eling Men's Ass'n, 138 N. W. 696, 158 lovca, 597; Duffey v. Consolidated Block Coal Co., 124 N. W. 609, 147 Iowa, 225, 30 L. R. A. (N. S.) 1067. Ky. Benge's Adm'r v. Creech, 192 S. W. 817, 175 Ky. 6; Chesapeake & O. Ry. Co. V. Vaughn, 115 S. W. 217. Mass. Letchworth v. Boston & M. R. R., 108 N. E. 500, 220 Mass. 560. Mo. Bauer v. Weber Implement •Co., 129 S. W. 59, 148 Mo. App. 652; United Zinc Cos. v. General Accidents Assur. Coiporation, Limited, of Perth, Scotland, 128 S. W. 836, 144 Mo. App. 380; Miller v. Missouri Fire Brick Co., 119 S. W. 976, 139 Mo. App. 25. Ohio. Louisville & C. Packet Co. V. Long, 34 Ohio Cir. Ct. R. 72, judg- ment afBrmed 106 N. E. 1066, 88 Ohio St. 569. Or. Wolf V. Hougham, 125 P. 301, 62 Or. 264. S. D, Williamson v. Aberdeen Au- tomobile & Supply Co., 155 N. W. 2, 36 S. D. 387. Tex. Texas & Pacific Coal Co. v. Ervin (Civ. App.) 212 S. W. 234; Sherman Ice Co. v. Klein (Civ. App.) 195 S. W. 918 ; Villareal v. Passmore (Civ. App.) 145 S. W. 1086; Galves- ton, H. & S. A. Ry. Co. v. Brown, 77 S. W»832, 33 Tex. Civ. App. 589. Instructions properly refused -nritliin rule. In an action against a railway for breach of contract to carry a dead body, an instruction that, if the body would not in any event have been shipped without pro- vision for an attendant to accompany it, and plaintifC knew thereof and did not make any arrangements for an attendant, she could not recover was properly refused, where there was no pleading that failure to ship was due to such failure of plaintifiE. Missouri, K. & T. Ry. Co. of Texas v. Linton, 141 S. W. 129. In an action for in- juries to plaintifC in alighting frOm a train, where plaintifE's right to re- cover in the absence of a contract of carriage was not raised in the plead- ings, a charge that if defendant was not bound to stop its train where plaintiff attempted to alight, to allow passengers to alight, in the absence of a contract to stop for that purpose, and if plaintifE was riding on the train from the point to which his tick- et read to the place where he alight- ed without payment of fare, he took the risk of alighting safely, though defendant's agent permitted him to ride without payment of fare, was properly refused as tendering an is- sue not within the pleadings. Cornell V. Chicago, R. I. & P. Ry. Co., 128 S. W. 1021, 143 Mo. App. 598. In an action for breach of warranty that hogs were free from cholera, where the seller did not in his answer allege that there had been any want of care on the part of the buyers in treating the hogs after disease was discovered, such issue cannot be submitted to the jury. Stanley v. Day, 215 S. W. 175, 185 Ky. 362. Defense inconsistent with the- ory of party. An instruction, based on a defense not pleaded, is properly overruled, where no amendment of the pleading to conform to proof was sought, and such defense was incon- sistent with defendant's position throughout trial. Tuthill v. Sherman, 165 N. W. 4, 39 S. D. 464. A defend- ant cannot complain of a failure to charge on a theory inconsistent with his defense. Jenness v. Simpson, 78 A. 886, 84 Vt. 127. 9 Ala. Adams v. Crim, 58 So. 442, 177 Ala. 279; Birmingham Ry., Light & Power Co. v. Demmins, 57 So. 404, 3 Ala. App. 359 ; Birmingham § 131 INSTRUCTIONS TO JURIES 252 contributory negligence should be confined to the specific acts of contributory negligence pleaded, and should not submit to the jury any other acts of negligence.'^ An instruction on the measure of damages slrt)uld limit them to those alleged in the declara- tion.82 § 131. Rule that instructions must not be narrower than the pleadings An instruction which narrows the issues as presented b)^ the pleadings, so as to not permit a party to take full advantage of them, is ordinarily erroneous,** and is properly refused ; ** and Ey., Liglit & Power Co. v. Fisher, 55 So. 995, 173 Ala. 623; Louisville & N. R. Co. V. Mulder, 42 So. 742, 149 Ala. 676. Ark. Western Union Telegraph Co. V. Wilson, 133 S. W. 845, 97 Ark. 198. Ga. Southern Ry. Co. v. Weather- by, 98 S. E. 31, 20 Ga. App. 399. Ky. Smith v. Paducah Traction Co., 200 S. W. 460, 179 Ky. 322; Louisville & N. R. Co. v. Mattingly, 57 S. W. 620, 22 Ky. Law Rep. 489. Mich. Pruner v. Detroit United Ry., 154 N. W. 4, 187 Mich. 602. Mo. Dignum. V. Weaver (App.) 204 S. W. 566 ; Loomis v. Metropolitan St. Ry. Co., 175 S. W. 143, 188 Mo. App. 203 ; Zalotuchin v. Metropolitan St. Ry. Co., 106 S. W. 548, 127 Mo. App. 577. N. C. Kivett V. Western Union Telegraph Co., 72 S. E. 388, 156 N. G. 296. Ohio. Cincinnati Traction Co. v. Jamison, 32 Ohio Clr. Ct. R. 336. Or. Adams v. Portland Ry., Light & Power Co., 171 P. 219, 87 Or. 602, L. R. A. 1918D, 526. S. C. Moore v. Greenville Trac- tion Co., 77 S. B. 928, 94 S. C. 249; Bolton V. Western Union Telegraph Co., 57 S. E. 543, 76 S. C. 529. Tex. Ft. Worth & I>. C. Ry. Co. v. Keeran (Civ. App.) 149 S. W. 355; Kansas City, M. & O. Ry. Co. of Texas v. Barnhart (Civ. App.) 145 S. W. 1049; Cox v. Steed, 131 S. W. 246, 62 Tex. Civ. App. 193. Rule vrhere plaintiff's ovm. evi- dence shovrs his negligence. An instruction on contributory negli- gence may be given, though such neg- ligence is not pleaded, where plaintiffs own evidence shows that he was guilty of negligence which contribut- ed to his injury. Pim v. St. Louis Transit Co., 84 S. W. 155,. 108 Mo. App. 713. It is held, however, that it is not incumbent on the court in such a case to instruct on contributory negligence. Bruenn v. North Yakima School Dist. No. 7, Yakima County, 172 P. 569, 101 Wash. 374. Effect of general denial of alle- gations of freedom from fault. Where there is, a general denial of allegations that plaintiff was free from fault or was in the exercise of due care, it is not essential that such defense be specifically pleaded to re- quire proper instructions in regard thereto. Georgia Ry. & Power Co. v. Freeney, 96 S. E. 575, 22 Ga. App. 457. 91 Birmingham Railway & Electric Co. V. City Stable Co., 24 So. 558, 119 Ala. 615, 72 Am. St. Rep. 955 ; Davis V. Paducah Ry. & Light Co., 68 S. W. 140, 24 Ky. Law Rep. 135, 113 Ky. 267; North Texas Gas Co. v. Meador (Tex. Civ. App.) 182 S. W. 708; Mis- souri, K, & T. Ry. Co. of Texas v. Poster (Tex. Civ. App.) 87 S. W. 879 ; Perez v. San Antonio & A. P. Ry. Co., 67 S. W. 137, 28 Tex. Civ. App. 255 ; International & G. N. R. Co. v. Locke (Tex. Civ. App.) 67 S. W. 1082. 8 2 Metcalf V. Chicago Sandoval Coal Co., 211 111. App. 31; Haskell & Barker Car Co. v. Trzop (Ind. App.) 123 N. E. 182; Traw v. Heydt (Mo. App.) 216 S. W. 1009 ; Walker v. Kel- lar (Tex. Civ. AppO 218 S. W. 792. 93 Krieger v. Aurora, E. & C. R. Co., 90 N. E. 266, 242 111. 544; Markle- wltz V. Olds Motor Works, 115 N. W. 999, 152 Mich. 113. »4 Kenyon v. Chicago City Ry. Co., 85 N. E. 660, 235 111. 406, affirming; 253 APPLICABILITY TO PLEADINGS AND EVIDENCE § 132 when the court states to the jury all the issues raised by the pleadings, it must explicitly withdraw an issue, or direct that it shall not be considered, in order to justify its refusal to give a charge submitting that issue.*® Courts, however, have the undoubted right to narrow the issues presented to the jury to such as are contested, and it is eminently proper so to do.** Accordingly, where the parties have given to the pleadings a practical interpretation restrictive of their formal scope, an instruction conforming to such interpretation may be good,*' and . it m.ay be error to refuse an instruction based upon such inter- pretation.** Where, in a negligence case, the proof is of separate specific acts of negligence, the instruction should be restricted to such specific acts, and should not submit general negligence in substantially the language of the complaint.** § 132. Instructions considered with reference to complaint con- taining moire than one count Ordinarily separate instructions for each count in a complaint are desirable.^ But it is not incumbent on the court, in its charge to the jury, to deal separately with the several counts in the peti- tion, as though distinct and independent cases were on trial, nor to instruct the jury to inform the court on which count they find in the event they return a verdict in favor of the plaintiff.^ The failure of an instruction to direct on which count of the petition there may be a recovery, Where such counts state the same cause of action, though in different forms,* and where there is evidence to support each of such counts, is not error.* But, where plain- .ludgment Cllicago City Ry. Co. v. Pleadings loosely drawn or in- Kenyon, 137 111. App. 126 ; Cleveland, definite. It is proper to instruct in C, C. & St. L. Ry. Co. v. Christie, accordance with the interpretation, 100 N. E. 299, 178 Ind. 691. put by tlie parties upon the pleadings, »5 Latman v. Douglas & Co., 127 N. where the same are loosely drawn or W. 661, 149 Iowa, 699. indefinite. Hoyt v. Hoyt, 68 Iowa, 8 8 Wood V. Wells, 61 N. W. 503, 103 703, 28 N. W. 27. Mich. 320. 9 8McBride v. Huckins, 81 A. 528, »7 Legget V. Harding, 10 Ind. 414 ; 76 N H. 206. Struebing v. Stevenson, 105 N. W. ' ' ' ^ 01c .341, 129 Iowa, 25; Reese v. Loose- '"/anies v. Mott (Mo. App.) 215 Wiles Biscuit Co. (Mo. App.) 224 S. S. W. 913. W. 63. 1 Arnold v. Lutz, 120 N. W. 121, Ignoring defense not covered by 141 Iowa, 596. the evidence. An instruction which 2 Gainesville & Dahlonega Electric Ignores a particular matter which ^ q.^ ^ Austin, 56 S. E. 254, 127 would have been a defense had evi- q^^ ]^20. dence with respect thereto been in- ,'iit„ '4 „ 04- T^„f„ rn»„„„;4. nA troduced is not erroneous, where no ,„ S W 838 103 Mo Ann 459 ' such evidence was in fact Introduced. ^^ ^- ^- *''^"' ^"'^ ^°- ^^^- ^°^- Chicago, B. & Q. R. Co. v. Bautsch, * Morris v. Bridgeport Hydraulic 129 111. App. 23. Co., 47 Conn. 279. § 132 INSTRUCTIONS TO JURIES 254 tiff states the same cause of action in different counts, the court should charge that, if the jury finds for him on one of the counts, it should find no damages, or at the most mere nominal damages, on the other counts.^ Where each of several counts in a complaint states a cause of action, an instruction which permits a recovery under any one of the counts is not improper,* and, on the other hand, it is error to instruct that the plaintiff must prove all the material allegations .of each and every count in his complaint.'' £. In Criminal Cases § 133. Rule that instructions should conform to allegations of indictment or to issues raised by plpadings In a criminal case the court should only submit to the jury the law applicable to a state of facts that is pertinent to thd allega- tions of the indictment or information,* and instructions which authorize a conviction or an acquittal of an offense other than that charged in the indictment are erroneous, and are properly 5 Blackmer & Post Pipe Co. v. Mo- bile & O; R. Co., 151 S. W. 164, 168 Mo. App. 22. Joinder of count in contract with count in tort. Where plain- tiff joins a count in contract with a count in tort, for the same cause of action, the court should instruct that he can recover only In one. Hoist v. Stewart, 161 Mass. 516, 37 N. E. 755, 42 Am. St. Rep. 442. 6 Pittsburg, C, C. & St. L. Ry. Co. V. Robson, 68 N. E. 468, 204 111. 254 ; James S. Kirk & Co. v. Jajko, 79 N. E. 577, 224 111. 338. Evidence not justifying recov- ery under some counts. An in- struction that the plaintiff should recover, "if he has made out his case as set forth in his declaration," is ob- jectionable, where there are several counts of the declaration, under two of which the evidence did not justify recovery. North Chicago St. R. Co. V. Polkey, 106 111. App. 98. 7 Harvey v. Chicago & A. Ry. Co., 116 111. App. 507, judgment affirmed 77 N. E. 569, 221 111. 242; Gruenen- dahl V. Consolidated Coal Co., 108 111. App. 644; Chicago & A. R. Co. v. Eselin, 86 111. App. 94; Seltzer v. Saxton, 71 111. App. 229. 8 Ala. Crittenden v. State, 32 So. 273, 134 Ala. 145. Cal. People v. Barbera, 157 P. 532, 29 Cal. App. 604; People v. Cornell, 155 P. 1026, 29 Cal. App. 430; People v. Buckley, 77 P. 169, 143 Cal. 375. Fla. Milligan v. State, 78 So. 535, 75 Pla. 815. Okl. Anderson v. State, 164 P. 128, 13 Okl. Cr. 264. Or. State V. Hamilton, 157 P. 796, 80 Or. 562. Tex. Miller v. State, 195 S. W. 192, 81 Tex. Cr. App. 237; Price v. State, 194 S. W. 827, 81 Tex. Cr. App. 208; Collins v. State, 171 S. W. 729, 75 Tex. Cr. R. 534 ; Johnson v. State, 153 S. W. 875, 69 Tex. Cr. R. 107; Perkins v. State, 138 S. "W. 133, 62 Tex. Cr. R. 508 ; Powell v. State, 131 S. W. 590, 60 Tex. Cr. R. 201. Instructions improper? ivithin rule. In an arson trial, an instruc- tion to acquit if the jury had reason- able doubt as to the identity of a corpse found in the fire as being that of a particular person named In the information was properly refused, where the information did not refer to such person. Goldberger v. People, 101 P. 407, 45 Colo. 327. An instruc- tion in a prosecution for uttering a 255 APPLICABILITY TO PLEADINGS AND EVIDENCE] §i3a. refused,* although the evidence is such as would warrant the jury in finding the defendant guilty of another offense than that al- leged.^" Thus, under an information charging the defendant with only an assault, the case should not be submitted to the jury as assault and battery," and where an information charges the de- fendant with keeping a disorderly house, the instructions must conform to the allegations of the information as to whether he is owner or merely a lessee of the house.^* So where the indict- ment charges the commission of an offense in one of the several modes in which it could be committed, the inculpatory evidence and the instructions must be restricted to the particular mode al- leged,^* and where an information charges defendant with the commission of certain acts conjunctively, an instruction which authorizes a verdict of guilty if he did either one of them is er- roneous." When the defendant is indicted alone as the sole per- fraudulent prospectus that defendant had the right to state that the land "contained oil and formation indicat- ing oil" is properly modified by strik- ing out such phrase where the plead- ings based the fraud on a statement that "this land is made up of more certain indication of oil than any other oil field in California." People V. Merritt, 122 P. 839, 18 Cal. App. 58, rehearing denied 122 P. 844, 18 Cal. App. 58. 9 Ala. "Willis v. State, 33 So. 226, 134 Ala. 429 ; Jacobi v. State, 32 So. 158, 133 Ala. 1. Ark. Kelly v. State, 145 S. W. 556, 102 Ark. 651. Fla. Telfair v. State, 50 So. 578, 58 Fla. 110. Miss. Waller v. State, 103 Miss. 635, 60 So. 725. Mo. State V. Lehman, 75 S. W. 139, 175 Mo. 619; State v. Faulkner, 75 S. W. 116, 175 Mo. 546 ; State v. Robb, 90 Mo. 30, 2 S. W. 1. Neb. Galloway v. State, 129 N. W. 987, 88 Neb. 447. N. Y. People v. "Wright, 117 N. Y. S. 441, 183 App. Div. 133. Tex. Johnson v. State, 186 S. "W. 841, 79 Tex. Or. E. 544; Bodine v. State, 174 S. "W. 609, 76 Tex. Cr. R. 314 ; Fox V. State, 135 S. W. 557, 61 Tex. Cr. R. 341 ; Emerson v. State, 114 S. "W. 834, 54 Tex. Cr. R. 628; Mauld- ing V. State, 108 S. "W. 1182, 53 Tex. Cr. R. 220; Miller v. State (App.) 18 S. "W. 197; Powell v. State, 12 Tex. App. 238. Va. Lane v. Commonwealth, 95 S. B. 466, 122 Va. 916. "Wast. State V. Phillips, 67 P. 608, 27 "Wash. 364. 10 People V. Piercy, 116 P. 822, 16 Cal. App. 13. 11 Johnson v. State, 200 S. W. 982, 132 Ark. 128; Shuffield v. State, 138 S. W. 402, 62 Tex. Cr. R. 556. 12 Goosby V. State, 189 S. "W. 143, 80 Tex. Cr. R. 136 ; Hall v. State, 161 S. "W. 457, 72 Tex. Cr. R. 161. isGipe V. State, 75 N. E. 881, 165 Ind. 433, 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238; Briscoe v. State, 196 S. "W. 183, 81 Tex. Cr. R. 419; Maloney v. State, 125 S. "W. 36, 57 Tex. Cr. E. 435 ; Randle v. State, 12 Tex. App. 250. Instrnctions not improper -nritb- ia rule. An instruction that if ac- cused, with a leather belt, being a deadly weapon, or a weapon calculat- ed to produce death by the manner in which it was used, struck and kill- ed deceased, the jury should find him guilty, was not rendered erroneous because there was no allegation in the indictment that , the belt was a deadly weapon, or "became such from the manner of its use. Lee v. State, 72 S. W. 195, 44 Tex. Cr. R. 460. 14 State V. Brotzer, 150 S. "W. 1078, 245 Mo. 499. Contra, Cabiness v. State, 146 S. W. 934, 66 Tex. Or. R. 409. § 133 INSTRUCTIONS TO JURIES 256 petrator of a crime, an instruction permitting his conviction if he was the accomplice or aider or abettor of another is erroneous.^® When an information is insufficient to charge the offense in- tended, although it sufficiently charges a lesser included offense, an instruction which permits a conviction of the higher offense is reversible error, if the record leaves it uncertain of which of- fense the defendant has been found guilty.^" An instruction that the defendant must be acquitted if the jury have a reasonable doubt arising from a consideration of all the evidence of the guilt of defendant of any offense is erroneous and misleading, as authorizing an acquittal on the existence of a reasonable doubt of guilt of a crime no): charged in the indictment.-'-'' The court cannot, however, be required to -charge specifically that defendant cannot be convicted of a crime other than the one for which he is indicted, . although there is evidence that he is guilty of another crime.'^* § 134. Limitations of rule A violation of the rule that the instructions hiust not be broad- er that the indictment or information will not cause a reversal, where it appears from the record that the jury were not m.isled to the prejudice of the defendant," as where the added words only impose a greater burden upon the state than it is required to sustain.^* Where there is evidence to support an allegation of the indictment, that the victim of the crime was known and called by a certain name, and there is also evidence that he was sometimes called by another name than that , alleged in the indictment, it is not improper to give an instruction predicated upon a finding of such other name.^^ j^ 16 Hollin V. Commonwealth, 165 S. ute abolisbes all distinction between W. 407, 158 Ky. 427, L. R. A. 1915B, principals in the second degree, and 608; Terhune v. Commonwealth, 138 accessories before the fact. State v. S. W. 274, 144 Ky. 370; Mulligan v. Orrick, 106 Mo. Ill, 17 S. W. 176. Commonwealth, 1 S. W. 417, 84 Ky. is Lomax v. State, 43 S. W. 92, 38 229 ; Bean v. State, 17 Tex. App. 60. Tex. Cr. R. 318. See State v. Morgan, 35 W. Va. 260, 13 i^ Stewart v. State, 31 So. 944, 133 S. E. 385. Ala. 105. Effect of statute abolisbing dis- is State v. McLaughlin, 50 S. W. 315, timotion between principals and 149 Mo. 19. accessories. An Instruction, on a i" State v. Bunyard, 161 S. W. 756, trial for murder, that defendant, if 253 Mo. 347. present, aiding and abetting the kill- 20 Thompkins v. Commonwealth, 90 ing of deceased, is as guilty as if he S. W. 221, 28 Ky. Law Rep. 642;, State had done the killing himself, is prop- v. Bunyard, 161 S. W. 756, 253 Mo. er, though the indictment charges de- 347. fendant as principal, and not as ac- 21 Thomas v. State, 38 So. 516, 49 cessory before the fact, since the stat- Fla. 123. 257 APPLICABILITY TO PLEADINGS AND EVIDENCE § 136 § 135. Instructions on conspiracy, althoiugh not alleged in in- dictment Two or more persons engaged in the commission of crime m?.y be prosecuted jointly or severally. Where only one is prosecuted, it may be shown that others Were present participating in the criminal act, although not included in the indictment or informa- tion, so that an instruction authorizing the jury to convict if they find that defendant committed the crime charged while acting alone or in company with others is not broader than an informa- tion charging defendant alone with the commission of the crime.^^ So on trial of two persons jointly indicted for crime, it is not inappropriate to charge on the law of conspiracy, where the evi- dence authorizes such an instruction, merely because the indict- ment does not in terms allege a conspiracy to comrnit the crime. ^* § 136. Instructions where indictment contains more than one count, or where several distinct criminal acts are proved In a criminal case, where different counts in an indictment charge only a single offense and in one degree, merely varying the state- ment of the crime to conform to the evidence which may be given, the court need not charge separately as to each count, but may in one instruction refer to them all, and tell the jury to render a verdict of guilty if they find the defendant to have committed the crime in the manner charged in either count.^* Where the evidence shows that the defendant is guilty, if at all, under one particular count of the indictment, it is proper for the court to confine its instruction to such count ;^^ and where the state elects to go the jury on one of two counts only, instructions submitting the remaining count are erroneous, and properly refused.^* In- structions based on a count of an indictment on which a nolle prosequi has been entered are properly refused.^'' So an instruc- tion authorizing the jury to convict defendant on proof going to establish his guilt under an insufficient charge in the informa- tion is prejudicial error,** and it is, of course, proper for the court to ignore such a defective count in submitting the case to the 2 2 state V. Scullin, 84 S. W. 862, as Johnson v. State, 75 .So. 278, 16 185 Mo. 709. Ala. App. 72; State v. Young, 183 S. =3 Dixon V. State. 42 S. E. 357, 116 f- .^^.'J^S w°-«Jf L ™™^ Z' Ga. 186; McLeroy v. Same, 54 S. St^te 143 S. W. 634 65 Tex. Or. R E. 125, 125 Ga. 240; Davis v. Same, ^' ^]i^^Z\o^ %^^ ^- ^V*^f ' II 54 S. E. 126, 125 Ga'. 299 ; Bradley v. Tex^ %.%^^J^ ^f I ^229 ' '*f«.'I '• ^ T' 'f-.^:;'M- .0. ^^Oakfe/v.'^ltate, 3^-sr693, 135 2* State V. HoUenscheit, 61 Mo. 302. ^j^ 29. 25 State V. Baker, 110 Mo. 7, 19 S. 2 8 Emperly v. State, 41 N. E. 840, W. 222, 33 Am. St. Rep. 414. 13 Indt App. 393. Inst.to Juries— 17 §136, INSTRUCTIONS TO JUE/bS 258 jury,** and where counts in an indictment charging the accused as an accomplice and accessory are withdrawn, it is proper to refuse an instruction defining such terms. ^" Where the indictment charges the defendant with but one crim- inal act, and the state gives evidence of several distinct criminal transactions, instructions which do not limit the jury to the con- sideration of but one of the offenses proven are erroneous.*'^ C. Applicability of Instructions to the Evidence; § 137. Rule that instructions must be based on the evidence. . It is the general rule that instructions must be predicated upon the evidence in the case.^* The propriety of an instruction is 2 9 Shelton v. State, 39 So. 377, 143 Ala. 98; Butler v. State (Tex. Cr. App.) 43 S. W. 992. sodollins V. State, 178 S. W. 345, 77 Tex. Cr. R. 156. 31 People V. Hatch, 109 P. 1097, 13 Cal. App. 521. 3 2 TJ. S. (Sup.) Wilmington Star Min. Co. V. Fulton, 27 S. Gt. 412, 205 U. S. 60, 51 L. Ed. 708. Ala. Duncan v. St. Louis & S. F. R. Co., 44 So. 418, 152 Ala. 118. Ark. Southern Hotel Co. v. Zim- merman, 105 S. W. 873, 84 Ark. 373. Cal. Hamlin v. Pacific Electric Ry. Co., 89 P. 1109, 150 Cal. 776. Colo. Oonquerer Gold Min. & Mill Co. V. Ashton, 90 P. 1124, 39 Colo. 133. D. C. Chapman v. Capital Trac- tion Co., 37 App. D. C. 479. Fla. Florida East Coast Ry. Co. V. Carter, 65 So. 254, 67 Fla. 335, Ann. Cas. 1916E, 1299; Mulllken v. Harrison, 44 So. 426, 53 Fla. 255; Griffing Bros. Co. v. Winfield, 43 So. 687, 53 Fla. 589. Ga. Virginia Bridge & Iron Co. V. Crafts, 58 S. E. 322, 2 Ga. App. 126. 111. Norton v. Clark, 97 N. 15. 1079, 253 111. 557; Kulvie v. Bunsen Coal Co., 97 N. E. 688, 253 111. 386, affirming judgment 161 111. App. 617; Owens v. City of Chicago, 162 111. App. 196; "White v. St. Louis Transfer Co., 161 111. App. 133 ; King V. Gray, 160 111. App. 259 ; Hettinger V. Drew, 160 111. App. 204; Field v. Winheim, 123 111. App. 227. Ind. City of Bloomington v. Woodworth, 81 N. E. 611, 40 Ind. App. 373. Iowa. D. A. Enslow & Son v. En- nis, 135 N. W. 1105, 155 Iowa, 266. Kan. Grubel v. Busche, 91 P. 73, 75 Kan. 820. Ky. Klein v. Klein, 101 S. W. 382, 31 Ky. Law Rep. 28; HoUingsworth V. Barrett, 102 S. W. 330, 31 Ky. Law Rep. 428. Md. Garrett County Com'rs v. Blackburn, 66 A. 31, 105 Md. 226. Mass. Wood V. Skelley, 81 N. E. 872, 196 Mass. 114, 124 Am. St Kep. 516. Mo. Feddeck v. St. Louis Oar Co., 102 S. "W. 675, 125 Mo. App. 24. Mont. Mason v. Northern Pac. Ry. Co., 124 P. 271, 45 Mont. 474. Neb. Eisentraut v. Madden, 150 N, W. 627, 97 Neb. 466, L. R. A. 1915C, 893 ; Boesen v. Omaha St. Ry. Co., 112 N. W. 614, 79 Neb. 381. N. D. McLain v. Nurnberg, lli N. W. 243, 16 N. D. 144. Okl. White v. Oliver, 122 P. 156, 32 Okl. 479. S. C. Worthy v. Jonesville Oil Mill, 57 S. E. 634, 77 S. C. 69, 11 L. R. A. (N. S.) 690, 12 Ann. Cas. 688; Walker v. Western Union Telegraph Co., 56 S. E. 38, 75 S. C. 512. Tenn. Three States Lumber Uo. V. Blanks, 102 S. W. 79, 118 Tenn. 627. Tex. Trinity & B. V. Ry. Co. v. Geary (Civ. App.) 144 S. W. 1045; 259 APPLICABILITY TO PLEADINGS AND EVIDENCE § 137 to be determined, not by whether it embodies a correct state- ment of the law upon a given state of facts, but by whether it states the law relevant to. the issuable facts given in evidence on the trial,** and instructions which are not supported by the evi- dence, or which svibmit to the jury , issues not raised by it, or which are contrary to the facts, are usually erroneous,'* and are properly refused.*^ Wichita Falls & W. Ry. Co. v. Wy- riek (Civ. App.) 147 S. W. 694. Utai, Smith v. Cannady, 147 P. 210, 45 Utah, 521; Jensen v. Utah Light & Ky. Co., 132 P. 8, 42 Utah, 415; Rogers v. Rio Grande Western Ry. Co., 90 P. 1075, 32 Utah, 367, 125 Am. St. Rep. 876; Belnap v. Widdison, 90 P. 393, 32 Utah, 246. Va. Neal & Binford v. Taylor, 56 S. E. 590, 106 Va. 6S1; Norfolk & W. Ry. Co. V. Stegall's Adm'x, 57 S. E. 657, 107 Va. 231. Wash. Brydges v. Ciinningham, 124 P. 131, 69 Wash. 8. - W. Va. Wilhelm v. Parkersburg, ■M. & I. Ry. Co., 82 S. B. 1089, 74 W. Va. 678. 3 3 Hatton V. Hoaeil Furniture Co. {Ind. App.) 125 N. B. 797. 84 U. S. (C. C. A. Miss.) Postal Telegraph-Cable Co. v. Box, 185 F. 489, 107 C. C. A., 589 ; (C. C. A. N. J.) Pennsylvania R. Co. v. Buckley, 210 F. 268, 127 C. C. A. 86. Ala. Alexander v. Smith, 61 So. 68, 180 Ala. 541. Ark. Choctaw, O. & G. R. Co. v. Thompson, 100 S. W. 83, 82 Ark. 11. Cal. Neher v. Hansen, 107 P. 565, 12 Cal. App. 370. Conn. Kishalaski v. Sullivan, 108 A. 538, 94 Conn. 196 ; Carlsdn v. Con- necticut Co., 108 A. 531, 94 Conn. 131, 8 A. L. R. 569; Board of Water Com'rs of City of New London v. Bobbins & Potter, 74 A. 938, 82 Conn. 623 ; First Nat. Bank v. Brenner, 72 A. 582, 82 Conn. 29. ria. Farnsworth v. Tampa Elec- tric Co., 57 So. 233, 62 Fla. 166. Ga. Bank of Lavonia v. Bush, 79 S. B. 459, 140 Ga. 594; Savannah Electric Co. v. Jackson, 64 S. E. 680, 132 Ga. 559. Idaho. Smith v. City of R«xburg, 132 P. 1153, 24 Idaho, 176, Ann. Cas. 1915B, 276. ■ 111. Kalinski v. Williamson Coun- ty Coal Co., 104 N. E. 1097, 263 111. 257, reversing judgment 183 111. App. 541 ; Loescher v. Consolidated Coal Co., 102 N. E. 196, 259 111. 126, affirm- ing judgment 173 111. App. 526 ; . Mor- een V. Devillez, 212 111. App. 208; Kaufman v. Helmick, 212 111. App. 10; Koehn v. Tomlinson, 134 111. App. 256. ' Ind. New York, C. & St. L. By. Co. V. Lind, 102 N. E. 449, 180 Ind. 38. Iowa. Arnold v. Ft. Dodge, D. M. & S. R. Co., 173 N. W. 252, 186 Iowa, 538; Plantz v. Kreutzer & Wasem, 154 N. W. 785, 175 Iowa, 562 ; Owens V. Norwood White Coal Co., 138 N. W. 488, 157 Iowa, 389, reversing judgment on rehearing 133 N. W. 716. Kan. Sly v. Powell, 123 P. 881, 87 Kan. 142. Ky. Moors v. Kentucky Electrical Co., 208 S. W. 15, 182 Ky. 825 ; Stony Fork Coal Co., v. Lingar, 153 S. W. 6, 152 Ky. 87; Hartford Mill Co. v. Hartford Tobacco Warehouse Co., 121 S. W. 477. Me. Lunge v. Abbott, 95 A. 942, 114 Me. 177. Md. Fast V. Austin, 107 A. 540, 135 Md. 1; Anne Arundel County Com'rs V. Carr, 73 A. 668, 111 Md. 141. Mass. Kerr v. ShiurtleflE, 105 N. E. 871, 218 Mass. 167. Mich. Sorensen v. Sorensen, 179 N W. 236, 211 Mich. 429; Lunde v. Detroit United Ry., 143 N. W. 45, 177 Mich. 374; Swift & Co. v. Me- MuUen, 134 N. W. 1109, 169 Mich. 1 ; Reese v. Detroit United Ry., 124 N. W. 539, 159 Mich. 600. Minn. Johnson v. Smith, 173 N. W. 675, 143 Minn. 350; Burmeister V. Giguere, 153 N. W. 134, 130 Mmu. 8 5 See note 35 on page 267. §137 INSTRUCTIONS TO JURIES 260 As has already been indicated, this rule applies to instructions 28; Johnson v. Sartell Bros. Co., 150 N. W. 784, 128 Minn. 239. Miss. Western Union Tel. Co. v. Robertson, 69 So. 680, 109 Miss. 775 ; McLeod Lumber Co. v. Anderson Mercantile Co., 62 So. 274, 105 Miss. 498. Mo. Simon v. Metroiwlitan St. Ry. Co. (App.) 213 S. W. 14*7; Teter V. Central Coal & Coke Co., 213 S. W. 135, 201 Mo. App. 538 ; J. W. Mey- er Mfg. Co. V. Sellers, 182 S. W. 789, 192 Mo. App. 489; Springfield Crys- tallized Egg Co. V. Springfield Ice & Refrigerating Co., 168 S. W. 772, 259 Mo. 664 ; Haas v. American Car & Foundry Co., 157 S. W. 1036, 176 Mo. App. 314. Mont. Kelley v. John R. Daily Co., 181 P. 326, 56 Moflt. 63; West- ern Mining Supply Co. v. Melzner, 136 P. 44, 48 Mont. i(4; T. C. Pow- er & Bro. V. Turner, 97 P. 950, 37 Mont. 521. Neb. Zancanella v. Omaha & C. B. St. R. Co., 142 N. W. 190, 93 Neb. 774; Clingan v. Dixon County, 118 N. W. 1082, 82 Neb. 808. Nev. Zelavin v. Tonopah. Bel- mont Development Co., 149 P. 188, 39 Nev. 1 ; Mirodias v. Southern Pac. Co., 145 P. 912, 38 Nev. 119. N. H. Hobbs V. George v. Blan- chard & Sons Co., 70 A. 1082, 75 N. H. 73, 18 L. R. A. (N. S.) 939. N. M. Thayer v. Denver & R. G. R. Co., 154 P. 691, 21 N. M. 330. N. Y. Geiger v. E. W. Emery Co. (Sup.) 180 N. y. S. 550; Rosenberg V. Goldstein (Sup.) 146 N. Y. S. 1009. N. C. Craig & Wilson v. Stewart, & Jones, 79 S. E. 1100, 163 N. C. 531. Ohio. Cincinnati Traction Co. v. Jamison, 32 Ohio Cir. Ct. R. 336. Okl. Bilby v. Owen (Sup.) 181 P. 724; Hurst v. Hill, 122 P. 518, 32 Old. 532. Or. State V. Stiles, 160 P. 126,' 81 Or. 497; Schumacher v. Moffltt, 142 P. 353, 71 Or. 79; Pacific Ry. & Nav. Co. V. Elmore Packing Co., 120 I'. 389, 60 Or. 584, Ann. Cas. 1914A, 371. Pa. Rick V. New York, C. & St. L. R. Co., 81 A. 650, 232 Pa. 553. R. I. Baran v. Silverman, 83 A. 263, 34 R. I. 279, Ann. Oas. 1914B, 997. S. D. Pease v. Cochran, 173 N. W. 158, 42 S. D. 130, 5 A. L. R. 936; Larson v. Chicago, M. & P. S. Ry. Co., 141 N. W. 353, 31 S. D. 512. Tex. Gulf, C. & S. F. Ry. Co. v. Helms Bros. (Civ. App.) 211 S. W. 597; Wells Fargo & Co. Express v. Gentry (Civ. App.) 154 S. W. 863; Dupree & McCutchan v. Texas & P. Ry. Co. (Civ. App.) 96 S. W. 647. Utah. ■ Bakka v. Kemmerer Coal Co., 134 P. 888, 43 Utah, 345. Vt. Brown v. People's Gaslight Co., 71 A. 204, 81 Vt. 477, 22 L. R. A. (N. S.) 738. Va. Whealton & Wisherd v. Doughty, 72 S. E. 112, 112 Va. 649. Wash. RasteUi v. Henry, 181 P. 643, 73 Wash. 227; Gates v. Bekins, 87 P. 505, 44 Wash. 422. W. Va. Blagg v. Baltimore & O. R. Co., 98 S. E. 526, 83 W. Va. 449; Gay V. Gay, 83 S. E. 75, 74 W. Va. 800; Greer v. Arrington, 79 S. E. 720, 72 W. Va. 693. Wis. Speliopoulos v. Schlick, 109 N. W. 568, 129 Wis. 556. Wyo. Justice V. Brock, 131 P. 38, 21 Wyo. 281. Instructions improper TPithin rule. In an action for assault and battery, where plaintiff testified to an assault amounting to rape and defendant denied having or solicit- ing sexual intercourse with her, or even having touched her person, a request for a charge on the question of consent was properly refused. Niebyski v. Welcome, 108 A. 341, 98 Vt. 418. Insti'uction authorizing .iu- ry to consider defendant's financial condition, business, or station in society, in assessing plaintiff's dam- ages for assault, was unwarranted, where there was no competent evi- dence as to such facts. Traw v. H'eydt (Mo. App.) 216 S. W. 1009. Where in an action for damages caused by the collapse of a building during alteration, plaintifC alleged noncompliance with an ordinance re- quiring the issuance of a building permit before the building altera- 261 APPLICABILITY TO PLEADINGS AND EVIDENCE) §137 which correctly declare the law as an abstract, proposition,^^ and tlons were commenced, and defend- ant sought to prove what had been done with reference to securing a permit before the commencement of the worli, but the court sustained plalntifC's objection, and stated that he did not see how the permit was material, as in the view he tools of the case it would go to the jury on the single proposition whether the work was done in a negligent man- ner, and the matter was not again' referred to, but the court charg?d that in determining whether defend- ants were negligent the jury might consider the fact that the city ordi- nances required a permit to be ob- tained, the fact that one was not obtained, and whether the omission contributed to the injury, it was held that such instruction submitted an issue on which defendant had not been heard, and was erroneous. Western Real Estate Trustees v. Hughes (C. C. A. Neb.) 153 P. 560, 82 C. G. A. 514. In an action against initial carrier and connecting car- riers for loss of cattle, the court erred in submitting an issue as to the liability of the connecting car- riers, where the evidence was undis- puted that the cattle were lost while in the hands of the initial carrier. Panhandle & S. F. Ry. Co. v. Claren- don Grain Co. (Tex. Civ. App.) 215 S. W. 866. Where, in an action against a carrier for injuries receiv- ed by a shipper of a horse in con- sequence of being kicked by the horse while in the ear with it, there was no pleading nor evidence that the shipper agreed to ride in the car with the horse, with the door open and the horse untied, and the evi- dence showed that he protested against so riding and that he was forced to do so or take the chances of his horse being injured, an in- struction that, if the shipper con- sented that the car might be moved to a railroad yard with the door open and the horse untied, he could not recover was properly refused. Houston & T. C. R. Co. v. Wilkins (Tex. Civ. App.) 98 S. W. 202. An instruction in an action against a carrier for injury to a passenger on a second passenger attempting to 3 8 Colo. Gray v. Sharpe, 67 P. 351, 17 Colo. App. 139. Ga. Western & A. R. Co. v. Kinna- mon, 67 S. B. 799, 134 Ga. 217 ; Bird V. Benton & Bros., 56 S. E. 450, 127 Ga. 371. 111. Lyons v. Joseph T. Ryerson & Son, 90 N. E. 288, 242 111. 409 ; Bren- nen v. Chicago & Carterville Coal Co., 89 N. E. 756, 241 111. 610. Ind. Domestic Block Coal Co. v. De Armey, 100 N. E. 675, 179 Ind. 592; Indiana Union Traction Co. v. Ohne, 89 N. E. 507, 45 Ind. App. 632. Iowa. Scurlock v. City of Boone, 121 N. W. 369, 142 Iowa, 684; Het- land V. Bilstad, 118 N. W. 422, 140 Iowa, 411. Kan. Gregg v. George, 16 Kan. 546; Jaedicke v. Scrafford, 15 Kan. 120. Mass. Beckle^ v. Boston Elevated Ry. Co., 101 N. B. 145, 214 Mass. 311. Mo. Roberts v. City of Piedmont, 148 S. W. 119, 166 Mo. App. 1; Wil- liamson v. St. Louis & M. R. R. Co., 113 S. W. 239, 133 Mo. App. 375; Franz V. Hilterbrand, 45 Mo. 121 ; Kelthley V. Southworth, 75 Mo. App. 442. Nev. Week V. Reno Traction Co., 149 P. 65, 38 Nev. 285. N. J. Ploeser v. Central R. Co. of New Jersey, 105 A. 228, 92 N. J. Law, 490. N. Y. Hanlon v. Central R. Co. of New Jersey, 79 N. E. 846, 187 N. Y. 73, 10 L. R. A. (N. S.) 411, 116 Am. St. Rep. 591, 10 Ann. Cas. 366, affirm- ing judgment 96 N. Y. S. 1127, 110 App. Div. 918. N. C. Schloss-Bear-Davis Co. v. Louisville & N. R. Co., 88 S. E. 476, 171 N. C. 350. Okl. Fowler v. Fowler, 161 P. 227 61 Okl. 280, L. R. A. 1917C, 89. S. D, Klink v. Quinn, 156 N. W. 797, 37 S. D. 83. Tex. Stoker v. Fugitt (Civ. App.) 113 S. W. 310 ; Louisiana Western Ex- tension Ry. Co. V. Carstens, 47 S. W. 36, 19 Tex. Civ. App. 190. W. Va. Bond v. National Ftre Ins. Co., 88 S. E. 389, 77 W. Va. 736. § 137 INSTEUCTIONS TO JURIES 262 the fact that instructions are applicable to the issues raised by shoot a third, making the carrier lia- ble if the baggage master lent a pis- tol to the third passenger, who pro- voked the shooting, knowing why he wanted the pistol, was error, where there was no evidence that the bag- gage master knew, or had reason to know, that the pistol was borrowed for an unlawful purpose. Penny v. Atlantic Coast Line B. Co., 68 S. E. 238. 153 N. C. 296, 32 L. R. A. (N, S.) 1209. Where a boy 12 years old boarded a street ear with the permis- sion of the motorman, who had no authority to permit him to do so, and the conductor, while the car was in motion, ordered the boy to leave, and seized a broom and advanced toward him in a threatening manner, repeating the order, and the boy dodged, lost his equilibrium, fell from the car, and was injured, it was held that the court properly re- fused to charge that, as the boy was not a passenger, it was the duty of the conductor to prohibit him from riding, and, if the boy stepped from the car at the command of the con- ductor, there could be no recovery; there being no evidence to support such instruction. Drogmund v. Met- ropolitan St. Ey. Co.. 98 S. W. 1091, 122 Mo. App. 154. Where in an ac- tion by the owner of a parcel, which she gave to a messenger employed by defendant tjelegraph company for de- livery within the city, for damages for its misdelivery, the court in- structed that, if plaintiff delivered a package containing articles of greai, value, without notifying the messen- ger boy that it contained articles of great value, she was negligent, and could not recover, and further in- structed that, if no notice of the con- tents of the package was given to the company, plaintiff could not recover, and that it was a matter of common knowledge that defendant's business included only the delivery of pack- ages of small valine, It was held that the instructions were erroneous and misleading, there being no evidence that the company had established any rules exempting It from liability if packages of ordinary merchandise which it engaged to deliver were lost, or of any general custom of com- panies engaged in a. similar business accepting only packages of small value. Murray v. Postal Telegraph & Cable Co., 96 N. E. 316, 210 Mass. 188, Ann. Gas. 1913C, 1183. Instruc- tions which predicate a right of re- covery on an Implied contract are erroneous, where the subject-matter of the plaintiff's claim wag covered by an express contract and no Im- plied contract has existed as a mat- ter of law. Ballard v. Shea, 121 111. App. 135. An instruction in an ac- tion on a contract wherein defend- ants made counterclaim for taxes al- leged to have been paid by them, that, if the jury found that the con- tention of defendants as to the na- ture of the contract was true and al- so their claim for taxes paid, they should allow the same, was errone- ous, where plaintiffs on the undisput- ed evidence were not as a matter of law personally liable to defendants for the taxes paid. Stitt v. Rat Portage Lumber Co., 116 N. W. 643, 104 Minn. 347. In a personal injury action, it was error for the court to advise the jury that they might al- low damages for permanent injury, where there was no sufficient evi- dence that the injuries were perma- nent. Fitzgerald v. Detroit United Ry., 172 N. W. 608, 206 Mich. 273. In an action for personal injuries, the charge of the court that, if the jury found that plaintiff had sus- tained injuries which made him the object of pity to his fellow men, and the object of ridicule to the thoughtless, and which deprived him of the comfort and companion- ship of his fellow men, the one causing the Injury should respond in damages therefor, was held er- ror, in the absence of evidence dis- closing an injury which would shock the senses of fair-minded men, or invite the unfeeling to ridicule. Lynch V. Northern Pac. Ry. Co., 120 P. 882, 67 Wash. 113. In an action for injuries to a child caused by defendant's negligently leaving a live wire in a public place unguard- 263 APPLICABILITY TO PLEADINGS AND BVIDBNCB § 137 the pleadings does not prevent the application of such rule to ed, an instruction requested by de- fendant that, if the parents were negligent In failing to provide proper medical attention, and that this neg- ligence contributed to the injury com- plained of, plaintiff could not recover was properly refused, where the proof showed that, on the day fol- lowing the shock, and as soon as. the serious nature of the injury was dis- covered, the parents called a compe- tent physician who attended plaintiff until the day of the trial, and that another competent physician was called in consultation a few days aft- er the accident and again later. Col- orado Springs Electric Co. v. Soi)er, 88 P. 161, 38 Colo. 126. Where, In an action for the death of a child by an electric shock on seizing a hanger wire to light an electric street lamp, there could he no doubt that, if any negligence of the decedent was found, his negligence directly related to the injury and there was no room for any intervening cause, the refusal to charge that, If decedent was guilty of negligence, his negligence would not defeat a recovery unless the neg- ligence contributed proximately to cause the death, was hot erroneons. Charette v. Village of L'Anse, 117 N. W. 737, 154 Mich. 304. In an ac- tion against an electric light compa- ny to recover for the death of plain- tiff's husband caused by contact with a live wire, where there is no evi- dence that the defendaiit maintained a common nuisance or was guilty of wanton negligence, it is error to refer to the negligence of decedent as "light," and that of defendant as "heavy." Weir v. Haverford Elec- tric Light Co., 70 A. 874, 221 Pa. 611. In an action of attachment, based upon fraud, an instruction as to the necessity of the plaintiff acting promptly after discovery of the false representations and not sleeping on his rights was improper, as being in- applicable to the evidence, whera plaintiff commenced suit within two days after discovery of the fraud. Lawler v. Herren, 210 111. App. 203. An instruction, in an action for alienation of a wife's affections, that the acts of the wife and daughter of one of the defendants in inducing' ■plaintiff's wife to abandon him did not bind the d&fendants, unless they acted under defendants' directions, and the burden of proving that fact was on plaintiff, unless the jury found that either of the defendants was present aiding and abetting the wife and daughter, was erroneous as to a defendant who the undisputed evidence showed was not present aid- ing and abetting, as it virtually as- sumed that the,re was a conspiracy between him and such other defend- ant, who alone was present, so as to , render him liable for acts done in his absence. Boland v. Stanley, 115 S. W. 163, 88 Ark. 562, 129 Am. St. Rep. 114. Where, in an action for injuries to a servant from allegea defective machinery, there was no evidence that machines like the one in suit were liable to often get out of order, and the evidence tended to show that with ordinary care and at- tention the machine in question was not liable to get out of order, a re- quest to instruct that "machinery often gets out of order," etc., was properly refused. Nutt v. Isensee, 119 P. 722. 60 Or. 395. An instruc- tion including the statement that a servant may become a vice principal by being placed in exclusive charge of the work, and that there is no evidence in the case that the servant whose negligence caused the injury was so placed in exclusive charge of the Work, and hence he would not be a vice principal, was properly refus- ed, where the evidence is conclusive that he was placed in exclusive charge of making a repair, though not in exclusive charge of the entire establishment. Mortenson v. Hotel Nicollet Co., 136 N. W. 306, 118 Minn. 29. Where there is no evidence that a servant injured by defects in the machinery knew of the same, it was not error to refuse to instruct on principles of law applicable to in- juries received from defects in ma- chinery \i-hich it was the servant's duty to report to his master. Mc- §137 INSTRUCTIONS TO JURIES 264 them,*'' with the limitation that it is not error for the court to Carley v. Glenn-Lowry Mfg. Co., 56 S. E. 1, T5 S. C. 390. Where, iii a car repairer's action for injuries, there was no evidence that defendr ant's officers knew of any violation of it's rule made for the protection of car repairers, it was error to in- struct that plaintiff could recover if defendant had not enforced this rule. Garlinghouse v. Michigan Cent. H.. Co., 140 N. W. 646, 174 Mich. 73. Where the undisputed evidence was that an employe had entire charge of the master's husiness at the place of injury, with authority to designate another servant to ta,ke charge of the work in which plaintiff was injured with as much authority as plaintiff claimed for the servant so designat- ed, it was not error to refuse a charge that the jury must find that the employe in charge had authority to designate an overseer before they could find that a servant, so desig- nated, had authority to act as fore- man. Doyle V. Melendy, 75 A. 881, 83 Vt. 339. Where, in an action for injuries to an employe caused by a defective chisel, there was evidence that the employfi had no knowledge or opportunity of knowledge of the condition of the chisel prior to the acc-ident, an Instruction that the em- ployer was not required to inspect simple tools like a chisel, the con- dition of which is as obvious to one person as to another, was properly refuspd. Baltimore & O. S. W. R. Co. V. Walker, 84 N. E. 730, 41 Ina. App. 588. Where the appellee, a mi- nor, was working in the yards of a railway company, and while carrying iron bars across the tracks under the direction of his foreman was struck by a car which was being switched, and in his complaint for the injuries received alleged the negligence of the company in making a "kicking" switch, and the court, at appel- lee's request, charged that it waa the duty of the company to furnish a reasonably safe place to work and to warn him of any dangers not obvious to an ordinarily prudent per-^ son, and that the failure in such duty would entitle the plaintiff to a verdict, it was held that the com- pany's liability, if any, ajrose from the negligence of its servants in switching cars on a track next to standing cars, and not to any failure of the company to furnish a safe place to work, and hence the instruction was erroneous as not having applica- tion to the facts. New Orleans & X. E. R. Co. v. Williams, 53 So. 619, 96 Miss. 373. The inapplicable instruc- tion announcing the rule of the mas- ter's duty to furnish a safe place to work, in an action for a servant's death while running in front of a train far from his working place, is confusing, if not misleading. Melz- ner v. Chicago, M. & St. P. Ry. Co., 153 P. 1019, 51 Mont. 487. In an ac- 3 7 Ala. Anniston Electric & Gas Co. V. Anderson, 66 So. 924, 11 Ala. App. 554. Colo. Fireman's Fund Ins. Co. v. Barker, 6 Colo. App. 535, 41 P. 513. Ga. Bateman v. Cherokee Fertiliz- er Co., 93 S. B. 1021, 21 Ga. App. 158 ; City of Rome v. Ford, 79 S. E. 243, 13 Ga. App. 386. Iowa. Ott V. Murphy, 141 N. W. 463, 160 Iowa, 730. Ky. City of Campbellsville v-. Mor- gan, 150 S. W. 521, 150 Ky. 417; Owensboro Wagon Co. v. Boling, 107 S. W. ^64, 32 Ky. Law Rep. 816. Mo. Ostopshook V. Cohen-Schwartz Rail & Steel Co. (App.) 227 S. W. 642 ; Riley v. City of Independence, 167 S. W. 1022, 258 Mo. 671, Ann. Gas. 1915D, 748. Ohio. Boviard & Seyfang Mfg. Co. v. Maitland, 110 N. E. 749, 92 Ohio St. 201. Okl. Missouri, K. & T. Ry. Co. v. Taylor (Sup.) 170 P' 1148 ; Miller Bros. V. McCall Co., 133 P. 183, 37 Okl. 634. Tex. Norton v. Lea (Civ. App.) 170 S. W. 267; Thos. Goggan & Bro. v. Goggan (Civ. App.) 146 S. W. 968; National Biscuit Co. v. Scott (Civ. App.) 142 S. W. 65; Trinity & B. V. Ry. Co. V. Bradshaw, 107 S. W. 618 ; Graham v. Edwards (Civ. App.) 99 S. W. 436. Va. Southern Ry. Co. v. Foster's Adm'r, 69 S. E. 972, 111 Va. 763. 265 APPLICABILITY TO PLEADINGS AND EVIDENCE 137 state the contentions of the parties as presented by the pleadings, tion to recover for injuries to a serv- ant, an instruction that plaintiff could not recover unless there was a custom to give notice of danger, of which there was no evidence, was er- roneous. Marshall v. Chicago, K. I. & P. Ry. Co., 149 N. W. 296, 127 Minn. 244. In an action by one injured in attempting to place an electric motor on a track, instruction that, if a sud- den starting of the motor was order- ed without warning to assist in get- ting it upon the track, etc., is er- roneous, where there was nothing to show that such starting of the ma- chine would have been of assistance. Carrington v. Holbrook, Cabot & Rol- lins (Sup.) 157 N. t. S. 457. Where, in an action for injuries to an em- ploye in consequence of a defective machine, there was no evidence that a defect in the lever attached to the machine contributed to the injury, an instruction authorizing a recovery if the lever was so defective that it could not be efficiently used was er- roneous. Harris Lumber Co. v. Mor- ris, 96 S. W. 1067, 80 Ark. 260. Where, on the trial of an action to recover damages for cutting trees, defendant admitted that the cutting was done by his servants and no claim was made that he was not liable for their acts beyond the scope of their employ- ment, nor as to the distinction be- tween the relation of master and servant and that of employer and contractor, there was no occasion to instruct that the acts of the s^irvant beyond the scope of his employment are not the acts of the master, and to explain the distinction between the relation of master and servant and that of employer and contractor. Avery v. White, 66 A. 517, 79 Conn. 705. Where, in an action against the owner of a building for damages sus- tained in falling upon an icy side- walk, it did not appear that there wag any understanding that the oc- cupants of the building were to have any care over the exterior of the building or even/ to report to the owner any defect which they might observe, a requested instruction thai, if there was any understanding that the landlord should make repairs for the tenant, he would not be liable, until he had notice from the tenant, was properly refused. Smith v. Pres- ton, 71 A. 653, 104 Me. 156. An in- struction that a city is required to use ordinary care to keep its streets in a reasonably safe condition for travel, and that whether the streets are in such a condition is a question of fact to be determined in each case by the particular circumstances, cor- rectly states an abstract proposition of law, applicable to a street tni^ whole width of which has been open- ed and worked for public travel, but is inapplicable to a street only part of which has been prepared for public travel, and is misleading in such a case, as leading the jurors to assume that it is the duty of a city to make and keep all of its streets in a rea- sonably safe condition throughout their entire width at all times and under all circumstanced. Herndon v. Salt Lake City, 95 P. 646, 34 Utah, 65, 131 Am. St. Rep. 827. In an action against an executrix for money lent by plaintifC to decedent, based on the tlieory that defendant was liable be- cause a part payment was made by decedent under circumstances show- ing an Intention of taking the debt out of the statute of limitations, and there was no evidence from which it could be inferred that the payment was not an acknowledgment of a bal- ance due or promise to pay a balance, a requested charge that, unless the payment was made under circum- stances such that it could be inferred that there was an acknowledgment of a larger sum and a promise to pay the balance thereof, defendant should recover, was properly refused. GafC- ney v. Mentele, 119 N. W. 1030, 23 S. D. 38. Where, in an action for death of a traveler at a railroad cross- ing, the condition of the crossing was not shown to have had anything to do wijth the collision, and the passage of decedent's wagon over the crossing was not impeded, an instruction call- ing attention to the dangerous char- acter of the OTOSsing and charging that if it was of such a character as 137 INSTEUCTIONS TO JURIES 266 although there is no evidence, or insufficient evidence, to sup- to enhance the danger of accidents at the crossing it was the duty of de- fendant's servants, in running trains, to exercise care commensurate *ith the danger reasonably to be appre- hended, was erroneous. Porter v. Missouri Pae. Ey. Co., 97 S. W. 880, 199 Mo. 82. Where, in an action for the death of a i)edestrian, there was no evidence that decedent saw the train, but he could have heard it approaching, an instruction that the purpose of signals is to warn persons of the approach, of a train, and if decedent saw or heard the train ap- proaching, that he did not hear the engine bell or whistle is immaterial, wag erroneous because not sustained by the evidence. Feldman v. St. Louis, I. M. & S. Ey. Co., ir.8 S. W. 88, 175 Mo. App. 629. In an ac- tion for the death of a person struct by a train at an ordinary country crossing, it was error to instruct that if the crossing was unusually danger- •ous it was the railroad company's du- ty to use such means to prevent inju- !ry to travelers at the crossing as might be considered necessary by an ordinarily prudent person operat- ing- a railroad in the exercise of rea- sonable judgment. Louisville & N. R. Co. V. Oman's Adm'r, 110 S. W. 380, 33 Ky. Law Kep. 462. Where, in an action on a contract for the sale of a cash register, there was no proof of an agreement for the rescission of the sale in a conversation between de- fendant and plaintiff's salesman aft- er the sale, but the agent merely re- ferred defendant to' plaintiff, and there wag no other evidence of plain- tiflfs consent to a resscission, an in- struction that the parties to a sale may afterwards agree to rescind the contract, in which case the seller can- not afterwards recover the price, was inapplicable to the evidence. McOas- key Kegister Co. v. Curfman, 90 N. E. 323, 45 Ind. App. 297. In an action against a street railroad) for the death of a member of the fire depart- ment in a collision between a hose wagon and a car, an instruction that the jury" must consider whether the motorman was negligent in not stop- ping or checking the speed of the car, if he could have stopped it, was er- roneous ; there being no question un- der the evidence as to the ability of the motorman to stop the car or check its speed in time to have avoid- ed the accident, but the question be- ing whether he was negligent In not doing so. McBride v. Des Moines City Ey. Co., 109 N. W. 618, 134 Iowa, 398. In an action for injuries to plaintiff's automobile, caused by running off an unrailed culvert on a curve of the road, it was not error to refuse an instruction that the town would not be liable if plaintiff diverg- ed from the traveled road without necessity; such instruction not being adapted to the evidence, which did not show a voluntary divergence but an accidental encounter of danger. Bancroft v. Town of East Montpelier, 109 A. 39, 94 Vt. 163. Where, In an action for damages from an error in a telegram, resulting in the plaintiff real estate brokers selling property at a sum which left them no commis- sion, there was no evidence that plain- tiffs acted as agents for both the vendor and purchaser, it was error to instruct on a broker's lack of right to commission, where he acts for both parties. Levy Bros. v. Western Un- ion Telegraph Co., 135 P. 423, 39 Okl. 416. It is not error to refuse an in- struction that, if a mortgagor de- manded a receipt, his tender was not unconditional, where the evidence shows that the mortgagor asked for his note and mortgage, but did not make their delivery a condition of the payment, and the mortgagee re- fiised the tenddr, because the mort- gagor threatened to sue for damages. Smith-Wogan & Co. v. Bice, 125 P. 456, 34 Okl. 294, Ann. Cas. 19140, 274. Where, in trespass to try title, defendant relied on title by adverse possession, and showed that the land had been In possession of tenants, but did not show the length of the intervals between the occupancy of different tenants, the submission to the jury of the question as to the rea- sonableness of such intervals was not proper. Dunn v. Taylor, 113 S. W. 267 APPLICABILITY TO PLEADINGS AND EVIDENCE §137 port some of them.^* So the fact that instructions concern a mat- 265, 102 Tex. 80, reversing judgment (Civ. App.) 107 S. W. 952. An in- struction in an action against a water ' company for reJhisal to furnish an ap- plicant with water, that before it was required to deliver water to an appli- cant he must make necessary provi- sion for receiving it is properly refus- ed; its refusal to furnish water not having been based on any such ground, and it appearing that the ap- plicant was about to put in his side gate for diversion of the water when notified by defendant's gejieral man- ager not to put it in, because it would not furnish him water. Lowe v. Tolo County Consol. Water Co., 108 P. 29T, 157 Cal. 503. 3 5 U. S. (C. C. A. 111.) Alwart Bros. Coal Co. v. Royal Colliery Co., 211 F. 313, 127 C. C. A. 599. (C. C. A., Ohio) Rothe v. Pennsylvania Co., 195 F. 21, 114 C. C. A. 627; (C. C. A. Va.) American Loeomo.tive Co. v. Thornton, 259 P. 405. . Ala. Birmingham Fuel Co. v. Taylor, 81 So. 630, 202 Ala. 674; Bir- mingham Ey., Light & Power Co. v. Gonzalez, 61 So. 80, 183 Ala. 273, Ann. Cas. 1916A, 543; Selma Street & Suburban Ey. Co. v. Campbell, 48 Sp. 378, 158 Ala. 438. Ariz. Grant Bros. Const. Co. v. United States, 114 P. 955, 13 Ariz. 388 Ark. J. B. Bissell Dry Goods Co. V. Katter, 217 S: W. 779, 141 Ark. 467 ; Queen of Arkansas Ins. Co. v. Laster, 156 S. W. 848, 108 Ark. 261 ; A. L. Clark Lumber Co. v. Johns, 135 S. W. 892, 98 Ark. 211 ; Cajdwell V. Niehol, 134 S. W. 622, 97 Ark. 420. Cal. Eoyal Ins. Co. of Liverpool, England, v. Caledonian Ins. Co. of Edinburgh, Scotland, 187 P. 748, 182 Cal. 219; Weik v. Southern Pac. Co., 132 P. 775, 21 Cal. App. 711. Colo. Colorado Springs & I. Ry. Co. V. Allen, 108 P. 990, 48 Colo. 4. Conn. Temple v. Gilbert, 85 A. 380, 86 Conn. 335; Floral Creamery Co. .V. Dillon & Douglass, 75 A. 82, 83 Conn. 65. D. C, Capital Traction Co. v. Crump, 35 App. D. O. 169; Wallach V. MacFarland, 31 App. D. 0. 130. Fla. Atlanta & St. A. B. Ry. Co. V. Kelly, 82 So. 57, 77 Fla. 479 ; Win- field V. Truitt, 70 So. 775, 71 Fla. 38 ; German-American Lumber Co. v. Bar- rett, 68 So. 661, 66 Fla. 181. Ga. Bank of La Fayette v. Phipps, 101 S. E. 696, 24 Ga. App. 613 ; Har- rison V. Peacock, 101 S. E. 117, 149 Ga. 515; Borders v. Gay, 65 S. E. 788, 6 Ga. App. 734; Virginia Bridge & Iron Co. V. Crafts, 58 S. E. 322, 2 Ga. App. 126. Idaho. Fleenor v. Oregon Short Line R. Co., 102 P. 897, 16 Idaho, 781. 111. Buchholz V. Feustel, 179 111. App. 396 ; Springfield Consol. Ry. Co. V. .Tohnson, 134 111. App. 536. Ind. Morgan v. Wlnship (App.) 126 N. E. 37 ; Citizens' Telephone Co. V. Prickett (Sup.) 125 N. E. 193 ; City of Ne;!veastle v. Harvey, 102 N. E. 878, 54 Ind. App. 243; Snow v. In- dianapolis & E. Ry. Co., 98 N. E. 1089, 47 Ind. App. 189; Chicago & E. I. Ry. Co. V. Hendrix, 87 N. E. 663, 43 Ind. App. 411. Iowa. Gray v. Chicago, R. I^ ot P. Ey. Co., 139 N. W. 934, 160 Iowa, 1. Kan. Dodderidge' v. Bacon, 150 P. 539, 96 Kan. 150 ; Western Union Tel- egraph Co. v. Brower, 105 P. 497, 81 Kan. 109. Ky. Transylvania Oasraalty Ins. Co. V. Paritz, 213 S. W. 195, 184 Ky. 807 ; Louisville & N. R. Co. v. Onan's Adm'r, 110 S. W. 380, 33 Ky. Law Rep. 462. Md. Security Storage & Trust Co. V. Denys, 86 A. 613, 119 Md. 330; German Union Fire Ins. Co. of Bal- timore V. Cohen, 78 A. 911, 114 Md. 1'30. Mass. Griffin v. Dearlforn, 96 N. E. 681, 210 Mass. 308. Mich. Sibley v. Morse, 109 N. W. 858, 146 Mich. 463. Minn. Farrell v. G. O. Miller Co.^ 179 N. W. 566 ; Doran v. Chicago, St. P., M. & O. Ry. Co., 150 N. W. 800,. 128 Minn. 193. Miss, kneale v. Lopez & Dukate, 46 So. 715, 93 Miss. 201; Mobile, J. 3 8 S. P. Matthews & Co. v. Sea- board Air Line Ry., 87 S. E. 1097, 17 Ga. App. 664. §137 INSTRUCTIONS TO JURIES 268 ter in relation to which a dispute has arisen between counsel does not take them out of the scope of the above rule.** The court, however, may submit a view of the evidence .not presented by the parties,*" and it is not improper to instruct the & K. C. K. Co. V. Jackson, 46 So. 142, 92 Miss. 517. Mo. Smitli V. Sickinger (App.) 221 5. W. 779; Lawler v. Mon^omery (App.) 217 S. W. 856; Booth v. Don- gan (App.) 217 S. W. 326; Eearden V. St. Ix)uis & S. F. Ky. Co., 114 S. W. 961, 215 Mo. 105. Mont. McKlm v. Beiseker, 185 P. 153, 56 Mont. 830; Heitman v. Chi- cago, M. & St. P. Ey. Co., 123 P. 401, 45 Mont. 406 ; Lindsay v. Kroeger, 95 P. 839, 37 Mont. 231. Neb. Bethel v. Pawnee County, 145 N. W. 363, 95 Neb. 203 ; Odell v. Story, 118 X. W. 1103, 81 Neb. 442; Carlle v. Bentley, 116 N. W. 772, 81 Neb. 715. N. J. Bodine v. Berg, 82 A. 901, 82 N. J. Law, 662, 40 L. R. A. (N. S.) 65, Ann. Cas. 1913D, 721 ; Merklinger V. Lambert, 72 A. 119, 76 N. J. Law, 806. N. M. Jackson v. Brower, 167 P. 6, 22 N. M. 615; Cowles v. Hager- man, 110 P. 843, 15 N. M. 600. N. Y. Pulcino v. Long Island R. Co., 87 N. E. 1126, 194 N. Y. 526, af- firming judgment 109 N. Y. S. 1076, 125 App. Div. 629; "Sigel V. American Seating Co., 146 N. Y. S. 350, 161 App. Div. 54; Mitchell v. T. A. Gillespie Co., 137 N. Y. S. 550, 152 App. Div. 536. N. C. Buchanan v. Cranberry Fur- nace Co., 101 S. B. 518, 178 N. C. 643 ; Klvett V. "Western Union Telegraph Co., 72 S. E. 388, 156 N. C. 296; Revis V. City of Raleigh, 63. S. E. 1049, 150 N. C. 348. Okl. St. Louis & S. F. Ry. Co. v. Henry, 149 P. 132, 46 Okl. 526 ; Ken- nedy V. Goodman, 135 P. 936, 39 Okl. 470. Or. Haines v. First Nat. Bank, 172 P. 505, 89 Or. 42; Dunn v. Orchard Land & Timber Co., 136 P. 872, 68 Or. 97. Pa. American Surety Co. of New York V. Vandegrift Const. Co., 107 A. 733, 264 Pa. 193 ; Littieri v. Freda, 88 A. 82, 241 Pa. 21. B. I. King V. Providence Gas Co. 90 A. 4; Champlin v. Paw ea tuck Val- ley St. Ry. Co., 82 A. 481, 33 R. 1. 572.^ S. C. Kramer v. Greenville, S. &. A. Ry. Co., 77 S. B. 738, 94 S. C. 59; Cheek v. Seaboard Air Line Ry., 62 S. E. 402, 81 S. C. 348. S. D. Braun v. Thuet, 174 N. W. 807, 42 S. D. 491 ; Grant v. Whorton, 134 N. W. 803, 28 S. D. 599. Tex. Missouri Iron & Metal Co. v. Cartwright (Civ. App.) 207 S. W. 397 ; Marks v. Jones (Civ. App.) 154 S. W. 618; Missouri, K. & T. Ry. Co. of Tex- as V. Hagler (Civ. App.) 112 S. W. 783. TJtab. Urich v. Utah Apex Miiflng Co., 169 P. 268, 51 Utah, 206 ; Furko- vich V. Bingham Coal & Lumber Co., 143 P. 121, 45 Utah, 89, L. R. A. 1915B, 426 ; Casady v. Casady, 88 P. 32, 31 Utah, 394. Vt. Wiley v. Rutland R. Co., 86 A. 808, 86 Vt. 504 ; Jenness v. Simpson, 78 A. 886, 84 Vt. 127. Va. Sands & Co. v. Norvell, 101 S. E. 569, 126 Va. 884; Virginian Ry. Co. V. Bell, 79 S^. B. 396, 115 Va. 429, Ann. Cas. 1915A, 804; Norfolk & W. Ry. Co. V. Carr, 56 S. B. 276, 106 Va. 508. Wash. Suell v. Jones, 96 P. 4, 49 Wash. 582; Harris v. Washington Portland Cement Co., 95 P. 84, 49 Wash. 345. W. Va. Williams v. Schehl, 100 S. E. 280, 84 W. Va. 499 ; Sims v. Car- penter, Frazler & Co., 69 S. E. 794, 68 W. Va. 223. Wis. Matthews v. Town of Sigel, 139 N. W. 721, 152 Wis. 123; Smith v. Goldberg, 121 N. W. 178, 189 Wis. 423; Kohl v. Bradley, Clark & Co., 110 N. W. 265, 130 Wis. 301. 3 8 Carter v. Sioux City Service Co., 141 N. W. 26, 160 Iowa, 78. i" Dusopole V. Manos, 80 N. E. 481, 194 Mass. 355; People v. Wallin, 55 Mich. 497, 22 N. W. 15. 269 APPLICABILITY TO PLEADINGS AND EVIDENCE § 138 jury concerning mortality tables, although not introduced in evi- dence; the court being permitted to take judicial notice of them." § 138. Rule in criminal cases In criminal cases, in some jurisdictions, no instruction should ever be given, unless based upon a hypothesis supported by some evidence,*^ and it is generally held that instructions in such cases which have no support in the evidence are erroneous, and prop- erly refused, as calculated to mislead and confuse the jury.** In- 41 Warders v. Union Pac. R. Co., ' 181 P. 604, 105 Kan. 4. 42 Cook V. Commonwealth, 8 S. W. 872, 10 Ky. Law Kep. 222. *3TI. S. (Sup.) Bird v. United States, 23 S. Ct. 42, 187 U. S.'llS, 47 L. Ed. 100; (C. C. A. Cal.) Brown v. U. S., 260 F. 752, 171 C. C. A. 490; (C. C. A. Ind.) Brown v. United States, 142 F. 1, 73 O. O. A. 187; (C. C. A. Okl.) Chambliss v. United States, 218 F. 154, 132 C. C. A. 112; (C. C. A. Wash.) Taylor v. United States, 193 F. 968, 113 C. C. A. 543. Ala. Smith v. State, 69 So. 402, 13 Ala. App. 399, certiorari denied Ex parte Smith, 69 So. 1020, 193 Ala. 680 ; Williams v. State, 69 So. 376, 13 Ala. App. 133; Davis v. State, 66 So. 67, 188 Ala. 59; Hudson v. State, 65 So. 732, 11 Ala. App. 116; Hooten v. State, 64 So. 200, 9 Ala. App. 9 ; Wat- son V. State, 62 So. 997, 8 Ala. App. 414 ; McClain v. State, 62 So. 241, 182 Ala. 67; Granberry v. State, 62 So. 52, 182 Ala. 4 ; Malehow v. State, 59 So. 342, 5 Ala. App. 99; Jackson v. State, 57 So. 594, 5 Ala. App. 306; Parker v. State, 51 So. 260, 165 Ala. 1; Phillips V. State, 50 So. 326, 162 Ala. 53 ; Guarreno v. State, 48 So. 65, 157 Ala. 17; Strickland v. State, 44 So. 90, 151 Ala. 31; Barber v. State, 43 So. 808, 151 Ala. 56; Thomas v. State, 43 So. 371, 150 Ala. 31 ; Plant V. State, 37 So. 159, 140 Ala. 52 ; Wild- man V. State, 35 So. 995, 139 Ala. 125; SherriU v. State, 35 So. 129, 138 Ala. 3 ; Maddox v. State, 26 So. 305, 122 Ala. 110; Thompson v. State, 26 So. 141, 122 Ala. 12 ; Handy v. State, 25 So. 1023, 121 Ala. 13; Taylor v. State, 25 So. 701, 121 Ala. 39; Crane v. State, 111 Ala. 45, 20 So. 590 ; Taylor ■V. State, 48 Ala. 157. Ark. Diggs V. State, 190 S. W. 448, 126 Ark. 455; BrowB v. State, 138 S. W. 633, 99 Ark. 648; Bell v. State, 104 S. W. 1108, 84 Ark. 128; Mitchell V. State, 101 S. W. 763, 82 Ark. 324. Cal. People V. Northcott (App.) 189 P. 704; People v. Williams, 156 P. 882, 29 Cal. App. 552; People v. Lim Foon, 155 P. 477, 29 Cal. App. 270; ~ People v. Whitlow, 139 P. 826, 24 Cal. App. 1; People v. Corey, 97 P. 907, 8 Cal. App. 720; People v. Trebilcox, 86 P. 684, 149 Cal. 307; People V. Stevens, 75 P. 62, 141 Cal. 488; People v. Morine, 72 P. 166, 138 Cal. 626; People v. Ross, 66 P. 229, 134 Cal. 256 ; People v. Matthews, 58 P. 371, 126 Cal. xvii ; People v. Hur- ley, 57 Cal. 145; People v. Juarez, 28 Cal. 380; People v. Roberts, 6 Cal. 214. Colo. Almond v. People, 135 P. 783, 55 Colo. 425; Reagan v. People, 112 P. 785, 49 Colo. 316; Van Wyk V. People, 99 P. 1009, 45 Colo. 1; Mow V. People, 72 P. 1069, 31 Colo. 351. Conn. State V. Rackowski, 86 A. 606, 86 Conn. 677, 45 L. R. A. (N. S.) 580, Ann. Cas. 1914B, 410. D. C. Hamilton v. United States, 26 App. D. C. 382 ; Norman v. United States, 20 App. D. C. 494. Fla. Long v. State, 83 So. 293, 78 Fla. 464; Milllgan v. State, 78 So. 535, 75 Fla. 815: Settles v. State, 78 So. 287, 75 Fla. 296; Wolf v. State, 73 So. 740, 72 Fla. 572; Davis v. State, 63 So. 847, 66 Fla. 349 ; Carl- ton V. State, 58 So. 486, 63 Fla. 1; Stokes V. State, 44 So. 759, 54 Fla. 109; Williams v. State, 43 So. 431, 53 Fla. 84; Hisler v. State, 42 So. 692, 52 Fla. 30 ; Melbourne v. State, 40 So. 189, 51 Fla. 69; Eatman v. State, 37 So. 576, 48 Fla. 21; Davis v. State, 35 So. 76, 46 Fla. 137 ; Kelly v. §138 INSTRUCTIONS TO JURIES 27a structions in, a criminal case are erroneous, and properly refused. State, 33 So. 235, 44 Fla. 441 ; Green V. State, 30 So. 656, 43 Fla. 556; Rich- ard V. State, 29 So. 413, 42 Fla. 328; Long V. State, 28 So. T75, 42 Fla. 509 ; Wallace v. State, 26 So. 713, 41 Fla. 547; Copeland v. State, 26 So. 319, 41 Fla. 320; Doyle v. State, 22 So. 272, 39 Fla. 155, 63 Am. St. Eep. 159. Ga. Manuel v. State, 104 S. E. 447, 150 Ga. 611; Shannon v. State, 93 S. E. 86, 147 Ga. 172 ; Braxley v. State, 86 S. E. 425, 17 Ga. App. 196 ; Morgan V. State, 85 S. E. 254, 16 Ga. App. 267 ; Eoberts v. State, 84 S. E. 122, 143 Ga. 71; Greer v. State, 82 S. E. 484, 142 Ga. 66 ; Wilson v. State, 70 S. E. 193, 8 Ga. App. 816 ; Kenfroe v. State, 70 S. E. 70, 8 Ga. App. 676 ; Hill v. State, 66 S. E. 802, 7 Ga. App. 336; Loeb v. State, 64 S. E. 338, 6 Ga. App. 23; Branch v. State, 63 S. E. 714, 5 Ga. App. 651; Topp^v. State, 62 S. E. 1036, 131 Ga. 593 ; Lyles v. State, 60 S. E. 578, 130 Ga. 294; Toomer v. State, 60 S. E. 198, 130 Ga. 63 ; Baker V. State, 58 S. B. 1114, 2 Ga. App. 662; Harwell v. State, 58 S. E. 1111, 2 Ga. App. 613; Moody v. State, 58 S. E. 262, 1 Ga. App. 772; Books v. State, 46 S. E. 631, 119 Ga. 431 ; Echols v. State, 46 S. E. 409, 119 Ga. 307 ; Jor- dan V. State, 43 S. E. 747, 117 Ga. 405 ; Moore v. State, 40 S. B. 295, 114 Ga. 256; Gaines v. State, 26 S. E. 760, 99 Ga. 703; Minor v. State, 56 Ga. 630. Idaho. People V. Ah Too, 2 Idaho, 47, 3 P. 10. 111. People V. Davis, 110 N. E. 9, 269 111. 256 ; People v. Fryer, 107 N. E. 134, 266 111. 216 ; People v. Rischo, 105 N. B. 8, 262 111. 596; People v. Gardt, 101 N. E. 687, 258 111. 468, af- firming judgment 175 111. App. 80; People V. Johnson, 86 N. B. 676, 237 111. 237 ; Roberts v. People, 80 N. E. 776, 226 111. 296 ; Lyman v. State, 64 N. E. 974, 198 111. 544 ; Schintz v. Peo- ple, 52 N. E. 903, 178 111. 320 ; Birr v. People, 113 111. 645 ; City of Centralia V. Knash, 183 111. App. 588 ; Houtz v. People, 123 111. App. 445. Ind. Malone v. State, 96 N. B. 1, 176 Ind. 338; Rigsby v. State, 91 N. B. 925, 174 Ind. 284; Braxton v. State, 61 N. B. 195, 157 Ind. 213 ; Mil- ler V. State, 43 N. E. 440, 144 Ind. 401 ; Reed v. State, 40 N. E. 525, 141 Ind. 116; Plummer v. State, 34 N. E. 968, 135 Ind. 308 ; Beaty v. State, 82' Ind. 228 ; Clem v. State, 31 Ind. 480. Ind. T. Williams v. United States,. 88 S. W. 334, 6 Ind. T. 1. Iowa. State v. Harrison, 149 N. ■ W. 452, 167 Iowa, 334 ; State v. Mul- len, 131 N. W. 679, 151 Iowa, 392,. Ann. Gas. 1913A, 399; State v. Den- hardt, 105 N. W. 385, 129 Iowa, 135 ^ State V. Swallum, 82 N. W. 439, 111 Iowa, 37; State v. Fraunberg, 40 Iowa, 555. Kan. State V. Gaunt, 157 P. 447, 98 Kan. 186 ; State v. Van Sickle, 154 P. 1015, 97 Kan. 362; State v. Alte- mus, 92 P. 594, 76 Kan. 718 ; State v. GofC, 61 P. 680, 10 Kan, App. 286, judgment reversed 61 P. 683, 62 Kan. 104. Ky. King v. Commonwealth, 220 S. W. 755, 187 Ky. 782; Wattles v. Commonwealth, 215 S. W. 291, 185. Ky. 486 ; Day v. Commonwealth, 191 S. W. 105, 173 Ky. 269; Anderson v.. Commonwealth, 137 S. W. 1063, 144 Ky. 215 ; Middleton v. Commonwealth, 124 S. W. 355, 136 Ky. 354; Steely v. Commonwealth, 112 S. W. 655, 129- Ky. 524, 33 Ky. Law Eep. 1032 ; Com- monwealth V. Thomas, 104 S. W. 326, 31 Ky. Law Rep. 899; Williamson v. Commonwealth, 101 S. W. 370, 31 Ky. Law Eep. 61 ; Quinn v. Common- wealth, 63 S. W. 792, 23 Ky. Law Rep. 1302 ; Commonwealth v. Rudert,. 60 S. W. 489, 109 Ky. 653, 22 Ky. Law Eep. 1308 ; Mahan v. Commonwealth, 56 S. W. 529, 21 Ky. Law Rep. 1807; Costigan v. Commonwealth, 12 S. W. 629, 11 Ky. Law Rep. 617; MeCler- nand v. Commonwealth, 12 S. W. 148, 11 Ky. Law Rep. 301 ; Eitte v. Com- monwealth, 18 B. Mon. 85. La. State V. McGuire, 83 So. 374,. 146 La. 49; State v. Folden, 66 So. 223, 135 La. 791; State v. Robertson,. 63 So. 363, 133 La. 806 ; State v. Ailes,. 63 So. 172, 133 La. 563; State v. Langford, 62 So. 597, 133 La. 120 ; State v. Howard, 53 So. 677, 127 La. 435; State v. Kemp, 45 So. 283, 120 La. 378; State v. Anderson, 45 So. 271 APPLICABILITY TO PLEADINGS AND EVIDENCE %m which assume facts in opposition to the evidence in the case,* 267, 120 La. 331 ; State v. Pellerin, 43 So. 159, 118 La. 547 ; State v. Guldor, 37 So. 622, 113 La. 727; State v. Mat- thews, 36 So. 48, 111 La. 962 ; State v. liabuzan, 37 La. Ann. 489. Mass. Commonwealth v. Pratt, 95 N. E. 105, 208 Mass. 553. Mich. People V. Van Alstyne, 122 N.-W. 193, 157 Mich. 366; People v. Hilliard, 77 N. W. 306, 119 Mich. 24; Brownell v. People, 38 Mich. 732; People V. Jones, 24. Mich. 215. Minn. State v. Meyers, 155 N. W. 766, 132 Minn. 4 ; State v. Whitman, 114 N. W. 363, 103 Minn. 92, 14 Ann. Cas. 309. Miss. Canterberry v. State, 43 So. 678, 90 Miss. 279 ; Saffold v. State, 26 So. 945 ; Wheeler v. State, 24 So. 310, 76 Miss. 265; Cothran v. State, 39 Miss. 541; Oliver v. State, 39 Miss. 526. Mo. Interstate Coal Co. v. Gordon (App.) 216 S. W. 783 ; State v. Under- wood, 173 S. W. 1059, 263 Mo. 677; State V. Westbrook, 171 S. W. 616, 186 Mo. App. 421; State v. Sykes, 154 S. W. 1130, 248 Mo. 708 ; State v. Swain, 144 S. W. 427, 239 Mo. 723 ; State v. Nord, 132 S. W. 239, 230 Mo. 655 ; State V. Green, 129 S. W. 700, 229 Mo. 642; State V. Rollins, 126 S. W. 478, 226 Mo. 524 ; State v. Clancy, 125 S. W. 458, 225 Mo. 654 ; State v. Edwards, 102 S. W. 520, 203 Mo. 528 ; State v. King, 102 S. W. 515, 203 Mo. 560; State V. Paulsgrove, 101 S. W. 27, 203 Mo. 193; State v. Tyree, 100 S. W. 645, 201 Mo. 574 ; State v. Zorn, 100 S. W. 591, 202 Mo. 12 ; State v. Oakes, 100 S. W. 434, 202 Mo. 86, 119 Am. St. Kep. 792; State v. Miller, 90 S. W. 767, 191 Mo. 587 ; State v. Brown, 181 Mo. 192, 79 S. W. 1111 ; State v. Rose, 76 S. W. 1003, 178 Mo. 25 ; State V. Caudle, 74 S. W. 6^1, 174 Mo. 388; State V. Gartrell, 171 Mo. 489, 71 S. W. 1045 ; State v. St. John, 68 S. W. S74, 94 Mo. App. 229 ; State v. North- way, 65 S. W. 331, 164 Mo. 513 ; State V. Weaver, 165 Mo. 1, 65 S. W. 308, 88 Am. St. Rep. 406; State v. Obu- chon, 60 S. W. 85, 159 Mo. 256 ; State v. Hudspeth, 51 S. W. 483, 150 Mo. 12 ; State v. Lewis, 118 Mo. 79, 23 S. W. 1082 ; State v. Allen, 116 Mo. 548, 22 S. W. 792; State v. Johnson, 111 Mo. 578, 20 S. W. 302 ; State v. Tur- , lington, 102 Mo. 642, 15 S. vv. 141; State V. Riley, 100 Mo. 493, 13 S. W. 1063 ; State v. Herrell, 97 Mo. 105, 10 S. W. 387, 10 Am. St. Rep. 289; State v. Tice, 90 Mo. 112, 2 S. W. 269 ; State v. Brady, 87 Mo. 142 ; State v. Little, 67 Mo. 624; State v. Harris, 59 Mo. 550; State v. Sayers, 58 Mo. 585; State V. Sturges, 48 Mo. App. 263. Momt. State v. Sheldon, 169 P. 37, 54 Mont. 185. Neb. Schultz v. State, 130 N. W. 972, 89 Neb. 34, 33 L. R. A. (N. S.) 403, Ann. Cas. 1912C, 495; Callahan V. State, 119 N. W. 467, 83 Neb. 246 ; Connelly v. State, 104 N. W. 754, 74 Neb. 340; Lamb v. State, 95 N. W. 1050, 69 Neb. 212; Rhea v. State, 88 N. W. 789, 63 Neb. 461 ; Spaulding v. State, 85 N. W. 80, 61 Neb. 289; Thompson v. State, 85 N. W. 62, 61 Neb. 210, 87 Am. St. Rep. 453 ; Strong v. State, 84 N. W. 410, 61 Neb. 35; Chezem v. State, 76 N. W. 1056, 56 Neb. 496; Kelly v. State, 71 N. W. 299, 51 Neb. 572; Morearty v. State, 46 Neb. 652, 65 N. W. 784; Walrath v. State, 8 Neb. 80. N. J. State V. Lovell, 96 A. 38, 88 N. J. Law, 353, reversing judgment 92 A. 376, 86 N. J. Law, 509; State v. Diamond, 86 A. 57, 84 N. J. Law, 17. N. M. Stata V. Moss, 172 P. 199, 24 N. M. 59. N. Y, People v. Tirnauer, 136 N. 4* Ala. Ward v. State, 72 So. 754, 15 Ala. App. 174; Liner v. State, 27 So. 438, 124 Ala. 1. Cal, People v. Clark, 79 P. 434, 145 Cal. 727; People v. Matthai, 67 P. 694, 135 Cal. 442; People v. Lem Deo, 64 P. 265, 132 Cal. 199. Mass. Commonwealth v. Reid, 56 N. E. 617, 175 Mass. 325. Miss. Cook V. State, 38 So. 110, 85 Miss. 738. K. I. State V. Casasanta, 73 A. 312, 29 R. I. 587. Tex. Wood V. State, 182 S. W. 1122, 78 Tex. Cr. R. 654. Vtab. State V. Marks, 51 P. 1089, 16 Utah, 204. 138 INSTRUCTIONS TO JURIES 272 and although the court, in charging, presents facts hypothetically T. S. 833, 77 Misc. Rep. 387; People v. DeGrafC, 6 N. Y. St. Rep. 412. N. C. State v. Hinson, 64 S. E. 124, 150 N. C. 827; State v. Carra- wan, 54 S. E. 1002, 142 N. C. 575; State V. Hicks, 41 S. E. 803, 130 JS. C. 705 ; State v. Hicks, 34 S. E. 247, 125 N. 0. 636; State v. Sizemore, 52 N. C. 206. Ohio. State V. Linder, 81 N. E. 753, 76 Ohio St. 463. Okl. Lamb v. State, 185 P. 1101, 16 Okl. Or. 724; Yarbrough v. State, 162 P. 678, 13 Okl. Or. 140 ; Perryman V. State, 159 P. 937, 12 Okl. Cr. 500; Duncan v. State, 144 P. 629, 11 Okl. Cr. 217 ; Ryan v. State, 129 P. 685, 8 Okl. Cr. 623; Mulkey v. State, 113 P. 532, 5 Okl. Cr. 75; Driggers v. United States, 95 P. 612, 21 Okl. 60, 1 Okl. Cr. 167, 129 Am. St. Rep. 823, 17 Ann. Cas. 66, reversing judgment 104 S. W. 1166, 7 Ind. T: 752 ; Robinson v. Territory, 85 P. 451, 16 Okl. 241, reversed 148 F. 830, 78 C. C. A. 520; New v. Ter- ritory, 70 P. 198, 12 Okl. 172, dismiss- ed 25 S-. Ct. 68, 195 U. S. 252, 49 L. Ed. 182. Op. State v. Erickson, 110 P. 785, 57 Or. 262, rehearing denied 111 P. 17, 57 Or. 262 ; State v. Megorden, 88 P. 306, 49 Or. 259, 14 Ann. Cas. 130; State v. Miller, 74 P. 658, 43 Or. 325 ; State V. McCann, 72 P. 137, 43 Or. 155. Pa, Commonwealth v. Calhoun, 86 A. 472, 238 Pa. 474; Commonwealth V. Palmer, 71 A. 100, 222 Pa. 299, 19 L. R. A. (N. S.) 483, i28 Am. St. Rep. 809; Commonwealth v. Danz, 60 A. 1070, 211 Pa. 507. S. C. State V. Waldrop, 52 S. E. 793, 73 S. C. 60; State v. Hutto, 45 S. E. 13, 66 S. C. 449. S. D. State V. James, 164 N. W. 91, 39 S. D. 263; State v. Donovan, 132 N. W. 698. 28 S. D. 136. 36 L. R. A. (N. S.) 167 ; State v. Landers, 114 N. W. 717, 21 S. D. 606. Tenn. Cooper v. State, 138 S. W. 826, 123 Tenn. 37 ; Croft v. State, « Humph. 317. Tex. Albrecht v. State, 215 S. W. 327, 85 Tex. Cr. R. 519; Flores v. State, 198 S. W. 575, 82 Tex. Cr. R. 107; Bega v. State, 197 S. W. 1109, 81 Tex. Cr. R. 635; Kelley v. State, 190 S. W. 173, 80 Tex. Cr. R. 249; Duhig V. State, 180 S. W. 252, 78 Tex. Cr. R. 125; Howard v. State, 178 S. W. 506, 77 Tex. Cr. R. 185; Hart v. State, 175 S. W. 436, 76 Tex. Cr. R. 339 ; Raleigh v. State, 168 S. W. 1050, 74 Tex. Cr. R. 484 ; Coulter v. State, 162 S. W. 885, 72 Tex. Cr. R. 602; Brice v. State, 162 S. W. 874, 72 Tex. Cr. R. 219; Elmore v. State, 162 S. W. 517, 72 Tex. Cr. R. 226; Cowley v. State, 161 S. W. 471, 72 Tex. Cr. R. 173 ; Grimes v. State, 160 S. W. 689, 71 Tex. Cr. R. 614; Templeton v. State, 158 S. W. 302, 71 Tex. Cr. R. 307; Corley v. State, 155 S. W. 227, 69 Tex. Cr. R. 626 ; Ellis v. State, 154 S. W. 1010, 69 Tex. Or. R. 468; Stewart v. State, 153 S. W. 1151, 69 Tex. Cr. R. 384; Polk v. State, 152 S. W. 907, 69 Tex. Cr. B. 53; Bum- garner V. State, 142 S. W. 4, 64 Tex. Cr. R. 165 ; Diggs v. State, 141 S. W. 100, 64 Tex. Cr. R. 122; Alexander V. State, 138 S. W. 721, 63 Tex. Cr. R. 102; Taylor v. State, 188 S. W. 615, 62 Tex. Cr. R. 611; Jones v State, 132 S. W. 476, 60 Tex. Cr. R. 426; Johnson v. State, 128 S. W. 614, 59 Tex. Cr. R. 263 ; Woodland v. State, 123 S, W. 141, 57 Tex. Cr. R. 352; Henderson v. State, 117 S. W. 825, 55 Tex. Or. R. 640; Knight v. State, 116 S. W. 56, 55 Tex. Cr. R. 243 ; Blocker v. State, 114 S. W. 814, 55 Tex. Cr. K. 30, 131 Am. St. Rep. 772; Moore v. State, 114 S. W. 807, 55 Tex. Cr. R. 3; Brittain v. State, 105 S. W. 817, 52 Tex. Cr. R. 169; Adams v. State (Cr. App.) 105 S. W. 497 ; Trinkle v. State, 105 S. W. 201, 52 Tex. Cr. R. 42 ; Slaughter v. State, 105 S. W. 198, 199 ; Smith v. State, 104 S. W. 899, 51 Tex. Cr. R. 645 ; Rice V. State,, 103 S. W. 1156, 51 Tex. Cr. R. 255 ; Jones v. State (Cr. R.) 101 S. W. 1012; Laws v. State (Cr. App.) 101 S. W. 987; Cross v. State (Cr. App.) 101 S. W. 213; Burnett v. State, 100 S. W. 381, 51 Tex. Cr. R. 20; Luck V. State (Cr. App.) 97 S. W. 1049 ; Arthur v. State, 80 S. W. 1017, 46 Tex. Cr. R. 477; Hjeronymus v. State, 79 S. W. 313, 46 Tex. Cr. R. 157 ; Reyna v. State (Cr. App.) 75 S. W. 25; Burns v. State (Cr. App.) 71 S. W. 965, 62 L. R. A. 427 ; Terry v. 273 APPLICABILITY TO PLEADINGS AND EVIDENCE § 138 and does not assume their existence, yet unless there is evidence State, 66 S. W. 451, 43 Tex. Cr. R. 353 ; Taj'lor v. State (Cr. App.) 63 S. W. 330.; Martinez v. State (Cr. App.) 57 S. W. 838; Bell v. State (Cr. R.) 56 S. W. 913 ; EUers v. State (Cr. R.) 55 S. W. 813; Wilson v. State (Cr. R.) 55 S. W. 489; Nite v. State, 54 S. W. 763, 41 Tex. Cr.'R. 340; Prewett V. State, 53 S. W. 879, 41 Tex. Cr. R. 262 ; Griffin v. State (Cr. App.) 53 S. W. 848; Johnson v. State (Cr. App.) 53 S. W. 105; Bruce v. State, 51 S. W. 954, 41 Tex. Cr. R. 27 ; Jackson v. State (Cr. App.) 51 S. W. 389; Ran- som V. State (Cr. App.) 49 S. W. 582; Paderes v. State (Cr. App.) 45 S. W. 914 ; Unsell v. State (Cr. App.) 45 S. W. 902; Myers v. State, 39 S. W. 938, 37 Tex. Cr. R. 331 ; Tittle v. State, 35 Tex. Cr. R. 96, 31 S. W. 677 ; Bur- gess V. State, 33 Tex. Cr. R. 9, 24 S. W. 286; Chamberlain v. State, 25 Tex. App. 398, 8 S. W. 474 ; Hartwell V. State, 23 Tex. App. 88, 3 S. W. 715 ; Burney v. State, 21 Tex. App. 565, 1 S. W. 458; Boddy v. State, 14 Tex. App. 528; Behrens v. State, 14 Tex, App. 121; Johnson v. State, 13 Tex. App. 378; Pugh v. State, 2 Tex. App. 539; Haynes v. State, 40 Tex. 52; Bergstrom v. State, 36 Tex. 336. Utah. State v. Kakarikos, 146 P. 750, 45 Utah, 470; State v. Gordon, 76 P. 882, 28 Utah, 15 ; State v. Evans, 73 P. 1047, 27 Utah, 12. Va. Johnson v. Commonwealth, 46 S. E. 789, 102 Va. 927; Reed v. Com- monwealth, 98 Va.817, 86 S. B. 399: Hall V. Commonwealth, 89 Va. 171, 15 S. E. 517. Wash. Miller v. Territory, 3 Wash. T. 554, 19 P. 50; State v. Harsted, 119 P. 24, 66 Wash. 158; State v. Johnson, 91 P. 949, 47 Wash. 227. W. Va. State v. liutz, 101 S. E. 434, 85 W. Va. 330 ; State v. Donahue, 90 S. E. 834, 79 W. Va. 260 ; State v. Sheppard, 39 S. E. 676, 49 W. Va. 582; State V. Dickey, 46 W. Va. 319, 33 S. E. 231 ; State v. Cross, 42 W. Va. 253, 24 S. E. 996; State v. Zeigler, 40 W. Va. 593, 21 S. E. 763 ; State v. Belk- nap, 39 W. Va. 427, 19 S. E. 507; State V. Poindexter, 23 W. Va. 805; State V. Abbott, 8 W. Va. 741. Wis. Weisenbach v. State, 119 N. W. 843, 138 Wis. 152. Inst. TO Juries— "18 Instructions held objectionable under rule. In a prosecution against defendant for feloniously assaulting B., who was attempting to arrest him, where the prosecution attempted to show B.'s authority to make the ar- rest on the ground that defendant had cut a third person, but there was no evidence tending to show that he had committed such crime on the third person, or on any other party, or any ground for the slightest su,spicion against him, a charge that, if B. had reason to believe that defendant had committed a felony, he had a right to arrest him, was erroneous because not applicable to the case. Spradley V. State, 31 So. 534, 80 Miss. 82. In a criminal prosecution, where the only evidence of defendant's action, when arrested, was the testimony of the sherifC, who stated that when he went to arrest defendant some days after the crime, defendant had a gun in his hand, and on being told that he was wanted said that the first man who came near he would kill, and that when the sheriff got hold of the gun, and told defendant to consider him- self under arrest, defendant jerked the gun away, the court properly re- fused to instruct that in considering the weight to be given to this evidence the jury should take into considera- tion whether or not defendant had been drinking just prior to the arrest, his intelligence, his mental capacity, and the manner of making the arrest, the feeling existing between the per- sons making the arrest, and all sur- rounding circumstances. State v. Steidley, 113 N. W. 333, 135 Iowa, 512. A charge that if there had been trouble between defendant and de- ceased, and they agreed to face each other, and each armed himself with a pistol, and they did so face each other and, in the meeting, defendant killed deceased, defendant was guilty of murder, was erroneous, where there was no evidence that the parties had agreed to such a meeting, and the meeting had was for the purpose of adjusting a misunderstanding between the parties, and of removing, if pos- sible, all stain from the character of a certain girl. Rogers v. State, 34 So. § 138 INSTRUCTIONS TO JURIES 274 tending to establish the circumstances recited as possible facts the charge is erroneous.*® 320, 82 Miss. 479. Where the issues of self-defense, accidental shooting, and death resulting from the Improper treatment of the wound are submitted to the jury on a trial for homidde, it was prejudicial error to instruct that where a person, inflicting an injury which makes it necessary to call aid to preserve life, willfully fails to call such aid, he is equally guilty as if the injury were one which would inevit- ably lead to death, without evidence that accused willfully neglected de- ceased. Ware v. State, 55 S. W. 342, 41 Tex. Or. R. 415. In a murder case, where accused knew the officers pursu- ing him, one. of whom he killed, and fired the first shots, charges that, if an officer is acting under a warrant, he must inform the person sought to be arrested before attempting such ar- rest, that he acts under the authority of the warrant, and must also show the warrant, if required, and that the law provides that if, after notice of intention to arrest the person sought to be arrested, he either flees or forc- ibly resists, the officer may use all necessary means to effect the arrest, were properly refused as inapplicable. Hunter v. State, 107 P. 444, 3 Okl. Cr. 533. Where, on the trial of a husband for neglecting to support his wife, the evidence showed that accused knew that his wife took but a small sum of money when she went to her sister's to live, and that the sum was entirely inadequate to provide for her wants in her feeble condition, and that she had applied for aid to a town as a pauper, and that when he was re- quested to provide for her he refused to do so, the refusal to charge that, if accused was not informed that his wife's means were exhausted, his re- fusal to support her would not be an unreasonable refusal, and he should be acquitted, was proper. Spencer v. State, 112 N. W. 462, 132 Wis. 509, 122 Am. St. Rep. 989, 13 Ann. Cas. 969. Where, on trial of defendant for in- cest with his stepdaughter, there was no evidence that her mother had a former husband, unless it be inferred from the fact that she had two chil- dren born before her marriage to de- fendant, it was not error to refuse to instruct the jury that defendant could not be convicted without proof of the death of such former husband, or that a divorce had been secured from him, since the evidence did not present any such issue. Stanford v. State, 60 S. W. 253, 42 Tex. Cr. R. 343. Where, in a prosecution for violating the local option law, the state did not claim that defendant was the agent of the purchaser of the liquor, and not of the seller, and defendant claimed that he did not sell the liquor to prosecu- tor, but that the latter stole It from him, it was not error to refuse a charge presenting the theory that de- fendant was the agent of the pur- chaser. Carter v. State (Tex. Cr. App.) 89 S. W. 835. Where, on a prosecution for the abatement of a public nuisance consisting of a mill- dam, there was no evidence tending to show that the health of any one travel- ing on the public highway was affect- ed by the conditions alleged to have been caused by the existence of the dam, an instruction that, if the dam produced such conditions as caused people passing on the highway to be- come affected with certain diseases, the verdict should be for the common- wealth, was erroneous. Jeremy Imp. Co. v. Commonwealth, 56 S. B. 224, 106 Va. 482. Where a witness had testified that he had had intercourse with the prosecutrix several times prior and but a few months before her alleged seduction by defendant, and there was no evidence that she had reformed, an instruction that if pros- ecutrix had Intercourse with the wit- ness some months prior to her engage- ment, if any, with the defendant, but had reformed and was leading an ab- solutely virtuous life at the time de- fendant became engaged to her, and she had sexual intercourse with him solely because of his promise of mar- riage, defendant was guilty, was er- roneous, as inapplicable to the case. Kerr v. United States, 104 S. W. 809, 7 Ind. T. 486. *5 People V. Bird, 60 Cal. 7 ; Breese V. State, 12 Ohio St. 146, 80 Am. Dec. 340. -^5 APPLICABILITY TO PLEADINGS AND EVIDENCE § 138 The above rule has been. applied to instrufctions on the issue of former jeopardy," on the issue of insanity or intoxication as a defense in a criminal prosecution,*' on the . sufficiency and effect of the possession of stolen property," on the right of the jury to consider the commission of another offense than that charged,** on the effect of the making of contradictory statements as impeach- ing dying declarations,^" and on the duty of the jury not to allow themselves to be swayed by popular feeling.^i In a criminal prosecution, .an instruction should not only em- body principles of law applicable to the evidence, but it should apply these principles thereto in a concrete form, .by appropriate words requiring the jury to find the necessary facts upon which it purports to be.based,^* and an instruction, although correct as *eHartgraves v. State, 114 P. 343, 5 Okl. Cr. 266, 33 L. R. A. (N. S.) 568, Ann. Cas. 1912D, 180. *7 Ala. Goodman v. State, 72 So. 687, 15 Ala. App. 161. Cal. People v. Goodrum, 160 P. 690, 31 Cal. App. 430. Idaho. State v. Gruber, 115 P. 1, 19 Idaho, 692. Ky. Hobbs v. Commonwealth, 162 S. W. 104, 156 Ky. 847; Wilkerson v. Commonwealth, 88 Ky. 29, 9 S. W. 836, 10 Ky. Law Rep. 656. Mo. State V. Berry, 78 S. W. 611, 179 Mo. 377. N. M. State v. Orfanakis, 159 P. 674, 22 N. M. 107. Okl. Hopkins v. State, 108 P. 420, 4 Okl. Cr. 194, rehearing denied 111 P. 947, 4 Okl. Cr. 194. Pa. Commonwealth v. Henderson, 89 A. 567, 242 Pa. 372. Tex. Johnson v. State, 193 S. W. 674, 81 Tex. Cr. R. 71; Marion v. State, 190 S. W. 499, 80 Tex. Or. R. 478; Cozby v. State, 189 S. W. 957, 80 Tex. Cr. R. 323; Kelly v. State, 149 S. W. 110, 67 Tex. Cr. R. 72; Cross V. State (Or. App.) 101 S. W. 213; Menach v. State (Or. App.) 97 S. W. 503 ; Griffith v. State, 78 S. W. 347, 47 Tex. Cr. R. 64 ; Stokes v. State (Cr. App.) 70 S. W. 95. W. Va. State V. Donahue, 90 S. E. 834, 79 W. Va. 260. Wyo. Mortimore v. State, 161 P. 766, 24 Wyo. 452. *s Carson v. State, 86 S. W. 1011, 48 Tex. Cr. R. 157. *o Hayes v. State, 36 Tex. Cr. R. 146, 35 S. W. 983. BO State V. Johns, 132 N. W. 832, 152 Iowa, 383. 51 People V. Yun Kee, 96 P. 95, 8 Cal. App. 82. 5 2 Ala. Roberts v. State, 54 So. 993, 171 Ala. 12. Ga. Hall v. State, 65 S. E. 400, 133 Ga. 177; Roberts v. State, 40 S. E. 297, 114 Ga. 450. 111. People V. Schallman, 113 N. B. 113, 273 111. 564; People v. Israel, 109 N. E. 969,, 269 Illj 284. Ky. Ayers v. Commonwealth, 145 S. W. 1106, 147 Ky. 801; Id., 145 S. W. 1107, 147 Ky. 804. Miss. Lamar v. State, 64 Miss. 428, 1 South. 354; Gerdine v. Same, 64 Miss. 798, 2 South. 313. Mont. State V. Smith, 190 P. 107, 57 Mont. 563 ; Same v. Dunn, 190 P. 121, 57 Mont. 591. N. J. State V. Rombolo, 103 A. 203, 91 N. J. Law, 560. ■ Tex. Le Master v. State, 196 S. W. 829, 81 Tex. Cr. R. 577; Smith v. State, 148 S. W. 699, 67 Tex. Cr. R. 27 ; Godsoe v. State, 108 S. W. 388, 52 Tex. Cr. R. 626; Brittain v. State, 105 S. W. 817, 52 Tex. Cr. R. 169; Puryear v. State, 28 Tex. App. 73, 11 S. W. 929; Knowles v. State, 27 Tex. App. 503, 11 S. W. 522; Riojas v. State, 9 Tex. App. 95 ; Berry v. State, 8 Tex. App. 515; Miles v. State, 1 Tex. App. 510. W. Va. State V. Hertzog, 46 S. E. 792, 55 W. Va. 74; State v. Sheppard, 39 S. E. 676, 49 W. Va. 582. Instructions held properly refus- ed within rule. Where defendant went onto decedent's premises to set- 138 INSTRUCTIONS TO JURIES 276 an abstract proposition of law, is error if it leaves the jury in doubt as to how it should ,be applied to the evidence.^* Thus, where the defendant in a criminal case asks for an instruction which would be correct only under. an exceptional state of facts, he must preface the instruction by a predicate which would bring it under the operation of such. a state of facts.®* So a charge on insanity as a defense should be applied to the particular facts of the case on trial. ^ So, .if an issue is raised by the evidence as to whether a witness is an accomplice or not, and there is evi- dence that he did certain .things, or omitted to do certain things, which in law would make him an accomplice, the jury should be told to find that he was. an accomplice, if they believe from all the evidence that such things were done or omitted by him, and a mere abstract proposition of law. as to what constitutes an accorri- plice is insufficient.^® However, a charge stating the law in gen- eral terms, without stating the exceptions, is, not improper, where there is no evidence tending to bring the case within such excep- tions,®' and it is. not necessary that an instruction on circumstan- tial evidence should make an application of the law to the facts.®* Since the instructions should be applicable to. the issues in the tie a claim for damages resulting from the escape of defendant's hogs and an altercation ensued in which defendant killed deceased, it was not error to refuse to charge that defendant was entitled to go on decedent's premises to transact any legitimate business; such statement being a mere abstract assertion of one of defendant's legal rights. Robinson v. Commonwealth, 148 S. W. 45, 149 Ky. 291. Instructions held not objection- able witMn rule. Where, in a pros- ecution for manslaughter the court in- structed that the instrument used was to be considered in judging intent, and if it were one not likely to pro- duce death the intent to kill was not to be presumed unless it evidently ap- peared from the manner of use ; also, that where homicide occurred under the influence of sudden passion, by means not in their nature calculated to produce death, the person doing the killing was not guilty of homicide, unless the intent to kill appeared, but he might be prosecuted for any grade of assault and battei-y, and then in- structed that if the jury found de- fendant struck decedent and killed him, but did not find that he intended to do so, they might find defendant guilty of aggravated assault and bat- tery, after which followed a number of definitions relative to assault and bat- tery, and an instruction that if de- fendant struck decedent with a stick with no intention of killing, and he was not justified on the grounds of self-defense, etc., they might find de- fendant guilty of assault and battery, it was held that the first two instruc- tions were not objectionable on ac- count of failure to apply the princi- ples therein enunciated to the facts of the case. Perrin v. State, 78 S. W. 930, 45 Tex. Or. R. 560. 53 Davis V. State, 51 N. E. 928, 152 Ind. 34. 71 Am. St. Rep. 322. 5 4 State V. Collette, 31 So. 73, 106 La. 423. 6 5 Boswell V. State, 63 Ala. 307, 35 Am. Rep. 20; Stewart v. State (Tex. Cr. App.) 77 S. W. 791. 6 6 Armstrong v. State, 33 Tex. Or. R, 417, 26 S. W. 829. 5 7 State V. Downer, 21 Wis. 274. 5 8 Grimsinger v. State, 69 S. W. 583, 44 Tex. Cr. R. 1. 277 APPLICABILITY TO PLEADINGS AND EVIDENCE §139 case, the court need not and should not instruct on matters not in dispute between the .parties.^* § 139. Evidence excluded or withdrawn, or improperly admitted Instructions based on evidence which the cdurt has properly excluded,** or which has .been withdrawn by the party introduc- ing it,®^ or which has been improperly admitted by the court,®^ or which has been withdrawn from the jury .because illegally ad- 5 9 Ala. Watts v. State, 63 So. 18, 8 Ala. App. 264; Mitchell v. State, 30 So. 348, 129 Ala. 23; McLeroy v. State, 25 So. 247, 120 Ala. 274; Scrog- gins V. State, 25 So. 180, 120 Ala. 369 ; Gafford v. State, 25 So. 10, 122 Ala. 54; Rose v. State, 23 So. 638, 117 Ala. 77. Ark. Lowery v. State, 203 S. W. 838, 135 Ark. 159. 111. People V. Lehr, 63 N. E. 725, 196 111. 361, affirming judgment 93 111. App. 505. Iowa. State v. Sparegrove, 112 N. W. 83, 134 Iowa, 599. Kan. State v. Loomer, 184 P. 723, 105 Kan. 410. Ky. Southern Express Co. v. Com- monwealth, 198 S. W. 207, 177 Ky. 767. Mo. State V. Atchley, 84 S. W. 984, 186 Mo. 174. S. C. State V. Thrailkill, 50 S. E. 551, 71 S. C. 136. S. D. State v. Johnson, 149 N. W. 730, 34 S. D. 601. Tex. Mosley v. State, 198 S. W. 146, 82 Tex. Cr. R. 16 ; Loggins v. State, 149 S. W. 170, 67 Tex. Cr. R. 438 ; Bailey v. State, 144 S. W. 996, «5 Tex. Cr. R. 1 ; Trinkle v. State, 131 S. W. 583, 60 Tex. Cr. R. 187 ; Moore T. State, 114 S. W. 807, 55 Tex. Cr. R. 3; McKinzie v. State (Cr. App.) 102 S. W. 414; Williams v. State (Cr. App.) 51 S. W. 904; Sanders v. State, 42 S. W. 983, 38 Tex. Cr. R. 343. 60 Ala. Birmingham Ry., Light & Power Co. v. Mosetey, 51 So. 424, 164 Ala. Ill ; Rarden v. Cunningham, 34 So. 26, 136 Ala. 263. Ark. Pleasants v. Scott, 21 Ark. 370, 76 Am. Dec. 403. Ga. Whitehead v. Pitts, 56 S. E. 1004, 127 ,Ga. 774. 111. People V. Johns, 190 111. App. 367. Md. Citizens' Mut. Fire Ins. Co. ■of Cecil County v. Conowingo Bridge Co., 82 A. 372, 116 Md. 422 ; Morrison V. Welty, 18 Md. 169. .Mass. Commonwealth v. Cosse- boom, 155 Mass. 298, 29 N. E. 463. Mick. Township School Dist. of Wakefield v. MacRae, 165 N. W. 618, 198 Mich. 693. Mo. Nafziger v. Mahan (App.) 191 S. W. 1080 ; Lattimore v. Union Elec- tric Light & Power Co., 106 S. W. 543, 128 Mo. App. 37. Neb. Mefford v. Sell, 92 N. W. 148, 3 Neb. (Unof.) 566 ; Pease Piano Co. V. Cameron, 76 N. W. 1053, 56 Neb. 561. N. Y. Atlantic Communication Co. V. Zimmermann, 170 N. Y. S. 275, 182 App. Div. 862 ; Foley v. Xavier, 93 N. Y. S. 289, 104 App. Div. 1. S. D. SheflSeld v. EVeleth, 97 N. W. 367, 17 S. D. 461. Tex. Cosgrove v. Smith (Civ. App.) 183 S. W. 109; International & (i. N. R,. Co. V. Moynahan, 76 S. W. 808, 33 Tex. Civ. App. 302. Wask. Rich v. Ryan, 175 P. 32, 103 Wash. 474; Nye v. Kelly, 52 P. 528, 19 Wash. 73. «i Hayes v. Kelley, 116 Mass. 300. 6 2 Conn. St. Martin v. New York, N. H. & H. R. Co., 94 A. 279, 89 Conn. 405, L. R. A. 1916I>, 1035. Ga. American Harrow Co. v. Dol- vin, 45 S. E. 983, 119 Ga. 186. 111. Republic Iron & Steel Co. v. Radis, 106 111. App. 530. Ind. Williams v. Atkinson, 52 N. E. 603, 152 Ind. 98. Iowa. Conger v. Bean, 58 Iowa, 321, 12 N. W. 284. Mick. Molyneaux v. Bradley Mil- ler & Co., 132 N. W. 1013, 167 Mich. 278. Mo. Weaver v. Hendrick, 30 Mo. 502. Mont. Ford v. Drake, 127 P. 1019. 46 Mont. 314. N. J. O. J. Gude Co., New York v. §140 INSTRUCTIONS TO JURIES 278: mitted,®* are erroneous, and properly refused, and a party on whose motion evidence has been .stricken out is not entitled to- an instruction based thereon.** § 140. Sufficiency of evidence to support instructions Sufficiency of evidence as predicate for instruction on confessions, see post,. ' § 221. SuiBciency of evidence to authorize or require Instructions on alibi, see post,- § 331. Sufficiency of evidence to sustain instructions on credibility of vritnesses, see post, § 149. Sufficiency of evidence to sustain instructions on grade of degree of offense,- see post, § 316. Courts have expressed themselves in .varying phraseology with respect to the amount of evidence required to support an instruc- tion. In some jurisdictions it has been said that if the evidence- tends to prove the facts upon which an instruction is based,®® or tends to prove such facts in an appreciable degree,*® the instruc- tion will be justified. In other jurisdictions it is held that slight evidence of the facts upon which an instruction is predicated will' preclude the objection that it is abstract, and warrant the giving of it.®' In still other jurisdictions the rule is that it is proper to- Nevrark Sign Co., 101 A. 392, 90 N. J. Law, 686. N. Y. Finck V. Scbaubacher, 69 N. Y. S. 977, 34 Misc. Rep. 547. Tex. Lipscomb v. Adamson Lum- ber Co. (Civ. App.) 217 S. W. 228; Rotan Grocery Co. v. Martin (Civ. App.) 57 S. W. 706. Va. Carlin & Co. v. Fraser, 53 S. E. 145, 105 Va. 216 ; Norfolk & W. Ry. Co. V. Stevens, 34 S. E. 525, 97 Va. 631, 46 L. R. A. 367. W. Va. Anderson v. Lewis, 61 S. B. 160, 64 W. Va. 297. Wis. Coman v. Wunderlich, 99 N. W. 612, 122 Wis. 138. Compare Leary v. State, 117 S. W. 822, 55 Tex. Cr. R. 547. 63 Salter v. Williams, 10 Ga. 186. 64 Bluefleld Produce & Commission Co. v. City of Bluefield, 77 S. E. 277, 71 W. Va. 696. 8 6 Ind. Harris v. State, 58 N. B. 75, 155 Ind. 265. Tenn. Goodall v. Thurman, 1 Head, 209. Va. Dingee v. Unrue's Adm'x, 35 S. E. 794, 98 Va. 247; Carpenter v. Virginia-Carolina Chemical Co., 35 S. B. 358, 98 Va. 177 ; Tyson v. William- son, 32 S. E. 42, 96 Va. 636; Reusens V. Lawsqn, 31 S. E. 528, 96 Va. 285; Washington Southern Ry. Co. v. La- cey, 94 Va. 460, 26 S. B. 834 ; Early v. Garland's Lessee, 13 Grat. 1. W. Va. Carrico v. West Virginia- C. & P. Ry. Co., 39 W. Va. 86, 19 S. E. 571, 24 L. R. A. 50; State v. Bet- sail, 11 W. Va. 703. Evidence not such as should con- vince a jnry. Where there is testi- mony tending to establish a particular- result, a prayer for instructions af- firming an admitted legal proposition, and which involves the consideration- of this testimony, cannot be denied on the ground that it is abstract, because the evidence is not such as should con- vince the jury. Glealand v. Walker, 11 Ala. 1058, 46 Am. Dec. 238. 6 Lyons v. Fairmont Real Estate- Co., 77 S. E. 525, 71 W. Va. 754. «7 Ala. Knowles v. Ogletree, 96' Ala. 555, 12 So. 397 ; Miller v. State, 54 Ala. 155 ; Hair v. Little, 28 Ala. 236; Bradford v. Marbury, 12 Ala. 520, 46 Am. Dec. 264. Arh. Goodell v. Bluff City Lum- ber Co., 57 Ark. 203, 21 S. W. 104; Mc- Neill V. Arnold, 22 Ark. 477. 279 APPLICABILITY TO PLEADINGS AND EVIDENCE §140 refuse an instruction not supported .by some substantial evi- dence.®* Whether any real conflict of authority is indicated by the above difference in phrasing is doubtful. The courts are agreed that it is proper to refuse an instruction supported by a mere scintilla of evidence,** and the modern doctrine is that evidence which is insufficient to sustain a finding upon a particular issue will be insufficient to support an instruction upon such issue." The court should not give an instruction embodying a proposition which the Cal. Perlberg v. Gorlaam, 10 Cal. 120. C&iai. Eumberg v. Cutler, 84 A. 107, 86 Conn. 8. Fla. Florida Ry. & Navigation Co. V. Webster, 25 Fla. 394, 5 So. 714. Ga. Camp v. Pbillips, 42 Ga. 289. ni. Thompson v. Duff, 119 111. 226, 10 N. E. 399; Chicago & W. I. E. Co. v. Bingenheimer, 116 111. 226, 4 ]S\ E. 840; Fames v. Rend, 105 lU. 506 ; Kane v. Torbit, 23 111. App. 311. In-d. Brunaugh v. State, 90 N. E. 1019, 173 Ind. 483; State v. Carey, 55 N. B. 261, 23 Ind. App. 378 ; Reed v. State, 40 N. E. 525, 141 Ind. 116. Kan. McKnight v. Strasburger Bldg. Co., 150 P. 542, 96 Kan. 118. Ky. Minor v. Gordon, 188 S. W. 768, 171 Ky. 790, modifying judgment on rehearing 186 S. W. 480, 170 Ky. 609; Lischy v. Schrader, 47 S. W. 611, 104 Ky. 657, 20 Ky. Law Rep. 843. Mich. Carrell v. Kalamazoo Cold- Storage Co., 70 N. W. 323, 112 Mich. 34. Mo. Hofelman v. Valentine, 26 Mo. 393. S. C. Brucke v. Hubbard, 54 S. B. 249, 74 S. C. 144. W. Va. Snedeker v. Rulong, 71 S. E. 180, 69 W. Va. 223. 68 Bagdad Land & Lumber Co. v. Poston, 68 So. 180, 69 Fla. 340; Miller V. Neale, 119 N. W. 94, 137 Wis. 426, 129 Am. St. Rep. 1077. In Wisconsin an early decision held that, where a requested instruc- tion covers a point material to the issue, and there is some evidence tend- ing to support it, its refusal is error ; whether the facts stated therein are true or not being a question for the jury, not for the court. Sailer v. Barnousky, 60 Wis. 169, 18 N. W. 763. 6 9 Leverich v. Danville Collieries Coal Co., 193 111. App. 627; Gould .v. Gilligan, 64 N. E. 409, 181 Mass. 600 ; Chesapeake & O. Ry. Co. v. F. W. Stock & Sons, 51 S. E. 161, 104 Va. 97. 7 U. S. (C. C. A. Ark.) American Surety Co. v. Choctaw Const. Co., 135 F. 487, 68 C. C. A. 199. Minn. Knapp v. Northern Pac. R. Co., 166 N. W. 409, 139 Minn. 338. Tex. International & G. N. R. Co. V. Hall, 12 Tex. Civ. App. 11, 33 S. W. 127; Odle v. State, 13 Tex. App. 612. Va. Upton & Walker v. R. D. Hol- loway & Co., 102 S. E. 54, 126 Va.- 657 ; American Locomotive Co. v. Whitlock, 63 S. B. 991, 109 Va. -238. W. Va. McDonald v. Cole, 32 S. B. 1033, 46 W. Va. 186. Evidence on issue considered in connection ivitli evidence on cor-, relative issnes. To justify an in- struction upon an issue of fact, there should not only be evidence tending to establish that fact, but it should be sufficient, either alone or in connec- tion with other evidence upon correla- tive issues, to sustain the finding. Antone v. Miles, 105 S. W. 39, 47 Tex. Civ. App. 289. In Virginia, where the courts now support the rule stated in the text, some of the earlier cases held that evidence tending to prove a fact was sufficient to justify an instruction ap- plicable thereto, if requested, though the evidence was insufficient to sup- port a verdict founded thereon. Jones V. Morris, 33 S. B. 377, 97 Va. 43 ; Richmond Passenger & Power Co. V. Allen, 43 S. E. 356, 101 Va. 200; Southern Ry. Co. v. Wilcox, 39 S. E. 144, 99 Va. 394. § 140 INSTEDCTIONS TO JUEIBS 280 evidence does not tend in an appreciable degree to support,''^ and it is proper to refuse an instruction whose only basis is evidence which amounts to mere conjecture, or merely affords the possi- bility of an inference,'^ or an instruction based upon immaterial and nonprobative facts incidentally revealed on the trial of an issue,''^ or an instruction predicated upon' isolated portions of the testimony in support of the theory of a party and assuming the truth of controverted facts.'* An instruction based 'upon a hy- pothesis which is contrary to the physical facts is erroneous, and is properly refused.''^ On the other hand, an instruction will not constitute reversible error, if there is any appreciable evidence tending to support it, although, on the final test, such evidence is not sufficient, to sup- port the verdict.'* Evidence which will justify an instruction may be either direct, or founded on reasonable inference from other evidence," and it is not error to give an instruction based on a theory of the facts which may reasonably be argued from 71 Diddle v. Continental Casualty Co., 63 S. B. 962, 65 W. Va. 170, 22 L. R. A. (N. S.) 779. ~ 72 Commonwealth v. Boutwell, 162 Mass. 230, 38 N. H. 441; Kopacin v. Crown-Columbia Pulp & Paper Co., 125 P. 281, 62 Or. 291; Reynolds v. State, 8 Tex. App. 493. T3 Palmer v. Magers, 102 S. B. 100, 85 W. Va. 415. 7* Foley V. Riverside Storage & Cartage Co., 48 N. W. 154, 85 Mich. T. 7 s Colorado & S. Ry. Co. v. Davis, 127 P. 249, 23 Colo. App. 41; State V. Vaughan, 98 S. W. 2, 200 Mo. 1; Curtis V. Hudson Valley Ry. Co., 143 N. Y. S. 383, 158 App. Div. 373. 76 Barna v. Gleason Coal & Coke Co., 98 S. E. 158, 83 W. Va. 216; Myers v. Cook (W. Va.) 104 S. E. 593. 7 7 Sovereign Camp, Woodmen of the World, v. McDaniel, 93 S. E. 105, 20 6a. App. 430; Peoria Marine & Fire Ins. Co. v. Anapow, 45 111. 86; Stephan v. Metzger, 69 S. W. 625, 95 Mo. App. 609 ; Maes v. Texas & N. O. Ry. Co. (Tex. Civ. App.) 23 S. W. 725. Implied warrant;''. Where de- fendant, in an action by a purchaser of corn to rescind the sale, counter- claims, and testifies that the purchas- er informed him that he Intended to use the corn" for seed, an instruction on the suhject of implied warranty was properly given. Totten v. Stev- enson, 135 N. W. 715, 29 S. D. 71. Inference ot knonrledge of ordi- nance. Where the evidence sliowed that a street car was operated at a speed in excess of that fixed by'a mu- nicipal ordinance, the court properly charged that a pedestrian could pre- sume that the ordinance was not be- , ing violated, and that the pedestrian knew of the ordinance, though there was no evidence of such knowledge. Richmond v. Tacoma Ry. & Power Co., 122 P. 351, 67 Wash. 444. Justification for use of particu- lar words. An objection to the use of the word "compelling," in -an in- struction that, if defendant and his brother armed themselves with the Intention of compelling decedent to apologize, and upon his failing to do so sho_t and killed him, they would both be"guilty of murder, was not ten- able, though no witness had used the word "compel," and though defendant testified that his brother said he was going to "ask" decedent to apologize; it appearing that the mother of de- fendant stated that defendant's broth- er said he would "make" decedent apologize. Pipkin v. State, 97 S. W. 61, 80 Ark. 617. 281 APPLICABILITY TO PLEADINGS AND EVIDENCE § 140 the evidence.'* It is not necessary that the trial court should be entirely satisfied of the existence of the facts upon which an in- struction is founded in order to be justified in giving it,''* or that the jury might not conceivably have found the nonexistence of such facts,*" and an instruction should not be refused merely be- cause the court may believe that the weight of the evidence does not support it,*^ or because the evidence on which it is based ap- pears improbable*^ or inconclusive, or unsatisfactory,** or because the preponderance of the evidence is against the theory of the ■existence of the facts upon which it is based.** A theory of the case supported by the testimony of but one witness may be sub- mitted to the, jury.*® In a criminal case the testimony of defendant must be taken as true for the purpose of determining whether there is evidence on which to base an instruction asked by him,*® and an instruc- tion based on an hypothesis which is supported by the congruous parts of the testimony of several witnesses is not objectionable, as not justified by the evidence.*' A conflict. in the evidence on a particular issue will warrant the court in instructing thereon,** or will make it error for the court to refuse an instruction on such issue,** or will make it proper to refuse an instruction ignoring such issue ; *" and, conversely, the fact that the evide'nce is conflicting with respect to the exist- 7 8 Wahlgren v. Market St. Ry. Co., 112; Davis v. Same, 10 Tex. App. 31; 62 P. 308, 132 CaL 656, judgment Whaley v. Same, 9 Tex. App. 305; affirmed on rehearing 64 P. 993, 132 Sisk v. State, 9 Tex. App. 246 ; Brown Cal. 656. V. State, 9 Tex. App. 81; Heath v. 7 9 Flourney v. Andrews, 5 Mo. 513. State, 7 Tex. App. 464. 80 McDonald' v. New World Life 84 Newbury v. Getchell & Martin Ins. Co., 136 P. 702, 76 Wash. 488. Lumber & Manufacturing Co., 69 N. 81 Peoria, D. & B. Ry. Co. v. Puck- w. 743, 100 Iowa, 441, 62 Am. St. ett, 42 111. App. 642 ; De Camp v. Mis- Eep. 582. sissippi & M. R. Co., 12 Iowa, 348; ss Christy v. Des Moines City Ry. State V. Wright, 40 La. Ann. 589, 4 Co., 102 N. W. 194, 126 Iowa, 428. ^*'".^oo!?^^o' r^^T™^ 1,^™ w- ^'?*" '' Dial V. State, 49 So. 230, 159 Ala. er (1886) 38 La Ann 536; Washing gg ^33 ^^ g^ ^ ^g p^ j^ ^_ ^° T; ^^^a'}i ria. Walker v. Lee, 40 So. 881, 51 Fla. 360. lU. Gibson v. Lafferty, 180 111. App. 629. Iowa. Waltham Piano Co. v. Lind- holm Furniture Co., 150 N. W. 1040, 168 loWa, 728. Mo. Darr v. Gratiot Bldg. Co. (App.) 198 S. W. 481. Neb. Atkins v. Gladwish, 27 Neb. 841, 44 N. W. 37. Tex. Hayes v. State (Tex. Cr. App.) 39 S: W. 106; Wasson v. State, 3 Tex. App. 474. Instruction based on contradic- tory testimony of single ivitness. A request to charge the legal effect of a portion of the testimony of the sole witness for the plaintiff is prop» erly refused, where the same witness on cross-examination contradicts the matters to which the request relates. Hardeman v. Bell, 47 S. B. 919, 120 Ga. 342. 92 Hedges v. Metropolitan St. Ry. Co., 102 S. W. 1086, 125 Mo. App. 583. 9 3 Texas & N. O. E. Co. v. Scar- borough (Tex. Civ. App.) 104 S. W. 408, judgment affirmed 108 S. W. 804, 101 Tex. 436. t>i Parkinson v. Kortum, 127 N. W. 208, 148 Iowa, 217. OB John L. Rowan & Co. v. Hull, 47 S. E. 92, 55 W. Va. 335, 104 Am. St, Rep. 998. ■ 8 Ante, § 137. 87 tr. S, (C. C. N. T.) Brixey v. City of New York, 145 F. 1016. Ark. El Dorado & B. R. Co. v. Whatley, 114 S. W. 234, 88 Ark. 20, 129 Am. St. Rep. 93. Ga. Fruit Dispatch Co. v. Rough- ton-Halliburton Co., 70. S. E. 356, 9 Ga. App. 108; Mendel v. Miller & Sons. 56 S. E. 88, 126 Ga. 834, 7 L. R. A. (N. S.) 1184. HI. Cox V. Cleveland, 0., 0. & St. L. Ry. Co., 151 111. App. 473 ; McFall V. Smith, 32 111. App. 463. Iowa. Morton v. Woods, 135 N. W. 400, 154 Iowa, 728.; Teager v. Chi- cago, R. I. & P. Ry. Co., 123 N. W. 974, 148 Iowa, 231; Burke v. Mally, 120 N. W. 305, 141 Iowa, 555. Ky. Louisville Ry. Co. v. Buck- ner's Adm'r, 113 S. W. 90. Mich. James v. Shores, 151 N. W. 558, 184 Mich. 460. Minn. Lacey v. Minneapolis St. Ry. Co., 136 N. W. 878, 118 Minn. 301. , Mo. Crumley v. Western Tie & TimlDer Co., 129 S. W. 46, 144 Mo. App. 528. Neb. Hutchinson v. Western Bridge 283 APPLICABILITY TO PLEADINGS AND EVIDENCE §142 unless it is clearly shown not to be harmful.^* On the other hand, a judgment will not be reversed because of the giving of instruc- tions not based upon the evidence, if the party complaining is not prejudiced thereby or the jury is not misled.*^ & Construction Co., 150 N. W. 193, 97 Neb. 439. N. J. Baker v. North Jersey St. Ry. Co., 72 A. 434, 77 N. J. Law, 336. N. Y. Wells V. Baker, 126 N. Y. S. 923, 141 App. Div. 717; McDonnell V. Andrew J. Kobinson Co., 100 N. E. 45, 206 N. Y. 489, reversing judgment 127 N. Y. S. 1130, 143 App. Div. 905. Okl. Continental Supply Co. v. Patrick, 168 P. 996. R. I. Di Sandro v. Providence Gas Co., 102 A. 617, 40 R. I. 551. Tex. Crawford v. Tbos. Goggan & Bros. (Civ. App.) 217 S. W. 1106; Texas & P. Ry. Co. v. White (Civ. App.) 174 S. W. 953 ; San Antonio & A. P. Ry. Co. V. Weigers, 54 S. W. 910, .22 Tex. Civ. App. 344. Va. Newport News & O. P. By. & Electric Co. v. McCormick, 56 S. E. -281, 106 Va. 517. Wis. Ward v. Henry, 19 Wis. 76, .88 Am. Dec. 672. 8 8 Baltimore & O. R. Co. v. Peck, 101 N. E. 674, 53 Ind. App. 281. sD Ala. Carrington v. Odom, 27 So. .510, 124 Ala.' 529; Towns v. Riddle, 2 Ala. 694. Ark. McNeill v. Arnold, 22 Ark. 477. Cal. Renfro v. Fresno City Ry. Co., 84 P. 357, 2 Cal. App. 317. Colo. Houck V. Williams, 81 P. 800, 34 Colo. 138. Ga. Conley v. Buck, 28 S. E. 97, 100 Ga. 187. 111. Chicago & A. Ry. Co. v. Wal- ters, 75 N. E. 441, 217 111. 87 ; Blatch- ford V. Boyden, 122 111. 657, 13 N. E. 801 ; Corbin v. Sheerer, 3 Oilman, 482. lad. Indianapolis St. Ry. Co. v. Hackney, 77 N. E. 1048, 39 Ind. App. 372 ; Boltz v. Smith, 3 Ind. App. 43, 29 N. E. 155. Iowa. Camp V. Chicago Great Western Ry. Co., 99 N. W. 735, 124 Iowa, 238. Kan. Hackler v. Evans, 79 P. 669, 70 Kan. 896. Ky. Louisville & N. R. Co. v. Gutt- man, 146 S. W. 731, 148 Ky. 235; Sav- age V. Bulger, 77 S. W. 717, 25 Ky. Law Rep. 1269. Md. Coffin V. Brown, 50 A. 567, 94 Md. 190, 55 L. R. A. 732, 89 Am. St. Rep. 422. Mich. Tobin v. Modern Woodmen of America, 85 N. W. 472, 126 Mich. 161. Mo. Murphy v. Metropolitan St. Ry. Co., 102 S. w; 64, 125 Mo. App. 269; Sack v. St. Louis Car Co., 87 S. W. 79, 112 Mo. App. 476; Claflin V. Sommers, 39 Mo.. App. 419. Mont. Thornton-Thomas Mercan- tile Co. V. Bretherton, 80 P. 10, 32 Mont. 80. Neb. Clark v. Folkers, 95 N. W. 328, 1 Neb. (Unof.) 96. N. Y. Goodstein v. Brooklyn Heights R. Co., 74 N. Y. S. 1017, 69 .App. Div. 617. N. C. Eubanks v. Alspaugh, 52 S. E. 207, 139 N. C. 520. Ohio. French v. Millard, 2 Ohio St. 44. . Pa. Kramer v. Winslow, 154 Pa. 637, 25 A. 766. S. C. Burns v. Goddard, 51 S. E. 915, 72 S. C. 355. ' Tenn. Southern Oil Works v. Bickford, 14 Lea, 651; Hatfield v. Griffith, 1 Lea, 300. Tex. Sheldon Canal Co. v. Miller, 90 S. W. 206, 40 Tex. Civ. App. 460. Va. Poore v. Magruder, 24 Grat. 197. Wash. Irwin v. BufCalo Pitts Co., 81 P. 849, 39 Wash. 346; Martin v. Union Mut. Life Ins. Co., 13 Wash. 275, 43 Pac. 53. W. Va. Maxwell v. Kent, 39 S. E. 174, 49 W. Va. 542. Wis. Barker v. Knickerbocker Life Ins. Co;, 24 Wis. 630. 143 INSTRUCTIONS TO JURIES 284 D. Instructions Excluding or Ignoring Issues, Defenses, oa Evidence § 143. General rule As a general rule, instructions which exclude or ignore issues or defenses upon which there is some evidence, or having sup- port in the evidence, are erroneous,^ and' are properly refused ; * lU. S. (C. C. A. Alaska) Dome City Bank v. Barnett, 184 F. 607, 106 C. C. A. 611. Ala. Mann v. Darden, 60 So. 454, 6 Ala. App. 555 ; Woodward Iron Co. V. Brown, 52 So. 829, 167 Ala. 316; Hyde v. Cain, 47 So. 1014, 159 Ala. 364 ; Davis v. Miller Brent Lumber Co., 44 So. 639, 151 Ala. 580; Duncan V. St. Louis & S. F. R. Co., 44 So. 418, 152 Ala. 118; Sherrell v. Louisville & N. R. Co., 44 So. 153, 148 Ala. 1; C. N. Robinson Co. v. Green, 43 So. 797, 148 Ala. 434; Loveman v. Bir- mingham Ry., L. & P. Co., 43 So. 411, 149 Ala. 515. Ark. W. A. Smitli & Bro. v. Spln- nenweber & Peters, 170 S. W. 84, 114 Ark. 384; Richardson v. Cohen, 150 S. W. 574, 105 Ark. 697 ; St. Louis & S. F. R. Co. V. Van Zant, 142 S. W. 1144, 101 Ark. 586 ; Rector v. Robins, 102 S. W. 209; 82 Ark. 424; Southern Express Co. v. Hill, 98 S. W. 371, 81 Ark. 1 ; Bayles v. Daugherty, 91 S. W. 304, 77 Ark. 201. Cal. Quackenbush v. Los Angeles Ry. Corporation, 151 P. 755, 28 Cal. App. 173 ; Waterman v. Visalia Elec- tric R. Co., 137 P. 1096, 23 Cal. App. 350. Colo. King Solomon Tunnel & De- velopment Co. V. Mary Verna Mining Co., 127 P. 129, 22 Colo. App. 528; Kent Mfg. Co. v. Zimmerman, 110 P. 187, 48 Colo. 888. Conn. Newell V. Roberts, 13 Conn. 63. Fla. Mulliken v. Harrison, 44 So. 426, 53 Fla. 255. Ga. Purvis v. Atlanta Northern Ry. Co., 72 S. E. 343, 136 Ga. 852; Wadsworth v. Wadsworth, 68 S. B. 649, 134 Ga. 816 ; Susong v. McKenna, 55 S. E. 236, 126 Ga. 433. Idaho. Soule v. First Nat. Bank of Ashton, 140 P. 1098, 26 Idaho, 66. 111. Costly v. McGowan, 50 N. E. 1047, 174 111. 76 ; Lockett v. Zimmer- mann, 185 111. App. 58; Connor v. American Spirits Mfg. Co.,- 175 111. App. 159 ; Tate v. Cleveland, C, C. & St. L. Ry. Co., 147 111. App. 155; Springfield Consol. Ry. Co. v. Gregory,. 122 111. App. 607; Merry v. Calvin, 122 111. App. 459 ; George E. Lloyd & Co. V. Matthews, 119 111. App. 546, affirmed Same v. Matthews & Rice (1906) 79 N. E. 172, 223 111. 477, 7 L. R. A. (N. S.) 376; (1906) Morris v. Chicago Union Traction Co.,' 119 111. App. 527 ; St. Louis & B. Electric Ry. Co. V. Erlinger, 112 111. Aj)p. 506; Schnellbacher v. Frank McLaughlin Plumbing Co., 108 111. App. 486; Union Stockyard & Transit Co. v. Goodman,. 91 111. App. 426. Ind. Julius Keller Const. Co. v. Herkless, 109 N. E. 797, 59 Ind. App. 472 ; Neeley v. Louisville & S. I. Trac- tion Co., 102 N. B. 455, 53 Ind. App. 659. Iowa. Boone v. Lohr, 154 N. W.. .591, 172 Iowa, 440; First Nat. Bank of Shenandoah v. Cook, 153 N. W. 169, 171 Iowa, 41 ; Schlichting v. Row- ell, 119 N. W. 151, 140 Iowa, 731; Lauer v. Banning, 118 N. W. 446, 140 Iowa, 319. Kan. Bartholomew v. Fell, 139 P. 1016, 92 Kan. 64; Taggart v. Chicago, R. I. & P. Ry. Co., 115 P. 534, 84 Kan. 671; Nash v. Barton Salt Co., Ill P. 462, 83 Kan. 447. Ky. South Covington & O. St. Ry. Co. v. Barr, 144 S. W. 755, 147 Ky. 549; Baker V. Crescent Coal Co., 133 S. W. 1146, 142 Ky. 191. Md. Anne Arundel County Com'rs V. Carr, 73 A. 668, 111 Md. 141; Adams V. Commissioners of Somerset Coun- ty, 66 A. 695, 106 Md. 197; Singer 2 See note 2 on page 288. 285 APPLICABILITY TO PLEADINGS AND EVIDENCE §143 this rule applying to instructions ignoring issues and defenses in Sewing Mach. Co. v. Lee, 66 A. 628, 105 Md. 663. Mich. Parmalee v. Wigent's Els- tate, 155 H. W. 577, 189 Mich. 507; Karwick v. Piekands, 137 N. W. .219, 171 Mich. 463; Commercial Bank v. Chatfield, 80 N. W. 712, 121 Mich. 641. Miss. Yazoo & M. V. R. Co. v. Bruce, 54 So. 241, 98 Miss. 727. lllo. Botts V. Chicago, B. & Q. R. Co., 167 S. W. 1154, 180 Mo. App. 368; Roberts v. Wahash R. Co., 134 S. W. 89, 153 Mo. App. 638; Phelan v. Gran- ite Bituminous Paving Co., 127 S. W. 318i, 227 Mo. 666, 137 Am. St. Rep. 582 ; Cytron v. St. Louis Transit Co., 104 S. W. 109, 205 Mo. 692; Zeis v. St. Louis Brewing Ass'n, 104 S. W. 99, 205 Mo. 638;' State ex rel. Ship- man V. Allen, 103 S. W. 1090, 124 Mo. App. 465; Trimble v. Moore, 102 S. W. 1057, 125 Mo. App. 601; Ern v. Rubinstein, 72 Mo. App. 337. Mont. Lynes v. Northern Pac. Rv. Co., 117 P. 81, 43 Mont. 317, Ann. Cas. 1912C, 183. Neb. Tillson v. Holloway, 134 N. W. 232, 90 Neb. 481, Ann. Cas. 1913B, 78 ; Bryant v. Modern Woodmen of America, 125 N. W. 621, 86 Neb. 372, 27 L. R. A. (N. S.) 326, 21 Ann. Cas. 865. Nev. Zelavin v. Tonopah Belmont Development Co., 149 P. 188, 39 Nev. 1. N. Y. Salowich v. National Lead Co., 143 N. Y. S. 606, 158 App. Div. 445 ; Barry v. Interborough Rapid Transit Co. (Sup.) 140 N. Y. S. 1054. N. C. Robinson v. HuffstetXer, 81 S. E. 753, 165 N. C. 459 ; Gore v. Mc- Pherson, 77 S. E. 835. 161 N. O. 638. OW. Brooks v. Reynolds, 132 P. 1091, 37 Okl. 767; Leach v. Hepler, 124 P. 68, 32 Okl. 729. Or. McGee v. Buckley, 102 P. 303, 54 Or. 250, motion to retax costs de- nied 103 P. 61, 54 Or. 250. Pa. Scott V. Pennsylvania Casual- ty Co., 87 A. 963, 240 Pa. 341 ; Gelger V. Pittsburgh Rys. Co., 83 A. 367, 234 Pa. 545; Kennedy v. Forest Oil Co., 49 A. 133, 199 Pa. 644 ; Stukey v. Ris- singer. 31 Pa. Super. Ct. 3. S. C. Hiller v. Bank of Columbia, 79 S. E. 899, 96 S. C. 74 ; Scarborough v. Woodley, 62 S. E. 405, 81 S. C. 329. S. D. Karsten v. Root, 153 N. W. 932, 36 S. D. Ill ; Roper v. Noel, 14.'! N. W. 130, 32 S. D. 405. Tex. Galveston, H. & S. A. Ry. Co. V. Templeton (Civ. App.) 175 S. W. 504; Wilkinson v. Fralin (Civ. App.) 149 S. W. 548; Precker v. Slayton (Civ. App.) 138 S. W. 1160; Cage & Crow v. Owens (Civ. App.) 103 S. W. 1191, judgment reversed Owens V. Cage & Crow, 106 S. W. 880, 101 Tex. 286; Missouri, K. & T. Ry. Co. of Texas v. Barnes, 95 S. W. 714, 42 Tex. Civ. App. 626 ; Kosmin- sky v. Hamburger. 51 S. W. 53, 21 Tex. Civ. App. 341 ; Eppstein v. Thomas, 44 S. W. 893, 16 Tex. Civ. App. 619 ; Pope v. Riggs (Civ. App.) 43 S. W. 306. Va. Hawkins & Buford v. Ed- wards, 84 S. E. 654, 117 Va. 311; Hawse V. First Nat. Bank of Pied- mont, W. Va., 75 S. E. 127, 113 Va. 588. Wast. McDonald v. McDougall, 150 P. 625, 86 Wash. 339; King v. King, 145 P. 971, 83 Wash. 615; Campbell v. Order of Washington, 102 P. 410, 53 Wash. 398. W. Va. Frank v. Monongahela Vallpy Traction Co., 83 S. E. 1009, 75 W. Va. 364 : Shires v. Boagess, 77 S. E. 542. 72 W. Va. 109; Mylius v. Raine-Andrew Lumber Co., 71 S. E. 404, 69 W. Va. 346. Illustrations of instructions er- roneous 'within rule. An instruc- tion, in an action on notes given to the president of a bank, ignoring the issue of plaintiff's good faith in mak- ing the loan to enable the borrower to pay a usurious debt to the bank. Snead 'v. Groover, 74 So. 81, 15 Ala. App. 515. In action for false impris- onment and malicious prosecution against defendant, owner of public bathing establishment on seashore, who had caused plaintiff's arrest for trespassing upon and erecting tent on land in front oif defendant's bath- house, instruction that plaintiff had a right to erect and maintain- tent against defendant's protest, which in- struction lost sight of defendant's par- amount right, as riparian owner, of §143 INSTRUCTIONS TO JURIES 286 criminal prosecution.* No instruction can be said to be merely access to and from sea was errone- ous. Johnson v. May, 178 N. Y. S. 742, 189 App. Div. 196. An instruc- tion in an action for damages for re- moval of a alleged partition fence, which ignored the statutory requisites of partition fences. Jones v. Deros- set (Mo. App.) 185 S. W. 239. An in- struction on fraud and deceit, inter- posed as a defense to an action on a note, not submitting in connection with theory of alleged fraudulent rep- resentations, the question whether de- fendants relied thereon and were mis- led to their injury . was erroneous. Ohio Valley Bank v. Berry, lOO S. B. 875, 85 W. Va. 95. An instruction, in an action on guaranty, pretermitting question whether guaranty was ex- ecuted before or after principal eon- tract was delivered. Dillworth v. Holmes Furniture & Vehicle Co., 73 So. 288, 15 Ala. App. 340. An in- struction covering the whole case, in action for slander, authorizing re- covery without finding of publication. 3 U. S. (C. C. A. Mo.) Gardner v. United States, 230 F. 575, 144 C. C. A. 629. Ala. Fealy v. City of Birming- ham, 73 So. 296, 15 Ala. App. 367; Walling V. State, 73 So. 216, 15 Ala. App. 275, certiorari denied Ex parte Walling, 73 So. 1008, 198 Ala. 696; Wright V. State, 72 So. 364, 15 Ala. App. 91 ; Blankenship v. State, 65 So. 860, 11 Ala. App. 125; Sanderson v. State, 53 So. 109, 168 Ala. 109; Moore v. State, 40 So. 345, 146 Ala. 687. Ala. White v. State, 32 So. 139, 133 Ala. 122. Cal. People v. Scott, 133 P. 496, 22 Cal. App. 54; People v. Wright, 122 P. 835, 18 Cal. App. 171 ; People V. Crosby, 120 P. 441, 17 Cal. App. 518; People v. Overacker, 115 P. 756, 15 Cal. App. 620. Colo. Martin v. People, 155 P. 318, 60 Colo. 575. Ga. Baker v. State, 91 S. E. 785, 19 Ga. App. 451; Mason v. State, 58 S. E. 139, 1 Ga. App. 534; Hall v. State, 47 S. B. 519, 120 Ga. 142. 111. Lane v. People, 142 111. App. 571; People v. Simmons, 113 N. B. 887, 274 111. 528; Pedple v. Duncan, 103 N. E. 1043, 261 111. 339; Koser V. People, 79 N. E. 615, 224 111. 201. Iowa. State v. Chambers, 161 N. W. 470, 179 Iowa, 436. Kan. State v. Abbott, 69 P. 160, 65 Kan. 139. Mich. Maillet v. People, 3 N. W. 854, 42 Mich. 262. Mo. State V. Stike, 129 S. W. 1024, 149 Mo. App. 104 ; State v. Bob- bltt, 146 S. W. 799, 242 Mo. 273. OW. Courtney v. State, 140 P. 163, 10 Old. Cr. 589. Tenn. Ohapple v. State, 135 S. W. 321, 124 Tenn. 105 ; Prazier v. State, 100 S. W. 94, 117 Tenn. 430. Tex. Rose v. State, 186 S. W. 202, 79 Tex. Cr. R. 413 ; Dawson v. State, 185 S. W. 875, 79 Tex, Cr. R. 371; Robinson v. State, 160 S. W. 456, 71 Tex. Cr. R. 561 ; Morgan v. State, 136 S. W. 445, 62 Tex. Cr. R. 39 ; Pickrell V. State, 182 S. W. 938, 60 Tex. Or. 572; Jacobs v. State, 115 S. W. 581, 55 Tex. Cr. R. 149 ; Beckham v. State, 8 Tex. App. 52. Wis. State V, Heiden, 121 N. W. 138, 139 Wis. 519; Duthey v. State, 111 N. W. 222. 131 Wis. 178, 10 L. E. A. (N. S.) 1032. Ignoring defense of insanity. Ill a prosecution for murder, an in- struction that, the killing being prov- ed, the burden of producing sufficient evidence to raise a reasonable douBi, in the defendant's favor of the ex- istence of facts or circumstances of mitigation, or that justify or excuse the homicide, will devolve on the ac- cused, unless the proof on the part of the prosecution sufficiently mani- fests that the crime c(?mmitted only amounts to manslaughter, or that ac- cused was justified or excused in com- mitting the homicide, did not ignore the defense of insanity, since it was included In the language used. Peo- ple V. Casey, 83 N. B, 278, 231 HI. 261. Instructions ignoring issue of conspiracy. Lane v. State, 70 So. 982, 14 Ala. App. 40 ; Morris v. State, 41 So. 274, 146 Ala. 66: Crittenden V. State, 32 So. 273, 134 Ala. 145; McLeroy v. State, 25 So. 247, 120 Ala. 274. 287 APPLICABILITY TO PLEADINGS AND EVIDENCE § 143 calculated to mislead the jury, if its necessary effect is to exclude Boomsliaft v. Klauber, 190 S. W. 616, 196 Mo. App. 222. In action for mal- icious prosecution, wliere it was al- leged that defendant testified falsely before the grand jury, and thereby obtained a return of indictment, de- fendant's requested instruetit)n as to plaintiffs right to recover, which did not include the element of wrongfully continuing proceeding already begun, was properly refused. Johnson v. Brady (Ind. App.) 126 N. E. 250. In a physician's action for services fur- nished a wife, defendant husband's request that, if the husband furnish- es the wife with sufficient means to provide her with what is reasonably necessary for her support and com- fort, he Is not liable for necessaries, unless he gives consent, was objec- tionable, as not Including any state- ment as to the effect of knowledge on the part of the husband, or as to the right of the wife to contract for the services. Vaughan v. Mansfield, 126 N. E. 376, 235 Mass. 14Y. An instruc- tion, in an action on running account for photographs furnished, declaring absolutely -liability for reasonable value of pictures, without regard to whether account was barred by limi- tation, statute having been pleaded by "defendant. Kansas City Photo Co. V. Kansas City Bridge Co. (Mo. App.) 195 S. W. 1051. An instruction per- mitting recovery in an action for in- juries to land, by alleged insufficient opening for water course in railway embankment, which disregards the is- sues whether a flood was so great that no negligence arose in failing to antic- ipate that opening would be insuffi- cient, and whether injury would have occurred regardless of size of open- ing. Sherwood v. St. Louis, S. W. Ry. Co., (Mo. App.) 18ff S. W. 260. In- struction in crossing accident case, stating that, if the railroad company by compliance with its duty of con- stant lookout could have discovered plaintiff's auto in time to avoid the accident, verdict should be for plain- tiff, is bad in ignoring the defense of contributory negljgence, pleaded and supported by evidence. Morenci Southern By. Co. v. Monsour, 185 P. 938, 21 Ariz. 148. An instruction, in replevin of automobile, directing a verdict for defendant, which omitted reference to the alleged removal of a prestolite tank of small value. Stoecker & Price Storage & Auction Co. V. Erving (Mo. App.) 204 S. W. 29. An instruction in an action for damages to an automobile by colli- sion with a street car, which ignored the defense of contributory negli- gence. Adams & Washam v. South- em Traction Co. (Tex. Civ. App.) 188 S. W. 275. A requested Instruction in a will contest ease, which ignored the issues of undue Influence. Thom- as V. Thomas (Mo.)' 186 S. W. 993. In action on award of arbitrators re- quiring plaintiff to clear land remain- ing to be cleared under contract, but not requiring cultivation thereof, though award included amount prom- ised plaintiff as bonus for cultivating land in addition to clearing it, in- struction to find amount due plaintiff if plaintiff had cleared land and de- fendant had agreed to pay him there- for was error, in ignoring fact that part of amount sued for was bonus ' for cultivation. Nave v. Dieckman (Mo. App.) 208 S. "W. 273. Omission of. element of ordinary care. An instruction that, If plaintiff saw or heard a train, or by exercising his sense of sight and hearing could have seen or heard it moving towards a crossing in time to have avoided injury, and was injured in attempting to cross ahead of it he could not re- cover, was properly refused, as it omitted the element of ordinary care. Lake Erie & W. B. Co. v. Sanders (Ind. App.) 125 N. E. 793. In action for damages to plaintiff's car from a collision with defendant's car, a charge that if plaintiff contributed to the injury he could not recover, and that contributory negligence was any act of plaintiff helping to produce the damages, and that he might re- cover if he did nothing wrong, was erroneous, as omitting element of want of ordinary care. Harnden v. Miller, 175 N. W. 891, 145 Minn. 483. Where plaintiff was injured by the use of pads purchased as a cure for rupture, because of injurious sub- stances contained therein, an instrue- § 143 INSTRUCTIONS TO JURIES 288 from their consideration a material issue raised by the pleading tion attempting to cover the whole case, but omitting the elements that the pads contained injurious ingredi- entsi which caused plaintiffs injiu- ries, and that defendant knew or should have known the character of the pads by the exercise of ordinary care, was erroneous, and could not be cured by any subsequent instruction. Harmon v. Plapao Laboratories (Mo. App.) 218 S. W. 701. Omission of issue of proximate cause. In an action against a city for injuries occasioned by fall on defective walk, a requested instruc- tion stating that plaintiff should re- cover if the work was defective, etc., was properly reftused, where it did not embody the rule relating to prox- imate causes. Kansier v. City of Bill- ings, 184 P. 630, 56 Mont. 250. 2 Ala. Southern Ry." Ck). v. Stol- lenwerck, 52 So. 204, 166 Ala. 556; Biriningham Ry., Light & Power Co. V. Williams, 48 So. 93, 158 A)a. 381; Anniston Electric & Gas Co. v. Elwell, 42 So. 45, 144 Ala. 317. Ark. St. Louis, I. M. & S. Ry. Go. V. Aiken, 140 S. W. 698, 100 Ark. 437 ; A. L. Clark Lumber Co. v. St. Coner, 133 S. W. 1132, 97 Ark. 358. Cal. Weik v. Southern Pac. Co., 132 P. 775, 21 Cal. App. 711 ; Roberts V. Sierra R. Co. of California, 111 P. 519, 14 Cal. App. 180, rehearing de- nied (Sup.) Ill P. 527, 14 Gal. App. 180. Colo. Coors V. Brock, 125 P. 599, 22 Colo. App. 470. Conn. Church v. Spicer," 83 A. 1115, 85 Conn. 579. Fla. Seaboard Air Line Ry. v. Smith, 43 So. 235, 53 Fla. 375. Idaho. Card v. Thompson, 123 P. 497. 21 Idaho, 485. 111. Cummins v. Sanitary Dist. of Chicago, 185 111. App. '639 ; Swanson V. Chicago City Ry. Co., 148 111. App. 135, judgment affirmed 90 N. E. 210, 242 111. 388. Ind. Vandalia R. Co. v. Holland, 108 N. B. 580, 1S3 Ind. 438 ; Chicago, I. & L. Ry. Co. V. Pritchard, 81 N. E. 78, 168 Ind. 398, 9 L. R. A. (N. S.) *57, denying rehearing 79 N. E. 508, 168 Ind. 398, 9 L. R. A. (N. S.) 857. Iowa. Carpenter v. Campbell Au- tomobile Co., 140 N. W. 225, 159 Iowa. 52. Kan. Jones v. Joplin & P. R. Co., 137 P. 796, 91 Kan. 282. Ky. Soiuth Covington & C. St. Ry. Co. V. Hardy, 153 S. W. 474, 152 Ky. 374. 44 L. R. A. (N. S.) 32. Md. Shoop V. Fidelity & Deposit Co. of Maryland, 91 A. 753. 124 Md. 130, Ann. Cas. 1916D. 954; Balti- more & O. R. Co. V. Wilson, 83 A. 248, 117 Md. 198 : McCarthy v. Clarke, 81 A. 12, 115 Md. 454. Mass. Monjeau v. Metropolitan Life Ins. Co., 94 N. E. 302. 208 Mass. 1. Mich. Piowaty v. Sheldon, 132 N. W. 517, 167 Mich. 218. Ann. Cas. 1913A, 610; Lamed v Vanderlinde„ 131 N. W. 165, 165 Mich. 464 ; Muir v. Kalamazoo Corset Co., 119 N. W. 589, 155 Mich. 441 ; Logan v. Lake Shore & M. S. R. Co., 112 N. W. 506, 148 Mich. 603. Minn. Campbell v. tKiluth & N. E. R. Co., 127 N. W. 4iS, 111 Minn. 410. Mo. Aronson v. Ricker, 172 S. W. 641, 185 Mo. App. 528; St. Louis Maple & Oak Flooring Co. v. Knost, 128 S. W. 532, 148 Mo. App. 563. N. M. Brobst v. El Paso & S. W. Co.. 145 P. 258, 19 N. M. 609. N. Y. Kimball v. TJppercu (Sup.) 129 N. T. S. 33. N. C. Alford V. Moore, 77 S. E. 343, 161 1^. O. 382 ; Harmon v. Fergu- son Contracting Co., 74 S: E. 632, 159 N. C. 22. Or. Cerrano v. Portland Ry., Light & Power Co., 126 P. 37, 62 Or. 421. R. I. Clark v. New York, N. H. & H. R. Co., 87 4.. 206, 35 R. I. 479. S. C. Kennedy v. Kennedy, 68 S. E. 664, 86 S. C. 483 ; Napier v. Math- eson, 68 S. E. 673, 86 S. C. 428 ; Lang- ston V. Cothran, 58 S. E. 956, 78 S. C. 23. ' Tex. Missouri, K. & T. R. Co. ot Texas v. Middleton (Civ. App.) 172 S. W. 1114; Dallas Consol. Electric St. Ry. Co. V. Kelley (Civ. App.) J 42 S. W. 1005 ; St. Louis Southwestern Ry. (Jo. of Texas v. McCaufey (Civ. App.) 134 S. W. 798; Keahey v. Bryant (Civ. 289 APPLICABILITY TO PLEADINGS AND EVIDENCE §144 and evidence.* The above rule frequently has been applied to in- structions purporting to cover the whole case, and directing a verdict for one party or the other, if certain facts are found,® un- less sudi theory or defense omitted is included in other qualifying instructions,* and in some jurisdictions, as is shown in another place," such an omission cannot be cured by other instructions. § 144. Ignoring evidence Instructions should cover the whole case and take in all the material evidence.* Instructions which ignore evidence in the App.) 134 S. W. 409 ; Gulf & I. Ry. Co. of Texas v. Campbell (Civ. App.) 108 S. W. 972; Western Union Tel- egraph Co. V. Landry (Civ. App.) 108 S. W. 461, judgment reversed Landry V. Western Union Telegraph Co., 113 g. W. 10, 102 Tex. 67. Vt. Douglass & Varnum v. Village of Morrisville, 93 A. 810, 89 Vt. 393 ; Losasso V. Jones Bros. Co., 93 A. 266, 88 Vt. 526. Va. Norfolk Southern R. Co. v. Crocker, 84 S. B. 681, 117 Va. 327; J. B. King & Co. V. C. W. Hancock & Sons, 77 S. B. 510, 114 Va. 596. Wash. Tooker v. Perkins, 150 P. 1138, 86 Wash. 567. W. Va. Griffith v. American Coal Po., 84 S. E. 621, 75 W. Va. 686, L. R. A. 1915F, 803; American Canning Co. V. Flat Top Grocery Co., 70 S. B. 756, 68 W. Va. 698. * O'Brien v. Birmingham By., Light & Power Co., 72 So. '343, 197 Ala. 97 ; Oil- Well Supply Co. v. West HuntsvlUe Cotton Mills Co., 73 So. 899, 198 Ala. 501. 5 Ark. Des Arc Oil Mill v. Mc- Leod, 206 S. W. 655, 137 Ark. 615. 111. Gibson v. LafCerty, 180 111. App. 629; Christensen v. Oscar Dan- iels Co., 170 111. App. 59; Granne- mann v. Meyer, 169 111. App. 291; Martini v. Donk Bros. Coal & Coke Co., 169 111. App. 139; St. John V. Illinois Cent. R. Co., 168 111. App. 599 ; Baker v. Taylorville Ry., Light, Heat & Power Co., 164 111. App. 232 ; Hill V. Dougherty, 161 111. App. 553; Geary v. City of Chicago, 161 111. App. 461; Cole v. City of East St. Louis 158 111. App. 494 ; Plopper v. St. Louis & N. E. By. Co., 158 111. App. 196; Spenler v. Turley, 158 111. App. 146; ItTST.TO Jtjbies— 19 Downs V. Michigan Commercial Ins. Co., 157 111. App. 32; Voudrie v. Southern Ry. Co., 155 111. App. 279. Ind. Goldsmith v. First Nat. Bank, 96 N. E. 503, 50 Ind. App. 11. Mo. Stofer v. Harvey (App.) 204 S. W. 587; Kelley v. City of St. Jos- eph, 156 S. W. 804, 170 Mo. App. 358 ; Beggs V. Shelton, 155 S. W. 885, 173 Mo. App. 127. > Mo. Johnson v. Stewart & Hay Bldg. Co., 153 S. W. 511, 171 Mo. App. 543. Or. Buhl Malleable Co. v. Cron- an. 59 Or. 242, 117 P. 317. TJtali. Morgan v. Child, Cole & Co., 155 P. 451, 47 Utah, 417. Va. E. I. D.U Pont de Nemours & Co. V. Hipp, 96 S. E. 280, 123 Va. 49. W. Va. Wiggin v. Marsh Lumber Co., 87 S. E. 194, 77 W. Va. 7. Indading theory of opposite party. Instruction purporting to cover whole case must be framed so as not to exclude theory raised by evidence of adversary party, but it is not required to include such theory. Lawbaugh v. McDonald Mining Co. (Mo. App.) 202 S. W. 617. 8 Carroll v. People's Ry. Co., 60 Mo. App. 465; Carder v. Primm, 60 Mo. App. 423; Bvers v. Shumaker, 57 Mo. App. 454; Hayner v. Chur- chill, 29 Mo. App. 676; Miniek v. Gring, 1 Pa. Super. Ct. 484; Jones v. Rex (Tex. Civ. App.) 31 S. W. 1077. TLifschitz V. City of Chicago, 150 111. Apn. 201. 8 U. S. Greenleaf v. Birth, 6 Pet. 292. 9 L. Ed. 132. Ala. Elliott V. Howison, 40 So. 1018, 146 Ala. 568 ; Central of Georg- la Ry. Co. v. Larkins, 37 So. 660, 142 Ala. 375; Austin v. Hteironymus, 23 §.M4 INSTRUCTIONS TO JURIES 290 case are properly refused," and instructions which single out par- So. 660, 117 Ala. 620 ; Highland Ave. & B. R. Co. V. Sampson, 112 Ala. 425, 20 So. 566; Scarborough v. Black- man, lOS Ala. 656, 18 So. 735; Grlel V. Lomax, 94 Ala. 641, 10 So. 232. Ga. Wylly v. Gazan, 69 6a. 506. 111. People V. Gardt, 101 N. E. 687, 258 111. 468, affirming judgment 175 111. App. 80; George E. LToyd & Co. V. Matthews, 119 111. App. 546, affirm- ed George E. Lloyd & Co. v. Matthews & Rice, 79 N. E. 172, 223 111. 477, 7 L. R. A. (N. S.) 376, 114 Am. St. Rep. 346 ; Geringer v. Novak, 117 111. App. 160; Chicago Hydraulic Press Brick Co. V. Campbell, 116 111. App. 322; Felver v. .Tudd, 81 111. App. 529. Ind. Roots v. Tyner, 10 Ind. 87. Md. Miller v. Mantik,.81 A. 797, 116 Md. 279 ; Cover v. Myers, 75 Md. 406, 23 A. 850, 32 Am. St. Rep. 394 ; Thomas v. Sternheimer, 29 Md. 268; Cook V. Carr, 20 Md. 403. Mass. Tashjian v. Worcester Con- !sol. St. R. Co., 58 N. E. 281, 177 Mass. 75 ; Dolphin v. Plumley, 56 N. E. 281, 175 Mass. 304; Graves v. Dill, 150 Mass. . 74, 34 N. E. 336 ; Towne v. Fiske, 127 Mass. 125, 34 Am. Rep. 353. Mich. Ludlow v. Pearl's Estate, 55 Mich. 312, 21 N. W. 815. Mo. Norton v. Kowazek (Sup.) 193 S. W. 556 ; Edger v. Kupper, 85 S. W. 949, 110 Mo. App. 280 ; Deitring v. St. Louis Transit Co., 85 S. W. 140, 109 Mo. App. 524; Maxwell v. Han- nibal & St. J. R. Co., 85 Mo. 95 ; Rays- don V. Trumbo, 52 Mo. 35 ; Ellis v. McPike, 50 Mo. 574; Fitzgerald v. Hayward, 50 Mo. 516; First Nat. Bank v, Currie, 44 Mo. 91 ; Chappell V. Allen, 38 Mo. 213; Brownlow v. Woolard, 66 Mo. App. 636 ; Brown v. McCormick, 23 Mo. App. 181 ; Barnes V. Fisher, 9 Mo. App. 574, memoran- dojm. N. J. Blackmore v. Ellis, 57 A. 1047, 70 N. J. Law, 264. N. Y. Ward V. Forrest, 20 How. Prac. 465 ; ntzgerald v. Long Island R. Co., 50 Hun, 605, 3 N. Y. Supp. 230, judgment affirmed 22 N. E. 1133, 117 N. y. 6.53. N. C. Morse & Rodgers v. Schultz, 72 S. E. 218, 156 N. C. 165; Newby V. Edwards, 68 S. E. 1062, 153 N. C. 110. Tenn. James v. Drake, 35 Tenn. (3 Sneed) 340. Tex. Panhandle & S. F. Ry. Co. v. Bell (Civ. App.) 189 S. W. 1097; De Rossett V. State, 168 S. W. 531, 74 Tex. Cr. R. 235; Gulf, C. & S. F, Ry. Co. V. Warner, 54 S. W. 1064, 22- Tex. Civ. App. 167 ; Jacobs v. Criim, 62 Tex. 401. Va. Vaughan Mach. Co. v. Stanton Tanning Co., 56 S. E. 140, 106 Va. 445 ; Haney v. Breeden, 42 S. E. 916, 100 Va. 781 ; Brown v. Rice's Adm'r, 76 Va. 629. W. Va. Johnson v. B*nk, 55 S. E. 394, 60 W. Va. 320, 9 Ann. Cas. 893 ; Robinson v. Lowe, 40 S. E. 454, 50 W. Va. 75. Instructions not erroneous within rule. It is not error for the court, in commenting on the evidence, to state that the evidence on a sub- ject rested "mainly" on the testimo- ny of certain persons, 'without refer- ring to a certain person, whose testi- mony related to a subordinate mat- ter, which was conceded. McQuillan v. Willimantie Electric Light Co., 40 A. 928, 70 Conn. 715. 9 U.S. Grand Trunk Ry. Co. of Canada v. Ives, 144 U. S. 408, 12 Sup* Ct. 679, 36 L. Ed. 485 ; (C. C. A. Kan.) Manchester Mill & Elevator Co. v. Strong, 231 F. 876, 146 O. C. A. 72; (C. C. A, W. Va.) Wheeling' Terminal Ry. Co. V. Russell, 209 F. 795, 126 C. C. A. 519. Ala. Shelby Iron Co. v. Bean, 82 So. 92, 203 Ala. 78; Meyrovitz v. Levy, 63 So. 963, 184 Ala. 293 ; Pratt- ville Cotton Mills Co. v. McKinney, 59 So. 498, 178 Ala. 554; Hudson Ice & Machine Works v. Bland & Cham- bers, 52 So. 445, 167 Ala. 391; Gulsby V. Louisville & N. R. Co., 52 So. 392, 167 Ala. 122 ; Alabama Steel & Wire Co. V. Thompson, 52 So. 75, 166 Ala. 460; R. D. Bymett Cigar Co. v. Art Wall Paper Co., 51 So. 263, 164 Ala. 547; Anniston Lime & Coal Co. v. Lewis, 107 Ala. 535, 18 So. 326; Up- son V. Ralford, 29 Ala. 188 ; Reese v. Beck, 24 Ala. 651. Cal. Matteson v. Southern Pac. Co., 92 P. 101, 6 Cal. App. 318. Colo. Stratton Cripple Creek Min- 291 APPLICABILITY TO PLEADINGS AND EVIDENCE §144 ticular facts bearing on a point, and ignore other facts having ing & Development Co. v. Ellison, 94 P. 303, 42 Colo. 498. Conn. Harris v. City of Ansonia, 47 A. 672, 73 Conn. 359. Ga. Johnson v. Kinsey, 7 Ga. 428. 111. Concord Apartment House Co. V. O'Brien, 81 N. B. 1038, 228 111. 360; Chicago Union Traction Co- v. Er- trachter, 130 111. App. 602, judgment affirmed (1907) 81 N. E. 816, 228 111. 114 ; Swift & Co. V. O'Brien, 127 111. App. 26; Phenix Ins. Co. v. Woland, 48 111. App. 535. Ind. Kelly Atkinson Const. Co. v. Munson, 101 N. E. 510, 53 Ind. App. 619 ; Baltimore & O. S. W. R. Co. v. Walker, 84 N. E. 780, 41 Ind. App. 588 ; Todd v. Danner, 46 N. E. 829, 17 Ind. App. 368. Me. Hunter v. Randall, 69 Me. 183. Mass. American Tubeworks v. Tucker, 70 N. B. 59, 185 Mass. 236; Lufkin V. Lufkin, 182 Mass. 476, 65 N. E. 840, dismissed 192 U. S. 601, 24 S. Ct. 849, 48 U Ed. 583 ; Murphy v. Boston & A. E. Co., 133 Mass. 121; Bugbee v. Kendricken, 132 Mass. 349 ; Delaney v. Hall, 130 Mass. 524; Green V. Boston & Tj. R. Co., 128 Mass. 221, .S5 Am. Rep. 370 ; Tatterson v. Suffolk Mfg. Co., 106 Mass. 56. Mo. Barr & Martin v. Johnson, 155 S. W. 459, 170 Mo. App. 394; Lemmons v. Robertson, 148 S. W. 189, 164 Mo. App. 85 ; liucks v. Northwest- ern Sav. Bank, 128 S. W. 19, 148 Mo. App. 376; Sailer v. Friedman Bros. Shoe Co., 109 S. W. 794, 130 Mo. App. 712 ; Cobb v. HoUoway, 108 S. W. 109, 129 Mo. App. 212; Gibler v. Quincy, O. & K. C. R. Co., 107 S. W. 1021, 129 Mo. App. 93; Carder v. Primm, 60 Mo. App. 423 ; Jones v. Jones, 57 Mo. 138 ; Anderson v. Kincheloe, 30 Mo. 520; Fine v. St. Louis Public Schools, 30 Mo. 166. Neb. Atchison & N. R. R. v. Jones, 9 Neb. 67, 2 N. W. 363. N. y. Stevens v. Gilbert (Sup.) 120 N. T. S. 114. Or. Pfeiffer v. Oregon-Washington R. & Nav. Co., 144 P. 762, 74 Or. 307. Pa. Hall V. Vanderpool, 156 Pa. 152; 26 A. 1069; Gratz v. Beates, 45 Pa. (9 Wright) 495 ; Nieman v. Ward, 1 Watts & S. 68. R. I. Tucker v. Rhode Island Co., 69 A. 850. Tex. Southern Traction Co. v. Re- gan (Giv. App.) 199 S. W. 1135 ; Haw- kins V. Western Nat. Bank of Here- ford (Civ. App.) 146 S. W. 1191; Ft. Worth & R. G. Ry. Co. v. Bailey (Civ. App.) 136 S. W. 822; Cleburne Elec- tric & Gas Co. v. McCoy (Civ. App.) 128 S. W. 457; Western Union Tele- graph Co. V. Rabon, 127 S. W. 580, 60 Tex. Civ. App. 88; Gulf, C. & S. F. Ry. Co. V. Bagby (Civ. App.) 127 S. W. 254 ; Wade v. Galveston, H. & S. A. Ry. Co. (Civ. App.) 110 S. W. 84; Galveston, H. & S. A. R. Co. v. Riggs, 109 S. W. 864, 101 Tex. 522, affirming judgment (Civ. App.) 107 S. W. 589; Cowans v. Ft. Worth & D. C. Ry. Co., 109 S. W. 403, 49 Tex. Civ. App. 463 ; St. Louis, I. M. & S. Ry. Co. v. Bos- hear (Civ. App.) 108 S. W. 1032, judg- ment affirmed 113 S. W. 6, 102 Tex. 76 ; Orient Ins. Co. v. Wingfield, 108 S. W. 788, 49 Tex. Civ. App. 202; St. Louis Southwestern Ry. Co. of Texas V. Thompson (Civ. App.) 108 S. W. 453, judgment reversed St. Louis S. W. Ry. Co. of Texas v. Thompson, 113 S. W. 144, 102 Tex. 89, 19 Ann. Cas. 1250; International & G. N. R'. Co. v. Kuehn, 2 Tex. Civ. App. 210, 21 S. W. 58. Va. Shiveley's Adm'r v. Norfolk & W. Ry. Co., 99 S. E. 650, 125 Va. 384 ; City of Richmond v. Gentry, 68 S. B. 274, 111 Va. 160; Life Ins. Co. of Virginia v. Hairston, 62 S. E. 1057, 108 Va. 832 ; Douglas Land Co. v. T. W. Thayer Co., 58 S. E. 1101, 107 Va. 292. W. Va, Diddle v. Continental Cas- ualty Co., 63 S. E. 962, 65 W. Va. 170, 22 L. B. A. (N. S.) 779 ; Parkersburg Nat. Bank v. Hannaman, 60 S. B. 242, 63 W. Va. 358; Delmar Oil Co. v. Bartlett, 59 S. B. 634, 62 W. Va. 700. Wyo. Mutual Life Ins. Co. v. Summers, 120 P. 185, 19 Wyo. 441. Instrnctions held improper with- in rule. In an action by the second purchasers of a soda fountain from the company which had leased or sold it conditionally to one who de- faulted in the payment of installment notes and assigned for creditors, brought against the assignee, defend- 144 INSTRUCTIONS TO JURIES 292 some tendency to resolve the disputed issue are erroneous, as cal- culated to mislead the jury.^** Thus, where there is documentary evidence in the case, it is error to instruct that the evidence is what the witnesses swear before the jury on the stand,^^ and an instruction which directs a finding for either the plaintiff or the defendant must cover all the material facts which the evidence proves or tends to prove. ^^ An instruction in a criminal case, w'hich ignores a part of the evidence bearing on the issue sought to be presented to the jury by the instruction, is properly refused, and should not be given. ^* ant's requested ruling that the rights of the parties were to be determined solely by the contract contained in the lease (or conditional sale) and lien notes was properly refused, as the rights of the parties were vitally affected by facts occurring subsequent to the execution of the lease and notes. Treeful v. Mills, 125 N. B. 183, 234 Mass. 141. 10 U. S. (C. C. A. Pa.) Weiss v. Bethlehem Iron Oo., 88 F. 23, 31 C. C. A. 363. Ala. Mobile Light & R. Co. v. Walsh, 40 So. 560, 146 Ala. 295; Louisville & N. R. Co. v. Webb, 97 Ala. 308, 12 So. 374; Jordan v. Pic- kett, 78 Ala. 331. Cal. Berliner v. Travelers' Ins. Co., 53 P. 922, 121 Cal. 451. Fla. Florida Jly. & Navigation Co. V. Webster, 25 Fla. 394, 5 So. 714. Ga. Wright v. Central R. & Bank- ing Co., 16 Ga. 38. 111. Town of Evans v., Dickey, 117 111. 291, 7 N. E. 263 ; Crain v. First Nat. Bank, 114 111. 516, 2 N. E. 486; Pennsylvania Co. v. Stoelke, 104 111. 201; Evans v. George, 80 111. 51; Pittsburgh, C, C. & St. L. R. Co. v. Dahlin, 67 111. App. 99 ; Kankakee & S. R. Co. v. Horan, 22 111. App. 145 ; Blunt v. Ashurst, 14 111. App. (14 Bradw.) 385. Imd. Smith V. Hunt, 98 N. B. 841, 50 Ind. App. 592. Md. Robinson v. Silver, 87 A. 699, 120 Md. 41; Seaboard Air Line Ry. Co. V. Phillips, 70 A. 232, 108 Md. 285. ' Mass. Gardner v. Boston Elevated R. Co., 90 N. E. 534, 204 Mass. 213. Miss. Reed v. Yazoo & M. V. R. Co., 47 So. 670, 94 Miss. 639 ; Coloi'ed Knights of Pythias v. Tucker, 46 So. 51, 92 Miss. 501. Mo. Ellis V. Wagner, 24 Mo. App. 407; Maack v. Schneider, 57 Mo. App. 431. W. C. Currie v. Gilchrist, 61 S. E. 581, 147 N. C. 648. Pa. Young v. Merkel, 163 Pa. 513, 30 A. 196, 35 Wkly. Notes Cas. 30S; Parker v. Donaldson, 6 Watts & S. 132. Tex. Gulf, C. & S. P. Ry. Co. v. Shearer, 1 Tex. Civ. App. 343, 21 S. W. 133. 11 Bowden v. Achor, 95 Ga. 243, 22 S. E. 254 ; Byrd v. Byrd, 96 S. E. 10, 22 Ga. App. 354. 12 Darren v^ Mutual Ben. Life Ins. Co. (Cal. App.) 186 P. 620; Shaw v. City of Greensboro, 101 S. B. 27, 178 N. C. 426; Chesapeake & O. Ry. Co. v. Arrington, 101 S. E. 415, 126 Va. 194. , 13 Ala. Minor v. State, 74 So. 98, 15 Ala. App. 556; Herring v. State, 71 So. 974, 14 Ala. App. 93 ; Norman V. State, 69 So. 362, 13 Ala. App. 337 ; Campbell v. State, 69 So. 322, 13 Ala. App. 70; BuUington v. State, 69 So. 319, 13 Ala. App. 61; Harwell v. State, 68 So. 500,12 Ala. App. 265, certiorari denied 68 So. 1019, 192 Ala. 689; Howerton v. State, 67 So. 979, 191 Ala. 13; James v. State, 67 So. 773, 12 Ala. App. 16; Clayton v. State, 64 So. 76, 185 Ala. 13; Brooka V. State, 62 So. 569, 8 Ala. App. 277, judgment reversed 64 So. 295, 185 Ala. 1 ; McKinstry v. City of Tusca- loosa, 54 So. 629, 172 Ala. 344 ; Steele v. State, 52 So. 907, 168 Ala. 25; Payne v. State, 42 So. 988, 148 Ala. 609; Hanners v. State, 41 So. 973, 147 Ala. 27; Morris v. State, 41 So. 293 APPLICABILITY TO PLEADINGS AND EVIDENCE § 144 Thus instructions, directing an acquittal of the defendant, which are based upon certain evidence, and which ignore other evidence tending to show his guilt, are erroneous." So an instruction 274, 146 Ala. 66; Ferguson v. State, 37 So. 448, 141 Ala. 20; Stewart v. slate, 34 So. 818, 137 Ala. 33. Cal. People v. Liera, 149 P. 1004, 27 Cal. App. 346; People v. Smith, 110 P. 383, 13 Cal. App. 627 ; People , V. Hartman, 62 P. 823, 130 Cal. 487. D. C. Partridge v. United States, 39 App. D. C. 571, Ann. Cas. 1917D, 622. Fla. Mims v. State, 27 So. 865, 42 Fla. 199 ; Barker v. State, 24 So. 69, 40 Fla. 178. Ga. Rouse v. State, 71 S. E. 667, 136 Ga. 356. 111. People V. Tlelke, 102 N. E. 229, 259 111. 88 ; People v. Gardt, 175 111. App. 80, judgment aflSrmed 101 N. E. 687, 258 111. 468. Iowa. State V. Cameron, 158 N. W. 563, 177 Iowa, 379 ; State v. Kut- ledge, 113 N. W. 461, 135 Iowa, 581. Mass. Commonwealtli v. Turner, 112 N. E. 864, 224 MasS. 229; Com- monwealth V. Gavin, 148 Mass. 449, 18 N. E. 675, 19 N. E. 554 ; Common- wealth V. Este, 140 Mass. 279, 2 N. E. 769; Commonwealth v. Broadbeck, 124 Mass. 319; Bailey v. Bailey, 97 Mass. 373. Mich. Peoplfe V. Leonzo, 147 N. W. 543, 181. Mich. 41. Miss. Cumberland v. State, 70 So. 695, 110 Miss. 521 ; Fore v. State, 23 So. 710, 75 Miss. 727. Okl. Gransden v. State, 158 P. 157, 12 Okl. Cr. K. 417. Or. State V. Deal, 70 P. 534, 43 Or. 17. Pa. Commonwealth v. Bonello, 96 A. 826, 251 Pa. 329; Commonwealth V. Meyers, 62 Pa. Super. Ct. 223. Tex. Reed V. State, 183 S. W. 1168, 79 Tex. Cr. R. 222; Caples v. State, 167 S. W. 730, 74 Tex. Cr. E. 127; Quails V. State, 165 S. W. 202, 73 Tex. Cr. R. 212; McKnight v. State, 156 S. W. 1188, 70 Tex. Cr. R. 470; Blocker v. State, 135 S. W. 130, 61 Tex. Cr. R. 413 ; Lemons v. State, 128 S. W. 416, 59 Tex. Cr. R. 299 ; Bennett v. State, 50 S. W. 946, 40 Tex. Cr. R. 445. Vt. State V. Bolton, 102 A. 489, 92 Vt. 157. W, Va. State y. Clark, 63 S. B. 402, 64, W. Va. 625; State v. Grove, 57 S. E. 296, 61 W. Va. 697. Ignoring proof of venue. A Charge which ignores proof of venue in a criminal prosecution is erroneous only when there has been no proof of, venue. Ragsdale v. State, 32 So. .674, 134 Ala. 24. Ignoring evidence of good char- acter. Instructions which state that evidence of good character of accused may raise a doubt in a doubtful case, and which call the jury's attention to the evidence of accused, and which direct the jury to give all the testi- mony of the defense careful con- sideration, and to determine there- from, in connection with the state's evidence, the truth, do not withdraw any evidence of accused from the jury, and dre not objectionable as withdrawing from consideration evi- dence of good character, which in a sense must be considered by itself to determine whether accused bore the good character claimed, and when proved, considered with the other facts established. State v. McGuire, 80 A. 761, 84 Conn. 470, 88 L. R. A. (N. S.) 1045. 11 Ala. Wiggins v. State, 78 So. 413, 16 Ala. App. 419; Brovra v. State, 72 So. 757, 15 Ala. App. 180, writ of certiorari denied 73 So. 999, 198 Ala. 689 ; Hauser v. State, 60 So. 549, 6 Ala. App. 31; Davis v. State, 51 So. 239, 165 Ala. 93; Morris v. State, 41 So. 274, 146 Ala. 66; Holmes V. State, 34 So. 180, 136 Ala. 80; Frost V. State, 27 So. 251, 124 Ala. 85 ; Suther v. State, 24 ,So. 43,- 118 Ala. 88 ; Hughes v. State, 23 So. 677, 117 Ala. 25. Cal. People v. Clark, 79 P. 434, 145 Cal. 727; People v. Luchetti, 51 P. 707, 119 Cal. 501. Conn. State V. Tobin, 96 A. 312, 90 Conn. 58. Fla. Kennard v. State; 28 So. 858, 42 Fla. 581. N. J. State V. Harrington, 94 A. 628, 87 N. J. Law, 713. N. Y. People V. Benham, 55 N. E. 11, 160 N. Y. 402. §145 INSTRUCTIONS TO JURIES 294 which asserts the right of the defendant to an acquittal if the state fails to prove his guilt beyond a reasonable doubt is im- proper, when incriminating circumstances are developed by the evidence for the defendant/® as is an instruction which ignores the testimony of the defendant in submitting the question of his guilt to the jury.^® An instruction, intended to present the theory of the prosecution as to the motive which induced the commis- sion of the crime charged, which is so framed as to exclude from the consideration of the jury the evidence of the accused tending , to show a different state of facts, is erroneous.^' § 145. Limitations of rule As is implied in the above statement of the general rule, it is not error to fail to submit to the jury an issue concerning which there is no evidence,^* or a matter about which -there is no dis- N. C. State v. Johnson, 90 S. E. 426, 172 N. C. 920. Tenn. Cooper v. State, 138 S. W. 826, 123 Tenn. 37. 15 Davis V. State, 62 Sb. 1027, 8 Ala. App. 147, certiorari denied EX parte Davis, 63 So. 1010, 184 Ala. 26 ; Williams v. State, 50 So. 59, 161 Ala. 52; Stallworth v. State, 46 So. 518, 155 Ala. 14; Wilson v. State, 37 So. 93, 140 Ala. 43 ; Sanders v. State, 32 So. 654, 134 Ala. 74; Johnson v. State, 31 So. 951, 133 Ala. 38. 16 r. S. Bird V. United States, 21 S. Ct. 403, 180 U. S. 356, 45 L. Ed. 570. Ala. Barker v. State, 28 So. 589, 126 Ala. 83. Ariz. Barrow v. Territory, 114 P. 975, 13 Ariz. 302. Ill, People V. Pezutto, 99 N. E. 677, 255 111. 583. Pa. Oommonvrealth v. Stovas, 45 Pa. Super. 'Ct. 43. Tex. Palmer v. State, 160 S. W. 349, 71 Tex. Cr. R. 335; Buckley v. State, 157 S. W. 765, 70 Tex. Cr. R. 550. Ignoring unsworn statement of the accTised. Where the statement of accused suggested no theory favor- able to him which was in conflict with, or in explanation of, the evi- dence, it was not reversible error to charge, without mentioning the state- ment, that in determining the guilt or innocence of accused the jury should look .to the "evidence." Burney v. State, 25 S. E. 911, 100 Ga. 65: A charge that the; issues are to be de- termined "by looking to the testimony of the ivitnesses that have been sworn in the case" Is not error, even though defendant has made a statement giv- ing his version of the transaction and denying his guilt ; but it is the better practice, in such a case, to authorize the jury to consider such statement. In connection with the evidence, and to give to It such force as they think it is entitled to receive. Sledge v. State, 26 S. E. 756, 99 Ga. 684. i' Bowles V. Commonwealth, 48 S. B. 527, 103 Va. 816. 18 17. S. Crosby v. Cuba R. Co. (C. C.) 158 F. 144. Oal. Valente v. Sierra Ry. Co., Ill P. 95, 158 Cal. 412. Ga. American Ins. Co. v. Bailey & Musgrove, 65 S. E. 160, 6 Ga. App. 424 ; Grimsley v. Singletary, 65 S. E. 92, 133 Ga. 56, 134 Am. St. Rep. 196. 111. Graham v. Mattoon City Ry. Co., 84 N. E. 1070, 234 111. 483, 14 Ann. Cas. 853, affirming judgment Mattoon City Ry. Co. v. Graham, 138 111. App. 70 ; Crain v. First Nat. Bank, 114 111. 516, 2 N. E. 486. Ind. City of Bloomington v. Wood- worth, 81 N. E. 611, 40 Ind. App. 373 ; Browning v. Hight, 78 Ind. 257. Iowa. Sieberts v. Spangler, 118 N. W. 292, 140 Iowa, 236; Willson v. 295 APPLICABILITY TO PLEADINGS AND EVIDENCE § 145 pute.^® As has been indicated elsewhere, the court cannot be re- quired to cover every phase of a case in a single instruction/" and an instruction cannot be regarded as erroneous, as ignoring issues, if such issues are adequately dealt with in other instruc- tions.^^ The rule that an instruction, stating the issues and directing a verdict for one party or the other in the event of a favorable finding for him on the issues, must state all the issues, does not apply to an instruction merely covering the measure of dam- ages.** An instruction based on a theory supported by evidence which would entitle the plaintiff to recover, regardless of some distinct and independent theory of the defendant, also supported by some evidence, is not erroneous as ignoring the defendant's theory,** and an instruction which does not conclude with a di- rection to the jury need not anticipate and negative every de- fense.** Only where an instruction assumes to set out all the elements essential to a recovery will the omission of any element necessary to a recovery condemn it.*^ The court need submit to the jury only enough issues to dispose of all the controverted questions and to give each party fair and full opportunity to present his case in every aspect.*^ An instruction that contributory negligence is a defense, and that the burden is on the defendant to establish it. Phelps, 86 Iowa, 735, 53 N. W. 115 ; v. Chicago Great Western E. Co., 174 McDermott v. Iowa Falls & S. O. Ry. N. W. 774, 187 Iowa, 904. Co., 47 N. W. 1037. ■ 21 Walrod v. Webster County, 81 Ky. Louisville & N. B. Co. v. N. W. 598, 110 Iowa, 349, 47 L. R. A. Greenwell's Adm'r, 160 S. W. 479, 155 480 ; Farmers' Cotton Oil Co. v. Ky. 799. Barnes (Tex. Civ. App.) 134 S. W. 369. Mo. Brinkman v. Gottenstroeter, 22 Stauffer v. Metropolitan St. Ry. 134 S. W. 584, 153 Mo. App. 351 ; Till Co., 147 S. W. 1032, 243 Mo. 305. V. St. Louis & S. F. R. Co., 101 S. W. 23 Given v. Diamond Shoe & Gar- 624, 124 Mo. App. 281. ment Co., 101 S. E. 153, 84 W. Va. 631. Neb. Wherry v. Pawnee County, Compare Palmer v. Magers, 102 S. 129 N. W. 1013, 88 Neb. 503. E. 100, 85 W. Va. 415. Tex. Bl'aekwell v. Hunnicutt, 69 24 Kulvie v. Bunsen Coal Co., 161 Tex. 273, 9 S. W. 317. 111. App. 617, Judgment affirmed 97 N. Vt, Mack V. Snider, 1 Aikens, 104. E. 688, 253 111. 386. Wash. Gabrielson v. Hague Box 25 public Utilities Co. v. Handorf, & Lumber Co., 104 P. 635, 55 Wash. 112 N. B. 775, 185 Ind. 254; Teii-e 342, 83 Am. St. Rep. 1032. Haute Traction & Light Co. v. Payne, 19 Montgomery v. Hammond Pack- 89 N. E. 413, 45 Ind. App. 132 ; Chick- ing Co. (Mo. App.) 217 S. W. 867. asaw Compress Co. v. Bow, 149 P. 20 American Hardwood Lumber Co. 1166, 47 Okl. 576. V. Milliken-James Hardwood Lumber =« Barefoot v. Lee, 83 S. E. 247, 168 Co., 216 S. W. 23, 140 Ark. 544; Black N. C. 89. §145 INSTRUCTIONS TO JURIES 296 is not improper, as taking from the defendant other defenses than that of contributory negligence.^' The court may/* and should,^' refuse to submit immaterial is- sues to the jury, or issues raised by counts of the pleadings which have been dismissed, stricken out, or otherwise disposed of by rulings of the court during the progress of the trial. ^^ The court should eliminate issues which have been abandoned,*^ and may properly refuse instructions on such issues.** 2 7 Bradford v. City of St. Joseph (Mo. App.) 214 S. W. 281. 2 8 111. Wettrick v. Martin, 164 111. App. 273; Stern v. Bradner Smith & Co., 127 111. App. 640,' judgment af- firmed 80 N. B. 307, 225 111. 430, 116 Am. St. Rep. 151. Kan. McKnight v. Strasburger Bldg. Co., 150 P. 542, 96 Kan. 118. Ky. Ross V. Commonwealth, 59 S. W. 28, 24 Ky. Law Rep. 1621. minn. Matz v. Martinson, 149 N, W. 370, 127 Minn. 262, L. R. A. 1915B, 1121. N. Y, Hesse v. Gude Bros.-Kieffier Co. (Sup.) 170 N. T. S. 211. Wis. Gist V. Johnson-Carey Co.. 147 N. W. 1079, 158 Wis. 188, Ann. Cas. 1916E, 460. 2 9 Cowie V. Kinser, 188 111. App. 143, judgment aSirmed Kinser v. Cowie, 85 N. E. 628, 235 111. 383, 126 Am. St. Rep. 221 ; Penney v. Johnston, 142 111. App. 634; Scherrer v. City of Seattle, 100 P. 144, 52 Wash. 4. 30 Hahn v. Lumpa, 188 N. W. 492, 158 Iowa, 560; Wells v. Kavanagh, 74 Iowa, 372, 87 N. W. 780; Fry v. Leslie, 87 Va. 269, 12 S. B. 671. See, also, supra, § 126. 31 Heller v. Chicago & G. T. Ry. Co., 109 Mich. 53, 66 N. W. 667, 63 Am. St. Rep. 541. See, also, supra, § 126. 32 Ga. Seaboard Air Line Ry. v. Gnann & De Loach, 82 S. B. 1066, 142 Ga. 381; Crawford v. Georgia Pac. Ry. Co., 86 Ga. 5, 12 S. E. 176. III. Kellogg V. Boyden, 126 111. 378, 18 N. E. 770. Ind. Crum v. Yundt, 12 Ind. App. 308, 40 N. E. 79. Iowa. Strueblng v. Stevenson, 105 N. W. 341, 129 Iowa, 25. Mo. Leabo v. Goode, 67 Mo. 126. Tex. Wright v. Hardie (Civ. App.) 30 S. W. 675. Issues not deemed abandoned ivithin rule. Where, in an action for agent's compensation, the answer, independent of a counterclaim, alleg- ed that plaintiff wrongfully procured the issuance to himself of a large amount of the stock of his employer; that he made false entries in the books of the company and appropriated its moneys to his own use, the fact that during the trial defendant dismissed a counterclaim for damages based on the same facts did not justify the court in refusing to submit to the jury evidence sustaining the defense of unfaithfulness. Steele v. Crabtree, 106 N. W. 753, 180 Iowa, 313. 297 CREDIBILITY OF WITNESSES CHAPTER XI NECESSITY, PROPRIETT, AND SUFFIOIBNOT OF INSTRUCTIONS ON CREDIBILITY OF WITNESSES A. In General § 146. Credibility in general. 147. Impeachment of witnesses in general. 148. Refusal of Instructions because of other instructions given. 149. Sufl5ciency of evidence to sustain instructions on credibility of wit- nesses. 150. Right or duty of jury to believe witnesses. 151. Right or duty of jury to disbelieve witnesses. 152. Duty of jury not to act arbitrarily. B. PABTICtTLAB MATTERS TO BE CONSIDEEED IN PASSING ON CEBDIBILITY OF Witnesses 193. Necessity, propriety, and sufficiency in general. 154. Character and conduct of witness. 155. Youth of witness. 156. Corroboration of witness against whom impeaching testimony has been given. 0. Testimony Not Given in Open Couet ob Not Given undhe Sanction OF Oath 1-57. Absent witnesses. 158. Dying declarations. D. Interest ob Bias of Witness 159. Right of jury to consider interest or bias of witness and effect of such matters. " 160. Complaining witness in criminal prosecution. 161. Police officers, detectives, and informers. 162. Wife or relatives of accused. 163. C indictee cf defendant in criminal case. E. Credibility of Party Testifying as Witness 164. Singling out party for comment. 165. Ignoring interest of party. F. Ceedibility of Testimony of Accttsbd 166. Necessity of instructions. 167. Propriety and sufficiency of instructions. 168. Reference to interest of the defendant in the event of the trial. 169. Effect of impeaching testimony. 170. Effect of false testimony. 171. Unsworn statement of defendant. G. Testimony of Accomplices 172. Instructions as to who are accomplices. 173. Necessity and propriety of instructions on reliability of accomplice testimony. 174. Necessity and sufficiency of evidence of complicity in crime to author- ize or require instructions on accomplice testimony. § 146 INSTRUCTIONS TO JURIES 298 175. SuflSciency of instructions on right to convict upon accomplice testi- mony. 176. Sufficiency of insti-uctions on corroboration of accomplice. 177. Corroboration ot one accomplice by another. H. Instructions on Effect op False Testimony 175. Necessity and propriety of instructions. 179. Sufficiency of instructions. 180. Corroboration of part of testimony not shown to be false. I. Effect of making Contradictobt Statements 181. Necessity of Instructions. 182. Propriety and sufficiency of instructions. J. Singling out Paeti'culab Witnessiss oe Classes of Witnesses foe Com- ment AS TO OeEDIBILITT 183. Rule that such instructions are improper. 184. Rule that such instructions may be given. Instructions as invading province of jury, see ante, §§ 6-27. A. In General, § 146. Credibility in general As we have seen in a preceding chapter, the credibility of wit- nesses is almost invariably for the jury, but the court may lay down general rules for testing such credibility, or as to the right to believe or disbelieve a witness ; the giving of such instructions resting largely in the discretion of the trial court.^ Where there is a conflict in the evidence upon a material point,* which is not rea- sonably attributable to mistake, inadvertence, or lapse of mem- ory,^ it will be proper to give such an instruction. In some juris- dictions, on request, such an instruction should be given.* The general rule is that a party desiring instructions as to the credi- bility or impeachment of witnesses should request them.^ 1 Cullum V. Oolvyell, 83 A. 695, 85 * Grant v. State, 50 S. E. 946, 122 Conn. 459: People v. Dumas, 125 N. 6a. 740. W. 766, 1& Mich. 45 ; Davidson v. s G-a, Williams v. State (App.) 102 Fllntom, 190 S. W. 972, 195 Mo. App. S. E. 875 ; Carson v. State, 97 S. E. 75 ; White v. Lowenberg, 55 Mo. App. 202, 22 Ga. App. 743 ; Brown v. State, 69. 97 S. E. 69, 148 Ga. 509; Gibson v. 2 State V. Parmenter, 213 S. W. 439, State, 93 S. E. 48, 20 Ga. App. 73 ; 278 Mo. 532;- Deubler v. United Rys. Watklns v. State, 91 S. E. 284, 19 Ga. Co. of St. Louis, 187 S. W. 813, 195 App. 234 ; Seaboard Air Line Ry. v. Mo. App. 658. Barrow, 89 S. E. 383, 18 Ga. App. 261; ' 3 Robert v. Rialto Bldg. Co., 199 S. Winder v. State, 88 S. E. 1003, 18 Ga, W. 428, 198 Mo. App. 121 ; McDonald App. 67 ; Wyatt v. State, 88 S. E. V. Redemeyer, 198 S. W. 483, 197 Mo. 718, 18 Ga. App. 29 ; Giles v. Voiles App. 630; Weller v. Plapao Labora- 88 S. E. 207, 144 Ga. 853; White v. torlGS Incorporation, 191 S. W. 1056, State, 81 S. E. 440, 141 Ga. 526 ; Cen- 197 Mo. App. 47. tral of Georgia Ry. Co. v. McGulre, 73 299 CREDIBILITY OP WITNESSES §147 § 147. Impeachment of witnesses in general It is proper for the court to charge as to the effect of evidence introduced to impeach a witness,® and that it is for the jury to say how far the impeachment of any witness is successful,' and al- though, as a general rule, it is not incumbent on a trial judge, in 'the absence of a request therefor, to give an instruction as to the impeachment of witnesses,* a general charge laying down the rules for determining the credibility of witnesses being sufhcient,® the circumstances may be such as to make it error to fail to instruct upon the impeachment of witnesses, as well as upon the general subject of their credibility.^" Where there is no evidence tending to impeach any witness in any of the modes prescribed by law, a failure to charge on the S. E. 702, 10 Ga. App. 483; Childs v. Ponder, 43 S. E. 986, 117 Ga. 553; Freeman v. Coleman, 88 Ga. 421, 14 S. E. 551 ; Cole v. Byrd, 83 Ga. 207, 9 S. B. 613. Idaho. State V. Knudtson, 83 P. 226, 11 Idaho, 524. lU. Jolinson v. People, 140 111. 350, 29 N. E. 895. Ind. T. Parker v. United States, 43 S. W. 858, 1 Ind. T. 592. Iowa, Halley v. Tichenor, 94 N. W. 472, 120 Iowa, 164. Micli. Bartholomew v. Walsh, 157 N. W. 575,191 Mich. 252. Mo. State V. Thurman, 98 S. W. 819, 121 Mo. App. 374. Neb. Edwards v. State, 95 N. W. 1038, 69 Neb. 386, 5 Ann. Cas. 312; Kerr v. State, 88 N. W. 240, 63 Neb. 115. N. J. State V. Girone, 103 A. 803, 91 N. J. Law, 498. Va. Shenandoah Valley Loan & Trust Co. V. Murray, 91 S. E. 740, 120 Va. 563. Omission of iirord "willfully." A Charge that, If the jury believe that rlaintiff swore falsely in any one material fact, they might disregard his. entire testimony, is not erroneous because it pmits the word "willfully," where no request to supply the omis- sion is made. Lindheim v. Buys (Su- per. N. Y.) 11 Misc. Rep. 16, 31 N. Y. S. 870. 8 Florence v. State, 134 S. W. 689, 61 Tex. Cr. R. 238. 7 Pike V. State, 49 S. E. 680, 121 Ga. 604. 8 Ga. Western & A. R. Co. v. Holt, 95 S. E. 758, 22 Ga. App. 187; Mc- Donald V. State, 94 S. E. 262, 21 Ga. App. 125 ; Garrett v. State, 93 S. E. 232, 20 Ga. App. 749; Seaboard Air Line Ry. v. Barrow, 89 S. B. 383, 18 Ga. App. 261 ; Kelly v. State, 88 S. E. 822, 145 Ga. 210; Giles v. Voiles, 88 S. E. 207, 144 Ga. 853 ; Fite v. State, 84 S. E. 485, 16 Ga. App. 22; Smith v. State, 78 S. E. 685, 13 Ga. App. 32; McCrary v. State, 74 S. E. 536, 137 Ga. 784 ; Craig v. State, 70 S. E. 974, 9 Ga. App. 233 ; Jackson v. State, 70 S. E. 245, 135 Ga. 684; Perdue v. State, 69 S. B. 184, 135 Ga. 277 ; Hun- ter V. State, 65 S. E. 154, 133 Ga. 78; Rouse V. State, 58 S. E. 416, 2 Ga. App. 184; Csesar v. State, 57 S. E. 66, 127 Ga. 710; Hatcher v. State, 42 S. E. 1018, 116 Ga. 617; Louisville & N. R. Co. V. Thompson, 39 S. E. 483, 113 Ga. 983. Iowa. Connors v. Chingren, 82 N. W. 934, 111 Iowa, 437. Mont. State v. Willette, 127 P. 1013, 46 Mont. 326. Tex. American Telegraph & Tele- phone Co. v. Kersh, 66 S. W. 74, 27 Tex. Civ. App. 127 ; Harrell v. State, 45 S. W. 581, 39 Tex. Cr. R. 204; Thurmond v. State, 27 Tex. App. 347, 11 S. W. 451. 9 Givens v. State, 35 Tex. Cr. R. 563, 34 S. W. 626. 10 Smith v. State, 171 P. 341, 14 Okl. Cr. 348 ; Wolfe v. State, 25 Tex. App. 698, 9 S. W. 44. 147 INSTRUCTIONS TO JUEIES 300 law relating to the impeachment of witnesses is not error/^ and a mere direct contradiction of one witness by another will not ordinarily call for such an instruction.^* Where the court under- takes to state the methods by which a witness may be impeached, it should state all of such methods, so far as ■ authorized by the evidence,^* but failure to do so will not require a new trial, in' the absence of a request to charge as to the method of impeach- ment omitted.^* ' Whenever it is necessary to charge in regard to the effect of impeaching testimony, the jury should be told that such testi- mony is to be used for the purpose of affecting the credibility of the witnesses whose evidence is sought to be impeached.^^ An instruction that such testimony is to be considered for the sole purpose of enabling the jury to judge of the weight to be given to the testimony of the witness impeached is too restrictive.*® § 148. Refusal of instructions because of other instructions given Instructions with respect to the credibility of witnesses may properly be refused, where other instructions given sufficiently cover the ground.*' Thus, where the court has instructed that 11 Freeman v. State, 37 S. E. 172, 112 Ga. 48. 12 Kipper v. State, 77 S. W. 611, 45 Tex. Cr. E. 377. 13 Webt) V. State, 79 S. E. 1126, 140 Oa. 779 ; Brand v. Bagwell, 66 S. E. 935, 133 Ga. 750. Evidence impeaching vritness in more tban one way. An instruction on the subject of Impeaching witness- es, which refers only to one method of impeachment, is erroneous, when the evidence tends to show impeach- ment both by contradictory statement and by general character. Southern Cotton Oil Co. V. Skipper, 54 S. E. 110, 125 Ga. 368. Confining charge to methods of impeachment shown by the evi- dence. Where the only method by which a witness was sought to be im- peached was by disproving the facts testified to by him and by proof of previous contradictory statements, it was proper to confine the instructions on the subject of impeachment of witnesses to those two methods. Mc- Girt V. State, 54 S. E. 171, 125 Ga. 269. 14 Millen & S. W. R. Co. v. Allen, 61 S. E. 541, 130 Ga. 656. "Pratt V. State, 96 S. W. 8, 50 Tex. Cr. R. 227. 16 Elklns v. State, 87 S. W. 149, 48 Tex. Cr. R. 205; Dean v. State (Tex. Civ. App.) 77 S. "W. 808. 17 Upton V. Paxton, 72 Iowa, 295, 33 N. W. 773 ; Carroll v. Boston Ele- vated Ry. Co., 86 N. E. 793, 200 Mass. 527. Illustrations of instructions properly refused because of other instructions given. Where the jury have been instructed that their verdict should be determined by the evidence which would best satisfy them of the truth of the claims made by the respective parties, and in re- gard to the effect of the testimony of a witness who had made statements out of court contradictory to those made on the trial, it is not error to refuse to charge further in regard to the credibility of witnesses. Guther- less V. Ripley, 98 Iowa, 290, 67 N. W. 109. Instructions on mental capacity. Where the court charged the jury to consider the mental capacity of plain- tiff, and, if they should find him to be of a weak or unsound mind at time of testifying or shortly before. 301 CREDIBILITY OF WITNESSES § 148 the jury, in passing on the credibility of witnesses, may con- sider all the facts shown by the evidence, it is not error to refuse an instruction that they may consider particular facts bearing on the credibility of a party." This rule applies with regard to in- structions as to the effect of the interest of a witness,^* and ordi- narily, where the court has instructed in general terms that they may consider the interest which any witness has in the result of the suit, it need not instruct further as to the effect of the in- terest of a party."" B^ut, where the testimony of a party is largely contradicted by other witnesses, the court cannot properly refuse to instruct that he is an interested witness, and the jury are not bound to accept his testimony as true, though he i| uncontra- dicted or unimpeached, because it has instructed that in weighing his testimony the jury can consider his interest,*^ and a request- ed charge that in determining the credibility of a party his in- terest may be considered is not sufficiently contained in an in- struction that, if any witness has knowingly testified falsely, his entire testimony may be disregarded ; *" nor is such request cov- ered by a general instruction that the jury are the proper judges of the credibility of witnesses and the weight to be given to the testimony of each.** The refusal of instructions as to the effect of the giving of false testimony by a witness is proper, where other instructions have they could consider tliat fact, refusal v. Elliott, 74 N. B. 1035, 216 lU. 31, to charge that the jury could reject 1 L. E. A. (N. S.) 215, 108 Am. St. his testimony if they helieved he was Kep. 196, 3 Ann. Oas. 4§7. then, or a short time before, of weak is Beasley v. JefCerson Bank, 89 S. or unsound mind or of deficient under- W. 1040, 114 Mo. App. 406. standing, and that if they believed he ^^ Iowa. Allen v. Kirk, 81 Iowa, was laboring under a delusion that 658, 47 N. W. 906. the money was deposited by him in Kan. Allison v. Ahlers, 26 Kan. defendant's vault, verdict should be 582; Fanson v. Harris, 21 Kan. 734; for defendant, was not error. Mayer Central Branch Union Pac. E. Co. v. V. Brensinger, 54 N. B. 159, 180 lU. Holcomb, Id. 533; Same v. Young, 110, 72 Am. St. Rep. 196, affirming Id., 532 ; Kansas Pac. Ry. Co. v. Kun- judgment 74 111. App. 475. kel, 17 Kan. 145. Means of information. Where ^o Chicago City Ry. Co. v. Mager, the court charged, on defendant's be- 56 N. B. 1058, 185 111. 336, affirming half, that the jury, in determining the judgment 85 111. App. 524 ; Strasser v. credibility of the witnesses, may con- Goldberg, 98 N. W. 554, 120 Wis. 621. sider their means of information, it =1 Becker v. Woarms, 76 N. T. S. was not error for the court to refuse 438, 72 App. Div. 196. to charge that where witnesses were 22 Chicago & B. I. R. Co. v. Bur- otherwise equally credible, and their ridge, 71 N. B. 838, 211 111. 9, revers- testimony otherwise entitled to equal ing judgment 107 111. App. 23. weight, greater weight and credit ^^ Denver City Tramway Co. v. should be given to those whose means Norton (O. C. A. Colo.) 141 F. 599, 73 of information are superior. Christy O. 0. A. 1. § 149 INSTRUCTIONS TO JURIES 302 sufficiently presented the subject to the jury,** and a general in- struction, applicable to all the witnesses, as to the effect of false testimony, justifies the refusal of an instruction confined to the tes- timony of a party,*^ and it is held that, where the court has charged as to the effect of false testimony, it need not also charge as to the effect of making contradictory statements.*® § 149. Sufficiency of evidence to sustain instructions on credi- bility of witnesses An instruction on matters to be considered in passing upon the credibility of witnesses must be based upon the evidence in the case.*' This rule applies with respect to instructions as to the effect of the general bad character of a witness,** or the ef- fect of his good character,*^ or as to the effect of bias or preju- dice resulting from the fact that a witness is employed by a 2* West Chicago St. R. Co. v. Lies- erowitz, 64 N. E. 718, 197 111. 607, affirming judgment 99 111. App. 591; Burger v. Omaha & C. B. St. By. Co., 117 N. W. 35, 139 Iowa, 645, 130 Am. St. Rep. 343; Bernstein v. Smith, 10 Kan. 60. 2 5 City of Spring Valley v. Gavin, 54 N. E. 1035, 182 111. 232, affirming judgment 81 111. App. 456 ; Whitaker V. Engle, 69 N. W. 493, 111 Mich. 205. 26 Chicago City Ry. Co. v. Fenni- more, 64 N. E. 985, 199 111. 9, affirm- ing judgment 99 111. App. 174. 2 7 U, S. (C. C. A. Cal.) Diggs V. United States, 220 F. 545, 136 C. C. A. 147, certiorari granted Caminetti v. United States, 35 S. Ct. 939, 238 U. S. 636, 59 L. Ed. 1500 and judgment affirmed 37 S. Ct. 192, 242 U. S. 470, 61 L. Ed. 442, L. K. A. 1917F, 502, Ann. Cas. 1917B, 1168. Ala. Davis v. State, 66 So. 67, 188 Ala. 59; Conner v. State, 65 So. 309, 10 Ala. App. 206 ; Tennison v. State, 62 So. 780, 183 Ala. 1 ; Hicks v. State, 26 So. 337, 123 Ala. 15. Cal. People V. Blunkall, 161 P. 997, 31 Cal. App. 778; People v. Mc- Pherson, 91 P. 1098, 6 Cal. App. 266 ; People V. Ward, 66 P. 372, 134 Cal. 301. Ga, Gilstrap v. Leith, 102 S. B. 169, 24 Ga. App. 720; Devereaux v. State, 78 S. E. 849, 140 Ga. 225. 111. Johnson v. People, 64 N. E. 286, 197 111. 48. Ind. Colondro v. State, 125 N. E. 27, 188 Ind. 533. Kan. State v. Covington, 160 P. 1009. 99 Kan. 151. Micli. Bulen V. Granger, 63 Mich. 311, 29 N. W. 718. Miss. Layton v. State, 56 Miss. 791. Mo. State v. O'Kelley, 137 S. W. 333, 156 Mo. App. 406. N. Y. Lustig V. Nevy York, L. E. & W. R. Co., 65 Hun, 547, 20 N. Y. S. 477. Or. State v. Birchard, 59 P. 468, 35 Or. 484. Wyo. Jenkins v. State, 134 P. 260, 22 Wyo. 34, rehearing denied 135 P. 749, 22 Wyo. 34. ~ 28 Southern Ry. Co. v. O'Bryan, 45 S. E. 1000, 119 Ga. 147; City Banlj of Macon v. Kent, 57 Ga. 283. Integrity or lionesty of witness. A charge that the jury may consider the "integrity or honesty" of a wit- ness in determining the weight to be given to his testimony is proper, even where there is no other proof thereof than that furnished by the appear- ance, deportment, and testimony of the witness himself. Fisher v. State, 77 Ind. 42. 2 9 Helms V. State, 72 S. B. 246, 136 Ga. 799; Jenkins v. State, 58 S. E. 1063, 2 Ga. App. 626; Johnson v. State, 58 S. E. 684, 2 Ga. App. 405. 303 CREDIBILITY OF WITNESSES § 150 party,** or as to the effect of making contradictory statements,*^ or as to the effect of the corroboration of an impeached witness.**^ To sustain a charge that the jury may consider any feeling which a witness has towards a party, it is necessary that there. should be direct evidence as to such feeling.** Where the credibility of a particular witness is not assailed, it is proper to refuse an in- struction permitting the jury to consider certain matters in deter- mining his credibility,** or telling them what weight should be accorded to the testimony of a discredited witness.*® But an instruction that the jury will consider the character of the wit- nesses and their conduct on the stand, etc., is not objectionable as not based on evidence, where there is evidence contradicting the testimony of a witness,*® and a charge that the jury are to consider the testimony in the light of the characters of the wit- nesses, and their opportunity of knowing the .facts as to which they testified, is not reversible error, though there is no evidence in the case as to the character of witnesses; for such charge is no more likely to prejudice one party than another.*'' § 150. Right or duty of jury to believe witnesses Where it is not sought to impeach any witness by evidence in- troduced for that purpose, it is not error to instruct that the law presumes all witnesses honest until the contrary is shown,** and in some jurisdictions, where the evidence given on behalf of .one party tends to show that a witness for his adversary is guilty .of perjury, it is error to refuse to instruct as to. the presumption that such witness is innocent of such offense.** It is proper to charge that .the juiy may believe a witness, although he has been im- 3 Chicago "City Ky. Co. v. Eohe, si Nabors v. State, 25 So. 529, 120 318 111. App. 322; "West Chicago St. Ala. 323; Canley v. State, 92 Ala. 71, R. Co. V. Raftery, 85 111. App. 319; 9 So. 456. Illinois Cent. R. Co. v. Leggett, 69 32 Kelly v. State, 45 S. B. 413, 118 111! App. 347; St. Louis, A. & T. H. Ga. 329; Plummer v. State, 36 S. E. R. Co. V. Walker, 39 111. App. 388 ; St. ' 233. Ill Ga. 839. Louis, A. & T. H. R. Co. v. Huggins, 33 Mitchell v. State, 34 S. B. 576, 20 111. App. 639. 110 Ga. 272. The mere fact that, in an action 34 Schmidt v. First Nat. Bank, 50 P. against a railroad, the witnesses 733 xo Colo. App. 261. for defendant are mostly its em- 3*5 hqu ^ Floiirnoy, 54 Ala. 99. ploygs, does not warrant an instruc- g^ -^veu^ung ^ Bowden 161 S W tion authorizing the jmy, if they be- ' 252 Mo 647 ' " lieve that aliy witness testified under ,1 r^v. 4.4- iL r! -d • . /-. o, ,i. fear of losing the employment, or " ^^^f''^°fi%^l'%?''- ^- ^'''^'- with a desire of pleasing his employer, ^»"' °° ^^• °^ Y ^" i I .. r^ to consider such fact in determining " ^T^^ n^^^*; ?J?- J- ^^ohutta Talc the weight to be given his evidence. Co., 78 S. E. 905, 140 Ga. 245. Wastl V. Montana Union Ry. Co., 17 '» Stevenson v. Gunning's Bstate, Mont. 213, 42 P. 772. 64 Vt. 601, 25 A. 697. § 150 INSTRUCTIONS TO JUEIBS 304 peached, if he is corroborated by other witnesses,*" and an in- struction is erroneous which might lead the jury to think that they .cannot consider evidence in corroboration of such a -wit- ness.*^ An instruction tellings the jury in effect that, while the law permits the impeachment of a witness by proving his genexal reputation for truth and veracity to be bad, yet if they believe the witness, while on the stand, gave a truthful, candid, and honest statement of the facts, they should give it such faith and credit as in their opinion it is entitled to, is proper, and should be giv- en,*" and it is proper to refuse an instruction that the jury may discard altogether the testimony of a witness so impeached.** It may not be improper in a criminal case, under some circumstanc- es, to instruct that the jury cannot discard as false the testimony of a certain witness for the state, if the jury find beyond a reason- able doubt that such testimony is strengthened, confirmed, and corroborated as to all the facts and circumstances by other wit- nesses whose testimony is believed by the jury beyond a reason- able doubt; this instruction .also being made applicable to every witness on either side.** A charge with respect to the effect of the direct contradiction of a witness by the testimony of other witnesses upon the credi- bility of the witness so contradicted should not ignore the possi- bility of an honest mistake,*® and it is not improper to ^ charge that the jury should, if possible, reconcile the testimony of the 4 Ector V. State, 48 S. B. 315, 120 Ala. 58; Hall v. State, 30 So. 422, 130 Ga. 543 ; Grant v. State, 45 S. E. 603, Ala. 45. lis Ga. 804. Iiuitrnctions beld improper Right to believe impeacliedl '"^ithiii rule. Where, in a criminal witness, although not corroborat- Prosecution, the principal testimony ed. An instruction that the jury ^°F ^^^ ^*^*® consisted of that of a "might give full faith and credit to witaess reciting a conversation with the testimony" of a witness whose a third person, and the court instruct- veracity was impeached, and "might ed-that m weighing the testimony of convict thereon without corrobora- such witness the jury should consiier tion," was erroneous, as practically whether it was true or not, or wheth-' instructing the jury to give such faith ^"^ ^® fabricated the story for the and credit and convict thereon. Sny- P^'Pose of convicting an Innocent der V. State, 29 So. 78, 78 Miss. 366. Si ?' ^'"? ^^'l *H^ 1^^ *^^* '* ^^^ . rr -,/ e.^ . ^^ c ^.r. . .>, ^^^^^ P^*""^ ^uty, if they believed the 41 Hamilton v. State, 41 So, 940, 147 story fabricated, to determine the mo- -*-l^' 1^0. tive; it being improbable that such 42 Eoy V. Goings, 112 111. 656; Hed- a thing could be done without any rick V. Bell, 84 111. App. 523. motive, it was held that the instruc- 48 Osborn V. State, 27 So. 758, 125 !!?" 7^® erroneous, as excluding from Ala 106 ™® J^'^y ^® question whether the 44 PooTiiA V RikPr ifis TM w A 251. An in- struction that in considering the weight and effect to be given defend- ant's evidence, while the jury may consider his manner and the prob- 329 CEBDIBILITY OF WITNESSES §167 Thus, while sustained in some jurisdictions,^* it is error in other jurisdictions to give an instruction to the effect that the jury are not required to receive blindly the testimony of the accused, but that they may consider whether it is true and given in good faith, or only for the purpose of avoiding a conviction,^' and an in- struction on the right of the defendant to testify which tends to lead the jury to think that his testimony is to be treated different- ly from that of other witnesses is improper.®* An instruction that it is the duty of the jury to contrast the manner and de- meanor of the defendant, while testifying, with that of the wit- ability of Ms statements, taken in connection with all the evidence in the case, and, "if convincing and car- rying -with it a belief in its truth, act on it" ; if not, they may reject it. People V. Hill, 82 P. 398, 1 Cal. App. 4i4. An instruction to take the evi- dence in connection with defendant's statement measuring the statement tinder the rule of law the court has given, and to determine what the truth of the matter is, and let the verdict be in accordance with what the jury believes to be the truth, and that there is nothing in the case but the law and the evidence. Roberts v." State, 72 S. E. 287, 9 Ga. App. 807. An instruction that, in passing on the evidence of the accused, the jury should take into consideration the • interest he has in the indictment, and should scrutinize his evidence close- ly, _ but that the jury would not be warranted in refusing to believe what accused said, because of the fact that he was under indictment, etc. State V. Dixon, 62 S. E. 615, 149 N. C. 460. A charge that, in weighing defend- ant's testimony, the jury should fully and fairly consider whether it is true and made in good faith; the terms "true" and "made in good faith" be- ing in such case' synonymous, and not implying that the testimony shoula be rejected, though true, if not made in good faith. Carleton v. State, 43 Neb. 373, 61 N. W. 699. An instruc- tion that the interest of the prisoner is never to be excluded from the minds of the jury ; that wherever he "has made a statement not true, to establish a falsity instead of a truth, his testimony is not entitled to the credit of a witness who stands fair- ly before you uncontradicted"; and that then "his testimony is entitled to no weight or credit of itself, ex- cept so far as it is consistent with the known and established facts of the case, as corroborated by other witnesses" — is not open to an objec- tion that it charges that the "testi- mony ' of the prisoner was entitled to no weight, except as corroborated by others," especially where, upon ex- ception being taken on such ground, the judge replied, "I have not said that, gentlemen." People v. Pet- meeky, 99 N. T. 415, 2 ' N. E. 145. Where, after the court instructed the jury that they could believe a part of the statement and reject a part, it was not misleading to charge to "find out what the truth of the cage is, what the real facts are, and look to the evidence for that purpose, and to the prisoner's statement, If you think it worthy of credit." West- brook V. State, 97 Ga. 189, 22 S. B. 398. Where the court charged that the jury must consider all the evi- dence, an instruction that the evi- dence of accused, if convincing, could be acted on, otherwise rejected, was' not erroneous, as leading the jury to fail to give due consideration to the testimony of accused. State v. John- ny, 87 P. 3, 29 Nev. 203. 92 Jones V. State, 61 Ark. 88, 32 S. W. 81; State v. Walker, 110 N. W. 925, 133 Iowa, 489; State v. MecUm, 95 Iowa, 433, 64 N. W. 286. 83 Conner v. State, lOO N. W. 305, 72 Neb. 263, 117 Am. St. Rep. 789; State V. Fuller, 96 P. 456, 52 Or. 42. 8* People V. Gerold, 107 N. E. 165, 265 111. 448, Ann. Oas. 3916A, 636. § 167 INSTRUCTIONS TO JURIES 330 nesses for the state, gives undue prominence to the manner of the defendant,^^ and an instruction which permits the jury to consider the demeanor. and conduct of the accused while off the witness stand is erroneous.^^ It is not improper, however, to charge that the jury are not required to believe the testimony of the defendant,*' or that they shall give it such weight only as they think it is entitled to re- ceive under all the circumstances of the case,** where such rule is made applicable to all the witnesses alike.®* Instructions which tend to lead the jury to think that they should give the same cre- dence to the testimony of the defendant as to that of any disin- terested witness,^ or which set up an arbitrary standard for weighing his testimony,^ are properly refused. 9 5 Pope V. State, 53 So. 292, 168 Ala. 33. 96 People V. McGinnis, 84 N. E. . 687, 234 111. 68, 123 Am. St. Rep. 73 ; Vale V. People, 161 111. 309, 43 N. B. 1091. Instructions not erroneous irith- in rule. An Instruction that the ju- ry could determine, from the witness- es' appearance, their interest in the ■event, their bias, etc., and, from all the surrounding circumstances which witnesses were worthy of credit was not erroneous as authorizing the con- sideration of accused's demeanor dur- ing the trial. People v. Curtright, 101 N. E. 551, 258 111. 430. 97 People V. Lalor, 124 N. B. 866, 290 111. 234; People v. Foster, 123 N. E. 534, 278 111. 371; People v. Duzan, 112 N. E. 315, 272 111. 478. Instructions proper within rule. A charge that while the law says defendant is a competent witness and may testify in his own behalf, and the jury should not capriciously disregard it, this does not mean thav they should believe it, but only that they should consider it, and ascertain to the best of their judgment whether it is true, and, if true, they should act on it as on truth from any other source, and, if they should not be- lieve it, they should reject it, they being the sole judges of the truth o£ the evidence. Harrison v. State, 40 So. 568, 144 Ala. 20. A charge that, while the law requires the jury to consider the testimony of the defend- ant in connection with all other evi- dence in the case, they are the judges of what is true, and if they are not satisfied that defendant's testimony is true, then they may disregard it. Lewis V. State, 88 Ala. 11, 6 So. 755. An instruction that the jury were not bound to believe all or any part of the testimony given by the defendant in his own behalf, but might disbelieve the same if the facts warranted it, is not erroneous, where the court has already charged the ju- ry that the defendant was a compe- tent witness, and that his testimony was to be weighed by the same rules that govern the testimony of other witnesses, and the evidence tends "to discredit a part of his testimony, State v. Elliot, 90 Mo. 350, 2 S. W. 411. 9 8 Olive V. State, 34 Pla. 203. 15 So. 925 ; Brown v. State, 60 Ga. 210 ; Mcintosh V. State, 51 N. E. 334, 151 Ind. 251 ; State v. Buffington, 81 P. 465. 71 Kan. 804, 4 L. R. A. (N. S.) 154 ; Palmer v. State, 97 N. W. 235, 70 Neb. 136. 09 Territory v. Livingston, 84 P. 1021, 13 N. M. 318. 1 People V. Hiltel, 63 P. 919, 181 Cal. 577; Blanton v. State, 41 So. 789, 52 Fla. 12 ; State v. Ringer, 100 S. E. 418, 84 W. Va. 546. 2 Ivang V. State, 28 So. 856, 42 Fla. 595. 331 CREDIBILITY OF WITNESSES 168 § 168, Reference to interest of the defendant in the event of the trial In some jurisdictions the statute makes the defendant in a criminal case an exception to the general rule against singling out a particular witness and directing the attention of the jury to his testimony,* and in a number of jurisdictions an instruction that the jury may, in estimating the credibility of the testimony of the accused, consider the interest which he has in the result of the prosecution, is proper,* so long as the jury are not au- thorized to disregard the testimony of the defendant,® and are 3 state V. De Lea, 93 P. 814, 36 Mont. 531. 1 U. S. (O. C. A. Oal.) Schulze v. United States, 259, F. 189, ITO C. C. A. 257, affirming judgment (D. C.) United States v. Schulze, 253 F. 377 ; (C. C. A. I^.) Foster v. United States, 256 F. 207, 167 C. C. A. 428; (C. O. A. Ya..) Belvin v. V. S:, 260 F. 455, 171 C. C. A. 281. Ala. Weaver r. State, 55 So. 956, 1 Ala. App. 48, rehearing denied 56 So. 749, 2 Ala. App. 98; Wright v. State, 42 So. 745, 148 Ala. 596 ; Ham- mond V. State, 41 So. 761, 147 Ala. 79; Smith v. State, 24 So. 55, 118 Ala. 117. Compare Eoberson v. State, 57 So. 829, 175 Ala. 15. -Ark, Whitener v. State, 178 S. W. 394, 120 Ark. 80; Weatherford v." State, 93 S. W. 61, 78 Ark. 86 ; Ham- ilton V. State, 36 S. W. 1054, 62 Ark. 543. Colo. Gankyo Mitsunaga v. Peo- ple. 129 P. 241, 54 Colo. 102. Fla. Eobertson v. State, 60 So. 118, 64 Fla. 437 ; Fuentes v. State, 59 So. 395, 64 Fla. 64. Idaho. State v. Webb, 55 P. 892, 6 Idaho, 428. ni. People V. Maciejewski, 128 N. E. 489, 294 111. 390. Kan, State v. Killion, 148 P. 643, 95 Kan. 371. Mich. People V. Hahn, 183 N. W. 48, 214 Mich. 419; People v. Wil- liams, 175 N. W. 187, 208 Mich. 586. Mont. State V. Metcalf, 17 Mom 417. 43 P. 182. N. .T. State V, Randall, 113 A. 231. Neb. Philamalee v. State, 78 N. W. 625, 58 Neb. 320. W. M. State V. Moss, 172 P. 199, 24 N. M. 59. N. C. State v. Burton, 90 S. E. 561, 172 N. C. 989. Pa. Commonwealth v. McKwayne, 70 A. 809, 221 Pa. 449. Tenn. Cooper v. State, 138 S. W.. 826, 123 Tenn. 37. Wis. Emery v. State, 78 N. W. 145, 101 Wis. 627. otr. S. (C. C. A. La.) Alexis v. United States, 129 F. 60, 68 C. C. A. 502. Ala. Brown v. State, 38 So. 26S, 142 Ala. 287. Ark. Blair v. State, 64 S. W. 94S, 69 Ark. 558. 111. People V. Cotton, 95 N. E. 283, 250 111. 338. Iowa. State v. Brooks, 165 N. W. 194, 181 Iowa, 874; State v. Kyan, 85 N. W. 812, 113 Iowa, 536. N. C. State V. Lovelace, 101 S. E. 880. 178 N. C. 762. Instructions held not improper within mle. In a murder case, a charge that the jury had no right to disregard' the testimony of accused simply because he was charged with the commission of a crime, and that they were not required to receive his testimony as true, but that they should fairly consider whether it was true, taking into consideration his interest in the prosecution, that the law presumed accused to be innocent until proved guilty by the evidence beyond a reasonable doubt, that It allowed him to testify in his own be- half, which testimony should be fair- ly "and Impartially considered togeth- er with the other evidence. Johnson V. State, 180 N. W. 282, 88 Neb. 565, Ann. Cas. 1912B, 965. In a prosecu- tion for rape, an instruction that the rules governing evidence generally § 168 INSTETJCTIONS TO JURIES 332 told to apply the same tests to the defendant as to other wit- nesses,® and the court need not refer, in connection with such an instruction, to the interest of other witnesses where the defend- ant is the only witness interested,' and, of course, in jurisdic- tions where a cautionary instruction referring directly to the interest of the defendant in the result of the trial as affecting his credibility is proper, an instruction of general application -re- garding the credibility of witnesses, otherwise proper and cor- rect, is not open to objection because the defendant is the only witness having a. direct legal interest in such result.* In some jurisdictions, however, it is error specially to call the attention of the jury to the interest of the accused,® and there is applied to the defendant as a witness In his own behalf, and that the jury were at liberty to give his evidence such weight as it was entitled to in view of all the facts in the case, and referring to defendant's interest as bearing on his credibility. People v. Eich, 94 N. W. 375, 133 Mich. 14., An instruction that the jury should give the testimony of accused the same impartial consideration as ac- corded that of other witnesses and not arbitrarily disregard his testimo- ny, but that on the other hand they were not required blindly to receive a fact as true because he stated it, but that they should consider his testimony with all the facts in evi- dence in order to determine whether they were made in good faith or only in order to avoid conviction, and that in considering the degree of credit to be given accused they might take into consideration his appearance and manner, the reasonableness of his statements, and his interest. Hudson v. State, 91 S. W. 299, 77 Ark. 834. An instmction that it was the jury's duty to scrutinize the testimony of the accused carefully, because of his interest, but that, notwithstanding such interest, the jury might believe all or a part of his evidence, if it saw fit. State v. Vann, 77 S. B. 295, 162 N. O. 534. e Foster v. People, 139 P. 10,- 56 Colo. 452; People v. Harrison, 104 N. E. 259, 261 111. 517. Instructions held proper within rule. An instmction that it was de- fendant's right to be sworn as a wit- ness, and that the jury should con- sider his testimony with the other testimony in the case, and give it such weight as in their judgment it should receive, bearing in mind the fact of his interest and applying to his testi- mony the same rules of credibility ' that the jury, apply to other witness- es. State V. Ames, 96 N. W. 330, 90 Minn. 183. Where the court had pre- viously charged that accused was a competent witness in his own behalf, and that the credibility of his testi- mony was a matter exclusively for the JTiry, and that they might consid- er his interest in the result of the case, another instruction that the ju- ry should not believe testimony giv- en blindly, but should determine for themselves whether it was true and made in good faith, or only for the purpose of avoiding a conviction, was not erroneous on the ground that de- fendant's testimony was thereby sin- gled out and made the subject of a distinct method of measuring the credibility thereof. Porter v. People, 74 P. 879, 31 Colo. 508. ' State V. Young, 74 N. W. 693, 10 i Iowa, 730. 8 Savary v. State, 87 N. W. 34, 62 Neb. 166. « EJrickson v. State, 127 Pae. 754, 14 Ariz. 253 ; State v. King, 64 So. 1007, 135 La. 117; Tardy v. State, 78 S. W. 1076, 46 Tex. Cr. R. 214. In Arizona, the rule of the text ease is based on the constitutional provision forbidding judges to charge juries with respect to matters of fact or to comment thereon, and former 333 CREDIBILITY OF WITNESSES §168 a growing tendency on the part of the courts to disapprove of instructions with respect to the - testimony of the accused, which depart from the general rule against singling out a particular wit- ness for the purpose of charging as to his credibility. In Cali- fornia, the earlier position of the courts on this subject has been abandoned, and it is now held, in this jurisdiction, that an instruc- tion that it is proper for the jury to consider whether the interest of the defendant in a criminal case may not affect his credibility is vicious in calling particular attention to his testimony,^" and that it is reversible error to instruct that in determining the credi- bility of the accused it is proper for the jury to consider the con- sequences and temptations which would ordinarily influence a person in his situation." In Missouri the later cases hold,^^ over- ruling a long line of earlier decisions,^^ that it is reversible error to tell the jury that they may consider the interest of the de- fendant in the result of the trial. In Mississippi, where the de- decisions (Prior V. Territory, 89 P. 412, 11 Ariz. 169, Halderman v. Ter- ritory, 60 P. 876, 7 Ariz. 120) to the ■ effect that the jury might properly be told that they could consider the very great interest of the accused in their verdict have been overruled. Instructions not objectionable -nritliin rale. Where the court in a homicide case instructed the jury to consider the interest or lack of in- terest that any witness might have in the outcome of the trial, a subsequent instruction to judge the testimony of defendant by the same general rules that govern the testimony of other witnesses did not direct the jurors' attention too pointedly to defendant's interest in the trial, a matter which was apparent to the jury. State v. Elby, 83 So. 227, 145 La. 1019. 10 People V. Blunkall, 161 P. 997, 31 Cal. App. 778; People v. Bartol, 142 P. 510, 24 Cal. App. 659. Instruction of general applica- tion. An instruction that, in con- sidering the weight and effect to be given to the testimony of witnesses, the jurors have the right to consider the consequences resulting to a wit- ness from the result of the trial is not open to the criticism that it sin- gles out defendant. People v. Bot- kin, 98 P. 861, 9 Oal. App. 244. The court properly instructed the jury that, "in judging the credibility of a witness, whether such witness be the defendant, the prosecutor, or any other witness produced on either side, you may consider the interest and relation of such witness in and to the case." People v. Bernal, 180 P. 825, 40 Cal. App. 358. . 11 People V. Maughs, 86 P. 187, 149 Cal. 253. Former decisions in this jurisdic- tion while holding such an instruc- tion as subject to criticism, did not deem it a cause for reversal. People V. Ryan, 92 P. 833, 152 Cal. 364 ; Peo- ple V. Tibbs, 76 P. 904, 143 Cal. 100. "State V. Clark, 202 S. W. 259; State V. Winner, 199 S. W. 126 ; State V. Sparks, 195 S. W. 1031; State v. Beeves, 195 S. W. 1027; State v. Goode, 195 S. W. 1006, 271 Mo. 43; State V. Fish, 195 S. W. 997 ; State v. Rose, 193 S. W. 811 ; State v. Asbell, 192 S. W. 469 ; State v. Pace, 192 S. W. 428, 269 Mo. 681; State v. Finkel- stein, 191 S. W. 1002, 269 Mo. 612. See State v. Kodan, 208 S. W. 44. 13 State V. Hyder, 167 S. W. 524, 258 Mo. 225; State v. Brown, 115 S. W. 967, 216 Mo. 351 ; State v. Dower, 114 S. W. 1104, 134 Mo. App. 352; State V. Stanley, 100 S. W. 678, 123 Mo. App. 294 ; State v. Dilts, 90 S. W. 782, 191 Mo. 665 ; State v. Summar, 45 S. W. 254, 143 Mo. 220, § 168 INSTRUCTIONS TO JURIES 334 fendant is the only witness in his behalf, it is error to give such an instruction/* and in this jurisdiction an instruction of general application to all the witnesseSj permitting the jury to consider their interest, is erroneous, where the defendant is the only wit- ness in his own behalf, and testifies to facts which, if believed, entitle him to an acquittal.-'" In Nevada the statute expressly pro- vides that no special instruction relating exclusively to the testi- mony of the defendant or particularly directing the attention of the jury to such testimony shall be given. i" In jurisdictions where it is proper to give an instruction on the interest of the accused, the court should avoid unduly emphasizing the idea that such interest may induce him to testify falsely,-'* and it is error, as has been indicated by the foregoing, discussion, to give instructions which discredit the testimony of the ac- cused,^* or which put him in a separate and inferior class of wit- 1* Smith V. State, 43 So. 465, 90 Miss. Ill, 122 Am. St. Rep. 313. 15 Kgbtt V. State, 65 So. 583, 107 Miss. 552 ; Chatmaii v. State, 59 So. 8, 102 Miss. 179; Gaines v. State (Miss.) 48 So. 182. Rule where relative testifies for accused. An instruction that, in de- termining weight of testimony of each witness, the Jury could consider his interest or lack thereof and reason- ableness or the unreasonableness of testimony, etc., was not objectionable as pointing out accused, where his brother-in-law testified for him. -yalls V. State, 48 So. 725, 94 Miss. 365. De- fendant's father, as well as defendant, having testified for the defense, de- fendant is not singled out by an in- struction that in determining cred- ibility of witnesses the motive and interest any may have may be con- sidered. Murphy v. State, 80 So. 636, 119 Miss. 220. i" State V. Blaha, 154 P. 78, 39 Nev. 115. 17 Peterson v. State, 120 N. W. 1110, 84 Neb. 76 ; Burk v. State, 112 N. W. 573, 79 Neb. 241. 18 People V. Munday, 117 N. E. 286, 280 111. 32, reversing judgment 204 111. App. 24; State v. Bartlett, 93 P. 243, 50 Or. 440, 19 L. R. A. (N. S.) 802, 126 Am. St. Rep. 751. Instructions not improper with- in rule. A charge, in a prosecution for robbery, that the credibility of witnesses was for the jury, that they should consider the interest of each one in the case, his manner of giving testimony, the opportunity he had for observing, etc. People v. Blanchard, 98 N. W. 983, 136 Mich. 146. A charge, on a prosecution for murder, that the ■ jury are not bound to believe the de- fendant, but are bound to give his tes- timony such weight as they believe it entitled to ; that defendant's cred- ibility, and the weight to be attached to his testimony, are matters exclu- sively for the jury ; and that the de- fendant's interest in the result of the trial is proper to be considered— when taken in connection with in- structions that such testimony should be fully and impartially considered, and subjected to the same tests as that of other witnesses. Henry v. People, 65 N. E. 120, 198 111. 162. An instruction that the credibility and weight of defendant's testimony wore for the jury, and that they might con- sider his manner of testifying, the reasonableness of his account of the transaction, and his interest in the case, and should consider his testi- mony and determine whether it was true or not, was not open to the ob- jection of telling the jury that they were not bound to treat defendant's testimony the same as that of other witnesses. Waller v. People, 70 N. E. 681, 209 111. 284. Where Instructions given at the request of defendant, who did not testify on a trial for mur- der, gave him the full benefit before 335 CREDIBILITY OF WITNESSES § 169 nesses," and it is improper to charge that the defendant, being an interested witness, is not entitled to as much credence as an unin- terested witness.*" So the court should avoid giving the jury the impression that the defendant should be corroborated in order to be believed.*! Thus it is error to instruct that the jury may be- lieve or disbelieve the testimony of the defendant, accordingly as they shall find it to be corroborated or contradicted by the other facts and circumstances in evidence.** § 169. Effect of impeaching testimony Where the defendant in a criminal case, testifying as a wit- ness, has been contradicted, or there is evidence impeaching him in other ways, it is proper, in some jurisdictions, to charge that such impeaching matters may be considered by the jury for the purpose of determining his credibility;** the jury being told that the same tests apply to the defendant as to other witnesses.** An instruction, however, that in determining the credibility of the testimony of defendant the jury are to take into consideration the fact, if such is the fact, that he has been contradicted by other witnes^ses, is objectionable as in effect telling the jury that they must consider such contradiction, regardless of whether it is in respect to a matter which is material or relevant to the issues, or not, and regardless of whether the witnesses contradicting the de- fendant are deemed by the jury to be worthy of credit.*^ the jury of his statements before the 22 state v. Sanders, 106 Mo. 188, 17 examining magistrate that his wife S. W. 223. was killed by an unknown burglar, 23 Miller v. People, 82 N. E. 391, which were introduced by the state 229 111. 376 ; Maguire v. People, 76 N. as a part of its evidence in chief, an B. 67, 2^9 111. 16; Faulkner v. Terri- instruction, given for the prosecution, tory, 6 N. M. 464, 30 P. 906; State v. that in weighing defendant's testimo- Reyner, 91 P. 301, 50 Or. 224; Com- ny the jury had a right to consider his monwealtli v. Wendt, 102 A. 27, 258 interest in the result, was not objec- Pa. 325. tionable on the ground that it tended Contradiction fcy "credible" -nrit- to discredit him. Gott v. People, 58 JS. nesses. Where accused testified In E. 293, 187 111. 249. his own behalf, an Instruction that lOKeigans v. State, 41 So. 886, 52 the jury in determining his credibility Fla. 57 ; People v. Fitzgerald, 130 N. should consider the fact, if such Is B. 720, 297 111. 264 ; Hellyer v. People, the fact, that he has been contradicted 58 N. B. 245, 186 111. 550; Bird v. by other Witnesses, Is not erroneous, State, 8 N. B. 14, 107 Ind. 154 ; State because of the omission of the qualify- v. Graham, 45 S. E. 514, 133 N. C. ing word "credible" before the word 645. "witnesses." HIggins v. People, 98 30 People V. Gerdvlne, 104 N. B. 129, 111. 519. 210 N. r. 184. 24 People v. Harrison, 104 N. E. 21 State V. Hunter, 92 N. W. 872, 259. 261 111. 517. 118 Iowa, 686; State v. Patterson, 25 Purdy v. People, 140 111. 46. 29 98 Mo. 283, 11 S. W. 728. N. B. 700. § 170 INSTRUCTIONS TO JURIES 336 § 170. Effect of false testimony Where the accused has given testimony in his own behalf, the court may, in some jurisdictions, in a proper case, charge gener- ally that, if the jury believe that any witness has willfully testi- fied to any material fact, they may disregard his entire testi- mony,^® such an instruction not being open to objection as being directed especially against the defendant,*' and in some jurisdic- tions, as has already been indicated, it is proper to specifically point! out the defendant and apply such an instruction to his tes- timony,^* so long as the qualification with respect to lack of corroboration is included,** and so long as the jury are told that the same tests apply to other witnesses.*" Such an instruction, as in the case of other witnesses, must require that the false tes- timony be willfully so,*^ and must relate to a material fact.** § 171. Unsworn statement of defendant Where the defendant makes an unsworn statement at the trial, it is held to be reversible error to fail to charge the rule of law applicable thereto, although no 'request is made to so in- struct.** Usually, in charging on the weight to be accorded to the state- ment of the accused, not given under oath, it will be well to fol- low the language of the statute,** although the failure to use the exact language of the statute touching such statement will not constitute error.*^ 26 state V. Raice, 123 N. W. 708, 24 »» people v. Harrison, 104 N. B. 259, S. D. 111. 261 111. 517 ; State v. Melvern, 72 P. 27 Shumway v. State, 117 N. W. 489. .S2 Wash. 7. 407, 82 Neb. 152, judgment affirmed «i Keef v. State, 60 So. 963, 7 Ala. on rehearing 119 N. W. 517, 82 Neb. App. IS; Lambert v. People, 34 111. 166. App. 637. ssparham v. State, 42 So. 1, 147 32 Fuiiderburls v. State,' 145 Ala. Ala. 57. 661, 39 So. 672. 20 McCracken v. People, 70 N. B. ss Bryant v. State, 97 S. E. 271, 23 749, 209 111. 215 ; Hirschman v. Peo- Ga. App. 3. pie, 101 111. 568. 84 McLane v. State, 93 S. B. 558, 20 Materiality o£ facts concerning Ga. App. 825 ; Lucas v. State, 91 S. which false testimony given. On E. 72, 146 Ga. 315 ; Glover v. State, a prosecution for perjury, an instruc- 72 S. E. 926, 137 Ga. 82 ; Washing- tion that, unless corroborated, the ton v. State, 70 S. E. 797, 1^6 Ga. 66; jury may disregard all of defendant's Rouse v. State, 58 S. E. 416, 2 Ga. testimony, if they believe he wiUfully App. 184; Caesar v. State, 57 S. B. swore falsely as to any of the facts. 66, 127 Ga. 710; Howell v. State, 52 in issue, is substantially the same aa S. E. 649, 124 Ga. 698 ; Morgan v. telling the jury they must believe he State, 46 S. E. 836, 119 Ga. 566. so swore to some material fact be- ss Hill v. State, 86 S. E. 657, 17 Ga. fore they can disregard his uncor- App. 294; Mixon v. State, 68 S. B. roborated testimony. Johnson v. Peo- 315, 7 Ga. App. 805; Brundage v. pie, 94 111. 505. State, 67 S. E. 1051, 7 Ga. App. 726. 337 CREDIBILITY OF WITNESSES §171 Under the Georgia decisions the court may instruct that such unsworn statement should be considered in connection with all the evidence,*^ that the jury may take the evidence from the tes- timony of the witnesses and the statement of the defendant,*' that such statement is to be given such weight as the jury may think proper,^* that they may believe it in preference to the sworn testimony, provided they believe it to be true,** and that, in de- termining the weight to be given such statement, the jury should take into consideration the manner of the defendant on the stand, his manner in making the statement, the fact that he is not under oath, that he is not subject to cross-examination without his con- sent, that he has an interest, and if the jury should determine to give such statement any faith or credit they should consider it along with all the testimony in the case.*" ss Murphy v. State, 50 S. E. 48, 122 Ga. 149; Sutherland v. State, 48 S. E. 915, 121 Ga. 190 ; Smalls v. State, , 31 S. E. 571, 105 Ga. 669. Instructions held proper. An in- struction that the prisoner has a right to make a statement not under oath, and it is the province of the jury to consider such statement in connection with the sworn testimony in the case, and give it such weight as they think proper, and, if they find the statement true, they have a right to believe it in preference to the sworn testimony in the case, but under their oaths as jurors they must con- sider the statement In connection with the sworn testimony in t6e case, and test it in the light of that testi- mony, giving it such weight as they think proper. Barnes v. State, 39 S. E. 488, 113 Ga. 716. . 3 7 Hendrix v. State, 63 S. E. 939, 5 Ga. App. 819. 38 Douglas V. State, 79 S. E. 1134, 14 Ga. App. 14; Woods v. State, 73 S. E. 608, 10 Ga. App. 476. Permitting jury to act arbitra- rily. An instruction that the jury can give the statement of accused such credence as they think it ought to have, they may believe it in prefer- ence to the sworn testimony in the case, or believe it in part, or reject it in part, or reject it altogether, giv- ing it just such weight- as they think it ought to have, was not erroneous as giving the jury to understand that they could act arbitrarily in the mat- iNST.TO Jttkies— 22 ter. Adams v. State, 53 S. B. 804, 125 Ga. 11. 3 8 Smith V. State, 79 S. E. 764, 13 Ga. App. 663; Mason v. State, 97 Ga. 388, 23 S. E. 831. Sucb a charge is not objection- able as excluding the privilege of be- lieving the statement only in part, and as requiring the jury either to entirely accept or reject it. Wilder V. State, 96 S. E. 325, 148 Ga. 270. 40 Ryals v. State, 54 S. B. 16?, 125 Ga. 266; Hackett v. State, 33 S. E. 842, 108 Ga. 40 ; Teasley v. State, 32 S. E. 335, 105 Ga. 842; Poppell v. State, 71 Ga. 276. Reference to ^act that state- ment is not under oath. An in- struction, on a trial for assault with intent to murder, in reference to de- fendant's statement, that defendant, as in all other criminal cases, was allowed to make a statement not un- der oath, but to state such matters as he liked or deemed best, that the jury were authorized to accept the statement and believe the whole of it and disregard his sworn testimony, or to discard the statement, or to take such portion of it as they de- sired and discard the rest, and that it was for the jury to determine the weight and credit they would give to the statement, was sub- stantially correct, and not unfavor- able to defendant. Parker v. State, 57 S. E. 1028, 1 Ga. App. 781. A charge, in a murder case, that no penalty attaches for the making of a § 172 INSTRUCTIONS TO JUEIBS 338 G. Testimony of AccompIvIces Province of court or jury, see ante, § 21. § 172. Instructions .as to who are accomplices It is held that an accused, who desires that the ' question of whether a witness is an accomplice be presented to the jury, should request an instruction submitting, such issue." Where the court submits to the jury the question whether a witness is an accomplice, it should state to them the elements essential to constitute one an accomplice,** and the evidence may be such as to require the court to charge, on request, that if certain facts are established a witness is an accomplice, although it has previously given a correct abstract definition of an accomplice;** but no such definition is necessary where the court in a proper case tells the jury that a witness is an a(}complice.** Ordinarily the ques- tion of whether a witness' is an accomplice is one of fact, and the false statement by accused, but that the jury can give to it such weight and credit as they deem it entitled to, and act upon it, and acquit accused, even in preference to the sworn testi- mony, if they desire, or can set the statement aside, and look to the sworn testimony for the truth, is not erroneous, because not in the exact language of the statute. Webb v. State, 69 S. E. 601, 8 Ga. App. 430. An instruction that statement of ac- cused is not made under oath, and has only such force as the jury may think right to give it, and that they may believe it in preference to the sworn testimony is not erroneous, as being subject to the construction that the statement could have been made under oath. Oppenheim v. State, 77 S. E. 652, 12 Ga. App. 480. Instruction that defendant had made statement in his own behalf, not un- der oath, and that jury was not bound to give it any weight, but might be- lieve it in preference to sworn testi- mony in case, was in accord with statute, and not erroneous, or objec- tionable as minimizing statement. Mitchell V. State, 94 S. B. 570, 147 Ga. 468. It is not ground for new trial that the court charged, as to accused's statement, that "it is your province to give such weight to the evidence and statement as you see proper, bearing in mind that defend- ant's statement is not under oath, and sworn evidence is under oath," where the court immediately added: "This distinction, however, will not control you in the consideration of the evidence or statement, they being entirely within your province." Kea- ton V. State, 25 S. E. 615, 99 Ga. 197. *i People V. Kichardson, 118 N. E. 514, 222 N. Y. 103, affirming judg- ment 165 N. T. S. 1104, 178 App. Div. 925 42 Spencer v. State, 194 S. W. 863, 128 Ark. 452; Suddeth v. State, 37 S. E. 747, 112 Ga. 407; Chappell v. State, 119 P. 139, 6 Okl. Cr. 398; Pace V. State, 124 S. W. 949, 58 Tex. Cr. R. 90; Thomas v. State, 73 S. W. 1045, 45 Tex. Or. R. 81. Instructions held to sufficiently define an accomplice. An instruc- tion that an accomplice is one who willfully and knowingly aids, en- courages, or assists another in the commission of the crime is not ob- jectionable because the disjunctive conjunction was used, in view of the use of the qualifying words "willfully and knowingly." People v. Kosta, 112 P. 907, 14 Cal. App. 696. 43 Crawford v. State (Tex. Cr. App.) 34 S. W. 927. 4 4 Winfleld v. State, 72 S. W. 182, 44 Tex. Cr. R. 475. 339 CREDIBILITY OF WITNESSES § 173 general rule is therefore that the court cannot be required to af- firmatively charge that a certain witness is an accomplice.*^ The fact that a witness has been indicted' for the same offense with which the defendant is charged does not entitle the latter to such an instruction.*® Where, however, the undisputed evidence shows that a witness is an accomplice the court should so instruct on request.*'' When under the facts it is for the jury to say whether a wit- ness is an accomplice, and there is not sufficient evidence to cor- roborate him if he is an accomplice, the court should charge, on request, that the defendant must be acquitted if the jury should find that the witness was an accomplice.** § 173. Necessity and propriety of instructions on reliability of accomplice testimony While, in the absence of any statute requiring the testimony of an accomplice to be corroborated in order to support a convic- tion, the court should not charge as to the policy of using ac- complice testimony,** it is proper in some jurisdictions, for the court to advise the jury that it is unsafe to find a verdict of guilty on the uncorroborated testimony of an accomplice, _ not- withstanding the lack of such a statutory provision,®* and in some 4s Driggers v. United States, 104 first believed his testimony to be true S. W. 1166, 7 Ind. T. 752, judgnjent and that it connected accused with reversed 95 P. 612, 21 Okl. 60, 1 Okl. the ofEense charged, and not then un- Cr. 167, 129 Am. St. Rep. 823, 17 Ann. less they believe that there was other Cas. 66; Carroll v. State, 62 S. W. testimony corroborative of H.'s testi- 1061 ; Martin v. State, 43 S. W. 352, mony connecting defendant with the 38 Tex. Or. R. 462; Dill v. State, offense, and that the corroboration (Tex. Cr. App.) 28 S. W. 950 ; Beach was insufficient if it merely showed V. State, 32 Tex. Cr. R. 240, 22 S. W. the commission of the offense, was 976. equivalent to charging that H. was *» Hunter v. State, 65 S. B. 154, an accomplice, and was sufficient on 133 Ga. 78 ; Davis v. State, 50 S. E. such subject. King v. State, 123 S. 376, 122 Ga. 564; Grau v. Common- W. 185, 57 Tex. Cr. R. 363. wealth, 214 S. W. 916, 185 Ky. Ill ; '<8 Morris v. State, 82 So. 574, 17 State V. Price, 160 N. W. 677, 135 Ala. App. 126. , Minn. 159. *» Long v. State, 23 Neb. 33, 36 N. *7Malone v. State, 214 S. W. 36, W. 310. 139 Ark. 385; People V.' South well, 152 ' so Freed v. U. S. (D. C.) 266 F. P. 939, 28 Cal. App. 430; Dedeaux v. 1012; United States v. Murphy (D. C. State, 87 So. 664, 125 Miss. 326 ; N. Y.) 253 F. 404 ; State v. Robinson. Wadkins v. State, 124 S. W. 959, 58 103 A. 657, 7 Boyce (Del.) 106 ; Luery Tex. Cr. R. 110, 137 Am. St. Rep. 922, v. State, 81 A. 685 ; Id., 81 A. 681, 21 Ann. Cas. 556; Clifton v. State, 116 Md. 284, Ann. Ca?. 1913D, 161; 79 S. W. 824, 46 Tex. Cr. R. 18, 108 Commonwealth v. Simon, 44 Pa. Su- Am. St. Rep. 983. per. Ct. 538, 545. Instructions held sufficient \vitli- Advising against conviction. In in rule. An instruction that the Louisiana, it is held that to advise jury could not convict accused on the the jury not to convict upon the uncor- testimony of H. alone, unless they roborated testimony of an accomplice §173 INSTRUCTIONS TO JUEIES 340 jurisdictions, where no such statutory provision exists, the de- fendant is entitled, at least upon request, to an instruction cau- tioning the jury with respect to the reliability of such testi- mony,^^ or advising them not to convict upon such testimony, unless it is corroborated by other evidence as to some material fact,^* or unless they are satisfied beyond a reasonable doubt; after a careful examination of such testimony, of its truth and that they can safely rely upon it.*"* In other jurisdictions there is no absolute rule of law which requires that, whenever an ac- complice testifies, the court must instruct that it is unsafe to con- vict, upon his testimony alone,^* or that they should not rely on especially in a case lacking such cor- roboration, would be to express an opinion on the facts. State v. Hen- derson, 87 So. 721, 148 La. 713. 51 U. S. (C. C. A. Mo.) Sykes v. United States, 204 P. 909, 123 C. 0. A. 205; (C. C. A. N. Y.) McGinniss v. United States, 256 F. 621, 167 C. O. A. 651. Colo. O'Brien v. People, 94 P. 284, 42 Colo. 40. Fla. Anthony v. State, 82 So. 818, 44 Fla. 1. 111. Hoyt V. People, 140 111. 588, 30 N. E. 315, 16 li. R. A. 289. La. State V. Hopper, 38 So. 452, 114 La. 557. Miss. Dedeaux v. State, 87 So. 664, 125 Miss. 326. Mo. State V. Meysenburg, 71 S. W. 229, 171 Mo. 1 ; State v. Woolard, ni Mo. 248, 20 S. W. 27. N. M. Territory v. Chavez, 45 P. 1107, 8 N. M. 528. Ohio. Allen v. State, 10 Ohio St. 287. Pa. Commonwealth v. Haines, 101 A. 641, 257 Pa. 289; Commonwealth V. Klein, 42 Pa. Super. Ct. 66. 'Wash. State* V. Engstrom, 150 P. 1178, 86 Wash. 499. W. Va. State V. Perry, 41 W. Va. 641, 24 S. B. 684. 62 State V. Patterson, 52 Kan. 335, 34 P. 784. Instruction held improperly re- fused within rule. Where, In a prosecution for cattle theft, the state introduced an accomplice previously convicted, it was error to refuse to charge that such witness was an ac- complice, and that, while defendant Hiight be convicted on the uncorrobo- rated testimony of an accomplice, where the honest judgment is satis- fied beyond a reasonable doubt, still the jury should act on such testimony with great care, and, if such accom- plice had testified differently at an- other time from his testimony in the case, they could not find defendant guilty on his uncorroborated testimo- ny, but that the corroboration must be as to some fact connecting defendant with the commission of the offense, other than the fact that the offense was committed, and the circumstan- ces thereof. State v. Pearson, 79 P. 985, 37 Wash. 405. 58 People V. Sapp. 118 N. E. 416, 282 111. 51; People v. Rosenberg, 108 N. E. 54, 267 111. 202. " U. S. (C. C. A. Okl.) Reeder v. U. S., 262 F. 36, certiorari denied 252 U. S. 581, 40 S. Ct. 346, 64 L. Ed. 726. Conn. State v. Carey, 56 A. 682, 76 Conn. 342. la. State V. Hauser, 36 So. 396, 112 La. 318 ; State v. De Hart, 33 So. 605, 109 La. 570 ; State v. Banks, 40 La. Ann. 736, 5 So. 18. Mass. Commonwealth v. Leven- thal, 128 N. E. 864, 236 Mass. 516; Commonwealth v. Phelps, 78 N. E. 741, 192 Mass. 591; Commonwealth V. Clune, 162 Mass. 206, 38 N. E. 435; Commonwealth v. Wilson, 152 Mass. 12, 25 N. E. 16. Mich. People V. Dumas, 125 N. W. 766, 161 Mich. 45. Miss. Cheatham v. State, 67 Miss. 835, 7 South. 204, 19 Am. St. Rep. 310. Vt. State V. Hier, 63 A. 877, 78 Vt. 488 ; State v. Potter, 42 Vt. 495. S41 CKBDIBILITY OF WITNESSES §173 such testimony unless it produces in their minds the most posi- tive conviction of its truth,^^ and the discretion of the trial judge with respect to giving such an instruction is determined by the character and interest of the accomplice, and not solely by his participation in the alleged crime.®* In some jurisdictions it is held that, while it is the duty of the court to give such a caution- ary instruction, the failure to give it vvill not, in the absence of a statute regulating the subject, constitute reversible error.*' In jurisdictions where the statute provides that a conviction can- not be had upon the testimony of an accomplice, unless it is cor- roborated by other evidence tending to connect the defendant with the commission of the alleged offense, an instruction to this ef- fect must be given in a proper case at the request of the de- fendant,*** and,' in some jurisdictions, although no request is The particnlar language in which the cautionary instruction is stated must, ia a large measure, be left to the discretion of the trial court. De- deaux v. State, 87 So. 664, 125 Miss. 326. B5 Kee V. U. S. (C. O. A. Pa.) 267 F. 84. 5 8 State V. Kritchman, 79 A. 75, 84 Conn. 152. Necessity of moral tnrpitnde. It is only when moral turpitude at- taches to the fact that accused and a witness for the state are accessories that the court is required to caution the jury that corroboration of the ac- complice's testimony is essential. State V. Weiner, 80 A. 198, 84 Conn. 411. o'Diggs V. United States (C. C. A. Cal.) 220 F. 545, 136 C. C. A. 147, cer- tiorari granted Caminetti v. United states, 35 S. Ct. 939, 238 U. S. 636, 59 L. Ed. 1500, and judgment affirmed 37 S. Ct 192, 242 U. S. 470, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168. 5 8 Ark. Beck v. State, 216 S. W. 497, 141 Ark. 102; Murphy v. State, 197 S. W. 585, 130 Ark. 353 ; Kennedy V. State, 171 S. W. 878, 115 Ark. 480. Cal. People V. Southwell, 152 P. 939, 28 Cal. App. 430 ; People v. Law- lor, 131 P. 68, 21 Cal. App. 63. Idaho. State v. Grant, 140 P. 959, 26 Idaho, 189. Iowa. Ray v. State, 1 G. Greene, 316, 48 Am. Dec. 379. Ky. Taylor v. Commonwealth, 8 S. W. 461 ; Adams v. Commonwealth, 7 Ky. Law Rep. (abstract) 529; Craft V. Commonwealth, 80 Ky. 349, 4 Ky. Law Rep. 182. Nev. State v. Carey, 122 P. 868, 34 Nev. 309. N. Y. People v. Ferola, 109 N. E. 500, 215 N. Y. 285; People v. Stehr, 153 N. Y. S. 296, 168 App. Div. 119, re- hearing granted 153 N. Y. S. 1134, 169 App. Div. 967, and judgment af- firmed on rehearing 156 N. Y. S. 1139, 172 App. Div. 970, order affirmed 114 N. E. 1077 ; Pepple v. Thomsen, 3 N. Y. Cr. R. 562. Okl. Blankenship v. State, 174 P. 298, 14 Okl. Cr. 575 ; Souther v. State, 153 P. 293, 12 Okl. Cr. 195; Fair- grieve V. State, 134 P. 837, 10 Okl. Cr. 109; Id., 134 P. 838, 10 Okl. Cr. 64-6. Or. State V. Bunyard, 144 P. 449, 73 Or. 222. Tex. Franklin v. State, 227 S. W. 488 ; Clark v. State, 218 S. W. 366, 86 Tex. Cr. R. 585 ; Hornbuckle v. State, 216 S. W. 880, 86 Tex. Cr. R. 352; Flores v. State, 216 S. W. 185, 86 Tex, Cr. R. 267; Childress v. State, 210 S. W. 193, 85 Tex. Cr. R. 22; Davidson V. State, 208 S. W. 664, 84 Tex. Cr. R. 433 ; Winn v. State, 208 S. W. 506, 84 Tex. Cr. R. 475 ; "Williams v. State. 199 S. W. 296, 82 Tex. Cr. R. 215: Bagley v. State, 179 S. W. 1167, 77 Tex. Cr., R. 539; Cooper v. State, 177 S. W. 975, 77 Tex. Or. R. 209 ; Davis V. State, 158 S. W. 288, 70 Tex. Cr. R. 524 ; Thomas v. State, 147 S. W. 262, 66 Tex. Cr. R. 374; CarUsle v. State, 173 INSTRUCTIONS TO JURIES 342 made.^^ In other jurisdictions the failure to give such an in- struction will not be error, in the absence of a request therefor.*" As indicated in the preceditig section where there is no suffi- cient evidence of corroboration of an accomplice upon whose tes- timony the state relies, the court should charge the jury that if they find the witness to be an accomplice they should acquit.*^ An instruction as to the corroboration of the testimony of an ac- complice is not necessary, where the accomplice testifies in favor of the accused,^* or where he gives no testimony to assist the state to make out its case,^* or where he refuses or fails to testify.®* 142 S. W. 1178, 64 Tex. Or. R. 535; Polk V. State, 131 S. W. 580, 60 Tex. Cr. R. 150; Johnson v. State, 125 S. W. 16, 58 Tex. Cr. R. 244 ; Green v. State, 120 S. W. 1002, 56 Tex. Cr. R. 599 ; Russell v. State, 116 S. W. 573, 55 Tex. Cr. R. 330 ; Gonzales v. State (Cr. App.) 105 S. "W. 196; Garland v. State, 104 S. W. 898, 51 Tex. Cr. R. 643 ; Saye v. State, 99 S. W. 551, 50 Tex. Cr. R. 569; Simmons v. State, 97 S. W. 1052, 50 Tex. Cr. R. 527; Leak v. State (Cr. App.) 97 S. "W. 476 ; Sapp V. State (Cr. App.) 77 S. W. 456; Brooks V. State (Cr. App.) 56 S. W. 924 ; Wilson v. State, 51 S. W. 916, 41 Tex. Cr. R. 115 ; Collins v. State (Cr. App.) 51 S. W. 216; Humphries v. State, 48 S. W. 184, 40 Tex. Cr. R. 59; Smith V. State (Cr. App.) 45 S. W. 707 ; Clark v. State, 45 S. W. 576, 39 Tex. Cr. R. 179, 73 Am. St. Rep. 918; Robinson v. State, 43 S. W. 526, 35 Tex. Cr. R. 54, 00 Am. St. Rep. 20; Brann v. State (Cr. App.) 39 S. W. 940 ; Martin v. State, '38 S. W. 194, 36 Tex. Cr. R. 632; Parr v. State (Cr. App.) 38 S. W. 180, 36 Tex. Cr. R. 493 ; Ballew v. State (Cr. App.) 34 S. W. 616 ; Boren v. State, 23 Tex. App. 28, 4 S. W. 463 ; Sitterlee v. State, 13 Tex. App. 587; Watson v. State, 9 Tex. App. 237. Utat. State V. McCurtain, 172 P. 481, 52 Utah, 63. See Ryal v. State, 182 P. 253, 16 Okl. Cr. 266. Duty to explain scope of statute. In Texas interdict of conviction upon uncorroborated evidence of an accom- plice applies to all participes criminis, and an omission so to explain the vFord "accomplice" to the jury is a ground for reversal of a conviction of murder although not objected to at the trial. Roach v. State, 4 Tex. App. 46 ; Miller v. Same, 4 Tex. App. 251. In California, however, it has been held, overruling earlier cases (People V. Sternberg, 43 P. 201, 111 Cal. 11; People V. Bonney, 98 Cal. 278, 38 P. 98, distinguishing Same v. O'Brien, 96 Cal. 171, 31 P. 45; People v. Strybe, 36 P. 3, 4 Cal. Unrep. 505), that, not- vcithstanding the provisions of a stat- ute that the jury is to be instructed on all proper occasions that the testi- mony of an accomplice is to be view- ed with distrust, error cannot be pred- icated upon the refusal of the court to so instruct. People v. Ruiz, 77 P. 907, 144 Cal. 251. Effect of incriminating evidence independent of testimony of ac- complice. Henry v. State (Tex. Cr. App.) 43 S. W. 340. 5 9Weems v. State, 182 P. 264, 16 Okl. Cr. 198; Hollingswortn v. State, 189 S. W. 488, 80 Tex. Cr. R. 299; Kelly V. State, 1 Tex. App. 628. Rule in misdemeanor cases. Where the defendant, in a prosecution for misdemeanor, does not request a written charge as to the weight of accomplice testimony, the failure to instruct thereon will not be consider- ed on appeal. Tracy v. State, 61 S. W. 127, 42 Tex. Cr. R. 494. People V. Rose, 183 P. 874 ; Butts V. State, 82 S. E. 375, 14 Ga. App. 821. 01 Jones V. State, 129 S. W. 1118, 59- Tex. Cr. R. 559. » 6 2 Bosselman v. United States (C, C. A. N. y.) 239 P. 82, 152 C. C. A. es, 6* See notes 63 and 64 on fol- lowing page. 343 CREDIBILITY OF WITNESSES §174 § 174. Necessity and sufficiency of evidence of complicity in crime to authorize or require instructions on accomplice testimony There must be some evidence of the coiiiplicity of a witness in the crime for which a defendant is being prosecuted, to require or warrant an instruction on accomplice testimony,®^ although the 132 ; state v. Smith, 77 N. W. 499, 106 Iowa, 701. Necessity of instruction that ev- idence for defendant need not be corroborated. Where an accomplice is witness for defendant, but not for the state, an instruction requiring cor- rohoration of evidence of the accom- plice if relied flpon for conviction, without stating that evidence of the accomplice for the defendant need not be corroborated is error. Josef v. State, 34 Tex. Cr. E. 446, 30 S. W. 1067. esMoseley v. State, 37 S. W. 736, 36 Tex. Cr. E. 578. 84 state V. Bums, 74 P. 983, 27 Nev. 289; Wyres v. State, 166 S. W. 1150, 74 Tex. Cr. E. 28 ; Gracy v. State, 121 S. W. 705, 57 Tex. Cr. E. 68; Wag- gone;- v. State, 35 Tex. Cr. E. 199, 32 S. W. 896. 65 Cal. People v. Balkwell, 76 P. 1017, 143 Cal. 259; People v. Ward, 66 P. 372, 134 Cal. 301. Fla. Tuberson v. State, 26 Fla. 472, 7 So. 858. Ga. Eouse v. State, 71 S. E. 667, 136 Ga. 356; Bridges v. State, 70 S. E. 968, 9 Ga. App. 235; Baker v. State, 48 S. E. 967, 121 Ga. 189. Ky". Commonwealth v. Stites, 227 S. W. 574, 190 Ky. 402 ; Elmendorf v. Commonwealth, 188 S. W. 483, 171 Ky. 410; Wellington v. Commonwealth, 164 S. W. 333, 158 Ky. 161 ; Nelms v. Commonwealth, 82 S. W. 260, 26 Ky. Law Eep. 604. Mo. State v. Eichardson, 154 S. W. 735, 248 Mo. 563, 44 L. R. A. (N. S.) 307 ; State v. Shapiro, 115 S. W. 1022, 216 Mo. 359; State v. Bailey, 88 S. W. 733, 190 Mo. 257. Okl. Hisaw v. State, 165 P. 636, 13 Okl. Cr. 484; Maggard v. State, 131 P. 549, 9 Okl. Cr. 236. S. C. State V. Lee, 29 S. C. 113, 7 S. E. 44. Tex. Clark v. State, 218 S. W. 366, 86 Tex. Cr. R. 585 ; Fisher v. State, 197 S. W. 189, 81 Tex. Cr. E. 568; Hy- roop V. State, 179 S. W. 878, 79 Tex. Cr. E. 150 ; Womack v. State, 170 S. W. 139, 74 Tex. Cr. E. 640 ; Coker v. State, 160 S. W. 366, 71 Tex. Cr. E. 504 ; Holmes v. State, 156 S. W. 1172, 70 Tex: Cr. E. 214 ; WilUams v. State, 144 S. W. 622, 65 Tex. Cr. E. 193; Miller V. State, 138 S. W. 113, 62 Tex. Cr. E. 507; Tucker v. State, 124 S. W. 904, 58 Tex. Cr. R. 271; Fields v. State, 124 S. W. 652, 57 Tex. Cr. E. 613; Eeno v. State, 120' S. W. 430, 56 Tex. Cr. R. 242 ; Scott v. State, 111 S. W. 657, 53 Tex. Cr. E. 332 ; Powell v. State (Cr. App.) 106 S. W. 362; Jenkins v. State, 93 S. W. 726, 49 Tex. Cr. E. 457 ; Prendergast v. State, 57 S. W. 850, 41 Tex. Cr. E. 358; Smith V. State, 37 S. W. 743, 36 Tex, Cr. E. 442; Lawrence v. State, 35 Tex. Cr. E. 114, 32 S. W. 5B0; Wil- son V. State (Cr. App.) 24 S. W. 649; Trent v. State, 31 Tex. Cr. E. 251, 20 S. W. 547; Pitner v. State, 23 Tex. App. 366, 5 S. W. 210 ; May v. State, 22 Tex. App. 595, 3 S. W. 781 ; Kerri- gan V. State, 21 Tex. App. 487, 2 S. W. 756 ; Smith v. State, 8 Tex. App. 39. Evidence tending to cast suspi- cion on -witness as against direct evidence tbat he ivas not an ac- complice. Where there was direct evidence from both sides that a cer- tain witness was not an accomplice in the crime, though tbe evidence as a whole tended to cast suspicion on him, it was held that it was proper to re- fuse to instruct that the witness was an accomplice, and that his uncorrob- orated testimony could not convict, though it would have been proper, if requested, to have submitted to the jury the fact whether he was an ac- complice, together with the effect of complicity, on his testimony. State v. Haynes, 75 N. W. 267, 7 N. D. 352. 174 INSTRUCTIONS TO JURIES 344 defendant contends that a certain witness is an accomplice.^ Mere knowledge on the part of a witness that the defendant com- mitted the crime of which he is accused does not call for such an instruction.*' On the other hand inculpatory testimony against a witness may render it necessary for the court to charge, on re- Evidence held sufficient to ne- cessitate an instruction on accom- plice testimony. Where the princi- pal state's witness, who has twice been arrested for other murders, tes- tifies that he accompanied defendants to the body, by traveling several miles through dense brush; that they in- formed him that they were going to bury deceased; that witness dug the grave at their instruction, and helped to bury the body ; and that the father threatened to injure him if anything became known — the inference is de- ducible that witness was intimately connected with the crime,%nd it is er- ror to refuse to charge in regard to the necessary corroboration of an ac- . complice. Conde v. State, 33 Tex. Or. R. 10, 24 S. W. 415. Where, in a mur- der case, a witness for the state testi- fied, in regard to a piece of quilt and a sack found together the morning after the. murder, on the road between the house of the murdered persons and that of defendant, that he thought the quilt belonged to defend- ant, but was positive that the sack be- longed to the principal witness for the state, who had testified that defend- ant confessed to him that he com- mitted the murder and the principal witness had said nothing about this confession until after he knew that he himself was suspected of the crime, and had then lied about his knowledge of the murder before telling of the confession, it was held that the evi- dence called for a charge on the testi- mony of an accomplice. Shulze v. State, 28 Tex. App. 316, 12 S. W. 1084. A refusal to give an instruction as to the weight of accomplice testimony Is error where one of the witnesses for the state was shown to"^ have had knowledge of the whereabouts of the deceased at the time of the killing, where his tracks were found going to and from the body, and he had been seen going with a gun in the direction of the scene of the killing shortly be- fore; and where he had told some one before the body was found that the deceased had been killed, and re- lated the maaner of the killing. Hines V. Statsj, 27 Tex. App. 104, 10 S. W. 448. Testimony that defendant proposed to witness and others that they break into a car ; that they all walked to the car; that defendant broke into the car, and all went in, except witness and another; that witness, with the others, was fined, and placed in jail on the same charge of burglary for which defendant was^ tried — is sufiicient evidence of the witness' complicity to necessitate an instruction as to accomplice testimo- ny. Hamilton v. State, 26 Tex. App. 206, 9 S. W. 687. On a trial for theft, where it was shown that P. received a sack of money from defendant, knowing that he was arrested for stealing its and carried it away to conceal it, a charge, in connection with his evidence, requested by de- fendant, upon the law of accomplice testimony, should have been given. Kelley V. State, 34 Tex. Or. R. 412, 81 S. W, 174. 68 Walker v. State, 44 S. E. 850, 118 Ga. 34 ; Powell v. State, 81 S. E. 396, 14 Ga. App. 484. 87 Smith V. State, 28 Tex. App. 309, 12 S. W. 1104. Effect of remaining silent. Where, on a trial for murder, certain Mexicans were witnesses for the state, and at the time of the murder, which they witnessed, they were among strangers, hundreds of miles froip their homes and were assisting in driving cattle to a distant market, did not know the English language, and defendant and deceased were Americans, in whom they had no par- ticular interest, it was held that the mere fact of their having remained silent as to the murder did not call for instructions on accomplice testi- mony. O'Connor v. State, 28 Tex. App. 288, 13 s: W. 14. 345 CREDIBILITY OP WITNESSES §175 quest, on accomplice testimony, although he denies any connec- tion with the crime.** § 175. Sufficiency of instructions on right to convict upon ac- complice testimony lit jurisdictions where the jury may convict upon the uncor- roborated testimony of an accomplice, it is proper for the court to instruct that, while such testimony is to be received with cau- tion, the jury will be justified in acting upon it if they believe it to be true^** and in such a jurisdiction an instruction that an ac- 88 Scales V. State, 217 S. W. 149, 86 Tex. Or. R. 433. 8 8 IT. S. (O. C. A. Tex.) Blsenberg V. U. S., 261 F. 598. * Colo. Wisdom V. People, 11 Colo. 170, 17 P. 519. Conn. State V. Maney, 54 Conn. 178, 6 A. 401. 111. People V. Rees, 109 N. B. 473, 268 111. 585 ; People v. Harris, 105 N. B. 303, 263 111. 40ft; People v. Darr, 179 111. App. 130, judgment affirmed 104 N. B. 389, 262 111. 202. La. State v. Swindall, 56 So. 702, 129 La. 760 ; State v. Prudiomme, 25 I/a. Ann. 522; State v. Bayonne, 23 La. Ann. 78. Mo. State v. Cummins, 213 S. W. 969, 279 Mo. 192; State v. Shelton, 122 S. W. 732, 223 Mo. 118 ; State v. Donnelly, 130 Mo. 642, 32 S. W. 1124 ; State V. Minor, 117 Mo. 302, 22 S. W. 1085.' Neb. OUve v. State, 11 Neb. 1, 7 N. W. 444. N. C. State v. Register, 46 S. B. 21, 133 N. C. 746. Vt. State V. Hier, 63 A. 877, 78 Vt. 488. See State v. Greenburg, 53 P. 61, 59 Kan. 404. - Instructions held proper -nrithin rnle. An instruction to the effect that the testimony of an accomplice is competent evidence, the credibility of such accomplice is for the jury to pass upon as they do upon any other witness, that, while the testimony of an accomplice will sustain a verdict when uncorroborated, such testimony must be received with great caution, but, if it carries conviction, and the jury are convinced of its truth, they should give to it the same effect as would be allowed to a witness who is in no way Implicated in the ofEense, is not erroneous. Shiver v. State, 27 So. 36, 41 Fla. 630. An instruction that the testimony of an accomplice is admissible, yet, when uncorroborated by some person, not implicated in the crime, as to matters connecting de- , fendant with its commission, ought to be received by the jury with great cau- tion, and they ought to be fully satis- fied of its truth before convicting de- fendant on such testimony, but they are at liberty to convict on the uncor- rohorated testimony of an accomplice, if they believe his statements, and that the facts sworn to by him estab- lish defendant's guilt, fairly presents the law. State v. Crab, 121 Mo. 554, 26 S. W. 548. Where the court charg- ed "that they [the jury] might convict on the unsupported testimony of an accomplice, but that it was dangerous and unsafe to do so; but if the story of the accomplice, taken with the oth- er facts and circumstances in the case, carry conviction to the minds pf the jury, then it is their duty to con- vict. The jury must be satisfied, be- yond a reasonable doubt, of the guilt of the defendant, before they can con- vict," it was held that such instruc- tion was not objectionable as tending to mislead the jury as to the weight to be given to an accomplice's testi- mony. State V. Barber, 113 N. C. 711, 18 S. B. 515. Instrnctions lield not erroneous as authorizing a conviction on the uncorroborated testimony of an accomplice. An instruction that the testimony of an accomplice is admis- sible, yet, when uncorroborated, ought to be received with great caution, and § 175 INSTRUCTIONS TO JURIES 34© complice must be corroborated requires too high a degree of proof from the state.'* An instruction as to the right to convict upon the uncorrobo- rated testimony of an accomplice should inforni the jury as to- what is meant by corroboration.'^ In such an instruction, telling the jury to weigh the testimony of an accomplice with great cau- tion and that they may disregard it altogether, it is not error to add, "if they believe it to be untrue," or "if they have a reason- that the jury can convict on the un- corroborated testimony of an accom- plice if they believe it to be true, and if the facts sworn to by such v^itness will establish the guilt of defendant. State V. Dawson, 124 Mo. 418, 27 S. W. 1104. An instruction, in a prose- cution for theft, that, in case the jury believed a certain person to be an accomplice, "you should consider with greater care whether the story he has told on the witness stand is corrobo- rated by any fact or facts testified to by other witnesses," and that "you should not decide the case on the tes- timony" of thfe alleged accomplice alone, but upon all the evidence. State V. Harras, 65 P. 774, 25 Wash. 416. In a prosecution for burglary, an instruction that, "while it is a rule of law that a person may be convicted on the uncorroborated testimony of an accomplice, still a jury should always act on 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 on such tes- timony alone, unless satisfied beyond all reasonable doubt of its truth," was not erroneous, in that it implied that the jury might convict on the evi- dence of the accomplice alone. State v. Coates, 61 P. 726, 22 Wash. 601. Instructions Iield susceptible of a construction prejudicial to ac- cused. Where, in a prosecution for breaking and entering a storehouse, the court charged that it was unsafe to convict on uncorroborated testimo- ny of an accomplice, but, if, the jury is Convinced of the truthfulness of the accomplice's testimony and sees fit to convict on such testimony, if the trial judge refused to set aside the verdict, the Supreme Court will let it stand according to its decision, that some- times the state cannot make out aj case without using an accomplice's- testimony, as an outrageous crime may be committed, and, if it were not permitted the use of such testimony, criminals would sometimes be permit- ted to go free,' it was held that the charge might have been construed to the prejudice of accused. State Vv Clark, 67 S. E. 300, 85 S. G. 273. 7 State V. Black, 143 Mo. 166, 44 S. W. 340. Ti State V. Sprague, 50 S. W. 901,. 149 Mo. 409, followed and approved 149 Mo. 425, 50 S. W. 1117 ; Smith v. State, 67 P. 977, 10 Wyo. 157. Instructions Iield to sufficiently define "corroborate." An instruc- tion that the testimony of an accom- plice, while admissible, must be cor- roborated by some other witness or witnesses not implicated in the crime as to facts connecting defendant with its commission, and should be receiv- ed with great caution, but if the jury were satisfied that the accomplice's testimony was true, and that such tes- timony was sufficient to establish de- fendant's guilt, then they could con- vict on it alone, was proper, and not objectionahle for the court's failure to define "corroborate." State v. Bob- bitt, 114 S. W. 511, 215 Mo. 10. A charge that accused in a murder case could be convicted on the uncorrobo- rated testimony of an accomplice alone if the jury believed the accom- plice's statements to be true and suf- ficient in proof to establisji accused's guilt, but the testimony of an accom- plice when not corroborated by some person not implicated in the crime as to matters material to the iss.ue ought to be received with great caution, etc.,. sufliciently explains the meaning of the word "corroborate." State v. Sas- saman, 114 S. W. 590, 214 Mo. 695. 347 CREDIBILITY OF WITNESSES § 176 able doubt of its truth." ''* An instruction that, in order to deter- mine the truth or falsity of the testimony of an accomplice, it should be weighed by the same rule as the testimony of any other witness is proper,'* and is not objectionable as leading the jury to think that they need not consider the turpitude of the accomplice in determining the weight to be given to his testi- mony.'* In jurisdictions where corroboration of an accomplice is required, a charge on accomplice testimony, to be sufiScient, should define an accomplice, state the statutory inhibition against a conviction on accomplice testimony without corroboration, tell the jury, in substance, that the corroborating evidence, to be sufficient, must be as to some material matter and must tend to connect the accused with the commission of the offense, and apply the law to the facts. '^ A charge, which authorizes a con- viction on accomplice testimony, if it is believed and the re- quirements as to the corroboration of such testimony are met, should also state that it is necessary that the accomplice testimony, in connection with the other evidence, should show defendant's guilt beyond a reasonable doubt.'® An instruction as to the value of accomplice testimony in the language of a statute regulating the subject will ordinarily be sufficient." § 176. Sufficiency of instructions on corroboration of accomplice In jurisdictions where corroboration of an accomplice is not required by statute it has been held that, in a proper case, it may not be error to instruct that the testimony of an accomplice may be corroborated by the circumstances given in evidence.'* In jurisdictions where the statute requires such corroboration, instructions which follow the language of the statute will ordi- narily be sufficient, if no others are asked.'* Under such a stat- 72 Brown v. State, 72 Miss. 990, 18 24 S. W. 885; Elizando v. State, 31 So 431 : Wilson v. State, 71 Miss. 880, Tex. Cr. R. 237, 20 S. W. 560 ; Lock- 16 So 304. ^lart v. State, 29 Tex. App. 35, 13 S. 73 Butt V. State, 98 S. W. 723, 81 W. 1012. Ark 173, lis Am. St. Eep. 42. Instructions ield sufficient. Un- T4 State V. Weldon, 71 S. E. 828, 89 ^f\.^ statute Providing mat a con- «? C S08 viction cannot be had on the testimo- '-■'ci. 'j*! ij cij.„*„ nr,o c! TKT roo nv of an accomplice unless corrobo- 75 standfieldv State, 208 S.W. 532, ^^^^^^ ^ charge that a conviction -Lex. ivr. K. 4d(. cannot be had on an accomplice's testi- 'm ^'^^^^^ TircQ ' ' ™oiy "only," unless corroborated, and 85 Tex. Or. K. 459. ^-j^^f. ppQ^f of the death of deceased is 7 7 Henderson v. Commonwealth, 91 not sufficient to justify a Qon viction g. W. 1141, 28 Ky. Law Rep. 1212, 122 on the accomplice's testimony "alone," Ky. 296. is not erroneous, the words "only" 7 8 State V. Shafeer, 161 S. W. 805, and "alone" being implied in the 253 Mo. 320. statute. State v. Smith, 77 N. W. 499, 7» Vaughan v. State, 58 Ark. 353, 106 Iowa, 701. 176 INSTRUCTIONS TO JURIES 348 ute an instruction which fails to define the character of corrobo- ration and the nature of the corroborative testimony required will be erroneous.*" In a proper case the court may instruct that the required corroboration of an accomplice may be drawn "from the circumstances of the case shown in evidence." *^ The defendant is entitled to an instruction that, if the jury do not believe the evidence tending to corroborate the testimony of the accomplice, they must acquit the accused.*'' Under the usual wording of such statutes it is error, in some jurisdictions, to charge merely that the jury cannot convict alone. on accomplice testimony,** but they should be expressly informed that the tes- timony of an accomplice, to sustain a conviction, must be cor- roborated by other evidence tending to connect the accused with the commission of the crime charged,** and the accused is en- 80 state V. Holter, 138 N. W. 953, 30 S. D. 353; Id., 142 N. W. 657, 32 S. D. 43, 46 L. R. A. (N. S.) 376, Ann. Gas. 1916A, 193; Mitchell v. State, 42 S. W. 989, 38 Tex. Or. R. 325. Instructions lield insufficient within rale. An instruction, in a trial for robbery, that if the jury be- lieve, beyond a reasonable doubt, from the testimony of an accomplice who testified for the people, that de- fendant is guilty of the offense charg- ed, and if they believe from the evi- dence, "outside of that which tends to connect the defendant with the com- mission of the offense, other than shown in the commission of the of- fense itself and the circumstances thereof," they should find defendant guilty, failed to state with sufllcient clearness the rule that testimony of an accomplice is insufficient of itself to justify conviction, and the degree of proof sufficient to corroborate such testimony. People v. Lynch, 55 P. 248, 122 Cal. 501. An instruction that slight evidence that the crime was committed by defendant, and identify- ing him with it, will corroborate the accomplice, and warrant a finding of guilty. Chapman v. State, 34 S. E. 369, 109 Ga. 157. 81 State V. Shafter, 161 S. W. 810, 253 Mo. 320. 82McDaniels v. State, 50 So. 324, 162 Ala. 25. 83 Holllngsworth v. State, 189 S. W.' 488, 80 Tex. Or. R. 299; Loessin V. State, 81 S. W. 715, 46 Tex. Or, R. 553. 84 State V. Wong Si Sam, 127 P. 683, 63 Or. 266 ; Crowell v. State, 24 Tex. App. 404, 6 S. W. 318; Watson v. State, 9 Tex. App. 237. Instructions held sufficient -within rule. An instruction that a conviction cannot be had on the testi- ' mony of an accomplice, unless corrob- orated by other evidence which in it- self tends to connect him with the of- fense, etc. Rain v. State, 137 P. 550, 15 Ariz. 125. Under a statute provid- ing that an accused cannot be convict- ed by the evidence of an accomplice, unless corroborated by other evidence "tending to prove" defendant's com- plicity, an instruction that a convic- tion for receiving stolen goods cannot be had on the testimony of the thief, unless corroborated by such evidence as tends to impute to defendant knowledge that the goods were stolen, is not erroneous in using the expres- sion "tends to impute," instead of "imputes." People v. Ribolsi, 89 Cal. 492, 26 P. 1082. A "charge, "If you believe that an accomplice has testi- fied in this case, and you believe be- yond all reasonable doubt from his testimony, to a moral certainty, that the defendant is guilty of the alleged offense in the information mentioned, •and then in connection therewith you believe there is evidence outside of that which tends to connect the de- fendant with the commission of the offense, outside of showing the com- 349 CRBDIBILITT OF WITNESSES §176 titled to an instruction that the corroboration is not sufficient, if mission of the offense itself and the circumstances thereof, then it would be your bounden duty to convict him." People V. Clough, 73 Cal. 348, 15 P. 5. An instruction that testimony to corroborate an accomplice is sufficient "if it tends to connect defendants with commission of the ofEense, though of itself, standing alone, it would be entitled to but little weight." People V. Blunkall, 161 P. 997, 31 Cal. App. 778. In homicide, a charge in the language of the statute, providing that a conviction cannot be had on the testimony of an accomplice, im- less corroborated hy other evidence which in itself tends to connect de- fendant with the commission of the ofEense, etc., and, in concluding, de- clared that the corroborative evidence « was sufficient "if it tended to connect defendant with the commission of the ofEense." People v. Balkwell, 76 P. 1017, 143 Cal. 259. An instruction, re- quiring testimony of accomplice to be corroborated by additional evidence relating to facts and circumstances tending to show that defendant com- mitted the crime either alone or with the witness. State v. Price, 160 N. W. 677, 135 Minn. 159. Where an accom- plice testifies for the state, a charge that his evidence, to warrant a con- viction, must be corroborated, both as to its truth and the identity of the de- fendant, by other evidence which "satisfactorily amounts to the swear- ing of one credible witness, either in direct evidence or from facts and cir- cumstances," is not prejudicial to de- fendant. Clapp V. State, 94 Tenn. 186, 30 S. W. 214. A charge that, though the accomplice has testified to the essential facts of the crime, there cannot be a conviction on her evidence alone, but there must be other evi- dence tending to show such fact, and that the corroborative evidence need not be direct and positive, but such facts and circumstances as tend to support her testimony, and which sat- isfy the jury that she is worthy of credit as to the essential facts, are sufficient corroboration, and that it is for the jury to say, from all the facts and circumstances in evidence, whether she has heen sufficiently cor- roborated, is not erroneous, as It could not be understood by the jury to refer to anything else than the concrete case and the facts before them. Beeson v. State, 130 S. W. 1006, 60 Tex. Or. R. 39. In a prose- cution for seduction, a charge upon the testimony of an accomplice, "that the corroborating evidence need not be direct and positive. Independent of the testimony of [the 'accomplice], but proof of such facts and circumstanc- es as tend to support her testimony, and which satisfy the jury that she is worthy of credit as to the facts es- sential to constitute the ofEense," etc., was not erroneous. Capshaw v. State 166 S. W. 737, 73 Tex. Cr. R. 609. Where the jury returned into court and asKed whether accused's testimo- ny could be used as corroborative of that of an accomplice, an instruction that any testimony in the case, other than the testimony of an accomplice, believed by the jury to be true, might be considered In corroboration of the testimony of an accomplice, provided it tended materially to connect de- fendant^ with the commission of the crime, was proper. Morawitz v. State, 91 S. W. 227, 49 Tex. Cr. R. 366. Though it is better practice to follow the statute, providing that a conviction cannot be had on accom- plice testimony, "unless corroborated by other evidence tending to connect defendant with the ofEense commit- ted," a charge is not erroneous be- cause merely requiring corroboration by evidence tending in "some degree" to connect defendant with the ofEense. McKinney v. State,-88 S. W. 1012, 48 Tex. Cr. R. 402. An instruction re- lating to the conviction of one charged with crime on the testimony of an accomplice that there should be evi- dence tending to show that accused took part in the actual commission of the crime sufficiently stated what con- stitutes a material fact on whibh a corroboration of the accomplice Is necessary. Clay v. State, 86 P. 17, 15 Wyo. 42. Corrolioration on question of identity of accused. An instruction §176 INSTRUCTIONS TO JURIES 350 it merely shows the commission of the offense or the circum- stances thereof,*® and in some cases it may be error to refuse to charge, not only that there must be evidence tending to connect the defendant with the commission of the alleged ofifense, but that this requires more than such evidence as merely raises a sus- picion of guilt.*® Under the Texas statute requiring that, in order to convict a defendant upon the testimony of an accomplice, it must be cor- roborated by other evidence tending to connect the accused with the crime charged, there is a long line of cases holding that the jury should be told that in order to convict they must believe the testimony of the accomplice to be true and that it connects the defendant with the ofifense alleged against him, not merely that it tends to show such connection.*'' A charge, calculated to that the testimony of accomplices should be carefully scrutinized, and that, unless corroborated by other witnesses, especially as to the identity of the accused as the person against whom the accomplices have testified, such testimony is InsuflBcient to con- vict, is correct ; as it sufficiently pre- sents the necessity for corroboration on the question of identity. State v. Walker, 98 Mo. 95, 9 S. W. 646. 85 State V. Smith, 72 N. W. 279, 102 Iowa, 656 ; Moore v. State, 170 P. 519, 14 Okl. Or. 292; Fisher v. Territory, 87 'P. 301, 17 Okl. 455. Instructions held sufficient. An instruction that the corroboration of an accomplice which will justify a conviction cannot come from facts that merely showed the commission of the offense or the circumstances thereof, leaving it to the jury to say whether or not there is corroboration in the other evidence, is correct. State V. Jackson, -73 N. "W. 467, 103 Iowa, 702. 8 People V. Williams, 1 N. Y. Or. R. 386, 29 Hun, 520. 87 Savage v. State, 170 S. W. 730, 75 Tex. Cr. R. 218 ; Baggett v. State, 144 S. W. 1136, 65 Tex. Cr. R. 425; Long V. State, 138 S. W. 401, 62 Tex. Or. R. 540 ; Franklin v. State, 138 S. W. 112, 62 Tex. Cr. R. 433; Shrewder V. State, 133 S. W. 281, 60 Tex. Or. R. 659; Grant v. State, 132 S. W. 350, 60 Tex. Or. R. 358; Ware v. State, 129 S. W. 836, 60 Tex. Or. R. 38 ; Maibaum v. State, 128 S. W. 878, 59 Tex. Or. R. 386; Jordan v. State, 128 S. W. 139, 59 Tex. Cr. R. 208; , Dorham v. State, 125 S. W. 397, 58 T4x. Or. R. 288; Wadkins v. State, 124 S. W. 959, 58 Tex. Or. R. 110, 137 Am. St. Rep. 922, 21 Ann. Cas. 556 ; Pace V. State, 124 S. W, 949, 58 Tex. Or. R. 90; Snelling v. State, 123 S. W. 610, 57 Tex. Or. R. 416; Camp- bell V. State, 123 S. W. 583, 57 Tex. Cr. R. 301; Fruger v. State, 120 S. , W. 197, 56 Tex. Of. R. 393 ; Maples v. State, 119 S. W. 105, 56 Tex. Or. R. 99; Gardner v. State, 117 S. W. 148, 55 Tex. Or. R. 400 ; Newman v. State, 116 S. W. 577, 55 Tex. Ci-. R. 273; Dates V. State, 108 S. W. 859, 51 Tex. Cr. R. 49. See Middleton v. State, 217 S. W. 1046, 86 Tex. Cr. R. 307. Instructions beld erroneous as not requiring the jury to believe testimony of accomplice to be true. An Instruction that a certain witness was an accomplice, and the jury could not evict accused, unless it found from the evidence that the tes- timony of such witness had been cor- roboi'ated by other evidence connect- ing accused with the offense charged in either the first or second counts, and that the corroboration was not sufficient if it merely showed the commission of the offense charged, was erroneous. Tims v. State, 130 S. W. 1003, 60 Tex. Cr. R. 58. An in- struction that a conviction cannot be had on testimony of an accomplice, 351 CKBDIBILITT OF WITNESSES §177 lead the jury to think that the corroboration of the accomplice on main facts other than the connection of the defendant with the alleged crime is sufhcient, is erroneous.** § 177. Corroboration of one accomplice by another Where the state relies mainly upon the testimony of two or more accomplices, the failure or refusal of the judge to charge unless corroborated by other eTidence to connect defendant with the offlense, and corroboration is not sufficient if it merely shows commission of the of- fense, followed by a definition of "ac- complice," but nowhere applying the law to the facts, nor charging that Ms testimony must be considered true by the jury, was defective. Floyd v. State (Tex. Cr. App.) 117 S. W-. 138; Close V. State, 117 S. W. 137, 55 Tex. Cr. R. 380. A charge that the jury cannot find defendant guilty upon the testimony of an accomplice unless the same is corroborated by other evi- dence is erroneous in that it author- izes a conviction if the accomplice's testimony is corroborated, regardless as to whether it is true or not. Cren- shaw V. State, 85 S. W. 1147, 48 Tex. Cr. R. 77. A charge, in a prosecution for seduction, that the prosecutrix is an accomplice of defendant, and no conviction .can be had on her testi- mony, unless corroborated by evi- dence sufficient to satisfy the jury of the truth of the evidence of prosecu- trix. Lemmons v. State, 125 S. W. 400, 58 Tex. Cr. R. 269. A charge that prosecutrix, on a trial for seduc- tion, was an accomplice with accused in the commission of the offense, and that accused could not be convicted on her testimony alone, unless it was corroborated by other evidence con- necting accused with the offense, but that such corroborating evidence need not be direOt and positive, or suffi- cient to convict independent of the accomplice, but simply such as would support her testimony and satisfy the jury' that she was worthy of credit was erroneous. Vantreese v. State, 128 S. W. 383, 59 Tex. Cr. R. 281. Instructions held nof^objection- alle as authorizing a conviction on a less amount of proof than re- quired by statute. Where, after charging that the jury could not con- vict on the testimony of an accom- plice or any number of accomplices, unless corroborated by other evidence connecting defendant with the offense and that the corroboration was not sufficient if it merely showed the com- mission of the offense, the court de- fined the word "accomplice," and then charged that two of the state's wit- nesses were accomplices, and that the jury could not find defendant guilty on their testimony unless satisfied that the same was true, and that it had been corroborated by other evi- dence that defendant did in fact com- mit the offense, that the evidence of one accomplice could not be corrobo- rated by another, but that the jury must be satisfied that the testimony of each accomplice was true and cor- roborated by other evidence that de- fendant, in fact, committed the of- fense, it was held that such instruc- tions were not objectionable as au- thorizing a conviction if the jury found that the accomplices testified truthfully. McCue v. State (Tex. Cr. App.) 103 S. W. 883. A charge, in a prosecution for larceny, that anoth- er was an accomplice if any offense was committed, and the jury could not find accused guilty upon the ac- complice's testimony unless they be- lieved it to be- true and that it show- ed accused guilty as charged, and could not convict even then unless they believed that there was evidence outside of the accomplice's, tending to connect accused with the offense charged, and believed beyond a rea- sonable doubt from ^1 the evidence that accused was gtHlty. Brown v State, 124 S. "W. 101, 57 Tex. Cr. R. 570. 88 State v. Hughes, 75 So. 416, 141 La. 578. § 178 INSTRUCTIONS TO JUEIBS 352 that one accomplice cannot be corroborated by another will con- stitute error,** and in such case it is prejudicial error to instruct that the defendant cannot be convicted upon the uncorroborated testimony of "an accomplice," instead of using the words "an accomplice or accomplices." '* H. Instructions on EiffBcr of False Testimony Effect of false testimony of accused, see ante, § 170. Invading province of jury, see ante, § 22. § 178. Necessity and propriety of instructions In some jurisdictions the rule is that, as the jury are the sole judge of the credibility of the witnesses, it is their right, untram- meled by any direction, check, or restraint on , the part of the court, to adopt their own rules or modes of testing the credit to which a witness is entitled, and that therefore the court cannot be required to give as a charge the legal maxim, "falsus in uno, falsus in omnibus." *^ In other jurisdictions the propriety or necessity of giving an instruction as to the effect of a false state- ment by a witness on his entire testimony rests largely in the discretion of the trial court,^ and failure to so instruct will not be error, where no request is made for such a charge.** In some jurisdictions a charge stating the statutory rule that a witness false in one part of his testimony is to be distrusted in others is proper.** In most jurisdictions it is proper to give an instruc- 89 Lockhead v. State, 213 S. W. 653, g. W. 267, 274 Mo. 625 ; Lloyd v. 85 Tex. Or. R. 459 ; Franklin v. State, Meservey, 108 S. W. 595, 129 Mo. App. 110 S. W. 909, 53 Tex. Or. R. 547; 636; Paddock v. gomes, 51 Mo. App. Whitlow V. gtate (App.) 18 S. W. 865 ; 320. MeConnell v. State (App.) 18 S. W. vt. Doyle v. Melendy, 75 A 881 645 ; Hannahan. v. State, 7 Tex. App. 33 vt. 339. 664; Heath V. State, 7 Tex. App. 464. 9s Rumoh v StatP ino Mo. 437, 25 S. W. 366; TItterington V. State, 106 N. W. 421, 75 Neb. 153 ; State V. Ealce, 123 N. W. 708, 24 S. D. 111. 361 CREDIBILITY OF WITNESSES § 181 ed,*^ and in one jurisdiction, under a statute, an instruction in- vades the province of the jury which informs them that they may disregard the entire testimony of such a witness, except as he is corroborated by other evidence; it being considered that the jury have the right to believe or disbelieve any part of such testimony, whether corroborated or not,** but in this jurisdiction it is also considered that, while an instruction containing such a qualification is technically wrong, it is not ordinarily a ground for reversal.** The jury should not be led to think that they have a discretion as to whether to reject testimony which they may believe to be false, and the above qualifying clause as to cor- roboration is inapplicable in the case of such a belief.'^ I. EifPECT OF Making Contradictory Statements Invading province of jury, see ante, §§ 23, 24. § 181. Necessity of instructions The general rule is that, where there is a sufficient basis in the evidence, a party is entitled on request to a charge that, if the jury believe that a witness has made statements in conflict with his testimony as to material facts, they may consider such contra- diction in determining his credibility,*® and in a proper case it will be error to refuse to charge that a witness may be impeached by showing that at other times and places he has made state- ments materially different from his testimony on the. stand, and that where a witness is shown to have made such contradictory statements the jury may disregard his testimony, except so far as corroborated.*' Where testimony of a witness is in direct con- 82 Minich v. People, 9 P. 4, 8 Colo. & H. R. R. Co., 65 Hnn, 578, 20 N. 440. Y. S. 557. 3 3 State V. Kanakaris, 169 P. 42, 54 Implied contradiction. It is er- Mont. 180 ; State v. Penna, 90 P. 787, ror to refuse to charge that a person 35 Mont. 535. who attaches his name as a witness s* State V. Penna, 90 P. 787, 35 to a will impliedly certifies that the Mont. 535 ; State v. Lee, 87 P. 977, testator is competent to make a will, 34 Mont. 584. and while the law will permit him to 8 5 Spick V. State, 121 N. W, 664, subsequently testify to the contrary, 140 Wis. 104. yet the jury in weighing his testi- 8 6 Ala. Birmingham Ry., Light & mony may consider the fact of such Power Co. v. Cockrum, 60 So. 304, 179 implied contradiction. Stark v. Ala. 372 ; Bennett v. State, 49 So. Cress, 4 Ohio App. 92. 296, 160 Ala. 25; Wilkerson v. State, »'■ People v. Corey, 97 P. 907, 8 Oal. 37 So. 265, 140 Ala. 165; Harris v. App. 720; Owens v. State, 32 So. 152, State, 96 Ala. 24, 11 So. 255. 80 Miss. 499; State v. Chandler, 112 Colo. Clammer v. Eddy, 92 P. 722, P. 1087, 57 Or. 561. 41 Colo. 235. Application of rule to prosecnt- N. T. Lennon v. New York Cent, ing witness. Where the verdict de- § 182 INSTRUCTIONS TO JURIES 362 tradiction to his testimony on a former trial, it is error to re- fuse an instruction that, if the jury believe the former testimony, they must ignore the testimony in the instant case.^* § 182. Propriety and sufficiency of instructions An instruction which permits the jury to disregard the testi- mony of a witness, except as he is corroborated, on account of having piade contradictory statements as to material matters, without requiring the jury to believe that he has knowingly and willfully testified falsely as to such matters, is erroneous,** as is an instruction which authorizes the impeachment of a witness because of conflicting statements with respect to immaterial mat- ters.*" It is not improper to instruct that testimony as to contra- dictory statements of a witness is uncertain and somewhat unre- liable,*^ and instructions that the jury may disregard the entire testimony of a witness who has been contradicted, although they ose of shielding themselves, the court should direct the attention of the jary thereto, and to the claim of the defendant arising therefrom. People V. Marks, 90 Mich. 555, 51 N. W. 638. 6 7 Shaw v. State, 29 S. B. 477, 102 Ga. 660 ; Stevens v. People, 74 N. E. 786, 215 111. 593. 6 8 State V. Feeley, 92 S. W. 663, 194 Mo. 300, 3 L. R. A. (N. S.) 351, 112 Am. St. Rep. 511. 69 People V. Akey, 124 P. 718, 163 Cal. 54. § 185 INSTRUCTIONS TO JURIES CHAPTER XII INSTRUCTIONS ON PRESUMPTIONS AND INFERENCES A. PkESUMPTIONS and iNFERiaJCES IN CiVIL CASES § 185. Inferences in general. 186. Presumption of innocence. 187. Necessity of request for instructions. B. Pbesumptions in Ceiminai. Cases 1. Presumption of Innocence 188. Necessity of instructions. 189. Sufficiency of instructions on presumption of innocence. 190. Instructions as to duration of presumption of innocence. 191. Instructions as to nature and purpose of such presumption. 2. Other Presumptions and Inferences Than That of Innocence 192. Presumptions and inferences favorable to defendant. 193. Unfavorable presumptions. . 194. Presumption that one intends the natural and proximate econsequen- ces of his acts. 195. Inferences from possession of stolen goods. 196. Inferences from flight of accused. G. Failuee to Peoduce, and Suppbbssion or Fabbioation of, Evidence 197. Rule in civil cases. 198. Rule in criminal cases. D. FAiLxrEE OP Paety in Oivn, Case to Tesuft 199. In general. E. Failtjeb of Accused to Testify 200. Propriety of instructions at common law. 201. Propriety and necessity of instructions under statutes. 202. Cautioning jury against considering failure to testify. Instructions criticized as invading province of jury, see ante, §§ 58-62. A. Presumptions and Inferences in Civil Cases § 185. Inferences in general As has been shown in a preceding chapter,^ the question of what inferences of fact shall be drawn from the evidence is en- tirely for the jury and the court cannot be required to instruct the jury to consider whether certain inferences may not be drawn from a particular state of facts they may find to exist." However, the court may lay down general rules to guide the jury in their de- 1 Ante, §§ 58-62. 2 Farrell v. G. O. Miller Co., 179 N. W. 566. 369 INSTRUCTIONS ON PRESUMPTIONS AND INFERENCES § 186 liberations, and in a proper case instructions may be required that fraud is not to be presumed,* that no presumption of negligence arises from the mere fact of an accident,* that a defendant, charged with negligently injuring another, is presumed to have complied with relevant statutes,^ as to presumptions arising from a failure to object to an account rendered,^ or as to presumptions from the failure of a party to object to a proposed course of action for the purpose of determining the facts at issu.e.' A delay in bringing action may be such or may' be under such circumstances as to entitle defendant to an instruction that the jury may or should consider it in determining whether an alleged debt has been in some manner satisfied.* It is proper to tell the jury that they are the sole judges of the facts, and that it is for them to determine who is telling the truth and what inferences shall be drawn from the testimony. Such an instruction is not too indefinite and uncertain as placing no limit upon the jury in drawing inferences from the facts.* Where the circumstances of the case are such as to call for the application of the rule that a 'Condition once shown to exist is presumed to continue until the contrary is shown, the court should ordinarily, in stating such rule, inform the jury that such presumption is one of fact, which may be rebutted by circumstantial as well as direct evidence.^* § 186. Presumption of innocence Where the issues in a civil suit involve a charge of wrongdoing or an accusation of crime against a party, the court should not ignore, in its instructions, the presumption of innocence, as by directing the jury to presume the continuance of a course of con- duct in violation of law," although the court is not required to instruct as to the presumption of innocence, if the jury are told that the presumption of law is against wrongdoing,^^ and it has been held that an instruction that the law presumes that the per- son so accused is innocent is erroneous, as directing the jury to look for more conclusive proof than in ordinary civil cases. ^* In 8 Price V. Heath, 41 Hun (N. Y.) » People v. Williams, 175 N. W. 187, 585. 208 Mich. 586. 4 Latremouille v. Bennington & R. i» Atchison, T. & S. F. Ry. Co. v. Ry. Co., 22 A. 656, 63 Vt. 336. Lloyd, 75 P. 478, 68 Kan. 369. B Thayer v. Glynn, 106 A. 834, 93 n Rathbun v. White, 107P. 309, 157 Vt. 257. Cal. 248. 6 Johnson v. McCampbell, 11 Heisk, 12 Hale v. Matthews, 118 Ind. 627, (Tenn.) 27, 21 N. E. 43. 7 Schlesinger v. Springfield Fire & i^ state ex rel. Detroit Fire & Ma- Marine Ins. Co., 58 N. T. Super. Ct. rine Ins. Co. v. Ellison, 187 S. W. 23, 112, 9 N. Y. Supp. 727. 268 Mo. 239, quashing record, (App.) 8 Hahenthal v. Gibbons, 150 N. W. Rice v. Detroit Fire & Marine Ins. 1067, 168 Iowa, 630. Co, of Detroit, Mich., 176 S. W. 1113. INST.TO JUBIES— 24 187 INSTRUCTIONS TO JURIES 370 such a case, in the absence of a request for an instruction -on the presumption of innocence, it will usually not be error to fail to give it.^* § 187. Necessity of request for instructions In a civil case the general rule is that the court need not in- struct as to a presumption of fact or legal inference unless spe- cially requested so to do.^^ Thus the failure to explain the doc- trine of res ipsa loquitur cannot be complained of, in the absence of a request embodying the instruction desired.^® B. Presumptions in Criminal Casbs 1. Presumption of Innocence § 188. Necessity of instructions As a general rule the defendant in a criminal prosecution is entitled to have the jury instructed that he is presumed to be in- nocent until his guilt is established by competent evidence be- yond a reasonable doubt," and in some jurisdictions the duty so 14 Treschman v. Treschman, 61 N. B. 961, 28 Ind. App. 206. 15 Ga. Charleston & W. C. R. Co. V. Brown, 79 S. E. 932, 13 Ga. App. 744; Brooks v. Griffin, 73 S. E. 752, 10 Ga. App. 497 ; Randall v. State, 60 S. E. 328, 3 Ga. App. 653. Ind. Cleveland, C, C. & St. L. Ey. Co. V. Lynn, 98 N. E. 67, 177 Ind. 311, modifying judgment on rehearing 95 N. B. 577. Iowa. Pfarr v. Standard Oil Co., / 157 N. W. 132, 176 Iowa, 577. Tex. Dupree v. Alexander, 68 S. W. 739, 29 Tex. Civ. App. 31. 10 Isley V. Virginia Bridge & Iron Co., 53 S. E. 841, 141 N. C. 220; Lyles V. Brannon Carbonating Co., 52 S. E. 233, 140 N. C. 25. 17 Ala. Amos v. State, 26 So. 524, 123 Ala. 50 ; Harris v. State, 26 So. 515, 123 Ala. 69 ; Rogers v. State, 23 So. 82, 117 Ala. 192 ; Bryant v. State, 28 So. 40, 116 Ala. 445. D, C. Fields v. United States, 27 App. D. C. 433, certiorari denied and writ of error dismissed 27 S. Ct. 543, 205 U. S. 292, 51 L. Ed. 807. Fla. Long v. State, 28 So. 775, 42 Fla. 509. Ga. Pincli v. State, 100 S. E. 793, 24 Ga. App. 339; Innes v. State, 93 S. E. 229, 20 Ga. App. 719. 111. People V. Israel, 109 N. E. 969, 269 111. 284. Ind. Line v. State, 51 Ind. 172; Fisher v. State, 28 N. E. 565, 2 Ind. App. 365. Mich. People v. Yund, 128 N. W. 742, 163 Mich. 504; People v. De Fore, 64 Mich. 693, 31 N. W. 585, 8 Am. St. Eep. 863. Minn. State v. Sailor, 153 N. W. 271, 130 Minn. 84. Mo. State V. Hardelein, 70 S. W. 180, 169 Mo. 579. N. Y. People V. Van Houter, 38 Hun, 168. Okl. Jenkins v. State, '145 P. 500, 11 Okl. Cr. 168. Tex. Dugan V. State, 216 S. W. 161, 86 Tex. Cr. R. 130; Pierce v. State (Cr. App.) 22 S. W. 587; Mace V. -State, 6 Tex. App. 470 ; Stapp v. State, 1 Tex. App. 734. Wash. State v. Mayo, 85 P. 251, 42 Wash. 540, 7 Ann. Cas. 881. Wis. Fosdahl v. State, 89 Wis. 482, 62 N. W. 185. Instructions held improperly refused. A defendant is entitled to a charge that his innocence must be 371 INSTKUCTIONS ON PRESUMPTIONS AND INFERENCES § IBS to instruct rests upon the court in cases of misdemeanor, where intent is not an element of the crime, as well as in all other cases,^* and the refusal to give such an instruction will ordina- rily constitute reversible error. ^^ In some jurisdictions the refusal of such an instruction consti- tutes error, although the court has instructed that the jury can- not convict if they have a reasonable doubt of the guilt of the defendant.^** In other jurisdictions, however, an omission to charge on the presumption of innocence is not reversible error,, where the jury is fully instructed on the law of reasonable doubt.^^ presumed until the case proved against him Is, in all its material cir- cumstances, beyond any reasonable doubt; that to find him guilty, as charged, the evidence must be so strong and cogent as to show defend- ant's guilt to a moral certainty. Salm V. State, 89 Ala. 56, 8 So. 66. It is error to refuse to instruct the jury that "the law presumes the defendant to" be innocent of the commission of any crime, and this presumption con- tinues in his favor throughout the trial of the cause, step by step, and you cannot find the accused guilty of the crimes covered by the indictment until the evidence in the cause satis- fies you, beyond a reasonable doubt, of his guilt; and, so long as you or any one of you have a reasonable doubt as to the existence of any one of the elements necessary to consti- tute the several crimes above defined, the accused cannot be convicted of such crime." Aszman v. State, 123 Ind. 347, 24 N. E. 123, 8 L. R. A. 33, following Castle v. Same, 75 Ind. 146. On a trial for homicide, the re- fusal to ctarge that the jury must start out in the trial with the pre- sumption that accused is innocent, which presumption must be overcome by evidence so convincing that the jury can say beyond any reasonable doubt that accused is guilty, was er- roneous. People V. Stewart, 42 N. W. 662, 75 Mich. 21. Inferences from finding indict- ment. An instruction that the mere fact of an indictment found is no evi- dence of defendant's guilt, and that the presumption of innocence contin- ues with the defendant until the jury are convinced beyond a reasonable doubt of his guilt, was improperly re- fused where no similar instruction was given. People v. Krittenbrink, 109 N. E. 1005, 269 111. 244. The court, on the request of accused, must charge that the finding of the indict- ment did not create a presumption of guilt, where the district attorney stat- ed that the grand jury had heard the evidence and had found the indict- ment. State 7. Atkins, 67 So. 926, 136 La. 844. Conflicting presmnptions. There cannot be two presumptions in a crim- inal case; and so it is not erroneous to refuse an instruction that the pre- sumption ol innocence will prevail over the presumption of a criminal purpose. State v. Blaine, 124 P. 516, 45 Mont. 482. 18 People V. Potter, 89 Mich. 353, 50 N. W. 994. 19 Eowler v. State, 45 So. 913, 155 Ala. 21 ; Reeves v. State, 29 Fla. 527, 10 So. 901; Gardner v. State, 87 S. E. 150, 17 Ga. App. 410 ; Gentry v. State, 66 So. 982, 108 Miss. 505; Hampton v. State, 1 Tex. App. 652. 20 Gentry v. State, 66 So. 982, 108 Miss. 505; Franklin v. State, 92 Wis. 269, 66 N. W. 107. Effect of defining reasonable doubt. It is error to refuse to charge that accused is presumed inno- cent until proven guilty beyond a reasonable doubt, though the court gave an instruction defining a reason- able doubt. State v. Harrison, 57 P. 647, 23 Mont. 79. 21 State V. Douglas, 167 S. "W. 552, 258 Mo. 281 ; State v. Dudley, 149 S. W. 449, 245 Mo. 177 ; State v. Maupin, 93 S. W. 379, 196 Mo. 164. § 188 INSTRUCTIONS TO JURIES 372 In some jurisdictions this is the rule, if the attention of the court is not called to such omission,** and where the court has charged that the law presumes the defendant to be innocent, and that the burden is on the state to prove his guilt, it will ordinarily not be error to refuse additional instructions still further elucidating and emphasizing the rule of such presumption.** The court need not charge on the presumption of 'innocenccj where the only question is whether the defense of insanity has been established by satisfactory proof.** In some jurisdictions the rule is stated to be that the mere omission to charge on the presumption of innocence is not error, in the absence of a request so to charge.*® In other jurisdictions a request is not necessary to make it the duty of the court to charge that the defendant en- ters upon his trial with the presumption of innocence in his favor, and that such presumption remains with him throughout the trial, until his guilt is established by proof.*^ § 189. Sufficiency of instructions on presumption of innocence Instructions which tend to disparage the presumption of inno- cence are erroneous,*' and instructions which in efifect require the jury, before acquitting, to believe that the defendant is innocent. 22 Sylvia V. U. S. (C. C. A. Tenn.) 264 F. 593 ; State v. Smith, 65 Conn. 283, 31 A. 206 ; People v. Ostrander, 110 Mich. 60, 67 N. W. 1079, following Same v. Smith, 92 Mich. 10, 52 N. W. 67, and Same v. Graney, 91 Mich. 646, 52 N. W. 66; Commonwealth v. Rus- sogulo, 106 A. 180, 263 Pa. 93. See People v. Parsons, 105 Mich. 177, 63 N. W. 69. Compare People v. Macard, 73 Mich. 15, 40 N. W. 784. 23 State V. Linhofe, 97 N. W. 77, 121 Iowa, 632 ; State v. Edie, 147 Mo. 535, 49 S. W. 563. Refusal to cbarge that such pre- sumption is not a mere form. Where the court charged the jury In a criminal case that "every person is presumed by the law to be innocent, and the burden is on the government to prove tieyond a reasonable doubt that the defendants are guilty as charged in the Indictment," it was not error to refuse to charge further that "such presumption of Innocence is not a mere form which the jury may disregard at its pleasure, but a substantial part of the law of the land and binding upon the jury in this case." Garst v. United States (C. C. A. Va.) 180 F. 339, 103 C. C. A. 469. 21 Commonwealth v. Wheeler, 92 A. 718, 246 Pa. 528. 25 Hutto V. State, 7 Tex. App. 44 ; Frye y. Same, 7 Tex. App. 94. 2 s Finch V. State, 100 S. B. 793, 24 Ga. App. 339. 2 7 People V. Gerold, 107 N. E. 165, 265 111. 448, Ann. Cas. 19ieA, 636. Instructions not improper Trith- in rule. An instruction which, after stating the rule as to presumption of innocence, adds that in doubtful cas- es this presumption is sufficient to turn the scale in favor of the defend- ant, and that, unless the jury find accused guilty beyond a reasonable doubt, he is entitled to an acquittal. State V. Knapp, 71 N. B. 705, 70 Ohio St. 380, 1 Ann. Cas. 819, reversing judgment 25 Ohio Cir. Ct. R. 571. A part of an instruction on the burden of proof and presumption of inno- cence, to the efeect that, if accused "is the man who Is to blame you must say so, if he is not to blame you must say so." State v. Aurand, 136 P. 1139 76 Wash. 529. 373 INSTRUCTIONS ON PRESUMPTIONS AND INFERENCES §189 are erroneous, as depriving him of the benefit of such presump- tion,** as is an instruction that, if the jury are unable to reconcile all the evidence w^ith the theory of the innocence of the defendant, they should find him guilty;^* but an instruction that such pre- sumption is a piece of evidence to be taken into consideration and given such weight as the jury think it ought to have is not objec- tionable as allowing the jury to disregard the presumption.*" Where there is a statute enunciating the rule of the presumption of the innocence of one accused of crime, an instruction on such presumption which follows the language of the statute will ordi- narily be sufficient.*^ It is proper to, instruct that the defendant is presumed to be innocent until his guilt is proven by competent evidence beyond a reasonable doubt, and that if the jury have a reasonable doubt of his guilt they will acquit him.** Such an instruction is not 28 Vaughn v. State, 130 P. 1100, 9 Okl. Or. 121; Hedden v. State, 103 P. 737, 2 Okl. Cr. 588. 2» Territory v. Baca, 71 P. 460, 11 N. M. 559. 30 State V. Eossi, 102 A. 1030, 92 Vt. 187. 31 People V. liumsden, 125 N. Y. S. 1079, 141 App. Dlv. 158, judgment re- versed 94 N. E. 859, 201 N. T. 264. 3 2 Okl. Berry v. State, 111 P. 676, 4 Okl. Cr. 202, 31 L. R. A. (N. S.) 849. Tea:. McDowell v. State, 155 S. W. 521, 69 Tex. Cr. B. 545; Flournoy v. State, 122 S. W. 26, 57 Tex. Cr. R. 88; Adams v. State, 84 S. W. 231, 47 Tex. Cr. R. 347 ; Gaines v. State (Or. App.) 20 S. W. 397; Johnson v. State (Or. App.) 20 S. W. 368. Failure to include element of competency of evidence. A charge that "defendant is pr*umed to be in- nocent until his guilt is established by the evidence beyond a reasonable doubt" is not erroneous because the word "legal," as used in the statute, is omitted before the word "evidence." Williams v. State, 35 Tex. Or. R. 606, 34 S. W. 943. Giving an Instruction that every person is presumed inno- cent until his guilt has been establish- ed beyond a reasonable doubt was not error because of failure to state that the guilt must be proven by compe- tent evidence, where all the evidence admitted was competent, and in other instructions the jury had been fully instructed as to the essentials of the crime charged, and that they must be proven beyond a reasonable doubt. Dalzell V. State, 53 P. 297, 7 Wyo. 450. Use of "shown" in place of "proved." Use of the word "shown" in place of the word "proved" in a charge that accused is presumed to be innocent until his guilt Is "shown" by evidence beyond reasonable doubt, does not render the Instruction er- roneous. State v.-Cox, 175 S. W. 50, 264 Mo. 408. TTse of 'word "nnlesa" instead of "until." An instruction that "ev- eryone accused of crime is by law pre- sumed to be Innocent unless the con- trary", is proved by the evidence be- yond a reasonable doubt was not er- roneous for using the word "unless" instead of "until." People v. War- field, 103 N. B. 979, 261 lU. 293, re- versing judgment 172 111. App. 1. Other illustrations of proper or snfKcient instructions on pre- sumption of innocence. A state- ment that all the presumptions of the law, independent of the evidence, are in favor of innocence, and that every I)erson is presumed to be Innocent un- til he Is proven guilty. Everett v. People, 75 N. B. 188, 216 111. 478. A charge that the law raises no pre- sumption against the prisoner, but every presumption is in favor of his innocence; and, in order to convict, every material fact necessary to con- § 189 INSTRUCTIONS TO JURIES 374 objectionable as depriving the defendant of the right to have the jury know that he is in fact as well as in law presumed to be in- stitute the crime must be proved be- yond a reasonable doubt, and that, if they entertain any reasonable doubt upon any single fact or element neces- sary to constitute the crime, it was their duty to acquit. Burgess v. Ter- ritory, 19 !>. 558, 8 Mont. 57, 1 L. R. A. 808. A charge that it was not for defendant to prove his innocence, that the prosecution must satisfy the jury beyond a reasonable doubt of defend- ant's guilt, and that defendant must be acquitted unless his guilt was strictly and impartially proven. Peo- ple V. Graney, 91 Mich. 646, 52 N. W. 66, distinguishing People v. Potter, 89 Mich. 353, 50 N. W. 994, People v. Macard, 73 Mich. 15, 40 N. W. 784, and People v. Murray, 72 Mich. 10, 40 N. W. 29. An instruction that de- fendant was presumed to be innocent, and the burden was on the state to re- move the legal presumption of inno- cence by proving the guilt of accused beyond a reasonable doubt, was sufB- ciently comprehensive. McBeth v. State, 50 S. E. 931, 122 Ga. 737. In- struction that accused is presumed to be innocent and entitled to an acquit- tal in case of a reasonable doubt. State V. Anthony, 124 P. 475, 62 Or. 141. An instruction that every person charged with crime is presumed to be innocent until proven guiity by com- petent evidence, and that reasonable certainty is all that can be obtained. Thigpen v. State, 76 S. B. 596, 11 Ga. App. 846. Charges that defendant en- ters into the trial with a presumption of innocence, which Is a fact to be considered as evidence, and should not be disregarded, and that the bur- den Is on the state to convince the jury of defendant's guilt to the exclu- sion of every reasonable doubt and by evidence that overcomes the presump- tion of innocence. Neilson v. State, 40 So. 221, 146 Ala. 683. A charge that a criminal prosecution begins with the presumption that the defend- ant, although accused. Is Innocent, and that to overcome this legal pre- sumption the evidence must be clear and convincing, and sufficiently strong to convince the jury beyond a reason- able doubt that the defendant Is guilty. Holt V. United States, 31 S. Ct. 2, 218 U. S. 245, 54 L. Ed. 1021, 20 Ann. Gas. 1138, affirming judgment United States v'. Holt (0. O. Wash.) 168 F. 141. An instruction that on a plea of not guilty a presumption of innocence arises, that such presump- tion "goes with you In your retire- ment," and that the jury must "ex- amine the evidence by the light of that presumption." People v. Win- throp, 50 P. 390, 118 Gal. 85. Charges that "the law presumes every man in- nocent of the crime charged, * * * and this presumption abides with him throughout the entire trial, and should be borne in mind at each suc- cessive step In your deliberations as to your verdict," and that the burden of proof rests on the prosecution to prove the guilt of the accused "beyond a reasonable doubt." People v. Wil- lett, 105 Mich. 110, 62 N. W. 1115. A charge that "the jury start with the presumption that the defendants are not guilty until the evidence satis- fies you dlfCerently, but, when the evi- dence * * * satisfies you beyond any reasonable doubt, the evidence in- troduced by the government and the evi^denoe of the defendants, when you are satisfied on that evidence that the defendants are guilty, then you should say so; otherwise, you say the case Is not proved, and return a ver- dict of not gujlty." Commonwealth v. Clancy, 187 Mass. 191, 72 N. E. 842 Instruction that defendant is presum- ed to be innocent and the burden is on the state to establish his guilt, not with mathematical precision, but to a moral and reasonable certainty and beyond a reasonable doubt. Ponder V. State, 90 S. E. 365, 18 Ga. App. 703. IllustraiiomS of instructions held insufficient. An instruction that ac- cused goes to trial witb "the pre- sumption of law" in his favor. Thur- man v. State, 81 S. E. 796, 14 Ga. App. 543. An Instruction that, for the purpose of the trial and before any evidence is heard, a presumption 375 INSTRUCTIONS ON PRESUMPTIONS AND INFERENCES § 190 nocent until his guilt is so established,** or as failing to charge that the burden of proving guilt is on the state.** But it is error to merely charge that the defendant is presumed to be innocent until his guilt is established by legal evidence.*^ § 190., Instructions as to duration of presumption of innocence It is proper to instruct in a criminal case in nearly all juris- dictions that the presumption of the innocence of the defendant attend^ him to the end of the trial, or until a verdict is reached, and will prevail, unless it is overcome by evidence which con- vinces the jury beyond a reasonable doubt of his guilt,*® and sudh an instruction should be given on request.*' Accordingly it is of the innocence of the accused arises, and that, independent of evi- dence, accused is presumed to be in- nocent, which presumption attends him throughout the trial. People v. Maughs, 86 P. 187, 149 Gal. 253. An instruction that it is the duty of the jury to presume that accused is not guilty and give him the benefit of the presumption throughout the trial "un- til evidence shall have been introduc- ed which * * * is sufficient to establish the guilt of defendant be- yond all reasonable doubt, and if such evidence be not introduced, then defendant should have the benefit of such presumption throughout all stages of the trial" is erroneous as authorizing the jury, if they deem the ■evidence establishes guilt beyond a reasonable doubt, to consider the evi- dence offered by defendant without any regard to the presumption of in- nocence. Flynn v. People, 78 N. B. 617, 222 111. 303. 33 Hughes V. State, 67 S. W. 104, 43 Tex. Cr. K. 511. 84 Pritchett v. State, 90 S. E. 492, 18 Ga. App. 737 ; Huggins v. State, 60 S. W. 52, 42 Tex. Or. R. 364 ; Slade v. State, 29 Tex. App. 381, 16 S. W. 253; Zwicker v. State, 27 Tex. App. 539, 11 S. W. 633. 85 Mitchell V. State, 101 P. 1100, 2 Okl. Cr. 442. 3 8 Paxton V. State, 157 S. W. 396, 108 Ark. 316; Hodge v. State, 43 S. E. 255, 116 Ga. 852; Richardson v. State, 68 S. B. 518, 8 Ga. App. 26; State V. Krug, 12 Wash. 288, 41 P. 126; Emery v. State, 78 N. W. 145, 101 Wis. 627. Instructions held not objection- able as argumentative. A charge that the defendant entered the trial with the presumption of innocence in his favor, and that it remained with defendant throughout the trial and until the state overcame the same and established his guilt beyond a reason- able doubt, the burden of proof being on the state to establish each of the material allegations of the indictment to a reasonable certainty, is not argu- mentative. Clay V. State, 60 S. B. 1028, 4 Ga. App. 142. 3 7 Townsend v. State, 82 S. E. 253, 14 Ga. App. 757; Reddick v. State, 74 S. E. 901, 11 Ga. App. 150 ; Farley v. State, 127 Ind. 419, 26 N. B. 898. Insti^ctions held objectionable within rnle. An instruction that ac- cused was presumed to be innocent, "and that presumption rei^ained until such time as the minds of the jury are convinced from the evidence that he is guilty. You are to just start out, and just say, without regard to the indictment: 'Now, we have got to start out on the proposition that this man is innocent. Now, has the state proved his guilt, and proved it beyond a reasonable doubt? ' " — was erroneous, as permitting the jury to discard the presumption before they had agreed upon a verdict. People v. Ambach, 93 N. E. 310, 247 111. 451. An Instruction that, if the jury find that accused did not sell or assist in the sale of certain liquor, to acquit was erroneous as substantially in- structing against the presumption of innocence until guilt has been estab- lished beyond a reasonable doubt. Remillard v. State, 137 P. 370, 10 Okl. Cr. 438, reversing judgment on re- hearing 133 P. 1132, 10 Okl. Cr. 438. Instructions held not improper § 190 INSTRUCTIONS TO JTJEIES 376 error to instruct, as in violation of the above rule, that all pre- sumptions yield to the facts, and that the jury are not to presume anything where they have facts on which to act,** or to instruct that the presumption of innocence continues until such time in the progress of the cause as the jury may be satisfied beyond a reasonable doubt,*" or to instruct that the presumption of inno- cence should cease to influence the minds of the jury the moment they ai;e reasonably convinced that the evidence is sufficient to overcome such presumption,** or to instruct that the presumption of innocence goes with the defendant through the case until it is submitted to the jury.*i On the other hand, an instruction that the presumption of innocence remains with the defendant throughout the trial is not objectionable, on the ground that it does not expressly continue such presumption until the verdict is rendered,** and where instructions as to reasonable doubt and the presumption of innocence are given, and there has been no effort to shift the burden of proof, it is proper to refuse a charge that such presumption remains through the entire case.** In one jurisdiction it is held to be error to instruct that the pre- sumption of the innocence of the defendant goes with him throughout the trial,** the theory in this jurisdiction being that such presumption terminates on the introduction of evidence which convinces the jury beyond a reasonable doubt of the guilt of the defendant.** within rule. The court's Instructing cused ; that he comes clothed with that the accused was presumed to be the presumption of innocence — Is not innocent, and was not required to objectionable as implying that the prove himself innocent, until a prose- presumption might be changed dur- cution had proven his guilt beyond a ing the trial, before the jury are sat- reasonable doubt, does not deprive ac- isfled beyond a reasonable doubt of cused of the presumption of Innocence accused's guilt State v. Cline, 132 N. at some time in the trial, where it W. 160, 27 S. T>. 573. was further stated that the presump- s s Howell v. State, 53 So. 954, 98 tion abided with accused throughout Miss. 489. the trial of the case, until the evi- 39 Bush v. State, 168 P. 508, 19 dpnce convinced the jury to the con- Ariz. 195. trary beyond all reasonable doubt. io Horn v. Territory, 56 P. 846 8 People V. Arlington, 63 P. 347, 131 Okl. 52. Cal. 231. An instruction in a murder n People v. McNamara, 94 Cal. 509, trial that throughout the trial aequs- 29 P. 953. ed was presumed to be innocent, and 42 People v. James, 90 P. 561, 5 CaL that the presumption should prevail App. 427. unless overcome by evidence of guilt ^s Brown v. State, 53 S. W. 866, 41 beyond a reasonable doubt, was not Tex. Cr. R. 232. objectionable as implying that one wit- *i Strickland v. State, 44 So 90 ness' testimony early in the trial might 151 Ala. 31 ; Beiser v. State, 65 So! overcome the presumption. Rigsby v. 812, 10 Ala. App. 86. State, 91 N. E. 925, 174 Ind. 284. An 4o Williams v. Same,' 40 So 405 Instruction that there can be no pre- 144 Ala. 14 ; Bell v. State, 37 So. 281* sumption to begin with against ac- 140 Ala. 57. ' ' 377 INSTRUCTIONS ON PRESUMPTIONS AND INFERENCES § 191 § 191. Instructions as to nature and purpose of such presump- tion In some jurisdictions the accused is entitled to an instruction that the legal presumption of his innocence is in the nature of evidence, or of an instrument of proof to be weighed with other evidence in detg^mining the question of his guilt.*® In California such an instruction is not necessary," and in other jurisdictions it is not error, or at least not prejudicial error, to refuse to give it, where the court has fully instructed on the presumption of innocence in accordance with the rule set forth in the preceding section.** It is not improper for the court to instruct that the rule as to the presumption of the innocence of the defendant in a criminal case is not intended to aid any one in fact guilty of a crime to escape his just punishment, but is a humane provision of the law to guard against the danger of punishing an innocent per- son.^' An instruction, however, which merely says that such pre- sumption is not intended to aid the escape of one who is in fact guilty, is erroneous, as tending to disparage the presumption of innocence.^ *8 Diamond v. State, 72 So. 558, 15 evidence in behalf of defendant, at Ala. App. 33, certiorari denied Ex par- least, where no request for a more te Stat^, 73 So. 1002, 198 Ala. 694; specific instruction was made. State Chaney v. State, 59 So. 604, 178 Ala. v. Wolfley, 98 P. 337, 75 Kan. 406, 11 44; Hayes v. State, 88 S. E. 752, 18 L. R. A. (N. S.) 87, 12 Ann. Gas. 412, Ga. App. 68 ; Long v. State, 23 Neb. denying rehearing 89 P. 1046. 33, 36 N. W. 310 ; State v. Marston, 47 People v. Moran, 77 P. 777 144 72 A. 1075. 82 Vt. 250. Cal 48 Instrxictioiis sufficient yj^tlim 48 Summerlin v. State (Ga. App.) rule. An instruction as to the pre- j^g g ^ §32 gt^tg v. Hudspeth, 60 sumption of mnocence was not ob- g ^ ^gg ^gg ^^ ^^g jj^y^^ ^ jectionable because it was charged „. . „„ „ w 1111 57 NPh 471- that the presumption partakes "of llrtTev v State 73 N W 744 53 the nature of evidence," instead of ^eb 310 that the presumption is evidence. ' r^ ' ■, „ u 1 «« tvt t, 00/. Holmes v. State, 118 N. W. 99, 82 Nev. „ *» PeoPj^ v. Searbak, 92 N. E 286, 406. An instruction that the law pre- 245 111. 435 ; Turner v. State, 1 N. E. sumes, and the jury must presume, 869, 102 Ind. 425 ; State v. Medley, 54 defendant to be innocent until he is Kan. 627, 39 P. 227; State v. Keith, proved guilty beyond a reasonable ^^ ^°- -^^PP- ^°^- . doubt by competent evidence, suffi- »» People v. Gerold, 107 N. E. 165, ciently indicates th^t the presumption 265 111. 448, Ann. Gas. 1916A, 636; of innocence is equivalent to so much State v. Romeo, 128 P. 530, 42 Utah, 46. § 192 INSTEUCTIONS TO JURIES 378- 2. Presumptions and Inferences Other Than Those of Innocence Presumptions and burden of proof as to defense of insanity, see post, §§ 328,. 329. § 192. Presumptions and inferences favorable to defendant Where applicable, presumptions of law whi" are favorable to the accused should be given to the jury.®'- Thus, in a prosecu- tion of one for a criminal offense against his wife, the defendant, is entitled to a charge that he is to be accorded, not only the ordi- nary presumption of innocence, but the added and equally favor- able presumption which arises from the matrimonial relation.®*" It has been held, however, that the presumption arising from the failure of the defendant to flee, being a commonplace matter, need not be given to the jury,** and, although the court may be author- ized to comment on the evidence, the defendant is not entitled to have the court call the attention of the jury particularly to cer- tain portions of the testimony and suggest to them certain infer- ences of fact to be drawn therefrom.®* § 193. Unfavorable presumptions Presumptions of law that are against the accused should not ordinarily be given in the charge,®® and it is error to refuse to instruct that no inference can arise against the accused from the silence of a witness,®* or from the fact that the defendant refused to allow his 'house to be searched without a warrant.®' Since, how- ever, as to collateral facts affecting the main question of guilt, the presumption of law is often against the accused,®* it is proper to refuse to instruct that nothing is to be presumed or taken by implication against him.®® Bi Snowberger v. State, 126 S. W. -wholly on circumstantial evidence, it 878, 58 Tex. Or. R. 530; Coker v. is error to refuse an instruction that State, 128 S. W. 137, 59 Tex. Cr. R. the mere fact that deceased died sud- 241. denly is not proof that her death was s2 State -V. Moxley, 102 Mo. 374, 14 the result of a criminal act; but th& S. W. 969, 15 S. W. 556. state must prove such to be the fact, 53 Cobb V. State, 22 So. 506, 115 and -without such proof it must be Ala. 18 ; People v. Herrera, 163 P. presumed that she died from natural 879, 32 Cal. App. 610; Thomas v. causes. State v. Moxley, 102 Mo. 374, State, 36 So. 161, 47 Fla. 99. 14 S. W. 969 ; Id., 102 Mo. 374, 15 S. 54 State V. Quigley, 58 A. 905, 26 R. W. 556. I. 263, 67 L. R. A. 322, 3 Ann. Cas. oe People v. Hall, 12 N. W. 665, 48 920. Mich. 482, 42 Am. Rep. 477. 6 5 Snowberger v. State, 126 S. W. 57 Murdock v. State, 68 Ala 567 878, 58 Tex. Cr, R. 530. sa Thalheim v. State, 20 So. 938, 38 Presumption arising from sud- Fla. 169. den death. In the prosecution of a 6 9 Qass v. State, 32 So. 109, 44 Fla husband for killing his wife, based 70. 379 INSTRUCTIONS ON PRESUMPTIONS AND INFERENCES § 195 An instruction that the fact pi the indictment,®* or of the pres- ence of the accused in the courtroom,*^ furnishes no evidence of his guilt, while proper, is not necessary, at least in the absence of a request therefor.®* § 194. Presumption that one intends the natural and proximate consequences of his acts It is proper to instruct in some jurisdictions in a criminal case that one is presumed to have intended the natural, probable, and usual consequences of his acts,®* if the instructioil is so framed as to indicate that such presumption is not conclusive,®* and in one jurisdiction it is proper to instruct, under a statute, that a mali- cious and guilty intent is conclusively presumed from the delib- erate commission of an unlawful act for the purpose of injuring another.®^ In other jurisdictions, however, an instruction that every sane man is presunied to intend the natural and probable consequences of his acts is considered erroneous.*® § 195. Inferences from possession of stolen goods Invading province of jury, see ante, § 61. In a proper 'Case the court may,®' and should,®* charge on the effect of the possession of property recently stolen as evidence of the crime of Ikrcenyor burglary. The court may be required to instruct in relation to the explanation given by defendant of his possession of stolen property, if such explanation is a reason- able one,®® and one found in possession of stolen goods and ac- 60 Aszman v. State, 123 Ind. 347, Cal. 66 ; People v. Botkin, 98 P. 861, 24 N. E. 123, 8 L. R. A. 33 ; State v. 9 Cal. App. 244. Baker, 136 Mo. 74, 37 S. W. 810; ss Coulter v. State, 161 S. W. 186, 110 Same v. Donnelly, 130 Mo. 642, 32 S. Ark. 209 ; Rogers v. Oommonwealtli, W. 1124; Same v. Pratt, 121 Mo. 566, 96 Ky. 24, 27 S. W. 813 ; State v. 26 S. W. 556; Same v. Brown, 115 Schaefer, 88 P. 792, 35 Mont. 217; Mo. 409, 22 S. W. 367 ; Crane v. State, Thomas v. State, 125 S. W. 35, 57 Tex. 123 S. W. 422, 57 Tex. Cr. R. 476. Cr. R. 452. Comtpa— State v. Hollingsworth, 56 67 state v. Ryan, 85 N. W. 812, 113 S. W. 1087, 156 Mo. 178. Iowa, 536; Williams v. State (Tex. 61 State V. Shaw, 94 A. 434, 89 Vt. Cr. App.) 33 S. W. 371. 121, Jj. R. A. 1915F, 1087. 6 8 state v. Randolph, 166 P. 555, 62 Brooks V. State, 90 S. E. 989, 19 85 Or. 172; Coleman v. State, 199 S. -Ga App 3. W. 473, 82 Tex. Cr. R. 332; Robertson 63 People v. Webster, 109 P. 637, 13 v. State, 26 S. W. 598, 33 Tex. Cr. R. Cal. App. 348; Krchnavy v. State, 43 366 ; Coward v. State, 24 Tex. App. Neb. 337, 61 N. W. 628; People v. 590, 7 S. W. 332. Meadows, 92 N. E. 128, 199 N. Y. 1, e" Wilson v. State, 129 S. W. 836, atHrming judgment 121 N. Y. S. 17, 59 Tex. Cr. R. 623; Gather v. State 136 App. Dlv. 226. (Tex. Cr. App.) 81 S. W. 717 ; Carter 6 4 State V. Taylor, 50 S. E. 247, 57 v. State (Tex.) 12 S. W. 740. W. Va. 22s ; Weisenbach v. State, 119 See Brooks v. State, 47 S. W. 640, N W. 843, 138 Wis. 152. 39 Tex. Cr. R. 622 ; Wright v. State, 6 5 People y. McGlade, 72 P. 600, 139 35 Tex. Cr. R. 470, 34 S. W. 273; § 195 INSTEUCTIONS TO JURIES 380 cused of their larceny or of the burglary of the premises from which the goods were stolen is entitled to have his theory of how he came into the possession of the goods submitted to the jury, however improbable his evidence in support of such theory may seem to the trial court.'"* Instructions with respect to the efifect of the possession of stolen property as evidence of guilt,'^ or as to the effect of an' explanation of such possession, must be predicated upon the evi- dence.'^ Such a. charge is not necessary, where defendant denies that he had possession of the stolen goods,'* nor where the de- fendant does not attempt to account for his possession of the stolen property,'* and it has been held that a charge on recent possession of stolen goods,'® or a charge on the explanation by defendant of his possession,'® is only required when such ex- planation is offered at the time his title or possession is first called in question. A charge as to effect of possession is not erroneous for failure to qualify possession by "unexplained," when defendant makes no attempt to explain his possession.?' In some jurisdictions the court need not grant a special request to in- struct on the efifect of the possession of property recently stolen,. . if it has given a full charge on circumstantial evidence.'* The presumption of guilt arising from the possession of re- cently stolen property being one of fact the court should care- fully instruct the jury as to its nature and proper scope, and how they may consider it as evidence in view of the facts of the case.'* The proper instruction in most jurisdictions is that the posses- sion of recently stolen property, if unexplained, is a circumstance Conners v. State, 31 Tex. Cr. R. 453, 125 Mich. 535; Richardson v. State 20 S. W. 981; Navarrow v. State (Tex. (Tex. Cr. App.) 42 S. W. 996. App.) 17 S. W. 545 ; Miller v. State, '* McGee v. State, 155 S. W. 246, 69 18 Tex. App. 34. Tex. Cr. R. 580; Dixon v. State, 136 TO Bond V. State, 23 Tex. App. 180, S. W. 462, 62 Tex. Or. R. 53 ; Holland 4 S. W. 580; Heath v. State, 7 Tex. v. State, 134 S. W. 693, 61 Tex. Or. ^pp 464 R. 201; Ellison v. State (Tex. Or. ri People V. Abbott, 34 P. 500, 4 gf^L^^^, ^••^i^'o?*J'^^^R?q^*^*"' Cal. Unrep. 276; Brantley v. State, *^^,i-??.;>'^-.^- ^„TV o^" o "^ IXo ^o 41 S. E. 695, 115 Ga. 229; State y. " ^'^^%^ J:„State, 87 S. W. 698, 48 Williams 94 N. W. 255^120 Iowa, 36 ; ■"?« j^ones V. gtate, 132 S. W. 476, 60 State V. James 92 S W. 679^194 Mo. Tg^. Cr. R. 426; Smotherman v. Stkte, If 'f ^rJ^'^^'-r^ °?- V^l L ^J^\°P, ""■ S3 S. W. 838. 47 Tex. Cr. R. 309. State (Tex. Cr. App.) 34 S. W. 284. tt state v. Guffey, 163 N. W. 679, 72 State V. McClaln, 106 N. W. 376, 39 S D 84 o . w. u.c7, 130 Iowa, 73; Klnkead v. State, 135 7 8 Bonners v. State (Tex. Cr. App.) S. W. 573, 61 Tex. Cr. R. 651; Diseren 35 S W 650 V. State, 127 S. W. 1038, 59 Tex. Cr. to state v. Harrington, 96 S. B. ?;/ 1^^ if «'°w ""^J'^*^' 2^ ^^^- 892, 176 N. O. 716; Boyd v. State, 24 ^r^^T, ', ■^^- ™o. .T w ..o T^'^- ^PP- 570, 6 S. W. 853, 5 Am. St. 78 People V. Carey, 84 N. W. 1087, Rep. 908. 381 INSTRUCTIONS ON PRESUMPTIONS AND INFERENCES § 195 to be considered by the jury the same as any other fact, and given such weight as they may deem it entitled to in connection with all the other evidence.*" An instruction that the unexplained pos- session of recently stolen property is a circumstance to be con- sidered by the jury in arriving at their verdict, as tending to show the larceny of the property by defendant, is erroneous in some jurisdictions.*^ On the other hand, an instruction so framed as to be likely to mislead the jury into the belief that they cannot draw the presumption of guilt as a matter of fact from the unex- plained possession of recently stolen goods is properly refused.*^ In some jurisdictions it is proper to instruct that such posses- sion is a circumstance tending to show guilt, but not of itself sufficient to warrant conviction,** and in other jurisdictions an in- struction that the unexplained possession of recently stolen goods raises a presumption of fact that the possessor is guilty of the theft is not erroneous.** Such an instruction would seem to in- vade the province of the jury, but, as explained elsewhere,** while the presumption in question is denominated one of fact, it is, in jurisdictions which permit such an instruction, regarded as of such an inevitable nature that the law attaches to it definite evidential consequences. In one jurisdiction, where this view is entertained,*^ it is held that either of the terms, "presumption of law" or "presumption of fact" may be used to express the same thought, for they are identical in meaning. i Where the chief inculpatory fact relied on by the state in a prosecution for larceny is the possession by defendant of the stolen property soon after the theft, the court should charge, on request, that such possession is not of itself sufficient to warrant a con-viction ; *'' but it is proper to refuse an instruction that mere possession of stolen property by accused is not prima facie evi- dence of his guilt, if there is proof of other facts tending to show his guilt.** 80 state V White, 92 P. 829, 76 8* HoUiday v. State, 98 S. E. 386, Kan 654 14 L. R. A. (N. S.) 556; 23 Ga„ App. 400; Latty v. State, 91 Territory v. Caldwell, 98 P. l67, 14 S. E. 942, 19 Ga. App. 621 ; Temples N W 535- State v. Vierck, 120 N. v. State, 89 S. E. 600, 18 Ga. App. W 1098 23 S D. lee! 139 Am. St. 510; Murray v. State (Miss.) 36 So. Rep. 1040 ; State v. Peach, 40 A. 732, 541 ; State v. Good, 132 Mo. 114 33 S.- 70 Vt 283. W. 790 ; State v. Bobbins,. 65 Mo. 81 Johnson v. State, 96 S. W. 45, 443. " 50Tex. Or. R. 116; Robinson v. State, ss Ante, § 6d. ,, „ ^ ^^^ „ 106 P 24, 18 Wyo. 216. «° State v. Kelly, 11 N. W. 635, 57 82 Bellamy v. State, 17 So. 560, 35 Iowa, 644. pj^ 242 *^ Dreyer v. State, 11 Tex. App. 503. sapeoiDle V. Gibson, 116 P. 987, 16 ee Hicks v. State, 99 Ala. 169, 13 Cal. App? 347. So. 375 ; Knickerbocker v. People, 43 § 195 INSTETJCTIONS TO JURIES 382 In a proper case the court may be required to charge that the possession of recently stolen property is only a circumstance •against the defendant, and that, if the defendant gives a rea- sonable explanation of such possession, consistent with his in- nocence, it will then devolve upon the state to prove the falsity of such explanation, in default of which proof the jury will not ■consider such possession as ,a criminating circumstance,*' and where the evidence furnishes such a reasonable explanation, the court should instruct that, if the evidence offered in explanation raises a reasonable doubt of the guilt of defendant, the jury should acquit him.®" So, if possession of recently stolen property is the only inculpatory fact relied on by the state, it will be proper to instruct that, if the defendant has given a reasonable and probable explanation, consistent with innocence, of such pos- session, the defendant should be acquitted, unless the state shows the explanation to be false.^ A charge in effect that, if the de- fendant is shown to have been in possession of the stolen prop- erty soon after the theft, the jury must find a verdict of guilty, unless the defendant proves the innocent possession of the goods, takes away from the jury the question whether the evidence of the defendant in explanation of his possession, may not have raised in the minds of the jury a reasonable doubt as to his guilt, and is therefore erroneous.'* An instruction on the presumption arising from the possession of stolen property must be predicated on the assumption that the possession was recent.'^ If it is not clear that the possession by defendant of stolen goods was recent after the theft, the court should explicitly instruct that, unless the jury find that such pos- session was recent, they cannot indulge in any presumption there- from of the guilt of defendant.** In submitting to the jury the effect of the unexplained possession by defendant of recently stolen property, the court should require the consideration of all the circumstances for and against him, such as the fact that the possession by defendant was open, and that his reputation was good."® N. Y. 177; Ingalls v. State, 48 Wis. 02 State v. Lax, 59 A. 18, 71 N. J. 647, 4 N. W. 785. Law, 386. 8 9 Coleboirn v. State, 133 S. W. 882, os Mance v. State, 62 S. E. 1053, 5 61 Tex. Cr. R. 26. See Hayes v. gtate, 6a. App. 229. 35 S. W. 983, 36 Tex. Or. R. 146. a* Boyd v. State, 24 Tex. App. 570, 8 State V. Anderson, 77 S. E. 238, 6 S. W. 853, 5 Am. St. Rep. 908; Cur- 162 N. 0. 571 ; Knight v. State (Tex. lln v. State, 23 Tex. App. 681 5 S Cr. App.) 65 S. W. 88. W. 186. 91 Hart V. State, 3 S. W. 741, 22 oo State v. Sasseen, 75 Mo. App. Tex. App. 563. See Johnson v. Com- 197; Brown v. State, 151 N W 924 monwealth (Ky.) 15 S. W. 671. 97 Neb. 862 ; State v. Fitzgerald, 47 383 INSTRUCTIONS ON PEESUMPTIONS AND INFERENCES §196 § 196. Inferences from flight of accused Invading province of jury, see ante, § 62. It is proper to charge that the flight of a person accused of a crime for which he is being prosecuted is a circumstance to be considered by the jury in connection with the other evidence in the case in determining whether he is guilty, and given such weight as the jury may think it entitled to,^® and in some juris- dictions it is not improper to charge that flight is a circumstance A. 403, 72 Vt. 142. See People V. Farrington, 74 P. 288, 140 Cal. 656. 9 6 Ariz. Nevarez v. State (Ariz.) 196 P. 449. Cal. People v. Easton, 82 P. 840, 148 Cal. 50; People v. Giancoli, 74 Cal. 642, 16 P. 510. Iowa. State v. O'Meara, 177 N. W. 563. Kan. State v. Thomas, 51 P. 228, 58 Kan. 805. La. State v. Anderson, 46 So. 357, 121 La. 366. Instructions held proper within rule. An instruction, in a prosecu- tion for burglary, that, if defendant fled, that would be a circumstance of guilt that the jury might consider with other facts on the issue of guilt, unless his flight had been explained satisfactorily to the jury and they should find that he fled tor som- other reason than the consciousness -of guilt. Hall V. State, 66 S. E. 390, 7 6a. App. 115. An instruction, on the trial of an indictment against a man who had not been seen after the time at which the offense charged was com- mitted until he was brought from an- other state under a requisition from the Governor, the judge instructed the jury that, if the defendant fled be- cause he was charged with the crime, it was a suspicious circumstance, which he was called upon to explain, but that they must fiind that it was a flight; that the burden of proof was not shifted, but remained throughout upon the commonwealth ; and that, even if the defendant could not explain his flight, they need not necessarily find him guilty. Common- wealth V. Annis, 15 Gray (Mass.) 197. An instruction: "Flight is considered as evidence of guilt. It is your priv- ilege to look on this testimony in that light. • ♦ * You may also look on it as evidence of fear * * * of summary punishment at the hands of his pursuers. Weigh it carefully and give it the effect it reasonably should have." Commonwealth v. Ber- chine, 32 A. 109, 168 Pa. 603. When the fact that accused fled immediately after the homicide is proved, it is not error for the presiding judge to charge that such flight is a circum- stance tending to show guilt ; that it is only a slight circumstance, which may be explained, and, if explained to the satisfaction of the jury, should not be considered as a circum- stance against him. Hudson v. State, 28 S. E. 1010, 101 6a. 520. Where, in a prosecution for homicide, the court charged that flight immediately after the commission of a Crime, if the jury found, from the evidence, that defend- ant fled, or after a crime has been committed with which he is charged, is a circumstance in establishing his guilt, not sufiicient in itself to estab- lish guilt, but which the jury may consider in determining the possibili- ties for or against him, the weight to be attached to which. is a matte i' for the jury, it was held that the instruc- tion was not erroneous on the ground that it failed to instruct as to the weight to be given to the fact of flight. State v. Stentz, 74 P. 588, 33 Wash. 444. A charge on a trial for murder that flight was a circumstance that the jury must consider like any other fact, that because a man fled from the scene of homicide was not conclusive that he was guilty, but that when flight was proven the jury must take that circumstancg and con- sider it as any other evidence and de- termine why he fled, and that wlien they had so determined they should § 196 INSTRUCTIONS TO JURIES 384 which is prima facie an indication of guilt,*" or which, unex- plained, raises an inference of guilt akin to the presumption deemed to arise upon the fabrication of false evidence,** where it is further stated that such presumption is not conclusive.** In other jurisdictions it is error to charge that the flight of an ac- cused raises a presumption against him.'- Instructions tending to prevent the jury from considering flight as any evidence of guilt are ordinarily properly refused.^ Where an instruction on flight as tending to show a conscious- ness of guilt is given, it should contain the qualification that the accused knows he is charged with a crime,* and when the facts tend to show that the purpose of the defendant in going away was not to avoid arrest, the instructions on flight should be so framed as to include all the circumstances, that the defendant may have the benefit of such explanatory facts,* although, in the absence of anything to explain the apparent flight of the de- give to that circumstance the weight they thought it ought to have in de- termining the case, and that the mere circumstance that a man fled was not of itself suflicient to convict, but that the jury should give it such weight as they thought it ought to have in relation to the other circumstances, was not subject to the objection that it was not sufficiently comprehensive in that the jury might find that de- fendant's flight was not for the pur- ■pose of eluding arrest, but to save his own life, in which event it could not be considered as indicative of guilt. Thomas v. State, 59 S. E. 246, 129 Ga. 419. 07 State v. Matheson, 103 N. W. 137, 130 Iowa, 440, 114 Am. St. Rep. 427, 8 Ann. Cas. 430; State v. Rich- ards, 102 N. W. 439, 126 Iowa, 497; State v. McLaaighlin, 50 S. W. 315, 149 Mo. 19; State v. Hunt, 43 S. W. 389, 141 Mo. 626; State v. Ma Foo, 110 Mo. 7, 19 S. W. 222, 33 Am. St. Rep. 414. Instructions proper iritliin rnle. On a trial for felonious assault, where the evidence shows that de- fendant left the state immediately after the assault, as he had previous- ly intended to do, it is not error to charge that flight raises the presump- tion of guilt, where the jury are fur- ther instructed that defendant has a right to show other good reasons for leaving, and that they shall consider the evidence that he had already made arrangements to leave on that day. State v. Potter, 108 Mo. 424, 22 S. W. S9. An instruction that flight raises the presumption of guilt, and that, if defendant fled the country, the jury might consider It in determining his guilt or innocence, but that they should not consider such leaving as a flight if defendant left on his ovra proper and legitimate business, and not for the purpose of avoiding arrest or trial, is unobjectionable, where de- fendant, after the commission of the crime, left for another state. State v. Jackson, 95 Mo. 623, 8 S. W. 749. 8 8 State V. Harrington, 94 A. 623, 87 N. J. Law, 713. 9 9 State V. Walker, 98 Mo. 95, 9 S. "W. 646; State v. Brooks, 92 Mo. 542, 5 S. W. 257, 330. 1 Sheffield v. State, 43 Tex. 378. 2 Mitchell V. State, 30 So. 348, 129 Ala. 23; Bodine v. State, 29 So. 926, 129 Ala. 106 ; People v. Giancoll, 74 Oal. 642, 16 P. 510; Smith v. State, 63 Ga. 168. 3 People V. Jones, 117 P. 176, 160 Oal. 358. i State V. Schmulbach, 147 S. W. 966, 243 Mo. 533 ; State v. Harris, 134 S. W. 535, 232 Mo. 317 ; State v. Fair- lamb, 121 Mo. 137, 25 S. W. 895; State v. Hogg, 129 P. 115, 64 Or. 57. 385 INSTBtrCTIONS ON PRESUMPTIONS AND INFBEBNCES § 196 fendant, the court is not required to charge that the circumstanc- es explaining flight may be considered.* Instructions on flight as a circumstance tending to show guilt must be based on the evidence.* Evidence that defendant left the jurisdiction shortly after the crime of which he is accused was committed,' or that he escaped from jail, where he was awaiting trial for the offense charged against him,* may authorize such State V. Deatherage, 77 P. 504, 35 Wash. 326. See State v. Walker, 98 Mo. 95, 9 S. W. 646. « Cal. People v. CJhoy Ah Sing, 84 Cal. 276, 24 P. 379. Colo. Orln v. People, 188 P. 1114, 68 Colo. 1. Ga. Jones v. State, 51 S. E. 312, 123 Ga. 129. Mo. State v. Goodwin (Sup.) 217 S. W. 264 ; State v. Kyles, 153 S. W. 1047, 247 Mo. 640; State v. Hopper. 44 S. W. 272, 142 Mo. 478; State v. Evans, 39 S. W. 462, 138 Mo. 116, 60 Am. St. Bep. 549. ninstrations of cases in nvhicli evideiuse beld sufficient to irarrant instmction on flight. Where, on a trial for rape, there was evidence that accused left the scene of the crime and remained away a day and a half, and a witness testified that accused had stated that he left soon after prosecutrix went to a neighbor, and that he left because he was afraid that there might be trouble, there was evidence of flight sufficient to warrant an instruction that evidence of flight might be considered as corroborating the prosecutrix as to the identity of her assailant. State v. Ralston, 116 N. W. 1058, 139 Iowa, 44. Where there was evidence tending to connect defendant with a theft, and he left the state three days after, and did not return until brought back under arrest, an Instruction on flight was justified. State v. Alley, 128 N. W. 343, 149 Iowa, 196. In homicide, evi- dence of police officers who had known defendant for years that they could not find him around his usual haunts after the crime, and after tracing him for some time they found him in a hospital under an assumed name, is sufficient, in the absence of explanatory facts, to authorize the INST.TO JUBIES— 25 submission of the question of flight to the jury. State v. White, 87 S. W. 1188, 189 Mo. 339. In a prosecution for homicide, where it appeared that defendant while driving his team up- on a highway had run down a bicyc- list and killed him, and that there- after, instead of keeping the main road, he turned off into an obscure road and sought tQ avoid meeting or being recognized by other persons, and changed his course, and that his companions separated from him and left him, no one going back to render assistance to the injured' imrson, an instruction on the weight to be giv- en to the evidence of flight was justi- fied by the evidence. State v. Stentz, 74 P. 588, 33 Wash. 444. Defendant's statement to the officer who arrested him that he was trying to get away, in connection with an admission that he had assaulted prosecutrix, justi- fied the giving of an instruction as to flight, and Its bearing on the case. State V. Harrison, 149 N. W. 452, 167 Iowa, 334. Where, In a prosecution for larceny, the evidence showed that immediately after the commission of the crime defendant, instead of re- turning home as he said he would, went out of the state, where he re- mained for several months ; that when he returned to the state he did not return to his home town, but to a neighboring town, where he was ar- rested, and when arrested he stated to the arresting officer that he "ought to have known better than to have come back," it was held that the evidence warranted an instruction on flight. State v. Soper, 106 S. W. 3, 207 Mo. 502. 7 State V. (VMeara (Iowa) 177 N. W. 563; State v. Robinson, 152 N. AV. 590, 170 Iowa, 267. 8 Patterson v. State, 100 S. E. 641, 24 Ga. App. 239. § 197 INSTRUCTIONS TG JURIES 386 an instruction. In some jurisdictions it is, held that a charge on the presurhptions arising from flight is erroneous, if it is neces- sary to submit to the jury the question of whether or not the evi- ' deiice in fact showed the flight of defendant.* C. Failurb to Produce, and Suppression or Fabrication of. Evidence § 197. Rule in civil cases Under some statutory provisions relating to the failure of a pai'ty to produce evidence, or to furnish the best evidence bear- ing on issues of fact, it is proper for the court to instruct as to the presumption arising where one, who has evidence in his power to repel or explain a charge, fails to present it,^" and to comment upon the failure of a party to call witnesses having knowledge concerning the matters in dispute," and under such a provision it is held in one jurisdiction that the court should in- struct the jury that, if weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory evidence was within the power of the party, the evidence offered should be viewed with distrust.^* In jurisdictions where no constitutional or. statutory restric- tions against commenting on the evidence exist, and in some other jurisdictions, the court may in civil cases comment on the failure of a party to produce available evidence, or to call wit- nesses as to a material fact peculiarly within their knowledge,^* and may tell the jury that they may consider such failure,"'* and that they may draw such inferences therefrom as are reason- able,^® or that they may infer that the evidence not produced would not help the case of the party failing to produce it," or that the jury will be warranted in accepting as true testimony adverse to a party who fails to controvert it by summoning wit- nesses having knowledge of the facts," or that the jury may take Fountain v. State, 101 S. E. 294, 203, 16 A. 765, 23 Wkly. Notes, Gas. 149 Ga. 519, reversing judgment 98 264 ; Frick v. Barbour, 64 Pa. 120. S. F. 178, 23 Ga. App. 113, opinion i* Griggs v. Saginaw & P. Ry. Co., of Supreme Court conformed to by 162 N. W. 960, 196 Mlcli. 258 ; Gcod- 101 S; E. 712, 24 Ga. App. 558. stein v. Brooklyn Heights R. Co., 74 10 Moye V. Reddick, 93 S. E. 256, 20 N. T. S. 1017, 69 App. Div. 617 ; Hart- Ga. App. 649. man v., Pittsburg Incline-Plane Co., 11 Sesler v. Montgomery (Cal.) 19 11 Pa. Super. Ct. 438. P. 686. 15 Young v. Corrigan (D. O. Ohio) 12 Stamm v. Wood, 168 P. 69, 86 208 F. 431. Or. 174. 16 Robinson v. Doe, 112 N. E, 1007, 13 Ripley v. Second Ave. R. Co. 224 Mass. 319. (Super. N. Y.) 8 Misc. Rep. 449, 28 N. it Perlman v. Shanck, 182 N. Y. y. S. 683 ; Collins v. Leafey, 124 Pa. S. 767, 192 App. Div. 179. 387 INSTRUCTIONS ON PRESUMPTIONS AND INFERENCES § 197 such testimony most strongly against the party thus failing to controvert it.^* and in some jurisdictions it may be error to re- fuse such an instruction,'* and the general rule is that the court may in its discretion refuse to instruct that no unfavorable in- ferences shall be . drawn from a failure to produce evidence.*" On the other hand, it is error to instruct as to the presumption arising from the failure of a party to testify or to produce a wit- ness, where the party or witness is not shown to possess peculiar knowledge of the facts in issue/' or where a witness not called has disclaimed all knowledge of the matter in issue,** and in- structions are erroneous which permit the jury to indulge in any speculation with respect to what a witness whom a party has failed to call would have testified to.** The court should not charge as to the inferences to be drawn from the failure of a party to produce evidence, where it does not appear that he could have produced the evidence, or there are circumstances oper- ating apparently to prevent such production,** or where it does not appear that witnesses not called are under the control of one party more than of another,*' or where such party relies upon 18 Perlman v. .Schanck, 182 N. Y. S. 767, 192 App. Div. 179. 19 Werr v. Kohles, 83 N. T. S. 128, 86 App. Div. 122. In MicMgan, wJule counsel has the right to make*|)toper comments to the jury upon the absence of a material witness for the opposing par- ty, he cannot call upon the court to instruct the jury that such absence militates against such party. Cross V. Lake Shore & M. S. Ey. Co., 37 N. W. 361, 69 Mich. 363, 13 Am. St. Eep. 399. 20 Closson V. Bligh, 83 N. B. 263, 41 Ind. App. 14; Taylor v. Chicago, Sj:. P. & K. C. Ry. Co., 76 Iowa, 753, 40 N. W. 84 ; Appeal of Anderson, 165 N. "W. 732, 199 Mich. 240; Cox v. Nor- folk & C. R. Co., 35 S. E. 237, 126 N. C. 103. 21 Carter v. Chambers, 79 Ala. 223. Action by assignee. Where an action is prosecuted by the assignee of a claim, who has no knowledge whatever of the facts in issue, and who is fully represented by his attor- neys in the conduct of the trial, it -is error to charge that his absence dur- ing the trial should be taken into consideration by the jury. Hitchcock V. Davis,- 87 Mich. 629, 49 N. W, 912. 22 Fitzpatrick v. Woodruff, 47 N. Y. Super. Ct. 436. 23 Perlman v. Schanck, 182 N. Y. S. 767, 192 App. Div. 17^. 2* Cal. Lawyer v. Los Angeles Pac. Co., 138 P. 920, 23 Cal. App. 543. Ga. Harrison v. Kiser, 79 Ga. 588, 4 S. B. 320. Ind. Bump v. McGrannahan, 111 N. E. 640, 61 Ind. App. 136. N. Y. Santiago v. John E. Walsh Stevedore Co., 137 N. Y. S. 611, 152 App. Div. 697 ; Carney v. New York City Ry. Co. (Sup.) 102 N. Y. S. 485, 52 Misc. Rep. 499; Rooder v: Inter- urban St. Ry. Co. (Sup.) 96 N. Y. S. 255, 48 Misc. Rep. 519. Tex. Parlin & Orendorffi Co. v. Miller, 60 S. W. 881, 25 Tex. Civ. App. 190. Failure to call incompetent -wit- ness. A defendant, in an action where his wife is not a competent witness in his behalf, is entitled to an instruction that such is the fact, without the modification that, if she had been ofCered as a witness, plain- tiff could have waived objection to her competency. Fourth Nat. Bank v. Nichols, 43 Mo. App. 385. 2 5 Flynn v. New York Elevated R. Co., 50 N. Y. Super. Ct. 375. § 197 INSTEUCTIONS TO JURIES 388 f the improbability of the evidence produced by his adversary.** The court should not permit the jury to draw unfavorable in- ferences from the failure of a party to produce a witness who, mistakenly or corruptly, may be willing to testify to facts favor- able to such party.*' So it is proper to refuse, such an instruc- tion, where a witness whom a party fails to call would give cumu- lative testimony only.** It is proper to caution the jury against being influenced by the fact that a party has invoked the confidential relation of physi- cian and patient, and refused to call the physician to testify to facts, knowledge of which was acquired by him in such rela- tion,** or that the jury shall not draw unfavorable inferences against a party for omitting to call his attorney as a witness,*" or that the jury must find their verdict upon the evidence actU'al- ly adduced, and not upon conjectures arising from a seeming withholding of testimony,'^ and it is error to refuse to tell the jury that the mere fact that a party offers no evidence does not warrant them in drawing unfavorable inferences against him.** A party, desiring an instruction as to inferences arising from the suppression of evidence, a failure to call witnesses, or the failure to product the best evidence available, should request it,** and such an instruction must be based upon the evidence.** Witness competent for either on that fact. 'Wpgtmg v. Chicago, B. party. Where a person whose evi- & Q. E. Co., 12f'N. W. 1076, 87 Neb. dence would be competent for either 655. party to an action was in court dur- 20 Mortimer v. Daub, 98 N. B. 845, ing the trial, and equally accessible 52 Ind. App. 30. to both parties, it is error to charge 3 Freeman v. 'Fogg, 82 Me. 408, that the jury could draw an unfavor- 19 A. 907. able inference against one of the par- i si Bank of Statesville v. Pinkers, ties for failing to call such person as 83 N. C. 377. a witness. Bates \,. Morris, 101 Ala. 82 Simon v. GriflJn Wheel Co., 168 282, 13 So. 138. lU. App. 533. 2 6 Smith V. Chicago City Ry. Co., ss Jones v. Boston & N. St. Ry., 98 165 111. App. 190. N. E. 506, 211 Mass. 552 ; Paverman 2 7 Jiiiier V. Dayton, 57 Iowa, 423, v. Joline (Sup.) 120 N. Y. S. 64. 10 N. W. 814. 3* Cal. In re Moore's Estate, 182 2 8 Akalitis V. Philadelphia & Read- P. 285, 180 Cal. 570; Thomas v. ing Coal & Iron Co. (C. C. A. N. Y.) Gates, 58 P. 315, 126 Cal. 1. 239 F. 299, 152 C. C. A. 287 ; Brown Ga. Central of Georgia Ry. Co. v. V. Town of Swanton, 37 A. 280, 69 Vt. Bernstein, 38 S. E. 394, 113 Ga. 175 ; 53. Anderson v. Southern Ry. Co., 33 S. Failure of party to testify. E. 644, 107 Ga. 500. Where plaintiff establishes by compe- N. Y. Kaplan v. Interborough tent evidence his cause of action, he Rapid Transit Co. (Sup.) 165 N. Y. s. may decline to testify, and his omis- 216 ; Freyhan v. Kahn (Sup.) 159 N. slon to state the amount of his dam- Y. S. 640 ; Robinson v. Metropolitan ages does not require the court in the St. Ry. Co., 92 N. Y. S. 1010, 103 App. instructions to comment unfavorably Div. 243. 389 INSTRUCTIONS ON PRESUMPTIONS AND INFERENCES § 198 § 198. Rule in criminal cases In some jurisdictions it is not improper to instruct m a crim- inal case that, if evidence which will explain or, rebut certain facts or circumstances operating against the defendant is peculiarly within his knowledge or reach, and is not accessible to the state, the fact that he fails to produce it may be taken into considera- tion in determining his guilt or innocence,^^ where, the court pre- serves the constitutional right of the defendant that no infer- ence shall be drawn from his failure to testify,*® and such an in- struction is not objectionable as a comment on the failure of the ' defendant to testify in his own behalf.*' In other jurisdictions a contrary rule prevails and it is, held error for the court to charge that the failure of the defendant to produce evidence within his reach is a proper mattei; for the consideration of the jury,** or to charge that, if a party does not offer the .most satis- factory evidence within his power to produce, the evidence offered by him should be viewed with distrust,** or to charge in general terms that the omission to produce evidence within a party's reach to repel an accusation raises a presumption that it is well found- ed;*" it being held in one jurisdiction that such a charge is, where the defendant has introduced no testimony, in derogation of his privilege to make a statement which the jury may believe if it sees fit.*^ In one jurisdiction, where the defendant in a crim- inal case can vise his wife as a witness if she consents, it is not improper to instruct that, while a wife is not a competent witness against her husband, the defendant has a right to call her if he so desires ; *" but it is error for the court to go on and still further instruct that the failure of the defendant to call her may be con- sidered as a circumstance against him.** In some jurisdictions, if it does not appear that the accused, if innocent, has it in his power to produce evidence controverting or explaining the testimony against him, except by testifying in his own behalf, the court is bound to charge on request that the 8 5 state V. Grebe, 17 Kan. 458; Am. Rep. 369; Knowles v. People, 15 Commonwealth v. Brownell, 145 Mass. Mich. 408. 319, 14 N. B. 108; State v. Callahan, s 9 People v. Charles, 99 P. 383, 9 69 A. 957, 76 N. J. Law, 426, Judg- Cal. App. 33S. ment affirmed 73 A. 235, 77 N. J. Law, *» Jones v. State, 82 S. E. 470, 14 685. Ga. App. 811; Mills v. State, 65 S. 86 Commonwealth v. Johnson, 85 N. B. 368, 133 Ga. 155. E. 188, 199 Mass. 55. *i Wilson v. State, 70 S. E. 193, 8 Contra — Commonwealth v. Har- Ga. App. 816. low, 110 Mass. 411. *2 Rhea v. Territory, 105 P. 314, 87 State V. Rodman, 62 Iowa, 456, 3 Okl. Or. 230. 17 N. W. 663. *3 Stutsman v. Territory, 54 P. 707, 88 Clem V. State, 42 Ind. 420, 13 7 Okl. 490. §198 INSTRUCTIONS TO JURIES 390 failure of the accused to produce any evidence is not to be con- sidered by the jury,** and the court may be required to charge that the failure of an alleged coconspirator to testify raises no presumption that his testimony, if given, would be against the defendant.*^ On the other hand, it is proper, in some jurisdic- tions, to refuse to charge that the failure of the accused to offer any evidence other than his own shall not be considered a cir- cumstance against him,*® or that the failure of the accused to call his coindictees as witnesses shall not be considered by the jury.*' Where the court has charged that no presumption is to be drawn against the defendant because of his failure to testify, ' it is not error in some jurisdictions to refuse to further charge that the jury should draw no inference against him because of his failure to procure witnesses to show where he was on the day of the -crime.** Ordinarily the court has discretion to refuse to charge that the failure of the state to produce witnesses to certain facts to testify to them will operate against the conten- tions of the state or is a matter to be considered by the jury.** The circumstances may be such, however, that it will be error to ** Ormsby v. People, 53 N. T. 472. Compare People v. Hummel, 104 N. y. S. 308, 119 App. Div. 153. Alisence of evidence on wbicli to base instmction. Instructions to the effect that no inference could be drawn against accused for his fail- ure to produce witnesses who were beyond the reach of process, or could have been called by the prosecution as readily as by the defendant, were properly refused, where there was no evidence to which they applied. Peo- ple V. Bond, 125 N. B. 740, 291 lU. 74. * 5 People V. Glass, 112 P. 281, 158 Cal. 650. *o Carter v. State, 118 P. 264, 6 Okl. Cr. 232. *» State V. Hogan, 88 N. W. 1074, 115 Iowa, 455 ; State v. White, 87 P. 137, 48 Or. 416. •IS Taylor v. Commonwealth, 90 Va. 109, 17 S. E. 812. *» Commonwealth .v. Farrell, 137 Mass. 579; Commonwealth v. Schmous, 162 Pa. 326, 29 A. 644; State V. Buctman, 52 A. 427, 74 Vt. 309. See State v. Hayden, 107 N. W. 929, 131 Iowa, 1. Failure to produce ^ritnesses un- friendly to tlie state. Where the state Introduced only circumstantial evidence of defendant's giiilt, while eyewitnesses of the homicide were present in court, but were unfriendly to the state, a charge that the state was required to introduce the best evidence obtainable, and that, if it was probable that there were eye- witnesses by whom the state could have proven the act of killing, it was the duty of the state to produce such evidence, and that, if it did not do so, defendant could not be convicted on circumstantial evidence, was properly refused. McCandless v. State, 62 S. W. 745, 42 Tex. Cr. R. 655. Failure to produce ivitness ac- cessible to defendant. Where the state in a prosecution for homicide omitted to introduce a witness who was present at the place of the homi- cide, but was not shown to have seen the killing, which witness was in court accessible to the defendant, tlie court did not err in refusing to charge statute, relating to the presumption arising from a failure to produce evi- dence. Harper v. State, 59 S. E. 792, 129 Ga. 770. 391 INSTRUCTIONS ON PRESUMPTIONS AND INFERENCES § 199 refuse to instruct that the jury may consider the failure of the state to put on the stand witnesses present in court.®' It is proper to charge, where there is evidence to support it, that the act of the defendant in knowingly invoking false evidence may be considered against himj^^ but to justify such an instruc- tion there must be something more than a mere contradiction be- tween the testimony of the defendant and that of the witnesses against him®* and it is error to instruct that such an act will raise a strong presumption of guilt.®* D. Failure of Party in Civil Case to Testify § 199. In general In civil cases in some jurisdictions courts frequently with en- tire propriety comment on the failure of a party to testify in a case,®* and in some jurisdictions it is proper for the court to per- mit the jury to draw inferences unfavorable to a party, having knowledge of the facts' in controversy, from his failure to be present at th£ trial and testify.** But an instruction which per- mits unfavorable inferences to be drawn against one for claiming the protection of a statute which precludes the adverse party in an action by or against a personal representative from testifying is erroneous,®* and it is error to authorize adverse inferences from the failure of a party to take the stand, where it does not appear that he knows the truth of the transaction in question, and any evidence that he could give would be purely negative,®' and where the plaintiff has failed to make out his case, it is error to tell the jury that they may consider the fact that the defendant has not been called to deny the allegations of the plaintiff.®* In some ju- 50 People V. Fiori, 108 N. Y. S. 416, matter connected with his "payment 123 App. Div. 174 ; People v. Smith, should not be considered against him. 99 N. T. S. 118, 113 App. Div. 396. was properly refused as prejudicing 51 Allen V. United States, 17 S. Ct. the plaintiff for exercising a lawful 154 164 U. S. 492, 41 h. Ed. 528. right; no comment having been made "State V. Vance, 80 Ala. 356; ^"^ '^l^ ^^"^"^^ t° *^^"^y t'^^?^'°-„^^*f: Beck V. State, 80 Ala. 1. t^^^eie' ^•-^^'•^^"' ^22 S. W. 1095, 145 53 sater v. State, 56 Ind 378 . ""^-^Xkett v. Levengston (C. C. A. 54 Steltemeler v. Barrett, 122 S. W. jj,) 358 F. 889, 169 C. C. A. 609; 1095, 145 Mo. App. 5iJ4. Wilson v. Northwestern Nat. Life Ins. Refusal to give reason for fail- Co., 114 N. W. 251, 103 Minn. 35; nre of party to testify. In an ac- Brooks v. Steen, 6 Hun (N. Y.) 516. tlon by an administrator on a note, 5 8 Ludlow v. Pearl's Estate, 55 Mich, a requested instruction that, as de- 312, 21 N. W. 315. fendant could not testify to any 57 Emory v. Smith, 54 Ga. 273. transaction with decedent showing 5 s American Underwriters' Ass'n v. payment, his failure to explain any George, 97 Pa. 238. § 200 INSTRUCTIONS TO JURIES 892 risdictions it is not proper for the court in- any way to call the attention of the jury to the failure of- a party to testify in his own behalf.^* E. Failure of Accused to Testify § 200. Propriety of instructions at common law At common law, where the defendant in a criminal case does not take the witness stand in his own behalf, the trial court may call the attention of the jury to his failure to deny inculpatory facts which, if false, he must know to be so,®" and this rule ap- plies where the accused, on voluntarily testifying for himself, omits to explain incriminating circumstances as to which he is informed.®-' § 201. Propriety and necessity of instructions under statutes In many jurisdictions, by force of statutory provisions, it is error for the court to call the attention of the jury to the failure of an accused to avail himself of his privilege to testify, or to make any allusion to such failure, except by way of caution against drawing any adverse inference therefrom.®" Such a stat- es Moore v. Wright, 90 lU. 470. 80 N. J. State^ v. Frank, 102 A. 1054, 91 N. J. Law, 718, affirming judgment 100 A. 606, 90 N. J. Law, 78 ; State v. Connors, 94 A. 812, 87 N. J. Law, 419 ; State v. Schlosser, 89 A. 522, 85 N. J. Law, 165, judgment af- firmed 91 A. 1071, 86 N. J. Law, 374; State V. Di Benedetto, 82 A. 521, 82 N. J. Law, 168, judgment affirmed 85 A. 1135, 83 N. J. Law, 792; State v. Callahan, 73 A. 235, 77 N. J. Law, 685, affirming judgment 69 A. 957, 76 N. J. Law, 426 ; State v. Skillman, 70 A. 83, 76 N. J. Law, 464, judgment af- firmed 76 A. 1073, 77 N. J. Law, 804 ; State V. Twining, 64 A. 1073, 1135, 73 N. J. Law, 683, affirming judgment 62 A. 402, 73 N. J. Law, 402, and judgment affirmed Twining v. State of New Jersey, 29 S. Ct. 14, 211 U. S. 78, 53 L. Ed. 97; State v. Banusik, 64 A. 994, 84 N. J. Law, 640; State v. Wines, 46 A. 702, 65 N. J. Law, 31. Pa. Commonwealth v. Chickerella, 96 A. 129, 251 Pa. 160. 61 Caminetti v. United States, 37 S. Ct. 192, 242 U. S. 470, 61 L..Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168, affirming judgments DIggs v. Same (C. 0. A. Cal.) 220 F. 545, 136 C. C. A. 147, and Hays v. Same (C. 0. A. Okl.) 231 F. 106, 145 C. C. A. 294. 62 Cal. People V. Andrade, 154 P. 283, 29 Cal. App. 1. Mich. People V. Peterson, 131 N. W. 153, 166 Mich. 10. minn. State v. Richman, 173 N. W. 718, 143 Minn. 314. Mo. Steltemeier v. Barrett, 122 S. W. 1095, 145 Mo. App. 534. Neb. Lamb v. State, 95 N. W. 1050, 69 Neb. 212. N. Y. People V. Fitzgerald, 50 N. E. 846, 156 N. Y. 253, reversing judg- ment 46 N. Y. S. 1020, 20 App. Div. 139; RulofC v. People, 45 N. Y. 213; In re Ruloff, 11 Abb. Prac. (N. S.) 245. Okl. McLaughlin v. State, 169 P. 657, 14 Okl. Or. 192 ; Holmes v. State, 162 P. 446, 13 Okl. Cr. 113. Instructions erroneous xiritliin rule. Instruction that, if weaker evi- dence is offered when stronger evi- dence was within the party's power, the evidence ofCered should be viewed with distrust, was erroneous, where accused offered no evidence. People V. Carroll, 128 P. 4, 20 Cal. App. 41. To instruct that the jury shall not give defendant's failure to testify "any unfair consideration" implies 393 INSTRUCTIONS ON PRESUMPTIONS AND INFERENCES §201 ute does not prevent the court from calling attention to the priv- ilege of the defendant to refuse to testify, if it seems that the jury may be misled, provided it is made clear that nothing preju- that they may give it a fair considera- tion, and can consider it so long as they do not do so unfairly. People v. Mitchell, 129 N. W. 698, 164 Mich. 583. Under the statute providing that a defendant in a criminal case is not to be prejudiced by his failure to testify in his own behalf, v?here, in a prosecu- tion for larceny, the defendant was not sworn as a witness, it was legal error to charge that the failure of de- fendant to take the stand does not create a presumption against him, but that, when he does take the stand In his own behalf, he can be sub.iected to all iforms of cross-examination, like any other witness in the case. People V. Ryan, 105 N. Y. S. 160, 120 App. Div. 275. Where the only evidence connecting the defendant with the of- fense of keeping intoxicating liquors with intent to sell them was, in effect, that he was seen in a room adjoining the barroom in which the liquors were kept, and the defendants offered no evidence, it was error for the court to read to the jury a charge, given in another case on a different state of facts, to the effect that an inference of guilt may be drawn from failure to offer explanatory evidence, when it is apparent that such evidence, if it exists, is within the power of the ac- cused, although such charge is quali- fied by the statement that the explana- tory evidence referred to must be evidence other than defendant's own testimony. Commonwealth v. Maloney, 113 Mass. 211. Instructions not erroneous ■mitli- in rule. A charge, on the trial of an indictment for the violation of the oleomargarine act, as follows : "Now, gentlemen, the only question for you to determine is whether or not this testimony is to be relied upon. It is not contradicted in any way. No wit- nesses were called here to controvert what has been said by these witnesses (referring to witnesses for the com- monwealth), and it will be for you to take the testimony and see whether the product that was bought as oleo- margarine was the same analyzed by the chemists and contained coal tar dye, and then whether the chemists here, without being contradicted in any way, are to be relied upon as truthful witnesses." Commonwealth V. McDermott, 37 Pa. Super. Ct. 19. An instruction that accused may make such statement as he deems proper in his defense as to which he is not subject to cross-examination without his consent. Harper v. State, 59 S. E. 792, 129 Ga. 770. On a trial for larceny, a Statement "that no at- tempt had been made by defendant to explain his possession of the proper- ty," when borne out by the evidence, will not be constmed as a comment on defendant's failure to take the stand in his own belialf. State v. Preston, 77 Mo, 294. The instruction on the trial of B. and N., of whom B. only testified, that a defendant may testify or not, as he pleases, and that when a defendant testifies the same rules are to apply to him as to other witnesses, cannot be complained of by N. as a violation of the statute against reference to or comment on the subject of a defendant not testi- fying. People V. Spira, 106 N. E. 241, 264 111. 243. An instruction to the jury that the failure of accused to testify does not relieve the state from the obligation to produce evidence which will establish guilt beyond a reasonable doubt is not such a refer- ence to the refusal of accused to testi- fy as to require reversal of a judg- ment of guilty. Tate v. State, 81 N. B. 973, 76 Ohio St. 537, 10 Ann. Cas. 949, affirming judgment 29 Ohio Cir. Ct. R. 410. Where, in a prosecution for grand larceny, there was evidence that defendant, fraudulently repre- senting himself to be in control of a corporation owning certain lands, ob- tained money from prosecuting wit- nesses, a charge that "now defendant has not taken the stand, and you must not pay any attention whatever to that. We are not here to save fools from the consequences of their folly; the duty as to that rests with the Almighty" — was not prejudicial to §202 INSTRUCTIONS TO JDEIES 394 dicial to him may be assumed from his failure to testify.** A reference to certain testimony for the prosecution as being uncon- tradicted does not, in itself, constitute an improper comment on the failure of the accused to testify ; ^* it not being plain that no one but the defendant could have disputed such testimony.** In some jurisdictions a charge referring to the right of the defend- ant to testify and his failure to exercise his privilege is not error, when accompanied by the statement that the jury should not consider such failure or take it as a circumstaijice against the de- fendant.*" § 202. Cautioning jury against considering failure to testify In a number of jurisdictions the court should charge on re- quest that the failure of the defendant to testify creates no pre- sumption against him, and is to be excluded altogether from the consideration of the jury,*' there being an express statutory xe- ■flefendant as referring to his failure to testify in his own behalf. People V. Langley, 100 N. Y. S. 123, 114 App. Div. 427. Effect of provision concerning unsworn statements. In Wyoming, in which jurisdiction the statute per- mits the defendant to elect either to ibe sworn and examined as a witness or to make a statement without being sworn, a statutory provision that no reference to, or comment upon, the neglect or refusal of the accused to make an unsworn statement shall be made, is held to prevent comment upon the failure of the defendant to testify under oath where he has electa ed to make an unsworn statement. Anderson v. State (Wyo.) 196 P. 1047. 03 State V. Dodson, 136 N. W. 789, 23 N. D. 305. 64 Sidebotham v. United States (C. O: A. Mont) 253 F, 417, 165 C. 0. A. 159. 6 5 Shea V. United States (C. C. A. Ohio) 251 F. 440, 163 C. C. A. 458, writ of certiorari denied 39 S. Ct. 132, 248 U. S. 581, 63 L. Ed. 431. 68 Neb, Ferguson v. State, 72 N. W. 590, 52 Neb. 432, 66 Am. St. Rep. 512. Tex. O'Hara v. State, 124 S. W. 95, 57 Tex. Cr. R. 577 ; Davis v. State, 114 S. W. see, 54 Tex. Or. R. 236; Fine V. State, 77 S. W. 806, 45 Tex. Cr. R. 290; Fulcher v. State, 28 Tex. Apf). '465, 13 S. W. 750. Vt. State v. O'Grady, 65 Vt. 66, 25 A. 905. 6 7 Ala. Thomas v. State, 86 So. 734, 139 Ala. 80. Ark. Threat v. State, 161 S. W. 139, 110 Ark. 152. 111. People V. Michael, 117 N. E. 193, 280 111. 11; Farrell v. People, 133 111. 244, 24 N. E. 423. Iowa. State V. Camagy, 76 N. W. 805, 106 Iowa, 483. Kan. State v. GofC, 61 P. 683, 62 Kan. 104, reversing judgment 61 P. 680, 10 Kan. App. 286 ; State v. Evans, 58 P. 240, 9 Kan. App. 889. Me, State v. Landry, 85 Me. 95, 26 A. 998. Micb. People V. Provost, 107 N. W. 716, 144 Mich. 17, 8 Ann. Gas. 277. Miss. Haynes v. State, 27 So. 601 ; Flinches v. State, 87 So. 487. N. M. Territory v. Donahue, 113 P. eOl, 16 N. M. 17. V/asb. State V. Gustafson, 152 P. 335, 87 Wash. 613; State v. Hanes, 147 P. 193, 84 Wash. 601; Linbeck V. State, 1 Wash. 336, 25 P. 452. Instructions beld sufficient on tbis point. An instruction "that de- fendant's failure to testify must not be referred to in the argument of the cause, or commented upon, , referred to, or in any manner considered by the jury in determining the case." Beavers v. State, 58 Ind. 530. An in- struction that no inference of guilt "should" arise in the jury's mind 395 INSTRUCTIONS ON PRESUMPTIONS AND INFERENCES 202 quirement that the court so instruct in some jurisdictions/* and the fact that at the time of an improper reference by the prose- cuting attorney to the failure of the defendant to take the stand the court tells the jury that no advantage can be taken by the state of such failure does not justify it in afterwards refusing to give an explicit instruction that no inference can be drawn against him because of such failure.®* j In most jurisdictions, whether requested to give such an in- struction or not, it is proper for the court to caution the jury against drawing any inferences unfavorable to the defendant from his failure to testify.''* The failure to give such a cautionary iri- from defendant's silence is not ground for reversal for failure to use the mandatory word "shall." State v. Krug, 12 Wash. 288, 41 P. 126. 6 8 Thrawley v. State, 55 N. E. 95, 153 Ind. 375; Neal v. State, 175 N. W. 669, 104 Neb. 56 ; State v. Myers, 8 Wash. 177, 35 P. 580, 756 ; Leonard V. Territory, 2 Wash. T. 381, 7 P. 872. Instructions sufficiently comply- ing with th.e statute. An instruc- tion stating that the "statute express- ly declares that defendant's neglect to testify shall not create any pre- sumption against him." State v. Mitchell, 72 P. 707, 32 Wash. 64. An instruction that, "while the statute * * * provides that a person charged with crime may testify in his own behalf, he is under no obligation to do so, and the statute expressly makes it the duty of the court to in- struct the jury that no inference of guilt shaU arise against the accused if the accused shall fail or refuse to testify as a witness in his own behalf, and the court so instructs." State v. Deatherage, 77 P. 504, 35 Wash. 326. 6 9 People V. Messer, 111 N. W. 854, 148 Mich. 168. 70 U. S. (0. C. A. Tenn.) Robilio v. United States, 259 F. 101, 170 O. C. A. 169. Ala. Brandes v. State, 65 So. 307, 10 Ala. App. 239. Ga. Stephens v. State, 94 S. E. 69, 21 Ga. App. 151. Idaho. State V. Levy, 75 P. 227, 9 Idaho, 483. lomra. State v. Weems, 96 lowa, 426, 65 N. W. 387. Kan. State v. Olsen, 127 P. 625, 88 Kan. 136 ; State v. Skinner, 34 Kan. 256, 8 P. 420. La. State V. Johnson, 23 So. 199, 50 La. Ann. 188. Mass. Commonwealth v. Brown, 45 N. B. 1, 167 Mass. 144. Mich. People v. Murphy, 108 N. W. 1009, 145 Mich. 524; People v. Murnane, 182 N. W. 62, 213 Mich. 205. Mo. State v. De Witt, 84 S. W. 956, 186 Mo. 61. Mont. State v. Fuller, 85 P. 369, 34 Mont. 12, 8 L. R. A. (N. S.) 762, 9 Ann. Cas. 648. Neb. Lillie v. State, 100 N. W. 316, 72 Neb. 228. N. M. State v. Graves, 15T P. 160, 21 N. M. 556. N. D. State V. Wisnewski, 102 N. W. 883, 13 N. D. 649, 3 Ann. Cas. 907 ; State V. Currie, 102 N. W. 875, 13 N. D. 655, 69 L. K. A. 405, 112 Am. St. Rep. 687. Ohio. Sullivan v. State, 9 Ohio Cir. Ct. R. 652. S. D. State V. Carlisle, 132 N. W. 686, 28 S. D. 169, Ann. Cas. 1914B,. 395. Tex. Wlllingham v. State, 136 S. W. ,470, 62 Tex. Cr. R. 55 ; Kinkead V. State, 135 S. W. 573, 61 Tex. Cr. R. 651; Dougherty v. State, 128 S. W. 398, 59 Tex. Cr. R. 464; Matthews V. State, 122 S. W. 544, 57 Tex. Cr. R. 328; Cravens v. State (Cr. App.) 103 S. W. 921 ; Hemdon v. State, 99 S. W. 558, 50 Tex. Cr. R. 552 ; McCoy V. State (Cr. App.) 81 S. W. 46 ; Loun- der V. State, 79 S. W. 552, 46 Tex. Cr. R. 121; Grant v. Same, 70 S. W. 954, 44 Tex. Cr. R. 311 ; Pearl v. Same, 63 S. W. 1013, 43 Tex. Cr. R. 189; Parker v. Same, 49 S. W. 80, 40 Tex. Cr. R. 119; Unsell v. Same (Cr. App.) 45 S. W. 902; Guinn v. State, 45 S. W. 694, 39 Tex. Cr. B. 257. 202 INSTRUCTIONS TO JURIES 396 struction will not, however, ordinarily constitute error, in the absence of a request therefor," and in some jurisdictions it is proper to refuse such a request;'* it being considered that the statutes prohibiting comment on the failure of the accused to testify justify such refusal.'^ In two jurisdictions it is held that the defendant is entitled to absolute silence upon the subject of his failure to testify, and that the giving of such a cautionary in- struction will constitute positive error.'* In Oklahoma such an instruction, while regarded as improper,'^ is not considered fun- damentally erroneous, and in the absence of any objection or exception properly taken, will not be cause for reversal.'® Vt. State V. Rossi, 102 A. 1030, 92 Vt. 187 ; State v. Cameron, 40 Vt. 555. Instrnctions held sufficient on this head. An instruction that it was not incumbent on defendant to testify in his own behalf ; that a fail- ure to do so was not even a circum- stance against him, and no presump- tion of guilt could be Indulged by the jury on account of his faUure; nor could the same be considered by the jury for any purpose — was sufllcient, without a further statement that the jury should not discuss, comment on, or in any way allow it to Influence them in arriving at their verdict. An- derson V. State, 110 S. W. 54, 53 Tex. Or. R. 341. In a trial for homicide, a charge that the law allows defend- ant to testify in his own behalf, but a failure to do so is not even a cir- cumstance against him, and no pre- sumption of 'guilt can be indulged in I by the jury on account of such fail- ure on his part, and the jury will not mention, discuss, or even refer to the fact that defendant failed to testify, was proper, and not objectionable as not in terms instructing the jury that they could not consider defendant's failure to testify. Singleton v. State, 124 S. W. 92, 57 Tex. Or. R. 560. 71 Cal. People v. Rogers, 126 P. 148, 163 Cal. 476; People v. Flynn, 73 Cal. 511, 15 P. 102. Colo. Matthews v. People, 6 Colo. App. 456, 41 P. 839. Conn. State v. 'Williams, 96 A. 370, 90 Conn. 126. Ga. Bargeman v. State, 88 S. E. 591, 17 6a. App. 807. Ind. Felton v. State, 139 Ind. 531, 39 N. E. 228; Foxwell v. State, 63 Ind. 539. Iowa. State V. Stevens, 67 Iowa, 557, 25 N. "W. 777. Kan. State V. Younger, 78 P. 429, 70 Kan. 226 ; City of Holton v. Bim- rod, 55 P. 505, 8 Kan. App. 265. Mich. People v. Warner, 104 Mich. 337, 62 N. W. 405. Neb. Metz v. State, 46 Neb. 547, 65 N. W. 190. N. D. State V. Lesh, 145 N. W. 829, 27 N. D. 165. Or. State V. Magers, 58 P. 892, 36 Or. 38. Tex. Bosley v. State, 153 S. W. 878, 69 Tex. Or. R. 100; Adams v. State (Or. App.) 105 S. W. 497; Torey V. State, 56 S. W. 60, 41 Tex. Or. R. 543; Prewitt v. Same, 53 S. W. 879, 41 Tex. Or. R. 262 ; Morrison v. State, 51 S. W. 358, 40 Tex. Or. R. 473. '2 Cal. People V. Romero, 121 P. 698, 17 Cal. App. 680. Idaho. State v. Gruber, 115 P. 1, 19 Idaho, 692. Okl. Conley v. State, 179 P. 480, 15 Okl. Or. 531; Dunn v. State, 176 P. 86, 15 Okl. Or. 245. Wyo. Leslie v. State, 65 P. 849, 10 Wyo. 10 ; Id., 69 P. 2, 10 Wyo. 10. 73 State V. GifCord (Mo. Sup.) 186 S. W. 1058; State v. Taylor, 168 S. W. 1191, 261 Mo. 210; State v. Robin- son, 117 Mo. 649, 23 S. W. 1066. 74 Tines v. Commonwealth, 77 S. W. 363, 25 Ky. Law Rep. 1233 ; State v. Pearce, 56 Minn. 226, 57 N. W. 652. In California it is held that the giving of such an Instruction is not proper practice. People v. Ruef, 114 P. 54, 14 Gal. App. 576. 7 6 McLaughlin v. State, 169 P. 657, 14 Okl. Or. 192. 7 6 Russell V. State (Okl. Or. App.) 194 P. 242. 397 INSTRUCTIONS ON BUEDEN OF PROOF 203 CHAPTER XIII INSTRUCTIONS ON BURDEN OF PROOF § 203. Necessity and propriety. 204. Necessity of request for instructions, 205. SuflBciency of instructions. 206. Shifting burden of proof. 207. EfEect of erroneous instruction. \ Propriety of instructions on burden of proof as to alibi, see post, § 336. § 203. Necessity and propriety While in one jurisdiction it is considered to be the better prac- tice not to refer specially to the burden of proof, but to simply frame the instructions so as to indicate such burden, and to tell the jury to decide as they believe from the evidence the fact to be,^ the general rule is that instructions telling the jury upon whom the burden of proof rests are proper,* and should be given both in civil * and in criminal cases,* if a request is made therefor.® 1 Bannon v. Louisville Trust Co., 150 S. W. 510, 150 Ky. 401 ; Mussel- lam V. Cincinnati, N. O. & T. P. Ry. Co., 104 S. W. 337, 126 Ky. 500, 31 Ky. Law Rep. 908 ; Henning v. Steven- son, 80 S. W. 1135, 118 Ky. 318, 26 Ky. Law- Rep. 159; Mills v. Louisville & N. R. Co., 76 S. W. 29, 116 Ky. 309, 25 Ky. Law Rep. 488 ; Macon v. Padu- cah St. Ry. Co., 62 S. W. 496, 23 Ky. Law Rep. 46, 110 Ky. 680 ; Ragsdale V. Ezell, 15 Ky. Law Rep. (abstract) 495; Louisville & N. R. Co. v. Hofge- sang, 13 Ky. Law Rep. (abstract) 829 ; Tabler v. Jones, 12 Ky. Law Rep. (abstract) 189. 2 Conn. Coogan v. Lynch, 89 A. 906, 88 Conn. 114. 111. Zink V. National Council, Knights and Ladies of Security, 199 111. App. 376 ; McMahon v. Scott, 132 111. App. 582. Md. Meyer v. Frenkil, 82 A. 208, 316 Md. 411, Ann. Cas. 1913C, 875. Tex. Chittim v. Martinez, 58 S. W. 948, 94 Tex. 141. Wis. Illinois Steel Co. v. Paczo- cha, 119 N. W. 550, 139 Wis. 23. 8 Buttrill Guano Co. v. Curry, 92 S. E. 521, 147 Ga. 11; Levy v. Jarrett (Tex. Civ. App.) 198 S. W. 333 ; Bos- well V. Pannell, 180 S. W. 593, 107 Tex. 433, modifying Judgment (Civ. App.) 146 S. W. 233; Irvin v. Johnson, 98 S. W. 405, 44 Tex. Civ. App. 436. Special issues. The court should charge on the issues involved, includ- ing the burden of proof, though the case is submitted on special issues. Goree v. Uvalde Nat. Bank (Tex. Civ. App.) 218 S. W. 620; ^exas Baptist University v. Patton (Tex. Civ. App.) 145 S. W. 1063. iLane v. State, 85 Ala. 11, 4 So. 730; McGuire v. State, 13 Smedes & M. (Miss.) 257; Gammel v. State, 163 N. W. 854, 101 Neb. 532, opinion modi- fled on rehearing 166 N. "W. 250, 101 Neb. 532; Orner v. State, 143 S. W. 935, 65 Tex. Cr. R. 137; Lensing v. State (Tex. Cr. App.) 45 S. W. 572. Burden of shoiving competency to commit crime. In a prosecution of a person between the' ages of 10 and 14 years, it was error to refuse an instruction that the burden was on the state to prove accused's corn- petency to commit the crime, though the ' court instructed that, in deter- mining his mental responsibility and knowledge of good and evil, the jury should consider all the circumstances, and acquit if they had a reasonable doubt. Brown v. State, 78 S. E. 352, 12 Ga. App. 722. Clouston V. Maingault, 150 S. W. 858, 105 Ark. 213 ; Johnson v. Chica- go City Ry. Co., 166 111. App. 79; § 203 INSTRUCTIONS TO JURIES 398 Particularly should such an instruction be given where the cir- cumstances are such as to place the bvirden of proof upon the defendant as to certain matters.* The state of the evidence or the circumstances of the case may, however, make it proper to refuse a charge on the burden of proof," or there may be such admissions by one party or the other as to make it harmless error to refuse to so instruct.* So it is proper to refuse such a charge where the evidence is practically uncontradicted, or conclusively proves the fact in issue,® or where the question is simply one as to the credibility of conflicting witnesses.** Where the court has charged that the plaintiff, in order to re- cover, must make out his case by a preponderance of the evidence, it is not error to refuse a further charge that the burden is on him to prove his case by the evidence,** and the trial judge is under no obligation to make known his views of the relative con- dition of the parties as to the burden of proof at every stage of the proceedings.** Berger v. St. Louis Storage & Com- mission Co., 116 S. W. 444, 136 Mo. App. 36; Franklin v.Friehofer Vien- na Baking Co., 58 A. 82, 71 N. J. Law, 112 ; McOormicli v. City of New York, 147 N. Y. S. 917, 162 App. Div. 539. 6 Stevens v. Pendleton, 53 N. W. 1108, 94 Mich. 405; Melninch v. Evans, 133 N. W. 187, 90 Neb. 243; Orugley v. Grand Trunk Ey. Co. (N. H.) 108 A. 293 ; Smith v. Smith (Tex. Civ. App.) 200 S. W. 540. I St. Louis Southwestern Ey. Co. of Texas v. Preston (Tex. Civ. App.) 228 S. W. 928 ; Producer's Oil Co. v. State (Tex. Civ. App.) 213 S. W. 349 ; Davis V. Davis, 49 S. W. 726, 20 Tex. Civ. App. 310 ; Howard v. Britton, 71 Tex. 286, 9 S. W. 73. s Dillard v. Louisville & N. E. Co., 2 Lea (Tenn.) 288. » In re Yetter's Estate, 55 Minn. 452, 57 N. W. 147 ; Milmo Nat. Bank V. Convery (Tex. Civ. App.) 49 S. W. 926. 10 Texas & N. O. E. Co. v. Syfan (Tex. Civ. App.) 43 S. W. 551. II City of Victoria v. Victoria Coun- ty (Tex. Civ, App.) 115 S. W. 67; Houston Ice & Brewing Co. v. Nicollni (Tex. Civ. App.) 96 S. "W. 84; Gal- veston City Ey. Co. v. Chapman, 80 S. W. 856, 35 Tex. Civ. App. 551 ; West- em Union Tel. Co. v. Bowles (Tex. Civ. App.) 76 S. W. 456 ; Houston & T. C. R. Co. V. Dotson, 38 S. W. 642, 15 Tex. Civ. App. 73. Effect of instmction reqnirinp; clear and unequivocal proof. In an action for personal services, where the jury were instructed that the con- tract must be established by clear and unequivocal proof, it is not error to refuse to give anotber instruction putting the burden on plaintiff to prove the existence of the contract. Rudy V. Rudy, 33 Ohio Clr. Ct. R. 359. Failure to rettnest more specific instructions. An instruction, con- cerning the burden of proof, that plaintift must prove the affirmative is- sues tendered by his complaint by a preponderance of evidence, is suffi- cient when no further instruction is requested. Nlchol" v. Laumeister, 102 Cal. 658, 36 P. 925. i2Hovey V. Hobson, 55 Me. 256; Mears v. Mears, 15 Ohio St. 90. 399 IXSTEUCTlONS ON BURDEN OP PROOF §204 § 204. Necessity of request for instructions In the absence of any request for instructions on the burden of proof, it will ordinarily not be error to fail to give them/* and where the court has laid down in general terms the rule as to preponderance of the evidence, the failure to give more specific instructions on the burden of proof is not error, in the absence of a request therefor.^* So where the court correctly charges as to the general burden of proof, its failure to instruct as to the shifting of the burden which may arise during the case is not error, unless a request has been made for such an instruction,^^ but, where affirmative matter is set up in an answer, the court, on its own motion, should instruct the jury that as to such mat- ter the burden of proof is upon the defendant,^* and a positive IS Cal. Wyatt v. Pacific Electric Ry. Co., 103 P. 892, 156 Cal. ITO. • Conn. Miles v. Strong, 36 A. 55, 68 Conn. 273. Ga. Purity Extract & Tonic Co. v. Holmes-Hartsfleld Co., 92 S. E. 548, 20 Ga. App. 105; Lazenby v. Citi- zens' Bank, 92 S. E, 391, 20 Ga. App. 53; Western Union Telegraph Co. v. Travis, 86 S. E. 221, 144 Ga. 110; Mirtin v. Gibbons, 80 S. B. 522, 14 Ga. App. 136; Whittle v. Central of Geor- gia Ry. Co., 74 S. E. 1100, 11 Ga. App. 257; Johnson v. Reeves, 66 S. E. 1081, 133 Ga. 822; Southern Ry. Co. V. Wright, 64 S. E. 703, 6 Ga. App. 172. 111. Drury v. Connell, 52 N. E. 368, 177 111. 43. Iowa. D. M. Osborne & Co. v. Ringland & Co., 98 N. W. 116, 122 Iowa, 329; Harvey v. City of Clarin- da, '82 N. W. 994, 111 Iowa, 528 ; Reiz- enstein v. Clark, 73 N. W. 588, 104 Iowa, 287. Ky. Anderson v. Baird, 40 S. W. 923. Mass. Nicholson v, Feindel, 107 N. E. 353, 219 Mass. 490. Mich. Donovan v. Bromley, 71 N. W. 523, 113 Mich. 53. Minn. In re Paulson's Estate, 150 N. W. 914, 128 Minn. 277. Mo. Denny v. Brown (Sup.) 193 S. W. 552; Eminence Realty & Broker- age Co. v. Randolph (App.) 180 S. W. 25. • S. D. Frye v. Ferguson, 6 S. D. 392, 61 N. W. 161. Tenn. Shelby County v. Fisher, 194 S. W. 576, 137 Tenn. 507. Tex. San Antonio & A. P. Ry. Co. V. Moerbe (Civ. App.) 189 S. W. 128 ; Hall V. Ray (Civ. App.) 179 S. W. 1135 ; Franklin v. International & 6. N. Ry. Co. (Civ. App.) 174 S. W. 333; McKee V. Garner (Civ. App.) 168 S. W. 1031 ; Texas Baptist University v. Patton (Civ. App.) 145 S. W. 1063; Louisiana & T. Lumber Co. v. Dupuy, 52 Tex. Civ. App. 46, 113 S. W. 973. Wis. Coppins v. Town of JefEer- son, 105 N. W. 1078, 126 Wis. 578. Evidence not conflicting. Fail- ure to Instruct the jury that the bur- den of proof was on plaintiff, and that before he could recover he must produce a fair preponderance of the testimony, is not error when the evi- dence is not conflicting, and no such Instruction is requested by defendant. Smith V. Chicago, M. & St. P., Ry. Co., 60 Iowa, 512, 15 N. W. 303. 1* Brandon v. Pritchett, 66 S. E. 247, 133 Ga. 480; Central of Georgia By. Co. V. Manchester Mfg. Co., 64 S. B. 1128, 6 Ga. App. 254; Houston & T. C. R. Co. V. Lemair, 119 S. W. 1162, 55 Tex. Civ. App. 237 ; Wichita Land & Cattle Co. V. State, 80 Tex. 684, 16 S. W. 649. 1" Albany Warehouse Co. v. Hill- man, 94 S. E. 569, 147 Ga. 490. 16 Whipple V. Preece, 56 P. 296, 18 Utah, 454. - In a will contest, where the court ruled at the beginning that the bur- den was on proponent, but charged § 205 INSTRUCTIONS TO JURIES 400 misdirection as to the burden of proof is ground for reversal, although no other instruction calling the attention of the court to such error is requested/'" and in a .criminal case, where the state has put in evidence the written statement of the defendant as to the manner of committing the act alleged to constitute the crime of which he is accused, the court, although not requested so to do, should charge that the burden is on the. state to disprove such statement.^* § 205. Stifficiency of instructions Where a charge on the burden of proof is given, it should be so framed as to place the burden on the plaintiff to prove all the facts necessary to entitle him to recover,^* and an instruction that the plaintiff has the burden of proving the material allegations of • his complaint, without stating what allegations are material, will not warrant the refusal of a request for more specific 'instruc- tions.** On the other hand, a requested charge that the plain-_ tiff has the burden of proving the averments of his complaint, or some count thereof, is too exacting in its requirements,*^ and the court is not required to instruct that the burden of proving all the material allegations of the complaint is on the plaintiff, where some of the material allegations are admitted by the answer."* So an instruction requiring a plaintiff, in order to succeed, to prove facts the existence of which is presumed by law from the existence of the facts shown, is erroneous, as imposing a burden beyond that which the law exacts.** Where the case is submitted upon special issues, the court will sufficiently charge upon the burden of proof if it tells the jury to i^eturn an answer with respect to each of such issues in accordance with the preponder- ance of the evidence.** that as to the issue of insanity only that It devolves on the government to the burden was on protestant, its prove "every material fact" necessary failing to charge as to the burden on to constitute the offense, instead of the issue of undue influence was er- "every material ingredient," does not roneous, though proponent's counsel constitute error. Guignard v. United did not request instruction. In re States (C. 0. A. S. C.) 258 F. 607, 170 Hansen's Will, 167 P. 256, 50 Utah, C. G. A. 61. 207. 2 Riddle V. RusseU, 79 N. W. 363, " Gowdey v. Robbins, 3 App. Div. 108 Iowa, 591. 353, 38 N. Y. S. 280. 21 Tutwiler v Bnrns! 4Q Sn 4. New Castle Bridge Co. v. Doty, 613. 76 N. E. 557, 37 Ind. App. 84. INST.TO JtrRIES— 26 § 206 INSTRUCTIONS TO JURIES 402 idea that it is incumbent upon a party at a certain stage of the trial to go forward with the evidence on a given question.*^ When, however, such phrase is used to convey the idea that a named liti- gant must establish a given proposition, it is not accurate to say that the burden of proof shifts at any point in the proceedings.** In criminal cases the burden of proof do£S not shift, but remains upon the people during the whole trial.** It is therefore error for the court to instruct that, when the state has made out a prima facie case, ' it is then incumbent upon the defendant to restore himself to that presumption of innocence to which he was en- titled at the commencement of the trial,** or that when, in the opinion of the jury, the evidence is sufficient to show the guilt of defendant beyond a reasonable doubt, the burden then rests upon him to establish his innocence.*® In some jurisdictions the accused is entitled tosan instruction declaring that the burden of proof never shifts to the defendant.*® In other jurisdictions, if the usual instructions on reasonable doubt and presumption of innocence are given,*' it is not error, unless the peculiar cir- cumstances of the case require it,** to refuse an instruction that the burden never shifts to the defendant. In criminal cases instructions should, in clear and unmistakable language, place the burden of proof upon the state to show every essential element of the offense charged, and an instruction which SI Hansen v. Oregon-Washln^on E. any Issue tendered by the petition & Nav. Co., 188 P. 963, 97 Or. 190. shifted, but merely that the burden of 3 2 Hansen v. Oregon-Washington R. proof rested on defendant to establish & Nav. Co., 188 P. 963, 97 Or. 190; Its affirmative defense. City of Mc- Askay v. Maloney, 179 P. 899, 92 Or. Cook v. McAdams, 106 N. W. 988, 76 566. Neb. 1, reversed 110 N. W. 1005, 76 Instructions not erroneous Neb. 1. witKin rule. In action on accident s a People v. McWhorter, 93 Mich, policy involving Issue of whether in- 641, 53 n ^. 78O sured's death was due to accident or 34 Commonwealth t. Kimball, 24 suicide where evidence thereon was p^^y,^ (Mass.) 366, 3^#Am. Dec. 326; purely circumstantial, mstruction gf^te v. McCluer, 5 Nev. 132; Chap- that presumption was in favor of ac- man V. State, 1 Tex. App. 728! cident was proper, and did not oper- ,, „„„ , „ ..\ „^ , ,„ ate to shift burden of proof ns to ^ l^l^^^cris F ^S4 Ifil P^'r ^a" cause of death from plaintiff to de- ^"q^- ^- ^■\ ^58 ^- 434, 169 C. C. A. fendant. Wilkinson v. Standard Acci- dent Ins. Co. of Detroit, Mich., 180 P. .^Z" People v. Schultz-Knighten, 115 607, 180 Cal. '252. An instruction that J^- ^- 1^0, 277 111. 238. . the burden of proof was on plaintifC '^ Beeson v. State, 130 S. W. 1006, to establish the material allegations 60 Tex. Or. E. 39. of his petition, but that this burden s s Hawkins v. State; 179 S. W. 448, does not remain with the plaintiff on 77 Tex. Cr. R. 520 ; Miller v. State' the question of an affirmative defense, 144 S. W. 239, 65 Tex. Or. E. 302 ;' was not erroneous, as instructing the Phillips v. State, 26 Tex. App. 228 9 Jury that the burden of proof as to S. W. 557, 8 Am. St. Eep. 471. 403 INSTRUCTIONS ON BURDEN OP PROOF §206 is so framed or so ihvolved as to be likely to mislead the jury into thinking that the burden is upon the defendant to prove the absence or nonexistence of any such essential element is cause for reversal.*' An instruction that a doubt to justify acquittal must S9 U. S. (C. C. A. Ky.) German v. United States, 120 F. 666, 57 C. C. A. 128. Fla. Padgett v. State, 24 So. 145, 40 Fia. 451 ; Alvarez v. State, 2T So. 40, 41 Fla. 532. Ga. Nixon v. State, 80 S. E. 513, 14 Ga. App. 261, following McDonald V. State, 77 S. E. 655, 12 Ga, App. 526. Iowa. State v. Brady, 91 N. W. 801. Neb. Chamberlain v. State, 115 N. W. 555, 80 Neb. 812; Snider v. State, 76 N. W. 574, 56 Neb. 309; Burger v. State, 34 Neb. 397, 51 N. W. 1027. N. J. State V. Sandt (Sup.) Ill A. 651. Okl. Adair v. State, 180 P. 253, 15 Okl. Cr. 619 ; Findley v. State, 162 P. 680, 13 Okl. Or. 128; Courtney v. State, 152 P. 1134, 12 Okl. Or. 169; Carter v. State, 152 P. 1132, 12 Okl. Cr. 164; Bauer v. State, 107 P. 625, 3 Okl. Cr. 529 ; Mumbrauer v. State, 106 P. 559, 3 Okl. Cr. 429; Frazler v. ■United States, 103 P. 373, 2 Okl. Cr. 657. Pa. Commonwealth v. Greene, 75 A. 1024, 227 Pa. 86, 136 Am. St. Kep. 867. Tex. Alexander v. State, 204 S. W. 644, 84 Tex. Cr. R. 75; Coy v. State, 171 S. W. 221, 75 Tex. Cr. R. 85; Maloney v. State, 125 S. W. 36, 57 Tex. Cr. R. 435 ; Harris v. State, 117 S. W. 839, 55 Tex. Cr. R. 469; Stew- art V. State, 101 S. W. 800, 51 Tex. Cr. R. 223. Wash. State v. Hatfield, 118 P. 735, 65 Wash. 550, Ann. Cas. 1913B, 895; State v. Pilling, 102 P. 230, 53 Wash. 464, 132 Am. St. Rep. 1080. Wyo. Meldrum v. State, 146 P. 596, ?3 Wyo. 12. lustmotioms improper within rule. Instruction that, if jury found beyond a reasonable doubt that, when defendant killed deceased, the deceas- ed was attempting to assault defend- ant, so as to endanger his life or to do him great bodily harm and if such danger then reasonably appeared to defendant, and he then klUed deceas- ed, it was in self-defense, and defend- ant should be acquitted. Slate v. State, 175 P. 843, 15 Okl. Cr. 201. An instruction, on the trial of a teacher for assaulting a scholar, that the teacher had the right to the ex- ercise of moderate restraint over the scholar, and that if the teacher chas- tised the scholar, and used no more force than was necessary in the exer- cise of such restraint, he would not be guilty. Greer v. State (Tex. Cr. App.) 106 S. W. 359. A charge. In a murder case, that if the jury believe beyond a reasonable doubt that, a short time prior to the alleged killing of decedent by accused, decedent had assaulted accused, and that decedent abandoned the assault as far as he could, and accused then, under the immediate influence of sudden pas- sion, which was produced by the as- sault, killed deceased, and if they find beyond a reasonable doubt that ac- cused was not acting in self-defense, then he would be guilty only of man- slaughter. Huddleston v. State, 112 S. W. 64, 54 Tex. Cr. R. 93, 130 Am. St. Rep. 876. An instruction that if the jury believed defendant was guilty of some grade of offense, but they had a reasonable doubt whether he was guilty of some grade of homi- cide or of an aggravated assault, then they must give defendant the benefit of the doubt and not find him guilty of a higher grade of offense tW^ ag- gravated assault,' if he was'Mound guilty of that, or, If they found from the evidence that defendant was not guilty of any offense, they should re- turn a verdict of not guilty. Grant v. State, 120 S. W. 481, 56 Tex. Cr. R. 411. An instruction, in a case of criminal prosecution for libel, that it was incumbent on defendant to sat- isfy them that the libel was not pub- lished with his knowledge or author- ity, and, unless he had so satisfied them, they should return a verdict of guilty. State v. Grinstead,' 64 P. 49, § 206 INSTRUCTIONS TO JUEIES 404 be reasonable, and unless it would cause a reasonable man to hesitate it is insufficient to warrant a verdict of not guilty, is er- roneous, as intimating that guilt is a natural presumption, and 62 Kan. 593, affirming judgment 61 P. 976, 10 Kan. App. 78. A charge in a criminal case, in which intent was an essential ingredient of the offense, was erroneous, where, after correctly stating that the burden rested upon the government to prove such intent beyond a reasonatile doubt, but that it might be inferred from the acts of the defendant, who was presumed to have intended the natural and proba- ble consequences of his acts, it was further stated that, if the acts prov- en were such as to raise an inference of guilty intent, the burden, was thrown upon defendant to rebut such inference by evidence sufficiently strong to satisfy the jury beyond a reasonable doubt that there was no guilty intent; and the error cannot be held harmless where the general instruction that the burden of proof rested on the government, and contin- ued throughout the case, was quali- fied by the words, "subject to what will be thereafter said upon the ques- tion of proof of intent." McKnight v. United States (0. C. A. Ky.) 115 F. 972, 54 C. O. A. 358. Instructions not improper -nritli- in rule. An instruction that the pre- sumption of innocence remains with accused till by competent evidence the state establishes guilt beyond a rea- sonable doubt. Van Syoc v. State, 96 N. W. 266, 69 Neb. 52Q. An instruc- tion that, if defendant did not as- sault the prosecutrix, or if there was a reawonable doubt as to whether he assaulted her, he must be acquitted. Conger v. State, 140 S. W. 1112, 63 Tex. Cr. K. 312. An instruction that the burden of showing an alibi is on the defendant, but, if the testimony in the whole case raises a reasonable doubt of defendant's presence when the crime was committed, he should be acquitted. Rayburn v. State, 63 S. W. 356, 69 Ark. 177. An instruction on the defense of alibi, that if ac- cused was elsewhere than at the place of the commission of the crime charg- ed he was not guilty, and if on a consideration of the evidence the jury have a reasonable doubt as to wheth- er accused vyas elseyhere than at the place of the commission of the crime at the time of its commission, a ver- dict of not guilty should be rendered. State V. Bateman, 95 S. W. 413, 196 Mo. 35. A charge, in a prosecution for burglary where an accomplice tes- tified against accused, that if the ac- complice broke into the house without the presence of accused and after- wards gave accused some of the prop- erty taken, accused could not be con- victed, even if he knew that the ac- complice had stolen the property, and unless the evidence showed beyond a reasonable doubt that accused did not so obtain the goods, if he had them, and that he was present at the entry into the house and agreed to the act, he must be acquitted, did not place the burden of proof on accused. Oriner v. State, 109 S. W. 128, 53 Tex. Cr. R. 174. An instruction that, if the jury found, beyond a reasonable doubt, that while a congregation was assembled for religious worship ac- cused willfully disturbed the congre- gation by loud talking, etc., he was guilty. Webb v. State, 140 S. W. 95, 63 Tex. Or. R. 207. A charge, in a murder trial, that if accused in sud- den passion, as explained in the charge, and npt in self-defense, arous- ed by adequate cause, unlawfully shot decedent, he should be convicted of manslaughter. Oldham v. State, 142 S. W. 13, 63 Tex. Cr. R. 527. A charge, hi a homicide case, that a per- fect right of self-defense exists only where accused acted from necessity, and w^as not himself in the wrong, and where his conduct was not in- tended or reasonably calculated to produce the necessity which required his action, and that if he was in the wrong, or was violating the law, and because of his own wrong, and with intent to bring on the diffl.culty.. he was thereby placed in a position where it became necessary for him to defend himself from attack, the law 405 INSTRUCTIONS ON BURDEN OF PROOF 206 that they must find a doubt from the evidence in order to justify acquittal.*" In a criminal case jurors are not called upon to pass upon the question of the innocence of the defendant,*^ and instructions which base his right to an acquittal on the belief of the jury in his innocence instead of his guilt are erroneous.** Thus instruc- limits Ms right of self-defense, ac- cording to the degree of his own wrong, and if accused sought deced- ent, armed with a deadly weapon, with intent to kill him or inflict seri- ous bodily harm upon him, and by acts done or words used with Intent to proYoke a difficulty with decedent, and reasonably calculated to provoke decedent to attack him, and decedent did attack him or made a demonstra- tion reasonably Indicating to accused, viewed from his point of view, that he was in danger of death or serious bodily harm, accused could not justi- fy the killing on the ground of self- defense, and, If he killed decedent un- der such circumstances, he would be guilty of first or second degree mur- der, does not cast the burden upon accused of proving that he did not in- tend to provoke the difficulty. Kee- ton V. State, 128 S. W. 404, 59 Tex. Or. E. 316. Where, on a trial for homicide, the court charged that the burden of proof rested on the prose- cution, and if, on the evidence, the jury entertained a reasonable doubt of the guilt of accused, he should be acquitted, and that the burden ot proof remained with the prosecution, the refusal to cliarge that, if accused believed himself to be in danger of bodily harm from, decedent, he was Justified in the killing, etc., was not erroneous, as placing on the accused the burden of convincing the jury that his testimony was true. People V. Mallon, 101 N. Y. S. 814, ll'e App. Div. 425, 19 N. X. Ann. Cas. 325, judgment affirmed 81 N. B. 1171, 189 N, Y. 520. 40 McAllister v. State, 88 N. W. 212, 112 Wis. 496. *i McNair v. State, 14 Tex. App. 78. 42 Moore v. State, 28 Tex. App. 377, 13 S. W. 152; Shamburger v. State, 24 Tex. App. 433, 6 S. W. 540 ; Wag- ner V. State, 17 Tex. App. 554; Brink- oeter v. State, 14 Tex. App. 67. Instructions not improper iritli.- in rule. A charge, in a prosecution for murder, that if the jury believed from the evidence or the want of it that defendant did not place strych- nine in a syringe used by deceased, or that he did it without intent to poison and kill her, or that she did not die by poison, or if the jury had a reasonable doubt of either of these propositions they should acquit the defendant. Rice v. State, 94 S. W. 1024, 49 Tex. Or. K. 569. Ah instruc- tion that, where a homicide is proved beyond a reasonable doubt, the pre- sumption is that it is murder in the stcond degree and if the state would elevate it to murder in the first de- gree it must prove the characteristics of that crime, and if defendant would reduce it to manslaughter the burden is on him, does not place on defendant the burden of proving he is not guilty of murder in the second degree. State V. Melvern, 72 P. 489, 32 Wash. 7. Where, on a trial for murder, the court charged as to what constituted manslaughter, and that to convict de- fendant of that ofCense the jury must find the necessary facts beyond a rea- sonable doubt, the charge was not ob- jectionable as changing the burden of proof, and requlrliig defenda^ to prove manslaughter beyond a rea#>n- able doubt before the jury could ac- quit him of murder, though man- slaughter is a defense to the charge of murder. Spangler v. State, 61 S. W. 314, 42 Tex. Or. E. 233. A chargfe in a prosecution for violation of a lo- cal option law that, if the evidence showed beyond a reasonable doubt that defendant accepted money from the prosecuting witness under an im- plied agreement to furnish him whisky, and, pursuant thereto, placed 206 INSTRUCTIONS TO JURIES 406 tions which, instead of positively affirming the duty of the state to establish the guilt of the defendant, approach the question negatively and inform the jury that if they believe, or are satis- fied, that the accused did not commit the crime charged,*^ or if they are satisfied with the contentions of the accused,** or if they believe from the evidence that certain essential facts Have not been established,*^ they should acquit the defendant, are objection- able, as likely to lead the jury to think that he must prove his innocence. Instructions which require, in order to acquit an accused, that the facts relied upon by him as a defense be shown whisky where he could get it, he was guilty, unless he acted as agent for witness in procuring the whisky, and had no pecuniary interest in the sale, in which case he was not guilty. Grimes v. State, 72 S. W. 589, 44 Tex. Cr. E. 503. An instruction in a trial for theft that if defendant, acting with another, committed the theft, he should be convicted, but, if he had no guilty connection with the taking, he should be acquitted. Alderman v. State (Tex. Cr. App.) 22 S. W. 1096. A charge, in a prosecution of a bailee of a horse for theft thereof, that if the bailor authorized or gave defend- ant his permission or consent to sell or otherwise dispose of the horse, or if the jury had a reasonable doubt thereof, they should acquit defendant. Smith V. State, 76 S. W. 434, 45 Tex. Cr. R. 251. A charge, where defend- ant, on indictment for larceny, seeks to estahlish an alibi, that the burden is on the state to establish beyond a reasonable doubt that the larceny was committed, and, when this is done, defendant ' must establish his alibi by a preponderance of the evi- dence, "and if the entire evidence on th#lWhole case raises a reasonable doubt as to defendant's guilt" he must be acquitted, is not .erroneous, as relieving the state of the burden of proving defendant's guilt beyond a reasonable doubt. State v. Van Win- kle, 80 Iowa, 15, 45 N. W. 388. *3 McNish V. State, 34 So. 219, 45 Fla. S3, 110 Am. St. Rep. 65; Wil- liams V. State, 42 S. B. 745, 116 Ga. 525; Brady v. State, 115 P. 605, 4 Okl. Cr. xiii; Hodge v. State, 115 P, 379, 5 Okl. Cr. 703 ; Johnson v. State, 201 S. W. 177, 83 Tex. Cr. R. 49. " State v. Kirkland, 101 S. E. 560, 178 N. C. 810. *B Ark. Lovejoy v. State, 62 Ark. 478, 36 S. W. 575. Okl. Davis V. State (Cr. App.) 191 P. 1044. Tex. Claunch v. State, 198 S. W. 307, 82 Tex. Cr. R. 114; Green v. State, 98 S. W. 1059, 49 Tex. Cr. R. 645; Cooper v. State, 89 S. W. 816, 48 Tex. Cr. R. 608; Rutherford v. State, 88 S. W. 810, 48 Tex. Cr. R. 431; Stanfield v. State, 62 S. W. 917, 43 Tex. Cr. R. 10; Johnson v. State, 30 Tex. App. 419, 17 S. W. 1070, 28 Am. St. Rep. 930, following 29 Tex. App. 150, 15 S. W. 64'?; Lewis v. State, 29 Tex. App. 105, 14 S. W. 1008. Instructions held erroneous within rule. Where, on a trial for violating the local option law, a wit- ness testified that he went to a cold storage and filled out a blank for whisky; that defendant furnishing the blank stated that the witness could not obtain the whisky until it got there ; that the witness went to a third person in another part of the house, informed him of .his order, and asked if he could not obtain whisky ; that the third person went to defend- ant and told him to let the witness have one of the third person's bottles ; and that defendant handed to witness a bottle of whisky — an instruction that if the witness made an order for whisky through defendant, and bor- rowed whisky from the third person, and defendant took no part in such loan for the purpose of evading the law, defendant should be acquitted, was erroneous, as shifting the burden of proof and requiring defendant tO' prove a negative in order to establish. 407 INSTRUCTIONS ON BURDEN OP PROOF 207 to the satisfaction of the jury,-** or which authorize an acquittal if the jury find the facts relied upon as a defense,*' are erroneous, as shifting the burden of proof to the defendant. On the issue of self-defense in a criminal case, a charge that the jury must find that the defendant was free from fault in bringing on the diffi- culty before he could set up self-defense misplaces the burden of proof on the issue.** § 207. Effect of erroneous instruction An instruction misplacing the burden of proof will be cause for reversal, if the appellate court cannot say that prejudice to the complaining party did not result therefrom ; ** but the rule is otherwise where it appears that no such prejudice has re- sulted.5" his Innocence. Eandell v. State, 90 S. W. 1012, 49 Tex. Cr. R. 261. 48 Trogdon v. State, 133 Ind. 1, 32 N. E. 725; State v. Castle, 46 S. E. 1, 133 N. C. 769; Potts v. Common- v^ealth, 73 S. E. 470, 113 Va. 732. Compare State v. Garland, 90 N. 0. 668. Effect of statute. In a murder case, it was not error to charge a statutoiy provision that, upon trial for murder, the commission of the homicide hy accused being proved, the burden of proving circumstances of mitigation, justification, or excuse de- volves upon him, unless the proof of the prosecution tends to show that the crime committed only amounts to manslaughter, or that accused was justifiable or excusable. Lumpkin v. State, 115 P. 478, 5 Okl. Cr. 488. Pro- visions of a statute declaring that, "when the facts have been proved which constitute the offense, it de- volves upon the accused to establish the facts or circumstances on which he relies to excuse or justify the act," should not be given in charging a jury, except in exceptional cases where the burden of proof rests upon the defendant to establish his defense. Thomas v. State, 14 Tex. App. 200. *7 Stuart V. State, 124 S, W. 656, 57 Tex. Cr. R. 592. InstmctioiiB not improper tirith- ia rule. In a trlstl for assault with inteiit to murder, an instruction that, if from the acts or words of prosecu- tor there was created In the mind of accused a reasonable apprehension that she was in danger of losing her life or of suffering serious bodily harm, she had the right to defend ^herself from such danger Viewed from her standpoint, etc., and that if accused committed the assault as a means of defense, believing that she was in danger of losing her life, etc., she should be acquitted, coupled with a charge that an accused is presumed to be innocent until his guilt is estab- lished beyond a reasonable doubt, was not erroneous, as shifting the burflen of proof and requiring accus- ed to establish affirmatively the facts constituting her defense. Edwards v. State, 125 S. W. 894, 58 Tex. Cr. R. 342. *8 Brown v. State (Ala.) 39 So. 719. * 9 Alabama Fertilizer Co. v. Reyn- olds, 79 Ala. 497; McNutt v. Kauf- man, 26 Ohio St. 127 ; Judge v. Ma- sonic Mut. Ben. Ass'n, 30 Ohio Cir. Ct. R. 133. Ala. Ellis v. Allen, 80 Ala. 515, 2 So. 676. Ga. Moore v. Brewer, 94 Ga. 260, 21 S. E. 460. Mont. Donovan-McCormick Co. v. Sparr, 85 P. 1029, 34 Mont. 237. Neb. Anderson v. Chicago, B. & Q. R. Co., 35 Neb. 95, 52 N. W. 840. Tex. Texas & P. Ry. Co. v. Reed (Civ. App.) 32 S. W. 118; Crutcher v. Schick, 10 Tex. Civ. App. 676, 32 S. W. 75; Marsalis v. Patton, 83 Tex. 521, 18 S. W. 1070. § 208 INSTRUCTIONS TO JURIES 408 CHAPTER XIV INSTRUCTIONS WITH REGARD TO PROBATIVE FORCE OF PARTICU- LAR CLASSES OF EVIDENCE A. Opinion Evidence. § 208. Nonexpert testimony. 209. Expert testimony. 210. Value of opinion evidence as dependent upon truth and materiality of facts on wliich opinion based. B. Positive and Negative Testimony 211. Necessity and propriety of instructions as to relative weight. 212. Sufficiency of instructions. C. Admissions and Confessions 1. Admissions in Civil Cases 213. Fact of admissions. 214. Weight of admissions. V 2. In Criminal Gases 215. Necessity of instructions. 216. Propriety and sufficiency of instructions in general. 217. Instructions on issue of voluntary character of confessions. 218. Instructions on corroboration of confessions. 219. Silence under accusation. 220. Admissions or confessions containing statements favorable, to de- fendant. 221. Necessity or sufficiency of evidence as predicate for instructions. D. Acts and Declarations of Oo-conspieatoes 222. Propriety and sufficiency of instructions. 223. Declarations of alleged co-conspirator who has been acquitted. A. Opinion Evidence Invading province of jury, see ante, §§ 51, 56. § 208. Nonexpert testimony The jury should give weight to the opinion of the nonexpert only as it is based upon the facts detailed by him, and an instruc- tion is erroneous if it authorizes the jury to take into considera- tion the personal knowledge of the witness independent of such facts.i § 209. Expert testimony^ The court should not 'cast discredit upon expert testimony,® and an instruction calculated to give the jury, the impression 1 Vannest v. Murphy, 112 N. W. 236, 135 Iowa, 123 ; In re Jones' Estate, 106 N. W. 610, 130 Iowa, 177. 2 Bradley v. State, 31 Ind. 492. 4.09 EFFECT OP PARTICULAR CLASSES OF EVIDENCE § 209 that they are at liberty to reject, as they see fit, expert testimony ;given in answer to hypothetical questions, is erroneous.* In a criminal case the court cannot charge as a matter of law that opinion evidence must be received with caution, and that where there is an honest difference of opinion among experts the jury ought not to convict.* It is not improper, however, in some ju- risdictions, under* some circumstances, to warn the jury against the value to be given to expert testimony,® and the court may tell the jury to consider such evidence in the light of their com- mon observation and experience,* and that they may disregard it if they deem it to be unreasonable.' In other jurisdictions the giving of instructions cautioning the jury to receive expert evi- dence with caution rests largely in the discretion of the trial ■court.* The jury may be instructed to accept or reject expert testi- mony in the same manner as other testimony,® and the court may and should charge that the jury are to consider such testimony under the same rules of credit and discredit as are applied to other testimony, and that the opinions of experts neither estab- lish nor tend to establish the truth of the facts upon which they are based, but that whether the matters testified to are true or false should be determined by the jury." s City of Rock Island v. MarshaU, lo State v. Crane, 100 S. W. 422, 104 N. E. 1008, 263 111. 133 ; Indian- 202 Mo. 54 ; State v. Wertz, 90 S. W. apolis Traction & Terminal Co. v. 838, 191 Mo. 569. Taylor 103 N. B. 812, 55 Ind. App. Instmetions held proper within 309 ; Cohen v. Kiesenberg (Sup.) 126 rale. Where defendant relied on In- N Y S. 77, 69 Misc. Kep. 599 ; Lubbe sanity, an instruction that the opin- V. HilRert, 120 N. Y. S. 387, 135 App. ion of an expert is subject to the Div 227 same rules and tests as other evi- * Comnionwealth v. Howard, 91 N. dence and if the opinions were utter- ID 397 205 Mass. 128. ly ^* variance with facts established "'■ ' ' ,, '. ,„, 't,-*„ t„^ n^ ^f by unimpeached evidence the opinion »Kemfry y^Mutual Life Ins. Co of ^ ^^ disregarded is not objec- New York (Ma App.) 196 S. W. 775. ti^j^^i,,^^ ^3 practically telling the ju- 8 Hayes v. Wagner, 77 N. B. 211, ^^ believe the experts unless their 220 111. 256, affirming judgment lid testimony was contradicted by unim- 111. App. 299. peachable testimony. State v. Bram- 7 Buckalew v. Quincy, O. & K. O, igtt, 103 S. E. 755, 114 S. C. 389. Ry. Co., 107 Mo. App. 575, 81 S. W. Credibility of witness and op- 1176 ; State v. Darragh, 54 S. W. 226, portunity for hnowing facts. An 152 Mo. 522. ' Instruction that the jury should con- 8 Wood V. Los Angeles Traction Co., sider the skill of the e.xpert, and val- 82 P. 547, 1 Cal. App. 474; People ue his testimony accordingly, is too V. Storke (Cal. Sup.) 60 P. 420, order narrow, in that It gives undue prom- reversed 60 P. 1090, 128 Cal. 486; Inence to the mere skill of the ex- People v. Smith, 106 Cal. 73, 39 P. 40. port, and leaves out of view his cred- 9 State V. Lyons, 37 So. 890, 113 La. ibUity as exhibited by his conduct 959. on the witness stand. Blough v. Par- 209 INSTEDCTIONS TO JURIES 410 In the absence of a request for an instruction on the subject of expert testimony, the failure of the court to give such an in- • struction cannot ordinarily be urged as error. *^ § 210. Value of opinion evidence as dependent upon truth and materiality of facts on which opinion based An instruction is erroneous, which implies that the answers of experts to hypothetical questions may be entitled to some weight, although the statements of fact assumed in such ques- tions are found by the jury to be untrue.^^ It is not only proper to instruct that the opinions of experts expressed in such an- swers will be of little or no weight unless the jury find that the facts assumed in such questions are true,^* but the jury should be instructed that the weight to be ^iven to such answers must in the first place depend upon the truthfulness of the facts as- sumed," and the court should charge that the party calling a wit- ness so testifying must establish the premises included in the hypothetical question by a preponderance of the evidence.^** Such an instruction should not authorize the jury to pass on the ma- teriality of the facts and circumstances admitted in evidence and incorporated in such hypothetical question, as this would be, as ry, 144 Ind. 463, 40 N. E. 70, 43 N. E. 560. There was no error in refusing to charge that the jury were to con- sider evidence of expert witnesses as they did evidence of other witnesses, and could believe it in preference to other evidence, if there was a con- flict ; the request leaving out any con- sideration of the credibility of the witnesses themselves or their oppor- tunity for knowing the facts as to which they testified. Williams v. State. 51 S. E. 822, 123 Ga. 138. 11 Colo. Leitensdorfer v. King, 7 Colo. 436, 4 P. 37. Ga. Godwin v. Atlantic Coast Line E. Co., 48 "S. E. 139, 120 Ga. 747; Bertody v. Ison, 69 Ga. 317; City of Atlanta v. Champe, 66 Ga. 659. lotra. Paton v. Lund, 86 N. W. 206. 114 Iowa, 201 ; Long v. Travel- lers' Ins. Co., 85 N. W. 24, 113 Iowa, 259. / Mo. Weber v. Strobel, 194 S. W. •272. 1 2 West V. Knoppenberger, 26 Ohio Cir. Ct. R. 168. i Basis of opinions of nonexperts. In a proceeding to determine the sanity of M. the instruction that the value of opinions of nonexpert wit- nesses is measured by the facts dis- closed by the testimony on whicli they are based, and, if they do not sustain the opinion, then it is of small weight, but, if they do, it is entitled to proportionately greater weight, was not erroneous as permit- ting consideration of the opinion of a vntness, even though the jury found some of the facts upon which it was based untrue. Conway v. Murphy, 112 N. W. 764, 135 Iowa, 171. IS State V. Saxon, 86 A. 590, 87 Conn. 5; Patterson v. Springfield Traction Co., 163 S. W. 935, 178 Mo. App. 250. In California it has been held that such an instruction may be properly refused as embodying no principle of law. People v. Thompson, 117 P. 1033, 16 Cal. App. 748 ; People v. Klr- by, 114 P. 794, 15 Cal. App. 264. 1* Woods V. Incorporated Town ol Lisbon, 130 N. W. 372, 150 Iowa, 433 ; Spiers v. HJendershott, 120 N. W. 1058, 142 Iowa, 446. i^I-Taas V. Kundtz, 113 N. E. 826, 94 Ohio St. 2.S8. 411 EFFECT OF PARTICULAR CLASSES OF EVIDENCE § 211 has been heretofore shown/^ to permit the jury to determine a question of law, B. Positive and Negative Testimony Power of courts to instruct jury as to comparative values of positive and negative testimony, see ante, § 57. § 211. Necessity ,and propriety of instructions as to relative weight There is a seeming conflict of authority as to whether a party may be entitled under proper circumstances to an instruction that positive testimony should be accorded more weight than negative. As we have seen in a preceding chapter, such an in- struction is regarded in many jurisdictions as an invasion of the province of the jury; but in jurisdictions where the court is al- lowed to comment on the evidence, it is not improper to so in- struct, the matter resting largely in the discretion of the trial court." In some other jurisdictions such an instruction may be war- ranted, or a party may have a right to it, where the evidence on one side is purely negative, arid not merely negative in form.^* 16 Burk V. Reese, 121 N. W. 1016, and it is not error to decline to give 143 Iowa, 496 ; Vannest v. Murphy, such an instructipn in a case in which 112 N. W. 236, 135 Iowa, 123; Ball witnesses have testified as positively v. Skinner, 111 N. W. 1022, 134 Iowa, on the one side that a thing did not 298. occur as on the other side that It did. 17 Chicago Great Western Ry. Co. Denver & R. G. R. Co. v. Lorentzen v. McDonough (C. C. A. Iowa) 161 (C. C. A. Colo.) 79 F. 291, 24 C. O. A. P. 657, 88 C. C. A. 517; Cable v. 592. Paine (C. C. Iowa) 8 Fed. 788, 3 Mc- is Ga. Williams v. State, 99 S. E. Crary, 169; Rhodes v. United States 43, 23 Ga. App. 542; Chewnlng v. (C. C. A. Mo.) 79 P. 740, 25 C. C. A. State, 88 S. E. 904, 18 Ga. App. 11 ; 186. Heywood v. State, 77 S. B. 1130, 12 WTiere there is positive evi- Ga. App. 643 ; Selman v. Malcom, 59 deuce by those in charge of a S. E. 85, 2 Ga. App. 770 ; Wood v. train that the whistle was sounded State, 58 S. B. 271, 1 Ga. App. 684; at a crossing, and negative evidence Moon v. State, 68 Ga. 687. of those within hearing that they Kan. St. Louis & S. F. R. Co. v. did not hear it, the court should, on Brock, 77 P. 86, 69 Kan. 448. request, call the attention of the jury Wis. Canning v. Chicago & M. to the fact that the law gives a pref- Electric Ry. Co., 157 N. W. 532, 163 erence to positive over negative testi- • Wis. 448. mony. Pyne v. Delaware, L. & W. B. Testimony as to whether de- Co., 61 A. 817, 212 Pa. 143. fendant fired a gun. Where, on Testimony that a thing occur- indictment for murder, it was materi- red against testimony that it did al for the state to show that the not occur. Instructing that posi- prisoner fired the fatal shot, and tive evidence is entitled to more several witnesses testified that when weight than negative always rests the fourth shot was fired the weapon largely in the discretion of the court, was in the hands of the prisoner. § 211 INSTRUCTIONS TO JURIES 412 Thus the Wisconsin courts, defining negative testimony as the evidence of a witness, who had 'opportunity to see, hear, or know of an alleged occurrence, testified to have happened by some other witness, that he did not see, hear, or recollect it/" hold that in a proper case it will be error to refuse an instruction that positive testimony is to be preferred to negative."* In this and other ju- risdictions it is held that evidence merely negative in form, by which is meant evidence which takes the form of recollection and positive denial based thereon, is aflirmative in effect, and conse- quently does not fall within the above rule,^i and that it is er- ror in such case to instruct on the value of negative testimony as compared with positive.*^ while he Introduced a number of wit- nesses who were present, but testi- fied that they did "not see the pistol and did not know In whose hands it was," an instruction defining positive and negative evidence, and charging that positive evidence was entitled to greater weight than negative testimo- ny, was not error; the court having also charged that the jury were the sole judges of the faith and credit to be given to the testimony of each of the witnesses. State v. Murray, 51 S. E. 775, 139 N. 0. 540. Witnesses giving negative tes- timony not shown to have equal opportunity for knowledge. Giv- ing an instruction that, other things being equal, affirmative testimony is entitled to more weight than nega- tive testimony, and that, if a witness testifies he did see certain things, and another of equal credibility testifies he did not see such things, then, if everything else Is equal, the witness testifying negatively is entitled to less credit than the one testifying af- firmatively, is not error, where the witnesses giving the negative testi- mony are not shown to have been in as good position as the others to see. In re Wharton's Will, 109 N. W. 492, 1.32 Iowa, 714. 19 Anderson v. Horlick's Malted Milk Co., 119 N. W. 342, 137 Wis. 569. 20 Hildman v. City of Phillips, 82 N. W. 566, 106 Wis. 611. Negative testimony as to collat- eral circumstances. Where the evidence as to whether a tannery was a nuisance covered several years, and the witnesses did not have equal knowledge as to its character, the ju- ry should have been instructed that the "positive testimony" of one crea-^ Ible witness was "entitled to more- weight than the testimony of several witnesses who testify negatively as- to collateral circumstances, merely negative in their character, from which a negative may be Inferred." Pennoyer v. Allen, 5e Wis. 502, 14 N. W. 609, 43 Am. Rep. 728. 21 Ga. Nelms v. State, 51 S. E.. 688, 123 Ga. 575. lU. West Chicago St. K. Co. v. Mueller, 46 N. E. 373, 163 111. 499, 56- Am. St. Rep. 263, affirming judgment 64 111. App. 601; Great Western R. Co. V. Hanks, 25 111. 241. N. Y. Cridler v. Colegrove, 5 N. Y. St. Rep. 232. Wis. Anderson v. Horlick's Malt- ed Milk Co., 119 N. W. 342, 137 Wis. 569; Kelley v. Schupp, 60 Wis. 76, 18 N. W. 725. Testimony as to whether one was of temperate habits. There being no substantial contradictory statement as to the matter of drink- ing by Insured prior to his application for insurance, but the real question being whether, conceding this, he was then intemperate, the testimony of witness, based on knowledge and ob- servation as to whether he was tem- perate, does not call for an instruc- tion on the weight to be given posi- tive and negative testimony. Taylor V. Security Life & Annuity Co., 59 S. E. 139, 145 N. C. 383, 15 L. R. A. (N. S.) 583, 13 Ann. Cas. 248. 22 Harper v. State, 81 S. E. 817, 14 Ga. App. 603 ; Peak v. State, 62 S. E. 413 EFFECT OF PARTICULAR CLASSES OF EVIDENCE §211 A failure to charge on the relative values pf positive and nega- tive testimony will not be error, in the absence of a request for such an instruction,** and if there is no negative testimony in the case, such an instruction would be misleading, and therefore should not be given.** § 212. Sufficiency of instructions In jurisdictions where the court is permitted to give instruc- tions to the effect that positive is to be preferred to negative tes- timony, they should be based upon the hypothesis that the wit- nesses were equal in credibility and opportunity for knowledge.** The jury should also be told what constitutes negative testi- 665, 5 Ga. App. 56 ; Skinner v. State, 32 S. E. 844, 108 Ga. 747. Positive testimony that crime xras committed opposed by testi- mony supporting alibi. Where the evidence In behalf of the state in a criminal case consisted of the testi- mony of a witness or witnesses, who swore positively to the commission of the crime, aiid the evidence in behalf of the accused consisted of testimo- ny tending to show an alibi, and to impeach the state's witness or wit- nesses, a charge on the law as to the relative value of positive and nega- tive evidence was not applicable. At- kinson V. State, 37 S. E. 747, 112 Ga. 411. 2 3 (yPry V. State, 83 «. B. 228, 142 Ga. 600; Patterson v. State, 67 S. E. 816, 134 Ga. 264. 24 Humphries v. State, 28 S. E. 25, 100 Ga. 260. See State v. Henson, 185 P. 1059, 105 Kan. 581; FuUerton Lumber Co. v. Hosford, 176 N. W. 1017, 42 S. D. 642. 2BTJ. S. '(C. O. A. N. T.) Dela- ware, L. & W. E. Co. v. Devore, 114 F. 155, 52 C. C. A. 77. Ariz. P,abb V. State, 163 P. 259, 18 Ariz. 505, Ann. Oas. 1918B, 925. Ga. McDuffle V. State, 101 S. to. 812, 24 Ga. App. 653 ; Estill v. Estill, 100 S. E. 365, 149 Ga. 384 ; Chamblee V. Farmers' & Merchants' Bank, 93 S. E. 239, 20 Ga. App. 527; Helms v. State, 72 S. E. 246, 136 Ga. 799 ; Sel- man v. Malcom, 59 S. E. 85, 2 Ga. App. 770; Wood v. S.tate, 58 S. E. 271, 1 Ga. App. 684; Warrick v. State, 53 S. E. 1027, 125 Ga. 133 ; Mi- nor V. State, 48 S. E. 198, 120 Ga. 490; Southern Ry. Co. v. O'Bryan, 42 S. E. 42, 115 Ga. 659. m. Indiana, I. & I. R. Co. v. Ots- tot, 72 N. E. 387, 212 111. 429, affirm- ing judgment 113 111. App. 37 ; Rock- wood v. Poundstone, 38 111. 199. Ind. Ohio & M. Ry. Co. v. Buck, 130 Ind. 300, 30 N. E. 19. Kan. Smith v. Bush, 169 P. 217, 102 Kan. 150. Wis. Suick V. Krom, 177 N. W. 20, 171 Wis. 254. See Hess v. Williamsport & N. B. R. Co., 37 A. 568, 181 Pa. 492. Instructions held sufficient within rule. An instruction that the existence of a fact testified to by one positive witness was rather to be believed than that it did not exist because many witnesses who had the same opportunity of observa- tion swore that they did not see or know of its having transpired but that this did not al>ply ,when two persons had equal facilities for seeing or hearing a thing, and one swore that it occurred and the other that it did not, and that in passing on the ques- tion the jury should consider and pass on the credibility of the witnesses. Green v. State (Ga. App.) 105 S. E. 634. A charge that direct and posi- tive evidence is rather to be believed than negative evidence, where ttte witnesses are of eqnial credibility, and that a witness who testifies positively to the occurrence of a fact is rather to be believed than many witnesses who testify that they did not see the occurrence, providing they are of equal credibility, and all have equal opportunity for knowing the facts § 213 INSTRUCTIONS TO JURIES 414 mony,*® what character of testimony is to be weighed under the rule, and what attendant facts and circumstances should be con- sidered,^'' and in one jurisdiction the jury should be informed in such connection of the distinction above pointed out between tes- timony essentially negative and testimony that a thing did not occur, as opposed to testimony that it did occur, and told that in the latter case the rule as to , the preference of positive over negative testimony does not apply,** and it is proper to refuse to charge that mere negative evidence will not warrant the jury in disregarding the positive testimony of a single witness.''® C. Admissions and Confessions 1. Admissions in Civil Cases § 213. Fact of admissions Testimony in a civil action as to the extrajudicial admissions of a party adverse to his claim presents two phases for the con- sideration of the jury — one, whether they were made; and the other, as to their effect.^" With respect to such testimony the trial court may, and should, as the evidence renders useful and proper, instruct the jury concerning the degree of scrutiny and caution to be used in determining whether or not the alleged ad- missions were in truth made,*^ if care is taken by the court not about which they testify, is not sub- 2 s Benton v. State, 60 S. E. 116, 3 ject to the objection that the jury Ga. App. 433; Selman v. Maloom, 59 might understand therefrom that the S. E. 85, 2 Ga. App. 770 ; Whitfield witness swearing positively was not v. State, 58 S. E. 385, 2 Ga. App. 124 ; rather to be believed than the witness- "Wood v. State, 58 S. B. 271, 1 Ga. es swearing negatively, if the former App. 684. had better opportunity than the lat- ^^ Campbell' v. New England Mut. ter for knowing the facts. Lyens v. Life Ins. Co., 98 Mass. 381 ;, Dyer v. State, 66 S. E. 792, 133 Ga. 587. An Dalor (Vt.) 109 A. 30. Instruction that positive testimony so Gangi v. Fradus, 227 N. Y. 452, outweighs negative testimony, the 125 N. E. 677. witnesses being equally credible, suf- 81 TJ. S. (C. C. A. Wash.) Frank- flciently qualifies a charge on the sub- fort Marine, Accident & Plate Glass ject of positive and negative testimo- Ins. Co. v. John B. Stevens Co., 220 ny, in which the jury are told that F. 77, 135 O. 0. A. 645. the existence of a fact testified to by Ga. Pitts v. Rape (App.) 104 S. E. one positive witness is rather to be be- 643 ; Mims v. Brook & Co., 59 S. E. lieved than that such fact did not ex- 711, 3 Ga. App. 247 ; Stewart v. De ist, because many witnesses swore Loach, 86 Ga. 729, 12 S. E. 1067. they did not see or know of it hav- Iowa. Allen v. Kirk, 81 Iowa, "658, ing transpired. Wood v. State, 71 47 N. W. 906. S. E. 500, 9 Ga. App. 865. Minn. Blume v. Chicago, M & 2 6 Suick V. Krom, 177 N. W. 20, 171 St. P. Ey. Co.; 158 N. W. 418, 133 Wis. 254. Minn. 348, Ann. Cas. 1918D, 297. 2T State V. McLeod, 89 P. 831, 35 Mont. McCrimmon v. Murray, Mont. 372. 117 P. 73, 43 Mont. 457. 415 EFFECT OF PAUTICDLAE CLASSES OF EVIDENCE 214 to reflect any opinion or to lead the jur^ to deny to the testimony its proper weigh t,»« and the jury are told that it is for them to determine the weight of such evidence according to the way it affects their own minds,** and it has been held that, where alleged verbal admissions were made in casual conversations with dis- interested persons, it is error to refuse an instruction that testi- mony as "to such admissions is of the weakest kind.** § 214. Weight of admissions As is indicated in the foregoing statement of the rule as- to the caution to be observed in determining whether an alleged admission was in fact inade, the court should not unduly minimize the effect of testimony respecting admissions,*^ or deny to such evidence its natural and reasonable effect.** An instruc- tion that all verbal admissions should be received with caution should be accompanied by the qualification that, when an admis-^ sion is deliberately made and precisely identified, the evidence it affords is often of the most satisfactory nature,*'" and it is error for the court to instruct as a rule of law that admissions of a party to a civil action are probatively weak evidence or have not W. Y. Gangi v. Ftadus, 227 N. Y. 452, 125 N. E. 452. Or, Gleason v. Denson, 132 P. 530, 65 Or. 199; State v. Hanna, 57 P. 629, 35 Or. 195. See MerrUl v. Hole,; 85 Iowa, 66, 52 N. W. 4. Great caution. Wbere. in an ac- tion seeking to charge defendant as a partner upon an admission made by him tinder circumstances calling for an explicit admission or denial, his counsel requested an instruction to the jury that "admissions are the lowest class of proof, and should be received and considered by the jury with great caution," the action of the court In refusing to give such instruc- tion, but substituting a charge that, "with respect to verbal admissions, they ought to be received with great caution" was held proper. Tozer v. Hershey, 15 Minn. 257 (Gil. 197). 82 Hart V. Village of New Haven, 89 N. W. 677, 130 Mich. 181. 38 Moore v. Dickinson, 39 S. O. 441, 17 S. B. 998. 3* Grotjan v. Rice, 102 N. W. 5t)i, 124 Wis. 253. Contra — Gianinl v. Cerini, 171 P. 1007, 100 Wash. 687. 3 5 Scurlock V. City of Boone, 120 N. W. 313, 142 Iowa, 580. Instructing as to dangerous character of evidence. Where a defense that there is nothing due on the note in suit Is based on testimony of alleged admissions of plaintiff, and the jury are instructed that such tes- timony should be received with great caution, a request, for an Instruction that such evidence is the most dan- gerous that can be admitted in a court of justice, and the most liable to abuse, is properly refused. Mc- Carty v. Scanlon, 41 A. 345, 187 Pa. 495, 43 Wkly. Notes Cas. 111. 3 6 Brown v. Atlantic Coast Line R. Co., 64 S. E. 1012, 83 S. 0. 53. Instructions held proper. There was no error In charging that it was the duty of the jury to scan admis- sions, if proved, with care, but that, so scanning them, the jury should give them such weight as they thought such admissions entitled to. McBride v. Georgia Ry. & Electric Co., 54 S. E. 674, 125 Ga. 515. 87 Hill V. Newman, 47 Ind. 187. § 215 INSTRUCTIONS TO JURIES 416 a high degree of quality m proof,'^ and where the evidence fairly shows verbal admissions by a party, and there is no claim that the witnesses testifying to them misunderstood them, it will be error to charge that such evidence is to be received with caution.'® An instruction in a negligence case, covering not only statements of a party admissible as casual admissions, but also statements admissible as a part of the res gestae, should be so frariied as to point out the substantial difference between the two classes of , statements, and so as to avoid misleading the jury into thinking that the res gestae statements are to be viewed with caution.** A party is entitled to an instruction that admissions made by him are not conclusive against him,*^ although in the absence of a spe- cial request the judge is not bound to instruct as to the effect of an admission by either party.** 2. In Criminal Cases Instructions on this head as invading province of jury, see ante, §§ 46-49. § 215. Necessity of instructions There is no absolute inflexible rule which entitles the defendant in a criminal case to an instruction that evidence of admissions *' S8 Gangi V. Fradns, 227 N. T. 452, satisfactory, and the jury should be 125 N. E. 677. cautious before they give credence to an Chrestenson v. Harms, 161 N. W. such testimony," since such instnic- 343, 88 S. D. 360. " tion does not fully state the law, and *o John V. Pierce, 178 N. W. 297, is misleading. Snodgrass v. Common- 172 Wis. 44. wealth, 89 Va. 679, 17 S. B. 238. *i Boswell V. Thompson, 49 So. 73, Instructions held properly re- 160 Ala. 306. fused in view of other instruc- ts Wrightsville & T. R. Co. v. Lat- tions given. Where, on a prosecu- timore, 45 S. B. 453, 118 Ga. 581. tion for murder, the state proved con- 43 Cal. People v. Maljan, 167 P. tradictory statements made by de- 547, 34 Oal. App. 384 ; People v. Wag- fendant as to the manner and cause ner, 155 P. 649, 29 Cal. App. 363 ; Peo- of decedent's death, and the court told pie V. Eaber, 143 P. 317, 168 Cal. 316. the jury they were the sole judges Mass. Commonwealth v. How- of the facts and the weight to be giv- ard, 91 N. E. 397, 205 Mass. 128; en the testimony, it had amply pro- Commonwealth v. Galligan, 113 Mass. tected defendant, and a further in- 202. struction cautioning them as to the Mo. State V. Bobbst, 190 S. W. weight to be given the testimony as 257, 269 Mo. 214. to such statements was properly re- Instructions characterizing evi- fused. State v. Coleman, 98 N. W. dence as unreliable and unsatis- 175, 17 S. D. 594. There being in- factory. The court properly refused dutiable evidence of the corpus de- to instruct the jury that "testimony licti, and also evidence corroborative concerning oral declarations of a par- of the inculpatory admissions of de- ty, whether they be threats or admis- fendant, it is not error to refuse to sions or other declarations, is regard- Instruct that the , admissions should ed by the law as unreliable and un- be received with great caution, and 417 EFFECT OF, PARTICULAR CLASSES OF EVIDENCE §215 or confessions alleged to have been made by him, whether oral or otherwise, should be viewed with caution.** It is proper to give such an instruction,*^ but whether it shall be given rests largely in the discretion of the court, to be guided by the cir- cumstances of each particular case.*^ Where admissions of a defendant were clear, distinct, and unequivocal, and it is not claimed that he did not make them in the manner and form tes- tified to, or that they were of doubtful meaning, or were misunder- stood, an instruction that such admissions should be received with caution is properly refused.*'' A statute making it the duty of the court on all proper occasions to instruct that evidence of the oral admissions of a party shall be viewed with caution does not require such an instruction where insanity is the defense,** and it has been held that a refusal to instruct in conformity with such a statute is not a ground for reversal, since it states a mere common-place within the general knowledge of jurors.*® The circumstances may be such, however, as to make it error for the court to fail or to refuse to caution the jury with respect are not, unless corroborated, suffi- cient to warrant -a conviction ; the ju- ry having been charged to weigh such admissions with caution, considering the liability of the witness to mis- understand defendant's language. State V. Walker, 98 Mo. 95, 9 S. W. 646. 44 Burns v. State, 49 Ala. 370; Bo- bo V. State (Miss.) 16 So. 755 ; State V. Clump, 16 Mo. 385; Hardesty v. State, 146 N. W. 1007, 95 Neb. 839; State v. Patrick, 48 N. C. 443. ' W^aming against convicting on simple confession. The refusal of a judge, on a trial for murder, to instruct the jury that they ought not to convict on a simple confession for the reason that, if they believe the confession to be true, it was their du- ty to convict, is not error. State v. Graham, 68 N.. C. 247. 4 5 People V. Tibbs, 76 P. 904, 143 Cal. 100; State v. Chappell, 78 S. W. 585, 179 Mo. 324. 46 State V. Hardee, 83 N. 0. 619. Right to instruction ivhere de- fendant contends that confession •was mere idle talk. Where, in a prosecution for homicide, defendant admitted that he had made certain statements introduced in evidence as INST.TO JUEIHS— 27 a confession, when he was not under arrest, and had not been accused of the crime, that he intended the per- son to whom the confession was made to understand that he was acknowl- edging his commission of the crime, his only contention being that he was intoxicated, and on that account was indulging in boastful talk, and that the statements made were mere idle vaporings, or part of a contest in tell- ing yams, it was not error for the court to refuse to charge that the confession of the prisoner out of court was a doubtful species of evidence, and should be acted upon by the jury with great caution. Horn v. State, 73 P. 705, 12 Wyo. 80. 47 State V. Jackson, 73 N. W. 467, 103 Iowa, 702 ; Bode v. State, 113 N. W. 906, 80 Neb. 74. 4 8 State v. Peister, 50 P. 561, 32 Or. 254. Instruction to view ivith dis- trust. Under a statute declaring that evidence of the oral admissions of a party i."? to be viewed with "cau- tion," it is not error to refuse an in- struction that it be viewed with "dis- trust." People V. Sternberg, 111 Cal. 11, 43 P. 201. 49 People V. Wardrip, 74 P. 744, 141 Cal. 229. § 215 INSTRUCTIONS TO JTJKIES 418 to evidence of alleged verbal statements or admissions by the. defendant.®* A cautionary instruction will usually be necessary, where the claimed admissions were made casually, in ordinary con-^- versation, at a remote period of time,"^ or wh^re statements made by'^the defendant at the time of being arrested are sought to be used against him as admissions.®* Where the evidence in a case outside of an alleged confession by the defendant is circumstantial, and hardly sufficient to au- thorize a conviction, it will constitute reversible error to refuse to charge that 'confessions must be voluntary, and made without hope of benefit or fear of injury, in order to support a convic- tion.®* Where there is evidence tending to show that confessions of the defendant admitted in evidence were not voluntarily made, the failure or refusal of the court to instruct the jury to disregard such confessions, if they believe from all the evidence that they were not voluntary and were not true, will constitute error.®* It is ordinarily not error to refuse to instruct that evidence of admissions or confessions is of the weakest kind,®® even where the evidence relates to admissions made in casual conversation with disinterested persons,®® and in some jurisdictions it is proper to refuse an instruction that verbal admissions should be re- ceived with great caution, if not accompanied by the statement that, if such admissions are deliberately made and fully proven, they furnish evidence of a most satisfactory character.®' As a general rule, in the absence of a request for a special in- struction the court need not expressly charge the jury to determine whether a confession has been made,®^ nor give instructions with' respect to the effect of evidence of the confessions of a defend- so Marzen v. People, 50 N. E. 249, Rule 1111461 statute. A requested 17.3 111. 43; Haynes v. State (Miss.) Instruction that verbal admissions 27 So. 601 ; State v. Hendricks, 73 ought to be received witb great cau- S. W. 194, 172 Mo. 654. tion, that such evidence is subject 51 State V. Smith, 157 S. W. 819, to much imperfection, the party him- 250 Mo. 330 ; State v. Moxley, 102 Mo. self not having clearly expressed his 374, 14 S. W. 969. own meaning or the witness having 02 People V. McArron, 79 N. W. misunderstood him, is not justified by 944, 121 Mich. 1. a statute providing that the jury is B3 Earp V. State, 55 Ga. 136. to be instructed that evidence of oral B4 Ellis V. State, 65 Miss. 44, 3 So. admissions of a party ought to be 188, 7 Am. St. Eep. 634 ; Bozeman v. received with caution. People v. State, 215 S. W. 319, 85 Tex. Or. R. Buckley, 77 P. 169, 143 Cal. 875. IfL W%k^'^'^' ^^ '''^' ^"' ^- ^^' '" State y. Glahn, 97 Mo. 679, 11 S. 55 Grlner v. State, 49 S, E. 700, 121 ^^ ^^'^■ Ga. 614; People v. Sweeney, 106 N. " Lipsey v. People, 81 N. E. 348, E. 913. 2i;j N. y. 37, aflirming judg- 227 111. 364. ment 14G N. Y. S. 637, 161 App. Dlv. es Cooper v. State, 77 S. E 878 12 221. Ga. App. 561. 419 EFFECT OP PARTICULAR CLASSES OP EVIDENCE §216 ant; 59 but where the case of the state is entirely or chiefly de- pendent upon a confession, the court should of its own motion give appropriate instructions, and inform the jury that such con- fession must be corroborated in order to justify a conviction.®" So, where it is doubtful whether any crime has been committed, the court should instruct that a confession of a defendant, made while in fear of mob violence, will not warrant a conviction, un- less accompanied by other proof of the commission of the crime charged.*^ § 216. Propriety and sufficiency of instructions in general It is proper to instruct the jury in effect to consider the circum- stances under which a confession was made, and, if they find it to be voluntary, to give it such weight as they think it is fa-irly entitled to.** In some jurisdictions it is not error to charge that any statements by the defendant unfavorable to himself are pre- sumed to be true.*' In some jurisdictions it is not improper for the court, after calling the attention of the jury to the circum- stances which may lessen the value of a confession as evidence, to charge, in substance, that confessions, when freely and volun- tarily made, are a high order of evidence,^ and in some jurisdic- 59 Cal. People v. Fowler, 174 P. 892, 178 Cal. 657. Ga. Jones v. State, 104 S. E. 425, 150 Ga. 628; Washington v. State, 100 S. B. 31, 24 Ga. App. 65 ; Mitchell V. State, 99 S. B. 889, 24 Ga. App. 135; Scarboro v. State, 99 S. K 637, 24 Ga. App. 27; McDuflae v. State, 86 S. E. 821, 17 Ga. App. 342 ; Smith V. State, 76 S. B. 1016, 139 Ga. 230 ; Lindsay v. State, 76 S. E. 369, 138 Ga. 818 ; Rucker v. State, 58 S. B. 295, 2 Ga. App. 140. Mo. State v. Brooks, 92 Mo. 542, 5 S. W. 257, 330. ■Wis. Bernhardt v. State, 82 Wis. 23, 51 N. W. 1009. 61 Eucker v. State, 58 S. B. 295, 2 Ga. App. 140 ; Dunlap v. State, 98 S. W. 845, 50 Tex. Or. R. t(04. 61 Poison V. Commonwealth (Ky.) 108 S. W. 844, 32 Ky. Law Rep. 1398. 62 State V. Jordan, 87 Iowa, 86, 54 N. W. 63 ; Commonwealth v. Brown, 149 Mass. 35, 20 N. E. 458. 63 State V. Hammontree (Mo. Sup.) 177 S. W. 367; State y. Cox, 173 S. W. 50, 264 Mo. 408; State v. Clow, 110 S. W. 632, 131 Mo. App. 548. 6 4 People V. Borgetto, 99 Mich. 336, 58 N. W. 328. Instructions proper 'within rule. A charge that, "if the confessions were freely and voluntarily given, they were the highest kind of evi- dence," at the same time telling the jury that "they should be weighed by them as any other testimony." Mer- cer V. State, 17 Ga. 146. An instruc- tion that evidence of a confession should be examined by the jury witn care, that the confession, if volun- tarily made, uninfluenced by any threat or promise, is of great weight, but should not be considered unless freely made without undue influence either by the promise of advantage or threat of harm, was as favorable to defendant as the law warranted. State V. Bennett, 121 N. W. 1021, 143 Iowa, 214. Confession proven by one -wit- ness only. On trial for murder, where the state relies in' part on a confession which is proven by one witness only, an instruction that "when a confession is made, and stat- ed to the jury by a credible witness, § 216 INSTRUCTIONS TO JUEIES 420 tions it is not reversible error to charge that confessions of guilt, when deliberately made and precisely identified, are among the most satisfactory proofs obtainable,*^ or evidence of the highest character against the defendant, the jury being also told that they are to determine what weight should be given to the evidence.** In other jurisdictions, as has been shown in a preceding chapter,*' such instructions are erroneous, as on the weight of the evi- dence.** An instruction that admissions may be important and weighty evidence should tell the jury that they must be clearly proven and shown to have been made with some degree of deliberation,®* and an instruction that, if the jury believe any statements by the . defendant have been pi^oven by the state and not denied by him, they are to be taken as true, is erroneous, as in violation of the presumption of innocence and in derogation of the statute* permitting the defendant to refrain from testifying with- out raising a presumption of guilt.''* It is not necessary that a cautionary instruction with respect to admissions or confessions should be accompanied by an admonition that it is for the jury to say whether or not any admission or confession of guilt has .been made.'^ An instruction that the jury should exercise a rea- sonable caution with respect to alleged admissions of the defend- ant, and take into consideration the fact that sometimes state- ments, or conversations are not correctly reported, or may be mis- apprehended, or that the circumstances and conditions surrounding a person at the time he makes a statement may be such as to weaken the effect that ought to be given to it, is sufficient con- cerning admissions, in absence of a request for fuller instructions.'* it is the highest order of testimony; es Thompson v. State, 73 Miss. 584, there can be but few higher sources 19 So. 204; Harris v. State, 1 Tex. of evidence than a confession volun- App. 74. tarlly and freely made" — is errone- «» Colbert v. State, 104 N. W. 61, ous. Calvin v. State, 44 S. E. 848, 118 125 Wig. 423. Ga. 73. '"> State v. Hudspeth, 51 S. W. 483, 8 5 Welsh V. State, 96 Ala. 92, 11 So. 150 Mo. 12. 450. " Coney v. State, 90 Ga. 140, 15 Instruction not in compliance S. B. 746. with rule. An instruction that ''" People v. Holden, 109 P. 495, 13 "when confessions are deliberately Oal. App. 354 ; People v. Jackzo, 172 and precisely identified they are N. W. 557, 206 Mich. 183. among the most satisfactory and ef- Instructions objectionable iiirith- fectual proofs of guilt," was errone- in rule. A charge that the law is ous. Shelfon v. State, 42 So. 30, 144 as much vindicated by the acquittal Ala. 106. of an Innocent person as by the con- so State v. Wortman, 98 P. 217, 78 viction of a guilty one; that the ju- Kan. 847. ry must receive defendant's alleged 67 Ante, § 48. confession with great caution; that 421 EFFECT OF PARTICULAR CLASSES OF EVIDENCE §217 The circumstances of the case may be such as to authorize or require the court to distinguish between admissions and confes- sions,''* the former relating to the acknowledgment of facts and the latter to the acknowledgment of guilt,'* and an instruction is erroneous which characterizes mere inculpatory admissions as confessions,'^ but a statement freely and voluntarily made by the defendant, by which he acknowledges participation in the main facts essential to constitute the crime charged against him, may properly be referred to as a confession.'® § 217. Instructions on issue of voluntary character of confes- sions In the great majority of jurisdictions as shown in a preceding chapter," it is proper for the court to instruct the jury to disre- gard a confession admitted in evidence, if they find that it was not voluntarily made, or was the result of intimidation, duress, or other improper inducement,'* and the general rule is that the court should so instruct, either on its own motion'^ or on re- all confessions were prima facie in- voluntary, and must be cautiously re- ceived and considered ; and that the jury should consider with great care the testimony of a witness who is in- terested, or who may be swearing to shield himself from prosecution. Strickland v. State, 44 So. 90, 151 Ala. 31. 73 Brown v. State, 32 Miss. 433 ; State V. Caseday, 115 P. 287, 58 Or. 429. Ti State V. Heidenreich, 29 Or. 381, 45 P. 755. 7 5 Fletcher v. State, 90 Ga. 468, 17 S. E. 100; Covington v. State, 79 Ga. 687, 7 S. E. 153 ; Ledbetter v. State. 61 Miss. 22 ; Hogan v. State, 46 Miss. 274; Hiogsett V. State, 40 Miss. 522. Matters amouuting merely to admissions. On trial for larceny of cattle, where there was evidence that defendant had told to others the cir- cumstances connected with his pos- session of the animals, and testified in his own behalf that he bought the property from one who represented that he was the owner thereof, and showed in detail the manner in which possession was obtained, an instruc- tion assuming that such declarations and such testimony amounted to a confession was erroneous. State v. Heidenreich, 29 Or. 381, 45 P. 755. Where accused after his arrest was questioned in the presence of the sher- iff and constable and others, and ad- mitted his implication in an afCray in which he shot and wounded com- plainant, but claimed that he acted only in self-defense and used his re- volver as a club only, the discharge being accidental, and that after com- plainant had knocked him off a chair into a bedroom complainant's wife joined in the assault, it was error for the court to refer to such admissions as a "confession" of guilt. People v. Cismadija, 132 N. W. 489, 167 Mich. 210. 78Fouse V. State, 119 N. W. 478, 83 Neb. 258. T! Ante, § 101. 78 Shaw V. United States (C. O. A, Ky.) 180 F. 348, 103 0. C. A. 494; Shufllin V. State, 184 S. W. 454, 122 Ark. 606 ; State v. Priest, 103 A. 359, 117 Me. 223 ; Anderson v. State, 220 S. W. 775, 87 Tex. Or. R. 230. 7 8 Ark. Williams v. State, 39 S. W. 709, 63 Ark. 527. Mass. Commonwealth v. Hudson, 70 N. E. 436, 185 Mass. 402. Mich. People V. Maxfield, 108 N. 217 INSTRUCTIONS TO JURIES 422 quest,*" where there is some evidence that a confession intro- W. 1087, 146 Mich. 103 : People, v. Clarke, 105 Mich. 169, 62 N. W. HIT. Mo. State V. Webb, 115 S. W. 998, 216 Mo. 378, 20 L. R. A. (N. S.) 1142, 129 Am. St. Rep. 518, 16 Ann. Cas. 518 ; State v. Brennan, 65 S. W. 325, 164 Mo. 487. Neb. Heddendorf v. State, 124 N. W. 150, 85 Neb. 747. Tex. FoUis v. State, 101 S. W. 242, 51 Tex. Or. R. 186 ; Johnson v. State, 88 S. W. 223, 48 Tex. Cr. R. 423. Instructions su£Sciently comply- ing with rnle. A charge, on a prose- cution for robbery, in which a written confession of defendant was introduc- ed in evidence, that a confession, when voluntarily made, is evidence against accused, because common experience proves that a man will not confess facts to his disadvantage unless they are true; that such confessions should be strengthened by facts cor- roborative of their truth; and that if the jury believed that defendant made such confession to the officers having him in custody, freely and voluntarily, they should consider it, but that if defendant did not have sufficient mind or memory to know what he was saying, whether it was the result of intoxication or weakness of mind, or both, or if the same was made by inducements holding out es- cape or an inducement amounting to a threat, fear or promise, and that from such inducements the confession was made, the .lury should disregard it. State v.- Stibbens, 87 S. W. 460 188 Mo. 387. An instruction that a confession must be freely made with- out being induced by fear of injury or hope of benefit, and must be scan- ned with great caution and must be corroborated. Davis v. State, 67 S. B. 839, 7 Ga. App. 680. Defendant has the full benefit of his claim that his confession was not voluntary, where the court instructs that the confession must be disregarded if it was obtained while he was in custody by threats or promises, or while he wslS intoxicated. State v. Brooks, 119 S. W. 353, 220 Mo. 74. Where, on a trial for homicide, the confession of accused was admitted in evidence, and the sheriff, to whom the confession was made, testified that he warned accused before he confessed, and ac- cused stated that he did not hear the warning, an instruction that the evi- dence must show that the warning was given, and that, if the evidence failed to show that the warning was given and that accused heard it, the confession could not be considered, sufficiently charged under what cir- cumstances the confession might be considered. Green v. State, 98 S. W. 1059, 49 Tex. Cr. R. 645. Where there i was evidence that confessions of de- fendant to the officers were induced • by threats or promises of assistance, an instruction that, unless the state- ments were made voluntarily, and not Induced by threats or promises, the jury could not consider them in the case, was sufficient, under a statute requiring that the confessions be made freely sfud without compulsion in or- der to be admissible -as evidence. Cross V. State (Tex. Cr. App.) 101 S. W. 213. An Instruction that, in or- der to consider certain admissions of defendant which were in evidence, the jury must find, beyond a reason- able doubt, that the statement was purely voluntary, and "made freely, of the respondent's free will, without any hope of favor or fear of the con- sequences," and that the burden was on the people to show that the state- ments were voluntary, was as favor- able to defendant as the law permits. People V. Swetland, 77 Mich. 53, 43 N. W. 779. In a prosecution for arson, in which a confession of de- fendant was admitted, failure to charge as to the specific facts set out in the defendant's statement as to the reason for the fear causing him to make the confession was not error, where the court instructed that the jury must not consider any confes- sion, unless they were satisfied that it had been made freely and volun- 80 Bates v. State, 84 So. 373, 78 Fla. 672; Griner v. State, 49 S. B. 700, 121 Ga. 614; Johnson v. State, 42 So. 606, 89 Miss. 773; State v. Thomas, 157 S. W. 330, 250 Mo. 189 ; State V. Moore, 61 S. W. 19[>, 160 Mo. 443. 423 EFFECT OF PARTICULAR CLASSES OF EVIDENCE §217 duced in evidence was obtained by fmproper means, or the evi- dence is conflicting upon the question of its voluntary character. In some jurisdictions, however, it is held that, since the court de- termines the admissibility of confessions, it may properly decline to instruct that the jury may disregard confessions submitted to them, if they believe from all the evidence that they were not freely and voluntarily made.*^ Where it appears, after confes- sions have been submitted to the jury, that they were not volun- tarily made, the court should withdraw such evidence from the jury and instruct them to wholly disregard it.** Where the court has instructed generally as to reasonable doubt, it is not necessary to instruct that the jury must be satisfied be- yond a reasonable doubt that the defendant made a confession in evidence voluntarily.** Where the trial judge attempts to -define what a voluntary confession is, he should explain that a hope of benefit, as well as the fear of injury, will render a confession in- duced by it involuntary.** It is proper to refuse instructions with respect to the voluntary tarily, and that they were not conclud- ed by the fact that evidence of confes- sions had been admitted, but that, if, they found from the evidence that the confession had not been freely and voluntarily made, they should disre- gard it. Morgan v. State, 48 S. E. 238, 120 Ga. 499. Where it appeared that defendant, who bore an assumed name when arrested, confessed when the sheriff confronted him with his true name, and afterwards told the , sherifE that he should plead guilty, and that the sheriff replied that in that case he would speak to the judge and get defendant off as easy as pos- sible, it was held that a charge that confessions must be made voluntarily, and that if defendant made them un- der undue influence they could not be considered, was sufficiently favorable to defendant. People v. Warner, 104 Mich. 337, 62 N. W. 405. Where the state proved that accused had made a confession, an instruction, requiring the jury to find, before they could con- sider any statement made by accused as evidence against him, that he was warned, and that the statement made was voluntary, properly called the jury's attention to the confession, and left the consideration thereof with the jury as they should find the facts. Thomas v. State, 95 S. W. 1069, 49 Tex. Cr. R. 633. Failure to include -words "or other improper iufluences."- That the court, in instructing the jury not to consider defendant's confession if they believed- it was induced by du- ress, threats, or coercion, failed to add "or other improper influence," is not error, where the jury had pre- viously been instructed not to consider the confession unless they believed that it was freely and voluntarily made. Anderson v. State (Tex. Cr. App.) 54 S. W. 581. 81 Stone V. State, 105 Ala. 60, 17 So. 114 ; Holland v. State, 22 So. 298, 39 Fla. 178. 82 Bonner v. State, 55 Ala. 242; Cain V. State, 18 Tex. 387. Confession submitted -nritliout objection. Although a confession goes to the jury without objection, and no motion is made to rule it out, the counsel may still request the court, in writing, to charge that, un- less voluntarily made, the confession cannot warrant a conviction. Earp v. State, 55 6a. 136. 83 Nix V. State, 97 Ga. 211, 22 S. B. 975. 84 Parker v. State, 34 Ga. 262. § 218 INSTRUCTIONS TO JURIES 424 character of a confession by the defendant, where there is no evi- dence that it was involuntary.*'' § 218. Instructioms on corroboration of confessions The general rule is that, when an extrajudicial confession has been admitted in evidence and there is some doubt whether a crime has been committed, the jury should be told that a confes- sion, uncorroborated by some other evidence tending to show the commission of a crime, will not wan-ant a conviction,** there being statutes in some jurisdictions prohibiting convictions on extra- judicial confessions alone;*' but, where the corpus delicti is abun- dantly established by evidence independent of such a confession, it is not error for the court to refuse such a charge,** and it is not 85 Wilganowski v. State, 180 S. W. 692, 78 Tex. Cr. R. 328; Ex parte Martinez, 145 S. W. 959, 66 Tex. Cr. R. 1; Pinckard v. State, 138 S. W. 601, 62 Tex. Cr. R. 602; Bailey v. State, 59 S. W. 90O, 42 Tex. Cr. R. 289. 88 People V. Frey, 131 P. 127, 165 Cal. 140 ; Lucas v. State, 36 S. E. 87, 110 Ga. 756 ; Clary v. Commonwealth, 173 S. W. 171, 163 Ky. 48; Collins v. Commonwealth (Ky.) 25 S. W. 743. ' Instructions sufficient to satisfy rule. A charge that confessions of guilt should be receired with great caution, that a confession alone, un- corroborated by other evidence, will not justify a conviction, and that con- fessions must be corroborated by some fact or circumstance shown in the case that tend to connect defendant with the offense charged. Walker v. State (Ga. App.) 105 S. B. 717. Where the judge instructs that a conviction cannot be had on a confession only, but that it must be corroborated, and that proof of the corpus delicti is a sufficient corroboration, the instruc- tion is sufficient where it is added that if it is shown that the crime was committed the jury could consider the confession. Owen v. State, 46 S. E. 433, 119 Ga. 304. In a prosecution for arson, in which evidence of a con- fession of defendant had been admit- ted, a charge that if the evidence be clear and decisive, satisfying the minds of the jury beyond a reasonable doubt that the building was malicious- ly and willfully burned, and, if the jury believed that the defendant free- ly and voluntarily confessed that he did it, then such a confession, thus corroborated, might serve as sutiicient corroboration to authorize the con- viction, was not error. Morgan v. State, 48 S. E. 238, 120 Ga. 499. In the absence of requested special in- structions on the law of corroborative proof, the instruction, "No person can be convicted upon his own confession unless it is corroborated by other evi- dence, and whether there is such evi- dence is for the jury," Is sufficient. Attaway v. State, 35 Tex. Cr. R. 403, 34 S. W. 112, 8 7 Davis v. State, 173 S. W. 829, 115 Ark. 566. Evidence connecting defendant with offense entirely circumstan- tial aside from confession. Where the commonwealth showed beyond doubt that deceased came to his death from a blow on the head which frac- tured his skull, but the evidence to connect the prisoner with the ofCense was wholly circumstantial, aside from certain alleged exti-ajudicial confessions, and the theory of the de- fense was that deceased was struck by a passing railroad train, the court should have charged the language of the statute, that a confession of ac- cused, unless made in open court, will not warrant a conviction unless ac- companied with other proof that the OfCense has been committed. Higgins v. Commonwealth, 134 S. W. 1135, 142 Ky. 647. 88 Cal. People V. Wagner, 155 P. 649, 29 Cal. App. 363. Ky. Dunbar v. Commonwealth, 232 425 EFFECT OF PARTICULAR CLASSES OF EVIDENCE § 219 necessary to the application of this rule that the corroborative evi- dence should tend to connect the accused with the crime charged.** However, in an instruction that a conviction may be had upon a voluntary confession corroborated only by proof of the corpus delicti, the court should not use language from which the jury may infer that such a confession, thus corroborated, will require a con- viction, but should leave them free to pass upon the question whether or not the corroborative evidence, together with that re- lating to the confession, is sufiScient to satisfy them beyond a rea- sonable doubt of the guilt of the accused."" An instruction with respect to the corroboration of confessions is not objectionable^ because it does not state the degree of proof hecessary to supple- ment them.'i § 219. Silence iinder accusation In some jurisdictions, where there is evidence tending to show that statements were made in the presence of the defendant, ex- pressly or impliedly accusing him of the crime for which he is being prosecuted to which he made no reply, it is proper to in- struct that, if defendant heard the statements, the jury may con- sider whether he was bound to answer, and how far any inference is to be drawn against him because of his silence.®^ In other juris- S. W. 655 ; Lee v. Commonwealth, 159 Proof of corpus delicti beyond S. W. 648, 155 Ky. 62 ; Green v. Com- reasonable doubt not required. It monwealth, 83 S. W. 638, 26 Ky. Law Is not error to refuse to instruct the Rep. 1221 ; Gilbert v. Commonwealth, jury that, before they can consider 111 Ky. 793, 64 S. W. 846, 23 Ky. Law any alleged confessions of defendant, Rep. 1004 ; Dugan v. Commonwealth, they must be satisfied beyond a reason- 43 S. W. 418, 102 Ky. 241, 19 Ky. Law able doubt, from other evidence in the Rep. 1273; Bush v. Commonwealth, ease, of the existence of the corpus 17 S. W. 330, 13 Ky. Law Rep. 425 ; delicti. The confessions of a defend- Ruberts v. Commonwealth, 7 S. W. ant, when admitted, are to be weighed 401 ; Patterson v. Commonwealth, 86 and considered by the jury with all Ky. 313, 5 S. W. 387 ; Id., 5 S. W. 765, the other evidence. Holland v. State, 99 Ky. 610. 22 So. 298, 39 Fla. 178. Mass. Commonwealth v. McCann, as Sandefur v. Commonwealth, 137 97 Mass. 580; Commonwealth v. Tarr, ri. W. 504, 143 Ky. 655 ; Frazier v. 4 Allen, 315. Commonwealth (Ky.) 124 S. W. 797; Tex. Gallegos v. State, 90 S. W. Chapman v. Commonwealth (Ky.) 112 492, 49 Tex. Cr. R. 115; Ellington S. W. 567, 33 Ky. Law Rep. 965; V State, 87 S. W. 153, 48 Tex. Cr. R. Patterson v. Commonwealth, 86 Ky. 160 ; Murphy v. State, 67 S. W. 108, 313, 5 S. W. 387 ; Id., 5 S. W. 765, 99 43 Tex. Cr. R. 515; Nelson v. State Ky. 610. (Cr. App.) 65 S. W. 95 ; Bailey v. »o Wimberly v. State, 31 S. B. 162, State, 59 S. W. 900, 42 Tex. Cr. R. 105 Ga. 188. 289; Tidwell v. State, 47 S. W. 466, si State v. Caseday, 115 P. 287, 58 40 Tex. Cr. R. 38, rehearing denied Or. 429. 48 S. W. 184, 40 Tex. Cr. R. 38 ; »2 Commonwealth v. Bralley, 134 Pranks v. State (Or, App.) 45 S. W. Mass. 527. ]^0]^3, Charge that silence "tanta- See State v. Turner, 19 Iowa, 144. mount" to an admission. Where, 220 INSTRUCTJONS TO JURIES 426 dictions such an instruction is improper."^ Where the state seeks to draw inferences against the defendant because of his silence, when accusing statements are made in his presence, the court may** and should instruct that, unless the jury believe that the defendant heard such statements, they must disregard them.*® § 220. Admissions or confessions containing statements favor- able to defendant Where the state puts in evidence a confession of the defendant containing divergent statements, instructions should not be so framed as to permit the jury to infer that they are not to take into consideration the statements most favorable to the accused.*® In some jurisdictions, where the state relies for conviction upon a confession of the defendant, which contains exculpatory state- ments which disprove the state's case, the court should charge that the state is bound by such statements unless they are shown by the evidence to be untrue;*'" the rule being otherwise where at the trial of a criminal case, the judge instructed the jury that, if a statement was made in the hearing and presence of a person whi^h affect- ed his rights or was crimiA.ting to him and he remained silent, such silence was tantamount to an admis- sion of the truth of the facts stated, provided the statement was heard and understood by him and he was not in custody or under restraint, but was at liberty to reply or explain, and provided the statement was of such a nature and made under such cir- cumstances, and by such persons, as naturally to call for a reply, it was held that if, instead of saying that silence was "tantamount" to an ad- mission, the judge had said that it was in the nature of an admission, the instructions would have been strictly accurate, but that the inac- curacy, if any, was eliminated by the jury being told that, if they found the ifacts as contended by the government, "they would give to the circumstance such weight and significance as they thought it entitled to." Commoi> wealth V. McOabe, 163 Mass. 98, 39 N. B. 777. oaphelan v. State, 88 S. W. 1040, 114 Tenn. 483. »4 State v. Guffey, 163 N. W. 679, 39 S. D. 84. OB Rhea V. State, 148 S. W. 578, 67 Tex. Or. R. 197. 96 State V. Laliyer, 4 Minn. 368 (Gil. 277). 7 Tex. MuUins v. State (Cr. App.) 225 S. W. 164 ; Coleman v. State, 199 S. W. 473, 82 Tex. Cr. R. 332; Mcln- ish v. State, 198 S. W. 780, 82 Tex. Cr. R. 141 ; Cline v. State, 178 S. W. 520, 77 Tex. Cr. R. 281; Gibson v. State, 110 S. W. 41, 53 Tex. Cr. R. 349 ; Jones v. State, 29 Tex. App. 20, 13 S. W. 990, 25 Am. St. Rep. 715. Instruction rendered unnecessa- ry 'by other instructions. Where the state introduced a confession or admission of defendant, containing his statement that deceased had his gun up and cocked, it was not neces- sary to charge that the state was bound by the statement, unless shown to be false ; it being necessary, under the charge as to self-defense, to find deceased did not so have his gun, be- fore there could be a conviction. Davis V. State, 163 S. W. 442, 73 Tex. Cr. R. 49. Rule -nrhere confession contains no exculpatory' statements. Where a written confession, which was in- troduced in evidence, contained no ex- culpatory statements, it was not nec- essary to charge the jury that the confession must be taken as a whole and that the state must disprove the exculpatory matters. Anderson v. State, 159 S. W. 847, 71 Tex. Cr. R. 27. 427 EFFECT OF PARTICULAR CLASSES OF EVIDENCE § 221 the state does not rely solely upon such confession,*^ or where there are facts other than the confession tending strongly to con- nect the defendant with the crime of which he is accusd,** or where the state does not rely upon the confession as an entirety and the exculpatory statements are proven by the defendant.^ In another jurisdiction, where the state relies mainly for conviction upon a verbal confession of the defendant containing statements favorable to him, the court should instruct on request that the confession must be taken together, and if the part favorable to the defendant is not disproved, and is not improbable when con- sidered with the other evidence, then that part is entitled to as much consideration as parts of the confession unfavorable to him.* In one jurisdiction, where the state puts in evidence confessions or admissions- of the defendant containing statements favorable to him, it is proper for the court to instruct that any statements made by the defendant against himself the law presumes to be true, but that what he says in his own favor the jury may believe or not, according as they find the fact to be, after considering ' such statements in connection with all the other evidence.* § 221. Necessity or sufficiency of evidence as predicate for in- instructions To justify or require an instruction on the subject of- confes- sions, the effect to be given to them, or the necessity of their cor- roboration, there must be some evidence that the defendant has made a confession.* Proof of an inculpatory admission will not 88 Cook V. State, 160 S. W. 465, 71 ^ Mo. State v. Chick, 221 S. "W. Tex. Cr. R. 532 ; McKinney v. State, 10, 282 Mo. 51 ; State v. Wansong, 88 S. W. 1012, 48 Tex. Cr. R. 402. 195 S. W. 999, 271 Mo. 50 ; State v. Confession of principal as basis Davis, 126 S. W. 470, 226 Mo. 493; of instrnction in prosecntion of State V. Wilson, 122 S. W. 671, 223 accomplice. In the prosecution of Mo. 173; State v. Merkel, 87 S. W. accused as an accomplice to a homi- 1186, 189 Mo. 315 ; State v. Darragh, cide, confession of the ptincipal hay- 54 S. W. 226, 152 Mo. 522; State v. ing been admitted solely to show that McKenzie, 45 S. W. 1117, 144 Mo. 40 ; lie, killed deceased, such confession State v. Young, 119 Mo. 495, 24 S. W. could not be made the basis of a 1038; State v. Richardson, 117 Mo. charge that the state was bound by 586, 23 S. W. 769; State v. Brown, . it in other matters, unless the falsity 104 Mo. 365, 16 S. W. 406 ; State v. thereof was proven. Millner v. State, Brooks, 99 Mo. 137, 12 S. W. 633. 162 S. W. 348, 72 Tex. Cr. R. 45. * Ala. McCormick v. State, 37 So. SB Gibson v. State, 110 S. W. 41, 377, 141 Ala. 75; Burns v. State, 49 53 Tex. Cr. R. 349. Ala. 370. 1 Belcher v. State, 161 S. W. 459, 71 Ga. Chislon v. State, 91 S. E. 893 Tex. Cr. R. 646. 19 Ga. App. 607; Thomas v. State, 84 2 Burnett v. People, 68 N. K 505, S. E. 587, 143 Ga. 268 ; Cox v. State 204 111. 208, 66 L. R. A. 304, 98 Am. 79 S. B. 909, 13 Ga. App. 687; Owens .St. Rep. 206. v. State, 48 S. E. 21, 120 Ga. 296- §221 INSTRUCTIONS TO JURIES 428 authorize or require such an instruction,® and the nearer an ad- mission approaches the completeness of a full confession of guilt without attaining thereto the more likely is any reference in the instructions to the subject of confessions to confusfe the jury and Knight V. State, 39 S. E. 928, 114 Ga. 48, 88 Am. St. Rep. 17 ; Jones v. State, 65 Ga. 147. Ky. Spicer v. Commonwealtli, 51 S. W. 802, 21 Ky. Law Rep. 528 ; Car- giU V. Commonwealth, 93 Ky. 578, 20 S. W. 782. Neb. Marion v. State, 16 Neb. 349, 20 N. W. 289. Tex. Johnson v. State, 124 S. W. 664, 57 Tex. Or. R. 608; Trevenlo v. State, 87 S. W. 1162, 48 Tex. Or. R. 207; Fox v. State (Or. App.) 87 S. W. 157. Instruction that confessions and admissions of accused should be received ivith great caution. Where a defendant charged with se- duction before an examining magis- trate pleaded guilty to the charge, and acknowledged his guilt to the father of the prosecutrix and another, all of which confessions were volun- tarily made, without qualification, but, on testifying as a witness in his own behalf, stated that he only meant that he was guilty of the act of in- tercourse, and not of the seduction, an instruction that the confessions and admissions of accused should be received with great caution, and, if the jury helieved from the evidence that accused meant that he was guilty of the intercourse merely, then such admissions could only be considered as corroborating evidence of the in- tercourse alone, and not to corrobo- rate the alleged seduction, was prop- erly refused, where the court charged that admissions and confessions of ac- cused were admitted with caution, and that it was the province of the jury to consider all the circumstances under which the admissions were made, and determine their exact na- ture. Import, and meaning. Flick v. Commonwealth, 34 S. E. 39, 97 Va. 766. Instruction that a free and vol- untary confession is the highest order of evidence. Where, on a prosecution for assault with intent to commit rape, there was evidence that defendant had offered one witness a bribe to testify that he had overheard a conversation between defendant and prosecutrix nearly contemporane- ous with the alleged assault; anoth- er, that he had told defendant he heard defendant "had a little fight with the girl," and defendant answer- ed, "Yes ; she kicked and fought like a wild cat," — and that defendant had offered a third witness money to testi- fy that he had had sexual intercourse with prosecutrix, and had told a fourth that he intended to swear that he had intercourse with prosecutrix twice on the occasion of the alleged . assault, it was held that an instruc- tion that a free and voluntary con- fession of guilt is the highest order of evidence had no foundation in this testimony. Johnson v. People, 64 N. E. 286, 197 111. 48. Evidence sufScient to authorize charge. Evidence that a person un- der arrest expressed a desire out of court to plead gi;ilty, in order to be- gin to serve his sentence. Abrams v. State, 48 S. E. 965, 121 Ga. 170. Where there was testimony that de- fendants, accused of obstructing a rail- road track, had admitted they saw the cross-tie on the track, shortly be- fore it was struck by the train, and that one of them, when asked why he (Jid not remove it, said, "It was near train time, and didn't have time," a charge as to the law relating to con- fessions and admissions, unattended by any intimation of the judge that defendants had made any confession or admission of guilt, was not error. State V. Taylor, 32 S. E. 149, 54 S. C, 174. 6 Ga. Phillips v. State (App.) 107 S. E. 343; Easterling v. State, 100 S. E. 727, 24 Ga. App. 424; Reed v. State, 83 S. E. 674, 15 Ga. App. 435; Porter v. State, 74 S. E. 1099, 11 Ga. 429 EFFECT OF PARTICULAE CLASSES OF ETIDHNCB 222 be of harm to the defendant.^ So, in order to entitle a defendant to an instruction that a confession cannot be considered, if it was not voluntary and was obtained through coercion or persuasion, there must be evidence on which to base such instruction.' D. Acts and Declarations of Co-conspirators § 222. Propriety and sufficiency of instructions In a criminal case the court is not authorized to ciiarge on the acts and declarations of co-conspirators in the absence of the de- App. 246; Bridges v. State, 70 S. H. 968, 9 Ga. App. 235; Hutchinson v. State, 63 S. E. 597, 5 Ga. App. 598; Riley v. State, 57 S. E. 1031, 1 Ga. App. 651 ; Davis v. State, 39 S. E. 906, 114 Ga. 104 ; Suddeth v. State, 37 S. E. 747, 112 Ga. 407; Lee v. State, 29 S. E. 264, 102* Ga. 221. Ky. Bates v. Commonwealth, 174 S. W. 765, 164 Ky. 1 ; Black v. Com- monwealth, 156 S. W. 1043, 154 Ky. 144 ; Tipton v. Commonwealth, 78 S. W. 174, 25 Ky. Law Rep. 1547. Matters not authorizing a charge on the subject of confes- sions. On a trial for larceny of a jug of whisky, evidence that a wit- ness saw accused soon after he was arrested, and that he told him he had not ordered any whisky, and that no one had promised to send him any, and stated a negro told him there was a jug of whisky for him at the ex- press office, and he went and called for it, and got it. Cleveland v. State, 39 S. E. 941, 114 Ga. 110. In a prose- cution for larceny, evidence of a statement by accused that he got a part of the stolen property from an- other man, and could account for his possession. State v. Smith, 106 N. W. 187, 129 Iowa, 709, 42 L. R. A. (N. S.) 539, 6 Ann. Oas. 10?3. Matters amounting merely to an inculpatory statement. Where, on a prosecution for murder, there was evidence that defendant, when informed that he would be arrested for the crime, stated that if deceased had treated his informant as he had treated defendant, informant would have wanted to kill him, it was preju- dicial error to instruct that confes- sions are satisfactory and efEectual proofs of guilt, as the evidence did not show a confession, but merely an inculpatory statement. Shelton v. State, 42 So. 30, 144 Ala. 106. Ransom v. State, 59 S. E. 101, 2 Ga. App. 826. 7 Irby V. State, 95 Ga. 467, 20 S. E. 218; People v. Rogers, 85 N. E. 135, 192 N. Y. 331, 15 Ann. Cas. 177; Hern- don V. State, 99 S. W. 558, 50 Tex. Cr. R, 552. Evidence insufficient to justify submission of issue. The fact that an officer, who was present at the time and place (fixed by another offi- cer in his testimony) that defendant made a confession, after being warn- ed, did not hear the warning or con- fession, does not justify a submissiop to the jur.y of an issue as to whether the confession was made freely and voluntarily. Sullivan v. State, 51 S. W. 375, 40 Tex. Cr. R. 633. Evidence sufficient to require charge. Where defendant testified in his own behalf that a warning was not given and hope of reward offered when his written confession was made, he was entitled to a charge that the confession could not be con- sidered if any inducement was held out or hope of reward offered. Knight V. State, 116 S. W. 56, 55 Tex. Cr. R. 243. An assurance by the ar- resting officer to a girl 14 years old, that she shall not be hurt, holds out to her a hope of benefit to induce her confession, and is sufficient evidence on which to predicate a charge that confessions must be voluntary, and made without hope of benefit or fear of injury, in order to ground a convic- .tion for crime thereon. Earp v. State, 55 Ga. 136. 222 INSTRUCTIONS TO JURIES 430 fendant, unless there is evidence of a conspiracy,* and where it is alleged that a crime for which one is being prosecuted was com- mitted as the result of a conspiracy between the defendant and third persons, the court should not only impress upon the jury that, before they can consider evidence of the statements and acts of such third persons in the absence of the defendant, they must find the existence of such conspiracy,* but that they must believe beyond a reasonable 'doubt that such conspiracy existed," and 8 Delaney v. State, 90 S. W. 642, 48 Tex. Cr. R. 594. 9 Ky. Stacey v. Commonwealth, 225 S. W. 37, 189 Ky. 402. Mo. State T. Kennedy, 177 Mo. 98, 75 S. W. 979. Or. State V. Moore, 48 P. 468, 32 Or. 65. Tex. Wilson v. State, 155 S. W. 242, 70 Tex. Cr. R. 3; Nelson v. State, 87 S. W. 143, 48 Tex. Cr. R. 274 ; Chapman v. State, 76 S. W. 477, 45 Tex. Cr. R. 479; Segrest v. State (Cr. App.) 57 S. W. 845; Casner v. State, 57 S. W. 821, 42 Tex. Cr. E. 118. Instructions held proper ivithin rule. An instruction that, where two or more persons are associated together for purpose of doing an un- lawful act, the act or declaration of one while engaged in or pursuant to the common object or design is the act or declaration of all, for which all are liable, does not permit jury to use acts and declarations of one against all defendants rggardlfess of proof of conspiracy or whether proof of con- spiracy existed at the time of the act or declaration and does not permit proof of conspiracy as to all by evi- dence of acts and declarations of one. State v. Chong Ben, 173 P. 1173, 89 Or. 313, denying rehearing 173 P. 258, 89 Or. 313. In a prosecution for murder, where there is evidence of a consffiracy between defendant and others to commit the homicide, and of acts and declarations of an alleged co- conspirator, instructions that, where a conspiracy is entered into lietween two or more, the acts and declarations of each in regard to the common pur- pose are the acts and declarations of all; and, when one enters into a con- spiracy already formed, every act done by the others, before his entry or afterwards, in pursuance of the common design, is the act of the one so entering; and that if H. (a co- defendant) and others formed a com- mon purpose to kill deceased, and de- fendant entered into a conspiracy at any time before the killing, the acts and declarations of tl^p co-conspira- tors made and done in pursuance of the common design after said agree- ment was made by H., and others, and before the killing, are admissible against defendant, but if defendant did not enter into such conspiracy the testimony should be disregarded in passing on his guilt— are not objec^ tionable. Harris v. State, 31 Tex. Or. R. 411, 20 6. \/. 916. On a murder trial, where a conspiracy to kill de- ceased was sought to be shown, it was proper to charge that, if the jury be- lieved that defendant had entered in- to a conspiracy to kill the deceased, they could consider as evidence against defendant any acts or decla- rations of his co-conspirators, or ei- ther of them, done or made to carry out their com m on purpose during the pendency of such conspiracy, but should disregard such acts and decla- rations if there was no conspiracy, or if they were not done or made during the pendency thereof to carry out the design. Luttrell v. State, 31 Tex. Cr. R. 493, 21 S. W. 248. i» Ky. Day v. Commonwealth, 191 S. W. 105, 173 Ky. 269 ; Hall v. Com- monwealth, 93 S. W. 904, 29 Ky. Law Rep. 485. Tex. Steele v. State, 223 S. W. 473, 87 Tex. Cr. R. 588; Wallace v. State, 81 S. W. 966, 46 Tex. Or. R. 341; Chapman v. State, 76 S. W. 477, 45 Tex. Cr. R. 479; Graham v. State (Or. App.) 61 S. W. 714. 431 EFFECT OF PARTICULAR CLASSES OF EVIDENCE! § 223 that such acts or words of the alleged co-conspirators must have been done or uttered in furtherance of the object of the conspir- acy." The court should also further instruct that the acts and declarations of an alleged co-conspirator in the absence of the de- fendant are inadmissible to establish a conspiracy.^* Where the admissibility of the declarations of a third person depends on whether they were spoken by a co-conspirator, and there is evi- dence that there was a conspiracy between the speaker and the defendant, the jury should be instructed to find whether there was a ■ conspiracy, and to consider or disregard the declarations accord- ingly.*^* § 223. Declarations of alleged co-conspirator who has been ac- quitted On the trial of one of two persons jointly indicted for a crime, it is proper to instruct that the declarations of the other before the crime are to be considered if the alleged conspiracy is proven, although the other has been acqditted." 11 State V. Moeller, 126 N. W. 568, is state v. Kennedy, 75 S. "W. 979, 20 N. D. 114; Dobbs v. State, 100 S. 177 Mo. 98; Parr v. State, 38 S. W. W. 946, 51 Tex. Cr. R. 113. 180, 36 Tex. Cr. K. 493. 12 Holland v. State, 206 S. W. 88, " Musser v. State, 61 N. E. 1, 157 84 Tex. Cr. R. 144; Cooper v. State, Ind. 423. 89 S. W. 816, 48 Tex. Cr. R. 608. § 224 INSTETJCTIONS TO JURIES 432 CHAPTER XV INSTRUCTIONS ON OIEGUMSTANTIAL iJVIDENCH A. In Civil Cases § 224. Right of party to instructions. 225. Propriety and sufficiency. B. In Cbiminai, Cases 1. Duty and Right of Court to Instruct on Circumstantial Evidence 226. General rule. 227. Rule where evidence is not entirely circumstantial. 228. Rule where a confession or admission of defendant is introduced In evidence against him. 229. Harmless error in refusing instruction. i!dO. Necessity of request for instructions. 2. Sufflciency of Instructions and Propriety of Particular Instructions 231. General principles. 232. Contrasting direct and circumstantial evidence. 233. Degree of certainty required. 234. Requirement that circumstances he consistent with hypothesis of guilt and inconsistent with that of innocence. 235. Proof of each circumstance or each' essential fact, A. In Civil, Cases § 224. Right of party to instructions In a civil action one relying upon circumstantial evidence is entitled to a charge that it may be considered by the jury,^ and as to its force and effect,* and this may be so, although there is some direct evidence in the case,* and it may be necessary for the court to instruct that the jury may deduce certain facts from the facts and circumstances proved;* but if, in a case where there is both circumstantial and direct evidence, the case of the party request- ing such an instruction rests upon the direct evidence rather than upon the circumstantial, the court may properly refuse such re- quest.^ In an action to recover for death by wrongful act, in which the evidence is purely circumstantial, and in which the jury can de- 1 State V. Hammond's Ex'rs, 6 Gill 3 Kice v. Detroit Fire & Marine Ins. & J. (Md.) 157; Rounds v. Coleman Co. of Detroit, Mich. (Mo. App.) 176 (Tex. Civ. App.) 214 S. W. 496 ; Jones S. W. 1113. V. Hess (Tex. Civ. App.) 48 S. W. 46. " Bi;own v. Rice's Adm'r, 76 Va. 2Culbertson v. Hill, 87 Mo. 553; 629. United States Exp. Co. v. Jenkins, 64 o Roberts v. Port Blakely Mill Co., Wis. 542, 25 N. W. 549. 70 P. Ill, 30 Wash. 25. 433 INSTRUCTIONS ON CIRCUMSTANTIAL EVIDENCE § 226 duce therefrom, with equal reason, the conckisions contended for by either party, the defendant is entitled to an instruction that, unless the jury find that the circumstances relied upon by the plaintiff as sustaining his theory are wholly inconsistent with any other reasonable hypothesis as to the manner of the death of the plaintiff's decedent, he has not met the burden of proof.® As a general rule in the absence of a request so to do, the court need not instruct on the effect of circumstantial evidence in a civil case." § 225. Propriety and sufficiency An instruction on circumstantial evidence, to the effect that such evidence is to be regarded only when it is strong and satis- factory, is erroneous,® as is, of course, a charge which precludes the consideration of circumstantial evidence.* With proper quali- fications the court may instruct that circumstantial evidence is as competent and as satisfactory as direct,^** and a charge that cir- cumstantial evidence, when strong and convincing, is often the most satisfactory from which to draw conclusions as to the exist- ence or nonexistence of a disputed fact, is not open to the objec- tion that it places a higher value on presumptions or inferences than on positive or direct testimony." The sufficiency of a charge as to circumstantial evidence cannot be questioned, in the absence of a request for a more specific instruction.^* B. Criminal Cases 1. Duty and Right of Court to Instruct on Cvnpumstantial Bvidence Instructions criticized as invading province of jury, see ante, § 53. § 226. General rule Instructions, in a criminal prosecution, as to the weight to be attached to circumstantial evidence, are not required, where all the evidence for the state is positive, or all the facts bearing upon the commission of the alleged offense are testified to by eyewit- nesses ; ^* but where the state relies, for the conviction of the de- 6 Wells V. Chamberlain, 168 N. W. lo Van Norman v. Modern Brother- 238, 185 Iowa, 264. I'ood of America, 121 N. W. 1080, 143 7 Cowart V. Strickland, 100 S. E. Iowa, 536. 447, 149 6a. 397, 7 A. L. B. 1110. n Wheelan v. Chicago, M. & St. P. 8 McKay v. Seattle Electric Co., Ey. Co., 85 Iowa, 167, 52 N. W. 119. 136 P. 134, 76 Wash. 257. 12 Bamett v. Farmers' Mut. Fire » Rea V. Missouri, 17 Wall. 532, 21 Ins. Co., 73 N. W. 372, 115 Mich. 247. -L. Ed. 707; Glass v. Cook, 30 Ga. is Ala. Miller v. State, 74 So. 840, 133. 16 Ala. App. 3; Cowart v. State, 65 INST.TO Juries— 28 226 INSTRUCTIONS TO JURIES 434 fendant, entirely upon circumstantial evidence," or where the evi- dence is such that a conviction may be had upon circumstantial So. 666, 11 Ala. App. 102; Bailey v. State, 53 So. 296, 390, 168 Ala. 4; Welch V. State, 27 So. 307, 124 Ala. 41. in. People V. Zurek, 115 N. E. 644, 277 111. 621. Tex. Gowans v. State, 145 S. W. 614, 64 Tex. Cr. R. 401; Jones v. State (Cr. App.) 77 S. W. 802 ; Camp- bell V. State (Cr. App.) 38 S. W. 171. W. Va. State v. Cook, 72 S. E. 1025, 69 W. Va. 717. 14 Ala. Mitchell v. State, 30 So. 348, 129 Ala. 23 ; Wilson v. State, 29 So. 569, 128 Ala. 17 ; Gilmore v. State, 13 So. 536, 99 Ala. 154. Ga. Kincaid v. State, 79 S. E. 770, 13 Ga. App. 683 ; Allen v. State, 79 S. E. 769, 13 Ga. App. 657; Hays v. State, 74 S. E. 314, 10 Ga. App. 823 ; Middleton v. State, 66 S. E. 22, 7 Ga. App. 1 ; Lewis v. State, 64 S. E. 701, 6 Ga. App. 205 : Hart v. State, 23 S. E. 831, 97 Ga. 365. 111. People V. Ambach, 93 N. E. 310, 247 111. 451. Iowa. State V. Blydenburg, 112 N. W. 634, 135 Iowa, 204, 14 Ann. Gas. 443. Kan. State v. Miller, 133 P. 878, 90 Kan. 230, Ann. Cas. 1915B, 818. Mich. Gablick v. People, 40 Mich. 292. Mo. State v. Fitzgerald, 201 S. W. 86; State v. Smith, 190 S. W. 288; State V. Wooley, 115 S. W. 417, 215 Mo. 620. N. M. State V. McKnight, 153 P. 76, 21 N. M. 14; Territory v. Lermo, 46 P. 16, 8 N. M. 566. Ohio. Carter v. State, 4 Ohio App. 193. Okl. Pierson v. State, 164 P. 1005, 13 Okl. Cr. 382; Kirk v. State, 11 Okl. Cr. 203, 145 P. 307; Price t. State, 9 Okl. Cr. 359, 131 P. 1102; Baldwin v. State, 11 Okl. Cr. 228, 144 P. 634. Tex. Moore v. State, 214 S. W. 347, 83 Tex. Cr. R. 573 ; Anderson v. State, 213 S. W. 639, 85 Tex. Cr. R. 411 ; Bell v. State, 206 S. W. 516, 84 Tex. Cr. R. 197; Love v. State, 199 S, W. 623, 82 Tex. Cr. R. 411; Ren- fro V. State, 198 S. W. 957, 82 Tex. Cr. R. 197; Henderson v. State (Cr. App.) 197 S. W. 869 ; Coulter v. State,^ 162 S. W. 885, 72 Tex. Cr. R, 602; Broadnax v. State, 150 S. W. 1168, 68 Tex. Cr. R. 177 ; Veasly v. State (Cr. App.) 85 S. W. 274 ; Stewart v. State (Cr. App.) 77 S. W. 791; Trejo v. State, 74 S. W. 546, 45 Tex. Cr. E. 127; Childers v. State, 37 Tex. Cr. R. 392, 35 S. W. 654; Polanka v. State, 33 Tex. Cr. R. 634, 28 S. W. 541 ; Martin v. State, 32 Tex. Cr. R. 441, 24 S. W. 512 ; Scott v. State (Cr. App.) 23 S. W. 685; Montgomery v. State (Cr. App.) 20 S. W. 926 ; Navar- row V. State (App.) .17 S. W. 545; Bennett v. State (App.) 15 S. W. 405 ; Daniels v. State (App.) 14 S. W. 395 ; Deaton v. State (App.) 13 S. W. 1009 ; Scott V. State (App.) 12 S. W. 504; Crowley v. State, 26 Tex. App. 578, 10 S. W. 217; Willard v. State, 2b Tex. App. 126, 9 S. W. 358; Orowell V. State, 24 Tex. App. 404, 6 S.' W. 318 ; Jones v. State, 23 Tex. App. 501, 5 S. W. 138; Ramirez v. State, 20 Tex. App. 133; Riley v. Same, 20 Tex. App. 100; Counts v. State, 19 Tex. App. 450; Wright v. State, 18 Tex. App. 358; Allen v. State, 16 Tex. App. 237; Bryant v. State, Id., 144 ; Faulkner v. State, 15 Tex. App. 315; Cook v. State, 14 Tex. App. §6; Lee V. State, Id., 266; Thomas v. State, 13 Tex. App. 493 ; Ray v. State. 13 Tex. App. 51; Smith v. State, 7 Tex. App. 382. Utah. State V. Romeo, 128 P. 530, 42 Utah, 46. W. Va. State V. Lewis, 72 S. E. 475, 69 W. Va. 472, Ann. Cas. 1913A, 1203. Illustrations of cases of eircnm- stantial evidence requiring the court to instruct thereon. Where, in a prosecution for burglary, the stolen property wag found in the house of one M., who testified that he obtained it from defendant, and defendant testified that he did not enter the house burglarized and had no connection with the theft whatso- ever, but that at night M. awakened . him and paid him for carrying the 435 INSTRUCTIONS ON CIRCUMSTANTIAL EVIDENCE § 226 alone,^^ the court must always, upon request, instruct upon the property from the street where it then was to M.'s store, defendant was en- titled to a charge on the law of cir- cumstantial evidence. Gonzales v. State (Tex. Cr. App.) 105 S. W. 196. Where, in a prosecution for forgery in raising the amount of a check, the prosecuting witness testifies that the check called for $8.25 when he signed and delivered it, and that when it came back to his hands, after hav- ing been cashed, it called for $18.25, defendant is entitled to an instruc- tion on circumstantial evidence, his connection with the alteration of the instrument being merely circumstan- tial. Dysart v. State, 79 S. W. 534, 46 Tex. Cr. E, 52. Where the only evidence of defendant's forgery was that he presented, a forged order for money, which he said was given him by the person by whom it purported to be signed, the act of forgery was only established inferentially, and a failure to charge on the law of cir- cumstantial evidence was reversible error. Hanks v. State (Tex. Cr. App.) 56 S. W. 922. Where, on a trial for murder of an illegitimate child, the mother of the child testified that de- fendant was its father; that, when the child was bom, witness and de- fendant were alone in the house; that defendant took the child, which had cried, into another room, and wit- ness heard him pouring water; that he came back and said the child was out there in the water ; that he made a fire, and went out and soon return- ed with the child and placed it on the fire where it burned a long while; and that the child made no noise after being taken from the room, and witness did not state Whether the child was alive when placed on the fire, it was held that, whether death resulted from drowning or burning, the case was one of circum- stantial evidence, and a refusal to instruct as to such evidence was er- ror. Puryear v. State, 28 Tex. App. 73, 11 S. W. 929. Where the indict- ment charged, first, the killing by shooting, and, second, by striking with an iron, and an eyewitness testi- fied that before the shot was fired defendant struck deceased with the Iron, but it appeared that death re- sulted from the shot alone, and wit- nesses heard a shot about 20 minutes after deceased was struck with the iron, but deceased's body was found nearly a mile from the witnesses, and there were others who heard a shot at about the same time in the vicin- ity of the place where the body was found, and deceased had but one bul- let wound, it was held that it was re- versible error not to instruct as to circumstantial evidence as to defend- ant shooting deceased. Leftwich v. State, 34 Tex. Cr. R. 489, 31 S. W. 385. In prosecution for murder, where there was no evidence that de- fendant actually took part in the hom- icide, and where the evidence, if any, that he aided or abetted the person committing homicide was wholly cir- cumstantial, the law of circumstan- tial evidence should be submitted. Pizana v. State, 193 S. W. 671, 81 Tex. Cr. R. 81. Where there had been no difficulty between defendant and deceased, and defendant in a general fight struck deceased, but it was not shown who the others In the fight were or what kind of an instrument made the wound, a failure to charge on circumstantial evidence was error. Hluddleston v. State, 156 S. W. 1168, 70 Tex. Cr. E. 260. Where there was no positive testimony of a sale In vio- lation of the prohibition law, and there was positive testimony of a gift and the state sought to overcome it by circumstantial evidence, the court must, on request, charge on circum- stantial evidence. Ely v. State, 158 S. W. 806, 71 Tex. Cr. R. 211. In pros- ecution for cattle theft, where only defendant's connection with cattle after they were taken was proved by direct evidence, and his possession was explained, court should have charged on circumstantial evidence. Rollins V. State, 203 S. W. 355, 83 Tex. Cr. R. 345. Where there is no confession by defendant, nor positive proof of the gist of theft (that is, the 15 State V. Truskett, 118 P. 1047, 85 Kan. 804, § 226 INSTRUCTIONS TO JURIES 436 nature of such evidence and its probative force and effect. Thus where, in a prosecution for larceny, the state relies' for conviction upon evidence of the possession by the defendant of the stolen property, a charge upon circumstantial evidence is required.^* So fraudulent taking), the case rests on circumstantial evidence, and a charge thereon is necessary. Pace v. State, 53 S. W. 689, 41 Tex. Or. R. 203, re- versing judgment 51 S. W. 953, 41 Tex. Cr. R. 203, on rehearing. On a •prosecution for the theft of hogs, de- fendant's presence, about half a mile distant from the scene of the theft, with others who stole them, and his flight with them when discovered in possession of the hogs, are not such positive evidence of a taking by de- fendant as will justify the court in omitting to instruct the jury as to the law of circumstantial evidence. Montgomery v. State (Tex. Cr. App.) 20 S. W. 926. Though, on a trial for the theft of a cow, there are strong circumstances to show that the stol- en animal was the one which witness saw defendant drive into his field within a week before the stolen cow was missed and its beef and hide found at defendant's house, yet, as the witness did not see and indenti- fy the hide as of the cow he had seen defendant drive into his field, a fail- ure to instruct on the law of circum- stantial evidence is error. Smith v. State (Tex. App.) 12 S. "W. 869. Where there Is no positive proof that accused wag nearer than 30 miles to the place from where a horse was stolen, a charge on cii'cumstantial ev- idence should have been given. Green V. State (Tex. Cr. App.) 34 S. W. 283. Where defendant was hired to deliver 28 head of cattle, which he had never seen, to a person in another county, defendant and a negro who assisted him having trouble In getting the cattle across a certain creek, and some getting scattered in the timber, and the negro testified that some loose cattle ran through the highway at a place near where the stolen cow was kept, and the owner of the house where defendant stopped for dinner testified that defendant only had 27 head of cattle, but he delivered 28 head, including the stolen cow, and defendant claimed that he did not know he had the stolen cow until aft- er the cattle were delivered, it was held that it was error to fail to sub- mit the issue of circumstantial evi- dence In a prosecution for theft. York V. State, 61 S. W. 128, 42 Tex. Cr. R. 528. Where, on a trial for the larceny of money, the evidence showed that the prosecutor had the money in a drawer in an office, which was locked, that accused asked for the key to the ofllce to procure cloth- ing therein, that prosecutor gave him a bunch of keys containing the key to the office and to the drawer, that accused left on the next train after going into the office, that prosecutor on going, into the office missed the money, a ragged $5 bill, that he wired the conductor of the train on which the accused was riding, and that the conductor secured a ragged $5 bill from accused, identified by prosecutor, a charge on circumstantial evidence was warranted. Suggs v. State, 148 S. W. 186, 65 Tex. Cr. R. 67. In a prosecution for theft of a hog, testi- mony that a witness, hearing shots, walked half a mile, and came in sight of accused hanging a hog in a tree, that he had a gun, and that the hog was shot, requires a charge on cir- cumstantial evidence. Guerrero v. State, 80 S. W. 1001, 46 Tex. Or. R. 445. A statement by defendant that he had branded the horse which he was charged to have stolen did not make the ease one of direct evidence, since the statement did not show that the branding and the taking were con- temporaneous, but was only a fact from which the unlawful taking might be Inferred; hence it was error to refuse to instruct on circumstantial evidence. Gentry v. State, 56 S. W. 68, 41 Tex. Cr. R. 497. 1.6 Miller v. State, 225 S. W. 382; Miller v. State fCr. App.) 225 S. W. 379, ^12 A. L. R. 597; Coleman v. State, 199 S. W. 473, 82 Tex. Or. R. 332 ; Pierson v. State, 180 S. W. 108(*, 437 INSTRUCTIONS ON CIRCUMSTANTIAL EVIDENCE §227 such rule applies in a prosecution for forgery, or for passing a forged instrument, where the evidence of the state is circum- stantial.-''' As a general rule the court need not instruct as to any particular circumstance,^® but the case may be such as to make it error to refuse to charge that a particular circumstance consti- tutes no evidence against the defendant.^® An omission to charge on circumstantial evidence is not cured by the ordinary instruc- tion on reasonable doubt.*" § 227. Rule where evidence is noit entirely circumstantial The general rule is that where, in addition to circumstantial evidence, there is direct and positive evidence of the guilt of the defendant,*^ or respecting the corpus delicti,** the omission of the 78 Tex. Or. R. 275 ; Burdett v. State, 101 S. W. 988, 51' Tex. Or. R. 345 ; Arm- stead v. State, 87 S. W. 824, 48 Tex. Cr. R. 304 ; Cortez v. State (Cr. App.) 74 S. W. 907; Davis v. State, 74 S. \V. 544, 45 Tex. Or. R. 132; Wallace V. State (Or. App.) 66 S. W. H02 ; Hodge V. State, 53 S. W. 862, 41 Tex. Cr. R. 229 ; Poston v. State (Cr. App.) 35 S. "W. 656; Alderman v. State (Cr. App.) 23 S. W. 685; Hyden v. State, 31 Tex. Or. R. 401, 20 S. W. 764: Taylor v. State, 27 Tex. App. 463, 11 S. W. 462 ; Guajardo v. State, 24 Tex. App. 603, 7 S. W. 331 ; FuUer V. State, 24 Tex. App. 596, 7 S. W. 330 ; Sullivan v. State, 18 Tex. App. 623. 17 Oarrell v. State, 184 S. W. 190, 79 Tex. Cr. H. 231 ; Lasister v. State, 94 S. W. 233, 49 Tex. Or. R. 532; Nichols V. State, 44 S. W. 1091, 39 Tex. Or. R. 80. 18 Smotherman v. State, 83 S. W. 838, 47 Tex. Or. R. 309. 19 State V. Austin, 40 S. E. 4, 129 N. C. 534. 2" Stmclsman v. State, 7 Tex. App. 581 ; WaUace v. State, Id. 570 ; Hunt V. State, Id. 212. 21 tr. S. Blanton v. United States, (0. C. A. Mo.) 213 F. 320, 130 O. O. A. 22, Ann. Cas. 1914D, 1238. Ala. McCoy v. State, 54 So. 428, 170 Ala. 10; Cowan v. State, 34 So. 193, 136 Ala. 101; Hall v. State, 30 So. 422, 130 Ala. 45. Ark. Jordan v. State, 217 S. W. 788, 141 Ark. 504; Griffin v. State, 216 S. W. 34, 141 Ark. 43; Bartlett V. State, 216 S. W. 33, 140 Ark. 553 ; Brown v. State, 203 S. W. 1031, 134 Ark. 597 ; McCain v. State, 201 S. W. 840, 132 Ark. 497 ; Vaughan v. State, 57 Ark. 1, 20 S. "W. 588; Cohen v. State, 32 Ark. 226. Cal. People v. Lapara, 183 P. 545, 181 Cal. 66; People v. Gorman, 161 P. 757, 31 Cal. App. 762; People v. Raber, 143 P. 317, 168 Cal. 316 ; Peo- ple V. Holden, 109 P. 495, 13 Cal. App. 354. Fla. Thomas v. State, 68 So. 944, 69 Fla. 692; Minor v. State, 46 So. 297 55 Fla 77 Ga. Walker v. State, 101 S. B. 776, 24 Ga. App. 656; Ingram v. State, 100 S. E. 773, 24 Ga. App. 332; Scar- boro V. State, 99 S. E. 637, 24 Ga. App. 27; Jones \f. State, 94 S. E. 248, 147 Ga. 356 ; Lockett v. State, 92 S. E. 948, 20 Ga. App. 180; Vincent V. State, 91 S. E. 690, 146 Ga. 619; Ponder v. State, 90 S. E. 365, 18 Ga. App. 703; HoUingsworth v. State, 88. S. E. 213, 17 Ga. App. 725; Jackson V. State, 86 S. E. 459, 17 Ga. App. 269; Cooner v. State, 85 S. E. 688, 16 Ga. App. 539; Butler v. State, 85 S. B. 340, 143 Ga. 484; Brannon v. 2 2 State V. Holbrook, 188 P. 947, 98 Or. 43. In a prosecntion fop bomicide, an instruction on circumstantial evi- dence is not necessary, where the only resort to such evidence is for the pur- pose of showing the manner in which the homicide took place. State v. Baird (Mo.) 231 S. W. 625. 227 INSTRUCTIONS TO JURIES 438-- court to charge the law applicable to cases of circumstantial evi- dence only will not constitute error. Thus, where the only issue- State, 80 S. E. 7, 140 Ga. 787 ; Banks V. State, 78 B, E. 1014, 13 Ga. App. 182; Brooks v. State, 78 S. E. 143, 12 Ga. App. 698 ; Harper v. State, 77 S. E. 915, 12 Ga. App. 651 ; Hegwood V. State, 75 S. E. 138, 138 Ga. 274; Toliver v. State, 74 S. E. 1000, 138 Ga. 138; Wilson v. State, 72 S. E. 605, 10 Ga. App. 67 ; Benton v. State, 71 S. E. 498, 9 Ga. App. 422; Ben- ton V. State, 71 S. E. 8, 9 Ga. App. 291; Bailey v. State, 68 S. B. 457, 8 Ga. App. 32; Holt v. State, 66 S. E. 279, 7 Ga. App. 77 ; Day v. State, 66 S. E. 250, 133 Ga. 434; Middleton V. State, 66 S. E. 22, 7 Ga. App. 1; Cliett V. State, 63 S. E. 626. 132 Ga. 36; Blvins v. State, 63 S. E. 523, 5 Ga. App. 434 ; Nobles v. State, 56 S. E. 125, 127 Ga. 212; Rosenthal v. State, 55 S. E. 497, 126 Ga. 558 ; Per^ due V. State, 54 S. E. 820, 126 Ga. 112; Moore v. State, 25 S. E. 362, 97 Ga. 759. 111. People V. Dougherty, 107 N. E. 695, 266 111. 420. Iowa. State v. Mitchell, 116 N. W. 808, 139 Iowa, 455. Kan. State v. Kennedy, 184 P. 734, 105 Kan. 347; State v. Link, 125 P. 70,. 87 Kan. 738. Ky. Smith v. Common-vC'ealth, 131 S. W. 499, 140 Ky. 599. La. State v. Gordon, 39 So. 625, 115 La. 571. Miss. Purvis v. State, 14 So. 268, 71 Miss. 706. Mo. State V. Jackson, 186 S. W. 990; State v. Steinkraus, 148 S. W. 877, 244 Mo. 152 ; State v. Davis, 140 S, W. 902, 237 Mo. 237 ; State v. Mc- Cord, 140 S. W. 885, 287 Mo. 242; State V. Hubbard, 122 S. W. 694, 223 Mo. 80; State v. Nerztnger, 119 S. W. 379, 220 Mo. 36 ; State v. Salmon, 115 S. W. 1106, 216 Mo. 466; State v. Wooley, 115 S. W. 417, 215 Mo. 620; State v. Bobbitt, 114 S. W. 511, 215 Mo. 10 ; State v. Croae, 108 S. W. 555, 209 Mo. 816. N. M. State V. McKnight, 153 P. 76, 21 N. M. 14. N. C. State v. Neville, 72 S. E. 798, 157 N. C. 591. N. D. State v. Foster, 105 N. W.. 938, 14 N. D. 561. Okl. Hendrix v. Ujiited States,. 101 P. 125, 2 Okl. Or. 240. S. B. State V. Cline, 132 N. W.. 160, 27 S. D. 573. Tex. Wilson v. State, 204 S. W. 321, 83 Tex. Or. 593 ; Soders v. State,. 19b S. W. 1146, 81 Tex. Cr. R. 506; Marion v. State, 190 S. W. 499, 80' Tex. Or. R. 478 ; Wilson v. State, 182^ , S. W. 891, 79 Tex. Cr. R. 7; Davis v. State, 180 S. W. 1085, 78 Tex. Cr. R. 352; Egbert v. State, 176 S. W. 560, 76 Tex. Or. R. 668; Scott v. State, 175 S. W. 1054, 76 Tex. Cr. R.. 410 ; Terrell v. State, 174 S. W. 1088, 76 Tex. Cr. R. 428; Vandeveer v. State, 173 S. W. 1197, 76 Tex. Cr. R. 308 ; Guerrero v. State, 171 S. W. 731;. 75 Tex. Cr. R. 558; Cook v. State, 171 S. W. 227, 75 Tex. Cr. R. 350; Herrera v. State, 170 S. W. 719, 73 Tex. Cr. R. 120; Womack v. State, 170 S. W. 139, 74 Tex. Cr. E. 640: Thompson v. State, 167 S. W. 345, 74 Tex. Cr. R. 145; Forvsrard v. State, 166 S. W. 725, 73 Tex. Cr. R. 561; Hendricks v. State, 160 g. W. 1190, 72 Tex. Cr. R. 75; Barrov^ v. State, 160 S. W. 458, 71 Tex. Cr. R. 549 ;• Law v. State, 160 S. W. 98, 71 Tex. Cr. R, 179; Ballard v. State, 160 S. W. 92, 71 Tex. Cr. R. 168 ; Haynes v.. State, 159 S. W. 1059, 71 Tex. Cr. R. 31 ; Anderson v. State, 159 S. W. 847,, 71 Tex. Cr. R. 27; Nobles v. State, 158 S. W. 1133, 71 Tex. Cr. R. 121; Ely V. State, 158 S. W. 806, 71 Tex. Cr. R. 211; PuUen v. State, 156 S. W. 985. 70 Tex. Cr. R. 156; Perry v. State, 155 S. W. 263, 69 Tex. Cr. R. 644; Laird v. State, 155 S. W. 260, 69 Tex. Cr. R. 558 ; Meadows v. State (Cr. App.) W4 S. W. 546; Ferrell v. State, 152 S. W. 901, 68 Tex. Cr. R, 487 ; Whorton v. State, 151 S. W. 300, 68 Tex.. Cr. R. 187; Clary v. State, 150 S. W. 919, 68 Tex. Cr. R. 290 ; Syl- vas V. State, 150 S. W. 906, 68 Tex. Cr. R. 117; Willcox v. State, 150 S. W. 898, 68 Tex. Cr. R. 138 ; Weslev v. State, 150 S. W. 197, 67 Tex. Cr. R. 507; Moray v. State, 145 S. W. 439 INSTRUCTIONS ON CIRCUMSTANTIAL EVIDENCE 227 in a prosecution for larceny is whether the stolen property be- 927, 65 Tex. Or. R. 504; Kobinson V. State, 145 S. W. 345, 66 Tex. Or. R. l.SS; Mitchell v. State, 144 S. W. 1006, 65 Tex. Cr. R. 545; Foote v. State, 144 S. W. 275, 65 Tex. Or. E. 368, Ann. Cas. 1916A, 1184; WU- Mams V. State, . 143 S. W. 634, 65 Tex. Cr. R. 82; Wright v. State. 141 S. W. 228, 63 Tex. Cr. R. 364: Ellington v. State, 140 S. "W. 1102, 63 Tex. Cr. R. 420; Brogdon v. State, 140 S. W. 352, 63 'fex. Cr. R. 475; Taylor v. State, 138 S. W. 615, 62 Tex. Cr. R. 611 ; Bass v. State, 127 S. W. 1020, 59 Tex. Cr. R. 186 ; Cab- rera V. State, 118 S. W. 1054, 56 Tex. Cr. R. 141 ; Potts v. State, 118 S. W. 535, 56 Tex. Cr. R. 39; Knuckles v. State, 114 S. W. 825, 55 Tex. Cr. R. 6 ; Tinsley v. State, 106 S. W. 347, 52 Tex. Cr. R. 91 ; McCue v. State (Cr. App.) 103 S. W. 883; Richardson v. State, 103 S. W. 852 ; Smith v. State, 102 S. W. 406. 51 Tex. Cr. R. 427; Glascow V. State, 100 S. "W. 933, 50 Tex. Cr. R. 635 ; Hemdon v. State, 99 S. W. 558, 50 Tex. Cr. R. 552; Ma- honey V. State (Cr. App.) 98 S. W. 854: Yancy v. Same, 87 S. W. 693, 48 Tex. Cr. R. 166 ; Aladin v. State, 86 S. W. 327, 48 Tex. Cr. R. 1, 122 Am. St. Rep. 730; Usher v. State, 81 S. W. 712, 47 Tex. Cr. R. 98; Cruse V. State (Cr. App.) 77 S. W. 818; Leftwich v. State (Cr. App.) 55 S. W. 571; Nlte v. State, 54 S. W. 763, 41 Tex. Cr. E. 340 ; Wolf v. State (Cr. App.) 53 S. W. 108; Glover v. State, 46 S. W. 824 ; Williams y. State (Cr. App.) 45 S. W. 494; Taylor v. State (Cr. App.) 42 S. W. 285 ; Colter V. State, 39 S. W. 576, 37 Tex. Cr. R. 284 ; Upchurch v. State (Cr. App.) 39 S. W. 371 ; Rogers v. State, 38 S. W. 184, 36 Tex. Cr. R.. 563; Granado v.- State, 37 Tex. Cr. R. 426, 35 S. W. 1069 ; Adamg v. State, 34 Tex. Cr. R. 470, 31 S. W. 372; Hayes v. State, 30 Tex. App. 404, 17 S. W. 940. W. Va. State V. Wilson, 83 S. E. 44, 74 W. Va. 772. Wis. Anderson v. State, 114 N. W. 112, 133 Wis. 601. Illngtrations of cases of direct evidence making it nnnecessary to charge on circumstantial «t1- dence. In a prosecution for burgla- ry, a showing that defendant was seen to enter the house, was found in the room alleged to have been burglarized, the door of which was pre^riously closed, and that she was seen running out of the room, made a case of direct evidence, and it was not necessary to charge on cir- cumstantial evidence. Smith v. State (Tex. Cr. App.) 90 S. W. 638. Where- defendant obtained money by repre- senting directly to a bank, that he had a deposit in another bank, drawing his check for the amount against such deposit, this representation being sho*n to be false by the testimony of the latter bank's clerk, and de- fendant testified that he believed at the time that he had the amount claimed on deposit, it was held that a special charge on circumstantial ev- idence was unnecessary. Brown v. State (Tex. Cr. App.) 43 S. W. 986. Where, in a prosecution for fraudu- lently converting a horse belonging to another, there was direct evidence that defendant hired the horse from the owner, and that defendant after- wards sold the horse, the mere fact that the owner sent the horse to de- fendant by a servant, and could not positively testify that the servant de- livered the horse to defendant, did not require a charge on circumstan- tial evidence. Lewallen v. State, 87 S. W. 1159, 48 Tex. Cr. R. 283. The fact that witnesses who testified to seeing the petitioning defendant raise his arm and shoot were so far from the scene of the shooting that they could hear none of the conversation between the parties does not make their testimony circumstantial, so as to entitle that defendant to an in- struction as to conviction on purely circumstantial evidence. State v. Holbrook, 193 P. 434, 98 Or. 43. Where a defendant, arrested for the homicide of a child, states that the mother killed the child, that he saw the killing, after which the mother told him to bury the child, that he buried it, and the mother gave him money with which to leave the coun- try, and the mother testifies that he 227 INSTRUCTIONS TO JURIES 440' longs to the prosecuting witness, who testifies that it belongs to took the child out alive, and after- wards returned, stating that he had buried it under a certain tree, and subsequently the body was found un- der said tree, it is not error to refuse instructions on circumstantial evi- dence. Red V. State (Tex. Or. App.) 53 S. W. 618. Where defendant was accused of being an accomplice to a homicide, and the alleged principal testified that defendant advised him to kill deceased, and gave him a gun for that purpose, there was sufficient direct evidence, so that the case was not wholly based on circumstantial evidence, and the refusal to charge the law applicable to circumstahtial evidence was not error. Thomas v. State, 62 S. W. 919, 43 Tex. Cr. R. 20, 96 Am. St. Rep. 834. Where a witness testifies that he saw defend- ant, who was one of an armed mob, shoot deceased, and saw deceased fall- ing, there is no call for a charge on circumstantial evidence, though oth- ers of the party also shot deceased, and he was :^ound a little distance from where he fell. Augustine v. State, 52 S. W. 77, 41 Tex. Cr. R. 59, 96 Am. St. Rep. 765. A charge, in a prosecution for murder, that, when the prosecution relies on cir- cumstantial evidence alone, proof, by a preponderance of evidence, of a single fact inconsistent with defend- ant's guilt, calls for his acquittal, is ^ ^properly refused where there is posi- tive testimony that defendant com- mitted the killing, and no fact incon- sistent with his guilt is shown. Rains V. State, 88 Ala. 91, 7 So. 315. In- structions defining the law of circum- stantial evidence need not be given in a homicide case, where any circum- stances in evidence were as to de- fendant's relations with another man than deceased, her husband, and were introduced only to show motive. Law- son V. State, 84 N. B. 974, 171 Ind. 431. Where evidence of the killing is given by an accomplice, who was present at the time, the fact that it was dark, and that he was some dis- tance from the parties when at oc- curred, do6s not require a charge on circumstantial evidence. Kldwell v. State, 35 Tex. Or. R. 264, 33 S. W. 842. Where, in a prosecution for grand larceny, charged to have been committed by defendant stealing cer- tain money from the prosecutor's per- son, the only circumstantial evidence introduced was corroborative of the direct testimony of the prosecuting witness, it was not error for the court to refuse requested instructions which assumed that the case was one of cir- cumstantial evidence. People v. Lon- nen, 73 P. 586, 139 Cal. 634. Where two witnesses testified to seeing ac- cused in the act of removing a ring from the cravat of a sleeping person, though they could not see the ring on account of accused's hand being in the way, but had seen it on the cravat and noticed afterwards that it was gone, it cannot be said that the prose- cution relied entirely or mainly on circumstantial evidence ; and instruc- tions based on such an assumption were properly refused. People v. Burns, 53 P. 1096, 121 Cal. 529. Where defendant was indicted for sending a threatening letter, and the postmaster testified he saw defendant place the letter in the mail box, and that he immediately afterwards found the letter in the mail box, which was previously empty, the evidence as to defendant's mailing the letter vms di- rect, so that a failure to charge the law of circumstantial evidence was not error. Dunn v. State, 63 S. W. 571, 43 Tex. Cr. R. 25. Where one on trial for stealing hogs testified that he got possession of them with the con- sent of prosecutor, of whom he pur- chased them, and the defense of pur- chase was sutriciently submitted, he was not entitled to a charge on cir- cumstantial evidence. Reed v. State, (Tex. Cr. App.) 46 S. W. 931. Implied admission. Where a bur- glary is proved and defendant is shown to have been in recent posses- sion of goods stolen from the house at the time of the alleged burglary, and there is evidence of an implied admis- sion by accused of his guilt, and the jury are instructed as to the weight to be given to his explanation of re- cent possession of the stolen goods- 441 INSTRUCTIONS ON CIRCUMSTANTIAL EVIDENCE § 227 him,** or where the accused in a prosecution for larceny relies on a claim of ownership,** or where in a prosecution for burglary the evidence as to defendant's entry of the house in question is posi- tive,*^ or where the only issue is as to the sanity of the defendant, and the evidence in regard thereto is open, direct, and oral,** or where, in a prosecution for adultery, the paramour of the defend- ant testifies positively against him,*' a charge on circumstantial evidence is not required. So, where the state relies on direct evidence of the offense charged, and circumstantial evidence is introduced only for the purposes of corroboration, it is not error to refuse to instruct as to what would be necessary to warrant a conviction on circumstantial evidence.** So instructions on cir- cumstantial evidence are not required, where the defendant is positively identified as the guilty party by a witness, or by state- ments made as a part of the res gestae or as dying declarations ; *' nor are they required in a prosecution for rape, where the prose- cutrix testifies fully to the whole transaction and all the attending circumstances,*" and want of exact certainty in the identification by a witness of the defendant as the one committing the crime charged does not call for such instructions.*^ The mere fact that the intent with which an alleged criminal act was done is a matter of circumstantial evidence does not re- quire a charge on such evidence,** as where, in a prosecution for and as to reasonable doubt, a new ^^ Moore v. State, 125 S. W. 34, 58 trial will not be granted for failure to Tex. Cr. K. 183. charge as to what weight the law at- as state v. Shives, 165 P. 272, 100 taches to evidence of a purely circum- Kan. 588; State v. Gereke, 86 P. 160, stantial nature. McBlroy v. State, 53 74 Kan. 196, judgment reversed on re- S. B. 759, 125 Ga. 37. hearing Same v. Gerike, 87 P. 759, 74 Matters mot constituting direct Kan. 196 ; State v. Calder, 59 P. 903, e-vidence nritliin mle. In a prose- 23 Mont. 504. cution for assault with intent to mur- 20 Thompson v. State, 187 S. W. der, a statement by the person as- 204,, 79 Tex. Cr. K. 478; Gradington saulted that, after the gun was fired v. State, 155 S. W. 210, 69 Tex. Cr. E. and he had been shot, he turned, look- 595 . Jenkins v. State, 93 S. W. 726, ed, and recognized defendant's face 49. Tex. Cr. B. 457, 122 Am. St. Rep. by the flash of the gun, was insuffi- §12; Hernandez v. State, 81 S. W. cient to take the case out of the rule 1210, 47 Tex. Cr R 20. of circumstantial evidence, and hence 3„ ^^^^^ ^ g^.^^ 98 g ^ 327 49 defendant was entitled to an mstruc- ^^^ q^. ^ 449 jji^j,^ ^_ g^j. ' g^ tion thereon. Henry v. State, 221 S. o yrr oak 4a tpy fir R 22q W. 1083, 87 Tex. Cr. E. 392. . sTMcTnk 7 State 44 S W 1101 23 Gann v. State (Tex. Cr. App.) 59 *^ ^°^^ ^- ^*^*®' ** g -^ 89g 3 2 s. D. State v. Harbour, 129 N. ' 2* Smith V. State, 136 S. W. 481, 62 .W. 565, 27 S. D. 42. Tex Cr. E. 124'. Tex. Egbert v. State, 176 S. W. 25 Camarillo v. State (Tex. Cr. 560, 76 Tex. Cr. R. 663 ; Williams v. App.) 68 S. W. 795. State, 124 S. W. 954, 58 Tex. Cr. R. 26 State V. Soper, 49 S. W. 1007, 82 ; Alexander v. State, 49 S. W. 229, 148 Mo 217. 50 S. W. 716, 40 Tex. Cr. R. 395; § 227 INSTRUCTIONS TO JURIES 442 larceny, the taking is proven by direct evidence, and the intent with which such act was committed is sought to be established by circumstantial evidence.^* The fact that the direct evidence in a case consists of the testimony of an accomplice does not take it out of the operation of the above rule, dispensing with the ne- cessity of a charge on circumstantial evidence.** In some jurisdictions an instruction on circumstantial evidence should never be given unless the evidence on behalf of the state is wholly circumstantial.*^ In other jurisdictions, ho'Wever, an admixture of direct evidence will not make it improper for the court to charge, or justify its refusal to charge, on circumstantial evidence, if the evidence is largely of the latter character,** and in one jurisdiction the giving of a brief correct instruction on cir- cumstantial evidence is proper, although the principal evidence for the state is that of an eyewitness.*' § 228. Rule where a confession or admission of defendant is in- troduced in evidence agsiinst him A confession or admission by the defendant of actual participa- tion in the act charged against him as a criminal offense consti- tutes direct evidence of guilt.** In accordance w*ith the rule stated above, therefore, where there is evidence of such a confession or admission, the court will not be required to charge on circum- stantial evidence.** This rule applies where the testimony to the Russell V. State, 44 S. W. 159, 38 Tex. Ga. App. 115 ; Eountree v. State (Tex. Or. R. 590. Cr. App.) 58 S. W. 106 ; Howard v. Vt. State V. Lapolnt, 88 A. 523, 87 State, 8 Tex. App. 612. Vt. 115, 47 L. R. A. (N. S.) 717, Ann. si state v. Kampert, 165 N. W. 972, Gas. 1916C, 318. 189 Minn. 132. 3 3 Burton V. State, 146 S. W. 186, 3 8 Ga. Perry v. State, 36 S. E. 65 Tex. Or. R. 578 ; Nixon v. State, 781, 110 Ga. 234. (Tex. Or. App.) 93 S. W. 555 ; Roberts Kan. State v. Kornstett, 61 P. 805, V. State, 70 S. W. 423, 44 Tex. Or. R. 62 Kan. 221. 267 ; Houston v. State, 47 S. W. 468. Mo. State v. Gartrell, 71 S. W. 34 Tune V. State, 94 S. W. 231, 49 1045, 171 Mo. 489. Tex. Cr. R. 445 ; Rios V. State, 48 S. Tex. Borrer v. State 204 S "W W. 505 ; Id., 47 S. W. 987, 39 Tex. 1003, 83 Tex. Or. R. 198 ; SuUenger Or. R. 675. v. State, 182 S. W. 1140, 79 Tex Cr 35 Mo. St^te V. Willard, 192 S. W. R. 98; Paul v. State, 45 S. W 725 437; State v. Dipley, 147 S. W. Ill, S9 u. S. (0. O. A. III.) Ossendorf 242 Mo. 461 ; State v. Nerzinger, 119 v. United States, 272 F 257 S. W. 379, 220 Mo. 36; State v. Clow, Ala. Green v. State, 12 So 416 110 S. W. 632, 131 M'o. App. 548. 97 Ala. 59. . . , Okl. Star V. State, 131 P. 542, 9 Ga. Horton v. State, 93 S. E. 1012 Okl. Cr. 210 ; Foster v. State, 126 P. 21 Ga. App. 120 ; Smith v. State 54 835, 8 Okl. Or. 139. S. E. 127, 125 Ga. 296; Griner v Or. State V. Holbrook, 188 P. 947, State, 49 S. E. 700, 121 Ga. 614. 98 Or. 43. 111. Langdon v. People, 24 N E. 3 Allen V. State, 80 S. E. 215, 14 874, 133 111. 382. 443 INSTRUCTIONS ON CIRCUMSTANTIAL EVIDENCE § 228 confession comes from an accomplice,** and although the cor- roboration of the accomplice giving such testimony be by cir- cumstantial evidence." So such rule applies, although the con- fession contains statements exculpating the defendant,** or al- though it is alleged to have been obtained by coercion,** and, in the absence of a request for such an instruction, the omission of the court to charge the law of circumstantial evidence, to be ap- plied if the jury do not believe that an alleged confession was made, is not error.** Mo. State v. Mills, 199 S. W. 131, 272 Mo. 526; State v. Robinson, 23 S. W. 1066, 117 Mo. 649. N. C. State v. Wesit, 68 S. B. 14, 152 N. C. 832. Tex. Miller v. State (Cr. App.) 225 S. W. 262; Tillman v. State (Cr. App.) 225 S. W. 165; Johnson v. State, 197 S. W. 995, 82 Tex. Cr. R. 82 ; Villareal v. State, 189 S. W. 156, 80 Tex. Cr. R. 133; Strickland v. State, 161 S. W. 110, 71 Tex. Cr. R. 582; Hargrove v. State, 140 S. W. 234, 63 Tex. Cr. R. 143; High v. State, 112 S. W. 939, 54 Tex. Cr. R. 533 ; Burk v. State, 95 S. W. 1064, 50 Tex. Cr. R. 185; Keith v. State, 94 S. W. 1044, 50 Tex. Cr. R. 63 ; White- head V. Statfe, 90 S. W. 876, 49 Tex. Cr. R. 123 ; Landreth v. State, 70 S. W. 758, 44 Tex. Cr. E. 239 ; Carmona V. State, 65 S. W. 928 ; Ricks v. State, 56 S. W. 928, 41 Tex. Cr. R. 676; Matthews v. State, 51 S. "W. 915, 41 Tex. Cr. R. 98 ; Hedriek v. State, 51 S. W. 252, 40 Tex. Cr. R. 532 ; "White V. State, 50 S. W. 705, 40 Tex. Cr. R. 366; Franks v. State (Or. App.) 45 S. W. 1013 ; Doucette v. State (Cr. App.) 45 S. W. 800; Holmes v. State (Cr. App.) 42 S. W. 979 ; Alhritton v. State (Cr. App.) 26 S. W. 398; White v. State, 32 Tex. Cr. R. 625, 25 S. W. 784; Wilson v. State (Cr. App.) 21 S. W. 361; Self v. State, 28 Tex. App. 398, 13 S. W. 602; Johnson v. State, 28 Tex. App. 17, 11 S. W. 667; Carr v. State, 24 Tex. App. 562, 7 S. W. 328, 5 Am. St. Rep. 905 ; Heard V. State, 24 Tex. App. 103, 5 S. W. 846. Illustrations of cases in vrliicli instructions not required within rule. Where the state introduced confessions admitting the killing, and defendant. While testifying, admitted the killing, a charge on circumstantial evidence v^as not required, notwith- standing defendant denied making the confessions. Gantt v. State (Tex. Cr. App.) 105 S. W. 799. Where, in a prosecution for mule theft, defend- ant had confessed to obtaining posses- sion of the mules by taking them from the pasture in which prosecutor was keeping them, and had also made con- flicting statements as to how he ob- tained them, the court was not bound to give a charge on circumstantial evidence, though the state relied on the circumstance of possession subse- quent to the alleged taking. Welch V. State, 95 S. W. 1035, 50 Tex. Cr. R. 28. Where the corpus delicti was clearly established, and defendant's confession, if believed, would require a conviction, and circumstances ad- duced were additional proofs of guilt, it was not error to exclude instruc- tions on circumstantial evidence. Dennis v. State, 23 So. 1002, 118 Ala. 72. Where, on a prosecution for the forgery of a note, defendant admitted making the note, but claimed that he had authority to do so, the court was not required to give a charge on cir- cumstantial evidence. Usher v. State, 81 S. W. 309, 47 Tex. Cr. R. 93. 40 Wampler v. State, 28 Tex. App, 352, 13 S. W. 144. 41 Tyler v. State, 180 S. W. 687. 78 Tex. Cr. R. 279. 42 Barnes v. State, 111 S. W. 943, 53 Tex. Cr. R. 628. 43 Jackson v. State (Tex. Cr. App.) 62 S. \V. 914. 44 Smith V. State, 54 S. B. 127, 125 Ga. 296. § 228 INSTRUCTIONS TO JUEIES 444- Confessions, however, may be circumstantial as well as direct evidence. If the fact or facts confessed are only matters from ■which an inference of participation in the alleged crime .arises, the- confession is circumstantial evidence.*^ It follows that such a confession will not relieve the court from the obligation to charge the law of circumstantial evidence.*® Thus, in a prosecution for burglary, a charge as to circumstantial evidence should be given when all the evidence in relation to the breaking and entering is circumstantial, although a plea of guilty by the defendant to a charge of theft of property stolen during the burglary is in evi- dence.*' § 229. Harmless error in refusing instruction Although the state relies entirely upon circumstantial evidence,. if it is full and satisfactory, without serious conflict, and clearly shows the guilt of the accused, a failure to charge on circum- stantial evidence will not require the granting of a new trial.** § 230. Necessity of request for instructions As a general rule it will not be error to fail to give an instruc- tion on circumstantial evidence, in the absence of a request there- for.*" This is particularly true where the state does not rely en- tirely on circumstantial evidence.®* Thus, where there is evidence 46 Hart V. State, 82 S. B. 164, 14 S. D. State v. Millard, 138 N. W. Ga. App. 714. 366, 30 S. D. 169 ; State v. Colvln, 124 48 Winn V. State, 198 S. W. 965, 82 N. W. 749, 24 S. D. 567. Tex. Or. K. 316; Bloch y. State, 193 Tex. Bennett v. State (Cr. App.) S. W. 303, 81 Tex. Cr. R. 1 ; Early 50 S. W. 945. V. State, 97 S. W. 82, 50 Tex. Or. boh, s. (C. O. A. Tex.) Bloch v, App. 344; Willard v. State, 26 Tex. U. S., 261 P. 321, certiorari denied App. 126, 9 S. W. 358. 40 S. Ct. 481, 253 U. S. 484, 64 L. Ed. .4T Beason v. State, 67 S. W. 96, 43 1025. Tex. Cr. R. '442, 69 L. R. A. 193. Ga, Mltcbell v. State (App.) 103 S. 48Toler V. State, 33 S. E. 629, 107 B. 180; Long v. State (App.) 102 S. Ga. 682; Richards v. State, 27 S. E. E. 359; Huckeba v. State, 100 S. E. 726, 102 Ga. 569. 757, 24 Ga. App. 333 ; EJtter v. State,. 4 U. S. (C. C. A. Minn.) Robinson 100 S. E. 453, 24 Ga. App. 275; Gold- V. United States, 172 F. 105, 96 0. C. en v. State, 99 S. B. 470, 23 Ga App A. 307 ; (C. C. A. Tex.) Hughes v. 788 ; Coppedge v. State, 96 S. E. 1046 United States, 231 F. 50, 145 0. C. A. 22 Ga. App. 631 ; Garrett v. State, 95 238. S. E. 301, 21 Ga. App. 801; Chislon v. Cal. People V. Balkwell, 76 P. State, 91 S. E. 893, 19 Ga. App. 607 ; 1017, 143 Cal. 259 ; People v. Hiltel, Bargeman v. State, 88 S. E. 591 17 63 P. 919. 131 Cal. 577. ■ Ga. App. 807; Teal v. State, 87 S. E. Colo. Reagan v. People, 112 P. 830, 17 Ga. App. 556 ; Wells v. State, 785, 49 Colo. 316. 86 S. E. 650, 17 Ga. App. 301 ; Jack- Iowa. State V. Hart, 118 N. W. son v. State, 86 S. B. 459, 17 Ga. App. 784, 140 Iowa, 456; State v. Bartlett, 269; Braxley v. State, 86 S. B. 425, 105 N. W. 59, 128 Iowa, 518. 17 Ga. App. 196 ; Everett v. State, 83 Kan. State v. Ingram, 16 Kan. 14. S. E. 428, 15 Ga. App. 390 ; Clark v. 445 INSTRUCTIONS ON CIRCUMSTANTIAL EVIDENCE § 231 of a confession of the defendant,**! or'of incriminatory admissions by iiim,** or wiiere the only circumstantial evidence relates to the intent of the defendant,^* a request is necessary to put the court in error in failing to charge on circumstantial evidence. However, in some jurisdictions, even where the evidence is in part direct, it is not considered good practice to fail to give an instruction on circumstantial evidence, though no request is made therefor, since the jury may not credit the direct evidence,^ and where the evidence produced by the state is entirely circumstantial it is the duty of the court to instruct thereon, whether a -request is made or not,^^ and although it is said in one jurisdiction that the performance of such duty is waived by the failure of the defend- ant to request an instruction,^* in other jurisdictions it is reversible error for the court not to instruct of its own motion on circum- stantial evidence, where the state relies exclusively on such evi- dence.*" 2. Sufficiency of Instructions and Propriety of Particular Instructions § 231. General principles It has been said ^hat there is no prescribed formula for an in- struction on the force and cogency of circumstantial evidence,®* State, 83 S. E. 223, 142 Ga. 601; Bar- 215, 14 Ga. App. 115 ; Harden v. State, ron V. State, 77 S. E. 214, 12 Ga. 78 S. B. 681, 13 Ga. App. 34 ; Young App. 842; Smith v. State, 74 S. E. v. State, 76 S. E. 753, 12 Ga. App. 86; 711, 11 Ga. App. 89 ; Jordan v. State, Bailey v. State, 74 S. E. 285, 10 Ga. 71 S. E. 875, 9 Ga. App. 578 ; Smith App. ,829 ; Tyus v. State, 72 S. E. V. State, 54 S. B. 127, 125 Ga. 296. 509, 10 Ga. App. 23 ; Twilley v. State, Kan. State v. Davis, 188 P. 231, Tl S. E. 587, 9 Ga. App. 435. 106 Kan. 527 ; State v. Kennedy, 184 Wyo. Gardner v. State, 196 P. 750. P. 734, 105 Kan. 347. ss State v. Woods, 185 P. 21, 105, siBloodworth v. State, 95 S. E. Kan. 554. j.„ ao q i? 532, 22 Ga. App. 132; Thomas y. State. ,." «.»• ^ ^«"%J-. If^^l SB. 88 S. B. 917, 18 Ga. App. 101 ; Sutton ^fii^?,^^.!'*'?^ of ATO62t Harris V. State, 88 S. B. 122, 587, 17 Ga. ®^|;J- «„ Jj^?, qw TIph AnrT^^^ App. 713; Weatherby v. State, 78 S. ^- ^*,t t^^t^vf 'Is S P Pqt^^S On ^\f^\f^^-^^h'''?c A .... APP ll4;''colfv'-S?ate?yi.^B: .2 wolfork V. State (Ga. App.) 103 ^^ ^g ^a. App. 112 ; Butler v. State, *• ^- '^^- 88 S. E. 593, 17 Ga. App. 769; An- sa Reddiek v. State, 74 S. E. 901, 11 drews v. State, 88 S. E. 194, 145 Ga Ga. App. 150; Love v. State, 72 S. B. 14; Martin v. State, 87 S. B. 715, 17 433, 9 Ga. App. 874. Ga. App. 516 ; Harvey v. State, 70 S 5*Middleton v. State, 66 S. E. 22, E. 141, 8 Ga. App. 660; Weaver v. 7 Ga. App. 1. State, 69 S. B. 488, 185 Ga. 817 ; White 5 Ga. Amason v. State, 99 S. E. v. State, 60 S. E. 803, 4 Ga. App. 72. 631, 23 Ga. App. 784; Reynolds v. Tenn. Webb v. State, 203 S. W. State, 98 S. E. 246, 28 Ga. App. 369 ; 955, 140 Tenn. 205. Leonard v. State, 86 S. E. 463, 17 Ga. ss Davis v. State, 100 S. E. 50, 24 App. 267 ; Allen v. State, 80 S. E. Ga. App. 35 ; Amason v. State, 99 S. § 231 INSTRUCTIONS TO JURIES 446 and in some jurisdictions a charge specifically upon circumstantial evidence may not be necessary, in view of other instructions given covering every material element in the case.^ Thus an in- struction presenting to the jury in concrete form all possible hy- potheses that are favorable to the defendant, and telling them that if they believe any one of them he should be acquitted, is a sufficient charge on circumstantial evidence.*' An instruction on circumstantial evidence is not erroneous merely because it does not follow approved forms.**- Unques- tionably, however, it is the safer and better practice, where the trial court undertakes to declare the law on circumstantial evi- dence, to follow forms which have been frequently approved by the court of last resort.®^ It is an unnecessary and dangerous thing for courts, in charg- ing upon the law of circumstantial evidence, to give lengthy and prolix instructions attempting to explain the law applicable to this character of evidence.** A charge which follows the languageH of the statute will ordinarily be sufficient.** Where the court gives the usual stereotyped charge on circumstantial evidence, it is not essential for it to inform the jury that the state relies on such evidence ; *® but, where all the evidence is circumstantial, it is error to instruct in such a way as to coi^vey the impression that there is direct evidence against the defendant.** Where the court correctly instructs the jury with respect to the force and effect of circumstantial evidence, it is clearly not required to en- E. 631, 23 Ga. App. 784 ; CofCman v. 96 S. W. 37, 50 Tex. Cr. R. 266 ; Pen- State, 165 S. W. 939, 73 Tex. Cr. E. nington v. State (Tex. Cr. App.) 48 S. 295 ; Rye v. State, 8 Tex. App. 153. W. 507. 5 3 State V. Neville, 72 S. E. 798, 157 Compare Anderson v. State, 213 S. N. C. 591; Brown v. State, 126 P. W. 639, 85 Tex. Cr. R. 411. 263, 7 Okl. Cr. 678 ; State v. Overson, Rule where usual charge on cir- 83 P. 557, 30 Utah, 22, 8 Ann. Cas. 794. cumstantial evidence refused. eo Griffin v. State, 101 S. E. 767, 24 Where the evidence in a prosecution Ga. App. 656 ; Davis v. State, 100 S. for violating the local option law was E. 50, 24 Ga. App. 35; Reynolds v. of a circumstantial nature, a charge State, 98 S. B. 246, 23 Ga. App. '869. by the court beginning that "the state 61 Galloway v. State, 70 S. W. 211, relies to a certain extent upon circum- 44 Tex. Cr. E. 230. stantial evidence" where the usual 2 State V. Salmon, 115 S. W. 1106, charge on this phase of the law was 216 Mo. 466; Mclver v. State (Tex asked by defendant and refused, is an Cr. App.) 60 S. W. 50. improper limitation, and does not ex- 63 Harris v. State, 137 P. 365, 10 plain how or how far the state relies Okl. Cr. 417. on circumstantial evidence. Trinkle 64 McDonald v. State, 94 S. B. 262, v. State, 105 S. W. 201, 52 Tex Cr R 21 Ga. App. 125. 42. 6= Plagg v. State, 153 S. W. 852, 69 oo Martin v. State, 74 S. E 306 10 Tex. Cr. R. 107 ; Henderson v. State, Ga. App. 798. 447 INSTRUCTIONS ON CIRCUMSTANTIAL EVIDENCE §232 join caution upon the jury in the matter of applying such evi- dence.*'' § 232. Contrasting direct and circumstantial evidence Subject to the rule against invading the province of the jury, which in some jurisdictions may render such an instruction er- roneous,®* it is proper, where the evidence is both direct and cir- cumstantial, to define each class of evidence and explain the dif- ference between them,** and the court may properly instruct, when accompanied by appropriate explanations, that there is nothing in the nature of circumstantial evidence that renders it any less reliable than other classes of evidence,"* that there is no practical 6 7 People V. Shuler, 28 Cal. 490; Mmniard v. Commonwealth, 164 S. W. 804, 158 Ky. 210 ; Brady v. Common- wealth, 11 Bush (Ky.) 282; State v. Le Blanc, 41 So. 105, 116 La. 822. 6 8 Horton -v. State (Tex. App.) 19 S. W. 899; Alonzo v. State, 15 Tex. App. 378, 49 Am. Rep. 207. Harmless error. The error, it any, in a charge that a conviction may be had on circumstantial as well as direct evidence, on the ground that it Is on the weight of the evidence, does not require a reversal, where the charge is followed, and in direct con- nection therewith, by the statement that, to justify a conviction on cir- cumstantial evidence, each fact neces- sary to establish guUt must be proved beyond a reasonable doubt, and that all the facts must be considered with each other and lead on the whole to a conclusion of guilt. Roberts v. State, 129 S. W. 611, 60 Tex. Cr. B. 20. 6 9 Joiner v. State, 31 S. B. 556, 105 Ga. 646. 70 People v. Urquidas, 96 Cal. 239, 31 P. 52; People v. Morrow, 60 Cal. 142. Instructions held proper within rnle. On prosecution for the larceny of a watch, on evidence that defend- ant was in a position to take the watch, and that no other person was in that position, the following charge is not erroneous: "Circumstantial evidence cannot very well lie. It Is quite as safe for a jury to convict on circumstantial evidence, when a prop- er case is given, as it is on direct, positive proof. The direct, positive proof may be false; the circumstances cannot be false." People v. Davis, 64 Hun, 636, 19 N. T. S. 781. On a trial for murder, an instruction that "strong circumstantial evidence is often the most satisfactory of any from which to draw the conclusion of guilt," followed with the explanation that witnesses who testify to a direct fact may be guilty of perjury, while "circumstances will not lie," is not ob- jectionable, in telling the jury that circumstantial evidence is. better than^ any other. State v. Moelchen, 53' Iowa, 310, 5 N. W. 186. Where the evidence was such as to require in- structions on circumstantial evidence, it was not error for the court to state that great jurists have pronounced it "of a nature equally satisfactory with positive evidence, and less liable to proceed from perjury." State v. Ward, 61 Vt. 153, 17 A. 483. Telling jury that as many wrong- ful verdicts have been based on direct evidence as on circnmstan- tial evidence. It Is not error for the court to instruct the jury that certain cases read to them by defend- ant's counsel, in which innocent per- sons had been convicted on circum- stantial evidence, "are extreme cases, and probably very seldom occur," and that, "if. much search be made, it might be found that a greater number of cases could be cited wherein im- proper convictions have been had from direct, positive evidence, through in- attention or perjury of witnesses." State V. McKiernan, 17 Nev. 224, 30 P. 831. Where on a trial for murder, in which the evidence was all circum- stantial, the jury were Instructed that § 232 INSTRUCTIONS TO JUEIBS 448 difference between circumstantial and direct evidence,'* that no greater degree of merital conviction is required to find a verdict on circumstantial evidence than in the case of direct evidence,'* and that, if circumstantial evidence is of such ,a character as to exclude every reasonable hypothesis other than that of the de- fendant's guilt, it is entitled to the same weight as direct evi- dence." It is accordingly proper to charge that the guilt of an defendant could not be convicted if there was any reasonable doubt of his guilt; that circumstantial evidence must be absolutely inconsistent with his innocence ; that they were to de- termine the weight and character of the evidence, and must not suppose that the court had any opinion on the subject; that the responsibility for the verdict was theirs, and that they were not to be governed by anything said by the court except as to the rules of law applicable to the case, it was held that it was not error for the court to say, in giving the case to the jury, that circumstantial evidence was just as good as any other if it satis- fied the jury beyond a reasonable doubt of the guilt of accused; that just as many eases of wrongful ver- dicts, and, according to the books, more, resulted from direct than from circumstantial evidence; and that in his practice of 40 years in the crimi- nal courts he found that most of those cases of circumstantial evidence are found In romances and dramas, in which the writer weaves a set of cir- cumstances around the hero, having an explanation in mind, and, either just before he is condemned, or just after, the explanation arrives, and the hero goes off the stage in a blaze of glory — since the charge was fuU, fair, clear, and correctly stated the law. People V. Neufeld, 58 N. E. T86, 165 N. T. 43. 71 State V. Rome, 64 Gonn. 329, 30 A. 57 ; Territory v. Egan, 3 Dak. 119, 13 N. W. 568. Necessary qnaliflcation. A charge that "the law makes no distinction between circumstantial and positive evidence," without any qualifying in- struction as to the care to be used in considering circumstantial evidence, Is erroneous because misleading. Burt v. State, 72 Miss. 408, 16 So. 342, 48 Am. St. Rep. 563. 7 2 Cargile v. State, 70 S. E. 873, 138 Ga. 55. 73 Reynolds v. State, 46 N. E. 31, 147 Ind. 3 ; Longley v. Commonwealth, 37 S. E. 839, 99 Va. 807. InLStraction to give same vreiglit to circumstantial evidence as to direct. An instruction defining both direct and circumstantial evidence, and stating that the circumstantial evidence which had been received was competent, and that "If it is of such a character as to exclude every rea- sonable supposition, other than that of defendant's guilt, then and in that event it should be given the same weight as direct evidence," was not an unconditional direction to the jury to give the same Weight to circum- stantial evidence as to direct evidence. Davis V. State, 70 N. W. 984, 51 Neb. 301. Illnstrations of proper instruc- tions as to relative value of cir- cumstantial and direct evidence. An instruction that "where the evi- dence is entirely circumstantial, yet is not only consistent with the guilt of the defendant, but inconsistent with any other rational conclusion, the law makes it the duty of the jury to con- vict, notwithstanding such evidence may not be as satisfactory to their minds as the direct testimony of credi- ble eye-witnesses would have been," is correct. People v. Daniels, 34 P. 233, 4 Oal. TJnrep. 248, following Same v.. Cronin, 34 Cal. 191. In a criminal case, an instruction : "Evidence is of two kinds, direct and circumstantial. 'Direct evidence' is where a witness testifies of his own personal knowl- edge of the main fact, or facts, to be proven. 'Circumstantial evidence' la proof of certain facts and circum- stances In a certain case, from which the jury may Infer other and connect ed facts, which usually and reason- ably follow according to the common 449 INSTEUCTIONS ON CIRCUMSTANTIAL EVIDENCE 233 accused may be established by circumstantial evidence alone,''* and the accused is not entitled to a charge which takes as a stand- ard for weighing the effect of circumstantial evidence the testis, mony of credible eyewitnesses,'"^ nor to a charge that a conviction should not be had on circumstantial evidence when direct evidence is obtainable.''* An instruction that, in order to warrant a verdict of guilty on circumstantial evidence alone, it must be such as to produce "nearly" the same degree of certainty as direct evidence has been held not improper in some jurisdictions,'''' or at least not re- versible error,''* but in other jurisdictions it is considered erro- neous.''* § 233. Degree of certainty required An instruction on circumstantial evidence should define it and state the rule governing its effect,*" and should include a state- ment that, in order to warrant a conviction of the defendant, the jury must be satisfied of his guilt beyond a reasonable doubt to experience of mankind. Crime may be proven by circumstantial evidence, as well as by direct testimony of eye- witnesses, but the facts and circum- stances in evidence should be con- sistent with each other and with the guUt of the defendants, and inconsist- ent with any reasonable theory of their innocence" — sufficiently charg- ed on circumstantial evidence. State V. Hillman, 127 S. W. 102, 142 Mo. App. 510. An instruction that circum- stantial evidence should be regarded in all cases, and was many times quite as conclusive as direct evidence, and when it was strong and satisfactory the jury should give it fair weight, and, if it convinces the guarded judg- ment, the jury should base a convic- tion thereon, but that the jury should make its reasonable inferences from circumstances proved, and, if they had a reasonable doubt as to defendant's guilt, should acquit, was not prejudi- cially misleading. State v. Sloan, 89 ■P. 829, 35 Mont. 367. On a trial for homicide, an instruction as to the relative value of circumstantial and positive evidence, stating that it de- pends on- facts and circumstances in one instance and on the reliability of the witness in the other, was not er- INST.TO JUEIES— 29 roneous, as leading the jury to con- clude that in considering circumstan- tial evidence the reliability of the witness who testifies to the facts and circumstances from which the fact in issue is to be inferred is not to be con- sidered of so much importance as when he gives direct and positive evi- dence of the fact in issue. State v. Tedder, 65 S. E. 449, 83 S. C. 437. 74Beeler v. People, 146 P. 762, 58 Colo. 451; Williams v. State, 75 So. 785, 73 Fla. 1198; People v. Cotton, 95 N. E. 283, 250 111. 338; People v. Darr ; 179 111. App. 130, judgment af- firmed 104 N. E. 389, 262 111. 202; Epps V. State, 1 N. E. 491, 102 Ind. 539. 7B State V. iCarson, 115 N. C. 743, 20 S. E. 384; State v. Allen, 103 N. C. 433, 9 S. E. 626 ; Rea v. State, 8 Lea (Tenn.) 356. t« Webb V. State, 65 So. 845, 11 Ala. App. 123. 77 People V. Cronin, 34 Cal. 191. 7 8 People V. Eckman, 72 Cal. 582, 14 P. 359. 7 8 State V. Dotson, 67 P. 938, 26 Mont. 305. 80 state V. Brady (Iowa) 91 N. W. 801. §233 INSTRUCTIONS TO JUEIES 450 the exclusion of every other reasonable hypothesis.*'^ Such an in- struction should not permit the jury to act upon probabilities.** The essential elements of such an instruction are comprised in a charge to the effect that, to justify a conviction on circumstan- tial evidence, each fact necessary to the conclusion of guilt must be proven by competent evidence beyond a reasonable doubt, that all the facts so necessary must be consistent with each other and with the main fact, that the circumstances taken together must be of a conclusive nature, producing a reasonable and moral certainty that the accused and no other person committed the offense charged, that no other conclusion but that of the guilt of the ac- cused must fairly and reasonably grow out of the evidence, and that the facts must be absolutely incompatible with his innocence, and incapable of any other explanation on any other reasonable hypothesis than that of guilt.** The omission from the above charge on circumstantial evidence of the phrase "and no other 81 Ga. Hill V. State, 66 S. E. 802, 7 Ga. App. 336 ; Holt v. State, 62 S. E. 992, 5 Ga. App. 184 ; Lett v. State, 59 S. E. 85, 2 Ga. App. 829; Glaze v. State, 58 S. E. 1126, 2 Ga. App. 704 ; Baker v. State, 58 S. E. 1114, 2 Ga. App. 662; Harwell v. State, 58 S. E. 1111, 2 Ga. App. 613. Mont. State v. Allen, 87 P. 177, 34 Mont. 403. Okl. Matthews v. State, 130 P. 125, 8 Okl. Or. 676. Tex. Reynolds v. State, 217 S. W. 151, 86 Tex. Or. R. 453. 82 People V. O'Brien, 62 P. 297, 130 Cal. 1 ; People v. Dilwood, 94 Cal. 89, 29 P. 420. 83 Kan. State V. Ward, 192 P. 836, 107 Kan. 498. > Tex. McGee v. State, 155 S. W. 246, 69 Tex. Or. R. 580 ; Reeseman v. State, 128 S. W. 1126, 59 Tex. Or. R. 430; Porch v. State, 99 S. W. 102, 50 Tex. Cr. R. 335; Crow v. State, 39 S. W. 574, 37 Tex. Cr. R. 295 ; Book- ser V. State, 26 Tex. App. 593, 10 S. W. 219. Wis. Colbert v. State, 104 N. W. 61, 125 Wis. 423. Circumstances to be consistent with each other. In a prosecution for murder, based wholly on circum- stantial evidence, it is error to refuse a charge that guilt must be proved by facts and circumstances, all of which are consistent with each other and with the guilt of the accused, and absolutely inconsistent with any rea- sonable theory of innocence. State v. Moxley, 102 Mo. 374, 14 S. W. 969, 15 S. W. 556. Other illnstrations of sufficient instructions. Where the prosecu- tion relies for conviction on evidence partly direct and partly circumstan- tial, an instruction on circumstantial evidence which defines its nature and points out the degree of certainty re- quired as compared with direct evi- dence, and charges that it is legal and competent, and justifies conviction if incompatible with innocence and in- capable of explanation on any other hypothesis than that of guilt, is suffi- cient. Stockbridge v. Territory, 79 P. 753, 15 Okl. 167. A charge on cir- cumstantial . evidence is sufficient where, besides giving a general defini- tion of such evidence, the jury are told that, if they entertain a reason- able doubt as to any fact or element necessary to constitute the offense, they must acquit ; and that, to author- ize conviction on such evidence, each . circumstance should not be only con- sistent with guilt, but inconsistent with any other rational conclusion or reasonable hypothesis, and sjich as to leave no reasonable doubt of guilt. State V. Asbell, 46 P. 770, 57 Kan. 398. On a prosecution for adultery, the jui-y are sufficiently warned 451 INSTRUCTIONS ON CIRCUMSTANTIAL EVIDENCE §233 person" will not render it erroneous,** nor will the omission of the clause, requiring that facts relied on to justify a. conviction on cir- cumstantial evidence must be consistent with each other, be cause for reversal, in the absence of a request to so instruct.*® Since it is not necessary, in order to convict, that the guilt of the accused should be established beyond all possible doubt,*" the words "absolutely incompatible" used in the above instruction are the subject of criticism in some jurisdictions, and when con- tained in a requested instruction will be ground for refusing it.*'' against being misled by a train of cir- cumstantial evidence when the court charges that the circumstances offer- ed by the state must be such as neces- sarily lead the mind of a reasonable, just, and prudent man to the conclu- sion of guilt, and that they must ex- clude all reasonable doubt, and he further narrates the facts relied on by the state, which facts, if true, could leave no reasonable doubt of guilt, and then leaves to the jury the ques- tion of fact. State v. Hart, 94 Iowa, 749, 64 N. W. 278. 84 Bosley v. State, 153 S. W. 878, 69 Tex. Cr. R. 100 ; Moseley v. State, 127 S. W. 178, 59 Tex. Br. R. 90 ; Ramirez V. State, 66 S. W. 1101, 43 Tex. Cr. R. 455; Bennett v. State, 48 S. W. 61, 39 Tex. Cr. R, 639. Instrnctions not improper ivitli- in rule. An instruction on circum- stantial evidence was not erroneous because it did not tell the jury that, in order to convict, they must find that defendant "alone" committed the crime. Bell v. State (Tex. Cr. App.) 71 S. W. 24. Where, in a prosecution for burglary, the court charged that the circumstances, taken together, must be of a conclusive nature, lead- ing to a satisfactory conclusion, and producing in effect a reasonable and moral certainty that accused, or ac- cused acting with some other person, committed the offense charged, the fact that the charge on circumstantial evidence did not require the jury to find that the accused, and no other person, committed the crime, was im- material, it being proven that accused and his codefendant were acting to- gether as principals in the commission of the offense. Boersh v. State (Tex. Cr. App.) 62 S. W. 1060. 85 State v. Wolfl&y, 93 P. 337, 75 Kan. 406, 11 L. R. A. (N. S.) 87, 12 Ann. Cas. 412, denying rehearing 89 P. 1046, 75 Kan. 406, 11 L. R. A. (N. S.) 87, 12 Ann. Cas. 412. 86 Lawson v. State, 76 So. 411, 16 Ala. App. 174; People v. RUey, 3 N. Y. Cr. R. 374. Absolute certainty not required. On a trial for murder, an instruction that absolute certainty is never re- quired In the trial of criminal cases, and though in the application of cir- cumstantial evidence the utmost cau- tion should be used, yet it may rise so high in the scale of belief as to gene- rate full conviction, and produce "the highest degree of moral certainty," and when, after due caution, this re- sult is reached, the jury are authoriz- ed to act on it and, if satisfied "to the exclusion of every reasonable doubt" of defendant's guilt, they might so find, is not open to objection. Gib- son V. State, 23 So. 582, 76 Miss. 136. 87 State V. Rover, 13 Nev. 17; Horn V. State, 73 P. 705, 12 Wyo. 80. Illustrations of instrnctions held to require greater degree of cer- tainty than the law demands. A charge that, "to justify the inference of legal guilt from circumstantial evi- dence, the existence of inculpatory facts must be established absolutely and to a demonstration incompatible with the innocence of the accused." People V. Bellamy, 109 Cal. 610, 42 P. 236. An instruction that "the hy- pothesis contended for must be estab- lished to an absolute moral certainty, to the entire exclusion of any other hypothesis being true, or the jury must find the defendant not guilty." State V. Glass, 5 Or. 73. An instruc- tion that, to obtain a conviction on circumstantial evidence alone, the peo- ple must show facts and circum- §234 INSTRUeriONS TO JURIES 452 It is proper to refuse a charge that each and every circumstance must be consistent with the other and. with the whole chain of circumstances, and each and all must point to defendant exclu- sively as the guilty agent, since the circumstances may point to two persons as the guilty parties, defendant being one, or one or more circumstances may have no reference whatever to the defendant or the crime charged, in which case the jury will be justified in not considering it.*® § 234. Requirement that circumstances be consistent with hy- pothesis of guilt and inconsistent with that of innocence Where the evidence is circumstantial, it is proper to instruct that to warrant a conviction of the defendant the evidence must not only be consistent with the hypothesis of his guilt, but incon- sistent with every other rational hypothesis,*® and the general rule is that such an instruction should be given on request.** Instruc- stances absolutely inconsistent, on any reasonable hypothesis, with the inno- cence of the accused, and incapable of explanation on any other theory than that of his guilt. Carlton v. People, 150 111. 181, 37 N. B. 244, 41 Am. St. Rep. 346. An instruction, in a prose- cution for murder, that, to convict for a criminal ofEense on circumstantial evidence, the state must show such facts and circumstances as are abso- lutely incompatible upon any reason- able hypothesis with defendant's in- nocence, and incompatible of explana- tion except by defendant's guUt. State V. Caseday, 115 P. 287, 58 Or. 429. An instruction that, "in cases of alleged- murder proved alone by circumstances. If those cl:?cumstances are not conclusive as to the guilt of the defendant, there ought to be a motive, and that a strong one, proved, which might have impelled the de- fendant to ^commit the act, and, if such proof is not made, the jury ought to acquit the defendant," is properly refused, since the jury might under- stand that, if the evidence did not show the defendant's guilt with abso- lute certainty, they must acctuit him in absence of proof of a motive. Sumner v. State, 5 Blackf. (Ind.) 579, 36 Am. Dec. 561. An instruction that the evidence must point unerringly to the guilt of defendant and must be irreconcil- able with innocence is properly refus- ed as requiring absolute certainty. Gardner v. State (Wyo.) 196 P. 750. 8 8 Timmerman v. Territory, 3 Wash. T. 445, 17 P. 624. 89 Ala. Kiley v. State, 88 Ala. 188, 7 So. 104 ; Id., 88 Ala. 193, 7 So. 149. Cal. People V. Muhly, 114 P. 1017, 15 Cal. App. 416.. Ga. Callaway v. State (Sup.) 106 S. B. 577. Tex. Gaines v. State (Cr. App.) 77 S. W. 10. Wis. Spick V. State, 121 N. W. 664, 140 Wis. 104. »o u. S. (C. C. A. Va.) Garst v. United States, 180 F. 839, 103 C. C. A. 469. Ala. Bowen v. State, 37 So. 238, 140 Ala. 65; Brown v. State, 108 Ala. 18, 18 So. 811. Ga. Bush V. State, 97 S. E. 554, 23 Ga. App. 126; Harris v. State, 90 S. E. 370, 18 Ga. App. 710; Leonard v. State, 86 S. E. 463, 17 Ga. App. 267 ; Harvey v. State, 70 S. B. 141, 8 Ga. App. 660. Ind. Robinson v. State, 124 N. E. 489, 188 Ind. 467; Wantland v. State, 145 Ind. 38, 43 N. E. 931. Iowa. State V. Brazzell, 150 N. W. 688, 168 Iowa, 480. Kan. State v. Andrews, 61 P. 808, 62 Kan. 207; Home v. State, 1 Kan. 42, 81 Am. Dec. 499. Miss. Simmons v. State, 64 So. 721, 106 Miss. 732, suggestion of er- ror overruled 65 So. 511, 107 Miss. 453 INSTRUCTIONS ON CIRCUMSTANTIAL EVIDENCE §234 tions should not be so framed as to make it possible for the jury to infer that they are only authorized to acquit in the event that the 463 ; Smith v. State, 57 So. 913, 101 Miss. 283, reversing judgment on sug- gestion of error 57 So. 368 ; Irving v. State, 56 So. 377. 100 Miss. 208 ; Pope V. State, 56 Miss. 790. Mo. State V. David, 33 S. W. 28, 131 Mo. 380; State v. Woolard, 111 Mo. 248, 20 S. W. 27 ; State v. Mox- ley, 102 Mo. 374, 14 S. W. 969, 15 S. W. 556; State v. Sasseen, 75 Mo. App. 197. S. C. State V. Hudson, 44 S. B. 968, 66 S. C. 394, 97 Ain. St. Rep. 768. Tenn. Turner v. State, 4 .Lea, 206; Lawless v. State, 4 Lea, 173. Tex. Smitli v. State, 35 Tex. Or. R. 618, 33 S. "W. 339, 34 S. W. 960; Harris v. State, 34 Tex. Cr. R. 494, 31 S. W. 388 ; Jones v. State, 34 Tex. Cr. R. 490, 30 S. W. 1059, 31 S. W. 664 ; Smith v. State, 8 Tex. App. 141 ; Waliser v. State, 6 Tex. App. 576; Black V. State, 1 Tex. App. 368. Inatrnctions held insufficient 'Within mle. Where the only proof of guilt is circumstantial, it is error to submit the case with no further in- struction as to the quantum of evi- dence necessary than that "the proof of guilt must be inconsistent with any other rational supposition." State v. Brady, 97 N. W. 62, 121 Iowa, 561, 12 L. R. A. (N. S.) 199. An instruction that circumstantial evidence has been received in every age of the common law, and when it arises so high in the scale of belief as to generate in the minds, of the jury full conviction of defendant's guilt beyond a reasonable doubt, then they are authorized to convict. Permenter v. State, 54 So. 949, 99 Miss. 453, Ann. Cas. 1913E, 426. An instruction that, "before you can convict on circumstantial evi- dence, it must be of such character and weight as to exclude all reason- able hypothesis of defendant's inno- cence," is too meager, and fails to state the rule In such a way as to make it a safe guide for the jury. State V. Taylor, 111 Mo. 538, 20 S. W. 239. InBtrnctions held improperly refused. Where the evidence was circumstantial, an Instruction that, to convict, the circumstances should be of a conclusive nature, producing a reasonable and moral certainty that the accused, and no one else, commit- ted the ofCense charged ; and that, to warrant a conviction upon circum- stantial evidence alone, such circum- stances must be shown as are consist- ent with the guilt of the party charg- ed, and cannot, upon any reasonable theory, be true, and the party charged be innocent ; and, if all the facts re- lied on to secure a conviction can be reasonably accounted for consistently with the Innocence of the defendant, then the jury should acquit — was Im- properly refused where other Instruc- tions given did not define the nature of the circumstances relied . on to show guilt with as much particulari- ty. Marzen v. People, 50 N. E. 249. 173 lU. 43. Instructions held sufficient within rule. A charge on circum- stantial evidence, in a prosecution for perjury, that "the facts and circum- stances proved, if any, should not only be consistent with the falsity of said alleged false statement, but in- consistent with any other reasonable hypothesis or conclusion than that of its falsity," states the legal requisites of such evidence the same as though it required the evidence to exclude "every reasonable hypothesis consist- ent with the innocence of defendant." McCoy V. State (Tex. Cr. App.) 73 S. W. 1057. A charge that, to warrant conviction on circumstantial evidence the proved facts must not only be consistent fwith the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of accused's guilt, and that In weighing such testimony It must be consistent with accused's guilt, must exclude every other reasonable hypothesis save that of his guilt and, if it is con- sistent with accused's guilt, a convic- tion cannot be had if there be any other reasonable hypothesis upon which the testimony can be reconciled and explained, was not erroneous as § 234 INSTRUCTIONS TO JURIES 454 proved essential facts and circumstances are equally as consistent failing to charge the hypothesis of in- nocence, and to charge that if the -proved facts were consistent with in- nocence accused would be entitled to an acquittal. Oargile v. State, 70 S. E, 873, 136 Ga. 55. Where the hy- pothesis arising from circumstantial evidence consistent with Innocence was fully and fairly stated, and the jury instructed that if satisfied that the hypothesis was true, or if they had a reasonahle doubt as to its truth, defendant should be acquitted, there was a substantial compliance with rule relating to instruction or circum- stantial evidence. Mangum v. State, 63 S. E. 543, 5 Ga. App. 445. An in- struction that it is a rule of evidence that, to warrant a conviction on cir- cumstantial evidence, the facts must not only be consistent with guilt, but exclude every other reasonable hy- pothesis, is not erroneous because the court did not also charge that, if there was any other inference of in- nocence, the jury should acquit. Toomer v. State, 60 S. E. 198, 130 Ga. 63. An instruction that, if the jury believe that the evidence is consistent with the guilt of defendant and in- consistent with his innocence, and es- tablishes his guilt to the exclusion of every other reasonable hypothesis, he should be found guilty. Elliot v. State, 74 S. E. 691, 138 Ga. 23. A charge that to warrant conviction on circumstantial evidence the proved facts must not only be consistent with the hypothesis of guilt, but must ex- clude every other reasonable hypothe- sis, and that each separate fact or link from which deduction of guilt is drawn must be clearly proved, and that the jury should then determine whether remaining • circumstances clearly proved are consistent with guilt and inconsistent with any other reasonable hypothesis than that of guilt, and that all facts and circum- stances necessary to show commission of crime and to connect defendant therewith must be proved. Gravett v. State, 102 S. B. 426, 150 Ga. 74. An instruction that, in order to warrant a conviction on circumstantial evi- dence, each fact necessary for the conclusion sought to be established must be proved by competent evidence beyond a reasonable doubt and that all the facts necessary to the conclu- sion of guilt must be consistent with each other and with the main fact sought to be proved, and the circum- stances, taken together, must be of a conclusive 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," was not erroneous for failure to directly charge that the testimony must exclude every reason- able hypothesis consistent with de- fendant's innocence. Henderson v. State, 96 S. W. 37, 50 Tex. Or. R. 266. An instruction that in order to con- vict on circumstantial evidence the circumstances should all concur to show that defendant committed the crime, and be inconsistent with any other rational conclusion, necessarily includes the thought that the circum- stances to warrant his conviction must be inconsistent with commission of the crime by another. State v. Whitbeck, 123 N. W. 982, 145 Iowa, 29. An instruction that it 'was not safe to convict on circumstantial evidence if the jury could draw from the cir- cumstances any other conclusion than the guilt of the accused, was not er- roneous on the" ground that the court should have charged that the jury must acquit in such event. State v. Langford, 55 S. E. 120, 74 S. C. 460. It is not error to charge that circum- stantial evidence is legal, and that tbe jury may convict on such evidence alone, but that to do so the circum- stances must not only be consistent with defendant's guilt, but inconsist- ent with every other reasonable hy- pothesis, and then to modify this statement by the further statement that this rule applies only when the conviction depends entirely on circum- stantial evidence, so that, if there Is any direct evidence, the rule does not apply. State v. Allen, 56 So. 655, 129 La. 733, Ann. Gas. 1913B, 454. An instruction that circumstantial evi- dence, if it convinces the mind of the 455 INSTRUCTIONS ON CIRCUMSTANTIAL BVIDENCB §234 with the innocence as with the guilt of the defendant."^ This rulje applies, although there is direct as well as circumstantial evidence in the case, since, where the court undertakes to charge on circumstan- tial evidence, it must do so fully and correctly.*^ It has been held error to refuse to charge that if the facts, no matter how strongly they may seem to show the guilt of the defendant, can be reconciled with the theory that another may have committed the crime alleged, he should be acquitted."* An instruction suffi- ciently complies with the above rule which tells the jury that, be- fore they can convict on circumstantial evidence alone, the facts and circumstances must all form a complete chain and all point to guilt and be irreconcilable with any reasonable theory of inno- cence.** ' So a charge is sufficient which states that circumstantial guilt of defendant beyond a reasona- ble doubt, is just as satisfactory evi- dence as any other evidence, and that, when one seeks to convict on circum- stantial evidence, the jury must be satisfied of defendant's guilt beyond a reasonable doubt, and the circum- stances must point to his guilt to the exclusion of any other reasonable hy- pothesis, is not error. State v. Jack- son, 46 S. B. 538, 68 S. C. 53. Where, on a trial for murder, the court charg- ed that, to warrant a conviction on circumstantial evidence, the facts proved must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hy- pothesis, and that if the theory of guilt and the theory of innocence were both consistent with the facts proven, the benefit of the doubt should be given to the defendant, and he should be acquitted, it was held that the charge was not erroneous as stating that accused was entitled to the benefit of the doubt only in case the theory of guilt and that of inno- cence were equally consistent with the facts proven, nor as stating that, to warrant an acquittal, the evidence must be consistent with innocence, while the burden was on the state to establish guilt to the exclusion of ev- ery other reasonable hypothesis. Mc- Naughton v. State, 71 S. B. 1038, 136 Ga. 600, writ of error dismissed 32 S. Ct. 532, 223 U. S. 744, 56 L. Ed. 639. Use of word "conclusion,'' in- stead of "hypothesis." Where a judge charged a jury that the guilt of the accused must be proved beyond all reasonable doubt, to the exclusion of every other conclusion, it was held that there was no error in using the word "conclusion" for "hypothesis"; that there was no legal difference be- tween the two words. State v. Wil- lingham, 33 La. Ann. 537. "Reasonable supposition." A charge in reference to circumstantial evidence "that the testimony must not only be consistent with the guilt of the person charged, but inconsist- ent with any other reasonable suppo- sition," though a slight departure from the words generally used, is not error of law. State v. Davenport, 38 S. C. 348, 17 S. E. 37. 91 Garst V. United States (U. S. C. C. A. Va.) 180 F. 339, 103 C. C. A. 469. 92 State V. Gray, 147 S. W. 510, 163 Mo. App. 696. 93 Gilmore v. State, 99 Ala. 154, 13 So. 536. Contra, see People v. Foley, 64 Mich. 148, 31 N. W. 94. 94 Mo. State v. Maggard, 157 S. W. 354, 250 Mo. 335; State v. Kebler, 128 S. W. 721, 228 Mo. 367 ; State v. Sharpless, 111 S. W. 69, 212 Mo. 176. Okl. Star v. State, 131 P. 542, 9 Okl. Or. 210. Tenn. Lancaster v. State, 91 Tenn. 267, 18 S. W. 777. Tex. Hampton v. State, 1 Tex. App. 652. "Ought" to be inconsistent with any rational theory of innocence. § 234 INSTRUCTIONS TO JUEISa 456 evidence is legal and competent in criminal cases, and if it is of such a character as to exclude every reasonable hypothesis other than that the defendant is guilty it is sufficient to warrant a con- viction.*^ Under the above rule it is proper to refuse an instruc- tion which requires that the jury be convinced, in order to bring in a verdict of guilty, that there is no other possible hypothesis except that of the guilt of the defendant,®* since the hypothesis other than that of guilt, which the evidence must exclude to war- rant a conviction, must be a reasonable one.®' Under the rule that, where an instruction is correct as given, although not as explicit as desired, error cannot be predicated thereon, in absence of a request for further instructions, the rule is, in some jurisdictions, that where the court has charged that the burden is on the state to prove to the satisfaction of the jury beyond a reasonable doubt every material allegation of the indict- ment, it need not instruct, of its own motion, that the jury cannot convict unless the circumstances exclude every reasonable hypoth- esis of innocence,** and in some jurisdictions it need not in such a case, so instruct, even on request.** § 235. Proof of each circumstance or each essential fact Where the- evidence is purely circumstantial, the rule in most jurisdictions is that the court in a criminal case should instruct that every material and necessary fact upon which a conviction depends must be proven by competent evidence beyond a reason- able doubt, and that, if any of the facts or circumstances estab- lished be absolutely inconsistent with the hypothesis of guilt, that An instruction that, when a criminal v. State, 86 Ala. 595, 6 So. 96 ; Mose charge is to be proved on circumstan- v. State, 36 Ala. 2H. tial evidence, the proof ought to be Cal. People v. Strong, 30 Cal. 151. not only consistent with the prison- Mo. State v. Schoenwald, 31 Mo. er's guilt, but inconsistent with any 147. other rational conclusion, is not er- »7 Ala. Baldwin v. State, 111 Ala. roneous in failing to make that con- 11, 20 So. 528; Horn v. State, 102 Ala. dition mandatory; the word "ought" 144, 15 So.' 278; Little v. State, 89 meaning to be bound in duty or by Ala. 99, 8 So. 82. moral obligation, to be necessary or Ark. Griffin v. State, 216 S. W. becoming, and to be synonymous with 34, 141 Ark. 43 ; Bost v. State, 215 S, "should." State v. Blaine, 124 P. 516, W. 615, 140 Ark. 254. 45 Mont. 482. Miss. Kendrick v. State, 55 Miss. » 6 Cunningham v. State, 77 N. W. 436. 60, 56 Neb. 691. os state v. House, 78 N. W. 859, 108 6 Ala. Strickland v. State, 44 So. Iowa, 68; Tatum v. State, 85 N. W. 90, 151 Ala. 31; Garrett v. State, 97 40, ^1 Neb. 229. Ala. 18, 14 So. 327; Culver v. State, »8 Jones v. State, 61 Ark. 88, 32 S. 99 Ala. 193, 13 So. 527; Blackburn W. 81. 457 INSTRUCTIONS ON CIRCUMSTANTIAL EVIDENCB §235 hypothesis cannot be true/ the omission to so charge not being supplied by the ordinary instruction on the doctrine of reasonable doubt/ and an instruction which authorizes a conviction, although a fact essential to guilt is not proven beyond a reasonable doubt. IS erroneous. 3 1 V. S. (C. C. La.) United States V. Wright, 16 F. 112. Ala, Jones v. State, 107 Ala. 93, 18 So. 237. Iowa. State V. Harmann, 112 N. W. 632, 135 Iowa, 167. Ky. HoUoway v. Commonwealtli, 11 Bush, 344. Micb. People v. McArron, 79 N. "W. 944, 121 Mich. 1 ; People v. Stew- art, 42 N. W. 662, 75 Mich. 21; People V. Aiken, 66 Mich. 460, 33 N. W. 821, 11 Am. St. Rep. 512. Wis. Koliock V, State, 88 "Wis. 663, 60 N. W. 817. Instructions held insufficient ivithin rule. Where, on a pro.secu- tion for murder the evidence is cir- cumstantial, the refusal of an instruc- tion to the effect that if any one fact necessary to a conclusion of guilt is wholly inconsistent with the hypothe- sis of guilt, it breaks the chain of circumstantial evidence upon which the inference of guilt dejwnds, and that, however plausible or apparently conclusive all other circumstances may be, the charge must fail, is not excused by the giving of instructions declaring that, to justify a conviction upon circumstantial evidence, the cir- cumstances "must all be in harmony with the guilt of the accused"; that in such a case the jury must "be sat- isfied that all the circumstances prov- ed are consistent with the defendant having committed the act," and "must also be satisfied that the facts are such as to be inconsistent with any other rational conclusion than that defendant is the guilty person." Dunn V. State, 78 N. E. 198, 166 Ind. 694. Instructions held sufficient rwithin rule. Refusal of charge that, when circumstantial evidence Is relied on, "every link in the chain of evidence must be proved beyond a reasonable doubt," was not ground for reversing a conviction, where the court charged that the state relied "upon both direct and circumstantial evidence, and, before the state can rely upon circumstantial evidence, it is necessary for the state to establish every circumstantial fact upon which it relies beyond a reasonable doubt." State V. Fleming, 41 S. E. 549, 130 N. 0. 688. Effect of other instructions. It was unnecessary to give a requested instruction that each fact in the chain must be established beyond reasona- ble doubt, where the court had al- ready charged that the jury should acquit, if there was doubt as to one of the facts essential to establish guilt, and that to convict circumstan- tial evidence must be inconsistent with any other rational conclusion except guilt. People v. Hamilton (Cal. App.) 192 P. 467. State not required to establish each necessary fact beyond all doubt. On a prosecution for murder, where the evidence relied on by the state was circumstantial, it was prop- er to refuse to instruct that each link in the chain of circumstances should be established to the "entire satisfac- tion" of the jury. State v. Blyden- burgh (Iowa) 104 N. W. 1015. 2 People V. Eckert, 19 Cal. 603; Hunt V. State, 7 Tex. App. 212 ; Wal- lace V. State, 7 Tex. App. 570 ; Struck- man v. State, 7 Tex. App. 581; My- ers V. State, 7 Tex. App. 640. 3 Ark. Gill v. State, 59 Ark. 422, 27 S. W. 598. Colo. Graves v. People, 18 Colo. 170, 32 P. 63 ; Clare v. People, 9 Colo. 122, 10 P. 799. Iowa. State V. Cohen, 78 N. W. 857, 108 Iowa, 208, 75 Am. St. Rep. 213. Kan. State v. Furney, 21 P. 213, 41 Kan. 115, 13 Am. St. Rep. 262. Mont. State v. Gleim, 17 Mont. 17, 41 P. 998, 31 L.. R. A. 294, 52 Am. St. Rep. 655. § 235 INSTRUCTIONS TO JURIES 458 An instruction, however, should not authorize the jury to con- sider each essential fact separately in determining whether it has been proven beyond a reasonable doubt,* and in some jurisdic- tions there are decisions to the effect that the defendant in a crim- inal case is only entitled to an instruction as to the effect of a rea- sonable doubt after a consideration of all the evidence in the case.^ In Illinois it is proper to charge that, in order to convict, the jury need not be satisfied beyond a reasonable doubt of the existence of each link in the chain of circumstances relied on by the state, but it is sufficient if, taking the evidence altogether, the jury are satis- fied beyond a reasonable doubt that the defendant is guilty ; ® this N. D. State V. Johnson, 103 N. W. 565, 14 N. D. 288; State v. Young, 82 N. W. 420, 9 N. D. 165. Ohio. Adams v. State, 31 Ohio St. 462. Okl. Dossett V. United States, 3 Okl. 591, 41 P. 608. Wash. Leonard v. Territory, 7 P. 872, 2 Wash. T. 381. Instrnctions not improper with- in rule. In a prosecution for homi- cide, an instruction that it was imma- terial that the evidence against de- fendant was circumstantial, or made up of facts and circumstances sur- rounding the death and defendant's relation to deceased, provided only that the jury believed such facts and circumstances to be proved by the evidence beyond all reasonable doubt, and to be inconsistent with any other hypothesis than the guilt of defend- ant, was not erroneous for failure to require every "essential" fact to be proved beyond a reasonable doubt. State V. Lucas, 97 N. W. 1003, 122 Iowa, 141. Where the court charged the jury that "circumstantial evi- dence is the proof of certain facts and -circumstances in a given case from which the jury may infer other connected facts, which usually and reasonably follow, according to the common experience of mankind. * * * If, therefore, you believe from the. evidence that such facts and circum- stances have been proven as to satis- fy you, beyond a reasonable doubt, that the defendant * * * did will- fully * * • kill M., you are war- ranted in finding him guilty," it was held that the charge was not subject to the objection that it does not re- quire the circumstances from which the jury may infer other connected facts to be established beyond a rea- sonable doubt. State v. Avery, 113 Mo. 475, 21 S. W. 193. - Rule nrhere evidence not entire- ly circumstantial. Where, In a prosecution for homicide, the evi- dence was not entirely circumstantial, but the fact of death, together with defendant's immefliate relations with deceased and the circumstances sur- rounding decedent's death were prov- en by positive testimony, an instruc- tion on circumstantial evidence that it was not necessary that the jury should he satisfied beyond a reasona- ble doubt of each link in the chain of circumstances relied on to establish defendant's guilt, but that it was suf- ficient If, taking the evidence all to- gether, the jury was satisfied beyond all reasonable doubt that defendant was guilty, was not prejudicial, as misleading in the use of the word "link" in the chain of circumstances, etc. State v. Lucas, 97 N. W. 1003, 122 Iowa, 141. * State V. Cohen, 78 N. W. 857, 108 Iowa, 208, 75 Am. St. Rep. 213. 5 Oarr v. State, 99 S. W. 831, 81 Ark. 589; Wise v. State, 2 Kan. 419, 85 Am. Dec. 595; State v. Wells, 111 Mo. 533, 20 S. W. 232 ; State v. Chris- tian, 66 Mo. 138; State v. Schoen- wald, 31 Mo. 147. « Gott V. People, 58 N. B. 293, 187 111. 249; Keating v. People, 160 111. 480, 43 N. E. 724; Siebert v. People, 143 111. 571, 32 N. E. 431; Davis v. People, 114 111. 86, 29 N. E. 192; 459 INSTRUCTIONS ON CIRCUMSTANTIAL .EVIDENCE §235 not being considered as likely to mislead the jury into the belief that every material fact necessary to constitute the crime charged is not required to be proven beyond a reasonable doubt.' In Texas the decisions are not harmonious, it being held in some of the cases that as a general rule the ordinary charge upon the effect of a reasonable doubt upon the whole case will be sufficient;* but in a number of cases in this jurisdiction it has been held that a charge is not open to objection which is to the effect that in order to warrant a conviction on circumstantial evidence each fact necessary to establish the guilt of the accused must be proven by competent evidence beyond a reasonable doubt, and the facts and circumstances proved should not only be consistent with the guilt of the defendant, but inconsistent with any other reasonable hypothesis than that of his guilt, and should produce in the minds of the jury a reasonable certainty that the accused committed the offense charged." As to mere matters of subsidiary evidence, adduced to establish the facts essential to a conviction of one accused of crime, the doctrine of reasonable doubt has no application,^' and it is proper Weaver v. People, 24 N. B. 571, 132 111. 536. 7 Weaver v. People, 132 111. 536, 24 N. E. 571. See People v. Grove, 120 N. E. 277, 284 lU. 429. 8 Carson v. State, 84 Tex. Or. R. 342, 30 S. W. 799; Gallaher v. State, 28 Tex. App. 247, 12 S. W. 1087 ; Thur- mond r. State, 27 Tex. App. 347, 11 S. W. 451. sBaldez v. State, 37 Tex. Cr. R. 413, 35 S. W. 664 ; Chitister v. State, "33 Tex. Cr. R. 635, 28 S. W. 683; Crow V. State, 33 Tex. Or. R. 264, 26 S. W. 209 ; Brookln v. State, 26 Tex. App. 121, 9 S. W. 735; Jolinson v. State, 18 Tex. App. 385. 10 111. Jamison v. People, 145 111. 357, 34 N. E. 486. Ind. State V. Fisk, 83 N. £. 995, 170 Ind. 166 ; Wade v. Stat 71 Ind. 535. I'onra, State v. Cohen, 78 N. W. 857, 108 Iowa, 208, 75 Am. St. Rep. 213 kan. State V. PhilUps, 186 P. 743, 106 Kan. 192. N, Y. People V. Kerr (O. & T.) 6 N. T. S. 674. N. C, State v. Crane, 110 N. C. 530, 15 S. E. 231 ; State V. Frank, 50 N. C. 384. See Hinshaw v. State, 47 N. E. 157, 147 Ind. 334. Instimctions held not mislead- ing under rule. A charge in a pros- ecution, wherein the state relied on circumstantial evidence, that all the links in the chain of evidence must he shown beyond a reasonable doubt, but that every particular fact mak- ing up a link in the chain of evidence must be shown, so as to satisfy the jury from the whole evidence as to the truth of several links in the chain of evidence, was proper. State v. Pack, 186 P. 742, 106 Kan. 188. Where, in a prosecution for murder, the court charged, with reference to circumstantial evidence, that it was not necessary that each and every cir- cumstance should be proved oeyond a reasonable doubt, but that some facts might be proved with more and some with less assurance of certainty, it was held that the instruction should not be construed to mean that every circumstance constituting a link in the chain of circumstances necessary to establish the fact of killing by the defendant need not be proved beyond a reasonable doubt, but that every in- cidental circumstance, such as those bearing upon the probabilities that § 235 INSTRUCTIONS TO JURIES 460 to refuse instructions having a tendency to lead the jury to think that each and every subsidiary fact must be proved beyond a reasonable doubt." For this reason instructions which make use of the metaphor of the chain and its links to illustrate the nature of circumstantial evidence, and tell the jury that each link must be shown beyond a reasonable doubt, are objectionable, as the word "link" may be construed by the jury as referring, not only to an essential fact, but to any circumstance brought forward to establish an essential fact.^*- It is better in any case to avoid the use of such rhetorical phrases. If any such allusion is to be made, a more accurate description would be to liken circumstantial evi- dence to the strands of a rope.^* In some jurisdictions, where the only circumstantial evidence in the case is corroborative, it is not error to charge that it is not necessary that every fact and circum- stance and every link in the chain must be proven beyond a rea- sonable doubt, but that all the evidence in the case, when consid- ered as a whole, must satisfy the jury beyond a reasonable doubt that the defendant is guilty.^* the main circumstances were true, Ind. Dunn v. State, 78 N. B. 198, need not be so proved, and was not 166 Ind. 694. therefore misleading. People v. Wol- Neb. Marion v. State, 16 Neb. 349, ter, 97 N. E. 30, 203 N. Y. 484. 20 N. W. 289. 11 Davidson v. State, 135 Ind. 254, ^J^'p- ^tate v. Trull, 85 S. B. 133, 34 N. B. 972; Smith v. State, 85 N. W. ^^L . ^'^^i . 49 61 Neb 296 ****• Hartis v. State, 137 P. 365, 1" Ala Mnrfl!?3'iti« V «?tatP '?'=! So ^° *^^^- '^'- ^^'^' Jidgment affirmed on ■■n^ ion A 1 no^ ?T ' t.. ^ rehearing 139 P. 846, 10 OUl. Cr. 417. 2? So ?63 V25 ila l7-^ Grant v' ^"^ ^^^^ ^- ^'^^^ ^3 So. 292 168 «I.fl OT^io Q^ ^1 o oir. w^ ^1«- 33; Wolf V. People, 102 P. 20, State, 97 Ala. 35, 11 So. 915 ; Whar- 45 -qoIo 532 t°"nable doubt, but so People v. Slauson, 83 N. Y. S. 107, where the guilt is made to appear to 85 App. Div. 166. § 244 INSTRUCTIONS TO JURIES 474 be considered in determining his guilt,®'^ and in. the absence of any evidence of the bad character of the defendant a failure to charge that evidence of his bad character goes only to his credibility as a witness and is not evidence of his guilt is not error.^* Where evidence of the character of a defendant in a criminal prosecution has been admitted to impeach him, it is proper to refuse to instruct that the jury are not to take into account his good or bad charac- ter.®* It is not improper to charge, where the evidence justifies such an instruction, that persons of bad character are entitled ,to defend themselves on the same principles,' and to have the same rules of law applied to them, as persons of good character.®* § 244. Instructions on inability of state to show bad character In some jurisdictions it is error to instruct in a criminal case, where the defendant has not put his reputation in issue by claim- ing to be of good character, that in view of such failure of the defendant to raise such issue the state is not authorized to intro- duce any evidence to impeach his character,^ since such an in- struction is susceptible of the inference that the people, had they been permitted, might have shown that the character of the de- fendant was bad.®* In one jurisdiction, however, it is held not error to so charge, if it is not intimated that the jury should draw inferences prejudicial to the defendant on account of the omission of testimony to his good character.®' Bi People V. "Waugh, 158 P. 336, 30 Ga. 348; People v. Davis, 64 Hun, Gal. App. 402. 636, 19 N. Y. S. 781. 5 2 State V. Furgerson, 63 S. W. 101, os Brown v. State, 32 Olilo Cir. Ct. 162 Mo. 668. R. 93. B3 Jones V. State, 96 Ala. 102, 11 oo People v. Gleason, 55 P. 123, 122 So. 399. Gal. 370. 64 Green v. State, 52 S. E. 431, 124 er state v. Tozier, 49 Me. 404. 475 INSTRUCTIONS ON DEGEBH OF PROOF CHAPTER XVII INSTRUCTIONS ON DEGREE OP PROOF, A. Pbepondebance of Evidence, § 245. Necessity and propriety of instructions. 246. SuflOiciency of instructions. 247. Instructions requiring too higli a degree of proof. 248. Correctness of use of words "satisfy," "to the satisfaction," etc. 249. Instructions not objectionable as requiring too liigh a degree of proof. 250. Requirement that each of the jurors be reasonably satisfied. 251. "Clear" or "fair" preponderance. 252. Slight preponderance. 253. Evidence evenly balanced. 254. Instructions objectionable or criticized as requiring less than a pre- ponderance of the evidence or as permitting jury to speculate upon probabilities. 255. Number of witnesses as element in determining preponderance of evi- dence. 256. Effect of error in defining preponderance of evidence. B. DocTBiNE OF Reasonable Doubt in Ceiminal Cases 1. 'Necessity of Instructions Requiring Proof Beyond a Reasonable Doubt 257. General rule. 258. Qualifications of rule. 2. Sufficiency of Instructions on Necessity of Proof Beyond a Reasonable Doubt 259. General principles. 260. Necessity of defining reasonable doubt. 261. Sufficiency of definitions of reasonable doubt. 262. Doubt arising out of the evidence or want of evidence. 263. Defining reasonable doubt as one for which reason can be given. 264. Actual, real, strong, substantial, or well-founded doubt. 265. Possibility of innocence of accused. - 266. Opportunity of choice between two opposing theories. 267. Probability or supposition of innocence. 268. Probability of guilt. 269. Doubt which would influence, or cause one to hesitate, in his private affairs. 270. Moral or mathematical certainty. 271. Abiding conviction to a moral certainty. 272. Conscientious belief. 273. Effect of doubt upon any particular fact. 274. Necessity of convincing each juror beyond a reasonable doubt in order to convict or to prevent an acquittal. 275. Belief or doubt as men. 276. Doubt as to grade or degree of offense charged. 277. Giving benefit of doubt to state. 278. Repetition of instructions. § 245 INSTRUCTIONS TO JURIES 47& A. Preponderance of Evidence Instructions criticized as Invading province of jury, see ante, § 64. § 245. Necessity and propriety oif instructions The question as to the preponderance of the evidence arises, and only arises, when, the party on whom rests the burden of proof having produced sufficient evidence to support a conclusion in his favor, his adversary introduces opposing evidence. In view of such opposing evidence, the situation may then be such that the jury is in doubt, and not at all satisfied or convinced, in which case the decision must be based upon the preponderance rule. If in the opinion of the jury the evidence preponderates in favor of the one on whom the burden of proof does not lie, or is equally balanced, the decision must be in his favor, and if it preponderates ever so slightly in favor of the other party the latter is entitled to a verdict.^ Accordingly, in civil cases, the general rule is that, on conflicting evidence, an instruction to find according to the pre- ponderance of the evidence, or that the party on whom the bur- den of proof rests, whether it be the plaintiff or the defendant, must prove his case by a preponderance of the evidence, is proper,*^ and such an instruction should generally be given on request.* An instruction which minimizes the importance of the rule re- 1 Lawrence v. Goodwill (Oal. App.) cent view prevailing in this jurisdic- 186 P. 781. tion, however, Is. that, while a charge 2 Ga. Parker v. Georgia Pac. Ry. that the evidence must preponderate Co., 83 Ga. 539, 10 S. E. 233. in plaintifC's favor, to entitle him to HI. Toung V. Oopple, 52 111. App. recover, may be refused, it is not er- 547. ror to give it. Green v. Southern Ind. De Hart v. Johnson County States Lumber Co., 50 So. 917, 163^ Com'rs, 143 Ind. 363, 41 N. E. 825. Ala. 511. Iowa. Jamison v. Jamison, 84 N. s 111. Illinois Cent. R. Co. v. War- W. 705, 113 Iowa, 720. riner, 82 N. B. 246, 229 111. 91, affirm- S. C. Fowler v. Harrison, 42 S. B. ing judgment 132 111. App. 301 ; Kidd 159, 64 S. C. 311. V. White, 138 111. App. 107; Illinois Tex. Birkman v. Pahrenthold, 114 Cent. R. Co. v. Becker, 119 III. App. S. W. 428, 52 Tex. Civ. App. 335. 221 ; Tedens v. Schumers, 112 111. 263. In Alabama it has been held, in Md. Ohlendorf v. Kanne> 66 Md. opposition to the rule of the text, that 495, 8 Atl. 351. in the absence of any applicable le- Or. Kagermann v. Chapman a?im- gal presumption it is for the jury ber Co., 133 P. 342, 65 Or. 588. alone to determine upon the amount In, Missouri it is not error to re* of evidence required to sustain the fuse to instruct that the party having contentions of the party having the the burden of proof must satisfy the- burden of proof, and that the court jury "by a preponderance of evi- should not instruct that the jury are dence" ; it being held that such an in- bound to find according to the pre- struction is couched in technical ponderance of the evidence. Mays v. terms. Anchor Milling Co. v. Walsh, Williams, 27 Ala. 267. The more re- 37 Mo. App. 567. 477 INSTRUCTIONS ON DEGREE OF PROOF §246 quiring a party to prove his case by a preponderance of the evi- dence should not be given.* On the other hand, an instruction is proper which in effect tells the jury that if they find that the plaintiff has proved his case, as stated in his declaration, by a pre- ponderance of the evidence, he is entitled to recover.^ Where de- fendant puts in no evidence, an instruction as to the preponder- ance of the evidence is improper, as the jury in such case consider the case on the evidence of plaintiff.® On conflicting evidence, an instruction on the mode of determin- ing the preponderance of the evidence should be given on re- quest.' Ordinarily, in the absence of a request, it is not error to fail to charge on the general doctrine as to the preponderance of the evidence, or to fail to explain to the jury the meaning of the phrase "preponderance of the evidence." * § 246. Sufficiency of instructions Where the court undertakes to charge on the preponderance of the evidence, the jury should be told that, unless the evidence preponderates in favor of the plaintiff, they should find for the defendant; an instruction to make up their verdict from a pre- ponderaiice of the evidence not being sufficiently definite.* A * Button V. Metcalf, 80 Wis. 193, 49 N. W. 809. B City of Macon v. Smith, 82 S. B. 362, 14 Ga. App. 703; Ford v. Coal Belt Ey. Co., 143 111. App. 431 ; Springfield Consol. Ey. Co. v. John- son, 120 111. App. 100. 6 Cohen v. City of Chicago, 197 111. App. 377. 'Wliere there is no conflict in the testimony, the failure of the court to instruct the jury that plain- tiff must establish the necessary facts by a preponderance of testimo- ny Is not error. Schlengener v. Chi- cago, M. & St. P. Ey. Co., 61 Iowa, 235, 16 N. W. 103. No evidence to rebnt statutory presumption. Where plaintiff had shown an injury inflicted by defend- ant's railway train, thus making a prima facie case of negligence under the statute which defendant failed to explain, instruction that plaintiff must prove by preponderance of tes- timony that decedent was injured by defendant's negligence was errone- ous. Hamel v. Southern Ey. Co. in Mississippi, 74 So. 276, 113 Miss. 344. 7 Louisville & N. E. Co. v. Ward (C. C. A. 111.) 61 F. 927, 10 C. C. A. 166. 8 Cal. Hardy v. Schirmer, 124 P. 993, 163 Cal. 272. Ga. Tallulah Falls Ey. Co. v. Tay- lor, 93 S. E. 533, 20 Ga. App. 786; Jamerson v. Thaxton, 66 S. E. 984, 7 Ga. App. 395; Georgia, F. & A. Ey. Co. V. Lasseter, 51 S. E. 15, 122 Ga. 679; Gunn v. Harris, 88 Ga. 439, 14 S. B. 593. Mo. Zackwik v. Hanover Fire Ins. Co. (App.) 225 S. W. 135. Wis. McHatton v. McDonnell's Estate, 165 N. W. 468, 166 Wis. 323. » Southwestern Telegraph & Tele- phone Co. V. Newman (Tex. Civ. App.) 34 S. W. 661. Illustrations of instructions held prop«r or sufficient. An in- struction that the test of preponder- ance and weight of the testimony is where the jury believe truth to be after hearing all the evidence, was correct. Johnston v. Delano, 154 N. W. 1013, 175 Iowa, 498. , An instruc- tion, on the preponderance of evi- dence, that plaintiff was required to 246 INSTRUCTIONS TO JURIES 478 charge with respect to the degree of proof essential to enable a party to recover is not necessarily erroneous, because it does not expressly require him to prove his case by a preponderance of the evidence ; ^' but such an instruction may be properly refused." It is not error to accompany an instruction on the necessity of establishing a claim by a preponderance of the evidence by the statement that a conviction beyond a reasonable doubt is not re- establish his case by a preponderance of the evidence, that if the evidence was evenly balanced, and the jury were in doubt as to its preponderance, or if it favored the defendant, their verdict should be for the defendant, sufliciently covered the subject. Han- dlan V. Miller, 122 S. "W. 751, 143 Mo. App. 101. An instruction, defin- ing "preponderance of the evidence" as not the greater number of witness- es, but that evidence which was more satisfying and convincing to the minds of the jury, without adding "in respect to its credibility," was not erroneous. Zackwik v. Hanover Fire Ins. Co. (Mo. App.) 225 S. W. 135. A charge that by "preponderance of evidence is meant that superior weight of evidence on the issues, which, while it may not convince the mind beyond a reasonable doubt, is yet sufficient to incline an impartial mind to one side of the issue rather than the other," is a substantial defi- nition of "preponderance of evi- dence." Scott V. Brown, 56 S. E. 130, 127 Ga. 88. An instruction that the preponderance of evidence was not alone determined by the number of ■witnesses, that in determining the preponderance the jury should take into consideration the opportunity of the witnesses for seeing or knowing the things about which they testified, their conduct while testifying, their Interest or lack thereof in the result, and the probability or improbability of the truth of their sSatemeuts in view of all the other evidence, was sufficient upon that point. Hoskovec V. Omaha St. Ry. Co., 123 N. W. 305, 85 Neb. 295. An instruction that the preponderance of evidence in a case is not alone determined by the num- ber of witnesses testifying to a par- ticular fact, and that, in determining upon which side the preponderance of evidence is, the jury may consider the opportunities of the several wit- nesses as to the matters about which they testify, their conduct while tes- tifying, their interest in the result, the probability of the truth of their several statements, and that from all such circumstances the jury may de- termine upon which side is the weight of the evidence, was not er- roneous. Kersberger v. Pacific Lum- ber Co., 88 P. 587, 4 Cal. App. 4tju, rehearing denied, 88 P. 591, 4 Cal. App. 460. J Hueni v. Freehill, 125 111. App. 345; Kerr v. Quincy, O. & K. O. E. Co., 87 S. W. 596, 113 Mo. App. 1. Every instruction need not tell the jury that they must find the facts from a preponderance of the evi- dence. It is sufficient if from the en- tire charge it appears that the jury were clearly directed to predicate their findings of fact upon the evi- dence adduced. Chicago & E. I. R. Co, V. Pittman, 135 III. App. 481, judgment affirmed Pittman v. Chica- go & E. I. R. Co., 83 N. E. 431, 331 111. 581. Instruction setting out facts to be found from, the evidence. Where an instruction directed that, if the jury found from the evidence the facts therein stated, they should find defendant guilty, and tlie facts stated were all the facts necessary to constitute a cause of action and require such verdict, the instruction was not objectionable for failure to require that the finding of the facts must be from a preponderance of the evidence. Illinois Cent. E. Co. v. Warriner, 82 N. E. 246, 229 111. 91, affirming judgment 132 111. App. 301. 11 Richardson v. Dybedahl, 98 N. W. 164, 17 S. D. 629. 4:79 INSTRUCTIONS ON DBGEBE OF PKOOF § 247 quired ; ^^ but the trial court, having laid down the proper rule as to the amount of evidence required to prove certain facts in is- sue, has discretion to refuse to make such additional statement.^' An instruction which enumerates various elements to be con- sidered in determining the preponderance of the evidence, but which does not leave the jury free to consider all the facts and circumstances in evidence in deciding where such preponderance lies is erroneous, and is properly refused.^* The court should not single out a part of the evidence, and require the jury to determine the weight of the evidence from such part,^^ and an instruction which prevents a party from relying on the proof of his adversary in making out a preponderance of the evidence is error.^® The re- quirements of the rule as to the preponderance of the evidence should be limited to those issues essential to the maintenance of the action," and should not be extended to material allegations of the complaint which are admitted.^* An instruction that the plain- tiff must make out his case, so far as he has the affirmative, by a preponderance of testimony, without telling the jury in what re- > spect he has the affirmative, is improper,^* as is an instruction that the defendant has the burden of proving a counterclaim by the preponderance of all the evidence in the cause, he being only required to prove it by a preponderance of the evidence relevant to that- particular issue.*" § 247. Instructions requiring too high a degree of proof In civil actions the party upon whom the burden of proof rests is not required to prove his case or his defense by more than a preponderance of the evidence, and instructions which exact more, 12 Kueiister v. Woodhouse, 77 N. W. to the effect that "every item ' and 165 101 Wis. 216. element of damage claimed' by the 13 Wunderiich v. Palatine Ins. Co., plaintiff must by shown by a prepon- 92 N W. 264, 115 Wis. 509. deranee of the evidence in the case." 14 Parker v. Chicago Rys. Co., 200 Richardson v. Chicago City Ry. Co., 111. App. 9 ; Larsen v. Ward Corby 170 111. App. 336. Co., 198 111. App. 109 ; Smith v. James, An instruction to decide all the 16.3 111 App. 501; Eddy v. Lowry issues by a preponderance of the (Tex Civ App.) 24 S. W. 1076. evidence Is not, however, objection- is Briseh V. Chicago City Ry. Co., able as indefinite and misleading, 176 111 App. 341. where the issues submitted embraced 18 Philadelphia,' B. & W. R. Co. v. the material allegations of plaintiff's Hand 61 A. 285, 101 Md. 233. petition. Texas & P. Ry. Co. v. ifNelson V Chicago City Ry. Co., Whiteley, 96 S. W. 109, 43 Tex. Civ. 163 111. App. 98; Freeman Wire & App. 346. Iron Co. y. Collins, 53 111. App. 29; isO'Donnell v. Chicago, R. I, & P. Collins V. Clark, 72 S. W. 97, 30 Tex. R. Co., 01 N. W. 566. 65 Neb. 612. Civ App 341. ^° Gilbert v. Bone, 79 111. 341. Proof of elements of damage. 20 Cohen v. Reichman, 102 N. E. An Instruction is too broad which is 284, 55 Ind. App. 164. §247 INSTRUCTIONS TO JURIES 480 or which tend to lead the jury to think that more is demanded, are erroneous, and should be refused.^^ Under this rule, instructions which require the jury to have no doubt, or not to entertain any uncertainty, in order to find for the party having the burden of 21 Ala. Monte v. Narramore, 77 So. 726, 201 Ala. 200; United States Kdelity & Guaranty Co. v. Charles, 31 So. 558, 131 Ala. 658, 57 L. R. A. 212; Phoenix Ins. Co. v. Moog, 81 Ala. 335, 1 So. 108. Cal; Ellis v. Central California Traction Co., 174 P. 407, 37 Cal. App. 390. Conn. Beach v. Clark, 51 Conn. 200. 111. Brady v. Mangle, 109 111. App. 172. Ind. Hartman & Fehrenbach Brewing Co. v. Clark, 51 A. 291, 94 Md. 520. Mich. Van Slyke v. Books, 147 N. W. 579, 181 Mich. 88. Miss. Mardis v. Tazoo & M. V. R. Co., 76 So. 640, 115 Miss. 734; Gen- try V. Gulf & S. I. R. Co., 67 So. 849, 109 Miss. 66. ' Mo. State ex rel. Detroit Fire & Marine Ins. Co. v. Ellison, 187 S. W. 23, 268 Mo. 239, quashing record (App.) Rice V. Detroit Fire & Marine Ins. Co. of Detroit, Mich., 176 S. W. 1113. N. Y. Kennealy v. Westchester Electric Ry. Co., 83 N. T. S. 823, 86 App. Div. 293, affirmed 74 N. E. 1119, 181 N. Y. 582. Tex. Gilmore v. Brown, 150 S. W. 964. Instructions improper within rule. An instruction that, if upon any hypothesis a fact can be account- ed for on any other theory than a dishonest one, the jury should so find. Nebraska Mercantile Mut. Ins. Co. V. Myers, 107 N. W. 747, 76 Neb. 460. An instruction that plaintiffs must establish their case "to the full satisfaction of the jury, by clear and convincing proof." Gage v. Louis- ville, N. O. & T. B. Co., 88 Tenn. 724, 14 S. W. 73. A charge that. If the jury cannot say who has told the truth, they must find the facts, so far as there is conflict, not proven. Kansas City, M. & B. R. Co. v. Crock- er, 95 Ala. 412, 11 So. 262. An in- struction that, if the evidence show- ed "conclusively" that defendant vio- lated the contract as charged, plain- tiff would be entitled to recover a sufficient amount to cover his loss. Works V. Hill, 107 S. W. 581, 48 Tex. Civ. App. 631. An instrurtion that a party alleging fraud must produce stronger proof than would be suffi- cient to establish a mere debt, and that the burden is on a party alleging fraud to overcome the presumption of honesty. D. S. Giles & Son v. Hom- er, 149 N. W. 333, 97 Neb. 162. An instruction, in an action against a railroad for damages to plaintiff's pasture by fire, that, if the jury was ^ in doubt as to the lorigih of the fire, ' and could not say of a certainty which fire caused the damage, they should find for defendant. Stevenson v. Yazoo & M. V. R. Co., 74 So. 132, 112 Miss. 899. In an action of claim and' delivery, an instruction definiag preponderance of the evidence, and adding that if, after a comparison and consideration of all the evidence, the evidence for and against any material allegations of the complaint is evenly balanced, the plaintiff has failed to prove her ease, and verdict -should be for the defendant, was properly refus- ed as stating that, if plaintiff failed to prove any allegation, the entire cause of action would fail. Webster V. Sherman, 84 P. 878, 33 Mont. 448. Proof to justify equitable relief. The rule that in a particular case the evidence must be clear and convincing to justify equitable relief by reforma- tion of an instrument should hot be given in the charge to the jury. West- ern Assur. Co. V. Hillver-Deutsch- Jarratt Co. (Tex. Civ. App.) 167 S. W. 816. Proof that absolute deed was in- tended as mortgage. Though, to authorize a finding that an absolute deed was intended as a mortgage, such intention must be shown by the 481 INSTRUCTIONS ON DEGREE OF PROOF 247 proof, are erroneous.** So an instruction that requires the jury to find against the party having the burden of proof, if there is an element of uncertainty in the evidence which they cannot solve, is erroneous.** So instructions are erroneous which require that, before the jury can find the existence of certain facts, the evidence must be clear and strong, and leave no doubt in the minds of the jury,** or which require that such facts be established with certainty, or clearness and certainty,*® or which require them to be proved with reasonable certainty,** or to a reasonable and moral cer- evidence with clearness and certain- ty, it is Improper to so instruct the jury. Pahn v. Chernowsky, 67 S. W. 165, 28 Tex. Civ. App. 405. 2 2 Ala. Brown v. Master, 104 Ala. 451, 16 So. 443; Alabama G. S. R. Co. V. Hill, 93 Ala. 514, 9 So. 722, 30 Am. St. Rep. 17 ; Harris v. RusseU, 93 Ala. 59, 9 So. 541 ; Rowe v. Baber, 93 Ala. 422, 8 So. 865. Ark. A. I(. Clark Lumber Co. v. Bolin, 133 S. W. 1116, 97 Ark. 343; Miller v. Hammock, 124 S. W. 769, 93 Ark 312. m. Reynolds v. Wray, 135 111. App. 527. Miss. Brown v. Walker, 11 So. 724. N. C. Willis V. Atlantic & D. R. Co., 29 S. E. 941, 122 N. C. 905. B. I. Hobin V. Hobin, 80 A. 595, 33 R. I. 249. Tex, Lewter v. I/indley; 121 S. W. 178. Instruction improper within mle. A charge in an action on a note, which there was testimony to show was given to be returned, or for the true amount to be fixed in the future, that if the returning, standing by itself, was proved to their entire satisfaction, plaintifC could not use the note against de- fendant, but that defendant must sat- isfy them by the weight of evidence, by testimony in which they had im- plicit confidence. Ott v. Oyer's Ex'x, 106 Pa. 6. 2 3 Louisville & N. R. Co. v. Bouch- ard, 67 So. 265, 190 Ala. 157 ; Louis- ville & N. R. Co. V. Mason, 64 So. 154, 10 Ala. App. 263; Birmingham Ry., Light & Power Co. v. Jackson, 63 So. 782, 9 Ala. App. 588; Mon- INST.TO Juries— 31 aroh Livery Co. v. Luck, 63 So. 656, 184 Ala. 518; Louisville & N. E. Co. V. Penick, 62 So. 965, 8 Ala. App. 558 ; Alabama Great Southern R. Co. v. Robinson, 62 So. 813, 183 Ala. 265; Jesse Fl-ench Piano & Organ Co. v. Forbes, 32 So. 678, 134 Ala. 302, 92 Am. St. Rep. 31. Minds of jnry in confnsion. A Charge that If, after fair considera- . tion of all the evidence, the minds of the jury were in confusion whether plaintiff should recover, they should find for defendant, may properly be refused. O'Brien v. Birmingham Ry., Light & Power Co., 72 So. 843, 197 Ala. 97. 21 Long V. Martin, 54 S. W. 473, 152 Mo. 668. 2 5 First Nat. Bank v. Myer, 56 S. W. 213, 23 Tex. Civ. App. 302 ; Mixon V. Farris. 48 S. W. 741, 20 Tex. Civ. App. 253 ; Howard v. Zimpelman, 14 S. W. 59. Reasonable degree of certainty, A phrase in a charge that "the minds of the jury should be satisfied to a reasonable degree of certainty" does not present reversible error. Liver- pool & London & Globe Ins. Co. v. Farnsworth Lumber Co., 72 Miss. 555, 17 So. 445. 2 6 American Lumber & Export Co. v. Love, 84 So. 559, 17 Ala. App. 251 ; Smiley v. Hooper, 41 So. 660, 147 Ala. 646; Anniston Mfg. Co. v. Southern Ry. Co., 40 So. 965, 145 Ala. 351; Leggett V. Illinois Cent. R. Co., 72 111. App. 577. In civil cases reasonable satisfac- tion, not satisfaction beyond a rea- sonable doubt, is all that is reqoiired. Lowery v. Rowland, 104 Ala. 420, 16 So. 88. 247 INSTRUCTIONS TO JURIES 482 tainty,*' or which require them to be conclusively proved,** or to be absolutely, shown,** or to be proven beyond a rational doubt-,*" or which require that no other rational conclusion can be drawn,*^ or which require such facts to be proven beyond a reasonable doubt.*' So instructions are erroneous, as demanding too high a degree of proof, which require that the jury be reasonably persuaded of the existence of essential facts,** or which require- that the proof of such facts be sufficient to convince the minds of the jury,** or which require the consciences of the jufy to be satisfied,*® or that necessary facts must be established to the minds and con- s'" Galloway v. United Railroads of San Francisco (Gal. App.) 197 P. 663 ; "Whatley v. Long, 93 S. E. 887, 147 Ga. 323. 2 8 Greathouse v. Moore (Tex. CiV. App.) 23 S. W. 226. 2 8 Bolen-Damall Coal Co. v. Wil- liams (C. C. A. Ind. T.) 164 F. 665, 90 C. C. A. 481, reversing judgment 104 . S. W. 867, 7 Ind. T." 648; Mann v. Darden, 60 So. 454, 6 Ala. App. 555. . 3 Neal V. Fegperman, 46 N. O. 446. Contra. Yarbrough v. Arnold, 20 Art. 592. 31 Pelky V. Palmer, 109 Mich. 561, 67 N. W. 561. 32 Ala. Decatur Car Wheel & Mfg. Co. V. MehafCey, 29 So! 646, 128 Ala. 242. Ga. Seymour v. Bailey, 76 Ga. 838. Kan. Stille v. McDowell, 2 Kan. 374. 85 Am. Dec. 590. Ky. iEtna Ins. Co. v. Johnson, (11 Bush) 587, 21 Am. Rep. 223. Md. Shoop V. Fidelity & Deposit Co. of Maryland. 91 A. 753, 124 Md. 130, Ann. Gas. 1916D, 954. Mo. Brooks v. Roberts, 220 S. W. 11. 281 Mo. 551. N. Y. Tablonka v. Knickerbocker Ice Co. (Sup.) 161 N. T. S. 257 ; Bel- zer V. Daub Storage Warehouse & Van Co. (Sup.) 130 N. T. S. 153. Pa. Catasauqua Mfg. Co. V. Hop- kins, 141 Pa. '30, 21 A. 638,. 28 Wkly. Notes Cas. 146. W. Va. .Jones v. Riverside Bridge Co., 73 S. E. 942, 70 W. Va. 374. Instructions improper trithin rule. Where the court properly In- structed that the- burden was on the party alleging fraud to establish it by clear and satisfactory evidence, a further statement that It "might be established by proving circumstances from the existence of which fraud Is the natural and irresistible infer- ence," and that, "if the case made out Is consistent with fair dealing and honesty, the charge of fraud fails," was erroneous; since the jury might infer that fraud must be established beyond a reasonable d'oubt. F. Doh- men Co. v. Niagara Fire Ins. Co. of City of New Xork, 71 N. W. 69, 96 Wis. 38. Where it is doubtful -nrhether under an instruction in a civil ac- tion, the jury are to find according to preponderance of evidence, or must be satisfied beyond a reasonable doubt. It ^ould be refused. Hocum V. Weitherick, 22 Minn. 152. Proper form of instruction. An instruction that "the plaintiff ,is not bound to prove his case beyond a reasonable doubt, but is merely bound to prove it by a preponderance of the evidence" is correct. Grouse v. Bar- ber Asphalt Paving Co., 162 111. App. 271; Riordan v. Chicago City Ry. Co., 178 111. App. 323. 8 3 White V. Farris, 27 So. 259, 124 Ala. 461. 3* Southern Ry. Co. v. Hobbs, 43 So. S44, 151 Ala. 335; Newman v. Newman. 208 111. App. 97 ; Merchants' Loan & Trust Co. v. Lamson, 90 111. App. 18. 8 5 Birmingham Ry. Light & Power Co. V. Martin, 42 So. 618; 148 Ala. 8; Birmingham Ry., Light & Power Co. V. Hinton, 37 So. 635, 141 Ala. 606. • 483 INSTRUCTIONS ON DEGREE OF PROOF §248 sciences of the jury by a preponderance of the evicience,^^ or which call for clear and positive proof.s'' or for satisfactory affirma- tive proof,** or which demand that facts be clearly, or clearly and fairly, proven,** or which require abundant proof,** or an abiding conviction,*! or that the jury be clearly convinced,*® or that the evidence shall be clear and unequivocal,** or that it be clear, cogent and convincing,** or that it must be clear, convincing, and conclusive,*^ or that essential facts be clearly and distinctly prov- en,*8 or requiring such proof as clearly outweighs" the evidence of the other side.*'" An instruction requiring a party to establish his case or cer- tain necessary facts has been held to require too high a degree of proof ; ** but there are decisions the other way.** § 248. Correctness of use of words "satisfy," "to the satisfac- faction," etc. Taking the view that the burden of proof on a party is sustained by evidence sufficient reasonably to satisfy, the jury, it is held in some jurisdictions that a charge that the jury must be satisfied se McKay v. Seattle Electric Co., 136 P. 134, 76 Wash. 257. 3 7 Simpson Bahk v. Smith, 114 S. W. 445, .52 Tex. Civ. App. 349. 3 8 Friqk v. Kabaker, 90 N. W. 498, 116 Iowa, 494. so McLeod v. Sharp, 53 111. App. 406 ; Hall v. Wolff, 61 Iowa, 559, 16 N. W. 710, following West v. Druff, 55 Iowa, 335, 7 N. W. 636. io Swinney v. Booth, 28 Tex. 113. 41 Battles V. Tallman, 96 Ala. 403, 11 So. 247. 42 Wilkinson v. Searcy, 76 Ala. 176 ; Wilcox V. Henderson, 64 Ala. 535; Silverstone v. London Assur. Corpora- tion, 142 N. W. 776, 176 Mich. 525. In an equity anit, in which the findings of the jury are merely ad- visory, such an instruction is prop- er. Sweetser v. Dobbins (Cal.) 3 P. 116. 43 aicCord-Brady Co. v. MoneyhaUj 81 N. W. 608. 59 Neb. 593. 44 Dovlch V. Chief Consolidated Mining Co., 174 P. 627, 53 Utah, 522. 4 5 Roberge v. Bonner, 77 N. E. 1023, 185 N. Y. 265, affirming judg- ment 88 N. T. S. 91, 94 App. Div. 342. 46 Gehlert v. Quinn, 90 P. 168, 35 ' Mont. 451, 119 Am. St. Rep. 864. 47 Callison v. Smith, 20 Kan. 28. 48 McMasters v. Grand Trunk Ry. Co., 155 111. App. 648; Van Geem v. Cisco Oil MiU, 152 S. W. 1108 ; Inter- national & G. N. R. Co. V. Duncan, 121 S. W. 362, 55 Tex. Civ. App. 440. 49 Gamble v. Martin (Tex. Civ. , App.) 151 S. W. 327; Houston & T. C. R. Co. V. Swancey (Tex. Civ. App.) 128 S. W. 677. Use of "establish" in tbe sense of "prove." An instruction that the burden of proof was on plaintiff, and that before he could recover he must establish all the facts necessa- ry to his recovery by a preponderance of the evidence, the burden resting on defendant "to establish his plea ot self-defense," was not erroneous in the use of the word "establish," as requiring too high a degree pf proof, it being used in the sense of "prove" ; the court having also charged that the jury should find for plaintiff, if they believed from a preponderance of the evidence that defendant made an unlawful assault on plaintiG;, and to find for defendant, if they believ- ed from a preponderance of the evi- dence that plaintiff was about to make an attack, real or apparent, on de- fendant. Sumner v. Kinney (Tex. Civ. App.) 136 S. W. 1192. §248 INSTEUCTIONS TO JtJEIES 484 by a preponderance of the .evidence of the existence of essential facts, or that a fact must be shown to the satisfaction of the jury, exacts too high a degree of proof, and is erroneous,** and such in- structions are properly refused.®^ , In other jurisdictions, however, a requirement of proof which "satisfies" the jury, or "to the satis- Bo Ala. Gillespie v. Hester, 49 So. 580, 160 Ala. 444 ; Hackney v. Perry, 44 So. 1029, 152 Ala. 626; McEntyre V. Hairston, 44 So. 417, 152 Ala. 251 ; Loveman v. Birmingham Ry., L. & P. Co., 43 So. 411, 149 Ala. 515; I^w- renee v. Doe, 41 So. 612, 144 Ala. 524 ; Birmingham Ry., Light & Pow- er Co. V. Lindsey, 37 So. 289, 140 Ala. .S12; Moore v. Helneke, 24 So. 374, 119 Ala. 627. Ark. Arkansas M. R. Co. v. Can- man, 52 Ark. 517, 13 S. W. 280. Cal. Lawrence v. Goodwill (App.) 186 P. 781. 111. Buff V. Jarrett, 94 111. 475; Protectibn Life Ins. Co. v. Dill, 91 111. 174; Thomas v. Ohio Coal Co., 199 111. App. 50; Briggs v. Kohl, 132 111. App. 484; Hutchinson Nat. Bank v. Crow, 56 111. App. 558 ; Wollf v. Van Housen, 55 111. App. 295; Connelly V. Sullivan, 50 111. App. 627; Gooch V. Tobias, 29 111. App. 268; Ottawa, O. & F. R. V. R. Co. V. McMath, 4 lU. App. .S56. Iowa. Rosenbaum Bros. v. Levitt, 80 N. W. 393, 109 Iowa, 292. Ohio. Cincinnati, H. & D. Ry. Co. V. Frye, 88 N. E. 642, 80 Ohio St. 289, 131 Am. St. Rep. 709; Buttermiller V. Schmid, 4 Ohio App. 100. Tex. Brewer v. Doose (Civ. 4pp-) 146 S. W. 323; Terrell Wholesale Grocery Co. v. Christian Peper Tobac^ CO Co. (Civ. App.) 120 S. W. 565; Cantine v. Dennis (Civ. App.) 37 S. W. 184; Finks v. Cox (Civ. App.) 30 S. W. 512; McBride v. Banguss, 65 Tex. 174. Instructions held improper witbin rule. An instruction that "if the claim made by either party is unusual, unreasonable, and un- natural, out of the ordinary course of affairs, you are not required to take the same for granted upon slight evidence, nor should you so find except upon proof of a 'reasonable character and which satisfies the mind." Gardner v. Ben Steele Weigh- er Mfg. Co., 142 111. App. 348. In an action for breach of contract, the ex- istence of the contract alone being in issue, an instruction on the part of defendant that, "if the evidence fails to satisfy you, you will find for de- fendant." San Antonio & A. P. Ry. Co. V. Graves & Paterson (Tex. CiV. App.) 131 S. W. 613. In a suit to restrain the operation of a cotton gin as a nuisance, an instruction to find for defendant unless the jury should "find and be satisfied" that the evils complained of are imminent and cer- tain to occur. Moore v. Coleman (Tex. Civ. App.) 195 S. W. 212. "Thoronghly satisfied." An in- struction, on the trial of a civil case, that the jury must be "thoroughly sat- isfied" of a fact in dispute, is errone- ous. O'Donohue v. Simmons, 58 Hun, 467, 12 N. Y. S. 843. Satisfying mind of truth. A preponderance, or "fair preponder- ance," of evidence means merely the greater weight of evidence, and it is error to instruct that it signifies "tes- timony of such superior weight and convincing force as satisfies the mind of its truth." Bryan v. Chicago, E. I. & P. Ry. Co., 63 Iowa, 464, 19 N. W. 295. To require proof of a fact by "full and satisfactory" evidence is equivalent to asking for proof beyond a reasonable doubt. Carleton-Fergu- son Dry Goods Co. v. McFarland (Tex. Civ. App.) 230 S. W. 208. Bi Ala. Du Bose v. Conner, 53 So. 432;, 1 Ala. App. 456; Alabama City, G. & A. Ry. Co. v. Sampley, 53 So. 142, 169* Ala. 372; Southern Ry. Co. v. Hobbs, 43 So. 844, 151 Ala. 335. 111. Dombrowski v. Metropolitan Life Ins. Co., 192 111. App. 16 ; Swig- art V. Savely, 176 111. App. 369 ; Les- lie V. Joliet Bridge & Iron Co., 149 111. App. 210. Tex. Fraser-Johnson Brick Co. v. 485 INSTRUCTIONS ON DBGEEE OP PROOF §248 faction of the jury," is not improper,^^ it being held "th'at such phrases merely inform the jury that they are the judges as to where the preponderance of evidence lies,®* and it can safely be affirmed that the use of such phrases wiU not be error in any ju- risdiction where the charge as a whole clearly shows that the court does not intend to require more than a preponderance of the evidence".''* In Wisconsin it has been held by Judge Marshall .that the jury should be told that they should find according as they shall be satisfied of the truth of the matter in qontroversy by a prepon- derance of the evidence, and that if it is thought best to give greater definiteness to the word "satisfied," or, if requested, the court should instruct that the jury, before finding in favor of the Baird, 128 S. W. 460, 60 Tex. fflv. App. 538; Seligmann v. I,. Greif &' Bro. (Civ. App.) 109 S. W. 214 ; West- ern Cottage Piano & Organ Co. v. Anderson, 101 S. W. 1061, 45 Tex. Civ. App. 513 ; Fordyce v. . Chancey, 2 Tex. Civ. App. 24, 21 S. W. 181. TTndispiited facts. Where, in an instruction tliat, before plaintiffs could recover, the jury must be "sat- isfied" that certain facts exist, which it was incumbent on plaintiffs to show, the word "satisfied" is used with reference to a fact about which there is no dispute, error cannot be predicated thereon. Martin v. Mis- souri Pac. By. Co., 3 Tex. Civ. App. 133, 22 S. W. 195. 02 Ind. Terre Haute Traction & Light Co. V. Payne, 89 N. B. 413, 45 Ind. App. 132. Mich. Kaaro v. Ahmeek Mining Co., 146 N. W. 149, 178 Mich. 661. Mo. Anderson v. Voeltz, 206 S. W. 584 ; Norris v. St. Louis, I. M. & S. By. Co., 144 S. W. 783, 239 Mo. 695 ; McMahon v. Supreme Tent, Knights of the Maccabees of the World, 52 S. W. 384, 151 Mo. 522. N. C. Sigmon v. Shell, 81 S. E. 739, 165 N. C. 582. Wis. McKone v. Metropolitan Life Ins. Co., 110 N. W. 472, 131 Wis. 243. A charge that the harden of proof is on plaintiff to "estab- lish" the facts essential to his cause of action by a preponderance, or great- er weight, of evidence, sufficiently In- forms the Jury that they must be "satisfied by a preponderance of the evidence" in order to find for plain- tiff. Jones V. Monson, 119 N. W. 179, 137 Wis. 478, 129 Am. St. Rep. 1082. 53 Surber v. Mayfield, 60 N. B. 7, 156 Ind, 375. 54 St. Louis, J. & M. S. By. Co. v. Sparks, 99 S. W. 73, 81 Ark. 187. Use of word "satisfy" in the sense of "find" or "believe." Where it is conceded that the court used the word "satisfy" as meaning to produce a belief, an instruction that the burden was on defendants to "satisfy" the jury by a preponderance of testimony as to certain proposi- tions was not misleading. Sams Au- tomatic Car-Coupler Co. v. League, 54 P. 642, 25 Colo. 129. An instruc- tion, given as to an alleged failure to deliver a bank bill of a certain denomination In exchange for a like amount in bills of smaller denomina- tions given to defendant, declaring that a prima facie case as to nonde- livery must be made by plaintiff to the "satisfaction" of thie jury, is not ob- jectionable In requiring a greater de- gree of evidence than a preponder- ance, when followed by an instruction declaring the burden then shifted to defendant, under a plea of delivery, to establish the said delivery, and that, if from a "preponderance" the jury are satisfied of the nondelivery, they must find for plaintiff; other- wise for defendant. Callan v. Han- son, 86 Iowa, 420, 53 N. W. 282. § 249 INSTRUCTIONS TO JURIES 486 party on "whom the burden of proof rests to establish any fact, should be satisfied of the existence thereof to a reasonable cer- tainty, and that if it is thought desirable to define preponderance of evidence or if so requested the court should define it as out- weighing in convincing force and not merely as that evidence which convinces the minds and judgments of the jury.®* Accord- ingly, in this jurisdiction, a charge that the jury must be satis- fied by the preponderance of the evidence, to a reasonable cer- tainty, that a fact exists before they can find such fact, is not er^ roneous,** and it is misleading to instruct the jury to find for plaintiff if he "has proven his case by a fair preponderance of evidence, if his evidence weighs enough more than that of the defendant to turn the scale on plaintiff's side, even if it be but little, if that little be perceptible," etc., instead of charging that they must be "satisfied," by a. preponderance of evidence, of the existence of all facts essential to his right of recovery,®'' although an instruction that the case is to be decided on the preponderance of the evidence, and that that evidence preponderates which weighs most, is not objectionable, where the court charges, in immediate connection therewith, that the jury m-ust be "satisfied" by a pre- ponderance of the evidence.®* § 249. Instructions not objectionable as requiring too high a degree of proof An instruction requiring the jury to find the necessary facts to their reasonable satisfaction does not, as already indicated, de- mand too high a degree of proof.®' Instructions do not require 6 5 Grotjan v. Klce, 102 N. W. 551, ably "convinced" that she has borne 124 Wis. 253. the burrl'en, the verdict will be for aaPelitier v. Chicago, St. P., M. & plaintiff, is not erroneous because of O. Ey. Co., 88 Wis. 521, 60 N. W. 250. the use of the word "convinced" in- An instruction to the jury to stead of "satisfied." Meyrovitz v. find according to their "convic- Levy, 63 So. 963, 184 Ala. 293. tion" as to what is true, and to And Necessity of using phrase "fair for plaintiff if they "believe" that the preponderance." A charge that evidence preponderates in his favor, plaintiff is entitled to a verdict, if the is proper. Curran v. A. H. Stange .1ury are "reasonably satisfied from Co., 74 N. W. 377, 98 Wis. 598. all the evidence that the allegations 57 Guinard v. Knapp, Stout & Co., of the complaint are true," is not er- 70 N. W. 671, 95 Wis. 482. roneous because it fails to state that ss Knopke v. German town Farmers' the jury must be satisfied from a Mut. Ins. Co., 74 N. W. 795, 99 Wis. "fair preponderance" of the evidence. 289. Louisville & N. K. Co. v. White (C. 69 O'Neill V. Blase, 68 S. W. 764, 94 C. A. Ala.) 100 F. 239, 40 O. C. A. 352. Mo. App. 648. In Texas, however, it is held that Reasonably conTinced, An in- an instruction that the burden is on struction that defendant has the bur- plaintiff to establish to the jury's den of proving a fact alleged, and reasonable satisfaction by a prepon- that unless the jury shall be reason- derance of the evidence the allega- 487 INSTRUCTIONS ON DEGREE OF PROOF §251 too high a degree of proof which demand that essential facts be established by a preponderance of the evidence satisfactory to the minds of the jurors,*" or which say that the jury should be sure that such facts have been proven,®^ or which require facts to be established by the fair weight of all the evidence,** and it is proper to define preponderance of evidence as meaning the greater weight of evidence,** or that greater and superior weight of the evidence as "reasonably satisfies" the minds of the jury.** § 250. Requirement that each of the jurors be reasonably satisfied As a general rule it is proper to charge, and error to refuse to charge, that if any one of the jurors is not reasonably satisfied from the evidence that the plaintiff is entitled to recover the jury cannot find for him.*^ Such a charge is properly refused, however, where the main question litigated is as to the kind and amount (Ji damages rather than the right to recover at all,** and it is proper to refuse to charge that the verdict should be for the defendant in case of the failure of the plaintiff to reasonably satisfy any one of the jurors, since a mistrial would be the result of such failure.*' § 251. "Clear" or "fair" preponderance An instruction that the jury are to decide the contested issues of fact on the "clear" or "fair" preponderance of the evidence, or that a fact in issue must be established by a fair preponderance of the evidence,** is held in some jurisdictions not to be error, or at tions ia his petition is erroneous, be- cause imposing on plaintifE a greater burden than the establishment of his cause by a preponderance of the evi- dence. Green v. Kegans, 118 S. W. 173, 54 Tex. Civ. App. 237. 60 Carl V. Settegast (Tex. Civ. App.) 211 S. W. 506 ; Carstens v. Earles, 67 P. 404, 26 Wash. 676. ei Bodie v. Charleston & W. C. Ky. Co., 39 S. E. 715, 61 S. "0. 468. 02 McKeon v. Chicago, M. & St. P. Ry. Co., 69 N. W. 175, 94 Wis. 477, 35 L. R. A. 252, 59 Am. St. Eep. 910. In Wisoojisiii hy the phrase "weight of evidence" is meant the convincing power of the evidence. Guinard v. Knapp, Stout & Co., 70 N. W. 671, 95 Wis. 482. 6 3 Western Union Tel. Co. v. James, 73 S. W. 79, 31 Tex.' Civ. App. 503. 6. O. Ry. Co., 109 S. W. 403, 49 Tex. Civ. App. 463; B. Lantry Sons V. liowrie '(Civ. App.) 58 S. W. 837; Atkinson v. Reed (Civ. App.) 49 S. W. 260; Cabell v. Menczer (Civ. App.) 35 S. W. 206. 489 INSTRUCTIONS ON DEGREE OF PROOF 253 proper." In one jurisdiction it is held that it is not error to in- struct that the slightest difference in the weight of the evidence is a preponderance sufficient to justify a verdict in favor of the party in whose favor such preponderance exists, for all that the law re- quires is that the party having the burden of proof sha^ll have a preponderance of the evidence, and this means only that the evi- dence shall be in some degree more convincing to sustain his con- tention than that of his adversary, and the term "fair preponder- ance of the evidence," often used in instructions, is really mean- ingless.'* Such an instruction, however, has been held subject to criti- cism,'* and where the issue is one of fraud it is error to give it in some jurisdictions.''* § 253. Evidence evenly balanced It is, of course, error to give an instruction which would pre- vent the defendant from recovering if the evidence is evenly bal- anced.'^ Thus an instruction that if the plaintiff fails to prove 71 lU. Hancheft v. Haas, 76 N. B. 845, 219 111. 546; Chicago Glty Ry. Co. V. Bundy, 71 N. B. 28, 210 111. 39, af- firming judgment 109 111. App. 637; Chicago City Ry. Co. v. Fennimore, 64 N. E. 985, 199 111. 9, affirming judg- ment 99 111. App. 174 ; Comorouskl v. Spring Valley Coal Co., 203 111. App. 617; Meers v. Daley, 203 111. App. 515; Glascock v. Ceroid, 199 111. App. 134; Young v. City of Fairfield, 173 111. App. 311; La Belle v. Grand Cen- tral Market Co., 172 111. App. 582; Ryan v. City of Chicago, 162 111. App. 252; Hamilton v. Kankakee Electric Ey. Co., 158 111. App. 422; Devine v. Ryan, 115 111. App. 498; Chicago Union Traction Co. v. Lawrence, 113 111. App. 269, judgment affirmed 71 N. ■ B. 1024, 211 111. 373 ; Chicago & E. I. K. Co. V. DriscoU, 107 111. App. 615, judgment affirmed 69 N. E. 620, 207 111. 9; Donley v. Dougherty, 75 111. App. 379, affirmed 51 N. E. 714, 174 111. 582. Tenn. Chapman v, McAdams, 1 Lea, 500. Instmctiona beld proper xrlthin rule. In an action against a city for damages occasioned by requiring the elevation of a railroad track, an in- struction that if the jury, after hav- ing considered all the facts, including the numbers of witnesses and circum- stances appearing on the trial, feel that from the testimony it is more probable that any fact is true or not, then such fact is proven by the pre- ponderance of the testimony, however slight the preponderance may be, is not ground for reversal. City of Chi- cago V. Webb, 102 111. App. 232. "However slight." The use in an instruction of the words "however slight," in speaking of the preponder- ance of the evidence, does not war- rant a criticism of the instruction, where the party objecting thereto ad- mits that the use of the words, "if the evidence preponderated but slight- ly," in the instruction would have been good; there being no material difference between the expressions. Smiley v. Barnes, 196 111. App. 530. 72 Hammond, W. & B. C. Electric Ry. Co. V. Antonia, 83 N. E. 766, 41 Ind. App. 335; 7s Chicago City Ry. Co. v. Nelson, 116 111. App. 609; O'Donnell v. Ar- mour Curled Hair Works, 111 111 App. 516. 7* St. Louis & S. F. R. Co. v. Brun- er, 156 P. 649, 56 Okl. 682. 76 Wall V. Hill's Heirs, 1 B. Mon. 290, 36 Am. Dec. 578. § 253 INSTRUCTIONS TO JURIES 490 his case by a preponderance of the evidence the verdict should be for the defendant is erroneous, as requiring the defendant to es- tabhsh his case by such a preponderance.'" In a proper case it will not be error to instruct that if the evidence is evenly balanced upon the "whole case, or upon any material allegation of the com- plaint, the verdict must be against the party having the burden of proof or for the defendant," and it will be error to refuse such an instruction '* unless the issues include affirmative defenses raised by the defendant, as well as those set out in the complaint, in which case an instruction that, if the evidence is equally balanced on any point necessary to a recovery by the plaintiff, the verdict must be for the defendant, is incorrect, and is properly refused.™ Such an instruction may also be properly refused, where other instructions have been given at defendant's request, requiring the plaintiff to prove his cause by a preponderance of the evidence 'in order to recover.** Such an instruction requires the plaintiff to prove each paragraph of his complaint by a preponderance of the evidence. An instruction on the burden of proof that, if the evidence as to either paragraph of the complaint is equally balanced so that it does not preponderate on either side, they should find for de- fendant is properly refused,*^ and an instruction that a prepon- derance of evidence is sufficient to authorize a verdict, and if the evidence is nearly equally balanced the jury may determine where the preponderance is from the credibility of the witnesses whose testimony is in conflict, is not objectionable on the ground that it ' 78 Hillyard v. Bair, 155 P. 449, 47 so Porter v. St. Joseph Stockyards Utah, 561. Co., Ill S. W. 1136, 213 Mo. 372 ; T! Dixon V. Great Falls & O. D. Ry. Blitt v. Heinrich, 33 Mo. App. 243; Co., 43 App. D. C. 206 ; Royal Trust Hamel v. Brooklyn Heights R. Co., 69 Co. V. Overstrom, 120 111. App. 479: N. Y. S. 166, 59 App. Div. 185; In- Jones V. Angell, 95 Ind. 376 ; Renard ternational & G. N. Ry. Co. v. Davis V. Grande, 64 N. E. 644, 29 Ind. App. (Tex. Civ. App.) 84 S. W. 669; Inter- 579. national & G. N. R. Co. v. VlUareal, 7 8 Brodie v. Connecticut Co., 87 82 S. W. 1063, 36 Tex. Civ. App. 532. ' A. 798, 87 Conn. 863 ; City of Streat- 'Where the court has charged or V. Liebendorfer, 71 111. App. 625; that the burden of proof is ou Drena v. Travelers' Ins. Co., 183 N. Y. plaintiff, it Is proper to refuse a fur- S. 439, 192 App. Div. 703; Schaefer ther instruction that "if, upon the v. Metropolitan St. Ry. Co., 69 N. T. whole evidence, your minds are equal- S. 980, 34 Misc. Rep. 554; Brockman ly balanced, and you are unable to V. Metropolitan St. Ry. Co., 66 N. Y. say tihat the preponderance of the evi- S. 339, 32 Misc. Rep. 728. ' dence is in favor of plaintiff, then you 7 9 Richelieu Hotel Co. v. Interna- will find for defendant." Gulf, C. & tional Military Encampment Co., 140 S. F. Ry. Co. v. Locker, 78 Tex. 279, 111. 248, 29 N. E. 1044, 33 Am. St. Rep. 14 S. W. 611. 234 ; Hickey v. Rio Grande Western si Mortimer V. Daub, 98 N. E. 845, Ry. Co., 82 P. 29, 29 Utah, 892. 52 Ind. 30. 491 INSTRUCTIONS ON DEGREE OF PROOF §254 tells the jury that if the evidence is equally balanced they may find for the plaintiff.** *, § 254. Instructions objectionable or criticized as requiring less than a preponderance of the evidence or as permitting jury to speculate upon probabilities Instructions which require less than a preponderance of the evidence to sustain the burden of proof of the essential facts in the case, or which have a tendency to lead the jury to think that less is required, are equally erroneous with instructions which de- mand more than such a preponderance.** Thus an instruction in effect that, although the jury must be satisfied, it may be done by less than a preponderance of the evidence, is erroneous,** and an instruction that one is entitled to a verdict if his plea is sustained by the "weight" of evidence is incorrect ; the word "weight" not being synonymous with "preponderance." *^ An instruction which permits the jury to speculate upon probabilities, or to balance one ' probability against another, in arriving at a verdict, instead of telling them to find the facts from' a preponderance of the evi- dence, is improper.*® 8 2 Johnson v. People, 140 111. 350, 29 N. E. 895. 83 Eaflibun v. White, 107 P. 309, 157 Cal. 248; Grant v. Rowe, 83 Mo. App. 560. Mere lielief . It is improper to in- struct that, if the jury "believe from the evidence" certain facts, certain consequences will follow, as a mere belief is not sufficient on which to found a verdict. Sossamon v. Cruse, 45 S. E. 757, 133 N. C. 470. Instructions not objectionable as autborizing recovery without regard to the -weigbt of the evi- dence. An instruction that "prepon- derance of proof! means that the jury are persuaded of the soundness of tte claim more satisfactorily than the contrary was not objectionable in not employing the word "weigh," nor as implying that the jury might be per- suaded by argument rather than the facts, as the jury could understand the term "persuaded" only to mean that the proof must be more persua- sive and convincing. Toledo, St. L. & W. E. Co. V. Kountz (C. C. A. Ohio) 168 F. 832, 94 C. C. A. 244. In an action for slander, an instruction that the plaintifE must prove by a pre- ponderance of the evidence that the defendant spote the words alleged, and when plaintiff proves "to the sat- isfaction of the jury that defendant falsely spoke the words," etc., is not erroneous, in that the quoted words authorized a recovery without regard to the weight of the evidence, where in other instructions the jury were also told that they must base their findings of the facts and their ver- dict on the evidence. Ohilds v. Childs, 94 P. 660, 49 Wash. 27. 8* Blue Ridge Land Co. v. Floyd, 88 S. B. 862, 171 N. C. 543. 85 Street v. Sinclair, 71 Ala. 110 ; Shinn v. Tucker, 37 Ark. 580. 8 6 Ala. Going v. Alabama Steel & Wire Co., 37 So. 784, 141 Ala. 537. Ga. Parker v. Johnson, 25 Ga. 576. 111. Warner v. Crandall, 65 111. 195; Boon v. Bliss' Estate, 98 111. App. 341. Iowa. Butler v. Chicago & N. W. Ry. Co., 71 Iowa, 206, 32 N. W. 262. Mass. Haskins v. Haskins, 9 Gray, 390. • Duty to tell jury that evidence must satisfy them.. Where the probabilities either way, In an issue § 255 INSTBDCTIONS TO JURIES 492 § 255, Number of witnesses as element in determining prepon- ponderance of evidence In most jurisdictions an instruction that the jury, in determin- ing the preponderance of the evidence, may take into consideration the numerical preponderance of the testimony on one side or the other, is not improper,*' and in a proper case it will be error to refuse such an instruction.** Ordinarily, however, in the. ab- sence of any request so to instruct,** or where the conflict between the greater number of witnesses and the lesser is not of a positive or decided character,** it will not be error for the court to fail to call attention to the numerical inequality of the witnesses. Instructions having a tendency to lead the jury to think that the value of testimony or the preponderance of the evidence is to be determined by a count of the witnesses are erroneous.*^ Such an instruction is not rendered proper by the assumption that the witnesses are of equal credibility,** since credibility refers only to the integrity of the witness, and does not imply that he has in- telligence or knowledge, or opportunity for knowledge, of the particular facts in the case ; ** and in some jurisdictions such an of facts before the jury, are weak, it is error to direct the jury to find the fact by the greater probability, with- out an instruption that the evidence must satisfy them that the fact ex- ists. Dunbar v. McGill, 64 Mich. 6T6, 31 N. W. 578. 87 Osberg v. Cudahy Packing Co., 198 111. App. 551. S8 Johnson y. Chicago City Ey. Co., 166 111. App. 79 ; Harvey v. McQuirk, 158 111. App. 50 ; Waskiewicz v. Pub- lic Service Ky. Corporation, 78 A. 159, 80 N. J. Law, 694. In FennsylTania it is held that, where the numerical preponderance of medical testimony favors the con- tention of one of the parties, this should be pointed out to the jury, leaving to them the credibility of the witnesses and the final determina- tion of the question whether the weight of the evidence is on one side or the other. Frysinger v. Philadel- phia Rapid Transit Co., 95 A. 257, 249 Pa. 555; Benson v. Altoona & L. V. E. Ry. Co., 77 A. 492, 228 Pa. 290. 8 9 Mills V. Pope, 93 S. E. 559, 20 Ga. App. 820 ; Mcintosh v. Mcintosh, 79 Mich. 198, 44 N: W. 592. so Eastman v. Washington & C, Ry. Co., 37 Pa. Super. Ct. 287. 81 Fengar v. Brown, 57 Conn. 60, 17 A. 321; Phenix v. Castner, 108 111. 207; Fritzinger v. State, 67 N. B. 1006, 31 Ind. App. 350; Hoskovee v. Omaha St. Ry. Co., 115 N. W. 312, 80 Neb. 784; O'Brien v. State, 42 A. 841, 63 N. J. Law, 49. Instructions improper Tvitbin rnle. Where six witnesses testified in favor of one party, and three in favor of the adverse party, an in- struction defining a preponderance of the evidence as the greater weight thereof, "and necessarily the greater number of witnesses," was mislead- ing. Heald v. Vvestern Union Tele- fei„ph Co., 105 N. W. 588, 129 Iowa, 326. Instructions not improper with- in rule. Instruction that the jury was to bear in mind the number of witnesses in determining the prepon- derance of proof, and that by prepon- derance was not necessarily meant the greater number of witnesses. Uanton v. Pacific Electric Ry. Co., 174 P. 61, 178 Cal. 616. »2Bierbach v. Goodyear, Rubber Co., 54 Wis. 208, 11 N. W. 514, 41 Am. Rep. 19. 9 3 Madden v. Saylor Coal Co., Ill N.'W. 57, 133 Iowa, 699; Schmitt v. 493 INSTRUCTIONS ON DEGREE OF PROOF §255 instruction is not redeemed by the fact that it is based on the hy- pothesis that all other things are equal,** or that the witnesses are of equal candor, fairness, intelligence, and credibility, With equal knowledge and opportunities for knowledge,^^ as the jury are thereby prevented from considering all the corroborating circum- stances.*® Conversely it is proper to tell the jury that the preponderance' of the evidence is not determined solely or necessarily by the number of witnesses testifying on either side,*' the jury being at the same time told the various elements entering into such pre- ponderance, including the number of witnesses,** and it is gen- erally held that an instruction to the effect that the jury should be governed by the quality of the testimony rather than by the num- ber of the witnesses is not improper.** Milwaukee St. Ry. Co., 89 Wis. 195, 61 N. W. 834. 91 Harman v. Appalachian Power Co., 86 S. E. 917, 77 w . Va. 48. »5 Indianapolis Abattoir Co. v. Neidlinger, 92 N. E. 169, 174 Ind. 400; Warren Const. Co. v. Powell, 89 N. E. 857, 173 Ind. 207. »6 Indianapolis & E. Ry. Co. v. Ben- nett, 79 N. E. 889, 39 Ind. App. 141. »7 Newhouse Mill & Lumlier Co. v. Keller, 146 S. W. 855, 103 Ark. 538; People V. Chun Heong, 86 Cal. 329, 24 P. 1021 ; Dunbar v. Jones, 87 A. 787, 87 Conn. 253 ; Money v. Seattle, R. & S. Ry. Co., 109 P. 307, 59 Wash. 120. »8 Martin v. Vaught, 194 S. W. 10, 128 Ark. 293; Mitchell v. Hindman, 150 111. 538, 37 N. B. 916 ; Strohmeyer V. Jamison, 208 111. App. 612; Gordon V. Stadelman, 202 111. App. 255 ; Mey- er V. Mead, 83 111. 19; McOowan v. Northeastern Siberian Co., 84 P. 614, 41 Wash. 675. Instrnctiong held proper tvithin rnle. An instruction that the jury were not bound to decide in conform- ity with the declarations of any num- ber of witnesses which did not pro- duce conviction in their mindS against a less number, or against a presump- tion of law, or other evidence satisfy- ing them; in other words, that it was not the greater number of witnesses that should control where their testi- mony was not satisfactory to the jury against a less number whose testi- mony did satisfy them, and that it was upon the quality, rather than the quantity or number, of witnesses that the jury should act. People v. Bot- kin, 98 P. 861, 9 Cal. App. 244. An instruction that the weight of the testimony does not necessarily depend on the greater number of witnesses, but that the jury may consider all the facts and circumstances appear- ing from the evidence, and determine from that which of the witnesses are ehtitled to the greater weight, and that, if they believe that the evidence of the smaller number of witnesses on one side is more credible than the tes- timony of a greater number of wit- nesses on the other side, then the evi- dence preponderates on the side of the smaller number of witnesses. St. Louis & O. Ry. Co. v. Union Trust & Savings Bank, 70 N. E. 651, 209 111. 457. An instruction that the jury may consider the greater number of vs^itnesses that may testify on one side or the other of contested issues, but that the preponderance of evidence is not necessarily with the greater num-: ber of witnesses, but it is that supe- rior weight of evidence that inclines the minds of the jurors to accept one side in preference to the other, re- gardless of the number of witnesses. Quiggle V. Viming, 54 S. E. 74, 125 Ga. 98. 8 8 Kansas City, M. & B. R. Co. v. Crocker, 95 Ala. 412, 11 So. 262 ; Bro- dle V. Connecticut Co., 87 A. 798, 87 Conn. 363; Belk v. Cooper, 34 111. § 255 INSTRUCTIONS -TO JURIES ,494 On the other hand, the court should not unduly minimize the effect of the, numerical inequality of the witnesses,^ and an in- struction which is so framed as to tend to lead the jury to believe that they are not to consider the number of witnesses, or which is susceptible of the inference that the number of witnesses upon any given question is of no consequence, is erroneous,* and if the court, •undertakes to inform the jury of the elements to be considered in determining the preponderance of the evidence, it should include the element of the number of the witnesses.* In one jurisdiction,. App. 649; Crowley v. Burlington, C. R. & N. Ey. Co., 65 Iowa, 658, 20 N. W. 467, 22 N. W. 918 ; Divv«r v. Hall (City Ct. N. y.) 46 N. Y.-%. 533, 20 Misc. Rep. 677, reversed (Sup.) 47 N. Y. S. 630, 21 Misc. Rep. 452. In Washington, however, such an instruction is considered erroneous, as being misleading and confusing. Gilmore v. Seattle & R. Ry. Co., 69 P. 743, 29 Wash. 150. One credible witness as against many believed to be untruthful. Where there was conflict in evidence on questions of fact, an instruction that testimony of one credible witness is entitled to more weight than the testimony of many others, if the jurjf have reason to believe that such wif- nesses have knowingly testified un- truthfully, is proper. Kemp v. Slo- cum, 110 N. W. 1024, 78 Neb. 440. 1 Hodder v. Philadelphia Rapid Transit Co., 66 A. 239, 217 Pa. 110. 2 Dupuis V. Saginaw Valley Trac- tion Co., 109 N. W. 413, 146 Mich. 151; Pennington v. Glllasple, 66 S. E. 1009, 66 W. Va. 643; Garske v. Town of Ridgeville, 102 N. W. 22, 123 Wis. 503, 3 Ann. Cas. 727. Omission of iirord "necessarily," An instruction to a jury commencing, "By a preponderance of proof, the court does not mean a larger number of witnesses on a given point," is mis- leading because omitting the word "necessarily" before the word "mean." Gallagher v. Singer Sewing Mach. Co., 177 111. App. 198. 8 Chicago Union Traction Co. v. Hampe, 81 N. E. 1027, 228 111. 346; Neville v. Chicago & A. R. Co., 210 111. App. 168; Horstman v. Chicago Rys. Co., 210 111. App. 144 ; Dodge v. Bruce, 208 111. App. 570 ; Richards v. Illinois Cent. R. Co., 197 111. App. 282 ; Doyle V. Chicago City Ry. Co., 189 111. App,. 438; De Joannis v. Domestic Engi- neering Co., 185 111. App. 271 ; O'Don- oghue V. City of Chicago, 167 111. App. 349 ; Thompson v. JDering Coal Co., 158 111. App. 289; Fisher v. City of Geneseo, 154 111. App. 288 ; Andreicyk , V. Chicago & E. I. R. Co., 150 111. App. 539; Cummins v. Cleveland, C, C. & St. L. Ry. Co., 147 111. App. 291; Illinois Commercial Men's Ass'n v. Perrin, 139 111., App. 543; Sullivan v. Sullivan, 139 111. App. 378. Instructions improper within rule. An instruction which, ' after stating that the preponderance of the evidence does not necessarily depend on the number of witnesses testifying on either side, undertakes to enumer- ate the things the jury may take into consideration in determining on which side the preponderance of the evidence is, and in such enumeration entirely omits any reference to the number of the witnesses as one of those elements, where the number of witnesses is important, is error, as tending to lead the jury to believe that such number is not to be coasid- ered at all. Devine v. City of Chica- go, 178 111. App. 39; Zamiar v. Peo- ple's Gaslight & Coke Co., 204 111. App. 290; Lyons v. Joseph T. Rver- son & Son, 90 N. E. 288, 242 111. 409.' An instruction "that the weight of the testimony-does not necessarily depend upon the greater number of witnesses sworn on either side of the question in dispute," but that the jury are at liberty, as Jurors, to consider all the facts and circumstances appearing from the evidence in the case and de- termine from tiiat which of the wit- nesses are worthy of the greater cred- ^93 INSTRUCTIONS ON DEGREE OF PROOF § 257 Iwwever, the later cases have repudiated • the numerical test of the preponderance of the evidence, and in this jurisdiction it is proper to instruct without qualification that such preponderance does not depend upon the number of witnesses and does not mean l!he greater number of witnesses.* § 256. EiTect of error in defining preponderance of evidence The mere fact that the charge of the court is technically faulty in defining preponderance of proof, is not ground for reversing the judgment if the jury are not misled^ or if the case a:s a whole is fairly presented to them, and especially if their verdict is obvious- ly correct.^ So, where instructions have been given properly lay- ing, down the rule of preponderance of evidence and defining it, the use of. words in other instructions implying the necessity of a higher degree of proof than that involved in a mere prepon- derance may be harmless error.* B. Doctrine of Reasonable-Doubt in Criminai, Cases 1. Necessity of Instructions Requiring Proof Beyond a Reasonable ■* Doubt § 257. General rule The jury should be left in no uncertainty in a criminal prosecu- tion as to their duty to acquit the defendant if they are not con- vinced of his guilt beyond a reasonable doubt,' and ordinarily it itV Eidem v. Chicago, E. I. & P. Eyl versible error, except wbere the ele- Co., 144 111. App. 320. ment of the number of witnesses Is ' InstmctioiLs not improper with- shown to be important. Powell v. Al- in rule. An instruction that the pre- ton & S. R. R., 203 111. App. 60. ponderance of the evidence "is not * Vivian Collieries Co. v. Cahall, alone to be determined by the num- 110 N. E. 672, 184 Ind: 473;' Model ber of witnesses" testifying to a par- Clothing House v. Hirsch, 85 N. B, ticular state of facts, and naming sev- 719, 42 Ind. App. 270. eral of the elements which the jury = Patrick Red -Sandstone Co. v. Sko- should consider in determining where man, 1 Colo.. App. 323, 29 P. 21. the preponderance lay, was not objec- « In re Goldthorp's Estate, 88 N. W. tionable on the ground that it omitted 944, 115 Iowa, 430. the element of the number of witness- ^ Ala. Smith v. State, 59 So. 190, es testifying to any particular fact or 4 Ala. App. 678 ;, Campbell v. State, state of facts. Chicago City Ry. Co; 54 So. 107, 170 Ala. 55 ; Birt v. State, V. Bundy, 71 N. E. 28, 210 lU. 39, 46 So. 858, 156 Ala. 29. affirming judgment 109 111. App. 637 ; Ark. Woodland v. State, 160 S. Kravitz v. Chicago City Ry. Co., 174 W. 875, 110 Ark. 15. 111. App. 182. Ky. Hudson v. Commonwealth, Harmless error. The omission 170 S. W. 620, 161 Ky. 257. from an instruction as to determining La. State v. Hagan, 22 So. 832, the preponderance of the evidence of 49 La. Ann. 1625. the niimber of witnesses as one of the Requiring; jury to be satisfied of elements to be considered is not re- defendant's innocence, An instruc- 257 INSTRUCTIONS TO JDEIBS 496 will be reversible error to fail so to instruct,* where a proper re- quest has been made for such an instruction;® this rule applying in misdemeanor cases." Accordingly it is error to direct the jury to find the defendant guilty, if from all the evidence they believe him to be so, without including the qualification that such belief must be so strong as to be beyond a reasonable doubt," and it is reversible error to re- tion requiring a jury to be satisfied of defendant's innocence before they should acquit him, and to convict him if they were satisfied of his guilt, is erroneous, as repealing the law of reasonable doubt. Long v. State, 115 P. 605, 4 Okl. Cr. xiii. 8 Ala. Boyd v. State, 43 So. 204, 150 Ala. 101. Ark. Bruce v. State, 75 S. W. 1080, 71 Ark. 475. Fla. Barker v. State, 83 So. 287, 78 Fla. 477. Ky. GatlifC v. Commonwealth, 107 S. W. 739, 32 Ky. Law Bep. 1063; Prater v. Commonwealth, 4 Ky. Law Rep. 344. Mich. People V. Yund, 128 N. W. 742, 163 Mich. 504. Mo. State v. Douglas, 167 S. W. 552, 258 Mo. 281 ; State v. Clark, 47 S. W. 886, 147 Mo. 20. Pa. Commonwealth v. Hoskins, 60 Pa. Super. Ct. 230. Tex. Fuller v. State, 113 S. W. 540, 54 Tex. Cr. B. 454; Logan v. State, 48 S. W. 575, 40 Tex. Cr. R. 85. » Ala. Parker v. State, 59 So. 518, 5 Ala. App. 64; Rosenberg v. State, 59 So. 366, 5 Ala. App. 196 ; Black v. State, 55 So. 948, 1 Ala. App. 168; Huckabee v. State, 53 So. 251, 168 Ala. 27; Davidson v. State, 52 So. 751, 167 Ala. 68, 140 Am. St. Rep. 17 ; White V. City of Anniston, 49 So. 1030, 161 Ala. 662; Welch v. State,. 46 So. 856, 156 Ala. 112 ; Griffin v. State, 43 So. 197, 150 Ala. 49 ; Young v. State, 43 So. 100, 149 Ala. 16; Walker v. State, 23 So. 149, 117 Ala. 42. Cal. People v. Dole, 55 P. 581, 122 Cal. 486, 68 Am. St. Rep. 50, revers- ing judgment 51 P. 945. Iowa. State v. Clark, 140 N. W. 821, 160 Iowa, 138; State v. Mathe- son, 120 N. W. 1036, 142 Iowa, 414, 134 Am. St. Rep. 426 ; State v. Bone, 87 N. W. 507, 114 Iowa, 537. Mo. State V. Reppetto, 66 Mo. App. 251. N. J. State V. Ackerman, 41 A. 697, 62 N. J. Law, 456. Pa. Commonwealth v. Hull, 65 Pa. Super. Ct 450. Tex. Elder v. State, 151 S. W. 1052, 68 Tex. Cr. R. 520; Jordt v. State, 95 S. W. 514, 50 Tex. Cr. R. 2. Duty to acquit unless jury be- lieve from evidence that accused is guilty. In a murder case, it was error to refuse a charge that, unless the jury believed from the evidence that accused was guilty, they should find him not guilty, since unless they believed beyond a reasonable doubt that accused was guilty, it was their duty to acquit, and they would have to believe guilt before they could be- lieve guilt beyond a reasonable doubt. Seawright v. State, 49 So. 325, 160 Ala. 33. , In Texas, in the trial of felonies, the doctrine of reasonable doubt should be given in charge to the jury. Whether asked or not. Treadway v. State, 1 Tex. App. 668; Robinson v. State, 5 Tex. App. 519. 10 Treadway v. State, 1 Tex. App. 668. 11 Ala. Huff V. State, 77 So. 939, 16 Ala. App. 345 ; Kennedy v. State, 70 So. 957, 14 Ala. App. 23. m. People V. Obermeyer, 190 111. App. 514; People v. Moore, 161 111. App. 56. Ky. Ball v. Commonwealth, 99 S. W. 326, 30 Ky. Law Rep. 600 ; Arnold V. Commonwealth, 55 S. W. 894, 21 Ky. Law Rep. 1566. Okl. Kimbrell v. State, 123 P. 1027, 7 Okl. Cr. 354; Remer v. State, 109 P. 247, 3 Okl. Cr. 706. Tenn. Frazier v. State, 100 S. W. 94, 117 Tenn. 430. Tex. Lewis v. State (Cr. App.) 231 S. W. 113. 497 INSTRUCTIONS ON DEGREE OP PROOF, § 258 fuse to charge that the burden is on the state to prove every ele- ment of the offense of which the defendant is accused beyond a reasonable doubt, where no other instruction is given stating the law of reasonable doubt.^* If the evidence of the state consists of statements of witnesses, of the truth of which the jury are in reasonable doubt, they cannot convict on such evidence, although they may not believe the wit- nesses of defendant, and the defendant is entitled to an instruc- tion to this effect.-** § 258. Qualifications of rule Where there is no dispute of fact on any material issue, and there is no possible room for uncertainty as to the guilt of the ac- cused, the court need not charge the doctrine ' of reasonable doubt," since the jury should not be coaxed into a doubt- by in- structions when there is no fofundation for it in the evidence.^^ Such an instruction may be rendered unnecessary by a presenta- tion in the argument of the counsel for the defendant of a state- ment of the rule to which the state has assented.^® In some jurisdictions it is not error to omit to charge the law of reasonable doubt, where no request for instructions on sucli subject is made,^'' and this is the general rule in prosecutions for misdemeanors.^* 12 People V. Cohn, 76 Cal. 386, 18 947, 85 N. J. Law, 104, judgment af- p. 410. firmed 92 A. 345, 86 N. J. Law, 706. In Alabama it has been held error Pa. Commonwealth v. Tresca, 31 to refuse to charge that the prosecu- Pa. Super. Ct 557; Same v. Di Sil- tion must prove every material fact , vestro. Id., 537, 556. charged In the indictment to a moral xex. Brown v. State (Or. App.) certainty, that it must satisfy the (55 g. -^7. goe. minds of the jury that defendant was ^5 g^ate v. Schoenwald, 31 Mo. 147. guilty beyond all reaeonable doubt, ^g g^.^^^ ^ Johnson, 48 N. 0. 266. and that, if the Jury can account for tvt„v,„„ ._ ototo qt <^ w 98.fi so his innocence upon any reasonable hy- ^ " Mab'^y ^- State, 97 S. W. 285, 80 pothesis, they must acquit. McAdory ^^^- f^°- ^ „^ ^ ,_ „ ,, V. State 62 Ala. 154. ^ \l United States v Manongahela IS Mills V. State, 55 So. 331, 1 Ala. Bridge Co. (D. 0. Pa-) 160 F 712, ^ P ,,Q judgment affirmed President, etc., of 14 r.ai PpoDle V Scott 141 P. 945, Monongahela Bridge Co. v. United 24 cfl Add 440 States, 30 S. Ot. 356, 216 U. S.,177, 54 Ga. ■ Wall V. State, 69 Ga. 766. L. Ed. 435 ; Burgess v. State (Tex. N. J. State V. Seifert (Sup.) 88 A. Or. App.) 42 S. W. 562. INST.TO JTJBIES— i?2 §259 INSTRUCTIONS TO JURIES 498 2. Su-fHciency of Instructions on Necessity of Proof Beyond a Rea- sonable Doubt Application of doctrine of reasonable doubt to defenses, see post, § 320. Instructions criticized as invading province of jury, see ante, § 66. § 259. General principles No particular formula need be followed in charging upon rea- sonable doubt.^* The governing principle to be observed in fram- ing instructions upon this subject is that at all times during the deliberations of the jury, until they have arrived at their verdict, the presumption of innocence attends the accused.*' If no such 19 State V. Dobbins, 62 S. E. 635, 149 N. G. 465. 2 People V. T. Wah Hing, 114 P. 416, 15 Gal. App. 195; Holmes v. State, 9 Tex. App. 313; Emery v. State, 78 N. W. 145* 101^ Wis. 627. Instructions held sufficient. On the question of reasonable doubt, it is sufficient to charge that the law- presumes the innocence of defendant, and that, before he can be convicted, the state is bound to establish its guilt of the crime charged beyond a reasonable doubt. State v. Haker, 37 S. W. 810, 136 Mo. 74. An instruction that before the jury can convict they must be satisfied beyond reasonable doubt that defendant is guilty of the crime as alleged ; that a charge of this nature is one peculiarly hard for a defendant to clear himself of; that from the nature of the case the prose- cutrix and defendant are usually the only witnesses; that the jury should be perfectly satisfied from the case made out by the witnesses and cor- roborating evidence, if any, before finding defendant guilty ; that, if not satisfied, they should acquit; and that the "reasonable doubt" mentioned is as foUo-yvs : "A defendant in a crim- inal action is presumed' to be innocent until the contrary is proved, by not the mere preponderance of evidence, but by evidence entirely convincing to the jury ; and, in case of a reason- able doubt whether his guilt is satis- factorily shown, he is entitled to an acquittal." People v. Lenon, 79 Oal. 625, 631, 21 P. 967. An instruction: "If you believe the evidence given in this case, in order to convict the cir- cumstances should be such as to pro- duce nearly the same degree of cer* tainty as that which arises from direct testimony, and to exclude a rational probability of innocence. The circumstances ought to be of such a nature as not to be reasonably ac- counted for on the supposition of the prisoner's innocence, but perfectly reconcilable with the supposition of the prisoner's guilt." State v. Nel- son, 11 Nev. 334. An instruction that "the presumption of' law is that the defendants are innocent, and this pre- sumption continues with them until it is overcome by evidence, beyond a rea,sonable doubt, that they are guilty as charged ; a reasonable doubt is not a mere possibility of a doubt, but it 'must be a reasonable doubt, growing out of all the evidence and circum- stances in evidence in the case." Chavez v. Terrjtpry, 6 N. M. 455, 30 P. 903. In a criminal prosecution, it is proper and sufficient, as a charge on reasonable doubt, to instruct that the law clothes defendant with a prp- sumption of innocence, which attends and protects him until it is overcome by evidence of his guilt beyond a rea- sonable doubt, which means that the evidence must be clear, positive, and abiding, and fully satisfy the minds and consciences of the jury ; that it is not sufficient to justify a verdict of guilty that there may be a strong sus- picion, or even probability of guilt, but the law requires proof producing a clear, undoubted, an entirely satis- factory conviction of guilt, the burden of establishing which is on the prose- cution ; and that, as the prosecution 499 INSTRUCTIONS ON DEGEBE OF PROOF § 259 direction has been given in its main charge, the court should ex- pressly charge, on request, that if the jury entertain a reasonable doubt of the guilt of the defendant they must acquit him.^^ It will not be error to fail to so charge in so many words, if such a direction can be clearly inferred from other instructions, given.** Instructions which imply that the doctrine of reasonable doubt is of questionable propriety,** or which permit the jury to weigh the evidence under the rule in civil cases,** or which are otherwise seeks a conviction on circumstantial evidence alone, the jury cannot con- vict unless the state has proven de- fendant's guilt beyond a reasonable doubt, by facts and circumstances con- sistent with each other and vs^ith hi? guilt, ai)d absolutely inconsistent with any reasonable theory of innocence. State V. Pyscher, 77 S. W. 836, 179 Mo. 140. A charge that "the defend- ant is entitled to the benefit of a reasonable doubt" ; that "the duty is on the state to prove to the satisfac- tion of the jury, beyond a reasonable doubt, that the defendant has com- mitted the specific crime with which she is charged in the indictment" ; that "if the state fails to do so, the defend- ant is entitled to an acquittaf'; that "you are to decide this case simply upon the evidence produced here, and in the consideration of that evidence to give the defendant the benefit of every reasonable doubt that arises in your minds as to the commission of the crime, and say on your oaths from the evidence whether she is guilty or not." Gardner v. State, 55 N. J. Law, 17, 26 A. 30. A charge that evidence is suffi- cient to remove a reasonable doubt when it convinces the judgment of an ordinarily prudent man of the truth of a proposition with such force that he would voluntarily apt upon that conviction, without hesitation, in his most important affairs. It would be unsafe to convict any person of a felony when the facts proved and the supposition of guilt simply afford a solution of what would otherwise be mysterious ; but, when the fact proved are susceptible of explanation, upon no reasonable hypothesis, consistent with innocence, and point to guilt be- yond any other reasonable solution, then they are sufficient to rest a con- viction upon, although the crime is of the utmost malignity and the penalty attached is the highest known to the law. This principle should guide the jury in determining the degree of an offence, as well as the question as to whether the accused is guilty of any offense. When there is a reasonable doubt whether a defendant's guilt has been satisfactorily shown, he must be acquitted; and, when there Is a rea- sonable doubt in which of two or more degrees of an offense he is guil- ty, he must be convicted of the lowest degree only. Stout v. State, 90 Ind. 1. 21 Duthey v. State, 111 N. W. 222, 131 Wis. 178, 10 L. R. A. (N. S.) 1032. 22 Mitchell V. State, 34 S. E. 576, 110 Ga. 272; State v. Taylor, 71 S. W. 1005, 171 Mo. 465; Winfield v. State, 72 S. W. 182, 44 Tex. Cr. R. 475. 23 State V. Kaufmann, 118 N. W. 337, 22 S. D. 433. Instructions not erroneous as depreciating a reasonable doubt. An instruction is not erroneous, as giving the jury an idea that a rea- sonable doubt is but a small thing, which states that it "does not mean anything more than" that the jury should be satisfied beyond a doubt which, as reasonable men, they would entertain in matters of moment to themselves; that the doubt should arise on an examination of the case, from either the evidence, statement of defendant, conflict in the evidence, or lack of evidence ; and that it does not mean the doubt of an eccentric mind, crank, or men with an oversensitive conscience. . Lewis v. State, 90 Ga. 93, 15 S. E. 697. 24 Ark. Jackson v. State, 126 S. W. 843, 94 Ark. 169. Ga. Ponder v. State, 90 S. E. 365, 18 Ga. App. 703. Mont. State v. Jones, 139 P. 441, §259 INSTRUCTIONS TO JURIES 500 calculated to deprive the defendant of the right to an acquittal in case the jury are not satisfied of his guilt beyond a reasonable doubt, are, of course, erroneous.*^ 48 Mont. 505; State v. Schnepel, 59 P. 927, 23 Mont 523. N. Y. People V. Stanley, 62 N. Y. S. 389, 30 Bllsc. Rep. 290. Pa. Commonwealth v. Deitrick, 70 A. 275, 221 Pa. 7; Commonwealth v. Stankus, 71 Pa. Super. Ct. 286. Instrnctions beld not oljectimi- able as authorizing a verdict upon a mere preponderance of tbe evi- dence. A charge that defendant can- not be convicted unless the state has overcome the presumption of Inno- cence, and has' made out every mate- rial allegation of the Indictment be- yond all reasonable doubt, and that satisfactory proof is required, and that no mere preponderance of testi- mony will be sufficient to warrant a conviction, unless so strong as to re- move all reasonable doubt of guilt. State v. Brown, 69 N. W. 277, 100 Iowa, 50. A charge, in a trial for theft, that "the credibility of witness- es and weight of evidence are commit- ted entirely to the jury, and by their conclusions therein, under the law given them by the court in charge, ^ they should determine their verdict." Webb v. State, 5 Tex. App. 65. Un- der an indictment for selling intoxi- cating liquors to an habitual drunk- ard, an instruction telling the jury "that the number of witnesses does not necessarily determine the weight of the evidence in any case," but the jury should consider all the evidence together, and determine from it "as to the weight of the evidence, and re- turn a verdict accordingly," is not ob- jectionable as authorizing a verdict of guilty upon a mere preponderance of the evidence, especially as other instructions distinctly told the jury the evidence must be such as to pro- duce belief "beyond a reasonable doubt." Brown v. People, 65 111. App. 58. ZBTJ. s. (0. C. A. La.) Adler v. United States, 182 F. 464, 104 0. 0. A. 608. Ala. Winter v. State, 20 Ala. 89. Cal. People v. Ferry, 84 Cal. 31, 24 P. 33. Miss. ' Gordon v. State, 49 So. 609, 95 Miss. 543. , Neb. Flege V. State, 142 N. W. 276, 93 Neb. 610, 47 L. R. A. (N, S.) 1106. Tex. Dobbs v. State, 100 S. W. 946, 51 Tex. Or. B. 113. Va. Waller v. Commonwealth, 84 Va. 492, 5 S. E. 364. Instructions insufficient irithin rule. A charge that the conclusion reached must be one which "thorough- ly disciplined judgments will concur in and no pure conscience will disap- prove." Batten v. State, 80 Ind. 394. On a prosecution for murder, an in- struction that, if the "minds and the consciences of the jury are fully satis- fled" of the existence of certain facts, they should convict. Jones v. State, 36 So. 243, 84 Miss. 194. An instruc- tion, abstract in form, which con- cludes by saying to the jury "and such guilt may be established by proof of facts and circumstances from which it may be reasonably inferred." Peo- ple V. Ezell, 155 111. App. 298. A charge, on a trial for incest, that "the law presumes every defendant to be innocent until his guilt is established beyond a reasonable doubt by proof. ^ In other words, when the state pre- fers a charge against a citizen, before he can be convicted, the burden is upon the state to show, by proof, to your satisfaction, the material ele- ments of the offense charged. If the proof in this case satisfies you" that defendant did the act charged, then defendant should be found guilty. Owen V. State, 89 Tenn. 698, 16 S. W. 114; Id., 89irenn. 704, 16 S. W. 115. An instruction that defendant must overcome any presumption, or estab- lish any defense, "to the satisfaction of the jury," is error, as denying him the benefit of any reasonable doubt which may arise from the evidence. Bishop V. State, 62 Miss. 289. A charge on reasonable doubt, that the evidence should be such as would con- trol and decide the conduct of reason- able men in the most important af- fairs of life, and not a mere conjec- ture, a trivial supposition, a bare pos- 501 INSTRUCTIONS ON DEGEBE OF PROOF 259 An instruction that if all the facts and circumstances, together with all the direct evidence relied on to secure a conviction, can sibility of the innocence of defendant, was not calculated to impress the Jury that defendant should satisfy them beyond a reasonable doubt of his Innocence. Clay v. State, 60 S. E. 1028, 4 Ga. App. 142. Instructions not improper with- in rale. An instruction that if, after a careful comparison and candid con- sideration of all the evidence, the jury had a doubt of defendant's guilt, it would then be their duty to deter- mine whether such doubt was reason- able, and, if they found that it was not a reasonable doubt, it would not be sufficient to acquit defendant. Shumway v. State, 117 N. W. 407, 82 Neb. 152, judgment affirmed on re- hearing 119 N. W. 517, 82 Neb. 166. A charge that the state is required to demonstrate by competent evidence and beyond a reasonable doubt the guilt of accused before the jury could convict him. McGirt v. State, 54 S. E. 171, 125 Ga. 269. An instruction that, "in case of a reasonable doubt whether defendant's guilt is satis- factorily shown, he Is entitled to an acquittal." People v. Wynn, 65 P. 126, 133 Oal. 72. An Instruction that, unless the jury believes from all the evidence beyond reasonable doubt that the defendant has been proved guilty, they will acquit. Renaker v. Commonwealth, 189 S. W. 928, 172 Ky. 714. A charge that to warrant a conviction each material circumstance and the fact of guilt must be estab- lished to the satisfaction of the jury beyond every reasonable doubt. Spick ' V. State, 121 N. W. 664, 140 Wis. 104. A charge which requires the jury to affirmatively believe beyond a reason- able doubt the facts necessary to show accused's guilt before they can convict him, and which gives the statutory charge on reasonable doubt. Mitchell V. State, 158 S. W. 815, 71 Tex. Cr. R. 241. An instruction that if the jury were satisfied beyond a reasonable doubt that accused was guilty of mur- der, but had a reasonable doubt whether it was committed under ex- press or implied malice, they must give accused the benefit of such doubt and not find him guilty of a higher grade than murder in the second de- gree, if he was guilty of any offense. Mingo V. State, 133 S. W. 882, 61 Tex. Cr. R. 14. A statement of the statu- tory doctrine of reasonable doubt in the court's charge, that in all criminal eases the burden of proof was on the state, that defendant was presumed innocent until his guilt was establish- ed by legal evidence beyond a reason- able doubt, and that in case the jury had a reasonable doubt as to defend- ant's guilt they should acquit. King V. State, 123 S. W. 135, 57 Tex. Cr. R. 363. An instruction that the law presumes defendant innocent until his guilt is proved beyond a reasonable doubt, and if on the whole case, or on any material fact necessary to estab- lish his guilt, there is a reasonable doubt of his guilt, they should find him not guilty. Hargis v. Common- wealth, 123 S. W. 239, 135 Ky. 578. A charge that to justify a conviction the jury must be convinced of accus- ed's guilt not by a preponderance of the evidence, but by testimony strong enough to convince them beyond a reasonable doubt. People v. Lalonde, 137 T:^. W. 74, 171 Mich. 286. In a prosecution for mule theft, defendant having claimed that he traded a pair of horses for the mules, an instruction that if the jury found from the evi- dence that defendant traded for the mules, or had a reasonable doubt as to whether he did or not, tiley should acquit him, sufficiently charged the . doctrine of reasonable doubt, in ac- cordance with the facts as defendant claimed them to be. Cleveland v. State, 123 S. W. 142, 57 Tex. Cr. R. 356. Accused's right to the benefit of reasonable doubt throughout the case, including the issue whether he wound- ed a witness to free himself or with intent to murder, was sufficiently covered by instructions that if the jury believed beyond reasonable doubt that the assault was unlawful, but had reasonable doubt as to whether it was with intent to murder or was an aggravated assault, accused was en- titled to the benefit thereof, and that one accused is presumed to be inno- cent until his guilt is shown beyond §259 INSTRUCTIONS TO JURIES 502 be reasonably accounted for on any theory consistent with the in- nocence of the defendant, the jury should acquit him, places too great a burden upon him, as all that he need do is to explain enough of the facts to raise a reasonable doubt.^® On request the court' reasonable doubt. Perry v. State, 133 S. W. 685, 61 Tex. Cr. R. 2. On a trial for the theft of a hog, a charge that, if neither of the hogs found in the pen of defendant belonged to the person named as owner in the indict- ment, the defeiidant would not be guilty, and that, if there was a rea- sonable doubt whether the hogs in de- fendant's pen were the property of such owner, defendant should be found not guilty, considered as a whole, sufficiently informs the jury that, if they had reasonable doubts of the ownership alleged, they should acquit defendant. HoUoway v. State, 140 S. W. 458, 63 Tex. Cr. R. 508. Where, on a prosecution for burglary, the court stated to the jury each fact essential to be proven by the state, and said that unless they believed, beyond a reasonable doubt, each of the facts, they must acquit the de- fendant; that nothing was to be taken by implication against the de- fendant; that the law presumed him innocent of the crime until he was proven guilty beyond a reasonable doubt, by competent evidence, and that, if the evidence left on the minds of the jury a reasonable doubt, they should acquit him, and that they must determine the question of his guilt from all the evidence in the .case; and that unless they could say, after a consideration of all the evi- dence in the case, that every essen- tial fact was proved beyond a reason- able doubt, they should find for the defendant — the instructions fully informed the jury as to their duty. State V. Simas, 62 P. 242, 25 Nev. 432. Where the court charged that, if the evidence or the lack of it left in the minds of the jury any rea- sonable doubt as to any of the facts required to be proved to sustain a conviction, they must acquit, an in- struction that while the jury were not to find defendants, or either of them, guilty, if they entertained a reasonable doubt of guilt, they were not to search for a doubt and go be- yond the evidence to hunt for doubts ; that a doubt referred to as reasonable was such a doubt as would naturally arise in the mind of a reasonable man on a candid, impartial consideration of all the evidence — was not errone- ous as leading the jury to believe that the state was not required to prove beyond a reasonable doubt the mate- rial elements of the offense. Van Wyk V. People, 99 P. 1009, 45 Colo. 1. Where the court correctly charged on presumption of innocence and the du- ty of the jury to convict only if con- vinced beyond a reasonable doubt of accused's guilt, an additional charge, ' on the jury being brought into court after some hours spent in consulta- tion, that cases were to be decided on the weight of evidence, not by count- ing witnesses, and that a single wit- ness might be more satisfying than half a dozen witnesses contradicting him, and that this was not a case of mistake, but some one had falsified, and that the jury might consider the motive of the prosecutor, if he had any motive, in making a false charge, was not misleading, as calculated to convey the impression that the jury could convict though they were not convinced beyond a reasonable doubt. Hack V. State, 124 N. W. 492, 141 Wis. 346, 45 L. R. A. (N. S.) 664. "Entirely satisfied" or "fully- satisfied." A statement, in an in- struction, that if, on full considera- tion of all the evidence, you are "fairly and clearly satisfied" of de- fendant's guilt, is equivalent to say- ing that the jury must be "entirely satisfied." People v. Ribolsi, 89 Cal. 492, 26 P. 1082. Defendant is given the full benefit of the doctrine of reasonable doubt by an Instruction that the jury must be "fully satisfied" of defendant's guilt before they can convict him; and if not "fully satis- fied" that he did the act charged, they must acquit. State v. Charles, 76 S. E. 715, 161 N. C. 286. 20 Horn v. Territory, 56 P. 846, 8- Okl. 52. 503 INSTRUCTIONS ON DEGREE OF PROOF § 259 may be required to charge that before the jury can convict a de- fendant the evidence must be so convincing as to lead the minds of the jury to the conclusion that he is guilty,^'' or that the hy- pothesis of the defendant's guilt should flow naturally from the facts proven and be consistent with all the facts in the case.^» Instructions which reduce the question of reasonable doubt to a mere matter of belief/' or which state in effect that all doubts as to the guilt of the defendant are prima facie unreasonable,'*" or that the jury are to determine the question of reasonable doubt from a consideration of the evidence of the state alone, *i are er- roneous. The charge should be so framed as not to deprive the defend- ant of any reasonable doubt which may enter the mind of a juror, during the process of sifting out the evidence unworthy of belief, upon the consideration of any item of evidence, and as not to confine the jury to a reasonable doubt arising, after such sifting out process has been completed, on a consideration of the evidence remaining.** It is error to refuse to charge that, if the. evidence of the state consists in the statements of witnesses of the trutji of which the jury have a reasonable doubt, they cannot convict thereon, although they may not believe the witnesses for the de- fendant.** The accused is entitled to an instruction that, if the jury can reconcile the evidence upon any other reasonable theory or hypothesis than that of the guilt of the defendant, it will be their duty to acquit him.** Instructions tending to lead the jury to suppose that the doc-- trine of reasonable doubt does not apply, unless they believe the defendant to be innocent, are erroneous.*^ Accordingly an instruc- 2 7 Willis V. State, 33 So. 226, 134 so Hose v. State, 13 Ohio Cir. Ct. R. Ala. 429. 342, 7 O. C. D. 226. 28 Neilson v. State, 40 So. 221, 146 si People v. Lee, 93 N. E. 321, 248 Ala. 683. 111. 64. 29 Ala. Burton v. State, 107 Ala. 32 Commonwealtli v. Colandro, 80 A. 108, 18 So. 284 ; Jackson v. State, 571, 231 Pa. 343. 106 Ala. 12, 17 So. 333 ; Shields v. ss Mills v. State, 55 So. 331, 1 Ala. State, 104 Ala. 35, 16 So. 85, 53 Am. App. 76. St. Rep. 17; Carr v. State, 104 Ala. 4, s4 Neilson v. State, 40 So. 221, 146 16 So. 150 ; Harris v. State, 100 Ala. Ala. 683 ; Sanford v. State, 39 So. 129, 14 So; 538; Heath v. State, 99 370, 143 Ala. 78; Larrance v. People, Ala. 179, 13 So. 689; Hooks v. State, 78 N. E. 50, 222 111. 155; Schwantes 99 Ala. 166, 13 So. 767 ; Pierson v. v. State, 106 N. W. 237, 127 Wis. 160. State, 99 Ala. 148, 13 So. 550; Green ssBartels v. State, 136 N. W. 717, V. State, 97 Ala. 59, 15 So. 242. 91 Neb. 575 ; State v. Schreiber, 75 A. Ky. Claxon v. Commonwealth, 30 476, 79 N. J. Law, 447. S. W. 998. Instmctions not improper with- Miss. Jeffries v. State, 28 So. 948, in rule. An instruction that the rule 77 -Miss. 757 ; Webb v. State, 73 Miss, of reasonable doubt "was not intend- 456 19 So. 238. ed to shield those who are actually §259 INSTRUCTIONS TO JUEIES 504 tion requiring a belief in the innocence of the defendant in order to acquit him is improper.*® Special instructions, the tenor of which is constantly to ad;tnon- ish the jury against entertaining an unreasonable doubt, there being no corresponding caution against convicting the defendant if a reasonable doubt of his guilt exists, are cause for reversal, although no instructions are asked on the subject of reasonable doubt,*' and an instruction, in, a misdemeanor case, tending to authorize a conviction on slighter evidence than in a prosecution for a felony, is erroneous.** On the other hand, instructions which require an acquittal re- gardless of whether the jury entertain a reasonable doubt of the guilt of the accused,*' or which tend to lead the jury to think that a higher degree of proof of guilt than that which satisfies beyond a reasonable doubt is required,*" or which tell the jury to acquit unless they are absolutely certain of the guilt of the defendant,*^ guilty from just and merited punish- ment, but is a humane provision of the law which is intended for the pro- tection of the innocent, and to guard, so far as human agencies can, against the conviction of those unjustly ac- cused of crime." Cook v. State, 82 N. E. 1047, 169 Ind. 430. 86 Weber v. State, 101 P. 355, 2 Okl. Or. 329; Smith v. State, 9 Tex. App. 150; Robertson v. Same, 9 Tex. App. 209. 87 Cross V. State, 31 N. B. 473, 132 Ind. 65. 88 People V. Chartofe, 75 W. Y. S. 1088, 72 App. Div. 555. so Way v. State, 46 So. 273, 155 Ala. 52. *o Ala. Terry v. State, 69 So. 370, 13 Ala. App. 115; Olive v. State, 63 So. 36,. 8 Ala. App. 178; Dungan v. State, 57 So. 117, 2 Al^. App. 235; Patton V. State, 46 So. 862, 156 Ala. 23; Rigsbjr v. State, 44 So. 608, 152 Ala. 9; Gordon v. State, 41 So. 847, 147 Ala. 42 ; Thayer v. State, 35 So. 406, 138 Ala. 39; McCormack v. State, 32 So. 268, 133 Ala. 202; Talbert v. State, 25 So. 690, 121 Ala. 33 ; Peag- ler V. State, 110 Ala. 11, 20 So. 363. Cal. People v. Gibson, 178 P. 338, 39 Cal. App. 202. Iowa. State v. Debolt, 73 N. W. 499, 104 Iowa, 105. la. State v. Johnson, 29 So. 24, 104 La. 417, 81 Am. St. Eep. 139. Full belief. An instruction that no preponderance nor any weight of preponderant evidence is sufficient to support a conviction, unless it gener- ates full belief of the facts necessary to constitute guilt of accused to the exclusion of all reasonable doubt, was properly refused as requiring too high a degree of certainty in the use of the word "full." McDonald v. State, 51 So. 629, 165 Ala. 85. 41 Ala. Keith v. State, 72 So. 602, 15 Ala. App. 129i; McEwen v. State, 44 So. 619, 152 Ala. 38; Allen v. State, 111 Ala. 80, 20 So. 490; Jack- son v. State, 18 So. 728; Webb v. State, 106 Ala. 52, 18 So. 491 ; Thom- as V. State, 107 Ala. 13, 18 So. 229; Ross V. State, 92 Ala. 28, 9 So. 357, 25 Am. St. Rep. 20 ; Whatley v. State, 91 Ala. 108, 9 So. 236. D. C. United States v. Heath, 20 D. 0. 272. InstTuotions impropei< within rule. An instruction that, to war- rant a conviction, the evidence must be "absolutely Incompatible with the innocence of the accused." Cornish v. Territory, 3 Wyo. 95, 3 P. 793. On a trial for murder, it is proper to refuse requests to charge requiring facts to be established by evidence equivalent to "absolute and positive proof." People v. Benham, 55 N. B 11, 160 N. r. 402. An instruction re- quiring the jury to find accused not 505 INSTRUCTIONS ON DEGEEB OF PROOF §259 or which direct the jury to acquit unless the evidence excludes every reasonable "supposition" except that of guilt « or which permit a reasonable doubt on a consideration of only part of the evidence," or on a view of something outside of the evidence,** or which require the jury to be satisfied beyond a reasonable doubt of the truth of the facts alleged in all the counts of the in- dictment, when proof of the facts alleged in either count is suffi- cient upon which to base a conviction,** or which predicate an guilty unless the evidence generated a full belief as to his guilt. Zucker- man v. People, 72 N. E. 741, 213 111. 114. A charge that "the state is bound to prove every material fact necessary to constitute the guilt of the defendant fully, clearly, conclu- sively, satisfactorily, and to a moral certainty ; and if, on the whole evi> dence adduced, the jury cannot say that they have an abiding conviction to a moral certainty of the guilt of the defendant, the jury are bound to give him the benefit of the doubt and acquit him." Dennis v. State, 23 So. 1002, 118 Ala. 72. A charge vyhich requires full proof of guilt. Brooks v. State, 62 So. 569, 8 Ala. App. 277, judgment reversed 64 So. 2^, 185 Ala. 1. An instruction to the jury that "their opinion of the guilt of the de- fendant, based upon the evidence in this case, must nearly approach ab- solute certainty; that is, a condition of their minds so perfect, complete, and unconditional as to exclude the possibility of a doubt." People v. Smith, 105 Cal. 676, 89 P. 38. No error can be predicated on the refusal to define a reasonable doubt as "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," since the v^ord "certainty" therein is unqualified by the terms "reasonable and moral." State v. Powers, 37 S. E. 690, 59 S. C. 200. In a homicide case, an instruction, that no proof of guilt will satisfy the demands of the law if It does not convince the jury beyond reason- able doubt that the defendant is necessarily guilty, was properly re- fused, as the use of the word "neces- sarily" in effect asserted that the evi- dence must esclude all doubt of guilt. Daniel v. State, 71 So. 79, 14 Ala. App. 63, certiorari denied Ex parte Daniels, 72 So. 1019, 196 Ala. 700. < 2 Watson V. State, 72 So. 569, 15 Ala. App. 39; Diamond v. State, 72 So. 558, 15 Ala. App. 33, certiorari denied (Sup.) Ex parte State, 73 So. 1002, 198 Ala. 694; Richardson v. State, 68 So. 57, 191 Ala. 21; Mc- Cutcheon v. State, 59 So. 714, 5 Ala. App. 96; Sherrill v. State, 35 So. 129, 138 Ala. 3. *3Ala. Williams v. State, 69 So. 376, 13 Ala. App. 133; Dodson v. State, 65 So. 206, 10 Ala. App. 255; Roden v. State, 59 So. 751, 5 Ala. App. 247 ; Baker v. State, 58 So. 971, 4 Ala. App. 17; Deal v. State, 34 So. 23, 136 Ala. 52. Fla. Hall v. State, 83 So. 513, 78 Pla. 420, 8 A. L. R. 1234. ** Conner v. State, 65 So. 309, 10 Ala. App. 206; Long v. State, 23 Neb. 33, 36 N. W. 310. Instrnctiong not improper iritb- in rnle. An instruction that a rea- sonable doubt is such a doubt as naturally arises after considering all the evidence introduced, when review- ed in the light of. all the facts and circumstances surrounding the same, was not erroneous, in that it permit- ted the jury to consider all the facts, whether in evidence or not. State v. Case, 96 Iowa, 264, 65 N. W. 149. Instruction that one accused is pre- sumed innocent till proven guilty be- yond a reasonable doubt, and that pre- sumption attends him till you find', beyond a reasonable doubt, that he is guilty, does not allow conviction on anything other than the evidence; "proven" meaning established by com- petent and satisfactory evidence. People v. Riker, 168 N. W. 434, 202 Mich. 377. *5 Littleton v. State, 29 So. 390, 128 Ala. 31. §259 INSTRUCTIONS TO JURIES 506 acquittal upon a reasonable doubt of the guilt of a third person,** are erroneous, and are properly refused, and it is proper to in^ struct that the guilt of an accused need not be shown to an abso- lute certainty.*' Instructions should expressly characterize the doubt which will authorize or require the acquittal of an accused as a reasonable one,** and should indicate what facts are to be proven beyond a reasonable doulit,** and should be predicated upon a fair and im- partial comparison and consideration of the evidence.^" An in- struction on reasonable doubt need not be applied in express terms to the concrete facts in the case,®^ and as a general rule such an instruction which substantially follows the language of a statute prescribing the effect of such a doubt will sufficiently protect the *sMoye v. State, 67 So. 716, 12 Ala. App. 127. *7 Welsh V. State, 96 Ala. 92, 1] So. 450; GriflSn v. State, 89 S. E. 625 18 Ga. App. 402 ; Flannigan v. State, 79 S. E. 745, 13 Ga. App. 663 ; Parrish V. State, 14 Neb. 60, 15 N. W. 357. *s Ala. Minor v. State, 74 So. '98, 15 Ala. App. 556 ; Hardeman v. State, 70 So. 979, 14 Ala. App. 35 ; Givens v. State, 62 So. 1020, 8 Ala. App. 122; Perry v. State, 59 So. 150, 177 Ala. 1 ; Black V. State, 55 So. 948, 1 Ala. App. 168; Green v. State, 53 So. 284, 168 Ala. 104; Thomas v. State, 47 So. 257, 156 Ala. 166; Kirby v. State, 44 So. 38, 151 Ala. 65; Thomas v. State, 43 So. 371, 1.50 Ala. 81 ; Brown v. State, 43 So. 194, 150 Ala. 25 ; Shirley v. State, 40 So. 269, 144 Ala. 35; Gor- don V. State, 41 So. 847, 147 Ala. 42 ; Bowen v. State, 37 So. 233, 140 Ala. 65; McClellan v. State, 23 So. 653, H7 Ala. 140; Daughdrill v. State, 21 So. 378, 113 Ala. 7; Fleming v. State, 107 Ala. 11, 18 So. 268; Prince v. State, 100 Ala. 144, 14 So. 409, 46 Am. St. Rep. 28; Kidd v. State, 83 Ala. 58, 3 So. 442 ; Jones y. State, 79 Ala. 23. Fla. Ernest y. State, 20 Fla. 383. Kan. State v. Cassady, 12 Kah. 550. N. y. People V. Eeiss, 99 N. T. S. 1002, 114 App. Div. 431 ; People v. Benham, 55 N. E. 11, 160 N. Y. 402. Tex. Gibbs v. State, 1 Tex. App. 12. Instrnctions improper within rule. An instruction that a reason- able doubt is such a doubt as will cause a prudent man to hesitate be- fore he acts, and if there is "any doubt" accused must be acquitted. Carter v. State, 40 So. 82, 145 Ala. 679. An Instruction that accused was entitled to the legal presumption in favor of his innocence, which in doubtful cases was always sufficient to turn the scale. Woodland, v. State, 160 S. W. 875, 110 Ark. 15. A request- ed charge, that defendant be acquit- ted "if there is any doubt of the de- fendant's guilt which is not purely speculative doubt." Perry v. State, 91 Ala. 83, 9 So. 279. A requested instruction that if the evidence leaves in the mind of the jury any doubt as to the guilt of the defendant, or if after a fair consideration of the facts the guilt of the accused remains in doubt, they should acquit. Prior V. Territory, 89 P. 412, 11 Ariz. 169. An instruction that, if two persons were both charged with a homicide and the jury had a doubt which kill- ed decedent, it should give accused the benefit of the doubt and acquit him. Hunter v. State, 65 S. E. 154, 183 Ga. 78. 19 State V. Matheson, 120 N. W. 1036, 142 Iowa, 414, 134 Am. St. Rep. 426; Lamb v. State, 95 N. W. 1050, 09 Neb. 212. o» Claussen v. State, 133 P. 1055, 21 Wyo. 505, judgment affirmed on re- hearing 185 P. 802, 21 Wyo. 505. " State V. Amett (Mo.) 210 S. W. 82. 507 INSTRUCTIONS ON DEGREE OF PROOF 260 rights of the accused.^* Trial judges should adhere to the well- established precedents in framing or approving instructions on the subject of reasonable doubt,^* and it is error to refuse an in- struction which has been approved by the court of last resort, if the idea embodied therein has not been otherwise conveyed to the jury.^ § 260. Necessity of defining reasonable doubt In some jurisdictions it is not- necessary for the court, at least in the absence; of a request therefor, to define the phrase "reasona- ble doubt," ®® it being held that the phrase is self-explanatory,®" and that therefore such a definition can serve no useful pufpbse," and in some of the cases it is said that the court should not at- tempt to further clarify the term.^* 52 Ga. Butler v. State, 82 S. E. 654, 142 Ga. 286 ; Howell v. State, 52 S. E. 649, 124 Ga. 698. Ky. Mearns v. Commonwealth, 175 S. W. 355, 164 Ky. 213 ; Clary v. Same, 173 S. W. 171, 163 Ky. 48; Minniard v. Commonwealth, 164 S. W. 804, 158 Ky. 210; Wigglnton v. Com- monwealth, 114 S. W. 1185; Tetter- ton V. Commonwealth, 89 S. W. 8, 28 Ky. Law Kep. 146. Okl. Reeves v. Territory, 101 P. 1039, 2 Okl. Cr. 351 ; Douglas v. Ter- ritory, 98 P. 1023, 1 Okl. Cr. 583. Tex. Sanchez v. State, 153 S. W. 1133, 69 Tex. Cr. R. 134; Holmes v. State, 150 S. W. 926, 68 Tex. Cr. R. 17. 53 People V. BickerstafC (Cal. App.) 190 P. 656. 64Foglia V. People, 82 N. E. 262, 229 111. 286. 5 5 Ga. Bell v. State, 96 S. E. 861, 148 Ga. 352; Ponder v. State, 90 S. E. 363, 18 Ga. App. 703; Bice v. State, 84 S. E. 609, 16 wa. ^.pp. 128 ; Roberts v. State, 84 S. E. 122, 143 Ga. 71; Hall v. State, 77 S. E. 893, 12 Ga. App. 571; Thigpen v. State, 76 S. E. 596, 11 Ga. App. 846 ; Buckan- an V. State, 76 S. E. 73, 11 Ga. App. 756; Barker v. State, 57 S. E. 989, 1 Ga. App. 286; James v. State, 57 S. E, 959, 1 Ga. App. 779; Nash v. State, 55 S. E. 405, 126 Ga. 549; Bat- tle V. State, 29 S. B. .491, 103 Ga. 53. m. People V. Hansen, 104 N. E. 1069, 263 111. 44. Mo. State V. Wheeler, 87 Mo. App. 580, 582. Okl. Choate v. State (Cr. App.) 197 P. 1060. Pa. Commonwealth v. Berney, 103 A. 54, 262 Pa. 176. Teim. Butler v. State, 7 Baxt. 35. Tex. Marshall v. State, 175 S. W. 154, 76 Tex. Cr. R. 386. Vt. State V. Marston, 72 A. 1075, 82 Vt. 250 ; State v. Costa, 62 A. 38, 78 Vt. 198; State v. Blay, 58 A. 794. 77 Vt. 56. 51! Kan. State V. Killion, 148 P. 643, 95 Kan. 371 ; State v. Davis, 48 Kan. 1, 28 P. 1092. Micli. People V. Stubenvoll, 28 N. W. 883, 62 Mich. 329. Miss. Smith v. State, 60 So.' 330, 103 Miss. 356. Mo. State v. Robinson, 117 Mo. 649, 23 S. W. 1066. Okl. Gransd'en v. State, 158 P. 157, 12 Okl. Cr. 417. S. C. State v. Aughtrey, 27 S. E,, 199, 49 S. C. 285 ; State v. Aughtry, 26 S. E. 619, 49 S. C. 285. Tex. Massey v. State, 1 Tex. App. 563. 57 People V. Hotz, 103 N. E. 1007, 261 111. 239. 5 8 Ga. Wimberly v. State, 77 S. E. 879, 12 Ga. App. 540. Ky. Mickey v. Commonwealth, 9' Bush, 593. Me. State V. Reed, 62 Me. 129. Mo. State v. Sykes, 154 S. W. 1130, 248 Mo. 708. §260 INSTRUCTIONS TO JURIES 508 Juries are presumed to have common sense enough to need no metaphysical explanations of what will constitute a reasonable doubt,^ and it would seem clear that an instruction denning rea- sonable doubt should not be given, if it has no tendency to assist the jury to a better understanding of the phrase.*' However, in some jurisdictions, the court should, on request, give such a defini- tion' in capital cases,*^ and in other jurisdictions such a require- ment is a general one.®* High authority has declared that a care- ful explanation of the term "beyond a reasonable doubt" should be given to all juries in criminal cases, and especially in important trials, with a view particularly to emphasizing the word "reason- able," and minimizing the danger that the jury may believe that, although they have arrived at the degree of certainty indicated by the phrase, when broadly considered, they will yet be precluded 'from a conviction if they can honestly say that to their minds the defendant is possibly not guilty.** It cannot be doubted that in all jurisdictions the court will commit no error in failing to give such a definition, if no request is made therefor.** OM. Thompson v. State, 184 P. 467, 16 Okl. Or. 716; Cannon v. Ter- ritory, 99 P. 622, 1 Okl. Cr. 600. Tex. Abram v. State, 36 Tex. Cr. R. 44, 35 S. W. 389 ; Bland v. State, 4 Tex. App. 15 ; Ham v. Same, Id. 645. W. Va, State v. Price, 97 S. B. 582, 83 W. Va. 71, 5 A. L. R. 1247; State V. Worley, 96 S. E. 56, 82 W. Va. 350. 09 Hamilton v. People, 29 Mieh. 173. »» People V. Moses, 123 N. E. 634, 288 111. 281, affirming judgment 212 111. App. 641. ei Terrell v. State, 64 S. W. 223, 69 Ark. 449 ; Commonwealth v. Varano, 102 A. 131, 258 Pa. 442. «2 Davis V. State, 35 So. 76, 46 Fla. 137; Commonwealth v. Berney, 105 A. 54, 262 Pa. 176. 8 8 Emery v. State, 78 N. W. 145, 101 Wis. 627. «4 Ariz. Bush V. State, 168 P. 508, 19 Ariz. 195. Cal. People V. Cnin, 149 P. 795, 27 Oal. App. 316; People v. Ahem, 93 Cal. 518, 29 P. 49. Conn. State V. Smith, 65 Conn. 283, 81 A. 206. ria. Knight v. State, 53 So. 541, 60 Fla. 19; Bynum v. State, 35 So. 65, 46 Ma. 142; Shiver v. State, 27 So. 36, 41 Fla. 630. Ga. Tolbert v. State, 85 S. E. 267. 16 Ga. App. 311; Elder v. State, 85 S. E. 197, 143 Ga. 383; Sheffield v. State, 83 S. E. 871, 15 Ga. App. 514; Hathaway v. State, 81 S. E. 260, 14 Ga. App. 415 ; Cook v. State, 79 S. E. 87, 13 Ga. App. 308; Jackson v. State, 64 S. E. 656, 132 Ga. 570. Ind. Colee V. State, 75 Ind. 511. Iowa. State V. Mahoney, 97 N. W. 1089. 122 Iowa, 168. Mich. People v. Waller, 70 Mich. 237, 88 N. W. 261. Mo. State V. Leeper, 78 Mo. 470. Okl. Nelson v. State, 114 P. 1124, 5 Okl. Cr. 368. Pa. Commonwealth v. Berney, 105 A. 54, 262 Pa. 176. 'Wash. State V. Johnson, 53 P. 667. 19 Wash. 410. Wis. Murphy v. State, 83 N. W. 1112, 108 Wis. Ill; Miller v. State, 81 N. W. 1020, 106 Wis. 156. 509 INSTRUCTIONS ON DEGREE OF PROOF §261 § 261. Sufficiency of definitions of reasonable doubt In attempting to clarify the term "reasonable doubt," courts have usually done so— and this is undoubtedly the safer practice- by indicating what it does not mean, for if some positive form of expression is used the danger of misleading the jury arises, and the court feels it incumbent upon itself to qualify and hedge around its previous statement. It has been held proper to define a rea- sonable doubt as not a mere doubt,®^ as not a mere possible doubt,^ as not a mere guess or surmise,®" as not a merely imag- inary or conjectural doubt,** as not a fanciful, forced, or captious doubt,®' or as not a whimsical or vague doubt.'" If it is desired to give an affirmative definition it is proper to define a reasonable doubt as an actual, substantial doubt, and not •one arising from a, mere whim, vagary, or surmise,'^ as a substan- tial doubt touching the defendant's guilt based on the evidence or want of evidence in the case, and not a mere possibility of his in- nocence,'* as one which would be raised in the minds of reason- able men by the evidence, and not one arising from some whim, es Lodge v. State, 26 So. 200, 122 Ala. 107. Hot required to prove g^illt he- yond all doubt. A charge of the court, on a trial for murder, that "the state is not required to prove defendant's guilt beyond all doubt, but only to prove guilt beyond a rea- sonable doubt," was not objectionable as ambiguous and misleading. Little- ton V. State, 29 So. 390, 128 Ala. 31. ee United States v. McKenzie (D. C. Cal.) 35 F. 826; Knight v. State, 49 So. 764, 160 Ala. 58; People v. Verduzco, 110 P. 970, 13 Cal. App. 789. Instrnctions beld proper. A charge on a trial for murder, that de- fendant was presumed to be innocent until proven guilty beyond a reason- able doubt; that a reasonable doubt was one conformable to reason, a doubt which a reasonable man would entertain, and that it did not mean a mere possible doubt, because every- thing relating to human affairs and depending on moral evidence was open to some possible doubt; that it was that state of the case which, after consideration of all the evidence, left the minds of the jurors in that condition that they could not say they felt an abiding conviction to a moral certainty of the truth of the charge. Vasquez v. State, 44 So. 739, 54 Fla. 127, 127 Am. St. Rep. 129. An in- struction, "By reasonable doubt is meant that evidence of defendant's guilt must be clear and convincing and fully satisfy your minds and con- sciences, but It does not mean a mere imaginary, possible, or captious doubt," is sufficiently affirmative. Kelley v. State, 202 S. W. 49, 133 Ark. 261. 87 People V. Ah Lee, 128 P. 1035, 164 Cal. 350. 68 Bluett V. State, 44 So. 84, 151 Ala. 41. SB Cobb V. State, 74 S. E. 702, 11 Ga. App. 52; Hodgkins v. State, 89 Ga. 761, 15 S. E. 695; State v. Powers, 163 N. W. 402, 180 Iowa, 693. 7 McGuire v. State, 43 Tex. 210. 71 People V. Del Cerro, 100 P. 887, 9 Cal. App. 764. 72 State V. Nerzinger, 119 S. W. 379, 220 Mo. 36; State v. Raice, 123 N. W. 708, 24 S. D. 111. Instrnotions held proper with- in rule. An instruction that "rea- sonable doubt" does not mean that accused may possibly be innocent, but means some actual (ioubt having some reason for its basis, and it is a doubt reasonably arising from all §261 INSTRUCTIONS TO JURIES 510 caprice, or prejudice on the part of the jurors,'* as a doubt which must, be supported by reason; and not by mere conjecture and idle supposition, irrespective of the evidence,''* as a doubt based on some reason, and not some purely imaginary, fantastic, or chi- merical doubt,'^ as a doubt founded on the consideration of all the circumstances and evidence; and not on mere conjecture or speculation,''® as a doubt founded on some good reason, and not one arising from sympathetic feelings,'" as a fair doubt based on reason and common sense, and not a mere imaginary, captious, or possible doubt,'* or as a doubt which leaves the mind of the jury, in view of all the evidence, in a state of reasonable uncertainty as to the guilt of the defendant,''* or which leaves the jury in such a the evidence or want of evidence. Carter v. State, 154 N. Wr252, 98 Neb. 742. Defendant was not prejudiced by a charge that a reasonable doubt, to authorize an acquittal, must be a substantial doubt, and not a mere possibility of innocence; that a rea- sonable doubt exists when the jury do not feel an abiding conviction, to a moral certainty, of the truth of the charge; where the evidence does not satisfy the judgment with such cer- tainty that a prudent man would feel safe in acting upon it in his own most important aflfairs, or unless the evi- dence convinces the understanding, so that there is an abiding convic- tion, to a moral certainty, of the truth of the charge ; that the evi- dence need not exclude every possible hypothesis but the guilt of defend- ant. State V. Clancy, 52 P. 267, 20 Mont. 498.' "Kulp V. United States (C. C. A. Pa.) 210 F. 249, 127 C. C. A. 67. 71 People V. Ross, 46 P. 1059, 115 Cal. 233 ; State v. Lewis, 159 P. 415, 52 Mont. 495. An accused cannot complain of an instrnction: "The presumption Is that the defendant is Innocent, and the presumption continues up until the moment that you are satisfied by the evidence beyond a reasonable doubt of his guilt. This reasonable doubt is such a doubt that fully arises from the evidence. It should not be a mere whim or STirmise. There should be such a doubt as there is a reason for and which fully arises out of the evidence. * • • We would say further that the doubt , arises from all of the evidence, and if the doubt arises from a single ju- ryman the other eleven > jurymen should come to the mind of that one. It of course takes twelve jurymen to arrive at the verdict." Common- wealth V. Campbell, 31 Pa. Super. Ct. 9. 7 5 State V. Keehn, 160 N. "W. 666. T8TT, S. (D, C. Cal.) United States V. Knowles, Fed. Oas. No. 15,540, 4 Sawy. 517; (C. C. Mich.) United States V. Darton, Fed. Cas. No. 14,919, 6. McLean, 46; (C. C. Ohio) United States V. Foulke, Fed. Cas. No. 15,143, 6 McLean, 349. Ind. Kennedy v. State, 107 Ind. 144, 6 N. E. 305, 57 Am. Rep. 99. Ohio. State v. Neil, 1 App. 120. Pa. Commonwealth v. Shaub, 5 Lane. Law Rev. 121 ; Same v. Lynch, 3 Pittsb. R. 412; Commonwealth v. Drum, 58 Pa. 9. Tex. Brown v. State, 1 Tex. App. 154. 77 State V. Harsted, 119 P. 24, 66 Wash. 158. 7 8 People V. Swartz, 76 N. W. 491, 118 Mich. 292. 7 9 Simmons v. State, 48 So. 606, 158 Ala. 8. See Mapp v. State (Ga. App.) 106 S. B. 801. Minds of jurors ivavering and unsettled. An Instruction that "If, after an honest and impartial exam- ination, your minds are wavering, un- settled, unsatisfied, that Is the doubt of the law, and you should acquit; if that doubt does not exist, you should convict"— correctly states the 511 INSTRUCTIONS ON DEGREE OP PROOF § 261 condition of mind that they cannot say that they have an abiding faith in the truth of the charge against the accused.*' It is proper to charge, under proper qualifications, that the jury must not go beyond the evidence to hunt up doubts, and that they must not entertain such doubts as are .merely chimerical or conjectural.*^ On the other hand, it is error to define a reasonable doubt as an insurmountable doubt,** or as an intelligent opinion or conviction that the guilt of the defendant has not been satisfactorily proven,** or as a doubt which would satisfy, or occur to, a reasonable man,** or as that want of repose and confidence which an honest man has in the correctness of a conclusion which he is about to make, after giving the question his best thought,*^ or as a doubt arising spon- taneously from the evidence or lack of evidence,** or as such a doubt from all the evidence that the jury remain unsatisfied and unconvinced of the guilt of the accused after a full consideration of all the facts and circumstances of the case.'*'' An instruction defining a reasonable doubt in the language of the statute will ordinarily be sufficient.** § 262. Doubt arising out of the evidence or want of evidence An instruction authorizing the jury to convict the defendant if they believe beyond a reasonable doubt that the charge made law as regards reasonable doubt. Susq. Leg. Chron. 69; Same v. Bur- Dumas V. State, 63 Ga. 600. ton, Id. 66. soparrish v. State, 14 OSTeb. 60, 15 ss Brown v. State, 43 So. 194, 150 N. W. 357. Ala. 25. 81 Williams v. State (Art.) 16 S. W. so Scott v. State, 60 So. 355, 64 816 ; Painter v. People, 147 111. 444, Fla. 490. 35 N. B. 64; Voght v. State, 145 Ind. , st Smitli v. State, 101 P. 847, 17 i2, 43 N. B. 1049. Wyo. 481. 82 People V. Burke, 121 N. W. 282, as Frierson v. Commonwealtli, 194 157 Mich. 108. S. W. 914, 173 Ky. 684 ; Weatherford 83 Hoffman v. State, 73 N. W. 51. v. Commonwealth, 7 Ky. Law Rep. 97 Wis. 571. 827 ; Bramlette v. State, 21 Tex. App. 8* Avery v. State, 27 So. 505, '124 611, 2 S. W. 765, 57 Am. Rep. 622. Ala. 20; Vaughn v. State, 41 So. 881, Under the Georgia statute, an 52 Fla. 122; Hampton v. State, 39 instruction defining reasonable doubt So. 421, 50 Fla. 55 ; Padfleld v. Peo- as one that grows out of the testi- ple, 146 111. 660, 35 N. E. 469. mony or absence of ' testimony and In some jurisdictions, however, it leaves a reasonable mind unsettled, has been held proper to charge that a and that a juror cannot raise an arti- reasonable doubt is one that would ficial doubt in order to acquit, but cause a reasonably prudent or upright the doubt should be real, and honest- man, after a careful consideration of ly entertained, and that .the proof the evidence, to hesitate to convict, should be such as to control the con- Jlinich V. People, 8 Oolo. 440, 9 P. 4 ; duct of men in the highest affairs of Johnson v. State, 89 Ga. 107, 14 S. life, and not a mere conjecture, is E. 889 ; Peterson v. State, 47 Ga. proper. Parker v. State, 59 S. E. 823, 524; Commonwealth v. Irving, 1 3 Ga. App. 336. § 262 INSTRUCTIONS TO JURIES 512 against the defendant is true should state that the jury must be convinced from the evidence,** and, on the other hand, the jury should be told that the reasonable doubt justifying an acquittal must arise from a consideration of all the evidence in the case,®* having regard both for what it shows and does not show,®^ since the reasonable doubt to which a defendant is entitled is not one raised by the juror's personal information, from hearsay or other- wise, or from his bias or prejudice,®* and a charge that a reason- able doubt as to the guilt of the defendant arising out of the evi- dence, or any part of it, will require an acquittal, is properly re- fused as misleading.®* A charge, however, that if the evidence, 89 People V. Gray, 96 N. E. 268, 251 111. 431; Butler v. State, 35 So. 569, 83 Miss. 437; State v. Price, 97 S. E, 582, 83 W. Va. 71, 5 A. L. E. 1247. »oAla. Has well v. State, 86 So. 170, 17 Ala. App. 519; Edmonds v. State, 75 So. 873, 16 Ala. App. 157; West V. State, 75 So. 709, 16 Ala. App. 117; Jones v. State, 74 So. S43, 16 Ala. App. 7, certiorari denied 75 So. 1003, 200 Ala. 696; Minor v. State, 74 So. 98, 15 Ala. App. 556; Bowen v. State, 37 So. 233, 140 Ala. 65. Mo. State v. Christian, 161 S. W. 736, 253 Mo. 382. Rnle in Texas. A charge that the jury should acquit if they have a rea- " sonaWe doubt as to defendant's guilt is not erroneous by reason of the fact that it does not state that such doubt must arise from the evidence. Mikel V. State, 68 S. W. 512, 43 Tex. Cr. E. 615. Donbt raised hy ingenuity of coniisel. An Instruction , that if a reasonable doubt of any of the facts .necessary to convict was raised by the evidence itself "or by the Ingenuity of counsel" upon any hypothesis rea- sonably consistent with the evidence, the jury should acquit, was properly refused. People v. Wells, 71 N. W. 176. 112 Mich. 648. Instrnctions lield proper ivith- in rnle. • A charge that reasonable doubt is a doubt which arises out of the evidence, and appeals to reason- able men, and causes them to hesitate to convict the defendant, and that, if there is such a doubt the jury shall acquit, and if there Is no such doubt it is their duty to convict. Common- wealth V. Conroy, 56 A. 427, 207 Pa. 212. A charge, "After considering all the evidence, if the jury have a rea- sonable doubt of the guilt of the de- fendant, they will give the benefit of the doubt to the defendant, and re- turn a verdict of not guilty." Letcher V. State, 48 So. 805, 159 Ala. 59, 17 Ann. Cas. 716. An instruction to ac- quit accused, if the jury had a rea- sonable doubt of his guilt, and that, to authorize an acquittal, the doubt must be a reasonable one, arising from a careful Investigation of all the evidence. Foster v. Territory, 56 P. 738, 6 Ariz. 240. An instruction, in a prosecution for gambling, that a reasonable doubt Is an actual sub- sisting doubt arising either from the evidence or want of evidence. Goe- mann v. State, 143 N. W. 800, 94 Neb. 582. An instruction as to reasonable doubt, that the jury, in considering the case, should not go beyond the evidence to hunt up doubts, nor must they entertain such doubts as are merely conjectural, but a doubt, to justify an acquittal, must be reason- able, and arise from a candid inves- tigation of all the evidence. Miller v. People, 39 111. 457; Moeck v game, 100 111. 242, 39 Am. Rep. 38. »i Staton V. State, 62 So. 387, 8 Ala. App. 221. 92 Commonwealth v. Dl Silvestro, 31 Pa. Super. Ct. 537, 556; Same v. Tresca. Id.. 557. 98Adkins V. State, 76 So. 465, 16 Ala. App. 181; Hall v. State, 65 So. 427, 11 Ala. App. 95 ; Davis v. State, 513 INSTKUCTIONS ON DEGEEB OF PROOF 262 or any part thereof, after a consideration of the whole of such evi- dence, generates a well-founded doubt of the guilt of the defend- ant, the jury must acquit him, should be given on request.*** As has been indicated by the above discussion, a reasonable doubt may arise from a want of evidence, as well as out of the evidence.*^ Accordingly a definition of a reasonable doubt should not be confined to one growing out of the evidence, but should include doubts created by the want of evidence, or the manner and conduct of the witnesses when testifying,®* or by the statement of 62 So. 1027, 8 Ala. App. 147, certiora- ri denied Ex parte Davis, 63 So. 1010, 184 Ala. 26 ; McClain v. State, 62 So. 241, 182 Ala. 67; Olden v. State, 58 So. 307, 176 Ala. 6 ; Thomas v. State, 43 So. 371, 150 Ala. 31; Andrews v. State, 43 So. 196, 150 Ala. 56; Bar- din V. State, 38 So. 833, 143 Ala. 74; Gordon v. State, 36 So. 1009, 140 Ala. 29; Winter v. State, 32 So. 125, 333 Ala. 176; Winter v. State, 31 So. 717, 132 Ala. 32; Gordon v. State, 30 So. 30, 129 Ala. 113 ; Liner v. State, 27 So. 438, 124 Ala. 1 ; Lodge v. State, 26 So. 200, 122 Ala. 107 ; Nicholson v. State, 23 So. 792, 117 Ala. 32. Doubt arising from testimony of prosecution. A requested charge that it is not necessary that reason- able doubt should result from the tes- timony afflrmatiely produced at the trial by accused, but it may arise from the testimony of the prosecu- tion, is properly modified by adding that a doubt to be reasonable is one arising from a ccjnsideration of all the evidence in the case. People v. Shimonaka, 116 P. 327, 16 Cal. App.- 117. 9 4 Turner v. State, 27 So. 272, 124 Ala. 59; Patterson v. Same, 41 So. 157, 146 Ala. 39. » 5 Hale V. State, 72 Miss. 140, 16 So. 387 ; Massey v. State, 1 Tex. App. 563. 96 Cal. People v. Bartnett, 113 P. 879, 15 Cal. App. 89. Colo. Mackey v. People, 2 Colo. 13. Ind. Brown v. State, 105 Ind. 385, 5 N. B. 900; Wright v. State, 69 Ind. 163, 35 Am. Rep. 212; Densmore v. State, 67 Ind. 306, 33 Am. Rep. 96. Iowa. State v. Smith, 180 N. W. 4. INST.TO JUErBS— 33 Miss. Kelly v. State, 72 So. 928, 112 Miss. 245 ; Knight v. State, 20 So. 860, 74 Miss. 140. Mo. State v. Blue, 37 S. W. 796, 136 Mo. 41. N. J. State v. Andrews, 71 A. 10a, 77 N. J. Law, 108. Instructions held not improper within rule. An instruction that a reasonable doubt, to justify an ac- quittal, must grow out of the evidence after the consideration of all of it. Tribble v. State, 40 So. 938, 145 Ala. 23. A definition of "reasonable doubt" as "a substantial doubt aris- ing from the evidence, and not a mere possibility of innocence." State V. Garrison, 49 S. W. 508, 147 Mo. 548. A charge that the term "reason- able doubt" meant a doubt having some good reason for it arising out of evidence in the case; such a doubt as the jury could find a reason for in the evidence, and, as applied to the evidence in criminal cases, meant an actual and substantial doubt growing out of the unsatisfactory nature of the evidence, and the entire evidence should be considered, and the jury should entertain only such doubts as arise from the evidence and are rea- sonable. People V. Del Cerro, 100 P. 887, 9 Cal. App. 764. A charge, after telling the jury that defendant was presumed to be innocent until proof of guilt, and that they could believe his statement in preference to the sworn evidence: "The defendant is entitled to any doubt you may have in your mjnd. That, however, must be a reasonable doubt. Then, if your minds are wavering, and you cannot decide, it is your duty to give the de- fendant the benefit of that doubt by 262 INSTRUCTIONS TO JURIES 514 the accused, where such statement is not under oath and is not, acquittal. These doubts extend to every material issue and questign in tlie case. They may arise from a want of evidence or spring out of the evidence." Burney v. State, 25 S. E. 911, 100 Ga. 65. An instruction that, if on consideration of all the evidence, facts, and circumstances presented on the trial the jury enter- tained a reasonable doubt as to de- fendant's guilt, they should acquit. Dobbs V. State, 115 P. 370, 5 Olil. Or. 475, denying- rehearing 114 P. 358, 5 Okl. Cr. 475. A charge that "a doubt, to justify an acquittal, must be reasonable' and arise from a candid and impartial consideration of all the evidence in the case." Moore v. State, 111 P. 822, 4 Okl. Cr. 212. An in- strviction defining a reasonable doubt as "not a mere imaginary or possible doubt, but a substantial doubt, based upon reason and common sense, and Induced by the facts and circumstanc- es attending the particular case and growing out of the testimony. It Is such a doubt as will leave one's mind, after a careful examination of all the evidence, in such condition that he cannot say that he has an abiding conviction to a moral cei'- tainty of the defendant's guilt as charged." State v. De Lea, 93 P. 814, 36 Mont. 531. It is not ground for new trial that the court charged that a reasonable doubt is not some vague or fanciful doubt, but such a doubt as arises from the testimony in the mind of a reason- able man and leaves it hesitating, un- settled, and undecided. Barnard v. State, 46 S. B. 644, 119 Ga. 436. An instruction that defendant is presum- ed to be innocent, and that, to war- rant conviction, guilt must be estab- lished beyond a reasonable doubt, but to warrant a verdict of not guilty on that ground alone the doubt should be a substantial doubt of guilt aris- ing from the evidence in the case, and not a mere vpossibillty of inno- cence, is not objectionable as not al- lowing an acquittal on account of any reasonable doubt arising from any in- sufficiency in the evidence, because, whenever the sufficiency of the evi- dence is considered, its insuflSciency Is also considered. State v. Cushen- berry, 56 S. W. 737, 157 Mo. 168. A charge that a reasonable doubt is one growing out of the evidence which leaves the mind uncertain is not im- proper as preventing the- jury from considering a reasonable doubt, aris- ing from the absence of evidence, or based on conflicts therewith and a consideration of accused's statement. Mulligan V. State, 89 S. E. 541, IS Ga. App. 464. Where the court charged that reasonable doubt must be a ra- tional doubt, fairly arising from the testirnqny and the circumstances sur- rounding the case; that the burden was on the state to satisfy the jury beyond a reasonable doubt of the ex- istence of any fact and circumstance necessary to form a conclusion of de- fendant's guilt which must be affirm- atively proven to a moral certainty; and that the presumption of inno- cence attends the accused from the beginning to the end of the trial, and prevails unless overcome by evidence suflficiently strong to convince and satisfy the jury beyond a reasonable doubt, it was held that such charge was not objectionable as depriving accused of the benefit of reasonable doubt arising from Insufficiency or lack of evidence, in that the court in certain excerpts stated that a rea- sonable doubt which entitled accused ' to an acquittal was one arising from "all the evidence In the case." Hedg- er V. State, 128 N. W. 80, 144 Wis. 279. A charge that reasonable doubt is not a mere possible doubt; that it must be founded upon reason and must grow out of the evidence in the case; that it is a doubt for which a reason can be assigned, and which leads one to entertain a conscientious belief that there is an absence of nec- essary proof of guilt; that it is an honest, fair doubt, raised, not from an outside source, but by the evidence given in open court, and which ap- peals to the sound judgment of the jury — is not erroneous, when consid- ered with a further charge that it is presumed that defendant is innocent, that such presumption continues 515 INSTRUCTIONS ON DEGREE OF PROOF §262 Strictly speaking, evidence ;»' and the court should charge,** on, request,*** that a reasonable doubt, authorizing an acquittal, may arise from the want of satisfactory evidence of the truth of the matters alleged- in the indictment. A proper form of instruction in this connection is one to the effect tha^a reasonable doubt, beyond which guilt must be affirma- tively proved in order to justify a verdict of guilty, is a doubt of guilt reasonably arising from all the evidence or want of evidence in the case.^ On the other hand, it is error to instruct in effect that, if the jury have an abiding conviction of the guilt of- the de- fendant arising from the lack of evidence from any source, they will be satisfied beyond a reasonable doubt, since this would in- clude a failure of the defendant to testify to facts within his knowl- edge, or to produce evidence to meet the evidence for the state.** Where the evidence of the guilt of the defendant is overwhelm- throughout the trial until satisfac- tory evidence of guilt is produced,' that the burden of establishing guilt rests upon the people, and that the prosecution must- prove defendant's guilt in aU its elements. People v. Hoffmann, 105 N. W. 838, 142 Mich. S31. In Wisconsin it has been held that the phrase "beyond any reasonable doubt arising out of or based on the evidence" and the expression "beyond any doubt arising out of or for want of evidence" mean the same thing, viewed in the light of the legal pre- sumption of innocence. Emery v. State, 78 N. W. 145, 101 Wis. 627. In Pennsylvania it is held that an instruction that, in order to convict, the jury must be convinced of guilt beyond a reasonable doubt, and that defendant should have the benefits of any doubt, and that a reasonable doubt is a doubt arising out of a con- sideration of all the evidence, is not reversible error. Commonwealth v. Knox, 105 A. 634, 262 Pa. 428. Bule in Texas. A charge that if the jury had a reasonable doubt, "from the evidence," as to the guilt of defendant, they should acquit him, was not cause for reversal, although the doubt may arise from a want of evidence. Tomlinson v. State (Tex. Cr. R.) 43 S. W. 332; Whitesides v. Same, 58 S. W. 1016, 42 Tex. Cr. R. 151. In this jurisdiction it has been said that no one of ordinary sense could reach the conclusion that the de:^endant was guilty beyOnd a rea- sonable doubt merely because there was no evidence of his innocence. Zwicker v. State, 27 Tex. App. 539, 11 S. >V. 633. 9 7 McNeal v. State, 63 S. E. 224, 5 Ga. App. 368; Governor v. State, 63 S. E. 241, 5 Ga. App. 357; Passmore y. State, 63 S. B. 244, 5 Ga. App. 366. Omission in ins-truciion cured by other instrnctions. An instruc- tion that a reasonable doubt, in terms of the law, is a doubt that legitimate- ly springs from the evidence, from the want of evidence or from a con- flict in the evidence, is not erroneous in failing to state that the reasonable doubt might arise from a considera- tion of accused's statement, where the court charges fully and correctly on the weight which the jury may give to such statement. Benton v. State, 71 S. B. 8, 9 Ga. App. 291. »s Howell v. State, 53 So. 954, 98 Miss. 439. 9 Fealy v. City of Birmingham, 73 So. 296, 15 Ala. App. 367 ; Gaston v. State, 49 So. 876, 161 Ala. 37; Car- wile V. State, 39 So. 220, 148 Ala. 576; State V. Herwitz, 186 P. 290, 109 Wash. 153. 1 Baker v. State, 97 N. W. 566, 120 Wis. 135. 2 People V. Jordan (111.) 127 N. B. 117. §263 INSTEUCTIONS TO JURIES 516 ing, the failure of the court in its charge to include want of evi- dence as a basis Eoberson v. State, 99 Ala. 189, 13 So. 532. 71 Ala. Keith v. State, 72 So. 602, 15 Ala. App. 129; Moss v. State, 67 So. 431, 190 Ala. 14; Ragsdale v. State, 32 So. 674, 134 Ala. 24; An- drews V. State, 32 So. 665, 134 Ala. 47; GafCord v. State, 25 So. 10, 122 Ala. 54. Mich. Hall V. People, 39 Mich. 717. 7 2 Thomas v. State, 65 So. 863, 11 Ala. App. 85 ; Griffin v. State, 43 So. 197, 150 Ala. 49 ; Nevill v. State, 32 So. 596, 133 Ala. 99. Instruction requiring state to prove that no other person than defendant could possibly have oommitted the offense charged. A charge In a homicide case that there §270 INSTRUCTIONS TO JURIES 330 As has been stated elsewherfe, instructions should not be so framed as to tend to lead the jury to think that they must be con- vinced beyond all doubt, and an accused is not entitled to an in- struction that the truth of the charge against him must be estab- lished to an absolute moral certainty,'*' and it is proper to charge that in order to convict there need not be absolute mathematical certainty of proof of guilt.'* § 271. Abiding conviction to a moral certainty It is proper in some j.Urisdictions to instruct the jury that a rea- sonable doubt is such a doubt as leaves the minds of the jury, after a consideration of all the evidence, in such a condition that they cannot say that they have an abiding conviction to a moral certainty of the truth of the charge against the defendant,'^ al- though it may not be error to refuse such an instruction, in view of other instructions given," and in some jurisdictions such an instruction is erroneous, or is properly refused, as likely to con- fuse the jury, and as not making the meaning of reasonable doubt should not be a convictiofa unless to a moral certainty the evidence excludes every other reasonable hypothesis than that of guilt of accused, and no matter how strong may be the facts if they can be reconciled with the theory that some other person may have done the act, then the guilt of accused is not shown by that full measure of proof that the law re- quires, is properly refused, as requir- ing too high a degree of proof. Par- ham V. State, 42 So. 1, 147 Ala. 57 ; Bailey v. State, 53 So. 296, 390, 168 Ala. 4. 7 3 People V. Hecker, 109 Cal. 451, 42 P. 307, 30 L. R. A. 403: People v. Davis, 64 Oal. 440, 1 P. 889. Instructions held properly re- fused witbin rule. An instruction that the law is that not only must the jury have justifying reasons for con- clusion of guilt, not only must they be able to say upon reason that the ac- cused-is guilty, but that their conclu- sion must be so reasonable to their minds as to exclude all doubts of their correctness to a moral certainty. Greer v. State, 47 So. 300, 156 Ala. 15. 7* Ala. King v. State, 87 So. 701, 17 Ala. App. 536; Winter vi State, 26 So. 949, 123 Ala. 1; Hicks v. State, 26 So. 337, 123 Ala. 15; Martin v. State, 77 Ala. 1. Ga. Loyd v. State (App.) 106 S. E. 601; Jackson v. State, 45 S. E. 604, 118 Ga. 780 ; Hodge v. State, 43 S. E. 255, 116 Ga. 852 ; Davis v. State, 39 S. B. 906, 114 Ga. 104. Neb. St. Louis v. State, 8 Neb. 405, 1 N. W. 371. 7 5 u. s. (D. C. Ala.) United States V. Zes Oloya, 35 F. 493. Ala. Coleman v. State, 59 Ala. 52. Cal. People v. Davis, 67 P. 59, 135 Cal. 162; People v. Ashe, 44 Cal. 288. Kan. State v. Patton, 71 P. 840, 66 Kan. 486. Mich. People V. Finley, 38 Mich. 482. Minn. State v. Gouplln, 178 N. W. 486, 146 Minn. 189. Nev. State v. Van Winkle, 6 Nev. 340. Tex. Chapman v. State, 3 Tex. App. 67. Abiding conviction of guilt. An ihistruction that, before defendant could be found guilty, the jury must have a "fixed abiding conviction of guilt," was not erroneous. Thomp- son V. State, 184 P. 467, 16 Okl. Cr. 716. 76 Woodrufe V. State, 31 Ma. 320, 12 So. 653. 531 INSTRUCTIONS ON DEGREE OF PROOF §272 any clearer than the phrase itself." It is proper to give the con- verse of the above instruction to the effect that the jury are satis- fied beyond a reasonable doubt of the fact of the guilt of the ac- cused if, after a consideration of all the evidence in the case, they have an abiding conviction to a moral certainty of such fact.'* § 272. Conscientious belief An instruction that a conscientious belief that the defendant is guilty of the crime .charged against him will authorize his convic- tion is erroneous,'"* since mere conscientious belief is not belief beyond a reasonable doubt,** and such an instruction in effect, re- quires the jury to convict if they believe the defendant to be guilty.*! Such an instruction is not cured by an instruction that the jury must believe the defendant guilty beyond a reasonable doubt be- fore they can convict,*^ but a charge to convict if the jury con- scientiously believe the defendant to be guilty beyond a reason- 7T Little V. People, 157 111. 153, 42 N. B. 3S9; Claussen v. State, 133 P. 1055, 21 Wyo. 505, judgment affirmed on rehearing 135 P. 802, 21 Wyo. 505. Im New Jersey a reasonable donbt has not as yet been authoritatively defined as the want of an abiding con- viction of guilt. State v. Silverlo, 7t5 A. 1069, 79 N. J. Law, 482. 7s U. S. fSup.) Miles v. ITnited States, 103 V. S. 304, 26 L. Ed. 481. Ala. Frazier v. State, 86 So. 173. 17 Ala. App. 486; Harrison v. State, 40 So. 568, 144 Ala. 20; McKee v. State, 82 Ala. 32, 2 So. 451. Arb. Snyder v. State, 111 S. "W. 465, 86 Ark. 456. Neb. Willis V. State, 43 Neb. 102, 61 N. W. 254. N. J. Donnelly v. State, 26 N. .T. Law, 601. Abiding conviction of guilt. An instruction that, if, from all the cir- cumstances, the jury are convinced of accused's guilt, "and that you have an abiding conviction that the defend- ant is guilty of murder," they should convict was misleading and argumen- tative in requiring the jury to be con- vinced that they had an abiding con- viction of guilt, instead of that they be convinced of the fact of gnilt. Peo- ple V. Klscho, 105 N. E. 8, 262 111. 596. Abiding conviction based on want of evidence. An Instruction that, if from careful consideration of all liie evidence or want of evidence the jury could say that they had an abiding convictibn of truth of charge, they would be satisfied beyond a rea- sonable doubt, has been held to be error. Gammol v. State, 166 N. W. 250, 101 Neb. 532, modifying on re- hearing opinion in 163 N. W. 854, 101 Neb. 532. 79 Taylor v. State, 42 So. 608, 89 Miss. 671 ; Ellerbee v. State, 30 So. 57, 79 Miss. 10; Orr v. State, 18 So. 118; Brown v. State, 72 Miss. 997, 17 So. 278 ; Hemphill v. State, 16 So. 491; Burt v. State, 72 Miss. 408, 16 So. 342, 48 Am. St. Rep. 563 ; Brown V. State, 72 Miss. 95, 16 So. 202. Belief as reasonable and con- scientious men. An instruction is erroneous which, after stating that a reasonable doubt cannot be defined, tells the jury that they should con- vict if they are satisfied from all the evidence, as reasonable and conscien- tious men, of defendant's guilt. Pow- ers V. State,, 21 So. 657, 74 Miss. 77'('. 80 .Johnson v. State (Miss.) 16 So 494. "1 Rucker v. State (Miss.) 18 So. 121. 82 Campbell v. State (Miss.) 17 So. 441. §273 INSTRUCTIONS TO JURIES 532 able doubt is not an improper qualification of the doctrine of rea- sonable doubt.** § 273. Effect of doubt upon any particular fact There is generally such a relation between the definitive ele- ments of a public offense and mutual corroboration in the proofs ,of them as to make it improper to single them out for isolated de- tached consideration. But in the end, all things considered, the established measure of proof of an offense charged is also the measure of the proof of .each essential constituent element.** Ac- cordingly, on principle and by the weight of authority, an instruc- tion' that it is not necessary, to convict an accused, that every ma- terial allegation in the indictment shall be established beyond a reasonable doubt if the jury are satisfied after a consideration of the entire case of his guilt beyond a reasonable doubt, is errone- ous,*^ and defendant is entitled to have the jury instructed that, unless every element necessary to constitute the crime charged is proven beyond a reasonable doubt, they must acquit him,** al- es Moore V. State, 38 So. 504, 86 Miss. 160 ; Hammond v. State, 21 So. 149, 74 Miss. 214. Proof -nrMcli satisfies judgment and conscience of jury. An in- struction whicli defines proof beyond a reasonable doubt to be "such proof as satisfies the judgment and con- science of the jury, as reasonable men applying their reason to the evidence before, them, that the crime charged has been committed by the defend- ant, and so satisfies them as to leave no other reasonable conclusion possi- ble," is correct. People v. Bzzo, 104 Mich. 341, 62 N. W. 407. 84 Spear v. United States (C. C. A. Ark.) 228 F. 485, 143 C. 0. A. 67. 85 Heard v. United States (0. C. A. Ark.) 228 F. 503, 143 O. C. A. 85; Spear v. United States (0. C. A. Ark.) 228 F. 485, 143 C. C. A. 67; State v. Ottley, 126 N. W. 334, 147 lovra, 329 ; State V. Kimes, 124 N. W. 164, 145 Iowa, 346. "Each and every" material alle- gation. An instruction that, if the state has failed to establish "each and evety" of the material allega- tions beyond a reasonable doubt, the jury must acquit, is not erroneous be- cause of the use of the quoted words instead of "any." Larson v. State, 137 N. W. 894, 92 Neb. 24. 88 Dunn V. State, 84 S. E. 488, 16 Ga. App. 9; Frazier v. State, 100 S. W. 94, 117 Tenn. 430. In the federal courts, a request for such an instruction, which also re- quired that each individual juror be satisfied beyond a reasonable doubt of each essential fact, has been held properly refused. Richards v. United States (0. C. A. Neb.) 175 F. 911, 99 O. C. A. 401. "AU the phases of the case." While every material allegation in an indictment should be proven beyond a reasonable doubt, it is not error to refuse to charge "that all the phases of the case" should be proven beyond a reasonable doubt. Price v. State, 40 S. E. 1015, 114 Ga. 855. Douht raised by ingenuity of counsel. I(j was proper to refuse an instruction that if a reasonable doubt of any fact necessary to convict is raised in the mind of the jury by the evidence itself, or by the ingenuity of the counsel, on any hypothesis con- sistent therewith, that doubt is deci- sive of the defendant's acquittal as misleading. Horton v. Common- wealth, 38 S. E3. 184, 99 Va. 848. 533 INSTRUCTIONS ON DB6EBE OF PROOff § 273 though an instruction laying down this rule in so many words is not necessarily required,*'' and such an instruction may be refused where the insanity of the defendant is the only issue.** As is indicated by the foregoing statement there are decisions in some jurisdictions which seem to be at variance with the rule above laid down. In Alabama, while there are cases to the con- trary,** the preponderance of authority and the later aecisions are to the effect that the court may properly refuse a charge that the proof of one single fact to the satisfaction of the jury inconsistent with the guilt of the accused is sufficient to raise a reasonable doubt requiring an acquittal."** ' In Illinois the court may and should instruct that a reasonable doubt which will warrant the acquittal of a defendant in a criminal case must be as to his guilt upon the whole evidence, and not as to any particular fact in the case,*^ and an instruction which applies the doctrine of reasonable doubt to any single fact, and not to all the evidence, is erroneous."* The reasoning* which underlies these decisions is somewhat ob- scure. Apparently they have been influenced largely by "the ap- prehension that to tell the jury that before they can convict they must find beyond a reasonable doubt the existence of every fact essential to make out the crime charged would divert the attention of thp jury from a consideration of the entire evidence to particu- ' ST Benge v. Commonwealth, 71 S. certiorari Davis v. State, 62 So. 1027, W 648, 24 Ky. Law Eep. 1466. 8 Ala. App. 147 ; Wingate v. State, 8 3 State V Soper, 49 S. W. 1007, 55 So. 95.3, 1 Ala. App. 40; Moss v. 14SM^917' state, 44 So. 598, 152 Ala. 30; Morris "■ ; ■ ^ ^ ^, „ ,„„ n .,« V. State, 27 So. 336, 124 Ala. 44. 89 Doty V. State, 64 So 170, 9 Ala. ,, p^^ j^ ^ p^^^^ gg j^ j, ggg oPrP\!^= »,^°^-,^J'°«-^- ^ ' «f=,to 237 111. 390; Henry v. People, 65 N. ^o^'c^^^.£^^--,^o= Simmons V. State, ^ „ jgg jjj ^gg; Gorgo v. Peo- 48 So. 606, 158 Ala. 8; Walker v. ^j^^ ^^ jy ^p^ ^^q State, 45 So. 640, 153 Ala. 31. Imstrnctious held proper nrithin 90 Richardson v. State, 85 So. 789, rule. An instruction on reasonable 204 Ala. 124 ; Ix)ve v. State, 82 So. doubt, that the rule requiring the ju- 639, 17 Ala. App. 149 ; Watkins v. py to be satisfied of defendant's guilt State (App.) 82 So. 628; Pinson v. beyond a reasonable doubt In order State, 78 So. 876, 201 Ala. 522 ; Cain to convict, is complied with if taking V. State, 77 So. 453, 16 Ala. App. 303 ; the testimony altogether the jury is Butler V. State, 77 So. 72, 16 Ala. App. satisfied beyond a reasonable doubt, 234; Suttles v. State, 74 So. 400, 15 and that the , reasonable doubt which Ala. App. 582; Pippin v. State, 73 the jury may entertain must be as So. 340, 197 Ala. 613 ; Cowan v. to the guilt of accused on the whole State, 72 So. 578, 15 Ala. App. 87 ; evidence, and not as to any particular Pearson v. State, 69 So. 485, 13 Ala. fact "material to the issue in the App. 181; Thomas v. State, 68 So. case," cannot be complained of by 799, 13 Ala. App. 246, certiorari de- the defendant because of the addition nied Ex parte Thomas, 69 So. 1020, of the quoted words. People v. Scar- 193 Ala. 682 ; Moss v. State, 67 So. bak, 92 N. E. 286, 245 111. 435. , 431, 190 Ala. 14; Ex parte Davis, 02 People v. Zurek, 115 N. B. 644, 63 So. 1010, 184 Ala. 26, denying 277 111. 621. § 273 INSTRUCTIONS TO JURIES 534- lar features thereof. But it is hard to resist the concktsion that the form of instruction approved in these jurisdictions is likeiy in some cases to mislead the jury into the belief that, although they may not be convinced beyond a reasonable doubt that some fact essential to conviction has been proven, they may yet bring in a verdict of guilty. An instruction which applies the doctrine of reasonable doubt to each and every incident connected with the case is too broad,** as is an instruction that the jury must acquit if they have a rea- sonable doubt of material facts, without regard to whether they are facts essential to the establishinent of the guilt of defendant.®* Thus, in a prosecution for seduction, it is error to charge that the corroborating evidence must be proven beyond a reasonable doubt.*® The reasons which render proper an instruction that not every circumstance ofiEered in evidence tending to prove ultimate facts must be established beyond a reasonable doubt are as ap- plicable where the prosecution rests its case upon direct evidence as where it relies upon circumstantial evidence.*" The defendant has no right to single out each material fact and have the court direct the jury that if they have a reasonable doubt .as to the existence of such fact they ought to acquit.*'' § 274. Necessity of convincing each juror beyond a reasonable doubt in order to convict or to prevent an acquittal Instructions are erroneous which tend to convey the impression that the doubt of an individual juror of the guilt of the accused cannot be put into the scales against the conviction of his fellow jurors beyond a reasonable doubt of such guilt.** On the con- 98 State V. "WajJiins, 31 So. 10, 106 Moon, 117 P. 757, 20 Idaho, 202, Ann. La. 380. ' Cas. 1913A, 724; People v. Faber, 92 84 Leonard v. State, 43 So. 214, 150 N. B. 674, 199 N. Y. 256, 20 Ann. Cas. Ala. 89; Burton v. State, 37 So. 435, 879. 141 Ala. 32. Instructions held improper oBLasater V. State, 94 S. W. 59, 77 within rale. An instruction that to Ark. 468. vote time after time in accordance 9 6 Hollywood V. State, 120 P. 471, with the first ballot, and not try to 19 Wyo. 493, Ann. Cas. 1913E, 218, reach a verdict was to violate the rehearing denied 122 P. 588, 19 Wyo. oaths of the jurors to return a ver- 493, Ann. Cas. 1913E, 218; Horn v. diet according to the evidence, and State, 73 P. 705, 12 Wyo. 80. "this each of you can do and do no 97 City of Topeka v. Roberts, 141 P. violence to your consciences as fair- 240, 92 Kan. 667; State v. Robinson, minded, conscientious, and intelli- 139 S. W. 140, 236 Mo. 712; State gent jurymen." People v. Whitlow, V. Garth, 65 S. W. 275, 164 Mo. 553 ; 139 P. 826, 24 Cal. App. 1. An in- State V. Crawford, 34 Mo. 200 ; State struction defining a reasonable doubt v. IXmn, 18 Mo. 419. to be such as "arises in the minds of 9 8 Shanon v. State, 83 S. E. 156, the whole jury" is prejudicial, as be- 15 Ga. App. 346 ; State v. Louie ing capable of the construction that 535 INSTRUCTIONS ON DEGREE OF PROOF §274 trary, it is proper to instruct that before the jury can convict the defendant in a criminal case each juror must be convinced of his guilt beyond a reasonable doubt,^* that each juror should act for himself upon his individual convictions,^ and that if any juror entertains a reasonable doubt of the guilt of the defendant he should not vote for a verdict of guilty because a majority of the jurors believe him to be guilty.* they must convict unless they all en- tertain such doubt. State v. Stew- art, 52 Iowa, 284, 3 N. W. 99 ; State V. Sloan, 55 Iowa, 217, 7 N. W. 516. Instmctions held not improper within rnle. An instruction that a. reasonable doubt is not a mere pos- sible doubt, but a fair doubt, growing out of the evidence or lack of evi- dence, and exists when each juror is unable to ^y that he has an abiding convictionTro a moral certainty of the truth of the charge, etc., was not oo- jectionable as In effect charging that such doubt exists only when all the jurors have a reasonable doubt. State V. Thompson, 87 P. 709, 31 Utah, 228. S9 Ala. Russell v. State, 78 So. 916, 201 Ala. 572; McDade v. State, 64 So. 519, 10 Ala. App. 241 ; Hooten V. State, 64 So. 200, 9 Ala. App. 9; Doty V. State, 64 So. 170, 9 Ala. App. 21 ; Green v. State, 53 So. 284. 168 Ala. 104; Phillips v. State, 47 So. 245,' 156 Ala. 140 ; Leonard v. State, 4J So. 214, 150 Ala. 89; Whatley v. State, 39 So. 1014, 144 Ala. 68; Fletcher v. State, 31 So. 561, 132 Ala. 10 ; Mitchell v. State, 80 So. 348, 129 Ala. 23; Hale v. State, 26 So. 236, 122 Ala. 85 ; Carter v. State, 103 Ala. 93, 15 So. 893. Ind. Eains v. State, 36 N. E. 532, 137 Ind. 83. 1 Simon v. State, 108 Ala. 27, 18 So. 731; Fassinow v. State, 89 Ind. 235. 2 People V. Singh, 128 P. 420, 20 Oal. App. 146. Instrnctiona held proper wita- in rnle. An Instruction that defend- ant on trial for "murder was entitled to the independent judgment of every juror and that if any juror entertain- ed a reasonable doubt as to defend- ant's guilt and should, for conveni- ence, vote for the conviction of mur- der in the second degree, or even manslaughter, he would be violating his oath and doing a grievous wrong to defendant. People v. Watson, 133 P. 298, 165 Cal. 645. An instruction that a juror entertaining a reasonable doubt of accused's guilt should vote to acquit and continue to so vote un- til convinced to the contrary, and that a juror should not hesitate to change his views when convinced that they are erroneous. People v. Wilt, 160 P. 561, 173 Cal. 477. A charge, on a prosecution for murder, that if any one or any number of the jury, after deliberating on all the evidence, should be of the opinion that defend- ant had not been proven guilty by the evidence to a moral certainty and beyond every reasonable doubt, those entertaining such opinion should vote for an acquittal, and should adhere 'to their opinion until convinced of their error beyond all reasonable doubt; that mere probabilities were not sufBcient to warrant a conviction, and that it was not sufficient that the greater weight of the evidence support the allegations of the in- formation, or sufficient that on the doctrine of reasonable chances it was more probable that defendant was guilty than innocent. People v. Mur- phy, 80 P. 709, 146 Cal. 502. An in- struction that, if any juror entertain- ed a reasonable doubt of guilt, it was his duty not to vote for a verdict of guilty nor to be influenced to so vote for the sole reason that other jurors favored such verdict was not errone- ous as permitting the juror to enter- tain a reasonable doubt to vote for verdict of guilty because other jurors did so provided he finds some addi- tional reason. Salt Lake City v. Rob- inson, 125 P. 657, 40 Utah, 448. §274 INSTRUCTIONS TO JURIES 536 In some jurisdictions the rule is tliat an accused is entitled to an instruction that he cannot be convicted so long as any juror en- tertains a reasonable doubt of his guilt,* cjir that jurors need not surrender their honest convictions in order to agree upon a ver- dict;' or that it is the duty of a juror having a reasonable^doubt of the guilt of the defendant not to surrender his position merely be- cause the majority of the jurors disagree with him.® In other jurisdictions, however, an instruction that the jury cannot bring in a verdict of guilty if any juror has a reasonable doubt of the guilt of the defendant is properly refused, as stating a proposition already obvious to the jury,® or as misleading or tending to en- courage a disagreement,'' where the court has instructed as to the presumption of innocence and as to reasonable doubt on the part of the jury generally.* s Grimes v. State, 105 Ala. 86, 17 So. 184; Parker v. State, 136 Ind. 284, 35 N. B. 1105 ; McGuire v. State, 2 O. C. D. 318, 3 Ohio Cir. Ct. R. 551. 4 People V. Wong Loung, 114 P. 829, J 59 Cal. 520. e People V. Dole, 55 P. 581, 122 Cal. 486, 68 Am. St. Rep. 50, revers- ing judgment 51 P. 945. Instructions not Improper xrith- in rule. A charge to the effect that, "if any one, or any number, of you," should believe that accused has not been proven guilty by the evidence, to a moral certainty and beyond every* reasonable doubt, those holding that opinion should vote for acquittal, and should so adhere to their opinion un- til convinced, beyond all reasonable doubt, that they are wrong; "but It is the duty of every juror to reason with his fellow Jurors, to the end that he may join in a lawful verdict, and to discard any opinion he may have formed, when convinced that such opinion is not justified by the evidence," but that a mere probabili- t.v or a preponderance of the evidence is not sufficient to convict, nor is it sufficient that upon the doctrine of chances guilt be more probable than innocence, is not erroneous, as liable to lead the jury to believe that any juror should vote to convict, unless satisfied of guilt beyond a reasonable doubt. People v. Davenport, 120 P. 451, 17 Cal. App. 557. Where the court, after the jury had considered a criminal ease for a time, stated that he had no knowled^as to how the jury stood, that it 3^ht be the proper thing for a minority to consid- er whether they might be wrong and a majority right, that no juror should yield his well-grounded conviction or violate his oath, and that, if upon further consideration a juror could not conscientiously yield, he ought not to do so, directed the jury to further consider the case, it was held that the remarks were not erroneous as in- structing for a majority verdict. Peo- ple v. Coulon, 114 N. W. 1013, 151 Mich. 200. 8 People V. Curtis, 56 N. W. 925, 97 Mich. 489 ; State v. Young, 105 Mo. 634, 16 S. W. 408 ; State v. Coleman, 98 N. W. 175, 17 S. D. 594. T 11. S. (C. O. A. Neb.) Richards V. United States, 175 F. 911, 99 C. C. A. 401. Fla. Cook v. State, 35 So. 665, 46 Fla. 20. Ga. Fogarty v. State, 80 Ga. 450, 5 S. E. 782; Smith v. State, 63 Ga. 168. lU. People V. Lee, 86 N. E. 573, 237 111. 272. Mo. State V. Taylor, 134 Mo. 109, 35 S. W. 92. Ohio. Davis V. State, 57 N. E. 1099, 63 Ohio St. 173. 8 State V. Hamilton, 57 Iowa, 596> 11 N. W. 5 ; Walford v. State, 63 So. 316, 106 Miss. 19 ; State v. Gushing, 50 P. 512, 17 Wash. 544. 537 INSTRUCTIONS ON DEGREE OP PROOF §274 Instructions should not be so framed' as to pretermit the delib- eration of the jurors together, or prevent them from freely con- sulting with each other." While each juror must decide the ques- tion of the guilt of the defendant for himself, he should do so only after a consideration of the case with his fellow jurors, and he should not hesitate to sacrifice his views or opinions of the case, when convinced that they are wrong, even although in so Soing he defer to the views or opinions of others.^* Instructions which overemphasize the duty of each juror to ad- here to his own opinion, and thereby tend to lead him arbitrarily to disregard the opinions of his fellow jurors, are properly refused,^^ In Mississippi, early cases at variance with the text (Ammons v. State, 42 So. 165, 89 Miss. 369; Bell V. State, 42 So. 542, 89 Miss. 810, 119 Am. St. Rep. 722, 11 Ann. Cas. 431) have been overruled. Instrnctions held snfficien't within rule. A charge that, before the jury can convict, they must find accused guilty beyond a reasonable doubt, and that a "reasonable doubt" is thai? state of the case which, after the entire comparison and consider- ation of all the evidence, leaves the minds of the jurors in that condi- tion that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge — that is, to a certainty that causes and directs the understanding and satis- fies the reason and judgment of those who are bound to act conscientiously upon it — is ordinarily a sufiicient ad- monition as to the separate individ- ual duty of each juror. State v. Smith, 114 P. 1074, 84 Kan. 646. Compare, State v. Witt, 8 P. 769, 34 Kan. 488. Where the court instructs that the jury should acquit unless they are satisfied beyond a reasonable doubt that accused is guUty, it suffi- ciently informs the jury that each juror should pass his own judgment on the evidence. Oborn v. State, 126 N. W. 737, 143 Wis. 249, 31 L. R. A. (N. S.) 966. 9 Diamond v. State, 72 So. 558, 15 Ala. App. 33, certiorari denied Ex parte State, 73 So. 1002, 198 Ala. 694 ; Lewis V. State, 25 So. 1017, 121 Ala. 1 ; Biddle v. State, 199 S. W. 913, 131 Ark. 537; Little v. People, 157 111. 153, 42 N. E. 389 ; State v. Hennessy, 90 P. 221, 29 Nev. 320, 13 Ann. Cas. 1122. Instructions not objectionable 'nlthin rule. An instruction -that each juror should act for himself and form his ovsai judgment uninfluenced by the judgment of others, and thus determine the guilt or innocence of the defendant from his own stand- point, was not objectionable as pre- venting the jury from discussing the evidence or indulging in an inter- change of views concerning the guilt or innocence of accused. Knapp v. State, 79 N. E. 1076, 168 Ind. 153, 11 Ann. Cas. 604. 10 People V. Rodley, 63 P. 351, 131 Cal. 240. 11 Ala. Burk v. State, 75 So. 702,- 16 Ala. App. 110; Holmes v. State, 34 So. 180, 136 Ala. 80; Cunningham V. State, 23 So. 693, 117 Ala. 59. Conn. State V. Rathbun, 51 A. 540, 74 Conn. 524. D. C. Horton y. United States, 15 App. D. C. 310. Fla. Hall v. State, 83 So. 513, 78 Ma. 420, 8 A. L. R. 1234. Kan, State V. Logan, 85 P. 798, 73 Kan. 730. Mich. People v. Wood, 99 Mich. 620, 58 N. W. 638. Minn. State v. Rue, 75 N. W. 235, 72 Minn. 296. N. C. State V. Bowman, 80 N. C. 432. Instructions improper Tvithin rule. A requested charge that "be- fore you can convict each one of you must believe beyond all reasonable doubt" that accused committed the §274 INSTRUCTIONS TO JURIES 538 and while it is not the duty of the court to exhort the jury to agree/^ it is proper to instruct that a juror should not shut his. ears to anything said by his fellow jurors in opposition to his own views. ^* An instruction which requires the jury to acquit the defendant unless every member of the jury is persuaded of his guilt beyond a reasonable doubt is properly refused/* since, while there may be a mistrial because of the reasonable dSubt of one or more jurors less than twelve, there cannot be an acqiiittal unless all the jurors are reasonably doubtful of "the guilt of the defendant,^^ and in some jurisdictions it is proper to' charge, after having instructed - act charged, "and if either member of the jury have a reasonahle doubt" thereof he must so find, did more than require unanimity of belief of guilt beyond a reasonable doubt, and was bad, as making each juror the keeper of the consciences of the oth- ers, by asserting the duty of a single juror who doubts to find in accord- ance with his doubt. Troup v. State, 49 So. 332, 160 Ala. 125. An instruc- tion on reasonable doubt, that defend- ant was entitled to the verdict of 12 men, each of whom on the whole evi- dence must be free from any reason- able doubt in his own mind, not the minds of the prosecutors or the court, and each juror should be allowed to have his own conception of what a "reasonable doubt is to him, not what it is to the prosecution, and was un- der no legal compulsion to give or be able to formulate and state the rea- son which may raise a reasonable doubt in his mind and conscience, it being sufficient if any member of the jury in fact had any reasonable doubt, the defendant being then en- titled to his vote of not guilty on the verdict, was erroneous, and properly refused. Taylor v. State, 42 So. 608, 89 Miss. 671. 12 People V. Rodley, 63 P. 351, 131 Cal. 240. 13 Jackson v. State, 91 Wis. 253, 64 N. W. 838. 1* Ala. Wood V. State, 88 So. 28, 17 Ala. App. 654 ; Baader v. State, 75 So. 820, 16 Ala. App. 144; Strother v. State, 72 So. 566, 15 Ala. App. 106; Smith V. State, 72 So. 316, 197 Ala. 193 ; Bryant v. State, 68 So. 704, 13 Ala. App. 206, certiorari denied 69 So. 1017, 193 Ala. 673; Buckhanon v. State, 67 So. 718, 12 Ala. App. 36; Phillips V. State, 65 So. 444, 11 Ala. App. 15; Hall v. State, 65 So. 427, 11 Ala. App. 95 ; Harper v. State, 63 So. 23, 8 Ala. App. 346 ; Gaston v. State, 60 So. 805, 179 Ala. 1; Graves v. State, 52 So. 34, 166 Ala. 671 ; Grain V. State, 52 So. 31, 166 Ala. 1 ; Smith V. State, 51 So. 610, 165 Ala. 50 ; Park- er V. State, 51 So. 260, 165 Ala. 1; Howard v. State,' 50 So. 954, 165 Ala. 18; Reaves v. State, 48 So. 373, 158 Ala. 5; Shelton v. State, 42 So. 30, 144 Ala. 106; Teats v. State, 38 So. 760, 142 Ala. 58. Fla. Ayers v. State, 57 So. 349, 62 Fla. 14; McCall v. State, 46 So. 321, 55 Fla. 108; Boyd v. State, 33 Fla. 316, 14 So. 836. Iowa. State V. Rorabacher, 19 Iowa, 154. Mo. State V. Taylor, 134 Mo. 109, 35 S. W. 92. 15 Ala. Turner v. State, 49 So. 828i 160 Ala. 40; Outler v. State, 41 So. 460, 147 Ala. 39 ; Bardin v. State, 38 So. 833, 143 Ala. 74; Andrews v. State, 32 So. 665, 134 Ala. 47; Nevill v. State, 32 So. 596, 133 Ala. 99 ; Jim- ijierson v. State, 32 So. 141, 133 Ala. 18; Davis v. State, 31 So. 569, 131 Ala. 10; Littleton v. State, 29 So. 390, 128 Ala. 31. Ga. Price v. State, 40 S. E. 1015, 114 Ga. 855. Otl. Hodge v. Territory, 69 P. 1077, 12 Okl. 108. W. Va. State V. McCausland, 96 S. E. 938, 82 W. Va. 525. 539 INSTRUCTIONS ON DEGREE OF PROOF §275 that there can be no conviction if any juror is not convinced be- yond a reasonable doubt, that the jury cannot acquit unless they all entertain a reasonable doubt.^s but in other jurisdictions 'such a charge constitutes reversible error.^' Where the general charge covers the individual responsibility of each juror as to reasonable doubt, a special charge on the same subject is properly refused.^® § 275. Belief or doubt as men , In some jurisdictions an instruction that the oath taken by a juror imposes no obligation on him to doubt as a juror what he would believe from the evidence as a man without having taken an oath, or that a juror is not at liberty to disbelieve as a juror what he believes as a man, is proper.*^* It is an essential element of such an instruction that it require that the belief of the jurors as men should be derived from the evidence ; the proper form being that "you are not at liberty to disbelieve as jurors, if from the evidence you believe as men." ^^ Such an instruction is not re- 16 Whittle V. State, 89 So. 43, 205 Ala. 639; State v. Rogers, 56 Kan. 362, 43 P. 256. Requiring agreement either to con-rict or acquit. In a prosecution for homicide, a charge that all of the jury must agree before defendant can be acquitted or convicted was proper. Tribble v. State, 40 So. 938, 145 Ala. 23. Jury could not have been misled by an instruction that "the whole of your number must agree in finding the defendant guilty or not guilty." State V. Inich, 173 P. 230, 55 Mont. 1. 17 Stitz V. State, 104 Ind. 359, 4 N. E. 145. 18 State V. Phelps, 5 S. D. 480, 59 N. W. 471. 1 9 Cal. People S44, 113 Cal. 569. Colo. Perry v. 88 Colo. 23. Idaho. State v, V. Worden, 45 P. People, 87 P. 796, , Louie Moon, 117 P. 757, 20 Idaho, 202, Ann. Cas. 1913A, 724. 111. People V. Zajicek, 84 N. E. 249, 233 111. 198 ; Watt v. People, 126 111. 9, 18 -N. E. 340, 1 L. R. A. 403 ; Spies V. People, 122 111. 1, 12 N. E. 865, 3 Am. St. Rep. 320. Neb. Bothwell v. State, 99 N. W. 669, 71 Neb. 747; Reed v. State, 92 N. W. 321, 66 Neb. 184; Savary v. State, 87 N. W. 34, 62 Neb. 166 ; Lei- senberg v. State, 84 N. W. 6, 60 Neb. 628 ; hartley v. State, 73 N. W. 744, 53 Neb. 310; Fanton v. State, 69 N. W. 953, 50 Neb. 351, 36 L. R. A. 158 ; Barney v. State, 68 N. W. 636, 49 Neb. 515. Pa. Clark v. Commonwealth, 123 Pa. 555, 16 A. 795, 23 Wkly. Notes Cas. 317, following McMeen v. Com- monwealth, 114 Pa. 300, 9 A. 878. Doubt of an honest man outside the jury box. An Instruction that a reasonable doubt in the jury box is exactly the same kind of reasonable doubt that an honest man meets up with in human life was not error. State V. Pitt, 80 S. E. 1060, 166 N. C. 268, Ann. Cas. 1916C, 422. 2 People V. Kingcannon, 114 N. E. 508, 276 111. 251; Highley v. People, 177 P. 975, 65 Colo. 497 ; Robinson v. State, 106 P. 24, 18 Wyo. 216. Instruction held not to permit jury to return verdict based on their belief as men ivithout re- gard to the evidence. An instruc- tion correctly defining "reasonable doubt" and charging that the jury were not at liberty to disbelieve as jurors, if they believed as men, that their oath imposed no obligation on them to doubt where no doubt would §276 INSTRUCTIONS TO JURIES 540 garded as of much service in guiding the jury to a correct conclu- sion as to the amount of proof required in order to convict,^^ it not being commended even in jurisdictions where it is proper to give it,** and in some jurisdictions such an instruction is erroneous, and should be refused, as tending to relieve the jury from the obliga- tion of their oath,** or as being of no benefit and likely to mis- lead.** § 276. Doubt as to grade or degree of offense charged The court should so frame its charge as to leave no question that if the jury believe the defendant to be guilty of the crime charged agaitist him, but have a reasonable doubt as to whether defendant is guilty of the highest degree of the offense alleged, or of a lower degree, they should convict only of the lower degree,*^ and in some jurisdictions, the court should specially so charge, either of its own motion or on request.*® In other jurisdictions, where the exist, if no oath had been administer- ed, was not erroneous, in that it relieved the jury from the obligation of their oath and permitted them to return a verdict of guilty, based on their belief as men that accused was guilty, without regard to the evidence. McQueary v. People, 110 P. 210, 48 Colo. 214, 21 Ann. Cas. 560. ^21 People V. Clark (Gal.) 192 P. 521 ; People V. Whitney, 53 Cal. 420. 22 Holmes v. State, 118 N. W. 99, 82 Neb. 406; Clements v. State, 114 N. W. 271, 80 Neb. 313; Fife v. Com- monwealth, 29 Pa. 429. 23Iiid. Siberry v. State, 133 Ind. 677, 33 N. B. 681, following Cross v. State, 132 Ind. 65, 31 N. B. 473. N. Y. People V. Johnson, 140 N. Y. 350, 35 N. E. 604. W. Va. State v. Ringer, 100 S. E. 413, 84 W. Va. 546; State v. Price, 97 S. E. 582, 83 W. Va. 71, 5 A. L. R. 1247 ; State v. Young, 97 S. E. 134, 82 W. Va. 714; State v. McCausland, 96 S. E. 938, 82 W. Va. 525. 2* State V. Worley, 96 S. E. 56, 82 W. Va. 350 ; State v. Alderson, 82 S. B. 1021, 74 W. Va. 732 ; State v. Tay- lor, 50 S. B. 247, 57 W. Va. 228. Instructions held improper. An instruction closing, "In other words, what satisfies the mind outside of the jury box should do so within," is er- roneous, as tending to mislead the jury into believing that it would not be necessary for them to carefully weigh the facts proved. State v. Ruby, 61 Iowa, 86, 15 N. W. 848. Instructions held not improper 'nrithin rule. Where, in a prosecu- tion for manslaughter, the couirt in- structed that a reasonable doubt 1» not a vague or uncertain doubt, and that what the jury believes from the evidence as men they should believe as jurors, but later the court qualified this instruction as follows: "The court instructs the jury that notwith- ■ standing the instruction, given at the instance of the state, that a juror is not at liberty to doubt as a juror and believe as a man, yet if, on the evi- dence of this case, such doubt is rais- ed as would cause a juror to hesitate, and to refrain from acting, were it a grave business matter, then such doubt is a reasonable doubt, and such juror should give the defendant the benefit of that doubt," it was held that the instructions were correct. State V. Dickey, 37 S. E. 695, 48 W. Va. 325. 2 6 Shelton v. Commonwealth, 140 S. W. 670, 145 Ky. 543 ; Bwing v. Com- monwealth, 111 S. W. 352, 129 Ky. 237; Walker v. State, 214 S. W. 331, 85 Tex. Or. R. 482; Lagrone v. State, 209 S. W. 411, 84 Tex. Cr. R. 609. 20 Ind. Koehler v. State, 123 N. B. Ill, 188 Ind. 387; Coolman v. State, 72 N. E. 568, 163 Ind. 503. 541 INSTRUCTIONS ON DEGREE OF PROOF §277 court has charged the doctrine of reasonable doubt on the whole case, such an instruction is not required,*' in the absence of a re- quest,** or in the absence of some special showing of a necessity for it.*9 Such a charge is not one on the weight of the evidence, nor is it objectionable as intimating that the court is of the opin- ion that defendant is guilty of some degree of the ofEense charged.^* Where such an instruction is given, it should be expressed in language comprehensible to nonprofessional men,*i and it should require the doubt to be a reasonable one.** § 277. Giving benefit of doubt to state Instructions which give the benefit of a reasonable doubt to the state, or which tend to lead the jury to think that the defendant must prove his innocence beyond a reasonable doubt, are, of course, under the principles discussed in the preceding sections, errone- ous.** Iowa. State v. Walters, 45 Iowa, 389. Ky. McCandless v. Commonwealtli, 185 S. W. 1100, 170 Ky. 301 ; Demaree V. Commonwealth, 82 S. W. 231, 26 Ky. Law Rep. 507; Arnold 'V. Com- monwealth, 72 S. W. 753, 24 Ky. Law Eep. 1921 ; MuUms v. Commonwealth, 67 S. W. 824, 23 Ky. Law Eep. 2433; Williams v. Commonwealth, 80 Ky. 313, 4 Ky. Law Rep. 3; Fields v. Commonwealth, 5 Ky. Iiaw Rep. (ab- stract) 861. Duty to conform to statnte. An Instruction telling the jury that if they believed from the evidence be- yond a reasonable doubt that defend- ant was guilty, but had a reasonable doubt as to the degree of his offense, "they should find him guilty of that offense highest in degree of which they have no reasonable doubt." while not conforming to the Code provi- sion, as would have been better, was not prejudicial. Ireland v. Common- wealth, 57 S. W. 616, 22 Ky. Law Rep. 478. 27 Abbott V. State, 86 N. X. 460; Smith V. State (Tex. Cr. App.) 78 S. W. 517 ; Little v. State, 47 S. W. 984, 39 Tex. Cr. R. 654. 28 Hall V. State, 28 Tex. App. 146, 12 S. W. 739. Applying doctrine of reasonable doubt as between mnrder in sec- ond degree and manslanghter. Under the rule that, in a prosecution for homicide, the charge of the court should apply the doctrine of reason- able doubt, as between the different degrees involved in the case, an in- struction that, in order to warrant a verdict of murder in the second de- gree, the jury must believe from the evidence beyond a reasonable doubt that defendant committed the homi- cide with implied malice, etc., suffi- ciently applies the doctrine as be- tween murder in the second degree and manslaughter, in the absence of a request for a special instruction. Powell V. State, 28 Tex. App. 393, 13 S. W. 599. 2 McKinney v. State, 55 S. W. 175. so Tinsley v. State, 106 S. W. 347, 52 Tex. Cr. R. 91. 81 Eanes v. State, 10 Tex. App. 421. 82 Daughdrill v. State, 21 So. 378, 113 Ala. 7; Jackson v. State, 91 Ga. 271, 18 S. B. 298, 44 Am. St. Rep. 22; State V. May, 72 S. W. 918, 172 Mo. 630. 8 3 Ark. Bell V. State, 98 S. W. 705, 81 Ark. 16. D. C. Le Cointe v. United States, 7 App. D. C. 16. Ky". Hall v. Commonwealth, 13 Ky. Law Rep. (abstract) 399. Neb. Hayward v. State, 149 N. W. 105, 97 Neb. 9. Tex. Terrell v. State, 111 S. W. 152, 53 Tex. Or. R. 604; Godsoe v. §278 INSTRUCTIONS TO JURIES 542 § 278. Repetition of instructions After the court has once fully charged the jury as to the law of reasonable doubt, it is not required in each separate subsequent instruction to inform the jury as to its duty in the event of enter- taining a reasonable^ doubt of the guilt of the defendant.** One in- struction on the doctrine of reasonable doubt is sufficient, and a great number of additional instructions are open to objection on the ground that they are liable to lead the jury to believe that the state, 108 S. W. 388, 52 Tex. Or. R. 626. IxLstxiictions improper within rnle. An instruction In a homicide case- that "by 'reasonable doubt' is not meant that which of possibility may arise, but it is doubt engendered by the investigation of the whole proof, and an inability after such investiga- tion to let the mind rest easily upon the certainty of guilt or innocence." State V. Moss, 61 S. W. 87, 106 Tenn. 359. An instruction, on a prosecution for murder, on the issue of manslaugh- ter, that if the jury believed beyond a reasonable doubt that defendant shot deceased, and that previous thereto defendant had been informed by his wife that deceased had used insulting language to her, etc. Mel- ton v. State, 83 S. W. 822, 47 Tex. Or. R. 451. An instruction, "If you have a reasonable doubt that the animal slaughtered by defendant was not the property of C, the prosecutor, you will find defendant not guilty." Lan- ders V. State (Tex. Or. App.) 63 S. W. 557. Application of doctrine of rea- sonable douTit to defenses, see post, § 320. 3 4 Cal. People v. Waysman, 81 P. 1087, 1 Oal. App. 246; People v. Mc- Roberts, 81 P. 734, 1 Cal. App. 25. Fla.' Sylvester v. State, 35 So. 142, 46 Fla. 166. Ga. Miller v. State (App.) 107 S. E. 784; Thomas v. State, 91 S. E. 247, 19 Ga. App. 104, conforming to an- swers to certified questions, 91 S. B. 109, 146 Ga. 346; Hayes v. State, 88 S. B. 752, 18 Ga. App. 68; Thomas V. State, 88 S. B. 718, 18 Ga. App. 21 ; Montford v. State, 87 S. E. 797, 144 Ga. 582; Bowen v. State, 84 S. B. 793, 16 Ga. App. 179 ; Eaper v. State, 84 S. B. 560, 16 Ga. App. 121 ; Watts V. State, 71 S. B. 766, 9 Ga. App. 500; Harris v. State, 57 S. B. 937, 1 Ga. App. 136 ; Fargerson v. State, 57 S. B. 101, 128, Ga. 27 ; Tolbert v. State, 56 S. E. 1004, 127 Ga. 827; Goodin v. State, 55 S. E. 503, 126 Ga. 560 ; Cress V. State, 55 S. B. 491, 126 Ga. 564; Williams v. State, 54 S. B. 167, 125 Ga. 265 ; Davis v. State, 54 S. E. 126, 125 Ga. 299 ; Smith v. State, 52 S. E. 329, 124 Ga. 213; Carter v. State, 49 S. E. 280, 121 Ga. 360; Barnes v. State, 35 S. B. 396, 113 Ga. 189 ; Carr V. State^84 Ga. 250, 10 S. B. 626; Vann v.'^tate, 83 Ga. 44, 9 S. B. 945. III. Delahoyde v. People, 72 N. E. 732, 212 111. 554. Ind. Wheeler v. State, 63 N. E. 975, 158 Ind. 687 ; Deilks v. State, 141 Ind. 23, 40 N. B. 120; McCuUey v. State, 62 Ind. 428 ; Jones v. State, 49 Ind. 549. Iowa, State v. Christ, 177 N. W. 54 ; State v. Crouch, 107 N. W. 173, 130 Iowa, 478. Kan. State v. McDonald, 193 P. 179, 107 Kan. 568; State v. Byno, 74 P. 1114, 68 Kan. 348, 64 L. R. A. 303 ; State v. Fox, 62 P. 727,' 10 Kan. App. 578. , Ky. Lake v. Commonwealth, 104 S. W. 1003, 31 Ky. Law Rep. 1232 ; Pow- ers V. Commonwealth, 63 S. W. 976, 110 Ky. 386, 23 Ky. Law Rep. 146, 53 L. R. A. 245; Id., 61 S. W. 735, 110 Ky. 386, 22 Ky. l^aw Rep. 1807, 53 L. R. A. 245; McClemand v. Com- monwealth, 12 S. W. 148; Davis v. Commonwealth, 4 Ky. Law Rep. 717. Mo. State V. Washington, 146 .'^. W. 1164, 242 Mo. 401; State v. Strick- land, 90 S. W. 725, 191 Mo. 616 ; State V. Layton, 90 S. W. 724, 191 Mo. 613 ; State V. Coleman, 84 S. W. 978, 186 Mo. 151, 69 L, R. A. 381; State v. 543 INSTRUCTIONS ON DEGREE OF PKOOF §278 court is in doubt as to the guilt of the accused.^^ A statement in the opening part of the charge of the. court that the jury must be satisfied of the guilt of the defendant beyond a reasonable doubt need not be repeated every time the court refers to any finding from the evidence,*® and where the court properly charges on the presumption of innocence and reasonable doubt in its main charge, it is not required to repeat such matter in giving additional in- structions after receiving an informal verdict from the jury.*'' Under the above rule, an instruction which sets out the facts necessary to constitute the ofifense charged, and tells the jury that if they find those facts they shall bring in a verdict of guilty, is Pyscher, 77 S. W. 836, 179 Mo. 140; State V. McLaughlin, 50 S. W. 315, 149 Mo. 19; State v. Wright, 42 S. W. 934, 141 Mo. 833 ; State v. Good, 132 Mo. 114, 33 S. W. 790.- Neb. Dunn v. State, 79 N. "W. 719, 58 Neb. 807; Davis v. State, 70 N. W. 984, 51 Neb. 301; Carleton v. State, 43 Neb. 373, 61 N. W. 699. N. J. Brown v. State, 42 A. 811, 62 N. J. Law, 666. N. M. Territory v. Price, 91 P. 733, 14 N. M. 262. N. D. State v. Currie, 80 N. W. 475, 8 N. D. 545. Okl. Cole V. State (Cr. App.) 195 P. 901. Tex. Miller v. State, 189 S. W. 259, 80 Tex. Or. E. 226; Condron v. State, 155 S. W. 253, 69 Tex. Cr. E. 513 ; Price v. State, 70 S. W. 966, 44 Tex. Cr. E. 304; Eamirez v. State, 66 S. W. 1101, 43 Tex. Cr. E. 455 ; Ford V. State (Cr. App.) 56 S. W. 338; Edens v. State, 55 S. W. 815, 41 Tex. Cr. E. 522; Sanches v. State (Cr. App.) 55 S, W. 44. See State v. Calkins, 109 N. W. 515, 21 S. D. 24. Illnstrations of instructions properly refused ivitliin rule. Where, in a prosecution for assault, the court charged that the burden was on the prosecution to prove every element of the offense beyond a rea- sonable doubt, an instruction that, if the jury found from the evidence that some other person willfully, feloni- ously, and with malice aforethought assaulted prosecutor or committed any one of the lesser offenses includ- ed in that charge, and defendant aid- ed and abetted in the commission of the offense, then he was himself guilty of the same crime was not ob- jectionable for failure to require that such aiding and abetting must have been proved beyond a reasonable doubt. People v. Grow, 116 P. 369, 16 Cal. App. 147. Where the court has instructed the jury that, before they could convict the defendant of' the offense charged, every material fact necessary to constitute such of- fense must be proved by the evidence beyond a reasonable doubt, it was not reversible error to instruct them ' that: "It is for you to determine ' from all the evidence in the case whether or not the liquors sold by the defendant, if any, upon which the state relies for conviction, were in- toxicating, within the meaning of our statute," without repeating therein the charge with respect to burden of proof. State v. Kyne, 62 P. 728, 10 Kan, App. 277. Where the court charged that the state had the burden of establishing guilt beyond a reason- able doubt, and that, if such guilt was not so established, the jury should ac- quit, it was not error to refuse to charge that "if, from the evidence, there was any other hypothesis than the guilt of the accused, they must acquit him." State v. McDonald, 65 Me. 465. 3 5 People V. Miller, 127 N. E. 58, 202 111. 318 ; State v. Ferrell, 152 S. W. 33, 246 Mo. 322. 8 8 State V. Killian, 92 S. E. 499, 173 N. C. 792. 3 7 Johnson v. State (Tex. Cr. App.) 67 S. W. 412. § 278 INSTRUCTIONS TO JURIES 544 sufficient, if there is a separate instruction on reasonable doubt ;^* so where, in a homicide case, the defendant interposes the plea of self-defense,** or where the defense is an alibi,*" the court need not, in instructing on such defense, charge with respect to rea- sonable doubt, if it elsewhere gives a general charge on the subject of reasonable doubt, and, after charging that the guilt of defend- ant must be established to the satisfaction of the jury beyond a reasonable doubt, it is not necessary to repeat such statement in discussing the question whether a witness was an accomplice or an accessory .*! An instruction reiterating the right to convict on finding the defendant guilty beyond a reasonable doubt is improper.** A mere redundancy of instructions as to reasonable doubt, however, will not necessarily, and perhaps not usually, be a ground for reversal.** 38 State v. Lawson, 145 S. W. 92, *i State v. Brandell, 129 N. W. 242, 239 Mo. 591. 26 S. D. 642. 3 9Eggleston v. State, 128 S. W. *2 Comegys v. State, 137 S. W. 349, 1105, 59 Tex. Or. R. 542; Wallace v. 62 Tex. Cr. E. 231. State (Tex. Cr. App.) 97 S. W. 1050, *3 People v. Kuhn, 125 N. B. 882, *o State v. Rockett, 87 Mo. 666. 291 111. 154 ; People v. Sobzeak, 121 N. E. 592, 286 lU. 157. 345 PACTS ESTABLISHED OE ABSENCE OF PROOF, §280 CHAPTER XVIIl FACTS CONCIa Fayette v. Phipps, 101 ^ People v. Fanning, 131 N. Y. 659, S. E. 696, 24 Ga. App. 613 ; State v. 30 N. E. 569. Means, 50 A. 30, 95 Me. 364, 85 Am. = Turner v. State, 63 S. E. 294, 131 St. Rep. 421. Ga. 761; Duthey v. State, 111 N. W. If a cause is complicated, or the 222, 131 Wis. 178. law applicable to it not to be suppos- Designating contention of one ed to be within the knowledge of the party as a theory. .Charge refer- jury, and particularly if the trial Is ring to plaintifE's and defendant's of a charge of a high criminal of- "claims," and thereafter referring to fense, it is the' duty of the court to plaintiff's claim as the "theory" of point out to the jury the controverted the plaintiff, was not objectionable as questions of fact, and see that the law presenting plaintiff's case as a mere applicable thereto is given to the jury, theory, instead of one supported by either in the instructions of counsel or evidence ; the terms "claims" and in its own charge ; and where this is "theory" having been used in the not done, if justice is not accomplish- same sense, as is customary by trial ed a new trial will be granted. State courts. Di Maio v. Yolen Bottling V. Brainard, 25 Iowa, 572. Works, 107 A. 497, 93 Conn. 597. § 282 INSTRUCTIONS TO JURIES 548 his statement should be complete and accurate,* and an instruction which, after. stating substantially the allegations of the complaint, only says that the defendant denies certain of these allegations, wunout specifying them, is insufficient.'' A summary by the court of the entire cause, or of the facts proven, must not omit some of the facts, or ignore any issue material to the cause* A statement of the evidence should be fair and impartial,^ and if the court recapitulates the evidence for one side, it must give a like summary for the other. ^^ When the trial judge undertakes to state the tendencies of the evidence, care should be exercised that the statement sets forth the tendencies making for the support of the contentions of both parties.^^ Instructions purporting to summarize the principal facts, which minimize the evidence for one side,^* or call the attention of the jury only to those facts which are favorable to one of the parties,^* are consequently erroneous. How far the trial judge should go in such a summary, however, depends very largely on the circumstances of the case, and to some extent upon the arguments of counsel." The trial judge need only give the substance of the testimony, if counsel, after being asked if they wish a recapitulation of the evidence in detail, do not re- quest it,^^ and the court is not required to recapitulate every item of the evidence,'® it being sufficient if the review of the evidence fauly presents the course of the respective contentions of the par- ties, calls the attention of the jury to the principal questions, at e Key v. State, 94 S. E. 283, 21 Ga. 12 McCabe v. City of Philadelphia, App. 300. 12 Pa. Super. Ct. 383. 7 Rand V. Butte Electric Ky. Co., is Tanner v. Clapp, 139 111. App. 107 P. 87, 40 Mont. 398. 353. 8 Belvidere City Ry. Co. v. Bute, 1* Commonwealth v. Colandro, 80 128 111. App. 620; Mayr v. Hodge & A. 571, 231 Pa. 343; Commonwealth Homer Co., 78 111. App. 556; Delmar v. Penrose, 27 Pa. Super. Ct. 101. Oil Co. V. Bartlett, 59 S. E. 634, 62 is State v. Gould, 90 N. C. 658. W. Va. 700. 18 u. S. Stilson v. U. S., 40 S. Ct. 9 Sawyer v. Worcester Consol. St. 28, 250 U. S. 583, 63 L. Ed. 1154, af- Ry., 120 N. *.'e. 404, 231 Mass. 215 ; firming judgment (D. C. Pa.) U. S. v. Siracusa v. Miller Const. Co., 43 Pa. Stilson, 254 P. 120; AUis v. United Super. Ct. 466. States, 155 U. S. 117,. 15 Sup. Ct. 36, 10 Lamar v. King, 53 So. 279, 168 39 L. Ed. 91. Ala. 285 ; Moon v. State, 77 S. E. N. O. State v. Morris, 10 N. C. (3 1088, 12 Ga. App. 614 ; Hash v. Com- Hawks) 388. monwealth, 88 Va. 172, 13 S. E. 398 ; Or. State v. Newlin, 182 P. 133, 92 Sullivan v. Mauston Milling Co., 101 Or. 589. N. W. 679, 123 Wis. 360. Pa. Wally v. Clarlr, 106 A. 542, 11 Bates V. Birmingham Ry., Light 263 Pa. 322 ; Commonwealth v. Den- & Power Co., 82 So. 14, 203 Ala. 54. , nery, 102 A. 874, 259 Pa. 223. 549 SUMMING UP THE WHOLE CASE §282 issue,!' and assists the jury to recall the evidence as a substantial whole and to appreciate its bearing ; i* nor is it reversible error for the court to recite the testimony for one side more fully than that for the other, if the substance of the testimony for both parties is stated impartially,!* and the fact that the court takes more time in charging the jury in regard to the evidence for one side than he does in summing up the evidence for the other side does not of itself show an impropriety,^** nor is it necessary to give the tes- timony of each witness separately ,*! or to give the exact words of witnesses,^^ or to recapitulate the testimony of each witness in the consecutive order in which he is examined.** It is not improper for the court to state its memory of the evi- dence,** and where the facts or evidence are not complicated, it may be a sufficient summing up of the case for the court merely to read the notes of the evidence and charge the law in general terms.** In a criminal case, in the absence of a request for more definite 17 state T. Haney, 19 N. C. 390; Taylor v. Burrell, 7 Pa. Super. Ct. 461. Rnle under statute requiring summary. Where a statute requir- ed the court, in charging the jury, to "state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon," and defendant did not re- quest the court so to charge, nor was there any ohjection or exception to the charge for failure to comply with the statute, it was held that error could not be predicated of the failure of the court to go fully into the evi- dence, as it was plain and simple, and the jury's attention was directed to the material evidence in behalf of de- fendant, and they were instructed that, if it was true, he was not guilty. State V. Pritchett, 106 N. C. 667, 11 S. E. 357. Where a defendant charg- ed with a capital offense has pleaded "Not guilty," his consent that the judge need not read over his notes is not a waiver of his right under such statute to have the judge set forth such evidence as is required to give proper instructions. State v. Groves, 28 S. E. 262, 121 N. C. 563. 18 Commonwealth v. Kaiser, 39 A. 299, 184 Pa. St. 493, 42 Wkly. Notes Cas. 26 ; McCosh v. Myers, 25 Pa. Su- per. Ct. 61. ITndesirability of referring to every item, of evidence. It is not possible nor even desirable that the judge should refer to and emphasize every item of evidence on both sides in a way that counsel woUld consider adequate. In doing so he would run the risk of coming to speak as an ad- vocate rather than a judge. Nor is he required to go over all the evidence on a particular point every time he refers to the point in the course of his charge. Commonwealth v. House, 36 Pa. Super. Ct. 363, judgment re- versed 72 A. 804; 223 Pa. 487. 18 Jamison v. Hawkins, 18 Pa. ^u- per. Ct. 372. 20 Commonwealth v. Clemmer, 42 A. 675, 190 Pa. 202, 43 Wkly. Notes Cas. 539. 21 Maynard v. Tyler, 168 Mass. 107, 46 N. E. 413. 22 Berkman v. Friedman, 174 N. Y. S. 163, 105 Misc. Rep. 350. 28 State V. Jones, 97 N. C. 469, 1 S. E. 680. 24 Haskell v. Cape Ann Anchor Works, 59 N. E. 1113, 178 Mass. 485, 4 L. R. A. (N. S.) 220. 25 State V. Beard, 32 S. E. 804, 124 N. C. 811. § 282 INSTRUCTIONS TO JURIES 550 instructions, a statement that the grand jury has indicted the de- fendant for a named offense, and that he has filed a plea of not guilty, which makes the issue to be tried, sufficiently presents the issues.*^ The issues as defined by the statement of the court should be those finally presented to the jury on the pleadings and the evidence adduced.^' § 283. Remedy for inaccuracies or oimissions A party complaining of any inadequacy in the presentation by the court of his contentions to the jury, or of any inaccuracy of the trial judge in stating the testimony or of the failure of such summary to include certain details of the evidence should call the attention of the judge to such inaccuracy or omission and give him an opportunity to rectify it.** 2 6 Parks V. State, 100 S. B. 724, 24 N. O. State v. Chambers, 104 S. Ga. App. 243. Faison v. State, 79 S. E. 670, 180 N. C. 705 ; State v. Cole- E. 39, 13 6a. App. 180. man, 101 S. E. 261, 178 N. O. 757 ; " Dawson County Irr. Co. v. Daw- . storey v Stokes, 100 S. E 689, 178 N. son County, 173 N. W. 696, 103 Neb. ^^^^^^^ ^t^*! %f f *'°'„^2 ^ \^^l' fiof, •'' ' 173 N. C. 808; State v. Burton, 90 S. ^ T, ... c. . C-, c T^ E. 561, 172 N. C. 939 ; State v. Grady, 28 Ga. Pettigrew v. State, 81 S. E. 83 N C 643 446, 14 Ga. App 462; Williams v. pa'. Oehmler v. i-ittsburg Rys. Co., State, 48 S. E. 368, 120 Ga. 870. -25 Pa. Super. Ct. 617. Neb. Barton v. ShuU, 97 N. W. AVis. Horr v. C. W. Howard Pa- 292, 70 Neb. 324. per Co., 105 N. W. 668, 126 Wis. 160. 551 DECLARING LAW ON FACTS GROUPED FOB PURPOSE §284 CHAPTER XX GROUPING FACTS FOR PURPOSE OF DECLARING LAW THEREON OR DIRECTING VERDICT § 284. Necessity of hypothetical statement. 285. Propriety and necessity of instruction grouping facts. 286. Duty to include essential facts. 287. Duty not to include more than essential facts. Power of court to declare law on hypothetical statement of facts, see ante, §§ 116, 117, § 284. Necessity of hypothetical statement As we have seen in a preceding chapter, section 74, a charge as- serting disputed facts, instead of stating thern hypothetically, con- stitutes an invasion of the province of the jury. It follows, there- fore, that, on conflicting evidence, an instruction declaring the law on a certain state of facts should be hypothetical in form.^ Where the facts in a case are admitted, or not disputed, the court may charge directly on them without hypothesis,* and in some jurisdic- tions the rule is that in such case direct instructions ought to be given.* lAla. Shipp V. Shelton, 69 So. 102, 193 Ala. 658; Green v. Brady, 44 So. 408, 152 Ala. 507; Westbrook- V. Fulton, 79 Ala. 510. 111. Hopkinsom v. People, 18 111. 264. Ky. Thompson v. Thompson, 56 Ky. (17 B. Mon.) 22; Barclay v. Blackburn, 29 Ky. (6 J. J. Marsh.) 115. Md. Ricards v. "Wedemeyer, 75 Md. 10, 22 Atl. 1101. Mo. Watson v. Mustek, 2 Mo. 29. N. Y. Chapman v. Erie R. Co., 55 N. Y. 579; Gardner v. Clark, 17 Barb. 538; Gurney v. Smithson, 20 N. T. Super. Ot. (7 Bosw.) 396. N. C. Wilson V. HoUey, 66 N. C. 408. Pa. Bartley v. WiUiams, 66 Pa. 329; Delaware, li. & W. R. Co. v. Smith, 1 Walk. 88. Using figures by way of illustra- tiom. Although it is not considered a safe practice, it is not reversible error for a, judge, in charging the ju- . ry in a personal injury suit, to use figures by way of illustration in di- recting the jury how to estimate the present value of the loss of future earnings, where he clearly states to the jury that the figures are used merely by way of illustration, and with no intention of indicating what he thinks the verdict should be. Reed V. American Dyewood Co., 80 A. 873, 231 Pa. 431. 2 Ala. Bynon v. State, 23 So. 640, 117 Ala. 80, 67 Am. St. Ren. 163; Carter v. Chambei's, 79 Ala. 223; South & N. A. R. Co. V. McLendon, 63 Ala. 266; Nelms v. Williams, 18 Ala. 650; Williams v. Shackelford, 16 Ala. 318 ; Henderson v. Mabry, 13 Ala. 713. Tex. Hedgepeth v. Robertson, 18 Tey. 858. 3 Ala. Swift V. Fitzhugh, 9 Port. 39. Ga. Thornton v. Lane, 11 Ga. 459. Mich. Wisner v. Davenport, 5 Mich. 501. N. Y. Powers v. Ingraham, ■ 3 Barb. 576. §285 INSTRUCTIONS TO JUEIES 652 § 285. Propriety and necessity of instruction grouping facts In some jurisdictions the court is prohibited by statute from charging upon the effect of evidence, in the absence of a request so to do by one of the parties.* But while it is held that the prac- tice of grouping facts on which a party relies is not to be encour- aged, because not the safest method,^ and because it tends unduly to magnify the importance of the matters suggested for special mention,* and because such grouping does not harmonize with the recognized distinction between the function of the court and jury in the determination of questions of fact,'' it is nevertheless held in most jurisdictions that an instruction groupir^g the facts, so as to present the theory of one party or the other, and charging the law thereon, will not be erroneous,* where the grouping is *Ala. Edmunds v. State, 76 So. 466, 16 Ala. App. 182; Blrmmgham Southern K. Co. v. Morris, 63 So. 768, 9 Ala. App. 530; Birmingham Ey., Light & Power Co. v. Elmitt, 57 So. 1015, 3 Ala. App. 664 ; Hughes v. Al- bertville Mercantile Co., 57 So. 98, 3 Ala. App. 462; Birmingham Ry., Light & Power Co. v. Murphy; 56 So. 817. 2 Ala. App. 588; Campbell v. State, 43 So. 743, 150 Ala. 70; Gaf- ford V. State, 28 So. 406, 125 Ala. 1; Beasley v. State, 50 Ala. 149, 20 Am. Eep. 292. Instructions improper ixrithin rule. Fidelity & Deposit Co. of Maryland v. Art Metal Const. Co., 50 So. 186, 162 Ala. 323. Under the Alabama statute, the court may, however, when the evi- dence is in dispute, state the evidence and Its tendencies, and In so doing may state the respective theories of the parties. Murray v. State, 69 So. 354, 13 Ala. App. 175; Dennis v. State, 20 So. 925, 112 Ala. 64. Shoe- make V. State, 86 So. 151, 17 Ala. App. 461. St. Louis, B. & M. Ry. Co. v. Drod- dy (Tex. Civ. App.) 114 S. W. 902. An instmction ivhicb states tbe facts from the standpoint of plaintife, and tells the jury, if they believe these facts to be true, to find for plaintiff, is objectionable, as de- tailing the facts in evidence. Mitch- ell-Tranter Co. V. Ehmett, 65 S. W. 835, 23 Ky. Law Rep. 1788, 55 L. E. A. 710. e Hanson v. City of Anamosa, 158 N. W. 591, 177 Iowa, 101 ; Van Nor- man V. Modern Brotherhood of Amei- ica, 121 N. W. 1080, 143 Iowa, 536. 7 Peterson v. Baker, 97 P. 373, 78 Kan. 337; Eoberson v. Stokes, 106 S. E. 151, 181 N. C. 59. Giving supplemental instrne- . tions to avoid misleading jury. ■Where an instruction groups together a number of facts or circumstances similar to, or identical with, those disclosed by the evidence and, assum- ing or taking for granted the exist- ence of such facts or circumstances, draws legal conclusions therefrom, an improper impression may be made upon the minds of the 'jury, unless some other instruction is given, leav- ing it to the jury to determine the existence of such facts or circum- stances, Swigart v. Hawley, 29 N. E. 883, 140 111. 186, and it is accord- ingly proper, and may be the duty of the court, to give such a supplement- al instruction. People v. Chadwick, 76 Pac. 884, 143 Cal. 116; Swigart v. Hawley, 29 N. E. 883, 140 111. 186. 8 Pittsburgh, O. & St. L. R. Co. v. Noel, 77 Ind. 110, following Louis- ville, N. A. & C. R. Co. V. Richardson, 66 Ind. 43, 32 Am. Rep. 94; Skiles V. State, 123 N. W. 447, 85 Neb. 401 ; Kerr Grain & Hay Co. v. Marion Cash Feed Co., 103 S. E. 375, 179 N. C. 654; State v. Watkins, 75 S. E. 22, 159 N. 0. 480. 553 DECLARING LAW ON PACTS GROUPED FOR PURPOSE 286 not such as to confuse or mislead the jury or indicate the opinion of the court,* and that in a proper case a party is entitled to such an instruction/* and in some jurisdictions it is held that a general instruction to render a certain verdict on finding certain facts is wrong only when it omits facts necessary to the conclusion." Such a hypothetical statement should have support in the evi- .dence,^^ and should fairly present the case shown in evidence.^* The facts included in such a statement must be the ultimate ones," since, as shown in another place,^^ inferences of fact from other facts are exclusively for the jury to make. § 286. Duty to include essential facts As indicated by the foregoing statement, an instruction which directs a particular verdict, if the jury find from &e evidence that certain facts exist, must embrace all the facts and conditions nec- essary to such a verdict,^® and an instruction which directs a ver- 9 St. Louis S. W. Ry. Co. of Texas V. Byers (Tex. Civ. App.) 70 S. W. 558. 10 Colo. Stoltz V. People, 148 P. 865, 59 Colo. 342. Pa. Hood V. Hood, 2 Grant. Cas. 229. Tex. Hannes v. Raube (Civ. App.) 210 S. W. 985 ; Texas & N. O. R. Co. V. Harrington (Civ. App.) 209 S. W. 683; Southern Kansas Ry. Co. of Texas v. Wallace (Com. App.) 206 S. W. 505, reversing judgment (Civ. App.) 152 S. W. 873 ; Texas & P. Ry. Co. V. Johnson, 118 S. W. 1117, 55 Tex. Civ. App. 495; St. Louis, B. & M. Ry. Co. v. Droddy (Civ. App.) 114 S. W. 902. ■Wis. McDonell v.' Dodge, 10 Wis. 106. 1 1 Jackson v. Southern Pac. Co., 103 P. 1098, 11 Cal. App. 101. 12 Ga. Jackson v. State, 88 Oa. 784, 15 S. E. 67T; Willis v. Willis, 18 Ga. 13. Minn. Chandler v. De Graff, 25 Minn, 88. Mo. Wise V. Wabash R. Co., 115 S. W. 452, 135 Mo. App. 230; Brad- ford V. Pearson, 12 Mo. 71. N. O. State V. Collins, 30 N. 0. 407. 13 Oliver v. State, 39 Miss. 526; Murphy's Hotel v. Cuddy's Adm'r, 97 S. B. 794, 124 Va. 207 ; Life Ins. Co. of Virginia v. Hairston, 62 S. E. 1057, 108 Va. 832, 128 Am. St. Rep. 989. 1* Maltby v. Northwestern Virginia R. Co., 16 Md. 422. 16 Ante, §§ 58-62. 16 Ala. Alabama Great Southern R. Ck>. V. Loveman Compress Co., 72 So. 311, 196 Ala. 683; Louisville & N. R. Co. v. Rice, 101 Ala. 676, 14 So. 639 ; Pritchett v. Monroe, 22 Ala. 501 ; Dill V. Camp, 22 Ala. 249 ; Row- land V. Ladiga's Heirs, 21 Ala. 9. Cal. Gallagher v. Williamson, 23 Cal. 331, 83 Am. Dec. 114. Colo. Kent v. Treworgy, 125 P. 128, 22 Colo. App. 441. ' Ga. Towns v. Kellett, 11 Ga. 286 ; Idaho. Johnson v. Praser, 2 Ida- ho (Hash.) 404, 18 P. 48; Deasey v. Thurman, 1 Idaho, 775. m. Dowdey v. Palmer, 122 N. E. 102, 287 111. 42; Illinois- Cent. R. Co. V. Warriner, 82 N. E. 246, 229 111. 91, affirming judgment 132 111. Appv 301 ; Chicago Consol. Traction Co. v. Schritter, 78 N. E. 820, 222 lU. 364, affirming judgment 124 111. App. 578 ; Bradley v. Vandalla R. Co., 207 111. App. 592; Conrad v. St. Louis, S. & P. R. Co., 201 111. App. 276 ; Richards V. Illinois Cent. R. Co., 197 111. App. 282 ; Reynolds v. Alton, Granite City & St. Louis Traction Co., 183 111. App. 538; Schultz v. Bumwell Coal Co., 180 111. App. 693 ; Carroll v. Chicago City Ry. Co., 180 111. App. 309 ; Fisch- § 286 INSTRUCTIONS TO JURIES 554 diet if the jury finds that the case as laid in the declaration is er V. Chicago & W. I. R. Co., 171 III. App. 347; Pfohman v. Chicago & A. R. Co., 164 111. App. 190 ; Hemiigh v. Cleveland, C, C. & St. L. Ry. Co., 143 111. App. 283; Gould v. Aurora, E. & C. Ry. Co., 141 111. App. 844 ; Hard- ing V. Thuet, 124 111. App. 437 ; New Ohio Washed Coal Co. v. Hindman, 119 111. App. 287 ; Alton Light & Trac- tion Co. V. Oiler, 119 111. App. 181, judgment affirmed Same v. Oliver, 75 N. E. 419, 217 111. 15, 4 L. R. A. (N. S.) 399; Chicago City Ry. Co. v. O'Donnell, 114 111. App. 359; West Chicago St. Ry. Ca v. Winters, 107 111. App. 221 ; Dauchy Iron Works V. Toles, 107 111. App. 216; Chicago City Ry. Co. v. Mauger, 105 111. App. 579 ; McNulta v. Jenkins, 91 111. App. 309 ; Chicago Athletic Ass"!! v. Eddy Electric Mfg. Co., 77 111. App. 204;- Lake Shore & M. S. Ry. Co. v. Beam, 11 111. App. 215. Imd. City of Decatur v. Eady, 115 N. E. 577, 1S6 Ind. 205, L. R. A. 1917E, 242 ; Chicago, I. & Ii. Ry. Co. V. Iiake County Savings & Trust Co., 114 N. B. 454, 186 Ind. 358; Neeley V. Ivouisville & S. I. Traction Co., 102 N. E. 455, 53 Ind. App. 659; Bragg V. Eagan, 98 N. E'. 885, 51 Ind. App. 513, Wyman v. Turner, 14 Ind. App. 118, 42 N. E. 652; Larue v. Russell, 26 Ind. 386. Iowa. McNamara v. Dratt, 40 Iowa, 413. Md. Carrington v. Graves, 89 A. 237, 121 Md. 567 ; Maryland & D. R. Co. V. Porter, 19 Md. 458 ; Peterson's Ex'rs V. EUicott, 9 Md. 52; Beall v. Beall, 7 Gill, 283. Miss. Dean v. Tucker, 58 Miss. 487; Meyer v. Blakemore, 54 Miss. 570. Mo. Clayton Lumber Co. v. Seever (App.) 223 S. W. 442; Shortridge v. Raiffeisen, 222 S. W. 1031, 204 Mo. App. 166; Albritton v. Kansas City, 188 S. W. 239, 192 Mo. App. 574; Rlssmiller v. St. Louis & H. Ry. Co. (App.) 187 S. W. 578; Birtvchistle v. Woodward, 95 Mo. 113, 7 S. W. 465 ; Booths V. Loy, 83 Mo. App. 601; Thomas v. Babb, 45 Mo. 384; Chap- pell V. Allen, 38 Mo. 213. Neb. Standard Distilling & Dis- tributing Co. V. Hiarris, 106 N. W. 582, 75 Neb. 480; Levy v. Cunningham, 76 N. W. 882, 56 Neb. 348; Consaul V. Sheldon, 35 Neb. 247, 52 N. W. 1104. Okl. Murphy v. Hood & Lumley, 73 P. 261, 12 Okl. 593. Tex. Bering Mfg. Co. v. Femelat, 79 S. W. 869, 85 Tex. Civ. App. 36; Willoughby v. Townsehd, 45 S. W. 861, 18 Tex. Civ. App. 724. Va. Winn Bros. & Baker v. Lips- combe, 103 S. R. 628, 127 Va. 554; Carpenter v. Smithey, 88 S. E. 321, 118 Va. 533; Jones' Adm'r v. City of Richmond, 88 S. E. 82, 118 Va. 612 ; Hawkins & Buford v. Edwards, 84 S. E. 654, 117 Va. 811 ; Pocahontas Consol. Collieries Co. v. H'airston, 83 S. E. 1041, 117 Va. 118; Hughes v. Kelly, 30 S. E. 387. W. Va. Penix v. Grafton, 108 S. E. 106, 86 W. Va. 278 ; Stuck v. Kan- awha & M. Ry. Co., 89 S. E. 280, 78 W. Va. 490;" Petry v. Cabin Creek Consol. Coal Co., 88 S. E 105, 77 W. Va. 654: McVey v. St. Clair Co., 38 S. E 648, 49 W. Va. 412; Ward v. Ward, 35 S. E. 873, 47 W. Va. 766; Claiborne v. Chesapeake & O. Ry. (3o., 33 S. E. 262, 46 W. Va. 363; Pnix: V. Chesapeake & O. R. Co., 83 S. E. 255, 46 W. Va. 538; McCreery's Adm'x V. Ohio River B. Co., 27 S. E. 827, 43 W. Va. 110; Wooddell v. West Virginia Imp. Co., 38 W. Va. 28, 17 S. E. 886 ; Thompson v. Douglass, 35 W. Va. 337, 13 S. B. 1015. It is proper to refuse an instruc- tion predicated on a partial and im- perfect state of facts as shown by the testimony. City of Atchison v. King, 9 Kan. 550; Himes v. McKin- ney, 3 Mo. 382. Instructions erroneous within rule. In a passenger's action against a carrier for failure to permit her to alight at her destination, a charge that before a verdict could be ' ren- dered for plaintiff the jury must be reasonably satisfied that the station was not called In a distinct and au- dible tone in the ear in which plaintiff was riding held properly refused, as 555 DECLARING LAW ON FACTS GROUPED FOR PURPOSE § 286 proved should not be given where the declaration does not con- failing to hypothesize that the name of the station was called a reason- able time before plaintifC was to get off. Central of Georgia Ry. Co. v. Bamitz, 84 So. 474, 17 Ala. App. 201. In prosecution for grand larceny by stealing sawlogs, instruction that if the jury found the defendant took the logs but claimed ownership and mani- fested ownership by words and acts at the time, then this would rebut any felonious taking under the law, and defendant was not guilty, was prop- erly refused, since it disregarded the element of good faith in the claim of ownership. Bridgeman v. State (Ark.) 225 S. W. 1. Where an inter- est in a logging contract has been sold under representations amounting to a warranty, and it appears that vendee is entitled to an abatement from the purchase money because of damages occasioned by the breach of the warranty, it is .error to give a binding instruction which ignores the evidence of the breach of the war- ranty. Myers v. Cook (W. Va.) 104 S. E. 593. While negligence may be predicated as a matter of law on the fact that an automobile is being driv- en in the nighttime at such a rate of speed that it cannot be stopped within a radius illuminated by its lights, it was erroneous for the court to lay down the general rule of law that it is negligence per se to drive an auto- mobile at night at a rate of speed which will not i>ermit stopping with- in such distance; such instruction not taking into account the degree of darkness of the night or known con- ditions of the road. Ham v. Los An- geles County (Cal. App.) 189 P. 462. Where, under the evidence, part of the damages to plaintiff's lands might have been the result of an ordinary flood, in connection with defendant's filling in the lowlands on one side of the stream, though part of it might have been the result of an extraordina- ry flood, an instruction requesting a verdict for defendant on the finding of there having been , an extraordinary flood was properly refused, as based on a part of the evidence only. Sloss- Sheffield Steel & Iron Co. v. Mitchel;, 52 So. 69, 167 Ala. 226. Instrnctions not improper ivitb- in rule. In an action against a rail' road company, an instruction that if the jury believed from the evidence that the engine was derailed, and that the derailment, if any, was caus- ed by the condition they found the track to have been in, yet, if they be- lieved from the evidence, that the de- fendant was not negligent in having and permitting the track to be in the condition it was in, or if they believed from the evidence that plaintiff was not injured, or if they believed that the track was not in a safe condition, and that such condition was occasion- ed solely by unusual rainfall, which could not have been foreseen, they should return a verdict for defendant, was not objectionable as stating all the terms and conditions upon which defendant was entitled to a verdict, and as afiirmatively excluding all other matters. Galveston, H. & S. A. Ry. Co. V. Roberts (Tex. Civ. App.) 91 S. W. 375. In an action against a railroad company, an instruction that if the jury believed from the evidence that the railroad track at the place where the engine was de- railed was in a defective condition, and that defendant was negligent, and such negligence, if any, was the direct cause of plaintiff's injuries, if any, they should find for plaintiff, was not objectionable as undertaking to submit all the issues and excluding the principal defense, that the action was due to a hidden defect in the em- bankment which could not have been discovered. Galveston, H. & S. A. Ry. Co. V. Roberts (Tex. Civ. App.) 91 S. W. 375. Charge on particular phase of case. If an instruction in an action for breach of contract directs a ver- dict for either party or amounts to such a direction in case the jury shall find certain facts, it must necessarily contain all the facts which will au- thorize the verdict directed, and it is immaterial that it does not under- take to instruct the jury as to the §286 INSTRUCTIONS TO JDEIB3 556 tain all the averments necessary to entitle the plaintifiE to recover." Prayers for instruction which conclude with a direction to find a verdict for the party offering them must include every fact and circumstance in evidence that might justify an adverse conclusion, and make it clear that, on the evidence thus presented, the adverse party has no right to a verdict in his favor.^* If an instruction directing a verdict on the finding of facts so grouped omits an essential fact, the omission cannot be supplied by another instruc- tion." In criminal cases an instruction purporting to state hypotheti- cally the facts which, if believed by the jury^ will warrant a con- viction, is erroneous if it omits an element necessary to such con- viction,*" and where an accused asks for instructions embodying the principle of law entitling him to an acquittal, all the elements required to estahlish such principle must be stated among the facts.*^ If such an instruction, however, embraces all the ultimate or essential facts, its omission to recite circumstances not controlling will not render it erroneous,^* and the omission of a material ele- ment will constitute harmless error, where the tecord shows that whole case but only as to particular parts of the contract. Farmers' lieague & Community Telephone Ass'n V. Ohio & Mississippi Valley Tele- phone Co., 194 111. App. 166. Charge on one of t'wo theories of case. In the absence of a motion to make more definite and certain a peti- tion so drawn as to permit a, recov- ery by plaintiff for noncompliance with a condition precedent in a sale or for breach of warranty, the court is not in error in charging on either theory, but a charge on either theory must Include all the essential ele- ments 6f a recovery on such theory. Henry Gaus & Sons' Mfg. Co. v. Ma- gee, Lattimore & la Berge Mfg. Co., 42 Mo. App. 307. 17 Peters v. Howard, 206 111. App. 610 ; Hoxsey v. St. Louis & S. Ky. Co., 171 111. App. 109; Latham v. Cleveland, C, C. & St. L. By. Co., 164 111. App. 559. 18 United States v. Metropolitan Club of City of Washington, 11 App. D. C. 180. IS Gage v. City of Vienna, 196 111. App. 585; American Sheet & Tin Plate Co. V. Bucy, 87 N. E. 1051, 43 Ind. App. 501. 2 Gregg V. People, 98 111. App. 170 ; Eahke v. State, 81 N. E. 584, 168 Ind. 615 ; Davidson v. State, 34 N. B. 972, 135 Ind. 254; Bode v. State, 113 N. W. 996, 80 Neb. 74. Instrnotions improper trithin TnJe. In a prosecution for larceny of a yearling, where defendant claimed that he bought the animal from an- other and the whole defense was bot- tomed on that theory, a general in- struction, purporting to cover all ele- ments of the offense, which after charging on the burden of proof au- thorized conviction, if defendant con- verted to his own use the animal and it belonged to the prosecuting wit- ness, was erroneous because it omit- ted the essential element of felonious or criminal intent. Johnson v. State, 219 S. W. 32, 142 Ark. 573. 21 State V. Guldor, 37 So. 622, 113 La. 727. 2 2 Farley v. Smith, 39 Ala. 38; Illi- nois Cent. K. Co.,v. Byrne, 68 N. B. 720, 205 111. 9, affirming judgment 105 111. App. 96 ; Chicago & A, R. Co. v. 557 DECLAEING LAW ON FACTS GROUPED FOR PURPOSE § 287 the negation of the element omitted was not relied on by the adverse party.** Moreover, a party may ask for a charge on the facts as he sees them, and is not required to include facts upon which his adver- sary relies.** All that the law requires is that an instruction based upon some particular hypothesis warranted by the evidence, which undertakes to summarize the elements in the cause essential to a recovery upon that theory, must not omit any essential matter,*^ and it will be sufficient if all the essential facts are included, al- though only by inference.*® § 287. Duty not to include more than essential facts An instruction in which the court groups certain facts, and de- clares that if the jury find such facts to exist a party will be en- titled to a certain verdict, is erroneous, if the party would be so entitled on the finding of any one of such facts.*' Harrington, 61 N. E. 622, 192 111. 9; affirming judgment 90 111. App. 638. 23 St. Louis, A. & T. H. E. Co. v. Holman, 155 111. 21, 39 N. E. 573, af- firming 58 111. App. 617. 2*111. Kelly viUe Coal Co. v. Strine, 75 N. E. 375, 21T 111. 516; O'Leary v. Zindt, 109 111. App. 309; Mt. Olive & S. Coal Co. v. Bademach- er, 60 N. E. 888, 190 111. 538, affirming judgment 92 lU. App. 442. Md. Woodward v. Dudley A. Tyng & Co., 91 A. 166, 123 Md. 98; Wll- Uams V. Woods, 16 Md. 220; Day v. Day, 4 Md. 262. Mo. Harrod v. Hammond Packing Co., 102 S. W. 637, 125 Mo. App. 357 ; Hester v. Jacob Dold Packing Co., 84 Mo. App. 451. Rigbt of plaintiff to exolnde af- flnnatiTe defense. Since want of probable cause is a part of the cause of action of tbe plaintiff in an ac- tion for malicious prosecution, an instruction in such an action, au- thorizing verdict for plaintiff on find- ing malice alone, and ignoring the element of want of probable cause, Is erroneous; the rule that an instruc- tion covering plaintiff's case need not include an affirmative defense, but may leave such defense to be covered by defendant's instructions, not ap- plying. De Witt V. Syfon, 211 S. W. 716. 202 Mo. App. 469. 2B Springfield Consol. Ry. Co. v. Hoeffner, 51 N. E. 884, 175 111. 634, affirming judgment 71 111. App. 162. 2 6 Reno V. City of St. Joseph, 169 Mo. 642, 70 S. W. 123. 27HIghtower v. State, 110 S. W. 750, 53 Tex. Cr. B. 486. §288 INSTEUCTIONS TO JURIES 558 CHAPTER XXI EXCLUSION OF EVIDENCE FROM CONSIDERATION OF JURY § 288. Evidence improperly admitted. 289. Evidence which has been excluded, withdrawn, or already stricken out. 290. Evidence on issues not submitted to jury. 291. Effect of erroneous refusal to instruct against considering certain evidence. 292. Necessity of request for instruction to disregard evidence. § 288. Evidence improperly admitted Where evidence which is not material to the issues, or which is improper for any reason, has been admitted, the court may,^ and should,* on request,* by its charge correct such error, by ex- 1 Ala. Foxworth v. Brown, 24 "So. 1, 120 Ala. 59. Ga. Wyatt V. State, 88 S. E. 718, 18 Ga. App. 29; Cook v. J. I. Case Threshing Mach. Co., 87 S. E. 832, 17 Ga. App. 543; Williams V. State, 33 S. E. 648, 107 Ga. 721 ; Myers v. State. 25 S. E. 252, 97 Ga. 76. Ind. Uttfer V. Vance, 7 Blackf. 514. Ky. Chesapeake & O. Ey. Co. v. Stein, 134 S. W. 1169, 142 Ky. 515. Mo. White V. Gray, 32 Mo. 447. Tex. Stevens v. State (Cr. App.) 49 S. W. 105. Wis. Campbell v. Moore, 3 Wis. • 767. Compare ECall v. Earnest, 36 Barb. (N. T.) 585. Statements by counsel. It is proper to Instruct the jury to disre- gard statements by counsel, not sworn as witnesses, as to their personal knowledge of adverse witnesses, made to discredit them. Van Alstine v. Kaniecki, 109 Mich. 318, 67 N. W. 502. 2 Colo. Rio Grande Southern E. Co. V. Campbell, 96 P. 986, 44 Colo. 1. lU. Pittraan v. Gaty, 10 111. (5 Gilman) 186. Ind. Gallivan v. Strickler, 118 N. E. 679, 118 Ind. 201. Iowa. International Harvester Co. of America v. Chicago, M. & St. P. Ry. Co., 172 OM. W. 471, 186 Iowa, 1207; Dilly v. PaynsvlUe Land Co., 155 N. W. 971, 173 Iowa, 536. Me. Harlow v. Perry, 96 A. 775, 114 Me. 460, Ann. Cas. 1918C, 37. Mo. Smith v. Bailey, 209 S. W. 945, 200 Mo. App. 627; Gutzweiler's Adm'r v. Lackmann, 39 Mo. 91. N. M. Price v. Wood, 54 P. 231, 9 N. M. 397. Ohio. Geiger v. State, 71 N. E. 721, 70 Ohio St. 400; Henkle v. Mc- Clure, 32 Ohio St. 202. " Pa. Commonwealth v. Duffy, 49 3 Ga. Schmidt v. Mitchell, 43 S. E. 371, 117 Ga. 6. 111. Barr v. Wilmington Coal Min. & Mfg. Co., 5 111. App. (5 Bradw.) 442. Ind. Eppert v. Hall, 133 Ind. 417, 31 N. E. 74, 32 N. E. 713. Kan. Guthrie v. Merrill, 4 Kan. 187. N. Y. Woolsey v. Trustees of Vil- lage of EUenville, 50 N. E. 270, 155 N. Y. 573, affirming judgment, 32 N. Y. S. 546, 84 Hun, 236; O'Dell v. Bon- ta. 142 N. Y. S. 179, 157 App. Div. 349. Harrington v. City of Buffalo, 50 Hun, 601, 2 N. Y. Supp. 333, judgment re- verged 121 N. Y. 147, 24 N. E. 186. S. C. Fass V. Western Union Tel- egraph Co., 64 S. E. 233, 82 S. C. 461. Tex. Ft. Worth & D. C. Ry. Co. v. Speer (Civ. App.) 212 S. W. 762; Occi- dent Fire Ins. Co. v. Linn (Civ. App.) 179 S. W. 523 ; W. P. Carmichael Oo. V. Miller (Civ. App.) 178 S. W. 976; Byrd Irr. Co. v. Smyth (Civ. App.) 157 S. W. 260. 559 EXCLUSION OP EVIDENCE §288 eluding the consideration of such evidence from the jury, or directing them to disregard it. Under the above rule the jury may be instructed to disregard certain evidence if they find certain things to be true,* and counsel, objecting to a hypothetical question asked of .an expert witness, on the ground that it assumes facts not proved, may have the court instruct the jury to disregard the testimony of the expert unless they are satisfied that all the mat- ters assumed as facts in such question, and on which it is based, are true,^ and where the direct testimony of a witness is entirely destroyed by his cross-examination, it is proper to tell the jury to disregard such direct testimony.* Where the state seeks to introduce evidence as a link in the chain of circumstances against the defendant in a criminal case, its relevancy can only be determined after the judge has heard it, and, if irrelevant, he must instruct the jury to disregard it.' Where, however, incompetent evidence is brought out by a party in cross-examinilig the witnesses for the other side, he is not en- titled to have the jury instfucted to disregard such evidence.* Pa. Super. Ct. 344; Cominonwealtli V. I/yncli, Id., 370 ; Commonwealth v. Sweeney, Id. ; Commonwealth v. Sho- bert, Id. 371; Commonwealth v. De- bussey, Id.; Devling v. Williamson, 9 Watts, 311. S. C. Massillon Sign & Poster Co. V. Buffalo Lick Springs Co., 61 S. E. 1098, 81 S. C. 114. Teim. Low v. State, 65 S. W. 401, 108 Tenn. 127. Tex. Bartlesville Zinc Co. v. Cam- pania Minera Ygnado Rodriguez Ra- mos, g. A. (Civ. App.) 202 S. W. 1048 ; Scott V. State, 166 S. W. 729, 73 Tex. Cr. R. 622 ; Omer v. State, 143 S. W. 935, 65 Tex. Cr. R. 137. Bradley v. State, 132 S. W. 484, 60 Tex. Cr. R. 398; Hollins v. State (Cr. App.) 69 S. W. 594; Wilson v State, 51 S. W.' 916, 41 Tex. Cr. R. 115. Wash. Bentley v. Western Union Telegraph Co., 167 P. 1127, 98 Wash. 431, L. R. A. 1918B, 965. ■W. Va. Patton v. Elk River Nav. Co., 13 W. Va. 259. Evidence \rhose relevancy de- pends on introduction of otber evidence. Evidence, the relevancy of which does not appear at the time, may nevertheless be competent, where it is proiKtsed to connect it with the fact to be proved by other evidence ; but, if it should not be so connected, the court should instruct the jury to disregard it. Bedell v. Janney, 9 111. (4 Oilman) 193. 4 Dowdy V. Watson, 41 S. E. 266, 115 Ga. 42 ; Pittman v. Gaty, 10 111. (5 Oilman) 186. s Hallawell v. Union Oil Co. of Cal- ifornia, 173 P. 177, 36 Cal. App. 672. -^ 8 NiendorfC v. Manhattan Ry. Co., 4 App. Div. 46, 38 N. Y. S. 690. 7 State V. McKowen, 53 So. 353, 126 La. 1075. 8 Smith V. State, 73 So. 188, 72 Pla. 263; Gray v. State, 178 S. W. 337, 77 Tex. Cr. R. 221. Evidence lironglit out by accus- ed on cross-examination of ac- complice. Where, on the cross-ex- amination of an accomplice, defend- ant made the witness his own, and brought out acts and declarations not^ inquired about by the state, made by the witness after the killing In defendant's absence, which tended to connect him with the crime, de- fendant was not entitled to an in- struction eliminating such acts and declarations from the case. Benton V. State, 94 S. W. 688, 78 Ark. 284. § 288 INSTEUCTIONS TO JUEIES 560 Any instruction which makes it plain to the jury that evidence improperly admitted is not to be included in their deliberations is sufficient for that purpose. Ordinarily an instruction that the jury are not to consider such evidence will constitute a sufficient with- drawal of it.® Such an instruction should clearly specify the evi- dence which is to be disregarded;^" but where a ruling striking out certain evidence at the trial is plain, an instruction, directing the jury not to consider the evidence so stricken in its presence is not objectioniable for failure to identify the stricken matter.^*- § 289. Evidence which has been excluded, withdrawn, or already stricken out There cannot be error in withdrawing from the jury by an in- struction evidence which has already been stricken on motion ; ^^ but, as a general rule, where improper evidence has been ruled out, it is unnecessary to instruct the jury to disregard it,^* par- ticularly where the court has instructed the jury to disregard all evidence which has been ruled out." ' The court may refuse to instruct the jury that they must dis- regard evidence which has been withdrawn,^^ and where a particu- lar issue has been withdrawn from the jury by an instruction, it 8 Kalin V. Trlest-Eosenberg Cap 12 Central Indiana Ry. Co. v. Co., 73 P. 164, 139 Cal. 340; Shep- Clark, 112 N. E. 892, 63 Ind. App. 49. hard T. Goben, 142 Ind. 318, 39 N. E. is Cal. People v. Pasqueria, 159 506 ; "Wright v, GiUesple, 43 Mo. App. p. 173, 30 Cal. App. 625. i; j> « ,t t i. ji n «<_ _i n m- Yezner v. Roberts, Johnson & Use of "may' instead of « i,t. ^ ^o e, t-, 868, 209 Mass. 396, Ann. Cas. 1912B, q^^^^^ ^^%l- Gebhart, 73 S. E. 10 Bess V. Commonwealth, 77 S. W. ^* State v. Roupetz, 85 P. 778, 73 S49, 116 Ky. 927, 25 Ky. Law Rep. Kan. 663; State v. Tracy, 129 N. W. 1091 ; Hall v. State, 66 S. W. 783, 1"33, 21 N. D. 205. 43 lex. Cr. R. 479. lo Russell v. Bush, 71 So. 397, 196 iiConsidine v. City of Dubuque, Ala. 309; Brown v. Matthews, 79 Ga. 102 N. W. 102, 126 Iowa, 283. 1, 4 S. E. 13. B61 EXCLUSION OF EVIDENCE § 292 is not necessary to state further that the evidence on that subject is also withdrawn.^® Where, however, after testimony given by a witness has been ruled out, he repeats it, the jury should be ad- monished not to consider his statements,^' and where evidence er- roneously admitted is subsequently excluded, it is held in some jurisdictions that the court should direct the jury not to consider such evidence for any purpose.^* In other jurisdictions it is held that where improper evidence is admitted, and subsequently strick- en out as soon as its inadmissibility develops, the failure of the court to instruct the jury on the matter is not error, in the ab- sence of any request for such an instruction.^* While, where the court during the trial has once told the jury to disregard evidence improperly admitted, it may be error for it to refuse a request to repeat such direction in its general charge,*" it is not required of its own motion to so instruct a second time.*^ § 290. Evidence on issues not submitted to jiuy It is error to instruct the jury to consider evidence on an issue not submitted to them.** § 291. Effect of erroneous refusal to instruct against consider- ing certain evidence Error in refusing to tell the jury to disregard certain evidence is not cause for reversal, where it is apparent that the jury did not consider it.** § 292. Necessity of request for instruction to disregard evidence The failure of the trial court to instruct the jury to disregard in- competent or immaterial evidence, which has been admitted with- out objection,** or evidence which has been excluded or stricken out as inadmissible,*^ or evidence which, competent at the time of is Kirsher v. Kirsher, 94 N. W. 22 Hummer v. Chicago, R. I. & P. 846, 120 Iowa, 337. Ey- Co., 70 Iowa, 623, 25 N. W. 246. IT United States Health & Accident ^.f^^^'of trZ' fTZ^^^^^ ^^^^ * Ins. CO. V. ,ony (Ky.) 118 S. W^ 281 ^L^c^o-o^er'^^ivf L'f Vur Co. v. 18 Jones v._ Bynum, 66 So. 639, 189 American Credit Indemnity Co. (C. C. Ala. 677; Varnon v. Nabors, 66 So. ^ jjjgij) 240 F. 67, 153 C. C. A. 103; 593, 189 Ala. 464. gt^te v. Fortin, 76 A. 896, 106 Me. 19 Pierson v. Illinois Cent. E. Co., 382, 21 Ann. Oas. 454; Martin v. Cole- 112 N. W. 923, 149 Mich. 167 ; Mar- man (Com. PI.) 14 Misc. Eep. 505, 35 tin V. McCray, 171 Pa. 575, 33 A. 108. n. X. Supp. 1069; McRae v. Malloy, 20 Jones V. United States Mut. Ace. 93 N. C. 154; Martin v. Seaboard Air Ass'n of City of New Xork, 92 Iowa, Line Ry., 48 S. E. 616, 70 S. C. 8. 652 61 N W. 485. 26 Iowa. Croft v. Chicago, R. I. 21 Finli V. Ash, 99 Ga. 106, 24 S. E. & P. Ry. Co., 109 N. W. 723, 134 Iowa, 976. 411. INST.TO JxmiES— 36 § 292 INSTEUCTIONS TO JtlEIBS 562 its admission, becomes subsequently incompetent or immaterial,^* will as a general rule not constitute error, in the absence of a re- quest for such an instruction. Kan. Gulliford v. McQuillen, 89 P. 927, 75 Kan. 454. Mich. Barnett v. Farmers' Mut. Fire Ins. Co., 73 N. W. 372, 115 Mich. 247. N. Y. Gall V. Funkenstein, 21 N. E. 1119; Gall v. Gall, 114 N. Y. 109, 21 N. B. 106. Tex. Russell v. Nail, 79 Tex. 664, 15 S. W. 635. 2 8 McGee v. Kinsey, 1 Phila. (Pa.) 826 ; Aitkin's Heirs v. Young, 12 Pa. (2 Jones) 15, 51 Am. Dec. 608 ; Blum V. Jones (Tex. Civ. App.) 23 S. V- 844. 563 UMITING EFFECT OP EVIDENCE 293 CHAPTER XXII EXPLAINING PURPOSE FOR WHICH PARTICULAR EVIDENCE MAT BE CONSIDERED § 293. 294. 295. 296. 29-/. 298. 299. 300. General rule as to propriety and necessity of instructions. Specific applications of rule. Evidence only proper as bearing on the credibility of a witness. Evidence of other offenses. Evidence competent only for or against one of two or more coparties. Limitations of rule. Effect of limiting scope of evidence at time of its admission. Necessity of request lor limiting instructions. Stating purpose of evidence as invading province of jury, see ante, § 45. § 293. General rule as to propriety and necessity of instructions Where certain evidence is of such a character as may naturally be misapprehended by the jury and accorded weight on questions to which it has no proper application, a cautionary instruction as to the effect of such evidence is entirely proper/ and the genera] rule is, both in civiP and in criminal cases,* that in such a case 1 Hanley v. Fidelity & Casualty Co., 161 N. W. 114, 180 Iowa, 805 ; Same V. Travelers' Protective Ass'n, 161 N. W. 125. 2 Adkins v. Brett, 193 P. 251; Cleve- land, C, C. & St. L. Ry. Co. v. Gos- sett, 87 N. E. 723, 172 Ind. 525; In re Kah's Estate, 113 N. W. 563, 136 Iowa, 116 ; Tankersley v. Lincoln Traction Co., 163 N. W. 850, 101 Neb. 578. Instmctions propel* ivitliiii rule. In a case where incompetent testimo- ny was admitted without objection on cross-examination showing that plain- tiff had consulted two other attorneys who had declined to take his case, and where an attempt was made to show that plaintiff had learned from them why he had no cause of action, to the end that the credibility of his evi- dence might be affected, an instruc- tion that it was immaterial how many lawyers plaintiff visited before bring- ing the action, but if as a result of any visit he afterwards told a differ- ent story, and which was not true, that could be taken into considera- tion, but that the lawyers' views of the matter had nothing to do with the case, was properly given to eliminate the effect of the testimony as to the lawyers' opinions as to the merits' of the case, and to leave for the jury's consideration so much of the testi- mony as might tend to influence or color plaintiff's testimony. Pereira v. Star Sand Co., 94 P. 835, 51 Or. .^77. Where one person testifies that he put a certain amount of money in a box, and sent it to another, and the latter testifies that no money was received in the box, error cannot be predicated of a charge that the amount of money which was deposited in the box and sent should be determined from the testimony of the former witness alone. Murray v. Norwood, 77 Wis. 405, 46 N. W. 499. 3 CaJ. People v. Botkin, 98 P. 861, 9 Cal. App. 244. Ky. Ellis V. Commonwealth, 143 S. W. 425, 146 Ky. 715. La. State V, Honore, 46 So. 655, 121 La. 573. Mont. State v. Nielson, 100 P. 229, 38 Mont. 451. Okl. Gray v. State, 111 P. 825, 4 Okl. Cr. 292, 32 L. R. A. (N. S.) 142. 293 INSTEtTCTIONS TO JUKIB3 664 it is proper for the court to tell the jury for what purpose evi- dence which has been admitted may be considered, and that, where evidence which is competent for one purpose, but not for another, is admitted, the court may,* and should,** upon request,* limit its * Ga. Pratt Engineering & Ma- cliine Co. v. Trotti, 83 S. B. 107, 142 Ga. 401. 111. Ericlison v. Fred Miller Brew- ing Co., 189 lU. App. 394; Lowe v, Alton Baking & Catering Co., 158 111. App. 458. Ky. Brents v. Louisville & N. E. Co., 104 S. W. "961, 31 Ky. Law Rep, 1216. Mo. Andrew v. Linebaugh, 169 S. W. 135, 260 Mo. 623 ; Buckry-EUis v. Missouri Pac. Ky. Co., 138 S. W. 912, 158 Mo. 499; Home Lumber Co. v. Hartman, 45 Mo. App. 647. Neb. Raapke & Katz Co. v. Scbmoeller & Mueller Piano Co., 118 N. W. 652, 82 Neb. 716. Tex. Buchanan v. Houston & T. C. E. Co. (Civ. App.) 180 S. W. 625; Carl V. "Wolcott (Civ. App.) 156 S. "W. 334 ; Lehmann v. Medack (Civ. App.) 152 S. W. 438; Armstrong v. Burt, 138 S. W. 172; Southern Kansas Ey. Co. of Texas v. Morris (Civ. App.) 99 S. W. 433, judgment affirmed 102 S. W. 396, 100 Tex. 611, 123 Am. St. Eep. 834. U. S. (C. O. N. Y.) HoUenback v. Hand, 189 F. 929. i Conn. Barlow Bros. Co. v. Par- sons, 49 A. 205, 73 Conn. 696 ; Smith V. Phipps, 65 Conn. 302, 32 A. 367. III. Webster v. Enfleld, 10 111. (5 T» Gilman) 298. ' Iowa. Kircher v. Incorporated Town of Larchwood, 95 N. W. 184, 120 Iowa, 678. Ky. Ditto V. Slaughter, 92 S. W. 2, 28 Ky. Law Rep. 1164. Md. Haney i v. Marshall, 9 Md. 194. N. O. Croom v. Whitehead, 93 S. E. 854, 174 N. C. 305; Burton v. Wil- mington & W. R. Co., 84 N. 0. 192; Luther v. Skeen, 53 N. C. 356. Okl. St. Louis & S. F. R. Co. V. Murray, 150 P. 884, 50 Okl. 64. Or. Dorn v. Clarke-Woodward Drug Co., 133 P. 351, 65 Or. 516. Tex. Commonwealth Bonding & Casualty Co. v. Hendricks, 168 S. W. 1007 ; Puryear v. State, 28 Tex. App. 73, 11 S. W. 929; Kelley v. State, 18 Tex. App. 262; Branch v. State, 15 Tex. App. 96 ; Weir v. McQee, 25 Tex. Supp. 20. . ITtali. McKinney v. Carson, 99 P. 660, 35 Utah, 180. Illustrations at cases in whiob sucli limiting instructions re- quired. Where plaintiff sues for in- juries sustained from an attack by defendant's dog, evidence of the gen- eral reputation of the dog for being vicious is competent only on the issue of defendant's knowledge of the dog's disposition, and it is reversible error to refuse an instruction so limiting the testimony. Triolo v. Foster (Tex. Civ. App.) 57 S. W. 698. Where, in an action against an electric light com- pany to recover the amount of a judg- ment against plaintiff for causing the death of a boy by defective insulation, plaintiff introduced in evidence the record in the original suit to show « Ala. Birmingham Trust & Sav- ings Co. V. Ourrey, 57 So. 962,, 175 Ala. 373, Ann. Cas. 1914D, 81. Ga. Central of Georgia Ey. Co. v. Brown, 74 S. E. 839, 138 Ga. 107. Ind. Pittsburgh, 0., C. & St. L. Ey. Co. V. Parish, 62 N. E. 514, 28 Ihd. App. 189, 91 Am. St. Rep. 120. Mo. Ozark Orchard Co. v. Kansas City Southern Ry. Co., 158 S. W. 884, 173 Mo. App. 450; McMorrow v. Dow- ell, 90 S. W. 728, 116 Mo. App. 289. N. Y. Franklin v. Hoadley, 111 N. Y. S. 300, 126 App. Div. 687; Hard- ing V. Barney, 20 N. Y. Super. Ct. (7 Bosw.) 353. Tex. Missouri, K. & T. By. Co. of Texas v. Chert:y, 97 S. W. 712, 44 Tex. Civ. App. 232 ; Bell v. Missouri, K. & T. Ey. Co. of Texas, 82 S. W. 1073, 36 Tex. Civ. App. 569; Missouri, K. & T. Ey. Co. V. Collins, 39 S. W. 150, 15 Tex. Civ. App. 21. Va. Cohen v. Bellenot, 32 S. B. 455. W, Va. Welch v. King, 05 S. B. 844, 82 W. Va. 258. 565 LIMITING EFFECT OF EVIDENCE § 293 application to the purpose for which it is competent; care being taken to observe the legal restrictions against charging on the weight of the evidence.' the amount of damages it had sus- tained by reason of defendant's breach of contract, and which also showed that a verdict had been re- turned and judgment rendered against it and in favor of defendant who was a codefendant in such suit, it waa held that it was prejudicial er- ror to charge the jury that they might consider such record generally and give the facts therein shown such weight as they thought them entitled to. City of Owensboro, Ky., v. West- inghouse. Church, Kerr & Co. (C. O. A. Ky.) 165 F. 385, 91 C. 0. A. 335. Where defendant is accused of ob- taining money on a draft by false rep- resentations, and the certificate of a notary, stating that the draft had been protested, was admitted in evi- dence under a statute making it ad- missible in "evidence of the facts therein stated," it is error to refuse to charge that it cannot be considered for any other purpose than to show the fact of protest. May v. State, 15 Tex. App. 430. Where evidence ^s ad- mitted of an independent assault by a third party, unknown to defendant, on deceased, by reason of which de- ceased was being taken home, and was killed on his way by defendant, the purpose .of such evidence should be set out in an instruction limiting it in its operation to an explanation of the presence of the deceased at the place of the homicide. Bruner v. United States, 96 P. 597, 21 Okl. 410, 1 Okl. Or. 205. Where plaintiflC, suing on a policy, alleged the appointment by each party of a competent and dis- interested appraiser, a letter received in evidence demanding a new apprais- al and intimating that defendant's ap- praiser was incompetent and interest- ed should have been limited to show- ing the demand, though it was set out in plaintiff's declaration, and no motion to strike it out was made. Messier v. Williamsburg City Fire Ins. Co., 108 A. 832,_ 42 R. I. 460. In a prosecution for murder, in which witnesses to, defendant's good reputa- tion were cross-examined by questions whether they had heard of his having been concerned in previous specific crimes, it was error for the court to omit to charge that such questions and their answers must be limited in their effect to the determination of the witness' knowledge of defendant's reputation, and could not be consider- ed as showing that defendant had been guilty of such crimes, evidence of specific misconduct being inadmis- sible on the question of reputation. Commonwealth v. Oolandro, 80 A. 571, 231 Pa. 343. Where, in an action against an alleged firm, the existence of which is in issue, evidence of the declarations of two of the alleged partners showing the existence of the partnership was admitted on the issue of fraud on the part of the two on the theory that their discharge in bankruptcy did not exempt them from liability for the debt created, it was error to refuse an instruction limiting the consideration of the evi- Ccsce to such issue. Robinson v. ' First Nat. Bank, 82 S. W. 505, 98 Tex. 184, reversing judgment (Civ. App.) 79 S. W. 103. Where in personal. in- jury action photographs were admis- sible on issue of contributory negli- gence, but not to show defect in street, court must limit the evidence to purpose for which admissible. Bullock V. Yakima Valley Transp. Co., 184 P. 641, 108 Wash. 413. Where, in an action for injuries sus- tained by plaintiff, while driving with others, owing to the alleged defect in a highway, the driver was asked, on cross-examination, if one of the per- sons was a married woman, and, on objection, counsel stated he proposed to show the character of the party, and desired to test the knowledge of the witness on that subject, as bear- ing on his credibility, and testimony was admitted that the plaintiff, at the time of the injury, was one of a party 1 James v. State, 219 S. W. 202, 86 Tex. Cr. R. 598. § 294 INSTRUCTIONS TO JURIES 566 § 294. Specific applications of rule In an action by a husband or wife for the alienation of the af- fections of his or her spouse, an instruction may be necessary limit- ing the effect of declarations of the latter.* So, in an action for injuries sustained by a servant through coming in contact with an unguarded machine, the court should instruct, with respect to evidence that the machine in question was guarded after the ac- cident, that it is only competent to show the practicability of a guard,* and where evidence has been heard by the jury bearing on an alleged offer of compromise by a party, the latter is entitled to an instruction that such offer should not be regarded as a recogni- tion of liability.^* The. above rule applies to evidence which is admissible only in mitigation of damages," or which is pertinent only to the question of exemplary damages,*^ and cautionary ih- of men and women who had been drinking, and were on their way to a place where they expected to get more liquor and have a high time, it was held that, in order to guard against prejudicial misuse of the evidence, plaintiff had a right to have the jury instructed that it could only be con- sidered on the question of due care. Guertin v. Town of Hudson, 53 A. 736, 71 N. H. 505. Instructions beld sufficient witMn rule. An instruction that, if the property in question was not the property mentioned in the informa- tion and taken from prosecutor at the time and place alleged, such taking might be considered for the purpose of identification, but would not war- rant a conviction, properly limited the effect of the evidence. People v. Cas- tile, 86 P. 746, 3 Cal. App. 487. Where the court charged that, if B. inflicted the wounds which caused de- cedent's death, the jury should return a verdict of not guilty as to both de- fendants, and that in order to convict defendants, or either of them, the jury must be fully satisfied of the existence of each fact necessary to establish their guilt, one of which be- ing that one of the defendants, and not B., Inflicted the fatal wound, the court sufllciently charged the effect of evidence that deceased had not been cut by either of the defendants, but by B. State v. Bowman, 67 S. B. 1058, 152 N. C. 817. On trial for mur- der, where the evidence is circum- stantial, and the state introduces an indictment against accused, charging him with another crime, for the pur- pose of proving the motive, an In- struction that the fact that accused is charged with another crime is not proof of guilt of homicide sufficiently protects the right of accused. State V. McKowen, 53 So. 353, 126 La. 1075. By the judge carefully in- structing the jury that the statement of defendant K. on being arrested, that whatever part he had in the killing was under compulsion of de- fendant B., was to be considered against K. alone, and not in the slightest against B. the rights of B. were protected. Commonwealth v. Borasky, 101 N. E. 377, 214 Mass. 318. s Bourne v. Bourne (Cal. App.) 185 P. 489 ; Clark v. Clark, 118 N. E. 123, 187 Ind. 25; Miller v. Miller, 134 N. W. 1058, 154 Iowa, 344; Hardwick v. Hardwick, 106 N. W. 639, 130 Iowa, 230. Minea v. St. Eouis Cooperage Co., 162 S. W. 741, 179 Mo. App. 705. i» St. Louis Southwestern Ry. Co. V. Mitchell, 171 S. W. 895, 115 Ark. 339, Ann. Cas. 1916E, 317; Chicago City By. Co. v. Schuler, 111 111. App. 470. 11 Snyder v. Tribune Co., 143 N. W. 519, 161 Iowa, 671. 12 Williams v. Hicks Printing Co., 150 N. W. 183, 159 Wis.- 90. 567 LIMITING EFFECT OF EVIDENCE §295 structions may be required as to the purpose and effect of mortal- ity tables.^* § 295. Evidence only proper as bearing on the credibility of a witness Where evidence is only admissible for the purpose of impeach- ing a witness, or to corroborate him, the court may, and should, both in civiP* and in criminal cases," so instruct, and that it is 13 Scott V. Chicago, R. I. & P. Ry. Co., 141 N. W. 1065, 160 Iowa, 306; Stearns Coal & Lumber Co. v. Wil- liams, 186 S. W. 931, 171 Ky. 46. 1* Colo. Anson v. Evans, 19 Colo. 274, 35 P. 47. Ind. Johnson v. Samiiels, 114 N. E. 977, 186 Ind. "56. Ky. Watson v. Kentucky & Indi- ana Bridge & R. Co., 126 S. W. 146, 137 Ky. 619, opinion modified 129 S. W. 341, 137 Ky. 619; Georgetown Wa- ter, Gas, Electric & Power Co. v. Neale, 125 S. W. 293, 137 Ky. 197; Illinois Cent. R. Co. v. Johnson, 115 S. W. 798. N. J. Moloney v. Public Service Ry. Co., 106 A. 376, 92 N. J. Law, 539. N. C. Sprague v. Bond, 113 N. C. 551, 18 S. E. 701; Henson v. King, 47 N. C. 385. Tex. Texas & P. Ry. Co. v. Mis- souri Iron & Metal Co. (Civ. App.) 178 S. W. 597 ; Texas Loan & Trust Co. v. Angel, 86 S. W. 1056, 39 Tex. Civ. App. 166; Halsell v. Decatur Cotton Seed Oil Co. (Oiv. App.) 36 S. W. 848. IB Ga. Griggs v. State, 86 S. E. 726, 17 Ga. App. 301; Hayes v. State, 54 S. E. 809, 126 Ga. 95. m. Purdy V. People, 140 111. 46, 29 N. E. 700, following Ritter v. People, 130 111. 255, 22 N. E. 605. Kan. State v. Wellington, 43 Kan, 121, 23 Pac. 156. Mich. People v. Row, 98 N. W. 13, 135 Mich. 505. Mo. State v. Weeden, 133 Mo. 70, 34 S. W. 473. Tex. Rowan v. State, 124 S. W. 668, 57 Tex. Cr. R. 625, 136 Am. St. Rep. 1005 ; Dobbs v. State, 113 S. W. 921, 54 Tex. Cr. R. 579; Tabor v. State, 107 S. W. 1116, 52 Tex. Cr. R. 387; Joy v. State, 51 S. W. 933, 41 Tex. Or, R. 46; Coker v. State, 35 Tex. Cr. R. 57, 31 S. W. 655; Shackel- ford V. State (Cr. App.) 27 S. W. 8; Engers v. State (Cr. App.) 26 S. W. 987 ; Drake v. State, 25 Tex. App. 293, 7 S. W. 868. Vt. State V. Bolton, 102 A. 489, 92 Vt. 157. lUustrationB of sufficient ~in- strnctions. Where defendant testi- fies in his own behalf, and there is evidence tending to Impeach his char- acter for truth, an instruction that such evidence shall be regarded by the jury only in determining the cred- it,, if any, to be given defendant's tes- timony as a witness in his own be- half, suflBciently restricts the applica- tion of such evidence to defendant's character as a witness. State v. Eainsbarger, 79 Iowa, 745, 45 N. W. 302. Where, in a prosecution for pat- ricide, accused's witness testified that the feelings between accused and de- cedent had always been kind, and on cross-examination she testified that she had never heard accused make any threat against his father, and she was then asked whether she did not have a conversation with a third per- son, in which, in response to inquiries as to how the trouble arose, she re- plied that accused made a certain threat, and she answered, "No," it was held that an instruction that the impeaching testimony was not admit- ted as going to accused's guilt, but solely as aftecting the credibility of the witness, sufficiently guarded the admission. Connell v. State, 75 S. W. 512, 45 Tex. Cr. R. 142. Where, in cross-examining defentjant as to cred- ibility, it was disclosed that he had been indicted for murder, in jail twice, and paid fines for gambling, but had not been locked up, it was held that a charge that, if there was testimony tending to show that he had been legally charged with some §295 INSTRUCTIONS TO JURIES 568 not. substantive evidence upon the matters in issue." This rule applies where evidence of the contradictory statements of a wit- ness has been admitted/' or where evidence of the prior convic- tion of a defendant in a criminal case, or that he has been charged with other offenses than that for which he is being prosecuted, has been adduced for the purpose of discrediting his testimony,^* or where evidence of an involuntary confession of a defendant is admitted to impeach him.*® It is especially important in criminal cases, where the defend- ant has testified in his own behalf and impeaching testimony has been adduced against him, that the instructions of the court should be so framed as not to be likely to lead the jury to think that they other crime or crimes tlian the one on trial, then the jury could consider such evidence only to aid in determin- ing weight and credibility of his testi- mony, and for no other purpose what- ever, was sufficient. Leftrick v. State, 116 S. W. 817, 55 Tex. Cr. R. 204. 16 Indian Head Coal Co. v. Miller, 110 S. W. 813, 33 Ky. Law Rep. 650; Owensboro City Ry. Co. v. Allen, 108 S. W. 357, 32 Ky. Law Rep. 1353; Illinois Cent. R. Co. v. Houchins, 89 S. W. 530, 121 Ky. 526, 28 Ky. Law Rep. 499, 1 L. R. A. (N. S.) 375, 123 Am. St. Rep. 205; Straight Creek Coal Co. v. Haney's Adm'r, 87 S. W. 1114, 27 Ky. Law Rep. 1117; Mullins v. Commonwealth, 67 S. W. 824, 23 Ky. Law Rep. 2433. 17 111, Nelson v. Northwestern El- evated R. Co., 170 111. App. 119. Ky. South Covington & C. St. Ry. Co. V. Finan's Adm'x, 155 S. W. 742, 153 Ky. 340; Louisville Gas Co. v. Kentucky Heating Co., 134 S. W. 205, 142 Ky. 253 ; Georgia Home Ins. Co.> v. Kelley, 113 S. 'W. 882 ; Fueston v. Commonwealth, 91 Ky. 230, 15 S. W. 177. Tex. Kearse v. State, 151 S. W. 827, 68 Tex. Or. R. 633; Pratt v. State, 129 S. W. 364, 59 Tex. Cr. R. 635; Dickey v. State (Cr. App.) 27 S. W. 140 ; Thompson v. State, 29 Tex. App. 208, 15 S. W. 206; Foster v. State, 28 Tex. App. 45, 11 S. W. 832; Rogers v. State, 26 Tex. App. 404, 9 S. W. 762. 18 Iowa. State v. Johnson, 133 N, W. 115, 152 Iowa, 675. Tex. Hutton v. State (Cr. App.) 33 S. W. 969; Warren y. State, 33 Tex. Cr. R. 502, 26 S. W. 1082 ; Mahoney V. State, 33 Tex. Cr. R. 388, 26 S. W. 622. Wash. State v. Brownlow, 154 P. 1099, 89 Wash. 582. Wis. Fosdahl v. State, 89 Wis. 482, 62 N. W. 185. Instructions Tvith respect to ef- fect of evidence of otlier accusa- tions held sufficient. In a prosecu- tion for murder, a charge that "the testimony relating to former indict- ments against the defendant was ad- mitted for the sole purpose of affect- ing the defendant's credibility as a witness" did not constitute reversible error, on the ground that it failed to inform the jury that they should con- sider such testimony for no other pur- pose than as affecting defendant's credibility. Tardy v. State, 78 S. W. 1076, 46 Tex. Cr. R. 214. A charge that testimony has been introduced to the effect, if true, that defendant has been charged with other offenses than that for which he is indicted, and that the jury cannot consider this tes- timony as evidence of any allegation of the indictment, but if they believe this evidence to be true they may consider it only in determining the weight of the testimony of defendant as a wit- ness, or his credibility, "if you think it entitled to any consideration what- ever," is, if anything, too favorable to defendant, the quoted words not re- ferring to the testimony of defendant, but to the alleged impeaching testi- mony. Ellington v. State, 87 S. W. 153, 48 Tex. Cr. R. 160. 10 Phillips V. State, 35 Tex. Cr. R. 480, 34 S. W. 272. 569 LIMITING EFFECT OF EVIDENCE § 296 can consider such testimony, not only on the question of the credi- bility of the defendant as a witness, but on the substantive ques- tion of his guilt.*" An instruction which, with respect to a par- ticular transaction, properly limits the effect of impeaching testi- mony of certain witnesses, naming them, but which fails to so limit impeaching testimony of other witnesses in relation to the same transaction, is erroneous.*^ § 296. Evidence of other offenses It being a fundamental principle of the criminal law that one cannot be tried for an offense other than that named in the indict- ment against him, the general rule is that, where evidence is ad- mitted tending to show that the defendant has been guilty of other offenses than that for which he is being tried, the court will err if it fails to tell the jury for what purpose such evidence may be considered,** and that such evidence does not tend to prove the commission by the defendant of the crime charged.** Thus, aoMcGulre v. State, 57 So. 57, 2 Ala. App. 218. InstrnctioiLS held improper within rule. Where, on a prosecu- tion for burglary, in addition to evi- dence of other offenses, proof of de- fendant's conviction of a felony, five or more years before, v^as admitted on the question of his credibility, the giving of an instruction, "Other of- fenses committed by defendant are in evidence before you, and were admit- ted solely for the purpose of, or not, showing system on the part of defend- ant, and of, or not, affecting his credibility as a witness, and you will not consider the same for any other purpose," was erroneous as likely to be understood as justifying the jury in considering the former conviction as some proof of defendant's guilt of the burglary, Franklin v. State, 110 S. W. 64, 53 Tex.' Or. E. 388. 21 Bennett v. State (Tex. Cr. App.) 75 S. W. 314. 22 Maii8. Commonwealth v, Shep- ard, 1 Allen, 575. Mich. People V. Jacks, 76 Mich. 218, 42 N. W. 1134. Or. State V, Lewis, 19 Or. 478, 24 P. 914. Tex. Thornley v. State (Or. App.) 35 S. W. 981, reversing (Or. App.) 34 S. W. 264 ; Martin v. State, 36 Tex. Cr. R, 125, 35 S. W. 976; West v. State (Cr. App.) 33 S. W. 227; Wil- liamson V. State, 30 Tex. App. 330, 17 S. W. 722; Alexander v. State, 21 Tex. App. 406, 17 S. W. 139, 57 Am. Kep. 617; Hanley v. State, 28 Tex. App. 375, 13 S. W. 142; Barnes v. State, 28 Tex. App. 29, 11 S. W. 679 ; Gentry v. State, 25 Tex. App. 614, 8 S. W. 925 ; Reno v. State, 25 Tex. App. 102, 7 S. W. 532 ; Mayfield v. State, 23 Tex. App. 645, 5 S. W. 161 ; Davis V. State, 23 Tex. App. 210, 4 S. W. 590; Harwell v. State, 22 Tex. App. 251, 2 S. W. 606; McCall v. State, 14 Tex. App. 353. , 23 Kollock V. State, 88 Wis. 663, 60 N. W. 817. Instructions held snfiGlcient within rnle. While, in a prosecu- tion for a crime committed under an assumed name, the defense being that tne crime was committed by another, the state's evidence may take a wide range and show that he committed the offense charged as well as other offenses under the same name, to es- tablish his identity, the jury's consid- eration of such evidence should be limited to that purpose, and in a prosecution for embezzling money un- der an assumed name, an instruction that evidence that defendant had also received money from others under the same name, and had committed another offense under the same name. §297 INSTRUCTIONS TO JURIES 570 where, on an indictment for a conspiracy to defraud a municipality by the presentation and collection of fraudulent bills, the range of inquiry is narrowed by a bill of particulars, but evidence of other fraudulent bills is admitted, it is error for the court to re- fuse to instruct that the defendant is on trial only for the trans- action referred to in the bill of particulars.** § 297. Evidence corripetent only for or against one of two or more coparties Where evidence, which is ofifered jointly on behalf of several persons, but which is competent only as to some, is admitted, the court must limit its effect according to its competency,*^ and where, in a civil action** or in a criminal prosecution,*' evidence competent against one party, but not against a coparty or code- fendant, is admitted, the latter is entitled to have the jury instruct- ed that the eflfect of such evidence shall be limited to the party against whom it is competent. In a criminal prosecution it is not sufficient to charge in gen- could not be considered as evidence of guilt of the embezzlement charged, was equivalent to instructing that it could only be considered to establish the identity of accused. Morse v. Commonwealth, 111 S. W. 714, 129 Ky. 294, 33 Ky. Law Rep. 831, 894. Where evidence tending to show de- fendant guilty of other offenses is ad- mitted, an instruction to the jury that they are not to convict him because the evidence shows him a man of bad char- acter In having committed other of- fenses, and that they are only to con- sider the evidence in connection with the offense on trial, is sufficient. Peo- ple V. Rogers, 71 Cal. 565, 12 P. 679. 2* McDonald v. People, 126 111. 150, 18 N. E. 817, 9 Am. St. Rep. 547. 25 Hitt V. Carr, 109 N. E. 456, 62 Ind. App. 80. 26 Ind. Black v. Marsh, 67 N. E. 201, 31 Ind. App. 53. Ky, Illinois Cent. R. Co. v. Houch- Ins, 89 S. W. 530, 121 Ky. 526, 28 Ky. Law Rep. 499, 1 L. R, A. (N. S.) 375, 123 Am. St. Rpp. 205. Mo. Millspaugh V. Missouri Pac. Ry. Co., 119 S. W. 993, 138 Mo. App. 31. Neb. Cleland v. Anderson, 92 N. W. 306, 66 Neb. 252, 5 L. R. A. (N. S.) 136, rehearing denied 96 N. W. 212, 66 Neb. 252, 5 L. R. A. (N. S.) 136, and judgment reversed on rehearing 98 N. W. 1075, 66 Neb. 252, 5 L. R. A. (N. S.) 136, but affirmed on further re- hearing 105 N. W. 1092, 75 Neb. 273, 5 L. R. A. (N. S.) 136. Tex. Lefkovltz v. Sherwood (Civ. App.) 136 S. W. 850 ; Gulf, C. & S. F. Ry. Co. V. Holt, 70 S. W. 591, 30 Tex. Civ. App. 330. TTtah. Marks v. Culmer, 6 Utah, 419, 24 P. 528. 27 Ala. Jordan v. State, 81 Ala. 20, 1 So. 577; Williams v. State, 81 Ala. 1, 1 So. 179, 60 Am. Rep. 133; Lawson V. State, 20 Ala. 65, 56 Am. Dec. 182. Del. State v. Jones, Houst. Cr. Cas. 317. Iowa. State V. Miller, 81 Iowa, 72, 46 N. W. 751. Iia. State v. Donelon, 45 La. Ann. 744, 12 So. 922. Mich. People V. 'Arnold, 46 Mich'. 268, 9 N. W. 406; (1886) Same v. Maunausau, 60 Mich. 15, 26 N. W. 797. S. C. State v. Workman, 15 S. C. 540 ; Same v. Dodson, 16 S. O. 453. Tex. Short v. State (Cr. App.) 29 S. W. 1072 ; Perigo v. State, 25 Tex. App. 533, 8 S. W. 660; Collins v. State, 24 Tex. App. 141, 5 S. W. 848; Barron v. State, 23 Tex. App. 462, 5 S. W. 237. Va. Jones v. Commonwealth, 31 Grat. 836. 571 LIMITING EFFECT OF EVIDENCE §298 eral terms that the confessions of one defendant in the absence of the other are not evidence against the latter, but it is the duty of the court to explain to the jury the exclusive purpose for which such evidence is competent and to admonish them not to consider It for any other purpose.^* A party desiring that evidence, only admissible against a coparty, be limited in its application to such coparty should request an instruction to that effect.^* this rule, however, not applying where the question is whether the testi- mony supports the verdict'.*" § 298. Limitations of rule The above rule requiring instructions limiting the effect of evi- dence, is usually confined to those instances where evidence ad- mitted may be used for an illegitimate purpose.*^ Where there can be no mistake as to the purpose for which evidence is ad- mitted,** or where it appears from the whole record that evi- dence was admitted solely for a certain purpose,** an instruction limiting its effect is not required. Evidence proving directly the n^in issue involved in the trial,** or evidence admissible generally, 28 N, C. State v. Oxendine, 107 N. C. 783, 12 S. E. 573. 2 9 Hancock v. Hullett, 82 So. 522, 203 Ala. 272; Sweet v. Montpelier Sav. Bank & Trust Co., 84 P. 542, 73 Kan. 47 ; Crandell v. White, 164 Mass. 34, 41 N. E. 204; Boggess v, Boggess, 127 Mo. 305, 29 S. W. 1018; Dendinger V. Martin (Tex. Civ. App.) 221 S. W. 1095. Evidence admissible only against gaxnisbee. Where evidence admissi- ble only against the garnishee was admitted at the consolidated trial of the garnishment proceedings and the main action, it was the duty of de- fendants to have requested a special charge limiting the efEect of the evi- dence if they did not wish it consider- ed against them. Earhart v. Agnew (Tex. Civ. App.) 190 S. W. 1140. 3 Birkman v. Fahrenthold, 114 S. W. 428, 52 Tex. Civ. App. 335. 31 Texarkana Gas & Electric Co. v. Lanier, 126 S. W. 67, 59 Tex. Civ. App. 198; Bx)ma v. State, 116 S. W. 598, 55 Tex. Or. R. 344. 32 State V. Gaston, 96 Iowa, 503, 65 N. W. 415; Owenby v. Louisville & N. R. Co., 81 S. B. 997, 165 N. C. 641 ; Cain v. State, 153 S. W. 147, 68 Tex. Cr. R. 507 ; Dates v. State, 86 S. W. 769, 48 Tex. Cr. R. 131; Clark v. State (Tex. Cr. App.) 36 S. W. 273. 33 State V. Helm, 97 Iowa, 378, 66 N. W. 751 ; State v. Davis, 70 S. E. 417, 88 S. C. 204. Improbability tbat evidence will be nsed for an improper purpose. Where defendant and several others jointly indicted for theft conspired to throw a crowd of persons into con- fusion, and to take property from their persons, evidence as to the vari- ous articles stolen from different per- sons in the crowd during such confu- sion being admitted against defendant as contemporaneous acts tending to show intent, it was not error for the court to refuse to limit the effect of the testimony on the theory of ex- traneous crimes, where there was no probability that the jury would con- vict for an offense not charged in the indictment. Long v. State, 114 S. W. 632, 55 Tex. Cr. R. 55. 34 Hudson V. State, 28 Tex. App. 323, 13 S. W. 388. Extraneous matter. On a murder trial, where the state has proved the killing of deceased by two persons in an attempt to rob him-, evidence that a few minutes thereafter, and at the same place, three others were similar- § 299 INSTRUCTIONS TO JURIES " 572 although introduced for a particular purpose,*** is not within the scope of the above rule. § 299. Effect of limiting scope of evidence at time of its admis- sion. In criminal cases the rule is held to be that a statement made by the trial judge on the admission of evidence, not competent on the main issue, limiting its scope, does not relieve him from the necessity of afterwards instructing the jury as to the purpose for which it can be considered;*® but in civil cases such a limitation by the court at the time of the admission pf evidence will preclude urging as error the subsequent failure of the court to give an equivalent instruction,*'' unless the attention of the court is called to the matter by a request for instructions.** Even in civil cases, however, if the. court, after having, at the time of the admission of evidence, so limited its scope, has occasion in its charge to refer to such evidence, it should be careful to again explain the purpose for which it can be considered.^" § 300. Necessity of request for limiting instructions » The general rule, in civil proceedings, is that a party who fails to request such an instruction limiting the scope of certain evi- dence cannot complain ,of the failure to give it as a ground for reversal.*** Thus, where evidence is admitted in mitigation of ly assaulted for a like purpose by two no request being made, that sucb evi- persons, one of whom was positively dence is not admissible against the identified as one of the defendants, other, is not ground for reversal. and the other of whom resembled his Commonwealth v. Keating, 133 Mass. codefendant, Is not extraneous matter 5^2. within the rule which requires that , st Axk, McOarty v. Nelson, 195 S. the jury shall be Instructed to restrict W. 689, 129 Ark. 280. their consideration of extraneous mat- Conn. Barber v. Brace, 3 Conn.. 9, ter adduced in evidence to the specific 8 Am. Dec. 149. purpose for which it was admitted. Iowa. Purcell v. Tibbies, 69 N. W. Leeper v. State, 29 Tex. App. 63, 14 S. 1120, 101 Iowa, 24. W. 398. Mo. Atkinson v. American School 85 Bartley v. Comer (Tex. Civ. App.) of Osteopathy, 202 S. W. 452, 199 Mo. 89 S. W. 82. App. 251. 88 Thompson v. State, 29 Tex. App. N, H. Lee v. Lamprey, 43 N. H. 13. 208, 15 S. W. 206. Tex. D'Arrigo v. Texas Produce Rule in absence of request for Co., 44 S. W. 531, 18 Tex. Civ. App. instmction. In Massachusetts it 41. has been held that, where two are Wis. Hacker v. Heiney, 87 N. W. jointly tried for an assault, and evl- 249, 111 Wis. 313. dence of admissions by one of the fact sa Liles v. Fosburg Lumber Co., 54 that the other committed the assault, S. E. 795, 142 N. O. 39. and that he was present at the time, as Westfeldt v. Adams, 47 S. E. 816, is admitted, the court ruling at the 135 N. C. 591. time that such evidence is only ad- *o IT. S. (C. C. A. Ohio) Young v. missible against the person making Corrigan, 210 F. 442, 127 C. C. A. 174. the admission, its failure to instruct, Ala. Postal Telegraph-Cable Co. v. 573 LIMITING EFFECT OF EVIDENCE §300 damages only, it is plaintiff's duty to request an instruction lim- Mlnderhout, 71 So. 89, 14 Ala. App. 392, certiorari denied 71 So. 91, 195 Ala. 420 ; Big Sandy Iron & Steel Co. V. "Williams, 63 So. 1011, 184 Ala. 184; Sloss-Sheffield Steel & Iron Co. v. Mitchell, 61 So. 934, 938, 181 Ala. 576, 671; Birmingham Ry., Light' & Power Co. V. Long, 59 So. 382, 5 Ala. App. 510; United States Cast Iron Pipe & Foundry Co. v. Driver, 50 So. 118, 162 Ala. 580; First Nat. Bank v. Alexander, 50 So. 45, 161 Ala. 580; Long Distance Telephone & Telegraph Co. V. Schmidt, 47 So. 731, 157 Ala. 391; Scruggs v. Bibb, 33 Ala. 481. Ark. Lisko v. Uhren, 196 S. W. 816, 130 Ark. Ill; C. H. Smith Tie & Timber Co. v. Weatherford, 121 S. W. 943, 92 Ark. 6; Bodcaw Lumber Co. V. Ford, 102 S. W. 896, 82 Ark. 555. Cal. Liebrandt v. Sorg, 65 P. 1098, 133 Cal. 571. Colo. Melcher v. Beeler, 110 P. 181, 48 Colo. 233, 139 Am. St. Rep. 273. D. C. Washington Times Co. v. Downey, 26 App. D. C. 25§, 6 Ann. Cas. 765. Ga. Gordon v. Gilmer, 80 S. E. 1007, 141 Ga. 347 ; Stallins v. South- ern Ry. Co., 78 S. E. 421, 140 Ga. 55; Central of Georgia Ry. Co. v. Brown, 74 S. E. 839, 138 Ga. 107 ; A. G. Gar- butt .Lumber Co. v. Camp, 73 S. E, 841, 137 Ga. 592 ; McCommons v. Wil- liams, 62 S. E. 230, 131 Ga. 313. ni. Bird V. Bird, 75 N. E. 760, 218 111. 158; Foley v. Everett, 142 lU. App. 250. Ind. Chesapeake & O. By. Co. v. Perry (App.) 125 N. B. 414; Irvine v. Baxter Stove Co. (App.) 123 N. E. 185; International Harvester Co. of Ameri- ca V. Haueisen, 118 N. E. 320, 66 Ind. App. 355; Clark v. Clark, 118 N. B. 123, 187 Ind. 25 ; Cleveland, C, C. & St. L. By. Go. V. Clark, 97 N. E. 822, 51 Ind. App. 392 ; Coddington v. Ca- naday, 61 N. E. 567, 157 Ind. 243; Benjamin v. McElwaine-Richards Co., 37 N. E. 362, 10 Ind. App. 76. Iowa. Hall v. City of Shenandoah, 149 N. W. 831, 167 Iowa, 735 ; Green- lee V. Ealy, 124 N. W. 166, 145 Iowa, 394 ; Hanson v. Kline, 136 Iowa, 101, 113 N. W. 504 ; Kircher v. Incorporat- ed Town of Larchwood, 95 N. W. 184, 120 Iowa, 578; Puth v. Zimbleman, 68 N. W. 895, 99 Iowa, 641. Kan. Cooper v. Harvey, 94 P. 213, 77 Kan. 854. Ky. Chicago Veneer Co. v. Jones, 135 S. W. 430, 143 JEy. 21. Me. Reid v. Eastern S. S. Co., 90 A. 609, 112 Me. 34. ' Md. Pegg V. Warford, 7 Md. 582. Mass. Wagman v. Ziskind, 125 N. E. 633, 234 Mass. 509; Leavitt v. Maynes, 117 N. E. 343, 228 Mass. 350 ; Wachtel-Pickert Co. v. Leonard, 105 N. E. 354, 217 Mass. 417; Common- wealth V. Feiino, 134 Mass. 217 ; Penn. Mut. Life Ins. Co. v. Crane, 134 Mass. 56, 45 Am. Rep. 282; Commonwealth V. Keating, 133 Mass. 572 ; Potter v. Baldwin, 133 Mass. 427; Chapin v. Haley, 133 Mass. 127 ; Commonwealth V. Wunsch, 129 Mass. 477; Same v. Sargent, 129 Mass. 115. Minn. Nininger v. Knox, 8 Minn. 140 (Gil. 110). Mo. Robinson v. City of Spring- field, 191 S. W. 1094 ; Hitt v. Hitt, 131 S. W. 369, 150 Mo. App. 631 ; Kirby V. St. Louis & S. F. R. Co., 130 S. W. 69, 146 Mo. App. 304 ; Stoebler v. St. Louis Transit Co., 102 S. W. 651, 203 Mo. 702 ; Rosier v. Metropolitan St. Ry. Co., 101 S. W. 1111, 125 Mo. App. 159; E. O. Stanard Milling Co. v. White Line Cent. Transit Co., 122 Mo. 258, 26 S. W. 704 ; Garesche v. Presi- dent, Directors, and Faculty of St. Vincent's College, 76 Mo. 332. Neb. Fuller'ton v. FuUerton, 136 N. W. 847, 91 Neb. 649 ; Chicago, R. I. & P. Ry. Co. V. Holmes, 94 N. W. 1007, 68 Neb. 826. N. H. Lord V. Manchester St. Ry., 67 A. 639, 74 N. H. 295; Dow v. Mer- rill, 65 N. H. 107, 18 A. 317. N. J. Perry v. Levy, 94 A. 569, 87 N. J. Law, 670. N. Y. Devine v. Brooklyn Heights R. Co., 115 N. Y. S. 263, 131 App. Div. 142 ; Pritchard v. Edison Electric Il- luminating Co., 87 N. Y. S. 225, 92 App. Div. 178, judgment affirmed 72 N. E. 243, 179 N. Y. 364. N. C. Muse V. Ford Motor Co., 95 S. E. 900, 175 N. C. 466 ; Tise v. Town of Thomasville, 65 S. E. 1007, 65 S. §300 INSTRUCTIONS TO JURIES 574 iting its effect, if one is desired,*^ and where evidence is intro- duced that a master, after an accident which resulted in the death of a servant, took certain precautions to prevent the recurrence of such accident, and the master does not request a charge that such evidence is no proof of negligence on his part, it is not error to omit giving the instruction.*^ It has been held in a civil case that, if a partjj at the time of the reception of evidence does not ask that its effect be limited^ it will not be error to subsequently- refuse his request for an instruction qualifying the scope of such evidence.** E. 281 ; Stewart v. Raleigh & A. Air Line R. Co., 53 S. B. 877, 141 N. C. 253. Okl. Brownell v. Moorehead, 165 P. 408; Atchison, T. & S. F. Ry. Co. V. Baker, ISO P. 577, 37 Okl. 48. Or. State V. Flnnigan, 160 P. 370, 81 Or. 538. Pa. Frank v. American Bond & Mortg. Co., 70 Pa. Super. Ct. 478. Tex. Kampmann v. Cross (Civ. App.) 194 S. W. 437; Southwestern Portland Cement Co. v. Presbitero (Civ. App.) 190 S. W. 776 ; Vaughn v. Morris (Civ. App.) 180 S. W. 954 ; Car- ver V. Power State Bank (Civ. App.) 164 S. W. 892; Payne v. Snyder (Civ. App.) 160 S. W. 1153 ; Wichita Falls Compress Co. v. W. I. Moody & Co. (Civ. App.) 154 S. W. 1032; Posener V. Harvey (Civ, App.) 125 S. W. 356; Fordtran v. Stowers, 113 S. W. 631, 52 Tex. Civ. App. 226; Eastland v. Maney, 81 S. W. 574, 36 Tex. Civ. App. 147; San Antonio & A. P. By. Co. V. Morgan, 58 S. W. 544, 24 Tex. Civ. App. 58 ; Mutual Life Ins. Co. of New York v. Baker, 10 Tex. Civ. App. 515, 31 S. W. 1072; Roos v. Lew.yn, 5 Tex. Civ. App. 593, 24 S. W. 538; Shumard v. Johnson, 66 Tex. 70, 17 S. W. 398 ; Walker v. Brown, 66 Tex. 556, 1 S. W. 797. Utali. .Jensen v. Davis and Weber Counties Canal Co., 137 P. 635, 44 Utah, 10 ; McKinney v. Carson, 99 P. 660, 35 Utah, 180; State v. Greene, 94 P. 987, 33 Utah, 497. Wash. Blystone v. Walla Walla Valley Ry. Co., 165 P. 1049, 97 Wash. 46 ; Burger v. Taxicab Motor Co., 120 P. 519, 66 Wash. 676 ; Sproul v. City 0* Seattle, 49 P. 489, 17 Wash. 256. Wis. Viellesse v. City of Green Bay, 85 N. W. 665, 110 Wis. 160. Illustrations of omissions to in- struct held not error within rule. Evidence that, after an accident caus- ed by a washout of a bridge whose bents were laid on stone without be- ing bolted down, defendant, in re- building the bridge, bolted the bents down into the rock, was admissible to rebut the testimony of a witness for defendant that the bents of the wash- ed-out bridge had not been 'so fastened because the character of the rock would not permit it ; and an objection that it was likely to be considered by the jury as showing negligence in the construction of the old bridge was waived, unless made by a request for an instruction as to the purposes for which the evidence was admissible. St. Louis & S. F. Ry. Co. v. George, 85 Tex. 150, 19 S. W. 1036. Where, in an action against a telegraph com- pany for negligence and wantonness in the transmission of the telegram, evidence is received as to the wealth of the company, it is not reversible error, where a nonsuit Is granted as to the cause of action for wantonness, to fail to Instruct not to consider such evidence on the cause of action for negligence, in the absence of a request therefor. Smith v. Western Union Telegraph Co., 58 S. E. 6, 77 S. C. 878, 12 Ann. Cas. 654. *i Young V. Oorrigan (D. C. Ohio) 208 F. 431. 42 Lind V. Uniform Stave & Pack- age Co., 120 N. W. 839, 140 Wis. 183. 43 Missouri, K. & T. Ry. Co. of Tex- as V. Stark Grain Co., 120 S. W. 1146. Time of making request. 575 .LIMITING EFFECT OP EVIDENCE 300 The above rule is also generally applied in criminal cases,** as where evidence admitted is competent only for the purpose of affecting the credibility of a witness,*^ or where it is desired to Where, after reading a deposition, taken on notice to one of the two de- fendants, the court adjourned for the day, a request by the other defend- ant's counsel the first thing the next morning, to the effect that the depo- sition could not be considered as evi- dence against the latter defendant, was made in ample time. Millspaugh V. Missouri Pac. Ey. Co., 119 S. W. 993, 138 Mo. App. 31. In New York, however, it has been hpld that the fact that when evi- dence of a statement by defendant's superintendent, admissible for a par- ticular purpose only, was received, defendant did not insist that the 1a- ry be then informed as to the limited purpose for which it could properly be considered, did not result in a waiver of defendant's right to have the jury subsequently charged to that effect. Walsh v. Carter-Orume Co., 110 N. y. S. 523, 126 App. Div. 229. iiV. S. (C. C. A. Mo.) Mbffatt v. United States, 282 F. 522, 146 C. C. A. 480; (G. C. A. Or.) Hallowell v. United States, 253 F. 865, 165 C. O. A. 345, certiorari denied 249 U. S. 615, 39 S. Ct. 390, 63 L. Ed. 803, judgment affirmed on rehearing 258 F. 237. 169 C. C. A. 303. Ala. Houston v. State, 82 So. 503, 203 Ala. 261. Ark. Oalies v. State, 205 S. W. 305, 135 Ark. 221 ; Williams v. State, 198 S. W. 699, 131 Ark. 264. Cal. People V. Escalera, 171 P. 975, 36 Cal. App. 212 ; People v. Mon- roe, 70 P. 1072, 138 Cal. 97. na. Andrew v. State, 56 So. 681, 62 Pla. 10. Ga. Cantrell v. State, 80 S. E. 649, 141 Ga. 98. Iowa. State v. Pelser, 163 N. W. 600, 182 Iowa, 1 ; State v. Glaze, 159 N. W. 260, 177 Iowa, 457. Mo. State v. Douglas, 167 S. W. 552, 258 Mo. 281 ; State v. Rasco, 144 S. W. 449, 239 Mo. 535. N. J. State V. Brand, 72 A. 131, 77 N. J. Law, 486, affirming judgment 69 A. 1092, 76 N. J. Law, 267. N.. Y. People v. Weinseimer, 83 N. E. 1129, 190 IN. Y. 537, affirming judg- ment ICS N. Y. S. 579, 117 App. Div. 603. N. C. State v. Stancill, 100 S. E. 241, 178 N. C. 683; State v. English, 80 S. E. 72, 164 N. G. 497. Okl. Gray v. State, 111 P. 825, 4 Okl. Cr. 292, 32 L. E. A. (N. S.) 142. Tex. Hensley v. State, 211 S. W. 590, 85 Tex. Cr. R. 260 ; Thompson v. State, 178 S. W. 1192, 77 Tex. Cr. R. 417; Johns v. State, 174 S. W. 610, 76 Tex. Cr. R. 303; Montgomery v. State, 151 S. W. 813, 68 Tex. Cr. R. 78; Harris v. State, 150 S. W. 796, 68 Tex. Cr. R. 208. Wash. State v. Douette, 71 P. 556, 31 Wash. 6. W. Va. State v. Baker, 99 S. E. 252, 84 W. Va. 151. Excuses for failure to make re- quest. Where certain evidence for the state was admitted against the objection of defendant, and the court stated that it would properly limit the evidence by its instructions, and failed to give such an instruction, but no suggestion was made to the court in respect to such evidence, except as st^ed, defendant could not assign er- ror for the court's failure to limit the effect of the evidence. State v. Sim- as, 62 P. 242, 25 Nev. 432. 4 5 XT. S. (C. C. A. Alaska) Ball v. United States, 147 P. 32, 78 O. C. A. 126. Ala. Morris v. State, 41 So. 274, 146 Ala. 66. Cal. People v. Peck, 185 P. 881; People V. Haydon, 123 P. 1102, 18 Cal. App. 543, rehearing denied 123 P. 1114, 18 Cal. App. 543. Ga. Fit7patrick v. State, 99 S. B. 128, 149 Ga. 75. Ky. Bennett v. Commonwealth, 194 S. W. 797, 175 Ky. 540; Day v. Commonwealth, 191 S. W. 105, 173 Ky. 269 ; Haywood v. Commonwealth, 170 S. W. 624, 161 Ky. 338. Mo. State v. Gatlin, 70 S. W. 885, 170 Mo. 354. Tex. Watts V. State, 171 S. W. 202, 75 Tex. Cr. R. 330. 300 INSTEUCTIONS TO JURIES 576 limit, as against one defendant, the effect of evidence admissible as against his codefendant,** or where the defendant wishes the effect of evidence of other offenses to be limited,*' although in some criminal cases the duty of the court in this regard seems to be more strictly enforced than in civil cases,** and in criminal cases the rule has been laid down that whenever extraneous matter ad- mitted in evidence for a specific purpose incidental to the proof of the main issue is not admissible directly to prove such issue, and may tend to exercise a strong, undue, or improper influence upon the jury as to the main issue, injurious and prejudicial to the rights of the defendant, it is the duty of the court, without any request, to so limit and restrict such evidence as that such unwar- ranted results cannot ensue.** *« tr. S. (0. C. A. Ohio) Foster v. United States, 178 F. 165, 101 C. C. A. 485; (O. C. A. Tex.) Bryant v. United States, 257 F. 378, 168 C. C. A. 418. 111. People V. Darr, 104 N. E. 389, 262 111. 202, affirming judgment 179 111. App. 130. Ind. Thompson v. State, 125 N. B. 641. Minn. State v. Newman, 149 N. W. 945, 127 Minn. 445. N. J. State V. Unger, 107 A. 270, 93 N. J. Law, 50; State v. Stanford. 101 A. 53, 90 N. J. Law, 724. N. C. State v. Fain, 97 S. E. 716, 177 N. C. 120. ■Utah. State v. Gillies, 123 P.'>93, 40 Utah, 541, 43 L,. R. A. (N. S.) 776. See, also, ante, § 297, note 29. .47 People y. Oiulla, 187 P. 46 ; People V. Germino, 175 P. 489, 38 Cal. App. 100; People v. Moran, 144 P. 152, 25 Oal. App. 472; Peo- ple V. Eransfield, 124 N. E. 365, 289 111. 72; Glover v. People, 68 N. E. 464, 204 lU. 170. 48 State V. Lavin, 46 N. W. 553, 80 Iowa, 555 ; State v. Collins, 28 S. B. 520, 121 N. C. 667 ; Paris v. State, 35 Tex. Or. R. 82, 31 S. W. 855 ; Oliver V. Same, 33 Tex. Or. Ri. 541, 28 S. W. 202; Sexton v. State, 33 Tex. Or. B. 416, 26 S. W. 833. Where defendant has objected to the admission of certain evi- dence and taken the position that It is wholly incompetent for any pur- pose, he cannot be expected to request the court to charge the jury as to the purpose for which the evidence should be regarded or considered. Porter v. State, 91 N. E. 840, 173 Ind. 694. Rnle in misdemeanor cases. In Texas, in a prosecution for a misde- meanor, the court, unless requested, need not instruct the jury to consider evidence, only admissible to corrob- orate the testimony of the prosecu- trix, for that purpose alone. Duke v. State, 35 Tex. Cr. R. 283, 33 S. W. 349. *o Wilson v. State, 39 S. W. 373, 37 Tex. Cr. R. 373 ; Maines v. Statev 23 Tex. App. 576, 5 S. W. 123. 577 SUBMISSION TO JUKT FOK SPECIAL FINDINGS §801 CHAPTER XXIII NECESSITT, PROPKIBTY, AND SUFFICIENCY OF INSTRUCTIONS WHERE CASE IS SUBMITTED TO JURY FOR SPECIAL FINDINGS i 301. In general. 302. Effect of special findings. 303. Consistency between general verdict and special findings or between special findings. § 301. In general Where the case is submitted to the jury for a special verdict, they should only be instructed upon the questions which they are to answer,* and general instructions on any subject involved should not be given,* save so far as is necessary to assist in an- swering each interrogatory propounded,* as they are apt to have a tendency to confuse the jury,* and it is proper to refuse instruc- tions general in their application to all the issues of the case, or 1 Mass. Tarbell v. Forbes, 58 N. E. 873, 177 Mass. 238. N. C. Earnhardt v. Clelnent, 49 S. E. 49, 137 N. C. 91. N. D. Morrison v. I/ee, 102 N. W. 223. 13 N. D. 591. Wis. McHatton v. McDonnell's Estate, 165 N. W. 468, 166 Wis. 323 ; Meyer v. Home Ins. Co., 106 N. W. 1087. 127 Wis. 293; Van De Bogart V. Marinette & Menominee Paper Co., 106 N. W. 805, 127 Wis. 104; Lyon V. City of Grand Rapids, 99 N. W. 311, 121 Wis. 609 ; Schrunk v. Town of St. Joseph, 97 N. W. 946, 120 Wis. 223; Gutzman v. Clancy, 90 N. W. 1081, 114 Wis. 589, 58 L. It. A. 744; Patnode v. Westenhaver, 90 N. W. 467, 114 Wis. 460; CuUen v. Hanisch, 89 N. W. 900, 114 Wis. 24; Gerrard V. La Crosse City Ry. Co., 89 N. W. 125, 113 Wis. 258, 57 L. R. A. 465; Byington v. City of Merrill, 88 N. W. 26, 112 Wis. 211; Missinskie v. Mc- Murdo. 83 N: W. 758, 107 Wis. 578; New Home Sewing-Mach. Co. v. Sim- on. 80 N. W. 71, 104 Wis. 120. 2 Ind. Boyce v. Schroeder, 51 N. E. 376, 21 Ind. App. 28. Tex. International & G. N. Ry. Co. V. Reek, 179 S. W. 699. Wis. Howard v. Beldenville Lum- ber Co!, 108 N. W. 48, 129 Wis. 98; INST.TO Juries— .S7 Mauch V. City of Hartford, 87 N. W. 816, 112 Wis. 40; Rhyner v. City of Menasha, 83 N. W. 303, 107 Wis. 201 ; Goesel v. Davis, 76 N. W. 768, 100 Wis. 678. Definitions. The court cannot, by general instructions, define the mean- ing of terms used in questions sub- mitted to the jury for a special ver- dict, as such a practice would result in a verdict special in part and gen- eral in part. Louisville & N. R. Co. V. Cambron, 8 Ky. Law Rep. (ab- stract) 615. Harmless error. Where, in an ac- tion for negligence, the case was sub- mitted on special interrogatories, and for a special verdict only, the fact that the court instructed generally on the law as though a general verdict was to be returned, while such ac- tion was improper, is not error, where the instructions did not indicate how the jury should find upon any given question of fact. Reed v. City of Madison, 85 Wis. 667, 56 N. W. 182. 3 Lathrop v. Fargo-Moorhead St. Ry. Co., 136 N. W. 88, 23 N. D. 246 ; Dallas Hotel Co. v. Fox (Tex. Civ. App.) 196 S. W. 647. * Southwestern Telegraph & Tele- phone Co. V. Andrews (Tex. Civ. App.) 169 S. W. 218. §301 INSTRUCTIONS TO JURIES 578 suitable only to a case submitted for a general verdict.® It is only- proper, where a special verdict is requested, to give such instruc- tions as are necessary to inform the jury as to the issues, the rules for weighing evidence, who has the burden of proof, and what- ever else may be necessary to enable the jury clearly to understand their duties.® As is indicated by the foregoing discussion, a demand for a spe- cial verdict does not deprive the court of the right, or relieve it of the duty, to instruct the jury as to the nature of the action and the issues, as to the form of the special verdict, and the general duties of the jury.' Instructions which will assist the jury in returning pertinent and intelligent answers to special interrogatories pro- pounded may- be given,* and the court should explain to the jury distinctly what facts are material to be found within the issues,* and so instruct them as to enable the jury to answer each ques- tion intelligently and to find and settle the facts.^" 5 Kan. Warden v. Reser, 38 Kan. 86, 16 P. 60. Tex. Southwestern Portland Ce- ment Co. V. Challen (Civ. App.) 200 S. W. 213 : Moore v. Pierson (Civ. App.) 93 S. W. 1007. Wis. Collins V. Mineral Point & N. Ky. Co., 117 N. W. 1014, 136 Wis. 421 ; Kohler v. West Side R. Co., 74 N. W. 568, 99 Wis. 33 ; Klatt v. N. C. Foster lyumber Co., 73 N. W. 563, 97 Wis. 641. Discretion of court. In Georgia It is held that where, in an equity case, a special verdict is demanded by the parties, and questions covering the issues of fact are submitted to the jury, the judge may, in his dis- cretion, limit his instructions to such matters as are involved in the ques- tions submitted, and omit general in- structions covering the law of the whole case. Ijivingston v. Taylor, 63 S. E. 694, 132 Ga. 1. « Udell V. Citizens' St. R. Co., 52 N. E. 799, 152 Ind. 507, 71 Am. St. Rep. 336; Roller v. King, 49 N. E. 948, 150 Ind. 159; Louisville, N. A. & C. Ry. Co. V. Prawley, 9 N. E. 594, 110 Ind. 18. Damages. In Texas, under a stat- ute, where a case is submitted to the jury on special issues, it is not necessary fpr the court to charge on the measure of damages. St. Louis, S. F. & T. Ry. Co. v. Wall (Civ. App.) 165 S. W. 527. 7 u. S. (C. C. A. Neb.) Ward v. Cochran, 71 Fed. 127, 18 C. C. A. 1. Ind. Sprinkle v. Taylor, 27 N. B. 122, 1 Ind. App. 74; Louisville, N. A. & C. Ry. Co. V. Hart, 119 Ind. 273, 21 N. E. 753, 4 L. R. A. 549; Johnson V. Culver, 116 Ind. 278, 19 N. E. 129; Woollen v. Wire, 110 Ind. 251, 11 N. E. 236 ; Toler v. Keiher, 81 Ind. 383. Tex. Cole V. Crawford, 69 Tex. 124, 5 S. W. 646. s Kalteyer v. Mitchell (Civ. App.) 110 S. W. 462. 9 Louisville, N. A. & C. Ry. Co. v. Buck, 19 N. E. 453, 116 Ind. 566, 2 L. R. A. 520, 9 Am. St. Rep. 883. !» Wawrzyniakowski v. Hoffman & Billings Mfg. Co., 131 N. W. 429, 146 Wis. 153 ; Baxter v. Chicago & N. W. Ry. Co., SO N. W. 644, 104 Wis. 307. Instructions held proper with- in rule. In an action to recover for services in furnishing _ plans for a building, it being in issue whether plaintiff's compensation was contin- gent upon the building costing not over a certain sum, and defendant having referred the special question to the jury, "Was the agreement con- ditional on the cost of the building?" an instruction submitted, In connec- tion therewith by the trial court, that 579 SUBMISSION TO JURY FOR SPECIAL FINDINGS 302 If any instructions are given as to where the burden of proof rests, the jury should be so informed that they will understand the subject as to each material fact in issue," and the giving to the jury of general rul.es of law appropriate to the particular inter- rogatories in connection with which such rules are given is prop- er.i*^ An instruction requested to be given in connection with special findings should expressly designate the particular inter- rogatory to which it is directed,^* and all parts of the charge bear- ing on a special interrogatory, whether given by the court of its own motion or on request should be given together, in connection with a submission of such question." § 302. Effect of special findings While, in one jurisdiction there is no restraint Upon the trial court giving an instruction as to the effect of special findings made by them upon the ultimate rights and liabilities of the parties,*** in the majority of jurisdictions the rule is that instructions ex- plaining to the jury the effect of an answer to a special interroga- tory or of special findings as a whole upon such ultimate rights or liabilities should not be given,** and such an instruction is prop- If before lie began to build defendant knew, or sbcrald have known, that the building would cost more, and then used plaintiffs plans, an answer of "no" to the question would be justi- fied, was not erroneous, as telling the jury what answer to make thereto; the instruction being proper in order to secure an answer decisive of the Issue. Bennett v. Greenwood, 114 N. W. 1019, 151 Mich. 274. 11 Siebrecht v. Hogan, 75 N. W. 71, 99 Wis. 437. 12 Sanger v. First Nat. Bank of Amarillo (Tex. Civ. App.) 170 S. W. 1087; Banderob v. Wisconsin Cent. By. Co., 113 N. W. 738, 133 Wis. 249. 13 Banderob v. Wisconsin Cent. Ry. Co., 113 N. W..738, 133 Wis. 249. 1* Banderob v. Wisconsin Cent. By. Co., 113 N. W. 738, 133 Wis. 249. 15 Smith V. Rhode Island Co., 98 A. 1, 39 R. I. 146. 16 Micli. Taylor v. Davarn, 157 N. W. 572, 191 Mich. 243. N. D. Morrison v. Lee, 102 N. W. 223, 13 N. D. 591. Tex. lyaybourn v. Bray & Shifflet (Civ. App.) 214 S. W. 630 ; Hovey v. See (Civ. App.) 191 S. W. 606. Wis, Christl v. Hauert, 160 N. W. 1061, 164 Wis. 624 ; Banderob v. Wis- consin Cent. Ry. Co., 113 N. W. 738, 133 Wis. 249; 'Miusbach v. Wisconsin Chair Co., 84 OST. W. 36, 108 Wis. 57 ; Baxter v. Chicago & N. W. By. Co., 80 N. W. 644, 104 Wis. 307; Coats v. Town of Stanton, 90 Wis. 130, 62 N. W. 619. See Lyttle v. Goldberg, 111 N. W. 718, 131 Wis. 613. In Texas the decisions are con- flicting ; it being held in one case that to assume that to inform the ju- ry that under a certain state of facts the plaintiff can recover, and that under another state of facts he can- not, will influence them to find the facts requiring a judgment in favor of the plaintiff, is an impeachment of the system of trial by jury as being fundamentally unreliable. J. M. Guf- fey Petroleum Co. v. Dinwiddle (Tex. Civ. App.) 182 S. W. 444 ; Texarkana & Ft. S. Ry. Co. V. Casey (Tex. Civ. App.) 172 S. W. 729. Instructions beld improper within rule. Where the first special interrogatory embodied the claim of the defense that plaintiff was paid $50 in full for a release of dower. 302 INSTRUCTIONS TO JURIES 580 erly refused.^'' Such rule does not preclude the court from reliev- ing the jury of the labor of determining a subsidiary question sub- mitted after reaching a conclusion on a primary question neces- sarily terminating the controversy, as the . jury must see,^* and a charge is not erroneous merely because an intelligent juror may be able to infer therefrom the effect on the final result of his an- swers to the special interrogatories,^* and an instruction which in- forms the jury that an affirmative answer to such an interrogatory will be in favor of a party, but which does not go so far as to tell the jury the effect of such answer upon the ultimate right of ei- and the second embodied the claim of the plaintiff that she was to have the balance of all proceeds ,of real estate and personal property after the payment of debts and broker's commission as a consideration for the release, but plaintiff's testimony did not fully support the contention that she was to have the proceeds of per- sonal property. It is error for the court to instruct that, if the jury an- swered the first question, "No," they must, in his opinion, answer the sec- ond qviestion, "Tes." Lyttle v. Gold- berg, 111 N. W. 718, 131 Wip._613._ Instructions lield not objection- able within mle. An instruction in an action by an employ^ for injuries caused by being caughf by an un- guarded shafting, that the law re- quires the employer to securely guard shaftings so located as to be danger- ous to employes, and, if the shafting was so located as to be dangerous to the employe at the time of the injury, the jury should find that the place furnished by the- employer to the em- ploy6 in which to do his work was not reasonably safe, was not objection- able, as stating to the jury the ef- fect of their answer. Walker v. Simmons Mfg. Co., Ill N. W. 694, 131 Wis. 542. On an issue as to plaintiff's contributory negligence, an instruction that the court must be informed by a special verdict wheth- er plaintiff contributed to the acci- dent by a slight want of ordinary care, which would be negligence on her part, was not objectionable, as inforiping the jury of the effect of their answer on plaintiff's right of recovery. Brunette v. Town of Gagen, 82 N. W. 564, 106 Wis. 618. Where, in an action for injuries to a minor servant, the court instructed, in re- spect to a question to the jury as to whether plaintiff exercised ordinary care, that if plaintiff knew that there was a revolving knife, and that his hand was liable to come , in contact therewith in cleaning out a certain hopper, he must be held to have as- sumed the risk, although he was at- tempting to do the work by the ex- press direction of defendant, and that the true test as to whether a minor has assumed the ordinary risks of his employment, or is guilty of contributory negligence, is not wheth- er he comprehended the danger, but whether he ought to have known of it, and that defendant had a right to assume that plaintiff was a person of ordinary common sense for one of his years, and that he would exercise such care to avoid dangers which were visible, or which he knew or ought to have known existed, as might be reasonably expected of one of his years and capacity, it was held that the instructiomg were not violative of the rule that the court should not advise the jury as to the effect of their answers. Horn v. La Crosse Box Co., Ill N. W. 522, 131 Wis. 384. 1' Crawford v. Texas Improvement Co. (Tex. Civ. App.) 196 S. W. 195; Moore v. Coleman (Tex. Civ. App.) 195 S. W. 212. 18 Sicard v. Albenberg Co., 118 N. W. 179, 136 Wis. 622. 18 Bahderob v. Wisconsin Cent. Ry. Co., 113 N. W. 788, 133 Wis. 249. , 581 SUBMISSION TO JURY FOB SPECMIi FINDINGS § 303 ther party to recover does not call for a reversal.*' As a corollary of the above rule the jury may be properly instructed that they have nothing to do with the legal consequences of the facts found by them.*^ § 303. Consistency between general verdict and special findings or between special findings It is error to charge that the special findings of the jury must conform to their general verdict;** the object of a special verdict being to get the unbiased decision of the jury on some material question of fact, without any reference in their minds as to how the finding will affect their general verdict,** and to ascertain whether the jury have, in making up their general verdict, prop- erly applied the law, as given by the court, to the facts in the case.** In one jurisdiction, however, it is held that, while it is not good practice, it is not error to tell the jury that it is important that their special findings agree with their general verdict,*^ and in an- other jurisdiction instructions cautioning the jury to be careful that their general verdict harmonize with their special findings, or tending to impress them with the necessity of consistency between such findings and the general verdict, are not erroneous.*® The jury may be admonished to make their answers to the sev- eral questions submitted for a special verdict consistent with each other.*' 20 Wankowski v. Crivitz Pulp & Ry. v. jSlvey, 27 Ohio Cir. Ot. R. 248. Paper Co., 118 N. W. 643, 137 Wis. 2 s Ryan v. Rockford Ins. Co., 77 123. Wis. 611, 46 N. W. 885. 21 Neanow v. Uttecli, 46 Wis. 581, 2* Beecher v. Galvin, 71 Mich. 391, 1 N. W. 221. 39 N. W. 469. 22 Kan. Coffeyrille Vitrified Briclc 2b Germaine v. City of Muskegon, Co. V. Zimmerman, 60 P. 1064, 61 105 Mich. 213, 63 N. W. 78. Kan. 750; Kilpatrick-Koch Dry 2 e Capital City Bank v. Wakefield, Goods Co. V. Kahn, 53 Kan. 274, 36 83 lo^a, 46, 48 N. W. 1059; Des Pac. 327. Moines & D. Land & Tree Co. v. Polk Mich. Mechanics' Bank v. Barnes, County Homestead & Trust Co., 82 86 Mich. 632, 49 N. W. 475; People Iowa, 663, 45 N. W. 773. V. Murray, 17 N. W. 843, 52 Mich. 27Hoppe v. Chicfigo, M. & St. P. 288 ; Cole v. Boyd, 47 Mich. 98, 10 N. Ry. Co., 61 Wis. 357, 21 N. W. 227. W. 124. Contra, St. Louis & S. P. R. Co. v. Ohio. Cleveland, C, 0. & St. L. Burrows, 61 P. 439, 62 Kan. 89. § 304 INSTRUCTIONS TO JURIES- 582 CHAPTER XXIV INSTRUCTIONS IN EQUITY CAUSES § 304. Necessity of instructions. 305. Propriety of instructions. § 304. Necessity of instructions When, in an equitable proceeding, a Jury is called simply for advisory purposes, the court need give only such instructions as it sees fit, and may properly refuse all requests for instructions.^ But, where an equity case is submitted to a jury and tried as an action at law, it will be treated as if it were an action at law, and the parties may request special instructions,* and, in jurisdic- tions, where a jury is a necessary part of the chancery system, the court should be careful, on the submission of an issue of fact in an equitable action to a jury, to instruct them as to the nature of the issue and the application of the evidence produced before them,* and it»is not only the province, but the duty, of the court, when requested so to do, to instruct the jury what portions of the answer of defendant are responsive to the allegations of the bill.* Such an instruction is not upon a question of fact, but relates to the admissibility of evidence.^ § 305. Propriety of instructions Where questions of fact are submitted to the jury in an equity case, the instructions should not be general, as in a suit at law, but should only relate to the determination of the questions of fact submitted.® Instructions merely pertinent to other questions in the case should not be given.' 1 Cal. Dominguez v. Dominguez, 7 the answer of the defendant re- Cal. 424. sponsive to the hill is evidence, Colo. Royce v. Latshaw, 62 P. 627, and there is, in fact, matter in tlie 15 Colo. App. 420 ; I>anielson v. Gude, answer not responsive whicli Is mate- 17 P. 283, 11 Colo. 87. rial, the court should further charge 111. Worthing -v. Hall, 153 111. App. that such nonresponsive matter is on- 587. ly pleading, and not evidence. Neal Mo. Baker v.- Payne (Mo. App.) v. Patten, 40 Ga. 363. 198 S. W. 75; Blood v. Sovereign s Adkins v. Hutchings, 79 Ga. 260, Camp Woodmen of the World, 120 S. 4 S. E. 887 ; Shiels v. Stark, 14 Ga. W. 700, 140 Mo. App. 526. 429. 2 Van Vleet v. Olin, 4 Nev. 95, 97 « Farmers' Bank v. Butterfield, 100 Am. Dec. 513. Ind. 229 ; Stickel v. Bender, 15 P. 3 Ely V. Early, 94 N. O. 1. 580, 37 Kan. 457. *Webb V. Robinson, 14 Ga. 216; ^ Carlisle v. Foster, 10 Ohio St. 198; Beall V: Beall, 10 Ga. 342. Perry v. Clift (Tenn. Ch. App.) 54 S. Where the court charges that W. 121. 583 PARTICU1.AE MATTERS IN CRIMINAL CASES § 306 CHAPTER XXV INSTRUCTIONS ON PARTICULAR MATTERS IN CRIMINAL CASES A. In GenebaIi § 306. Proof ot corpus delicti. 307. Intent of defendant. 308. Evidence of intent. 309. Motive or lack of motive. 310. Place of ofCense. 311. Time of offense. 312. Instructions necessary or proper where two or more persons are joint- ly indicted or jointly tried. B. Peincipals and Accessories 313. Necessity and propriety of instructions. 314. SuflBciency of instructions. C. Gbade ob Degree gi" Offense 315. Necessity and propriety in general. 316. Pleadings and evidence to sustain. 317. Sufficiency of instructions. ' Form of verdict in criminal cases, see post, § 388. Instructions on admissions and confessions in criminal eases, see ante, §§ 215-221. Instructions on character of accused, see ante, §§ 236-244. Instructions on circumstantial evidence, see ante, §§ 226-235. Instructions on presumptions in criminal cases, see ante, §§ 188-196, 198, 200- 202. Instructions on reasonable doubt, see ante, §§ 257-278. Punishment in criminal cases, see post, §§ 354r-356. A. In Generai, § 306. Prod of corpus delicti The court may be required to charge that the jury should acquit the defendant if they find that the corpus delicti has not been proved,^ unless no issue is raised with respect to the commission of an offense.* It may be the duty of the court to charge as to what is proper evidence of the corpus delicti,* and though it has been held that it is not necessary, where no improper evidence has been introduced, for the judge to point out to the jury what cir- cumstances tend to prove the corpus delicti, and what ones tend 1 Territory v. Monroe, 6 P. 478, 2 proof of corpus delicti, see ante, § 218. Ariz. 1 ; Williams v. State (Tex. Cr. 2 (Tex. Cr. App.) Hopkins v. State, App.) 65 S. W. 1059. 53 S. W. 619. ' Instructions as to necessity o£ s Francis v. State, 7 Tex. App. 501. corroliOTation of confession by § 306 INSTRUCTIONS TO JDKIE3 584 to prove defendant's connection with the crime alleged,* it is also held that, where circumstances are introduced in evidence having no tendency to prove the corpus delicti, but having some tend- ency to show the guilt of the defendant, if a crime has been com- mitted, the court should charge on request that the corpus delicti cannot be proven by such circumstances.® It is improper to refer to the jury the determination of the meaning of the words "corpus delicti." ® § 307. Intent of defendant Where the guilt or innocence of the defendant depends upon the question of intent, and instructions are properly requested on that subject, they should be given,'' and an omission to instruct on intent as an element of the offense charged may constitute re- versible error, although no request is made therefor;* but where the statute on which an indictment is predicated does not couple with the prohibited act any specific intent, it is not necessary that an instruction, including all the essential elements of the offense, specifically mention the intent.® § 308. Evidence of intent It is proper to instruct that the intent with which the accused did the act alleged as an offense may be inferred from all the facts and circumstances under which the act complained of was com- mitted as disclosed by the evidence/" and an instruction to the contrary is properly refused.*^*^ 4 State v. Roberts, 63 Vt. 139, 21 be a union or joint operation of act A. 424. and intent or criminal negligence, fol- s State V. Davidson, 30 Vt. 377, 73 lowed by an explanation tbat it was Am. Dec. 312. not possible to look into the mind of e Burgess v. State,' 42 So. 681, 148 a man, and see what its workings are, Ala. 654. or to bring a photograph of the mind 7 Shaeffer v. State, 61 Ark. 241, 32 of the man and exhibit it to the jury, S. W. 679 ; State v. Essex, 175 N. W. so as to determine clearly and abso- 795, 170 Wis. 512. lutely what the workings of a human « State V. Green, 39 P. 322, 15 Mont, being's mind are, and that from ne- 424. cessity the law required the jury to 8 McOlure v. People, 61 P. 612, 27 gather the intention with which the Colo. 358; State v. Conley, 217 S. act was done fr6m all the surrounding W. 29, 280 Mo. 21. circumstances, was not objectionable lo State V. Woodward, 84 Iowa, 172, as being argumentative, misleading, 50 N. W. 885; State v. Williams, 66 or suggestive. People v. McRoberts, Iowa, 573, 24 N. W. 52. 81 P. 734, 1 Cal. App. 25. Instructions on intent held n Cross V. State, 55 Wis. 261, 12 proper. A charge that there must N. W. 425. 585 PARTICULAR MATTERS IN CRIMINAL CASES § 309 § 309. Motive or lack of motive In jurisdictions where the court is allowed to comment on the evidence, it is not improper to instruct that the establishment of a motive on the part of the defendant to commit the alleged crime makes it "more likely that he committed it than a man who had no motive." ^^ An instruction calculated to authorize the jury to imagine a motive without proof is erroneous.^* Within this rule an instruction that no one can lay bare the secrets of the mind and that there may have been a concealed motive, although it is im- possible to prove any, may be ground for reversal.^* The general rule is that it is proper to instruct, in connection with an instruc- tion that the failure of the state to show a motive for the offense charged is a circumstance in favor of the accused,^^ ' that it is not essential to a conviction that a motive be proven, ^* and instruc- tions which may mislead the jury into believing that the state is required to prove a motive on the part of the defendant are prop- erly refused.^'' Where the attention of the jury has been directed to the motive of accused in committing a crime by an instruction that a motive is not a necessary element of guilt, it is error to refuse an instruc- tion that the absence of a probable motive is a circumstance in favor of the accused, ^* and in some jurisdictions it is held without qualification that such an instruction should be given," on re- quest,*" where the evidence does not disclose a motive. In other jurisdictions the rule is that the court need not instruct on the effect of the absence of an apparent motive for the alleged crime because of the mere fact of such absence,*^ and where the intent to commit the act charged to constitute the offense has been shown or where defendant's own testimony shows a motive, the defendant is not entitled to an instruction on the effect of the ab- sence of motive.** In some jurisdictions an instruction that the x2 Commonwealth v. Keegan, 70 Pa. " state v. Santino (Mo.) 186 S. W. Super Ct. 436. 976; State v. Foley, 46 S. W. 733, 144 13 Peopie V. Bnwright, 66 P. 726, Mo. 600. 134 Cal. 527. is) State v. Johnson, 72 So. 370, 139 1* People V. En Wright, 66 P. 726, l^. 829. 134 Cal. 527. ^ .^ ^ „. . ,o 20 Vaughan v. Commonwealth, 85 15 Lanckton v. United States, 18 y^ g^^^ 8 S E 584 til- W 235''l98 Mo'y- ^"'^™^*^''' - State v! Cox. 175 S. W. 50. 264 ^'leLlnckton y. United States, 18 Mo f^l^X^ ^- ^'''^''' ^ «• ^■ App D. C. 348 ; Wheeler v. State. 63 568, 168 Mo. 449. N E 975, 158 Ind. 687; State v. 22 State v. Santino, 186 S. W. 976; David 33 S. W. 28, 131 Mo. 380. State v. Feeley, 92 S. W. 663, 194 Mo. 17 Ward V. State, 45 So. 221. 153 300, 3 L. R. A. (N. S.) 351, 112 Am. Ala 9 ; People v. Enright; 99 N. E. St. Rep. 511; State v. Lynn, 70 S. W. , 936, 256 111. 221, Ann. Cas. 1913E, 318. 127. 169 Mo. 664. § 310 INSTRUCTIONS TO JURIES 586 absence of evidence to show a motive for the crime alleged is a circumstance in favor of defendant is considered misleading.*^ § 310. Place of offense As a general rule the failure of the court in a criminal prosecu- tion to instruct on the question of venue is erroneous only where there is a question as to the proof of venue or when there is no proof of venue.** An instruction authorizing the jury to convict the defendant if they should find that he committed the acts charged in the indictment or information is not objectionable be- cause it fails to require them to find that such acts were committed at the place named in such pleading/^ and where an instruction has been given requiring the state to prove that the crime alleged was committed in the County in which the indictment was found, it is not error for the court to omit to add such direction to an in- struction that the people are not bound to prove the exact time alleged in the indictment ; *® but where, on the trial of a person charged as an accessory before the fact, the evidence tends to prove the commission of the crime in two or more counties, the court should in plain terms charge that there should be an acquittal, if no accessorial act was committed in the county in which the in- formation was filed.*' Where the question of venue is a serious one, and is fought out as an issue before the jury, it will be re- versible error to fail to submit it to them,** and the court should declare the necessity of proving the venue beyond a reasonable doubt.*' § 311. Time of offense The instructions need not specify the date of the offense, when the allegations and the proof show that it occurred on a certain day.*" and ordinarily, in a criminal prosecution, it is proper for 28 Carwile v. State, 39 So. 220, 148 ly Informed the jury that, to warrant Ala. 576; Jackson v. State, 34 So. conviction, the conversion must have 188, 136 Ala. 22. taken place in B. county. Pech v. 2* Kagsdale v. State, 32 So. 674, 134 State, 154 S. W. 998, 69 Tex. Cr. R. Ala. 24 ; Cook v. State, 35 So. 665, 46 490. Fla. 20. ' 2« Cook v. People, 52 N. E. 273, 177 28 Thain v. State, 106 N. E. 690, 182 111. 146. ^d 345; Dyer V. State, 74 Ind 594: „ Burlingim v. State, 85 N. W. 76, Walker v. State, 151 S. W. 318, 68 gi jjeb. 276. ^1tast™?tions sufficiently specific '' McKnight v. State, 156 S. W. as toXe of offense! An instru^^^ 1188' '"' Tex. Cr. R. 470. tion that defendant was guilty, if he . ^° Territory v. Caldwell, 98 P. 167, obtained possession of the mules in 1* N. M. 535. B. county and did "then and there" so State v. Gould, 170 S. W. 868, fraudulently convert same, sufficient- 261 Mo. 694, Ann. Cas. 1916B, 855. 587 PARTICULAB MATTERS IN CRIMINAL CASES § 311 the court to charge, with reference to the time of the alleged of- fense, that if the jury find that it was committed on or about' the date specified in the indictment or information, or at any date within the period of limitation, they will be warranted in con- victing the defendant,*! where only one offense is testified to and the evidence indicates no uncertainty as to the occasion referred to.s* Even where the evidence of the state shows the commission by the defendant of several ofifenses of the kind charged within the time covered by the indictment, and no election has been made or requested, the court may properly refuse to charge that to en- title the state to a conviction, and at the same time protect the delendant from a probable future prosecution, the evidence must show that the defendant committed the offense charged at a par- ticular time and upon a particular occasion.** Where, however, although the evidence shows the commission by the defendant of several distinct acts, similar to the one of which he -is accused, at different times, it also fixes the exact date of the offense charged against him, it is error for the court to instruct that the time of the offense is not material,** and in such case the defendant is entitled to an instruction that in order to convict the jury must find that he committ6d the offense on the date selected for prosecution.*^ The court may also be required to give instructions as to the date of the offense with a view of defining the duties of the jury with respect to the matter of punishment.*® An instruction that the jury may convict on finding the com- mission of an offense at any time prior to the date of the indict- ment and within the period fixed by the statute of limitations should specify the time covered by such statute,*'' and such an in- struction should confine the jury to a date anterior to the filing of the indictment or information, and should not permit conviction of an offense committed at any time before the trial.** Where the evidence raises an issue as to the date of the com- 81 People V. Reynolds, 192 P. 343; ss People v. Nichols, 124 N. W. 25, People V Sykes 101 P. 20, 10 Cal. 159 Mich. 355. See State v. Clark, App. 67; Imboden v. People, 90 P. 146 P. 1107, 27 Idaho, 48. 608, 40 Colo. 142; Ferguson v. State, 3 6 Clary v. Commonwealth, 173 S. 72 N. W. 590, 52 Neb. 432, 66 Am. St. -^ j^i 133 gy 4g_ Rep.'512; State v. Perkins, 47 A. 268, 00 t.t t, ro,r 70 N H 330 People v. Davidson, 88 N. E. 565, 3 2 Robinson v. State, 126 N. W. 750, 240 111. 191. 143 Wis 205. ^' Taylor v. State, 114 P. 628, 5 33 Long V. State, 56 Ind. 182, 26 Am. Okl. Or. 183; Mitchell v. State, 101 Rep. 19. P. 1100, 2 Okl. Cr. 442; Banks v. 34 State V. Moss, 131 P. 1132, 73 State, 101 P. 610, 2 Okl. Cr. 339. Wash. 430. 312 INSTRUCTIONS TO JURIES 588 mission of the offense, and is not inconsistent with the possibility that limitations have intervened between such commission and the indictment, the court should charge,** on request,*' that unless the offense be shown to have been committed within the statutory limitation a conviction cannot be had. § 312. Instructions necessary or proper where two or more per- sons are jointly indicted or jointly tried Where two persons jointly indicted are separately tried, the court should charge, on request, that the conviction of one de- fendant creates no presumption of the guilt of the other." Where two persons are separately indicted for the same offense, but tried jointly, the court should charge the law separately as to each case,** and where two or more persons are jointly tried for a crime the court should charge that the jury are at liberty to find one or more of the defendants guilty and, the others not guilty,** and in- structions which may lead the jury to believe that a conviction of one defendant, tried jointly with others, will require the conviction of the others, afe erroneous.** The failure, however, of the court to 3 9 State V. Kunhi, 93 N. W. 342, 119 Iowa, 461. io Thorp V. State, 129 S. W. 607, 59 Tex. Or. R. 517, 29 L. R. A. (N. S.) 421. *i Mixon V. State, 51 S. B. 580, 123 Ga. 581, 107 Am. St. Rep. 149. *2 Mayzone v. State (Tex. Or. App.) 225 S. W. 55, 43 Conn. Hayden v. Nott, 9 Conn. 367. Ga. Abrams v. State, 48 S. B. 965, 121 Ga. 170. La. State v. Daniels, 88 So. 894, 115 La. 59. Mo. State v. James, 115 S. W. 994, 216 Mo. 394 ; State v. Vaughan, 98 S. W. 2, 200 Mo. 1. Tex. Hampton v. State, 45 Tex. 154. 4* Ga. Lofton v. State, 48 S. B. 908, 121 Ga. 172. Iowa. State v. Harvey, 106 N. W. 938, 130 Iowa, 394. Miss. Davis v. State, 23 So. 770, 941, 75 Miss. 637. N. Y. People V. McGrath, 5 N. Y. Or. K. 4. Tex. Maloney y. State, 125 S. W. 36, 57 Tex. Or. R. 435; Holmes v. State, 9 Tex. App. 313. Instructions objectionable witb- in rnle. On a trial of two persons on the charge of homicide, an instruc- tion that, if the jury are satisfied that "defendants or either of them is guilty of murder, but have a reason- able doubt whether it was committed upon express or implied malice," they must give the defendants the benefit of the doubt, and not find him or them guilty of a higher degree than murder in the Second degree, is sub- ject to the criticism that the court combined the cases of both persons and made the guilt of one dependent ■ on that of the other. Abbata v. State, .102 S. W. 1125, 51 Tex. Cr. R. 510. Instructions not improper witb- in rnle. Direction that the jury could find any one or any two or all three of the defendants guilty, or that they might return a verdict of not guilty as to all of them. State v. Ford, 95 S. B. 154, 175 N. 0. 797. Where, on a trial for homicide, the court charged that the law presumed that the defendants were innocent un- til their guilt had been proved beyond a reasonable doubt, and that if on the whole case the jury had a reason- able doubt of the guilt of the defend- ants, or either of them, they should find them not guilty, or such one of them not guilty as to whom they 589 PARTICULAE MATTERS IN CEIMINAL CASES § 313 charge that the jury may find one or both of the defendants guilty or acquit one or both as they may find the facts to be from the evidence,*^ or to instruct that the jury may find one defendant guilty^ and disagree as to the other,** is not error, if no such in- struction is asked. So, where the evidence is practically the same as to each defendant so tried, and neither asks for a severance, or for a charge as to the circumstances under which the jury may make a separate finding as to either one of the defendants, the failure of the court to so charge js not error.*' B. PrINCIIIAIvS AND AcCESSORIBS § 313. Necessity and propriety of instructions Where the evidence tends to show that the accused and others acted together in the commission of the offense charged, the court may,** and should,** except in a prosecution for a misdemeanor,^' might entertain such doubt, an in- struction that if they believed that defendants, or either of them, con- spired to kill decedent, and pursuant thereto killed him, they should find them guilty of murder, was not open to the objection that, if the jury be- lieved any of the defendants to be guilty, they were required to find them all guilty. Bull v. Commonwealth, 96 S. W. 817, 29 Ky. Law Rep. 949. In- structions authorizing conviction of assault with intent to murder If de- fendants committed certain acts were not erroneous as requiring a joint conviction or joint acquittal, where other instructions authorized sepa- rate or joint convictioil or acquittal. Sellers v. State, 134 S. W. 348, 61 Tex. Cr. K. 140. *5 People V. Darr, 179 111. App. 130, judgment affirmed 104 N. E. 389, 262 111. 202; State v. James, 115 S. W. 994, 216 Mo. 394; State v. Barnett, •102 S. W. 506, 203 Mo. 640. 16 Morgan v. State, 19 N. B, 154, 117 Ind. 569. iTWelborn v. State, 42 S. E. 773, 116 Ga. 522. *8 Ala. Bailey v. State, 53 So. 296, 390, 168 Ala. 4. Cal. People V. Haney (App.) 189 P. 338 ; People v. Wong Hlng, 169 P. 357, 176 Oal. 699; People v. Liera, 149 P. 1004, 27 Cal. App. 346. Colo. Beagan v. People, 112 P. 785, 49 Colo. 316 ; Van Wyk v. People, 99 P. 1009, 45 Colo. 1. Conn. State V. Kritchman, 79 A. 75, 84 Conn. 152. Ga. Short v. State, 80 S. E. 8, 140 Ga. 780; Morman y. State, 65 S. E. 146, 133 Ga. 76; Goodin v. State, 55 S. E. 503, 126 Ga. 560. Ky. RatlifC V. Commonwealth, 206 S. W. 497, 182 Ky. 246. Miss. Spight V. State, 83 So. 84, 120 Miss. 752. Neb. Kirk v. State, 172 N. W. 527, 103 Neb. 484. Okl. Collins V. State, 175 P. 124, 15 Okl. Cr. 96. Or. State v. Chin Borkey, 176 P. 195, 91 Or. 606. Tex. Middleton v. State, 217 S. W. 1046, 86 Tex. Cr. R. 307 ; Gribble v. State, 210 S. W. 215, 85 Tex. Cr. R. 52, 3 A. L. R. 1096; Hoecker v. State, 183 S. W. 141, 79 Tex. Cr. R. 78; Lew- is V. State, 162 S. W. 866, 72 Tex. Cr. R. 377 ; Coggins v. State, 151 S. W. 311, 68 Tex. Cr. R. 266; Cortez v. State, 83 S. W. 812, 47 Tex. Cr. R. 10; McMahon v. State, 81 S. W. 296, 46 Tex. Cr. R. 540; Wingo v. State (Cr. App.) 75 S. W. 29; Grimsinger V. State, 69- S. W. 583, 44 Tex. Cr. R. 1 ; Houston v. State (Cr. App.) 47 S. W. 468. 4 8 Lake v. State, 184 S. W. 213, 79 50 Lott V. State, 127 S. W. 191, 58 Tex. Cr. R. 604. §313 INSTRUCTIONS TO JURIES 590 charge on the law of principals. In a prosecution as principal of one who did not actually commit the crime charged, the court should instruct that at the time of the commission of the offense the parties must have been acting together, each doing some part Tex. Cr. R. 234; McKniglit v. State, 156 S. W. 1188, 70 Tex. Cr. R. 470. Evidence justifying or requir- ing instructions as to principal and accessory. Where, in a prosecu- tion for robbery, it appeared that de- fendant did not personally take the property from complainant's person, but stood by holding a revolver, an instruction as to an accessory was properly given. People v. Deluce, 86 N. B. 1080, 237 111. 541. Where there is evidence that defendant, who was charged with unlawfully branding cattle not his own, caused the cattle to be branded by another, an instruc- tion that the jury could find defend- ant guilty, if he branded or caused the cattle to be branded, without in- structing as to who were principals in the offense, is erroneous. Arismendis V. State, 54 S. W. 601, 41 Tex. Cr. R. 378. In a prosecution against two for burglary, where the prosecuting witnesses saw only one person in their house, but there was evidence another participated, an instruction on accessories is warranted. People V. Hohimer, 111 N. B. 599, 271 111. 515. In a prosecution for burglary, evi- dence that at the time of the burglary defendant's codefendant was in the house, and defendant was standing on the outside and ran away as the ofla- cers approached, was suificient to au- thorize a charge defining a principal. Tally V. State, 90 S. W. 1113,- 49 Tex. Cr. R. 91. Evidence that a witness testified that on approaching the bur- glarized house he heard a whistle, which he thought came from defend- ant, who was standing near by, and witness thought he saw another per- son In the house. Young v. State, 44 S. W. 835. Where defendants were jointly indicted for burglary as prin- cipals in the first degree, and there was evidence that defendants were the actual perpetrators of the offense, and other evidence from which the jury might have found that they watched while the burglary was com- mitted, It warranted an instruction on the subject of principals in the sec- ond degree. Lofton v. State, 48 S. E. 908, 121 Ga. 172. In a prosecution for burglary of a saloon, where defendant • testified that he was called Into the place to have a drink by parties en- gaged in committing the crime, and that he left as soon as he understood the true condition of affairs, he had the right to have presented to the jury the law, applicable to his de- fense, that he was not guilty as a principal, unless he aided in the com- mission of the crime. MePherson v. State, 182 S. W. 1114, 79 Tex. Cr. R. 93. Where the state's evidence tend- ed to show that one defendant held the deceased while the other defend- ant shot him, it is proper to charge the law of principals as to the first defendant. Bell v. State, 190 S. W. 732, 80 Tex. Cr. R. 475. Where the only evidence as to defendant's con- ntection with the offense of unlawfully killing a hog was circumstantial, and the evidence for the state tended to show a conspiracy on the part of de- fendant and others to kill hogs be- longing to a certain person, it was error to refuse to instruct that de- fendant was not chargeable with any- thing which any other one named in the indictment may have done, unless he advised, aided, or abetted others In the commission of the offense, intend- ing at the time to aid or encourage the commission of the offense. How- ser v. State, 23 So. 681, 117 Ala. 176. Where the evidence tended to show that defendant might have been guilty of homicide upon the theory that he personally delivered the fatal blow, or that there was a conspiracy between him and others, in pursuance of which one of his associates deliver- ed the fatal blow, or that though there was no such conspiracy and though defendant did not deliver the fatal blow, yet he was present, aid- ing and abetting, it was error to re- fuse an instruction that, if the jury 591 PAETICULAB MATTERS Il» CEIMINAL CASES § 313 in the execution of the common purpose." Where there is evi- dence showing that the defendant was guilty only as an accom- plice, the jury should be afifirmatively instructed that if the de- fendant was not a principal he cannot be convicted under an in- dictment charging him as principal,^* and where the defendant has adrnitted subsequent knowledge of the crime charged against him he is entitled to an instruction that such confession is not evi- dence of actual participation in the crime, but goes only to show that he was an accessory after the fact, and that it is no basis for his conviction as principal or active participant.^* In a prosecution of one as an accorriplice, the jury should be charged in some jurisdictions that the state must prove, first, the commission of the crime by the alleged principal, and, second, that defendant was an accomplice as charged, and that the testimony of the alleged principal is not sufficient to prove either of these facts, but must be corroborated,^ and, in some jurisdictions, where one is charged as accomplice in a crime the court should distinctly instruct that in order to convict the jury must believe that the de- fendant was not present at the commission of the crime, and that it was committed by a person or persons who were advised, command- ed, or encouraged by the defendant to commit it,®® although it is held that, where the evidence conclusively shows the guilt of the principal defendant, it is not necessary to instruct that the jury must believe him to be guilty before they, can convict the acces- sory.®® found that defendant and his asso- Harmless error. Where the court ciates acted illegally and maliciously had charged that, before the ju' in what they did, yet unless they were ry could convict defendaiTt, they satisfied beyond a reasonable doubt, must find beyond a reasonable doubt and to a moral certainty, that their that she was a principal, a failure acts were done pursuant to a mutual to charge that, if she were an ac- agreement, they should not convict complice or an accessory, they must defendant unless they believed be- acquit her, was without prejudice yond a reasonable doubt, and to a where the evidence shows that, if moral certainty, that defendant in- guilty at all, she was guilty as a prin- flicted the fatal wound, or aided and cipal. Harris v. State, 37 Tex. Cr. abetted whoever did Inflict it. Liner R. 441, 36 S. W. 88. V. State, 27 So. 438, 124 Ala. 1. Evi- 53 state v. Payne, 6 Wash. 563, 34 dence in a prosecution for obstructing , Pac. 317. a railroad.track, showing that defend- ,^ ^one v. State, 216 S. W. 190, 86 ant and another passed the place of rp^^ q^ jj 291 the obstruction and were seen about " ' ' „' , ^-^ „ ^ ^^^ „„ there calls for an instruction on prin- "" Cone v. State, 216 S. W. 190, 86 cipals. Clay v. State, 146 S, W. 166, Tex. Or. R. 291; Le^er v. State, 29 65 Tex Or. R. 590. Tex. App. 154, 15 S. W. 411 ; Dugger 61 Middleton V. State, 217 S. W. v. State, 27 Tex. App. 95, 10 S. W. 1046, 86 Tex, Cr. R. 307. ^^63. 5 2 Silvas V. State, 159 S. W. 223, 71 ^« Gullatt v. State, 80 S. E. 340, 14 Tex. Cr. R. 213. Ga. App. 53. § 313 INSTEUCf IONS TO JURIES 592 It is unnecessary to charge as to accessories, where the court defines a principal, tells the jury they can only convict if they be-' lieve the defendant to be a principal as defined, and then charges that if they have a reasonable doubt as to whether the defendant is guilty as a principal as defined to them he is entitled to the benefit of the doubt and should be acquitted." Where all the de- fendants are principal offenders, the court may so charge.®* § 314. Sufficiency of instructions An instruction which follbws the language of the statute in de- fining a principal or an accessory will ordinarily be sufficient,^ and usually it is better to do so.** In a proper case the court may call the attention of the jury to a provision of the statute that an accessory may be prosecuted and punished as though he were the principal offender.®^ In an instruction defining who are principals, the court should only quote that part of the statute relating to principals, omitting the part not applicable to principals.®^ In some jurisdictions an instruction defining accomplices as all persons who participate in an offense as principals, and principals As "all persons acting together in the commission of an offense," is sufficient.®* An instruction calculated to give the jury the im- B' Spradling v. State (Tex. Or. App.) 42 S. W. 294. 68 GaYinia v. State, 145 S. W. 594, 65 Tex. Cr. E. 572; Hernandez v. State (Tex. Cr. App.) 145 S. W. 596. 6 8 Burnett v. State, 96 S. W. 1007, 80 Ark. 225; State v. Bland, 76 P. 780, 9 IdahO) 796 ; People v. Everett, 90 N. E. 226, 242 111. 628 ; People v. bee, 86 N. E. 573, 237 111. 272 ; Grim- singer V. State, 69 S. W. 583, 44 Tex. Cr. R. 1. eo Clerget v. State, 103 S. W. 381, 83 Ark. 227; State v. Allen, 87 P. 177, 34 Mont. 403 ; State v. Geddes, 55 P. 919, 22 Mont. 68. 61 State V. Carey, 56 A. 632, 76 Conn. 342. 62 Sapp V. State, 190 S. W. 489, 80 Tex. Cr. R. 363. 03 Hilton V. State, 53 S. W. 113, 41 Tex. Cr. K. 190. Otber instructions on principal and accessory held proper. An in- struction in giving general definition of a principal wlucli quoted the stat- ute, to the effect that any person who advises or agrees to the commission of an offense and Is present when It is committed, whether or not he aids in the illegal act, is a principal, was not error. Ferguson v. State, 187 S. W. 476, 79 Tex. Cr. R. 641. A charge that all persons are "principals" who are guilty of acting together in the commission of an offense, and that the criterion is did the parties act to- gether, was the act done in pursuance of a common intent and previously formed design in which the minds of ail united ; if so, they are alike guil- ty, providing the offense was actually committed during the existence and in the execution of the common design and intent, whether all were actually bodily present when the offense was actually committed or not — sufficient- ly submitted the law on the subject of principals. Lott v. State, 127 S. W. 191, 58 Tex. Cr. R. 604. 4n instruc- tion that all persons are principals who acted together in the commission of an offense, and that where an of- fense is committed by one or more persons, and others are present, and, knowing the unlawful intent, aid those actually engaged in the unlaw- ful act, such persons are principals, who may be prosecuted as such, fol- 598 PARTICULAR MATTERS IN CRIMINAL CASES §314 pression that mere knowledge by one defendant, that the crime charged was in conteinplation by the person or persons who ac- tually committed it would constitute an aiding or abetting is er- lowed by an instruction that, before defendant could be convicted, it must be found beyond a reasonable doubt that he was present "knowing the un- lawful intent and aided the persons committing the offense," aptly pre- sents the issue as to intent. Dowling V. State, 140 S. W. 224, 63 Tex. Or. R. 366. An instruction that if a inan as- sist, or encourage another by his pres- ence consciously, knowingly, purpose- ly, knowing that the other person un- derstands that he is there as an en- courager, he is an accomplice though he does not lift a hand is a reasona- bly correct exposition of the law on the subject. Eaton v. State, 63 So. 41, 8 Ala. App. 136. Where, In a prosecti- tion for drowning accused's infant child, there was no evidence that any one could have been connected there- with except accused and its mother, and the evidence strongly rebutted the theory that she did the act, a charge that if the jury believed be- yond a reasonable doubt that the child was drowned, but believed that accus- ed was not present at the time and . did not drown it, or had a reasonable doubt thereof, they should acquit, suf- ficiently presented the question of lia- bility of accused as an accomplice. Gossett V. State, 123 S. W. 428, 5T Tex. Or. R. 43. On a prosecution for assault with intent to kill, where there is evidence that defendant was an accessory, an instruction that one is guilty as principal of an offense committed solely by another, when he conspired with the other to commit It, and that tlie conspiracy need not be shown by positive, but may be shown by circumstantial, evidence, is proper. Elmore v. State, 110 Ala. 63, 20 So. 323. An instruction that if one of the defendants made the felonious assault, and If the others were pres- ent, aiding,' and abetting, or ready, if necessary, to aid and abet therein, they are equally guilty with him, is not erroneous, since the word "ready" means' prepared in mind, and disposed to so aid and abet. State v. Gooch, 105 Mo. 392, 16 S. W. 892. An in- INST.TO JUKIES— 38 struction that the jury would be war- ranted in finding defendants guilty if they believed that "the defendants, or either of them, the other being present and abetting," did willfully, etc., shoot deceased, is not ground for reversal, as requiring a conviction of both de- fendants if a conviction of one was had. State v. Taylor, 134 Mo. 109, 35 S. W. 92. In a trial for murder, an instruction that if defendant was presenffor the purpose of actual as- sistance as the circumstances might demand, and the principal was en- couraged to take the life of the de- ceased by the presence of defendant, then defendant aided and abetted in the killing of the deceased, is proper- ly given. Singleton v. State, 106 Ala. 49, 17 So. 327. Where, on a prosecu- tion for larceny, there is evidence that others were present when the crime was committed, who might have acted in concert with defendant, it is prop- er to instruct "the jury to convict if they find that the offense was com- mitted, and the opportunity was such as to point to the defendant, as the sole perpetrator, or the perpetrator with others, with whom she acted in concert. Territory v. De Gutman, 8 N. M. 92, 42 P. 68. The charge, in a prosecution for larceny, that any participation in a general felonious plan, if there is such a plan and there be actual or constructive presence, will make one a principal, is not error, when joined with a charge that, to be convicted of larceny as a principal, one must be actually or constructive- ly present, and that previous consent or procurement of the taking and car- rying away, or subsequent reception, of the thing stolen, will not make one a principal. Baldwin v. State, 35 So. 220, 46 Fla. 115. Where, on a prose- cution for theft of hogs, the defense was that defendant was not connected with the original theft of the prop- erty, a charge by the court, after de- fining "principals," that defendant must be acquitted unless the evidence satisfied the jury that defendant took the hogs, or that some other person §314 INSTRUCTIONS TO JURIES 594 roneous.** In some jurisdictions an instruction which authorizes the jury to convict the defendant as a principal if he acted with others in the commission of the offense charged, and the act was done in pursuance of a common intent, whether the defendant was in fact actually present, is erroneous, as authorizing a conviction as a principal on facts which make the defendant guilty only as an accomplice.®^ The acts necessary to constitute one an aider and abettor of an offense cannot well be embodied in an instruction without mis- leading the jury, and accordingly it is the better practice simply to instruct the jury that a party aiding and abetting the commission of an offense is guilty.*® C. Gradb or De^grbe of Op?e;nsB § 315. Necessity and propriety in general Where the offense charged is one that admits of degrees, and the evidence justifies it, an instruction looking to the conviction of defendant of a lower grade of offense than that charged in the in- dictment, but necessarily included in it, is proper,®' and should be took the hogs, and that defendant was so connected with such taking as would make him a "principal," as be- fore defined, is sufficient. Tucker v. State (Tex. Cr. App.) 23 S. W. 682. Instructions on principal and accessory held improper. In a prosecution for hog theft, where it appeared that the hogs were taken from their accustomed range, so that whoever took them, by driving them or reducing them to actual possession, was guilty as an original taker, and any one who had connection with the hogs subsequent to such taking was not a principal, but there was no evi- dence showing how the hogs disap- peared from the range, or who took them, and it was sought by circum- stantial evidence to connect accused and another with the possession of the hogs, though they were never seen in accused's possession, a charge that all persons are principals who are guilty of acting together in the com- mission of an offense, and that if the jury believed that one or more of the hogs in question were fraudulently taken as charged, and that accused, with one or more others, acted to- gether in such taking, accused would be a principal, and that by acting to- gether was meant that accused was present, and that the persons acted In concert towards the accomplishment of a common purpose, one performing one part and another another part in aid of its accomplishment at the time of its perpetration, was erroneous, as permitting accused to be convicted as principal, whether he participated in the original taking or not. McClure V. State, 128 S. W. 386, 59 Tex. Or. R. 287. 64 Olem V. State, 33 Ind. 418 ; State V. Bartlett, 105 N. W. 59, 128 Iowa, 518; True v. Commonwealth, 90 Ky. 651, 14 S. "W. 684; State v. Cox, 65 Mo. 29. 8 6 Silvas V. State, 159 S. "W. 228, 71 Tex. Or. R. 213. 6 8 Smith V. Commonwealth, 4 Ky. Law Rep. (abstract) 353. 67 Ark. Pickett V. Stat6, 141 S. W. 732, 91 Ark. 570. Mo. State V. Schieller, 130 Mo. 510, 32 S. W. 976; State v. Musick, 101 Mo. 260, 14 S. W. 212. NBb. McConnell v. State, 110 N. W. 666, 77 Neb. 773. 595 PARTICULAR MATTERS IN CRIMINAL CASES §315 given«8 on request.*** The above rule applies where the trial court has a reasonable doubt about the propriety of such an in- Utah. People V. Thiede, 11 Utah, 241, 39 Pac. 837. Wyo. Nicholson v. State, 106 P. 929, 18 Wyo. 298. 6 8 Ariz. Stokes v. Territory, 127 P. 742, 14 Ariz. 242. Cal. People V. Wilson, 156 P. 377, 29 Cal. App. 563. Ga. Weldon v. State, 94 S. E. 326, 21 Ga. App. 330; Griffln v. State, 89 S. E. 537, 18 Ga. App. 462; Tanner V. State, 88 S. E. 554, 145 Ga. 71; McGuffie V. State, 17 Ga. 497. lotra. State V. Thompson, 103 N. W. 377, 127 Iowa, 440 ; State v. Des- mond, 80 N. W. 214, 109 Iowa, 72. Kan. State v. Bloom, 136 P. 951, 91 Kan. 156 ; State v. Franklin, 77 P. 588, 69 Kan. 798. la. State V. Wright, 28 So. 909, 104 La. 44. Miiui. State V. Brinkman, 175 N. W. 1006, 145 Minn. 18. Mo. State V. Barham, 82 Mo. 67; State V. Tate, 12 Mo. App. 327; State V. Robinson, 73 Mo. 306 ;■ State v. Bryant, 55 Mo. 75; State v. Wyatt, 50 Mo. 309. N. M. Territory v. Nichols, 3 N. M. 76, 2 P. 78. N. Y. People V. Young, 88 N. Y. S. 1063, 96 App. Div. 33 ; Fitzgerrold V. People, 37 N. Y. 413. N. C. State v. Merrick, 88 S. E. 501, 171 N. C. 788. Ohio. Hagan v. State, 10 Ohio St. 459. Okl. Newby v. State (Okl. Or. App.) 188 P. 124: Kent v. State, 126 P. 1040, 8 Okl. Or. 188. Or, State V. Cody, 18 Or. 506, 23 P. 891, 24 P. 895. Tenn. Jones v. State, 161 S. W. 1016, 128 Tenn. 493 ; Nelson v. State, 2 Swan, 237. Tex. Jones v. State, 216 S. W. 884, 86 Tex. Cr. E. 371; Wood v. State, 150 S. W. 780, 68 Tex. Cr. R. 58 ; Joy V. State, 123 S. W. 584, 57 Tex. OT. R, 93 ; Cockerell v. State, 32 Tex. Cr. R. 585, 25 S. W. 421; McPhail v. State, 10 Tex. App. 128; Gatlin v. State, 5 Tex. App. 531 ; Taliaferro v. State, 40 Tex. 523 ; Peflerling v. State, 40 Tex. 486; Marshall v. State, 40 Tex. 200; Hudson v. State, 40 Tex. X2. Wis. Weisenbach v. State, 119 N. W. 843, 138 Wis. 152. Instructions held necessary un- der rule. On trial of an indictment for burglary and larceny, under a statute providing that, where a per- son committing burglary also commits a larceny, he may be prosecuted for both in the same indictment, and, if convicted, shall be Imprisoned in the penitentiary, in addition to the pun- ishment prescribed for burglary, not less than two nor more than five years for the larceny, the court should in- struct the jury that they might con- vict of burglary and acquit of larceny or acquit of the former and convict of the latter, or convict or acquit of both. State v. Brinkley, 47 S. W. 793, 146 Mo. 37. Conviction of first and second offenses as misdemeanors. In a prosecution for a felony under a stat- ute which also defines first and second offenses as misdemeanors with differ- ent penalties attached, defendant may be acquitted. of felony but convicted for a first or second ofCense, and in- structions should be given thereon, especially when evidence as to former offense is more doubtful than as to principal offense charged. ' Wozniak V. State, 174 N. W. 298, 103 Neb. 749. Joint trial of tii^'o defendants. In a joint trial for murder, it is the duty of the judge, if convinced that either prisoner is guilty of a less of- fense than that charged, to so instruct the jury, without regard to its effect 6 9 Ark. Roberson v. State, 160 S. W. 214, 109 Ark. 420 ; Collins v. State, 143 S. W. 1075, 102 Ark. 180. Kan. State v. McAnarney, 79 P. 137, 70 Kan. 679. N. Y. Foster v. People, 50 N. Y. 598. Okl. Ex parte Wills, 148 P. 1069, 12 Okl. Cr. 596 ; Moody v. State, 148 P.. 1055, 11 Okl. Cr. 471. Tex. Hemanus v. State, 7 Tex. App. 372. § 315 INSTEUCTIONS TO JURIES 596 struction," and slight evidence that the offense committed may- have been of a lower degree than the one charged will make it proper or necessary for the court to charge the law of such inferior offense.'^ The unsupported evidence of the accused will be suffi- cient for that purpose.'* Such an instruction should be given, un- less the evidence positively excludes any inference that an inferior degree of the crime charged was committed, and to require such submission the defendant need not show facts justifying the conclu- sion that the lesser crime was committed.'* It is only where the court may hold as a matter of law that the offense, if any, of which the defendant is guilty is the highest possible degree of the offense charged, that included offenses need not be submitted,'* and an instruction that withdraws from the jury the consideration ot ele- ments in the case tending to reduce the degree of the crime charg- ed is reversible error.'^ Instructions permitting the jury to bring in a verdict of guilty of the particular grade of Offense for which the defendant is on trial, on finding him guilty of a higher grade, are erroneous.'® In most jurisdictions in the absence of a request so to do, the general rule is that it is not error for the court to fail to instruct as to the various degrees of the crime charged and as to the con- ditions of proof under which they may convict of a lesser degree." upon the other prisoner. State v. Tex. Cr. R. 318; Parker v. State, 3 Pratt, 88 N. O. 639. S. W. 100, 22 Tex. App. 105. Instructions held improper un- 7' Ark. Adcoct v. State, 83 S. W. der rule. • In a prosecution for as- 318, 73 Ark. 625, 626; Hamilton v. sault with intent to murder, where, State, 36 S. W. 1054, 62 Ark. 543. under the information and evidence, Ariz. Ward v. Territory, 64 P. 441, the defendant could have been con- 7 Ariz. 241, 3 Ann. Cas. 137. victed of an assault likely to produce Cal, People v. Medina, 79 P. 842, great bodily injury, it was error to 146 Cal. 142; People v. Clark, 79 P. charge that Ije could only be con- 434, 145 Cal. 727; People v. Bai- victed of assault with intent to com- ley, 76 P. 49, 142 Cal. 434; People mit murder, or of a simple assault. v. Arnold, 48 P. 803, 116 Cal. 682; People V. Watson, 57 P. 1071, 125 Cal. People v. Barney, 47 P. 41, 114 Cal. 342. 554; People v. McNutt, 93 Cal. 658, '0 State V. McGowan, 93 P. 552, 36 29 P. 243. Mont. 422. Colo, Ray v. People, 167 P. 954, 71 State V. Clark, 77 P. 287, 69 Kan. 63 Colo. 376 ; Miller v. People, 46 P. 576 ; State v. Patterson, 52 Kan. 335, ill, 23 Colo. 95. 34 P. 784. Fla. Cross v. State, 74 So. 593, 73 7 2 State V. Clark, 77 P. 287, 69 Kan. Fla. 530 ; Lindsey v. State, 43 So. 87, 576. 53 Fla. 56; Copeland v. State^ 26 So. 7 3 State V. Gottstein, 191 P. 766, 319, 41 Fla. 320. Compare Johnson 111 Wash. 600. V. State, 43 So. 779, 53 Fla. 45. 7* State V. Dimmitt, 169 N. W. 137, Ga. Tyson v. State, 97 S. B. 458, 184 Iowa, 870. 23 Ga. App. 20 ; Green v. State, 97 7 5 Dolan V. State, 44 Neb. 643. 62 N. S. E. 201, 22 Ga. App. 793. W. 1090. Idaho. State v. White, 61 P. 517, 76 Lomax v. State, 43 S. W. 92, 38 7 Idaho, 150. 597 PARTICULAK MATTERS IN CBIMINAL CASES §315 In some jurisdictions, however, the duty of the court to so instruct exists, irrespective of whether the defendant requests such an in- struction or not.'"* In Missouri, under a recent statute requiring the court to instruct upon all questions of law necessary for the information of the jury, the court should, whether so requested or not, in a proper case, instruct upon minor offenses.'" In Georgia it is held that while, if the issue of included offenses is presented merely by the statement of the defendant, it will not be error to fail to charge thereon in the absence of a request,*" the rule is otherwise where the issue is presented by the evidence.*^ ni. People V. Rozanski, 109 N. B. 711. 268 111. 607. Ind. Barnett v. State, 100 Ind. 171; McClary v. State, 75 Ind. 200. Ind. T. Roper v. United States, 104 S. W. 584, 7 Ind. T. 185, rehearing denied 97 P. 1022, 1 Okl. Cr. 712. Kan. State v. Ewing, 173 P. 927, 103 Kan. 399 ; State v. Truskett. 118 P. 1047, 85 Kan. 804 ; State v. New- ton, 87 P. 757, 74 Kan. 561. Iia. State v. Marqueze, 45 La. Ann. 41, 12 So. 128. Mich. People v. Ezzo, 104 Mich. 341, 62 N. W. 407. Minn. State v. Gaularpp, 174 N. W. 445, 144 Minn. 86. Neb. Curtis v.. State, 150 N. W. 264, 97 Neb. 397 ; Krause v. State, 129 N. W. 1020, 88 Neb. 473, Ann. Cas. 1912B, 736; McConnell v. State, 110 N. W. 666, 77 Neb. 773; Barr v. State, 63 N. W. 856, 45 Neb. 458; Thurman v. State, 32 Neb. 224, 49 N. W. 338. N, Y. People V. Jordan, 109 N. Y. S. 840, 125 App. Div. 522 ; McKee v. People, 34 How. Prac. 230. Obio. State V. McCoy, 103 N. B. 136, 88 Ohio St 447. Op, State v. Reyner, 91 P. 301, 50 Or. 224. S. C. State V. Malloy, 78 S. E. 995, 95 S. C. 441, Ann. Cas. 1915C, 1053, iudgment affirmed Malloy v. State of South Carolina, 35 S. Ct. 507, 237 U. S. 180, 59 L. Bd. 905. S. D. State V. Frazer, 121 N. W. 790, 23 S. D. 304; State v. Sutterfield, 119 N. W. 548, 22 S. D. 584 ; State v. Horn, 111 N. W. 552, 21 S. D. 237. Tex. Patten v. State, 209 S. W. 664, 84 Tex. Cr. R. 584. Vt. State V. Hanlon, 62 Vt. 334. 19 A. 773. "Wash. State v. Parsons, 87 P. 349, 44 Wash. 299, 7 L. R. A. (N. S.) 566, 120 Am. St. Rep. 1003, 12 Ann. Cas. 61. Wis. Weisenbach v. State, 119 N. W. 843, 138 Wis. 152 ; Cupps v. State, 97 N. W. 210, 120 Wis. 504, 102 Am. St. Rep. 996, rehearing denied 98 N, W. 546, 120 Wis. 504, 102 Am. St. Rep. 996. 7 8N. M. Territory V. Nichols, 3 N. M. 76, 2 P. 78. N. C. State v. Merrick, 88 S. E. 501. 171 N. C. 788. Okl. Steeley v. State (Cr. App.) 187 P. 821; Palmer V. State (Cr. App.) 187 P. 502 ; Kent v. State, 126 P. 1040, 8 Okl. Cr. 188; Atchison v. State, 105 P. 387, 3 Okl. Or. 295 ; Can- non V. Territory, 99 P. 622, 1 Okl. Cr. 600. Contra, State v. Davidson, 90 S. E. 688, 172 N. C. 944. ID State V. Hloag, 134 S. W. 509, 232 ■ Mo. 308 ; State v. Turlington, 102 Mo. 642, 15 S. W. 141. soHightower v. State, 101 S. E. 918, 24 Ga. App. 701; Mulling v. State, 89 S- B. 221, 18 Ga. App. 205, conforming to answer to certified questions 88 S. B. 575, 145 Ga. 36; Pollard V. State, 86 S. E. 1096, 144 Ga. 229; Roberts v. State, 84 S. E. 122, 143 Ga. 71 ; Harris v. State, 83 S. E. 514, 142 6a. 627; Hawkins v. State, 80 S. E. 711, 141 Ga. 212; McLaugh- Ivj. V. State, 80 S. B. 631, 141 Ga. 132 ; Helms V. State, 72 S. E. 246, 136 Ga. 799; Cargile v. State, 70 S. E. 873, 136 Ga. 55; Richards v. State, 70 S. E. 868,' 136 Ga. 67 ; Johnson v. State, 60 S. E. 813, 4 Ga. App. 59; Baker V. State, 36 S. E. 607, 111 Ga. 141. 81 Tanner v. State, 88 S. E. 554, 145 §315 INSTRUCTIONS TO JURIES 598 In some jurisdictions it is held that, while it is ordinarily true that a mere failure to instruct on a lesser included offense consti- tutes simply a nondirection, and is not ground for reversal, in the absence of a request for such an instruction, an exception to this rule exists in prosecutions for murder, and in such jurisdictions, in a murder case the court should, on its own motion, instruct on included offenses.** § 316. Pleadings and evidence to sustain Instructions upon the different degrees or grades of an offense involved in a criminal proceeding should be based upon the in- dictment, and, if a nolle prosequi has been entered upon a count therein charging a particular grade of the offense, it is error to give an instruction upon such grade.** While the law of each degree of the crime charged which the evidence tends to prove should be given to the jury, if the evi- dence only tends to prove the higher degree, or does not tend to prove an offense included in that charged, the court is not required to instruct on a lower degree, or on included offenses,** and if a Ga. 71; Kimball v. State, 37 S. K S86, 112 Ga. 541. 82 State V. p'Connor, 44 So. 265, 119 La. 464; State v. Thomas, 23 So. 250, 50 La. Ann. 148 ; Kraus v. State, 169 N. W. 3, 102 Neb. 690. 8 3 Sorio V. State, 22 Tex. App. 633, 3 S. "W. 784. 84 Ark. Carlton v. State, 161 S. "W. 145, 109 Ark. 516. Cal, People v. Wright, 93 Cal. 564, 29 P. 240; People v. TuHey, 50 Cal. 469. Colo. Sevilla v. People, 177 P. 135, 65 Colo. 437. Ga. Livingston v. State, 97 S. E. S54, 148 Ga. 686; Lindsey v. State, 88 S. E. 202, 145 Ga. 9; Wade v. State, 75 S. E. 494, 11 Ga. App. 411: Gibson v. State, 72 S. E. 944, 10 Ga. App. 117; Robinson v. State, 84 Ga. 674, 11 S. B. 544; Boyd v. State, 17 Ga. 194. 111. People V. Moore, . 114 N. E. 906, 276 111. 392. Iowa. State V. Newcomber, 174 N. W. 255; State v. Leete, 174 N. W. 253, 187 Iowa, 305 ; State v. Luther, 129 ]^f. W. 801, 150 Ipwa, 158 ; State V. Dean, 126 N. W. 692, 148 Iowa, 566; State v. Atkins, 97 N. W. 996, 122 Iowa, 161; State v. Sherman, 77 N. W. 461, 106 Iowa, 684; State v. Tippet, 94 Iowa, 646, 63 N. W. 445. Kam. State v. Sparks, 99 P. 1130, 79 Kan. 548 ; State v. Mowry, 37 Kan. 369, 15 P. 282. Ky. Wattles v. Commonwealth, 215 S. W. 291, 185 Ky. 486; Klette V. Commonwealth, 177 S. W. 258, 165 Ky. 430. la. State V. Kemp, 45 So. 283, 120 La. 378; State v. Ftuge, 31 So. 323, 106 La. 694. Mich. People V. De Meaux, 160 N. W. 634, 194 Mich. 18; People v. Ez- zo, 104 Mich. 341, 62 N. W. 407 ; Peo- ple y. Fuhrmann, 103 Mich. 593, 61 N. W. 865 ; People v. Repke, 103 Mich. 459, 61 N. W. 861. Minn. State v. Damuth, 160 N. W. 196, 135 Minn. 76. Miss. Skates v. State, 64 Miss. 644, 1 So. 843, 60 Am. Rep. 70 ; Vip- gil V. State, 63 Miss. 317. Mo. State V. - Dipley, 147 S. W. Ill, 242 Mo. 461 ; State v. Colvin, 126 S. W. 448, 226 Mo. 446 ; State v. Mc- Caffery, 125 S. W. 468, 225 Mo. 617: State V. Nieuhaus, 117 S. W. 73, 217 Mo. 332; State v. Johnson, 129 Mo. 26, 31 S. W. 339 ; State v. Woods, 124 Mo. 412, 27 S. W. 1114 ; State v. Ma- loney, 118 Mto. 112, 23 S. W. 1084;. 599 PARTICULAR MATT-ERS IN CRIMINAL CASES §316 minor offense is not necessarily included within the terms of the greater offense as set forth in the indictment, the court may prop- erly refuse to give in charge to the jury the law applicable to the niinor offense.*^ Where the, evidence shows that the defendant is either guilty of the offense charged or innocent the court may so instruct,^^ and is not required to instruct on lower grades of the offense, or on included offenses.*' State V. Wilson, 88 Mo. 13 ; State v. Stoeckli, 71 Mo. 559; State v. Kil- gore, 70 Mo. 546; State v. Lane, 64 Mo. 319. Mont. State v. Karri, 149 P. 956, 51 Mont. 157, L. R. A. 1916F, 90. Neb. Tliompson v. State, 122 N. AV. 986, S5 Neb. 244; Strong v. State, 88 N. W. 772, 63 Neb. 440. Nev. State v. Bnkbouse, 160 P. 23, 40 Nev. 1. N, Y. People V. Travis, 157 N. Y. S. 577, 172 App. DIv. 959. Okl. Nail V. State (Cr. App.) 192 P. 592 ; Rhoades v. State, 184 P. 918, 16 Olil. Cr. 446 ; Inklebarger v. State, 127 P. 707, 8 Okl. Cr. 316 ; Fooshee v. State, 108 P. 554, 3 Okl. Cr. 666; Territory v. Gatliff, 37 P. 809, 2 Okl. 523. Op. State v. Megorden, 88 P. 306, 49 Or. 259, 14 Ann. Cas. 130. Tenn. Good v. State, 1 Lea, 293; ■ Ray V. State, 3 Heisk. 379. Tex. Hooper v. State, 160 S. W. 1187, 72 Tex. Cr. R. 82 ; Irby v. State, 155 S. W. 543, 69 Tes. Cr. R. 619; Hardin v. State, 103 S. W. 401, 51 Tex. Cr. R. 559 ; Hartley v. State, 71 S. W. 603 ; Stiener v. State, 33 Tex. Cr. R. 291, 26 S. W. 214; Hodge v. State (Or. App.) 26 S. W. 69; Neyland V. State, 13 Tex. App. 536; Winn v. State, 5 Tex. App. 621; Gatlin v. State, o Tex. App. 531 ; Sims v. State, 4 Tex.. App. 144. ■Wash. State V. Murphy, 172 P. 544, 101 Wash. 425; State v. Rey- nolds, 162 P. 358, 94 Wash. 270; State v. Copeland, 119 P. 607, 66 Wash. 243; State v. Kruger, 111 P. 769, 60 Wash. 542 ; State v. McPhail, 81 P. 683, 39 Wash. 199. Wis. Dillon V. State, 119 N. W. 352, 137 Wis. 655, 16 Ann. Cas. 913. Offense not divided into degrees. Where, under a statute, there are de- grees of crime, and the jury are charged with the duty of finding the degree, it is proper for the court to in- struct in respect to the acts necessa- ry to constitute the crime in each de- gree; but, where the offense charged is not divided into degrees, the court is not required to charge as to an of- fense that might be included in the charge made, but which the evidence would not warrant. State v. Kapel- ino, 108 iN. W. 335, 20 S. D. 591. 8 5 Lindsey v. State, 43 So. 87, 53 Fla. 56. 8 6 Wilder v. State, 96 S. E. 325, 148 Ga. 270; State v. Nelson, 97 N. W. 652, 91 Minn. 143; State v. Moyni- han, 106 A. 817, 93 N. J. Law, 253; State V. Cox, 110 N. O. 503, 14 S. E. 688 ; State v. Sanders, 103 N. W. 419, 14 N. D. 203. 87 Ala. Miller v. State, 40 So. 47, 145 Ala. 677; Braham v. State, 38 So. 919, 143 Ala. 28. Ark. Rogers v. State, 206 S. W. 152, 136 Ark. 161. Cal. People V. Tugwell, 163 P. 508, .32 Cal. App. 520 ; People v. Rog- ers, 126 P. 143, 163 Cal. 476. Ga. Todd v. State, 97 S. E. 668, 148 Ga. 634; Brookins v. State, 28 S. E. 77, 100 Ga. 321. Iowa. State v. Ralston, 116 N. W. 1058, 139 Iowa, 44 ; State v. Akin, 94 ' Iowa, 50, 62 N. W. 667 ; State v. Jor- dan, 87 Iowa, 86, 54 N. W. 63. Mo. State v. Stenzel, 220 S. W. 882. Mont. State v. McDonald, 149 P. 279, 51 Mont. 1. N. Y. People V. Chapman, 121 N. E. 381, 224 N. Y. 463. Okl. Leseney v. State, 163 P. 956, 13 Qkl. Cr. 247. Tex. Marshbanks v. State, 192 S. W. 246, 80 Tex. Cr. R. 507; Greer v. State (Tex. Cr. App.) 65 S. W. 1075; §317 INSTRUCTIONS TO JURIES 600 § 317. Sufficiency of instructions The mode and extent of submitting to the jury the several de- grees of crime included in the indictment must, like other duties of the court, rest largely in its discretion.** An instruction that the jury may convict of either of two degrees of the crime charged, defining them,** or. requiring them to specify in their verdict the degree of the offense,** sufficiently states the power and duty of the jury to ascertain such degree, in the absence of a request for further instructions. Instructions on this head should be so fram- ed as not to give the jury the impression that they must convict the defendant of the lower degree, although they may believe he is not guilty of any offense.®^ Darlington v. State, 50 S. W. 375, 40 Tex. Cr. R. 333. Wash. State v. Palmer, 176 P. 547, 104 Wash. 396. Wyo. Eoss V. State, 93 P. 299, 16 Wyo. 285, rehearing denied 94 P. 217, 16 Wyo. 285. 88 State V. Conley, 39 Me. 78. 8 9 State V. Broadbent, 48 P. 775, 19 Mont. 467. 80 Commonwealth v. Sheets, 46 A. 753, 197 Pa. 69. Duty on convicting of minor de- gree of offense charged, to acquit of higher degree, see post, § 389. »i Smith V. Commonwealth, 55 S. W. 718, 108 Ky. 53, 21 Ky. Law Rep. 1470; Beaudien v. State, 8 Ohio St. 634 ; Greta v. State, 9 Tex. App. 429. Instructions held not objeotion- aWe under rule. Where, after charging that there was a presump- tion of innocence in favor of defend- ant as to each and every element' of the offense, and that the jury must acquit unless the state established by the evidence the existence of each and every element of the offense, and defendant's guilt thereof beyond all reasonable doubt, the court charged that, in passing on the question as to what degree of homicide 'defendant was guilty of, if they had a reason- able doubt as to wljether it should be a higher or lower grade they should give him the benefit of the doubt, and return a verdict of guilty of the lower offense rather than the higher, provided they had a reason- able doubt, and immediately after it was charged that they could not con- vict of any degree of homicide if they had a reasonable doubt of defendant's guilt; and then, at defendant's re- quest, it was charged that it was their duty to either acquit defendant, or find him guilty of the lowest de- gree of homicide submitted with which you can reasonably reconcile the facts admitted or established, it was held that the charge did not tend to mislead the jury to believe that, if they had a reasonable doubt as to the existence of either of two grades of offense, they should convict of the lesser. Ryan v. State, 92 N. W. 271, 115 Wis. 488. Where the court Cor- rectly instructs the jury as to mur- der in the first and second degrees, and then proceeds to instruct them as to manslaughter and self-defense, and says, "if you believe beyond a reasonable doubt" that defendant kill- ed deceased under the circumstances constituting manslaughter, "you will find him guilty of that crime," the charge is not open to the objection that it requires the jury to find' be- yond a reasonable doubt that defend- ant' is guilty of manslaughter, as be- tween the crimes of murder and man- slaughter, but the evident meaning of the charge is that manslaughter must be proved beyond a reasonable doubt, or defendant acquitted on the ground of self-defense. Pitts v. State,. 29 Tex. App. 374, 16 S. W. 189. ■801 INSTRUCTIONS ON DEFENSES IN CRIMINAL CASES § 318 CHAPTER XXVI INSTRUCTIONS ON DEFENSES IN OEIMINAL OASES A. Defenses in Genebai. I 318. Necessity of instructions. 319. Disparagement of defense. 320. Application of doctrine of reasonable doubt to defenses. B. Insanity as Defense tq Ceiminal Aootjsation 321. Necessity of instructions. 322. Propriety and sufficiency of instructions in general. 323. Inability to distinguish between right and wrong. 324. Inability to refrain from criminal act. 325. Insanity from use of liquor or drugs. 326. Partial insanity. 327. Emotional insanity. 328. Presumption as to sanity and burden of proof or sufficiency of evi- dence to support defense. 329. Presumption of continuance of insanity. C. Effect op Intoxication of Accused as Bearing on Guilt ob Punishment 330. Necessity and propriety of instructions in general. 331. Drunkenness as excuse for crime. i D. Instructions on Alibi 332. Necessity of instructions. 333. Rule where issue of alibi not raised. 334. Sufficiency of evidence to authorize or require instructions on alibi. 335. Propriety and sufficiency of instructions on alibi. 336. Propriety of instructions on burden of proof. 337. Propriety and sufficiency of instructions as to time. 338. Propriety and sufficiency of instructions as to place. 339. Disparagement of defense of alibi. 340. Effect of failure to prove alibi. A. DEifBNSES i;n Genbrai, § 318. Necessity of instructions ' Where there is evidence in a criminal case reasonably raising a defensive issue, the defendant is entitled to instructions affirma- tively presenting such issue.^ Such rule applies to evidence tend- 1 Tex. Key v. State, 161 S. W. 130, Wis. Koscak v. State, 152 N. W. 72 Tex. Or. B. 129 ; Jones v. State, 181, 160 Wis. 255. 153 S. W. 310, 69 Tex. Or. R. 216; Failure to charge affirmatively Swinger v. State, 102 S. W. 114, 51 on one of two defenses. Where dr- Tex. Or. E. 397 ; Tankersley v. State, cumstantial evidence alone was relied 101 S. W. 097, 51 Tex. Or. R. 224 ; on to show that accused kJUed dece- Stanton v. State (Or. App.) 29 S. W. dent,, and accused proved an alibi, 47g. and showed that a third person com- § 319 INSTRUCTIONS TO JURIES 60,3 ing to extenuate, mitigate, or excuse the crime charged,* and if there is some evidence tending to support a defense set up, an in- struction thereon should be given on request, although such evi- dence may be of slight weight,* and the defendant may be entitled to an instruction on a theory of a defense developed by evidence inconsistent with his own testimony.* § 319. Disparagement of defense It is improper for the judge to make statements calculated to cast suspicion upon any defense which is recognized by the law as legitimate, and which the defendant is apparently making in good faith.^ § 320. Application of doctrine of reasonable doubt to defenses Kule as to defense of insanity, see post, § 328. Rule as to defense of alibi, see post, § 336. In most jurisdictions a defendant in a criminal case, who admits the act charged against him as a crime, but sets up some defense thereto, is entitled to an acquittal if the proof offered by him in support of such defense, when taken in connection with all the other evidence in the case, is sufficient to raise a reasonable doubt of his guilt, in the minds of, the jury, and the court should so charge,* and it is error to charge that, where the state has made out a p'rima facie case, the defendant must prove facts relied upon by him as a defense by a preponderance of the evidence," or to the reasonable satisfaction of the jury,* or beyond a reasonable mitted the ofEense, the failure to that if, on consideration of all the charge aflBrmatively that if another evidence, there remained a reasonable committed the offense, or if there was doubt as to whether the killing was in reasonable doubt thereof, the jury self-defense, the jury should acquit, should acquit, was erroneous, though was properly refused, since under the the court charged on reasonable doubt, plea of self-defense the burden of alibi, and circumstantial evidence, proof was on defendant, and unless Wheeler v. State, 121 S. W. 166, 56 the jury was satisfied from the evi- Tex. Cr. R. 547. dence that the plea was sustained, the 2 Kelley v. State, 185 S. W. 874, 79 defense failed ; a reasonable doubt Tex. Or. R. 402. being insufficient. Lawson v, State, 8 Ladwig V. State. 51 S. W. 390, 40 46 So. 259, 155 Ala. 44. Tex. Cr. R. 585 ; State v. Manns, 48 7 Howell v. State, 85 N. W. 289, 61 W. Va. 480, 37 S. B. 613. Neb. 391 ; Real v. State, 152 P. 808, . * State V. Baker, 172 S. W. 350. 262 12 Okl. Cr. 157 ; Cowherd v. State, Mo. 689, following State v. Bidstrup, 120 P. 1021, 7 Okl. Cr. 1; Mitchell v. 140 S. W. 904. 237 Mo. 273. State, 117 P. 650, 6 Okl. Cr. 622 ; See 6 Aszman v. State, 24 N. B. , 123, People v. Perini. 94 Oal. 573, 29 P. 123 Ind. 347, 8 L. R. A. 33. 1027. 8 People V. Bushton, 80 Cal. 160, 22 s Dent v. State, 105 Ala. 14, 17 So. P. 127; State v. Rogers. 163 P. 912, 94; Boykin v. People, 22 Colo. 496, 30 Idaho,. 259 ; State v. Crean, 43 45 P. 419 ; Appleton v. State, 171 111. Mont. 47, 114 P. 603; Brazier v. State, 473, 49 N. E. 708 ; Davis v. State, 113 100 S. W. 94, 117 Tenn. 430. P. 220, 4 Okl. Cr. 508. Contrary rule. An instruction In Missouri such an instruction Is 603 INSTRUCTIONS ON DEFENSES IN CEIMIJJAL CASES §321 doubt," it being enough to sustain a defense if by any evidence a reasonable doubt is raised in the minds of the jury of any essen- tial element of the charge against the defendant," and where the court submits the issue of self-defense the court should in some jurisdictions, instruct, on request, that the burden is on the state to show beyond a reasonable doubt that the defendant was not acting in self-defense." It is not improper, however, in some ju- risdictions, to charge in a homicide case that the burden is on the defendant to establish his plea of self-defense, if the court also charges that, to convict, the state must, on the whole case, show the guilt of the accused beyond a reasonable doubt.^^ B. Insanity as Defense to Criminai, Accusation § 321, Necessity of instructions In a criminal prosecution, in which there is some evidence to support such a plea, it is the duty of the court to instruct on the proper, where the usual Instruction as to reasonable doubt upon the whole case is given. State v. Jones, 78 Mo. 278. See State v. Hill, 69 Mo. 451. 9 Cal. People V. MiUer, 154 P. 468, 171 Cal. 649. Ind. Clark v. State. 64 N. B. 589, 159 Ind. 60. Ky. Biggs V. Commonwealth, 169 S. W. 525. 159 Ky. 836. Okl. Brown v. State, 167 P. 762, 14 Okl. Cr. 115; Smith v. State, 159 P. 668, 12 Okl. Cr. 489; McGill v. State, 129 P. 75, 8 Okl. Cr. 500. Tenn. Hamilton v. State, 37 S. W. 194. 97 Tenn. 452. Tex. Davis v. State, 175 S. W. 1073, 76 Tex. Or. EL 502; Jacobs v. State, 115 S. "W. 581, 55 Tex. Cr. K. 149 ; Steel v. State, 113 S. W. 15, 54 Tex. Cr. R. 388. Instmctions mot improper with- • in rale. An instruction, in a prose- cution for murder, that if the .lury found that a third person had, killed deceased they should acquit defend- ant, was not erroneous as requiring an affirmative finding instead of a reasonable doubt whether a third per- son killed defendant, when it was given in connection with a charge that, if the jury had a reasonable doubt whether defendant cut deceas- ed, they should acquit. Adams v. State, 93 S. W. 116, 48 Tex. Cr. R. 452. An instruction, on a trial for theft of a hors6, that if the jury be- lieve that defendant thought it was his, or if they have a reasonable, doubt on the point, they should ac- quit, does not require proof of such defense beyond a' reasonable doubt. McGowan v. State (Tex. Cr. App.) 37 S. W. 750. A charge, in a prose- cution for horse theft, that if the jury found "from the evidence, be- yond a reasonable doubt, that the horse mentioned in the indictment had been stolen, * * * and that recently thereafter the defendant was found in possession of said horse," etc., was not objectionable, as requir- ing accused to prove the account he gave of his possession beyond a rea- sonable doubt. Landreth v. State, 70 S. W. 758, 44 Tex. Cr. R. 239. 10 Zipperian v. People, 79 P. 1018, 33 Colo. 134; Lane v. State, 44 Fla. 105, 32 So. 896; State v. Lundhigh, 164 P. 690, 30 Idaho, 365; Vann v. State, 77 S. W. 813, 45 Tex. Cr. R. 434. 108 Am. St. Rep. 961. 11 State V. WilUams, 97 N. W. 992, 122 Iowa, 115. 12 State V. Jones, 60 A. 396, 71 N. J. Law, 543 ; State v. Stockman, 64 S. E. 595, 82 S. C. 388, 129 Am. St. Rep. 888. §321 . INSTRUCTIONS TO JURIES 604 subject of insanity as a defense.^* Such a charge should be given, where there is conflicting evidence as to the mental unsoundness of the accused at the time of the crime alleged, not caused by volun- tary intoxication, and which is not merely "moral insanity," or an "irresistible impulse." " The issue of the defendant's mental unsoundness at the time of the commission of the crime alleged should be submitted to the jury, although the evidence tending to show his mental inca- pacity to commit a criminal act is weak as compared with the evidence tending to show his sanity ; ^^ but, where there is no evidence tending to show the insanity of the accused, instruc- tions assuming that his mental condition is an issue in the case are properly refused.^* The mere fact that defendant frequently 18 Fla. Cochran v. State, 61 So. 187, 65 Fla. 91. Ga. Carter v. State, 58 S. B. 532, 2 Ga. App. 254. ni. People V. Penman, 110 N. B. 894, 271 111. 82. Ky. Maulding v. Commonwealth. 189 S. W. 251, 172 Ky. 370. Micb. People V. Muste. 100 N. W. 455, 137 Mich. 216. ' Okl. Snodgrass v. State, 175 P. 129, 15 Okl. Cr. 117; Litchfield t. State, 126 P. 707, 8 Okl. Cr. 164, 45 L. R. A. (N. S.) 153. Tex. Holland v. State, 192 S. W. 1070, 80 Tex. Cr. R. 637; Berry v. State, 125 S. W. 580, 58 Tex. Cr. R. 291. W. Va. State v. Alie, 96 S. B. 1011, 82 W. Va. 601. Mental incapacity cansed by dmg. Where a witness testifies that he gave defendant a certain amount of morphine, whicli failed to put him to sleep, shortly before the homicide was committed, and two physicians testify that the amount given was an overdose, whose effect would be to produce wildness and insanity until sleep should intervene, it is error to refuse to charge that the jury should acquit if they believe that defendant, at the time of the homicide, was in a state of mind that rendered him incapable of comprehending the real character of his act, and that this in- capacity was the result of an overdose of a drug he had taken. State v. Rip- py, 104 N. 0. 752, 10 S. B. 259. 1* Cochran v. State, 61 So. 187, 65 Fla. 91. 10 State V. Newman, 47 P. 881, 57 Kan. 705. 16 Ala. Johnson v. State, 53 So. 769, 169 Ala. 10. Arb, Duncan v. State, 162 S. W. 573, 110 Ark. 523. Conn. State v. Buonomo, 87 A. 977, 87 Conn. 285. Ga. Adams v. State, 63 S. B. 703, 117 Ga. 302. 111. Doyle V. People, 147 111. 394, 35 N. E. 372. Ind. T. Binyon v. United States, 76 S. W. 265, 4 Ind. T. 642. Ky. Bast V. Commonwealth, 99 S. W. 978, 124 Ky. 747 ; Bishop v. Com- monwealth, 109 Ky. 558, 60 S. W. 190 ; Buckhannon v. Commonwealth, 86 Ky. 110, 5 S. W. 358. Mo. State v. Brown, 79 S. W. 1111, 181 Mo. 192. Mont. State V. Knum, 178 P. 288, 55 Mont. 436. Nev. State v. Hartley, 22 Nev. 342, 40 P. 372, 28 L. R. A. 33. Tex. Cook V. State, 160 S. W. 465, 71 Tex. Cr. R. 532 ; Coffey v. State, 131 S. W. 216, 60 Tex. Cr. R. 73. Evidence not calling for instruc- tions on issue of insanity. In a prosecution for burglary, where the only witness as to defendant's insan- ity testified that he had examined and treated defendant after he had been brought back from the penitentiary, that he was acquainted with defend- ant's mother and faihily, that he would not say defendant was insane, but that he was never mentally very bright, that he was a degenerate mentally and morally, that many 605 INSTRUCTIONS ON DEFENSES IN CRIMINAL CASES 322 became intoxicated is not sufficient to warrant an instruction sub- mitting the question of his insanity." So an instruction on per- manent insanity is properly refused where the evidence only tends to show temporary insanity from the use of liquor or drugs/* and where the evidence as to insanity is such as to warrant the jury in not giving it much consideration failure to instruct thereon is not e^rror, in the absence of a request.^* § 322. Propriety and sufficiency of instructions in general The trial court should not disparage or ridicule the defense of insanity,** and it is not proper, in some jurisdictions, to caution the jury that the evidence in support of such a defense should be care- fully scrutinized and considered, to the end that parties charged with crime may not niake use of the plea of insanity to defeat the attainment of justice.*^ In other jurisdictions an instruction that the jury must examine the defense of insanity with great criminals were known as degenerates who were held accountable and able to distinguish right from wrong, that he did not think defendant so mental- ly Incapacitated or of such unsound mind that he would be able to plan and accomplish the burglarizing- of a store and think it was not wrong, and that he thought defendant could dis- tinguish right from wrong, refusal to give a special charge submitting the issue of insanity was not error. Mitchell V. State, 106 S. W. 124, 52 Tex. Cr. R. 37. Upon a trial for mur- der, evidence of conduct of the accus- ed towards his wife, which might be readily accounted for as the result of rage and excitement produced by knowledge of his wife's infidelity and by the free use of intoxicants, does not call for a charge on the law of insanity. McConnell v. State, 22 Tex. App. 354, 3 S. W. 699, 58 Am. Rep. 647. Merest shadoir of evidence of in- sanity. A requested instruction as to the insanity 6t the accused is prop- erly refused where there is only the merest shadow of evidence that such accused was not of sound mind, and the judge has instructed the jury that the burden of proof is on the govern- ment to prove sanity beyond a reason- able doubt, and told the jury to con- sider all the evidence, including the bearing of the prisoner and the man- ner of his own testimony, and stated the evidence relied upon by him. Bat- Ue V. United States, 28 S. Ct. 422, 209 U. S. 36, 52 L. Ed. 670, affirming judg- ment United States v. Battle (C. C. Ga.) 154 F. 540. Epileptic fits. Evidence that de- fendant was subject to epileptic fits will not justify an instruction that. If the jury believe her faculties were so impaired that she could not recognize the deceased, a police officer in uni- form, they should acquit. State v. Hayes, 16 Mo. App. 560. 17 State V. Brown, 79 S. W. 1111, 181 Mo. 192. 18 Kinslow V. State, 109 S. W. 524, 85 Ark. 514. 1? Gate V. State, 114 N. W. 942, 80 Neb. 611. 20 People V. Holmes, 69 N. W. 501, 111 Mich. 364; State v. Crowe, 102 P. 579, 39 Mont. 174, 18 Ann. Gas. 643 ; State V. Barry, 92 N. W. 809, 11 N. D. 428 ; Sharkey v. State, 2 O. C. D. 443, 4 Ohio Gir. Gt. R. 101 ; Gommon- wealth V. Tompkins, 108 A. 350, 265 Pa. 97. 21 State V. Shuff, 72 P. 664, 9 Idaho, 115; Aszman v. State, 123 Ind. 347, 24 N. E. 123, 8 I>. R. A. 33, disapprov- ing Sawyer v. State, 35 Ind. 80. In Indiana earlier cases (Sawyer v. State, 35 Ind. 80; Sanders v. State, 94 Ind. 147) not in harmony with the rule of the text have been disap- proved. § 322 INSTRUCTIONS TO JURIES 606 care lest an ingenious counterfeit of mental disease shall furnish immunity to the guilty has been sustained,** or at least held not reversible error.** Whether a plea of insanity is consistent with a plea of self-defense in a homicide case is a question for the jury, and the court should not tell them that they are not inconsistent.*' The propriety of instructions on what is the legal test of ac- countability for the act charged as a criminal offense depends upon the rule prevailing in the particular jurisdiction.*^ Instructions on insanity should be as brief and simple as it is possible to make them. Even if it were possible to do so, the court should not in- struct on every phase or manifestation of insanity.*® Care should be observed to state the rule governing accounta- bility to the law rather than to attempt to define insanity, or any of the recognized forms of mental disease, and the instructions should be framed in plain and comprehensive terms, consistent with approved scientific determinations,*' and in some jurisdic- tions instructions on insanity as a defense should be restricted to a definition of insanity as any weakness or defect of the mind rendering it incapable of entertaining, in the particular instance, the criminal intent, supplemented by the comment that criminal responsibility is to be determined solely by the capacity of the defendant to conceive and entertain the intent to commit the par- ticular .crime charged.** The presence of intelligence is not an absolute test of sanity, and an instruction is erroneous which sets up the power to delib- erate, premeditate, and design as such a test.** In some jurisdic- tions the rule is that it is purely a question of fact whether there is a mental disease of a character that will excuse the commission of the act alleged as an offense, and that no legal rules or tests should be declared by the court as a guide to the jury in determin- ing whether or not the defense of insanity in any given case shall avail the accused.*" 2 2Braham v. State, 38 So. 919, 143 87 Conn. 5; Starke v. State, 37 So. Ala. 28 ; People v. Bundy, 145 P. 537, 850, 49 Fla. 41 ; State v. Porter, 111 168 Cal. 777; People v. Donlan, 67 S. W. 529, 213 Mo. 43, 127 Am. St. P. 761, 135 Cal. 489; People v. Allen- Rep. 589. der, 48 P. 1014, 117 Cal- 81. See 2 6 state v. Keerl, 75 P. 362, 29 United States v. Chisolm (O. C. Ala.) j^ont. 508, 101 Am. St. Rep. 579. 14Q "FT 9R4 23 People V. Stein, 137 P. 271, 23 'l^'^^^^ ^- ^^"^^^^ ^^S P. 148, Cal. App. 108; People v. Nihell, 77 ''■^„„ ^f' Z^**- _ , P. 916, 144 Cal. 200. '' State v. Keerl, 75 P. 362, 29 2* Tarbrough v. State, 162 P. 678, Mont. 508, 101 Am. St. Rep. 579. 13 Okl. Cr. 140. 29 Bennett v. State, 57 "Wis. 69, 14 Contra, State v. Wade, 61 S. W. N. W. 912, 46 Am. Rep. 26. 800, 161 Mo. 441. 30 state v. Jones, 50 N. H. 369 9 2 5 People V. Barthleman, 52 P. 112, Am. Rep. 242; State v Pike 49 N 120 Cal. 7 ; State v. Saxon, 86 A. 590: h. 399, 6 Am. Rep. 533 607 INSTEUCTIONS ON DEFENSES IN CRIMINAL CASES 323 Where the statutory definition of "insane persons"' contains some words of indefinite significance, it is proper for the court to refuse to submit such definition to the jury as being likely to confuse them.*^ § 323. Inability to distinguish between right and wrong In most jurisdictions it is proper and sufficient to charge that to establish the defense of insanity it must be proved that at the time, of committing the act in question the defendant was labor- ing under such a defect of reason as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know it was wrong.** In these jurisdictions it is proper to 31 Goodwin v. State, 96 Ind. 550. 82 Davis V. State, 32 So. 822, 44 Fla. 32 ; State v. Murray, 11 Or. 413, 5 P. 55 ; Tubb v. State, 117 S. W. 858, 55 Tex. Or. R. 606 ; Giebel v. State, 28 Tex. App. 151, 12 S. W. 591. ninstrations of sufficient iu- stmctions on sach. defense. A ctiarge that, if one have Indulged his passions or blunted his moral sense so that he can commit crime without remorse, and fails to see its heinous- ness as persons of purer morals and inore restrained passions see it, this does not make him insane. If he have sufficient capacity to discern right and wrong as to the particular act in question, if he has knowledge and consciousness that the act he is doing is wrong, and would deserve punishment, he is of sound mind and memory, so as to be subject to punish- ment. Loyd V. State, 45 Ga. 57. An instruction that a person in posses- sion of a sound mind who commits an act under the impulse of passion or revenge, which may temporarily de- throne reason, or for the time being control his will, cannot be shielded from the consequences of his act, was not error for failure to assume that a person might become instantly in- sane so as to be unable to distinguish the character of his act, or right from wrong. State v. Fleming, 106 P. 305, 17 Idaho, 471. Upon a trial for mur- der, that insanity is "such a pervert- ed and deranged condition of the men- tal and moral faculties as to render one incapable of distinguishing be- tween right and wrong, making him unconscious, at times, of the act he is ' about to commit." State v. Rede- meier, 8 Mo. App, 1. On a trial for malicious shooting, where the defense was insanity, after correct instruc- tions on the law of insanity, an in- struction that "the law requires some- thing more than occasional oddity or hypochondria to exempt the perpetra- tor of an offense from its punishment" is not erroneous. Hawe v. State, 11 Neb. 537, 10 N. W. 452, 38 Am. Rep. 375. An instruction that, if at the time defendant killed his wife, he was insane, laboring under such a defect of reason and derangement of mind as not to know and comprehend the nature, quality, and consequences of the act he was doing, and unable to distinguish between right and wrong, he must be acquitted, and the insanity must be proved, beyond a reasonable doubt, to be siich that at the time he labored under a diseased state of mind, so excessive as to overwhelm his reason, conscience, and judgment, is sufficient, where there is evidence of insanity as the result of delirium tremens. State v. Zorn, 22 Or. 591, 30 P. 317. * Illustrations of defective in- structions on this defense. An in- struction to the effect that, if the jury find that the defendant .was insane at the time of committing a crime, they should find him not guilty, without regard to the degree of insanity. People V. Best, 39 Cal. 690. A charge that, "if you find that the defendant is subject to fits of insanity, he may not inaptly be called an insane man." Fogarty v. State, 80 Ga. 450, 5 S. E. 782. A charge that, "though a total §324 INSTRUCTIONS TO JURIES 60S instruct that, if at the time of committing the alleged criminal act the defendant was capable of judging whether the act was right or wrong, he is responsible for it, but that, if he was unable to distinguish between right and wrong with respect to such act, he should be acquitted.** So a correct statement of the law on this defense in some jurisdictions is contained in an instruction that insanity is such a perverted condition of the mental and moral facul- ties as renders a person incapable of distinguishing between right and wrong, or unconscious at the time of the nature of the act he is committing.** § 324. Inability to refrain from criming act In some jurisdictions it is proper to instruct that, to excuse de- fendant on the ground of insanity, the jury must find that at the time of the commission of the alleged offense he was without sufficient reason to know what he was doing, or had not sufficient reason to know right from wrong, or that, as a resUlt of mental unsoundness he had not then sufficient will power to govern his actions by reason of an insane impulse, which he could not re- sist or control,*^ and, in some jurisdictions, where the evidence want of responsibility on account of insanity be not shown, yet If the pris- oner's mind was so far afiEected as to render him incapable of a deliberate, premeditated assault with intent to murder, he cannot be convicted." Fogarty v. State, 80 Ga. 450, 5 S. E. 782. An instruction that the fact that ancestors of a person had been Insane did not of itself prove him insane, and that, in the absence of preponderating evidence of insanity at the time of the killing, it could not be justified on that plea. State v. Simms, 68 Mo. 305. An instruction that if the jury believed that at the time of the kill- ing defendant was capable of know- ing that, if he shot deceased not in self-defense, he was committing an offense against the law of the land, it will not matter what the jury believe was the moral conception of defend- ant of the act at the time, is errone- ous, as declaring that one not having the capacity to distinguish between right and wrong is criminally re- sponsible. Kearney v. State, 68 Miss. 233, 8 So. 292. An instruction asked by defendant that "there are but two classes of persons under the law, * * * those of sound and unsound mind, and a person of unsound mind cannot be held responsible for crime ; * * * the law makes no distinctipa in degrees of unsoundness of mind," without any explanation of what con- stitutes insanity, is misleading, and properly refused. Grubb v. State, 117 Ind. 277, 20 N. E. 725. It was proper, in a murder case, to refuse to charge that "if, in consequence of some dis- ease, the defendant had not suflBclent use of his reason to control the pas- sions which prompted the act," the jury must acquit, since the request excluded the question as to capacity to distinguish between right and wrong. People v. Mills, 98 N. T. 176. as Bothwell v. State, 99 N. W. 669, 71 Neb. 747; Hart v. State, 14 Neb. 572, 16 N. W. 905 ; Territory v. Cat- ton, 5 Utah, 451, 16 P. 902. 3* Brown v. State. (Ga. App.) 107 S. E. 173 ; Oborn v. State, 126 N. W. 737, 143 Wis. 249. 35 Thompson v. Commonwealth, 159 S. "W. 829, 155 Ky. 333. Beqnirement that inability to distinguisli lietweeii right and wrong and Inability to refrain from doing criminal act shonld exist concurrently. In a criminal 609 INSTRUCTIONS ON DEFENSES IN CRIMINAL CASES § 324 tends to show partial insanity or paranoia, instructions on this subject which fail to include the element of insane inability to re- sist wrong are defective ; ^^ and where the only rational infer- ence from the evidence is that the defendant, at the time of the com'mission of the alleged criminal act, was suffering from mental disease which was the efficient cause of the act, the court should charge, on request, in addition to an instruction that if one has reason sufificient to distinguish between right and wrong in rela- tion to a particular act about to be committed he is criminally re- sponsible, the exception to such general rule that one must have intelligence enough to form the criminal intent, and that if his mental faculties are so deficient that he has no will, no conscience or controlling mental power, or if through the overwhelming power of mental disease the intellectual power is for the time ob- literated, and such mental disease is the efficient cause of the act alleged to constitute the criminal offense, he is not to be held le- gally responsible.*' In some jurisdictions, an instruction which submits to the jury both the right and wrong test, and the test of irresistible impulse, is not objectionable, because it does not submit the question whether the accused had sufficient mental capacity to know right from wrong with reference to the specific offense charged.** A charge on irresistible impulse is not required where the only evi- dence of such impulse is the testimony of the defendant, which shows that his act must have been the result of unconsciousness or delirium, since the doctrine of irresistible impulse implies knowledge of right and wrong in some degree.** In jurisdictions where the doctrine of irresistible impulse ob- tains, an instruction that, if defendant was in consequence of his insanity brought up to such a "frenzy" as rendered him incapable prosecution, where there was a ques- titled to acquittal if any one of such tion as to the sanity of accused at the conditions existed. State v. Kelley, time he committed the act, and the 52 A. 434, 74 Vt. 278. instructions were on the theory that a as Hankins v. State, 201 S. W. 832, person may be unable to refrain frpm 133 Ark. 38, L. R. A. 1913D, 784 ; Bell committing an act though knowing it v. State, 180 S. W. 186, 120 Ark. 530; to be wrong, an instruction to acquit People v. Lowhone, 126 N. E. 620, 292 if the jury found that, at the time he ill. 32. committed. the act, defendant was not st Wilson v. State, 70 S. E. 1128, 9 able to distinguish right from wrong, q^. App. 274. and had no understanding of the Comuare Wasuvtv v State 80 On character and consequences of his act 450 Ts E 782 and power of will to abstain from it, „' ^' ' " „ ,„ ..^„ was erroneous because requiring the '4,^^°^^?°" I; Commonwealth, 159 three mental conditions to concur- ". W. 829, 155 Ky. SSd. rently exist, when under the theory 8» State v. Peel, 59 P. 169, 23 Mont, of the instructions defendant was en- 358, 75 Am. St. Rep. 529. Inst.to j ubies— 39 § 324 ^ INSTRUCTIONS TO JURIES 610 and unable to control his movements, he would not be legally- responsible for his acts, has been held misleading, since there are conditions of insanity depriving the will of its normal governing power which do not amount to "frenzy" in the ordinary accepta- tion of the term.** On the other hand, an instruction which omits as an essential condition to irresponsibility because of inability to refrain from doing a criminal act the fact that such inability has resulted solely from mental disease is defective,"*^ and it is prdper to call the at- tention of the jury to the distinction between an act committed by reason of insanity which has destroyed will power and an act committed as a result of uncontrolled passion not resulting from disease,** and to refuse instructions which do not distinguish be- tween irresistible impulse arising from insanity and from passion or revenge.** In many jurisdictions the doctrine of inability to refrain from committing a particular act, although recognizing its criminality, as a test of insanity, is not accepted, and in such jurisdictions it is, of course, proper to refuse an instruction' embodying such test.** § 325. Insanity from use of liquor or drugs The decisions recognize a distinction between temporar}' in- sanity from the recent voluntary use of intoxicants, drunkenness produced from that source, and delirium tremens, or the settled 40 Territory v. Kennedy, 110 P. 854, of Insanity, wrought up to a frenzy, 15 N. M. 556. rendering him incapable of control- Contra, Williams V. State, 50 Axk. Img Ws actions, and that, if reason 511 9 S W 5 ^^s dethroned temporarily by pus- " Smith 'v.' State, 62 So. 184, 182 sion defendant could not thereby be ., qo shielded from the consequences of his ^^^- "^^^ „ ^, crime. Williams v. State, 50 Ark. 511, 42 Commonwealth v. Van Horn, 41 9 g -^v. 5. Accused cannot complain A. 469, 188 Pa. 143; Flanders v. of a charge that "frenzy arising sole- State, 156 P. 39, 24 Wyo. 81, rehearing , ly from the passions of anger and denied 156 P. 1121, 24 Wyo. 81. jealousy, no matter how furious, Is Instructions on irresistible im- not insanity." Guetig v. State, 66 pnlse ield proper. An Instruction Ind. 94, 32 Am. Rep. 99. that "mental unsoundness' must be 4s Boiling v. State, 54 Ark. 588, 16 the result of a disease, and not the re- S. W. 658 ; State v. Hassing, 118 P. suit of his haying allowed his pas- 195, 60 Or. 81; Commonwealth v. sions to run until they have become Eckerd, 34 A. 305, 174 Pa. 137. uncontrollable." People v. Durfee, 62 a People v. Barthleman, 52 P. 112, Mich. 487, 29 N. W. 109. A charge 120 Cal. 7 ; State v. Mowry, 37 Kan. that, for insanity to excuse homicide, 369, 15 P. 282; State v. Knight, 50 defendant should have been unable to A. 276, 95 Me. 467, 55 L. R. A. 373 ; distinguish, in respect of the crime. Walker v. People, 26 Hun (N. T.) 67. between right and wrong, or that, If See Walker v. People, 88 N. Y. 81 ; conscious of the act and its coiise- Snodgrass v. State, 175 P. 129, 15 quences, he must have been, by reason Okl. Cr. 117. 611 INSTEDCTIONS ON DEFENSES IN CRIMINAL CASES . § 326 insanity which is the result of long-continued use of such intoxi- cants, the latter phase of insanity being a complete defense to an accusation of crime, and when the evidence in the case tends to show such a fixed or settled insanity the court should specially charge thereon; a charge on insanity in the usual form not being sufficient.*^ Where the statute allows temporary insanity induced by the recent voluntary use of intoxicating liquor to be shown in mitiga- tion of the penalty for the offense charged, it is the imperative duty of the court, where the evidence furnishes a sufficient predi- cate, so to instruct;** and where the evidence presents the issue,' the court should instruct on insanity from the use of narcotics, although an instruction on intoxication produced by ardent spir- its,** or a charge on the general issue of insanity,** has been given. § 326. Partial insanity In some jurisdictions it is held that while the trial court may, if it sees fit, recognize monomania, or so-called partial insanity, as distinguished from general insanity, when instructing the jury in a criminal case involving that form of mental derangement as a defense, it is not imperative- that it should do so, and that if the proper tests of criminal responsibility are stated the substantial rights of the accused are sufficiently protected.*® In other juris- dictions the rule is that, where evidence is introduced tending'^o support the defense of partial insanity, the charge should specifi- cally treat thereof, and not stop with merely submitting the usual test of ability to distinguish between right' and wrong. ^^ It is proper to charge with respect to such a defense that, when partial insanity or insane delusion -or hallucination is relied on to avert 45 Duke V. State, 134 S. "W. 705, 61 affected by habits of intoxication. Tex Cr. R. 441; Erwin v. State, 10 "Wagner v. State, 116 Ind. 181, 18 N. Tex. App. 700. E. 833. Instrnctions held properly giv- 46 Lawrence v. State, 157 S. W. 480, en. A charge that mental incapacity 70 Tex. Cr. R. 506 ; Id., 143 S. W. produced by voluntary intoxication, 636, 65 Tex. Cr. R. 93 ; Miller v. State, temporarily existing when the offense 105 S. W. 502, 52 Tex. Cr. R. 72 ; Hler- was committed. Is no excuse for holzer v. State, 83 S. W. 836, 47 Tex. crime, but where the habit of intoxi- Cr. R. 199 ; Edwards v. State (Tex. cation, though voluntary, has so af- Cr. App.) 54 S. W. 589. fected defendant's mind that he was ^, q^.^^, ^_ ^^^^^^ 80 g ^ 535, 47 incapable at the time of acting from ^^^ ^r. R. 128, 122 Am. St. Rep. 682. motive, or distinguishing right from Tj„^t„« ^ a+of.^ 01 a w ^,^0 ao wrong, he will not be held accounta- ^ *' burton J- State, 81 S. W. 742, 46 ble for an act committed while in ^^^- *~'^- •"• '*'^*^- such condition, was properly given ^" State v. Moore, 102 P. 475, 80 where there was evidence that, Kan. 232. though defendant was sober when the =0 Looney v. State, 10 Tex. App. offense was committed, his mind was 520, 38 Am. Rep. 646. §327 INSTRUCTIONS TO JUEIES 612 criminal responsibility, it must be made to appear that the crime charged was the offspring of such insanity, and not the result of sane reasoning and natural motives.®^ § 327. Emotional insanity It is proper to charge that the law rejects the doctrine of emo- tional insanity, which begins on the eve of the criminal act and leaves off when it is committed,^* and a refusal to charge the jury on emotional insanity is not error, where the insanity, if any ex- Bi People V. Griffith, 80 P. 68, 146 Cal. 339. Instructions on partial insanity held proper. An instruction, in a trial for murder, that if the prisoner, though he labored under partial in- sanity or delusion, understood the na- ture of his act, and knew it was wrong, and had mental power suffi- cient to apply that knowledge to his own case, and knew that if he did the- act, he wotild do wrong and receive punishment, and that, if the act was contrary to the dictates of justice and right and injurious to others, he would be responsible, and that the law is that, whether insanity be gen- eral or partial, the degree must be so great as to have taken from accused the freedom of moral action. Com- monwealth V. Lewis, 71 A. 18, 222 Pa. 302. An instruction that a delusion must be of such a character that, if things were as the defendant imagin- ed them to be, they would justify the act springing from the delusion. Thurman v. State, 32 Neb. 224, 49 N. W. 338. A charge.that, "although the accused may be laboring under par- tial insanity, if he still understands the nature and character of his act and its consequences, and has a knowledge that it is wrong and crim- inal, and a mental power sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong and receive punish- ment, and possess withal a will suffi- cient to restrain the impulse that may arise from a diseased mind, such par- tial insanity is not sufficient to ex- empt him from responsibility to the law for his crime." Dejamette v. Commonwealth, 75 Va. 867. On the trial of an indictment for murder, where insanity is pleaded, an instruc- tion to the jury that "the alleged in- sanity and the alleged crime must be connected, the one with the other, and the latter be the offspring of the former, in order to have the effect of rightfully declaring one irresponsible for his acts," is correct, where there is no evidence tending to show that the defendant was insane on all sub- jects, or was homicidally insane. State V. Hockett, 70 Iowa, 442, 30 N. W. 742. Where the defense was general insanity, and there was no evidence of special dementia, it was proper to chaj:ge that insanity is a to- tal or partial impairment of the intel- lect to such an extent that the person affected does not know the difference between right and wrong as to the act he is committing. Carr v. State, 96 Ga. 284, 22 S. E. 570. Use of word "delusion." In an instruction, the use of the word "de- lusion" is not ground for reversal, where the evidence, and the connec- tion in which it was used, show clear- ly that by it was intended insanity on a particular suhject. People v. Schmitt, 106 Cal. 48, 39 P. 204. Instructions held misleading, A charge to the jury that "if they be- lieve from the evidence that the de- fendant committed the crime 'in a fit of mania,' or 'while laboring under an Insane delusion,' defendant is not responsible, and they must acQult," tends to mislead. Gunter v. State, 83 Ala. 96, 3 So. 600. 5 2 People V. Kernaghan, 72 Cal. 609, 14 P. 566; Genz v. State, 58 N. J. Law, 482, 34 A. 816. 613 INSTRUCTIONS ON DEFENSES IN CRIMINAL CASES § 328 isted, was simply such as rendered the accused incapable of know- ing that his acts in question were wrong.^^ § 328. Presumption as to sanity and burden of proof or suffi- ciency of evidence to support defense The burden of overthrowing the presumption of sanity and of showing insanity is upon the person who alleges it; but, if evi- dence is given tending to establish insanity, then the general ques- tion is presented to the court and jury whether the alleged crim- inal act was committed by a person responsible for his acts, and upon this question the presumption of sanity and the evidence are all to be considered, the prosecutor holding the affirmative, and if a reasonable doubt exists as to whether the prisoner is sane or not, he is entitled to the benefit of the doubt and to an acquit- tal. This principle may be stated in a variety of language. There is no rigid rule prescribing the particular terms to be employed if the substance of the principle is preserved.^ It is proper to charge that the law presumes a man to be sane,^ where appropriate instructions are given with respect to the burden of proof in case evidence is introduced tending to show insanity,^ and it is proper to refuse to charge that the state must affirmatively establish as part of its case that the defendant was Instmctious held proper. 5 4 Brotherton v. People, 75 N. Y. Where, on a trial for murder, defend- 159. ant requested a charge that "insanity =5 State v. Clevenger, 56 S. W. 1078, produced by jealousy or anger, if it 156 Mo. 190. incapacitates the subject from know- Instructions held proper witbin ing right from wrong, would be a de- rule. An instruction that the law fense," it was held that the court, presumes every man sane until the on assenting to t)ie request, proper- contrary is shown, and that before de- ly charged that, "if there is any such fendant could be excused of a homl- thing as insanity produced by jeal- cide for insanity the jury must be- ousy or revenge or wrath, * * * lieve from the evidence that defend- if there is any genuine insanity pro- ant at the time of the killing was duced by any cause, then, so far as without sufficient reason to know affecting the prisoner, it is the same what he was doing, or that, as the as any other kind of insanity. The result of mental unsoundness, he had heat of passion, and feeling produced not then sufficient will power to gov- by motives of anger, hatred, or re- em his action by reason of some tn- venge, is not insanity. The law holds sane impulse which he could not re- the doer of the act, under such con- sist or control, was not objectionable ditiohs, responsible for the crime, be- as placing the burden of proof of in- cause a large share of homicides com- sanity on accused. Mathley v. Com- mitted are occasioned by just such monwealth, 86 S. W. 988, 120 Ky, motives as these." People v. Foy, 138 389, 27 Ky. Law Rep. 785. N. Y. 664, 34 N. B. 396. =» Shellenberger v. State, 156 N. W. 6 3 Hurst V. State, 46 S. W. 635, 40 777, 99 Neb. 370; Massengale v. State, Tex. Cr. B. 378. 24 Tex. App. 181, 6 S. W. 35. § 328 INSTRUCTIONS TO JURIES 614 and is sane.®" Where there is evidence in support of such a de- fense, the accused is entitled to an instruction that positive or di- rect testimony is not required to establish insanity, and that it is not necessary to make out such defense beyond a reasonable doubt.^ In some jurisdictions it is proper to charge that the burden is upon the accused to establish a defense of insanity by a prepon- derance of the evidence,^® and in such jurisdictions it is not im- proper to instruct that the defendant must prove such insanity to the satisfaction, or the reasonable satisfaction, of the jury,** or that ,it must be clearly proved,®^ or must be proved to a reasonable cer- tainty, if the jury are distinctly informed that a preponderance of the evidence is all that is requisite to produce such certainty,®^ and it is proper to refuse an instruction requiring an acquittal of the defendant if the evidence leaves in the minds of the jury any reasonable doubt of his sanity.** On the other hand, it is proper to instruct that, while the burden of proof is on the accused to 57 People V. Garbutt, 17 Mich. 9, 97 Am. Dec. 162. 58 State V. Porter, 111 S. W. 529, 213 Mo. 43, 127 Am. St. Rep. 589. _ Instructions held proper. An in- struction that "in order to establish insanity, it is not necessary that the proofs shall be direct and positive, but it may be shown by such facts and circumstances as convince the mind of its existence the same as any other fact ; but, when the claim set up as a defense is unusual, unnatural, and out of the ordinary course of affairs, you are not required to take the same for granted, upon slight evi- dence, nor should you so find, except upon evidence of a reliable character, and which satisfies you that the de- fense has been made out." State v. Hockett, 70 Iowa, 442, 80 N. W. 742. 5 9 State V. Thiele, 94 N. W. 256, 119 Iowa, 659; State v. Novak, 79 K. W. 465, 109 Iowa, 717; Clawson v. State, 36 A. 886, 59 N. J. Law, 434. Instructions held proper Tirithin rule. In prosecution for selling in- toxicating liquor, instruction that to establish defense of insanity accused must show by preponderance of evi- dence that at time of sale he was in- sane to such extent as to render him , incapable of distinguishing right froti wrong in respect to sale of liquor, and that the mere fact that he was drunk would not excuse him, was not erro- neous. Carty v. State, 204 S. W. 207, 135 Ark. 169. 00 State V. Lyons, 37 So. 890, 113 La. 959; State v. Palmer, 61 S. W. 651, 161 Mo. 152 ; State v. Duestrow, 137 Mo. 44, 38 S. W. 554, 39 S. W.- 266 ; Hite v. Commonwealth, 31 S. E. 895, 96 Va. 489. Requirement that jury "must be satisfied." An instruction on trial for murder, where the defense is in- sanity, that the jury "must be satis- fied" that the defendant was insane when he committed the act, is proper, as calling the attention to the distinc- tion between the degree of proof re- quired of the prisoner on that point, and the requirement that the state should prove the prisoner's guilt be- yond a reasonable doubt. Common- wealth V. Kilpatrick, 53 A. 774, 204 Pa. 218. 01 Smith V. State, 19 Tex. App. 95. «2 Minder v. State, 39 S. E. 284, 113 Ga. 772, affirmed 22 S. Ct. 224, 183 U. S. 559, 46 L. Ed. 328. 3 James v. State, 69 So. 569, 193 Ala. 55, Ann. Cas. 1918B, 119: Porter V. State, 37 So. 81, 140 Ala. 87 ; State V. Soper, 49 S. "W. 1007, 148 Mo. 217 ; State V. Overton, 88 A. 689, 85 N. J. Law, 287; State v. Herron, 71 A. 274, 77 N. J. Law, 523. 615 INSTRUCTIONS ON DEFENSES IN CEIMINAL CASES § 32S show that he was insane at the time of the commission of the acts charged against him as an offense, he cannot be convicted if the jury have a reasonable doubt of his sanity.^ An instruction is erroneous which requires an accused to es- tablish a defense of insanity beyond a reasonable doubt,*^ or which requires more than a preponderance of the evidence to sustain such a plea,*'^ and where an instruction is given that the burden is on the defendant to cleairly prove such a defense by, a prepon- derance of the evidence the court should explain that this does not mean that he must prove his insanity beyond a reasonable doubt.*' In some jurisdictions it is error to charge that such a defense must be made out by a preponderance of the evidence,** it being sufficient, as heretofore stated, to entitle the defendant to an ac- quittal, if upon the whole evidence the jury have a reasonable doubt of the sanity of the defendant or of his mental competency to distinguish between right and wrong and to understand the nature of the act charged at the time of its commission,*' and iti- structions are objectionable which do not clearly state this rule to the jury,'* or which deprive the accused of the benefit of. any 8* Matheson v. United States, 33 S. Ct. 355, 227 U. S. 540, 57 L. Ed. 631. 85 Smith V. State, 62 So. 184, 182 Ala. 38. 86 People V. Wells, 78 P. 470, 145 Oal. 138 ; Keleh v. State, 45 N. E. 6, 55 Ohio St. 146, 39 L. R. A. 737, 60 Am. St. Kep. 680; Commonwealth v. Lee, 75 A. 411, 226 Pa. 283. See Peo- ple V. Zentgraf (Oal. App.) 193 P. 274. 87 Stanfleld v. State, 94 S. W. 1057, 50 Tex. Or. E. 69; McCuUough v. State, 94 S. W. 1056, 50 Tex. Cr. R. 132. 88 German v. United States (O. C. A. Ky.) 120 F. 666, 57 0. C. A. 128; State V. Shuff, 72 P. 664, 9 Idaho, 115. Instructions not improper ivith- in rnle. Where, in a prosecution for homicide, the court charged that a complete purpose or design to kill must be shown, and that the burden of proof was on the commonwealth to satisfy the jury beyond a reasonable doubt that defendant was legally re- sponsible at the time, or was sane, and that in order to constitute a crime a person must have intelligence and capacity enough to have a crim- inal intent and purpose, and if his reason and mental powers are either so deficient that he has no will, no conscience or controlling mental pow- er, or if, through the overwhelming evidence of mental disease, his intel- lectual power is for the time obliter- ated, he is not punishable for crim- inal acts, a subsequent instruction re- quiring that it must be proved to the satisfaction of the jury that the mind of accused was in a. diseased and un- sound state at the time of the killing, etc., was not subject to exception as, placing on defendant the burden of proving by a preponderance of the. evidence that he was mentally irre- sponsible. Commonwealth v. John- son, 74 N. E. 939, 188 Mass. 382. 6 8 State V. Shufe, 72 P. 664, 9 Idaho, 115. 70 State V. Crowe, 102 P. 579, 39 Mont. 174, 18 Ann. Cas, 643; Eevoir V. State, 82 Wis. 295, 52 N. W. 84. Reasonable doubt. The instruc- tion that it is for the jury to say whether the evidence as a whole cori- vinces them of defendant's insanity, or raises in their minds a reasonable doubt as to his insanity, is objection- able because of its alternative form; § 329 INSTRUCTIONS TO JURIES 616 evidence which merely creates a reasonable doubt as "to his san- ity."^ An instruction on the capacity of the defendant to commit the crime alleged should not restrict the jury to evidence which relates to the commission of the offense and subsequent events.'* § 329. Presumption of continuance of insanity In order to justify an instruction that, if the defendant has shown that he was insane at any time before the commission of the alleged offense, the jury will presume that he was insane at the time of the act alleged to constitute such offense, there must be some evidence tending to show his general insanity, as dis- tinguished from mere temporary aberration,'* and it is proper to instruct that, if the defendant is shown to have been permanently insane before the commission of the crime charged, the presump- tion would be that such insanity continued and existed at the time of the offense, but that hy "permanently insane" is meant insanity not due to a temporary cause, such as delirium tremens, fever, or the like.'* C. Effect of Intoxication oif Accused as Bearing on Guilt or Punishment § 330. Necessity and propriety of instructions in general Where there is evidence that an act for which one is criminally prosecuted was committed by him while intoxicated, it is proper the only matter for the jury's deter- minds of the jury. People v. Nino, mination being whether the evidence 149 N. Y. 317, 43 N. E. 858. as a whole raises a reasonable doubt ''^ Bell v. State, 91 Ga. 15, 16 S. B. of defendant's sanity. State v. Orowe, 207. 102 P. 579, 39 Mont. 174, 18 Ann. Oas. " People V. Francis, 38 Cal. 183. 643. Instructions held sufficient on 71 Pribble v. People, 112 P. 220, 49 presumption of continuance of in- Colo. 210. sanity, A charge that insanity of a Instructions held improper permanent nature, when once shown urithin rule. Where the sole defense to exist, is presumed to continue until was insanity, an instruction that, to the contrary appears, but, where de- establish a defense on the ground of lirium tremens is relied on, the de- insanity, it must be clearly proved lirium must exist when the act was that, at the time of committing the committed, as this is a mere transient act, the party accused was laboring derangement of the mind, and there under a defect of reason from disease is no presumption of its • recurrence of the mind, is erroneous, in that it is from antecedent fits, is correct ; nor calculated to mislead the jury as to is it rendered inapplicable by medical the evidence necessary to put the bur- testimony that delirium tremens den of proof as to sanity on the prose- weakens the mind. Wagner v. State, cution, and as to the effect of a rea- 116 Ind. 181, 18 N. B. 833. sonable doubt, regarding defendant's '* Kellogg v. United States (C. C. sanity, which may be created in the A. Tenn.) 103 F. 200, 43 0. C..A. 179. 617 INSTRUCTIONS ON DEFENSES IN CRIMINAL CASES 330 to instruct.'^ and the court should instruGt,™ on the law as to drunkenness, and that such intoxication is a matter to be consid- ered by the jury as bearing upon the state of the defendant's mind, and therefore as evidence upon the question of his intent;'" and while it is held in one jurisdiction that it is seldom, if ever, the duty of the court to go further and instruct that the jury may, from the intoxication alone, infer the absence of any intent to commit the specific offense charged and the consequent innocence of the defendant,'* and in another jurisdiction it has been held that the fact of drunkenness should not be singled out from the other evidence bearing on intent and malice," the weight of authority supports the rule that in a proper case the court may be required to instruct that if such intoxication was of such a character as to render the defendant incapable of forming an intent to commit the crime alleged he should be acquitted.*" If there was intoxication 7 5 Ark. White v. State, 86 S. W. 296, 174 Ark. 491. HI. Bleich v. People, 81 N. E. 36, 227 111. 80. Mo. State v. Murray, 193 S. W. 830. Or. State V. Morris, 163 P. 567, 83 Or. 429. Pa. Commonwealth v. Ault, 10 Pa. Super. Ct. 651. Tex. Upehurch v. State (Cr. App.) 39 S. W. 371. 7 6 People V. Van Zandt, 120 N. E. 725, 224 N. Y. 354. 7 7 Ala. Chatham v. State, 92 Ala. 47, 9 So. 607. Cal. People v. Hill, 55 P. 692, 123 Cal. 47. Kan. State v. White, 14 Kan. 538. Ky. Hayes v. Commopwealth, 188 S. W. 415, 171 Ky. 291. N. Y. People v. Mills, 3 N. Y, Cr. R. 184; Rodgers v. People, 15 How. Vt. State V. Turley, 88 A. 562, 87 Vty 163. See rNiehols v. State, 8 Ohio St. 435. Instructions held sufficient on question of intent. In a prosecu- tion for assault with a dangerous weapon, the.^eourt properly instruct- ed the jury on the law of intoxication In the language of the statute, and that it was' for the jury to determine whether defendant's mind was in such condition that he knew right from wrong or the probable conse- quences or result of his act. State V. Kapelino, 108 N. W. 335, 20 S. D. 591. An instruction that while vol- untary drunkenness, of itself, cannot avail as a defense to a charge of murder in the first degree, yet it should be considered on the question of whether defendant committed the act with deliberation and premedita- tion, in connection with all the other facts, in determining the degree of guilt, properly covers the question of intent. State v. Zorn, 22 Or. 591, 30 P. 317. 7 8 State V. White, 14 Kan. 538. 7 9 Nichols V. Commonwealth, 11 Bush. (Ky.) 575. 80 Ala. Granberry v. State, 62 So. 52, 182 Ala. 4. Ark. Chowning v. State, 121 S. W. 735, 91 Ark. 503, 18 Ann. Cas. 529. Fla. Garner v. State, 9 So. 835, 28 Fla. 113, 29 Am. St. Rep. 232. 111. , People V. Wright, 123 N. E. 64, 287 111. 580. Iowa. State v. StefCens, 89 N. W. 974, 116 Iowa, 227 ; State v. Desmond, 80 N. W. 214, 109 Iowa, 72. Neb. Kraus v. State, 169 N. W. 3, 102 Neb. 690. N. Y. Rogers v. People, 3 Parker, Cr. E. 632. ' See State v. Pasnau, 92 N. W. 682, 118 Iowa, 501; People v. Haley, 12 N. W. 671, 48 Mich. 495. Insti'uctions insufficient within rule. On a trial for shooting with § 330 INSTRUCTIONS TO JURIES " 618 of the accused to any extent at the time of the commission of the alleged offense, he is entitled to have the jury pass upon the effect th-ereof upon the question of intent, and it is error to instruct that the intoxication must be such that defendant could not form a criminal intent in order to be considered on the question of pur- pose, motive, or intent.*^ Where the accused is entitled to a charge on intoxication, he may demand a distinctive instruction thereon, disassociated from a charge as to the effect of drugs.*^ A request to charge upon a general assumption that drunken- ness, whether producing insensibility or not, will reduce the grade of the offense, is bad,** and the evidence may be such as to make it proper to refuse instructions on the effect of intoxi- cation which ignore the consideration whether the defendant made himself drunk for the purpose of doing the alleged criminal act, or whether he availed himself of a drunken condition to do such act.** It is not reversible error to charge that evidence of drunken- ness on the part of the accused should be received with caution,*® although it is better to omit such a charge.*® Instructions as to the effect of drunkenness as bearing upon the question of a criminal intent must be based upon the evidence.*' intent to kill and murder an instruc- , Colo. Ryan v. People, 114 P. 306, tion that drunkenness, unless defend- 50 Colo. 9&, Ann. Cas. 1912B, 1232. ant became drunk for the purpose Kan. State v. Guthridge, 129 P. of committing the offense he is ac- 1143, 88 Kan. 846. cused of, is a palliation or excuse for Ky. Hayes v. Commonwealth, 188 the commission of it when defendant S.' W. 415, 171 Ky. 291. is so drunk at the time of the com- Mo. State v. Church, 98 S. W. mission as to be unable to know what 36, 199 Mo. 605; State v. Riley, 100 he is doing, was properly refused as Mo. 493, 13 S. W. 1063. not being explicit enough, in that it N. M. State v. Orfanakis, 159 P. did not explain when it is that intox- 674, 22 N. M. 107. ication Is a defense to crime. State v. N. Y. I^anergan v. People, 50 Wilson, 49 So. 986, 124 La. 82. Barb. 266. 81 People V. Gerdvine, 104 N. B. Tex. Berry v. State, 80 S. W. 630, 129. 210 N. T. 184. 46 Tex. Cr. R. 420; Wright v. State, 82 Barton v. State, 81 S. W. 742, 40 S. W. 491, 37 Tex. Cr. R. 627; 46 Tex. Cr. R. 493. Leeper v. State, 29 Tex. App. 63, 14 8 3 Walker v. State, 91 Ala. 76, 9 S. W. 398. So. 87. Evidence snfficient to justify in- 8* State V. Kole, 32 S. E. 892, 124 stfuction. Where It Is shown that N, C. 816 ; State v. DlUiard, 53 S. E. the defendant said that he was drunk 117, 59 W. Va. 197. when he committed the homicide, and 86 People V. Ferris, 55 Cal. 588. another witness testifies that he aet- , 86 People V. NIhell, 77 P. 916, 144 ed as though he had been drinking, Cal. 200. it is proper to instruct the jury as to ^JcJ^^- -^^^^^ '^- ^*^*®' ^^ ^°- ^^^' *^ 1^^^ ii regard to homicide com- ,152, Ala. 25. mitted during Intoxication, although 619 INSTRUCTIONS ON DEFENSES IN CRIMINAL CASES §331- Thus an instruction that, if defendant voluntarily became intoxi- cated to better nerve himself to do the alleged criminal act, such drunkenness would not constitute an excuse, will constitute cause for reversal, where there is no evidence in support thereof,** and the court is not required to state specifically any of the exceptions to the rule that drunkenness does not excuse or extenuate crime, in the absence of any evidence on which to base such state- ment.*» Ordinarily a charge upon the effect of the intoxication of the defendant is not required, in the absence of a request there- for.»» § 331. Drunkenness as excuse for crime While in some jurisdictions it is proper to chargcthat voluntary intoxication is no excuse for the commission of a crime,*^ and in some jurisdictions, under statutory provisions, that such drunken- ness can be considered only in mitigation of the penalty,®* in other jurisdictions such an instruction, without qualification, will constitute reversible error, if an intent is a necessary element of the crime charged.®* most of the witnesses testify that de- fendant was sober. Jamison v. Peo- ple, 145 lU. 357, 34 N. B. 486. 8 8 Clark V. State, 49 N. W. 367, 32 Neb. 246. 89 State V. Guthridge, 129 P. 1143, 88 Kan. 846. 9 Thomas v. State, 91 Ga. 204, 18 S. E. 305. eiHanvey v. State, 68 Ga. 612; State V. Woodward, 90 S. W. 90, 191 Mo. 617; State v. Marriner, 108 A. 306, 93 N.' J. Law, 273; Murphy v. State (Tex. Or. App.) 40 S. W. 978; White V. State (Tex. Cr. App.) 30 S. W. 556. See Crew v. State (Tex. Cr. App.) 23 S. W. 14. Drankenness set up to shoiir physical inability. When drunken- ness is set up, not as an excuse for an admitted act, but to show physical in- ability to do the act at all, It Is prop- er to charge that, while drunkenness is no excuse for crime, it is a fact which may be proved to throw light on other facts or circumstances in the case. Jenkins v. State, 93 Ga. 1, 18 S. E. 992. »2 Stoudenmire v. State, 125 S. W. 399, 58 Tex. Cr. R. 258. »8 Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am. St. Kep. 232; Peo- ple V. Jones, 105 N. E. 744, 263 111. 564; GoUiher v. Commonwealth, 2 Duv. (Ky.) 163, 87 Am. Dec. 493; Latimer v. State, 76 N. W. 207, 55 Neb. 609, 70 Am. St. Rep. 403. See - Cook V. State, 35 So. 665, 46 Fla. 20. Instructions held not improper -within rule. Where, on an indict- ment for murder, there was evidence that defendant was in some degree intoxicated, and the jury were in- structed that if they believed he was frenzied from the use of liquor, so that he was incapable of knowing what he was doing, they would be justified in acquitting him, and that they were to take all the circumstanc-- es together, and see whether he had acted with deliberation, and no more definite instruction was asked for de- fendant, it was held that there was no error in further charging that , "drunkenness is no excuse for crime." Cross V. State, 55 Wis. 261, 12 N. W. 423. Absence of evidence of intoxica- tion. Where the evidence fails to show that defendant was intoxicated at the J:ime of the homicide, it is er- ror to instruct the jury that "volun- tary intoxication furnishes no ex- cuse for a crime committed under its § 331 INSTEUCTIONS TO JUKIE3 620 In one jurisdiction an instruction on voluntary intoxication as furnishing no excuse for crime should contain the phrase "when \sane and responsible." ®* D. Instructions on Alibi § 332. Necessity of instructions The general rule is that, where there is evidence in a criminal case tending to support an alibi, the court should, on request, in- struct on such issue,*^ and that it will be reversible error not to so instruct.^ Where the question of alibi is. bound up with an- other issue, so that they are virtually the same defense, it is not necessary, however, to instruct separately on such issues,®' and where the evidence is largely circumstantial instructions covering the law of circumstantial evidence and the question of alibi gen- erally may be sufficient.®* In some jurisdictions the court is not required to instruct on alibi as an independent issue,®* it being sufficient to charge that influences, even if the intoxication is so extreme as to make the author of the crime unconscious of what he is is doing, or to create a temporary in- sanity." Montag V. People, 141 111. 75, 30 N. E. 337. Dninheiiness not set up as ex- cuse. Where drunkenness was not set up as an excuse for the homicide, but as the contributing cause of an accident which resulted in the death, it was error to instruct abstractly that drunkenness is not an excuse for the commission of a crime. State V. Cross, 42 W. Va. 253, 24 S. B. 996. 04 People V. Trebilcox, 86 P. 684, 149 Cal. 307. SB Ala. McKlssack v. State, 75 So. 701, 16 Ala. App. 109. .Conn. State V. Brauneis, 79 A. 70, 84 Conn. 222. Ga. Montford v. State, 87 S. E. 797, 144 Ga. 582; Holland v. State, 86 S. E. 739, 17 Ga. App. 311 ; Calla- han V. State, 81 S.E. 380, 14 Ga. App. 442. Iowa. State V. Porter, 38 N. W. 514, 74 Iowa, 623. Mich. People v. Ooston, 153. N. W. 831, 187 Mich. 538. Tex. Burkhalter v. State, 184 S. V- 221, 79 Tex. Cr. R. 336 ; Schaper V. State, 122 S. W. 257, 57 Tex. Cr. B. 201; Ballentine v. State, 107 S. W. 546, 52 Tex. Cr. R. 369; Harper V. State (Cr.. App.) 98 S. "W. 839; Eountree v. State (Cr. App.) 55 S. W. 827; Smith v. State (Cr. App.) 50 S. W. 362, denying rehearing (Cr. App.) 49 S. W. 583. Wasi. State v. King, 97 P. 247, 50 Wash. 312, 16 Ann. Cas. 322. Wis. Abaly v. State, 158 N. W. 30§, 163 Wis. 609. 6 Ala. Burton v. State, 107 Ala. 108, 18 So. 284. Ind. Binns v. State, 46 Ind. 311. Kan. State v. Conway, 55 Kan. 323, 40 P. 661. N. C. State V. Byers, 80 N. C. 426. Tenn. Wiley v. State, 5 Baxt. 662 ; Davis v. State, Id. 612. Tex. Tittle V; State, 35 Texi Cr. E. 96, 31 S. W. 677; Anderson v. State, 34 Tex. Cr. R, 546, 31 S. W. 673. 8 7 Dale v. State, 88 Ga. 652, 15 S. E. 287. »8 Marshall v. State, 37 Tex. Cr. R. 450, 36 S. W. 86. 8 8 State V. Powers, 47 A. 830, 72 Vt. 168 ; Jenkins v. .State, 134 P. 260, 22 Wyo. 34, rehearing denied 135 P. 621 INSTRUCTIONS ON DEFENSES IN CRIMINAL CASES 332 if there is any reasonable doubt of the guilt of the defendant on the whole evidence he is entitled to an acquittal/ and after the court has properly charged as to the burden of proof where the evidence is circumstantial it need not further charge that the bur- den is upon the state to prove the presence of the defendant at the scene of the crime beyond a reasonable doubt.* An instruction on the effect of evidence of an alibi as raising a reasonable doubt of the guilt of the defendant is properly refused, where the court has already sufiEciently. charged on the subject of reasonable doubt.* Ordinarily the failure of the court to charge on an alleged alibi will not be error, in the absence of a request for ap instruction on such subject;* it being held that where no such request is made' the defense of alibi* is sufficiently embraced in a general charge on the presumption of innocence or reasonable doubt.^ In juris- dictions, however, where the court is required to instruct the jui-y on all questions of law arising in the case, an instruction on the subject of alibi must be given, whether requested by the defend- ant or not, if the evidence raises the issue.® In Georgia the rule is that where alibi is the main defense,' or the accused submits evidence on the trial which, if credible, is 749, 22 Wyo. 34. See State v. Keed, 62 Iowa, 40, 17 N. W.. 150. 1 Wallace v. Commonwealth, 220 S. W. 1051. 187 Ky. 775 ; State v. Shroy- er, 104 Mo. 441, 16 S. W. 286, 24 Am. St. Rep. 344. Compare State v. Edwards, 109 Mo. 315, 19 S. W. 91 ; State v. Kelly, 36 Mo. App. 213. 2.Tenkins v. State, 134 P. 260, 22 Wyo. 34, rehearing denied 135 P. 749, 22 Wyo. 34. 3 Benton v. State, 94 S. W. 688, 78 Ark. 284 ; Gibbs v. State, 1 Tex. App. 12. Contra, Fleming v. State, 136 Ind. 149, 36 N. E. 154. 4 m. People V. Bolik, 89 N. B. 700, 241 111. 394. Iowa. State V. Llghtfoot, 78 N. W. 41, 107 Iowa, 344. Kan. State V. Woods, 185 P. 21, 105 Kan. 554. Neb. Bloom v. State, 146 N. W. 965, 95 Neb. 710; Heidelbaugh v. State, 113 N. W. 145, 79 Neb. 499. Tex. Fowler v. State, 148 S. W. 576, 66 Tex. Cr. R, 500; Jones v. State, 143 S. W. 621, 64 Tex. Or. B. 510; Maulding v. State, 108 S. W. 1182, 53 Tex. Cr. R. 220; Lyon v. State (Or. App.) 34 S. W. 947 ; Rider V. State, 26 Tex. App. 334, 9 S. W. 688. Sufficiency of request ' for in- struction. Where the defendant tes- tifies that he was not present at the place where the crime was commit- ted, the failure to instruct as to the effect of an alibi is erroneous ; the attention of the court being called thereto by the allegation that the in- structions given "do not cover the whole law of the case." State v. Kop- lan, 66 S. W. 967, 167 Mo. 298. 5 State V. Sutton, 70 Iowa, 268, 30 N. W. 567 ; Myers v. State, 144 S. W. 1134, 65 Tex. Or. R. 448. 6 State v. Taylor, 118 Mo. 153, 24 S. W. 449. Compare State v. Dockery, 147 S. W. 976, 243 Mo. 592. Contra, State v. Bond, 90 S. W. 830, 191 Mo. 655. 7 Holland v. State, 86 S. E. 739, 17 Ga. App. 311; Hobbs v. State, 68 S. B. 515, 8 Ga. App. 53-; Dnggan v. State, 59 S. B. 846, 3 Ga. App. 332. § 333 INSTEUCTIONS TO JXJEIES 622 sufficient to sustain his defense of alibi, the court should of its own motion charge thereon,* but where the defendant does not pro- duce sufficient evidence to establish such defense, and the evidence is not close on the issue, the court need not instruct thereon with- out a request so to do ; ® this rule applying where the issue is raised only by the prisoner's statement.^* § 333. Rule where issue of alibi not raised Where the issue of an alibi is not raised by the pleadings and evidence, the court need not,^^ and should not,** give an instruc- tion on alibi, and it is erroneous to instruct that the defendant re- lies upon proof of an alibi.** Thus, where the defendant simply denies any participation in the crime alleged in the indictment, it is error to instruct as to the defense of an alibi and that such de- fense merely tends to cast a reasonable doubt on the case made by the state.** § 334. Svifficiency of evidence to authorize or require instruc- tions on alibi Evidence in support of the defense of alibi must be of clear and probative value, in order to require or authorize the court to charge upon the law of alibi, especially in the absence of a re- quest therefor,*' and the mere fact that the unswoiin statement of the defendant presents the issue of alibi does not necessitate an instruction on such issue, in the absence of a request therefor.*® To entitle a defendant to an instruction on alibi, the evidence must show that at the time of the commission of crime he was at a place so far away or under such circumstances that he could not with ordinary exertion have reached the scene of the crime in time 8 STiarpe v. State, 100 S. E. 567, 149 n Morris v. State, 27 So. 336, 124 Ga 472 Ala. 44 ; Johnson v. State (Tex. Cr. Barbour y. State, 99 S. E. 782. App) 58 S. W. 105; BenavWes v. „, „„ , ^ oi TT„ni/io,r TT a+afc state (Tex. Cr. App.) 61 S. W. 125. 08 S F^^ssl '23 Sa APP 400 •' " ^^^P^^ ^- ^arr, 104 N. E. 389, Pritfhetf'v State 90 S E 492 18 262 111. 202, affirming judgment 179 PntcBett V bme 9U b. J. 4j 18 jj^ ^^^ g ^ Bosworth, ^\t^% r' fTXIt- ^fXvfJ^ 152 N. W. 581, 170 Iowa, 329; Mitch- V ■ Iteie 75 S 1^491 11 Ga ipp «" ^- ^tate, 159 S. W. 1073, '71 Tex. Ii7^ Conel V State 75 S E 445 11 C*"' «• ^^S; Hardin v. State, 123 S. pJ'A^r/i^: P«„ur V «?<-«;/ 7n«! W. 613, 57 Tex. Or. R. 401. e" 5^8 %l: Ipf 704 ;'%*yh v! " ^^^ - State. 133 N. W. 431, 90 State, 65 S. E. 300, 6 Ga. App. 577. ^T^^ple y. Lukoszus, 89 N. E. 749, 10 Sheffeld v. State. 83 S. E. 871, 242 111. 101. 15 Ga. App. 514; Reed y. State, 83 is Throckmorton v. State, 97 S.E. S. El. 674, 15 Ga. App. 435 ; Bnmdage 664, 23 Ga. App. 112. y. State, 81 S. E. 384, 14 Ga. App. le Young y. State, 54 S. B. 82, 125 460 ; Watson y. State, 71 S. E. 122, Ga. 584 ; Murphy v. State, 45 S. E. 136 G.a. 236. ,609, 118 Ga. 780. 623 INSTRUCTIONS ON DEFENSES IN CRIMINAL CASES 335 to have participated in it>' To require such an instruction it is not necessary that there should be direct evidence of an alibi,^* or that the defendant should testify in so many words that at the time of the commission of the crime he was at a place other than where it was alleged to have been committed.^* The mere denial by the defendant that he was at the place where the crime was committed will not necessarily make it in- cumbent on the court to give such an instruction/* but the court should so instruct on request, if he swears that he was at another place at the time of the alleged crime/^ and so where the state introduces the testimony of the defendant on a former trial in sup- port of the defense of alibi.^* § 335j Propriety euid sufficiency of instructions on alibi In some jurisdictions an instruction on the defense of alibi should state the elements thereof,^* that the jury should consider all the evidence on the issue whether introduced by the state or 17 Cal. People V. Charles, 99 P. 383, 9 Cal. App. 338. Iowa. State v. Seymour, 94 Iowa, 699, 63 N. W. 661. Mo. State v. Bond, 90 S. W. 830, 191 Mo. 555. Okl. Barbe v. Territory, 86 P. 61, 16 Okl. 562. Tex. Funk v. State, 208 S. W. 509, 84 Tex. Cr. R. 402; "Woods v. State, 188 S. W. 980, 80 Tex. Cr. R. 73; CUck v. State, 155 S. W. 270; Russell V. State, Id.; Thornton v. State, Id.; Caples v. State, 155 S. W. 267, 69 Tex. Cr. R. 394 ; Johnson V. State, 120 S. W. 1000, 56 Tex. Cr. R. 540; Underwood v. State, 117 S. W. 809, 55 Tex. Cr. R. 601 ; Delaney V. State, 90 S. W. 642, 48 Tex. Cr. B. 594. Evidence of alibi insufficient to require an instmction thereon. The fact that defendant, charged with a homicide occurring in a free fight, was present during the flght, but fled therefrom during the fight does not authorize an instruction as to alibi. Jackson v. State (Tex. Cr. App.) 67 S. W. 497. In a prosecution for bur- glary the accused having admitted that 15 minutes prior to the time a person was detected attempting to rifle a safe in a mill building he was in close proximity thereto, and one witness having identified him as the guilty party, it was not prejudicial after charging, as to the burden of proof, the presumption of innocence, and the reasonable doubt, to refuse to specifically instruct as to the defense of alibi, though accused testified at the precise time the burglary was com- mitted he was about 20 rods distant from the building. Schultz v. State, 130 N. W. 105, 88 Neb. 613, 34 L. R. A. (N. S.) 243. 18 Sapp V. State (Tex. Cr. App.) 77 S. W. 456. Evidence to show defendant's presence at scene of crime entire- ly circumstantial. "Though defend- ant, charged with robbery, introduced no afiirmative evidence to prove an alibi, it was proper to instruct the ju- ry on the law of alibi, where the evi- dence to show defendant's presence at the robbery was all circumstantial. Tabor v. State, 107 S. "W. 1116, 52 Tex. Cr. R. 387. isPadron V. State, 55 S. "W. 827, 41 Tex. Cr. R. 548. 20Byas V. State, 51 S. "W. 923, 41 Tex. Cr. B. 51, 96 Am. St. Rep. 762. 21 "Wilson V. State, 51 S. "W. 916, 41 Tex. Cr. R. 115. 22 Davis V. State. 152 S. "W. 1094, 68 Tex. Cr. R. 400. 23 Collins V. State, 70 So. 995, 14 Ala. App. 54. §335 INSTRUCTIONS TO JURIES 624 the defendant,** that the defense of alibi is as proper as any other, that if the jury have a reasonable doubt as to whether the defend- ant was at a place other than where the crime is alleged to have been committed at the time it was committed they should give him the benefit of the doubt, and that he need not prove such alibi by a preponderance of the evidence.** An otherwise sufificient instruction on alibi is not rendered im- proper, however, by the failure to include the statement that an alibi is a legitimate defense,** and in other jurisdictions it is suffi- cient to charge in substance that, if the evidence raises a reason- able doubt in the minds of the jury as to the presence of the de- fendant at the scene of the crime at the time of its commission, they should acquit him.*' Thus an instruction that it would be 2 4 Thompson v. State, 117 P. 216, 6 Okl. Or. 50; Jenkins v. State, 134 P. 260, 22 Wyo. 34, rehearing denied 135 P. 749, 22 Wyo. 34. Instructions held proper vrithin rnle. An instruction that one of the defenses interposed is an alibi- that is, that defendant was in another place when the crime was committed ' — and that the evidence must be such as to show that, at the very time of the commission of the crime, the ac- cused was at another place, so that he could not, with ordinary exertion, have reached the place where the crime was committed, and that in considering this question the jury should consider the whole of the evi- dence, and then, if they have any rea- sonable doubt ot the guilt of accused, should acquit, is sufficient. Buck v. Territory, 9S P. 1017, 1 Okl. Gr. 517. 2 5 Burns v. State, 79 N. B. 929, 75 Ohio St. 407. Instructions held sufficient. In- structions that jury should acquit if they believed that defendant was not present when the crime was commit- ted, and that the burden of proving his presence at the time and place be- vond a reasonable doubt was on the state. State v. King, 165 P. C65, 101 Kan. 189. 2 6 State V. Sepult, 81 Iowa, 40, 46 N. W. 748 ; State v. Anglin (Mo.) 222 S. W. 776. 2 7 U. S. (C. O. A. Tenn.) McCool V. TJ. S., 203 F. 55. Cal. People V. Winters, 57 P. 1067, 125 Cal. 325. Fla. Blackwell v. State, 86 So. 224. Mich.. People V. Resh, 107 Mich. 251, 65 N. W. 99. Mo. State v. Anglin, 222 S. W. 776; State v. Bonner, 168 S. W. 591, 259 Mo. 342 ; State v. Brown, 153 S. W. 1027, 247 Mo. 715 ; State v. Shelton, 122 S. W. 732, 223 Mo. 118 ; State v. Adair, 61 S. W. 187, 160 Mo. 891. Mont. State v. Spotted Hawk, 55 P. 1026, 22 Mont. 33. Tex. Ellis V. State, 154 S. W. 1010. 69 Tex. Cr. R. 468 ; Clay v. State, 146 S. W. 166, 65 Tex. Cr. R. 590; McCoy V. State, 120 S. W. 858, 56 Tex. Cr. R. 551 ; Fox v. State, 109 S. W. 370, 53 Tex. Or. R. 150 ; Tinsley v. State, 106 S. W. 347, 52 Tex. Cr. R. 91 ; Vil- lereal v. State (Or. App.j 61 S. W. 715; Stevens v. State, 59 S. W. 545, 42 Tex. Or. R. 154 ; Gutirrez v. State (Or. App.) 59 S. W. 274; Pink v. State, 48 S. W. 171, 40 Tex. Cr. R. 23. See State v. Taylor, 134 Mo. 109, 35 S. W. 92. Instructions held sufficient with- in rule. An instruction that it was incumbent on defendants to establish the claim that they were elsewhere at the time of the murder by a pre- ponderance of the evidence, but not beyond a reasonable doubt, and "if, therefore, after consideration of all the evidence in the case, * * * you ■ have a reasonable doubt as to whether the defendants were at the place where the crime was commit- ted, or were in some other locality, * * * you shall give the defend- ants the benefit of that doubt, and 625 INSTRUCTIONS ON DEFENSES IN CRIMINAL CASES § 335 the duty of the jury to acquit the defendant if his testimony as to his whereabouts is sufficient to create in their minds a reasonable, doubt of his having committed the act charged against him is ade- quate on the question of alibi, although the court does not specifi- cally say that the defense is an alibi and does not define the mean- ing of the term.^* In still other jurisdictions it is proper to in- struct that evidence given in support of the defense of an alibi should be considered in connection with all the other evidence, and if on the whole evidence the jury have a reasonable doubt of the guilt of the defendant they should acquit him.** An instruction that defendant is not bound to prove an alibi set find them not guilty," imposes on the prosecution the obligation to demon- strate beyond a reasonable doubt that defendants were at the place of the killing, and gives them the benefit of their testimony to create in the minds of the jury a reasonable doubt as to their presence at the place. Borrego V. Territory, 46 P. 349, 8 N. M. 446, affirmed Same v. Cunningham, 17 S. Ct. 182, 164 U. S. 612, 41 L. Ed. 572. A charge that if the testimony as to the alibi was sufficient to raise a reasonable doubt as to defendant's presence at the place and time charg- ed, or as to his participation in the murder, the defendant must be dis- charged, given in connection with in- structions on reasonable doubt and presumption of innocence. State v. Kritchman, 79 A. 75, 84 Conn. 152. An instruction that defendant had in- terposed an alibi, that is, that even if the crime was committed as charg- ed, he was at the time at a different place, and was not and could not have been the person who committed it, and that, if the evidence left a rea- sonable doubt as to his presence at the place where the oflfense was com- mitted at the time of the commission thereof to find him not guilty. State V. Hillebrand, 225 S. W. 1006. In a criminal case, where defendant at- tempted to show an alibi, an instruc- tion that such defense "is as legiti- mate and valid as any other defense, * * * nor is the defendant bound to establish this defense beyond a rea- sonable doubt, and if, from the whole evidence, you have a reasonable doubt of his presence at the commission of the ofCense, as before explained, you INST.TO JXJEIES— 40 must give him the benefit of that doubt, and acquit," is sufficiently ex- plicit to show defendant's rights un- der that defense. State v. Bryant, 134 Mo. 246, 35 S. W. 597. An in- struction ^'among other defenses set up by defendant is what is known in legal phraseology as an 'alibi' ; that Is, that if the ofCense was committed as alleged, and defendant was at an- other and different place * * * at the time of the commission there- of, and therefore was not, and could not have been, the person who com- mitted the crime. Now, if the evi- dence raises in your mind a reasona- ble doiibt as to the presence of de- fendant at the place where the of- fense was committed, if any such was committed, at the time of the com- mission thereof, you will give defend- ant the benefit of such doubt and acquit him" — was proper. O'Hara v. State, 124 S. "W. 95, 57 Tex. Cr. R. 577. An instruction that if, in view , of all the 'evidence, the jury have a reasonable doubt as to whether de- fendants were in some other place when the crime was committed, they should be given the benefit of the doubt, and acquitted; that they are not required to prove an alibi be- yond a reasonable doubt to be en- titled to an acquittal; t|ut it is enough if the evidence raises a rea- sonable doubt of their presence at the time of the commission of the crime, Is correct. State v. Hassan, 128 N. W. 960, 149 Iowa, 518. 2 8 Commonwealth v. De Palma, 110 A. 7561, 268 Pa. 25.' 2 9 State v. Worthen, 100 N. W. 330, 124 Iowa, 408; State v. Standley, 76 § 335 INSTRUCTIONS TO JURIES 626 up, and that the jury should acquit him if his evidence raises a reasonable doubt as to his complicity in the offense charged, gives him the full benefit of the evidence relating to such defense.^** It is proper to instruct on behalf of the state that if, after con- sidering all the facts and circumstances in evidence, the jury have no reasonable doubt of the presence of the defendant at the time and place of the commission of the crime, then the defense of alibi has not been made out.^^ § 336. Propriety of instructions on burden of proof In the majority of jurisdictions instructions which place the burden on the defendant to establish an alibi by a preponderance of the evidence are erroneous.^* In some jurisdictions', however, the rule is that an alibi as a distinct issue must be shown by pre- ponderance of the evidence, and accordingly a charge that, when Iowa, 215, 40 N. W. 815; State v. Ardoin, 22 So. 620, 49 La. Ann. 1145, 62 Am. St. Rep. 678. Instructions proper within rule. An instruction that accused was not required to prove the defense of alibi beyond a reasonable doubt, but was entitled to an acquittal if the evi- dence raised a; reasonable doubt of defendant's presence at the time and place of the cominission of the crime charged, etc., sufficiently directed the jury to take into account the evi- dence relating to alibi in determining whether they were satisfied beyond a reasonable doubt on all the evidence as to defendant's guilt. State v. Thomas, 109 N. W. 900, 135 Iowa, 717, writ of error dismissed Thomas v. State of Iowa, 28 S. Ct. 487, 209 U. S. 258, 52 L. Bd, 782. In a criminal trial an instruction that the burden was on defendant to establish an alibi by a preponderance of the evidence, but that If the entire evidence, including "the defense of alibi" raised a rea- sonable doubt as to defendant's guilt he should be acquitted, was not re- versible error as leading the jury to understand that before defendant could have advantage from the evi- dence tending to prove an alibi, he must have established such defense by a preponderance of the evidence on that subject; the court having obvi- ously inadvertently used the word "defense" for "evidence." State v. Nugent, 111 N. W. 927, 134 Iowa, 237. An instruction that a defense of alibi, to be entitled to consideration, must show that at the very time of the commission of the crime the accused was at another place, so far away that he could not, with ordinary ex- ertion, have reached the place where the crime was committed to have participated in it, and stating that thel jury should consider the whole of the evidence, both as to the alibi and that relating to other facts in the case, and, if it entertained any reasonable doubt, should acquit, does not place the burden of proof on the defendant. Tucker v. Territory, 87 p: 307, 17 Okl. 56. so State V. Miller, 56 S. W. 907, 156 Mo. 76. 81 Aneals v. People, 134 111. 401, 25 N. B. 1022. 32 Ariz. Barton v. Territory of Arizona, 85 P. 730, 10 Ariz. 68. Cal. People v. Hoosier, 142 P. 514, 24 Cal. App. 746; People v. Morris, 84 P. 463, 3 Oal. App. 1. N. Y. People V. Montlake, 172 N. T. S. 102, 184 App. Div. 578. Ohio. Burns v. State, 79 N. B. 929, 75 Ohio St. 407. Okl. Shoemaker v. Territory, 4 Okl. 118, 43 P. 1059. Or. State V. Ghee Gong, 19 P. 607, 16 Or. 534. Tex. Ayres v. State, 21 Tex. App. 399, 17 S. W. 253. See People v. Tarmi Poi, 80 Cal. 225, 24 P. 998. 627 INSTRUCTIONS ON DEFENSES IN CRIMINAL CASES §336 a defendant attempts to prove an alibi, the burden is on him to prove it successfully, or by a preponderance of the evidence, is not improper,** if in connection with such an instruction the jury is charged that any evidence of alibi should be considered in con- nection with all the other evidence in the case, and if, upon the evidence as a whole, there is a reasonable doubt of guilt, the de- fendant should be acquitted.** The better doctrine is that, where the people have made a prima facie case and the defendant relies on the defense of alibi, the bur- den IS on him to prove it, not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence and to such a degree of certainty as will, when the whole evidence is consid- ered create and leave in the mind of the jury a reasonable doubt 33 Parham v. State, 42 So. 1, 147 Ala. 57 ; Pellum v. State, 89 Ala. 28, 8 So. 83 ; Belcher v. State (Ga. App.) 103 S. E. 852; Jones v. State, 60 S. E. 840, 130 Ga. 274. See State v. O'Brien, 175 N. W. 769, 188 Iowa, 165. Proof to reasonable satisfaction of jury, in a prosecution for rape, a charge that the burden was on ac- cused to prove an alleged alibi to the reasonable satisfaction of the jury was proper, and could not be . construed to mean that the accused had to prove the alibi beyond a rea- sonable doubt. Ryals v. State,- 54 S. E. 168, 125 Ga. 266. Inatmctions reciniring too Mgli a degrree of proof. An instruction that "the burden of proof was on de- fendant to establish his alibi, and that it must be done to your satis- faction." Prince v. State, 100 Ala. 144, 14 So. 409, 46 Am. St. Rep. 28. On a defense of alibi, it is error to charge that, because it is usually made out by members of the family of the accused, the law says it must be made out very clearly and satis- factorily (that is, that the proof must be pretty positive) ; that it must be such proof as will carry conviction to your minds, and which should, pre- ponderate and fix pretty thoroughly the place that the defendants allege themselves to be; that the evidence must establish pretty thoroughly that they were at the identical place that they allege they were on the night that the crime was committed. Com- monwealth V. Gutshall, 22 Pa. Super. Gt. 269. Proof beyond reasonable doubt. An instruction requiring the defend- ant to establish the defense of alibi to the exclusion of a reasonable doubt is erroneous. Evans v. State, 79 S. E. 916, 13 Ga. App. 700. 34 Ark. Eaybum v. State, 63 S. W. 356, 69 Ark. 177. Ga. McDonald v. State, 94 S. E. 262, 21 Ga. App. 125 ; Eidson v. State, 94 S. E. 73, 21 Ga. App. 244; Moody V. State, 86 S. E. 285, 17 Ga. App. 121 ; Kaysor v. State, 63 S. E. 786, 132 Ga. 237 ; Henderson v. State, 48 S. B. 167, 120 Ga. 504. Iowa. State v. Thomas, 109 N. W. 900, 135 Iowa, 717; State v. Hogan, 88 N. W. 1074, 115 Iowa, 455 ; State V. McGarry, 83 N. W. 718, 111 Iowa, 709 ; State v. Maher, 74 Iowa, 82, 37 N. W. 5 ; Id., 74 Iowa, 77, 37 N. W. 2. Pa. Rudy V. Commonwealth, 128 Pa. 500, 18 A. 344, 24 Wkly. Notes Gas. 502. Vt. State v. Ward, 61 Vt. 153, 17 A. 483. In Georgia, it is held that such a charge will not be necessary, especial- ly in the absence of a request there- for, if the court has correctly charg- ed on reasonable doubt as applicable to all the evidence and the statement of the defendant. Tooke v. State (Ga. App.) 102 S. E. 905; Bass v. State, 5T S. E. 1054, 1 Ga. App. 728, 790. §336 INSTRUCTIONS TO JURIES 628 of his guilt of the crime charged,^^ and an instruction which, in effect, enunciates this rule is proper,** while instructions impos- ing a greater burden are erroneous.*" An instruction that, if the jury believe the defendant to have been at some place other than that where the crime was committed at the time of its commission, they should acquit him, is generally held erroneous, as placing the burden of proof upon the defend- ant,** although in some jurisdictions it is not objectionable if the court properly charges the doctrine of reasonable doubt as appli- cable to the whole case.** § 337. Propriety and sufficiency of instructions as to time Alibi is not a substantive defense, but the burden of proof is upon the state to show that the defendant was at the scene of the crime at the time of its commission.*" If the evidence of an alibi renders it very improbable that the defendant was present at the scene of the crime, it may be considered by the jury for what it is worth.*^ It is therefore misleading and erroneous to charge that it is essential to the satisfactory proof of an alibi that the evidence in support of it should cover the whole of the time of the transaction in question, or so much thereof as to render it im- 35 State V. Ward, 173 P. 497, 31 Idaho, 419 ; State v. Bogris, 26 Idaho, 587, 144 P. 789 ; MuUins v. People, 110 111. 42; State v. Thornton, 73 N. W. 196, 10 S. D. 349, 41 L. R. A. 530. See Morris v. State (Arjj.) 224 S. W. 724 ; Barnhart v. State, 177 N. W. 820, 104 Neb. 529. Instructions not improper as placing linrden of proof on defend- ant. It Is not error to charge that ■, an alibi is a good defense, if proved to the satisfaction of the jury, and such a charge does not convey an intima- tion that the burden of proving it rests upon the prisoner. State v. Starnes, 94 N. C. 973. Instructions on burden of proof held proper in connection with other instructions. An instruction that an alibi is a good defense If prov- en, was not erroneous where the jury were directed in the same connection that, if they had a reasonable douh|t as to defendant's presence, they must acquit. State v. Price, 55 Kan. 610, 40 P. 1001 ; State v. McGinnis, 59 S. W. 83, 158 Mo. 105. Where the jury were instructed to find for defendant, unless the state proved everything es- sential to the establishment of the charge to the exclusion of a reason- able doubt, it was not error to charge, immediately afterwards, that "the burden rests upon the commonwealth to make out its case, * * * to the exclusion of a reasonable doubt, but, where the accused • * * at- tempts to prove an alibi, * * * the burden of proving the alibi rests upon him." Thompson v. Common- wealth, 88 Va. 45, 13 S. E. 304. seAckerson v. People, 124 111. 563, 16 N. E. 847 ; MuUins v. People, 110 111. 42. 87 Thompson v. State, 117 P. 216, 6 Okl. Or. 50. 38 People V. Fong Ah Sing, 64 Cal. 253, 28 P. 233; Henderson v. State, 101 S. W. 245, 51 Tex. Cr. R. 193; Bennett v. State, 30 Tex. App. 341, 17 S. W. 545. 39 State v. Johnson, 91 Mo. 489, 3 S. W. 868. 40 Gawn v. State, 13 Ohio Cir. Ct. R. 116, 7 O. C. D. 19. *i Ford V. State, 47 S. W. 703, 101 Tenn. 454. 629 INSTETICTIONS ON DEFENSES IN CRIMINAL CASES §337 possible for the defendant to have committed the crime;** such an instruction shifting the burden of proof from the state to the de- fendant,*8 and violating the rule that the defendant is entitled to an acquittal if the whole evidence generates a reasonable doubt as to his guilt.** So it is error to charge that, if it was possible for the defendant to have been at either the place of .the crime or the place where he claimed to be at the time of its commission, the evidence of alibi is of no value whatever.*^ It is not error, however, to in- struct that evidence of an alibi, to be satisfactory, must account for his whereabouts during the whole of the period in question, where the court also instructs that, if the jury have any reasonable doubt as to whether the defendant was present at the scene of the crime, they should acquit.*® Where the witnesses for the state have fixed the date of the crime within a few days, it is error for the court to charge that the exact date of the offense is imma- terial, and that it is sufficient to support a conviction if the evi- 42 Doby V. State, 74 So. 724, 15 Ala. App. 591 ; McAnaUy v. State, 74 Ala. 9; Wisdom v. People, 11 Oolp. 170, 17 P. 519 ; Briggs v. People, 76 N. E. 499, 219 111. 330; Gawn v. State, 13 Ohio GTt. Ct. R. 116, 7 O. O. D. 19. Kigbt of jury to consider incom- plete proof of alibi. The jury should not be told not to consider any evidence on the subject of an alibi, unless it covers the whole period of time during which the offense was committed. Haskins v. State (Ark.) 230 S. W. 5. *3 Pollard V. State, 53 Miss. 410, 24 Am. Rep. 703. 44 Beavers v. State, 103 Ala. 36, 15 So. 616 ; AUbritton v. State, 94 Ala. 76, 10 So. 426. 45 Ford V. State, 47 S. W. 703, 101 Tenn. 454. EfFect of nse of terms "possi- ble" and "impossible." Where, in a murder case, the court charged that time, as far as the question of an alibi is concerned, is very material, and the jury should remember all ev- ery witness had stated in regard to that question, and determine whether It was possible for defendant, under all the circumstances, to leave the house of T>., and go to the house of deceased, and fire the fatal shot at the time it was fired ; that if, from all the circumstances, it was impos- sible for defendant to do so, then the alibi was made out, and was a com- plete defense, but, if it was possible for defendant to leave the house of D., go to the house of deceased, and fire the fatal shot, the evidence failed to establish the alibi, it was held that , the use of the terms "possible" and "Impossible" was erroneous, as they were too strong in the connection in which they were used. Snell v. State, 50 Ind. 516. 46 People v. Worden, 45 P. 844, 113 Oal. 569; Barr v. People, 71 P. 392, 30 Colo. 522. £xact time of commission of of- fense not shoivn. On the trial of a criminal cause, where evidence has been introduced tending to show that I the defendant was at a place other than the place where the crinie was committed, at the time of its com- mission, but where the exact time of the commission of the crime is not shown, but it is shown to have been committed during a night, or part of a night, it is right to instruct the jury that evidence of an alibi must cover the whole of such time. West V. State, 48 Ind. 483. § 3S8 INSTRUCTIONS TO JTJKIBS 630 deuce shows that the defendant committed the crime at any time within, the period of limitations.*' § 338. Propriety and sufficiency of instructions as to place The distance between the place where the defendant claims to have been at the time of the commission of the crime of which he is accused and the place where the crime was committed is not the controlling element oi an alibi, and the general rule is that it is error to instruct that, satisfactorily to establish his defense of alibi, it must appear that such distance was so great as to pre- clude the possibility that defendant could have been at the scene of the crime.** While it may not be impossible for the defendant to have been present at the place of the crime, it may be highly improbable, and this* the jury should be allowed to take into ac- count.*' In some jurisdictions, however, in some cases, under the terms of a statute, it is not improper to instruct that in orde'r to make out the defense of alibi the evidence must satisfy the jury that the accused was at a place where it was impossible for him to have committed the crime.®" An instruction that, if the accused was not so far away from the place where the crime was commit- ted but that he could with ordinary exertion have reached such place, the jury may consider such fact, is not improper, as allow- ing the jury to infer that the defendant would be presumed to have been at such place at the time of the commission o;f the of- fense if he could by ordinary exertion have reached it.®^ 47 State V. King, 97 P. 247, 50 Wash. v. Butler, 67 Iowa, 643, 25 N. W. 843. 312, 16 Ann. Cas. 822. Where the evidence tends to show *8 Peyton v. State, 74 N. W. 597, an alibi, it is not error to instruct 54 Neb. 188. > that the evidence tended to show that Instructions held proper -within the defendant was, when the crime rule. Where on an indictment for was being committed, at such a dis- larceny, defendant set up an alibi, tant and different place that he could and the court instructed that, "if he not have participated in its corn- has shown that at the time of the lar- mission, and that they should acquit eeny he was at such distance from the unless the evidence satisfied them be- scene that he could not have partio yond a reasonable doubt that he was ipated in the commission of the crime, present -when the crime wafe commit- this will overcome any presumption ted. Nightingale v. State, 87 N. W. of guilt which would arise from the 158, 62 Neb. 371. fact of his having possession of the *» West v. State, 48 Ind. 483. property," it was held that the giving bo McOool v. TJ. S. (O. C. A. Tenn.) of this instruction does not warrant 263 F.' 55 ; Field v. State, 55 S. E. a new trial on the ground that it 502, 126 Ga. 571 ; Harris v. State, 47 conveys the idea that the establish- S.' E. 520, 120 Ga. 167 ; Simpson v. ment of the alibi depends, not upon State, 78 Ga. 91. absence from the locus in quo, but bi State v. Burton, 67 P. 1097. 27 upon the distance therefrom. State Wash. 528. 631 INSTRUCTIONS ON DEFENSES IN CRIMINAL CASES §339 § 339. Disparagement of defense of alibi Evidence of an alibi is to be subjected to the same test as any other evidence of a material fact,^* and the general rule is that an instruction tending to .cast suspicion on such evidence or to disparage the defense of an alibi is erroneous.®* Thus it is error to instruct, without any accompanying explanation or qualifica- tion, that the defense of alibi is to be weighed with great caution, because it is a defense easily fabricated and often attempted by contrivance and perjury.^* It is, however, proper in some juris- dictions to advise the jury to scan the evidence of an alibi with care and attention,^ and call attention to the fact that such a de- fense is more easy to build than some others,^ such an instruc- B2 Sater v. State, 56 Ind. 378. 5S Ind. Binns v. State, 46 Ind. 311. Micli. People v. Pearsall, 50 Mich. 233, 15 N. W. 98. Miss. Simmons v. State, 61 Miss. 243. Mo. State v. Crowell, 50 S, W. 893, 149 Mo. 391, 73 Am. St. Eep. 402. TX. T. People v. Kelly, 35 Hun, 295. Or. State v. Chee Gong, 16 Or. 534, 19 P. 607. S. C. State V. Danelly, 107 S. E. 149. Tex. Walker v. State, 37 Tex. 366. Instrnctions held mot oljection- ablei within rule. An instruction that the defendant has introduced evidence tending to establish "what is known as an alibi." Rownd v. State, 140 N. W. 790, 93 Neb. 427. Where, on a prosecution for homicide, the court charged that if the plea of an alibi was not Interposed in good faith, or the evidence to sustain it was simulated, it was a discrediting circumstance, which the jury could consider, with the other evidence, in determining'the guilt or innocence of the defendant, it was held that al- though the reference to the plea of an alibi, there being no such separate plea in the case, was inapt, the in- struction, when applied to the de- fense of an alibi which was sought to be proved uiider the general issue, was proper. Tatum v. State, 31 So. 369, 131 Ala. 32. An instruction that a preliminary question for the jury is whether defendant has proven an ali- bi, that such defense, if established, is decisive of the case, and that, IE the jury think it is sustained by the evidence, they need investigate no further, is not erroneous, as intimat- ing that such defense Is doubtfiU or untrue. Huff v. State, 91 Ga. 5, 16 S. B. 99. 6 4 Dawson v. State, 62 Miss. 241; Nelms V. State, 58 Miss. 362. Similar instructions held er- roneous. A charge that the defense of alibi is, liable to great abuse, grow- ing out of the ease with which It may be fabricated, and the diflBculty with which such fabrication can be detect- ed." Albin V. State, 63 Ind. 598. It Is error for the court to advise the jury that the defense of alibi is one "easily fabricated, that It has occa- sionally been successfully fabricated, and that the temptation to resort to It as a spurious defense is very great, especially In cases of importance." Henry v. State, 70 N. W. 924, 51 Neb. 149, 66 Am. St. Bep. 450. 5 5Provo V. State, 55 Ala. 222; People V. Carson (Oal. App.) 192 P. 318 ; State v. Worthen, 100 N. W. 330, 124 Iowa, 408 ; People v. Tice, 73 N. W. 108, 115 Mich. 219, 69 Am. St Rep. 560. B« TI. S. (C. O. A. Okl.) Fielder v. United States, 227 F. 832, 142 0. C. A. 356. Cal. People v. Levine, 85 Cal. 39, 24 P. 631; People v. Lee Gam, 69 Oal. 552, 11 P. 183 ; People v. Wong Ah Foo, 69 Cal. 180, 10 P. 375. Iowa. State v. Oartwright, 174 N. §340 INSTRUCTIONS TO JURIEa 632 tion not being Tegarded as discrediting the testimony of the de- fendant,®' and it is not error to characterize an alibi as a defense."" § 340. Effect of failure to prove alibi In some jurisdictions it is not improper for the court to tell the jury that an unsuccessful attempt of the defendant to prove an alibi is a circumstance to be weighed against him in connection with the other evidence,®* and it is not error to refuse to charge the negative of such proposition.®* But an instruction that, if the defendant fails to establish his defense of alibi by a preponder- ance of the evidence, he will not be entitled to have the evidence in support of such defense considered as a basis of a reasonable doubt, is erroneous,*^ and it is error to charge that an unsuccessful at- tempt to prove an alibi is a circumstance of great weight against the defendant,®* or to instruct that the omission of a defendant to account for his whereabouts is of a "conclusive character" against the defendant ; ** and it is error to instruct that a failure to prove an alibi implies an admission of the truth and relevancy of the W. 586, 188 Iowa, 579; State v. New- comber, 174 N. W. 255; State v. Leete, 174 N. W. 253, 187 Iowa, 305 ; State V. Rowland, 72 Iowa, 327, 33 N. W. 137. 67 People V. Portenga, 96 N. W. 17, 134 Mich. 247. 5 8 State V. Hale, 56 S. W. 881, 156 Mo. 102; MeVey v. State, 77 N. W. 1111, 57 Neb. 471. 5 9 Ala. Bell V. State, 86 So. 139, 17 Ala. App. 399 ; Wiley v. State, 65 So. 204, 10 Ala. App. 249; Wray v. State, 57 So. 144, 2 Ala. App. 139; Crittenden v. State,, 32 So. 278, 134 Ala. 145 ; Jackson v. State, 23 So. 47, 117 Ala. 155. Pa, Commonwealth v. McMahon, 145 Pa. 413, 22 A. 971. Vt. State V. Hier, 63 A. 877, 78 Vt. 488. Instructions beld proper witb- im pule. An instruction that the introduction of false evidence of an alibi constituted a circumstance against defendant, and was an infer- ential admission of guilt, but not conclusive, that the fact that he had been guilty of introducing^ it should be established beyond all question, and that, if the evidence of such fact was doubtful, no weight should be given it, was correct. State v. Ward, 61 Vt. 153, 17 A. 483. Where the court charged that if defendant at- tempts to prove an alibi, and fails, it is a circumstance for the jury to consider, and, as the Supreme Court has said, they should carefully scru- tinize the evidence because of its liability to abuse, and that by scru- tinizing he meant them to study care- fully, examine, and cautiously receive the evidence^ it was held that this charge was not error, it not Indicating that failure to prove an alibi was any evidence of guilt, and, considered as a whole, it could not have been mis- leading. State V. Eochelle, 72 S. B. 481, 156 N. O. 641. «o State V. Callahan, 111 P. 445, 83 Kan. 448. 61 State V. McGarry, 83 N. W. 718, 111 Iowa, 709 ; Turner v. Common- wealth. 86 Pa. 54, 27 Am. Rep. 683. «2Allbritton v. State, 94 Ala. 76, 10 So. 426; People v. Malaspina, 57 Cal. 628. «8 Gordon v. People, 33 N. T. 501. Fabricated alibi as positive proof of guilt. A Charge that, if defendant fabricated his alibi, the Jury have a right to consider that as 633 INSTRUCTIONS ON DEFENSES IN CRIMINAL CASES § 340 facts alleged by the state,®* and in some jurisdictions it is im- proper to tell the jury that such a failure may be considered as a circumstance proving guilt, since the burden is^ on the state throughout, and the defendant is not bound to explain anything.*^ positive proof of guilt, is calculated and not conclusive. State v. Manning, to mislead the jury to suppose that 52 A. 1033, 74 Vt. 449. in that event they are bound to con- e* State v. Collins, 20 Iowa, 85. Vict, whereas a fabricated alibi is «» Parker v. State, 136 Ind. 284, merely ■ a criminative circumstance, 35 N. B. 1105. § 341 mSTBTJCTIONS TO JURIES 634 CHAPTER XXVII INSTRUCTIONS BEARING ON RELIEF AWARDED OR PUNISHMENT INFLICTED A. Measube of Damages and Amount of Recovbey in Civil Cases § 341. Necessity and sufficiency of instructions in general, 342. Use of words expressive of obligation. 343. Remote or speculative damages. 344. Personal injuries aggravating prior diseased condition. 345. Duty of plaintiff to mitigate damages. 346. Permitting double recovery. 347. Pain and suffering. 348. Future pain and suffering. 349. Loss of earnings and impairment of earning capacity. 350. Exemplary damages. 351. Calling attention to ad 'damnum. 352. Effect, as evidence, of mortality and annuity tables. 353. Confining jury to evidence. B. Punishment in Criminal Oases 354. Necessity and propriety of instructions in general. 355. Rule as to instructions where jury has Some power with respect to fixing punishment. 356. Recommendation to mercy or of mitigation of punishment. A. Measure op Damages and Amount of Recovery in Civil, Cases § 341. Necessity and sufficiency of instructions in general. When the law provides a definite measure of damages,^ or when a reasonably safe standard is afforded by the circumstances of the particular case by which the compensation can be measured,* the general rule is that it is the duty of the court, in the discharge of its function, to lay down the rules of law applicable to the case, either on its own motion or on request, to instruct the jury as to the measure of damages and the various elements entering into the amount of recovery,* not necessarily in such terms that the amount 1 Creighton v. Campbell, 149 P. Md. Western Maryland R. Co. v. 448, 2T Colo. App. 120 ; Omaha Coal, Martin, 73 A. 267, 110 Md. 554. Coke & Lime Co. v. Fay, 37 Neb. 68, Neb. Carpenter v. City of Red 55 N. W. 211. Cloud, 89 N. W. 637, 64 Neb. 126. "2 Parsons v. Missouri Pae. Ry. Co., Pa. Burns v. Pennsylvania R. 94 Mo. 286, 6 S. W. 464. Co., 82 A. 246, 233 Pa. 304, Ann. Cas. •1 Ariz. Curry v. Windsor, 194 P. 191 3B, 811. 958. Tex. Southern Traction Co. v. Colo. Northern Colorado Irr. Co. Owens (Civ. App.) 198 S. W. 150; V. Reuter, 186 P. 286, 67 Colo. 483. Missouri, K. & T. Ry. Co. of Texas v. Ga. Central of Georgia Ry. Co. v. Lightfoot, 106 S. W. 3&5, 48 Tex. Civ. Hughes, 56 S. E. 770, 127 Ga. 593. App. 120; Houston & T. O. R. Co. v. 635 EBLIEF AWARDED OR PUNISHMENT INFLICTED §341 can be exactly determined, but so as to define the reasonable lim- its within which the calculations are to be computed ; * this rule ap- plying whether the action is for personal injuries,^ for injuries to property,* or for breach of contract.' Buchanan, 84 S. W. 1073, 38 Tex. Civ. A pp. 165. In Missouri instructions are not erroneous because tliey leave the case without charges on the measure of damages, since in a civil action it is not compulsory to give instructions. Lathrop v. Quiney, O. & K. C. Ey. Co., 115 S. W. 493, 135 Mo. App. 16. Omission to instruct as to in- juries not permanent. Where there was an issue whether personal injuries were permanent or tempora- ry, an instruction as to measure of damages where injury was per- manent, omitting to instruct as to . injuries not permanent, even without proper request, would be cause for reversal. Seaboard Air Line Ry. v. Brewton (Ga. App.) 102 S. B. 920. Becovery on quantum meruit. In an action on quantum meruit to determine the value of services ren- dered to defendants' aged and infirm testator, a charge that the law would import a promise to pay the reason- able value of the services rendered furnished a sufficient guide to the measure of recovery under the evi- dence, in the absence of any request for more specific instructions. Mead- or V. Patterson (Ga. App.) 103 S. B. 95. Interest as element of recovery. Where the prevailing party to an ac- tion is entitled to any interest, it Is error for the court to fail to instruct the jury respecting the rate of in- terest that it may assess in its ver- dict. Kimball v. Lanning, 165 N. W. 890, 102 Neb. 63. Effect of statute requiring court to charge only as to the law. Under a statute requiring the court to charge the jury only as to the law of the case, failure of the court to instruct as to the law of the case is error, and a court, in a Tjerson- al injury action, which merely charg- es that it cannot dtetermine the sum to be allowed, but that is entirely for the jury, without pointing out the ele- ments on which a recovery may be had, does not comply with the statute, especially where there is a proper re- quested charge on the measure of damages. Jageriskey v. Detroit Unit- ed Ey., 128 N. W. 726, 163 Mich. 631. * Parsons v. Missouri Pac. Ey. Co., 94 Mo. 286, 6 S. W. 464. 5 Ala. Southern Ey. Co. v. Coch- ran, 42 So. 100, 149 Ala. 673. Ga. Central of Georgia Ey. Co. v. Hill, 94 S. E. 50, 21 Ga. App. 231. Idaho, Holt v. Spokane P. Ey. Co., 35 P. 39, 3 Idaho (Hasb.) 703. lU. Boggs V. Iowa Cent. Ey. Co., 187 111. App. 621 ; Gallagher v. Singer Sewing Mach. Co., 177 111. App. 198 ; Chicago, E. & L. S. Ey. Co. v. Ada- mick, 33 111. App. 412. Ky. Weil v. Hagan, 170 S. W. 618, 161 Ky. 292. Mo. Hawes v. Kansas City Stock- yards Co., 103 Mo. 60, 15 S. W. 751. Okl. Ft. Smith & W. , R. Co. v. Green, 156 P. 349, 56 Okl. 585. Pa. Bums v. Pennsylvania R. Co., 82 A. 246, 233 Pa. 304, Ann. Cas. 1913B, 811. Xenn. Citizens' St. E. Co. v. Bur- ke, 40 S. W. 1085, 98 Tenn. 650. Tex. Gulf, O. & S. F. Ry. Co. v. Head (App.) 15 S. W. 504. 6 Ky. Adams & Sullivan v. Sen- gel, 197 S. W. 974, 177 Ky. 535, 7 A. L. E. 268 ; Southern Ry. in Kentucky v. Kentucky Grocery Co., 178 S. W. 1162, 166 Ky. 94. Md. Pettit V. Commissioners of Wicomico County, 90 A. 993, 123 Md. 128, Ann. Cas. 1916C, 35. Mo. Badgley v. City of St. Louis, 50 S. W. 817, 149 Mo. 122. Tex. Quanah, A. & P. Ey. Co. v. ' Price (Civ. App.) 192 S. W. 805. Wyo. Hatch Bros. Co. v. Black, ]65 P. 518, 25 Wyo. 109. 7 Ala. Howard v. Taylor, 90 Ala. 241, 8 So. 36. Ga. Southern Ey. Co. v. O'Bryan, 37 S. B. 161, 112 Ga. 127. §341 INSTRUCTIONS TO JURIES 63& Thus an instruction authorizing the jury to find for the plaintiff in such sum as they believe from the evidence will equal the dam- age sustained by him,* or in such sum as will fairly compensate him for his injury,® or that the jury should render a verdict for such damages ds appears from all the evidence to be just,^" will ordina- rily be too general. In one case it is said that appellate courts steadily set their faces against the practice of issuing a roving coin- mission to juries to establish their own standards of damages in place of those defined by the rule? of law." The use of the abbreviation "etc.," in a charge enumerating the items of damage recoverable for personal injuries, is erroneous as practically giving the jury unlimited scope in the assessment of damages.-*^* In an action of trespass it is error to say, as to com- pensatory damages, that the amount is not fixed by law, but is left to the sound judgment and the discretion of the jury.-^* Even in those actions in which the amount of recovery depends upon the sound discretion of the jury, as in actions for libel, the court should,, so far as it can, prevent the jury from acting upon improper the- ories of what should be regarded in estimating the elements which III. Newman r. Tishenor, 107 111. App. 53; Comstock v. Price, 103 111. App. 19. Kan. Jenkins v. Kirtley, 79 P. 671, 70 Kan. 801 ; Union Pac. Ry. Co. V. Shook, 3 Kan. App. 710, 44 P. 685. Ky. Miles v. Miller, 12 Bush, 134 ; Alsop v. Adams, 7 Ky. Law Rep. (ab- stract) 746. la. Varillat v. New Orleans & O. R. Co., 10 La. Ann. 88. Md. Baltimore & O. R. Co. v. Carr, 71 MJd. 135, 17 A. 1052. Mich. Howe v. Nortll, 69 Mich. 272, 37 N. W. 213. Mo. Rhodes v. Holladay-Klotz Land & Lumber Co., 105 Mo. App. 279, 79 S. W. 1145 ; Haystler v. Owen, 61 Mo. 270; Matney v. Gregg Bros. Grain Co., 19 Mo. App. 107. N. O. C. B. Coles & Sons O). v. Standard Lumber Co., 63 S. E. 736. 150 N. C. 183. Pa. Otis Elevator Co. v. Flanders Realty Co., 90 A. 624, 244 Pa. 186; McOloskey v. Bell's Gap R. Co., 156 Pa. 25'4, 27 A. 246 ; Sanderson v. Penn- sylvania coal Co., 102 Pa. 370 ; Brie City Iron Works v. Barber, 102 Pa. 156; Schofield v. Simpson, 6 Leg. Gaz. 70. ■ Tex. Glascock v. Shell, 57 Tex. 215. s Elswick V. Ramey, 163 S. W. 751, 157 Ky. 639. "Lexington Ry. Co. v. Herring, 97 S. "W. 1127, 30 Ky. Law Rep. 269. i« Trabing v. California Nav. & Imp. Co., 53 P. 644, 121 Ca:l. 137; Union Pac. Ry. Co. v. Shook, 3 Kan. App. 710, 44 P. 685. 11 Camp V. Wabash R. Co., 68 S. W. 96, 94 Mo. App. 272. Instructions not improper ivitli- in rule. An instruction that the ju- ry will assess plaintiff's damages at such a sum as they believe from the evidence will reasonably compensate him for tlie injuries sustained, wheth- er temporary or permanent, if any, as shown by the evidence, together with all the facts and circumstances de- tailed in the evidence. Hurst v. Chi- cago, B. & Q. B. Co., 219 S. W. 566, 280 Mo. 566, 10 A. L. R. 174. 12 Lodwick Lumber Co. v. Taylor, 87 S. W. 358, 89 Tex. Civ. App. 302. IS Steele v. Davis, 75 Ind. 191. 637 RELIEF AWARDED OR PUNISHMENT INFLICTED § 341 go to make up the injury to be redressed." The court is not ex- cused from instructing on the measure- of damages by the fact that the jury find the facts specially. ^^ Where the court has properly instructed the jury as to the mat- ters they are to consider in assessing the damages, it need not specially instruct against considering other matters which, although in evidence are not proper elements of damage," and where the court lays down the proper measure or rule of damages it is not obliged to formulate a particular method of computation for the jury to pursue in estimating the damages of plaintiff," at least without request.^* In jurisdictions where the rule of comparative negligence prevails, it is held not to be error to fail to state that any damages recovered are to be diminished in proportion to the con- tributory negligence of the plaintiff, if the jury find him to be neg- ligent, unless a request for such a declaration is made.-^* In an action for personal injuries, the instruction should be so framed as not to permit recovery for permanent injuries unless it is reasonably certain that the injuries will be permanent.** An in- struction that, if the jury are satisfied from the evidence that the plaintiff has sustained permanent injuries they may allow perma- nent damages does not violate this rule.^"- Where it is sought to recover permanent damages, the instructions should not permit the jury to get the impression that damages are to be allowed on the basis of the expectancy of life of the plaintiff before he was in- jured.*^ Instructions should not be so framed as to suggest that it will be difficult to make adequate compensation for plaintiff's loss or injury.** Thus it is improper to instruct that, if the jury should find for plaintiff, they shall bring in such damages as "will make him whole in dollars as far as possible." ** Instructions with respect to damages should be predicated upon the hypothesis that certain facts are found, or that the jury find for one party or the other.*^ 14 Detroit Daily Post Co. v. Mc- zojTeBride v. St. Paul City Ey. Arthur, 16 Mich. 447. Co., 75 N. W. 231, 72 Minn. 291. 15 Western Union Tel. Co. v. New- 21 Kenyon v. City of Mondovi, 73 house, 6 Ind. App. 422, 33 N. B. 800. N. W. 314, 98 Wis. 50. 16 Powell V. Augusta & S. R. Co., 22 Howell v. Lansing City Electric 77 Ga. 192, 3 S. E. 757. Ry. Co., 99 N. W. 406, 136 Mich. 432. 17 Reeks V. Seattle Electric Co., 104 23 Whitehead v. Pittsburg Rys. Co., P. 126, 54 Wash. 609. 79 A. 240, 230 Pa. 79. 18 Kyd V. Cook, 76 N. W. 524, 56 2* Guinard v. Knapp, Stout & Co., Neb. 71, 71 Am. St. Rep. 661. 70 N. W. 671, 95 Wis. 482. • 19 Lindsey Wagon Co. v. Nix, 67 So. ^e Cannon v. Lewis, 18 Mont. 402, 459, 108 Hiss. 814. 45 P. 572. § 342 INSTRUCTIONS TO JURIES 638 § 342. Use of words expressive of obligation, It is proper to tell the jury that it is their duty, in case they find for the plaintiff, to assess his compensatory damages at such amount as the evidence shows will reimburse him for his injuries,** or that they "should" take certain elements into consideration in assessing such damages.*'' Thus, where the evidence presents the issue, the court should tell the jury, not that they may take into consideration, in awarding damages, future pain and suffering which they should find, to a reasonable certainty, the plaintiff will sus- tain in consequence of his injury, but that they are bound to do so.** So where, in an action for personal injuries, recoverable dam- ages include injuries to the feelings, the jury should be made to understand that compensation therefor is a matter of right, not a matter within their discretion.** § 343. Remote or speculative damages. An instruction as to the measure of damages should confine the compensation to be awarded to injuries which are the proximate result of the act of defendant-,** and a general instruction that the plaintiff is only entitled to such damages as naturally and directly result from the wrongful acts alleged may not, in all cases, be suf- ficient.*^ Under this rule it is error to instruct that the jury may award such damages as they feel the plaintiff is entitled to.^* Where there is testimony as to speculative and possible conse- quences of the act of defendant of which complaint is made, the jury should be instructed not to consider such evidence, except so far as it shows probable results of the injury in question,** and an instruction that the jury cannot base their award upon evidence which is speculative merely as to the amount of damages suffered by plaintiff should point out clearly what the testimony is which the jury should disregard as speculative.'* But, where only proxi- 26 City of Salem v. Webster, 61 'so Birmingham Ry. Light & Power N. E, 323, 192 111. 369 ; Illinois Cent. Co. v. Moore, 56 So. 593, 2 Ala. App. R. Co. V. Cole, 74 So. 766, 113 Miss. 499; Conlon v. Chicago Great West- 896. em Ry. Co., 139 111. App. 555; Etz- Contra, Chicago & N. W. Ry. Co. korn v. City of Oelwein, 120 N. W. V. Chisholm, 79 111. 584. 636, 142 Iowa, 107, 19 Ann. Cas. 999. cc:uinT7TTw: %l: t^.'^'cZ: ,/;f-^^«f - ^^"-- ^^i p. 341, App. 70 ; Galveston, H. & S. A. Ry. ^6 Utah, 519. Co. V. Jenliins, 69 S. W. 233, 29 Tex. 32 Fries v. American Lead Pencil Civ. App. 440. Co., 75 P. 164, 141 Cal. 610. r'^r^^A^f 7oo w-^^Qo^* °™''*'' ^^ »3 Brininstool v. Michigan United oTv, 7 ' -n! ^^"^ Of XT w Rys. Co., 121 N. W. 728, 157 Mich. 172. 2» Gatzow V. Buenmg, 81 N. W. •" ' 1003, 106 Wis. 1, 49 L. E. A. 475, 80 3 4 Curtis v. Curtis, 96 N. W. 32, Am. St. Rep. 1. 134 Mich. 220. 639 BELIEF AWARDED OE PUNISHMENT JNFLICTBD § 346 mate damages are alleged and sought to be proven, it is mislead- ing to charge that remote and speculative damages cannot be re- covered.*^ § 344. Personal injuries aggravating prior diseased condition In a proper case the jury should be informed as to the effect up- on the measure of damages for personal injuries of the existence, prior to the injury, of some disease or disability of the plaintiff,*® and told that the, damages must be limited to such as are the nat- ural and proximate result of the negligence of defendant.*" § 345. Duty of plaintiff to mitigate damages In a proper case the jury should be informed as to the rule of avoidable consequences.** An instruction as to the duty of the plaintiff to mitigate damages should be so framed as not to pre- vent him from recovering for damages which he could not have avoided by the exercise of reasonable care.*' § 346. Permitting double recovery Care must be taken in framing instructions not to permit a dou- ble recovery for a single loss.*** Within this rule an instruction* that, if the jury find for the plaintiff, they may allow such sum as will reasonably compensate him for the injury sustained, if any, and that if the injuries are permanent they may find "in addition" such sum as will be a fair compensation for his diminished ca- 8 5 Tennessee & C. R. Co. v. Dan- 793; Galveston, H. & S. A. Ry. Co. forth. 112 Ala. 80, 20 So. 502. v. Kurtz (Tex. Civ. App.) 147 S. W. 8 8 Taylor Coal Co. v. Miller, 182 658. g. W. 920, 168 Ky. 719. 40 Ga. Western & A. R. Co. v. 8 7 City of Rock Island v. Starkey, Smith, 88 S. E. 983, 145 Ga. 276; 59 N. E. 971, 189 111. 515. Southern Ry. Co. v. Jordan, 59 S. E. 8 8 Ga. Central of Georgia Ry. Co. 802, 129 Ga. 665. V. Madden, 69 S. B. 165, 135 Ga. 205, Ky. Forgy v. Rutledge, 180 S. W. 31 L. R. A. (N. S.) 813, 21 Ann. Cas. 90, 167 Ky. 182 ; Louisville & N. R. 1077 ; Akridge v. Atlanta & W. P. R. Co. v. Moore, 150 S. W. 849, 150 Ky. Co., 90 Ga. 232, 16 S. E. 81. 692. Iowa. White v. Chicago & N. W. Md. John Cowan, Inc., v. Meyer, Ry. Co., 124 N. W. 309, 145 Iowa, 408. 94 A. 18, 125 Md. 450. Ky. Louisville & N. R. Co. v. Ben- Mo. Layeock v. United Rys. Co. nett, 209 S. W. 358, 183 Ky. 445; of St. Louis (App.) 227 S. W. 883. Louisville & N. R. Co. v. Mount, 101 Tex. Huggins v. Carey, 194 S. W. S. W. 1182, 125 Ky. 593. 133, 108 Tex. 358; Gulf, C. & S. F. Neb. Swift & Co. v. ^leise, 89 N. Ry. Co. v. Davis (Civ. App.) 139 S. W. 310, 63 Neb. 739, 57 L. R. A. 147. W. 674; Chicago, R. I. & Q. Ry. Co. Wash. Harvey v. Tacoma Ry. & v. De Bord, 132 S. W. 845, 62 Tex. Power Co., 116 P. 644, 64 Wash. 143. Civ. App. 302 ; Houston & -T. C. R. 8 9 Chicago & E. R. Co. v. Meech, Co. v. Maxwell, 128 S. W. 160, 61 45 N E. 290, 163 111. 305 ; . Donada v. Tex. Civ. App. 80 ; Stamford Oil Power (Tex. Civ. App.) 184 S. W. Mill Co. v. Barnes, 119 S. W. 872, 55 § 347 INSTRUCTIONS TO JURIES 640 pacity to labor, is erroneous." So it is improper to' direct the as- sessment of damages at such sum as will fairly compensate plaintiff for the impairment of his health, for the physical injury he suf- fered, for such physical and mental suffering as resulted, for the expenses of medical treatment, and for the impairment of his abil- ity to earn a living.** On the other hand, an instruction is not objectionable as allowing a double recovery, which, in an action for personal injuries, states that the plaintiff is entitled to recover such damages as he may have sustained from such injuries, and then enumerates the elements of damage which may be taken into consideration ; ** nor is an instruction erroneous under this rule which tells the jury that they should take into consideration, the physical and mental suffering of plaintiff endured up to the time of trial, such mental and physical suffering as it is reasonably probable he will endure in the future, and impaired or diminished future earning capacity reasonably consequent upon his injury after the attainment of his majority.** An instruction that the jury will take into account the mental and physical pain, if any, _ suffered by plaintiff up to the time of the trial, and that will be suffered by him in, the future, if any, as a result of the injuries sued for, the earning capacity lost by him on account of such injuries, if any, and the impairment of his ability to earn money in the future, if any, on account of such injuries, does not permit a double recovery ; *^ neither does an instruction that a plaintiff is entitled to recover such sum as will fully compensate him for the loss of an eye and the disadvantage, disfigurement, and inconven- ience it is reasonably certain will result from such loss ; ** nor does an instruction permitting the jury to assess such damages as will compensate the plaintiff for his injury, together with loss of earn- ings and earning capacity.*" § 347. Pain and suffering It is not improper to instruct that the law does not lay down any fixed rule by which to ascertain damages for pain and mental distress; that being left to the sound judgment of the jury.** Tex. Civ. App. 420; Houston, E. & ** Industrial Lumber Co. v. Bivens, W. T. Ry. Co. V. Adams, 98 S. W. 222, 105 S. W. 831, 47 Tex. Civ. App. 396. 44 Tex. Civ. App. 288. *5 Receivers of Kirby Lumber Co. *i St. Louis S. W. Ry. Co. v. Smith, v. Lloyd, 126 S. W. 319, 59 Tex. Civ. (Tex. Civ. App.) 63 S. W. 1064. App. 489. *2 Galveston, H & S. A. Ry. Co. v. le Hocking v. "Windsor Spring Co., Perry, 82 S. W. 348, 36 Tex. Civ. App. Ill N. W. 685, 131 Wis. 532. 414. 4 7 Garner v. Kansas City Bridge *3 Gulf, C. & S. F. Ry. Co. v. Brown, Co. (Mo. App.) 194 S. W. 82. 40 S. W. 608, 16 Tex. Civ. App. 93. *8 Ala.. Benoit Coal Mining Co. v. 641 RELIEF AWARDED OR PUNISHMENT INFLICTED §348 § 348. Future pain and suffering > Instructions with respect to recovery for future physical suffer- ing* should be so framed as to limit the jury to such pain as is reasonably certain to occur, and not permit them to enter the field of speculation.** An instruction authorizing recovery for pain which the plaintiff "may" suffer in the future is erroneous,^ un- less the injuries of plaintiff are indisputably permanent, as in the case of the loss of bodily members, in which event such a form of instruction cannot be prejudicial,^^ br unless the context shows that the word "may" is used in the sense of "shall" or "must," ®^ or that it is used to imply reasonable probability or reasonable cer- tainty.®* Permitting the recovery of compensation for pain and suf- fering which the evidence shows is "reasonably probable" to result to plaintiff in the future is error in some jurisdictions.®* On the oth- er hand, an instruction limiting recovery for future pain to such as V. Fuller, 72 So. Faught, 77 So. 693, 201 Ala. 169 ; Bir- mingham By. l^dght & Power Co. v. Humphries, 54 So. 613, 171 Ala. 291. Cal. Wiley v. Young, 174 P. 316, 178 Cal. 681. Ga. Southern Bell Tel. & Tel. Co. V. Jordan, 87 Ga. 69, 13 S. E. 202. . 111. Springfield Consol. Ry. Co. v. HoefEner, 51 W. E. 884, 175 111. 634. Tex. St. Louis S. W. By. Co. v. Freedman, 46 S. W. 101, 18 Tex. Civ. App. 553. 4 9 Cal. Saylor v. Taylor (App.) 183 P. 843, 845. Fla. Grainger 462, 72 Fla. 57. Iowa. Williams v. Clarke Coun- ty, 120 N. W. 306, 143 Iowa, 328. Kan. Chicago G. W. Ky. Co. v. Bailey, 59 P. 659, 9 Kan. App. 207. Mass. PuUen v. Boston Elevated Byr Co., 94 N. E. 469, 208 Mass. 356. Mo. Hufford V. Metropolitan St. Ev. Co., 109 S. W. 1062, 130 Mo. App. 638. N. D. York v. Gfeneral Utilities Corp., 170 N. W. 312, 41 N. D. 137. Ohio. Toledo Eys. & Light Co. V. Prus, 7 Ohio App. 412. Okl. Midland Valley E. Co. v. Hal- liard, 148 P. 1001, 46 Okl. 391. R. I. Greenhalch v. Barber, 104 A. 769. Tex. Ft. Worth & D. C. By. Co. v. Taylor (Civ. App.) 162 S. W. 967. Wis. Howard v. Beldenville Lum- ber Co., 108 N. W. 48, 129 Wis. 98. INST.TO JTTKIES 41 50 U. S. (C. C. A. Mo.) Chicago, M. & St. P. By. Co. v. Lindeman, 143 F. 946, 75 C. O. A. 18. CaJ. Melone v. Sierra E. B. Co., 151 Cal. 116, 91 P. 522. Iowa. Eseher v. Carroll County, 141 N. W. 38, 159 Iowa, 627; Ford v. City of Des Moines, 75 N. W. 630, 106 Iowa, 94. Mo. BaUard v. Kansas City, 86 S. W. 479, 110 Mo. App. 391; Schwend v. St. Louis Transit Co., 105 Mo. App. 534, 80 S. W. 40. Wis. Hardy v. Milwaukee St. By. Co., 89 Wis. 183, 61 N. W. 771. Contra, Galveston, H. & S. A. By. Co. V. ^mith (Tex. Civ. App.) 93 S. W. 184. 5' Woodworth v. Iowa Cent. By. Co., 149 N. W. 522," 170 Iowa, 697. 2 Vamer v. State (Ga. App.) 108 S. E. 80; O'Keefe v. United Eys. Co., 101 S. W. 1144, 124 Mo. App. 613 ; Caplin V. St. Louis Transit Co., 89 S. W. 338, 114 Mo. App. 256.' 6 3 Muncie Pulp Co. v. Hacker, 76 N. B. 770, 37 Ind. App. 194 ; Mississippi Cent. B. Co. V. Lott, 80 So. 277, 118 Miss. 816; Halley v. St. Joseph By. Light Heat & Power Co., 91 S. W. 163, 115 Mo. App. 652; Biobertson v. Hammond Packing Co., 91 S. W. 161, 115 Mo. App. 520; Beynolds v. St. Louis Transit Co., 88 S. W. 50, 189 Mo. 408, 107 Am. St. Eep. 360. 64 Eichman v. San Francisco, N. & C. By., 181 P. 769, 180 Cal. 454. § 348 INSTRUCTIONS TO JURIES 642 the jury find from the evidence the plaintiff will suffer is not ob- jectionable within this rule.^® So it is proper to instruct that the jury are to take into consideration pain and suffering reasonably certain to be endured in the future, if any, as a result of the in- jury complained of,®" or pain which plaintiff "may certainly suffer" in the future.®'' So an instruction authorizing recovery for such suffering as the jury may believe the plaintiff in all "probability" will endure in the future is not improper,®* and an instruction au- thorizing recovery for suffering and pain which the jury think probable from the evidence the plaintiff will experience in the fu- ture is not erroneous.®® So an instruction permitting recovery for future pain and suffer- ing which the plaintiff "may" endure as the ordinary and actual , result and as a consequence of the injury sued for has been sus- tained,®** and it is held that there is no substantial difference be- tween the phrases "may reasonably and probably suffer" and "will reasonably and probably suffer." "^ An instruction that, if the jury should find that the plaintiff is entitled to recover, they may take into consideration in making up their verdict the probable amount of pain, the probable loss of time, and the probable amount of expense he would suffer in the future on account of his inju- ries, has been construed to mean that these things are to be taken into consideration, if the jury should find by a fair preponderance of the evidence that the plaintiff would suffer pain and would be ■55 111. Chicago & M. Electric Ry. 57 Du Val v. Boos Bros. Cafeteria Co. V. Ullrich, 72 N. E. 815, 213 111. Co. (Cal. App.) 187 P. 767. 170. "Without conjecture." An in- lowa. Parks v. Town of Laurens, struction that the plaintiff can recover ■ 133 N. W. 1054, 153 Iowa, 567 ; West- fpr pain and suffering which the evi- ereamp v. Brooks, 88 N. W. 372, 115 dence, without conjecture shows that Iowa, 159. lie will sustain in the future is not Ky. Louisville & N. R. Co. v. Roe, ^ubject to criticism, as permitting the 134 S. W. 437, 142 Ky. 456. ^"'^y t° f °'^k -^^^t?^^*^ "^ speculation. Mo. King y. City of St. Louis, g^,^" ^^^^f^^ Pennsylvania Co. v. 157 S. W. 498, 250 Mo. 501; Lackland "-TswtlLny. Metropolitan St. R^. W ^^''f^°n Mn AnnTl4 ' ^o., 156 S. W. 778, 170 Mo. App 351. J- ' rrr ?' T.if «a ^ w " Harris v. 'Brown's Bay Logging Wis. Khegel v. Aitken, 69 N. W. co., 106 P. 152, 57 Wash. 8. 67, 94 Wis. 482, 35 L. B. A. 249, 59 eoKirkham v. Wheeler-Osgood Co., Am. St. Rep. 901. 81 p. geg, 39 Wash. 415, 4 Ann. Cas, See Scally v. W. T. Garratt & Co., 532. 104 P. 325, 11 Cal. App. 138; Ander- ei St. Louis Southwestern Ry. Co. son V. Hurley-Mason Co., 121 P. 815, of Texas v. Garber (Tex. Civ. App.) 67 Wash. 342, Ann. Cas. 1913D, 148. 1O8 S. W. 742. 56 Wiley V. Young, 174 P. 316, 178 See Central Texas & N. W. Ry. Co. Cal. 681; Fuller v. Illinois Cent. B. v. Gibson (Tex. Civ. App.) 83 S. W. Co., 173 N. W. 137, 186 Iowa, 686. 862. 643 RELIEF AWARDED OR PUNISHMENT INFLICTED § 349 subject to loss of time and expenditures in the future on account of his injuries, and, so construed, is proper.^^ § 349. Loss of earnings and impairment of earning capacity The rule for ascertaining the sum to be awarded as damages for future impairment of earning capacity is one of law, which the jury cannot be presumed to know, and the court, therefore, should care- fully instruct, thereon, where the pleadings and evidence authorize such an instruction.** Instructions upon diminished earning capacity may be predicated upon evidence that the plaintiff had some earning capacity at the time of his injury, without evidence of the amount he was earning at that time.** It is proper to instruct that, if the power of plain- iff to earn rhoney in the future has been impaired by his injury, he should be awarded such sums as will compensate him for such loss of power.*® An instruction that the plaintiff may recover any loss of earnings he "may" suffer in the future as the direct and rea- sonable result of his injuries sufificiently requires proof that loss of future earnings is reasonably certain to occur.** An instruction permitting plaintiff to recover concurrently for loss of time and impairment of his earning power is reversible er- ror.*' It may be the duty of the court to call the attention of the jury to thtf fact that the earning capacity of plaintiff will decrease in his declining years.** An instruction that the expectancy of life of plaintiff may be considered in assessing damages for loss of earning capacity should limit the jury to finding the present worth of his earnings.*^ In in.structing as to the present value of the gross amount which the jury may find to fairly represent loss of the plaintiff in earning capacity, the court should be careful to avoid inaccuracy of ex- pression calculated to confuse the jury,'* and the jury should have such guidance as will give them an intelligent understanding of 2 Gallamore v. City of Olj'mpia, 75 so Dean v. St. Louis Transit Co., 99 P. 978, 34 Wash. 379. S. W. 33, 121 Mo. App. 379. 63 Alabama Northern R. Co. v. Meth- st Louisville & N. R. Co. v. Kirby, vin, 64 So. 175, 9 Ala. App. 519 ; 191 S. W. 113, 173 Ky. 399. Bourke v. Butte Electric & Power Co., bs Western & A. R. Co. v. Roberts, 83 P. 470, 33 Mont. 267 ; Missouri, K., 86 S. E. 933, 144 Ga. 250 ; Tennessee, & T. Ry. Co. of Texas v. Beasley, G. & A. R. Co. v. Neely (Ga. App.) 155 S. W. 183, 106 Tex. 160. 103 S. E. 177. 64 Southern Bell Tel. & Tel. Co. v. 6 9 Williams v. Clark County, 120 Shamos, 77 S. E. 312, 12 Ga. App. 463. N. W. 306, 143 Iowa, 328. 6 5 Price V. Northern Electric Ry. to Macon Ry. & Light Co. v. Mason, Co., 142 P. 91, 168 Cal. 173. 51 S. E. 569, 123 Ga. 773. § 349 INSTEUCTIONS TO JURIES 644 what "present worth" means.'^* While, however, the attention of the jury may well be directed to their duty to allow only the present worth of future earnings lost because of the injury sued for," the omission to specifically so instruct in the absence of a request there- for, will not constitute error, if the instructions given do not pre- clude the jury from so estimating such loss.''* If, in an action for personal injuries, there is no testimony show-< ing the earning capacity of plaintiff, or how much it has been dimin- ished by the injury, or his expectancy of life, the defendant will be entitled to an instruction, on request, that the jury cannot guess at any loss of earning capacity, and that damages therefor cannot be awarded.''* § 350. Exemplary damages Where plaintiff's evidence, however slight, presents the question, the court should instruct on punitive damages,'^ and in most ju- risdictions the rule is that, if there be evidence tending to show aggravation, the jury may and should be instructed first as to actual compensation, and then told the circumstances under which . exemplary damages. may be awarded,'* and that, if the act of the defendant was prompted by malice, or was attended by circum- stances of outrage or insult, they may find additional damages, not in all exceeding the amount claimed."' The jury should be further given rules to guide them in deter- mining the amount of such damages,'* and should be told that, in ascertaining the amount, they are to look to the evidence, and are not to exceed the amount claimed in the complaint,'* although it fiPauza V. Lehigh Valley Coal Co., Pa. Keil v. Chartiers Gas Co., 19 80 A. 1126, 231 Pa. 577. A. 78, 131 Pa. 466, 17 Am. St. Rep. 72 Greenway v. Taylor County, 122 823. N. W. 943, 144 Iowa, 332. Tex. King v. Sassaman (Civ. App.) 7s Greenway v. Taylor County, 122 54 g. W. 304 ; Beeman St. Clair Co. N. W. 943, 144 Iowa, 832. v. Caradine (Civ. App.) 34 S. W. 980; 74 Pierce v. C. H. Bidwell Thresher Galveston, H. & S. A. Ky. Co. v. Dun- Co., 116 N. W. 1104, 153 Mich. 323. lavy, 56 Tex. 256. 75 Mobile & a R. Co. V Reeves 80 ^.^^ Haberman v. Gasser, 80 N. ^- ^^^^K?^,^^- ^f^ ^%^f^^ W. 105, 104 Wis. 98. 78 Ky. Neely v. Strong, 217 S. W. ,, ' ,, „.„ .^^ „ 898 186 Ky 540 Wormald v. Hill, 4 Ky. Law Rep. Mich. Baumierv.Autiau,65Mich. li'^ ^""^^ ^•^^^'^^^^U^'^ ^- ^^h qi qi -NT W RSS 255 Pa. 617 ; Greeney v. Pennsylvania MVnn Sneve V. Lunder, 110 N. Water Co., 29 Pa. Super Ct. 136; W. 99, 100 Minn. 5; Seeman v. Fee- 1°*^™^*'°//^,* ^:^^- ^^- ^°- ^- ^'^■ ney, 19 Minn. 79 (Gil. 54). derwood, 64 Tex. 463. Mo. Clark v. Fairley, 30 Mo. App. 7 8 Coleman v. Pepper, 49 So. 310, 335. 159 Ala. 310. o'kl. Atchison, T. & S. F. R. Co. 70 Foster v. Pitts, 38 S. W. 1114, 63 V. Chamberlain, 46 P. 499, 4 Okl. 542. Ark. 387. 645 RELIEF AWARDED OR PUNISHMENT INFLICTED § 350 is held that, in a proper case, an instruction that the jury may find punitive damages in such sum as they "see fit," or "deem proper," not exceeding the amount sued for, is not erroneous.** The court may instruct as to both actual and exemplary dam- ages in one instruction." In one jurisdiction it is considered in- correct to separate what is called actual from what is called exem- plary damage, and here the proper form of instruction is that, if the jury find the defendant has been malicious, the rule of damages will be more liberal, and that, instead of awarding damages only for those matters which are capable of exact pecuniary valuation, they may take into consideration all the circumstances of aggrava- tion — the insults, offended feelings, degradation and so on — and endeavor according to their best judgment, to award such damages by way of compensation or indemnity, as the plaintiff, on the whole, ought to receive and the defendant ought to pay.** In other ju- risdictions, it is considered better practice to submit the two classes of damages in separate instructions ; ** the matter of such separate submission, however, resting in the sound discretion of the trial court.** In most jurisdictions the rule is that the jury should not be t_ld that it is their duty to assess exemplary damages;*® the proper instruction being that they may award them in their discretion, not exceeding the amount claimed in the complaint.** In South Car- olina, however, it is proper to tell the jury that, while they have a discretion in fixing the amount which shall be awarded by way of exemplary damages, they have no discretion to refuse to award any exemplary damages, if a case is made which in law justifies such damages.*^ so Yazoo & M. V. E. Co. v. "Williams, N. C. Hodges v. Hall, 89 S. B. 802, 39 So. 489, 87 Miss. 344. 172 N. 0. 29. \ 81 Groh V. South, 89 A. 321, 121 Temn. Ferguson v. Moore, 39 S. Md. 639. W. 341, 98 Tenn. 342. 82 Bixby V. Dunlap, 56 N. H. 456, 22 c,^. , , Am TiAri 47»i ^^' V*- Duckworth V. Stalnaker, 83 zllifC V. Jennings, 61 Tex. 458. 69 S. E. 850, 68 W. Va. 197; Fink v. s^ottle V. JohnsSn 102 S. E. 769, Thomas, 66 SB. 650, 66 W. Va, 487. 179 N. 0. 426. 19 Ann Cas. 571. 85 in. Pisa V. Holy, 114 111. App. wis. Maria tt v. Western Union 6; City of Salem v. Webster, 95 111. Telegraph Co., 167 N. W. 263, 167 App. 120. Wis. 176. Iowa. Whitev. International Text- ,, ^^ ^^^^^^^ ^ ^^ ^ ^^^^^_ Book Co., 146 N. W. 829, 164 Iowa, .^^^ gg g ^ gg^^ ^31 Ky. 526, 1 L. K. ,; r . -n B. -vr T> n« „ A. (N. S.) 375, 123 Am. St. Rep. 205; K/. . r^"i7l"l^* „^- o?-,rf Tal; Louisville & N. R. Co. v. Ballard, 88 Cottengim, 104 S. W. 280, 31 Ky. Law „ iw 10 S W 429 2 L R A 694 Rep. 871, 13 L. R. A. (N. S.) 624. ^^^ ^2' Z' 1 1, n .1 Mo. Nicholson v. Rogers, 129 Mo. 8t Wilcox v. Southern Ry. Co., 74 136, 31 S. W. 260. S. E. 122, 91 S. C. 71. § 350 INSTRUCTIONS TO JURIES 646 An instruction that the jury "may'' award punitive damages is not improper as an absolute direction,** and the court may instruct, in a proper, case that, if they believe the evidence produced estab- lishes certain facts, then there was as a matter of law gross and wanton negligence, or that certain results would follow which would warrant the jury in awarding such damages.*® An instruc- tion with respect to the consideration by the jury of the wealth of defendant in estimating exemplary damages should say that the jury "may" not that they "should," consider such circumstance."" Instructions on exemplary damages must be based on the plead- ings and evidence, and where the complaint is framed on the the- ory of compensation only it is error to instruct that exemplary damages on any theory may be awarded.®^ So, in the absence of evidence that defendant acted either willfully, wantonly, or reck- lessly, it is error to instruct on exemplary damages,®^ except that the court should charge, on request, that such damages cannot be recovered.®* Where a plaintifl fails to recover actual damages,®* or the jury has found only actual damages,®® the defendant cannot complain of the refusal of the court to instruct as to exemplary damages. § 351. Calling attention to, ad damnum ^ While there are decisions that it is not good practice to men- tion the ad damnum in the instructions,^® the general rule is that an instruction referring to the amount sued for, or limiting the right of recovery to the amount claimed in the declaration, is not error,"' unless the ' instruction is so worded as to suggest giving 8 8 Cincinnati, N. O. & T. P. Ry. Co. A. 1125, 102 Md. 595; Trimmier v. V. Ackerman, 146 S. W. 1113, 148 Ky. Atlanta & C. A. L. Ey. Co., 62 S. E. 435. 209, 81 S. C. 203. 80 Illinois Cent. R. Co. v. Cole, 74 si Myers v. Wright, 44 Iowa, 38. So. 766, 113 Miss. 896. 95 Texas & P. Ry. Co. v. "Watts 00 Thomas v. Williams, 121 N. W. (Tex.) 18 S. W. 312. 148, 139 Wis. 467. , „^ ,^ . oe Illinois Cent. R. Co. v. Hicks, 122 91 Welsh V. Stewart, 31 Mo. App. jj^ ^^^ 3^9. g^j^^. ^ q^ ^ Griffin, ^'^^" r, , T.T- ,, , -,^-r ID Q«i QQ 109 111- -A-PP- 414;' North Chicago St. 02 People V. Nichols, 177 P- 861, 39 ^ q Burgess, 94 111. App. 337. Cal. App. 29 ; Western Union Tel. Co. r^ \ -Z ■,, ka V. Jackson, 49 So. 737, 95 Miss. 471; „ " ^^f- ^f^PS^*^' ^- ^^'""fo'ion Lewis V. Jannou-Poulo, 70 Mo. App. So 60, 170 Ala. 659, Ann. Cas. 1912D, 325; Stephenson v. Brown, 147 Pa. 863. „, ^ . ^ ,,.„„„ „ 300 23 A 443. Ark. St. Louis, I. M. & S. Ry. Co. 93Columbus&W.Ry. Co. V. Bridges, v. Boyles, 95 S. W. 783, 78 Ark. 374. 86 Ala. 448, 5 So. 864, 11 Am. St. Rep. D. C. District of Columbia v. Dur- 58; Alabama G. S. R. Co. v. Arnold, 84 yee, 29 App. D. C. 327, 10 Ann. Cas. Ala. 159, 4 So. 359, 5 Am. St. Rep. 354 ; 675. Wormald v. Hill, 4 Ky. Law Rep. 723 ; 111. Calumet Electric -St. Ry. Co. Baltimore Belt R. Co. v. Sattler, 62 v. Van Pelt, 50 N. B. 678, 173 111. 647 RELIEF AWARDED OE PUNISHMENT INFLICTED § 352 the amount so named,** and it may be error not to limit the re- covery to the amount claimed in the complaint.**® The giving of such a direction in each of a series of instructions has been held ground for reversal, as laying undue stress upon the amount claimed.^ § 352. Effect, as evidence, of motrtality and annuity tables The court should instruct as to the use of the annuity table, where the evidence tends to show that 'the injuries of plaintiff will permanently affect his earning capacity.^. Instructions as to mortality or annuity tables are inappropriate, unless there is some evidence as to the value of the services of plaintiff or his capacity to earn money,* and if the evidence is conflicting as to whether the injuries of plaintiff are permanent an instruction as to such tables should inform the jury that they are not to be used unless the injury is permanent.* When mortality tables are introduced in evidence, it is the duty of the court carefully to guard the effect to be given them by the 70 ; Pioneer Mre-Prooflng Co. v. Clif- ford, 135 111. App. 417. Ind. Baltimore & O. S. W. E. Co. V. Cavanaugb, 71 N. E. 239, 35 Ind. App. 32. Mo. Salmons v. St. Joseph & G. I. Ey. Co., 197 S. W. 35, 271 Mo. 395. N. C. Patillo V. Camp Mfg. Co., 98 S. E. 323, 177 N. C. 156 ; Bradley v. Same, 98 S. E. 318, 177 N. C. 153. Tex. Gulf, C. & S. F. Ey. Co. v. Funk, 92 S. W. 1032, 42 Tex. Civ. App. 490. Va. Chesapeake & O. Ey. Co. v. Carnahan, 86 S. B. 863, 118 Va. 46, judgment affirmed 36 S. Ct. 594, 241 U. S. 241, 60 L. Ed. 979; Southern Ey. Co. V. Grubbs, 80 S. E. 749, 115 Va. 876. 8 8 111. Triggs V. Mclntyre, 74 N. E. 400, 215 111. 369; Central Ey. Co. V. Bannister, 62 N. E. 864, 195 111. 48. Kan. Eoot v. Cudah'y Packing Co., 147 P. 69, 94 Kan. 339. Okl. Seay v. Plunkett, 145 P. 496, 44 Okl. 794. Tex. El Paso Electric Ey. Co. v. Kelly (Civ. App.) 109 S. W. 415 ; "Wil- lis V. McNeill, 57 Tex. 465. Instructions held not improper xvithin rule. Where an instruction, after enumerating the elements of damages which might be considered by the jury. If they found for plain- tiff, charged that the jury might al- low plaintiff such sum as in their judgment, under the evidence and in- structions, would be fair compensa- tion for the injury plaintiff had sus- tained or would sustain, if any, so far as such damages and injuries were claimed and alleged in the first count of the declaration and shown by the evidence, etc., it was not ob-- jectionable as improperly calling the attention of the jury to the amount of the ad damnum of the declaration. Illinois Cent. E. Co. v. Heath, 81 N. E. 1022, 228 111. 312, affirming judg- ment 129 111. App. 143. 9 9 Charles City Plow & Mfg. Co. v. Jones, 71 Iowa, 234, 32 N. W. 280; Blue Grass Traction Co. v. Ingles, 131 S. W. 278, 140 Ky. 488 ; Cumber- land & O. E. Co. V. Wood, 7 Ky. Law Eep. (ahstract) 520; Harmon v. Dick- erson (Mo. App.) 184 S. W. 139 ; Beggs V. Shelton, 155 S. W. 885, 173 Mo. App. 127. 1 Lake Shore & M. S. Ey. Co. v. May, 33 111. App. 366. 2 Western & A. Ey. Co. v. Knight, 83 S. B. 943, 142 Ga. 801. 8 Atlanta, K. & N. Ey. Co. v. Gar- diner, 49 S. E. 818, 122 Ga. 82. i Western & A. E. Co. v. Smith, 88 S. E. 983, 145 Ga'. 276. § 352 INSTRUCTION'S TO JURIES 648 jury. Unless this is done in a very pointed and direct way by the court, the jury may be misled as to the value and weight to be at- tached to this character of evidence.® The court should instruct that mortality tables are not to be accepted as establishing the expectancy of the life of the injured party, but only as an aid in arriving at what that expectancy might be, in view of all the conditions surrounding the particular life, in question,® and where reference is made to the expectancy of life as stated in mortality tables the court should explain that such tables indicate only the expectancy for perfectly sound and healthy lives, or the duration of life of healthy perspns who are insurable risks.' An instruc- tion with respect to the effect of mortality tables is sufficient which states that the resvflt set forth in such tables is not to be taken as a fact in the case, but only as an aid in arriving at what may be the continuation of life, and that the duration of life depends large- ly upon the health, habits, and conduct of the particular person involved.* Where, in a proper case, the court tells the jury that they may use^ the mortality tables, it should also inform them how to es- timate the damage after ascertaining the expectancy of the plain- tiff,® and the court should, on request, instruct the jury that th^ table does not show the duration of ability to earn money, and that it is to be considered with other proof for what it may be worth, considering the state of health of plaintiff, in determining the probable duration of his capacity to earn money.^* § 353. Confining jury to evidence The jury should be informed that they are to be governed by the evidence in assessing damages," and it is error to tell the 5 Pauza V. Lehigh Valley Coal Co., S. W. 944, 113 Ark. 1, Ann. Cas. 80 A. 1126, 231 Pa. 577. 19160, 503 ; St. Louis, I. M. & S. Ry. 8 Cornell v. Great Northern Ry. Co., Co. v. Steed, 151 S. W. 257, 105 Ark. 187 P. 902, 57 Mont. 177; Pauza v. 205. Lehigh Valley Coal Co., 80 A. 1126, Idabo. Holt v. Spokane & P. Ry.- 231 Pa. 577; Rundle v. Slate Belt Co., 35 P. 39, 3 Idaho, 703. Electric St. Ry. Co., 33 Pa. Super. lU. Cleveland, C, 0. & St. L. Ry. Ct. 233. Co. V. Jenkins, 51 N. E. 811, 174 111. ^ Dentnan v. Johnston, 85 Mich. 387, 398, 62 L. R. A. 922, 66 Am. St. Rep, 48 N. W. 565. 296; Threlkeld v. Norwodowski, 202 siseminger v. York Haven Water 111. App. 599; Presley v. Kinlock? & Power Co., 59 A. 64, 209 Pa. 615. Bloomington Tel. Co., 158 111. App. 8 Southern Ry. Co. v. O'Bryan, 45 220 ; Illinois Cent. R. Co. v. Farrell, S. E. 1000, 119 Ga. 147. 86 111. App. 436 ; East St. Louis & C. 10 Illinois Cent. R. Co. v. Houchins, Ry. Co. v. Frazier, 19 111. App. 92. 89 S. W. 530, 121 Ky. 526, 1 L. R. A. Ky. Louisville & N. R. Co. v. Ash- (N. S.) 375, 123 Am. St. Rep. 205. ley, 183 S. W. 921, 169 Ky. 330, L. R. 11 Ark. Weigel v. McCloskey, 166 A. 1916E, 763. 649 RELIEF AWARDED OR PUNISHMENT INFLICTED § 353 jury thM they are the sole judges of the amount of damages which plaintiff .should recover, without also instructing that the dam- ages must be estimated from the evidence.^* An instruction that the jury are to assess such damages as in their judgment under the evidence a party is entitled to is not erroneous under this rule,^* and an instruction is" not erroneous which tells the jury that in making an estimate of damages they shall base their judg- ment upon the evidence in the case, bringing to bear or. such evi- dence their general knowledge and experience which they are sup- posed to possess in common with the generality of mankind." In some jurisdictions a charge on the measure of damages will not be erroneous, because it does not expressly refer to the evi- dence,^* and a defendant is not prejudiced by an instruction which states the correct elements of damage of which there is evidence, although it does not restrict the consideration of the jury to the evidence." Where the evidence does not disclose any definite damages, the court should instruct the jury to find for the plain tifif in nominal damages only." An instruction on damages should limit the jury to a considera- tion of the facts and circumstances in evidence bearing upon the question of damages,** and an instruction directing the jury, in determining the amount of damages, to take into consideration all the facts and circumstances before them, is reversible error where the damages found are very high and apparently excessive." Such an instruction, however, is not a cause for reversal, if there is nothing in the evidence, not relating to damages, which might have influenced the jury to the detriment of the defeated party in fixing the amount of their verdict.*" An instruction which limits the jury to the consideration of the facts and circumstances at- tending the injury sued for is proper.^* 12 Martin v. Johnson, 89 111. 537; Leonard, 96 N. E. 485, 48 Ind. App. Glrdner v. Taylor, 6 Heisk. (Tenn.) 642; Knoefel v. Atkins, 81 N. B. 600, 244. 40 Ind. App. 428; May v. Chicago, 13 Calumet R. Ry. Co. v. Moore, 124 B. & Q. R. Co. (Tex. Civ. App.) 225 lU. 329, 15 N. E. 764. S. W. 660. 14 Springiield Oonsol. Ry. Co. v. H. 19 Levitan v. Chicago City Ry. Co., Hoeffner, 51 N. E. 884, 175 111. 634. 203 111. App. 441. 15 Thomas Madden, Son & Co. v. -an ct. ,. Wilcox, 91 N. E. 933, 174 Ind. 657. , '°T?^f ^^ ^^ ^py.;^"-/^^?^^^'*' 16 Vandalia Coal Cd. v. Temm, 92 IW ?]■ f Pf-^fw City of Chicago y. N. E. 49, 94 N. E. 881, 175 Ind. 524. J^«^ie|i ^^^ !"• 4PP- ^^T; West Ohi- 17 Morrison v. Yancey, 23 Mo. App. cago St. R. Co. r. Dougherty, 110 111. 670. "^PP- ^° ■ 18 Kingan v. Gleason, 101 N. E. 21 Malloy v. City of Chicago, Wd- 1027, 55 Ind. App. 684; Mesker v. 111. App, 593. § 354 INSTRUCTIONS TO JURIES 650 B. Punishment in Criminai, Cases § 354. Necessity and propriety of instructions in general The question of the extent of the punishment of the defendant in a criminal case in the event of his conviction is usually within the province of the court, and a matter with which the jury has nothing to do,^* and where this is the case the court need not in- struct as to tlje penalty to be imposed in case of conviction,^^ this rule applying to an instruction as to the proper course of the jury in case they cannot agree upon the punishment to be inflicted upon a convicted defendant,^* and it is not error in such a case to tell the jury that the matter of punishment is exclusively for the court to determine,*^ such an instruction not being objectionable, as presenting to the jury only the question of the guilt of the de- fendant and not of his innocence.^® Under ordinary circumstances it is not improper, however, to inform the jury what the penalty is for the offense of which the defendant is accused,^' and that, in reading a statute as an ac- curate and concise way of defining the ofiense for which a de- fendant is being tried, the judge necessarily informs the jury what 22 Norris v. State, 74 So. 394, 15 Ala. App. 567 ; State v. Ausplund, 167 P. 1019, 86 Or. 121, judgment aflBrmed on rehearing 171 P. 395, 87 Or. 649. 28 ria. Eggart V. State, 25 So. 144, 40 Fla. 527. Idaho. State v. Altwatter, 157 P. 256, 29 Idaho, 107. Iiid. Currier v. State, 60 N. E. 1023, 157 Ind. 114. Iowa. State v. O'Meara, 177 N. W. 563. kam. State v. Bell, 193 P. 373, 107 Kan. 707. Mo. State V. Eagsdale, 59 Mo. App. 590. '» Neb. Edwards v. State, 95 N. W. 1038, 69 Neb. 386, 5 Ann. Gas. 312; Ford V. State, 46 Neb. 390, 64 N. "W. 1082. N. M. State V. Ellison, 144 P. 10, 19 N. M. 428. N. Y. People V. Jordan, 109 N. Y. S. 840, 125 App. Div. 522. Okl. Colbert v. State, 113 P. 558, 4 Okl. Or. 500. Or. State V. Garrison, 117 P. 657, 59 Or. 440; State v. Daley, 103 P. 502, 54 Or. 514, rehearing denied 104 P. 1, 54 Or. 514. Utah. State v. Inlow, 141 P. 530, 44 Utah, 485, Ann. Gas. 1917A, 741. 2* Brown v. State, 72 Miss. 997, 17 So. 278. 26 Iowa. State v. Powers, 163 N. W. 402, 180 Iowa, 693. Ky. GaudlU v. Commonwealth, 159 S. W. 1149, 155 Ky. 578. Mo. State v. Howard, 118 Mo. 127, 24 S. W. 41 ; State v. Avery, 113 Mo. 475, 21 S. W. 193. Nelj. Glarey v. State, 85 N. W. 897, 61 Neb. 688. Pa. Commonwealth v. Martin, 34 Pa. Super. Ct. 451. 28 Williams v. People, 63 N. E. 681, 196 111. 173. 27 State V. Yourex, 71 P. 203, 30 Wash. 611. In Wisconsin the communication to the jury of the penalties for the crime charged is not considered good practice, although the court does not go so far as to hold that it is neces- sarily a ground for reversal. Bliss v. State, 94 N. W. 325, 117 Wis. 596. 651 BELIEF AWARDED OR PUNISHMENT INFLICTED § 355 the penalty is, does not constitute error, this being merely an in- cidental result of the definition.** Where the court determines the place of confinement of the prisoner, it is error to tell the jury that if he should be found guilty he should be committed to one institution rather than an- other,** and the jury should not be reminded of the discretionary powers of the court in fixing punishment.^" § 355. Rule as to instructions where jury has some power with respect to fixing punishment Where the jury has certain powers and duties with respect to determining the punishment of a convicted defendant, they should be told what such powers are and fully instructed as to their du- ties,'^ or as to the effect of their failure to exercise their powers,** and the court may give such a charge in the absence of any re- quest therefor by the defendant.** Thus where, under the law relating to suspended sentences, the jury are authorized to con- sider whether the accused has borne a good reputation in deter- mining whether, in case of conviction sentence shall be suspended. 2 8 Commonwealth v. Harris, 168 Pa. 619, 32 A. 92, 36 Wkly. Notes Cas. 343. 2 9 State V. McGee, 110 S. W. 699, 212 Mo. 95. aoAbney v. State, 86 So. 341, 123 Miss. 546. 31 Ind. T. Reynolds v. United States, 103 S. W. 762, 7 Ind. T. 51. Iowa. State V. Wilson, 141 X. W. 337, 157 Iowa, 698. Ky. Blair v. Commonwealth, 7 Bush, 227. La. State V. Obregon, 10 La. Ann. 799. dkl. Colbert v. State, 113 P. 561, 4 Okl. Or. 487; Vickers v. ■ United States, 98 P; 467, 1 Okl. Or. 452. Tex. Graham v. State, 163 S. W. 726, 73 Tex. Or. R. 28; Duncan v. State, 29 Tex. App. 141, 15 S. W. 407 ; Washington v. State, 28 Tex. App. 411, 13 S. W. 606; Buford v. State, 44 Tex. 525 ; Cesure v. State, 1 Tex. App. 19. Instructions held insufficient within rule. Under the statute which provides that, if the penalty for a misdemeanor be a fine, "it shall be in the discretion of the jury fixing the amount of the fine to say in its verdict whether, if the fine and costs are not immediately paid or replev- ied, he shall work at hard labor in lieu of imprisonment for nonpayment of the fine," it is not sufficient for the court in instructing the jury to tell them that if they find the defendant guilty they may, In their discretion, say that he shall work at hard labor until the fine and costs shall be raid, but it is the duty of the court to in- struct the jury as to the nature and meaning of the statute. James v. Commonwealth, 16 Ky. Law Rep. (ab- stract) 271. Instructions held not insuffi- cient within rule. An instruction that the jury, on finding defendant guilty, should assess his punishment at imprisonment in the penitentiary for a term of not less than two years or more than seven years, or by im- prisonment in the county jail not ex- ceeding three months, was not mis- leading, for failing to designate the minimum punishment by imprison- ment in the county jail. State v. Rose, T'6 S. W. 1003, 178 Mo. 25. 3 2 Walton V. State, 57 Miss. 533. 3 3Rambo v. State, 162 P. 449, 13 Okl. Cr. 119. Compare Chandler v. State, 105 P. 375, 3 Okl. Or. 254, rehearing denied 107 P. 735, 3 Okl. Cr. 254. § 355 INSTRUCTIONS TO JURIES 652 it is proper for the court to so instruct, as otherwise the jury would not be aware of this phase of the law.** An instruction, however, embodying a statutory provision giving the right to the jury to fix the punishment under certain conditions, may be prop- erly refused, in the absence of any evidence of the existence of such conditions.^^ In some jurisdictions, in the absence of a request therefor, it will usually not be error to fail to give instructions as to the pen- alty,^* and the court may pronounce judgment upon a general verdict of guilty.*' In other jurisdictions, instructions relating to punishm;ent should be given, although not requested.** Where the jury in a criminal case are vested with the power, in case of a verdict of guilty, to fix the punishment of defendant,** or have a discretion as to which of two or more modes of punish- ment shall be imposed,*" any instruction which in any way tends 3 4 Gilbert v. State, 209 S. W. 658, 84 Tex. Cr. R. 616. 85 People V. Elgar, 178 P. 168, 39 Cal. App. 78. 36 Cason V. State, 99 S. E. 61, 23 Ga. App. 540. 3 7 Tudor V. State, 167 P. 341, 14 Obi. Cr. 67. 3 8 State V. Chadwick, 174 S. W. 1144, 131 Tenn. 354. 3 9 EoUings V. State, 34 So. 349, 136 Ala. 126; Leecli v. Waugh, 24 111. 228; Martin v. State, 24 Tex. 61. 40 Ala. Bibb v. State, 84 Ala. 13, 4 So. 275; Skains v. State, 21 Ala. 218 Cal. People r. Ross, 66 P. 229, 134 Cal. 256. Ind. Caiger v. State, 58 N. Ei 1036, 155 Ind. 646; Roberts v. State, 12 N. B. 500, 111 Ind. 340. Ky. Adams v. Commonwealth, 175 S. W. 10, 164 Ky. 148 ; Day v. Com- monwealth, 96 S. W. 510, 29 Ky. Law Rep. 816. La, State v. Melvin, 11 La. Ann. 535. Miss. Mathison v. State, 40 SOi 801, 87 Miss> 739. Mo. State V. Milligan, 70 S. "W. 473, 170 Mo. 215 ; State v. Gilbreath, 130 Mo. 500, 32 S. W. 1023. N. D. State v. Peltier, 129 N. W. 451, 21 N. D. 188 ; State v. Noah, 124 N. W. 1121, 20 N. D. 281. Okl. Williams v. State, 124 P. 330, 7 Okl. Cr. 529. Tex. Petteway v. State, 36 Tex. Cr. R, 97, 35 S. W. 646; Prinzel v. State, 35 Tex. Cr. R. 274, 33 S. W. 350; Hargrove v. State, 33 Tex. Cr. R. 165, 25 S. W. 967; Sanchez v. State, 21 S. W. 364, 31 Tex. Cr. R. 484; Washington v. State, 28 Tex. App. 411, 13 S. W. 606; Irvin v. State, 25 Tex. App. 588, 8 S. W. 681 ; Longenot- tl V. State, 22 Tex. App. 61, 2 S. W. 620. Instructions held erroneous ivithin rule. An instruction, in a prosecution for homicide, that, if the jury found accused guilty, it was no more their moral duty under the law to hang him than to sentence him to the penitentiary. Thomas v. State, 43 So. 371, 150 Ala. 31. A charge, in a capital case, that cases of murder were fearfully numerous in the city ; that a conviction on a charge of mur- der had ceased to be a cause of excite- ment, and had become a common af- fair, of almost daily occurrence; that confinement in the state penitentiary for life was no adequate punishment for the crime of murder ; that juries had no right to qualify their verdict, unless there were mitigating circum- stances ; that convicts in the peniten- tiary seldom served out their term when confined there for life; that a late governor of this state had par- doned almost everybody, and that convicts were always in the hope that, after a few years, they could. 653 RELIEF AWARDED OE PUNISHMENT INFLICTED §355 to swerve the judgment of the jury or to limit its discretion in the exercise of such power will be erroneous, and it is proper to refuse to instruct the jury as to how they shall exercise such a discretion." It has been held, however, in one jurisdiction, al- though not without dissent, that a statute authorizing the jury, on rendering a verdict of guilty in a capital case, to dispense with the death penalty, does not prevent the court from admonishing the jury as to the circumstances under which it will be projier to reduce the punishment to life imprisonment.** Where the punishment provided for an offense is a fine or im- prisonment, it is error to tell the jury that they may assess a fine and imprisonment ; ** and, conversely, where the statute provides that there may be both fine and imprisonment, it is error to in- struct that the penalty may be either fine or imprisonment.** Where a verdict of guilty in a capital case carries the death penalty, unless the jury qualify their verdict by saying that capi- tal punishment shall not be inflicted, instructions calculated to lead the jury to think that, in the absence of- such a qualification, the court will have discretion to impose life imprisonment, are er- . 45 roneous.' appeal to a clement executive; that none but capital punisliinent would put a stop to the practice, now com- mon, of men and women killing; and that he [the judge], on a late visit to the penitentiary, had been told by parties sentenced by Mm tbat they hoped in a short time to come ou|. State V. Melvin, 11 La. Ann. 535. An instruction that if there are circum- stances in the case which would justi- fy a recommendation of life imprison- ment in case of a verdict of murder in the first degree, the jury could make such recommendation. State v, Borneo, 128 P. 530, 42 Utab, 46. An in- struction that, if the jury have a rea- sonable doubt of defendant's guilt, they must acquit, and not resolve the doubt by a mitigation of tbe punish- ment, is error, as tending to influence the jury to Inflict the death penalty, rather than milder punishment. Johnson v. State, 27 Tex. App. 163, 11 a. W. 106. Instructions not improper with- in rnle. An instruction to the effect that It is immaterial from what source malice springs does not inter- fere with or abridge "the prerogative of the jury to recommend imprison- ment for life." Perry v. State, 30 S. B. 903, 102 Ga. 865. A charge that, if defendant ' were found guilty, the punishment should be assessed at im- prisonment in the penitentiary be- tween 2 and 12 years, provided that, if defendant were found not more than 16 years old, and his punish- ment by imprisonment assessed at 5 years or less, he might be confined in the house of correction or reforma- tory instead of the penitentiary, properly submitted the discretionary powers of the jury. Rocha v. State, 41 S. W. 611, 38 Tex. Cr. E. 69. *i People V. Kamaunu, 110 Cal. 609, 42 P. 1090. 12 Winston v. United States, 13 App. D. C. 157; Smith v. United States, 13 App. D. 0. 155 ; Strather v. United States, 13 App. D. C. 132. *a Ball V. Commonwealth, 99 S. W. 326, 30 Ky. Law Rep. 600. a Moody V. State, 30 Tex. App. 422, 18 S. W. 94. 15 Parker v. State, 161 P. 552, 24 Wyo. 491. § 355 INSTRUCTIONS TO JUEIES 654 "Where the court instructs, at the request of the defendant, that the jury may assess the punishment, it should also instruct that in case they find the defendant guilty, and fail to agree upori the punishment, they shall so state in their verdict.*^ The trial court has no authority to give instructions permitting the jury to fix a punishment other than that provided -by the statute.*' An in- struction that the prosecuting attorney is not insisting on the ex- treme penalty attached to the offe^nse charged, or that he is only asking for a fine or imprisonment, is improper.** It is not proper, in some jurisdictions, to tell the jury that their verdict under certain circumstances can be changed by the court in its discretion, as this tends to lessen the responsibility of the jury.** But in other jurisdictions it is not error to inform the jury as the power of the board of pardons with respect to lessen- ing the punishment that may accompany a verdict of guilty,'* and in such jurisdictions it is not improper to tell the jury, in a prosecution for a capital offense, that if they award life imprison- ment the board of pardons may set their sentence at nought.-''^ § 356. Recommendation to mercy or of mitigation of punishment It is proper to instruct the jury as to the effect upon the pun- ishment of a convicted defendant of any recommendation to mercy which they may make ; ^* such an instruction not being erroneous,, as tending to induce a compromise verdict.'* Ordinarily, in the absence of a request therefor, an instruction that the jury in case of conviction may recommend the defendant to mercy is not necessary,®* and there are decisions that tha court is not bound in a capital case to instruct, unless so requested, that the jury, in case of conviction, may avert the infliction of the death penalty by recommending life imprisonment.'' In other jurisdic- 4nOelke V. State, 133 P. 1140, 10 BiWebstfer v. State, 36 So. 584, 4T Okl Cr. 49. Fla. 108 ; Milton v. State, 24 So. 47 Beck V. State, 166 P. 753, 14 Okl. 60, 40 Fla. 251 ; State v. Adams, 4T Cr. 3. S. E. 676, 68 S. O. 421; State v. Dod- 4 8 Love V. State, 158 S. W. 532, 71 son, 16 S. C. 453 ; Honeycutt v. State, Tex. Cr. R. 259. 8 Baxt. (Tenn.) 371. 48 State V. Noah, 124 N. W. 1121, " esKeech v. State, 15 Fla. 591; 20 N. D. 281. State v. Beatty, 41 S. B. 434, 51 W so State V. Rombolo, 99 A. 434, 89 Va. 232. N. J. Law, 565. Sufficiency' of request. It was 51 State V. Carrlgan, 108 A. 315, 93 error, In a murder case, to refuse to N. J. Law, 268. instruct that the jury might punish s2 Lovett V. State, 30 Fla. 142, 11 murder in the first degree with either So. 550, 17 L. R. A. 705 ; State v. Car- death or confinement in the peniten- rigan, 108 A. 315, 93 N. J. Law. 268. tiary, though the request was not 3 Sterling v. State, 89 Ga. 807, 15 made until after the jury had an- S. E. 743. nounced its simple verdict of guilty, 655 EELIEF AWARDED OR PUNISHMENT INFLICTED § 356 tions the rule is that, where a recommendation to mercy makes a lighter punishment obligatory under the statute, the court must charge that the jury have the right to recommend to mercy, whether so requested or not.** Where the statute provides that the jury may recommend that a convicted defendant shall be punished as for a misdemeanor, which recommendation shall be effectual, if approved by the court, the jury should be informed of such provision,*' and under such a statute the court may** and should instruct, whether with or' without request,*^ that the recommendation of the jury will not be effective unless it has the approval of the court, and the omis- sion of the court to instruct the jury as to their right to make a recommendation which may, in the discretion of the court, lessen the punishment, is reversible error, where, in the absence of such a recommendation, only the highest penalty can be imposed.** Where a recommendation to mercy can have no effect upon the sentence of the court, it is error to simply tell the jury that they can indorse on their verdict such a recommendation, without telling them of its ineffectiveness.*^ But where the court has correctly informed the jury as to their right to recommend mercy and as to the effect of such recommendation, it is not the diity of the court to call the attention of the jury to a statutory provi- sion that the board of pardons shall not be at liberty to recom- mend a convict for pardon, except upon- proof of his innocence beyond a reasonable doubt.** and though, before the jury went out, State, 53 S. B. 803, 125 Ga. 4, 5 Ann. the court suggested to counsel for de- Oas. 310. fendant that it give that instruction, »» Calton v. Utah, 130 U. S. 83, 9 and counsel stated that it was not S. Ct. 435, 32 L. Ed. 870. necessary at that time. State v. si Hackett v. People, 8 Colo. 390, Cobbs, 40 W. Va. 718, 22 S. B. :310. 8 P. 574. 6 6 Harris v. State, 59 Ga. 635. Warning jiiiy tliat recommen- 5 7 Ledford v. State, 91 S. B. 924, dation will not relieve defendant 19 Ga. App. 610; Glover v. State, 67 *rom imprisonment. Where, in a S. E. 687, 7 Ga. App. 628; Taylor v. trial for assault with Intent to kill, State, 35 S. B. 161, 110 Ga. 150 ; John- the jury ask if they can recommend son V. State, 25 S. E. 940, 100 Ga. 78. to mercy, and defendant requests a 6 8 Benton v. State, 71 S. B. 8, 9 Ga. charge that, notwithstanding any rec- App. 291; Green v. State, 71 Ga. 487. ommendation to mercy, the punish- es'winder v. State, 88 S. E. 1003, ment would still require confinement 18 Ga. App. 67; Braxley v. State, in the penitentiary, the court suffi- 86 S. B. 425, 17 Ga. App. 196; ciently charges them by reading the Bragg V. State, 83 S. B. 274, 15 Ga. statute providing that the court shall App. 368 ; Frazier v. State, 83 S. E. determine the punishment, paying due 273, 15 Ga. App. 365 ; Taylor v. State, respect to any recommendation which 81 S E. 372, 14 Ga. App. 492 ; Echols the jury may make. Eogarty v. State, V. State, 34 S. E. 1038, 109 Ga. 508. 80 Ga. 450, 5 S. E. 782. Contra, Gaskins v. State. 76 S. E. ez state v. Schiller, 70 N, B. 505, 777, 12 Ga. App. 97; Lingerfelt v. 70 Ohio St. 1. § 356 INSTRUCTIONS TO JUEIES 656 Instructions should not in any way embarrass or limit the jury in the exercise of their power to recommend a mitigation of pun- ishment.** An instruction is therefore erroneous which tends to influence the exercise by the jury of discretion given to it by a statute to recommend imprisonment for life upon a conviction of 6 3 Ga. Duncan v. State, 80 S. E. 317, 141 Ga. 4 ; Cohen v. State, 42 S. E. 781, 116 Ga. 573; Hill v. State, 72 Ga. 181. S. C. State V. Bethune, 67 S. E. 466, 86 S. C. 143. ' Tex. Morris v. State, 198 S. W. 141, 82 Tex. Or. R. 13. •Utah. State v. Newhinney, 134 P. 632, 43 Utah, J35, L. R. A. 1916D, 590, Ann. Gas. 19160, 537; State v. Thome, 126 P. 286, 41 Utah, 414, Ann. Gas. 1915D, 90; State v. Thome, 117 P. 58, 39 Utah, 208. Iiimitation o£ discretion of jury by state of evidence. Under the Ohio statute, in determining whether to recommend mercy, the jury should be guided by the evidence or lack of evidence, as the case may be as dis- closed upon the trial, and an instruc- tion to this effect is proper. Howell V. State, 131 N. E. 70Q; Rehfeld v. State, 131 N. E. 712. Instmctions held not erroneons within rule. In a prosecution for murder, the remarks of a trial judge, containing a mere warning for thor- ough consideration of the facts and circumstances by the jury, before rec- ommending the defendant to the mercy of the court, are not prejudi- cial. State V. Bates, 69 S. E. 1075, 87 S. C. 431. An instruction that, "if you think this is a case in which you would be justified in recommending a life imprisonment in the event of your finding the defendant guilty, you have a right to make such recommenda- tion, as it is for you to say, in the event of your finding the defendant guilty, whether the facts and circum- stances in this case warrant you in making such recommendation. It is all a question for you, under the law and the evidence" — is not ground for a new trial, but it would be better to omit the words "justified" and "war- .rant," and to substitute in their stead language leaving the jury free to dis- pose of the question of recommending or not recommending life imprison- ment, without any intimation from the bench as to what should ' control or influence them in reaching a con- clusion upon this matter. Cyrus v. State, 29 S. E. 917, 102 Ga. 616. A charge on a trial for murder that it was within the province of the jury, if they found defendant guilty, to rec- ommend that he be punished by im- prisonment for life, that there was no rule by which they were to be guided in making the recommendation, and that it was entirely for their deter- mination, is not open to the criticism that it was . calculated to prejudice the jury and prevent them from rec- ommending that defendant be punish- ed by imprisonment. Thomas v. State, 59 S. E. 246, 129 Ga. 419. A conviction for keeping a tippling house open on Sunday will not be reversed merely because the judge told the jury that the case was one not punishable by confinement in the penitentiary, and not one where they would be authorized to recommend to mercy, as the charge did not forbid the jury to make the recommenda- tion. Hussey v. State, 69 Ga. 54. Where, in a murder case, the court charged that, if they found defendant guilty of murder, they might recom- mend that he be punished by impris- onment, and if they so recommended, that had to be the penalty; that, if they failed to recommend, defendant might be hung, or, if they recommend- ed that he be imprisoned for life, then that was the penalty fixed by law; and that it was a matter entirely with th^m, and of which they had absolute control, it was held that it was not error to also charge "that the jury have nothing to do with the conse- quences of the verdict." Marshall v. State, 74 Ga. 26. 657 KBLIBF AWARDED OR PUNISHMENT INFLICTED § 356 murder in the first degree.®* An instruction that the responsi- bility is on the jury to recommend or forbear to recommend im- prisonment for life, in place of death, and that to do what they think right and proper in that regard rests with them and their consciences is proper,®^ and an instruction that, while it is always competent for the jury to recommend to mercy, it is not incum- bent on the judge to observe such recommendation, is not erro- neous, as an intimation that the case against the accused is a bad one.®* ^ Instructions with regard to the power of the jury to recommend a convicted defendant to mercy should ordinarily follow the lan- guage of the statute.®' 64 state V. Martin, 106 A. 385, 92 88 State r. Jones, 54 S. B. 1017, 74 N. J. Law, 436. S. C. 456. 86 Fry V. State, 81 Ga. 645, 8 S. B, e? Newton v. State, 21 Pla. 53. 308. Inst.to Jukies— 42 §357 INSTRUCTIONS TO JURIES 658 CHAPTER XXVIII DEFINITION OR EXPLANATION OF TERMS § 357. Propriety and necessity of defining terms having a technical or legal meaning. 358. Necessity of defining ofCense of which defendant is accused. 359^Necessity of definition of legal phrases in common use. 860: Defining words of witness. Necessity of defining ordinary words having no special tecjinical meaning. 362. Necessity of request for definition. Effect of failure to give definition. Sufficiency of definition or explanation of terms. SufBciency of definition of criminal offense. 861. 363 364, 365, § 357. Propriety and necessity of defining terms having a tech- nical or legal meaning Where technical or legal terms are used in an instruction, or where ordinary words having a technical or legal meaning in the connection in which they are used are so included in a charge, the court may^ and should, at least upon request," define such words and phrases, and' requests for instruction which contain words or ■ Wickwire v. Webster City Savings Bank, 133 N. W. 100, 153 Iowa, 225; International & G. N. R. Co. v. Cruse- turner, 98 S. W. 423, 44 Tex. Civ. App. 181. 2 Ala. Chambers v. Morris (Sup.) 42 So. 549. Ga. Holmes v. Clisby, 48 S. E. 934, 121 Ga. 241, 104 Am. St. Rep. 103; Roberts v. State, 40 S. E. 297, 114 Ga. 450. 111. People V. Blevins, 96 N. B. 214, 251 111. 381, Ann. Cas. 1912C, 451; Hayner v. People, 72 N. E. 792, 213 III. 142; Moshier v. Kitchell, 87 111. 18 ; Chicago & A. R. Co. v. Pelligreen, 65 111. App. 333. Iowa. Long v. Ottumwa Ry. & Light Co., 142 N. W. 1008; State v. McKinnon, 138 N. W. 523, 158 Iowa, 619. Ky. W. G. Duncan Coal Co. v. Thompson's Adm'r, 162 S. W. 1139, 157 Ky. 304; Romans v. McGinnis, 160 S. W. 928, 156 Ky. 205; Taylor V. Commonwealth, 75 S. "W. 244, 119 Ky. 731, 25 Ky. Law Rep. 374; Mc- Arthur v. City of Dayton, 42 S. W. 343, 19 Ky. Law Rep. 882. Mich. Derham v. Derham, 83 N. W. 1005, 125 Mich. 109. Mo. MuUenix v. Briant (App.) 198 S. W. 90; Strother v. Metropolitan St. Ry. Co. (App.) 183 S. W. 657; Beggs V. Shelton, 155 S. W. 885, 173 Mo. App. 127 ; E. R. Darlington Lum- ber Co. V. Pottinger, 147 S. W. 179, 165 Mo. App. 442. Mont. First Nat. Bank v. Carroll, 88 P. 1012, 35 Mont. 302. Ohio. Jordan v. State, 13 Ohio Cir. Ct. R. 471, 7 O. 0. D. 133. Or. State v. Hogg, 129 P. 115, 64 Or. 57. Pa. Commonwealth v. Ronello, 96 A. 826, 251 Pa. 329; Xanosh v. Earley, 67 Pa. Super. Ct. 585. Tex. Hightower v. State, 165 S. W. 184, 73 Tex. Cr. R. 258; Davis v! Hardwick, 94 S. W. 359, 43 Tex. Civ. App. 71 ; Swain v. State, 86 S. W. 335, 48 Tex. Or. R. 98 ; Vann v. State, 77 S. W. 813, 45 Tex. Cr. R. 431, 108 Am. St. Rep. 961; Matthews v. Boydstun (Civ. App.) 31 S. W. 814; Jolly v. State, 19 Tex. App. 76; Goode v. State, 16 Tex. App. 411. 659 DEFINITION OE EXPLANATION OF TEEMS §357 phrases of such description without defining them are properly- refused.* It is error to use words in a charge in a different sense from the popular one without explanation.* That some of the jury may be able to understand technical terms used will not dis- pense with the necessity of their definition.^ Thus it is proper, or may be necessary, to define the words "actual notice,"^ "ac- tual possession,"' "abandonment,"* "accident,"* "adequate cause,"" "apparent authority,"' ^^ "approved" in certain connec- tions,^^ "arbitrary prices,"** "cooling time,"" "constructive pos- session " 15 'corpus delicti," " "crossing," "deliberately," 18 "deliberation and premeditation,"*^ "delivery," *" "extraordinary flood," ^* "heat of passion," ^^ "implied malice," ** "independent 3 Thomas v. Presbrey, 5 App. D. C. 217; Wilson v. Danville Collieries Coal Co., 106 N. E. 194, 264 111. 143, affirming judgment 184 111. App. 180 ; Momence Stone Co. v. Turrell, 68 N. E. 1078, 205 111. 515, affirming judgment 106 111. App. 160; Quirk v! Bradley Contracting Co. (Sup.) 161 N. Y. S. 296, 97 Misc. Rep. 368. 4Mullins V. Cottrell, 41 Miss. 291. 6 State V. Clark, 47 S. B. 36, 134 N. C. 698. 6 Ware v. Senders, 120 111. App. 209. 7 Mayes v. Kenton, 64 S. W. 728, 23 Ky. Law Rep. 1052. 8 Union Scale Co. v. Iowa Ma- chinery & Supply Co., 113 N. W. 762, 136 Iowa, 171. 9 Barnett & Record Co. v. Schlapka, 70 N. B. 343, 208 111. 426, affirming judgment 110 111. App. 672 ; Bbert v. Metropolitan St. Ry. Co., 160 S. W. 34, 174 Mo. App. 45. In Illinois an instruction has been held not erroneous in failing to define the term "accident" employed therein. Larsen v. Chicago Union Ttaction Co., 131 111. App. 286. 10 Robinson v. State, 156 S. W. 212, 70 Tex. Cr. R. 81 ; Beckham v. State (Tex. Cr. App.) 69 S. W. 534. 11 Emerson - Brantingham Imple- ment Co. V. Roquemore (Tex. Civ. App.) 214 S. W. 679. 12 Pace V. Cochran, 86 S. E. 934, 144 Ga. 261. 13 Kansas City, N. & Ft. S. R. Co. V. Dawley, 50 Mo. App. 480. 14 Kannmacher v. State, 101 S. W. 238, 51 Tex. Cr. B. 118. 15 People V. Csontos, 114 N. E. 123, 275 lU. 402. 16 People V. Frey, 131 P. 127,' 165 Cal. 140. 17 Texas & N. O. R. Co. v. Harring- ton (Tex. Civ. App.) 209 S. W. 685. 18 State V. Garrett, 207 S. W. 784, 276 Mo. 302 ; Holt v. State, 89 S. W. 838, 48 Tex. Cr. R. 559; Mahon v. State, 79 S. W. 28, 46 Tex. Cr. R. 234. 19 State V. Foster, 41 S. E. 284, 130 N. C. 666, 89 Am. St. Rep. 876. Defining words separately. Though the words "premeditated" and "deliberation" have not exactly the same meaning, if an instruction on murder in the first degree is in words which express both ideas, and fully explain them to the jury, it is correct, though the coru-t may not define each word separately. State v. Bxum, 50 S. B. 283, 138 N. C. 599. 20 Archambeau v. Edmunson, 171 P. 186, 87 Or. 476. Omission to define not ground for new trial. Mere failure of the court, in instructing the jury, to give the definitions of such words as "de- livery" and "delivered," is not cause for a new trial. Cordele Sash, Door & Lumber Co. v. Wilson Lumber Co., 58 S. E. 860, 129 Ga. 290. 21 Sloss-Sheffleld Steel & Iron Co. V. Mitchell, 52 So. 69, 167 Ala. 226. 2 2 State V. Skaggs, 60 S. W. 1048, 159 Mo. 581 ; State v. Reed, 154 Mo. 122, 55 S. W. 278; .Stat6 v. Strong, 153 Mo. 548, 55 S. W. 78. Compare State v. Rose, 44 S. W. 329, 142 Mo. 418. 2 3 Connell v. State, 81 S. W. 746, 46 Tex. Cr; R. 259. § 357 INSTRUCTIONS TO JURIES 660 contractor,"^* "inherent vice,"*^ "intervening cause," *« "last clear chance," ^^ "malice," ** "nuisance," *® "prescription,'' ** "probable cause," *^ "prompt and proper treatment," ^ "propor- tionate to the pecuniary injury," ** "reasonable," ** "requirements of the law," *^ "residence," ** "satisfied," *'" "unavoidable acci- dent," ** "undue influence," ** "value in money," ** "warranty," ** "willful," or "willfully,"*^ "without just cause,"** and "wrongful and without justifiable cause."** 2* Overhouser v. American Cereal Co., 105 N. W. 113, 128 Iowa, 580. 2 5 Ft. Worth & D. C. Ry. Co. v. Berry (Tex. Civ. App.) 170 S. W. 125. 28 Rooney v. Levinson, 111 A. 794, 95 Conn. 466. 27 Rooney v. Levinson, 111 A. 794, ^ Conn. 466. 2 8 Calms V. Moore, 69 So. 579, 194 Ala. 102. Sufficient definitions of malice. An instruction that malice includes anger, hatred, and revenge, and every other unlawful motive, and denotes an action flowing Jrom a wicked mind, and that the malice is inferred from any deliberate or cool act, however sudden, which shows a malignant heart, is not erroneous. Parsons v. People, 75 N. B. 993, 218 111. 386. See People V. Daniels, 34 P. 283, 4 Cal. Unrep. 248. An instruction that "mal- ice is a condition of miad which shows a heart regardless of social duty, and fatally bent on mischief, the existence of which Is inferred from acts committed or words spo- ken," is correct. Bramlette v. State, 21 Tex. App. 611, 2 S. W. 765, 57 Am. IBep. 622. "Malice aforethonght." Failure to define malice aforethought is not error where the court defines both ex- press and implied malice. Hatcher v. State, 65 S. W. 97, 43 Tex. Cr. R. 28^ ; Hamp. V. State (Tex. Or. App.) 60 S. W. 45; Bean v. State (Tex. Cr. App.) 51 S. W. 946; Moore v. State (Tex. Cr. App.) 50 S. W. 355. An instruc- tion that the words "with malice," as used in the instruction, denoted a wrongful act Intentionally done, and that the term "aforethought," as used, meant a predetermination to do the act, however suddenly or recently forrded before the act was done, sufli- clently defined "malice aforethought," especially when taken In connection with another instruction defining felo- niously" as meaning to proceed from an evil heart or purpose done with the deliberate intention to commit a crime, though the definition of malice aforethought did not require that the act be done "without legal excuse." Potter V. Commonwealth, 134 S. W. 462, 142 Ky. 378. 29 Kirchgraber v. lioyd, 59 Mo. App. 59. 3 Cobb V. Covenant Mut. Ben. Ass-n, 158 Mass. 176, 26 N. E. 230, 10 L. R. A. 666, 25 Am. St. Rep. 619. 81 Atchison, T. & S. F. Ry. Co. v. Woodsoft, 100 P. 633, 79 Kan. 567. 32 Dunnagan v. Briggs, 154 S. W. 428, 170 Mo. App. 691. ss Merchants' & Planters' Oil Co. v. Bums, 74 S. W. 758, 96 Tex. 573, re- versing Judgment (Civ. App.) 72 S. W. 626. 34 Coblentz v. Putifer, 125 P. 30, 87 Kan. 719, 42 L. R. A. (N. S.) 298. 35 City of Chicago v. Fields, 139 111. App. 250. 33 Murray v. Gelser Mfg. Co., 99 P. 589, 79 Kan. 326. 87 Riggs V. Thorpe, 69 N. W. 891, 67 Minn. 217. 8 8 Leiand v. Empire Engineering Co., 108 A. 570, 185 Md. 208. so Gwlnn v. Hobbs, 118 N. E. 155. *o McLaughlin v. United Railroads of San Francisco, 147 P. 149, 169 Cal. 494, L. R. A. 1915B, 1205, Ann. Cas. 1916D, 337. *i Flint- Walling Mfg. Co. v. Ball, 43 Mo. App. 504. *2 Carney v. State, 175 S. W. 155, 76 Tex. Cr. R. 379; Roberts v. State, 43 Jordan v. J. R. Webber Moulding Co., 72 Mo. App. 325. 44 Kepley v. Park Circuit & Realty Co. (Mo. App.) 200 S. W. 750. ^61 DEFINITION OR EXPLANATION OF TERMS §357 Where the question of negligence is submitted to the jury, the court is required in some jurisdictions and under some circum- stances to define the terms "negligence," ''ordinary care," "reason- able care," "concurrent negligent acts," etc.,*® and may properly refuse instructions which do not include such a definition.** There is, however, as is implied in the foregoing statement, no inflexible rule that compels the definition of such terms in all cases,*' and 143 S. W. 614, 65 Tex. Cr. K. 62; Dyrley v. State (Tex. Cr. App.) 63 S. W. 631; Wheeler v. State, 23 Tex. App. 598, 5 S. W. 160; Sparks v. State, 23 Tex. App. 447, 5 S. W. 135. Sufficient definitions. An instruc- tion that the term "willful" as used in the indictment signifies "without reasonable ground for believing the act to be lawful, or a reckless disre- gard of the rights of others," is cor- rect. Finney v. State, 29 Tex. App. 184, 15 S. W. 175. In a prosecution lor obstructing a public road, the defi- nition of "willful" by the court in his charge that by the term it was meant that defendant knew at the time of the alleged obstruction that the road "was public, and that the obstruction was placed, if it was obstructed, with an evil intent. Howard v. State, 216 S. W. 168, 86 Tex. Cr. R. 288. On a prosecution for perjury, a definition of "willfully" as meaning that the act of the defendant was done with an ■evil intent or without reasonable grounds to believe the act to be lawful was correct. Clay v. State, 107 S. W. 1129, 52 Tex. Or. E. 555. Where the instructions defined the word "willfully" as meaning with evil in- tent or without reasonable grounds for believing the act to be lawful, it was not necessary to give any other instruction defining the word, nor was it necessary to carry the definition forward in each paragraph of the in- structions wherein the word was used. Haynes v. State, 169 S. W. 1059, 71 Tex. Cr. R. 31. ( Harmless error. Where, in a prosecution for perjury, the charge covered all the elements of the crime, and was that the statement must be willfully and deliberately made, and not through inadvertence, mistake, or •during agitation, to which no objec- tion was taken until on motion for new trial, error in not defining the word "willfully" was harmless. Gar- za V. State (Tex. Cr. App.) 47 S. W. 983. *5 TJ. S. Denver & R. G. R. Co. v. Norgate, 141 F. 247, 72 C. C. A. 365, 6 L. R. A. (N. S.) 981, 5 Ann. Cas. 448. Kan. City of Junction City v. Blades, 1 Kan. App. 85, 41 P. 677. Ky. Chesapeake & O. Ry. Co. v. Wamock's Adm'r, 150 S. W. 29, 150 Ky. 74. Mo. Foy V. United Rys. Co. of St. Louis, 226 S. W. 325, 205 Mo. App. 521 ; Gardner v. Metropolitan St. R. Co., 152 S. W. 98, 167 Mo. App. 605; Mather v. Metropolitan St. Ry. Co., 148 S. W. 383, 166 Mo. App. 142 ; Ray- bourn V. Phillips, 140 S. W. 977, 160 Mo. App. 534 ; Magrane v. St. Louis & Suburban Ry. Co., 81 S. W. 1158, 183 Mo. 119. Tex. Cleburne Electric & Gas Co. V. McCoy (Civ. App.) 149 S. W. 534; Galveston, H. & S. A. Ry. Co. v. De Castillo (Civ. App.) 83 S. W. 25. Wis. Terkes v. Northern Pac. Ry. Co., 88 N. W. 33, 112 Wis. 184, 88 Am. St. Rep. 961. *6 Coney Island Co. v. Dennan (C. C. A. Ohio) 149 F. 687, 79 C. C. A. 375 ; Brilliant Coal Co. v. Barton, 81 So. 828, 203 Ala. 38. "Great degree of care." An in- struction that if plaintifE knew of the existence of a defect in a street, or by ordinary care might have known thereof, it was her duty while travel- ing on a dark night to use a great degree of care to avoid the defect, and that if she had exercised due care she would have prevented the accident, was properly refused, because refer- ring to a great degree of care, without defining it. Roberts v. City of Pied- mont, 148 S. W. 119, 166 Mo. App. 1. *7 Mo. Malone v. St. Louis-San Francisco Ry. Co., 213 S. W. 864, 202 Mo. App. 489; Anderson v. American Sash & Door Co. (App.) 182 S. W. 819 ; §357 INSTRUCTIONS TO JURIES 662 a definition of "negligence" is not necessary, where negligence is not the gist of the action,**-nor where the jury are practically tolcl what facts could or would constitute negligence.*^ While the term "proximate cause" is held not to be so techni- cal as to make the failure to define it in an instruction necessarily error,^** and in some jurisdictions the rule is that it need not be defined,®^ in other jurisdictions a definition of such phrase should ordinarily be given, at least on request.^^ The court is not required to give a definition which would be of no value to the jury,** and therefore it need not define technical words, if they are otherwise made definite and intelligible to the jury,^* or where the evidence is of such a character that the jury cannot be misled by the failure to define such terms.*® § 358. Necessity of defining offense of which defendant is ac- cused The general rule is that in a criminal prosecution the judge should define the offense charged, stating the essential elements there;pf, either in the language' of the statute or in appropriate words of his own,*® and an instruction which leaves to the jury the Richmond v. Missouri Pae. Ry. Co., 144 S. W. 168, 162 Mo. App. 422; Main v. -Hall, 106 S. W. 1099, 127 Mo. App. 713 ; Warder v. Henry, 117 Mo. 530, 23 S. W. 776. Tex. American Cotton Co. v. Smith, 69 S. W. 443, 29 Tex. Civ. App. 425. 48 Kieselhorst Piano Co. v. Porter, 171 S. W. 949, 185 Mo. App. 676. *9 St. Clair Mineral Springs Co. v. City of St. Clair, 96 Mich. 463, 56 N. W. 18 ; Burns v. United Rys. Co. of St. Louis, 158 S. W. 394, 176 Mo. App. 330 ; Landrum v. St. Louis & S. F. R. Co., 112 S. W. 1000, 132 Mo. App. 717. 50 Kleet V. Southern Illinois Coal & Coke Co., 197 111. App. 243. 51 Burk V. Creamery Package Mfg. Co., 102 N. W. 793, 126 Iowa, 730, 106 Am. St. Rep. 377; City of Louisville V. Arrowsmith, 140 S. W. 1022, 145 Ky. 498. 52 r. S. (C. C. A. Pa.) Delaware & Hudson Co. v. Ketz, 233 P. 31, 147 C. C. A. 101. 111. Bagaini v. 0onk Bros. Coal & Coke Co., 199 111. App. 76 ; Swift & Co. V. Rennard, 128 111. App. 181. Mo. Mitchell v. Violette (App.) 203 f?. W. 218 ; Turnbow v. Dunham, 197 S. W. 103, 272 Mo. 53; Mulderlg v. St. Louis, etc., R. Co., 94 S. W. 801, 116 Mo. App. 655. Request necessary. Instructions using the word "proximate" in refer- ence to the cause of injury need not, in the absence of request, define it; it being an English word with a com- monly understood meaning. Wolters V. Chicago & A. Ry. Co. (Mo. App.> 193 S. W. 877. 53 Karkowski v. La Salle County Carbon Coal Co., 93 N. E. 780, 248 111. 195 ; Pitts V. State, 132 S. W. 801, 60 Tex. Cr. R. 524. 5* Western Union Telegraph Co. v. Brasher, 124 S. W. 788, 136 Ky. 485 ; White V. Madison, 83 P. 798, 16 Okl. 212 ; Houston, E. & W. T. Ry. Co. v. Vinson (Tex. Civ. App.) 38 S. W. 540. 5 6 State V. Jacobs, 54 S. W. 441, 152 Mo. 565 ; Vasquez v. State, 171 S. W. 1160, 74 Tex. Cr. R. 491. 5 6 Ga. Holt V. State, 62 S. E. 992, 5 Ga. App. 184. Ind. Welty v. State, 100 N. B. 73, 180 Ind. 411. Kan. State v. Lynch, 121 P. 351, 86 Kan. 528. Mich, People v. Prinz, 111 N. W. 739, 148 Mich. 307. Mo. State v. Reakey, 62 Mo. 40. Tex. Bailey v. State (Cr. App.) 30 663 DEFINITION OR EXPLANATION OF TERMS 359 determination of the elements of the offense is properly refused.*'' § 359. Necessity of definition of legal phrases in common use The uriexplained use of the words "burden of proof" is not im- proper,** although it is also proper to refuse instructions which fail to define such phrase.*' It is not ordinarily necessary to de- fine "preponderance," or "preponderance of the evidence," ^^ in the absence of a request for an instruction on the subject.®^ So it is ordinarily not error to fail to define the words "felony" or "felo- niously," ^^ and it has been held that the court should not attempt S. W. 669; Lindley v. State, 8 Tex. App. 445 ; Cady v. State, 4 Tex. App. 238 5 7 WhaUey v. State, 39 So. 1014, 144 Ala. 68. 5 8 Holmes v. Protected Home Cir- cle, 204 S. W. 202, 199 Mo. App. 528 ; Steinwender v. Oreath, 44 Mo. App. 356; Miller v. Woolman-Todd Boot & Shoe Co., 26 Mo. App. 57; Stine Oil & Gas Co. V. English (Tex. Civ. App.) 185 S. W. 1009. 5 9 Walsh V. Metropolitan Life Ins. Co., 142 S. W. 815, 162 Mo. App. 546 ; Berger v. St. Liouis Storage & Com- mission Co., 116 S. W. 444, 136 Mo. App. 36 ; Cramer v. Nelson, 107 S. W. 450, 128 Mo. App. 393; Laurence L. Prince & Co. v. St. Louis Cotton Com- press Co., 86 S. W. 873, 112 Mo. App. 49; Macliin v. People's St. Ry. & E. L. &P. Co., 45 Mo. App. 82. 60 Cal. Franklin v. Visalla Elec- tric R. Co., 131 P. 776, 21 Cal. App. 270. Del. Wilmington City Ry. Co. v. Truman, 72 A. 983, 7 Pennewill, 197. lU. Chicago City Ry. Co. v. Kas- trzewa, 141 111. App. 10. Iowa. State v. Richardson, 115 N. w; 220, 137 Iowa, 591. Mo. Jones v. Durham, 67 S. W. 976, 94 Mo. App. 51. Mont. Rand v. Butte Electric By. Co., 107 P. 87, 40 Mont. 398; State V. Felker, 71 P. 668, 27 Mont. 451. Okl. City of Gushing v. Bay, 198 P. 877. Tenn. Endowment Rank K. P. v. Steele, 69 S. W. 336, 108 Tenn. 624. Tex. Galveston, H. & S. A. Ry. Co. V. Blumberg (Civ. App.) 227 S. W. 734 ; Gulf, C. & S. F. By. Co. v. Rea- gan (Civ. App.) 34 S. W. 796. Greater weight of the evidence. The phrase "greater weight of the evidence" is not so technical as to re- quire explanation or elaboration. If a party desire that it be defined, he may ask such definition by instruc- tions tendered to the court. Ledford V. Hartford Fire Ins. Co., 161 111. App. 233. «i Georgia Southern & F. Ry. Co. V. Young Inv. Co., 46 S. E. 644, 119 Ga. 513; Schomak v. St. Paul Fire & Marine Ins. Co., 104 N. W. 1087, 96 Minn. 299 6 3 Ga. Jordan v. State, 85 S. Eu 327, 143 Ga. 449; Franklin v. State, S3 S. E. 196, 15 Ga. App. 349; Can- trell V. State, 80 S. E. 649, 141 Ga. 98; Faison v. State, 79 S. E. 39, 13 Ga. App. 180. Iowa. State v. Penney, 84 N. W. 509, 113 Iowa, 691. Ky. Collier v. Commonwealth, 169 S. W. 740, 160 Ky. 338; MeAlfe v. Commonwealth, 86 S. W. 5.34, 27 Ky. Law Rep. 704 ; HutseU v. Common- wealth, 75 S. W. 225, 25 Ky. Law Rep. 262. Mich. People V. Gregg, 135 N. \v. 970, 170 Mich. 168. Mo. State v. Rowland, 74 g. W. 622, 174 Mo. 373; State v. Weber, 156 Mo. 249, 56 S. W. 729, overruling State V. Brown, 104 Mo. 365, 16 S. W. 406 ; State v. Grant, 152 Mo. 57, 53 S. W. 432; State v. Barton, 142 Mo. 450, 44 S. W. 239 ; State v. Cant- lin, 118 Mo. 100, 23 S. W. 1091 ; State V. Scott, 109 Mo. 226, 19 S. W. 89. Wash. State v. Churchill, lOO P. 309, 52 Wash. 210. Compare Holland v. State, 60 S. E. 205, 3 Ga. App. 465; State v. .Tohn- BOD, 111 Mo. 578, 20 S. W. 302, ex- plaining State V. Brown, 104 Mo. 365, 16 S. W. 406, State v. Hayes, 105 360 INSTRUCTIONS TO JURIES 664 to. define the legal meaning of the word "discretion." ** The defi- nition of "consideration" or "voluntary consideration" may not be necessary,** and failure to define the words "res gestae" is not re- versible error.®® § 360. Defining words of witness The court should not explain the meaning of words as used in the testimony of a witness.*® § 361. Necessity of defining ordinary words having no special technical meaning The meaning of words and phrases in common use, and which have no special technical meaning in the connection in which they are used,®'' or words which are plain in their meaning and easily understood by any one competent to serve on a jury, need not be Mo. 76, 16 S. W. 514, 24 Am. St. Kep. 360, and State v. O'Connor, 105 Mo. 121, 16 S. W. 510. Sufficient definition. On a mur- der trial, the definition of the word "felonious" as meaning "wickedly and against the administration of the law; unlawfully," is correct. State V. Parker, 106 Mo. 217, 17 S. W. 180. 8 Holmes v. State, 119 P. 430, 6 Okl. Cr. 541. 6 4 First Nat. Bank v. Garner, 118 N. E. 813, 187 Ind. 391, rehearing denied 119 N. E. 711, 187 Ind. 391 ; Fa raws' Bank of West Louisville v. Birk, 201 S. W. 315, 179 Ky. 761. esCalsky v. State, 39 S. "W. 362, 37 Tex. Cr. R. 247. 06 Smith T. Plant, 103 N. E. 58, 216 Mass. 91. 67 Fla. Danford v. State, 43 So. 593, 53 Fla. 4. Ga. Western Union Telegraph Co. V. Ford, 74 S. E. 70, 10 Ga. App. 606. m. Henderson v. People, 124 111. 607, 17 N. E. 68, 7 Am. St. Rep. 391. Iowa. Wegner v. Kelly, 165 N. W. 449, 182 Iowa, 259, affirming judg- ment on rehearing 157 N. W. 206; State V. Pell, 119 N. W. 154, 140 Iowa, 655 ; Iowa State Sav. Bank v. Black, 91 Iowa, 490, 59 N. W. 283. Ky. 0. F. Kleiderel- & Son v. Al- drldge's Ex'x, 170 S. W. 23, 160 Kj-. 638 ; Maysville & B. S. B. Co. v. Wil- lis, 104 S. W. 1016, 31 Ky. Law Rep. 1249; Louisville & E, R. Co. v. Vin- cent, 96 S. W. 898, 29 Ky. Law Rep. 1049. Me. Berry v. Billings, 47 Me. 328. Mich. Miller V. Beck, 35 N. W. 899, 68 Mich. 76. Mo. Ganahl v. United Rys. Co. of St. Louis, 197 S. W. 159, 197 Mlo. App. 495; Moore v. McCutchen fApp.) 190 S. W. 350; Morris v. St. Louis & S. F. R. Co., 168 S. W. 325, 184 Mo. App. 65 ; Clouts V. Laclede Gaslight Co., 140 S. W. 970, 160 Mo. App. 456; State V. Barrington, 95 S. W. 235, 198 Mo. 23; State v. McGuire, 91 S. W. 939, 193 Mo. 215 ; Kischman v. Scott, 166 Mo. 214, 65 S. W. 1031; Feary V. O'Neill, 149 Mo. 467, 50 S. W. 918, 73 Am. St. Rep. 440; Farmer v. Farmer, 129 Mo. 530, 31 S. W. 926; State V. Harkins, 100 Mo. 666, 13 S. W. 830; CottrlU v. Krum, 100 Mo. 397, 13 S. W. 753, 18 Ani. St. Rep. 549; Reeds v. Lee, 64 Mo. App. 688. Neb. Home B^re Ins. Co. v. Deck- er, 75 N. W. 841, 55 Neb. 346. N. J. State V. Rombolo, 103 A. 203, 91 N. J. Law, 560. Tex. Lattimore v. Puckett & Wear (Civ. App.) 161 S. W. 951; Curring- ton V. State, 161 S. W. 478, 72 Tex. Cr. R. 143; Blackburn v. State, 160 S. W. 687, 71 Tex. Cr. B. 625 ; Clay V. State, 146 S. W. 166, 65 Tex. Or. R. 590; Southwestern Ry. Co. v. Bradford (Civ. App.) 139 S. W. 1046; Johnson v. W. H. Goolsby Lumber Co. (Civ. App.) 121 S. W. 883 ; Raley €65 DEFINITION OB EXPLANATION OP TERMS §361 defined.** Under this rule it is not necessary to define such words as "accommodation," «» "accrued,"'* "agent," ''i "assumed risk,""* "bona fide holder,"" "circumstantial evidence,"'* "city,"''^ "co- habit, " 76 ", conspiracy. . ,.j| 'contributed," '« "control," ■" "corrobo- ration,"** "credible," or "credibility," *i "cruel or unusual man- V. state, 105 S. W. 342, 4T Tex. Civ. App. 426; Robinson v. State (Cr. App.) 63 S. W. 869; A. J. Anderson Electric Co. v. Cleburne Water, Ice 6 Lighting Co., 57 S. W. 575, 23 Tex. Civ. App. 328; Beard v. State, '53 S. W. 348, 41 Tex. Or. R. 173 ; Galveston, H. & S. A. Ry. Co. v. Henning (Tex. Civ. App.) 39 S. W. 302, affirmed 40 S. W. 392, 90 Tex. 656. Wash. Akin v. Bradley Engineer- ing & Machinery Co., 99 P. 1038, 51 Wash. 658. .88 Cal. People v. Wong Hing, 169 P. 357, 176 Cal. 699. Colo. West V. People, 156 P. 137, 60 Colo. 488. Ga. Jackson v. Georgia R. & Banking Co., 67 S. EL 898, 7 Ga. App. 644: Woodall v. State, 66 S. E. 619, 7 Ga. App. 245; Atlanta Baggage & Cab Co. V. Mizo, 61 S. E. 844, 4 Ga. Apn. 407. 111. People V. Capello, 118 N. E. fl27, 282 111. 542 ; People v. Anderson, 87 N. E. 917, 239 111. 168. Iowa. State v. Bresee, 114 N. W. 45, 137 Iowa, 673, 24 L. R. A. (N. S.) 103 ; State v. Bone, 87 N. W. 507, 114 Iowa, 537. Ky. Kentucky Utilities Co. v. Mc- carty's Adm'r, 186 S. W. 150, 170 Ky. 543, modifying judgment 183 S. W. 237, 169 Ky. 38; J. V. Pilcher Mfg. Co. V. Teupe's Ex'x, 91 S. W. 1125, 28 Ky. Law Rep. 1350. Mass. Commonwealth v. Buckley, S6 N. E. 910, 200 Mass. 346, 22 L. R. A. fN. S.) 225, 128 Am. St. Rep. 425. Mo. State V. Long, 100 S. W. 587, 201 Mo. 664; Boettger v. Scherpe & Koken Architectural Iron Co., 38 S. W. 298, 136 Mo. 531; Goldsmith v. Wamsganii, 86 Mo. App. 1. Mont. State V. Lewis, 159 P. 415, 52 Mont. 495. Xex. Schramm v. Wolff (Civ. App.) 126 S. W. 1185; Trinity & B. V. Ry. Co. V. Elgin, 121 S. W. 577, 56 Tex. Civ. App. 573; Humphreys v. State, 34 Tex. Cr. R. 434, 30 S. W. 1066. Vt. Eastman v. Curtis, 67 Vt. 432, 32 A. 232. «9 Larimore v. Legg, 23 Mo. App. 645. 70 McDonnell v. Nicholson, 67 Mo. App. 408. 71 Harper v. Pldler, 105 Mo. App. 680, 78 S. W. 1034. 72 Corell V. Williams & Hunting (Iowa) 148 N. W. 633. 73 King V. Heilig, 203 HI. App. 117. In Missouri, however, it has been held that instructions should employ plain and unambiguous English, and to tell the jury that if defendant as- signed his property in good faith and ■for the purpose of paying or securing his bona fide debts, that the assign- ment was not made to hinder, etc., without defining the terms "good faith" and "bona fide," is error. Bow- les Live Stock Commission Co. v. Hlunter, 91 Mo. App. 333. 7* Pope V. Seaboard Air Line Ry., 94 S. E. 311, 21 Ga. App. 251. 7 5 Stotler V. Chicago & A. Ry. Co., 98 S. W. 509, 200 Mo. 107. 76 State V. Knost, 105 S. W. 616, 207 Mo. 18. 77 Frederick v. Morse, 92 A. 16, 88 Vt. 126. 7s Bunyan v. Loftus, 90 Iowa, 122, 57 N. W. 685. 7 Texas Electric Ry. v. Stewart, 217 S. W. 1081. 80 Mo. State v. Daly, 109 S. W. 53, 210 Mo. 664 ; Buckley v. State, 181 S. W. 729 ; Moore v. State, 144 S. W. 598, 65 Tex. Cr. B. 453; Harris v. State, 144 S. W. 232, 64 Tex. Cr. R. 594 ; Austin v. State, 101 S. W. 1162, 51 Tex. Cr. R. 327; Still v. State (Tex. Cr. App.) 50 S. W. 355. Contra, People v. Sternberg,, 111 Cal. 11, 43 P. 201; State v. Hunter, 80 S. W. 955, 181 Mo. 316; State v. McLain, 60 S. W. 736, 159 Mo. 340. "Barber v. State, 142 S. W. 577, §361 INSTRUCTIONS TO JURIES 666 ner,"*» "dangerous,"** "deceptive," or "deceptively,"** "deliver,"' or "delivery," *^ "drunkenness," *® "effici6nt and procuring cause,"*' "exhibit,"** "extort,"** "fact,""' "flying switch,"*^ "fraud," "fraudulent," or "fraudulent statement," or kindred words,'* "good repute," »» "habitual drunkard," »* "habitually," '^ "imminent peril," ** "intoxicated," *' "lucid interval," ** "material fact," ** "materially," ^. "may," * "misrepresentation," * "occupa- tion," or "business," * "open and gross," ^ "passenger," ' "pimp," ' "prima facie," * "procuring cause," * "proper inspection," i* "pros- 64 Tex. Or. R. 96 ; Chavarrla v. State (Tex. Cr. App.) 63 S. W. 312. S2 State V. C"olvin, 126 S. "W. 448, 226 Mo. 446 ; State v. Linney, 52 Mo. 40. 88 Gilbert v. HiUiard (Mo. App.) 222 S. "W. 1027. 84 Glover v. American Hominy Flakes Co., 76 Mo. App. 103. 8 5 Jameson v. Plournoy, 184 P. 910, 76 Okl. 227. 88 State V. Bobbst, 190 S. W. 25'(, 269 Mo. 214. Sufficient definition in absence of reqnest for amplification. An instruction defining drunkenness as that condition of a person due to the excessive use of intoxicating liq- uors, in accordance with the common experience of the jurors, etc., was sufficient, in the absence of any re- quest to amplify the same. People v. Lowrle, 128 N. W. 741, 168 Mich. 514. 8 7 Ramsey v. Gibson (Tex. Civ. App.) 185 S. W. 1025. 88 State V. Nichols, 170 S. W. 1110, 262 Mo. 113. 8 State v. Ixjuanis, 65 A. 532, 79 Vt. 463, 9 Ann. Cas. 194. 8 In re Nutt's Estate, 185 P. 393, 181 Cal. 522. 91 Lange v. Missouri Pac. By. Co., 91 S. W. 989, 115 Mo. App. 582. 9 2 Barco V. Taylor, 63 S. E. 224, 5 Ga. App. 372; State v. Gregory, 71 S. W. 170, 170 Mo. 598; Kischman v. Scott, 65 S. W. 1031, 166 Mo. 214; Feary v. O'Neill, 149 Mo. 467, 50 S. W. 918, 73 Am. St. Rep. 440. 03 State V. Walker, 134 S. W. 516, 232 Mo. 252. oiRunkle v. Southern Pac. Milling Co. (Cal.) 195 P. 398. 5 Johnson v. State, 104 S. W. 902, 51 Tex. Cr. R. 648. 9 8 Bryant v. Kansas City Eys. Coi (Mo.) 228 S. W. 472. 7 Mutual Dife Ins. Co. v. Johnson, 166 P. 1074, 64 Okl. 222. 08 Montgomery v. State, 151 S. W. 813, 68 Tex. Or. R, 78. 9 North Chicago St. R. Co. v. Shreve, 49 N. E. 534, 171 III. 438, af- firming judgment 70 111. App. 666; State V. Davidson, 157 S. W. 890, 172 Mo. App. 356. 1 Illinois Cent. R. Co. v. Tolar's Adm'r, 183 S. W. 242, 169 Ky. 114. 2 Lewiston Milling Co. v. Cardiff (0. C. A. Idaho) 266 F. 753. 3 Zackwik v. Hanover Fire Ing. Co. (Mo. App.) 225 S. W. 135. 1 Figneroa v. State, 159 S. W. 1188, 71 Tex. Cr. R. 371 ; Dickson v. State, 146 S. W. 914, 66 Tex. Or. R. 270. 6 State V. Pedigo, 175 S. "W. 556, 190 Mo. App. 293, certiorari dismissed (Sup.) State ex rel. Pedigo v. Robert- son, 181 S. W. 987. 6 Schwanenfeldt v. Metropolitan St. Ey. Co., 174 S. W. 143, 187 Mo. App.. 588;, Gillogly v. Dunham, 174 S. W. 118, 187 Mo. App. 551. 7 People V. Gastro, 42 N. W. 937, 75 Mich. 127. sBalfe V. People, 179 P. 137, 66 Colo. 94 ; Chicago & A. R. Co. v. Es- ten, 52 N. E. 954, 178 111. 192, affirming judgment 78 111. App. 326. ^ Contra, Nelson v. State, 168 P. 460, 14 Okl. Or. 153. Lumsden v. Jones (Tex. Civ. App.)- 227 S. W. 358. 10 Brogan v. Union Traction Co., 86 S. E. 753, 76 W. Va. 698. 667 DEFINITION OE EXPLANATION OF TERMS 362 titution," " "punitive," or "exemplary," i« "reasonable diligence," i* "reasonable proximity,"" "reasonable time," ^^ "repi^tation." ^^ "self-defense,"" "serious bodily injury,"" "stone," i» "substan- tial," or "substantially,"''" and "theft." ^^ § 362. Necessity of request for definition As a general rule, a party who does not request an instruction defining a word or phrase cannot complain of the failure to give it ; ^' this rule applying to the definition of such words as "accom- 11 Clark V. State, 174 S. W. 354, 76 Tes. Cr. R. 348; Tores v. State (Tex. ■Cr. App.) 63 S. W. 880. 12 St. Louis & S. F. R. Co. V. Moore, 58 So. 471, 101 Miss. 768, 39 L. R. A. (N. S.) 978, Ann. Cas. 1914B, 597; Distler v. Missouri Pac. Ry. Co., 147 S. W. 518, 163 Mo. App. 674. In, BUchigan it has been. held. In an action under a statute providing that one selling Intoxicating liquor to a minor shall be liable for both actual and exemplary damages, that as "exemplary damages" does not mean "smart money," but means com- pensatory damages for wounded pride, mortification, injury to feel- ings, mental anxiety and the like, an instruction using the term "exemplary damages" should explain its real meaning. Hink v.. Sherman, 129 N. W. 732, 164 Mich. 352. 13 Texas Midland R. R. v. Ritchey, 108 S. W. 732, 49 Tex. Civ. App. 409. 14 Oliver V. Forney Cotton Oil & Ginning Co. (Tex. Civ. App.) 226 S. W. 1094. 15 Bettokl V. Northwestern Coal & Mining Co. (Mo. App.) 180 S. W. 1021 ; Houston & T. C. R. Co. v. Roberts, 109 S. W. 982, 50 Tex. Civ. App. 69. 18 Pitman v. Drown, 195 S. W. 815, 176 Ky. 263. 17 State V. Bailey, 88 S. W. 733, 190 Mo. 257. Contra, Bone v. State, 68 So. 702, 13 Ala. App. 5. 18 Thomas v. State, 116 S. W. 600, 55 Tex. Cr. R. 293. 10 Commonwealth v. Carroll, 145 Mass. 403, 14 N. B. 618. 2 Deatherage Lumber Co. v. Sny- der, 65 Mo. App. B68. 24Bloch V. U. S. (O. 0. A. Tex.) 201 F. 321, certiorari denied 40 S. Ct. 481, 253 TJ. S. 484, 64 L. Ed. 1025. 2 2 Ark. Morris v. Collins, 191 S. W. 963, 127 Ark. 68. Cal. , People v. Hirsch, 132 P. 1062, 21 Cal. App. 737. Ga. City of Americus v. Phillips, 79 S. B. 36, 13 Ga. App. 321. 111. Henderson v. People, 124 111. 607, 17 N. B. 68, 7 Am. St. Rep. 391. Imd. Jenney Electric Mfg. Co. v. Flannery, 98 N. B. 424, 53 Ind. App. 397. Iowa. Wegner v. Kelly, 165 N. W. 449, 182 Iowa, 259, affirming judg- ment on rehearing 157 N. W. 206 ; Richards v. Qrosby, 162 N. W. 609, 179 Iowa, 1355; Wickwire v. Web- ster City Savings Baiik, 133 N. W. 100, 153 Iowa, 225 ; State v. Mahoney, 97 N. W. 1089, 122 Iowa, 168; State V. Atkins, 97 N. W. 996, 122 Iowa, 161. Ky. Louisville & B. R. Co. v. Vin- cent, 96 S. W. 898, 29 Ky. Law Rep. 1049 ; Louisville & N. R. Co. v. Fow- ler, 96 S. W. 568, 29 Ky. Law Rep. 905; Russell v. Cincinnati R. Co., 4 Ky. Law Rep. (abstract) 906. Mass. Dunham v. Holmes, 113 N. E. 845, 225 Mass. 68. Minn. Gruber v. German Roman Catholic Aid Ass'n of Minnesota, 129 N. W. 581, 113 Minn. 340; Kostuch V. St. Paul City Ry. Co., 81 N. W. 215, 78 Minn. 459. Mo. Dabbs v. Kansas City South- ern Ry. Co. (App.) 202 S. W. 276; State V. Fraser, 143 S. W. 545, 161 Mo. App. 333 ; Asmus v. United Rys. Co. of St. Louis, 134 S. W. 92, 152 Mo. App. 521; Kirby v. Lower, 124 S. W. 34, 139 Mo. App. 677. N. D. Reichert v. Northern Pac. Ry. Co., 167 N. W. 127, 39 N. D. 114. Pa. Lindemann v. Pittsburgh Rys. Co., 96 A. 1085, 251 Pa. 489. S. C. State V. Allen, 96 S. B. 401, 110 S. C. 278. § 362 INSTRUCTIONS TO JUEIES 66» modation," ** "accomplice,"** "adverse possession,"** "agent,"** "aid,"" "assault,"** "burden of proof,"** "carnal knowledge," «* "cattle guards," *i "circumstantial evidence," ** "concealed wea- Tex. MUlsaps v. Johnson (CiT. App.) 19© S. W. 202; Galveston, H. & S. A. Ry. Co. V. Koemer (Civ. App.) 173 S. W. 229; Ellerd v. Campfield (Civ. App.) 161 S. W. 392; Day v. Becker (Civ. App.) 145 S. W. 1197; Kretzschmar v. Peschel (Civ. App.) 144 S. W. 1021; Knight v. Durham (Civ. App.) 136 S. W. 591; Berry v. State (Civ. App.) 135 S. W. 631 ; St Louis, B. & M. Ry. Co. v. West, 131 , S. W. 839, 62 Tex. Civ. App. 553 ; Tex- as & N. O. R. v. Walker, 125 S. W. 99, 58 Tex. Civ. App. 615 ; Galveston, H. & g. A. Ry. Co. V. Harper, 114 S. W. 1168, 53 Tex. av. App. 614, judg- ment aflSrmed on rehearing, 114 S. W. 1199, 53 Tex. Civ. App. 614; West- em Union Telegraph Co. v. . Craven (Civ. App.) 95 S. W. 633 ; Pacific Mut. Life Ins. Co. v. Terry, 84 S. W. 656, 37 Tex. Oiv. App. 486 ; Galveston, H. & S. A. Ry. Co. V. Ford, 54 S. W. 37, 22 Tex. Civ. App. 131; Arkansas Const. Co. V. Eugene, 50 S. W. 736, 20 Tex. Clv. App. 601; Sehulz v. Tessman (Tex. Civ. App.) 48 S. W. 207, reversed 49 S. W. 1031, 92 Tex. 488. Wis. , Holmes v. State, 102 N; W. 321, 124 Wis. 133. Definition of statutory pbrase. In an action for causing the death of plaintiff's son, failure to define the meaning of the statutory phrase, "such damages as they may think proportioned to the injury," is not ground for reversal, where no request is made therefor, and the court charg- es the jury in the language of the statute, and gives the construction placed on it by the supreme court, and also charges that the jury cannot give punitive, but only compensatory, damages. Nohrden v. Northeastern R. Co., 37 S. E. 228, 59 S. C. 87, 82 Am. St. Rep. 826. Where a statute provides that If a person is injured at a crossing, and the railroad cor- poration neglects tol give the statu- tory signals, and such neglect contrib- \iteS to the injury, the corporation shall be liable, etc., it is not error to omit to explain to the jury the mean- ing of the term "contributes," as used in said statute, vi^here no request therefor is made at the trial. Wragge v. South Carolina & G. R. Co., 47 S. O. 105, 25 S. E. 76, 58 Am. St. Rep." 870, 33 L. R. A. 191. Necessity of req.uest tox< fuller definition. In a homicide case, if the court's charge on manslaughter, in defining adequate cause as being such as "would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection," was Insufficient, in that the evidence showed accused to^ be subject to epileptic fits and nerv- ous and irritable, he should have of- fered some other definition. Zimmer- man V. State, 215 ,S. W. 101, 85 Tex. Or. R. 630. 2 3 Sales V. Martin, 191 S. W. 480,. 173 Ky. 616. 24 Driggers v. United States, 104 S. W. 1166, 7 Ind. T. 752, judgment re- versed 95 P. 612, 21 Okl. 60, 1 Okl. Cr. 167, 129 Am. St. Rep. 823, 17 Ann. Cas. 66. 2 5 Western North Carolina Land Co. V. Seaife (C. O. A. N. C.) 80 F. 352, 25 G. O. A. 461; Robinson v. Mclver (Ter. Civ. App.) 23 S. W. 915. 2 6 Smith V. Brinson, 89 S. E. 363, 145 Ga. 406. 2 7 State V. McDonald, 193 P. 179, 107 Kan. 568. 28 Roark V. State, 32 S. E. 125, 105 Ga. 736; State v. Baker, 135 N. W. 1097, 157 Iowa, 126, judgment modi- fied on rehearing 138 N. W. 841, 157 Iowa, 126. 2 » Howard v. Beldenville Lumber Co., 108 N. W. 48, 129 Wis. 98. 30 Drake v. State, 151 S. W. 315, 68 Tex. Or. R. 94. »i Quinn v. Atchison,, T. & S. F. Ry. Co. (Mo. App.) 193 S. W. 933. 32 Hamilton v. State, 89 S. E. 449, 18 Ga. App. 295. DEFINITION OR EXPLANATION OF TERMS §362 pons," ** "conspiracy," ** "conspiracy to defraud creditors," *^ "converted," ** "deliberation and premeditation," *' "disease of a serious nature," ** "efficient and procuring cause," *® "exigency," *• "false," or "forgery," *i "felony," « "fornication," « "fraKd" or "undue influence,"** "fraudulent taking," *8 "gambling house,"*" "heat of passion," *'' "in evasion of the statute," *» "inmate," *» "in- terstate commerce,"*" "malice," ^i "malt,"*« "margin," ^s "market value,"** "mitigate, excuse or justify,"** "murder,"*" "negli- gence," "ordinary care," and kindred words,*' "nighttime," ** "no- 33 Jolinson V. State, 40 So. 678, 51 Fla. 44. 34 Vasser v. State, 87 S. W. 635, 75 Ark. 373. 35 Wiler V. Manley, 51 Ind. 169. 3 8 Walker v. Lewis, 124 S. W. 567, 140 Mo. App. 26. 37 State V. Armstrong, 79 P. 490, 37 Wash. 51. 3 8 Woodmen of the World v. Lock- lin, 67 S. W. 331, 28 Tex. Civ. App. 486. 39 Black V. Wilson (Tex. Civ. App.) 187 S. W. 493. *o Rocci V. Massachusetts Ace. Co., 110 N. E. 477, 226 Mass. 545. 41 People V. Warner, 104 Mich. 337, 62 N. W. 405. 42 Evans v. State, 102 S. E. 43, 24 Ga. App. 700; Smith v. State, 99 S. B. 142, 23 Ga. App. 541; Cook v. State, 96 S. E. 393, 22 Ga. App. 266 ; Pressley v. State, 63 S. E. 784, 132, Ga. 64; People v. Meyer, 124 N. E. 447, 289 111. 184. 43 Hembree v. State, 86 S. B. 286, 17 Ga. App. 117. 44 Pye V. Pye, 65 S. E. 424, 133 Ga. 246; Bugg v. Holt,, 97 S. W. 29, 29 Ky. Law Eep. 1208. 45 Ellington v. State, 140 S. W. 1102, 63 Tex. Cr. R. 420. 46 Schmidt v. Territory, 108 P. 246, 13 Ariz. 77 ; Bluhakis v. State, 88 S. B. 911, 18 Ga. App. 112. 47 State V. BuflBngton, 81 P. 465, 71 Kan. 804, 4 L. R. A. (N. S.) 154; Beauregard v. State, 131 N. W. 347, 14© Wis. 280. 48 State V. Fountain, 168 N. W. 285, 183 Iowa, 1159. 49 State V. Burley, 165 N. W. 190, 181 Iowa, 981. 6 Malott V. Hood, 66 N. E. 247, 201 111. 202, affirming judgment 99 111. App. 360. 61 People V. Glaze, 72 P. 965, 139 Cal. 154; State v. Moynihan, 106 A. 817, 93 N. J. Law, 253. 62 Edwards v. City of Gulft)ort, 49 So. 620, 95 Miss. 148. 63 Gill V. State, 30 Ohio Oir. Ct. R. 278. B4Texarkaiia & Ft. S. Ry. Co. v. Spencer, 67 S. W. 196, 28 Tex. Civ. App. 251. 5 5 Kelly V. State, 151 S. W. 304, 68 Tex. Cr. R. 317. 6 6 Dixon V. State, 64 So. 468, 106 Miss. 697, overruling su^estions of error 64 So. 379. 67 tr. S. Western Union Tel. Co. V. Engler (C. C. A. Nev.) 75 F. 102, 21 C. C. A. 246, affirming judgment Bngler v. Western Union Tel. Co. (C. C.) 69 F. 185. Ark. Western Coal & Mining Co. v. Jones, 87 S. W. 440, 75 Ark. 76. Cal. O'Connor v. United Railroads of San Francisco, 141 P. 809, 168 Cal. 43. ^ Colo. Colorado & S. Ry. Co. v. Webb, 85 P. 683, 36 Colo. 224. Ga. Wakefield v. Lee, 90 S. B. 224, 18 Ga. App. 648; Atlantic & B. Ry. 6o. v. Smith, 58 S. B. 542, 2 Ga. App. 294. , . Iowa. Fisher v. Cedar Rapids & M. C. Ry. Co., 157 N. W. 860, 177 Iowa, 406. Ky. Blue Grass Traction Co. v.' Ingles, 131 S. W. 278, 140 Ky. 488; South Covington & C. St. Ry. Co. v. Brown, 104 S. W. 703, 31 Ky. Law Rep. 1072 ; Cincinnati, N. 0. & T. P. 6 8 Shaffel V. State, 72 N. W. 888, 97 Wis. 377. § 362 INSTRUCTIONS TO JURIES 670 tice,"'S9 "not guilty,", «» "part with ownership," «i "penetration," «« "plea of avoidance," *^ "premeditated design," ®* "premises," *" "prima facie," or "prima facie evidence," ®® "probable profits," *>' "proximate cause," ** "proximate result," ** "publication," ^ "rea- sonable cause,"''! "remove," '« "reputation,"'* "robbery,"'* "spe- Ry. Co. V. Cecil, 90 S. W. 585, 28 Ky. Law Rep. 830 ; Cincinnati) etc., R. Co. V. Richardson, 14 Ky. Law Rep. (abstract) 367. Mo. Unionville Produce Co. v. Chi- cago, B. & Q. R. Co., 153 S. W. 63, 168 Mo. App. 168; Rippetoe v. Mis- souri, K. & T. Ry. Co., 122 S. W. 314, 138 Mo. App. 402 ; Rattan v. Cen- tral Electric Ry. Co., 96 S. W. 735, 120 Mo. App. 270 ; Ashby v. Elsberry & N. H. Gravel Road Co., 85 S. W. 957, 111 Mo. App. 79; Priesmeyer v. St. Louis Transit Co., 77 S. W. 313, 102 Mo. App. 518 ; Quirk v. St. Louis United Elevator Co., 126 Mo. 279, 28 S. W. 1080; Johnson v. Missouri Pac. Ry. Co., 96 Mo. 340, 9 S. W. 790, 9 Am. St. Rep. 351. N. J. Blumenfeld v. Hudson & M. R. Co., 99 A. 312, 89 N. J. Law, 580. Tex. Atchison, T. & S. F. Ry. Co. V. Mills, 116 S. W. 852, 53 Tex. Civ. App. 359; International & 6. N. R. Co. V. Tisdale, 87 S. W. 1063, 39 Tex. Oiv. App. 372; Taylor v. Houston & T. C. R. Co. (Civ. App.) 80 S. W. 260 ; Western Union Tel. Co. v. James, 73 S. "W. 79, 31 Tex. Civ. App. 503 ; In- ternational & G. N. R. Co. v. Clark (Civ. App.) 71 S. W. 587, judgment re- versed 72 S. W. 584, 96 Tex. 349; Dal- las Consol. Electric St. Ry. Oo. v. Broadhurst, 68 S. W. 315, 28 Tex. Civ. App. 630 ; Milligan v. Texas & N. O. R. Co., 66 S. W. 896, 27 Tex. Civ. App. 600 ; Galveston, H. & S. A. Ry. Co. v. Smith, 57 S. W. 999, 24 Tex. Civ. App. 127 ; Galveston, H. & S. A. Ry. Ck). v. Waldo (Civ. App.) 26 S. W. 1004 ; Gal- veston, H. & S. A. Ry. Co. v. Arispe, 81 Tex. 517, 17 S. W. 47. Wash. Cogswell v. West St. & N. E. Electric Rv Oo., 5 Wash. 46, 31 P. 411. Wis. Brunette v. Town of Gagen, 82 N. W. 564, 106 Wis. 618. InsufflcieU' 4efinition. 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 pru- dent and careful person would have done under like circumstances," It was held that appellant waived ob- jection that the definition did not in- clude the doing of any affirmative act, by his failure to request a further charge to that effect. Camjibell v. Warner (Civ. App.) 24 S. W. 703. 6 8 Collins v.'Kelsey (Tex. Oiv. App.) 97 S. W. 122. ooKnoxville, C. G. & L. R. Co. v, Wyrick, 42 S. W. 434. 99 Tenn. ROO. ei Wylie v. State, 215 S. W. 593, 140 Ark. 24. 62 State V. Oden, 138 P. 1083, 69 Or. 385. 63 Texas & N. O. R. Oo. v. Scott, 71 S. W. 26, 30 Tex. Oiv. App. 496. 64 McDonald v. State, 46 So. 176, 55 Pla. 134. 65 Carter v. State, 94 S. E. 630, 21 ■Ga. App. 493. 6 6 Pagnani v. State, 146 S. W. 542, 66 Tex. Or. R. 291 ; San Antonio & A. P. Ry. Co. V. Use (Tex. Civ. App.) 59 S. W. 564. 6 7 Ramsay v. Meade, 86 P. 1018, 37 Colo. 465. 68 Varney v. Ajax Forge Co., 204 111. App. 208; Singer v. Martin, 164 P. 1105, 96 Wash. 231 ; Miles v. Stanke, 89 N. W. 833, 114 Wis. 94. 6 Western Union Tel. Co. v. GiflBn, 65 S. W. 661, 27 Tex. Civ. App. 306. 7 Chaddick v. Haley, 81 Tex. 617, 17 S. W. 233. 71 Ross V. Grand Pants Co., 156 S, W. 92, 170 Mo. App. 291. 72 State V. Bosworth, 152 N. W. 581, 170 Iowa, 329. 73 Pitman v. Drown, 195 S. W. 815, 176 Ky. 263. 74 People V. Rogers, 126 P. 143, 163 Oal. 476. ^'^1 DEFINITION OE EXPLANATION OF TERMS § 364 cie," "in kind" and "for consumption," 's "subsidiary facts," " "sub- stantial performance,"" "successful impeachment,"'* "unlawful purpose,"'* "usages of civilized warfare,"** and "wantonly" or "willfully." «i § 363. Effect of failure to give definition The failure of the court to define a word or phrase will not con- stitute ground for reversal, where it appears that the jury under- stood its meaning,** or that they could not have attached to it a meaning more damaging to the appellant than that which the court intended to convey.** § 364. Sufficiency of definition or explanation of terms Where the court undertakes to define words or phrases, it should use terms having a precise and definite meaning.** In an action based on a statute, it will usually be sufficient to define terms used therein in the language of the statute.*^ The court is not required to supplement a definition by the use of illustrations.** The jury should not be told to look to the evidence for the "ordinary and usual" meaning of words and terms, since such meaning is a mat- ter for the determination by the jury upon their own knowledge, information, and experience, independent of evidence or instruc- tion.*' It is the better practice to adhere to charges which have already received the approval of the court of last resort.** 7B Foote V. Kelley, 55 S. E. 1045, .struct! on in which the word "reason- 126 Ga. 799. ably" was .defined to mean "in a rea- 76 Hinshaw V. State (Ind. Sup.) 47 sonable manner ; consistent with rea- N. E. 157, 147 Ind. 334. son ; in a moderate degree ; tolera- TT Connell v. Higgins, 150 P. 769, bly." York v. City of Bverton, 97 S. 170 Cal. 541. W. 604, 121 Mo. App. 640. 78 Kelly V. State, 88 S. E. 822, 145 "Etc." The use of the expression Ga. 210. • "etc." in an instruction defining actu- 7 9 State V. Jacobs, 97 S. E. 835, 111 aj malice as "actual ill will, hatred, S. C. 283. etc.," is harmless error; the mean- so White V. Crump, 19 W. Va. 583. ing of the word "malice" being well 81 State V. Barrett, 65 S. E. 894, 151 understood. Louisville Press Co. v. N. C. 665. Tennelly, 49 S. W. 15, 105 Ky. 365, 20 8 2 Miller v. Barnett, 101 S. W. 155, Ky. La^ Kep. 1231. 124 Mo. App. 53. ^' Skeen V. Chambers, 86 P. 492, gl 83 Cody V. Gremmler, 99 S. W. 46, Utah, 36: 121 Mo. App. 359. *° Rowe v. United Commercial 8* Equitable Produce & Stock Ex- Travelers' Ass'n, 172 N. W. 454, 186 change v. Keyes, 67 Ul. App. 460; Iowa, 454, 4 A. L. Il.'1235. Ware v. Flory, 201 S. W. 593, 199 Mo. st Garrity V. Catholic Order of For- A.PP 60 esters, 148 111. App. 189, judgment af- Definitions lacking In preci- firmed 90 N. E. 753, 243 111. 411. sion. In an action for personal in- ss State v, Nerzinger, 119 S. W. 379, juries from a defective sidewalk, 220 Mo. 36 ; Miller v. State, 119 N. W. there was no error in refusing an in- 850, 139 Wis. 57. §365« INSTRUCTIONS TO JURIES 672 § 365. Sufficiency of definition of criminal offense III a criminal prosecution it is not improper for the court to de- fine the crime charged in the exact words of the statutory, defini- tion of it,*^ and it is perhaps better that the court should do', so ; ^^ and it is iio objection to quoting the statute that there is no evi- dence that the defendant has made use of all the means designated in the statute of committing the. crim6 charged ; '^ but it is not necessary for the court to use the words of the statute in defining the ofiEense, so long as the language which it does use has the same meaning and cannot be misconstrued by the jury.^* Where the statute on which a criminal prosecution is based de- fines more than one offense, the court should give to the jury only that part of the statute dealing with the offense charged ; ** but it will not be reversible error to quote the statute in full, if th« court limits its application to the allegations of the indictment.^* 8 9 111. DTinean v. People, 134 111. 110, 24 N. E. 765. Iowa. State V. "Wilson, 141 N. W. 337, 157 Iowa; 698. nicuat. State v. Tracey, 90 P. 791, 35 Mont. 552. Mo. State V. Frank, 103 Mo. 120, 15 S. W,. 330 ; State v. Miller, 93 Mo. 263, 6 S. W. 57. Neb. Alt V. State, 129 N. W. 432, 88 Neb. 259, 35 L. R. A. (N. S.) 1212. • Tex. Jackson v. State (Or. App.) . 38 S. W. 990. Wis. State V. Essex, 175 N. W. 795, 170 Wis. 512; Giskie v. State, 71 Wis. 612, 38 N. W. 334. Defining "practice of dentist- ry." An instruction on a trial for practiciag dentistry without a license, which defines the practice of dentist,- ry in the language of the statute, reg- ulating the practice, is not erroneous. People T. Fortch, 110 P. 823, 13 Cal. App. 770. 80 Long V. State, 23 Neb. 33, 36 N. W. 310. »i People V. MeGonegal, 62 Hun, 622, 17 N. T. S. 147. »2 Jones V. State, 99 S. E. 893, 24 Ga. App. 129 ; State y. Ireland, 83 P. 1036, 72 Kan. 265; Holmes v. State, 118 N. W. 99, 82 Neb. 406 ; Adkins v. State, 56 S. W. 63, 41 Tex. Or. R. 577. Departofe from statute after once qnoting it. Where the precise terms of the statute are once used, and thereafter there is a slight de- parture from the literal words of the statute, the obvious equivalent being used, no reversible error is commit- ted. Ward V. State, 126 S. W. 1145, 59 Tex. Cr. R. 62. OS Jones V. State, 22 Tex. App. 680, 3 S. W. 478; Olubb v. State, 14 Tex. App. 192. 04 Simons v. State (Or. App.) 34 S. W. 619; Hargrave v. State (Cr. App.) 30 S. W. 444. 673 DUTIES OF JUET § 366 CHAPTER XXIX NECESSITY AND PROPRIETY OF INSTRUCTIONS AS TO DUTIES OF JURY § 366. In general. 367. Instructions as to province of court and jury, 368. Duty of court to avoid coercing jury. 369. Urging agreement. 370.- Encouraging disagreement. 371. Charges that juror should not surrender his individual judgment or conscientious convictions. 372. Instructions tending to increase feeling of responsibility by jury. 373. Instructions objectionable or criticized as tending to lessen sense of responsibility of jurors. 374. Obligation of oath. 375. Duty to look to the whole evidence. 376. Duty to reconcile conflicting evidence. § 366. In general The giving of cautionary instructions with respect to the duties of the jury rests largely in the discretion of the trial court.^ Thus there is no error in refusing a requested instruction that special charges given by the court at the request of either party, have the same dignity and binding force as the main charge of the court, and that such special charges should be given the same considera- tion as the main charge.* So the refusal of instructions that the jury should find upon the issues submitted without reference to their opinions as to the legal rights of the parties is not error.* So the court is not. required to tell the jury to specify in their general verdict under what count or counts of the declaration the 'same is returned.* On the other hand, cautionary instructions may be prop- er as to the right to sue in one county for an injury occurring in another county,® or as to the duty of the jury to consider written and oral instructions together,* or as to their duty to consider the appearance of the witnesses on the stand,' or that the jury must answer a special question submitted one way or the other,* or as to 1 Penney v. Johnston, 142 111. App. « Junction Min. Co. v. Ench. Ill 111. 634; Bernier v. Nute, 94 A. 509, 77 N. App. 346. H. 568 ; Barnhart v. North Pacific s St. Louis, I. M. & S. R. Co. v. Lumber Co., 162 P. 843, 82 Or. 657; Thurman, 161 S. W. 1054, 110 Ark. Childers v. Brown, 158 P. 166 ; 81 Or. 188. 1, Ann Cas. 1918D, 170. " Birmingham Ry.. Light & Power „ c. T . „ j.i,„„„j.,^ Tj„ ri^ „f Co. V. Jackson, 73 So. 627, 198 Ala. 2 St. Louis Southwestern Ry. Co. of „_„ ' '^nJo^ J; if°Sston (Tex. Civ. App.) r'nuebner v. State, 111 N. W. 63, 125 S. W. 334. 131 ^jg_ jgg. 3 Stine Oil & Gas Co. v. English s Stevens v. Beardsley, 96 N. W. (Tex. Civ. App.) 185 S. W. 1009. 571, 134 Mich. 606. INST.TO Juries — 43 I 3^ INSTRUCTIONS TO' JURIES 674 the order of the jury's deliberations,* or as to the duty of the jury not to act arbitrarily.^' In a criminal case the court should avoid giving the jury the impression that the conviction of the guilty is of more importance than the acquittal of the innocerit^" , but it is not improper to tell the jury that they should neither convict the innocent nor acquit the guilty. ^^ The question of granting mercy to the accused iti case of a convictioa not being for the jury, it is not error to so instruct them,-*^* and it is. proper to refuse to instruct that, if the evidence is evenly balanced, they shouldleah to the side of mercy." The general charge of the court in a criminal case should always include the direction that if the jury do not believe the defendant to be guilty they must acquit him.^^ § 367. Instructions as to province of court and jury In civil cases, and in many jurisdictions ifl criminal cases as well, it is proper to instruct the jury that, while they are authorized to determine tlie facts, they mu&t take the law governing the same from the coiirt,^® and that they are not to take the law from coun- sel,^' and in some jurisdictions such an instruction must be given on request,^* altl;iough it is not necessary to state such rule in ev- ery instruction.-*^* In jurisdictions where the court is required to instruct, on request, in a criminal case, that the jury may determine the law and the facts, it may nevertheless refuse to tell the jury that they can dis- 9 Randall v. Sterling, D. & E. Elec- Jefferson v. State, 158 S. W. 520, 71 trie Ry. Co., 158 111. App. 56 ; Louis- Tex. Cr. R. 120. ville, N. A. & C. Ry. Co. v. Stevens, 87 Respective provinces of court Ind. 198. ' and jury. An instruction that tlie 10 State V. Wilson, 141 N. W. 337, jury is supreme In the realm of fact, 157 Iowa, 698. and that the court is supreme in the 11 Koenigsteln v. State, 162 N. W. realm of law, whether it correctly 879, 101 Neb. 229. ' states it or not, is proper. White v. 12 Commonwealth v. Dennery, 102 East Side Mill & Lumber Co., 164 P. A. 874, 259 Pa. 223. 736, 84 Or. 224. 13 Avery v. State, 27 So. 505, 124 "Anderson v. State, 50 S. E. 51, Ala. 20 ; Dinsmore v. State, 85 N. W. 122 Ga. 175 ; Cohen v. City of Chica- 445, 61 Neb. 418. go, 197 111. App. 377 ; Hyde v. Town 14 Kirby v. State, 44 So. 38, 151 of S wanton, 47 A. 790, 72 Vt. 242. Ala. 66; Russell v. State (Ala.) 38 is Chicago & E. I. R. Co. v. Bur- So. 291. ridge, 71 N. E. 838, 211 111. 9, re- 15 Steagald v. State,- 22 Tex. App. versing judgment 107 111. App. 23 ; Illi- 464, 3 S. W. 771. nois Commercial Men's Ass'n v. Per- 10 Sharpless v. Pantages, 172 P. rin, 139 111. App. 543 ; Chicago & E. I. 384. 178 Cal. 122: Hill v. State, 9T R. Co. v. Stonecipher, 90 111. App. 511. S. E. 442, 148 Ga. 521: Council v. lo Chicago Union Traction Co. v. Teal, 49 S. E. 806, 122 Ga. 61; Abridge O'Brien, 117 111. App. 183, Judgment V. Nobile, 41 S. E. 78, 114 Ga. 949 ; affirmed 76 N. E. 341, 219 111. 303. 675 DUTIES OF JURY §367 regard the law given^to them by the court,*" and after the court has informed the jury that they are the judges of the law as well as of the facts, it will be misleading and erroneous to tell them that common sense is their best guide, unless its application is limited to the value and weight of the evidence.*^ In the absence of a re- quest therefor, the court need not instruct that the jury are the judges of the law and the facts.*'' In most jurisdictions it is not improper, or at least it is not re- versible error, to tell the jury that they are the exclusive or sole judges of the credibility of the witnesses and of the weight to be given to their testimony,** although they are not always so,** and = Bridgewater v. State, 55 N. E. 737, 153 Ind. 560. See State v. Pow- ell, 33 So. T48, 109 La. 727. Instructions held proper. An in- struction that it was for the jury to determine the facts of the case and to apply to such facts the law as stated in the instructions, and that the in- structions given should be considered as an entire series, was not open to attack on the ground that it was against the plain language of the stat- ute that the jury shall be the judges of the law as well as of the facts. People V. Mirabella, 128 N. E. 874, 294 111. 246. 21 Wright V. State, 69 Ind. 163, 35 Am. Kep. 212. 2 2 Webb V. State, 99 S. E. 680, 149 Ga. 211; Killian v. State, 92 S. E. 227, 19 Ga. App. 750; Williams v. , State, 74 S. E. 902, 11 Ga. App. 151; Reddick v. State, 74 S. B. 901, 11 Ga. App. 150; Keyes v. State, 122 Ind. 527. 28 N. E. 1097. 23 Ala. Brown v. State, 38 So. 268, 142 Ala. 287. Cal. People v. Davis, 81 P. 716, 1 Oal. App. 8, transfer to Supreme Court denied 81 P. 718, 147 Cal. 346. Fla. Glover v. State, 22 Fla. 493. Ga. Central of Georgia Ry. Co. v. McGuire, 73 S. E. 702, 10 Ga. App. 483. 111. Chicago & A. R. Co. v. Fisher, 141 111. 614, 31 N. E. 406, affirming 38 111. App. 33 ; Illinois Cent. R. Co. V. Smith, 111 111. App. 177. Ind. Tucker v. Eastridge, 100 N. E. 113, 51 Ind. App. 632. Iowa. State V. Dunn, 89 N. W. 984, 116 Iowa, 219. Mo. State v. Maupin, 93 S. W. 379, 196 Mo. 164. Neb. Parkins v. Missouri Pac. Ry, Co.. 93 N. W. 197, 4 Neb. (Unof.) 1. Tenn. Bast Tennessee, V. & G. R. Co. V. Fain, 12 Lea, 35. Tex. International & G. N. R. Co. V. Phillips, 69 S. W. 107, 29 Tex. Civ. App. 336. See State v. Kelly, 73 Mo. 608. Flatly contradictory evidence. In the case of flatly contradictory evidence, the court may instruct the jury to judge for themselves the credi- bility of the witnesses; and if the liberty so given is abused by the jury, it will be remedied by the court in subsequently setting aside the verdict. Lanning v. Chicago, B. & Q. R. Co., 68 Iowa, 502, 27 N. W. 478. Charge that jury are jndges. of what is in evidence. Though it is not accurate to charge the jury that they are the judges of what is in evidence, where the context shows that the meaning intended is that the jury are the judges of what the evi- dence proves, the verbal inaccuracy is not misleading. Chattanooga, R. & G. R. Co. V. Owen, 90 Ga. 265, 15 S. E. 858. Charge that jury are sole judges of every fact essential to proof of crime alleged. It was not error to refuse an instruction that the jury are the sole judges of the facts, and every fact essential to the proof of the crime alleged, since such instruc- tion might have misled the jury into the belief that t^ey were judges as to what were the essential facts to be proved by the state. State v. Simas, 62 P. 242, 25 Nev. 432. 2 4 Denver Tramway Co. v. Owens, 20 Colo. 107, 36 P. 848. § 367 INSTRUCTIONS TO JUKIBS 676 in some jurisdictions the rule in criminal cases is that the court should so instruct on the request of the defendant.*® The giving of such an instruction, in other jurisdictions, lies in the discretion of the court,^" and in some jurisdictions it is held that, while such an instruction is not per se reversible error,*' it is useless and may be prejudicial error, as the jury may take it as an intimation that some of the witnesses are not entitled to credit and that some of the testimony is without weight.** In the federal courts in defining the respective provinces of the court and jury, the charge should state that in respect to the law of the case the instructions of the court are controlling and that upon matters of fact, the credibility of witnesses, the weight of evi- dence, and the like the jury, although it may be advised by the court, must finally exercise an independent judgment.** § 368. Duty of court to avoid coercing jury There should be nothing in the intercourse of the court with the jury having the least appearance of duress or coercion,"* and it has been held error to tell the jury that disobedience of the instructions of the court will expose them to punishment for contempt.*^ Where separate indictments against different defendants are tried together, an instruction that the jury may find all of the defendants guilty, ssMiim. State V. Sailor, 153 N. 2 8 People v. Boggs, 20 Cal. 432; W. 271, 130 Minn. 84. Pittsburgh, C, C. & St. L. Ry. Co. Tex. Taylor v. State, 100 S. W. "^^ Collins (Ind.) 80 N. B. 415. 393, 50 Tex. Cr. K. 560 ; Wadbams v. Necessity of x^equest for instruc- State, 99 S. W. 1014, 50 Tex. Cr. I^. tions. Where a party is apprehen- 599 ; Binyon v. State (Tex. Cr. App.) sive that the jury may be unduly in- 56 S. W. 339 ; Lensing v. State (Tex. fluenced by the expression of the court , Cr. App.) 45 S. "W. 572; Barbee v. in its instructions of its opinion of State, 23 Tex. App. 199, 4 S. W. 584 ; the facts, he should specially request Jackson v. State, 22 Tex. App. 442, 3 the court to charge the jury that they, S. W. 111. ^^^ ^^^ ^^^ court, are the exclusive '' ' , ^i, J . , rr TT4. 1, judges of all questions of fact. Bon- o n*= ;, ?o^P ^' CJHadwick, 7 Utah, ^g^g ^ Felsing, 106 N. W. 909, 97 134, 25 P. 787. Minn. 227, 114 Am. St. Eep. 707. Instmctiolis sufficient ■nrithin, 27 Transatlantic Fire Ins. Co. v. rule. A charge that the jury are the Bamberger (Ky.) 11 S. W. 595 ; Peo- "exclusive judges of the facts of the pies v. Commonwealth, 87 Ky. 487, 9 case and the weight of the testimony" S. "W. 810 ; Forman v. Commonwealth, sufficiently instructs them that they 86 Ky. 605, 6 S. W. 579. are the exclusive judges of the credi- 2 8 Smith v. Commonwealth (Ky.) 8 bility of the witnesses. Allison v. g. w. 192. State, 14 Tex. App. 402. ' aa Mobile & O. R. Co. v. Wilson (C. Necessity of request. Failure to C. A. Illl) 76 F. 127, 22 O. O. A. 101. instruct that the jury are the exclu- so Price v. Carter, 22 So. 715, 39 sive judges of questions of fact is not Fla. 362 ; Green v. Telfair, 11 How. ground for reversal in the absence of Prac. (N. T.) 260. a request. State v. Sailor, 153 N. W. si Price v. Carter, 22 So. 715. 39 271, 130 Minn. 84. Fla. 362. 677 DUTIES OF JURY § 369 or find some gtiilty and some not guilty, but they cannot find a verdict as to some and disagree as to others, is erroneous, as tend- ing to coerce the jury. In such a case, if the jury cannot agree, an accused is entitled as of right to go before a new jury.** On the other hand, in a criminal case an objection to instructions on the ground that they are calculated to coerce and intimidate the jury to the prejudice of the defendant does not lie merely because they call the attention of the jury to their plain duty, as where the jury are told that they dare not go outside of the jury box in considering the testimony;** nor are instructions objectionable on such ground because they say that the good order and welfare of the community are involved in the case,** nor because the jury is directed to receive the law as stated by the court, although they may believe that the court is wrong, or that the law should be otherwise,** nor because the jury are advised that a violation of certain proper directions by the court with respect to the conduct of the jury will be punished severely.** The use of the words "should," "shall," or "will," in an instruc- tion with respect to finding for one party or the other if the jury believe from the evidence certain things to exist, is not considered erroneous in some jurisdictions, as tending to coerce a verdict.*' § 369. Urging agreement In a civil action the jury may be urged to make an efiEort to agree, and to that end to reason with one another.** It is proper to charge as to the duty of a juror finding himself in the minority to con- sider whether he is more likely to be right than the majority,*" and it is not improper to tell the jury to return a verdict as soon as they saBucklin v. United States, 159 U. Redfem v. McNaul, 79 111. App. 232, S. 682, 16 Sup. Ct. 182, 40 L. Ed. 305. aflSrmed 53 N. B. 569, 179 111. 208. S3 State V. Mills. 60 S. E. 664, 79 S. Ind. Bader v. State, 94 N. E. 1009, Q "LgY 176 Ind. 268 ; Indianapolis St. Ry. Co. ■34 state V. Tarlton, 118 N. W. 706, '^- ,J°^°f "iJl^- ^- ^l}' ]^ ^""^i f ^• 09 « n 4Q«i S8 J. L. Mott Iron Works v. Metro- ^z ». LI. tyo. politan Bank, 156 P. 864, 90 Wash. SB State V. Johnson, 149 N. W. 730, 555 34 S. D. 601. After two mistrials, trial judge 36 villereal v. State (Tex. Or. App.) was right at outset of charge to stress 61 S. W. 715. importance of agreeing upon jury, «, TTM n-tt- aa a^ flqo Jurors not being instructed they aa ^^R<^f' ^' ™*^'^* surrender opinions, but being 189 Ala. 652. charged they might reason together, 111. Central Ry. Co. v. Bannister, that one might adopt view of another, 62 N. E. 864, 195 111. 48, affirming etc. Nelson v. Atlantic, Gulf & Pacif- judgment 96 111. App. 332 ; North Chi- ic Co., 92 S. E. 194, 107 S. C. 1. cago St. R. Co. V. Zeiger, 54 N. E. ss Boston & M. R. R. v. Stewart (C. 1006, 182 111. 9, 74 Am. St. Rep. 157, 0. A. N. H.) 254 F. 14, 165 C. C. A. aflSrmlng judgment 78 111. App. 463; 434. 369 INSTRUCTIONS TO JUEIBS 678 can, consistently with due deliberation and with their consciences.** In criminal casesy also, it is not improper to urge upon the jury the duty of trying to come to an agreement one way or the other," so long as the court is careful not to suggest which way the ver- dict should be rendered.*^ Thus it is proper to charge that it is the duty of each juror to reason with his fellow jurors to the end of joining in a verdict,** or that no juror should refuse to agree from mere pride of opinion,** or that if a juror should find himself in a small minority he should ask himself whether the fact that the majority differ with him does not indicate that his' own doubt is not a reasonable one or that his own conclusions one way or the other are not correct,*^ and telling the jury that it is a rule of the court to keep them together until they should agree upon a ver- dict, is not improper as tending to coercion.** § 370. Encouraging disagreement ■ The efficient conduct of a judicial controversy should result in an agreement by the jury one way or the other. The ends of justice 40 Gleason v. Denson, 132 P. 530, 65 Or. 199. Instructions held improper as calculated to lead jurors to surrender conscientious convictions. Southern Ins! Co. V. White, 24 S. W. 425, 58 Ark. 277; Highland Foundry Co. v. New York, N. H. & H. B. Co., 85 N. E. 437, 199 Mass. 403. 41 Sigsbee v. State, 30 So. 816, 43 Fla. 524 ; (Sup.) State v. Lieberman, 79 A. 331, 80 N. J. Law, 506, judg- ment affirmed 82 A. 1134, 82 N. J. Law, 748; Territory v. Gonzales, 68 P. 925, 11 N. M. 301 ; People v. Beck- er, 109 N. E. 127, 215 N. Y. 126, Ann. Cas. 1917A, 600, rehearing denied 109 N. E. 1086, 215 N. Y. 721; State v. Hawkins, 18 Or. 476, 23 P. 475. Instrnctions held proper mrithin rule. An instruction telling the jury the effect of a disagreement at com- mon law, and the mitigation of the rule in the United States, and re- marking to them that they would have to remain together and could not separate until they agreed on a verdict, and brought it into court, is not error. State v. Saunders, 14 Or. 300, 12 P. 441. An instruction in a larceny prosecution, that the case was important to the people of the county and state, as well as to accus- ed, and that if the jury could get to- gether and render a verdict, it was the court's desire that they do so ; that they ought to be able to decide the case; that it sometimes happened that disagreeing jurors became arbi- trary and unreasonable, and failed to respect the opinion of the other ju- rors ; that "I hope this is not true of this jury, and have no reason to believe that it is, so I want you to get together, if possible, and render a verdict;" that a retrial would re- sult in considerable expense and trou- ble to accused and the county, and "I hope you will get together and render a verdict, but what the court has said to you win not influence your verdict one way or the other." Jackson v. State, 126 S. W. 843, 94 Ark. 169. 42 Spick V. State, 121 N, W. 664, 140 Wis. 104. 4 3 People V. Richards, 82 P. 691, 1 Cal. App. 566. 44 Myers v. State, 31 So. 275, 43 Ha. 500. 40 Commonwealth v. Tuey, 8 Cush. (Mass.) 1; State v. Egland, 121 N. W. 798, 23 S. D. 323, 139 Am. St. Rep. 1066. ,46 Ammerman v. U. S. (C. 0. A. Neb.) 262 F. 124, certiorari denied 253 U. S. 495, 40 S. Ct. 587, 64 L. Ed. 1030. 679 DUTIES OF JURY § 371 are not ordinarily subserved by a disagreement. Therefore in- structions which have a tendency to restrain jurors from agreeing on a verdict will ordinarily be erroneous, and are properly refused.*" § 371. Charges that juror should not surrender his individual judg- ment or conscientious convictions In some jurisdictions it is improper to instruct,** or it is proper to refuse to instruct,*^ that no juror should consent to a verdict which does not have the approval of his individual judgment and conscience, and that a juror should not surrender his deliberate and conscientious convictions for the sake of unanimity, or because the majority may happen to be against him;®" this being upon the ground that such an instruction is an invitation to a disagree- ment, or presupposes that jurors will violate their oaths with re- spect to rendering a true verdict according to the evidence. Upon this question, however, as upon the question of the duty of the court to instruct that each juror must be convinced beyond a rea- sonable doubt, discussed in a preceding, section (§ 274), there is a conflict of authority. In California, a defendant in a criminal case is entitled to an instruction- that jurors are not required to sur- render their honest convictions for the mere purpose of agreeing upon a verdict.®^ In Kansas it is proper to charge that each ju- ror must ultimately act upon his individual judgment, although the refusal to so charge in a civil case is not reversible error where it does not appear that there is any special necessity for such an 47 Chicago & E. I. K. Co. v. Eains, the jury had had some experience in 67 N. E. 840, 203 111. 417; San An- court during the term at which the tonio & A. P. Ry. Co. v. Choate, 56 S. case was tried, and could he presum- W. 214, 22 Tex. Civ. App. 618. ed to be acquainted with the ordinary 4 8 People V. Le Morte (111.) 124 N. duties of jurors, and the court charg- E. 301; Gehrig V. Chicago & A. K. Co., ed them to engage in no discussion 201 111. App. 287 ; Souleyret v. O'Gara that would tend to prevent their Coal Co., 161 111. App. 60. agreeing, consider the evidence and *9 111. Casey v. Kelly-Atkinson the facts, and reach a verdict, if they Const. Co., 88 N. B. 982, 240 111. 416; could, such as should thereafter satis- City of Evanston v. Richards, 79 N. fy their individual consciences, it was B. 678, 224 111. 444; Comorouski v. not error to refuse a request that it Spring Valley Coal Co., 203 111. App. was the duty of the jury to consider 617; Springfield Consol. Ry. Co. v. the testimony, and to reconcile their Farrant, 121 111. App. 416 ; Chicago & opinions if able to do so, hut that no A. Ry. Co. V. Kirkland, 120 111. App. individual was required to surrender 072 his individual opinion. Shaller v. De- " Mass. See Commonwealth v. Has- troit United Ry., 102 N. W. 632, 139 san, 126 N. E. 287, 235 Mass. 26. Mich. 171. Okl. Tucker v. State (Cr. App.) eo Addison v. People, 62 N. E. 235, 191 P. 201. 193 111. 405 ; State v. Howell, 66 P. Propriety, where court tas in- 291, 26 Mont. 3. stmcied that verdict should satis- " People v. Wong Lowng, 114 P. fy individual conscience. Where 829, 159 Cal. 520. § 372 INSTEUCTIONS TO JURIES 680 instruction or that any prejudice resulted from such refusal; it be- ing held that the same strictness is not required in civil as in crim- inal cases.''* In Indiana it seems to be proper to charge that a juror should yield a conviction only when in the full exercise of his independent and honest judgment he, as an individual juror, is persuaded of his error.** § 372. Instructions tending to increase feeling of responsibility by jury Instructions which impartially direct the attention of the jury to the gravity of the issues involved or the importance of the case to the parties concerned, that it may receive their more careful consideration have been held not improper,^* and it is not improper to instruct as to the importance of the case being tried as consti- tuting a precedent.*® In a criminal case the court may properly speak^of the duty of the jury to the state and the defendant,** and of the gravity of the issues involved,*' where nothing is said to prejudice the rights of the accused,** or to impress the jury with the idea that it is more important to vindicate the law by conviction if the defendant is guilty than to acquit him if he is innocent.** § 373. Instructions objectionable or criticized as tending to lessen sense of responsibility of jurors The court should not give instructions which have a tendency to lessen the sense of the jury's responsibility to arrive at a true and just decision upon the merits of the case being tried before them. This is particularly true in criminal cases. Thus an instruc- tion which in effect informs the jury in a criminal case that it does B2 Central Branch U. P. R. Co. v. upon the jury the importance of the Andrews, 41 Kan. 370, 21 P. 276. case to the state are not erroneous, 6 3 Chicago & Is. R. Co. v. Thomas where they are equally emphatic in (Ind.) 55 N. E. 861. stating its importance to defendant. " Walker v. Walker, 65 S. E. 923, State v Mueller, 141 N. W. 1113, 122 151 N. C. 164; Rhodes v. Granby ^^^^- ^^- ^^ instruction is not er- Cotton Mills, 68 S. E. 824, 87 S. C. 18. foneous which calls the jury's atten- M-t^h qss *"1 consideration of the evidence and r7"c^^' TTT-, nA TVT w ^ nar. the law, so that they may reach a re- _=8 State V. Wilson, 99 N. W. 106O, g^t ^uich will be "just to both sides, 124 Iowa, 264. regardless of what may be the conse- OT Lyles v. State, 60 S. E. 578, 130 guences." People v. Hawes, 98 Cal. Ga. 294; Hoover v. State, 68 N. E. 648, 33 P. 791. 591, 161 Ind. 348; Schwantes v. State, os Brannon v. State, 80 S. B. 7. 140 106 N. W. 237, 127 Wis. 160. Ga. 787. Importance to both aconsed and ° ° Weldon V. State, 94 S. E. 326, 21 state. Instructions which impress Ga. App. 330. 681 DUTIES OP JUET § 374 not matter whether their verdict is for acquittal or conviction is erroneous,*** as is an instruction that the oath taken by a juror im- poses no more obligation upon him to doubt than if no oath" had been administered,**- or an instruction which suggests the possibil- ity that the court will discharge the defendant.** It is proper, however, in a criminal case, to tell the jury that the law does not require that they be absolutely certain of the cor- rectness of their verdict,** and that they are not responsible for the consequences of their verdict,** but only for its truth.*® So it is proper to say that the jury should not be controlled by any fear as to what the punishment may be,** and an instruction that the jury should not be concerned with the matter of punishment in case of a conviction is not error as an invitation to convict,*' and it has been held not improper for the court to suggest to the jury that error in acquitting the defendant cannot be remedied, but that er- ror in convicting him can be corrected by the appellate court,** or to charge in effect that the appellate court stands ready to protect the defendant, should errors be committed in the lower court,** par- ticularly where the trial court expressly charges that the jury must perform their duties without regard to the statutory provision by which an appeal may be taken.'* IRi^ § 374. Obligation of oath It is proper to instruct that each juror should bear in mind the obligation of his oath and should follow the guidance of his con- science.'*- 80 state V. Ah Tong, 7 Nev. 148. 38 N. W. 440; State v. Hannibal, 37 ei Adams v. State, 135 Ind. 571, 34 La. Ann. 619; "State v. Benner, 64 Me. N. E. 956, following Siberry v. Same, 267; State v. Petsch, 43 S. O. 132, 20 133 Ind. 677, 33 N. E. 681. S. E. 993. 62 People V. Harris, 77 Mich. 568, 43 In Georgia, however, it is error N. W. 1060. for the presiding judge to remind the 83 State V. Tedder, 65 S. B. 449, 83 jury of the existence of the supreme S. C. 437. court, to which the defendant could 6* Morgan v. State, 48 S. E. 238, 120 carry his case up, if evidence offered Ga. 499; State v. "Way, 38 S. C. 338, in his behalf had been improperly re- 17 S. E. 39. jected ; such remark, however well- 85 Griggs V. State, 86 S. B. 726, 17 intentioned, being calculated to lessen Ga. App. 301. their sense of their own responsibil- 68 Brantley v. State, 87 Ga. 149, 13 ity, and, at the same time, to convey S. E. 257. the idea that the proof already before 87 People V. Singer, 140 N. W. 522, them was not suflScient to acquit the 174 Mich. 361; State v. Inks, 37 S. defendant. Monroe v. State, 5 Ga. W. 942, 135 Mo. 678. 85. 6 8 United States v. Adams, 2 Dak. 7 o People v. Eerone, 105 N. T. S. 305, 9 N. W. 718. 448, 120 App. Div. 323, judgment, a f- Contra, Hodges v. State, 15 Ga. firmed 89 N. E. 454, 196 N. Y. 522. 117. 71 Wimherly v. State, 77 S. E. 879, 6 ;rerritory v. Keyes, 5 Dak. 244, 12 Ga. App. 540. 375 INSTEUCTIONS TO JURIES 682 § 375. Duty to look to the whole evidence It is an invasion of the province of the jury to instruct that they must consider the evidence bearing on an issue in its entirety,'"* or that their determination of the case must be reached from the whole evidence,'* if, by such an instruction, it is sought to require the jury to give evidentiary force to every part of the evidence,'* since the jury have a right to accept a part and to reject the rest, if the circumstances justify such action. '° On the other hand, a charge should not intimate to the jury that a conclusion may be based upon the evidence of either party, or that the testimony of either side may be rejected, and a fact be established upon less than all the evidence introduced upon the trial; '* and it is proper to instruct that the jury should take into consideration the whole of the evidence and all the facts and cir- cumstances proved at the trial." The jury may be cautioiied against allowing certain circum- stances from preventing their looking to the whole evidence,'* and an instruction that the jury should be careful and slow to reject any testimony is not improper," while instructions which permit the jury to arbitrarily reject any evidence, or the testimony of any %itness, are erroneous.*** Where facts have been improperly "Kansas City, M. & O. Ry. Co. of Texas v. Barjihart (Tex. Civ. App.) 145 S. W. 1049. T3 Missouri, K. & T. Ey. Co. of Tex- as V. Barnes, 95 S. W. 714, 42 Tex. Civ. App. 626. 7* Kansas City, M. & O. Ry. Co. of Texas v. Barnhart (Tex. Civ. App.) 145 S. W. 1049. 's Riddle v. Webb, 110 Ala. 599, 18 So. 323. 76 Ala, Louisville & N. R. Co. v. Abernathy, 73 So. 103, 197 Ala. 512; King V. State, 72 So. 552, 15 Ala. App. 67; Roden v. State, 69 So. 366, 13 Ala. App. 105; Boswell v. State, 56 So. 21, 1 Ala. App. 178 ; Cheney v. State, 55 So. 801, 172 Ala. 368. Tex. International & G. N. R. Co. v. Von Hoesen (Civ. App.) 91 S. W. 604, question certified ansvi^ered by Supreme Court 92 S. W. 798, 99 Tex. 646, and judgment reversed on re- hearing (Civ. App.) 97 S. W. 509. ^^ Carter v. Carter, 152 111. 4.34, 28 N. E. 948, 38 N. E. 669, affirming 37 111. App. 219; Semrau v. Calumet & S. C. Ry. Co., 185 111. App. 203. Iiimiting jury to consideration, of "circumstances." An instruc- tion that the burden rests on plaintiff to establish his cause of action by a preponderance of the evidence, and, in determining upon which side the preponderance lies, the jury should pass upon the credibility of the wit- nesses, "in view of all the evidence, facts, and circumstances proved on the trial, and from all these circum- stances determine upon which side is the preponderance of the evidence," is not misleading as tending to limit the jury to the consideration of "cir- cumstances" as the basis for deter- mining the preponderance of the evi- dence. Pfafeenback v. Lake Shore & M. S. Ey. Co., 142 lud. 246, 41 N. E. 530. 7 8 Anderson v. Martindale, 61 Tex. 188. 7 9 Lyts V. Keevey, 5 Wash. 606, 32 P. 534. 8 Drake v. Chicago, R. I. & P. Ry. Co., 70 Iowa, 59, 29 N. W. 804 ; Cal- isher v. Mathias (Tex. Civ. App.J 43 S. W. 265. 683 DUTIES OP JURY §376: admitted in evidence upbn a disputed issue, it is improper to tell, the jury to determine such issue from all the facts or all the evi- dence.*^ § 376. Duty to reconcile conflicting evidence The court may,*^ and should,** charge the jury, that it is their duty to reconcile appareiitly conflicting evidence, if it is possible to do so, on the theory that witnesses at seeming variance with each other have sworn to the truth,** such an instruction, while con- sidered superfluous in some jurisdictions, not being regarded as on the weight of evidence,*^ and an instruction is erroneous which prevents the jury froni reconciling the discrepancies or contradic- tions in the testimony of witnesses.*® However, while seeming conflicts in the testimony may be shown not to exist, real conflicts can only be disposed of by discarding the testimony of one side or the other, and in case of an irreconcilable .conflict in the testimony the jury should not be required to recon- cile it if they can,*^ and it is not improper to instruct that, when the 81 Lee V. Toledo, St. L. & W. R. Co., 184 111. App. 144 ; Stewart v. Swartz, 106 N. B. 719, 57 Ind. App. 249. 8 2 U. S. Parulo v. Philadelphia & B. Ky. Co., 145 P. 664. Ala. Steen v. Sanders, 22 So. 498, 116 Ala. 155. Ga. CoUum v. Georgia Ry. & Elec- tric Co., 79 S. E. 475, 140 Ga. 573; Rogers v. King, 12 Ga. 229. Neb. H. Hir'schberg Optical Co. v. Michaelson, 95 N. W. 461, 1 Neb. (Unof.) 137. Tex. Houston & T. Cent. B. Co. v. Bell (Civ. App.) 73 S. W. 56, judgment affirmed 75 S. W. 484,. 97 Tex. 71; Howe V. O'Brien (Civ. App.) 45 S. W. 813 ; Liverpool & L. & G. Ins. Co. y. Ende, 65 Tex. 118. Duty to harmonize evidence. It is not error to instruct the jury that, if they find the evidence apparently conflicting, it is their duty, If possi- ble, to "harmonize" it. Instead of tell- ing them to "reconcile" it. Holdridge V. Lee, 3 S. D. 134, 52 N. W. 265. An instruction that it is the duty of the jury to harmonize the conflict in evi- dence, and that the fact that one witness squarely contradicts another does not necessarily nullify the evi- dence on that point, is not ground for reversal; it being reasonable to assume that the jury knew what the trial court meant. Seckerson v. Sin- clair, 140 N. W. 239, 24 N. D. 326, 625 ; Hawkins v. Sinclair, 140 N. W. 246, 24 N. D. 623 ; Burger v. Sinclair, 140 N. W. 246, 24 N. D. 624. 83 Rickerson v. State, 78 Ga. 15, 1 S. E. 178; McGonnell v. Pittsburgh Rys. Co., 83 A. 282, 234 Pa. 396. s* Wright V. Carillo, 22 Cal. 595; Atlantic Coast Line R. Co. v. Beazley, 45 So. 761, 54 Fla. 311; Walters v. Philadelphia Traction Co., 161 Pa. 36, 28 A. 941. 85 Means v. State, 10 Tex. App. 16, 38 Am. Rep. 640. 8 Beers v. Metropolitan St. Ry. Co., 84 N. T. S. 785, 88 App. Div. 9; Moore v. Kendall, 2 Pin (Wis.) 99, 1 Chand. (Wis.) 33, 52 Am. Dee. 145. 8 7 Sherrill v. State, 35 So. 129, 138 Ala. 3; Houston & T. C. E. Co. v. Bell, 75 S. W. 484, 97 Tex. 71, affirm- ing judgment (Civ. App.) 73 S. W. 56 ; Williamson v. D. M. Smith & Co. (Tex. Civ. App.) 79 S. W. 51; Hous- ton, E. & W. T. Ry. Co. v. Richards, 49 S. W. 687, 20 Tex. Civ. App. 203. See HaU v. Brown, 30 Conn. 551. § 376 INSTRUCTIONS TO JURIES 684 evidence is irreconcilably conflicting, the jury must reject that evi- dei;ce which they believe to be false.** An instruction as to the duty to reconcile conflicting evidence will be erroneous, if it is so framed as to intimate an opinion on a matter of fact.** Ordinarily the failure of the court to charge the jury as to their duty concerning the reconcilement of conflicting evi- dence will not be error, if no request is made for such an instruc- tion.®* 8 8 Epps V. State, 102 Ind. 539, IN. oo Watts v. State, 92 S. E. 966, 20 E. 491; State v. Goforth, 37 S. W. Ga. App. 182; Moore v. State, 66 S. 801, 136 Mo. 111. E. 377, 7 Ga. App. 77s 8» Hicks V. Oritcher, 61 N. C. 353, 685 DUTY TO BASE CONCLUSIONS ON EVIDENCE ALONE § 377 CHAPTER XXX INSTRUCTIONS CONSIDBKED WITH BEFEBENOE TO DUTY OV JURY TO FOBM CONCLUSIONS SOLELY EBOM THE EVIDENCE § 377. In general. 378. Instructions as to application of personal knowledge, experience, and observation of jurors. 379. Instructing jury to apply their common sense in weighing evidence. Sou. Effect 01 view of premises. 381. Guarding against influence of public press. 382. Charges as to sympathy, bias, prejudice, or public opinion. 383. Appeals to sympathy or prejudice. 384. Instructions as to reaching verdict by lot or by the law of averages. Confining jury to evidence on question of damages, see ante, § 353. § 377. In general The jury must form their conclusions as to the facts solely from the evidence admitted at the trial.^ The court may* therefore, and should,® give instructions directing the jury that their belief as to where the truth lies on disputed questions of fact should be based on the evidence so produced, and telling them that they have no right to indulge in speculations not supported by the evi- dence,* and instructions so framed as to be likely to lead the jury to infer a fact otherwise than from the evidence,^ or which are calculated to make them think that they can determine the mat- ters in cbntroversy according to their own individual notions, with- 1 Lundon v. City of Chicago, 83 111. Miss. Gordon v. State, 49 So. 609, App. 208. 95 Miss. 543. 2 State V. Hamilton, 157 P. 796, 80 N. Y. Schappert v. Eingler, 45 N. Or. 562; Peterson v. Bcgner, 117 P. Y. Super. Ct. 845. 805, 59 Or. 555 ; International Har- Pa. McGonlgal v. Pittsburgh Rys. vester Co. of America v. Campbell, Co., 89 A. 805, 243 Pa. 47. 96 S. W. 93, 43 Tex. Civ. App. 421. S. C. State v. Cooler, 98 S. E. 845, Dnty not to consider previons 112 S. C. 95. disagreements. Where a murder iRamsey v. Burns, 69 P. 711, 27 case has been three times previously Momt. 154. tried, and on each trial the jury dis- e Mathews v. Hamilton, 23 111. agreed, it is not error to charge the 470; Goulding v. Phillips, 100 N. W. jury that they must in no sense con- 516, 124 Iowa, 496; D'Arey v. Cath- sider such fact, but render a verdict erlne Lead Co., 133 S. W. 1191, 155 according to the evidence in the case, Mo. App. 266 ; Fruit Dispatch Co. v. and consider no other matters except P. Lisey & Co., 4 Ohio App. 300. ^ the evidence and the instructions of Instructions improper ivitliia the court People v. Hawes, 98 Cal. rule. An instruction stating to the 648, 33 P. 791. jury that they are the judges of the 3 111. Dowdey v. Palmer, 122 N. E. facts in the case is misleading, as 102, 287 111. 42; Staninger v. Tabor, leaving them free to consider facts 103 111. App. 330 ; Champion Iron not proved by the evidence, but of Fence Co. v. Bradley, 10 111. App. 328. which they may have been informed § 377' INSTRUCTIONS TO JURIES 686 out regard to the evidence,^ or which warrant the jury in discred- iting and disregarding the evidence of a party, if for any reasons in some other way. Chicago General Ry. Co. V. Noyacek, 94 111. App. 178. An instruction that the jury are to determine on which side the prepon- derance of the evidence lies from the "facts shown by the evidence and from all other facts and circumstanc- es. Balenpvie v. Ansick, 181 111. App. 660. In a criminal trial, it is error for the coui-t to say to the jury that they may consider the fact that the public in a certain locality think the defendants guilty as corroborative ctf the particular facts proven in the case. State v. Whitehead, 54 A. 229. 69 N. J. Law, 63. A 'charge that the jury must sicauit if they can reason- ably reconcile the evidence with the fact that the state's witnesses are mistaken. Bryant v. State, 68 So. 704, 13 Ala. App. 206, certiorari de- nied 69 So. 1017, 193 Ala. 673. a charge, in a prosecution for homicide, that, though the jury might believe from the evidence that accused had intended to kill his wife, yet if be- tween the time of forming such in- tent and the time of the killing "some- thing" , intervened . which displaced such iritent and was in itself the mov- ing cause of the Itilling, the jury could not find defendant guilty of murder in the first degree, was properly re- fused, as calculated to mislead the jury to consider "something" outside the evidence. Thomas v. State, 43 So. 371, 150 Ala. 31. Permitting consideration of doc- uments merely offered in evidence. An instruction to the ..jury that, in determining what weight, if any, is to be given to any book of account «r -memoranda of account offered in evidence, the jury should considr er every fact and circumstance in evidence showing the fairness or un- fairness of the account or memoran- da, etc., is erroneous, as only sruch books of account should have been considered by the jury as were ad- mitted in evidence, not those which were merely offered. Schnellbacher Vi Frank McLaughlin Plumbing Co., 108 111. App. 486. Instructions not improper with- in rule. In a prosecution for theft, an instruction that, if the jury have a reasonable doubt as to whether de- fendant is the identical person who sold the stolen animals to a witness, they should acquit, is not objection- able as permitting the jury to arrive at a belief that defendant was such identical person from sources x)ther than the evidence. ' Ellison v. State (Tex. Or. App.) 72 S. W. 188. On an issue as to whether certain sales of intoxicating liquors were in violation of law, an instruction which, after enumerating certain facts to be con- sidered in determining whether" any of such sales were unlavsrful, direct- ed the consideration of "all other mat- ters throwing light thereon," was not erroneous, as authorizing the jury to believe that it might go outside of the evidence,, where aU such matters ap-. pearing in the evidence were not enumerated. State v. Skillicorn, 73 N. W. 503. 104 Iowa, 97. It Is sufficient to apprise the jury that their verdict must be based upon the evidence in the case alone, that they were in- structed that the law presumes the accused innocent, and that this pre- sumption continues until his guilt is established by competent evidence be- yond a reasonable doubt. Palin v. State, 38 Neb. 862, 57 N. W. 743. A charge, in a prosecution for rape, that if, after hearing all the evidence, ju- ry, were convinced beyond a reason- able doubt they should convict. Zinn v. State, 203 S. W. 704, 135 Ark. 342. A charge that it was the jury's duty to give the case a dispassionate con- sideration, and if they found the de- fendant guilty to convict him ; but if, under the evidence and law, there was a reasonable doubt of his guilt, they should not hesitate to find him not guilty. Gebhardt v. State, 114 N. W. 290, 80 Neb. 363. 8 Smith V. Bellrose, 2G0 111. App. 368; Chicago City Ry. Co. v; Schaefer, 121 111. App. 334 ; Hyde v. Shank, 77 Mich. 517, 43 N. W. 890. "Discretion" of jury. An in- 687 DUTY TO BASE CONCLUSIONS ON EVIDENCE ALONE 1377 known to themselves privately and personally they biqlieve his testimony to be untrue,' or which tend to convey to the jury the impression that they' are independent of the court and the law,* or which are so worded that the belief of the jury without. regard to the evidence,* or without regard to any consideration save that of doing even-handed justice between the parties^" may control and. warrant a verdict, are erroneous. Thus it is error to tell the jury to find as they think right and proper between the parties." or to charge generally, that the jury may find any fact proven struction that the jury, in its sound "discretion," may return a verdict, is objectionable, and the quoted word should be replaced by "judgment." Birmiqgham Ry., Light & Power Co. y. Smith, 69 So. 910, 14 Ala. App. 264. Duty to foUo'w conscience. An instruction that it was the jury's duty to follow their own consciences, ir- resi)ective of anything else in the case, was erroneous. Nilsson v. Mar- tinson, 130 P. 106, 72 Wash. 286. Instructions not improper xritli- in rule. A charge, "If you believe that the offense was committed in this county and state, and if you further believe that the defendant was the party committing the same, you will convict," is not objectionable in authorizing a conviction upon a belief other than that arising from the evidence. Miles v. State, 14 Tex. App. 436. An instruction that, in de- termining what facts are proven in the ease, the jury should carefully consider all the evidence given before them, with all the circumstances of the transaction in question as detail- ed by the witnesses, and they may find any fact to be proved which they think may be rightfully and reason- ably inferred from the evidence giv- en in the case, although there may be no direct evidence of testimony as to such fact, is proper. North Chica- go St. R. Co. V. Rodert, 105 111. App. 314, judgment affirmed 67 N. E. 812, 203 111. 413. An instruction to "con- sider the case fairly and candidly, and give the plaintiff such amount as you tliihk reasonable and just under the circumstances." Corcoran v. Har- ran, 55 Wis. 120, 12 N, W. 468. 'A charge, in an action against a physi- cian for malpractice, where the tes- timony of experts was conflicting, that the jury were not bound to ac- cept their statements or conclusions, but should determine the case upon the whole evidence. Sheldon v. Wright, 67 A. 807, 80 Vt. 298. 7 Rylee v. State, 22 So. 890, 75 Miss. 352. 8 North Chicago St. R. Co. v. Kas- pers, 57 N. B. 849, 186 111. 246 ; Lud- wig V. Sugei-, 84 111. 99. Instrnctions not obnoxions to rule. An Instruction that the court did not mean to give an opinion as to what were or were not the facts in the case, but that it was solely and exclusively for the jury to determine from the evidence, and having done so to apply to them the law as stated in the instructions. North Chicago St. R. Co. V. Kaspers, 57. N. E. 849, 186 111. 246, affirming judgment 85 111. App. 316. An instruction that the jury are to be guided by their own "judgment" in determining whether from all the facts and circumstances in a case, a party is guilty of the charge against him, is not erroneous as telling them that they may dis- regard the rules of law in coming to such determination. Timmis v. Wade, 5 Ind. App. 139, 31 N. E. 827. 9 Jackson v. Johnson, 212 111. App. 61; People v. Peden, 109 111. App. 560 ; Pfirshlng v. Heitner, 91 111. App. 407 J Chicago, B. & Q. R. Co. v. Libey, 68 111. App. 144; Coles V. Nikirk, 51 P. 41, 8 Kan. App. 857. 10 Chicago North Shore St. Ry. C5o. V. Hebson, 93 111. App. 98. , 11 Ruckersville Bank y. HemphiU, 7 Ga. .396; Bailey v. Ormsby, 3 Mo., 580. § 377 INSTETJCTIONS TO JURIES 688 •which they may think rightfully and reasonably inferable from the evidence.^^ Under this principle instructions which, in either a civile* or a criminal case/* suggest to the jury the possible consequences Of tlieir verdict, are improper, and ordinarily such an instruction is properly refused." Under this principle it is proper for the court to instruct the jury not to be influenced by such considerations as that the defendant has been in jail for a long time on account of the charge on which he is being tried,^^ or by any speculation as to the final judgment or sentence of the court in case they find the defendant guilty,^' or by the consideration that the complain- ing witness may have a civil remedy against the defendant/* and cautionary instructions against considering certain acts of the court in rulings upon motions, etc., as indicating its opinion upon the facts may be sometimes necessary.^* Instructions will not be erroneous because they do not expressly restrict the jury to the evidence.^" If, construing the instructions as a whole, they do not authorize the jury to base their verdict in whole or in part on matters outside of the evidence introduced at the trial and a reasonable understanding of them requires the jury to look only to such evidence they will be sufficient in this re- gard.*^ It is not necessary to repeat in each clause of an instruc- 12 Henry v. Colorado Land & Wa- charge the jury to base Its findings ter Co.. 51 P. 90, 10 Colo. App. 14. solely on the evidence Is not fatal IS Miller V. United States, 37 App. where complainant asked no Instruc- D C 138 ; Eay v. Patterson, 81 S. tion on the subject. Burr v. McOal- E 773, 165 N. C. 512; Catasauqua lum, 80 N. W. 1040, 59 Neb. 326, 80 Mtg. Co. V. Hoplilns, 141 Pa. 30, 21 Am. St. Rep. 677. A. 638, 28 Wlily. Notes Cas. 146. 21 HI. Chicago City Ry. Co. v. 14 State V. Crofford, 96 N. W. 889, Carroll, 68 N. E. 1087, 206 IH. -318, ]21 Iowa, 395; Menn v. State, 112 affirming judgment 102 111. App. 202; N W 38, 132 Wis. 61. Davis v. Northwestern El. Ry. Co., leSraltli V. Ross, 31 App. D. 0. 48 N. E. 1058, 170 111. 595; Padfleld 348 ; SohmoM v. Buscomi, 117 N. T. v. People, 146 111. 660, 35 N. E. 469. S. 788, 133 App. DIv. 20. Imd. Golibart v. S.ullivan, 66 N. E. leGoss V. State, 81 S. E. 247, 14 igg, 30 Ind. App. 428; Eurelja Blocli Ga. App. 402; Foskey v. State, 45 S. Coal Co. v. Wells, 61 N. B. 236, 29 E. 967, 119 Ga. 72. Ind. App. 1, 94 Am. St. Rep. 259; 17 People v. Bernal, 180 P. 825, 40 citizens' St. R. Co. v. BaUard, 52 N. Oal. App. 358; Nicholson v. State, e. 729, 22 Ind. App. 151. 106 P. 929, 18 Wyo. 298. Mo. ScharfC v. Southern Illinois 18 State V. Leonard, 144 P. 113, 73 Const. Co., 92 S. W. 126, 115 Mo. App. Or. 451, rehearing denied 144 P. 681, 157. 73 Or. 451. Consideration b£ excluded eiri> 10 Meeteer v. Manhattan Ry. Co., dence. An instruction "to consider 63 Hun, 533, 18 N. T. S. 361. all the evidence in the case" is not 20 Isaacs V. McLean, 106 Mich. 79, erroneous, as allowing the consldera- 64 N. W. 2. tita of evidence that had been admit- Bequest necessary. Failure to ted and afterwards excluded by the 689 DUTY TO BASE CONCLUSIONS ON EVIDENCE ALONE § 377 tion that the jury must base their belief as to the facts upon the evidence,** and it is held that the words "from the evidence" are implied in all instructions tp find for one party or the other, if the jury find certain facts to he. established ; *» nor is such formula reijuired to be used where the charge is based upon undisputed evidence.** The phrases "under the evidence and the instructions of the court" and "from the preponderance of the evidence in this case and under the instructions of the court" are held not to be mis- leading, and to be proper substitutes for the customary term "from the evidence." *^ Where events, not a part of the trial, but having a tendency to affect' the sympathies or emotions of the jury, occur in the court- room, it is within the discretion of the trial judge to refuse to in- struct that the jury shall not consider such occurrences.*^ A charge that in determining a disputed question of fact the jury must look to all the circumstances connected with the transaction is not objectionable, as authorizing them to look to matters not in evidence,*' and an instruction that the jury should rely on their court, where, in another instmetion, they are directed to disregard any evidence that has been stridden out. Tedens V. Sanitary Dist. of Chicago, 149 111. 87, 36 N. B. 1033. 2 2 Miller v. Balthasser, 78 lU. 302; Durham v. Evans, 56 111. App. 513; Wear v. Duke, 23 111. App. 322 ; Ganz V. Metropolitan St. Ry. Co. (Mo.) 220 S. W. 490. 23 Poland V. Miller, 95 Ind. 387, 48 Am. Bep. 730; Blumhardt v. Bohr, 70 Md. 328, 17 A. 266 ; Baker v. Kan- sas City, C. & S. Ry. Co., 52 Mo. App. 602. "If the jury believe." An in- struction dealing with conflicting evidence Is not bad for failing to use the words "from the evidence" after the words "if the jury believe." Mansfield v. Morgan, 37 So. 393, 140 Ala. 567. 24 Schmidt v. Pfau, 114 111. 494, 2 N.E. 522; Carpenter v. Hyman, 66 S. E. 1078, 67 W. Va. 4, 20 Ann. Gas. 1310. 2 5 Chicago & W. I. R. Co. v. New- ell, 113 111. App. 263. 2 8 Chicago & E. R. Co. v. Meech, 45 N. E. 290, 163 111. 305. 2 7 Walcott V. Brander, 10 Tex. 419. INST.TO JtJKIES — 44 "Facts and circumstances on the trial." An instruction that the jury are the exclusive judges of the credibility of the witnesses, and that they "Should take into consideration the whole of the evidence, and all the facts and circumstances on the trial, giving to the several parts of the evi- dence such weight as they are enti- tled' to," etc., is not objectionable as permitting the jury to consider mat- ters outside the' evidence, the clause "facts and circumstances on the tri- al" being limited by the instruction "to the several parts of the evidence." Fischer v. Coons, 26 Neb. 400, 42 N. W. 417. Instructions permitting jury to consider facts and circumstances in evidence, "or," in the disjunctive, other facts and circumstances obseirv- ed during trial, was not erroneous as permitting j'ury to consider facts and circumstances observed during trial outside of those in evidence. Potter V. Womach, 162 P. 801, 63 Okl. 107. An instruction to the jury to find for the plaintiff if they should believe certain facts from the evidence "and all the circumstances proven in the case" could not have misled the jury. Bruen V. . Grahn, 5 Ky. Law Rep. (abstract) 323. § 377 INSTRUCTIONS TO JUEIBS 690 own recollection and belief in preference to those of the attor- neys is not improper.^* A particular instruction which fails to confine the jury to the evidence will not necessarily, or perhaps not ordinarily, constitute cause for reversal. Thus an instruction that if the jury find the issues for the plaintiff they may award him damages in such amount "as they believe" will compensate him, while erroneous, will not work a reversal where the court has also instructed that every element essential to a recovery must be established by a preponder- ance of the evidence.** § 378. Instructions as to application of personal knowledge, expe- rience, and observation of jurors The court may instruct,^* and, on request, the jury should be instructed,*^ that the case is to be tried upon the evidence given at the trial, and not upon information that one or more jurors may have outside of the record. Instructions which permit the jury, not only to consider the evidence introduced before them, but their own special personal knowledge with regard to the facts in con- troversy, and draw conclusions therefrom are erroneous,** as are. It bas been beld, bowever, that charges to the Jury which instruct them that In coming to their conclu- sion they must "carefully consider the circumstances of the case" are misleading. Ijarkinsville Mln. Co. v. Flippo, 30 So. 358, 130 Ala. 361. 2 8 Meagher v. Fogarty, 152 N. "W. 833, 129 Minn. 417. 2 9Kelley v. John R. Daily Co., 181 P. 326, 56 Mont. 63. 3 Griggs V. State, 86 S. E. 726, 17 Ga. App. 301; State v. Gaymon, 44 S. C. 33, 22 S. E. 305, 31 L. R. A. 489, 51 Am. St. Rep. 861 ; State v. Jones, 29 S. C. 201, 7 S. E. 296. Application of knowledge deriv- ed by some jurors from trial of preTions cases. Where, on the trial of a criminal case, the jury, some of whom had at the same term tried other similar cases, during the trial of which law books had been read to the jury by permission of the court, were instructed that they might bring to their aid, in deciding on the evi- dence, any knowledge which they had acquired from any source equally open to them all, but not any partic- ular knowledge as to the law or the facts communicated to a part of them only; and that they were to decide this case on the evidence in- troduced into it, and not on any evi- dence of the law or facts introduced into other cases, in which some of them did not sit; and that the jury were bound to consider the instruc- tions of the court on the law of the case as evidence of the law; and that they must decide the case ac- cording to the evidence. It was held that the defendant had no ground of exception. Commonwealth v. Law- rence. 9 Gray (Mass.) 133. siDoggett V. Jordan, 2 Fla. 541; Downing v. Farmers' Mut. Fire Ins. Co., 138 N. W. 917, 158 Iowa, 1 ; Citi- zens' St. R. Co. V. Burke, 40 S. W. 1085, 98 Tenn. 650. 32 Ga. Gibson v. Carreker, 91 Ga, 617, 17 S. E. 965. ni. Ottawa Gas Light & Coke Co. v. Graham, 28 111. 73, 81 Am. Dec. 263. Kan. Chicago, R. I. & P. Ry. Co. V. Spring Hill Cemetery Ass'n, 57 P. 252, 9 Kan. App. 882. Me. Page V. Alexander, 84 Me. 83, 24 A. 584 ; Douglass v. Trask, 77 Me. 35 ; State v. Bartlett, 47 Me. 388. 691 DUTY TO BASE CONCLUSIONS ON EVIDENCE ALONE § 378 in some jurisdictions, instructions authorizing them to view the evidence in the light of their own knowledge, observation, and ex- perience in life, not limiting them to such knowledge, observa- tion, and experience as they share in common with men general- ly,** and where a knowledge of certain facts in controversy is not common to persons generally it will be misleading and erroneous to charge that the jury may use their general knowledge in deter- mining such facts.** Although there is some conflict in the cases, the rule supported by the weight of authority seems to be that it is error to instruct that the jurors can act upon their private and personal knowledge of the character of a witness in determining his credibility,** and it is proper to instruct that jurors should disregard any such personal knowledge, and. not impart it to fel- low jurors.*® It is not improper, however, in some jurisdictions, to charge in effect that the jurors are entitled to make use of their own knowl- edge and judgment in determining the weight of the evidence upon ■ a disputed question of fact, if the jury cannot understand from the charge as a whole that they can act upon such knowledge, re- gardless of the evidence,*'' and, as indicated by the foregoing dis- cussion, the jury, in determining questions of fact, may apply the knowledge and experience which they have in common with all men, and an instruction to that effect is proper;** it being said Mich. Karrer v. City of Detroit, ^^ Ross v. State, 170 S. W. 305, 75 106 N. W. 64, 142 Mich. 331; Bur- Tex. Cr. R. 59. rows V. Delta Transp. Co., 106 Mich. 37 Ainslie v. Biggs, 211 lU. App. 582, 64 N. W. 501, 29 L. R. A. 468; 463; State >. Bjelkstrom, 104 N. W. Wood V. Barlser, 49 Mich. 295, IB N. 431, 20 S. D. 1 ; Lindquist v. Town of W. 597. Bradley, 152 N. W. 827, 161 Wis. 175 ; N, y. Beves v. Hyde, 11 N. T. St. Solberg v. Robbins Lumber Co., 133 Rep. 681 ; Lenahan v. People, 5 n. W. 28, 147 Wis. 259, 37 L. R. A. (N. Thomp. & C. 265, 3 Hun, 164, affirmed s.) 790 ; Neanow v. XJttech, 46 Wis. without opinion 62 N. T. 623. 58I, 1 N. W. 221. ^i^Loveman y. Birmingham By. L u-^^^^i ^^ to reject testi- & P. Co., 43 So 411, 149 Ala 515 ^ ^.^j^ ^ ,^ Sloss-Sheffield Stee & J^on Co v. j^„ Ji^^ge. On an isstie whether a Hutchinson, 40 So. 114 144 Ala. 221 , ^^^ ^^^ ^^^^ valuable because a P'^i^^^^'J^'w s^ fi■^^?pb 88i-59L "ttle out of plumb, where some of buhl, 91 N. W. 880, 65 Neb. 889, 59 U ^^^ testimony was extravagant, a R. A. 920. charge to reject any testimony that 34 Waite V. Teeters, 36 Kan. 604, 14 ^^^ ^^^ ^^^ ^^^^ ^^^^ ^^^ i^ ^^^^^ Pac. 146: n.A n„ QdA -la in line, if such testimony did not 35 Collins V. State, 94 pa. 394, 19 ^ .^.j^ ^.^^ ^ ,^ knowledge of S. E. 243 ; Pettyjohn v. Liebscher, 92 matters is proper. Stiles v. Ga. 149, 17 S. E. 1007; Chattanooga, gdUsvme MUllng Co! 87 Wis 266, K. & O. R. Co. V. Owen, 90 Ga. 265, ^g jr w 411. ■* c o Tji 853 • ' ■ Co'iitra, Howard v. State, 73 Ga. ss Ala. Sloss-Sheffleld Steel & Iron 83 • Head v. Bridges, 67 Ga. 227; An- Co. v. Hutchinson, 40 So. 114, 144 Ala. derson v. Tribble, 66 Ga. 584. 221 ; Bo^enbaum v. State, 33 Ala. 354. 379 INSTRUCTIONS TO JURIES 692 in one jurisdiction that the experience of the juror is the lamp of reason by which his judgment is controlled, and that he may con- sult and be governed by it in all cases in which the evidence is conflicting and not declared to be conclusive.** Such rule applies in determining the credibility of witnesses.** § 379. Instructing jury to apply their common sense, in weigh- ing evidence The common sense of the jury, brought to bear upon the consid- eration of the testimony and in obedience to the rules laid down by the court, is the most valuable feature of the jury system, and has done more to preserve its popularity than any apprehension that a bench of judges will willfully misuse their power." It is there- fore proper to instruct the jury that there is nothing to prevent them from applying to the facts of the case the sound common sense which is supposed to .characterize their daily transactions, and that they would apply to any other subject that came under their consideration and that demanded their judgment. Such an instruction does not authorize the jury to depart from the rules Colo. Denver & R. G. R. Co. v. Warring, 86 P. 305, 37 Colo. 122. Fla. Marshall v. State, 44 So. 742, 54 Fla. 66. 111. People V. Turner, 107 N. E. 162, 265 lU. 594, Ann. Gas. 1916A, 1062. Kan. Fisher v. O'Brien, 162 P. 317, 99 Kan. 621, L. R. A. 1917F, 610; Smith V. St. L. & S. F. K. Co., 148 P. 759, 95 Kan. 451 ; Sanford v. Gates, 38 Kan. 405, 16 P. 807 ; Missouri Riv- er R. R. CO. v. Richards, 8 Kan. 101. Minn. Johnson v. Hillstrom, 37 Minn. 122, 33 N. W. 547. Instrnctions not improper witb- in rale. An Instruction that, in con- sidering the damages, the jury might consider the facts provfed in connection with their own knowledge and experi- ence, was not objectionable as not limiting the jury to such knowledge as men ordinarily possess, vhere such knowledge related to the value of the services, the expense of clothing, edu- cation, and support of a child alleged to have been wrongfully killed by de- fendant. Illinois Cent. R. Co. v. War- riner, 82 N. E. 246, 229 111. 91, affirm- ing judgment 132 111. App. 301. An instruction in a criminal case that the Jury might consider in ascertaining the truth the demeanor of a witness, etc., and "all other laaings that might be inferred from experience or which the jury may deem proper under the circumstances," is not open to ob- jection that the jury might infer from their own experience what the ver- dict should be, and arrive at a con- clusion not based on evidence. State V. Runyon, 107 A. 33, 93 N. J. Law, 10. Knoirledge of city ordinances. In an action for injuries to a street- car passenger, caused by collision with a locomotive at a crossing, it was proper to refuse to charge that the jury should not consider any knowledge they might possess of the city ordinances regulating the speed of trains, the ringing of the engine bell, or the placing of watchmen at crossings. Houston City St. Ry. Co. v. Ross (Tex. Civ. App.) 28 S. "W. 254. 8 8 Willis V. Lance, 28 Or. 371, 43 P. 384, 487. *o Jeimey Electric Co. v. Branham, 145 Ind. 314, 41 N. E. 448, 33 L. R. A. 395; Nye-Schneider-Fowler Co. v. Chicago & N. W. Ry. Co. (Neb.) 179 N. W. 503. *iDunlop V. United States, 17 S. Ct. 375, 165 U. S. 486, 41 L. Ed. 799. €93 DUTY TO BASE CONCLUSIONS ON EVIDENCE ALONE § 380 of evidence, or to decide the case upon abstract notions of their own, or from facts gathered outside of the testimony.** An in- struction, however, which in effect tells the jury that their com- mon sense is a better guide than the rules of law given to them by the court, is misleading, since such rules may themselves be said to be the concentrated common sense of many generations.** § 380. Effect of view of premises In most jurisdictions the impressions made upon the minds of the jury by the examination of premises involved in the litigation, to which they have been sent for the purpose of a view, do not constitute a part of the evidence in the cause,** and an instruction which permits the jury to use as evidence what they saw or learned on such a view,*^ or which warrants the jury in finding a material fact upon their own judgment from what they saw, regardless of any of the sworn testimony,** is erroneous. The intent of the statute allowing such view is to enable the jury to better understand and cornprehend the testimony of the witnesses, and thereby the more intelligently to apply it to the issues on trial before them, and not to make them silent witnesses in the case,*'" and it may be necessary in some cases to instruct the jury to disregard knowledge obtained by a view.** On the other hand, the court is not required to charge that, in determining the rights of the parties the jury should not con- sider anything they saw at the view, since obedience to such, an instruction would defeat the object of the view,** and where, be- 42Dunlop V. United States, 17 S. Youree, 38 So. 135, 114 La. 182, 3 Ct. 375, 165 U. S. 486, 41 L. Ed. 799. Ann. Cas. 300. 43 Densmore v. State, 67 Ind. 806, ' , l." City of Junction City v. Blades, 66 Am. nev. »o. ,^, e, . -cr III Wisconsin, it seems that, if 44 Heady v. Vevay, Mt S. & V. witnesses testify to sometliing which Turnp^e Co. 52 Ind 117. Compare ^j^^ ^ ^^^ ^ the eviden>je of City of Topeka v. Martineau, 22 P. ^^^^^ ^^^^^ ^^ ^^^ ^^^^ ^ be false, 419, 42 Kan. 387, 5 L. R. A. 775. ^jjgy ^g^y j^ (.qj^ ^jj^t they may disre- 45 Morrison v. Burlington, C. R. & gard such testimony and find the N. Ey. Co., 84 Iowa, 663, 51 N. W. 75 ; facts as they know them to be, al- Schultz V. Bower, 57 Minn. 493, 59 though no witness gives testimony in N. W. 631, 47 Am. St. Rep. 630. support of such finding. Washburn v. In Iionisiana, in eminent domain Milwaukee & L. W. R. Co., 18 N. W. proceedings, the jury of freeholders 328, 59 Wis. 364. are chosen as experts, and their view 47 Wright v. Carpenter, 49 Cal. 609; of the premises Is made for the pur- Close v. Samm, 27 Iowa, 503. pose of obtaining direct Information ; 48 Lydstron v. Rockingham County they may therefore be told that they Light & Power Co., 70 A. 385, 75 N.H. may consider their own Information 23, 21 Ann. Cas. 1236. and their own opinions acquired from 49 state v. Henry, 41 S. E. 439, 51 a view as a part of the evidence W. Va. 283; Fox v. Baltimore & O. in the case. City of Shreveport v. R. Co., 34 W. Va. 466, 12 S. E. 757. §381 INSTRUCTIONS TO JURIES 694 fore a view by the jury, they are dautioned not to consider their own "observations as evidence, and are- properly instructed as to the purposes of the view, an instruction in regard to the same matter need not be also given at the close of the trial.®* An instruction which fairly indicates to the jury that the proper object of a view is to better enable the jury to understand the evidence, or that,- where there is a conflict in the testimony, they may resort to the evidence of their senses on the view to -determine the truth, and does not place such view on an equality with the evidence, is not improper.*^ § 381. Guarding against influence of public press The refusal of an instruction warning the jury against being influenced by newspaper articles is not necessarily error,®^ but the case may be of such notoriety and public interest that it will be the duty of the court to so instruct the jury that they will not. be likely to see newspapers commenting on the proceedings.*^ § 382. Charges as to sympathy, bias, prejudice, or public opinion It is largely discretionary with the trial court whether to give, or to refuse to give, cautionary instructions to the jury against being influenced by sympathy, prejudice, or bias one way or the other. *** It will ordinarily be proper to give such an instruc- tion,"® as where there is danger of racial prejudice entering into 5 Cox V. Chicago & N. W. Ey. Co., 95 Iowa, 54, 63 N. W. 450. 51 Murray v. Vandalia R. Co., 202 111. App. .362 ; City of Clay Center v. Jevons, 2 Kan. App. 568. 44 P. 745; Ham V. Delaware & H. Canal Co., 155 Pa. 548. 26 A. TS7, 32 Wkly. Notes Cas. 335, 20 L. R. A. 682; Seattle & M. R. Co. V. Roeder, 70 P. 498, 30 Wash. 244, 94 Am. St. Rep. 864. 52 Union Cent. Life Ins. Co. v. Skip- per (G. C. A. Ark.) 115 F. 69, 52 C. C. A. 663 ; Beyer v. Martin, 120 111. App. 50. 53 Ogren v. Rockford Star Printing Co., 123 N. E. 587, 288 111. 405. BtAla. Snedecor v. Pope. 39 So. 318, 143 Ala. 275. 111. Birmingham Fire Ins. Co. v. Pulver, 27 111. App. 17, affinned 126 111. 329, 18 N. B. 804, 9 Am. St. Rep. 598. Miss. Clark v. State, 59 So. 887, 102 Miss. 768. Neb. Hoskovec v. Omaha St. Ry. Co., 123 N. W. 305, 85 Neb. 295. Or. Nordin v. Lo\'egrea Lumber Co., 156 P. 587. 80 Or. 140. Va. Powhatan Lime Co. v. Whet- zel's Adm'x, 86 S. E. 898, 118 Va. 161. 5 5 Ala. Lunsford v. Walker, 93, Ala. 3©, 8 So. 386. Cal. People V. Bojorquez, 169 P. 922, 35 Cal. App. 350. Fla. Lindsey v. State, 43 So. 87, 53 Fla. 56. Ga. Jackson v. Seaboard Air Line Ry., 78 S. E. 1059, 140 Ga. 277; At- lantic & B. Ry. Co. V. Bowen, 54 S. E. 105, 125 6a. 460. 111. People V. Duzan, 112 X. E. 315, 272 111. 478. Minn. Bingham v. Bernard, 36 Minn. 114, 30 N. W. 404. N. C. State V. FUlkerson, 61 N. C. 233. ■ W-ash. Wheeler v. Hotel Stevens Co., 127 P. 840, 71 Wash. 142, Ann. Cas. 1914C, 576. Instructions proper ivithin, rnle. An instruction that it is jury's duty to follow the law, and the instructions 695 DUTY TO BASE CONCLUSIONS ON EVIDENCE ALONE § 382 the deliberations of the jury,^ or where a corporation is a party." An instruction, in an action against a corporation, to consider the evidence with the same fairness that the jury would show to a private individual, is a cautionary instruction, and not objection- able as on the weight of the evidence.^ In criminal cases it is proper to caution the jury against being biased or influenced by sympathy for the accused or his relatives, or by public opinion or prejudice,®" and such an instruction is not prejudicial to the accused, as requiring the jury to determine the case, freed from any of the mental processes by which men usually, arrive at conclusions.** On the other hand, the refusal of the trial court to caution the jury against the influence of sympathy or prejudice or public sen- timent will not usually be cause for reversing a judgment i'*^ ju- rors being presumed to be of sufficient intelligence to know their duties in this regard.*^ Thus the court need not, as*% general rule, admonish the jury not to entertain a bias for the plantiff because the defendant is a corporation, or charge that a corporation is entitled to the same protection under the law as individual liti- given by the court, and they were bound to decide a case without any feeling, sympathy, or prejudice for or against plaintiff and the other de- fendants, and on its merits, as be- tween two individuals, was proper. Hoag V. Washington-Oregon Corpora- tion, 147 P. 756, 75 Or. 588, modifying judgment on rehearing 144 P. 574, 75 Or. 588. In an action against a coal mining company at the time of the labor troubles, it was proper to instruct the jury not to be influenced by sympathy or prejudice, aijd that a disregard of such instruction would lead to the setting aside of the ver- dict. Bachert v. Lehigh Coal & Nav- igation Co., 57 A. 765, 208 Pa. 362. 5 8 People V. Taylor, 87 P. 215, 4 Cal. App. 31 ; Summerford v. State, 49 S. E. 268, 121 Ga. 390 ; McLaurin v. Wil- liams, 95 S. E. 559, 175 N. O. 291; State V. Barwicb, 71 S. E. 888, 89 S. O. 153. 7 Cornell v. Manistee & N. E. R. Co., 75 N. W. 472, 117 Mich. 238 ; Huss V. Heydt Bakery Co., 108 S. W. 63, 210 Mo. 44 ; Davis v. Atlanta & C. A. L. By. Co., 41 S. E. 892, 63 S. O. 577 ; Id., 41 S. E. 468, 63 S. C. 370; N. & C. R. R. V. Smith, 11 Heisk. (Tenn.) 455. 6 8 Lecklieder v. Chicago City Ry. Co., 172 111. App. 557. 5 9 Day v. State, 44 So. 715, 54 Pla. 25 ; McTyier v. State, 91 Ga. 254, 18 S. E. 140 ; People v. Beecher, 154 111. App. 229 ; State v. Trapp, 109 P. 1094, 56 Or. 588. 00 State V. Harsted, 119 P. 24, 66 Wash. 158. 61 People V. Feld, 86 P. 1100, 149 Cal. 464 ; Chicago Union Traction Co. V. Goulding, 81 N. B. 833, 228 111. 164 ; Doyle V. Dobson, 74 Mich. 562, 42 N. W. 137; Cloherty v. Griffiths, 144 P. 912, 82 Wash. 634. Cb.arge not to disregard proof -nvliich harmonizes nrith sympa- tbies. A charge to the jury "that they have no right to act upon their sympathies without proof, but are not to disregard the proof, because it happens to concur with their sympa- thies, but are to be governed by it," is not error. Sheahan v. Barry, 27 Mich. 217. 62 Grand Rapids & I. R. Co. v. Horn, 41 Ind. 479 ; P. Lorillard Co. v. Clay, 104 S. B. 384, 127 Va. 734. §382 INSTEUCTIONS TO JURIES 696- gants.** It is only under exceptional circumstances, or when some- thing has transpire.d to indicate that the jurors are unmindful of their sworn duty, that a party will be entitled to such an instruc- tion."* As indicated by the foregoing statement the circumstances may be such that the ends of justice will be best served by cautioning the jury against allowing any considerations of sympathy or prej- udice to enter their deliberations, in which case the court should give an appropriate instruction."® So such instructions may some- •times be required in actions for personal injuries,** and in criminal cases the court should, when the circumstances so require, cau- tion the jury against convictions from prejudice or upon insuffi- cient evidence,®'" as where there is a strong prejudice in the county against the defendant."* § 383. Appeads to sympathy or prejudice The court should not in its instructions use language calculated to cause the jury to be swayed by their sympathies"* or their prej- 68 state V. Barton, 142 P. 348, 70 Or. 470. 6 9 People V. Williams, 17 Cal. 142; Amend v. Smith, 87 111. 198 ; National Council of Knights and Ladies of Se- curity V. O'Brien, 112 111. App. 40; Robertson v. Brown, 76 N. W. 891, 56 Neb. 390; Hoag v. Washington-Ore- gon Corporation, 147 P. 756, 75 Or. 588, modifying judgment on rehearing 144 P. 574, 75 Or. 588. Instrnctions erroneous within rule. Where, in an action against an insurance company by the widow and child of the insured, the court opened his charge by stating that, when wo- men and children were connected with a case, he made it a rule to say as little as possible to the jury, because his sympathies frequently got the bet- ter of his judgment, and he subse- quently said that, while he always tried to close his eyes to the fact that a woman and child had an interest in a suit, he could not always do it, and did not suppose the jury could and proceeded: "It Is not expected. If a man can do that, he is no better than a brute. He is as bad as the heathen Is supposed to be, and worse than the horse thief is thought to be. If he could close his eyes to that fact, lose all sense of decency and self-re- spect, he would not be At for a ju- 63 St. Louis, I. M. & S. Ry. Co. v. Lyman, 57 Ark. 512, 22 S. W. 170 ; Same v. Paup (Ark.) 22 S. W. 213 ; Spear v. United Railroads of San Francisco, 117 P. 956, 16 Cal. App. 637; Central Branch U. P. R. Co. v. Andrews, 41 Kan. 370, 21 P. 276 ; Tur- ner V. Southwest Missouri R. Co., 120 S. W. 128, 138 Mo. App. 143. 64 Johnson v. St. Louis & S. Ry. Co., 73 S. W. 173, 173 Mo. 307 ; Cope- land V. Omaha & C. B. St. R. Co., 151 N. W. 947, 98 Neb. 42. 65 People V. Turner, 107 N. E. 162, 265 111. 594, Ann. Cas. 1916A, 1062; Smith V. Sanitary Dist. of Chicago, 103 N. E. 254, 260 111. 453 ; Chapman V. Pfarr, 123 N. W. 992, 145 Iowa, 196; Shanks v. Oregon-Washington R. & Nav. Co., 167 P. 1074, 98 Wash. 509. Caution against popular preju- dice. Where the court discovers a popular prejudice against a party. It should state the law so clearly and unequivocally as to leave the jury no escape from their duty. Quinby v. Railway Co., 2 Del. Co. Ct. R. (Pa.) 28S. 66 Jones & Adams Co. v. George, 81 N. E. 4, 227 111. 64, 10 Ann. Gas. 285, reversing judgment 125 111. App. 503. 67 Cook V. State, 35 So. 665, 46 Fla. 20; Doyle v. State, 22 So. 272, 39 Fla. 155, 63 Am. St. Rep. 159. 697 DUTY TO BASE CONCLUSIONS ON EVIDENCE ALONE § 883 udices" rather than the evidence, and instructions containing lan- guage of this description are properly refused,'^ But not every insti'uction which embodies matter that might conceivably make an appeal to the emotional side of a juror will be cause for re- versing a judgment.'^ Such matter will not render an instruc- tion objectionable, if it is proper for the jury to consider.'^ and an instruction which, while telling the jury that it is natural and proper for them to feel sympathy, also cautions them that they ror"— it was held that this was ground for reversal of a judgment in favor of plaintiffs. Northwestern Mut. Life Ins. Co. V. Stevens (C. C. A. Neb.) 71 F. 258, 18 C. O. A. 107. 7 Jones V. State, 25 So. 25, 120 Ala. 383 ; Muhlig v. Rebhan (Sup.) 105 N. Y. S. 110, 55 Misc. Kep. 305. See Mc- Gaughey v. State, 169 S. W. 287, 74 Tex. Cr. R. 529. Instructions beld olijectionable -within rule. On a prosecution for larceny of a bond, it was error, after charging at defendant's request that, if the taiing of the bond was not un- lawful, defendant's failure to return . the bond on demand was not suffi- cient to constitute the offense, to add that, if the taking was wrongful, the failure to return the bond on demand was simply a recurrence of the wrong, adding insult to injury. State v. Eng- lish, 62 Minn. 402, 64 N. W. 1136. Reference to people attending trial as a lobby. Instrilctions which characterize the people in attendance at a trial as a lobby, who have packed the courtroom with intent to influence the jury to decide the case without regard to evidence, are properly re- fused, as calculated to prejudice the jury. Lynch v. Bates, 139 Ind. 206, 38 N. B. 806. 71 Starling v. Selma Cotton Mills, 88 S. E. 242, 171 N. O. 222; Supreme Council of American Legion of Honor~ V. Anderson, 61 Tex. 296. 72 People V. Pool, 27 Gal. 572 ; State V. McCarter, 98 N. C. 637, 4 S. E. 553 ; Duprel V. Collins, 146 N. W. 592, 33 S. D. 365; Texas & N. O. R. Co. v. Walker, 125 S. W. 99, 58 Tex. OIv. App. 615; Peltier v. Chicago, St. P., M. & O. Ry. Co., 88 Wis. 521, 60 N. W. 250. Instrnctions held not improper within role. An instruction that the jury might consider the reasona- ble or unreasonableness of testimony given by deposition as to declarations by a person since deceased, and might also consider that the lips of declar- ant were closed by death, so that the testimony could not be contradicted. Bohen v. North American Life Ins. Co. of Chicago, 177 N. W. 706, 188 Iowa, 1349. Where the court instructs the jury that the issue is not whether the defendants' business was a cheat, but whether it was a lottery, the fact that the charge also states that the defend- ants' business was a cheat no better than highway robbery is not ground for reversal. MacDonald v. United States (C. C. A. 111.) 12 C. O. A. 339, 63 Fed. 426. Where the character of the homicide is not in issue, the only con- troversy being as to whether defend- ants committed the homicide, an in- struction reciting the theory of the state as to the circumstances, and stating that, "if this is true, this crime, in its sickening and horrible details, is without parallel in the his- tory of crime in this state," and then warning the jury not to be influenced by the Indignation the recital of the crime may have aroused, is not ground for reversal. State v. Green, 26 S. B. 234, 48 S. C. 136. There was no er- ror in instructing the jury that the offense with which defendant was charged was a very serious one, which should not escape punishment, where they were also instructed that, be- cause of the seriousness of the charge, the prisoner should not be convicted on slight evidence. Commonwealth v. Harris, 168 Pa. 619, 32 A. 92, 36 Wkly. Notes Cas. 343. 73 Lomax v. Holbine, 90 N. W. 1122, 65 Neb. 270. §384 INSTRUCTIONS TO JURIES 698 must render a verdict according to the law and the evidence, un- influenced by their sympathy, is not reversible error.'* § 384. Instructions as to reaching verdict by lot or by the law of averages Cautionary instructions as to the manner in which the jury shall reach their verdict are in the discretion of the trial cOurt.'^ It is not error to tell the jury that a quotient verdict,'^ or a ver- dict decided by lot," is illegal and improper; and, on the other hand, the refusal of the court to caution the jury against deter- mining their verdict by lot,'* or by the law of averages," will not constitute reversible error. It is improper, however, for the court to give instructions which tend to, or expressly sanction, a verdict founded on compromise or the law of averages.** Where the court undertakes to caution the jury in a criminal case not to find their verdict by lot or chance, it should admonish them that they must first ascertain the fact that the defendant i^ guilty.*^ 74 Robbins v. Magoon & Kimball Co., 159 N. W. 323, 193 Mich. 200; Citi- zens' St Ry. Co. V. Dan, 52 S. W. 177, 102 Tenn. 320. 7B Carson v. Southern Ry. Co., 46 S. E. 525, 68 S. C. 55, judgment af- firmed Southern Ry. Co. v. Carson, 24 S. Ct. 609, 194 V. S. 136, 48 L. Ed.' 907. 7 8 Sharp V. Kansas City Cable Ry. Co., 114 Mo. 94, 20 S. W. 93. 7 7 Lankster v. State (Tex. Cr. App.) 72 S. W. 388 ; Driver v. State, 38 S. W. 1020, 37 Tex. Cr. R. 160. 7 8 Benjamin v. Metropolitan St. Ry. Co., 183 Mo. 274, 34 S. W. 590. 7 9 Sherwood v. Grand Ave. Ry. Co., 132 Mo. 339, 33 S. W. 774 ; Woodman V. Town of Northwood, 36 A. 255, 67 N. H. 307. 80 Richardson v. Coleman, 131 Ind. 210, 29 N. E. 909, 31 Am. St. Rep. 429 ; Goodsell V. Seeley, 10 N. W. 44, 46 Mich. 623, 41 Am. Rep. 183; Edens V. Hannibal & St. J. R. Co., 72 Mo. 212 ; Boden v. Irwin, 92 Pa. 345; Gulf, C. & S. P. Ry. Co. V. Johnson, 90 S. W. 164, 99 Tex. 337, reversing judgment Gulf, C. & S. F. Ry. Co. v. Rogers, 82 S. W. 822, 37 Tex. Civ. App. 99. WMle a quotient verdict -will not necessarily be set aside, yet the trial court ought not to suggest to the jury, if the witnesses differ as to values, that they ascertain what the average of the estimates are first, and then afterwards decide whether such an average is fair or full value. Kan- sas City, W. & N. W. R. Co. v. Ryan, 49 Kan. 1, 30 P. 108. Instructions tending to induce quotient verdict. An instruction that, if the jury find for the plaintiff, they must not assess damages by add- ing the amounts they individually think should be awarded and divid- ing the arnouat so obtained by the number of jurors, unless they there- after agree upon such amount as a just sum under the evidence, is er- roneous, as tending to induce the jury to reach a verdict in the manner cen- sured by the Instruction. West Chi- cago St. R. Ob. V. Dougherty, 89 111. App. 362. 81 Winfrey v. State, 209 S. W. 151, 84 Tex. Cr. R. 579. 699 ARGUMENTS OF COUNSEL § 385 CHAPTER XXXI NECESSITY AND PROPRIETY OF INSTRUCTIONS WITH REFERENCE TO ARGUMENTS OF COUNSEL § 385. Influence and effect of arguments of counsel. 386. Improper arguments. § 385. Influence and effect of arguments of counsel The court cannot, in advance of the argurtients of counsel, be required to instruct the jury on the province of counsel in arguing the cause.i Counsel have a right to address the jury, such right being conferred by statute in some jurisdictions, and the court can- not properly instruct the jury to disregard the arguments of coun- sel,^ or give instructions tending to limit the influence of legitimate 1 Parrish v. Parrish, 72 P. 844, 67 Kan. 323. 2 Ala. Tucker v. State, 52 So. 464, 167 Ala. 1. 111. People V. Ambach, 93 N. B. 310. 247 111. 451. Minn. Svensson v. Lindgren, 145 N. W. 116, 124 Minn. 386, Ann. Cas. 1915B, 734. N. D. State v. Gutterman, 128 N. W. 307, 20 N. D. 432, Ann. Cas. 1912C, 816. Tex. Chapman v. State, 147 S. W. 580, 66 Tex. Cr. R. 489; Reeves v. State, 34 Tex. Cr. R. 483, 31 S. W. 382. Instructions erroneous tvithin rule. A charge that the jury are not to try the case by the arguments of counsel, who, by "the study of a lifetime, * * * learn how to dis- tort, change color and discolor facts, in order that they may use them to the advantage of their clients." Gib- son V. State, 26 Fla. 109, 7 So. 376. Instructions not erroneous urith.- in rule. An instruction that If in putting in the evidence or in argu- ment counsel has made any statement not based upon the evidence, the jury should wholly disregard such state- ment, is not objectionable for failure to distinctly say that the statements of counsel referred to were statements in reference to the facts in the case. North Chicago St. R. Co. v. Wellner, 69 N. E. 6, 206 111. ,272, affirming judgment 105 111. App. 652. Charge that neither court nor jury could sur- render judgment to control of counsel on either side, though they might be of assistance in determining the truth, that it is the right and duty of coun- sel to fairly maintain their cause, and they may emphasize the law and evidence sustaining their contentions, but the jury are. to determine the facts. State v. Price, 160 N. W. 677, 135 Minn. 159. Instruction that re- marks of counsel are not evidence, and that verdict must be founded sole- ly on evidence and laws given by court. State v. Moss, 172 P. 199, 24 N. M. 59. An instruction that the jury must try the case by what they hear from the witness stand and from the law applicable thereto, "us- ing the argument of counsel to assist you in understanding the law as ap- plicable to the evidence," is not erro- neous as leading the jury to under- stand that they must reject any im- pressions of fact made on their minds by a full discussion of the evidence by counsel. Mann v. State, 53 S. E. 324, 124 Ga. 760, 4 L. R. A. (N. S.) 934. An instruction that the verdict must be based on the evidence, and the law as given by the court, and that extraneous statements should be discarded. State v. Butts, 78 X. W. 687, 107 Iowa, 653. A charge that where court and counsel differ as to the law the jury should take and ap- §385 INSTRUCTIONS TO JURIES TOO statements and arguments of counsel,* and it is ordinarily improper for the- court to comment unfavorably upon the arguments of coun- sel.* It has been held not error to charge that as a general rule it is the fairest and best way for a jury to decide cases mainly upon the grounds taken and discussed by counsel in their argument,® and it is proper for the court to recapitulate fairly such contentions of counsel as illustrate the bearing of the evidence on the issues.® The giving of an instruction which otherwise might be im- proper is sometimes justified by the comments of counsel made in argument,' and the court may tell the jury that the statements ply the law from the court was not prejudicial error, In that it destroyed the wholesome effect of argument of counsel for plaintiff in error, where there was no actual difference as to applicable law. Williams v. State, 99 S. B. 711, 24 Ga. App. 53. Where the court in a criminal trial charged the jury that the trial was not an oratori- . cal contest between the eloquent coun- sel, and that the jurors were not sit- ting to determine which ijiade the most eloquent speech or emitted the largest volume of sound, there was no error. State v. Evans, 92 N. W. 976, 88 Minn. 262. Instructions that refer- ence had been made in the argument to the punishment that might be in- flicted, and stating that the jury had nothing to do with that, and telling the jury to disregard statements in argument not supported by evidence, and to decide the case on the evidence alone, guided by the instructions, were abstractly correct, and, if not justi- fied by the arguments were not preju- dicial to accused. State v. Wilson, 99 N. W. 1060, 124 Iowa, 264. An in- struction that the jury should not regard the remarks of counsel as evi- dence, but that the verdict must be based solely on the evidence. Mlera V. Territory, 81 P. 586, 13 N. M. 192. An Instruction that the jury must try the case on the evidence and the law as given by the court, disregard all statements of counsel on either side, unless supported by the testimony, and draw no inferences from ques- tions propounded by counsel and ex- cluded. State V. Burton, 67 P. 1097, 27 Wash. 528. Failure to except. Under statute providing that a charge. If clearly er- roneous, is ground for reversal though not objected to until appeal, if it relates to a material matter, and is calculated to prejudice defendant, a charge, not excepted to, to disregard the arguments of counsel and try the case by the law given in the charge and the testimony admitted, " and al- low nothing else to influence you in finding your verdict," is not a deprl- -^ation of the right to be heard by counsel, so as to be cause' for reversal. Roe V. State, 25 Tex. App. 33, 8 S. W. 463. s People V. Hite, 8 Utah, 461, 33 P. 254. See Moss v. Mosley, 41 So. 1012, 148 Ala. 168. Instructions not objectionable within rale. In prosecution for as- sault with intent to rape, a charge that in determining defendant's guilt or innocence the opinion of counsel in case would not control jury, and that it was not province of counsel to express any opinion as to what jury's conclusions ought to be, was not er- roneous, as curtailing the right of ar- gument of counsel for movant, in violation of a constitutional provision giving right to defend in person or by attorney. Washington v. State (Ga. App.) 103 S. E. 854. i Commonwealth v. Maddocks, 93 N. E. 258, 207 Mass. 152. 5 Melvin v. Bullard, 35 Vt. 268. 8 Clark V. Wilmington & W. R. Co., 109 N. O. 430, 14 S. E. 43, 14 L. R. A, 749. 7 Stephens v. Neilson, 154 111. App. 67; Sav?yer v. State, 35 Ind. 80; State V. West, 43 La. Ann. 1006, 10 So. 364. Instructions proper within rule. 701 ARGUMENTS OP COUNSEL 386 of counsel as to the facts in the case are not to be regarded, if siich statetnents are at variance with the record or with the jury's recol- lection of the evidence,* or that the attorneys are not supposed to be impartial, and that the jury are to take their statements both as to the law and the facts guardedly,® or that the assertion of counsel as to the opinion they entertain of the effect of the evidence, however strongly made, is not evidence,^** and the prosecuting at- torney in a criminal case may express his opinion of the guilt of the accused in such terms as to entitle the defendant to a charge that the jury must not consider the belief of the prosecuting attor- ney or his impression of the testimony .^^ Where counsel, in the course of their argument, read extracts from law books, it is proper for the court to say to the jury that such extracts are not to be accepted as law, and that the jury must receive the law only from the court.^* § 386. Improper arguments Where counsel make improper assertions, misstate propositions of law, indulge in fallacious argument, appeal to prejudice, or com- Where, on a trial for murder, defend- ant's counsel alluded in argument to a higher law, which he claimed the Bible sustained, it was not error for the court to refer to the Bible, in his charge, to justify the laws of the state on the subject of murder and manslaughter. State v. Workman, 39 S. C. 151, 17 S. E. 694. 8 Szczech V. Chicago City Ry. Co>, 157 III. App. 150 ; Meagher v. Fogar- ty, 152 N. W. 833, 129 Minn. 417; City of Tacoma v. Wetherby, 106 P. 903, 57 Wash. 295 ; Mullen v. Keinig, 72 Wis. 388, 39 N. W. 861. 9 State V. Jones, 29 S. C. 201, 7 S. E 296 10 McEae v. State, 52 Ga. 290. Instrnctions held proper ivithin rale. Where counsel for defendant stated in argument to the jury that defendant impressed him in his state- ment there, and before, that he was innocent, and that he conscientiously did not believe defendant was guilty, there was no error in charging that "what counsel said in their Argument, and what they believe," was to have no influence with the jury ; it clearly appearing that the judge referred solely to the statement by counsel as to his belief in defendant's innocence. Smith v. State, 95 Ga. 472, 20 S. E. 291. 11 People V. McGuire, 89 Mich. 64, 50 N. W. 786. Discretion of court. A request to charge that expression of belief in guilt of accused by state's attorney and filing of an information by him, should not influence jury belonged to the class of requests which ordinarily may be given to the jury or not, ac- cording as judgment of trier may de- termine. State V. Greenberg, 103 A. 897, 92 Conn. 657. 12 Chamberlain v. Masterson, 26 Ala. 371 ; Morehouse v. Eemson, 59 Conn. 392, 22 A. 427. Beading from text-books or le- gal decisions. If the prosecuting attorney, in his argument in a capital case, is permitted to read extracts from medical works, or testimony of professors of chemistry from the crim- inal reports of another state, it is the duty of the court to instruct the jury that they are not evidence. Yoe v. People. 49 111. 410. § 386 INSTRUCTIONS TO JURIES 702 ment on matters not in evidence, the court may,^* and should " on request,, give instructions for the purpose of nullifying any prej- udicial effect that might be produced by such argument, and the failure to object to such argument at the time it is made will not justify the court in subsequently refusing to give such an instruc- tion.^s The remarks of the prosecuting attorney in a criminal case may be of such a character as to entitle the defendant to a charge that they be disregarded,^* and it is proper in a criminal case to tell 13 Ala. Williams v. State, 30 So. 484, 130 Ala. 107. Cal. Kellner v. Travelers' Ins. Co., Hartford, Conn., 181 P. 61, 180 Cal. 326. Conn. State v. Gannon, 52 A. 727, 75 Conn. 206. Del. State V. Lapista (Gen. Sess.) 105 A. 676, 7 Boyce, 260. Ga. Brooks v. State, 90 S. E. 989, 19 Ga. App. 3 ; Cole v. State, 48 S. E. 156, 120 Ga. 485: Rucker v. State, 39 S. B. 902, 114 Ga. 13; Matthews v. Poythress, 4 Ga. 287. Ind. Blizzard v. Applegate, 77 Ind. 516. W. J. State V. Clark, 64 A. 984, 74 N. J. Law, 33. N. D. State V. Dodson, 136 N. W. 789, 23 N. D. 305. Or. State v. Richie, 108 P. 134', 56 Or. 169; State v. McGinnis, 108 P. 132, 56 Or. 163. Pa. Randal v. Gould, 73 A. 986, 225 Pa. 42 ; Manchester v. Reserve Tp., 4 Pa. 35. B. I. Brown v. Rhode Island Co., 102 A. 965. Tesc. Norton v. Galveston, H. & S. A. Ry. Co. (Civ. App.) 108 S. W. 1044 ; Willis V. State, 90 S. W. 1100, 49 Tex. Cr. R. 139 ; Barkman v. State, 52 S. W. 73, 41 Tex. Cr. R. 105. Instructions held proper within rule. Where, on a prosecution for murder, the court instructed: "You need not be afraid of seeing spooks either now or when you come to die, if you have been honest and decided conscientiously, as the only spook that a juror ever sees is the spook of a murdered conscience — a conscience murdered by consenting to an un- righteous verdict" — it was held that the language was not erroneous, it having been called forth by an appeal made to the jury by defendant's at- torney, and having been merely in- tended to admonish the jury not to render a verdict on sentimental grounds. State v. Malloy, 60 S. E. 228, 79 S. C. 76. 11 Ark. Brlggs v. Jones, 201 S. W. 118, 132 Ark. 455; Boone v. Holder, 112 S. W. 1081, 87 Ark. 461, 15 Ann. Cas. 735. 111. Illinois Cent. R. Co. v. Bor- ders, 61 111. App. 55. Ind. Jackson v. State, 116 Ind. 464, 19 N. B. 330 ; Conaway v. Shel- ton, 3 Ind. 334. Iowa. State v. McCartney, 65 Iowa, 522, 22 N. W. 658. Kan. State v. Francis, 68 P. 66, 64 Kan. 664. Ky. Louisville & N. R. Co. v. Smith, 84 S. W. 755, 27 Ky. Law Rep. 257. Mass. Taft v. Fiske, 140 Mass. 250. 5 N. E. 621, 54 Am. Rep. 459. Mo. Drumm-Plato Commission Co. V. Gerlach Bank. 107 Mo. App. 426, 81 S. W. 503. Tex. Seals v. State (Cr. App.) 38 S. W. 1006 ; Cooksie v. State, 26 Tex. App. 72, 9 S. W. 58. Wash. Farnandis v. Great Korth- ern Ry. Co., 84 P. 18. 41 Wash. 486. 5 L. R. A. (N. S.) 1086, 111 Am. St. Rep. 1027. 15 Todd V. Todd, 77 N. E. 680, 221 111. 410. Contra, Louisville & N. R. Co. v. Seibert's Adm'r, 55 S. W. 892. 21 Ky. Law Rep. 1603. 18 Magnuson v. State, 41 N. B. 545, 13 Ind. App. 303; State v. King, 74 S. W. 627, 174 Mo. 647 ; People v. Rose, 703 ARGUMENTS OF COUNSEL §386 the jury to disregard arguments of counsel which are not based upon the evidence.^'" The district attorney may be estopped or pre- cluded by his own stipulations or admissions from arguing along certain lines, and if he does so argue the defendant will be entitled to an instruction to counteract the effect of such argument.-'* In some jurisdictions, however, charges asked in a criminal prosecution for no other purpose than to respond to or ofiEset the arguments made before the jury by the prosecuting attorney are properly refused ; ^® the temedy being, if such arguments are im- proper, or based on matters not in evidence, to object when, the argument is uttered.^" 52 Hun, 33, 4 N. Y. S. 787 ; Young v. State, 55 S. W. 331. 41 Tex. Cr. R. 442; Goldstein v. State (Tex. Cr. App.) 35 S. W. 289. " Brewer v. State, 49 So. 336. 160 Ala. 66 ; Bowen v. State, 84 S. E. 793. 16 Ga. App. 179; Commonwealth v. Nye, 87 A. 585. 240 Pa. 359 ; Hart v. State, 121 S. W, 508, 57 Tex. Cr. R. 21; State v. Lance, 162 P. 574, 94 Wash. 484. 18 State V. Wilson, 49 So. 986, 124 La. 82. 19 Earle v. State, 56 So. 32, 1 Ala. App. 183 ; Anderson v. State, 49 So. 460, 160 Ala. 79 ; Hill v. State, 46 So. 864, 156 Ala. 3; Ward v. State, 45 So. 221, 153 Ala. 9; Bluett v. State, 44 So. 84, 151 Ala. 41; Thomas v. State, 43 So. 371, 150 Ala. 31; Brown V. State, 43 So. 194, 150 Ala. 25 ; Ne- ville V. State, 41 So. 1011, 148 Ala. 681; Whatley v. State, 39 So. 1014, 144 Ala. 68. 2 Hill V. State, 50 So. 41, 161 Ala. 67. § 387 INSTRUCTIONS TO JUEIB8 704 CHAPTER XXXII DIRECTIONS AS TO FORM OF VERDICT § 387. Form of verdict in civil cases. 388. Form of verdict in criminal cases. 389. Duty, on convicting of one offense, to acquit of another. § 387. Form of verdict in civil cases Where the trial judge instructs the jury as to how to answer a certain issue upon a given state of facts if found for the plaintiff, he should also instruct them as to how to answer such issue if they should find for the defendant.-^ Where an issue in abatement and an issue on the merits of an action are both submitted, the court should direct the jury to find separately upon them,* or that if they find for defendant on the issue in abatement they need not consider issues on the merits.* It is improper to require the jury, in the event of a finding for the plaintiff, to state the grounds of their verdict.* Usually it will not be reversible error to fail to give to the jury a form of verdict, in the absence of any request for such an instruction.^ § 388. Form of verdict in criminal cases In a criminal case it is proper to submit a form of verdict to be found in case of acquittal or conviction,® although, in the absence 1 Jarrett v. High Point Trunk & "Guilty of manslaughter" — ^is correct. Bag Co., 56 S. E. 937, 144 N. 0. 299. State v. Owens, 44 S. C. 324, 22 S. E. 2 Gardner v. Clark, 21 N. Y. 399. 244, following State v. Faile, 43 S. C. 8 Robertson v. Ephraim, 18 Tex. 52, 20 S. E. 798. Where the court in- 118. structed that if the jury found de- 4 Gulf, C. & S. F. Ry. Co. v. Har- fendant charged with assault to kill riett, 80 Tex. 73, 15 S. W. 556. guilty "of this charge" the form of 6 Triggs v. Mclntyre, 115 111. App. the verdict would be, etc., was proper 257, judgment afHrmed 74 N. E. 400, as distinguishing the form from that 215 III. 869 ; McCrary v. Missouri, K. to be used if he was found guilty of & T. Ry. Co., 74 S. W. 2, 99 Mo. App. less offense. Turner v. State, 92 S. 518. B. 975, 20 Ga. App, 165. In a trial People V. Chaves, 54 P. 596, 122 for violating the local option law, in- Cal. 134 ; Kelgans v. State, 41 So. 886, volving two counts alleging two sales 52 Fla. 57; Loyd v. State (Ga. App.) on the same day, instructions that 106 S. E. 601 ; State v. Butler, 173 N. each separate sale constitutes a sep- W. 239, 186 Iowa, 1247; Common- arate ofCense, that if accused made a wealth V. Kloss, 38 Pa. Super. Ct. 307. sale on the same day as the sale Instructions held proper. An in- charged in the first count, but at a struction that if the jury should find different time, he should be convicted defendant guilty of murder they on the second count, and that if he should write in their verdict the word, made the sales charged in both counts "Guilty;" if guilty of manslaughter, a separate verdict should be returned 705 DIRECTIONS AS TO POEM OP VERDICT 388 of any statutory requirement to that effect, it is not error to fail , to furnish such a form.'" Where a form of verdict is submitted to the jury, it should be so comprehensive as to include every kind of verdict the jury would be warranted in returning,* although it is held that it is not error for the court to fail to give a form for acquittal in the ab- sence of a request therefor.^ Where the defendant pleads not guilty and former acquittal, the jury should be instructed to ren- der a verdict on both pleas.^" Where the defense of insanity is set up, the court should charge that, if the defendant is acquitted on that ground, the jury should so state in their verdict, in order that appropriate action may be taken by the court under statutory provisions relating to the dis- position of the prisoner in that event,^^ and the court should also on each count, were not objectionable as omitting to authorize acquittal on one count and conviction on another, or acquittal on both. State v. Woods, 138 S. W. 681, 157 Mo. App. 550. Where, in a prosecution of two de- fendants for burglary, the court charged what was essential for con- viction, and that if the jury believed from the evidence beyond a reasona- ble doubt they should find defendants guilty as charged, but should acquit If they did not find each of such facts to be established, and if they so found such facts as against one defendant, but not as against the other, they should convict the former and acquit the latter, and if they found defend- ants, or either of them, guilty, they should assess their or his punishment at confinement for not less than 2 nor more than 12 years, and, if they con- victed both, they might assess the same or a different punishment as to each, it was held that-the charge was sufficient to enable the jury to prop- erly formulate their verdict if they should convict either, neither, or both of the defendants. Ragsdale v. State, 134 S. W. 234, 61 Tex. Or. R. 145. ^ Territory v. McFarlane, 7 N. M. 421, 37 Pac. 1111. 8 People V. Doras, 125 N. E. 2, 290 111. 188; Cronin v. State (Ind.) 128 N. E. 606 ; State v. Miller, 157 N. W. 131, 175 Iowa, 210 ; Commonwealth v. Mandela, 48 Pa. Super. Ct. 56 ; Gates iNST.TO Jtjeies — 45 V. State, 103 S. W. 859, 51 Tex. Or. E. 449. Form for attempt to commit crime. Where whatever attempt to commit the offense there was on the part of defendant culminated in a complete crime, the court did not err in refusing to submit a form of ver- dict authorizing conviction for an at- tempt. State V. Aker, 103 P. 420, 54 Wash. 342, 18 Ann. Cas. 972. AlternatiT-e form in case of ac- quittal. A charge, in a murder trial, that if the jury found accused guilty they would assess his punish- ment at years, and if they found him not guilty they would sim- ply say so in their verdict, is not ob- jectionable as giving no alternative form of a verdict in case of acquittal, and thus leaving the jury without op- tion to acquit. Beard v. State, 53 S. W. 348, 41 Tex. Cr. R. 173. " » Clemens v. State, 37 So. 647, 48 Fla. 9; Green v. State, 24 So. 537, 40 Fla. 474 ; Long v. State, 95 Ind. 481. 10 State V. Gutke, 139 P. 346, 25 Idaho, 737. 11 Thomson v. State, 83 So. 291, 78 Fla. 400; Scott v. State, 60 So. 355, 64 Fla. 490; State v. Crowe, 102 P. 579, 39 Mont. 174, 18 Ann. Cas. 643. Form em.bodyiiig finding that there was reasonable donbt of sanity. The Wisconsin statute pro- viding that if the jury shall find on a special issue of insanity that ac- § 388 INSTRUCTIONS TO JURIES 706 provide, on request, a form of verdict of not guilty, independent of the question of insanity.^* Instructions submitting forms of verdict should speak of the necessity that any verdict returned must be based upon the belief of the jury from the evidenc^,^* although an instruction submitting a form of verdict to be used in case the jury find the defendant guilty is not erroneous, as tending to mislead the jury into the belief that they are directed to convict the defendant, where*other instructions require his guilt to be established beyond a reasonable doubt." Where the evidence shows that the defendant is guilty of. the highest degree of the offense charged, if guilty at all, it is not error to refuse to submit a form of verdict for a lower degree.'^^ It will ordinarily be improper to submit a form of verdict des- ignating the particular prison in which the accused shall be incar- cerated in case of conviction." As has already been indicated, the general rule is that, if the de- fendant in a criminal case desires that a particular form of ver- dict be submitted to the jury, he should request an instruction em- bodying such form." § 389. Duty, on convicting of one offense, to acquit of another An instruction on included offenses should inform the jury that, if they should find the defendant guilty of some minor degree of the offense charged they should expressly declare him to be not cused was Insane, or that there Is a form to the effect that there was a reasonable doubt of his sanity at the reasonable doubt of defendant's sani- time of the commission of the alleged ty at the time of the commission of offense, they shall also find him not the offense. Steward v. State, 102 N. guilty of such offense for that rea- W. 1079, 124 Wis. 623, 4 Ann. Cas. son, only requires that the question of 389. insanity or reasonable doubt of san- 12 Territory v. Kennedy, 110 P. 854, ity be submitted to the jury in some 15 N. M. 556. form, and does not require submission is State v. Clifford, 52 S. B. 981, 59 of a form of verdict on such issue to W. Va. 1, the effect that there was reasonable 1* State v. Davis, 92 S. W. 484, 194 doubt of defendant's sanity at the Mo. 485, 4 L. R. A. (N. S.) 1023, 5 time of the commission of the alleged , Ann. Cas. 1000. offense. Steward v. State, 102 N. W. is People v. Hagenow, 86 N. E. 870, 1079, 124 Wis. 628, 4 Ann. Cas. 889. 286 111. 514;, State v. Clough, 79 P. Where, on an issue of accused's in- 117, 70 Kan. 510. sanity, the jury was fully instructed i<> People v. Stein, 137 P. 271, 23 on the question of burden of proof Cal. App. 108. and reasonable doubt, and three prop- i' ria. Kelly v. State, 33 So. 235, er forins of verdict were submitted, 44 Fla. 441. one on behalf of the state and two on IH. People v. Foster, 123 N. E. behalf of defendant, it was not error 534, 288 111. 371 ; Montag v. People, for the court to refuse to submit a 141 111. 75, 30 N. E. 337 ; Spies v. Peo- 707 DIRECTIONS AS TO FORM OP VERDICT § 389 guilty of the higher degree, but only of the lower, and the omis- sion of such an instruction, when followed by a general verdict of guilty, is ground for reversal.^* So where, under statutory provi- sion, the jury are authorized to return a verdict that the defendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same, the court, in charging under such statute, should tell the jury that they cannot legally convict of an attempt, without finding that the defendant is not guilty of the oflfeflse laid against him in the indictment.'^® pie, 122 111. 1, 12 N. E. 865, 17 N. B. S. O. State v. Hendrix, 68 S. B. 898, 3 Am. St. Rep. 320 ; Dacey v. 129, 86 S. O. 64. People, 116 111. 555, 6 N. E. 165. is Kilkelly v. State. 43 Wis. 604. Ind. Long v. State, 95 Ind. 481; i» Marley v. State, 33 A. 208, 58 N. Hodge V. State, 85 Ind. 561. J. Law, 207. INSTRUCTIONS TO JURIES 708 CHAPTER XXXIII FORMAL MATTERS CONNECTED WITH GIVING OF INSTRUCTIONS A. FOEM AND ABEANGEMENT OF INSTRUCTIONS IN GeNBBAL § 390. Preliminary statement. 391. Logical arrangement. 392. Matters which may be included in single instruction. 393. Referejnce to other instructions. 394. Submissions of matters conjunctively or disjunctively. B. Language, Mannee, and Tone of Instetjctions 395. Definiteness and simplicity of language. 396. Latitude allowed to court in tone or manner of expressing its ideas. 397. Inadvertent errors or omissions. 398. Use of illustrations. 399. Use by court of own language or that of another. 400. Interlineations. 401. Underscoring and capitalizing. 402. Addressing jurors individually. C. Setting Out Pleadings and Peopeiett or Peactice of Rbpkeeing JuET to Pleadings 1. Reference to Pleadings in- Owil Cases 403. Setting out pleadings. 404. Reference to pleadings for issuesl 405. Reference for other purposes than determination of issues. 2. Reference to Indictment or Information 406. Reference for elements of offense charged. D. Reading, Quoting, oe Citing Statutes 407. Necessity, propriety, and method of presenting statutes to jury. 408. Statutes containing irrelevant provisions. ^ 409. Using exact language of statute. 410. Reference to statutes. E. Reading, Quoting, oe Oiiino Judicial Decisions oe Text-Books 411. Propriety of instructions quoting from judicial decisions or text-books. 412. Quoting entire opinion or extracts therefrom. 413. Citing authorities. P. Repetition of Instructions 414. Necessity and propriety of repetition. 415. Limitations of rule against repetition. 416. Effect of repetition which misleads or gives undue prominence to cer- tain matters. G. Argumentative Instructions 417. General rule. 418. Application of rule in criminal cases. 419. Statement of contentions of parties or of undisputed facts. 709 FORMAL MATTERS § 420. Repetition as constituting argument. 421. Effect of argumentative instructions as ground for reversal. H. OONFtrSEOD OB MISLEADING INSTRUCTIONS 422. General rule. 423. Specific applications of rule. 424. Limitations of rule. 425. Misstatements of evidence. 426. Comments by court on the justice or validity of rules of law stated by it. I. Inconsistent ob Contbadictoey Instkuctions 427. Rule that such instructions are erroneous. 428. Specific applications of rule; 429. ' Submitting opposing theories of case. 430. Effect of such instructions as ground for reversal. J. Singling Out oe Giving Undue Peominbnce to Paeticulab Facts OB Mattebs 431. General rule. 432. Applications of rule. , 433. Singling out testimony of particular witnesses. 434. Limitations of rule. 435. Effect of repetition. 436. Duty to avoid distinguishing certain matters by arbitrary or mechani- cal devices. K. Time for Giving Insteuctions 437. Limitation of time by statute or rule of court. 438. Mandatory character of such regulations. L. Length and Numbee of Insteuctions 439. Rule against multiplying instructions. 440. Effect of length or brevity of instructions. M. Necessity of Written Instructions 1. Rule in A'bsence of Statutory Regulation 441. Instructions may be oral. 442. Right or duty of party desiring to except to instructions. 2. Rule under Statutes 443. In general. 444. Scope of such provisions. 445. Modifications and explanations. 446. Limitations of statutory rule. 447. Waiver of benefits of rule. 448. Manner and time of preferring requests for written instructions. N. Mattebs Beabing on Requisites of Weitten Insteuctions 449. SufBciency of reduction of instructions to writing. 450. Numbering instructions. 451. Signing and sealing. 452. Filing instructions. O. Presence of Parties and Right to Inspect Instructions 453. Presence of parties or their counsel during charge. 454. Right to inspect instructions. § 390 INSTRUCTIONS TO JURIES 710 A. Form and Arrangement of Instructions in Genbrai, § 390. Preliminary statement The court is not required, prior to charging as to the law of the case, to make a preliminary statement of the issues raised by the pleadings, where the issues are sufficiently pointed out in the course of the charge.^ ^391. Logical arrangement So long as all the instructions proper and needful in a case are ^iven, and so long as they embody correct statements of the prop- ositions of law involved and cannot mislead the jury, it is im- material in what precise form the charge is made, or that it is lacking in orderly or logical arrangement.* § 392. Matters which may be included in single instruction The discussion of what matters must be included in a single instruction is deferred to a subsequent chapter.* Two or more correct propositions of law may be stated in the ■same instruction, if the jury will not be confused thereby.* The respective theories of the parties need not be presented in separate instructions,^ and where there is nothing special or, individual to distinguish the defenses of two or more persons joined as defend- ants, it is within the discretion of the trial court to give particular instructions as to each defendant, or to so modify one set of in- structions as to make them applicable to all the defendants.® An instruction, however, is objectionable which involves wholly unrelated subjects,' and may properly be refused.* It is the duty 1 Galveston, H. & S. A. Ry. Co. v. s Post, §§ 533-539. Hitzfelder, 66 S. W. 707, 24 Tex. Civ. 4 Gemmill v. Brown, 56 N. E. 691, App. .318. • 25 Ind. App. 6; Louisville & N. R. 2 Kan. Atchison, T. & S. F. R. Co. Co. v. Veach, 46 S. W. 493, 20 Ky. V. Calvert, 52 Kan. 547, 34 P. 976. Law Rep. 403 ; Abernathy v. Em- Minn. Guerin v. Hunt, 6 Minn. poria Mfg. Co., 95 S. E. 418, 122 Va. 375 (Gil. 260). 406. Neb. Gigley v. National FideUty b Morris v. Territory, 99 P. 760, 1 & Casualty Co., 144 N. W. 810, 94 okl. Or. 617, rehearing denied 101 Neb. 813, 50 L. R. A. (N. S.) 1040. p. m, i okl. Cr. 617; Toone v. J. N. H. Piper v. Boston & M. R. R., p. oweiU Const. Co., 121 P. 10, 40 72 A. 1024, 75 N. H. 228 ; Walcott v. Utah 265 Keith, 22 N. H. 196. „ J.^ ,, ' , Vt. Holbrook V. Hiyde, 1 Vt. 286. .„ t^''^?°°'^'^ "■ ^°™ ^^^^- ^^^^' Wash. Hutching v. School Dist. ^° ^"- ^PP- ^^'^■ No. 81 of Spokane County, 195 P. ' Holbrook v. Seagrave, 116 N. E. 3020. 889, 228 Mass. 26. W. Va. MeClintic v. Ocheltree, 4 s Beam Motor Car Co. v. Loewer, W. Va. 249. 102 A. 908, 131 Md. 552. 711 FOIJMAL MATTERS § 394 of the court to separate and definitely state the issues of fact made by the pleadings, and to give such instructions as to each issue as the nature of the case requires.* § 393. Reference to other instructions There is no necessity for qualifying each instruction by express reterence to the others," but the court in one instruction may reter to another for certain matters," and it is not necessary that the instructions so referred to should be repeated,i» although they should be designated with reasonable particularity.^* An instruction referring to an instruction given, by the court in a former case to the jurors on the same panel and restating such instruction is not objectionable." § 394. Submissions of matters conjunctively or disjunctively Where a party is entitled to a verdict if any one of several facts has been established, it is error to present all the facts in the conjunctive, thus, in effect, telling the jury to return a verdict for said party only in case the combination of facts has been es- 9 Jones V. People's Bank Co., lib N. E. 34, 95 Ohio St. 253. Illnstration of necessity of sep- arately statins issues of fact. In an action by a pedestrian injured by an automobile, contention of plaintiff being that collision took place on crossing, and contention of defend- ant being that it occurred at the in- tersection, the court, although the pedestrian had the right of way at both places* oinder a city ordinance, should have instructed separately as to the reciprocal duties and rights of pedestrians and vehicles at street crossings .and intersections thus ena- bling the jury to apply the instruc- tions to the case as they found the facts to be as to the exact location of the collision. Schwalen v. W. P. Fuller & Co., 182 P. 592, 107 Wash. 476, 10 A. U R. 296. 10 iScott-Force Hat Co. v. Sturgeon, 127 JIo. 392, 30 S. W. 183. 11 People V. I/aures, 124 N. E. 585, 289 111. 490; German Fire Ins. Co. V. Grunert, 112 111. 68, 1 N. E. 113; Carter v. Howard, 11 Ky. Law Rep. (abstract) 443 ; State v. Solon, 153 S. W. 1023, 247 Mo. 672. Instrnotions proper within rule. An instruction that if the jury failed to find a verdict according to law as declared in Instruction No. 2, but find that defendant feloniously, premedi- tatedly, on purpose, and with malice aforethought, with a deadly weapon, shot and killed deceased, he was guil- ty of murder in the second degree, was not bad, as depending on another instruction. State v. Haines, 61 S. W. 621. 160 Mo. 555. An instruction which informs the jury that if, under the evidence and instructions, they believe the defendant liable, then they shall assess the damages, is hot er- roneous, because of its reference to the other instructions. Chicago, M. & St. P. R. Co. V. Kendall, 49 111. App. 398. An instruction that if the jury, "from the evidence, and under the instructions of the court," find the issue for plaintiff, etc., is not error. Norton v. Volzke, 54 III. App. 545. 12 O'Leary v. German American Ins. Co. of New York, 69 N. W. 686, 100 Iowa, 390. 18 Harvey v. State, 73 So. 200, 15 Ala. App. 311; McBeth-Bvans Glass Co. V. Brunson (Ind. App.) 122 N. E. -439 ; Carrington v. Graves, 89 A. 237, 321 Md., 567; Drumm-Flatp Commis- sion Co. V. Gerlack Bank, 92 Mo. App. 326. i*Di Maio v. Yolen Bottling Works, 107 A. 497, 93 Conn. 597. §395 INSTRUCTIONS TO JURIES 712 tablished,^^ and where a defendant pleads several defenses, an instruction grouping them together conjunctively, and requiring the jury to believe that there is evidence sufficient to support all of them before they can find for the defendant, is error." It is held, however, that, in the absence of a request to submit several matters of defense disjunctively, their submission conjunctively, so that the jury is seemingly required to believe all of them to have been established in order to find for the defendant, while not good practice, is not reversible error," where it does not appear that the jury were mislqd.^* B. Language;, Manner, and Tone O'E Instructions § 395. Definiteness and simplicity of language The terms and expressions used in an instruction to the jury should not be obscure, vague, or indefinite,^* or susceptible of a double meaning,^* but, on the other hand, should be technically accurate^* and couched in as simple, plain, everyday language as it is possible to use.''^ Simplicity of language may be said to be one of the hall-marks of a good instruction.^* The model instruc- ts Langhan v. City of Louisville, 216 S. W. 1082, 186 Ky. 438; Tuepker V. Sovereign Camp. W. O. W. (Mo. App.) 226 kS. W. 1002; Crow v. Citi- zens' Ry. Co,, 78 S. W. 13, 34 Tex. Civ. App. 8: Bell v. Beazley. 45 S. W. 401, 18 Tex. Civ. App. 639. le Jones v. People's Bank Co., 116 N. E. 34, 95 Ohio St. 253 ; Kersher v. Lotimer (Tex. Civ. App.) 64 S. W. 287. 17 Oar V. Davis (Tex. Civ. App.) 135 S. W. 710; Texas & P. Ry. Co. V. Patterson, 102 S. W. 138, 46 Tex. Civ. App. 292; Texas Cent. R. Co. v. Waldie (Tex. Civ. App.) 101 S. "W. 517. Facts pleaded conjunctively. Where the facts constituting the al- leged contributory negligence are pleaded conjunctively, no affirmative error vi^ill arise in submitting the is- sues in that form. Ft. Worth & R. G. Ry. Co. V. Keith (Tex. Com. App.) 208 S. W. 891, affirming judgment (Civ. App.) 163 S. W. 142. 18 Gulf, C. & S. F. Ry. Co. v. Hill, 69 S. W. 136, 95 Tex. 629. 1 9 Riley v. Fletcher, 64 So. 85, 185 Ala. 570; Chicago City Ry. Co. v. Sandusky, 99 111. App. 164, affirmed 64 N. E. 990, 198 111. 400; Parkers- , burg Industrial Co. v. Schultz, 43 W. Va. 470, 27 S. B. 255. Charge beld too general. In an action for the price of a livery stable, where the defense was sale of good- will also, and breach of the contract, a charge, requested by defendants, that, "if there was a sale of good- will, plaintiff would be responsible for breach of the contract," without specifying how, or in what amount , is too general, and was properly re- fused. Chambers v. Walker, 80 Ga. 642, 6 S. E. 165. 2 Puller V. Stevens (Ala.) 39 So. 623; Fitts v. Southern Pac. Co., 86 P. 710, 149 Cal. 310, 117 Am. St. Rep. 130. 21 Illinois Steel Co. v. McFadden, 63 N. E. 671. 196 111. 344, 89 Am. St. Rep. 319, affirming judgment 98 111. App. 296; Fowlie v. Cruse, 157 P. 958, 52 Mont. 222. 22 Kein v. Gilmore & P. R. Co., 131 P. 656, 23 Idaho, 511 ; Aikin v. Weck- erly, 19 Mich. 482. 2 3 Hegberg v. St. Louis & S. F. R. Co., 147 S. W. 192, 164 Mo. App. 514 ; Morris v. Morris, 28 Mo. 114. "^IS FORMAL MATTERS § 396 tion is a simple, impartial, clear, concise statement of the law ap- plicable to the evidence in the case on trial,** and an instruction which states the law correctly, but which uses language such as is not apt to be comprehended by the average juror, is errone- ous,*® and should be refused.*® Pursuant to the above rule the court should avoid the use of technical or Latin terms,*'' and employ instead words which are generally used and concerning the meaning of which the jury can have no doubt.** It is not error, however, for the court to make use of technical phrases, if the jury are not misled thereby,** nor is it error to use Latin words, or words of Latin derivation which have become a part of the English language-*" § 396. Latitude alloiwed to court in tone or manner of express- ing its ideas A certain latitude as to the form and expression of a charge is necessarily left to the trial court, so long as the determination of the issues of fact is left to the jury,*^ and the tone or manner of a charge,** the vehemence or eloquence of certain passages there- in,** or the fact that the court does not use language best suited to convey the ideas sought to be expressed, or that certain words or phrases are inaccurate, or that unnecessary words are em- ployed,** will not be cause for a reversal of the judgment of the 2* Gottlieb V. Commonweal th, 101 S. so Thlessen v. City of Belle Plaine, E. 872, 126 Va. 807. 81 Iowa, 118, 46 N. W. 854; In re 25 Maryland Casualty Co. v. Pinch Convey's Will, 52 Iowa, 197, 2 N. W. (C. C. A. Minn.) 147 F. 388, 77 C. C. 1084; Owens, Lane & Dyer Mach. A. 566, 8 Xj. R. a. ('N. S.) 308; Har- Co. v. Pierce, 5 Mo. App. 575; vey V. Miles, 16 111. App. 533; Wat- Schwartz v. State, 83 S. W. 195. 47 kins V. Wallace, 19 Mich. 57. Tex. Or. R. 213, 11 Ann. Oas. 620. 2 6 Russell V. Oregon R. & Nav. Co., si Mawich v. Elsey, 10 N. W. 57, 102 P. 619, 54 Or. 128. 47 Mich. 10; Flick v. EUis^Hall Co., 2 7 Indianapolis Traction & Termi- 165 N. W. 135, 138 Minn. 364. nal Co. V. Thornbnrg (Ind. App.) 125 82 Bishop v. Journal Newspaper Co., N. E. 57; State v. Helm, 61 N. W. 168 Mass. 327, 47 N. E. 119; Fath 248, 92 Iowa, 540; Fletcher v. Mil- v. Thompson, 58 N. J. Law, 180, 33 burn Mfg. Co., 35 Mo. App. 321. See A. 391; Briffitt v. State, 58 Wis. 39, Owens, Lane & Dyer Mach. Co. v. 16 N. W. 39, 46 Am. Rep. 621. Pierce, 5 Mo. App. 576. ss Page v. Town of Sumpter, 53 Presumption of fraud. An in- Wis. 652, 11 N. W. 60. struction that fraud will not be pre- 34 U. S. (Sup.) Rogers v. Marshal, sumed from slight circumstances, but 1 Wall. 644, 17 L. Ed. 714 ; (C. C. A. the proof must be clear and conclu- Pa.) Mowles v. Lorimer, 212 F. 155, sive, is erroneous, as being stated in 129 C. 0. A. 11. too technical language. Watkins v. Ark. Fourche River Valley & I. Wallace, 19 Mich. 57. T. Ry. Co. v. Tippett, 142 S. W. 520, 2 8 Dunn V. Land (Tex. Civ. App.) 101 Ark. 376. 193 S. W. 698. Ga. City of Rome v. Ford, 79 S. 2 0Gano v. Samuel, 14 Ohio, 593. E. 243, 13 Ga. App. 386; James v. 396 INSTRUCTIONS TO JURIES 7U trial court, if the instructions as a whole are correct, if their meaning is clear, and if the jury have not been misled by the Hamil, 78 S. E. 721, 140 Ga. 168; Orr V. Planters' Phosphate & Fertili- zer Co., 68 S. E. 779, 8 Ga. App. 59 ; Coweta County v. Central of Georgia Ky. Co., 60 S. E. 1018, 4 Ga. App. 94. 111. Coulter V. Illinois Cent. R. Co., 106 N. E. 258, 264 111. 414, affirm- ing judgment 184 111. App. 208. Ind. Southern Ry. Co. v. Hazle- wood, 90 N. E. 18, 45 Ind. App. 478, denying rehearing 88 N. E. 636, 45 Ind. App. 478. Iowa. First Nat. Bank of Marcus V. Wise, 151 N. W. 495, 172 Iowa, 24. Ky. St. Louis, I. M. & S. R. Co. V. McWhirter, 140 S. W. 672, 145 Ky. 427. Md. Weant v. Southern Trust & Deposit Co., 77 A. 289, 112 Md. 463. Micb. Davidson v. Kolb, 55 N. W. 373, 95 Mich. 469. Mo. Sparks v. Harvey (App.) 214 S. W. 249; Millirons v. Missouri & K. I. Ry. Co., 162 S. W. 1069, 176 Mo. App. 39; Stubhlefleld v. Smith, 129 S. W. 1027, 146 Mo. App. 316; Torreyson v. United Rys. Co. of St. Louis, 129 S. W. 409, 144 Mo. App. 626; Sherer v. Rischert, 23 Mo. App. 275. Neb. Stull V. Stull, 96 N. "W. 196, 1 Neb. (Unof.) 380, 389; Thayer Coun- ty Bank v. Huddleson, 95 N. W. 471, 1 Neb. (Unof.) 261 ; Langdon v. Winter- steen, 78 N. W. 501, 58 Neb. 278. N. J. • Redhing v. Central R. Co., 54 A. 431, 68 N. J. Law, 641. N. Y. Raynor v. Timerson, 51 Barb. 517. S. D. M. E. Smith & Co. v. Kim- ble, 162 N. W. 162, 38 S. D. 511. Tex. Mutual Life Ins. Co. of New York V. Hodnette (Civ. App.) 147 S. W. 615; St. Louis Southwestern Ry. Co. of Texas v. Wilbanks (Civ. App.) 113 S W. 318; Texas & P. Ry. Co. V. John,son, 106 S. W. 773, 48 Tex. Civ. App. 135 ; Houston & T. C. R. Co. v. Anglin, 99 S. W. 897, 45 Tex. Civ. App. 41. TItali. Musgrave v. Studebaker Bros. Co. of Utah, 160 P. 117, 48 Utah, 410. Vt. Coolidge v. Taylor, 80 A. 1038, 85 Vt. 39. Wash. Peterson v. Arland, 141 P. 63, 79 Wash. 679. W. Va. Webb v. Ritter, 54 S. E. 484, 60 W. Va. 193. Omission of a prefix. A charge that the jury are not bound to accept the opinions of doctors, but may give such opinions the weight to which they deem them entitled, or altogeth- er disregard them in so far as they may deem them "reasonable," being correct in every respect, except the obvious omission of the prefix "un" before the word "reasonable" is not fatally erroneous. Day v. Emery- Bird-Thayer Dry Goods Co., 89 S. W. 903, 114 Mo. App. 479. Inappropriate use of ^rords. That the court, in reference to an al- teration in a written contract which would render the agreement invalid, if inserted without the knowledge or consent of one of the parties to the contract, used the word "forgery," was immaterial, though, technically speaking, such criminal act could not be committed by such alteration. Swindells v. Dupont, 92 N. W. 468, 88 Minn. 9. An Instruction that the cre- ation of an agency carries with it the power to do all those things which are necessary, proper, and usual to be done in order to effectuate the pur- pose of the agency, and embraces all the "approximate" means necessary to accomplish the desired ends, is not erroneous, because of the use of the word "approximate" instead of "ap- propriate." Riverview Land Co. v. Dance, 35 S. E. 720, 98 Va. 239. Un- der a statute making it a misdemean- or to leave open a hole or shaft and imposing penalty of double value of stock injured or killed by falling into the shaft, there was no error in an instruction referring to a hole as an "excavation," when it was nine feet long, six feet wide, and six feet deep, and clearly came within the statute, although an excavation may or may not be prohibited by statute. Jones- boro, L. C. & E. R. Co. v. Kirksey, 204 ri5 FORMAL MATTERS 395 manner of expression of the court. It is not improper to use the masculine gender in referring to a person of the female sex.^® S. W. 208, 135 Ark. 617. In an action for injury to a pedestrian wlio fell into a coalhole, error cannot be predi- cated on the use by the court in an instruction of the word "slipped," in- stead of the word "tilted," as used in the petition, where the evidence on the nature of the injury was clear, and no prejudice could have resulted. Xoung Men's Christian Ass'n v. Jasse (Tex. Civ. App.) 183 S. W. 867. Use of "proof" and "evidence" interchangeably'. "Proof" in a strictly accurate and technical sense is the result or effect of evidence, while "evidence" is the medium or means by which a fact is proved or disproved, but the words "proof" and "evidence" may be used interchange- ably and synonymously in court's charge especially where attention of court is not specially called to the real difCerence in meaning (citing Words and Phrases, Evidence ; Proof). Walker v. State, 212 S. W. 319, 138 Ark. 517. Use of "approximately" instead of "proximately." An instruction on contributory negligence, in an ac- tion for death at an interurban rail- way crossing, was not defective in the use of the word "approximately," instead of "proximately" ; the two words being so closely allied in mean- ing that the use of the former, in a clause requiring such negligence to have "approximately" contributed to the injury, could not have misled the jury. Brooks v. Muncie & ]?. Trac- tion Co., 95 N. ^. 1006, 176 Ind. 298. Where, in an action for injuries to an employs, the court defined proximate cause and used in its instructions the word "proximate" several times, the use of the word "approximately" for "proximately" in a charge relating to proximate cause was not erroneous. Choctaw, O. & T. Ry. Co. v. McLaugh- lin, 96 S. W. 1091, 43 Tex. Civ. App. 523. Use of "cnlvert" instead of "drain." In an action against a railroad company- for injuries to plaintiff's adjoining property by a change in the grade of a street inter- fering with a natural drain, an in- struction that in the construction of defendant's approaches to a viaduct defendant was bound to construct cul- verts through the embankment was not objectionable in the use of the word culvert; the openings having been referred to in other instructions as drains or channels. Shrader v. Cleveland, C, C. & St. L. Ry. Co., 89 N. B. 997, 242 111. 227, 26 L. R. A. (N. S.) 226, affirming judgment 147 111, App. 252. Use of "defendant" instead of "plaintiff." A charge exonerating defendant from liability, if "defend- ant" was guilty of contributory negli- gence by failing to exercise ordinary [care] in his shipment, is not rendered! misleading by the use of the word "defendant" instead of "plaintiff,"' and the omission of the word "care." Galveston, H. & S. A. Ry. Co. v. Word' (Tex. Civ. App.) 124 S. W. 478. "Disaster" instead of "acci- dent." In an action for injuries tO' a child, caused by defendant's negli- gently leaving a live wire in a pu'blic place unguarded, an instruction stat- ing that defendant was bound to ex- ercise the highest skill in the mainte- nance of the entire plant, consistent with the proper conduct of the busi- ness according to the best known methods of the state of its art, prior to the disaster, was not erroneous for using the word "disaster" instead of "accident," or some other similar term. Colorado Springs Electric Go. V. Soper, 88 P. 161, 38 Colo. 126. Use of word "result" instead of "cause." Where the court, in an ac- tion for injuries to a servant, in re- sponse to a suggestion charged: "I did not tell you, if there was negli- gence on the part of the plaintiff, it had to be the 'proximate result' of the injuries to bar his recovery. The same rule applies to both sides. It 3 5 Hightower v. State, 80 S. E. 684, 14 Ga. App. 246; Marek v. State, 94 S. W. 469, 49 Tex. Cr. R. 428; Ma- gruder v. State, 84 S. W, 587, 47 Tex, Cr. R. 465. §397 INSTRUCTIONS TO JURIES 716 § 397. Inadvertent errors or omissions As a general rule, error is not properly predicable upon the in- advertent use of a wrong word in an instruction, or the uninten- tional omission therefrom of a word or phrase which it is apparent would have been corrected if attention had been called thereto,^* and where it is clear that the jury has not been misled, and a cor- rect result has been reached,*' or where to hold, in view of the ■ charge as a whole, that the jury could have been misled by a slip one side was guilty of negligence, it must proximately result in injury, or he would not be entitled to recover. I mean, if plaintiff was guilty of negli- gence, to bar recovery, it must be the proximate result of his injury," it was held that the use of the word "result," instead of "cause," did not render the instruction erroneous, since, if the injury must be the proxi- mate result of the negligence, then the negligence must have proximately caused the injury. Sloss-Shetiield Steel & Iron Co. v. Stewart, 55 So. 785, 172 Ala. 516. "Sue" instead of "recover." An instruction in an action for enticing an,employ6 to break his contract with plaintiff that plaintiff cannot "sue" on any other contract except the one al- leged in the complaint is not mislead- ing in the use of the word "sue," in- stead of the word "recover." Burgess V. Tucker, 77 S. E. 1016, 94 S. C. 309. Use of word "just." Instruction that plaintiff, in action for personal injury, has burden of proving by pre- ponderance of evidence that his claim is just, and that he Is entitled to re- cover, was erroneous, as a just claim is not always a legal claim that may be compensated for in damages, and as "just" may apply in nearly all its senses to either ethics or law, de- noting something which is normally right and fair, and sometimes that which is right and fair according to positive law. Lake Hancock & C. R. Co. V. Stinson, 81 So. 512, 77 Fla. 333. Use of "etc." The use of the ab- breviation "etc." in a charge on dam- ages Is not to be commended, as the court should specify what things he means. Dallas Consol. Electric St. Ry. Co. V. Chambers, 118 S. W. 851, 55 Tex. Or. R. 331. Use of the singular instead of the plural number. An instruction that the burden of proof is on the plaintiff to prove his case by a pre- ponderance of evidence, and if he has failed to make such proof the jury should find the issue for the "defend- ant," is not misleading, though there were two defendants. Peirce v. Shol- tey, 190 111. App. 341. The use of the word "plaintiff" in an instruction where there are two plaintiffs to the action is not misleading, where a jury of a.verage intelligence would under- stand that the court meant the par- ties suing. Citizens' Gas & Oil Min. Co. V. Whipple, 69 N. E. 557, 32 Ind. App. 203. Failure to use ivord "felonious- ly." An instruction authorizing con- viction of the accused if he committed certain acts was not erroneous for failure to use the word "feloniously." State v. Miller, 89 S. W. 377, 190 Mo. 449. An instruction that if the kill- ing was not done in self-defense, but was done in sudden heat or passion, etc., the jury should find defendant guilty of voluntary manslaughter, was not bad for failing to use the word "feloniously." Cook v. Com- monwealth, 72 S. W. 283, 24 Ky. Law Rep. 1731. Instruction as to what should be found to warrant conviction of robbery may in place of the word "feloniously" use other words, the equivalent thereof. State v. Johnson, 58 P. 667, 19 Wash. 410. so Gilroy v. Loftus (Sup.) 48 N. T. S. 532, 22 Misc. Rep. 105; Holt v. State, 100 S. W. 156, 51 Tex. Cr. R. 15; State v. Carter, 15 Wash. 121, 45 P. 745. 3' Ga. AUen v. State, 88 S. E. 100, 18 Ga. App. 1; Solomon v. State, 58 S. E. 381, 2 Ga. App. 92 ; City of At- 717 FOEMAL MATTERS §397 of the tongue or pen would impute such want 'of ordinary capacity to the jury as to make them unfit for service,** slight verbal inac- curacies or clerical errors will be disregarded. The above rule has been applied to the omission of the phrase "from the evidence," ** to the use of the word "testimony" instead lanta v. Champe, 66 Ga. 659; Carter V. Buchanan, 9 Ga. 539. lU. Nichols V. Mercer, 44 111. 250 ; Ind. Coppage V. Gregg, 1 Ind. App. 112, 27 N. E. 570; Rollins v. State, 62 Ind. 46. Iowa. Clifton V. Granger, 86 Iowa, 573, 53 N. W. 316. Kan. State V. Miller, 35 Kan. 328, 10 P. 865. Ky. Day v. Commonwealtli, 96 S. W. 510, 29 Ky. Law Rep. 816. Miss. Palmer v. State, 18 So. 269 ; Oliver v. State, 39 Miss. 526. Mont. Xeill V. Jordan, 15 Mont. 47. 38 P. 223. iNeb. Carroll v. State, 73 N. W. 939, 53 Neb. 431 ; Stein v. Vannice, 44 Neb. 132, 62 N. W. 464. Or. State V. Porter, 49 P. 964, 32 Or. 185. Tex. Hill V. State (Cr. App.) 77 S. W. 808; Hutcherson v. State (Cr. App.) 35 S. W. 376; Callicoatte v. State (Cr. App.) 22 S. W. 1041; Ar- rington v. State (Cr. App.) 20 S. W. 927; Rand v. C. R. Johns & Sons (App.) 15 S. W. 200. Wis. Schultz V. Culbertson, 49 Wis. 122, 4 N. W. 1070. Inadvertent nse of "not." Where, In an action on an insurance policy, it was uncontroverted that cer- tain articles claimed as lost, in the proof of loss, were in fact saved, it was held that inadvertent error In instructing that, though the jury may "not" believe that articles named as lost were actually saved, that fact alone would not constitute a defense, is not ground for reversal. Bokien v. State Ins. Co. of Oregon, 14 Wash. 39, 44 P. 110. Making mere fact of injury standard of liability. In an action for personal injuries, the fact that the judge in one part of his charge inad- vertently makes injury to plaintifE, and not negligence, the standard of liability, is not ground for reversal when he gives the true guide repeat- edly, before, in immediate connection with, and after the sentence com- plained of, rehearsing the evidence of defendant in denial of negligence, and closes his charge by telling the jury that they must first consider whether there was any negligence on the part of defendant. McCloskey v. Bell's Gap R. R., 156 Pa. 254, 27 A. 246. Direction of verdict. Where, in the course of a charge which coyers three printed pages the court states and reiterates that the jury are the sole judges of the fa;cts and states what facts must be found before a verdict can be given for plaintiff, but afterwards, at plaintiff's request, gives a charge that "your verdict should be for the plaintiff in this ac- tion for such damages as you shall assess," it will be presumed that this language was inadvertently used, and that the jury did not understaind it as a direction to find for plaintiff. Klimple v. Boelter, 44 Minn. 172, 46 N. W. 306. 3 8 Ala. Stewart v. State, 34 So. 818, 137 Ala. 33. Conn. Smith v. King, 62 Conn. 515, 26 A. 1059. Ga, Newman v. State, 87 S. E. 398, 144 Ga. 494; Huffman v. State, 95 Ga. 469, 20 S. E. 216. Ind. Vanvalkenberg v. Vanvalken- berg, 90 Ind. 433. Iowa. State v. Christopher, 149 N. W. 40, 167 Iowa, 109. Mo. State v. Taylor, 168 S. W. 1191, 261 Mo. 210. Tex. McWhirter v. State, 146 S. W. 189, 66 Tex. Cr. R. 188; Spencer v. State, 34 Tex. Cr. R. 65, 29 S. W. 159 ; Hill V. State, 11 Tex. App. 456. Vt. State V. Bolton, 102 A. 489, 92 Vt. 157. 3 9Milligan v. Chicago, B. & Q. R. Co., 79 Mo. App. 393 ; Rogers v. War- ren, 75 Mo. App. 271. §397 INSTEUCTIONS TO JUEIBS 718 of "evidence," or vice versa,** to the employment of the word "tes- timony" in place of the word "facts," *i to the use of the word "defendant" for the word "witness,"*** to the use of the word "plaintiff" instead of "defendant," or vice versa,** to the use of "and" in place of "or," or vice versa,** to the use of "may" instead of "must," or vice versa,*® and to the use of "yes," instead of *o Cal. People V. Hubert, 51 P. 329, 119 Cal. 216, 63 Am. St. Rej). 72 ; Mann v. Higgins, 83 Cal. 66, 23 P. 206. 111. Fitzgerald v. Benner, 76 N. B. 709, 219 lU. 485, affirming jugdment 120 111. App. 447 ; Jones v. Gregory, 48 111. App. 228 ; Welch v. Miller, 32 111. App. 110. S., C. Dial V. Gardner, 89 S. B. 396, 104 S. C. 456. Tex. Black v. Brooks, 129 S. W. 177, 60 Tex. Civ. App. 533; Goodwin V. Mortsen, 128 S. W. 1182, 60 Tex. Civ. App. 287; Houston & T. C. R. Co. V. Craig, 92 S. W. 1033, 42 Tex. Civ. App. 486. Wash. Jones v.' City of Seattle, 98 P. 743, 51 Wash. 245; Noyes v. Pugin, 2 Wash. 653, 27 P. 548. 41 Clark V. State, 63 S. E, 606, 5 Ga. App. 605. 42 Turner v. Commonwealth, 215 S. W. 76, 185 Ky. 382. 43 Ga. Southern Bell Telegraph & Telephone Co. v. Jordan, 87 Ga. 69, 13 S. B. 202. 111. McKenzie v. Remington, 79 111. 388. Ind. Wilson V. Trafalgar & B. C. Gravel Road Co., 93 Ind. 287. Iowa. Reupke v. D. H. Stuhr & Son Grain Co., 102 N. W. 509, 126 Iowa, 632; Shipley v. Reasoner, 87 Iowa, 555, 54 N. W. 470. Mo. Suttie v. Aloe, 39 Mo. App. 38 if. C. Pittman v. Weeks, 43 S. B. 582, 132 N. C. 81. Tex. Central Texas & N. W. Ry. Co. v. Bush, 12 Tex. Civ. App. 291, 34 S. W. 133 ; Galveston, H. & S. A. Ry. Co. v. Porfert, 72 Tex. 344, 10 S. W. 207. See, also, post, § 424, note 51. Use of "plaintiff" instead o£ name of infant for ivliom plaintiff sues. In an action by a father in- dividually, and as next friend for in- juries to his infant son, an instruction to find for plaintiff, if the jury found certain facts, unless they found "plaintiff" guilty of contributory neg- ligence, being evidently a clerical mistake in the use of the word "plain- tiff," instead of the name of the in- fant, was not ground for reversal. Pecos & N. T. Ry. Co. v. Trower, 130 S. W. 588, 61 Tex. Civ. App. 53. Use of "defendant" instead of "garnishee." Where the issues in garnishment proceedings are only those between plaintiff and the gar- nishee, an instruction calling the gar- nishee "defendant" is harmless error. Citizens' State Bank v. Council Bluffs Fuel Co., 89 Iowa, 618, 57 N. W. 444. 44 O'Connor v. Langdon, 3 Idaho (Hash.) 61, 26 P. 659 ; Citizens' Gas- light & Heating Co. v. O'Brien, 118 111. 174, 8 N. E. 310 ; State v. Minne- apolis & St. L. Ry. Co., 88 Iowa, 689, 56 N. W. 400; Wachovia Loan & Trust Co. V. Forbes, 27 S. E. 43, 120 N. C. 355; O'Neal v. State, 100 S. W. 919, 51 Tex. Cr. R. 100. Instructions held not objection- able within rule. In an action for injuries to a servant, where the com- plaint alleged negligence in not fur- nishing plaintiff with safe machinery and a safe place to work, in that a belt which broke and injured him was old, unsafe, defective and worn out, thereby causing it to break easily, an instruction that the burden was on plaintiff to prove that the place at which he was put to work was not safe and suitable, "and" that the belt was old, vmsafe, and defective, was not objectionable for using the con- junctive instead of the disjunctive; there being in effect only one specifi- cation of negligence. Dover v. Lock- hart Mills, 68 S. B. 525, 86 S. C. 229. 45 Wilson V. State, 160 S. W. 83, 71 Tex. Cr. R. 399; State v. Wilson, 9 Wash. 16j 36 P. 967. Use of "ought" instead of "must." On a trial for murder, a charge that the jury "ought" to con- 719 FORMAL MATTERS 397 "no."*® The possibility that the jury were misled by the use of the indefinite article "a" instead of the definite article "the," or vice versa, before the phrase "proximate cause," may be so re- mote, in view of other instructions given, that the reviewing court will decline to reverse for this reason.*' • An inaccurate statement of the pleadings will not constitute ground for reversal, where the mistake is as to an immaterial matter,** or the court has plainly stated to the jury the questions at issue.** Objections to instructions having for their basis mis- takes in punctuation are treated with scant courtesy by the courts,®* and the omission of a comma will not be erroneous, if the jury are not misled.®^ Where, however, an inadvertent error in the use of words, names, or dates, or in the omission of words or phrases, is calcu- lated to mislead the jury, it will be cause for reversal.®^ Thus an inadvertent error in the use of the word "not" in an instruction, sider the circumstances of the case from the standpoint of defendant as it appeared at the time of the killing is not objectionable because the court did not use the word "must," since any ordinary jury would understand that the charge was mandatory. Jackson v. State, 32 Tex. Cr. R. 192, 22 S. W. 831. 48 In re Spencer, 96 Cal. 448, 31 P. 453. 47 Freiburg v. Israel (Cal. App.) 187 P. 130; Squier v. Davis Standard Bread Co. (Cal.) 185 P. 391. 48 Kimble v. Seal, 92 Ind. 276. 48 Young V. Clegg, 93 Ind. 371. 5 Jarvis v. FUnt & P. M. R. Co., 87 N. W. 136, 128 Mich. 61; Ft. Worth & D. C. Ry. Co. V. Poteet, 115 S. W. 883, 53 Tex. Cr. R. 44. 61 Pagels V. Meyer, 61 N. E. 1111, 193 111. 172, reversing judgment 88 111. App. 169 ; Painter v. People, 147 111. 444, 35 N. E. 64; E. I. Du Pont de Nemours & Co. v. Snead's Adm'r, 97 S. E. 812, 124 Va. 177. 5 2 Ga. Wright v. State, 101 S. E. 591, 24 Ga. App. 543; Wellborn v. Rogers, 24 Ga. 558. III. HofCman v. Boomer, 40 111. App. 231; Illinois Cent. B, Co. v. Zang, 10 111. App. (10 Bradw.) 594. Micli. Detroit Blectpic Light & Power Co. v. Applebaum," 94 N. W. 12, 132 Mich. 555. Tex. Pickett v. State, 12 Tex. App. 86. Improper use of adjective. The use of the word "greatly," In instruc- tions, by calling attention to the in- jury by the repeated expressions "greatly injured," "greatly wounded," and "suffered greatly," is error, ei- ther to mislead the jury to under- stand there could be no recovery un- less the injury was great, or to give them the impression that the trial judge considered the injury great. Louisville & N. R. Co. v. Lynch, 126 S. W. 362, 137 Ky. 696. Inadvertment inclusion of ele- ment of damage. In an action by a minor servant against a master for personal injuries resulting from dan- gerous machinery, the inclusion by the judge through oversight of dam- ages sustained and loss of earning power during plaintiff's minority was reversible error. Clark Mile-End Spool Cotton Co. V. Shaffery, 33 A. 284, 58 N. J. Law, 229. Omission of word. An instruc- tion that, if the jury believe from the evidence that any one has testified "willfully false" to a material fact, they may disregard "the entire evi- dence," is erroneous, since it is not clear whether the "entire evidence of the witness" or the "entire evidence in the case" is meantJ City of Hiawatha V. Warren, 55 P. 484, 8 Kan. App. 209. § 398 INSTRUCTIONS TO JURIES - 720 or in its omission therefrom, may be of such a character that the jury would not be likely to detect the error, in which case, unless the jury is clearly shown not to have been misled, the error will work a reversal. ^^ So a clerical error in the use of the word "plaintiff" for "defendant," or 'vice versa, may constitute revers- ible error,^ and an inadvertence of the court in attributing the testimony of a witness to another witness may constitute ground for reversal, if such error, because of a difference in the age or character of the witnesses, may affect the credibility of the testi- mony with the jury,®® and where the trial court, as the result of a clerical error in a criminal case, tells the jury to acquit if the crime charged is proven, and to convict if it is not proven, it can- not be presumed that the jury were not misled, and such an error will work a reversal.®* § 398. Use of illustrations Within proper limits the use of illustrations by the court is not erroneous, and may sometimes be helpful.®' § 399. Use by court of own language or that of another The court may charge the law of the case in its own language,®* but it is the safer practice for the trial court, in stating a rule of law, to follow the expression of the same rule by the appellate court.®* It should be borne in mind in this connection, however, as has elsewhere been stated,** that appellate courts, in discussing facts, frequently make use of language which, though embodying sound principles of law, is not intended to be adjusted to the re- quirements and proprieties of a charge to be given to juries.®^ It is not improper for the court to adopt as its main charge a charge prepared by the counsel of one of the parties,*** and in an 5 3 Carle ton MIn. & Mill. Co. v. bs Joyner v. Atlantic Coast Line R. Ryan, 68 P. 279, 29 Colo. 401; Soutli- Co., 74 S. E. 825, 91 S. C. 104. western Telegraph & Telephone Co. v. so Anderson v. Horllck's Malted Newman (Tex. Civ. App.) 34 S. W. Mut oo., 119 N. W. 342, 137 Wis. 569 ; 661. Grotjan v. Rice, 102 N. W. 551, 124 5 4 Mathews v. Granger, 71 111. App. wis. 253. 467 ; Alter v. Holllday, 9 Ky. Law ^o Post, § 411. ""^/c^olUnrf Sey, 124 Pa. 203, 16 '\^:'^'-]f, ^\ ^^'frn ^'"'y^'^^l A. 765, 23 Wkly. Notes Cas. 264. hartley (Ga App) 103 S E. 259, 5 8 Cummings v. State, 69 N. W. 756, |°"t\%™ C°"°o ^q«?°- I;,^ PT'w 50 Neb 274 S. B. 110, 125 Ga. 368 ; Atlanta & W. 57 Neel V.' Powell, 61 S. E. 729, 130 P- \^^- ^- Hudson, 51 S. E. 29, 123 Ga. 756; Draper v. Cotting, 120 N. ^^- ^"^• E. 365, 231 Mass. 51; Wellington v, 6 2 Kansas^Oity, M. & O. Ry. Co. of ■ City of Cambridge, 107 N. E. 976, 220 Texas v. Harral (Tex. Civ. App.) 199 Mass. 312. S. W. 659. •21 FORMAL MATTERS 8 403 action bksed on a statute instructions following its language are generally good.^* § 400. Interlineations Where a statute forbidding interlineations and erasures in in- structions is directory merely, an interlineation will not be pre- sumed to be improper.®* § 401. Underscoring and capitalizing It is not improper for the court to underscore words which are usually italicized in legal treatises,*^ but the practice of capital- izing a part of the iAstruction should be avoided.** § 402. Addressing jurors individually The court is not required to address its instructions to each one of the jury as individuals ; <"■ it being the better practice to ad- dress instructions to the jury as a whole,** C. Setting out P]:,eadings and Propriety of Practice of Refer- ring Jury to Pleadings 1. Rule in Civil Cases § 403. Setting out pleadings It is not error to embrace the pleadings in the instructions^ although it is nof good practice to set out the pleadings at length in an instruction,'"' and it is advisable to avoid setting out a com- plaint which contains much surplusage or many repetitions, and which, in stating the facts constituting the cause of action, greatly exaggerates them.'^ It is sufficient if the instructions contain the substance of the pleadings,''* and they should not be incum- bered by the recital of immaterial pleadings.''* 83 Beaver Creek School Land Ditch es Shepard v. United States (C. C. Co. V. Blling, 148 P. 273, 27 Colo. App. A. Utah) 160 F. 584, 87 C. C. A. 486, 252 ; Mertens v. Southern Coal & Min- certiorari denied 29 S. Ct. 682, 212 U. ing Co., 85 N. E. 743, 235 111. 540, af- S. 571, 53 L. Ed. 655. firming judgment Mertins v. Same, os Vandalia Coal Co. v. Moore, 121 140 111. App. 190; Reisch v. People, N. E. 685, 69 Ind. App. 311. 82 N. E. 321, 229 111. 574. to Bvansville Gas.& Electric Light e* Daly v. Bernstein, 6 N. M. 380, Co. v. Robertson, 100 N. E. 689, 55 28 P. 764. , Ind. App. 853 ; Spieler v. Lincoln 6 5 Philpot V. Lucas, 70 N. W. 625, Traction Co., 171 N. W. 896, 103 Neb. 101 Iowa, 478; Crockett v. Miller, 96 339; Home Savings Bank v. Stewart, N. W. 491, 2 Neb. (Unof.) 292. 110 N. W. 947, 78 Neb. 624. 8s Blwood V. Chicago City Ry. Co., 'i City of Indianapolis v. Moss 90 111. App. 397 ; Week v. Reno Trac- (Ind. App.) 128 N. E. 857. tion Co., 149 P. 65, 38 Nev. 285. 72 Mosslander v. Armstrong, 134 N. 8 7 State v. Armstrong, 79 P. 490, 37 W. 922, 90 Neb. 774. Wash. 51; State v. Williams, 13 7 a Lang v. Omaha & C. B. St. R. Wash. 335, 43 Pac. 15. Co., 148 N. W. 964, 96 Neb. 740. INST.TO JUEIES — 46 §404 INSTRUCTIONS TO JURIES 722 § 404. Reference tq pleadings for issues As one court has said, much confusion arises from the practice of allowing the jury to take the pleadings into the jury room, or of reading them aloud in the court room; juries not being learned in legal verbiage and rarely centering their attention on a partic- ular point or paragraph involved.'* The general rule, therefore, is that the court should evolve from the pleadings a plain state- ment of the issues of fact and submit it to the jury,'" and that a presentation of the issues merely by copying the pleadings in the instructions,™ or by simply referring the jury to the pleadings to determine for themselves what the issues are,'*" is erroneous, or at '* Branthover v. Monarch Elevator Co., 156 N. W. 927, 33 N. D. 454. 7 5 Fla. Seaboard Air Line Ry. Co. v: Kay, 74 So. 523, 73 Fla. 554. Ga. McLean v. Clark, 47 Ga. 24. 111. Dickson V. George B. Swift Co., 87 N. E, 59, 238 111. 62, affirming 142 111. App. 655; Chicago City Ry. Co. V. Mauger, 105 111. App. 579. Ky. Taylor v. Armstrong, 5 Ky. Law Rep. (abstract) 251. Mo. Sinnamon v. Moore, 142 S. W. 494, 161 Mo. App. 168; Jaffi v. Missouri Pac. By. Co., 103 S. W. 1026, 205 Mo. 450. Neb. Plath V. Bninken, 167 N. W. 567, 102 Neb. 467. Ohio. Russell V. Weiler, 28 Ohio Clr. Ct B. 176. Tex. Panhandle & S. F. By. Co. v. Morrison (Civ. App.) 191 S. W. 138. Where pleadings contain mat- ters of evidence, rather than ulti- mate facts, the court sufficiently states the issues by stating tersely the ulti- mate facts pleaded. Murphey v. Vir- gin, 47 Neb. 692, 66 N. W. 652. 76 Iowa. Black v. Miller, 138 N. W. 535, 158 Iowa, 293 ; Shebek v. Na- tional Cracker Co., 94 N. W. 930, 120 Iowa, 414; Erb.v. German-American Ins. Co. of New York, 83 N. W. 1053, 112 Iowa, 357; West v. Averlll Gro- cery Co., 80 N. W. 556, 109 Iowa, 488 ; Hankins v. Hankins, 79 N. W. 278; Robinson & Co. v. Berkey, 69 N. W. 434, 100 Iowa, 136, 62 Am. St. Eep. 549. Neb. Parkins v. Missouri Pac. Ry. Co., 93 N. W. 197, 4 Neb. (Unof.) 1. Tenn. Nashville, ■ C. & St. L. By. v. Anderson, 185 S. W. 677, 134 Tenn. 666, L. R. A. 1918C, 1115, Ann. Gas. 1917D, 902. Utah. Davis v. Heiner, 181 P. 587, 54 Utah, 428. Suhmitting to the jury in detail all the allegations disclosed in the pleadings, whether or not they are finally for its determination, is un- necessary and improper. Ft. Lyon Canal Co. v. Bennett, 156 P. 604, 61 Colo. 111. In Indiana it is held that, although the court may in its -charge read the pleadings to the jury (Clouser v. Ruckman, 104 Ind. 588, 4 N. E. 202), it is the better practice for the court to advise or instruct the jury as to the issues in the case (Blair-Baker Horse Co. v. First Nat. Bank, 72 N. E. 1027, 164 Ind. 77; Angola Ry. & Power Co. v. Butz, 98 N. B. 818, 52 Ind. App. 420; Woodruff v. Hensley, 60 N. E. 312, 26 Ind. App. 592). 7 7 Ala. Louisville & N. B. Co. v. Laney, 69 So. 993, 14 Ala. App. 287; Pennsylvania Fire Ins. Co. v. Draper, 65 So.' 923, 187 Ala. 103 ; Birmingham Ry., Light & Power Co. v. Adkins, 62 So. 367, 8 Ala. App. 555, judgment re- versed Ex parte Birmingham Ry., Light & Power Co., 64 So. 70, 184 Ala. 580 ; Birmingham Ry., Light & Power Co.. V. Pox, 56 So. 1013, 174 Ala. 657 ; Lewy Art Co. v. Agricola, 53 So. 145, 169 Ala. 60. 111. Bernler v. Illinois Cent. R. Co., 129 N. E. 747, 296 111. 464; Schlauder V. Chicago & Southern Traction Co., 97 N. E. 233, 253 111. 154, reversing judgment 160 111. App. 309; Pitts- burgh, C, C. & St. L. R. Co. V. Kin- nare, 67 N. E. 826, 203 111. 388, af- 723 FORMAL MATTERS §404 least not good practice, unless the pleadings contain a clear state- ment of the issues intelligently presenting the very matters to be firming judgment 105 111. App. 566; Latham v. Cleveland, C, C. & St. h. R. Co., 179 111. App. 324. Iowa. Trott v. Chicago, R. I. & P. R. Co., 86 N. W. 33, 115 Iowa, 80, re- hearing denied 87 N. W. 722, 115 Iowa, 80; Lindsay v. City of Des Moines, 68 Iowa, 368, 27 N. W. 283; Bryan v. Chicago, R. I. & P. R. Co., 63 Iowa, 464, 19 N. W. 295; Porter V. Knight, 63 Iowa, 365, 19 N. W. 282 ; Fitzgerald v. MeCarty, 55 Iowa, 702, 8 N. W. 646. Mo. Williams v. Tucker (App.) 224 S. W. 21 ; Byrne v. News Corp., 190 S. W. 933, 195 Mo. App. 265; Boomshaft v. Klauber, 190 S. W. 616, 196 Mo. App. 222 ; State ex rel. and to Use of Macke v. Randolph (App.) 186 S. W. 590; Smith v. Means, 155 S. W. 454, 170 Mo. App. 158; Birch Tree State Bank v. Dowler, 145 S. W. 843, 163 Mo. App. 65.' Neb. Larson v. Chicago & N. W. R. Co., 131 N. W. 201, 89 Neb. 247; Murray v. Burd, 91 N. W. 278, 65 Neb. 427. Ohio. Baltimore & O. R. Co. v. Lockwood, 74 N. B. 1071, 72 Ohio, 586. Tenn. Bast Tennessee, V. & G. Ry. Co. V. Lee, 90 Tenn. 570, 18 S. W. 268. Tex. Adams & Washam v. South- ern Traction Co. (Civ. App.) 188 S. W. 275; Missouri, K. & T. Ry. Co. of Texas v. Graves, 122 S. W. 458, 57 Tex. Civ. App. 395; Texas & N. O. OR'. Co. V. Mortensep, 66 S. W. 99, 27 Tex. Civ. App. 106'; San Antonio & A. P. Ry. Co. v. De Ham (Civ. App.) 54 S. W. 395. Va. Jones' Adm'r v. City of Rich- mond, 88 S. E. 82, 118 Va. 612. See Galveston, H. & S. A. Ry. Co. V. Parvin, 64 S. W. 1008, 27 Tex. Civ. App. 60. Refusal of instructions. It is not improper to refuse an instruction which refers the jury to the declara- tion for the issues. Rosinski.v. Bur- ton, 163 111. App. 162 ; Shewbridge v. Chicago City By. Co., 188 111. App. 454. Matters not violating rule. It is not error, in itself, to give the issues to the jury by stating to them the sub- stance of the pleadings in the order in which they were filed. City of Ft. Madison v. Moore, 80 N. W. 527, 109 Iowa, 476. In an action for rent, where defendants couhterclaimed for trespass of plaintiff's animals, an in- struction, relating to the form of the verdict, directing the jury to make a finding on both the petition and coun- terclaim, and that the amount conced- ed due plaintifC should be deducted from the amount, if any, found on the counterclaim, and that whether defendants were entitled to recover , on their counterclaim was a matter to be determined from the evidence, was not objectionable as referring the ju- ry to the pleadings for the issues. Barnard v. Weaver (Mo. App.) 224 S. W. i52. Instructions lield not objection- able as authorizing or requiring ' the jury to determine the mate- rial allegations of the complaint. An instruction authorizing the jury to render a verdict for plaintiffs if" the jury believe, from a preponder- ance of the evidence, that plaintiffs had made out their case "as laid in the declaration." Fraternal Army of America v. Evans, 74 N. E. 689, 215- 111. 629, affirming judgment 114 111. App. 578. Where, in an action for injuries to a passenger, the jury were- not informed as to the material alle- gations of the declaration, an instruc- tion that, if the evidence was equally- balanced on any point material to- plaintiff's case, or if the evidence pre- ponderated in defendant's favor on any point material to plaintiff's, case, the verdict must be for defendant, and that plaintiff was required to prove the truth of the material alle- gations of his declaration, or some count thereof, by a preponderance of the evidence, and if he failed so to do- the jury should find defendant not guilty, was not misleading to plain- tiff's prejudice, as requiring the jury as a matter of law to ascertain whatr were the material allegations in the- declaration. Judgment 116 111. App.. §404 INSTRUCTIONS TO JURIES 724 tried,''* and while a reference of the jury to the pleadings for the issues will not necessarily, or perhaps not ordinarily, be cause for a reversal,"* since the rule is that, before a party will be al- lowed to disturb the judgment of the lower court for such a cause, he must show prejudice resulting therefrom,*' such reference will constitute ground for reversal, if the jury are misled thereby, or the pleadings are so involved as to render it doubtful whether the jury can understand the issues raised.*"- Where defenses are plead- ed, but abandoned, it is bad practice to read the answer to the jury, or to refer specifically thereto in the instructions; the bet- ter practice being to merely instruct the jury what the sole and only defenses are.*^ However, where the parties consent there- to, and the pleadings are clear and concise, and state the exact issues, it is not error to refer the jury to the pleadings for the is- sues in the case,*^ and where the court fully states the contentions 507, affirmed. Harvey v. Chicago & A. Ry. Co., 77 N. B. 569, 221 111. 242, affirming judgment 123 111. App. 442. 7 8Canfield v. Chicago, R. I. & P. Ry. Co., 121 N. W. 186, 142 Iowa, 658; Swanson v. Allen, 79 N. W. 132, 108 Iowa, 419. 7 8 m. Thorne v. Southern lUinois Ry. & Power Co., 206 111. App. 372. Ind. Ohio & M. Ry. Co. v. Smith, 5 Ind. App. 560, 32 N. E. 809. Iowa. Sutton v. Greiner, 159 N. W. 268, 177 Iowa, 532; McDonald v. Bice, 84 N. W. 985, 113 Iowa, 44. Neb. Forrest v. Koehn, 156 N. W. 1046, 99 Neb. 441. Tex. Houston Electric Co. v. Nel- son, 77 S. W. 978, 34 Tex. Civ. App. 72. Utali. Smith v. Columbus Buggy Co., 123 P. 580, 40 Utah, 580. 80 Savino v. Griffin Wheel Co., 136 N. W. 876, 118 Minn. 290; Tobler v. Union Stockyards Co., 123 N. W. 461, 85 Neb. 413. 81 Kansas City, Ft. S. & M. R. Co. V. Dalton, 72 P. 209, 66 Kan. 799; Stevens v. Maxwell, 70 P. 873, 65 Kan. 835; Bering Mfg. Co. v. Feme- lat, 79 S. W. 869, 35 Tex. Civ. App. 36. Instructions improper within rule. Where no part of the charge contained a statement of the issues, and the statement in the petition was such as to Involve complicated ques- tions as to the defendant's liability, a paragraph of the charge, directing the .jury to the petition for the "par- ticular statement of fact upon' which the plaintiff must recover, if he is entitled to recover at all," was prej- udicial error. Keatley v. Illinois Cent. Ry. Co., 94 Iowa, 685, 63 N. W. 560. Beading the separate answer of one defendant to the jury as a part of • the instructions is error, where it contains allegations which may in- fluence the jury as to the liability of another defendant. Nupen v. Pearce (C. C. A. N. D.) 235 F. 497, 149 C. C. A. 43. 82 iDlliott Supply Co. V. Green, 160 N. W. 1002, 35 N. D. 641. 8 3 Iowa. Stephens v. Brill, 140 N. W. 809, 159 Iowa, 620; McDivitt v. Des Moines City Ry. Co., 118 N. W. 459, 141 Iowa, 689 ; Dean v. Carpen- ter, 111 N. W. 915, 134 Iowa, 275; Trumble v. Happy, 87 N. W. 678, 114 Iowa, 624 ; Graybill v. Chicago, M. & St. P. Ry. Co., 84 N. W. 946, 112 Iowa, 738; Crawford v. Nolan, 72 Iowa, 673, 34 N. W. 754. While it is the duty of a judge to state the contentions of the lit- igants, an instruction that the jury will find the contentions of the par- ties in the petition and answer, which are so clearly set out and so frerd v. Roberts, 165 N. W. 892, 102 Neb. 49 ; Shumway v. State, 117 N. W. 407, 82 Neb. 152, judgment affirmed on rehearing 119 N. W. 517, 82 Neb. 166. N. J. Chiapparine v. Public Serv- ice Ry. Co., 103 A. 180. N. Y. People v. Scanlon, 117 N. T. S. 57, 132 App. Div. 528. Ohio. Toledo Consol. St. Ry. Co. V. Mammet, 6 O. O. D. 244, 13 Ohio Cir. Ct. R. 591. S. C. State V. Brown, 101 S. E. 847, 113 S. C. 513; State v. BlacU- stone, 101 S. E. .845, 113 S. C. 528; Gossett V. Western Union Telegraph Co., 79 S. E. 309, 95 S. C. 397. ' S. D. State v. FuUerton Lumber Co., 152 N. W. 708, 35 S. D. 410. Tex. Walker v. State, 181 S. W. 191, 78 Tex. Cr. R. 237 ; International & G. N. Ry. Co. V. Bandy (Civ. App.) 163 S. W. 341 ; Hobbs v. State, 7 Tex. App. 117. 10 Sommer v. Carbon Hill Coal Co. (C. O. A. Wash.) 107 F. 230, 46 C. C. A. 255 ; Keel v. Seaboard Air Line Ry., 95 S. E. 64, 108 S. C. 390. 11 Louisiana & A. Ry. Co. v. Wood- son, 192 S. W. 174, 127 Ark. 323 ; St. Louis, I. M. & S. Ry. Co. v. Elrod, 173 S. W. 836, 116 Ark. 514 ; Maffi v. Ste- phens, 108 S. W. 1008, 49 Tex. Civ. App. 354. 12 Kansas City, Ft. S. & M. Ry. Co. V. Becker, 39 S. W. 358, 63 Arlc. 477. 13 People V. Bernard, 130 P.. 1063, 21 Cal. App. 56 ; Keefer v. Amicone, 100 P. 594, 45 Colo. 110 ; Price v. Clo- ver Lead Coal Mining Co., 188 111. App. 27 ; Eaton v. Marion County Coal Co., 173 111. App. 444, judgment affirmed 101 N. E. 58, 257 111. 567. 14 Ariz. Lee V. State, 145 P. 244, 16 Ariz. 291, Ann. Cas. 1917B, 131. Ga. Pope V. Pope, 95 Ga. 87, 22 S. E. 245. III.' Daly V. New Staunton Coal §409 INSTETJCTIONS TO JURIES 73a where the statute quoted covers matters not involved in the case on trial, the court should point out what part is applicable.'^^ § 409. Using exact language of statute It is ordinarily not error, in an action based on a statute, to give an instruction in the exact language of the statute,^* although a construction has been given to the statute quoted not entirely in accordance with the popular acceptation of the terms employed, if it is thereafter fully explained in conformity to such construction," and usually, where an instruction is given with reference to the provisions of a particular statute, it is better that it contain the lan- guage of the statute.^* On the other hand, instructions which cor- rectly set forth a rule of law embodied in a statute are not errone- ous, because they do not use its exact language.^* § 410. Reference to statutes An instruction merely referring the jury to a statute by its title or chapter and section numbers is properly refused,^* and such a ref- erence while not necessarily reversible error,*"^ may be a ground for reversal.** Co., 203 111. App. 164, judgment af- firmed 117 N. E. 413, 280 111. 175. Mo. Hollenbeck v. Missouri Pac. Ry. Co., 34 S. W. 494. Neb. McMartin v. State, 145 N. W. 695, 95 Neb. 292 ; Henkel v. Boudreau, 130 N. W. 753, 88 Neb. 784. 15 Central of Georgia Ry. Co. v. De Loach, 89 S. E. 433, 18 Ga. App. 362. 18 Ark. Kansas City Southern Ry. Co. V. Whitley, 213 S. W. 369, 139 Ark. 255. Fla. Florida Ry. Co. v. Dorsey, 52 So. 963, 59 Fla. 260. 111. Greene v. L. Fish Furniture Co., Ill N. B. 725, 272 111. 148; Mt. Olive & S. Coal Co. v. Rademacher, 60 N. E. 888, 190 111. 538, affirming judgment 93 111. App. 442 ; Warren V. Jackson, 204 111. App. 576 ; McCor- mick V. Decker, 204 111. App. 554; Halladay v. Murphysboro Supply Co., 203 111. App. 142; Watson v. Kam- meier, 203 111. App. 31 ; Adams v. Jurich, 160 111. App. 522; Wells v. Baltimore & O. S. W. R. Co., 153 111. App. 23; Helfernan t. Bail, 109 111. App. 231 ; Consolidated Coal Co. v. Dombroski, 106 111. App. 641. Mo. Kippenbrock v. Wabash R. Co., 194 S. W. 50, 270 Mo. 479. 1' Western Union Telegraph Co. v. Harris, 64 S. E. 1123, 6 Ga. App. 2©0. 18 Atlantic Coast Line R. Co. v. Can- ty, 77 S. E. 659, 12 Ga. App. 411; McDonald v. Jacobs, 10 Mo. 160 ; Ja- cobs V. McDonald, 8 Mo. 565 ; Hoag v. Washington-Oregon Corporation, 147 P. 756, 75 Or. 588, modifyingi judg- ment on rehearing 144 P. 574, 75 Or. 588. 19 Hines v. Green, 101 S. E. 757, 24 Ga. App. 575 ; Alf riend v. Fox, 52 S. E. 925, 124 Ga. 563 ; Devine v. L. Fish Furniture Co., 189 111. App. 136; Haines v. M. S. Welker & Co., 165 N. W. 1027, 182 Iowa, 431; Lindell v. Stone, 94 A. 963, 77 N. H. 582. 2 Wallis V. Heard, 86 S. E. 391, 16 Ga. App. 802. 21 Lane v. Chicago, R. I. & P. Ry. Co., 35 Mo. App. 567. 2 2 Butler V. Gill, 127 P. 439, 34 Okl. 814. 731 FORMAL MATTERS §411 B. Reading, Quoting, or Citing Judiciai, Decisions or Text- Books § 411. Propriety of instructions quoting from judicial decisions or text-books Although it is not improper for the court to refuse to embody the language of an elementary writer in a charge to the jury,** the court may read the law to the jury from a text-book,** and it is not error in a proper case for the trial court to read from the re- ports, as a part of its charge on the law, the opinion of the appel- late court on a former appeal in the same case,*^ or the decisions of the courts in other cases,** or to quote from the opinion of the highest court of another state,*' provided the quotations from such judicial reports correctly state the law.** However, such a practice is one not to be encouraged.** A mere 23 People V. Wayman, 128 N. Y. 585, 27 N. E. 1070. 2* United States v. Neverson, 1 Mackey (D. C.) 152; Lett v. Horner, 5 Blaekf . (Ind.) 296 ; MaglU v. South- ern Ry. Oo., 78 S. E. 1033, 95 S. C. 306. 2B Richmond & D. R. Go. v. His- song, 97 Ala. 187, 13 So. 209; Rig- gins' Bx'rs V. Brown, 12 Ga. 271 ; Pow- er V. HarlOw, 23 N. W. 606, 57 Mich. 107; Panama R. Co. v; Johnson, 63 Hun, 629, 17 N. Y. S. 777. 2 8 D. C. Johnson v. Baltimore & P. R. Co., 6 Mackey, 232. Ga. Wright v. State, 18 Ga. 383. Ind. Bronnenburg v. Charman, 80 Ind. 475. Mass. Rothwell T. New York, N. H. & H. R. Co., 112 N. B. 231, 223 Mass. 550; Commonwealth v. Dow, 105 N. E. 995, 217 Mass. 473 ; Post v. Leland, 69 N. E. 361, 184 Mass. 601. Micli. People v. Bowkus, 109 Mich. 360, 6i7 N. W. 319 ; People v. Niles, 7 N. W. 192, 44 Mich. 606. N. Y. People V. BreeH, 74 N. E. 483, 181 N. Y. 493; People v. Min- naugh, 131 N. Y. 563, 29 N. E. 750; McManus v. Woolverton (Com. PI.) 19 N. Y. S. 545, judgment aflSrmed 138 N. Y. 648, 34 N. E. 513. N. C. State V. Cameron, 81 S. B. 748, 166 N. C. 379. Pa. Henry v. Klopfer, 147 Pa. 178, 23 A. 337, 338, 29 Wkly. Notes Gas. 331. R. I. McCoart v. Rhode Island Co., 108 A. 585. Qnoting opinion in case distin- guishable as to its facts. Where the facts relating to insanity, In a suit to set aside a will, and those on a trial for assault with intent to kill, in which insanity was alleged as a defense, were clearly distinguishable, extracts from the opinion of the Su- preme Court in the will case regard- ing insanity, which were liable to mis- lead the jury, should not have been read as a part of the charge. Lowe v. State, 96 N. W. 417, 118 Wis. 641. Argumentative instructions. An instruction on dying declarations, although literally quoted from an opinion of Supreme Court, was prop- erly refused as argumentative. Har- per V. State, 75 So. 829, 16 Ala. App. 153. 2 7 Cousins V. Partridge, 79 Cal. 224, 21 P. 745. 2 8 In re Spencer's Estate, 96 Cal. 448, 31 P. 453. 2 9 Karnopp v. Ft. Smith Light & Traction Co., 178 S. W. 302, 119 Ark. 295. Beading from dictionary. The practice of the court of reading to the jury, in its charge, definitions of a word given in dictionaries is not to be commended. State v. Rivers, 78 A. 786, 84 Vt. 154. . § 411 INSTRUCTIONS TO JURIES 732'. incidental statement in an opinion in another case, not laid down as a proposition of law, should not be given to the jury,^" and the mere fact that certain language has been used by an appellate judge in an opinion is not of itself sufficient to justify the use of the same language by a trial court in an instruction in a similar case,*^ since language used by an appellate court in discussing the facts of a case is often inappropriate for use by a trial judge in instructing a jury.*^ The court should not give as an instruction a paragraph from a book containing matters hard to be understood and calculated to confuse and mislead.** The facts of another case may be referred to for the purpose of illustration.** § 412. Quoting entire opinion or extracts therefrom It will ordinarily be error for the court to read to the jury the full text of a reported case,*® and then state to the jury that the court adopts the decision of such reported case as the law on the sub- ject in the case on trial.*® A court, in instructing as to the mean- ing of a word should not mislead and confuse the jury by reading a whole opinion of the appellate court, whose main point is not analogous to the case at bar, although it contains a correct defini- tion of the word, but should cull that part which is to the point,*' and the giving of an instruction by reading _the entire headnote of a reported case is erroneous, as likely to mislead, where the facts of such case are very different from those of the case on trial.** It is equally error to instruct the jUry by readiiig an extract from a published opinion of the Supreme Court, if such extract, apart 30 Jones V. State, 65 Ga. 506. instruction consisting of an argumen- 31 Jones V. F. S. Koyster Guano Oo., tatiye discussion by the Supreme 65 S. E. 361, 6 Ga. App. 506 ; Aber- Court of the law of qualified privilege nathy v. Emporia Mfg. Co., 95 S. E. as a defense to libel, taken from an 418, 122 Va. 406. opinion in another case, was Improper. Adopting instructions approved Davis v. Hearst, 116 P. 530, 160 Cal. Tiy appellate court. It Is not safe 143. for trial courts to instruct in the Ian- sa Nicholas v. Kershner, 20 W. Va. guage of opinions or to adopt instruc- 251. tions appearing therein, as instruc- s^McGuffln v. State, 59 So. 635, 178 tions are approved only with refer- Ala. 40; State v. Chiles, 36 S. B. ence to exceptions urged. Liddle v. 496, 58 S. C. 47. Salter, 163 N. W. 447, 180 Iowa, 840. ss Lendberg v. Brotherton Iron 32 Central of Georgia R. Co. v. Min. Co., 75 Mich. 84, 42 N. W. 675. Hartley (Ga. App.) 103 S. E. 259; a o Frank v. Williams, 36 Fla. 136, Southern Cotton Oil Co. v. Skipper, 18 So. 351. 54 S. E. 110, 125 Ga. 368; Atlanta & st Stewart v. Hunter, 16 Or. 62, 16 W. P. R. Co. V. Hudson, 51 S. E. 29, Pac. 876, 8 Am. St. Rep. 267. 123 Ga. 108. 38 stueke v. Milwaukee & M. R. Co.^ Argumentative' discussion. An 9 Wis. 202. 733 FORMAL MATTERS §414 from the context, appears likely to mislead the jury,** or states a different proposition from that contained in the entire opinion.** § 413. Citing authorities While the practice of noting authorities and citations of cases on the margin of instructions in support thereof is not commend- ed," and is regarded as improper in some jurisdictions,** such notation is considered not to be prejudicial error.** F. Repetition of Instructions Repetition as constituting argument, see post, § 420. § 414. Necessity and propriety of repetition Repetition of instructions on reasonable doubt, see ante, § 278. Where ideas or propositions of law are cdrrectly set out in one instruction, it is not ordinarily required that they should be repeated in other instructions,** this rule applying in criminal cases.*^ One ssTalmage v. Davenport, 31 N. J. Law (2 Vroom) 561. *o Laidlaw v. Sage, 80 Hun, 550, 30 N. X. S. 496. *i Herzog v. Campbell, 47 Neb. 370, 66 N. W. 424. *2 State V. Sage, 126 P. 403, 22 Ida- ho, 489, Ann. Cas. 1914B, 251 ; Sprin- ger V. Orr, 82 111. App. 558. 43 In re Goldthorp's Estate, 88 N. W. 944, 115 Iowa, 430; Sioux City & P. K. Co. v.'Finlayson, 16 Neb. 578, 20 N. W. 860, 49 Am. Rep. 724. 4* Ark. St. Louis, I. M. & S. Ry. Co. V. Blaylock, 175 S. W. 1170, 117 Ark. 504, Ann. Cas. 1917A, 563. Cal. leaver v. Carter, 152 P. 323, 28 Cal. App. 241. Ga. Millen & S. W. R. Co. v. Al- len, 61 S. E. 541, 130 Ga. 656. 111. Village of Altamont v. Carter, 63 N. E. 613, 196 111. 286, affirming judgment 97 111. App. 196; Graybeal V. Gardner, 146 111. 337, 34 N. E. 528; affirming 48 111. App. 305; Kopf v. Xordy, 208 111. App. 580; Dwyer v. Chicago City Ry. Co., 153 111. App. 463. Imd. Vandalia Coal Co. v. Yemm, 92 N. E. 49, 175 Ind. 524; Surber v. Mayfield, 60 N. B. 7, 156 Ind. 375. Iowa. Scovel v; Monaghan, 164 N. W. 783, 183 Iowa, 581 ; Doran v. Wa- terloo, C. F. & N. Ry. Co., 147 N. W. 1100; Lillie v. Brotherhood of Rail- way Trainmen, 86 N. W. 279, 114 Iowa, 252. Minn. Brown v. Duluth, S. S. & A. Ry. Co., 179 N. W. 1008. Mo. Cunningham v. Elvins (App.) 194 S. W. 515. , Neb. Nebraska I^at. Bank v. Burke, 44 Neb. 234, 62 N. W. 452. N. H. Osgood V. Maxwell, 95 A. 954, 78 N. H. 35. Okl. Flohr V. Territory, 78 P. 565, 14 Okl. 477. Tex. Anderson v. Crow (Civ. App.) 151 S. W. 1080. Utah. Smith v. Columbus Buggy Co., 123 P. 580, 40 Utah, 580. Vt. White V. Central Vermont Ry. Co., 89 A. 618, 87 Vt 330. Va. E. I. Du Pont de Nemours & Co. Y. Snead's Adm'r, 97 S. E. 812, 124 Va. 177. Wis. Jones v. Monson, 119 N. W. 179, 137 Wis. 478, 129 Am. St. Rep. 1082. 45 Cal. People v. Cornell, 155 P. 1026, 29 Cal. App. 430; People v. Stevens, 114 P. 800, 15 Cal. App. 294 ; People V. Smith, 84 P. 449, 3 Cal. App. 62. Conn. State v. Weiner, 80 A. 198, 84 Conn. 411 ; State v. Kritchman, 79 A. 75, 84 Conn. 152. Ga. Brundage v. State, 67 S. E. :§ 414 INSTRUCTIONS TO JURIES 734 clear pointed statement to the jury of each proposition advanced is sufficient.** Instructions involving such a repetition are prop- erly refused,*' since the practice of multiplying instructions an- nouncing in effect the same legal principles or embodying the same ideas is discouraged by the courts,** as having a tendency to mis- lead, or confuse the jury.** Thus, where instructions have been given covering the subject •of contributory negligence,®* comparative negligence,®^ doctrine of 1051, 7 Ga. App. 726; Hall v. State, 66 S. E. 486, 7 Ga. App. 186i Ind. Kennedy v. State, 6 N. B. 305, 107 Ind. 144, 57 Am. Rep. 99. Kan. State v. Bufflngton, 81 P. 465, 71 Kan. 804, 4 L. R. A. (N. S.) 154 ; State v. Kearley, 26 Kan. 77. Mo. State v. Dlpley, 147 S. W. Ill, 242 Mo. 461. Mont. State \, Connors, 94 P. 199, 37 Mont. 15. Tex. Cauthern v. State (Or. App.) ■65 S. W. 96. W. Va. State v. Cooper, 82 S. B. 358, 74 W. Va. 472, Ann. Cas. 1917D, 453; State v. Prater, 43 S. B. 230, 52 W. Va. 132. Illustrations of repetitions beld unnecessary. Where, on a prosecu- tion for aiding and' abetting a third party in killing* decedent, the court ■charged the jury that they must be- lieve from all the evidence, to the excRision of a reasonable doubt, that such third party did feloniously kill decedent, it was not necessary in an- other part of the same instruction, relating to the charge against defend- ant of aiding and abetting such third party in the killing of decedent, to add the words "if he did kill him." Fuqua v. Commonwealth, 73 S. W. 782, 24 Ky. Law Rep. 2204. 46 carr v. State, 23 Neb. 749, 37 N. W. 630; Olive v. State, 11 Neb. 1, 7 N. W. 444. 47 111. Burke v. Toledo, P. & W. By. Co., 109 N. B. 691, 268 111. 614, affirming judgment 190 111. App. 419; Mattoon Heat, Light & Power Co. v. Walker, 134 111. App. 414; East St. Louis & S. By. Co. v. Zlnk, 133 111. App. 127, judgment affirmed 82 N. E. 283, 229 111. 180. Iowa. Biepe v. Biting, 89 loj^fa, 82, -56 N. W. 285, 48 Am. St. Rep. 356, 26 L. R. A. 769. Mo. Sires v. Clark, 112 S. W. 526, 132 Mo. App. 537. Tex. El Paso Electric By. Co. v. Benjamin (Civ. App.) 202 S. W. 996; Oity of Greenville v. Branch (Civ. App.) 152 S. W. 478. 48 Ark. Sadler v. Sadler, 16 Ark. 628. 111. Grace & Hyde Co. v. Strong, 79 N. B. 967, 224 111. 630, affirming judgment 127 111. App. 336; Field v. Crawford, 146 111. 136, 34 N. E. 481; Holler V. Chicago Ci(y By. Co., 209 111. App. 140; Sullivan v. People, 108 111. App. 328. Ind. State v. Totten, 114, N. E. 82, 185 Ind. 580; Modem' Woodmen of America v. Kincheloe, 94 N. E. 228, 175 Ind. 563, Ann. Cas. 19130, 1259. Iowa. Arnold v. Ft. Dodge, D. M. & S. B. Co., 173 N. W. 252, 186 Iowa, 538. Ky. Proctor CoaU Co. v. Beaver's Adm'r, 152 S. W. 965, 151 Ky. 839; Trosper Coal Co. v. Crawford, 153 S. W. 211, 152 Ky. 214. Mo. Beeves v. Lutz, 177 S. W. 764, 191 Mo. App.. 550. Tex. Oranflll v. Hayden, 80 S. W. 609, 97 Tex. 544, reversing judgment (Civ. App.) 75 S. W. 573; Willis v. Strickland, 50 S. W. 159. 'Va. Atlantic Coast Line B. Co. v. Tyler, 98 S. E. 641, 124 Va. 484. 'W. Va. State v. Legg, 53 S. E. 545, 59 W. Va. 315, 3 L. B. A. (N. S.) 1152. 49 Dean v. State, 214 S. W. 38, 139 Ark. 433 ; Bobbins v. Pugit (Ind.) 126 N. B. 321; Goodman v. Saperstein, 81 A. 695, 115 Md. 678; Bosenkovitz v. United Bys. & Electric Co. of Balti- more City, 70 A. 108, 108 Md. 306. 6 Sells V. Grand Trunk Western 61 Hay ward v. Merrill, 94 111. 349, 34 Am. Rep. 229. 735 FORMAL MATTERS §414 last clear chance,*'^ effect of usury on the rights of the parties,^* stating the rule as to the measure of damages," or as to the bur- den of proof,®^ or the requirement that a party shall prove his case , by a preponderance of the evidence,^ such ideas need not be re- peated in other instructions. So the words, "If the jury find from the evidence," contained in one clause of an instruction, need not be repeated in subsequent clauses.^' In a criminal case the trial judge should take care to give to the jury once and in clear language every principle of law applicable to the case, and when he has done this he is not required to repeat any of them, no matter how many separate instructions are asked which may include them.^* Thus a repetition o£ the definition of the offense charged should be avoided, if possible,®* and this rule applies to instructions relating to the presumption of innocence, reasonable doubt, and the degree of proof required of the state,** to instructions on malice aforethought and premeditation,*'^ on the law of justifiable or excusable homicide,*^ and on circumstances of mitigation.** Information that, in order to convict, it must appear that the offense charged was committed in the county named in the indictment, need not be repeated,** and after the court has de- Ry. Co., 206 111. App. 45; Knowles V. Mulder, 74 Mich. 202, 41 N. W. 896, 16 Am. St. Rep. 627 ; Cannon v. Lewis, 18 Mont. 402, 45 P. 572; Glover v. Houston Belt & Terminal Ry. Co. (Tex. Civ. App.) 163 S. W. 1063 ; Missouri, K. & T. Ry. Co. of Texas v. Stogner (Tex. Civ. App.) 163 S. W. 319. 6 2 Cleveland, C, C. & St. L. Ry. Co. V. Champe, 102 N. E. 868, 55 Ind. App; 243. 58 Walker v. Lastinger, 81 S. E. 203, 141 Ga. 435. 6* Steams Coal & Lumber Co. v. Tuggle, 161 S. W. 1112, 156 Ky. 714. SB Stedman v. O'Neil, 72 A. 923, 82 Conn. 199, 22 L. B. A. (N. S.) 1229; MitcheU v. Hindman, 150 111. 538, 37 N. E. 916; Ducharme v. St. Peter, 135 111. App. 530. 06 J. M. Robinson, Norton & Co. v. Stalcup, 106 N. E. 395, 58 Ind. App. 370. 6 7 ni. Tov^n dt Bethel v. Pruett, 74 N. E. Ill, 215 111. 162 i Slack v. Harris, 65 N. E. 669, 200 111. 96, affirming judgment 101 111. App. 527; Village of Altamont v. Carter, 63 N. E, 613, 196 111. 286, affirming judgment 97 111. App. 196; People v. Mullen, 179 111. App. 262 ; Heffernan v. Bail, 109 111. App. 231 ; Cat4cago, R. I. & P. Ry. Co. V. Keely, I'OS 111. App. 205; Cleve- land, C. C. & St. li. Ry. Co. V. Hall, 70 111. App. 429. Ind. Indianapolis St. Ry. Co. v. Robinson, 61 N. E. 936, 157 Ind. 414. Mo. Logan v. Field, 90 S. W. 127, 192 Mo. 54. N. C. Wilkie V. Raleigh & C. F. R. Co., 37 S. B. 204, 127 N. C. 203, judgment modified on rehearing 38 S. E. 289, 128 N. C. 113. 5 8 Thrasher v. State, 53 So. 256, 168 Ala. 130 ; People v. BickerstafC (Cal. App.) 190 P. 656; People v. White, 128 P. 417, 20 Cal. App. 156. 5 9 People v. Martin, 185 P. 1003; Castner v. People, 184 P. 387, 67 Colo. 327. eo People v. Bickerstafe, 190 P. 656. 61 Brewer v. State, 78 S. W. 773, 72 Ark. 145. 6 2 Territory v. Gonzales, 68 P. 925, 11 N. M. 301. es Holt V. State, 100 S. W. 156, 51 Tex. Cr. R. 15. 6* Keys V. State, 37 S. E. 762, 112 Ga. 392, 81 Am. St. Rep. 63; State V. Darragh, 54 S. W. 226, 152 Mo. 522.. §415 INSTRUCTIONS TO JURIES 736 fined certain terms as used in a designated instruction, it is not necessary to define such terms again, when afterwards used.*^ § 415. Limitations of rule against repetition But while one clear and correct statement of a proposition of law would seem to be enough, the mer^ repetition of it will not neces- sarily constitute reversible error.*^ Where such a repetition is not prejudicial to the party complaining thereof, it will not work a «5 Commonwealth v. Stout, 14 Ky. Law Rep. (abstract) 576. o« U. S. Grand Trunk Ry. Co. of Canada v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 4S5, affirming Ives V. Grand Trunk R. Co. (C. 0. Mich.) 35 Fed. 176. Colo. Liutz V. Denver City Tram- way Co., 131 P. 258, 54 Colo. 371. Ga. Wilson v. Barnard, 72 S. B. 943, 10 Ga. App. 98. 111. People v. Lewis, 96 N. B. 1005, 252 111. 281 ; People v. Cotton, 95 N. E. 283, 250 111. 338; Kravitz v. Chi- cago City Ry. Co., 210 111. App. 287; Lecklieder v. Chicago City Ry. Co., 172 111. App. 557 ; Eggmann v. Nutter, 169 111. App. 116; Roman v. Silber- trust, 159 111. App. 485; McMahon v. Chicago City Ry. Co., 143 111. App. 608, judgment affirmed '88 N. E. 223, 239 ill. 334. Ind.' Davis V. Bahb (Ind.) 125 N. E. 403. Iowa. Livingstone v. Dole, 167 N. W. 639, 184 Iowa, 1340; Doran v. Waterloo, C. F. & N. R. Co., 153 N. W. 225, 170 Iowa, 614; Covert v. Town of Lovilia, 149 N. W. 67, 167 Iowa; 163 ; Buchholtz v. Incorporated Town of Radcliffe, 105 N. W. 336, 129 Iowa, 27 ; State v. McCahill, 72 Iowa, 111, .33 N. W. 599. Ky. Wiltshire's Adm'x v. Kilter, ]'60 S. W. 743, 156 Ky. 168; Louis- ville & N. R. Co. V. Logsdon, 71 S. W. 905, 114 Ky. 746, 24 Ky. Law Rfep. 1566. Md. Pillard V. Chesapeake S. S. Co. of Baltimore, 92 A. 1040, 124 Md. 468. Mass. Mahar v. Steuer, 170 Mass. 454, 49 N. E. 741 ; Commonwealth v. Snelling, 32 Mass. (15 Pick.) 821. Minn. Jacobsen v. City of Minne- apolis, 132 N. W. 341, 115 Minn. 397. Mo. State v. Murray, 193 S. W. 830 ; Huss v. Heydt Bakery Co., 108 S. W. 63, 210 Mo. 44. Neb. Gandy v. Bissell's Estate, 97 N. W. 682, 5 Neb. (Unof.) 184, revers- ed on rehearing lOO N. W. 803, 72 Neb. 356; Denise v. City of Omaha, > 69 N. W. 119, 49 Neb. 750; Gran v. Houston, 45 Neb. 813, 64 N. W. 245. N. H. Saltmarsh v. Bow, 56 N. H. 428. Ohio. Smart v. Masters & War- dens of N. C. Lodge No. 2, 27 Ohio Cir. Ct. R. 273. Pa. Murray v. New Xork, L. & W. R. Co., 108 Pa. 37. S. C. Keys v. Winnsboro Granite Co., 51 S. B. 549, 72 S. C. 97. Tex. Smith v. Bryan (Civ. App.) 204 S. W. 359 ; Woodard v. State, 111 S. W. 941, 54 Tex. Cr. R. 86; Von Boeckmann v. Loepp (Civ. App.) 73 S. W. 849; International & G. N. Ry. Co. V. Leak, 64 Tex. 654. Wis. Klipstein v. Raschein, 94 N. W. 63, 117 Wis. 248. Illiistrations of repetition not constituting reversible error. In an action for personal injuries, where the charge correctly stated tie law governing the case, a judgment will not be reversed because in the charge the judge twice stated that, in order to entitle plaintiff to a verdict, he must show negligence on the part of defendant, and twice stated that plain- tiff must show that he exercised ordi- nary care to avoid the accident. Maes V. Texas & N. O. Ry. Co. (Tex. Civ. App.) 23 S. W. 725. Where the court charged that the purchasers must have knowledge of the fraud to avoid a fraudulent conveyance, and in an- other charge he stated more specifical- ly what would amount to such knowl- edge, and in other separate instruc- tions he charged that such knowledge would avoid the sale, though the purchaser had paid a valuable con- sideration, that it would avoid the sale, though the vendee had no fraud- ulent intent in making the purchase, 737 FORMAL MATTERS §415 reversal.*' It is only where the repetition of a correct instruction appears to have created in the minds of the jury an erroneous im- pression of the law,** or to have prejudiced a party by giving un- due prominence to a particular phase of a case,** that the judgment of the lower court will be disturbed on account thereof. Unnecessary repetitions of instructions on a single subject, given at the instance of both parties cannot be made a ground of com- plaint against the verdict."* that the sale with such notice was void as against the rights of credi- tors, that ' the sale would be void, though the only motive for making the purchase was because the prop- erty was cheap, and that actual knowledge on the part of the pur- chaser was not necessary to set aside the sale, it was held that, though the charge was objectionable, the judg- ment should not be reversed on the ground of too frequent repetition of the same principle of law to the jury. Traylor v. Townsend, 61 Tex. 144. «T Davis v. Michigan Cent. R. Co., Ill N. W. 76, 147 Mich. 479; Rob- inson V. State, 98 N. W. 694, 71 Neb. 142. 6 8 Adams v. Elgin & Belvidere Elec- tric Co., 204 111. App. 1. 69 Ark. Huffman v. Sudbury, 194 S. W. 510, 128 Ark. 559. Fla. Jacksonville Electric Co. v. Hellenthal, 47 So. 812, 56 Fla. 443. Imd, Terry v. Davenport, 83 N. E. 636, 170 Ind. 74. Kan. Murray v. Empire Dist. Elec- tric Co., 162 P. 1145, 99 Kan. 507; Lawder v. Hinderson, 36 Kan. 754, 14 P. 164. Tex. Carter v. Missouri, K. & T. Ry. Co. of Texas (Civ. App.) 160 S. W. 987; Wood v. Dean (Civ. App.) 155 S. W. 363 ; Pettithory v. Clarke & Courts (Civ. App.) 139 S. W. 989; Wolf Cigar Stores Co. v. Kramer, 109 S. W. 990, 50 Tex. Civ. App. 411 ; (Civ. App.) Southern Kansas Ry. Co. of Texas V. Sage, 80 S. W. 1038, revers- ed 84 S. W. 814, 98 Tex. 438 ; Conti- nental Ins. Co. V. Pruitt, 65 Tex. 125. Wasb. Alaska S. S. Co. v. Pacific Coast Gypsum Co., 138 P. 875, 78 Wash. 247. Instructions held not improper under rule. A repetition in the In- INST.TO Juries — 47 structions of the rule as to preponder- ance of the evidence, and the applica- tion of it to different phases of the case. Sonka v. Sonka (Tex. Civ. App.) 75 S. W. 325; Posener v. Harvey (Tex. Civ. App.) 125 S. W. 356. Where, in an action for injuries to plaintiff's wife, plaintiff contended that the railroad company was neg- ligent in failing to stop its train at a certain station for a rea- sonable time, in starting it before plaintiff's wife could alight, in stop- ping it again at an inconvenient and dangerous place, and in failing to as- sist her in alighting, and the court, in instructing on each of these issues, charged that the plaintiff must estab- lish negligence by a preponderance of the evidence, there was no such repetition of that phrase as to give undue prominence thereto. Martin v. St. Louis S. W. Ry. Co. of Texas (Tex. Civ. App.) 56 S. W. 1011. Where the court chat^d abstractly upon de- fendant's theory of ■ defense, the giv- ing of a special charge presenting the rule of law in connection with the concrete facts was not improper as un- due repetition. Jones v. Missouri, K. & T. Ry. Co. of Texas (Tex. Civ. App.) 157 S. W. 213. Where the main charge submits the issue of contributory neg- ligence only gerierally, there is no un- undue repetition in reference to it because a special charge submits it .in connection with the very facts on which defendant relies. Andrews v. Jefferson Cotton Oil & Refining Co., 74 S. W. 342, 32 Tex. Civ. App. 288. An instruction does not give undue prominence to a rule adopted for com; putation by repeating it in illustra- tions of its application. McAuley v. Harris, 71 Tex. 631, 9 S. W. 679. 7 State V. Snider, 94 S. E. 981, 81 W. Va. 522. § 415 INSTRUCTIONS TO JURIES 738 It is held that a party has a right to a special instruction on any group of facts supported by pleadings and evidence, and which, if true, would be of controlling effect in his favor, although a charge in general terms is given which is to the same effect,'^ and where the failure to repeat a particular proposition of law may mis- lead the jury, it will be error not to repeat it''* § 416. Effect of repetition which misleads or gives undue promi- nence to certain matters As is implied in the foregoing statement of the rule, if the fre- quent repetition of a phrase or a proposition of law is mislead- ing,''* or is such as to give undue prominence to certain features of a case, to the prejudice of one party or the advantage of- an- other,'* it will constitute reversible error. 71 Chicago, B. I. & G. R. Co. v. Mitchum (Tex. Civ. App.) 194 S. W. 622. 72 The Scran tonian v. Brown, 36 Pa. Super. Ct. 170. Where an instruction was given n^on one brancli of a case, but was omitted when it should have been given as a qualiOcation of another in- struction upon a different branch of the case, it is cause for reversal. -Cochrane v. Faris, 18 Tex. 850. 73 Piette V. Bavarian Brewing Co., 91 Mich. 605, 52 N. W. 152. 7* ni. People V. Harrison, 104 N. B. 259, 261 111. 517; Kahl.v. Chicago, M. & St. P. Ry. Co., 125 111. App. 294. Okl. Price v. State, 98 P. '447, 1 Okl. Cr. 358. Tex. Carl v. Settegast (Civ. App.) 211 S. W. 506; St. Louis Southwest- ern Ry. Co. of Texas v. Kerr (Civ. App.) 184 S. W. 1058; Heldenfels v. School Trustees of School Dist. No. 7, San Patricio County (Civ. App.) 182 S. W. 386; Lafeerty v. Wilson (Civ. App.) 162 S. W. 379; Risinger v. Sul- livan (Civ. App.) 161 S. W. 397 ; State v. Haley (Civ. App.) 142 S. W. 1003 ; Continental Oil & Cotton Co. v. Thompson (Civ. App.) 136 S. W. 1178 ; Stringfellow v. Braselton, 117 S. W. 204, 54 Tex. Civ. App. 1; Redmond v.' Sherman Cotton Mills (Civ. App.) 100 S. W. 186 ; Highland v. Houston, E. Sa W. T. Ry. Co. (Civ. App.) 65 S. W. 649. Wasb. Chicago, M. & St. P. Ry. Co. V. Alexander, 91 P. 626, 47 Wash. 131. Instructions held erroneous within rule. In an action against a carrier for death of a passenger, where the issues as to whether dece- dent was guilty of contributory neg- ligence and whether she died from natural disease were sharply contest- ed, the giving of special charges re- quested by defendant and calculated, by reason of repetition giving undue prominence to the defenses of con- tributory negligence and death from other than her injuries, to impress the jury with the belief that, in the court's opinion, plaintiff could not re- cover, was error. Sizemore v. St. Louis & S. v. Ry. Co. (Tex. Civ. App.) 130 S. W. 1024. Where In an action for injuries to a passenger while alighting from defendant's train, the court in its general charge submitted the ques- tion whether the box on which its passengers alighted was unfit or un- safe for the purpose; another charge requested by plaintiflE was given to the effect that if the box used was such as was ordinarily used by defendant, and the jury should believe that by reason of its size and construction it was not a proper appliance, and that defendant was negligent in using such box, and by reason of such negligence plaintiff was caused to fall, then to find for plaintiff and another charge requested and given was that if the jury believed that the box commonly used by defendant in discharging its' passengers, would, by reason of its size and construction, tip, slip, and 739 FORMAL MATTERS §416 To emphasize by repetition an idea already contained in a charge may .be as harmful as a charge on the weight of evidence,'^ and the judge ought not to repeat a rule of evidence, when by so doing the jury may be led to believe that the rule has not been com- plied with in the case before them.'* It is held, however, that, bur- den of proof being a legal principle, not a fact issue, the repetition of such principle in instructions cannot mislead the jury into the belief that the court entertains views on fact issues adverse to the plaintiff." turn over, that by reason of such fact it was an unsafe appliance, and that defendant was negligent in using such box, then to find for plaintiff, and the evidence was such that it would au- thorize a verdict either way, it was held that the two special charges were suflBclently covered by the gen- eral charge, and that the repetition tended to impress on the jury the idea that the box was possibly an un- safe appliance. Missouri, K. & T. Ry. Co. of Texas v. Dunbar, 108 S. W. 500, 49 Tex. Civ. App. 12. The re- iterating, in instructions, in an action against a railway company for run- ning over a pedestrian on its tracks by a train, of the principles of law applicable to the issue of contributory negligence, is erroneous, as giving it undue prominence. Kroeger v. Texas & P. Ry. Co., 69 S. W. 809, 30 Tex. Civ. App. 87. In an action on a note given for the purchase price of land, and to foreclose a vendor's lien which defendant claimed was waived, it was error for the court to reiterate in its charge that "it was not necessary that there should be any contract, verbal or in writing, in order to create a vendor's lien," and that "the burden of proof rested on defendants to show a waiver of the lien," and thereby give undue prominence to such propo- sitions. Cross V. Kennedy (Tex. Civ. App.) 66 S. W. 318. Repetition of instrnctions on measnTe of damages. The giving of several instructions on the question of damages has not a tendency to lead the jury to think the court believes plaintifE should have a verdict ; the court cautioning them that they are to make no such deduction, and all but one of' the instructions being worded to prevent the giving of exces- sive damages in the event of a verdict for plaintiff. Johnston v. Beadle, 91 P. 1011, 6 Cal. App. 251. 7 5 Frisby v. Withers, 61 Tex. 134. Emphasizing preponderance of evidence rule. Repeating 12 times in the charge that the jury must be- lieve "from a preponderance of the evidence" the facts alleged by plain- tiff tended to emphasize the burden cast by law on plaintiff, and was prob- ably harmful. Cook v. Urban (Tex. Civ. App.) 167 S. W. 251. 7 6 Hays V. Hays, 66 Tex. 606, 1 S. W. 895. ^'^ Beatty v. Metropolitan West Side Elevated R. Co., 141 111. App. 92; Dallas Waste Mills v. Texas Cake & Linter Co. (Tex. Civ. App.) 204 S. W. 868. §417 INSTEUCTIONS TO JUEIES ,740 G. Argumentative Instructions § 417. General rule Instructions argumentative in form are objectionable, whether given in civil ''* or in criminal cases,'* and it is proper for the court 78 Ala. Dill worth v. Holmes Furni- ture & Vehicle Co., 73 So. 288, 15 Ala. App. 340; Gulfport Fertilizer Co. v. Jones, 73 So. 145, 15 Ala. App. 280; Alabama Great Southern R. Co. v. Loveman Compress Co., 72 So. 311, 196 Ala. 683; City of Tuscaloosa v. Hill, 69 So. 486, 14 Ala. App. 541, certiorari denied Ex parte Hill, 69 So. 598, 194 Ala. 559 ; Southern Ry. Co. V. B. L. Kendall & Co., 69 So. 328, 14 Ala. App. 242, certiorari denied Ex parte Southern Ry. Co., 69 So. 1020, 193 Ala. 681; Birmingham, B. & B. Rl. Co. V. Feast, 68 So. 294, 192 Ala. 410 ; Gulsby V. Louisville & N. B. Co., 52 So. 392, 167 Ala. 122; Loveman v. Birmingham By., L. & P. Co., 43 So. 411, 149 Ala. 515 ; Wisdom v. Reeves, 110 Ala. 418, 18 So. 13. Ark. St. Louis Southwestern By. Co. V. Aydelott, 194 S. W. 873, 128 Ark, 479; St. Louis, I. M. & S. Ry. Co. v. Coke, 175 S. W. 1177, 118 Ark. 49. Cal. Pierce v. United Gas & Elec- tric Co., 118 P. 700, 161 Gal. 176. Ga. Smith v. Hazlehurst, 50 S. B. 917, 122 Ga. 786. - 111. Grove v. Link, 201 111. App. 393; Stoutenborough v. Miller, 188 111. App. 220; Bacon v. Walsh, 184 111. App. 377; Dickey v. Ghere, 163 111. App. 641 ; Elgin, A. & S. Traction Co. V. Brown, 129 111. App. 62 ; Thorp V. Goewey, 85 111. 611. Imd. J. F. Darmody C6. v. Reed, 111 N. E. 317, 60 Ind. App. 662 ; Chi- cago & B. I. R. Co. V. Mitchell, 105 N. B. 396, 56 Ind. App. 354; Louisville & S. I. Traction Co. v. Short, 83 N. E. 265, 41 Ind. App. 570. Ky. Wills v. Tanner, 18 S. W. 166. Mich. O'Dea v. Michigan Cent. B. Co., 105 N. W. 746, 142 Mich. 265. Mo. Eads V. Gait Telephone Co. (App.) 199 S. W. 710; Buch v. Pryor (App.) 190 S. W. 1037; Eyley- Wilson Grocer Co. v. Seymour Canning Co., 108 S. W. 628, 129 Mo. App. 325; Johnston v. Atchison, T. & S. F. By. Co., 93 S. W. 866, 117 Mo. App. 308. N. C. Starling v. Selma Cotton Mills, 88 S. E. 242, 171 N. C. 222. Pa. Webb V. Lees, 149 Pa. 13, 24 A. 169. Tex. Hegmaa . v. Roberts (Civ. App.) 201 S. W. 268; Hedrick v. Smith (Civ. App.) 146 S. W. 305; State V. Haley (Civ. App.) 142 S. W. 1003 ; Ft. Worth & R. G. By. Co. v. Dial, 85 S. W. 22, 38 Tex. Civ. App. 260; Lumsden v. Chicago, B. I. & T. By. Co., 67 S. W. 168, 28 Tex. Civ. App. 225 ; Cordill v. Moore, 43 S. W. 298, 17 Tex. Civ. App. 217. Wash. Cowie v. City of Seattle, 62 P. 121, 22 Wash. 659. / Wis. Bodenheimer v. Chicago & N. W. Ry. Co., 123 N. W. 148, 140 Wis. 623 ; Jones v. Monson, 119 N. W. 179, 137 Wis. 478, 129 Am. St. Bep. 1082.. Illnstratioms of argumentative instructions. An instruction, in ac- tion to rescind contract for fraud, that contracts are presumed fair, and that the party attacking them had the burden of proving fraud. Under- wood V. Jordan (Tex. Civ. App.) 166 S. W. 88. Instruction that plaintiff could not recover for injury to ship- ment of stock if his agent knew of a defective condition in the car, and should have known that the injury would be thus caused. Nashville, C. & St. L. By. V. Hinds, 60 So. 409, 9 Ala. App. 534. Instructions that though defendant carrier's conductor told plaintiff passenger to take a seat in the rear car, the passenger was not required to do so Immediately, or un- til safe to do so, and that the con- ductor could assume, in the absence of notice to the contrary, that plain- tiff would not attempt to go if mani- festly dangerous to a man of ordi- '0 See note 79 on page 744, 741 FOEMAL MATTERS §417 to refuse such an instruction.*" Such instructions are improper, for nary prudence. Birmingham Ry., Light & Power Co. v. Yates, 53 So. 915, 169 Ala. 381. An instruction "that the law does not impose on the railroad company the duty of so pro- viding for the safety of persons go- ing from the train to the boat, in this case, that they will encounter no pos- sible danger and meet with no casu- alties in the use of the appliances pro- vided." Yazoo & M. v. R. Co. v. Hill, 216 S. W. 1054, 141 Ark. 378. An in- struction, in an action against a car- rier for injuries to a passenger, that there was no evidence tending to show any negligence on the part of the motorman which was the proxi- mate cause of plaintiff's injury. Mobile Light & R. Co. v. Walsh, 40 So. 560, 146 Ala. 295. An instruc- tion, in an action for injuries to a passenger by the derailment of the train, that there was no evidence that there was anything the matter with the engine that caused the wreck, and that the jury could not find that any defect in the engine caused the wreck ; that if they found for the passenger. It must be on ac- count of something other than the condition of the engine. Texas & P. Ry. Co. V. Mosley (Tex. Civ. App.) 124 S. W. 485. A charge that contin- uance was refused only because plain- tiff agreed to admit what an absent witness would swear, and that it would be manifestly unfair for the jury not to give his evidence the same weight as if he had been present. Kansas City, M. & B. R. Co. v. Hen- son, 31 So. 590, 132 Ala. 528. An in- struction, in an action by a firm for corn shipped to defendant for sale, that the contract on which the suit was based was merged, into the writ- ten letters of a partner to defendant and the letters of defendant to the partner, and that the jury might look to the letters to determine with whom the contract was made. Borough v. G. M. Harrington & Son, 42 So. 557, 148 Ala. 305. A charge that the jury could not assess damages for mental! pain and anguish. Western Union Telegraph Co. v. Griffith, 50 So. 91, 161 Ala. 241. An instruction, in an action for negligent death, in which the issues were whether a set- tlement pleaded in defense was fraud- ulent and whether the administratrix was competent to make it, that it was the policy of the law to favor private settlements. Loveman v. Birmingham Ry., L. & P. Co., 43 So. 411, 149 Ala. 515. An instruction, in an action for causing death, that the damages re- coverable are not intended to com- pensate the parents for the death of their son, but would be such sum as would be sufficient to punish the act done, and if defendant's engineer ran the engine against deceased through mere negligence or error of judgment plaintiff ought not to recover as much as if he had wantonly or intentional- ly run his train into decedent. South- ern Ry. Co. V. Smith, 55 So. 913, 173 Ala. 697. An instruction, in an ac- tion for personal injuries, that de- fendant had no absolute,right to have the plaintiff examined to determine the extent of her injuries. Birming- ham Ry., Light & Power Co. v. King, 42 So. 61?, 149 Ala. 504. A charge that "an opprobrious epithet, convey- ing the idea] of a lack of chastity, would to a wanton cause no pain, while, applied to a pure and gentle wife, no tongue can tell the anguish, the shame, the sense of humiliation, it would bring." Hanna v. Hanna, 3 Tex. Civ. App. 51, 21 S. W. 720. In- structions, in ejectment, that the lo- cation of the land was a physical fact to be determined by the jury, that the testimony of certain expert witness- es should not be considered as that of experts, but merely as that of wit- nesses testifying to such particular physical facts, and that as to physi- cal facts, such as the location of streams or bluffs thereof and their meanderings, the testimony of those who knew the facts was as worthy of belief as that of experts. Chappell V. Roberts, 43 So. 489, 150 Ala. 45T. A charge that, "when plaintiff come? into court and undertakes to sustain his case by oral admissions of his ad- versary after the suit has been com- 80 See note 80 on page 746. §417 INSTRUCTIONS TO JUEIBS 742 the reason that they violate the rule that they should be clear and meneed, such testimony should Be re- ceived with caution, because of the improbability that a party would make statements prejudicial to him- self, and because of the frailty of memory of witnesses, and their lia- bility to misunderstand the words used." Riddle v. Webb, 110 Ala. 599, 18 So. 323. A charge that the law abhors fraud. McClendon v. MdKis- sack, 38 So. 1020, 143 Ala. 188. A charge that an accusation of slander is easy to be brought and hard to defend, though the defendant be in- nocent. McLaughlin v. Beyer, 61 So. 62, 181 Ala. 427. An instruction, in an action for injuries to a servant, that the burden of proof is on plain- tiff, and that, if the jury found that there was a disputed fact left in doubt, they should find the fact for defendant. Woodward Iron Co. v. Sheehan, 52 So. 24, 160 Ala. 429. An instruction, in an action for death of a servant while riding certain cars down an incline, that no duty rested on intestate's foreman to instruct him about riding the cars down the in- cline, if the danger was obvious and intestate was sufficiently developed to understand the danger, was prop- erly refused as argumentative. Woodstock Iron Works v. Kline, 43 So. 362, 149 Ala. 391. An instruc- tion, in an action for the death of a child struck by a train, that the en- gineer did not discover the child un- til he became aware that the object he saw on the track was a human being. Southern Ry. Co. v. Smith, 50 So. 390, 163 Ala. 174. A charge that, if any individual juror should believe that decedent's negligence contributed in the slightest degree to his death, plaintiff could not recover on certain counts. Alabama Great Southern R. Co. V. Hanbury, 49 So. 467, 161 Ala. 358. Instruction, in an action for death of a child, caused by falling into a drain into which was dis- charged hot water from a mill, that it was not necessary to prove that the i)ool of water was not of itself attractive to children was properly refused as argumentative. Thompson v. Alexander City Cotton Mills Co., 67 So. 407, 190 Ala. 184, Ann. Cas. 1917A, 721. An instruction that the law is that one who has by his neg- ligence proximately contributed to his injury cannot recover damages against another who has negligently caused his death, and that the rule is applicable though the person injured is under 14 years of age, if he has suf- ficient mental capacity. Moss v. Mos- ley, 41 So. 1012, 148 Ala. 168. An in- struction, in a suit for maintaining a nuisance by allowing filth to accumu- late near plaintiff's lot, that In the nature and conditions of society nu- merous annoyances arise which do not give rise to liability, that the Injury must be real, and not imaginary or whimsical, and must be material, and not simply inconvenience or. trifling interruption, and that, unless such injury had been inflicted, the jury should find for defendant. N. K. Fairbank Co. v. Nicolai, 47 N. E. 360, 167 111. 242. An instruction, in an ac- tion for damages for maintaining a nuisance by discharging oil and wa- ter into the street and upon plain- tiff's- property, that, even though the jury find that plaintiff's property was located in a manufacturing district, defendant would be liable in dam- ages if the jury believed that it was guilty of maintaining a nuisance close to plaintiff's residence, as the term "nuisance" was therein defined, and that plaintiff suffered inconveni- ence therefrom. Continental Oil & Cotton Co. V. Thompson (Tex. Oiv. App.) 136 S. W. 1178. An instruction, in an action to recover compensation for medical services rendered, that there is nothing more sacred about the account of a physician than any other indebtedness, • and that if, from the facts in the case, the jury find that there was no agreement as to fee to be charged, then the plaintiff is only entitled to a reasonable fee for serv- ices actually rendered, as proven by the evidence. Morrisette v. Wood, 26 So. 307, 123 Ala. 384, 82 Am. St. Rep. 127. An instruction, in an action against a railroad for injuries- to a traveler on a highway, caused by his mule taking fright at a mail crane ^^^ FORMAL MATTERS § 417 concise, presenting only the point or matter of law on which the erected at a crossing, that the term "a mule of ordinary gentleness," as used in the complaint, does not mean any particular mule which is ordi- narily gentle, but means a mule which is as gentle as ordinarily gentle mules. Western Ey. of Alabama v. Cleghorn, 39 So. 133, 143 Ala. 392. A charge that the degree of care required of one entering the railroad tracks of defendant to discover and avoid in- jury from an approaching engine was as great as that which devolved on defendant's employes to discover and avoid injuring plaintiff, and, if the jury believed that if plaintiff had ex- ercised as high a degree of care to guard against injury as defendant's employes should have observed to avoid injuring plaintiff, plaintiff would not have been injured, he could not recover, was properly refused as argumentative. Missouri, K. & T. Ry. Co. of Texas v. Owens (Tex. Civ. App.) 75 S. W. 579. An instruction, in an action agalpst a railroad for the destruction of cotton by sparks al- leged to have been emitted from an engine, that the mere fact that plain- tiff's property was discovered to be on Are soon after the passage of one of the defendant's engines raised no presumption that the fire originated by sparks escaping from such engine. Alabama Great Southern R. Co. v. Sanders, 40 So. 402, 145 Ala. 449. An instruction, in an action against a railway company for a fire caused by sparks emitted from a locomotive, that the company was required to exercise the utmost care in running through a town where wooden build- ings were situated so near to the track as to be exposed to fire that might come in large and dangerous quantities from its locomotives, and especially so if at the time the wind was blowing towards the buildings, etc. Sherrill v. Ix)uisville & N. R. Co., 44 So. 153, 148 Ala. 1. An in- struction, in an action against a rail- road company for injuries resulting from a fire set by defendant's engine, that the mere fact that the fire orig- inated from sparks emitted from an engine is not suflBdent to fasten a li- ability upon the railroad company, and/ that the mere fact that a fire occurred along the line of defend- ant's road does not raise a presump- tion that it was caused by or origi- nated from defendant's engine. Bir- mingham Ry., Light & Power Co. v. Martin, 42 So. 618, 148 Ala. 8. An in- struction in an action for damages for breach of a written warranty as to the time a steel cable would wear which calls specific attention as to putting other cables in use. Metro- politan St. Ry. Co. V. Broderick & Bascom Rope Co., 137 S. W. 633, 156 Mo. App. 640. An instruction, in an action to recover wagons, obtain- ed by defendants from a third per- son, that defendant's knowledge, be- fore the purchase of the stock of such third person, that defendants owed plaintiff for the wagons, was not alone sufficient to put them on notice of fraud of such third person in ob- taining the wagons. Parlin & Oren- dorff Co. v. Glover, 118 S. W. 731, 55 Tex. Civ. App. 112. An instruction of- fered by street railroad in a personal injury action, that it could only be held liable for a defect in its right of way if the defect was such as would make its codefendant, the city, liable. Fowler v. Chicago Rys. C*)., 120 N. E. 635, 285 111. 196, affirming judgment 207 111. App. 430. An instruction, in an action for damages to a horse and buggy from a collision with a team of oxen and wagon on a public bridge, that .public bridges are for the use of oxen and drays as much as for horses and buggies. Cohn & Gold- berg Lumber Co. v. Robbing, 48 So. 853, 159 Ala. 289. An instruction, in an action for delay in delivering a telegram, sent by plaintiff's agent, that it was possible that plaintiff understood that the agent was acting for her when he went to send the message, but the evidence must show that he agreed to act as agent. West- ern Union Telegraph Co. v. Northcutt, 48 So. 553, 158 Ala. 539, 132 Am. St. Rep. 38. An instruction, in an action for delay in delivering a death tele- gram, that the jury should consider that plaintiff was one of six living §417 INSTRUCTIONS TO JURIES 744 party asking them may rely,*^ and for the further reason that they brothers, and that five of them and all four of the sisters were at the burial, in determining whether plain- tiff suffered great mental pain as a result of the absence of the sixth brother. Western Union Telegraph Co. V. Benson, 48 So. 712, 159 Ala. 254. An instruction, in an action for trespass to land by cutting timber thereon; that, if plalntifE could not read, the jury should more carefully scrutinize the transaction in which a deed to the timber to defendant was signed by her and her husband, and If a false representation was made to her as to the nature of the deed, and such representations were made with knowledge of their falsity, and plaintiff believed them to be true, the jury should find the deed was obtain- ed by fraud. Davis v. Miller Brent Lumber Co., 44 So. 639, 151 Ala. 580. An instruction, in an action for inju- ries caused by the pollution of a stream with coal dust and other for- eign matter, which by overflow of the stream were deposited on the land of a riparian owner, that the law takes into consideration the fact that the use by mining com- panies of streams will result in some impairment of the quality of the wa-- ter, and that if the use by defendant did not of itself greatly impair the quality of water the jury must find for defendant, was properly refused, as argumentative. Alabama Oonsol. Coal & Iron Co. v. Vines, 44 So. 377, 151 Ala. 898. An instruction that the will of an aged and weak-minded per- son should not be sustained, unless it appears that her property was fairly and voluntarily disposed of. Shirley V. Ezell, 60 So. 905, 180 Ala. 352. A clause in an instruction, in a will con- test on the ground of mental in- capacity and undue influence, that wills are often made in extremis, and when the bodily powers are broken and mental faculties enfeebled. Huff- man V. Graves, 92 N. B. 289, 245 111. 440. An instruction that the evidence of the attesting witnesses to the al- leged will is not entitled to any great- er weight than the evidence of other witnesses as to the testamenta-ry ca- pacity of testator. Cummings v. Mo- Donhell, 66 So. 717, 189 Ala. 96. Instmctions held not argumen- tative. A charge, in an action for wrongful death from the alleged neg- jligent operation of an automobile owned by the defendant father and driven by the defendant son, bearing on alleged negligence of son, and pointing out items of negligence pleaded on which alone suflicient evi- dence had been adduced. Johnson v. Smith, 173 N. W. 675, 143 Minn. 350. TO Ala. Burton v. State, 69 So. 913, 194 Ala. 2; Smith v. State, 69 So. 402, 13 Ala. App. 399, certiorari de- nied Ex parte Smith, 60 So. 1020, 193 Ala. 680 ; Roden v. State, 69 So. 366, 13 Ala. App. 105; Jones v. State, 69 So. 66, 193 Ala. 10; Anderson v. State (Sup.) 68 So. 56; Eagsdale v. State, 67 So. 783, 12 Ala. App. 1; James v. State, 67 So. 773, 12 Ala. App. 16 ; Maxwell v. State, &I So. 772, 12 Ala. App. 212 ; Ware v. State, 67 So. 763, 12 Ala. App. 101; Rector v. State, 66 So. 857, 11 Ala. App. 333; Wise V. State, 66 So. 128, 11 Ala. App. 72; Bryant v. State, 64 So. 333, 185 Ala. 8; Waldrop v. State, 64. So. 80, 185 Ala. 20 ; Clayton v. State, 64 So. 76, 185 Ala. 13; Mizell v. State, 63 So. lOOO, 184 Ala. !&; Brooks v. State, 62 So. 569, 8 Ala. App. 277, judgment reversed 64 So. 295, 185 Ala. 1 ; Bone v. State, 62 So., 455, 8 Ala. App. 59; Chestnut v. State, 61 So. 609, 7 Ala. App. 72; Brock v. State (App.) 61 So. 474; Gaston v. State, 60 So. 805, 179 Ala. 1 ; Black v. State, 59 So. 692, 5 Ala. App. 87; Gardner V. State, 58 So. 1001, 4 Ala. App. 131 ; Barney v. State, 57 So. 598, 5 Ala. App. 302; Savage v. State, 57 So. 469, 174 Ala. 94 ; Pope v. State, 57 So. 245, 174 Ala. 63; Fowler v. State, 54 So. 115, 170 Ala. 65; Turner v. State, 49 So. 828, 160 Ala. 40; Kirby V. State, 44 So. 38, 151 Ala. 66; Allen V. State, 42 So. 1006, 148 Ala. 588; Simmons v. State, 40 So. 660, 145 81 Bray y. Ely, 105 Ala. 553, 17 So. 180. 745 FORMAL MATTEES 417 have a tendency to lead the court to invade the province of the Ala. 61 : Jefferson v. State,, 110 Ala. 89, 20 So. 434. Ark. Mason v. State, 192 S. W. 207, 127 Aril. 289; Stevens v. State, 174 S. W. 219, 117 Ark. 64; Lee v. State, 172 S. W. 1025, 116 Ark. 588 ; Tiner v. State, 172 S. W. 1010, 115 Ark. 494 ; Taylor v. State, 169 S. W. 341, 113 Ark. 520; White v. State, 152 S. W. 163, 105 Ark. 698 ; Boiling V. State, 54 Ark. 588, 16 S. W. 058. Cal. People v. Lopez, 165 P. 722, 33 Cal. App. 530 ; People v. Converse, 153 P. 734, 28 Cal. App. 687; People V. Clayberg, 147 P. 994, 26 Cal. App. 614 ; People v. Wilson, 138 P. 971, 23 Cal. App. 513; People v. Cramley, , 138 P. 123, 23 Cal. App. 340; People V. Kawasaki, 137 P. 287, 23 Cal. App. 92; People v. Hatch, 125 P. 907, 163 Cal. 368 ; People v. Smith, 110 P. 383, 13 Cal. App. 627 ; People v. Howland, 109 P. 894, 13 Cal. App. 363 ; People v. Holden, 109 P. 495, 13 Cal. App. 354; People V. Muhly, 104 P. 466, 11 Cal. App. 129; People v. MaNamara, 94 Cal. 509, 29 P. 953. Colo. McQueary v. People, 110 P. 210, 48 Colo. 214, 21 Ann. Cas. 560. Fla. Wolf V. State, 73 So. 740; Bass V. State, 50 So. 531, 58 Fla. 1; Baldwin v. State, 35 So. 220, 46i Fla. 115. Ga. Harris v. State, 70 S. E. 952, 136 Ga; 107; Jackson v. State, 64 S. E. 653, 132 Ga. 546; Miles v. State, 93 Ga. 117, 19 S. E. 805, 44 Am. St. Rep. 140 ; Beck v. State, 76 Ga. 452 ; Haves v. State, 58 Ga. 35. Idaho. State v. Marren, 107 P. 993, 17 Idaho, 766 ; State v. Fleming, 106 P. 305, 17 Idaho, 471. 111. People V. Keating, 93 N. E. 95, 247 111. 76 ; Zuckerman v. People, 72 N. E. 741, 213 111. 114; Gent v. Peo- ple, 133 111. App. 159. Micb. People v. Jansma. 147 N. W. 600, 181 Mich. 62 ; People v. Du- pree, 141 N. W. 672, 175 Mich. 632; People V. Coulon, 114 N. W. 1013, 151 Mich. 200; People v. Hanaw, 65 N. W. 231, 107 Mich. 337. Minn. State V. Yates, 109 N. W. 1070, 99 Minn. 461. Mo. State V. Brown (App.) 193 S. W. 902; State v. Chinn, 133 S. W. 1196, 153 Mo. App. 611; State v. Fleetwood, 127 S. W. 934, 143 Mo. App. 698; State v. Sebastian, 114 S. W. 522, 215 Mo. 58. Nev. State v. Buralli, 71 P. 532, 27 Nev. 41. Okl. ' Love v. State, 150 P. 913,. 12 Okl. Cr. 1 ; Miller v. State, 131 P. 717, 9 Okl. Cr. 255, L. R. A. 1915A, 3088 ; Price v. State, 98 P. 447, 1 Okl. Cr. 358. Tenn. Cooper v. State, 138 S. W. 826. 123 Tenn. 37. Tex. Head v.- State, 175 S. W- 1062, 76 Tex. Cr. E. 496 ; Bradley v- State, 132 S. W. 484, 60 Tex. Cr. 398. Utah. State v. McCurtain, 172 p. 481, 52 Utah, 63 ; State v. Romeo, 12S P. 530, 42 Utah, 46. Va. Gottlieb v. Commonwealth,. 101 S. E. 872, 126 Va. 807. IXlnstrations of instructions held objectionable within rule. An instruction that the jury were to decide the case , upon the law 'given by the court and the evidence from the witnesses and nothing more. West V. State, 75 So. 709, 16 Ala. App. 117. An instruction containing a general dissertation on the rights of accused to life and liberty, the du- ties of jurors, and the importance of convicting the guilty, informing the jury as to the method by which they were chosen, the reason why they were impaneled, and that they wer& selected as intelligent and qualified jurors. People v. Davidson, 88 N. BL 565, 240 m. 191. An instruction that "No exact definition of an overt act can be given. It may be a motion,, a gesture, conduct or demonstration, or anything else that evidences a present design to take the life of de- fendant or to do him great bodily harm. Trifles, light as air when viewed alone, -may become fraught with deadly meaning, when viewed in connection with all the preceding facts disclosed and with all the evi- dence in the case." Griffin v. State, 50 So. 962, 165 Ala. 29. A charge, in a prosecution against an agent for embezzling two sums, made up of Items tvhieh he had failed to enter- in his cash book, one of which sums; §417 INSTRUCTIONS TO JTIRIES 746 jury in determining the weight, probative effect, and sufficiency he had paid back, that defendant was not being tried for failing to do his duty in regard to making entries in his cash book, and that, if the jury had a reasonable doubt as to whether defendant embezzled the sum he had not paid back, then they must acquit him. Willis v. State, 33 So. 226, 134 Ala. 429. A charge, in an instruction for murder, that there is no evidence of the good character ofi the de- ceased, and the jury may look to the circumstances of the cace to de- termine whether deceased was a tur- bulent and violent man. Kennedy v. State, 40 So. 658, 147 Ala. 687. A charge that the .jury were not requir- ed to find who did the shooting, unless they should be convinced beyond a reasonable doubt that defendant did it. Spraggins v. State, 85 So. 1000, 139 Ala. 93. A charge, in a prosecu- tion for homicide, that the jury are to try the case according to the law and' the evidence, and not according to their opinion as to whether public peace and good order would be pro- moted by conviction of accused. Mc- Ghee v. State, 59 So. 573, 178 Ala. 4. An instruction that the mere fact that, if any one of the witnesses said that they had not talked to any one about the evidence, it was immaterial evi- dence, and should not be considered In disregarding any witness" testimo- ny on any material point, or in dis- crediting a witness' testimony on any material point. Patton v. State, 46 So. 862, 156 Ala. 23. A charge, in a prosecution for larceny of cheese, that if accused was employed by H., and at time he put the cheese on the wagon did so under Instruction or direction of a person over him, and did so open- ly and notoriously, a strong presump- tion arises that there was no guilty intent to deprive the owner of the use thereof, which must be rebutted by strong and convincing evidence to the contrary before a conviction will be authorized. Hamilton v. State, 82 So. ^57, 17 Ala. App. 109. A charge that the character of a man Is made from his whole life, etc., that it ■ would make no difference whether accused's- sister had gone wrong be- fore she did with decedent, yet he had the right to reclaim and to con- tinue his efforts in that direction, and the jury have the right to look to all the evidence along that line in deter- mining the conduct of decedent and accused at the time decedent was kill- ed, and that accused had the right to consider the welfare of his sister, and to use all means for her good that were not in violation of law. Mon- teith V. State, 49 So. 777, 161 Ala. 18. Instructions beld not improper within rule. A charge, in a murder trial, distinguishing between the dis- eased and deranged condition of the mind rendering a person incapable of distinguishing between right and wrong, constituting insanity, which the law recognizes as a defense, and mere moral insensibility, passion, etc., which is not a defense, and caution- ing the jury to observe the dit, should be punished yet that, unless guilt is shown by testimony which comes up to the high standard pre- scribed for the trial of a crime, ac- cused should be acquitted, and that It was better that the guilty go un- punished than that the innocent, or those not shown guilty beyond a rea- sonable doubt, should be punished. Smith v. State, 51 So. 610, 165 Ala. 50. An instruction that the require- ment of belief beyond a reasonable doubt was not a fiction of law, but intended as a shield against convic- tion until that degree of proof is made which leads the jury to believe that defendant cannot reasonably be inno- cent from the evidence. Watts v. State, 59 So. 270, 177 Ala. 24. loAsplund V. Calumet & Heela Mining Co., 143 N. W. 633, 177 Mch. 529. 17 Wilkes V. State, 84 S. E. 721, 16 Ga. App. 185. isEouse V. State, 58 S. E. 416, 2 Ga. App. 184; Thomas v. State, 95 Ga. 484, 22 S. E. 315. Emphasizing testimony favora- able to state. The court may re- view the evidence, but if its charge is argumentative, emphasizing testi- mony favorable to the state, discred- iting the case and the testimony of defendant, he is not given such a tri- al as is guaranteed by the Constitu- tion and laws. State v. Almos, 142 N. W. 801, 122 Minn. 479. 755 FORMAL MATTERS § 421 A Statement of undisputed facts cannot be objected to as argu- mentative.^^ § 420. Repetition as constituting argiunent A repetition of a proposition in different instructions may be of such a character as to be. in the nature of an argument.*". How- ever, an instruction is not argumentative merely because it con- tains unnecessary repetition.*^ § 421. EiTect of argumentative instructions as ground for reversEd The giving of an argumentative charge is not ground for re- versal, unless the party complaining thereof is injured thereby,** and if an argumentative instruction asserts a correct proposition of law and one not entirely abstract, and its misleading tendencies can be remedied by an explanatory charge, it will not work a re- versal;** but if such instructions are prejudicial- to the party com- plaining of them,** or the verdict is clearly the result thereof,*^ they will be cause for reversal, and in a criminal case, where the natural effect of a charge is to operate as a powerful argument for convictiora, and to no longer leave the minds of the jury open to the convincing force of the evidence, and to that alone, a convic- tion will be set aside.*^ In Alabama it has been held that the giving or refusing of ar- gumentative instructions rests largely in the discretion of the trial court,*' and there are some decisions in this jurisdiction to the effect that the giving of an argumentative instruction which states the law correctly is not a ground of error,** but it is not appre- 19 Davis V. Michigan Cent. E. Co., per. Ct. 376. Ill N. W. 76, 147 Mich. 479. ^^ Steed v. Knowles, 97 Ala. 573, 20 Nelson v. Chicago City Ry. Co., 12 South. 75. . 163 111 App. 98 ; Chisum v. Chesnutt =* Cothran v. Moore, 1 Ala. 42b ; (Tex. Civ. App.) 36 S. W. 758. Wabasli Ry. Co. v. Perkins, 137 111. 21 Baltimore & O. S. W. R. Co. v. App. 514, judgment affirmed Perkins Walker, 84 N. E. 730, 41 Ind. App. v. Wabash R. Co., 84 N. E. 677, 233 58g 111. 458; Illinois Cent. R. Co. v. Col- 22 Ala. Baldwin v. State, 111 Ala. lison, 134 111. App. 443 ; Dazey v. 11 20 So. 528; Payne v. Crawford', Stairwalt, 123 111. App. 489. 102 -Via 387, 14 South. 854 ; Trufant == Grudzinski v. Chicago City Ry. V White, 99 Ala. 526, 13 So. 83 ; Bell Co., 165 111. App. 152. V Kendall, 93 Ala. 489, 8 So. 492; 2 6 Commonwealth v. Garvey, 65 Pa. Waxelbaum v. Bell, 91 Ala. 331, 8 So. Super. Ct. 56. cv « ,., o. i ,^ 5Y1 2 7Whaley v. Sloss-ShefBeld Steel & Ga. August V. State, 76 S. E. 164, Iron Co., 51 So. 419, 164 Ala. 216, 20 11 Ga App 798 Ann. Cas. 822 ; Karr v. State, 106 ni.' Collins ice Cream Co. v. Ste- Ala. 1, 17 South. 328. phens, 59 N. B. 524, 189 111. 200. " Council v. Mayhew, 55 So. 314, Neb. Carleton v. State, 43 Neb. 172 Ala. 295 ; Thompson v. State, 373 81 N. W. 699. 26 So. 141, 122 Ala. 12 ; Coghill v. Pa. Thrall v. Wilson, 17 Pa. Su- Kennedy, 24 So. 459, 119 Ala. 641. § 422 INSTRUCTIONS TO JURIES 756 hended that this court would refuse to reverse on the ground of such an instruction, shown to be harmful to an appellant. H. Confused or Misleading Instructions § 422. "General rule. It is proper to refuse instructions calculated to mislead or con- fuse the jury,*^ and the giving of such instructions constitutes 28 U. S. (O. C. A. Colo.) Union Pac. Ey. Co. v. O'Biien, 49 Fed. 538, 1 C. 0. A. 354 ; (C. C. A. Mo.) Blanton V. United' States, 213 F. 320, 130 C. O. A. 22, Ann. Cas. 1914D, 1238 ; (0. O. A. Pa.) Weiss v. Betblehem Iron Co., 88 F. 23, 31 O. C. A. 363; (C. O. A. Va.) Pulaslci Mining Co. v. Hagan, 396 F. 724, 116 C. 0. A. 352. Ala. Birmingham Ey., light & Power Co. v. Milbrat, 78 So. 224, 201 Ala. 368 ; Johnson v. Johnson, 77 So. 335, 201 Ala. 41, 6 A. L. E. 1031; Louisville & N. E. Co. v. Martin, 73 So. 909, 198 Ala. 540 ; Miller v. State, 72 So. 506, 15 Ala. App. 4 ; Spinks v. State, 71 So. 623, 14 Ala. App. 75; White V. State, 71 So. 452, ,195 Ala. 681 ; Burton v. State, 69 So. 913, 194 Ala. 2; Moon v. Benton, 68 So. 58», 13 Ala. App. 473; Portner v. State, 67 So. 720, 12 Ala. App. 179; John- son V. Colvin, 65 So. 328, 186 Ala. 538; Hale v. State, 64 So. 530,' 10 Ala. App. 22 ; Birmingham Ey., Light & Power Co. v. Long, 59 So. 382, 5 Ala. App. 510; Faulk v. State, 59 So. 225, 4 Ala. Appi 177; Bailey v. State, ' 53 So. 296, 390, 168 Ala. 4 ; Ijouisville & N. R. Co. v. Johnson, 50 So. 300, 162 Ala. 665; Penry v. Do- zier, 49 So. 909, 161 Ala. 292; Hays V. State, 46 So. 471, 155 Ala. 40; Sim- mons V. State, 40 So. 660, 145 Ala. 61; Nordan v. State, 39 So. 406, 148 Ala. 13; Pitts v. State, 37 So. 101, 340 Ala. 70; Vaughn v. State, 30 So. 669, 130 Ala. 18; Southern Ey. Co. V. Lynn, 29 So. 573, 128 Ala. 297; Ragland v. State, 27 So. 983, 125 Ala. 12; Lafayette Ey. Co. v. Tucker, 27 So. 447, 124 Ala. 514; Morris v. State, 27 So. 336, 124 Ala. 44; Bomar v. Eosser, 26 So. 510, 123 Ala. 641 ; Me- Leroy v. State, 25 So. 247, 120 Ala. 274; Louisville & N. E. Co. v. Cow- herd, 23 So. 793, 120 Ala. 51 ; SulUvan v. State, 23 So. 678, 117 Ala. 214; Hooper v. State, 106 Ala. 41, 17 So. 679 ; Wills V. State, 74 Ala. 21 ; CUf- ton V. State, 73 Ala. 473; Wills v. State, 73 Ala. 362; Woodbury v. State. 69 Ala. 242, 44 Am. Eep. 515; Botson V. State, 62 Ala. 141, 34 Am. Rep. 2 ; Adams v. State, 52 Ala. 379 ; Clark V. State, 49 Ala. 37; Salomon V. State, 28 Ala. 83 ; Swallow v. State, 22 Ala. 20. Cal. People v. Cox, 155 P. 1010, 29 Cal. App. 419 ; Arbunich v. United Eailroads of San Francisco, 152 P. 51, 28 Cal. App. 291; Bstrella Vine- yard Co. V. Butler, 57 P. 980, 125 Cal. 232; People v. Strange, 61 Cal. 496; People V. Best, 39 Cal. 690; People V. Maxwell, 24 Cal. 14; People v. Hobson, 17 Cal. 424. na. Bass v. State, 50 So. 531, 58 Fla. 1 ; Minor v. State, 43 So. 816, 55 Fla. 71; Jacksonville Electric Co. v. Sloan, 42 So. 516, 52 Fla. 257; Jack- sonville Electric Co. v. Adams, 39 So. 183, 50 Fla. 429, 7 Ann. Cas. 241. 111. Illinois, I. & M. Ry. Co. v. Freeman, 71 N. E. 444, 210 111. 270; Eggmann v. Nutter, 169 111. App. 116 ; Chicago City Ey. Co. v. Phillips, 138 111. App. 438 ; Illinois Cent. R. Co. v. Becker, 119 111. App. 221; Zipkie v. City of Chicago, 117 111. App. 418; Baxter v. People, 8 111. (3 Oilman) 368. Ind. American Motor Car Oo. v. Robbing, 103 N. E. 641, 181 Ind. 417 ; Dean v. State, 130 Ind. 237, 29 N. E. 911. Iowa. State V. Fleming, 86 Iowa, 294, 53 N. W. 234. Kan. State v. Arch, 157 P. 1198, 98 Kan. 404. Md, Rosman v. Travelers' Ins. Co. of Hartford, Conn., 96 A. 875, 127 Md. 689, Ann. Cas. 19180, 1047. 757 FORMAL MATTERS §422 error,*" which will work a reversal,*^ in the absence of a showing that the jury were not misled thereby.** An error in giving con- Mass. Dixon V. New England R. Co., 1T9 Mass. 242, 60 N. E. 581. Mich. Holland v. Rea, 12 N. W. 167, 48 Mich. 218 ; Kelirig v. Peters, 41 Mich. 475, 2 N. W. 801; Schoen- berg V. Voigt, 36 Mich. 310 ; McKerch- er V. Curtis, 35 Mich. 478. Minn. Pearson v. United States Fidelity & Guaranty Co., 164 N. W. 919, 138 Minn. 240; Fransen v. Falk Paper Co., 160 N. W. 789, 135 Minn. 284; Nichols v. Atwood, 149 N. W. 672, 127 Minn. 425; Shartle v. City of Minneapolis, 17 Minn. 308 (GU. 284). Mo. Martin v. Wiglesworth (App.) 193 S. W. 906; ScQtt v. Boeekeler Lumber Co. (App.) 186 S. W. 1104; Knapp V. BTanley, 132 S. W. 747, 153 Mo. App. 169; Price v. Town of Breckenridge, 92 Mo. 378, 5 S. W. 20 ; State V. Ott, 49 Mo. 326; Deere v. Plant, 42 Mo. 60; Kaw Brick Co. v. Hogsett, 82 Mo. App. 546; Sharp v. Sturgeon, 75 Mo. App. 651; Wood v. White, 6 Mo. App. 592, memorandum ; Carlln v. Russell, 5 Mo. App. 583, memorandum. Mont. State v. Postal Telegraph Cable Co., 161 P. 953, 53 Mont. 104. Nev. Colquhoun v. Wells, Fargo & Co., 21 Nev. 459, 33 P. 977. Ohio. Adams v. State, 29 Ohio St. 412; Callahan v. State, 21 Ohio St. 306. Okl. Frisco Lumber Co. v. Splvey, 140 P. 157, 40 Okl. 633 ; Friedman v. Weisz, 58 P. 613, 8 Okl. 392. Pa. Commonwealth v. De Leo, 89 A. 584. 242 Pa. 510. S. C. Knobeloch v. Germania Sav. Bank, 27 S. E. 962, 50 S. C. 259. Utah. P. A. Sorensen Co. v. Den- ver & R. G. R. Co., 164 P. 1020. Va. McCoy v. Norfolk & C. R. Co., 37 S. B. 788, 99 Va. 132 ; Levasser v. Washburn, 11 Grat. 572. Wash. Johansen v. Pioneer Min- ing Co., 137 P. 1019, 77 Wash. 421; Hanstad v. Canadian Pac. Ry. Co., 87 P. 832, 44 Wash. 505. W. Va. Bartley v. Western Mary- land Ry. Co., 95 S. B. 443, 81 W. Va. 795 ; Brogan v. Union Traction Co., 86 S. E. 753, 76 W. Va. 698 ; Laraway v. Croft Lumber Co., 84 S. E. 333, 75 W. Va. 510 ; Walker v. Strosnider, 67 S. E. 1087, 67 W. Va. 39, 21 Ann. Cas. 1 ; Stewart v. Doak, 52 S. E. 95, 58 W. Va. 172; State y. Greer, 22 W. Va. 800; Wheeling Gas Co. v. City of Wheeling, 8 W. Va. 320; Henry v. Davis, 7 W. Va. 715. Wis. Weidner v. Standard Life & Accident Ins. Co., 113 N. W. 50, 132 Wis. 624; Odegard v. North Wiscon- sin Lumber Co., 110 N. W. 809, 130 Wis. 659. Instructions held misleading within rnle. Where defendant, on prosecution for aggravated assault, pleads a former conviction of fighting in a public glace, an instruction that, unless the jury believe that the offense charged In the case before them is the same offense charged in the former case, the plea of former conviction can- 3 See note 30 on page 758. 31111. Hanecy v. McLaughlin, 159 111. App. 408. Ky. American Book Co. v. Archer, 186 S. W. 672, 170 Ky. 744; Illinois Cent R. Co. v. Tandy, 107 S. W. 715, 32 Ky. Law Rep. 962. Mich. Dodge v. Brown, 22 Mich. 446. Mo. Klamp v. Bode wall, 19 Mo. 449. Neb. Mutual Hail Ins. Co. of Wis- consin V. Wilde, 8 Neb. 427, 1 N. W. 384. Ohio. Washington Mut Ins. Co. v. Merchants' & Manufacturers' Mut. Ins. Co., 5 Ohio St. 450. Pa. Renn v. Tallman, 25 Pa. Su- per. Ct. 503 ; Stuart v. Line, 11 Pa. Super. Ct. 345. Tex. Kalamazoo Nat. Bank v, Sides (Civ. App.) 28 S. W. 918. Va. Gordon v. City of Richmond, 83 Va. 436, 2 S. B. 727; Ragland v. Butler, 18 Grat 323. Conflicting evidence. Where the evidence is conflicting, a misleading charge will not be held harmless. Pinks V. Cox (Tex. Civ. App.) 30 S. W. 512. 32 Furgeson v. Brown, 1 Mo. App. Rep'r 458; Gulf, C. & S. F, Ry. Co. V. Greenlee, 62 Tex. 344; Hudson v. Morriss, 55 Tex. 595.' § 422 INSTRUCTIONS TO JTJIIIBS 758 fusing and misleading instructions is not cured by the fact th^t their general tenor is unduly favorable to the complaining party.** not avail, is misleading. Lawson v. State (Tex. Cr. App.) 32 S. W. 895. A charge authorizing the jury to con- vict without regard to the evidence as to venue, or as to vyhen the offense was committed. Shacklef ord v.' State, 79 Ala. 26. An instruction that if an offense is committed on the boundary of two counties, or if it is uncertain where the boundary Is, a conviction could be had in either county, is mis- leading, when there is no proof that the offense was committed on such boundary, or that the location thereof was uncertain, and the only uncer- tainty was as to the place where the offense was committed. Jones v. State, 54 Ark. 371, 15 S. W. 1026. An instruction that "no circumstance in- troduced in evidence can be used by you as a basis for any inference of guilt against the defendants unless such circumstance is first proven to your entire satisfaction; and every circumstance in the case which is not proven to your entire satisfaction should be wholly dismissed from your consideration, and must not be per- mitted to influence you to any extent against the defendants. Any circum- stance which is essential to a conclu- sion of guilt against the defendants should be established beyond all rea- sonable doubt, and to a moral certain- ty, before it can be used by the jury against the defendants"- — is mislead- ing, since it would be probably be un- derstood to mean that guilt must be proved beyond the possibility of a doubt. Gindrat v. People, 138 111. 103, 27 N. E. 1085. A charge that "all evidence is more or less circumstan- tial, the difference being in the degree, and it is sufficient for the purpose when It excludes disbelief, that Is, actual and not technical disbelief; for he who is to pass on the question is not at liberty to disbelieve as a juror, while he believes as a man." State v. Pratt, 20 Iowa, 267. A charge in a criminal prosecution that, "while the law seeks to punish the guilty, and to check crime, It never attempts to check crime by pun- ishing the innocent, or even the rea- sonably doubtful innocent." Shelby v. State, 97 Ala. 87, 11 So. 727. An instruction that it is not for the jury to say whether defendant did wrong or not ; that they are only to consider the wrong charged in the indictment. Dryman v. State, 102 Ala. 130, 15 So. 433. A charge that the jury has no right to pardon any one, for any of- fense whatever, and, if you are satis- fied, beyond a reasonable doubt, that the defendant is guilty in manner and form as charged in the indictment, then it would be a gross violation of your duty as sworn jurors to acquit him through sympathy or a spirit of condonation of liis offense, nor have you any right to disregard any testi- mony tending to establish any fact in controversy in this case, it being your duty to consider all the evidence, fair- ly and impartially, with the view of ascertaining the real truth." Smith V. State, 55 Ark. 259, 18 S. W. 237. An instruction that "proof of con- tradictory statements or declarations on material points made by a witness may be sufficient to raise a reasonable doubt in the minds of the jury." Washington v. State, 58 Ala. 355. A charge, in a prosecution of a person for wrecking a train, "that in deter- mining their verdict they are not cir- cumscribed nor confined to the testi- mony of witnesses, but that they can consider all the circumstances sur- rounding the case, and that it is not necessary to prove the actual facts of the conspiracy to wreck a train, but that it may be collected from collat- eral circumstances, if any, which may in evidence." Nail v. State, 70 Miss. 32, 11 So. 793. A charge, on an indict- ment for murder, that if any reason- able doubt exist in the minds of the jury as to the credibility of any wit- ness, they must give the benefit of the doubt to the prisoner. Shipp v. Com- monwealth, 86 Va. 746, 10 S. E. 1065. so Ala. Citizens' Light, Heat & Power Co. v. Lee, 62 So. 199, 182 Ala. S3 Chicago,' B. & Q. R. Co. v. An- derson, 38 Neb. 112, 56 N. W. 794. 759 FORMAL MATTERS §423 § 423. Specific applications of rule An instruction which is correct as an abstract proposition of law may be misleading in view of the evidence, and properly re- 561 ; Southern Ry. Co. v. Hobson, 58 So. 751, 4 Ala. App. 408. Ark. Bates v. Ford, 162 S. W. 1007, 110 Ark. 567. Cal. Thompson v. Los Angeles & S. D. B. Ry. Co., 134 P. 709, 165 Cal. 748. Colo. Trimble v. Collins, 172 P. 421, 64 Colo. 464. Ga. Seaboard Air Line Ry. v. Ar- rant, 87 S. E. 714, 17 Ga. App. 489; Hilton V. Sylvania & G. R. Co., 68 S. E. 746, 8 Ga. App. 10; Nelson v. Spence, 58 S. E. 697, 129 Ga. 35. 111. Douvia V. City of Ottawa, 200 111. App. 131 ; "Weltz v. Connell, 196 111. App. 211; Hostettler v. Mush- rush, 194 111. App. 58 ; Howell v. Em- pire State Surety Co., 183 lU. App. 220; Driza v. Jones & Adams Coal Co., 171 111. App. 139; Dickey v. Ghere, 163 111. App. 641 ; Stufflebeam V. Jewell, 155 111. App. 108. Ind. Bump v. McGrannahan, 111 N. E. 640, 61 Ind. App. 136 ; Vanda- lia Coal Co. v. Coakley (App.) 108 N. E. 382; Shilling v. Braniff, 58 N. E. 855, 25 Ind. App. 676. Iowa. Merchants' Transfer & Stor- age Co. V. dhicago, R. I. & P. Ry. Co., 150 N. "W. 720, 170 Iowa, 378. Ky. Cincinnati, N. O. & T. P. Ry. Co. V. McElroy, 142 S. W. 1009, 146 Ky. 668; Dorsey v. Commonwealth, 17 S. W. 183 ; Louisville & N. R. Co. V. Logan, 9 Ky. Law Rep. (abstract) 893 Md. Doggett V. Tatham, 81 A. 376, 116 Md. 147. Mo. Bean v. Lucht, 145 S. W. 1171, 165 Mo. App. 173; State v. Owsley, 111 Mo. 450, 20 S. W. 194; Wheeler v. Chestnut, 69 S. W. 621, 95 Mo. App. 546. Neb. Eaulkner v. Gilbert, 86 N. W. 1074, 62 Neb. 126, denying rehearing 85 N. W. 843, 61 Neb. 602. N. Y. Gourd V. Healy, 150 N. Y. S. 1006, 165 App. Div. 288 ; Dale v. In- terborough Rapid Transit Co. (Sup.) 131 N. Y. S. 590. N. C. Morton v. Washington Light & Water Co., 86 S. E. 294, 169 N. C. 468; Bragaw v. Supreme Lodge, 32 S. E. 544, 124 N. C. 154. Pa. Pennsylvania R. Co. v. Berry, 68 Pa. (18 P. F. Smith) 272. S. C. Gillian v. Southern Ry. Co., 93 S. E. 865, 108 S. C. 195 ; Cathcart v. Matthews, 89 S. E. 1021, 105 S. C. 329. Tex. Missouri, K. & T. Ry. Co. of Texas v. Robertson (Civ. App.) 189 S. W. 284; Kansas City, M. & O. Ry. Co. of Texas v. Hall (Civ. App.) l52 S. W. 445 ; Power State Bank v. Carver (Civ. App.) 148 S. W. 341 ; Hazard v. Western Commercial Travelers' Ass'n, 116 S. W. 625, 54 Tex. Civ. App. 110; Champion v. Johnson County (Civ. App.) 109 S. W. 1146; St. Louis Southwestern By. Co. of Texas v. Groves, 97 S. W. 1084, 44 Tex. Civ. App. 63; Magee v. Oklahoma City & T. R. Co. (Civ. App.) 95 S. W. 1092; Patterson v. State (Cr. App.) 60 S. W. 557. Va. Pocahontas Consol. Collieries Co. V. Hairston, 83 S. E. 1041, 117 Va. 118 ; Whealton & Wisherd v. Dough- ty, 82 S. B. 94, 116 Va. 566 ; Kinche- loe V. Tracewells, 11 Grat. 587. 'Wash, Revilla Fish Products Co. V. American-Hawaiian S. S. Co., 137 P. 337, 77 Wash. 49. ■W. Va. State v. Davis, 51 S. B. 230, 58 W. Va. 94; Parrish v. City of Huntington, 50 S. E. 416, 57 W. Va. 286; State v. Sutfln, 22 W. Va. 771 ; State V. Robinson, 20 W. Va. 713, 43 Am. Rep. 799 ; State v. Cain, 20 W. Va. 679. Wis. J. H. Clark Co. v. Rice, 106 N. W. 231, 127 Wis. 451, 7 Ann. Cas. 505 ; Sullivan v. Collins, 83 N. W. 310, 107 Wis. 291; Buel v. State, 80 N. W. 78, 104 Wis. 132. niustrations of instructions ob- jectionable ivithin rule. An in- struction referring to a certain con- tingency, but not stating the nature of the contingency, and unintelligible for want of such explanation. Gam- brill V. Schooley, 52 A. 500, 95 Md. 260, 63 L. R. A. 427. In a prosecu- tion for assault with intent to ravish, requested instructions charging jury §423 INSTRUCTIONS TO JURIES 760 fused for that reason.^* After a proper instruction has been given, it is error to give another instruction which modifies it or ob- that if they believed the evidence they must "acquit" defendant of an assault v^ith intent to ravish, in place of instructing them that they could not find him guilty of that Offense, was misleading, as it was liable to im- press the jury that, being acquitted, he could not be found guilty of as- sault. Pitman v. State, 42 So. 993, 148 Ala. 612. An instruction that the burden of showing that a sectional line was not a straight line was upon the party claiming that fact, and, if the evidence as to the line being straight or otherwise was of equal weight, then the presumption that it was straight would not be overthrown. North v. Jones, 100 N. E. 84, 53 Ind. App. 208. An instruction confusing two distinct rules as to damages. Louisville & N. R. Co. v. Hughes, 84 S. B. 451, 143 Ga. 206. Instruction that burden of proof was on plaintifE to prove case by preponderance of evi- dence, and on defendants to prove de- fense by preponderance of evidence. Quanah, A.' & P. Ry. Co. v. Novit (Tex. Civ. App.) 199 S. W. 496. A charge that, if the jury was unable to harmonize the testimony of plaintiff and defendant and was unable to say who was telling the truth as to the contract in controversy, they should not find for plaintiff. Johnston Bros. Co. V. BenUey, 56 So. 742, 2 Ala. App. 281. An instruction that the jury, in determining the cause of an injury, might "look to the size and shape of the evidence of injury on the plain- tifE's shoulder." Southern Bell Tele- phone & Telegraph Co. v. Mayo, 33 So. 16, 134 Ala. 641. An instruction, which required the jury to determine what the negligence charged in the complaint was. Western Union Tele- graph Co. V. Northcutt, 48 So. 553, 158 Ala. 539, 132 Am. St. Rep. 38. An instruction that the burden was on defendant to prove the defense of payment for services, and if defend- ant had failed to so prove to the rea- sonable satisfaction of the Jury they should not find against plaintiff on that account. Cole v. Waters, 147 S. W. 552, 164 Mo. App. 567. An instruc- tion, in an action on a contract where- by defendant guaranteed the payment to plaintifE of an indebtedness of a decedent, that if plaintiff accepted a certain sum of money in settlement of his claim "by and without the con- sent of the defendant," this oper- ates to discharge said M. as guar- antor. Marx v. Ely, 41 So. 411, 148 Ala. 659. A charge, in a prosecu- tion for keeping a saloon open and selling intoxicating liquors on Sun- day, that if accused kept open his saloon and sold intoxicating liq- uors at any time prior to midnight on the day immediately preceding the Sunday in question, he should be ac- quitted, was misleading and confus- ing, since i<; in effect told the jury that even though accused kept his saloon open and sold liquors between midnight on Saturday and six o'clock of the following Monday morning he should be acquitted if at any time prior to midnight of Saturday he also 8* Ala. Lawson v. State, 46 So. 259, 155 Ala. 44. Cal. People v. Arnold, 127 P. 1060, 20 Cal. App. 35. Ga. Hagood V. State, 62 S. B. 641, 5 Ga. App. 80; Holland v. State, 60 S. E. 205, 3 6a. App. 465. 111. Lindberg v. Chicago City Ry. Co., 83 111. App. 433. Iowa. Gray v. Chicago, Ri I. & P. Ry. Co., 139 N. W. 934, 160 Iowa, 1. Kan. State v. Ingram, 16 Kan. 14. Me. Gilmore v. McNeil, 45 Me. 599. Md. Baltimore & O. R. Co. v. Boyd, 67 Md. 32, 10 A. 315, 1 Am. St. Rep. 362. Nev. Zelavin v. Tonopah Belmont Development Co., 149 P. 188, 39 Nev. 1. N. Y. Hills V. Interborough Rapid Transit Co., 163 N. Y. S. 1010, 176 App. Div. 754. In Alabama, however, it is not re- versible error to give a charge that states a true proposition of law, which, as applied to the facts, might be mis- leading, where the party objecting thereto offers no explanatory charge. Forst V. Leonard, 22 So. 481, 116 Ala. 82. 761 FORMAL MATTERS §423 scures its meaning.*^ An instruction may be so verbose as to be misleading.** In a criminal prosecution an instruction containing several defi- nitions of the crime charged against the defendant is erroneous, because confusing.*'' An instruction submitting an undisputed fact to the jury may be erroneous, and cause for reversal, as caus- ing the jury to doubt the existence of such fact.** The court kept it open and sold liquors. O'Gra- dy V. People, 95 P. 346, 42 Colo. 312. An instruction that one who owns property along the railroad must • kiow that trains are expected to run with regularity, and if there are spe- cial risks from no want of care in the proper equipment of the trains, those risks are incident to the situa- tion, and the extra care they demand devolves upon the other party, and the consequence of not exercising it must fall on him because the railroad is not in fault. Florida Bast Coast Ey. Co. V. Welch, 44 So. 250, 53 Fla. 145, 12 Ann. Cas. 210. Illustrations of instrnctions Iield not misleading. An instruction, in an action for breach of contract to thresh a crop of rice, that if the jury believed that there was no contract of threshing, as alleged in the peti- tion, or if plaintiEE's damage was caused by his neglect, or the crop was not properly cut, bound, and shocked, and the water was not suffi- ciently drained ofE the land, etc., the verdict must be for defendants. Kerr V. Blair, 105 S. W. 548, 47 Tex. Civ. App. 406. The use of the words "evi- dence" and "testimony" in instruc- tions without regard to technical dif- ference in meaning. Scherrer v. City of Seattle, 100 P. 144, 52 Wash. 4. An instruction that, when a man and wife contract to sell their homestead, the wife may up to the last moment before her privy acknowledgment is completed retract and thereby defeat the sale. London v. Crow, 102 S. W. 177, 46 Tex. Civ. App. 190. An in- struction that the jury should find there was no contributory negligence if there was no evidence thereon or it was evenly balanced, and, if there was no evidence of a balance or a pre- ponderance against negligence of de- fendant, they should find him not guilty of negligence. Wellington v. Reynolds, 97 N. E. 155, 177 Ind. 49. Instructions, in an action to recover an advance payment on a purchase of seed corn, that the purchaser could not recover without an express war- ranty, and that, if the corn was sold without an express warranty, and was reasonably fit for seed com, de- fendant might recover on his counter- claim. Totten V. Stevenson, 135 N. W. 715, 29 S. D. 71. An instruction that, when the jury "have reached a conviction under the evidence" and the law, they must write it in their verdict. The use of the word "convic- tion," taken in connection with the context, could not have misled the jury to believe that the court had reference to the conviction of accused, rather than to the conviction in their own minds. Flannlgan v. State, 79 S. E. 745, 13 Ga. App. 663. 35 Ward V. Brown, 44 S. E. 488, 53 W. Va. 227. S6 Idaho. Thatcher v. Quirk, 4 Idaho, 267, 38 P. 652. 111., Scott V. Parlin & Orendorff Co., 146 111. App. 92 ; Adams v. Smith, 58 111. 417. Ind. Jeffersonville Mfg. Co. v. Holden, 102 N. E. 21, 180 Ind. 301. Mo. Stld v. Missouri Pac. Ry. Co., 139 S. W. 172, 236 Mo. 382; Williams V. Ranson, 186 S. W. 349, 234 Mo. 55. Okl. Friedman v. Weisz, 58 P. 613, 8 Okl. 392. 3 7 People V. Monahan, 59 Gal. 389. 88 Seaboard Air Line Ry. Co. v. Hess, 74 So. 500, 73 Fla. 494. Harmless error. That a clause in a charge, used simply, as an hypoth- esis for submitting the main issue in the case, submitted an undisputed fact cannot be held to be misleading as causing the jury to ' doubt such fact, when its existence was shown beyond the shadow of a doubt by positive and undisputed evidence, making it impossible for the jury to § 423 INSTRUCTIONS TO JURIES 762 should not use the facts of another case as an illustration in its charge, since a slight variance in the facts might mislead the jury.** An instruction using a word in different senses,** or an instruc- tion susceptible of two constructions, one of which is calculated to confuse and mislead the jury,*i is erroneous and may be re- fused,*'' although where an instruction is given in a certain sense- and acted upon by the jury in the sense intended, and is otherwise correct, judgment will not be reversed because the language used, strictly construed, might have a different meaning.** An instruc- tion that if the jury do not believe the evidence they should find the defendant not guilty is obscure and properly refused.** § 424. Limitations of rule Under the above rule instructions need not be the most simple and direct that can be given in the case. If they are such as may be readily understood, and are not misleading to the ordinary mind, they are sufHcient,*^ and an instruction which correctly states a pertinent rule of law should not be refused, because the language used is not the most precise and elegant English, if it is not mis- leading to an intelligent jury.** Ambiguity or lack of clearness in an instruction will not be cause for reversal, if it is apparent that the jury were not misled,*'' or, if there is no good reason to suppose that the jury did not un- derstand the meaning intended to be conveyed.** While the in- advertent use of a wrong word or the inadvertent omission of a word may render an instruction misleading and constitute reversi- believe the contrary. Kelsey v. Col- child until "cured" is not erroneous, lins, 108 S. W. 793, 49 Tex. Civ. App. because, her limb having been ampu- 230. tated, defendant claims she would so State V. Tapp, 89 S. E. 394, 105 never be cured, as "cured" means the S. C. 55. act of healing, to heal a vrounded limb, 10 Neff v. City of Cameron, 111 S. and the jury could not have construed W. 1139, 213 Mo. 350, 18 L. R. A. (N. it as contended. Ft. Worth & D. C. S.) 320, 127 Am. St. Rep. 606. Ry. Co. v. Wininger (Tex. Civ. App.) 41 Virginia Cent. R. Co. v. Sanger, 159 S. W. 881. 15 Grat. (Va.) 230; White v. Sohn, «* Leonard v. State, 43 So. 214, 150 59 S. E. 890, 63 W. Va. 80. Ala. 89. 42 Rolston V. Langdon, 26 Ala. 660; *» Carson v. Old Nat. Bank, 79 P. Wheeling Gas Co. v. City of Wheel- 927, 37 Wash. 279. Ing, 8 W. Va. 320. *« Tiggerman v. City of Butte, 119 43 ParMiurst v. Masteller, 57 Iowa, P. 477, 44 Mont. 138. 474, 10 N. W. 864. 47 Hoitt v. Holcemb, 32 N. H. 185. Doable meaning of "cured." An 48 Lackawanna & B. R. Co. v. Che- instruction allowing compensation for newith, 52 Pa. (2 P. F. Smith) 382, nursing and attention to plaintiff's 91 Am. Dec. 168. 763 FORMAL MATTERS §424 ble error,*** this will not necessarily be so,'* as where the word "de- fendant" is used for "pjaintiff," or vice versa.^^ The use of a word in an instruction cannot be objected to as am- biguous or misleading, if it is used in connection with a word which makes its meaning definite and certain,^^ and the granting of a special instruction which is too technical and apt to mislead the jury is not reversible error, if the court in its charge correctly instructs , the jury on the subject of the special request and re- moves any ambiguity.^* If instructions taken separately are prop- er, a contention that when taken together they have a tendency to mislead is not tenable.^* In determining whether an instruction is misleading, the plead- ings and the evidence should be considered,''* and the court will credit the jury with common discernment and common sense.^ Whether an instruction is misleading depends, not on the mean- ing which the ingenuity of counsel can, at leisure, wrest from it, but on how and in what sense, under the evidence and the circum- stances of the trial, ordinary men would undesrtand it,*' and a con- tention that an instruction is misleading may be untenable, in view of the findings of fact of the jury showing that they were not misled.** In some jurisdictions a judgment will not be reversed 4B Markley v. Western Union Tele- graph Co., 132 N. W. 37, 151 Iowa, 612 ; Galveston Land & Improvement Co. V. Levy, 30 S. W. 504, 10 Tex. Civ. App. 104. 5 St. Louis, I. M. & S. Ry. Co. v. Day, 110 S. W. 220, 86 Ark. 104; Lake Erie & W. B. Co. v. Hobbs, 81 N. E. 90, 40 Ind. App. 511; Lee v. Wild Rice Lumber Co., 112 N. W. 887, 102 Minn. 74; Texas & P. Ry. Co. v. Jolinson, 106 S. W. 773, 48 Tex. Civ. App. 135. 61 Benton v. Harley, 94 S. E. 46, 21 Ga. App. 168 ; Magowan v. Kentucky Utilities Co., 200 S. W. 367, 179 Ky. 114; Campbell v, Springfield Trac- tion Co., 163 S. W. 287, 178 Mo. App. 520. 5 2 Harris v. Welch, 70 Iowa, 80, 29 N. W. 811. 53 CDwyer v. Northern Market Co., 30 App. D. C. 244. 5 4 People v. Scarbak, 92 N. E. 286, 245 111. 435. Compare Galveston, H. & g. A. Ry. Co. V. Eaten (Tex, Civ. App.) 44 S. W. 562. 5 5 Aldrich Mining Co. v. Pearce, 68 So. 900, 192 Ala. 195 ; Bowles v. Low- ery, 62 So. 107, 181 Ala. 603 ; Georgia Southern & F. Ey. Co. v. Hamilton Lumber Co., 58 So. 838, 63 Fla. 150. 6 6 Chicago & G. T. Ry. Co. v. Smith, 124 111. App. 627; Chicago City Ry. Co. V. Same, 124 111. App. 627, judg- ment affirmed 80 N. B. 716, 226 lU. 178. Instructions framed in techni- cal language. The appellate court will not reverse on the ground that a charge, though correct in law, is so framed as ■ not to be readily under- stood except by a lawyer, when there is reason to believe that a jury of average intelligence would not be mis- led thereby, and it appears that no request to present the issues more fully was made by counsel in the court below. Blum v. Stein, 68 Tex. 608, 5 S. W. 454. 67 Young V. City of Fairfield, 173 111. App. 311; Eckels v. Cooper, 136 111. App. 60; Bickel v. Martin, 115 111. App. 367. 6 8 Citizens' St. Ry. Co. v. Merl, 59 N. E. 491, 26 Ind. App. 284. §425 INSTRUCTIONS TO JURIES 764 merely upon the ground that an instruction is calculated to mis- lead the jury, when the party aggrieved fails to ask to have the same modified, or an additional instruction given. ^® § 425. Misstatements of evidence A misstatement by the trial judge with respect to the evidence bearing on a material fact introduced on behalf of either party, whether such misstatement is as to the quality or character of the evidence or as to the facts testified to, constitutes error,^* which may be ground for reversal,®^ as being unfair and mislead- ing,*^ and a request for an instruction involving the danger of a misstatement of the evidence may properly be refused.** Such a 6 9 U. S. Baltimore & P. E. Co. v. Mackey, 157 U. g. 72, 15 Sup. Ct. 491, 39 L. Ed. 624; (C. O. Mass.) Locke V. United States, Fed. Cas. No. 8,442, 2 Cliff. 574. Ala. Evans v. State, 82 So. 625, 17 Ala. App. 141 ; Johnson v. Louis- ville & N. R. Co., 82 So. 100, 203 Ala. 86; National Supply Co. v. J. T. Home Veneer 'Co., 81 So. 856, 17 Ala. App. 78 ; Empire Clothing Co. v. Ham- mons, 81 So. 838, 17 Ala. App. 60 ; Ex- parte Hill, 69 So. 598, 194 Ala. 559, denying certiorari City of Tuscaloosa V. HiU, 69 So. 486, 14 Ala. App. 541 ; Reeves v. State, 68 So. 569, 13 Ala. App. 1 ; Loeh v. City of Montgomery, 61 So. 642, 7 Ala. App. 325; George F. Craig & Co. v. Pierson Lumber Co., 53 So. 803, 169 Ala. 548 ; Millender v. State, 46 So. 756, 155 Ala. 17 ; Hen- ingburg v. State, 45 So. 246, 153 Ala. 13; Chandler v. Jost, 96 Ala. 596, 11 So. 636; Wilhoyte v. Udell, 9 So. 550, 93 Ala. 302 ; Waxelbaum v. Bell, 91 Ala. 331, 8 So. 571; Birmingham Fire Brick Works v. Allen, 86 Ala. 185, 5 So. 454; Callan v. McDaniel, 72 Ala. 96; Whilden v. Merchants' & Planters' Nat. Bank, 64 Ala. 1, 38 Am. Rep. 1 ; Durr v. Jackson, 59 Ala. 203; Smith v. Fellows, 58 Ala. 467; Hart v. Bray, 50 Ala. 446 ; Abraham V. Nunn, 42 Ala. 51 ; Sharp v. Bums, 35 Ala. 653; Partridge v. Forsyth, 29 Ala. 200 ; Kenan v. Holloway, 16 Ala. 53, 50 Am. Dec. 162 ; Casky v. Havi- land, 13 Ala. 314 ; Boriim v. Garland, 9 Ala. 452. Ga. Ellis V. Smith, 10 Ga. 253. Ind, Hallock V. Iglehart, 30 Ind. 327. 111. Warner v. Dunnavan, 23 111. 380. Minn. McCormick v. Louden, 64 Minn. 509, 67 N. W. 366. N. Y, Springsteed v. Lawson, 14 Abb. Prac. 328. Or. Schoellhamer v. Rometsch, 26 Or. 394, 38 P. 344. Pa. Peirson v. Duncan, 162 Pa. 187, 29 A. 733, 34 Wkly. Notes Cas. 456. Wash. McQuillan v. City of Seat- tle, 13 Wash. 60O, 43 P. 893; Box v. Kelso, 5 Wash. 360, 31 P. 973. «oAIa, American Oak Extract Co. v. Ryan, 104 Ala. 267, 15 So. 807. Ark. Boren v. Bettis, 194 S. W. 850, 128 Ark. 457, Conn. Fengar v. Brown, 57 Conn. 60, 17 A. 321. Neb. Barton v. Shull, 97 N. W. 292, 70 Neb. 324 ; , Stephens v. Patter- son, 29 Neb. 697, 46 N. W. 154. W. Y. TufCey v. Brooklyn Union Gas Co., 92 N. Y. S. 489, 102 App. DIv. 416. Pa. Xerkes vl Wilson, *81 Pa. 9. Tex, Downey v. Dennis (Civ. App.) 128 S. W. 667. 61 Van Valkenberg v. Van Valken- berg, 90 Ind. 433; Orris v. Chicago, R. I. & P. Ry. Co., 214 S. W. 124; 279 Mo. 1; Steinbrunner v. Pittsburgh & W. Ry. Co., 146 Pa. 504, 23 A. 239, 28 Am. St. Rep. 806, 29 Wkly. Notes Cas. 173 ; Gregory v. Baugh, 2 Leigh (Va.) 665. 8 2 Idaho Mercantile Co. v. Kalan- quln, 66 P. 938, 8 Idaho, 101 ; Hutch- inson V. Grain, 3 111. App. 20. 88 Northern Central Coal Co. v. Barrowman (C. C. A. Mo.) 246 F. 906, 765 FORMAL MATTERS §426 misstatement will not, however, constitute reversible error, in the absence of anything to show prejudice therefrom to the party com- plaining of it,®* and, as is shown more fully in another chapter, it IS the duty of a party, affected by such a serious mistake in quot- ing testimony, to call the attention of the court to it immediately after the charge, in order that .the court may have an opportunity to correct it.®* § 426. Comments by court on the justice or validity of rules of law stated by it It is not improper for the court to characterize a rule of law stated by it as the rule of common sense,®® but it is error for the trial judge to express disapproval of the law given to the jury,®' or to take away its effect by observations which may inflame the jury into disregarding it.®* 159 O. C. A. 178; Tuckwood v. Haw- thorn, 67 Wis. 326, 30 N. W. 705. 6 4 Cal. Knowles v. Murphy, 107 Cal. 107, 40 P. 111. Kam. Bellew v. Ahrburg, 23 Kan. 287. Mass. Mclntire v. Leland, 118 N. E. 665, 229 Mass. 348. W. Y. Looram v. Third Ave. R. Co., 6 N. T. S. 504. Pa. Richards v. Willard, 176 Pa. 181, 35 A. 114, 38 Wkly. Notes Cas. 400; Udderzook v. Harris, 140 Pa. 236, 21 A. 395; Penn Mut. Ins. Co. r Snyder, 3 Wkly. Notes Cas. 269; Roljerts v. Halstead, 9 Pa. 32, 49 Am. Dec. 541; Hamet v. Dundass, 4 Pa. 178; Dennis v. Alexander, 3 Pa,. 50. Tex. Gooch r. Addison, 18 Tex. Ciy. App. 76, 35 S. W. 83. Assumption that jury not mis- led. Where a judge told the jury that there was nothing said concern- ing a particular item, overlooking the fact that there was evidence given regarding such item, it will be assum- ed, notwithstanding, that the jury had that evidence in mind when con- sidering the verdict. Herst v. De Comeau, 31 N. Y. Super. Ct. 590. 66 Mann v. Cowan, 8 Pa. Super. Ct. 30. 6 6 Henry v. Klopfer, 147 Pa. 178, 23 A. 338, 29 Wkly. Notes Cas. 831; Id., 147 Pa. 178, 23 A. 837, 29 Wkly. Notes Cas. 331. 6T Kennedy v. Bebout, 62 Ind. 363 ; Fitzgerald v. St. Paul, M. & M. Ry. Co., 29 Minn. 836, 18 N. W. 168, 43 Am. Rep. 212. _ ' Instructions not improper -with- in rule. Language in a charge as follows: "It is my duty to charge you the law as it is declared to be by our supreme court, without reference to my own personal opinion in regard to the matter," followed by a statement of the law as decided by the supreme court, is not Qrror. Dial v. Agnew, 28 S. C. 454, 6 S. E. 295. 6 8 McFadden v. Reynolds (Pa.) 11 A. 688. §427 INSTRUCTIONS TO JURIES 766 I. Inconsistent or Contradictory Instructions § 427. Rule that such instructions are erroneous It is error to give conflicting or contradictory instructions on material issues,*® and such instructions are properly refused.'* Idaho. State v. Webb, 55 P. 892, 6 Idaho, 428 ; Giffen v. City of Lewis- ton, 55 P. 545,' 6 Idaho, 231; Holt v. Spokane & P. R. Co., 3 Idaho (Hash.) 703, 35 P. 39. ni. Chicago, B. & Q. R. Co. v. Payne, 49 III. 499 ; Chicago & A. Ry. Co. V. Henline, 120 III. App. 134 ; Tur- ner V. Owen, 122 111. App. 501 ; Wood V. Olson, 117 111. App. 128; Chicago & A. Ry. Co. V. Jennings, 114 111. App. 622; Thomas v. Riley, 114 111. App. 520; Dauchy Iron Works v. Teles, 107 111. App. 216; Fessenden v. Doane, 89 111. App. 229, judgment affirmed 58 N. E. 974, 188 111. 228; Knowlton v. Fritz, 5 111. App. 217. Ind. Cleveland, C, C. & St. L. Ry. Co. V. Lynn, 85 N. E. 999, 171 Ind. 589, reversing judgment (App.) 83 N. B. 1135, judgment affirmed on rehear- ing 86 N. B. 1017, 171 Ind. 589 ; Wen- ning V. Teeple, 144 Ind. 189, 41 N. E. 600; McDougal v. State, 88 Ind. 24; Bitting V. Ten Eyck, 82 Ind. 421, 42 Am. Rep. 505 ; Somers v. Pumphrey, 24 Ind. 231. Iowa.. Peterson v. McManus, 172 N. W. 460, 187 Iowa, 522; State v. Glaze, 159 N. W. 260, 177 Iowa, 457 ; Adams v. Junger, 139 N. W. 1096, 158 Iowa, 449 ; Blake v. Miller, 112 N. W. 158, 135 Iowa, 1 ; -Brusseau v. Lower Brick Co., 110 N. W. 577, 133 Iowa, 245; Kerr v. Topping, 80 N. W. 321, 109 Iowa, 150. Ky'. Eagle Coal Co. v. Patrick's Adm'r, 170 S. W. 960, 161 Ky. 333; Ferguson v. Fox's Adm'r, 1 Mete. 83. la. State V. Hogg, 58 So. 225, 126 sou. S. Deserant v. Cerillos Coal R. Co., 20 S. Ct. 967, 178 U. S. 409, 44 L. Ed. 1127, reversing judgment Same v. Cerillos Coal R. Co., 55 P. 290, 9 N. M. 495; (C. C. A. N. Y.) J. H. Sullivan Co. v. Wingerath, 203 F. 460, 121 C. C. A. 584. Ala. Harvey v. State, 73 So. 200, 15 Ala. App. 311 ; Clinton Mining Co. V. Bradford, 69 So. 4, 192 Ala. 576. Ark. Simmons v. Lusk, 194 S. W. 11, 128 Ark. 336; Swearingen v. C. W. Bulger & Son, 176 S. W. 328, 117 Ark. 557; Turquett v. McMurrain, 161 S. W. 175, 110 Ark. 197 ; Chicago Mill & Lumber Co. v. Johnson, 147 S. W. 86, 104 Ark. 67; Wells v. State, 145 S. W. 531, 102 Ark. 627; Helena Hard- wood Lumber Co. v. Maynard, 138 S. W. 469, 99 Ark. 377; St. Louis, I. M. & S. Ry. Co. V. Hudson, 130 S. W. 534, 95 Ark. 506 ; Jones v. State, 116 S. W. 230, 89 Ark. 213 ; Kansas City Southern Ry. Co. v. Brooks, 105 S. W. 93, 84 Ark. 233. Cal. National Bank of San Mateo V. Whitney, 183 P. 789, 181 Cal. 202, 8 A. L. R. 298; People v. Ross, 126 P. 375, 19 Cal. App. 469 ; Hayden v. Con- solidated Mining & Dredging Co., 84 P. 422, 3 Cal. App. 136; Haight v. Vallet, 89 Cal. 245, 26 P. 897, 23 Am. St. Rep. 465 ; Agnew v. Kimball, 9 P. 91, 68 Cal. xix; Monroe v. Cooper, 6 P. 878, 66 Cal. xviii ; Aguirre v. Alex- ander, 58 Cal. 21 ; People v. Messer- smith, 57 Cal. 575; Bank of Stockton V. Bliven, 53 Cal. 708; McCreery v. Everding, 44 Cal. 246 ; Brown v. Mc- Allister, 39 Cal. 573. Colo. Barr v. Colorado Springs & I. Ry. Co., 168 P. 263, 63 Colo. 556; San Miguel Consol. Gold Min. Co. v. Stubbs, 90 P. 842, 39 Colo. 359; Ar- nett V. Huggins, 70 P. 765, 18 Colo. App. 115. Ga. Savannah Electric Co. v. Mc- Clelland, 57 S. E. 91, 128 Ga. 87; Cress V. State, 55 S. E. 491, 126 Ga. 564. TO Sweeney v. Erving, 33 S. Ct. 416, 228 U. S. 233, 57 L. Ed. 815, Ann. Cas. 1914D, 905, affirming judgment 35 App. D. C. 57, 43 L. R. A. (N. S.) 734 ; Michigan City v. Werner, 114 N. E. 636, 186 Ind. 149; Southern Ry. Co. V. Weidenbrenner, 109 N. E. 926, 61 Ind. App. 814; Advance Transfer Co. V. Chicago, R. I. & p. Ry. Co. (Mo. App.) 195 S. W. 566. 767 FORMAL MATTERS §427 The tendency of contradictory instructions is necessarily to con- La. 1053, 29 L. R. A. (N. S.) 830, 21 Ann. Cas. 124. Mass. Mooar v. Harvey, 125 Mass. 574. Mioli. Grogltzki v. Detroit Ambu- lance Co., 152 N. W. 923, 186 Mich. 374; Kennedy v. Ford, 149 N. W. 1013, 183 Mich. 481; Hayes v. City of St. Clair, 139 N. W. 1037, 173 Mich. 631; Lake Shore & M. g. R. Co. v. Miller, 25 Mich. 274. Minn. McCormick v. Kelly, 28 Minn. 135, 9 N. W. 675. Miss. Illinois Cent. R. Co. v. Mc- Gowan, 46 So. 55, 92 Miss. 603 ; Solo- mon v.- City Compress Co., 69 Miss. 319, 12 So. 339; Kansas City, M. & B. R. Co. V. Lilly, 8 So. 644; Hern- don V. Henderson, 41 Miss. 584. Mo. Padgett v. Pence, 178 S. W. 205; Gourley v. American Hardwood Lumber Co., 170 S. W. 339, 185 Mo. App. 360; Stid v. Missouri Paa Ry. Co., 139 S. W. 172, 236 Mo. 382; Kel- ley V. United Rys. Co. of St. Louis, 132 S. W. 269, 153 Mo. App. 114; Por- ter V. Missouri Pac. Ry. Co., 97 S. W. 880, 199 Mo. 82; Hurst v. St. Louis & S. F. R. Co., 94 S. W. 794, 117 Mo. App. 25 ; Vermillion v. Parsons, 94 S. W. 298, 118 Mo. App. 260; Roberts, Johnson & Rand Shoe Co. v. Shep- herd, 96 Mo. App. 698, 70 S. "W. 931; Edmonston v. Jones, 69 S. W. 741, 96 Mo. App. 83 ; Hoover v. Mercantile Town Mut. Ins. Co., 69 S. W. 42, 93 Mo. App. Ill; Spillane v. Missouri Pac. Ry. Co., Ill Mo. 555, 20 S. W. 293; Fath v. Tower Grove & L. Ry., 105 Mo. 537, 16 S. W. 913, 13 L. R. A. 74; State v. Herrell, 97 Mo. 105, 10 S. W. 387, 10 Am. St. Rep. 289; Stone v. Hunt, 94 Mo. 475, 7 S. W. 431 ; Otto V. Bent, 48 Mo. 23; State v. Bonden, 31 Mo. 402 ; Schneer v. Lemp, 17 Mo. 142; Sharp v. Sturgeon, 75 Mo. App. 651 ; Union Bank of Trenton v. First Nat. Bank, 64 Mo. App. 253; Jones V. Chicago, B. & K. C. Ry. Co., 59 Mo. App. 137 ; Evers v. Shumaker, 57 Mo. App. 454; Martinowsky v. City of Plannibal, 35 Mo. App. 70 ; Legg v. Johnson, 23 Mo. App. 590 ; Swan v. Lullman, 12 Mo. App. 584, memoran- dum; Lampert v. Laclede Gaslight Co., 12 Mo. App. 576, memorandum. Mont. State v. Jones, 139 P. 441, 48 Mont. 505 ; State v. Peel, 59 P. 169, 23 Mont. 358, 75 Am. St. Rep. 529; Kelley v. Cable Co., 7 Mont. 70, 14 P. 633. Neb. Peterson v. Chicago, M. & St. P. Ry. Co., 161 N. W. 1043, 101 Neb. 3 ; Bryant v. Modern Woodmen of America, 125 N. W. 621, 86 Neb. 372, 27 L. R. A. (N. S.) 326, 21 Ann. Cas. 365; Omaha St. Ry. Co. y. Boe- son, 94 N. W. 619, 68 Neb. 437 ; Town of Denver v. Myers, 88 N. W. 191, 63 Neb. 107. N. Y. Hartman v. Joline (Sup.) 112 N. Y. S. 1057. N. C. A. Blanton Grocery Co. v. Taylor, 78 S. E. 276, 162 N. C. 307; Edwards v. Atlantic Coast Line R. Co., 39 S. E. 730, 129 N. C. 78. Okl. Firebaugh v. Du Bois, 158 P. 924, 59 Okl. 236; Kansas City, M. & O. Ry. Co. V. Roe, 150 P. 1035, 50 Okl. 105 ; Payne v. McCormick Har- vesting Mach. Co., 66 P. 287, 11 Okl. 318. Or. Malloy v. Marshall-Wells Hardware Co., 173 P. 267, 90 Or. 303, judgment affirmed on rehearing 175 P. 659, 90 Or. 303. • Pa. Commonwealth v. Deitrick, 70 A. 275, 221 Pa. 7 ; Elk Tanning Co. v. Brennan, 52 A. 246, 203 Pa. 232; Gear- ing V. Lacher, 146 Pa. 397, 23 A. 229, 30 Wkly. Notes. Cas. 414; Selln v. Snyder, 11 Serg. & R. 319. B. I. G. W. McNear, Inc., v. Amer- ican & British Mfg. Co., 107 A. 242, 42 R. I. 302. S. C. Warren v. Wilson, 71 S. E. 818, 89 S. C. 420, appeal dismissed on petition for rehearing 71 S. E. 992, 89 S. C. 420. S. D. Coulter v. Gudehus, 139 N. W. 330, 30 S. D. 616. Tex. Merka v. State, 199 S. W. 1123, 82 Tex. Cr. R. 550; Walker v. State, 181 S. W. 191, 78 Tex. Cr. R. 237; Park v. Pyle (Civ. App.) 157 S. W. 445; Renfro v. Texas Cent. Ry. Co. (Civ. App.) 141 S. W. 820; St. Louis Southwestern Ry. Co. of Texas V. Anderson, 124 S. W. 1002, 61 Tex. Civ. App. 374; Williamson v. D. M. Smith & Co. (Civ. App.) 79 S. W. 51 ; Eddy v. Bosley, 78 S. W. 565, 34 §427 INSTRUCTIONS TO JURIES 768 fuse and mislead the jury.'^ Such instructions are further ob- Tex. Civ. App. 116; Kraus v. Haas, 6 Tex. Civ. App. 665, 25 S. W. 1025. Utah. Connell v. Oregon Short Line R. Co., 168 P. 337, 51 Utah, 26; Konold V. Rio Grande W. Ry. Co., 60 P. 1021, 21 Utah, 379) 81 Am. St Rep. 608. Va. Roanoke Ey. & Electric Co. v. Carroll, 72 S. E. 125, 112 Va, 598; Southern Ry. Co. v. Hansbrough's Adm'x, 60 S. E. 58, 107 Va. 733 ; City of Winchester v. Carroll, 40 S. B. 37, 99 Va. 727 ; Chesapeake & O. Ry. Co. V. Jennings, 34 S. E. 986, 98 Va. 70. W. Va. Stuck V. Kanawha & M. Ry. Co., 89 S. E. 280, 78 W. Va. 490; Tower v. Whip, 44 S. E. 179, 53 W. Va. 158, 68 L. R. A. 937; Ward v. Ward, 35 S. E. 873, 47 W. Va. 766; Reese v. Wheeling & E. G. R. Co., 42 W. Va. 333, 26 S. E. 204 ; McKelveyi v. Chesapeake & O. Ry. Co., 35 W. Va. 500, 14 S. E. 261; State v. Cain, 20 W. Va. 679; McMechen v. McMechen, 17 W. Va. 683, 41 Am. Rep. 682. Wis. Bleiler v. Moore, 69 N. W. 164, 94 Wis. 385; Gove v. White, 23 Wis. 282. Illustrations of contradictory instructions. A charge, in a pros- ecution for adultery, that if the jury believed beyond a reasonable doubt that prosecutrix was pregnant, they should consider such fact in connec- tion with other evidence as tending to connect defendant with the crime or corroborate prosecutrix's testi- mony, but that such pregnancy was not of itself any evidence that de- fendant had had sexual intercourse with prosecutrix. State v. Thomp- son, 87 P. 709, 81 Utah, 228. Instruc- tions, in action to establish boundary line, that burden was on plaintiff to show alleged true line by greater weight of evidence, and that defend- ant, contending that another line was true dividing line, had burden of es- tablishing it. Tillotson v. Fulp, 90 S. E. 500, 172 N. C. 499. Instruction that one furnishing plans for a build- ing was an Independent contractor, and a charge that owner should fur- nish correct plans. Bayne v. Ever- ham, 163 N. W. 1002, 197 Mich. 181. Instruction, in action against carri- ers for delay in transportation, that neither carrier was responsible for damage! not directly or proximately caused by it, and another instruction that the initial carrier was responsi- ble for the delay on any of the con- necting carriers, and therefore en- titled to recover over against the car- rier responsible. Texas & P. Ry. Co. V. Cauble (Tex. Oiv. App.) 16? S. W. 369. An instruction, in an action for injuries to a passenger carried beyond her station, that she had a right to walk back without assuming the risks incident thereto, and which leaves to the jury to say whether she was jus- tified in electing to walk back. St. Louis, I. M. & S. Ry. Co. v. Bright, 159 S. W. 33, 109 Ark. 4. A charge that a conviction cannot be had upon an ac- complice's testimony, unless the jury believe it to be true and that it shows or tends to show accused's guilt, and ■ a charge that if the jury are satisfied that certain witnesses were accom- plices, or have a reasonable doubt whether they were or were not, they cannot convict upon their testimony, unless they believe the witnesses' testimony true, and that it shows ac- cused guilty as charged in the indict- ment, and unless there is other evi- dence tending to connect accused with the commission of the offense, are in direct conflict; and the first one, er- roneously stating that accomplice testimony need only tend to connect accused with the offense, was not cured by the other, stating the correct rule. Tate v. State, 11© S. W. 604, 55 Tex. Cr. R. 397; Id. (Tex. Cr. App.) 71 Parnsworth v. Tampa Electric Co., 57 So. 233, 62 Fla. 166; Catan- zaro Di Giorgio Co. v. P. W. Stock & Sons, 81 A. 385, 116 Md. 201 ; Eyre- Shoemaker Const. Co. V. Mackin, 81 A. 267, 116 Md. 58; Pullman Co. v. Custer (Tex. Civ. App.) 140 S. W. 847. Conflict between main charge and requested instructions.. A mere conflict between instructions in chief and those given at the request of a party does not necessarily mis- lead. Byser V. Weissgerber, 2 Iowa, 463. 769 FORMAL MATTERS §427. je.ctionable, because they devolve upon the jury the duty of de- 116 S. W. 606, 607; Taylor v. State (Tex. Cr. App.) 116 S. W. 606. An in- struction, in ejectment, that plaintiffs were suing only for land lying north and "east" of a certain slough, and that they could not recover any land "east" of the slough. Grady v. Royar (Mo.) 181 S.- W. 428. Instruction that, where a person's acts necessarily op- erate to defraud others, he must be deemed to have intended a fraud, and Instructions stating that fraud could not be presumed. Barrows v. Case, 165 P. 779, 63 Colo. 266. Where, un- der an indictment for assault with in- tent to kill, the jury were authorized under the charge to convict of ag- gravated assault, a further instruc- tion that, if the jury found that a companion of accused was guilty of an aggravated assault, defendant should be acquitted, or, if they had a reasonable doubt, they should acquit him of any charge whatever, was er- roneous, as contradictory and mis- leading. Henry v. State (Tex. Cr. App.) 54 S. W. 592. Instructions that mere excitement or agitation does not destroy the element of deliberation in murder in the first degree, and that, in passing on defendant's motives and int€ntk>ns, and , thie reasonableness and good faith thereof, the jury should take into consideration any agitation and excitement, if *uch were . shown, were inconsistent, and calcu- lated to mislead. State v. Grugin, 47 S. W. 1058, 147 Mo. 39, 42 L. K. A. 774, 71 Am. St. Bep. 553. In a pros- ecution for murder, in which it ap- peared that defendant's wife was kill- ed while he and another were en- gaged in a shooting affray, an instruc- tion that evidence tending to show that defendant shot at the other per- son engaged in the affray could not be considered as any evidence of the guilt of the defendant, but that, if the jury believed defendant killed deceased, they might consider such evidence as showing the condition of defendant's mind at the time he fired and the intent with which he did so, is erroneous, as contradictory. Ben- nett V. State (Tex. Or. App.) 75 S. W. 314. On a prosecution for murder, an INST.TO JUBIES — 49 instruction that, if the jury believed beyond a reasonable doubt that the facts necessary to establish gflilt were Droven, it was their duty to convict, though they might doubt whether one or more of the circumstances attempt- ed to be iJroved had been established. Brady v. Commonwealth, 11 Bush (Ky.) 282. In a prosecution for homi- cide, it was error to charge in one instruction that if defendant was led to commit the homicide from learn- ing that decedent had insulted his wife, and also that the decedent had used violent language to and threat- ened defendant with bodily harm, he was only guilty of manslaughter, and in the next that, in order to reduce his offense to manslaughter, it was only necessary for the jury to believe that he was led to commit the homi- cide from learning that decedent had insulted his wife. Barbee v. State, 124 S. W. 961, 58 Tex. Cr. K. 129. An instruction which. If the killing is shown, assumes a crime to be murder, and requires proof of the lower de- gree to be mjfde by the defendant be- fore the jury can reduce the degree to manslaughter, is inconsistent with an instruction that the burden of proof never shifts, but remains with the state throughout the trial. Ken- nison v. State, 115 N. W. 289, 80 Neb. 688. On a trial for illegally selling intoxicating liquors, an instruction directing a verdict of guilty if the sale was made within a year prior to filing the taformation and an in- struction directing an acquittal un- less the sale was made on a certain date as testified to by a state's wit- ness. State V. Fellers, E7 S. W. 95, 140 Mo. App. 723. An instruction that concurrence in the min^s of the parties, in pursuance of a decision to commit a theft, renders them all alike guilty, whether they were in fact present at the theft or not, and an instruction that defendant would not be found guilty if there was a reason- able doubt as to his presence at the place where the offense was commit- ted. Criner v. State, 53 S. W. 873, 41 Tex. Cr. E. 290. In a prosecution for grand larceny, an instruction, 427 INSTRUCTIONS TO JURIES 770 termining which of two kinds of instructions shall be followed, or whicli in one clause told the jurors that they might use their own knowl- edge in determining any fact in the case, and in another paragraph told them that they must determine the facts from the evidence introduced. State V. Blaine, 124 P. 51©, 45 Mont. 482. Instructions, authorizing recov- ery if plaintiff's deceased was injured by rock falling from one of main en- tries in defendant employer's coal mine and another denying recovery unless plaintiff proved -that injury occurred at point specified in com- plaint. State ex rel. Central Coal & Coke Co. V. Ellison, 195 S. W. 722, 270 Mo. 645, quashing judgment (App.) Goode V. Central Coal & Coke Co., 186 S. W. 1122. An instruction that all persons engaged in the same work are fellow servants, though one may be a foreman, and an instruction that where a man has power to control men, whether called a superintendent or foreman, for whose negligence the master is liable. Petroleum Iron Works Co. V. BuUington, 161 P. 538, 61 Okl. 311. A charge, in effect in- structing the jury that if they do not believe a witness as to one material part of his evidence they must believe him as to other parts. Southern Ry. Co. V. Penney, 51 So. 392, 164 Ala. 188. Instrnctiooas held not inconsist- ent. In an action for death of an employ^ in falling from a scaffold constructed by the master,' instruc- tions that, if decedent did not use ordinary . care, the finding should be for defendant, and that if the jury found defendant's negligence to have been the proximate cause of dece- dent's fall, the finding should be for the plaintiff, were not inconsistent. Storey v. J. C. Mardis Co., 173 N. W. 115, 186 Iowa, 809. Instructions that if the jury, from a consideration of all the evidence, were satisfied of de- fendant's guilt beyond a reasonable doubt, it was their duty to find him guilty, and that, as the evidence was circumstantial, each material circum- stance must be proven to the jury's satisfaction beyond a reasonable doubt, or they should acquit, were not in conflict. People v. Weber, 86 P. 671, 149 Cal. 325. A charge that: "Defendant is charged in the second count of the indictment with the crime of assault with iiitent to kill, without malice, and this is the only matter for your determination ; the other two counts being withdrawn from your consideration. * * * 'Malice,' as above used, means the in- tentional doing of a wrongful act without just cause or excuse,"- — and a subsequent charge that if defendant purposely and intentionally made an assault on the prosecuting witness, and shot him with intent to kill, he was guilty of an assault with intent to kill, were not objectionable as contradictory, and as, when taken to- gether, authorizing the jury to find malice to be an ingredient of the of- fense. State V. Moore, 68 S. W. 358, 168 Mo. 432. A charge directing an acquittal if the jury believed accus- ed's story, and a charge that, if there was any doubt after weighing the tes- timony, they must give accused the benefit of it, are not inconsistent. State vv KroU, 93 A. 571, 87 N. J. Law, 330. An instruction that, before the jury could acquit, they must find • defendant was laboring under such a defect of reason from disease of the mind as to not know — that is, as not to have sufficient mental capacity to know — the nature and quality of the act he was jioing, or, if he did know it, that he did not know he was doing wrong, and an instruction that, before the jury could acquit on the ground of insanity, it must appear defendant was affected with insanity to such a degree as to create an uncontrollable impulse to do the act charged by overriding his reason and judgment, are not inconsistent, though from the vague language used the jury might reasonably infer that defendant had the burden of establishing his insan- ity. State V. Crowe, 102 P. 579, 39 Monf. 174, 18 Ann. Cas. 643. An in- struction on manslaughter that "in- sulting words or gestures or an or- dinary assault and battery so slight as to show no intention to Inflict pain or injury are not deemed adequate cause" is proper, and not contradic- "^71 FORMAL MATTERS § 427 what rule of law shall control the case,'* and because it cannot tory of a further instruction that "any condition or circumstance which is capable of creating and does create sudden passion, such as anger, rage, sudden resentment, or terror render- ing the mind incapable of cool reflec- tion, whether accompanied by bodily pain or not, is deemed adequate cause," etc. Davis v. State, 124 S. W. 104, 57 Tex. Or. R. 545. On a prosecution for robbery an instruction that if the property was feloniously taken, and was received into the possession of de- fendant shortly thereafter, any failure of defendant to account for such pos- session was a circumstance tending to show his guilt and he was bound to explain the possession in order to remove the effect thereof, was not in conflict with another instruction that possession of stolen property, unex- plained, was not, of itself, sufficient to justify a conviction, but was a cir- cumstance to be considered in con- nection with other testimony. Peo- ple V. Wilson, 67 P. 322, 135 CaJ. 331. An instruction that the jury are the exclusive judges of the weight of the testimony and the credibility of the witnesses is not inconsistent with a charge that a conviction cannot be had on the uncorroborated testimony of the accomplice. Barrett v. State, 115 S. W. 1187, 55 Tex. Cr. R. 182. Instructions on character of ac- cused. An instruction that evidence tending to show accused's bad char- acter is not evidence that accused is guilty of the offense charged is not inconsistent with an instruction that good character does not excuse crime but that the jury may consider evi- dence of good character in determin- ing the guilt or innocence of accused. State V. Priest, 114 S. W. 949, 215 Mo. 1. Where the court, at the request of defendant, instructed the jury that, if defendant has proved a good char- acter as a man of peace, such good character may be sufficient to cause a reasonable doubt of his guilt, though no such doubt would have ex- isted without such proof; and that proof of good character was relevant to the question of guilt, to be con- sidered with the other facts in the case, it >vas held that an addition by the court that, if the jury believed defendant guilty, then proof of such good character would be of no avail to. him, did not conflict with the pre- vious instruction. State v. Levigne, 30 P. 1084, 17 Nev. 435. Instructions upon drunkenness of accused as affecting intent. Where, in a prosecution for assault with intent to kill, defendant claimed that he was too drunk at the time to form an Intent, and the court charged that drunkenness in itself was no defense, but that, if defendant was so completely intoxicated that he was Incapable at the time of forming an intent, he could not be found guilty, and another instruction charg- ed that, if the liquor had merely in- flamed defendant's passion while he was still able to distinguish right from wrong and knew at the time he was doing wrong, drunkenness would be no defense, it was held that such Instructions were not objectionable as inconsistent. State v. Yates, 109 N. W. 1005, 132 Iowa, 475. Instructions on reasonable doubt. Where, at the request of the state the jury were instructed that a doubt, to authorize an acquittal, should be a reasonable doubt, fairly arising from the evidence as a whole, and that a mere possibility that the defendant might be innocent would not warrant an acquittal, and at the request of the accused the jury were instructed that it is not enough to justify a verdict of guilty that there may be a strong suspicion, or even a strong probability, of the guilt of de- fendant ; that the law requires proof by legal and credible evidence, — such as, when all considered, produces a clear conviction of the defendant's guilt beyond a reasonable doubt ; that if the jury entertain any reasonable doubt as to whether defendant was excusable and justified in the acts complained of, or if any one of the 72 Fowler V. Wallace, 31 N. E. 53, 131 Ind. 347; W. B. Johnson & Co. v. Central Vermont Ry. Co., 79 A. 1095, 84 Vt. 486. § 428 INSTRUCTIONS TO JURIES 772 usually be determined from the verdict which of the Inconsistent instructions has been followed.'* Such rule applies, even although one of the instructions is incorrect, and the other is a correct in- struction, given to remedy the first.'* § 428. Specific applications of rule An instruction that all men, sane or insane, "act from motive," and that, if the accused had no motive, it might be considered as a circumstance in favor of his plea of insanity, is self-contradic- tory.'® So, in a prosecution for homicide, instructions on the is- sue of insanity based solely on the "right and wrong test" are in irreconcilable conflict with others based on that test as modified by the "irresistible impulse test." '* So a charge that, if the jury have a doubt arising from the evidence or lack of evidence as to all the material allegations of the indictment, they will give the defend- ant the benefit thereof and find him guilty of such degree of crime as from the evidence beyond a reasonable doubt they believe him to be guilty of, and that- he should be acquitted if he is guilty of no crime, is erroneous, as, if the jury have a reasonable doubt as to all the material facts, they cannot convict the defendant of any degree of crime.'" § 429. Submitting opposing theories of case Instructions which correctly state the law are not contradictory merely because the application of each instruction to the case de- pends upon the view which the jury may take of the evidence." Instructions stating the law applicable to, opposite theories of the case often become necessary, because one party tries his case on one theory of the law and the evidence, while the other party tries his side of the case iipon a different theory ; '* and while, in some jurisdictions, a plaintiff cannot go to the jury on two distinct and entirely contradictory grounds, and it is error to submit a case to jury, after having considered all the 14, 134 Ark. 575 ; Rector . v. Kobins, evidence, and after a consultation 86 S. W. 667, 74 Ark. 437; City of vrith his fellow jurymen, entertains Lincoln v. Heinzel, 134 111. App. 439. a reasonable doubt, accused should 's Blume v. State, 56 N. B. 771, 154 be acquitted, it was held that such in- Ind. 343. structions were not conflicting. State '« State v. Keerl, 75 P. 362, 29 V. Moore, 56 S. W. 883, 150 Mo. 204. Mont. 508, 101 Am. St. Bep. 579. Ts Gardner v. Metropolitan St. Ry. '''' Cook v. State, 35 So. 665, 46 Pla. Co., 122 S. W. 1068, 223 Mo. 389, 18 20. Ann. Oas. 1166; Kelly v. Lewis Inv. ^s City of Richmond v. Gentry, 68 Co., 133 P. 826, 66 Or. 1, Ann. Cas. S. E. 274, 111 Va. 160. 1915B, 568; Weld-Neville Cotton Co. " Keim v. Gilmore & P. R. OOi, 131 v. Lewis (Tex. Civ. App.) 163 S. W. P. 656, 23 Idaho, 511; Hendrix v. 667. Corning, 214 S. W. 253, 201 Mo. App. 74 Harla-ider v. Howard, 203 S. W. 555. 773 FORMAL MATTERS §430 the jtiry on conflicting theories, and tell them that they may, if the evidence warrants, find for the plaintiff on either theory,** in other jurisdictions a plaintiff may rely upon inconsistent grounds of recovery, and where he may prevail upon either he can have both, submitted to the jury, such submission being in the alterna- tive and making it plain that a recovery may be had upon only one.*^ § 430. Effect of such instructions as ground for reversal The giving of conflicting instructions is ground for the reversal of a judgment,** where they are calculated to mislead the jury as to matters material to the issues,*^ or leave them in doubt as to the law,** unless the evidence is such that the jury could not have been misled,*^ or unless the appellate court is satisfied that the appellant was not injured by the error,** and in some jurisdictions the giving of conflicting instructions is generally presumed to prej- udice the party complaining.*" Where, however, no harm has come from such conflict to the party complaining thereof,** and the jury has not been misled. 8 Anderson v. Oscamp (Ind. App.) 35 N. E. 707 ; WincheU v. Latham (N. Y.) 6 Cow. 682. 81 Texas & P. Ry. Co. v. Matkln, 107 Tex. 125, 174 S. W. 1098, affirm- ing judgment (Oiv. App.) 142 S. W. 604. Evidence supporting only one tbeory.. The presentation of two in- consistent theories of plaintifC's case to the jury, on one of which he was entitled to recover, and on the oth- er of which he could not recover with- out a disregard of all the evidence in- troduced by him, was reversible er- ror. Behen v. St. Louis Transit Co., 85 S. W. 340, 186 Mo. 430. 82 Cal. Clark v. McElvy, 11 Cal. 154. Fla. Florida East Coast Ry. Co.. V. Jones, 62 So. 898, 66 Fla. 51. 111. Illinois Linen Co. v. Hough, &1 111. 63. Ind. Watts V. Chicago & E. I. R. Co., 104 N. B. 42, 61 Ind. App. 51 ; Summerlot v. Hamilton, 121 Ind. 87, 22 N. E. 978. Mo. Carder v. Primm, 60 Mo. App. 423 ; Frank v. Grand Tower & C. Ry. Co., 57 Mo. App. 181. N. Y. Clarke v. Schmidt, 104 N. E. 613, 210 N. X. 211, reversing judg- ment 132 N. T. S. 1124, 148 App. Div. 895. Tex. Trinity & Brazos Valley Ry. Co. V. Lunsford (Civ. App.) 160 S. W. 677. Va. Powhatan Lime Co. v. Af- fleck's Adm^r, 79 S. E. 1054, 115 Va. 643; Norton Coal Co. v. Hanks' Adm'r, 62 S. B. 335, 108 Va. 521. 83 Illinois Match Co. v. Chicago, R. I. & P. Ry. Co., 95 N. E. 492, 250 111. 396, reversing judgment 153 111. App. 568; Cummlngs v. Holland, 130 111. App. 315; Pendleton v. Chicago City Ry. Co., 120 111. App. 405; State v. Dudley, 91 N. E. 605, 45 Ind. App. 674 ; Canton Lumber Co. of Baltimore City V. Miller, 76 A. 415, 112 Md. 258. 8 4 Steele v. Michigan Buggy Co., 95 N. E. 435, 50 Ind. App. 635. 85 Escambia County Electric Light & Power Co. v. Sutherland, 55 So. 83, 61 Fla. 167. 8 6 Randall v. Northwestern Tel. Co., 54 Wis. 140, 11 N. W. 419, 41 Am. Rep. 17. 8 7 Producers' Coal Co. v. Mifflin Coal Mining Co,, 95 S. E. 948, 82 W. Va. 311. 8 8 Nuckolls V. Gaut, 12 Colo. 361, 21 P. 41. §431 INSTRUCTIONS TO JURIES 774 such inconsistency will not constitute ground for reversal.'* Thus inconsistency between different instructions is harmless error, where the inconsistency arises from error in the instruction in favor of the appellant*' and the court, may present the various phases of the case suggested by the evidence or the contentions of the parties, although they are inconsistent with each other, when from the instructions as a whole the jury cannot be misled.®^ J. Singling Out or Giving Undue Prominence to Particular Facts or Matters Singling out matters as Invasion of province of jury, see, ante, § 44. § 431. General rule It is improper to single out a particular issue or defense, «o as to impress the jury with the idea that it is the controlling one, or to lead them to attach undue prominence to such issue or de- fense,®^ or to emphasize the theory of one party as compared with 8 9 Carrlngton v. Pacific Mail S. S. Co., 1 Cal. 475; Robbing v. Rotb, 95 111. 464; Garey v. Sangston, 64 Md. SI, 20 A. 1034; Maier v. Massachu- setts Ben. Ass'n, 107 Mich. 687, 65 N. W. 552; Jansen v. Williams, 36 Neb. 869, 55 N. W. 279, 20 L. R. A. 207. 90 Williams v. Southern Pac. R. Co., 110 Cal. 457, 42 P. 974; Graybeal v. Gardner, 146 111. 337, 34 N. E. 528, affirming 48 111. App. 305 ; Hillebrant V. Green, 93 Iowa, 661, 62 N. W. 32. 91 Votaw V. McKeever, 92 P. 1120, 76 Kan. 870. 92 Fla.. Jacksonville Electric Co. v. Adams, 39 So. 183, 50 Fla. 429, 7 Ann. Cas. 241. 111. Zoeller v. Court of Honor, 168 111. App. 562. Neb.. Rising v. Nash, 48 Neb. 597, 67 N. W. 460. Ohio. Lake Shore & M. S. Ry. Co. V. Whidden, 23 Ohio ar. Ct. R. 85. Tex. Munsey v. Marnet Oil & Gas Co. (Civ. App.) 199 S. W. 686; Van Geem v. Cisco Oil Mill (Civ. App.) 152 S. W. 1108 ; Huber v. Texas &; P. Ry. Co. (Civ. App.) 113 S. W. 984; Bu- chanan V. Missouri, K. & T. Ry. Co. of Texas, 107 S. W. 552, 48 Tex. Civ. App. 299 ; Dallas & O. C. El. Ry. Co. V. Harvey (Civ. App.) 27 S. W. 423. Instructions held not improper -within rule. Where in an action for the death of a trolley car passenger who jumped from the car on a par- rallel track in front of an approaching car oil that track to avoid danger of a collision by another car running into the car on which he was riding, the theory of plaintiff was that de- fendant had negligently placed dece- dent In a perilous position, and the theory of defendant was that dece- dent had not been placed in a posi- tion of imminent peril, an instruction that the basis of the action was neg- ligence which could not be presurned from the mere fact that decedent was run over by a car, but that before plaintifC could recover he must prove, not only that defendant was negligent, but that the negligence charged was the proximate cause of decedent's death, was not objectionable as di- recting the attention of the jury to the count of the declaration charging negligence in the operation of the car which struck decedent. Adamson's Adm'r v. Norfolk & P. Traction Co., 69 S. E. 1055, 111 Va. 556. In an ac- tion for injuries to plaintiflf's wife in alighting from a car, where the de- fendant pleaded contributory negli- gence, in that she left the car on the side opposite the depot, and that she attempted to leave it with a lot of 775 FORMAL MATTERS §431 the theory of his adversary ,** and instructions, ^objectionable be- cause of such 'emphasis, are properly refused, however correct they may be as legal propositions.** It is improper to give an instruction which singles out, and calls undue attention to, a particular part of the testimony or a partic- \ bundles and packages in her arms, rendering her unable to use the rail- ing, whereby she was caused to lose her balance and fall, special instruc- tions on the subject of contributory negligence conformable to these phas- es, given in addition to a charge in general terms on contributory negli- gence, were not erroneous as giving undue prominence to the issue. Ram- ble v. San Antonio & G. R. R., 100 S. W. 1022, 45. Tex. -Civ. App. 422. Where the court stated in the gen- eral charge that the burden of proof was on plaintiff to establish the ma- terial allegations of his petition, the giving of a special charge that, if a passenger is injured while alighting from a train, he cannot recover there- for, unless it is shown by a preponder- ance of evidence that the Injury was caused by the failure of the company to exercise the proper degree of care, was not objectionable as giving undue prominence to the rule of law ex- pressed. Ramble v. San Antonio & G. R. R., 100 S. W. 1022, 45 Tex. Civ. Appl 422. The court not having told the jury on whom the burden of proof rested to prove whether insured met his death in a violation, or attempted violation, of law, but only that to find for defendant they must believe that insured, without justification and in violation of law, made an assault to murder K., and in the course of the difficulty was shot, plaintiff was en- titled to a charge that such burden was on defendant; so that giving plaintiffs' charge that the burden was on defendant to show that insured met his death in a violation, or an attempted violation, of law, could not be complained of as giving undue prominence to the necessity of defend- ant making such showing by a prepon- derance of the evidence. "Woodmen of the World v. McCoslin, 126 S. W. 894, 59 Tex. Civ. App. 574. Where, in an action against an iron compa- ny for injuries to plaintiff while em- ployed in the construction of a build- ing, one of the issues was whether the building was being constructed by the iron company or by a realty company organized by the same persons that owned and controlled the iron com- pany, and there was evidence that before plaintiff's injury the officers and stockholders of the iron company determined to organize the realty company, but that the realty company was not incorporated until after a building permit had been issued for the building on which plaintiff was injured, the permit being taken out by the agent of the iron company, an instruction that the realty company was not incorporated until a date specified, which was the date shown by the evidence as the date of the in- corporation, was not objectionable as giving undue prominence to the date of the incorporation of the realty com- pany. Kim V. E. E. Southern Iron Co., 124 S. W. 45, 140 Mo. App. 451. OS Weiss V. Bethlehem Iron Co. (C. 0. A. Pa.) 88 F. 23, 31 C. C. A. 363 ; In re Townsend's Estate, 97 N. W. 1108, 122 Iowa, 246; St. Louis South- western Ry. Co. of Texas v. Terhune (Tex. Civ. App.) 81 S. W. 74 ; Barton V. Stroud-Gibson Grocer Co. (Tex. Civ. App.) 40 S. W. 1050. 94 111., Slack V. Harris, 65 N. E. 669, 200 111. 96, affirming judgment 101 111. App. 527. Mass. Kenny v. Town" of Ipswich, 59 N. E. 1007, 178 Mass. 368. Miiui. Fransen v. Falk Paper Co., 160 N. W. 789, 135 Minn. 284. N. H. Davis v. Concord & M. R. R., 44 A. 388, 68 N. H. 247. R. I. Reynolds v. Narragansett Electric Lighting Co., 59 A. 393, 26 R. I. 457. Tex. Jacksonville Ice & Electric Co. V. Moses, 134 S. W. 379, 63 Tex. Civ. App. 496. Wis. Watson v. Milwaukee & M. R. Co., 57 Wis. 332, 15 N. W. 468. § 431 INSTRUCTIONS TO JURIEa 770 ular part of the .evidence *^ or at least the giving of such an in- 8 u. S. (C. C. A., Ark.) Western Coal & Mining Co. v. Berberich, 94 F. 32S, 36 C. C. A. 364; (C. C. A. Colo.) Trumbull v. Brickson, 97 F. S91. 38 C. C. A. 536 ; (C. C. A. Minn.) Minneapolis General Electric Co. v. Cronon, 166 F. 651, 92 C. C. A. 345, 20 L. R. A. (N. S.) 816. Ala. Birmingham Ry., Light & Power Co. v. Kyser, 82 So. 151, 203 Ala. 121; Minor v. Coleman, 74 So. 841, 16 Ala. App. 5; Dillworth v. Holmes Furniture & Vehicle Co., 73 So. 288, 15 Ala. App. 340 ; Stinson v. Falrcloth Byrd Co., 57 So. 143, 3 Ala. App. 607; "Western Union Telegraph Co. V. Bobbins, 56 So. 879, 3 Ala. App. 234 ; Duncan v. St. Ix)uis & S. F. Jtt. Co., 44 So. 418, 152 Ala. 118; Aber- cromble v. Fourth Nat. Bank, 39 So. 606 ; Birmingham Ey. & Electric Co. V. Mason, 39 So. 590, 144 Ala. 387, 6 Ann. Cas. 929; Central of Georgia Ry. Co. V. Larkins, 37 So. 660, 142 Ala. 375; Louisville & (N. R. Co. v. Jones, 30 So. 586, 130 Ala. 456 ; Pear- son V. Adams, 29 So. 977, 129 Ala. 157; Decatur Car Wheel & Mfg. Uo. V. MehafCey, 29 So. 646, 128 Ala. 242 ; Louisville & N. R. Co. v. Orr, 26 So. 35, 121 Ala. 489; Williamson v. Ty- son, 105 Ala. 644, 17 So. 336 ; Wads- worth v. Williams, 101 Ala. 264, 13 So. 755; Steed v. Knowles, 97 Ala. 573, 12 So. 75. Ark. St. Louis Southwestern Ry. Co. V. Aydelott, 194 S. W. 873, 128 Ark. 479; Western Coal & Mining Co. V; Jones, 87 S. W. 440, 75 Ark. 76. Ga. Stiles v. Shedden, 58 S. E. 515, 2 Ga. App. 317. 111. Helbig V. Citizens' Ins. Co., 84 N. E. 897, 234 111. 251, affirming judgment Citizens' Ins. Co. v. Helbig, 138 111. App. 115; Funston v. Hoft- man, 83 N. E. 917, 232 111. 860 ; Wick- es v. Walden, 81 N. E. 798, 228 111. 56; Chicago Anderson Pressed Brick Co. V. Reinneiger, 140 111. 334, 29 N. E. 1106, 33 Am. St. Rep. 249; Pro- tection Life Ins. Co. v. Dill, 91 111. 174; Martin v. Johnson, 89 111. 537; Hatch V. Marsh, 71 111. 370; M. H. Boals Planing Mill Co. v. Cleveland, C, C. & St. L. Ry. Co., 211 lU. App. 125; McCormick v. Decker, 204 111. App. 554; Trainer v. Baker, 195 111. App. 216; Ballah v. Peoria Life Ass'n, 159 111. App. 222 ; Harvey v. McQuirk, 158 111. App. 50 ; Ventriss v. Pana Coal Co., 155 111. App. 152; Karkowski v. La Salle County Carbon Coal Co., 154 111. App. 399, judgment affirmed (1911) 93 N. B. 780, 248 111. 195; Fisher v. City of Geneseo, 154 111. App. 288, Gash V. Home Ins. Co. of New York, 153 111. App. 31; Penney v. John ston, 142 111. App. 634; Aygarn v, Rogers Grain Co., 141 111. App. 402 Hiughes V. Hughes, 133 111. App. 654 Trustees of Schools, etc., St. Clair County V. Yoch, 133 111. App. 32 Long V. Long, 132 111. App. 409 ; Pur- cell V. McKeel, 129 111. App. 428 Turner v. Lord & Thomas, 124 111, App. 117 ; Springfield Consol. Rv. Co, V. Gregory, 122 III. App. 607; Turner V. Rlghter, 120 111. App. 131; Beyer V. Martin, 120 111. App. 50; Chicago City Ry. Co. v. Lowitz, 119 111. App. 360, judgment affirmed 75 N. E. 755, 218 111. 24; New Ohio Washed Coal Co. V. Hindman, 119 111. App. 287; Scott V. Snyder. 116 111. App. 393; Chicago Hydraulic Press Brick Co. v. Campbell, 116 111. App. 322 ; Hart v. Carsley Mfg. Co., 116 111. App. 159, re- versed 77 N. B. 897, 221 111. 444, 112 Am. St. Rep. 189, 5 Ann. Cas. 720; Munford v. Miller, 7 111. App. 62; Anderson v. Warner, 5 ill. App. 416; Wright v. Bell, 5 111. App. 352 ; Hutch- ehinson v. Grain, 3 111. App. 20. Ind. North v. Jones, 100 N. E. 84, 53 Ind. App. 203. Iowa. Haman v. Preston, 173 N. W. S94, 186 Iowa, 1292; In re Evel- eth's Will, 157 N. W. 257, 177 Iowa, 716; Whitman v. Chicago Great Western Ry. Co., 153 N. W. 1023, 171 Iowa, 277; Kelly v. Chicago, R. I. & P. Ry. Co., 114 N. W. 536, 138 Iowa, 273, 128 Am. St. Rep. 195. Kan. Honlck v. MetroiX)litan St. Ry. Co., 71 P. 265, 66 Kan. 124. Ky. Stearns Coal & Lumber Co. v. Williams, 186 S. W. 931, 171 Ky. 46; Bennett v. Knott, 112 S. W. 849; Drake v. Holbrook, 92 S. W. 297, 28 777 POEMAL MATTERS §431 Ky. Law Rep. 1319 ; South Oovington & O. St. Ry. Co. V. Schilling, 89 S. W. 220, 28 Ky. Law Rep. 309 ; Louisville Ry. Co. V. Hartman's Adm'r, 83 S. W. 570, 26 Ky. Law Rep. 1174; Grab- tree V. Dawson, 83 S. W. 557, 119 Ky. 148, 26 Ky. Law Rep. 1046, 67 L. R. A. 565, 115 Am. St. Rep. 243 ; Louis- ville & N. R. Co. V. Banks, 33 fe. W. 627; Ohio R. Co. v. Finney, 15 Ky. Law Rep. (abstract) 29; Kentucky Tobacco Ass'n v. Ashley, 5 Ky. Law Rep. (abstract) 184. Md. Safe-Deposit & Trust Co. v. Berry, 49 A. 401, 93 Md. 560 ; Higgins V. Grace, 59 Md. 365. Mass. Quinlan v. Hugh Nawn Contracting Co., 126 N. B. 369, 235 Mass. 190; Neafsey v. Szemeta, 126 N. E. 368, 235 Mass. 160; O'Brien v. Shea, 95 N. E. 99, 208 Mass. 528, Ann. Cas. 1912A, 1030; O'Leary v. Boston Elevated Ry. Co., 95 N. E. 85, 209 Mass. 62; "Woodbury v. Sparrell Print, 84 N. E. 441, 198 Mass. 1; Packer v. Thomson-IJouston Electric Co., 56 N. E. 704, 175 Mass. 496; Moseley v. Washburn, 45 N. E. 733, 167 Mass. 345 ; Troeder v. Hyams, 153 Mass. 536, 27 K. E. 775 ; Packer V. Hinckley Locomotive Works, 122 Mass. 484 ; Littlefleld v. Huntress, 106 Mass. 121; Howe v. Howe, 99 Mass. 88 ; Stebbms v. Miller, 12 Allen, 591. Micli. First Nat. Bank v. Union Trust Co., 122 N. W. 547, 158 Mich. 94, 133 Am. St. Rep. 362; McKinnon Boiler & Machine (So. v. Central Mich- igan Land Co., 120 N. W. 26, 156 Mich. 11 ; Webster v. Sibley, 40 N. W. 772, 72 Mich. 630; People v. Colerick, 34 N. W. 683, 67 Mich. 362. Minn. Geddes v. Van Rhee, 148 N. W. 549, 126 Minn. 517; Taubert V. Taubert, 114 N. W. 763, 103 Minn. 247 ; Atwood Lumber Co. v. Watkins, 103 N. W. 332, 94 Minn. 464. Miss. Hooks V. Mills, 57 So. 545, 101 Miss. 91. Mo. Robinson v. Cruzen (App.) 202 S. W. 449 ; Fitzsimmons v. Com- merce Trust Co. (App.) 200 S. W. 437; Greenbrier Distillery Co. v. Van Frank, 126 S. W. 222, 147 Ho. App. 204 ; Gibler v. Quincy, O. & K. C. R. Co., 107 S. W. 1021, 129 Mo. App. 93 ; Zander v. St. Louis Transit Co., 103 S. W. 1006, 206 Mo. 445; Spohn v. Missouri Pae. Ry. Co., 87 Mo. 74; Fine v. St. Louis Public Schools, 39 Mo. 59; McAlister v. Irvine, 69 Mo. App. 442 ; Chaney v. Phoenix Ins. Co., 62 Mo. App. 45 ; Dobbs v. Gates' Es- tate, 60 Mo. App. 658. Web. Kleutsch v. Security Mut. Life Ins. Co., 100 N. W. 139, 72 Neb. 75; City of South Omaha v. Wrzen- sinski, 92 N. W. 1045, 66 Neb. 790; Martens v. Pittock, 92 N. W. 1038, 3 Neb. (Unof.) 770; Markel y. Moudy, 11 Neb. 213, 7 N. W. 853. Pa. Reichenbach v. Ruddach, 127 Pa. 564, 18 A. 432,, 24 Wkly. Notes Cas. 476. S. C. Pearlstine v. Westchester Fire Ins. Co., 49 S. E. 4, 70 S. O. 75. Tex, McDonald v. Stafford (Civ. App.) 213 S. W. 732 ; First Nat. Bank of Gamer, Iowa, v. Smith (Civ. App.) 183 S. W. 862; Tealock v. Tealock (Civ. App.) 141 S. W. 842 ; Gallagher V. Neilon (Civ. App.) 121 S. W. 564; McKay v. Peterson, 113 S. W. 981, 52. Tex. Civ. App. 193 ; Raywood Rice,. Canal & Milling Co. v. Wells, 77 S. W. 253, 33 Tex. Civ. App. 545 ; Laferiere- V. Richards, 67 S. W. 125, 28 Tex. Civ. App. 63; New York & T. Land Co. V. Gardner (Civ. App.) 25 S. W. 737. Utah. Kent v. Ogden, L. & I. Ry. Co., 167 P. 666, 50 Utah, 328. Vt. Vaillancourt v. (Jrand Trunk Ry. Co. of Canada, 74 A. 99, 82, Vt. 416. Va. Cerriglio v. Pettit, 75 S. E. 308, 113 Va. 533; Douglas Land Co. V. T. W. Thayer Co., 58 S. E. 1101, 107 Va. 292. W. Va. Parkersburg Nat. Bank v. Hannaman, 60 S. E. 242, 63 W. Va. 358; Delmar Oil Co. v. Bartlett, 59 S. E. 634, 62 W. Va. 700; Bice v. Wheeling Electrical Co., 59 S. E. 626, 62 W. Va. 685 ; McMechen v. McMech- en, 17 W. Va. 683, 41 Am. Rep. 682. Instructions held erroneous as in violation of rule. An instruc- tion, in an action on a note executed to a decedent in which defendant pleaded payment and produced sev- eral receipts acknowledging payment for money advanced, that the produc- tion of the receipts signed by deced- ent was a complete defense unless 431 INSTRUCTIONS TO JURIES 778 overcome by proof showing that the payments were in fact not made. Steltemeier v. Barrett, 122 S. W. 1093, 145 Mo. App. 534. An instruction as to the measure of damages for negli- gent killing, that "in arriving at this the jury may take into consideration the age of decedent and the probable duration of his life." Louisville & N. R. Co. V. Shoemake's Adm'r, 171 S. W. 383, 161 Ky. 746. An instruc- tion that the refusal of plaintiff to submit to a physical examination by defendant's physician may properly be considered by the jury. Simpson V. Peoria Ry. Co., 179 111. App. 807. An instruction referring to the effect of agitation and excitement upon an ordinarily prudent person while act- ing in an emergency. St. Louis & S. F. R. Co. V. Casselberry (Tex. Civ. App.) 139 S. W. 1161. An instruc- tion, in a personal injury suit, which gives undue prominence to physical disabilities and infirmities of the plaintiff. Geary v. City of Chicago, 161 111. App. 461. An instruction in ejectment, which calls especial atten- tion to the fact that plaintiff and his grantor denied that' they had agreed on the division line, is unfair to de- fendant, who testified that they had sp agreed'. Clayton v. Feig, 54 N. E. 149, 179 111. 534. An instruction, in an action on a life policy, precluding recovery if Insured was seen alive aft- er a particular date. Springmeyer v. Sovereign Camp, Woodmen of the World, 143 S. W. 872, 163 Mo. App. 338. Instruction, in an action for malicious prosecution, that the jury might look to the fact that defend- ant caused the prosecution to be dis- missed against plaintiff as a circum- stance tending to show malice, and that, if defendant was not actuated by malice, the verdict must be for defendant. Rutherford' v. Dyer, 40 So. 974, 146 Ala. 665. An Instruction, In an action by a railway brakeman for injuries, where life tables were read as evidence, that if the jury con- sidered the tables, it should also con- sider the hazardous nature of plain- tiff's employment as tending to deter- mine the length of his life and the duration of his ability to labor. Louisville & N. R. Co. v. Irby, 132 S. W. 393, 141 Ky. 145, judgment mod- ified 134 S. W. 139, 142 Ky. 273. An instruction, in an action for in- juries on the paved street of a large city, as to care required of plain- tiff emphasizing the fact that the accident occurred between street in- tersections. Rugenstein v. Otten- beimer, 140 P. 747, 70 Or. 600. An instruction, in suit for injuries to a child of 10 or 12 from contact with an electric light wire, that the jury in determining contributory negligence must "consider the fact that the plaintiff in this case has lived all his life in a city, where they had electric lights and electric wires, and the fact that the plaintiff thus had opportuni- ties to learn and appreciate the dan- gers of such agencies." Potera v. City of Brookhaven, 49 So. 617, 95 Miss. 774. An instruction in an action for injuries to plaintiff at a railroad crossing that, if the evidence was evenly balanced as to the speed of an engine and the witnesses as to this matter were equally credible, it was the jury's duty to give credence to those witnesses who testified that the speed did not exceed five miles per hour. Southern Ry. Co. v. Weather- low, 51 So. 381, ,164 Ala. 151. An in- struction. In an action upon notes giv- en to plaintiff In payment of machin- ery purchased for defendants, charg- ing that the giving of the notes was not a relinquishment of defendants' claim for excess charges upon the machinery. Robinson v. Silver, 87 A. 699, 120 Md. 41. An instruction. In an action to recover wagons, obtained by defendants from a third person, that defendant's knowledge before the purchase of the stock of such third person that he owed plaintiff for the wagons was not alone sufficient to put defendants on notice as to any fraud of such third person in obtaining the wagons. Parlin & OrendorfC Co. v. Glover, 118 S. W. 731, 55 Tex. Civ. App. 112. A charge. In an action for breach of warranty, that It was the duty of the jury to look to the time when the buyer made complaint to the seller to determine whether any defect existed at the time the machin- 779 FORMAL MATTERS §431 ery was sold. W. T. Adams Mach. Co. V. Turner, 50 So. 308, 162 Ala. 351, 136 Am. St. Eep. 28. An instruc- tion that actual sale of property by a trustee in bankruptcy is evidence of its market value. ETerzberg v. Rid- dle, 54 So. 635, 171 Ala. 368. An in- struction, on the trial of a question of will or no will, that, if the jury be- lieve there is gross inequality in the distribution of the estate by the in- strument and that no reason therefor exists, they may consider such fact in connection with all the other circum- stances proven in the case in deter- mining whether such paper is in fact the testator's wUl. Stokes' Ex'r v. Shippen, 13 Bush (Ky.) 180. An in- struction that the jury might consider the adequacy of the amount paid for a release in determining the compe- tency of plaintiff. Robinson v. Chica- go, R. I. & P. Ry. Co., 150 P. 636, 96 Kan. 137, judgment affirmed on re- hearing 153 P. 494, 96 Kan. 654. In- structions, in suit for work and ma- terials in improving property defend- ant was superintending, specifically calling the jury's attention to wheth- er he was an independent contractor and only slightly referring to the question of whether credit was given defendant or the owner, which was the final criterion of liability. Lam- bert V. Phillips & Son, 64 S. E. 945, 109 Va. 632. Instructions held not olijection- aMe Tjritliin rule. Where a charge after setting out every condition on v.'hich plaintifC's right to recover de- pended concluded with the statement that, unless the jury found the aflirm- ative of each and every fact submit- ted in that paragraph of the charge, the verdict should be for defendant, was not objectionable as giving undue emphasis, and tending to indicate the judge's view of a particular feature of the evidence. Houston & T. C. R. Co v. Rutland, 101 S. W. 529, 45 Tex. Civ.. App. 621. An instruction that if the jury believed the defendant, at the time of the alleged injury, was engaged in running street cars, it was bound to use the utmost care and diligence for the safety of its passengers, and' is liable for injuries- to its passengers, occasioned by the slightest neglect, against which hu- man prudence and foresight might have guarded, does not call tjie at- tention of the jury to any part of the evidence on the questions of negli- gence or contributory negligence. Blue Ridge Light & Power. Co. v. Price, 62 S. E. 938, 108 Va. 652 Where the issue was whether a con- tract was mutually rescinded in June, as alleged by plaintiff, and the proof showed that in November following he served on defendant a notice of rescission, and the court charged, at his request, that, if defendant aban- doned the contract before the notice, the giving of it did not restorfe to him any rights under his contract, an in- struction that, if plaintiff did not con- sider the contract abandoned until he gave the notice, a verdict should De rendered for defendant, was not ob- jectionable as calling the jury's at- tention to a particular part of the evi- dence. Darst V. Devini, 102 S. W. 787, 46 Tex. Civ. App. 311. Where, in libel, defendant relied on the de- fense of privilege in publishing a fair report of a judicial proceeding, and it appeared that a part of the proceed- ing favorable to plaintiff was omit- ted, an instruction that if defendant omitted the favorable matter to mis- lead the public, and not through inad- vertence, was not objectionable as singling out one item of evidence. Meriwether v. Publishers: Geo. Knapp & Co., 123 S. W. 1100, 224 Mo. 617. An instruction on the question of contributory negligence of one who, having crossed from the south side of a street to the north side and put a letter in the mail box of an east- bound car, was struck while recross- ing the street, and just after emerg- ing from behind such car, by an east- bound car, which tells the jury they will consider, as shown Dy the evi- dence, certain enumerated facts and circumstances, together with any oth- er fact or circumstance shown on the trial, bearing on the question, held not to single out facts favorable to plaintiff. Dow v. Des Moines City Ry. Co., 126 N. W. 918, 148 Iowa, 429. 431 INSTRUCTIONS TO JURIES 780 struction is not good practice,** and it is proper to refuse it; 97 «8 Still V. San Francisco & N. W. Ry. Co., 98 P. 672, 154 Oal. 559, 20 L. R.' A. (N. S.) 322, 129 Am. St. Eep. 177; Anfenson v. Banks, 163 N. W. 608, 180 Iowa, 1066, L. R. A. 1918D, 482 ; Gray v. Chicago, R. I. & P. Ry. Co., 139 N. W. 934, 160 Iowa, 1; State V. Newlin, 182 P. 133, 92 Or. 589. 97 U. S. Rio Grande W. Ry. Co. V. Leak, 163 U. S. 280, 16 S. Ct. 1020, 41 L. Ed. 160; (C. O. A. Kan.) Con- necticut ITut. Mfe Ins. Co. v. Hillmon, 107 F. 884, 46 C. C. A. 668, reversed! 23 S. Ct. 294, 188 U. S. 208, 47 L. Ed. 446 ; (C. C. A. Mich.) Arnold v. Hor- rigan, 238 F. 39, 151 C. C. A. 115; (C. C. A. Minn.) Chicago, M. & St. P. Ry. Co. V. Anderson, 168 F. 901, 94 C. C. A. 241 ; (C. C. A. Mo.) Northern Central Coal Co. v. Barrowman, 246 F. 906, 159 C. C. A. 178. Ala. Kuykendall v. Bdmondson, '77 So. 24, 200 Ala. 650; Huntsville Knitting Mills v. Bntner, 76 So. 54, 200 Ala. 288; Southern Ry. Oo. v. Hayes, 73 So. 945, 198 Ala. 601 ; Kel- ler V. Jones & Weeden, 72 So. 89, 196 Ala. 417 ; CounciU v. Mayhew, 55 So. 314, 172 Ala. 295; Alabama Steel & Wire Co. v. Tallant, 51 So. 835, 165 Ala. 521; Western Union Telegraph Co. V. Benson, 48 So. 712, 159 Ala. 254; Drennen v. Satterfield, 24 So. 723, 119 Ala. 84. Ark. Jenkins v. Quick, 151 S. W. 1021, 105 Ark. 467. Conn. Pratt v. Dunlap, 82 A. 195, 85 Conn. 180; Tetreault v. Smedley Co., 71 A. 786, 81 Conn. 556. D. C. Sullivan v. Capital Traction Co., 34 App, D. C. 358; Ttirner v. American Security & Trust Co., 29 App. D. C. 460. Ga. Georgia Ry. & Electric Co. v. Gatlin, 82 S. E. 888, 142 Ga. 293. m. Nolte V. Nolte, 190 III. App. 469 ; Martini v. Donk Bros. Coal & Coke Co., 169 111. App. 139 ; Nave v. Gross, 162 111. App. 83; Haywood v. Bering Coal Co., 145 111. App. 506; Wilkinson v. .astna Life Ins. Co., 144 111. App. 38, judgment affirmed 88 N. E. 550, 240 111. 205, 25 L. R. A. (N. S.) 1256, 130 Am. St. Rep. 269. Ind. Cottrell v. Shadley, 77 Ind. 348. Iowa. Case v. Chicago Great West- em Ry. Co., 126 N. W. 1037, 147 Iowa, 747 ; Hanrahan v. O'Toole, 117 N. W. 675, 139 Iowa, 229. Kan. Kerr v. Coberly, 105 P. 520, 81 Kan. 376 ; Smart v. Missouri Pac. Ry. Co., 102 P. 253, 80 Kan. 438. Ky. Chesapeake & O. Ry. Co. v. Lang's Adm'x. 133 S. W. 570, 141 Ky. 592; Louisville & N. R. Co. v. Uelt- schi's Ex'rs, 97 S. W. 14, 29 Ky. Law Rep. 1136. Md. Earp V. Phelps, 87 A. 806, 120 Md. 282; Stouffer v. Alford, 73 A. 387, 114 Md. 110. Mass. Doherty v. Phoenix Ins. Co., 112 N. E. 940, 224 Mass. 310; Grier V. Guarino, 101 N. B. 981, 214 Mass. 411; O'Brien v. Shea, 95 N. E. 99, 208 Mass. 528, Ann. Cas. 1912A, 1030 ; Carroll v. Boston Elevated Ry. Co., 86 N. E. 793, 200 Mass. 527; Lufkin V. Lufkin, 65 N. E. 840, 182 Mass. 476, dismissed' 192 U. S. 601, 24 S. Ct. 849, 48 L. Ed. 583 ; Gunthor v. Gun- ther, 63 N. E. 402, 181 Mass. 217; Peck V. Clark, 142 Mass. 436, 8 N. E. 335. Mich. Wood V. Standard Drug Store, 157 N. W. 403, 190 Mich. 654 ; Silverstone v. London Assur. Corpo- ration, 153 N. W. 802, 187 Mich. 333 ; Philpott V. Kirkpa trick, 137 N. W. 232, 171 Mich. 495; Beurmaim v. Van Buren, 7 N. W. 67, 44 Mich. 496. Minn. Brown v. Chicago & N. W. Ry. Co., 152 N. W. 729, 129 Minn. 347 ; Froberg v. Smith, 118 N- W. 57, 106 Minn. 72. Mo. Pasche v. South St. Joseph Town-Site Co. (App.) 190 S. W. 30; Smith V. Jefferson Bank, 126 S. W. 810, 147 Mo. App. 461 ; Lowenstein V. Missouri Pac. Ry. Co., 119 S. W. 430, 134 Mo. App. 24; Lohmeyer v. St. Louis Cordage Co., 119 S. W. 49, 137 Mo. App. 624, transferred from the Supreme Court 113 S. W. 1108, 214 Mo. 685 ; Dobbs v. Gates' Estate, 60 Mo. App. 658. Mont. Albertlni v. Linden, 123 P. 400, 45 Mont. 398. • N. H. MInot V. Boston & M. R. E., 66 A. 825, 74 N. H. 230. 781 FORMAL MATTERS §431 this rule applying in criminal cases.*** Such instructions tend to invade the province of the jury and to mislead them.®* Or. Service v. Sumpter Valley Ey. Co., 171 P. 202, 88 Or. 554 ; Crossen V. Oliver, 69 P. 308, 41 Or. 505. S. C. Carr v. Mouzon, 68 S. E. 661, 86 S. O. 461. Tenn. Gulf Compress Co. v. Insur- ance Co. of Pennsylvania, 167 S. W. 859, 129 Tenn. 586. Tex. Panhandle & S. F. Ry. Co. v. Morrison (Civ. App.) 191 S. W. 138; Houston & T. 0. R. Co. v. Lindsey (Civ. App.) 175 S. W. 708 ; Van Zandt- Moore Iron Works v. Axtell, 126 S. W. 930, 58 Tex. Civ. App. 353; Galves- ton, H. & S. A. Ey. Co. v. Fitzpatrick (Civ. App.) 91 S. W. 355. Vt. G. E. Bianchi Granite Co. v. Terre Haute Monument Co., 99 A. 875, 91 Vt. 177; Maidment v. Frazier, 98 A. 987, 90 Vt. 520. Va. New York, P. & N. R. Co. v. Thomas, 92 Va. 606, 24 S. E. 264. W. Va. Daniels v. Charles Boldt Co., 88 S. E. 613, 78 W. Va. 124. ■Wis. Mickuczauski v. Helmholz Mitten Co., 134, N. W. 369, 148 Wis. 153; Fidelity Trust Co. v. Wiscon- sin Iron & Wire Works, 129 N. W. 615, 145 Wis. 385. 98 TJ. S. Perovich v. United States, 27 S. Ct. 456, 205 U. S. 86, 51 L. Ed. 722 ; Bird v. United States, 23 S. Ct. 42, 187 U. S. 118, 47 L. Ed. 100; (C. C. A. Mo.) Colbum v. United States, 223 F. 590, 139 C. C. A. 136, certiorari denied 36 S. Ct. 163, 239 U. S. 643, 60 L. Ed. 483; Weddel v. United States, 213 F. 208, 129 C. C. A. 552 ; (C. O. A. Okl.) Dosset V. United States, 248 F. 902, 161 O. C. A. 20 ; Stout v. United States, 227 F. 799, 142 C. O. A. 323, certiorari denied 36 S. Ct. 549, 241 U. S. 664, 60 L. Ed. 1227. Ala. Madry v. State, 78 So. 866, 201 Ala. 512; Franklin v. State, 78 So. 411, 16 Ala. App. 417 ; Lavcson v. State, 76 So. 411, 16 Ala. App. 174; MiUer v. State, 75 So. 819, 16 Ala. App. 143 ; Pealy v. City of Birming- ham, 73 So. 296, 15 Ala. App. 367; Coplon V. State, 73 So. 225, 15 Ala. App. 331, certiorari denied 74 So. 1005, 199 Ala. 698; Brown v. State, 72 So. 757, 15 Ala. App. 180, writ of certiorari denied 73 So. 999, 198 Ala. 689; Madison v. State, 71 So. 706, 196 Ala. 590; Cunningham v. State, 69 So. 982, 14 Ala. App. 1 ; Burton v. State, 69 So. 913, 194 Ala. 2 ; James V. State, 69 So. 569, 193 Ala. 55, Ann. Oas. 1918B, 119; Ezzell v. State, 68 So. 578, 13 Ala. App. 156; Eagsdale V. State, 67 So. 783, 12 Ala. App. 1; Maxwell v. State, 67 So. 772, 12 Ala. App. 212; McWilUams v. State, 67 So. 735, 12 Ala. App. 92; Henderson V. State, 65 So. 721, 11 Ala. App. 37 ; Hooten v. State, 64 So. 200, 9 Ala. App. 9 ; Clayton v. State, 64 So. 76, , 185 Ala. 13 ; Baton v. State, 63 So. 41, 8 Ala. App. 136 ; Brooks v. State, 62 So. '569, 8 Ala. App. 277, judgment re- versed 64 So. 295, 185 Ala. 1 ; Dunn v. State, 62 So. 379, 8 Ala. App: 382; Jones V. State, 61 So. 434, 181 Ala. 63; Parker v. State, 60 So. 995, 7 Ala. App. 9; Hosey v. State, 59 So. 549, 5 Ala. App. 1; Kirby v. State, 59 So. 374, 5 Ala. App. 128 ; Gardner V. State, 58 So. 1001, 4 Ala. App. 131 ; Pope V. State, 57 So. 245, 174 Ala. 63 ; Montgomery v. State, 56 So. 92, 2 Ala. App. 25; Herndon v. State, 56 So. 85, 2 Ala. App. 118; Goodwin v. State, 56 So. 29, 1 Ala. App. 136; Cardwell v. State, 56 So. 12, 1 Ala. App. 1; Coates v. State, 56 So. 6, 1 Ala. App. 35 ; Bailey v. State, 53 So. 296, 390, 168 Ala. 4 ; Griffin v. State, 50 So. 962, 165 Ala. 29; Degg v. State, 43 So. 484, 150 Ala. 3 ; Tribble V. State, 40 So. 938, . 145 Ala. 23 ; Teague v. State, 40 So. 312, 144 Ala. 42; Whatley v. State, 39 So. 1014, 144 Ala. 68 ; Nordan v. State, 39 So. 406, 9» 111. Chesney v. Meadows, 90 111. 430. Iowa. Doyle v. Burns, 114 N. JV. 1, 138 Iowa, 439. Kan. Haines v. Goodlander, 84 P. 986, 73 Kan. 183. Ky. Jones v. Jones, 43 S. W. 412, 102 Ky. 450, 19 Ky. Law Eep. 1516. N. Y. Kennedy v. National Jewel- ers' Board of Trade, 162 N. Y. S. 635, 175 App. Div. 735 ; McKenna v. Snare & Triest Co., 133 N. Y. S. 107, 147 App. Div. 855. §431 INSTRUCTIONS TO JURIES 782 143 Ala. 13; Eoss v. State,. 36 So. 718, 139 Ala. 144 ; Thayer v. State, 35 So. 406, 138 Ala. 39 ; Vaughn v. State, 30 So. 669,, 130 Ala. 18 ; Willingham v. State, 30 So. 429, 130 Ala. 35 ; Mitch- ell V. State, 30 So. 348, 129 Ala. 23; Huskey v. State, 29 So. 838, 129 Ala. 94; Frost v. State, 27 So. 550, 124 Ala. 71 ; McLeroy v. State, 25 So. 247, 120 Ala. 274; King v. State, 25 So. 178, 120 Ala. 329; Durrett v. State, 62 Ala. 434. Ark. McKinney v. State, 215 S. W. 723, 140 Ark. 529; Lee v. State, 172 S. W. 1025, 116 Ark. 588 ; Jack- son V. State, 145 S. W. 559, 103 Ark. 21 ; Newton v. State, 37 Ark. 333. Cal. People v. Layden, 153 P. 1164, 28 Cal. App. 805; People v. Morrell, 153 P. 977, 28 Cal. App. 729; People V. Converse, 153 P. 734, 28 Cal. App. 687 ; People v. Hawes, 98 Cal. 648, 33 P. 791. ria. Hall V. State, 83 So. 513, 78 Fla. 420, 8 A. L. E. 1234; Graham t. State, 73 So. 594, 72 Fla. 510 ; Hisler V. State, 42 So. 692, 52 Fla. 30 ; Wil- son V. State, 36 So. 580, 47 Fla. 118; Baldwin v. State, 35 So. 220, 46 Fla. 115. Ga. Harrell v. State, 49 S. E. 703, 121 Ga. 607; Hodgkins v. State, 89 Ga. 761, 15 S. E. 695. 111. People V. Pezutto, 99 N. EX 677, 255 111. 583; People v. Strauch, 93 N. E. 126, 247 111. 220 ; People v. Campbell, 84 N. B. 1035, 234 111. 391, 123 Am. St. Eep. 107, 14 Ann. Cas. 186; Clark v. x-eople, 79 N. E. 941, 224 111. 554; Sanders v. People, 124 III. 218, 16 N. E. 81 ; Hoge v. People, 117 111. 35, 6 N. E. 796; Mullins v. Peo- ple, 110 111. 42; People v. Tyhalen, 151 111. App. 16; Grafe v. People, 108 111. App. 168, judgment afiHrmed 70 N. E; 299, 208 111. 312 ; Ohermark v. People, 24 111. App. 259. Ind. Leseuer v. State, 95 N. E. 239, 176 Ind. 448; Wachstetter v. State, 99 Ind. 290, 50 Am. Eep. 94. Iowa. State v. Wilson, 144 N. W. 47, 166 Iowa, 309, rehearing denied 147 N. W. 739, 166 Iowa, 309. Kan, State v. Adams, 132 P. 171, 89 Kan. 674. Ky. Ware v. Commonwealth, 131 S. W. 269, 140 Ky. 534; Stuart v. Commonwealth, 105 S. W. 170, 31 Ky. Law Eep. 1343; Commonwealth v. Thomas, 104 S. W._326, 31 Ky. Law Rep. 899; Tines v. Commonwealth, 77 S. W. 363, 25 Ky. Law Eep. 1233 ; Eay V. Commonwealth, 43 S. W. 221, 19 Ky. Law Rep. 1217; Commonwealth V. Gray, 30 S. W. 1015, 17 Ky. Law Eep. 354 ; Commonwealth v. Delaney, 29 S. W. 616, 16 Ky. Law Rep. 509; Commonwealth v. Hourigan, 89 Ky. 305, 12 S. W. 550; Arnold v. Com- monwealth, 3 Ky. Law Rep. (abstract) 394. I^. State V. Mehojovich, 43 So. 660, 118 La. 1013. Mass. Commonwealth v. Sherman, 124 N. B. 423, 234 Mass. 7 ; Common- wealth V. Borasky, 101 N. B. 377, 214 Mass. 313; Commonwealth v. Min Sing, 88 N. B. 918, 202 Mass. 121; Commonwealth v. Kronick, 82 N. E. 39, 196 Mass. 286; Commonwealth v. Cosseboom, 155 Mass. 298, 29 N. B. 463. Micli, People V. Finley, 38 Mich. 482. Mo. State V. Bowman, 213 S. W. 64, 278 Mo. 492; State v. Pate, 188 S. W. 139, 268 Mo. 431; State v. Lew- is, 175 S. W. 60, 264 Mo. 420 ; State v. Rogers, 161 S. W. 770, 253 Mo. 399; State V. Eaftery, 158 S. W. 585, 252 Mo. 72; State v. Holmes, 144 S. W. 417, 239 Mo. 469; State v. Chinn, 133 S. W. 1196, 153 Mo. App. 611; State V. Mitchell, 129 S. W. 917, 229 Mo. 683, 138 Am. St. Eep. 425; State V. Shelton, 122 S. W. 732, 223 Mo. 118; State v. Hibler, 149 Mo. 478, 51 S. W. 85; State v. Cantlin, 118 Mo. 100, 23 S. W. 1091. Mont. State V. Jones, 80 P. 1095, 32 Mont. 442. Neb. Chapman v. State, 86 N. W. 907, 61 Neb. 888. Nev, State V. Ward, 19 Nev. 297, 10 P. 133. N. J. State y. Labriola, 67 A. 386, 75 N. J. Law, 483. Or. State v. Ausplund, 167 P. 1019, 86 Or. 121, judgment affirmed on rehearing 171 P. 395, 87 Or. 649. Pa. Commonwealth v. Meads, 29 Pa. Super. Ct. 321. Tex. Collins v. State, 178 S. W. 345, 77 Tex. Cr. R. 156 ; De Rossett v. State, 168 S. W. 531, 74 Tex. Cr.' R. 235 ; Cunningham v. State, 166 S. W. 783 FORMAL MATTERS §431 519, 73 Tex. Cr. R. 565; Gillespie v. State, 166 S. W. 135, 73 Tex. Cr. R. 585; Minter v. State, 159 S. W. 286, 70 Tex. Cr. R. 634 ; Tucker v. State, 150 S. W. 190, 67 Tex. Or. R. 510; Barber v. State, 142 S. W. 577, 64 Tex. Cr. R. 96 ; Allen v. State, 141 S. W. 983, 64 Tex. Cr. R. 225; Harrel- son V. State, 132 S. W. 783, 60 Tex. Cr. R. 534; Roquemore v. State, 129 S. W. 1120, 59 Tex. Cr. R. 568; Moore V. State, 128 S. W. 1115, 59 Tex. Cr. R. 361; Canon v. State, 128 S. W 141, 59 Tex. Cr. R. 398 ; Wadkins v. State, 124 S. W. 959, 58 Tex. Cr. R. 110, 137 Am. St. R«p. 922, 21 Ann. Cas. 556; Brown v. State, 124 g. W. 101, 57 Tex. Cr. R. 570; Green v. State, 111 S. W. 933, 54 Tex. Cr R. 3 ; Green v. State, 105 S. W. 205, 52 Tex. Cr. R. 44; Carroll v. State, 98 S. W. 859, 50 Tex. Cr. R. 485, 123 Am. St. Rep. 851, 14 Ann. Oas. 426; Preston v. State, 53 S. W. 127, 41 Tex. Cr. R. 300, rehearing denied 53 S. W. 881, 41 Tex. Cr. R. 300; Smith V. State (Or. App.) 49 S. W. 583. Va. Montgomery v. Common- wealth, 37 S. E. 1, 98 Va. 852. Wasb. State v, Sefrit, 144 P. 725, 82 Wash. 520. W. Va. State v. Dodds, 46 S. E. 228, 54 W. Va. 289; State v. Morri- son, 38 S. B. 481, 49 W. Va. 210; State V. Morgan, 35 W. Va; 260, 13 S. E. 385. Illustrations of instructions im- proper within rule. In a murder prosecution, where the state's theory was that decedent was intoxicated and had created a disturbance among accused's tenants, but was departing peaceably and without disturbance when accused shot him, an instruction that, though decedent went upon ac- cused's premises uninvited and creat- ed a disturbance, if he had ceased to m^ke a disturbance and was leaving peaceably, accused could not shoot him for the previous disturbance, and, if he willfully, of his malice afore- thought, shot decedent while he was leaving the premises because of the previous trouble, he would be guilty of murder, was erroneous as unduly emphasizing parts of the evidence. Gordon v. State, 49 So. 609, 95 Miss. 543. Where the court in its charge on manslaughter did not limit the provo- cation to the time of the killing, but directed the jury to consider all the facts in evidence in determining whether accused's mind was moved by that degree of anger, rage, sudden resentment, or terror, as to render it incapable of cool reflection, it was not error to refuse to specially charge that the jury should consider the threats made by decedent against ac- cused, and thus select out of a large number of circumstances detailed in evidence a particular circumstance. Giles V. State, 132 S. W. 359, 60 Tex. Cr. R. 436. An instruction on a trial of a registered pharmacist for keep- ing a drug store for the unlawful sales of liquors that if he sells intoxi- cating liquors indiscriminately and for a beverage, he is guilty, and it is his duty to make 'such sales as the law permits "in perfect good faith — mark the language, not good faith, but perfect good faith"- — is erroneous for emphasizing the requirement of good faith in making sales. People V. Thompson, 111 N. W. 96, 147 Mich. 444. In a prosecution for theft, where a letter claimed to have been written by defendant and placed in a room of the owner of the stolen prop- erty was introduced in evidence, wherein defendant admitted taking the ring and stated what disposition he made of it, etc., a requested charge that unless the jury believed that de- fendant-wrote the letter and that it was intended for the owner of the ring, there being nothing in the letter indicating that fact, it should not be considered as in evidence, was errone- ous, as singling out an isolated fact and charging the jury thereon; the court having elsewhere properly charged on the doctrine of reasonable doubt. Kauffman v. State, 109 S. W. 172, 53 Tex. Cr. R. 209. Instrnctions held not objection- able within rule. In prosecution for abortion, an Instruction that weight of expert testimony as to con- dition of an anatomical exhibit de- pended on whether or not a substitu- tion or alteration had been effected, did not warrant a reversal on ground that it singled out and unduly em- phasized that feature of matter. State V. Patterson, 181 P. 609, 105 §432 INSTEUCTIONS TO JUKIB3 784 § 432. Applications of rule It is error to single out certain facts and state their effect apart from the rest of the evidence,^ and an instruction which does this Kan. 9. On a prosecution for assault with intent to rape, where the fact that defendant induced prosecutrix to enter his buggy by a promise to take her home after she had refused was undisputed, and the defendant testi- fied that his purpose in taking her to ride was to solicit her to intercourse, a charge that if the jury were satis- fied beyond a reasonable doubt from the evidence that defendant induced prosecutrix to enter his buggy under the inducement that he would take her home, and that after he got her ' in the buggy he took hold of her with intent to have intercourse with her, and against her will, and with an in- tent to accomplish his object at all events, by his strength and power,^ against any resistance she might of- fer, then he was guilty of assault with intent to rape, whether he suc- ceeded in his purpose or not, was not objectionable as giving undue promi- nence to the fact that defendant in- duced prosecutrix to enter his buggy under a promise to take her home. Donovan v. People, 74 N. B. 772, 215 lU. 520. 1 Ala. Brand v. State, 69 So. 379, 13 Ala. App. 390; Donald v. State, 67 So. 624, 12 Ala. App. 61; MaxweU V. State, 65 So. 732, 11 Ala. App. 53 ; Birmingham Ry., Light & Power Co. V. Hunnicutt, 57 So. 262, 3 Ala. App. 448; Rickert v. Touart, 56 So. 70S, 174 Ala. 107; Flowers v. State, 56 So. 36, 1 Ala. App. 262 ; Birmingham Ry., Light & Power Co. v. Wright, 44 So. 1037, 153 Ala. 99; Aaron v. State, 39 Ala. 684. Cal, People V. Sanders, 46 P. 153, 114 Cal. 216. D. C. Bradford v. National Ben. Ass'n, 26 App. D. C. 268. Idaho. State v. Jones, 154 P. 378, 28 Idaho, 428. 111. Logg v. People, 92 111. 598; Johnson v. City of Chicago, 189 111. App. 32 ; Chicago Union Traction Co. V. Ertrachter, 130 111. App. 602, judg- ment affirmed 81 N. B. 816, 228 111. 114; Faulkner v. Birch, 120 111. App. 281; Strehmann v. City of Chicago, 93 lU. App. 206. Kam. Warren Mortg. Co. v. Schick, 107 P. 536, 82 Kan. 90. Ky. Williams v. Commonwealth, 9 Bush, 274 J Maden v. Common- wealth, 4 Ky. Law Rep. 45. Mass. Commonwealth v. Gay, 153 Mass. 211, 26 N. E. 571. Miss. Stringer v. State, 38 So. 97. Mo.. State V. Shaffer, 161 S. W. 805, 253 Mo. 320; Hatfield v. Swift, 161 g. W.«359, 174 Mo. App. 705 ; Dis- brow V. People's Ice, Storage & Fuel Co., 119 S. W. 1007, 138 Mo. App. 56; State V. Williams, 136 Mo. 293, 38 S. W. 75 ; Meyer v. Pacific R. R., 40 Mo. 151. Op. Kellogg v. Ford, 139 P. 751, 70 Or. 213. S. C. Finch v. Atlantic & C. Air Line Ry., 69 S. E. 208, 87 S. O. 190. Tex. Hahn v. State, 165 S. W. 218, 73 Tex. Cr. R. 409 ; Brewster v. State (Cr. App.) 165 S. W. 224; Smith v. State, 164 S. W. 825, 73 Tex. Cr. R. 129; Mims v. State, 153 S. W. 321, 68 Tex. Or. R. 432; Moore v. State, 128 S. W. 1115, 59 Tex. Cr. E. 361; Hawkins v. State, 126 S. W. 268, 58 Tex. Cr. R. 407, 137 Am. St. Rep. 970; Beard v. State, 123 S. W. 147, 57 Tex. Cr. R. 323 ; Green v. State, 120 S. W. 1002, 56 Tex. Cr. R. 599 ; Cordes v. State, 112 S. W. 943, 54 Tex. Cr. R. 204 ; Rice v. State, 94 S. W. 1024, 49 Tex. -Cr. R. 569 ; Howard v. State, 18 Tex. App. 348. W. Va. Parfitt y. Sterling Veneer & Basket Co., 69 S. E. 985, 68 W. Va. 43& Instructions objectionablel xvitb- in rule. An instruction that testa- trix had previously executed similar wills and was then of sound mind, and that such fact did not necessarily establish her sanity when executing the will in question. In re Clark's Estate (Cal.) 181 P. 689. Where de- fendant charged with larceny in com- pelling the delivery to her of money alleged to have been stolen from- her, proved declarations tending to show 785 FORMAL MATTERS §432 is properly refused." Instructions singling out certain facts bear- ing on an issue, and telling the jury that they may or should con- sider such facts in determining such issue,* although the jury the absence of felonious intent on her part, an instruction thai absence of felonious intent was a question for the jury, but that "her mere declara- tion was not conclusive evidence thereof," was erroneous as giving un- due prominence to the particular evi- dence. State V. Brandau, 76 Mo. App. 305. Instmctions not improper iritlL- in rule. It being in evidence that deqeased was killed with a knife, an instruction that an intention to kUl might be inferred from the "use of a knife capable of inflicting a mor- tal wound," with which four or five' wounds were made, so that deceased died almost immediately, but that, if death had resulted from some oth- er cause, "the Inference of the intent to kiU might well be different," does not single out the evidence nor give it too much emphasis. Evans v. State, 62 Ala. 6. Stating effect of particnlar fact "independently of any other tes- timony." Instructions to the jury as to the effect of a particular fact in the case, "independently of any other testimony," and other sugges- tions as to the insufficiency of such fact for a particular purpose, with- out other evidence, are not to be re- garded as erroneous, although there was other evidence on the point in question, where the court fn other parts of the charge distinctly refer- red! such evidence to the jury, and therp was no request for further or more specific instructions, nor any suggestion that the case had been so presented as to lead the jury to over- look or disregard such evidence. Wass V. Atwater, 33 Minn. 83, 22 N. W. 8. Effect of direction to consider all the evidence. The court, after directing the jury to consider all the evidence, does not err in singling out certain matters, and saying that these in themselves are insufficient to es- tablish either claim of contestant. In re Goldthorp's Estate, 88 N. W. 944, 115 Iowa, 430. 2 IT. S. Coffin V. United States, 162 U. S. 664, 16 Sup. Ct 943, 40 L. Ed. 1109; (C. O. A. Mass.) Boston Ele- vated Ry. Co. V. Teele, 248 F. 424, 160 C. C. A. 434; (C. C. A. Tenn.) Louisville & N. E. Co. v. Bell, 206 F. 395, 124 C. C. A. 277. Ala. Montgomerj' Moore Mfg. Co. V. Leeth, 50 So. 210, 162 Ala. 246; Hays V. State, 46 So. 471, 155 Ala. 40; Parrish v. State, 36 So. 1012, 139 Ala. 16. Ark. Holland Banking Co. v. Booth, 180 S. W. 978, 121 Ark. 171. Cal. People v. Owens, 56 P. 251, 123 Cal. 482; People v. Reed, 52 P. 835, 120 Cal. xvii. ni. Eckels V. Muttschall, 82 N. B. 872, 230 111. 462; Healy v. Chi- cago City Ry. Co., 196 111. App. 1; Schoch V. Egan, 144 111. App. 214. Md. United Rys & Electric Co. v. Corbin, 72 A. 606, 109 Md. 442. Mass. Jacobsen v. Simons, 111 N. B. 46, 222 Mass. 449; Nicholson v. Feindel, 107 N. E. 353, 219 Mass. 490 ; Roach V. Hinchcliff, 101 N. E. 383, 214 Mass. 267; Morrin v. Manning, 91 N. E. 308, 205 Mass. 205 ; Old Col- ony Trust Co. V. Bailey, 88 N. E. 898, 202 Mass. 283. Mo. Boyce v. Chicago & A. Ry. Co., 96 S. W. 670, 120 Mo. App. 168. Tex. Wolf Cigar Stores Co. v. Kramer, 109 S. W. 990, 50 Tex. Civ. App. 411. Utah. Condie v. Rio Grande West- ern Ry. Co., 97 P. 120, 34 Utah, 237. Wis. Hackett v. Wisconsin Cent. Ry. Co., 124 N. W. 1018, 141 Wis. 464. ' 3 Ala. Chappell v. State, 73 So. 134, 15 Ala. App. 227; Strother v. State, 72 So. 566, 15 Ala. App. 100; Ragsdale v. State, 67 So. 783, 12 Ala. App. 1 ; Sandlin v. Anders, 65 So. 376, 187 Ala. 473 ; Smith v. State, 62 So. 184, 182 Ala., 38; Powell v. State, 59 So. 530, 5 Ala. App. 75 ; Pope v. State, 53 So. 292, 168 Ala. 33 ; McDonald v, State, 51 So. 629, 165 Ala. 85; Mon- Inst.to Juries— 50 §432 INSTRUCTIONS TO JURIES 786 are also told that they should consider such facts along with all the other evidence,* are erroneous, and are properly refused. teith V. State, 49 So. 777, 161 Ala. 18 ; Davis V. State, 44 So. 561, 152 Ala. 25 ; Kirby v. State, 44 So. 38, 151 Ala. 66; Griffin v. State, 43 So. 197, 150 Ala. 49 ; Montgomery St. Ry. v. Rice, 38 So. 857, 142 Ala, 674, 144 Ala. 610 ; Southern Bell Telephone & Telegraph Co. V. Mayo, 33 So. 16, 134 Ala. 641 ; Postal Tel. Cable Co. v. Jones, 32 So. 500, 133 Ala. 217 ; Winter v. State, 31 So. 717, 132 Ala. 32 ; Gilmore v. State, 28 So. 595, 126 Ala. 20; Hicks v. .^tate, 26 So. 337, 123 Ala. 15 ; Jeffer- son V. State, 110 Ala. 89, 20 So. 434 ; Williams v. State, 98 Ala. 52, 13 So. 333; Hussey v. State, 86 Ala. 34, 5 So. 484. Ark. Gilchrist v. State, 140 S. W. 260, 100 Ark. 330. Cal. In re Martin's Estate, 151 P. 138, 170 Cal. 657; People v. Loomls, 149 P. 581, 170 Oal. 347. 111. Coon V. People, 99 lU. 368, 39 Am. Rep. 28 ; Illinois Cent. R. Co. V. Whiteaker, 122 111. App. 333. Iowa. Swiney v. American EJx- press Co., 115 N. W. 212, 144 Iowa, 342. Ky. International Harvester Co. of America v. Commonwealth, 146 S. W. 12, 147 Ky. 795, judgment re- versed 34 S. Ct. 853, 234 U. S. 216, 58 L. Bd. 1284; International Harvester Co. of America v. Commonwealth, 144 S. W. 1064, 147 Ky. 564 ; Id., 147 S. W. 1199, 148 Ky. 572, judgment re- versed 34 S. Ct. 853, 284 U. S. 216, 58 li. Ed. 1284; Parker v. Common- wealth, 51 S. W. 573, ,21 Ky. Law Rep. 400; Blswlck v. Commonwealth, 13 Bush, 155. Miss. Lucas v. State, 67 So. 851, 109 Miss. 82. Mo. State V. Malloch, 190 S. W., 266, 269 Mo. 235. Tex. Stewart v. State, 153 S. W. 1150, 69 Tex. Cr. R. 337 ; Parnell v. State, 103 S. W. 907, 51 Tex. Or. R. 620 ; Dobbs v. State, 100 S. W. 946, 51 Tex. Cr. R. 113; Galveston, H. & S. A. Ry. Co. Y. Kutac, 76 Tex. 473, 13 S. W. 327. Instructions held improper within mle. An instruction, that if accused attempted to corrupt witness- es for the state, or to pay them to absent themselves, and thus deprive the state of their testimony, it was the jury's duty to consider such mat- ters in determining defendant's guilt or innocence. State v. Tawney, 105 P. 218, 81 Kan. 162, 135 Am. St. Rep. 355. Instructions, in a murder trial that, in determining whether accus- ed's flight from the scene of the hom- icide was from a sense of guilt, the jury should consider the fact, if it was a fact, together with all the evi- dence in the case, that accused sur- rendered himself to a deputy sher- iff, and that the fact, if it was a fact, that the state failed to prove a motive on accused's part for the hom- icide, was a circumstance to which the jury might look in connection with all the evidence. Way v. State, 46 So. 273, 155 Ala. 52. In murder prosecution, defended on ground of temporary insanity, instruction that jury, in determining whether defend- ant was overcome by sudden passion upon seeing deceased, should consider, if it found such facts, that defend- ant on that day attended to business affairs rationally, and immediately before and after homicide was observ- ed to be calm and unconcerned, was Improper, giving undue prominence to particular facts. Stephens v. State, 4 Ala. Stewart v. State, 34 So. 818, 137 Ala. 33 ; Birmingham Southern R. Co. V. Cuzzart, 31 So. 979, 133 Ala. 262. Cal. Still V. San Francisco & N. W. Ry. Co., 98 P. 672, 154 Cal. 559, 20 L. R. A. (N. S.) 322, 129 Am. St. Rep. 177. 111. Scott V. People, 141 111. 195, 30 N. E. 329; Wallace v. City of Parmington, 83 N. E. 180, 231 111. 232. Ky. Stokes' Ex'r v. Shippen, 13 Bush, 180. Mo. Landrum v. St. Louis & S. F. R. Co., 112 S. W. 1000, 132 Mo. App. 717. Contra, Bngvall v. Des Moines City Ry. Co., 121 N. W. 12, 145 Iowa, 56i0; Gordon v. Burris, 54 S. W. 546, 153 Mo. 223. 787 FORMAL MATTERS §432 In a criminal case an instruction should not single out a part only of the facts testified to and make guilt dependent on them alone,^ and it is not the duty of the court to point out isolated items of evidence, and instruct the jury that these several items do not authorize conviction.' Where a charge asked isolates cer- tain enumerated facts or circumstances, and invokes instructions of the court on them as circumstances to be specially weighed in the case, the court, if it gives the charge, should accompany it with a fair and candid statement of any facts and circumstances pointing in an opposite direction.' The above rule has been applied, tp instructions which single out the proof of motive or absence of motive,* and to instructions singling out and giving undue prom- inence to evidence on the defense of alibi® and on the good char- acter of the defendant.^* Under this rule an instruction that the- jury may, on the issue of the insanity of the accused, consider his 176 P. 579, 20 Ariz. 37. A charge, in a carpenter's action for personal in- juries by the roof of a building on which he was working falling upon him, that the jury should look to plaintiff's evidence, in connection with the other evidence, that he thought it was dangerous to remain under the roof while unfastening the last joist, in order to determine whether plaintiff acted prudently in removing the fastenings while under the roof. Louisville & N. K. Co. v. Handley, 56 So. 539, 174 Ala. 593. An instruction that in determining whether a motor- man used ordinary care they could take into consideration "the darkness of the night, the presence of weeds or grass, the speed of the car, the nat- ural excitement under which an or- dinary person would labor in coming suddenly upon a person in so great a peril." Kice v. Jefferson City Bridge & Transit Co. (Mo.) 216 S. W. 746. A charge, in prosecution for carnal abuse of a 16 year old girl, that, in passing on prosecutrix's age, the jury could consider "her size, de- velopment, and mature appearance," with other circumstances. Clark v. State, 205 S. W. 975, 135 Ark. 569. Godwin v. State, 73 Miss. 873, 19 So. 712. 6 Gatlin v. State, 49 S. W. 87, 40 Tex. Or. R. 116. 7 Barber v. State, 43 So. 808, 151 Ala. 56 ; Durrett v. State, 62 Ala. 434. 8 Scott V. State, 159 S. W. 1095, 109- Ark. 391. 9 People V. Bolik, 89 N. E. 700, 241 111. 394. 10 Ala. Pippin V. State, 73 So. 340, 197 Ala. 613; De Wyre v. State, 67 So. 577, 190 Ala. 1 ; Clayton v. State, 64 So. 76, 185 Ala. 13; Reid v. State, 61 So. 324, 181 Ala. 14; Robinson v. State, 58 So. 121, 4 Ala. App. 1 ; Col- lins V. State, 58 So. 80, 3 Ala. App. 64; Bell v. .State, 54 So. 116, 170 Ala. 16; Dorsey v. State, 110 Ala. 38, 20 So. 450. Ark. Fowler v. State, 197 S. W. 568, 130 Ark. 365. Cal. People V. Piner, 105 P. 780, 11 Cal. App. 542. Neh. Sweet v. State, 106 N. W. 31, 75 Neb. 263. Ohio. State V. Hare, 100 N. E. 825, 87 Ohio St. 204. Instructions improper ivithin rule. An instruction, in a criminal case, that, if accused has proven a good character, the same may be suf- ficient to create a reasonable doubt of his guilt; though no such doubt would have existed but for the good char- acter, is properly refused, because it gives too much prominence to a par- ticular fact in evidence, and preter- mits a consideration of that evidence in connection with all the evidence: Pate V. State, 43 So. 343, 150 Ala. 10. §432 INSTEUCTIONS TO JITEIBS 788 general conduct, condition, appearance, and language is properly- refused." On the other hand, an instruction in a criminal case should not single out evidence of circumstances against the de- fendant, and give it a marked prominence by calling the attention of the jury thereto and directing them to consider it in determining the question of his guilt.^* Thus an instruction in a homicide case ad- monishing the jury to reach a determination on the evidence, in- cluding the dying declaration of the deceased, is improper.''* It is error to single out and group certain parts of the evidence favorable to one party, to the disparagement or ignoring of other relevant and material facts favorable to his adversary," and in a criminal prosecution it is error for the court to bring out the strong points of the evidence for the state, or to forcibly impress the jury with the circumstances tending to implicate the accused, without at the same time making a corresponding statement of the poirits insisted upon by the defendant and giving similar em- phasis to the evidence on his behalf.-'® An instruction which lays greater stress upon the duty of the jury to convict if the facts constituting the offense charged are proven beyond a reasonable doubt than upon their duty to acquit if they are not so proven is erroneous.'* 11 State V. Driggera, 66 S. B. 1042, 84 S. C. 526, 137 Am. St. Rep. 855, lt> Ann. Cas. 1166. i2McAdory v. State, 62 Ala. 154; Holt V. State, 62 Ga. 314; State v. Rutherford, 53 S. "W. 417, 152 Mo. 124. 18 Jones V. Com., 216 S. W. 607, 186 Ky. 283. i4Griswold v. Home, 165 P. 318, 19 Ariz. 56, L. R. A. 1918A, 862; Flowers v. Flowers, 92 Ga. 688, 18 S. E. 1006 ; McBride v. Des Moines City Ry. Co., 109 N. "W. 618, 134 Iowa, 398 ; Demara v. Rhode Island Co. (R. I.) 103 A. 708 ; Coman v. -Wunderlich, 99 N. W. 612, 122 Wis. 138. Stating substance of testimony of witness. When the court at- tempts to state to the jury the sub- stance of a \s;itness' testimony, it should state that which supports the theories of both parties, and not give undue prominence to that favorable to one party only. Banner v. Schles- singer, 109 Mich. 262, 67 N. W. 116. 15 Ga. Baldwin v. State, 47 S. E. 558, 120 Ga. 188; Brantley v. State, 41 S. E. 695, 115 Ga. 229. Mich. People V. Clarke, 105 Mich. 169, 62 N. W. 1117; People v. Mur- ray, 40 N. W. 29, 72 Mich. 10. Miss. Prine v. State, 73 Miss. 838, 19 So. 711. N. Y. People V. Becker, 104 N. E. 396, 210 N. Y. 274. S. C. State V. Johnson, 67 S. E. 453, 85 S. O. 265. Instrnotions not erroneous with- in rnle. Where the court in Its charge directed an acquittal if the jury believed accused's theory, a charge, following a statement of the respective theories of the state and accused, that the above were the in- sistences of the state and of accused, that the jury need not accept either or any part of them, but that if the state's theory was a reasonable de- duction from all the evidence taken as a whole, and the same established the guilt of accused beyond a reason- able doubt, a verdict of guilty should be rendered, was not objectionable as giving undue prominence to the state's theory. Cooper v. State, 138 S. W. 826, 123 Tenn. 37. 18 State V. Jones, 147 N. W. 822, 126 Minn. 45. 789 FORMAL MATTERS § 433 The principle which authorizes the court, in all proper cases, to advise the jury with reference to the relative value of certain species or classes of evidence does not authorize one item of the evidence to be singled out and made the subject of special com- mendation." Thus an instruction that uncontradicted physical facts at variance with oral testimony are entitled to the greater •consideration is erroneous.^* So, where the written examination of a witness is put in evidence by the state, in a criminal prosecu- tion, it gives too much prominence to it to charge that such evi-' dance should be regarded as evidence in the case, and should be considered like the evidence of other witnesses testifying before the jury.^® So an instruction is erroneous which unduly impresses the jury with the weight of dying declaration s,**' and it is improp- er to charge that the theory of the law in admitting dying decla- rations is that a person would be just as sure to make a truthful statement when he is in the article of death as if under the obli- gation of an oath.^^ It is only proper to single out the confession of defendant in the instructions' for the purpose of submitting any issue as to whether warning was given to the defendant before he made his confession and as to whether it was voluntary.** § 433. Singling out testimony of particular witnesses Singling out particular witnesses for purpose of instructing as to credibility, see ante, §§ 183, 184. Singling out party for comment as to credibility as witness, see ant^ § 165. Singling out accused for comment as to credibility as witness, see ante, § 168. As an offshoot of the above rule it can be laid down as a gen- eral principle that it is improper to give undue prominence to the testimony of particular witnesses, by singling them out for comment as to their testimony, or by authorizing the jury to reach certain conclusions if their testimony is believed,** and such 17 In re Knox's Will, 98 N. W. 468, So. 21, 1 Ala. App. 178 ; Wingate v. 123 Iowa, 24. State, 55 So. 953, 1 Ala. App. 40; 18 Gharst v. St. Louis Transit Co., Johnson v. State, 55 So. 321, 1 Ala. 91 S. W. 453, 115 Mo. App. 403. App. 102; Louisville & N. R. Co. v. 19 Wilson V. State (Tex. Or. App.) Hurt, 101 Ala. 34, 13 So. 130; Gibson 36 S. W. 587. V. J. Snow Hardware Co., 94 Ala. 346, 20 Sewell V. State, 83 S. E. 934, 142 10 So. 304 ; Alabama G. S. R. Co. v. Ga. 798 ; Pyle v. State, 62 S. B. 540, Hill, 93 Ala. 514, 9 So. 722, 30 Am. St. 4 Ga. App. 811 ; State v. Summers, Eep. 65 ; East Tennessee V. & G. R. 92 S. E. 328, 173 N. C. 775. Co. v. Deaver, 79 Ala. 216; Adams v. 21 Darby v. State, 84 S. E. 724, 16 Thornton, 78 Ala. 489, 56 Am. Rep. iGa. App. 171; Baker v. State, 77 S. 49 ; Jordan v. Pickett, 78 Ala. 331. E 884 12 Ga. App. 553. Conn, Johnson County Sav. Bank 2 2 Jordan v. State, 101 S. W. 247, 51 v. Walker, 72 A. 579, 82 Conn. 24. Tex Cr Ri. 145. Ga. Black v. Thornton, 30 Ga. 361. 2 3 Ala. Olive V. State, 63 So. 36, 111. Grube v. Nichols, 36 111. 92; 8 Ala. App. 178; Boswell v. State, 56 Tanner v. Olapp, 139 111. App. 363; §433 INSTRUCTIONS TO JURIES 790 an instruction is properly refused.** To say that the case depends Chicago B. & Q. R. Co. v. Kuster, 22 111. App. 188. Iowa. State v. Asbury, 154 N. W. 915, 172 Iowa, 606, Ann. Cas. 1918A, 856. Micb. J. Richardson & Co. v. No- ble, 107 N. W. 274, 143 Mich. 546. Minn. State v. Yates, 109 N. W. 1070, 99 Minn. 461. Miss. Brown v. State, 32 Miss. 433. Mo. Dungan v. St. Louis & S. F. R. Co., 165 S. W. 1116, 178 Mo. App. 164 ; State v. Chinn, 138 S. W. 1196, 1.53 Mo. App. 611: Spolin v. Missouri Pac. Ey. Co., 87 Mo. 74; Iron Moun- tain Bank of St. Louis v. Murdock, 62 Mo. 70; Meyer v. Pacific R. Co., 45 Mo. 137. N. C. Wallace v. Norfolk South- ern E;. Co., 93 S. B. 731, 174 N. C. 171; State v. Home, 88 S. E. 433, 171 N. O. 787; Starling v. Selma Cotton Mills, 88 S. E. 242, 171 N. O. 222; Bowman v. Fidelity Trust & Develop- ment Co., 87 S. E. 46, 170 N. C. 301; State V. Rogers, 93 N. C. 523. Or. Church v. Melville, 17 Or. 413, 21 P. 387. Tex. Jff'arnandes v. Schiermann, 55 S. W. 378, 23 Tex. Civ. App. 343. Wasb. Sexton v. School Dist. No. 34 of Spokane County, 9 Wash. 5, 36 P. 1052. W. Va. Storrs v. Feick, 24 W. Va. 606. ' Instrnctions objectionaUe with- in rule. A charge that the evidence of the engineer' should be fairly and impartially weighed by his Intelli- gence, his manner, the consistency of his story, its probability or improb- ability, and all other tests which do or do not convince, and, if the jury believed that his evidence was true, they should find for defendant. Southern Ry. Co. v. Reaves, 29 So. 594, 129 Ala. 457. It is not error to refuse to instruct to acquit if there is a reasonable doubt whether accus- ed was present at another place as testified by him, when the alleged of- fense was committed ; such an In- struction being calculated to give un- due prominence to defendant's testi- mony. Lodge V. State, 26 So. 200, 122 Ala. 107. Ignoring important facts in case. It is improper to put a partic- ular witness into undue prominence by charging the jury to find accord- ing to their belief in his evidence, where such a charge tends to ignore Important facts in the case. Chase V. Buhl Iron Works, 55 Mich. 139, 20 N. W. 827. Instructions beld not erroneous within rule. A contention that the court erred in giving undue promi- nence to the testimony of one particu- lar witness was without merit, where his name was mentioned in the charge but once, and that on an issue which was answered as a proposition of law under an instruction of the court. Lance v. Butter, 47 S. E. 488, 135 N. C. 419. Where, in an action for ejec- tion from a car, a number of disin- terested witnesses gave contradictory testimony, and difCerent from that of the passenger, as to what occurred between the passenger and the con- ductor, it was not error to instruct the jury to consider the probability or improbability of such testimony, as singling out this phase of the case to defendant's prejudice. Bowsher v. 2* Alfl,. Davis V. State, 44 So. 545, 152 Ala. 82 ; Louisville & N. R. Co. v. Perkins, 39 So. 305, 144 Ala. 325; Wells V. State, 31 So. 572, 131. Ala. 48; Louisville & N. R. Co. v. Morgan, 22 So. 20, 114 Ala. 449. Colo. City and County of Denver V. Monroe, 121 P. 684, 21 Colo. App. 312. 111. Donahue v. Egan, 85 111. App. 20; Johnston v. Hirschberg, 85 111. App. 47. Ky. Paducah Water Supply Co. v. Paducah Lumber Co., 14 Ky. Law Rep. (abstract) 141. Mich. Silverstone v. London As- sur. Corporation, 142 N. W. 776, 176 Mich. 525 ; People v. Pope, 108 Mich. 361, 66 N. W. 213. Miss. Mississippi Cent. R. Co. v. Hardy, 41 So. 505, 88 Miss. 732. Neb. Souchek v. Karr, 120 N. W. 210, 83 Neb. 649. N. C. Cogdell V. Southern Ry. Co., 40 S. E. 202, 129 N. C. 398; State v. Shields, 110 N. C. 497, 14 S. E. 779. 791 FORMAL MATTERS §433 upon the truth or falsity of the evidence of a single witness, al- though he may have possessed extraordinary opportunities to know of the matter concerning which he testifies, is generally to give too much prominence to a part of the case only.^^ while, however, it is always advisable for the court to avoid the mention of witnesses by name, the circumstances may be such, in some in- stances, that such mention will not be prejudicial to the party complaining thereof.** Chicago, B. & Q. E. Co., 84 N. W. 958, 113 Iowa, 13. Where, on the trial of two defendants, indicted for an af- fray, each gave testimony tending to excuse himself aAd incriminate the other, and the court charged the jury to acquit one of the defendants if they believed his version, and to con- vict both if they ' believed a third witness' version ; but that, if all the evidence did not satisfy them that de- fendant fought willingly, they should acquit him, it was held not erroneous, as giving undue prominence to the testimony of one witness conflicting with others. State v. Weathers, 98 N. G. 685, 4 S. E. 512. Where expert witnesses for defendant railroad com- pany testified that the speed at which a train was running was not equal to the rate prohibtted by ordinance, which was contradicted by plaintiff's witnesses, who were his fellow pas- sengers, and also engaged in the same business, and a general instruction stated, inter alia, that the jury, in de- termining the credibility of each -wit- ness, might take into consideration "his relationship to the parties in this suit," it was held that the in- struction is not objectionable on the ground that it singles out and covert- ly attacks defendant's witnesses, who were its employes, since it applies as well to the possible relationship be- tween plaintiff and his witnesses. Chicago & A. R. Co. v. Winters, 51 N. E. 901, 175 111. 293. In an action for personal injuries by a married wo- man, in, which plaintiffs husband testified in her behalf, an instruction that a husband Is a competent wit- ness to testify in behalf of his wife, and that, if the testimony given by him appears to be fair, is not unrea- sonable, and is consistent with itself, and the witness has not been in any manner impeached, the jury have no right to disregard the testimony of such witness merely from the fact that he is related by marriage to the plaintiff, was not erroneous as tend- ing to give undue emphasis to his testimony. North Chicago St. R. Co. V. Wellner, 69 N. E. 6, 206 111. 272. Emphasizing testimony of ac- complice. Where only one witness was an accomplice, an instruction that accused might be convicted on the un- corroborated testimony of an accom- plice, and, if the jury believed that the testimony of the witness was true, they could act on it as true, and that the jury should act on the testimony of an accomplice with caution, etc., was not erroneous as attaching undue importance to the testimony of the accomplice. People v. Frankenberg, 86 N. E. 128, 236 111. 408. Where there is but one accomplice who testi- fies in a prosecution for larceny, an instruction that a conviction may be had upon the uncorroborated testimo- ny of such accomplice (naming her) is not erroneous because it singles out the testimony of a particular witness. People V. Thompson, 113 N. E. 322, 274 111. 214. In prosecution for rob- bery, a charge on issue whethfer de- fendant was present, stating his de- nial and his reason for being at an- other place, and that it conflicted with the testimony of the accomplice, referring to defendant's interest and his relation to a "gang," with an ar- gumentative statement as to the cred- it to be given to the accomplice's tes- timony, was prejudicial to defendant, as giving undue emphasis and credit to testimony of the accomplice. State v. Dallas, 176 N. W. 491, 145 Minn. 92. 25 Taubert v. Taubert, 114 N. W. 763, 103 Minn. 247 ; Murphy v. Jones (Pa.) 6 A. 726. 28 Dyas V. Southern Pac. Co., 73 P. 972, 140 Cal. 296 ; State v. Mclver, 94 § 434 INSTRUCTIONS TO JURIES 792 § 434. Limitations of rule ' The court may direct the attention of the jury to the real is- sues in the case,^' or to certain features of the evidence, making no attempt to give particular prominence to any part,** and, aj, explained in a preceding section,^® the court may tell the jury that they may consider certain matters in determining the credibility of witnesses.^" The mere fact that an instruction is ba^ed upon a hypothetical state of facts authorized by the evidence does not render it liable to the objection that it gives undue prominence to a part of the evidence,*^ and the rule that instructions must not give undue prominence to a particular theory is subject to the one that each party to a cause is entitled to instructions hypothetically outlining the evidence and state of the case upon which he relies for ob- taining a verdict, and directing the jury to find for the party in vsfhose favor they find the facts constituting either the cause of action or the defense.** Undue prominence is not given to the contentions of a party merely by stating them at greater length than those of his opponent,** and when the theory of each party, as well as the testimony in support of it, is fairly presented, one party cannot complain that the testimony of the other assumes more prominence in the charge, if this is due to the nature and quality of the testimony itself.** The fact that an instruction gives special protninence to par- ticular evidentiary facts is not pause for reversal, if the facts so emphasized are of controlling importance,*^ and the general rule S. E. 682, 175 N. O. 761; Ward v. Ky. Louisville & N. R. Co. v. King's Brown, 44 S. E. 488, 53 W. Va. 227. Adm'r, 115 S. W. 196, 131 Ky. 347; 27 Clark Pressed Brick Co. v. Ains- Goldstein's Adm'r v. Louisville Ry. worth, 194 S. W. 852, 129 Ark. 588. Co., 115 S. W. 194. 2 8 State V. Stewart, 212 S. W. 853, m^,. Gardner v. Metropolitan St, 278 Mo. 177; Secard v. Rhinelander Ry. Co., 152 S. W. 98, 167 Mo. App. Lighting Co., 133 N. W. 45, 147 Wis. 605. ^^f- , X „„ 1-0 1KC 33 Smith V. State, 101 S. E. 764, 24 29 Ante, S§ 15d-15b. Q ^ 054 Phinizy v. Bush, 70 S. 30 Hale v. State, 26 So. 236, 122 jj, 24B,:i^s5 Ga. 678; MiUen & S. W. ^ „ r, , <„^ XT TT, CO R- Co. V. Allen, 61 S. E. 541, 130 Ga. ■,J!^^Tr.f^ l\ ^f°^^% ^^ ^- ^- ^I^ 656; Macon, D. & S. R. Co. v. Joy- ita l^w^^-.'n.^^^^'^/^^T.T"-^^^"^ ner, 59 S. E 902, 129 Ga. 683. 156 S. W. 1043, 154 Ky. 144 ; Central '^ . _ ', „ ^_„ _ „„„ „- Pass. Ry. Co. v. Ohatterson, 14 Ky. , °t„^r™ ""i^^^'^^^rF^' ?2^' ^^ Law Rep. 663; Fletcher v. Louisville ^- ^^^' 31 Wkly. Notes Cas. 485. & N. R. Co., 49 S. W. 739, 102 Tenn. 1. 3= Boswell v. Thompson, 49 So.. 73, 32 ni. Chicago & N. W. Ry. Co. v. 160 Ala. 306 ; Harding v. St. Louis Snyder, 117 111. 376, 7 N. E. 604; Rax- Nat Stockyards, 149 111. App. 370, worthy v. Helsen, 191 111. App. 457; judgment affirmed 90 N. B. 205, 242 Chicago City Ry. Co. v. Math, 114 111. 111. 444 ; State v. May, 57 S. B. 366, App. 350. 62 W. Va. 129. 793 FOEMAL MATTERS § 434 does not preyent the court, in charging on a particular issue, from singling out a particular fact which is the only fact adduced upon such issue,88 nor does it prevent the court from submitting, to the jury whether certain material facts may be inferred from tes- timony given,*' nor from charging singly with respect to a par- ticular substantive defense,^* nor from instructing on the legal effect of evidence offered in bar of a defense,*® nor from singling out evidence for the purpose of limiting its effect.*" Since the charge must cover every phase of the case, if one of these phases depends on certain particular facts or group of facts, these may be alluded to, in order to convey to the jury a prac- tical idea of the law of the case.*^ The court may tell the jury not to accord to certain opinion evidence undue weight, as being that of experts or of persons especially qualified to testify, but that it is entitled to such consideration as is due the testimony of competent witnesses in ordinary cases,** and in some jurisdictions an instruction which calls attention to particular facts, ignoring others, is not therefore improper, if it does not have the effect of limiting the evidence to be considered in the finding of any fact in the case.** A charge stating a correct proposition of law with reference to the presumption arising from certain facts, although such facts are undisputed, is not objectionable as giving undue prominence to such presumption.** Where there is circumstantial evidence as well as direct evidence in a criminal prosecution, an instruction that the jury can convict on circumstantial evidence alone is not erroneous, as singling out particular evidence.*^ A supplemental instruction, covering an issue concerning which the main charge is silent,*^ or a new instruction on a particular issue, 38 Pelly V. Denison & S. Ry. Co. Neb. Thomas v. Shea, 134 N. W. (Tex Civ App) 78 S. W. 542. 933, 90 Neb. 823, Ann. Gas. 1913B, 37 Marion v. State, 20 Neb. 233, 29 695. N W 911 57 Am. Rep. 825; Scheuer -n Harris v. State," 92 S. E. 224, 19 v' Manitowoc & Northern Traction Ga. App. 741; State v. Irvine, 52 So. Co , 159 N. W. 901, 164 Wis. 333. 567, 126 La. 434. 38 Sheridan v. Chicago & Oak Part «= Oldfather v. Ericsson, 112 N. W. Eaevated R. Co., 153 111. App. 70. 356, 79 Neb. 1. 89 Stewart v. Sparkman, 75 Mo. *s State v. Williams, 92 N. W. 652, Add 106 "- ^ ' ns Iowa, 494 ; State v. Watson, 81 40 Ala! Jackson v. State, 57 So. Iowa, 380, 46 N. W. 868. 594 5 Ala. App. 306 ; Hale v. State, "4 Smith v. State, 124 S. W. 679, 57 26 So. 236, 122 Ala. 85 ; Smith v. Tex. Cr. R. 585. State, 7 So. 52, 88 Ala. 73. " People v. Fox, 110 N. E. 26, 269 Cal, People V. Neary, 104 Cal. 373, III. 300. 37 P 943 ^° Missouri, K. & T. Ry. Co. of 111, People V. Casey, 83 N. E. 278, Texas v. Coffey (Tex. Civ. App.) 68 231 111. 261. S- W. 721. § 434 INSTRUCTIONS TO JURIES 794 ^iven at the request of the jury,*' does not make the issue so covered unduly prominent. The argument of counsel may be such as to warrant the court in emphasizing that portion of its instructions, showing the fal- lacy and impropriety of such argument.** Allusion to a particular witness may be rendered proper by the character of the conten- tions of counsel with respect to his testimony,** and it may be proper to refer to the testimony of a particular witness for the purpose of identifying a certain feature of the evidence.®" Where there is no material conflict in the testimony, and the testimony of the defendant presents his case in the most favorable light to himself, the court may properly single out his testimony, and charge the jury, in a proper case, that if they believe the statement of the defendant the plaintiff is entitled to a verdict ; ®' and it is not improper, where plaintiff, to avoid a continuance, stipulates that certain facts are true, to charge that the jury should take such facts as true.®^ Summarizing the matter contained in voluminous and compli- cated records introduced in evidence does not give undue weight to such evidence.^* Instructions erroneous as unduly emphasizing certain matters will not work a reversal, where the complaining party suffers no harm therefrom.''* § 435. Effect of repetition In submitting issues of fact to the jury, the trial judge may state the rules of law appurtenant to the case both in the abstract and in the concrete, without giving undue prominence to the mat- ter in question.®''' However, the repetition of an instruction involv- ing a particular point, while not necessarily objectionable as giv- ing undue prominence to it,^ may be so, as shown in another *7 Lumsden v. Chicago, E. I. & T. bs Hubert v. New York, N. H. & H. Ry. Co., 73 S. W. 428, 31 Tex. Civ. R; Co., 96 A. 967, 90 Conn. 261. App. 604. „ ^„^^„^ tao. T, koq " whatley v. State, 39 So. 1014, 101 r ^^^^^''t^LYp r'nfPnLrnn' ^^^ ^^^^ ^8 1 Jacobi V. State, 32 So i rN 1\ qan 'l27 A^ S? Ren 60^' ^°- ^- ^^^^ Automobile Supply Co., 4 wfllli V ^fJwR I V ?fiS 1^7 1S9 ">• -^PP- 543; Kankakee & S. R. 49 Walker v. State, 73 S. E. 368, 137 co. v. Horan, 23 111. App. 2.59; State 5 Rollins y. Sehawacker, 153 Mo. ^- ^i^'^"^' ^^ «. W. 85, 149 Mo. 478. App. 284, 133 S. W. 409. " San Antonio & A. P. Ey. Co. v. 51 White V. Barnes, 112 N. C. 323, Martin, 108 S. W. 981, 49 Tex. Civ. 16 S. E. 922. -^PP- 197. s2 Galveston, H. & S. A. Ry. Co. v. bo uiloa v. State, 163 S. W. 732 73 Lynes (Tex. Civ. App.) 65 S. W. 1119. Tex. Cr. R. 41. ' 795 FORMAL MATTERS § 437 place," and the court should be on its guard against emphasizing particular matters by frequently recurring to them in the charge.^" § 436. Duty to avoid distinguishing certain matters by arbitrary or mechanical "devices The practice of underscoring particular words in an instruction is objectionable, as giving undue weight to them.^* There is no ^erit, however, in an objection that part of an instruction is writ- ten with a pen, while the remainder is typewritten,^'* or that cer- tain instructions are printed upon a regular printing press, while others are typewritten,** and it does not constitute reversible error to emphasize an instruction by placing it at the head of the court's charge.®* It is not improper for the court to mark instructions given on its own initiative, so as to indicate that such is the case.*^ K. Time for Giving Instructions Right or duty of court to give instructions after submission of cause to jury, see post, § 444. Proper time for making special requests for instructions, see post, §§ 462-466. § 437. Limitation of time by statute or rule of court In the absence of any statutory provision on the subject, the court may fix the time for giving instructions by rule,** but fre- 5 7 Ante, § 416. State, 72 S. W. 195, 44 Tex. Cr. E. 5 8 Ark, Pnrlow v. United Oil 460; Irvine v. State, 20 Tex. App. 12. Mills, 149 S. W. 69, 104 Ark. 489, 45 5 8 state v. Cater, 69 N. W. 880, 100 L. R. A. (N. S.) 372. lovra, 501. 111. Gehrig v. Chicago & A. K. Co., Printing abstract propositions 201 111. App. 287; Richter v. Village in larger type. The fact that cer- of Maywood, 191 111. App. 475 ; Nel- tain instructions on abstract proposi- son v. Chicago City Ky. Co., 168 111. tions of law, given for the people in App. 98. a prosecution for robbery, are print- Tex. Rodgers v. Texas & P. Ry. ed in larger type than the remaining Co. (Civ. App.) 172 S. W. 1117 ; Ft. portion of the charge, is not reversible Worth & n. G. Ry. Co. v. Crannell error. Featherstone v. People, 62 N. (Oiv. App.) 149 S. W. 351 ; McCul- E. 684, 194 lU. 325. lough Hardware Co. v. Burdett (Civ. s" Kinyon v. Chicago & N. W. Ry. App.) 142 S. "W. 612 ; Continental Oil Co., 92 N. W. 40, .118 Iowa, 349, 96 & Cotton Co. V. Thompson (Civ. App.) Am. St. Rep. 382 ; State v. Kelly, 73 136 S. W. 1178; Waggoner v. Sneed, Mo. 608. 118 S. W. 547, 53 Tex. Civ. App. 278; si People v. Dressen, 158 111. App. Malone v. Texas & P. Ry. Co., 109 S. 139. W. 430, 49 Tex. Cr. R. 398 ; Herring «2 State v. Clark, 163 N. W. 250, ISO V. Galveston, H. & S. A. Ry. Co. (Civ. Iowa, 477. App.) 108 S. W. 977, writ of error e^ Bracey v. McGary, 106 A. 622, dismissed Galveston, H. & S. A. R. 134 Md. 267. Co. V. Herring, 113 S. W. 521, 102 Tex. «* State v. Cobbs, 40 W. Va. 718, 100; JEtna Ins. Co. of Hartford, 22 S. E. 310. Conn., V. Brannon (Civ. App.) 101 S. Discretion of court. The order W. 1020; Adams v. Weakley, 80 S. in which requested instructions shall W. 411, 35 Tex. Civ. App. 371 ; Lee v. be given, whether before or after the § 437 INSTETJCTIONS TO JURIES 796 quently such time is regulated by statute. In one jurisdiction where the court, in civil cases, is required to give special requests before the arguments of counsel, and its general charge after such arguments, it is held that the court has no discretion to give gen- eral instructions after the evidence is closed,^^ and that the fail- ure to give special requests at the time specified by the statute is not cured by giving them in the general charge after the argu- ments of counsel,®* and that if a request made before argument correctly states the law and is pertinent to one or more of the issues in the case, and the same subject has not been covered by other charges given before argument, it will be error to refuse such request before argument, although the language of the re- quest is not exactly what the court would have selected.®'" In this jurisdiction the rule in criminal cases is that the court is author- ized, but not required, at the conclusion of the evidence and upon the request of the state or the accused, to charge the jury before argument upon the points of law requested and pertinent to the case.®* While the court has the right to reserve its decision as to what instructions shall be given to the jury until the evidence is all in,^* it is not error for the trial judge, in the absence of any regulation to the contrary, to instruct the jury, before any evidence is intro- duced, as to their duties."* Under the regulations existing in some of the states, the instructions of the court are required to be given before the arguments of counsel or before their conclu- sion.''- § 438. Mandatory character of such regulations In one state a statutory provision requiring the court to in- struct the jury before argument is deemed to be mandatory,'* except in a prosecution for a misdemeanor.'* As a general rule, however, regulations as to the time of giving instructions will not prevent the court from giving additional instructions in open general charge of the court, or In- es Wertenberger v. State, 124 N. E. structlons given at the request of the 243, 99 Ohio St. 353. opposite party, Is a matter within the s » People v. McCallam, 108 N. Y. discretion of the trial court. Knight 587, 9 N. E. 502. V. State, 32 So. 110, 44 Fla. 94. Jo state v. McGee, 33 S. E. 353, 55 ocOleveland & E. Electric R. Co. v. S. O. 247, 74 Am. St. Rep. 741 ; Ryan Hawkins, 60 N. E. 558, 04 Ohio St. v. State, 83 Wis. 486, 53 N. W. 836. 391. '1 Foster v. Turner, 31 Kan. 58, 1 80 Root V. Incorporated Village of P. 145. Monroeville, 16 Ohio Cir. Ct. R. 617, '2 International & G. N. Ry. Co. v. 4 O. O. D. 53. Parke (Tex. Civ. App.) 169 S. W. 397. 67 Chesrown v. Bevier (Ohio) 128 's Kobison v. State, 179 S. W. 1157, N. E. 94. 77 Tex. Or. R. 55a 797 FORMAL MATTERS §439 court after the cause has been fully argued, and before the jury retire or before the rendition of their verdict, where the demands of justice require them.'* Under this principle additional instruc- tions may be given after the arguments of counsel for the purpose of correcting or qualifying any statement of counsel which is liable to mislead the jury '^ or for the purpose of curing misconduct therein,'" and the action of the court in directing the jury to re- turn an answer to a special issue does not violate a' requirement with respect to giving instructions before the arguments of coun- sel." The giving of an instruction at an improper time will not work a reversal, if it cannot be harmful,'* and delay of the court until several days after the case is submitted to the jury in telling them that a verdict may be returned by a less number than twelve is not prejudicial.'* L. Length and Number of Instructions § 439. Rule against multiplying instructions Instructions should not be unnecessarily voluminous,*" but should be clear and brief, in order that the jury may readily un- derstand them.*^ The practice of requesting an unnecessarily 7 4 Ark. Slim and Shorty v. State, 186 S. W. 308, 123 Ark. 583. Ga. Perdue v. State, 54 S. E. 820, 126 Ga. 112. Ky. Paducah Traction Co. v. Sine, 111 S. W. 356, 33 Ky. Law Rep. 792. Mo. City of Charleston v. Coker, 184 S. W. 1181, 195 Mo. App. 159; Joplin Waterworks Co. v. City of Jop- ,Un, 76 S. W. 960, 177 Mo. 496 ; Bog- gess V. Metropolitan St. Ry. Co., 118 Mo. 328, 23 S. W. 159, 24 S. W. 210 ; State V. Bickel, 7 Mo. App. 572. Okl. Rhea v. Territory, 105 P. 314, 3 Okl. Cr. 230. See Wood v. State, 64 Miss. 761, 2 So. 247. instructions requested during closing argument. Where certain instructions requested by the state during defendant's closing argument were not submitted to defendant's at- torneys, and they were given no op- portunity either to refer or reply to them, it was error for the court to give them. Boykin v. State, 38 So. 725, 86 Miss. 481. 7 Kellogg V, Lewis, 28 Kan. 535; Weant v. Southern Trust & Deposit Co., 77 A. 289, 112 Md. 463. 7 8 Tore V. Mueller Coal, Heavy Hauling & Transfer Co., 49 S. W. 855, 147 Mo. 679. 7 7 Richardson v. Wilson (Tex. Civ. App.) 178 S. W. 566. 7 8 Cluskey v. City of St. Louis, 50 Mo. 89. 7 9 Ashland Coal, Iron & Railway Co. V. Wallace's Adm'r, 42 S. W. 744, 101 Ky. 626, 19 Ky. Law Rep. 849. 80 Cal. In re Keithley's Estate, 66 P. 5, 134 Cal. 9. Colo. Rio Grande Southern R. Co. V. Campbell, 96 P. 986, 44 Colo. 1. ni. Fisher v. Stevens, 16 111. 397 ; Casey V. J. W. Reedy Elevator Mfg. Co., 16e 111. App. 595. Mo. Blanton v. Dold, 109 Mo. 64, 18 S. W. 1149. Va. Southern Ey. Co. v. Hans- brough's Adm'x, 60 S. E. 58, I97 Va. 733 81 Moore v. Damron, 164 S. W. 103, 157 Ky. 799. § 439 INSTEUCTIONS TO JURIES 798 large number of instructions is condemned by the courts on the grounds that they are calculated to confuse the jury, that they cannot be critically examined by the court, and that they afford greater opportunities for error,*" and on the further ground that the jury is liable to obtain the impression that the court is in- structing strongly in favor of the party at whose instance such in- structions are given,*® and it is not error for the court, so long as it does not act arbitrarily,** to place a reasonable limit upon the number of instructions virhich the trial judge will consider in be- half of either party .*^ 8 2 Fla. Florida East Coast Ry. Co. V. Knowles, 67 So. 122, 68 Fla. 400; Atlantic Coast Line R. Co. v. Whitney, 61 So. 179, 65 Fla. 72 ; Gracy v. At- lantic Coast Line R. Co., 42 So. 903, 53 Fla. 350. m. People V. Popovich, 121 N. E. 729, 286 111. 405; Lichtenstein v. L. Fish Furniture Co., Ill N. E. 729, 272 111. 191, Ann. Cas. 1918A, 1087 ; Peo- ple V. Hotz, 108 N. E. 1007, 261 111. 239 ; People v. Warfield, 103 N. E. 979, 261 111. 293, reversing judgment 172 111. App. 1 ; City of Salem v. Webster, 61 N. E. 323, 192 111. 369; Chatelle V. Illinois Cent R. Co., 210 111. App. 475 ; Lovas v. Independent Breweries Co., 199 111. App. 60; Thompson v. Sprague, 197 111. App. 197; Nix v. BrunswlcU-Balke-CoUender Co., 191 111. App. 503 ; Duggan v. Wells Bros. Co., 191 111. App. 499 ; La Salle Coun- ty Carbon Coal Co. v. Eastman, 99 111. App. 495. Mich. Brown v. MeCord & Brad- field Furniture Co., 82 N. W. 441, 65 Mich. 360; Kimball & Austin Mfg. Co. V. Vroman, 85 Mich. 310, 24 Am. Rep. 558. Mo. Friend v. Jones (App.) 185 S. W. 1159 ; Barrie v. St. Louis Transit Co., 96 S. W. 233, 119 Mo. App. 38; Crawshaw v. Sumner, 56 Mo. 517. B. I. Faccenda v. Rhode Island Co., 110 A. 601. W. Va. McCray v. Town of Fair- mont, 33 S. B. 245, 46 W. Va. 442. Duty of appellate coiut. It is not reasonable to require a critical examination of many requested in- structions, and neither under such circumstances should an appellate court examine critically those refus- ed in order to discover one that niight • have been appropriately given. If the case were fairly submitted under the instructions given, nothing more should be required. Bergeman v. In- dianapolis & St. L. R. Co., 104 Mo. 77, 15 S. W. 992. S3 Bartholomew v. IlUnois Valley Ry. Co., 154 111. App. 512;, Mutual Benefit Life Ins. Co. v. French, 2 Cin. R. 321, 13 Ohio Dec. 927. 84 111. Chicago Union Traction Co. V. Hanthorn, 71 N. E. 1022, 211 111. 367; Chicago City Ry. Co. v. O'Don- nell, 70 N. E. 294, 208 111. 267, rehear- ing denied 70 N. E. 477, 208 111. 267, reversing judgment 108 111. App. 385 ; Kravitz v. Chicago City Ry. Co., 210 111. App. 287 ; Daily v. Smith-Hippen Co., Ill 111. App. 319; The Fair v. Hoffmann, 101 111. App. 500, judgment affirmed 70 N. E. 622, 209 111. 380; Chicago Union Traction Co. v. Lud- low, 108 111. App. 857; Cobb Choco- late Co. V. Knudson, 107 111. App. 668, judgment affirmed 69 N. E. 816, 207 111. 452 ; Chicago Union Traction Co. V. Mommsen, 107 111. App. 353. Unreasonable limit. Where de- fendant at the proper time requested 40 instructions as to the law, it was error for the court to arbitrarily re- fuse to examine more than 20 instruc- tions and decide whether they con- tained propositions of law proper to be submitted to the jury. Crane Co. V. Hogan, 81 N. E. 1032, 228 111. 338. 85 Chicago & A. R. Co. v. Kelly; 25 111. App. 17, affirmed 127 111. 637, 21 N. E. 203; Yazoo & M. V. R. Co. v. Dees, 83 So. 613, 121 Miss. 439; O'Neil V. Dry Dock, E. B. & B. R. Co., 129 N. Y. 125, 29 N. E. 84, 26 799 FORMAL MATTERS §440 § 440. Effect of length or brevity of instructions The number of instructions requested may be such that it will be proper for the court on that ground alone to refuse all of them,*8 and an instruction which is of such inordinate length as to confuse the jury will be ground for reversal.*'" However, nei- ther the length nor the brevity of instructions is necessarily prej- udicial to a party.** The fact that a charge is somewhat brief and without amplifica- tion is not in itself a ground for complaint,** and, on the other hand, the mere fact that a charge is rather lengthy, or might have been somewhat shorter and more compact, does not make it er- roneous,*" where the court cannot say that a fairly intelligent jury would be likely to mistake the real issues submitted,*^ and a charge composed of a large number of instructions, which are short and clear and of a character to enlighten the jury, is preferable to a charge composed of a few that are long, diffuse, and compli- cated.®* Am. St. Rep. 512, distinguishing Chapman v. McCormick, 86 N. T. 479, and aflBrming O'Neil v. Dry Dock, B. B. & B. R. Co., 59 N. Y. Super. Ct. 123, 15 N. Y. 84; CraddoCk Lumber Co. V. Jenkins, 97 S. E. 817, 124 Va. 167. See Marquez v. Koch, 161 S. W. 648, 176 Mo. App. 143. 8 8 tr. S. MacFadden v. United States, 165 F. 51, 91 O. C. A. 89, cer- tiorari denied 29 S. Ct. 693, 214 V. S. 511, 53 L. Ed. 1062. D. C. Byan v. Washington & G. B. Co., 8 App. D. O. 542. 111. Canon v. Grigsby, 116 111. 151, 5 N. E. 362, 56 Am. Rep. 769 ; Chica- go City By. Co. v. Sandusky, 99 111. App. 164, judgment affirmed 64 N. E. 990, 198 111. 400; Chicago Athletic Ass'n V. Eddy Electric Mfg. Co., 77 111. App. 204. Md. Maryland Steel Co. v. Engle- man, 61 A. 314, 101 Md. 661. Mo. Cutts V. Davison (App.) 184 S. W. 921; Castle v. Wilson (App.) 183 S. W. 1106 ; Doan v. St. Louis, K. 6 N. W. By. Co., 43 Mo. App. 450; Flynn v. St. Louis & S. F. By. Co., 48 Mo. App. 424 ; Norton v. St. Louis & H. By. Co., 40 Mo. App. 642; Mc- Allister V. Barnes, 35 Mo. App. 668; Kinney v. City of Springfield, 35 Mo. App. 97; City of Hannibal v. Rich- ards, 35 Mo. App. 15; Desberger v. Harrington, 28 Mo. App. 682. Contra, Andrews v. Bunyon, 65 Cal. 629, 4 P. 669 ; McCaleb v. Smith, 22 Iowa, 242. 87 Bartz V. Chicago City By. Co., 116 111. App. 554 ; Sidway v. Missouri Land & Live Stock Co., 68 S. W. 705, 163 Mo. 342 ; Hanson v. Kent & Pur- dy Paint Co., 129 P. 7, 3© Okl. 583. 8 8 Graham's Adm'r v. Illinois Cent. R. Co., 215 S. W. 60, 185 Ky. 370; State v. Steele, 126 S. W. 406, 226 Mo. 588; Mosso v. E. H. Stanton. Co., 148 P. 594, 85 Wash. 499. 8 9 Jones V. Lanham, 93 S. B. 399, 147 Ga. 241. 80 Iowa. Smith v. Sioux City, 93 N. W. 81, 119 Iowa, 50. Kan. Park View Hospital Co. v. Randolph Lodge, No. 216, I. O. O. F., 162 P. 802, 99 Kan. 488. . Mo. Laird v. Keithley, 201 S. W. 1138; Naylor v. Chinn, 82 Mo. App. 160. Neb. Coffey v. Omaha & C. B. St. By. Co., 112 N. W. 589, 79 Neb. 286. Wasb. Rust V. Washington Tool & Hardware Co., 172 P. 846, 101 Wash. 552. 0^ Alaska S. S. Co. v. Pacific Coast Gypsum Co., 138 P. 875, 78 Wash. 247. 82 Chicago City Ry. Co. v. Abler, 107 111. App. 397. , § 441 , INSTEUCTIONS TO JURIES 80O M. NECESSITY 0? Written Instructions Necessity that requests for instructions be in writing, see post, §§ 485, 486. 1. Rule in Absence of Statutory Regulation § ;441. Instructions may be oral In the absence of any statutory provisions to the contrary, it is proper for the court to charge the jury orally,** although it is considered to be the better practice to reduce instructions to writ- ing,** particularly in criminal cases. *^ Where it is within the dis- cretion of the court to give oral instructions, they may be partly oral and partly in writing.*® § 442. Right or duty of party desiring to except to instructions Where the court exercises its power to give oral instructions, it is the right,*? or duty, of one who desires to except to an instruc- tion to have it reduced to writing.** 2. Rule under Statutes § 443. In general In the majority of the states legislation has been enacted which has modified or taken away altogether the common-law power of the court to give oral instructions, both in civil ** and in crim- inal cases.^ In some jurisdictions such statutes have only had 03 Eosenkovitz v. United Rys. & Ga. Bowden v. Achor, 95 Ga. 243, Electric Co. of Baltimore City, 70, A. 22 S. E. 254. 108; 108 Md. 306; Hussey v. Ryan, m. DaUy v. Boudreau, 83 N. E. 64 Md. 42©, 2 Atl. 729, 54 Am. Rep. 218, 231 111. 228 ; Hughes v. Eldorado 772 ; Harden v. Wheelock, 1 Mont, coal & Mining Co., 197 111. App. 259 ; 49 ; Newton v. Consolidated Const. Elgin city Banking Co. v. Chicago, M. Co., 150 N. W. 348, 184 Mich. 63; &: st. P. Ry. Co., 160 111. App. 364; Sheahan v. Barry, 27 Mich. 217. Chicago Hydraulic Press Brick Co. v. 94 Mutual Life Ins. Co. of Haiti- Campbell, 116 111. App. 322. "°af J- ^^'''' "^"et- f^'o^i ^ 'U^Qi A J^a- Molt V. Hoover, 82 N. B. 535, 85 Munson v. State, 213 S. W. 916, ^q j^^ ^^^ gg2 '""ewTrrefBros. Co. y. Wright (O. ,i°-- Parris v. State. 2 G. Greene, C. A. W. Va.) 239 F. 71, 152 0. O. A, 121 449. Mo. Belk V. Stewart, 142 S. W. " Smith V. Crichton, 33 Md. 103. f\ ^f,J^°- ^PP- JP^K.^^^^ Z' 98 Keithler v. State, 10 Smedes & f P™!?^!? ^r''*'^^ *^*'- ^^° ^- ^• M. (Miss.) 192. 659, 131 Mo. App. 134. »90olo. Lee v. Stahl, 9 Oolo. 208, Neb. Hartwlg v. Gordon, 37 Neb. 11 P. 77 ; Montelius v. Atherton, 6 657, 56 N. W. 324. Colo. 224. 1 Ala. Richardson v. State, 75 So. Fla. Southern Exp. Co. v. Van 629, 16 Ala. App. 81. Meter, 17 Pla. 783, 35 Am. Rep. 107; Fla. McKinney v. State, 76 So. Doggett V. Jordan, 2 Fla. 541. 333, 74 Fla. 25. 801 FORMAL MATTERS §443 the effect of requiring requested instructions to be reduced to writing,* but, under many of these statutes, a request for written instructions or an objection to oral instructions by a party will make it error for the court to charge orally,* and under other stat- utes the giving of oral instructions is authorized only when written instructions are expressly waived by the parties,* and it is a gen- eral rule under such statutes, that the 'giving of oral instructions Iowa, state v. Birmlngliam, 74 Iowa, 407, 38 N. W. 121. Kan, State v. Huber, 8 Kan. 447. Ky. Ferguson v. Commonwealth, 132 S. W. 1030. 141 Ky. 457 ; Coppage V. Commonwealth, 3 Bush, 532. Mont. State v. Tudor, 131 P. 632, 47 Mont. 185. N. M. Leonardo v. Territory, 1 N. M. 291. Okl. Rea V. State, 105 P. 386, 3 Okl. Cr. 281, rehearing dtenied 106 P. 982, 3 Okl. Cr. 281. Tenn. Huddleston v. State, 1 Baxt, 109. Tex. Coley v. State, 150 S. W. 789, 68 Tex. Cr. R. 14; Winfrey v. State, 56 S. W. 919, 41 Tex. Cr. K. 538. Wis. Penberthy v. Lee, 51 "Wis. 261, 8 N. W. 116. 2Baer v. Rooks (C. C. A. Ind. .T.) 50 Fed. 898, 2 C. C. A. 76; Gulf, C. & S. F. R. Co. V. Childs, 49 Fed. 358, 1 C. C. A. 297; Gulf, C. & S. F. R. Co. V. CampbeU, 49 Fed. 354, 1 C. C. A. 293. s Colo. Tyler v. McKenzie, 95 P. 943. 43 Colo. 233. Conn. Allen v. Bundle, 50 Conn. 9, 47 Am. Rep. 599. Ga. Forrester v. Cocke, 65 S. B. 1063, 6 Ga. App. 829 ; Homer v. State, 65 S. B. 701, 6 Ga. App. 667; Strick- land V. State, 65 S. E. 300, 6 Ga. App. 536; Central of Georgia Ry. Co. v. Perkerson, 41 S. E. 1018, 115 Ga. 547. HI. Concord Apartment House Co. V. Alaska Refrigerator Co., 78 111. App. 682; Harvey v. Keegan, 78 111. App. 475. Ind. Stephenson v. State, 110 Ind. 358, 11 N. E. 360, 59 Am. Rep. 216; Shafer v. Stinson, 76 Ind. 374; Da- vis V. Foster, 68 Ind. 238. Iowa. Head v. Langworthy, 15 INST.TO Juries— 51 Iowa, 235; Stratton v. Paul, 10 Iowa, 139. Kan. Scruton v. Hall, 50 P. 964, 6 Kan. App. 714; Jenkins v. Levis, 23 Kan. 255. Ky. Traders' Deposit Bank v. Henry, 49 S. W. 536, 20 Ky. Law Rep. 1506, 105 Ky. 707 ; Louisville & N. R. Co. V. Banks, 33 S. W. 637. La. Kellar v. Belleaudeau, 5 La. Ann. 609. N. C. Sawyer v. Roanoke R, & Lumber Co., 55 S. E, 84, 142 N. C. 162 ; Jenkins v. Wilmington & W. R. Co., 110 N. C. 438, 15 S. E. 193 ; Drake v. Connelly, 107 N. C. 463, 12 S. E. 251. Obio. Householder v. Granby, 40 Ohia St. 430; Hardy v. Turney, 9 Ohio St. 400. Okl. Boggs V. United' States, 65 P. 927, 10 Oki: 424, 11 Okl. 139; Id., 63 P. 960, 10 Okl. 424. Tex. Sharman v. Newsome & Johnston (Civ. App.) 101 S. W. 1020. Wash. Mcintosh v. Sawmill Phoe- nix, 94 t. 930, 49 Wash. 152. In Texas, under an earlier statute than the present one, the requirement of written instructions was held to be merely directory, and the omission to put a charge in writing was no ground for a reversal of judgment. Reid V. Reid, 11 Tex. 585; Boone v. Thompson, 17 Tex. 605 ; Toby v. Hei^ denheimer, 1 White & W. Civ. Gas. Ct. App. « 795 ; Gulf, C. & S. F. Ry. Co. V. Holt, Id. § 835. 4Forszen v. Hurd, 126 N. W. 221, 20 N. D. 42 ; Gordon Jones Const. Co. v. Lopez (Tex. Civ. App.) 172 S. W. 987; Dalton v. Dalton (Tex. Civ. App.) 143 S. W. 241; Gonzales v. State, 110 S. W. 740, 53 Tex. Cr. R. 430; Schwartzlose v. Mehlitz (Tex. Civ. App.) 81 S. W. 68. 443 INSTRUCTIONS TO JURIES 802 in a criminal case without the consent of the defendant is. error;® such rule applying even in a prosecution for a misdemeanor.^ Such statutory provisions are Regarded as mandatory in some jurisdictions,' and error follows from a refusal to comply with their requirements, regardless of whether injury results there- from.* In one jurisdiction, however, .where the statute has been construed to be' mandatory, it has been held that the appellate court cannot reverse because of the refusal of the trial court to comply with a request to instruct in writing, unless the reviewing court can see that the party making such request has been preju- diced by such refusal.* In Tennessee, where the statute has been construed to be an imperative direction to the courts to reduce to writing every word of their charge in all felony cases, it is never- theless held that the statute is to be considered in connection with a later statute forbidding a reversal of any case for any error in the procedure of the trial court, unless the reviewing court is of the opinion, after an examination of the entire record, that the er- 5 Cal. People v. Max, 45 Cal. 254 ; People V. Ptosnero, 44 Cal. 186 ; Peo- ple V. Trim, 37 Cal. 274; People v. Woppner, 14 Cal. 437; People v. Ab Fong, 12 Cal. 345 ; People v. Deihint, S Cal. 423; People v. Payne. 8 Cal. 341 ; Same v. Beeler, 6 Cal. 246. Fla. Long v. State, 11 Fla. 295. Ind. Leseuer v. State, 95 N. B. 239, 176 Ind. 448; Periter v. State. 33 Ind. 283; Widner v. State, 28 Ind. 394. La. State V. Porter,' 35 La. Ann. 535; State v. Gilmore, 26 La. Ann. 599. Miss. Stewart v. State, 50 Miss. 587. Neb. EhrUdi v. State, 44 Neb. 810. 63 N. W. 35. N. M. Territory v. Lopez, 3 N. 51. (Gild.) 156, 2 P. 364. N. C. State V. Black, 78 S. B. 210, 162 N. C. 637. Okl. Swaggart v. Territory, 50 P. 96, 6 Okl. 344. Tex. Harkey v. State, 33 Tex. Cr. R. 100, 25 S. W. 291, 47 Am. St. Rep. 10 ; Clark v. State, 31 Tex. 574 ; Mol- ten V. State, 12 Tex. App. 488; Wil- liams V. State, 5 Tex. App. 615 ; Trip- pett V. State, Id. 595 ; Jordan v. State, Id., 422; Gibbs v. State, 1 Tex. App. 12. e Chesapeake & O. Ky. Co. y. Com- monwealth, 210 S. W. 793, 184 Ky. 1 ; Allen V. Commonwealth, 146 S. W. 762, 148 Ky. 327; Edwards v. State (Tex. Cr. App.) 69 S. "W. 144. 7 Ark. Arnold v. State, 74 S. W. 513. 71 Ark. 367. Ind. Bradway v. Waddell, 95 Ind. 170. Kan. Jenkins v. Levis, 23 Kan. 255; City of Atchison v. Jansen, 21 Kan. 560; State v. Potter, 15 Kan. 302. Mont. State V. Fisher, 59 P. 919, 23 Mont. 540. Tenn. Newman v. State, 6 Baxt. 164. In Pennsylvania, the failure of the judge to file the points and an- swers, and charge, as directed' by the statute does not render the judgment erroneous, nor entitle either party to a reversal. Scheuing v. Yard, 88 Pa. 286; Kerr v. O'Connor, 63 Pa. 341; Patterson v. Kountz, 63 Pa. 246. 8 Territory v. Perea, 1 N. M. 627 ; Territory v. Kivera, 1 N. M. 640 ; Mc- intosh v. Sawmill Phoenix, 94 P. 930, 49 Wash. 152. oDeets v. National Bank of Pltts- .burg, 46 P. 306, 57 Kan. 288. 803 FORMAL MATTERS §444 ror complained of affected the merits.^* Only the party aggrieved can take advantage of a violation of the statutory requirement." § 444. Scope of such provisions Such statutory requirements forbid an oral instruction which is in the nature of an argument upon the facts and the duty of the jury to agree upon a verdict,^* apply to statements of rules of law governing the matters in issue or the amount of recovery/* govern an instruction to disregard a particular count or counts of a complaint/* and make it error to read to the jury portions of the pleadings/^ or the statute upon which the action or prosecution is based," instead of embodying them in the written instructions ; and a statement made by the court, after questioning, a witness, as to the character of his acts,'^' or a charge during the arguments of counsel for the purpose of correcting statements made by the lat- ter,^* may be such as to be required to be in writing. So such requirements apply to the giving of special requests to charge which are not a part of the record in the case, and it is not sufficient for the court to simply state in its charge that at a certain point therein, indicated by a notation, it read certain pray- lOMunson v. State, 213 S. W. 916, 141 Tenn. 522. 11 Hogel V. Lindell, 10 Mo. 483. 12 City of Abingdon v. Meadows, 28 111. App. 442. 18 Bradway v. Waddell, 95 Ind. 170. 14 Gardner-Wilmington Coal Co. v. Knott, 115 III. App. 515. 15 Woodruff V. Hensley, 60 N. B. 312. 26 Ind. App. 592. The earlier cases ini Indiana held that it was not reversible error for the court to read the different plead- ings to the jury In connection with his charge, though the instructions were reqiiested to be in writing. Col- lins V. Williams, 52 N. E. 92, 21 Ind. App. 227. In Iowa it is held that, if a plead- ing is read as a part of the charge, though not included in it, the error is not pre.1udlcial when the charge con- tains full instructions as to the issues. Hall V. Carter, 74 Iowa, 364, 37 N. W. 956; Palmer v. State, 29 Ark. 248. le Chicago & E. R. Co. v. Murphy, 101 N. E. 829, 54 Ind. App. 351 ; Sel- lers V. City of Greencai«tle, 134 Ind. 645, 34 N. E. 534 ; Bottorff v. Shelton, 79 Ind. 98; Garrison v. State. 114 S. W. 128, 54 Tex.Cr. E. 600. Contra, People v. Mortier, 58 Cal. 262 ; State v. Mortimer, 20 Kan. 93 ; State V. Stewart, 9 Nev. 120. In Georgia the trial judge may read statutory provisions to the jury vrithout copying them in his charge, Burns V. State, 15 S. B. 748, 89 Ga. 527. But when he undertakes to comply with the requirement that his charge be in writing by noting in his writ- ten Instructions the sections of the statutes which he may read to the ju- ry, it must unequivocally appear from the charge that the sections were in fact read as noted. Hays v. State, 74 S. E. 314, 10 Ga. App. 823. In Michigan it has been held, un- der a statute which did' not provide for the taking of the written instruc- tions to the jury room, but only that they be filed, that the reading of a general law and a reference to it in the written instructions constituted a compliance with the spirit of the stat- ute requiring such instructions. Swartwout v. Michigan Air Ijine R. Co., 24 Mich. 389. 17 State V. Potter, 102 S. W. 668, 125 Mo. App. 465. 18 State V. Shipley, 174 Mo. 512, 74 S. W. 612. § 445 INSTRUCTIONS TO JURIES 804 ers or requests." So such requirements apply to a submission of special issues to the jury,*" and preclude the court from orally in- structing the jury as to the method they are to pursue in arriving at the amount of a verdict,*^ oi; from orally instructing the jury in a criminal case as to what punishment they are authorized to inflict,** or from verbally instructing the jury not to discuss the fact that defendant did not testify.** It has been held that, when a request is made that instructions be reduced to writing, it is bad practice for the court to make oral comments or suggestions, even though they do not amount to an instruction.** § 445. Modifications and explanations The general rule is that such statutes can be invoked to prevent the court from orally qualifying or modifying a written instruction given,** and where counsel, demanding that the whole charge be put in writing, also presents certain requests, which are given with modifications, the modifications should also be reduced to lOWhitaker v. State, 75 S. E. 258, 11 Ga. App. 208, certified questions answered 75 S. B. 254, 138 Ga. 139. 20 Adams v. Burrell (Tex. Civ. App.) 127 S. W. 581. 21 Aurora Trust & Savings Bant v. Fidler, 200 111. App. 233. 22 Ellis V. People, 159 111. 337, 42 N. E. 873; Mttell v. State, 133 Ind. 577, 33 N. E. 417. 2 3 Winfrey v. State, 209 S. W. 151, 84 Tex. Cr. R. 579. 2 4 Chamness v. Cox, 30 N. E. 901, 131 Ind. 118. 2 6 Ala. Edgar v. State, 43 Ala. 45. Cal. People v. Demint, 8 Cal. 423 ; People V. Payne, Id. 341. Colo. Dorsett v. Crew, 1 Colo. 18. Fla. Morrison v. State, 28 So. 97, 42 Fla. 149. Ga. Campbell v. Miller, 38 Ga. 304, 95 Am. Dec. 389. lU. Kay V. Wooters, 19 111. 82. Ind, Provines v. Heaston, 67 Ind. 482. Micli. O'Donnell v. Segar, 25 Micli. 367. Ohio. Eupp v. Shaffer, 21 Ohio Cir. Ct. E. 643, 12 O. C. D. 154. Tenn. Columbia Veneer & Box Co. v. Cottonwood Lumber Co., 41 S. W. 351, 99 Tenn. 122. Matters not constituting modifi- cation of instruction within rule. Where, in a prosecution for assault with a pistol, the court charged, at defendant's request, that if there was a probability of defendant's inno- cence, and unless the evidence exclud- ed every reasonable supposition but that of defendant's guilt, he should be acquitted, and that if any individual juror is not convinced of defendant's guilt beyond all reasonable doubt and to a moral certainty, and there is a reasonable supposition of defendant's innocence, he should be acquitted, and added , that such charges were given in connection with the general charge, and all mean that the Jury could not convict until satisfied beyond all rea- sonable doubt of _ defendant's guilt, such latter statement did not amoimt to a qualification of the written charg- es prohibited by the statute. Holmes V. State, 34 So. 180, 136 Ala. 80. Where court after having read to ju- ry all written charges asked by de- fendant, stated they were not to be taken to explain, vary, or contradict general charge, but in connection with it such statement was not improper as qualification of written charges. Pillar V. State, 74 So. 398, 15 Ala. App. 576. 805 FORMAL MATTERS § 446 writing,*' and even verbal explanations may be of such a char- acter as to be excluded by a request for a written charge.*'" But the simple withdrawal of an instruction by the court is not a violation of a statute which prohibits the modifying, qualifying, or explaining of instructions otherwise than in writing.** § 446. Limitations of statutory rule The above statutory requirements are to be reasonably construed with reference to the purposes to be secured thereby.** Their re- strictive efifect does not extend to remarks of the court not ad- dressed to the jury,** and not every direction given or every state- ment or explanation made to the jury is regarded as an instruc- tion, required to be in writing within such statutes.*^ 2 6 City Bank of Maoon v. Kent, 57 Ga. 283. 27 Ark. Mazzia v. State, 51 Ark. 177, 10 S. W. 257. Cal. People V. Payne, 8 Oal. 341. 111. Burns v. People, 45 111. App. 70. Ind. Meredith v. Crawford, 34 Ind. 399 ; Tenbrook v. Brown, 17 Ind. 410; Laselle v. Wells, 17 Ind. 33; Lung V. Deal, 16 Ind. 349; Ken- worthy V. Williams, 5 Ind. 375; Townsend v. Chapin, 8 Blackf. (Ind.) 328. Kan. State v. Potter, 15 Kan. 302. Ky. Payne v. Commonwealth, 1 Mete. 370. Contra, Morris v. State, 25 Ala. 57. 2 8 Chicago & E. I. R. Co. v. Zapp, 110 111. App. 553, judgment affirmed 70 N. E. 623, 209 111. 339; Bochat v. Knisely, 144 111. App^ 551. See, also, post, | 456, note 16. Withdrawal of instruction in- advertently given. Where an er- roneous instruction has been inad- vertently given, and has been formal- ly withdrawn from the consideration of the jury in any way, so the jury runderstand it is no longer to be con- sidered by them in determining the case, it is no longer an instruction, and its withdrawal cannot be treated as a qualification, modification, or ex- planation of a given instruction, or a violation of the statutory rule. De- vlne V. City of Chicago, 178 111. App. 39. Effect of remarks of court ac- companying; withdrawal of in- struction. Where, after giving and reading an instruction to the jury, the court, desiring to withdraw it, ad- dressing the jury orally, referring to this instruction, said: "Shall I read it to you once more, gentlemen of the jury, or will you bear in mind that the instruction last read is with- drawn? Will that be sufficient?" and to this the jurors replied, "Yes, sir ; that will be sufficient" it was held that the oral instruction was error. North Chicago St. R. Co. v. Johnson, 84 111. App. 670. 2 9 Walton V. Wild Goose Min. & Tra;ding Co., 123 F. 209, 60 C. C. A. 155. 30 Illinois Cent. E. Co. v. Souders, 79 111. App. 41 ; Hasbrouck v. City of Milwaukee, 21 Wis. 217. 31 Ala. Malachi v. State, 89 Ala. 134, 8 So. 104. Ark. Arkansas Lumber & Con- tractors' Supply Co. V. Benson, 123 S. W. 367, 92 Ark. 392. Colo. Bush V. People, 187 P. 528, 68 Colo. 75; Irving v. People, 95 P. 940, 43 Colo. 260. Fla. Barton v. State, 73 So. 230, 72 Fla. 408. Ga. Walker v. State, 72 S. E. 531, 10 Ga. App. 85. 111. KlzeP V. People, 71 N. E. 1035, 211 111. 407; Hinckley v. Horazdow- sky, 23 N. E. 338 ; O'Donnell v. Peo- ple, 110 111. App. 250, judgment af- firmed Gallagher v. Same, 71 N. E. 842, 211 111. 158 ; Jenkins & Reynolds Co. v. Lundgren, 85 111. App. 494; Hallermann v. Baltimore & O. S. W. §446 INSTRUCTIONS TO JURIES 806 As a general rule statements made to the jury will be regarded as instructions, for the purposes of such statutes, only when they Ry. Co., 77 111. App. 404 ; Carlyle Can- ning Co. V. Baltimore & O. S. W. Ry. Co., 77 111. App. 396. Ind. Wall V. State, 10 Ind. App. 530, 38 N. E. 190; Lehman v. Hawks, 121 Ind. 541, 23 N. E. 670; Pate v. Wright, 30 Ind. 476, 95 Am. Dec. 705. Iowa. State v. Hogan, 88 N. W. 1074, 115 Iowa, 455. Ky. Aiken v. Commonwealth, 68 S. W. 849, 24 Ky. Law Rep. 523; Green v. Commonwealth, 33 S. W. 100. Mich. O'Donnell v. Segar, 25 Mich. 367. Mo. State V. Crofton, 197 S. W. 136, 271 Mo. 507; State v. Dewitt, 53 S. W. 429, 152 Mo. 76 ; State v. Moore, 117 Mo. 395, 22 S. W. 1086. Neb. Grammer v. State, 172 N. W. 41, 103 Neb. 325. Nev. State v. Waterman, 1 Nev. 543. Tex. McGaughey v. State, 169 S. W. 287, 74 Tex. Cr. R. 529 ; Bush v. State (Cr. App.) 70 S. W. 550. Directions, statements, or re- marks not nritliin scope of statute. A direction to the jury to reject evi- dence, as to the form of verdict or the like. Bradway v. Waddell, 95 Ind. 170. Statements by the court in ruling on an objection to an opening statement, in which the purposes of the opening statement in general and in relation to the cause on trial are referred to. Frick v. Kabaker, 90 N. W. 498, 116 Iowa, 494. Where the court was requested to instruct in writing, and the court before reading the written instructions stated, "The plaintiff has requested me to give you some instructions which are in writ- ing, and I will read them first and read them as the law," it did not amount to the giving of oral instruc- tion. Dodd V. Moore,, 91 Ind. 522. Vvhere the jury sent two questions in writing to the judge, who orally in- structed them that the questions had nothing to' do with the case, and that it was their duty to determine the case under the evidence and instruc- tions already given, this oral refusal further to instruct was no violation of the statutory requirement that in- structions must be in writing, as it was merely a refusal to give further instructions. Sullivan v. Collins, 18 Iowa, 228. In a prosecution for ille- gal sale of liquor, an election by the state as to the transaction on which it relies for conviction, if it be ia writing, need not be copied into the instructions, and may be read to the jury at the time the charge is deliver- ed, without violating the statute re- quiring instructions to be in writing and to be filed with the papers. State V. Younger, 78 P. 429, 70 Kan. 226. Oral remarks of the court after read- ing an instruction containing a state- ment of the charge against accused and his plea of guilty that the infor- mation is not evidence, and that the instruction is merely to inform the jury of the nature of the crime charg- ed. State V. Marion, 124 P. 125, 68 Wash. 675. A general remark by the court in regard to the length of the trial, and an apology for liis impa- tience during its progress, though made in connection with a charge to the jury, is not a part thereof, which is necessary to be reduced to writing at ,the request of either party. Has- brouck V. Milwaukee, 21 Wis. 217. Technical violation of statute. Although it may be a technical viola- tion of such a statute it is not reversi- ble error for the trial judge, who did not notice the absence of the oflScial reporter from the courtroom, to give additional oral instructions to the jury on their return into the court- room, especially where appellant's at- torney admits that he did not call the trial judge's attention to the report- er's absence, because he intended to take advantage of the error in case the verdict went against him. String- ham V. Cook, 75 Wis. 589, 44 N. W. 777. The fact that the court said to the jury, not in writing, after the ar- gument of counsel: "Gentlemen of the jury. You will bear in mind that you are to try this case according to the law and evidence. Remember you 807 FORMAL MATTERS §446 embody a proposition of law or touch the merits of the case,^* and ordinarily admonitions made by the court during the progress of the trial and before the close of the evidence are not required to be in writing.** It is not reversible error to state the contentions of the parties orally or to supplement slight omissions, at least in the absence of any suggestion of prejudice or error.** Such statutory rule does not apply to remarks to the jurors on their voir dire examination, explaining what will or will not dis- qualify them,*^ nor does it apply to directions to the jury with ref- erence to visiting the scene of an accident;*® nor to remarks made in connection with rulings on the admissibility of evidence,*'' nor to a statement during the trial calling the attention of the jury to the purpose for which certain evidence is admitted,** nor to a di- rection to the jury to disregard certain evidence,*® nor to a recapit- ulation of the evidence,*" nor to a direction to disregard certain re- marks of counsel or of the court,*^ nor to a direction to the jury have been sworn to try this case ac- cording to the law and evidence. That is all. Now you can retire to your room and answer the questions propounded" — could not have preju- diced the legal rights of appellant. Huntzicker's Adm'r v. Pennsylvania Co., 6 Ky. Law Rep. (abstract) 662. 3 2 111. Burns V. People, 45 111. App. 70. Ind. Hatfield v. Chenoweth, 56 N. E. 51, 24 Ind. App. 343; Collins v. Williams, 52 N. E. 92, 21 Ind. App. 22T. Kan. State v. Potter, 15 Kan. 302. N. C. State V. Dewey, 51 S. E. 937, 139 N. C. 556. Okl. Boggs V. United States, 65 P. 927, 10 Okl. 424, 11 Okl. 189; Id., 63 P. 969, 10 Okl. 424. Wash. State v. Jensen (Wash.) 195 P. 238. 33 Wendling v. Commonwealth, 137 S. W. 205, 143 Ky. 587. 3 4 State V. Khoury, 62 S. E. 638, 149 N. C. 454. 3 5 Oberbeck v. Mayer, 59 Mo. App. 289. 3^ Pioneer Fireproof Const. Co. v. Sunderland, 58 N. E. 928, 188 111.' 341, affirming judgment 87 111. App. 213. 3 7 Bloomer v. Sherrill, 11 111. 483; Fruchey v. Eagleson, 15 Ind. App. 88, 43 N. E. 146; Farmer v. Thrift, 94 Iowa, 374, 62 N. W. 804. 3 8 Providence Washington Ins. Co. V. Wolf, 80 N. E. 26, 168 Ind. 690, 120 Am. St. Rep. 395; Littell v. State, 33 N. B. 417, 133 Ind. 577; State v. Thompson (Wash.) 194 P. 553. 3 9 111. Western Coal & Min. Co. v. Norvell, 212 111. App. 218. Ind. Madden v. State, 47 N. E. 220, 148 Ind. 183 ; Stanley v. Suther- land, 54 Ind. 339. Iowa. State v. Brennan, 169 N. W. 744, 185 Iowa, 73 ; Krause v. Red- man, 112 N. W. 91, 134 Iowa, 629; State V. Bigelow, 70 N. W. 600, 101 Iowa, 430. Ky. Metcalfe v. Commonwealth, 86 S. W. 534, 27 Ky. Law Rep. 704. Mo. State V. Good, 132 Mo. 114, 33 S. W. 790. Neb. Consaul v. Sheldon, 35 Neb. 247, 52 N. W. 1104. Tex. Winfield v. State (Cr. App.) 54 S. W. 584. io State V. Dixon, 62 S. E. 615, 149 N. C. 460; Sav^yer v. Roanolte R. & Lumber Co., 55 S. E. 84, 142 N. C. 162 ; Phillips v. Wilmington & W. R. Co., 41 S. E. 805, 130 N. C. 582. Contra, McClay v. State, Smith (Ind.) 215; McClay v. State, 1 Ind. 385. 41 Hayes v. Wagner, 77 N. E. 211, 220 111. 256, affirming judgment 113 111. App. 299; Ohio & M. Ry. Co. v. Wangelin, 152 111. 138, 38 N. E. 760, 446 INSTRUCTIONS TO JURIES 808 as to the manner in which they shall proceed,** nor to directions as to the duties of the jury in relation to their answers to special interrogatories,** nor to an instruction directing a verdict.** Where a question to the court by a juror is propounded, the general rule is that, if the court can answer it by a simple affirma- tion or denial, so as not to involve the making of an independent statement of a rule of law, the court may answer such question verbally,*® and it is held that an answer by the court in response to a question by a juror after the jury has been charged is not re- quired to be in writing,** and that informing the jury, in response to their inquiry on returning into court for that purpose, that they could recommend mercy, but that their recommendation would not be binding, is not an additional charge required to be in writing.*'' The court is not prevented by such statutes from orally remind- ing the jury of their duties as jurors, and impressing upon thern the importance of arriving at a verdict if they can fairly and hon- estly agree.** It is quite generally held that oral statements to the jury as to the form of their verdict are not within the above statu- affirming 43 111. App. 324; State v. Smitli, 109 N. "W. 115, 132 Iowa, 645. Contra, Pecht v. State, 192 S. W. 243, 80 Tex. Cr. B. 452. 42 White-Kingsland Mtg. Co. v. Herdrich, 98 111. App. 607. *3 Lett V. Eastern Mollne Plow Co., 91 N. B. 978, 46 Ind. App. 56 ; Trent- man V. Wiley, 85 Ind. 33; MeOallis- ter V. Mount, 73 Ind. 559. 4* Lacy Bros. & KimlDall v. Morton, 89 S. W. 842, 76 Ark. 603; Geer r. Dancer, 97 S. E. 406, 148 Ga. 465; Young V. Burlington Wire Mattress Co., 44 N. W. 693, 79 Iowa, 415; Grant v. Connecticut Mut. Life Ins. Co., 29 Wis. 125. In Georgia, earlier holdings. In the cases of Harris v. McArthur, 90 Ga. 216, 15 S. E. 758, and Citizens' Bank of Balnbridge v. Fort, 83 S. E. 235, 142 Ga. 611, to the efCect that a direction of a verdict must be in writing, are expressly overruled by the case cited in support of the text. In Illinois, it is held that while it is the better practice, when a peremp- tory instruction is given to find for one of the parties, to give a written instruction, a failure to do so does not constitute reversible error (Fisher V. Dunn, 200 111. App. 63), where the facts are uncontradicted and clearly require the verdict directed (Sears v. C. C. Emerson & Co., 182 111. App. 522; Derby v. Peterson, 128 111. App. 494). *5 State V. Potter, 15 Kan. 302. 48 Millard v. Lyons, 25 Wis. 516. A judgment will not be reversed because the court orally answered a question asked by the jury after they had retired. Where it could not have prejudiced the plaintiff in error. Walton V. Wild Goose Mining & Trad- ing Co. (C. 0. A. Alaska) 123 F. 209, 60 C. C. A. 155. 47Dowling V. State, 67 S. E. 697, 7 Ga. App. 613. 48 Moore v. City of Platteville, 78 Wis. 644, 47 N. W. 1055. In Tennessee, however, the statute which provides that It shall be the duty of the judge, on the request of either party, to reduce every word in his charge to writing before deliver- ing it to the jury, and all subsequent Instructions shall in like manner be reduced to writing before being deliv- ered, is held to apply to oral state- ments by the judge to the jury, before delivering his written charge, as to their duty to try the cause on the sworn testimony. Equitable Fire Ins. Co. V. Trustees C. P. Church at Fos- terville, 91 Tenn. 135, 18 S. W. 121, 809 FORMAL MATTERS §446 tory rule,** if such a statement does not contain any directions as to the law of the case or any comment on the evidence.^" Oral directions to the jury as to their conduct in the jury room,^^ or an oral admonition with respect to rumored misconduct on the part of the jury,^* or with respect to the authority of less than twelve jurors to render a verdict,^* or an oral direction in a criminal case, after the jury have brought in a general verdict of guilty, to return and find the degree of the offense,** are held not to be violations of the statutory requirement. So, after the jury have retired and deliberated on their verdict, the court may call them in and verbally question them as to the possibility of their agreeing on a verdict and send them back to the jury room.®^ The oral repetition of an instruction originally given in writing is not improper.^* In one jurisdiction the statutory provision is held to impose merely the duty to have the instructions in writing and subject to the inspection of counsel before the trial ends, and not to require them to be in writing before being given to the jury." *9 m. Conness v. Indiana, I. & I. E. Co., 62 N. E. 221, 193 111. 464 ; Illi- nois Cent. R. Co. v. Wheeler, 149 111. 525, 36 N. B. 1023 ; Economy Light & Power Co. v. Hiller, 113 111. App. 103, judgment affirmed 71 N. E. 1096, 211 111. 568. Ind. Indianapolis & N. W. Trac- tion Co. V. Henderson, 79 N. B. 539, 39 Ind. App. 324; Peelle v. State, 68 N. E. 682, 161 Ind. 378. Kan. State v. Evans, 136 P. 270, 90 Kan. 795, judgment affirmed 140 P. 892, 92 Kan. 468. Neb. WilUams v. State, 95 N. W. 1014, 69 Neb. 402. Tex. Eagsdale v. State, 134 S. W. 234, 61 Tex. Cr. R. 145. Wis. State y. Glass, 50 Wis. 218, 6 N. W. 500, 36 Am. Rep. 845. Contra, Burns v. State, 89 Ga. 527, 15 S. E. 748. In Illinois it has been held that in a criminal case it is error to orally direct the jury as to the form of their verdict (Helm v. People, 57 N. E. 886, 186 111. 153), although the appellate court has held that such an oral di- rection is not a ground for reversal (People v. Shapiro, 207 111. App. 130). Form of verdiot already found and presented. A statute requiring the charge of the court in capital cas- es to be in writing, refers to charges on the merits given to the jury be- fore they retire to consider their ver- dict, and does not apply to mere di- rections to the jury as to the form of the verdict, which they have already found and presented to the court. Mathis V. State, 34 So. 287, 45 Ma. 46. 5 Herron v. State, 46 N. E. 540, 17 Ind. App. 161; Sturgis v. State, 102 P. 57, 2 Okl. Cr. 362 ; Douglas v. Ter- ritory, 98 P. 1023, 1 Okl. Cr. 583. 51 State V. Lewis, 159 P. 415, 52 Mont. 495. 5 2 Maryland Casualty Co. v. Seattle Electric Co., 134 P. 1097, 75 Wash. 430. 5 3 Baxter v. Magill, 105 S. W. 679, 127 Mo. App. 892. It is sufficient to instruct orally in the absence of objection that 9 or more jurors could make a verdict, but, if less than 12 maide the verdict, those agreeing thereto must sign it. Crav- ens V. Merritt, 199 S. W. 785, 178 Ky. 727. 5 4 People V. Bonney, 19 Cal. 426. 5 6 United States v. Densmore, 75 P. 31, 12 N. M. 99. 6 6 State V. Lahore, 103 P. 106, 80 Kan. 664. 6 7 Reed V. Rogers, 204 S. W. 973, 134 Ark. 528. §447 INSTRUCTIONS TO JURIES 810 § 447. Waiver of benefits of rule The parties may waive the benefits conferred upon them by the above statutory provisions, and when the court, pursuant to their consent, gives oral instructions, they cannot afterwards object to them ; ^ this rule applying in criminal cases,^® and even to a minor defendant in a criminal case."" To be effectual, such waiver must be an express one under some statutes,^"- and under such statutes the mere failure of a defendant in a criminal case to request in- structions in writing will not relieve the court from the duty of so charging.** But in a number of jurisdictions, or under particu- lar statutory provisions, the statutory right of the parties will be deemed waived when the court is not requested to reduce its in- structions to writing "* and no exception is taken to the giving of oral instructions.** 6 8 Ga. Continental Nat. Bank of New York v. Folsom, 67 Ga. 624. 111. Bates V. Ball, 72 111. 108; Downey v. Abel, 87 111. App. 530; Best V. Wilson, 48 111. App. 352. Ind. Chamness v. Cox, 131 Ind. 118, 30 N. E. 901. Neb. Fitzgerald v. Fitzgerald, 16 Neb. 418, 20 N. W. 269. S. D. Davis v. C. & J. Micbel Brewing Co., 140 N. W. 694, 31 S. D. 284. Wash. Smith v. Bowers, 143 P. 316, 82 Wash. 80; Wheeler v. Hotel Stevens Co., 127 P. 840, 71 Wash. 142, Ann. Gas. 1914C, 576. Scope of stipulation ivaiving written instructions. Where at the conclusion of the testimony in an ac- tion it was stipulated by the parties that the court might instruct the jury orally in the case; such instructions to be of the same force and effect as though they were written out and read by the court to the jury in the usual manner, and no objection was made or exception or other action taken because the oral instructions were not reduced ' to writing, filed with the clerk, and given to the jury, it was held that the stipulation waiv- ing the giving of the instructions in the usual manner, and agreeing to their being given orally, also waived any right of the complaining party to have them reduced to writing, filed with the clerk, and given to the jury during its deliberation of the case. Kuhn V. Nelson, 85 N. W. 56, 61 Neb. 224. 5» Colo. Kingsbury v. People, 99 P. 61, 44 Colo. 403. Ind. Leseuer v. State, 95 N. E. 239, 176 Ind. 448. Ky. Allen v. Commonwealth, 146 S. W. 762, 148 Ky. 327 ; Ferguson v. Commonwealth, 132 S. W. 1030, 141 Ky. 457; Harris v. Commonwealth, 132 S. W. 148, 141 Ky. 70. Tex. Vick V. State (Or. App.) 69 S. W. 156. Wash. State V. Andrews, 127 P. 1102, 71 Wash. 181. Contra, State v. Cooper, 45 Mo. 64. 60 Cutter V. People, 56 N. E. 412, 184 111. 395. 61 State V. Fisher, 59 P. 919, 23 Mont. 540; People v. Bonds, 1 Nev. 33; Sharman v. Newsome, 101 S. W. 1020, 46 Tex. Civ. App. 111. 62 Rumage v. State (Tex. Cr. App.) 55 S. W. 64. 6 3 Ala. Blackmon v. State, 77 So. 347, 201 Ala. 53. Ark. O'Neal V. Richardson, 92 S. W. 1117, 78 Ark. 132. 6 4 Bowling V. Floyd, 48 P. 875, 5 Kan. App. 879 ; Howe v. Miller, 65 S. W. 353, 23 Ky. Law Rep. 1610; Fer- rero v. State, 166 P. 101, 64 Okl. 44. The reading of a passage from a text-book, instead of embodying it in the written charge. It not being seasonably objected to for that cause, is not error. Josselyn v. McAllister, 22 Mich. 300. 811 FORMAL MATTERS §448 In some jurisdictions, if the defendant in a prosecution for a misdemeanor desires instructions in writing, he should place them in writing and submit them to the court.*^ § 448. Manner and time of preferring requests for written instruc- tions To put the court in error in giving oral instructions under the statutes requiring written instructions on the request of a party, such request must be distinctly made,*^ and a request limited to certain instructions will not impose a duty upon the court to re- duce its entire charge to writing.^'' On the other hand, a request that the entire charge be placed in writing will include supple- mental instructions asked by the jury after their retirement.** In the absence of any statutory provision to the contrary, an oral re- quest for written instructions will be sufficient to preclude the court from charging orally.*® To be effective, such request must be made at a proper time,'** and to comply with this rule it should be made in time to enable the court to give such requests due consideration and to con- veniently reduce its charges to written form ; '^ such reasonable Colo. Bradford v. People, 22 Colo. 157, 43 P. 1013. Fla. Luster v. State, 23 na. 339, 2 So. 690. Ind. Sutherland v. Hankins, 56 Ind. 343 ; Goodwine v. Miller, 32 Ind. 419. Kau. Davis v. Wilson, 11 Kan. 74. Ky. Risk V. Ewing, 60 S. W. 923, 22 Ky. Law Rep. 1485. Ita. State v. Melton, 37 La. Ann. 77. Okl. Buclier v. Showalter, 145 P. 1143, 44 Okl. 690 ; Hopkins v. Dipert, 69 P. 883, 11 Okl. 630. Or. State v. Goff, 142 P. 564, 71 Or. 352. Pa. Sgier v. Philadelphia & E. Ry. Co., 103 A. 730, 260 Pa. 343. Wyo. Curran v. State, 7© P. 577, 12 Wyo. 553. 'Where a request for written in- gtmctions is refused, and the court suggests that, as the question is sim- ply one of fact, it will instruct the jury orally, to which no objection is made, appellant must be regarded as acquiescing in the giving of the in- structions orally. Westerfleld v. Bald- win, 16 Ky. Law Eep. (abstract) 318. 8 5 Odom V. State, 200 S. W. 833, 82 Tex. Or. R. 580 ; Greer v. State, 136 S. W. 451, 62 Tex. Or. E. 81 ; Bivens V. State (Or. App.) 97 S. W. 86; Bush V. State (Cr. App.) 70 S. W. 550 ; Hill V. State, 67 S. W. 506, 43 Tex. Cr. R. 583 ; Bennett v. State (Tex. Cr. App.) 50 S. W. 945 ; Murray v. State, 44 S. W. 830, 38 Tex. Cr. E. 677; Carr v. State, 5 Tex. App. 153; Killman v. State, 2 Tex. App. 222, 28 Am. Eep. 432. 6 6 Ferguson v. Fox's Adm'r, 1 Mete. (Ky.) 83. 67 Phillips V. Wilmington & W. R. Co., 41 S. B. 805, 130 N. O. 582. 6 8 State V. Young, 111 N. C. 715, 16 S. E. 543. 60 Citizens' Bank of Bainbridge v. Fort, 83 S. E. GUS, 15 Ga. App. 427. '0 Ind. Chance v. Indianapolis & W. Gravel Eoad Co., 32 Ind. 472; Boggs V. Clifton, 17 Ind. 217 ; Gortner V. Amick, 13 Ind. 463; Newton v. Newton, 12 Ind. 527. Kan. Connor v. Wilkie, 1 Kan. App. 492, 41 P. 71. Va. Booth v. Commonwealth, 4 Grat. 525. 7 1 Manning v. Gasharie, 27 Ind. 399 ; Newton v. Newton, 12 Ind. 527 ; McJunkins v. State, 10 Ind. 140; § 448 INSTRUCTIONS TO JURIES 812 time being generally at or before the close of the evidence,'* or before argument begins.'* A rule of court, however, that such re- quest must be made before the trial begins is unreasonable; and will not be enforced by the appellate court.''* The fact that counsel for a party, in the presence of the ad- verse party, requests written instructions, and afterwards, when it is too late for the latter to make such a request,'® or without the knowledge of such adverse party,'^ withdraws such request, will not enable the latter to complain on appeal of the action of the court in instructing orally, since if he desires written instructions he should prefer his own request. N. Matties Bearing on Requisites oe Written Instructions § 449. Sufficiency of reduction of instructions to writing Statutes requiring instructions to be in writing are held to be substantially complied with by writing them in pencil," or by pre- senting them in printed form,'* and where instructions are writ- ten in English, an oral translation of them into a foreign tongue, which is the language of the jury, is not a violation of the statute.'* It is not necessary that the reduction pf instructions to writing should be done by the trial judge personally,** and the court may adopt as its main charge instructions prepared by the counsel for one of the parties.*^ Error in giving oral instructions may be corrected by with- drawing them, afterwards reducing them to writing, and then reading them to the jury, with the direction to disregard those first given,** and in some jurisdictions it is considered that where the court, immediately after giving an oral instruction, reduces it to writing and gives it to the jury in time to be taken with them Atchison, T. & S. F. R. Co. v. Frank- 75 Mutual Ben. Life Ins. Co. v. Mil- lin, 23 Kan. 74. ler, 39 Ind. 475. T2 St. Louis & S. F. Ry. Co. v. Daw- '* Henke v. Babcoek, 64 P. 755, 24 son, 53 P. 892, 7 Kan. App. 466; Jen- Wash. 556. kins V. Leyls, 23 Kan. 255 ; Atchison " Harvey v. Tama County, 53 Iowa, T. & S. F. R. Co. r. Franklin, 23 Kan. 228, 5 N. W. 130. 74, following Manning v. Gasharie, ,/i, State v. Foots, 65 Iowa, 196, 21 27 Ind. 39&; Boggs v. Olifton, 17 Ind. N. W. 5gi . state v. Kelly, 9 Mo. App. 217 ; Newton v. Newton, 12 Ind. 527 ; ^12. _ McJunkins v. State, 10 Ind. 140. '^ Territory v. Romme, 2 N. M. 114. . ^, „ . .' „ „ 80 Barkman V. State, 13 Ark. 705. ..^l^TFj^'^Ln r QQ^" «^Kansas City, M. & 0. Ry. Co. of ry, 98 S. E. 185, 23 Ga. App. 93. ^exas, v. Harral (Tex. Civ. App.) 199 7* Laselle v. Wells, 17 Ind. 33; Pat- S. W. 659. terson v. Ball, 19 Wis. 243. a 2 People v. Garcia, 25 Cal. 531. 813 FORMAL MATTERS §449 on retiring,** or so that they can have the written instructions with them on the final consideration of their verdict,** there is a suffi- cient compliance with the statute, or at least that there is no prej- udicial error.*® In other jurisdictions such subsequent reduction to writing does not cure the original error of giving oral instructions,** and sending to the jury after they have retired to consider of their verdict a transcript of the stenographic notes of an oral instruction will not cure the error in giving it,*'' nor will the filing after verdict of what purports to be a copy of the charge given.** In some jurisdictions the court may give oral instructions, if they are taken down by the court stenographer.** In one juris- diction an oral charge, taken down under the direction of the court by a stenographer, or by a stenographer in the employ of both parties to report the proceedings, who is virtually under the direction of the court, is a charge in writing within such statutes ; ** but in other jurisdictions the taking down of oral instructions by the court stenographer is held not to be a compliance with the statute.*^ It is held that the plain intent of the statute is to require 8 3 Landt v. McCuUough, 75 N. E. 1069, 218 ill. 607 ; Green v. Lewis, 13 111. 642. 8* Spence v. Commonwealth, 204 S. W. 80, 181 Ky. 206; White v. Com- monwealth, 130 S. W. 7961, 140 Ky. 9. 8 5 National Lumber Co. v. Snell, 47 Ark. 407, 1 S. W. 708 ; Swaggart v. Territory, 50 P. 96, 6 Okl. 344. 86 Dixon V. State, 13 Fla. 636; State V. Harding, 81 Iowa, 599, 47 N. W. 877 ; State v. Bennington, 44 Kan. 583, 25 P. 91. 87 Jarnecke v. Chicago Consol. Trac- tion Co., 150 111. App. 248. 88 Territory v. Dorman, 1 Ariz. 56, 25 P. 516 ; Same v. Duffield, 1 Ariz. 58, 25 P. 476. 8 9 People V. Curtis, 76 Cal. 57, 17 P. 941 ; State v. Preston, 38 P. 694, 4 Idaho, 215. Under the California statute permitting such practice, the failure of the reporter to take down certain oral statements of the court, not af- fecting nor in any way qualifying the charge which is taken down, is not cause for reversal. People v. Leary, 39 P. 24, 105 Cal. 486 ; People v. Cox, 18 P. 332, 76 Cal. 281. 90 State V. Erickson, 103 P. 796, 54 Wash. 472; Schon v. Modern Wood- men of America, 99 P. 25, 51 Wash. 482; Sturgeon v. Tacoma Eastern R. Co., 98 P. 87, 51 Wash. 124; Collins V. HufEman, 93 P. 220, 48 Wash. 184. Direction of court. To relieve the court of the duty of charging in writ- ing, under the Washington statute pro- viding that on request of either party the charge must be in writing, provid- ed that, when a stenographic report is taken, this shall be considered as a charge in writing, the stenographer must be one who is under the direc- tion of the court, and can be required CO furnish a copy of the instructions ; and it is not enough that two ste- nographers, one employed on behalf of the prosecuting attorney, and the other by the defendant, are present taking a report. State v. Mayo, 85 P. 251, 42 Wash. 540, 7 Ann. Cas. 881. 91 Ark. Burnett v. State, 81 S. W. 382, 72 Ark. 398; Ga. Brindle v. State, 88 S. E. 460, 17 Ga. App. 741. Ind. Leseuer v. State, 95 N. E. 239, 176 Ind. 448 ; Shafer v. Stinson, 76 Ind. 374. Kan. Wheat v. Brown, 3 Kan. App. 431, 43 P. 807; Eieh v. Lappin, 43 Kan. 666, 23 P. 1038. Mont. State v. Fisher, 59 P. 919, 23 Mont. 540. In Colorado a Statute providing § 449 INSTRUCTIONS TO JURIES 814 that the charge be in writing when delivered and that it be read to the jury as written."* An oral charge is not rendered proper by the fact that it has been reduced to writing before delivery,** and error of the court, after being requested to charge in writing, in giving a part of the charge orally, is not cured by directing the jury to disregard what was said orally.** The requirement of written instructions is held in some juris- dictions to preclude the court from reading from the printed stat- utes.'® In other jurisdictions this may be done,®® or the court may read a portion of its charge from a report of the published decisions of the court of last resort.*' § 450. Numbering instructions In some jurisdictions the court may be required to number its instructions,** and this is the better practice.** In one jurisdic- tion such a duty does not arise in the absence of a request by one of the parties for such a numbering,^ and the failure of the court to comply with the statutory requirements will not justify a re- versal, where no rights are adversely affected by such failure.* § 451. Signing and sealing The requirement is general that written instructions should be authenticated by the signature of the trial judge,* and in some ju- that instructions shall be given in Garrison v. State, 114 S. W. 128, 54 writing before argument does not al- Tex. Cr. K. 600; Wilson v. State, 15 low the giving of parol instructions, Tex. App. 150. though the same be taken by a ste- o" Palmore v. State, 29 Ark. 248; nographer,. and afterwards transcrib- People v. Mortier, 58 Cal. 262 ; Wal- ed, and given to the jury on retiring. ton v. State, 86 S. E. 1072, 17 Ga. Crawford^ V. Brown, 21 Colo. 272, 40 App. 375; Walker v. State, 68 -S. E. P. 692, affirming Brown v. Crawford, 873, 8 Ga. App. 214 ; Bums v. State, 2 Colo. App. 235, 29 P. 1137. ' 89 Ga. 527, 15 S. E. 748 ; State v. Where, however, a request for Mortimer, 20 Kan. 93 ; State v. Stew- written instructions was made when art, 9 Nev. 120. the court was about to instruct the »'' State v. Eoy, 43 So. 59, 118 La. jury orally, and the instructions as 485. given were transcribed by the official ^s Sherlock v. First Nat. Bank, 53 stenographer, and delivered to coun- Ind. 73. sel and the jury, the refusal to give "^ Weightnovel v. State, 85 So. 856, written instructions was not, error. 46 Pla. 1. Union St. Ry. Go. v. Stone, 54 Kan. i Mclver v. Williamson-Halsell-Fra- 83, 37 P. 1012. zier Co., 92 P. 170, 19 Okl. 454, 13 L. 2 Dixon v. State, 13 Fla. 636; R. A. (N. S.) 696. State V. Fisher, 59 P. 919, 23 Mont. 2 Miller v. Preston, 4 N. M. 314, 17 540. P. 566 ; Atchison, T. & S. F. Ry. Co. 8 3 Territory v. Kennedy, 1 Ariz. v. Oalhoun, 89 P. 207, 18 Okl. 75, 11 505, 25 P. 517. Ann. Cas. 681. 9* Fields V. Carlton, 75 Ga. 554; s Burroughs v. State, 17 Fla. 643; McClay V. State, Smith (Ind.) 215. Baker v. State, 17 Fla. 406 ; Denner- OBSmurr v. State, 88 Ind. 504; line v. Gable, 73 Ind. 210; Smith v. Manier v. State, © Baxt. (Tenn.) 595 ; State, 1 Tex. App. 408. 815 FORMAL MATTERS § 453 risdictions the statutory requirement of signing by the judge is deemed imperative,* at least in criminal cases,® and the omission of such signature will constitute ground for reversal, and a mine pro tunc entry will not cure a failure to sign." As a general rule the mere failure or delay of the trial judge to sign his instructions will not constitute reversible error in a civil case,' and in some jurisdictions will not necessarily constitute fatal error in a criminal case.* A requirement of certification of the instructions by the trial judge is complied with by his signature.* The sealing of instruc- tions is now generally dispensed with.^" § 452. Filing instructions In some jurisdictions the written charge must be filed with the clerk of court as soon as it has been read to the jury, and failure to comply with this requirement constitutes reversible error.-'^ O. Pre;sencb op Parties and Right to Inspect Instructions § 453. Presence of parties or their counsel during charge In civil cases the charge of the court,^^ and all subsequent in- structions and explanations touching the duties of the jury,^* should be given in open court, in the presence of the parties or their coun- sel, in some of the states there being statutory provisions requir- ing the presence of counsel during the charge," and in some ju- risdictions instructions erroneously given in the absence of coun- sel will be conclusively presumed prejudicial.^" There is authority, however, to the effect that, since it is the duty of the parties or their counsel to be present during the entire trial of the cause, an 4 Hadley v. Atkinson, 84 Ind. 64. State v. Bufflngton, 20 Kan. 599, 27 5 Payne v. State, 202 S. W. 958, 83 ^i^-^P; 193. „^ ^ „ ^ Tex Cr. R. 287; McLaln v. State, 30 » Hubbard v. State, 2 Tex. App. rr^v Ann 40<) 46 Fla. 1; Denmark v. State, 31 So. J. ex. App. ■±vv. 2gg 43 jujjj J82 8 Bottorff V. Bottorff, 91 N. E. 617, ^[ Ashley-Price Lumber Co. v. Hen- 45 Ind. App. 692. j.y^ gg g jg. 185, 23 Ga. App. 93. !■ Halley v. Tiehenor, 94 N. W. 472, X2 Helwig v. Wayne Circuit Judge, 120 Iowa, 164 ; McDonald v. Axtell 73 Mich. 258, 41 N. W. 268 ; Campbell (Tex. Civ. App.) 218 S. W. 563 ; Par- y. Beckett, 8 Ohio St. 210 ; Seagrave ker V. ChanceUor, 78 Tex. 524, 15 S. v. Hall, 6 O. C. D. 497, 10 Ohio Cir. W. 157; Dillingham v. Bryant (Tex. ct. R. 395. App.) 14 S. W. 1017. 13 Smith v. McMillen, 19 Ind. 391. 8 White V. State, 26 Ma. 602, 7 So. " People v. Trim, 37 Oal. 274. 857 • State V. McCombs, 13 Iowa, 426 ; is t'eibelman v. Manchester Fire State V Davis, 48 Kan. 1, 28 P. 1092 ; Assur. Co., 108 Ala. 180, 19 So. 540. § 453 INSTRUCTIONS TO JURIES 816 absent party cannot complain if instructions are given to tlie jury- in his absence,^® and it has been held that it is not reversible error for a court to give further instructions in explanation of its previ- ous charge, in compliance with a request from the jury, although counsel for neither of the parties is present, where such instruc- tions are given in open court, during a regular session, when coun- sel might reasonably have been expected to be in attendance.^' The above rule requiring the presence of the attorneys during the giving of the charge does not apply to instructions not relat- ing to any statement of the law nor to the merits of the case." In criminal cases it is error to charge the jury in the absence of the defendant,^* or to re-read the instructions in his absence, al- though they are read exactly as first given.** § 454. Right to inspect instructions • While not a universal requirement,*^ it is the duty of the court in some jurisdictions in criminal cases, before reading its instruc- tions to the jury, to submit them to counsel for inspection,' that they may offer such suggestions as they may think proper,** and such duty is held to require the court, after having eliminated certain parts of his charge on the objection of defendant, to again submit the charge to defendant's counsel before reading it to the jury.** 16 Kizzoli V. Kelley, 44 A. 64, 68 N. 22 n. M. James v. Hood, 142 P. H. 3. 162, 19 N. M. 234. 17 Aerheart v. St. Louis I, M. & S. _, , -d,,™™ n o,. 4. m a -, ■Rv no (C! C A Mo^ 99 P 907 40 °"* ^"ssell v. State (Or. App.) C. b. A. 171. 1^^ ^- 242; Fowler v. State, 126 P. IS Va'rn v.' Gonzales (Tex. Civ. App.) ^^' ^ Okl. Cr. 130. 193 S. W. 1132. Tex. Harris v. State, 172 S. W. 10 State V. Meagher, 49 Mo. App. . 975, 76 Tex. Cr. E. 126; Goode v. 571 ; State v. Blackwelder, 61 N. C. state, 171 S. W. 714, 75 Tex. Cr. R. 38. „ „ „ „„ 550; Link v. State, 164 S. W. 987, 73 20 Kinnemer v. State, 49 S. W. 815, rpg^ qj. ji 82 66 Ark. 206. 21 State V. Saunders, 44 La. Ann. 2= Czemicki v. State, 211 S. W. 223, 973, 11 So. 583. 85 Tex. Or. R. 169. 817 COBEECTION OB WITHDRAWAL OF INSTRUCTIONS §455 CHAPTER XXXIV INSTRUCTIONS COREBCTING, EXPLAINING, OR WITHDRAWING OTHER INSTRUCTIONS § 455. 456. Power or duty of trial court. Manner of correction or withdrawal. Cure of erroneous instruction by Its withdrawal, see post, § 539. § 455. Power or duty of trial court The trial court may, at any time before the discharge of the jury, modify or revoke its instructions, when convinced of error therein,^ or may withdraw a charge at the request of the party in whose favor it was made,* and it is not error for the court to with- draw a proper instruction, the subject-matter of which is covered by other instructions given.* Such power of the court does not depend on the consent of the parties to the suit.* Thus it is not 1 Ark. Carlock v. Spencer, 7 Ark. 12. Ga. Smith v. State, 90 S. E. 475, 146 Ga. 36 ; Southern Ry. Co. v. Par- ham, 73 S. E. 763, 10 Ga. App. 531. 111. Chilson V. People, 79 N. B. 934, 224 111. 535; Daube v. Kuppen- heimer, 195 111. App. 99, judgment affirmed 112 N. B. 61, 272 111. .350; Wells V. Ipperson, 48 111. App. 580. Ind. Broadstreet v. McKamey, 83 N. E. 773, 41 Ind. App. 272; Buntin V. State, 68 Ind. 38. -Kan. State v. Wells, 54 Kan. 161, 37 P. 1005. Ky. Eppenheimer v. Common- wealth, 7 Ky. Law Rep. (abstract) 229. Me. State V. Derry, 108 A. 568, 118 Maine, 431. Md. Chesapeake Stevedoring Co. V. Hufnagel, 87 A. 4, 120 Md. 53; United Eys. & Electric Co. of Balti- more V. Carneal, 72 A. 771, 110 Md. 211; Butler v. Gannon, 53 Md. 333; Sittig V. Birkestack, 38 Md. 158. Mich.. Blumeno v. Grand' Rapids & I. R. Co., 59 N. W. 594, 101 Mich. 325. Mo. Carroll V. Wiggains (App.) 199 S. W. 280. INST.TO JUBIES— 52 Neb. Hibner v. Westover, 110 N. W. 732, 78 Neb. 161. N. Y. People v. Benham, 55 N. E. 11, 160 'N. T. 402. Oil. Long V. Kendall, 87 P. 670, 17 Okl. 70. S. C. State V. Lightsey, 43 S. C. 114. 20 S. E. 975. Tenn. Green v. State, 97 Tenn. 50, 36 S. W. 700. Tex. Nowlin v. State, 175 S. W. 1070, 76 Tex. Cr. E. 480; Bailey v. State (Or. App.) 38 S. W. 992.- ■Withdravral by jndge otber tban the trial judge. Where mani- festly erroneous instructions are giv- en by the trial judge, and, after the submission of the cause, the judge, on leaving the county seat, requests an- other judge of the district to receive the verdict, and also to recall the jury and withdraw the erroneous instruc- tions, and the judge so requested does so, the withdrawal of the in- structions is not so Irregular as to constitute reversible error. Reniier V. Thomburg, 82 N. W. 950, 111 Iowa, 515. 2 Harrison v. McGehee, 24 Ga. 530. 8 Lautman v. Pepin, 59 N. E. 107o, 26 Ind. App. 427. * Eldridge v. Hawley, 115 Mass. 410. § 456 INSTRUCTIONS TO JUEIES 818 error to modify an instruction which assumes a controverted fact, so as to make it conditional on a finding of such fact," and the trial court may correct its mistake in the use of a word,® and in- structions which are misleading or not sufficiently clear may be explained by other instructions.'' When so requested, it is the duty of the trial judge to give instructions correcting errors in its charge.* § 456. Manner of correction or withdrawal It is "not improper for the court to correct an instruction by drawing a line across a part thereof desired to be stricken out.® When it is proposed by a further instruction to correct an erro- neous charge, the purpose should be stated, and the explanation made so clear as to leave no room for reasonable mistake,^* and when the court withdraws an instruction, the attention of the jury should be specifically called to the change." Thus, where the court expresses an opinion as to what a witness has testified to, which is directly opposed to the fact, the court should not only withdraw his statement from the jury, but expressly admit that he was wrong as to his remembrance of the testimony of the wit- ness.^* 5 Jones V. Harris. 40 A. 791, 186 Pa. 469, 42 Wtly. Notes Gas. 362. n Falkner v. Behr, 75 Ga. 671. 7 Louisville & N. R. Co. v. Bogue, 58 So. 392, 177 Ala. 349; Kramer v. Comrton, 52 So. 351, 166 Ala. 216; K. B. Koosa & Ck). V. Warten, 48 So. 544, l.")? Ala. 496; Glatfelter v. Seciir- itv Ins. Cto. of New Haven, Conn., 167 N. W. 572, 102 Neb. 464. 8 PoUak V. David'son, 87 Ala. 551, 6 So. 312; Zamore v. Boston Elevat- ed Ey. Co., 84 N. E. 858, 198 Mass. 594; Watson v. Boswell, 61 S. W. 407, 25 Tex. Civ. App. 379. Error in instruction given by consent of both parties. Where a party asks for an Instruction, and It is granted upon the concession of the other party, it becomes the duty of the court afterwards to withdraw it, if it is found not to express the law applicable to the case. JNorthem Cen- tral Ey. Co. V. State, 29 Md. 420, 96 Am. Dec 545. 9 State V. Leete, 174 N. W. 253, 187 Iowa, 305 ; Same v. Newcomber, 174 N. W. 255. 10 Louisville & N. R. Co. v. John- son (C. C. A. 111.) 81 F. 679, 27 C. C. A. 367 ; People v. Goodrode, 94 N. W. 14, 132 Mich. 542. lUnstrations of instructions in- sufficient to correct error. In a prosecution for perjury, error in charging that defendant would be guilty If he falsely testified that he had not "heard" of the existence ■ of a certain bribery fund, where the per- jury assigned In the Indictment w.-js a denial of "knowledge," was not cur- ed by cautioning them that what de- fendant had read- in the papers would not be knowledge. State v. Faulk- ner, 75 S. W. 116, 175 Mo. 546. 11 New Albany Woolen Mills v. Meyers, 43 Mo. App. 124. Sufficiency of withdraiiral of in- struction. A statement by the tri- al judge that he will not undertake to state certain evidence is sufficient to withdraw his previous erroneous statement thereof. .American Minln,« & Smelting Co. v. Converse, 56 N. ii. 594, 175 Mass. 449. 12 People V. Jacobs, 90 N. E. 1092, 243 111. 580. 819 COKEECTION OE WITHDRAWAL OF INSTEUCTIONS § 456 An 'erroneous instruction may be withdrawn from the jury by a direction that it is withdrawn and is to be disregarded by the jury,^* and if the jury is told that certain instructions are with- drawn and other instructions are to take their place, it is not necessary to expressly admonish the jury to disregard the instruc- tions so withdrawn." . Where the trial court promptly corrects an erroneous statement of a rule of law and gives the jury the proper rule, the error is sufficiently retracted.^^ A mere withdrawal of an instruction after the jury has retired need not be in writing.^® 13 State V. Hood, 59 S. E. 971, 63 Ga. App. 548; State v. Baldwin, 100 W. Va. 182, 15 L..R. A. (N. S.) 448, 129 S. E. 345, 178 N. C. 693. Am. St. Rep. 964. is Eobinson v. State, 106 N. E. 533, 14 Goldsmitli v. First Nat. Bank, 96 182 Ind. 329. N. E. 503, 50 Ind. App. 11. See, also, ante, § 445, note 28. 15 Massie v. State, 101 S. E. 703, 24 §457 INSTRUCTIONS TO JURIES 820 CHAPTER XXXV GIVING ADDITIONAL INSTRUCTIONS AFTER RETIREMENT OF JURY § 457. Power and duty of court. 458. Right of parties to request additional instructions on return of jury for further instructions. 459. Giving additional instructions on report by jury of inability to agree. 460. What further instructions may be given. 461. Manner of giving additional instructions after retirement of jury. 462. Presence of parties or their counsel. 463. Presence of defendant and his counsel in criminal prosecution. § 457. Power and duty of court The general rule is that the court may, in the exercise of a sound discretion, either on its own motion ^ or at the request of the parties or of the jury, in some cases under statutory provi- sion therefor, recall the jury, after they have retired to consider their verdict, and give them additional instructions, for the pur- pose of refreshing their recollection as to the evidence given in the case,* or to correct, or withdraw, or supply omissions in, in- structions previously given,* or to explain instructions already 1 U. S. AUis V. United States, 15 S. Ct. 36, 155 U. S. 123, 39 L. Ed. 91. Cal. People v. Perry, 65 Cal. 568, 4 P. 572. Fla. Coleman v. State, 17 Fla. 206. Ind. Hogg V. State, 7 Ind. 551. Mich. People v. HofCmAn, 105 N. W. 838, 142 Mich. 531. Mo. State V. Purgerson, 53 S. W. 427, 152 Mo. 92. Tex. Flores v. State, 53 S. W. 346, 41 Tex. Cr. R. 166. In Texas, under a former statute, the court could not in a criminal case give additional instructions after the jury had retired, except on the re- quest of the jury and the consent of the accused. Benevides v. State, 20 S. W. 369, 31 Tex; Or. R. 173, 37 Am. St. Rep. 799; Myers v. State, 8 Tex. App. 321 ; Garza v. State, 3 Tex. App. 287. In Kentucky, under statutory provisions, the court should not, after the retirement of the jury, give them further instructions except at their request. Brown v. Commonwealth, 224 S. W. 362, 188 Ky. 814. In Washington, the giving by the court on its own motion of additional instructions after the retirement of the' jury is error, although not neces- sarily a reversible one. State V. Hes- sel, 191 P. 637, 112 Wash. 53. 2 People V. Shuler, 98 N. W. 986, 136 Mich. 161; Bonawitz v. De Kalb, 89 N. W. 379, 2 Neb. (Unof.) 534. Discretion of cornet as to how fully evidence shall be restated, see Byrne v. Smith, 24 Wis. 68. 3 Ark. Hamilton v. State, 36 S. W. 1054, 62 Ark. 543 ; McDaniel v. Cros- by, 19 Ark. 533. Colo. Hayes v. Williams, 30 P. 352, 17 Colo. 465. Ga. Patterson v. State, 50 S. E 489, 122 Ga. 587. 111. Shaw V. Camp, 43 N. E. 608, 160 111. 425 ; City of Joliet v. Looney, 42 N. E. 854, 159 111. 471. Ind. Sage v. Evansville & T. H. R. Co., 33 N. B. 771, 134 Ind. 100; Mc- Clelland V. Louisville & N. A. Ry. * City of Covington (Ky.) 82 S. W. 569. v. Bostwick 821 INSTR0CTIONS AFTER RETIREMENT OP JURY §457 This discretion of the court with regard to the giving of addi- tional instructions is a large one, and it may supplement the original charge, whenever confident that the ends of justice will be served by so doing.^ On the other hand, in the absence of a controlling statutory provision, the refusal of the court, after the retirement of the jury, to give additional instructions, cannot or- dinarily be made a ground of exception on appeal,® and in some jurisdictions statutory provisions, forbidding the giving of fur- ther instructions after the argument begins, are held to justify a denial by the court of the request of the jury for additional in- structions.'' However, in some cases, it may be the duty of the court to give additional instructions after the jury have retired, to cure omis- sions or oversights in instructions already given,* or to correct an erroneous statement with regard to matters of evidence,* or to assist the jury to a better comprehension of instructions previous- ly given.i* In some jurisdictions it is said to be the duty of the court, on the request of the jury, to recharge them on any point upon which they may desire additional light,!^ and in some juris- Co., 94 Ind. 276 ; Hartman v. Flaher- ty, 80 Ind. 472; Farley v. State, 57 Ind. 331. Mass. Rainger v. Boston Mut. Life Ass'n, 44 N. B. 1088, 167 Mass. 109; Nichols V. Munsel, 115 Mass. 567; Florence Sewing Machine Co. v. Gro- ver & Baker Sewing Machine Co., 110 Mass. 70, 14 Am. Rep. 579. Miim. State V. Brown, 12 Minn. 538 (Gil. 448). Miss. Clarke v. Pierce, 34 So. 4, 82 Miss. 462. Mo. Pace V. Roberts, 78 S. W. 52, 103 Mo. App. 662; Willmott v. Corri- gan Consol. St Ry. Co., 17 S. W. 490, 106 Mo. 535. Nelj. Jessen v. Donahue, 96 N. W. 639, 4 Neb. (Unof.) 838; McClary v. StuU, 62 N. W. 501, 44 Neb. 175. N. H. Bizzoli v. Kelley, 44 A. 64, 68 N. H. 3. „ ^ ^ Ohio. Solomon v. Reis, 3 O. O. I>. 184, 5 Ohio Cir. Ct. R. 375. S. C. Jones V. Swearingen, 42 S. C. 58, 19 S. E. 947. S. D, Williams v. Chicago & N. W. Ry. Co., 78 N. W. 949, 11 S. D. 463. Wis. Dresser v. Lenima, 100 N. W. 844, 122 Wis. 387. See Choctaw, O. & G. Ry. Co. v. Craig, 95 S. W. 168, 79 Ark. 53 ; Wil- son V. State, 38 S. W. 1013, 37 Tex. Cr. R. 156 ; Gaston v. State, 31 Tex. Cr. R. 804, 20 S. W. 585. 6 Carter v. Becker, 77 P. 264, 69 Kan. 524. 6 Ark. Norton v. Elkhom Bank, 17 S. W. 362, 55 Ark. 59. Mass. In re Phillips, 132 Mass. 233. Mo. Pierce v. Michel, 60 Mo. App. 187. N. H. Harvey v. Graham, 46 N. H. 175. N. J. Jackson v. State, 49 N. J. Law, 252, 9 A. 740. N. Y. People v. Parker, 32 N. E. 1013, 137 N. Y. 535 ; Ivey v. Brooklyn Heights R. Co., 71 N. Y. S. 633, 63 App. Div. 311. Tex. Young v. Hahn (Civ. App.) 69 S. W. 203 ; Luke v. City of El Paso (Civ. App.) 60 S. W. 363. W. Va. TuUy v. Despard, 6 S. E. 927, 31 W. Va. 370. 7 Southern Pac. Co. v. Wilson, 85 P. 401, 10 Ariz. 162. 8 Yeldell v. Shinholster, 15 Ga. 189 ; Dowzelot V. Rawlinga, 58 Mo. 75. Morris v. State, 41 So. 274, 146 Ala. 66. 10 Duane v. Garritson, 58 S. W. 1063, 106 Tenn. 38. 11 Phelps v. State, 75 Ga. 571. § 458 INSTRUCTIONS TO JURIES 822 dictions there are mandatory statutes requiring' the court, at any- time before the jury render their verdict, to give them, iat their request, additional information as to points of law arising in the case 18 § 458. Right of parties to request additional instructioms on re- turn of jury for furtiier instructions Usually the court need not give instructions not requested by the parties until after the jury, having once retired to deliberate upon their verdict, have returned into coU|rt for further instructions ; ^^ but in some jurisdictions the court is required to give such requests, if the new instructions given at the instance of the jury suggest other proper instructions necessary to expound the whole law of the case clearly and fully.-'* § 459. Giving additional instructions on report by jury of in- ability to agree As a general rule, when the jury return into court in the pres- ence of the parties and report that they afe unable to agree, the court may, of its own motion, give them further correct instruc- tions, so far as necessary to meet the difficulties in their minds,*® and in some jurisdictions the parties have the right, when the jury thus returns into court, to ask for additional instructions.*® § 460. What further instructioms may be given Additional instructions to the jury are proper and necessary when they disagree as to the law of the case," and, within the dis- cretion of the court, it may further charge the jury that they must take the law of the case from the court, and that it is their duty not to arbitrarily reject the testimony of any witness,** or as to the desirability of reaching a verdict, and as to the proper manner of procedure, where differences of opinion as to the facts exist.** So the jury may be recalled for the purpose of supplying the omis- sion of the, court to instruct as to the good character of the de- 12 Cox V. Peltier, 65 N. E. 6, 159 4 Tex. 69; State v. Oobbs, 40 W. Va. Ind. 355: Jones v. Johnson, 61 Ind. 718. 22 S. E. 310. 257; Milvvard Co. v. Luigart, 41 S. "State v. Chandler, 31 Kan. 201, W. 568, 19 Ky. Law Rep. 701. 1 P. 787 ; State v. Miller, 100 Mo. 606, 13 State V. Maxent, 10 La. Ann. 13 S. W. 832, 1051; Hannon v. State, 743 ; Commonwealth v. Ford, 146 70 Wis. 448, 36 N. W. 1. Mass. 131, 15 N. E. 153; State v. is Fisher v. People, 23 111. 283; State Smith, 83 P. 965, 47 Or. 485; Wll- v. Baptiste, 26 La. Ann. 134. liams V. Commonwealth, 85 Va. 607, n State v. Pitts, 11 Iowa, 343. 8 S. E. 470. 18 Marcus v. State, 89 Ala. 23, 8 So. See, also, post, § 475, note 19. 155. 14 Preston v. State, 26 So. 736, 41 i9 Varnum v. State (Ga. App.) 103 Fla. 627. See Harper v. State, 109 S. E. 742 ; State v. Tripp, 84 N. W. Ala. 66, 19 So. 901; Keeble v. Black, 546, 113 Iowa, 698. t» 823 INSTBUCTIONS AFTER BETIEEMENT OF JUET § 461 fendant,^" or to supply the'omission to instruct on the law of habit- ual criminals,*! or on the law of principal and accessory/* or on the different degrees of the offense charged *3 or on the defense of alibi.** The jury may be recalled for the purpose of withdrawing from their consideration an issue submitted by a formei:' instruction and which is not in the case.*^ So the jury may be recalled to be in- structed as to the form of their verdict.*" Where the disagree- ment of the jury is merely as to the facts, the court may properly decline to give further instructions.*' Ordinarily the court, on being requested by the jury to give fur- ther instructions on any point, is not required to confine itself to such point.** The court may, however, decline to broaden its in- structions in such a case beyond the scope of the inquiry of the jury,** and the general rule is that in any case it is not required to repeat- its entire previous charge,^* and in some jurisdictions, in criminal cases, no charge should be given when the jury asks for further instructions, except upon the subject of their interroga- tion.31 § 461. Manner of giving additional instructions after retirement of jury Where the court undertakes to give additional instructions after the jury have retired, they should be recalled and the instructions given in open court.^* If such instructions are sent to the jury by the bailiff in charge, the consent of the parties must be se- cured.^* ,The trial judge cannot, after a.djourning court and going home, .send further instructions to the jury.^* 2 Barber v. State, 37 S. E. 885, 112 112 Ga. 228; Gfravett v. State, 74 Ga. Ga. 584. 191. 21 McDonald v. Commonwealtli, 53 Where, however, the jury do not N. E. 874, 173 Mass. 322, 73 Am. St. confine their request for the reading Rep 293 •'^ instructions to any specific one, it 22rathPr V State (Tex Cr Add) ^^"^ ordinarily be error to single out o, o w -^1-7' ^ a particular instruction for reading. 81 S. W. 717. g^ Loyig_ J jj_ ^ g jj Qj, ^_ jiged, 2 3 State V. Kessler, 49 P. 293, 15 -^^g g -^ ^go^ gs Ark. 458. Utah, 142, 62 Am. St. Rep. 911. ■ 31 wharton v. State, 45 Tex. 2. 24 Tooke V. State (Ga. App.) 102 S. 32 Low v. Freeman, 20 N. E. 242, B- 905. 117Ind. 341. 25 State V. Derry, 108 A. 568, 118 33 ai^, Johnson v. State, 14 So. Me. 431. 627, 100 Ala. 55. 26 Pritehett v. State, 92 Ga. 65, 18 S. m^ Chicago & A. E. R. Co. v. Rob- E. 536. bins, 43 N. E. 332, 159 111. 598. 27 State V. Maxwell, 42 Iowa, 208. i„d. Smith v. McMillen, 19 Ind. 28 People V. McKay, 55 P. 594, 122 391. Cal. 628. Mich. Hopkins v. Bishop, 51 N. 29 O'Shields v. State, 55 Ga. 696. soFordham v. State, 37 S. E. 391, s* RafCerty v. People, 72 111. 37. 461 INSTRUCTIONS TO JtJKIBS 824 Under a statute providing that while the jury is out the court is deemed open for every purpose connected with the case sub- mitted to them until a verdict is reached or the jury is discharged, additional instructions may be given on Sunday, if the jury are still deliberating on that day.^^ The court may answer the inquiry of the jury concerning any point upon which they are in doubt, by referring them to its previ- ous instructions, if they fully and correctly cover the point.^^ The statutory requirements as to reducing instructions to writing should be observed, in giving additional instructions after the retirement of the jury,*' subject to the same limitations and qualifications that govern in the case of instructions given before retirement.** § 462. Presence of parties or their counsel In probably the majority of jurisdictions the court, on calling the jury back and giving them further instructions in open court, is not bound to have the parties or their counsel present or to notify them.** It is considered the better practice, however, to notify coun- sel,*' and in some jurisdictions the court is under obligation in such a case to endeavor to secure the presence of the parties or their counsel." In these jurisdictions it will not be error for the court W. 902, 91 Mich. 328, 30 Am. St. Kep. 490. Mo. Chouteau v. Jupiter Iron Works, 7 S. W. 467, 94 Mo. 388. Neb. Martin- v. Martin, 107 N. W. 580, 76 Neb. 335, 124 Am. St. Rep. . 815, 14 Ann. Gas. 511. Pa. Sommer v. Huber, 38 A. 595, 183 Pa. 162. 3 5 People V. Odell, 'l Dak. 197, 46 N. W. 601. S8 Savary v. State, 87 N. "W. 34, 62 Neb. 166. 3 7 Gile V. People, 1 Colo. 60; State V. Stoffel, 48 Kan. 364, 29 P. 685; Mallison v. State, 6 Mo. 399; Law- rence V. State, 7 Tex. App. 192. 8 8 People V. Leary, 105 Cal. 486, 39 P. 24 ; People v. Jackson, 57 Cal. 316 ; State V. McLafEerty, 47 Kan. 140, 27 P. 843. 38 U. S. (C. 0. Mass.) Fournier v. Pike, 128 F. 991. Me. State v. Pike, 65 Me. 111. Mass. McCoy v. Jordan, G9 N. E. 358, 184 Mass. 575; Kullberg v. O'Donnell, 33 N. B. 528, 158 Mass. 405, 35 Am. St. Eep. 507. Mich. National Life & Trust Co. v. Omans, 100 N. W. 595, 137 Mich. 365. Minn. Hudson v. Minneapolis, etc., R. Co., 46 N. W. 314, 44 Minn. 52. N. H. Lelghton v. Sargent, 31 N. H. 119, 64 Am. Dec. 323; Shapley v. White, 6 N. H. 172. N. J. Cooper v. Morris, 7 A. 427, 48 N. J. Law, 607. N. Y. Wiggins v. Downer, 67 How. Prac. 65 ; Cornish v. Graff, 7 N. Y. Civ. Proc. R. 204. B. I. -Alexander v. Gardiner, 14 B. I. 15. Wis. Chapman v. Chicago & N. W. Ry. Co., 26 Wis. 295, 7 Am. Rep. 81. ^oAerheart v. St. Louis, I. M. & S. Ry. Co., 99 F. 907, 40 C. G. A. 171; Illinois Cent. R. Co. v. Ferrell, 108 111. App. 659 ; Heenan v. Howard, 81 111. App. 629 ; Traders' & Truckers' Bank v. Black, 60 S. B. 743, 108 Va. 59; Chapman v. Chicago & N. W. Ry. Co., 26 Wis. 295, 7 Am. Rep. 81. *i Ala. Kuhl V. Long, 15 So. 267, 102 Ala. 563. Cal. Redman v. Gulnac, 5 Cal. 148. Ga. Bryant v. Simmons, 74 Ga. 405. S25 INSTRUCTIONS AFTER RETIREMENT OF JURY § 463 to give such instructions in the absence of counsel if their client is present.*" The court should never go alone to the jury room and. there give them further instructions. To do this constitutes fatal error.** § 463. Presence of defendant and his counsel in criminal prose- cution In criminal cases the general rule is that additional instructions given after the jury have retired must be so given in open court in the presence of the defendant,** and that the giving of such instruc- tions in his absence will constitute fatal error, although his coun- sel is present.*® A limitation of the above rule is held in some jurisdictions, in that the giving of such instructions in the ab- sence of the defendant will not be cause for reversal, if such ab- sence is not brought about by any act of the court,*® as where defendant and his counsel cannot be found, so that they may be notified.*'' The rule requiring the presence of the accused does not apply to statements which cannot affect the verdict.** While it is desirable that counsel for the prisoner should be present when such instructions are given, and in some jurisdic- tions statutory provision is made for giving notice to the prosecut- ing attorney and the counsel for the defendant of the intention of the court to give further instructions,*^ the absence of counsel in such case will not constitute reversible error.®' Iowa. Burton v. NeiU, 118 N. W. N. M. Territory v. Lopez, 3 N. M. 202, 140 Iowa, 141, 17 Ann. Cas. 532. 104, 2 P. 864. Mo. McPherson v. St. Louis & N. Tex. Taylor v. State, 42 Tex. 504. A. Ry. Co., 10 S. W. 846, 97 Mo. 253 ; 45 Ga. Bonner v. State, 67 Ga. 510. Norton v. Dorsey, 65 Mo. 376. Kan. State v. Myrick, 38 Kan. Ohio. Seagrave v. Hall, 10 Ohio 238, 16 P. 330. Cir. Ct. R. 395, 6 O. C. D. 497. Ohio. Jones v. State, 26 Ohio St. 42 Torque v. Carrillo, 25 P. 526, 1 208; Kirk v. State, 14 Ohio, 511. Ariz. 336. Tenn. Witt v. State, 5 Cold. (45 * 3 Jones V. Johnson, 61 Ind. 257; Tenn.) 11. Fish V. Smith, 12 Ind. 563; Read v. Wash. Linbeck v. State, 1 Wash. City of Cambridge, 124 Mass. 567, 26 St. 336, 25 P. 452. Am. Hep. 690; Campbell v. Beckett, 48 Tooke v. State (Ga. App.) 102 S. 8 Ohio St. 210. B. 905 ; Davis v. State, 50 S. B. 376, 44 Ala. Johnson v. State, 100 Ala. 122 Ga. 564. „„ ^,. 55 14 So 627 *^ State v. Hale, 91 Iowa, 367, 59 749^2 Irrill'- '*"''• '' '• ^- ""'^^Honand v. People, 69 P. 519, ^' T^M Q* fo o^ r« ^sq 30 Colo. 94; State v. Olds, 76 N. W. Ga. Wilson v. State, 87 ha.. 5Sd, g^_ ^^g ^^^^^ j^j^q. g^^^^ ^ j^^gg^ 13 S. E. 566. 29 S. C. 201, 7 S. E. 296. Ind. Roberts v. State, 111 Ind. 49 People v. Kennedy, 11 N. Y. S. 340, 12 N. E. 500. 244, 57 Hun, 532 ; People v. Cassiano, Ky. Bailey v. Commonwealth, 71 30 Hun (N. .Y.) 388. S. W. 632, 24 Ky. Law Rep. 1419. bo People v. Mayes, 45 P. 860, 113 La. State V. Frisby, 19 La. Ann. Cal. 618; State v. Dudoussat, 47 La. j^43. ' Ann. 977, 17 So. 685. INSTRUCTIONS TO JURIES 820 CHAPTER XXXVI REQUESTS OR PRAYERS FOR INSTRUCTIONS A. Necessity of Requests or Prayebs 1. To Authorize the Giving of Instructions § 464. Disability of court to give any instructions in absence of request therefor. 465. Disability of court to give instructions on particular matters in absence of request. ' 2. To Require the Giving of Instructions on the Substantial Issues of the Case 466. Rule in civil cases. 467. Rule in criminal cases. 3. Necessity of Requests to Make it Duty of Court to Give Further or More > Specific Instructions 468. General rule. 469. Specific applications of rule in civil cases. 470. Application of rule in criminal cases. 471. Qualifications of rule. 4. Failure to Request Instructions as Precludmg Party from Complaining of Positi/ve Error or Misdirection in Those Given 472. General rule. 473. What constitutes positive error. 474. Error in instructions induced by party. B. Time or Making Requests 475. Rule in absence of specific regulation. 476. Regulation by statute or rule of court. 477. Prematurity of requests. 478. Tardiness of requests. 479. Operation and mandatory character of statutes or rules of court pre- scribing time for presenting requests. C. Formal Matters Connected with Preparation of Requests 480. Requisites of requests in general. . 481. Form and requisites of request for direction of verdict in criminal case. 482. Separating, numbering, and signing requests. 483. Submission of requests to opposing counsel. 484. Filing requests. D. Necessity of Written Requests 485. Statement of rule. 486. Waiver of requirements of rule. B. Presentation of Requests to Court 487. Necessary formalities connected with presenting requests to court. 488. Argument of requests. F. Passing on Requests and Disposition Thereof 489. General considerations. 490. Time of passing on requests. 827 BEQUESTS OR PRAYERS FOR INSTRUCTIONS § 464 § 491. Manner of giving requested instructions. 4»2. Uoniments and explanations by court on refusing requests. 4a3. ^iotnlg disposition of requests. 4y4. Inconsistent requests. , U. POWEE AND DTJTT OF COUBT WITH RESPECT TO THE MODIFICATION OF, OB THE Substitution of Other Instbuctions for, Coeeect Requests 495. Rule tliat court may, on granting a correct request, vary its phrase- . ology. 496. Rule tnat court shoulj'give or refuse a requested charge without al- teration. 4» ( . Power of court to substitute instructions of its own for correct instruc- tions requested. ' ■ 498. Maimer of making modification. U. Requests fob Instbuctions Albeiady Covered by Ot^b Instructions 499. General rule. 500. Sjiecitic applications of rule. 501. Limitations of rule. I. Eeeoneous Requests 502. Rule that such requests may be refused without attempt at correction. 503. Qualifications of rule. 504. Power of court to reform an erroneous request. 505. Effect of erroneous request as' making it duty of court to give a proper charge. A. Necessity oe Requests or Prayers Necessity of request for definitions, see ante, § 362. Necessity of request for instruction on burden of proof, see ante, § 204. Necessity of request for instructions on circumstantial evidence, see ante, § 230. Necessity of request for instructions on presumptions, see ante, § 187. Necessity of request for instruction to disregard certain evidence, see ante, § 292. 1. To Authorise the Giving of Instructions § 464. Disability of court to give any instructions in absence of request therefor In one jurisdiction there is a statutory prohibition against the giving by the trial court on its own motion of instructions to the jury,^ and in this jurisdiction it is error for the trial judge, of his own accord and without being requested so to do, to give instruc- tions, although the subject-matter thereof be legal and applicable to the issues.* In other jurisdictions the rule is that the judge may, without being asked to do so, give such instructions as he thinks proper and conducive tt) justice.^ lAkroid V. State, 64 So. 936, 107 Miss. 548; Lindsey Wagon Co. v. Miss 51 ; Watkins v. State, 60 Miss. Nix, 67 So. 457, 108 Miss. 814 ; Wil- .323 • Arfher v. Sinclair, 49 Miss. 343 ; liams v. State, 32 Miss. 389, 66 Am. Edwards v. State, 47 Miss. 581. Dec. 615. 2 Davenport v. State, 83 So. 738, 121 a Brown v. People, 4 Oilman (111.) §465 INSTKUCTIONS TO JDKIES 82S § 465. Disability of court to give instructions on particular mat- ters in absence of request In one jurisdiction, under a statute, the court is not authorized to charge upon the effect of evidence without having been re- quested so to do by a party.* 2. To Require the Giving of Instructions on the Substantial Issues of the ' Case.. § 466. Rule in civil cases In a number of jurisdictions it is not the duty of the trial court in civil cases^o give instructions upon any question unless in- structions covering such question are tendered and requested to be given.^ In Missouri, where this rule prevails, it is held that, while it is the duty of the plaintiff to request instructions clearly presenting the law upon which he bases a claim to recover,* his failure to make such a request will nevertheless not constitute error," since his right to move the court for instructions is a per- 439; Stumps v. Kelley, 22 111. 140; Carey v. Oallan's Bx'r, 6 B. Mon. (Ky.) 44. iWlnford v. State, 75 So. 819, 16 Ala. App. 143. 5 Ariz. United States v. Chung Sing, 86 P. 205, 4 Ariz. 217. Ark. Choctaw, O. & G. R. Co. v. Baskins, 93 S. W. 757, 78 Ark. 355. ria. Carter v. Bennett, 4 Fla. 283. 111. Osgood V. Skinner, 71 N. E. 869, 211 111. 229, affirming Judgment 111 111. App. 606 ; McKeown v. 0ynie- wicz, 83 111. App. 509. Ky. Louisville & N. E. Co. v. Stephens, 220 S. W. 746, 188 Ky. 1; Ray V. Shemwell, 217 S. W. 851, 186 Ky. 442; Brown v. G-illespie, 10 Ky. Law Rep. (abstract) 634. Md. Ooates v. Sangston, 5 Md. 121. Mo. "Wall V. Weiler (App.) 200 S. W. 731 ; Kinsdlving v. Kinsolving (App.) 194 S. W. 530; Stewart v. Mason (App.) 186 S. W. 578; De Ford V. Johnson (Sup.) 177 S. W. 577; Petershagen v. Star Clothing Co., 176 S. W. 466, 188 Mo. App. 581; Willis V. Miller, 175 S. W. 301, 189 Mo. App. 338; Carpenter v. Kansas City Southefn Ky. Co., 175 S. W. 284, 189 Mo. App. 164; Sang v. City of St. Louis, 171 S. W. 347, 262 Mo. 454; Vannest v. Missouri, K. & T. By. Co.^ 168 S. "W. 782, 181 Mo. App. 373; Wingfleld v. Wabash R. Co., 166 S. W. 1037, 25T Mo. 347 ; Powell v. Un- ion Pac. E. Co., 164 S. W. 628, 255 Mo. 420: Commerce Trust Co. v. White, 158 S. W. 457, 172 Mo. App. 537; National Stamping & Electric Works V. Wicks, 128 S. W. 775, 144 Mo. App. 249 ; Morgan v. Mulhall, 114 S. W. 4, 214 Mo. 451 ; Brown v. Globe Printing Co., 112 S. W. 462, 218 Mo. 611, 127 Am. St. Rep. 627; Sowders V. St. Louis & S. F. R. Co., 104 S. W. 1122, 127 Mo. App. 119 ; Hall v. St. Louis & S. Ry. Co., 101 S. W. 1137, 124 Mo. App. 661 ; Wilson v. Kansas City Southern Ry. Co., 99 S. W. 465, 122 Mo. App. 667. N. M. Palatine Ins. Co., Limited, of Manchester, England, v. Santa Fe Mercantile Co., 82 P. 363, 13 N. M. 241. Wis. Stuckey v. Fritsche, 77 Wis, 329, 46 N. W. 59. « Sutter V. Metropolitan St. Ry. Co. (Mo.) 188 S. W. 65. "7 Baughman v. Metropolitan St. Ry. Co. (Mo. App.) 177 S. W. 800; Wil- liams V. Kansas City (Mo. App.) 17T S. W. 783 ; Kiser v. Metropolitan St. Ry. Co., 175 S. W. 98, 188 Mo. App. 169 ; Rickards v. Kansas City, 168 S. W. 845, 181 Mo. App. 336. . 829 BEQUESTS OR PRAYERS FOR INSTRUCTIONS §466 sonal privilege, which he may waive,* and that where the plaintiff does waive his right in this regard it is not error for the court to decline to instruct from his standpoint at the request of the de- fendant.* It is held, however, in this jurisdiction, that the court should, in the exercise of a sound discretion, charge the jury on the -law of the case,^" and it is also held in this jurisdiction, and in other jurisdictions where the court is not required to charge, ex- cept upon the request of the parties, that if it does undertake to give instructions it must cover all the issues and both sides of the controversy." In a number of other jurisdictions, in some cases under statute, the rule is, in civil actions, that the trial court is bound to see that the jury has a clear and intelligent understanding of the issues they are to pass on, that appropriate instructions should be given upon all the substantial issues, and that a failure to instr^uct thereon with reasonable fullness is prejudicial error, although no requests be made for additional instructions.^^ 8 Sowders v. St. Louis & S. F. B. Co., 104 S. W. 1122, 127 Mb. App. 119. 9 Marion v. St. Louis & S. F. K. Co., 104 S. W. 1125, 127 Mo. App. 129. 10 McDonald v. Central Illinois Const. Co., 166 S. W. 1087, 183 Mo. App. 415. 11 South Covington & O. St. Ky. Co. V. Core, 96 S. W. 562, 29 Ky. Law Rep. 836 ; Thornton v. Mersereau, 151 S. W. 212, 168 Mo. App. 1 ; Sinnamon V. Moore, 142 S. W. 494, 161 Mo. App. 168. 12 Ga. Gainesville & N. W. R. Co. V. Galloway, 87 S. E. 1093, 17 Ga. App. 702; Seaboard Air Line Ry. v. Bostoek, 58 S. E. 186, 1 Ga. App. 189 ; Evans & Penninston v. Nail, 57 S. E. 1020, 1 Ga. App. 42; Whelchel v. Gainesville &■ D. Electric Ry. Co., 42 S. E. 776, 116 Ga. 431; Phenix Ins. Co. V. Hart, 38 S. E. 67, 112 Ga. 765 ; Pryor v. Ooggin, 17 Ga. 444. Iowa. MeSpadden v. Axmear, 181 N. W. 4 ; Freeby v. Town of Sibley, 167 N. W. 770, 183 Iowa, 827; Busch V. Tjentland, 165 N. W. 999. 183 Iowa, 360. First Nat. Bank of Shenandoah V. Cook, 153 N. "W. 169, 171 Iowa, 41 ; Soderburg v. Chicago, St. P., M. & O. Ry. Co., 149 N. W. 82, 167 Iowa, 123 ; Moran v. Martinson, 146 N. W. 841, 164 Iowa, 712; Capital City Brick & Pipe C-o. V. City of Des Moines, U3 N. W. 835, 136 Iowa, 243; Owen v. Owen, 22 Iowa, 270. Ind. Cleveland v. Emerson, 99 N. E. 796, 51 Ind. App. 339. Mich. Pierson v. Smith, 178 N. W. 659, 211 Mich. 292; Wright v. Detroit, G. H. & M. Ry. Co., 77 Mich. 123, 43 N. W. 765, Barton v. Gray, 24 N. W. 638, 57 Mich. 622. Neb. Larson v. Chicago & N. W. R. Co., ]31 N. W. 201, 89 Neb. 247; York Park Bldg. Ass'n v. Barnes, 39 Neb. 834, 58 N. W. 440; Sandwich Mfg. Co. V. Shiley, 15 Neb. 109, 17 N. W. 267. S. C. Colllns-Plass Thayer Co. v. Hewlett, 95 S. E. 510, 109 S. C. 245. S. D. Wilson V. Commercial Un- ion Ins. Co., 89 N. W. 649, 15 S. D. 322. Tenn. Mariner v. Smith, 7 Baxt. 423. Tex. Wallace v. Shapard, 94 S. W. 151, 42 Tex. Civ. App. 594. Compare Berry v. Texas & N. O. B. Co., 10 S. W. 726, 72 Tex. 620. Vt. In re Bean's Will, 82 A. 734, 85 Vt. 452. Illustrations of cases in. ivMch recinest not necessary. Where the petition, in an action for a personal injury negligently inflicted by defend- ants, charged a joint tort, and a Oe- 466 INSTRUCTIONS TO JURIES 830 In another jurisdiction the rule is stated to be that the court need not charge, in the absence of a request for instructions, where the facts are simple,^* but that the judge must of his own motion, with or without suggestion from the parties, submit such issues as are necessary to settle the material controversies arising under the pleadings.'^* § 467. Rule in criminal cases In criminal cases the doctrine is in most jurisdictions,^® in some jurisdictions a stricter rule being applied in criminal cases than that prevailing in civil cases,^^ that the court should give instruc- tions necessary for , the information of the jury, although no re- quest is made therefor, and the court is required in a prosecution for felony to instruct the jury on all the law of the case,^' or on the general principles of law pertinent to the case,*^* whether any request is made or not. Thus this rule may be invoked to make it the duty of the court fendant claimed that tlie codefendaiit, responsible for the injury, was an in- dependent contractor, the question as to what is an independent contractor was an essential question, making it the duty of the court, independent of any requests, to sta1|e the law on the subject. Overhouser v. American Cereal Co., 105 N. TV. 113, 128 Iowa, 580. ' IS Holly V. Holly, 94 N. C. 96. 14 Mitchell V. Carolina Cent. R. Co., 32 S. E. 671, 124 N. C. 236, 44 L. R. A. 515. 15 Ga. Tanner v. State, 88 S. E. 554. 145 Ga. 71; McLendon v. State, 82 S. E. 317, 14 Ga. App. 737 ; Sledge V. State, 26 S. E. 756, 99 Ga. 684. N. C. State V. Merrick, 88 S. E. 501, 171 N. C. 788. Tcnn. Phipps v. State, 3 Cold. 344. Tex. Woodall V. State, 126 S. W. 591, 58 Tex. Cr. E. 513; Bllers v. State, 34 Tex. Cr. R. 161, 29 S. W. 1074, 53 Am. St. Rep. 705; Sandersi V. State, 41 Tex. 306; Marshall v. State, 40 Tex. 200; Cole v. State, 40 Tex. 147; Jackson v. State, 15 Tex. App. 84 ; Benevides v. State, 14 Tex. App. 378; Bennett v. Same, 12 Tex. App. 15 ; Sims \. State, 9 Tex. App. 586 ; Reed v. State, 9 Tex. App. 317 ; O'Mealy v. State, 1 Tex. App. 180. ■Utah. Brannigan v. People, 24 P. 767, 3 Utah, 488. Vt. State V. Clary, 78 A. 717, 84 Vt. 110, Ann. Cas. 1912D, 64. 16 Ky. King v. Commonwealth, 220 S. W. 753, 187 Ky. 782 ; Thomas V. Commonwealth-, 143 S. W. 409, 146 Ky. 790; French v. Commonwealth, 88 S. W. 1070, 28 Ky. Law Rep. 64; Williams v. Commonwealth, 7 Ky. Law Rep. (abstract) 745. Mo. State v. Goode (Sup.) 220 S. W. 854 ; State v. Gaultney, 146 S. W. 1153, 242 Mo. 388 ; State v. Rufus, 51 S. "W. 80, 149 Mo. 406 ; State v. Tay- lor, 118 Mo. 153, 24 S. W. 449 ; State V. Nelson, 118 Mo. 124, 23 S. W. 10.^8 ; State V. Henson, 106 Mo. 66, 16 S. W. 285; State v. Heinze, 66 Mo. App. 135. 17 Ky. King v. Commonwealth, 220 S. W. 755, 187 Ky. 782 ; Wellman V. Commonwealth, 205 S. W. 328, ISi Ky. 346; Kinglesmith v. Common- wealth, 7 Ky. Law Rep. 744 ; Mackey V. Commonwealth, 4 Ky. Law Rep. 179, SO Ky. 345. Mo. State V. Lackey, 132 S. W. 602, 230 Mo. 707 ; State v. Banks, 73 Mo. 592 ; State v. Branstetter, 05 Mo. 349. Neb. Carlpton v. State, 61 N. W. 699, 43 Neb. 873. 18 People V. Peck (Cal, App.) 185 P. 881. 831 REQUESTS OR PRAYERS FOR INSTRUCTIONS § 467 to instruct on the issue of insanity as a defense in a criminal case.^® The general rule is that, where the evidence raises the issue, the court should instruct on the law of self-defense, whether asked to do so or not,^' and under a statute requiring the jury to be in- structed on all questions of law arising in the case which are nec- essary for their information, it is held that such a charge is nec- essary where the issue of self-defense is presented by the evidence of the state, although such evidence is denied by, and inconsistent with, the evidence offered by the defendant himself.^^ But where, in a prosecution for homicide, the defendant claims he shot the deceased accidentally, and the issue of self-defense is not other- wise presented, the court need not instruct thereon, in the absence of a request to do so.** In some jurisdictions a request is not re- quired to make it the duty of the court to charge that the venue must be proven.** In Missouri, where the jury is required to instruct- on its own motion oh the law of the case in a criminal prosecution, such duty is held not to extend to instructions on collateral questions.** Within this rule the question whether extrajudicial statements of defendant were voluntarily made is a collateral one,*® as is the question whether a statement by one defendant is binding on a codefendant.*® As a general rule, in a prosecution for a misdemeanor, it is only necessary to define the offense charged and state the punishment, and if any further instructions are desired by the accused they should be requested.*^' 18 Thomas v. State, 40 Tex. 60. 26 State v. Taylor, 168 S. W. 1191, aoCoUegenia v. State, 132 P. 375, 261 Mo. 210. 9 Okl. Cr. 425. ^^ Mo. State v. Magruder (App.) 21 State V. Bidstrup, 140 S. W. 904, 219 S. W. 701 ; State v. Clinkenbeard 237 Mo. 273. (App.) 183 S. W. 553. Bnle in Michigan. Where, Ohio. Myer v. State, 10 Ohio Cir. though the court charged on man- Ct. K. 226, 6 O. C. D. 477. slaughter as well as murder, accused Tex. Stroud v. State (Cr. App.) denied that he did the killing and 225 S. W. 256 ; Garrison v. State, 114 did not request a charge on self -de- S. W. 128, 54 Tex. Or. R. 600 ; High v. fense, it was not necessary to charge State (Cr. App.) 98 S. W. 849 ; Porter on that subject. People v. Droste, v. State (Cr. App.) 86 S. W. 1018; 125 N. W. 87, 160 Mich. 66. Clement v. State (Cr. App.) 86 S. W. 22 State V. Davis, 58 S. W. 122, 104 1016; Schrimsher v. State (Cr. App.) Tenn. 501. 80 S. W. 1013; Shaw v. State (Cr. 2 3Norris v. State, 155 S. W. 165, App.) 73 S. W. 1046; Nicholson v. 127 Tenn. 437. State, 71 S. W. 969, 44 Tex. Cr. R. 434 ; 2 4 State V. Baker, 175 S. W. 64, Efird v. State, 71 S. W. 957, 44 Tex. 264 Mo. 339 ; State v. Harris, 134 S. Cr. R. 447 ; Black v. State (Cr. App.) W. 535, 232 Mo. 317. 47 S. W. 992; Arnold v. State (Cr. 2 6 State V. Simenson, 172 S. W. 601, App.) 40 S. W. 591 ; Sparks v. State, 263 Mo. 264. 23 Tex. App. 447, 5 S. W. 135. § 468 INSTRUCTIONS TO JURIES 832 3. Necessity of Requests to Make it Duty of Court to Give Further of More Specific Instructions § 468. General rule Where the instructions given are applicable to the .evidence, and good as far as they go,** and set forth with reasonable fullness 2 8 U. S. Northern Pac. R. Co. v. Mares, 123 U. S. 710, 8 Sup. Ct. 321, 31 L. Ed. 296 ; (C. C. A. Mass.) Lind- sey V. Testa, 200 F. 124, 118 C. O. A. 298 ; (C. C. A. Mo.) Hodge v. Chicago & A. Ry. Co., 121 F. 48, 57 C. C. A. 388 ; (C. C. A. Neb.) Frizzell v. Omaha St. Ry. Co., 124 F. 176, 59 C. O. A. 382; (C. C. A. Tex.) Texas & P. Ry. Co. V. Watson, 112 F. 402, 50 C. C. A. 230, affirmed 23 S. Ct. 681, 190 U. S. 287, 47 L. Ed'. 1057. Ala. Birmingham Ry., I/ight & Power Co. v. Wiggins, 54 So. 189, 170 Ala. 540; Vir^nia Bridge & Iron Co. V. Jordan, 42 So. 73, 143 Ala. 603, 5 Ann. Cas. 709; Ray v. Jackson, 90 Ala. 513, 7 So. 747 ; Skinner v. State, 30 Ala. 524; Hutchinson v. Dearing, 20 Ala. 798; Ewing v. Sanford, 19 Ala. 605; Hodges v. Branch Bank at Montgomery, 13 Ala. 455; Hunt V. Toulmin, 1 Stew. & P. 178. Ariz. Arizona Pub. Co. v. Harris, 181 P. 373, 20 Ariz. 446; Weather- ford V. Hanger, 146 P. 759, 16 Ariz. 427; Phoenix Ry. Co. v. Landls, 112 P. 844, 13 Ariz. 279, affirming judg- ment on rehearing 108 P. 247, 13 Ariz. 80. Ark. Dent v. People's Bank of Imboden, 175 S. W. 1154. 118 Ark. 157, 1 A. I>. R. 688; St. Louis, I. M. & .S. Ry. Co. V. Drumright, 166 S. W. 938, 112 Ark. 452; Fancher v. Ken- ner, 161 S. W. 166, 110 Ark. 177; Jones V. Seymour, 130 S. W. 560, 95 Ark. 593; St. Louis, I. M. & S. Ry. Co. V. Glossup, 114 S. W. 247, 88 Ark. 225 ; Fordvce v. Jackson, 56 Ark. 594. 20 S. W. .597. Cal. Peluso v. City Taxi Co., 182 P. 808, 41 Cal. App. 297; Morgan v. Ix)s Angeles Pac. Co., 108 P. 735, 13 Cal. App. 12 ; Viera v. Atchison, T. & S. F. Ry. Co., 101 P. 690, 10 Cal. App. 267; Crowley v. Strouse, 33 P. 456, 4 Cal. Unrep. 29; Scobt v. Wood, 81 Cal. 398, 22 P. 871. Colo. Ward v. Atkinson, 123 P. 120, 22 Colo. App. 134; Downing y. Tipton, 110 P. 70, 48 Colo. 364 ; Don- ley V. Bailey, 110 P. 65, 48 Colo. 373 ; Sandberg v. Borstadt, 109 P. 419, 48 Colo. 96 ; National Mut. Fire Ins. Co. V. Duncan, 98 P. 634, 44 Colo. 472, 20 L. R. A. (N. S.) 340; Whitehead V. Emmerich, 87 P. 790, 38 Colo. 13; WiUard v. Williams, 50 P. 207, 10 Colo. App. 140. Conn. Leone v. I. & F. Motor Car Co., 80 A. 520, 84 Conn. 463; Dlstin V. Bradley, 76 A. 991, 83 Conn. 466 ; Selleck v. Sugar Hollow Turnpike Co., 13 Conn. 453. D. C. Prudential Ins. Co. of Amer- ica V. Lear, 31 App. D. C. 184. na. Pensacola Electric Co. v. Bis- ■ sett, 52 So. 367, 59 Fla. 360. Ga. Nisbet v. Vandiver, 101 S. E. 761, 24 Ga. App. 572; Social Circle Cotton Mill Co. v. Ransom, 99 S. E. 238, 23 Ga. App. 605; Camp v. Bag- well & Bagwell, 99 S. E. 234, 23 Ga. App. 690 ; Everett v. Ingram, 82 S. B. 562, 142 Ga. 145; Wilkes v. Groover, 75 S. B. 353, 138 Ga. 407; Bunn v. Hargraves, 60 S. E. 223, 3 Ga. App. 518 ; Southern By. Co. v. Thompson, 58 S. E. 1044. 129 Ga. 367; Wheelwright V. Akin, 92 Ga. 394, 17 S. E. 610; Rut- ledge V. Hudson, 80 Ga. 266, 5 S. E. 93; Poullain v. PouUain, 76 Ga. 420, 4 S. E. 92 ; City of Atlanta v. Brown, 73 Ga. 630; Fuller v. City of Atlan- ta, 66 Ga. 80; Durand v. Grimes, 18 Ga. 693 ; Ellis v. Smith, 10 Ga. 253. Idaho. Barter v. Stewart Mining Co., 135 P. 68, 24 Idaho, 540. 111. Wilkinson v. Service, 94 N. E. 50, 249 111. 146, Ann. Gas. 1912A, 41 ; Hagen v. Schleuter, 86 N". E. 112, 236 111. 467, reversing Hagan v. Schlue- ter, 140 111. App. 84 ; B. B. Conover & Co. v. Baltimore & O. S. W. R. Co., 212 111. App. 29; Treptow v. Mont- gomery Ward & Co., 153 lU. App. 422. Ind. Elliott V. Elliott, 111 N. B. 833 REQUESTS OR PRAYERS FOR INSTRUCTIONS §468 the general principles applicable to the case, or to a particular is- 813, 61 Ind. App. 209; Chicago & B. K. Co. V. Hamerick, 96 N. B. 649, 50 Ind. App. 425, rehearing granted 97 N. B. 546 ; Citizens' Street Ry. Co. v. Abright, 42 N. E. 238, 14 Ind. App. 433 ; KeUer v. Reynolds, 40 N. B. 76, 12 Ind. App. 383 ; Lake Brie & W. R. Co. V. McHenry, 37 N. E. 186, 10 Ind. App. 525; EJppert v. HaU, 133 Ind. 417, 31 N. B. 74; Morntngstar v. Hardwick, 3 Ind. App. 431, 29 N. B. 929 ; Ricketts v. Richardson, 85 Ind. 508 ; Bishop v. Redmond, 83 Ind. 157 ; Fessler v. Grouse, 73 Ind. 64. Iowa. Peterson v. McManus, 172 N. W. 460, 188 Iowa, 522; Stilwell v. StilweU, 172 N. W. 177, 186 loWa, 177 ; McMuUen v. Harris, 147 N. W. 164, 165 .Iowa, 703 ; Hoffman v. Cedar Rapids & M. C. Ry. Co., 139 N. W. 165, 157 lotv^a, 655, Ann. Cas. 19150, 905 ; RockweU v. Ketchum, 128 N. W. 940, 149 Iowa, 507; O'Mara v. Jens- ma, 121 N. W. 518, 143 Iowa, 297 ; Lee V. Conrad, 117 N. W. 1096, 140 Iowa, 16; Aughey v. Windrem, 114 N. W. 1047, 137 Iowa, 315 ; Mitchell v. Chi- cago, R. I. & P. Ry. Co., 114 N. W. 622, 138 Iowa, 283 ; Capital City Brick & Pipe Co. V. City of Des Moines, 113 N. W. 835, 136 Iowa, 243 ; Vorhes v. Buchwald, 112 N. W. 1105, 137 Iowa, 721; Bowder v. Tiffany, 91 N. W. 895, 118 Iowa, 130 ; Dashiel v. Harsh- man, 85 N. W. 85, 113 Iowa, 283; Keyes v. City of Cedar Falls, 78 N. W. 227, 107 Iowa, 509 ; Wimer v. AU- haugh, 78 Iowa, 79, 42 N. W. 587, 16 Am. St. Rep. 422 ; Koehler v. Wils6n, 40 Iowa, 183 ; McCausland v. Cresap, 3 G. Greene, 161. Kan. Smith v. St. L. & S. F. R. Co., 148 P. 759, 95 Kan. 451 ; Ander- son V. Heasley, 148 P. 738, 95 Kan. 572; Hamilton v. Atchison, T. & S. F. Ry. Co., 148 P. 648, 95 Kan. 353; Wghera v. Wheat, 116 P. ©16, 85 Kan. 458. Ky. Murphy v. Hagan, 173 S. W. 1146, 163 Ky. 407; Cincinnati, N. O. & T. P. Ry. Co. V. Martin, 142 S. W. 410, 146 Ky. 260; Louisville, H. & St. L. Ry. Co. V. Roberts, 139 S. W. 1073, 144 Ky. 820; Madisonville, H. & E. R. Co. V. Thomas, 130 S. W. 975, 140 Ky. 143; West Kentucky INST.TO JUEIES— 53 Coal Co. V. Davis, 128 S. W. 1074, 138 Ky. 667; Loughridge v. Ball, 118 S. W. 321; Louisville & N. R. Co. v. Simrall's Adm'r, 127 Ky. 55, 104 S. W. 1011, 31 Ky. Law Rep. 1269, pe- tition for modification of opinion de- nied 104 S. W. 1199, 32 Ky. Law Rep. 240 ; Louisville & N. R, Co. v. Bulling, 15 Ky. Law Rep. (abstract) 752. Me. Murchle v. Gates, 78 Me. 300, 4 A. 698. Md. Capital Traction Co. t. Cent- ner, 87 A. 904, 120 Md. 78. Mass. Leahy v. Standard Oil Co. of New York, 112 N. E. 950, 224 Mass. 352; Cashman v. Proctor, 86 N. E. 284, 200 Mass. 272 ; Baldwin v. Ameri- can Writing Paper Co., 82 N. E. 1, 196 Mass. 402 ; Cameron v. New England Telephone & Telegraph Co., 65 N. E. 385, 182 Mass. 310; Caswell v. Fel- lows, 110 Mass. 52 ; Hall v. Weir, 1 Allen, 261. Mich. Schneider v. C. H. Little Co., 166 N. W. 912, 200 Micli. 361; Wood V. Standard Drug Store, 157 N. W. 403, 190 Mich. 654 ; In re Bailey's Estate, 153 N. W. 39, 186 Mich. 677; Taylor v. Indiana & Michigan Elec- tric Co., 151 N. W. 739, 184 Mich. 578, Ann. Cas. 1915B, 294; Hammond v. Porter, 114 N. W. 64, 150 Mich. 328 ; Mahiat v. Oodde, 64 N. W. 194, 106 Mich. 387; Pickard v. Bryant, 92 Mich. 430, 52 N. W. 788; Barton v. Gray, 57 Mich. 622, 24 N. W. 638; Rankin v. West, 25 Mich. 195. Minn. Likum v. Porter, 154 N. W. 1070, 131 Minn. 274 ; Smith v. Great Northern Ry. Co., 153 N. W. 513, 132 Minn. 147, order modified 155 N. W. 1040, 132 Minn. 147; Blakely v. J. Neils Lumber Co., 151 N. W. 182, 128 Minn. 465; Campbell v. Canadian Northern Ry. Co., 144 N. W. 772, 124 Minn. 245; Krulic v. Petcoff, 142 N. W. 897, 122 Minn. 517, Ann. Cas. 1914D, 1056; Ferber v. State Bank of Pine Island, 133 N. W. 611, 116 Minn. 261; Hanson v. Hellie, 120 N. W. 341, 107 Minn. 375; Bailed v. Grand Forks Lumber Co., 119 N. W. 786, 107 Minn. 192 ; McCormick Har- vesting Mach. Co. V. McNicholas, 69 N. W. 36, 66 Minn. 384; Clapp v. Minneapolis & St. L. Ry. Co., 36 Minn. §468 INSTRUCTIONS TO JURIES 834 6, 29 N. W. 340, 1 Am., St. Rep. 62&; Le Clair v. First Div. St. P. & P. R. Co., 20 Minn. 9 (Gil. 1); Egan v. Faendel, 19 Minn. 231 (Gil. 191) ; Jas- pers V. Lano, 17 Minn. 296 (Gil. 273) ; Warner v. My rick, 16 Minn. 91 (Gil. 81); Hunter v. Jones, 13 Minn. 307 (Gil. 282). Miss. Yazoo & M. V. R. Co. v. Messina, 67 So. 963, 109 Minn. 143; Lindsey Wagon Co. v. Nix, &7 So. 459, 108 Miss. 814. Mo. Dale v. Smith (App.) 185 S. W. 1183; Santag v. Ude, 177 S. W. 659, 191 Mo. App. 617 ; Davis v. Met- ropolitan St. Ry. Co., 176 S. W. 1067, 188 Mo. App. 128; Eversole v. Wa- bash R. Co., 155 S. W. 419, 249 Mo. 523; Richardson v. Metropolitan St. Ry. Co., 147 S. W. 1126, 166 Mo. App. 162; Booker v. South- West Missouri R. Co., 128 S. W. 1012, 144 Mo. App. 273; Jenkins v. Olopton, 121 S. W. 759, 141 Mo. App. 74 : Clack v. Kan- sas City Electrical Wire Subway Co., 119 S. W. 1014, 138 Mo. App. 205; Moore' v. Missouri Pae. Ry. Co., 116 S. W. 440, 136 Mo. App. 210; War- rington V. Kallauner, 115 S. W. 492, 135 Mo. App. 5; Moss v. Missouri Pac. Ry. Co., 107 S. W. 422, 128 Mo. App. 385; Ghere v. Zey, 107 S- W. 418, 128 Mo. App. 362; Flfiherty v. St. Louis Transit Co., 106 S. W. 15, 207 Mo. 318; Cornwell v. St. Louis Transit Co., 80 S. W. 744, 106 Mo. App. 135 ; Goetz v. Ambs, 27 Mo. 28 ; .Johnson v. Vette, 77 Mo. App. 568; Haymaker v. Adams, 61 Mo. App. 581. Mont. Schumacher v. Murray Hospital, 193 P. 397, 58 Mont 447; Wallace v. Chicago, M. & P. S. Ry. Co., 157 P. 955, 52 Mont. 345; Kirk V. Smith, 138 P. 1088, 48 Mont. 489 ; Frederick v. Hale, 112 P. 70, "42 Mont. 153. Neb. Van Dom v. Kimball, 160 N. W. 953, 100 Neb. 590; Edwards & Bradford Lumber Co. v. Lamb, 145 N. W. 703, 95 Neb. 263 ; Stoeker v. Nath- auson, 98 N. W. 1061, 5 Neb. (Unof.) 435, 70 Jl. R. A. 667 ; Republican Val- ley R. Co. V. Fink, 18 Neb. 89, 24 N. W. 691; Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578, 20 N. W. 860, 49 Am. Rep. 724; Republican Val- ley R. Co. V. Fellers, 16 Neb. 169, 20 N. W. 217 ; Burlington & M. R. R. Co. V. Schluntz, 14 Neb. 421, 16 N. W. 439; Sioux City R. Co. v. Brown, 13 Neb. 317, 14 N. W. 407. N. H. Turner v. Cocheco Mfg. Co., 77 A. 999, 75 N. H. 521 ; Hooksett v. Amoskeag Mfg. Co., 44 N. H. 105; Goodrich v. Eastern R. R., 38 N. H. 390 ; Wright v. Boynton, 37 N. H. 9, 72 Am. Decj 319. N. J. Lange v. New York, S. & W. R. Co., 99 A. 346, 89 N. J. Law, 604. N. M. King V. Tabor, 110 P. 601, 15 N. M. 488. N, Y. Dooley v. Press Pub. Co., 156 N. Y. S. 381, 170 App. Div. 492 ; Bresslin v. Star Co., 151 N. Y. S. 660, 166 App. Div. 89, affirming judgment 148 N. Y. S. 295, 85 Misc. Rep. 609; Zvonik v. Interurtoan St. Ry. Co. (Sup.) 88 N. Y. S. 399; Powell v. Jones, 42 Barb. 24. N. C. Baggett v. Lanier, 100 S. E. 254, 178 N. O. 129 ; Cole v. Boyd, 95 S. E. 778, 175 N. C. 555; Webb. v. Rosemond, 90 S. E. 306, 172 N. C. 848 ; Marcom v. Durham & S. R. Co., 81 S. B. 290, 165 N. C. 259 ; Todd v. Mack- ie, 76 S. E. 245, 160 N. C. 352 ; Gay v. Mitchell, 60 S. E. 426, 14© N. C. 509 ; Kendrick v. Dellinger, 117 N. O. 491, 23 S. B. 438; Gwaltney v. Scottish Carolina Timber & Land Co., 115 N. C. 579, 20 S. E. 465; Boon v. Mur- phy, 108 N. C. 187, 12 S. B. 1032; Morgan v. Lewis, 95 N. C. 296 ; Boy- kin v. Perry, 49 N. O. 325 ; Brown v. Morris, 20 N. C. 565. N. D. McGregor v. Great Northern Ry. Co., 154 N. W. 261, 31 N. D. 471, Ann. Cas. 1917E, 141 ; Zilke v. John- son, 132 N. W. 640, 22 N. D. 75, Ann. Cas. 1913E, 1005. Ohio. Steen v. Friend, 20 Ohio Cir. Ct. R. 459, 11 O. 0. D. 235; Cleve- land, C, C. & St. L. Ry. Co. V. Rich- erson, 19 Ohio Cir. Ct. R. 385, 10 O. C. D. 326; Clark v. Clark, 16 Ohio Cir. Ct. R. 103, 8 'O. C. D. 752 ; Cin- cinnati & H. Turnpike Co. v. Hester, 12 Ohio Cir. Ct. R. 350, 5 O. O. D. 690; Queen Ins. Co. v. Leonard, 9 Ohio Cir. Ct. R. 46, 6 O. C. D. 49. Okl, Muskogee Electric Traction Go. V. Rye, 148 P. 100, 47 Okl. 142; Seay v. Plunkett, 145 P. 490, 44 Okl. 794 ; St. Louis & S. P. R. Co. v. Cro- 835 BEQUESTS OR PRAYERS FOR INSTRUCTIONS §468 well, 127 P. 1063, 33 Okl. 773 ; Moore V. O'Dell, 111 P. 308, 27 Okl. 194. Or. McGee v. Carlton Lumber Co., 151 P. 652, 77 Or. 446; Devroe v. Portland Ry., Light & Power Co., 131 P. 304, 64 Or. 547; Kincart v. Sham- brook, 128 P. 10O3, 64 Or. 27. Pa. Yeager v. Anthracite Brewing Co., 102 A. 418, 259 Pa. 123 ; Eichen- hofer V. City of Philadelphia, 93 A. 1065, 248 Pa. 365; Geiger v. Pitts- burgh Rys. Co., 93 A. 342, 247 Pa. 287 ; Bright V. Ruthenian Greek Catholic Congregation, 92 A. 131, 246 Pa. 156; Irwin V. Pennsylvania R. Co., 75 A. 19, 226 Pa. 156; Serfass v. Dries- bach, 141 Pa. 142, 21 A. 523 ; Froth- ingham v. Laflin & Rand Powder Co., 4 A. 720; Katzenberg v. Oberndorf, 70 Pa. Super. Ct. 567 ; Little v. Fear- on, 49 Pa. Super. Ot. 634 ; Spring City Brick Co. v. Henry Martin Brick Mach. Mfg. Co., 39 Pa. Super. Ct. 7; McGrew v. Lippincott, 1 Pittsb. R. 444. S. O. Stokes V. Murray, 87 S. B. 71, 1(S S. C. 395; Cutter v. Mallard Lumber Co., 83 S. E. 595, 99 S. O. 231; Norton v. Columbia Electric St. Ry. Light & Power Co., 04 S. E. 962, 83 S. C. 26; Rochester v. Bull, 58 S. E. 766, 78 S. O. 249; Jennings V. Edgefield Mfg. Co., 52 S. E. 113, 72 S. C. 411; Sutton v. Clark, 38 S. E. 150, 59 S. C. 440, 82 Am. St. Rep. 848 ; Congdon v. Morgan, 13 S. C. 190. Tenn. Chicago Guaranty Fund Life Soc. V. Ford, 58 S. W. 239, 104 Tenn. 533 ; Maxwell v. Hill, 89 Tenn. 584, 15 S. W. 253; East Tennessee, V. & G. R. Co. V. Toppins, 10 Lea, 58 ; Thompson v. Commeucial Bank, 3 Cold. 46. Tex. City of San Antonio v. New- nam (Civ. App.) 218 S. W. 128 ; Wich- ita Valley Ry. Co. v. Somerville (Civ. App.) 179 S. W. 671; , Phillip-Carey Co. V. Manes (Oiv. App.) 177 S. W. 158; Planters' Oil Co. v. Keebler (Civ. App.) 170 S. W. 120 ; Ft. Worth & D. C. Ry. Co. V. Scheer (Oiv. App.) 169 S. W. 1069 ; Ross v. Jackson (Oiv. App.) 165 S. W. 513 ; Western Union Telegraph Co. v. Forest (Civ. App.) 157 S. W. 204; Pullman Co. v. Cus- ter (Civ. App.) 140 S. W. 847; Lef- kovitz V. Sherwood (Civ. App.) 136 S. W. 850; Lattimore v. Tarrant County, 124 S. W. 205, 57 Tex. 'Civ. App. 610; Williamson v. Chicago, R. I. & G. Ry. Co., 122 S. W. 897, 57 Tex. Civ. App. 502; Missouri, K. & T. Ry. Co. of Texas v. Williams (Civ. App.) 117 S. W. 1043; Jesse French Piano & Organ Co. v. Garza & Co., 116 S. W. 150, 53 Tex. Civ. App. 346; Pope V. Taliaferro, 115 S. W. 309, 51 Tex. Civ. App. 217 ; Wade v. Galves- ton, H. & S. A. Ry. Co. (Civ. App.) 110 S. W. 84 ; Gonzales v. Galveston, H. & S. A. Ry. Co. (Civ. App.) 107 S. W. 89'©; Waters-Pierce Oil Co. v. SneH, 106 S. W. 170, 47 Tex. Civ. App. 413; Texas & N. O. R. Co. v. Scarborough (Civ. App.) 104 S. W. 408, judgment affirmed 108 S. W. 805, 101 Tex. 436; St. Louis, S. F. & T. Ry. Co. V. Knowles, 99 S. W. 867, 44 Tex. Civ. Apt>. 172 ; Galveston, Houston & S. A. Ry. Co. V. Bonn, 99 S. W. 413, 44 Tex. Civ. App. 631 ; Galveston, H. & S. A. Ry. Coj V. Stoy, 99 S. W. 135, 44 Tex. Oiv. App. 448; Peacock V. Coltrane, 99 S. W. 107, 44 Tex. Civ. App. 530; Galveston, H. & S. A. Ry. Co. V. Roberts (Civ. App.) 91 S. W. 375 ; Galveston, H. & S. A. Ry. Co. v. Fitzpatrick (Civ. App.) 91 S. W. 355 ; Freeman v. Slay (Civ. App.) 88 S. W. 404, reversed 91 S. W. 6, 99 Tex. 514; Oneal V. Weisman, 88 S. W. 290, 39 Tex. Civ. App. 592; San Antonio & A. P. Ry. Co. V. Dolan (Civ. App.) 85 S. W. 302 ; Missouri, K. & T. Ry. Co. of Texas v. Baker, 81 S. W. 67, 35 Tex. Civ. App. 542 ; Keas v. Gordy, 78 S. W. 385, 34 Tex. Civ. App. 310; Schwartzman v. Cabell (Civ. App.) 49 S. W. 113 ; Walker v. Pittman, 46 S. W. 117, 18 Tex. Civ. App. 519; Wright V. Solomon (Civ. App.) 46 S. W. 58; Western Union TeL Co. v. Seals (Civ. App.) 45 S. W. 964 ; Pace V. American Freehold Land & Mtg. Co., 43 S. W. 36, 17 Tex. Civ. App. 506 ; City of Waxahachie v. Connor (Civ. App.) 35 S. W. 692 ; Reichstetter V. Bostick (Civ. App.) 33 S. W. 158; Burnham v. Logan, 88 Tex. 1, 29 S. W. 1067; Eddy v. Still, 3 Tex. Civ. App. 3461, 22 S. W. 525; Adams v. Crenshaw, 74 Tex. Ill, 11 S. W. 1082; French v. McGinnis, 69 Tex. 19, 9 S. W. 323; Neyland v. Bendy, 69 Tex. 711, 7 S. W. 497; Smyth v. Caswell, 67 Tex. 567, 4 S: W. 848; § 468 INSTETJCTIONS TO JDEIES 836 sue/* a party desiring further or more specific instructions should Hays V. Hays, 66 Tex. 606, 1 S. W. 895 ; Bast v. Alford, 20 Tex. 226. irtali. Valiotis v. Utah-Apex Min- ing Co., 184 P. 802, 55 Utah, 151. Vt. De Nottbeck v. Chapman, 108 A. 338, 98 Vt. 378 ; Magoon v. Before, 50 A. 1070, 73 Vt. 231. Va. Adamson's Adm'r v. Norfolk & P. Traction Co., 69 S. B. 1055, 111 Va. 556. Wash. Beach t. City of Seattle,, 148 P. 39, 85 Wash. 379 ; Zolawenskl V. City of Aberdeen,- 129 P. 1090, 72 Wash. 95; Harris v. Brown's Bay Logging Co., 106 P. 152, 57 Wash. 8; AUend v. Spokane Falls & N. Ry. Co., 58 P. 244, 21 Wash. 324. W. Va. Jaeger v. City Ry; Co., 78 S. B. 59, 72 W. Va. 307. ■Wis. Barlow v. Foster, 136 N. W. 822, 149 Wis. 613 i Monaghan v. Northwestern Fuel Co., 122 N. W. 1066, 140 Wis. 457; Anderson v. Hor- lick's Malted Milk Co., 119 N. W. 342, 137 Wis. 569 ; Grotjan v. Rice, 102 N. W. 551, 124 Wis. 253 ; Kelly v. Hough- ton, 59 Wis. 400, 18 N. W. 326; Mur- phy V. Martin, 58 Wis. 276, 16 N. W. 603 ; Corcoran v. Harran, 55 Wis. 120, 12 N. W. 468 ; Page v. Town of Sump- ter, 53 Wis. 652, 11 N. W. 60 ; Lela v. Domasfce, 48 Wis. 623, 4 N. W. 794; Karber v. Nellis, 22 Wis. 215; Hay- ward V. Ormsbee, 11 Wis. 3 ; Chappell V. Cady, 10 Wis. 111. Wyo. Bunce v. McMahon, 6 Wyo. 24, 42 P. 23. 29 Ark. North American Union v. Oliphint, 217 S. W. 1, 141 Ark. 346. Colo. Ruby Chief Min. & Mill. Oo. V. Prentice, 52 P. 210, 25 Colo. 4; Denver Tramway Co. v. Crumbaugh, 48 P. 503, 23 Colo. 363. Conn. Wolfe v. Ives, 76 A.' 526, 83 Conn. 174, 19 Ann. Cas. 752; French V. Town of Waterbury, 44 A. 740, 72 Conn. 435. Ga. Fisher v. Shands, 102 S. B. 190, 24 Ga. App. 743; Ford v. Ford, 91 S. B. 42, 146 Ga. 164; Bishop v. Georgia Nat. Bank, 78 S. E. 947, 13 Ga. App. 38 ; Charleston & W. C. Ry. Co. V. Duckworth, 66 S. B. 1018, 7 Ga. App. 350 ; Morgan v. Chimn, 66 S, B. 965, 7 Ga. App. 268; Hamilton & Pritchett v. Jenkins, 66 S. E. 397, 7 Ga. App. 136; Savannah Electric Co. V. Jackson, 64 S. B. 680, 132 Ga. 559 ; Seaboard Air Line Ry. v. Bishop, 63 S. B. 785, 132 Ga. 37; Foote v. Kelley, 55 S. B. 1045, 126 Ga. 799 ; Holland v. Williams, 55 S. B. 1023, 120 Ga. 617; Savannah Electric Co. v. Mulllkin, 55 S. B. 945, 126 Ga. 722; Central of Georgia Ry. Co. v. McClifCord, 47 S. E. 590, 120 Ga. 90 ; Central of Georgia Ry. Co. V. Hardin, 40 S. B. 738, 114 Ga. 548; Southern Ry. Co. v. Lough- ridge, 89 S. E. 882, 114 Ga. 178 ; Kidd v., Huff, 31 S. E. 430, 105 Ga. 209. 111. Chicago & A. Ry. Co. v. Hat- field, 109 111. App. 556 ; Thode v. Peter Schoenhofen Brewing Co., 69 HI. App. 403. Ind. New Castle Bridge Co. v. Do- ty, 79 N. E. 485, 168 Ind. 259, trans- ferred from appellate court 76 N. E. 557, 37 Ind. App. , 84; Harness v. Steele, 64 N. B. 875, 159 Ind. 286; Tracy v. Hacket, 49 N. E. 18S, 19 Ind. App. 133, 65 Am. St. Rep. 398; Summit Coal Co. v. Shaw, 44 N. E. 676, 16 Ind. App. 9; Fitzgerald v. Goff, 99 Ind. 28 ; Ohamness v. Cham- ness, 58 Ind. 801; Burgett v. Burgett, 48 Ind. 78. Iowa. Blackmore v. City of Coun- cil Bluffs, 176 N. W. 869 ; Wagner v. Kloster, 175 N. W. 840, 188 Iowa, 174 ; Bean v. Bickley, 174 N. W. 675, 187 Iowa, 689. Kan. Judy v. Buck, 82 P. 1104, 72 Kan. 106; O'Brien v. Foulke, 77 P. 108, 69 Kan. 475; Roller v. James, 49 P. 630, 6 Kan. App. 919 ; Reamer V. . Columbia, 47 P. 186, 5 Kan. App. 543; Kansas Loan & Trust Co. v. Love, 45 P. 953, 4' Kan. App. 188. Ky. Illinois Cent. R. R. v. Jack- son, 79 S. W. 1187, 117 Ky. 900, 25 Ky. Law Rep. 2087; Garrett v. Thomas, 57 S. W. 611, 22 Ky. Law Rep. 490; Bogard v. Johnstone, 53 S. W. 651, 21 Ky. Law Rep. 965; White v. Cole, 47 S. W. 759, 20 Ky. Law Rep. 858; Anderson v. Baird, 40 S. W. 923, 19 Ky. Law Rep. 444; Griffin v. Gor- man, 18 Ky. Law Rep. (abstract) 879 ; Pierce v. Brown, 12 Ky. Law Rep. (abstract) 292; Louisville, N. A. & 837 REQUESTS OK PKATBKS FOK INSTRUCTIONS §468 request them, and in the absence of such a request he cannot com- plain of omissions in the charge, unless it plainly appears that the C. R. Co. V. Davidsqi^ 12 Ky. Law Eep. (abstract) 142.tij|^ Mich. Miller v. SSiimway, 98 N. W. 385, 135 Mich. 654 ; Bokenfohr v. Bush, 75 N. W. 929, 117 Mich. 444; Record Pub. Co. v. Merwin, 72 N. W. 998, 115 Mich. 10. Minn. Ellington v. Great North- ern Ry. Co., 100 N. W. 218, 92 Minn. 470; Olson v. Aubolee, 99 N. W. 1128, 92 Minn. 312. Miss. Bacon v. Bacon, 24 So. 968, 76 Miss. 458. Mo. Thompson v. Bucholz, 81 S. "W. 490, 107 Mo. App. 121 ; Minter v. Bradstreet Co., 174 Mo. 444, 73 S. W. 668; State ex rel. Hospes v. Branch, 52 S. W. 390, 151 Mo. 622; Feary v. O'Neill, 50 S. W. 918, 149 Mo. 467, 73 Am. St. Rep. 440; Coleman v. Drane, 116 Mo. 387, 22 S. W. 801; Hall V. Jennings, 87 Mo. App. 627; Young V. Keller, 16 Mo. App. 551, memorandum; Cahill v. Liggett & Meyers Tobacco Co., 14 Mo. App.' 596, memorandum; State ex rel. Tub- besing v. Haase, 6 Mo. App. 586, mem- orandum. Mont. Kirk v. Montana Transfer Co., 184 P. 987, 56 Mont. 292; Kan- sier V. City of Billings, 184 P. 630, 56 Mont. 250; Gillies v. Clarke Fork Coal Min. Co., 80 P. 370, 32 Mont. 320. Neb. McCormick Harvesting Mach. Co. V. Carpenter, 95 N. W. 617, 1 Neb. (Unof.) 273; Peterson v. State, 88 N. W. 549, 63 Neb. 251. N, J. Camden & A. R. Co. v. Wil- liams, 40 A. 634, 61 N. J. Law, 646. N. Y. Felice v. New York Cent. & H. R. R. Co., 43 N. Y. S. 922, 14 App. Div. 345. N. C. Buchanan v. Cranberry Fur- nace Co., 101 S. E. 518, 178 N. C. 643 ; Beci V. Sylva Tanning Co., 101 S. E. 498, 179 N. C. 123 ; Sears v. Atlan- tic Coast Line R. Co., 100 S. E. 433, 178 N. C. 285 ; Ives v. Atlantic & N. C. R. Co., 55 S. B. 74, 142 N. C. 131, 115 Am. St. Rep. 732, 9 Ann. Cas. 188 ; Cowles V. Lovin, 47 S. E. 610, 135 N. C. 488; Justice v. Galler#42 S. E. 850, 131 N. C. 393 ; Patterson v. Mills, 28 S. E. 368, 121 N. C. 258. MT. D. Huber v. Zeiszler, 164 N. W. 131, 37 N. D. 556 ; Ruddick v. Buchan- an, 163 N. W. 720, 37 N. D. 132. Okl. Muskogee Electric Traction Co. v. Baton, 152 P. 1109, 49 Okl. 344; Chicago Live Stock Commission Co. v. Fix, 78 P. 316, 15 Okl. 37 ; Same v. Connally, 78 P. 318, 15 Okl. 45. Or. Page v. Finley, 8 Or. 45. Pa. Kaufman v. Pittsburg, O. & W. R. Co., 60 A. 2, 210 Pa. 440 ; Min- eral R. & Min. Co. V. Auten, 41 A. 327, 188 Pa. 568, 43 Wkly. Notes Cas. 158; Leary v. Electric Traction Co., 36 A. 562, 180 Pa. 136; Poorman v. Smith's Ex'rs, 2 Serg. & R. 464; Craig V. Borough of Shippensburg, 11 Pa. Super. Ct. 490; Dougherty v. Loebe- lenz, 9 Pa. Super. Ct. 344, 43 Wkly. Notes Cas. 447. S. C. Langley v. Southern Ry. Co., 101 S. E. 286, 113 S. C. '45 ; Smooth- ing Iron Heater Co. v. Blakely, 77 S. E. 945, 94 S. C. 224; Milam v. South- ern Ry. Co., 36 S. E. 571, 58 S. O. 247 ; Rutherford v. Southern Ry. Co., 35 S. E 136, 56 S. C. 446 ; CrossweU V. Connecticut Indemnity Ass'n, 28 S. E. 200, 51 S. C. 103 ; Long v. South- ern Ry. Co., 27 S. B. 531, 50 S. C. 49 ; State v. Williams, 18 S. C. 605. S. D. Lunschen v. Barnhart, 131 N. W. 501, 27 S. D. 449; Winn v. San- born, 75 N. W. 201, 10 S. D. 642. Tenn. Nashville, C. & St. L. Ry. v. Heikens, 79 S. W. 1038, 112 Tenn. 378, 65 L. R. A. 298. Tex. Missouri, K. & T. Ry. Co. of Texas v. Parrott, 96 S. W. 950, 43 Tex. Civ. App. 325 ; Turner v. Faubi- on, 81 S. W. 810, 36 Tex. Civ. App. 314 ; Galveston City Ry. Co. v. Chap- man, 80 S. W. 856, 35 Tex. Civ. App. 551; Texas Cotton Products Co. v. Denny Bros. (Civ. App.) 78 S. W. 557 ; Western Union Tel. Co. v. Crawford (Civ. App.) 75 S. W. 843; Abilene Cotton Oil Co. V. Briscoe, 66 S. W. 315, 27 Tex. Civ. App. 157; Interna- tional & G. N. R.' Co. V. Harris (Civ. App.) 65 S. W. 885, judgment affirmed 67 S. W. 315, 95 Tex. 346 ; Mayfield v. Robinson, 55 S. W. 399, 22 Tex. Civ. App. 3,85; Gulf, W. T. &,P. Ry. Co. v. § 468 INSTEUCTIONS TO JURIES 838 jury were misled by such omissions,^* and where an instruction, tech- nically correct is couched in terms which in the opinion of a party are liable to be misunderstood or misapplied by the jury, it is his duty to call the attention of the court to the sjipposed defect, and present a suitable instruction, in default of wmph. he cannot com- plain.*^ Another statement of the above rule is that when the jury is instructed, and when the instructions given do not impliedly with- Staton (Civ. App.) 49 S. W. 277; Graves v. Hillyer (Civ. App.) 48 S. W. 889 ; Van 2:an(it v. Brantley, 42 S. W. 617, 16 Tex. Civ. App. 420; Clary v. Myers (Civ. App.) 40 S. W. 633 ; Reyn- olds V. Weinman (Civ. App.) 40 S. W. 560; Tomson v. Heidenheimer, 40 S.' W. 425, 16 Tex. Civ. App. 114 ; Muncy v. Mattfield (Civ. App.) 40 S. W. 845. 'Wash. Hiscock v. Phinney, 142 P. 461, 81 Wash. 117, Ann. Oas. 1916B, 1044; Lownsdale v. Gray's Harbor Boom Co., 58 P. 663, 21 Wash. 542. ■W. Va. Henry C. Werner Co. v. Calhoun, 46 S. E. 1024, 55 W. Va. 246. Illustrations of- omissions held npt objectionable, in absence of request for further instructions. In suit for commissions claimed to have been earned by purchasing land for defendant, an instruction that, if plaintiff exceeded his authority by making a larger first payment, or pay- ing more per acre, than authorized, and defendant knew all the material facts in connection with his acts, and accepted the benefits resulting, de- fendant by his conduct ratified plain- tiff's unauthorized act, being the cor- rect rule, if defendant desired an in- struction as to what constituted ma- terial facts as to acts in excess of authority, he should have expressly called attention to the omission. Ma- hon V. Rankin, 102 P. 608, 54 Or. 328, rehearing denied 103 P. 53. Where, in an action for the death of a person at a crossing, the court charged that the trainmen must use ordinary care to prevjcnt injuring persons on the crossing, the error in an instruction authorizing a recovery if the train- men negligently failed to have on the engine a sufficient headlight to en- able them to see persons using the crossing or to enable such persons to see the train, in that it failed to state what would be a sufficient heiad- light, was merely one of omission, which called for correction by request for an appropriate instruction. Chi- cago, R. I. & G. Ey. Co. V. Clay, 119 S. W. 730, 55 Tex. Civ. App. 526. An instruction in an action for nondeliv- ery of a telegram that a company re- ceiving for transmission a message and subsequently discovering that the addressee lives beyond its free deliv- ery limits must notify the sender that additional charges are demanded for delivery, and where it fails to do so, and that negligence as the proximate cause i*esults in injury to the sender, it is liable, is correct as a general proposition, and the company desiring a modification, based on the fact that addressee's residence was known to the sender who imid only the charge to the terminal office, must request it. Lyles V. Western Union Telegraph Co., 65 S. E. ^32, 84 S. C. 1, 137 Am. St. Rep. 829. 3 Colo. Heron v. Weston, 100 P. 1130, 44 Colo. 379. Mich. Ward v. Cook, 122 N. W. 785, 158 Mich. 283. Mo. Brown v. Globe Printing Co., 112 S. W. 462, 213 Mo. 611, 127 Am. St. Rep. 627; Fillingham v. St. Louis Transit Co., 102 Mo. App. 573, 77 S. W. 314. Neb. Webb v. Omaha & S. I. Ry. Co., 164 N. W. 564, 101 Neb. 596. N. D. -Shellberg v. Kuhn, 160 N. W. 504, 85 N. D. 448. Okl. Branham v. State, 182 P. 525, 16 Okl. Cr. 808. Pa. Burkholder v. Stahl, 58 Pa. (8 P. F. Smith) 371. Tex. riuderman-Dolson Co. v. Hope (Tex. Civ. App.) 118 S. W. 216. 31 YeoHan v. State, 115 N. W. 784, 81 Neb. 244, "judgment modified on re- hearing 115 N. W. 997, 81 Neb. 252. 839 REQUESTS OR' PRAYERS FOR INSTRUCTIONS §468 hold from the jury some of the issues or elements proper for their consideration, error cannot be founded upon the failure of the court to charge upon some particular phase of the evidence, or some particular feature of the case, without a request therefor.** This rule applies in criminal cases.** 3 2 Carleton v. State, 61 N. W. 699, 43 Neb. 373. 3 3 U. S. Humes v. United States, 18 S. Ct. 602, 170 U. S. 210, 42 L. Ed. 1011 ; (C. C. A. Ky.) Steers v. United States, 192 F. 1, 112 0. C. A. 423 ; (O. C. A. La.) Alexis v. United States, 129 F. 60, 63 C. C. A. 502; (C. 0. A. Mass.) Johnson v. United States, 170 F. 581, 95 O. C. A. 661 ; (C. C. A. Mo.) Ripper V. United States, 179 F. 497, 103 G. C. A. 478, denying rehearing 178 F. 24, 101 O. C. A. 152 ; (C. C. A. Or.) Eid- dell v. United States, 244 F. 695, 157 C. C. A. 143, certiorari denied 38 S. Ct. 134, 245 U. S. 668, 62 L. Ed. 539; (O. C. A. Wash.) Louie Ding v. United States, 246 F. 80, 158 C. C. A. 306. Ala. Murphy v. State, 71 So. 967, 14 Ala. App. 78; Jones v. State, 58 So. 250, 176 Ala. 20; Sanderson v. ' State, 53 So. 109, 168 Ala. 109 ; Win- ter V. State, 26 So. 949, 123 Ala. 1; Murphy v. State, 54 Ala. 178; Dave V. State, 22 Ala. 23. Ariz. Bush V. State, 168 P. 508, 19 Ariz. 195 ; Lenord v. State, 137 P. 412, 15 Ariz. 137. Ark. Hays V. State, 196 S. W. 123, 129 Ark. 324; Van Vallcinburgh v. State, 142 S. W. 843, 102 Ark. 16; Lackey v. State, 55 S. W. 213, 67 Ark. 416; Holt V. State, 47 Ark. 196, 1 S. W. 61. Cal. People V. Martin (Cal. App.) 185 P. 1003; People v. Stirgios, 136 P. 957, 23 Cal. App. 48 ; Pcoele v. An- thony, 129 P. 968, 20 Cal. App. 586; People V. White, 90 P. 471, 5 Cal. App. 329; People v. Weber, 86 P. 671, 149 Cal. 325; People v. Oliveria, 59 P. 772, 127 Cal, 376 ; People v. Appleton, 52 P. 582, 120 Cal. 250; People v. Winthrop, 50 P. 390, 118 Cal. 85 ; P.eo- ple V. Fice, 97 Cal. 459, 32 P. 531; People V. Olsen, 80 Cal. 122, 22 P. 125; People v. Marks, 72 Cal. 46, 13 P. 149; People t. Gray, 66 Cal. 271, 5 P. 240; People v. Wong Ohow, 4 P. 763 ; People v. Haun, 44 Cal. 96. Colo. West V. People, 156 P. 137, 60 Colo. 488; Mow v. People, 72 P. 1069, 31 Colo. 351. Fla. Hobbs v. State, 81 So. 444, 77 Fla. 228; Miller v. State, 80 So. 314, 76 Fla. 518; Hicks v. State, 78 So. 270, 75 Fla. 311; Cross v. State, 74 So. 593, 73 Fla. 530 ; Hemdon v. State, 74 So. 511, 73 Fla. 451 ; Gill- yard T. State, 61 So. 641, 65 Fla. 322; Padgett V. State, 59 So. 946, 64 Fla. 389, Ann. Cas. 1914B, 897; Carr v. State, 34 So. 892, 45 Fla. 11; Clem- mons V. State, 30 So. 699, 43 Fla. 200 ; Rawlins v. State, 24 So. 65, 40 Fla. 155 ; Lovett v. State, 30 Fla. 142, 11 So. 550, 17 L. R. A. 705; Blount v. State, 30 Fla. 287, 11 So. 547; Reed V. State, 16 Fla. 564. Ga. Bush V. State, 101 S. E. 695, 24 Ga. App. 544; Smith v. State,- 98 S. E. 115, 23 Ga. App. 140; Bush v. State, 97 S. E. 554, 23 Ga. App. 126; Easterling v. State, 97 S. E. 553, 23 Ga. App. 92 ; Johnson v. S^ate, 97 S. E. 515, 148 Ga. 546; Quinn v. State, 97 S. E. 84, 22 Ga. App. 632 ; Moon v. State, 97 S. E. 81, 22 Ga. App. 617; Grigg V. State, 96 S. E. 1049, 22 Ga. App. 637; Cooley v. State, 95 S. B. 871, 22 Ga. App. 263; McNulty v. State, 95 S. E. 304, 21 Ga. App. 783; Butler V. State, 94 S. B. 267, 21 Ga. App. 149; Conley v. State, 94 S. E. 261, 21 Ga. App. 134 ; Purtell v. State, 93 S. E. 227, 20 Ga. App. 723 ; Partee V. State, 92 S. E. 306, 19 Ga. App. 752 ; KilUan v. State, 92 S. E. 227, 19 Ga. App. 750; Hamilton v. State, 89 S. E. 449, 18 Ga. App. 295 ; Robinson v. State, 89 S. B. 434, 18 Ga. App. 394 ; Duhart v. State, 89 S. B. 343, 18 Ga. App. 287; Wells v. State, 86 S. B. 650, 17 Ga. App. 301 ; Braxley v. State, 86 S. B. 425, 17 Ga. App. 196; Wright V. State, 85 S. E. 823, 16 Ga. App. 572 ; Sable V. State, 82 S. E. 379, 14 Ga. App. 816 ; Ward v. State, 81 S. B. 130, 14 Ga. App. 424 ; Carter v. State, 80 S. B. 995, 141 Ga. 308; HoUis v. ^468 INSTRUCTIONS TO JURIES 840 A statutory provision that the court shall state to the jUry all State, 79 S,. E. 85, 13 Ga. App. 307; Dickens v. State, 73 S. E. 826, 137 Ga. 523; Renfroe v. State, 72 S. B. 520, 10 Ga. App. 38 ; Whitley v. State, 68 S. B. 863, 8 Ga. App. 165 ; Brund- age V. State, 67 S. E. 1051, 7 Ga. App. 726; Lepinsky v. State, 66 S. E. 965, 7 Ga. App. 285; Taylor v. State, 62 S. E. 1048, 5 Ga. App. 237; Randall V. State, 52 S. E. 889, 124 Ga. 657; Taylor v. State, 49 S. E. 303, 121 Ga. 348 ; Owens v. State, 47 S. B. 513, 120 Ga. 205; Green v. State, 45 S. E. 598, 118 Ga. 755; GilDSon v. State, 39 S. B. 948, 114' Ga. 34 ; Robinson v. State, 39 S. E. 862, 114 Ga. 56; Wilson v. State, 69 Ga. 224 ; Clark v. State, 68 Ga. 291; Farris v. State, 35 Ga. 241. Idaho. State v. Harness, 76 P. 788, 10 Idaho, 18; People v. Biles, 2 Idaho, 114, 6 P. 120. 111. People V. Lucas, 91 N. B. 659, 244 111. 603; McDonall v. People, 48 N. E. 86, 168 111. 93. Ind, Brewster v. State, 115 N. B. 54, 186 Ind. 369; Bartlow v. State, 109 N. E. 201, 183 Ind. 398 ; Oromer V. State, 52 N. E. 239, 21 Ind. App. 502; Voght v. State, 43 N. B. 1049, 145 Ind. 12 ; Leeper v. State, 12 Ind. App. 637, 40 N. B. 1113 ; Marshall v. State, 123 Ind. 128, 23 N. E. 1141; Rauck V. State, 11 N. E. 450, 110 Ind. 384 ; Barnett v. State, 100 Ind. 171 ; Behymer v. State, 95 Ind. 140; Rol- lins V. State, 62 Ind. 46; Jones v. State, 49 Ind. 549. lo-wa. State v. Geier, 167 N. W. 186, 184 Iowa, 874 ; State v. Cameron, 158 N. W. 563, 177 Iowa, 379; State V. Brandenherger, 130 N. W. 1065, 151 Iowa, 197 ; State v. Manning, 128 N. W. 345, 149 Iowa, 205; State v. Whlmpey, 118 N. W. 281, 140 Iowa, 199 ; State v. Todd, 82 N. W. 322, 110 Iowa, 631; State v. Phlpps, 95 Iowa, 487, 64 N. W. 410; State v. Jellnek, 95 Iowa, 420, 64 N. W. 259; State V. V,iers, 82 Iowa, 397, 48 N. W. 732 ; State V. lUsley, 81 Iowa, 49, 46 N. W. 977. Kan. State V. Tracy, 127 P. 610, 88 Kan. 153; State v. Shaw, 100 P. 78, 79 Kan. 396, 21 L. R. A. (N. S.) 27, 131 Am. St. Rep. 298 ; State v. Ross, 94 P. 270, 77 Kan. 341 ; City of Lin- coln Center v. Bailey, 67 P. 455, 64 Kan. 885 ; State v. Cox, 1 Kan. App. 447, 40 P. 816; State v. Rook,, 42 Kan. 419, 22 P. 626; State v. Peter- son, 38 Kan. 204, 16 P. 26S ; State v. Pfefferle, 36 Kan. 90, 12 P. 406 ; State V. Shenkle, 12 P. 309, 36 Kan. 43. la. State v. Tibbs, 48 La. Ann. 1278, 20 So. 735; State v. Scott, 12 La. Ann. 386. Me. State v. Straw, 33 Me. 554. Mass. Commonwealth v. Meserve, 154 Mass. 64, 27 N. E. 997. Mich. People v. Hinshaw, 97 N. W. ,758, 135 Mich. 378; People v. Willett, 105 Mich. 110, 62 N. W. 1115; Dris- coll V. People, 47 Mich. 413, 11 N. W. 221; People v. McKinney, 10 Mich. 54. Minn. State v. O'Hagen, 144 N. W. 410, 124 Minn. 58; State v. Zem- pel, 115 N. W. 275, 103 Minn. 428. Miss. Pringle v. State, 67 So. 455, lOS Miss. 802. Mo. State V. Herring, 188 S. W. 169, 268 Mo. 514 ; State v. Ramsauer, 124 S. W. 67, 140 Mo. App. 401 ; State V. Goldsby, 114 S. W. 500, 215 Mo. 48; State V. Brooks, 92 Mo. 542, 5 S. W. 257, 330; State v. Bmory, 12 Mo. App. 593. Mont. State V. Inich, 173 P. 230, 55 Mont. 1; State v. Powell, 169 P. 46, 54 Mont. 217. Neb. Goldsberry v. State, 137 N. W. 1116, 92 Neb. 211 ; Martin v. State, 93 N. W. 161, 67 Neb. 36 ; Musfelt v. State, 90 N. W. 237, 64 Neb. 445; Dinsmore v. State, 85 N. W. 445, 61 Neb. 418 ; Philamalee v. State, 78 N. W. 625, 58 Neb. 320; Chezem v. State, 7|6 N. W. 1066, 56 Neb. 496; Johnson v. State, 73 N. W. 463, 53 Neb. 103; Ferguson v. State, 72 N. W. 590, 52 Neb. 432, 66 Am. St. Rep. 512 ; Carleton v. State, 43 Neb. 373, 61 N. W. 699. Nev. State v. Switzer, 145 P. 925, 38 Nev. 108. N. J. State V. Taylor, 104 A. 709, 92 N. J. Law, 135 ; State v. littman, 92 A. 580, 86 N. J. Law, 453, judg- ment affirmed 96 A. 66, 88 N. J. I.,aw, 392 ; State v. D'Adame, 86 A. 414, 84 N. J. Law, 386, Ann. Cas. 1914B, 1109, affirming judgment, 82 A. 520, 82 N. J. Law, 315; State v. Bertchey, 73 A. 841 EEQUESTS OR PRAYERS FOE INSTRUCTIONS §468 matters of law necessary for their information in giving their ver; 524, 77 N. J. Law, 640, 18 Ann. Oas. 931; Mead v. State, 53 N. J. Law, 601, 23 A. 264. N. M. State V. Dickens, 165 P. 850, 23 N. M. 26; Territory v. Gon- zales, 68 P. 925, 11 N. M. 301 ; Trujil- lo V. Territory, 7 N. M. 43, 32 P. 154; Territory v. O'Donnell, 4 N. M. 196, 12 P. 743. N. T. People v. Sanducci, 88 N. E. 385, 195 N. Y. 361 ; People v. John- son, 77 N. E. 1164, 185 N. Y. 219; People V. Moett, 58 How. Prae. 467. W. C. State V. Wade, 84 S. B. 768, 169 N. C. 306 ; State v. Powell, 83 S. E. 310, 168 N. 0. 134 ; State v. Lance, 81 S. E. 1092, 166 N. C. 411; State V. Robertson, 81 S. B. 689, 166 N. C. 356 ; State v. Yates, 71 S. E. 317. 155 N. C. 450 ; State v. Yellowday, 67 S. B. 480, 152 N. O. 793; State v. Mar- tin, 53 S. E. 874, 141 N. C. 832 ; State V. Worley, 53 S. E. 128, 141 N. C. 764 ; State V. Bansauls, 36 S. E. 31, 126 N: C. 1095 ; State v. Ridge, 34 S. E. 439, 125 N. C. 655; State v. Groves, 25 S. B. 819, 119 N. C. 822 ; State v. Var- ner, 115 N. C. 744, 20 S. E. 518 ; State V. Jackson, 112 N. C. 851, 17 S. E. 149; State v. Nicholson, 85 N. C. 548 ; State V. Rash, 34 N. C. 382, 55 Am. Dec. 420; State v. O'Neal, 29 N. O. 251 ; State v. Nicholson, 85 N. C. 548. N. D. State V. Rosencrans, 82 N. W. 422, 9 N. D. 163. Ohio. Mason v. State, 27 Ohio Cir. Ct. R. 526; Wray v. State, 27 Ohio CIr. Ct. R. 1; Mitchell v. State, 21 Ohio Cir. Ct. B. 24, 11 O. O. D. 446. Okl. Fitzsimmons v. State, 166 P. 453, 14 Okl. Cr. 80 ; Robinson v. Ter- ritory, 85 P. 451, 16 Okl. 241, revers- ed 148 F. 830, 78 C. C. A. 520; Dou- thitt V. Territory, 54 P. 312, 7 Okl. 55. Or. State V. Chong Ben, 173 P. 1173, 89 Or. 313, denying rehearing 173 P. 258, 89 Or. 313 ; State v. Mc- Avoy, 109 P. 763, 57 Or. 1 ; State v. Meldrum, 70 P. 526, 41 Or. 380. Pa. Commonwealth v. Bednorcikl, 107 A. 666, 264 Pa. 124; Common- wealth V. Beingo, 66 A. 153, 217 Pa. 60; Zell V. Commonwealth, 94 Pa. 258; Commonwealth v. Keegan, 70 Pa. Super. Ct. 436; Commonwealth v. Holgate, 63 Pa. Super. Ct. 246; Commonwealth v. Elaby, 52 Pa. Super. Ct. 619 ; Commonwealth v. Lenhartt 40 Pa. Super. Ct. 572. S. C. State V. Brown, 101 S. 15. 847, 113 S. C. 513; State v. Evans, 99 S. E. 751, 112 S. C. 43; State v. Sanders, 88 S. E. 10, 103 S. C. 216; State v. Newman, 81 S. E. 667, 97 S. C. 441; State v. Hendrix, 68 S. E. 129, 86 S. C. 64 ; State v. Cokley, 65 S. E. 174, 83 S. C. 197; State v. Thompson, 56 S. E. 789, 76 S. C. 116 ; State V. Chiles, 36 S. E. 496, 58 S. C. 47 ; State v. Kendall, 32 S. E. 300, 54 S. C. 192 ; State v. Cannon, 30 S. E. 589, 52 S. C. 452; State v. Cannon, 27 S. E. 526, 49 S. C. 550; State v. Moore, 27 S. E. 454, 49 S. C. 488; State V. SulUvan, 43 S. C. 205, 21 S. E. 4 ; State v. Robinson, 40 S. C. 553, 18 S. E. 891 ; State v. Anderson, 24 S. C. 109; State v. Coleman, 17 S. 0. 473. Tenn. State v. Davis, 58 S. ,W. 122, 104 Tenn. 501. Tex, Gray v. State, 178 S. W. 337, 77 Tex. Cr. R. 221; Robey v. State, 163 S. W. 713, 73 Tex. Cr. R. 9; Stubbs V. State, 160 S. W. 87, 71 Tex. Cr. R. 390; Coggins v. State, 151 S. W. 311, 68 Tex. Cr. R. 266 ; Tyler v. State, 150 S. W. 782, 67 Tex. Cr. R. 601; Williams v. State, 144 S. W. 622, 65 Tex. Cr. R. 193; Lutrall v. State, 142 S. W. 588, 64 Tex. Cr. R. 411; Treadwell v. State, 141 S. W. 219, 64 Tex. Cr. B. 83; Diggs v. State, 141 S. W. 100, 64 Tex. Cr. R. 122 ; Gentry v. State, 136 S. W. 50, 61 Tex. Cr. R. 619; Ellis v. State, .130 S. W. 170, 59 Tex. Cr. R. 626 ; Hamil- ton v. State, 127 S. W. 212, 58 Tex. Cr. R. 173; Feinstein v. State (Tex. Cr. App.) 73 S. W. 1052; Ramsey v. State (Cr. App.) 65 S. W. 187 ; Lucia V. State, 35 Tex. Cr. R. 320, 33 S. W. 35^ ; Dunbar v. State, 34 Tex. Cr. R. 596, 31 S. W. 401; Strang v. State, 32 Tex. Cr. R. 219, 22 S. W. 680; Quin- tana v. State, 29 Tex. App. 401, 16 S. W. 258, .25 Am. St. Rep. 730 ; Gar- ner V. State, 28 Tex. App. 561, 13 S. W. 1004; White v. State, 23 Tex. App. 154, 3 S. W. 710 ; Mooring v. State, 42 Tex. 85; Gillmore v. State!, 36 Tex. 334 ; Greenwood v. State, 35 Tex. 587 ; O'Connell v. State, 18 Tex. 469 INSTRUCTIONS TO JURIES 8i2 diet does not render the above rule inapplicable,'* and a rule' that charges given are to be deemed as excepted to does not relieve a litigant from the duty of requesting additional instructions, if in his opinion those given are not sufficient.^® § 469. Specific applications of rule in civil cases In civil cases the above rule has been applied to the omission of instructions relating to the constructiojn of a written contract,*® to conditions precedent to the rescission of a contract,*' to what constitutes separate and community property,** to fraud and evi- dence thereof,*® to the question of what constitutes due care or negligence,** to the violation of an ordinance as constituting negli- 343; Fonville v. State, 17 Tex. App. 368; Waite v. State, 13 Tex. App. 169; Howard v. State, 8 Tex. App. 612. Vt. State V. Harrison, 66 Vt. 523, 29 A. 807, 44 Am. St. Rep. 864. Wash. State v. Walker, 177 P. 315, 104 "Wash. 472; State v. Boss, 147 P. 1149, 85 Wash. 218 ; State v. Aton, 121 P. 980, 67 Wash. 485. W. Va. State v. Alie, 96 S. E. 1011, 82 W. Va. 601 ; State v. Dono- hoo, 22 W. Va. 761. Wis. Birmingham v. State, 129 N. W. 670, 145 Wis. 90; 'Winn v. State, 82 Wis. 571, 52 N. W. 775. Wyo. Brantley v. State, 61 P. 139, 9 Wyo. 102. Effect of assent to instructions. Where, before the court's charge was given, it was reduced to writing and submitted to counsel for the state and for accused, and they were asked if they had any exception to the charge and both replied- in the negative, counsel for accused cannot subse- quently complain of the court's fail- ure to charge certain other matters of its own motion. State v. Fujita, 129 N. W. 360. 20 N. D. 565, Ann. Oas. 1913A, 159. Request withdrawn because of unofficial statements by trial judge. Counsel, who fails to ask the court to charge the jury on the sub- ject of self-defense because, in an un- official conversation with the judge, the latter had stated to him that the plea of self-defense admitted the kill- ing, cannot, after the trial, seek a re-' versal on the ground that he had been forced by this statement to waive his right of going before the jury on that issue. State v. Salter, 48 La. Ann. 197, 19 So. 265. 3* Powers V. State, 87 Ind. 144 ; State V. Walke, 76 P. 408, 69 Kan. 183. S5 Missouri Pac. R. Co. v. Martin (Tex.) 2 WlUson, Civ. Cas. Gt. App. § 655. 3 6 Western Brass Mfg. Co. v. Haynes Automobile Co., 112 N. E. 108, 61 Ind. App. 524. 3 7 C. Aultman & Co. v. York, 71 Tex. 261, 9 S. W. 127. 88 Watkins v. Watkins . (Tex. Civ. App.) 119 S. W. 145. 3 8 Ky. Oberdorfer v. Newberger, 67 S. W. 267, 23 Ky. Law Rep. 2323; New York Life Ins. Co. v. Brown's Adm'r, 66 S. W. 613, 139 Ky. 711, 23 Ky. Law Rep. 2070; Rountree v. Glatt, 13 Ky. Law Rep. (abstract) 462. Mich. McDonald v. Smith, 102 N. W. 668, 139 Mich. 211. N. Y. Graser v. Stellwagen, 25 N. Y. 315. ' N. O. Howard v. Turner, 34 S. E. 229, 125 N. C. 107. Tex. Half v. Curtis, 68 Tex. 640, 5 S. W. 451. 40 True v. Chicago & N. W. Ry. Co., 173 N. W. 642, 42 S. D. 35. Illustrations of instruction held sufficient Trithin rule. In action against a street railroad for injuries to a man 94 years old and slightly deaf in one ear, through being struck by a car, an instruction deflnitig or- dinary care as applied to plaintiff a? that degree of care which men of his age and capacity usually exercise un- der similar circumstances was suffi- S43 REQUESTS OK PRAYERS FOR INSTRUCTIONS § 469 gence,**^ to the duty of a person excavating in the highway,** to the duty to prevent fire escaping from an engine,** to matters of defense,** to the question of contributory negligence,*" to assump- tion of risk and the law of fellow servants,*® to liability of a mas- ter to third persons because of acts of servant,*' to advice of coun- sel in an action for malicious prosecution,** to the legal effect of cient, in tlie absence of a request to charge that it is the dhity of one whose senses are defective to exercise great care and caution in the use of his remaining senses to avoid danger. Louisville Ry. Co. v. Knocke's Adm'r (Ky.) 117 g. W. 271. In an action for injuries sustained vyhile plaintiff, who had a clubfoot, was climbing be- tween cars which had blocked a pub- lic crossing, an instruction that if plaintiff went between the cars, and remained there in a dangerous posi- tion while the cars were moved, and failed to take such precautions for his safety as an ordinarily cautious person of his age would have done, he could' not recover, was at least not affirmative error, and defendant could not complain because it did not au- thorize the .iury to consider plain- tiff's deformed foot in determining his due care, unless it presented a direct charge supplying the omission. Texas & N. O. R. Co. v. Bean, 119 S. W. 328, 55 Tex. Civ. App. 341. 41 Driver v. Atchison, T. & S. F., Ry. Co., 52 P. 79, 59 Kan. 773; Hovey V. Michigan Tel. Co., 83 N. W. 600, 124 Mich. 607. 12 Brasington v. South Bound K. Co., 40 S. B. 665, 62 S. C. 325, 89 Am. St. Rep. 905. 43 Bowen v. St. Paul, M. & M. R. Co., 36 Minn. 522, 32 N. W. 751. 44 Mo. Shanholtzer v. Brubaker, 140 S. W. 626, 159 Mo. App. 366. N. Y. Heiferman v. Greenhut Cloak Co., 145 N. Y. S. 142, 83 Misc. Rep. 435, reversing order (City Ct) 143 N. y. S. 411, judgment reversed (Sup.) 148 N. Y. S. 1119. Tex. Missouri, K. & T. Ry. Co. of Texas v. Reno (Civ. App.) 146 S. W. 207; Chicago, R. I. & P. Ry. Co. v. Hiltibrand, 99 S. W. 707, 44 Tex. Civ. App. 614 ; Missouri, K. & T. Ry. Co. of Texas v. Crowd'er (Civ. App.y 55 S. W. 380; Missouri, K. & T. Ry. Co. of Texas v. Witherspoon, 45 S. W. 424. 18 Tex. Civ. App. 615; Sanger V. Warren (Civ. App.) 40 S. W. 840; Rees V. Clark (Civ. App.) 39 S. W. 160; Whiting v. Dugan (Civ. App.) 39 S. W. 148 ; Missouri, K. & T. S.y. Co. V. Connelly, 39 S. W. 145, 14 Tex. Civ. App. 529. 45 Ala. East Tennessee, V. & G. R. Co. V. Clark, 74 Ala. 443. Ga. Southern Ry. Co. v. Coursey, 41 S. E. 1013, 115 Ga. 602 ; Southern Ry. Co. V. Hooper, 36 S. B. 232, 110 Ga. 779; Orr v. Garabold, 85 Ga. 373, 11 S. E. 778. 111. Chicago & B. I. R. Co. v. O'Connor, 119 111. 586, 9 N. E. 263. Ky, Felton v. Curd, 60 S. W. 297, 22 Ky. Law Rep. 1222. Md. Baltimore & O. R. Co. v. Bahrs, 28 Md. 647. Minn. Greene v. Minneapolis & St. L. Ry. Co., 31 Minn. 248, 17 N. W. 378, 47 Am. Rep. 785. Mo. Brown v. Hannibal & St. J. R. Co., 31 Mo. App. 661, affirmed 99 Mo. 310, 12 S. W. 655. Nev. Zelavin v. Tonopah Belmont Development Co., 149 P. 188, 39 Nev. 1. Tex. Andrews v. Viraldo (Civ. App.) 176 S. W. 737 ; Western Union Telegraph Co. v. Buchanan, 129 S. W. 850, 61 Tex. Civ. App. 212 ; Hous- ton & T. C. R. Co. V. Lentz, 120 S. W. 943, 56 Tex. Civ. App. 498; Barklow V. Avery, 89 S. W. 417, 40 Tex. Civ. App. 355; Gulf, 0. & S. F. Ry. Co. V. Pendery (Civ. App.) 27 S. W. 213. 4 6 Smith V. Pordyce, 88 S. W. 679, 190 Mo. 1 ; Turrentine v. Wellington, 48 S. E. 739, 136 N. C. 308 ; Interna- tional & 6. N. R. Co. V. Beasley, 9 Tex. Civ. App. 569, 29 S. W. 1121. 47 Gerstein v. C. F. Adams Co., 173 N. W. 209, 169 Wis. 504. 4 8 Hurt V. Barnes, 79 S. E. 775, 140 Ga. 743. 469 INSTRUCTIONS TO JIIEIBS 84^ an offer to retract a libel,*® to matters constituting notice and the effect of notice,*"* to questions of adverse possession and matters bearing on running of the statute of limitations,^^ to the object of the action,^* to what are the material allegations of the complaint,®' to the relevancy and effect of a deed,^ to the effect of evidence relating to malice,®^ to the legal effect of evidence as showing due'care,**® to questions relating to the measure and elements of damages,®'' to the necessity of assessing damages separately against *9 (yToole V. Post Printing & Pub- lishing Ck)., 36 A. 288, 179 Pa. 271. BO O'Flynn v. City of Butte, 93 P. 643, 36 Mont. 493; Rapley v. Klugh, 40 S. C. 134, 18 S. B. 680 ; Brotherton V. Weathersby, 73 Tex. 471, 11 S. W. 505. Bi Pa. Wood V. Flgard, 28 Pa. 403 ; Lea, v. Hopkins, 7 Pa. 492. Tex. City of Comanclie v. Zettle- moyer (Oiv. App.) 40 S. W. 641 ; Rack- ley V. Fowlkes (Civ. App.) 36 S. W. 75 ; Robinson v. Mclver (Civ. App.) 23 S. W. 915 ; Hocker v. Day> 80 Tex. 529, 16 S. W. 322. Vt. Parteli v. Spooner, 57 Vt. 583. 12 Wimer v. Allbaugb, 78 Iowa, 79, 42 N. W. 587, 16 Am. St. Hep. 422; Klosterman v. Olcott, 25 Neb. 382, 41 N. W. 250. 5 3 O'Donnell v. Chicago, R. I. & P. R. Co., 91 N. W. 566, 65 Neb. 612. 5 4 Cox V. Ward, 107 N. C. 307, 32 S. E. 379. 6 5 Hall V. Jennings, 87 Mo. App. 627. 56 Leslie V. Granite R. Co., 52 N. B. 542, 172 MassS 468. 57 IT. S. (C. C. A. 111.) Grand Trunk Western Ry. Co. v. Gilpin, 208 F. 126, 125 C. C. A. 278; (C. 0. A. Tex.) Texas & P. By. Oo. v. Cody, 67 Fed. 71, 14 C. C. A. 310. Ariz. Arizona Power Co. v. Ba- cine-Sattley Co.. 114 P. 558, 13 Ariz. 283. CaJ. Peluso V. City Taxi Co., 182 P. 808, 41 Cal. App. 297 ; City of Oak- land V. Wheeler (App.) 168 P. 23. Colo. Consolidated Lower Bould- er Reservoir '& Ditch Co. v. Alaux, 133 P. 1046/ 24 Colo. App. 377. Conn. Palmer v. Smith, 56 A. 516, 76 Conn. 210. Ga. Smith v. S. H. Fuller Loan Co., 99 S. E. 309, 23 Ga. App. 726; Central of Georgia Ry. Co. v; New- man, 74 S. E. 1077, 138 Ga. 145; Savannah Electric Co. v. Bennett, 61 S. E. 529, 130 Ga. 597; Peterson v. Wadley & Mt. V. B. (3t)., 43 S. E. 713, 117 Ga. 390. 111. Central Ry. Co. v. Ankiewlcz, 73 N. B. 382, 213 111. 631, affirming 115 111. App. 380; Illinois Cent. R. Co. V. Atwell, 64 N. E. 1095, 198 111. 200, affirming judgment 100 111. App. 513. Ind. New 'Sork Cent. E. Oo. v. Reldenbach (App.) 125 N. B. 55; P. B. Arnold Co. v. Buchanan, 111 N. E. 204, 60 Ind. App. 626. Iowa. Grace v. Minneapolis & St. L. R. Co., 133 N. W. 672, 153 Iowa, 418; Gorton v. Moeller Bros., 130 N. W. 910, 151 Iowa, 729. Kan. Missouri, K. & T. By. Co. v. Stelnberger, 55 P. 1101, 60 Kan. 856, affirming judgment 51 P. 623, 6 Kan. App. 685. Ky. Stearns Coal & Lumber Co. V. Calhoun, 179 S. W. 590, 166 Ky. 607. Mass. Buzzell v. Bmerton, 161 Mass. 176, 36 N. E. 796. Mich. Merrinane v. Miller, 111 N. W. 1050, 148 Mich. 412. Minn. Haynes v. City of Duluth, 47 Minn. 458, 50 N. W. 693. Mo. Greenwell v. Chicago, M. & St. P. By. Co. (Sup.) 224 S. W. 404; Cook V. City of St. .Toseph, 220 S. W. 693. 203 Mo. App. 430; Kerr v. Bush (App.) 215 S. W. 393 ; Delano v. Rob- erts (App.) 182 S. W. 771 ; Nelson v. United Eys. Co. of St. Louis, 158 S. W. 446, 176 Mo. App. 423; Potter V. St Louis & S. F. E. C!o., 117 S. W. 693, 136 Mo. App. 125 ; Dreyfug v. 845 REQUESTS OR PRAYERS FOR INSTRUCTIONS §469 several defendants,^* to the question of proximate cause,^» to the omission of the court to impress upon the jury the necessity of basing their verdict upon the evidence alone,™ to failure .of the court to especially direct the attention of the jury to a matter of common knowledge,*! to the failure to submit certain questions to the jury,*^ to omissions in a charge on the burden of proof,®* and as to the form of the verdict.** St. Louis & S. Ry. Co., 102 S. W., 53, 124 Mo. App. 585. N. J. Gnuen v. George A. Ohl & Co., 80 A. 547, 81 N. J. Law, 626. jr. C. Wllley V. Norfolk Southern R. Co., 96 N. C. 408, 1 S. E. 446. Pa. Hart V. Drumm, 55 Pa. Super. Ct. 457. Tex. Andrews v. York (Civ. App.) 192 S. W. 338; Kansas City, M. & O. Ry. Co. of Texas v. Worsham , (Civ. App.) 149 S. W. 755; Missouri,, K. & T. Ry. Co. of Texas v. Hurdle (Civ. App.) 142 S. W. 992; Houston & T. O. R. Co. V. Davenport, 117 S. W. 790, 102 Tex. 369, affirming judgment (Civ. App.) 110 S. W. 150 ; Houston, E. & W. T. Ry. Co. v. Roach, 114 S. W. 418, 52 Tex. Civ. App. 95 ; Houston & T. C. R. Co. V. Craig, 92 S. W. 1033, 42 Tex. Civ. App. 486; Hargrave v. Western Union Tel. Co. (Civ. App.) 60 S. W. 687. Wis. Sharon v. Winnebago Furni- ture Mfg. Co., 124 N. W. 299, 141 Wis. 185; Thomas v. Williams, 121 N. W. 148, 139 Wis. 467. Instructions held sufficient ■nritMu rule. In an action for in- jury to standing timber by negligent- ly starting a fire, it was not error to charge that the Jury should be fair and just in fixing damages and award plaintiff such sum as would compen- sate him for the injpries sustained by defendant's negligence; neither party having requested more specific Instructions. Miller v. Neale, 119 N. W. 94, 137 Wis. 426, 129 Am. St. Rep. 1077. Use of -word "pain" as including mental suffering. Where plaintiff demanded compensation for physical and mental pain, and the court charg- ed that plaintiff demanded' compensa- tion for physical and mental. pain, an instruction directing the jury in as- sessing the damages to consider the personal injury suffered, the pain al- ready sufCored, or which he might suf- fer in the future, etc., was not objec- tionable as restricting the damages to physical 'pain only, in the absence of any requested instruction on the sub- ject, for the word "pain" was broad enough to include both .physical and mental suffering. Hall v. Chicago, B. & Q. Ry.. Co., 122 N. W. 894, 145 Iowa, 291. 6 8 Rio Grande, E. P. & S. P. R. Co. V. Kraft & Madero (Tex. Civ. App.) 212 S. W. 961. 5 S. C. Berry v. City of Green- ville, 65 S. E. 1030, 84 S. C. 122, 19 Ann. Oas. 978. Tex. Guerra v. San Antonio Sew- er Pipe Co. (Civ. App.) 163 S. W. 669 ; Ft. Worth & D. C. Ry. Co, v. Keeran (Civ. App.) 149 S. W. 355; Gulf, C. & S. F. Ry. Co. V. Joses (Civ. App.) 95 S. W. 688; International & G. N. R. Co. V. Smith (Sup.) 1 S. W. 565. ■Wis. Fisher v. Waupaca E'lectric Light & Ry. Co., 124 N. W. 1005, 141 ■ Wis. 515 ; Stumm v. Western Xlnion Telegraph Co., 122 TSl. W. 1032, 140 Wis. 528. ■ l eo Kelley v. John R. Daily Co., 181 P. 326, 56 Mont. 63. 61 Green way v. Taylor County, 122 N. W. 943, 144 Iowa, 332. 6 2 Mich. Lynch v. Johnson, 109 Mich. 640, 67 N. W. 908. Pa. Stuckslager v. Neel, 123 Pa. 53. 16 A. 94. Tex. Southern Traction Co. v. El- lis (Civ. App.) 198 S. W. 983; Peck V. Atchiison, T. & S. F. Ry. Co. (Civ. App.) 91 S. W. 323; Missouri, K. & T. Ry. Co. of Texas v. Penny, 87 S. 63 Suiter v. Chicago, R. I. & P. Ry. Co., 121 N. W. 113, 84 Neb. 256. 6* Economy Light & Power Co. v. Hlller, 113 111. App. 108, judgment af- firmed 71 N. E. 1096, 211 111. 568. §469 INSTRUCTIONS TO JURIES 84G The above rule applies where given instructions are applicable only to a particular state of facts which there is evidence to prove, although there is also evidence to prove a different state of facts.^ § 470. Application of rule in criminal cases In criminal cases the above rule has been applied to the omis- sion of the court to instruct, or to give as full instructions as were desired, on the subject of the elements of the offense charged,®* on the intent of the defendant,*" on the subject' of motive,** on the de- grees of the offense alleged,** on particular phases of manslaugh- ter,'* and on the necessity of finding that the crime was committed in the jurisdiction.'^ W. 718, 39 Tex. Civ. App. 358; San Antonio & A. P. Ry. Co. v. Hahl (Civ. App.) 83 S. W. 2T; Cuneo v.-De Cun- eo, 59 S. W. 284, 24 Tex. Civ. App. 436 ; glayden v. Stone, 47 S. W. 747, 19 Tex. Civ. App. 618 ; Mexia v. Lew- is, 12 Tex. Civ. App. 102, 34 S.'W. 158. 85 Missouri, K. & T. Ey. Co. v. Mill- er, 39 S. W. 583, 15 Tex. Civ. App. 428. 66 Ala. Smith v. State, 24 So. 55, 118 Ala. 117. , Cal. People v. Castile, 86 P. 746, 3 Cal. App. 487; People v. Balkwell, 76 P. 1017, 143 Cal. 259. Ga. Livingston v. State, 90 S. E. 287, 18 Ga. App. 679; Gaskins v. State, 76 S. E. 777, 12 Ga. App. 97. Kan. State v. Potter, 15 Kan. 302. La. State V. Scossoni, 21 So. 32,' 48 La. Ann. 1464. Mo. State V. Keithley, 127 S. W. 406, 142 Mo. App. 417. Mont. State v. Fuller, 85 P. 369, 34 Miont. 12, 8 L. B. A. (N. S.) 762, 9 Ann. Cas. 648. Neb. Priel v. Adams, 91 N. W. 536, 3 Neb. (Unof.) 305. N. Y. People v. Dunbar Contract- ing Co., 109 N. E. 554, 215 N. T. 416, affirming judgment 151 N. Y. S. 164, 165 App. Div. 59. Pa, Commonwealtli v. Scott, 38 Pa. Super. Ct. 303. S. C. State v. T^e, 60 S. B. 524, 79 S. O. 223 ; State v. Uyrd, 51 S. Hi. 542, 72 S. C. 104. Tex, Dozier v. State, 137 S. W. 679, 62 Tex. Cr. K. 258. Instrnctions held sufficient within rule. Where, in a prosecu- tion for fighting in a public place,, the court charged' that the law de- fines a public place as any place at which people are assembled for the purpose of business, amusement, rec- reation, or other lawful purposes ; that a private residence cannot be a public place, unless it is made public by be- ing open to the public; ,that a place may be public at one time and privata at another ; that if the Jury find that the house at which accused was charged with fighting was a public place, and that accused fought there with other persons, they should find him guilty, it was held that the in- struction sufficiently presented the proposition that if people were assem- bled at a house by special invitation, and the public generally not invited,, the place was not a public one, in the absence of a request for a more spe- cific charge. Austin v. State, 124 S.- 'W. 639, 57 Tex. Cr. E. 611. 07 People V. Shaw, 172 P. 401, 36 Cal. App. 441; Blackshear v. State, 92 S. B. 547, 20 Ga. App. 87 ; Smith V. State, 87 S. E. 829, 17 Ga. App. 554 ; Crum v. State, 47 N. E. 833, 14S Ind, 401; State v. Chambers, 161 N. W. 470, 179 Iowa, 436. «s State V. Melvin, 166 Mo. 565, 66 S. W. 534. 60 Commonwealth v. Pacito, 78 A. 828, 229 Pa. 328. ' ■"> Ga. Booker v. State, 85 S. il. 255, 16 Ga. App. 280 ; Short v. State, 80 S. E. 8, 140 Ga. 780 ; Eogers v. 71 State V. Eggleston, 77 P. 738, 45 Or. 346. 847 REQUESTS OR PRAYERS FOR INSTRUCTIONS 470 So the above rule has been applied to omissions of the court with respect to defenses set up by the accused,''* or to the issue of self-defense or of defense of another,'* as the failure to charge,. in State, 57 S. B. 227, 128 Ga. 67, 10 L. R. A. (N. S.) 999, 119 Am. St. Rep. 364. Ind. Fisher v. State, 77 Ind. 42. Mo. State V. Linn, 122 S. W. 679, 223 Mo. 98. OM. Atchison v. State, 105 P. 387, 3 Okl. Cr. 295. S. C. State V. Chastain, 67 S. E. 6, 85 S. O. 64. Tex. Witty v. State, 171 S. W. 229, 75 Tex. Cr. R. 440 ; Girtman v. State, 164 S. "W. 1008, 73 Tex. Cr. R. 158; Crist V. State, 21 Tex. App. 361, 17 S. W. 260; Surrell v. State, 29 Tex. App. 321, 15 S. W. 816. Wis, Sullivan v. State, 75 N. W. 956, 100 Wis. 283. 7 2 Cal. People V. Turner, 154 P. 34, 28 Cal. App. 766. Fla. Douglass v. State, 43 So. 424, 53.Fla. 27. Ga. Webb v. State, 99 S. E. 630, 149 Ga. 211; Wilensky v. State, 83 S. B. 276, 15 Ga. App. 360; Josey v. State, 74 S. E. 282, 137 Ga. 769 ; Ram- fos V. State, 47 S. E. 562, 120 Ga. 175. Iowa. State v. Judd, 109 N. W. 892, 132 Iowa, 296, 11 Ann. Cas. 91; State V. Renniek, 103 N. W. 159, 127 Iowa, 294, 4 Ann. Cas. 568. Mo. State v. Groves, 92 S. W. 681, 194 Mo. 452. Pa. Commonwealth v. Eussogulo 106 A. 180, 263 Pa. 93; Common- wealth V. Webb, 97 A. 189, 252 Pa. 187. Tex. Shelton v. State, 100 S. W. 955, 50 Tex. Cr. R. 627. Wis. Guenther v. State, 118 N. W. 640, 137 Wis. 183. Defense that homicide the re- sult of accident. Where, on trial for murder, the defense is that the homicide was the result of accident or misfortune, and the court has cor- rectly charged the law in relation thereto, it is not error to omit to de- fine what would constitute accident or misfortune, in the absence of re- quest therefor. Washington v. State, 73 S. B. 512, 137 Ga. 218. Defense that ivife acted under the coercion of the hnsband. Where, on the trial of a wife for maintaining a liquor nuisance, the evidence showed that sales by her were made without the knowledge of the husband, the failure, in the absence of a request, to charge that she presumptively acted under the coercion of the husband was not er- roneous. State V. Kruse, 144 N. W. 586, 163 Iowa, 341. 78 U. S. (C. C. A. N. M.) Territory V. Trapp, 120 P. 702, 16 N. M. 700, judgment reversed Trapp v. Territory of New Mexico, 225 F. 968, 141 C. C. A. 28. Ark. Lee v. State, 172 S. W. 1025, 116 Ark. 588. Cal. People v. Fowler, 174 P. 892, 178 Cal. 657 ; People v. Dobbins, 72 P. 339, 138 Cal. 694. Ga. Harris v. State, 90 S. E. 491, 18 Ga. App. 752; Thornton v. State, 90 S. B. 489, 18 Ga. App. 744; Col- lins, v. State, 72 S. E. 526, 10 Ga. App. 34; Morman v. State, 65 S. E. 146, 133 Ga. 76; Williams v. State, 48 S. E. 368, 120 Ga. 870. 111. Morello v. People, 80 N. E. 903, 226 111. 388. Ind. Gross v. State, 117 N. E. 562, 186 Ind. 581, 1 A. L. R. 1151. iowa. State v. Young, 74 N. W. 693, 104 Iowa, 730. Kan. State V. Pag«, 102 P. 780, 80 Kan. 389. Mo. State v. King, 102 S. W. 515, 203 Mo. 560. N. Y. People v. Rosino,- 152 N. Y. S. 623, 168 App. Div. 920. . Ohio. Szalkai v. State,' 117 N. B. 12, 96 Ohio St. 36. Okl. Davis v. State, 177 P. 621, 15 Okl. Cr. 386. S. C. State V. Anderson, 26 S. C. 599, 2 S. E. 699. Tex. Welch v. State, 147 S. W. 572, 66 Tex. Cr. R. 525; Hoyle v. State, 137 S. W. 355, 62 Tex. Cr. R. 297; Harrelson v. State, 132 S. W. 783, §470 INSTRUCTIONS TO JURIES 848 a murder case, on the character of the deceased for violence,'* or on threats by the deceased,'® or to omissions in instructions on the defense of alibi.''® , , , , _ While it is the duty of the court without request to present the particular defense upon which the accused relies, it is not neces- sary, in the absence of a request, to specifically refer to the par- ticular testimony upon which that defense is based,'"' and where the court charges in a clear and comprehensive manner on in- sanity generally as a defense to crime, its failure to instruct on the specific form of mania, relied upon as a defense,''* or to go into details as to the various phases of insanity,'* cannot be urged as error without a request for additional instructions. So the above rule has been applied to the failure to instruct, or to omissions in instructions, on the necessity of an agreement be- 60 Tex. Cr. R. 534 ; Allen v. State, 70 S. W. 85, 44 Tex. Or. R. 205. 'Wash. State V. Hawkins, 154 P. 827, 89 Wash. 449. Bigbt of defendant on. his own premises. Where in a prosecution for homicide a charge on self-de- fense, that accused, pleading self-de- fense, must be without fault In bring- ing on the difficulty, aid he must have honestly believed that he was in dan- ger of losing his life or of receiving serious bodily harm, and a person of ordinary firmness would have been warranted in coming to that conclu- sion, and there must have been no reasonable way for accused to escape, having been given, if accused desir- ed to avail himself of any special rights arising from the fact that he was on his own premises at the time of the homicide, he must present a request embodying a proposition to that eflfeet. State t. Orosby, 70 S. E. 440, 88 S. C. 98. Defense of relative. Where ac- cused claimed that he killed decease ed because of hostile acts, on deceas- . ed's part against defendant and his father, and that he had reason to believe that a dangerous attaOk was about to be made on his father as well as himself, an instructipii ttat previous threats or acts of hostility of deceased towards defendant, how- ever violent, Vfere not of themselves sufficient to justify defendant In slay- ing deceased, but that he must have acted under an honest belief that It was necessary at the time to take de- ceased's life in order to save his own or himself from great bodily injury, etc., was not erroneous as eliminat- ing defendant's rights with refer- ence to protecting his father; the burden being on accused, if ihe de- sired a broader instruction covering such subject, to request it. People v, Loomer, 110 P. 466, 13 Cal. App. 654. 7* Hill V. State, 89 S. E. 351, 18 Ga. App. 259, conforming to answer to certified questions Deal v. Same, 88 S. E. 573, 145 Ga. 33; TUlman v. State, 70 S. E. 876, 136 Ga. 59; Mc- Dbugal V. State, 268 S: 'W. 173, 84 Tex. Cr. R. 424. '6 Klmbrell v. State, 75 S. E. 252, 138 Ga. 413; State v. Nelson, 75 P. 505, 68 Kan. 566, 1 Ann. Gas. 468; State v. Fletcher (Mo.) 190 S. W. 317. Tolangston v.' State, ; 97 S. B. 444, 23 Ga. App. 82; Thomas, v. State, 88 S.E. 917, 18 Ga., App. 101,; Brown v. State, 160 S. W. 374, 72 Tex. Or. R. 33; Oxford V. State, 32 Tex. Cr. R. 272, 22 S. W. 971. 7 7 Groves v. State, 70 S. E. 93, 8 Gaj App. 690. 78 People. V. Keyes, 175 P. 6, 178 Cal. 794;(;CQmmonwealth v. Pacito, 78 A. 828, 229 Pa. 328. 7 8 Taylor v. State, 31 S. E. 764, 105 Ga. 746; State v., Charles, 50 So. .699, 124 La. 744, 18 Ann. Oas. 934. 8'19 BEQUESTS OR PRAYERS FOR INSTRUCTIONS §470 tween the indictment and the evidence,*" on matters affecting the credibility of witnesses,*^ on the confession of accused,*^ on dying declarations,** on expert testimony,** on circumstantial evidence,*" on the question of the good character of the defendant,** on the doctrine of reasonable doubt,*' on the question of punishment,** with respect to arguments of counsel,** with respect to definition of terms,?" and to the failure to direct the attention of the jury to particular evidence for the accused.*^ An instruction referring only to murder in the first degree may be given, when other instructions properly advise the jury as to the lesser degrees of the crime charged in the indictment, and also as to the defense interposed by the plea of not guilty.** If coun- sel for the defendant desires an additional charge on circumstantial evidence, to meet a phase of the argument of the prosecuting at- torney, he should request it.** In the absence of a request for fuller instructions, a charge, in a prosecution for murder, that if deceased came to his death by accident, unattended with criminal design or culpable neglect of the 80 Timmons v. State, 82 S. E. 378, 14 Ga. App. 802. 81 Koszczyniala v. State, 104 N. W. 113, 125 Wis. 4i4. 82 Mercer v. State, 17 Ga. 140. 83 Cash V. State, 89 S. E. 603, 18 Ga. App. 486; State v. Mueller, 141 N. W. 1113, 122 Minn. 91. 84 State V. Hayden, 107 N. W. 929, 131 Iowa, 1; State v. Watson, 81 Iowa, 380, 46 N. W. 868. 8 5 state V. Nolan, 169 P. 295, 31 Idaho, 71 ; State v. Hayward, 133 N. W. 667, 153 Iowa, 265 ; State v. Sloah, 128 N. W. 842, 149 Iowa, 469 ; State V. Glass, 151 N. W. 229, 29 N. D. 620. 88 Johnson v. State, 94 S. B. 630, 21 Ga. App. 497; Mosley v. State, 75 S. E. 144, 11 Ga. App. 303. 87 Cal. People V. Brittan, 50 P. 664, 118 Cal. 409 ; People v. DonguU, 92 Cal. 607, 28 Pac. 782. Ga. Bragg v. State, 84 S. B, 82, 15 Ga. App. 623; Pressley v. State, 63 S. E. 784, 132 'Ga. 64; Riley v. State, 60 S. E. 274, 3 Ga. App. 534. ■ Ind, Conrad v. State, 132 Ind. 254, 31 N. E. 805; Sullivan v. State, 52 Ind. 309. '„ c Miss. Herman v. State, 22 So. 873, 75 Miss. 340. Okl. Inklebarger v. State, 127 P. 707, 8 Okl. Crj 316. '■ INST.TO JtTRIES— 54 Pa. Commonwealth v. Varano, 102 A. 131, 258 Pa. 442. Tex. Simpson v. State, 196 S. W. 835, 81 Tex. Cr. R. 389 ; Hamilton v. State, 141 S. W. 966, 64 Tex. Cr. R. 175; McDaniel v. State, 139 S. W. 1154, 63 Tex. Cr. R. 359. 88 West V. State, 164 P. 327, 13 Okl. Or. 312, L. R. A. 1917B, 1129. 80 State V. Davenport, 72 S. E. 7, 156 N. C. 596; State v. Knudson, 132 N. W. 149, 21 N. D. 562. ooFIa. Johnson v. State, 46 So. 174, 55 Fla. 41; Lewis v. State, 45 So. 998, 55 Fla. 54. Mo. State V. Keithley, 127 S. W. • 406, 142 Mo. App. 417. Tex. Brown v. State, 162 S. W. 339, 71 Tex. Cr. R. 353 ; Pope v. State, 158 S. W. 527, 71 Tex. Cr. R. 261; Ellington v. State, 140 S. W. 1100, 63 Tex. Or. R. 424. Vtai. State v. Tee' Foo Lun, 147 P. 488, 45 Utah, 531. 01 Mixon V. State, 82 S. E. 935, 15 Ga. App. 252 ; Harden v. State, 78 S. E^ 681, l3 Ga. App. 34. 02 Savary V. State, 87 N. W. 34, 62 Neb. 166. 03 Oanales v. State, 215 S. W. 964, 86 Tex. Cr. R. 142. §470 INSTRUCTIONS TO JURIES 850 defendant, he would be entitled to an acquittal, is sufficient,** and on trial for shooting with intent to kill it will be proper to charge in general ■ terms that, if all the evidence and circumstances of the case warrant the finding, the jury may find the prisoner guilty, of the offense charged in the indictment, or if all the facts and circumstances of the case warrant such finding, they may find the defendant guilty of a part of the offense charged, whether such part be a felony or a misdemeanor.®^ In one jurisdiction, in the absence of a timely request therefor, the court is not required to charge on a theory of the case pre- sented solely by the unsworn statement of the defendant,** pro- vided the court calls the attention of the jury to the statement and charges the law in regard thereto as contained in the statute,*' unless the only defense of the defendant is based on a theory raised solely by his statement.** § 471. Qualifications of rule In some jurisdictions it is the duty of the court, as has elsewhere been shown, even without request, to give appropriate instruc- tions applicable to the material issues in the case,** and the fail- 8* Green v. State, 90 S. B. 284, 18 Ga. App. 677.' 05 State V. Donohoo, 22 W. Va. 761. 96 Goldberg v. State (App.) 103 S. E. 90; Brinson v. State, 97 S. B. 102, 22 Ga. App. 649 ; Bumey v. State, 97 S. B. 85, 22 Ga. App. 622; Eeed v. State, 95 S. E. 692, 148 Ga. 18 ; Weld- on V. State, 94 S. E. 326, 21 Ga. App. 330; l/ott V. Stat?, 90 S. B. 727, 18 Ga. App. 747 ; Swilling v. State, 90 S. E. 78, 18 Ga. App. 618; Murray v. State, 87 S. B. 828, 17 Ga. App. 562; Crews V. State, 87 S. E. 604, 17 Ga. App. 465; Curry v. State, 86 S. E. 742, 17 Ga. App. 312 ; Morgan v. State, . 86 S. B. 281, 17 Ga. App. 124 ; Darby V. State, 84 S. B. 724, 16 Ga. App. 171; Bryant v. State, 83 S. E. 795, 15 Ga. App. 535 ; Shelton v. State, 83 Si B. 152, 15 Ga. App. 341 ; McLendon V. State, 82 S. B. 317, 14 Ga. App. 737; Jackson v. State, 81 S. B. 905, 14 Ga. App. 608; Pitts v. State, 80 S. B. 510, 14 Ga. App. 283; Taylor V. State, 79 S. E. 924, 18 Ga. App. 715 ; Jackson v. State, 78 S. B. 867, 13 Ga. App. 147; Thigpen v. State, 76 S. E. 596, 11 Ga. App. 846 ; Tyler v. State, 76 S. E. 102, 11 Ga. App. 762; Strickland v. State, 75 S. B. 446, 11 Ga. App. 427; Phillips v. State, 75 S. E. 14, 11 Ga. App. 262 ; Jordan v. State, 71 S. B. 875, 9 Ga. App. 578; Brown y. State, 69 S. E. 45, 8 Ga. App. 382 ; Cook v. State, 67 S. E. 812, 134 Ga. 347; Gray v. State, 65 S. E. 191, 6 Ga. App. 428; West v. State, 49 S. E. 266, 121 Ga. 364 ; Col- lins V. State, 48 S. E. 903, 121 Ga. 173 ; Middlebrooks v. State, 45 S. E. 607, 118 Ga. 772; Hardin v. State, 33 S. B. 700, 107 Ga. 718; CarroU V. State, 25 S. B. 680, 99 Ga. 36. Effect of charge by canrt of its own motion on certain matters presented by statement. Where, in a criminal case, prisoner's statement raises two distinct theories of de- fense, each based solely on such state- ment, it Is not error, in the absence of a proper request, for the trial Judge to fail to charge as to one of these theories, though he may have charged the law applicable to the other. Smith v. State, 43 S. E. 703, 117 Ga. 259. " Taylor v. State, 63 S. E. 296, 131 Ga. 765. 8 8 Thornton v. State, 90 S. E. 489, 18 Ga. App. 744. 9 8 Weldon v. State, 94 S. E. 326, 21 S51 REQUESTS OR PRAYERS FOR INSTRUCTIONS § 471 ure of the court to instruct on a material issue is not cured by the absence of a request for an instruction on such issue.^ When the trial judge undertakes to charge the law on any subject, he must charge all of the law pertaining thereto which is material and applicable to the case,^ and in such case the omission of an essential ingredient or element,* or the omission of a charge tO' embrace material conclusions deducible from the evidence,* will constitute a misdescription of which complaint can be made with- out requesting further instructions. Thus, where an instruction given with respect" to the right to recover on a certain state of facts omits an essential element, the failure to request an instruc- tion covering such element will not preclude a party complain- ing of the omission, since in such case the instruction is funda- mentally erroneous.^ In Tennessee it is held that, while it is true generally that a failure of the trial court to charge fully, when there is no essen- tial point omitted or wrongfully charged, is not error; in the ab- sence of a request for further instructions, still on the trial of a capital offense a charge, although correct as far as it goes, will be erroneous if it omits to instruct the jury fully and explicitly on the legal effect of all the circumstances developed on the trial which would tend to determine the question, or the character or degree, of the prisoner's guilt.^ In some jurisdictions it is error, or at least not good practice, for the court to omit entirely an instruction on the measure of damages, although no request has been made therefor.'' In one Ga. App. 330 ; Wall v. Wall, 82 S. E. * Mitchell v. Welbom, 63 S. B. 113, 791, 15 Ga. App. 156 ; Toole v. Davis, 149 N. C. 347 ; Stude v. Saunders, 2 78 S. E. 865, 13 Ga. App. 122. Posey, Unrep. Gas. (Tex.) 122 ; , _ Tj ,,„„ „ sn-ai-a -inn « TP Schwanlnger v: B. J. McNeeley & Co., ^4 9^ rf Inn 267 'ceMrai of ^^ P. 514, 44 Wash. 447. 452, 24 Ga. App. 267 Central of ^ Missouri, K. & T. Ry. Co. of Tex- Georgia Ey. Co. V Reid, 99 S. B 235, Groseclose, 110 S. W. 477, 50 23 Ga. App. 694 ; Reed v. State, 83 b. ' B. 674, 15 Ga. App. 435; Porter v. ^^f- ^iv. App. &^o. S^I 1; ^mT o ri aiZi R rd Anr. 77ft- Omissions through inadver- State, 05 S. K 814 6 Ga AppJ70^ ^^^^ ^^^^^^ ^ t^T'^mo isf Ga 559 Ser ^ "S^'^'^^' *» '>^ actionable, must be the !'Hnms fiVs F 715 5 Ga Ado 637 Proximate cause of the injury com- Adams, 63 S. B. 715, 5 Ga. App. MT. p^^j^g^ ^^^ jg ^^^^ ^ ^^^^^ inadver- Ky. Huddleston v. Commonwealth, ^ence as to require counsel to call the 188 S. W. 332, 171 Ky. 187. court's" attention to it. Bolton v. 2 Williams v. State (Ga. App.) 102 Western Union Telegraph Co., 65 S. S E 875 ; Rumph v. State, 100 S. B. E. 937, 84 S. C. 67. 768 24 Ga. App. 338; Batten v. State, e Nelson v. State, 2 Swan. (Tenn.) 80 ind. 394; State v. Harris. 134 S. 237. W 535 232 Mo. 317. '' Mustang Reservoir, Canal & Land 3 State V. Wolf, 29 S. E. 841, 122 N. Co. v. Hissman, 112 P. 800, 49 Colo- Q 1079. 308; Central of Georgia Ry. Co. v. 472 INSTRUCTIONS TO JIJBIBS 852 jurisdiction when, in an action for personal injuries, the issue of lost or impaired earning capacity of the plaintiff is presented -by the pleadings and the evidence, the court should instruct thereon with- out a request.* Where the jury may not understand the rule of law on a material point, the court should, as a general rule, in-' struct them on that point without any request for a charge,* and a failure to make a request for an instruction will not prevent a party from asserting the omission of the court to give it as error, when the record shows that any request would have been useless.^* 4. Failure to Request Instructions as Precluding Party from Com- plaining of Positive Error or Misdirection in Those Given § 472. General rule The general rule is that, where the trial court commits positive error in instructing on one of the substantial issues of the case, the failure of a party to request an instruction on the subject- matter of the erroneous charge will not preclude him from alleg- ing such error ; ^^ this rule applying in a prosecution for a misde- meanor, 12 Madden, 69 S. B. 165, 135 Ga. 205, 31 L. K. A. (N. S.) 813, 21 Ann. Cas. 1077; Atlanta, B. & A. R. Co. v. Barnwell, 75 S. E. 645, 138 6a. 569; McLane v. Pittsburg Kys. Co., 79 A. 237, 230 Pa. 29. 8 Holt V. Georgia Ey. & Power Co., 101 S. E. 758, 24 Ga. App. 607; Mc- Donald V. Southern Ry. Ca, 101 S. E. 714, 24 Ga. App.' 608. Wolfe V. Ives, 76 A. 526, 83, Conn. 174, 19 Ann. Cas. 752. 10 Griffin v. San Antonio & A. P. Ry. Co. (Tex. Civ. App.) 42 S. W. 319; International & G. N. Ry. Co. v. Un- derwood, 64 Tex. 463. 11 Ala. Bowles v. Lowery, 62 So. 107, 181 Ala. 603. Ark. Graysonla-Nashville Lumber Co. V. Hopkins, 168 S. W. 129, 113 Ark. 598. Cal. People V. Profumo, 138 P. 109, 23 Cal. App. 376. Iowa. Hall v. Cedar Rapids & M. C. Ry. Co., 87 N. W. 739, 115 Iowa, 18; Ford v. Chicago, R. I. & P. Ry. Co., 75 N. W. 650, 106 Iowa, 85. Kan. State V. Curtis, 145 P. 858, 93 Kan. 743. Ky. Huntington Contract Co. v. Bush, 200 S. W. 618, 179 Ky. 433. Mo. Brooks V. Brookes (App.) 186 S. W. 1105; Shinn v. United Rys. Co. of St. Louis, 125 S. W. 782, 146 Mo. App. 718. N. Y. Whittaker v. Delaware & H. Canal Co., 49 Hun, 400, 3 N. Y. S. 576; Carnes v. Piatt, 29 N. Y. Super. Ct 270. Pa. Wilkinson v. Northeast Bor- ough, 64 A. 734, 215 Pa. 486; Gar- rett V. Gonter, 42 Pa. 143; Seigle v. Louderbaugh, 5 Pa. 490. S. D. Tosini v. Cascade Milling Co., 117 N. W. 1037, 22 S. D. 377. Test. Edwards v. Clemmons (Civ. App.) 181 S. W. 840; Sauer v. Velt- mann (Civ. App.) 149 S. W. 706 ; In- ternational & G. N. Ry. Co. v. Kuehn, 11 Tex. Civ. App. 21, 31 S. W. 322; Missouri, K. & T. Ry. Co. v. Kirsch- ofCer (Civ. App.) 24 S. W. 577 ; Berg- stroem v. State, 58 Tex. 92. 12 Boattenhamer v. State, 206 S. W. 344, 84 Tex. Cr. R. 210; Novy v. State, 138 S. W. 139, 62 Tex. Or. E. 492. 853 REQUESTS OR PRAYERS FOR INSTRnCTIONS § 475 § 473. What constitutes positive error That a charge as given has a tendency to mislead is generally held not to constitute affirmative error within the above rule, and if the aggrieved party wishes to complain of such rnislead- ing tendencies he should ask an explanatory charge.-^* It is not an affirmative error within the above rule to omit from the charge of the court a material part of the pleadings of a party ,^* or to fail to submit the theory under which a party may recover while submitting the theory under which his -adversary can re- cover.'® § 474. Error in instructions induced by party Where the court, in its instructions, follow^ the rule of law adopted by a party on the trial of the case, and such party fails to require an instruction announcing a different rule, he cannot on appeal avail himself of an alleged error in so charging.*® B. Time of Making Requests Manner and time of preferring requests for written instructions, see ante, § 448. § 475. Rule in absence of specific regulation Where no statute governs the subject, the time within which instructions should be requested is within the sound discretion ot the trial court; such discretion to be exercised fairly arid liber- ie Ala. Aquilino V. Birmingham Imd. Plummer v. Indianapolis TJn- Ey., Light & Power Co., 77 So. 328, ion Ry. Co., 104 N. E. 601, 56 Ind. 201 Ala. 34; Blount County Bank v. App. 615. , Harris, 77 So. 43, 200 Ala. 669 ; Ee- Mass. Commonwealth v. Middle- public Iron & Steel Co. v. Howard, by, 73 N. E. 208, 187 Mass. 342. 72 So. 263, 196 Ala. 663 ; Portsmouth ^^^^ ^^^ Kraemer, 97 N. W. Cotton OU Eeflning Corp V Madrid 413, 91 Minn. 26. Cotton Oil Co., 71 So. Ill, 195 Ala. -t x. „ in. n do t.t xxr 256 ; Alabama Consol. Coal & Iron Co. ^^"ev. Brownell v. Fuller, 83 N. W. V. Heald, 55 So. 181, 171 Ala. 263; 669, 60 Neb. 558. Merrill v. Sheffield Co., 53 So. 219, 169 N. Y. Woods v. Long Island E. Ala. 242 ; E. Eose & Co. v. Woods, Co., 54 N. E. 1095, 159 N. Y. 546, af- 39 So. 581 ; Moore t. Nashville, C. fir,ming judgment and order 42 N. Y. & St. L. Ey., 34 So. 617, 137 Ala. 495 ; s. 140, 11 App. Div. 16. GUliland v. E. G. Dunn & Co., 34 iiEstes v. Estes (Tex. Civ. App.) So. 25, 136 Ala. 327; Anniston City ^^ S. W. 304; International & G. Land Co. v. Edmondson, 30 So. 61, jj jj q^, ^ Garcia, 117 S. W. 206, 127 Ala. 445 ; Pullman Palace-Car g^ ^g^ ^iv. App. 59 ; Galveston, H. Co. V. Adams, 24 So. 921, 120 Ala. ^ jj ^ ^o. v. Alberti, 103 S. W. 699, 581, 45 L. E. A. 767, 74 Am. St. Eep. 47 rpgx. Civ. App. 82. f ?i A^'^^'^lo ^- ^Tr!^^'J^\^iih^^22 " Erp V. Eaywood Canal & Milling 116 Ala. 82 Drennen v. Smith, 2^ ^ „. ' . ^„q S W 897 So. 442, 115 Ala. 396. Z.^J^'^'^^^ Ark. Flowers v. Flowers, 85 S. " Maloney v. Chicago & N W, Ry. W. 242 74 Ark. 212. Co., 95 Iowa, 255, 63 N. W. 690. 476 INSTRUCTIONS TO JURIES 854 ally with a view to a full hearing and the trial of cases on their merits, and with a view to affording counsel reasonable oppor- tunity to prepare requests.^' In the absence of any specific rule of court or statute controlling the matter, however, there must come a time when the court is not called upon to listeh to, and pass upon, further requests to charge.^* Thus it is held that or- derly procedure does not permit that, when a jury on its own mo- tion returns to the courtroom for further instructions, the case- should be again opened for the submission by counsel on either- side of further requests.^* § 476. Regulation by statute or rule of court Ordinarily a limitation of the time for presenting requests for instructions is prescribed by statute or rulp of court, and when this- is the case it is not error for the court, subject to qualifications to- be hereafter stated, to refuse an instruction not presented in the time named.^** 17 Dixon V. State, 13 Fla. 636; Craddock v. Barnes, 54 S. E. 1003, 142 N. G. 89; Brewer v. State, 165 P. 634, 13 Okl. Cr. 514. 18 Astruc V. Star Co. (C. C. N. Y.) 182 F. 705 ; Prltchett v. Southern Ry. Co., 72 S. E. 828, 158 N. C. 88. 19 Flexilis Werke, Spfezial Tiegel Stahlgiesserei, Gesellschaft Mit Beschrankter Haftung v. Hess (C. O. A. Pa.) 205 F. 850, 124 O. C. A. 52. See, also, ante, § 458. 2oCal. Waldie v. Doll, 29 Oal, 555. Ga. Freeman v. Petty, 95 S. B. 737, 22 Ga. App. 199; Commercial City Bank v. Sullivan, 90 S. B. 173, 18 Ga. App. 608; Central of Georgia Ky. Co. V. Borland, 78 S..E. 352, 12 Ga. App. 729. 111. Kauch V. Bankers' Nat. Bank of Chicago, 143 111. App. 625; Chica- go & A. Ky. Co. V. Louderback, 125 111. App. 323; Pennsylvania Co. v. Greso, 102 111. App. 252; Chicago City Ry. v. Sullivan, 76 111. App. 505. Ind. Klitzke v. Smith, 109 N. B. 412, 59 Ind. App. 461; Lake Erie & W. R. Co. v. BrafCord, 43 N. B. 882, 15 Ind. App. 655 ; German Fire Ins, Co, V. Columbia Encaustic Tile Co., 15 Ind. App. 623, 43 N. E. 41 ; Craig v. Frazier, 127 Ind. 286, 2fi N. E. 842; Puett V. Beard, 86 Ind. 104. Mass. Randall v. Peerless Motor- Car Co., 99 N. E. 221, 212 Mass. 352 ; Manning v. Anthony, 94 N. B. 466, 208 Mass. 399, 32 L. R. A. (N. S.) 1179; Garrity v. Higgins, 58 N. E. 1010, 177" Mass. 414. Mo. Sweet v. Bunn, 193 S. W. 897.- 195 Mo. App. 500. N. C. Nail V. Brown & Williamson, 64 S. E. 434, 150 N. C. 533; Shober v., Wheeler, 113 N. C. 370, 18 S. E. 328 ; liUttrell v. Martin, 112 N. O. 593, IT S. B. 573; Marsh v. Richardson, 106 N. C. 539, 11 S. B. 522. OMo. Cincinnati, H. & D. Ry. v. Taylor, 27 Ohio Cir. Ct. R. 757. Pa. Sgier v. Philadelphia' & R. Ry.. Co., 103 A. 730, 260 Pa. 343. S. C. Cutter V. Mallard Lumber- Co., 83 S. B. 595, 99 S. C. 231. Vt. W. B, Johnson & Co. v. Cen- tral Vermont Ry. Co., 79 A. 1095, 8* Vt. 486; Vaughan v. Porter, 16 Vt. 266. Effect of constitutional provi- sion requiring judges to declare the law. Although a constitutional provision requires judges in charging juries "to declare the law," they are not bound to charge in the absence of a request submitted in accordance - with a rule of court requiring re- quests to be submitted before argu- ment, and providing that such addi- 855 REQUESTS OE PRAYERS FOR INSTRUCTIONS 478 § 477. Prematurity of requests Requests for instructions are improper, and are properly re- fused, when they are prematurely made, or made at an inoppor- tune time, as where a request is presented before the introduction of any evidence,^^ or during the midst of the examination of a wit- ness,^^ or in the midst of the argument of counsel to the jury.^* § 478. Tardiness of requests In one jurisdiction, requests should not be made until after the main or general charge.** In the majority of jurisdictions, how- ever, requests for instructions should be presented before the general charge of the court.*^ To entitle a party to have consid- tional requests as may be suggested by the argument may be submitted at the conclusion thereof. Morrison v. Mutual Benev. Ass'n of Chesterfield County, 59 S. B. 27, 78 S. C. 398. E£Pect of giving ivrong reason for refusing request. The fact that the judge, in refusing to give instruc- tions which are requested later than the time prescribed by law, bases his refusal on a mistaken impression that he has already given the same in- structions in substance, does not make such refusal error. Posey v. Patton, 109 N. C. 455, 14 S. E. 64. 21 Comstock V. Livingston, 97 N. E. 106, 210 Mass. 581. 22 People V. Germino, 175 P. 489, 38 Cal. App. 100 ; Wood v. Skelly, 81 N. B. 872, 196 Mass. 114, 124 Am. St. Re» 516. 23 Richmond & M. R. Co. v. Hum- phreys, 90 Va. 425, 18 S. B. 901. 24 Myers v. Taylor, 64 S. W. 719. 107 Tenn. 364; Chicago Guarajity Fund Life Soc. v. Ford, 58 S. W. 239, 104 Tenn. 533 ; Felton v. Olarkson, 53 S. W. 733, 103 Tenn. 457; Cooper v. Overton, 52 S. W. 183, 102 Tenn. 211, 45 U R. A. 591, 73 Am. St. Rep. 864; Cumberland Telephone & Telegraph Co. V. Shaw, 52 S. W. 163, 102 Tenn. 313 ; Chesapeake, O. & S. W. R. Co. v. Hendricks, 88 Tenn. 710, 13 S. W. 696, J.4 S. W. 488 ; Chesapeake, O. & S. W. R. Co. V. Foster, 88 Tenn. 671, 13 S. W. 694, 14 S. W. 428. 25 u. S. City of Chicago v. Le Moyne, 119 F. 662, 56 C. 0. A. 278; (C. C. Mass.) United States v. Gibert, Fed. Cas. No. 15,204 ; (O. O. A. N. Y.) Holmes v. Montauk Steamboat Co., 93 F. 731, 35 C. C. A. 556. Ind. Town of Noblesville v. Ves- tal, 118 Ind. 80, 20 N. E. 479. Mass. Mones v. Bay State St. Ry. Co., 125 N. E. 151, 234 Mass. 82 ; Mc- Mahon v. O'Connor, 137 Mass. 216. Or. Johnson v. Portland Ry., Light & Power Co., 155 P. 375, 79 Or. 403. Tex. Galan v. State, 177 S. W. 124, 76 Tex. Cr. R. 619 ; Kell v. Ross (Civ. App.) 175 S. W. 752; Reed v. Missouri, K. & T. Ry. Co. of Texas (Civ. App.) 174 S. W. 956; Watts v. State, 171 S. W. 202, 75 Tex. Cr. R. 330; James v. State, 167 S. W. 727, 74 Tex. Cr. R. 139. Utah. Flint v. Nelson, 10 Utah, 261, 37 P. 479. Vt. Russ v. Good, 97 A. 987, 90 Vt. 236 ; State v. Gomez, 96 A. 190, 89 Vt. 490; Clark v. Tudhope, 95 A. 489, 89 Vt. 246. Discretion of court. The giving of further instructions to the jury aft- er the charge has been concluded is discretionary, and exceptions to a re- fusal to do so will not lie. Tibbetts v. WiUiams, 32 Me. 598, Append. Request for instruction as to purpose and effect of evidence. Where evidence has been treated in the arguments of counsel on both sides as bearing only on the credit of a witness, and the court has charged accordingly, no exception lies to a re- fusal of a request, made for the first time aftei; the charge has been given. 478 INSTRUCTIONS TO JURIES sm ered requests for instructions presented after the conclusion of the main charge of the court, it should appear that such requests were made necessary by something the court has already charged or omitted to charge.*® In a number of jurisdictions, under statute or rule of court, the requirement is that requests to charge should be made at the close of the evidence,*" or before the commencement or close of the ar- to instruct the jury to consider the evidence as evidence in chief. Wil- mot V. Howard, 39 Vt. 447, 94 Am. Dec. 338. 2 6 Leydecker v. Brintnall, 158 Mass. 292, 33 N. E. 399; Dunne v. Jersey City Galvanizing Co., 64 A. 1076, 73 N. J. Law, 5S6. Fntting counsel to election. A presiding justice has no authority to put counsel to an election between presenting his requests during his ar- gument to the jury and having them ruled on as he proceeds, or waiving them. Maxwell v. Massachusetts Ti- tle Ins. Co., 92 N. E. 42, 206 Mass. 197. 27 U. S. Atchison, T. & S. F. Ky. Co. V. Hamhle, 177 F. 644, 101 C. O. A. 270. Ind. Duckwall v. Williams, 63 N. E. 232, 29 Ind. App. 650. N. J. Carmany v. West Jersey & S. S. E. Co., 74 A. 656, 78 N. J. Law, 552 ; Dunne v. Jersey City Galvaniz- ing Co., 64 A. 1076, 73 N. J. Law, 586. N. C. Barringer v. Deal, 80 S. E. 161, 164 N. C. 246 ; State v. Hairston, 28 S. E. 492, 121 N. C. 579 ; Ward v. Albemarle iH R. R. Co., 112 N. C. 168, 16 S. E. 921; Posey v. Patton, 109 N. C. 455, 14 S. B. 64 ; Grubbs v. North Carolina Home Ins. Co., 108 N. C. 472, 13 S. E. 236, 28 Am. St. Rep. 62. WaBb. State V. Brache, 115 P. 853, 63 Wash. 396. Bight to prefer requests before arguments of counsel. The words "at or before the close of the evi- dence," in Eevisal, § 536 (Code, g 414), requiring that a request to put the instructions In writing shall be made "stt or before the close of the evidence," if inserted in sec- tion 538 (Code, § 415), providing that counsel shall reduce their prayers for special instructions to writing. would mean that requested instruc- tions could be made at some time not later than the beginning of the argu- ment of counsel to the jury, and the refusal of requested charges because- made too late, when made before the commencement of argument, is errone- ous. Craddock v. Barnes, 54 S. E. 1003, 142 N. C. 89. Where, after the evidence was closed and the jury dis- missed for the noon recess, counsel,, at the request of the judge, argued a certain point in the case as prelimina- ry to the argument after the recess, it was held that it was not too late to- request a written charge after court had reconvened and before the argu- ment to the jury had commenced. Universal Metal Co. v. Durham & C. R. Co., 59 S. B. 50, 145 N. C. 293. Discretion of court tritli respect, to granting time to prepare re- quests before arguments of coun- sel. It is In the sound discretion of the trial court to determine whether time shall be given either party, at the conclusion of the evidence and be- fore the commencement of the a»gu- ment, to reduce his request for special instructions to writing and deliver them to the court. Phillips v. Thorne, 103. Ind. 275, 2 N. B. 747. Where, in a personal injury action, the only doubtful question is as to the amount of recovery, and there are no difficult questions of law involved, and de- fendant, represented by two counsels, presents at the close of the testimony- four instructions in writing and re- quests time to prepare further in- structions, and the amount of the- verdict is not excessive, the judgment will not be reversed because the court refused to grant further time. Atchi- son, T. & S. F. R. Co. V. Frazier, 27^ Kan. 463. , 857 BEQUESTS OR PRAYERS FOR INSTRUCTIONS §478 guments (bf counsel,^* and such a rule is a reasonable one.*® In some jurisdictions such requests are not unseasonable, if made after the delivery of the main charge,** and it is improper to refuse 2 8 Ala. Osborn v. State, 73 So. 985, 198.Ala. 21. ■ Ariz. Territory v. Harper, 1 Ariz. 399, 25 P. 528. Ark. Lee v. State, 223 S. W. 373 ; St Louis Southwestern Ry. Oo. v. Mitchell, 171 S. W. 895, 115 Ark. 339, Ann. Cas. 1916E, 317. Cal. People v. Lang, 76 P. 232, 142 Cal. 482. 111. P^lndiville t. People, 42 111. 217. Ind. Bartlow v. State, 109 N. E. 201, 183 Ind. 398; Adams v. Main, 29 N. E. 792, 3 Ind. App. 232, 50 Am. St. Eep. 266; Benson v. State, 119 Ind. 488, 21 N. E. 1109 ; Surber v. State, 99 Ind. 71 ; Hege v. Newson, 96 Ind. 426. Iowa. Shelberg v. Jones, 151 N. "W. 1066, 170 Iowa, 19. ra. State v. Gordon, 39 So. 625, 115 La. 571. Mass. Quimby v. Jay, 82 N. E. 1084, 196 Mass. 584; Root v. Boston Elevated Ry. Co., 67 N. E. 365, 183 Mass. 418; In re Keohane, 60 N. E. 406, 179 Mass. 69. Minn. Gracz v. Anderson, 116 N. W. 1116, 104 Minn. 476. Miss. Montgomery v. State, 37 So. 835, 85 Miss. 330. Mo. Hall V. City of St. Joseph, 146 S. W. 458, 163 Mo. App. 214 ; Payne V. Payne, 57 Mo. App. 130. N. Y. Schiihle v. Cunningham, 14 Daly, 404. N. C. State v. Claudius, 80 S. E. 261, 164 N. C. 521; Holder v. Giant Lumber Co., 76 S. E. 485, 161 N. C. 177; Biggs v. Gurganus, 67 S. B. 500, 152 N. C. 173. Ohio. Toledo, F. & N. Ry. Co. v. Gilbert, 24 Ohio Cir. Ct. R. 181. Pa. Everett v. Sturges, 46 Pa. Su- per. Ot. 612. S. 0. Salley v. Cox, 77 S. E. 933, 94 S. O. 216, 46 L. R. A. (N. S.) 53, Ann. Cas.. 1915A, 1111; State v. Glenn, 70 S. E. 453, 88 S. C. 162. S. D. White V. Amrhien, 85 N. W. 191, 14 S, D, 270. Tex. O'Toole v. State, 183. S. W. 1160, 79 Tex. Cr. R..153; Forward v. State, 166 S. W. 725, 73 Tex. Or. R. 561. Vt. Cady v. Owen, 34 Vt. 598; State V. Catlin, 3 Vt. 530, 23 Am. Dec. 230. Bequests not too late. A request for an instruction should not be re- jected as too late, when made dur- ing the opening and only argument in the case. McCaleb v. Smith, 22 Iowa, 242. Instructions on accomplice tes- timony. The rule of court that in- structions requested must be present- ed before argument does not apply to the instruction that "the testimony of an accomplice is to be viewed with distrust," which the statute declares is to be given on all proper occasions. People V. Silva, 54 P. 146, 121 Cal. 668. Questions of fact. A rule of court, requiring the instructions re- quested to be submitted before argu- ment, does not apply to instructions on questions of fact. State v. Magers, 57 P. 197, 35 Or. 520. EfPeot in criminal cases of rule of court in civil cases. A rule of court requiring requested instructions in civil cases to be presented before the conclusion of the argument does not justify a refusal to consider re- quested instructions presented in a criminal case after argument and aft- er other instructions had been read. People V. Cook, 83 P. 43, 148 Cal. 334. 29 Manhattan Life Ins. Oo. v. Fran- cisco, 17 Wall. 672, 21 L. Ed. 698; Sterling Organ Oo. v. House, 25 W. Va. 64. 3 Gallagher v. McMuUin, 7 App. Div. 321, 40 N. T. S. 222; PfefEele v. Second Ave. R. Co., 34 Hun, 497; Chapman v. McCormick, 86 N, Y. 479. Rule in particular jurisdictions. In the Southern district of New York it is the custom not to refuse requests after the charge has been delivered, but requests at that time cannot re- § 479 INSTRUCTIONS TO JURIES 85S requests merely because they are so made/^ and in some jurisdic- tions, or under some rules of court, the requirement simply is that requests should be tendered before the jury retire.** § 479. Operation and mandatory character of statutes or rules of court prescribing time for presenting requests A rule of court cannot exist in the breast of the judge, but must be announced as a rule and of record,** and where such a rule pre- scribing the time of presenting requests is in writing, and spread upon the records of the court, and given reasonable publicity, it will be obligatory upon the court, and no discretion in the matter allowed, unless the exercise of discretion is permitted by the rule itself.** Ordinarily, however, statutes or rules of court prescrib- ing the time of making requests for instructions are not framed in such language as to prevent the court, if in its opinion it is proper to do so in the furtherance of justice, from granting or passing on requests after such time.** ceive the careful attention they would receive if presented at the close of the evidence, and the trial judge should not be held to the same de- gree of accountability for erroneously refusing a request then presented as he must be one presented at a more appropriate time. (O. 0. A. N. Y.) Linn v. United States, 251 F. 476, 163 C. O. A. 470. 31 Carey v. Chicago, M. & S. P. Ey. Co., 61 Wis. 71,- 20 N. W. 648. S2 Ga. Macon v. State, 100 S. B. 785, 24 Ga. App. 337 ; Brown v. State, 100 S. E. 452, 24 Ga. App. 268; Tow- ler V. State, 100 S. E. 42, 24 Ga. App. 167 ; Waller v. State, 97 S. B. 876, 23 Ga. App. 156 ; McLeod v. State, 95 S. E. 934, 22 Ga. App. 241 ; Southern Ry. Co. V. Williams, 91 S. E. 1001, 19 Ga. App. 544; Farkas v. S. Cohn & Son, 91 S. E. 892, 19 Ga. App. 472; SeaboardjAir Line Ry. v. Barrow, 89 S. B. 383, 18 Ga. App. 261 ; Seaboard Air line Ry. v. Lyon, 89 S. E. 384, 18 Ga. App. 266 ; Brooks v. State, 96 Ga, 353, 23 S. E. 413. Kan. State v. Bloom, 136 P. 951, ,91 Kan. 156. Compare, Firman v. Blood, 2 Kan. 496. N. J. Engeman v. State, 54 N. J. Law, 247, 23 A. 676. N. D. State V. Barry, 92 N. W. 809, 11 N. D. 428. See State v. Laycock, 141 Mo. 274, 42 S. W. 723. Request too late after retire- ment of jury. It is not error to re- fuse a request to charge made after the jury had retired to deliberate on the case. Key v. State, 62 So. 335, 8 Ala. App. 2. Where the trial judge makes an inaccurate statement of some particular part of the testimony in the course of his charge, the coun- sel for the party aggrieved should call the judge's attention to the unin- tentional slip before the jury retires, and have it corrected. Commonwealth V. Wasson, 42 Pa. Super. Ct. 38. See, also, ante, § 457. 88 Chicago Anderson Pressed Brick Co. V. Sobkowiak, 148 111. 573, 36 N. E. 572. 3* Illinois Cent. R. Co. v. Haskins, 115 111. 300, 2 N. B. 654. 86 Cal. People V. Demasters, 105 Gal. 669, 39 P. 35; People v. Sears, 18 Cal. 635. Conn. Farrington v. Cbeponis & Panarausky, 78 A. 652, 84 Conn. 1. 111. Frank Parmelee Co. v. Griffin, 136 111. App. 307, judgment affirmed Griffin v. Frank Parmelee Co., 83 N. E. 1041, 232 111. 503; Lyman v. Kline, 128 111. App. 497. Ky, Wills V. Tanner, 18 S. W. 166. Mass. Commonwealth v. Hassan, 126 N. E. 287, 235 Mass. 26; Robert- 859 BEQUESTS OR PRAYERS FOR INSTRUCTIONS §479 Such a regulation is not applicable to a request for an instruc- tion, the occasion for which arises after the expiration of the time prescribed,*" and where the court omits from its' charge matters which are of such a nature that a party may justly assume that they will be treated in the charge, he may present requests there- after to supply such omissions, notwithstanding a rule requiring such presentation before the arguments of counsel or before the main charge.*' Where an instruction without qualification is calculated to mis- lead the jury, it is error to refuse, on the ground that it is not timely, a requested instruction which corrects such misleading tend- son V. Boston & N. St. Ry. Co., 76 N. B. 513, 190 Mass. 108, 3 L. R. A. (N. S.) 588, 112 Am. St. Rep. 314. Mich. People V. Garbutt, 17 Mich. 9, 97 Am. Dec. 162. Minn. Sanborn v. School Dist. No. 10, Rice County, 12 Minn. 17 (GU. 1). Mo. Buck V. People's Street Rail- way & Electric Light & Power Co., 108 Mo. 179, 18 S. W. 1090. Neb. Billings v. McCoy, 5 Neb. 187 s". C. State V. Williams, 56 S. E. 783, 76 S. O. 185. Vt. Fadden v. McKinney, 89 A. 351, 87 Vt. 316. Matters authorizing departure from rule. Though a rule of court requires propositions to be submitted before argument, the court should, in its sound legal discretion, receive propositions submitted after argu- ment, where counsel states he thought the rule required the propositions to be submitted before judgment. Mann V. Leamard, 63 N. E. 178, 195 111. 502. Matters not requiring departure from rule. Under a rule of court of Cook county that "all instructions must be presented to the court at the conclusion of the evidence," an in- struction, presented nearly at the close of the address of the plaintiff's attorney to the jury, Is properly re- fused, where the argument of plain- tifE's counsel does not render neces- sary the giving of the instruction. Pittsburg, C, C. & St. L. Ry. Co. v. Hewitt, 102 111. App. 428, judgment affirmed 66 N. E. 829, 202 111. 28. Iieave of court to present re- quests after time prescribed for presentation, A rule of court re- quiring instructions requested to be presented before argument, does not mean that leave must be olDtained to present requests later, but that re- quests presented later cannot be en- tertained without leave of court. Robertson v. Boston & N. St. Ry. Co., 76 N. E. 513, 190 Mass. 108, 3 L. E. A. (N. S.) 588, 112 Am. St. Rep. 314. Where the trial judge received and refused certain requests to charge, presented after argument, his act in so doing was in effect the giving of special leave to present such instruc- tions at the time they were presented. Robertson v. Boston & N. St. Ry. Co., 76 N. E. 513, 190 Mass. 108, 3 L. R. A. (N. S.) 588, 112 Am. St. Rep. 314. 36 Standard Fire Ins. Co. v. Wren, 11 111. App. 242. 3 7 Freeby v. Town of Sibley, 167 N. W. 770, 183 Iowa, 827 ; Brick v. Bos- worth, 162 Mass. 334, 39 N. E. 36; Crippen v. Hope, 38 Mich. 344; Mc- Kennan v. Omaha & C. B. St. R. Co., 146 N: W. 1014, 95 Neb. 643 ; Camp- bell V. State, 141 S. W. 232, 63 Tex. Cr. B. 595, Ann. Cas. 1913D, 858. Omission to state rules of evi- dence. Counsel have a right to as- sume that, in its charge, the court, without request, will state such of the rules of evidence as are pertinent, and hence it is error to refuse a further instruction asked at the close of the charge, embodying a correct rule of evidence peculiarly applicable to the issues, on the ground that it should have been presented before the charge was giv6n. Malone v. Third Ave. R. Co., 42 N. T. S. 694, 12 App. Div. 508, 4 N. Y. Ann. Cas. 43. g 479 INSTRUCTIONS TO JURIES 860, ericies,** and a timely tender of a request, which is refused because of defects in form, will be sufficient to make it an abuse of dis- cretion on the part of the court to subsequently refuse to give, be- cause not tendered in time, another instruction good in form and involving the same legal principle, the application of which to the issues the party making the request is entitled to under the facts of the case, and the giving of which cannot injure the opposite party.-""* A request not made in time will make it the duty of the court in some jurisdictions to submit to the jury the law applicable to the case as made by the evidence of the requesting party upon the points to which attention is called in such request.*" A rule re- quiring requests to be made before arguments of counsel is with- out force in a case which is siubmitted to the jury without argu- ment.*^ C. FoEMAL Matters Connected with Preparation oe Requests § 480. Requisites of requests in general The court is not bound to consider requests to charge which are not presented as required by the rules of court,** and the court may properly refuse instructions which are bad in form.** The rules that govern the court in framing instructions on its own mo- tion, and which have been discussed in preceding chapters, apply to the preparation by counsel of instructions to be requested on behalf of a party.** Requests which are unintelligible, indefinite, 88 Hoge V. Turner, 32 S. E. 291, 96 the assaulted party was intended, the Va. 624. charge was fatally defective, and, 30 Hill V. Wright, 23 Ark. 530. even if otherwise good, was properly 4 Allen V. Perry, 56 Wis. 178, 14 refused. Moore v. State, 45 So. 656, N. W. 3. 154 Ala. 48. A requested instruction, 41 Tinney' v. Endicott, 5 Cal. 102. ™ » homicide case, which refers to ^„Tj- v ^ oj.„j-„ rvA a xn ^oT the person killed as defendant, and to 42 Richardson y. State, 90 S. E 487 ^^^^^^^ ^^ ^^^^^^ pfoperly re- l^ ^^-^m^^vJ^^' r 97« %ti wa^ f'l^ed as meaningless. Underwood v. S. E. 401, 110 SO. 278 See Ham- g^^^ gg g^ g42^ ^,^9 ^^ g TT^'TnTf ffif rn P A 1^ Y^ 9^ F **■"• S- helper v. Equitable Life ^^^''^^J^^^^J^l °;„^- ?;.,^i?f^f: Assur. Soc of umted itates, 159 F. 747, 163 0. O. A. 79, certiorari de- 206. Pn^^P^ To 4 s A qqf 246 TI^ *»»• J^^eles & Oolias Confection- ?fi9 fi9 ? ™ ^7 • ^'^y Co. V. Booze, 62 So. 12. 181 Ala. 662, 62 L. Ed. 927. 455. Alabama Great Southern Ry. 43 Western Union Telegraph Co. v. Co. v. Guest, 39 So. 654, 144 Ala. 373; Rowell, 45 So. 73, 153 Ala. 295. McWhorter v. Bluthenthal & Bickart, Inadvertent use o£ wrong word. 33 So. 552, 136 Ala. 568, 96 Am. St. Where a request to charge used the Rep. 43. word "defendant" where the name of Conn. Beattie v. McMullen, 861 REQUESTS OK PKAXERS FOE INSTRUCTIONS §480 misleading, or confusing are properly refused,*^ as where a re- quest is so defaced with erasures and interlineations as to be il- legible,*® and it is not improper to refuse a request setting forth a proposition which is an absurdity, although it may be obvious that this is the result of a palpable and unintentional error on the part of counsel in framing the request.*' A request to charge several enumerated sections of a statute, referring to them by number only, is not sufficiently definite to require favorable action by the court.** Requests, however, need not be so worded as to anticipate and guard against every possible opportunity for mis- apprehension on the part of the jury.** A mere suggestion to the trial court is not sufficient to require it to submit an issue,®" and a request merely reciting certain facts. Weand & McDermott, 74 A. 767, 82 Conn. 484. Ga. McElwaney v. McDiarmid, 62 S. E. 20, 131 Ga. 97. 111. Swengel v. Illinois Third Vein Coal Co:, 154 111. App. 409. Mo. Scanlan v. Gulick, 97 S. W. 884, 199 Mo. 449. Ohio. American Steel Packing Ca V. Conkle, 99 N. B. 89, 86 Ohio St 117. Citation of cases. A memoran- dum of authorities in support of a request for an instruction, written on the margin thereof, does not give ground for refusing the instruction, if otherwise proper. City of South Omaha v. FenneU, 94 N. W. 632, 4 Neb. (Unof.) 427. 45 Ala. McDonald v. State, 51 So. 629, 165 Ala. 85. Md. Neighbors v. Leatherman, 82 A. 152, 116 Md. 484 ; Robey v. State, 50 A. 411, 94 Md. 61, 89 Am. St. Rep. 405; Blair v. Blair, 39 Md. 556; Weber v. Zimmerman, 22 Md. 156; Dorsey v. Harris, 22 Md. 85 ; Kent v. Holliday, 17 Md. 387; Baltimore & O. R. Co. V. Resley, 14 Md. 424 ; Wheeler V. State, 7 Gill, 343. M<>. Hulett V. Missouri, K. & T. Ry. Co., 145 Mo. 35, 46 S. W. 951. Mont. Ramsey v. Burns, 69 P. 711, 27 Mont 154. N. Y. Van Vechten v. Griffiths, 40 N. Y. (1 Keyes) 104. N, C. . Wooten v. HoUeman, 88 S. E. 480, 171 N. C. 461. Tex. Creager v. Tarborough (Olv. App.) 87 S. W. 376. Va. Kitty v. Fitzhugh, 4 Rand. 600. W. Va. Barens v. City of Grafton, 56 S- B. 608, 61 W. Va. 408; Patton V. Elk River Nav. Co., 13 W. Va. 259. «6 Baton V. State, 63 So. 41, 8 Ala. App. 136; Roberts v. State, 54 So. 993, 171 Ala. 12. *' Macon Consol. St R. Co. v. Barnes, 38 S. E. 756, 113 Ga. 212. 48 Conley v. State, 94 S. E. 261, 21 Ga. App. 134. 49 Parson v. Lyman, 73 N. W. 634, 71 Minn. 34. 80U. S. (C. C. A. Okl.) Stout V. United States, 227 F. 799, 142 C. C. A. 323, certiorari denied 36 S. Ct 549, 241 U. S. 664, 60 L. Ed. 1227. Ga. Jackson v. State, 91 S. E. 923, 19 Ga. App. 621. Iowa. State V. Klute, 140 N. W. 864, 160 Iowa, 170. Me. Virgie v. Stetson, 73 Me. 452. Mo. State V. Starr, 148 S. W. 862, 244 Mo. 161. Or. State V. Magers, 58 P. 892, 36 Or. 38. S. C. State V. Wine, 36 S. E. 439, 58 S. C. 94. Tex. Orient Ins. Co. v. Wingfield, 108 S. W. 788, 49 Tex. Civ. App. 202 ; Warthan v. State, 55 S. W. 55, 41 Tex. Cr. R. 385 ; Missouri, K. & T. Ry. Co. of Texas v. Cardena, 54 S. W. 312, 22 Tex. Civ. App. 300. Wyo. Smith v. State, 101 P. 847, 17 Wyo. 481. Requests insufficient within role. In an action on an account. I 480 INSTRUCTIONS TO JURIES 862 without making any application of them, is properly refused,^^ as is a requested instruction to disregard certain counts in the com- plaint, which does not specify the supposed defects therein .^^ A request should be so constructed that the trial court can an- swer it by a single affirmation or negation,®* and so that the court can give it in the very language of the request,®* and a request is improperly framed which so mixes the facts with the law as ,to necessitate 'either refusing to give the instruction or to discriminate between the facts and the law.®® ■a mere contention of plaintiff's coun- sel during the trial that there was an account stated by reason of defend- ant's failure to object within reason- able time after it was rendered can- not be regarded as a request for an instruction on such issue. Davis v. Stephenson, 62 S. E. 900, 149 N. 0. 113. Where the trial judge ofCered to recall the jury and give instructions which defendant claimed were pre- sented- to him, if counsel thought it was necessary, but counsel did not state that they desired them to be given, but merely said they excepted to the refusal to give the instructions, there was no such request as .would put the court In error. Scherrer v. City of Seattle, 101 P. 144, 52 Wash. 4. A general request that the court declare the whole law governing the case was insufficient to call the court's attention to its failure to charge on alibi. State v. Bond, 90 S. W. 830, 191 Mo. 555. A request to instruct- that defendant is presumed to be in- nocent, and all evidence against him must be weighed with this presump- tion in the minds of the jurors from the beginning of the trial to the mo- ment that the jury concludes, if it does so conclude, that defendant is guilty, is not a request to instruct that the jurors' minds must be kept open and free from any conclusion till after the jury has heard all the evidence. Commonwealth v. Clancy, 72 N. E. 842, 187 Mass. 191. An in- formal request to charge on the sub- ject of the duty of a person about to cross a railroad track to stop, look, ' and listen, without stating any legal proposition, was properly ignored. Wright y. Western & A. R. Co., 77 S. E. 161, 139 6a. 343. Effect of objections and excep- tions to instructions given. A bare exception to a charge given is not equivalent to a request to charge. Ripper v. United States (0. O. A. Mo.) 179 F. 497, 103 C. C. A. 478, denying rehearing 178 F. 24, 101 O. C. A. 152. And a general objection of failure to instruct on the whole law of the case is insufficient to require an instruc- tion limiting the jury's consideration of another crime comniitted at the same time the offense charged was committed to its relation to such of- fense. State V. Rasco, 144 S. W. 449, 239 Mo. 535. But an objection to an instruction on a criminal trial that the jury should not fix the punish- ment, and the saving of an exception thereto, has been held equivalent to a request to charge that the jury fix the punishment. Reynolds v. United States, 103 S. W. 762, 7 Ind. T. 51. 01 Barclay v. Coman, 110 N. W. 49, 146 Mich. 650. 5 2 Heidenreich v. Bremner, 103 N. B. 275, 260 In. 439, affirming judg- ment 176 111. App. 230 ; Chicago, R. I. & P. By. Co. V. Clough, 134 111. 586, 25 N. E. 664, 29 N. E. 184. »8 Fisher v. Delaware, L. & W. E. Co., 76 A. 718, 227 Pa. 635 ; Schweit- zer V. Williams, 43 Pa. Super. Gt 202; Commonwealth v. Page, 6 Pa. Super. Ct. 220. 0* Fuller V. State, 97 Ala. 27, 12 So. 392; Heilbron y. State, 2 Tex. App. 537; Montgomery v. State, 107 N. W. 14, 128 Wis. 183. " Patton V. Elk River Nav. Co., 13 W. Va. 259. 863 REQUESTS OR PRAYERS FOR INSTRUCTIONS § 481 A charge marred by typographical ®® or grammatical errors " is properly refused. It is proper to prefer alternative requests, which are not incon- sistent, based on varying facts, one or more of which may be found to the exclusion of the others ; ®* but, where a party requesting a charge desires it given only in the event that more favorable re- quested charges are refused, a conditional request for its submis- sion should be made.*® Each proposition of law contended for should be covered by a single requested instruction,^ and it is proper to refuse a request which contains more than one proposition.®^ § 481. Form and requisites of request for direction of verdict in criminal case A motion, in form, to discharge the defendant in a criminal case or to dismiss the indictment may be regarded as in substance a request to direct a verdict.®^ A motion by the defendant for a verdict should state the precise grounds upon which he bases his request.** Thus a motion to direct an acquittal on account of the failure of proof on the part of the state must, unless such failure is a total one, specify wherein it is claimed such proof fails,^ and a motion for an acquittal, which fails to call the attention of the court to an alleged misnomer on which it is based, is properly refused.*^ 5 6 Reliance Life Ins. Co. of Pitts- es Kosher Dairy Co. v. New York, bnrgh, Pa., v. Garth, 68 So. 871, 192 S. & W. R. Co., 91 A. 1037, 86 N. J. Ala. 91; Smith v. E. T. Davenport Law, 161. & Co., 68 So. 545, 12 Ala. App. 456. 59 Gestean v. Bishop (Tex. Civ. 57 Schieffelln v. Schieffelin, 28 So. ^pp ) jgi g -^ ggg^ denying certliica- 687, 127 Ala. 14 ; Shields' Estate v. (-10^ to Supreme Court 180 S. W. 302. Michener 113 lU. App. !& ,, Mountain Fuel Co. v. Ba- "pY:rntil.""^'Aere'''arae'tion'rs l^-ieh 180 P. 754, 66 Colo. 275. brought by an administrator to re- " Klaw v. Life Pub. Co. (C. C. A. cover daZges for the alleged negli- N. T.) 145 F. 184, 76 C. C. A 154; gent killing of plaintifC's intestate, Rudy v. Myton, 19 Pa. Super. Ct. 312. charges which instruct the jury that 62 People v. Ledwon, 46 N. B. 1046, , under certain hypothesized conditions 153 n. y. 10 ; People v. Bennett, 49 deceased could not recover are want- n. Y. 137. Ing in clearness, and so incorrect in jj ^^^^.^ ^ Nulty, 57 Vt. 543. the use of the word "^eceased" for ^ ^_ ^^ ^^ p ^., the word "Plf^'?tife" that Oie tria^ ^^ ^54 ; State v. Tamler, 19 Or. 528, court will not be put in error ror 9= p 71 o t, r a 853 refusing such charge. Tutwiler Coal, ^^ ^- '^' ** ^- "• ^- °°^- „„^ „^ Coke & Iron Co. v. Bnslen, 30 So. 6= state v. Dyer. 67 Vt. 690, 32 A. 600, 129 Ala. 336. 814. §482 INSTRUCTIONS TO JURIES 864 § 482. Separating, numbering, and signing requests ■ Where there are several requests, they should be separated and numbered.*® In some jurisdictions requests for instructions must be signed by the party making the requests or his attprney,*' and it is proper to refuse requests not so signed.®* The trial court may, however, disregard objections to instruc- tions based on the failure to sign and number them,®* statutes re- quiring such signing and nuijibering not being considered, as man- datoryj'"" and the mere fact of such omission is no ground for re- sity Park BMg. Go., 97 N. E. 539, 177 Ind. 193; Volker v. State, 97 N. B. "422, 177 Ind. 159; Retseck y. Har- bart, 96 N. E. 386, 176 Ind. 441 ; Ba- der V. State, 94 N. E. 1(309, 176 Ind. 268; Pittsburgh, C, C. & St. L. Ry. Co. V. O'Gonner, 85 N. E. 969, 171 Ind. 686; Bacock v. State, 82 N. E. 1039, 169 Ind. 488; Starr v. State, 67 N. E. 527, 160 Ind. 661; Musser v. State, 61 N. E. 1, 157 Ind. 423; CoUett v. State, 59 N. B. 168, 156 Ind. 64; Hamilton v. State, 52 N. B. 419, 22 ind. App. 479; Houk v. Branson, 45 N. B. 78, 17 Ind. App. 119; Lake Erie & W. R. Co. v. Brafford, 43 N. E. 882, 15 Ind. App. 655 ; Citizens' St R. Co. V. Hobbs, 15 Ind. App. 610, 43 N. B. 479, 44 N. E. 377; LouisviUe, N. A. & C. Ry. Co. V. Goben, 42 N. B. 1116, 15 Ind. App. 123; Buchart v. Ell, 9 Ind. App. 353, 36 N. B. 762; Toledo, etc., R. Co. v. Cosand, 33 N. E. 251, 6 Ind. App. 222; Howard v. County Com'rs v. Legg, 110 Ind. 479, 11 N. E. 61?; Hutchinson v. Lemcke, 107 Ind. 121, 8 N. B. 71 ; State v. Sut- ton, 99 Ind. 300; Stott v. Smith, 70 Ind. 298; Sutherland v. Hankins, 56 Ind. 348. kan. Parrar v. McNair, 69 P. 167, 65 Kan. 147; Morisette v. Howard, 63 P. 756, 62 Kan. 463. Tex. First Nat. Bank of Snyder v. Patterson (Civ. App.) 185 S. W. 1018; Texas & P. Ry. Co. v. Mitchell, 26 S. W. 154; Smith v. Fordyce (Sup.) 18 S. W. 663; 60 Gibbs V. Wall, 10 Colo. 153, 14 Pac. 216; Galveston, H. & S. A. Ry. Co. V. Neel (Tex. Civ. App.) 26 S. W. 788. I" Mason v. Sieglitz, 22 Colo. 320, 44 P. 588; Terry v. Davenport, 83 N. E. 636, 170 Ind. 74. «» Basenberg v. Lawrence, 49 So. 771, 160 Ala. 422 ; Anniston Electric & Gas Co. V. Rosen, 48 So. 798, 159 Ala. 195, 133 Am. St. Rep. 32; Ur- bansky v. Kutinsky, 84 A. 317, 86 Conn. 22; Hackett v. Straw, 144 N. W. 655, 33 S. D. 17 ; • Western Union Tel. Co. y. Johnson, 41 S. W. 367, 16 Tex. Civ. App. 546. 87 Ind. Glover v. State, 109 Ind. 391, 10 N. E. 282; Hunt v. Elliott, 80 Ind. 245, 41 Am. Rep. 794 ; Jeffier- sonville, M. & I. R. Co. v. Vancant, 40 Ind. 233. Okl. Chicago Live Stock Commis- sion Co. V. Connally, 78 P. 318, 15,. Okl. 45 ; Chicago Live Stock Commis- sion Co. V. Fix, 78 P. 316, 15 Okl. 37. Tex. St. Loui,s Southwestern Ry. Co. of Texas v. Cleland, 110 S. W. 122, 50 Tex. Civ. App. 499; Moore V. Brown, 64 S. W. 946, 27 Tex. Civ. App. 208 ; Redus v. Burnett, 59 Tex. 576. Sufficiency of signing. Where a defendant presented instructions to the trial court, the request reciting the caption of the case, and that de- fendant therein requested the court to give the jury each of the following Instructions, numbered 1 to 32, inclu- sive, which was signed by defendant's attorneys as attorneys for defendant, and the requested instructions follow- ed, but were not signed at the end thereof by defendant or his counsel, the instructions were sufficiently signed within the statute requiring all instructions to be numbered con- secutively, and signed by the par- ty or his counsel. City of Garrett V. Winterich (Ind. App.) 84 N. E. 1006. 8 Ind. Weigand v. State, 99 N. B. 999, 178 Ind. 623 ; HaWich v. Univer- 865 BEQUESTS OR PRAYERS FOR INSTRUCTIONS § 485 versal.'^ In one jurisdiction the practice of the signing by attor- neys of their requests is not commended,''* although the fact of such signing is not reversible error.'* § 483. Submission of requests to opposing counsel In some jurisdictions it is proper for the court to permit requests by a party to be examined by his adversary before their submis- sion to the jury,'* it being said that ordinary courtesy would seem to suggest the propriety of such submission,'^ and that such a practice is to be commended, as enabling the court to secure the views of both sides with respect to the issues involved, and there- by assist him in correctly expounding the law thereon,'* and in some jurisdictions there are positive requirements, under rules of court or otherwise, that such requests shall be submitted to the opposing counsel." In one jurisdiction, under such a statutory provision, it is deemed the duty of the court, and not of counsel, to submit special charges to opposing counsel.'* § 484. Filing requests In some jurisdictions there is a requirement that a special charge requested by a party should be filed before it is read to the jury.'* D. Necessity op Written Requests §485. Statement of rule The general rule is that requests for instructions should be in writing,*" the rule being usually embodied in statutory form," and 71 Orman v. Mannix, 17 Colo. 564, Riverside Bridge Co., 73 S. E. 942, 70 30 P. 1037, 17 L. R. A. 602, 31 Am. St. W. Va. 374. Rep. 340. I» Indiana it seems that a party, 72 State V. McDonald 70 P. 724, 27 by taking certain steps may secure Mont. 230. tlie right to an examination of the 73 Thornton-Thomas Mercantile Co. requests of his adversary before ar- V. Bretherton, 80 P. 10, 32 Mont. 80. gument. Walker v. Johnson, 6 Ind. 74 Alabama G. S. R. Co. v. Arnold, App. 600, 33 N. B. 267, 34 N. B. 100. 80 Ala. 600, 2 So. 337. ''^ Shipley v. Missouri, K. & T. Ry. 7B Cooper v. Altoona Concrete Con- Co. of Texas, 217 S. W. 137, 110 Tex. struction & Supply Co., 53 Pa. Super. 194, reversing judgment (Civ. App.) Ct 141 199 S. W. 661. 7 8 Houston & T. C. B. Co. v. Tur- 7 9 Texas & P. By. Co. v. Thorp ner 78 S. W. 712, 34 Tex. Civ. App. (Tex. Civ. App.) 198 S. W. 335. 397 80 Ala. Oldacre v. State, 72 So. 7 7 Boehl V. Baasen, 8 Minn. 26 (Gil. 303, 196 Ala. 690; Martin v. State, 56 9)- Lampe v. United Rys. Co. of St. So. 3, 1 Ala. App. 215; Stallworth v. Louis, 160 S. W. 899, 177 Mo. App. State, 46 So. 518, 155 Ala. 14. 652; Haines v. StaufCer, 13 Pa. (1 Ga. Dumas v. J. W. Stafford & Harris) 541, 53 Am. Dec. 493; Mur- Son, 95 S. E. 1009, 22 Ga. App. 365; phv V. Chicago, M. & St. P. Ry. Co., — — — ; 120 P. 525, 66 Wash. 663; Jones v. " See note 81 on following page. Inst. TO Jubies — 55 § 485 INSTRUCTIONS TO JURIES 866 whetlier so or not it being regarded as the better practice to re- Sutton V. State, 88 S. E. 122, 587, 17 Ga. App. 713; Garrison v. State, 86 S. E. 743, 17 Ga. App. 314; Lenox Drug Co. V. New England Jewelry Co., 85 S. E. 681, 16 Ga. App. 476; Tolbert v. State, 85 S. E. 267, 10 Ga. App. 311; Jones v. State, 83 S. E. 1099, 15 Ga. App. 641 ; Bragg v. State, S3 S. E. 274, 15 Ga. App. 368 ; Shrop- shire V. State, 83 S. E. 152, 15 Ga. App. 845; Saunders v. State, 83 S. E. 148, 15 Ga. App. 344; Hart v. State, 82 S. E. 164, 14 Ga. App. 714 ; Hightower v. State, 80 S. E. 684, 14 Ga. App. 246 ; Dent v. State, 80 S. E. 548, 14 Ga. App. 270; Walton v. State, 77 S. E. 891, 12 Ga. App.. 551 ; Wash- ington V. State, 75 S. E. 253, 138 Ga. 370; Greene v. State, 74 S. E. 1101, 11 Ga. App. 257 ; Hartfelder & Coch- ran V. Clark, 73 S. E. 608, 10 Ga. App. 422; Alford v. State, 73 S. E. 375, 137 Ga. 458; Fuller v. State, 72 S. E. 515, 10 Ga. App. 34; Suggs v. State, 72 S. E. 287, 9 Ga. App. 830; Maddox v. State, 71 S. E. 498, 9 Ga. App. 448; Hunter v. State, 70 S. E. 643, 136 Ga. 103; Renfroe v. State, 70 S. E. 70, 8 Ga. ApiS. 676 ; Billings V. State, 70 S. B. 36, 8 Ga. App. 672 ; Allen V. State, &7 S. B. 1038, 134 Ga. 380; McLendon v. State, 67 S. E. 846, 7 Ga. App. 687 ; Turner v. State, 63 S. E. 294, 131 Ga. 761; Roberson V. State, 62 S. E. 539, 4 Ga. App. 833 ; Coleman v. State, 62 S. B. 487, 4 Ga. App. 786; Strickland v. State, 61 S. E. 841, 4 Ga. App. 445; Millen & S. W. R. Co. V. Allen, 61 S. E. 541, 130 Ga. 656 ; Jones v. State, 60 S. B. 840, 130 Ga. 274; Freeney v. State, 59 S. E. 788, 129 Ga. '*r59 ; Lewis v. State, 59 S. E. 782, 129 Ga. 731 ; Wil- ey V. State, 59 S. E. 438, 3 Ga. App. 120; Western & A. R. Co. v. Tate, 59 S. E. 266, 129 Ga. 526; Sasser v. State, 59 S. B. 255, 129 Ga. 541 ; Ta- bor V. Macon Ry. & Light Co., 59 S. E. 225, 129 Ga. 417 ; Wholesale Mer- cantile Co. V. Jackson, 59 S. E. 106, 2 Ga. App. 776; Joiner v. State, 58 S. E. 859, 129 Ga. 295; Robberson v. State, 58 S. E. 544, 2 Ga. App. 417; Carter v. State, 58 S. E. 532, 2 Ga. App. 254; Handley v. State,' 57 S. E. 236, 128 Ga. 24 ; Cress v. State, 55 S. B. 491, 126 Ga. 564 ; Southern Ry. Co. T. Brown, 54 S. E. 911, 126 Ga. 1 ; Moody v. State, 48 S. E. 262, 1 Ga. App. 772. Kan. St. Louis & S. F. R. Co. v. Noland, 90 P. 273, 75 Kan. 691. Ky. Ross V. Kohler, 174 S. W. 36, 163 Ky. 583, L. R. A. 1915D, 621. Mass. Bingham v. Monroe, 99 N. E. 165, 212 Mass. 455. N. C. Biggs V. Gurganus, 67 S. E. 500, 152 N. C. 173. Okl. WilUams v. State, 151 P. 900, 12 Okl. Cr. 39 ; Livingston v. Chicago, R. I. & P. Ry. Co., 139 P. 260, 41 Okl. 505; Chicago, R. I. & P. Ry. Co. v. Radford, 129 P. 834, 36 Okl. 657; Robinson v. Territory, 85 P. 451, 16 Okl. 241, reversed Robinson v. Ter- ritory of Oklahoma 148 F. 830, 78 C. G. A. 520. S, C. Salley v. Cox, 77 S. E. 933, 94 S. C. 216, 46 L. R. A. (N. S.) 53, Ann. Cas. 1915A, 1111. Tex. Ingram v. State, 182 S. W. 290, 78 Tex. Cr. R. 559; Mooney v. State, 176 S. W. 52, 76 Tex. Cr. R. 539; Schoennerstedt v. State, 117 S. W. 829, 55 Tex. Cr. R. 638 ; De Lam V. State, 95 S. W. 532, 50 Tex. Cr. R. 4; Osborne v. State (Tex. Cr. App.) 56 S. W. 53 ; Jones v. Thurmond's Heirs, 5 Tex. 318. Wis. McCummins v. State, 112 N. W. 25. 132 Wis. 236. SI Ala. Davis v. Brandon, 75 So. 908, 200 Ala. 160. Colo. Taylor v. Barnett, 90 P. 74, 39 Colo. 469. Ga. Monroe County v. Driskell, 60 S. E. 293, 3 Ga. App. 583. 111. Harding v. Sandy, 43 111. App. 442. ^ Ind. Ft. Wayne & W. V. Traction Co. V. dinger, 90 N. E. 652, 46 Ind. App. 733 ; Louisville & S. I. Traction Co. v. Korbe, 90 N. E. 483. Ky. Charles Taylor Sons Co. v. Hunt, 173 S. W. 333, 163 Ky. 120; Louisville & N. R. Co. v. Woodford, 153 S. W. 722, 152 Ky. 398, rehearing denied 154 S. W. 1083, 153 Ky. 185; Bell's Adm'r v. Louisville Ry. Co, 146 S. W. 383, 148 Ky. 189. Mo. Marion v. St. Louis & S. F. 867 REQUESTS OE PRAYERS FOR INSTRUCTIONS §485 duce such requests to writing,** and requests for instructions not in compliance with such rule may be refused.** The above rule applies to criminal as well as civil cases.** Under a statute providing that each instruction asked by counsel shall be given without change or modification, or refused in full, it has been held that an objection to the failure of the court to give an instruction not reduced to writing, nor even to words, but R. Co., 101 S. W. 688, 124 Mo. App. 445. Mont. Helena & L. Smelting & Reduction Co. v. Lynch, 65 P. 919, 25 Mont. 497. N. D. Carr v. Minneapolis, St. P. & S. S. M. Ry. Co., 112 N. W. 972, 16 N. D. 217. 82 Leonhardt v. Green, 96 A. 1096, 251 Pa. 579 ; Virginia Cedar Works v. Dalea, 64 S. E. 41, 109 Va. 333 ; Smith V. State, 101 P. 847, 17 Wyo. 481. 8 3 TJ. S. (C. C. A. Ga.) Southern Ry. Co. V. Shaw, 86 F. 865, 81 C. C. A. 70; (O. C. Pa.) Keystone Bank v. Safety Banking & Trust Co., 179 F. 727. Ala. Ricketts v. Birmingham St. Ry. Co., 85 Ala. 600, 5 So. 353 ; South & N. A. R. Co. V. Seale, 59 Ala. 608. Conn. Bogudsky v. Backes, 76 A. 540, 83 Conn. 208. D. C. Washington Herald Co.' v. Berry, 41 App. D. C. 322. Ga. Henley v. Toole, 92 S. E. 760, 20 Ga. App. 146 ; Browder-Manget Co. V. West End Bank, 85 S. E. 881, 143 Ga. 736; Macon, D. & S. R. Co. V. Holsey, 70 S. E. 354, 9 Ga. App. 100 ; Mallary Bros. & Co. v. Moon, 61 S. E. 401, 130 Ga. 591 ; Brown v. McBride, 58 S. E. 702, 129 Ga. 92. 111. Chicago & A. R. Co. v. Kel- ly, 75 111. App. 490; Hartford Deposit Co. V. Pederson, 67 111. App. 142, af- firmed 48 N. B. 30, 168 111. 224 ; Swift & Co. V. Fue, 66 111. App. 651, affirm- ed 47 N. E. 761, 167 111. 443. Ind. Molt V. Hoover, 81 N. E. 221. Kan. Cooper V. Harvey, 94 P. 213, 77 Kan. 854 ; Smith v. Tost, 59 P. 379, 10 Kan. App. 580; Tays v. Carr, 37 Kan. 141, 14 P. 456. Minn. Mobile Trust & Trading Co. V. Potter, 81 N. W. 392, 78 Minn. 487. N. C. I/inker v. Linker, 83 S. E. 736, 167 N. C. 651 ; Marshall v. Stine, 112 N. O. 697, 17 S. E. 495. Wis. Du Gate v. Town of Brigh- ton, 114 N. W. 103, 133 Wis. 628; Hardt v. Chicago, M. & St. P. Ry. Co., 110 N. W. 427, 130 Wis. 512. 84 Ala. Winford v. State, 75 So. 819, 16 Ala. App. 143 ; Foote v. State, 75 So. 728, 16 Ala. App. 136 ; Fuller V. State, 97 Ala. 27, 12 So. 392 ; King V. State, 77 Ala. 94. Fla. Irvin v. State, 19 Fla. 872. Ga. Crawford v. State, 54 S. E. 695, 125 Ga. 793 ; Williams v. State, 54 S. E. 186, 125 Ga. 235; Levan v. State, 54 S. E. 173, 125 Ga. 278 ; Lew- is V. State, 53 S. E. 816, 125 Ga. 48; Campbell v. State, 52 S. E. 914, 124. Ga. 432 ; Patterson v. State, 52 S. E. 534, 124 Ga. 408 ; Jenkins v. State, 51 S. E. 598, 123 Ga. 523-; Id., 51 S. E. 386, 123 Ga. 523; Seale v. State, 49 S. E. 740, 121 Ga. 741, dismissed 26 S. Ot. 763, 201 U. S. 642, 50 L. Ed. 902; Bro\vn v. State, 28 Ga. 199. La. State v. Bogain, 12 La. Ann. 264. N. C. State V. Wilkes, 87 S. E. 48, 170 N. O. 735; State v. Horton, 100 N. C. 443, 6 S. E. 238, 6 Am. St. Rep. 613. S. C. State V. Owens, 60 S. E. 305, 79 S. C. 125; State v. Davis, 27 S. E. 905, 50 S. C. 405, 62 Am. St. Rep. 837. Tex. Garrison v. State, 114 S. W. 128, 54 Tex. Cr. R. 600 ; Hull v. State (Cr. App.) 80 S. W. 380 ; Hankins v. State (Cr. App.) 75 S. W. 787; Gar- ner V. State (Cr. App.) 70 S. W. 213; Shaw V. State (Cr. App.) 33 S. W. 1083; Waechter v. State, 34 Tex. Cr. R. 297. 30 S. W. 444 ; Sparks v. State, 23 Tex. App. 447, 5 S. W. 135 ; Hobbs V. State, 7 Tex. App. 117. § 486 INSTRUCTIONS TO JURIES 868 of which the general idea is suggested orally, will not be con- sidered.*^ § 486. Waiver of requirements of rule Ordinarily, however, the trial court may waive the requirements of the above rule,** and it has been held that it may be error to refuse an oral request presented in response to the question of the judge as to whether he has overlooked anything, the view be- ing taken that, if a written request is desired in such case, time should be given to counsel to put it in writing.*' E. Prbsbntation otf Requests to Court § 487. Necessary formalities connected with presenting requests to court To make available on appeal the failure of the trial court to give a requested instruction, it must be called to its personal attention. It is not sufficient to merely place the signed request on the desk of the judge,** and a statement to the judge out of the courtroom will not be sufficient to put the court in error in not giving an in- struction.** It has been held, however, that a rule of court pro- viding that counsel shall read and submit to the court requests • to charge is for the benefit of the court, and that, where the judge does not require counsel to read the requests submitted, his failure to do so will not preclude him from asking for a new trial because of the error of the judge in inadvertently failing to pass on the charges.*" § 488. Argument of requests While it is not necessary in some jurisdictions that counsel,, in requesting an instruction, should state his reasons therefor,*^ the rulfe is otherwise in other jurisdictions.®^ On the other hand, a party has a right to be heard in a reasonable manner in support of his requests to charge, if he makes known to the court his wish . to be thus heard,** and a party should be given the right to pre- ss Hacker v. Heiney, 8T N. W. 249, W. 925, affirmed on rehearing 115 N. Ill Wis. 313. W. 32, 139 Iowa, 292. 86 Willis V. Western Union Tel. Co., "" Herskovitz v. Baird, 37 S. E. 922, 48 S. E. 538, 69 ' S. C. 531, 104 Am. ^9 S. C. 307. St. Rep. 828, 2 Ann. Gas. 52. " Chicago, I. & L. Ey. Co. v. Mar- 8^ Harnau v. Haight, 155 N. W. 563, *'°',^4f " ^V^U/ Jf ^J'^ ^p^ 46a ififlMiphfiOO «2 Wilson V. State, 189 S. W. lOTl, 1S9 Mien. bOO. gQ rpgx. Or. R. 266. 8 s Bailey v. Hartman (Tex. Civ. saWildey v. Crane. 36 N. W. 734, App.) 85 S. W. 829. 69 Mich. 17. soMcDermott v. Mahoney, 106 N. In Louisiana, however, It has been 869 REQUESTS OR PRAYERS FOR INSTRUCTIONS § 489 sent arguments as to the propriety of granting requests presented by his adversary.** Accordingly it is not improper for the court, when an instruc- tion is asked by a party, to ask the counsel for the adverse party as to his view of the propriety of such instruction.*^ It is within the discretion of the court whether the jury shall be present when the requests are being discussed and considered,** and accordingly the court may require the jury to retire during the argument of requests for instructions ; *' constitutional and statutory provisions that the parties or their counsel may address the court and jury on the law and the facts of the case, and that in criminal cases a defendant shall have a speedy public trial by an impartial jury, being held not to exclude the exercise of such power.** F. Passing on Requests and Disposition Thereof § 489. General considerations It is the legal right of a party presenting written requests for instructions to have the court consider and rule upon them.** Ac- cordingly it is bad practice for the court to read to the jury re- quested instructions and not determine until thereafter whether they should be given or not,^ and a party is entitled to a distinct and responsive answer to his requests, if they are properly drawn and present questions fairly arising, which can be answered by a simple affirmance or refusal.* However, language of the court in answer to a request may con- held that the fact that counsel for i Revilla Fish Products Co. v. accused was not permitted to read American-Hawaiian S. S. Co., 137 P. and discuss requests to charge, but 337, 77 Wash. 49. was required to hand them up, in 2 N. O. George v. Smith, 51 N. C. writing, to the judge, is no ground of 273. reversal, for it does not infringe any Pa. Sommer v. Gilmore, 160 Pa. right. State v. Hill, 28 La. Ann. 311. 129, 28 A. 654 ; Hofeman v. Clough, »4 Kenny v. Inhabitants of Ipswich, 124 Pa. 505, 17 A. 19, 23 Wkly. Notes 178 Mass. 368, 59 N. E. 1007. Cas. 399 ; Kraft v. Smith, 117 Pa. 183, 8 5 SulUvan v. McManus (Sup.) 45 11 A. 370<; Swank v. Phillips, 113 Pa. N. Y. S. 1079, 19 App. Div. 167. 482, 6 A. 450 ; Hood v. Hood, 2 Grant «8 Cooper V. Altoona Concrete Con- Cas. 229; Hamilton v. Menor, 2 Serg. struction & Supply Co., 53 Pa. Super. & R. 70 ; Smith v. Thompson, 2 Serg. Ct. 141. & R. 49; Powers v. McFerran, 2 87 Casey V. State, 37 Ark. 67. Serg. & R. 44; Perry v, Pittsburg 98 State V. Coella, 3 Wash. St. 99, Eys. Co., 55 Pa. Super. Ct. 289; Repp 28 P. 28. V. Reynolds, 53 Pa. Super. Ct. 567. 99'Keitt V. Spencer, 19 Fla. 748; Action of court held not in. com- Moseley v. Johnson, 56 S. E. 922, 144 pliance witH rule. It is not a prop- N. C. 257, 274 ; Jones v. Seaboard Air er disposition of a long series of re- Line Ry. Co., 45 S. E. 188, 67 S. O. quested instructions to charge: "So 181. fflr as the points are in accordance § 489 INSTRUCTIONS TO" JURIES 870 stitute an affirmance or refusal of it, although not formally so,' and the court need not specifically affirm or refuse the points cov- ered by the general charge.* The court is not required to read and specifically answer in the presence of the jury points presented for instructions, as it is held that such practice gives practically no as- sistance to the jury.^ The failure of the court to answer a request is equivalent to a refusal of it,® and instructions tendered by k party are regarded 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 opin- ion we expressed in the general charge, they are refused." People's Sav. Bank v. Denig, 131 Pa. 241, 18 A. 1083, 25 Wkly. Notes Cas. 293; Duncan v. Sherman, 121 Pa. 520, 15 A. 565. Where a party on the trial of a case presents certain hypotheti- cal facts to the court which there is evidence to sustain, and requests the instruction of the court upon the - effect of those facts if believed by the jury, it is error for the court to charge simply that the question is one of fact for the jury, and that its weight is entirely for them. Kraft V. Smith, 117 Pa. 183, 11 A. 370. Where, instead of giving instructions requested by defendant, the court told the jury that they might use them "so far as the same are practicable in arriving at a verdict," it was held that this action was erroneous, as leaving to the jury to decide whether they embodied correct proposition of law. Duthie v. Town of Washburn, 87 Wis. 231, 58 N. W. 380. 3 Cremore v. Huber (Sup.) 45 N. Y. S. 947, 18 App. Div. 231 ; Cosgrove v. Cummings, 42 A. 881, 190 Pa. 525; Hutchison V. Town of Summerville, 45 S. E. 8, 66 S. C. 442. Iianguage of court held to con- stitute afBrmance of request. Where plaintiff, at the close of the main charge, requested an instruction, and the court replied, "Yes; I will not touch that any more than I have," the language of the court should be construed as in effect giving the in- struction, and not as a refusal so to do. Buckley v. Westchester Lighting Co., 76 N. E. 1090, 183 N. Y. 506, affirming judgment 87 N. Y. S. 763, 93 App. Div. 436. Matters not constituting abson lute refusal of request. A state- ment by the trial judge that he would not read to the jury defendant's re- quests, but would pass on them in Ms general charge, and cover all requests which were correct, was not an ab- solute refusal to charge a request. Martin v. Columbia Electric St. Ky., Light & Power Co., 66 S. E. 993, 84 S. O. 568. Matters amounting to refusal of requpst. An instruction marked given which was not actually read to the jury, and which was not given to them upon the submission of the cause, is to be considered as refused. Craw v. Chicago City By. Co., 159 111. App. 100. 4 Baltimore & O. E. Co. v. Friel (C. C. A. Pa.) 77 F. 120, 23 C. C. A. 77. 6 Zacheyfia v. John Lang Paper Co. (C. C. Pa.) 170 F. 617. 6 Emerson v. Hogg (C. C. N. Y.) Fed. Cas. No. 4,440, 2 Blatchf. 1, 1 Fish. Pat. Eep. 77; Bartle v. Saun- ders, 2 Grant Cas. (Pa.) 199; Ar- buckle V. Thompson, 37 Pa. (1 Wright) 170. Eifect of postponing considera- tion of requests. The act of a pre- siding judge in deferring the consid- eration of requests for rulings pre- sented during the closing argument of counsel, without their having been shown to the opposing counsel, until after the charge to the jury, is not a refusal to give the instructions re- quested, and is no ground for excep- tion, where no exception is taken to the charge as given, and where It does not appear that the rulings were not given in substance as requested. 871 REQUESTS OR PRAYERS FOR INSTRUCTIONS 489 as having been refused where they are given as modified by the court; the modified instructions being considered as given by the court on its own motion.' It is cause for reversal to read an instruction to the jury as one requested by one of the parties in language substantially different from that requested, although the instruction as so modified may correctly state the law.* A party requesting a number of instructions on the same issue or principle of law, one of which is given, cannot complain of the refusal of the others,^ or that the one most favorable to him or the most important is not given.^* Requested charges, containing correct propositions of law and applicable to the pleadings and the evidence, should be given, if the subject-matter of Such charges is not covered by any other instruction.^^ The court may reconsider a determination to give a request, on subsequently becoming satisfied that it is erroneous.-'* Bonino v. Caledonlo, 144 Mass. 299, 11 N. B. 98. ■ 7 Baxter v. Baxter, 92 N. E. 881, 1039, 46 Ind. App. 514 ; "Wea Tp., Tip- pecanoe County, V. Cloyd, 91 N. HJ. 959, 46 Ind. App. 49 ; Exchange Bank V. Cooper, 40 Mo. 169; Meyer v. Pa- cific B. R., Id. 151. Compare Flower V. Beveridge, 161 lU. 53, 43 N. E. 722, affirming 58 lU. App. 431; Ohandler V. Prince, 109 N. E. 374, 221 Mass. 495. 8 Eood V. Dutcher, 120 N., W. 772, 23 S. D. 70, 20 Ann. Cas. 480. 9 111. A. H. Nilson Machine Co. v. Kurtz Action Co., 186 111. App. 424. Tex. St. Louis Southwestern Ry. Co. of Texas v. Aston (Civ. App.) 179 S W. 1128 ; Fidelity Phenix Fire Ins. Co. V. Sadau (Civ. App.) 178 S. W. 559 ; Kansas City, M. & O. Ry. Co. of Texas v. Beckham (Civ. App.) 152 S. W 228; Chicago, R. I. & G. Ry. Co. V Green (Civ. App.) 135 S. W. 1031; Alamo Dressed Beef Co. v. Teargan, 123 S. W. 721, 58 Tex. Civ. App. 92 ; International & G. N. R. Co. v. Ford (Civ. App.) 118 S. W. 1137; Lyon v. Bedgood, 117 S. W. 897, 54 Tex. Civ. App. 19; Missouri, K. & T. Ry. Co. of Texas v. Morgan, 108 S. W. 724, 49 Tex. Civ. App. 212; St. Louis Southwestern Ry. Co. of Texas v. Haney (Civ. App.) 94 S. W. 386. 10 111. Clifford V. Pioneer Fire- proofing Co., 83 N. E. 448, 232 111. 150; East St. Louis & S. Ry. Co. v. Zink, 82 N. E. 283, 229 111. 180; City of Evanston v. Richards, 79 N. E.~ 673, 224 111. 444 ; National Enameling & Stamping Co. v. McCorkle, 76 N. E. 843, 219 III. 557; Indiana, I. & I. R. Co. V. Otstot, 72 N. E. 387, 212 111. 429, affirming judgment 113 111. App. 37 ; City of Salem v. Webster, 95 111. App. 120, judgment affirmed 61 N. E. 323, 192 111. 369. Tex. Van Zandt-Moore Iron Works V. Axtell, 126 S. W. 930, 58 Tex. Civ. App. 353 ; Waggoner v. Sneed, 118 S. W. 547, 53 Tex. Civ. App. 278. -11 N. Y. Santiago v. John E. Walsh Stevedore Co., 137 N. Y. S. 611, 152 App. Div. 697. Okl. Dunlap & Taylor v. Flowers, 96 P. 643, 21 Okl. 600. Tex. St. Louis Southwestern Ry. Co. of Texas v. Neef (Civ. App.) 138 S. W. 1168; Bishop v. Riddle, 113 S. W. 151, 51 Tex. Civ. App. 317 ; Love V. Perry (Civ. App.) Ill S. W. 203. 12 Louisville, N. A. & 0. Ry. Co. v. Hubbard; 116 Ind. 193, 18 N. E. 611. § 490 INSTRUCTIONS TO JURIES 872 § 490. Time of passing on requests A party has no absolute right to have the instructions requested by him reserved until after those proposed by his adversary have been passed upon.^* It will be error to grant a request of one party during the argument of counsel for the other side, if thereby coun- sel is deprived of the opportunity to refer to the same,-^* and in one jurisdiction, under statutory provisions, a party has the absolute right to have such correct written instructions as may be requested given to the jury before the argument.-'^ In another jurisdiction the court may, before giving its general charge, read to the jury and pass on requested instructions.^® § 491. Manner of giving requested instructions The rule is in some jurisdictions that the court should, on giving requested instructions, read them to the jury before they retire," and that if it is clearly shown that instructions asked on behalf of a party were handed to the jury without reading, thus placing them under a cloud, a verdict against such party will be set aside.-'* It is not a sufficient compliance with the above rule 'that instruc- tions asked by counsel are read by him under direction of the court,^* although a new trial will not be granted merely because counsel is allowed to read his requests to charge to the jury, where the writing is somewhat illegible and it is apparent that no harm has resulted.^" 13 Shaw V. TownsMp of Saline, 71 i? Alabama G. S. E. Co. v. Arnold, N. W. 642, 113 Mich. 342. 80 Ala. 600, 2 So. 337; Leaptrot v. 14 King V. State, 83 So. 164, 121 Robertson, 44 Ga. 46. Miss. 230. Reading mot required unless re- 1 5 Village of Monroeville v. Root, quested. Requested Instructions are 54 Ohio St. 523, 44 N. E. 237; Lutter- S'Ufficiently given, where they are in- beck V. Toledo Consol. St. Ry. Co., 5 dorsed "Given" and handed to the ju- O. C. D. 141. ry, with a statement that they are Waiver of failure to give re- given at the request of defendant, if quest before argument. Where defendant does not request that they certain requests to charge are submit- be read to the jury. Boyd v. State, ted ijo the court prior to the argument, 45 So. 634, 154 Ala. 9. with the request that the same be isVeneman v. McCurtain, 33 Neb. made part of the charge of the court, 643, 50 N. W. 955 ; MfcDuffie v. Bent- but no request is made that they be ley, 27 Neb. 380, 43 N. W. 123. given to the Jury before the argument is O'Dell v. GofC, 117 N. W. 59, 153 of counsel, the fact that the court did Mich. 643 ; State v. Missio, 68 S. W. pass upon them, and give most of 216, 105 Tenn. 218. them in his final charge to the jury, 20 gow v. Charlotte, C. & A. R. Co., and not before argument of counsel 68 Ga. 54. is not error. City of Toledo v. Hig- Failure to repeat requests read gins, 12 Ohio Cir. Ct. R. 646, 7 O. O. ty counsel. A new trial will not be I>. 29. granted because the presiding judge 16 Walton V. Hinnau, 146 Pa. 396, did not repeat formally to the jury 23 A. 342. requests to charge read by counsel, 873 REQUESTS OE PEAYERS FOE INSTRUCTIONS §491 The court should not only read requests given to the jury, but should distinctly inform them that such requests are correct prop- ositions of law, to be considered along with the other instructions given in the case.*^ However, while a party is entitled to an af- firmance of a request which clearly and adequately expresses a relevant legal principle, no set formula is required to indicate that such request has been granted.** The remark of the court, on be- ing requested to give an instruction, that he has already so charged, is equivalent to a charge as requested,** and it is not necessary for the trial judge to affirm requests to charge separately, but he may read them through and affirm them altogether."* Where the court grants an oral request by the defendant in a criminal case, he can- and approved by the court as read; no request having been made at the time. East Tennessee, V. & G. R. C!o. V. Fain, 80 Tenn. (12 Lea) 35. 21 Ga. Blandon v. State, 65 S. B. 842, 6 Ga. App. T82; Georgia Rail- road & Banking Co. v. Flowers, 33 S. E. 874, 108 Ga. 795 ; Colquitt v. Thom- as, 8 Ga. 258. N. J. Olsofrom v. North Jersey St. Ry. Co. (Sup.) 79 A. 1039, 81 N. J. Law, 321 ; Roe v. State, 45 TJ. J. Law (16 Vroom) 49. Tex. Burnett v. State, 79 S. W. 550. 46 Tex. Cr. R. 116. Action hy conrt held not olmox- ions to mle. Where the court was renuested to give the jury a certain written instruction, and the court read slowly the requested instruction to the jury, and said, "I give you that in charge, as the law of the case," it is a proper manner of charging. Fea- gan V. Cureton, 19 Ga. 404. Where the court, before giving a requested charge, said, "Counsel have handed me some requests as stating proposi- tions of law by which you should be guided in determining your verdict," a contention that the court failed to say that the charge was correct, whereup- on the jury failed to understand that the requests read were given, is not well taken. Noble v. Bessemer S. S. Co., 86 N. W. 520, 127 Mich. 103, 54 L. R. A. 456, 89 Am. St. Rep. 461. Harmless error. Where several requests to charge were handed to the judge, and by him read to the jury, without expressly giving the same In charge, the omission to distinctly inform the jury that such requests were correct propositions of law, to be considered along with the other instructions given in the case, was not reversible error where all the requests save one were covered by the general charge, and, after reading the gen- eral charge, the judge used with ref- erence thereto language plainly indi- cating his intention to give it in charge with a qualification whch was itself proper. Georgia Railroad & Banking Co. v. Flowers, 33 S. E. 874, 108 Ga. 795. 2 2 Ark. Hale & Scott v. St. Louis & S. F. R. Co., 193 S. W. 790, 128 Ark. 203. N. Y. People V. Mongano, 1 N. T. Cr. R. 411. Pa. Borough of West Bellevue v. Huddleson, 16 A. 764, 23 Wkly. Notes Cas. 240; Brenneman v. P. H. Glat- felter Co., 61 Pa. Super. Ct. 64 ; Suc- eop V. Baltimore & O. R. Co., 58 Pa. Super. Ot. 246. S. C. Autrey v. Bell, 103 S. E. 749, 114 S. C. 370; State v. Stewart, 26 g. C. 125, 1 S. E. 408. 2 3 Schechwitz v. New York City Ry. Co. (Sup.) 103 N. T. S. 781 ; State v. Shapiro, 69 A. 340, 29 R. I. 133 ; Cald- well V. Duncan, 69 S. E. 660, 87 S. O. 331. 2i Commonwealth v. Cleary, 135 Pa. 64, 19 A. 1017, 26 Wkly. Notes Cas. 137, 8 L. R. A. 301. § 491 INSTRUCTIONS TO JURIES 874 not complain of the particular language used by the court in com- plying with the request.^^ It is not improper for the court, in giving a requested instruc- tion, to state that it is probably abstract,^® or that it is given be- cause no objection has been made to it,^' or to suggest that the plaintiff may so amend his complaint, if he wishes, as to obviate the effect of a charge given at the request of the defendant ; ** but it is improper, after giving an instruction in the very terms of the request for it, to weaken its force by sarcastic comment, so as to leave the jury iii doubt whether the instrQction has been given or refused.^® So it is -error for the court to hand to the jury the requests sub- mitted by counsel, with an admonition to follow them so far as they conform to other parts of the charge, the duty of discrim- inating as to such conformity being thus imposed on the jury,*' and it is equally improper, on giving a requested instruction, to tell the jury that they will "please be governed thereby," as this is calculated to influence the jury.*"- The court is not required to fur- nish the jury with reasons for instructions given.** Informing the jury that certain instructions are given at the re- quest of a particular party,** or the failure to make such a state- 2 5"Autrey v. State, 100 S. E. 782, so Lang v. State, 84 Tenn. (16 Lea) 24 Ga. App. 414. 433, 1 S. W. 318. 26 Morrow v. Parkman, 14 Ala. 769. ^^ Bradford v. State, 25 Tex. App. 2 7 State V. Musick, 101 Mo. 260, 14 '^^^' ^ ^- W. 46. S. W 212 "^ King Solomon Tunnel Co. v. Min- 2 8 Grimm's Adm'rs v. Crawford, 29 j,"^ ^,°-l}^l\^^h ^S. C»lo- ^PP- 528 : _4ja. 623 Charlotte Harbor & N. Ry. Co. v. Tm- 2; Horton V.Williams, 21 Minn. 187. ^ngSg N. w:,S'm''lZT,,l Remark that court did not see ss U. S. (O. C. A. Neb) Colorado applicability of request. Wbere, Yule Marble Co. v. Collins, 230 F. 78, on an indictment for murder in the 144 c. C. A. 376. first degree, accused requested, the Cal. Wilmarth v. Pacific Mut Life court to charge as to different grades ins. Co. of California, 143 P 780, of manslaughter, to which the court igg Cal. 536, Ann. Cas. 1915B 1120- replied that it thought that it would People v. Wilder, 66 P. 228, 134 Cal! be better to so charge rather than to 182. deny the request, although it did not Ga. Dotson v. State, 71 g. B 164 see the applicability of it, it was held 136 Ga. 243. ' ' ' that, if the evidence entitled the ac- ill. Illinois Cent. E. Co v Lar- cused to have the question as to man- son, 152 111. 326, 38 N. E. 784 slaughter submitted to the jury, the Iowa. Scott v. Chicago M & St court's charge was erroneous, as the P. Ry. Co., 68 Iowa, 360, '24 N. W jury probably would not have consid- 584. ered the case in connection with the Neb. Clawson v. State 148 N W crime of manslaughter after such re- 524, 96 Neb. 499. " ' mark by the court. People v. Eego, Tes. Lott v. State, 146 S W 544 36 Kun, 129. 66 Tex. Or. R. 152; St. Louis South' S75 REQUESTS OR PRAYERS FOR INSTRUCTIONS § 492 ment,** will not ordinarily constitute reversible error, although the practice of making such a statement is not commended.*^ and if by- such an announcement anything may be added to or detracted from the force of the requested instruction, it should not be made.** The better practice is to give all proper requests as emanating from the court itself.*' It is not improper to instruct that special charges given at the request of a party are entitled to equal weight with the main charge.** The order in which instructions are given is usually not material.** Granted requests, however, should, if possible, be in- corporated in the charge in connection with the subject of which they form a part; if this cannot be done, the orderly place for them is after the court has completed the body of the charge and not at its beginning.*" In a criminal case, the court need not give instructions requested by the defendant in a single group, but may mingle them with the other instructions given, as a logical and or- derly arrangement of the instructions as a whole may require.*^ An erroneous refusal of a requested instruction may be cured by subsequently recalling the jury and giving the instruction.*^ § 492. Comments and explanations by court on refusing requests On refusing requests for instructions, the court is not required to read them to the jury, together with his ruling.** If the trial judge reads only such points as he affirms, and files those which western Ey. Co. of Texas v. Cleland, *o Gannon v. Sisk, 112 A. 697, 95 110 S. W. 122, 50 Tex. Civ. App. 499. Conn. 6.39. Wash. State v. Poyner, 107 P. *i Young v. People, 61 N. E. 1104, 181, 57 Wash. 489. 193 111. 236; Crowell v. People, 60 ■Wis. Meyer v. Milwaukee Electric ' N. B. 872, 190 111. 508 ; Harrington v. Ey. & Light Co., 93 N. W. 6, 116 Wis. People, 90 111. App. 456. 336. 42ghepperd v. State, 94 Ala. 102, 34 Gutzman v. Clancy, 90 N. W. ^q g^ ggS ; Booker v. State, 76 Ala. 1081, 114 Wis. 589, 58 L E. A. 744. 22 ; People v. Turley, 50 Cal. 469 ; S5 Meyer v. Milwaukee Electric, etc. Eockmore v. State, 93 Ga. 123, 19 S. E. Co., 93 N. W. 6, lie Wis. 336. j; 32 ssDoddv. Moore, 91 Ind. 522. \sTla. Sherman v. State, 17 Pla. 8 7 People V. Bundy, 145 P. 537, 168 888. £fi- 7Jl\ ^^^1%^^- ^^r""' I J: P«- Clay V. Western Maryland E. ?f^' rn ^foi^%J^M' ^""1099 K.' Co., 70 A. 807, 221 Pa. 439; Woeck- 134 111. 401, 25 N. E. 1022; Steven- ^^^' ^ ^^^ ^j^^^^.^ ^^^^ (,„^ 4^ ^ son V. Chicago & N^ ^■^^■2.-' ^ 28, 187 Pa. 206, 43 Wkly. Notes Cas. ^°^^- TiE'i^ J- J^ l^l i%^ ^- 50; Muthersbaugh v. McCabe, 22 Pa. State, 127 N. W 158, 87 Neb. 390. ^^^^ ^t. 587,- Commonwealth v. 8 8 Good ey v. Northern Texas Trac- ^.^^ 3 p^ g ^.^ ^^^ tion Co. (Tex. Civ. App.) 144 S. W. ^^ ^ ^^^ ^ ^^^^^^^^ ^^ ^^^ 89 People V. Holt, 136 P. 501, 22 Cal. 27 S. K 531. 50 S. O. 49. App 697; Colombo v. People, 55 N. Tenn. Foutch v. State, 45 S. W. E. 519, 182 ILL 411. 678, 100 Tenn. 334. § 492 INSTRUCTIONS TO JUEIB8 876 he refuses, with his rulings and exceptions which may be taken, nothing more can be required of him,** and it is considered im- proper to read requests which have been refused in some juris- dictions.*^ Remarks made by the court, on refusing an instruction, calcu- lated to mislead the jury, are ground for reversal;** but, where the legal proposition in controversy is fully elucidated by the court in its general charge, remarks made by it on refusing a requested instruction will not work a reversal, in the absence of a clear showing of prejudicial error.*' Thus an impropriety in in- structing the jury on the court^s own motion as to its reasons for refusing certain instructions will not be ground for reversal, if no prejudice could have resulted therefrom,** and the giving of an ■erroneous reason for the refusal of an instruction which ought not to be given is no cause for reversal.** A doubt expressed by the court on refusing an instruction with respect to a certain phase of it does not amount to an approval of it in other respects, which is prejudicial if the jury are fairly and fully instructed.^ If the court refuses to give a requested charge because it has already been given in another form, the court should so state, if the jury would otherwise be misled.®^ Such a statement is not nec- essary where the jury have no knowledge of refused instructions.®* The rule against the expression of an opinion by the court on issues of fact is not violated by a statement that it declines to give a requested instruction because there is no evidence in the ** Cooper V. Altoona C. C. & S. Co., all these words, leaving them plainly 53 Pa. Super. Ct. 141. visible, and gave it to the jury, it *5 Ransone v. Christian, 56 Ga. 351. was held not error, as giving special *8 Biehler v. Coonce, 9 Mo. 347. prominence to particular evidence. Illustrations of misleading re- Cobb Chocolate Co. v. Knudson, 107 marhs. Where counsel submit re- 111. App. 668, judgment affirmed 69 quests to charge which are correct N. E. 816, 207 111. 452. both as to the facts and law, a ruling *? Lake Shore & M. S. R. Co. v. of the court that such request "has Erie County Sup'rs, 2 N. Y. St. Kep. been sufficiently covered in the gen- 317. eral charge, and is declined" is erro- ^s Pennsylvania Co. v. Frana, 112 neous, as the statement that the point III. 398. was declined has a tendency to mis- 48 Budd v. Brooke, 3 Gill (Md ) 198 lead. McNess v. Sims, 80 A. 866, 231 43 Am. Dec. 321. Pa. 386. BO Coombs v. Kadford, 110 Mich. Matters not constituting error 192, 68 N. W. 123. Yvithin rule. Where the court made oi People v. Williams, 17 CaL 142; certain changes in an instruction, and People v. Ramirez, 13 Cal. 172 ; Pec- wrote upon the margin the sentence, pie v. Hurley, 8 Cal. 390; State v. "Refused as ignoring the specific Ferguson, 9 Nev. 106. proof of specific ord'ers to do the 62 People v. Barthleman, 62 P. 112, work In question, and for other rea- 120 Cal. 7 ; People v. Douglass, 34 P.' ;8ons," and then ran his pen through 490, 100 Cal. 1. 877 REQUESTS OR PRATERS FOR INSTRUCTIONS §493 case to justify it.^* Where a statement by the court of its reasons for refusing a requested instruction shows a misconception of the proposition embodied therein, counsel for the requesting party should explain it and point out the misconception.®* § 493. Noting disposition of requests There are statutory requirements in some jurisdictions that the court shall indicate by memorandum the numbers of requested in- structions given and of those refused, and that such memorandum shall be signed by the judge.-® In other jurisdictions the statute requires the trial judge to indorse on a requested 'instruction what disposition he has made of it, and to sign his name to such nota- tion.®^ 53 Plilsbury V. Sweet, 80 Me. 392, 14 A. 742. 54 GarbaczewsM v. Third Ave. E, Co., 5 App. Div. 186, 39 N. Y. S. 33. B5 Inland Steel Co. v. Smith, 75 N. E. 852, 39 Ind. App. 636, judgment affirmed 80 N. E. 538, 168 Ind. 245. 6 6 Wells V. Territory, 78 P. 124, 14 Okl. 436 ; Peart v. Chicago, M. & St. P. Ey. Co., 8 S. D. 431, 66 N. W. 814 ; Missouri, K. & T. Ry. Co. of Texas v. Hurdle (Tex. Civ. App.) 142 S. W. 992. Sufficiency of compliance vritli statute. A refusal of instructions asked by writing at the bottom of the last of the pages on which they were written, "the foregoing are all refus- ed — some because they are embraced within those given by the court ; oth- ers because they are believed to not accurately state the law" — is suffi- cient. Territory v. Baker, 4> N. M. (Johns.) 117, 13 P. 30. If the words "Given" or "Refused" be indorsed up- on the judge's charge, or annexed thereto, that will sufficiently show the disposition of the charge, and subject it to revision for error. Thompson v. Chumney, 8 Tex. 389. Where several requests for instructions were on the same piece of paper, and unseparated, it was a proper mode of refusing them for the judge to write the word "Re- fused" on the paper, and sign his name thereto. Pearce v. State, 22 So. 502, 115 Ala. 115. That an In- struction is indorsed by the court "Given as modified" does not show that part of it was refused, so as to require the court, as provided by the statute in such case, to make an in- dorsement showing the part given and the part refused, as the modifica- tion may have consisted in something added by the court by way of correc- tion or otherwise. People v. Owens, 56 P. 251, 123 Cal. 482. The indorse- ment by the court upon an instruc- tion submitted that it "did not consid- er and pass upon said proposition, be- cause it did not include and was not based on the leading facts upon which the case was tried," amounts to a re- fusal, and is a sufficient compliance with the practice act. Moore v. Sweeney, 28 111. App. 547. Where a party asks the court to give each of seven instructions written on six leaves of paper fastened together at the top, and the court writes on the margin of the first of said leaves: "Instructions one to seven all refused. Defendant excepts" — and signs the same, there is a substantial compli- ance with the statute, requiring the court to write on the margin of each instruction not given the word "Re- fused." Harvey v. Tama Coimty, 53 Iowa, 228, 5 N. W. 130. An instruc- tion, or a series of instructions, head- ed, "Instructions Given by the Court on Its Own Motion," and so placed in the record as to be clearly separate and distinguishable from the instruc- tions presented by the parties, suffi- ciently complies with a statute pro- viding that instructions must be marked "Given" or "Refused" on the 493 INSTRUCTIONS TO JURIES 878 While such statutes are held to be mandatory in some jurisdic- tions,®' in other jurisdictions they are held to be directory merely,** and ordinarily the mere failure of the trial judge to indorse "Given" or "Refused" on each instruction asked will not be cause for re- versal, where the party complaining does not direct attention to the omission,®* or where it can be ascertained which instructions were given and which refused,** or where such failure is not prej- udicial to the losing party .^'^ and it has been held that not marking instructions either "Given" or "Refused," when they are not given, has the same effect as marking them "Refused." *^ Such a statutory provision does not apply to instructions given by the court on its own motion.** In some jurisdictions, where an instruction is refused because its substance has been given, that fact should be noted on the instruction.** margin. Gillen v. Eiley, 27 Neb. 158, 42 N. W. 1054. Sufficiency' of signature of judge. The statute does not require the judge to sign his name in full on charges marked by him "Given" or "Refused," or to add his title to his name in such cases. Kennedy v. Smith, 99 Ala. 83, 11 So. 665. 6 7 Levy V. Burkstrom, 174 III. App. 276; Holcomb v. Norman, 87 N. E. 1057, 43 Ind. App. 506. 5 8 Farrell v. Citizens' Light & Ry. Co., 114 N. W. 1068, 137 Iowa, 309; Van Buskirk v. Quincy, O: & K. C. R. Co., Ill S. W. 832, 131 Mo. App. 357. 'i9Barnewall v. Murrell, 108 Ala. 366, 18 So. 831. 60 People V. Duzan, 112 N. E. 315, 272 111. 478 ; McDonald v. Fairbanks, Morse & Co., 161 111. 124, 43 N. E. 783; Tobin v. People, 101 111. 121; Cook v. Hunt, 24 111. 535; Chicago Union Traction Co. v. Olsen, 113 111. App. 303, judgment affirmed 71 N. B. 985, 211 111. 255 ; Harrigan v. Turner, 65 111. App. 469; Frame v. Murphy, 56 111. App. 555; St. Louis, A. & T. H. E. Co. V. Hawkins, 39 111. App. 406; Clapp V. Martin, 33 111. App. 438. See Washington v. State, 106 Ala. 58, 17 So. 546. Effect of error in marking in- struction. Where, in a closely-con- tested case, an instruction which cor- rectly states the law Upon an Impor- tant branch of the case is read to the jury, marked "Refused," and given to the jury with other instructions marked "Given," and no other In- struction covering the same point is given, a reversal of the judgment is justified. Terre Haute & I. R. Co. v. Hybarger, 67 111. App. 480. 01 111. Daxanbeklar v. People, 93 111. App. 553 ; World's Columbian Ebc- position V. Bell, 76 111. App. 591. loura. Turley v. Griffin, 76 N. W. 660, 106 lowaj 161. Neb. Clasen v. Pruhs, 95 N. W, 640, 69 Neb. 278, 5 Ann. Gas. 112; Home Fire Ins. Co. v. Decker, 75 N. W. 841, 55 Neb. 846; Eickhoff v. Eik- enbary, 72 N. W. 808, 52 Neb. 332. 6 2 Leman v. United States Fidelity & Guaranty Co. of Maryland, 187 111. App. 258 ; Chicago, W. & V. Coal Co. V. People, 114 111. App. 75, judgment affirmed 78 N. E. 770, 214 HI. 421. 63 Territory v. Cordova, 68 P. 919, 11 N. M. 367. 6* State V. Ferguson, 9 Nev. 106. In California, since the jury can take into their room only instructions given and have no knowledge of in- structions which have been refused, the court need not state to the jury that it refuses to give certain instruc- tions asked because they have been given in other instructions. People v Barthleman, 52 P. 112, 120 Cal. 7. 879 REQUESTS OR PRAYERS FOR INSTRUCTIONS §494 § 454. Inconsistent requests A party cannot complain of the refusal of a requested instruction which is inconsistent with one given at his own instance.®^ At least he cannot so complain without first asking for the withdrawal of the prior inconsistent instruction.*® Inconsistencies between in- structions given at the request of the respective parties, arising from the fact that the instructions given at the instance of one »« Ala. Western Union Telegraph Co. V. Griffith, 50 So. 91, 161 Ala. 241. Colo. Healey v. Kupp, 63 P. 319, 28 Colo. 102. 111. . Chicago City Ey. Co. v. Tay- lor, 48 N. E. 831, 170 111. 49, affirming judgment 68 111; App. 613; United States Rolling Stock Co. v. Wilder, 116 lU. 100, 5 N. E. 92 ; Fitzsimmons- Kreider Milling Co. v. Millers' Mut. Fire Ins. Ass'n of Illinois, 161 111. App. 542. Ky. Louisville & N. R. Co. v. Hun- ter, 10 Ky. Law Rep. (abstract) 871. Md. JEtna Indemnity Co. of Hart- ford, Conn., V. George A. Fuller Co., 73 A. 738, 111 Md. 321, reargument denied 74 A. 369, 111 Md. 321; B. F. Sturtevant Co. v. Cumberland Dugan & Co., 68 A. 351, 106 Md. 587, 14 Ann. Cas. 675; Cumberland Coal & Iron Co. V. Tilghman, 13 Md. 74. Mass. Percival v. Chase, 65 N. E. 800, 182 Mass. 371. Mo. St. Louis, K. & N. W. R. Co. V. Knapp, Stout & Co. Company, 61 S. W. 300, 160 Mo. 396 ; Tetherow v. St. Joseph & D. M. R. Co., 98 Mo. 74, 11 S. W. 310, 14 Am. St. Rep. 617. Nelj. Missouri Pac. R. Co. v.- Pox, 83 N. W. 744, 60 Neb. 531. N. Y. Ramsey v. National Con- tracting Co., 63 N. y. S. 286, 49 App. Div. 11. Pa. Griesemer v. Suburban Elec- tric Co., 73 A. 340, 224 Pa. 328. Tex. Missouri, K. & T. Ry. Co. of Texas v. Reno (Civ. App.) 146 S. W. 207; Texas & P. Ry. Co. v. Hassell, 58 S W. 54, 23 Tex. Civ. App. 681; Scott v. Texas & P. Ry. Co., 57 S. W. 801, 93 Tex. 625, reversing judgment (Civ. App.) 56 S. W. 97. Vt. Briggs V. Town of Georgia, 12 Vt. 60. ^ ^ Va. City of Richmond v. Pember- ton, 61 S. B. 787, 108 Va. 220. ■W. Va. Baltimore & O. R. Co. v. Lafferty, 2 W. Va. 104; Lazzell v. Napel, 1 W. Va. 43. Reqinests held not inconsistent witliin rule. The insertion in an instruction requested by plaintiff of a requirement that the jury must find that the west side of a street intersec- tion was the regular stopping place for street cars traveling in the direc- tion plaintifE was going at the time she was injured in attempting t6 alight did not preclude her from hav- ing the case submitted to the jury in another instruction, to the effect that, if the car was halted in obedience to her signal to permit her to alight, and was started careilessly while she was doing so, she was entitled to recover, regardless of the question whether the car had stopped at its usual stop- ping place. Groshong v. United Rys. Co. of St. Louis, 121 S. W. 1084, 142 Mo. App. 718. A requested charge by defendant, in slander, that, unless he spoke the words charged in the peti- tion or enough of them to constitute the charge of misconduct, the verdict should be for him, given as the coun- terpart of a charge given for plain- tifE, is not inconsistent with the posi- tion taken by defendant by demurring to the evidence on the ground of in- sufficiency to support the petition. Kunz V. Hartwig, 131 S. W. 721, 151 Mo. App. 94. In action for injury to a person struck by a train at a grade crossing, plaintiff, by submitting the issue of the humanitarian doctrine, did not preclude himself from sub- mitting his theories of recovery based on negligence. De Rousse v. West, 200 S. W. 783, 198 Mo. App. 293. ao Gregory v. Chicago, R. I. & P. R. Co., 124 N. W. 797, 147 Iowa, 715, Ann. Cas. 1012B, 723. 4!}5 INSTRUCTIONS TO JURIES 880 of the parties are too favorable to him, cannot be complained of by him.®'' G. Power and Duty of Court with Respect to the Modifica- tion OF, OR THE Substitution of Other Instructions EOR, Correct Requests § 495. Rule that court may, on granting a correct request, vary its phraseology The general rule is, both in civil ®* and in criminal cases,** that instructions need not be given in the exact language in which 111. Jansen v. Grimshaw, 125 111. 468, 17 N. E. 850; Chicago & N. W. Uy. Co. V. Goebel, 119 111. 515, 10 N. E. 369 ; Clintoh Wire Cloth Co. v. Gard- ner, 99 111. 151; Needham v. People, 98 111. 275 ; Hays v. Borders, 1 Gil- man, 46; Bom v. Schrieber, 199 111. App. 101. Iowa. State V. Gibbons, 10 Iowa, 117. Kan. Eouse v. Downs, 47 P. 982, 5 Kan. App. 549; Reed v. Golden, 2S Kan, 632, 42 Am. Rep. 180 ; Deitz v. Regnier, 27 Kan. 94; City of Topeka V, Tuttle, 5 Kan. 311. Ky. Slusher v. Hopkins, 89 S. W. 244, 28 Ky. Law Rep. 347. Me. Godfrey v. Haynes, 74 Me. 96; Foye V. Southard, 64 Me. 389 ; Treat V. Lord, 42 Me. 552, 66 Am. Dee. 298; Anderson v. City of Bath, 42 Me. 346. Md. Higgins v. Carlton, 28 Md. 115, 92 Am. Dec. 666 ; Hall v. Hall, 6 Gill & J. 386. Mass. Heuser v. Tileston & Hol- lingsworth Co., 119 N. E. 683, 230 Mass. 299 ; Holbrook v. Seagrave, 116 N. E. 889, 228 Mass. 26 ; Tripp v. Taft, 106 N. B. 578, 219 Mass. 81 ; O'Leary V. Boston Elevated Ey. Co., 95 N. E. 85, 209 Mass. 62; Stubbs v. Boston & N. St. Ry. Co., 79 N. B. 795, 193 Mass. 513; Perclval v. Chase, 65 N. E. 800, 182 Mass. 371 ; Davenport v. Johnson, 65 N. E. 392, 182 Mass. 269; P. P. Emery Mfg. Co. v. Rood, 65 N. E. 58, 182 Mass. 166 ; Boston Dairy Co. v. MuUiken, 175 Mass. 447, 56 N. E. 711 ;" Western v. Barnicoat, 175 Mass. 454! 56 N. B. 619, 49 L. R. A. 612 ; O'Neil '° See note 69 on page 884. 6 7 McNamara v. Macdonough, 102 Cal. 575, 36 P. 941. 68 u. S. Continental Imp. Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403; Law V. Cross, 1 Black, 533, 17 L. Ed. 185 ; Clymer v. Dawkins, 44 U. S. (3 How.) 674, 11 L. Ed. 778; (C. C. A. Cal.) Mountain Copper Co. v. Van Buren, 133 P. 1, 66 C. C. A. 151; (C. C. Me.) ,Pitts V. Whitman, Fed. Cas. No. 11,196, 2 Story, 609; (C. O. A. Vt.) Boston & M. R. Co. V. McDufCey, 79 F. 934, 25 C. C. A. 247; (C. C. A. Va.) Mathieson Alkali Works v. Mathieson, 150 F. 241, 80 O. C. A. 129 ; (C. C. A. W. Va.) Southern Bell Telephone & Telegraph Co. v. Watts, 66 F. 460, 13 C. C, A. 579. Ala. Long v. Rodgers, 19 Ala. 321. Cal. People V. Cox, 155 P. 1010, 29 Cal. App. 419 ; Jamson v. Quivey, 5 Cal. 490; Conrad v. Lindley, 2 Cal, 173. Conn. Radwick v. Goldstein, 98 A. 583, 90 Conn. 701; Koskoff v. Gold- man, 85 A. 588, 86 Conn. 415; Dun- ham V. Cox, 70 A. 1033, 81 Conn. 268; Tiesler v. Town of Norwich, 47 A. 161, 73 Conn. 199; Appeal of Livingston, 63 Conn. 68, 26 A. 470. Tiak, Parliaman v. Young, 2 Dak. 175, 4 N. W. 139, 711. Ga, Holbert v. Allred, 102 S. E. 192, 24 Ga. App. 727; Atkinson v. F. S. Dismuke & Bro., 75 S. B. 835, 11 Ga. App. 521; Southern Ry. Co. v. Reynolds, 55 S. B. 1039, 126 Ga. 657; Southern Cotton Oil Co. v. Skipper, 54 S. E. 110, 125 Ga. 368 ; Western & A. R. Oo. V. Clements, 60 Ga. 319; Hammack v. State, 52 Ga. 397 ; Long V. State, 12 Ga. 293. 881 REQUESTS OR PRATERS FOR INSTRUCTIONS §495 they are requested, although the requests are entirely proper, but V. Hanscom, 175 Mass. 313, 56 N. B. 587 ; Black v. Buckingham, 17"4 Mass. 102, 54 N. E. 494 ; Sullivan v. Shee- han, 58 N. E. 902, 173 Mass. 361; Spaulding v. Jennings, 173 Mass. 65, 53 N. E. 204 ; Boylan v. Everett, 172 Mass. 453, 52 N. E. 541; Frost v. Cour- tis, 172 Mass. 401, 52 N. E. 515 ; Dor- ey v. Metropolitan Life Ins. Co., 172 Mass. 234, 51 N. B. 974 ; Ellis v. Si- monds, 47 N. E. 116, 168 Mass. 316; Noble V. Fagnant, 162 Mass. 275, 38 N. E. 507 ; Commonwealth v. Farrell, 160 Mass. 525, 36 N. B. 475 ; Breen v. Field, 159 Mass. 582, 35 N. E. 95; Turner v. Patterson, 160 Mass. 20, 34 N. B. 1083 ; Norwood v. City of Som- erville, 159 Mass. 105, 33 N. E. 1108; Commonwealth v. Moore, 157 Mass, 324, 31 N. E. 1070 ; O'Driscoll v. Fax- on, 156 Mass. 527, 81 N. B. 685 ; Merri- gan V. Boston & A. R. Co.,. 154 Mass. 189, 28 N. E. 149 ; Hudson v. Inhabit- ants of Marlborough, 154 Mass. 218, 28 N. E. 147 ; Weld v. Brooks, 152 Mass. 297, 25 N. E. 719 ; Parker v. City of Springfield, 147 Mass. 391, 18 N. E. 70; Inhabitants of Deerfleld v. Con- necticut River R. R., 144 Mass. 325, 11 N. E. 105. Micli. Alton v. Meenwenberg, 66 N. W. 571, 108 Mich. 629; Lewis v. Rice, 27 N. W. 867, 61 Mich. 97. Minn.. Anderson v. Foley Bros., 124 N. W. 987, 110 Minn. 151 ; Smith v. St. Paul & D. R. Co., 51 Minn. 86, 52 N. W. 1068; Dodge v. Rogers, 9 Minn. 223 (Gil. 209). Miss. George v. State, 39 Miss. 570. Mo. Grimes v. Cole, 118 S. W. 685, 183 Mo. App. 522; Taylor v. Missouri Pac. Ry. Co., 16 S. W. 206; Stocke v. Mueller, 1 Mo. App. 163. NeTj. Meyer v. Shamp, 71 N. W. 57 51 Neb. 424; Lau v. Grimes Dry Goods Co., 38 Neb. 215, 56 N. W. 954 ; Jameson v. Butler, 1 Neb. 115. W. H. Kasjeta v. Nashua Mfg. Co., 58 A. 874, 73 N. H. 22; Blwell v. Roper, 58 A. 507, 72 N. H. 585; Bond V. Bean, 57 A. 840, 72 N. H. 444, 101 Am. St. Rep. 686 ; Wheeler v. Grand Trunk Ry. Co., 50 A. 103, 70 N. H. 607 54 L. R. A. 955; Walker v. Walker, 64 N. H. 55, 5 A. 460; Clark V. Wood, 34. N. H. 447. INST.TO Juries— 56 N. J. Miller v. Delaware River Transp. Co., 90 A. 288, 85 N. J. Law, 700, Ann. Cas. 1916C, 165; Pavan v. Worthen & Aldrich Co., 78 A. 658, 80 N. J. Law, 567. N. Y. Sherman v. Wakeman, 11 Barb. 254'; Williams v. Birch, 19 N. Y. Super. Gt. 299. N. G. Hall V. Geissell & Richard- son, 103 S. E. 392, 179 N. C. 657 ; Beck V. Sylva Tanning Co., 101 S. E. 498, 179 N. C. 123 ; Hooker v. Norfolk & S. B. Co., 72 S. E. 210, 156 N. C. 155 ; Harris v. Atlantic Coast Line R. Co., 43 S. E. 589, 132 N. C. 160 ; Bethea v. Raleigh & A. A. L. R. Co., 106 N. C. 279, 10 S. E. 1045; Carlton v. Wil- mington & W. R. Co., 104 N. C. 365, 10 S. E. 516; Newby v. Harrell, 99 N. C 149, 5 S. E. 284, 6 Am. St. Rep. 503: Patterson v. Mclver, 90 N. C. 493 Overcash v. Kitchie, 89 N. C. 384 Burton v. March, 51 N. C. 409 ; Mar- shall V. Plinn, 49 N. C. 199 ; Town of Newbern Com'rs v. Dawson, 32 N. C. 436. Obio. Ashtabula Rapid Transit Co. V. Dagenbach, 11 O. C. D. 307. Okl. Veseley v. Bngelkemier, 61 P. 924, 10 Okl. 290. Or. Booth-Kelly Lumber Co. v. Williams, 188 P. 213, 95 Or. 476; State V. Butler, 186 P. 55, 96 Or. 219 ; Stool V. Southern Pac. Co., 172 P. 101, 88 Or. 350. Pa. Jones v. Greenfield, 25 Pa. Super. Ct. 815; Geiger v. Welsh, 1 Rawle, 349. R. I. McGowan v. Court of Pro- bate of City of Newport, 62 A. 571, 27 R. I. 394, 114 Am. St. Rep. 52. S. C. State V. Simmons, 100 S. E. 149, 112 S. C. 451; State v. Jones, 88 S. E. 444, 104 S. C. 141 ; Hair v. Winnsboro Bank, 88 S. B. 26, 103 S. C. 343 ;■ Broom v. Atlantic Coast Line R. Co., 80 S. E. 616, 96 S. C. 368; Pooler V. Smith, 52 S. E. 967, 73 S. C. 102 ; Edwards v. Wessmger, 43 S. E. 518, 65 S. 0. 161, 95 Am. St. Rep. 789. Tex. Western Union Telegraph Co. V. Goodson (Civ. App.) 202 S. W. 766 ; Gulf, 0. & S. F. Ry. Co. v. Davis, 80 S. W. 253, 85 Tex. Civ. App. 285. TTtah. Speight v. Rocky Mountain Bell Telephone Co., 107 P. 742, 36 Utah, 483; Hickey v. Rio Grande §495 INSTRUCTIONS TO JURIES 882 Western Ry. Co., 82 P. 29, 29 Utah, 392. Vt. Rice V. Bennington County Sav. Bank, 108 A. 706, 93 Vt. 493; Desmarchier v. Frost, 99 A. 782, 91 Vt. 138 ; Campbell v. Day, 16 Vt. 558. Wash. Hall V. Northwest Lumber Co., 112 P. 369, 61 Wash. 351 ; Aver- buch V. Great Northern Ry. Co., 104 P. 1103, 55 Wash. 633 ; Smith v. Mich- igan Lumber Co., 86 P. 652, 43 Wash. 402 ; Gottstein v. Seattle Lumber & Commercial Co., 7 Wash. 424, 35 P. 133 ; Seattle v. Buzby, 2 Wash. T. 25, 3 P. 180. Wis. Jones V. Monson, 119 N. W. 179, 137 Wis. 478, 129 Am. St. Rep. 1082. Consent to modification. It was not error to qualify defendant's re- quested Instruction In giving it, where the defendant accepted it as qualified. Tucker v. State, 150 S. W. 190, 67 Tex. Cr. R. 510. Ulnstrations of proper modifica- tions. An instruction that the proof of certain disputed facts must be "af- firmative and direct" is a sufficient compliance with the prayer that it should be "affirmative and distinct." Cornelius v. Brawley, 109 N. C. 542, 14 S. E. 78. It is proper to modify an Instruction which states that, "while the law presumes all men to be sane, yet this presumption is over- come by evidence tending to prove insanity," so as to make it rea(J, "yet this presumption may be overcome," etc. Jamison v. People, 145 111. 357, 34 N. E. 486. An instruction "that the plaintiff must prove his case by a preponderance or greater weight of evidence. Therefore, if the evidence in this case preponderates in favor of the defendant, or if the evidence fails to preponderate in favor of the plain- tiff, or if you are unable to say on which side is the greater weight of the evidence, you should find the is- sues for the defendant" — is not mate- rially changed by inserting "on plain- tiff's case" after the word, "case." Frank v. Crane, 154 111. App. 643. In a prosecution for procuring an abor- tion, it was not error for the court to modify instructions given at defend- ant's request by including in the hy- pothesis on which he would not be guil- ty the fact that he did not aid or assist in the act. Cook v. People, 52 N. E. 273, 177 111. 146. A charge that the jury is not to decide the case by sympathy with the plaintiff or ill feel- ing against railroads, but according to the law charged and the evidence heard, is a sufficient answer to a re- quest to charge that it would be not only illegal, but disgraceful, for the jury to be swayed by any outside in- fluence. Hay V. Carolina Midland By. Co., 41 S. C. 542, 19 S. E. 976. Where requested instructions contain a proposition of law depending on questions of fact, regarding which there is a material dispute, the court may qualify his affirmance of the points requested by telling the jury that it must determine the disputed facts. Shyder v. Loy, 4 Pa. Super. Ct. 201, 40 Wkly. Notes Cas. 333. In an action for breach of a contract to feed sheep where plaintiff alleged defendant's delay in constructing cor- rals, the substitution of the word "reasonable" for the words "reason- ably short" in a' requested charge with reference to the time for such construction was not error. Rea v. Alfalfa Products Co., 161 P. 708, 53 Mont. 90. It was not error to modify a charge that if the jury believed that plaintiff purchased a ticket to a certain station, but remained on the train and did not get off there, and did not communicate his intention to get off at a place further on, to the conductor, and if the conductor did not know that plaintiff intended to leave the train when he did, they should find for defendant, by substi- tuting "defendant's servants" for the word "conductor" where first used, and "such servant" for "conductor" where it later appeared; there being no substantial difference between the words; "servants" including "con- ductor." Cornell v. Chicago, R. I. & P. Ry. Co., 128 S. W. 1021, 143 Mo. App. 598. There is no ground of exception to instructions by the court, stating in general propositions the law of domicile as applicable to the facts of the case, though embraced in a different form from the in- structions asked for ; it not appearing that the judge made any improper reference to the evidence applicable to them, or that the jury failed to ap- 883 REQUESTS OE PEATEES FOR INSTRUCTIONS 495 predate them and apply them to the case. Wilson v. Terry, 11 Allen (Mass.) 206. Defendant having re- quested an instruction that if the jury believed certain facts relative to the arrest as testified to by the magis- trate defendant could not be held re- sponsible, it was not error to give the instruction, with the omission of the words "as festifled to by the justice." Lovick V. Atlantic Coast Line R. Co., 40 S. E. 191, 129 N. O. 427. A request to charge, in effect, that defendant could not complain of a fraud, if at the time he executed the note he en- tertained a settled conviction that he had been defrauded, is satisfied by a charge that if defendant knew when he signed the note that he had been defrauded plaintiff could recover. Smith V. McDonald, 102 N. W. 738, 139 Mich. 225. Where plaintiff claim- ed that a conveyance of defendant's goods was in fraud of creditors, and requested a charge that, in determin- ing whether the purchaser knew of the debtor's intention to defraud, facts coming to the notice of the pur- chaser, which would put a prudent man on inquiry which, if followed, would lead to the knowledge of the fraud, were evidence from which the jury might infer knowledge of such fraud, and the court modified instruc- tion by striking out the words, "from which the jury may infer that the purchaser had knowledge of such fraud," and inserting, "which the ju- ry may consider in determining whether the purchaser had knowl- edge of such fraud," the modification was not error, since the difference In meaning was so unsubstantial that the jury could not have been misled there- by. John Deere Plow Co. v. Sullivan, 59 S. W. 1005, 158 Mo. 440. Where a re- quest to charge is simply that the ju- ry determine whether or not a mar- ried woman knew that her husband was carrying on business as her agent, it is a compliance with the re- quest for the court to go further, and charge that such carrying on of the business must be with her knowledge, consent, and approval. Reed v. New- comb, 64 Vt. 49, 23 A. 589. The court's modification of a requested in- struction, that an employe of full age and ordinary intelligence assumes the risk of dangers which are "open and plain to his sight," by adding the words "and understanding," does not change its meaning. Chicago, R. I. & P. Ry. Co. V. Kinnare, 60 N. B. 57, 190 111. 9, affirming judgment 91 111. App. 508. Upon an issue as to the negligence of a defendant railroad company in failing to properly inspect a car, a defect in which caused plain- tiff's injury, it was not errpr for the court to modify a requested instruc- tion, so as to confine the considera- tion of the jury to the inspection of the particular car in question. Illi- nois Cent. R. Co. v. Coughlin (C. C. A. Tenn.) 145 F. 87, 75 C. C. A. 262. An in^ruction that testimony as to other defects in the sidewalk near the place where plaintiff was injured was admitted for the purpose of showing notice to the city is a substantial com- pliance with a request to charge that the consideration of such testimony should be limited to the subject of notice. Moore v. City of Kalamazoo, 109 Mich. 176, 66 N. W. 1089. In an action against a municipal corpora- tion for maintaining a dam, so as to cause plaintiff's land to be overflowed, defendant claimed that the right to Qow the land had been dedicated to the public, and plaintiff requested an instruction that the fact that hunting, fishing, or boating were done over or near plaintiff's overflowed lands was alone not enough to show dedication, and the court gave the instruction, adding, "This means, of course, just what it says — that the fact of hunt- ing or fishing upon plaintiff's land, in and of itself, is not enough to show that there had been any dedication," Boye V. City of Albert Lea, 100 N. W. 642, 93 Minn. 121. Submitting to the jury the question whether a so- ciety arranging a bicycle race was guilty of negligence in permitting a sulky into which one of the riders ran to be standing on the track was a sufficient compliance with a request to charge that the society was not under the duty to keep the whole track clear, but only so much as was neces- sary for the race. Benedict v. Union Agricultural Soc, 52 A. 110, 74 Vt. 91. A response to a request to charge that, if deceased's negligence contrib- uted in the slightest degree to the §495 INSTRUCTIONS TO JURIES 884 accident, plaintiff could not recover, wherein the court stated that, if de- ceased's negligence contributed at all, it would defeat the action, was not erroneous in emphasizing the word "contributed." Predmore v. Consum- ers' Light & Power Co., 91 N. Y. S. 118, 99 App. Div. 551. In replevin, where defendant claimed property had been abandoned, action of court in defining term "abandon," used in requested instruction given for .de- fendant, was not an alteration of such instruction. St. Louis Dairy Co. v. Northwestern Bottle Co. (Mo. App.) 204 S. W. 281. In an action for milk sold and delivered, defendant request- ed the court to rule that if any credit was given to defendant's sons, to whom the milk was delivered, a prom- ise by defendant to pay for it would be void unless in writing There was evidence that defendant had signed and delivered to plaintiff a writing, "Charge milk to me, and I will pay lor It." The court instructed the ju- ry that if they found the credit was given to the sons, and that defendant merely contracted to be responsible for the bill, that was not the contract sued on, and plaintiff could not re- cover ; adding that the alleged writing was not a contract of guaranty. Bos- ton Dairy Co. v. Mulliken, 56 N. E. 711, 175 Mass. 447. The modification of a charge requested by plaintiff in an action for trespass, one defense to which was adverse possession, by the insertion of the word "mere" be- fore the word "cultivation" In the statement that the cultivation of the land would not be an adverse exclu- sive holding, made no change in the meaning. Southern Realty & Inv. Co. V. Keenan, 83 S. B. 39, 99 S. C. 200. Where the mother of certain wit- nesses was a defendant in an action of ejectment, it was not error for the court to call attention to such fact, as qualifying a charge, given by defend- ants' request, that such witnesses were not interested parties. Fitz- patrick v. Graham (C. C. A. N. Y.) 122 F. 401, 58 C. C. A. 619. In Texas, there are early decisions holding that the practice of making alterations in requested instructions which are correct is improper. Tre- zevant v. Rains (Tex. Civ. App.) 25 S. W. 1092. 60 u. S. (C. C. A. N. Y.) Fraina v. United States, 255 F. 28, 166 C. C. A. 356 ; (C. C. A. N. D.) O'Hare v. United States, 253 F. 538, 165 C. C. A. 208, certiorari denied 39 S. Ct. 257, 249 U. S. 598, 63 L. Ed. 795. Ark. Sheppard v. State, 179 S. W. 168, 120 Ark. 160. Cal. . People v. Lemperle, 94 Cal. 45, 29 p. 709 ; People v. Cadd, 60 Cal. 640 ; People v. Dodge, 30 Cal. 448. Conn. State v. Castelli, 101 A. 476, 92 Conn. 58; State v. Lanyon, 76 A. 1095, 83 Conn. 449 ; State v. Rathbun, 51 A. 540, 74 Conn. 524. Del. Colombo v. State, 78 A. 595, 2 Boyce, 28, aflSrming judgment State v. Colombo (O. & T.) 75 A. 616, 1 Boyce, 96. Ga. Danzley v. State (App.) 102 S. E. 915; Mixon v. State, 68 S. E. 315, 7 Ga. App. 805 ; Whitley v. State, 66 Ga. 656; Long v. State, 12 Ga. 293. Kan. State v. Bush, 79 P. 657, 70 Kan. 739; State v. Volmer, 6 Kan. 371 ; Rice v. State, 3 Kan. 141. la. State V. Miller, 41 La. Ann. 677, 6 So. 546; State v. Wright, 41 La. Ann. 605, 6 So. 137; State v. Durr, 39 La. Ann. 751, 2 So. 546. Me. State v. Reed, 62 Me. 129; State v. Barnes, 29 Me. 561. Mass. Commonwealth v. Kronick, 82 N. E. 39, 196 Mass. 286 ; Common- wealth V. Tucker, -76 N. E. 127, 189 Mass. 457, 7 L. R. A. (N. S.) 1056; Commonwealth v. Johnson, 74 N. E. 939, 188 Mass. 382; Commonwealth v. Clancy, 72 N. E. 842, 187 Mass. 191: Commonwealth v. Chance, 54 N. E. 551, 174 Mass. 245, 75 Am. St. Rep. 306 ; Commonwealth v. Uhrig, 167 Mass. 420, 45 N. E. 1047; Common- wealth V. Mullen, 150 Mass. 394, 23 N. E. 51; Commonwealth v. Brown, 121 Mass. 69 ; Commonwealth v. Cobb. 120 Mass. 356; Commonwealth v. Costley, 118 Mass. 1. Mich. People v. Sauerbier, 139 N. W. 260, 173 Mich. 521; People v. Quimby, 96 N. W. 1061, 134 Mich. 625 ; People v. Weaver, 66 N. W. 567, 108 Mich. 649; People v. Parsons, 105 Mich. 177, 63 N. W. 69; Ulrich v. People, 39 Mich. 245. Miss. Matthews v. State, 66 So. «8S REQUESTS OK PEAXEES FOE INSTEUCTIONS §495 the court may choose its own form of expression,''" it being suffi- cient if the substance of the requested instructions is given,'"^ and •325, 108 Miss. 72; Scott v. State, 56 Miss. 287; Evans v. State, 44 Miss. 762; Boles v. State, 9 Smedes & M. 284. Mont. State V. Wells, 83 P. 476, 33 Mont. 291. Neb, Johnson v. State, 129 N. W. 281, 88 Neb. 328; Bradshaw v. State, 17 Neb. 147, 22 N. W. 361. N. J. State V. Eombolo, 103 A. 203, «1 N. J. Law, 560; Gardner v. State, 55 N. J. Law, 17, 26 A. 30. N. Y. People V. Katz, 103 N. E. 305, 209 N. Y. 311, Ann. Cas. 1915A, 501, affirming judgment 139 N. Y. S. 137, 154 App. Div. 44 ; People v. Wil- liams, 92 Hun, 354, 36 N. Y. S. 511. N. C. State v. Baldwin, 100 S. E. 345, 178 N. C. 693 ; State v. Fulcher, 97 S. E. 2, 176 N. C. 724; State v. Horner, 94 S. E. 291, 174 N. C. 788 ; State V. Price, 74 S. E. 587, 158 N. C. 641 ; State v. Bowman, 67 S. E. 1058, 152 N. O. 817; State v. Barrett, 65 S. E. 894, 151 N. C. 665; State v. Burnett, 55 S. E. 72, 142 N. C. 577; State V. Wilcox, 44 S. E. 625, 132 N. C. 1120; State v. Hicks, 41" S. E. 803, 130 N. C. 705; State v. Crews, 38 S. E. 293, 128 N. C. 581 ; State v. Mills, 116 N. C. 992, 21 S. E. 106 ; State v. Whitson, 111 N. C. 695, 16 S. E. 332; State V. Hargett, 65 N. C. 669 ; Haw- kins V. House, 65 N. C. 614; State v. Massage, 65 N. C. 480; State v. Brantley, 63 N. C. 518. Pa. Commonwealth v. Lewis, 71 A. 18, 222 Pa. 302; Commonwealth v. McManus, 143 Pa. 64, 21 A. 1018, 22 A. 761, 14 L. R. A. 89. S. C. State V. Bethune, 67 S. E. 466, 86 S. C. 143 ; State v. Petsch, 43 S. C. 132, 20 S. E. 993. S. D. State v. Kammel, 122 N. W. 420, 23 S. D. 465. Tex. Shultz V. State, 13 Tex. 401. Vt. State V. Eaton, 53 Vt. 574. Wash. State V. Cherry Point Fish Co., 130 P. 499, 72 Wash. 420; State V. Anderson, 70 P. 104, 30 Wash. 14 ; State V. Baldwin, 15 Wash. 15, 45 P. €50. W. Va. State V. Rice, 98 S. E. 432, 83 W. Va. 40a Illustrations of roper modifi- cations. Requested instruction in a homicide case that if the jury found upon the whole evidence that ac- cused did not have mental capacity to enable him to judge the nature of his act, etc., "your verdict should be acquittal," was sufficiently covered by substituting for the quoted words, "then there could be no crime." State V. Saxon, 86 A. 590, 87 Conn. 5. Where the jury have been charged to give the accused the benefit of ev- ery reasonable doubt, and the court, in refusing to charge that, "should a reasonable doubt . be entertained by one juror, the defendant cannot be found guilty," said, "I won't charge that in those words, but I charge you that as 1 have already charged you in my own language," the response must be taken to mean the same as the request ; and, the charge given being equivalent to that requested, error cannot be predicated on the refusal. State v. Powers, 37 S. E. 690, 59 S. C. 200. In Indiana, written special in- structions in a criminal case may be modified in writing by the court. Kocher v. State, 127 N. E. 3. 70 Mo. Harman v. Shotwell, 49 Mo. 423. N. J. Gluckman v. Darling (Err. & App.) 95 A. 1078, 87 N. J. Law, 320, affirming judgment (Sup.) 89 A. 1016, 85 N.^J. Law, 457. Pa. Hufnagle v. Delaware & H. Co., 76 A. 205, 227 P^. 476, 40 L. R. A. (N. S.) 982, 19 Ann. Cas. 850; Han- ratty V. Dougherty, 71 Pa. Super. Ct. 248. Wash. Lund v. Griffiths & Spra- gue Stevedoring Co., 183 P. 123, 108 Wash. 220. 71 U. S. Sugarman v. United States, 39 S. Ct. 191, 249 U. S. 182, 63 L. Ed. 550, dismissing writ of er- ror (D. C. Minn.) United States v. Sugarman, 245 F. 604 ; Cunningham V. Springer, 27 S. Ct. 301, 204 U. S. 647, 51 L Ed. 662, 9 Ann. Cas. 897, affirming judgment 13 N. M. 259, 82 P. 232 ; (C. O. A. N. C.) United States g 495 INSTRUCTIONS TO JURIES 886 this is true although a request is patterned after express rulings of the court of last resort in another case ; '* and it is held that, since it is the duty of the" court to simplify its charge to the jury, Leather Co. v. Howell, 151 P. 444, 80 C. 0. A. 674. Cal. Colusa & H. R. Co. v. Leon- ard, 167 P. 878, 176 Cal. 109 ; Miller V. Fireman's Fund Ins. Co., of San Francisco, 92 P. 332, 6 Cal. App. 395 ; Jenson v. Will & Finck Co., 89 P. 113, 150 Cal. 398. Conn. St. Paul's Episcopal Cliurch V. Fields, 72 A. 145, 81 Conn. 670. Ga. Atlantic Coast Line R. Co. v. Odum, 63 S. E. 1126, 5 Ga. App. 780. m, Ramey v. Baltimore & O. S. W. R. Co., 85 N. U. 639, 235 111. 502, affirming judgment 140 111. App. 203 ; KoshinsM v. Illinois Steel Co., 83 N. E. 149, 231 111. 198. Mass. Rich v. Silverman, 103 N. E. 382, 216 Mass. 195 ; Poole v. Bos- ton & M. B. B., 102 N. E. 918, 216 Mass. 12 ; Raymond v. Phipps, 102 N. E. 905, 215 Mass. 559 ; Delaney v. Berkshire St. Ry. Co., 102 N. E. 901, 215 Mass. 591; Hindle v. Healy, 90 N. E. 511, 204 Mass. 48; Lord v. Rowse, 80 N. E. 822, 195 Mass. 216. Minn. Petterson v. Butler Bros., 144 N. W. 407, 123 Minn. 516. Mo. McKay v. McKay, 182 S. W. 124, 192 Mo. App. 221 ; Miller v. Bar- nett, 101 S. W. 155, 124 Mo. App. 53. N. H. Marcotte v. Maynard Shoe Co., 85 A. 284, 76 N. H. 507. N. J. Karnitsky v. Machanic, 109 A. 303. N. C. Reed Coal Co. v. Fain, 89 S. B. 29, 171 N. C. 646; Hopkins v. Southern Ry. Co., 87 S. E. 320, 170 N. O. 485 ; Lloyd v. Bowen, 86 S. E. 797, 170 N. C. 216 ; Carter v. Seaboard Air Line Ry. Co., 81 S. E. 821, 165 N. C. 244 ; Marcom v. Durham & S. R. Co., 81 S. E. 290, 165 N. C. 259 ; Irvin v. Southern Ry. Co., 80 S. B. 78, 164 N. C. 5 ; Security Life & Annuity Co. v. Forrest, 68 S. E. 139, 152 N. C. 621 ; Graves v. Jackson, 64 S. E. 128, 150 N. C. 383. S. C. Bennett v. Colleton Cypress Co., 84 S. E. 882, 100 S. C. 335. Va. Baltimore & O. R. Co. v. Laf- fertys, 14 Grat. 478 ; Baltimore & O. R. Co. V. Polly, 14 Grat. 447. Wasli. Jones v. Elliott, 189 P. 1007, 111 Wash. 138; Fehler v. City of Montesano, 188 P. 5, 110 Wash. 143 ; Perry Bros. v. Diamond Ice & Storage Co., 158 P. 1008, 92 Wash. 105, Ann. Cas. 1918C, 891 ; Harvey v. Tacoma Ry. & Power Co., 116 P. 644, 64 Wash. 143 ; Domke v. Gunning, 114 P. 436, 62 Wash. 629; Edwards V. Seattle, R. & S. Ry. Co., 113 P. 563, 62 Wash. 77 ; Harris v. Brown's Bay Logging Co., 106 P. 152, 57 Wash. 8 ; Conrad v. John W. Graham & Co., 103 P. H22, 54 Wash. 641, 132 Am. St. Rep. 1137 ; Eangenier v. Seattle Elec- tric Co., 100 P. 842, 52 Wash. 401; Payne v. Whatcom County Ry. & Light Co., 91 P. 1084, 47 Wash. 342. Instructions held proper xpithin rule. Where, in a prosecution for murder, with plea of self-defense, de- fendant requested an instruction that what is an overt act or demonstra- tion of violence varies under the cir- cumstances; that under some cir- cumstances a slight movement may justify action, because of reasonable apprehension of danger, but that un- der other circumstances such will not b,e the case'; and that it is for the Jury to determine how it may be, and the court charged that threats or acts of hostility, however violent, will not avail, but that there must be some manifest act indicative of intent to injure; that the apprehen- sion of danger must be founded on sufEcient circumstances to authorize the opinion that a deadly purpose ex- ists ; that animosity, as indicated by words and actions, before and at the time, may be considered on the ques- tion of apprehension; and that the question of defendant's apprehension of danger is for the jury, it was held that the charge on the subject of "overt act" embraced the request. Ray V. State, 67 S. W. 553, 108 Teun. 282. " Brodie v. Carolina Midland Ry. Co., 46 S. C. 203, 24 S. E. 180. 887 BEQUESTS OE PRAYERS FOR INSTRUCTIONS §495 the practice of taking the instructions as requested by the respec- tive parties, and from them formulating a general charge embrac- ing all the matters of law arising upon the pleadings and evidence, is always to be commended, because in this way the points in issue may be sufficiently declared and clearly presented to the jury with- out unnecessary repetition.''* It is said in one case that there is a living reality imparted to a charge when the trial judge naturally and in his own words presents the vital principles of law which are considered important lor the jury to know.''* Under this rule the court may add other proper matters, which do not qualify the ideas contained in the instructions requested,''^ or may strike out of a re- quest matter the omission of which does not change the meaning of the request, or which is but a repetition or restatement of other mat- ters therein,''* or may omit matters which follow as a necessary con- clusion from the remainder of the request," and it is proper to omit an independent proposition which should have been preferred as a separate request,''* or to strike out an irrelevant clause not connect- ed with the remainder of the request,''* and where an instruction is 13 Mountain Copper Co. v. Van Bu- ren (C. C. A. Cal.) 133 F. 1, 66 C. C. A. 151; Bloch V. Detroit United Ky. (Mich.) 178 N. W. 670; Kinney v. Ferguson, 59 N. W. 401, 101 Mich. 178. li State V. Aughtry, 26 S. B. 619, 49 S C 285 TSArk. Zinn v. State, 205 S. W. 704, 135 Arlc. 342. Cal. Fitzgerald v. Southern Pac. Co., 173 P. 91, 36 Cal. App. 660 ; Peo- ple V. Weber, 86 P. 671, 149 Cal. 325 ; People V. Kelly, 46 Cal. 355. Ga. Waller v. State, 97 S. E. 876, 23 Ga. App. 156. 111. Chicago, B. & Q. R. Co. v. Pollock, 62 N. B. 831, 195 111. 156, af- firming judgment 93 111. App. 483; North Chicago St. R. Co. v. Anderson, 52 N. E. 21, 176 111. 635, affirming judgment 70 111. App. 336 ; Kinney v. People, 108 111. 519. Pa, Morris v. Guffey, 41 A. 731, 188 Pa. 534, 29 Pittsb. Leg. J. (N. S.) 233. Va. Washington-Sotithern Ry. Co. V. Cheshire, 65 S. E. 27, 109 Va. 741. 70 Cal. Colusa & H. R. Co. v. Ixonard, 167 P. 878, 176 Cal. 109; People V. Ashland, 128 P. 798, 20 Cal. App. 168. 111. People V. AUegi-etti, 126 N. E. 158, 291 111. 364. Mo. Berkshire v. Holcker, 216 S. W. 556, 202 Mo. App. 433; State v. Fannon, 59 S. W. 75, 158 Mo. 149. Utai. Broadbent v. Denver & R. G. Ry. Co., 160 P. 1185, 48 Utah, 598. Va. Vaughan v. Lytton, 101 S. B. 865. 126 Va. 671. ■Wash. State V. Jones, 101 P. 708, 53 Wash. 142. Instruction, on willful negli- gence. From a requested instruction as to willful negligence, complete without them, it is not error to omit the words, "there is little distinction, except in degree, in a positive inten- tion to do wrong and an. indifference whether wrong is done or not." Sher- fey V. Evansville & T. H. R. Co., 121 Ind. 427, 23 N. B. 273. 77 Virginia Ry. & Power Co. v. N. H. Slack Grocery Co., 101 S. B. 878, 126 Va; 685 ; Seattle & M. R. Co. v. Roeder, 70 P. 498, 30 Wash. 244, 94 Am. St. Rep. 864. 78 Kansas City, F. S. & M. R. Co. V. Stoner (G. 0. A. Ark.) 49 F. 209, 1 C. C. A. 231. 78 People V. Cotta, 49 Cal. 166. § 495 INSTEUCTIONS TO JURIES 888 calculated to mislead the jury by barren technicality the court may prevent the mischief by correcting the same.** The court may substitute for the words "due care" the words "ordinary care" and "reasonable care," *^ and, on the other hand, the striking out of the words "ordinary care" and substituting there- for the words "due care" does not alter their legal meaning.** A charge abstractly correct may be modified, so as to make it ap- plicable to the case,** and modifications which simply render re- quested instructions more specific, definite, and certain are proper.** A party cannot complain because an instruction requested by him, presenting his theory of the case, is modified so as to present the theory of his adversary at the same time,*^ nor because an in- struction asked by him is modified, so as to conform to other in- structions which he has requested ; *® nor can a party complain of the modification of a request from which he suffers no injury.*' § 496. Rule that court should give or refuse a requested charge without alteration In a few jurisdictions, and under some of the cases in other ju- risdictions, where the authorities are conflicting on the question herein discussed, if requested instructions are relevant and cor- rect, and free from any misleading tendencies, a party has a right to have them given precisely as written by him,** and where a so Chicago Title & Trust Co. v. Bra- P. 98, 40 Or. 363 ; Missouri, K. & T. dy, 165 Mo. 197, 65 S. W. 303. Ry. Co. of Texas v. Evans, 41 S. W. 81 Cliicago, B. & Q. R. Co. v. Yorty, SO, 16 Tex. Civ. App. 68. 158 111. 321, 42 N. B. 64. so Judy v. Sterrett, 153 111. 94, 38 82 St. Louis, I. M. & S. Ry. Co. v. N. E. 633, affirming 52 lU. App. 265 ; "Waren, 48 S. W. 222, 65 Ark. 619. Feary v. MetropoUtan St. Ry. Co., 62 ssFla. Evans v. Givens, 22 Fla. S. W. 452, 162 Mo. 75; Baltimore & 476. O. R. Co. V. Few's Ex'rs, 94 Va. 82, Ind. Citizens' St. R. Co. v. HofE- 26 S. E. 406. bauer, 56 N. E. 54, 23 Ind. App. 614. av Moore v. Chicago, B. & Q. Ry. Co., Iowa. Hall V. Hunter, 4 G. Greene, 65 Iowa, 505, 22 N. W. 650, 54 Am. 539. Rep. 26; Commonwealth v. Gill, 14 I-a. State V. Sehon, 68 So. 221, 137 B. Mon. (Ky.) 20 ; Bartlett v. Haw- La. 83. ley, 88 Minn. 308, 37 N. W. 580; Dill- Minn. Blackman v. Wheaton, 13 ingham v. Fields, 9 Tex. Civ. App. 1, Minn. 326 (Gil. 299) ; Dodge v. Rog- 29 S. W. 214. ers, 9 Minn. 223 (Gil. 209). ss Ala. Brewer v. State, 74 So. 84 People v. Archibald, 101 N. E. 764, 15 Ala. App. 681 ; Northern Ala- 582, 258 111. 383 ; Kleet v. Southern bama Ry. Co. v. White, 69 So. 308, 14 Illinois Coal & Coke Co., 197 111. App. Ala. App. 228 ; Franke v. Riggs, 93 243 ; Lefever v. Stephenson (Mo.) 193 Ala. 252, 9 So. 359 ; Eiland v. State, S. W. 840. 52 Ala. 322 ; Edgar v. State, 43 Ala. soLivezy v. Miller, 61 Md. 336; 45; Polly v. McCall, 37 Ala. 20 ; Bell Clark V. Soule, 137 Mass. 380 ; Smith v. Troy, 35 Ala. 184. v. State, 23 So. 260, 75 Miss. 542; Mich. Cook v. Brown, 62 Mich. Bingham v. Lipman, Wolfe & Co., 67 473, 29 N. W. 46, 4 Am. St. Rep. 870. 889 REQUESTS OR PRAYERS FOR INSTRUCTIONS §496 Statute provides that requested instructions must be given or re- fused without modification, the court cannot give a requested in- struction with explanations which alter its tenor.** Under this rule a charge which is unintelligible unless some change is made in its phraseology is properly refused.*** Statutory provisions, however, which require that requested in- structions, if given, shall not be changed or modified by the court, are not intended to preclude, and do not preclude, the giving of further and proper instructions on the same subject.*^ It may not be improper under the above rule to modify an abstract instruc- tion to make it applicable to the concrete case presented by the evidence,** and such rule does not require a reversal because of a modification of a requested instruction, unless the complaining party has been harmed thereby.** Miss. Cotton V. State, 31 Miss. 504 Mo. Turner v. Butler, 161 S. W. 745, 253 Mo. 202. Web. Severance v. Melick, 15 Neb. 610, 19 N. W. 596. N. D. Landis v. Fyles, 120 N. W. 566, 18 N. D. 587. OMo. Lake Shore & M. S. Ry. Co. T. Shultz, 19 Ohio Oir. Ot. K. 639, 9 O. C. D. 816; Lutterbeck v. Toledo Consol. St. Ey. Co., 5 O. C. D. 141. W. Va. State v. Verto, 64 S. E. 1025, 65 W. Va. 628; Morrison v. Fairmont & C. Traction Co., 55 S. B. 669. 60 W. Va. 441; Jordan v. Olty of Benwood, 26 S. E. 266, 42 W. Va. 312, 36 li. R. A. 519, 57 Am. St. Rep. 859 ; State v. Evans, 33 W. Va. 417, 10 S. E. 792. In 'Alabama, a statutory provision embodying the text rule does not ap- ply to oral requests. Warren v. State, 46 Ala. 549. Under such provision the court may, on giving a requested in- struction, accompany It with an ex- planatory statement, Montgomery Light & Water Power Co. v. Thombs, 87 So. 205, 204 Ala. 678; Callaway & Truitt V. Gay, 39 So. 277, 143 Ala. 524; Jackson v. State, 34 So. 188, 136 Ala. 22 ; Eiland v. State, 52 Ala. 322. Such provision is not violated by giving a request in connection with the general charge. Baker v. State, 49 Ala. 350. In Wisconsin, where the Statute requires that each instruction asked by counsel shall be given without change or modification, or refused in full, it is held that a modification is to be deemed a refusal to give as re- quested, and, that where the court modifies a requested instruction and then gives it, and such Instruction in- cludes all of that requested, and, as modified, correctly states the law ap- plicable to the case, it is not prejudi- cial error. Grace v. Dempsey, 75 Wis. 313. 43 N.' W. 1127. ' Illustrations of improper modi- fications. The giving of a charge on reasonable doubt in a murder case, with the remark: "This is a fool charge, §ut I will give it to you, gen- tlemen of the jury, as the Supreme Court has said it was good law ; but in my opinion it is misleading" — is a modification or a criticism of the charge, constituting reversible error. Barker v. State, 57 So. 88, 2 Ala. App. 92. 8 9 Galloway v. McLean, 2 Dak. 372, 9 N. W. 98. 8 Southern Industrial Institute v. Hellier, 39 So. 163, 142 Ala. 686. 01 Doan v. Town of Willow Springs, 76 N. W. 1104, 101 Wis. 112. 82 Greer v. Arrington, 79 S. B. 720, 72 W. Va. 693 ; Parfltt v. Sterling Ve- neer & Basket Co., 69 S. E. 985, 68 W. Va. 438. 08 Tompkins v. Kanawha Board, 21 W. Va. 224. § 496 INSTRUCTIONS TO JUEIES 890 In Texas the general rule is that the court should either give a requested charge as presented or refuse it in toto and not give the requested charge as modified,^* and while the court, where the charge requested consists of separate subdivisions defining distinct conditions of fact essential to be found, and contains a subdivision which is erroneous as applied to the facts, may modify it by elim- inating the erroneous subdivision, and give the special charge as modified, and the same will not be reversible error, yet the court is not required to make such modification and give the remaining portion in the terms asked.®® In Mississippi it is held that, while the court may decline the charges propounded by the parties, and may modify them, or re- duce to writing its own conception of the law upon the points em- braced in the charges asked, yet, if the charges as asked are cor- rect and pertinent, the safe practice is to give them as propounded.** In another jurisdiction the rule is stated to be that the qualifica- tion of a correct and pertinent instruction asked is error, if its force is essentially changed, unless the change merely states the law to cover the case more fully.*'' § 497. Power of court to substitute instructions of its own for correct instructions requested The trial court may refuse correct instructions requested by a party, and instead thereof give instructions of its own covering the same ground, or expressing the rule embraced in the instructions requested from a different angle,** and, as a general rule, the im- »* Missouri, K. & T. Rs, Co. of 111. City of Chicago v. Moore, 139 Texas v. Gilleriwater (Tex. Civ. App.) 111. 201, 28 N. E. lOTl, affirming 40 146 S. W. 589 ; Gulf, O. & S. F. Ry. 111. App. 332 ; . Birmingham Fire In.s. Co. V. Farmer! (Tex. Civ. App.) 108 Co. v. Pulver, 126 111. 329, 18 N. E. S. W. 729; St. Louis S. W. Ry. Co. 804, 9 Am. St. Rep. 598, affirming 27 V. Ball, 66 S. W. 879, 28 Tex. Civ. 111. App. 17; Hanchett v. Kimbark, App. 287. 118 111. 121, 7 N. E. 491 ; Alexander Harmless error. The mere fact v. Mandeville, 33 111. App. 589. that a modified requested instruction Ind. Williamson v. Yingling, 80 is given as one requested is not mate- Ind. 379. rial if the instruction Is otherwise Iowa. National State Bank v. Del- unob.1ectionable. St. Louis Southwes- ahaye, 82 Iowa, 34, 47 N. W. 999. tern Ry. Co. of Texas v. Shipp, 109 Kam. Evans v. Lafeyth, 29 Kan. S. W. 286, 48 Tex. Civ. App. 565. 736. »5 Grigsby V. Reib (Tex. Civ. App.) Ky. The Blue Wing v. Buckner, 139 S. W. 1027. 12 B. Mon. 246; Lowry v. Beekner, oe Archer v. Sinclair, 49 Miss. 343. 5 B. Mon. 41. 97 Young V. State, 24 Ha. 147, 3 Md. Rosenkovitz v. United Rys. & So. 881. Electric Co. of Baltimore City, 70 A. 8 8 Conn. Board of Water Com'rs 108, 108 Md. 306; Coates v. Sangston, of City of New London v. Robbing & 5 Md. 121. Potter, 74 A. 938, 82 Conn. 623. Mich. Miller v. Sharp, 31 N. W. 891 REQUESTS OE PRAYERS FOR INSTRUCTIONS §498 proper refusal of a correct instruction will be cured by the giving by the court, either on its own motion or on request, . of an in- struction substantially equivalent to the one refused.®* Where, however, the court gives no explanation of its refusal of a correct instruction, and other instructions given by the court, in which it intends to embody the requested instruction, do not, by their phraseology, disclose such intention, such refusal may be ground for new trial,^ and where instructions requested are perti- nent they should be given, rather than others of a more general nature substituted by the court.* § 498. MEmner of making modification Where the court regards a part of a requested instruction as an incorrect statement of the law, the court should not tell the jury that it charges such request except, so far as modified by its general charge ; it being the duty of the court to strike out of such request the erroneous part.* It is not fatal, however, to a re- quested instruction, that the court in amending it strikes out a portion in such a manner as to leave the part so stricken out to some extent legible,* when the instruction without the modification 608, 65 Mich. 21 ; Pound v. Port Hur- on & S. W. Ky. Co., 54 Mich. 13, 19 N. W. 570; Campau v. Dubois, 39 Mich. 274. Mo. Mitchell v. City of Plattsburg, 33 Mo. App. 555. Xeb. Western Mattress Co. v. Os- tergaard, 101 N. W. 334, 71 Neb. 572, affirming judgment on rehearing 99 N. W. 229, 71 Neb. 572. N. C. Cuthbertson v. North Caro- lina Home Ins. Co., 96 N. C. 480, 2 S. E. 258. Obio. Rheinheimer v. iEtna Life Ins. Co., 83 N. B. 491, 77 Ohio St. 360, 15 L. R. A. (N. S.) 245. Va. Rosenberg v. Turner, 98 S. B. 763, 124 Va. 769 ; Fitzgerald v. South- em Farm Agency, 94 S. B. 761, 122 Va. 264 ; Home Life Ins. Co. v. Sibert, 31 S. B. 519, 96 Va. 403. 9 9 Ark. Ft. Smith Lumber Co. v. Cathey, 86 S. W. 806, 74 Ark. 604; Vlser V. Bertrand, 16 Ark. 296. Cal. Davis v. Perley, 30 Cal. 630. 111. Willard v. Swanson, 126 111. 381, 18 N. E. 548. N. Y, Parkes v. Stafford, 61 Hun, 623, 16 N. Y. S. 756. Va. Proctor v. Spratley, 78 Va. 254. - Davis V. Richmond & D. R. Co., 30 S. C. 6il3, 9 S. B. 105. Equivalency not apparent ex- cept upon critical examination. Where a -charge cdnforms to the law and is authorized by the evidence, it should be given in the terms In which it is asked, though it may be neces- sary for the court to give additional or explanatory instructions; and the error of a refusal cannot be repaired by giving another charge, which, when critically examined, will be found to lay down substantially the same principle. Clealand v. Walker, 11 Ala. 1058, 46 Am. Dec. 238. 2 State V. McCann, 49 P. 216, 16 Wash. 249. 3 Avery v. House, 2 Ohio Cir. Ct. R. 246, 1 O. C. D. 468. 4 Union Ry. & Transit Co. v. Kal- laher, 114 111. 325, 2 N. E. 77. Necessity tbat requesting party sbould ask leave to rewrite in- struction. Where the court modified an instruction by erasing the words, "and the jury must find for the de- fendant," with one stroke of the pen, leaving them legible to the jury, it was held, that it was the privilege of appellant to ask leave to rewrite § 498 INSTRUCTIONS TO JDRIBS 892^ would have been correct.^ If the trial judge refuses to give a charge as asked, but gives it in a qualified form, the charge given should be explicit, and should immediately follow the refusal, or the jury should otherwise be made to understand that the charge asked is not entirely rejected.® In some jurisdictions a requested instruction may be modified by inserting or striking out matters, and, as so modified, given to the jury without being rewritten.' In other jurisdictions statutes pro- vide that the court, on giving a requested instruction with a modification, shall not inake such modification by interlineation or erasure,* although such statutes have been considered to be^ merely directory, and not to make an erasure,, not prejudicial to , the party objecting thereto, a ground for reversal.* In jurisdictions where the judge should give or refuse a charge asked in the very terms of the request, and if he wishes to give it with a qualification he should rewrite the, instruction embodying the qualifidation, it has been held that when a modification is ap- pended to a requested charge in such a manner as to show the pre- cise charge requested and the precise modification, and the whole is intelligible to the jury, no injury results to the party making the request.^" A modification necessary to certain numbered in- structions may properly be given in instructions of a different num- ber." H. Requests eor Insteuctions Ai^ready Covered by Other Instructions § 499. General rule While there are scattering decisions to the effect that it is er- ror for the court to refuse an instruction on. the ground that the same instruction has already been given in substance, both be- cause a party has a right to instructions in his own language and because such refusal, if in the presence of the jury and unexplained, has a tendency to raise in their minds a presumption that the in- the instruction, or obliterate the re- ' People v. Foster, 123 N., E. 534, jected words, and that, not having 288 111. 371. done so, he was not In a position to s Ham v. Wisconsin, I. & N. Ry. complain of the action of the court; Co., 61 Iowa, 716, 17 N. W. 157. the instruction being otherwise cor- » Denver & R. G. Ry. Co. v. Har- rect. Allison v. Hagan, 12 Nev. 38. ris, 3 N. M. (Johns.) 109, 2 Pac. 369. .State V. Patchen, 137 P. 406, 36 ,,''^,^'^12^^: ^S,,V2^'''^. ^^^- *^"- Rep. 867. » Selden v. Bank of Commerce, 3 n Columbia & P. S. R. Co. v. Haw- Minn. 166 (Gil. 108). thorne, 3 Wash. T. 353, 19 P. 25. 893 REQUESTS OR PRATERS FOR INSTRUCTIONS § 499 struction does not state the law,i« the general rule is that it is proper to refuse an instruction embodying principles already sub- stantially covered by other instructions given/* which state such 12 People V. Bonds, 1 Nev. 33. 13 U. S. (C. C. A. Ala.) United States Fidelity & Guaranty Cto. v. Walker, 248 F. 42, 160 C. G. A. 182 ; (C. O. A. Ark.) Wayne v. Venable, 260 F. 6^, 171 C. G. A. 100; Salmon v. Helena Box Co., 147 F. 408, 77 O. G. A. 586; (C. G. A. Gal.) American Trading Co. v. North Alaska Salmon Co., 248 F. 665, 160 O. G. A. 565, cer- tiorari denied 38 S. Ct. 581, 247 U. S. 518, 62 L. Ed. 1245 ; Atchison, T. & S. F. Ey. Go. V. Phillips, 176 F. 663, 100 C. G. A. 215; (C. O. A. Colo.) West- ern Inv. Co. V. McFarland, 166 F. 76, 91 C. C. A. 504 ; (O. C. A. Iowa) Illi- nois Gent. &y. Co. v. Nelson, 212 F. 69, 128 G. C. A. 525; Illinois Cent. R. Co. V. Egan, 203 F. 937, 122 C. C. A. 239; Chicago Great Western K. Co. V. McCormick, 200 F. 375, 118 C. O. A. 527, 47 L. R. A. (N. S.) 18; (C. C. A. Mass.) Boston & M. R. R. v. Baker, 236 F. 896, 150 C. G. A. 158; CC. O. A. Mich.) Detroit United Ry. V. Weintrobe, 259 F. 64, 170 O. C. A. 132 ; Farmers' & Merchants' Bank of Vandalia, 111., v. Maines, 195 Fed. 62, 115 C. O. A. 64; (G. C. A. Mo.) Northern Central Coal Go. v. Barrow- man, 246 F. 906, 159 C. C. A. 178; Mtaa. Life Ins. Co. v. Davis, 191 F. 343, 112 G. O. A. 87 ; (C. C. A. Neb.) Chicago, R. I. & P. Ry. Co. v. Bald- win, 204 F. 768, 123 G. G. A. 218; Chicago, B. & Q. R. Co. v. Upton, 194 F. 371, 115 C. O. A. 379; Gering v. Leyda, 186 F. 110, 108 G. O. A. 222 ; (O. C. A. N. H.) Lane v. Sargent, 217 F. 237, 133 G. O. A. 231; (G. G. A. N. J.) Mills Novelty Co. v. Peck, 158 F. 811, 86 C. G. A. 71; (C. C. A. N. T.) Whitcomb v. Shultz, 215 F. 75, 131 O. C. A. 383; (O. C. A. Ohio) Toledo, St. L. & W. R. Go. v. Rear- don, 159 F. 366, 86 0. C. A. 366; (C. C. A. Okl.) Winfrey v. Missouri, K. & T. Ry. Co., 194 F. 808, 114 C. G. A. 218; (C. O. A. Tenn.) Jackson Fibre, Co. v. Meadows, 159 F. 110, 86 C. G. A. 300 ; (G. C. A. Va.) Missouri Valley Bridge & Iron Co. v. Blake, 231 F. 417, 145 G. O. A. 411 ; Pulaski Mining Co. v. Hagan, 196 F. 724, 116 G. G. A. 352 ; (O. C. A. Wash.) Tacoma Ry. & Power Go. v. Erpelding, 202 F. 187, 120 G. C. A. 401 ; Idaho & W. N. R. R. V. Wall, 184 F. 677, 106 G. O. A. 631 ; (G. G. A. W. Va.) Baer Gro- cer Go. V. Barber Milling Co., 223 F. 969, 139 O. O. A. 449 ; Fitch v. HufC, 218 F. 17, 134 G. C. A. 31 ; ' (G. C. A. Wis.) Simmons Mfg. Go. v. Eskridge, 168 F. 675, 94 C. G. A. 161; (G. C. A. Wyo.) Owl Creek Coali Co. v. Goleb, 232 F. 445, 146 G. C. A. 439. Ala. Baker v. Green, 84 So. 545, 17 Ala. App. 290 ; Anders v. Wallace, 82 So. 644, 17 Ala. App. 154 ; Love V. State, 82 So. 639, 17 Ala. App. 149; Battles V. Whitley, 82 So. 573, 17 Ala. App. 125; Finney v. Newson, 82 So. 441, 203 Ala. 191 ; Alabama Water Co. V. Barnes, 82 So. 115, 203 Ala. 101; S. S. Steel & Iron Co. v. White, 82 S.o. 96, 203 Ala. 82; Shelby Iron Co. v. Bean, 82 So. 92, 203 Ala. 78; Bir- mingham Fuel Co. V. Taylor, 81 So. 630, 202 Ala. 674 ; Atlantic Coast Line R. Go. V. Jones, 78 So. 645, 16 Ala. App, 447 ; Johnson v. Johnson, 77 So. 335, 201 Ala. 41, 6 A. L. R. 1031; Smith V. Sharp Real Estate Co., 77 So. 40, 200 Ala. 666 ; Louisville & N. B. Co. V. Davis, 75 So. 977, 200 Ala. 219; Woodward Iron Co. v. Boswell, 75 So. 3, 199 Ala. 424; Southern States Fire Ins. Co. of Birmingham v. Kronenberg, 74 So. 63, 199 Ala. 164 ; Lewis V. Isbell Nat. Bank, 73 So. 655, 198 Ala. 484 ; City of Birmingham v. MuUer, 73 So. 30, 197 Ala. 554 ; Lon- don v. G. L. Anderson Brass Works, 72 So. 359, 197 Ala. 16; Alabama Great Southern R. Co. v. • Loveman Compress Co., 72 So. 311, 196 Ala. 683; Republic Iron & Steel Co. v. Howard, 72 So. 263, 196. Ala. 663. Ariz. Albert Steinfeld & Co. v. Wing Wong, 128 P. 354, 14 Ariz. 336; Grant Bros. Const. Go. v. United States, 114 P. 955, 13 Ariz. 388; Southern Pac. Go. v. Svensden, 108 P. 262, 13 Ariz. Ill; Southern Pac. Go. V. Hogan, 108- P. 240, 13 Ariz. 34, 29 L. R. A. (N. S.) 813 ; Title Guar- § 499 INSTRUCTIONS TO JURIES 894 anty & Surety Co. v. Nichols, 100 P. 825, 12 Ariz. 405 ; Greene v. Hereford, 95 P. 105, 12 Ariz. 85. Ark. Stone v. Suckle, 224 S. "W. 735; North American Union v. Oli- phint, 217 S. W. 1, 141 Ark., 346 ; A. L. Clark Lumber Co. v. Edwards, 216 S. W. 18, 144 Ark. 641; Kansas City Southern Ry. Co. v. Simmons, 215 S. W. 167, 140 Ark. 80 ; Ft. Smith Iron & Steel Mills v. Southern Round Bale Press Co., 213 S. W. 21, 139 Ark. 101 ; C. H. Robinson Co. v. Hudgins Prod- uce Co., 212 S. W. 305, 138 Ark. 500; Bocquin v. Theurer, 202 S. W. 845, 133 Ark. 448 ; Horton v. Huddleston, 200 S. W. 1003, 132 Ark. 396; Central Coal & Coke Co. v. Graham, 196 S. W. 940, 129 Ark. 550; Mutual Aid Union v. Blacknall, 196 S. W. 792, 129 Ark. 450; A. L. Clark Lumber Co. V. Pickett, 193 S. W. 7^3, 128 Ark. 639 ; Arnold v. Wood, 191 S. W. 960, 127 Ark. 234; St. Louis, I. M. &'S. Ry. Co. V. Howard, 188 S. W. 14, 124 Ark. 588 ; Miller v. Summers, 187 S. W. 664, 124 Ark. 599 ; Chicago, R. I. & P. Ry. Co. V. Jones, 187 S. W. 436, 124 Ark. 523; Redman v. Hudson, 186 S. W. 312, 124r Ark. 26 ; City of Little Rock V. Holden, 186 S. W. 293, 124 Ark. 599; Shearer v. Farmers' & Mer- chants' Bank, 182 S. W. 262, 121 Ark. 599 ; National Fruit Products Co. V. Garrett, 181 S. W. 926, 121 Ark. 570 ; St. Louis, I. M. & S. Ry. Co. v. Gllley, 181 S. "W. 918, 121 Ark. 507. Cal. Boa v. San Francisco-Oak- land Terminal Rys., 187 P. 2, 182 Cal. 93; Baldarachi v. Leach (App.) 186 P. 1060; Commonwealth Bonding & Casualty Ins. Co. v. Pacific Electric Ry. Co. (App.) 184 P. 29; Baillargeon V. Myers, 182 P. 37, 180 Cal. 504; Gumpel V. San Diego Electric Ry. Co., 172 P. 605, 178 Cal. 166; Gerard! v. BonofE, 172 P. 596, 178 Cal. 147 ; Tit- low V. Florence Trading Co., 170 P. 172, 35 Cal. App. 457; Bruce v. Western Pipe & Steel Co., 169 P. 660, 177 Cal. 25; Braun v. Vallade, 164' P. 904, 33 Cal. App. 279; Fiori v. Agnew, 164 P. 899, 33 Cal. App. 284; Ban- nister V. H. Jevne Co., 151 P. 546, 28 Cal. App. 133; NefC v.Mattern, 151 P. 382, 28 Cal. App. 99; Bid well v. Los Angeles & S. D. B. Ry. Co., 148 P. 197, 169 Cal. 780 ; Pacific Improve- ment Co. v. Maxwell, 146 P. 900, 26 Cal. App. 265; Price v. Northern Electric Ry. Co., 142 P. 91, 168 Cal. 173 ; In re Everts' Estate, 125 P. 1058, 163 Cal. 449; Worley v. Spreckles Bros. Commercial Co., 124 P. 697, 163 Cal. 60; Bonneau v. North Shore R. Co., 93 P. 106, 152 Cal. 406, 125 Am. St. Rep. 68 ; Central Pac. Ry. Co. v. Feldman, 92 P. 849, 152 Cal. 303; Henderson v. Los Angeles Traction Co., 89 P. 976, 150 Cal. 689. Colo. Empson Packing Co. v. Hop- kins, 182 P. 876, 66 Colo. 421 ; West- ern Investment & Land Co. v. First Nat. Bank, 172 P. 6, 64 Colo. 37; Inde- pendence CofCee & Spice Co. v. Kalk- man, 156 P. 135, 61 Colo. 98; Kim- mins V. City of Montrose, 151 P. 484, 59 Colo. 578, Ann. Cas. 191 7A, 407; Denver & R. 6. R. Co. v. A. Peterson Grocery Co., 147 P. 663, 59 Colo. 125; Finding v. Gitzen, 131 P. 1042, 24 Colo. App. 38; City and County of Denver v. Monroe, 121 P. 684, 21 Colo. 312; Denver Omnibus & Cab Co. v. Madigan, 120 P. 1044, 21 Colo. App. 13i ; Denver City Tramway Co. v. Brumley, 116 P. 1051, 51 Colo. 251; Denver City Tramway Co. v. Cowan, 116 P. 136, 51 Colo. 64 ; Denver City Tramway Co. v. Hills, 116 P. 125, 50 Colo. 328, 36 L. R. A. (N. S.) 213; Doty V. Heizer, 111 P. 67, 48 Colo. 490; Gutshall V. Cooper, 109 P. 428, 48 Colo. 160 ; Allen v. Shires, 107 P. 1072, 47 Colo. 139; Allen v. Shires, 107 P. 1070, 47 Colo. 433 ; Bonnet v. Foote, 107 P. 252, 47 Colo. 282, 28 L. R. A. (N. S.) 136; Mahler v. Belshline, 105 P. 874, 46 Colo. 603; Fidelity & De- posit Co. of Maryland v. Colorado Icei & Storage Co., 103 P. 383, 45 Colo. 443; Colorado Midland Ry. Co. v. Brady, 101 P. 62, 45 Colo. 203; Denver City Tramway Co. v. Martin, 98 P. 836, 44 Colo. 324. Coim. Hawes v. Engler, 103 A. 975, 92 Conn. 608 ; Mills v. Davis, 101 A. 657, 92 Conn. 154; H. Wales Lines Co. V. Hartford City Gaslight Co., 93 A. 129, 89 Conn. 117 ; Baston v. Con- necticut Co., 91 A. 644, 88 Conn. 494 ; Sansona v. Laraia, 90 A. 28, 88 Conn. 136; Eckler v. Wake, 88 A. 369, 87 Conn. 708 ; KoskofC v. Goldman, 85 A. 588, 86 Conn. 415; Temple v. Gilbert, 85 A. 380, 86 Conn. 335 ; Harper Ma- 895 REQUESTS OE PRAYEES FOE INSTEUCTIONS 499 chinery Co. v. Eyan-Unmack Co., 82 A. 1027, 85 Conn. 359; Stevens v. Smoker, 80 A. 788, 84 Conn. 569; Worden v. Gore-Meehan Co., 78 A. 422, 83 Conn. 642 ; Bogudsky v. Back- es, 76 A. 540, 83 Conn. 208 ; Beattie v. McMuUen, Weand & McDennott, 74 A. 767, 82 Conn. 484 ; Johnson County Sav. Bank v. Walker, 72 A. 579, 82 Conn. 24; Berman v. Kling, 71 A. 507, 81 Conn. 403; Joyce v. Joyce, 67 A. 374, 80 Conn. 88; Houghton v. City of New Haven, 66 A. 509, 79 Conn. 659. Del. Philadelphia, B. & W. R. Co. V. Buchanan, 78 A. 776, 2 Boyce, 202 ; McFeat v. Philadelphia, W. & B. R. Co., 69 A. 744, 6 Pennewill, 513. D. C. Mandes v. Midgett, 261 F. 1019, 49 App. D. C. 139; Washington & R. Ry. Co. V. La Fourcade, 48 App. D. C. 364; West Disinfecting Co. v. Plummer, 44 App. D. C. 345 ; Dixon v. Great Falls & O. D. Ry. Co., 43 App. D. C. 206; United Cigar Stores Co. v. Young, 36 App. D. C. 390 ; Baltimore & O, R. Co. V. Onorato, 35 App. D. C. 383; Sullivan v. Capital Traction Co., 34 App. D. C. 358 ; Washington, Alex- andria & Mt. Vernon Ry. Co. v. Luk- ■ ens, 32 App. D. C. 442; District of Columbia v. Duryee, 29 App. D. C. 327, 10 Ann. Cas. 675; Pickford v. Talbott, 28 App. D. C. 498; Robin- son V. Duvall, 27 App. D. C. 535. Fla. Burnett v. Soule, 83 So. 461, 78 Fla. 507; Atlanta & St. A. B. Ry. Co. v. Kelly, 82 So. 57, 77 Fla. 479; Winfield v. Truitt, TO So. 775, 71 Fla. 38; Atlantic Coast Line R. Co. v. Wallace, 63 So. 583, 66 Fla. 321 ; Lou- isville & N. R. Co. V. Croxton, 58 So. 369, 63 Fla. 223; Escambia County Electric Light & Power Co. v. Suther- land, 55 So. 83, 61 Fla. 167; Plorala Sawmill Co. v. Britt-Carson Shoe Co., 47 So. 924, 56 Fla. 301 ; Clary v. Isom, 47 So. 919, 56 Fla. 236; Jacksonville Electric Co. v. Hellenthal, 47 So. 812, 56 Fla. 443; Florida East Coast Ry. Co. V. Welch, 44 So. 250, 53 Fla. 145, 12 Ann. Cas. 210; Atlantic Coast Line R. Co. V. Crosby, 43 So. 318, 53 Fla. 400; Jacksonville Electric Co. v. Schmetzer, 43 So. 85, 53 Fla. 370; Jacksonville Electric Co. v. Sloan, 42 So. 516, 52 Fla. 257. Ga. Melvin v. Askew, 100 S. E. 49, 24 Ga. App. 164; Fay v. Burton, 95 S. E. 224, 147 Ga. 648; Union Bank- ing Co. V. Jenkins, 94 S. B. 998, 147 Ga. 573; Simmons v. Lanford, 94 S. E. 907, 21 Ga. App. 686 ; Peterson v. Mc- Allister, 93 S. E. 524, 21 Ga. App. 48; Seaboard Air Line Ry. v. Hollis, 93 S. E. 264, 20 Ga. App. 555 ; Chamblee V. Farmers' & Merchants' Bank, 93 S. E. 239, 20 Ga. App. 527 ; Bradley v. Lithonia & A. M. Ry. Co., 92 S. E. 539, 147 Ga. 22; Powell v. Berry, 89 S. E. 753, 145 Ga. 696, L. R. A. 1917A, 306; Shockley v. Smith, -87 ^. E. 671, 144 Ga. 507; La FoUette Iron Co. V. Wiley, 85 S. E. 828, 143 Ga. 552; Fambrough v. De Vane, 82 S. E. 249, 141 Ga. 794; Hill v. Duke, 77 S. E. 584, 139 Ga. 508 •; Exchange Nat. Bank of Fitzgerald v. Henderson, 77 S. E. 36, 139 Ga. 260, 51 L. R. A. (N. S.) 549; Seaboard Air Line Ry. v. Gnann & De Loach, 75 S. B. 611, 138 Ga. 536; Columbus R. Co. v. Asbell, 70 S. E. 1016, 136 Ga. 166 ; Central of Georgia Ry. Co. v. Ray, 65 S. E. 281, 133 Ga. 126; Southern Ry. Co. v. Brock, 64 S. B. 1083, 132 Ga. 858; McGee v. Young, 64 S. B. 689, 132 Ga. 606; Savannah Electric Co. v. Jackson, 64 S. B. 680, 132 Ga. 559. Idaho. John V. Farwell Co. \. Craney, 157 P. 382, 29 Idaho, 82; Tucker v. Palmberg, 155 P. 981, 28 Idaho, 693; Woodland v. Portneuf Marsh Valley 'Irr. Co., 146 P. 1106, 26 Idaho, 789; Tilden v. Hubbard, 138 P. 1133, 25 Idaho, 677 ; Breshears V. Callender, 131 P. 15, 23 Idaho, 348 ; Maloney v. Winston Bros. Co., Ill P. 1080, 18 Id'aho, 740, 47 L. R. A. (N. S.) 634 ; Roseborough v. Whittington, 96 P. 437, 15 Idaho, 100; Younie v. Blackfoot Light & Water Co., 96 P. 193, 15 Idaho, 56. 111. Sullivan v. William Ohlhav- er Co., 126 N. E. 191, 291 111. 359; People V. Karpovich, 123 N. E. 324, 288 111. 268 ; Helneke v. Chicago Rys. Co., 116 N. E. 761, 279 111. 210, af- firming judgment 199 111. App. 399 ; Citv of East St. Louis v. Vogel, 114 N. E. 941, 276 111. 490 ; Hartrick v. Hartrick, 112 N. E. 364, 272 111. 613 ; BqII v. Toluca Coal Co., 112 N. E. 311, 272 111. 576; Korn v. Chicago Rys. Co., Ill N. E. 85, 271 111. 329, affirming judgment 191 111. App. 498 ; City of Kankakee v. Illinois Cent. R, 499 INSTRUCTIONS TO JURIES 896 Co., 105 N. B. 731, 263 111. 589 ; Gib- bons V. Aurora, E. & C. R. Co., 104 N. E. 1063, 263 111. 266, afflrming iudg- ment 177 111. App. 572; Newell v. Cleveland, C, C. & St. L. Ey. Co., 104 N. E. 223, 261 III. 505, reversing judg- ment 179 111. App. 497 ; Grannon v. Donk Bros., Coal & Coke Co., 102 N. E. 769, 259 111. 350, afflrming judgment 173 111. App. 395 ; Loescher v. Consol- idated Coal Co., 102 N. E. 196, 259 111. 126, affirming judgment 173 111. App. 526 f Kellan v. Kellan, 101 N. E. 614, 258 111. 256; Doyle v. Doyle, 100 N. E. 950, 257 111. 229; Inlet Swamp Drainage Dist. v.' Anderson, 100 N. E. 909, 257 111. 214; Shella- barger Elevator Co. v. Illinois Cent. R. Co., 212 111. App. 1 ; Yates v. Phil- lips, 211 111. App. 643; Brautigan v. Union Overall Laundry & Supply Co., 211 111. App. 356 ; Poland v. Supreme Tribe of Ben Hur, 211 111. App. 176 ; McCormick v. Decker, 204 111. App. 554. lad, Haskell & Barker Car Co. v. Erickson (App.) 128 N. B. 466 ; Walk- er Hospital V. Pulley (App.) 127 N. E. 559 ; Morgan v. Winship (App.) 126 N. E. 37; Lake Erie & W. R. Co. V. Douglas (App.) 125 N. B. 474; Chesapeake & O. Ry. Co. v. Perrj (App.) 125 N. B. 414; Terre Haute, I. & B. Traction Co. v. Stevenson (Sup.) 123 N. E. 785,' rehearing de- nied 126 N. E. 3; Cleveland, C, O. & St. L. Ry. Co. V. Markle, 119 N. B. 371, 187 Ind. 553, superseding opin- ion on rehearing 114 N. E. 440; In- diana Steel & Wire Co. v. Studes, 119 N, E. 2, 187 Ind. 469 ; Chicago & B. B. Co. V. Steele, 118 N. B. 824, 187 Ind. 358, rehearing denied 119 N. B. 483, 187 Ind. 358; Chicago, I. & L. Ry. Co. V. Medlock, 118 N. B. 810, 187 Ind. 224; Kawneer Mfg. Co. v. Kalter, 118 N. E. 561, 187 Ind. 99; Cleveland, C, C. & St. L. Ry. Go. v. Wise, 116 N. E. 299, 186 Ind. 316; Union Traction Co. of Indiana v. Haworth, 115 N. E. 753, 187 Ind. 451 ; Lavene v. Friedrichs, 115 N. E. 324, 186 Ind. 333, rehearing denied 116 N. B. 421, 186 Ind. 333 ; Guarantee Tire & Rubber Co. v. Vehicle Apron' & Hood Co., 115 N. E. 89, 186 Ind. 145 ; Citizens' Bank of Michigan City v. Opperman, 115 N. E. 55, 188 Ind. 212 ; American Maize Products Co. v. Widi- ger, 114 N. B. 457, 186 Ind. 227 ; City of Kokomo V. Loy, 112 N. E. 994, 185 Ind. 18, reversing judgment (App.) 110 N. B. 694; New York, C. & St, L. R. Co. V. Shields, 112 N. E. 762, 185 Ind. 704; Vandalia Coal Co. v. Coakley, 111 N. B. 426, 184 Ind. 661. Ind. T. Atoka Coal & Mining Co. V. Miller, 104 S. W. 555, 7 Ind. T. 104 ; (Ind. T. 1902) Ward v. Bass, 69 S. W. 879, 4 Ind. T. 291. Iowa. Ad'ami v. Fowler & Wilson Coal Co., 179 N. W. 422; Amett v. Illinois Cent. R. Co., 176 N. W. 322, 188 Iowa, 540; Bennett v. Atchison, T. & S. .F. Ry. Co., 174 N. W. 798 ; Bashaw-Joy Co. v. Walsh, 174 N. W. 399, 187 Iowa, 574 ; Fuller v. Illinois Cent. R. Co., 173 N. W. 137, 186 Iowa, 686 ; Turner v. Brien, 167 N. W. 584, 184 Iowa, 320, 3 A. L. R. 1585 ; All^n v. City of Ft. Dodge, 167 N. W. 577, 183 Iowa, 818; Hess v. McCardell, 166 N. W. 470, 182 Iowa, 1121 ; Smith V. Blakesburg Savings Bank, 164 N. W. 762, 182 Iowa, 1190; Schultz v. Starr, 164 N. W. 163, 180 Iowa, 1319; Hanley v. Travelers' Protective Ass'n, 161 N. W. 125 ; Hanley v. Fidelity & Casualty Co., 161 N. W. 114, 180 Iowa, 805; Clark v. Sioux County, 159 N. W. 664, 178 Iowa, 176; In re Evel- eth's WiU, 157 N. W. 257, 177 Iowa, 716; Garvey v. Boody-Holland & New, 155 N. W. 1027, l76 Iowa, 273 ; Johnston v. Delano, 154 N. W. 1013, 175 Iowa, 498; Hutchinson Purity Ice Cream Co. v. Des Moines City Ry. Co., 154 N. W. 890, 172 Iowa, 527; Ball V. Davenport, 152 N. W. 69, 170 Iowa, 33; Merchants' Transfer & Storage Co. v. Chicago, R. I. & P. Ry. Co., 150 N. W, 720, 170 Iowa, 378; Depugh V. Frazier, 149 N. W. 854, 167 Iowa, 742. Kau. Turner v. St. Louis-San Francisco Ry. Co., 189 P. 376, 106 Kan. 591; Stanly v. Buser, 185 P. 39, 105 Kan. 510, 10 A. L. R. 218; Berry v. Dewey, 172 P. 27, 102 Kan. 593; Madey v. Swift & Co., 168 P. 1105, 101 Kan. 771 ; Patton v. Union Traction Co., 167 P. 1041, 101 Kan. 388; Cox v. Chase, 163 P. 184, 99 Kan. 740; Murray v. Empire Dist. Electric Co., 162 P. 1145, 99 Kan. 507 ; Park View Hospital Co. v. Randolph 897 REQUESTS OR PRAYERS FOR INSTRUCTIONS 499 Lodge, No. 216, I. O. O. F., 162 P. 302, 99 Kan. 488; Hayes v. Nutter, 157 P. 428, 98 Kan. 75, 2 A. L. R. 365 ; Smith V. St. L. & S. F. R. Co., 148 P. 759, 95 Kan. 451 ; Thompson v. Ault- man & Taylor Mach. Co., 146 P. 1188, 94 Kan. 453; Penfleld v. Berhenke, 146 P. 1187, 94 Kan. 532 ; Leavens v. Hoover, 145 P. 877, 93 Kan. 661 ; Cul- bertson v. Sheridan, 144 P. 268, 93 ICan. 268; Martin v. City of Colum- bus, 143 P. 421, 93 Kan. 79 ; Rogers V. Kansas Co-ooerative Refining Co., .137 P. 991, 91 Kan. 351, rehearing de- nied 139 P. 1030, 92 Kan. 256; Mc- Clintiek v. Pyle, 137 P. 788, 91 Kan. 393 ; Taylor v. Atchison Gravel, Sand & Rock Co., 135 P. 576, 90 Kan. 452 ; Stroupe v. Hewitt, 133 P. 562, 90 Kan. 200; Carroll v. Kansas BufC Brick & Mfg. Co., 129 P. 196, 88 Kan. 519. Ky. JEtna Life Ins. Co. v. McCul- lagh, 215 S. W. 821, 185 Ky. 664; Chesapeake & O. Ry. Co. v. Williams' Adm'r, 200 S. W. 451, 179 Ky. 333; Chesapeake & O. Ry. Co. v. Hogg, 197 S. W. 840. 177 Ky. 425; Sovereign Camp of Woodmen of the World v. Valentine, 190 S. W. 712, 173 Ky. 182 : Kinnaird v. E. R. Spotswood & Son, 38,9 S. W. 904, 172 Ky. 612 ; Louisville & N. R. Co. V. Long, 189 S. W. 435, 172 Ky. 436 ; Spiegle v. Cincinnati, N. O. & T. P. R. Co., 185 S. W. 113S, 170 Ky. 285 ; Monongahela River Con- sol. Coal & Coke Co. v. Lancaster's Adm'r, 183 S. W. 258, 169 Ky. 24; Cincinnati, N. O. & T. P. Ry. Co. v. Murphy, 178 S. W. 1127, 166 Ky. 19 ; Cincinnati, N. O. & T. P. Ry. Co., v. Guinn, 173 S. W. 357, 163 Ky. 157; New Bell Jellico Coal Co. v. Oxendine, 160 S. W. 737, 155 Ky. 840; Ligon v. Osborn, 159 S. W. 801, 155 Ky. 328: East Tennessee Telephone Co. v. Jef- fries, l54 S. W. 1112, 153 Ky. 133; Louisville & N. R. Co. v. Woodford, 153 S. W. 722, 152 Ky. 398, rehearing denied 154 S. W. 1083, 153 Ky. 185; Jones V. Dodson's Ex'rs, 152 S. W. 559, 151 Ky. 492 ; City of Carlisle v. Campbell, 151 S. W. 673, 151 ICy. 279 ; Tyler v. First Nat. Bank, 150 S. W. 665, 150 Ky. 515 ; Sizemore v. Nantz, 149 S. W. 1126, 149 Ky. 819; Chesa- peake & O. Ry. Co. V. Booth, 148 S. W. 61, 149 Ky. 245; Chesapeake INST.TO JUBIES— 57 & O. Ry. Co. V. Robinson, 147 S. W. 886, 149 Ky. 258. Me. Kittredge v. Frothingham, 96 A. 1063, 114 Me. 537 ; Lunge v. Ab- bott, 95 A. 942, 114 Me. 177 ; Janilus V. International Paper Co., 92 A. 653, 112 Me. 519; Miller v. Haddock, 82 A. 701, 109 M!e. 98. Md. Rasst V. Morris, 108 A. 787, 135 Md. 243; Leckie v. Clemens, lOS A. 684, 135 Md. 264 ; Maryland Casu- alty Co. V. East Baltimore Driving Ass'n, 108 A. 517, 135 Md. 105; Ep- stein V. Ruppert, 99 A. 685, 129 Md. 432; Commonwealth Bank of Balti- more V. Goodman, 97 A. 1005, 128 Mfl. 452 ; Rosman v. Travelers' Ins. Co. of Hartford, Conn., 96 A. 875, 127 Md. 689, Ann. Cas. 1918C, 1047; Patter- son V. City of Baltimore, 96 A. 458, 127 Md. 233; Bernstein v. Merekel, 95 A. 55, 126 Md. 454 ; City of Balti- more V. Ault, 94 A. 1044, 126 Md. 402; American Express Co. v. Terry, 94 A. 1026, 126 Md. 254, Ann. Cas. 1917C, 650; Ewing v. Ridei', 93 A. 409, 125 MG. 149 ; Baltimore & O. R. Co. V. Whitacre, 92 A. 1060, 124 Md. 411 ; Shoop V. Fidelity & Deposit Co. of Maryland, 91 A. 753, 124 Md. 130, Ann. Cas. 1916D, 954 ; New York, P. & N. R. Co. V. Penninsula Produce Exchange of Maryland, 89 A. 433, 122 Md. 215; Hunner v. Stevenson, 89 A. 418, 122 Md. 40; E. Beck c& Co. V. Hanline Bros., 89 A. 377, 122 Md. 68 ; Winner v. Linton, 87 A. 674, 120 Md. 276; White Automobile CO. V. Dorsey, 86 A. 617, 119 Md. 251; Smith V. Brown, 86 A. 609, 119 Md. 236 ; ' Board of Oom'rs of Howard County V. Pindell, 85 A. 1041, 119 Md. 69. Mass. Betts v. Rendle, 128 N. E. 790, 236 Mass. 441 ; Coyne v. Maniat- ty, 126 N. E. 377, 235 Mass. 181; Clapp V. American Express Co.; 125 N. E. 162, 234 Mass. 174; Hones v. Bay State St. Ry. Co., 125 N. E. 151, 234 Mass. 82 ; Morrissey v. Connecti- cut Valley St. Ry. Co., 124 N. E. 435, 233 Mass. 554; McNeil v. Middlesex - & B. St. Ry. Co., 123 N. E. 676, 233 Mass. 254; Chaplin v. Brookline Taxi Co., 119 N. E. 650, 230 Mass. 155; McLellan v. Fuller, 115 N. E. 481, 226 Mass. 374 ; Nye v. Louis K. §499 INSTRUCTIONS TO JURIES 898 Liggett Co., 113 N. E. 201, 224 Mass. 401; Brereton v. Milford. & U. St. Ry. Co., Ill N. B. 715, 223 Mass. 130; Altaville v. Old Colony St. Ry. Co., 110 N. B. 970, 222 Mass. 322; Levesque v. Charlton Mills, 110 N. E. 307, 222 Mass. 305 ; Shea v. American Hide & Leather Co., 109 N. E. 158, 221 Mass. 282; Dunster v. Coward, 108 N. E. 1085, 221 Mass. 339 ; Ken- nedy V. Hub Mfg. Co., 108 N. E. 932, 221 ,Mass. 13©; Donnelly v. Harris, 107 N. E. 435, 219 Mass. 466; Man- ley V. Bay State St. Ry. Co., 107 N. E. 409, 220 Mass. 124; Nicholson v. Feindel„ 107 N. E. 353, 219 Mass. 490; Dewey v. Boston Elevated Ry., 105 N. B. 366, 217 Mass. 599; Hus- sey V. HoUoway, 104 N. B. 471, 217 Mass. 100. Mich. O'Dell T. Straith, 175 N. W. 441, 208 Mich. 497; Kiowiatkow- ski V. Duluth-Superior Dredging Co., 167 N. W. 970, 201 Mich. 251 ; Simon V. Detroit United Ry., 162 N. W. 1012, 196 Mich. 586 ; Miller v. Du Val, 158 N. W. 140, 191 Mich. 386 ; Thompson v. W. W. Kimball Co., 157 N. W. 63, 190 Jiich. 579; Tiley v. Detroit tFnited Ry., 155 N. W. 728, 190 Mich. 7 ; Feist v. Root, 155 N. W. 491, 189 Mich. 595 ; Dyer v. People's Ice Co., 154 N. W. 135, 188 Mich. 202; Chis- holm V. Ann Arbor R. Co., 153 N. W. 818, 187 Mich. 214; Brown v. Mitts, 153 N. W. 714, 187 Mich. 469 ; Krolik V. Lang, 153 N. W. 686, 187 Mich. 280; Pennsylvania Rubber Co. ■i. Detroit Shipbuilding Co., 152 N. W. 1071, 186 Mich. 305 ; Great Lakes Laundry Co. V. iEtna Life Ins. Co., 151 N. W. 744, 184 Mich. 294 ; Bamlet Realty Co. v. Doff, 150 N. "W. 307, 183 Mich. 694; Showen v. J. L. Owens Co., 148 N. W. 666, 182 Mich. 264 ; Karwick v. Pick- ands, 147 N. W. 605, 181 Mich. 169; Sievers v. Barton, 146 N. W. 416, 180 Mich. 59 ; Oiva v. Calumet & Hecla Mining Co., 146 N. W. 181, 178 Mich. 045 ; Silverstone v. London Assur. Corporation, 142 N. W. 776, 176 Mich. 525 ; Galvin v. Detroit Steering Wheel & Windshield Co., 142 N. W. 742, 176 Mich. 569. Minn. Farrell v. G. O. Miller Co., 179 N. W. 566; Wellberg v. Duluth Auto Supply Co., 177 N. W. 924, 146 Minn. 29 ; McKay v. Minnesota Com- mercial Men's Ass'n, 165 N. W. 1061, 139 Minn. 192 ; Drimel v. Union Pow- er Co., 165 N. W. 1058, 139 Minn. 122 ; H. L. Elliott Jobbing Co. v. Chicago, St. P., M. & O. Ry. Co., 161 N. W. 390, 136 Minn. 138 ; Skar v. McKen- jiey, 160 N. W. 247, 135 Minn. 477; Burke v. Chicago & N. W. Ry. Co., 154 N. W. 900, .131 Minn. 209; Duer v. Giagnon, 152 N. W. 880, 129 Minn. 517 ; Klemik v. Henricksen Jewelry Co., 151 N. W. 203, 128 Minn. 490; Gronlund v. Cudahy Packing Co., 150 N. W. 176, 127 Minn. 515; Fairchild v. Fleming, 147 N. W. 434, 125 Minn. 431 ; Pierson v. Modern Woodmen of America, 145 N. W. 806, 125 Minn. 150; Benson v. Lehigh Valley Coal Co., 144 N. W. 774, 124 Minn. 222, 50 L. R. A. (N. S.) 170 ; Obert v. Board of Commerce of Otter Tail County, 141 N. W. 810, 122 Minn. 20 ; Johnson V. Scott, 138 N. W. 694, 119 Minn. 470 ; Millman v. Drake & Stratton Co., 137 N. W. 300, 119 Minn. 124; Evans v. Drake & Stratton Co., 137 N. W. 189, 119 Minn. 55 ; Carleton County Farm- ers' Mut. Fire Ins. Co. v. Foley Bros., 134 N. W. 309, 117 Minn. 59, 38 L. R. A. (N. S.) 175 ; Bloomquist v. Minne- apolis Furniture Co., 127 N. W. 481, 112 Minn. 143 ; Campbell v. Duluth & N. E. Ry. Co., 127 N. W. 413, 127 Minn. 410. Miss. Yazoo & M. V. R. Co. v. Dees, 83 So. 613, 121 Miss. 439 ; Gulf & S. I. R. Co. V. Meyers, 75 So. 244, 114 Miss. 458 ; Yazoo & M. V. R. Co. V. Walls, 70 So. 349, 110 Miss. 256; Illinois Cent. R. Co. v. Nixon, 68 So. 466, 109 Miss. 308; Reid v. Yazoo & M. V. R. Co., 47 So. 670, 94 Miss. 639. Mo. Duffy V. Kansas City Rys. Co. (App.) 217 S, W. 883; Robertson V. Kochtitzky (App.) 217 S. W. 543; Fore v. Rodgers (App.) 216 S. W. 566 ; Berkshire v. Holcker, 210 S. W. 556, 202 Mo. App. 433; Cunningham v. Chicago & A. R. Co., 215 S. W. 5; Argeropoulos v. Kansas City Rvs. Co., 212 S. W. 369. 201 Mo. App. 287; Hunt V. City of St. Louis, 211 S. W. 673, 278 Mo. 213; Miller v. Lloyd, 204 S. W. 257, 275 M'o. 35; City of Kennett v. Katz Const. Co., 202 S. W. 558, 273 Mo. 279; Hoyt v. Kansas City Stockyards of Missouri, 188 S. W. 106; Trebbe v. American Steel 899 REQUESTS OR PRAYERS FOR INSTRUCTIONS §499 Foundries, 185 S. W. 179; Moore v. King, 178 S. W. 124 ; City of Spring- field V. Oweu, 170 S. W. 1118, 262 Mo. 92 ; Holzemer v. Metropolitan St. Ry. Co., 169 S. W. 102, 261 Mo. 379; Rutledge v. Swinney, 169 S. W. 17, 261 Mo. 128 ; Springfield Crys- tallized Egg Co. v. Springfield Ice & Refrigerating Co., 168 S. W. 772, 259 Mo. 664; Bimmerle v. Langdeau, 167 S. W. 532, 258 Mo. 202; Gentry v. Wabash R. Co., 156 S. W. 27, 172 Mo. App. 6S8; Stricklen v. Combe Print- ing Co., 155 S. W. 829, 249 Mo. 614 ; Benton v. City of St. Louis, 154 S. W. 473, 248 Mo. 98. Mont. Daniels v. Granite Bimetal- lic Consolidated Mining Co., 184 P. S36, 56 Mont. 284; Stokes v. Long, 159 P. 28, 52 Mont. 470; Wallace v. Chicago, M. & P. S. Ry. Co.', 157 P. 955, 52 Mont. 345; Chilcott v. Rea, 155 P. 1114, 52 Mont. 134; Murray V. City of Butte, 151 P. 1051, 51 Mont 258 ; Blaustein v. Pincus, 131 P. 1064, 47 Mont. 202, Ann. Oas. 1915G, 405; Vasby v. United States Gypsum Co., 128 P. 606, 46 Mont. 411 ; Mattison v. Connerly, 126 P. 851, 46 Mont. 103; Heitman v. Chicago, M. & St. P. Ry. Co., 123 P. 401, 45 Mont. 406; Mc- Crimmon v. Murray, 117 P. 73, 43 Mont. 457 ; Longpre v. Big Blaekfoot Milling Co., 99 P. 131, 38 Mont. 99; Hagerty v. Montana Ore Purchasing Co., 98 P. 643, 38 Mont. 69, 25 L. R. A. (N. S.) 356. Neb. Britt v. Omaha Concrete Stone Co., 156i N. W. 497, 99 Neb. 300 ; HuxoU V. Union Pac. R. Co., 155 N. W. 900, 99 Neb. lYO ; Welsh v. City of South Omaha, 152 N. W. 302, 98 Neb.- 148 ; Dore v. Omaha & C. B. St. R. Co., 149 N. W. 792, 97 Neb. 250; Cole V. Gerstenberger, 148 N. W. 79, 96 Neb. 451; Warner v. City of Wayne, 146 N. W. 934, 95 Neb. 682; Bethel v. Pawnee County, 145 N. W. 363, 95 Neb. 203 ; Johnson v. Ish, 133 N W. 201, 90 Neb. 173 ; Blado v. Dra- per, 132 N. W. 410, 89 Neb. 787; Bradstreet v. Grand Island Banking Co., 131 N. W. 956, 89 Neb. 590; Brown v. Chicago, B. & Q. R. Co., 130 N W 265, 88 Neb. 604; McGahey V." Citizens' Ry. Co., 129 N. W. 293, 88 Neb. 218; Jeffries v. Chicago, B. & Q. Ry. Co., 129 N. W. 273, 88 Neb. .268 ; , SeTera v. Village of Battle Creek, 129 N. W. 186, 88 Neb. 127; Blair v. Kingman Implement Co., 128 N. W. 632, 87 Neb. 736; Cornell v. Haight, 127 N. W. 901, 87 Neb. 508 ; Otto V. Chicago, B. & Q. R. Co., 127 N. W. 857, 87 Neb. 503, 31 L. R. A. (N. S.) 632, 138 Am. St. Rep. 496; Quimby v. Bee Bldg. Co., 127 N. W. 118, 87 Neb. 193, 138 Am. St. Rep. 477 ; Anderson v. Carlson, 125 N. W. 157, 86 Neb. 126 ; Oarlon v. City Sav. Bank o£ Omaha, 124 N. W. 91, 85 Neb. 659 ; Suiter v. Chicago, R. I. & P. Ry. Co., 121 N. W. 113, 84 Neb. 256. Nev. Konig v. Nevada-California- Oregdn Ry., 135 P. 141, 36 Nev. 181; Burch V. Southern Pac. Co., 104 P. 225, 32 Nev. 75, Ann. Cas. 1912B, 1166; Murphy v. Southern Pac. Co., 101 P. 322, 31 Nev. 120, 21 Ann. Cas. 502. N. H. Linden v. Stone, 94 A. 963, 77 N. H. 582; Marcotte v. Maynard Shoe Co., 85 A. 284, 76 N. H. 507; Piper V. Boston & M. R. R., 72 A. 1024, 75 N. H. 228. N. J. Grybowski v. Erie R. Co., 98 A. 10S5, 89 N. J. Law, 361, affirming judgment (Sup.) 95 A. 764, 88 N. J. Law, 1; Miller v. I. P. Thomas & Son Co., 98 A. 193, 89 N. J. Law, 364 ; Parks V. Delaware, L. & W. R. Co., 92 A. 1087, 86 N. J. Law, 696, af- firming judgment (Sup.) 89 A. 983, 85 N. J. Law, 577 ; Parks v.' Dela- ware, L. & W. R. Co. (Sup.) 89 A. 983, 85 N. J. Law, 577; Danskin v. Pennsylvania R. Co., 83 A. 1000, 83 N. J. Law, 522; Armstrong v. Le- high & N. E. R. Co., 82 A. 899, 82 N. J. Law, 704 ; Schreiner v. New York & N. J. Telephone Co., 82 A. 887, 82 N. J. Law, 743; Merklinger v. Lambert, 72 A. 119, 76 N. J. Law, 806; Daggett v. North Jersey St. Ry. Co., 68 A. 179, 75 N. J. Law, 630. N. M. Jackson v. Brower, 167 P. 6, 22 N. M. 615. N. Y. Schoenherr v. Hartfield, 158 N. Y. S. 388, 172 App. Div. 294 ; Hall V. New York Telephone Co., 144 N. Y. S. 322, 159 App. Div. 53; McCherry V. Snare & Triest Co., 114 N. Y. S. 674, 130 App. Div. 241; Meltzer v. Straus, 113 N. Y. S. 583, 61 Misc. Rep. 250 ; Hanley v. Brooklyn Heights R. §499 INSTRUCTIONS TO JUEIKS 900 Co., Ill N. Y. S. 575, 127 App. Div. 355. N. C. Daniels & Cox v. Southern Distributing Co., 100 S. B. 112, 178 N. C. 15 ; Patterson v. Champion Dumber Co., 94 S. E. 692, 175 N. O. 90; Lee v. Melton, 91 S. E. 697, 173 N. C. 704; S. Sternberg & Co. v. Cro- hon & Roden Co., 90 S. B. 985, 172 N. C. 731; Cochran v. Smith, 88 S. B. 499, 171 N. C. 369 ; Medlin v. West- ern Union Telegraph- Co., 86 S. B., 366, 169 N. C. 495; Shaw v. North Carolina Public Service Corporation, 84 S. E. 1010, 168 N. C. ©11; Win- borne Guano Co. v. Plymouth Mer- cantile Co., 84 S. B. 272, 168 N. C. 223; South Atlantic Waste Co. v. Kaleigh C. & S. Ry. Co., 83 S. E. 618, 167 N. C. 340 ; Tilghman v. Seaboard Air Line R. Co., 83 S. E. 315, 167 N. C. 163 ; Steeley v. Dare Lumber Co., 80 S. B. 963, 165 N. C. 27 ; Green v. Dunn, 78 S. E. 211, 162 N. C. 340; Daniel v. Dixon, 77 S. B. 805, 161 N. C. 377 ; Southerland v. Atlantic Coast Line R. Co., 74 S. B. 102, 158 N. O. 327; State Board of Education v. Roanoke R. & Lumber Co., 73 S. B. 994, 158 N. C. 813 ; Pritchett v. South- ern Ry. Co., 72 S. E. 828, 157 N. C. 88; Kivett v. Western Union Tele- graph Co., 72 S. B. 388, 156 N. C. 296; Sanford, Chamberlain & Albers Co. V. Eubanks, 68 S. E. 219, 152 N. C. 697, 136 Am. St. Rep. 862 ; Coore v. Seaboard Air Line Ry. Co., 68 S. B. 210. 152 N. C. 702 ; Burlington Lum- ber Co. V. Southern Ry. Co., 67 S. B. 167, 152 N. C. 70. N. D. VoUmer v. Stregge, 147 N. W. 797, 27 N. D. 579; Kersten v. Great Northern Ry. Co., 147 N. W. 787, 28 N. D. 8 ; Willoughby v. Smith, 144 N. W. 79, 26 N. D. 209. Oliio. Limbaugh v. Western Ohio R. Co., 113 N. E. 687, 94 Ohio St. 12 ; McDonald & Prazier v. Schervish, 8 Ohio App. 386. Okl. Oil Fields & S. F. Ry. Co. v. Treese Cotton Co., 187 P. 201, 78 Okl. 25 ; Missouri, K. & T. Ry. Co. v. Wolf, 184 P. 765, 76 Okl. 195 ; Lusk v. Ban- dy, 184 P. 144, 75 Okl. 108; Garden V. Humble, 184 P. 104, 76 Okl. 165; Holmes v. Halstid, 183 P. 969, 76 Okl. 31; Middleton v. State, 183 P. 626, 16 Okl. Cr. 820 ; Rennie v. Gibson, 183 P. 483, 75 Okl. 282; St. Louis & S. F. Ry. Co. V. Fraser, 183 P. 478, 75 Okl. 265; Whitehead Coal Mining Co. v. Schneider, 183 P. 49, 75 Okl. 175; Citizens' Bank of Headrick v. Cit- izens' State Bank of Altus, 182 P. 657, 75 Okl. 225; Rock Island Coal Mining Co. v. Toleikis, 171 P. 17; Fowler v. Fowler, 161 P. 227, 61 OkL 280, L. R. A. 1917C, 89; Chickasha Inv. Co. V. Phillips, 161 P. 223, 58 Okl. 760; Simpson v. Mauldin, 160 P. 481, 61 Okl. 92; Davenport v. Mitchell, 155 P. 869, 56 Okl. 175; Minnetonka Oil Co. V. Haviland, 155 P. 217, 55 Okl. 43 ; Missouri, O. & G. Ry. Co. v. Davis, 154 P. 503, 54 Okl. 672; St. Louis & S. F. Ry. Co. v. Clampitt, 154 P. 40, 55 Okl. 686; Moorehead v. Dan- iels, 153 P. 623, 57 Okl. 298; Tisho- mingo Mectric Light & Power Co. v. Gullett, 152 P. 849, 52 Okl. 180. Or. Emmett v. Astoria Marine Iron Works, 192 P. 1113, 97 Or. 632 ; Marsters v. Isensee, 192 P. 907, 97 Or. 567; Caldwell v. Hosklns, 186 P. 50, 94 Or. 567; Ashmun v. Nichols, 180 P. 510, 92 Or. 223, affirming judg- ment on rehearing 178 P. 234, 92 Or. 223; Northwest Door Co. v. Lewis Inv. Co., 180 P. 495, 92 Or. 186 ; De War V. First Nat. Bank, 171 P. 1106, 88 Or. 541; Emerson v. Portland, E. & E. R. Co., 166 P. 946, 85 Or. 229; Columbia County v. Consolidated Con- tract Co., 163 P. 438, 83 Or. 251 ; Barn- hart V. North Pacific Lumber Co., 162 P. 843, 82 Or. 657 ; Brewster v. Crook County, 159 P. 1031, 81 Or. 435; Chil- ders V. Brown, 158 P. 166, 81 Or. 1, Ann. Cas. 1918D, 170 ; Nordin v. Love- gren Lumber Co., 156 P. 587, 80 Or. 140; Mackay v. Commission of Port of Toledo, 152 P. 250, 77 Or. 611; Walling v. Portland Gas & Coke Co., 147 P. 399, 75 Or. 495 ; Gekas v. Ore- gon-Washington R. & Nav. Co., 146 P. 970, 75 Or. 243; Everart v. Fischer, 145 P. 33, 75 Or. 316, judgment re- versed on rehearing 147 P. 189, 75 Or. 316; PfeifEer v. Oregon-Washington R. & Nav. Co., 144 P. 762, 74 Or. 307 ; Powder VaUey State Bank v. Hudel- son, 144 P. 494, 74 Or. 191; La Salle V. Central R. R. of Oregon, 144 P. 414, 73 Or. 203; Pilson v. Tip-Top Auto Co., 136 P. 642, 67 Or. 528. Pa. Baxter v. Philadelphia & R. 901 REQUESTS OR PRAYERS FOR INSTRUCTIONS §499 Ry. Co., 107 A. 881, 264 Pa. 467, 9 A. L,. R. 504; Guarantee Trust & Safe Deposit Co. V. Waller, 88 A. 13, 240 Pa. 575 ; Newingham v. J. C. Blair Co., 81 A. 556, 232 Pa. 511 ; Bracken V. Pennsylvania R. Co., 71 A. 926, 222 Pa. 410, 34 L. R. A. (N. S.) 790; Miller v. James Smith Woolen Ma- chinery Co., 69 A. 598, 220 Pa. 181; Person & Riegel Co. v. Lipps, 67 A. 1081, 219 Pa. 99; Dungan, Hood & Co. V. Philadelphia & R. Ry. Co., 41 Pa. Super. Ct. 269. R. I. Kirby v. Richardson, 103 A. 904; Gagnon v. Rhode Island Co., 101 A. 104, 40 R. I. 473, L. R. A. 1917E, 1047; C. C. C. Fire Hose & Rubber Co. V. Decker, 95 A. 668; Clark v. New York, N. H. & H. R. Co., 87 A. 206, 35 R. I. 479; St. Pierre v. Mc- Maugh, 86 A. 896, rehearing denied 86 A. 1055; Ralph v. Taylor, 85 A. 941; Messier v. Messier, 82 A. 996, 34 R. I. 233; White v. Almy, 82 A. 397, 34 R. I. 29 ; Cole v. Barber, 82 A. 129, 33 R. I. 414; Underwood v. Old ■Colony St. Ry. Co., 80 A. 390, 33 R. I. 319; Blake v. Rhode Island Co., 78 A. 834, 32 R. I. 213, Ann. Cas. 1912D, 852; Mohr v. Prudential Ins. Co. of America, 78 A. 554, 32 R. I. 177; Manzi v. Washburn Wire Co., 77 A. 827; J. W. Bishop Co. v. Curran & Burton, 76 A. 275, 30 R. I. 504 ; Perry V. Sheldon, 75 A. 690, 30 R. I. 426; Robinson v. Morris & Co., 73 A. 611, 30 R. I. 132; TifCany v. Morgan, 73 A. 465; Fugere v. Cook, 69 A. 555; Wilson V. New York, N. H. & H. R. Co., 69 A. 364, ,29 R. I. 146: Barber V. AUen, 68 A. 366. S. C. Standard Boiler & Plage Iron Co. V. Brock, 99 S. E. 769, 112 S. C. 323 ; Guimarin .v. Southern Life & Trust Co., 90 S. B. 319, 106 S. O. 37; Moore v. Marion Cotton Oil Co., 85 S. E. 52, 100 S. C. 499 ; Turner v. Columbia Nat. Life Ins. Co., 84 g. E. 413, 100 S. C. 121; .Kirkland v. Au- gusta-Aiken Ry. & Electric Corpora- tion, 81 S. B. 306, 97 S. C. 61 ; Tucker V. Clinton Cotton Mills, 78 S. B. 890, 95 S.. 0. 302 ; Smoothing Iron Heater Co. V. Blakely, 77 S. B. 945, 94 S. C. 224; Joyner v. Atlantic Coast Line R. Co., 74 S. B. 825, 91 S. C. 104; Brock V. J. J. Haley & Co., 70 S. E. 1011, 88 S. C. 373 ; Brown v. Northwiestern R. Co. of South Carolina, 70 S. E. 319, 88 S. C. 15; Building Supply Co. v. Jones, 69 S. E. 881, 87 S. C. 426 ; Tant V. Southern Ry. Co., 69 S. B. 158, 87 S. C. 184; Turbyfill v. Atlanta & C. Air Line Ry. Co., 68 S. E. 687, 86 S. C. 379; Martin v. Columbia Electric St. Ry., Light & Power Co., 66 S. E. 993, 84 S. C. 568 ; Auten v. Catawba Power Co., 65 S. B. 274, 84 S. C. 399, judgment modified on rehearing 66 S. B. 180, 84 S. C. 399; Crossland v. Graham, 65 S. E. 233, 83 S. 0. 228; StoufCer v. Erwin, 62 S. E. 843, 81 S. C. 541 ; J. C. Stevenson Co. v. Bethea, 61 S. E. 99, 79 S. C. 478; Southern . Ry. Co. V. Gossett, 60 S. B. 956, 79 S. C. 372; Thompson v. Seaboard Air Line By., 58 S. E. 1094, 78 S. C. 384. S. D. BUwein v. Town of Roscoe, 174 I^. W. 748, 42 S. D. 298 ; De Noma V. Sioux Palls Traction System, 162 N. W. 746, 39 S. D. 10; Klink v. Quinn, 156 N. W. 797, 37 S. D. 83 ; Roskay v: Hessenius, 153 N. W. 936, 36 S. D. 163; Hauffi & Stormo v. South Dakota Cent. Ry. Co., 147 N. W. 986, 34 S. D. 183; Davis v. C. & J. 'Michel Brewing Co., 140 N. W. 694, 31 S. D. 284; Yeager v. South Dakota Cent. Ry. Co., 140 N. W. 690, 31 S. D. 304 ; Whaley v. Vidal, 132 N. W. 248, 27 S. D. 642; Whaley v. Vidal, 132 N. W. 242, 27 S: D. 627; Snee v. Clear Lake Telephone Co., 123 N. W. 729, 24 S. D. 361 ; Comeau v. Hurley, 123 N. W. 715, 24 S. D. 275 ; McCarthy v. Fell, 123 N. W. 497, 24 S. D. 74; Miles V. Penn Mut. Ins. Co. of Philadelphia, 122 N. W. 249, 23 S. D. 400; Smith V. City of Yankton, 121 N. W. 848, 23 S. D. 352; Neilson V. Oium, 114 N. W. 691, 21 S. D. 541. Tenn. Middle Tennessee R. Co. v.- McMillan, 184 S. W. 20, 134 Tenn. 490. Tex. San Antonio & A. P. R. Co. V. McGill (Civ. App.) 222 S. W. 699 ; Wight V. Bell (Civ. App.) 218 S. W. 532 ; Lancaster v. Keebler (Civ. Af)p.) • 217 S. W. 1117 ; Buchannan v. Gribble (Civ. App.) 216 S. W. 899; Melton v. Manning (Civ. App.) 216 S. W. 488; Southwestern Portland Cement Co. v. Bustillos (Civ. -App.) 216 S. W. 268, conforming to opinion of Supreme Court (Com. App.) Bustillos v. South- western Portland Cement Co., 211 S. W. 929, which reversed (Civ. App.) §499 INSTRUCTIONS TO JURIES 902 Southwestern Portland Cement Co. v. BustlUos, 169 S. "W. 638; Moye v. Park (Civ. App.) 216 S. W. 205; Ft. Worth & D. C. R. Co. v. Courtney (Civ. App.) 214 S. W. 839; Schaff v. Hollin (Civ. App.) 213 S. W. 279 ; Tex- as Electric Ry. Co. v. Crump (Civ. App.) 212 S. W. 82T; Woftord v. Herndon (Civ. App.) 204 S. W. 353; Schaff V. Wilson (Civ. App.) 204 S. W. 251; Rachofsky v. Rachofsky (Civ. App.) 203 S. W. 1134 ; Schaub v. Ruck- er & Heartsill (Civ. App.) 203 S. W. 939; Durham v. Wichita Mill & Ele-' vator Co. (Civ. App.) 202 S. W. 138; Corpus Christl Street & Interurban Ry. Co. V. Kjellberg (Civ. App.) 201 S. W. 1032 ; Hudson v. Salley (Civ. App.) 201 S. W. 665 ; Andrews v. Rice (Civ. App.) 198 S. W. 666; St. Louis, B. & M. R. Co. V. Green (Civ. App.) 196 S. W. 555; Sherman Ice Co. v. Klein (Civ. App.) 195 S. W. 918. ' Utah. Emelle v. Salt Lake City, 181 P.266, 54 Utah, 360; Arrascada V. Silver King Coalition Mines Co., 181 P. 159, 54 Utah, 386; Urlch v. Utah Apex Mining Co., 169 P. 263, 51 Utah, 206; Eleganti v. Standard Coal Co., 168 P. 266, 50 Utah, 585; Murray Meat & Live Stock Co. v. New-House Realty Co., 155 P. 442, 47 Utah, 622 ; Hunt V. P. J. Moran, Inc., 150 P. 953, 46 Utah, 388 ; Salt Lake & U. R. Co. V. Butterfleld, 150 P. 931, 46 Utah, 431; Boyd v. San Pedro, L. A. & S. L. R. Co., 146 P. 282, 45 Utah, 449; Jensen v. Denver & R. G. R. Co., 138 P. 1185, 44 Utah, 100 ; Lindsay Land & Livestock Co. v. Smart Land & Live Stock Co., 137 P. 837, 43 Utah, 554 ; Geanakoules v. Union Portland Ce- ment Co., 126 P. 329, 41 Utah, 486; Hirahelli v. Daniels, 121 P. 966, 40 Utah, 513; Myers v. San Pedro, L. A. & S. L. R. Co., 116 P. 1119, 31 Utah, 198; Holt V. Nielson, 109 P. 470, 37 Utah, 566 ; Evans v. Oregon Short Lirie R. Co., 108 P. 638, 37 Utah, 431, Ann. Cas. 19120, 259; Speight v. Rock.y Mountain Bell Telephone Co., 107 P. 742, 36 Utah, 483 ; Wall Rice Mill. Co. v. Continental Supply Co., 103 P. 242, 36 Utah, 121, 140 Am. St. Rep. 83,5 ; In re Miller's Estate, 102 P. 996, 36 Utah, 228 ; Morris v. Ore- gon Short Line R. Co., 102 P. 629, 36 Utah, 14; Davidson v. Utah Inde- pendent Telephone Co., 97 P. 124, 3-i Utah, 249. Vt. De Nottbeck v. Chapman, 108 A. 338, 93 Vt. 378; Nemi v. Todd, 96 A. 14, 89 Vt. 502 ; Fitzgerald v. Con- nors, 92 A. 456, 88 Vt. 365 ; Green v. Stockwell, 89 A. 870, 87 Vt. 459; Lee v. PoUensby, 85 A. 915, 86 Vt. 401; Duggan v. Heaphy, 83 A. 726, 85 Vt. 515 ; Lang v. Clark, 81 A. 625, 85 Vt. 222; Blanchard v. Vermont Shade Roller Co., 79 A. 911, 84 Vt. 442; Jen- ness V. Simpson, 78 A. 886, 84 Vt. 127. Va. Nelson County v. Loving, 101 S.E. 406, 126 Va. 283; Eastern Coal & Export Corp. v. Beazley & Blan- ford, 92 S. E. 824, 121 Va. 4; City of Danville v. Lipford, 91 S. E. 168. 120 Va. 280 ; Ramsay v. Harrison, 89 S. E. 977, 119 Va. 682 ; Sutherland v. Wampler, 89 S. E. 875, 119 Va. 800; Carpenter v. Smithey, 88 S. E. 321, 118 Va. 533; Powhatan Lime Co. v. Whetzel's Adm'x, 86 S. E. 898, 118 Va. 161; Wygal v. Wilder, 86 S. B. 97, 117 Va. 896; Ney v. Wrenn, 84 S. E. 1, 117 Va. 85; Norfolk & W. Ry. Co. v. Perdue, 83 S. E. 1058; Chesa- peake & O. Ry. Co. V. Swartz, 80 S. E. 568, 115 Va. 723; Southern Ry. Co. V. Rice's Adm'x, 78 S. E. 592, 115 Va. 235; Middle Atlantic Immigra- tion Co. V. Ardan, 78 S. E. 588, 115 Va. 148; Washington- Virginia Ry. Co. v. Bouknight, 75 S. E. 1032, 113 Va. 696, Ann. Cas. 1913E, 546 ; Clinchfield Coal Corporation v. Oshorne's Adm'r, 75 S. B. 750, 114 Va. 13; Williams Print- ing Co. V. Saunders, 73 S. B. 472, 113' Va. 156, Ann. Cas. 1913B, 693; Dudley V. Lewis Shoe Co., 73 S. E. 433, 113 Va. 41; Roanoke Ry. & Electric Co. v. Carroll, 72 S. E. 125, 112 Va. 598; Virginian Ry. Co. v. Jeffries' Adm'r, 66 S. E. 731, 110 Va. 471 ; Norfolk & P. Traction Co. v. Forrest's Adm'x, 64 S. E. 1034', 109 Va. 658. Wash. Ziomko v. Puget Sound Electric Ry., 19a P. 1009, 112 Wash. 426 ; Buckley v. Massachusetts Bond- ing & Insurance Co. 192 P. 924 ; Seal V. Long, 192 P. 896, 112 Wash. 370; Johnson v. Pearson, 186 P. 667, 109 Wash. 147; McDonald v. Lawrence, 170 P. 576, 100 Wash. 215 ; Lagomar- sino V. Pacific Alaska Nav. Co., 170 P. 368, 100 Wash. 105; Gilson v. Washington Water Power Co., 161 P. 903 EEQUBSTS OR PRAYERS FOR INSTRUCTIONS §499 352, 93 Wash. 480 ; George v. Kurdy, 158 P. 965, 92 Wash. 277 ; J. L. Mott Iron Works v. Metropolitan Bank, 156 P. 864, 90 Wash. 655; Hargrave v. City of Colfax, 154 P. 824, 89 Wash. 467 ; Payzant v. Caudill, 154 P. 170, 89 Wash. 250 ; Lehtinen v. Holpa, 151 P. 829, 87 Wash. 284; Blair v. Cal- houn, 151 P. 259, 87 Wash. 154; Bag- ley V. Foley, 144 P. 25, 82 Wash. 222; Mickelson v. Fischer, 142 P. 1160, 81 Wash. 423 ; Wgodard v. Cline Lumber Co., 142 P. 475, 81 Wash. 85 ; Norton V. Pacific Power & Light Co., 140 P. 905, 79 Wash. 625; Johansen v. Pio- neer Mining Co., 137 P. 1019, 77 Wash. 421 ; Murray v. Wishkah Boom Co., 187 P. 130, 76 Wash. 605 ; Mcllwalne v. Tacoma Ky. & Power Co., 129 P. 1093, 72 Wash. 184. 'W. Va. Cain v. Kanawha Trac- tion & Electric Co., 102 S. E. 119, 85 W. Va. 434; Bartlett v. Baltimore & O. R. Co., 99 S. E. 322, 84 W. Va. 120; Pollno V. Keck, 92 S. B. 665, 80 W. Va. 426 ; Hbwes v. Baltimore & O. R. Co., 87 S. E. 456, 77 W. Va. 362 ; An- grlst V. Burk, 87 S. E. 74, 77 W. Va. 192 ; Hains v. Parkersburg, M. & I. By. Co., 84 S. E. 923, 75 W. Va. 613 ; H. C. Powell Music Co. v. Parkers- • burg Transfer & Storage Co., 84 S. E. 563, 75 W. Va. 659 ; Adklnson v. Bal- timore & O. R. Co., 83 S. E. 291, 75 W. Va. 156; Martin v. Relnlger, 82 S. E. 221, 74 W. Va. 439; Shires v. Boggess, 77 S. E. 542, 72 W. Va. 109 ; Bluefield Produce & Commission Co. V. City of Bluefleld, 77 S. E. 277, .71 W. Va. 696; Duty v. Chesapeake & O. Ry. Co., 73 S. E. 331, 70 W. Va. 14 ; Mate Creek Coal Co. v. Todd, 66 S. E. 1066, 66 W.'Va. 671; Pennington v. Gillaspie. 66 S. E. 1009, 66 W- Va. 643; Squilache v. Tidewater Coal & Coke Co., 62 S. E. 446, 64 W. Va. 337. Wis. Olson V. Laun, 174 N. W. 473, 170 Wis. 106; Scheuer v. Man- itowoc & Northern Traction Co., 159 N W. 901, 164 Wis. 333; Koenig v. Sproesser, 152 N. W. 473, 161 Wis. 8- Taylor v. Northern Coal & Dock Co., 152 N. W. 465, 161 Wis. 223, Ann. Oas. 1915C, 167 ; Oleson v. Fader, 132 N. W. 290, 160 Wis. 473, Ann. Cas. 1917D, 314; Behling v. Wisconsin Bridge & Iron Co., 149 N. W. 484, 158 Wis. 584 ; Sobek v. George H. Smith Steel Casting Co., 149 N. W. 152, 158 Wis. 517; Dixon v. Russell, 145 N. W. 761, 156 Wis. 161; PanofE v. Chica- go, M. & St. P. Ry. Co., 143 JST. W. 1070, 155 Wis. 99; Hilton v. Hayes, 141 N. W. 1015, 154 Wis. 27; Lang- owski V. Wisconsin Cent. Ry. Co., 141 N. W. 230, 153 Wis. 418; Merchants' & Manufacturers' Bank of Milwaukee V. Moeller, 140 N. W. 335, 152 Wis. 600; liemke v. Milwaukee Electric Ry. & Light Co., 136 N. W. 286, 149 Wis. 535 ; Herlltzke v. La Crosse In- terurban Telephone Co., 130 N. W. 59, 145 Wig. 185 ; Hippler v. Quandt, 129 N. W. 1099, 145 Wis. 221; Fidelity Trust Co. V. Wisconsin Iron & Wire Works, 129 N. W. 615, 145 Wis. 385 ; Mlske V. Thom, 128 N. W. 858, 144 Wis. 178; Jirachek v. Milwaukee Electric Ry. & Light Co., 121 N. W. 326, 139 Wis. 505, 131 Am. St. Rep. 1070; Gould v. Merrall Ry. & Light- ing Co., 121 N. W. 161, 139 Wis. 433 ; Ryan v. Oshkosh Gaslight Co., 120 N. W. 264, 138 Wis. 466. Wyo. Mutual Life Ins. Co. v. Summers, 120 P. 185, 19 Wyo. 441; Henderson v. Coleman, 115 P. 439, 19 Wyo. 183, rehearing denied 115 P. 1136, 19 Wyo. 183. Illustration of requests properly refused within rule. Where, in an action against a carrier for injury to a shipment of horses, the court charg- ed that for plaintiff to recover tne ju- ry must find that the carrier was neg-_ ligent and that the horses were in-' jured as the proximate result there- of, the refusal to charge that, unless the jury., believed that rough handling of the horses was due to negligence which was the proximate cause of the in.iury, no damages could be awarded on account of rough handling, was not erroneous. Gulf, O. & S. F. Ry. Co. V. Cunningham. 113 S. W. 767. 51 Tex. Civ. App. 368. Where in an action for injuries by falling through a de- fective depot seat, the court instruct- ed that plaintiff must have used ordi- nary care, and also charged on con- tributory negligence, an instruction that it was plaintiff's d'uty, before sitting, to look at the seat, and if he did not do so, or the defect was ob- vious, he was negligent was properly refused. St. Louis, I. M. & S. Ry. Co. §49.9 INSTRUCTIONS TO JURIES 904 V. Grimsley, 117 S. W. 1064, 90 Ark. 64. Where, in an action for injuries to a passenger, the court charged that it was tlie duty of the carrier to ex- ercise that degree of care for the pas- senger's personal safety which a very cautious and prudent person would exercise- 'under the same circumstanc- es, the refusal to charge that the car- rier was required to exercise the high- est degree of care that could reason- ably be exercised to protect the pas- senger from injury, was not errone- ous. Cornelison v. Ft Worth & R. G. Ry. Co., 103 S. W. 1186, 46 Tex. Civ. App. 509. An instruction, in an ac- tion for injuries to a passenger, that defend'ant was bound to exercise the highest degree of care, consistent with the operation of the railway and tak- ing into consideration the existing conditions, to prevent the injury, and that defendant- was liable for the slightest negligence, covered all the substantial features of a refused in- struction that defendant was not re- quired to exercise the highest degree of care possible to avoid the accident, but only the highest degree reason- ably practicable under the circum- stances, and' that by "highest degree of care" was meant that degree which would be exercised under like cir- cumstances by careful and experienc- ed conductors and motorraen. .Jordan V. Seattle, R. & S. Ry. Co., 92 P. 284, 47 Wash. 503. In an action against 'a carrier for injuries to an alighting passenger, where the only contribu- tory negligence claimed was that plaintiff attempted to alight ^hile the car was in motion, and the court ful- ly charged that if he did so he was negligent, it was not error to refuse a request that a slight want of ordi- nary care by plaintiff contributing to his injury would render him negli- gent. Jirachek v. Milwaukee Electric Ry. & Light Co., 121 N. W. 326, 139 Wis. 505, 131 Am. St. Bep. 1070. Where, in an action against a rail- road company for personal injuries, all the damages suffered by plaintiff were shown by the undisputed evi- dence to have been the proximate con- sequences of the injury, unless the evi- - dence raised the issue that such dam- ages were aggravated by plaintiff's failure to follow instructions given by the physician who treated hini, and such issue was sijbmitted to the jury in a charge requested by defend- ant, there was no error in refusing to charge at defendant's request on the issue whether the damages, sustain- ed were the proximate result of the injury. San Antonio & A. P. Ry. Co. v. Muecke, 105 S. W. 1009, 47 Tex. Civ. App. 380. Where a court, in an action for negligent death, charged that the damages recoverable were the damages occasioned to the estate of the decedent by his premature death, taking into consideration his age, health, occupation, earnings, abil- ity to earn, and other matters show- ing the extent of the loss, the refusal to charge that in estimating the dam- ages to decedent's estate the jury should not allow anything for deced- ent's pain and' suffering or as exem- plary damages, etc., was not errone- ous. Kelly V. Chicago, R. I. & P. Ry. Co., 114 N. W. 536, 138 Iowa, 273, 128 Am. St. Rep. 195. Wliere an instruc- tion on the issue of value of property in controversy directed that the jury might consider the return of the prop- erty for taxes as a circumstance with other circumstances in the case in de- termining the value of the property, the failure to charge that such return should be considered as an admission was not ground for a new trial. West- em & A. R. Co. V. Tate, 59 S. E. 266, ^29 Ga. 526. A requested instruction that if defendant had a mortgage on the goods of her husband, and that if the jury believed that plaintiff at- tempted to collect his notes against the husband, that he employed coun- sel and threatened to attack the mort- gage, and that thereupon defendant executed the note, then the note was a valid contract and could be enforc- ed, was fully covered by a charge that a wife may make a valid obligation in settlement of notes of her husband if they apparently constitute a prior claim against property derived from her husband and to which she has ti- tle. Sims V. Scheussler, 64 S. E. 99, 5 Ga. App. 850. In libel, where trial court charged the issue of privilege in the language of the statute, which clearly defines and enumerates the 905 REQUESTS OR PRATERS FOR INSTRTTCTIONS 499 matter made privileged thereby, a charge that defendant was not re- quired to prove its defense of priv- ilege literally, but only substantially, was properly refused. San Antonio . Light Pub. Co. V. Lewy, 113 S. W. 574, 52 Tex. Civ. App. 22. Where, in an action for injuries to an employe, the court charged that to find a verdict for the employs they must find by preponderance of the evidence that the injuries were not the result of the employe's own carelessness, or the re- sult of , the negligence of a fellow serv- ant, the refusal to charge that if the injuries were occasioned by the em- ploye's own negligence, or that of a fellow servant, the jury should render a verdict for defendant, was not er- roneous. Clifford V. Pioneer Pire- prooflng Co., sS N. E. 448, 232 111. 150. A requested charge, in an action for injuries sustained by a fali over an obstruction on a sidewalk, that plain- tiff is required to exercise ordinary care for his own safety, was covered by an instruction given that, if plain- tiffs injury was wholly or in part caused by his negligence "in failing to watch or observe his footsteps," the verdict must be for defendant. Lattimore v. Union Electric Light & Power Co.. 106 S, W. 543, 128 Mo. App. 37. Where, in an action for in- juries by falling down an unguarded cellar way in a store, the court charg- ed that defendant was bound only to use ordinary care, and, if he discharg- ed the obligation to warn plaintiff that the cellar way was open, the ju ry should find for defendant, there was no error, in denying defendant's request to charge that the mere ex- istence of the trapdoor and the cel- lar way in the way in which defend- ant maintained it was not negligence per se. Montague v. TTanson, 99 P. 1063, 38 Mont. 376. Where plaintiff in an action for negligence had made out a prima facie case, it was not er- ror to refuse to charge that the bur- den of prpving negligence on the part of one defendant was on the plain- tiff, where the court charged, not only that the jury should be satisfied that such defendant was negligent, but It must appear from all the evidence that such conclusion is established. Daggett V. North Jersey St. Ry. Co., 68 A. 179, 75 N. J. Law, 630. An in- struction, as to the burden of proof as to contributory negligence, that the jury, in determining whether defend- ant had "discharged such burden," should looli to all the evidence, whether introduced by either party, or both, is not materially different from a charge requested by defend- ant, to the effect that the jury should look to all Such evidence in determin- ing, not whether defendant had "dis- charged' the burden," but whether plaintiff was guilty of contributory negligence. Beaumont Traction Co. V. Happ, 122 S. W. 610, 57 Tex. Civ. App. 427. An instruction that, where a person deals with an agent, he must assure himself that the agent has the necessary authority in the transaction in question, sufficiently covered a re- quest that it is not sufficient to estab- lish agency that the agent had claim- ed to be such, but that it is the duty of the person dealing with the agent to ascertain the act of agency and his authority to do the particular act. Johnson v. W. H. Goolsby Lumber Co. (Tex. Civ. App.) 121 S. W. 883. Where, in an action for damages for a nuisance incident to the construc- tion and operation of a railroad, ■ the instructions only authorized a recov- ery for damages incident to the con- struction of the road alojig a strip lying between plaintiff's lots, and only in the event that such strip was not a part of a public street, defendant was not entitled to an instruction re- quiring the jury to find for defend- ant, if they were unable to separate the injuries caused by the construc- tion of the road on the strip between plaintiff's lands from the injuries caused by the construction of the road on such strip and on other lands. St. Louis, S. F. & T. Ry. Co. v. Payne, 104 S. W. 1077, 47 Tex. Civ. App 194. Where the court in its general charge restricted plaintiff's right to recover to defendant's negligence in operating a switch engine, refusal of an instruc- tion that plaintiff could not recover because of the proximity of a post to the track was properly refused. Cun- ningham V. Neal, 109 S. W^ 455, 49 Tex. Civ. App. 613. Where, in an § 499 INSTRUCTIONS TO JURIES 906 action for injuries to a child struck by a switch engine, the court left it to the jury whether there was proof that the trainmen exercised ordinary care, and might have seen the child in time to have avoided the injury, the refusal to give an instruction that, if the child was a licensee, he assum- ed the risk of dangers caused by the . proper use of the tracks and operation of trains, was not erroneous. Tar- ashonsky v. Illinois Cent.' R. Co., 117 N. W. 1074, 139 Iowa, 709. Where the court stated the nature of the mental disability to avoid a release for injury, and' that the burden was on plaintiff to establish such disabil- ity, refusal to charge that the burden was on plaintiff to show himself in- competent when the release was ex- ecuted was not erroneous. Schmidt v. Southwestern Brewery & Ice Co., 107 P. 677, 15 N. M. 232. Where, in an action for seduction, there was no evi- dence of loss of wages, an instruction that the jury could not find anything on that score, because there was noth- ing on which they could compute dam- ages, sufficiently covered a request to charge that plaintiff could not recover for any loss of his daughter's serv- ices or earnings after the date of the writ. Thiebault v. Prendergast, (R. I.) 69 A. 922. In an action for injuries to plaintiff by being struck by a street car after being thrown from his bicycle at a cross-over switch, a request to charge that, though plaintiff was guilty of negli- gence in attempting to ride over the cross-over track, if the motorman saw the peril of plaintiff in time to have stopped the car by ordinary diligence before it ran onto plaintiff, and he failed to do so, then defendant was li- able, and if the motorman, by reason- able care ought to have seen plaintiff, plaintiff was entitled to recover is sub- stantially covered by an instruction given that, if plaintiff's negligence was the proximate cause of the in- jury, he could not recover, unless de- fendant, having knowledge of plain- tiff's negligence could, by the use of ordinary care, have prevented the in- jury. Hall V. Washington Water Power Co., 89 P. 553, 46 Wash. 207. In an action against a street railroad company for injuries received while driving on the track, defendant's re- quest for a ruling that, if plaintiff intrusted the care of the horse to the driver, in order to recover she must show that he exercised due care and diligence, is properly refused, where the court instructed' that, If plaintiff had authority or control over the,driv- er, she could not recover where he was at fault, but if she had no authoritjr or control, and was under no diity to warn him, and had no rea- son to suspect want of care and skill on his part, she could recover, al- thoiigh he was at fault. Miller v. Boston & N. St. Ry. Co., 83 N. E. 990, 197 Mass. 533. In action for injury when struck by automobile, plaintiff's refused instruction' that, even if its speed was lawful and reasonable, de- fendant might be liable If injury re- sulted from his failure to keep suffi- cient lookout, was properly covered by other Instructidns that he should' have kept a lookout, and should have used ordinary care to avoid injury. Cough- lin V. Layton, 180 P. 805, 104 Kan. 752. A requested instruction, in an action for the overflow of plaintiffs' land, that, if the washing of plain- tiffs' land "was caused by the break- ing of a milldam, the verdict should be for defendant, although defendant had, by obstructing the stream, divert- ed" it towards the bank on plaintiffs' side, was substantially covered by an instruction that the verdict should be for defendant unless it had thrown dirt or other obstructions Into the stream, and thereby diverted it and caused the water to overflow the land of plaintiffs, in which case the ver- dict should be for plaintiffs. Louis- ville' & N. R. Co. V. Ponder, 104 S. W. 279, 31 Ky. Law Rep. 878. In a will contest, it was not error to refuse a charge consisting of a definition of un- due influence and a proposition as to the influence resulting from relation- ship, where the definition of undue in- fluence was fully covered by the court's general charge, since it would not be proper to repeat the one, and It was not Incumbent on the court to separate the propositions. Goodloe v. Goodloe, 105 S. W. 533, 47 Tex. Civ. App. 498. 907 REQUESTS OR PRAYERS FOR INSTRUCTIONS §499 ninstrations of requested in- stmctioiis not iritliiii rule. In det- inue for oxen which plaintiff claim- ed were sold to him by a third per- son authorized by defendant to do so, a requested charge that, though the jury might believe that he made an admission of authority, plaintiff could not recover unless the jury was rea- sonably satisfied that he in fact au- thorized the sale, was not covered by a charge that the burden of proof was on plaintiff to prove to the rea- sonable satisfaction of the jury that defendant authorized the third person to sell the steers. Boswell v. Thomp- son, 49 So. 73, 160 Ala. 306. A charge that damages in a libel case could not be awarded for injury to plain- tiff's business does not fairly cover the theory of a requested charge that plaintiff could not recover such dam- ages unless the plaintiff at such time was in the exercise of or actually per- forming such business. Age-Herald Pub. Co. V. Waterman, 81 So. 621, 202 Ala. 665. , In an action for the wrong- ful discharge of an employg under contract to act as general manager of defendant's stores, an instruction that, if the jury found and believed from the evidence that, because of emr>loy6'8 refusal to change his em- ployment to one materially different and inferior from that which he had contracted for, the keyg of the store in which his headquarters as general manager were located were demanded from and surrendered by him, the plaintiff was wrongfully discharged was not objectionable as being cover- ed by the main charge, where no ref- erence to the surrender of the keys was made in the main charge.' Wolf Cigar Stores Co. v. Kramer, 109 S. W. 990, 50 Tex. Civ. App. 411. Where, in an action against a railroad for injuries to an employ*? through a defective car step, the charge permittpd a recov- ery only on the facts and theory al- leged by plaintiff, and instructed that, unless the jury believed the facts set forth, they should find for defendant, the refusal of a charge that plaintiff alleged that he was injured by reason of the step or stirrup on the car being loose and by his attempting to get on the car by putting his foot on the stirrup, and that in so doing the stir- rup moved, and he wag Injured, and that, if the jury believed he was in- jured in any other manner than in . the manner alleged by him, the ver- dict must be for defendant, was error. El Paso & S. W. R. Co. v. O'Keefe, 110 S. W. 1002, 50 Tex. Civ. App. 579. A requested instruction that the employ- er* was only obliged to use reasonable care for the safety of the ^mployg held not sufficiently covered by an in- struction merely that the employer was not an insurer of the employe's safety. Mitchell v. T. A. Gillespie Co., 137 N. X. S. 550, 152 App. Div. 536. In an action for injuries to a servant, alleged to be dtie to the defective con- dition of a car, it was error to refuse an instruction that defendant was not an insurer of plaintiff's safety, but was obliged only to exercise rea- sonable care to provide a reasonably safe car, and was not bound to know of hidden defects not discoverable by the exercise of reasonable care, on the ground that it was covered by a given instruction that if the car was reasonably safe on the morning of the day of plaintiff's injury, and became out of repair later, so as to cause the accident, plaintiff could not recover unless defendant knew, or by the ex- ercise of reasonable care might have known, of Its defects. Cllppard v. St. I^uis Transit Co.. 101 S. W. 44, 202 Mo. 432. Where, in an action for injuries to a pedestrian falling into a drain on the side of a public high- way, there was evidence that she be- came confused and lost all sense of direction, and stumbled along in the dark without knowing where she was going and fell into the ditch, and that she knew of its existence near by, the refusal to charge that if she real- ized that she was confused, and did not know where she was going, but continued blindlv. she was guilty of contributory negligence, was reversi- ble error, though the court charged generally on contributory negligence. Hunt V. Douglass Tp., 130 N. W. 648, 165 Mich. 187. Instructions that the presumption of negligence arising from evidence that fire was communi- cated from defendant's engines was rebuttable, and might be overcome by 499 INSTRUCTIONS TO JURIES 908 principles in as favorable a form to the party making the request as the instructions offered/* although the instruction refused em- braces correct legal doctrine." proof that the engines alleged to have caused the Are were properly con- structed, and had the most approved appliances for arresting sparks, %nd were carefully operated in a skillful manner by competent employes, that defendant was not bound to use the best and most approved appliances, but was bound to exercise reasonable care in obtaining the most approved mechanical engines and appliances to prevent the escape of fire and putting them into practical -use, and that the gist of the action was negligehce, which must be sustained by proof, as defendant could not be liable for un- avoidable or unusual consequences of the proper operation of his trains, did not cover a requested charge that if the jury found defendant's servants, in operating the train in question, act- ed as reasonably prudent and careful persons having due regard of the rights of others would have acted un- der the same circumstances, defend- ant • was not negligent, and that if defendant actually used on the engine the most approved' appliances to ar- rest fire, or had exercised reasonable care and diligence to obtain and use them, defendant was not negligent In that respect, and the refusal of such request was error. Chenoweth V. Southern Pac. Co., 99 P. 86, 53 Or. 111. In action for injuries resulting from collision between automobiles, In which It was shown that a defendant, in whose car plaintiff was a passen- ger, turned to the left, a requested Instruction that driver of car of oth- er defendant could assume that a turn to the right would be made until such time as that an ordinarily pru- dent person would know otherwise, Is not covered by given Instruction in abstract terms of duty to avoid inju- ry. John V. Pierce, 178 N. W. 297, 172 Wis. 44. 14 Haman v. Preston, 173 N. W. 894, 186 Iowa, 1292 ; Fred Mercer Dry Goods Co. V. Flkes (Tex. Civ. App.) 211 S. W. 830. IB IT. S. Indianapolis & St. L. K. Co. V. Horst, 93 U. S. 291, 23 L. Ed. 898; Chicago & N, W. R. Co. v. Whit- ton, 80 U. S. (13 Wall.) 270, 20 L. Ed. 571 ; St. Louis Public Schools v. Eis- ley, 77 V. S. (10 Wall.) 91. 19 L. Ed. 850; Laber v. Cooper, 74 U. S. (7 Wall.) 565, 19 L. Ed. 151 ; Jelke v. United States, 255 F. 264, 166 C. 0. A. 434. Ark. Crisman v. McDonald, 28 Ark. 8. Cal. People v. Shortrldge, 177 P. 458, 179 Cal. 507. ria. Atlantic Coast Line R. Co. v. Dees, 48 So. 28, 56 Pla. 127; Sea- board Air Line Ry. v. Scarborough, 42 So. 706, 52 Fla. 425. Ga. Henderson v. Francis, 75 Ga. 178 ; Powers v. State, 44 Ga. 209. 111. Town of Normal v. Bright, 79 N. E. 90, 223 111. 99, affirming judg- ment 125 111. App. 478; Jansen v. Grimshaw, 125 111. 468, 17 N. B. 850; Germania Fire Ins. Co. v. Hick, 125 111. 361,- 17 N. E. 792. 8 Am. St. Rep. 384; Fairbank Canning Co. v. Innes, 125 111. 410, 17 N. E. 720; Brace v. Black, 125 111. 33, 17 N. E. 66; City of Sterling v. Merrill, 124 lU. 522, 17 K. E. 6, affirming 25 111. App. 596; Keeler v. Stuppe, 86 111. 309; Prior V. White, 12 111. 261 ; Andrews v. City of White Hall, 184 111. App. 298; Chicago City Ry. Co. v. Kastrzewa, 141 111. App. 10. lud. ' Deep Vein Coal Co. v. Ward (App.) 123 N. E. 228; Cleveland. C. C. & St. L. Ry. Co. v. Schneider, 82 N. -E. 538, 40 Ind. App. 524; White v. Gregory, 126 Ind. 95, 25 N. E. 806. Iowa. Parsons v. Thomas, 6a Iowa, 319, 17 N. W. 526. Kan. Sibley v. Kansas City Cot- ton Mills Co., 116 P. 889, 85 Kan. 256 ; City of Emporia v. Schmidllng, 33 Kan. 485, 6 P. 893. Ky. Stafford v. Hussey, 33 S. W. 1115, 17 Ky. Law Rep. 1194. Md. Mason v. Poulson, 43 Md. 161 ; Philadelphia, W. & B. R. Co. v. Harper, 29 Md. 330; Baltimore & O. ,R. Co. V. Worthlngton, 21 Md. 275, 83 Am. Dec. 578; Pettigrew v. Bar- 909 EEQUESTS OR PEATEES FOE INSTRUCTIONS § 499 The above rule applies in criminal prosecutions,^* and in a crim- num, 11 Md. 434, 69 Am. Dee. 212; Mutual Safety Ins. Co. v. Cohen, 3 Gill, 459, 43 Am. Dec. 341. Mich. Westra v. Westra's Estate, 101 Mich. 526, 60 N. W. 55; Ander- son V. Walter, 34 Mich. 113. Mo. Levering v. Union Transp. & Ins. Co., 42 Mo. 88, 97 Am. Dec. 320; Bay V. Sullivan, 30 Mo. 191 ; Car- roll V. Paul's Adta'r, 19 Mo. 102; Young V. White, 18 Mo. 93; Phillips V. Smoot, 15 Mo. 598; Pond v. Wy- man, 15 Mo. 175 ; Flynn v. St. Ix)uis & S. F. Ry. Co., 43 Mo. App. 424; Teichman Commission Co. v. Ameri- can Bank, 35 Mo. App. 472. / Neb. Campbell v. Holland, 22 Neb. 587, 35 N. W. 871 ; Hitchcock v. Hasfe- ler, 16 Neb. 467, 20 N. W. 396. N. J. Smith V. Irwin, 51 N. .1. Law (22 Vroom) 507, 18 A. 852, 14 Am. St. Eep. 699. N. Y. Garbaczewski v. Third Ave. R. Co., 5 App. Div. 186, 39 N. Y. S. 33. N. C. Muse V. Seaboard Air Line Ry., 63 S. E. 102, 149 N. C. 443, 19 L. R. A. (N. S.) 453; Redmond v. Stepp, 100 N. C. 212, 6 S. E. 727. Ohio. United States Home & Dower Ass'n v. Kirk, 8 Ohio Dec. 59-J, 9 Wkly. Law Bui. 48. Or. Roth V. Northern Pacific Lum- bering Co., 18 Or. 205, 22 P. 842. Tex. Blackwell v. Speer (Civ. App.) 98 S. W. 903 ; Gulf, C. & S. F. By. Co. V. Duvall, 12 Tex. Civ. App. 348, 35 S. W. 699; Bewley v. Massie (Civ. App.) 31 S. W. 1086 ; Wilson v. Lorane, 15 Tex. 492 ; Robinson v. State, 15 Tex. 311; Austin City Water Co. v. Capital Ice Co., 1 White & W. Civ. Oas. Ot. App. § 1132. Utah. Cunningham v. Union Pac. Ry. Co., 4 Utah, 206, 7 P. 795. Va. Herman v. CundifE, 82 Va. 239. 18 U. S. Sugarman v. United States, 39 S. Ct. 191, 249 U. S. 182, 63 L. Ed. 550, dismissing writ of er- ror United States v. Sugarman (D. C. Minn.) 245 F. 604 ; Humes v. Unit- ed States, 18 S. Ct. 602, 170 U. S. 210, 42 L. Ed. 1011; (C. C. A. Alaska) Stockslager v. United States, 116 F. 590, 54 O. C. A. 46; (O. C. A. Cal.) Pappens v. United States, 252 F. 55, 164 C. C. A. 167 ; Dimmick v. United States, 135 F. 257, 70 C. C. A. 141; (C. C. A. Ga.) Lamb v. U. S., 204 F. 660 ; (C. C. A. Ind.) Brown v. United States, 142 F. 1, 73 C. C. A. 187 ; (0. O. A. La.) Apgar v. United States, 255 F. 16, 166 C. C. A. 344, certiorari denied 39 S. Ct. 492, 250 U. S. 642, 63 L. Ed. 1185; Le More v. United States, 2a| F. 887, 165 C. C. A. 367, certiorari^enled 39 S. Ct. 184, 248 U. S. 586, 63 L. Ed. 434 ; Alexis v. Unit- ed States, 129 F. 60, 63 C. C. A. 502 ; (C. C. A. Mo.) Hamilton v. United States, 255 F. 511, 167 C. 0. A. 1, cer- tiorari denied 39 S. Ct. 291, 249 U. S. 610, 63 L. Ed. 800; Dr. J. H. Mc- Lean Medicine Co. v. United States, 253 F. 694, 165 C. C. A. 288; (D. C. N. J.) United States v. L« Panti, 255 F. 210, judgment affirmed Le Fanti V. United States, 259 F. 460, 170 G. C. A. 436 ; (C. C. A. N. Y.) Browne v. United States, 145 F. 1, 76 C. O. A. 31, affirming judgments United States v. Rosenthal (C. C.) 126 F. 766, and Unit- ed States V. Cohn (O. C.) 128 F. 615 ; (C. C. A. N. D.) O'Hare v. United States, 253 F. 538, 165 C. C. A. 208, certiorari denied 39 S. Ct. 257. 249 U. S. 598, 63 L. Ed. 795; (O. C. A. Ohio) Shea v. United States, 251 F. 440, 168 C. C. A. 458, writ of certio- rari denied 39 S. Ct. 132, 248 U. S. 581, 63 L. Ed. 431; (C. C. A. Okl.) Bradley v. United States, ,254 P. 289, 165 C. C. A. 57T; (C. C. A. Tex.) Rob- erts V. United States, 126 F. 897, 61 C. C. A. 427 ; (O. C. A. Wash.) Wells V. United States, 257 F. 605, 168 C. C. A, 555 ; (C. C. A. W. Va.) Showal- ter V. U. S., 260 F. 719, 171 C. C. A. 457, certiorari denied 40 S. Ct. 14, 25C( U. S. 672, 63 L. Ed. 1200. Ala. Castona v. State, 84 So. 871, 17 Ala. App. 421 ; Evans v. State, 82 So. 645, 17 Ala. App. 155 ; Id., 82 So. 625, 17 Ala. App. 141; Buckner v. State, 81 So. 687, 17 Ala. App. 57; Crawley v. State, 79 So. 804, 16 Ala. App. 545, certiorari denied Ex parte Crawley, 80 So. 893, 202 Ala. 698; Craut v. State, 79 So. 768, 16 Ala. App. 548; Barnett v. State, 79 So. 675, 16 Ala. App. 539, certiorari de- 499 INSTRUCTIONS TO JURIES 9ia inal case it is not reversible error to refuse an instruction requested nied State v. Barnett, 79 So. 6TT, 202 Ala. 191; Kuhn v. State, 79 So. 394, 16 Ala. App. 489, certiorari denied 79 So. 877, 202 Ala. 697 ; Hardley v. State, 79 So. 362, 202 Ala. 24; Tucker V. State, 79 So. 303, 202 Ala. 5 ; Griz- zard V. State, 79 So. 266, 16 Ala. App. 505; Moore v. State, 79 So. 201, 16 Ala. App. 503; Sims v. State, 41 So. 413, 146 Ala. 109 ; Pattersrai v. State, 41 So. 157, 146 Ala. 39; ®liatley v. State, 39 So. 1014, 144 Ala. 68 ; Par- risli V. State, 36 So. 1012, 139 Ala. 16 ; Rollings v. State, 34 So. 349, 136 Ala. 126 ; Jacob! v. State, 32 So. 158, 133 Ala. 1; Winter v. Same, 32 Scl 125, 133 Ala. 176 ; Ragland v. State, 27 So. 983, 125 Ala. 12 ; Liner v. State, 27 So. 438, 124 Ala. 1; Lodge v. State, 26 So. 200, 122 Ala. 107; Koch v. State, 22 So. 471, 115 Ala. 99. Ariz. Sheehy v. Territory, 80 P. 356, 9 Ariz. 269; Elias v. Territory, 76 P. 605, 9 Ariz. 1, 11 Ann. Cas. 1153. Ark. Paxton v. State, 224 S. W. 437; Jordan v. State, 217 S. W. 788, 141 Ark. 504; McCully v. State, 217 S. W. 453, 141 Ark. 450; Dean v. State, 214 S. W. 38,. 139 Ark. 433; Howard v. State, 208 S. W. 293, 137 Ark. • 111; Lind v. State, 207 S. W. 47, 137 Ark. 92 ; Barker v. State, 205 S. W. 805, 135 Ark. 404 ; Lasater v. State, 94 S. W. 59, 77 Ark. 468 ; Hol- land V. State, 84 S. W. 468, 73 Ark. 425 ; Furlow v. State, 81 S. W. 232, 72 Ark. 384. • Cal. People V. Nunes (App.) 190 P. 486; People v. Luttrell (App.) 183 P. 681 ; People v. Bonfanti, 181 P. 80, 40 Cal. App. 614; People v, Bernal, 180 P. 825, 40 Cal. App. 358; People v. Seeley, 179 P. 541, 39 Cal. App. 586; People V. Tyren, 178 P. 132, 179 Cal. 575; People v. Hartwell, 177 P. 885, 39( Cal. App. 24 ; People v. Votaw, 177 P. 485, 38 Cal. App. 714; People v. Swenson, 173 P. 934, 37 Cal. App. 262 ; People V. Castile, 86 P. 746, 3 Cal. App. 487 ; People v. Castile, 86 P. 745, 3 Cal. App. 485; People v. Cook, 83 P. 43, 148 Cal, 334 ; People v. Jailles, 79 P. 965, 146 Cal. 301; People v. Donnolly, 77 P. 177, 143 Cal. 394; People V. Huckley, 77 P. 169, 143 Cal. 375 ; People v. Amaya, 66 P. 794, 134 Cal. 531; People v. Ross, 66 P. 229, 134 Cal. 256 ; People v. Clementshaw, 59 Cal. 385. Colo. Covington v. People, 85 P. 832, 36 Colo. 183 ; Thompson v. Peo- ple, 59 P. 51, 26 Colo. 496. Conn. State v. Laudano, 51 A. 860, 74 Conn. 638. D. C. Norman v. United States, 20 App. D. C. 494 ; Howgate v. United States, 7 App. D. C. 217 ; Travers v. United States, 6 App. D. C. 450. Fla. Hall v. State, 83 So. 513, 78 Fla. 420, 8 A. L. R. 1234 ; Howard v. State, 83 So. 297, 78 Fla. 413; Long V. State, 83 So. 293, 78 Ma. 464 ; Rus- sell V. State, 82 So. 805, 78 Fla. 223 ; Miller V. State, 80 So. 314, 76 Fla. 518; Maloy v. State, 41 So. 791, 52 Fla. 101; Blanton v. State, 41 So. 789, 52 Fla. 12 ; Robinson y. State, 39 So. 465, 50 Fla. 115 ; Jordan v. State, 39 So. 155, 50 Fla. 94; Snelling v. State, 37 So. 917, 49 Fla. 34; Starke V. State, 37 So. 850, 49 Fla. 41 ; Har- mon V. State, 37 So, 520, 48 Fla. 44 ; Parnell v. State, 36 So. 165, 47 Fla. 90; Peaden v. State, 35 So. 204, 46 i Fla. 124; Sylvester v. State, 35 So. 142, 46 Fla. 166; Brown v. State, 35 So. 82, 46 Fla. 159 ; Driggers v. State, 20 So. 758, 38 Fla. 7. Ga. HoUingsworth v; State, 101 S. E. 115, 149 Ga. 512 ; Brown v. State, 100 S. F. 452, 24 Ga. App. 268 ; Phil- lips V. State, 99 S. E. 874, 149 Ga. 255 ; Wooten V. State, 99 S. E. 316, 23 Ga. App. 768; Smith v. State, 99 S. E. 142, 23 Ga. App. 541 ; Cook v. State, 97 S. E. 264, 22 Ga. App. 770; Cop- pedge V. State, 96 S. B. 1046, 22 Ga. App. 631; Darby v. State, 96 S. B. 707, 22 Ga. App. 606; Pordham v. State, 54 S. B. 694, 125 Ga. 791; White v. State, 54 S. B. 188, 125 Ga. 256; Napper v. State, 51 S. E. 592, 123 Ga. 571 ; McDuffie v. State, 49 S! E. 708, 121 Ga. 580 ; Griner v. State, 49 S. E. 700, 121 Ga. 614; Pike v. State, 49 S. E. 680, 121 Ga. 604 ; Jor- dan v.. State, 48 S. E. 352, 120 Ga. 864 ; May V. State, 47 S. B. 548, 120 Ga. 135; Johnson v. State, 47 S. E. 510, 120 Ga. 135 ; Taylor v. State, 25 S. E. 320, 97 Ga. 432. Idaho. State V. Cotterel, 86 P. 911 BEQUESTS OR PRAYERS FOE INSTRUCTIONS § 499 by the defendant, if one given for tlie state contains the same ■527, 12 Idaho, 572 ; State v. Roland, 83 P, 337, 11 Idaho, 490; State v. Rooke, 79 P. 82, 10 Idaho, 388 ; State V. Rathbone, 67 P. 186, 8 Idaho, 161 ; State V. Lyons, 64 P. 236, 7 Idaho, 530. 111. People V. Marx, 125 N. E. 719, 291 111. 40; People v. Meyer, 124 N. E. 447, 289 111. 184; People v. Fos- ter, 123 N. E. 534:, 288 111. 371; Peo- ple V. Dear, 121 N. E. 615, 286 111. 142, writ of error dismissed Dear v. People of State of Illinois, 39 S. Ot. 493, 250 U. S. 6S5, 63 L. Ed. 1182; People V. Findley, 121 N. B. 608, 286 111. 868; People v. Bopp, 120 N. E. 790, 285 111. 396 ; People v. Robertson, 120 N. E. 539, 284 111. 620, affirming judgment 210 111. App. 234 ; People v. Grove, 120 N. E. 277, 284 111. 429; Spears v. People, 77 N. E. 112, 220 111. 72, 4 li. R. A. (N. S.) 402 ; Mash V. People, 77 N. E. 92, 220 111. 86; Hoch V. People, 76 N. E. 356, 219 111. 265, 109 Am. St. Rep. 327; Parsons V. People, 75 N. E. 993, 218 111. 386 ; Donovan v. People, 74 N. E. 772, 215 111. 520 ; Kyle v. People, 74 N. E. 146, 215 111. 250 ; Delahoyde v. People, 72 N. E. 732, 212 111. 554 ; Moore v. Peo- ple, 60 N. E. 535, 190 111. 331 ; Schintz T. People, 52 N. E. 903, 178 111. 320; People V. Susmarski, 210 111. App. 233; People v. Jones, 207 111. App. 218 liid'. Bush V. State (Sup.) 128 N. E. 443; Jackson v. State, 121 N. E. 114, 187 Ind. 694; Guy v. State, 77 N. E. 855, 37 Ind. App. 601 ; Coolman V State, 72 N. E. 568, 163 Ind. 503; GInn V. State, 68 N. E. 294, 161 Ind. 292 ; Musser v. State, 61 N. E. 1, 157 Ind. 423 ; Whitney v. State, 57 N. E. 398, 154 Ind. 573; Blume v. State, 56 N. E. 771, 154 Ind. 343 ; Thrawley V. State, 55 N. E. 95, 153 Ind. 375; Cromer v. State, 52 N. E. 239, 21 Ind. App. 502; Hinshaw v. State, 47 N. B. 157, 147 Ind. 334 ; Siberry v. State, 39 N. E. 936, 149 Ind. 684 ; Richie v. State, 58 Ind. 355. Ind. T. Jennings v. United States, 53 S. W. 456, 2 Ind. T. 670. ■Iowa. State V. Schumann, 175 N. W. 75, 187 Iowa, 1212 ; State v. Athey, 108 N. W. 224, 133 Iowa, 382; State V. Linhoff, 97 N. W. 77, 121 Iowa, 632; State V. Soper, 91 N. W. 774, 118 Iowa, 1 ; State v. Maxwell, 91 N. W. 772, 117 Iowa, 482 ; State v. Comer, 90 N. W. 825 ; State v. Shunka, 89 N. W. 977, 116 Iowa, 206 ; State v. Mul- hoUand, 88 N. W. 325, 115 Iowa, 170 ; State V. Easton, 85 N. W. 795, 113 Iowa, 516, 86 Am. St. Rep. 389, revers- ed Easton v. State of Iowa, 23 S. Ct. 288, 188 U. S. 220, 47 L. Ed. 452; State V. Hamann, 85 N. W. 614, 113 Iowa, 367; State v. Petersen, 82 N. W. 329, 110 Iowa, 647 ; State v. Fog- erty, 74 N. W. 754, 105 Iowa, 32; State V. Case, 68 N. W. 434, 99 Iowa, 743. Kan. State v. Tucker, 84 P. 126, 72 Kan. 481 ; State v. Bufflnglon, 81 P. 465, 71 Kan. 804, 4 L. R. A. (N. S.) 154 ; State v. Appletoh, 78 P. 445, 70 Kan. 217 ; State v. Elliott, 64 P. 1027, 63 Kan. 879; State v. Start, 63 P. 448, 10 Kan. App. 583; State v. Tulip, 60 P. 659, 9 Kan. App. 454. Ky. Thomas v. Commonwealth, 214 S. W. 929, 185 Ky. 226; Ulrich v. Commonwealth, 205 S. W. 5S6, 181 Ky. 519; Havens v. Commonwealth, 82 S. W. 369, 26 Ky. Law Rep. 706; Alderson v. Commonwealth, 74 S. W. 679, 25 Ky. Law Rep. 32 ; Stevens v. Commonwealth, 45 S. W. 76, 20 Ky. Law Rep. 48; Temple v. Common- wealth, 14 Bush, 769, 29 Am. Rep. 442. La. State v. Le Blanc, 41 So. 105, 116 La. 822 ; State v. Aspara, 37 So. 883, 113 La. 940 ; State v. Guldor, 37 So. 622, 113 La. 727; State v. Woods, 36 So. 626, 112 La. 617; State v. Brown, 35 So. 501, 111 La. 170 ; State V. Sims, 31 So. 645, 107 La. 188 ; State V. Cain, 31 So. 300, 106 La. 708. Mass. Commonwealth v. Magoon, 51 N. E. 1082, 172 Mass. 214; Com- monwealth V. Burns, 167 Mass. 374, 45 N. E. 755 ; Commonwealth v. Dill, 156 Mass. 226, 30 N. E. 1016. Mich. People v. Rice, 173 N. W. 495, 206 Mich. 644 ; People v. Hawks, 172 N. W. 405, 206 Mich. 2,3S ; People V. Hutchings, 100 N. W. 753, 137 Mich. 527; People v. Hilliard, 77 N. W. 306, 119 Mich. 24; People v. Swartz, 76 N. W. 491, 118 Mich. 292 ; §499 INSTEUCTIONS TO JUEIBS 912 legal principle and is aptly drawn, intelligible, and pertinent." In Alabama the rule of the text is embodied in statutory form>* People V. Hughes, 74 N. W. 309, 116 Mich. 80; People v. Hare, 24 N. W. 843, 57 Mich. 505 ; People v. Marlon, 29 Mich. 31. Minn. State v. Ronk, 98 N. W. 334, 91 Minn. 419. Miss. Schrader v. State, 36 So. 385, 84 Miss. 593. Mo. State V. Gallagher (Sup.)' 222 S. W. 465 ; State v. Canton (gup.) 222 S. W. 448 ; State v. Dooms, 217 S. W. 43, 2§0 Mo. 84; State v. Conley, 217 S. W. 29, 280 Mo. 21; State v. Cole (Sup.) 213 S. W. 110; State v. Bow- man, 213 S. W. 64, 278 Mo. 492 ; State V. Mastin, 211 S. W. 15, 277 Mo. 495 ; State V. Jones, 207 S. W. 793, 276 Mo. 299; State v. Yoeum (App.) 205 S. W. 232 ; State v. Martin (Sup.) 204 S. W. 537 ; State v. Harrington, 95 S. W. 235, 198 Mo. 23, writ of error dismiss- ed 27 S. Ct. 582, 205 U. S. 483, 51 h. Ed. 890; State v. Valle, 93 S. W. 1115, 196 Mo. 29; State v. Maupln, 93 S. W. 379, 196 Mo. 164; State v. Davis, 92 g. W. 484, 194 Mo. 485, 4 L. R. A. (N. S.) 1023, 5 Ann. Cas. 1000 ; State V. Day, 87 S. W. 465, 188 Mo. 359; State V. Atchley, 84 S. W. 984, 186 Mo. 174; State v. Brown, 79 S. W. 1111, 181 Mo. 192; State v. Bauerle, 145 Mo. 1, 46 S. W. 609 ; State v. Brelt- weiser, 88 Mo. App. 648 ; State v. Baber, 11 Mo. App. 586. Mont. State v. Kahn, 182 P. 107, 56 Mont. 108; State v. Kremer, 85 P. 736, 34 Mont. 6; State v. Martin, 74 P. 725, 29 Mont. 273 ; State v. Dot- son, 67 P. 938, 26 Mont. 305 ; State v. Howell, 66 P. 291, 26 Mont. 3 ; State V. Mahoney, 61 P. 047, 24 Mont. 281 ; State V. Bowser,. 53 P. 179, 21 Mont. 133. Neb. Neal v. State, 175 N. W. 669, 104 Neb. 56 ; Williams v. State, 174 JN. W. 302, 103 Neb. 710; Reed v. State, 106 N. W. 649, 75 Neb. 509; Sweet v. State, 106 N. W. 31, 75 Neb. 263; Keeler v. State, 103 N. W. 64, 73 Neb. 441 ; Palmer v. State, 97 N. W. 235, 70 Neb. 136 ; Lamb v. State, 95 N. W. 1050, 69 Neb. 212: McCormick v. State, 92 N. W. 606, 66 Neb. 337; Rhea v. State, 88 N. W. 789, 63 Neb. 461; Argabright v. State, 87 N. W. 146, 62 isieb. 402; Coil v. State, 86 N. W. 925, 62 Neb. 15; Chapman v. State, 86 N. W. 907, 61 Neb. 888; Spaulding V. State, 85 N. W. 80, 61 Neb. 289; Smith v. State, 85 N. W. 49, 61 Neb. 296 ; Kastner v. State, 79 N. W. 713, 58 Neb. 767. Nov. State v. Burns, 74 P. 983, 27 Nev. 289 ; State v. Buraill, 71 P. 532, 27 Nev. 41; State v. Maher, 62 P. 236, 25 Nev. 465. N. H. State V. Buzzell, 59 N. H. 65. N. J. State V. Haines, 106 A. 27, 92 N. J. Law, 642. N. M. State V. Martino, 192 P. 507; State v. Goodrich, 176 P. 813, 24 N. M. 660 ; State v. Sedillo, 174 P. 985, 24 N. M. 549; State v. Starr, 173 P. 674, 24 N. M. 180; Miera v. Terri- tory, 81 P. 586, 13 N. M. 192 ; Terri- tory V. Taylor, 71 P. 489, 11 N. M. 588. N. Y. People v. Ammon, 71 N. B. 1135, 179 N. Y. 540, affirming judg- ment 87 N. Y. S. 358, 92 App. Div. 205 ; People v. Benham, 55 N. E. 11, 160 N. Y. 402 ; People v. Polstein, 171 N. Y. S. 501, 184 App. Div. 260 ; Peo- ple V. Conrad, 92 N. Y. S. 606, 102 App. Div. 566, affirmed 74 N. E. 1122, 182 N. Y. 529 ; People v. Ammon, 87 N. Y. S. 358, 92 App. Div. 205, affirm- ed 71 N. E. J.135, 179 N. Y. 540 ; Peo- ple V. Mills, 3 N. Y. Cr. R. 184. N. C. State V. Baldwm, 100 S. E. 345, 178 N. O. 693; State v. Booker, 31 S. E. 376, 123 N. C. 713. Ohio. Donald v. State, 21 Ohio Cir. Ct. B. 124, 11 O. C. D. 483. • Okl. Lamb v. State, 185 P. 1101, 16 Okl. Cr. 724; Welch v. State, 185 P. 119, 16 Okl. Cr. 513; Creek v. State, 184 P. 917, 16 Okl. Cr. 492; Johnson v. State, 183 P. 926, 16 Okl. 17 State V. Rice, 98 S. E. 432, 83 W. Va. 409. 18 Welch V. Evans Bros. Const. Co., 78 So. 850, 201 Ala. 496; Hood & Wheeler Furniture Co. v. Royal, -76 50. 965, 200 Ala. 607; Southern Ry. Co. v. Fisher, 74 So. 580, 199 Ala. 377. 913 BEQUESTS OR PRAYERS FOR INSTRUCTIONS 499 It is enough that the court by its charge concretely applies to the facts the principle of law which a party attempts to state ab- Cr. 428 ; Harding v. State, ISO P. 391, 16 Old. Cr. 47 ; Con'ley v. State, 179 P. 480, 15 Okl. Cr. 531 ; Clingan v. State, 178 P. 486, 15 Okl.. Or. 488 ; McClateh- ley V. State, 177 P. 922, 15 Okl. Cr. 448; Davis V. State, 177 P. 621, 15 Okl. Cr. 386; Lewis v. State, 174 P. 1094, 15 Okl. Cr. 1 ; Morgan v. Territory, 85 P. 718, 16 Okl. 530; Robinson v. Terri- tory, 85 P. 451, 16 Okl. 241, reversed 148 F. 830, 78 C. C. A. 520 "; Wells v. Territory, 78 P. 124, 14 Okl. 436; Queenan v. Territory, 71 P. 218, 11 Okl. 261, 01 L. R. A. 324, judgment affirmed 23 S. Ct. 762, 190 U. S. 548, 47 L. Ed. 1175; Watkins v. United States, 50 P. 88, 5 Okl. 729. Op. State V. Stickel, 176 P. 799, 99 Or. 415; State v. Gray, 79 P. 53, 46 Or. 24; State v. Eggleston, 77 P. 738, 45 Or. 346; State v. Sa'Uy, 70 P. 396, 41 Or. 366; State v. McDaniel, 56 P. 520, 39 Or. 161 ; State v. Tuck- er, 61 P. 894, 36 Or. 291, 51 L. R. A. 246; State v. Magers, 58 P. 892, 36 Or. 38 ; Statte v. Branton, 56 P. 267, 33 Or. 533. Pa. Commonwealth v. Danz, 60 A. 1070, 211 Pa. 507. R. I. State V. Quigley, 58 A. 905, 26 R. I. 263, 67 L. R. A. 322, 3 Ann. Cas. 920. S. C. State V. Ready, 96 S. E. 287, 110 S. C. 177 ; State v. Dean, 51 S. E. 524, 72 S. C. 74 ; State v. Gadsen, 50 S. E. 16, 70 S. C. 430. S. D. State V. Larson, 172 N. W. 114, 41 S. D. 553. Tex. Earnest v. State, 224 S. W. 777, 87 Tex. Cr. R. 651; Narango v. State, 222 S. W. 564, 87 Tex. Cr. R. 493; Dollar v. State, 216 S. W. 1089, 86 Tex. Cr. R. 398; McOormick v. State, 216 S. W. 871, 86 Tex. Cr. R. 366 ; Brown v. State, 215 S. W. 97, 85 Tex. Cr. R. 618; Gribble v. State, 210, S. W. 215, 85 Tex. Cr. R. 52, 3 A. L. R. 1096; Alsup v. State, 210 S. W. 195, 85 Tex. Cr. R. 36 ; Gill v. State, 208 S. W. 926, 84 Tex. Cr. R. 531; Roach V. State, 208 S. W. 520, 84 Tex. Cr. R. 471; Ice v. State, 208 S. W. 343, 84 Tex. Cr. R. 509; Rice v. State, 94 S. W. 1024, 49 Tex. Cr. R. 569 ; Inst. TO Jueies — 58 Counts V. State, 94 S. W. 220, 49 Tex. Cr. R. 329 ; Willis v. State, 90 S. W. 1100, 49 Tex. Cr. R. 139; Grant v. State, 89 S. W. 274, 48 Tex. Cr. R. 418 ; Tones v. State, 88 S. W. 217, 48 Tex. Cr. R. 363, 1 L. R. A. (N. S.) 1024, 122 Am. St. Rep. 759, 13 Ann. Cas. 455 ; Sanders v. State (Cr. App.) 85 S. W. 1147 ; Johnson v. State, 84 S. W. 824, 47 Tex. Cr. R. 523; Wright v. State, 84 S. W. 593, 47 Tex. Cr. R. 433; Bearden v. State, 83 S. W. 808, 47 Tex. Cr. R. 271; Kimberlain v. State, 82 S. W. 1043, 47 Tex. Or. R. 235 ; Becknell v. State, 82 S. W. 1039, 47 Tex. Cr. R. 240 ; Fine v. State (Cr. App.) 81 S. W. 723 ; Teague v. State, 4 Tex. App. 147. Utah. State v. Morgan, 74 P. 526, 27 Utah, 103; State v. Haworth, 68 P. 155, 24 Utah, 398 ; People v. Cal- laghan, 6 P. 49, 4 Utah, 49. Vt. State V. Warm, 105 A. 244, 92 Vt. 447, 2 A. L. R. 811. Va. Lufty v. Commonwealth, 100 S. E. 829, 126 Va. 707; Karnes v. Commonwealth, 99 S. B. 562, 125 Va. 758, 4i A. L. R. 1509; Robinson v. Commonwealth, 52 S. B. 690, 104 Va. 888; McCue v. Commonwealth, 49 S. E. 623, 103 Va. 870; Litton v. Com- monwealth, 44 S. E. 923, 101 Va. 833 ; Longley v. Commonwealth, 37 S. B. 339, 99 Va. 807. -Wash. State V. Storrs, 192 P. 984, 112 Wash. 675 ; State v. Vane\ 178 P. 456, 105 Wash. 421; State v. Vane, 177 P. 728, 105 Wash. 170; State v. Palmer, 176 P. 547, 105 Wash. 396; State V. Armstrong, 79 P. 490, 37 Wash. 51; State V. Clark, 76 P. 98, 34 Wash. 485, 101 Am. St. Rep. 1006 ; State V. Vance, 70 P. .34, 29 Wash. 435; State v. Webb, 55 P. 935, 20 Wash. 500; State v. Cushing, 50 P. 512, 17 Wash. 544. W. Va. State v. Vineyard, 101 S. E. 440, 85 W. Va. 293 ; State v. Panet- ta, 101 S. E. 360, 85 W. Va. 212; State V. Dillard, 53 S. E. 117, 59 W. Va. 197; State v. Cottrill, 43 S. E. 244, 52 W. Va. 363; State v. Clark, 41 S. E. 204, 51 W. Va. 457; State V. Sheppard, 39 S. E. 676, 49 W. Va. §500 INSTRUCTIONS TO JURIES 914 stractly in his request to warrant a refusal of the request/* and where instructions sufficiently set forth the concrete claipis of a party to give the jury a proper understanding of the issues, it is not error to refuse instructions stating the claimed facts more in detail.** § 500. Specific applications of rule The above rule has been applied in civil cases to sustain the refusal of the trial court to instruct on the issue of the abandon- ment of a contract/^ on whether a broker suing for commissions was the procuring cause of a sale,*^ on the issue of the liability of a carrier for injuries to live stock/^ on the care required to pre- vent injuries by fire,** on the care required from a master in sup- plying a safe place to work,*^ on the duty of a locomotive engi- neer to heed stop signals,** on the duty of a city to place warning signals around obstructions in the street,*'' on the liability of a land- owner for the diversion of surface water,** on the issue of remote and proximate cause,** on the issue of contributory negligence,** 582 ; State v. Staley, 32 S. E. 198, 45 W. Va. 792. Wis. Koszczyniala v. State, 104 N. W. 113, 125 Wis. 414; Murphy v. State, 102 N. W. 1087, 124 Wis. 635 ; Suckow V. State, 99 N. W. 440, 122 Wis. 156; Lowe.v. State, -96 N. W. 417, 118 Wis. 641; Bannen v. State, 91 N. W. 107, 115 Wis. 317, reversed 91 N. W. 965, 115 Wis. 817; Cornell V. State, 80 N. W. 745, 104 Wis. 527; Buel V. State, 80 N. W. 78, 104 Wis. 132. Wyo. Horn v. State, 73 P. 705, 12 Wyo. 80. 19 Condle v. Kio Grande Western Ry. Co., 97 P. 120, 34 Utah, 237. 20 Hopson V. Union Traction Co., 167 P. 1059, 101 Kan. 499. 21 Bush V. Wofford, 213 S. W. 751, 139 Ark. 330. 2 2 Thomas, V. WyckofC, 174 N. W. 26, 187 Iowa, 148. 23 Missouri Pac. R. Oo. v. Hill, 215 S. W. 676, 144 Ark. 641. 24 Northwest Door Oo. v. Lewis Iny. Co., 180 P. 495, 92 Or. 186. 2 5 Seltz V. Pelligreen Const. & Inv. Co. (Mo. App.) 215 S. W. 485. 2 8 McGlUivray v. Great Northern Ry. Co., 176 N. W. 200, 145 Minn. 51. 2 7 Emelle v. Salt Lake City, 181 P. 266, 54 Utah, 360. 2 8 Reh^uss V. Weeks, 182 P. 137, 93 Or. 25. 2!>Tillery v. Harvey (Mo. App.) 214 S. W. 246. Issue of whetlier carrier liable for injuries caused by wild and ■unruly nature of animals. In ac- tion for injuries to shipper of stock caused by a member of the train crew flashing his lantern at night before horses and mules on loading chute, causing them to rush back and tram- ple plaintiff, who was loading them on the chute, a requested charge that. If plaintiff was injured as the "sole proximate cause" of the wild and un- ruly nature and disposition of the mules and horses, verdict should be for defendant, even though defend- ant was guilty of negligence was suf- ficiently presented by a charge that If their wild and unruly nature and disposition, if any, was the sole prox- imate cause of plaintiff's injuries, to find for defendant. Galveston, H. & . S. A. Ry. Co. V. Wilson (Tex. Civ. App.) 214 .S. W. 773. 30 Ark. Central Coal & Coke Oo. V. Burns, 215 S. W. 265, 140 Ark. 147. Cal. Fernald v. Eaton & Smith, 180 P. 944, 40 Oal. App. 498. S. D. True v. Chicago & N. W. Ry. Co., 173 N. W. 642, 42 S. D. 35. Tex. Texas Power & Light Co. v. 91S REQUESTS OE PKAYBES FOB INSTRUCTIONS 500 on the effect of the knowledge by a pedestrian of defects in a street as precluding recovery for injuries caused thereby,*^ on the issue of comparative negligence,** on the question of the burden of proof,** on the question of the credibility of witnesses,** and to the refusal to give instructions defining words.*® Where the court defines proximate cause, and clearly states that contributory negligence will not defeat a recovery, unless con- current with the negligence of the defendant, it is not required to also define proximate and remote cause, with special reference to the doctrine of last clear chance.*® In criminal cases it has been held proper, on the ground of in- structions already given, to refuse instructions on the issue of self- defense or certain phases thereof,*' on the necessity for corrobora- tion of the testimony of an accomplice,** on the effect of the good character of defendant,*® on the issue of the voluntary character of an admission or confession,** on the effect of an explanation of the possession of stolen property,*^ on circumstantial evidence,** on the doctrine of reasonable doubt,** on principals and accesso- Bristow (Civ. App.) 213 S. W. 702; Texas Mectric Ry. v. Hooks (Civ. App.) 211 S. W. 654. 'Wash. Reames v. Heymanson, 186 P. 325, 109 Wash. 132. 31 Jimkins v. Inhabitants of Town of Stoneham, 125 N. E. 140, 234 Mass. 130. 32 Western & A. R. Co. v. Jarrett, 100 S. B. 231, 24 Ga. App. 175. 33 Haun V. Tally, 181 P. 81, 40 Cal. App. 585. 3* King V. Metropolitan Life Ins. Co. (Mo. App.) 211 S. W. 721. 35 Missouri Pac. B. Co. v. Carey, 212 S. W. 80, 138 Ark. 563; JStna Life Ins. Co. v. McCullagh, 215 S. W. 821, 185 Ky. 664. 88 Duprat v. Chesmore, 110 A. 305, 94 Vt. 218. 37 Ark. Smith v. State, 213 S. W. 403, 139 Ark. 356. Cal. People V. Hopper (App.) 183 P. 836. Miss. Higgins v. State, 83 So. 245, 120 Miss. 823. Tex. Bozeman v. State, 215 S. W. 319 85 Tex. Cr. R. 653; Mauney v. State, 210 S. W. 959, 85 Tex. Cr. R. 184 ; Davis v. State, 204 S. W. 652, 83 Tex. Cr. R. 539. Reasonableness of apprehension of danger. In a prosecution for murder there was no need for special charges telling the Jury that they could consider the weakened condi- tion of accused's mind in deciding whether to him the danger of death or serious bodily injury was real or apparent, the court having instructed that defendant be discharged if the conduct of the deceased produced in accused's mind a reasonable appre- hension of fear of death or serious bodily injury, viewed from accused's standpoint alone. Zimmerman v. State, 215 S. W. 101, 85 Tex. Cr. R. 630. 38 Housley v. State, 220 S. W. 460, 143 Ark. 425. 39 Le More v. United States (C. C. A. La.) 253 F. 887, 165 O. C. A, 367, certiorari denied 39 S. Ct. 184, 248 U. S. 586, 63 L. Ed. 434; Phillips v. State, 99 S. E. 874, 149 Ga. 255; State V. Jones, 123 N. W. 960, 145 Iowa, 176; People v. Mathews, 174 N. W. 532, 207 Mich. 526. ' 40 Hardin v. State, 211 S. W. 233, 85 Tex. Cr. R. 220, 4 A. L. R. 1308. 41 Vaughn V. State, 208 S. W. 527, 84 Tex. Cr. R. 483. 42 Porter v. State, 215 S. W. 201, 86 Tex. Cr. R. 23; Statp v. Turfey, 176 P. 563, 100 Wash. 5. 43 Ala. Vaughn v. State, 84 So. 879, 17 Ala. App. 383. Ark. Barker v. State, 205 S. W. § 500 INSTRUCTIONS TO JURIES 916 ries,** on the issue of included offenses,*^ and to the refusal to in- struct the jury to disregard certain matters not in evidence.** The denial of a request that evidence of the good character of the defendant may alone create a reasonable doubt is not error, where the court charges that the reputation of the accused for good character should be considered together with all the other evi- dence in the case, and that if the jury should have a reasonable doubt of his guilt he should be acquitted ; *'" and where the court charges correctly upon reasonable doubt and the presumption of innocence, it is not error to refuse to instruct that defendant is presumed to be innocent, and that that presumption goes to the jury as independent evidence.** So an instruction that each juror should adhere to his own opinion until convinced beyond a rea- sonable doubt is covered by an instruction that the jury- will not be justified in finding a verdict of guilty unless they are convinced by the evidence beyond a reasonable doubt.*' § 501. Limitations of rule Where instructions are asked by either party to a suit which correctly state the law on the issues presented and the evidence, it is error to exclude them, unless the points are fairly covered by other instructions given by the court on its own motion.^ With- in such rule it is not sufficient that the instruction requested is inferentially given in the main charge of the court,®^ or in other 805, 135 Ark. 404; Gramlich t. State, ^^ Warren v. United States (O. O. 204 S. W. 848, 135 Ark. 243. A. Okl.) 250 F. 89, 162 O. C. A. 261. Cal. People v. Epperson, 176 P. *« Hall v. State, 83 So. 513, 78 Fla. 702, 38 Cal. App. 486. 420, 8 A. L. R. 1234. ria. Witherspoon v. State, 80 So. "s People v. Epperson, 176 P. 702, 61, 76 Fla. 445 ; Street v. State, 79 38 Cal. App. 486. So. 729, 76 Fla. 217. co Struble v. Village of De Witt, 116 ' Ga. Brown v. State, 96 S. E. 435, N. W. 154, 81 Neb. 504. 148 Ga. 264. • ei state v. Williams, 169 N. W. 371, Mo. State V. Finley, 213 S. W. 184 Iowa, 1070 ; Isley v. Virginia • 463, 278 Mo. 474. Bridge & Iron Co., 55 S. E. 416, 143 N. J. State V. Eunyon, 107 A. 33, N. O. 51. 93 N. J. l>aw, 16. Instructions improperly refused Okl. Burton v. State, 185 P. 842, within rule. In an action for tiie 16 Okl. Cr. 602; Bornhelm v. State, malicious prosecution of a replevin 183 P. 514, 10 Okl. Cr. 704. suit, an instruction that the burden Pa. Commonwealth v. Boss, 110 of proof was upon plaintiff was In- A. 327, 266 Pa. 580. sufficient to justify the refusal of W, Va. State V. Panetta, 101 S. requests to charge that it was incum- E. 360, 85 W. Va. 212. bent on plaintiff to show that defend- 44 State V. Stickel, 176 P. 799, 90 ants acted without probable cause. Or. 415. Harris v. Thomas, 103 N. W. 863, 140 4= Morris V. State, 206 S. W. 82, 84 Mich. 462. Though the court instruct- Tex. Cr. R. 100. ed that plaintiff could not recover for 46 Grammer v. State, 172 N. W. 41, injuries received in a prior accident, 103 Neb. 325. the refusal to instruct that plaintiff 317 REQUESTS OK PKAYBES FOB INSTRUCTIONS §501 special requests which the court has granted,^* and a requested in- struction correctly defining the special rule of law on which a party relies, and grouping the facts to establish it, should not be refused because the jury might infer from the general charge that the requested rule is correct,®* or because the court has made a general and abstractly correct presentation of the issues involved.®* The court should not refuse, as having been already more cor- rectly given in accordance with the evidence, a correct instruction requested by the accused, when the charge given makes condi- tions that are not contained in the proffered instruction essential to an acquittal.®® Although, technically speaking, a general statement in a charge may be said to include the specific application of the law to the evidence in the case as expressed in a request, yet if it is proba- ble that the jury will not understand that the request is included could not recover for aggravation of previous injuries, not pleaded, vs^as error. Boatright v. Portland By., Light & Power Co., 135 P. 771, 68 Or. 26. 52 People V. Taleisnik, 122 N. B. 615, 225 N. T. 489, reversing judgment (Sup.) 172 N. Y. S. 912. 53 Yellow Pine Oil Co. v. Noble, 105 S. W. 318, 101 Tex. 125, affirming judgment (Civ. App.) 101 S. W. 276; El Paso & S. W. R. Co. v. Foth, 105 S. W. 322, 101 Tex. 183, reversing judgment (Civ. App.) 100 S. W. 171. 51 Western Coal & Mining Co. v. Buchanan, 102 S. W. 694, 82 Ark. 499 ; Texas & N. O. K. Co. v. McAllister (Tex. Civ. App.) 183 S. W. 82 ; Atchi- son, T. & S. F. Ry. Co. v. Hill (Tex. Civ. App.) 171 S. W. 1028; J. H. W. Steele Co. v. Dover (Tex. Civ. App.) 170 S. W. 809. Effect of general instmiction as dispensing -with specific instruc- tions. In an action on an insurance policy, the company is entitled to a special instruction as to any defect in or failure to furnish proof of loss within time, although' the court has given a general Instruction on that point. American Fire Ins. Co. v. Haynle, 120 S. W. 825, 91 Ark. 43. It is error in an action for negligence to refuse a request of defendant pointing out the concrete question of fact as to which the parties differ, but on which the existence of negli- gence is predicated, and a statement , to the jury in lieu thereof of a general rule of law in general terms is in- sufficient. Mellon V. Victor Talking Mach. Co., 73 A. 494, 77 N. J. Law, 670. In an action for failure to de- liver a telegram, where it appeared that upon the receipt of the message defendant's agent made inquiry, and learned that the plaintifC lived in the country several miles away, and im- mediately mailed the message to him, and thereafter sent a service mes- sage to the plaintiff's agent, stating that the message was not delivered, and that the party lived in the coun- try, and that he had mailed it to him, it was error for the court to refuse an instruction grouping these facts, and charging that, if the defendant's agerit in so doing exercised such care as an ordinarily prudent person would have exercised under the same cir- cumstances, the verdict should be for defendant, although the court had instructed in its main charge in gen- eral terms that, if the agent acted with such ordinary care and diligence in attempting to deliver the message as an ordinarily prudent person would have exercised, then the verdict should be for the defendant. West- ern Union Telegraph Co. v. Timmons, 125 S. W. 876, 59 Tex. Civ. App. 146. 5 6 Marshall v. State, 82 Fla. 462. 14 So. 92. § 501 INSTRUCTIONS TO JURIES 918 in the general charge, it will be error to refuse the request.®* Thus the giving of a general instruction, as required by a statute, that to recover the plaintiff must prove the material allegations of the complaint by a preponderance of the evidence, does not authorize the refusal of a particular instruction applicable to the evidence and issues,®'' and a general charge upon the issue of contributory negligence is not sufficient to warrant refusing a special charge upon the issue of assumption of risk.®* In a criminal case a pertinent charge adjusted to the particular facts relied on as a defense should be given on request, although the judge in his charge states generally the abstract principle of law applicabfe to the facts.®' The right of a party to have given an instruction presenting his theory of the case is not impaired by the fact that instructions presenting practically the same legal propositions from the viewpoint of his adversary have been given.®* In some jurisdictions under statutory provisions the court is not justified, in a criminal case, in refusing a special charge be- cause it is covered by a paragraph of the general . charge of the court.®^ I. Erroneous Requests § 502. Rule that such requests may be refused without attempt at correction It is not the duty of the court to grant a request for an instruc- tion which is incorrect or inaccurate in the form in which it is prayed.** It is therefore proper to refuse, as an entirety, an in- = Simoneau v. Keene Electric By., Ark. Newman v. Peay, 176 S. W. 100 A. 551, 78 N. H. 363, L. E. A. 143, 117 Ark. 579. 1918A, 620. D. C. Jackson v. U. S., 48 App. D. 6 7 Baltimore «& O. E. Co. v. Peck, 0. 272. 101 N. E. 674, 53 Ind. App. 281. Ga. Spillar v. Dickson, 95 S. E. c 8 Cleburne Electric & Gas Co.- v. 994, 148 Ga. 90; Macon, D. & S. E. McCoy (Tex. Civ. App.) 128 S. W. 457. Cfo. v. Joyner, 59 S. B. 902, 129 Ga. = » Stribling v. State, 65 S. E. 1068, ^83. 6 Ga Add 864 Ind. Crumrlne v. Crumrine's Es- „ ■ .. 'r A , T> ri tate, 43 N. E. 322, 14 Ind. App. 641 ; 1071^"^^'^ 10P ?\ ^9nT ^#- ^°-' Keller v. Reynolds, 40 N. E 76, 12 107 P. 317, 12 Cal. App. 207; Kemen- j^^ ^ ggg ooodwine v. State, 5 ^o I, ^™'* Dispatch Co 131 S W. j^^. App. 63, 31 N. E. 554 ; Mosier v. 73, 61 Tex. Civ. App. 631 ; Northern gt^u, 20 N. E. 752, 119 Ind. 244. Texas Traction Co. v Moberly (Tex. i„„^. ^^^^^ ^ City of Indiano- Civ. App.) 109 S. W. 483. . ■ j^, 114 n. w. 1072. 81 Snyder v. State, 40 So. 978, 145 Kan. Douglas v. Wolf, 6 Kan. 88. Ala. 33 ; Orr v. State, 23 So. 696, 117 Mass. Martineau v. National Ala. 69. Blank Book Co., 166 Mass. 4, 43 N. E. «2U. S. (C. C. Mass.) Locke v. 513. United States, Fed. Cas. No. 8,442, Mich. Brovyn v. Harris, 102 N. W. 2 Cliff. 574a. 960, 139 Mich. 372. 919 REQUESTS OR PRAYERS FOR INSTRUCTIONS 502 struction which is erroneous in part,*^ or which needs to be quali- Mont. Herrin v. Sleben, 127 P. 323, 46 Mont. 226. N. M. State V. Starr, 173 P. 674, 24 N. M. 180. N. Y. Gardner v. Clark, 17 Barb. 538; Doughty v. Hope, 3 Denio, 594. B. I. Perry v. Sheldon, 75 A. 690, ,30 R. I. 426. S, D. Grant v. Whorton, 134 N. W. 803, 28 S. D. 599. Tenn. Ralne v. State, 226 S. W. 189, 143 Tenn. 168. Tex. Turner v. Missouri, K. & T. Ry. Co. of Texas (Civ. App.) 177 S. W. 204 ; Summerhlll v. Wilkes, 133 S. W. 492, 63 Tex. Civ. App. 456; Board- man V. Woodward (Civ. App.) 118 S. W. 550; San Antonio Light Pub. Co. V. Ivewy, 113 S. W. 574, 52 Tex. Civ. App. 22. Wash. Larson v. McMillan, 170 P. 324, 99 Wash. 626. 83 U. S. Sweeney v. Erving, 33 S. Ct. 416, 228 U. S. 233, 57 L. Ed. 815, Ann. Cas. 1914D, 905, affirming judg- ment 35 App. D. C. 57, 43 L. R. A. (N. S.) 734; (C. C. A. Colo.) Liberty Bell Gold Mining Co. v. Smuggler- Union Mining Co., 203 F. 795, 122 C. C. A. 113; (C. C. A. Minn.) Chicago Great Western Ry. Co. v,. Roddy, 131 F. 712, 65 C. C. A. 470; (C. C. A. Mo.) Kercheval v. Allen, 220 F. 262, 135 C. C. A. 1 ; (C. C. A. N. J.) Buckeye Pow- der Co. V. B. I. Du Pont de Nemours Powder Co., 223 F. 881, 139 C. G. A. 319 ; Porter v. Buckley, 147 F. 140, 78 C. C. A. 138 ; (C. C. A. Ohio) Monarch Cycle Mfg. Co. v. Royer Wheel Co., 105 F. 324, 44 C. C. A. 523 ; (C. C. A. Okl.) Chicago, R. I. & P. Ry. Co. v. Hale, 176 F. 71, 99 C. C. A, 379. Ala. Dunaway v. Roden, 71 So. 70, 14 Ala. App. 501, certiorari de- nied Ex parte Dunaway, 72 So. 1019, 196 Ala. 701 ; WilUamson Iron Co. v. McQueen, 40 So. 306, 144 Ala. 265; Southern Ry. Co. v. Bradford, 40 So. 100, 145 Ala. 684; Southern Ry. Co. V. Douglass, 39 So. 268, 144 Ala. 351; United States Life Ins. Co. v. Lesser, 28 So. 646, 126 Ala. 568; Alabama State Land Co. v. Slaton, 24 So. 720, 120 Ala. 259. Ariz. Arizona Eastern R. Co. v. Bryan, 157 F. 376, 18 Ariz. 106. Ark. Kanis v. Rogers, 1,77 S. W. 413, 119 Ark. 120 ; Randleman v. Tay- lor, 127 S. W. 723, 94 Ark. 511, 140 Am. St. Rep. 141; C. H. Smith Tie & Timber Co. v. Weatherford, 121 S. W. 943, 92 Ark. 6. Cal. People v. Wong Sang Lung, 84 P. 843, 3 Cal. App. 221 ; William- son V. Tobey, 86 Cal. 497, 25 P. 65 ; Smith V. Richmond, 19 Cal. 476. Colo. Gill V. Schneider, 110 P. 62, 48 Colo. 382; Gi:eeley Irr. Co. v. Von Trotha, 108 P. 985, 48 Colo. 12 ; Allen V. Shires, 107 P. 1072, 47 Colo. 439; Allen V. Shires, 107 P. 1070, 47 Colo. 433. Conn. Urbansky v. Kutinsky, 84 A. 317, 86 Conn. 22 ; Johnson v. Con- necticut Co., 83 A. 530, 85 Conn. 438 ; Allen V. Lyness, 71 A. 936, 81 Conn. 626; Stern v. Leopold Simons & Co., 58 A. 696, 77 Conn. 150. Fla. Florida Ry. Co. v. Dorsey, 52 So. 963, 59 Fla. 260; Jacksonville Electric Co. v. Schmetzer, 43 So. 85, 53 Fla. 370. Ga. Seaboard Air Line Ry. v. Mose- ley, 85 S. E. 1021, 144 Ga. 35 ; Bush v. Fourcher, 59 S. E. 459, 3 Ga. App. 43; Roberts, Cranford & Co. v. Devane, 59 S. E. 289, 129 Ga. 604 ; City of Rome V. Sudduth, 49 S. E. 300, 121 Ga. 420 ; Thompson v. O'Connor, 41 S. E. 242, 115 Ga. 120; Grace v. McKinney, 37 S. E. 737, 112 Ga. 425. 111. Kelly V. Chicago City By. Co., 119 N. E. 622, 283 111. 640; Indiana, I. & I. R. Co. V. Otstot, 72 N. E. 387, 212 111. 429, affirming judgment 113 111. App. 37; Chicago & E. I. R. Co. v. Burridge, 71 N. E. 838, 211 111. 9, re-, versing judgment 107 111. App. 23 ; Smythe's Estate v. Evans, 70 N. E. 906, 209 111. 376, reversing judgment 108 111. App. 145 ; Nelson v. Fehd, 67 N. E. 828, 203 111. 120, affirming judg- ment 104 HI. App. 114. Ind. Howlett v. Dilts, 30 N. E. 313, 4 Ind. App. 23. Kan. Western Union Tel. Co. v. Getto-McClung Boot & Shoe Co., 61 P. 504, 9 Kan. App. 863; Kansas Ins. Co. V. Berry, 8 Kan. 159; Mayberry V. Kelly, 1 Kan. 116. Ky. Stringtown & B. Turnpike Road Co. V. Riley (Super.) 8 Ky. Law Rep. (abstract) 267. Me. National Furniture Co. v. §502 INSTRUCTIONS TO JURIES 920 fied or explained,'* although a charge on the subject of the re- Prusslan Nat. Ins. Co., 91 A. 785, 112 Me. 557; York v. Parker, 84 A. 939, 109 Me. 414. Md. F. W. Dodge Co. v. H. A. Hughes Co., 72 A. 1036, 110 Md. 374. Mass. Gardiner v. City of Brook- line, 181 Mass. 162, 63 N. E. 397; Twomey v. Llnnehan, 161 Mass. 91, 36 N. B. 590. Mich. Williams y. City of Lans- ing, 115 N. W. 961, 152 Mich. 169; Courtemanche v. Supreme Court, I. O. O. F., 98 N. W. 749, 136 Mich. 30, 64 L. R. A. 668, 112 Am. St. Rep. 345; Bedford v. Penny, 25 N. "W. 381, 58 Mich. 424 ; Weschester Fire Ins. Co. V. Barle, 33 Mich. 143. ' Minn. Hayward v. Knapp, 23 Minn. 430 ; Simmons v. St. P^ul & C. Ry. Co., 18 Minn. 184 (Gil. 168); VU- lage of Mankato v. Meagher, 17 Minn. 265 (Gil. 243) ; Dodge v. Rogers, 9 Minn. 223 (Gil. 209) ; Selden v. Bank of Commerce, 3 Minn. 166 (Gil. 108) ; Bond V. Corbett, 2 Minn. 248 (Gil. 209) ; Castner v. The Dr. Franklin, 1 Minn. 73 (Gil. 51). Miss. Doe V. King, 3 How. 125. Mo. Viles V. Viles (App.) 190 S, W. 41; Thomas v. Thomas, 186 S. W. 993 ; Fisher v. St. Louis Transit Co., 95 S. W. 917, 198 Mo. 562 ; McManus V. Metropolitan St Ry. Co., 92 S. W. 176, 116 Mo. App. 110; Howerton v. Iowa State Ins. Co., 105 Mo. App. 575, 80 S. W. 27 ; Trustees of Chris- tian University v. Hoffman, 69 S. W. 474, 95 Mo. App. 488; Lall v. Pacitlc Exp. Co., 81 Mo. App. 232. Mont. E^ord v. Drake, 127 P. 1019, 46 Mont. 314 ; Pelican v. Mutual Life Ins. Co. of New York, 119 P. 778, 44 Mont. 277. Neb. Buck v. Hogeboom, 90 N. W. 635, 2 Neb. (Unof.) 853. N.J. Max V. Kahn, 102 A. 737, 91 N. J. Law, 170; Dederick v. Central Ri. Co. of New Jersey (Sup.) 65 A. 833, 74 N. J. Law, 424; Consolidated Traction Co. v. Chenowith, 58 N. J. Law, 416, 34 A. 817. N. Y. Kenney v. South Shore Nat- ural Gas & Fuel Co., 119 N. Y. S. 363, 134 App. Div. 859; Wittleder v. Citizens' Electric Illuminating Co. of Brooklyn, 62 N. Y. S. 297, 47 App. Div. 410 ; Hodges v. Cooper, 43 N. X. 216; Keller v. New York Cent. R. Co., 24 How. Prac. 172 ; Vallance v. King, 3 Barb. 548 ; Halsey v. Rome, W. & O. R. Co., 12 N. Y. St. Rep. 319. N. C. Washington Horse Exchange v. Louisville & N. R. Co.. 87 S. E. 941, 171 N. C. 65 ; Phifer v. Commission- ers of Cabarrus County, 72 S. E. 852, 157 N. C. 150; Vanderbilt v. Brown, 39 S. E. 36, 128 N. 0. 498. Ohio. Columbus Ry. v. Connor, 27 Ohio Cir. Ct. R. 229; Holmes v. Ashtabula Rapid Transit Co., 10 O. C. D. 638. Okl. Missouri, O. & G. Ry. Co. v. Collins, 150 P. 142, 47 Oki: 761 ; Mis- souri, K. & T. Ry. Co. V. West, 134 P. 655, 38 Okl. 581 ; Continental Casual- ty Co. V. Owen, 131 P. 1084, 38 Okl. 107; Sanders v. Cline, 101 P. 267, 22 Okl. 154; Friedman v. Weisz, 58 P. 613, 8 Okl. 392. Pa. . Seifred v. Pennsylvania Rl Co., 55 A. 1061, 206 Pa. 399. S. C. McMahan v. Walhalla Light & Power Co., 86 S. E. 194, 102 S. C. 57 ; Lorenzo v. Atlantic Coast Line R. 8 4 Ala. Knowles v. Ogletree, 9S Ala. 555, 12 So. 397; Callan v. Mc- Daniel, 72 Ala. 96; Kirkland v. Trott, 66 Ala. 417 ; Godbold v. Blair, 27 Ala. 592 ; Rolston v. Langdon, 26 Ala. 660. Oal. Garlick v. Bowers, 66 Cal. 122, 4 P. 1138. HI. Coney v. Pepperdine, 38 111. App. 403. Ind. Kluse v. Sparks, 10 Ind. App. 444, 37 N. B. 1047; Rogers v. Leyden, 127 Ind. 50, 26 N. E. 210; Over v. Schiffling, 102 Ind. 191, 26 N. E. 91; Ricketts v. Harvey, 106 Ind. 564, 6 N. E. 325 ; Howard County Com'rs v. Legg, 93 Ind. 523, 47 Am. Rep. 390; Roots V. Fyner, 10 Ind. 87. Iowa. Bevan v. Hayden, 13 Iowa, 122; Keenan v. Missouri State Mut. Ins. Co., 12 Iowa, 126 ; Morrison v. Myers, 11 Iowa, 538 ; Grimes v. Mar- tin, 10 Iowa, 347; Tifield v. Adams, 3 Iowa (3 Clarke) 487. Kan. Douglas v. Wolf, 6 Kan. 88. Me. Tower v. Haslam, 84 Me. 86, 24 A. 587. Okl. Fulsom-Morris Coal & Min- ing Co. V. Mitchell, 132 P. 1103, 37 Okl; 575. 921 BEQUESTS OR PRAYERS FOB INSTRUCTIONS §502 quest should be given ;®^ it not being considered that the court is under any obHgation to reform a requested instruction, and to cast out such parts as render it improper as a whole.** Co., 85 S. B. 964, 101 S. O. 409 ; Earle V. Poat. 41 g. B. 525, 63 S. 0. 439; Ragsdale v. Southern Ry. Co., 38 S. E. 609, 60 S. C. 381; Pickens v. South •Carolina & G. E. Co., 32 S. B. 567, 54 S. C. 498 ; McGee v. Wells, 30 S. E. 602, 52 S. O. 472; Gandy v. Orient Ins. Co., 29 S. E 655, 52 S. C. 224. Tenn. Louisville & N. B. Co. v. Smith, 134 S. W. 866, 123 Tenn. 678 ; Pennsylvania R. Co. v. Naive, 79 S. W. 124, 112 Tenn. 239, 64 L. R. A. 443 ; City of Knoxville v. Cox, 53 S. W. 734, 103 Tenn. 368. Tex. Quanah, A. & P. Ry. Co. v. Bone (Civ. App.) 199 S. W. 332 ; Ben- nett V. Foster (Civ. App.) 161 S. W. 1078 ; Peacock v. Coltrane (Civ. App.) 156 S. W. 1087; Souther v. Hunt (Civ. App.) 141 S. W. 359; Bvart v. Dal- rymple (Civ. App.) 131 S. W. 223 ; Lyon V. Bedgood, 117 S. W. 897, 54 Tex. Civ. App. 19; Arthur v. Porter (Civ. App.) 116 S. W. 127; Missouri, K. & T. Ry. Co. of Texas v. Wall (Civ. App.) 110 S. W. 453 ; Galveston,.H. & S. A. By. Co. V. Still, 100 S. W. 176, 45 Tex. Civ. App. 169; St. Louis Southwestern By. Co. of Texas v. Baer, 86 S. W. 653, 39 Tex. Civ. App. 16; Dolan v. Meehan (Civ. App.) 80 S. W. 99; CranflU v. Hay den (Civ. App.) 75 S. W. 578, reversed 80 S. W. 609, 97 Tex. 544 ; Western Union Tel. Co. V. McConnico, 66 S. W. 592, 27 Tex. Civ. App. 610 ; Milmo Nat. Bank V. Convery (Civ. App.) 49 S. W. 926; St; Louis S. W. Ry. Co. of Texas v. Casseday (Civ. App.) 48 S. W. 6, re- versed 50 S. W. 125, 92 Tex. 525; Qaek v. Wood (Civ. App.) 46 S. W. 1132; Dublin Cotton-Oil Co. v. Jar- rard, 42 S. W. 959, 91 Tex. 289, affirm- ing judgment (Civ. App.) 40 S. W. 531 ; Riviere v. Missouri, K. & T. Ry. Co. (Civ. App.) 40 S. W. 1074. Utah. Jensen v. Denver & B. G. E. Co., 138 P. 1185, 44 Utah, 100; Evans v. Oregon Short Line R. Co., 108 P. 638, 37 Utah, 431, Ann. Cas. 1912C, 259. Vt. Needham v. Boston & M. B. Co., 74 A. 226, 82 Vt. 518 ; Terrill v. Tillison, 54 A. 187, 75 Vt. 193 ; Ams- den V. Atvrood, 38 A. 263, 69 Vt. 527. Va. Keen's Ex'r v. Monroe, 75 Va. 424 ; Kincheloe v. Tracewells, 11 Grat. 587. "Wash. Singer v. Martin, 164 P. 1105, 96 Wash. 231; NoUmeyer v. Tacoma Ry. & Power Co., 164 P. 229, 95 Wash. 595;, Howe v. West Seattle Land & Improvement Co., 59 P. 495, 21 Wash. 594. W. Va. Berry v. Huntington Masonic Temple Ass'n, 93 S. B. 355, 80 W. Va. 342. Wis. Lyle v. McCormick Harvest- ing Mach. Co., 84 N. W. 18, 108 Wis. 81, 51 L. R. A. 906; Stucke v. Mil- waukee, C. M. B. Co., 9 Wis. 202. 6 5 Rudolph V. Holmes, 78 So. 839, 201 Ala. 461; Hydraulic Cement Block Co. V. Christensen, 114 P. 524, 38 Utah, 525. 6 6 TI. S. (C. C. A. Mo.) Exchange Bank v. Moss, 149 F. 340, 79 0. C. A. 278. Ark. American Fire Ins. Co. v. Haynie, 120 S. W. 825, 91 Ark. 43. Colo. Blackmore v. Neale, 60 P. 952, 15 Colo. App. 49. ' Conn. Rathbone v. City Fire Ins. ■ Co., 31 Conn. 193. D. C. Robinson v. Parker, 11 App. D, O. 132. Ga. Seaboard Air Line Ry. v. Blackshear, 75 S. B. 902, 11 Ga. App. 579; Carter & Ford v. Brown, 61 S. E. 142, 4 Ga. App. 238. 111. Rolfe V. Rich, 149 111. 436, 35 N. E. 352, affirming 46 111. App. 406 ; Weeks v. Jones, 200 111. App. 215; Swigart v. Savely, 176 111. App. 369. Ind. Town of Newcastle v. Grubbs, 86 N. E. 757, 171 Ind. 482 ; Toops v. State, 92 Ind. 13. Ind. T. Gulf, C. & S. F. By. Co. V. Moseley, 98 S. W. 129, 6 Ind. T. 369. Mo. Davis v. Springfield Hospital (App.) 196 S. W. 104. Mont. Anderson v. Northern Pac. By. Co., 85 P. 884, 34 Mont. .181. N. J. Christy v. New York Cent. & H. B. B. Co., 101 A. 372, 90 N. J. Law, 502 INSTRUCTIONS TO JURIES 922 This rule applies where a number of propositions are requested en masse and oiie or more of them are improper,®'' or where an in- 540 ; Manchester Building & Loan Ass'n V. Allee, 80 A. 466, 81 N. J. Law, 605, reversing judgment (Sup.) 76 A. 1012, 80 iNT. J. Law, 185. N. Y. Dooling v. City of New York, 132 N. Y. S. 1012, 148 App. Div. 713, Appeal to Court of Appeals de- nied 133 N. Y. S. 1119 ; Lee v. Ster- ling Silk Mfg. Co., 118 N. Y. S. 852, 134 App. Div. 123; Frank v. Metro- politan St. Ky. Co., 86 N. Y. S. 1018, 91 App. Div. 485 ; Smith v. New York Cent. & H. K. R. Co., 9 N. Y. St. Rep. 612., W. C. Edwards v. Western Union Telegraph Co., 60 S. E. 900, 147 N. C. 126 ; Harris v. Atlantic Coast Line R. Co., 43 S. E. 589, 132 N. C. 160. , S. C. Stanton v. Southern Ry. Co., 34 S. E. 695, 56 S. C. 398. Tex. Cunningham v. State, 166 S. W. 519, 73 Tex. Cr. R. 565 ; San An- tonio & A. P. Ry. Co. V. McBrlde & Dlllard, 116 S. W. 638; Houston & T. C. R. Co. V, Oram, 107 S. W. 74, 47 Tex. Civ. App. 526; Missouri, K. & T. Ry. Co: of Texas v. Smith (Civ. App.) 100 S. W. 182; Gulf, C. & S. F. Ry. Co. V. Minter, 93 S. W. 516, 42 Tex. Civ. App. 235 ; Creager v. Yar- borough (Civ. App.) 87 S. W. 376 ; Cit-. Izens' Nat. Bank v. Cammer (Civ. App.) 86 S. W. 625; International & G. N. R. Co. V. Shuford, 81 S. W. 1189, 36 Tex. Civ. App. 251 ; St. Louis Southwestern Ry. Co. of Texas v. Kennemore (Civ. App.) 81 S. W. 802 ; Williams v. Yoe, 54 S. W. 614, 22 Tex. Civ. App. 446; Waco Artesian Water Co. V. CauWe, 47 S. W. 538, 19 Tex. Civ. App. 417; Harris v. First Nat. Bank (Civ. App.) 45 S. W. 311 ; Law- rence V. State, 20 Tex. App. 536. Va. Peele v. Bright, 89 S. B. 238, 119 Va. 182; Chesapeake & O. Ry. Co. V. F. W. Stock & Sons, 51 S. E. 161, 104 Va. 97. Waslk. Croft v. Northwestern S. S. Co., 55 P. 42, 20 Wash. 175. W. Va. Shrewsbury v. Tufts, 41 W. Va. 212, 23 S. E. 692. 6 7 Ala. Goldstein v. Self, 62 So. 369, 9 Ala. App. 100; Bohanan v. Dodd, 60 So. 955, 7 Ala. App. 220 ; Mo- bile & Ohio R. Co. v. Minor, 60 So. 951, 6 Ala. App. 633, certiorari de- nied Ex parte Mobile & O. R. Co. (Sup.) 61 So. 1005 ; Birmingham Ry., Light & Power. Co. v. Leach, 59 So. 358, 5 Ala. App. 546 ; Stowers Furni- ture Co. V. Brake, 48 So. 89, 158 Ala. 639; McEntyre v. Hairston, 44 So. 417, 152 Ala. 251. G-a. Atlantic Coast Line R. Co. v. Hill, 77 S. E. 316, 12 Ga. App. 392. 111. Springfield Electric Light & Power Co. v. Mott, 120 111. App. 39. N. J. Schreiher v. Public Service Ry. Co., 98 A. 316, 89 N. J. Law, 183; Miller v.'I. P. Thomas & Son Co., 98 A. 193, 89 N. J. Law, 364. N. C. Johnson County Sav. Bank V. Chase, 65 S. E. 745, 151 N. C. 108. Tex. Merchants' Ice Co. v. Scott & Dodson (Civ. App.) 186 S. W. 418; Hermann v. Bailey (Civ. App.) 174 S. W. 865; Western Union Telegraph Co. V. Glass (Civ. App.) 154 S. W. 604 ; Wall V. Lubbock, 118 S. W. 886, 52 Tex. Civ. App. 405 ; Gulf, C. & S. F. Ry. Oo. V. Garrett (Civ. App.) 98 S. W. 657; International & G. N. R. Oo. V. Sein, 26 S. W. 788 ; International & G. N. R. Co. V. NefE (Civ. App.) 26 S. W. 784; Missouri Pac. Ry. Co. v. King, 2 Tex. Civ. App. 122, 20 S. W. 1014, 23 S. W. 917. Contrary rule. In some jurisdic- tions, where a request to charge con- tains two independent and distinct propositions, one of which is proper to be given and the other not, the proper course is, not to refuse it as a whole, but to refuse the erroneous proposition, and grant that which is correct. Sword v. Keith, 31 Mich. 247; Peshine v. Shepperson, 17 Grat. (Va.) 472, 94 Am. Dec. 468. Charges written on separate sheets of paper. Where five special charges requested are written on sep^ arate sheets of paper, which are pinned together so as to be easily sep- arated, and the style of the cause ap- pears only on the first one, and the signature of counsel only on the last, they must be considered together; and, if one is incorrect, all are prop- 923 REQUESTS OR PRAYERS FOR INSTRUCTIONS § 503 struction contains several alternative propositions, one of which is unsound,®* or where, in an action based on two counts, instruc- tions asked as applicable to the whole complaint are good only as to one count,®" or where part of an instruction is argumentative,'"" or where a requested charge contains an incorrect statement of fact,''^ or requests the withdrawal of both improper and proper evi- dence,'"* or where a part of a request to charge is not applicable to the facts,''* or invades the province of the jury.'"* So requested in- structions, unintelligible for lack of punctuation, may be refused.''^ § 503. Qualifications of rule If instructions, taken as a whole, present the law correctly, and are neither inconsistent nor misleading, they should be given, al- though one of them, considered by itself, is 'defective or errone- ous ; '* and where different charges, although written upon a sin- gle piece of paper, are acted upon by the court as separate charges, and a separate exception is reserved to the refusal of each charge, the fact that one of them is faulty will not absolve the court from error in refusing them all,'''" and while in some jurisdictions it is not error to refuse an instruction unless it ought to be given pre- cisely in the terms prayed,'"® and in one jurisdiction the court has no power to correct even mere verbal inaccuracies, being bound to give or refuse instructions as requested,'® it is held in some jurisdictions that an error in a requested instruction may be so ap- parently clerical that it will be the duty of the court to reform the erly refused. International & G. N. Tex. Civ. App. 385; Brooke v. Young, R. Co. V. Neff (Tex. Civ. App.) 26 S. 3 Rand. (Va.) 106. W. 784; Same v. Sein, Id. 788. ''s Bailey v. State, 53 So. 296, 168 68 Whitsett V. Belue, 54 So. 677, 172 Ala. 4, Ala. 256; Boyden v. Fitchburg R. Co., t" Whalen v. St. Louis, K. C. & N. 47 A. 409, 72 Vt. 89. Ry. Co., 60 Mo. ■ 323 ; Callaway v. 6 9 Mancbester Fire Assur. Co. v. Fash, 50 Mo. 420. Feibelman, 23 So. 759, 118 Ala. 308. '^ Tennessee Coal, Iron & R. Co. v. 70 Sloss-Sheffield Steel & Iron Co. Bonner, 51 So. 145, 164 Ala. 57. V Sampson, 48 So. 493, 158 Ala. 59.0. ''^ American Motor Car Co. v. Rob- 71 McNetto'n V. Herb, 123 N. W. 17, bins, 103 N. B. 611, 181 Ind. 417; 158 Micb. 525. Pittsburg, C, C. & St. L. Ry. Co. v. 7 2 Kendrick v. Ryus, 123 S. W. 937, Sudhoff, 90 N. E. 467, 173 Ind. 314; 225 Mo 150, 135 Am. St. Rep. 585. transferred from Appellate Court 88 7 3 Knecht v. Mooney, 85 A. 775, 118 N. B. 702; Lawrenceburgh & U. M. Md 583 ; Jackson v. Southwest Mis- R. Co. v. Montgomery, 7 lad. 474 ; souri R Co , 156 S. W. 1005, 171 Mo. Childers v. Southern Pac. Co., 149 P. 430 ; Zarate v. Villareal (Tex. Civ. 307, 20 N. M. 366 ; Lynch v. Town of App ) 155 S. W. 328 ; Sabine & E. T. Waldwiek, 101 N. W. 925, 123 Wis. Ry. Co. V. Ewing, 21 S. "W. 700, 1 3.51. Tex Civ App 531. " Barfleld v. Evans, 65 So. 928, 187 74Mesker v Bishop, 103 N. E. 492, Ala. 579; Louisville & N. R. Co. v. 56 Ind App. 455; International & G. Lile, 45 So. 699, 154 Ala. 556; Banks N R Co V Haddox, 81 S. W. 1036, 36 v. State (Ala.) 39 So. 921. §503 INSTEDCTIONS TO JURIES 924 request, so as to eliminate sdch error, and to charge the request as so reformed,*" as where a request improperly uses the word "plaintiff," instead of "defendant." " In Virginia the rule is that, while the court may, as a general rule, refuse to give an instruction which does not correctly expound the law, and is not bound to modify it, or give any other instruc- tion in its place,** yet, where the request is so equivocal that tO' give or generally 1-efuse it might mislead the jury, the court should either accompany a refusal with an explanation to the jury,** or should substitute a correct instruction for the one requeste;d,** or should modify the request, so as to clearly give it the meaning which will make it proper, and then give the request as so modi- fied.*® In West Virginia a similar rule prevails.** § 504. Power of court to reform an erroneous request In some jurisdictions, where an instruction requested is in part correct and in part erroneous, the court may give the part which is correct,*' or may modify the instruction asked, so as to make it correct as a whole,** as by eliminating argumentative matter,** 80 Kenny v. Marquette Cement Mfg. Co., 149 111. App. 173, judgment affirm- ed 90 N. E. 724, 243 111. 396; Ft. Worth & D. C. Ry. Co. v. Anderson (Tex. Civ. App.) 194 S. W. 847 ; Mont- gomery V. Sfate, 107 N. W. 14; 128 Wis. 183. 81 Haney v. JVtann (Tex. Civ. App.) 81 S. W. 66. In Alabama, where, as stated else- where, requests must be given, if giv- en at all, in the exact language in which they are framed, the Improper use of the word' "defendant" for "plaintifC" in a requested instruction need not be corrected by the trial court, but the instruction may be re- fused. Western Ry. of Alabama v. Stone, 39 So. 723,-145 Ala. 663. 8 2 Keen's Ex'r v. Monroe, 75 Va. 424. 83 Peshine v. Shepperson, 17 Grat. (Va.) 472, ,94 Am. Dec. 468. siLufty V. Commonwealth, 100 S. B. 829, 126 Va. 707. 85 Virginian Ry. Co. v. Bell, 79 S, E. 396, 115 Va. 429, Ann. Gas. 1915A, 804 ; ■ Rosenbaum v. Weeden, 18 Grat. (Va.) 785, 98 Am. Dec. 737 ; Ward v. Chum, 18 Grat. (Va.) 801, 98 Am. Dee. 749 : Baltimore & O. R. Co. v. Polly, 14 Grat. (Va.) 447. 8 6 Carrico v. West Virginia Cent. & P. Ry. Co., 35 W. Va. 389, 14 S. E. 12. 87 Marlborough v. Sisson, 23 Conn. 44 ; Bush V. Fourcher, 59 S. E. 459, 3 Ga. App. 43; French v. Millard, 2 Ohio St. 44; St. Louis, I. M. & S. Ry. Co. V. Berry, 93 S. W. 1107, 42 Tex.. Civ. App. 470. 88 U. S. (C. C. A. Mass.) American Agricultural Chemical Co. v. Hogan, 213 F. 416, 130 C. C. A. 52. Ark. Texas & P. Ry. Co. v. Krie- ger, 185 S. W. 448, 123 Ark. 619 ; Dent V. People's Bank of Imboden, 175 S. W. 1154, 118 Ark. 157, 1 A. L. R. 688. Cal. Mtzgerald v. Southern Pac. Co., 173 P. 91, 36 Cal. App. 660 ; Fiorl V. Agnew, 164 P. 899, 33 Cal. App. 284 ; Boyce v. California Stage Co., 25 Cal. 460. Fla. Western Union Telegraph Co. v. Merritt, 46 So. 1024, 55 Ma. 462, 127 Am. St. Rep. 169. 111. Chenoweth v. Burr, 89 N. E. 1008, 242 111. 312, affirming judgment 146 111. App. 443 ; Pauckner v. Wak- em, 83 N. E. 202, 231 111. 276, 14 L. R. aoKoshlnski v. Illinois Steel Co., 83 N. E. 149, 231 111. 198; Gibson v. I George C. Doyle & Co., 106 P. 512, 3T Utah, 21. 925 REQUESTS OR PRAYERS FOR INSTRUCTIONS § 505 or by reforming the instruction, so as to prevent it from invading the province of the jury,*" or from being misleading.®^ In other jurisdictions, however, under statutes, if instructions are given at all, they must be given in the precise terms in which they are asked, and the court has no power to amend or correct them.*^ § 505. Effect of erroneous request as making it duty of court to give a proper charge In some jurisdictions the rule is that the cpurt, on refusing a requested instruction which is incorrect in some particular, is not bound, of its own motion, to give a proper instruction upon the question involved in the request.** In Missour-i this is the rule in civil cases,®* but in criminal cases, in which the court is re- quired to give all the law of the case necessary for the information A. (N. S.) 1118 ; niinois Collieries Co. V. Haveron, 137 111. App. 22 ; Illinois Collieries Go. v. Davis, 137 111. App. 15, judgment affirmed Davis v. Illinois Collieries Co., 83 N. E. 836, 232 111. 284; Citizens' Sav., Loan & Building Ass'n V. Weaver, 127 111. App. 252; Gary v. Norton, 35 111. App. 365. Kan. St. Joseph & D. C. R. Go. v. Chase, 11 Kan. 47. Ky. Theobald v. Hare, 47 Ky. (8 B. Mon.) 39; Pleak v. Chambers, 46 Ky. (7 B. Mon.) 565. Md. Blackburn v. Beall, 21 Md. 208. Miss. Louisville, N. O. & T. K. Co. V. Suddoth, 70 Miss. 265, 12 So. 205. Mo. Richardson v. St. Louis & H, Ry. Co., 123 S. W. 22, 223 Mo. 325. Nev. Burch v. Southern Pac. Co., 104 P. 225, 32 Nev. 75, Ann. Gas. 1912B, 1166. S. C. Dutton V. Atlantic Coast Line R. Co., 88 S. E. 263, 104 S. G. 16. Tex. Industrial Lumber Co. v. Bivens, 105 S. W. 831, 47 Tex. Civ. App. 396; Wells v. Barrent, 7 Tex. 584. Vrash. Kennedy v. Supreme Tent of Knights of Maccabees of the World, 170 P. 371, 100 Wash. 36. W. Va. Griffith v. American Goal Co. of Allegheny County, 88 S. E. 595, 78 W. Va. 34. ^ Wis. Sterling v. RiplejifS Chand. (Wis.) 166. ^ _ 00 Bidwell V. Los Angeles & S. D. B. Ry. Co., 148 P. 197, 169 Gal. 780; Scott V. Sovereign Camp of Woodmen of the World, 129 N. W. 302, 149 Iowa, 562 ; Miller v. Mantik, 81 A. 797, 116 Md. 279 ; GiU v. Ruggles, 78 S. E. 536, 95 S. C. 90. 91 East St. Louis & St. Louis Ex- press Co. V. Illinois Traction Co., 169 111. App. 24; Commonwealth v. Mc- Murray, 47 A. 952, 198 Pa. 51, 82 Am. St. Rep. 787. 9 2 Pensacola & A. R. Co. v. Atkin- son, 20 Pla. 450. 93 Ark. Atkinson v. State, 202 S. W. 709, 133 Ark. 341; St. Louis, I. M. & S. R. Co. V. Duncan, 177 S. W. 1132, 119 Ark. 287; Lucius v. State, 116 Ark. 260, 170 S. W. 1016 ; Hortoix V. Jackson, 113 S. W. 45, 87 Ark. 528. HI. Willison v. Dering Goal Go., 156 111. App. 209. Imd. Spurlin v. State, 124 N. E. 753. Or. Naf tzger v. Henneman, 185 P. 233, 94 Or. 109. Va. RatcliflCe v. Walker, 85 S. E. 575, 117 Va. 569, Ann. Gas. 1917E, 1022 ; Borland v. Barrett, 76 Va. 128, 44 Am. Rep. 152. Wasb. Ramm v. Hewitt-Lea Lum- ber Co., 94 P. 1081, 49 Wash. 263. 94 Mo. Alexander v. Star-Chroni- cle Pub. Co., 198 S. W. 467, 197 Mo. App. eoi; Lester v. Sampson (App.) 180 S. W. 419; D'Arcy v. Catherine I^ad Co., 133 S. W. 1191, 155 Mo. App. 266; Voelker v. Hill-0'Meara Const. Co., 131 S. W. 907, 153 Mo. App. 1 ; Barnett v. Sweringen, 77 Mo. App. 64; Dempsey v. Reinsedler, 22 Mo. App. 43. § 505 ' INSTRUCTIONS TO JURIES 926 of the jury, whether so requested or not, the rule is otherwise.*^ In other jurisdictions the rule prevails that, although error may be so intermingled in a requested charge as to make the refusal of such request proper, it will nevertheless be error- for the court, whose attention has thus been called to the subject of the errone- ous request, to fail to give an instruction of its own thereon,** where the matters involved in such erroneous request are impor- tant, and not sufficiently covered by the general charge.®' Thus, where a requested instruction in a criminal case, although faulty, is sufficient to challenge the court's attention to the only defense on which the accused relies, and in support of which some sub- stantial evidence has been offered, it will be error to give no in- struction stating the law in reference to such defense.®* In Texas, although there are cases to the contrary,"" a large num- ber of the decisions support the proposition that if the court, in its main charge, has failed to instruct on a material issue raised by the pleadings and the evidence, and a special charge requested, although incorrect in itself, is sufficient to call the attention of the court to the omission, it is error to fail to correctly instruct on the subject indicated.^"" In Kentucky the rule is /that, where a party is entitled to an instruction on the point attempted to be 05 State V. Goode (Mo.) 220 S. W. Cr. 617, rehearing denied 101 P. Ill, 854; State v. Lewkowltz, 178 S. W. 1 Okl. Or. 617. 58, 265 Mo. 613 ; Grant City v. Sim- Utah. State v. TerreU, 186 P. 108, nions, 151 S. W. 187, 167 Mo. App. 55 Utah, 314. 1&3 ; State v. Little, 128 S. W. 971, Vt. Hazard v. Smith, 21 Vt. 123. 228 Mo. 273. Wis. Borchardt v. Wausau Boom Contra. State v. McNamara, 100 Co., 54 Wis. 107, 11 N. W. 440, 41 Am. Mo. 100, 13 S. W. 938. Rep. 12. 9 6 IT. s. (C. O. A. La.) Audubon Wyo. Union Pac. Ry. Co. v. Jarvl, Bldg. Co. v.F. M. Andrews & Co., 187 3 Wyo. 375, 23 P. 398. F. 254, 111 C. C. A. 92. ~ 87 Rothe v. Pennsylvania Co. (C. C. Colo. Harris v. People, 135 P. 785, A. Ohio) 195 F. 21, 114 0. 0. A. 627 ; 55 Colo. 407. People v. Scott, 10 Utah, 217, 37 P. Conn. State V. Wakefield, 90 A. 335. See Rome Ins. Co. v. Thomas, 230, 88 Conn. 164. 75 S. B. 894, 11 Ga. App. 539. D. C. Freed v. U. S., 266 F. 1012, ss State v. Miller, 114 P. 855, 84 49 App. D. 0. 392 ; Henry v. U. S., Kan. 667, reversing judgment on re- 263 F. 459, 49 App. D. 0. 207. hearing 111 P. 437, 83 Kan. 410. loiva. State V. Cessna, 153 N. W. 9 9 Missouri, K. & T. Ry. Co. of Tex- 194, 170 Iowa, 726, Ann. Cas. 19i7D, as v. Dunn (Tex. Civ. App.) 157 S. 289. W. 434 ; Texas Telegraph & Telephone Kan. Kansas City, M. & O. Ry. Co. Co. v. Scott, 127 S. W. 587, 60 Tex. V. Loosley, 90 P. 990, 76 Kan. 103. Civ. App. 39. Mich. Dodge V. Brown, 22 Mich. loo Hmes v. Parry (Tex. Civ. App.) 446. 227 S. V^^ 339; Alamo Iron Works v. Okl. Mcintosh V. State, 128 P. 735, Prado (Tex. Civ. App.) 220 S. W. 282; 8 Okl. Cr. 469 ; Robison v. United Chicago, R. I. & G. Ry. Co. v. Went- States, 111 P. 984, 4 Okl. Cr. 336-; zel (Tex. Civ. A-pp.) 214 S. W. 710; Morris v. Territory, 99 P. 760, 1 Okl. Rounds v, Coleman (Tex. Civ. App.) 927 BEQUESTS OR PRAYERS FOR INSTRUCTIONS § 505 covered by a request, and the court refuses it because of error 214 S. W. 496; Roberts v. Houston Motor Car Co. (Tex. Civ. App.) 188 S. W. 257; Stirling y. Bettis Mfg. Co. (Tex. Civ. App.) 159 S. W. 915; Quanah, A. & P. Ry. Co. v. Gal- loway (Tex. Civ. App.) 154 S. W. 653; Wichita Palls & W. Ry. Co. V. Wyrick (Tex. Civ. App.) 147 S. W. 694; Davis, Pruner & Howell v. Woods (Tex. Civ. App.) 143 S. W. 950 ; Warren v. Kimmell (Tex. Civ. App.) 141 S. W. 159; Southwestern Port- land Cement Co. v. McBrayer (Tex. Civ. App.) 140 S. W. 388; Porter v. State, 132 S. W. 935, 60 Tex. Cr. R. 588; Cox v. State, 126 S. W. 886, 58 Tex. Cr. R. 545 ; Moore v. State, 125 S. W. 34, 58 Tex. Or. R. 183; Johnson v. State, 122 S. W. 877, 57 Tex. Cr. R. 308; Eubanks v. State, 122 S. W. 35, 57 Tex. Cr. R. 153 ; Lee V. Hail, 114 S. W. 403, 51 Tex. Civ. App. 632; Rushing v. Lanier, 111 S. W. 1089, 51 Tex. Civ. App. 278 ; Wade v. Galveston, H. & S. A. Ry. Co. (Civ. App.) 110 S. W. 84; McAdams v. Hooks, 104 S. W. 432, 47 Tex. Civ. App. 79 ; St. Louis Southwestern Ry. Co. of Texas v. Fowler (Tex. Civ. App.) 93 S. W. 484 ; McNeese v. Car- ver, 89 S. W. 430, 40 Tex. Civ. App. 129 ; Ray v. Pecos & N. T. Ry. Co., 88 S. W. 466, 40 Tex. Civ. App. 99 ; St. Louis Southwestern Ry. Co. of Texas V. Lowe (Tex. Civ. App.) 86 S. W. 1059; Texas Loan & Trust Co. v. Angel, 86 S. W. 1056, 39 Tex. Civ. App. 166 ; Gulf, C. & S. F. Ry. Co. v. Minter,, 85 S. W. 477, 38 Tex. Civ. App. 8; Rea v. St. Louis Southwest- ern Ry. Co. of Texas (Tex. Civ. App.) 73 S. W. 555; City of Sherman v. Greening (Tex. Civ. App.) 73 S. W. 424; Gulf, C. & S. F. Ry. Co. v. Mangham, 69 S. W. 80, 29 Tex. Civ. App. 486 ; Johnston v. Johnston (Tex. Civ. App.) 67 S. W. 123; Neville v. Mitchell, 66 S. W. 579, 28 Tex. Civ. App. 80 ; Corsicana Nat. Bank v. Baum (Tex. Civ. App.) 62 S. W. 812 ; Gulf, C. & S. F. Ry. Co. v. Hill (Tex. Civ. App.) 58 S. W. 255; Texas & P. Ry. Co. V. Short (Tex. Civ. App.) 58 S. W. 56; Williams v. Emberson, 55 S. W. 595, 22 Tex. Civ. App. 522; Texas & Ft. S. Ry. Co. v. Atchison (Tex. Civ. App.) 54 S. W. 1075; Jlis- sonri, K. & T. Ry. of Texas v. Miles, 50 S. W. 168, 20 Tex. Civ. App. 570; Denison & P. Suburban Ry. Co. v. James, 49 S. W. 660, 20 Tex. Civ. App. 358; Missouri, K. & T. Ry. Co. of Texas v. Webb, 49 S. W. 526, 20 Tex. Civ. App. 431 ; San Antonio & A. P. Ry. Co. V. Horkan (Tex. Civ. App.) 45 S. W. 391; Sharrock v. Ritter (Tex. Civ. App.) 45 S. W. 156; Leeds V. Reed (Tex. Civ. App.) 36 S. W. 347 ; Gulf, C. & S. F. Ry. Co. v. Cusenber- ry, 86 Tex. 525, 26 S. W. 43; Car- penter V. Dowe (Civ. App.) 26 S. W. 1002; Cleveland v. Empire Mills, 6 Tex. Civ. App. 479, 25 S. W. 1055; Bexar Bldg. & Loan Ass'n v. Newman (Tex. Civ. App.) 25 S. W. 461 ; Willis V. Smith, 72 Tex. 565, 10 S. W. 683. niustratioms of cases ivithin rule. A carrier's conductor having claimed that his assault was in self- defense, a request to charge that if plaintiff struck the conductor or Jerk- ed his arm violently, or both, and the conductor in slapping plaintiff was only resisting the force used by plain- tiff, and was acting in self-defense and used no more force than was nec- essary, defendant was entitled to a verdict, though objectionable, was sufficient to require the court to give a proper charge on such subject. Dallas Consol. Electric St. Ry. Co. v. Pettit, 105 S. W. 42, 47 Tex. Civ. App. 354. Where, in an action for inju- ries to a servant, the court failed to charge on an issue as to defendant's alleged violation of a speed ordinance, a requested instruction that, if the movement of the cars was at a speed . ■ not greater than that allowed by the ordinance, plaintiff could not recover on the alleged ground of negligence that the speed of the cars was unlaw- ful, was sufficient to call the court's attention to such issue. Houston & T. C. R. Co. V. Turner, 78 S. W. 712, 34 Tex. Civ. App. 397. The rule of the text does not apply as indicated by the state- ment thereof, where the issue in- volved in the request has been sub- stantially covered, or where it is sought merely to have placed before 505 INSTRUCTIONS TO JURIES 928 therein, it is its duty to give a proper cKarge on the subject in- volved.^i The above rule as to the eif act of an erroneous request, as mak- ing it the duty of the trial court to give a proper charge, is vig- orously opposed in a well-considered case in Oregon, where the court says that such a rule makes it unnecessary for counsel to carefully prepare requested instructions and that such a course of practice is not fair to the court, which at the close of a trial has not the time to carefully consider all the matters that may be thus thrust upon it. This criticism of the Oregon court, however, so far as it is directed against the injustice to the trial court, seems to ignore the fact that such rule is intended to remedy the orig- inal dereliction of the court in failing to charge on a material is- sue."« the jury, the converse of that which has already been submitted. Jack- sonville Ice & Electric Co. v. Moses, 134 S. W. 379, 63 Tex. Civ. App. 49©; Vioksburg, S. & P. Ry. Co. v. Jackson (Tex. CivT App. 133 S. W. 925. ■loitouisville '& N. K. Co. v. Ste- phens, 220 S. W. 746, 188 Ky. 1 ; Cin- cinnati, N. O. & T. P. Ry. Co. V. Fran- cis, 220 S. W. 739; 187 Ky. 703 ; Clif- ton Land Co. v. Reister, 216 S. W. 342, 186 Ky. 155 ; , Louisville & N. ]R. Co. V. McCoy, 197 S. W. 801, 177 Ky. 415 ; Stearns Coal & Lumber Co. v. Sprad- lin, 195 S. W. 781, 176 Ky. 405 ; Cum- berland R. Co. V. Girdner, 192 S. W. 873, 174 Ky. 761; Steams Coal & Lumber Co. v. Williams, 186 S. W. 931, 171 Ky. 46 ; Charles Taylor Sons Co. v. Hunt, 173 S. "W. 333, 163 Ky. 120 ; Western Union Telegraph Co. v. Sisson, 160 S. W. 168, 155 Ky. 624; Illinois Cent. R. Co. v. Dallas' Adm'x, 150 S. W. 536, 150 Ky. 442; Louis- ville, H. & St. L. Ry. Co. v. Roberts, 139 S. W. 1073, 144 Ky. 820; Lewis, Wilson & Hicks v. Durham, 139 S. W. 952, 144 Ky. 704; West Kentucky Coal Co. V. Davis, 128 S. W. 1074, 138 Ky. 667; Crane v. T. J. Congleton & Bro., 116 S. W. 341 ; Louisville & N. R. Co. V. King's Adm'r, 115 S. W. 196, 131 Ky. 347; Whitley v. Whitley's Adm'r, 108 S. W. 241, 32 Ky. Law Rep. 1211, rehearing denied 109 S. W. 908, 33 Ky. Law Rep. 281 ; Troutwine V. Louisville & N. R, Co., 105 S. W. 142, 32 Ky. Law Rep. 5; South Cov- ington & C. St. Ry. Co. V. Core, 96 S. W. 562, 29 Ky. Law Rep. 836; Blimm v. Commonwealth, 70 Ky. (7 Bush) 320. Effect of erroneous request as to measure of damages. Where it was a contested issue whether de- fendant had erected a depot which complied with its contract, but the instruction on damages applied only to damage in case of failure to con- struct, an incorrect instruction re- quested by defendant on the measure of damages if the company had erect- ed the depot as agreed, but not within the time provided by the contract, was sufficient to cast on the court the duty to give a correct instruction on the subject. Elkhorn & B. V. Ry. Co. V. Dingus, 220 S. W. 1047, 187 Ky. 812. Necessity of written request- To make applicable the rule requiring the court to give a correct instruc- tion in lieu of one asked, which is in- correct, either in form or substance, the instruction must be properly ask- ed — that is, presented in writing. Bell's Adm'r v. Louisville Ry. Co., 146 S. W. 383, 148 Ky. 189. 102 Sorenson v. Kribs, 161 P. 405, 82 Or. 130. 929 OBJECTIONS AND EXCEPTIONS § 506 CHAPTER XXXVII OBJECTIONS AND EXCEPTIONS A. Right to Object oe Except as Affected by Waiveh and Estoppel § 506. General rule. 507. Specific applications of rule. 508. Limitattons of rule. B. Time fob Objections oe Excei'tions 509. Rule that objections should be made before retirement of jury or be- fore verdict. 510. Rule permitting objections after retirement of jury or after verdict. 511. Extension of time. C. Mode of Making Objections and Manner of Taking and Noting Exceptions 512. Mode of making objections in general. 513. General requirements with respect to manner of taking and noting exceptions. 514. Noting exceptions on margin of instructions. 515. Knowledge of court or opposing party. 516. Necessity of formal exception. D. Sttfficienoy of Objections oe Exceptions with Respect to Theie Substance 517. Oral charges. 518. Joint exceptions. E. RT7I.E that Exceptions to iNSXBtrcTioNS oe the Refusal Thereof Should be Specific 519. In general. 520. Specific applications of rule. 521. Application of rule in criminal cases. 522. Exceptions to instructions correct in part. 523. Exception to each and every part of a charge. 524. Exception directed against several instructions designated by certain numbers. 525. Exceptions to refusals to instruct. 526. Limitations of rule. F. Effect of Failure to Object oh Except 327. General rule. 528. Limitations of rule. 529. Specific applications of rule. A. Right to ObjBct or Except as Aeeectbd by Waiver and Estoppel § 506. General rule . Objections to the substance of instructions, or to their form or the mode of giving them, or with respect to the failure of the Inst.to Juries— 59 507 INSTRUCTIONS TO JURIES 930 court to charge on certain matters, may be waived by a party, or he may be estopped by his conduct to raise such objections.^ § 507. Specific applications of rule Under the above rule, a party cannot found an objection on er- rors in instructions given at his own request,^ and the • consent 1 111. Northwestern Elevator & Grain Co. v. Smiley, 154 111. App. 351. Iowa. Ottoway v. Milroy, 123 N. W. 467, 144 Iowa, 631 ; Kinney v. Mc- Faul, 98 N. W. 276, 122 Iowa, 452; Shoemaker v. Turner, 90 N. W. 709, 117 Iowa, 340; Delmonica Hotel Co. V. Smith, 84 N. W. 906, 112 Iowa, 659. Kan. Chicago, R. I. & P. Ry. Co. V. Spring Hill Cemetery Ass'n, 57 P. 252, 9 Kan. App. 882. Ky. Elizabethtown Milling & Coal Co. V. Elizabethtown Milling Co., 13 Ky. I/aw Rep. (abstract) 96. Mass. Rand v. Farquhar, 115 N. E. 286, 226 Mass. 91. Minn. Shattuck v. Shattuck's Es- tate, 136 N. W. 409, 118 Minn. 60. Mo. Welland v. Metropolitan St. Ey. Co., 129 S. W. 441, 144 Mo. App. 2(^. N. Y. Person v. StoU, 67 N. E. 1089, 174 N. Y. 548, affirming judg- ment 76 N. X. S. 324, 72 App. Div. 141. Pa. Fern v. Pennsylvania R. Co., 95 A. 590, 250 P. 487. S. C. Bedenbaugh v. Southern Ry. Co., 48 S. E. 53, 69 S. C. 1. S. D. Kirby v. Berguin, 90 N. W. 856, 15 S. D. 444. Tex. Taylor v. Lafevers (Civ. App.) 198 S. W. 651; Galveston, H. & S. A. Ry. Co. V. Sanchez, 122 S. W. 44, 57 Tex. Civ. App. 87. Illustrations of estoppel or waiver. Where, in an action for in- juries at a crossing, defendant con- tends that an instruction is erroneous as using the words "contributed to," instead of "caused'," and also con- tends that the complaint is erroneous as using the word "caused," instead of the words "contributed to," the contentions are incooasistent and un- tenable. Lee V. Northwestern R. Co., 65 S. E. lOSl, 84 S. 0. 125. 2 Ala. Dunn & Lallande Bros. v. Gunn, 42 So. 686, 149 Ala. 583 ; Louis- ville & N. R. Co. V. Hurt, 101 Ala. 34, 13 So. 130. , Ark. Dunnington v. Frick Co., 60 Ark. 250, 30 S. W. 212. Cal. Emerson v. Santa Clara County, 40 Cal. 543. Colo. Orman v. Mannix, 17 Colo. 564, 30 P. 1087, 17 L. R. A. 602, 31 Am. St. Rep. 340. m. Illinois Cent. R. Co. v. Harris, 162 111. 200, 44 N. E. 498, affirming 63 111. App. 172 ; Chicago & A. R. Co. v. Sanders, 154 111. 531, 39 N. E. 481; Ives V. McHard, 103 111. 97; City of , Farmington v. Wallace, 134 111. App. 366, judgment affirmed Wallace v. City of Farmington, 83 N. E. 180, 231 111. 232; Wabash R. Co. v. Howard, 57 111. App. 66; Solomon v. Friend, 42 lU. App. 407. Iowa. Hamilton v. Hartinger, 96 Iowa, 7, 64 N. W. 592. Kan. Ft. Scott, W. & W. Ry. Co. V. Fortney, 51 Kan. 287, 32 P. 904. Me. Ftye v. Hinkley, 18 Me. 320. Md. Hess V. Newcomer, 7 Md. 325. Mass. Copp V. Williams, 135 Mass. 401 ; Commonwealth v. Brigham, 123 Mass. 2-18. Mich. Alberts V. Village of Ver- non, 96 Mich. 549, 55 N. W. 1022; Silsby V. Michigan Car Co., 95 Mich. 204, 54 N. W. 761. Minn. Redmond v. St. Paul, M. & M. Ry. Co., 39 Minn. 248, 40 N. W. 64. Miss. Queen City Mfg. Co. v. Bis- lack, 18 So. 800, 31 L. R. A. 222 ; Wil- son V. Zook, 69 Miss. 694, 13 So. Sal. Mo. Olfermann v. Union Depot R. Co., 125 Mo. 408, 28 S. W. 742, 46 Am. St. Rep. 483; Kansas City Sub- urban Belt R. Co. V. Kansas City St. L. & C. R. Co., lis Mo. 599, 24 S. W. 478; Hazell v. Bank of Tipton, 95 Mo. 60, 8 S. W. 173, 6 Am. St. Rep. 22; Reilly v. Hannibal & St. J. R. 931 OBJECTIONS AND EXCEPTIONS §507 of a party to an objectionable instruction waives the same ob- jection to -another instruction.* So an error in an instruction given at the request of a party is waived by his adversary by request- ing an instruction containing the same error,* and a party cannot complain of an instruction which is in full accord with his theory of the case.^ So, where the court gives an instruction of its own motion, on a subject concerning which it is prohibited from charg- ing, except on the request of a party, the error is cured by the subseqiient giving^ of the same instruction on reque^,^ and error in an instruction is waived by asking for a modification thereof which does not cover the error." A party who a,sks for an im- proper instruction cannot complain of the action of the court in modifying it, even though, according to some of the cases, the modi- fication is wrong.* The above rule has been applied in criminal cases to the fail- ure of the court to reduce its charge to writing,* to the failure to read the instructions to the jury,^* to the failure to accord the right Co., 94 Mo. 600, 7 S. W. 407 ; Thome V. Missouri Pac. Ry. Co., 89 Mo. 650, 2 S. W. 3, 58 Am. Rep. 120 ; Holmes V. Braid wood, 82 Mo. 610; McGonlgle V. Daugherty, 71 Mo. 259; Crutch- field V. St. Louis, K. C. & N. Ry. Co., 64 Mo. 255 ; Flowers v. Helm, 29 Mo. 324; Farrell v. Farmers' Mut. Fire Ins. Co., 66 Mo. App. 153; Hall v. St. Joseph Water Co., 48 Mo. App. 356 ; Byhee v. Irons, 33 Mo. App. 659. Neb. Omaha Fair & Exposition Ass'n V. Missouri Pac. Ry. Co.. 42 Neb. 105, 60 N. W. 330 ; Richards v. Borowsky, 39 Neb. 774, 58 N. W. 277 ; Dawson v. Williams, 37- Neb. 1, 55 N. W. 284. N. C. McLennan v. Chisholm, 66 N. C. 100; Buie v. Buie, 24 N. C. 87. Tenn. Bast Tennessee, V. & G. R. Co. V. Fain, 12 Lea, 35. Tex. Byrd v. Ellis (Civ. App.) 35 S. W. 1070 ; International & G. N. R. Co. V. Sein, 33 S. W. 558, 11 Tex. Civ. App. 386; Id., 89 Tex. 63, 33 S. W. 215; Needham v. State, 19 Tex. 332. Wash. State v. Duncan, 7 Wash. 336, 35 P. 117, 38 Am. St. Rep. 888. 3 Boecker v. City of Naperville, 48 N. E. 1061, 166 111. 151, * Chicago, R. I. & P. Ry. Co. v. Smith, 127 S. W. 715, 94 Ark. 524; Gracy v. Atlantic Coast Line R. Co., 42 So. 903, 53 Fla. 350. 5 Rehfuss V. Hill, 90 N. E. 187, 243 111. 140. 8 Gulf City Shingling Co. v. Boyles, 29 So. 800, 129 Ala. 192. 7 Southern Anthracite Coal Co. v. Bowen, 124 S. W. 1048, 93 Ark. 140. 8 Ala. Southern Ry. Co. v. How- ell, 34 So. 6, 135 Ala. 639. Cal. Harrington v. Los Angeles Ry. Co., 74 P. 15, 140 Cal. 514, G3 L. R. A. 238, 9^ Am. St. Rep. 85 ; Cook V. Los Angeles & P. Electric Ry. Co., 66 P. 306, 134 Cal. 279. 111. Crown Coal & Tow Co. v. Tay- lor, 56 N. E. 328, 184 111. 250, affirm- ing judgment 81 111. App. 66; Deca- tur Cereal-Mill Co. v. Gogerty, 54 N. E. 231, 180 111. 197. N. Y. Cochran v. Sess, 62 N. Y. S. 1088, 49 App. Div. 223, judgment reversed 61 N. E. 639, 168 N. Y. 372. 9 Lane v. State, 70 S. E. 1118, 9 Ga App. 294 ; Spence v. Commonwealth, 204 S. W. 80, 181 Ky. 206. 10 Boyd V. State, 45 So. 634, 154 Ala. 9. § 508 OBJECTIONS AND EXCEPTIONS 932 " to the accused to examine the charge before giving it to the jury,^^ and to the omission to charge on certain matters.'^* § 508. Limitations of rule Acquiescence by a party in an erroneous view of the law taken by the court, by amending the pleadings and introducing evi- dence to meet the opinion, is nbt a waiver of the error, and does not preclude such party from insisting on a correct statement of the law in the instructions,-*^* and an objection to an erroneous in- struction is not waived by a failure to request an instruction in relation to the subject-matter of such instruction.-*-* B. Time foe Objections, or Exceptions § 509. Rule that objections should be made before retirement of jury or before verdict A party deeming himself aggrieved by the instructions of the court or by omissions therefrom should seasonably call the at- tention of the court to such errors of commission or omission, in order that it may have .an opportunity to correct the same,^® as a party will not be permitted to speculate on a favorable verdict, and, if disappointed, seek to questi6n the proceedings by a motion for new trial,^* and undoubtedly good practice requires that ob- jections or exceptions to instructions or to the failure or refusal of the court to instruct should be made at the time the charge is given or the request refused, and before the jury retire, and this is the rule in many jurisdictions." This rule is generally applica- 11 Freeman v. State, 188 S. W. 425, is Colgan v. Farmers' & Mechanics* 80 Tex. Or. R. 20. Bank, 114 P. 460, 59 Or. 469. 12 State V. Paxton, 126 Mo. 500, 29 i^ U. S. United States v. Carey, S. W. 705 ; State v. Debnam, 98 N. C. 110 U. S. 51, 3 Sup. Ct. 424, 28 L. Ed. 712, 3 S. E. 742 ; State v. Reynolds, 87 67 ; Hxuinicutt v. Peyton, 102 U. S. N. 0. 544; State v. Owens, 44 S. 0. 333, 26 L. Ed'. 113; Stanton v. Bmbry, 324, 22 S. B. 244; State v. Davis, 27 93 XJ. S.,548, 23 U Ed. 983; French S. C. 609, 4 S. E. 567. v. Edwards, 13 Wall. 506, 20 L. Ed. 18 M. M. Walker Oo. v. Dubuque 702; Barton v. Forsyth, 20 How. 532, Fruit & Produce Co., 85 N. W. 614, 15 L. Ed. 1012; United States v. 113 Iowa, 428, 53 L. R. A. 775. Breitling, 20 How. 252, 15 L. Ed. 14 Warrington v. Kallauner, 115 S. 900 ; Phelps v. Mayer, 15 How. 160, W. 492, 135 Mo. App. 5. See, also, 14 L. Ed. 643; (0. C. A. Ark.) St. ante, § 472. Louis, I. M. & S. Ry. Co. v. Spencer, 16 Jacobs V. Mitchell, 2 Colo. App. 71 P. 93, 18 C. O. A. 114; (C. C, A. 456, 31 P. 235; Buseh v. Tjentland, Ga.) Greene v. United States, 154 F. 165- N. W. 999, 182 Iowa, 360 ; R. W. 401, 85 C. C. A. 251, certiorari de- Bonyea Piano Co. v. Wendt, 160 N. W. nied 28 S. Ct. 261, 207 U. S. 596, 52 1030, 135 Minn. 378; Middleton v. L. Ed. 357, affirming judgment United State, 217 S. W. 1046, 86 Tex. Cr. R. States v. Greene (D.- C.) 146 F. 803 ; 307. (C. O. A. Ky.) Hindman v. First Nat. 933 OBJECTIONS AND EXCEPTIONS § 509 ble to criminal cases/® and has been applied to objections based Bank, 112 F. 931, 50 C. C. A. 623, 57 L. E. A. 108 ; (C. C. A. Minn.) Wells Fargo & Co. v. Zimmer, 186 F. 130, 108 C. C. A. 242; (C. O. A. Mo.) Northern Central Coal Co. v. Mil- bum, 205 F. 270, 123 0. O. A. 450; (C. C. A. Neb.) Bracken v. Union Pae. iRy. Co., 56 F. 447, 5 C. C. A. 548; (C. C. A. N. Y.) Mann v. Dempster, 181 F. 76, 104 C. C. A. 110; Klaw V. Life Pub. Co., 145 F. 184, 76 C. C. A. 154 ; Park Bros. & Co. v. Bushnell, 60 F. 583, 9 C. C. A. 138 ; (O. C. A. Ohio) American Issue Pub. Co. v. Sloan, 248 F. 251, 160 C. 0. A. 329; Sutherland v. Round, 57 F. 467, 6 C. C. A. 428 ; (C. C. A. Tex.) Bmanuel V. Gates, 53 F. 772, 3 C. C. A. 663; (C. O. A. Utah) Southern Pae. Co. v. Amett, 126 F. 75. 61 C. C. A. 131; (C. C. A. Wash.) Western Union Tel. Co. V. Baker, 85 F. 690, 29 C. C. A. 392; Stone v. United States, 64 F. 667, 12 C. C. A. 451. Ala. Meadows v. State, 62 So. 737, 182 Ala. 51, Ann. Cas. 1915D, 663; City Council of Montgomery v. Gil- mer, 33 Ala. 116, 70 Am. Dec. 562. Cal. Sharp v. Hoffman 79 Cal. 404, 21 P. 846; Sierra Union Water & Mining Co. v. Baker, 70 Cal. 572, 8 P. 305; Mallett v. Swain, 56 Cal. 171; Robinson v. Western Pae. R. Co., 48 Cal. 409; BCicks v. Coleman, 25 Cal. 122, 85 Am. Dec. 103. Colo. Taylor v. Randall, 3 Colo. 399 ; Smith v. Cissom, 1 Colo. 29. Fla. Clark v. State, 52 So. 518, 59 Fla. .9, 15; Jenkins v. Lykes, 19 Fla., 148, 45 Am. Rep. 19. 111. Edson Keith & Co. v. Eisen- drath, 192 111. App. 155; Illinois Cent. R. Co. V. Ferrell, 108 111. App. 659. . Ind. Blaeketer v. Hbuse, 67 Ind. 414; Murray v. State., 26 Ind. 141; Atkinson v. Gwin, 8 Ind. 376 ; Ledley V. State, 4 Ind. 580. Kan. State v. Sparks, 99 P. 1130, 79 Kan. 548. Ky. Letton v. Young, 2 Mete. 558 ; Kennedy v. Cunningham, 2 Mete. 538 ; Carey v. Callan's Ex'rs, 6 B. Mon. 44 ; Hughes V. Robinson, 1 T. B. Mon. 215, 15 Am. Dec. 104; Hallowell v. Hal- lowell, 1 T. B. Mon. 130. La. State v. Ryan, 30 La- Ann. 1176 ; Hathcock v. Gray, 22 La. Ann. 472 ; State v. McClanahan, 9 La. Ann. 210; Buel v. The New York, 17 La. 541 ; Penn v. Collins, 5 Rob. 213. Me. Poland v. McDowell, 96 A. 834, 114 Me. 511; McKown v. Pow- ers, 86 Me. 291, 29 A. 1079 ; State v. Richards, 85 Me. 252, 27 A. 122; State V. Wilkinson, 76 Me. 317. Mass. Jones v. Newton St. Ry. Co., 71 N. E. 114, 186 Mass. 113 ; Mc- Coy V. Jordan, 69 N. E. 358, 184 Mass. 575; Spooner v. Handley, 151 Mass. 313, 23 N. E. 840; Lee v. Gibbs (10 Allen) 248. Mich. People V. Wallin, 55 Mich. 497, 22 N. W. 15 ; Maclean v. Scripps, 18 Fla. Lester v. State, 37 Fla. 382, 20 So. 232; Shepherd v. State, 36 Fla. 374, 18 So. 773. Ky. Reed v. Commonwealth, 7 Bush, 641 ; Burns v. Commonwealth, 3 Mete. 13. La. State V. Johnson, 68 So. 843, 137 La. 505 ; State v. Harris, 31 So. 782, 107 La. 325 ; State v. West, 30 So. 119, 105 La. 639 ; State v. Wright, 28 So. 909,. 104 La. 44. Minn. State v. Shtemme, 158 N. W. 48, 133 Minn. 184. Mo. State V. Bailey, 88 S. W. 733, . 190 Mo. 257; State v. Westlake, 61 S. W. 243, 159 Mo. 669; State v. Sacre, 141 Mo. 64, 41 S. W. 905 ; State V. Hilsabeck, 132 Mo. 348, 34 S. W. 38. Mont. Territory v. O'Brien, 7 Mont. 38, 14 P. 631. N. M. Territory v. Watson, 78 P. 504, 12 N. M. 419. N. C. State v. Foster, 90 S. E. 785, 172 N. C. 960. Okl. Patterson v. State, 113 P. 216, 4 Okl. Cr. 542. Tex. Gould V. State, 146 S. W. 172, 66 Tex. Cr. R. 122; Id., 146 S. W. 179 (first and second eases), 65 Tex. Cr. R. 662; Id., 146 S. W. 179 (third ease) ; Martin v. State, 25 Tex. App. 557, 8 S. W. 682; Robinson v. State, 24 Tex. 152. In capital cases, an exception to the text rule exists in Louisiana. State V. Wright, 28 So. 909, 104 La. 44. § 509 INSTRUCTIONS TO JURIES 934 on the failure of the court to reduce its instructions to writing," 18 N. W. 209, 52 Mich. 214, denying rehearing 17 N. W. 815, 52 Mich. 214. Minn. Skaggs v. Illinois Cent. B. Co., 145 N. W. 381, 124 Minn. 503; Sembum v. Duluth Iron Range R. Co., 141 N. W. 523, 121 Minn. 439; Block V. Great Northern Ry. Co., 118 N. W. 1019, 106 Minn. 285. Hiss. Georgia Pac. Ry. Co. v. West, 66 Miss. 310, 6 So. 207 ; Haynie V. State, 32 Miss. 400. Mo. State V. Cantlin, 118 Mo. 100, 23 S. W. 1091; Waller v. Hannibal & St. J. R. Co., 83 Mo. 608; Devlin V. Clark, 31 Mo. 22; Thompson v. Russell, 30 Mo. 498; Bradley v. Creath, 27 Mo. 415 ; Powers v. Allen, 14 Mo. 367 ; Bompart v. Boyer, 8 Mo. 234; Naughton v. Stagg, 4 Mo. App. 271. Neb. Smith v. Kennard, 74 N. W. 859, 54 Neb. 523 ; Glaze v. Parcel, 40 Neb. 732, 59 N. W. 382 ; Levi v. Fred, 38 Neb. 564, 57 N. W. 386 ; Roach v. Hawkinson, 34 Neb. 658, 52 N. W. 373 ; Schroeder v. Rinehard, 25 Neb. 75, 40 N. W. 593 ; Nyce v. Shaffer, 20 Neb. 507, 30 N. W. 943 ; Warrick v. Rounds, 17 Neb. 411, 22 N. W. 785; Black V. Winterstein, 6 Neb. 224. Nev. Lobdell v. Hall, 3 Nev. 507. N. H. Nadeau v. Sawyer, 59 A. 369, 73 N. H. 70; Pitman v. Mauran, 40 A. 392, 69 N. H. 230; .First Nat. Bank of Gonic v. Ferguson, 58 N. H. 403. N. C. State V. Wiseman, 101 S. B. 629, 178 N. C. 784, rehearing denied 102 S. B. 706. Okl. St. Louis & S. F. R. Co. v. Fling, 127 P. 473, 36 Okl. 25. Pa. General Roofing Mfg. Co. v. Greensburg Title & Trust Co., 71 Pa. Super. Ct. 373. S. C. Parks v. Laurens 06tton Mills, 56 S. E. 234, 75 S. 0. 560; Hatchell v. Chandler, 40 S. B. 777, 62 S. C. 380; South Carolina R. Co. V. Wilmington, C. & A. R. Co. 7 S. C. 410; Fox V. Savannah & C. B. Co., 4 S. C. 543. Tex. Colorado & S. By. Co. v. Rowe (Civ. App.) 224 S. W. 928; Thomas v. Corbett (Civ. App.) 211 S. W. 806; Edwards v. State, 166 S. W. 517, 73 Tex. Cr. R. 380; Texas Brewing Co. v. Walters (Civ. App.) 43 S. W. 548 ; Corn v. State, 41 Tex. 301 ; Williams v. State, 4 Tex. App. 5. Vt, State V. Clark, 37 Vt. 471. Ziimiting time after delivery of charge for formulating objections thereto. In a broker's action for commission, where the court's charge submitted only three issues and the controlling issues were exceedingly few and simple, and the court ad- journed from 11:45 a. m. until 2:30 p. m., requiring that all special issues be prepared in the interval, and ap- pellant prepared and filed objections to the court's charge, and it does not appear what further objections ap- pellant wanted to prepare, the as- signment that the court erred in not granting more time must be overruled. Varn v. Moeller (Tex. Civ. App.) 216 S. W. 234. Exception to refusal of request. Where defendant's couasel seasonably presented his requests for rulings, he was not required to except to their refusal until the end of the charge. Maxwell v. Massachusetts Title Ins. Co., 92 N. B. 42, 206 Mass. 197. Inability of party to present ob- jections before retirement of jury. Where a case was submitted to the jury two hours before the ex- piration of the term by limitation,- and the court refused to detain the jury to give a party time to reduce his objections to the instructions to writing and present the same; but gave him permission to present them within a reasonable time after the jui-y had retired, which was done, the fact that the objections were not tak- en before the jury retired does not. deprive such party of the benefit thereof. Dalton v. Moore (C. C. A. Alaska) 141 F. 311, 72 C. O. A. 459. An exception to a refusal to grant a request for an instruction, made im- mediately after the Jury had retired, was not too late where the judge had directed the jury to take the case as soon as he had concluded his remarks about said request. State v. Pirlot, 38 A. 656, 20 R. I. 273. 19 Ala. Louisville & N. R. Co. v. t»35 OBJECTIONS AND EXCEPTIONS §509 on its failure to observe the statutory requirement that the charge be written in consecutively numbered paragraphs,*'* on its failure to read the charge to the jury,*"- on misstatements by the court of the evidence,** and on the alteration of written instructions by inter- lineation.** ■ In some jurisdictions objections to the charge, not made prior to the reading of it to the jury, cannot be considered.** Under this rule exceptions taken after the jury have retired, and when they have returned to ask for further instructions, are too late.*® In the great majority of jurisdictions objections or exceptions made or taken after verdict to the action of the court with respect to charging the jury are too late,** and such rule cannot be waived by the parties after the verdict.*' Hall, 91 Ala. 112, 8 So. 371, 24 Am. St Rep. 863. Axk. E. O. Barnett Bros. v. Por- ter, 203 S. W. 842, 134 Ark. 268. Fla. Hubbard v. State, 37 Pla. 156, 20 So. 235 ; Gibson v. State, 26 Fla. 109, 7 So. 376; Baker v. Chatfield, 23 Fla. 540, 2 So. 822 ; West v. Black- shear, 20 Fla. 457. Mich. Garton v. Union City Nat. Bank, 34 Mich. 279. Mo. State V. Dewitt, 53 S. W. 429, 152 Mo. 76. Tex. Franklin v. State, 2 Tex. App. 8; Browning v. State, 1 Tex. App. 96. ITtah. tFnited States v. Gough, 8 Utah, 428, 32 P. 695. 20 Gibson v. Sullivan, 18 Neb. 558, 26 N. W. 368. 21 State V. Clark, 63 S. E. 402, 64 W. Va. 625. 22 Me. Skene v. Graham, 100 A. 938, 116 Me. 202; State v. Fenlason, 78 Me. 495, 7 A. 385; Jameson v. Weld, 45 A. 299, 93 Me. 345 ; Knight V. Thomas, 7 A. 538. Micb. Middlebrook v. Slocum, 116 N. W. 422, 152 Mich. 286^ N. C. State v. Wiseman, 101 S. E. 629, 178 N. O. 784, rehearing denied 102 S. E. 706; State v. Caylor, 101 S E 627 178 N. C. 807 ; Ball-Thrash Co. V. McCormick, 90 S. B. 916, 172 N. C 677. S. C. State V. Jones, 21 S. C. 593. 28 Tracy v. State, 46 Neb. 361, 64 N. W. 1069. 21 N. M. State V. Lucero, 171 P. 785. 24 N. M. 343. Tex. Shumaker v. Byrd (Civ. App.) 203 S. W. 461; Ochoa v. Edwards (Civ. App.) 189 S. W. 1022 ; Arensman V. State, 187 S. W. 471, 79 Tex. Cr. R. 546 ; McPherson v. State, 182 S. W. 1114, 79 Tex. Cr. R. 93; Walker v. State, 181 S. W. 191, 78 Tex. Cr. R. 237; McLaughlin v. Terrell Bros. (Civ. App.) 179, S. W. 932 ; Consolidat- ed Kansas City Smelting & Refining Co. V. Schulte (Civ. App.) 176 S. W. 94 ; Glasper v. State, 174 S. W. 585, 76 Tex. Cr. R. 310 ; Missouri, K. & T. Ry. Co. of Texas v. Smith (Civ. App.) 172 S. W. 750'; Bodkins v. State, 172 S. W. 216, 75 Tex. Cr. R. 499; Gulterrez v. State, 170 S. W. 717, 75 Tex. Cr. R. 119 ; Bldridge v. Citizens' Ry. Co. (Civ. App.) 169 S. W. 375 ; Hawkins v. State, 168 S. W. 93, 74 Tex. Or. R. 452. 2 5 Hayes v. Solomon, 90 Ala. 520, 7 So. 921 ; Garoutte v. Williamson, 108 Cal. 135, 41 P. 35, 413. 2 8 U. S. Illinois Cent. R. Co. v. Skaggs, 36 S. Ct. 249, 240 U. S. 66, 60 L. Ed. 528, affirming judgment Skaggs V. Illinois Cent. R. Co., 147 N. W. 1135, 125 Minn. 532; Reagan v. Aiken, 138 U. S. 109, 11 Sup. Ct. 283, 27 Parr v. Swigart, 13 Utah, 150, 44 P. 711. 510 INSTRUCTIONS TO JURIES 936 § 510. Rule permitting objections after retirement of jury or after verdict In some jurisdictions, in the absence of any rule to the contrary or under statutory provisions, such an objection or exception may be taken aftef the retirement of the jury and before the return of their verdict,** and in a few jurisdictions there is statutory au- 34 L. Ed. 892; (D. C. Wash.) Brent V. Ohas. H. Lilly. Co., 202 F. 335. Ala. Bynum v. Southern Pump & Pipe Co., 63 Ala. 462. Colo. Taylor v. Randall, 3 Colo. 399. Dak. Cheatham v. Wilber, 1 Dak. 335, 46 N. W. 580. Fla. Weightnovel v. State, 35 So. 856, 46 Fla. 1 ; Basterlin v. State, 31 So. 350, 43 Fla. 565; Morrison v. State, 28 So. 97, 42 Fla. 149. Idabo. State v. Hurst, 39 P. 554, 4 Idaho, 345. Ind. Neff v. Masters, 89 N. E. 846, 173 Ind. 196; 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. La. State V. Mitchell, 53 So. 561, 127 La. 270 ; State v. Bush, 41 So. 793, ' 117 La. 463; Vaughan v. Vaughan, 3 Mart. (O. S.) 215. Mass. Nagle v. Laxton, 77 N. B. 719, 191 Mass. 402; Nixon v. Ham- mond, 12 -Gush. 285. Minn. Turritin v. Chicago, St P., M. & O. Ry. Co., 104 N. W. 22^, 95 Minn. 408 ; Barker v. Todd, 37 Minn. 370, 34 N. W. 895. Miss. Anderson v. Hill, 12 Smedes & M. 679, 51 Am. Dec. 130. Mo. Houston V. Lane, 39 Mo. 495 ; Devlin v. Clark, 31 Mo. 22; Mattingly V. Moranville. 11 Mo. 604; Randolph V. Alsey, 8 Mo. 656. Neb. Bradstreet v. Grand Island Banking Co., 131 N. W. 956, 89 Neb. 590; Watson v. Roode, 30 Neb. 264, 46 N. W. 491. N. H. Willard v. Stevens, 24 N. H. 271. N. Y. People V. Spohr. 100 N. B. 444, 206 N. Y. 516 ; Banker v. Fisher, 55 Hun, 605, 7 N. Y. S. 732 ; De Leon V. Echeverria, 45 N. Y. Super. Ct. 240 ; Koster v. Noonan, 8 Daly, 231. N. C- Barefoot v. Lee, 83 S. B. 247, 168 N. C. 89 ; Phif er v. Commis- sioners of Cabarrus County, 72 S. E. 852, 157 N. C. 150; State v. Hart, 116 N. C. 976, 20 S. E. 1014 ; State v. Nicholson, 85 N. C. 548; State v. Caveness, 78 N. C. 484. R. I. Meyers v. Briggs, 11 R. I.^ 180; Sarle v. Arnold, 7 Ri. I. 582. S. C. Warren v. Lagrone, 12 S. C. 45. Tex. Hall V. Stancell, 3 Tex, 400. ■Utah. People v. Thiede, 11 Utah, 241, 39 P. 837. Va. Newport News & O. P. Ry. & Electric Co. v. Bradford, 37 S. E. 807, 99 Va. 117; Collins v. George, 46 S. B. 684, 102 Va. 509. W. Va. Carder v. Bank of West Virginia, 34 W. Va. 38, 11 S. B. 716 ; Wustland v. Porterfleld, 9 W. Va. 438. Wis. Thrasher v. Postel, 79 Wis. 503, 48 N. W. 600 ; Nicks v. Town of Marshall, 24 Wis. 139. In Massachusetts, the rule for- merly was that exceptions to the in- structions to the jury in the court of common pleas might be first alleged after verdict returned. Inhabitants of Buckland v. Inhabitants of Charle- mont, 3 Pick. 173. But see Train v. Collins, 2 Pick. 145. 2 8 N. Y. Hunt y, Becker, 160 N. Y. S. 45, 173 App. Civ. 9 ; Broadway Trust Co. V. Fry, 83 N. T. S. 103, 40 Misc. Rep. 680; Polykranas v. Krausz, 77 N. T. S. 46, 73 App. Div. 583 ; Panama R. Co. V. Johnson, 58 Hun, 557, 12 N. ■Y. S. 499. Wash. Radburn v. Fir Tree Lum- ber Co., 145 P. 632, 83 Wash. 643; State V. Neis, 123 P. 1022, 68 Wash. 599; State v. Vance, 70 P. 34, 29 Wash. 435. W. Va. Nadenbousch v. Sharer, 2 W. Va. 285. Wis. Gehl v. Milwaukee Produce Co., 93 N. W. 26, 116 Wis. 263. In Michigan the rule of the text 937 OBJECTIONS AND EXCEPTIONS 510 thority for the taking of such exceptions after verdict,** or at any- time before the entry of final judgment,^" and in one jurisdiction obtained under R. S. 1846, p. 161, § 62. Doyle v. Stevens, 4 Mich. 87. Discretion of court. The court may, in the exercise of its discretion, allow exceptions to Instructions to the jury, although they were not taken until after the jury had with- drawn to consider of their verdict. St. John V. Kldd, 26 Gal. 263. Reqairement tbat exceptions be taken, if practicable, before the return of tie -verdict. Rule 58 of the Circuit Court for the District of Montana, which permits exceptions to the charge of the court or to the re- fusal of instructions requested to be . taken after the jury have retired, but, if practicable, before the verdict has been returned, was intended to permit such course to be followed, where it would be in the interest of justice by avoiding the confusion of the jury or where fuBther Instructions were given in the absence of counsel, and not to permit exceptions generally to be tak- en after the close of the trial contrary to the settled rule of the federal courts; and where the judge, after instructing the jury but before send- ing them out, retired to his room with counsel and there heard and allowed the exceptions, the rule does not re- quire him to afterward entertain or allow further exceptions. Montana Min. Co. V. St. Louis Mln. & Mill. Co., 147 F. 897, 78 C. C. A. 33, judg- ment reversed 27 S. Ct. 254, 204 U. S. 204, 51 L. Ed. 444. Failure to reduce to -writing. Exceptions to instructions because given orally must be taken at the time notwithstanding the statutory provi- sion that exceptions to instructions may be taken at any time before the motion for a new trial. Taylor v. Kldd, 129 P. 406, 72 Wash. 18: 2 9 Iowa. State v. Smith, 180 N. W. 4; Patterson v. Chicago, M. & St. P. Ry. Co., 70 Iowa, 593, 33 N. W. 228 ; Parker v. Middleton, 65 Iowa, 200, 21 N. W. 562 ; Deere v. Needles, 65 Iowa, 101, 21 N. W. 203; Bailey v. Ander- son, 61 Iowa, 749, 16 N. W. 134. Pa. Sikorski v. Philadelphia & R. Ry. Co., 103 A. 618, 260 Pa. 243 ; Com- monwealth V. Shobert, 49 Pa. Super. Ct. 871 ; Same v. Debussey, Id. ; Com- monwealth V. Lynch, 49 Pa. Super. Ct. 370; Commonwealth v. Sweeney, Id. ; Commonwealth v. Duffy, 49 Pa. Super. Ct. 344. Wash. State v. Peeples, 129 P. 108, 71 "Wash. 451. In lo-nra, section 3705a of the 1913 Supplement to the Code, which specif- ically required that all objections or exceptions must be made before the reading- of the instructions to the jury, and on which section the decisions in Freeby V. Town of Sib- ley, 167 N. W. 770, 183 Iowa, 827, and Seitsinger v. Iowa City Electric Ry. Co., 165 N. W. 205, 182 Iowa, 739, are based, was repealed by Acts 37th Gen. Assem. c. 24. Haman v. Pres- ton, 173 N. W. 894, ISg Iowa, 1292. In North Carolina exceptions for omission to charge must be before- verdict, though for error in the charge they may be taken within 10 days after adjournment. State v. Harris, 26 S. B. 774, 120 N. C. 577. In Pennsylvania, the former prac- tice required that the attention of the court should be called to errors in its charge before the retirement of the jury. McGinley v. Philadelphia & R. Ry. Co., 101 A. 825, 257 Pa. 519; First Nat. Bank of Hanover v. Delone, 98 A. 1042, 254 Pa. 409 ; Tolson v. Phila- delphia Rapid Transit Co., 93 A. 1017, 248 Pa. 227; Commonwealth v. Min- ney, 65 A. 31, 216 Pa. 149, 116 Am. St. Rep. 763 ; Commonwealth v. Has- kell, 2 Brewst. 491 ; Commonwealth V. Taylor, 65 Pa. Super. Ct. 113; Thompson v. W. P. Zartman Lumber Co., 55 Pa. Super. Ct. 302 ; Barter v. Whitebread, 38 Pa. Super. Ct. 10. Extension of time. The giving of time within which to file a motion for a new trial, and in arrest of judg-, ment, does not extend the time for filing exceptions to instructions. Leach v. Hill. 97 Iowa, 81, 66 N. W. 69 ; Henry v. Henry (Iowa) 179 N. W. 856. 30 Keck V. Bushway, 90 N. E. 196 242 111. 441; Collins Ice Cueam Co. v. Stephens, 59 N. B. 524, 189 IlL 200 ? § 511 INSTRUCTIONS TO JURIES 938 an error upon the face of the charge may be availed of by an ex- ception entered within a specified time after adjournment for the term.^^ § 511. Extension of time Trial courts should give reasonable opportunity to counsel to reserve exceptions to any instructions which they deem injurious to the rights of their clients,*^ and in some jurisdictions the court has power, on good cause shown, to extend the time within which exceptions to a charge may be taken, either before or after the time limited therefor has elapsed.** Such a power should not be exercised to condone an unreasonable delay in preparing excep- tions,** or, under some of the statutes, in the absence of a show- ing of excusable neglect.** C. MoDB OF Making OBjScTroNS and Mannbr of Taking and Noting Exceptions § 512. Mode of making objections in general A party complaining of an instruction should first state his particular objection to it when it is given, and if such objection is overruled an exception should then be reserved.** An exception once properly taken to an instruction is not waived by the failure of the party so excepting to object to a subsequent instruction em- bodying the same principle.*'' In some jurisdictions a request by a litigant for a special charge may fulfill the function of an excep- tion to the main charge because of its failure to cover the subject of the_ special request.** Indeed, it is held that the proper remedy State V. Hofer, 164 N. W. 79, 39 S. before verdict, when the mistake, If D. 281; Uhe v. Chicago, M. & St. P. any, can be corrected. Phillips v. Ry. Co.. 4 S. D. 505, 57 N. W. 484. Wilmington & W. R. Co., 41 S. E. 805, Application of pule. In South 130 N. C. 582. Dakota, under the statute providing 32 Brewer v. State, 165 P. 634, 13 that "exceptions to the giving or re- Okl. Cr. 514 ; Fowler v. State, 126 P. fusing any instruction, or to its modi- 831, 8 Okl. Cr. 130. fication or change, may be taken at 33 Lindblom v. Sonstelie, 86 N. W. any time before the entry of final 357, 10 N. D. 140. judgment," there is no distinction be- s* State v. Lucker, 40 S. C. 549. IS tween instructions given at the re- S. E. 797. quest of counsel and those given by so State, v. Brown, 165 N. W. 987, 39 the court of its own motion. Uhe v. S. D. 567. Chicago, M. & St. P. Ey. Co., 4 S. D. so Sheets v. Iowa State Ins. Co., 126 505, 57 N. W. 484. S. W. 413, 226 Mo. 613 ; Ross v. Say- si H. G. Williams & Co. v. Harris, lor, 104 P. 864, 39 Mont. 559. 49 S. E, 954, 137 N. O. 460. s? Baltimore & O. R. Co. v. Lee, 55 Failure to reduce to writing. An S. E. 1, 106 Va. 32. objection to a failure to put a charge ss Ft. Worth & D. C. Ry. Co. v. Al- in writing is waived by not excepting corn (Tex. Civ. App.) 178 S. W, 833. 939 OBJECTIONS AND EXCEPTIONS § 513 for an omission in an instruction is not an exception to the instruc- tion given, but a request to the court to give one supplying or cov- ering the omission and the saving of a proper exception to a refusal of such request,^® and a party who has excepted to the refusal of the court to grant a request properly declaring a rule of law is not re- quired to again except to a subsequent instruction of the court de- claring the law to be otherwise than that contained in the request.** Where, however, a request for an instruction is refused, and a modified or independent proposition is given instead, the party who considers himself aggrieved must except to the refusal to charge as requested and also take an independent exception to the charge as given.*^ A party objecting to an instruction which has been given on his own request should accompany his objection by a withdrawal of such request.*^ § 513. General requirements with respect to manner of taking and noting exceptions At some time exceptions to the charge of the court must be re- duced to writing, together with so much of the charge as is nec- essary to explain them.*^ If" exceptions are taken orally under a statute so permitting, they must be noted on the minutes of the court.** That counsel indicates to the court that he believes it is about to make an erroneous ruling on instructions does not constitute a sufficient exception to the ruling when made.*® In some jurisdic- tions the points of exceptions to instructions should be designated while the jury are at the bar, and it is improper practice to permit formal exceptions to be then noted and the specification of the objection to be supplied in the record later.*^ Exceptions to instructions may be reserved by bill of exceptions,*' and under some statutory provisions a party taking an exception to an instruction must preserve it by a bill of exceptions signed by the trial judge.** 3 9 Taggart v. McKinsey, 85 Ind. 392. ^s Territory v. O'Brien, 7 Mont. 38, 40 Long-Bell Lumber Co. v. Stump 14 P. 631; Monroe v. Elburt, 1 Neb. 1 ina. -L. ^lo. ^5 Gerber v. ^tna Indemnity Co., 41 Brozek v. Steinway Ey. Co. of -^2 p. 272, 61 Wash. 184. Long Island City, -55 N. B. 395, 161 40 Mountain Copper Co. v. Van N. Y. 63, affirming judgment 48 N. Y. Buren (C. 0. A. Cal.) 133 F. 1, 66 C. C. S. 345, 23 App. Div. 623; 48 N. Y. S. 4.. 151. 1101, 23 App. Div. 626. 47 Landers.v. Beck, 92 Ind. 49. 42-Texas & P Ry. Co. v. Williams *» Owens v. Missouri Pac. Ry. Co., (Tex. Civ. App.) 196 S. W. 230. 67 Tex. 679, 4 S. W. 593. § 514 INSTRUCTIONS TO JURIES . 940 § 514, Noting exceptions on margin of instructions In a considerable number of jurisdictions, however, an excep- tion to an instruction is sufficiently preserved by a notation by the trial court on the margin of such instruction of the fact of such exception.** In some jurisdictions there are statutory provisions dispensing with the filing of a formal bill of exceptions, and per- mitting a party to preserve his exceptions to the giving or refusal of instructions by writing, at the close of each instruction, "Given and excepted to" or "Refused and excepted to." "** Such a provision is not satisfied by an omnibus exception to a number of instructions,^^ and such a memorandum under some of these provisions is required to be signed by the party or his attor- ney, or by the trial judge, and dated.®* In one jurisdiction a sign- ing of such notation by either the party or his attorney, or the trial judge, is sufficient,^* and it has been held that the failure of the trial judge to sign an instruction so excepted to cannot preju- dice the rights of an appellant." Where such a memorandum is signed by the attorneys of a party, however, the court should be made acquainted with what has been done.^® § 515. Knowledge of court or opposing party A mere statement by counsel to the official reporter that he wish- es it understood that he saves an exception to the charge of the 4 9 Clement v. Brybread, 78 N. W. B. 305, 28 Ind. App. 101; Eoose v. 235, 108 Iowa, 701 ; Bennett v. Mc- Eoose, 145 Ind. 162, 44 N. B. 1 ; Wade Donald, 72 N. W. 268, 52 Neb. 278. v. Guppinger, 60 Ind. 376; Ledley v. 50 Muncie & P. Traction Co. v. State, 4 Ind. 580. Black, 89 N. E. 845, 173 Ind. 142; Indi- Md. Central Ry. Co. of Baltimore ana, I. & I. R. Co. v. Bundy, 53 N. E. v. Coleman, 80 Md. 328, 30 A. 918. 175, 152 Ind. 590; Lower y. Franks, Ratification of memorandum 115 Ind. 334, 17 N. E. 630; "Wade v. ivitliout actual signature. Where Guppinger, 60 Ind. 376. ' counsel, when instructions were given, 51 Inland Steel Co. v. Smith, 75 N. indicated in open court their desire to E. 852, 89 Ind. App. 636, judgment af- except thereto, and afterwards them- firmed 80 N. E. 538, 168 Ind. 245; selves noted their exceptions by a Sherlock v. First Nat. Bank of Bloom- memorandum on the margin of the ington, 53 Ind. 73 ; Ludwig v. Black- instructions, it was held that the shere, 71 N. W. 356, 102 Iowa, 366. court, in overruling a motion to strike 5 2 Ind. Retseck v. Harhart, 96 N. E. from the record such memorandum, 386, 176 Ind. 441; NefE v. Masters, 89 ratified the notation, and, such nota- N. E. 846, 173 Ind. 196 ; Muncie & P. tion being in accordance with the Traction Co. v. Black, 89 N. B. 845, facts, there was no error in the ruling. 173 Ind. 142 ; Grand Rapids & I. Ry. Blumer v. Bennett, 44 Neb. 873, 63 Co. V. King, 83 N. B. 778, 41 Ind. N. W. 14. App. 701; Inland Steel Co. V. Smith, ss Gwinn v. Hobbs (Ind. App.) 118N. 80 N. E. 538, 168 Ind. 245, affirming E. 155. Judgment 75 N. B. 852, 39 Ind. App. 5 4 Gibbs v. Wall, 10 Colo. 153, 14 P. 636; Malott v. Hawkins, 63 N. B. 808, 216. 159 Ind. 127; Ayres v. Blevins, 62 N. so Hawley v. State, 69 Ind. 98. 941 OBJECTIONS AND EXCEPTIONS § 516 court does not amount to an exceptlon.^^ The requirement found in some statutes that exceptions to instructions be filed is proba- bly for the purpose of bringing them to the attention of the court,®' and under a statute requiring that exceptions to instructions be stated to the court, specifying the parts of the charge excepted to, and that they be, by him or by the clerk, noted in the minutes or embodied in the record, exceptions which are merely filed, and never called to the attention of the court, are not available on appeal.®* Exceptions to instructions are sufficient, although the trial judge does not hear them, if they are dictated by the attorneys in his presence in open court and he has opportunity to hear them.®* In some jurisdictions a party is not required to submit to the opposing counsel his objections to the charges given,^* but in other jurisdictions it has been held that, since a party is entitled to full notice of all the proceedings in the case, the taking of exceptions to instructions outside of the court room and without the knowl- edge of the adverse party, even if done by the consent of the , court, is as much a wrong to such adverse party as it would be to the court, if its consent had not been previously obtained.^^ § 516. Necessity of formal exception A formal exception to rulings on instructions may be unneces- sary, where the court states, on making such rulings, that it grants an exception to the party complaining thereof.** By virtue of a custom or statutory provision the rulings of the court in giving or refusing instructions may be deemed excepted to although no exceptions were actually taken,** but in absence of such a custom or statute the mere agreement of counsel cannot have such an ef- fect.** The mere handing to the trial judge of written requests for 56 Coleman v. Gilmore, 49 Cal. 340. S. W. 656, 148 Mo. App. 216; State v. 5 7 Territory v. O'Brien, 14 P. 631, Reilly, 141 N. W. 720, 25 N. D. 339; 7 Mont. 38. Missouri Pae. Ry.f!o. v. Eabb, 3 Will- 5 8 Coteey V. Seattle Electric Co., 109 son. Civ. Cas. Ct. App. § 37. P. 202, 59 Wash. 686. Effect of election to file excep- 5 9 Ongaro v. Twohy, 94 P. 916, 49 tions. In North Dakota, a party Wash. 93. may, if he sees fit, elect to file excep- 60 Atchison, T. & S. F. Ey. Co. v. tions with the clerk of court to the Smith (Tex. Civ. App.) 190 S. W. 761. instructions given to~ the jury, and if "1 Oher V. Schenck, 65 P. 1073, 23 he does so elect he must be governed Utah, 614. by such election and will he limited to 62 Mitchell V. Turner, 149 N. T. 39, the exceptions which he has filed. 43 N. B. 403. State v. Campbell, 72 N. W. 935, 7 63 Watson V. Dickens, 12 Smedes & N. D. 58. M. (Miss.) 608 ; Union Loan, Storage «* Herman v. JefCries, 4 Mont. 513, & Mercantile Co. ' v. Parbstein, 127 1 P. 11. § 517 INSTRUCTIONS TO JURIES 943 instructions does not necessarily imply that if the requests are not granted an exception is saved.^® D. Sufficiency of Objections or Exceptions with Respect to Their Substance § 517. Oral charges An exception to a charge on the ground that it is oral must be taken by objecting to the manner in which it is given and not ta the matter thereof.^^ Where oral instructions are given as a con- tinuous and connected charge, it is not proper to treat each para- graph thereof as a separate instruction for the purpose of objec- tion.6' All exception to an oral charge is sufficiently saved, where it is excepted to orally and the exceptions are taken by the stenogra- pher and certified in the case made.^* In one jurisdiction it is held, that there is no practice allowing an exception taken by descrip- tion of a subject treated by the court in an oral charge, without precisely designating the statement of the court objected to.** § 518. Joint exceptions A joint exception by two defendants to the giving of certain instructions, which are incorrect as to only one of the defendants, constitutes no basis for a reversal of a judgment rendered against them.'* E. Rule That Exceptions to Instructions or the Refusal Thereof Should be Specific § 519. In general While in some jurisdictions a general exception to the charge of the court is authorized,'^ and is sufficient without pointing out 65 Leyland v. Pkigree, 134 Mass. judgment 136 N. Y. S. 600, 152 App. 367; South Carolina E. Co. v. Wil- Div. 881. mington, C. & A. R. Co., 7 S. C. 410. 7i Williams v. Commonwealth, 80 66 Moses V. Loomis, 55 111. App. 342. Ky. 313, 4 Ky. Law Kep. 3 ; City of 6T Harmon v. Callahan, 187 111. App. ' Cincinnati v. Anderson, 19 Ohio Cir. 312. Ct. R. 603, 10 O. C. D. 522. 6 8 Hurst V. Hill, 122 P. 513, 32 Okl. Failure to reqnire specific ob- 532. jeotion. A general exception is suflS- 89 Birmingham Ry., Light & Power cient when the charge is erroneous Co. V. Friedman, 65 So. 939, 187 Ala. and the party is not asked to more 562. specifically state his exception. Stra- 7 Marshall v. Lewark, 117 Ind. der v. Marietta & 0. Ry. Co., 13 Ohio 377, 20 N. E. 253 ; Jones v. Gould, 103 I>ec. 895, 2 Cin. Super. Ct. Eep'r, 268. N. E. 720, 209 N. Y. 419, reversing In Iowa, the rule prior to the Re- 943 OBJECTIONS AND EXCEPTIONS §519 in detail the specific instructions challenged,''^ the practice of tak- ing general and obscure exceptions to the charge at the moment, in order to cover the case and enable counsel, on subsequent criti- cal examination, to raise points which have never been suggested, at all to the mind of the trial judge, is objectionable on many- grounds,'* and the general rule in most jurisdictions is that an ex- ception to the instructions as an entirety is not tenable,'* but that, on the contrary, exceptions to the charge of the court must point out some definite or specific defect,'^ this rule requiring, in vision was that a general .exception taken to the whole of the judge's charge entitled the excepting party to present for review an erroneous posi- tion in any portion of the charge, and this rule governs in all actions begun before the Eevision took effect. Wil- . helmi v. Leonard, 13 Iowa, 330. 7 2 Ervin V. St; Louis, I. M. & S. Ry. Co., 139 S. W. 498, 158 Mo. App. 1. Even in this jurisdiction, it is said that the practice so much indulg- ed in of using a general objection as a cover for a trap to be sprung in the appellate court should not be counte- nanced in cases where the trial court has endeavored to guard against er- ror by calling' for specific objections. De Ford v. Johnson, 133 S. W. 393, 152 Mo. App. 209. 73 Turner v. People, 33 Mich. 863. 74 tr. S. (O. C. A. N. C.) Newman V. Virginia, T. & C. Steel & Iron Co., 80 F. 228, 25 C. C. A. 382 ; (C. O. A. Ohio) American Issue Pub. Co. v. Sloan, 248 F. 251, 160 C. C. A. 329. Cal. Love v. Anchor Raisin Vine- yard Co., 45 P. 1044, 114 Cal. xvi. D. C. Ryan v. Washington & G. R. Co., 8 App. D. C. 542. 111. St. Louis & S. F. R. Co. v. Puterbaugh, 117 111. App. 569; Con- tinental Investment & Loan Soc. v. Schubnell, 63 111. App. 379. Ind. Kelly V. John, 13 Ind. App. 579, 41 N. E. 1069. Mass. Savage v. Marlborough St. Ry. Co., 71 N. E. 531, 186 Mass. 203. Neb. Penn v. Trompen, 100 N. W. 312, 72 Neb. 273 ; Barton v. Shull, 97 N. W. 292, 70 Neb. 324; American Fire Ins. Co. v. Landfare, 76 N. W. 1068, 56 Neb. 482. N. H. Guertin v. Town of Hudson, 53 A. 736, 71 N. H. 505; Harris v. Smith, 52 A. -854, 71 N. H. 330. N. Y. Ebenreiter v. Dahlman, 42 N. Y. S. 867, 19 Misc. Rep. 9. N. C. Roberts v. Baldwin, 71 S. E. 319, 155 N. C. 276; State v. Melton, 26 S. B. 933, 120 N. C. 591; Burnett v. Wilmington, N. & N. Ry. Co., 26 S. E. 819, 120 N. C. 517 ; Andrews v. Postal Tel. Co., 25 S. E. 955, 119 N. C. 403. S. O. Gable V. Rauch, 27 S. E. 555, 50 S. C. 95. Vt. Luce V. Hassam, 58 A. 725, 76 Vt. 450 ; Gregg v. Willis, 45 A. 229, 71 Vt. 313. Wis. Lee v. Hammond, 90 N. W. 1073, 114 Wis. 550. 7 5 U. S. (D. C. Cal.) United States V. Hammond, 226 F. 849 ; (C. 0. A. N. Y.) Gilson V. United States, 258 F. 588, 169 O. C. A. 528, certiorari denied 40 S. Ct. 119, 251 U. S. 555, 64 L. Ed. 412. Ark. Missouri Pac. E, Co. v. Block, 218 S. W. 682, 142 Ark. 127, certiorari denied 40 S. Ct. 586, 253 U. S. 493, 64 L. Ed. 1029 ; Rogers v. Rob- ertson, 218 S. W. 206, 142 Ark. 210; St. Louis Southwestern Ry. Co. v. Wyman, 178 S. W. 423,-119 Ark. 530; Bain v. Ft. Smith Light & Traction Co., 172 S. W. 843, 116 Ark. 125, L. R. A. 1915D, 1021; Rittenhouse v. Bell, 153 S. W. 1111, 106 Ark. 315. . Colo. Meek v. Smith, 149 P. 627, 59 Colo. 461 ; Willard v. Williams, 50 P. 207, 10 Colo. App. 140. D. C. District of Columbia v. Dur- yee, 29 App. D. C. 327, 10 Ann. Cas. 675. Iowa. King v. Chicago, R. I. & P. Ry. Co., 172 N. W. 268, 185 Iowa, 1227. Mass. Chestnut v. Sawyer, 126 N. E. 273, 235 Mass. 46 ; SulUvan v. Shee- han, 173 Mass. 361, 53 N. E. 902 ; Me- 519 INSTRUCTIONS TO JURIES 944 Kee V. Tourtellotte, 167 Mass. 69, 44 N. E. 1071, 48 L. R. A. 542 ; Hopcraft V. Kittredge, 162 Mass. 1, 37 N. E. 768. Mich. Geary v. People, 22 Mich. 220. Minn. Finance Co. of Pennsyl- vania V. Old Pittsburgh Ooal Co., 65 Minn. 442, 68 N. W. 70. Nev. Week v. Keno Traction Co., 149 P. 65, 38 Nev. 285. N. J. Addis V. Rushmore, 65 A. 1086, 74 N. J. Law, 649 ; Smith v. At- lantic City R. Co., 65 A. 1000, 74 N. J. liaw, 452. N. M. Probst V. Trustees of Board of Domestic Missions, 3 N. M. (Johns.) 237, 5 P. 702. N. Y. Jones v. Gould, 103 N. B. 720, 209 N. T. 419, reversing judgment 136 N. Y. S. 600, 152 App. Div. 881; Ellis V. People, 21 How. Prac. 356. N. D. Russell V. Olson, 1.33 N. W. 1030, 22 N. D. 410, 37 L. R. A. (N. S.) 1217, Ann. Cas. 1914B, 1069; Pease v. Magill, 115 N. W. 260, 17 N. D. 166. Okl.. Higgins V. Street, 92 P. 153, 19 Okl. 45, 13 L. R. A. (N. S.) 398, 14 Ann. Cas. 1086. Pa. Sgier v. Philadelphia & R. Ry. Co., 103 A. 730, 260 Pa. 343. R. I. Ralph. V. Taylor, 82 A. 279, 33 R. I. 503, reargument denied 82 A. , 495. S. C. Township Com'rs of St. An- drews Parish v. Charleston Min. & Mfg. Co., 57 S. E. 201, 76 S. C. 382; I^earson v. Spartanburg County, 29 S. E. 193, 51 S. C. 480. S. D. Wood V. Dodge, 120 N. "W. 774, 23 S. D. 95. Wis. Robinson v. Dow, 145 N. W. 652, 155 Wis. 605. In Pennsylvania, It is held that, while the statute requires the reasons for a general exception to a charge to be given, it does not demand minute particularization. Sikorski v. Phila- delphia & R. Ry. Co., 103 A. 618, 260 Pa. 243. Illustrations of objections or exceptions held too general and indefinite to be available on ap- peal. A general exception to one sentence in a charge of ten para- graphs to a jury. Brooks v. Dutcher, 24 Neb. 300, 38 N. W. 780. An excep- tion "to so much of" a long and elab- orate charge "as requires the evidence should show there was an intention to deceive." Phoenix Assur. Co. v. Luck- er (C. C. A. S. C.) 77 F. 243, 23 C. C. A. 139. An objection to Instructions as having been given on a certain theory, and that "some of them fall far short of stating the law, even upon that theory, fully and correctly." Baltimore & O. S. W. Ry. Co. v. Spaulding, 52 N. E. 410, 21 Ind. App. , 323. An exception "to all of the ^charges and to the special request 'asked by defendant for the reason that they are liable to mislead the jury, and for the reason that the jury in its verdict would pass upon these questions." Alt v. Chicago & N. W. Ry. Co., 5 S. D. 20, 57 N. W. 112^. An objection that a charge fails to submit the real issue. Thom- as V. Parker, 69 Ga. 283. An excep- tion "to the definition of ordinary care, and also In regard to the ad- missions," in the charge of the court in an action for negligence. Elmborg V. St. Paul City Ry. Co., 51 Minn. 70, 52 isr. W. 969. An exception that the court erred in not- confining the jury in their finding to the special matters of negligence set out and relied, on by plaintiff, without showing how the court failed In that regard. Central R. R. V. Freeman, 75 Ga. 331. A gen- eral objection to each and all the in- structions given, on a trial, that they are not law, or were misleading to the jury. Gum v. Murray, 6 Mont. 10, 9 P. 447. An exception that "the charge of the court, as a whole, is not a full and fair presentation of the law of the case." Chambers v. Walker, SO Ga. 642, 6 S. E. 165. An exception, "in misdirecting the jury as to what would constitute the proximate cause of an injury in any given case." Tucker v. Charleston & W. C. Ry. Co., 28 S. E. 943, 51 S. C. 306. An excep- tion that the court erred in omitting to correct any erroneous impressions made on the minds of the jury by the charge so widely at variance with de- fendant's requests as to be impossible of reconcilement therewith. Cross- well V. Coiuiecticut Indemnity Ass'n, 29 S. E. 236, 51 S. 0. 469. An excep- tion, that "his honor erred In com- menting upon the facts in connection 945 OBJECTIONS AND EXCEPTIONS §519 with the case in his charge." Hayes V. Sease, 29 S. B. 259, 51 S. O. 534. An exception to an" instruction in that it charged, as the law applicable to the case, principles of law in regard to possession and boundaries which are correct in an action between gran- tor and grantee, but not where there is no dispute between them, and said issues are raised by a stranger who has no legal title to any of the land. Connor v. Johnson, 30 S. E. 833, 53 S. C. 90. Exceptions alleging error in giving or refusing certain numbered requests for instructions, or "in charg- ing on the facts" or in not getting a verdict aside. Walters v. Laurens Cotton Mills, 31 S. E. 1, 53 S. C. 155. An objection that certain instructions given fpr plaintiff were on the wrong theory^ and tliRt defendants' which we're refused should have been given. Ilgenfritz v. Missouri Pac. Ry. Co., 155 S. W. 854, 169 Mo. App. 652. An exception to the last half of a charge: "The jury will determine the amount of land actually taken and fenced in, and the statements made by the agents of the railroad company in the presence of the plaintiff are compe- tent to prove what is actually taken." Bigelow V. West Wisconsin Ry. Co., 27 Wis. 478. Where, in an action for libel, the court charged that several parts of the publication were libelous per se, and some of the parts so point- ed out were confessedly so, an excep- tion "to the portions of the charge wherein it is stated that certain parts of the publication are libelous per se" is too broad, and therefore bad. Cun- ningham V. Underwood (C. C. A. Tenn.) 116 F. 803, 53 C. C. A. 99. Where, in a personal injury case, an instruction stated three distinct phas- es of the case relating to the measure of plaintiff's recovery, an exception that the charge "does not properly state the measure of plaintiff's dam- ages or recovery, under the allega- tions of the complaint," is insufficient, for indefiniteness. McDonough v. Great Northern Ry. Co., 46 P. 334, 15 Wash. 244. Where, in an action for personal injuries, the court instructs the jury that plaintiff's expenses for medical treatment should be allowed, and a general exception is taken to INST.TO JTJEIES— 60 such instruction as a whole, it being claimed on appeal that there \Yas no evidence that he expended anything for such treatment, the exception will not be sustained, because not sufficient- ly specific at the time of taking. Hul- ehan v. Green Bay, W. & St. P. R. Co., 68 Wis.-520, 32N. W. 529. In an action for malicious prosecution bas- ed on the institution of a suit for false representations as to the exist- ence of a partnership between plain- tiffs, an exception to an instruction as to probable cause "that if the defend- ant made false representations to his counsel, then he would not be pro- tected, if counsel advised him that he had a good suit," held too general, since the false representations must have been as to material facts, and must have been considered and relied upon by counsel in giving advice as to the institution of the suit. Bonazzi v. Portney, 110 A. 439. 94 Vt. 263. Objectioits to instimctioiL ion maxim of "falsns in nno," etc. Where the court charged that, if the jury found that any witness had sworn falsely on any material fact in the case, his testimony might be dis- regarded unless coi^roborated by oth- er reliable witnesses, a general ex- ception is not sufficient to call the attention of the court to the fact that before the testimony could be rejected the jury must find that the witness had knowingly or willfully sworn falsely. Dallemand v. Janney, 51 Minn. 514, 53 N. W. 803. Esceptions beld sufficiently spe- cific to raise particular questions. An exception to an instruction, on the ground that it assumes facts not prov- ed in the case, need not point out spe- cifically wherein it assumes such fact. Davis V. Strohm, 17 Iowa, 421. In an action to recover for the death of plaintiff's son, an exception to the portions of the general charge on the measure of damages as contrary to law is sufficiently specific to raise the question of the correctness of the charge on one element of damag- es, since all the elements together constitute the measure of damag- es, and, If one element was wrong- ly stated, the measure was a de- fective one. Wales v. Pacific Elec- §519 INSTRUCTIONS TO JURIES 946 trie Motor Co., 62 P. 932, 130 Cal. 521. In an action for damages re- sulting from defendant's negligence, an exception to so much of the "charge as says that plaintiff is en- titled to damages for the loss of serv- ices of his wife incurred during her sickness" alleged to have' been caus- ed by negligence, and a request to charge that plaintiff is not entitled to recover any such damages on the ground that he has failed to give any evidence showing what damages were sustained by reason of the loss of such services, fairly present the ques- tion of the sufficiency of plaintiff's evidence to entitle him to recover for the loss of the wife's services. Munk V. City of Watertown, 67 Hun, 261, 22 N. Y. S. 227. In an action for the negligent killing of a boy of tender years, an exception "to the language of the court with regard to the degree of care imposed on the boy" sufficiently points out the er- ror in the charge stating the degree of care required of him. McDonald V. Metropolitan St. Ky. Co., 78 N. Y. S. 284, 75 App. Div. 559, rehearing denied 80 N. Y. S. 577, 80 App. Div. 283. Where a trial judge erroneous- ly charged that a husband, in an ac- tion for injuries to his wife, might recover compensation for loss of his wife's assistance in the household duties, and, secondly, recompense for the hire of a woman to do certain work which the wife had done before her injury, an exception in the words of the charge is sufficient in the ab- sence of a requirement by the trial court that the ground of exception be more specifically stated. Janson v. Goerke Co., 65 A. 856, 74 N. J. Law, 270. In action against railroad for damage to shipment, paragraph of written objections to charge which complained that in submitting issue of rough handling language placed higher duty on defendant than law required in not requiring finding of negligence sufficiently indicated to trial court vice in charge. Panhandle & S. F. Ry. Co. V. Wright Herndon Co. (Tex. Civ. App.) 195 S. W. 216. Where a trial judge erroneously sub- mits to the jury the question wheth- er defendant's negligent agent is a vice principal, or a fellow servant with plaintiff, an exception is suffi- cient which is taken to that para- graph of the charge treating most ex- tensively of this subject, "because said instruction does not properly state the rule whereby it is to be de- termined whether an employ^ is a coemploy^ or fellow servant, said in- struction going much further, as to the liability of an employer for acts of coelnploygs, than the law justi- fies," In connection with a further exception that, at the time of the al- leged injury,- plaintiff was a coem- ploy6 witji the man whose negligence caused the injury. What Cheer Coal Co. V. Johnson (C. C. A. Iowa) 56 Fed. 810, 6 O. C. A. 148. Where the court charged that plaintiff'^ evi- dence had two aspects: Firsfcj that the switchman had left the switch properly set, but that In some way not known it had been displaced ; and, second, that there was a defect in the switch rail, so that the en- gine would be likely to take and did take the wrong track, and the court further charged that, if the switch by some inadvertence became set for the wrong track, it would be necessary to consider whether the absence of a switch lock was negligence; the plaintiff claiming that if it had been locked the accident would not have happened, and the defendant except- ed, for that there was no evidence from which the jury could determine whether the switch was in the posi- tion it was by intent, inadvertence, or the intervention 6i trespassers, and for that there was no evidence that through some misadventure or the trespass of some one the switch, if properly set, was changed to the wrong track, it was held that the ex- ception was sufficiently explicit, if the charge was bad in any of the par- ticulars specified. Place v. Grand Trunk Ry. Co., 76 A. 1110, 83 Vt. 498. Objections or exceptions lield insufficient to raise particular questions. In an action for damages sustained by plaintiff in collision be- tween his horse and buggy and de- fendant's motor truck, general objec- tion to instruction that, if the driv- er of the truck failed to exercise or- 947 OBJECTIONS AND EXCEPTIONS §519 some jurisdictions, that the grounds of the objection be stated,'" dinary care, defendant was guilty of negligence, was not sufficient to call trial court's attention to objection that instruction might be construed as intimating that there was negli- gence as a matter of law. Bennett v. Snyder (Ark.) 227 S. W. 402. On an issue as to defendant's adverse pos- session, an instruction that adverse possession is to be taken strictly, and that every presumption is in favor of possession subject to the title of the true owner, was not obnoxious to a general objection, but the defect should have beerf pointed out by spe- cific objections. Fox v. Spears, 93 S. W. 560, 78 Ark. 71. The instruction that it was defendant's duty, in constructing its road, to use ordinary care to provide j^oper openings or culverts for escape of all waters to cause the water to overflow the crossing its roadbed by means of nat- ural drains and depressions so as not lands of upper proprietors, which by such care could have been guarded against; and if defendant failed to provide such openings, and by reason thereof plaintiff's lands were over- flowed, and his crops injured, defend- ant was negligent, and verdict should be for plaintiff — considered as a whole, shows an intent to charge that, if defendant failed to use ordi- nary care to provide sufficient open- ings for escape of the water, and plaintiff's lands were overflowed and his crop injured, he could recover, so that speciflc objection, pointing out the failure to do so by proper words, was necessary. Ames Shovel & Tool Co. V. Anderson, 118 S. W. 1013, 90 Ark. 231. A general objection to an in- struction;' defining the measure of damages, in an action for personal in- juries, does not reach the objection that the court erred in including as an element of damage pecuniary loss, in the absence of evidence of such damage. Ft. Smith Light & Traction Co. v. Carr, 93 S. W. 990, 78 Ark. 279. A .general objection to an instruction, requiring that carriers "must be ex- tremely careful" to avoid injuring passengers, was insufficient to call to the trial court's attention the con- tention that the words quoted were incorrect. Midland Valley R. Co. v. Hamilton, 104 S. W. 540, 84 Ark. 81. Where in slander plaintiff proved the use of the words alleged in the com- plaint, but some of the witnesses tes- tified to the use of words substantial- ly different, though amounting to the charge complained of, a general ob- jection to an instruction, authorizing a verdict for plaintiff if defendant falsely uttered words which in their common acceptation amounted to the slander complained of, was not suf- ficient, but a specific objection calling attention to the failure to ' limit the application to substantially the words of the complaint was necessary. Townsley v. Yentsch, 135 S. W. 882, 98 Ark. 312. In action against city for injuries from fall on icy crosswalk, where court in the same instruction stated city's duty with relation to walks and crosswalks, an objection that the instructions did not com- pletely instruct as to the respective duties of the city and the pedestrians on the matter of street crossings held not sufficiently specific to advise court that the city was contending that there is a difference between city's duty with respect to sidewalks and its duty with respect to street cross- ings. Blackmore v. City of Council Bluffs (Iowa) 176 N. W. 369. 7 6 u. S. (C. C. A. Wash.) Pacific Telephone & Telegraph Co. v. Hoff- man, 208 F. 221, 125 C. C. A. 421. Ind. City of Aurora v. Cobb, 21 Ind. 492. Iowa. Ludwig v. Blackshere, 71 N. W. 356, 102 Iowa, 366; Brantz v. Marcus, 73 Iowa, 64, 35 N. W. 115; Patterson v. Chicago, M. & St. P. Ry. Co., 70 Iowa, 593, 33 N. W. 228; Benson v. Lundy, 52 Iowa, 265, 3 N. W. 149 ; Miller v. Gardner, 49 Iowa, 234; Eyser v. Weissgerber, 2 Iowa, 463; Millard v. Singer, 2 G. Greene. (Iowa) 144. Mass. Emmons v. Alvord, 59 N. B. 126, 177 Mass. 466. N. H. Emery v. Boston & M. R. B., 361 A. 367, 67 N. H. 434. N. Y. Haas v. Brown, 47 N. Y. S. 606, 21 Misc. Rep. 434, affirming judg- §519 INSTRUCTIONS TO JURIES 948 and ordinarily the particular part of the charge of which complaint is made should be set out or pointed out,'"' and it is held that such rule, being mainly established for the protection of the prevailing ment (Civ. Ct. N. T.) 46 N. T. S. 540. 20 Misc. Rep. 672 ; Goldman v. Abra- hams, 9 Daly, 223. N. C. Joines v. Johnson, 45 S. E. 82'8, 133 N. 0. 487 ; Hampton v. Nor- folk & W. R. Co., 27 S. E. 96, 120 N. C. 534, 35 L. R. A. 808. Ohio. Behrens v. Behrens, 47 Ohio St. 323, 25 N. E. 209, 21 Am. St. Rep. 820; Pittsburgh, Ft. W. & C. Ry. V. Probst, 30 Ohio St. 104. S. C. Tinsley v. Western Union Telegraph Co., 51 S. E. 913, 72 S. C. 350; Carter & Co. v. Kaufman, 45 S. E. 1017, 67 S. C.' 456; Gallmani v. Union Hardwood Mfg. Co., 43 S. E. 524, 65 S. C. 192. See, also, post, § 526, note 62. In Iowa, the grounds of objection need not be stated, where the ex- ceptions are taken at the time of giving instructions. H. B. Harden- burg & Co. V. Roberts, 125 N. W. 818, 146 Iowa, 696. lu Ne-nr York, it has been held that an exception to an instruction which points out the language com- plained of by repeating the identical words is sufficient without stating the reason why the charge Is consid- ered erroneous. Davenport v. Pren- tice, 110 N. Y. S. 1056, 126 App. Dlv. 451. In TTtab, it is provided by statute that no reason need be given for ex- ceptions taken to instructions. Ev- erts V. Worrell, 197 P'. 1043. 77 IT. S. (C. C, A. Iowa) Chicago Great Westerfi Ry. Co. v. McDon- ough, 161 P. 657, 88 C. C. A. 517 ; (C. C. A. Ky.) Hindman v. First Nat. Bank, 112 F. 931, 50 C. C. A. 623, 57 L. R. A. 108. Ala. Birmingham Ry., Light & Power Co. v. Cockrmn, 60 So. 304, 179 Ala. 372. Conn. State v. Tripp, 81 A. 247, 84 Conn. 640. D. C. Traver v. Smolik, 43 App. D. C. 150. Ga. Pordham v. State, 37 S. B. 391, 112 Ga. 228. Iowa. Willig v. Schertz, 175 N. W. 321, 188 Iowa, 712. Me. Field v. Lang, 36 A. 984, 89 Me. 454; Atkins v. Field, 36 A. 375, 89 Me. 281, 56 Am. St. Rep. 424. Minn. Nelson v. Chicago, M. & St. P. Ry. Co., 165 N. W. 866, 139 Minn. 52. N. J. Smith V. Atlantic City R. Co., 65 A. 1000, 74 N. J. Law, 452. N. Y. Rheinfeldt v. Dahlman, 43 N. Y. S. 281, 19 Misc. Rep. 162., Ohio. Adams v. State, 29 Ohio St. 412. Or. Reimers v. Pierson, 113 P. 436, 58 Or. 86. Vt. In re Haftly's Will, 109 A. 19, 94 Vt. 128. Objections to oral charge. Ex- ception merely describing subject treated by court in an oral charge is bad, and hence exception merely designating beginning parts of oral charge excepted to is insufficient. Ex parte Cowart, 77 So. 349, 201 Ala. 55, reversing judgment Cowart v. State, 75 So. 711, le Ala. App. 119. An exception to a charge is suf- ficiently specific, when it distinctly points out the particular parts to which it is directed. Scott v. Astoria R. Co., 72 P. 594, 43 Or. 26, 62 L. R. A. 543, 99 Am. St. Rep. 710. Illustrations of sufficient ex- ceptions. An exception "to that part of your honor's charge in which you submit to the jury whether the di- rection of [the foreman] to put his ladder upon the track relieved plain- tiff from contributory negligence" is sufficiently definite to cover whatever the court said in submitting the ques- tion referred to to the jury. Date v. New York Glucose Co., 93 N. Y. S. 249, 104 App. Div. 207. An exception to Instructions between certain num- bers given, and to each of them. Is sufficiently speciflc, when the objec- tion is made at the time the instruc- tions are given. Mann v. Sioux City & P. R. Co., 46 Iowa, 637. An excep- tion that "the plaintifE moved for S49 OBJECTIONS AND EXCEPTIONS §520 party and being in furtherance of justice, cannot be abrogated by the practice of any trial court.'* One of the purposes of such rule being to give the court an op- portunity, if convinced of error in its charge, to correct it,'* the test of the sufficiency of an exception is whether it fairly directs the attention of the court to the claimed error.** An objection to a charge should be as deiinite as an assignment of error to it is required to be.*^ § 520. Specific applications of rule Under this rule a general exception to an entire charge and to each and every part thereof cannot be sustained,** unless the whole instructions Nos. 1, 2, and 3, whicli were given, to which defendant ex- cepted, and still excepts," is sufficient. Poston V. Smith's Ex'r, 8 Bush (Ky.) 589. 7 8 Eldred v. Oconto County, 33 Wis. 133. '9 Birmingham Ey., Light & Power Co. V. Jackson, 73 So. 627, 198 Ala. 378 ; Schneider v. Winkler, 70 A. 731, 74 N. J. Law, 71. 8 In re Chisholm's Will, 108 A. 393, 93 Vt. 453; Jenks v. State, 17 Wis. 665. 81 Cleburne St. Ry. Co. v. Barnes ' (Tex. Civ. App.) 168 S. W. 991. 82 U. S. Holder v. U. S., 150 U. S. 91, 14 S. Ct. 10, 37 L. Ed. 1010; Van Stone v. Stillwell & Bierce Mfg. Co., 142 V. S. 128, 12 S. Ct. 181, 35 L. Ed. 961; Block v. Darling, 140 U. S. 234, 11 S. Ct. 832, 35 L. Ed. 476; Burton v. West Jersey Ferry Co., 114 U. S. 474, 5 S. Ct. 960, 29 L. Ed. 215; Washington & G. R. Co. v. Vamell, 98 U. S. 479, 25 L. Ed. 233 ; Stimpson v. Westchester R. Co., 4 How. 380, 11 L. Ed. 1020; (C. C. A. 111.) Cleveland, C, C. & St. L. Ry. Co. V. Zider, 61 P. 908, 10 C. C. A. 151; (C. C. A. N. Y.) Park Bros. & Co. V. Bushnell, 60 F. 583, 9 C. C. A. 138; (C. C. A. Va.) Thorn v. Pit- tard, 62 F. 232, 10 C. O. A. 352. Ala. Stevenson v. Moody, 83 Ala. 418, 3 So. 695; South & North Ala- bama R. Co. V. McLendon, 63 Ala. 266. Ark. Lambeth v. Ponder, 33 Ark. 707. CaJ. Bernstein v. Downs, 112 Cal. 197, 44 P. 557; Cavallaro v. Texas & P. R. Co., 110 Cal. 348, 42 P. 918, 52 Am. St. Rep. 94 ; Frost v. Grizzly BlufC Creamery Co., 102 Cal. 525, 36 P. 929; Moore v. Moore, 4 Cal. Unrep. 190, 34 P. 90; GlUaspie v. Hagans, 90 Cal. 90, 27 P. 34; Cock- rill V. Hall, 76 Cal. 192, 18 P. 318; Dixon V. Allen, 69 Cal. 527, 11 P. 179 ; Brown v. Kentfield, 50 Cal. 129 ; Sill V. Reese, 47 Oal. 294; Shea v. Petrero & B. V. B. Co., 44 Cal. 414 ; Hicks V. Coleman, 25 Cal. 122, 85 Am. Dec. 103. Colo. Holman v. Boston Land & Security Co., 8 Colo. App. 282, 45 P. 519; Jacobs v. Mitchell, 2 Colo. App. 456, 31 P. 235; Patrick Red Sandstone Co. v. Skoman, 1 Colo. App. 323, 29 P. 21; ijdwards v. Smith, 16 Colo. 529, 27 P. 809; Wray v. Carpenter, 16 Colo. 271, 27 P. 248, 25 Am. St. Rep. 265; McS'eters v. Pierson, 15 Colo. 201, 24 P. 1076, 22 Am. St. Rep. 388; Keith v. Wells, 14 Colo. 321, 23 .P. 991; Wooton v. Seigel, 5 Colo. 424; Coon v. Rlgden, 4 Colo. 275. Dak. McCormack v. Phillips, 4 Dak. 506, 34 N. W. 39; Kennedy v. Falde, 4 Dak. 319, 29 N. W. 667. Ga. Rogers v. Rogers, 74 Ga. 598 ; Rogers v. Tillman, 72 Ga. 479 ; Sauls- bury V. Wimberly, 60 Ga. 78 ; Harris V. Harris, 53 Ga. 678; Smith v. At- wood, 14 Ga. 402. Idaho. Black v. City of Lewiston, 2 Idaho (Hash.) 276, 13 P. 80. 111. Razor v. Razor, 142 111. 375, 31 N. E. 678 ; Mather Electric Co. v. Matthews, 47 111. App. 557; Cincin- §520 INSTRUCTIONS TO JURIES 95Qf charge is erroneous, or is erroneous in its general scope or mean- iiati, L. & O. R. Co. v. Ducharme, 4 111. App. 178. Ind. Baker v. McGinniss, 22 Ind. 257 ; City of Aurora v. Cobb, 21 Ind. 492; Hawk v. Crago, 12 Ind. 369; Branham v. State, 11 Ind. 553 ; State V. Bartlett, 9 Ind. 569. Iowa. Leach v. Hill, 97 Iowa, 81, 66 N. W. 69; Byford v. Girton, 90 Iowa, 661, 57 N. W. 588; Reeves v. Harrington, 85 Iowa, 741, 52 N. W. 517; Patterson v. Chicago, M. & St. P. Ry. Co., 70 Iowa, 593, 33 N. W. 228 ; Stevens v. Taylor, 58 Iowa, 664, 12 N. W. 625; Benson v. Lundy, 52 Iowa, 265, 3 N. W. 149; Pitman v. Molsberry, 49 Iowa, 339; King v. Ly- man, 46 Iowa, 703 ; Moore v. Gilbert, , 46 Iowa, 508 ; Davenport Gaslight & Coke Co. V. City, of Davenport, 13 Iowa, 229 ; Abbott v. Striblen, 6 Iowa, 191. Kan. Fleming v. L. D. Latham & Co., 48 Kan. 773, 30 P. 166 ; Ryan v. Madden, 46 Kan. 245, 26 P. 679; Young V. Toungman, 45 Kan. 65, 25 P. 209 ; Haak v. Struve, 38 Kan. 326, 16 P. 686; State v. Wilgus, 32 Kan. 126, 4 P. 218 ; Fullenwider v. Ewing, 25 Kan. 69 ; City of Atchison v. King, <. 9 Kan. 550. Me. State v. Pike. 65 Me. 111. Mass. ' Chenery v. Fitchburg R. Co., 160 Mass. 211, 35 N. B. 554, 22 L. R. A. 575; Hunting v. Downer, 151 Mass. 275, 23 N. E. 832 ; Rock v. In- dian Orchard Mills, 142 Mass. 522, 8 N. E. 401; Curry v. Porter, 125 Mass. 94. Mich. McAllister v. Bngle, 52 Mich. 56, 17 N. W. 694 ; Pray v. Cad- well, 50 Mich. 222, 15 N. W. 92 ; Geary v. People, 22 Mich. 220, Minn. StefCenson v. Chicago, M. & St. P. Ry. Co., 51 Minn. 531, 53 N. W. 800 ; Cole v. Curtis, 16 Minn. 182 (Gil. 161) ; Foster v. Berkey, 8 Minn. 351 (Gil. 310). Mont. McKinstry v. Clark, 4 Mont. 370, 1 P. 759. Neb. City of Omaha v. McGavock, 47 Neb. 313, 66 N. W. 415 ; Hedrick V. Strauss, 42 Neb. 485, 60 N. W. 928 ; First Nat. Bank v. Lowrey, 36 Neb. 290, 54 N. W. 568 ; Walker v. Turner, 27 Neb. 103, 42 N. W. 918; Brooks v. Dutcher, 24 Neb. 30O, 38 N. W. 780; Hotel Ass'n of Omaha v. Walters, 23 Neb. 280, 36 N. W. 561; Brooks v. Dutcher, 22 Neb. 644, 36 N. W. 128. N. H. Reynolds v. Boston & M. R. Co., 43 N. H. 580. N. J. Oliver v. Phelps, 21 N. J. Law, 597; Potts v. Clarke, 20 N. J. _ Law, 536. N. Y. Mann v. City of Brooklyn, 63 Hun. 627, 17 N. Y. S. 643 ; People V. McKenna, 58 Hun, 609, 12 N. Y. S. 493; Newlin v. Lyon, 49 N. Y. 661; Requa v. City of Rochester, 45 N. Y. 129, 6 Am. Rep. 52 ; Oldfield v. New York & H. R. Co., 14 N. Y. 310; Cald- well V. Murphy, 11 N. Y. 416; Jones; V. Osgood, 6 N. Y. 233 ; Robinson v. New York & B. R. Co., 27 Barb. 512 ; McBurney v. Cutler, 18 Barb. 203; Garland v. Day, 4 B. D. Smith, 251; Simpson v. Downing. 23 Wend. 316. N. C. Kendriek v. Dellinger, IIT N. C. 491, 23 S. E. 438; Antietam Paper Co. v. Chronicle Pub. Co., 115 N. C. 147, 20 S. B.. 367; Shober v. Wheeler, 113 N. C. 370, 18 S. B. 328;: Davis v. Duval, 112 N. C. 833, 17 S. E. 528 ; Hemphill v. Morrison, 112 N. C. 756, 17 S. E. 535; Ward v. Albe- marle & R. Hi Co., 112 N. C. 168, 16 S. E. 921 ; Hinson v. Powell, 109 N. C. 534, 14 S. B. 301 ; Bottoms v. Sea- board & R. R. Co., 109 N. C. 72, 13 S. B. 738; Bost v. Bost, 87 N. C. 477. Ohio. Consolidated Coal & Mining Co. V. Clay's Adm'r, 51 Ohio St. 542, 38 N. B. 610, 25 L. R. A. 848 ; Behrens^ V. Behrens, 47 Ohio St. 323, 25 N. B. 209, 21 Am. St. Rep. 820 ; Everett v. Sumner, 82 Ohio St. 562; Western Ins. Co. V. Tobin, 32 Ohio St. 77; Pittsburg, Ft. W. & C. Ry. v. Probst, 30 Ohio St. 104 ; Marietta & C. R. Co. V. Strader, 29 Ohio St. 448; Butch- ers' Melting Ass'n v. Commercial Bank, 2 Dlsn. 46, 13 Ohio Dec. 29; Weber v. Wiggins, 11 Ohio Cir. Ct. R. 18, 1 O. C. D. 84. S. C. Davis V. Elmore, 40 S. C. 533, 19 S. B. 204; Dobson v. Cothran, 34 S. C. 518, 13 S. E. 679; Norton v. Livingston, 14 S. C. 177. Vt. Goodwin v. Perkins, 39 Vt. 598. Wash. Carroll v. Washington Water Power Co., 105 P. 1026, 56 Wash. 467; Cunningham v. Seattle 951 OBJECTIONS AND EXCEPTIONS §520 ing,** and a general exception to instructions, several in number and separate and distinct, given at the request of the other party, is insufficient,** and each instruction should be objected to sep- arately by number.*'' All defects of form must be met by a specific objection,*® and a general objection to an instruction is not sufficient to point out an ambiguity therein,*' nor to call the attention of the court to its inconsistency with other instructions given ** nor to a misstatement of fact therein,** nor to the fact that a word used therein should be defined,®" nor to the point that an instruction is confusing or misleading,®^ nor to the ' obj ection that an instruction erroneously assumed as a fact a matter in dispute,®^ nor to the fact that an in- Electric Ry. & Power Co., 3 Wasli. 471, 28 P. 745. Wis. Luedtke v. JefEery, 89 Wis. 136, 61 N. W. 292;.Smitli v. Coleman, 77 Wis. 343, 46 N. W. 664; Meno v. Hoeffel, 46 Wis. 282, 1 N. W. 31; Sabine v. Fisher, 37 Wis. 376 ; Strach- an V. Muxlow, 31 Wis. 207; Tomlin- son V. Wallace, 16 Wis. 224. General exception, com'bined with special exception. An exception to the charge, and to each and every part thereof, and to the whole there- of, and also to a particular, specified portion of- such charge, is inoperative except as to the part specifically de- scribed. Yates V. Bachley, 33 Wis. 185. 83Hentig v. Kansas Loan & Trust Co., 28 Kan. 617; Wheeler v. Joy, 15 Kan. 389. 84 Bard v. Blston, 31 Kan; 274, 1 P. 565. 8 5 State V. Bartlett, 9 Ind. 569; Woods V. Berry, 7 Mont. 195, 14 P. 758; McKinstry v. Clark, 4 Mont. 370, 1 P. 759. Oral instructions. Where the ju- ry is instructed orally in accordance with the statute, the various portions of the charge being given unnumbered, such portions must be particularized by number before valid exceptions may be taken thereto. Strong v. Ross, 75 N. E. 291, 36 Ind. App. 174. s» Ark. Dierks Lumber & Coal Co. V. CofCman Bros., 132 S. W. 654, 96 Ark. 505; Ft. Smith & W. By. Co. v. Messek, 131 S. W. 686, 96 Ark. 243, rehearing denied, 131 S. W. 966, 96 Ark. 243; St. Louis, I. M. & S. Ry. Co. V. Walker, 125 S. W. 135, 93 Ark. 457 ; Hamburg Bank v. George & But- ler, 123 S. W. 654, 92 Ark. 472; Ar- kansas Midland R. Co. v. Rambo, 117 S. W. 784, 90 Ark. 108; Sloan v. Little Rock Ry. & Electric Co., 117 S. W. 551, 89 Ark. 574 ; McElvaney v. Smith, 88 S. W. 981, 76 Ark. 468, 6 Ann. Cas. 458; St. Louis, I. M. & S. Ry. Co. V. Norton, 73 S. W. 1095, 71 Ark. 314; Williams v. State, 50 S. W. 517, 66 Ark. 264. N. Y. Saugerties Bank v. Mack, 54* N. X. S. 950, 35 App. Div. 398. 87 Ark. New Coronado Coal Co. v. Jasper, 222 S. W. 22, 144 Ark. 58; Huckaby v. St. Louis, I. M. & S. Ry. Co., 177 S. W. 923, 119 Ark. 179; Gar- retson-Greeson Lumber Co. v. Goza, 172 S. W. 825, 116 Ark. 277; St. Louis, I. M. & S. Ry. Co. v. Prince, 142 S. W. 499, 101 Ark. 315; St. Louis, I. M. & S. Ry. Co. V. Dunn & Stewart, 127 S. W. 464, 94 Ark. 407 ; Aluminum Co. of North America v. Ramsey, 117 S. W. 568, 89 Ark. 522. 88 Matthews v. Clough, 49 A. 637, 70 N. H. 600. , 89 Wall^er v. Collins (C. O. A. Kan.) 59 Fed. 70, 8 C. C. A. 1. 8 Mt. Nebo Anthracite Coal Co. v. Williamson, 84 S. W. 779, 73 Ark. 530; St. Louis, I. M. & S. Ry. Co. v. Barnett, 45 S. W. 550, 65 Ark. 255; Kirby v. Lower, 124 S. W. 34, 139 Mo. App. 677. 91 C. C. Emerson & Co. v. Stevens Grocer Co., 151 S. W. 1003, 105 Ark. 575; Gilroy v. Loftus, 48 N. ¥. S. 532, 22 Misc. Rep. 105. 9 2 St. Louis S. W. Ry. Co. v. Mc- Laughlin, 196 S. W. 460, 129 Ark. 377. §520 INSTRUCTIONS TO JURIES 952 struction correctly stating the law is not applicable to the evi- dence,^* nor to the use of a particular word or phrase not inap- propriate to express the idea intended to be conveyed,®* nor to any particular omission not amounting to a misdirection,®^ and an objec- tion to the failure to number instructions must be taken on that specific ground.®* An objection merely to the giving of an instruction only goes to the substance thereof,®'" and is not sufficient to raise the point on appeal that it was not reduced to writing,®* or that it was given after the jury/had partly considered the case.®® - Objections merely that a charge is argumentative,^ or not suffi- ciently specific,* or that a charge is abstract,* or misleading,* are too general, unless there is reason for supposing that the jury has actually and prejudicially been misled,^ and so is an objection to an entire charge on the ground that it contains a misstatement of the testimony,* or that an instruction intimates the opinion of the court upon the facts in the case.' 93 Quetennous v. Hatfield, 54 Ark. 16, 14 S. W. 1096 ; Graham v. State, 53 S. B. 816, 125 6a. 48 ; Central of Georgia Ry. Co. v. Bond, 36 S. E. 299, 111 Ga. 13. »*Bocquin v. Theurer, 202 S. W. 845, 133 Ark. 448; Commonwealth v. Tolman, 149 Mass. 229, 21 N. E. 377, 3 L. R. A. 747, 14 Am. St. Rep. 414; Evans v. St. Paul & S. C. R. Co., 30 Minn. 489, 16 N. W. 271. 9 5 Armour v. Pecker, 123 Mass. .143 ; Castner v. The Dr. Franklin, 1 Minn. 73 (Gil. 51). 96 Herzog v. Campbell, 47 Neb. 370, 66 N. W. 424 ; Smith v. State, 4 Neb. 277. 9 7 Omaha & F. Land & Trust Co. v. Hansen, 32 Neb. 449, 49 N. W. 456. 98 Giddings' V. McCumber, 51 111. App. 373 ; Gaynor v. Pease Furnace Co., 51 111. App. 292. Esceptions to all of instrnctioiis and to each, of them. Where the court was requested by defendant to charge the jury in writing, but, disre- garding the request, gave with cer- tain written instructions verbal ex- planations thereof and verbal instruc- tions, and no objection was made at the time, but after the bailiff had been sworn to take charge of the jury, and before the jury retired, defend- ant's attorney stated that he excepted to the instrijctions, and, when asked to specify which instructions he ex- cepted to stated that he excepted to them all, and that all included each, it was -held that the exception was sufficiently specific to raise the ques- tion of the giving of the verbal in- structions in disregard of defend- ant's request. Sutherland v. Venard, 34 Ind. 390. 99 City of Topeka v. Heitman, 47 Kan. 739, 28 P. 1096. 1 Goldstein v. Smiley, 48 N. E. 203, 168 111. 438, affirming judgment 68 111. App.. 49; Owen v. Brown, 41 A. 1025, 70 Vt. 521. 2 Chinn v. Ferro-Concrete Const. Co., 132 N. T. S. 850, 148 App. Div. 368. 3 Holman v. Herscher (Tex.) 16 S. W. 984. * Smith V. Birmingham Ry., Light & Power Co., 41 So. 307, 147 Ala. 702 ; Hunt V. Atlantic Coast Lumber Cor- poration, 85 S. E. 229, 101 S. C. 64. = Holm V. Sandberg, 32 Minn. 427, 21 N. W. 416. Keystone Lumber & Salt Mfg. Co. V. Dole, 43 Mich. 370, 5 N. W. 412. 7 Carpenter v. American Ace. Co., 46 S. C. 541, 24 S. B. 500 ; Greene v. Duncan, 37 S. C. 239, 15 S. B. 956. 953 OBJECTIONS AND EXCEPTIONS 521 § 521. Application of rule in criminal cases The above rule with respect to the necessity that exceptions to instructions be specific and definitely point out the error com- plained of, although having some relaxation in criminal cases, where it is apparent that the charge given is not applicable and tends to mislead the jury,* is generally observed in criminal prosecutions.® s Dodge V. People, 4 Neb. 220. 9 Ala. Hardin v. State, 63 Ala. 38 ; Jacoibson V. State, 55 Ala. 151; Irvin V. State, 50 Ala. 181 ; Cohen v. State, 50 Ala. 108. Ark, Burgess v. State, 158 S.' W. 774, 108 Ark. 508 ; Jackson v. State, 126 S. W. 843, 94 Ark. 169; Bell v. State, 125 S. W. 1020, 93 Ark. 600; Burnett v. State, 96 S. W. 1007, 80 Ark. 225. Fla. Carter v. State, 20 Fla. 754. Ga, Webb v. State, 69 S. E. 601, 8 Ga. App. 430; Wiley v. State, 59 S. E. 438, 3 Ga. App. 120; Wilson v. State. 69 Ga. 224 ; Wood v. State, 68 Ga. 296. Mass. Commonwealth v. Meserve, 154 Mass. 64, 27 N. B. 997. N. C. State V. Herren, 94 S. E. 698, 175 N. C. 754; State v. Downs, 118 N. C. 1242, 24 S. B. 531. Ohio. Adams v. State, 25 Ohio St. 584. Tex. Walker v. State, 151 S. W. 822, 68 Tex. Cr. R. 346; Barrett v. State (Cr. App.) 69 S. W. 144 ; Thomp- son Y. State, 32 Tex. Cr. R. 265, 22 S. W. 979 ; Goodson v. Same (Cr. App.) 22 S. W. 20 ; Cordway v. Same, 25 Tex. App. 405, 8 S. W. 670; Williams v. State, 22 Tex. App. 497, 4 S. W. 64. Uiah. People v. Hart, 10 Utah, 204, 37 P. 330. • niustrations of exceptions beld too general. An objection that a charge "was not a correct statement of the law in reference to the matters dealt with." Reed v. State, 168 S. W. 541, 74 Tex. Cr. R. 242. An objection to the charge of the court because it is insufficient. Simons v. State (Tex. Cr. App.) 34 S. W. 619. An exception to the entire charge of the court, on the ground that it is "on some mate- rial points contrary to law, and failed to charge the law applicable to the facts, and was calculated to mislead the jury." Wood v. State, 68 Ga. 296. A general exception "to all those things and specifically to the whole charge on the ground that it did hot fairly present the facts in the case." State V. Wagner (B. I.) 86 A. 147. An exception that the court erred in de- fining "malice," without pointing out wherein the error lies. People v. Thiede, 11 Utah, 241, 39 P. 837. An exception that the court erred in charging as it did on the issue of prov- ocation by mere words, when on the testimony there was no such issue in the case, and thereby misleading the jury. State v. Crosby, 70 S. B. 440, 88 S. C. 98. An exception to the trial court's definition of a " 'reasonable doubt,' setting forth that it failed to define what constitutes a reasonable doubt in a sufficiently clear and dis- tinct manner." State v. Davenport, 38 S. C. 348, 17 S. B. 37. An excep- tion to each and every clause of the court's charge, because it is upon the weight of the evidence, without speci- fying in what way it is upon the weight of the evidence, or what charge is on the weight of the evidence. Mc- Dougal V. State (Tex. Cr. App.) 103 S. W. 847. Where a bill of exceptions is reserved, to a charge as an entirety, "because it did not instruct the jury fully on the law governing his case on the facts proved," the exception is too general to be considered by this court. Quintana v. State, 29 Tex. App. 401, 16 S. W. 258, 25 Am. St. Rep. 730. Where defendant thinks an instruction liable to be, misconstrued, an exception by his counsel that it is "calculated to do their client an in- jury" is too general. State v. Tibbs, 48 La. Ann. 1278, 20 So. 735. Where a charge consists of several sentences, a general exception "to the latter por- tion of said charge" will not be con- sidered on appeal. Stroud v. State, 55 Ala. 77. An exception "to so much of the charge as commences with the words 'if the jury believe,' on the fourth line from the bottom of the §521 INSTRUCTIONS TO JURIES 954 Thus an exception to a charge "as given," ^^ or to the action of the court in giving "said instructions and each of them," is too gen- eral. ^-"^ So an exception to a charge involving a number of points that it is contrary to law,^^ or an exception that on the whole charge the court presented the case in a manner to prejudice the defendant, is too general,^* and a general exception to the charge is insufficient to raise the point that a part of the charge requires- the jury to consider outside matters not proven at the trial.-^*_* preceding page." Stroud v. State, 55 Ala. 77. A general objection to an in- struction as a whole was insufficient to raise an objection to a clause that the jury was not at liberty to "doubt as jurors if they believed as men." Thomas v. State, 86 S. W. 404, 74 Ark. 431. An exception to the con- tents of a written charge is insuffi- cient to present a question as to an oral statement made in connection with the charge. Peelle v. State, 68 N. E. 682, 161 Ind. 378. An objection that the court's charge was not suffi- ciently clear in reference to the weight to be given dying statements does not specify plainly the alleged error, in that it fails to set out in what respect the charge was not clear or accurate. Boynton v. State, 41 S. B. 995, 115 Ga. 587.' In a prosecution for homi- cide, an objection to the giving of cer- tain instructions, made solely on the ground that they did not entirely cover all the facts of the case under the law, and as not being complete and sufficient under the law, was in- sufficient, where on such objection be- ing made, the trial court requested counsel to state which questions, if any, were not covered by the instruc- tions given, to which counsel made no reply. State v. West, 100 S. W. 478, 202 Mo. 128. The charge which the court gave on the law relating to good character being in substance correct, the exception to the same, presenting the objection that it "was general, and not specific as to the law of good character, and did not give to the jury the law in relation thereto," was itself defective, in that it failed to point out in what respect the charge was incomplete, or what it required to render it sufficiently full and speci- fic. Barber v. State, 37 S. B. 885, 112 Ga. 584. Illustrations of ezceptioii.s held sufficiently specific. An exception, taken at the time of the delivery of the charge of the court, "to all the remarks of the court in reference tO' the impeachment of" a witness nam- ed, and "to th^t part of the charge in' regard to the evidence of" such wit- ness. Brown v. United States, 17 S. Cfe 33, 164 U. S. 221, 41 L. Bfl. 410. An exception to "that part of the- charge in stating the effect of good charactej'," mado to a i)aragraph which treats only of the. proper ef- fect of evidence of good character. Edgington v. United States, 17 S. Ct. 72, 164 U. S. 361, 41 L. Ed. 467. The' following objection: "Comes now the defendants and object to all of the- instructions in this case by the court and except to the same, and espe- cially except to the court in not in- structing on ail the law in the case and not instructing on the different degrees of larceny" — is sufficient to call the court's attention to its fail- ure to embrace! in the instructions, in the event the jury should find de- fendants not guilty of burglary, the subject of laroeny from a dwelling house. State v. Nicholas, 121 S. W. 12, 222 Mo. 425. 10 State V. Moore, 26 S. B. 697, 120' N. C. 570; State v. Parker, 106 N. O. 711, 11 S. E. 517 ; State v. Prizell, 111 N. 0. 722, 16 S. E. 409. 11 Gardner v. United States (0. 0. A. Mo.) 230 F. 575, 144 C. C. A. 629. 12 Smith V. State, 67 Ga. 769 ; State V. Orfanakis, 159 P. 674, 22 N. M. 107. 13 State V. Varner, 115 N. C. 744. 20 S. B. 518. 1* Shelp V. United States (C. C. A. Alaska) 81 F. 694, 26 C. C. A. 570. 955 OBJECTIONS AND EXCEPTIONS § 522 § 522. Exceptions to instructions correct in part Unless the errors of the court in charging the jury are mani- festly grave or of a fundamental character,^^ ^j^g ^^^^ jg^ ^^^j^ j^^ civil ^® and in criminal cases/' that a general exception to a charge 15 Walker v. Windsor Nat. Bank (C. 0. A. N. H.) 56 F. 76, 5 C. C. A. 421; Robinson v. State (Ark.) 231 S. W. 2. 16 TJ. S. Norfolk & W. R. Co. v. Earnest, 33 S. Ct. 654, 229 U. S. 114, 67 L. M- 1096, Ann. Gas. 1914G, 172 ; Newport News & M. V. Co. v. Pace, 158 U. S. 36, 15 S. Ct. 743, 39 L. Ed. S87 ; Baltimore & P. R. Co. v. Mack- ■■ey, 157 V. S. 72, 15 S. Ct. 491, 39 L. Ed. 624; (C. C. A. Alaska) Ldndblom V. Fallett, 145 F. 805, 76 C. 0. A. 36^ ; Anderson, 90 N. W. 760, 64 Neb. 755 ;. Axthelm v. Chicago, R. I. & P. R. Co., 89 N. W. 313, 2 Neb. (Unof.) 444; Green v. Tierney, 87 N. W. 331, 62^ Neb. 561; Pease Piano Co. v. Camer- son, 76 N. W. 1053, 56 Neb. 561; Bennett v. McDonald, 72 N. W. 268,^ 52 Neb. 278; Adams-Smith Co. v. Hayward, 71 N. W.' 949, 52 Neb. 79 ;. Home Fire Ins. Co. v. Phelphs, 71 N. W. 303, 51 Neb. 623 ; Union Pac. Ry. Co. V. Montgomery, 68 N. W. 619, 49 Neb. 429; Blue Valley Lumber Co. V. Smith, 48 Neb. 293, 67 N. W. 159 ;. Redman v. Voss, 46 Neb. 512, 64 N, W. 1094; Omaha Fire Ins. Co. v. Dierks, 43 Neb. 473, 61 N. W. 740. N. J. Thibodeau v. Hamley, 112 A. 320. N. M. Hagin v. Collins, 110 P. 840, 15 N. M. 621. N. Y. Brozek v. Steinway Ry. Co. of r«ng Island City, 55 N. E. 395, 161 N. Y. 63, affirming judgment 48 N. T. S. 345, 23 App. Div. 623, and 48 N. Y. S. 1101, 23 App. Div. 626; Wells v. Higgins, 132 N. Y. 459, 30 N. E. 861, affirming (Sup. 1889). 5 N. Y. S. 895, 53 Hun, 629; Burdiek v. Freeman, 120 N. Y. 420, 24 N. B. 949; Btnsign v. Hooker, 6 App. Div. 425, 39 N. Y. S. 543 ; Gundlin v. Hamburg-American Packet Co. (Com. PI. N. Y.) 8 Misc. Rep. 291, 28 N. Y. S. 572 ; Wallace v. Williams, 59 Hun, 62S, 14 N. Y. S. 180; Abenheim v. Samuel, 49 Hun, 607, 1 N. Y. S. 868; Stone v. West- ern Transp. Co., 38 N. Y. 240 ; Hag- gart V. Morgan, 5 N. Y. 422, 55 Am. Dec. 350; Barker v. Savage, 31 N. Y. Super. Ct. 288; City o£ Detroit Water Com'rs v. Burr, 35 N. Y. Super. Ct. 522. N. C. Buchanan v. Cranberry Fur- nace Co., 101 S. B. 518, 178 N. C. 643; Quelch V. Futch, 94 S. E. 713, 175 N. O. 694. Ohio. City of Toledo t. Radbone, 23 Ohio Cir. Ct. R. 268. Okl. Denson v. Fowler, 155 P. 957 OBJECTIONS AND EXCEPTIONS 522 avail, if any of such propositions is correct. Under this rule a general exception to a long paragraph of a charge containing nu- 1184, 56 Okl. 670; Johnson v. John- son. 143 P. 670, 43 Okl. pi«5 ■ Olaser V. Glaser, 74 P. 944, 13 Okl. 389. Or. Hahn v. Mackay, 126 P. 991, 6^ Or. 100, modifying opinion on re- hearing 120 P. 12, 63 Or. 100 ; McAl- ister V. Long, 54 P. 194, 33 Or. 368;- Langford v. Jones, 18 Or. 307, 22 P. 1064. trtah. Rampton v. Cole, 172 P. 477, 52 Utah, 36 ; Smith v. Columbus Buggy Co., 123 P. 580, 40 Utah, 580; Grow V. Utah Light & Ry. Co., 106 P. 514, 37 Utah, 41 ; Ryan v. Curlew Irrigation & Reservoir Co., 104 P. 218, 36 Utah, 382 ; Pennington v. Redman Van & Storage Co., 97 P. 115>, 34 Utah, 223; Famsworth v. Union Pac. Coal Co.. 89 P. 74, 32 Utah, 112; Whipple V. Preece, 67 P. 1072, 24 Utah, 364; Beaman v. Martha Washington Min. Co., 63 P. 631, 23 Utah, 139; Wilson V. Sioux Consol. Min. Co., 52 P. 626, 16 Utah, 392 ; Lowe v. Salt,Lake City, 13 Utah, 91, 44 P. 1050, 57 Am, St. Rep. 708; Nelson v. Brixen, 7 Utah, 454, 27 P. 578. Vt. Barnard v. Leonard, 100 A. 876, 91 Vt. 369 ; Usher v. Severance, 80 A. 741, 86 Vt. 523; Needham v. Boston & M. R. Co., 74 A. 226, 82 Vt. 518;- Cutler v. Skeels, 37 A. 228, 69 Vt. 154; Jones v. Ellis' Estate, 35 A. 488, 68 Vt. 544 ; Morrill v. Palmer, 68 Vt. 1, 33 A. 829, 33 L. R. A. 411 ; Dickerman v. Quincy Mut. Fire Ins. Co., 67 Vt. 609, 32 A. 489 ; Rowell V. Fuller's Estate, 59 Vt. 688, 10 A. 853. AVash. Rush v. Spokane Falls & N. Ry. Co., 63 P. 500. 23 Wash. 501 ; Maling v. Crummey, 5 Wash. 222, 31 P. 600 ; Meeker v. Gardella, 1 Wash. 139, 23 P. 837. Wis. Elwell V. Bosshard, 138 N. W 46 151 Wis. 46 ; Kersten v. Weich- man, 114 N. W. 499, 135 Wis. 1; Richardson v. Babcock, 96 N. W. 554, 119 Wis. 141; Tebo v. City of Au- gusta, 90 Wis. 405, 63 N. W. 1045; Green v. Hanson, 89 Wis. 597, 62 N. W. 408 ; Corcoran v. Harran, 55 Wis. 120, 12 N. W. 408 ; Butler v. Carns, 37 Wis. 61; Hamlin v. Haight, 32 Wis. 237; Wood v. Aldrich, 25 Wis. 695 : Thrasher v. Tyack, 15 Wis. 256 ; Milwaukee & C. B. Co. v. Hunter, 11 Wis. 160, 78 Am. Dec. 699. Exceptions held insufficient within rale. In action against wa- terworks company for wrongfully cut- ting off plaintiff's water service, ex- ception to instruction entitling plain- tiff to damages for humiliation, em- barrassment, annoyance, and incon- venience," even though bad in so far as instruction applied to damages for humiliation or embarrassment, will not be sustained where not re- stricted to that portion of instruction. Birmingham Waterworks Co. v. Jus- tice, 86 So. 389, 204 Ala. 547, Where, the jury having been instructed that if the whole of defendant's personal property was not transferred to the trustee, or If he practiced any fraud upon his creditors by which they were induced to enter into the agreement, then such agreement was void from the very beginning, an exception to the whole instruction was too i.ndefi- nite to avail defendant on appeal; the second part of such instruction be- ing correct. Mtisgat v. Wybro, 33 Wis. 515. EfEect of statement that party excepts to each instruction. A general exception rioted at the end of a charge containing a number of instructions which embody separate and distinct propositions, though it states that the party excepts to each Instruction, is not sufficiently specific to challenge the correctness of any particular instruction, and raises no question for review where any of the propositions contained in the charge are correct. HoUoway v. Dun- ham, 18 S. Ct. 784, 170 U. S. 615, 42 L. Ed. 1165, affirming judgment Dunham V. Halloway, 41 P. 140, 3 Okl. 244. 17 Ala. Addington v. State, 74 So. 846, 16 Ala. App. 10; Kirk v. State, 65 So. 195, 10 Ala. App. 216; Kirk- wood v. State, 62 So. 1011, 8 Ala. App. 108, certiorari denied 63 So. 990, 184 Ala. 9; Dunn v. State, 62 So. 379, 8 Ala. App. 382 ; Sanders v. State, 61 So. 336, 181 Ala. 35; McGhee v. State, 59 So. 573, 178 Ala. 4 ; Powell 522 INSTRUCTIONS TO JURIES 958 merous statements of fact will not raise the point that a particu- V. State, 59 So. 328, 5 Ala. App. 150 ; Maxwell v. State, 57 So. 505, 3 Ala. App. 169; Johnson v. State, 57 So. 389, 3 Ala. App. 98; Treadwell v. State, 53 So. 290, 168 Ala. 96 ; Sims V. State, 4^ So. 413, 146 Ala. 109; Ragsdale v. State, 32 So. 674, 134 Ala. 24 ; Bonner v. State, 107 Ala. 97, 18 So. 226 ; Dick v. State, 87 Ala. 61, 6 So. 395; Woods v. State, 76 Ala. . 35, 52 Am. Rep. 315 ; Farley v. State, 72 Ala. 170 ; Dickey v. State, 68 Ala. 508; Gray v. State, 63 Ala. 60; Mur- phy V. State, 54 Ala. 178. Ark. Martin v. State, 107 S. W. 380, 85 Ark. 130; Johnson v. State, 104 S. W. 929, 84 Ark. 95; Darden v. State, 84 S. W. 507, 73 Ark. 315, dis- missed 26 S. Ct. 758, 200 U. S.' 615, 50 L.. Bd. 621. Colo. Wilson V. People, 3 Colo. 325. D. C. SuUiyan v. District of Co- lumbia,.20 App. D. 0. 29. Fla. Gillyard v. State, 61 So. 641, 65 Fla. 322 ; Bass v. State, 50 So. 531, 58 Fla. 1; Thomas v. State, 36 So. 161, 47 Fla. 99; Wood v. State, 31 Fla. 221, 12 So. 539 ; Smith v. State, 29 Fla. 408, 10 So. 894; Pinson v. State, 28 Fla. 735, 9 So. 706; Heron v. State, 22 Fla. 86; Willingham v. State, 21 Fla". 761. Ga. Thomas v. State, 84 Ga. 613, 10 S. E. 1016; Brassell v. State, 64 Ga. 318. La. State v. Anderson, 45 So. 267, 120 La. 331. Neb. GofE v. State, 131 N. W. 213, 89 Neb. 287. N. J. Engle V. State, 50 N. J. Law (21 Vroom) 272, 13 A. 604. N. M. Territory v. Alarid, 106 P. 371, 15 N. M. 165 ; Beall v. Territory, 1 N. M. 507. N. Y. People V. Guidid, 100 N. T. 503, 3 N. E. 493. N. C. State V. Bowman, 67 S. E. 1058, 152 N. C. 817 ; State v. Hall, 44 S. E. 553, 132 N. 0. 1094. Okl. Hufe V. Territory, 85 P. 241, 15 Okl. 376. Utai. State V. Riley, 1-26 P. 294, 41 Utah, 225. Vt. State V. Shaw, 94 A. 434, 89 Vt. 121, L. R. A. 1915F, 1087 ; State v. Ryder, 68 A. 652, 80 Vt. 422. Wis. Hayes v. State, 87 N. W. 1076, 112 Wis. 304 ; Jenks v. State, 17 Wis. 665. lUnstrations of exceptions held too general. Where, at the conclu» sion of the charge, accused "severally and separately excepted to each dis- tinct part of the court's general oral charge, and especially to the charge on the weight of the evidence, and es- pecially to the charge of setting forth the punishment of manslaughter in the first degree," it was held that such exception was a mere general excep- tion to the charge as a whole, and was unavailing unless the charge was entirely erroneous. Untreiner v. State, 41 So. 285, 146 Ala. 26. Where, after the court had made remarks to the Jury on their returning into court, including the statement that if they could not reconcile the testimony they must adopt the most plausible theory of the evidence, and they had again re- tired, defendant's counsel merely call- ed attention to the fact that the court had left out the question of reasona- ble doubt, whereupon the court re- called the jury and repeated what he had said, and his charge in full, and added that the state must satisfy them beyond a reasonable douht, de- fendant's general exception then tak- en cannot be treated as made to the use of the word "plausible." State v. Dewey, 51 S. E. 937, 139 N. C. 556. Instruction on reasonable doubt. An instruction as to reasonable doubt, which, after defining such doubt as an actual doubt which a juror is con- scious of after reviewing in his mind the entire case, "giving consideration to all the testimony, and one which he believes would cause a reasonable man in any matter of like importance to hesitate to act, denies the notion that any mere possibility is sufficient ground for such a doubt, and adds that, in the performance of jury serv- ice, jurors should decide controversies as they would any important question in their own affairs, is good as against a general exception. Holt v. United States, 31 S. Ct. 2, 218 U. S. 245, 54 959 OBJECTIONS AND EXCEPTIONS §^ 522 lar statement is erroneous/* and an objection to a long excerpt from the charge that it is not a clear statement of the law and is confusing, and does not state the principles of law applicable to the case, so that the jury can understand them, is insufficient where some of the parts of the excerpt are not subject to any of such objections.^* So a general exception to the whole of a portion of a charge, a part of which is not open to objection on any view of the case, cannot be sustained on the theory that the balance of the charge is not within the issues,*" and an objection that an in- struction is not warranted by the evidence is not well taken, where it is pertinent to one phase of the evidence.*^ Where, however, although only one part of an instruction is improper, the two parts are so inseparable that the whole charge is rendered bad by the error in the one part, a general exception to such instruction will be sufficient,*" and the above rule is not applicable, where the instruction to which a general exception is taken authorizes the wrong application of that portion of it which is correct.** So, where an instruction, covering one general sub- ject, if considered as a whole, fails to correctly reflect the law "applicable to the case," an exception to such an instruction is suf- ficient, although there may be phrases, or even sentences, in the instruction that are unobjectionable,** and it has been held that, where the instructions are not numbered nor divided into distinct propositions, an exception to any part of them which is erroneous may be reserved by excepting to all collectively.** L Ed 1021, 20 Ann. Gas. J138, affirm- Stokes v. State, 44 So. 759, 54 Fla. ing iudgment (C. C. Wash.) United 109. Slites Y. Holt, 168 P. 141. ^ " Philip Schneider Brewing Co. v. ^ ij 4. J. .„«*..«« American Ice-Mach. Co. (C. C. A. Ijistructions held not to contain ^ ^^ ^ ^gg^ 23 c. C. A. 89 ; Morse two distinct propositions •nnttin ^ (jiiman ig Wis. 373. mle. An instruction on a trial for ^, Reeves v. H. C. Allgood & Co., 67 murder, that murder in the first de- g ^ gg^ ^33 q^. 835. gree was the unlawful killing of a 20 Metropolitan Redwood Lumber, human being when perpetrated from q^ ^ D^vis (0. C. A. Gal.) 205 F. 4S6, a premeditated design to eftect the j^S G. C. A. 554. death of the person killed, or any hu- 21 James v. Hamil, 78 S. E. 721, 140 man being, or when committed in the (ja. 168. perpetration of or in the attempt to 22 Fones v. Phillips, 39 Ark. 17, 43 perpetrate any arson or certain other Am. Eep. 264 ; Eddy v. Howard, 23 rrimes named; that premeditation Iowa, 175; Haun v. Eio Grande W. meant intent before the act; that pre- Ry. Go., 62 P. 908, 22 Utah, 346 meditated design to kill meant intent 28 Melcher v. Beeler, 110 P. 181, 48 to km- that premeditation need not Colo. 238, 189 Am. St. Rep. 273. ^ for any particular length of time, =^ Everts v. Worrell (Utah) 197 P. SeTrforVaSy^rtt 1^1! ''"Hersleb v. Moss, 28 Ind. 354. § 523 INSTRUCTIONS TO JUEIBS 960 § 523. Exception to each and every part of a charge The rule in most jurisdictions is that an exception taken indis- criminately to every paragraph of a charge, or to each clause sep- arately, will be treated the same as if one general exception had been taken to the whole charge, and is not effective unless the whole charge is bad,** and an exception to every instruction ad- verse to the exceptant and every part thereof, and the instructions as a whole, is insufficient to bring to the attention of the court any separate paragraph, and will not avail unless the whole charge is erroneous.*' In some jurisdictions, however, an exception to "each and ev- ery" charge of the court is held to entitle the party so excepting to present his objections to any one of the charges.** In one ju- risdiction the appellate court will not refuse to review such an ex- ception at the close of a written charge duly paragraphed and num- bered, if allowed in that form by the trial court,** although in this jurisdiction, as elsewhere, it is considered the better practice to minutely specify objections at the trial, and where the instruc- tions are oral and in the nature of a. general charge, such an excep- tion is not sufficient.** § 524. Exception directed against several instructions designated by certain numbers In some jurisdictions an exception to the giving of instructions designated by certain numbers "and to the giving of each of said instructions" is held to be a separate and specific exception to 26 Ala. Savage v. Milum, 54 So. v. Chicago & N. W. Ry. Co., 43 Wis. 180, 170 Ala. 115. 305. Mich. Goodsell v. Seeley, 46 Mich. In Oklahoma, in an early case the 623, 10 N. W. 44, 41 Am. Rep. 183; court vigorously condemned such an People V. Bristol, 23 Mich. 118. exception holding it to amount merely Okl. Duroderigo T. Culwell, 152 to a general exception, although feel- P. 605, 52 Okl. 6 ; Remund v. McCool, ing itself bound under the statute to 150 P. 1055, 50 Okl. 69 ; Bisiminger v. consider it. Buck v. Territory, 98 P. Beman, 124 P. 289, 32 Okl. 818. 1017, 1 Okl. Cr. 517. See Dunham v. Utah. Scoville V. Salt Lake City, Holloway, 3 Okl. 244, 41 P. 140. 11 Utah, 60, 39 P. 481. 2' Isnard v. Edgar Zinc Co., 106 P. Wis. Nisbet v. Gill, 38 Wis. 657. 1003, 81 Kan. 765. . Illustrations of esceptions in- 2 8 Ellis v. Leonard, 78 K. W. 246, sufficient within mle. Where an 107 Iowa, 487; Eikenberry v. Ed- instruction stated the rule of damages wards, 67 Iowa, 14, 24 N. W. 570; in other respects correctly, and added' Hawes v. Burlington, C. R. & N. Ry. that Interest might be allowed from Co., 64 Iowa, 315, 20 N. W. 717. the date of the injury, an exception 2 9Ritchey v. People, 47 P. 272, 23 "to said instruction, and to each and Colo. 314, Id., 47 P. 384, 23 Colo. 314. every part thereof," is not sufl3ciently See Beals v. Cone, 62 P. 948, 27 Colo, specific to raise the question whether 473, 83 Am. St. Rep. 92. the time for which interest might be "> Miller v. People, 46 P. Ill, 23 allowed was correctly stated. Dean Colo. 95. 961 OBJECTIONS AND EXCEPTIONS (525 each of said paragraphs of the charge and to be sufficient,*^ and in one jurisdiction an exception to the giving of instructions request- ed by a party and designated by certain numbers is held to be a specific exception to each instruction.*^ § 525. Exceptions to refusals to instruct The general rule that exceptions to the giving of instructions should be specific applies also to the refusal of requests to charge,** 31 Phoenix Ins. Co. v. Moog, 81 Ala. 335, 1 So. 108 ; Geary v. Parker, 47 S. W. 238, 53 S. W. 567, 65 Ark. 521; Eice V. WUliams, 71 P. 433, 18 Colo. App. 330 ; City of Omaha v. Richards, 68 N. W. 528, 49 Neb. 244, overruling Brooks V. Dutcher, 36 N. W. 128, 22 Neb. 644, and Walker v. Turner, 42 N. W. 918, 27 Neb. 103. Exception to requests. In Min- nesota, it has been held, disapproving, so far as inconsistent, the cases of StefCenson v. Chicago, M. & St. P. R. Co., 53 N. W. 800, 51 Minn. 531, and Rosquist V. /D. M. Gilmore Furniture Co., 52 N. W. 385, 50 Minn. 192, that where several separate and distinct "requests," each containing but a sin- gle proposition of law, are given, an exception "to each and all of them" is sufficient. Van Doren v. Wright, 65 Minn. 80, 67 N. W. 668, 68 N. W. 22. 3 2 Coley V. City of Statesville, 28 S. E. 482, 121 N. C. 301 ; Witsell v. West Asheville & S. S. Ry. Co., 27 S. E. 125, 120 N. C. 557. 3 8 XT. S. Chateaugay Ore & Iron Co. V. Blake, 144 U. S. 476, 12 S. Ct. 731, 36 L. Ed. 510; Burton v. West Jersey Ferry Co., 114 U. S. 474, 5 S. Ct. 960, 29 L. Ed. 215; Connecticut Mut. Life Ins. Co. v. Union Trust Co. of New York, 112 U. S. 250, 5 S. Ct. 119, 28 L. Ed. 708; (C. C. A. 111.) Cleveland, C, C. & St. L. Ry. Co. v. Zider, 61 Fed. 908, 10 C. C. A. 151; (C. C. A. Va.) Anderson v. Avis, 62 Fed. 227, 10 C. 0. A. 347. 111. Razor v. Razor, 142 111. 375, 31 N. E. 678. Ind. Baker v. McGinniss, 22 Ind. 257; State v. Bartlett, 9 Ind. 569; Jolly V. Terra Haute Drawbridge Co., 9 Ind. 417. Kan. Fleming v. L. D. Lathain & Co., 48 Kan. 773, 30 P. 166; Bailey v. Dodge, 28 Kan. 72. INST.TO JUEIES— 61 Mass. Murphy v. McNulty, 145 Mass. 464, 14 N. B. 532. Neb. City of Omaha v. McGavock, 47 Neb. 313, 66 N. W. 415; Hedrick v. Strauss, 42 Neb. 485, 60 N. W. 928. N. Y. People V. Katz, 103 N. E." 305, 209 N. Y. 811, Ann. Cas. 1915A, 501, affirming judgment 139 N. Y. S. 137, 154 App. Div. 44 ; Tousey v. Rob- erts, 114 N. Y. 312, 21 N. B. 399, 11 Am. St. Rep. 655 ; Rehberg v. City of New York, 99 N. Y. 652, 2 N. B. 11; Yale V. Ourtiss, 71 Hun, 486, 24 N. Y. S. 981. S. C. Jones V. Swearingen, 42 S. O. 58, 19 S. E. 947. Vt. Goodwin v. Perkins, 39 Vt. 598. Illustrations of esoeptions to refusals to charge held too gener- al. An exception to refusals to charge, which states that the "court refused to give any of the foregoing requests and the counsel for defend- ant in due time and form excepted to each refusal." Pound v. Port Huron & S. W. Ry. Co., 19 N. W. 570, 54 Mich. 13. The objection to refusal of a request to instruct the jury to re- turn a verdict for defendant, because plaintiff's evidence is insufficient to sustain a verdict, is too general, if it does not point out wherein the evi- dence is insufficient. Cleburne St. Ry. Co. V. Barnes (Tex. Civ. App.) 168 S. W. 991. Wbere defendant made four requests to charge, three of which the court modified and gave, and the fourth refused, to which de- fendant excepted in these words: "Defendant now excepts to each and every part of the charge, and also to the refusal of the court to giye the requests of defendant, as requested," it was held that the exception failed to point out which of the charges giv- en was claimed to be erroneous, and §525 INSTKUCTIONS TO JUKIES 962 and the court may properly disallow an exception to its refusal to give a large number of instructions as requested, and require every error in omitting to cover requested instructions to be spe- cifically pointed out.** Where, of a number of requests to charge, some are given and others are refused or modified, a general excep- tion to the refusal of instructions asked, not calling the attention of the court to the particular omission or modification complained of,*® or an exception to the refusals to charge as requested in so far as the court did refuse, and to each of the refusals to charge,*® was therefore bad. ShuU v. Raymond, 23 Minn. 66. Where, in the charge to 'the jury, the court gave almost verba- tim four out of plaintifE's nine requests to charge, and all of defendant's sev- en, and the exception taken was that plaintiffl "excepts to the refusal of the court to give plaintifE's fourth, sixth, seventh, eighth, and ninth requests, and to the modification of the first and second of plaintifC's requests as given. Plaintiff also excepts to the giv- ing of each of defendant's requests," the exception was held not sufficiently specific. Eosquist v. D. M. Gilmore Furniture Co., 50 Minn. 192, 52 N. W. 385. An exception at the close of the charge to the court's "refusal to charge in the language stated," and to his "modification of the respective re- quests as stated," is too general to be considered. Heath v. Glens Falls, S. H. & Ft. E. St. R. Co., 90 Hun, 560, 36 N. ,Y.,.S. 22. A mere general ex- ception to the failure of the court to give nine separate propositions, re- quested before the argument and charge, and not afterwards called to the attention of the court, is too vague to require any action by an appellate court. Pittsburgh & W. Ry. Co. v. Thompson (C. C. A. Ohio) 82 F. 720, 27 0. 0. A. 333. Exceptions Ifield sufficiently' spe- cific. Where a bill of exceptions re- cited that the defendants asked the trial court to give "each" of several charges set out, but that the court re- fused to give "either of said charges," and that to such refusal the defend- ants excepted, it was held that the exception brought up for revision each of the charges named. Lehman V. Bibb, 55 Ala. 411. Where, follow- ing certain instructions given by the court to the jury contained in a bill of exceptions are other instructions signed by counsel immediately preced- ed by a statement that they were ask- ed by defendant and refused by the court, and containing after the in- structions refused the statement, "to the giving of each of which instruc- tions and the refusal to give those asked defendant at the time objected and excepted," such exception is prop- erly taken, and is neither too general nor indefinite. Robb v. State, 52 Ind. 218. Where five distinct requests to charge, separately numbered, were submitted to the court, who ruled up- on — denying or modifying — each sep- arately, and counsel "excepted to said refusals and modiflcatidns of said in- structions, as given," it was held that such exception was suflBciently spe- cific, and would be understood as ap-' plying to the ruling on each proposi- tion. Schurmeier v. Johnson, 10 Minn. 319 (Gil. 250). 84 Herrick v. Waitt, 113 N. E. 205, 224 Mass. 415; Randall v. Peerless Motor Car Co., 99 N. E. 221, 212 Mass. 352; Luce v. Hassam, 58 A. 725, 76 Vt. 450. So Mich. Edgell V. Francis, 86 Mich. 232, 48 N. W. 1095. Minn. Delude v. St. Paul City Ry. Go., 55 MSnn. 63, 56 N. W. 461 ; Car- roll V. Willistbn, 44 Minn. 287, 46 N. W. 352. N. Y. Newall v. Bartlett, 114 N. T. 399, 21 N. E. 990; Roe v. City of New York, 66 N. Y. Super. Ct. (24 Jones & S.) 298, 4 N. Y. S. 447 ; Smedls V. Brooklyn & R. B. R. Co., 88 N. Y. 13. 3 6 Read V. Nicholas, 118 N. Y. 221, 23 N. E. 468, 7 L. R. A. 130. ^^^ OBJECTIONS AND EXCEPTIONS § 525 is unavailing to present any question for review, and a general ex- ception to a refusal to give a number of requests, except so far as they are included in the main charge to the jury,*'' or an excep- tion to such parts of the charge of the court as are variant from the requests of the exceptant,** the variances not being pointed out, is too general. So, where a party requests numerous instructions, and the court gives a general charge purporting to cover the in- tructions asked, an objection to the refusal of the court to give the instructions, on the ground that they were proper and that they were not covered by the charge, is too general.** So aii exception to the modification by the court in its general charge of a particu- lar proposition submitted by one of the parties, without stating specifically the modification to which objection is made, is too in- definite,** and an Exception taken to the ruling of the court in re- fusing to give an instruction asked will not embrace a ruling modi- fying the instruction,*^ and a general exception to the refusal to charge as requested, and "severally to each refusal to charge and to the charge," presents nothing for review.*^ Where the court refuses to give a certain number of instruc- tions, an exception to the failure to give a certain less number, not specifying which requests of the larger number are objected to, is not good,** and a general exception to the refusal of a number of requests to charge presents no question on appeal, if any one of such requests is improper.** An exception, however, to the refusal 3 7 Walker v. Windsor Nat. Bank *3 Columbia Mill Co. v. National (C. C. A. N. H.) 56 F. 76, 5 C. C. A. Bank of Commerce, 52 Minn. 224, 53 421; Lane v. Minnesota State Agri- N. W. 1061. cultural Soc, 69 N. W. 463, 67 Minn. ** U. S. Union Pac. Ry. Co. v. Cal- 65 ; Ayrault v. Pacific Bank, 47 N. Y. laghan, 161 U. S. 91, 16 S. Ct. 493, 40 570 7 Am Rep. 489; Welcome v. L. Ed. 628; Thiede v. Territory of Mitchell 81 Wis. 566, 51 N. W. 1080, Utah, 159 U. S. 510, 16 S. Ct. 62, 40 29 Am St. Rep. 913. L- Ed. 237 ; Newport News & M. V. S8 Beaver v. Taylor, 93 U. S. 46, 23 Co. v. Pace, 158 U. S. 36, 15 S. Ct. 743, L Ed 797: Chamberlain v. Pratt, 33 39 L. Eji. 887; Bogk v. Gas^ert, 149 jj' Y 47 U. S. 17, 13 S. Ct. 738, 37 L. Ed. 631; 3 9 "Bovd V Oddous, 97 Cal. 510, 32 Union Ins. Co. v. Smith, 124 U. S. 405, p gg9 •^ ■ 8 S. Ct. 534, 31 L. Ed. 497; Moulor v. 'io Connecticut Mut. Life Ins. Co. v. American Life Ins. Co., Ill U.. S. Union Trust Co., 112 U. S. 250, 5 S. 335, 4 S. Ct. 466, 28 L. Ed. 447; Beav- Ct 119 28 L Ed. 708; Washington er v. Taylor, 93 U. S. 46, 23 L. Ed. Rv & Electric Co v. Washington Ter- 797 ; (C. C. A. Colo.) Morgan v. Unit- mfnal Co! M App D. C. 470 ; Thomp- ed States, 169 F. 242, 94 C. C. A. 518 ; Mn V Security Trust & Life Ins. Co., (C. C. A. 111.) Illinois Car & Equip- 4?V'b 464 63 S C 290. ment Co. v. Linstroth Wagon Co,, 112 if Chicago CityRy. Co. v. Mumford, F. 737, 50 C. C. A. 504; Linehan Ry. 97 111 560- State V. Robinson, 12 Transfer Co. v. Mtorris, 87 P. 127, 30 Wash 491 41 P 884 C. C. A. 575; (C. C. A. Ind. T.) Wa- "^ffliodi'v. Alger, 53 N. Y. Super. , ples-Platte^ Co v. Turner, 83 F 64 Ct. (21 Jones & S.) 107. 27 C. O. A. 4d» , (o. u. a. iviicn.; § 525 INSTRUCTIONS TO JTJRIES 964 to give a number of instructions having certain designated num- bersj has been held to be sufficient,*^ and it has been held that the Bean-Chamberlain Mfg. Co. v. Stand- ard Spoke & Nipple Co., 131 F. 215, 65 C. C. A. 201; (C. C. A. N. Y.) Erie R. Co. V. Littell, 128 F. 546, 63 C. C. A. 44; (C. C. A. Or.) Otis Elevator Co. v. Luck, 202 F. 452, 120 O. 0. A. 558 ; (C. C. A. S. D.) New England Furni- ture & Carpet Co. v. Catholicon Co., 79 F. 294, 24 C. C. A. 595. Ala. Tombigbee Valley R. Co. v. Morris, 65 So. 207, 10 Ala. App. 322; Johnson v. State, 37 So. 456, 141 Ala. 37 ; Pearson v. Adams, 29 So. 977, 129 Ala. 157 ; Milliken v. Maund, 110 Ala. 332, 20 So. 310 ; Alston v. State, 109 Ala. 51, 20 So. 81 ; Nelson v. Warren, 93 Ala. 408, 8 So. 413; Goley v. State, 87 Ala. 57, 6 So. 287; Adams v. State, 87 Ala. 89, 6 So. 270 ; Black v. Pratt Coal & Coke Co., 85 Ala. 504, 5 So. 89 ; BedweU v. Bedwell, 77 Ala. 587 ; Stovall V. Fowler, 72 Ala. 77; Wil- liams V. State, 68 Ala. 551 ; Kilpatrick V. Pickens County, 66 Ala. 422 ; M'c- Gehee v. State, 52 Ala. 224. ria. Lee V. State, 67 So. 883, 69 Fla. 255, Ann. Cas. 1917D, 236; Tel- fair V. State, 50 So. 573, 58 Fla. 110; Bwert V. State, 37 So. 334, 48 Fla. 36 ; Griffin v. State, 37 So. 209, 48 Fla. 42 ; King v. State, 31 So. 254, 43 Fla. 211. Ind. Cotner v. State, 89 N. E. 847, 173 Ind. 168; Rastetter v. Reynolds, 66 N. E. 612, 160 Ind. 133 ; Kluse v. Sparks, 10 Ind. App. 444, 37 N. E. 1047 ; Garrigus v. Burnett, 9 Ihd. 528. Ind. T. Hall v. Needles, 38 S. W. 671, 1 Ind. T. 146. Kan. Murray v. Board of Com'rs of Woodson County, 48 P. 554, 58 Kan. 1 ; Hayes v. Farwell, 45 P. 910, 4 Kan. App. 387; Sumner v. Blair, 9 Kan. 521. Minn. McNamara v. Pengilly, 64 Minn. 543, ef7 N. W. 661; Webb v. Fisher, 57 Minn. 441, 59 N. W. 537; Ferson v. Wilcox, 19 Minn. 449 (Gil. 388). Nelj. City of South Omaha v. Pow'= ell, 70 N. W. 391, 50 Neb. 798. N. J. Gardner v. State, 55 N. J. Law (26 Vroom) 17, 26 A. 30. N. Y. Barker v. Cunard S. S. Co., 51 N. E. 1089, 157 N. T. 693, affirming judgment 36 N. X. S. 256, 91 Hun, 495 ; Patton v. Royal Baking Powder Co., 114 N. T. 1, 20 N. E. 621 ; Bar- ker V. Cunard S. S. Co., 91 Hun, 495, 36 N. Y. S. 256; Willetts v. Sun Mut. Ins. Co., 45 N. Y. 45, 6 Am. Rep. 31 ; Magee v. Badger, 34 N. Y. 247, 90 Am. Dec. 691; affirming 30 Barb. 246; Myers v. Dixon, 45 How. Prac. 48, 35 N. Y. Super. Ct. (3 Jones & S.) 390. Ohio. Hills V. Ludwig, 46 Ohio St. 373, 24 N. E. 596 ; Shaffer v. Cincin- nati, H. & D. R. R. Co., 14 Ohio Cir. Ct. R. 488, 8 O. C. D. 6©; Voelckel V. Banner Brewing Co., 9 Ohio Cir. Ct. R. 318. • . Or. Salomon v. Cress, 22 Or. 177, 29 P. 439; Murray v. Murray, 6 Or. 17. Utah. .Marks v. Tomkins, 7 Utah, 421, 27 P. 6. Vt. White V. Lumiere North Amerr ican Co., 64 A. 1121, 79 Vt. 206, 6 L. R. A. (N. S.) 807. W. Va. Ocheltree v. McOlung, 7 W. Va. 232. Wis. Mwell V. Bosshard, 138 N. W. 46, 151 Wis. 46 ; Haueter v. Mar- ty, 137 N. W. 761, 150 Wis. 490 ; Ra- cine basket Mfg. Co. v. Konst, 51 Wis. 156, 7 N. W. 254 ; Harrison v. Crock- er, 39 Wis. 68; Hamlin. v. Haight, 32 Wis. 237. Illustrations of insufficient ex- ceptions nritliin rule. Where the bill of exceptions recites that the de- fendant asked the court to give "the following charges," which the court refused to do, and that the defend- ant separately and severally excepted to the refusal of the court to give each of said charges, and then' sets out a number of charges, it will be assumed that the charges were re- quested as a whole, and hence refusal to give them is not error, if any one of them is erroneous. I'own of Ver- non v. Edgeworth, 42 So. 749, 148 Ala. 490. 45 Bell V. Washington Cedar Shin- gle Co., 8 Wash. 27, 35 P. 405. Contra, Holman v. Herscher (Tex.) 16 S. W. 984. 965 OBJECTIONS AND EXCEPTIONS § 526 rulings of the court on prayers for instructions presented at the same time and forming a series of consecutive propositions is a single act, and that one exception will embrace the whole.*« In some jurisdictions it is not necessary to take an exception to the reason given by the court for refusing an instruction.*' An exception to the refusal to give a requested instruction is sufficient to raise the question of the propriety of that portion of the gen- eral charge which affirms the contrary of such request.** Where instructions are asked as an entirety, but the refusals to give them are several, and the exceptions are also several, consideration there- of will not be refused on appeal because of the absence of an ex- ception to the refusal to give them as an entirety.** § 526. Limitations of rule A general exception to the whole charge will raise the question whether as an entirety it is not manifestly wrong and injurious to the exceptant,^ and such an exception may be sufficient, where the charge consists of a single proposition, or where the whole scope of the charge asserts and explains a single question. or prin- ciple," or wfiere the whole charge proceeds on a false theory and there is no reason to suppose that the error is inadvertent.^^ Thus an exception "to the court's measure of damages" as stated in the charge is sufficiently specific, where the error, if any, is funda- mental in giving a rule of damages inapplicable to the case, and which affects the entire charge relating to that subject.^* A^ stat- ed in one jurisdiction, the rule is that to challenge the correct- ness of a charge because of its inapplicability to the facts, or (be- cause it does not state the law with sufficient fullness, the respects in which it is deficient must be specified,®* but that in order to challenge the correctness of a legal proposition involved in a charge it is sufficient to point out the particular part objected to, and to say that it is not a legal charge.®* A general objection to an in- 46 McCosker v. Banks, 35 A. 935, 84 ei Nickum v. Gaston, 24 Or. 3S0, 33 Mfl 292. P- 671, 35 P. 31. See Robinson v. New *'7 Maxwell v. Massachusetts Title York & E. K. Co., 27 Barb. (N. T.) Ins. Co., 92 N. E. 42, 206 Mass. 197 ; 512. Chessman v. Hale, 79 P. 254, 31 Mont. sz Snyder v. Viola Mining & Smelt- 577, 68 U K. A. 410, 3 Ann. Oas. 1038. ing Co., 3 Idaho (Hash.) 28, 26 P. 127. 48 Connecticut Mut. Life Ins. Co. ssHindman v. First Nat. Bank (C. V. niUmon, 23 S. Ct. 294, 188 U. b. q ^ g;y % 112 F. 931, 50 C. C. A. 623, 208, 47 U Ed. 446, reversing, judgment ^,j ^ ^ ^ 108 . Denver & R. G. R. (O. C. A. Kan.) 107 F. 834, 46 C. C. ^ ^ Young, 70 P. 688, 30 Colo. 349. ■*■• ^^^' , • n^ T!'h^,i„>y 144 ' "* State V. Weston, 31 So. 383, 107 40 Pennsylvania Co. v. Ebaugh, 144 j^j^ 45 ^"^0 lel'castner^;. The Dr. Franklin, ="= State v. Weston, 31 So. 383, 107 1 Minn. 73 (Gil. 51). La. 45. §526 INSTRUCTIONS TO JURIES 966 sStruction is sufficient to raise the point that it invades the prov- ince of the jury,^ and it has been held that a more liberal rule with respect to giving effect to a general exception will be applied in the case of an oral charge than where the instructions are writ- ten.^'' The rule that exceptions to instructions should be precise .and pointed, so as not to require the court to search for errors through long passages does not apply, when it is iiecessary or use- ful to cite an entire passage in order to form a just view of the error complained of,®* and an exception to a court's charge which is merely a quotation therefrom is not fatally defective for that reason, if it sets forth a distinct proposition and is definite and specific as to the error therein.®* Exceptions to a charge are sufficiently explicit if they fairly di- rect the attention of the court to that part of the charge consid- ered objectionable.^' Where instructions in writing are separately paragraphed and numbered, an exception to the giving of one of such instructions designated by its number is sufficient.®^ In some s« Union Seed & Fertilizer Co. v. St. Louis, I. M. & S. Ry. Co., 181 S. W. 898, 121 Ark. 585. oTLichty v. Tannatt, 11 Wash. 37, 39 P. 260. 5 8 Hicks V. United States, 150 U. S. 442, 14 S. Ct. 144, 87 L. Ed. 1137. 6 9 Norris v. Clinkscales, 37 S. E. 821, 59%. C. 232. 80 Rogers v. Mahoney, 62 Cal. 611. Xizceptions held sufficient. An exception "to so much of the charge as relates to smooth, level, and slip- pery ice not being a defect under the conditions named" sufficiently indi- cates the statement of legal proposi- tions to which objection Is made. Adams v. Town of Chicopee, 147 Mass. 440, 18 N. E. 231. Illustrations of insufficient ex- ceptions. An exception to the charge "commencing with the words, * * * and from there to the end," is bad, where such portion of the charge contains distinct propositions. Calkins v. Seabury-Oalkins Oonsol. Min. Co., 5 S. D. 299, 58 N. W. 797. On trial for malicious trespass, where the Court in its charge has defined "malicious trespass" as the entering on another's property with a mali- cious intent to do injury, an excep- tion to "that part of the charge de- fining trespass as the entering on land of another with malicious in- tent" is not sufficiently definite and specific to entitle defendant to a re- view of the charge. People v. Upton, 55 Hun, 612, 9 N. Y. S. 684. An ex- ception to the charges as given on the request of plaintiff, and particu- larly his requests numbered 1, 2, 3, 5, 6, 7, and "to the refusal to charge as requested by the defendant and each and every one of the same, and particularly his requests numbered 2, ' 3, 5, etc.," where several of the plain- tiff's requests referred to were in fact modified essentially, if not even favorable to defendant, and one at least of defendant's requests refer- red to was in fact given in substance in his general charge, will not be con- sidered. Such an exception, in point- ing at everything, specifies nothing, and is about equivalent to a gen- eral objection to the judge's charging at all. Danielson v. Oyckman, 26 Mich. 169. An exception to the charge "so far as it is inconsistent with the rulings requested" was too indefinite. Letchworth v. Boston & M. R. R., 108 N. E. 500, 220 Mass. 560. 61 Big Hatchet Consol. Min. Co. v. Colvin, 75 P. 605, 19 Colo. App. 405; 967 OBJECTIONS AND EXCEPTIONS §527 junsdichons a party excepting to a particular instruction need not state the reasons why it is bad,8« and in some jurisdictions a gen- eral exception, although insufficient as to instructions given by the court of its own motion, is sufficient as to instructions given at the request of the other party.« That an exception is ambiguous as to which portion of the charge it refers furnishes no ground for reversal.** F. EFFECT OF Failure to Object or Except § 527. General rule The general rule is that errors in instructions, other than those of a fundamental character,*^ are waived by the failure to object to them at the trial of the cause ;«« such instructions becoming. ilcClellan v. Hein, 77 N. W. 120, 56 Neb. 600. Oral charge. Where an instruc- tion is given orally, and the division thereof . Into paragraphs in the ab- stract was subsequently and arbitrari- ly made by counsel, a general objec- tion to a paragraph of the instruction, referring to it as "Instruction No. 7," is insufBcient. Edwards v. People, 59 P. 56, 26 Colo. 539. 62 Denver & R. G. R. Co. v. Young, 70 P. 688, 30 Colo. 349 ; Bradbury v. Alden, 57 P. 490, 13 Colo. App. 208; Farnsworth v. Union Pac. Coal Co., 89 P. 74, 32 Utah, 112; Sextori v. School Dist. No. 34 of Spokane Coun- ty, 9 Wash. 5, 36 P. 1052. See, also, ante, §. 519, note 76. In. Iowa, the grounds for excep- tions to instructions need not be stat- ed, where the exceptions are taken at the time the instructions are given. Johnson v. Chicago, R. I. & P. R. Co., 51 Iowa, 25, 50 N. W. 543 ; Williams v. Barrett, 52 Iowa, 687, 3 N. W. 690 ; Hawes v. Burlington, C. R. & N. Ry. Co., 64 Iowa, 315, 20 N. W. 717. 63 Waldteufel v. Pacific Vineyard Co., 92 P. 747, CaJ. App. 624 ; Miller V. Fireman's Fund Ins. Co. of San Francisco, 92 P. 332, 6 Cal. App. 395 ; Williams v. Oasebeer, 58 P. 380, 126 Cal. 77; Robinson v. Western Pac. R. Co., 48 Cal. 409. 64 McGinley v. United States Life Ins. Co., 77 N. T. 495; Schmalz v. Hauseman, 7 N. T. Civ. Proc. R. 414. 6 5 Jeffries' Ex'r v. Ferree, 193 S. W. 646, 175 Ky. 18 ; Gowdey v. Roh- bins, 3 App. Div. 353, 38 N. Y. S. 280; Cooper & Jones v. Hall (Tex. Civ. App.) 168 S. W. 465; Beazley v. Denson, 40 Tex. 416 ; Stude v. Saun- ders, 2 Posey, Unrep. Cas. (Tex.) 122. 66 U. S. Reagan v. Aiken, 138 U. S. 109, 11 Sup. Ct. 283, 34 L. Ed. 892; (C. C. A. Mich.) Standard Oil Co. V. Sutherland, 247 F. 309, 159 C. C. A. 403; (C. C. N. Y.) Emerson V. Hogg, Fed. Cas. No. 4,440, 2 Blatchf. 1, 1 Fish. Pat. Rep. 77; (C. C. A. Pa.) Barnes & Tucker Coal Co. T. Vozar, 227 F. 25, 141 C. C. A. 579. Ark. Evins v. St. Louis & S. F. R. Co., 147 S. W. 452, 104 Ark. 79; St. Louis, I. M. & S. Ry. Co. v. Lamb, 128 S. W. 1030, 95 Ark. 209. Cal. Los Angeles County v. Reyes, 32 P. 233, 3 Cal. Unrep., Gas. 77 ; Wil- kinson V. Parrott, 32 Cal. 102. Colo. Brewster v. Crossland, 2 Colo. App. 446, 31 P.- 236. Ind. Parker v. Clapton, 51 Ind. 126. Iowa. Joyner v. Interurban Ry. Co., 154 N. W. 936, 172 Iowa, 727; Bldridge v. Stewart, 97 Iowa, 689, 66 N. W. 891 ; Hall v. Town of Manson, 90 Iowa, 585, 58 N. W. 881; Fritz v. Kansas City, C. B. & St. J. Ry. Co., ©1 Iowa, 323, 16 N. W. 144 ; Kirk v. Woodbury County, 55 Iowa, 190, 7 N. W. 498; Talty v. Lusk, 4 Iowa, 469. Kan. Kansas Farmer*' Fire Ins. §527 INSTRUCTIONS TO JUEIES 9.68 in the absence of any objection or exception taken to them, and in the absence of any request for contrary instructions, the law of the case,*'" and in many cases the failure of a party to ask an in- Co. V. Hawley, 46 Kan. T46, 27 P. 176 ; State v. Probasco, 46 Kan. 310, 26 P. 749; City of Wyandotte v. Noble, 8 Kan. 444. Minn. Bork v. Keller Mfg. Co., 148 N. W. 113, 126 Minn. 203 ; Town of Wells V. Sullivan, 147 N. W. 244, 125 Minn. 353. Mo. Carlton v. Monroe, 115 S. W. 1057, 135 Mo. App. 172. Nebu HoUoway v. Schooley, 27 Neb. 553, 43 N. W. 346 ; Chicago, B. & Q. R. Co. V. Starner, 26 Neb. 630, 42 N. W. 706; Scbroeder v. Rinehard, 25 Neb. 75, 40 N. W. 593. N. Y. ScbafiC v. Miles (Com. PI.) 10 Misc. Rep. 395, 31 N. Y. S. 134. N. C. White v. Clark, 82 N. C. 6. Okl. Carter v. Missouri Mining & Lumber Co., 41 P. 356, 6 Okl. 11. Op. Hurst v. Burnside, 12 Or. 520, 8 P. 888. Wash. State V. Bringgold, 82 P. 132, 40 Wash. 12, 5 Ann. Gas. 71©; Johnson v. Tacoma Cedar Lumber Co., 3 Wash. 722, 29 P. 451. Wis. Thomas v. Paul, 87 Wis. 607, 58 N. W. 1031; Firmeis v. State, 61 Wis. 140, 20 N. W. 663; Corcoran V. Harran, 55 Wis. 120, 12 N. W. 468. Illustrations of waivers by rea- son of failure to object or except. Where, at the close of the charge, plaintiff's counsel only requested a modification of the Instructions on the burden of proof, and on this being al- lowed defendant's counsel asked if he was through, whereupon plaintiff's counsel said "I have nothing more to say," he thereby waived any objection to an instruction on the degree of care required of defendant. Oucciar- re V. New York Cent. & H. R. R. Co. (C. O. A. 111.) 163 F. 38, 90 C. C. A. 220. Where, on the trial in an ac- tion by a shipper against a carrier for the burning of the goods in trans- it, both parties proceeded on the theory that if the fire originated from the act of the shipper's agent in han- dling a lantern such act was negli- gence, and no objection was made to the use of the word "negligence" in the instructions, given at plaintiff's request, that defendant was liable if it had not proved the loss was by rea- son of the alleged neglect of the plain- tiff, and that it had the burden of proving its defense that the fire was caused by the negligence of plaintiff's agent, objection on that account was waived. St. Louis, I. M. & S. R. Co. V. Pape, 140 S. W. 265, 100 Ark. 269. If the charge states a certain con- dition of affairs as being contended for by a party, when there is no evi- dence to support the contention, it is the duty of counsel to call the court's attention thereto. Jeffress v. Nor- folk-Southern R. Co., 73 S. E. 1013, 158 N. C. 215. In an action against connecting carriers for injury to cat- tle the failure of defendants to ex- cept to the refusal to give a request to apportion the damages was a waiv- er of an objection to the general charge on the same poittt. Quanah, A. & P. Ry. Co. V. Galloway (Tex. Civ. App.) 165 S. W. 546. A party who presents requests for rulings, saying that he proposes to except if they are not giveuj and then agrees that the judge may charge the jury, reserving the right to except if the requests are not covered by the charge, waives the right to except if, after the charge is given, he makes no objection to the omission to cover the ' rulings requested. Boutelle v. Dean, 148 Mass. 89, 18 N. E. 681. When, during the argument of the last counsel for the defendant, the judge announced that he Intended to submit to the jury issues different from those originally agreed upon by counsel, and the new issues were examined and comment- ed on to the jury by defendant's coun- sel, and no exceptions were taken, any objection to such change must be considered to have been waived. Phifer v. Alexander, 97 N. 0. 335, 2 S. E. 630. 6 7 Iowa, Almon v. Chicago & N. W. Ry. Co., 144 N. W. 997, d.63 Iowa, 449. N. Y. Smith V. Appleton, 140 N. 969 OBJECTIONS AND EXCEPTIONS § 529 struction oh a particular subject, or to except to the refusal of the court to give such instruction, operates as a waiver of any objec- tion to the omission to give it.** '' § 528. Limitations of rule The mere failure to object to a general charge does not amount to an approval of it, so as to estop a party from requesting instruc- tions and excepting to their refusal,** and where the charge of the court is susceptible of a cqnstruction unfavorable to a party, hut it is so ambiguous as to mislead him into omitting to except there- to, supposing that no such construction was intended, his failure) to except will not operate against him on appeal.'" § 529. Specific applications of rule The above rule applies to the giving of contradictory instruc- tions,'^ to a misstatement of the contentions of cdunsel,'^ to misstatements of the evidence,'* to the giving of abstract instruc- tions,'* to a charge on the weight of the evidence,'® to the as- sumption of disputed facts,'* to the modification of an instruction or of a request to charge," or to the failure to indorse a charge asked as "given."'* The objection that the charge of the court was given orally, instead of in writing, will not be considered by the appellate court, where it was not made in the trial court." y. S. 565, 155 App. Div. 520; Grimm 75 Martin v. State, 83 S. W. 390, 47 V. Wandell, 140 N. T. S. 391 ; Tex. Cr. R. 29, affirmed 26 S. Ct. 338, Schwelnburg v. Altman, 130 N. T. S. 200 TJ. S. 316, 50 L. Ed. 497. 37, 145 App. Div. 377; Gillan v. 7 6 Ryan v. Conroy, 85 Hun, 544. 33 OXarry, 108 N. Y. S. 1024, 124 App. N. T. S. 330. Div. 498. 77 Torkelson v. Minneapolis & St. I/. S. D. Lallier v. Pacific Elevator r. Co., 134 N. W. 307, 117 Minn. 73; Co., 127 N. W. 558, 25 S. D. 572. Greene v. Duncan, 37 S. C. 239, 15 6 8 Marks v. Jacobs, 76 Ind. 216: g. e. 956; State v. Huffman, 73 S. Davis V. Keen, 55 S. E. 359, 142 N. C. e. 292, 69 W. Va. 770. 496. ' 7 8Tyree v. Parham's Ex'r, 66 Ala. «9 Rabinowitz v. Smith Co. (Tex. 424. Civ. App.) 190 S. W. 197. 79 r. S. (O. C. A. Okl.) Williams 70 Gougar v. Morse (C. C. Mass.) ^ ^^^^^^ g^^^.^^^ ^gg ^ ^^^ gg (.. c. 66 F. 702. „ .„ A. 296, reversing 87 P. 647, 17. Okl. 28. oo?iT^r457:- 4i7%T "'''■ ^- ,,%- ^,r -■ ^^^^'^^' ^ "■ ^''• i«rl'^n'%"72^'''^''"'"' '' '■ ""■ '''' ^^- ^e«t V. Blackshear, 20 Fla. 162 N. U. d7z. .__ 78 Corcoran v. Lehigh & Franklin t°'- ^ ^ . ^. . ,. „ _,^ Ker ''?ce' Co.; Vn. Y^'Z^e^cl 430 ; Taber v. Hutson, 5 Ind. 322; 61 121; Krepps v. Carlisle, 157 Pa. 358, Am Dec. 96 27 A 741 33 Wkly. Notes Oas. 192. Neli. Gibson v. Sullivan, 18 Neb. Ttston^r V. Devilbiss, 70 Md. 144, 558, 26 N. W. 368. ^^ ^ „ „ 16 A 440 ■"'• ^" ■^°®® ''■ N^orthern Pac. R. § 529 INSTRUCTIONS TO JUEIES 970 Where instructions are presented to the court at the close of the evidence, and either party waives objections to any request of the opposite party, which the court thereupon gives, the party so waiving objection may not afterwards reserve an exception to the giving of such request without leave of court first obtaine4.**' By confining an objection to an instruction to a particular part there- of, or to a specific ground, a party waives all other objections,*^ and if an exception to a part of an instruction is stated to be upon a ground which cannot be sustained, ^ will not be extended, so as to serve as an exception upon a different ground, which might have been sustained.** Co., 2 N. D. 128, 49 N. W. 655, 33 Am. St. Rep. 756. S. D. Frye v. Ferguson, 6 S. D. 392, 61 N. W. 161. Wasli. Collins v. Terminal Trans- fer Co., 168 P. 174, 98 Wash. 597; Taylor v. Kidd, 129 P. 406, 72 Wash. 18. .Waiver of request for nritten instructions. Where a judge, in- stead of giving his instructions in writing, as requested, directed his oral instructions to be taken down by a stenographer, it was that failure to object to this mode of preserving the evidence of the charge was no waiver of the request. Shafer v. Stinson, 76 Ind. 374. so Oddie v. Mendenhall, 86 N. W. 881, 84 Minn. 58. 81 Stein V. Ashby, 30 Ala. 363; St. Louis, I. M. & S. Ky. Co. v. Richard- son, 112 S. W. 212, 87 Ark. 101; Price V. Burlington, C, R. & M. R. Co., 42 Iowa, 16;' Coddington v. Brooklyn Orosstown R. Co., 102 N. Y. 66, 5 N. E. 797 ; Edmunds v. Black, 15 Wash. 73, 45 P. 639. 82 Corcoran v. Harran, 55 Wis. 120, 12 N. W. 468. ^^*- CONSTRUCTION AND OPERATION § 530 CHAPTER XXXVIII CONSTRUCTION AND OPERATION A. Geneeal Rules or Constbtjction § 530. In general. 531. Construction with reference to pleadings and evidence. 532. Construction against party asking instruction. B. Construction and Effect of Chaege as a Whoeb 533. General rule. 534. Further discussion of rule — Cure of deficiencies and ohjectionable matters, not amounting to a positive misstatement of the law, by- other instructions. 535. Specific instances of defects, omissions, or objectionWe matters cured by other instructions. 536. Objection that instructions invade province of jury. C. Conflicting Instkuctions and Ctjee of Positive Ebroe in Insteuctions BY Giving Other Instructions 537. General rule. 538. Limitations of rule. 539. Cure of erroneous instruction by its withdrawal. A. Generai, Rules of Construction § 530. In general In interpreting an instruction which may be susceptible of njore than one construction, a hypercritical one should not be given to it/ but it must be given a reasonable construction,* and that mean- 1 Baltimore & P. R. Co. v. Mackey, If you have a reasonable doubt of 157 IT. S. 72, 15 S. Ct. 491. 39 li. Ed. defendant's guilt, you must acquit 624; Addlngton v. State, 74 So. 846, him," — the use of the words "of the 16 Ala. App. 10 ; Galpin v. Wilson, 40 offense charged" does not limit the re- lowa, 90 ; St Louis & S. F. R. Co. v. quirement of proof of guilt beyond a Ault, 58 So. 102, 101 Miss. 341. reasonable doubt to murder in the 2 Coffman v. State, 165 S. W. 939, first degree, but applies to all offens- 73 Tex. Cr. B. 295 ; Graham v. State, es of which defendant could be con- 163 S ' W 726 73 Tex. Cr. R. 28 ; victed under such indictment. State Christian V. State, 161 S. W. 101, 71 v. Smith, 65 S. W. 270, 164 Mo. 567. Tex Cr R. 566. An instruction that, if certain testi- Instrrictions ' on reasonable mony be true, defendant "is not guil- donbt. Where, on trial under an in- ty, and you should say so ; or, if you dictment for murder in the first de- have a reasonable doubt about it, you gree the court charged that: "De- should say so,"— is equivalent to a fend'ant is presumed to be innocent statement that, if the jury have a of the ofCense charged. Before "you reasonable doubt, they should acquit, can convict him, the state must over- People v. Pichette, 69 N. W. 739, 111 come that presumption by proving Mich. 461. An instruction that the him guilty beyond a reasonable doubt, jury cannot convict unless all the § 530 INSTETJCTIONS TO JURIES 972 ing should be adopted which the trial court and the jury, in the exercise of common sense, evidently intended it to have.* Words employed in an instruction must be taken in the ordinary and popular acceptation,* and in the sense in which they would be un- derstood by men of ordinary intelligence,^ and it will be presumed that an instruction was understood by the jury in the way it would naturally impress the mind.® Particular instructions, or particular sentences used in instruc- tions, must be considered, in determining their correctness, in con- nection with the other instructions or with the context.' The subsequent language of an instruction controls that previously used.* It is error in a criminal case to tell the jury that they are not bound by any particular instruction or part of an instruction giv- material averments of the informa- tion ar^ established beyond a reason- able doubt, does not by implication authorize a conviction without pre- sumption or proof ooC defendant's san- ity. Schwartz v. State, 91 N. W. 190, 65 Neb. 196. "Onglit mot to convict." An in- struction using the words, "ought not to convict," has the same meaning and effect as if the jury had been told "not to convict." State v. Nelson, 52 P. 868, 59 Kan. 776. EfEect of attempt to escape: An instruction in a homicide case that an attempt by defendant to escape is a circumstance which may be consid- ered, in connection with all other evi- dence, as bearing on his guilt, but is insufficient itseli to determine his guilt, is not subject to the objection that it is an Instruction that the slightest evidence in addition to the attempt to escape will authorize a conviction. State v. Haworth, 68 P. 155, 24 trtah, 398. Effect of instruction referring to certain enumerated facts. An Instruction, "If you find" certain enu- merated facts, "then you might find him guilty," does not limit the jury to the facts stated therein, but states facts which they must find in order to convict, and these facts, if found, are to be considered in connection with other facts which were either admitted or not disputed. Common- wealth v. Light, 45 A. 933, 195 Pa. 220. 3 Green v. Lewis, 13 111. 642 ; Or- ange Lumber Co. v. Ellis, 150 S. W. 582, 105 Tex. 363 ; Bank of Hunting- ton V. Napier, 41 W. Va. 481, 23 S. E. SOO. * Yazoo & ]Vr. V. R. Co. v. Williams,' 39 So. 489, 87 Miss. 344; Mitchell v. Zimmerman, 4 Tex. 75, 51 Am. Dec. 717. 5 Kingan & Co. v. Kiilg, 100 N. B. 1044, 179 Ind. 285; Harris v. Harris, 100 S. E. 125, 178 N. G. 7. Instruction that jury must be governed solely by the evidence. The charge of the court must be con- strued with reference to the evidence hefore the jury, and to the presump- tion that the jurors are possessed of ordinary intelligence, and will so un- derstand and apply it, where they are charged that they must be governed solely by the evidence in determining all questions submitted to them. Southern Pac. Co. v. Hall (O. 0. A. Cal.) 100 F. 760, 41 C. O. A. 50. 6 Massachusetts Mut. Life Ins. Co. V. Robinson, 98 111. 324. 7 City of Wyandotte v. White, 13 Kan. 191; Welch v. Ware, 32 Mich. 77 ; Kahn v. Minthom, 144 N. W. 859, 178 Mich. 312; Commonwealth v. Washington, 51 A. 759, 202 Pa. 148. 8 Preedman v. Metropolitan St. Ry. Co., 85 N. T. S. 986, 89 App. Div. 486. 973 CONSTRUCTION AND OPERATION § 531 en; the jury being absolutely bound by the instruction on reason- able doubt.' § 531. Construction with reference to pleadings and evidence In determining whether instructions are misleading or errone- ous, their language must be construed with reference to the plead- ings ^^ an-d the evidence," and in the light of the issues raised 9 Hobbs V. State, 132 P. 822, 9 Okl. Cr. 598. 10 Windham v. Hydrick, 72 So. 403, 197 Ala. 125 ; Smith v. Oarr, 16 Conn. 450 ; Winfleld v. Truitt, 70 So. 775, 71 Fla. 38; City of Chicago v. McDon- ough, 112 111. 85, 1 N. E. 337; M. E. Smith & Co. V. Kimble, 162 N. W. 162, 38 S. D. 511-. Effect of 'withdrawal of connt of declaration. Where one count of the declaration was withdrawn in the presence of the jury, and no evidence was introduced relating thereto, all references in the instructions to the pleadings are to be understood as re- ferring to the pleadings as they were at the time of the trial. Judgment, 101 111. App. 527, affirmed. Slack v. Harris, 65 N. E. 669, 200 111. 96. Request not referring to plead- ings. The correctness of a prayer, which does not refer to the pleadings, and is not affected by any other pray- er referring to the pleadings, must be determined with reference to the evi- dence without, consideration of the pleadings. Richardson v. Anderson, 72 A. 485, 109 Md. 641, 25 L. R. A. (N. S.) 393, 130 Am. St. Rep. 543. 11 U. S. (C. C. A. Alaska) Hall v. McKinnon, 193 F..572, 113 C. C. A. 440 ; (C. C. Mass.) Willis v. Carpenter, Fed. Cas. No. 17,770. Ala. Higdon v. Fields, 60 So. 594, 6 Ala. App. 281; Central of Georgia Ry. Co. v. Chicago Varnish Co., 53 So. 832, 169 Ala. 287; Meighan v. Bir- mingham Terminal Co., 51 So. 775, 165 Ala. 591; Miller v. Jones' Adm'r, 29 Ala. 174; Hrkland v. Gates, 25 Ala. 465 ; Waters v. Spencer, 22 Ala. 460; Berry v. Hardman, 12 Ala. 604. Ga. Adams v. Governor, 22 Ga. 417; King v. State, 21 Ga. 220. Ind.' Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 638. Iowa. Yeager v. Chicago, R. I. & P. Ry. Co., 123 N. W. 974, 148 Iowa, 231 ; Wiseearver & Stone v. Chicago, R. I. & P. Ry. Co., 119 N. W. 532, 141 Iowa, 121. Me. Caseo Bank v. Keene, 53 Me. 103 ; Lyman v. Redman, 23 Me. 289 ; Blake v. Irish, 21 Me. 450. Mich. Sword V. Keith, 31 Mich. 247; People V. Scott, 6 Mich. 287. Mo. Esstman v. United Rys. Co. of St. Louis, 216 S. W. 526. Mont. Surman v. Cruse, 187 P. 890, 57 Mont. 253. N. H. Hooksett V. Amoskeag Mfg. Co., 44 N. H. 105; Gerrlsh v. New Market Mfg. Co., 30 N. H. 478. N. C. Penn v. Standard Life Ins. Co., 76 S. E. 262, 160 N. C. 399, 42 L. R. A. (N. S.) 597, dismissing petition for rehearing Same v. Standard Life & Accidental Ins. Co., 73 S. B. 99, 158 N. 0. 29, 42 L. R. A. (N. S.) 593. Ohio. Maumee Valley Rys. & Light Co. v.- Hanaway, 7 Ohio App. 99. Okl. Missouri, K. & T. Ry. Co. v. Taylor, 170 P. 1148. Tenu. Hale v. Darter, 10 Humph. 92. Tex. Thompson v. Shannon, 9 Tex. 536; Davis v. Loftin, 6 Tex. 489; Peck V. State, 9 Tex. App. 70. Va. Williams Printing Co. v. Saun- ders, 73 S. E. 472, 113 Va. 156, Ann. Cas. 1913E, 693. Wash. Wheeler v. Hotel Stevens Co., 127 P. 840, 71 Wash. 142, Ann. Cas. 1914C, 576; Harkins v. SeatUe Electric Co.^ 101 P. 836, 53 Wash. 184. Instructions incorrect as ab- stract propositions. Instructions, which, standing alone, would seem to assert that a promise to pay for im- provements made on a farm of an- other by one in possession, for his own benefit, would be valid, though the improvements should be of no value or benefit to the owner, are not erroneous, though incorrect as ab- stract propositions, in a case where §532 INSTRUCTIONS TO JURIES 974 thereby." Thus, an expression used in an instruction, or a special issue submitted, although in itself susceptible of two meanings, is not misleading when, as applied to the evidence, only one mean- ing can be givefa to it.^* § 532. Construction against party asking instruction , When a charge given on request is ambiguous, that construction will be adopted which is least favorable to the party making the request." B. Construction and Efi^bct of Charge as a WHotE § 533. General rule In determining the sufficiency of a particular instruction, or part of a charge, it is not to be considered apart from its context, or the rest of the charge.-"' Both in civil ■'* and in criminal cases " the improvements referred to are shown by the evidence to be of a per- manent character, vyhlch vrould add to the, value of the premises, and did actually increase thSir price on a sub- sequent sale, and where the promise referred to -would naturally be under- stood to mean a promise made at or before the utime the improvements were made. Sword v. Keith, 31 Mich. 247. Instructions are to be interpret- ed in the light of the evidence, and an instruction that a ,iury might con- sider other fires caused by the engines of a railroad company, as bearing on the question of negligence in causing the one complained of, without limit- ing the inquiry as to time, is not er- roneous when the evidence before the jury is within the proper limits. New York, P. & N. R. Co. v. Thomas, 92 Va. 606, 24 S. E. 264. 12 Ala. EJmpire Life Ins. Co. v. Gee, 55 So. 166, 171 Ala. 435. Iowa. Hart v. Cedar Rapids & M. C. Ry. Co., 80 N. W. 662, 109 Iowa, 631. Mich. Botsford v. Kleinhans, 29 Mich. 332. Tex. East Line & R. B. Ry. Co. v. Smith, 65 Tex. 167 ; Mitchell v. Zim- merman, 4 Tex. 75, 51 Am. Dec. 717. Va. Richmond Granite Co. v. Bai- ley, 24 S. E. 232, 92 Va. 554. , Wis. Neumann v. City of La Crosse, 68 N. W. 654, 94 Wis. 103. 13 National Bank of Asheville v. Fidelity & Casualty Co. of New York (C. C. A. N. C.) 89 F. 819, 32 C. C. A. 355. 1* Carter v. Chambers, 79 Ala. 223. 15 TT. S. (C. C. A. Iowa) Chicago Great Western Ry. Co. v. McDonough, 161 F. 657, 88 C. C. A. 517. Cal., De Witt v. Ploriston Pulp & Paper Co., 96 P. 397, 7 Cal. App. 774. Colo. In re Hayes' Estate, 135 P. 449, 55 Colo. 340, Ann. Cas. 1914C, 531 ; Bailey v. Carlton, 95 P. 542, 43 Colo. 4. Conn. Appeal of Wheeler, 100 A. 13, 91 Conn. 388. Fla. Florala Sawmill Co. v. Smith, 46 So. 332, 55 Fla. 447; Steams & Culver Lumber Co. v. Adams, 46 So. 156, 55 Fla. 394. Idaho. Barrow v. B. Ri Lewis Lumber Co., 95 P. 682, 14 Idaho, 698. Ill, Klofski V. Railroad Supply Co., 85 N. E. 274, 235 111. 146, affirm- ing judgment Railroad Supply Co. v. Klofski, 138 111. App. 468 ; Helbig v. Citizens' Ins. Co., 84 N. B. 897, 234 111. 251, affirming judgment Citizens' Ins. Co. V. Helbig, 138 111. App. 115 ; Atchison v. McKinnie, 84 N. E. 208, 233 111. 106; Brew v. Seymour, 133 111. App. 225; Varney v. Taylor, 133 111. App. 154 ; East St Louis & S. Ry. Co. V. Zink, 183 111. App. 127, judg- 1" See note 16 on page 975. 1' See note 17 on page 979. 975 CONSTRUCTION AND OPERATION 533 the instructions of the court must be read together as one con- ment affirmed 82 N. E. 283, 229 111. 180; Chicago Consol. Traction CO. v. Mahoney, 131 lU. App. 591, judgment affirmed 82 N. E. 868, 230 111. 562; Cihcago, R. I. & p. Ry. Co. v. T\irck, 131 111. App. 128. Ind. Pittsburgh, C, O. & St. L. Ry. Co. V. Wood, 84 N. E. 1009, 45 Ind. App. 1. Kan. Chicago, R. I. & P. Ry. Co. v. Brandon, 95 P. 573, 77 Kan. 612. Mass. Plummer v. Boston Elevat- ed Ry. Co., 84 N. B. 849, 198 Mass. 499; Whitney v. Wellesley & B. St. Ry. Co., 84 N. E. 95, 197 Mass. 495. Mich. Anderson Carriage Co. v. Pungs, 117 N. W. 162, 153 Mich. 580 ; Croze V. St. Mary's Canal Mineral Land Co., 117 N. W. 81, 153 Mich. 363. Minn. McCusky v. Kuhlman, 179 N. W. 1000. Miss, mtt V. Terry, 46 So. 829, 92 Miss. 671. Mo. Young V. Lanznar, 112 S. W. 17, 133 Mo. App. 130; Batten v. Modern Woodmen of America, 111 S. W. 513, 131 Mo. App. 381. Neb. Sheibley v. Fales, 116 N. W. 1035, 81 Neb. 795 ; Morrow v. Barnes, 116 N. W. 657, 81 Neb. 688; Maxson V. J. I. Case Threshing Mach. Co., 116 N. W. 281, 81 Neb. 546, 16 L. R. A. (N. S.) 963. N. D. Buchanan v. Minneapolis Threshing Mach. Co., 116 N. W. 335, 17 N. D. 343. S. C. Columbia, N. & L. R. Co. v. Laurens Cotton Mills, 61 S. E. 1089, 82 S. C. 24, rehearing denied 62 S. E. 1119, 82 S. C. 24 ; Cannon v. Dean, 61 S. E. 1012, 80 S. C. 557. Tex. Galveston, H. & N. Ry. Co. v. Cochran (Civ. App.) 109 S. W. 261. Wash. Jensen v. Schlenz, 154 P. 159, 89 Wash. 268; Davis v. City of Wenatchee, 149 P. 337, 86 Wash. 13. 18 V. S. Seaboard Air Line Ry. v. Padgett, 35 S. Ct. 481, 236 U. S. 668, 59 L. Ed. 777, affirming judgment Padgett V. Seaboard Air Line Ry., 83 S. E. 633, 99 S.'C. 364 ; (C. C. A. Ark.) Kansas City Southern Ry. Co. v. Clin- ton, 224 F. 896, 140 C. C. A. 340; Tru- lock V. Willey, 187 F. 956, 112 C. C. A. 1 ; (C. C. A. Oal.) Southern Pac. Co. V. Ward, 208 F. 385, 125 0. 0. A. 601; (C. C. A. Colo.) City of Denver V. Porter, 126 F. 2^8, 61 C. C. A. 168 (C. C. A. Pa.) Pittsburgh Rys. Co. v, Givens, 211 F." 885, 128 C. C. A. 263 Pressed Steel Car Co. v. Nist, 176 iP, 919, 100 C. C. A. 273 ; (C. C. A. Tenn.) Memphis- St. Ry. Co. v. Pierce, 257 F. 659, 168 C. C. A. 609 ; (C. C. A. Tex.) Texas & P. Ry. Co. v. Wineland, 102 P. 673, 42 C. C. A. 588. Ala. Anders v. Wallace, 82 So. 644, 17 Ala. App. 154; Thrasher v. Neely, 72 So. 115, 196 Ala. 576; Sea- board Air Line Ry. Co. v. Mobley, 69 So. 614, 194 Ala. 211 ; Western Union Telegraph Co. v. Holland, 66 So. 926, 11 Ala. App. 510; Powlkes v. Lewis, 65 So. 724, 10 Ala. App. 543 ; Birming- ham Ry., Light & Power Co. v. Mayo, 61 So. 289, 181 Ala. 525; Louisville & N. R. Co. V. Bogue, 58 So. 392, 177 Ala. 349 ; Central of Georgia Ry. Co. V. Knight, 57 So. 253, 3 Ala. App. 436 ; Alabama Consol. Coal & Iron Co. v. Cowden, 56 So. 984, 175 Ala. 108; Birmingham Southern Sy. Co. v. Craig, 55 So. 950, 1 Ala. App. 329; Alabama Consol. Goal & Iron Co. v. Heald, 53 So. 162, 168 Ala. 626 ; Bir- mingham Ry., Light & Power Co. v. King, 42 So. 612, 149 Ala. 504 ; Relter- Conley Mfg. Co. v. Hamlin, 40 So. 280, 144 Ala. 192. Ariz. Phoenix Ry. Co. of Arizona V. Reals, 181 P. 379, 20 Aria. 386. Ark. St. Louis Southwestern Ry. Co. V. Wyman, 178 S. W. 423, 119 Ark. 530; Dunman v. Raney, 176 S. W. 339, 118 Ark. 337; St. Louis, I. M. & S. Ry. Co. V. Brown, 140 S. W. 279, 100 Ark. 107; Arkansas Lumber Co. V. Wallace, 139 S. W. 534, 99 Ark. 537; Western Union Telegraph Co, V. Gillis, 133 S. W. 833, 97 Ark. 226 ; St. Louis, I. M. & S. Ry. Co. v. Lamb, 128 S. W. 1030, 95 Ark. 209; Lowe v. Hart, 125 S. W. 1030, 93 Ark. 548; Southern Anthracite Coal Co. v. Bo- wen, 124 S. W. 1048, 93 Ark. 140; Rock Island Plow Co. v. Rankin Bros. & Winn, 115 S. W. 943, 89 Ark. 24; St. Louis, I. M. & S. Ry. Co. v. Puck- ett, 114 S. W.-224, 88 Ark. 204; Tay- lor V. McOlintock, 112 S. W. 405, 87 Ark. 243. Cal. Freiburg v. Israel (App.) 187 P. 130 ; Baillargeon v. Myers, 182 P. § 533 INSTRUCTIONS TO JURIES 976 nected whole, to ascertain whether they correctly declare the law. 37 ; Taylor v. Pacific Electric Ry. Co., 158 P. 119, 172 Cal. 638 ; Fountain v. Connecticut Fire Ins. Co. of Hartford (App.) 117 P. 630; Peters v. Southern Pac. Co., 116 P. 400, 160 Cal. 48; Parkin v. Grayson-Owen Go„ 106 P. 210. 157 Cal. 41. Colo. National Fuel Co. v. Maccla, 139 P. 22, 25 Colo. App. 441; In re Burnham's Will, 134 P. 254, 24 Colo. App. 131; First National Bank of Ouray v. Shank, 128 P. 56, 53 Colo. 446; Starrett v. Ruth, 119 P. 690, 51 Colo. 583 ; Denver City Tramway Co. V. Brumley, 116 P. 1051, 51 Colo. 251 ; Keefer v. Amicone, 100 P. 594, 45 Colo. 110 ; Denver City Tramway Co. V. Martin, 98 P. 836, 44 Colo. 324; Blackman v. Edsall, 68 P. 790, 17 Colo. App. 429. Conn. Anthony v. Connecticut Co., 92 A. 672, 88 Conn. 700; Bernier v. Woodstock Agr. Society, 92 A. 160, 88 Conn. 558 ; Brodie v. Connecticut Co., 87 A. 798, 87 Conn. 363. Del. Spahn v. People's Ry. Co., 92 A. 727, 3 Boyce, 802. ria. Key V. Moore. 82 So. 810, 78 Fla. 205; Gracy v. Atlantic Coast Line R. Co., 42 So. 903, 53 Fla. 350; Seaboard Air Line Ry. v. Scarborough, 42 So. 706, 52 Fla. 425 ; Jacksonville Electric Co. v. Sloan, 42 So. 516, 52 Fla. 257. , Ga, Bfooks v. Goodin, 99 S. B. 540 23 6a. App. 800 ; City of Atlanta V. ■Williams, 84 S. E. 139, 15 Ga. App. 654 ; Lyon v. Cedartown Lumber Co., 79 S. E. 236, 13 Ga. App. 450. Idaho. Lyons v. Lambrix, 190 P. 356; Cady v. Keller, 154 P. 629, 28 Idaho, 368. 111. McFarlane v. Chicago City Ry, Co., 123 N. E. 638, 288 111. 476, affirming judgment 212 111. App. 664 ; Zeman v. North American Union, 105 N. E. 22, 263 111- 304, affirming judg- ment 181 111. App. 551 ; Wilkinson v. Service, 94 N. E. 50, 249 111. 146, Ann. Cas. 1912A, 41; Dady v. Condit, 70 N. B. 1088, 209 111. 488, affirming judgment 104 111. App. 507; Baker v. Baker, 67 N. E. 410, 202 111. 595 ; Mc- Cormick v. Decker, 204 111. App. 554; Gillette v. Chicago, M. & St. P. Ry. Co., 193 111. App. 304 ; Olcese v. Val Blatz Brewing Co., 144 111. App. 597; Chicago City Ry. Co. v. Hyndshaw, 116 111. App. 367; IlUnois Cent. R. Co. V. Andrews, 116 111. App. 8 ; Mo- bile & O. E. Co. V. Vallowe, 115 111. App. 621, judgment affirmed 73 N. E. 416, 214 111. 124; United States Brewing Co. V. Stoltenberg, 113 111. App. 435, judgment affirmed 71 N. ,E. 1081, 211 111. 531; Grayville Waterworks v. Burdick, 109 111. App. 520; Thompson V. Koperlski, 109 111. App. 466 ; Witte Hardware Co. v. Air Line Transfer Co., 109 111. App. 428 ; Chicago Screw Co. V. Weiss, 107 111. App. 39, judg- ment affirmed 68 N. B. 54, 203 111. 536. , Ind. Laws V. Hammon, W. & E. C. Ry. Co. (App.) 128 N. E. 52; In- dianapolis Traction & Terminal Co. V. Thornburg (App.) 125 N. B. 57 ; Na- parala v. Chicago, S. B. & N. I. Ry. Co., 115 N. E. 694, 64 Ind. App. 169; American Maize Products Co. v. Widi- ger, 114 N. E. 457, 186 Ind. 227 ; Mer- chants' Nat. Bank of Massillon, Ohio, V. Nees, 110 N. E. 73, 62 Ind. App. 290; rehearing denied 112 N. E. 904, 62 Ind. App. 290 r Terre Haute, I. & B, Traction Co. v. Frischman, 107 N. E. 296, 57 Ind. App. 452; Chicago & B. R. Co. V. Dinius, 103 N. E. 652, 180 Ind. 596; Southern Ry. Co. v. Fried- ley, lOO N. B. 481, 52 Ind. App. 192; Terre Haute, I. & B. Traction Co. v. Maberry, 100 N. B. 401, 52 Ind. App. 114 ; Reddick v. Young, 98 N. E. 813, 177 Ind. 632 ; Steele v. Spanhurst, 98 N. E. 733, 50 Ind. App. 564; Cleve- land, C, C. & St. L. Ry. Co. v. Clark, 97 N. B. 822, 51 Ind. App. 392; I. F. Force Handle Co. v. Hisey, 96 N. B. 643, 52 Ind. App. 235; Metropolitan Life Ins. Co. v. Johnson, M N. B. 785, 49 Ind. App. 233; Snow v. In- dianapolis & E. Ry. Co., 93 IJ. E. 1089, 47 Ind. App. 189; Indiana Union Traction Co. v. Myers, 93 N. E. 888, 47 Ind. App. 646; City of Logansport V. Smith, 93 N. B. 883, 47 Ind. App. 64; Indiana Union Traction Co. v. Schwinge, 93 N. E. 35, 46 Ind. App. 525 ; Bicknese v. Brandl, 91 N. E. 41, 46 Ind. App. 269; Cleveland, C, C. & St. L. Ry. Co. V. Heineman, 90 N. E. 899, 46 Ind. App. 388 ; Indiana Nat- ural Gas & Oil Co. V. Wihelm, 86 N. B. 86, 44 Ind. App. 100 ; Sterling v. 977 CONSTRUCTION AND OPERATION § 533 The omissions or inaccuracies of one instruction may be cured by Frick, 86 N. a 65, 171 Ind. 710, judg- ment affirmed on rehearing 87 N. B. 237, 171 Ind. 710 ; AUyn v. Burns, 76 N. E. 636, 37 Ind. App. '223 ; Robin- son V. Shanks, 20 N. E. 713, 118 Ind. 125; Union Mnt. Life Ins. Co. v. Buchanan, 100 Ind. 63; Fischer v. Bell, 91 Ind. 243 ; Babb v. Babb, 89 Ind. 281 ; Branstetter v. Dorrough, 81 Ind. 527. Ind. T. Swofford Bros. Dry Goods Co. V. Smith-McOord Dry Goods Co., 37 S. W. 103, 1 Ind. T. 314. Iowa. Fletcher ■ v. Ketcham, 176 N. W. 245, 188 Iowa, 340; Fuller v. Illinois Cent. R. Co., 173 N. W. 137, 186 Iowa, 686; In re Workman's Es- tate, 156 N. W. 438, 174 Iowa, 222; Crawford y. McElhinney, 154 N. W. 310, 171 Iowa, 606, Ann. Cas. 1917E, 221; Doran v. Waterloo, 0. F. & N. Ry. Co., 147 N. W. 1100; Stotts v. Fairfield, 145 N. W. 61, 163 Iowa, 726 ; Moore v. Pearson, 141 N. W. 1048, 160 Iowa, 449; Mitchell v. Des Moines City Ry. Co., 141 N. W. 43, 161 Ibwa, 100; Lauer v. Baiming, 131 N. W. 783, 152 Iowa, 99; McDivitt v. Des Moines City Ry. Co., 118 N. W. 459, 141 Iowa, 689; Brusseau v. Lower Brick Co., 110 N. W. 577, 133 Iowa, 245. Kan. Zuspann v. Roy, 170 P. 387, 102 Kan. 188; Murphy v. Ludowid Gas & Oil Co., 150 P. 581, 96 Kan. 321; John V. Farwell Co. v. Thomas, 56 P. 151, 8 Kan. App. 614. Ky. Borderland Coal Co. v. Miller, 201 S. W. 299, 179 Ky. 769; Wilt- shire's Adm'x V. Kister, 160 S. W. 743, 156 Ky. 168 ; White v. Jouett, 144 S. W. 55, 147 Ky. 197 ; Paducah Commis- sion Co. V. Boswell, 83 S. W. 144, 26 Ky. Law Rep. 1062; Kentucky Nat. Bank v. O'Neal, 11 Ky. Law Rep. (ab- stract) 763. Me. Nielson v. International Text- book Co., 75 A. 330, 106 Me. 104, 20 Ann. Cas. 591. Md. Gosman Ginger Ale Co. of Baltimore City v. Keystone Bottle Mfg. Co., 106 A. 747, 134 Md. 360; Hochschild v. Cecil, 101 A. 700, 131 Md. 70. Mass. Savageau v. Boston & M. R. R., 96 N. E. 67, 210 Mass. 164; Lock- INST.TO JUBIES— 62 wood V. Boston Elevated Ry. Co., 86 N. E. 934, 200 Mass. 537, 22 L. R. A. (N. S.) 488. Mich. Interstate Const. Co. v. United States Fidelity & Guaranty Co., 174 N. W. 173, 207 Mich. 265; Jacobs V. Hagenback-Wallace Shows, 164 N. W. 548, 198 Mich. 73, L. R. A. 1918A, 504; In re Rockett's Estate, 158 N. W. 12, 191 Mich. 499; Wegner V. Herkimer, 133 N. W. 623, 167 Mich. 587; Custard v. Hodges, 119 N. W. 583, 155 Mich. 361; Smalley v. De- troit & M. Ry. Co., 91 N. W. 1027, 131 Mich. 560; Manistee Nat. Bank v. Seymour, 31 N. W. 140, 64 Mich. 59 ; Kuney V. Dutcher, 22 N. W. 866, 56 Mich. 308; Souvais v. Leavitt, 15 N. W. 37, 50 Mich. 108; Russell v. Phelps, 4 N. W. 1, 42 Mich. 377; Wheeler & Wilson Mfg. Co. v. Walker, 1 N. W. 1035, 41 Mich. 239; Lake Superior Iron Co. V. Erickson, 39 Mich. 492, 33 Am. Rep. 423; Eggleston v. Board- man, 37 Mich. 14; Greenlee v. Low- ing, 35 Mich. 63. Miss. Cumberland Telephone & Telegraph Co. v. Jackson, 48 So. 614, 95 Miss. 79. Mo. Hulse V. St. Joseph Ry. Co., 214 S. W. 150 ; Rappaport v. Roberts (App.) 203 S. W. 676 ; Wiley v. Wiley (App.) 182 S. W. 107; Barrett v. De- lano, 174 S. W. 181, 187 Mb. App. 501; Tawney v. United Rys. Co. of St. Louis, 172 S. W. 8, 262 Mo. 602 ; An- drew V. Linebaugh, 169 S. W. 135, 260 Mo. 623 ; Pendegrass v. St. Louis & S. F. R. Co., 162 S. W. 712, 179 Mo. App. 517; Patterson v. Evans, 162 S. W. 179, 254 Mo. 293; Wilson v. United Rys. Co. of St. Louis, 152 S. W. 426, 169 Mo. App. 405 ; Dutcher v. Wabash R. Co., 145 S. W. 63, 241 Mo. 137; Michael v. Kansas City Western Ry. Co., 143 S. W. 67, 161 Mo. App. 53; Vanderbeck v. Wabash Ry. Co., 133 S. W. 1178, 154 Mo. App. 321; Hales v. Raines, 130 S. W. 425, 146 Mo. App. 232; Turner v. Snyder, 123 S. W. 1050, 139 Mo. App. 656 ; McKinstry v. St. Louis Transit Co., 82 S. W. 1108, 108 Mo. App. 12 ; Copeland v. Wabash R. Co., 175 Mo. 650, 75 S. W. 106; Feary v. O'Neill, 149 Mo. 467, 50 S. W. 918, 73 Am. St. Rep. 440 ; Kitchen 533 INSTEUCTIONS TO JURIES 978 V. Cape Girardeau & S. L. R. Co., 59 Mo. 514 ; Ritchey v. Huntley, 73 Mo. App. 258; Rocs v. Clark, 14 Mo. App. 594, memorandum. Mont. Surman v. Cruse, 187 P. 890, 57 Mont. 253; Pure Oil Co. v. Chicago, M. & St. P. Ry. Co., 185 P. 150, 56 Mont. 266 ; Brockway v. Blair, 165 P. 455, 53 Mont. 531 ; Michalsky V. Centennial Brewing Co., 134 P. 307, 48 Mont. 1 ; Frederick v. Hale, 112 P. 70, 42 Mont. 153. Web. Travis v. Omaha & Council BIufEs St. Ry. Co., 152 N. W. 395, 98 Neb. 200 ; Dore v. Omaha & C. B. St. R. Co., 149 N. W. 792, 97 Neb. 250 ; Hans V. American Transfer Co., 184 N. W. 943, 90 Neb. 834; Bailey v. Kling, 130 N. W. 439, 88 Neb. 699; Christensen v. Tate, 128 N. W. 622, 87 Neb. 848; Smith v. Lorang, 127 N. W. 873, 87 Neb. 537; Sheridan Coal Co. V. C. W. Hull Co., 127 N. W. 218, 87 Neb. 117, 138 Am. St. Rep. 435 ; Mor- ris V. Miller, 119 N. W. 458, 83 Neb. 218, 20 L. R. A. (N. S.) 907, 131 Am. St. Rep. 636, 17 Ann. Cas. 1047; Ze- lenka v. Union Stockyards Co., 118 N. W. 103, 82 Neb. 511 ; Sloan v. Fist, 89 N. W. 760, 2 Neb. (Unof .) 664 ; Chica- go, B. & Q. R. Co. V. Oyster, 78 N. W. 359, 58 Neb. 1. N. J. Shoeffler v. Phillipsburg Horse Car R. Co., 100 A. 199, 90 N. J. Law, 235 ; Veader v. Veader, 99 A. S09, 89 N. J. Law, 727; Kargman v. Carlo, 90 A. 292, 85 N. J. Law, 632. N, M. Victor American Fuel Co. v. Melkusch, 173 P. 198, 24 N. M. 47. N. Y. Dunn v. Ruppert, 151 N. Y. S. 662, 166 App. Div. 390; Booth v. Litchfield, 114 N. T. S. 1009, 62 Misc. Rep. 279 ; Scutt v. Woolsey, 47 N. Y. S. 320, 20 App. Div. 541. N. C. Woody V. Carolina Spruce Co., 101 S. E. 258, 178 N. C. 591; Harris v. Harris, lOO S. B. 125, 178 N. C. 7; McCurry v."Purgason, 87 S. K 244, 170 N. C. 463, Ann. Cas. 1918A, 907 ; Montgomery v. Carolina & N. W. Ry. Co., 85 S. E. 139, 169 N. C. 249 ; Padgett V. McKoy, 83 S. E. 756, 167 N. C. 504, 508; Reynolds v. Palmer, 83 S. B. 755, 167 N, C. 454; Bain v. Lamb, 83 S. B. 466, 167 N. C. 304; Wheeler v. Cole, 80 S. E. 241, 164 N. C. 378; Penn v. Standard Life Ins. Co., 76 S. E. 262, 160 N. O. 399, 42 L. R. A. (N. S.) 597, dismissing petition for rehearing Penn v. Standard Life & Accidental Ins. Co., 73 S, E. 99, 158 N. C. 29, 42 L. R. A. (N. S,) 593 ; Jef- fress V. Norfolk-Southern R. Co., 73 S. B. 1013, 158 N. C. 215; Kornegay V. Atlantic Coast Line R. Co., 70 S. E. 731, 154 N. C. 389 ; Haines v. Smith, 62 S. E. 1081, 149 N. C. 279 ; Everett V. Spencer, 30 S. E. 334, 122 N, C. 1010. N. D. Buchanan v. Occident Ele- vator Co., 157 N. W. 122, 33 N. D. 346 ; McGregor v. Great Northern Ry. Co.,' 154 N. W. 261, 31 N. D. 471, Ann. Cas. .1917B, 141. Ohio. Western- Ohio Ry. Co. v. Fairburn, 124 N. B. 131, 99 Ohio St. 141. Okl. Allison v. Bryan, 151 P. 610, 50 Okl. 677; Missouri, O. & G. Ry. Co. V. Collins, 150 P. 142, 47 Okl. 761. Or, Michellod v. Oregon-Washing- ton R. & Nav. Co., 168 P. 620, 86 Or. 329; Hudson v. Brown Lumber Co., 154 P. 533, 80 Or. 506 ; Macchi v. Port- land Ry., Light & Power Co., 148 P. 72, 76 Or. 215; Powder Valley State Bank v. Hudelson, 144 P. 494, 74 Or. 191 ; Astoria Southern Ry. Co. v. Pa- cific Surety Co., 137 P. 857, 68 Or. 569 ; Wa,dhams & Co. v. Inman, Poul- sen & Co., 63 F. 11, 38 Or. 143. Pa. McDyer v. Eastern Pennsyl- vania Rys. Co., 76 A. 841, 227 Pa. 641 ; Stokes v. Ralpho Tp., 40 A. 958, 187 Pa. 333 ; Menhennet v. Davis, 71 Pa. Super. Ct. 260; Renn v. Tallman, 25 Pa. Super. Ct. 503; Brown v. Mont- gomery, 21 Pa. Super. Ct. 262 ; Schon- dorf V. Griffith, 13 Pa. Super. Ct. 580. S, O. Hair v. Winnsboro Bank, 88 S. B. 26, 103 S. C. 343 ; Black v. State Co., 83 S. B. 1088, 99 S. C. 432 ; Single- tary v. Seaboard Air Line Ry. Receiv- ers, 71 S. E. 57, 88 S. C. 565; Wil- loughby V. North Eastern R. Co., ^9 S. E. 629, 52 S. C. 166. S. D. Duprel v. Collins, 146 N. W. 593, 33 S. D. 365. Tex. Shipley v. Missouri, K. & T. Ry. Co. of Texas (Civ. App.) 199 S. W. 661 ; Magnolia Motor Sales Corp. V. ChafCee (Civ. App.) 192 S. W. 562 ; Atchison, T. & S. F. Ry. Co. v. Stev- ens (Civ. App.) 192 S. W. 304; Texas Co. V. Earles (Civ. App.) 164 S. W. 28; St. Louis, B. & M. Ry. Co. v. 979 CONSTRUCTION AND OPERATION § 53S Jenkins (Civ. App.) 163 S. W. 621; Ft. Worth & D. C. Ry. Co. v. Taylor (Civ. App.) 162 S. W. 967; Atchison, T. & S. F. Ry. Co. v. Bryant (Civ. App.) 162 S. W. 400 ; Vickrey v. Dock- ray (Civ. App.) 158 S. W. 1160; Carl v. Wolcott (Civ. App.) 156 S. W. 334 ; Galveston, H. & H. R. Co. v. Hodnett (Civ. App.) 155 S. W. 678; Freeman V. Kennerly (Civ. App.) 151 g. W. 580; Nussbaum & Scharff v. Trinity & Brazos Valley Ry. Co. (Civ. App.) 149 S. W. 1083; Ray wood Rice Canal & MUling Co. V. Erp, 146 S. W. 155, 105 Tex. 161, reversing judgment (Civ. App.) Erp V. Raywood Canal & Mill- ing Co., 130 S. W. 897 ; Marrett v. Har- rington (Civ. App.) 145 S. W. 254 ; Con- cho, S. S. & L. V. Ry. Co. V. Sanders (Civ. App.) 144 S. W. 693 ; Stark v. Coe (Civ. App.) 134 S. W. 373 ; El Paso & S. W. R. Co. v. Eichel & Weikel (Civ. App.) 130 S. W. 922 ; Gulf, C. & S. F. Ry. Co. V. Shult^, 129 S. W. 845, 61 Tex. Civ. App. 93 ; Houston & T. C. R. Co. V. Maxwell, 128 S. W. 160, 61 Tex. Civ. App. 80; Feigelson v. Brown (Civ. App.) 126 S. W. 17; Posener v. Har- vey (Civ. App.) 125 S. W. 356 ; Hous- ton & T. C. R. Co. V. Haberlin, 125 S. W. 107, 58 Tex. Civ. App. 375; San Antonio Traction Co. v. Higdon, 123 S. W. 732, 58 Tex. Civ. App. 83 ; St. Louis Southwestern Ry. Co. of Texas v. Taylor, 123 S. W. 714, 58 Tex. Civ. App. 139; Franks v. Harkness (Civ. App.) 117 S. W. 913 ; International & G. N. Ry. Co. V. AUeman, 115 S. W. 73, 52 Tex. Civ. App. 565 ; Galveston, H. & N. Ry. Co. v. Olds (Civ. App.) 112 S. W. 787; Texas & P. Ry. Co. v. Cotts (Civ. App.) 95 S. W. 602; Texas Cent. Ry. Co. v. Miller (Civ. App.) 88 S. W. 499 ; Missouri, K. & T. Ry. Co. of Texas v. Criswell (Civ. App.) 88 S. W. 373. Utah. Hunt v. P. J. Moran, Inc., 150 P. 953, 46 Utah, 388 ; Utah Ass'n of Creditmen v. Boyle Furniture Co., 136 P. 572, 43 Utah, 523. Vt. Reed v. Wilmington Savings Bank, 93 A. 265, 89 Vt. 6. Va. Southern Ry. Co. v. Grubbs, SOS E. 749, 115 Va. 876 ; Peek v. City of Hampton, 80 S. E. 593, 115 Va. 855 ; Virginia Portland Cement Co. v. Luck's Adm'r, 49 S. E. 577, 103 Va. 427. Wash. Travis v. Schnebley, 156 P. 400, 90 Wash. 463 ; Howard v. Wash- ington Water Power Co., 134 P. 927,, 75 Wash. 255, 52 L. R. A. (N. S.) 578 ; Independent Asphalt Paving Co. v. Hein, 131 P. 471, 73 Wash. 127; Mcll- waine v. Tacoma Ry. & Power Co., 129 P. 1093, 72 Wash. 184; Mk)rran v. Chicago, M. & P. S. Ry. Co., 126 P. 73, 70 Wash. 114 ; Myhra v. Chicago, ML & P. S. Ry. Co., 112 P. 939, 62 Wash. 1 ; Gray v. Washington Water Power Co., 71 P. 206, 30 Wash. 665; Bell V. City of Spokane, 71 P. 31, 30 Wash. 508. W. Va. Howes v. Baltimore & O. R. Co., 87 S. B. 456, 77 W. Va. 362. Wyo. Wood V. Wood, 164. P. 844, 25 Wyo. 26. 17 U. S. (C. C. A. La.) Le More v. United States, 253 F. 887, 165 Q. C. A. 367, certiorari denied 39 S. Ct. 184,. 248 U. S. 586, 63 L. Ed. 434. Fla. Gadsden v. State, 82 So. 50, 77 Fla. 627. 111. People V. Laures, 124 I*. B. 585, 289 lU. 490 ; People v. Foster, 123 N. E. 534, 288 lU. 371. Mich. People v. Sharac, 176 N. W. 431, 209 Mich. 249. Mo. State v. Reppley, 213 S. W. 477, 278 Mo. 333. Mont. State v. Smith, 190 P. 107,. 57 Mont. 563 ; Same v. Dunn, 190 P. 121, 57 Mont. 591. Neb. Francis v. State, 175 N. W. 675, 104 Neb. 5 ; Parker v. State, 175 N. W. 677, 104 Neb. 12; Mauzy v. State, 174 N. W. 325, 103 Neb. 775; Kirk V. State, 172 N. W. 527, 103 Neb. 484. N. J. State V. Tachin, 108 A. 318,. 93 N. J. Law, 485, affirming judgment 106 A. 145, 92 N. J. Law, 269. Okl. Gunter v. State, 184 P. 797, 16 Okl. Cr. 476; Mathews v. State,. 184 P. 468, 16 Okl. Cr. 466; Wilson V. State (Cr. App.) 183 P. 613; Davis V. State, 182 P. 909, 16 Okl. Cr. 377 ; January v. State, 181 P. 514, 16 OkL Or. 166. Or. State V. Butler, 186 P. 55, 96 Or, 219. S. C. Sandel v. State, 104 S. E. 567, 13 A. L. R. 1268. Tex. Anderson v. State, 217 S. W. 390, 86 Tex. Cr. R. 207; Johnson v. State, 216 S. W. 192, 86 Tex. Cr. R. §533 INSTRUCTIONS TO JUEIES 980 the contents of the other instructions; or some of them,^* and if, 276; Zimmerinan v. State, 215 S. W. 101, 85 Tex. Or. R. 630. Wash. State v. Sowders, 186 P. 260, 109 Wash. 10. Wyo. Loy v. State, 185 P. 796, 26 Wyo. 381. Illustrations of instructions held proper \rhen considered as a -whole. In a prosecution for murder, resulting in conviction of manslaugti- ter, instruction tliat in case of doubt as to whether defendant was guilty of murder or manslaughter, the jury should give him the benefit of the doubt, and find him guilty of some- thing they were certain he was guilty of beyond a reasonable doubt, was not erroneous as requiring the jury to find guilt of some crime, murder,, or manslaughter, in view of the follow- ing instruction that, if the state fail- ed to convince of guilt beyond a rea- sonable doubt of any ofCense charged, the' jury should acquit. State v. Brown, 101 S. E. 847, 113 S. 0. 513. In trial for grand larceny, instruc- tion that it was not necessary for state to prove that all ofl property was taken, or that it was taken by defendant, which, taken with other parts of charge, was to be construed as meaning that it was not neces- sary to prove that defendant took property with his own hands, and that to convict it was only necessary to show that all or any part of prop- erty was taken, was not erroneous. State V. Dodds. 160 N. W. 578, 41 N. D. 326. In prosecution for receiving stolen goods, instruction failing to embody In the definition of the crime the element of knowledge, at the time of receiving the goods, that they were stolen goods, but not informing the jury that, if they found the enumerat- ed elements to exist, they could con- vict, was not error, where another in- struction clearly indicated that such knowledge was an essential element; and if accused desired a more specific instruction on the subject, he should have tendered ' it and requested the court to give it. Partlow.v. State (Ind.) 128 N. E. 436. 18 Ark. Russ V. Strickland, 220 S. W. 451, 144 Ark. 642; St. Louis Southwestern Ry. Co. v. Graham, 102 S. W. 700, 83 Ark. 61, 119 Am. St. Rep. 112. , Cal. Hamlin v. Pacific Electric Ry. Co., 89 P. 1109, 150 Cal. 776. ria. Jackson v. Citizens' Bank & Trust Co., 44 So. 516, 53 Fla. 265; Atlantic Coast Line R. Co. v. Crosby, 43 So. 318, 53 Fla. 400. Ga. Bishop V. Georgia Nat. Bank, 78 S. E. 947, 13 Ga. App. 38; City of Macon v. Daley, 58 S. E. 540, 2 Ga. App. 355; Spence v. Morrow, 58 S. E. 356, 128 Ga. 722. Idaho. Whitney v. Cleveland, 91 P. 176, 13 Idaho, 558. 111. Peoria & P. Terminal Ry. v. Schant'z, 80 N. E. 1041, 226 111. 506, affirming judgment 130 111. App. 141 ; American Car & Foundry Co. v. Hill, 80 N. E. 784, 226 111. 227, affirming judgment 128 111. App. 176; McCon- nell V. Chicago Rys. Co., 199 111. App. 490 ; Illinois Steel Co. v. Ziemkowski, 123 111. App. 285, judgment affirmed 77 N. E. 190, 220 111. 324, 4 L. R. A. (N. S.) 11©1 ; City of Gibson v. Mur- ray, 120 111. App. 296, judgment af- firmed 75 N. E. 319, 216 111. 589. Ind. Lake) Erie & W. R. Co. v. Howarth (App.) 124 N. B. 687, rehear- ing denied 127 N. B. 804; City of Blobmirigton v. Woodworth, 81 N. E. 611, 40 Ind. App. 373. Iowa. Breiner v. Nugent, 111 N. W. 446, 136 Iowa, 322. Mass. Doe V. Boston & W. St. Ry. Co., 80 N. B. 814, 195 Mass. 168. Mo. McKinney v. Martin-HoUoran- Klaus Laundry Co., 200 S. W. 114, 198 Mo. App. 386; Bell v. Central Elec- tric Ry. Co., 103 S. W. 144, 125 Mo. App. 660 ; Sipple v. Laclede Gaslight Co., 102 S. W. 608, 125 Mo. App. 81 ; St. Louis, I. M. & S. Ry. Co. v. Stew- art, 100 S. W. 583, 201 Mo. 491. Neb. Coffey v. Omaha & C. B. St. Ry. Co., 112 N. W. 589, 79 Neb. 286 ; Vanderveer v. Moran, 112 N. W. 581, 79 Neb. 431; Lincoln Traction Co. v. Brookover, 111 N. W. 357, 77 Neb, 221, reversing judgment on rehear- ing 109 N. W. 168, 77 Neb. 217. N. Y. Butler v. Gazette Co., 104 N. Y. S. 687, 119 App. Div. 767. 981 CONSTRUCTION AND OPERATION § 533 when the instructions of the court are considered as a whole, they correctly state the law and are not inconsistent or misleading, the fact that a particular instruction or isolated paragraph may be ob- jectionable, as inaccurate or misleading, will not constitute ground for reversal.*^ Okl. Hawkins v. State, 186 P. 490, 16 Okl. Or. 382. Or. Ridings v. Marion County, 91 P. 22, 50 Or. 30. S. C Keys v. Winnsboro Granite Co., 56 S. E. 949, 76 S. C. 284. Tex. Thayer v. Clark, 104 S. W. 196, 47 Tex. Civ. App. 61. Xrtali. Rogers v. Rio Grande West- ern Ry. Co., 90 P. 1075, 32 Utah, 367, 125 Am. St. Rep. 876. Va. Virginia-Carolina Chemical Co. V. Knight, 56 S. E. 725, 106 Va. 674. Wash. Buckley v. Massachusetts Bonding & Insurance Co., 192 P. 924. Wis. Pelton V. Spider Lake Saw- mill & Lumber Co., 112 N. W. 29, 132 Wis. 219, 122 Am. St. Rep. 963. Charges on contributory negli- gence. Where the court correctly charged on contributory negligence and declared that all the instructions must be taken as a whole, an instruc- tion omitting all reference to contrib- utory negligence was not erroneous on that ground. Coors v. Brock, 125 P. 599, 22 Colo. App. 470. In pass- ing on the question whether an in- struction, in an action for injuries to a street car pkssenger, was erroneous for. failing to charge on contributory negligence, It was proper to consider other instructions in reference to her negligence, and which covered the law on the subject. Louisville & S. I. Traction Co. v. Worrell, 86 N. E. 78, 44 Ind. App. 480. Where, in an action for injuries to a pedestrian on a bridge over a street, caused by a cinder thrown into his eye by an engine on the street, the court charged that pedestrians had a right to cross on the bridge, but that in crossing they must act as a person of ordinary prudence, with knowledge and experi- ence of such pedestrians, a charge that a pedestrian must not blindly and heedlessly rush in a place where danger is likely to be apprehended, and that if plaintiff met this require- ment, he was not guilty of contribu- tory negligence, but if he fell short thereof, he was guUty of negligence, was not erroneous on the issue of contributory negligence, for the en- tire charge, when taken together, re- quired the pedestrian to exercise rea- sonable care. Coffer v. Erickson, 112 P. 643, 61 Wash. 559. Error in using phrase "approxi- mate cause." Error In using the expression "approximate cause" In instruction that if kindling of fire by defendant on its premises was the approximate cause of communicating sparks of fire resulting in the destruc- tion of insured's property to find for plaintiffs was cured b^ general in- struction, stating, among other things, that "proximate cause" is the prin- cipal cause and is an important mat- ter in cases of this kind. Northwest Door Co. v. Lewis Inv. Co., 180 P. 495, 92 Or. 186. 19 U. S. Northern Pac. R. Co. v. Lynch, 19 S. Ct. 878, 173 U. S. 701, 43 L. Ed. 1185, affirming judgment (C. C. A. Mont.) 79 F. 268, 24 O. C. A. 570; Chicago & N. W. Jly. Co. v. Whitton, 80 U. S. (13 Wall.) 270, 20 L. Ed. 571; (0. O. A. Ark.) Guild v. Andrews, 137 F. 369, 70 C. C. A. 49 ; (C. C. A. Neb.) Kerr-Murray Mfg. Co. V. Hess, 98 F. 56, 38 C. 0. A. 647; (C. C. A. N. J.) North Jersey St. Ry. Co. V. Purdy, 142 F. 955, 74 O. C. A. 125 ; Camden & S. Ry. Co. v. Burr, 91 F. 351, 33 C. C. A. 557; (C. O. A. Tex.) Texas & P. Ry. Co. v. HoUiday, 83 F. 452, 27 C. O. A. 558, writ of error dismissed 18 S. Ct. 947, 42 L. Ed. 1217. Ala. Ballenger v. Shumate, 65 So. 416, 10 Ala. App. 329 ; Sheffield Co. v. Harris, 61 So. 88, 183 Ala. 357 ; West- ern Union Telegraph Co. v. Snell, 56 So. 854, 3 Ala. App. 263; Decatur Car Wheel & Mfg. Co. v. Mehaffey, 29 So. 646, 128 Ala. 242; Southern § 533 INSTRUCTIONS TO JUEIBS 982 Ry. Co. V. Lynn, 29 So. 573, 128 Ala. 297; Alabama G. S. R. Co. v. Hill, 93 Ala. 514, 9 So. 722, 30 Am. St. Rep. 65; Montgomery & E. Ry. Co. V. Stewart, 91 Ala. 421, 8 So. 708. Ark. Kansas City Southern Ry. Co. V. Sparks, 222 S. W. 724, 144 Ark. 227; Redman v. Hudson, 186 S. W. 312, 124 Ark. 26 ; St. Louis, I. M. & S. Ry. Co. V. Hydrick, 160 S. W. 196, 109 Ark. 231; St. Louis, I. M. & S. Ry. Co.- V. Plott, 157 S. W. 385, 108 Ark. 292 ; Standard Life & Accident Ins. Go. V. Schmaltz, 53 S. W. 49, 66 Ark. 588, 74 Am. St. Rep.- 112; Burton v. Merrick, 21 Ark-. 357. Cal. Lawrence v. Goodwill (App.) 186 P. 781; Darrell v. Mutual Ben. Life Ins. Co. (App.) 186 P. 620 ; Ran- dolph V. Hunt, 183 P. 358, 41 Cal. App. 789; Froeming v. Stockton Electric R. Co., 153 P. 712, 171 Cal. 401, Ann. Cas. 1918B, 408 ; Polkinghorn v. Riv- erside Portland Cement Co., 142 P. 140, 24 Cal. App. 615; Ingalls v. Monte Cristo Oil & Development Co., 139 P. 97, 23 Cal. App. 652 ; Moseley V. Los Angeles Packing Co., 134 P. 994, 166 Cal. 59 ; Rialto Const. Co. v. Reed, 118 P. 473, 17 Cal. App. 29; De Witt V. Floriston Pulp & Paper Co., 96 P. 397, 7 Cal. App. 774 ; Hay- den V. Consolidated Mining & Dredg- ing Co., 84 P. 422, 3 Cal. App. 136; In re Keithley's Estate, 66 P. 5, 134 Cal. 9; Thomas v. Gates, 58 P. 315, 126 Cal. 1; Gray v. Eschenyi 57 P. 664, 125 Cal. 1; Brittan v. Oakland Bank of Savings, 57 P. 84, 124 Cal. 282, 71 Am. St. Rep. 58, affirming or- der 44 P. 339, 112 Cal. 1; Sandell v. Sherman, 107 Cal. 391, 40 P. 493 ; Peo- ple V. McDowell, 64 Cal. 467, 3 P. 124. Colo. Idaho Gold Coin Min. & Mill. Co. V. Colorado Iron Works Co., Ill P. 553, 49 Colo. 66; Grimes v. Greenblatt, 107 P. 1111, 47 Colo. 495, 19 Ann. Cas. 608; Stratton Cripple Creek Mining & Development Co. v. Ellison, 94 P. 303, 42 Colo. 498; Inge- marson v. Coffey, 92 P. 908, 41 Colo. 407 ; City of Colorado Springs v. May, 77 P. 1093, 20 Colo. App. 204; Den- ver Dry-Goods Co. v. Martine, 55 P. 743, 12 Colo. App. 299 ; Curr v. Hun- dley, 3 Colo. App. 54, 31 P. 939 ; Hurd V. Atkins, 1 Colo. App. 449, 29 P. 528 ; Simonton v.- Rohm, 14 Colo. 51, 23 P. 86; Dozenback v. Baymer, 13 Colo. 451, 22 P. 787; Finerty v. Fritz, 6 Colo. 136. Conn. Adams v. Pierce, 110 A. 50,. 94 Conn. 613 ; Appeal of Wheeler, 100 A. 13, 91 Conn. 388 ; Reed v. Heyman, 66 A. 322, 80 Conn,, 311; Benedict V. Everard, 46 A. 870, 73 Conn. 157.. D. C. Turner v. American Securi- ty & Trust Co., 29 App. D. C. 460; Georgetown & T. Ry. Co. v. Smith, 25- App. D. C. 259, 5 L. R. A. (N. S.) 274.. Fla. Burnett v. Soule, 83 So. 461,. 78 Fla. 507; Bibl^ v. United Grocery Co., 74 So. 880, 73 Fla. 589 ; Florida East Coast By. Co. v. Knowles, 67 So. 122, 68 Fla. 400; Hartford Fire Ins. Co. V. Brown, 53 So. 838, 60 Fla. 83; Pensacola Electric Co. v. Bissett,. 52 So. 367, 59 Fla. 360 ; Cross v. Aby,. 45 So. 820, 55 Fla. 311; Atlantic- Coast Line R. Co. v. Beazley, 45 So.. 761, 54 Fla. 311; Smith v. Bagwell,. 19 Fla. 117, 45 Am. Rep. 12. Ga. Bishop v. Calhoun Nat. Bank, 91 S. E. 1055, 19 Ga. App. 713 ; Rog- ers, Gassels & Fleming v. Bennett, 91 S. E. 917, 19 Ga. App. 520; Cordray v. James, 91 S. E. 239, 19 Ga. App. 156 ; Nessmith Lumber Co. v. Berriem County Bank, 90 S. E. 1039, 18 Ga. App. 788; Southern By. Co. v. Chit- wood, 82 S. B. 135, 141 Ga. 769; Clark V. Clark, 81 S. E. 129, 141 Ga. 437; Kerr Glass Mfg. Co. v. Americus Gro- cery Co., 79 S. E. 381, 13 Ga. App., 512; Murdock v. Adamson, 77 S. E. 181, 12 Ga. App. 275; Atlantic- Coast Line R. Co. v. Jones, 63 S. E. 834, 132 Ga. 189; Bush v. Fourcher, 59 S. E. 459, 3 Ga. App. 43 ; Western & A. R. Co. V. Tate, 59 S. B. 266, 129- Ga. 526; Teasley v. Bradley, 47 S.. E. 925, 120 Ga. 373; Russell v. Brunswick Grocery Co., 47 S. E. 528, 120 Ga. 38; Farmers' & Merchants'' Bank v. Riddle, 41 S. E. 580, 115 Ga. 400; City Council of Augusta v. Tharpe, 38 S. E. 389, 113 Ga. 152; Webb V. Wight & Weslosky Co., 37 S. B. 710, 112 Ga. 432. Idaho. Kelly v. Lemhi Irrigation- & Orchard Co., 168 P. 1076, 30 Idaho, 778; Taylor v. Lytle, 160 P. 942, 29' Idaho, 546: Quirk v. Sunderlin, 130- P. 374, 23 Idaho, 368 ; Just v. Idaho Canal & Improvement Co., 102 P. 381, 16 Idaho. 639, 133 Am. St. Rep.. 983 CONSTRUCTION AND OPERATION 533 140 ; Tarr v. Oregon Short Line R. Co., 93 P. 957, 14 Idaho, 192, 125 Am. St. Rep. 151. 111. Judy V. Judy, 104 N. B. 256, 261 111. 470 ; Greenburg v. S. D. Childs & Co., 89 N. E. 679, 242 lU. 110 ; Van Cleef V. City of Chicago, 88 N. E. 815, 240 111. 318, 23 L. R. A. (N. S.) 636, 130 Am. St. Rep. 275; Chicago City Ry. Co. v. Hagenback, 81 N. E. 1014, 228 111. 290; Chicago City Ry. Co. T. Shreve, 80 N. E. 1049, 226 111. 530, aflBrming judgment 128 111. App. 462; Fitzgerald v. Benner, 76 N. E. 709, 219 111. 485, affirming judgment 120 111. App. -447 ; West Chicago St. JR. Co. V. Schulz, 75 N. E. 495, 217 111. 322; Dueber Watch Case Mfg. Co. V. Young, 155 111. 226, 40 N. B. 582 ; Dacey v. People, 116 111. 555, 6 X. E. 165; Riggin v. Keck, 203 111. App. 87; Smiley v. Barnes, 196 111. App. 530; Hitz v. Illinois Cent. R. Co., 183 111. App. 558; Swancutt v. W. M. Trout Auto Livery Co., 176 111. App. 606-; McMaster.v. Spencer, 129 111. App. 131 ; Thomas v. Mosher, 128 111. App. 479 ; Chicago City Ry. Co. v. Shreve, 128 111. App. 462, judgment affirmed 80 N. E. 1049, 226 111. 530; Eldorado Coal & Coke Co. v. Swan, 128 111. App. 237, judgment affirmed 81 N E. 691, 227 111. 586; People v. Cook County, 127 111. App. 401 ; Chi- cago, P. & St. L,. Ry. Co. V. Reuter, 119 111. App. 232, affirmed 79 N. B. 166, 223 111. 387 ; Kessel v. Mayer, 118 111 App. 267 ; Chicago & E. I. R. Co. V. Crose, 113 111. App. 547; Illinois Life Ins. Co. v. Lindley, 110 111. App. 161; Grand Lodge, Brotherhood of Locomotive Firemen, v. OrreU, 109 lU. App 422 ; Junction Min. Co. v. Good- win, 109 111. App. 144 ; City of Macon V. Holcomb, 109 111. App. 135; Pungs V. American Brake Beam Co., 102 111. App. 76, judgment affirmed 65 N. E. 645, 200 111. 306 ; Chicago & W. I. R. Co. V. Doan, 93 111. App. 247, af- firmed 62 N. E. 826, 195 111. 168; Johnston V. Hirschberg, 85 111. App- 47, affirmed 57 N. E. 26, 185 lU- 445; Gemand v. Heinly, 84 111. App. 321. Ind. Olds V. Lochner, 57 Ind. App. 269, 106 N. E. 889; EvansviUe & T. H R Co. v. Hoffman, 105 N. E. 788, 56 Ind. App. 530; Walley v. Wiley, 104 N. E. 318, 5© Ind. App. 171; Joseph B. Lay Co. v. Mendenhall, 102 N. E. 974, 54 Ind. App. 342; Cohen V. Reichman, 102 N. B. 284, 55 Ind. App. 164; Indianapolis & M. Rapid Transit Co. v. Reeder, 100 N. E. 101, 51 Ind. App. 533 ; Ft. Wayne Iron & Steel Co. v. Parsell, 94 N. E. 770, 49 Ind. App. 565; Snow v. Indianapolis & E. Ry. Co., 93 N. E. 1089, 47 Ind. App. 189; American Sheet & Tin Plate Co. V. Bucy, 87 N. B. 1051, 43 Ind. App. 501 ; Brinkman v. Pacholke, 84 N. B. 762, 41 Ind. App. 662 ; Abney V. Indiana Union Traction Co., 83 N. Ej 387, 41 Ind. App. 53 ; Indianapolis Traction & Terminal Co. v. Miller, 82 N. B. 113, 40 Ind. App. 403 ; South- em Indiana Ry. Co. v. Baker, 77 N. B. 64, 37 Ind. App. 405 ; Indianapolis St. Ry. Co. V. James, 74 N. B. 536, 35 Ind. App. 543; Nickey v. Dou- gan, 73 N. E. 288, 34 Ind. App. 601; Conrad v. Cleveland, C, O. & St. L. Ry. Co., 72 N. E. 489, 34 Ind. App. 133; Cleveland, C, C. & St. L. Ry. Co. V. C. & A. Potts & Co., 71 N. E. 685, 33 Ind. App. 564 ; Pittsburgh, C, O. & St. L. Ry. Co. V. Collins, 71 N. B. 661, 163 Ind. 569 ; City of Linton V. Smith, 68 N. B. 617, 31 Ind. App. 546; Southern Indiana Ry. Co. v. Harrell (App.) 66 N. E. 1016, judg- ment reversed 68 N. B. 262, 161 Ind. 689, 63 L. R. A. 460; Archibald v. Harvey, 54 N. E. 813, 23 Ind. App. 30; White v. Beem, 80 Ind. 289. Iowa. Adami v. Fowler & Wilson Coal Co., 179 N. W. 422 ; Spillett v. Clear Lake Boating & Amusement Co., 155 N. W. 822; Rose v. City of Ft. Dodge, 155 N. W. 170, 180 Iowa, 331; Finnane v. City of Perry, 145 N. W. 494, 164 Iowa, 171; Reed v. Rex Fuel Co., 141 N. W. 1056, 160 Iowa, 510 ; Cooper v. City of Oelwein, 123 N. W. 955, 145 Iowa, 181 ; Clark V. Johnson County Telephone Co., 123 N. W. 327, 146 Iowa, 428 ; Hawkins v. Young, 114 N. W. 1041, 137 Iowa, 281; Montrose Sav. Bank v. Claus- sen, 114 N. W. 547, 137 Iowa, 73; Heath v. Hagan, 113 N. W. 342, 135 Iowa, 495; Templin v. Incorporated City of Boone, 102 N. W. 789, 127 Iowa, 91 ; Hart v. Cedar Rapids & M. C. Ry. Co., 80 N. W. 082, 109 Iowa, 533 INSTRUCTIONS TO JURIES 984 631 ; Zimmerman v. Brannon, 72 N. W. 439, 103 Iowa, 144. Kan. Kapler v. Stockgrowers' State Bank of Maple HiU, 185 P. 888, 105 Kan. 606 ; Madey v. Swift & Co., 168 P. 1105, 101 Kan. 771; Welliver V. Clark, 155 P. 4, 97 Kan. 246 ; Root V. Cudahy Packing Co., 147 P. 69, 94 Kan. 339; Grimes v. Emery, 146 P. 1135, 94 Kan. 701, affirming judg- ment 141 P. 1002, 92 Kan. 911 ; Meyer V. City of Eosedale, 113 P. 1043, 84 Kan. 302; City of Kansas City v. Smith, 54 P. 329, 8 Kan. App. 82; Gilmore v. Gilmore, 50 P. 97, 6 Kan. App. 453 ; Sweeney v. Merrill, 16 P. 454, 38 Kan. 216, 5 Am. St. Rep. 734. Ky. W. M. Ritter Lumber Co. v. Jordan, 128 S. W. 596i, 138 Ky. 522; Chesapeake & O. Ry. Co. v, Perkins, 105 S. "W. 148, 127 Ky. 110, 31 Ky. Law Rep. 1350; City of Louisville V. McGill, 52 S. W. 1053, 21 Ky. Law Rep. 718; Johnson v. Peak, 50 S. W. 682, 20 Ky. Law Rep. 1937; Louis- ville & N. R. Co. V. Williams, 15 Ky. Law Rep. (abstract) 31; Kel- lar V. Edmondson, 14 Ky. Law Rep. (abstract) 894 ; Kentucky & I. Bridge Co. V. Cecil, 14 Ky. Law Rep. (ab- stract) 477 ; Lancaster v. Turpin, 8 Ky. Law Rep. (abstract) 430. Md. Bishop v. Frantz, 93 A. 412, 125 Md. 183. Mass. Moulton V. Boston Elevat- ed Ry. Co., 127 N. E. 886, 236 Mass, 234; Cronin v. Boston Elevated Ry, Co., 123 Nj E. 686, 233 Mass. 243 McLellan v. Fuller, 115 N. B. 481, 226 Mass. 374 ; Dewey v. Boston Ele- vated Ry., 105 N. E. 366, 217 Mass. 599; Maloy v. Boston Elevated Ry. Co., .104 N. E. 459,. 217 Mass. 108 Lambeth Rope Co. v. Btigham, 49 N. E. 1022, 170 Mass. 518. Mich. Jordan v. Wixson, 155 N. W. 387, 189 Mich. 288 ; Kaaro v. Ah- meek Mining Co., 146 N. W. 149, 178 Mich. 661; Folks v. Burletson, 142 N. W. 1120, 177 Mich. 6; Keenan v. City of Mt. Pleasant, 142 N. W. 1114, 176 Mich. 620; Frohlich t. Independ- ent Glass Co., 139 N. W. 5, 173 Mich. 428; Chapin v. Ann Arbor R. Co., 133 N. W. 512, 167 Mich. 648 ; Beat- tie v. City of Detroit, 100 N. W. 574, 137 Mich. 319 ; Bay City Iron Co. v. Emery, 87 N. W. 652, 128 Mich. 506; Kunst V. Ringold, 74 N. W. 292, 116 Mich. 88; Provost v. Brueek, 67 N. W. 1114, 110 Mich. 136; Pray v. Cad- well, 15 N. W. 92, 50 Mich. 222; Grand Rapids & I. R. Co. v. Camer- on, 8 N. W. 99, 45 Mich. 451; Coots V. Chamberlain, 39 Mich. 565 ; Bur- dick V. Michael, 32 Mich. 246; Dan- iels V. Clegg, 28 Mich. 32; McGinnis V. Kempsey, 27 Mich. 363. Minn, ite Vriendt v. Chicago G. W. By. Co., 175 N. W. 99, 144 Minn. 467; Jelos v. Oliver Iron Mining Co., 141 N. W. 848, 121 Minn. 473; Korby V. Chesser, 108 N. W. 520, 98 Minn. 509. Miss. Mississippi Cent. R. Co. v.- , Hardy, 41 So. 505, 88 Miss. 732 ; War- ren County V. Rand, 40 So. 481, 88 Miss. 395; Yazoo & M. V. R. Co. v. Williams, 39 So. 489, 87 Miss. 344. Mo. I Criswell v. Selecman (App.) 185 S. W. 1145 ; Richardson v. Touch- stone (App.) 180 S. W. 1010; Stoltze V. United Rys. Co. of St. Louis, 166 S. W. 1102, 183 Mo. App. 304; John- son V. Springfield Traction Co., 161 S. W. 1193, 176 Mo. App. 174 ; Gabriel V. Metropolitan St. Ry. Co., 148 S. W. 168, 164 Mo. App. 56; Heinzle v. Metropolitan St. Ry. Co., Ill S. W. 536, 213 Mo. 102 ; Smith v. Wabash R. Co., 107 S. W. 22, 129 Mo. App. 413 ; Lange v. Missouri Pac. Ry. Co., 106 S. W. 660, 208 Mo. 458 ; Flaherty v. St. Louis Transit Co., 106 S. W. 15, 207 Mo. 318; Evers v. Wiggins Fer- ry Co., 105 S. W. 306, 127 Mo. App. 236; 'Christianson v. McDermott'S Estate, 100 S. W. 63, 123 Mo. App. 448; Abbitt v. St. Louis Transit Co., 81 S. W. 484, 106 Mo. App. 640; Hunt V. Desloge Consol. Lead Co., 104 Mo. App. 377, .73 S. W. 710; Heagy V. Irondale Lead Co., 101 Mo. App'. 561, 73 S. W. 1006; Chambers v, Chester, 172 Mo. 461, 72 S. W. 904; Liese v./ Meyer, 45 S. W. 282, 143 Mo. 547 ; Hughes v. Chicago & A. R. Co., 127 Mo. 447, 30 S. W. 127; Fugate V. Millar, 109 Mo. 281, 19 S. W. 71 ; Shortel v. City of St. Joseph, 104 Mo. 114, 16 S. W. 397, 24 Am. St Rep. 317; Prewitt v. Martin, 59 xMo. 325; Henschen v. CBannon, 56 Mo. 289; Harrison v. Washington Ma- rine Ins. Co., 43 Mo. 590; Bowring V. Wabash Ry. Co., 90 Mo. App. 324 ; 985 CONSTRUCTION AND OPEEATION §533 Fischer v. Heitzeberg Packing & Pro- vision Co., 77 Mo. App. 108 ; Keen v. Schweigler, 70 Mo. App. 409 ; Voegeli V. Pickel Marble & Granite ■ Co., 56 Mo. App. 678; Heitzig v. Gruner, 13 Mo. App. 580, memorandum ; Singer & Talcott Stone Co. v. Sinclair, 10 Mo. App. 593, memorandum. Mont. Harrington v. Butte, A. & P. Ry. Co., 93 P. 640, 36 Mont. 478; Stephens v. Elliott, 92 P. 45, 36 Mont. 92. Neb. Kocar v. Whelan, 167 N. W. 775, 102 Neb. 503; Morrlssey v. Wharton, 153 N. W. 564, 98 Neb. 544 ; Henry v. City of Lincoln, 151 N. W. 933, 97 Neb. 865; Cunningham v. Modern Brotherhood of America, 148 N. W. 918, 96 Neb. 827; Whitney v. Breeder, 143 N. W. 228, 94 Neb. 305 ; Blakeslee v. Van Der Slice, 142 N. W. 799, 94 Neb. 153 ; Whelan v. Union Pac. R. Co., 136 N. W. 20, 91 Neb. 238; Armstrong v. City of Auburn, 122 N. W. 43, 84 Neb. 842; Ault v. Nebraska Telephone Co., 118 N. W. 73, 82 Neb. 434, 130 Am. St. Rep. 686 ; Neeley v. Trautwein, 113 N. W. 141, 79 Neb. 751; Spelts & Kloster- man v. Ward, 99 N. W. 56, 2 Neb. Unof. 177; Pledger v. Chicago, B. & Q. R. Co., 95 N. W. 1057, 69 Neb. 456; Williams v. Shepherdson, 95 N. W. 827, 4 Neb. Unof. 608 ; Tunnicliffe v. Fox, 94 N. W. 1032, 68 Neb. 811 ; City of South Omaha v. Meyers, 92 N. W. 743, 3 Neb. Unof. 699; Maynard v. Sigman, 91 N. W. 576, 65 Neb. 59.0; Martin v. Connell, 91 N. W. 516, 3 Neb. Unof. 240 ; Hoffine v. Ewlng, 84 N. W. 93, 60 Neb. 729 ; Chicago, R. I. & P. Ry. Co. V. Zernecke, 82 N. W. 26, 59 Neb. 689, 55 L. R. A. 610, af- firmed 22 S. Ct. 229, 183 U. S. 582, 46 li. Ed. 339; Smith v. Meyers, 71 N. W. 1006, 52 Neb. 70 ; St. Paul Fire & Marine Ins. Co. v. Gotthelf, 35 Neb. 351, 53 N. W. 137. Nev. Cutler v. Pittsburg Silver Peak Gold Mining Co., 116 P. 418. 34 Nev. 45; Christensen v. Floriston Pulp & Paper Co., 92 P. 210, 29 Nev. 552. N. H. Tovcn of Monroe v. Con- necticut River Lumber Co., 39 A. 1019, 68 N. H. 89. N. M. Hubert v. American Surety Co. of Nevi' York, 192 P. 487. N. Y. People V. Abraitis, 178 N. T. S. 255, 189 App. Div. 312; Green v. Horn, 151 N. Y. S. 215, 165 App. Div. 743; Lawson v. Wells, Fargo & Co., 113 N. Y. S. 647; McAfee v. Dix, 91 N. Y. S. 464, 101 App. Div. 69; Al- lison V. Long Clove Trap Rock Co., 86 N. Y. S. 833, 92 App. Div. 611; Zimmer v. Third Ave. R. Co-, 55 N. Y. S. 308, 36 App. Div. 265 ; Rosenheimer V. Standard Gaslight Co., 55 N. Y. S. 192, 36 App. Div. 1., N. C. Kirkpatrick v. CrUtchfleld, 100 S. E. 602, 178 N. C. 348; McNeill v. Atlantic Coast Line E. Co., 83 S. E. 704, 167 N. C. 390 ; Bird v. Bell Lum- ber Co., 79 S. E. 448, 163 N. C. 162; Tn re Big Cold Water Creek Drain- age Dist., 78 S. E. 14, 162 N. C. 127 ; Madison County Ry. Co. v. Gahagan, 76 S. B. 696, 161 N. O. 190 ; Aman v. Rowland Lumber Co., 75 S. E. 931, 160 N. C. 369; Wilson v. Atlantic Coast Line R. Co., 55 S. E. 257, 142 N. C. 383; Marcom v. Raleigh & A. Air Line R. Co., 35 S. E. 423, 126 N. C. 200; Crenshaw v. Johnson, 26 S. E. 810, 120 N. C. 270. N. D. Wyldes v. Patterson, 153 N. W. 630, 31 N. D. 282; Cai'penter v. Village of Dickey, 143 N. W. 964, 26 N. D. 176; Gagnier v. City of Far- go, 96 N. W. 841, 12 N. D. 219. Ohio. Smith v. State, 34 Ohio dr. Ct. R. 661. Okl. Chase v. Cable Co., 170 P. 1172; Ponca City Ice Co. v. Robert- son, 169 P. 1111; Missouri, O. & G. Ry. Co. V. Smith, 155 P. 233, 55 Okl. 12.; Weller v. Dusky, 151 P. 606, 51 Okl. 77; Chickasha St. Ry. Co. v. Marshall, 141 P. 1172, 43 Okl. 192; CurUs & Gartside Co. v. Pigg, 134 P 1125, 39 Okl. 3l ; First Nat. Bank V. tngle, 132 P. 895, 37 Okl. 276 ; Gulf, O. & S. F. Ry. Co. V. Taylor, 130 P. 574 37 Okl. 99; Nutt v. State, 128 P. 165, 8 Okl. Cr. 266. Or. Hinkson v. Kansas City Life Ins. Co., 183 P. 24, 93 Or. 473 ; Fos- ter V. University Lumber & Shingle Co., 131 P. 736, 65 Or. 46. Pa. McCormick v. Bickerton, 96 A. 1092, 251 Pa. 466; Swauger v. Peo- ple's Natural Gas Co., 96 A. 712, 251 Pa. 287 ; Watson v. Monongahela Riv- er Consol. Coal & Coke Co., 93 A. 625, 247 Pa. 469; Powell v. S. Morgan 533 INSTRUCTIONS TO JURIES 986 Smith Co., 85 A. 416, 237 Pa. 272; Greenwich Coal & Coke Co. v. Learn, 83 A. 74, 234 Pa. 180 ; Karl v. Juniata County, 56 A. 78, 206 Pa. 633 ; Sharer V. Dobbins, 45 A. 660, 195 Pa. 82; Krause v. Plumb, 45 A. 648, 195 Pa. 6o ; Spring City Brick Co. v. Henry Martin Brick Mach. Mfg. Co., 39 Pa. Super. Ct. 7; Thomas v. Butler, 24 Pa. Super. Ct. 305 ; HaydenviUe Min. & Mfg. Co. V. Steffler, 17 Pa. Super. Ct. 609 ; H. B. Claflln Co. v. Quema, 15 Pa. Super. Ct. 464; Winans v. Bunnell, 13 Pa. Super. Ct. 445. S. C. Bennett v. Southern Ry.- Oarolina Division, 79 S. E. 710, 98 S. C. 42 ; Tucker v. Clinton Cotton Mills, 78 S. B. 890, 95 S. C. 302; McCor- mlck V. Columbia Electric St. Ry., Light & Power Co., 67 S. E. 562, 85 S. C. 455, 21 Ann. Gas. 144; Stono Mines v. Southern States Phosphate & Fertilizer Co., 65 S. E. 6, 83 S. C. 119 ; Horn v. Southern Ry., 58 S. E. 963, 78 S. C. 67; McGhee v. Wells, 35 S. E. 529, 57 S. C. 280, 76 Am. St. Rep. 567; Welch v. Clifton Mfg. Co., 33 S. b; 739, 55 S. C. 568 ; Pick- ens V. South Carolina & G. R. Co., 32 S. E. 567, 54 S. C. 498. Tenn. Bast Tennessee, V. & G. E. Co. V. Humphreys, 12 Lea, 200; Ma- lone V. Searight, 8 Lea, 91. Tex. Hermann v. Bailey (Civ. App.) 174 S. W. 865 ; Missouri, K. & T. Ry. Co. of Texas v. Graham (Civ. App.) 168 S. W. 55 ; Glover v. Hous- ton Belt & Terminal Ry. Co. (Civ. App.) 163 S. W. 1063 ; Missouri, K. & T. Ry. Co. of Texas v. State (Giv. App.) 163 S. W. 338; El Paso Elec- tric Ry. Co. V. Mebus (Civ. App.) 157 S. W. 955 ; Gulf, C. & S. F. Ry. Co. v. Ideus (Civ. App.) 157 S. W. 173; Texas Midland R. R. v. Simmons (Civ. App.) 152 S. W. 1106 ; Texas Cent. R. Co. V. Perry (Civ. App.) 147 S. W. Sm ; Texas Telegraph & Telephone Co. v. Scott, 127 S. W. 587, 60 Tex. Civ. App. 39 ; Atchison, T. & S. P. Ry. v. Seeger, 126 S. W. 1170, 59 Tex. Civ. App. 525 ; Missouri, K. & T. Ry. Co. of Texas V. Snow, 115 S. W. 631, 53 Tex. Civ. App. 184 ; El Paso Electric Ry. Co. v. Kelly (Civ. App.) 109 S. W. 415 ; Gal- veston, H. & N. Ry. Co. V. Cochran, 109 S. W. 261, 49 Tex. Civ. App. 591 ; St. TyQuis Southwestern Ry. Co. of Texas v. Hawkins, 108 S. W. 756, 49 Tex. Civ. App. 545 ; Houston & T. C. R. Co. V. Finn (Civ. App.) 107 S. W. 94, judgment affirmed 109 S. W. 918, 101 Tex. 511 ; Thompson v. Planters' Compress Co., 106 S. W. 470, 48 Tex. Civ. App. 235; Southern Pac. Co. V. Allen, 106 S. W. 441, 48 Tex. Civ. App. 66; Industrial Lumber Co. v. Bivens, 105 S. W. 831, 47 Tex. Cr. R. 396; Chicago, R. I. & P. Ry. Co. v. Burns (Civ. App.) 104 S. W. 1081, judgment affirmed 107 S. W. 49, 101 Tex. 329 ; Missouri, K. & T. Ry. Co. of Texas v. Carter, 104 S. W. 910, 47 Tex. Civ. App. 309 ; City of Austin v. Fprbis (Civ. App.) 99 S. W. 132 ; Kir- by Lumber Co. v. Dickerson, 94 S. W. 153, 42 Tex. Olv. App. 504 ; Galveston, H. & S. A. Ry. Co. V. McAdams, 84 S. W. 1076, 37 Tex. Civ. App. 575; El Paso & N. W. Ry. Go. v. Mc- Comas, 81 S. W. 760, 36 Tex. Civ. App. 170; International & G. N. R. Co. V. Hawes (Civ. App.) 54 S. W. 325; City Railway Co. v. Wiggins (Civ. App.) 52 S. W. 577 ; Houston, E. & W. T. Ry. Co. V. Runnels (Civ. App.) 46 S. W. 394, reversed 47 S. ,W. 971, 92 Tex. 305. trtah. Ryan v. Curlew Irrigation & Reservoir Co., 104 P. 218, 36 Utah, 382; Smith v. San Pedro, L. A. & S. L. R. Co., 100 P. 673, 35 Utah, 390; Rogers v. Rio Grande Western Ry. Co., 90 P. 1075, 32 Utah, 367, 125 Am. St. Rep. 876; Loofborrow v. Utah Light & Ry. Co., 88 P. 19, 31 Utah, 355 ; Morgan v. Mammoth Min. Co., 72 P. 688, 26 Utah, 174 ; Anderson v. Daly Min. Co., 50 P: 815, 16 Utah, 28. Vt. Bonazzi v. Fortney, 110 A. 439, 94 Vt. 263. Va. Pocahontas Consol. Collieries Co. V. Halrston, 83 S. E. 1041, 117 Va. 118 ; Chesapeake & O. Ry. Co. v. Mc- Carthy, 76 S. E. 319, 114 Va. 181; Adamson's Adm'r v. Norfolk & P. Traction Co., 69 S. E. 1055, 111 Va. 556; Truckers' Mfg. & Supply Co. v. White, 60 S. B. 630, 108 Va. 147 ; Vir- ginia Portland Cement Co. v. Lucks' Adm'r, 49 S. E. 577, 103 Va. 427 ; Nor- folk & W. R. Co. V. Cheatwood's Adm'r, 49 S. E. 489, 103 Va. 356; Southern Ry. Co. v. Oliver, 47 S. B. 862, 102 Va. 710; Miller & Meyers v. City of Newport News, 44 S. E. 712, 987 CONSTRUCTION AND OPERATION §533 101 Va. 432; Dingee v. Unrue's Adm'x, 35 S. E. 794, 98 Va. 247; Richmond Traction Co. v. Hildebrand, 34 S. E. 888, 98 Va. 22, 99 Va. 48 ; Kimball v Borden, 34 g. E. 45, 97 Va. 477. Wash. Pierce v. General Fire As- sur. Co., 182 P. 588, 107 Wash. 700; Pierce v. Security Ins. Co., 182 P. 688, 107 Wash. 699; Pierce v. Globe & Rutgers Fire Ins. Co., 182 P. 586 107 Wash. 501 ; State v. Emonds, 182 P. 584, 107 Wash. 688 ; McDorman v. Dunn, 172 P. 244, 101 Wash. 120; Munson v. Johnson, 142 P. 18, 80 Wash. 628; Gosky v. Seattle Taxicab & Transfer Co., 140 P. 342, 79 Wash. 425 ; Alaska S. S. Co. v. Pacific Coast Gypsum Co., 138 P. 875, 78 Wash. 247 ; Murphy v. Chicago, M. & St. P. Ry. Co., 120 P. 525, 66 Wash. 663; Sudden & Christenson v. Morse, 104 P. 645, 55 Wash. 372 ; St. John v. Cas- cade Lumber & Shingle Co., 101 P. 833, 53 Wash. 193; Hoseth v. Pres- ton Mill Co., 96 P. 423, 49 Wash. 682 ; Portland & S. Ry. Co. v. Clarke Coun- ty, 93 P. 1083, 48 Wash. 509; Barclay V. Puget Sound Lumber Co., 93 P. 430, 48 Wash. 241, 16 L. R. A. (N. S.) 140; Wlkstrom v. Preston Mill Co., 93 P. 213, 48 Wash. 164; Starr v. .iEtna Life Ins. Co., 87 P. 1119, 45 Wash. 128 ; Burns v. Woolery, 45 P. 894, 15 Wash. 134. W. Va. Karr v. Baltimore & O. R. Co., 86 S. E. 43, 76 W. Va. 526 ; Rob- erts V. Baltimore & O. R. Co., 78 S. B. 357, 72 W. Va. 370 ; Lay v. Elk Ridge Coal & Coke Co., 61 S. E. 156, 64 W. Va. 288; Styles v. Chesapeake & O. Ry. Co., 59 S. E. 609, 62 W. Va. 650 ; Huffman v. Alderson's Adm'r, 9 W. Va. 616. Wis. Gussart v. Greenleaf Stone Co., 114 N. W. 799, 134 Wis. 418; Mor- rison V. Superior Water, Light & Pow- er Co., 114 N. W. 434, 134 Wis. 167; Kohl V. Bradley, Clark & Co., 110 N. W. 265, 130 Wis. 301; Kiekhoefer v. Hidershide, 89 N. W. 189, 113 Wis. 280; Kenyon v. City of MondoYi, 73 N. W. 314, 98 Wis. 50; Hinkley v. Town of Rosendale, 70 N. W. 158, 95 Wis. 271. Illustrations of instructions lield unobjectionable ^irhen con- sidered as a whole. Where the charge as a whole instructed that plaintiff must make out his case by the greater weight of the evidence, the fact that the charge in some plac- es also required that he prove his case by a clear preponderance of the evi- dence did not render it erroneous, as requiring too high a degree of proof. MuUaly v. Smyth, 79 S. E. 634, 96 S. C. 14. In an action on a note, in- structions that, if the preponderance of the evidence showed that the note had not been paid, plaintiff could re- cover, and that, if it appeared in the same way that payment had been made, the verdict should be for de- fendant, were not improper as plac- ing the burden on plaintiff to show nonpayment, and for failing to in- struct what the jury should do if the evidence were evenly balancedi where other instructions stated that the bur- den was on defendant, and that plain- tiff's possession of the note was prima facie evidence of nonpayment. Mc- Cauley v. Darrow, 91 P. 1059, 36 Mont. 13. Where the court in its charge fully defines to the jury the meaning of the contract, and fully and fairly explains to them the con- tentions of both parties, as embodied in their respective understanding of its contents, the omission to further instruct the jury specially that they must determine what the contract was, its exact terms, the considera- tion, and the respective obligations, liability, and undertakings of each of the parties thereunder, was imma- terial. Schofield V. Little, 58 S. E. 666, 2 Ga. App. 286. In an action to set aside a contract and a transfer of property thereunder alleged to have been obtained from M., a person of unsound mind, by the undue influence of his nieije, a charge that, if the do- nation was unjust or unreasonable, that fact was evidence to be consider- ed on the issues of sanity and undue influence, but that it was not of it- self a cause for revising what had been done, unless it was of such an extent as to convince the jury of the existence of undue influence or of un- sound mind, was not objectionable as allowing the jury, if they thought the transaction unjust or unreasonable, to find from that fact alone, unsound- ness of mind, or undue influence, or \ § 533 INSTHTJCTIONS TO JURIES 9SS toth, where the jury were told in the same charge that one In disposing of his property had a right to disregard all natural ties and all moral obliga- tions and that the right of disposal did not depend upon the condition that the gift be reasonable, and that the transaction in question was one that M. could lawfully enter into if he saw fit, etc., and that the , sole question was whether the gift was really/ his. Curtice v. Dixon, 68 A. 587, 74 N. H. 386. An instruction In a personal injury action that plaintiff could recover reasonable compensa- tion for his fright, shock, suffering, anxiety, nervous prostration, sickness caused by the accident, mental strain and mortification through being re- quired to use crutches or other incon- veniences; and, if plaintiff was per- manently injured, such further com- pensation for pain, etc., as he might be required to endure thereafter, and compensation for his loss of capacity and prospects of life, was not improp- er as authorizing recovery for loss of time or for diminished earning capac- ity, where the court instructed that there being no evidence of the value of plaintiff's loss of time, nor as to how much he could earn before the injury, he could not recover for time lost nor for diminished earning capac- ity ; it appearing from the smallness of the verdict that the jury was not misled. Buxton v. Ainsworth, 116 N. W. 1094, 153 Mich. 315. An instruc- tion on exemplary damages for as- sault, that the jury "should" consider defendant's wealth, and that the dam- ages "should" be proportionate to his ability to respond, is harmless error, where the jury were further instruct- ed that they could not award exem- plary daijiages, unless the acts in question were done maliciously, and that even then the matter of exempla- ry damages was in their discretion, and were told the reason for consid- ering defendant's wealth. Thomas v. Williams, 121 N. W. 148, 139 Wis. 467. The giving of an instruction that the presumption that deceased was exer- cising due care exists in the absence of evidence to the contrary, and, until it is overthrown by a preponderance of the evidence, is harmless, where from the entire charge the jury might have understood that the presumption may counterbalance evidence of con- tributory negligence. Sorensen v. Selden-Breck Const. Co., 154 N. W. 222, 98 Neb. 689. An instructibn that a husband might recover of his wife's estate for work done on her property, if it was done under an Implied con- tract, is cured by a statement that by this was meant, if the work was' done under an understanding between them, that he should be paid therefor, though the exact terms of their agree- ment could not be proved. Westra v. Westra's Estate, 101 Mich. 526, 60 N. W. 55. In an action by a wife for alienation of her husband's affections, where an instruction stated that de- fendant had no right to interfere, and by any chance cut off the possibility of future affection between plaintiff and her husband, the use of the ex- pression "by any chance cut off," in- stead of the expression "cut off any chance," was cured by the rest of the instruction, which clearly indicated its meaning. Claxton t- Pool, 167 S. W. 623, l82 Mo. App. 13. An instruc- tion, under a lease of agricultural lands which required the lessor to maintain the drainage of the lands, that the drainage should be maintain- ed so that the lands would be in the ordinary condition of uplands or flat lands not needing drainage, was not error, where the court also instructed as to the lessee's duty to maintain ditches on the land and to cultivate his crops properly, and denied racov- ery if the jury found negligence by the lessee. Columbia Agricultural Co. V. Seid Pak Sing (C. C. A. Or.) 267 F. 1. Though an instruction in a libel case charging the jury as to the effect of the libelous publication did not clearly show that it was a jury question, whether the article com- plained of was false, the error was cured by another Instruction express- ly stating that truth was a defense. Arizona Pub. Co. v. Harris, 181 P. 373, 20 Ariz. 446. In an action against a livery stable keeper for In- juries to one who had hired a team from him, due to the Insufiiciency of the harness, an instruction that "a livery stable keeper is freed from lia- 989 CONSTRUCTION AND OPERATION §533 bility for an accident by showing that he exercised the usual skill, care, and diligence ordinarily exercised by liv- ery stable keepers," though not en- tirely accurate, the care required of livery stable keepers being that "usu- ally exercised by persons of ordinary prudence in the conduct of such livery stable business," vras not ground for granting plaintiff a new trial, where the court both before and after giving such instruction charged as requested by plaintifC that it was defendant's duty to use reasonable care in the se- lection of a safe harness for plaintifC^s use, and that reasonable care meant that degree of care exercised by an ordinarily careful and prudent person acting in similar relations, and where the instruction complained of began with the words "on the contrary," showing that the judge was merely pointing out that defendant was not a public but a private carrier. Dom- ing V. Johnson, 69 A. 347, 80 Conn. 553. In an action for damages for the willful burning of a house, an instruc- tion that the jury must be satisfied hy the greater weight of the evidence is not erroneous for using the word "satisfied," if tlie whole charge places on the plaintiff only the burden of a showing by a preponderance of the ev- idence. Champion' v. Daniel, 87 S. E. 214, 170 N. C. 331. In an action against a railroad for- injuries to an employe through a defective car step, an instruction that if defendant, through its inspectors and repairers, exercised ordinary care to see that the equipment of the car was in rea- sonably safe condition, "and were not guilty of negligence," the verdict must be for defendant, was not misleading as adding, by the use of the words "and were not guilty of negligence," something to defendant's duty beyond the exercise of ordinary care; the court having clearly defined "negli- gence" qs the failure to use ordinary care. El Paso & S. W. R. Co. v. O'Keefe, 110 S. W. 1002, 50 Tex. Civ. App. 579. In an action for injuries to a servant, defendant cannot complain of an instruction defining contributo- ry negligence as "the want of ordina- ry care on the part of the person in- jured—that is to say, the want of such care as an ordinarily prudent person would have exercised under the same or similar circumstances — which, concurring with the negligence of defendant, if any, proximately caused the injuries," where the court, in another part of the charge, direct- ed the jury to find for defendant if they believed from the evidence that plaintiff was guilty of negligence which caused or contributed to his in- juries. Galveston, H. & S. A. Ry. Co. V. Worth, 116 S. W. 365, 53 Tex. Cr. R. 851. An instruction using the term "due care" in connection with the exercise thereof by the pergon in- jured was not erroneous because it did not define the term, or state what measure of care the law required of the person injured, or that the care required of him must be continually exercised up to the time of his injury, where by taking the instruction in connection with other instructions given which fully defined negligence and contributory negligence and the character of the care required of the person injured the jury could not have been misled by the instruction complained of. Brinkman v. Pachol- ke, 84 N. B. 762, 41 Ind. App. 662. Where the court had previously charged that a person would not be liable unless his negligence was the proximate cause of the injury, an in- struction that, if negligence of defend- ant's agent caused the injury, the principal would be liable, was not er- roneous for failure to charge that such liability would occur only for in- juries which were proximately caused by the agent's negligence. Rochester V. Bull, 58 S. E. 766, 78 S. O, 249. Where, in an action for repairs to an automobile, the question of defend- ant's ratification of the work was oth- erwise fully explained, an instruction, that if the charge was reasonable and authority for the' repairs was given, or if authority was not given that the work was ratified by defendant, that he, after knowing it, agreed to it and accepted the property, then he would be liable, was not error. Bush v. Fourcher, 59 S. B. 459, 3 Ga. App. 43. Where, in an action for the death of a traveler struck by a train at a crossing, the evidence showed that § 534 INSTRUCTIONS TO JURIES 990 § 534. Further discussion of rule — Cure of deficiencies and ob- jectionable matters, not amounting to a positive mis- statement of the law, by other instructions Where an instruction states the law correctly so far as it goes, and is merely insufficient, ambiguqus or uncertain, the defect may the engineer could not see on account of the obstruction of the boiler, an in- struction that, if those in charge of the engine "negligently" failed to keep a lookout, etc., a recovery was authorized, was not erroneous be- cause of the use of the word "negli- gently," when considered in connec- tion with another instruction that those in charge of the train must use ordinary care in discovering whether decedent was ignorant of the ap- proach of the train and vras about to go on the track. Hummer's Ex'x v. Louisville & N. R. Co., 108 S. W. 885, 128 Ky. 486, 32 Ky. Law Rep. 1315. An instruction, in an action against a railroad company for the death of plaintiff's daughter, that, notwith- standing the parent may have been negligent, such fact did not relieve the company from using ordinary care to avoid injuring the child, and that the company was bound to use such care, and that if the child was in a position of danger it must be the greatest care, and that a failure to exercise such care, where it might reasonably be inferred that an injury would follow as a result of such fail- ure, amounted to wanton and reckless conduct, though in somewhat stronger language than generally used in such connection, was not erroneous when construed in connection with instruc- tions that precaution was a duty only so far as there was reason for appre- hension, and that the exercise of ordi- nary care to prevent injury arose on- ly after the company became aware of the child's danger. Anderson v. Great Northern Ry. Co., 99 P. 91, 15 Idaho, 513. Where the court charged that use of 'a highway by the public must have been adverse, continuous, uninterrupted, and under a claim of right for the necessary period In or- der to make it a public highway, an- other instruction that 20 years' user of a road by the public as a highway under claim of right creates a high- way by prescription was not objec- tionable for failure to require that the use must have been continuous and uninterrupted. Road Dist. No. 1 V. Beebe, 88 N. E. 131, 231 111. 147. Instructions, in an action for injuries ' to a bicyclist in a collision with an automobile, that if defendant was on the left-hand side of the street when the collision occurred, he failed to perform a duty which he owed by statute to plaintiff, and should be found negligent, unless he was coming from an intersecting street, and had not had time to get to the right-hand side, and that when a collision occurs, the fact that a person is on the wrong side is prima fade evidence of negli- gence, are not open to the criticism that they stated that one may not lawfully drive upon the left-hand side of the road, where the court had pre- viously instructed that the law did not require a person to drive on his right side, but did require him to turn to his right when meeting another, and since such instructions were ex- pressly confined to the position of de- fendant at the time of the collision. Irwin V. Judge, 71 A. 572, 81 Conn. 492. Where, in an action for injuries to a traveler by an automobile, the court instructed as to the rights of the parties on the highway, and as to the degree of care required of de- fendant in running his automobile, and charged that defendant had the right to operate his automobile, and was hound only to use ordinary care to prevent injury to others, an in- struction that the running of the au- tomobile on the highway was not of itself negligence, but that defendant was bound to use reasonable care so as not to injure plaintiff, was not ob- jectionable as singling plaintiff out as an object of special care, but applied the rule previously announced to the facts. Brks v. Ewers (Iowa) 119 N. W. 603. 991 CONSTRUCTION AND OPERATION §534 be cured by other instructions upon the same subject embraced in- the charge,^" and it is further true that, as a general rule, errors 2 Ala. Langston v. State, 75 So. 715, 16 Ala. App. 123. Ariz, Southern Pac. Co. v. Hogaa, 108 P. 240, 13 Ariz. 34, 29 L. E. A. (N. S.) 813. Ark. Paxton v. State, 157 S. W. 396, 108 Ark. 316. Cal. People v. priesheimer, 167 P. 521, 176 Cal. 44; People v. Wong Hing, 151 P. 1159, 28 Cal. App. 230; People V. Dunlop, 150 P. 389, 27 Cal. App. 460 ; People v. Senegram, 149 P. 786, 27 Cal. App. 301 ; People v. Har- ris, 145 P. 520, 169 Cal. 53; People V. Bowman, 142 P. 495, 24 Cal. App. 781 ; People v. LiUard, 123 P. 221, 18 Cal. App. 343 ; People v. Richardson, 120 P. 20, 161 Cal. 552; Big Three Min. & MiU. Co. v. Hamilton, 107 P. 301, 157 Cal. 130, 137 Am. St. Rep. 118; People v. Del Cerro, 100 P. 887, 9 Cal. App. 764. Colo. - Pouppirt V. Greenwood, 110 P. 195, 48 Colo. 405; Gill v. Schneider, 110 P. 62, 48 Colo. 382 ; Stratton Crip- ple Creek Mining & Development Co. V. Mllson, 94 P. 303, 42 Colo. 498. Conn. Worden v. Gore-Meehan Co., 78 A. 422, 83 Conn. 642; Bogud- sky V. Backes, 76 A. 540, 83 Conn. 208 ; State v. Campbell, 74 A. 927, 82 Conn. 671, 135 Am, St. Rep. 293, 18 Ann. Cas. 236. D, C, Robinson v. United States, 42 App. D. C. 186 ; Woodward v. Unit- ed States, 38 App. D. C. 323. Ga, Thomas v. State, 91 S. E. 109, 146 Ga. 346 ; Clonts v. State, 90 S. E. 373, 18 Ga. App. 707 ; Green v. State, 90 S. B. 284, 18 Ga. App. 677; Tift v. State, 88 S. E. 41, 17 Ga. App. 663; Williams v. State, 85 S. E. 973, 16 Ga. App. 697; Nunij v. State, 85 S. E. 346, 143 Ga. 451 ; Short v. State, 80 S. B. 8, 140 Ga. 780 ; McGovem v. State, 74 S. B. 1101, 11 Ga. App. 267 ; Leon- ard V. State, 66 S. B. 251, 133 Ga. 435; Atlantic Coast Line R. Co. v. Jones, 63 S. E. 834, 132 Ga. 189; Wholesale Mercantile Co. v. Jackson, 59 ,S. E. 106, 2 Ga. App. 776. Ill, Eiist St. Louis & S. Ry. Co. v. Zink, 82 N. B. 283, 229 111. 180: Hoge V. People, 117 111. 35, 6 N. B. 796; Guminski v. Armour & Co., 156 111. App, 503; Etnyre v. Artz, 153 111. App. 490; G'orey v. Illinois Cent. R. Co., 153 111. App. 17; Colono v. Con- solidated Coal Co., 147 111. App. 327 ; Gardner v. Ben Steele Weigher Mfg. Co., 142 111. App. 348. lud. Flatter v. State, 107 N. E. 9, 182 Ind. 514 ; Cleveland, C, C. & St. L. Ry. Co. V. Lynn, 95 N. B. 577, 177 Ind. 311 ; Smurr v. State, 88 Ind. 504. Iowa, McSpadden v. Axmear, 181 N. W. 4; State v. Harrison, 149 N. W. 452, 167 Iowa, 334; State v. Pier- not, 149 N. W. 446, 167 Iowa, 353; State V. Butler, 138 N. W. 383, 157 Iowa, 163 ; State v. Dean, 126 N. W. 692, 148 Iowa, 566 ; Marcus v. Omaha & C. B. Ry, & Bridge Co., l20 N. W. 469, 142 Iowa, 84; McDivitt v. D6S Moines City Ry. Co., 118 N. W. 459, 141 Iowa, 689. Kan. Every v. Rains, 115 P. 114, 84 Kan. 560, 50 L, R. A. (N. S.) 889. Ky, McGehee v. Commonwealth, 205 S. W. 577, 181 Ky. 422. Md, Bannon v. Warfleld, 42 Md. 22. Micb. People v. Schelske, 153 N. W. 781, 187 Mich. 497; People v. Ro- gulski, 148 N. W. 189, 181 Mich. 481 ; Borkowski v. American Radiator Co., 130 N. W. 640, 165 Mich. 266; Kryszke V. Kamin, 128 N. W. 190, 163 Mich. 290; Smith v. Hubbell, 114 N. W. 865, 151 Mich. 59. Minn, Johnson v. McLeod, 127 N. W. 497, 111 Minn. 479, rehearing de- nied 127 N. W. 1120, 111 Minn. 479; Christiansen v. Chicago, M. & St. P. Ry. Co., 120 N. W. 300, 107 Minn. 341. Miss, Cumberland Telephone & Telegraph Co. v. Jackson, 48 So. 614, 95 Miss. 79; Mississippi Cent. R. Co. V, Magee, 46 So. 716, 93 Miss. 196. Mo. State v. Walls, 170 S. W. 1112, 262 Mo. 105; State v. Smith, 157 S. W. 319, 250 Mo. 350; Over- street V. Street, 136 S. W. 727, 154 Mo. App. 546; Tewksbury v. Metro- politan St. Ry. Co., 134 S. W. 682, 153 Mo. App. 500; Leach v. St. Louis & S. F. R. Co., 118 S. W. 510, 137 Mo. App. 300; State v. Gregory, 30 Mo. App. 582. Mont. Surman v. Cruse, 187 P. § 534 INSTEUCTIONS TO JUEIES 992 in instructions, not amounting to positive misstatements of the 890, 57 Mont. 253; Leonard v. City of Butte, 65 P. 425, 25 Mont. 410. Neb. Parker v. State, 175 N. W. 677, 104 Neb. 12; Francis v. State, 175 N. W. 675, 104 Neb. 5 ; Bailey v. Kling, 130 N. W. 439, 88 NelD. 699. Nev. Cutler v. Pittsburg Silver Peak Gold Mining Co., 116 P. 418, 34 Nev. 45. N. J. State V. Venzio, 87 A. 126, 84 N. J. Law, 418; Corkran v. Taylor, 71 A. 124, 77 N. J. Law, 195. N. M. State V. EUison, 144 P. 10, 19 N. M. 428. N. Y. People V. Smith, 114 N. E. 50, 219 N. T. 222, affirming judgment 159 N. Y. S. 1073, 172 App. Div. 826; People V. Brown, 96 N. E. 367, 203 N. ■ T. 44, Ann. Cas. 1913A, 732 ; Kelleher V. Interurban St. Ry. Co. (Sup.) 102 N. T. S. 466. N. D. Zilke V. Johnson, 132 N. W. 640, 22 N. D. 75, Ann. Gas. 1913E, 1005; Boos v. Mtna Ins. Co., 132 N. W. 222, 22 N. D. 11; State v. Winney, / 128 N. W. 680, 21 N. D. 72. Ohio. Cincinnati Gas & Electric Co. V. Coffelder, 31 Ohio Cir. Ct. E. 26 ; New York, 0. & St. L. Ey. Co. v. Eoe, 25 Ohio Cir. Ot. E. 628. Okl. Chicago, R. I. &'P. Ry. Co. V. Owens, 186 P. 1092, 78 Okl. 50, cer- tiorari denied 40 S. Ct. 485, 253 U. S. 489, 64 L. Ed. 1027 ; Chicago, E. I. & P. Ey. Co. V. Johnson, 107 P. 662, 25 Okl. 760, 27 L. E. A. (N. S.) 879. Op. Blue V. Portland Ry., Light & > Power Co., 117 P. 1094, 60 Or. 122. Pa. Traliier v. McGarrity, 40 Pa. Super. Ct. 57. R. I. Cardarelli' v. Providence Journal Co., 80 A. 583, 33 R. I. 268. S. C. State V. Martin, 98 S. E. 127, 111 S. O. 352; State v. Milam, 70 S. B. 447, 88 S. 0. 127; Martin v. Colum- bia Electric St. Ry., Light & Power Co., 66 S. E. 993, 84 S. C. 568 ; Lyles V. Western Union Telegraph Co., 65 S. E. 832, 84 S. O. 1, 137 Am. St. Rep. 829. Teun. Fisher v. Travelers' Ins. Co., 138 S. W. 316, 124 Tenn. 450, Ann. Cas. 1912D, 1246. Tex. Alexander v. State, 204 S. W. 644, 84 Tex. Cr. R. 75 ; Wood v. State, 189 S. W. 474, 80 Tex. Cr. E. 398; Coker v. State, 160 S. W. 366, 71 Tex. Cr. R. 504 ; Kirksey v. State, 135 S. W. 577, 61 Tex. Cr. R. 641; Jordan v. State, 131 S. W. 539, 60 Tex. Cr. R. 178 ; Missouri, K. & T. Ry. Co. of Texas v. Stone, 125 S. W. 587, 58 Tex. Civ. App. 480; St. Louis ^& S. F. E. Co. V. Franklin, 123 S. W. 1150, 58 Tex. Civ. App. 41; James v. State, 123 S. W. 145, 57 Tex. Cr. E. 342; Montgomery v. State, 116 S. W. 1160, 55 Tex. Cr. E. 502 ; San Antonio Light Pub. Co. V. Lewy, 113 S. W. 574, 52 Tex. Civ. App. 22'; Texas & P. Ey. Co; v. Boleman (Civ. App.) 112 S. W. 805; Consolidated Kansas City Smelt- ing & Eeflning Co. v. Binkley, 99 S. W. 181, 45 Tex. Civ. App. 100; Gal- veston, H. & S. A, Ey. Co. v. Cherry, 98 S. W. 898, 44 Tex. Civ. App. 344; Brewin v. State, 92 S. W. 420, 49 Tex. Cr. E. 296 ; Monticue v. State, 51 S. W. 236, 40 Tex. Or. R. 528. Utah. O'Neill v. San Pedro, L. A. & S. L. R. Co., 114 P. 127, 38 Utah, 475 ; Grow v. Utah Light & Ry. Co., 106 P. 514, 37 Utah, 41; Gimnich Furniture Mfg. Co. v. Sorensen, 96 P. 121, 34 Utah", 109. Va. Saunders v. Bank of Mecklen- burg, 71 S. E. 714, 112 Va. 443, Ann. Cas. 1913B, 982; Norfolk & W. By. Co. V. Thomas, 66 S. E. 817, 110 Va. 622. Wash. James v. Pearson, 116 P. 852, 64 Wash. 263 ; Myhra v. Chicago, M. & P. S. Ry. Co., 112 P. 939, 62 Wash. 1; Averbuch v. Great Northern Ey. Co., 104 P. 1103, 55 Wash. 633; Behling v. Seattle Electric Co., 96 P. 954,^ 50 Wash. 150. W. Va. Connolly v. Bollinger, 67 S. E. 71, 67 W. Va. 30, 20 Ann. Cas. 1350. Illustrations of defects in in- structions cured by other instruc- tions. In an action against A. and B., two of several owners of a steam- er, for expenses incurred and serv- ices rendered in the superintendence of the building of the steamer, an in- struction to the jury "that if the plaintiff rendered the services and incurred the expenses in question at the request of A., acting in his owu behalf and representing the defendant 993 CONSTRUCTION AND OPERATION §534 B., and if the plaintiff rendered said services expecting to be paid for them, he would be entitled to recover the value of his services and the ex- penses incurred by him," not given as the whole law of the ease, but to be confadered in connection with the other instructions, which required the jury to determine the relation of the plaintiff to the transaction and to the defendant at the time of bringing the suit is correct Nickerson v. SpindeU, 164 Mass. 25, 41 N. E. 105. Where, in an action for injuries to a passenger, the defense was a release, and the court in a previous instruction had fully charged on the issue of plain- tiff's capacity when she si^ed the set- tlement, an instruction that. If plain- tiff knowingly signed the agreement, but at the time she signed it she gave little attention to its contents, or did not read it, or ask that it be read to her, then she was bound thereby, while an insufficient presentation of the question itself, was not misleading or erroneous when considered with reference to the entire charge. Whit- tlesey V. Burlington, O. R. & N. Ry. Co., 90 N. W. 516, 121 Iowa, 597, re- versed 97 N. W. 66, 121 Iowa, 597. In an action by passenger for inju- ries, an instruction that the burden of proving the carrier's affirmative defense that the injuries were caused by the negligence of another was on carrier was not erroneous as requir- ing carrier to prove such negligence by a preponderance of the evidence, where the court also instructed the jury that throughout plaintiff must prove his case by preponderance of the evidence, and that defendant was not liable unless its negligence was either the sole or contributing cause to the accident Learned v. Peninsula Rapid Transit Co. (Oal. App.) 193 P. 591. Where, in an action for inju- ries to a passenger bound for G. in consequence of his alighting at the intermediate point R., believing that he had reached G., It was undisputed that he alighted at R., and the court charged that if he was negligent in not reboarding the train before it started from R., and such negligence contributed to the Injuries, there could be no recovery, the error In an INBT.TO JUBIBS— 63 instruction that if an ordinarily pru- dent person would have discovered that he "was at G." before alighting, and the passenger attempted to re- board the train under circtmistances constituting contributory negligence, there could be no recovery, etc., aris- ing from the omission of tlie word "not" before "at" in the quoted phrase, was not prejudicial. Mis- souri, K. & T. Ry. Co. of Texas v. Redus, 118 S. W. 208, 55 Tex. Civ. App. 205. In an action for injuries to a passenger by the sudden starting of the car as she was alighting, where the court instructed that It was the duty of the carrier to exerdse the highest care consistent with its duties of conveying passengers to avoid in- juring them, and, on their failure to do so, they would be liable it was not error to instruct that the caririer was required to stop its cars a sufficient time to allow passengers to alight, and to see that they had actually done so. Best v. Columbia Blectilc St. Ry., Light, & Power Co., 67 S. E. 1, 85 S. C. 422. In a death action, tried throughout on the theory that the damages, if any, were such as were suffered by decedent's estate, where there was no testimony as to the existence of any one dependent upon decedent, nor that any one had suffered pecuniary Injury from his death, and the jury were plainly charged that the damages to be awarded were those suffered by the estate, a charge that it was not nec- essary for plaintiff to show the pre- cise money value of decedent's life, or the exact damages suffered by the beneficiaries, to sustain a recovery of substantial damages, was not mis- leading through the use of the word "beneficiaries," though inappropriate, as allowing a recovery by those de- pendent upon decedent who had suf- fered. Phoenix Ry. Co. v. Landis, 108 P. 247, 13 Ariz. 80. An exception to the court's charge on manslaughter as allowing the jury to consider only ' the provocation arising at the time cannot be sustained, where the court further charged that, in determining the adequacy of the provocation, the jury should consider all the evidence in determining the condition of the §534 INSTRUCTIONS TO JDEIES 994 defendant's mind. Jacobs v. State, 213 S. W. 628, 85 Tex. Or. 505. In suit' for false imprisonment against a constable and his sureties, any ambi- guity In instructing that, if he unlaw- fully violated plaintiff's personal lib- erty, the jury must find for plaintiff, because not restricting the sureties^ liability for wrongs committed by the constable In his official capacity, was removed by a subsequent instruction that his sureties would only be liable if he wrongfully restrained plaintiff while acting in his official capacity. Gomez v. Scanlan, 102 P. 12, 155 Cal. 528. An instruction that the jury, in making up its special findings as to the fraud charged to defendants, might "take into consideration the al- legation made in the complaint that there was an agreement" between de- fendants to defraud plaintiff, is not open to objection, where it was evi- dent from the whole instruction that the meaning was that the jury might consider the allegations of the com- plaint in determining in what manner it was charged that such an agree- ment had been made, and not that they tended in any manner to estab- lish the fact of an agreement. Limit- ed Inv. Ass'h V. Glendale Inv. Ass'n, T4 N. W. 633, 99 Wis. 54. In an ac- tion for injury to an employfi a state- ment in a preamble to the submission of the issues that when one becomes a railway employs he can assume that the company will exercise ordinary care to furnish a reasonably safe place to work was not prejudicial er- ror, where the statement appeared in the paragraph containing explanatory abstract principles applicable to mas- ter and servant, and the court charg- ed that plaintiff could not recover unless injured through defendant's negligence In furnishing a defective engine, and where no issue as to de- fendant's duty to furnish a safe place to work was presented by the charge. Atchison, T. & S. F. Ry. Co. v. Mills, 116 S. JV. 852, 53 Tex. Oiv. App. 359. Where, in an action for the death of a servant, the court charged that the way to determine whether a person has been negligent is to compare what he had done or left undone with what would have been done or left undone by a man acting with ordinary pru- dence, and, that if a man falls to act as an ordinarily prudent man would under the same circumstances and conditions there is negligence, there was no reversible error in the court's misuse of the word "could" for "would" in certain other of the in- structions relating to the acts of a reasonably prudent man, etc. Cox v. Wilkeson Coal & Coke Co., 112 P. 231, 61 Wash. 343. Where an in- struction related only to one kind of assumed risk, the ordinary hazards of the service, contention that it ig- nored the question of assumption of risk, based on patent dangers known to plaintiff brakeman, submitted in another instruction given at defend- ant's request, cannot be sustained ; the Instructions not being conflicting, but to be considered in harmony with each other. A. L. Clark Lumber Co. V. Edwards, 216 S. W. 18, 144 Ark. 641. In an action for Injuries to plaintiff by the fall of the roof, where it was claimed that the master had promised to remedy the defect in the roof which caused the Injury, a charge that If such promise was made, and If the danger was not great and constant, and that if a rea- sonably prudent person would have remained in the employ and continued to pass under the roof, such promise could be deemed to have relieved plaintiff from the charge of having as- sumed the risk of employment, was not prejudicial because failing to state the test of negligence to be what a prudent person would have done un- der the same or similar circumstances; there being nothing in the charge neg- ativing that idea, and the matter be- ing correctly expressed in other in- structions, one of which referred di- rectly to plaintiff's contributory neg- ligence. Cotton V. Center Coal Min- ing Co., 123 N. W. 381, 147 Iowa, 427. In an action for Injuries to a servant from the falling of sills of a ear, be- ing repaired while the servant was repairing the floor thereunder by di- rections, where the undisputed evi- dence showed that the servant was under the general direction of the foreman, a charge that the work of taking apart and repairing cars was 995 CONSTRUCTION AND OPERATION §534 done by sundry skilled mechanics and workmen in the master's employ, that all the work was done under the immediate direction of the master or its servants, and that if the master or his servants knew, or in the ex- ercise of ordinary care ought to have known, that the injured servant was In a dangerous place, notice should have been given him, was not errone- ous as placing the duty on every servant to exercise ordinary care in keeping a lookout for him, where the court specifically charged that, if the injury was caused solely or proxi- mately by the negligence of fellow servants, there could be no recovery. Wickham v. Chicago, St. P., M. & O. Ry. Co., 124 N. W. 639, 110 Minn. 74, rehearing denied 124 N. W. 994, 110 Minn. 74. In an action for damages from an alleged nuisance, a charge that, if defendant burned shavings or sawdust from its planing mill in a place where the smoke, cinders, soot, or ashes were blown onto plaintifE's house, so as to reasonably annoy him and his family and disturb them in the peaceful use of the house, plain- tiff could recover, if objectionable for uncertainty as using the words "rea- sonably annoy," Instead of the expres- sion "necessarily and materially an- noy," was cured by a charge that if the acts complained of were such as "to occasion no unnecessary damage to plaintiff," defendant would not be liable. Junction City Lumber Co. v. Sharp, 123 S. W. 370, 92 Ark. 538. If an instruction, to the effect that Iiersons who desire to cross a rail- road track at a point where a highway crosses the same have a right to do so and are only required to use ordi- nary care in so doing, was too broad in that it failed to state that a rail- road had priority where it had given notice of its intention to use a cross- ing even over a traveler who has used ordinary care, it was harmless, where the jury in a prior instruction had been fully Informed as to the rail- road's rights. Lake Brie & W. R. Co. v. Howarth (Ind. App.) 124 N. E. 687, rehearing denied 127 N. E. 804. Where the defense in an action for the pi-ice on a contract of sale of min- ing claims is that there were fraud- ulent representations, and the court at the outset of the general charge states that the burden of proving the fraudulent representations is with de- fendant, and defines what wiU con- stitute such a fraud and deceit as will relieve defendant of his obliga- tion, instructions making no refer- ence to fraud must be read In con- nection with the general charge. La Grande Inv. Co. v. Shaw, 72 P. 795, 44 Or. 416, reversed 74 P. 919, 44 Or. 416. In an automobile colli- sion case, an instruction to find for defendant if plaintiff approached an intersecting highway above a certain speed did not erroneously preclude the jury from considering the sur- rounding circumstances, or whether the last clear doctrine applied, or whether plaintiff's negligence proxi- mately caused the collision, where such matters were covered in other portions of the charge. Lawrence v. Goodwill (Cal. App.) 186 P. 781. In an action for destruction of a fish trap by a tug, an instruction as to de- fendant's negligence that "it is charg- ed" "that the boat was being operated outside of and beyond the channel or course in which vessel should be op- erated," while insufficient, when standing alone, for omission to allege "negligently operated," the error was cured by another instruction covering negligent operation. Anderson v. Columbia Contract Co., 184 P. 240, 94 Or. 171, 7 A. L. R. 653, rehearing de- nied 185 P. 231, 94 Or. 171, 7 A. L. R. 653. Where a natural or artificial "stone row" had existed in the bed of the stream on land of defendant for many years, forming, as alleged, a dam which flooded plaintiff's land, it was error to instruct the jury that the "stone row" was not such an ob- struction as would create a right in lapse of time; but where, in direct connection therewith, the court charg- ed that, if the stone row did form a dam and raise the water, the question was whether the dam did not swell back the water still further upon plaintiff's land, the error was imma- terial. Brown v. Bush, 45 Pa. 61. ■§534 INSTRUCTIONS TO JURIES 996 law on a material matter, are susceptible of cure by other instruc- tions.*^ Under the above rule it is not necessary for the court to em- body all the issues or every legal proposition applicable to the case in a single instruction, so long as the instructions as a whole do so.** It is not necessary that an instruction intended to subserve am. S. Gila Valley, G. & N. By. Oo. V. Lyon, 27 S. Ct. 145, 203 U, S. 465, 51 L. Ed. 276, affirming judg- ment 80 P. 337, 9 Ariz. 218; (0. C. A. Minn.) Metropolitan Life Ins. Oo. V. Hartman, 183 F. 975, 106 C. 0. A. 315 ; (0. O. A. N. T.) Morse v. United States, 174 F. 539, 98 C. C. A. 321, 20 Ann. Gas. 938, certiorari denied 30 S. Ct. 406, 215 U. S. 605, 54 L. Ed. 346 ; (0. 0. A. S. C.) Charles v. tFnit- ed States, 213 F. 707, 130 C. C. A. 221, Ann. Cas. 1914D, 1251. Ark. Banks v. State, 202 S. W. 43, 133 Ark. 169; Smedley v. State, 197 S. W. 275, 130 Ark. 149 ; Pettus & Bufoi-d V. Kerr, 112 S. W. 886, 87 Ark. 396. Colo. Clarke v. People, 171 P. 69, 64 Colo. 164 ; Denver N. W. & P. Ey. Oo. V. Howe, 112 P. 779, 49 Colo; 256 ; Petterson v. Payne, 95 P. 301, 43 Colo. .184 ; Edwards v. People, 59 P. 56, 26 Colo. 539. Conn.. Stevens v. Smoker, 80 A. 788, 84 Conn. 569. Fla. .Tohnson v. State, 50 So. 529, 58 Pla. 68 ; McDuffee v. State, 46 So. 721, 55 Fla. 125. 111. Burt V. Garden City Sand Co., 86 N. E. 1055, 237 111. 473, affirming judgment 141 111. App. 603; Rich v. Lence, 147 111. App. 110; City of Rock Island v. Larkin, 136 111. App. 579. Ind. T. Harper v. United States, 104 S. W. 673, 7 Ind. T. 437, judgment reversed (0. C. A, Ind. T.) 170 F. 385, 95 C. C. A. 555. Ky. Frye's Ex'r v. Bennett, 225 S. W. 499. 189 Ky. 546; Louisville Ry. Co. V. Knocke's Adm'r, 117 S. W. 271. Miss. Hitt V. Terry, 46 So. 829, 92 Miss. 671. Mo. Pearman v. Farmers' Mut. Fire Ins. Co. of Charlton County, 214 S. W. 292. Neb. Turley v. State, 104 N. W. 934, 74 Neb. 471. N. Y. People V. Jackson, 89 N. B. 924, 196 N. Y. 337; People v. Fitz- gerald, 88 N. E. 27, 195 N. Y. 153, af- firming judgment 114 N. Y. S. 476, 130 App. Div. 124. N. C. Lovelace v. Graybeal, 93 S. E. 978, 174 N. C. 503 ; State v. Foster, 90 S. E. 785, 172 N. O. 960. N. D. State V. HofC, 150 N. W. 929, 29 N. D. 412. Okl. McDonald v. Miller, 186 P. 957, 77 Okl. 97; Missouri, K. & T. Ry. Co. V. Zuber, 184 P. 452, 76 Okl. 146, 7 A. L. R. 840; Middleton v. State, 183 P. 626, 16 Okl. Or. 320. S. C. State V. Davis, 31 S. m. 62, 53 S. C. 150, 69 Am. St. Rep. 845. Tex. Bassett v. State, 204 S. W. 112, 83 Tex. Cr. R. 479; Tucker v. State (Or. App.) 43 S. W. 106. 2 2 Cal. Anderson v. Seropian, 81 P. 521, 147 Cal. 201. Colo. Davis V. Shepherd, 72 P. 57, 31 Colo. 141; Ames v. Patridge, 58 P. 341, 13 Colo. App. 407 ; Hindry v. McPhee, 53 P. 389, 11 Colo. App. 398. Fla. Montgomery v. Knox, 23 Pla. 595, 3 So. 211. Ga. Standard Cotton Mills v. Cheatham, 54 S. E. 650, 125 Ga. 649 ; Atlanta Consol. St. Ry. Co. v. Jones, 42 S. E. 524, 116 Ga. 369 ; Central of Georgia Ry. .Co. v. Grady, 39 S. E. 441, 113 Ga. 1045; Atlanta Ry. & Power Co. v. Walker, 38 S. B. 107, il2 Ga. 725. Idaho. Breshears v. Callender, 131 P. 15, 23 Idaho, 348. m. Mobile & O. R. Co. v. Vallowe, 73 N. E. 416, 214 111. 124;' Catholic Order of Foresters v. Fltz, 54 N. E. 952, 181 111. 206, affirming judgment 81 111. App. 389 ; Chicago & E. I. Ry. Co. V. Hines, 132 111. 161, 23 N. E. 1021, 22 Am. St. Rep. 515; Toledo, P. & W. Ry. Oo. V. Hammett, 115 111. App. 268. reversed 77 N. E. 72, 220 111. 9, 5 Ann. Cas. 73; Chicago & N. W. Ry. Oo. V. Jamleson, 112 111. App. 997 CONSTRUCTION AND OPERATION 534 some particular office, or to declare the law of some particular branch of the case, should have embodied in it every fact or ele- 69 ; Masonic Fraternity Temple Ass'n V. Collins, 110 111. App. 504, judgment affirmed 71 N. E. 396, 210 111. 482; O'Leary v. Zindt, 109 111. App. 309; Montgomery Coal Co. v. Barringer, 109 111. App. 185, reversed 75 N. E. 900, 218 111. 327; Springfield Consol. Ry. Co. V. Pintenney, 101 111. App. 95, judgment affirmed 65 N. E. 442, 200 111. 9 ; McNulta v. Jenkins, 91 111. App. 809. Ind. Indianapolis Traction & Ter- minal Co. V. Smith, 128 N. E. 38; Same v. Howard, Id. 35; Grand Trunk Western Ry. Co. v. Poole, 93 N. B. 26, 175 Ind. 567; Pittsburgh, C, C. & St. L. Ry. Co. v. Higgs, 76 N. E. 299, 165 Ind. 694, 41 L. R. A. (N. S.) 1081 ; Germania Fire Ins. Co. V. Pitcher, 64 N. E. 921, 160 Ind. 392, rehearing .denied 66 N. E. 1003, 160 Ind. 392 ; Pittsburgh, O., C. & St. L. Ry. Co. V. Noftsker, 60 N. B. 372, 26 Ind. App. 614; Maxon V; Clark, 57 N. E. 260, 24 Ind. App. 620; Bowman v. Bowman, 55 N. B. 422, 153 Ind. 498 ; Hamilton v. liOve, 53 N. E. 181, 152 Ind. 641, 71 Am. St. Rep. 384, revers- ing judgment on rehearing 43 N. E. 873; Mendenhall v. Stewart, 47 N. E. 943, 18 Ind. App. 262; Lofland v. Goben, 16 Ind. App. 67, 44 N. E. 553 ; White V. New York, C. & St. L. R. Co., 142 Ind. 648, 42 N. E. 456 ; Craig v. Prazier, 127 Ind. 286, 26 N. E. 842; Cline V. L.indsey, 110 Ind. 337, 11 N. E. 441; Western ■ Union Tel. Co. v. Buskirk, 107 Ind. 549, 8 N. E. 557; Louisville, N. A. & C. Ry. Co. v. Gran- tham, 104 Ind. 353, 4 N. E. 49 ; Wright V. Nipple, 92 Ind. 310; Wallace v. Ransdell, 90 Ind. 173. Iowa. Witt V. Town of Latimer, 117 N. W. 680, 139 Iowa, 273 ; Mitch- ell V. Pinckney, 104 N. W. 286, 127 Iowa, 696 ; Stomme v. Hanf ord Prod- uce Co., 78 N. W. 841, 108 Iowa, 137; De Goey v. Van Wyk, 97 Iowa, 491, 66 N. W. 787; Tobey v. Burlington, O. R. & N. Ry. Co., 94 Iowa, 256, 62 N. W. 761, 33 L. R. A. 496 ; Albertson V. Keokuk & D. M. R. Co., 48 Iowa, 292. Kan. Gillies v. Linscott, 157 P. 423, 98 Kan. 78; Cityiof Atchison v. Acheson, 57 P. 248, 9 Kan. App. 33. Ky. Lexington & Carter Mining Co. v. Welburn, 11 Ky. Law Rep. (ab- stract) 307. ' Minn. Fruit Dispatch Co. v. Mur- ray, 96 N. W. 83, 90 Minn. 286 ; Pe- terson V. Chicago, M. & St. P. Ry. Co., 38 .Minn. 511, 39 N. W. 485. Miss. Clisby v. Mobile & O. R. Co., 29 So. 913, 78 Miss. 937. Mo. Royle Mining Co. v. Fidelity & Casualty Co. of New York, 142 S. W. 438, 161 Mo. App. 185 ; Brown v. Globe Printing Co., 112 S. W. 462, 213 Mo. 611, 127 Am. St Rep. 627; Weston V. Lackawanna Mln. Co., 105 Mo. App. 702, 78 S. W. 1044 ; Mathew V. Wabash R. Co., 78 S. W. 271, 115- Mo. App. 468, affirmed Wabash R. Co. V. Miathew, 26 S. Ct. 752, 199 U. S. 605, 50 L. Ed. 329; Minter v. Brad- street Co., 174 Mo. 444, 73 S. W. 668; Swafford v. Spratt, 67 S. W. 701, 93: Mo. App. 631; Senn v. Southern Ry, Co., 135 Mo. 512, 36 S. W. 367 ; Craw- ford V. Doppier, 120 Mo. 362, 25 S. W. 93 ; Spillane v. Missouri Pac. Ry. Co., Ill Mo. 553, 20 S. W. 293; Harring- ton V. City of Sedalia, 98 Mo. 583, 12 S. W. 342 : 'First Nat. Bank v. Hatch, 98 Mo. 376, 11 S. W. 739; Schroeder V. Michel, 98 Mo. 43, 11 S. W. 314; Dougherty v. Missouri R. Co., 97 Mo. 647, 8 S. W. 900, 11 S. W. 251 ; Par- ton V. McAdoo, 68 Mo. 327; Meyers V. Chicago, R. I. & P. R. Cp., 59 'M». 223 ; PuUerton v. St. Louis, I. M. & S. Ry. Co., 84 Mo. App 498; Sehaaf V. Fries, 77 Mo. App. 346 ; Pray v. Ifnion Casualty & Surety Co., 73 Mo; App. 679 ; Benham v. Taylor, 66 Mo. App. 308 ; Basye v. Kansas City, P. & G. R. Co., 65 Mo. App. 468 ; Shaw v. Missouri & K. Dairy Co., 56 Mo. App. 521 ; Fletcher v. Milbum Mfg. Co., 35 Mo. App. 321; Safety Fund Nat. Bank v. Westlake, 21 Mo. App. 56E>. Mont. Alien v. Bear Creek Coal Co., 115 P. 673, 43 Mont. --269. Neb. City of South Omaha v. BvLThe, 94 N. W. 528, 3 Neb. (Unof.> §534 INSTRUCTIONS TO JURIES 998 ment essential to sustain the cause of action or the prosecution,** and the fact that a charge states, independently of each other, rules which must be considered together in applying them, is not error, if the jury are not misled thereby.** The court may convey one element of a rule of law in one portion of its charge, disassociated from other portions, if the other elements are in fact presented to the jury as necessary to be found by them.*® Thus it is not neces- sary that all exceptions to, or modifications of, a general rule should be stated in connection with such general rule.*® It is sufficient if 314, affirming judgment 91 N. W. 562, 3 Neb. (Unof.) 309. N. C. Crampton v. Ivie, 32 S. E. 968, 124 N. C. 591. Ohio. Ohio & Indiana Torpedo Oo. V. Fishburn, 56 N. E. 457, 61 Ohio St. 608, 76 Am. St. Rep. 437; Price V. Ooblitz, 21 Ohio Cir. Ct. R. 732, 12 O. C. D. 34. Okl. Grant v. Milam, 95 P. 424, 20 Okl. 672. S. C. Humphries v. Union & Glenn Springs R. Co., 65 S. E. 1051, 84 S. C. 202 ; Lowrimore v. Palmer Mfg. Co., 38 S, E. 430, 60 S. C. 153. S. D. Davis v. Holy Terror Min. Co., 107 N. W. 374, 20 S. D. 399 ; Hed- lun V. Holy Terror Min. Co., 92 N. W. 31, 16 S. D. 261. Tex. Texas Cent. R. Co. v. Pow- eU, 86 S. W. 21, 38 Tex. Civ. App. 157; Galveston, H. & S. A. Ry.' Co. v. Renz, 59 S. W. 280, 24 Tex. Civ. App. 335 ; Bomar v. Powers (Civ. App.) 50 S. W. 142> trtah. Cromeenes v. San Pedro, L. A & S. li. R. Co., 109 P. 10, 37 Utah, 475, Ann. Cas. 1912C, 307; McCor- nick V. Queen of Sheba Gold Min. & Mill. Co., 63 P. 820, 23 Utah, 71. Va. City of Richmond v. Wood, 63 S. E. 449, 109 Va. 75. ■Wis. Lathers v. Wyman, 76 Wis. 616, 45 N. W. 669. Wyo. Wallace v. Skinner, 88 P. 221, 15 Wyo. 233. 23 Judy V. Sterrett, 38 N. E. 633, 153 111. 94; Thrav7ley v. State, 55 N. E. 95, 153 Ind. 375. 24 Conn. Stevens v. Kelley, 66 Conn. 570, 34 A. 502. Ga. McCftU V. State, 99 S. B. 471, 23 Ga. App. 770; Nail v. State, 54 S. E. 145, 125 Ga. 234 ; Beaeham v. Ken- nedy, 53 S. E. 589, 125 Ga. 113 ; How- ell V. State, 52 S. E. 649, 124 Ga. 698; Rawlins v. State, 52 S. E. 1, 124 Ga. 31, judgment affirmed 26 S. Ct. 560, 201 U. S. 638, 50 L. Ed. 899, 5 Ann. Cas. 783; Tucker v. Central of Georgia Ry. Co., 50 S. E. 128, 122 Ga. 387 ; Jenkins v. National Union, 45 S. E. 449, 118 Ga. 587; Anderson V. State, 43 S. E. 835, 117 Ga. 255; Hayes v. State, 40 S. E. 13, 114 Ga. 25 ; Tucker v. State, 39 S. B. 926, 114 Ga. 61 ; Lucas v. State, 36 S. E. 87, 110 Ga. 756. 111. Gustafson v. Peterson, 203 111. App. 242. Ind. Harrod v. Bisson, 93 N. E, 1093, 48 Ind. App. 549. Iowa. Deere v. Wolf, 77 Iowa, 115, -41 N. W. 588. Mo. Norton v. Kramer, 79 S. W 699, 180 Mo. 536. Neb. StuU V. StuU, 96 N. W. 196, 1 Neb. (Unof.) 380, 389. 2 5 Buchman v. JefCery, 115 N. W. 372, 135 Wis. 448. 2 6 Stratton v. Central City Horse Ry. Co., 95 111. 25; Kelley v. School Dist. No. 71 of King County, 173 P. 333, 102 Wash. 343 ; State v. Dodds, 46 S. B. 228, 54 W. Va. 289. Contra, Culbertson v. McCullom, 1 Ky. Law Rep. (abstract) 267. Stating only general rule. An instruction may state the general rule applicable to the case, leaving the opposite party to ask for a statement of any exceptions, limitations, or qualifications that may be deemed rel- evant in view of the proof. Terre Haute & I. Ry. Co. v. Williams, 69 111. App. 392, affirmed 50 N. E. 116 172 111. 379, 64 Am. St. Rep. 44. 999 CONSTRUCTION AND OPERATION §534 such exceptions or qualifications are contained in the charge, and there is nothing in the charge so obscure, absurd^ or contradictory as to mislead or confuse the jury.^' Where an instruction as far as it goes states a correct proposi- tion of law, but is defective in failing to qualify or explain the prop- osition it lays down in consonance with the facts of the case, such defect is cured by subsequent instructions containing the required qualifications or exceptions,^* and where one instruction is' aimed to be explanatory of another, the two should be read and consid- ered together.** Ordinarily the omission in an instruction, which does not direct a verdict, of some element it should contain, may be supplied 27 TJ. s. (C. C. A. Ark.) Western Coal & Mining Co. v. Ingraham, 70 F. 219, 17 C. C. A. 71; Cal. People V. Welch, 49 Oal. 174. ni. Schneider v. Manning, 121 111. 376, 12 N. B. 267 ; Ix)dge v. Gatz, 76 111. 272; Durham v. Goodwin, 54 111. 469 ; Van Buskirk v. Day, 32 111. 260. lud. Brown v. Anderson, 90 Ind. 93 Md. Lurssen v: Uoyd, 76 Md. 360, 25 A. 294. Miim. Simpson v. Krumdick, 28 Minn. 352, 10 N. W. 18; Gates v. Man- ny, 14 Minn. 21 (Gil. 13). Miss. Gordon v. Sizer, 39 Miss. 805. Mo. Underwood v. Metropolitan St. Ry. Co., 102 S. W. 1045, 125 Mo. App. 490; Gamache v. Piqnignot, 17 Mo. 310 ; Ostner v. Lynn, 57 Up. App. 187. IT. Y. Hickenbottom v. Delaware, L. & W. B. Co., 122 N. Y. 91, 25 N. F 279 Pa. Chambers v. Bedell, 2 Watts & S. 225, 37 Am. Dec. 508v ,„ ^ ^ S. O. Lynn v. Thomson, 17 S. C- 129 Wasb. Hammock v. City of Taco- ma, 87 P. 924, 44 Wash. 623. 2 8 XT. S. (C. O. A. Ark.) Choctaw, O. & G. B. Co. V. Tennessee, 116 F. 23, 53 C. C. A. 497, affirmed 24 S. Ct. 99 191 U. S. 326, 48 L. m. 201; (C. C. A. Mo.) Chicago, B. I. & P- By- Co. V. Llnney, 59 F. 45, 7 C. C. A. 656 , (G C. A. Ohio) Toledo, St. L. & W. K. Co. Y. Kountz, 168 F. 832, 94 C. C. A. 244. Cal. Boin v. Spreckels Sugar Co., 102 P. 987, 155 Cal. 612. ria. Pensacola Electric Co. v. Bis- sett, 52 So. 367, 59 Fla. 360; Atlantic Coast Line B. Co. v. Dees, 48 So. 28, 56 Fla. 127; Atlantic Coast Line "E. Co. V. Crosby, 43 So. 318, 53 Fla. 400: Ga. Bagwell v. Milam, 71 S."B. 684, 9 Ga. App. 315. 111. Van Cleef v. City of Chicago, 88 N. E. 815, 240 111. 318, 23 L. B. A. (N. S.) 636, 1.S0 Am. St. Rep. 275; Cleveland, C, C. & St. L. By. Co. v. Baddeley, 150 111. 328, 36 N. E. 965; Lake Erie & W. R. Co. v. Morain, 140 111. 117, 29 N. E. 869, affirming 36 111. AppT 632; Chicago, M. & St. P. By. Co. V. Halsey, 31 111. App. 601 ; Tomle V. Hampton, 28 111. App. 142, affirmed 129 111. 379, 21 N. E. 800. Iowa. Eoney v. City of Des Moines, 130 N. W. 396, 150 Iowa, 447 ; Knott V. Dubuque & S. C. By. Co., 84 Iowa, 462, 51 N. W. 57. Mich. Brogetski v. Detroit United By., 131 N. W..810, 166 Mich. 91. Miss. Yazoo & M. V. B. Co. v. Kel- ly, 53 So. 779, 98 Miss. 367. Mo. Neale v. McKinstry, 7 Mo. 128. S. C. Dover v. Lockhart Mills, 68 S. B. 525, 86 S. C. 229; Lamb v. South- ern By. Co., 67 S. B. 958, 86 S. C. 106, 138 Am. St. Bep. 1030. Wasb. Caldwell v. Northern Pac. Ry. Co., 113 P. 1099, 62 Wash. 420; Edwards v. Seattle, R. & S. Ry. Co., 113 P. 563, 62 Wash. 77. 29 Lake Eri« & W. R. Co. v. Douglas (Ind. App.) 125 N. E. 474. §534 INSTRUCTIONS TO JURIES 1000 by other instructions which fully cover the omitted element.'" The omission of certain matters, however,, when taken in connection with emphasis placed upon other matters may be of such a char- acter as to be likely to mislead the jury, although such omission is supplied by other instructions, and in' such a case it will consti- tute ground for reversal.*"- Special charges given at the request of either party are to be construed with the rest of the charge under the above rule^** and it is not error to give an instruction at the request of a party sub- mitting his theory of the case only, if the instructions given on behalf of his adversary' cover every aspect of his case,** and the 30 Ark. A. I(. Clark Lumber Co. v. Johns, 135 S. W. 892, 98 Ark. 211. • Cal. Stein v. United Kailroads of San Francisco, 113 P. 663, 159 Cal. 368; Winslow v. Glendale Light & Power Co., 107 P. 1020, 12 Cal. App. 530. Ga, Southern By. Co. v. Dean, 57 S. E. 702, 128 Ga. 366. III. Moore v. Aurora, E. & C. R. Co., 92 N. E. 573, 246 111. 56; Suehr V. Sanitary Dist. of Chicago, 90 N. B. 197, 242 111. 496 ; East St. Louis & S. Ry. Co. V. Zink, 82 N. E. 283, -229 111. 180 ; Illinois Cent. R. Co. v. Hopkins, 65 N. B. 656, 200 111. 122, affirming judgment 100 111. App. 594; Donk Bros. Coal & Coke Co. v. Peton, 61 N. E. 330, 192 111. 41, aprmiug judgment 95 111. App. 193; Chicago & A. R. Co. V. Johnson, 116 111. 206, 4 N. B. 381; Hackett V. Harmon, 155 111. App. 55; Dukeman v. Cleveland, C, C. & St. L. Ry. Co., 142 111. App. 622, judgment affirmed 86 N. B. 712, 237 111. 104; Southern Ry. Co. v. CuUen, 122 lU. App. 293, judgment affirmed 77 N. B. 470, 2^1 111. 392; City of Highland Park V. Gerkin, 122 111. App. 149; Elgin, A. & S. Traction Co. v. Wil- son, 120 111. App. 371, judgment af- firmed 75 N. B. 436, 217 111. 47. Imd, Chicago & E. R. Co. v. Klra- eofe, 95 N. E. 1117, 48 Ind. App. 407; New V. Jackson, 95 N. E. 328, 50 Ind. App. 120; South Bend Brick Co. v. Goller, 93 N. E. 37, 46 Ind. App. 531 ; Pittsburgh, C, C. & St. L. Ry. Co. v. Wood, 84 N. B, 1009, 4? Ind. App. 1. Ind, T. Waples-Painter Co. v. Bank of Commerce, 97 S. W. 1025, 6 Ind. T. 326. Kan. Lillard v. Chicago, R. I. & P. Ry. Co., 98 P. 213, 79 Kan. 25. Mich. Joslin v. Le Baron, 6 N. W. 214, 44 Mich. 160. Mo. Asbill V. City of Joplin, 124 S. W. 22, 140 Mo. App. 259; Gibler v. Terminal R. Ass'n of St. Louis, 101 S. W. 37, 203 Mo. 208, 11 Ann. Cas. 1194; Deschner v. St. Louis & M. R. B!. Co.» 98 S. W. 737, 200 Mo. 310. Neb. Cornelius v. City Water Co., 120 N. W. 944, 84' Neb. 130; In re Wilson's Estate, 111 N. W. 788, 78 Neb. 758. S. C. Dempsey v. Western Union Telegraph Co., 58 S. E. 9, 77 S. C. 399. Tex. Houston & T. C. R. Co. v. Mayfleld, 124 S. W. 141, 58 Tex. Civ. App. 52; Texas & N. O. B. Co. v. Plummer, 122 S. W. 942, 57 Tex. Civ. App. 563; St. Louis Southwestern Ry. Co. of Texas v. Hawkins, 108 S. W. 736, 49 Tex. Civ. App. 545 ; Chica- go, R. I. & P. Ry. Co. V. Bums (Civ. App.) 104 S. W. 1081, affirmed 107 S. W. 49, 101 Tex. 329. Va. Marbury v. Jones, 71 S. B. 1124, 112 Va. 389. 81 Washington, B. & A. R. Co. v. State, 111 A, 164, 136 Md. 103. 8 2 Galveston, H. & S. A. Ry. Co. v. Berry (Tex. Civ. App.) 105 S. W. 1019. An improper qualification by the court of a requested charge is no ground of reversal. If the benefit of the rule of law claimed in such re- quest is secured to the party making it by another instruction. Metcalf .v. Little Rock St. Ry. Co. (Ark.) 13 S. W. 729; Lamar v. Williams, 39 Miss. 342. 88 Meadows v. Pacific Mut. Life Ins. 1001 CONSTETTCTION AND OPBEATION §535 jury are told that the instructioiis given are those of the court and must all be read together.** § 535. Specific instances of defects, omissions, or objectionable matters cured by other instructions In many jurisdictions the fact that an instruction authorizing a recovery for negligence omits to require the jury to find that the injured person was not guilty of contributory negligence is not error, if the latter question is* properly submitted in other instruc- tions.*'' So error in instructions in negligence cases in failing to limit the liability of the defendant to the duty to use ordinary or reasonable care,*^ or in omitting the element of proxiinate cause^*' may disappear when the other instructions are considered. The above rule has been applied to objections to instructions upon contributory negligence,** to instructions bearing on the cred- Co. of California, 129 Mo. 76, 31 S. W. 578, 50 Am. St. Rep. 427; State ex rel. Robertson v. Hope, 102 Mo. 410, 14 S. W. 985. 84 City of Danville v. Thornton, 66 S. B. 839, 110 Va. 541. S5 Cal. Stephenson v. Southern Pac. Co., 102 Cal. 143, 36 P. 407, af- firming 102 Cal. 143, 34 P. 618. lad. Morgantown Mfg. Co. v. Hicks, 92 N. B. 199, 46 Ind. App. 623. Iowa. Larkln v. Burlington, C. R. & N. Ry. Co., 85 Iowa, 492, 52 N. W. 480. Minn. Holm v. Village of Carver, 55 Minn. 199, 56 N. W. 826. Mo. Johnston v. St. Louis & S. F. R. Co., 130 S. W. 413, 150. Mo. App. 304; Shanahan v. St. Louis Transit Co., 83 S. W. 783, 109 Mo. App. 228; Hughes V. Chicago & A. R. Co., 127 Mo. 447, 30 S. W. 127 ; Dougherty v. Missouri R. Co:, 97 Mo. 647, 8 S. W. 900, 11 S. W. 251. Neb. Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578, 20 N. W. 860, 49 Am. Rep. 724. Tex. Galveston, H. & S. A. Ry. Co. v. Grant 124 S. W. 145, 58 Tex. Civ. App. 181 ; Shippers' Compress & Ware- house Co. V. Davidson, 80 S. W. 1032, 35 Tex. Civ. App. 558 ; Galveston, H. & S. A. Ry. Co. V. Matula, 79 Tex. 577, 15 S. W. 573. TJtali. Olson v. Oregon Short Line R. Co., 68 P. 148, 24 Utah, 460. Wash. Morrison v. Seattle Elec- tric Co., 115 P. 1076, 63 Wash. 531. 88 tr. S. (C. C. A. Mo.) Chicago, R. I. & P. Ry. Co. V. Llnney, 59 P. 45, 7 C. C. A. 656. Cal. Sappenfleld v. Main St. & A. P. R. Co., 91 Cal. 48, 27 P. 590. Ga. Bast Tennessee, V. & G. Ry. Co. V. Daniel, 91 Ga. 768, 18 S. B. 22. m. City of Roodhouse v. Christian, 158 111. 137, 41 N. E. 748. Ind. Pennsylvania Co. v. Ebaugh, 144 Ind. 687, 43 N. B. 936 ; Wabash & W. Ry. Co. V. Morgan, 132 Ind. 430, 32 N. B. 85, affirming 132 Ind. 430, 31 N. E. 661. Iowa. Brooke v. Chicago, R. I. & P. Ry. Co., 81 Iowa, 504, 47 N. W. 74 Tex, Texas & P. Ry. Co. v. Nix (Civ. App.) 23 S. W. 328 ; Galveston, H. & S. A. Ry. Co. v. Davis, 4 Tex. Civ. App. 468, 23 S. W. 301. 87 Cleveland, C, C. & St. L. Ry. Co. V. Monaghan, 140 111. 474, 30 N. E. 869, affirmed 41 111. App. 498; Spick- elmeir v. Hartman (Ind. App.) 123 N. B. 232; Jones v. Chicago & A. R. Co., 28 Mo. App. 28 ; Holt v. School Dlst. NO. 71 of King County, 173 P. 335, 101 Wash. 442. 38 Boa V. San Francisco-Oakland Terminal Rys., 187 P. 2, 182 Cal. 93 ; Williams v. Mt. Vernon Car Mfg. Co., 211 111. App. 68; Rasten v. Calder- wood, 175 N. W. 1007, 145 Minn. 493 ; Hulse V. St. Joseph Jty. Co. (Mo. App.) 214 S. W. 150; Bullock v. Takima Valley Transp. Co., 184 P. 641, 108 Wash. 413. §535 INSTRUCTIONS TO JURIES 1002 ibility of witnesses,** to instructions on the burden of proof or amount of evidence required to find a fact in issue,*" to instruc- tions upon the measure of damages or the amount of recovery,*' 3 9 Griffin V. State, 216 S. W. 34, 141 Ark. 43; St. Louis Southwestern Ry. Co. V. Johnson, 59 Ark. 122, 26 S. W. 593 ; Morehouse v. Remson, 59 Conn. 392, 22 A. 427 ; Roberts v. Morrison, 75 Iowa, 321, 39 N. W. 519 ; State v. Keys, 53 Kan. 674, 37 P. 167. Illustrations of errors not cured liy otber instructions. £}rror in in- structing that where two witnesses directly contradict each other the evi- dence is balanced unless one is cor- roborated, was not rendered harmless by a subsequent instruction that two witnesses did not necessarily out- weigh one, and that the jury should consider all the circumstances sur- rounding each witness in determining his credibility. Sickle v. Wolf, 91 Wis. 396, 64 N. W. 1028. An instruc- tion that the jury should consider "the character of the witness, so far as you know it, as bearing upon the question whether a witness would be truthful and reliable, or not. My ob- servation is that pretty good persons sometimes lie, and that pretty bad I)ersons sometimes tell the truth" — is erroneous, and Is not cured by an- other instruction that nothing is to be found "by conjecture," but that the verdict "must be based upon evi- dence," and facts inferable from the proofs. Johnson v. Superior Rapid Transit Ry. Co., 91 Wis. 233, 64 N. W. 753. 40 U, S. .astna Life Ins. Co. v. Ward, 140 U. S. 76, 11 S. Ct. 720, 35 L. Ed. 371. Ala, Montgomery v. Crossthwalt, 90 Ala. 553, 8 So. 498, 12 L. R. A. 140, 24 Am. St. Rep. 832. Cal. Foley v. Homung, 169 P. 705, 35 Cal. App. 304 ; Beckman v. McKay, 14 Cal. 250. Conn. Appeal of City Bank of New Haven, 54 Conn. 269, 7 A. 548. Ga. Postal Telegraph Cable Co. v. Douglass, 96 Ga. 816, 22 S. E. 930. 111. Holliday v. O'Gara Coal Co., 203 111. App. 89; vSmiley v. Barnes, 196 111. App. 530; HlnchlifC v. Robin- son, 118 111. App. 450. Neb. Nye-Schneider-Fowler Co. v. Chicago & N. W. Ry. Co., 179 N. W. 503. Illustrations of objec.tions cured. A charge that, to sustain a plea of truth in justification of slanderous language, defendant must prove the plaintifC "actually" guilty, while standing alone, was objectionable in that the word "actually" placed too heavy a burden on defendant, yet when taken in connection with other charges, that it was only necessary to sustain the plea by a preponderance of the evidence, was not error. Gil- strap v. Leith, 102 S. B. 169, 24 Ga. App. 720. In an action for death in an accident to which there were no eyewitnesses, an instruction that the law "presumes"" that deceased was ex- ercising due care was not objection- able as shifting on defendant the bur- den of proof as to contributory negli- gence, where the court subsequently and repeatedly charged that the bur- den was at all times on plaintiff to prove that decedent exercised ordi- nary care, In view of the fact that the word "presumption" is frequently used as the equivalent and synonym of the word "inference." Anderson v. Chicago, R. I. & P. Ry. Co. (Iowa) 175 N. W. 583. *i TJ. S. Louisville, E. & St. L. R. Co. V. Clarke, 152 U. S. 230, 14 S. Ct. 579, 38 r. Ed. 422. Ga. City of Atlanta v. Whitley, 101 S. E. 2, 24 Ga. App. 411. ni. McFarlane v. Chicago City Ry. Co.. 123 N. E. 638, 288 111. 476, af- firming judgment 212 111. App. 664; Malott V. Crow, 90 111. App. 628. Ind. Otter Creek Coal Co. v. Arch- er, 115 N. B. 952, 64 Ind. App. 381. Iffwa. Flanagan v. Baltimore & O. R. Co., 83 Iowa, 639, 50 N. W. 60; Davis v. Walter, 70 Iowa, 465, 30 N. W. 804. Micb. Neely v. Detroit Sugar Co., 101 N. W. 664, 1?8 Mich. 469. Mo. Wojclechowski v. Coryell (App.) 217 S. W. 638 ; Buck v.' People's St. Ry. & Electric Light & Power Co., 108 Mo. 179, 18 S. W. 1090; Hulett V. Missouri, K. & T. Ry. Co., 80 Mo. 1003 CONSTRUCTION AND OPERATION § 535 that an instruction does not confine the jury to the evidence in as- sessing the damages,** to instructions given in connection with the submission of special interrogatories,** to objections that instruc- tions given are not applicable to the facts,** that the court mis- stated the evidence or the testimony of a vvritness,*' that a mistake was made in giving a date,*® to the use of the word "plaintiff," in- stead of "defendant," or vice versa,*' that instructions are argu- mentative,** that they devolve upon the jury the duty of determin- ing what the issues in the case are, or of deciding what the ma- terial allegations of the pleadings are,** that they refer the jury to the pleadings to determine their contents or the issue,®" that they use inappropriate phrases or contain improper definitions or fail App. 87; Price v. Barnard, 70 Mo. App. 175. Or. Farmers' & Traders' Nat. Bank V. Wooden, 61 P. 837, 38 Or. 294, affirmed 65 P. 520, 38 Or. 294. TTse of words suggesting bare possibility instead of reasonable certainty. In an action for malprac- tice, an instruction on the question of reasonable certainty of future opera- tions and suffering, while the use of the word "may" might give the jury the meaning of "bare possibility," in- stead of "reasonable certainty," yet where the Instruction refers to such suffering as the jury "believes she will in the future endure," the word "may" was not likely to mislead, and must be considered as harmless, and not warranting reversal. Krinard v. Westerman, 216 S. W. 938, 279 Mo. 680. . , ■*2 Indianapolis Traction & Termmal Co. v. Thornburg (Ind'. App.) 125 N. E 57 ; Terre Haute, I. & E. Traction Co. v. Stevenson (Ind.) 123 N. E. 785, rehearing denied 126 N. E. 3; In- dianapolis Traction & Terminal Co. V. Beckman, 81 N. E. 82, 40 Ind. App. 100 43 McCormaek v. Phillips, 4 Dak. 506, 34 N. W. 39; Chopin v. Badger Paper Co., 83 Wis. 192, 53 N. W. 45^ 44 V. S. (C. 0. A. Tex.) Texas & P. Ry. Co., v. Nolan, 62 F. 552, 11 C. C A 202 'Ark. 'McNeill v. Arnold, 22 Ark. 477 Fla, Keech v. Bnriquez, 28 Fla. 597, 10 So. 91. a* T> ri« » lil. North Chicago St. R. CO. v. Cook, 145 111. 551, 33 N. E. 958. Ind.' Evansville & I. R. Co, v. Dart- ing, 6 Ind. App. 375, 33 N. E. 636. Kan. Burns v. Clark, 185 P. 27, 105 Kan. 454. Mo. Tillery v. Harvey (App.') 214 S. W. 246; Taylor v. Scherpe & Ko- ken Architectural Iron Co., 133 Mo. 349. 34 S. W. 581. Tex. Gulf, C. & S. F. Ry. Co. v. Kelly (Civ. App.) 34 S. W. 140. Vt. Bragg V. Laraway. 65 Vt. 678, 27 A. 492. 45 Foote V. Brown, 70 A. 699, 81 Conn. 218; Wally v. Clark, 106 A. 542, 263 Pa. 322; Stremme v. Dyer, 72 A. 274, 223 Pa. 7; Senft v. Mc- Ilvain, 43 Pa. Super. Ct. 518. 46 Wilsdn v. Chicago Heights Ter- minal Transfer R. Co., 212 111. App. 271. 47 Central of Georgia Ry. Co. v. Hartley (Ga. App.) 103 S. E. 259; Manes v. St. Louis, San Francisco Ry. Co., 220 S. W. 14, 205 Mo. App. 300. 48 McCormlck v. Parriott, 80 P. 1044, 33 Colo. 382. 49 Stringham v. Parker, 159 111. 304, 42 N. E. 794. affirming Stringam v. Same, 56 111. App. 36; Boynton v. Chicago City Ry. Co., 155 111. App. 448 ; Robertson v. Monroe, 7 Ind. App. 470, 33 N. E. 1002 ; Hatfield v. Chica- go, R. I. & P. Ry. Co., 61 Iowa, 434, 16 N. W. 336. 50 Probert v. Anderson, 77 Iowa, 60, 41 N. W. 574; Southern Ry. Co. v. Ganong, 55 So. 355, 99 Miss. 540; Mis- souri, K. & T. Ry. Co. of Texas v. Aycock (Tex. Civ. App.) 135 S. W. 198. § 535 INSTRUCTIONS TO JUEIES 1004- to define certain terms," and that they apparently leave to the jury a question of law."* In criminal cases the above rule has been applied to objections to sufficiency of instructions on the elements of the offense charged,** on the question of the intent of the defendant,®* on self- defense,®® on question of defense of insanity or intoxication,®* ta instructions on the issue of the defense of alibi,®' to instructions criticized as suggesting the interest of defendant on the question of his credibility,®* to instructions on accomplice testimony,®' to instructions on inferences arising from flight and concealment,^" to instructions bearing on the burden of proof,*^ to instructions on the right to convict on circumstantial evidence,*^ on the character 51 U. S. (C. C. A. N. T.) Texas & P. Ry. Co. V. Coutourie, 135 F. 465, 68 C. C. A. 177. Colo. Doherty v. Morris, 17 Colo. 105, 28 P. 85. Ga. Holland v. Durham Coal & Coke Co., 63 S. B. 290, 131 Ga. 715. Iowa. Collier v. McClintlc-Mar- sliall Const. Co., 138 N. W. 522, 157 Iowa, 244; Webber v. Sullivan, 58 Iowa, 260, 12 N. W. 319. Mich. Smith v. Detroit United Ry., 119 N. W. 640, 155 Mich. 466. Minn. Witaker v. Chicago, St. P., M. & O. Ry. Co., 131 N. W. 1061, 115 Minn. 140. Mo. Wamsganz v. Blanke-Wen- neker Candy Co. (App.) 216 S. W. 1025 ; Bond v. Williams (Sup.) 214 S. W. 202 ; Muehlhausen v. St. Louis B. Co., 91 Mo. 332, 2 S. W. 315 ; Waller V. Missouri, K. & T. By. Co., 59 Mo. App. 410. Tex. Magnolia Motor Sales Corp. V. Chaffee (Civ. App.) 192 S. W. 562 ; Friedrich v. Geisler (Civ. App.) 141 S. W. 1079; Fordyce v. Chancy, 2 Tex. Civ. App. 24, 21 S. W. 181. ITtah. Downey v. Gemini Min. Co., 68 P. 414, 24 Utah, 431, 91 Am. St. Rep. 798. S2 Seaboard Air Line Ry. v. Scar- borough, 42 So. 706, 52 Pla. 425. ssAyers v. State, 178 P. 782, 20 Ariz. 189; Zinn v. State, 205 S. W. 704, 135 Ark. 342; People v. Wade- man, 175 P. 791, 38 Cal. App. 116. 01 People V. McKeighan, 171 N. W. 500, 205 Mich. 367 ; State v. Reagan, 217 S. W. 83, 280 Mo. 57. 5s Ark. Mallory v. State, 217 S. W. 482, 141 Ark. 496; Hines v. State, 215 S. W. 735, 140 Ark. 13 ; Branscum v. State, 203 S. W. 13, 134 Ark. 66. Cal. People v. Fowler, 174 P. 892,. 178 Cal. 657. Ga. White V. State, 94 S. E. 222,, 147 Ga. 377 ; Swilling v. State, 90 S.. E. 78, 18 Ga. App. 618 ; Cox v. State,. 88 S. E. 214, 17 Ga. App. 727. Ky. Copley v. Commonwealth, 211 S. W. 558, 184 Ky. 185. S. C. State V. Brown, 101 S. E. 847, 113 S. C. 513; State v. Gandy,. 101 S. E. 644, 113 S. C. 147. Tex. Anderson v. State, 217 S. W. 390, 86 Tex. Or. R. 207; Swilley v. State, 166 S. W. 733, 73 Tex. Cr. R. 619; Young v. State, 135 S. W. 127,. 61 Tex. Or. R. 303. 58 Brown v. State, 96 S. E. 435, 148 Ga. 264. 5 7 McDonald v. State, 94 S. B. 262, 21 Ga. App. 125 ; Horton v. State, 93 S. E. 1012, 21 Ga. App. 120. 5 8 Murphy v. State, 80 So. 636, 119 Miss. 220. 6 Lockhead v. State, 213 S. W. 653, 85 Tex. Cr. R. 459. 60 State V. Ching Lem, 176 P. 590, 91 Or. 611. 81 State V. Tachln, 108 A. 318, 93 N, J. Law, 485, affirming judgment 106 A. 145, 92 N. J. Law, 269; La- grone v. State, 209 S. W. 411, 84^ Tex. Cr. R. 609. 82 State V. Arnett (Mo.) 210 S. W.. 82. 1005 CONSTKUCTION AND OPERATION § 535 of the defendant,** and on the doctrine of reasonable doubt,®* to 03 Commonweialth v. Tenbroeck, 108 A. 635, 265 Pa. 251; Commonwealtli V. Stoner, 108 A. 624, 26S Pa. 139. Illustrations of instructions lield not erroneous. Where the court correctly and properly charges as to the consideration to be given ev- idence of good character, it cannot be •convicted of error in further charg- ing as follows: "This does not mean that because a man has behaved well in a certain particular heretofore, and has there and then ceased to be- have well and has in fact committed the crime charged, it does not mean that, if he is guilty, he shall be ac- . quitted or have any benefit of the fact that he has heretofore behaved well, but it does mean that in deter- mining whether you are satisfied be- yond a reasonable doubt that he is guilty, that he did commit the act, you shall give him the benefit of a full and fair consideration of the evi- dence of good reputation in connec- tion with all the other evidence In the case." Commonwealth v. Stoner, 70 Pa. Super. Ct. 365. Where the trial judge fully and accurately in- structs as to the effect of. good char- acter as a defense, it is not error to add, "but where the jury is satisfied beyond a reasonable doubt under all the evidence that defendant is guilty, evidence of previous good character is not to overcome the conclusion which follows from that view of the case." Commonwealth v. Tenbroeck, 108 A. 635, 265 Pa. 251. 8* Ala. Brown v. State, 74 So. 733, 15 Ala. App. 611. Cal. People V. Hatch, 125 P. 907, 163 Oal. 368; People v. Corey, 97 P. 907, 8 Cal. App. 720 ; People v. Nun- ley, 75 P. 676, 142 Cal. 105 ; Id., 76 P. 45, 142 Cal. 441; People v. Gil- more, 53 P. 806, 121 Cal. xvii; People V. Boss, 46 P. 1059, 115 Oal. 233; People V. Core, 59 Cal. 390. Conn. State v. Bailey, 65 A. 951, 79 Conn. 589. Ga. Langston v. State, 97 S. E. 444, 23 Ga. App. 82; Harrison v. State, 92 S. E. 970, 20 Ga. App. 157; Brooks V. State, 90 S. E. 971, 19 Ga. App. 45; Ponder v. State, 90 S. B. 376, 18 Ga. App. 727 ; Helms v. State, 76 S. E. 353, 138 Ga. 826 ; Dickens v. State, 73 S. E. 826, 137 Ga. 523. Ind. Hinshaw v. State, 124 N. E. 458, 188 Ind. 447; Sherer v. State, 121 N. E. 369, 188 Ind. 14. Iowa. State v. Smith, 99 N. W. 579; State v. Phillips, 92 N. W. 876, 118 Iowa, 660. Kan. State v. Adams, 20 Kan. 311. Ky'. Daniels v. Commonwealth, 205 S. W. 402, 181 Ky. 392 ; Long v. Com- monwealth, 197 S. W. 843, 177 Ky. 391; O'Day v. Commonwealth, 99 S. W. 937, 30 Ky. Law Rep. 848. Micb. People V. Williams, 175 N. W. 187, 208 Mich. 586. Mo. State V. Miles, 98 S. W. 25, 199 Mo. 530. N. J. State V. Kuehnle, 88 A. 1085, 85 N. J. Law, 220, Ann. Cas. 1916A, 69, affirming judgment 85 A. 1014, 84 N. J. Law, 164. N. M. Territory v. Caldwell, 98 P. 167, 14 N. M. 535 ; Faulkner v. Terri- tory, 6 N. M. 464, 30 P. 905. N. C. State v. Fain, 97 S. E. 716, 177 N. C. 120 ; State v. Martin, 92 S. E. 597, 173 N. C. 808. Or. State V. Morris, 163 P. 567, 83 Or. 429. Pa. Commonwealth v. Rusic, 79 A. 140, 229 Pa. 587. Tex. Graham v. State, 163 S. W. 726, 73 Tex. Or. R. 28 ; Harrolson v. State, 113 S. W. 544, 54 Tex. Or. R. 452 ; Stephens v. State, 103 S. W. 904, 51 Tex. Cr. R. 406. Utah. State v. Vacos, 120 P. 497, 40 Utah, 169. Wash. State v. Lance, 162 P. 574, 94 Wash. 484; State v. Shea, 139 P. 203, 78 Wash. 342; State v. Wappen- stein, 121 P. 989, 67 Wash. 502. Wis. Till V. State, 111 N. W. 1109, 132 Wis. 242. Illustrations of defects cured. In a prosecution of a physician for soliciting patients by means of a drummer or solicitor, an instruction that it was not necessary to prove ac- cused guilty by the testimony of wit- nesses who heard him employ a drum- mer or solicitor to solicit patients for him, but that such guilt might be es- tablished by proof of facts and cir- § 535 INSTRUCTIONS TO JDEIE^ lOOG instructions criticized as not confining the jury to the evidence,®* cumstances from which his guilt might reasonably and satisfactorily he implied beyond a reasonable doubt, while not in apt language, was not misleading when taken in connection with instructions that accused was presumed to be innocent, that the pre- sumption obtained through the trial, and that he was not required to pro- duce evidence of his innocence untU every allegation material to the crime charged had been proved beyond a reasonable doubt, and that, before he could be convicted on circumstantial evidence, the testimony should be so strong as to convince the jury of his guilt ito such an extent as to exclude every other reasonable hypothesis, and that, if the evidence in any es- sential point admitted of reasonable doubt, accused should be acquitted. Burrow v. C5ity of Hot Springs, 108 S. W. 823, 85 Ark. 396. An instruc- tion that the term "reasonable doubt" does not mean a "mere possible doubt, a conjectural doubt," nor "a doubt which is merely capricious," when read in connection with a preceding instruction that a reasonable doubt is that state of the case which, after an entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty that defendant committed the offense, was entirely correct. People v. Botkin, 98 P. 861, 9 Cal. App. 244. Where the court had charged that the law pre- sumed every man to be Innocent imtil his guilt was established beyond all doubt, which presumption attaches at every stage of the case and to every fact essential to a conviction, and, again, that if the jury entertained any reasonable doubt on any single fact or element necessary to consti- tute the crime it was their duty to give the defendant the benefit of such doubt, and acquit, defendant was not entitled to object to a further instruc- tion that if the jury entertained a reasonable doubt on any single mate- rial fact, which was inconsistent with defendant's guilt, arising from the ev- idence in the case, it was their duty to acquit, on the ground that such in- struction dealt only with facts incon- sistent with guilt. People^ v. Ways- man, 81 P. 1087, 1 Cal. App. 246. Where the court charged that the law presumes every man innocent until his guilt is established to a moral cer- tainty, and beyond all reasonable doubt, and that such presumption at- taches to every fact essential to a conviction, an instruction that, while every fact essential to prove defend- ant's guilt to a moral certainty must be fully proven, the law permits this to be done by circumstantial evidence, . and where the evidence is circumstan- tial, but proves every fact essential to sustain the hj^jothesis of guilt, and to exclude the hypothesis of inno- cence, and is inconsistent with any other rational conclusion than that of guilt, it is the jury's duty to convict, was not erroneous. People v. Cain, 93 P. 1037, 7 Cal. App. 163. An instruc- tion that an alibi meant that a de- fendant was elsewhere at the time of the crime, and that if there was a reasonable doubt as to whether the two defendants were present the jury should acquit them, but, if one of de- fendants was present and the other not, the defendant not present should be acquitted and the one present should be convicted, was not errone- ous for failing to state the law of reasonable doubt, burden of proof, and the various ingredients of the of- fense, stated in other instructions, the court having charged that no one in- struction contained all the law, but that the instructions taken together should govern the jury. Van Wyk v. People, 99 P. 1009, 45 Colo. 1. Where, in a trial for homicide,' the question of reasonable doubt was fully present- ed to the jury, an instruction that, if defendant inflicted the wound on de- ceased which caused, or contributed to, his death, the state would not be required to show that neither the de- ceased, nor any one in attendance on him, was guilty of negligence in the care of the wound was not objection- os People V. Silver, 122 N. E. 115. 286 111. 496. 1007 CONSTRUCTION AND OPERATION 535 to the omission of particular words, such as "as charged in the able as failing to tell the jury tbat they must find from the testimony, beyond a reasonable doubt, that de- fendant inflicted the wound. State v. Baker, 121 N. W. 1028, 143 Iowa, 224. A conviction of larceny will not be re- versed because the court, in referring to defendant's story, instructed the jury to consider from all the facts whether the defense was probably true, where they were also told that^ defendant is not ' required to prove his innocence, and that if, after con- sideration of all the evidence, there was any reasonable doubt of guilt, he must be acquitted. State v. Wolfley, 89 P. 1046, 75 Kan. 406, 11 L. R. A. (N. S.) 87, 12 Ann. Gas. 412, rehearing denied 93 P. 387, 75 Kan. 406, 11 L. R. A. (N. S.) 87, 12 Ann. Oas. 412. The jury having been instructed that, if on the whole case they had a reasona- ble doubt of defendant's guilt, they should find him not guilty, they could not find him guilty unless they believ- ed the facts therein set forth beyond a reasonable doubt under an Instruc- tion that if at the time defendant kill- ed decedent he believed, and had rea- sonable grounds to believe, that he was in danger of death or great bodily harm, and that it was necessary to kill decedent, then defendant was not guilty on the ground of self-defense, but if the jury believed beyond a rea- sonable doubt that defendant when not in danger began the difficulty, or if the combat was voluntarily engag- ed In by both, then in each event de- fendant could not be acquitted. Ken- nedy V. Commonwealth, 109 S. W. 313, 33 Ky. Law Rep. 83. A charge that suspicious circumstances may come to the point where the jury is satisfied of the existence of a fact, and it may be they would go so far as to satisfy the jury beyond a reasonable doubt of some of the facts claimed to have been proved by such evidence, is not erroneous, particularly where taken with other parts of the charge stat- ing that to prove the existence of a fact by circumstances they must be such as will lead the jury to but one conclusion ; that is, proof of the fact beyond a reasonable doubt. State v. Ready, 72 A. 445, 77 N. J. Law, 329,. judgment reversed 75 A. 564, 78 N. J. Law, 599, 28 L. R. A. (N. S.) 240. An instruction that, when the plea of self-defense is relied on, it must be proved by a preponderance of evi- dence, is not erroneous, because it was not added that defendant was en- titled to every reasonable doubt, where such instruction is afterwards given. State v. Way, 56 S. E. 653, 76 S. C. 91. Where, in a prosecution for homicide, where the trial court re^ peatedly charged that defendant must show by the weight of the evidence ' that he acted in self-defense, and that, if there was a doubt as to the pre- ponderance of the evidence on that is- sue, it should be resolved in favor of defendant, and in one part of the in- struction charged that "the law holds one who admits the killing of another to a very strict account, and it re- quires of him very satisfactory evi- dence that it was necessary, that is, apparently necessary," it was held that the language could only be -un- derstood to mean that accused must show that amount of evidence which would overbalance the state's showing -that it was not self-defense, or raise a doubt in accused's favor, and that the instruction was not erroneous. State v. Hibler, 60 S. B. 438, 79 S. C. 170. An instruction that if the jury believ- ed beyond reasonable doubt that ac- cused intentionally and unlawfully killed decedent, and found that the facts did not establish express malice beyond reasonable doubt, and that the facts established beyond reasonable doubt that the homicide was' not of the grade of manslaughter and was not justified on the ground of self- defense, as manslaughter and self- defense were thereinafter defined, then the facts did not tend to miti- gate or justify the act, and there was nothing to reduce the killing below murder, "as these expressions are us- ed in the above charge on murder in the second degree, and you may find implied malice and that the offense is murder in the second degree," was not erroneous, as infringing the doc- trine of reasonable doubt, when con- § 535 INSTEUCTIONS TO JUEIES 1008 indictment," ^ to the omission of the word "express" before "mal- ice," ^'' to the omission to define "adequate cause," ®* to the fail- ure to define "heat of passion," ®® and to the cure of an improper reference to the indictment.''" An error in a charge for the state on a particular matter, which is merely calculated to mislead or confuse the jury, is cured by full instructions on the subject given for the defendant.'^ It is not necessary for each instruction in a series given in a homicide case to contain the whole law of the case, or to call the attention of the jury to all the contentions, of the respective parties; but it .is sufficient if the instructions, considered as a whole, fully and fairly announce the rules of law applicable to the prosecution and the defense,'* and an instruction, misleading as charging that the plea of insanity must be proven beyond a reasonable doubt, is cured by a further instruction that, if the jury have a reasonable doubt as to any fact necessary to constitute the guilt of defend- ant, they must acquit.'* § 536. Objection that instructions invade province of jury In determining whether instructions trench upon the province of the jury by commenting upon the evidence, or expressing an opinion upon the weight thereof, or impairing the right of the jury to determine the credibility of the witnesses,'* or by the assump- sldered with other instructions dls- held that the charge as a whole was tlngulshing murder in the first and correct, and was not erroneous hft- second degrees, defining implied mal- cause the first part of it did n6t in- Ice and manslaughter, and giving ac- elude the element of reasonable doubt. cused the benefit of any doubt as to Mitchell v. State, 114 S. W. 830, 55 the grade of the offense committed. Tex. Cr. R. 62. Dobbs V. State, 113 S. W. 923, 54 Tex. «o TJzzell v. People, 173 111. App. Cr. R. 550. Where the court charged 257. that If accused killed deceased, but «7 Johnson v. State, 138 S. "W. 1021, at the time or prior thereto, deceased 63 Tex. Cr. R. 50. had said or done anything which «« Hendricks v. State, 154 S. W. aroused accused's anger, etc., so as to 1005, 69 Tex. Cr. R. 209. render his mind incapable of cool re- «» State v. Fox, 207 S. W. 779, 276 flection when he killed' deceased, the Mo. 378. jury should find him guilty of man- to state v. McLaughlin, 50 S. W slaughter, but in another charge stat- 315, 149 Mo. 19. €d that if they had a reasonable doubt 7i Kennard v. State, 28 So. 858, 42 as to whether accused was guilty of Ma. 581 ; State v. Steffens, 89 N ' W first or second degree murder, they 974, 116 Iowa, 227; State v. Lackey, should acquit him of the higher of- 82 P. 527, 72 Kan. 95 ; Rodgers v fense, and if they heUeved that ac- State (Miss.) 21 So. 130. cused was guilty of some grade of cul- 'a People v. Strause, 125 N. E. 339 pable homicide, hut had a reasonable 290 111. 259. ' doubt whether it was murder or man- fs Smith v. Commonwealth, 17 S slaughter, they should only find him W. 868, 13 Ky. Law Rep 612 guilty of the latter offense, it was '*IJ. S. (C. C. A. Ohio) Shea v 1009 CONSTRUCTION AND OPERATION 536 tion of disputed facts,'® the general rule is that the instructions should be considered as a whole, iand that any merely misleading tendencies of one instruction in this regard may be cured by other instructions. If, however, an instruction clearly and unequivocally invades the province of the jury with respect to any matters of fact, the rule supported by the weight of authority is that such an errone- ous instruction cannot be cured by other instructions submitting such questions of fact to the determination of the jury,'* or by United States, 251 F. 440, 163 C. C. A. 458, writ of certiorari denied 39 S. Ct. 132, 248 U. S. 581, 63 L. Ed. 431. Ark. Camp V. State, 215 S. W. 170, 144 Ark. 641. Cal. People v. Haney (App.) 189 P. 338 ; People v. Gibson, 1T8 P. 338, 39 Cal. App. 202. Ga. Towns V. State, 101 S. E. 678, 149 Ga. 613; Washington v. State, 100 S. E. 31, 24 Ga. App. 65; Scoggins V. State, 98 S. B. 240, 23 Ga. App. 366. Micli. Labarge v. Pere Marquette R. Co., 95 N. W. 1073, 134 Mich. 139; Henry v. Henry, 80 N. W. 800, 122 Mich. 6; Whelpley v. Stoughfon, 78 N. W. 137, 119 Mich. 314. Mo. Rice V. Jefferson City Bridge & Transit Co. (Sup.) 216 S. W. 746. N. C. State v. Chambers, 104 S. E. 670, 180 N. C. 705 ; Neal v. Yates, 104 S. E. 537, 180 N. C. 266 ; Cochran V. Smith, 88 S. E. 499, 171 N. O. 369. S. C. Galluchat v. Atlantic Coast Line R. Co., 93 S. E. 241, 108 S. C. 51 ; Williams v. Greenville, S. & A. R. Co., 88 S. E. 131, 103 S. C. 321. ■Wis. Twentieth Century Co. v. Quilling, 117 N. W. 1007, 136 Wis. 481. T5 V. S. CoflBn V. United States, 162 U. S. 664, 16 S. Ct. 943, 40 L. Ed. 1109. Ala. Birmingham Ry., Light & Power Co. v. Moore, 50 So. 115, 163 Ala. 43. Ark. Bowden v. Dennis, 217 S. W. 798, 144 Ark. 642 ; Burke Const. Co. V. St. Louis & S. F. Ry. Co., 214 S. W. 13, 139 Ark. 199 ; Louisiana & A. Ry. Co. V. Anderson, 213 S. W. 753, 139 Ark. 349. Colo. Pickett v. Handy, 48 P. 820, 9 Colo. App. 357. INST.TO JUBIES— 64 Conn. State V. Perretta, 105 A. 690, 93 Conn. 328. Ga. City of Atlanta v. Young, 93 Ga. 265, 20 S. E. 317. 111. East St. Louis Connecting Ry. Co. V. Enright, 152 111. 246, 38 N. B. 553; Cleveland, C, C. & St. L. Ry. - Co. V. Baddeley, 150 111. 328, 36 N. E. 965; Small v. Roberts, 43 111. App. 577. Ind. Kelley v. Kelley, 8 Ind. App. 606, 34 N. E. 1009; Evansville & T. H. R. Co. V. Talbot, 131 Ind. 221, 29 N. E. 1134; Bishop v. State, 83 Ind. 67. I- Ky. Kentucky Cent. R. Co. v. Mus- selman, 14 Ky. Law Rep. (abstract) 893. Mich. Pierce v. C. H. Bidwell Thresher Co., 122 N. W. 628, 158 Mich. 356 ; Rouse v. Michigan United Rys. Co., 122 N. W. 532, 158 Mich. 109, Minn. Egan v. Faendel, 19 Minn. . 231 (Gil. 191). Mo. Sparks v. Harvey (App.) 214 S. W. 249 ; La Riviere v. La Riviere, 97 Mo. 80, 10 S. W. 840 ; Ruth v. Chi- cago, R. I. & P. Ry. Co., 70 Mo. App. 190. N. D. Watson V. Nelson, 172 N. W. 823 Pa. Irvin V. KutrufC, 152 Pa. 609, 25 A. 796, 31 Wkly. Notes Cas. 485. Tex. Ft. Worth & D. C. Ry. Co. V. Morrison (Civ. App.) 129 S. W. 1159; Missouri, K. & T. Ry. Co. of Texas v. Hood, 120 S. W. 236, 55 Tex. Civ. App. 636. VTash. State v. Vane, 178 P. 456, 105 Wash. 421. 7 6 People V. Harvey, 122 N. B. 138, 286 111. 593; Rouden v. Heisler's Es- tate (Mo. App.) 219 S. W. 691; State V. Herbert, 105 A. 796, 92 N. J. Law, §537 INSTRUCTIONS TO JURIES 1010 anything short of an exipress withdrawal of the objectionable in- struction.'" C. Conflicting Instructions and Cure of Positive Error in Instructions by Giving Other Instructions § 537. General rule While the instructions must be considered as a series, and may- supplement each other, each one must state the law correctly as far as it goes, and there should be such harmony between them that the jury will not be misled;'* and where instructions are in ir- reconcilable conflict, or they are so conflicting as to confuse or mislead the jury, the rule requiring them to be read together has no application.'* An instruction stating the law incorrectly is seldom remedied by another correct instruction,*" and the general rule is that an 341 ; G. W. McNear, Inc., v. American & British Mfg. Co., 107 A. 242, 42 K. I. 302. Contra, Harvey v. Epes, 12 Grat. (Va.) 153. ■ See. also, ante, § 31, notes 46. 47. Cases in nrhich assumption of disputed facts held not to Iiave been cured. Whej-e the evidence is conflicting, and the balance doubtful, an instruction, erroneously assuming a fact in issue, is not cured by other instructions vrhich assume that the question is still open. Illinois Cent. R. Co. V. Sanders, 58 111. App. 117. Where instructions assumed that an . alleged settlement, which was the question at issue, was not made, other instructions given, stating, "If the set- tlement had been made," did not cure the error. Bressler v. Schwertferger, 15 111. App. 294. In an action by an employs against a railroad company for injuries alleged to have been sus- tained, in boarding his train, by rea- son of a pile of cinders negligently al- lowed to accumulate near the track, an instruction that, "before plaintiff can recover, it must be shown that the negligence of" defendants "con- cerning the pile of cinders, as alleged, involved him in extra risk, and there- by caused his injuries," is erroneous, because it assumes as a fact that the accumulation of the cinders was neg- ligence, while it is not made so by statute ; and the error is not cured by a subsequent instruction, submitting the question to the jury, along with other questions of fact, in such a man- ner as not to correct the error. Campbell v. Ellsworth (Tex. Sup.) 20 S. W. 120. " Wimberly v. State, 77 S. E. 879, 12 Ga. App. 540. 7 8 Funston v. Hoffman, 83 N. B. 917, 232 111. 360. 7 Ark, Southern Anthracite Coal Co. V. Bowen, 124 S. W. 1048, 93 Ark. 140. Cal. Howard v. Worthingtdn (App.) 195 P. 709. Idaho. Portneuf-Marsh Valley Irr. Co. V. Portneuf Irrigating Co., 114 P. 19, 19 Idaho, 483. 111. Baldwin v. Killian, 63 111. 550. Ky. Lexington & E. Ey. Co. v. Fields, 153 S. W. 43, 152 Ky. 19. Tex. St. Louis ^Southwestern Ry. Co. of Texas v. Green, 138 S. W. 241. 80 Ark. Doyle & Booth v. Kava- naugh, 112 S. "W. 889, 87 Ark. 364. Cal. People v. Neetens (App.) 184 P. 27 ; Eogarty v. Southern Pac. Co., 91 P. 650, 151 Cal. 785. D. C, Baltiinore & O. R. Co. v. Morgan, 35 App. D. C. 195. 111. Ratner v. Chicago City Ry. Co., 84 N. B. 201, 233 111. 169, revers- ing judgment Chicago City Ry. Co. v. 1011 CONSTRUCTION AND OPERATION §537 unambiguous and affirmatively erroneous instruction on a material Ratner, 133 111. App. 628; Sloan v. Cleveland, C, C. & St. L. Ey. Co., 140 111. App. 31. Ind. Chicago & E. E. Co. v. Fretz, 90 N. E. 76, 173 Ind. 519. lud. T. Gulf, C. & S. F. E. Co. v. Warlick, 1 Ind. T. 10, 35 S. W. 235. Iowa. Latta v. Illinois Cent. R. Co., 130 N. W. 1059, 151 Iowa, 244; Parsons v. United States Express Co., 123 N. W. 776, 144 Iowa, 745, 25 L. E. A. (N. S.) 843. Ky. Burton's Adm'r v. Cincinnati, N. O. & T. P. Ey. Co., 113 S. W. 442. Md, Seaboard Air Line Ey. Co. v. Phillips, 70 A. 232, 108 Md. 285; Rosenkovitz v. United Eys. & Electric Co. of Baltimore City, 70 A. 108, 108 Md. 306. Miss. Mahaffey Co. v. Russell & Butler, 54 So. 945, 100 Miss. 122, over- ruling suggestion 54 So. 807, 100 Miss. 122. Mo. Stumpf V. United Eys. Co, of St. Louis (App.) 227 S. W. 852; Mc- Gee V. St. Joseph Ey., Light, Heat & Power Co., 133 S. W. 1194, 153 Mo. App. 492 ; Kirkpatrlck v. Metropoli- tan St. Ey. Co., 109 S. W. 682, 211 Mo. 68, reversing judgment 107 S. W. 1025, 129 Mo. App. 524; Glover v. Atchison, T. & S. F. Ify. Co., 108 S. W. 105, 129 Mo. App. 563; Welch v. Hannibal & St. J. Ey. Co., 20 Mo. App. 477. Neb. McPherson v. Wiswell, 19 Neb. 117, 26 N. W. 916. N, H. Gerry v. Kennett, 78 A. 649, 75 N. H. 564. N. J. State v. Tachin, 108 A. 318, 93 N. J. Law, 485, affirming judgment 106 A. 145, 92 N. J. Law, 269. N. Y. Goodwin v. Burke, 57 Hun, 592, 10 N. Y. S. 628. Op. Dalton v. Kelsey, 114 P. 464, 58 Or. 244. Pa. Arthurs v. Wilson, 40 Pa. Su- per. Ct. 604. S. C. Scarborough v. Woodley, 62 S. E. 405, 81 S. O. 329. Tex. Chicago, E. I. & G. Ey. Co. V. Forrester (Civ. App.) 137 S. W. 162. Va. American Locomotive Co. v. Whitlock, 63 S. E. 991, 109 Va. 238. Wash. Eosin v. Danaher Lumber Co., 115 P. 883, 63 Wash. 430, 40 L. E. A. (N. S.) 913. W. Va. State v. Ringer, 100 S. p. 413, 84 W. Va. 546 ; Cobb v. Dunle- vie, 60 S. B. 384, 63 W. Va. 398. Wis. Carle v. Nelson, 130 N. W. 467, 145 Wis. 593; Driscoll v. AUis- Chalmers Co., 129 N. W. 401, 144 Wis. 451; Guinard v. Knapp, Stout & Co. Company, 90 Wis. 123, 62 N. W. 625, 48 Am. St. Eep. 901. Illustrations of errors not cured by other instructions. Error of an instruction in putting on defendant the burden of proof, before plaintiff had made out a prima facie case of negligence, is not cured by an in- struction that, if certain facts were fo^nd, defendant was not liable. Trotter v. St. Louis & Suburban Ey. Co., 99 S. W. 508, 122 Mo. App. 405. In an action by architects for com- pensation, an erroneous instruction given at the request of plaintiffs that plaintiffs were entitled to recover if they prepared the plans and specifi- cations for defendant, unless it was "distinctly understood and agreed by the plaintiffs" that they should re- ceive no compensation if the cost of the building proved to be more than their estimate, was not cured by an instruction given at the request of defendant that if plaintiffs undertook to prepare plans and specifications for the building to cost not over a certain sum, and that the lowest bid received was for a sum greatly in ex- cess of the estimate, the jury must find for defendant, since the instruc- tions were contradictory, and it could not be said which instruction the jury observed. Williar v. Nagle, 71 A. 427, i09 Md. 75, 16 Ann. Cas. 928. An instruction that a caxTier is re- quired to provide the safest means practicable, the safest means known, in assisting alighting passengers, is not cured by a subsequent instruction that if a carrier failed to provide a safe means of alighting from a train, and plaintiff was injured there- by, to find for plaintiff. Texas & P. Ey. Co. V. Beezley, 120 S. W. 1136,, 56 Tex. Civ. App. 245. In an action for carrying a passenger beyond his desti- 537 INSTRUCTIONS TO JURIES 1012 matter is not cured by a correct instruction on the same point; 81 nation, an erroneous instruction that it was the duty of the railroad com- pany to safely carry him from the starting point and deliver him at his destination, and that a failure to do so would be negligence on their part, was not cured by an instruction prop- erly defining the words "negligence" and "ordinary care," and charging that if the passenger was properly on the train and that the employes of de- fendant negligently, as the term is above defined, carried him past his destination, etc., they should find for plaintiff. Gulf, C. & S. F. Ry. Co. V. Ward, 124 S. W. 130, 58 Tex. Civ. App. 210. In an action for services by a salesman, an instruction that if, at the time when plaintiff was em- ployed and during his employment, the custom existed that salesmen in such business were excused from du- ty while sick and paid their full sala- ries, then such custom was a part of the contract, without instructing on the indispensable elements of no- toriety and ancientness of the cus- tom, was not cured by the giving of another instruction that a custom was not binding which had not been generally acquiesced in for such length of time as to warrant the jury in finding that such custom entered into the minds of the parties at the time of making the agreement. Sweet ' V. Leach, 6 111. App. 212. Where, in an action for injuries to a servant, the only theory on which a recovery could be had was defendant's failure to supply a pin missing from a ma- chine, error in refusing to charge that plaintiff could not recover unless the jury found that the proximate cause was the failure to supply the , pin, and that the accident would not have happened had the pin been in place, was not cured by a subsequent in- struction that the failure to supply the pin must have been the proximate cause of the injury. Ladlew v. Sher- wood Metal Working Co., 109 N. Y. S. 47Y, 125 App. Div. 65. The error in an instruction that an employer in supplying materials for a platform was required to exercise reasonable care to inspect the materials, and that if he was negligent, and dece- dent was injured in consequence thereof, the employer was liable, due to the fact that it ignored evidence that decedent had the exclusive super- vision of the construction of the plat- form, and induced the jury to infer that there was no duty of the em- ployes to inspect the materials, was not cured by an instruction that there could be no recovery if decedent was the foreman directing the details of the work in erecting the platform. Murch Bros. Const. Co. v. Hays, 114 S. W. 697, 88 Ark. 292. Error in an instruction that it is suflScient to charge defendants as partners if it be shown that they were, joint owners is not cured by other Instructions cor- rectly stating the law, and what is necessary to make them liable as partners. Miller v. Vermurie, 7 Wash. 386, 34 P. 1108. In an action against a street railroad, error in an - instruction that defendant was not required to keep its track in a rea- sonably safe condition and was not required to keep the space between the rails filled, was not cured by the statement that the defendant was on- ly required to use ordinary care to keep the space between the rails in a reasonably safe condition, since such statement was merely a contradiction in terms of the first statement, and rendered the instruction inconsistent and misleading. Huff v. St. Joseph Ry., Light, Heat & Power Co., Ill S. W. 1145, 213 Mo. 495. The error in an instruction that a grantee would, un- der specified circumstances, be bound by knowledge of the notary of in- firmities in the deed acquired in tak- ing the acknowledgment, was not cured by a further instruction that the grantee would not be bound by knowledge or conduct of the notary, unless the notary was authorized to act for him, or unless grantee had knowledge of irregularities and ac- cepted the benefit thereof, where there was no evidence that the gran- tee had any actual knowledge of any irregularities or In the acknowledg- ment. Stringfellow v. Braselton, 117 S. W. 204, 54 Tex. Civ. App. 1. 81 Ala. Alabama Consol. Coal & Iron Co. V. Heald, 53 So. 162, 168 ^^^^ CONSTEUCTION AND OPERATION § 537 which does not give the jury clearly to understand that the erro- Ala. 626 ; Alabama City, G. & A. Ry. Co. V. Bates, 46 So. 776, 155 Ala. 347. Ark. Sweet v. McBwen, 215 S. W. 651, 140 Ark. 162; Goodell v. Bluff City Lumber Co., 57 Ark. 208, 21 S. W. 104. Cal. "Watts V. Murphy, 99 P. 1104, 9 Cal. App. 564; Malone v. Sierra Ry. Co. of California, 91 P. 522, 151 Cal. 113; People v. Maughs, 86 P. 187, 149 Cal. 253; People v. West- lake, 57 P. 465, 124 Cal. 452. Colo. Harris v. People, 75 P. 427, 32 Colo. 211. Ga. White v. State, 100 S. B. 9, 24 Ga. App. 122; Beach v. State, 75 S. E. 189, 138 Ga. 265. ni. People V. Emmel, 127 N. B. 53, 292 lU. 477; People v. Dettmer- Ing, 116 N. E. 205, 278 lU. 580 ; Lan- gan V. Chicago City Ry. Co., 145 111. App. 249. Ind. McBntire v. Brown, 28 Ind. 347. Iowa. McDivitt v. Des Moines City Ry. Co., 118 N. W. 459, 141 Iowa, 689. La. State V. Ardoln, 22 So. 620, 49 La. Ann. 1145, 62 Am. St. Rep. 678. Mich. People V. Holmes, 69 N. W. 501, 111 Mich. 364. Miss. Barnes v. State, 79 So. 815, 118 Miss. 621. Mo. Doty V. Quincy, O. & K. C. R. Co., 116 S. W. 1126, 136 V Mo. App. 254 ; McKinnon v. Western Coal & Mining Co., 96 S. W. 485, 120 Mo. App. 148; State v. Tatlow, 136 Mo. 678, 38 S. W. 552; State v. Cable, 117 Mo. 380. 22 S. W. 953; State v. Davies, SO Mo. App. 239. Mont. State v. Oliver, 50 P. 1018, 20 Mont. 318. Neb. Howell V. State, 85 N. W. 289, 61 Neb. 391 ; Thpmpson v. State, 85 N. W. 62, 61 Neb. 210, 87 Am. St. Rep. 453; S weenie v. State, 80 N. W. 815, 59 Neb. 269 ; Bergeron v. State, 74 N. W. 253, 53 Neb. 752 ; Henry v. State, 70 N. W. 924, 51 Neb. 149, 66 Am. St. Rep. 450; Beck v. State, 70 N. W. 498, 51 Neb. 106; Baker v. State, 69 N. W. 749, 50 Neb. 202; School Dist. of Chadron v. Foster, 31 Neb. 501, 48 N. W. 267; McOleneghan V. Omaha & B. V. R. Co., 25 Neb. 523, 41 N. W. 350, 13 Am. St. Rep. 508. N. J. State V. Tachin, 106 A. 145, 92 N. J. Law, 269 ; State v. Clayton, 85 A. 173, 83 N. J. Law, 673. N. Y. Jacobs V. Katz (Sup.) 176 N. Y. S. 831; Sullivan v. Brooklyn Heights R. Co., 102 N. Y. S. 982, 117 App. Div. 784. N. C. State V. Morgan, 48 S. C. 670, 136 N. C. 628. Okl. Davis V. State, 113 P. 220, 4 Okl. Cr. 508. Op. Anderson v. Columbia Con- tract Co.. 185 P. 231, 94 Or. 171, 7 A. L. R. 653, denying rehearing 184 P. 240, 94 Or. 171, 7 A. L. B. 653. Tenm. Louisville & N. R. Co. v. Cheatham, 100 S. W. 902, 118 Tenn. 160. Tex. Patterson v. Williams (Civ. App.) 225 S. W. 89; Galveston, H. & S. A. Ry. Co. V. State (Sup.) 216 S. W. 393. reversing judgment (Civ. App.) 194 S. W. 462, and rehearing denied 218 S. W. 361 ; St. Louis & S. P. R. Co. v. Brosius & Le Compte, 105 S. W. 1131, 47 Tex. Civ. App. 647 ; St. Louis, I. M. & S. By. Co. v. Moon, 103 S. W. 1176, 47 Tex. Civ. App. 209 ; Johnson v. Texas & G. Rv. Co.. 100 S. W. 206. 45 Tex. Civ. App. 146. Va. Neal V. Commonwealth, 98 S. E. 629, 124 Va. 842. Illnstrations of errors not car- ed. An instruction in a murder trial which limits the right of self-defense to actual danger. People v. Scott, 120 N. E. 553, 284 111. 465. An er- roneous charge, that jury should not acquit unless alibi evidence showed that defendant could not have been at place of crime at time of its com- mission, was not cured by further charge that. If such proof failed to satisfy the test given, the jury could not convict for such failure, but only if whole evidence established guilt. People V. Montlake, 172 N. Y. S. 102, 184 App. Div. 578. A charge to con- vict if accused feloniously, willfully, and with malice aforethought, with a deadly weapon, to wit, an ax, did strike at prosecuting witness with in- tent to murder and kill him, being erroneous, was not cured by the giv- ing for accused of a correct charge that before he could be convicted the jury should be satisfied that he not §537 INSTRUCTIONS TO JURIES 1014 neous instruction is intended to be retracted,*^ since, there being in such case a direct conflict in the pronouncements of the court,. only attempted to strike prosecuting witness witli an ax, but that he was also at the time sufficiently near prosecuting witness to enable him to strike him and inflict an injury upon his person, since the two charges were inconsistent. Jones v. State, 116 S. W. 230, 89 Ark. 213, Error in inBtruction as to credi- bility of witnessies. Error in an in- struction which might have misled the jury to believe that court intend- ed to instruct that plaintiff was en- titled to more credit than defendant's witnesses was not cured by other in- structions, laying down the rules as to the credibility of witnesses and leaving jury free to decide. Walsh V. Chicago Rys. Co., 128 N. B. 647, 294 111. 586. The error in an in- struction, authorizing conviction if the jury believed that the evidence of the accomplice tended to show that accused was guilty and that the corroboration of her testimony tend- ed to show the 'crime, was not cured by a special charge that, before the jury could convict, they must believe Ijeyond a reasonable doubt that the testimony of the prosecutrix was true, and that there was credible independent evidence tending to show that accused was guilty. Barrett V. State, 115 S. "W. 118T, 55 Tex. Cr. R. 182. Where court erroneous- ly instructed, "If you should believe that witnesses or a witness has sworn falsely upon some point, then you are not bound to give any credit whatsoever to their testimony, such error was not cured, where the rule was subsequently correctly charged at the request of the defend- ant; the correction not being charg- ed as a substitute for the previous incorrect charge, to which exception was taken. People v. Parsons, 183 N. Y. S. 100, 192 App. Div. 841. Instractions tending to mislead jury to disregard proper testimo- ny. Distinct portions of a charge applied in submitting separate issues, and which would naturally tend to mislead the jury to disregard proper testimony In a case wherein it was especially important that the jury should give proper consideration to all the evidence, must be held to necessitate a new trial, regardless of a subsequent correct instruction as to their duty in determining the weight of evidence and the credibility of witnesses. Steber v. Chicago & N. W. Ry. Co., 120 N. W. 502, 139 Wis. 10. 82 Ark. St. Louis Southwestern Ry. Go. V. Jagerman, 59 Ark. 98, 26 S. W. 591. D. C. Boswell V. District of Co- lumbia, 10 Mackey (21 App. D. C.) 526. Ga. Rowe V. Spencer, 64 S. E. 468, 132 Ga. 426 ; Atlanta & B. A. L. Ry. V. McManus, 58 S. B. 258, 1 Ga. App. 302. ni. Wilbur V. Wilbur, 129 111. 392, 21 N. B. 1076; Counselman v. Collins, 35 111. App. 68 ; Gale v. Rector, 5 111. App. 481. Ind. Abney v. Indiana Union Trac- tion Co., 83 N. E. 387, 41 Ind. App. 53; Hudelson v. State, 94 Ind. 426, 48 Am. Rep. 171 ; Binns v. State, 66 Ind. 428; Toledo, W. & W. Ry. Co. V. Shuckman, 50 Ind. 42. Ky. Clay v. Miller, 3 T. B. Mon. 146. Md. Adams v. Capron, 21 Md. 186, 83 Am. Dec. 566. Mo. Toncrey v. Metropolitan St. Ry. Co., 107 S. W. 1091, 129 Mo. App. 596 ; Hickman v. Griffin, 6 Mo. 37, 34 Am. Dec. 124; McNichols v. Nelson, 45 Mo. App. 446 ; Fink v. -Algermis- sen, 25 Mo. App. 186. Neb. Richardson v. Halstead, 44 Neb. 606, 62 N. W. 1077; First Nat. Bank v. Lowrey, 36 Neb. 290, 54 N. W. 568. ' N. Y. Sinica v. New York Rys. Co., 180 N. Y. S. 377, 190 App. Div. 727. N. C. Wilson v. Atlantic Coast Line R. Co., 55 S. E. 257, 142 N. C. 333. Ohio, Pendleton St. E. Co. v. Stallmann, 22 Ohio St. 1. Tex. Texas Cent. R. Co. v. Waldie (Civ. App.) 101 S. W. 517 ; Missouri, K. & T. Ry. Co. of Texas v. Rodgers, 1015 CONSTRUCTION AND OPERATION 537 it will ordinarily be impossible to say whether the jury has fol- lowed the right or the wrong rule.** Where the instructions of the successful party state an errone- 89 Tex. 675, 36 S. W. 243 ; Arcia v. State, 28 Tex. App. 198, 12 S. W. 599. 'Wash. Peyser v. Western Dry Goods Co., 92 P. 886, 48 Wash. 55; Baxter v. Waite, 2 Wash. T. 228, 6 P. 429. W. Va. McKelvey v. Chesapeake & O. Ry. Co., 35 W. Va. 500, 14 S. E. 261. Wis. Jackman v. Inman, 114 N. W. 489, 134 Wis. 297 ; Imhoff v. Chi- cago & M. Ry. Co., 20 Wis. 344. Instructions erroneous iritliin rule. The error in an instruction in an action on a note, arising from the fact that it required plaintiff to prove that the maker knew the contents of the note at the time he signed it by iis mark, and that he delivered the same for a valuable consideration, •etc., though the law presumes the existence of such facts from the facts proved, is not cured by a charge pred- icating a right of recovery on facts stated in general terms, without in- forming the jury that the law pre- sumes the existence of such facts. Dawson v. Wombles, 100 S. W. 547, 123 Mo. App. 340. 8 3 Ala. Alabama City, G. & A. Ry. Co. V. Bullard, 47 So. 578, 157 Ala. ■618. Ark. St. Louis, I. M. & S. Ry. Co. V. Woods, 131 S. W. 869, 96 Ark. 311, 33 L. E. A. (N. S.) 855; Merchants' Fire Ins. Co. v. McAdams, 115 S. W. 175, 88 Ark. 550. Cal. Fountain v. Connecticut Fire Ins. Co., 112 P. 546, 158 Cal. 760, 139 Am. St. Rep. 214; Rathbun v. White, 107 P. 309, 157 Cal. 248. Ga. Pelham Mfg. Co. v. Powell, 64 S. E. 1116, 6 Ga. App. 308. Ill, Fowler v. Chicago & E. I. R. Co., 85 N. E. 298, 234 111. 619, re- versing judgment Chicago & E. I. R. Co. V. Fowler, 138 111. App. 352; Kath V. East St. Louis & Suburban Ry. Co., 83 N. E. 533, 232 111. 126, 15 L. R. A. (N. S.) 1109; Swiercz Vi Illi- nois Steel Co., 83 N. E. 168, 231 111. 456; Kankakee Stone & Lime Co. v. City of Kankakee, 128 111. 173, 20 N. B. 670 ; Cleveland, C, C. & St. U Ry. Co. V. Dukeman, 134 111. App. 396; Chicago, M. & St. P. Ry. Co. v. Gill, 132 111. App. 310; Chicago, R. I. & P. Ry. Co. V. Turck, 131 111. App. 128; Cleveland, C, C. & St. L. Ry. Co. V. Dukeman, 130 111. App. 105; Belvidere City Ry. Co. v. Bute, 128 111. App. 620; Second Nat. Bank v. Thuet, 124 111. App. 501. Ind. Monongahela River Consol. Coal & Coke Co. v. Hardsaw, 81 N. E. 492, 169 Ind. 147. Iowa. McDlvitt v. Des Moines City Ry. Co., 118 N. W. 459, 141 Iowa, 689. Mo. Gordy v. Manufacturers' Coal & Coke Co., 132 S. W. 21, 151 Mo. App. 455; Butz v. Murch Bros. Const Co., 117 S. W. 635, 137 Mo. App. 222. Mont. Sullivan v. Metropolitan Life Ins. Co., 88 P. 401, 35 Mont. 1. N. y. Blumberg v. Sterling Bronze Co., 107 N. Y. S. 142, 56 Misc. Rep. 477. N. O. Kimbrough v. Hines, 104 S. E. 684, 180 N. C. 274 ; Jones v. Life Ins. Co. of Virginia, 65 S. E. 602, 151 N. C. 54. Pa. Commonwealth v. Ross, 110 A. 327, 266 Pa. 580; Commonwealth V. Divomte, 105 A. 821, 262 Pa. 504. Tex. Petty v. Jordan-Spencer Co. (Civ. App.) 135 S. W. 227. Va. Atlantic Coast Line R. Co. v. Caple's Adm'x, 66 S. E. 855, 110 Va. 514. Wyo. Palmer v. State, 59 P. 793, 9 Wyo. 40, 87 Am. St. Rep. DIO. Instructions on insanity as a defense to accusation of crime. An instruction that defendant must prove that at the time of the killing he was laboring under such defect of reason from diseased mind as not to know the nature and quality of the act is correct, but where it is follow- ed by another, erroneously charging that insanity will only excuse crime where the person was so insane as not to know right from wrong, the two are irreconcilable, and constitute reversible error. Boiling v. State, 54 Ark. 588, 16 S. W. 658. 537 INSTRUCTIONS TO JURIES 1016 ous rule, and those of the defeated party state the rule correctly, the only presumption permissible is that the jury discarded the true rule for the false.** Instructions misleading on a vital issue will not be cured merely by the giving of other correct instruc- tions.*® Affirmative error in an instruction can only be cured by the withdrawal of the instruction by the court in language so explicit as to preclude an inference that the jury may have been influenced by it.*® Under the above rule, the error of an instruction in pre- senting a wrong theory of the entire case is not cured by other instructions announcing the right theory,*'' and an instruction, whether in a civil or criminal case, purporting to state the facts on proof of which the jury may find for one party or the other, but which omits an element essential to such a finding, is not suscepti- ble of cure by any other instructions in the series, or by an instruc- tion given for the other party.** 84 Ross V. Metropolitan St. Ry. Co., 112 S. W. 9, 132 Mo. App. 472. 8 5 Walsh V. Henry, 88 P. 449, 38 Colo. 393 ; RadclifiEe v. HoUyfield, 65 A. 789, 216 Pa. 367. 86 Cleveland, C, O. & St. L. Ry. Co. V. Powers, 88 N. B. 1073, 173 Ind. 105, rehearing denied 89 N. E. 485, 173 Ind. 105; Lake Shore & M. S. Ry. Co. V. Johnson, 88 N. B. 849, 172 Ind. 548, transferred from Appellate Court 84 N. B. 1104; Fuelling v. Fuesse, 87 N. E. 700, 43 Ind. App. 441; Galino v. Fleischmann Realty & Const. Co., 115 N. X. S. 334, 130 App. Div. 605. 87 Flucks V. St. Louis. I. M. & S. Ry. Co., 122 S. W. 348, 143 Mo. App. 17. 88 ni. People V. Israel, 88 N. B. 802, 240 111. 375; Mooney v. City of Chicago, 88 N. E. 194, 239 111. 414; Herdman-Harrison Milling Co. v. Spehr, 145 111. 329, 33 N. B. 944, af- firming 46 111. App. 24; Lake Shore & M. S. Ry. Co. V. Richards (Sup.) 32 N. B. 402 ; Belskis v. Bering Coal Co., 146 111. App. 124 ; Winn v. Walk- er, 145 111. App. 333 ; City of Chicago V. Fields, 139 111. App. 250; Balti- more & O. S. W. Ry. Co. V. Schell, 122 111. App. 346 ; Osner v. Zadek. 120 111. App. 444; Gregg v. People, 98 111. App. 170; Gedney v. Gedney, 61 111. App. 511. Imd. Steele v. Michigan Buggy Co., 95 N. B. 435, 50 Ind. App. 635; Rahke v. State, 81 N. E. 584, 168 Ind. 615. Iowa. Jackson v. Mott, 76 Iowa, 263, 41 N. W. 12. Miss. Harper v. State, 35 So. 572, 83 Miss. 402. Mo. Vaughn v. William P. Davis & Sons (App.) 221 S. W. 782; Low v. Paddock (App.) 220 S. W. 969 ; Yontz V. MeVean, 217 S. W. 1000, 202 Mo. App. 377 ; Montgomery v. Hammond Packing Co. (App.) 217 S. W. 867; Ward v. Stutzman (App.) 212 S. W. 65; Schneider v. Hawks (App.) 211 S. W. 681; Sullivan v. Hannibal & St. J. R. Co., 88 Mo. 169; Hohstadt v. Daggs, 50 Mo. App. 240; Plynn v. Union Bridge Co., 42 Mo. App. 529. Mont. State V. Peterson, 92 P. 302, 36 Mont. 109. Web. Dobson v. State, 85 N. W. 843, 61 Neb. 584. Okl. McCarthy v. State. 119 P. 1020, 6 Okl. Cr. 483; Hinchmanv. State, 119 P. 1022, 6 Okl. Cr. 700. S. C, State V. Johnson, 67 S. E, 453, 85 S. C. 265. lUnstTations of errors not car- ed. In a passenger's action for in- juries while alighting from a street car, it was error to instruct for plain- tiff if the Jury believed that plaintiff, after the car had made a usual stop, got up and was thrown from the plat- form by a sudden forward movement of the car, as such facts did not de- mand the inference that plaintiff's 1017 CONSTRUCTION AND OPHEATION. § 539 An erroneous specific instruction on a controlling point is not cured by the correctness of the general charge.** Error in the last instruction of a series cannot be overcome merely by construing such instruction with the others given,** and ordinarily error in a charge given by the court on its own motion will not be cured by a correct charge on the point involved, given in an isolated in- struction requested by a party .*^ § 538. Limitations of rule The rule that there is reversible error, if a correct and a wrong instruction are given on the same point, does not apply where the instructions, when taken together, as they must be, make the cor- rect rule of law clear,®* and although instructions given are appar- ently conflicting, if from the language used or the relation which the instructions bear to each other it appears that they may be read together as a harmonious whole, and, when so read, are not misleading, any seeming conflict therein is not prejudicial.** If two instructions, each improper in itself, amount to a correct statement of the law when taken together, the error in each will be disre- garded.** § 539. Cure of erroneous instruction by its withdrawal As has already been indicated in the preceding discussion, the action of the court, after calling the attention of the jury thereto, injury was caused by defendant's »» Pittsburgh, C. & St. L. Ky. Co. negligence, and such error was not v. Krouse, 30 Ohio St. 222. cured by an instruction that plaintiff so Ackerman v. Stacey, 143 N. Y. would not be entitled to recover un- g. 227, 157 App. Div. 835. less the injury was caused by defend- ^^ Burns v. Sennett, 99 Gal. 363, ant's negligence. Savannah Electric ^ p q^q. sterling v. Callahan, 94 Co. V. Johnson (Ga. App.) lOa b. lU. ^^^-^ ggg g^ n. W. 495. 798. Where Plf.'^tiff ^^^^f^^.™"-!^ ^ «== Escambia County Electric Light the use o'^Pa^?^ purchased as a Sutherland, 55 So. 83, cure for rupture, because of injurious ^ " Pinpr v Murrav 115 P substances con^n^ ^^Ho^er" Z K' Mont. 23^ Tay™ Vuston ■ gtruction attempting to cover tne ™ V , p 05 s W 1019 38 Tex. whole case, but omitting the e ements Mectric Co 85 S. W- I^l9^