THE LAW OF
INSTRUCTIONS
TO JURIES
IN CIVIL AND CRIMINAL CASES
Rules and a Complete Collection of
Approved and Annotated Forms
By
EDWARD R. BRANSON
THIRD EDITION
By
A. H. REID, B.L., LL.B. [Wis.]
Judge, Sixteenth Judicial Circuit, Wisconsin
Volume 1
RULES
I960 Replacement
By
William Samore
Profess<«^l^g^-Ma|^8lLto School
THE BOBBS-MERRILL COMPANY, INC.
A SUBSIDIARY OF HOWARD W. SAMS & CO., INC.
Publishers • INDIANAPOLIS * NEW YORK
COPYRIGHT 1914
BY THE BOBBS-MERRILL COMPANY
COPYRIGHT 1925
BY THE BOBBS-MERRILL COMPANY
COPYRIGHT 1936
BY THE BOBBS-MERRILL COMPANY
COPYRIGHT 1960
BY THE BOBBS-MERRILL COMPANY, INC.
PREFACE TO REPLACEMENT VOLUMES
Instructions are supposed to enlighten the jury on the ap-
plicable law. There is some basis for the conclusion that too
many instructions could not enlighten a seasoned lawyer, let
alone a jury of laymen. The hypothetical instruction, for ex-
ample, usually is incredibly complex, the "ifs" snowballing until
an entire page of print may be consumed. A cynic might say
that instructions are designed to trap the trial judge into com-
mitting error. This is a perversion of the correct use of instruc-
tions, but still tried in many cases. Some kind of record, not
necessarily enviable, seems to have been established in a recent
case in which 582 requests were made by one party!
The advocate who is not the trapper has enough to worry
about. Considering the rules that must be followed to insure
approval of a request, it is surprising that so many instructions
escape the enormous pitfalls. Most of the instructions repro-
duced in these volumes have been scrutinized by an appellate
court. They were given and approved on appeal, or denied and
this held to be reversible error on appeal.
Even though so weathered, one cannot over emphasize that
instructions must not be isolated from the ease in which they
were given. An instruction may correctly state the law, yet be
erroneous if not supported by the evidence or applicable to the
pleadings.
These instructions are like any other forms : one should be
careful about their use. Their main function is to serve as a
point of beginning. They must be adapted to the peculiarities
of the evidence and pleading, even if correctly stating the law.
Moreover, there probably isn't an instruction that cannot be
semantically improved for better understanding. Certainly, these
volumes should not be used as a magician picks rabbits out of
a hat.
The main purpose of replacing the volumes is to bring mat-
ters up to date. Newer instructions replace old ones ; better ones
replace instructions not as good. Some entirely new instructions
on matters not covered before have been added. A reorganiza-
tion in classification has been made, especially with a view to
eliminate duplication.
A work of this nature cannot be exhaustive. One must read
thousands of cases to be sure that the compiler of headnotes in
a digest system did not commit a sin of omission. There has
been an attempt to be comprehensive by finding instructions in
iii
IV PREFACE
all the states. But sometimes, appellate courts are wittingly or
unwittingly uncooperative. Some judges rarely, if ever, repro-
duce an approved instruction in their opinions. But, of course,
appellate judges do not write opinions for the convenience of
editors. On the other hand, editors may write for the conven-
ience of the practicing attorney. This is the purpose of the
replacement volumes.
WILLIAM SAMORE
Cleveland, Ohio,
January 20, 1960.
TABLE OF CONTENTS
CHAPTER 1. NATURE AND PURPOSE OF INSTRUCTIONS
Section
1. Definition.
2. Office of charge.
3. Law of the case.
4. Necessity of instructions — Duty of court to charge the jury.
5. Discretion of trial court in giving instructions.
CHAPTER 2. PROVINCE OF THE COURT AND THE JURY
10. Relative functions of court and jury.
11. Function of court to outline issues and state theories and contentions
of parties.
12. Function of court to determine legal principles applicable to case.
13. Function of court to interpret papers and documents.
14. Function of court to determine competency and materiality of
evidence.
15. Direction of verdict in civil cases.
16. Direction of verdict where evidence undisputed.
16A. Effect of both parties moving for a directed verdict.
17. Direction of verdict in criminal cases.
18. Direction of verdict where there is scintilla of evidence.
19. Summing up evidence by court.
20. Inferences of fact from the evidence.
21. Hypothetical statement of facts.
22. Disparaging comments on merits of case.
23. Assumption of facts — General rule and illustrations.
24. Assumption of facts — Statement of issues and claims.
25. Assumption of facts — Established, uncontroverted or admitted facts.
26. Assumption of facts in criminal cases.
27. Weight of contradictory evidence for jury in civil cases.
28. Questions of fact and weight of evidence in criminal cases.
29. Comments and expressions of opinion on the evidence — In general.
30. Comments and expressions of opinion as to preponderance of evidence.
31. Comments and expressions of opinion — Cases of contract and tort.
32. Comments and expressions of opinion — Criminal cases.
33. Comments and expressions of opinion — Common-law rule and rule in
federal courts.
34. Weight of admissions of parties.
35. Weight of expert testimony.
36. Weight of circumstantial and negative evidence.
37. Credibility of witnesses for jury.
38. Credibility of witnesses — Corroborating or contradictory evidence.
39. Credibility of witnesses — Demeanor and character of witnesses.
40. Credibility of witnesses — Interested witnesses.
41. Credibility of witnesses in criminal cases.
42. Cautionary instructions.
43. Cautioning individual jurors.
44. Recommendations of mercy in criminal cases.
45. Coercing jury to reach agreement.
46. Private communications of the judge with the jury during their
deliberations.
Vi TABLE OF CONTENTS
CHAPTER 3. SUBJECT-MATTER
Section
50. Pertinency of instructions to issues and evidence.
51. Recapitulation of testimony.
52. Theories of case in civil actions.
53. Theories of case in criminal prosecution.
54. Definition of terms in civil cases.
55. Definition of terms in criminal cases.
56. Limitation of purpose of evidence.
57. Lower grade of offense.
58. Insanity of accused.
59. Reasonable doubt.
60. Good character as generating reasonable doubt of guilt.
61. Burden of proof in civil cases.
62. Burden of proof and presumption of innocence in criminal cases.
63. Circumstantial evidence in civil cases.
64. Circumstantial evidence in criminal cases.
65. Positive and negative testimony.
66. Inferences from flight.
67. Confessions in criminal cases.
68. Credibility of witnesses — Interest of witnesses — Falsus in uno, falsus
in omnibus.
69. Credibility of witnesses in criminal cases — Interest of witnesses —
Falsus in uno, falsus in omnibus.
70. Failure of party to testify in his own behalf or call material witness.
71. Failure of defendant in criminal case to testify or call witness or
produce evidence.
72. Alibi in criminal cases.
73. Instruction to disregard testimony erroneously received.
74. Argument of counsel.
75. Manner of arriving at verdict.
76. Form of verdict.
CHAPTER 4. FORM AND ARRANGEMENT
90. Form and arrangement in general.
91. Written and oral instructions.
92. Marking and signing instructions.
93. Reading instructions to the jury.
94. Clearness of expression.
95. Repetition of instructions in civil cases.
96. Repetition of instructions in criminal cases.
97. Limitation on number of instructions.
98. Reference to pleadings for issues.
99. Reference to indictment or information.
100. Reference to other instructions,
101. Reading from statutes or ordinances.
102. Quotations from decisions.
103. Misleading instructions.
104. Contradictory instructions.
105. Undue prominence to particular features in civil cases.
106. Undue prominence to matters of evidence in civil cases.
107. Undue prominence in criminal cases.
108. Argumentative instructions in civil cases.
109. Argumentative instructions in criminal cases.
110. Appeals to sympathy or prejudice.
111. Special verdicts, interrogatories, and findings — Preparation, form,
and submission.
112. Special verdicts — Instructions concerning.
CHAPTER 5. PERTINENCY
115. Necessity that instructions should be pertinent in civil cases.
116. Pertinency of instructions in criminal prosecutions.
TABLE OF CONTENTS vii
Section
117. Pertinency to pleadings in civil cases.
118. Pertinency to averments in indictment.
119. Pertinency to evidence admitted in civil cases.
120. Pertinency to evidence admitted in criminal prosecutions.
121. Abstract instructions in civil cases.
122. Abstract instructions in criminal prosecutions.
123. Ignoring issues in civil cases.
124. Ignoring evidence in civil cases.
125. Ignoring issues and evidence in criminal prosecutions.
126. Directing verdict if jury believes certain evidence or finds certain
facts — Formula instructions.
CHAPTER 6. CONSTRUCTION AND EFFECT
135. Interpretation — In general.
136. Construction of charge as an entirety in civil cases.
137. Construction of charge as an entirety in criminal cases.
138. Cure of erroneous instruction by correct instruction in civil cases.
139. Cure of erroneous instruction by correct instruction in criminal cases.
140. Cure of ambiguous instruction by another instruction.
141. Cure by withdrawal of erroneous instruction.
CHAPTER 7. REQUESTS
150. Duty to make timely request and tender proper instructions in civil
cases.
151. Duty to make timely request and tender proper instructions in
criminal cases.
152. Requests for further or more specific instructions in civil cases.
153. Requests for further or more specific instructions in criminal cases.
154. Formal requisites of requests.
155. Necessity of clear expression in requested instruction.
156. Modification of requested instructions.
157. Refusal for errors in request.
158. Refused instructions in civil cases substantially covered by other
instructions given.
159. Refused instructions in criminal cases substantially covered by other
instructions given.
160. Refusal of inconsistent requests.
161. Requests for special verdict or findings on interrogatories by jury.
CHAPTER 8. PRESERVATION OF ERROR FOR REVIEW
170. In general.
171. Timeliness of objections and exceptions.
172. Clearness of statement of grounds of objection or exception.
173. Particularity in statement of grounds of objection or exception.
174. General objections or exceptions to entire charge.
175. Waiver of objections and exceptions.
CHAPTER 9. PRACTICAL SUGGESTIONS
180. Instructing the jury.
181. Preparing and submitting special interrogatories.
182. Taking a special verdict.
183. The verdict and its incidents.
184. Demurring to evidence — Nonsuit — Directing a verdict.
185. Exceptions and bills of exceptions.
INDEX
THE LAW OF
INSTRUCTIONS TO JURIES
RULES GOVERNING THE GIVING OR REFUSAL
OF INSTRUCTIONS
CHAPTER 1
NATURE AND PURPOSE OF INSTRUCTIONS
Section Section
1. Definition. 4. Necessity of instructions — Duty
2. Office of charge. of court to charge the jury.
3. Law of the case. 5. Discretion of trial court in giv-
ing- instructions.
§ 1. Definition.
An instruction is an explanation by the trial judge to the
jury of the rules of law applicable to the case in general, or to
some branch or phase of the case.
Instructions inform the jury upon the law applicable to the
pleadings and the evidence, so as to aid the jury in reaching a
correct verdict under the evidence.1 Instructions are directions
in reference to the law of the case, enabling the jury better to
understand their duty, and prevent them from arriving at wrong
conclusions.2
The term does not include the ordinary remarks and admoni-
tions of the court to the jury during the course of the trial.3
It has accordingly been decided that the character of instruc-
tions does not attach to such matters as directions of the court
on the manner of returning a sealed verdict;4 the manner of
1 Lehman v. Hawks, 121 Ind 541, 3 Illinois. Hinckley v, Horazdow-
23 NE 670; Plummer v. Indianap- sky, 133 111 359, 24 NE 421, 8 LRA
olis Union R. Co., 56 IndApp 615, 490.
104 NE 601; Hanson v. Kent & Kentucky. Wendling v. Common-
Furdy Paint Co., 36 Okl 583, 129 wealth, 143 Ky 587, 137 SW 205.
P 7. Wisconsin. McCormiek v. Ketch-
2 Leavitt v. Deichmann, 30 Okl um, 48 Wis 643, 4 NW 798.
423, 120 P 983; Butler v. Gill, 34 4 McCallister v. Mount, 73 Ind 559.
Okl 814, 127 P 439.
§2 INSTRUCTIONS — RULES GOVERNING 2
answering interrogatories;3 the form of the verdict to be re-
turned;6 directions to the jury to find a verdict for one party
or the other;7 rulings as to the admission or exclusion of evi-
dence;8 a direction to the jury to disregard evidence unless its
relevancy is afterward shown.9
Theoretically, the instructions merely define the issues in the
case on trial.10 Orally explaining to the jury the manner in
which they should mark their verdict does not constitute an
instruction.1 ' Nor is it an instruction if the judge does no more
than read the controlling statute to the jury in an action based
on the negligence of an unlicensed automobile operator. ' 2 Tech-
nically, telling the jury that certain orders had been entered in
the case prior thereto is not an instruction,13
§ 2. Office of charge.
The office of a charge is: first, to explain the issues; second,
to notice the positions taken by the parties and state, so far as
the case may require it, the principles of evidence and their
application; and, third, to declare what rules of law will be ap-
plicable to any state of facts which may be found in the evidence.
The charge to the jury includes a general statement of the
theories of both parties, without expressing an opinion as to the
correctness of any theory. The presiding justice should point
out clearly and concisely the precise issues in controversy and
the rules of law applicable. He should make the jury under-
stand the pleadings, positions and contentions of the litigants,
by stating, comparing and explaining the evidence. In short,
he should do all things as in his judgment will enable the jury
to acquire a clear understanding of the law and the evidence,
and form a correct judgment.14
s Trentman v. Wiley, 85 Ind 33. ! 2 Blanos v. Kulesva, 107 Conn
6 Bradway v. Waddell, 95 Ind 170; 476, 141 A 106.
Herron v. State, 17 IndApp 161, 46 ' 3 Delk v. Commonwealth, 243 Ky
NE 540; Boggs v. United States, 10 38, 47 SW2d 957.
Okl 424, 63 F 969, 65 P 927. ' 4 Federal. In trials of actions at
7 Lehman v. Hawks, 121 Ind 541, law the court instructs the jury for
23 NE 670. the purpose of directing their atten-
8Lawler v. McPheeters, 73 Ind tion to the legal principles which
577; State v. Linden, 171 Wash 92, are applicable to the facts shown by
17 P2d 635. the evidence in the case. Order of
9 Stanley v. Sutherland, 54 Ind United Commercial Travelers v.
339. Nicholson, 9 F2d 7.
1 a Bilsky v. Sun Ins. Office, Ltd. Alabama. Desmond v. Wilson, 143
(MoApp), 84 SW2d 171. Me 262, 60 A2d 782.
1 r State v. Finney, 141 Kan 12, Illinois. Monroe v. Wear, 276 111
40 P2d 411, stated in the light of App 570.
statutory requirement that instruc- Michigan. Souvais v. Leavitt, 50
tions must be in writing. Mich 108, 15 NW 37.
3 NATURE AND PURPOSE OF INSTRUCTIONS § 2
It is another statement of the principle to say that the
province of instructions from the court is to inform the jury
what the law is, connected with the case in hand, and show them
how to apply it to the particular facts involved;15 to state to
the jury the claims set up by the parties, as disclosed by the
evidence, and instruct them upon the law applicable thereto;16
to assist the jury in correctly applying the law to the facts of
the case;17 to enlighten the jury on questions of law pertinent
to the issues of fact submitted to them in the trial of a case ; * 8
to aid the jury clearly to comprehend the case and render a
fair verdict;19 to enlighten the jury and aid it in arriving at a
correct verdict;20 or to lay before the jury correct principles of
law applicable to the evidence in the case.2'
The office of instructions is to define the legal principles
covering facts proved or presumed in a case ;22 or to define for
the jury the legal principles governing the facts presented.23
The object sought in all cases is the enlightenment of the
jury,24 and nothing should be given, in the way of instructions
that does not promote this object.25
It is the purpose of instructions to direct the conduct of the
jurors in the controversy which they are called upon to decide,
rather than to teach law to the jurors.26 It has been declared
Ohio. Walsh v. J. R. Thomas isville & N. R. Co., 81 Fla 194, 87
Sons, 91 OhSt 210, 110 NE 454; S 750.
Lake Shore & M. S. R. Co. v. Whid- ' 9 Builders Lbr. & Supply Co. v.
den, 2 OhCirCt (N. S.) 544, 13 Cheek, 139 SC 299, 137 SE 734.
OhCirDec 85. 2O Beck v. Beagle, 28 OhApp 508,
West Virginia. It is the object 162 NE 810.
and purpose of instructions to define 2 f First Nat. Bank v. Eitemiller,
for the jury and to direct their at- 14 IllApp 22; Williams v. Walsh,
tention to the legal principles which 341 IllApp 543, 95 NE2d 743.
apply thereto and cover the facts 22 Commonwealth v. Brletic, 113
proved or presumed in the case. PaSuper 508, 173 A 686.
State v. Dodds, 54 WVa 289, 46 SE 23 Huffman v. People, 96 Colo 80,
228. 39 P2d 788.
1 5 Connecticut. Morris v. Platt, 24 State v. Stout, 49 OhSt 270,
32 Conn 75. 30 NE 437.
Massachusetts. Sawyer v. Worces- 25 Baxter v. People, 3 Gilm. (8
ter Consol. St. R. Co., 231 Mass 111) 368; Montag v. People, 141 111
215, 120 NE 404. 75, 30 NE 337; First Nat. Bank v.
Nevada. State v. Levigne, 17 Nev Eitemiller, 14 IllApp 22.
435, 30 P 1084. 2G Lendberg v. Brotherton Iron
1 6 Grout v. Nichols, 53 Me 383. Min. Co., 75 Mich 84, 42 NW 675.
1 7 Iowa. Behrend v. Behrend, 233 It is the office of instructions to
la 812, 10 NW2d 651. apprise the jury as to the questions
Kansas. Sawyer v. Sauer, 10 Kan that are involved and to inform them
466. as to the law to be applied in the
Michigan. People v. MacPherson, solution of such questions. People
323 Mich 438, 35 NW2d 376. v. Ring, 267 Mich 657, 255 NW 373,
1 8 Holman Live Stock Co. v. Lou- 93 ALB 993.
§3 INSTRUCTIONS — RULES GOVERNING 4
to be the object of instructions to guard against the considera-
tion by the jury of false issues raised by the evidence as well
as to inform them of the law applicable to the issues.27
The instructions should be sufficient to embody the whole law
of the case.28 The judge may adopt, as his own, a charge pre-
pared by one of the parties and make it the main charge.29
Instructions are given for the purpose of aiding the jury as to
the method of looking at the evidence and applying the law to
the facts proved.30
§ 3. Law of the case.
The instructions are the law of the case, and it is the duty
of the jury to follow them whether the instructions are proper
or improper. Even in jurisdictions where the jury are judges
of both the law and the facts, they are not free to wholly ignore
what the court has declared to be the applicable law since the
best evidence the jurors have of the law is the instructions of
the court.
The rule in most jurisdictions is that it is the duty of the
jury in all cases to follow the instructions given them by the
court, whether correct or not. The reasons for the rule are
obvious, and any other would lead to endless confusion, sanction
an utter disregard of the court's opinion of the law applicable
to the pleadings and the evidence, and render its instructions
entirely impotent, unless the jury coincidentally reached a ver-
dict consistent with the instructions.3'
The purpose of instructions is to Benson Hdw. Co., 24 AlaApp 127,
furnish, to the jury a guide for 131 S 1.
arriving at a just decision of the The trial court may, without corn-
case. Zabinski v. Novak, 211 Wis mitting reversible error, refuse to
215, 248 NW 99. accept a verdict attempted to be
27 Brand v. Herdt (MoApp), 45 returned contrary to the court's in-
SW2d 878. structions. McShan v. Kalpatrick,
28 Morgan v. Commonwealth, 242 215 Ala 185, 110 S 281.
Ky 116, 45 SW2d 850. Arizona. Pacific Gas & Elec. Co.
It is not error to give a very v> Almanzo, 22 Ariz, 431, 198 P 457.
short charge if it states all the law ^ ,.- . -,, , - ,
applicable to the case. Lenart v. .^^^ ^?1^ ViPf^en?'
Cochran 2 OLA 537 178 Cal 122> 172 P 384>" Redo ? Cla
C°- Talsh v J5 R. Thomas Sons, I' *** Nat. Bank, 200 Cal 161, 252
91 OhSt 210, 110 NE 454; Kansas * w''
City, M. <fe 0. R. Co. of Texas v. Georgia. Jackson v. State, 118 Ga
Harral (TexCivApp), 199 SW 659. 780> 4& SE 604.
30 Keime v. Thum, 238 IllApp 519. It is not error in a criminal case
3 ' Federal. American R. Co. of to instruct the jury that if the court
Porto Rico v. Santiago, 9 F2d 753; erred in giving a principle of law,
Carroll v. United States, 16 F2d 951. the responsibility does not rest with
Alabama. Penticost v. Massey, the jury, but it is their duty to
202 Ala 681, 81 S 637; Copeland v. accept the law as given by the
NATURE AND PURPOSE OF INSTRUCTIONS
§3
If the jury refuse or fail to follow the court's instructions,
the losing party may ask the court to set aside the verdict and
grant a new trial. But even though the jury disregard or violate
the instructions in arriving at their verdict, the motion should
not be granted unless the result was prejudicial to the losing
party.32
Hence, many courts will not ordinarily reverse for the failure
of a jury to follow an erroneous instruction.33 Thus, in a dam-
age action for personal injuries against a railway company,
court. Holton v. State, 137 Ga 86,
72 SE 949.
Iowa. Mahoney v. Dankwart, 108
la 321, 79 NW 134; Bowell v. Drap-
er, 149 la 725, 129 NW 54; Seevers
v. Cleveland Coal Co., 158 la 574,
138 NW 793, AnnCas 1915D, 188;
State v. Anderson, 209 la 510, 228
NW 353, 67 ALR 1366; Hall v.
Great American Ins. Co. of New
York, 217 la 100-5, 252 NW 763.
Kentucky. Barney v. Jolly Hoop
Co., 172 Ky 99, 188 SW 1094; Parris'
Admx. v. Molter, 251 Ky 432, 65
SW2d 52.
Maine. State v. Wright, 128 Me
404, 148 A 141.
Massachusetts. Commonwealth v.
Davis, 271 Mass 99, 170 NE 924.
Michigan. People v. McMurchy,
249 Mich 147, 228 NW 723.
Montana. King v. Lincoln, 26
Mont 157, 66 P 836.
Nebraska. Boyesen v. Heidel-
brecht, 56 Neb 570, 76 NW 1089;
Barton v. Shull, 62 Neb 570, 87 NW
322.
The rule is that it is the duty of
the jury in all cases to follow the in-
structions given them by the court,
whether correct or not; and, if they
fail to do so, the verdict will be
deemed to be contrary to law, and
should be set aside and a new trial
ordered. The reasons for the rule
are obvious, and any other would
lead to endless confusion, sanction
an utter disregard of the court's
opinion of the law applicable to the
pleadings and the evidence, and ren-
der its instructions entirely impo-
tent, except when willed otherwise
by the jury. A refusal or failure
to follow the instructions of the
court is sufficient ground for setting
aside a verdict and granting a new
trial. Barton v. Shull, 62 Neb 570,
87 NW 322.
New Jersey. Queen v. Jennings,
93 NJL 353, 108 A 379; Cikatz v.
Milwid, 5 NJMisc 768, 138 A 305.
New Mexico. State v. Reed, 39
NM 44, 39 P2d 1005. See State v.
Wallis, 34 NM 454, 283 P 906.
32 Gambon v. New York, 153 Misc
401, 274 NYS 653.
New York. Lang v. Interborough
Rapid Transit Co., 193 AppDiv 56,
183 NYS 270; Trulock v. Kings
County Iron Foundry, 216 AppDiv
439, 215 NYS 587; Oatka Cemetery
Assn. v. Cazeau, 242 AppDiv 415,
275 NYS 355.
Ohio. Wallace v. Ennis, Dayton
(Oh) 414; New Jerusalem Church v.
Crocker, 7 OhCirCt 327, 4 OhCirDec
619. See Globe Ins. Co. v. Sherlock,
25 OhSt 50.
Oregon. State v. Wong Si Sam,
63 Or 266, 127 P 683.
Pennsylvania. Commonwealth v.
Long, 100 PaSuper 150.
Texas. McAllister & Co. v. Grice,
(TexCivApp), 286 SW 1001; Indem-
nity Ins. Co. of North America v.
Williams (TexCivApp), 69 SW2d
519.
Utah. State v. Hoben, 36 Utah
186, 102 P 1000.
Virginia. Messer v. Common-
wealth, 145 Va 872, 134 SE 565;
Buchanan v. Norfolk Southern R.
Co., 150 Va 17, 142 SE 405.
Washington. Waldon v. Seattle,
182 Wash 493, 47 P2d 978.
33 Arkansas. St. Louis, I. M. &
S. R. Co. v. Dooley, 77 Ark 561, 92
SW 789.
§3 INSTRUCTIONS — RULES GOVERNING 6
where the court erroneously withdrew from the jury the issue
based on the last clear chance doctrine but the jury neverthe-
less returned a contrary verdict, it was held that the verdict
should not be disturbed.34
There are cases, however, which hold that a verdict rendered
in plain disregard of the instructions of the court should be set
aside without an examination of the instructions to determine
whether they are correct or not.35
If it be made to appear that the verdict was rendered con-
trary to the instructions, it is generally held that the court
has no discretion to refuse to set aside the verdict upon proper
application. "The instructions of the trial court are the law
as far as the jury is concerned. They must be followed by it.
A verdict arrived at in opposition to the directions of the court
will not be permitted to stand. The trial court has no discretion
in ruling where this ground is made to appear in an application
to set aside the verdict so arrived at. It is a plain legal duty
of the court to set it aside, and refusal to do so is reversible
error."36 Thus, if the jury return a verdict assessing the value
of an automobile traded in, contrary to the charge of the court
as to the law of the case, it will be set aside.37 In any event,
an instruction submitted to the jury without objection becomes
the law of the case.38
Illinois, McNulta v. Ensch, 134 Iowa. Jensen v. Duvall, 192 la 960,
111 46, 24 NE 631; West Chicago St. 185 NW 584.
R. Co. v. Manning, 170 111 417, 48 Kentucky. Dunn v. Blue Grass
NE 958. Realty Co., 163 Ky 384, 173 SW 1122.
South Carolina. Campbell v. West- Massachusetts. Peterson v. Pat-
ern Union Tel. Co., 74 SC 300, 54 rick, 126 Mass 395.
SE 571. Missouri. Laclede Power Co. v.
Wisconsin. Loew v. State, 60 Wis Nash Smith Tea Co., 95 MoApp 412,
559, 19 NW 437. 69 SW 27.
34 Gore v. Market St. R. Co. (Cal Montana. Lish v. Martin, 55 Mont
App), 37 P2d 1059, 38 P2d 804. 582, 179 P 826.
35 Illinois. Browder v. Beckman, Nevada. Hoffman v. Bosch, 18
275 IllApp 193. Nev 360, 4 P 703.
Montana. McAllister v. Rocky New York. Bigelow v. Garwitz, 61
Fork Coal Co., 31 Mont 359, 78 P Hun 624, 15 NYS 940.
595. Oregon. British Empire Ins. Co.
Nebraska. Haslan v. Barge, 69 v. Hasenmayer, 90 Or 608, 178 P 180.
Neb 644, 96 NW 245. Contra: Loew v. State, 60 Wis
36 Bowers, The Judicial Discretion 559, 19 NW 437.
of Trial Courts, § 542, citing-; 3* Eggie v. Denof, 6 NJMisc 199,
Federal. Stetson v. Stindt, 279 F 140 A 417.
209, 23 ALR 302. 38 Montana. Instruction that
Alabama. Holcombe & Bowden v. guest in automobile which collided
Reynolds, 200 Ala 190, 75 S 938. with defendant's truck could not re-
Georgia. Kennedy v. McCook, 23 cover if the negligence of the driver
GaApp 422, 98 SE 390. of the car in which plaintiff was rid-
7 NATURE AND PURPOSE OF INSTRUCTIONS § 3
In a few jurisdictions, state statutes or constitutions declare
that the jury are the judges of both the law and the facts.30
In most of these states this broad jury power is exercised only
in criminal cases. In Maryland, although the jury in criminal
cases may be the judges of the law, as well as the facts, they
have no province to pass on constitutionality.40 In spite of the
clear language in these state statutes or constitutions, it is
questionable whether, in reality, the jury do determine the law,
for the court is the proper source from which they are to be
informed.41 This statement is supported by the latest pro-
nouncement by the Indiana Supreme Court on the jury function
of deciding in a criminal case both law and fact :
"Although the constitution gives the jury the right to
determine the law in criminal cases, it does not follow, nor
is it true, that it is an 'exclusive' right. It is a coordinate
right to be exercised with that of the judge or court. Neither
does it follow, nor is it true, that the jury is the judge of
the law at every step in the proceedings. Neither does it
follow, nor is it true, that it is totally irresponsible in de-
termining the law, and has no duty in the exercise of that
right to seek the law from the best and most reliable source
available, namely the court. A jury may not cast aside such
advice or instructions lightly, and should be so instructed in
view of their general lack of such knowledge. A conscious-
ness of their responsibility, oath and duty in that respect
is an aid to the proper performance of their constitutional
duty. Nevertheless upon final analysis after being so in-
formed and cautioned the jury has the power to go its own
way, and determine the law for itself when it renders a
ing was the proximate cause of the in passing: upon the admissibility of
collision, became the law of the case, evidence, it was held that the court
Ashley v. Safeway Stores, Inc., 100 properly refused to charge at the
Mont 312, 47 P2d 53. request of the defendant that the
Rhode Island. Andrews v. Penna jury were not to pay any attention
Charcoal Co., 55 RI 215, 179 A 696. to the remarks of the court. Dick v.
Virginia. Standard Dredging Co. State, 107 Md 11, 68 A 576; Midgett
v. Barnalla, 158 Va 367, 163 SE 367. v. State, 216 Md 26, 139 A2d 209.
39 Indiana. Carter v. State, 2 Ind Tennessee. Dykes v. State, 201
617; Driskill v. State, 7 Ind 338. Tenn 65, 296 SW2d 861.
Louisiana. See also State v. Me- In Howe, "Juries as Judges of
Lofton, 145 La 499, 82 S 680. Criminal Law," 52 HarvLRev 582 at
Maryland. In a jurisdiction where 614 (1939), it is stated that only
the jury are the judges of the law as Indiana and Maryland still adhere
well as the facts in criminal cases, to this rule.
and the court is entitled to give ad- 4O Hitchcock v. State, 213 Md 273,
visory instructions, where the court 131 A2d 714.
does instruct the jury that he had 4I Dykes v. State, 201 Terni 65,
held a certain matter to be the law 296 SWS4 861.
§ 4 INSTRUCTIONS — RULES GOVERNING 8
verdict. If the defendant is found guilty, its determination
of the law, if in error, will be overridden by the court's bet-
ter understanding of the law in the interest of justice and
constitutional law."42
§ 4. Necessity of instructions — Duty of court to charge the jury.
The parties to an action, either civil or criminal, have the
right to a charge from the court outlining and explaining to the
jury the law of the case and the issues which are to be decided
between the parties.
Every party to an action in court goes before the jury with
a definite legal theory as to his cause of action or defense and
as to the facts and circumstances upon which he relies to sus-
tain his cause of action or defense. The case proceeds through
its various phases to the ultimate decision of the jury, upon
these theories of the parties. The trial judge, from his training,
education, experience, and familiarity with legal procedure and
principles, brings to the case an informed understanding of the
theories of the parties from the issues tendered by the plead-
ings, which he assumes the respective parties will present evi-
dence to sustain. But the jury do not bring this informed under-
standing into their consideration of the case. It is therefore the
province and duty of the trial judge to impart to them this
understanding of the theories of the parties upon which their
contentions are presented and to instruct the jury distinctly
and precisely upon the law of the case.43 As a general rule,
42 Beavers v. Indiana, 236 Ind 549, Georgia. Savannah Elec. Co. v.
141 NE2d 118. Johnson, 12 GaApp 154, 76 SE 1059;
43 Federal. Massee v. Williams, Banks v. State, 89 Ga 75, 14 SE 927;
207 F 222; Northern Central Coal Parks v. State, 24 GaApp 243, 100
Co. v. Hughes, 224 F 57; Chesapeake SE 724.
& 0. R. Co. v. Moore, 64 F2d 472; Illinois. Keokuk & Hamilton
Little v. United States, 73 F2d 861. Bridge Co. v. Wetzel, 228 111 253,
Alabama. Dwight Mfg. Co. v. 81 NE 864; Sampsell v. Rybeynski,
Word, 200 Ala 221, 75 S 979; Ala- 229 111 75, 82 NE 244; Klofski v.
bama Produce Co. v. Smith, 224 Ala R. Supply Co., 235 111 146, 85 NE
688, 141 S 674. 274; Kokoshkey v. Chicago City R.
California. Buckley v. Silverberg, Co., 162 IllApp 613; Krieger v. Au-
113 Cal 673, 45 P 804; Raymond v. rora, E. & C. R. Co., 242 111 544,
Hill, 168 Cal 473, 143 P 743; Tog- 90 NE 266.
nazzini v. Freeman, 18 CalApp 468, Indiana. Hipes v. State, 73 Ind
123 P 540; People v. Fox, 43 CalApp 39; Bloom v. State, 155 Ind 292, 58
399, 185 P 211; Hellman v. Los An- NE 81; Baltimore & 0. R. Co. v.
geles R. Corp., 135 CalApp 627, 27 Peck, 53 IndApp 281, 101 NE 674;
P2d 946, 28 P2d 384. Walsh Baking Co. v. Southern Indi-
Colorado. Denver City Tramway ana Gas & Elec. Co., 97 IndApp 285,
Co. v. Doyle, 63 Colo 500, 167 P 777. 186 NE 341.
Florida. Seaboard Air Line R. Co. Iowa. Biggs v. Seufferlein, 164 la
v. Kay, 73 Fla 554, 74 S 523, 241, 145 NW 507 (LRA 1915F, 673);
9 NATURE AND PURPOSE OF INSTRUCTIONS § 4
whether so requested or not, the court should instruct on every
essential question in the case so as properly to advise the jury
of the issues.44 The object of a charge is to define for the jury,
and to direct their attention to, the legal principles which apply
to and govern the facts, proved or presumed, in the case, and
hence the charge should be full, clear, and explicit. The proper
procedure is for the court to state correctly in the charge both
the claims made by the prosecution and those made by the de~
Monoghan v. Bowers, 185 la 708, 171
NW 38.
Kansas. Binkley v. Dewall, 9 Kan
App 891, 58 P 1028.
Kentucky. Julius Winter, Jr., &
Co. v. Forrest, 145 Ky 581, 140 SW
1005; Pack v. Camden Interstate R.
Co., 154 Ky 535, 157 SW 906; Go-
lubic v. Rasnich, 249 Ky 266, 60
SW2d 616.
Louisiana. State v. Tucker, 38
LaAnn 536.
Maryland. Lion v. Baltimore City
Passenger R. Co., 90 Md 266, 44 A
1045, 47 LRA 127.
Massachusetts. Commonwealth v.
Kneeland, 20 Pick. (37 Mass) 206.
Michigan. Wildey v. Crane, 69
Mich 17, 36 NW 734.
Minnesota. Virtue v. Creamery
Pkg. Mfg. Co., 123 Minn 17, 142 NW
930, 1136, LRA 1915B, 1179.
Mississippi. Gambrell v. State, 92
Miss 728, 46 S 138, 17 LRA(N.S.)
291, 131 AmSt 549, 16 AnnCas 147.
Missouri. State v. Chick, 282 Mo
51, 221 SW 10; Young v, Wheelock,
333 Mo 992, 64 SW2d 950; State v.
Markel, 336 Mo 129, 77 SW2d 112;
Nat. Warehouse & Storage Co. v.
Toomey, 181 MoApp 64, 163 SW 558;
Boles v. Dunham (Mo App), 208
SW 480; Helstein v. Schmidt, 227
MoApp 1200, 61 SW2d 264.
Montana. Power & Bro. v. Turner,
37 Mont 521, 97 P 950.
Nebraska. Hancock v. Stout, 28
Neb 301, 44 NW 446; McKennan v.
Omaha & C. B. St. R. Co., 95 Neb
643, 146 NW 1014; Brooks v. Thayer
County, 126 Neb 610, 254 NW 413;
Goldman v. State, 128 Neb 684, 260
NW 373.
New Jersey. Scott v. Mitchell, 41
NJL 346.
New Mexico. Territory v. Baca, 11
NM 559, 71 P 460.
New York. Kearns v. Brooklyn
Heights R. Co., 60 AppDiv 631, 69
NYS 856; Jacobson v. Fraade, 56
Misc 631, 107 NYS 706.
North Dakota. Putnam v. Prouty,
24 ND 517, 140 NW 93; State v.
Lesh, 27 ND 165, 145 NW 829.
Ohio. Lytle v. Boyer, 33 OhSt 506;
Walsh v. J. R. Thomas Sons, 92 OhSt
210, 110 NE 454; Perry v. Edwards
Mfg. Co., 18 OhNP (N. S.) 293,
26 OhDec 301; McKinnon v. Petti-
bone, 44 OhApp 147, 184 NE 707, 12
OLA 668.
It is not error for a justice to
submit a case to a jury without a
charge where he is not requested to
make one. Myer v. State, 10 OhCir
Ct 226, 6 OhCirDec 477, 3 OD 198.
Oklahoma. Johnson v. Harris, 166
Okl 23, 25 P2d 1072; Mclntosh v.
State, 8 OklCr 469, 128 P 735; Crit-
tenden v. State, 13 OklCr 351, 164
P 675.
This court has repeatedly held
that it is error for the trial court
to fail and refuse to instruct on the
law applicable to a theory of the
defense which the evidence tends to
support, when such evidence affects
a material issue in the case. Peyton
v. State, 16 OklCr 410, 183 P 639,
Oregon. Cerrano v. Portland R.
Light & Power Co., 62 Or 421, 126
P 37; State v. Hill, 63 Or 451, 128
p 444; De Vol v. Citizens Bank, 92
Or 606, 179 P 282, 181 P 985.
Pennsylvania. Tiribassi v. Parnell,
Cowher & Co., 106 PaSuper 168, 161
A 477.
It is the duty of the trial judge
not only to state the rules of law
that are pertinent to the particular
§4
INSTRUCTIONS — RULES GOVERNING
10
f endant and the theories which the evidence for each respectively
tends to establish.48
The extent and limitation of the court's duty in this regard
is to give instructions that are correct in law, adapted to the
issues, and sufficient for the guidance of the jury.46 That the
trial judge believes the jury is already familiar with the prin-
ciples of law that apply to the case is not an excuse for failing
to charge the jury.47 A party is entitled to have his theory
of his case as disclosed by the evidence submitted to the jury
under proper instructions, and when such an instruction is ten-
dered to the court, refusal to give it is reversible error.48 Issues
of fact must be submitted for determination by the jury, with
such instructions and guidance by the court as will afford op-
portunity for that consideration by the jury which was secured
to litigants by the rules of the common law.49 It is not required
that any formal statement of the issues be made by the court if
the court directs the jury as to the facts necessary to be found
to justify or to defeat a recovery;50 nor need the court explain
to the jury his reason for giving particular instructions.51
When the trial court instructs the jury as to what issues are
submitted for their determination, it is not required that the
court should tell the jury the reason for so limiting the issues.52
case, but also to inform the jury as
to their relevancy to the particular
showing made by the evidence so
that the jury may intelligently apply
the law as thus given to the facts
that the parties have presented.
Commonwealth v. Principatti, 260
Pa 587, 104 A 53.
South Carolina. Osteen v. South-
ern R. Co., 101 SC 532, 86 SE 30,
LRA 1916A, 565, AnnCas 1917C, 505.
Tennessee. Memphis St. R. Co. v.
Newman, 108 Tenn 666, 69 SW 269.
Texas. Barnes v. Dallas Consol.
Elec. St. R. Co., 103 Tex 387, 128
SW 367, revg. 119 SW 122; Jones v.
State, 86 TexCr 371, 216 SW 884;
Southern Trac. Co. v. Jones (Tex
CivApp), 209 SW 457; Cannaday v.
Martin, (TexCivApp), 69 SW2d 434.
Utah. Miller v. Southern Pacific
Co., 82 Utah 46, 21 P2d 865.
Vermont. Rowell v. Vershire, 62
Vt 405, 19 A 990, 8 LRA 708.
Virginia. Miller & Co. v. Lyons,
113 Va 275, 74 SE 194; Norfolk &
W. R. Co. v. Parrish, 119 Va 670,
89 SE 923.
West Virginia. State v. Alie, 82
WVa 601, 96 SE 1011; Becher v.
Spencer (WVa), 170 SE 900.
Wisconsin. Zabinski v. Novak, 211
Wis 215, 248 NW 99.
44 Grammas v. Colasurdo, 48 NJ
Super 543, 138 A2d 553; Borcherding
v. Eklund, 156 Neb 196, 55 NW2d
643.
45 People v. Viscio, 241 AppDiv
499, 272 NYS 213.
46Baer v. Baird Mach. Co., 84
Conn 269, 79 A 673.
47 Wolfe v. Ives, 83 Conn 174, 76
A 526, 19 AnnCas 752.
48Mentz v. Omaha & C. B. St.
Ry. Co., 103 Neb 216, 170 NW 889,
173 NW 478. See also Omaha St.
Ry. Co. v. Boesen, 68 Neb 437, 94
NW 619.
49 Schiedt v. Dimick, 70 F2d 558,
affd. in 293 US 474, 79 LEd 603,
55 SupCt 296.
50 Kenny v. Bankers Ace. Ins. Co.,
136 la 140, 113 NW 566.
51 King Solomon Tunnel & Dev.
Co. v. Mary Verna Min. Co., 22
ColoApp 528, 127 P 129.
82 Corn Exch. Nat. Bank v.
11 NATUKE AND PURPOSE OF INSTRUCTIONS § 5
Of course, judicial duty to instruct the jury does not go to
the extent of charging the jury relative to a theory that is
opposed to the legal principles that govern the case;53 nor is
there such an obligation to instruct if there are no questions
of law involved, even in a jurisdiction where an existing statute
directs the trial court to give such instructions upon the law
as may be necessary.34 Moreover, the court cannot be required
to charge the jury as to mere common sense propositions or as
to matters which the jurors themselves know in common with
other men of knowledge and experience.55
Unnecessary instructions should not be given, for the effect
is to mislead and confuse, rather than to assist, the jury.56
§ 5. Discretion of trial court in giving instructions,
A trial judge does not have the discretionary power to give
or to refuse to give instructions as he may elect.
Since it is an absolute right of the parties to an action triable
to a jury to have the court charge the jury as to the issues and
theories in the case and as to the law applicable thereto when
the jury undertake to determine the facts, it necessarily follows
that it becomes the duty of the court to give such charge. The
presence of a judicial duty excludes the opposite legal element
— judicial discretion. If the court is required to charge, he has
no discretion to refuse to charge. Judicial discretion does not
enter into the general duty of trial courts to instruct juries in
the trial of cases before them. In the giving of instructions
the presiding judge is bound to the observance of established
rules of law as to their range, scope, contents, and the like,
from which he has no administrative authority to depart.57
Ochlare Orchards Co., 97 Neb 536, Missouri. State v. Garth, 164 Mo
150 NW 651. 553, 65 SW 275.
sa Sturm v. Central Oil Co., 156 56 Alabama. Moss v. Mosely, 148
IllApp 165. Ala 168> 41 S 1012«
TT ii A n i A onn California, People v. Epperson,
v" ' pp ' 3S CalApp 486> *™ F 702-
Florida. Farnsworth v. Tampa
35 Federal Lesser Cotton Co. v. Elec> Co ? 62 pia 1^6, 57 S 233.
St. Louis, I. M. & S. Ry. Co., 114 Iowa. Bell v. Chicago, B. & Q.
F 133, 52 CCA 950. Ry. Co., 74 la 343, 37 NW 768.
Alabama. Birmingham Ry. & Mississippi. Keys v. State, 110
Elec. Co. v. Wildman, 119 Ala 547, Miss 433, 70 S 457.
24 S 548. Missouri. Edwards v. Schreiber,
California. Davis v. McNear, 101 168 MoApp 197, 153 SW 69.
Cal 606, 36 P 105; In re Nutt's Texas. Thomson Bros. v. Lynn, 36
Estate, 181 Cal 522, 185 P 393. TexCivApp 79, 81 SW 330.
Iowa. Bailey v. LeMars, 189 la S7 Bowers, The Judicial Discre-
751, 179 NW 73. tion of Trial Courts, § 339.
§10
INSTRUCTIONS— RULES GOVERNING
12
CHAPTER 2
PROVINCE OF THE COURT AND THE JURY
Section
10. Relative functions of court and
jury.
11. Function of court to outline
issues and state theories and
contentions of parties.
12. Function of court to determine
legal principles applicable to
case.
13. Function of court to interpret
papers and documents.
14. Function of court to determine
competency and materiality
of evidence.
15. Direction of verdict in civil
cases.
16. Direction of verdict where evi-
dence undisputed.
16A. Effect of both parties moving
for directed verdict.
17. Direction of verdict in criminal
cases.
18. Direction of verdict where there
is scintilla of evidence.
19. Summing up evidence by court.
20. Inferences of fact from the evi-
dence.
21. Hypothetical statement of facts.
22. Disparaging comments on mer-
its of case.
23. Assumption of facts — General
rule and illustrations.
24 Assumption of facts — State-
ment of issues and claims.
25. Assumption of facts — Estab-
lished, uncontroverted or ad-
mitted facts.
26. Assumption of facts in criminal
cases.
27. Weight of contradictory evi-
dence for jury in civil cases.
28. Questions of fact and weight
of evidence in criminal cases.
Section
29. Comments and expressions of
opinion on the evidence — In
general.
30. Comments and expressions of
opinion as to preponderance
of evidence.
31. Comments and expressions of
opinion — Cases of contract
and tort.
32. Comments and expressions of
opinion — Criminal cases.
33. Comments and expressions of
opinion — Common-law rule
and rule in federal courts.
34. Weight of admissions of par-
ties.
35. Weight of expert testimony.
36. Weight of circumstantial and
negative evidence.
37. Credibility of witnesses for
jury.
38. Credibility of witnesses — Cor-
roborating or contradictory
evidence.
39. Credibility of witnesses — De-
meanor and character of wit-
nesses.
40. Credibility of witnesses — Inter-
ested witnesses.
41. Credibility of witnesses in crim-
inal cases.
42. Cautionary instructions.
43. Cautioning individual jurors.
44. Recommendations of mercy in
criminal cases.
45. Coercing jury to reach agree-
ment.
46. P'rivate communications of the
judge with the jury during
their deliberations.
§ 10. Relative functions of court and jury.
The functions of the court and jury are distinct and each is
supreme in its own domain. In most jurisdictions in this country
it is the exclusive province of the court to determine all ques-
tions of law arising in the progress of the case and upon the
13
PROVINCE OF COURT AND JURY
§10
whole case after evidence and argument, and It is the equally
exclusive province of the jury to determine all questions of
fact in the case. Hence an instruction or a request for an in-
struction which takes away from the court or jury a matter
within its exclusive province amounts to an invasion and is
erroneous.
In delineating the provinces of judge and jury, no state-
ment is made more categorically by the courts than that the
jury decides the facts and the judge decides the law and that
an invasion by either is ground for reversal.1 In another way.
1 Federal. Dunagan v. Appala-
chian Power Co., 23 F2d 395; Reid
v. Maryland Casualty Co., 63 F2d 10.
Alabama. Thomason v. Odum, 31
Ala 108, 68 AmDec 159; Riley v.
Riley, 36 Ala 496; International Har-
vester Co. v. Williams, 222 Ala 589,
133 S 270; Morgan-Hill Paving Co.
v. Fonville, 224 Ala 383, 140 S 575.
Instruction that certain acts would
not justify wife in assaulting hus-
band or put him at fault invades the
province of the jury. Johnson v.
Johnson, 201 Ala 41, 77 S 335, 6
ALR 1031.
Arkansas. Williams v. Carson, 126
Ark 618, 191 SW 401.
California. People v. Ivey, 49 Cal
56; People v. Fox, 43 CalApp 399,
185 P 211; Haney v. Takakura, 2
CalApp2d 1, 37 P2d 170.
Colorado. If there are any ques-
tions of fact which should be sub-
mitted to the jury, findings thereon
by the court are of no force. Walker
v. Bennett & Myers Inv. Co., 79
Colo 170, 244 P 465; McLagen v.
Granato, 80 Colo 412, 252 P 348.
Connecticut. Spring v. Nagle, 104
Conn 23, 131 A 744 (instruction held
erroneous in leaving to jury deter-
mination whether an enforceable
contract had been entered into by
the parties).
Florida. Baker v. Chatfield, 23
Fla 540, 2 S 822.
Georgia. Webb v. State, 149 Ga
211, 99 SE 630; Williams v. State,
24 GaApp 53, 99 SE 711.
Illinois. Pennsylvania Co. v. Con-
Ian, 101 111 93; People v. Kuchta, 296
111 180, 129 NE 528; Brownlie v.
Brownlie, 351 111 72, 183 NE 613;
Sugar v. Marinello, 260 IllApp 85.
Indiana. Riley v. Watson, 18 Ind
291; Automobile Underwriters v.
White, 207 Ind 228, 191 NE 335;
Chicago I. & L. Ry. Co. v. Pope, 99
IndApp 280, 188 NE 594.
Iowa. Bruckshaw v. Chicago, R.
L & P. R. Co., 173 la 207, 155 NW
273.
Kentucky. It was erroneous to
submit to jury question whether ar-
rest was lawful or unlawful. In-
demnity Ins. Co. of North America
v. Bonta, 217 Ky 265, 289 SW 231.
Michigan. People v. Williams, 208
Mich 586, 175 NW 187; Daleiden v.
Stevens, 235 Mich 111, 209 NW 94.
Mississippi. Myrick v. Wells, 52
Miss 149.
Missouri. State v. Magruder (Mo
App), 219 SW 701 (not necessary to
instruct in misdemeanor cases in
Missouri); Williams v. Connecticut
Fire Ins. Co. (Mo App), 47 SW2d
207.
The jury should not be allowed to
decide whether the facts in the case,
though undisputed, constitute a con-
tract. Clower v. Fidelity-Phenix Fire
Ins. Co., 220 MoApp 1112, 296 SW
257.
It is error to charge that expert
testimony is not binding on the jury
and that it does not tend to prove
the facts on which based. Brees v.
Chicago R. L & P. Ry. Co. (MoSup
Ct), 4 SW2d 426.
Nebraska. First Nat. Bank v.
Guenther, 125 Neb 807, 252 NW 395.
New Hampshire. Williams v. Bos-
ton & M. R. R. Co., 82 NH 253,
132 A 682.
New Jersey. Morril v. Morril, 104
10
INSTRUCTIONS — RULES GOVERNING
14
it is sometimes declared that whatever the judge decides is
law and whatever the jury decides is fact. Yet it has been
questioned whether these statements are wholly accurate.2
Rather than to state the maxim as an invariable formula, it
would seem that the safest approach is to investigate the cases
to determine what questions are for the jury and what ques-
tions are for the judge. Depending upon one's definition, it
may be possible to show a consistent division of functions.
It has been said that the power of the court is the power to
determine the law, while that of the jury is to determine the
facts.3 The court may not give instructions taking the deci-
sion of questions of fact from the jury,4 and neither may it
NJL 557, 142 A 337, 60 ALR 102.
New York. Puleo v. Stanislaw
Holding Corp., 126 Misc 372, 213
NTS 601.
Ohio. Cincinnati Gas & Elec. Co.
v. Archdeacon, 80 OhSt 27, 88 NE
125; Walsh v. J. R. Thomas Sons,
91 OhSt 210, 110 NE 454; Miami
Conservancy District v. Ryan, 104
OhSt 79, 135 NE 282; Crawford v.
Merrell, 5 OhApp 146, 25 OhCirCt
(N. S.) 537, 27 OhCirDec 104; Hough
v. Stone, 21 OhApp 444, 153 NE 313
(error in instruction for leaving- to
jury the interpretation of contract) ;
Zimmerman v. State, 42 OhApp 407,
182 NE 354; State v. Mueller, 6 OLR
542, 54 OhBull 94; Perry v. Edwards
Mfg. Co., 18 OhNP (N. S.) 293, 26
OhDec 301.
Court is without right to leave to
the jury determination of whether
speed ordinance is reasonable. Liber-
ty Highway Co. v. Callahan, 24
OhApp 374, 157 NE 708.
In an automobile collision case, it
is improper to leave to the jury the
determination of whether at the time
of the accident certain traffic laws
and ordinances were in effect. Pea-
ney v. Davis, 26 OhApp 414, 160
NE 486.
Oklahoma. Farmers' Guaranty
State Bank v. Bratcher, 112 Okl
254, 241 P 340; Board v. State ex
rel, Walcott, 117 Okl 10, 242 P 522;
Jarman v. State (OklCr), 47 P2d
220.
Oregon. White v. East Side Mill
Co., 84 Or 224, 161 P 969, 164 P 736.
Pennsylvania. Huston v. Barstow,
19 Pa 169.
South Carolina. Griggs-Paxton
Shoe Co. v. A. Friedham & Bro., 133
SC 458, 131 SE 620.
Tennessee. Brady v. Clark, 12 Lea
(80 Tenn) 323; Kendrick v. Cisco,
13 Lea (81 Tenn) 247.
Texas. Northern Texas Trac. Co.
v. Weed (TexCivApp), 297 SW 534;
Haynes v. Taylor (TexComApp), 35
SW2d 104, revg. (TexCivApp), 19
SW2d 850; Reed v. Hester (Tex
ComApp), 44 SW2d 1107, revg. (Tex
CivApp), 28 SW2d 219.
Washington. Underhill v. Steven-
son, 100 Wash 129, 170 P 354 (duty
of chauffeur under last clear chance
doctrine).
Virginia. Keen v. Monroe, 75 Va
424.
West Virginia. Stewart v. Black-
wood Elec. Steel Corp., 100 WVa
331, 130 SE 447; State v. Wamsley,
109 WVa 570, 156 SE 75.
2 Thayer, "Law and Fact in Jury
Trials," 4 Harv. L. Rev. 141 (1890-
91); Fox, "Law and Fact," 12 Harv.
L. Rev, 545 (1898-99).
3 Dimick v. Schiedt, 293 US 474,
79 LEd 603, 55 SupCt 296, 95 ALR
1150, affg. 70 F2d 558.
4 Federal. Bethlehem Shipbuilding
Corp., Ltd. v. West & Dodge Co.,
10 F2d 289.
Alabama. American Ry. Exp. Co.
v. Henderson, 214 Ala 268, 107 S
746.
Florida. Rivers v. Gainesville, 115
Fla 602, 155 S 844.
15 PROVINCE OF COURT AND JURY § 10
speculate with the rights of parties by submitting matters to
the jury where BO question of fact is involved.5 The jury is
as independent of the court in determining the facts as the
court is independent of the jury in determining and declaring
the law.6 The mere circumstances that the solution of certain
facts in a case may require a decision based upon scientific
knowledge and expert opinions does not convert the fact ques-
tions into matters of law or take from the jury the duty of
determining such facts.7 The trial judge is not justified in
taking from the jury the decision of a controverted fact in the
case, even though the judge may feel that the evidence upon
one side of a fact issue is so overwhelming that a verdict op-
posed to it ought not to be permitted to stand.8 In determining
whether a jury question results from the testimony, the court
is to consider the possibilities and not the probabilities in con-
nection with problems of credibility.9 Contradictions and in-
consistencies in the evidence are for the jury to untangle.10
An exception to the foregoing rule as to the invasion of the
province of the jury by the court, which may be more apparent
than real, occurs where the court directs a verdict for want of
evidence, or decides some of the operative facts. For example,
the questions of negligence11 and approximate cause12 are fre-
quently decided by the court "as a matter of law," where the
conceded facts are such that reasonable minds could come to
but one conclusion. The question in such a case is really one
Georgia, Central of Georgia E. 7 Travelers Indem. Co. v. Parkers-
Co, v. Radford, 34 GaApp 484, 130 burg Iron & Steel Co., 70 F2d 63.
SE 363. 8 Great Barrington Say. Bank v.
Illinois. Shannon v. Nightingale, Day, 288 Mass 181, 192 NE 533.
321 111 168, 151 NE 573. 9 Hardin v. Illinois Cent. E. Co.,
Maine. Hayden v. Maine Cent. R. 334 Mo 1169, 70 SW2d 1075.
Co., 118 Me 442, 108 A 681. i0Lazor v. Banas, 114 PaSuper
North Carolina. Rich v. Andrews 425, 174 A 817.
Mfg. Co., 190 NC 877, 130 SE 610 • * Patton v. Pennsylvania R. Co.,
(where the character of the charge 136 OhSt 159, 24 NE2d 597; Mahon-
to the jury was indicated by stat- ing Sav. & Trust Co, v. Kellner, 131
ute) OhSt 69, 1 NE2d 616; Porter v.
Oklahoma. Tapedo v. State, 34 Okl Toledo Terminal R. Co., 152 OhSt
Cr 165 245 P 897; Plemons v. State, 463, 90 NE2d 142; Johnson v. Citi-
53 OklCr 263, 10 P2d 285. zens Nat. Bank, 152 OhSt 477, 90
Pennsylvania. Kindell v. Franklin NE2d 145.
Sugar Ref. Co., 286 Pa 359, 133 A '2 Smiley v. Arrow Spring Bed
566 Co., 138 OhSt 81, 33 NE2d 3, 133
Texas Michaelson v. Green (Tex ALR 960; Orose v. Hodge Drive-It-
CivApp), 85 SW2d 1116. Yourself Co., Inc., 132 'OhSt 607, 9
sj C Penney Co., Inc. v. RoM- NE2d 671 j Drakulich v. Industrial
son, 128 OhSt 626, 193 NE 401. Comm., 137 OhSt 82, 27 NE2d 932.
«*State v. Harmon, 317 Mo 354,
296 SW 397.
10
INSTRUCTIONS — RULES GOVERNING
16
of law, for it amounts to a determination that no question of
fact has been presented for the jury to consider.13 Yet it may
be argued with more plausibility that when a judge directs a
verdict, he is finding that the facts necessary to the losing
party's case do not exist. Where the untruth or inherent im-
probability of the plaintiff's testimony is so apparent from the
physical facts disclosed in a case that no reasonable person
could accept it as true or possible, then the decision becomes
one of law for the court.14 This apparent exception occurs
only where there is an entire lack of evidence, and not where
there is some evidence which is contradicted and the determina-
tion of the question depends on the credibility of the witnesses.
In this situation the question is solely for the jury.15
Another apparent exception to the main rule occurs in those
cases where the question to be submitted or decided is so close
to the border line between law and fact that it might with pro-
1 3 United States. Parks v. Ross,
11 How. (54 US) 362, 13 LEd 730.
Federal. N. Jacobi Hdw. Co., Inc.
v. Vietor, 11 F2d 30; Berlin v.
United States, 14 F2d 497; Cum-
mings v. United States, 15 F2d 168.
Alabama. In a criminal case it is
for the court to say whether there
is any evidence of guilt. Barnett v.
State, 21 AlaApp 646, 111 S 318.
Iowa. Dubuque Fruit Co. v. C. C.
Emerson & Co., 201 la 129, 206
NW 672.
Kentucky. Insurance Co. of North
America v. Gore, 215 Ky 487, 284
SW 1107; Commonwealth v. Russell,
237 Ky 101, 34 SW2d 955 (holding
that the power of the court to direct
a verdict is the same in criminal as
in civil cases).
Montana. Morton v. Mooney, 97
Mont 1, 33 P2d 262.
New Mexico. Lane v. Mayer, 33
NM 28, 262 P 182.
New York. Gabler v. Isaac Gold-
man Co., 215 AppDiv 333, 213 NTS
342 (holding that the court has no
power to direct a verdict after the
jury has passed upon the case);
Weston v. State, 236 AppDiv 873,
260 NYS 914, reh. den. in 263 NYS
122.
Ohio. Pancero v. Pancero, 21 Oh
App 427, 152 NE 146.
1 4 Oliver v. Union Transfer Co.,
17 TennApp 694, 71 SW2d 478.
J s United States. Orleans v.
Platt, 99 US 676, 25 LEd 404; Mou-
lor v. American Life Ins. Co., 101
US 708, 25 LEd 1077.
Federal. Ng Sing v. United States,
8 F2d 919; Great Atlantic & Pacific
Tea Co. v. Chapman, 72 F2d 112.
But in Benash v. Business Mens
Assur. Co., 25 F2d 423, it was held
that if the evidence, though con-
flicting, is so conclusive in favor of
one party that the court ought to set
aside a verdict if rendered for the
other, the court should direct the
verdict.
Alabama. Gosa v. State, 21 Ala
App 269, 108 S 75, cert. den. in 214
Ala 391, 108 S 76.
California. In re Finkler's Estate,
3 Cal2d 584, 46 P2d 149.
Colorado. Freeman v. Boyer Bros.,
82 Colo 509, 261 P 864, 55 ALR 1285.
Florida. Atlantic Coast Line R.
Co. v. Roe, 91 Fla 762, 109 S 205;
W. B. Harbeson Lbr. Co. v. Cosson,
116 Fla 495, 156 S 482.
Kentucky. Sipes v. Commonwealth,
213 Ky 701, 281 SW 806; Stanley's
Admr. v. Duvin Coal Co., 237 Ky
813, 36 SW2d 630.
Massachusetts. Bacon v. Boston
Elev. R. Co., 256 Mass 30, 152 NE
35, 47 ALR 1100.
Michigan. Lau v. Fletcher, 104
Mich 295, 62 NW 357; Dirkes v.
Lenzen, 239 Mich 270, 214 NW 84.
17 PROVINCE OF COURT AND JURY § 10
priety be determined by either court or jury. In such cases it
is not error for the court to submit the question to the jury.86
It is a question for the court whether there is in the case suffi-
cient evidence on which to base a verdict, and for the jury as to
what fact finding the evidence leads.17 The conflict of eviden-
tiary facts requiring sending the case to the jury may exist
though all of the witnesses testifying be called by one party.18
Ordinarily mixed questions of law and fact are to be decided
by the jury under proper instructions from the court. t& Negli-
gence and contributory negligence are generally mixed questions
of law and fact.20
Negligence per se is generally for the court, but proximate
cause is generally for the jury.21 However, as to negligence
<$er se, the question of fact as to whether there has been
a violation of a specific requirement of law is for the jury in
the first instance.22
The allowance of exemplary damages is entirely within the
discretion of the jury and an instruction that a party is "en-
titled" to such damages invades the province of the jury.23 In
an action on an oral contract where the evidence is in conflict,
the court should not submit to the jury the question as to the
meaning of the contract, for it is the court's duty to determine
Missouri. Parrent v. Mobile & 0. to whether the mechanic was the
R. Co., 334 Mo 1202, 70 SW2d 1068. servant of the seller or of the buyer
Montana. Conrad Mercantile Co. under the contract. It was held not
v. Siler, 75 Mont 36, 241 P 617. error for the court to submit this
New Jersey. State v. Benton (NJ), question to the decision of the jury.
133 A 73, affd. in 103 NJL 714, 137 Dougherty v. Proctor & Schwartz,
A 919; Klucznik v. Shaikofsky, 6 317 Pa 363, 176 A 439.
NJMisc 652, 142 A 420. 1 7 pugh v. Ladner, 8 FSupp 950.
Ohio. Taylor v. Schlichter, 118 , 8 Ray v, Hutchison, 17 TennApp
OhSt 131, 160 NE 610; State v. Axe, 4?7 6g SW2d 94g
118 OhSt 514, 161 NE 536. ,' „ ~ " ~9 n, q, iqn q9
TV ^ ' -HIT tr • 1.4. w •D/iii Kroll v. Close, oZ Unbt lyu, »,£
Pennsylvania. McKnight v. Bell, * q _
168 Pa 50, 31 A 942; Jackson v. N^ 29 28 . LR A ( N S) 571.
Wafer, 87 PaSuper 83; Foster v. *° Cleveland p- &£• B. R. C<x v.
Wehr, 114 PaSuper 101, 173 A 712. Crawford, 24 OhSt 631; 15 AmEep
Texas. Stevens v. Karr, 119 Tex 633.
479 33 SW2d 725; Haywood v. State, 2I Smith v. Zone Cabs, 135 OhSt
102JTexCr 296, 277 SW 685. 415, 21 NE2d 336.
Washington. Coles v. McNamara, 22 Swoboda v. Brown, 129 OhSt
136 Wash 624, 241 P 1. 512, 196 NE 274.
1 6 Illustrative of such a case, a 23 Alabama. Birmingham Elec.
seller of machinery furnished to the Co. v. Shephard, 215 Ala 316, 110
buyer a mechanic to install the S 604.
machinery, the agreement being Missouri. Lewellen v. Haynie
partly written and partly oral. A (Mo), 287 SW 634.
person was injured by a fall of the Wisconsin. Marlatt v. Western
machinery, and in a damage action Union Tel. Co., 167 Wis 176, 167
that ensued there was an issue as NW 263.
§ 11 INSTRUCTIONS — RULES GOVERNING ' 18
the legal effect of the contract.24 It is error for the court to
leave to the jury the determination of what are the material
allegations of the plaintiff's petition by instructing that plain-
tiff must establish the material allegations.25
In some jurisdictions the jury are made judges of both the
law and the facts.26 In such a jurisdiction it is not strictly
proper to charge that they should impartially judge law as it
is found in the statutes, for it is plain that the law is not all
found in the statutes.27
§ 11. Function of court to outline issues and state theories and
contentions of parties.
Under the general rule, it is the exclusive function of the
court to outline the issues made by the pleadings, and it is the
duty of the jury to accept the court's interpretation of these
issues.
In submitting a case to the jury, it is the duty of the court
to separate and definitely state to the jury the issues of fact
made in the pleadings ; on the other hand, the jury must accept
the court's interpretation of these issues.28
Under this principle it is the duty of the court to point out
and state the contentions of the parties;29 to state the legal
24 Machen v. Budd Wheel Co., 294 Water Power Co. v. Thombs, 204
Pa 69, 143 A 482. Ala 678, 87 S 205.
2« Morris v. Davis (TexCivApp), California. Edson v. Mancebo, 37
3 SW2d 109. CalApp 22, 173 P 484.
so?6 £TO5Shx?V' ^ Ul ^ Texas- Arguments on the law ap-
o!VI S^™2LP^l%xV' Stat6' PKcable to a criminal case are ad-
25TTraA?P I™' t102 SM fr <«n ill Dressed to the sound discretion of
.oFTfVr^l6 Vi^et£ ^ m the court and not to the jury. Leon-
422, 161 NE 766. But m People v. d «,, ,fi TVxPr 84 iiQ qw
Bruner, 343 111 146, 175 NE 400 *f V' btate» 56 IexGr 84> 119 SW
(1931) the statute providing that i9 Ffid L H h g
juries shall be judges of the law and gg ^^ 799
facts was held unconstitutional. ."•„.,, ™. ««,
Indiana. Cole v. State, 192 Ind 29, ^ ^Jj*01?1** 5^ey v' Watson> 204
134 NE 867; Kellar v. State, 192 Ind CaT1J3?7» 2£8> ? 34,5- ^ .
S8 134 NE 881 Idaho. Packard v. O'Neil, 45 Id
Maryland. Delcher v. State, 161 42?> 2^2 P 881, 56 ALR 317.
Md 475, 158 A 37. Iowa. Monoghan v, Bowers, 185
The judge in this state cannot bind la 708, 171 NW 38; Conner v. Henry,
the jury by his definition of the 201 la 253, 207 NW 119 (holding
crime with which a defendant is that where there is but one issue in
charged nor as to the legal effect of the case a party has the right to an
evidence submitted. State v. Coblentz instruction particularly directing the
(Md), 180 A 266. jury's attention to that issue).
See also § 3, supra. Kentucky. American Ry. Exp. Co.
27 Bowen v. State, 189 Ind 644, v. McGee, 223 Ky 681, 4 SW2d 679.
128 NE 926. Massachusetts. Hadlock v. Brooks,
28 Alabama. Montgomery Light & 178 Mass 425, 59 NE 1009.
19
PROVINCE OF COURT AND JURY
11
effect of any circumstances offered;30 to define the claim of one
party, without expressing an opinion as to its soundness or
validity;31 to instruct on all the issues made by the testimony,
whether raised by the testimony of the plaintiff or the defend-
ant;32 to inform the jury as to a party's theory of the case and
show wherein his evidence has a tendency to substantiate such
theory,33 and under proper circumstances to state the converse
Nebraska. Johnson v. Nathan, 161
Neb 399, 73 NW2d 398.
Ohio. Parmlee v. Adolph, 28 Oh
St 10; Telinde v. Ohio Trac. Co., 109
OhSt 125, 141 NE 673; Baltimore &
0. R. Co, v. Lockwood, 72 OhSt 586,
74 NE 1071; Jones v. Peoples Bank
Co., 95 OhSt 253, 116 NE 34; Sixnko
v. Miller, 133 OhSt 345, 13 NE2d 914.
Oklahoma. Schaff v. Richardson,
120 Okl 70, 254 P 496; Tibbets &
Pleasant v. Benedict, 128 Okl 106,
261 P 551.
Pennsylvania. Snyderwine v. Mc-
Grath, 343 Pa 245, 22 A2d 644.
South Carolina. Bryce v. Cayce,
62 SC 546, 40 SE 948.
Wisconsin. McCann v. Ullman, 109
Wis 574, 85 NW 493.
30 Stem v. Crawford, 133 Md 579,
105 A 780.
31 Delaware. Richards v. Rich-
man, 5 Penn. (Del) 558, 64 A 238.
Kentucky. Louisville R. Co. v.
Jackey, 237 Ky 125, 35 SW2d 28.
Missouri. Houchin v. Hobbs (Mo
App), 34 SW2d 167.
New Mexico. Salazar v. Garde, 35
NM 353, 298 SW2d 661.
Ohio. Whitaker v. Michigan Mut.
Life Ins. Co., 77 OhSt 518, 83 NE
899.
Oklahoma. Pate v. Smith, 128 Okl
29, 261 P 189.
Pennsylvania. Thus, the court may
explain to the jury the contentions
of the prosecution in a murder case,
as long as he refrains from giving
an indication of his own views. Com-
monwealth v. Prescott, 284 Pa 255,
131 A 184.
Texas. Jones v. State, 86 TexCr
371, 216 SW 884.
West Virginia. Morris v. Parris,
110 WVa 102, 157 SE 40.
32 Alabama. Glover v. State, 21
AlaApp 423, 109 S 125.
California. Murero v. Reinhart
Lbr. Co., 85 CalApp 385, 259 P 494;
Graham v. Consolidated Motor
Transp. Co., 112 CalApp 648, 297 P
617.
Kentucky. Chesapeake & 0. R. Co.
v. Hay, 248 Ky 69, 58 SW2d 228.
Nebraska. Frazier v. Brown, 124
Neb 746, 248 NW 69.
New York. People v. Viscio, 241
AppDiv 499, 272 NYS 213.
North Carolina. State v. Graham,
194 NC 459, 140 SE 26.
Ohio. Morgan v. State, 48 OhSt
371, 27 NE 710; Fugman v. Trostler,
24 OhCirCt (N. S.) 521, 34 OhCirDec
746.
Oklahoma. Nonnamaker v. Kay
County Gas Co., 123 Okl 274, 25£ P
296.
Oregon. Stotts v. Wagner, 135 Or
243, 295 P 497.
Texas. Medford v. State, 86 Tex
Cr 237, 216 SW 175; Chicago, R. I.
& G. Ry. Co. v. Pipes (TexCivApp),
33 SW2d 818; Texas & Pacific Ry.
Co. v. Hancock (TexCivApp), 59
SW2d 313.
It is the court's duty to explain
the contentions of the prosecution
arising from the evidence in a crim-
inal case, as well as the theories of
the defendant. Jaggers v. State, 104
TexCr 174, 283 SW 527.
Virginia. Thomas v. Snow, 162 Va
654, 174 SE 837; Campbell v. Com-
monwealth, 162 Va 818, 174 SE 856.
Washington. Alexiou v. Nockas,
171 Wash 369, 17 P2d 911.
33 Kentucky. Equitable Life As-
sur. Soc. of United States v. Green,
259 Ky 773, 83 SW2d 478.
Michigan. Rogers v. Ferris, 107
Mich 126, 64 NW 1048.
§ 11 INSTRUCTIONS — RULES GOVERNING 20
of the theory expounded;34 to Instruct seriatim on each of sev-
eral issues of fact;35 and even to instruct that there is only one
issue before the jury where, although defendant's pleas raise
several issues, he admits upon the trial all of plaintiff's con-
tentions except one.36 It is error to read the pleadings to the
jury and then say to the jury, and not otherwise to define the
specific issues, that these constitute the pleadings in the case,
which make up the issue and from which they will try and
determine the controversy between the parties.37
The court cannot properly charge at length upon the theory
of the case in behalf of one of the parties and ignore the theory
of the other. There should be no one-sided charge.38
In a criminal case, the instructions are not sufficient unless
they present the case in such manner that the guilt or innocence
of the defendant will be determined by the jury from the trans-
action in question. So, if the court has charged the jury to
convict the accused if they find the stated essentials of the
crime charged, the converse charge should be given and a direc-
tion to acquit if they fail to find such essentials established.39
Where the court has properly stated to the jury the material
allegations of the indictment which the prosecution is required
to establish beyond a reasonable doubt, it is not error to in-
struct that a conviction should follow if all the material alle-
gations of the indictment have been proved beyond a reasonable
Missouri. Fenton v. Hart (Mo 36 De Graff enreid v. Menard, 103
App), 73 SW2d 1034. Ga 651, 30 SE 560.
Nebraska. Goldman v. State, 128 37 Baltimore & 0. R. Co. v. Lock-
Neb 684, 260 NW 373. wood, 72 OhSt 586, 74 NE 1071;
New Mexico. Southern Pacific Co. Jones v. Peoples Bank Co., 95 OhSt
v. Stephens, 36 NM 10, 6 P2d 934. 253, 116 NE 34; Simko v. Miller, 133
Ohio. Ross v. Hocking Valley R. OhSt 345, 13 NE2d 914.
Co., 40 OhApp 447, 178 NE 852. 38 Federal. United States v. Mes-
Oklahoma. Atchison, T. & S. P. R. singer, 68 F2d 234.
Co. v. Ridley, 119 Okl 138, 249 P California. Hellman v. Los An-
289; Kirschner v. Kirschner, 169 geles R. Corp., 135 CalApp 627, 27
Okl 129, 36 P2d 297. P2d 946, 28 P2d 384.
Texas. Hoover v. Smallwood (Tex Delaware. Island Express v.
CivApp), 45 SW2d 702; Green v. Frederick, 5 W. W. Harr, (35 Del)
Texas & Pacific Ry. Co. (TexCom 569, 171 A 181.
App), 81 SW2d 669, revg. (TexCiv Idaho. Nash v. Meyer, 54 Idaho
App), 50 SW2d 353. 283, 31 P2d 273.
34 Edwards v. State, 125 TexCr 3 9 Federal. Little v. United States,
427, 68 SW2d 1049. 73 F2d 861.
35 Alabama. Morris v. Corona Coal Missouri. State v. Gillum, 336 Mo
Co., 215 Ala 47, 109 S 278. 69, 77 SW2d 110; State v. Buckner
Missouri. Coleman v. Drane, 116 (Mo), 80 SW2d 167.
Mo 387, 22 SW 801. Ohio. Daugherty v. State, 41 Oh
Texas. Hulen v. Ives (TexCiv App 239, 180 NE 656.
App), 281 SW 350.
21 PROVINCE OF COURT AND JURY § 12
doubt.40 Where a positive instruction for the prosecution has
been given, it is then proper that the converse of the proposi-
tion be given for the defendant.4 1 In a criminal case, it is proper
to instruct that the case should be decided upon the law and
the evidence without regard to the personal ideas of the jurors
as to what the law ought to be.42 In a prosecution for murder,
if the court explains to the jury the law applicable to principals
in the commission of the offense, failure to charge the converse
is reversible error.43 Unless it is necessary in order to present
the theory of either the prosecution or the defense, the court
need not give an instruction for which there is no support in
the evidence.44
But it is to be remembered that a party, either in a criminal
or civil case, may not demand an instruction on a matter which
he may deem important unless it is legally essential for him.
A matter may be important in the judgment of the party with-
out being legally essential.45
§ 12. Function of court to determine legal principles applicable
to case.
It is the exclusive function of the court to determine and de-
clare the general principles of law applicable to a case on trial
and not to submit questions of law to the jury.
Since it is the court's function to determine questions of law,
it is the positive duty of the court to refrain from submitting
questions of law to the jury.46 The rule does not apply, of
40 McCaughey v. State, 156 Ind v. Chambers, 226 Ala 192, 146 S 524;
41, 59 NE 169. Greenwood Cafe v. Walsh, 15 Ala
4 1 State v. Hill, 329 Mo 223, 44 App 519, 74 S 82.
SW2d 103. Arkansas. The court may in its
42 People v. Stone, 154 IllApp 7; instructions limit the jury to a con-
State v. Taylor, 57 WVa 228, 50 SE sideration of the only ground of
247. negligence alleged in a damage ac-
43 Cammack v. State, 102 TexCr tion as long as the jury are left free
579, 278 SW 1105. to determine the question of fact
44 Dalrymple v. Commonwealth, whether the allegation is sustained
215 Ky 25, 284 SW 104. by the evidence. St. Louis-San Fran-
45 Haefeli v. Woodrich Engineer- cisco R. Go. v. Pearson, 170 Ark 842,
ing Co., 255 NY 442, 175 NE 123; 281 SW 910.
State v. Samaha, 93 NJL 482, 108 California. Tompkins v. Montgom-
A 254. ery, 123 Cal 219, 55 P 997; W.
46 Federal. Dunagan v. Appala- P. Boardman Co. v. Fetch, 186 Cal
chian Power Co., 23 F2d 395. 476, 199 P 1047; Parker v. James E.
Alabama. Dominick v. Randolph, Granger, Inc. (CalApp), 39 P2d 833.
124 Ala 557, 27 S 481; Jeffries v. Thus, in an action for personal
Pitts, 200 Ala 201, 75 S 959; United injuries sustained by being thrown
States Fidelity & Guaranty Co. v. from defendant's vehicle, an instruc-
Millonas, 206 Ala 147, 89 S 732, 29 tion was properly refused which told
ALR 520; Metropolitan Life Ins. Co. the jury that if they found that a
§12
INSTRUCTIONS — RULES GOVERNING
22
course, In those states where in either civil or criminal cases,
or in both, the jury is made the judge of both law and facts.47
certain companion of the plaintiff,
"by reason of having hired the team,
wagon and driver from the defend-
ant, had become, as it were, the own-
er or proprietor of said team, wagon
and driver for that day," then the
defendant was not responsible. The
effect of the instruction would have
been to submit to the jury a prop-
osition of law rather than of fact.
Tompkins v. Montgomery, 123 Cal
219, 55 P 997.
Colorado. Small v. Clark, 83 Colo
211, 263 P 933.
District of Columbia. Reid v. An-
derson, 13 AppDC 30.
Georgia. TeLfair County v. Webb,
119 Ga 916, 47 SE 218.
Illinois. Harmison v. Fleming, 105
IllApp 43; Bradley v. Schrayer, 204
IllApp 231; Pedroni v. Illinois Third
Vein Coal Co., 205 IllApp 119 (mat-
ter of law whether under the evi-
dence there was a violation of a
statute).
It is not permissible for the court
to state to the jury the conditions
under which a purported confession
of the accused in a criminal case is
inadmissible. People v. Costello, 320
111 79, 150 NE 712.
Indiana. Jackson v. Rutledge, 188
Ind 415, 122 NE 579 (matter of law
whether rules of employer were in
force and effect); Trainer v. State,
198 Ind 502, 154 NE 273.
Iowa. Hanley v. Fidelity & Cas-
ualty Co., 180 la 805, 161 NW 114;
Spitler v. Perry Town Lot & Imp.
Co., 189 la 709, 179 NW 69; In re
Dolmage's Estate, 204 la 231, 213
NW 380.
A defendant in a criminal case
has no right to have his theories in
the case submitted to a jury where
they are based wholly on contentions
of law. State v. Brundage, 200 la
1394, 206 NW 607.
Kansas. Shrader v. McDaniel, 106
Kan 755, 189 P 954.
Kentucky. Sanders v. Common-
wealth, 176 Ky 228, 195 SW 796;
Louisville Bridge Co. v. Iring, 180
Ky 729, 203 SW 531; Black v. Dav-
enport, 189 Ky 40, 224 SW 500; Penn
Furn. Co. v. Katliff, 194 Ky 162, 238
SW 393; Perry's Admx. v. Inter-
Southern Life Ins. Co., 254 Ky 196,
71 SW2d 431; Smith v. Cornett, 18
KyL 818, 38 SW 689.
Maryland. Roth v. Shupp, 94 Md
55, 50 A 430; Murrell v. Culver, 141
Md 349, 118 A 803; Bowie v. Eve-
ning News Co., 151 Md 285, 134 A
214.
Massachusetts. Goodrich v. Davis,
11 Mete. (52 Mass) 473; Horan v.
Boston Elevated R. Co., 237 Mass
245, 129 NE 355.
Michigan. Anderson v. Thunder
Bay River Boom Co., 57 Mich 216,
23 NW 776.
Missouri. Hoagland Wagon Co. v.
London Guarantee & Ace. Co., 201
MoApp 490, 212 SW 393; Niehaus v.
Gillanders (MoApp), 184 SW 949;
Bollmeyer v. Eagle Mill & Elev. Co.
(MoApp), 206 SW 917; Stewart v.
Chicago, B. & Q. R. Co. (MoApp),
222 SW 1029; Marden v. Radford
(MoApp), 84 SW2d 947 (holding that
question of law had not been sub-
mitted to the jury).
Montana. Gallick v. Bordeaux, 31
Mont 328, 78 P 583,
New Jersey. State v. Lupton, 102
NIL 530, 133 A 861.
New York. lerardi v. Reisberg &
Reiner, Inc. (AppDiv), 279 NYS 963.
Ohio. Montgomery v. State, 11 Oh
424; State v. Cowles, 5 OhSt 87;
Miami Conservancy Dist. v. Ryan,
104 OhSt 79, 135 NE 282.
Oklahoma. Missouri, 0. & G. R.
Co. v. Davis, 54 Okl 672, 154 P 503.
Texas. Houston & T. C. R. Co. v.
Hubbard (TexCivApp) 37 SW 25;
Missouri, I. & T. Ry. Co. of Texas
v. Norris (TexCivApp), 184 SW 261;
Varnes v. Dean (TexCivApp), 228
SW 1017.
Virginia. Keen v. Monroe, 75 Va
424.
West Virginia. Lawrence's Admr.
v. Hyde, 77 WVa 639, 88 SE 45.
47 See Witt v. State, 205 Ind 499,
185 NE 645 and § 3, supra.
23 PROVINCE OP COURT AND JURY § 12
Thus in an action to recover damages for false imprison-
ment, a requested instruction submitting to the jury the ques-
tion whether "plaintiff was illegally imprisoned" was rightly
refused, as requiring the jury to determine a matter of law.48
So, in a civil action for assault and battery, a question of law
was submitted to the jury by an instruction that the burden was
on defendant to prove justification, where the instruction also
left it for the jury to determine what facts would satisfy the
law and constitute a good defense.49 It is error to submit to the
jury the question whether a passenger in an automobile involved
in a collision was a guest under the state vehicle act.50 In a
criminal case, it is a question of law as to what is prima facie
evidence of guilt, and this question should not be submitted
to the jury.51
The court should make plain to the jury the issues they are
to try, and an instruction which refers the jury to the pleadings
is faulty.52
Generally, there can be no valid objection to an instruction
which merely empowers the jury to determine whether the proof
adduced sustains the issue made by the pleadings but does not
leave the jury to determine the materiality or the legal effect
of any averments in the declaration.53 So, while a charge, stand-
ing alone, which tells the jury they may determine whether
plaintiff "has a right to recover in this action" may be open to
48 Roth v. Shupp, 94 Md 55, 50 tiff's petition for a specification of
A 430. the alleged acts of negligence upon
49 Barnhill v. Poteet (MoApp), which the action is based. Elders v.
211 SW 106. Missouri Pacific R. Co. (MoApp),
soRocha v. Hulen (CalApp), 44 280 SW 1048.
P2d 478. It has been held that it is not
5 ' State v. Donovan, 77 Utah 343, error to refer the jury to the plead-
294 P 1108. ings unless for the purpose of di-
52 Georgia. See Georgia Power recting their attention to the facts.
Co. v. Whitlock, 48 GaApp 809, 174 Mackey v. First Nat. Bank (Mo
SE 162. App), 293 SW 66.
Illinois. Randall Dairy Co. v. Peve- Oklahoma. Particularly is it re-
ly Dairy Co., 274 IllApp 474. versible error to refer the jury to
Iowa. Erb v. German-American the pleadings for ascertaining the
Ins. Co. of New York, 112 la 357, 83 issues, where the pleadings are
NW 1053. voluminous and complicated. Lam-
Mississippi. Gurley v. Tucker, 170 bard-Hart Loan Co. v. Smiley, 115
Miss 565, 155 S 189. Okl 202, 242 P 212.
Missouri. Markowitz v. Markowitz Texas. Hewitt v. Buchanan (Tex
(MoApp), 290 SW 119; Priestly v. CivApp), 4 SW2d 169; Standard Ace.
Laederich (MoApp), 2 SW2d 631; Ins. Co. v. Cherry (TexCivApp), 36
Bullmore v. Beeler (MoApp), 33 SW2d 807.
SW2d 161. But see Elstroth v. Kar- 53 Central Ry. Co. v. Bannister,
renbrock (MoApp), 285 SW 525. 195 111 48, 62 NE 864; Sitts v. Ban-
In a personal injury action, It^is iel (MoApp), 284 SW 857.
error to refer the jury to the plain-
§ 13 INSTRUCTIONS — RULES GOVERNING 24
criticism, it cannot be prejudicial where a different part of the
charge instructs the jury that "the court is the exclusive judge
of the law governing the case and you are the exclusive judges
of the facts from the testimony in the case and of the credibility
of the witnesses."54 The judge may state the reasons for legal
rules, provided he leaves the determination of issues of fact to
the jury.55 The court did not encroach upon the functions of the
jury to determine the facts by stating that home brew contain-
ing in excess of a stated percentage of alcohol would be deemed
intoxicating.56
§ 13. Function of court to interpret papers and documents.
Generally, it is the exclusive function of the court to interpret
and declare the meaning of papers and documents. The inter-
pretation of these papers and documents may not be submitted
to the jury.
Interpretation, properly used, is the determination of the
meaning of language by examining the words used and relevant
surrounding circumstances. On the other hand, construction
determines the legal effect of the language as interpreted. The
courts do not always observe the distinction in their usage of
the words. The legal effect of words, a question of law, is clearly
for the judge to determine. The meaning of language, interpre-
tation, would seem to be a question of fact, since the meaning
finally decided upon was in fact given by one of the parties in-
volved. If this is so, whose function interpretation is, should
be settled as any other question of fact. That is, if the evidence
leads reasonable minds to but one conclusion, then the issue is
taken away from the jury. Although the courts may not always
be articulated in their reasoning on this problem, perhaps the
cases can be reconciled on this basis.
Many cases broadly state that it is the exclusive function of
the court to construe and declare the meaning of papers and doc-
uments.57 Included as papers and documents are letters,58 tele-
54 Gillett v. Coruin, 7 Kan 156. Arkansas. Pope County Real Es-
55 Flick v. Ellis-Hall Co., 138 tate Co. v. Clifton, 148 Ark 655, 232
Minn 364, 165 NW 135. SW 579.
56Topeka v. Heberling, 134 Kan Connecticut. Wladyka v. Water-
330, 5 P2d 816. bury, 98 Conn 305, 119 A 149; In re
57 Federal. Burrows <& Kenyon, Spurr's Appeal, 116 Conn 108, 163
Inc. v. Warren, 9 F2d 1; Union State A 608.
Bank & Trust Co. v. Northwestern Delaware. Schilansky v. Merchants
Life Ins. Co., 55 F2d 1070. & Mfrs. Fire Ins. Co., 4 Penn. (Del)
Whether instrument complies with 293, 55 A 1014.
statute is question of law for the District of Columbia. O'Brien v.
court. Missouri, K. & T. Ry. Co. Pabst Brew. Co., 31 AppDC 56.
v. United States, 178 F 15.
25
PROVINCE OF COURT AND JURY
§13
grams, S9 contracts,60 corporate charters,61 leases, 62 mort-
gages,63 deeds of trust,64 deeds,65 tax titles,66 wills,67 plead-
Georgia. McCullough Bros. v.
Armstrong, 118 Ga 424, 45 SE 379.
Illinois. Warner Constr. Co. v.
Lincoln Park Comrs., 278 IllApp 42.
Indiana. Zaharek v. Gorczyca, 87
IndApp 309, 159 NE 691, 161 NE
683.
Maine. Libby v. Deake, 97 Me 377,
54 A 856.
Maryland. Bond v. Humbird, 118
Md 650, 85 A 943.
Massachusetts. Jacobson v. Jacob-
son, 334 Mass 658, 138 NE2d 206,
Ohio. Blackburn v. Blackburn, 8
Oh 81; Townsend v. Lorain Bank,
2 OhSt 345; Potts v. Park Inv. Co.,
27 OhApp 235, 161 NE 40.
Oregon. Abramson v. Brett, 143
Or 14, 21 P2d 229.
South Carolina. Thompson v. Fam-
ily Protective Union, 66 SC 459, 45
SE 19; Bedenbaugh v. Southern R.
Co., 69 SC 1, 48 SE 53; Miller v.
Atlantic Coast Line R. Co., 94 SC
388, 77 SE 1111.
Texas. Blair v. Baird, 43 TexCiv
App 134, 94 SW 116; Marsh v. Phil-
lips (TexCivApp), 144 SW 1160;
Sherman Slaughtering & Rendering
Co. v. Texas Nursery Co. (TexCiv
App), 224 SW 478; Moore v. Wooten
(TexComApp), 280 SW 742, revg.
(TexCivApp), 265 SW 210.
Vermont. State v. White, 70 Vt
225, 39 A 1085 (abbreviations con-
tained in documents); M ell en v.
United States Health & Ace. Ins.
Co., 85 Vt 305, 82 A 4.
Virginia. Norwich Lock Mfg. Co.
v. Hockaday, 89 Va 557, 16 SE 877;
Baker Matthews Lbr. Co. v. Lincoln
Furn. Mfg. Co., 148 Va 413, 139 SE
254; Buchanan v. Norfolk Southern
R. Co., 150 Va 17, 142 SE 405.
Washington. State v. Comer, 176
Wash 257, 28- P2d 1027.
58 Barcus v. Wayne Automobile
Co., 162 Mich 177, 127 NW 23;
Anderson v. Frischkorn Real Estate
Co., 253 Mich 668, 235 NW 894;
Thompson v. Family Protective Un-
ion, 68 SC 459, 45 SE 19.
fi9 D. L. Fair Lbr. Co. v. Dewey,
241 Mich 573, 217 NW 776.
60 United States. Goddard v. Fos-
ter, 17 Wall. (84 US) 123, 21 LEd
589; Hamilton v. Liverpool, London
& Globe Ins. Co., 136 US 242, 34
LEd 419, 10 SupCt 945; Hughes v.
Dundee Mtg. Co., 140 US 98, 106,
35 LEd 354, 11 SupCt 727.
Arizona. Timmons v. McKinzie, 21
Ariz 433, 189 P 627.
California. O'Connor v. West Sac-
ramento Co., 189 Cal 7, 207 P 527;
Weil v. California Bank, 219 Cal
538, 27 P2d 904.
Connecticut. Brown Bag Filling
Mach. Co. v. United Smelting &
Aluminum Co., 93 Conn 670, 107
A 619.
Georgia. McCullough Bros. v. Arm-
strong, 118 Ga 424, 45 SE 379.
Kentucky. E. F. Spears & Sons v.
Winkle, 186 Ky 585, 217 SW 691
(what constitutes breach of con-
tract is a question of law) ; Elkhorn
& B. V. R. Co. v. Dingus, 187 Ky
812, 220 SW 1047.
Maine. Libby v. Deake, 97 Me 377,
54 A 856.
Michigan. Keystone Coal & Coke
Co. v. Forrest, 213 Mich 76, 181
NW 30.
Missouri. Black River Lbr. Co. v.
Warner, 93 Mo 374, 6 SW 210; Wes-
ton ex rel. Male'y & Kelly Contract-
ing Co. v. Chastain (Mo App), 234
SW 350.
Ohio. Farmers Ins. Co. v. Ross &
Lennan, 29 OhSt 429.
Oregon. Wade v. Johnson, 111 Or
468, 227 P 466.
Texas. Blair v. Baird, 43 TexCiv
App 134, 94 SW 116.
61 Norwich Lock Mfg. Co. v.
Hockaday, 89 Va 557, 16 SE 877.
62 Indiana. Miller v. Citizens
Bldg. & Loan Assn., 50 IndApp 132,
98 NE 70.
Pennsylvania. Dumn v. Rother-
mel, 112 Pa 272, 3 A 800.
Texas. Midkiff v. Benson (TexCiv
App), 235 SW 292; Booth v. Camp-
bell (TexCivApp), 240 SW 559.
63 United States. United States
v. Hodge, 6 How. (47 US) 279, 12
LEd 437.
§13
INSTRUCTIONS — RULES GOVERNING
26
ings,68 judgments,69 ordinances,70 life insurance policies,71 and
domestic statutes.72
The question of the applicability of these instruments to the
facts in issue is, however, a question of fact for the jury, where
their applicability depends on the facts.73 The pertinent rule
has been expressed to be that it is for the court to determine
whether language involved can have the effect attributed to it
by a party, and finally for the jury to determine whether it in
fact had that effect.74 Again the question may be for the jury
where the instrument is ambiguous and the meaning sought is
New York. St. John v. Bumpstead,
17 Barb. (NY) 100.
Texas. J. M. Eadford Groc. Co.
v. Jamison (TexCivApp), 221 SW
998 (chattel mortgage).
The court must determine as a
matter of law the sufficiency of the
description of property in a chattel
mortgage. Chapman v. Head (Tex
CivApp), 279 SW 906.
64 City Bank Farmers Trust Co.
v. Ernst, 263 NY 342, 189 NE 241;
Gibson v. Morris (TexCivApp), 47
SW2d 648.
65 United States. Brown v. Huger,
21 How. (62 US) 305, 16 LEd 125.
Alabama. Humes v. Bernstein, 72
Ala 546.
Massachusetts. Eddy v. Chace, 140
Mass 471, 5 NE 306.
Missouri. Garrett v. Limes (Mo
App), 209 SW 295.
Ohio. Cleveland Co-op. Stove Co.
v. Cleveland & P. R. Co., 23 OhCir
Ct (N. S.) 260, 34 OhCirDec 236.
Oregon. Johnson v. Shively, 9 Or
333.
South Carolina. Metz v. Metz, 106
SC 514, 91 SE 864.
Vermont. Hodges v. Strong, 10
Vt 247.
66 Johnson v. Scott, 205 Mass 294,
91 NE 302.
67 Georgia. Downing v. Bain, 24
Ga 372.
Mississippi. Sartor v. Sartor, 39
Miss 760; Magee v. McNeil, 41 Miss
17, 90 AmDec 354.
New York. Underhill v. Vander-
voort, 56 NY 242.
North Carolina. Green v. Collins,
28 NC 139.
68 Laughlin v. Hopkinson, 292 111
80, 126 NE 591; Cowell v. Employ-
ers Indem. Corp., 326 Mo 1103, 34
SW2d 705.
69 Young v. Byrd, 124 Mo 590,
28 SW 83, 46 AmSt 461.
70 Federal. Sadler v. Peoples, 105
F 712.
Georgia. Idle Hour Club v. Rob-
inson, 42 GaApp 650, 157 SE 125.
Illinois. Geschwindner v. Comer,
222 IllApp 417.
Indiana. Indianapolis Trac. &
Terminal Co. v. Howard, 190 Ind 97,
128 NE 35; Indianapolis Trac. &
Terminal Co. v. Smith, 190 Ind 698,
128 NE 38.
Missouri. Hogan v. Fleming, 317
Mo 524, 297 SW 404; Williams v.
St. Joseph, 166 MoApp 299, 148 SW
459.
7 * Cope v. Central States Life Ins.
Co. (Mo App), 56 SW2d 602.
72 United States. South Ottawa
v. Perkins, 94 US 260, 24 LEd 154.
California. Parker v. James E.
Granger, Inc. (CalApp), 39 P2d 833.
Kansas. Hutchings, Sealy & Co.
v. Missouri, K. & T. R. Co., 84 Kan
479, 114 P 1077, 41 LEA (N. S.) 500.
New York. Winchell v. Camillus,
109 AppDiv 341, 95 NYS 688.
Tennessee. Gallatin Tpk. Co. v.
State, 16 Lea (84 Tenn) 36.
Washington. Ongaro v. Twohy, 57
Wash 668, 107 P 834 (no dispute as
to law of sister state).
73 Miller v. Atlantic Coast Line
R. Co., 94 SC 388, 77 SE 1111.
74 McKnight v. United States, 78
F2d 931.
27
PROVINCE OF COURT AND JURY
18
that of the parties as shown by their conduct and transactions.78
The question may be for the jury where the effect of the instru-
ment depends, not merely on its construction, but on collateral
facts and circumstances.76 So, where the question of hand-
writing on a document in evidence is in dispute, and another
writing has been submitted for purposes of comparison, it is for
the jury to determine whether the disputed document is gen-
uine.77
The question of the existence of a foreign law is always one
of fact, but not usually for the jury, and its interpretation is for
the court after its existence is established by proof.78 The law
of a foreign country is not judicially recognized, but must be
proved like any other fact. The proof of the law of a foreign
country may be by the introduction in evidence of its statutes
and decisions, or by the testimony of experts learned in the law,
or by both. If the law is found in a single statute or in a single
decision, the construction of it, like that of any other writing,
is a question of law for the court.79 It is said, however, that
where the foreign law "is to be determined by considering numer-
?* Cleveland, C., C. & St. L. R.
Co. v. Gossett, 172 Ind 525, 87 NE
723; Dykema v. Muskegon Piston
King Co., 348 Mich 129, 82 NW2d
467.
7 6 Fuller v. Smith, 107 Me 161,
77 A 706; 0-N-L Mills, Inc. v. Union
Pacific R. Co., 151 Neb 692, 39
NW2d 501.
77poole v. Beller, 104 WVa 547,
140 SE 534, 58 ALR 207.
78 Kentucky. Collins v. Norfolk
& W. R. Co., 152 Ky 755, 154 SW 37.
Massachusetts. Ely v. James, 123
Mass 36.
Nebraska. United Bank & Trust
Co. v. McCullough, 115 Neb 327, 212
NW 762.
New Hampshire. Baribault v. Rob-
ertson, 82 NH 297, 133 A 21.
New Jersey. Robins v. Mack In-
ternational Motor Truck Corp., 113
NJL 377, 174 A 551.
New York. Osgood Co. v. Wilkin-
son, 265 NY 70, 191 NE 779, revg.
239 AppDiv 676, 268 NYS 802;
Schweitzer v. Hamburg-Amerikan-
ische Packetfahrt Actien Gesell-
schaft, 149 AppDiv 900, 134 NYS
812,
North Carolina. Howard v. How-
ard, 200 NC 574, 158 SE 101.
Ohio. Whelan v. Kinsley, 26 OhSt
131; Evans v. Reynolds, 32 OhSt
163; Larwell v. Hanover Sav. Fund
Soc., 40 OhSt 274; Alexander v.
Pennsylvania Co., 48 OhSt 623, 30
NE 69.
The failure to submit to the jury
an issue regarding the law of an-
other state is not error when such
foreign law was not pleaded. Lrutton
v. Mount Ida School, 44 OhApp 322,
185 NE 429, 37 OLR 579.
Wisconsin. New York Life Ins. Co.
v. State, 192 Wis 404, 211 NW 288,
212 NW 801.
Vermont. Jenness v. Simpson, 84
Vt 127, 78 A 886; Rainey v. Grand
Trunk R. Co., 84 Vt 521, 80 A 723;
Bradley v. Bentley, 85 Vt 412, 82 A
669.
79 California. Hawi Mill & Plan-
tation Co., Ltd. v. Finn, 82 CalApp
255, 255 P 543.
Massachusetts. Elec. Welding Co.
v. Prince, 200 Mass 386, 86 NE 947,
128 AmSt 434; Coe v. Hill, 201 Mass
15, 86 NE 949; Lennon v. Cohen, 264
Mass 414, 163 NE 63.
Ohio. Alexander v. Pennsylvania
Co., 48 OhSt 623, 30 NE 69.
§14
INSTRUCTIONS — RULES GOVERNING
28
ous decisions which may be more or less conflicting, or which
bear upon the subject only collaterally, or by way of analogy,
and where inferences may be drawn from them, the question to
be determined is one fact and not of law."80 After a foreign
statute has been admitted in evidence the construction of it is
within the province of the court.81
The determination of the existence of facts which bring a
case within the operation of federal statutes, when denied by
answer or reply, is a question for the jury.82
§ 14. Function of court to determine competency and materiality
of evidence.
The question of the competency and materiality of evidence is
for the court alone and may not be submitted to the jury.
The competency and admissibility of evidence is for the court,
and not for the jury, to decide.83 It is another statement of the
rule to say that the question of the admissibility of evidence is
80 Ames v. McCamber, 124 Mass
85.
81 Masocco v, Schaaf, 234 AppDiv
181, 254 NYS 439; Alexander v.
Pennsylvania Co., 48 OhSt 623, 30
NE 69.
82 Erie E. Co. v. Welsh, 89 OhSt
81, 105 NE 189.
83 Federal. Cooper v. United
States, 16 P2d 830; Eierman v.
United States, 46 F2d 46; United
States v. Becker, 62 F2d 1007.
Alabama. Leahy v. State, 214 Ala
107, 106 S 599.
Arizona. Miller Cattle Co. v. Fran-
cis, 38 Ariz 197, 298 P 631.
Arkansas. McGill v. Miller, 183
Ark 585, 37 SW2d 689.
Florida. Atlanta & St. A. B. R.
Co. v. Kelly, 77 Fla 479, 82 S 57.
Illinois. People v. Franklin, 341
111 499, 173 NE 607
Indiana. Towns end v. State, 2
Blackf. (Ind) 151.
Louisiana. State v. Hayes, 162 La
917, 111 S 327.
Michigan. People v. Hurst, 41 Mich
328, 1 NW 1027.
Minnesota. The court may direct
attention of jury to the relevancy of
the evidence to particular issues but
must leave them free to determine
the issue. Flick v. Ellis-Hall Co.,
138 Minn 364, 165 NW 135.
Nebraska. Clarence v. State, 86
Neb 210, 125 NW 540.
New Hampshire. Whether photo-
graph of murder victim would be of
aid to jury in considering evidence
is a question for the court. State v.
Mannion, 82 NH 518, 136 A 358.
North Carolina. State v. White-
ner, 191 NC 659, 132 SE 603;
Kitchen Lbr. Co. v. Tallassee Power
Co., 206 NC 515, 174 SE 427; Lin-
coln v. Atlantic Coast Line R. Co.,
207 NC 787, 178 SE 601.
Ohio. Crew v. Pennsylvania R.
Co., 21 OhApp 143, 153 NE 95;
Barnes v. State, 15 OhCirCt 14, 8
OhCirDec 153.
Oklahoma. Jacobs v. State, 35
OklCr 179, 249 P 435.
The materiality of testimony is a
question of law for the court as a
general rule, but there are occasions
where the materiality depends upon
disputed facts and it then becomes
a mixed question of law and fact,
and should be submitted to the jury
under proper instructions. Coleman
v. State, 6 OklCr 252, 118 P 594.
Oregon. State v. Roselair, 57 Or
8, 109 P 865.
South Dakota. State v. Carlisle,
30 SB 475, 139 NW 127.
29 PROVINCE OF COURT AND JURY § 14
for the court and its weight and comparative value for the
jury.84
It is the prerogative and duty of the court to determine the
qualification of a witness, but his credibility is for the jury.85
The competency of a proposed witness to testify is a question
of law for the court to decide and for such purpose the court
may conduct an examination of such witness out of the hearing
of the jury. However, where the competency of a witness
depends upon the existence of a certain fact, which is contro-
verted, the witness should be permitted to testify, and the jury
instructed that unless such disputed fact is established by a
preponderance of the evidence, his testimony should be dis-
regarded.86 Whether there is any evidence of a fact is for the
court, and whether testimony tends to prove a fact is for the
jury.87
The competency of an insane person to testify as a witness
lies in the discretion of the trial judge and a reviewing court
will not disturb the ruling thereon where there is no abuse of
discretion.88 When a witness is precluded from testifying on the
ground of his alleged incompetency as a witness and not on the
ground that his proposed testimony is incompetent, his exclusion,
if erroneous, will be presumed to be prejudicial, and it is not
necessary to proffer his proposed testimony in order to challenge
or review the action of the court as to his exclusion.89
In criminal cases, it is for the court to determine whether a
sufficient foundation has been laid to admit testimony of
84 Federal. Ford v. United States, Texas. Newton v. State, 62 Tex
10 F2d 339, affd. in 273 US 593, 71 Cr 622, 138 SW 708.
LEd 793, 47 SupCt 531; United 8S Smith v. Rarriek, 151 OnSt
States v. Sands, 14 F2d 670. 201, 85 NE2d 101; 8 ALR2d 1087;
Alabama. Ward v. State, 4 Ala Kornreich v. Industrial F. Ins. Co.,
App 112, 58 S 788. 132 OhSt 78, 5 NE2d 153; Schnei-
California. People v. Douglas derman v. Interstate Transit Lines,
(CalApp), 48 P2d 725. Inc., 394 111 569, 69 NE2d 293 [same
Georgia. Rouse v. State, 136 Ga case, 401 111 172, 81 NE2d 861].
356, 71 SE 667; Smalls v. State, 6 86 Smith v. Barrick, 151 OhSt 201,
GaApp 502, 65 SE 295. 85 NE2d 101. See also, Hastings
Indiana. Fehlman v. State, 199 v. Allen, 14 Oh 58, 45 AmDec 522
Ind 746, 161 NE 8. and Burdge v. State, 53 OhSt 512,
Michigan. People v. Dungey, 235 42 NE 594.
Mich 144, 209 NW 57. S7 Berry v. State, 31 OhSt 219,
Ohio. Miami Conservancy Dist, v. 27 AmRep 506; Kaufman v. Brough-
Ryan, 104 OhSt 79, 135 NE 282; ton, 31 OhSt 424.
Scaccuto v. State, 118 OhSt 397, 161 8S State v. Wildman, 145 OhSt
NE 211 379, 61 NE2d 790.
Oklahoma. Caido v. State, 7 Okl 89 Totten v. Miller, 139 OhSt 29,
Cr 139, 122 P 734. 37 NE2d 961.
§14
INSTRUCTIONS — RULES GOVERNING
30
threats ;90 whether a hostile demonstration against the defendant
in a criminal prosecution had been made by the deceased, as bear-
ing upon the admissibility of evidence that the deceased was
armed, the defendant asserting self-defense;91 whether a confes-
sion or admission is sufficiently free and voluntary to be com-
petent evidence,92 though many courts hold that while it is the
duty of the presiding judge to determine in the first instance
whether an alleged confession is admissible in evidence, yet it is
a question for the final determination of the jury where there is
a conflict in the testimony as to the voluntariness of the alleged
confession;93 whether evidence should be suppressed as having
80 State v. Williams, 111 La 205,
35 S 521.
* i State v. Joiner, 161 La 518,
109 S 51.
92 Federal. Harrold v. Territory,
169 F 47, 17 AnnCas 868; Pearlman
v. United States, 10 F2d 460; Hale
v. United States, 25 F2d 430.
The court, if it decides the admis-
sions are admissible, may leave it
to the jury to say whether the ad-
missions were voluntary acts of de-
fendant and direct the jury to reject
the admissions if satisfied they were
not voluntarily made. Gin Bock Sing
v. United States, 8 F2d 976. See
also Kercheval v. United States, 12
F2d 904 (laying down much the
same rule as to a plea of guilty
later withdrawn),
Alabama. McKinney v. State, 134
Ala 134, 32 S 726; Fowler v. State,
170 Ala 65, 54 S 115 (admission);
Burns v. State, 226 Ala 117, 145 S
436.
Arizona. Laub v. State, 24 Ariz
175, 207 P 465.
California. People v. Castro, 85
CalApp 228, 259 P 117; People v.
Mellus, 134 CalApp 219, 25 P2d 237.
It is for the jury's determination
where the evidence conflicts, as to
whether an alleged confession was
the result of a promise to the de-
fendant to charge him with a lower
degree of crime. People v. Howard,
211 Cal 322, 295 P 333, 71 ALR 1385.
Colorado. Osborn v. People, 83
Colo 4, 262 P 892; Saiz v. People,
93 Colo 291, 25 P2d 1114.
Florida. Kirby v. State, 44 Fla 81,
32 S 836; Sims v. State, 59 Fla 38,
52 S 198; Nickels v. State, 90 Fla
659, 106 S 479; Padgett v. State, 117
Fla 75, 157 S 186.
Georgia. Price v. State, 114 Ga
855, 40 SE 1015; McNair v. State,
38 GaApp 365, 143 SE 904.
Illinois. People v. Fox, 319 111 606,
150 NE 347; People v. Bartz, 342
111 56, 173 NE 779; People v. Albers,
360 111 73, 195 NE 459.
Indiana. Hauk v. State, 148 Ind
238, 46 NE 127, 47 NE 465; Mack v.
State, 203 Ind 355, 180 NE 279, 83
ALR 1349; Hamilton v. State, 207
Ind 97, 190 NE 870.
Iowa. State v. Fidment, 35 la 541;
State v. Storms, 113 la 385, 85 NW
610, 86 AmSt 380.
In State v. Kress, 204 la 828, 216
NW 31, it was declared to be a ques-
tion for the jury whether a signed
statement of the accused was a
voluntary statement.
Louisiana. State v. Silsby, 176 La
727, 146 S 684; State v. Florane, 179
La 453, 154 S 417.
Maryland. McCleary v. State, 122
Md 394, 89 A 1100.
Massachusetts. Commonwealth v.
Antaya, 184 Mass 326, 68 NE 331.
The judge in the first instance deter-
mines whether a confession was vol-
untarily made. If satisfied that it
was, he admits it, with instructions
to the jury to disregard it if they
are satisfied that it was not volun-
tarily made. Commonwealth v. Ma-
karewicz, 333 Mass 575, 132 NE2d
294.
Michigan. People v. Howes, 81
Mich 396, 45 NW 961.
31
PROVINCE OF COURT AND JURY
§14
Mississippi. Hunter v. State, 74
Miss 515, 21 S 305; Draughn v.
State, 76 Miss 574, 25 S 153.
Missouri. State v. Williams, 309
Mo 155, 274 SW 427.
Montana. State v. Walsh, 72 Mont
110, 232 P 194; State v. Dixson, 84
Mont 181, 260 P 138.
Nevada. State v. Williams, 31 Nev
360, 102 P 974.
New Jersey. State v. Young, 67
NJL 223, 51 A 939; State v. Genese,
102 NJL 134, 130 A 642; State v.
Yarrow, 104 NJL 512, 141 A 85;
State v. Fiumara, 110 NJL 164, 164
A 490; State v. Locicero, 12 NJMisc
837; 175 A 904.
New Mexico. State v. Ascarate, 21
NM 191, 153 P 1036; State v. Ander-
son, 24 NM 360, 174 P 215.
New York. People v. Doran, 246
NY 409, 159 NE 379; People v.
Weiner, 248 NY 118, 161 NE 441.
North Carolina. State v. Christy,
170 NC 772, 87 SE 499.
Ohio. Spears v. State, 2 OhSt 583;
Burdge v. State, 53 OhSt 512, 42
NE 594; Edinger v. State, 12 OhApp
362, 32 OCA 529; Dupuis v. State,
14 OhApp 67; Snook v. State, 34
OhApp 60, 170 NE 444; State v.
Lukens, 6 OhNP 363, 9 OhDec 349;
State v. Strong, 12 OhDec 701.
The judge may conditionally admit
confession in evidence and require
jury to determine admissibility. Neis-
wender v. State, 28 OCA 545, 30 Oh
CirDec 417.
Oklahoma. Bold v. State, 51 OklCr
426, 2 P2d 97.
Oregon. State v. Jordan, 146 Or
504, 26 P2d 558, 30 P2d 751.
Pennsylvania. Commonwealth v.
Aston, 227 Pa 112, 75 A 1019.
Rhode Island. State v. Jacques,
30 HI 578, 76 A 652.
South Carolina. State v. McAlis-
ter, 133 SC 99, 130 SE 511.
South Dakota. State v. Landers,
21 SD 606, 114 NW 717.
Texas. Marshall v. State, 108 Tex
Cr 561, 2 SW2d 233; Wheatley v.
State, 117 TexCr 599, 34 SW2d 876.
Character of confession as volun-
tary or otherwise held to be a ques-
tion for the jury. Snow v. State, 106
TexCr 222, 291 SW 558.
Washington. State v. Mann, 39
Wash 144, 81 P 561 (mixed question
of law and fact).
West Virginia. State v. Richards,
101 WVa 136, 132 SE 375; State v.
Brady, 104 WVa 523, 140 SE 546.
Wisconsin, Hintz v. State, 125 Wis
405, 104 NW 110; Voss v. State, 204
Wis 432, 236 NW 128; Sweda v.
State, 206 Wis 617, 240 NW 369;
Pollack v. State, 215 Wis 200, 253
NW 560, 254 NW 471.
93 Federal. Wilson v. United
States, 162 US 613, 40 LEd 1090,
16 SupCt 895; United States v. Op-
penheim, 228 F 220; Lewis v. United
States, 74 F2d 173.
Alabama. Godau v. State, 179 Ala
27, 60 S 908; Kinsey v. State, 204
Ala 180, 85 S 519; Winslett v. State,
21 AlaApp 487, 109 S 523; Nowling
v. State, 24 AlaApp 597, 139 S 577.
Arizona. Kermeen v. State, 17
Ariz 263, 151 P 738; Wagner v.
State (Ariz), 33 P2d 602.
Arkansas. Iverson v. State, 99 Ark
453, 138 SW 958; Thomas v. State,
125 Ark 267, 188 SW 805.
California. People v. Dutro, 75
CalApp 138, 242 P 84; People v.
Dye, 119 CalApp 262, 6 P2d 313.
Iowa. State v. Crisman, 244 la
590, 57 NW2d 207.
It is an invasion to instruct that
if confessions were shown to have
been understandingly made, and cor-
rectly remembered by the witnesses
and substantially repeated by them
on the witness stand, they were "en-
titled to great weight." State v.
Willing, 129 la 72, 105 NW 355.
Kentucky. Commonwealth v. Mc-
Intosh, 257 Ky 465, 78 SW2d 320.
Michigan. People v. Mathinson,
235 Mich 393, 209 NW 99.
Mississippi. Brown v. State, 142
Miss 335, 107 S 373.
Missouri. State v. Cartwright
(Mo), 278 SW 694 (holding that the
jury should determine the issue if
the voluntariness of the confession
be denied).
New York. People v. Borowsky,
258 NY 371, 180 NE 87; People v.
Alex, 265 NY 192, 192 NE 289.
Oklahoma. Lucas v. State, 26 Okl
Cr 23, 221 P 798; Howington v.
§14
INSTRUCTIONS — RULES GOVERNING
32
been seized illegally without a warrant;94 whether evidence of
experiments should be admitted, it being discretionary with the
court;95 whether the general reputation of a witness in the
place of former residence is too remote in point of time to be
allowed as impeaching evidence;96 whether a photograph of scene
of alleged crime is accurate;97 whether evidence of a distinct
crime is relevant to any issue in the case;93 whether there was
probable cause for going upon premises to arrest without a
warrant;99 whether sufficient foundation has been laid for ad-
mission of testimony given by absent witness at former hear-
ing ; J whether the existence of a conspiracy has been sufficiently
established to admit evidence of declarations and acts of one
defendant against all;2 whether there was probable cause or
sufficient information to justify an officer in searching an auto-
mobile, evidence having been offered that was obtained through
the search;3 whether a search and seizure had been shown
illegal;4 whether photographs offered in evidence are sufficiently
authenticated;5 whether evidence shall be admitted without
State, 35 OklCr 352, 250 P 941; Ed-
wards v. State (OklCr), 48 P2d 1087.
The court should hear argument
on the question of voluntariness in
the absence of the jury. Kirk v.
Territory, 10 Okl 46, 60 P 797.
South Carolina. State v. McAlis-
ter, 133 SC 99, 130 SE 511.
South Dakota. The question of the
competency of a confession should
be submitted to the jury where the
evidence is conflicting and leaves any
question of the competency in the
mind of the court. State v. Allison,
24 SD 622, 124 NW 747.
Texas. Morris v. State, 39 TexCr
371, 46 SW 253; Overstreet v. State,
68 TexCr 238, 150 SW 899; Rueda v.
State, 101 TexCr 651, 277 SW 116;
Hanus v. State, 104 TexCr 543, 286
SW 218; Clark v. State, 119 TexCr
50, 45 SW2d 575; Smith v. State,
123 TexCr 95, 57 SW2d 163; Crock-
ett v. State (TexCr), 75 SW2d 454.
Washington. State v. Vaughn, 172
Wash 263, 19 P2d 917.
Wisconsin. Pollack v. State, 215
Wis 200, 253 NW 560, 254 NW 471.
94 State v. Thornton, 137 Wash
495, 243 P 12.
95 State v. Newman, 101 WVa
356, 132 SE 728.
96 People v. Cord, 157 Cal 562,
108 P 511.
97 State v. Matthews, 191 NC 378,
131 SE 743.
98 People v. Cook, 148 Cal 334,
83 P 43.
"Mapp v. State, 148 Miss 739,
114 S 825; Hamilton v. State, 149
Miss 251, 115 S 427; McPherson v.
State, 108 TexCr 265, 300 SW 936.
1 State v. Budge, 127 Me 234, 142
A 857.
2 California. See People v. Col-
lier, 111 CalApp 215, 295 P 898.
Connecticut. State v. Thompson,
69 Conn 720, 38 A 868.
Iowa. State v. Walker, 124 la 414,
100 NW 354.
Michigan. See People v. Della-
bonda, 265 Mich 486, 251 NW 594.
Texas. Brady v. State, 122 TexCr
539, 56 SW2d 879.
3McNutt v. State, 143 Miss 347,
108 S 721.
4 Occinto v. United States, 54 F2d
351; Shore v. United States, 56 F2d
490; Schwartz v. State, 120 TexCr
252, 46 SW2d 985.
5 State v. Hale, 85 NH 403, 160
A 95.
S3 PROVINCE OF COURT AND JURY §15
proof of corpus delicti ;6 and whether the evidence for the state
has sufficient probative force to raise an issue of fact.7
Where the accused's palm prints had been taken by the offi-
cers for purposes of identification, and the results were sub-
mitted in evidence, it was held a question for the jury whether
the taking of the prints was against the will of the accused or
whether he voluntarily permitted it.s Where there is no proof
of venue it is a question for the court to pass upon, but where the
question is as to the sufficiency of the evidence tending to prove
the venue, it then becomes a question for the jury.9 It is for
the court to say whether the corpus delicti has been estab-
lished. ' ° It is for the court to determine whether the War De-
partment's records of fingerprints is a public record. * ! In the
presence of uncontradicted showing of facts relied upon to con-
stitute probable cause for search without warrant, the court is
authorized to determine the sufficiency of the showing made.12
And it is generally held that it is a legal question to be decided
by the court whether the evidence discloses probable cause for
a search. ' 3 While the question of the existence of probable cause
to search an automobile for liquor is primarily one for the court
to determine as a matter of law, it becomes a jury question if
the facts on which the officer testified he acted are in dispute. 1 4
§ 15. Direction of verdict in civil cases.
A peremptory instruction should be given commanding the
jury to return a verdict without the consideration of any evi-
dence whatsoever where the evidence is such that all reasonable
minds can draw but one conclusion therefrom.
A motion for a directed verdict or, in some jurisdictions, a
demurrer to the evidence or a motion for a compulsory nonsuit,
raises the question whether there is sufficient evidence to
permit the issues of fact to be decided by the jury. Because the
judge, by whatever standard, decides the sufficiency of proof, it
is often said that he is deciding a question of law. But in direct-
ing a verdict, the judge is really determining that an operative
fact does or does not exist because of insufficiency of proof. For
6 Delcher v. State, 161 Md 475, { l State v. Bolen, 142 Wash 653,
158 A 37. 254 P 445.
7 State v. Claybaugh, 138 MoApp * 2 Webster v. State, 114 TexCr
360, 122 SW 319. 187, 23 SW2d 1118.
8 People v. Les, 267 Mich 648, 255 ' 3 Bedenarzik v. State, 204 Ind
NW 407 517, 185 NE 114; Gartman v. State,
» Pearson v. State, 5 AlaApp 68, 123 TexCr 12, 57 SW2d 137.
59 S 526; Shaffer v. Territory, 14 '4McGee v. State (TexCr), 81
Ariz 329, 127 P 746. SW2d 683.
1 o Foster v. State, 107 TexCr 376,
296 SW 537.
§15
INSTRUCTIONS — RULES GOVERNING
34
this reason, it is probably more accurate to say that the judge is
deciding a question of fact.
In any event, the standard used by the judge in determining
the sufficiency of proof is far from uniform, not only among the
states, but within the same jurisdiction. The most commonly
applied standard is that if reasonable minds could find only for
one party, a verdict will be directed in his favor, but if reason-
able minds could disagree, a verdict will not be directed.15
*s Federal. Wheeler v. Fidelity &
Deposit Co. of Maryland, 63 F2d 562.
Arkansas. St. Louis I. M. & S. Ry.
Co. v. Martin, 61 Ark 549, 33 SW
1070; McGeorge Contracting Co. v.
Mizell, 216 Ark 509, 226 SW2d 566.
Arizona. Collins v. Riverside
Amusement Park Co., 61 Ariz 135,
145 P2d 853.
Colorado. Fedderson v. Goode, 112
Colo 38, 145 F2d 981.
Florida. Dawes v. Robinson, 91
Fla 99, 107 S 340.
Illinois. Chicago v. Babcock, 143
111 358, 32 NE 271.
Indiana. Lake Shore & M. S. Ry.
Co. v. Pinchin, 112 Ind 592, 13 NE
677; Kostial v. Aero Mayflower
Transit Co., 119 IndApp 377, 85 NE
2d 644.
Iowa. Calvert v. Mason City Loan
& Inv. Co. (la), 259 NW 452.
Kansas. Chanute v. Higgins, 65
Kan 680, 70 P 638,
Kentucky. Newport News & Mis-
sissippi Valley Co. v. DentzePs
Admr., 91 Ky 42, 14 SW 958.
Maine. Watson v. Portland & C.
E. Ry. Co., 91 Me 584, 40 A 699, 44
IRA 157, 64 AmSt 268; Froling v.
Howard, 125 Me 507, 131 A 308.
Maryland. State v. Baltimore &
0. R. Co., 69 Md 339, 14 A 685, 688;
Bush v. Mohrlein, 191 Md 418, 62
A2d 301.
Michigan. Garbacz v. Grand Trunk
Western Ry, Co., 323 Mich 7, 34
NW2d 531.
Minnesota. Swanson v. Minneap-
olis St. Ry. Co., — Minn — , 90
NW2d 514.
New Jersey. Epstein v. Nat. Cas-
ualty Co., 1 NJ 409, 64 A2d 67.
New York. McDonald v. Long Is-
land R. Co., 116 NY 546, 22 NE 1068,
15 AmSt 437.
North Carolina. Emry v. Raleigh
& G. R. Co., 109 NC 589, 14 SE 352,
15 LRA 332.
Ohio. Hamden Lodge No. 517,
I.O.O.F. v. Ohio Fuel Gas Co., 127
OhSt 469, 189 NE 246; Metropolitan
Life Ins. Co. v. Huff, 128 OhSt 469,
191 NE 761; Winslow v. Ohio
Bus Line Co., 148 OhSt 101, 73 NE
2d 504; Belshaw v. Agricultural Ins.
Co., 150 OhSt 49, 80 NE2d 675.
Oklahoma. Myers v. Chamness,
114 Okl 220, 245 P 879; Keist v.
Cross, 118 Okl 142, 247 P 85.
Oregon. Camirand v. De Lude, 124
Or 189, 264 P 355; Judson v. Bee
Hive Auto Service Co., 136 Or 1,
294 P 588, 297 P 1050, 74 ALR 944;
Gresham Transfer, Inc. v. Oltman,
187 Or 318, 210 P2d 927.
Pennsylvania. Bare v. Pennsyl-
vania R. Co., 135 Pa 95, 19 A 935.
Rhode Island. Jamestown Bridge
Comm. v. American Employers' Ins.
Co., — RI — , 128 A2d 550.
South Carolina. Miles v. Record
Pub. Co., 134 SC 462, 133 SE 99,
45 ALR 1112.
Tennessee. Smith v. Sloan, 189
Tenn 368, 225 SW2d 539, 227 SW2d
2.
Texas. Garrett v. Hunt (TexCom
App), 283 SW 489, mfdg. (TexCiv
App), 275 SW 96.
Utah. Saunders v. Southern Pa-
cific Co., 13 Utah 275, 44 P 932.
Washington. Northern Pacific R.
Co. v. O'Brien, 1 Wash 599, 21 P 32.
Wisconsin. Salladay v. Dodge-
ville, 85 Wis 318, 55 NW 696, 20
LRA 541; Finkelston v, Chicago, M.
& St. P. Ry. Co., 94 Wis 270, 68 NW
1005; Maanum v. Madison, 104 Wis
272, 80 NW 591; Agen v. Metropoli-
tan Life Ins. Co., 105 Wis 217, 80
NW 1020, 76 AmSt 905.
35
PROVINCE OP COURT AND JURY
§15
Other standards have been used: if there is but a scintilla of
proof, the case will be taken from the jury ; ' 6 if there is a fair
conflict in the evidence on a material issue, the jury must de-
cide.17 Conflict of evidence here is not necessarily confined to
witnesses arrayed side against side; the conflict may arise when
all the evidence is produced by one of the parties. f a Still the stan-
dard is stated by other courts in other ways : if substantial evi-
dence has been presented supporting the non-moving party, a
directed verdict will be denied ; ' 9 or if any evidence which tends
to prove the case for the non-moving party is presented, the
motion for a directed verdict will be denied.20 Although this last
test comes perilously close to the "Scintilla Rule/' the courts
Wyoming. Wright v. Conway, 34
Wyo 1, 241 P 369, 242 P 1107.
1 G Hardy-Burlingham Min. Co. v.
Baker, 10 F2d 277; Hartmann v.
Boston Herald-Traveler Corp., 323
Mass 56, 80 NE2d 16.
1 7 Alabama. Sovereign Camp,
W.O.W. v. Graham, 214 Ala 239, 107
5 98; Superior Fire Ins. Co. v. Whel-
chel, 22 AlaApp 51, 112 S 95.
Arizona. Collins v. Riverside
Amusement Park Co., 61 Ariz 135,
145 P2d 853.
California. In re Fleming's Es-
tate, 199 Cal 750, 251 P 637; Davis
v. Pezel, 131 CalApp 46, 20 P2d 982;
James v. White Truck & Transfer
Co., 1 CalApp2d 37, 36 P2d 401;
Locke v. Meline (CalApp), 48 P2d
176.
District of Columbia. Gas Con-
sumers Assn., Inc. v. Lely, 57 F2d
395.
Florida. City Groc. Co. v. Coth-
ron, 117 Fla 322, 157 S 891.
Iowa. Brinsmaid v. Order of Unit-
ed Commercial Travelers, 157 la 651,
138 NW 465.
Kentucky. Domestic Life & Ace.
Ins. Co. v. Smith, 259 Ky 158, 82
SW2d 293.
Michigan. Wendt v. Richmond, 164
Mich 173, 129 NW 38.
Missouri. Redman v. Chicago, R.
I. & P. Ry. Co. (MoApp), 278 SW 95.
New Jersey. Steinrock v. Hart-
ford Ace. & Indem. Co., 115 NJL
180, 178 A 806; Handler v. Newman
6 Lowy Beef Co. (NJ), 136 A 597.
New York. Bergman v. Scottish
Union & Nat. Ins. Co., 264 NY 205,
190 NE 409, revg. 240 AppDiv 714,
265 NTS 1006.
Ohio. Painesville Utopia Theatre
Co. v. Lautermilch, US OhSt 167,
160 NE 683; Hamden Lodge No. 517,
I. O. 0. F. v. Ohio Fuel Gas Co., 127
OhSt 469, 189 NE 246.
Pennsylvania. Raftery v. Pitts-
burgh & W. V. R. Co., 284 Pa 555,
131 A 470; Rieseck v, Costa Bros.,
103 PaSuper 51, 157 A 803; Szczy-
gielski v. Travelers Ins. Co., 114
PaSuper 352, 174 A 662.
Tennessee. Prudential Ins. Co. v.
Davis, 18 TennApp 413, 78 SW2d
358.
Texas. Friesenhahn v. Tips En-
gine Works (TexCivApp), 283 SW
341; Wharton v. Mortgage Bond Co.
(TexCivApp), 48 SW2d 519.
Vermont. Scott v. Bradford Nat.
Bank (Vt), 179 A 149.
Virginia. Gaines v. Campbell, 159
Va 504, 166 SE 704.
West Virginia. Wharton v. God-
dard (WVa), 177 SE 451.
Wisconsin. Cuddy v. Foreman, 107
Wis 519, 83 NW 1103.
I8lsham v. Trimble (CalApp), 43
P2d 581; Painesville Utopia Theatre
Co. v. Lautermilch, 118 OhSt 167,
160 NE 683.
1 s Wilkeson v. Erskine & Son,
Inc., 145 OhSt 218, 61 NE2d 201;
Durham v. Warner Elev. Mfg. Co.,
166 OhSt 31, 139 NE2d 10; Ayers v.
Woodard, 166 OhSt 138, 140 NE2d
401.
20Gorczynski v. Nugent, 402 III
147, 83 NE2d 495; Hughes v. Bandy,
336 IllApp 472, 84 NE2d 664.
§ 15 INSTRUCTIONS — RULES GOVERNING S6
applying the tendency test deny that it is tantamount to the
scintilla rule.21
Another standard, often stated in the alternative to the
reasonable minds test, is that if the judge would be required to
set aside a verdict in favor of the non-moving party as against
the weight of the evidence, a directed verdict for the other
party should be given.22 Yet other courts emphatically deny
that the test for setting aside a verdict as against the weight
of the evidence is the same test in passing on a motion for a
directed verdict.23
It would seem that the latter view is the better one. The
effect of setting aside a verdict is to have the case retried. In
directing a verdict, the case on its merits has ended, except, of
course, for appeal. It takes more evidence favoring the moving
party of a directed verdict than it does to set aside a verdict
for the other party as against the weight of the evidence. In
other words, it is true that wherever a judge grants a motion
for a directed verdict, he of necessity would grant a motion by
the same party to set aside a verdict for the opposing party as
against the weight of the evidence. However, the converse is not
necessarily true. A judge may set aside a verdict as against the
weight of the evidence, but still would not have granted a motion
for a directed verdict.
It also appears to be contradictory to apply the same test
since in passing on a motion for a directed verdict, a judge does
not weigh the evidence, but views the evidence most favorably
to the non-moving party.24 But in deciding on a motion to set
21 Robson v. Pennsylvania R. Co., Mississippi. Buntyn v. Robinson,
337 IllApp 557, 86 NE2d 403. See, — Miss — , 102 S2d 126.
also, Piggott v. Newman, 338 IllApp Ohio. Hamden Lodge No. 517,
198, 86 NE2d 670, and Hyde v. I. 0. 0. F. v. Ohio Fuel Gas Co., 127
Saunders, 338 IllApp 205, 86 NE2d OhSt 469, 189 NE 246; Wilkeson v.
848. Erskine & Son, Inc., 145 OhSt 218,
See § 18, infra. 61 NE2d 201.
22 Federal Ewing v. Goode, 78 24 Federal. Whitney v. Johnson,
F 442 (CCSDOh). 14 F2d 24; United States v. Russian,
Colorado. Fedderson v. Goode, 112 73 F2d 363; Garrett Constr. Co. v.
Colo 38, 145 P2d 981. Aldridge, 73 F2d 814; Muth v. Unit-
Iowa. Potter v. Robinson, 233 la 479, ed States, 78 F2d 525.
9 NW2d 457. Arkansas. Burcher v. Casey, 190
Minnesota. Caron v. Farmers Ins. Ark 1055, 83 SW2d 73.
Exchange, — Minn — , 90 NW2d 86; California. Swigert v. Pacific
Erickson v. Strickler, — Minn — , 90 Elec. R. Co. (CalApp), 47 P2d 353.
NW2d 232. District of Columbia. Grubb v.
23 Illinois. Hughes v. Bandy, 336 Groover, 62 AppDC 305, 67 F2d 511.
IllApp 472, 84 NE2d 664. Florida. Commercial Credit Co.
Massachusetts. Hartmann v. Bos- v. Parker, 101 Fla 928, 132 S 640.
ton Herald-Traveler Corp., 323 Mass Illinois, Vaughn v. Chicago Junc-
56, 80 NE2d 16. tion R. Co., 249 111 206, 94 NE 40;
37
PROVINCE OF COURT AND JURY
§15
aside the verdict as against the weight of the evidence, the
judge does weigh the evidence.
Although rarely done, a motion for a directed verdict may
be granted to the plaintiff. Here, the judge views the evidence
in defendant's favor. If he finds that no facts are proven which
constitute a defense, the plaintiff's motion will be granted.25
Or if the defendant offers no defense, or if the evidence is in-
Miles v. Long, 342 111 589, 174 NE
836; Williams v. Consumers Co., 352
111 51, 185 NE 217; Minnis v. Friend,
360 111 328, 196 NE 191.
Indiana. Phelan v. Edgely, 98 Ind
App 429, 189 NE 636; Kostial v.
Aero Mayflower Transit Co., 119 Ind
App 377, 85 NE2d 644.
Iowa. Blecher v. Schmidt, 211 la
1063, 235 NW 34; Wareham v. At-
kinson, 215 la 1096, 247 NW 534;
Thompson v. Anderson, 217 la 1186,
252 NW 117.
Kentucky. Edwards v. Storms, 219
Ky 675, 294 SW 165; Jackson v.
Cook, 222 Ky 409, 300 SW 853;
Louisville v. Hale's Admr., 238 Ky
182, 37 SW2d 20; Globe Indem. Co.
v. Daviess, 243 Ky 356, 47 SW2d
9SO; Spencer's Admr. v. Fisel, 254
Ky 503, 71 SW2d 955. See Adkins v.
Harlan County, 259 Ky 400, 82 SW2d
425,
Massachusetts. Hoye v. Boston
Elevated R. Co., 256 Mass 493, 152
NE 738; Boyd v. Boston Elevated R.
Co., 264 Mass 364, 162 NE 735.
Michigan. Bullen v. Wakefield
Crushed Stone Co., 235 Mich 240, 209
NW 124; Contractors Equipment Co.
v. Reasner, 242 Mich 589, 219 NW
713; Groening v. Opsata, 323 Mich
73, 34 NW2d 560; Dasovich v. Long-
acre, 324 Mich 62, 36 NW2d 215.
Minnesota. Merchants & Farmers
Mut. Cas. Co. v. St. Paul-Mercury
Indem. Co., 214 Minn 544, 8 NW2d
827,
Mississippi. Yates v. Houston &
Murray, 141 Miss 881, 106 S 110.
Missouri. Bramblett v. Harlow
(MoApp), 75 SW2d 626.
Montana. Mellon v. Kelly (Mont),
41 P2d 49.
Nebraska. Roberts v. Carlson, 142
Neb 851, 8 NW2d 175; Kohl v.
Unkel, 16S Neb 257, 79 NW2d 405.
New Jersey. Hunke v. Hunke, 103
NJL 645, 137 A 419; Palmer v. Tom-
lin, 104 NJL 215, 141 A 2; O'Neil
v. Jacobus, 112 NJL 145, 169 A 703;
Shields v. Yellow Cab, 113 NJL 479,
174 A 567; Wilkinson v. Walsh, 115
NJL 243, 178 A 721; Schwartz v.
Rothman, 1 NJ 206, 62 A2d 684; Van
Brunt v. Wiener, 10 NJMisc 298, 158
A 923; Heenan v. Horre Coal Co., 12
NJMisc 263, 170 A 894.
New York. Stiles v. Annabel, 138
Mise 811, 246 NYS 524.
Ohio. Hamden Lodge No. 517,
I. 0. 0. F. v. Ohio Fuel Gas Co., 127
OhSt 469, 189 NE 246; Pence v.
Kettering, 128 OhSt 52} 190 NE 216;
Wilkeson v. Erskine & Son, Inc., 145
OhSt 218, 61 NE2d 201.
Oklahoma. Midland Valley R, Co.
v. Neeley, 114 Okl 277, 246 P 859;
Crowe v. Peters, 171 Okl 438, 43 P2d
93.
Oregon. Meany v. Wight (Or), 46
P2d 82; Greshani Transfer, Inc. v.
Oltman, 187 Or 318, 210 P2d 927.
Rhode Island. Kent v. Draper
Soap Co., 75 El 30, 63 A2d 571.
South Carolina. Waring v. South
Carolina Power Co. (SO), 181 SE 1.
Tennessee. Hodge v. Hamilton, 155
Tenn 403, 293 SW 752; Smith v.
Sloan, 189 Tenn 368, 225 SW2d 539,
227 SW2d 2; Finchem v. Oman, 18
TennApp 40, 72 SW2d 564.
Texas. Garuth v. Dallas Gas Co.
(TexCivApp), 282 SW 334.
Washington. Smith v. Keating,
— - Wash2d — , 326 P2d 60.
West Virginia. Nichols v. Raleigh-
Wyoming Coal Co., 112 WVa 85, 163
SE 767.
Wisconsin. Finkelston v. Chicago,
M. & St. P. Ry. Co., 94 Wis 270,
68 NW 1005.
2S Mahoning Nat. Bank v. Youngs-
town, 143 OhSt 523, 56 NE2d 218.
§ 15 INSTRUCTIONS — RULES GOVERNING 38
sufficient to justify a verdict in his favor, there is nothing for
the jury to pass upon, and a verdict should be directed for the
plaintiff if the evidence establishes a prima facie case for the
plaintiff.26
Where a party is entitled to a directed verdict, his opponent
may not complain of error in the charge, since such error, if
any exists, is without prejudice.27
Since the issues of fact are formulated by the pleadings, it
is proper to direct a verdict for the defendant if there is a fatal
variance between the complaint and the proof at the trial; the
plaintiff has failed to present any proof to support a material
allegation. This defect may be overcome if the court permits
the complaint to be amended to conform to the proof.28
It has been clearly established that in some circumstances,
a judge may be justified in directing a verdict for the defendant,
if the opening statement of plaintiff's counsel does not disclose
evidence which, if taken to be true, would warrant the jury in
finding for the plaintiff.29
Under Louisiana practice the common law motions for judg-
ment, directed verdicts and demurrers to the evidence are un-
known and unauthorized, and they may not be invoked by
disguising them with the label of "no right or no cause of
action." If the defendant doubts the sufficiency of the evidence
submitted by plaintiff to sustain his demand, and does not see
fit to contradict such evidence, he has the right to have the
court determine the sufficiency of plaintiff's evidence by resting
his case. In such event a judgment should be rendered on the
merits in favor of one side or the other. An exception of "no
cause of action" addresses itself to the sufficiency in law of the
petition and exhibits attached thereto. In considering whether
26 Colorado. Piccoli v. Paramount 2* Florida. G. I. Miller & Co. v.
Lubricants Co., 80 Colo 175, 250 Carmichael-McCalley Co., 91 Fla
P 149. 1071, 109 S 198.
Georgia. Guthrie v. Rowan, £4 Kansas. Peckinpaugh v. Lamb 70
GaApp 671, 131 SE 93. Kan 799, 79 P 673.
Ohio. Whelan v. Kinsley, 26 OhSt Mississippi. See Gower v. Strain,
181; Hamden Lodge No. 517, 1.0.0. 169 Miss 344, 145 S 244.
F. v. Ohio Fuel Gas Co., 127 OhSt 29 Wilkinson v. New England Tel
469, 189 NE 246; Campbell v. Eddy, & Tel. Co., 327 Mass 132, 97 NE2d
27 OhApp 13, 160 NE 640. 413; note, Directing a Verdict for
Oklahoma. Colonial Sugar Co. v. Defendant after Plaintiff's Opening
Waldrep, 121 Okl 31, 246 P 623. Statement, 44 laLRev 182
27 Carver v, Sherman, 172 Mich (1958); Annot., 83 ALR 221 (1933)
264, 137 NW 519; Mehurin & Son v. 129 ALR 557 (1940). See also Cor-
Stone, 37 OhSt 49; Thompson v. f eld v. Douglas Houghton Hotel Co ,
Jones, 13 OhCirCt (N. S.) 493, 23 324 Mich 459, 37 NW2d 169
OhCirDee 182; Cleveland R. Co. v.
SeJzer, 1 OLA 219.
39
PROVINCE OP COURT AND JURY
§16
such exception is well founded, the court does not consider the
evidence.30
It cannot be said in strictness that there is a direction of a
verdict in the foregoing sense where the court sets out the facts
of which there is evidence constituting the cause of action or
defense of one of the parties and informs the jury that if these
alleged facts are found to be true from the evidence, then the
jury should return a verdict in favor of such party. In cases of
this character the question of finding the truth of these recited
facts is left with the jury,31 as well as the credibility of the
witnesses testifying.32 Such an instruction must, however, in-
clude all the material facts necessary to warrant the recovery
indicated or it will be erroneous.33 It would seem that such a
charge could not be requested where the case is submitted to
the jury on special issues.34
§ 16. Direction of verdict where evidence undisputed.
If the jury as reasonable men could come to but one conclu-
30 Home Ins. Co. v. I. R. & G. Co.,
— LaApp — , 43 S2d 504.
3 ' Alabama. Karpeles v. City Ice
Delivery Co., 198 Ala 449, 73 S 642;
United Order of Good Shepherds v.
Richardson, 202 Ala 305, 80 S 370;
Lawson v. Mobile Elec. Co., 204 Ala
318, 85 S 257; Stewart Bros. v.
Ransom, 204 Ala 589, 87 S 89.
California. Baillargeon v. Myers,
180 Cal 504, 182 P 37; Metcalf v.
Romano, 83 CalApp 508, 257 P 114.
Georgia. Waynesboro Planing
Mill v. Perkins Mfg. Co., 35 GaApp
767, 134 SE 831.
Illinois. Conrad v. St. Louis, S. &
P. R. Co., 201 IllApp 276.
Missouri. State ex rel. Duvall v.
Ellison, 283 Mo 532, 223 SW 651;
Brown v. Callicotte (Mo), 73 SW2d
190; Cole v. Long, 207 MoApp 528,
227 SW 903; Jepson v. Shaw Trans-
fer Co., 211 MoApp 366, 243 SW 370;
Privitt & Jewett (MoApp), 225 SW
127; Lester v. Hugley (MoApp), 230
SW 355; Riner v. Riek (MoApp), 57
SW2d 724.
North Carolina. Proffitt Mercan-
tile Co. v. State Mut. Fire Ins. Co.,
176 NC 545, 97 SE 476.
Ohio. Richardson vf Gurtiss, 33
OhSt 329,
West Virginia. Venable v. Gulf
Taxi Line, 105 WVa 156, 141 SE 622.
32 Kerr Grain & Hay Co. v. Mari-
on Cash Feed Co., 179 NC 654, 103
SE 375.
33 Alabama, Louisville & N. R.
Co. v. Abernathy, 197 Ala 512, 73
S 103.
Georgia. Skellie v. Skellie, 152 Ga
707, 111 SE 22.
Illinois. Snyder v. Steele, 287 111
159, 122 NE 520; Farmers League &
Community Tel. Assn. v. Ohio &
Mississippi Valley Tel. Co., 194 111
App 166; Gage v. Vienna, 196 111 App
585; Richards v. Illinois Cent. R. Co.,
197 IllApp 282; Hackl v. Tower Hill
Coal Co., 202 IllApp 497 (must limit
recovery to acts declared on).
Indiana. Public Utilities Co. v.
Handorf, 185 Ind 254, 112 NE 775;
Chicago, I. & L. R. Co. v. Lake
County Sav. & Trust Co., 186 Ind
358, 114 NE 454. See also Southern
Surety Co. v. Calverly, 195 Ind 247,
143 NE 626.
Missouri. Nichols v. Chicago, R.
I. & P. Ry. Co. (MoApp), 232 SW
275; Franklin v. Kansas City (Mo
App), 260 SW 502.
3* Buchanan v. Williams (TexCiy
App), 225 SW 59,
§ 16 INSTRUCTIONS — RULES GOVERNING 40
sioB on evidence which is undisputed, it is the duty of the court
to direct a verdict.
Although many courts refuse to direct a verdict where the
evidence is disputed, it does not necessarily follow that a directed
verdict will be given if the evidence is undisputed. Yet it is a
fact that many courts solely on the premise of undisputed evi-
dence, conclude that there is nothing left for decision but a
question of law and it is the court's duty to direct a verdict.35
If the defendant offers no evidence after evidence for the plain-
tiff has been admitted sufficient to prove his cause of action,
the court should direct a verdict for the plaintiff.36 On the other
hand, where the undisputed defense facts disprove the plain-
tiff's right to a recovery, a nonsuit should be entered or a
verdict directed for the defendant.37 But if a directed verdict
for the defendant is not warranted at the conclusion of plaintiff's
case, only undisputed evidence sustaining an affirmative defense
will justify the direction of a verdict for defendant at the close
of the case.38 If certain facts essential to a plaintiff's recovery
are not disputed, there is no question in the case as to the proof
as to these facts, and it is not required that the court shall
charge that as to them the burden of proof is upon the plain-
tiff.39 Adding all reasonable inferences favorable to the plaintiff
to the evidence as it exists at the close of his case, the showing
may be such as to render it improper for the court to direct a
verdict for the defendant; but if the defendant thereupon pro-
duces undisputed evidence of facts, consistent with that of the
35 Federal. Traffic Motor Truck Oklahoma. Eagle Loan & Inv. Co.
Corp. v. Claywell, 12 F2d 419; Whee- v. Starks, 116 Okl 149, 243 P 723.
lock v. Clay, 13 F2d 972; United Pennsylvania. Campagna v. Zis-
States Potash Co. v. McNutt, 70 F2d kind, 287 Pa 403, 135 A 124.
126. 36 Moore v. Morris, 116 Okl 224,
Alabama. Alabama Power Co. v. 243 P 933.
Sides, 229 Ala 84, 155 S 686. 37 Flippin v. Cent, of Georgia R.
Kansas. Wilson v. Gonder, 121 Co., 35 GaApp 243, 132 SE 918,
Kan 469, 247 P 631. 3S Shannon v. Nightingale, 321
Kentucky. Modern Woodmen of 111 168, 151 NE 573; Campbell v.
America v. Lemonds, 212 Ky 83, 278 Prudential Ins. Co. of America, 16
SW 532. IllApp 65, 147 NE2d 404.
North Carolina. Moore v. Lam- 39 Boillot v. Income Guaranty Co.
beth, 207 NC 23, 175 SE 714. (MoApp), 83 SW2d 219 (action on
Ohio. Miller v. Uhl, 37 OhApp 276, accident policy where it was undis-
174 NE 591, 33 OLR 294. puted that after the injury to plain-
Where the facts are admitted or tiff he was taken from hospital and
undisputed, the matter of applying treated by a physician, and the fact
the law is for the court. Webb v. and times and details of such treat-
Western Reserve Bond & Share Co., ment were not disputed).
115 OhSt 247, 153 NE 289, 48 LRA
1176,
41 PROVINCE OP COURT AND JURY § 16 A
plaintiff, showing affirmatively a complete defense, a verdict
should be directed for the defendant.40
It may be, however, that in spite of the fact that the evidence
is undisputed, reasonable minds could disagree.41 In that event,
if the judge instructs to jury to find a certain fact "if you believe
the evidence/' this is not a directed verdict, because the jury
is still determining the issues of fact.
§ 16 A. Effect of both parties moving for directed verdict.
There is a split of authority on the effect of both parties,
without reservation, moving for a directed verdict, some courts
holding that the issues of fact are for the court, others holding
that if neither party is entitled to a directed verdict, the case
must go to the jury.
The manner in which both parties make a motion for a
directed verdict may arise in different ways. Both parties may
make the motion consecutively, so that the judge has both mo-
tions before him at the same time. Or one party may make his
motion after the judge has denied the other party's motion.
Which procedure is followed makes a difference. If the second
procedure is followed, the jury will still decide any issues of
fact, even though neither party reserves a jury triaL42
It is in the first procedure, that is, consecutive motions, that
the authorities are not in agreement. It would seem that it is
the rule in all jurisdictions that if either party expressly reserves
jury trial, consecutive motions do not deprive the parties of a
jury trial. On the other hand, if both parties expressly waive
jury trial, then consecutive motions take the case away from
the jury.
Where the courts disagree is in the situation where there is
no express waiver or reservation. Some courts reason that under
these circumstances the parties have impliedly waived a jury
trial and that they have agreed there is no question of fact for
the jury. Hence, the judge withdraws the case from the jury
and decides the issues of fact on the weight of the evidence.43
Those courts deciding the other way reason that it is incon-
sistent and illogical to conclude from a request to decide a
40 Patdsen v. CocMeld, 278 IllApp 43 Indiana. Foudy v. Daugherty,
596. 118 IndApp 68, 76 NE2d 268.
41 Bruce Constr. Corp. v. The Michigan. Where both parties to
State Exchange Bank, — Fla — , 102 an action ask directed verdicts with-
S2d 288. oljk reservations, the court may de-
42 Satterthwaite v. Morgan, 141 termine the case and need not sub-
OhSt 447, 48 NE2d 653; Byford v. mit it to the jury, though the testi-
Gates Bros. Lbr. Co., 216 Ark 400, mony warrants conflicting inferences.
225 SW2d 929. It follows also that one may reserve
17
INSTRUCTIONS — RULES GOVERNING
42
question of law that this gives the court the power to decide
controverted questions of fact. Unless both parties expressly
waive the jury, the court does not become the trier of facts.
Instead, the judge passes on separate questions of law. He may
find that on the evidence, one of the motions should be granted.
But if the judge finds that he cannot sustain either motion, then
he must overrule both, and the issues of fact are then submitted
to the jury without the necessity of a request by counsel for
submission.44
§ 17. Direction of verdict in criminal cases*
In criminal cases, the courts in most jurisdictions have the
power to direct an acquittal where there is an entire lack of
evidence to support a guilty verdict, or if all of the evidence is
as consistent with innocence as with guilt.
In most jurisdictions, a verdict of guilty cannot be directed.
The courts are not in agreement either on a directed acquittal
or directed verdict of guilty. In most jurisdictions, the judge
has the power to direct a verdict of not guilty. Here, as in the
motion for a directed verdict in civil cases, the test used in
his right to go to the jury, on denial
of his motion to direct, by any defi-
nite claim to the court to that end,
made upon the record. The reserva-
tion need not be by written request
to charge. Cole v. Austin, 321 Mich
548, 33 NW2d 78.
But, if in addition to a motion to
direct a verdict in his favor, a party
presents a request to charge the
jury on a certain issue, it negatives
his intent to waive his right to have
the jury pass upon the case, and, if
his motion to direct is denied, he is
entitled to go to the jury on any
proper issue of fact, even though
the opposing party also moves for a
directed verdict in his favor. In re
Snow's Estate, 319 Mich 333, 29
NW2d 826.
Nebraska. Witthauer v. Employ-
ers Mut. Casualty Co., 149 Neb 728,
32 NW2d 413,
New York. Trustees of East
Hampton v. Vail, 151 NY 463, 45
NE 1030; Clason v. Baldwin, 152 NY
204, 46 NE 322.
North Dakota. Whittier v. Leif ert,
72 ND 528, 9 NW2d 402; Farm Ma-
chinery Inc. v. Bry, — ND — , 82
NW2d 593.
44 Florida. Catlett v. Chestnut,
107 Fla 498, 146 S 241, 91 ALR 212.
Illinois. Wolf v. Chicago Sign
Printing Co., 233 111 501, 84 NE 614.
Iowa. Home Indem. Co. v. State
Bank of Fort Dodge, 233 la 103, 8
NW2d 757; in re Farley's Estate,
237 la 1069, 24 NW2d 453.
Minnesota. Poppitz v. German
Ins. Co., 85 Minn 118, 88 NW 418.
New Hampshire. Stevens v. Mut.
Protection Fire Ins. Co., 84 NH 275,
149 A 498, 69 ALR 624.
Ohio. Carter-Jones Lbr. Co. v. Eb~
len, 167 OhSt 189, 147 NE2d 486,
overruling applicable syllabi in:
First Nat. Bank v. Hayes, 64 OhSt
100, 59 NE 893; Strangward v.
American Brass Bedstead Co., 82
OhSt 121, 91 NE 988; Perkins v.
Board of County Commrs., 88 OhSt
495, 103 NE 377; Industrial Comm.
of Ohio v. Garden, 129 OhSt 344, 195
NE 551; Levick v. Bonnell, 137 OhSt
453, 30 NE2d 808.
Vermont, See Mason v. Sault, 93
Vt 412, 108 A 267, 18 ALR 1426.
43
PROVINCE OP COURT AND JURY
§17
passing on the motion is varied and uncertain, perhaps under-
standably so.
In many jurisdictions, the judge has the power to direct an
acquittal if there is no evidence to support a guilty verdict,45
or if all the evidence is as consistent with innocence as with
guilt.46 Or if the evidence merely raises a suspicion that the
accused is guilty, the motion for acquittal should be granted.47
Many other standards are used, stated either negatively or af-
firmatively : has the state introduced evidence fairly and reason-
ably tending to show accused's guilty beyond a reasonable
doubt;48 is there substantial evidence which reasonably tends
to prove the accused's guilt;49 is there some competent evidence
favoring the prosecution;50 would a verdict of guilty, if ren-
dered, be required to be vacated;51 is the evidence such that
reasonable minds can make but one conclusion.52 There is also,
as in civil cases, a comparable scintilla rule in criminal law,
45 Federal. Duff v. United States,
185 F 101; Gargotta v. United
States, 77 F2d 977.
Alabama. Jackson v. State, 178
Ala 76, 60 S 97; Miller v. State, 21
Ala App 653, 111 S 648.
Kentucky. Sloan v. Common-
wealth, 258 Ky 461, 80 SW2d 553;
Wilson v. Commonwealth. (Ky), 121
SW 430; Spencer v. Commonwealth,
(Ky), 122 SW 800.
New York. People v. Gresser, 124
NYS 581.
Ohio. State v. Channer, 115 Oh
St 350, 154 NE 728.
Oklahoma. Pilgrim v. State, 3
OklCr 49, 104 P 383; Huffman v.
State, 6 OklCr 476, 119 P 644; Nash
v. State, 8 OklCr 1, 126 P 260;
Brady v. State (OklCr), 46 P2d 963.
Oregon. Where facts were stipu-
lated, and, as stipulated, excluded all
inferences of guilt, the court should
have directed an acquittal. State v.
Williams, 117 Or 238, 243 P 563.
Pennsylvania. Commonwealth v.
Yost, 197 Pa 171, 46 A 845.
South Carolina. In this state a
circuit judge cannot direct a verdict
in a criminal case. State v. Sanders,
52 SC 580, 30 SE 616.
Wisconsin. It is discretionary with
the trial court to direct an acquittal
when there is no evidence against
the accused except the uncorroborat-
ed testimony of accomplices. Mur-
phy v. State, 124 Wis 635, 102 NW
1087.
46 Eoniano v. United States, 9 F2d
522; Moore v. United States, 56 F2d
794; ParneJl v. United States, 64
F2d 324.
47 State v. Rayfield, — SC — , 101
SE2d 505; State v. Hart, 119 Vt 54,
117 A2d 387.
48 State v. Severance, — Vt — ,
138 A2d 425.
Florida, by statute (F. S. A. Sec.
918.08), permits a directed verdict
for acquittal if the evidence is in-
sufficient to warrant a conviction.
The wording of the statute is con-
fusing. After stating that an accused
does not waive such motion by his
subsequent introduction of evidence,
the statute then requires the motion
to be renewed at the close of all the
evidence. A Florida District Court
of Appeals, criticising the statute
for its inept phrasing, construed the
statute as not requiring the renewal
of the motion. Wiggins v. State, 101
S2d 833 (IstDistCtofApp, Fla).
*9 State v. Rayfield, — SC —, 101
SE2d 505.
*° People v. Urso, 129 Colo 292,
269 P2d 709.
*« State v. Donahue, 125 Me 516,
133 A 433; People v. Broderick, 146
Misc 566, 262 NYS 602.
52 Smith v. United States, 61 App
DC 344, 62 F2d 1061.
17
INSTRUCTIONS — RULES GOVERNING
44
that is, the court should not direct an acquittal so long as there
is evidence, however slight, which points toward the guilt of
the accused.53 It should be the rule that if the facts as proved
do not constitute a crime, an acquittal should be directed.54
A verdict of acquittal cannot be directed before the evidence
for the state is all in.55 In determining the question whether
the defendant is entitled to a directed verdict of acquittal, the
court must view the evidence most favorably to the prosecution.56
In some states, the power to grant a directed verdict of
acquittal is discretionary, and the directed verdict may not be
demanded as a matter of right.57 Where the statute gives the
court merely the power to advise, but not to direct a verdict,
53 Federal. Wilson v. United
States, 77 F2d 236.
Alabama. Thompson v. State, 122
Ala 12, 26 S 141; Coker v. State, 147
Ala 701, 41 S 303; Smith v. State,
165 Ala 50, 51 S 610; Davis v. State,
165 Ala 93, 51 S 239; Black v. State,
1 AlaApp 168, 55 S 948; James v.
State, 25 AlaApp 335, 146 S 424.
Kentucky. Commonwealth v. Boaz,
140 Ky 715, 31 SW 782; Riley v.
Commonwealth, 258 Ky 725, 81
SW2d 582; Frost v. Commonwealth,
259 Ky 689, 83 SW2d 23; Ferrell v.
Commonwealth (Ky), 127 SW 162.
Michigan. People v. Henssler, 48
Mich 49, 11 NW 804.
Mississippi. Justice v. State, 170
Miss 96, 154 S 265.
Missouri. State v. Sharp, 233 Mo
269, 135 SW 488.
Montana. State v. Koch, 33 Mont
490, 85 P 272, 8 AnnCas 804.
New Jersey. State v. Cammarata,
114 NJL 274, 176 Atl 323, affg. 12
NJMisc 115, 169 A 646.
Ohio. State v. Axe, 118 OhSt 514,
161 NE 536.
Oklahoma. Faggard v. State, 3
OklCr 159, 104 P 930.
South Dakota. State v. Egland, 23
SD 323, 121 NW 798, 139 AmSt 1066.
Texas. Diaz v. State (TexCr), 53
SW 632.
54Tinsley v. Commonwealth, 222
Ky 120, 300 SW 368.
5S State v. May, 153 NC 600, 68
SE 1062; Commonwealth v. Popp, 87
PaSuper 193.
se Federal. Hodge v. United States,
13 F2d 596 (stating the rule that in
considering a motion to direct, the
evidence must be construed most
favorably to the prosecution) ; Dow-
dy v. United States, 46 F2d 417.
Kentucky. Cummings v. Common-
wealth, 221 Ky 301, 298 SW 943.
North Carolina. State v. Sigmon,
190 NC 684, 130 SE 854.
South Carolina. State v. Rayfield,
(SC), 101 SE2d 505.
Vermont. State v. Gignac, 119 Vt
471, 129 A2d 499.
57 Connecticut. State v. Boucher,
119 Conn 436, 177 A 383.
Florida. Menefee v. State, 59 Fla
316, 51 S 555; Ryan v. State, 60 Fla
25, 53 S 448; Hughes v. State, 61 Fla
32, 55 S 463.
Georgia. Harvey v. State, 8 Ga
App 660, 70 SE 141.
Idaho. State v. Cacavas (Id),
44 P2d 1110.
Maine. State v. Shortwell, 126 Me
484, 139 A 677.
New Jersey. State v. Brown, 72
NJL 354, 60 A 1117; State v. Lie-
berman, 80 NJL 506, 79 A 331; State
v. Rose (NJ), 136 A 295.
Oregon. State v. Harvey, 117 Or
466, 242 P 440.
But see Tippie v. State, 1 OhApp
13, 15 OhCirCt (N. S.) 522, 24 Oh
CirDec 203; State v. Tippie, 89 OhSt
35, 105 NE 75.
See also Bowers, The Judicial Dis-
cretion of Trial Courts, §335, and
cases there cited, where it is doubted
45
PROVINCE OP COURT AND JURY
§17
the accused is not prejudiced by the refusal to advise a verdict
of acquittal.58
In the great majority of states, a verdict of guilty cannot be
directed.59 A few states do permit such a directed verdict. Ap-
parently, a directed verdict of guilty is permitted in Michigan.
But a verdict of guilty should not be directed unless the facts
are undisputed or admitted.60 This also seems to be the test in
Massachusetts: only where there is no issue of fact for the jury
because of an agreement of all the facts material to the proof
of the crime charged can a judge properly direct a verdict of
guilty.6 1 The granting of a motion for a directed verdict of guilty
is sometimes limited to particular crimes: it is permissible in a
misdemeanor case when the proof of guilt is undisputed and
the punishment is by fine only.62
whether in such cases the trial court
has any discretion, in the sense in
which discretion is understood in
legal parlance.
ss California. People v. Stoll, 143
Cal 689, 77 P 818; People v. Hat-
field, 129 CalApp 162, 18 P2d 366.
The opening statement is not evi-
dence within the provision of the
California Penal Code that "at any
time after the evidence on either
side is closed," the court may advise
the jury to acquit. People v. Stoll,
143 Cal 689, 77 P 818.
Maryland. Klein v. State, 151 Md
484, 135 A 591.
North Dakota, State v. Gammons,
64 ND 702, 256 NW 163; State v.
Schell, 65 ND 126, 256 NW 416.
Oklahoma. Davis v. State, 32 Okl
Cr 436, 241 P 500.
South Dakota. State v. Stone, 30
SD 23, 137 NW 606.
S9 Federal. Cain v. United States,
19 F2d 472.
It amounts to a direction of a
verdict of guilty for the court to tell
the jury that they must convict the
accused if they believe the testimony
for the government, and a convic-
tion will be set aside. Dinger v.
United States, 28 F2d 548.
Alabama. Grimmett v. State (Ala
App), 152 S 262.
Arizona. Pruitt v. State, 37 Ariz
400, 294 P 629.
Kansas. State v. Wilson, 62 Kan
621, 64 P 23, 52 LRA 679.
Michigan. People v. Warren, 122
Mich 504, 81 NW 360, 80 AmSt 582.
New York. People v. Walker, 198
NY 329, 91 NE 806.
North Carolina. Everett v. Wil-
liams, 152 NC 117, 67 SE 265.
Pennsylvania. Commonwealth v.
Bloom, 88 PaSuper 93.
Texas. Potts v. State, 45 TexCr
45, 74 SW 31, 2 AnnCas 827; Cas-
toria v. State, 119 TexCr 193, 47
SW2d 325; Lopez v. State (TexCr),
79 SW2d 1095.
Washington. State v. Christiansen,
161 Wash 530, 297 P 151.
Wisconsin. WTiere the facts are
undisputed, the court may instruct
that the jury have the power to ac-
quit the defendant but in case they
do so they will disregard the facts
and the law applicable to the case.
Schmidt v. State, 159 Wis 15, 149
NW 388, AnnCas 1916E, 107.
But see Boyle v. State, 229 Ala
212, 154 S 575; Martin v. State, 3
AlaApp 90, 58 S 83; Brasher v.
State, 21 AlaApp 360, 108 S 266;
People v. Neal, 143 Mich 271, 106
NW 857.
60 People v. Anschutz, 335 Mich
375, 56 NW2d 224.
61 Commonwealth v. Moniz, —
Mass — , 143 NE2d 196.
62 Taylor v. Pine Bluff, 226 Ark
309, 289 SW2d 679.
§18
INSTRUCTIONS — RULES GOVERNING
46
In a criminal prosecution the issue as to former jeopardy is
triable by jury, and the judge may direct a verdict for the
defendant or the prosecution, as in the trial of a civil case, as
to this issue, since the decision on this issue is not a determina-
tion of the guilt or innocence of the defendant.63
§ 18. Direction of verdict where there is scintilla of evidence.
The scintilla rule as known in the law of evidence and trial
practice means the requirement that the trial judge shall submit
the case to the decision of the jury as a matter of fact whenever
there is any evidence, however slight, which tends to support any
material issue.
The precedents are not in harmony in their views upon the
scintilla rule. Some courts may have their own pet definition of
the scintilla rule, so that superficially, they are classified as
following the scintilla rule. However, upon examination of their
definition of the rule, they cannot be classified as following the
rule herein described, that is, when there is any evidence, however
63 United States. Durland v. Unit-
ed States, 161 US 306, 40 LEd 709,
16 SupCt 508,
Alabama. Evans v. State, 24 Ala
App 390, 135 S 647.
Where material evidence is con-
flicting, the issue as to former jeop-
ardy should be submitted to the jury.
Blevins v. State, 20 AlaApp 229, 101
S 478.
Arizona. State v. Phillips, 27 Ariz
349, 233 P 586.
California. People v. Wilkison, 30
CalApp 473, 158 P 1067; People v.
Conson, 72 CalApp 509, 237 P 799;
People v. Brain, 75 CalApp 109, 241
P 913; People v. Kelley, 132 CalApp
118, 22 P2d 526; People v. Frank,
134 CalApp 211, 25 P2d 486.
Georgia. Bailey v. State, 26 Ga
579; Daniels v. State, 78 Ga 98, 6
AmSt 238.
Idaho. State v. Crawford, 32 Ida-
ho 165, 179 P 511; State v. Douglass,
35 Idaho 140, 20-8 P 236.
Indiana. Farley v. State, 57 Ind
331; Walter v. State, 105 Ind 589,
5 NE 735.
Iowa. State v. Folger, 204 la 1296,
210 NW 580.
Kentucky. Lemon v. Common-
wealth, 171 Ky 822, 188 SW 858.
Minnesota. State v. Eaton, 180
Minn 439, 231 NW 6.
Mississippi. Brown v. State, 72
Miss 95, 16 S 202.
Missouri. State v. Toombs, 326
Mo 981, 34 SW2d 61.
New Jersey. State v. Turco, 99
NJL 96, 122 A 844; State v. Cos-
grove, 102 NJL 255, 132 A 231.
New Mexico. Territory v. West,
14 NM 546, 99 P 343.
New York. People v. Richards, 44
Hun (NY) 278, 5 NYCr 355, revd. on
other grounds in 108 NY 137, 15 NE
371, 2 AmSt 373.
North Dakota. State v. Bronkol,
5 ND 507, 67 NW 680; State v.
Panchuk, 53 ND 669, 207 NW 991.
Oklahoma. Jeter v. Dist. Court,
87 Okl 3, 206 P 831.
South Carolina. State v. Bilton,
156 SC 324, 153 SE 269.
Tennessee. Jacobs v. State, 4 Lea
(72 Tenn) 196.
Texas. Dunn v. State, 92 TexCr
126, 242 SW 1049; Yantis v. State,
95 TexCr 541, 255 SW 180; Van
Hatten v. State, 97 TexCr 123, 260
SW 581; Cloninger v. State, 101
TexCr 1, 274 SW 596; Gentry v.
State, 105 TexCr 629, 290 SW 543.
Utah. State v. Thompson, 58 Utah
291, 199 P 161, 38 ALE 697.
47 PROVINCE OF COURT AND JUEY § 18
slight, which tends to support the issues in a case, a motion for
directed verdict should not be granted. For example, Iowa, which
has disowned the rule as just stated,64 continues to call the
rule it follows the scintilla rule. But the rule there applied is
whether a judge would be required to set aside the verdict
as against the weight of the evidence,65
Another example is South Carolina. Although the Supreme
Court of South Carolina explicitly states that the scintilla rule
prevails in South Carolina, it is probably more accurate to classify
that state as following the substantial evidence rule. The courts
there state that the evidence must be real, material, pertinent,
and relevant, and not merely speculative and theoretical deduc-
tions.66 This conclusion regarding the rule in South Carolina is
further supported by a recent announcement of the South Caro-
lina Supreme Court: "Under the scintilla rule which prevails in
South Carolina, if there is a scintilla of evidence, which is any
material evidence that, if true, would tend to establish the issue
in the mind of a reasonable juror, the case should be submitted
to the jury for its determination."67
In Illinois, there appears to be hopeless confusion. Some of
the Courts of Appeals will state the rule in its classical form,
that is, "any evidence, however slight."68 Yet other Courts of
Appeals in the same state will deny the application of the scin-
tilla rule in Illinois.69
The scintilla rule has been applied in Alabama/0 Kentucky,71
and Missouri.72 On the other hand, the rule has been denounced
in New York,73 New Jersey/4 Texas/5 North Carolina/6 and
64 Vande Stouwe v. Bankers Life Great Atlantic & Pacific Tea Co. v.
Co., 218 la 1182, 254 NW 790; Wion Smalley, 26 AlaApp 176, 156 S 639;
v. Hayes, 220 la 156, 261 NW 531. United Ben. Life Ins. Co. v. Dopson,
6« Potter v. Robinson, 233 la 479, 26 AlaApp 452, 162 S 545,
9 NW2d 457. 7 * Aetna Life Ins, Co. v. Daniel,
66 Turner v. American Motorists 251 Ky 760, 65 SW2d 1025; Dolle v.
Ins. Co., 176 SC 260, 180 SE 55. Melrose Properties, 252 Ky 482, 67
67 Scott v. Meek, 230 SC 310, 95 SW2d 706; Kentucky Utilities Co. v.
SE2d 619. Wiggins, 254 Ky 629, 72 SW2d 12.
68 Marchetti v. Lumachi Coal Co., 72 Hardin v. Illinois Cent. R. Co.,
13 IllApp2d 526, 142 NE2d 815; 334 Mo 1169, 70 SW2d 1075. See
Edsall v. Creek, 13 IllApp2d 571, 142 Williams v. St. Louis-San Francisco
NE2d 717. R- Co., 337 Mo 664, 85 SW2d 624.
69 Martin v. Sterling Casualty 73 Bank of United States v. Man-
Ins Co., 277 IllApp 258; Robson v. heim, 264 NY 45, 189 NE 776.
Penn. R. Co., 337 IllApp 557, 86 74 Schmid v. Haines, 115 NJL 271,
NE2d 403. See, also, Piggott v. 178 A 801,
Newman, 338 IllApp 198, 86 NE2d 75 Wichita Royalty Co. v. City
670, and Hyde v. Saunders, 338 111 Nat. Bank (TexCivApp), 74 SW2d
App 205, 86 NE2d 843. 661.
70 Commonwealth Life Ins. Co. v. 76 Jones v. Bagwell, 207 NC 378,
Clark, 25 AlaApp 588, 151 S 604; 177 SE 170.
§ 19 INSTRUCTIONS — RULES GOVERNING 48
Arizona.77 In the federal courts, it is frequently stated directly
that the scintilla rule does not obtain in these courts.78 The
rule was formerly applied in Ohio, but it has now been expressly
abandoned in that jurisdiction.79
In criminal cases, the same contrariety of views is evident
among the courts, although there is observable an inclination in
some of them to vary their conclusions in individual cases where
prosecutions for crime are before them.80
§ 19. Summing up evidence by court.
In most jurisdictions, it is within the province of the court
to sum up the evidence adduced upon the trial, so that the jury
may see the application of rules of law thereto.
The purpose of summarizing the evidence is to enlighten the
jury as to the issues and to enable them better to comprehend
the principles of law in their concrete application to the facts.81
But the courts disagree on the extent of the power possessed
by trial judges to sum up the evidence. In some states, it is
within the discretion of the judge as to how far he will go,
this discretion being subject to review only if it has been
abused.82 The judge may exercise discretion by stating all or a
part of the facts,83 or he may inform the jury that any or all
77 Casey v. Beaudry Motor Co., 83 New Hampshire. Dimock v. Lus-
Ariz 6, 315 P2d 662. sier, 86 NH 54, 163 A 500.
78 Jones v. Travelers Protective New Jersey. Silverstein v. Schnei-
Assn., 70 F2d 74; Gill v. Fidelity- der, 110 NJL 239, 164 A 480.
Phenix Ins. Co., 5 FSupp 1 (district Ohio. Hulse v. State, 35 OhSt 421;
of Kentucky). In Evans v. United Morgan v. State, 48 OhSt 371, 27
States, 6 FSupp 107 (district of NE 710; Fugman v. Trostler, 24 Oh
Idaho), however, the scintilla rule CirCt (N. S.) 521, 34 OhCirDec 746;
was adopted. Kenney v. Schmidt, 13 (OLA) 582.
79 Hamden Lodge No. 517, 1.0.0. Pennsylvania. Zatzenberg v.
F. v. Ohio Fuel Gas Co., 127 OhSt Oberndorf, 70 PaSuper 567.
469, 189 NE 246. 82 Commonwealth v. Polian
80 Federal. West v. United States, (Mass), 193 NE 68, 96 ALR 615;
68 F2d 96; Nicola v. United States, Schiavo v. Cozzolino, 134 Conn 388,
72 F2d 780. 57 A2d 723.
Alabama. Grimmett v. State, 26 S3 Federal. Order of United Com-
AlaApp 56, 152 S 262. mercial Travelers v. Nicholson, 9
Kentucky. Murphy v. Common- F2d 7; Russell v. United States, 12
wealth, 255 Ky 676, 75 SW2d 341. F2d 683; Davis v. United States, 78
New Jersey. State v. Cammarata, F2d 501.
12 NJMise 115, 169 A 646. Georgia. It is not required that
81 Federal. Bu-Vi-Bar Petroleum the judge state every material fact.
Corp. v. Krow, 47 F2d 1065. Lazenby v. Citizens Bank, 20 GaApp
California, Bruce v. Western Pipe 53, 92 SE 391.
& Steel Co., 177 Cal 25, 169 P 660. Massachusetts. Shaw v. Tompson,
Massachusetts. Moseley v. Wash- 105 Mass 345; Neelon v. Hirsch &
burn, 167 Mass 345, 45 NE 753. Renner, 255 Mass 285, 151 NE 302.
49 PROVINCE OF COURT AND JURY § 19
of the facts so summarized, if believed by the jury, are to be
weighed in conjunction with other facts in evidence.84 So, under
a California code provision which makes it incumbent upon the
court, whenever the testimony is reviewed, to inform the jury
that they are the sole judges of the facts, the court, after stating
the evidence, may tell the jury that they may find for the de-
fendant if they "are satisfied this testimony is true" or may
award such damages as they may think proper if they do not
believe such evidence.83 Under an Alabama code provision which
gives the court authority to "state the evidence when the same
is disputed/' it is permissible for the court to say what the
testimony of a certain witness was, where there is doubt as to
what it was.86 In another state, the court may state that a
particular fact was testified to by all the witnesses where that
is true.87
In some jurisdictions, the judge's power to sum up the evi-
dence is prohibited or restricted. In Georgia, it is not within
the province of the trial court to sum up the evidence, that task
belonging to the jury.88 It is provided by statute in South Caro-
lina that the "judge shall not charge juries in respect to matters
of fact" ; in such case, the court should state the disputed facts
purely in a hypothetical manner.89 Even where the presentation
of facts to the jury is forbidden by the laws of a state, as in
Oregon, the court may direct the jurors to the theories of the
parties by instructing that there is evidence tending to show
certain features of the case.90 In Oklahoma, if the judge states
Ohio. If the judge sums up the Washington (Const., art. 4, § 16) to
evidence he must do it fairly and charge that the memoranda made by
present all material evidence of both the presiding judge showed that a
sides. Morgan v. State, 48 OhSt 371, certain witness testified as to certain
27 NE 710. facts and that the court did not re-
84 District of Columbia v. Robin- member whether the witness gave
son, 180 US 92, 45 LEd 440, 21 testimony as to a certain other fact,
SupCt 283. See also O'Neill v. Blase, and this is true notwithstanding that
94 MoApp 648, 68 SW 764. the jury asked for the instruction
83 Gately v. Campbell, 124 Cal and the court informed the jury that
520, 57 P 567. it was their duty to remember the
8®Folmar v. Siler, 132 Ala 297, evidence. State v. Hyde, 20 Wash
31 S 719; Glover v. State, 21 AlaApp 234, 55 P 49.
423, 109 S 125. In its instructions, the court
87 Jordan v. Boston & M. E. E., should adopt a hypothetical state-
80 NH 105, 113 A 390. ment of controverted matters of fact
88 Griffin v State, 34 GaApp 526, in evidence. Nicolle v. United Auto
130 SE 368. Transp. Co., 138 Wash 48, 244 P 127.
89 Bradley v. Dray ton, 48 SC 234, 9O Smitson v. Southern Pacific Co.,
26 -SE 613. 37 Or 74, 60 P 907.
And so it is within the prohibition
of the constitution of the state of
§20 INSTRUCTIONS — RULES GOVERNING 50
the testimony, he must admonish the jury that they are the
exclusive judges of all questions of fact.9 '
In a criminal case in the federal courts, if the court reviews
the evidence to aid the jury, the statement must not be confined
to the facts on one side only.92
§ 20. Inferences of fact from the evidence.
The judge ordinarily does not have the authority to instruct
the jury as to what specific inferences of fact may be drawn
by the jury from the evidence.
Here is another difficult area of the law because of non-con-
formity of nomenclature and application. If anything is well-
settled in the usage of the terms "inference" and "presumptions,"
it is that there is no settled usage. What one court calls "a
presumption," another calls "an inference;" and, often enough,
the same court may use the terms interchangeably. Common to
both terms is that they relate to the proof in support of issues
of fact. Also common to both is that they cause the issue of fact
at least to go to the jury.
Broadly, an inference is the relationship between two facts,
that is, one fact exists because another fact exists. A presump-
tion, by the better view, is a kind of inference, so that all pre-
sumptions are inferences, but not all inferences are presumptions.
The difference is that in a presumption, the jury must accept
the inference if the basic fact has been established and there
is no contrary evidence as to the fact inferred. Some presump-
tions are irrebuttable, so that no contrary evidence is permitted.
In all other inferences, the jury may or may not accept the in-
ference, the judge determining upon proper request (for ex-
ample, requested peremptory instruction on the particular issue)
whether such an inference is reasonable or not. The judge may
decide that the inference is not justified.93 Even in this kind
of inference, it may happen that the inference is so strong, that
9 « Gaddy v. State, 57 OklCr 171, also find any fact established which
46 P2d 3801 (applying Stat. 1931, they may think rightfully and rea-
§ 3062) , sonably inferable from the evidence.
92 Cline v. United States, 20 F2d The inference must be one which
494. grows logically out of the facts and
93 Alabama. Alabama Great be a legitimate inference under the
Southern K. Co. v. Demoville, 167 pinciples pertaining to the introduc-
Ala 292, 52 S 406. tion of testimony. Henry v. Colorado
Colorado. It is improper to in- Land & "Water Co., 10 ColoApp 14,
struct the jury that they may con- 51 P 90.
sider not only all the evidence and Illinois. Lepman v. Employers
all the circumstances surrounding Liability Assur. Corp., Ltd., 170 111
the question in dispute, but may App 379.
51
PROVINCE OF COURT AND JURY
120
the judge will instruct that the fact inferred does exist.94 It
may be said that when this happens, the inference closely re-
sembles a presumption.
Which inferences are presumptions and which are not is part
of the established rules within each jurisdiction. This section
refers only to those inferences which are not presumptions. So
far as these inferences are concerned, the rule is that ordinarily,
a trial judge does not have the power to instruct the jury as to
what inferences of fact may be drawn.95 However, the court may
instruct generally that the jury may draw reasonable and natural
inferences from facts proved to its satisfaction.96
94 In re Rumsey Mfg. Corp., 296
NY 113, 71 NE2d 426.
93 Alabama. Burns v. State, 229
Ala 68, 155 S 561.
Arkansas. Smith v. Jackson, 133
Ark 334, 202 SW 227; Ft. Smith
Light & Trac. Co. v. Phillips, 136
Ark 310, 206 SW 453 (no presump-
tion of due care by servants).
California. People v. Walden, 51
Cal 588; Linforth v. San Francisco
Gas & Elec. Co., 156 Cal 58, 103 P
320, 19 AnnCas 1230; Hackelberry
v. Sherlock Land & Cattle Co., 39
CalApp 764, 180 P 37.
Colorado. Wolfe v. People, 90 Colo
102, 6 P2d 927.
Florida. Southern Pine Co. v. Pow-
ell, 48 Fla 154, 37 S 570.
Georgia. Standard Cotton Mills v.
Cheatham, 125 Ga 649, 54 SE 650.
Illinois. Wood v. Olson, 117 111
App 128.
Indiana. Louisville, N. A. & C. R.
Co. v. Falvey, 104 Ind 409, 3 NE 389,
4 NE 908; Schillinger v. Savage, 186
Ind 189, 115 NE 321; Metropolitan
Life Ins. Co. v. Glissman, 224 Ind
641, 70 NE2d 24.
Iowa. Warfield v. Clark, 118 la 69,
91 NW 833.
Since the jury have the right to
draw inferences from the evidence
or the lack of evidence, the court has
no right to give an instruction that
limits them to a consideration of the
evidence before them. State v. Pat-
rick, 201 la 368, 207 NW 393.
Kansas. Misner v. Hawthorne, 168
Kan 279, 212 P2d 336.
Maryland. Coffin v. Brown, 94 Md
190, 50 A 567, 55 LRA 732, 89 AmSt
422; Baltimore Transit Co. v. Swin-
dell, 132 Md 274, 103 A 566.
Michigan. Blackwood v. Brown,
32 Mich 104.
Where there is evidence of ac-
cused's flight, any inference of guilt
therefrom is to be drawn by the
jury. People v. Cipriano, 238 Mich
332, 213 NW 104.
Minnesota. Carson v. Turrish, 140
Minn 445, 168 NW 349 (due care by
guests of operator of automobile).
New Jersey. State v. Headley, 113
NJL 335, 174 A 572.
New York. Weil v. Glove Indem.
Co., 179 AppDiv 166, 166 NYS 225.
Ohio. Fastbinder v. State, 42 Oh
St 341; Doe v. State, 14 OhApp 178;
Zimmerman v. State, 42 OhApp 407,
182 NE 354, 12 OLA 140; Harrison
Co. v. Blacker, 15 OhNP (N.S.) 377.
But see Petticrew Eeal Estate Co. v.
Wonderheide, 16 OLA 481.
Oregon. De War v. First Nat.
Bank, 88 Or 541, 171 P 1106.
South Carolina. Izlar v. Manches-
ter & A. R. Co., 57 SC 332, 35 SE
583.
Utah. Schuyler v. Southern Pa-
cific Co., 37 Utah 581, 109 P 458.
Wisconsin. Hawkins v. Costigan,
21 Wis 545.
96 Indiana. Yandalia Coal Co. v.
Moore, 69 IndApp 311, 121 NE 685.
Missouri. Burtch v. Wabash R.
Co. (Mo), 236 SW 338.
Nebraska. Hornby v. State Life
Ins. Co., 106 Neb 575, 184 NW 84,
18 ALR 106,
§20
INSTRUCTIONS — RULES GOVERNING
52
The court may not indicate a specific inference of fact, how-
ever potent it may be in determining the question at issue.97
Under this rule the court exceeds its privileges where it attempts
to instruct, as a matter of law, that the existence of one fact
depends upon the existence of another,98 or to charge that the
presumption of law is that an employee, at the time he accepted
employment as a brusher, was a competent person to fill such
position." It is likewise an invasion of the province of the jury
for the court to tell the jury the meaning and construction to
be placed on oral language used by the parties in negotiating
an alleged contract.1 It is the jury's right, in an action for a
wrongful death, to determine the question of contributory negli-
gence, as this is a matter to be inferred from the evidence.2
It is not for the court to say that if they believe the testimony
of any witness as to certain facts, then they should make certain
findings, for the jury may believe the witness and yet, quite
properly, be governed in their action by the inferences to be
drawn from the entire proof. The jury should be left free to
97 Alabama. Rungan v. State, 25
AlaApp 287, 145 S 171.
California. People v. Carrillo, 54
Cal 63.
Illinois. Herkelrath v. Stookey,
63 111 486.
Indiana. Union Mut. Life Ins. Co.
v. Buchanan, 100 Ind 63.
Iowa. State v. Huckins (la), 247
NW 480.
Texas. McGhee Irr. Ditch Co. v.
Hudson, 85 Tex 587, 22 SW 398;
Mitchell v. Stanton (TexCivApp),
139 SW 1033.
It is never proper for the court
to instruct the jury as to presump-
tions arising from certain facts, ex-
cept where the presumption is one of
law and therefore conclusive, or one
of fact required hy positive law, but
rebuttable. White v. McCullough, 56
TexCivApp 383, 120 SW 1093.
98 California. People v. Walden,
51 Cal 588.
Georgia. It is an invasion of the
jury's province, in an action for per-
sonal injuries, to charge that, with
reference to one of the material
facts to be considered by the jury in
determining1 whether plaintiff him-
self was guilty of negligence, "he
would have the right to presume that
the belt, once shifted from the tight
to the loose pulley, and the machine
thereby stopped, would remain
stopped until again started." The
court, in so instructing, in effect dis-
posed of a material question of fact
for the jury. Standard Cotton Mills
v. Cheatham, 125 Ga 649, 54 SE 650.
Oregon. It is proper for the court
to tell the jury that there must be
some fact legally proved as a basis
for an inference, and that it cannot
be based on another inference. Ore-
gon Box & Mfg. Co. v. Jones Lbr.
Co., 117 Or 411, 244 P 313.
99 Alverson v. Little Cahaba Coal
Co., 201 Ala 123, 77 S 547.
1 Hawkins v. Costigan, 21 Wis 545.
2 Althage v. Peoples Motorbus
Co., 320 Mo 598, 8 SW2d 924 (hold-
ing it error for the court to refuse
to submit the question of contribu-
tory negligence to the jury in an
automobile accident case, and to in-
struct the jury that plaintiff could
not recover if the deceased had run
in front of defendant's bus without
looking or listening); Pulsifer v.
Albany, 226 MoApp 529, 47 SW2d
233; Perez v. San Antonio & A. P.
R. Co., 28 TexCivApp 255, 67 SW
137.
5% PROVINCE OF COURT AND JURY § 20
find the ultimate facts, as it is their duty to do.3 It cannot be
said, however, that an instruction drew a conclusion from the
evidence where, on the question of negligence in a personal injury
action, the jury were told that "the plaintiff, as a passenger,
was not required by law to exercise extraordinary care or mani-
fest the highest degree of prudence to avoid injury" and that
"all the law required of him, while traveling as a passenger, was
that he should exercise ordinary care and prudence for his safety,
such as ordinarily careful persons would exercise under the same
circumstances as those shown in evidence."4 Neither is an infer-
ence drawn by an instruction which tells the jury that "if you
find that the plaintiff was guilty of any negligence in going
upon said platform or in getting off of said train, and that such
negligence, if any, either caused or contributed to his said injury,
if any, then your verdict must be for defendant."5
An instruction in a criminal case invades the province of the
jury where it in effect authorizes a conviction for larceny on the
unexplained recent possession alone.6 In a prosecution of a wife
for the murder of her husband, it was held proper to refuse a
requested instruction that it is presumed that the wife loved
her husband.7 An instruction is invasive which tells the jury
that a man is presumed to intend that which he does, and if
accused, with a deadly weapon on slight provocation, gave de-
cedent a mortal blow, he is prima facie guilty of wilful killing
and has the burden of showing extenuating circumstances, and
is guilty of murder in the first degree.8 But it is proper to
instruct that if a person takes the life of another by an act
intentionally done, naturally calculated to produce the result,
the presumption is that the result was intended.9
It has been stated, and disputed by others, that an inference
of fact cannot be predicated upon another inference, but must
be based upon a fact supported by the evidence. l °
3 Arkansas. Garrett v. State, 171 Ohio. Petticrew Real Estate Co.
Ark 297, 284 SW 734. v, Wonderheide, 16 OLA 481.
Georgia. Tanner v. State, 163 Ga Texas. Stewart v. State (TexCr),
121, 135 SE 917. 77 SW 791.
Illinois. Chicago Union Trac. Co. Instruction that possession of sto-
v. Shedd, 110 IllApp 400. len property is not of itself sufficient
Iowa. State v. Huckins, 212 la 283, to authorize a conviction is invasive.
234 NW 554. May v. State, 40 TexCr 196, 49 SW
4 West Chicago Street R. Co. v. 402.
McNulty, 166 111 203, 46 NE 784. 7 People v. Madison (Cal), 46 P2d
5 Williams v. Galveston, H. & S. 159.
A. R. Co., 34 TexCivApp 145, 78 * State v. Hertzog, 55 WVa 74,
SW 45. 46 SE 792.
6 Arkansas. Crosby v. State, 169 9 Cupps v. State, 120 Wis 504, 97
Ark 1058, 277 SW 523. NW 210, 98 NW 546, 102 AmSt 996.
Minnesota. State v. Hoshaw, 89 * ° Simon v. United States, 78 F2d
Minn 307, 94 NW 873. 454; Hoppe v. Industrial Comm., 137
§21 INSTRUCTIONS — RULES GOVERNING 54
In Ohio and most other states, the rule of res ipsa loquitur
is not a rule of substantive law but is a rule of evidence which
permits the jury, but not the court in a jury trial, to draw an
inference of negligence where the instrumentality causing the
injury was under the exclusive management and control of the
defendant and the accident occurred under such circumstances
that in the ordinary course of events it would not have occurred
if ordinary care had been observed. The trial court, in a jury
trial, in a case which calls for the application of the rule of res
ipsa loquitur, is without authority to declare, as a matter of law,
that the inference of negligence which the jury is permitted to
draw, has been rebutted or destroyed by an explanation of the
circumstances offered by the defendant, and such action on the
part of the trial court is an invasion of the province of the jury.
Where the allegations in a petition and the evidence offered in
support thereof call for the application of the rule of res ipsa
loquitur, and the defendant has offered evidence tending to meet
and explain the circumstances, it is the duty of the court, when
requested so to do, to submit the question to the jury under
proper instructions. The weight of the inference of negligence
which the jury is permitted to draw in such a case, as well as
the weight of the explanation offered to meet such inference, is
for the determination of the jury. ' '
§ 21. Hypothetical statement of facts.
There is an invasion of the province of the jury where the
judge: (1) states an uncontroverted fact hypothetically; or (2)
asserts a controverted fact instead of stating it hypothetically;
or (3) fails to hypothetically state all the essential facts neces-
sary to be found as a basis for the indicated verdict.
Hypothetical instructions, or formula instructions, are
frowned upon by some courts. The general form of these instruc-
tions is to state hypothetically, that is, "if you so find," all the
essential facts required for a party to win a verdict, concluding
with, "then you must find for the party." This is not an instruc-
tion directing a verdict, since the jury still decides the issues
of fact. Obviously, these instructions may become involved and
confusing-. Certain rules limit their use.
(1) A requested instruction is properly refused where it puts
to the jury as hypothetical an uncontroverted f act* ' 2
OhSt 367, 30 NE2d 703; Sobolovitz Where there is no conflict in the
v. Lubric Oil Co., 107 OhSt 204, 140 evidence the court may charge the
NE 634. jury upon the facts directly without
1 ! Fink v. New York Cent. R. Co., setting them out hypothetically. By-
144 OhSt 1, 56 NE2d 456. non v. State, 117 Ala 80, 23 S 640,
1 2 Houston & T. C. K Co. v. Har- 67 AmSt 163.
vin, (TexCivApp), 54 SW 629.
55 PROVINCE OF COURT AND JURY § 21
(2) Where the testimony is of an indeterminate character
and such as to require inferences of fact, a charge in the form
of a statement of fact rather than in the form of an hypothesis
infringes upon the province of the jury. ' 3
There is an obvious violation of the rule where the instruc-
tion contains a hypothesis which is opposed to all the testi-
mony.14 The court, however, does not overstep its authority in
giving an instruction, in the form of a hypothetical statement
of fact, where the instruction does not assume as undisputed
the truth of the facts upon which it is founded and where there
is sufficient evidence to justify the submission of the question to
the jury,15 or where there is an alternative statement of the
evidence. ' 6 And, while the court should not charge hypothetically
upon a state of facts directly opposed to all the proof, yet where
there is contradictory evidence as to the existence of a fact,
the court may hypothetically state the fact as existing and
predicate his charge upon it. f 7
The rules do not forbid the use of figures by the way of
illustration in directing the jury how to estimate the present
value of the loss of future earnings where they are plainly told
that the figures are used merely by way of illustration and not
with the intention of indicating what the verdict should be.18
In giving hypothetical instructions the court should caution the
jury that they are not to assume the existence or nonexistence
of any of the facts recited.19 If the court charge is predicated
upon the assumption of a fact unsupported by evidence, it will
be error which should be corrected.20 If the charge is unobjec-
tionable in the abstract, yet contains a statement that the rule
applies to the facts of the case, being based upon an assumption
of the existence of controverted facts, the court may properly
eliminate that portion asserting the applicability of the proposi-
tion to the facts of the case.2 <
1 3 Westbrook v. Pulton, 79 Ala ' 8 Eeed v. American Dyewood Co.,
510. 231, Pa 431, 80 A 873.
1 4 Wise v. Wabash R. Co., 135 * 9 People v. Chadwick, 143 Cal
MoApp 230, 115 SW 452. 116, 76 P 884; Sackett v. Kellar,
* B Federal. United States v. Op- 22 OhSt 554.
penheim, 228 F 220. 2O State v. Collins, 30 NC 407.
Minnesota. Chandler v. DeGraff, 2I Illinois. Lord v. Board of
25 Minn 88. Trade, 163 111 45, 45 NE 205.
Ohio. Lexington Fire, Life & Ma- In criminal cases it is proper to
rine Ins. Co. v. Paver, 16 Oh 324; state hypothetically the facts to
Sackett v. Kellar, 22 OhSt 554; which a certain rule of law is to be
Cleveland, C. & C. R. Co. v. Craw- applied if the facts are proved by
ford 24 OhSt 631, 15 AmRep 633; the evidence beyond a reasonable
Gage v. Payne, Wright (Oh) 678. doubt. Kyle v. People, 215 111 250,
1 e Watson v. Musick, 2 Mo 29. 74 NE 146.
" 7 Carlisle v. Hill, 16 Ala 398,
§ 22 INSTRUCTIONS — RULES GOVERNING 56
(3) If an instruction authorizes the rendition of verdict on
an affirmative finding of hypothesized facts, the hypothetical
statement must be of a complete case.22
§ 22. Disparaging comments on merits of case.
The judge invades the province of the jury when he makes
disparaging comments on the merits of the case as made by either
of the parties.
Where the evidence is conflicting and it is possible for
different inferences to be deducted from the testimony, it is
error to confine the jury to one view of the case. So where
the court charges that "it seems to me the plaintiff has made
out a better case here and that your verdict ought to be for
him/' prejudicial error is committed.23 Where the principal issue
is whether there was an intent to defraud on the part of the
defendant, the question being one for the jury, the court com-
mits prejudicial error in charging that "I think it is a very
thin case and I hesitate in submitting the case to you."24 So, in
an action for personal injuries sustained by reason of a defec-
tive bridge, a comment by the court that "it is useless to talk
about that being old and rotten along there, or anything of
the kind" and that "any verdict that the jury would find that
is contrary to what I know to be the fact from my own personal
South Carolina. Battle v. DeVane, Maine. Oilman v. F. 0, Bailey
140 SC 305, 138 SE 821. Carriage Co., Inc., 127 Me 91, 141
The use of a hypothetical case to A 321.
illustrate a charge upon the law is Missouri. McDonald v. Kansas City
not open to the objection that it Gas Co., 332 Mo 356, 59 SW2d 37;
charges in respect to matters of Mott v. Chicago, R. I. & P. R. Co.,
fact. State v. Aughtry, 49 SC 285, (MoApp), 79 SW2d 1057.
26 SE 619, 27 SE 199. Ohio. Jenkins v. Little Miami R.
Virginia. Barton v. Camden, 147 Co., 2 Disn. 49, 13 OhDec 31.
Va 263, 137 SE 465. Oregon. Riley v. Good, 142 Or 155,
22 Arkansas. Temple Cotton Oil 18 P2d 222.
Co. v. Skinner, 176 Ark 17, 2 SW2d Pennsylvania. Sweeney v. Floyd,
676. 90 PaSuper 14.
California. An instruction which Virginia. Levine v. Levine, 144 Va
omits to bring out clearly the ele- 330, 132 SE 320; Thomas v. Snow,
ment of contributory negligence may 162 Va 654, 174 SE 837.
be harmless when not misleading. West Virginia. Read v. Wiseman,
Ward v. Read, 219 Cal 65, 25 P2d 106 WVa 287, 145 SE 388.
821, superseding 16 P2d 799. Bick- 23 Arizona. Globe v. Rabogliatti,
ford v. Pacific Elec. R. Co., 120 Cal 24 Ariz 392, 210 P 685.
App 542, 8 P2d 186. Illinois. See People v. Fisher, 295
Connecticut. Bunnell v. Water- 111 250, 129 NE 196.
bury Hospital, 103 Conn 520, 131 A Pennsylvania. Samuel v. Knight &
501. Co., 9 PaSuper 352.
Illinois. Margolies Groc. Co. v. 24 Sieling v. Clark, IS Misc 464,
Kopman, 244 IllApp 451. 41 NYS 982, 75 NYSt 1360.
Indiana. Garner v. Morean. 92
57 PROVINCE OP COURT AND JURY § 23
knowledge I would not allow to stand for a minute" is a distinct
invasion of the jury's province.25
The rule is infringed by criticism of doctrines on which a
defense is based,26 or the character of the evidence introduced
on an issue.27 And so, likewise, where in an action on promis-
sory notes, the defense was referred to by the court as "a fraud-
ulent scheme," the charge was held to amount to an improper
influence over the jury's action.28 Where the trial court, in
submitting special questions to the jury, said: "I want the jury
to understand that these questions are got up to befuddle and
mislead the jury so that there will be error in the trial of this
case, so that the verdict may be set aside/' the remark was
prejudicial.29
But where the language used in a charge amounted simply to
a statement of the contradictory position in which defendant
placed himself by his pleading and his evidence, it was held that
the defendant was not prejudiced thereby.30 Nor is it a dis-
paragement to admonish the jury to give close scrutiny to testi-
mony in support of an alibi.31 So, likewise it is not fatal that
the court told the jury in a criminal case that they represented
the state without charging that they also represented the de-
fendant.32 In one of the cases it was held that a charge "If you
arrive at the point where damages are assessed," was not open
to criticism, as giving the jury to understand it was questionable
whether they would ever arrive at that point.33
§ 23. Assumption of facts — General rule and illustrations.
The exclusive province of the jury to pass upon the facts is
violated by instructions which assume as a fact material matters
in dispute not established by the evidence.
A trial judge must not incorporate into his charge assump-
tions or positive statements as to facts which are in dispute,
since this practice may impress his interpretation of the evidence
upon the jury.34 The rule forbids the assumption of disputed
25 Shafer v. Eau Claire, 105 Wis 36 A 1123. See also O'Rourke v.
239, 81 NW 409. Blocksoxn, 69 PaSuper 93.
26 Bergen Point Iron Works v. 3 ' People v. Carson, 49 CalApp 12,
Shah, 249- F 466 (assumption of 192 P 318.
risk). 32 State v. Johnson, 119 SC 55,
27 State v. McLaughlin, 138 La 110 SE 460.
958, 70 S 925; Twinn v. Noble, 270 33 Gardner v. Russell, 211 Mich
Pa 500, 113 A 686. 647, 179 NW 41.
28 Alexander v. Bank of Lebanon, 34 Federal. United States v. Ellis,
19 TexCivApp 620, 47 SW 840. 67 F2d 765; Carpenter v. Connecti-
29 Cone v. Citizens Bank, 4 Kan cut General Life Ins. Co., 68 F2d 69.
App 470, 46 P 414. Alabama. Birmingham R. & Elec.
30 McCusker v, Mitchell, 20 RI 13, Co. v. City Stable Co., 119 Ala 615,
;23
INSTRUCTIONS — RULES GOVERNING
58
24 S 558, 72 AmSt 955; Dorian v.
Westervitch, 140 Ala 283, 37 S 382,
103 AmSt 35; Smith v. Baclras, 201
Ala 534, 78 S 888 (assumption of
location, of boundary); Bradley v.
Powers, 214 Ala 122, 106 S 799; Ala-
bama Oil Co. v. Gibson, 229 Ala 269,
156 S 771.
An instruction that the burden
was on defendant to prove that the
transferee had knowledge of de-
fenses assumes that he was a pur-
chaser for value. Citizens Nat. Bank
v. Buckheit, 14 AlaApp 511, 71 S 82.
Arizona. Mutual Benefit Health &
Ace. Assn. v. Neale, 43 Ariz 532, 33
P2d 604.
Arkansas. Taylor v. Martin, 151
Ark 200, 235 SW 411.
California. Rogers v. Manhattan
Life Ins. Co., 138 Cal 285, 71 P 348;
Jolly v. McCoy, 36 CalApp 479, 172
P 618; Ellis v. McNeese, 109 CalApp
667, 293 P 854.
Colorado. Barrows v. Case, 63 Colo
266, 165 P 779; Alley v. Tovey, 78
Colo 532, 242 P 999.
Delaware. Daniels v. State, 2 Penn
(Del) 586, 48 A 196, 54 LRA 286.
Florida. Southern Pine Co. v. Pow-
ell, 48 Fla 154, 37 S 570.
Georgia: Crummey v. Bentley, 114
Ga 746, 40 SE 765.
Idaho. Drumheller v. Dayton, 29
Idaho 552, 160 P 944 (assumption of
value of property).
Illinois. Illinois Cent. R. Co. v.
Anderson, 184 111 294, 56 NE 331;
Muenter v. Moline Plow Co., 193
IllApp 261; Rasmussen v. Nelson,
217 IllApp 209; Holcomb v. Magee,
217 IllApp 272; Wilson Groc. Co. v.
Nat. Surety Co., 218 IllApp 584;
Goldstein v. Greenstone, 223 IllApp
511.
An instruction in a will contest
is erroneous which assumes that
testator's actions were different as
to the provisions of the will than
they would have been had they not
been based on false beliefs instilled
into his mind to influence him. Dow-
dey v. Palmer, 287 111 42, 122 NE 102.
Indiana. Carter v. Pomeroy, 30
Ind 438; Cleveland, C., C. & St. L.
R. Co. v. Cloud, 61 IndApp 256,
110 NE 81.
Iowa. Hutton v. Doxsee, 116 la
13, 89 NW 79; Seevers v. Cleveland
Coal Co., 179 la 235, 159 NW 194.
Kansas. Wilson v. Fuller, 9 Kan
176; Haines v. Goodlander, 73 Kan
183, 84 P 986.
Kentucky. Security Benefit Assn.
v. Payne, 222 Ky 332, 300 SW 861;
Henderson County v. Dixon, 23 KyL
1204, 63 SW 756.
Maryland. Bonaparte v. Thayer,
95 Md 548, 52 A 496; Maryland Ice
Cream Co. v. Woodburn, 133 Md 295,
105 A 269; Surry Lbr. Co. v. Zis-
sett, 150 Md 494, 133 A 458.
There is no principle better estab-
lished than that which denies to the
court the right of assuming any
fact, in aid of a prayer, where the
onus of proving such fact rests
upon the party asking the instruc-
tion, no matter how strong and con-
vincing his proof on the subject may
be. Baltimore & 0. R. Co. v. State
ex rel. Hendricks, 104 Md 76, 64 A
304. See also Provident Trust Co.
v. Massey, 146 Md 34, 125 A 821.
Massachusetts. Clough v. Whit-
comb, 105 Mass 482; Dunham v.
Holmes, 225 Mass 68, 113 NE 845;
Bisbee v. McManus, 229 Mass 124,
118 NE 192.
Michigan, Chadwick v. Butler, 28
Mich 349; Rimmele v. Huebner, 190
Mich 247, 157 NW 10.
Minnesota. Burnett v. Great
Northern R. Co., 76 Minn 461, 79
NW 523.
Missouri. Quinn v. Van Raalte, 276
Mo 71, 205 SW 59; Henson v. Kan-
sas City, 277 Mo 443, 210 SW 13;
Hunt v. St. Louis, 278 Mo 213, 211
SW 673; Orris v. Chicago, R. I. &
P. R. Co., 279 Mo 1, 214 SW 124;
Boyd v. Kansas City, 291 Mo 622,
237 SW 1001; Connor v. Metropoli-
tan Life Ins. Co., 78 MoApp 131;
Aubuchon v. Foster, 202 MoApp 225,
215 SW 781; Laughlin v. Gorman,
209 MoApp 692, 239 SW 548; Land
v. Adams (Mo), 229 SW 158; Sooby
v. Postal Tel.-Cable Co. (MoApp),
217 SW 877; Weddle v. Tarkio Elec.
59
PROVINCE OF COUKT AND JURY
facts whether made directly or indirectly,36 and the error is not,
as a general rule, cured by another portion of the charge which
submits the issue to the jury.36 In general, an instruction cannot
be construed as an assumption of facts if it begins with the
& Water Co. (Mo App), 230 SW 386;
Boyer v. General Oil Products (Mo
App), 78 SW2d 450.
Montana. Gallick v. Bordeaux, 31
Mont 328, 78 P 583.
Nebraska. South Omaha v. Wrze-
sinski, 66 Neb 790, 92 NW 1045;
Wiseman v. Carter White Lead Co.,
100 Neb 584, 160 NW 985; Van Dorn
v. Kimball, 100 Neb 590, 160 NW
953; Beeler v. Supreme Tribe of
Ben Hur, 106 Neb 853, 184 NW 917.
New Jersey. Cavanagh v. Ridge-
field, 94 NJL 147, 109 A 515.
New York. LeRoy v. Park Fire
Ins. Co., 39 NY 56.
North Carolina. Ward v. Odell
Mfg. Co., 123 NC 248, 31 SE 495;
Perry v. Seaboard Air Line R. Co.,
171 NC 158, 88 SE 156, LRA 1916E,
478.
Ohio. Northern Ohio R. Co. v.
Rigby, 69 OhSt 184, 68 NE 1046;
Toledo R. & Light Co. v. Mayers, 93
OhSt 304, 112 NE 1014; Columbus
Mut. Life Ins. Co. v. Nat. Life Ins.
Co., 100 OhSt 208, 125 NE 664.
Oklahoma. Archer v. United
States, 9 Okl 569, 60 P 268; Peters
Branch of International Shoe Co, v.
Blake, 74 Okl 97, 176 P 892; Musko-
gee Elec. Trac. Co. v. Thompson, 100
Okl 169, 228 P 963; Chicago, R. I.
& P. R. Co. v. Garrison, 169 Okl 634,
38 P2d 502,
Pennsylvania. Greenfield v. East
Harrisburg Passenger R. Co., 178 Pa
194, 35 A 626; Fern v. Pennsylvania
R. Co., 250 Pa 487, 95 A 590; Bell v.
Jacobs, 261 Pa 204, 104 A 587;
Browning v. Rodman, 268 Pa 575, 111
A 877; Dodson Coal Co. v. New
Boston Land Co., 276 Pa 452, 119
A 173.
South Dakota. Richardson v. Dy-
bedahl, 17 SD 629, 98 NW 164;
Egan v. Dotson, 36 SD -459, 155 NW
783, AnnCas 1917A, 296 (assumption
of falsity of publication of alleged
libel).
Texas. Clark v. Clark, 21 TexCiv
App 371, 51 SW 337; Fidelity &
Deposit Co. v. Anderson (TexCiv
App), 189 SW 346; Anders v. Cali-
f-jrnia State Life Ins. Co. (TexCiv
App), 214 SW 497; West Lbr. Co. v.
Keen (TexCivApp), 221 SW 625;
MeCallum v. Houston Elec. Co. (Tex
CivApp), 280 SW 342.
Virginia. Mankin v. Aldridge, 127
Va 761, 105 SE 459; Reliance Life
Ins. Co. v. Gulley's Admx., 134 Va
468, 114 SE 551.
Washington. Phoenix Assur. Co,
v. Columbia & P. S. R. Co., 92 Wash
419, 159 P 369; Larson v. McMillan,
99 Wash 626, 170 P 324.
West Virginia. Williams v. Schehl,
84 WVa 499, 100 SE 280.
Wisconsin. Kuklinski v. Dibelius,
267 Wis 378, 66 NW2d 169.
35 California. People v. Williams,
17 Cal 142.
Illinois. Clark v. Public Service
Co., 278 IllApp 426.
Maryland. Baltimore & O. R. Co.
v. State ex rel. Hendricks, 104 Md
76, 64 A 304.
Ohio. Columbus Mut. Life Ins.
Co. v. Nat. Lii'e Ins. Co., 100 OhSt
208, 125 NE 664.
36 Arkansas. But see Brinkley
Car Works & Mf g, Co. v. Cooper, 75
Ark 325, 87 SW 645.
California. Cahoon v. Marshall,
25 Cal 197.
Illinois. Bressler v. Schwertf erger,
15 IllApp 294.
Ohio. Alleged error in general
charge in assuming that plaintiff
was injured was held cured by sub-
mitting defendant's written requests
embracing practically all issues in-
volved. Clark Restaurant Co. v. Rau,
41 OhApp 23, 179 NE 196, 35 OLR
318.
Utah. Marti v. American Smelt-
ing & Ref. Co., 23 Utah 52, 63 P 184.
23
INSTRUCTIONS — RULES GOVERNING
60
conditional statement, "If you find and believe from the evidence,"
or similar expression.37
Illustrations of assumptions of facts in various important
fields of law follow :
(I) Contracts. The rule against the assumption of contro-
verted matters in instructions is violated by instructions which
assume the existence of a contract relation where that is a
question in dispute on conflicting evidence.38 If there is a con-
flict in the evidence as to whether there was ever the relation of
attorney and client between the defendant and an attorney
suing for fees, it is error to assume in the charge to the jury
that such relation existed.39 The examples are numerous where
the court has assumed the existence of the agency relation,40
the master and servant relation,41 the passenger and carrier
relation,42 the independent contractor relation,43 or the shipper
and carrier relation.44
37Killough v. Lee, 4 CalApp2d
309, 40 P2d 897; Pearson v. Kansas
City (Mo), 78 SW2d 81.
38 California. See O'Connor v.
West Sacramento Co., 189 Cal 7,
207 P 527.
Georgia. Latimer v. Bruce, 151
Ga 305, 106 SE 263; McDonald v.
Dabney, 161 Ga 711, 132 SE 547.
Kentucky. Knoxville Tinware &
Mfg. Co. v. Howard, 219 Ky 106, 292
SW 762.
Massachusetts. Stebbins v. North
Adams Trust Co., 243 Mass 69, 136
NE 880.
Missouri. Gillen v. Bayfield, 329
Mo 681, 46 SW2d 571; Jones Store
Co. v. Kelly, 225 MoApp 833, 36
SW2d 681; Bishop & Babcock Co. v.
Mack (MoApp), 238 SW 512; Mc-
Connon v. Kennon (MoApp), 281
SW 450.
It is not an assumption where
court uses expression "if you find."
Dodge v. Kirkwood (MoApp), 260
SW 1012.
Montana. Where one of the main
issues as made by the pleadings is
whether a partnership had any ex-
istence in fact, the testimony being
conflicting on this point, and wheth-
er there was a partnership liability,
the court oversteps its bounds in
assuming the existence of the part-
nership. Lawrence v. Westlake, 28
Mont 503, 73 P 119.
Ohio. Ross v. Couden, 22 OhApp
330, 154 NE 527.
Texas. McCallon v. Cohen (Tex
CivApp), 39 SW 973.
39Bonelli v. Conrad, 1 CalApp2a
660, 37 P2d 137.
40 Georgia. Adams v. Slocum, 26
GaApp 799, 107 SE 375 (son as
agent for father) .
Illinois. It was error to assume
that daughter driving car involved
in collision was agent of defendant
owner. Richardson v. Franklin, 235
IllApp 440.
Kentucky. Cumberland State Bank
v. Ison, 218 Ky 412, 291 SW 405.
Maryland. American Fidelity Co.
v. State ex rel. Cobb, 135 Md 326,
109 A 99; Lewis v. E. F. Schlichter
Co., 137 Md 217, 112 A 282 (agency).
Virginia. Robertson's Exr. v. At-
lantic Coast Realty Co., 129 Va 494,
106 SE 521.
41 Brown v. Leppo, 194 IllApp
243; Sutton v. Kansas City Star Co.
(MoApp), 54 SW2d 454.
42 Lavander v. Chicago City R.
Co., 296 111 284, 129 NE 757. But see
Mayne v. Kansas City R. Co., 287
Mo 235, 229 SW 386.
43 J. W. Wheeler & Co. v. Fitz-
patrick, 135 Ark 117, 205 SW 302.
44 White v. Payne, 118 SC 381,
110 SE 463.
61 PROVINCE OF COURT AND JURY § 23
Where, however, it is clear from the charge as a whole that
the reference of the court to the terms of the agreement between
the parties was intended merely to apprise the jury of the issues
and where the charge submits to the jury the question of the
existence of the contract, there is no error.45
The performance or nonperformance of a contract is a ques-
tion of fact to be decided by the jury from the evidence. Thus,
in an action to recover for labor performed in boring a well, an
instruction is erroneous which assumes that the work has been
finished, and the evidence on this point is contradictory.46 Again,
an instruction may be erroneous which assumes a tender in ful-
filment of a contract.47
In an action to recover a commission for the sale of real
estate, where the evidence is conflicting as to whether a definite
price for the property had been fixed, an instruction assuming
that the price was fixed is a violation of the rule.48 But facts
are not assumed in an instruction that brokers were free to accept
employment by purchaser for a resale, after they had completed
their contract with the vendor.49
(2) Negligence. Negligence and contributory negligence are
questions for the jury where there are facts and circumstances
from which it may or may not be inferred,50 and it is error to
instruct that certain facts constitute negligence where the law
does not declare them to be such.51
45 In Thompson v. Thompson, 141 49 Bales v. Hendrickson (MoApp),
SC 56, 139 SE 182, it was held that 290 SW 638.
the rule was not violated by the 50 Alabama. Walter v. Alabama
court's charge to the jury, "Now, as Great Southern R. Co., 142 Ala 474,
to a valid contract, what is a valid 39 S 87; Sloss-Sheffield Steel & Iron
contract? It must be about a lawful Go. v. Harris, 199 Ala 261, 74 S 347
subject and I charge you this is a '( assumption of defect in belt);
lawful subject." Payne v. James, 207 Ala 134, 91 S
Blake v. Austin, 33 TexCivApp 801 (injuries to fruit shipment);
112, 75 SW 571. Western R. Co. v. Madison, 16 Ala
46 Bates v. Harte, 124 Ala 427, App 588, 80 S 162.
26 S 898, 82 AmSt 186. Arkansas. Lancaster v. Kaler, 135
In a suit to recover the balance Ark 617, 204 SW 854 (assumption
claimed to be due on a building con- that locomotive engineer kept prop-
tract, an instruction which directs er outlook) ; St. Louis & S. F. R. Co.
the jury to find from the evidence v. Black, 142 Ark 41, 218 SW 377;
whether or not the architect refused Ft. Smith Rim & Bow Co. v. Quails,
to deliver the final certificate is not 146 Ark 475, 225 SW 892 (injury to
objectionable as instructing the jury minor servant) ; Edgar Lbr. Co. v.
to assume the nondelivery of the cer- Denton, 156 Ark 46, 245 SW 177.
tificate as a fact. Fitzgerald v. California. Collins v. Hodgson, 5
Benner, 219 111 485, 76 NE 709. CalApp2d 366, 42 P2d 700.
47 Holmes v. Cameron, 267 Fa 90, An instruction that if plaintiff at-
110 A 81. tempted to board a moving car he
4» Sample v. Rand, 112 la 616, was guilty of contributory negli-
84 NW 683. gence was erroneous as importing
§23
INSTRUCTIONS — RULES GOVERNING
62
In an action for damages from automobile accident, it is
error to assume that at the time when he was struck the plaintiff
was at a place where he had a right to be, there being evidence
for and against the fact that he had suddenly stepped in front
of the automobile.52 So, it is error to assume that a servant
was in the line of his duty at the time an injury was received,53
or that the instrumentalities with which he worked were de-
fective.54
The rule applies in actions against common carriers for per-
sonal injuries and an instruction assuming negligence or con-
tributory negligence as established, when in controversy, is in
violation of the rule.55 Thus in a case of injuries to a street
railway passenger the rule was violated by an instruction which
assumed that plaintiff was acquainted with certain facts and
circumstances and knew that certain duties, as involving the
question of his own care and caution, grew out of such facts
some degree of negligence by de-
fendant. Hanton T. Pacific Elec. R.
Co., 178 Gal 616, 174 P 61.
Georgia. Rome R. & Light Co. v.
Foster, 25 GaApp 173, 102 SE 845
(operation of street car); Hudson v.
Devlin, 28 GaApp 458, 111 SE 693.
B * Florida. Western Union Tel.
Co. v. Michel, 120 Fla 511, 163 S 86.
Georgia. Western & A. R. Co. v.
Casteel, 138 Ga 579, 75 SE 609.
Illinois. Alden v. Coultrip, 275 111
App 306 (rule recognized, but in-
struction held not to violate it) .
Minnesota. Abraham v. Byman,
214 Minn 355, 8 NW2d 231.
Missouri. Mahaney v. Kansas City,
Clay County & St. Joseph Auto
Transit Co,, 329 Mo 793, 46 SW2d
817; Rice v. Jefferson City Bridge &
Transit Co. (Mo), 216 SW 746; Mc-
Combs v. Ellsberry (Mo), 85 SW2d
135; Alexander v. Hoenshell (Mo
App), 66 SW2d 164.
Montana. An instruction that an
employer is liable for any negligent
acts of the driver of an automobile
in his employment as driver did not
assume negligence by the driver.
Rohan v. Sherman & Reed, 61 Mont
519, 202 P 749.
Oklahoma. Goodrich v. Tulsa, 102
Okl 90, 227 P 91; Oklahoma City v.
Wilcoxen, 173 Okl 433, 48 P2d 1039.
Utah. Olsen v. S. H. Kress & Co.,
87 Utah 51, 48 P2d 430.
52 Nelson v. Lott, 81 Utah 265, 17
P2d 272.
33 Edwards v. Federal Lead Co.
(MoApp), 230 SW 127.
54 Eudy v. Federal Lead Co. (Mo
App), 220 SW 504; Cowan v. Hy-
draulic Press Brick Co. (MoApp),
222 SW 924.
55 Alabama. Montgomery Light
& Trac. Co. v. Harris, 197 Ala 236,
72 S 545.
An instruction that the duty of
the carrier with reference to calling
stations is fulfilled when such sta-
tion is called in a distinct tone of
voice in the car in which passenger
is traveling, assumes that the name
of the station was properly called.
Central of Georgia R. Co. v. Barnitz,
17 AlaApp 201, 84 S 474.
California. Haber v. Pacific Elec.
R. Co., 78 CalApp 617, 248 P 741.
Illinois. Brewster v. Rockford
Public Service Co., 257 IllApp 182.
Maryland. Baltimore & 0. R. Co.
v. State ex rel. Hendricks, 104 Md
76, 64 A 304; Washington, B. & A.
Elec. R. Co. v. State ex rel. Kolish,
153 Md 119, 137 A 484,
Massachusetts. Callahan v. Bos-
ton Elevated R. Co., 286 Mass 223,
190 NE 27.
Minnesota. Wiester v. Kaufer, 188
Minn 341, 247 NW 237.
Mississippi. In Priestly v. Hays,
147 Miss 843, 112 S 788, the instruc-
63
PROVINCE OP COURT AND JURY
i 23
and circumstances.56 The rule finds application in injury cases
involving railroads outside the passenger or shipper relation.57
But an instruction in an action by an employee that "if the
jury find from the evidence that the defendant's engine was
derailed by reason of the cracked, defective and dangerous con-
dition of said wheel," plaintiff is entitled to recover, has been
held not an assumption that the wheel was, as a matter of fact,
cracked, dangerous and defective.58 If the statute makes it
negligence to drive an automobile on the wrong side of the
street, it is not error for the court so to instruct the jury in an
action in which no excuse is offered for so driving.59 And in an
action for personal injuries caused by falling into an unprotected
elevator shaft, where a material controverted fact is whether
the light at the opening was sufficient, it is no violation of the
rule to instruct that the plaintiff was entitled to recover "if the
jury find from the evidence that the shipping room near said
elevator-opening on said day was dark and insufficiently lighted
and that sunlight was partly excluded by the piling up of the
furniture therein." The instruction does not assume the in-
adequacy of the light as established, but puts the question to
tion assumed negligence of the driver
of an automobile in being on wrong-
side of street.
Tennessee. Nashville, C. & St. L.
R. Co. v. Newsome, 141 Tenn 8, 206
SW 33 (assumption that alighting
place was dangerous).
Texas. Freeman v. Galveston, H.
& S. A. R. Co. (TexComApp), 285
SW 607, revg. 273 SW 979, and reh.
den. in 287 SW 902.
Washington. Whether the rate of
speed at which a car is traveling
is negligent is to be determined by
a consideration of all the surround-
ing circumstances and where the
facts are in dispute it is properly
a question for the jury. Hence an
instruction directing the jury to find
for the defendant street railway if
they find that the speed of the car
was within nine miles an hour, which
is the limit prescribed by municipal
ordinance, is an assumption of a
fact. Atherton v. Tacoma R. &
Power Co., 30 Wash 395, 71 P 39.
56 Omaha St. R. Co. v. Cameron,
43 Neb 297, 61 NW 606.
57 Preston v. Union Pacific R. Co.,
292 Mo 442, 239 SW 1080 (injuries
to switchman) ; Perkins v. United R.
Co. (MoApp), 243 SW 224; Brook-
ings v. Northern Pacific R. Co., 47
ND 111, 180 NW 972 (animals killed
at crossing).
58 Geary v. Kansas City, O. & S.
R. Co., 138 Mo 251, 39 SW 774, 60
AmSt 555.
Where a brewing company fur-
nished its salesman with a horse and
buggy to be used in visting patrons
where one of the principal Issues
was whether or not reasonably safe
and suitable harness had been pro-
vided, a charge was not erroneous
which said that "if, upon reviewing
the testimony, you find that the
plaintiff had equal opportunities —
equal means of ascertaining the de-
fect— that the master had, then the
plaintiff could not recover and your
verdict would be for the defendant."
The instruction is not vulnerable to
the objection that it assumed the
existence of a defect in the harness.
Portner Brew. Co. v. Cooper, 120
Ga 20, 47 SE 631.
59 Winter v. Davis, 217 la 424,
251 NW 770.
§ 23 INSTRUCTIONS — RULES GOVERNING 64
the jury and leaves the jury to determine the matter.60 An
instruction that an interurban company, sued for injuries to an
occupant of a motorcycle at a public crossing, was not required
to be on guard against "unusual or extraordinary occurrences or
conduct on the part of others" was erroneous as assuming that
the passage of a motorcycle was an unusual and extraordinary
occurrence that did not require lookout by the motorman.61
Use by the court in instructions of the words "and this being
so," in reference to the plaintiff's claim that an electric wire ran
close to the branches of trees, was held to be an assumption of
the fact.62 Where the plaintiff in a negligence damage case was
fifteen years old at the time of the accident on which the action
is based, it is error for the court to refer to her as a child.63
In an action for injury to an automobile, an instruction that
if the jury found for the plaintiff to allow for use of the machine
was erroneous as assuming damages from loss of use.64 It is
error to assume that an injury will result in a decrease of the
earning power of the injured person.65
(3) Wills. Where undue influence is involved in a suit to con-
test a will, it is for the jury to pass upon the question as to
whether a relationship of close confidence and trust existed be-
tween the executor and the testator and the court therefore may,
with propriety, refuse to instruct in such a way as to assume
the existence of such a relationship.66 The delivery of a deed is
a question of the grantor's intention to surrender control of the
instrument, and it is the sole right of the jury to determine
whether intention may be inferred from certain acts on the part
60 West Kentucky Transp. Co. v. troduced to show a testator's excess-
Dezern, 259 Ky 470, 82 SW2d 486; ive use of intoxicants, as bearing
Wendler v. People's House Furnish- on the question of his mental ca-
ing Co., 165 Mo 527, 65 SW 737; pacity, the jury's province is not
Dohring v. Kansas City (Mo), 81 invaded by an instruction that if
SW2d 943. See Fowler v. Missouri, the testator was sober and in pos-
K. & T. R. Co. (MoApp), 84 SW2d session of all his mental faculties
194. at the time of the execution of the
6 r Swanlund v. Rockford & I. R. will, the fact that he was under the
Co., 305 111 339, 137 NE 206. influence of liquor on other occa-
62 Jackiewicz v. United Illuminat- sions would not alone be sufficient
ing Co., 106 Conn 302, 138 A 147. to invalidate the instrument or that
63 Ellington v. Chicago, R. I. & if the habit of intoxication was of
P. R. Co. (MoApp), 45 SW2d 105. such long standing as to cause un-
64 Elliott v. Ticen, 78 IndApp 14, soundness of mind, the same prin-
134 NE 778. ciples as to testamentary capacity
65 Texas & Pacific Coal Co. v. would apply as in cases of mental
Ervin (TexCivApp), 212 SW 234. unsoundness produced by different
66 Appeal of Turner, 72 Conn 305, causes. Swygart v. Willard, 166 Ind
44 A 310. 25, 76 NE 755.
Where considerable evidence is in-
65
PROVINCE OP COURT AND JURY
of the grantor.67 In a will contest where the issue was the
mental capacity of testator, it was held that an instruction
assumed mental unsoundness which told the jury that it was a
matter of common knowledge that epilepsy was a mental dis-
ease.68
67 Walker v. Nix, 25 TexCivApp
596, 64 SW 73.
68 Platt v. Platt, 290 Mo 686, 236
SW 35.
It is not error to refer to the
alleged will as "the will" or "the
will she has made." Fagan v. Welsh,
19 OhCirCt (N. S.) 177, 32 OhCir
Dec 409.
Illinois. Anderson v. Moore, 108
IllApp 106; Paris v. East St. Louis
R. Co., 275 IllApp 241.
What is ordinary care is a ques-
tion for the jury, to be decided in
the light of all the attendant cir-
cumstances, and an instruction is
erroneous which assumes that the
exercise of ordinary care requires a
particular course of conduct in a
given case. Nelson v. Knetzger, 109
IllApp 296.
The rule was violated by instruc-
tion assuming that injured person
had done something to aggravate his
condition. Todd v. Chicago City R.
Co., 197 IllApp 544.
Indiana. Teagarden v. McLaugh-
lin, 86 Ind 476, 44 AmRep 332.
Kentucky. An instruction in a
malpractice case that it was de-
fendant's duty to continue attention
to case as long as it needed atten-
tion, assumed the need of further
attention, and disregarded the ques-
tion of diligence and skill. Bolar v.
Browning, 168 Ky 273, 181 SW 1109.
Maryland. Baltimore v. State ex
rel. Biggs, 132 Md 113, 103 A 426.
A prayer requesting an instruc-
tion that a railway company is not
responsible for the negligence of a
city's watchman is erroneous where
it is an open question whether the
watchman was in the city's employ,
and the jury should be left to deter-
mine such fact. Baltimore Consol.
R. Co. v. State ex rel. O'Dea, 91
Md 506, 46 A 1000.
Massachusetts. Noyes v. Whiting-
(Mass), 194 NE 93.
Mississippi. In an action against
an express company for goods al-
leged to have been lost in transit, an
instruction to find for the plaintiff
"the value of the property consigned
to him that belonged to him and was
never delivered" assumes as a fact
the very issue to be tried by the
jury and should be refused. Ameri-
can Exp. Co. v. Jennings, 86 Miss
329, 38 S 374, 109 AmSt 708.
Missouri. Orris v. Chicago, R. I.
& P. R. Co., 279 Mo 1, 214 SW 124
(setting out fire by locomotive) ;
McLaughlin v. Marlatt, 296 Mo 656,
246 SW 548; Klein v. St. Louis
Transit Co., 117 MoApp 691, 93 SW
281; Willi v. United Rys. Co., 205
MoApp 272, 224 SW 86 (assumption
that suburban car driven at exces-
sive speed); Gaylor v. Weinshienk,
221 MoApp 585, 283 SW 464; Boden-
mueller v. Columbia Box Co. (Mo
App), 237 SW 879; Boyer v. General
Oil Products (MoApp), 78 SW2d 450.
New Jersey. Reed v. Director-
General of Railroads, 95 NJL 525,
113 A 146.
New York. Brush v. Long Island
R. Co., 10 AppDiv 535, 42 NTS 103.
Ohio Toledo R. & Light Co. v.
Mayers, 93 OhSt 304, 112 NE 1014
(injury to occupant of auto driven
by another).
Oklahoma. It is improper to charge
the jury that certain facts, if proved,
would amount to contributory negli-
gence and prevent recovery. Musko-
gee Elec. Trac. Co. v. Durham, 115
Okl 238, 242 P 762.
Oregon. Robison v. Oregon- Wash-
ington R. & Nav. Co., 90 Or 490, 176
P 594 (imputed negligence).
South Carolina. Jones v» Charles-
ton & W. C. R. Co., 61 SC 556, 39
SE 758; Pearson v. Piedmont & N.
§24
INSTRUCTIONS — BULBS GOVERNING
66
§ 24* Assumption of facts — Statement of issues and claims.
Instructions do not assume facts if merely stating the issues
made by the pleadings, or the parties' claims, or matters of
common knowledge, or abstract legal propositions, or facts in
evidence hypothetically.
Instructions are not open to objection on the ground of as-
suming controverted facts where they merely state the issues
made by the pleadings,69 or the claims of the parties,70 or mat-
it. Co., 112 SC 220, 99 SE 811.
Texas. St. Louis Southwestern R.
Co. v. Gentry (TexCivApp), 74 SW
607; Abilene Gas & Elec. Co. v.
Thomas (TexCivApp), 194 SW 1016;
Panhandle & S. F. R. Co. v, Wright-
Herndon Co. (TexCivApp), 195 SW
216 (assumption that rough handling
of freight is negligence); Southern
Trac. Co. v. Owens (TexCivApp),
198 SW 150 (assumption of material
facts in charge on discovered peril);
Texas & Pacific Coal Co. v. Sherb-
ley (TexCivApp), 212 SW 758.
An instruction to the effect that
pedestrian could assume that auto-
mobile drivers would not negligently
injure him was open to objection
that it assumed that plaintiff was
exercising ordinary care and that
defendant was negligent. Magee v.
Gavins (TexCivApp), 197 SW 1015.
Utah. Cheney v. Buck, 56 Utah
29, 189 P 81 (injury to bicyclist,
assumption that he was on wrong
side of roadway).
An instruction that, in determin-
ing whether chauffeur was defend-
ants' servant, his act in driving
defendants' car might be taken into
consideration does not assume exist-
ence of facts. Ferguson v. Reynolds,
52 Utah 583, 176 P 267.
Washington. Walters v. Seattle,
97 Wash 657, 167 P 124 (reckless
driving of automobile).
An instruction that if jury from
'any evidence in the case thought
that plaintiff was negligent, and
that her negligence contributed to
the injury, she could not recover
does not assume that she was guilty
of contributory negligence. MacDer-
mid v. Seattle, 93 Wash 167, 160 P
290.
Wisconsin. Clifford v. Minneapo-
lis, St. P. & S. S. M. R. Co., 105
Wis 618, 81 NW 143.
69 California. Charge was not bad
as assuming fact not in evidence
which recited: "Where the insured
is found dead under such circum-
stances that death may have been
due to suicide or to accident, the
presumption is against suicide, and
in favor of accident." Wilkinson v.
Standard Ace. Ins. Co. of Detroit,
Mich., 180 Cal 252, 180 P 607.
Colorado. It cannot be said that
there is an assumption of a fact
where the court, referring to the
grounds relied upon for a recovery,
as shown by the pleadings, tells the
jury that "plaintiffs, by their reply,
give us a history of the transaction
and claim." De St. Aubin v. Mar-
shall Field & Co., 27 Colo 414, 62
P 199.
Indiana. Allen v. Powell, 65 Ind
App 601, 115 NE 96.
Kentucky. Roseberry v. Louisville
R. Co., 168 Ky 277, 181 SW 1117.
Ohio. Plymouth & S. Trac. Co. v.
Hart, 2 OhApp 1, 19 OhCirCt (N. S.)
71, 25 OhCirDec 347.
Texas. Missouri, K. & T. R. Co.
v. Kyser & Sutherland, 43 TexCiv
App 322, 95 SW 747; Ft. Worth &
R. G. R. Co. v. Montgomery (Tex
CivApp), 141 SW 813.
West Virginia. Wallace v. Prich-
ard, 92 WVa 352, 115 SE 415.
70 California. Jarman v. Rea, 137
Cal 339, 70 P 216.
Minnesota. Dawson v. Northwest-
ern Constr. Co., 137 Minn 352, 163
NW 772.
Missouri. Barada-Ghio Real Es-
tate Co. v. Keleher (Mo), 214 SW
961.
67
PROVINCE OP COURT AND JURY
§24
ters of common knowledge,71 or abstract legal propositions with-
out applying them to the facts,72 or state facts in evidence
hypothetically and without assuming that they have been estab-
lished.73
In all cases it is essential that the instruction should work
harm to the complaining party in order to cause a reversal on
this ground.74 Very generally the rule against assumption is
considered not violated when the court submits the stated facts
as issues for the jury to decide.75 An instruction in condemna-
New York. Poly kr anas v. Krausz,
73 AppDiv 583, 77 NYS 46.
Ohio. Delaware v. Metropolitan
Constr. Co., 21 OhCirCt (N. S.) 137,
33 OhCirDec 285.
Virginia. Deitz v. Whyte, 131 Va
19, 109 SE 212.
7 * Joliet v. Shuf eldt, 144 111 403,
32 NE 969', 18 LRA 750, 36 AmSt
453; Harris v. Shebek, 151 111 287,
37 NE 1015; Lewis v. Bell, 109 Mich
189, 66 NW 1091.
72 Alabama. Anthony v. Seed, 146
Ala 193, 40 S 577.
Florida. Florida Cent. & P. R. Co.
v. Foxworth, 41 Fla 1, 25 S 338, 79
AmSt 149.
Illinois. Illinois Steel Co. v. Han-
son, 97 IllApp 469.
Missouri. Wagner v. Wagner
(MoApp), 215 SW 784.
73 Alabama. Seaboard Mfg. Co. v.
Woodson, 94 Ala 143, 10 S 87.
Arkansas. Wisconsin & Arkansas
Lbr. Co. v. Thomas, 143 Ark 106,
219 SW 779.
California. Arundell v, American
Oil Fields Co., 31 CalApp 218, 160
P 159.
Colorado. Jackson v. Burnham,
20 Colo 532, 39 P 577.
Indiana. Morgan v. Wattles, 69
Ind 260; Lake Erie & W. R. Co. v.
Howarth, 73 IndApp 454, 124 NE
687, 127 NE 804.
Iowa. Christy v. Des Moines City
R. Co., 126 la 428, 102 NW 194.
Mississippi. Jones v. Edwards, 57
Miss 28.
Missouri. Baker v. J. W. McMurry
Contracting Co., 282 Mo 685, 223
SW 45; Grubbs v. Kansas City Pub-
lic Service Co., 329 Mo 390, 45 SW2d
71; McDonald v. Central lUinois
Constr. Co., 196 MoApp 57, 190 SW
633; Liljegren v. United Rys. Co.
(MoApp), 227 SW 925. But see
Bente v. Finley (MoApp), 83 SW2d
155.
It is for the jury to decide in a
will contest case whether the evi-
dence for or against the validity of
the will is true, and any assumption
by the court in the instructions that
any of such testimony is true is
erroneous. Hartman v. Hartman,
314 Mo 305, 284 SW 488.
Nebraska. Sioux City & P. R. Co.
v. Smith, 22 Neb 775, 36 NW 285.
Texas. El Paso & S. W. R, Co. v.
Havens (TexCivApp), 216 SW 444.
74 Indiana. Van Camp Hdw. &
Iron Co. v. O'Brien, 28 IndApp 152,
62 NE 464.
Kentucky. Reliance Textile & Bye
Works v. Martin, 23 KyL 1625, 65
SW 809.
Missouri. Walker v. Kansas City,
99 Mo 647, 12 SW 894; Bordeaux
v. Hartman Fum. & Carpet Co., 115
MoApp 556, 91 SW 1020.
Texas. Payne v. Baker (TexCiv
App), 242 SW 343.
75 Alabama, Kay v. Elston, 205
Ala 307, 87 S 525.
Arkansas. Olson v. Swift & Co.,
122 Ark 611, 182 SW 903.
California. Gainer v. United Rail-
roads, 58 CalApp 459, 208 P 1013.
Illinois. Raxworthy v. Heisen, 191
IllApp 457; Anderson v. Chicago
City R. Co., 207 IllApp 427; Kusturin
v. Chicago & A. R. Co., 200 IllApp
55; Finley v. Federal Life Ins. Co.,
211 IllApp 66.
Indiana. Pittsburgh, C., C. & St.
L. R. Co. v. Smith, 190 Ind 656, 131
NE 516; Spickelmeir v. Hartman,
§25
INSTRUCTIONS — RULES GOVERNING
68
tion proceedings is erroneous where it assumes that the remain-
ing-lands will be benefited.76
It is clear that one may not complain of this vice in an
instruction given by the court at his request.77
§ 25. Assumption of facts — Established, uncontroverted or ad-
mitted facts.
The court may, however, assume the existence of facts with-
out invading the province of the jury, (1) where the evidence
establishes the facts, (2) or where such facts are not contro-
verted, (3) or are admitted.
(1) Facts established by the evidence may be assumed by
the court,78 as where the jury can draw but one conclusion
72 IndApp 207, 123 NE 232; Cook &
Bernheimer Co. v. Hagedorn, 82 Ind
App 444, 131 NE 788.
Iowa. Wells v. Chamberlain, 185
la 264, 168 NW 238.
Missouri. Morrow v. Franklin, 289
Mo 549, 233 SW 224; Henderson v.
Heman Constr. Co., 198 MoApp 423,
199 SW 1045; Roy v. Kansas City,
204 Mo App 332, 224 SW 132; Breen
v. United R. Co. (Mo), 204 SW 521;
Priebe v. Crandall (MoApp), 187 SW
605; Deming v. Alpine Ice Co. (Mo
App), 214 SW 271; Beall v. Kansas
City R. Co. (MoApp), 228 SW 834;
Jeffries v. Walsh Fire Clay Products
Co. (MoApp), 233 SW 259; Pruitt v.
Nat. Life & Ace. Co. (MoApp), 237
SW 852; Llywelyn v. Lowe (Mo
App), 239 SW 535; Schmitter v.
United R. Co. (MoApp), 245 SW
629.
There was no assumption by in-
struction which first required that
the jury find and believe various
matters therein stated. Yarde v.
Hines, 209 MoApp 547, 238 SW 151.
North Dakota. Watson v. Nelson,
42 ND 102, 172 NW 823.
Ohio. Armstrong1 v. Travelers Ins.
Co., 4 OhApp 46.
Texas. Rio Grande, E. P. & S. F.
R. Co. v. Starnes (TexCivApp), 185
SW 366.
Virginia. Norfolk & W. R. Co. v.
Parrish, 119 Va 670, 89 SE 923;
Mopsikov v. Cook, 122 Va 579, 95
SE 426.
76 Hatter v. Mobile County, 226
Ala 1, 145 S 151.
77 Davis v. Brown, 67 Mo 313;
Haggard v. German Ins. Co. of Free-
port, 111., 53 MoApp 98; Cole v.
Germania Fire Ins. Co., 99 NY 36,
1 NE 38.
78 Alabama. Bessemer Land &
Imp. Co. v. Campbell, 121 Ala 50,
25 S 793, 77 AmSt 17; Ferguson v.
Shipp, 198 Ala 87, 73 S 414 (place
of boundary corner); Southern Exp.
Co. v. Roseman, 206 Ala 681, 91 S
612. See also Somerall v. Citizens
Bank, 211 Ala 630, 101 S 429.
Arizona. Reid v. Topper, 32 Ariz
381, 259 P 397.
Arkansas. McGee v. Smitherman,
69 Ark 632, 65 SW 461; Miller v.
Ft. Smith Light & Trac. Co., 136
Ark 272, 206 SW 329.
California. Burrell v. Southern
California Canning Co., 35 CalApp
162, 169 P 405; Timbrell v. Sub-
urban Hosp., Inc., 4 Cal2d 68, 47 P2d
737.
Connecticut. C. I. T. Corp. v. Deer-
ing, 119 Conn 347, 176 A 553.
Georgia. Jones v. Wall, 22 GaApp
513, 96 SE 344; Watkins v. Stulb &
Vorhauer, 23 GaApp 181, 98 SE 94.
Illinois. Chicago City R. Co. v.
Carroll, 206 111 318, 68 NE 1087;
Vogler v. Chicago & Carterville Coal
Co., 196 IllApp 574 (ownership of
land damaged by overflow) ; Monk v.
Caseyville R. Co., 202 IllApp 641
(plaintiff had himself testified to the
facts) ; Kusturin v. Chicago & A. R.
69
PROVINCE OF COURT AND JURY
§25
from the evidence.79 It is sometimes stated to be a duty of
the trial court to assume the existence of undisputed facts.80
Thus where the evidence establishes the possession of a
promissory note, an instruction is not improper which tells the
Co., 209 IllApp 55, affd. 287 111 306,
122 NE 512; Robeson v. Greyhound
Lines, Inc., 257 IllApp 278.
An instruction is erroneous where
it assumes facts disproved by the
evidence. Smith v. Bellrose, 200 111
App 368.
Indiana. Roberts v. Kendall, 12
IndApp 269, 38 NE 424; Milhollin v.
Adams, 66 IndApp 376, 115 NE 803;
Southern Surety Co. v. Kinney, 74
IndApp 205, 127 NE 575; Pursley v.
Hisch, 119 IndApp 232, 85 NE2d 270.
Iowa. Dunning- v. Burt, 180 la 754,
162 NW 23; Read v. Reppert, 194 la
620, 190 NW 32 (ownership of auto-
mobile causing injury).
Kansas. Wade v. Empire Dist.
Elec. Co., 98 Kan 366, 158 P 28
(dangerous electric wires).
Kentucky. Henning v. Stevenson,
118 Ky 318, 80 SW 1135; Louisville
& N. R. Co. v. E. J. O'Brien & Co.,
168 Ky 403, 182 SW 227, AnnCas
1917D, 922 (unreasonable delay in
transportation) ; Ohio Valley Elec.
R. Co. v. Payne, 223 Ky 197, 3 SW2d
223.
Maine. Toole v. Bearce, 91 Me 209,
39 A 558.
Minnesota. Lemon v. De Wolf, 89
Minn 465, 95 NW 316.
Missouri. Gayle v. Missouri Car <&
Foundry Co., 177 Mo 427, 76 SW 987;
Cooley v. Dunham, 196 MoApp 399,
195 SW 1058; Kearse v. Seyb, 200
Mo App 645, 209 SW 635; Cole v.
Long, 207 Mo App 528, 227 SW 903;
McMillan v. Bausch (Mo), 234 SW
835 (unsafe roof) ; Neeley v. Snyder
(Mo App), 193- SW 610; Stratton v.
Nafziger Baking Co. (MoApp), 237
SW 538; Dodge v. Kirkwood (Mo
App), 260 SW 1012.
Nebraska. First Nat. Bank v. Sar-
geant, 65 Neb 594, 91 NW 595, 59
LRA 296; Watkins v. Union Pacific
R. Co., 103 Neb 75, 170 NW 358;
Thomas v. Otis Elevator Co., 103
Neb 401, 172 NW 53; Morris v. Mis-
souri Pacific R. Co., 107 Neb 788, 187
NW 130.
New York. Crossman v. Lurman,
57 AppDiv 393, 68 NYS 311.
Ohio. Northern Ohio Trac. & L.
Co. v. Peterson, 18 OhCirCt (N. S.)
242, 33 OhCirDec 14.
Oklahoma. Vanderslice v. Davis,
319 Okl 87, 248 P 585.
Pennsylvania. Thomas, Roberts,
Stevenson Co. v. Philadelphia & R.
R. Co., 256 Pa 549, 100 A 998 (ident-
ity clearly established) ; Eline v.
Western Maryland R. Co., 262 Pa 33,
104 A 857 (evidence showed fractur-
ed skull and instant death in colli-
sion. Not error to instruct that death
resulted from collision) ; Wolf Co. v.
Western Union Tel. Co., 24 PaSuper
129.
Rhode Island. Providence Ice Co.
v. Bowen, 44 RI 173, 114 A 186;
McNear, Inc. v. American & British
Mfg. Co., 44 RI 190, 115 A 709.
South Carolina. Riser v. Southern
R. Co., 67 SC 419, 46 SE 47.
The court may assume that a rail-
road trestle is an obvious place of
danger for a pedestrian. Tyler v.
Atlantic Coast Line R. Co., 104 SC
107, 88 SE 541.
Texas. Northern Texas Trac. Co.
v. Yates, 39 TexCivApp 114, 88 SW
283; McCauley v. McElroy (TexCiv
App), 199 SW 317 (agency rela-
tion).
Court may assume negligence in
suit for injury to passenger by de-
railment where derailment not ex-
plained by defendant. Galveston, H.
& S. A. R. Co. v. Miller (TexCiv
App), 191 SW 374.
Washington. Smith v. Spokane,
103 Wash 314, 174 P 2.
79 Barker v. Southern P. Co., 118
CalApp 748, 5 P2d 970, 6 P2d 982.
80 Associated Indem. Corp. v.
Baker, (TexCivApp) , 76 SW2d 153.
INSTRUCTIONS — RULES GOVERNING
70
jury that possession of a promissory note by the payee at the
time of his death is evidence tending to prove that there had
been no gift of the note.81 Where an injury is of such a nature
that pain and anguish necessarily follow, an instruction may
assume there was such pain and mental anguish.82 It is only
in a case where the testimony of a witness is not only unopposed
by direct evidence, but where it is not in conflict with the just
and proper inferences to be drawn from other facts proved in
the case, that it is proper for the court to treat the evidence
as wholly undisputed,83 So, though the answer denied that the
plaintiffs were minors, the court could in its instructions assume
the fact of their infancy where it was otherwise undisputed.84
(2) If a certain fact is not controverted, its truth may be
assumed.85
*« Oelke v. Theis, 70 Neb 465, 97
NW 588.
82 Dunn v. Northeast Elec. R. Co.,
81 MoApp 42.
ss Schulz v. Schulz, 113 Mich 502,
71 NW 854.
84 Blomquist v. Jennings, 119 Or
691, 250 P 1101.
85 Federal. Missouri Dist. Tel.
Co. v. Morris, 243 F 481.
Alabama. Birmingham R., Light &
Power Co. v. Jones, 146 Ala 277, 41
S 146; Southern R. Co. v. Hayes,
198 Ala 601, 73 S 945; Alabama
Power Co. v. Hines, 207 Ala 346,
92 S 611; Montgomery v. Ferguson,
207 Ala 430', 93 S 4; Montevallo
Min. Co. v. Little, 208 Ala 131, 93
5 873.
California. Timbrell v. Suburban
Hosp., Inc., 4 Cal2d 68, 47 P2d 737.
Colorado. Wolfer v. Redding, 48
Colo 58, 108 P 980.
Connecticut. McCaffrey v. Groton
6 S. St. R. Co., 85 Conn 584, 84 A
284; Ferrigino v. Keasbey, 93 Conn
445, 106 A 445; Brown Bag Filling
Mach. Co. v. United Smelting &
Aluminum Co., 93 Conn 670, 107 A
619.
Delaware. Truxton v. Fait &
Slagle Co., 1 Penn (Del) 483, 42 A
431, 73 AmSt 81.
Georgia. Greer v. Raney, 120 Ga
290, 47 SE 939; Oxford v. Oxford,
136 Ga 589, 71 SE 883; Elrod v.
Chamblee, 26 GaApp 703, 106 SE
915.
Illinois. Brennan v. Streator, 256
111 468, 100 NE 266; Chicago Union
Trac. Co. v. Newmiller, 116 IllApp
625, a±fd. 215 111 383, 74 NE 410.
Indiana. Indianapolis Trac. & Ter-
minal Co. v. Smith, 38 IndApp 160,
77 NE 1140; Union Trac. Co. v.
Elmore, 66 IndApp 95, 116 NE 837;
Davis Constr. Co. v. Granite Sand &
Gravel Co., 90 IndApp 379, 163 NE
240.
Iowa. State v. Wrangler, 151 la
555, 132 NW 22.
Kansas. McArthur v. Independent
Torpedo Co., 107 Kan 68, 190 P 787.
Kentucky. Otis Elev. Co. v. Wil-
son, 147 Ky 676, 145 SW 391; Coral
Gables v. Barnes, 247 Ky 292, 57 SW
2d 18.
Maryland. But see Martin Fertiliz-
er Co. v. Thomas & Co., 135 Md 633,
109 A 458.
Massachusetts. McGuire v. Law-
rence Mfg. Co., 156 Mass 324, 31
NE 3.
Michigan. Garrisi v. Kass, 201
Mich 643, 167 NW 833.
Minnesota. Johnson v. Crookston
Lbr. Co., 92 Minn 393, 100 NW 225;
Marchio v. Duluth, 133 Minn 470, 158
NW 612 (ownership of property
damaged by change of grade).
Missouri. Phelps v. Conqueror
Zinc Co., 218 Mo 572, 117 SW 705;
Midwest Nat. Bank & Trust Co. v.
Davis, 288 Mo 563, 233 SW 406;
Argeropoulos v. Kansas City R.
Co., 201 MoApp 287, 212 SW
71
PROVINCE OF COURT AND JURY
Thus in a suit involving claims to certain timber, the court
is within its rights in charging that the detention of the logs
was not disputed, where the record discloses no different situa-
tion.86 Where the court, in charging with reference to the
question as to whether a highway was maintained in a reason-
ably safe condition, instructs that "there is no question, under
the evidence, but there was a depression or hole, and an accumu-
lation of bark near it, in the highway," there can be no objection
if the testimony shows that the court's statement was justi-
fied.87 In an action between landlord and tenant where one of
the issues involved continued possession, it was not error for
the court to instruct the jury that if the tenant retained the
key and remained in possession the tenancy continued.88 If the
evidence of plaintiff in an accident case that the injuries were
inflicted by defendant's bus are not disputed, it is not error
369; Koenig v. Kansas City R.
Co. (Mo), 243 SW 118; Young v.
Tilley (MoApp), 190 SW 95; Mont-
gomery v. Hammond Packing Co.
(MoApp), 217 SW 867; Frank Hart
Realty Co. v. Ryan (MoApp), 218
SW 412; Jeffries v. Kansas City R.
Co. (MoApp), 220 SW 698; Zackwik
v. Hanover Fire Ins. Co. (Mo App),
225 SW 135; Curlin v. St. Louis
Merchants Bridge Terminal R. Co.
(MoApp), 232 SW 215; Patton v.
Eveker (MoApp), 232 SW 762;
Warren v. Curtis & Co. Mfg. Co.
(MoApp), 234 SW 1029; St. Louis
House Furnishing Co. v. Stoecker &
Price Storage <& Auction Co. (Mo
App), 238 SW 841; Foy v. United R.
Co. (MoApp), 243 SW 185 (existence
of speed ordinance not questioned);
Heather v. Palmyra (MoApp), 245
SW 390 (date of accident); Wood v.
Great American Ins. Co. (MoApp),
279 SW 205; Glassman v. Fainberg
(MoApp), 35 SW2d 950; Rowland v.
Boston Ins. Co. (MoApp), 55 SW2d
101L
Nebraska. Fitzgerald v. Union
Stockyards Co., 91 Neb 493, 136 NW
838.
New Mexico. Milliken v. Martinez,
22 NM 61, 159 P 952.
Ohio. Pittsburgh, C., C. & St.
L. R. Co, v. Dooley, 13 OhCirCt
(N. S.) 225, 22 OhCirDec 655;
Northern Ohio Trac. & L. Co. v.
Peterson, 18 OhCirCt (N. S.) 242,
33 OhCirDec 14; Cleveland, C.,
C. & St. L. R. Go. v. Hudson, 22
OhCirCt 586, 12 OhCirDec 661.
Oklahoma. Byers v. Ingraham, 51
Okl 440, 151 P 1061; Wichita Falls
& N. W. R. Co. v. Woodman, 64
Okl 326, 168 P 209; Landauer v.
Sublett, 126 Okl 185, 259 P 234.
Pennsylvania. Loughrey v. Penn-
sylvania R. Co., 284 Pa 267, 131 A
260.
South Carolina. Jennings v. Edge-
field Mfg. Co., 72 SC 411, 52 SE
113; Reardon v. Averbuck, 92 SC
569, 75 SE 959.
Texas. Thornburg v. Moon (Tex
CivApp), 180 SW 959; White v.
Peters (TexCivApp), 185 SW 659;
Townsend v. Pilgrim (TexCivApp),
187 SW 1021; Athens Elec. Light
& Power Co. v. Tanner (TexCiv
App), 225 SW 421.
Virginia. Carpenter v. Smithey,
118 Va 533, 88 SE 321 (litigation
beneficial where suit by attorney for
fee).
West Virginia. Ashland Coal &
Coke Co. v. Hull Coal & Coke Corp.,
67 WVa 503, 68 SE 124.
86 Johnson v. Moore, 28 Mich 3.
87 Little v. Iron River, 102 Wis
250, 78 NW 416.
88 Porter v. Taylor, 107 Conn 68,
139 A 649.
§25
INSTRUCTIONS — RULES GOVERNING
72
for the court to assume in the instructions that the injuries
were inflicted.89
So, in a case where the suit for ejection of a newsboy
from a train by the conductor and no evidence was offered that
the act of the conductor was beyond the scope of his authority,
the court was justified in assuming in an instruction that the
conductor had such authority.90 In action based on Federal
Employers' Liability Act, the court may in its instructions as-
sume that tracks used by railroad under an arrangement with
the owner were a part of its line, such fact being uncontro-
verted.91
(3) The court may assume facts admitted to be true,92 either
by the pleadings,93 or by the parties in the course of the trial,94
89 Roark Transp. v. Sneed, 188
Ark 928, 68 SW2d 996.
90 Griffin v. Kansas City R. Co.,
199 MoApp 682, 204 SW 826.
9 ' Lovett v. Kansas City Terminal
R. Co., 316 Mo 1246, 295 SW 89.
92 Alabama. Miller v. Millstead &
Hill, 17 AlaApp 6, 81 S 182.
Georgia. Morrison v. Cureton, 139
Ga 299, 77 SE 160.
Indiana, Horka v. Wieczorek, 64
IndApp 387, 115 NE 949.
Kentucky. Burbank v. Jones, 194
Ky 830, 241 SW 358.
Michigan. Burt v. Long, 106
Mich 210, 64 NW 60; Johnston v.
Cornelius, 200 Mich 209, 166 NW
983, LRA 1918D, 880' (fact conceded
by complaining1 party on former
trial).
Missouri. Brown v. Emerson, 66
MoApp 63; Palmer v. Shaw Trans-
fer Co. (MoApp), 209 SW 882;
Byrnes v. Poplar Bluff Printing Co.
(Mo), 74 SW2d 20; Hieken v. United
R. Co. (MoApp), 227 SW 654;
Majors v. Kansas City R. Co. (Mo
App), 228 SW 517.
North Carolina. Crampton v. Ivie,
124 NC 591, 32 SE 968.
Ohio. Northern Ohio Trac. & L.
Co. v. Peterson, IB OhCirCt (N. S.)
242, 33 OhCirDec 14; Cleveland, C.,
C. & St. L. R. Co. v. Hudson, 22 Oh
CirCt 586, 12 OhCirDec 661.
South Carolina. Latour v. South-
ern R. Co., 71 SC 532, 51 SE 265;
Reardon v. Averbuck, 92 SC 569, 75
SE 959; Denny v. Doe, 116 SC 307,
108 SE 95.
Texas. New Fenfield Townsite Co,
v. King (TexCivApp), 204 SW 788
(question of breach of contract ad-
mitted if existence of contract estab-
lished); Texas & Pacific R. Co. v.
Dickey (TexCivApp), 70 SW2d 614.
93 California. Moore v. Pacific
Coast Steel Co., 171 Cal 489, 153 P
912.
Kansas. Wiley v. Keokuk, 6 Kan
94.
Kentucky. Orth v. Clutz's Admr.,
18 BMon (57 Ky) 223.
Missouri. Brown v. Emerson, 66
MoApp 63; State ex rel. Nat. News-
papers' Assn. v. Ellison (Mo), 200
SW 433.
Ohio. Place v. Elliott, 147 OhSt
499, 72 NE2d 103.
94 Alabama. McCaa v. Thomas,
207 Ala 211, 92 S 414.
Arkansas. Kelley v. Pacific Fruit
& Produce Co., 173 Ark 1181, 295
SW 23.
California. People v. Phillips, 70
Cal 61, 11 P 493.
Iowa. Blaul v. Tharp, 83 la 665,
49 NW 1044.
Michigan. Burt v. Long, 106 Mich
210, 64 NW 60.
Minnesota. Johnson v. Anderson,
172 Minn 574, 216 NW 237.
Missouri. Taylor v. Scherpe &
Koken Architectural Iron Co., 133
Mo 349, 34 SW 581; Chapman v.
Brown, 192 MoApp 78, 179 SW 774;
13 PROVINCE OF COURT AND JURY § 26
or by their counsel.95 Where a damage action was predicated on
the negligence of a railroad in exceeding the speed prescribed
by city ordinance, and the ordinance was introduced over the
sole objection that it was unreasonable and discriminatory, the
court in its charge to the jury may assume that the ordinance
is in force.96
Thus where liability has been admitted, the court may in-
struct that "the liability of the company is not disputed, but
the amount of damages, if any, is questioned."97 So, the court
may charge the amount to be recovered by plaintiff should the
jury find for plaintiff where the controversy is not over the
amount of the recovery but solely over liability.98 So, where
the plaintiff admits that his action does not involve certain
property, a charge may be given limiting the jury, in their de-
liberations, to the property concerned in the litigation.99 So,
the court may assume expectancy of life based on the American
Mortality Tables where there is no evidence of expectancy dif-
ferent from that shown by the tables.1 And so, where the only
issue was as to the manner in which injuries were occasioned,
the court very properly charged that the injuries were sus-
tained.2 It seems very clear that the court may assume the
existence of facts agreed upon by counsel for both parties.3
The court may assume the existence of a fact that a party is
estopped to deny.4
§ 26. Assumption of facts in criminal cases.
The rules as to the assumption of facts in civil cases apply
with equal force to instructions in criminal cases.
(1) Instructions in criminal cases must not assume a fact
in dispute and which must be found by the jury.5
Irwin v. Wilhoit (MoApp), 199 SW 9S Jones v. S. IL Kress & Co., 54
588. Okl 194, 153 P 655. See also Cham-
Oklahoma. Sturm v. American bers v. Farnham, 236 F 886.
Bank & Trust Co. (Okl), 44 P2d "Lee v. O'Qiiin, 103 Ga 355, 30
974. SE 356.
Utah. Cooper v, Denver & R. G. r Chicago, R. L & P. R. Co. v.
R. Co., 11 Utah 46, 39 P 478. Johnson, 71 Okl 118, 175 P 494.
95 Illinois Steel Co. v. Muza, 164 2 Sheffield Co. v. Harris, 183 Ala
Wis 247, 159 NY 908. 357, 61 S 88.
96 Simpson v. St. Louis-San Fran- 3 State v. Pritchard, 16 Nev 101.
cisco R. Co., 334 Mo 1126, 70 SW2d 4 Continental Ins. Co. v. Norman,
904. 71 Okl 146, 176 P 211.
97 Illinois. North Chicago St. R. s Alabama. "Williams v. State,
Co. v. Honsinger, 175 111 318, 51 161 Ala 52, 50 S 59; Underwood
NE 613. v. State, 179 Ala 9, 60 S 842;
Missouri. See also Rogles v. Thomas v. State, 206 Ala 416, 90 S
United R. Co. (Mo), 232 SW 93. 295; Pynes v. State, 207 Ala 395, 92
Virginia. Seaboard Air Line R. v. S 663; Parks v. State, 7 AlaApp 9,
Abernathy, 121 Va 173, 92 SE 913. 60 S 995; Jennings v. State, 15 Ala
§26
INSTRUCTIONS — RULES GOVERNING
74
The court must not directly or Indirectly assume the guilt
of accused of the crime charged,6 or other crimes.7 A court
must not tell the jury in any case that the defendant's testimony
App 116, 72 S 690; Pounds v. State,
15 AlaApp 223, 73 S 127.
There is no error in instructing
the jury on what day of the week
a certain day of the month fell.
Koch v. State, 115 Ala 99, 22 S 471.
Arizona. Lauterio v. State, 23
Ariz 15, 201 P 91.
California. People v. Buster, 53
Gal 612; People v. Matthai, 135 Cal
442, 67 P 694; People v. McGee, 14
CalApp 99, 111 P 264; People v.
Wieler, 55 CalApp 687, 204 P 410.
Colorado. McAndrews v. People,
71 Colo 542, 208 P 486, 24 ALR 655
(assumption of aged and weakened
condition of assaulted party).
Connecticut. State v. Alderman,
83 Conn 597, 78 A 331.
Florida. Doyle v. State, 39 Fla
155, 22 S 272, 63 AmSt 159; Wal-
lace v. State, 41 Fla 547, 26 S 713;
Cook v. State, 46 Fla 20, 35 S 665;
Sloan v. State, 70 Fla 216, 70 S 23.
Georgia. Cooley v. State, 152 Ga
469, 110 SE 449; Vincent v. State,
153 Ga 278, 112 SE 120 (assump-
tion that defendant went to de-
ceased's place of business to kill
him); Davis v. State, 153 Ga 669,
113 SE 11.
Illinois. People v. Bissett, 246
IU 516, 92 NE 949; People v. John-
son, 150 IllApp 424.
Iowa. State v. Johnson, 192 la
813, 185 NW 574.
Kansas. State v. Moore, 110 Kan
732, 205 P 644; State v. Johnson, 6
KanApp 119, 50 P 907.
Kentucky. Goins v. Common-
wealth, 167 Ky 603, 181 SW 184.
Michigan. People v. Schick, 75
Mich 592, 42 NW 1008.
Missouri. State v. Murphy, 292
Mo 275, 237 SW 529; State v. Nor-
man (Mo), 232 SW 452; State v.
Johnson (Mo), 234 SW 794 (age of
prosecutrix in rape); State v. Bay-
less, 362 Mo 109, 240 SW2d 114.
Montana. State v. Harrington, 61
Mont 373, 202 P 577 (liquor law
violation) ; State v. Daems, 97 Mont
486, 37 P2d 322.
Nevada. State v. Buralli, 27 Nev
41, 71 P 532.
New Hampshire. State v. Rhea-
ume, 80 NH 319, 116 A 758.
North Carolina. State v. Hand,
170 NC 703, 86 SE 1005.
Ohio. Mead v. State, 26 OhSt
505; Whiting v. State, 48 OhSt 220,
27 NE 96; Fouts v. State, 113 OhSt
450, 149 NE 551; Freeman v. State,
119 OhSt 250, 163 NE 202; Zimmer-
man v. State, 42 OhApp 407, 182 NE
354; Riegle v. State, 45 OhApp 251,
186 NE 875, 39 OLE 17; State v.
Del Bello, 8 OhDec 455.
Pennsylvania. Commonwealth v.
Watson, 117 PaSuperCt 594, 178 A
408.
South Carolina. State v. Driggers,
84 SC 526, 66 SE 1042, 137 AmSt
855; State v. Bazen, 89 SC 260, 71
SE 779.
Texas. Williams v. State, 37 Tex
Cr 238, 39 SW 644; Ragazine v.
State, 47 TexCr 46, 84 SW 832; Ellis
v. State, 59 TexCr 630, 130 SW 171;
Sheppard v. State, 63 TexCr 569, 140
SW 1090 (accomplice); Stephens v.
State, 90 TexCr 245, 234 SW 540.
An instruction that mere weak-
ness of mind is no defense to crime
provided accused has sufficient rea-
son to know the quality of the act
charged against him, and knew the
difference between the right and
wrong of it, does not assume that
accused was weak-minded. Cox v.
State, 60 TexCr 471, 132 SW 125.
Utah. State v. Gordon, 28 Utah
15, 76 P 882.
West Virginia. State v. Dickey,
46 WVa 319, 33 SE 231.
Wisconsin. Cupps v. State, 120
Wis 504, 97 NW 210, 98 NW 546,
102 AmSt 996.
6 Federal. Sturcz v. United States,
57 F2d 90.
California. People v. Howland, 13
75
PROVINCE OF COURT AND JURY
§26
is false.8 The court should not assume that venue has been
proved,9 the existence of the accomplice relation,10 the age of
the prosecutrix in a rape case,1 * or the imxninency of peril justi-
fying self-defense. 1 2 But there is no assumption of facts in in-
structions which merely state the material averments of the
indictment, 1 3 or the contentions of the parties, ! 4 or abstract legal
propositions,15 The truth of an accomplice's testimony is held
to be assumed by an instruction that upon corroboration it war-
rants a conviction. * Q
CalApp 363, 109 P 894; People v.
Hansen (CalApp), 19 P2d 993.
Kentucky. Caudill v. Common-
wealth, 220 Ky 191, 294 SW 1042.
Missouri. State v. Collins, 292
Mo 102, 237 SW 516 (flight of de-
fendant); State v. Warren, 326 Mo
843, 33 SW2d 125; State v. Mazur
(MoApp), 77 SW2d 839.
An instruction that a witness is
an accomplice assumes that the wit-
ness has committed a crime, for un-
til a crime has been committed there
can be no accomplice. State v. Potts,
239 Mo 403, 144 SW 495.
Ohio. Fouts v. State, 113 OhSt
450, 149 NE 551; Premack v. State,
11 OhCirCt (N. S.) 364, 20 OhCirDec
828.
Oklahoma. Nichols v. State, 39
OklCr 32, 262 P 1076.
Utah. State v. Hanna, 81 Utah
583, 21 P2d 537.
West Virginia. State v. Newman,
101 WVa 356, 132 SE 728.
7 Idaho. State v. Hines, 43 Idaho
713, 254 P 217.
Montana. State v. Daems, 97
Mont 486, 37 P2d 322.
Oklahoma. Call v. State, 39 OklCr
264, 264 P 643.
Texas. Rice v. State, 49 TexCr
569, 94 SW 1024; Glenn v. State
(TexCr), 76 SW 757; Arnold v.
State (TexCr), 83 SW 205.
8 People v. Ohanian, 245 NY 227,
157 NE 94.
9 People v. Kubulis, 298 111 523,
131 NE 595; State v. McCradit,
149 La 825, 90 S 210.
10 Alabama. Moore v. State, 15
AlaApp 152, 72 S 596.
Illinois. People v. Gleitsmann
(111), 197 NE 557.
Missouri. State v. Martin (Mo),
56 SW2d 137.
Ohio. Crouch v. State, 37 OhApp
366, 174 NE 799.
Texas. Sarli v. State, 80 TexCr
161, 189 SW 149.
1 ! State v. Mundy (Mo), 76 SW2d
1088.
l2Allsup v. State, 15 AlaApp
121, 72 S 599.
1 3 Georgia. Griggs v. State, 17
GaApp 301, 86 SE 726.
Illinois. People v. Fricano, 302
111 287, 134 NE 735.
Nebraska. Knights v. State, 58
Neb 225, 78 NW 508, 76 AmSt 78.
West Virginia. There was no as-
sumption by correct definition of
statutory offense. State v. Stafford,
89 WVa 301, 109 SE 326.
1 4 California. People v. Worden,
113 Cal 569, 45 P 844.
Georgia. Stanford v. State, 153
Ga 219, 112 SE 130; Davis v. State,
153 Ga 669, 113 SE 11; Allen v.
State, 27 GaApp 625, 110 SE 627.
Minnesota. State v. Christianson,
131 Minn 276, 154 NW 1095.
New Jersey. -State v. Kind, 80
NJL 176, 75 A 438.
North Carolina. State v. Black-
welder, 182 NC 899, 109 SE 644;
State v. Kincaid, 183 NC 709, 110
SE 612.
1 s Georgia. Brooks v. State, 19
GaApp 3, 90 SE 989 (definition of
place of business).
Nevada. State v. Willberg, 45
Nev 183, 200 P 475.
Ohio. Montgomery v. State, 11
Oh 424; Eobbins v. State, 8 OhSt
131.
1 6 Arkansas. But see Copper-
INSTRUCTIONS — RULES GOVERNING
76
(2) The court may, however, assume as true facts which are
undisputed.17 In a prosecution for murder, where it was uneon-
troverted that the defendant ran over the deceased with his
automobile, an instruction is not erroneous for assuming that
the defendant inflicted the fatal injuries though it further told
the jury that if the deceased was suffering from a disease and
died from the combined effects of the injury and the disease, then
the act of the defendant caused death. * 8 Neither is there a viola-
tion of the rule by the assumption that the crime was committed
where the only controversy is as to the defenses interposed by
the accused. ' 9 It is not error for the court to instruct on accom-
plice testimony in cases where the fact that the witness was an
accomplice is not controverted.20
smith v. State, 149 Ark 597, 233 SW
777.
Georgia. See Riley v. State, 153
Ga 182, 111 SE 729.
New York. People v. Reilly, 25
Misc 45, 53 NTS 1005.
Texas. Bell v. State, 39 TexCr
677, 47 SW 1010.
1 7 Alabama. Murphy v. State, 14
AlaApp 78, 71 S 967.
Arkansas. Dollar v. State, 153
Ark 410, 241 SW 1 (sale of intoxi-
cating liquor).
Georgia. McCloud v. State, 166
Ga 436, 143 SE 558 (that accused
was in the custody of slain officer
at time of killing); Miller v. State,
151 Ga 710, 108 SE 38.
Illinois. People v. Walinsky, 300
111 92, 132 NE 757.
Indiana. White v. State, 178 Ind
317, 99 NE 417.
If there is actually no evidence
in the case to establish a particular
fact, the court may so assume in
the instructions. Hines v. State,
197 Ind 575, 150 NE 371.
Iowa. State v. Graves, 192 la
623, 185 NW 78; State v. Johnson,
192 la 813, 185 NW 574.
Michigan. People v. Hubbard, 92
Mich 322, 52 NW 729; People v.
Wilson, 242 Mich 532, 219 NW 641.
Minnesota. State v. Damuth, 135
Minn 76, 160 NW 196.
Missouri. State v. Moore, 101 Mo
316, 14 SW 182; State v. Bobbst,
269 Mo 214, 190 SW 257; State v.
Fletcher (Mo), 190 SW 317; State
v. Moore (Mo), 80 SW2d 128; State
v. Farr (MoApp), 277 SW 354.
Montana. State v. Welch, 22
Mont 92, 55 P 927.
New Jersey. State v. Caruso, 6
NJMisc 112, 140 A 27; State v.
Pedagog, 9 NJMisc 300, 153 A 646.
Oregon. State v. Watson, 47 Or
543, 85 P 336.
South Carolina. State v. Nickels,
65 SC 169, 43 SE 521.
Texas. Sawyer v. State, 104
TexCr 522, 286 SW 209; Frazier v.
State, 119 TexCr 217, 43 SW2d 597.
1 8 State v. Galle, 214 Wis 46, 252
NW 277.
( 9 Arkansas. McConnell v. Boone-
ville, 123 Ark 561, 186 SW 82.
California. People v. Putman, 129
Cal 258, 61 P 961.
Colorado. Komrs v. People, 31
Colo 212, 73 P 25.
Indiana. Hoover v. State, 161
Ind 348, 68 NE 591.
Kansas. State v. Toliver, 109
Kan 660, 202, P 99, 20 ALR 502.
Mississippi. Dean v. State, 85
Miss 40, 37 S 501.
Missouri. State v. Holloway, 156
Mo 222, 56 SW 734.
Texas. There was no error in as-
suming that defendant took the
property where the only defense was
that he took it for the purpose of
taking care of it for the prosecutor.
Tanner v. State (TexCr), 44 SW
489.
20 Clines v. Commonwealth, 221
Ky 461, 298 SW 1107.
77
PROVINCE OF COURT AND JURY
826
(3) The court may assume facts which are admittedly true.21
A fact admitted by counsel for the accused, as to which there is
no issue, may be assumed to be true by the court in its instruc-
tions.22
(4) The court may assume true facts that are incontrovertibly
proved.23 So, the court may tell the jury that a count of the
indictment is not to be considered where there is no evidence to
sustain such count.24 The evidence may be such as to justify
the statement of the court to the jury that the fatal wound was
inflicted by a revolver in the defendant's hand.25 It was held
21 Alabama. It was not an as-
sumption to refer to the knowledge
of defendant of an event as a fact
where his testimony as well as the
evidence of the state showed such
knowledge. Sherrill v. State, 138
Ala 3, 35 S 129.
California. People v. Roderick,
118 CalApp 457, 5 P2d 463; People
v. Bernfield, 140 CalApp 613, 35 P2d
585.
Florida. It was not error to as-
sume fact proved by the defendant.
Edwards v. State, 62 Fla 40, 56 S
401.
Georgia. Farmer v. State, 49
GaApp 323, 175 SE 401.
Michigan. If there is any evi-
dence as to a particular fact ques-
tion, the court should not state to
the jury that it is admitted. People
v. Burlingame, 257 Mich 252, 241
NW 253.
Missouri. State v. Vaughan, 141
Mo 514, 42 SW 1080; State v. Bar-
bata (Mo), 80 SW2d 865.
Nebraska. Morgan v. State, 51
Neb 672, 71 NW 788; Pisar v.
State, 56 Neb 455, 76 NW 869.
Nevada. Where both the accused
and his counsel admitted the fact of
flight, it was not error for the court
to assume that there was evidence
of flight. State v. Mangana, 33 Nev
511, 112 P 693.
New York. People v. Walker, 198
NY 329, 91 NE 806.
South Carolina. State v. Ayres,
86 SC 426, 68 SE 625.
South Dakota. State v. Sonnen-
schein, 37 SD 585, 159 NW 101.
Wisconsin. Scheldberger v. State
(Wis), 235 NW 419.
22 Swain v. State, 162 Ga 777, 135
SE 187.
23 Alabama. Pugh v. State, 4
AlaApp 144, 58 S 936.
Arizona. Porris v. State, 30 Ariz
442, 247 P 1101.
Georgia. Roark v. State, 105 Ga
736, 32 SE 125.
Kansas. State v, Mortimer, 20
Kan 93.
Kentucky. Howard v. Common-
wealth, 246 Ky 738, 56 SW2d 362.
Minnesota. State v. Fleetwood,
111 Minn 70, 126 NW 485, 827.
Nebraska. Welsh v. State, 60 Neb
101, 82 NW 368.
The court may assume the exist-
ence of collateral fact established
by uncontroverted evidence and
which tends to prove one of the con-
stituent elements of a crime. Welsh
v. State, 60 Neb 101, 82 NW 368.
Oklahoma. Bartell v. State, 4
OklCr 135, 111 P 669.
Pennsylvania. Commonwealth v.
Brletic, 113 PaSuperCt 508, 173 A
686.
South Dakota. State v. Shepard,
30 SD 219, 138 NW 294.
Texas. Winfield v. State, 44
TexCr 475, 72 SW 182 (accomplice);
Dugat v. State, 67 TexCr 46, 148
SW 789.
Wisconsin. Cupps v. State, 120
Wis 504, 97 NW 210, 98 NW 546,
102 AmSt 996.
24 Isbell v. State, 18 AlaApp 223,
90 S 55.
25 People v. Arnett, 239 Mich 123,
214 NW 231.
§27
INSTRUCTIONS — RULES GOVERNING
78
error to submit to a jury the question whether the defendant
had understood a conversation in English that had occurred in
his presence, where the evidence was undisputed that he did not
understand the English language.26
In homicide cases, there is no assumption that defendant
killed the victim by the giving of correct instructions on the
subject of self -defense,27 or on the question of motive.28
§ 27. Weight of contradictory evidence for jury in civil cases.
It is the province of the jury alone to weigh and sift contra-
dictory evidence, and it is prejudicial for the court to determine
the weight of such evidence.
Conflicting evidence is for the jury, and the trial judge cannot
draw conclusions for them,29 or give an instruction that the
298; Straten v. Spencer, 52 CalApp
98, 197 P 540; People v, Kasch, 136
CalApp 385, 28 P2d 936; In re Sar-
gavak's Estate, 95 CalApp2d 73, 212
P2d 541.
Colorado. Denver v. Stutzman,
95 Colo 165, 33 P2d 1071.
Connecticut. State v. Schutte, 97
Conn 462, 117 A 508.
District of Columbia. Metropoli-
tan R. Co. v. Martin, 15 AppDC 552.
Georgia. Western & A. R. Co. v.
Roberts, 144 Ga 250, 86 SE 933.
In Hirsch v. Plowden, 35 GaApp
763, 134 SE 833, the court expressed
the opinion that plaintiff was totally
and permanently disabled, that being
one of the controverted issues in
the case.
Illinois. Lundquist v. Chicago R.
Co., 305 111 106, 137 NE 92; People
v. Angelica, 358 111 621, 193 NE 606;
Johnson v. Galesburg & K. Elec. R.
Co., 193 IllApp 387.
It is improper for the court to
discuss in the instructions the rela-
tive weight of positive and negative
testimony. Hofer v. Chicago, B. &
Q. R. Co., 237 IllApp 309.
Iowa. Wildeboer v. Peterson, 187
la 1169, 175 NW 349.
Michigan. Baldwin v. Hall, 323
Mich 25, 34 NW2d 539.
Missouri. Berry v. Sedalia, 201
MoApp 436, 212 SW 34 (instruction
equivalent to demurrer to evidence) ;
De Witt v. Syfon, 202 MoApp 469,
v. United States, 9 F2d
268.
27 Arkansas. Cunningham v.
State, 149 Ark 336, 232 SW 425.
California. People v. Groves, 140
CalApp 125, 35 P2d 202.
Illinois. People v. Tamborski, 356
111 11, 190 NE 90.
Indiana. Lloyd v. State, 206 Ind
359, 189 NE 406.
28 Jackson v. State, 152 Ga 210,
108 SE 784.
29 Alabama. Alabama Midland R,
Co. v. Thompson, 134 Ala 232, 32 S
672; Renfroe v. Collins & Co., 201
Ala 489, 78 S 395; De Bardelaben
v. State, 205 Ala 658, 88 S 827; City
Nat. Bank v. Nelson, 214 Ala 297,
107 S 849; Roberson v. State, 18
AlaApp 143, 90 S 70.
Arkansas. Twist v. Mullinix, 126
Ark 427, 190 SW 851; Free v. Max-
well, 138 Ark 489, 212 SW 325;
Benson v. State, 149 Ark 633, 233
SW 758; Pate v. State, 152 Ark
553, 239 SW 27 (statements by ac-
cused after commission of homi-
cide) ; Milton v. Jeffers, 154 Ark 516,
243 SW 60.
It was improper to tell the jury
that their functions as judges of
the weight of evidence were "il-
limitable, final, and unfettered."
Texarkana & Ft. S. R. Co. v. Adcock,
149 Ark 110, 231 SW 866.
California. National Bank v. Whit-
ney, 181 Cal 202, 183 P 789, 8 ALR
79
PROVINCE OF COURT AND JURY
S27
fact in controversy has30 or has not been established31 by the
evidence presented.
211 SW 716; Morrill v. Kansas City
(MoApp), 179 SW 759.
Where, in a rape case, testimony
had been admitted to the effect that
the defendant had tried to bribe the
sheriff to let him escape, and had
made statements tending to cor-
roborate prosecutrix, it presented
a question of fact for the jury's de-
termination. State v. Mundy (Mo),
76 SW2d 1088.
Montana. Kansier v. Billings, 56
Mont 250, 184 P 630.
Nebraska. Skow v. Locks (Neb),
91 NW 204.
New Jersey. Hardy v. Delaware,
L. & W. R. Co., 97 NJL 358, 118 A
104.
New Mexico. Victor American
Fuel Co. v. Melkusch, 24 NM 47,
173 P 198.
New York. First Nat. Bank v.
Nat. Surety Co., 243 NY 34, 152 NE
456, 46 ALE 967; Corrigan v. Funk,
109 AppDiv 846, 96 NYS 910; Barth
v. Drago, 242 AppDiv 631, 272 NYS
109.
North Carolina. Swain v. Clem-
mons, 172 NC 277, 90 SE 193; State
v. Moore, 192 NC 209, 134 SE 456
(holding it not erroneous for the
court to tell the jury that the testi-
mony of certain witnesses in the case
was not contradicted).
The rule is violated by an instruc-
tion that the location of the dis-
tillery on the land of another should
be considered as tending to show
that defendant was not guilty. State
v. Grouse, 182 NC 835, 108 SE 911.
Ohio. State v. Tuttle, 67 OhSt
440, 66 NE 425, 93 AmSt 689;
Painesville Utopia Theatre Co. v.
Lautermilch, 118 OhSt 167, 160 NE
683; Scaccuto v. State, 118 OhSt
397, 161 NE 211; Sandoffsky v.
State, 29 OhApp 419, 163 NE 634;
Ohio Exchange for Educational
Films Co. v. P. & R. Amusement
Co., 45 OhApp 10, 186 NE 746,
Oklahoma. Clarke v. Uihlein, 52
Okl 48, 152 P 589; Smith v. State,
56 OklCr 318, 38 P2d 591.
Oregon. Lawrence v. Portland R.,
Light & Power Co., 91 Or 559, 179
P 485.
Pennsylvania. Smith v. Jackson
Tp., 26 PaSuperCt 234.
South Carolina. Enlee v. Sea-
board Air Line R., 110 SC 137, 96
SE 490; Glenn v. Walker, 113 SC
1, 100 SE 706.
Texas. Barnes v. State, 90 TexCr
51, 232 SW 312; Dunn v. State, 92
TexCr 126, 242 SW 1049; Cosgrove
v. Smith (TexCivApp), 183 SW 109
(disputed boundary line); San An-
tonio, U. & G. R. Co. v. Dawson
(TexCivApp), 201 SW 247; Rio
Grande & E. P. R. Co. v. J. H. Rus-
sell & Son (TexCivApp), 212 SW
530; Emerson-Brantingham Imp. Co.
v. Roquemore (TexGivApp), 214 SW
679; Land v. Dunn (TexCivApp),
226 SW 801.
It was a charge on the weight of
evidence that accused could not be
convicted of a higher grade of as-
sault than simple assault. Tucker
v. State, 91 TexCr 538, 239 SW
978.
Virginia. Mopsikov v. Cook, 122
Va 579, 95 SE 426; Price v. Com-
monwealth, 132 Va 582, 110 SE 349.
30 Federal. Ward v. Morrow, 15
F2d 660.
California, People v. Woodcock,
52 CalApp 412, 199 P 565; People v.
Marconi, 118 CalApp 683, 5 P2d 974.
Georgia. Florida Cent. & P. R.
Co. v. Lucas, 110 Ga 121, 35 SE
283; Murray v. State, 28 GaApp
101, 110 SE 418.
Idaho. Judd v. Oregon Short Line
R. Co. (Idaho), 44 P2d 291.
Illinois. Holland v. Peoples Bank
& Trust Co., 303 111 381, 135 NE
717 (testamentary capacity); People
v. Brothers, 347 111 530, 180 NE 442.
Iowa. Bremhorst v. Phillips Coal
Co., 202 la 1251, 211 NW 898.
27
INSTRUCTIONS — RULES GOVERNING
80
The courts in absence of statute cannot, as a matter of law,
where the evidence is conflicting declare what effect shall be
given any particular act or circumstance,32 or the inferences
that may be drawn from a particular state of facts.33 The court
should not give a charge ascribing a certain effect to a particular
part of the evidence.34 Although the evidence may appear to
Michigan. Connor v. McRae, 193
Mich 682, 160 NW 479.
North Carolina. State v. Brink-
ley, 183 NC 720, 110 SE 783.
Ohio. Interstate S. S. Co. v. Chan-
fordi, 22 OhCirCt (N. S.) 310, 28
OhCirDec 477.
Texas. Galveston, H. & S. A. R.
Co. v. Manns, 37 TexCivApp 356,
84 SW 254; Houston Chronicle Pub-
lishing Co. v. Murray (TexCivApp),
185 SW 407 (master and servant re-
lation).
Washington. State v. Hilsinger,
167 Wash 427, 9 P2d 357.
3 i Alabama. Montgomery St. R.
Co. v. Rice, 142 Ala 674, 38- S 857;
Denham v. State, 18 AlaApp 145,
90 S 129; Alabama Great Southern
R. Co. v. Bonner (Ala), 39 S 619.
Florida. Sessions v. State, 82
Fla 248, 89 S 553.
Illinois. Erwin v. Johnson, 200
IllApp 644.
Michigan, Morain v. Tesch, 214
Mich 699, 183 NW 899; People v.
Toner, 217 Mich 640, 187 NW 386,
23 ALR 433.
North Carolina. Royal v. Dodd,
177 NC 206, 98 SE 599.
Oklahoma. Grayson v. Damme,
59 Okl 214, 158 P 387.
Pennsylvania. Solomon v. Ford,
108 PaSuperCt 43, 164 A 92.
Virginia. Myers v. Common-
wealth, 132 Va 746, 111 SE 463.
32 Federal. United States v.
Coward, 76 F2d 875.
Alabama. Orr v. State, 225 Ala
642, 144 S 867; Carter v. Ne-Hi
Bottling: Co., 226 Ala 324, 146 S 821.
California. Zerbe v. United Rail-
roads, 56 CalApp 583, 205 P 887;
People v. Vaughan, 131 CalApp 265,
21 P2d 438.
Georgia. Moultrie v. Land, 145
Ga 479, 89 SE 485 (acts not amount-
ing to negligence).
Illinois. People v. Lawson, 328
111 602, 160 NE 125.
Indiana. Talge Mahogany Co. v.
Burrows, 191 Ind 167, 130 NE 865;
Lauer v. Roberts, 99 IndApp 216,
192 NE 101.
North Carolina. Perry v. Norfolk
Southern R. Co., 171 NC 38, 87 SE
948; Roanoke R. & Lbr. Co. v.
Privette, 178 NC 37, 100 SE 79.
Ohio. MacDiarmid Candy Co. v.
Schwartz, 11 OhApp 303; Newland
v. State, 29 OhApp 135, 163 NE 56.
Oklahoma. Littlefield Loan & Inv.
Co. v. Walkley & Chambers, 65 Okl
246, 166 P 90.
Oregon. Southern Oregon Co. v.
Right, 112 Or 66, 228 P 132, 832.
South Carolina. Gathings v. Great
Atlantic & Pacific Tea Co., 168 SC
385, 167 SE 652.
Texas. Perez v. Maverick (TexCiv
App), 202 SW 199; Dodson v. Wat-
son (TexCivApp), 225 SW 586.
Utah. Smith v. Cummings, 39
Utah 306, 117 P 38.
33 Alabama. Parnel v. Farmers
Bank & Trust Co., 16 AlaApp 292,
77 S 442.
Arkansas. Union Seed & Fer-
tilizer Co. v. St. Louis, I. M. & S. R.
Co., 121 Ark 585, 181 SW 898
(inference that fire set out by pass-
ing locomotive).
Illinois. Pridmore v. Chicago, R.
I. & P. R. Co., 275 111 386, 114 NE
176; Crisler v. Chicago City R. Co.,
204 IllApp 491.
Michigan. Wood v. Standard
Drug Co., 190 Mich 654, 157 NW
403.
Minnesota. Farrell v. G. 0. Mil-
ler Co., 147 Minn 52, 179 NW 566.
34 Alabama. Tingle v. Worthing-
ton, 215 Ala 126, 110 S 143.
81 PROVINCE OF COURT AND JURY § 27
the court to be clear, strong and convincing, yet the court may
not state that fact to the jury.35
Illustrations of this type of error : The court encroaches on
the domain of the jury by charging that the failure of a bank
was prima facie evidence of insolvency.36 If the instruction in-
dicates to the jury that the evidence is sufficient to establish
any ultimate fact in the prosecution's case, it is erroneous.37
So instructions are erroneous which impute conclusivness to
the verdicts of coroners on questions as to causes of injuries,38
and responsibility therefor.39 Where the evidence is in direct
conflict upon the principal fact at issue, an instruction is
erroneous which tells the jury that "where the testimony of
witnesses is irreconcilably conflicting, they should give great
weight to the surrounding circumstances in determining which
witness is entitled to credit."40 It is error in an action on a
claim against a decedent for the court to charge that the claim
should be considered with suspicion and be clearly established.41
There is an encroachment on the prerogatives by a charge
which places more confidence in the testimony given by the wit-
nesses for one party than in the testimony of the other side and
the court announces that the verdict will be set aside unless the
jury acts similarly.42 So, it is an invasion of the province of the
jury for the court to instruct in a rape case that the defendant
should be found guilty if the jury believed the testimony of
the prosecutrix.43 It is error merely to tell the jury that posi-
tive testimony is entitled to more weight than negative testi-
mony.44 There was error in a charge that "the undisputed
Missouri. Biskup v. Hoffman, 220 40 Skow v. Locks (Neb), 91 NW
MoApp 542, 287 SW 865. 204.
North Carolina. But in State v. 4 ' Vainer's Exrs. v. White, 149 Va
Strickland, 192 NC 253, 134 SE 850, 177, 140 SE 128.
an instruction was held without er- 42 State v. Connelly (NJ), 136 A
ror though it told the jury to con- 603 (where the court told the jury
vict the defendant if they believed to convict if they believed the wit-
his testimony, it appearing that the nesses for the prosecution truthful) ;
evidence was susceptible to no other Corrigan v. Funk, 109 AppDiv 846,
interpretation. 96 NYS 910.
35 Ray v. Patterson, 170 NC 226, 43 Deifenbaugh v. State, 32 Ariz
87 SE 212. 212, 257 P 27.
36 State v. Walser, 318 Mo 833, 44 Zbinden v. DeMoulin Bros. &
I SW2d 147. Co., 245 IllApp 248; State v. Davies,
"Walter v. State (Ind), 195 NE 101 OhSt 487, 129 NE 590; Cleve-
268 *and» c*» C- & st- L- R* Co- v- Riciier-
** Gehrig v. Chicago & A. R. Co., son, 19 OhCirCt 385, 10 OhCirDec
201 IllApp 287. 326; Cincinnati Trac. Co. v. Harri-
39Devine v. Brunswick-Balke- son, 24 OhCirCt (N. S.) 1, 34 OhCir
Collender Co., 270 111 504, 110 NE Dec 435.
780, AnnCas 1917B, 887.
§27 INSTRUCTIONS — RULES GOVERNING 82
evidence shows that she [the plaintiff] had a fall from the
train when wrecked" and that "there was evidence to show
some slight physical bruises which, I think, were not denied,"
when these points were, in fact, controverted.43 The rule was
violated by an instruction that plaintiff offered evidence "which
supported his contention" and that defendant offered evidence
"which he says supports his contention."46 It is improper to
charge that a claim of alibi not made in good faith, and an
unsuccessful attempt to prove it, should be considered by the
jury.47 It has been held error for the court to tell the jury
that they may consider matters of common and general knowl-
edge in addition to the evidence introduced and the instructions
of the court.48
Whether there is any evidence tending to prove material alle-
gations of the complaint is a question of law for the court, but
in passing on propriety of a motion for directed verdict neither
trial court nor appellate court can properly consider contradic-
tory evidence.49 The power of a trial court to order a judgment
non obstante veredicto is subject to the same rules as the power
to grant a nonsuit or to direct a verdict. In considering such
motion the trial court may not weigh all the evidence of both
sides or judge credibility of the witnesses as it may do on a
motion for new trial, but must accept the evidence tending to
support the verdict as true, unless on its face it should be in-
herently incredible.50
But where the evidence is not in conflict, the court may say
that it substantially supports the complaint.51 Where there is,
in fact, an absence of proof, the court may instruct that the
issue is not sustained by the evidence.52 Nor is it a charge on
the weight of the evidence where the court states what the
law is upon certain facts submitted for consideration of the
45 Florida Cent. & P. R. Co. v. Pulley Co. v. Scholfield, 71 Conn 1,
Lucas, 110 Ga 121, 35 SE 283. 40 A 1046.
46 Neal v. Yates, 180 NC 266, 104 Texas. Hegman v. Roberts (Tex-
SE 537. CivApp), 201 SW 268.
47 State v. Blair (WVa), 177 SE 52 Alabama. But see Wheat v.
307. Union Springs Guano Co., 195 Ala
4« Phoenix Ref . Co. v. Tips (Tex- 180, 70 S 631.
CivApp), 66 SW2d 396. Missouri. Alexander v. Harrison,
49 Evans v. Paul F. Beich Co., 38 Mo 258, 90 AmDec 431.
337 IllApp 98, 85 NE2d 202. Ohio. American Chem. Co. v.
50 In re Sargavak's Estate, 95 Smith, 8 OhApp 361, 30 OhCtApp
CalApp2d 73, 212 P2d 541. 203.
8 * Arkansas. See also Whitting- Virginia. Norfolk Southern B.
ton v. Hooks, 154 Ark 423, 242 SW Co. v. Norfolk Truckers Exch., 118
817. Va 650, 88 SE 318.
Connecticut. Scholfield Gear &
83 PROVINCE OP COURT AND JURY § 28
jury.83 So, the rule Is not violated by a charge that fraud must
be established by clear proof.54 It is held not a charge on the
weight of evidence to instruct that testimony of an accomplice
must be corroborated by more than mere proof that an offense
has been committed.55 An instruction is also held not on the
weight of evidence which told the jury that if they found
accused guilty of some offense but had a reasonable doubt as
to whether it was murder or manslaughter they would apply
the doubt in favor of the accused.56
It is held under the Oregon law that the court should in-
struct that if weaker and less satisfactory evidence is offered
when it appears that stronger and more satisfactory evidence is
within the power of the party, the evidence offered should be
viewed with distrust.57 The prohibition in the Delaware Con-
stitution against the court's comment or charge on the facts
means some expression by the court directly or indirectly con-
veying to the jury the court's estimation of the truth, falsity,
or weight of some of the testimony in the case.58 A charge
to disregard incompetent testimony is not a charge on the
facts.59
Where a material allegation of the complaint was that smelter
smoke had injured crops, which the defendant's answer denied,
but the defendant offered no evidence to support the denial, the
court properly told the jury that the defendant admitted the
fact.60
§ 28. Questions of fact and weight of evidence in criminal cases.
In criminal cases the jury are the sole judges of questions of
fact and the weight of the evidence.
The rule in criminal cases is substantially the same as the rule
53 Arkansas. Bocquin v. Theurer, ss Forson v. State, 90 TexGr 271,
133 Ark 448, 202 SW 845. 234 SW 913.
Florida. Stone v. State, 71 Fla 56 Littleton v. State, 91 TexGr
514, 71 S 634. 205, 239 SW 202.
Illinois. Pierce v. Chicago City 57 Stamm v. Wood, 86 Or 174,
R. Co., 202 IllApp 69. 168 P 69. But see Bank of Eman-
New York. Gangi v. Fradus, 227 uel v. Smith, 32 GaApp 606, 124 SE
NY 452, 125 NE 677. 114.
South Carolina. Loveland v. Col- 5S State v. Carey (Del), 178 A
lins, 109 SC 294, 96 SE 124. 877.
Texas. Paire v. Goff (TexCiv- s9 Hocking Valley R. Co. v. Hel-
App), 202 SW 813; Etter v. Stampp ber, 91 OhSt 231, 110 NE 481;
& Eichelberger (TexCiv App), 204 Logan v. Cleveland R. Co., 107 OhSt
SW 143; Hines v. Jones (TexCiv- 211, 140 NE 652; True v. Cudd, 106
App), 225 SW 412. SC 478, 91 SE 856.
54 state Security & Realty Co. v. 60 United Verde Copper Co. v.
Badger, 200 Mich 104, 166 NW 950. Jordan, 14 F2d 299, affg. 9 F2d 144.
|28
INSTRUCTIONS — RULES GOVERNING
84
in civil cases regarding questions of fact, that is, the jury alone
decide questions of fact and the weight of the evidence.61
The matter is for the jury where there is any evidence, how-
ever slight, which tends to establish any material fact involved
on the trial of a crime,62 and the case is the same where there
61 Federal. Hoke v. United
States, 227 US 308, 57 LEd 523, 33
SupCt 281, 43 LRA (N. S.) 906,
AnnCas 1913E, 905; Price v. United
States, 276 F 628; Rosenthal v.
United States, 45 F2d 1000, 78 ALR
1415.
Alabama. Arden v. State, 6 Ala-
App 64, 60 S 538; Cunningham v.
State, 14 AlaApp 1, 69 S 982; Wade
v. State, 14 AlaApp 130, 72 S 269.
The jury determines the weight of
the evidence of an accomplice. Hand-
ley v. State, 214 Ala 172, 106 S 692.
The province of the jury is in-
vaded by an instruction that if the
jury believes the evidence, it cannot
find defendant guilty of first degree
murder. James v. State, 14 AlaApp
652, 72 S 299.
California. People v. Dole, 122
Cal 486, 55 P 581, 68 AmSt 50.
Delaware. State v. Dougherty, 4
Boyce (27 Del) 163, 86 A 736.
Georgia. Kelloy v. State, 151 Ga
551, 107 SE 488; Mulligan v. State,
18 GaApp 464, 89 SE 541; Ponder
v. State, 18 GaApp 703, 90 SE 365;
Latty v. State, 19 GaApp 621, 91 SE
942.
Idaho. State v. Jones, 28 Idaho
428, 154 P 378.
Indiana. Newport v. State, 140
Ind 299, 39 NE 926.
Jury may draw its own con-
clusions from the evidence, though
such conclusions may differ from
the theories of accused or the state.
Brunaugh v. State, 173 Ind 483, 90
NE 1019.
Kansas. State v. Gaunt, 98 Kan
186, 157 P 447.
Maryland. Deibert v. State, 150
Md 687, 133 A 847.
Michigan. People v. Abernathy,
253 Mich 583, 235 NW 261.
Mississippi. Miller v. State (Miss),
35, S 690.
Missouri. State v. Williams, 191
Mo 205, 90 SW 448; State v. McGee,
336 Mo 1082, 83 SW2d 98.
In State v. Summers (MoApp),
281 SW 123, it was held error for
the court to tell the jury that they
"will" take certain enumerated
things into consideration, instead of
informing them that they "may"
take such things into consideration.
Ohio. Berry v. State, 31 OhSt
219, 27 AmRep 506; Burns v. State,
75 OhSt 407, 79 NE 929; State v.
Robinson, 83 OhSt 136, 93 NE 623,
21 AnnCas 1255; Scaccuto v. State,
118 OhSt 397, 161 NE 211.
Instruction is improper which tells
jury "as a matter of law, that you
are to be liberal with the state as
well as the defense." State v. Nor-
man, 103 OhSt 541, 134 NE 474.
Oklahoma. Blunt v. State, 3
OklCr 449, 106 P 806.
South Carolina. In a homicide
prosecution, the following instruc-
tion was not ground for reversal:
"In other words, after all the dis-
sertations, all that is meant is that
the jury must be satisfied in their
minds by the testimony of the ex-
istence or nonexistence of the facts
under consideration." State v.
Cooper, 118 SC 300, 110 SE 152.
South Dakota. State v. Coleman,
17 SD 594, 98 NW 175.
Utah. State v. Webb, 18 Utah
441, 56 P 159.
Wyoming. Curran v. State, 12
Wyo 553, 76 P 577.
62 Federal. United States v.
Rowe, 56 F2d 747.
Alabama. Morris v. State (Ala),
39 S 608.
California. People v. Miller, 139
CalApp 644, 34 P2d 788.
Illinois. People v. Schneider, 360
111 43, 195 NE 430.
Kentucky. Bently v. Common-
wealth, 242 Ky 322, 46 SW2d 103;
Lee v. Commonwealth, 255 Ky 814,
85
PROVINCE OP COURT AND JURY
§28
is conflicting evidence on controverted issues.63 If the circum-
stances of a case reasonably justify an inference of the accused's
guilt, the jury are not required to believe the evidence of the
defendant even though if they did believe it the defendant would
be entitled to an acquittal.64 It is for the jury to say whether
the evidence before them is sufficient to establish such matters
and contentions as the defense of insanity65 (but the question
75 SW2d 528; Bond v. Common-
wealth, 257 Ky 366, 78 SW2d 1;
Ford v. Commonwealth, 259 Ky 492,
82 SW2d 785.
Oklahoma. Wisdom v. State, 56
OklCr 140, 36 P2d 514.
Pennsylvania. Commonwealth v.
Hyman, 117 PaSuperCt 585, 178 A
510.
Wisconsin. Newbern v. State
(Wis), 260 NW 236.
63 Alabama. Walker v. State, 117
Ala 42, 23 S 149; Hampton v. State,
1 AlaApp 156, 55 S 1018.
California. People v. Haydon, 18
CalApp 543, 123 P 1102, 1114.
Delaware. Where testimony is
conflicting, it is the duty of the
jury to reconcile it if possible; other-
wise to reject that which they deem
unworthy of credit, having regard to
the character, intelligence, and bias
of the witnesses and their oppor-
tunities of knowledge. State v. Lee,
1 Boyce (24 Del) 18, 74 A 4.
Illinois. People v. Martishuis,
361 111 178, 197 NE 531.
Michigan. People v. Stewart, 163
Mich 1, 127 NW 816.
Missouri. State v. Devorss, 221
Mo 469, 120 SW 75; State v. Davis,
337 Mo 411, 84 SW2d 930.
New York. People v. Ferrara,
199 NY 414, 92 NE 1054.
Oklahoma. Bourns v. State, 57
OklCr 377, 48 P2d 353.
Rhode Island. State v. Buchanan,
32 RI 490, 79 A 1114.
Texas. Owens v. State, 128 TexCr
199, 80 SW2d 316; Womack v. State,
129 TexCr 175, 84 SW2d 1011.
Virginia. Vlastaris v. Common-
wealth, 164 Va 647, 178 SE 775.
64 People v. Bolton, 215 Cal 12, 8
P2d 116.
es Alabama. Boyle v. State, 229
Ala 212, 154 S 575; Douglass v.
State, 21 AlaApp 289, 107 S 791.
California. People v. Hubert, 119
Cal 216, 51 P 329, 63 AmSt 72;
People v. Mellody, 87 CalApp 295,
261 P 1114.
Florida. Chesser v. State, 92 Fla
589, 109 S 599.
Kentucky. Prather v. Common-
wealth, 215 Ky 714, 287 SW 559;
Miller v. Commonwealth, 236 Ky
448, 33 SW2d 590.
Missouri. State v. Holme, 54 Mo
153; State v. Cockriel, 314 Mo 699,
285 SW 440.
Montana. State v. Howard, 30
Mont 518, 77 P 50.
Nebraska. Larson v. State, 92
Neb 24, 137 NW 894.
Nevada. The defense of insanity
becomes a matter of evidence, the
admissibility of which must first be
passed on by the court to determine
the form of insanity, and it then
becomes a question of law for the
court whether the form of insanity
attempted to be proved is a legal
defense, and if recognized the de-
fense must be submitted to the
jury by proper instructions. State
v. Casey, 34 Nev 154, 117 P 5.
Ohio. State v. Hauser, 101 OhSt
404, 131 NE 66.
Oklahoma. Adair v. State, 6
OklCr 284, 118 P 416, 44 LRA (N. S.)
119; Litchfield v. State, 8 OklCr
164, 126 P 707, 45 LRA (N. S.) 153;
Baker v. State, 9 OklCr 47, 130 P
524; Harris v. State, 53 OklCr 107,
7 P2d 914.
Texas. Kinney v. State, 116 Tex
Cr 636, 33 SW2d 463; McCann v.
State, 129 TexCr 105, 83 SW2d 967.
Utah. State v. Green, 78 Utah
580, 6- P2d 177.
.28
INSTRUCTIONS — RULES GOVERNING
86
of mental competency should not be presented to the jury in
the absence of testimony tending to show that accused's mental
condition influenced him at the time of commission of the
crime) ;66 a criminal intent;67 guilty knowledge;68 the venire;69
the corpus delecti;70 an alibi;71 provocation justifying assault;72
the identification of the defendant;73 the result of experi-
Washington. State v. Dulacas,
147 Wash 540, 266 P 185.
Wisconsin. Oborn v. State, 143
Wis 249, 126 NW 737, 31 LRA
(N. S.) 966; Tendrup v. State, 193
Wis 482, 214 NW 356.
6® State v. Brewer, 218 la 1287,
254 NW 834.
67 McNair v. State, 61 Fla 35, 55
S 401.
68 Bonker v. People, 37 Mich 4.
69 Federal. Price v. United States,
68 F2d 133 (question as to where
income tax returns and taxes were
due).
Alabama. Williams v. State, 5
AlaApp 112, 59 S 528; Smith v.
State, 21 AlaApp 497, 109 S 530.
Arkansas. Spinks v. State, 104
Ark 641, 149 SW 54; Green v. State,
190 Ark 583, 79 SW2d 1006.
California. In re O'Connor, 80
CalApp 647, 252 P 730.
Idaho. State v. Roland, 11 Idaho
490, 83 P 337.
Iowa. State v. Spayde, 110 la
726, 80 NW 1058; State v. Caskey,
200 la 1397, 206 NW 280.
Kentucky. Eisner v. Common-
wealth, 220 Ky 77, 294 SW 803.
Louisiana. State v. Kline, 109 La
603, 33 S 618.
Missouri. State v. Burns, 48 Mo
438.
New Jersey. State v. Rose (NJ),
136 A 295.
Ohio. State v. Dickerson, 77 OhSt
34, 82 NE 969, 13 LRA (N. S.) 341,
122 AmSt 479, 11 AnnCas 1181.
Pennsylvania. Commonwealth v.
Mull, 316 Pa 424, 175 A 418.
Texas. Teel v. State (TexCr),
70 SW2d 716.
70 People v. Trine, 164 Mich 1,
129 NW 3; State v. Maranda, 94
OhSt 364, 114 NE 1038.
7 * Alabama* Chiles v. State, 26
AlaApp 358, 159 S 700.
California. People v. Arnold, 199
Cal 471, 250 P 168; People v. Mad-
sen, 93 CalApp 711, 270 P 237;
People v. Parker, 135 CalApp 761,
27 P2d 921; People v. Clark, 2 Cal-
App2d 743, 38 P2d 796.
Georgia. Stiles v. State, 113 Ga
700, 39 SE 295; Tipton v. State,
119 Ga 304, 46 SE 436.
Illinois. People v. Gentile, 326
111 540, 158 NE 222; People v. Man-
fucci, 359 111 69, 194 NE 248.
Iowa. State v. Sampson, 220 la
142, 261 NW 769.
Kentucky. Gray v. Common-
wealth, 252 Ky 830, 68 SW2d 430.
Mississippi. Johnson v. State, 171
Miss 321, 157 S 896.
North Carolina. State v. Jeffreys,
192 NC 318, 135 SE 32.
Ohio. Burns v. State, 75 OhSt
407, 79 NE 929.
Pennsylvania. Commonwealth v.
Szachewicz, 303 Pa 410, 154 A 483.
Wisconsin. Cobb v. State, 191 Wis
652, 211 NW 785.
72 Amerson v. State, 18 GaApp
176, 88 SE 998.
73 Federal. Kaplan v. United
States, 18 F2d 939.
California. People v. Schoedde,
126 Cal 373, 58 P 859; People v.
Hrjak, 85 CalApp 301, 259 P 353.
Colorado. Barr v. People, 30 Colo
522, 71 P 392.
Florida. Pennington v. State, 91
Fla 446, 107 S 331.
Georgia. Gray v. State, 6 GaApp
428, 65 SE 191.
Illinois. People v. Deal (111), 197
NE 772.
Iowa. State v. Kelly, 202 la 729,
210 NW 903.
Kentucky. Tatum v. Common-
wealth, 22 KyL 927, 59 SW 32.
Missouri. State v. Friedman, 313
Mo 88, 2SO SW 1023.
87
PROVINCE OF COURT AND JURY
§28
ments;74 the impeachment of a witness;73 former acquittal;76
former jeopardy77 (but if the facts on which a plea of former
jeopardy is based are not disputed, it becomes a question for
the court to determine78) ; the force and effect of confessions;79
New York. People v. Jackson,
182 NY 66, 74 NE 565.
Ohio. Mead v. State, 26 OhSt 505.
Vermont. State v. Orlandi, 106
Vt 165, 170 A 908.
74 People v. Wagner, 29 CalApp
363, 155 P 649.
75 Federal. Bamos v. United
States, 12 F2d 761; Schneider v.
United States, 57 F2d 454.
Alabama. James v. State, 14 Ala
App 652, 72 S 299.
California. People v. Vejar, 93
CalApp 259, 269 P 671.
Georgia. Huff v. State, 104 Ga
521, 30 SE 808.
Illinois. People v, Lehner, 326 111
216, 157 NE 211.
Indiana. Fritch v. State, 199 Ind
89, 155 NE 257; Hammond v. State,
200 Ind 343, 163 NE 262.
Kentucky. McPerkin v. Common-
wealth, 236 Ky 528, 33 SW2d 622;
Sumner v. Commonwealth, 256 Ky
139, 75 SW2d 790.
Michigan. People v. Hare, 57
Mich 505, 24 NW 843.
Missouri. State v. Sharp, 183 Mo
715, 82 SW 134; State v. Gentry,
329 Mo 282, 44 SW2d 27; State v.
Berezuk, 331 Mo 626, 55 SW2d 949;
State v. Buckner, 335 Mo 229, 72
SW2d 73.
New York. People v. Tait, 234
AppDiv 433, 255 NYS 455.
Ohio. Sharp v. State, 16 OhSt
218.
Pennsylvania. Commonwealth v.
Alessio, 313 Pa 537, 169 A 764.
Texas. Moore v. State, 103 TexCr
566, 281 SW 1080; Black v. State,
109 TexCr 2, 2 SW2d 459.
Virginia. Hendricks v. Common-
wealth, 163 Va 1102, 178 SE 8.
Washington. State v. Prouse, 141
Wash 358, 251 P 582.
76 Indiana. Dunn v. State, 70 Ind
47.
Louisiana. State v. Foley, 114 La
412, 38 S 402.
Missouri. State v. Tatman, 228
Mo 470, 128 SW 736.
New Jersey. State v. Rosa, 72
NJL 462, 62 A 695.
77 Alabama. Gladden v. State, 24
AlaApp 188, 132 S 435.
California. In re Perry, 94 Cal
App 235, 270 P 996.
Missouri. See State v. Ward
(Mo), 85 SW2d 1.
North Carolina. State v. Clem-
mons, 207 NC 276, 176 SE 760.
North Dakota. State v. Panchuk,
53 ND 669, 207 NW 991.
Ohio. Beamer v. State, 10 OhCir-
Ct (N. S.) 131, 19 OhCirDec 578.
Texas. Woodward v. State, 42
TexCr 188, 58 SW 135.
Wisconsin. But see Lanphere v.
State, 114 Wis 193, 89 NW 128.
78 Iowa. State v. Smith (la), 256
NW 651.
Oklahoma. State v. Brooks, 38
OklCr 302, 260 P 785.
Pennsylvania. Commonwealth v.
Bloom, 8S PaSup'erCt 93.
79 Federal. Colletti v. United
States, 53 F2d 1017.
Alabama. Fowler v. State, 170
Ala 65, 54 S 115.
Florida. Nickels v. State, 90 Fla
659, 106 S 479.
Illinois. People v. Gukouski, 250
111 231, 95 NE 153, AnnCas 1912B,
297; People v. Guido, 321 111 397, 152
NE 149.
Massachusetts. Commonwealth v,
Zelenski, 287 Mass 125, 191 NE 355.
Nebraska. Becker v. State, 91
Neb 352, 136 NW 17.
New Jersey. State v. Compo, 108
NJL 499, 158 A 541, 85 ALR 866;
State v. Locicero, 115 NJL 208, 178
A 778, affg. 12 'NJMisc 837, 175 A
904.
Ohio. Burdge v. State, 53 OhSt
512, 42 NE 594; State v. Knapp, 70
OhSt 380, 71 NE 705, 1 AnnCas
819; State v. Strong, 12 OhDec 701.
§28
INSTRUCTIONS — RULES GOVERNING
88
the truth or falsity of admissions by the accused;80 the com-
mission of the offense within the statute of limitations;81 and
whether the defendant concealed the alleged crime and thus
tolled the running of the statute.82
It is likewise a question for the jury whether a witness is
an accomplice,83 unless the facts as to the participation of the
witness in the crime charged are clear and undisputed;84 whether
such a witness has been corroborated,85 but if the evidence
whether a witness was an accomplice is undisputed, the court
Texas. Wright v. State, 117 Tex
Cr 603, 36 SW2d 747.
West Virginia. State v. Richards,
101 WVa 136, 132 SE 375.
80 California. People v. Buckley,
143 Cal 375, 77 P 169; People v.
Holmes, 130 CalApp 507, 20 P2d 67.
Colorado. Ausmus v. People, 47
Colo 167, 107 P 204, 19 AnnCas
491.
Ohio. Hoover v. State, 91 OhSt
41, 109 NE 626; Neiswender v.
State, 28 OhCtApp 545, 30 OhCirDec
417.
81 State v. Newton, 39 Wash 491,
81 P 1002. But see Gambling v.
State, 22 AlaApp 442, 116 S 507.
82 State v. Wingett, 136 Kan 436,
16 P2d 486; State v. Taylor, 140
Kan 663, 38 P2d 680.
83 Federal. Hays v. United States,
231 P 106.
California. People v. Compton, 123
Cal 403, 56 P 44; People v. South-
well, 28 CalApp 430, 152 P 939.
Georgia. Hargrove v. State, 125
Ga 270, 54 SE 164.
Illinois. People v. Smith, 342 111
600, 174 NE 828.
Jury is to pass upon and de-
termine the credibility of an ac-
complice. People v. Durand, 321 111
526, 152 NE 569.
Kansas. State v. Reidie, 142 Kan
290, 46 P2d 601.
Kentucky. Smith v. Common-
wealth, 148 Ky 60, 146 SW 4; Fry-
man v. Commonwealth, 225 Ky 808,
10 SW2d 302; Fox v. Common-
wealth, 248 Ky 466, 58 SW2d 608
(saying, however, that where the
facts are undisputed it is for the
court to say whether the witness
was an accomplice).
Montana. State v. Smith, 75
Mont 22, 241 P 522.
New York. People v. Dunn, 243
NY 381, 153 NE 843; People v.
Clougher, 246 NY 106, 158 NE 38;
People v. Jackerson, 247 NY 36,
159 NE 715; People v. Warder, 231
AppDiv 215, 247 NYS 60.
North Dakota. State v. Moeller,
24 ND 165, 138 NW 981.
Ohio. Curtis v. State, 113 OhSt
187, 148 NE 834.
Oklahoma. Wells v. State, 34
OklCr 179, 245 P 1007; Vardeman v.
State, 54 OklCr 329, 20 P2d 194;
Yeargain v. State, 57 OklCr 136,
45 P2d 1113.
If the facts are not controverted,
it is a question of law for the
court to decide. Evinger v. State,
57 OklCr 63, 45 P2d 552.
Texas. Clay v. State, 40 TexCr
556, 51 SW 212; Minor v. State, 108
TexCr 1, 299 SW 422; Craven v.
State, 119 TexCr 606, 45 SW2d 219.
Where the evidence did not in
any way connect a witness with
the crime charged, he was not an
accomplice, so as to require the
submission of the question whether
he was an accomplice. Tate v. State,
68 TexCr 561, 151 SW 825.
84 Commonwealth v. Brown, 116
PaSuperCt 1, 175 A 748; Chapman
v. State, 127 TexCr 302, 76 SW2d
138.
85 Alabama. Arrington v. State,
24 AlaApp 233, 133 S 592; Smith v.
State, 230 Ala 413, 161 S 538;
Crumbley v. State, 26 AlaApp 24,
152 S 55; Dodd v. State, 26 AlaApp
367, 160 S 267.
Arizona. Faltin v. State, 17 Ariz
278, 151 P 952.
89
PROVINCE OF COURT AND JURY
§28
determines the status of the witness as a matter of law;86 the
weight that should be given to the testimony of experts;87
whether evidence favorable to accused raises a reasonable doubt
of his guilt;88 and whether reasonable force has been used in
retaking property wrongfully taken.89
The weight to be given to statements which form a part of
the res gestae is for the jury.90 Where there was testimony in
a homicide case on the question of identity that the murderer
was pale or white, and photographs of the defendant in evidence
showed him tanned, the weight of the evidence was for the
jury.9' It is not proper for the court to go to the extent of telling
the jury in a murder trial that it is a well-settled rule of law
that if there be two reasonable constructions which can be given
to facts proved, one favorable and the other unfavorable to the
accused, it is the duty of the jury to give that which is favorable
rather than unfavorable.92 The court invades the province of
the jury by telling them that mere evidence of opportunity for
sexual intercourse is not sufficient to establish adultery;93 that
the jury could consider the superior strength of the defendant
California. People v. Viets, 79
CalApp 576, 250 P 588.
Georgia. Bowden v. State, 36
GaApp 751, 138 SE 246.
Iowa. State v. Dorsey, 154 la
298, 134 NW 946.
Kentucky. Goodin v. Common-
wealth, 212 Ky 561, 279 SW 984;
Sullivan v. Commonwealth, 255 Ky
666, 75 SW2d 339; Walker v. Com-
monwealth, 257 Ky 613, 78 SW2d
754.
New York. People v. Barry, 196
NY 507, 89 NE 1107; People v.
Kathan, 136 AppDiv 303, 120' NYS
1096.
Ohio. Noland v. State, 19 Oh
131; Sandoffsky v. State, 29 OhApp
419, 163 NE 634.
Oklahoma. McGill v. State, 6
OklCr 512, 120 P 297.
Pennsylvania. Commonwealth v.
Bruno, 316 Pa 394. 175 A 518.
South Dakota. State v. "Walsh, 25
SD 30, 125 NW 295.
Tennessee. Patmore v. State, 152
Tenn 281, 277 SW 892.
86 People v. McDermott, 75 Cal
App 718, 243 P 485.
87 Montana. State v. Mah Sam
King, 89 Mont 178, 295 P 1014.
New York. People v. Soper, 243
NY 320, 153 NE 433.
North Carolina. State v. Combs,
200 NC 671, 158 SE 252.
Ohio. Vey v. State, 35 OhApp
324, 172 NE 434, 31 OLE 135; State
v. Del Bello, 8 OhDec 455; State v.
Rieber, 51 OhBull 208.
Pennsylvania. Commonwealth v.
Cavalier, 284 Pa 311, 131 A 229.
Texas. Kellum v. State, 102 Tex
Cr 537, 278 SW 434.
88 People v. Williams, 240 111
633, 88 NE 1053; State v. Robin-
son, 83 OhSt 136, 93 NE 623, 21
AnnCas 1255.
89 Commonwealth v. Donahue, 148
Mass 529, 20 NE 171, 2 LRA 623,
12 AmSt 591.
90 Rouse v. State, 135 Ga 227, 69
SE 180; State v. Lasecki, 90 OhSt
10, 106 NE 660, LRA 1915E, 202,
AnnCas 1916C, 1182.
9 ' People v. Herbert, 361 111 64,
196 NE 821.
92 Mathis v. State, 15 AlaApp 245,
73 S 122. See also Deshazo v. State,
120 Ark 494, 179 SW 1012.
93 Brown v. State, 22 AlaApp
290, 115 S 68. -
INSTRUCTIONS — RULES GOVERNING
90
in a rape case, and the suddenness of his attack;94 that shooting
of officer shows anarchy and chaos.95
§ 29. Comments and expressions of opinion on the evidence —
In general.
In most jurisdictions, the exclusive province of the jury as
to the facts of the case is infringed by any comments on the
facts or expression of opinion by the court as to the weight and
effect to be given to the evidence.
Because of the likelihood of unduly influencing the jury in
its deliberations, the trial judge in a majority of states cannot
comment on the facts or express his opinion on the weight and
effect of the evidence.96 Of course, this rule applies only if the
judge determines that the issue is for the jury and not entitled
to a peremptory instruction. It has been said that "a court in
charging a jury should so evenly balance the scales of justice
as not to indicate by a wink, look, shake of the head, or peculiar
emphasis, as to his notions as to which way the verdict should
94 People v. Celmars, 332 111 113,
163 NE 421.
95 Freeman v. State, 119 OhSt
250, 163 NE 202.
96 Arizona. Griswold v. Horne,
19 Ariz 56, 165 P 318, LRA 1918A,
862.
California. McNeil v. Barney, 51
Gal 603; Davis v. Pezel, 131 CalApp
46, 20 P2d 982.
Florida. Supreme Lodge K. P. v.
Lipscomb, 50 Fla 406, 39 S 637.
Georgia. Owen v. Palmour, 111
Ga 885, 36 SE 969; Worsham v.
Ligon, 144 Ga 707, 87 SE 1025;
Bowen v. Smith-Hall Groc. Co., 146
Ga 157, 91 SE 32; Frost v. Smith,
148 Ga 840, 98 SE 471; Atlantic
Coast Line R. Co. v. Mead, 18 GaApp
621t 90 SE 87 (intimation that lan-
guage was insulting); Be Ment v.
Rogers, 24 GaApp 438, 101 SE 197.
A statement in an instruction that
there was a great deal of feeling
on the part of the parties was an
expression of an opinion on the facts
of the case. Skellie v. Skellie, 152
Ga 707, 111 SE 22.
In a case where the jury an-
nounced an inability to agree, the
court's remark that it was expensive
to the county to try the case and
that it was necessary that they make
a verdict if they could did not in-
timate an opinion on the facts in
favor of plaintiff or otherwise preju-
dice defendant. Atlanta & W. P. R.
Co. v. Reese, 28 GaApp 275, 110 SE
750.
Illinois. Rice & Bullen Malting
Co. v. International Bank, 86 IllApp
136, affd. in 185 111 422, 56 NE 1062.
Indiana. Reynolds v. Cox, 11 Ind
262.
Maryland. Western Maryland R.
Co. v. Shivers, 101 Md 391, 61 A
618.
Massachusetts. Davis v. Jenney,
1 Mete. (42 Mass) 221.
Michigan. Walts v. Walts, 127
Mich 607, 86 NW 1030; McCain v.
Smith, 172 Mich 1, 137 NW 616.
Missouri. Jones v. St. Louis-San
Francisco R. Co., 287 Mo 64, 228
SW 780; Webb v. Baldwin, 165
MoApp 240, 147 SW 849; Wagner
v. Binder (Mo), 187 SW 1128; Mark-
land v. Clover Leaf Casualty Co.
(MoApp), 209 SW 602; Hearon v.
Himmelberger - Harrison Lbr. Co.
(MoApp), 224 SW 67.
This rule was violated by an in-
struction that evidence by deposition
should be given the same weight and
91
PKOVINCE OF COURT AND JURY
§29
go."97 While the evidence may be reviewed or summarized, the
court should refrain from commenting upon it, and there is such
an objectionable comment where the court says there is an entire
absence of evidence on an issue of the case, and there is evidence
sufficient to raise an inference on the issue.98
The rule is not affected by the fact that the expression may
have been inadvertent or unintentional.99 It has been held to be
a comment on the weight of the evidence for the court to cross-
examine a witness in the presence of the jury.1 The rule against
comment and expression of opinion does not, as a general rule,
depend on whether there is a conflict in the evidence.2
When the evidence is parol, any opinion as to its weight,
effect and sufficiency by the court is an invasion of the province
of the jury.3 Thus the court would overstep the line between
law and fact by instructing that the jury cannot return a verdict
upon the testimony of one witness alone, as it is the jury's right
to weigh such testimony in connection with all the other evidence
credit as if the witnesses were per-
sonally present. Anderson v. White,
210 MoApp 275, 235 SW 834.
Montana. Hardesty v. Largey
Lbr. Co., 34 Mont 151, 86 P 29;
Hawley v. Richardson, 60 Mont 118,
198 P 450.
Nebraska. Kleutsch v. Security
Mut. Life Ins. Co., 72 Neb 75, 100
NW 139.
New York. Broderick v. Brook-
lyn, Q. C. & S. R. Co., 186 AppDiv
546, 174 NYS 571.
North Carolina. Phillips v. Giles,
175 NC 409, 95 SE 772; Sloan v.
Cooper Guano Co., 176 NC 690, 96
SE 954; Fox v. Texas Co., 180 NC
543, 105 SE 437.
Ohio. Hastings v. Allen, 14 Oh
58, 45 AmDec 522; Weybright v.
Fleming, 40 OhSt 52; Metropolitan
Life Ins. Co. v. Howie, 68 OhSt 614,
68 NE 4; Fouts v. State, 113 OhSt
450, 149 NE 551; Zimmerman v.
State, 42 OhApp 407, 182 NE 354, 12
OLA 140; Rapp v. Becker, 4 CirCt
(N. S.) 139, 16 CirDec 321.
Oklahoma. Bilby v. Owen, 74 Okl
158, 181 P 724; Snouffer v. First
Nat. Bank, 86 Okl 190, 207 P 452.
South Carolina. Sandel v. State,
115 SC 168, 104 SE 567, 13 ALR
1268 (instruction as to weight of
admissions of state officers) ; Powers
v. Rawls, 119 SC 134, 112 SE 78.
Texas. Smith v. Bryan (TexCiv
App), 204 SW 359.
Virginia. Whitelaw's Exr. v.
Whitelaw, 83 Va 40, 1 SE 407.
West Virginia. Harxnan & Crock-
ett v. Maddy Bros., 57 WVa 66, 49
SW 1009.
97 Metropolitan Life Ins. Co. v.
Howie, 68 OhSt 614, 68 NE 4.
98 Alabama. Coghill v. Kennedy,
119 Ala 641, 24 S 459.
North Carolina. State v. Flem-
ing, 202 NC 512, 163 SE 453.
Ohio. Home Tel. Co. v. Meyers,
99 OhSt 338, 124 NE 210; Minnick
v. Cockley, 103 OhSt 675, 136 NE
59.
99 Starling v. Selma Cotton Mills,
171 NC 222, 88 SE 242.
1 Felker v. Gulf Coast Orchards
Co. (TexCivApp), 81 SW2d 1044.
2 The court invades the province
of the jury by telling them that if
they believe all the evidence in the
case their verdict should be for the
plaintiff. Dixon v. Hotel Tutwiler
Operating Co., 214 Ala 396, 108 S
26.
Whitelaw's Exr. v. Whitelaw, 83
Va 40, 1 SE 407.
3 Cook v. Gillespie, 259 Ky 281,
§29
INSTRUCTIONS — EULES GOVERNING
92
in the case,4 or by instructing that certain evidence is more
satisfactory and reliable than certain other evidence or that one
class of testimony is to be believed in preference to another
class,5 or that the evidence is insufficient to sustain the declara-
tion,6 or that the testimony is not "clear, cogent and convinc-
ing."7 Where the court in charging the jury stated the facts
as they were alleged in plaintiff's complaint but failed to include
an expression to the effect that "it is alleged," it was held that
the instruction was erroneous as it invaded the province of the
jury.8
An instruction is not open to objection as being on the weight
of the evidence where it charges the jury upon the legal effect
of admitted or uncontro verted facts,9 or merely recites the con-
tentions of the parties.10 Further, as the trial judge, in ruling
that evidence is admissible, in effect decides that it has a ten-
82 SW2d 347; Richmond & D. R.
Co. v. Noell, 86 Va 19, 9 SE 473.
4 Dawson v. Falls City Boat Club,
125 Mich 433, 84 NW 618.
5 Coulter v. B. F. Thompson Lbr.
Co., 142 F 706; Belt R. Co. v. Con-
frey, 111 IIlApp 473.
6 Winkler v. Chesapeake & 0. R.
Co., 12 WVa 699.
7 Ray v. Long, 132 NC 891, 44
SE 652.
That certain evidence might be
considered a "strong circumstance"
against a party is improper. Ed-
wards v. St. Louis & S. F. R. Co.,
166 MoApp 428, 149 SW 321.
8 Wilch v. Western Asphalt Pav-
ing Corp., 124 Neb 177, 245 NW 605.
9 Alabama. Newell Contr. Co. v.
Glenn, 214 AlaApp 282, 107 S 801;
Orr v. Read Phosphate Co., 215 Ala
562, 112 S 145.
Georgia. Peeples v. Rudulph, 153
Ga 17, 111 SE 548; May v. Sorrell,
153 Ga 47, 111 SE 810.
It does not amount to a comment
to charge that failure of plaintiff to
do correct thing in the face of im-
minent peril would not preclude re-
covery for injuries the result of
negligence of plaintiff. Gainesville
Midland R. Co. v. Vandiver, 144 Ga
852, 88 SE 193.
Indiana. Chicago, I. & L. R. Co.
v. Stierwalt, 87 IndApp 478, 153 NE
807.
Missouri. Slayback v. Gerkhardt,
1 MoApp 333; Cantrell v. Knight
(MoApp), 72 SW2d 196.
Washington. Thornton v. Eneroth,
180 Wash 250, 39 P2d 379, 48 P2d
1120.
10 Alabama. Johnson Bros. v.
Storrs-Schaefer Co., 25 AlaApp 78,
140 S 885,
Arkansas. Love v. Cowger, 130
Ark 445, 197 SW 853.
Georgia. Carswell v. Smith, 145
Ga 588, 89 SE 698; Ford v. Ford,
146 Ga 164, 91 SE 42; Brookman
v. Rennolds, 148 Ga 721, 98 SE
543; McArthur v. Ryals, 162 Ga
413, 134 SE 76; American Trust &
Banking Co. v. Harris, 18 GaApp
610, 89 SE 1095; Owens v. Fuller,
27 GaApp 368, 108 SE 312.
Indiana. Public Utilities Co. v.
Handorf, 185 Ind 254, 112 NE 775.
Maine. Benner v. Benner, 120 Me
468, 115 A 202.
Missouri. Hurlburt v. Bush, 284
Mo 397, 224 SW 323.
North Carolina. Bradley v. Camp
Mfg. Co., 177 NC 153, 98 SE 318.
Texas. Wiedner v. Katt (TexCiv
App), 279 SW 909.
An instruction that operation of
cotton gin was not a nuisance as
matter of law was not a comment
on weight of testimony. Oliver v.
Forney Cotton Oil & Ginning Co.
(TexCivApp), 226 SW 1094.
93 PROVINCE OF COURT AND JURY §29
dency to make out a case or defense, there can be no objection
to his saying so in his charge. ( r While the court may not instruct
as to what any evidential fact proves or does not prove, or the
weight to be given it, it is within his power to determine whether
there is any evidence tending to establish a fact in the case.12
He may likewise tell the jury of the relevancy of the evidence
to the issues but he may not give an opinion as to the facts
proved.13
So the trial judge has the right to tell the jury what the
claims of the respective parties are, and if, in doing so, he inci-
dentally refers to the testimony, his statement will not neces-
sarily amount to a charge on the weight of the evidence provided
he does not indicate to the jury that the evidence establishes or
tends to establish the claim of either party.14 The rule is not
violated where the instruction is not intended as a comment on
the facts, but merely as a statement of the issues. ' s The court
may, likewise, make reference to particular phases of the testi-
mony and apply principles of law thereto, r 6 or explain the various
matters of fact involved and differentiate between them.17 Nor
does the rule forbid the judge to tell the jury that there was no
evidence to sustain a particular fact. ' 8
Further, the court may, without violation of the rule, explain
to the jury the use of mortality and annuity tables by referring
to a particular age which, according to the evidence, is approxi-
mately the age of one of the parties.19 So the court does not
1 ( Campau v. Langley, 39 Mich Washington. Drumheller v. Ameri-
451, 33 AmRep 414. can Surety Co., 30 Wash 530, 71 P
i 2 Arkansas. Miller v. Ft. Smith 25.
Light & Trac. Co., 136 Ark 272, 206 ' s Commonwealth v. Kretezitis,
S^ 329. in PaSuperCt 5, 169 A 417; West-
California. Habner v. Pacific Elec. bury v. Simmons, 57 SC 467, 35 SE
R. Co., 78 CalApp 617, 248 P 741. 764
Indiana. Beckner v. Riverside & ' 6 California. People v. Calkins
Battle Ground Tpk. Co., 65 Ind 468. (CalApp), 47 P2d 544.
( , T T • -n * vr T> n Kansas. Haines v. Goodlander,
i« r Aey v-Jrr«r « «™ \ " ™ *** ™. &* * ^~
18 GaApp 434, 89 SE 629; New- North ^.^ y_
S°E J« *90 NC 506' 13° SE 30S <referenc*
bill 4dd. -n murder trial to state's contention
14 Missouri. Neal v. Caldwell, that wife of deceased saw defendant
326 Mo 1146, 34 SW2d 104; First strike deceased).
Nat. Bank v. Aquamsi Land Co. Pennsylvania. Commonwealth v.
(MoApp), 70 SW2d 90; Schrowang Qittleson, 88 PaSuper 190.
v. Von Hoffman Press (MoApp), «7jjopcraft v. Kittredge, 162
75 SW2d 649. Mass 1, 37 NE 768.
South Carolina. In re Brazman's i s Dime Sav. & Trust Co. v.
Will, 172 SC 188, 173 SE 623. Jacobson, 191 IllApp 275; Jensen
Texas. State v. Blair (TexCiv v. Schlenz, 89 Wash 268, 154 P 159.
App), 72 SW2d 927. l9 Georgia. Central of Georgia
§ 30 INSTRUCTIONS — RULES GOVERNING 94
comment on the evidence where he gives the reason for the
withdrawal of a cause of action by the plaintiff;20 or states
to the attorneys in the case the reasons for rulings on certain
objections;21 or overrules a motion for a nonsuit and tells the
jury that his action was a matter of law and not for the jury;22
or where he makes casual remarks in reference to the dates of
documents introduced in evidence, and, so far as indicated by
the evidence, the dates are correct.23 The rule is not infringed
by an instruction restricting the maximum recovery of the
plaintiff to the amount stated in the complaint.24 The court will
not ordinarily be held to have expressed an opinion where it
charges that issues must be sustained by clear and satisfactory
evidence.25
A party cannot complain that a court has used in the instruc-
tions the same language used by the party's attorney in argu-
ment.26
§ 30. Comments and expressions of opinion as to preponderance
of evidence.
The province of the jury is invaded by instructions which
express an opinion as to the preponderance of the evidence in a
particular case.
This rule is a particular application of the more general rule
that the judge cannot comment on the evidence. The particular
rule is violated when the judge in effect, by hint, emphasis, in-
correct instruction, or otherwise, expresses his view as to which
party's evidence preponderates. That this is an invasion of the
province of the jury is supported by the cases.27
R. Co. v. Duffy, 116 Ga S46, 42 SE 26 Bowen v. Worthington, 191 NC
510. 468, 132 SE 151.
Michigan. Fishleigh v. Detroit 27 Georgia. Peacock v. Anderson,
United By. Co., 205 Mich 145, 171 20 GaApp 540, 93 SE 171; Union
NW 549. Warehouse Co. v. Roper, 21 GaApp
South Carolina. But see Case v. 182, 94 SE 74.
Atlanta & C. A. L. R. Co., 107 SC Illinois. An instruction which
216, 92 SE 472. tells the jury upon what facts and
20Lownsdale v. Grays Harbor circumstances they shall determine
Boom Co., 36 Wash 198, 78 P 904. the preponderance of the evidence
21 Osborne v. Galusha, 143 Wash invades the province of the jury.
127, 254 P 1086. Witt v. Gallemore, 163 IllApp 649.
22 Moseley v. Carolina, C. & 0. R. Indiana. Pennsylvania Co. v.
Co., 106 SC 368, 91 SE 380. Hunsley, 23 IndApp 37, 54 NE 1071.
23 McGhee v. Wells, 57 SG 280, New York. Suse v. Metropolitan
35 SE 529, 76 AmSt 567. Street R. Co., 80 AppDiv 24, 80 NYS
2« Bradley v. Camp Mfg. Co., 177 513.
NC 153, 98 SE 318. South Carolina. But see Mont-
25 Hubbard & Co. v. Goodwin, 175 gomery v. Seaboard Air Line R.
NC 174, 95 SE 152. Co., 73 SC 503, 53 SE 987.
95
PROVINCE OP COURT AND JURY
§30
An instruction that the jury "are at liberty to decide that
the preponderance of the evidence is on the side which, in their
judgment, is sustained by the more intelligent and better in-
formed, and the more credible and the more disinterested wit-
nesses, whether these are the greater or the smaller number,"
is in effect telling them that greater weight is to be given to
the testimony of the more intelligent and better informed, re-
gardless of other considerations in the case.28 So, while the jury
may take into consideration, along with other facts and circum-
stances, the intelligence and credibility of the witnesses and
their opportunities of seeing and hearing the facts, it is beyond
the court's domain to tell the jury they "should" rather than
"may" take into consideration such factors.29 The court may
Texas. Where the court, in de-
fining preponderance, says that "this
does not mean that there shall be
a greater number of witnesses on
one side than on the other," the
impression likely to be conveyed to
the jury is that they may disregard
the number of witnesses as bearing
on the question of preponderance,
while, as a matter of fact, the jury
may consider the number, as well as
any other factors or elements en-
tering into the case, in determining
weight. Dallas Cotton Mills v. Ash-
ley (TexCivApp), 63 SW 160.
28 Colorado. In Garver v. Garver,
52 Colo 227, 121 P 165, AnnCas
1913D, 674, the defendant requested
and the court gave an instruction
that "although the preponderance
of the evidence is not always de-
termined by the number of wit-
nesses testifying in a case, yet if
in a case there are only one or two
witnesses who testify to a given
state of facts, and six or seven wit-
nesses of equal candor, fairness, in-
telligence, and truthfulness and
equally well corroborated by all the
other evidence, and who have no
great interest in the result of the
suit, testify against such facts, then
the preponderance of the evidence is
determined by the number of wit-
nesses." The court on appeal, in
holding that the instruction was
clearly erroneous, said: "It sug-
gests a comparison of the number of
witnesses testifying on either side —
is a comment on the evidence — and
is an erroneous rule. The prepon-
derance of the evidence is never
determined by the number of wit-
nesses, but by the greater weight of
all the evidence. And the greater
weight does not necessarily mean a
greater number of witnesses who
testify on either side of the issue
or issues involved."
Illinois. W. H. Stubbings Co. v.
Worlds Columbian Exposition Co.,
110 IllApp 210.
Pennsylvania. The weight of evi-
dence is not a question of mathe-
matics, but depends on its effect in
inducing belief. It often happens
that one witness standing uncor-
roborated may tell a story so natural
and reasonable in its character, and
in a manner so sincere and honest,
as to command belief, although sev-
eral witnesses of equal apparent
respectability may contradict him.
The manner and appearance of the
witness, the character of his story
and its inherent probability may be
such as to lead a jury to believe his
testimony, and accept it as the
truth of the transaction to which it
relates. The question for the jury
is not on which side are the wit-
nesses most numerous, but "what
testimony do you believe?'* Braun-
schweiger v. Waits, 17& Pa 47, 36
A 155.
2» Illinois. Walters v. Checker
Taxi Co., 265 IllApp 329.
§ 31 INSTRUCTIONS — RULES GOVERNING 96
inform the jury that preponderance of the evidence means the
greater weight of credible testimony.30 It is a correct statement
of the law, however, to inform the jury that if they find from
the evidence the plaintiff has, by a preponderance of the evidence,
proved the material allegations of his declaration, their verdict
will be in his favor and there can be no valid objection, in this
connection, to the use of the word "will" rather than "may."31
It is error to tell the jury that preponderance of the evidence
meant the greater weight of the testimony, where the evidence
consisted in part of testimony and in part of exhibits,32
Special attention should be made to instructions relating to
the number of witnesses testifying for and against an issue of
fact. It is error to tell the jury that the probability of truth is
on the side of the party having the affirmative of the issue, even
though the same instruction charges that the preponderance of
the evidence is not necessarily disclosed by the greater number
of witnesses.33 Where an instruction tells the jury that the
evidence which convinces them most strongly of its truthfulness
is of greater weight and does not assume to instruct as to how
to determine the greater weight, whether by a larger or smaller
number of witnesses, there can be no good ground for objec-
tion.34 An instruction which may lead the jury to understand
that the preponderance of the evidence depends upon the number
of witnesses testifying on each side of the case is erroneous.35
Some states by statute, however, permit the judge to tell the
jury that they may consider the number of witnesses, but the
statutory rule is not applicable in a case where the numbers on
both sides are the same.36
§ 31. Comments and expressions of opinion — Cases of contract
and tort,
The rule prohibiting the court from commenting on the weight
of the evidence or intimating an opinion as to its weight, im-
portance, or effect, applies with equal force to actions of contract,
and actions of tort.
Indiana. Pennsylvania Co. v. 34 Fierberg v. Whitcomb, 119
flunsley, 23 IndApp 37, 54 NE 1071. Conn 390, 177 A 135; Indianapolis
30 Moll v. Pollack (Mo), 8 SW2d Street Ry. Co. v. Schomberg (Ind
38, App), 71 NE 237.
31 North Chicago Street R. Co. v. 35Kempf v. Himsel, 121 IndApp
Zeiger, 78 IllApp 463. 488, 98 NE2d 200; Industrial Comm.
32 John Bright Shoe Stores Co. v. v. Jasionowski, 24 OhApp 66, 156
Scully, 24 OhApp 15, 156 NE 155. NE 616.
33Ennes v. Dunham, 266 Mich 3 e Atlanta Gas-Light Co. v. Cook,
616, 254 NW 224. 35 GaApp 622, 134 SE 198 (in-
volving Civ. Code 1910, §5732).
97 PROVINCE OF COURT AND JURY § 31
Since tort and contract cases are prevalent, it is advisable
to give examples of violations and compliances with the rule
prohibiting the judge's comments and expression of opinion on
the evidence. It is clear that the prohibitory rule does apply to
actions of contract37 and actions of tort.38
(1) Contracts. In an action on a note, the point at issue
being the genuineness of the instrument, it is for the jury to
determine such question and it is erroneous to instruct that
evidence of handwriting "is of a character little worthy of
credence'' and that the jury may refuse to find the note to be
genuine, from such evidence alone, where there is no proof as to
consideration.39 Where the grantor of a deed was an infant,
the court erred in telling the jury that such grantor ratified the
deed after becoming of age, by keeping the amount received for
the grant.40 It was held not an expression of opinion by the
court that the verdict should be for the plaintiff to charge that
if interest was allowed for breach of contract it should be added
to the principal, and the verdict should be for that amount.41
In a suit on an insurance policy, however, a requested charge
was: "If the agent, though mistaken, insures one person when
he should have insured another, the person who should have
been insured can not sue in an action at law on a contract of
insurance that should have been made without first having the
contract reformed and corrected in a court of equity/' The court
modified the charge by saying, "But I think you will not have
any difficulty about going into the court of equity about refor-
mation of the contract." It was held that the modified charge
37 Alabama. Copeland v. Pope, North Carolina. Knight v. Vin-
198 Ala 257, 73 S 490; Jones v. First cennes Bridge Co., 172 NC 393, 90
Nat. Bank, 206 Ala 203, 89 S 437. SE 412 (effect of release).
California. Rosenberg- v. Rogers, Ohio. Klass v. Klass, 27 OhApp
52 CalApp 574, 199 P 50. 459, 161 SE 406.
Georgia. Venable v. Lippold, 102 Oklahoma. Chicago, R. I. & P. R.
Ga 208, 29 SE 181; Roberson v. Co. v. Cotton, 62 Okl 168, 162 P 763
Weaver, 25 GaApp 726, 104 SE 912. (release for personal injuries).
Maryland. Calvert Bank v. J. South Carolina. Miller v. South-
Katz & Co., 102 Md 56, 61 A 411. ern R. Co., 69 SC 116, 48 SE 99.
Massachusetts. Henderson v. West Virginia. Musick v. Home
Raymond Syndicate, 183 Mass 443, Ins. Co., 105 WVa 341, 142 SE 436.
67 NE 427 ; Mark v. Stuart-Howland Wisconsin. Hunkins v. Milwaukee
Co., 226 Mass 35, 115 NE 42, 2 & St. P. R. Co., 30 Wis 559.
ALR 678. 3S Arkansas. McB enough v. Wil-
Minnesota. Hughes v. Meehan, 81 liaxns, 77 Ark 261, 92 SW 783, 8
Minn 482, 84 NW 331. LRA (N. S.) 452, 7 AnnCas 276.
Montana. Harrington v. Butte & California. Quint v. Dimond, 147
Boston Min. Co., 33 Mont 330, 83 Cal 707, 82 P 310.
P 467, 114 AmSt 821. Florida. Holman Live Stock Co.
v. Louisville & N. R. Co., 81 Fla
194, 87 S 750.
§31
INSTRUCTIONS — RULES GOVERNING
98
could not be construed as Indicating the court's opinion as to
the effect of the testimony.42
(2) Torts. Negligence in general. Where the case is one of
tort and involves a question of negligence, it is the right of
the jury to determine the question of due care or negligence
after a consideration of the whole evidence and the court may
not tell the jury what facts would, or would not, constitute
negligence,43 or that render one guilty or not guilty of contribu-
Georgia. Seaboard Air Line R.
Co. v. Johnson, 139 Ga 471, 77 SE
632; Decatur v. Hinson, 29 GaApp
131, 113 SE 702.
Illinois. Pittsburgh, C. C. & St.
L. R. Co. v. Banfill, 206 111 553, 69
NE 499.
Iowa. Kinyon v. Chicago & N. W.
R. Co., 118 la 349, 92 NW 40, 96
AmSt 382.
Michigan. Butler v. Detroit, Y.
& A. A. R. Co., 138 Mich 206, 101
NW 232.
Minnesota. Haeger v. Leuthold,
153 Minn 544, 191 NW 257.
Pennsylvania. Lingle v. Scranton
R. Co., 214 Pa 500, 63 A 890.
Tennessee. Louisville & N. R. Co.
v. Bohan, 116 Tenn 271, 94 SW 84.
Texas. Collins v. Chipman, 41
TexCivApp 563, 95 SW 666.
39 Rose v. Vandercar, 21 IllApp
345.
40Holbrook v. Montgomery, 165
Ga 514, 141 SE 408.
4 ' Atlanta Oil & Fertilizer Co. v.
Phosphate Min. Co., 25 GaApp 430,
103 SE 873.
42 Montgomery v. Delaware Ins.
Co., 67 SC 399, 45 SE 934.
43 Alabama. Dye-Washburn Ho-
tel Co. v. Aldridge, 207 Ala 471, 93
S 512; Centennial Ice Co. v. Mitchell,
215 Ala 688, 112 S 239; Iron City
Grain Co. v. Birmingham, 217 Ala
119, 115 S 99; Hines v. Beasley, 17
AlaApp 636, 88 S 1.
Arkansas. St. Louis Southwestern
R. Co. v. Aydelott, 128 Ark 479, 194
SW 873.
California. Albert v. McKay &
Co., 53 CalApp 325, 200 P 83; Ved-
der v. Bireley, 92 CalApp 52, 267 P
724.
Georgia. Western & A. R, Co. v.
Jarrett, 22 GaApp 313, 96 SE 17;
Atlanta & W. P. R. Co. v. Miller,
23 GaApp 347, 98 SE 248; Georgia
R. & Power Co. v. Shaw, 25 GaApp
146, 102 SE 904; Tennessee A. &
G. R. Co. v. Neely, 27 GaApp 491,
108 SE 629; Holloway v. Milledge-
ville, 35 GaApp 87, 132 SE 106 (hold-
ing that court has no right to in-
struct jury that specified acts of a
driver of car constituted negli-
gence); Huckabee v. Grace, 48 Ga
App 621, 173 SE 744.
Illinois. Engel v. Frank Parma-
lee Co., 169 IllApp 410; Lenihan v.
Chicago R. Co., 195 IllApp 144;
Hanke v. Chicago R. Co., 208 IllApp
293.
Indiana. New York, C. & St. L.
R. Co. v. King, 85 IndApp 510, 154
NE 508.
Iowa. Powell v. Alitz, 191 la 233,
182 NW 236.
Massachusetts. Sullivan v. Wor-
cester, 232 Mass 111, 121 NE 788.
Missouri Kennedy v. Phillips,
319 Mo 573, 5 SW2d 33; Fanning v.
Hines, 206 Mo App 118, 222 SW 1038;
Boland v. St. Louis-San Francisco
R. Co. (Mo), 284 SW 141 (holding
it error for the trial court to charge
that a guest riding in an auto is
in duty bound under the law to
"look and listen") ; Ferguson v. Mis-
souri Pacific R. Co. (MoApp), 186
SW 1134.
It is not the expression of an
opinion to state that plaintiff, if
the injury resulted from accident
and not from negligence of de-
fendants, could not recover. McDon-
ald v. Central Illinois Constr. Co.,
196 MoApp 57, 190 SW 633. See
99
PROVINCE OP COURT AND JURY
181
tory negligence.44 The court is guilty of a comment within the
rule where he states that an injured person was entitled to sym-
pathy.45 The court may not express the opinion that a party
had not exercised due care after discovery of the plaintiff's dan-
ger,46 or that it was not contributory negligence to make the
wrong choice of means of escape when a party was confronted
with sudden peril.47
also Bussey v. Don (Mo), 259 SW
791.
North Carolina. Reid v. Carolina,
C. & 0. R. Co., 180 NC 511, 105 SE
169 (proper equipment of locomo-
tive); Matthews v. Hudson Bros.,
184 NC 622, 113 SE 780.
Ohio. Piqua v. Morris, 98 OhSt
42, 120 NE 300, 7 ALR 129; Me-
Murtrie v. Wheeling Trac. Co., 107
OhSt 107, 140 NE 636; Cleveland
R. Co. v. Lee, 13 OhApp 255, 32
OhCtApp 135; Keiner v. Wheeling
& L. E. R. Co., 34 OhApp 409, 171
NE 253.
Oklahoma. Chicago, R. I. & P. R.
Co. v. Dizney, 61 Okl 176, 160 P
880 (leaving- open trap door in
vestibule of train — no expression of
opinion).
Pennsylvania. Atlantic Ref. Co.
v. Pennsylvania R. Co., 270 Pa 415,
113 A 570.
Rhode Island. Sears v. A. Ber-
nardo & Sons, 44 RI 106, 115 A
647.
South Carolina. Huggin v. Gaff-
ney, 134 SC 114, 132 SE 163 (hold-
ing it error for the trial court to
charge that a traveler assumes the
risk in going a dangerous way when
there is a safe way for him to go).
Texas. Abilene Gas & Elec. Co.
v. Thomas (TexCivApp), 194 SW
1016 (failure to turn off electric
current) ; Missouri K. & T. R. Co.
v. Luten (TexComApp), 228 SW
159; St. Louis Southwestern R. Co.
v. Ristine (TexComApp), 234 SW
1086.
Utah, Montague v. Salt Lake &
U. R. Co., 52 Utah 368, 174 P 871.
44 Arizona. Varela v. Reid, 23
Ariz 414, 204 P 1017.
Arkansas. Richardson v. Reap,
173 Ark 96, 291 SW 987 (contribu-
tory negligence).
California. Young v. Southern
Pacific Co., 182 Cal 369, 190 P 36.
Georgia. In an instruction that
if defendants were negligent, and
plaintiff could have avoided the ac-
cident by ordinary care, plaintiff
cannot recover, the use of word
"accident" was not open to objec-
tion as intimation of opinion that
injury was result of accident. Ivey
v. Louisville & N. R. Co., 18 GaApp
434, 89 SE 629.
Illinois. Vittum v. Drury, 161
IllApp 603; Thorne v. Southern Illi-
nois R. & Power Co., 206 IllApp
262.
Indiana. Chicago & E. R, Co. v.
Hunter, 65 IndApp 158, 113 NE
772 (choice of dangerous route
around train blocking crossing).
Mississippi. Gulf & S. I. R. Co.
v. Adkinson, 117 Miss 118, 77 S 954
(not improper to characterize negli-
gence of injured person gross where
he exercises no care for his own
safety).
New Jersey. Rhodehouse v. Di-
rector General of Railroads, 95 NJL
355, 111 A 662.
Oklahoma. Sweet v. Henderson,
72 Okl 51, 178 P 666.
Tennessee. Middle Tennessee R.
Co. v. McMillan, 134 Tenn 490, 184
SW 20.
Texas. Baker v. Str eater (Tex
CivApp), 221 SW 1039; Dowdy v.
Southern Trac. Co. (TexComApp),
219 SW 1092.
4S Toledo, C. & O. R. Co. v. Miller,
103 Oh 17, 132 NE 156.
46Studstill v. Bergsteiner, 25 Ga
App 405, 103 SE 691; Paris Transit
Co. v. Fath (TexComApp), 231 SW
1080.
47 Michigan City v. Werner, 186
Ind 149, 114 NE 636.
§ 31 INSTRUCTIONS — RULES GOVERNING 100
Automobiles. It is error to give an instruction that defendant
was guilty of negligence per se in driving on the highway with
knowledge that his brakes were inadequate.48 Thus, it is im-
proper for the court to tell the jury that the defendant in an
automobile accident case could lawfully go thirty-five miles an
hour.49 It is error to charge that the driver of an automobile
is in duty bound to sound his horn only when someone is in the
path of his car or is about to pass in front of it.50 Where the
defendant in an automobile collision case denied "all the material
allegations of the petition/' one of which was that the defend-
ant's driver was negligent, it is error to charge the jury that
defendant failed to specifically deny, so as to create the impres-
sion that defendant had admitted the truth of this issue.5 '
It is not proper for the court to instruct in a collision case
that under the evidence it was negligence for the defendant to
fail to see the plaintiff sooner than he did.52 In an automobile
damage action, it is error for the court to instruct the jury to
find for the defendant if they believed he operated the automobile
as he testified he did.53 In an action for damages from a motor
accident, it is not an invasion of the jury's realm for the court
to charge that the motorist when blinded by approaching lights
is under a duty to reduce speed.54
It is a charge on the weight of the evidence for the court
to tell the jury to find for the defendant if they find that the
plaintiff's automobile struck the defendant's truck in a desig-
nated way.55 It was held erroneous for the court to instruct the
jury that a motorist was guilty of contributory negligence if he
permitted his car to collide with a pole.56
Public carriers. There is no error in refusing to instruct, as
a matter of law, that plaintiff was not negligent in attempting
to drive across a track if he judged at the time it could be safely
done.57 It is error to charge the jury in an action against a rail-
road for damages from fire set by a locomotive, that they should
find a verdict for the defendant if the evidence as to how the
fire was started was evenly balanced, or if they were unable to
48 Landry v. Hubert, 101 Vt 111, 53 Weiseltier v. Jacoby, 220' App
141 A 593, 63 ALR 396. Div 582, 222 NYS 46.
49 Soda v. Marriott, 118 CalApp S4 Hill v. Peres, 136 CalApp 132,
635, 5 P2d 675. See Summers v. 28 P2d 946.
Spivey's Admr., 241 Ky 213, 43 55 Johnson v. Wofford Oil Co., 42
SW2d 666. GaApp 647, 157 SE 349.
50Gano v. Zidell, 140 Or 11, 10 56 Keller v. Pacific Tel. & T. Co.,
P2d 365, 12 P2d 1118. 2 CalApp2d 513, 38 P2d 182.
5 ' Reese v. Waltz, 14 OhApp 295. 57 Rubinovitch v. Boston Elevated
52 Quillin v. Colquhoun, 42 Idaho R. Co., 192 Mass 119, 77 NE 895.
522, 247 P 740.
101 PROVINCE OF COURT AND JURY § 31
determine how or by whom the fire was started.58 So, as it is
the duty of a railroad company to stop its trains at a station,
the question whether, in a particular case, a train was so stopped
is for the jury, and the court is not at liberty to charge as to
what distance past the usual stopping place a train may go.59
The jury should not be told that it Is the duty of railroads to
blow whistles at railroad crossings when necessary.60 Where
the principal point at issue is whether there was any defect in a
locomotive and whether the air brakes were applied, an Instruc-
tion is highly prejudicial which tells the jury that the evidence
introduced tending to show the alleged defective condition of
the brake valve could not have been the proximate cause of the
accident and was not a valid defense.6 ' The court may not express
the opinion that an injured person was a passenger,62 or an
employee,63 or that a properly equipped street car is easily
stopped.64
Assault and battery. In an action for damages from an as-
sault it is improper for the court to charge the jury to find for
the defendant if they believed the plaintiff had been fully com-
pensated.65
Malicious 'prosecution. It is an invasion of the jury's province
for the court to tell them that malice may be inferred from
named circumstances.66 In an action for malicious prosecution,
it is error for the court to charge the jury that the evidence was
insufficient to show that defendant relied upon the advice of
counsel as vindication.67
False imprisonment. In an action for wrongful arrest, it is
error to instruct the jury that they are warranted in finding
the arrest was maliciously made if it was wrongful and without
probable cause.68
58 Durrett v. Mississippian R. Co., 909. But see Hellman v. Los An-
171 Miss 899, 158 S 776. geles R. Corp., 135 CalApp 627, 27
59 Cooper v. Georgia, C. & N. R. P2d 946, 28 P2d 384.
Co., 61 SC 345, 39 SE 543. 63 Hudson v. St. Louis & South-
An instruction as to duty of the western R. Co. (TexComApp), 295
employees of a railway on discover- SW 577, denying reh. of 293 SW
ing that by mistake they have car- 811.
ried a passenger beyond his desti- 64 Langford v. San Diego Elec.
nation is not an instruction upon R. Co., 174 Cal 729, 164 P 398.
the facts in the case. Laird v. At- 6S Burke v. Middlesworth, 92
lantic Coast Line R. Co., 136 SC IndApp 394, 174 NE 432.
34, 134 SE 220. 66 Peterson v. Grayce Oil Co.
60 Louisville & N. R. Co. v. Gal- (TexCivApp), 37 SW2d 367.
loway, 219 Ky 595, 294 SW 135. 67 Beard v. Wilson, 211 la 914,
6 * Louisville & N. R. Co. v. Bohan, 234 NW 802.
116 Tenn 271, 94 SW 84. 6S Greaves v. Kansas City Junior
62 Georgia Southern & F. R. Co. Orpheum Co. (MoApp), 80 SW2d
v. Overstreet, 17 GaApp 629, 87 SE 228.
§ 32 INSTRUCTIONS — RULES GOVERNING 102
Trespass to chattels. The trial court went beyond proper
bounds in charging the jury that if the proof showed the delivery
of an automobile to a garage and that it was afterward missing,
such facts were prima facie evidence of theft.69
Fraud. It was an expression of opinion on the facts to charge
that if one buys the property of another and soon thereafter sells
it for less than he paid, then this is evidence of fraudulent intent
not to pay.70
Defamation. It is held that there is no expression of opinion
under the rule in an action of slander by a charge that the jury
should have no prejudice against that character of action, for it
was allowed by law.7 !
Landowners. Where plaintiff was injured by falling down a
stairway, and it was in dispute whether the place was light or
dark, there was an expression of opinion in a charge that if the
place was dark it was the duty of plaintiff to get a light if he
was not familiar with the place.72
Alienation of affections. There was a comment on the evi-
dence in an alienation of affections suit where the court told the
jury that plaintiff's alleged denials of his marriage were entitled
to great weight, and that his statements that he was married
were entitled to little weight.73
Damages* Mortality tables were rendered conclusive evidence
by the effect of a court's charge that the plaintiff had an expec-
tancy of twenty-eight years fixed by law from the time of the
injury, and the instruction was erroneous.74 Though the remark
be inadvertent, it is error in a personal injury action for the court
to say to the jury that the plaintiff would be compelled to bear
permanent injury.75
§ 32. Comments and expressions of opinion — Criminal cases.
The rule prohibiting comments on the evidence, or expressions
of opinion as to its weigjit, importance, or effect, applies with
equal force to instructions given by the court in criminal prose-
cutions.
Citations are numerous supporting the prohibition as to com-
69 Export Ins. Co. v. Royster, 177 73 Butterfield v. Ennis, 193 MoApp
Ark 899, 8 SW2d 468. 638, 186 SW 1173.
7 a Fountain v. Fuller E. Callaway 74 Taylor v. J. A. Jones Constr.
Co., 144 Ga 550, 87 SE 651. Co., 193 NC 775, 138 SE 129.
71 Lewis v. Williams, 105 SC 165, 75 Cog-dill v. Boice Hdw. Co., 194
89 SE 647. NC 745, 140 SE 732.
72Bingham v. Marcotte, Cote &
Co.? 115 Me 459, & A 43&
103
PROVINCE OF COURT AND JUEY
32
ments on the evidence76 and expressions of opinion as to the
weight of the evidence.77
In general. There is an invasion of the jury's province by
instructions as to the inference to be drawn from testimony
76 California. People v. Briley
(CalApp), 48 P2d 734.
Florida. Hampton v. State, 50 Fla
55, 39 S 421.
Idaho. State v. Shuff, 9 Idaho
115, 72 P 664.
Illinois. People v. Kelly, 347
111 221, 179 NE 898, 80 ALR 890.
Louisiana. In a prosecution for
entering a shop with intent to steal
therefrom, an instruction is permis-
sible which defines a shop by re-
ferring to a place such as that
claimed to have been entered by the
defendants. State v. Garon, 161 La
867, 109 S 530.
Massachusetts. It is an improper
comment on the evidence, rather
than a statement of matters of
law, for the court to refer to the
defendant's explanation of circum-
stantial evidence and to discuss the
way different men will act when
facing: death or distress, and a re-
quest for such an instruction is
properly refused. Commonwealth v.
Mercier, 257 Mass 353, 153 NE 834.
Michigan. People v. Jones, 24 Mich
215.
Missouri. State v. Smith, 53 Mo
267; State v. Shelton, 223 Mo 118,
122 SW 732; State v. Rollins, 226
Mo 524, 126 SW 478; State v. Cruts,
288 Mo 107, 231 SW 602 (error in
comment on part of testimony);
State v. Murphy, 292 Mo 275, 237
SW 529; State v. Johnson (Mo),
234 SW 794 (statutory rape).
Montana. State v. Duncan, 82
Mont 170, 266 P 400.
A charge stating that certain
testimony is corroborative of other
testimony is a comment on the
weight of the evidence. State v.
Keerl, 29 Mont 508, 75 P 362, 101
AmSt 579.
Oklahoma. Sherman v. State, 20
OklCr 306, 202 P 521.
Texas. Green v. State, 60 TexCr
530, 132 SW 806.
Washington. State v. Vance, 29
Wash 435, 70 P 34.
It is not a comment on the evi-
dence to charge that the jury in
the case of the defendant may con-
sider the great interest he has in
the result of their verdict. State
v. Carey, 15 Wash 549, 46 P 1050.
77 Alabama. Hall v. State, 134
Ala 90, 32 S 750; Smith v. State,
165 Ala 50, 51 S 610; Gulliver v.
State, 15 AlaApp 375, 73 S 556.
Arizona. Hurley v. Territory, 13
Ariz 2, 108 P 222.
Arkansas. Crosby v. State, 154
Ark 20, 241 SW 380.
It is not an opinion that accused
should be found guilty in instruc-
tion on the various degrees of homi-
cide, that if the jury found the
defendant not guilty of murder in
the first degree they might find him
guilty in the second, or lesser de-
grees. Witham v. State, 149 Ark
324, 232 SW 437.
California. People v. Barthleman,
120 Cal 7, 52 P 112; People v. Con-
verse, 28 CalApp 687, 153 P 734;
People v. Andrade, 29 CalApp 1, 154
P 283.
Florida. Blanton v. State, 52 Fla
12, 41 S 789.
The court should exercise utmost
care where human life is involved
not to let any expression fall capable
of being interpreted by the jury
as an index of what lie thinks of
the prisoner, his counsel or his case.
Mathis v. State, 45 Fla 46, 34 S
287
Doyle v. State, 39 Fla 155, 22 S
272, 63 AmSt 159; Green v. State,
43 Fla 556, 30 S 656.
Georgia. Stephenson v. State, 40
Ga 291; Tiget v. State, 110 Ga 244,
34 SE 1023; Dozier v. State, 116 Ga
583, 42 SE 762; Davis v. State, 153
Ga 669, 113 SE 11 (poison found in
stomach sufficient to produce death) ;
Dyer v. State, 6 GaApp 390, 65 SE
§32
INSTRUCTIONS — RULES GOVERNING
104
when it is susceptible of more than one rational conclusion;78
that certain parts of the evidence did not have much probative
42; Brown v. State, 17 GaApp 300,
86 SE 661; Walton v. State, 17
GaApp 810, 88 SE 590.
It is not an expression of opinion
that, the law presumes every act
which is of itself unlawful to be
criminally intended until the con-
trary appears. Brundage v. State,
7 GaApp 726, 67 SE 1051.
An instruction as to form of ver-
dict and punishment in case of rec-
ommendation by jury is not an ex-
pression of opinion as to defendant's
guilt. Griffin v. State, 18 GaApp
402, 89 SE 625.
Idaho. State v. Marren, 17 Idaho
766, 107 P 993.
Illinois. People v. Williams, 240
111 633, 88 NE 1053; People v. Mc-
Cann, 247 111 130, 93 NE 100, 20
AnnCas 496.
Indiana. Sater v. State, 56 Ind
378.
Louisiana. State v. Johnson, 139
La 829, 72 S 3701 (how far absence
of motive may go toward establish-
ing innocence) ; State v. Hopkins, 50
LaAnn 1171, 24 S 188.
Michigan. People v. Gastro, 75
Mich 127, 42 NW 937; People v.
Durham, 170 Mich 598, 136 NW 431.
Mississippi. Lever ett v. State, 112
Miss 394, 73 S 273.
Missouri. State v. Devorss, 221
Mo 469, 1201 SW 75; State v. Hall,
228 Mo 456, 128 SW 745; State v.
Cannon, 232 Mo 205, 134 SW 513;
State v. Reed, 237 Mo 224, 140 SW
909.
Montana. State v. Mahoney, 24
Mont 281, 61 P 647.
Nebraska. Clarence v. State, 86
Neb 210, 125 NW 540.
New Hampshire. State v. Rhea-
ume, 80 NH 319, 116 A 758.
North Carolina. State v. Wil-
liams, 172 NO 894, 90 SE 306.
Ohio. Fouts v. State, 113 OhSt
450, 149 NE 551; Zimmerman v.
State, 42 OhApp 407, 182 NE 354.
But see Sandoffsky v. State, 29
OhApp 419, 163 NE 634.
Oklahoma. Havill v. State, 7
OklCr 22, 121 P 794; Collegenia v.
State, 9 OklCr 425, 132 P 375;
Nicholson v. State, 13 OklCr 123,
162 P 447.
Oregon. State v. Rader, 62 Or 37,
124 P 195.
Pennsylvania. It is not a sugges-
tion for verdict of guilty for court
to charge that it is the duty of jury
merely to pass on evidence, regard-
less of consequences. Common-
wealth v. Webb, 252 Pa 187, 97 A
189.
Texas. Best v. State, 58 TexCr
327, 125 SW 909.
A charge that if confessions were
so contradictory in themselves that
they could not be reconciled, they
might be disregarded, was on the
weight of evidence, since the fact
that they were contradictory would
not affect their admissibility, but
would only go to their weight as
evidence. Goode v. State, 57 TexCr
220, 123 SW 597.
In a prosecution for unlawfully
transporting liquor the defendant
testified that the liquor was forced
upon him and that he then walked
a few steps down the road to talk
the matter over with a friend, and
in view of this testimony it was
held error for the trial court to tell
the jury that to "transport" meant
to carry something "without regard
to the distance moved." Holden v.
State, 102 TexCr 429, 278 SW 204.
Virginia. Dejarnette v. Common-
wealth, 75 Va 867; Corvin v. Com-
monwealth, 131 Va 649, 108 SE 651,
39 ALR 592 (bigamy).
West Virginia. State v. Allen, 45
WVa 65, 30 SE 209.
78 Alabama. Harrell v. State, 166
Ala 14, 52 S 345; Ford v. State,
22 AlaApp 59, 112 S 182.
Ohio. Crobaugh v. State, 12 OLA
404.
Texas. Cromeans v. State, 59
TexCr 611, 129 SW 1129.
105
PROVINCE OF COURT AND JURY
§32
force;79 as to what other juries in other counties have done, in
similar cases;80 that certain evidence has a certain tendency;81
that certain presumptions arise from stated facts.82 A charge on
the weight of evidence favorable to accused is no more proper
than one unfavorable to him.83 The court may not tell the jury
that if from all the evidence there arose two theories, one con-
sistent with defendant's innocence, and the other with his guilt,
the jury should adopt the theory of innocence.84
An instruction applying the law to the facts does not charge
on the weight of the evidence.85 A statement of a contention of
the prosecution is not an intimation of the opinion of the court
on what had been proved.86
Character and reputation. There is such an invasion by in-
structions as to the conclusiveness of evidence of previous good
or bad character,87 although a New York court has declared in
a case depending upon circumstantial evidence that it was error
to refuse to instruct the jury that a reasonable doubt might be
created from evidence of good character alone.88 The court should
not charge that evidence of the defendant's good character may
Kentucky. Tines v. Common-
wealth, 25 KyL 1233, 11 SW 363.
83 Burns v. State, 65 TexCr 175,
145 SW 356; Carver v. State, 67
TexCr 116, 148 SW 746.
84 Harvey v. State, 15 AlaApp
311, 73 S 200; White v. State, 18
AlaApp 96, 90 S 63.
85 Alabama. Stevenson v. State,
18 AlaApp 174, 90 S 140.
Georgia. Buckhanon v. State, 151
Ga 827, 108 SE 209; Lumpkin v.
State, 152 Ga 229, 109 SE 664
(reasonable doubt) ; Merritt v.
State, 152 Ga 405, 110 SE 160
(reasonable doubt).
86 Linder v. State, 17 GaApp 310,
86 SE 741.
87 Arkansas. There was an inva-
sion by an instruction that it was
more probable that a man of bad
character would commit a crime
than a man of good character. Long
v. State, 76 Ark 493, 89 SW 93,
91 SW 26.
Montana. State v. Jones, 32 Mont
442, 80 P 1095.
Ohio. State v. Hare, 87 OhSt 204,
100 NE 825.
88 People v. D'Anna, 243 AppDiv
259, 277 NYS 279.
79 People v. Van Arsdale, 242
AppDiv 545, 275 NYS 680, appeal
dismissed in 266 NY 502, 195 NE
173.
80 State v. Price, 103 SC 277, 88
SE 295.
81 Indiana. It is not error to in-
struct that there is some evidence
tending to prove a certain fact where
there is no doubt of such evidence
having been given and its weight
and significance are left to the jury.
White v. State, 153 Ind 689, 54 NE
763.
Michigan. People v. Coughlin, 67
Mich 466, 35 NW 72.
New York. But see People v.
Walker, 85 AppDiv 556, 83 NYS 372.
82 Alabama. It was an invasion
by instruction that malice from the
use of a deadly weapon could not
be presumed in the case. Thayer
v. State, 138 Ala 39, 35 S 406.
Colorado. But see Newby v. Peo-
ple, 28 Colo 16, 62 P 1035.
An instruction that where such
means is used as is likely to pro-
duce death the legal presumption
is that death was intended invaded
province of jury. Nilan v. People,
27 Colo 206, 60 P 485.
§32
INSTRUCTIONS — RULES GOVERNING
106
raise a reasonable doubt as to his guilt;89 that the strongest
proof of chastity was that no one heard the reputation of prose-
cutrix discussed.90 It is erroneous to give the affirmative charge
that previous good character is not a defense.91 A defendant's
character is not put in issue by the fact that the charge of crime
has been lodged against him, and it is error for the court so to
instruct the jury.92
Defendant's declarations and testimony. It is error to charge
on the weight and credibility of confessions;93 the weight of
admissions and declarations;94 that from defendant's failure to
deny extrajudicial statement, the inference might be drawn that
he admitted making the statement.95
Flight. It is error to charge that there is a presumption of
guilt from flight,96 though it is not a comment on the weight of
evidence to tell the jury that fear and guilty knowledge may be
inferred and that flight is a circumstance from which the in-
ference may arise;97 or attempt to escape.98
89 Federal. Kreiner v. United
States, 11 F2d 722; Seheib v. United
States, 14 F2d 75.
Mississippi. Dewberry v. State,
168 Miss 366, 151 S 479.
Nevada. Evidence of the defend-
ant's good character is not dispar-
aged by an instruction to convict
him regardless of such good charac-
ter, if the jury believed him guilty
beyond a reasonable doubt. State
v. Boyle, 49 Nev 386, 248 P 48.
90 Welch v. State, 110- Miss 147,
69 S 770.
9 ' Federal. In Nanfito v. United
States, 20 F2d 376, it was held in-
cumbent on the court to instruct
that evidence of good character
should be considered by the jury.
Illinois. People v. Rogers, 324 111
224, 154 NE 909.
Pennsylvania. It is error to charge
that the mere proof of good char-
acter of the accused cannot gen-
erate a reasonable doubt. Common-
wealth v. Mack, 92 PaSuperCt 165.
92 Smith v. State, 25 AlaApp 79,
141 S 265.
93 Arizona. Faltin v. State, 17
Ariz 278, 151 P 952.
Arkansas. Owens v. State, 120
Ark 562, 179 SW 1014.
California. People v. Vuyacich,
57 CalApp- 233, 206 P 1031.
Georgia. Esa v. State, 19 GaApp
14, 90 SE 732.
Ohio. Blackburn v. State, 23
OhSt 146; Edinger v. State, 12
OhApp 362, 32 OhCtApp 529.
94 Johnson v. State, 15 AlaApp
298, 73 S 210. See State v. Davis
(Mo), 84 SW2d 930.
95 State v. Long (Mo), 80 SW2d
154.
96 California. See People v. Hall,
220 Cal 166, 30 P2d 23, 996; People
v. Murguia (Cal), 48 P2d 958.
Iowa. State v. Harding, 204 la
1135, 216 NW 642.
Mississippi. The jury may be told
that an inference of fear or guilty
knowledge may be drawn from the
circumstance of flight. Ransom v.
State, 149 Miss 262, 115 S 208.
Oregon. State v. Osborne, 54 Or
289, 103 P 62, 20 AnnCas 627.
An instruction which leaves the
fact of flight of defendant to the
jury and instructs as to the effect
of flight is not invasive. State v.
Lem Woon, 57 Or 482, 107 P 974,
112 P 427.
97Tatum v. State, 142 Miss 110,
107 S 418.
98 State v. Orfanakis, 22 NM 107,
159 P 674.
107
PROVINCE OP COURT AND JURY
182
Credibility of witnesses. It is error for the judge to instruct
on the weight of corroborating evidence;09 the probative value
of impeaching testimony,1 such as a charge which tells the jury
that a witness who had been convicted of a felony was less likely
to tell the truth than one who had not been so convicted,2 but a
charge that the law assumes that a person who has been con-
victed of crime may not be as worthy of belief as one who has
never been so convicted is correct;3 the weight of the testimony
of detectives and police officers;4 that the testimony of expert
witnesses is not conclusive on the jury;5 that certain witnesses
were accomplices, instead of leaving the determination of that
matter to the jury.6
Motive. It is error to instruct that failure to show a motive
for homicide is a circumstance in favor of defendant to be con-
sidered by the jury ;7 that accused was the only one who had a
motive for burning his store.8
99 Alabama. Simmons v. State,
171 Ala 16, 54 S 612; Pearce v.
State, 4 AlaApp 32, 58 S 996.
Arkansas. Kent v. State, 64 Ark
247, 41 SW 849.
Georgia. Coley v. State, 110 Ga
271, 34 SE 845.
Kentucky. Craft v. Common-
wealth, 81 Ky 250, 50 AmRep 160.
Mississippi. Saucier v. State, 102
Miss 647, 59 S 858, AnnCas 1915A,
1044.
New York. People v. O'Farrell,
175 NY 323, 67 NE 588.
Ohio. Sandoffsky v. State, 29 Oh
App 419, 163 NE 634.
Oklahoma. Hill v. Territory, 15
Okl 212, 79 P 757.
1 Alabama. Freeland v. State
(AlaApp), 153 S 294.
Arkansas. It would be erroneous
to instruct a jury to disregard the
bad reputation of a witness. Turner
v. State, 171 Ark 1118, 287 SW 400.
California. In People v. Hard-
wick, 204 CalApp 582, 269 P 427,
it was held error for the court to
advise the jury that a witness who
had been convicted of a crime was
less likely to tell the truth than one
who had not been so convicted.
Nebraska. Strong v. State, 61
Neb 35, 84 NW 410.
Ohio. State v. Kerlin, 51 OhBull
317.
2 People v. Hardwick, 204 Cal 582,
269 P 427, 59 ALR 1480.
3 Boyle v. State, 105 Ind 469, 5
NE 203, 55 AmEep 218; State v.
Sandt, 95 NJL 49, 111 A 651; Cincin-
nati Trac. Co. v. Lied, 9 OhApp 156,
29 OhCtApp 136.
4 Alabama. The court should not
say to the jury that an officer who
testified would receive a fee if the
defendant was convicted, and that
the jury should consider such fact.
Pruitt v. State, 22 AlaApp 353, 115
S 698.
California. People v. Rudolph, 28
CalApp 683, 153 P 721; People v.
Litle, 85 CalApp 402, 259 P 458
(holding an instruction improper
which told the jury to receive with
caution the testimony of informers) .
Washington. It has been held per-
missible for the court to tell the
jury that if investigators bought
liquor without unlawful intent, they
were not accomplices and their testi-
mony need not be corroborated. State
v. Dahl, 139 Wash 644, 247 P 1023.
5 State v. Warren, 326 Mo 843,
33 SW2d 125.
6 Crouch v. State, 37 OhApp 366,
174 NE 799.
*Ince v. State, 77 Ark 418, 88
SW 818; People v. Glaze, 139 Cal
154, 72 P 965; People v. Wilkins,
158 Cal 530, 111 P 612.
8 People v. Perlman, 219 AppDiv
196, 219 NYS 184.
§32
INSTRUCTIONS — RULES GOVERNING
108
Alibi. It is error to instruct that evidence of an alibi is evi-
dence of a suspicious character9 or should be received with
caution,10 although instructions in disparagement of alibi evi-
dence have been approved in other jurisdictions. ' '
Possession. It is error to charge the conclusions from the
recent possession of stolen property;12 that one is guilty of
possessing liquor if he rides in a conveyance knowing it contains
liquor. ' 3
Insanity and intent. It is error to charge that extravagant
acts, nervousness, sleeplessness, and restlessness are symptoms
of insanity ; ' 4 that intent was but a mental state of accused and
often impossible to prove by direct evidence, but that it was
competent to prove it by facts and circumstances;15 that the
jury might consider the fact that defendant was intoxicated.16
Miscellaneous. It is error to charge as to the weight and con-
clusiveness of dying declarations;17 the weight or value of cir-
9 Alabama. It was error to charge
that the failure of the defendant's
proof of alibi was a strong circum-
stance against him. Williams v.
State, 21 AlaApp 319, 108 S 84.
Indiana. Line v. State, 51 Ind 172.
Iowa. But see State v. Minella,
177 la 283, 158 NW 645.
Louisiana. State v. Molay, 174
La 63, 139 S 759.
Michigan. But see People v. Mar-
cus, 253 Mich 410, 235 NW 202.
New York. People v. Russell, 266
NY 147, 194 NE 65; People v.
Robins, 242 AppDiv 516, 275 NYS
940.
Ohio. Radke v. State, 107 OhSt
399, 140 NE 586.
10 State v. Spadoni, 137 Wash
684, 243 P 854.
• i State v. Bird, 207 la 212, 220
NW 110.
Special warning against an alibi
as a defense is not reversible error
if the only witnesses in support of
such alibi have been convicted of
felony. Radke v. State, 107 OhSt
399, 140 NE 586.
1 2 Arkansas. Crosby v. State, 169
Ark 1058, 277 SW 523.
Georgia. Thomas v. State, 18 Ga
App 19, 88 SE 720.
Illinois. People v. Judycki, 302
111 143, 134 NE 134.
Missouri. State v. Swarens, 294
Mo 139, 241 SW 934; State v. Wag-
ner (Mo), 237 SW 750.
Ohio. Doe v. State, 14 OhApp
178.
Oregon. State v. Keelen, 103 Or
172, 203 P 306, 204 P 162, 164.
Texas. Stiles v. State, 89 TexCr
603, 232 SW 805.
Virginia. Myers v. Commonwealth,
132 Va 746, 111 SE 463.
13 Hill v. State, 103 TexCr 531,
281 SW 562.
1 4 Porter v. State, 135 Ala 51, 33
S 694. See State v. Douglas, 312
Mo 373, 278 SW 1016.
1 5 Frazier v. State, 34 OklCr 375,
246 P 652. (But the instruction
was erroneous only when considered
in connection with the facts in-
volved.)
1 6 People v. Nevarro, 135 CalApp
535, 27 P2d 652.
17 Federal. Freihage v. United
States, 56 F2d 127.
Alabama. The fact that the dy-
ing declaration introduced as evi-
dence was taken down by an at-
torney representing the state at the
trial would not warrant a charge
requiring the jury to scrutinize such
declaration carefully for that rea-
son. Parker v. State, 165 Ala 1, 51
S 260.
California. People v. Amaya, 134
Cal 531, 66 P 794.
109
PROVINCE OF COURT AND JURY
§33
cumstantial evidence as compared with direct evidence;18 that
the corpus delicti has been established ; [ 9 that the testimony was
"exceedingly fallible" which related to the identity of the accused
as the one who had purchased poison from which deceased died;20
that there was not a sufficient lapse of time for "cooling" pe-
riod;21 that the defendant is guilty of negligent homicide if he
was driving his car, which caused the death of the deceased, at
an unlawful rate of speed at the time of the offense.22
§ 33. Comments and expressions of opinion — Common-law rule
and rule in federal courts*
In both civil and criminal cases, an expression of opinion on
a disputed question of fact by the judge in Ms charge is per-
mitted in the federal courts and in a few state courts.
In the federal courts and a few state courts, the trial judge
may comment on the evidence in both civil cases and criminal
prosecutions.23 The expression of the opinion is discretionary
Georgia. An instruction does not
deal with the weight of the evidence
which tells the jury that dying
declarations stand on the same plane
as testimony given under oath. Josey
v. State, 137 Ga 769, 74 SE 282.
Louisiana. State v. Richardson,
175 La 823, 144 S 587.
Missouri. State v. McCanon, 51
Mo 160; State v. Dipley, 242 Mo 461,
147 SW 111; State v. Gore, 292 Mo
173, 237 SW 993; State v. Ouster,
336 Mo 514, 80 SW2d 176. But see
State v. Peak, 292 Mo 249, 237 SW
466.
New Mexico. State v. Wright, 36
NM 74, 8 P2d 443.
Ohio. Martin v. State, 17 OhCir
Ct 406, 9 OhCirDec 621.
1 3 California. People v. Howland,
13 CalApp 363, 109 P 894.
Georgia. But see Samples v. State,
18 GaApp 286, 89 SE 375.
Idaho. State v. Marren, 17 Idaho
766, 107 P 993.
Ohio. Lambert v. State, 10'5 OhSt
219, 136 NE 921.
» a State v. Cox, 55 Idaho 694, 46
P2d 1093.
20 state v. Flory, 203 la 918, 210
NW 961 (and a request to so charge
was properly refused).
2 * Dickey v. State, 15 AlaApp
135, 72 S 608.
22 People v. DeWitt, 233 Mich
222, 206 NW 562.
23 Federal. Quercia v. United
States, 289 US 466, 77 LEd 1321,
53 SupCt 698; United States v.
Murdock, 290 US 389, 78 LEd 381,
54 SupCt 223; Illinois Cent. R. Co.
v. Davidson, 76 F 517; Vanarsdale
v. Hax, 107 F 878; Lesser Cotton Co.
v. St. Louis, I. M. & S. Ry. Co., 114
F 133; Kerr v. Modern Woodmen
of America, 117 F 593; Freese v.
Kemplay, 118 F 428; Perkins v.
United States, 228 F 408; Griggs v.
Nadeau, 250 F 781; McCurley v. Nat.
Sav. & Trust Co., 258 F 154; United
Mine Workers v. Coronado Coal Co.,
258 F 829; Calcutt v. Gerig, 271 F
220, 27 ALR 543; Caudle v. United
States, 278 F 710; Dillon v. United
States, 279 F 639; Simmons Hdw.
Co. v. Southern R. Co., 279 F 929;
Hamilton v. Empire Gas & Fuel Co.,
297 F 422; Armborst v. Cincinnati
Trac. Co., 25 F2d 240.
California. People v. Friend, 50
Cal2d 570, 327 P2d 97.
Connecticut. Appeal of Comstock,
55 Conn 214, 10 A 559; Cook v. M.
Steinert & Sons Co., 69 Conn 91, 36
A 1008; State v. Cabaudo, 83 Conn
160, 76 A 42; McLaughlin v. Thomas,
86 Conn 252, 85 A 370; Appeal of
Wheeler, 91 Conn 388, 100 A 13;
133
INSTRUCTIONS — RULES GOVERNING
110
and the court cannot be required to state it.24 On the other
hand, some courts, perhaps In less careful language, have stated
that it is the duty of the judge to so comment.25
The federal courts may exercise the power to express opinions
on the evidence though the practice is forbidden by the consti-
tution or laws of the state in which the case is tried.26 A state
constitution cannot, any more than a state statute, prohibit the
judges of the courts of the United States from charging juries
with regard to matters of fact.27 The court, in these jurisdictions,
may not only state what the evidence is, but he may go further
in criminal trials and make legitimate comment on it.28
In Michigan it was held not reversible error for the court to
tell the jury that he would be very reluctant to believe the testi-
mony of the defendant as against that of officers.29 It has been
Smith v. Hausdorf, 92 Conn 579,
103 A 939; Di Bernardo v. Connecti-
cut Co., 100 Conn 612, 124 A 231;
Heslin v. Malone, 116 Conn 471, 165
A 594.
Maryland. Snyder v. Cearfoss,
190 Md 151, 57 A2d 786.
Michigan. Blumeno v. Grand
Rapids & I. R. Co., 101 Mich 325,
59 NW 594.
Minnesota. Bonness v. Felsing,
97 Minn 227, 106 NW 909, 114 AmSt
707.
New Jersey. Botta v. Brunner,
42 NJSuper 95, 126 A2d 32; W. A.
Manda, Inc. v. Delaware, L. & W. R.
Co., 87 NJL 327, 98 A 467; Chrisa-
fides v. Brunswick Motor Co., 90
NJL 313, 100 A 196; Fiorentino v.
Farr & Bailey Mfg. Co., 100 NJL
143, 125 A 122; Archer v. Morris
(NJ), 137 A 842; State v. Fuersten,
103 NJL 383, 135 A 894; Jones v.
Lahn, 1 NJ 358, 63 A2d 804.
Pennsylvania. Bonner v. Herrick,
99 Pa 220; Price v. Little, 257 Pa
312, 101 A 645; Commonwealth v.
Lessner, 274 Pa 108, 118 A 24; Dod-
son Coal Co. v. New Boston Land
Co., 276 Pa 452, 119 A 173; Casey
v. Siciliano, 310 Pa 238, 165 A 1;
Thomas v. Mills, 388 Pa 353, 130
A2d 489; Commonwealth v. Romano,
392 Pa 632, 141 A2d 597.
Rhode Island. McHugh v. Wil-
liams & Payton, 43 RI 170, 110 A
607.
Vermont Missisquoi Bank v.
Evarts, 45 Vt 293; Rowell v. Fuller,
59 Vt 688, 10 A 853.
24 Federal. Van Ness v. Pacard,
2 Pet. (27 US) 137, 7 LEd 374;
Breese v. United States, 106 F 680.
Connecticut. Temple v. Gilbert,
86 Conn 335, 85 A 380; Appeal of
Wheeler, 91 Conn 388, 100 A 13.
Pennsylvania. Philadelphia & T.
R. Co. v. Hagan, 47 Pa 244, 86 Am
Dec 541.
Rhode Island. Smith v. Rhode
Island Co., 39 RI 146, 98 A 1.
Vermont. Stevens v. Talcott, 11
Vt 25; Doon v. Ravey, 49 Vt 293.
25 Licker v. J. G. Martin Box Co.,
127 NJL 136, 21 A2d 595; Jones v.
Lahn, 1 NJ 358, 63 A2d 804.
26 Nudd & Noe v. Burrows, 91 US
426, 23 LEd 286; Indianapolis & St.
L. R. Co. v. Horst, 93 US 291, 23
LEd 898; Vicksburg & M. R. Co. v.
Putnam, 118 US 545, 30 LEd 257,
7 SupCt 1; St. Louis, I. M. & S. It
Co. v. Vickers, 122 US 360, 30 LEd
1161, 7 SupCt 1216.
27 St. Louis, I. M. & S. R. Co. v.
Vickers, 122 US 360, 30 LEd 1161,
7 SupCt 1216.
2SVecchio v. United States, 53
F2d 628.
29 People v. Wudarski, 253 Mich
83, 234 NW 157.
Ill
PROVINCE OF COURT AND JURY
§33
held permissible for the trial court to say to the jury in a murder
trial that under the evidence so far as the court could see the
defendant took part in a burglary in which there was a killing
constituting first degree murder, and therefore the defendant
was guilty of first degree murder.30 The court may even go so
far as to state that the accused's contentions are without merit.3 '
And some courts have gone so far as to permit the trial judge to
express his opinion upon the guilt or innocence of the accused.32
The California Supreme Court has surprisingly stated that "It
is also settled that a judge may restrict his comments to por-
tions of the evidence or to the credibility of a single witness and
need not sum up all the testimony, both favorable and unfavor-
able/' Yet in the same case, that court also states that the judge's
comment "should be temperately and fairly made, rather than
being argumentative or contentious to a degree amounting to
partisan advocacy."33
Other courts also state that the judge is not permitted to go
so far as to convert his comment into an argument in favor of
one side or the other.34 The court in commenting on the evidence
30 Commonwealth v. Brue, 284
Pa 294, 131 A 367.
3 * Lewin v. United States, 62 F2d
619.
32 People v. Friend, 50 Cal2d 570,
327 P2d 97; Commonwealth v. Ro-
mano, 392 Pa 632, 141 A2d 597.
In United States v. Notto, 61 F2d
781, it was held that the trial judge
may even advise a conviction of the
defendant as long: as he charges the
jury that they are the judges of
the evidence.
In Murdock v. United States, 62
F2d 926, it was suggested that it is
better practice for the trial judge
not to go so far in his comment
on the case in a criminal prosecu-
tion as to advise a conviction.
33 People v. Friend, 50 Cal2d 570,
327 P2d 97.
3« Yoder v. United States, 71 F2d
85.
In the case of Shea v. United
States, 251 F 440, the trial court,
among other things, charged the
jury as follows: "There is little
chance for dispute here, in the
court's opinion, but that the para-
phernalia employed to impress Hob-
litzel with the thought that he was
in touch with a real 'turf exchange/
so called, where real wagers on the
outcome of real horse races might
be laid, were but the furniture of
this swindle. The large amount
of apparent money was but a simu-
lation, the telegraph and telephone
instruments were but shams in that
neither was a real instrument of
communication; the announcements
and posting of races were shams;
the bookings were tricks. Anyone
who devised this scheme produced
just such a fraudulent device as the
statute condemns." Upon appeal
from a conviction it was contended
that this charge was erroneous, for
the reasons, first, that it instructed
the jury that this so called "turf
exchange" was a sham and a fraud;
and, second, that the charge as a
whole was unduly argumentative in
favor of the prosecution. The court,
however, held that there was no
other reasonable inference to be
drawn from the evidence, and that
"while the charge of the court was
argumentative, in the sense that it
contained a considerable discussion
of the testimony, which was applied
to the various elements of the of-
§33
INSTRUCTIONS — RULES GOVERNING
112
in a criminal case is under the obligation to call attention to
evidence that is favorable to the defendant as well as that which
points toward his guilt.35 There should be no one-sided comment
on the evidence.36
Probably the most oft-repeated limitation on the judge's
privilege to comment on the evidence is that he must make it
clear to the jury that it is their recollection of the testimony that
controls and that they are the final deciders of the issues of fact.37
f ense charged, we are not impressed
that it was unduly so, or that it
went beyond the limitations upon
the trial judge's right to comment
as previously expressed in this para-
graph/7
See People v. Carlsonakas, 241
AppDiv 232, 272 NYS 35; People v.
Thomas, 240 AppDiv 101, 269 NYS
143.
35 Hunter v. United States, 62
F2d 217.
36 Young v. Travelers Ins. Co.,
68 F2d 83, revg. 2 FSupp 624.
37 Federal. Simmons v. United
States, 142 US 148, 35 LEd 968, 12
SupCt 171; Doyle v. Union Pacific
R. Co., 147 US 413, 37 LEd 223, 13
SupCt 333; Allis v. United States,
155 US 117, 39 LEd 91, 15 SupCt
36.
In the courts of the United States,
as in those of England, from which
our practice was derived, the judge,
in submitting a case to the jury,
may, at his discretion, whenever
he thinks it necessary to assist
them in arriving at a just con-
clusion, comment upon the evidence,
call their attention to parts of it
which he thinks important, and ex-
press his opinion upon the facts; and
the expression of such an opinion,
when no rule of law is incorrectly
stated, and all matters of fact are
ultimately submitted to the deter-
mination of the jury, cannot be
reviewed on writ of error. Vicks-
burg & M. R. Co. v. Putnam, 118
US 545, 30 LEd 257, 7 SupCt 1.
It was not error for the trial
court in the charge to express an
opinion relative to plaintiff's failure
to produce a certain witness, where
the jury was given to understand
that it was not bound by such
opinion. The jury was sufficiently
advised in this regard. The com-
ments criticized did not trench upon
the province of the jury, or go be-
yond the limits of reasonable ex-
pression of opinion. Young v. Cor-
rigan, 210 F 442.
In Calcutt v. Gerig, 271 F 220,
27 ALR 543, the court said to the
jury preliminarily: "Only for the
purpose of suggesting to you the
method of consideration, I shall call
your attention to the facts in evi-
dence, and if I should omit any you
will remember them and act upon
them, or if I should not correctly
repeat the evidence then you will
understand that I am mistaken about
it, and act upon your own recollec-
tion." In this case the court charged
the jury several times that the jury,
and not the court, were the triers
of the facts. In one place in the
charge the court said: "You are
the exclusive judges of the credi-
bility of the witnesses and the
weight of the evidence." And again:
"Then it comes to you upon a ques-
tion of fact, and you must deter-
mine the rights of these parties
upon the evidence." And again:
"There is no evidence, as I recall,
but you will remember how that is."
It was held that from such expres-
sions the court left the jury free
to exercise its own judgment as to
the facts.
See McLanahan v. Universal Ins.
Co., 1 Pet. (26 US) 170, 7 LEd 98.
California. People v. Friend, 50
Cal2d 570, 327 P2d 97.
Maryland. Snyder v. Cearfoss,
190 Md 151, 57 A2d 786.
113 PROVINCE OF COURT AND JURY § 34
More general limitations have been made. His discretion is
not arbitrary and uncontrolled, but judicial, to be exercised in
conformity with the standards governing the judicial office.38
While the judge may anaylze and dissect the evidence, he may
not distort it or add to it ; it is the duty of the federal trial judge
in commenting upon the evidence to use great care that his
expression of opinion thereon should be given as not to mislead,
and especially as not to be one-sided, studiously to avoid deduc-
tions and theories unwarranted by the evidence and not to render
vain by hostile comment the privilege of the accused to testify
in his own behalf. Hence the remarks of a federal trial judge in
charging the jury in a criminal case on the fact that defendant
while testifying wiped his hands, that such action is almost
always an indication of lying, is prejudicial error and is not
cured by adding that the opinion so expressed is not binding on
the jury and that if they do not agree with it, they should find
the defendant not guilty.39
Generally, however, the fact that the opinion of the court is
erroneous is held not ground for reversal where the jury have
been distinctly told that the opinion of the court has no binding
force and they are at full liberty to disregard it.40
§ 34. Weight of admissions of parties.
The weight to be accorded the admissions of the parties be-
longs exclusively to the jury.
The word "admissions," as used in this connection, may be
defined as concessions or acknowledgments by a party, of the
existence or truth of certain facts. They are those statements
which would otherwise be hearsay.
It is the exclusive province of the jury to pass on the weight
of the admissions of the parties.41 An admission of a party is
simply a part of the evidence and is to be taken by the jury
for what it may be worth, as the facts and circumstances may
warrant.42 Hence it is not error to refuse to instruct that "while
New Jersey. Jones v. Lahn, 1 39 Quercia v. United States, 289
NJ 358, 63 A2d 804; Botta v. Bran- US 466, 77 LEd 1321, 53 SupCt 698.
ner, 42 NJSuper 95, 126 A2d 32. 4O Oyster v. Longnecker, 16 Pa
Pennsylvania. Thomas v. Mills, 269; Knapp v. Griffin, 140 Pa 604, 21
388 Pa 353, 130 A2d 489; Bizich v. A 449; Commonwealth v. Elliott, 292
Sears, Roebuck & Co., 391 Pa 640, Pa 16, 140 A 537.
139 A2d 663; Commonwealth v. Ro- 4I Rumrlll v. Ash, 169 Mass 341,
mano, 392 Pa 632, 141 A2d 597; Fill- 47 NE 1017; Blume v. Chicago, M.
forth v. Prudential Ins. Co., 147 Pa & St. P. R. Co., 133 Minn 348, 158
SuperCt 516, 24 A2d 749. NW 418, AnnCas 1918D, 297 (court
38 Snyder v. Cearfoss, 190 Md should not disparage effect).
151, 57 A2d 786. 42 Arkansas. Gish v. Scantland,
151 Ark 594, 237 SW 98.
INSTRUCTIONS — RULES GOVERNING
114
proof of the fact that admissions were made, and of the terms
in which they were made, ought to be cautiously scanned, yet
when deliberately made and precisely identified, they are usually
received as satisfactory" and that "admissions by parties are not
to be regarded as an inferior kind of evidence — on the contrary,
when satisfactorily proved they constitute a ground of belief on
which the mind reposes with strong confidence."43
Statements in the nature of admissions, which are also admis-
sible as part of the res gestae, may not be disparaged by the
court's instruction.44 The evidence of the admissions of the nature
of res gestae statements should be scanned with care and the
jury should be cautioned to give them no more meaning than
they are entitled to.45
In some of the states, cautionary instructions as to alleged
admissions have been approved when limited to testimony of
verbal admissions.46 Where allegations of a petition were stricken
California. Fawkes v. Reynolds,
190 Cal 204, 211 P 449,* People v.
Wagner, 29 CalApp 363, 155 P 649.
Georgia. Phoenix Ins. Co. v. Gray,
113 Ga 424, 38 SE 992.
Indiana. It is error to caution
jury to scrutinize admissions very
closely, because they are to be con-
sidered by the jury as other evi-
dence properly admitted in the case.
Reitemeier v. Linard (IndApp), 150
NE 797.
Washington. Marton v. Pickrell,
112 Wash 117, 191 P 1101, 17 ALE
68. In this case an instruction was
given which advised the jury that
if the plaintiff had made any ad-
missions indicating that the collision
which was the basis of the action
was due to his own fault, such ad-
missions must be considered in the
light of all the circumstances sur-
rounding- him when he made them,
and that they would be binding upon
him only in case he was then fully
advised as to all of the facts, and
as to the law applicable thereto.
On appeal, this instruction was held
correct in submitting the fact-issue
as to plaintiff's alleged admissions
to the jury; and while it was noticed
that the court should not have ap-
pended the statements concerning the
necessity of plaintiff's being advised
as to the law at the time he made
the alleged admissions, such did not
apparently mislead the jury.
Wyoming. Verbal statements of
witnesses are not regarded as ad-
missions. Hoge v. George, 27 Wyo
423, 200 P 96, 18 ALR 469.
43 Phoenix Ins. Co. v. Gray, 113
Ga 424, 38 SE 992.
44 Dixon v. Russell, 156 Wis 161,
145 NW 761; John v. Pierce, 172
Wis 44, 178 NW 297.
45 Georgia. Wallace v. Mize, 153
Ga 374, 112 SE 724; Pitts v. Rape,
25 GaApp 722, 104 SE 643.
Iowa. Cawley v. Peoples Gas &
Elec. Co., 193 la 536, 187 NW 591.
South Dakota. But see Chresten-
son v. Harms, 38 SD 360, 161 NW
343.
Washington. Allison v. Bartelt,
121 Wash 418, 209 P 863,
Wisconsin. John v. Pierce, 172
Wis 44, 178 NW 297.
46 Georgia. Raleigh & G. R. Co, v.
Allen, 106 Ga 572, 32 SE 622.
Iowa. Martin v. Algona, 40 la
390; State v. Jackson, 103 la 702,
73 NW 467.
Minnesota. Blume v. Chicago, M.
& St. P. R. Co., 133 Minn 348, 158
NW 418, AnnCas 1918D 297.
Oregon. Gleason v. Benson, 65 Or
199, 132i P 530.
South Dakota. Chrestenson v.
Harms, 38 SD 360, 161 NW 343.
115
PROVINCE OF COURT AND JURY
• 34
by an amendment, and at the trial the defendant introduced the
allegations so stricken on the claim that they were admissions
made by the plaintiff, instructions to receive admissions with
caution and to determine what kind of admissions, if any,
were made, were approved.47 And so the court may refuse to
instruct that particular admissions may be regarded as strong
evidence.48 The admission is admissible only against the party
making it and not against his codefendants and this limitation
should be set out in the charge.49
The rule that the weight and probative effect of admissions
is for the jury has like application in criminal prosecutions.50
An instruction in a criminal prosecution was proper which told
the jury that while each defendant was entitled to what he
might have said for himself, if true, the state was entitled to
anything he said against himself,51
Wisconsin. Haven v. Markstrum,
67 Wis 493, 30 NW 720.
47 Elliott v. Marshall, 179 Ga 639,
176 SE 770.
48Earp v. Edgington, 107 Tens
23, 64 SW 40.
49 Holt v. Williams, 210 MoApp
470, 240 SW 864.
50 California. People v. Selby,
198 Cal 426, 245 ? 426.
Idaho. State v. Fleming, 17 Idaho
471, 106 P 305.
Illinois. People v. Allen, 279 111
150, 116 NE 625; People v. Sovetsky,
323 111 133, 153 NE 615, holding that
if the statement of the accused ad-
mitted in evidence did not constitute
a confession of guilt, but merely an
admission, it was error to instruct
the jury that the defendant could
be found guilty if he had truly and
voluntarily confessed guilt.
Missouri. It is erroneous to in-
struct that if the jury find that any
statements of the defendant have
been proved by the state and not
denied by the defendant, they are
to be taken as admitted to be true,
for such a charge is equivalent to
a charge that defendant must speci-
fically deny every statement attri-
buted to him. State v. Hollings-
worth, 156 Mo 178, 56 SW 1087.
Montana. In State v. Louie Won,
76 Mont 509, 248 P 201, an instruc-
tion was held proper which told the
jury that where accusatory state-
ments against the accused are made
in Ms presence and not denied by
him, their probative force is not
great and they should be received
with caution.
Nebraska. In Bourne v. State, 116
Neb 141, 216 NW 173, it was held
error to refuse to caution the jury
against verbal admissions.
South Carolina. State v. Shorter,
85 SC 170, 67 SE 131.
51 State v. Wansong, 271 Mo 50,
195 SW 999.
If a confession of the accused
introduced in evidence contains ex-
culpatory statements, the Texas
court has ruled that it is incumbent
upon the court to tell the jury that
such statements are to be regarded
as true unless disproved by the
state. McKinley v. State, 104 TexCr
65, 282 SW 600.
INSTRUCTIONS — RULES GOVERNING
116
§ 35. Weight of expert testimony.
Expert testimony, when admissible at all, must go to the jury
like any other testimony in the case without discrimination by
the court as to its weight.
The weight to be given to expert testimony is a question to
be determined by the jury, and there is no rule of law which
requires them to surrender their own judgment, or to give a
controlling influence to the opinion of expert witnesses. The jury
is at liberty to exercise an independent judgment. In other words,
the testimony of experts is not necessarily controlling on the
jury. Although the court determines in the first instance whether
a witness is competent to testify as an expert, the jury may
consider it along with other testimony and arrive at their inde-
pendent judgment on the facts even though it would be in con-
flict with the opinion of the experts.52
Whether expert evidence is strong or weak depends upon the
skill and character of the witness, his opportunities for acquiring
information and all the attendant facts and circumstances of the
case. Great or little importance may be attached to it and the
jury have the right to determine its value without any influencing
instruction.53 But in some jurisdictions the trial court is per-
52 California. In re Hess' Estate,
183 Cal 589, 192 P 35.
Georgia. Wall v. State, 112 Ga
336, 37 SE 371; Crump v. Knox, 18
GaApp 437, 89 SE 586.
Indiana. Eggers v. Eggers, 57
Ind 461; Indianapolis Trac. & Termi-
nal Co. v. Peeler, 69 IndApp 645,
122 NE 600.
Iowa. Ingwersen v. Carr, 180 la
988, 164 NW 217; In re Byrne's
Will, 186 la 345, 172 NW 655 (in-
sanity of testator).
Kansas. Burns v. Clark, 105 Kan
454, 185 P 27; State v. McAlister,
139 Kan 672, 33 P2d 314.
Mississippi. Coleman v. Adair, 75
Miss 660, 23 S 369. But see Rem-
fry v. Mut. Life Ins. Co. (MoApp),
196 SW 775.
Missouri. Chillicothe Trust Co. v.
French, 211 MoApp 214, 241 SW
984.
New York. People v. Soper, 243
NY 320, 153 NE 433.
North Carolina. Hedgepeth v.
Coleman, 183 NC 309, 111 SE 517,
24 ALR 232 (typewritten will);
State v. Combs, 200 NC 671, 158
SE 252.
Ohio. Ross v. Stewart, 15 OhApp
339, 32 OhCtApp 217; Vey v. State,
35 OhApp 324, 172 NE 434, 31 OLR
135.
Pennsylvania. Commonwealth v.
Cavalier, 284 Pa 311, 131 A 229.
South Carolina. State v. Bram-
lett, 114 SC 389, 103 SE 755.
Texas. The court had the right
to admit in evidence the testimony
of a witness that a liquid was whis-
ky, which opinion was based on its
odor, but the weight of the testi-
mony when given was for the con-
sideration of the jury. Kellum v.
State, 102 TexCr 537, 278 SW 434.
Washington. Nelson v. McLellan,
31 Wash 208, 71 P 747, 60 LRA
793, 96 AmSt 902; State v. Owens,
167 Wash 283, 9 P2d 90 (testimony
of handwriting expert).
Wisconsin. Carver v. State, 190
Wis 234, 208 NW 874; Anderson v.
Eggert, 234 Wis 348, 291 NW 365.
53 Mississippi. Coleman v. Adair,
75 Miss 660, 23 S 369.
117 PROVINCE OF COURT AND JURY § 35
mitted to tell the jury that they are to receive and act upon
expert testimony with caution or, under some circumstances,
with great caution.54
It is error for the court to invade their province in this con-
nection to the extent of saying to them that the opinions of the
experts were advisory only and not binding on the jury.55 Con-
sequently, the court acts prejudicially in instructing that the
testimony of experts is usually of very little value in determining
the sanity or insanity of a party and that their opinions are not
so highly regarded now as formerly,56 or that the testimony of
experts is not as good evidence of a fact as the testimony of a
credible witness or witnesses who testify to having seen the fact
itself occur.57 Where physicians have testified as to the sterility
of the accused in a rape case, it is error for the court to charge
the jury that the opinions of the experts are advisory only and
that the jury are to use their own judgment in passing on the
matters to which the experts testified.58
It is error to tell the jury that the testimony of experts is all
opinion, and that they are not bound by it.59 It is therefore error
to instruct that "while the opinion of an expert is competent to
go to the jury on an issue involving the genuineness of a written
instrument, yet such evidence is intrinsically weak and ought
Missouri. Brees v. Chicago, R. I. speculation, beset with pitfalls and
6 P. R. Co. (Mo), 4 SW2d 426. uncertainties, and requires patient
Washington. State v. Brunn, 144 and intelligent investigation to reach
Wash 341, 258 F 13, for opinion on the truth, was erroneous as dis-
petition for rehearing, see 145 Wash criminating too strongly against
435, 260 P 990. such class of evidence in warning
West Virginia. See also Brown- the jury that they "must not be
ing v. Hoffman, 90 WVa 568, 111 misled or confused by expert testi-
SE 492. mony," and also in charging, in re-
54 State v. Miller, 13 OhCirCt 67, spect of all of the expert testimony
7 OhCirDec 553; Union Trac. Co. v. in the case, that it must be received
Anderson, 146 Tenn 476, 242 SW with "great caution." See United
876, 25 ALR 1496. States v. Pendergast, 32 F 198; Per-
In Fisher v. Travelers Ins. Co., sons v, State, 90 Tenn 291, 16 SW
124 Tenn 450, 138 SW 316, AnnCas 726; Atkins v. State, 119 Tenn 458,
1912D, 1246, it was held that a 105 SW 353, 13 LRA (N. S.) 1031.
charge instructing the jury that they ss Zeikle v. St. Paul & K. C. S. L.
must receive and consider expert R. Co. (MoApp), 71 SW2d 154.
testimony with great caution, that 56Eggers v. Eggers, 57 Ind 461.
they must make a careful and pains- S7 Nelson v. McLellan, 31 Wash
taking investigation of all the facts, 208, 71 P 747, 60 LRA 793, 96 AmSt
with a view of reaching the truth, 902.
and must not be misled or confused 5S State v. Mundy (Mo), 76 SW2d
by expert testimony, because, while 1088.
such testimony is sometimes the 59 Spencer v. Quincy 0. & K. C.
only means or the best way to reach R. Co. (Mo), 297 SW 353,
the truth, yet it is largely a field of
§ 36 INSTRUCTIONS — RULES GOVERNING 118
to be received and weighed by the jury with great caution/'60
or that "it is your own opinion upon the matter, and the con-
clusions you draw from the facts proven, that should determine
your verdict, and not what any other person says or thinks."61
In a case where experts have testified as to a testator's mental
capacity, it is error for the court to say to the jury that the
attending physician's testimony was worth more than that of
the experts.62 But it was held that expert testimony was not
disparaged by an instruction explaining for what reason the
conclusions or opinions of experts are received and pointing out
the distinction between the testimony of such witnesses and
other witnesses whose testimony is received only as to facts and
not as to opinions and conclusions,63
The premises on which the hypothetical question is based
must be established by a preponderance of the evidence and the
jury may be told to disregard the expert testimony where they
are satisfied that these premises are untrue.64
§ 36. Weight of circumstantial and negative evidence.
The question of the comparative weight (1) of direct and
circumstantial evidence, (2) or of positive and negative evidence,
is for the jury and the court may not infringe on this prerogative
by expressions of opinion on comparative weight.
(1) Circumstantial evidence, in a given case, may be of more
or less weight than direct evidence, depending upon the facts
in the particular instance, and it is for the jury to determine
the comparative value of the two after considering all the
facts.65
60 Federal. Perkins v. United due influence that direct proof is
States, 228 F 408. not required, but only evidence of
Minnesota. State v. Mohrbacher, circumstances from which undue in-
173 Minn 567, 218 NW 112. fluence and fraud may be inferred.
Mississippi. Coleman v. Adair, 75 Morris v. Collins, 127 Ark 68, 191
Miss 660, 23 S 369. SW 963.
61 Ball v. Eardesty, 38 Kan 540, Delaware. Director General of
16 P 808. Railroads v. Johnston, 1 WWHarr.
6* Blakely v. Cabelka, 203 la 5, (31 Del) 397, 114 A 759.
212 NW 348. Georgia. Hudson v. Best, 104 Ga
63 Penhansky v. Drake Realty 131, 30 SE 688; Armstrong v. Penn,
Constr. Co., 109 Neb 120, 190 NW 105 Ga 229, 31 SE 158; Pelham
265. Phosphate Co. v. Daniels, 21 GaApp
64 Hallawell v. Union Oil Co., 36 547, 94 SE 846.
CalApp 672, 173 P 177; Haas v. Illinois. People v. Hart, 323 111
Kundtz, 94 Oh 238, 113 NE 826. 61, 153 NE 705.
65 Arkansas. Cloar v. Consumers Kentucky. Whitehead v. Common-
Compress Co., 150 Ark 419, 234 SW wealth, 192 Ky 428, 233 SW 890.
272. Michigan. Wolf v. Providence
The rule was not violated in a Wash. Ins. Co., 333 Mich 333, 53
will contest by an instruction on un- NW2d 475.
119
PROVINCE OF COURT AND JURY
§36
The rule is the same in criminal cases.66 Accordingly, a charge
that "circumstantial evidence is just as good and just as con-
vincing and just as reliable as direct and positive evidence, when
properly linked together," is a prejudicial determination of the
question by the court67 But an instruction has been held un-
objectionable which told the jury that circumstantial evidence
was just as good as positive evidence.68 And the statement has
been approved that the law does not distinguish between cir-
cumstantial and direct evidence.69 Where the evidence on an
issue is wholly circumstantial it is not an invasion to state the
fact that the evidence is circumstantial.70
(2) It is a trespass upon the rights of the jury to instruct,
unqualifiedly, that positive testimony is entitled to greater weight
than negative, as the jury may properly attach more importance
to either one, as the facts adduced may seem to justify.7 f
South Carolina. State v. Herron,
116 SC 282, 108 SE 93.
Texas. San Antonio & A. P. R.
Co. v. McGill (TexCivApp), 202 SW
338; Rounds v. Coleman (TexCiv-
App), 214 SW 496.
Virginia. Denis v. Commonwealth,
144 Va 559, 131 SE 131. See also
§ 64, infra.
66 Arkansas. McAlister v. State,
99 Ark 604, 139 SW 684.
Kentucky. Brady v. Common-
wealth, 74 Ky (11 Bush) 282.
Mississippi. The court should not
charge that circumstantial evidence
is legal and competent evidence as
the jury has no concern with the
competency or legality of the evi-
dence submitted by the court. Wil-
liams v. State, 95 Miss 671, 49 S 513.
Nebraska. It is not prejudicial
for the court to charge that the evi-
dence before the jury is both direct
and circumstantial. Davis v. State,
51 Neb 301, 70 NW 984.
Ohio. Lambert v. State, 105 OhSt
219, 136 NE 921; Doe v. State, 14
OhApp 178.
Oklahoma. Cook v. State, 9 Okl
Cr 509, 132 P 507.
South Carolina. State v. Aught-
rey, 49 SC 285, 26 SE 619, 27 SE
199; State v. Johnson, 66 SC 23, 44
SE 58.
Texas. Limbrick v. State, 117
TexCr 578, 36 SW2d 1026.
A charge that the possession of
recently stolen property may be
proved by circumstantial evidence is
not on the weight of the evidence.
Suggs v. State, 65 TexCr 67, 143
SW 186.
Wisconsin. Schwantes v. State,
127 Wis 160, 106 NW 237.
67 Hudson v. Best, 104 Ga 131, 30
SE 688.
6s State v. Wright, 140 SC 363,
138 SE 828.
69 People v. Wysong, 86 CalApp
329, 260 P 825.
70 Wolf v. State, 198 Ind 261, 151
NE 731; Orris v. Chicago, R. I. &
P. R. Co., 279 Mo 1, 214 SW 124.
71 Florida. Sumpter v. State, 45
Fla 106, 33 S 981.
Georgia. Cowart v. State, 120 Ga
510, 48 SE 198.
Missouri. State v. Kansas City,
Ft. S. & M. R. Co., 70 MoApp 634;
Milligan v. Chicago, B. & Q. R. Co.,
79 MoApp 393.
Ohio. State v. Davies, 101 OhSt
487, 129 NE 590; Cleveland, C., C.
& St. L. R. Co. v. Richerson, 19
OhCirCt 385, 10 OhCirDec 326; Cin-
cinnati Trac. Co. v. Harrison, 24 Oh
CirCt (N. S.) 1, 34 OhCirDec 435.
But see Kazdan v. Stein, 118 OhSt
217, 160 NE 704.
Utah. It is erroneous to instruct
that "positive testimony of credible
witnesses who were in a situation to
§ 36 INSTRUCTIONS — RULES GOVERNING 120
Where there is evidence both positive and negative as to
the character of the accused, the weight of all the evidence
is for the jury.72 Thus, while it is ordinarily true, in point of
fact, that positive testimony is stronger than negative, yet it
can not be said, as a matter of law, that positive necessarily
overbalances negative testimony. Whether it does so must depend
upon the particular circumstances.73 Consequently, the trial court
acts rightly in refusing to instruct that "it is the duty of the
jury, in passing upon the weight and effect to be given by them
to the evidence in the cause, to give to testimony of a positive
or affirmative character greater weight than to that simply of a
negative character, provided the witnesses testifying affirma-
tively to a given fact are not shown to be unworthy of belief
by other facts and circumstances in the case."74 So, courts prop-
erly refuse to discriminate in favor of evidence of one character,
as the refusal of an instruction that testimony that lights at a
railroad crossing were flashing carried more weight than testi-
mony that the lights were out.75 But testimony that the witness
did not hear the bell of an engine will not raise an issue with
positive testimony of all the trainmen and disinterested witnesses
that the signal was given.76 In a damage action no error was
found in an instruction that the jury was warranted in con-
cluding that no signal was given prior to the accident if they
believed the witnesses who testified that they heard no such
signal.77
Where the witnesses testifying positively and negatively are
of equal credibility and have an equal means of information as
to a fact in controversy, it cannot be said that the positive
testimony should receive greater weight than the negative.78
And it is error to charge that "the existence of a fact testified
to by one positive witness is to be believed rather than such fact
did not exist because many witnesses who had the same oppor-
know whether the whistle was blown 74 State v. Kansas City, Ft. S. &
or the bell rung, to the effect that M. R. Co., 70 MoApp 634.
the whistle was blown and the bell 7S Baltimore & 0. R. Co. v. Hawke
rung, is of a higher character than (Del), 143 A 27.
the negative testimony of witnesses 76 Sutton v, Chicago, St. P., M.
that they did not hear the whistle & 0. R. Co,, 98 Wis 157, 73 NW 993;
blown or the bell rung." Haun v. Jordan v. Osborne, 147 Wis 623, 133
Rio Grande Western R. Co., 22 Utah NW 32; Linden v. Minneapolis, St.
346, 62 P 908. P. & S. S. M. R. Co., 156 Wis 527,
72 Henry Woo v. United States, 143 NW 167.
73 F2d 897. 77 Lindsey v. Pacific Elec. R. Co.,
73 State v. Kansas City, Ft. S. & 111 CalApp 482, 296 P 131.
M. R. Co., 70 MoApp 634. 7« Milligan v. Chicago, B. & Q. R.
Co., 79 MoApp 393.
121
PROVINCE OF COURT AND JURY
§37
tunity of observation swore they did not see or know of its
having transpired/'79
§ 37. Credibility of witnesses for jury.
The credibility of witnesses and the probability of their testi-
mony are questions for the jury.
The credibility of witnesses is for the jury and this function
may not be infringed by instructions which disparage the testi-
mony of witnesses or which minimize its value. ao There are
occasions when the question of a witness' testimony is taken
away from the jury; for example, if the testimony is entirely
79 Southern R. Co. v. O'Bryan,
115 Ga 659, 42 SE 42.
80 Alabama. Brown v. Mobile
Elec. Co., 207 Ala 61, 91 S 802;
Southern R. Co. v. Ellis, 6 AlaApp
441, 60 S 407.
Arkansas. Buffalo Zinc & Copper
Co. v. McCarty, 125 Ark 582, 189
SW 355.
Connecticut. Sullivan v. Nesbit,
97 Conn 474, 117 A 502.
Georgia. It is reversible error to
instruct that where the witnesses
agree as to material facts, slight
discrepancies as to collateral facts
do not authorize their testimony to
be discredited. Pace v. Cochran, 144
Ga 261, 86 SE 934.
Illinois. Lundquist v. Chicago R.
Co., 305 111 106, 137 NE 92.
The jury is not bound to take the
testimony of any witness as abso-
lutely true. Brant v. Chicago & A.
R. Co., 294 111 606, 128 NE 732.
The court should not instruct the
jury to disregard the testimony of
a witness who has exaggerated the
amount of damages sustained. J. F.
Humphreys & Co. v. Bloomington,
246 IHApp 334.
Iowa. Connelly v. Greenfield Sav.
Bank, 192 la 876, 185 NW 887.
Massachusetts. Cahalane v.
Proust, 333 Mass 689, 132 NE2d
660.
Michigan. Reed v. McCready, 170
Mich 532, 136 NW 488; Wolf v.
Providence Washington Ins. Co. of
Providence, R. I., 333 Mich 333, 53
NW2d 475.
New Hampshire. Holman v. Bos-
ton & M. R. R., 76 NH 496, 84 A
979.
New York. It is error to charge
in a case where no evidence was
produced by defendant, and plain-
tiff's evidence was sufficient to re-
quire defendant to sustain his de-
nials by evidence, that the jury
might disregard the testimony of
any witness, even though uncon-
tradicted, Gnichtel v. Stone, 233
NY 465, 135 NE 852.
The trial court is unwarranted in
telling the jury that if false testi-
mony had been given on both sides
and it was evenly balanced they
should return a verdict for the de-
fendant. Macchia v. Marsigliano,
126 Misc 342, 215 NYS 170.
North Carolina. Taylor v. Mead-
ows, 182 NC 266, 108 SE 755; Mod-
lin v. Garrett & Lawrence, 183 NC
122, 110 SE 778.
North Dakota. Reuter v. Olson,
79 ND 834, 59 NW2d 830.
Ohio. State v. Tuttle, 67 OhSt
440, 66 NE 524, 93 AmSt 689;
Tanzi v. N. Y. Central R. Co., 155
OhSt 149, 98 NE2d 39, 24 ALR2d
1151; Cincinnati Trac. Co. v. Lied,
9 OhApp 156, 29 OhCtApp 136;
Henderson v. Wertheimer, 12 Oh
App 249; Byrnes v. Hewston, 13 Oh
App 13, 31 OhCtApp 414; Sandoffsky
v. State, 29 OhApp 419, 163 NE
634.
Pennsylvania. Steffenson v. Le-
high Valley Transit Co., &61 Pa 317,
64 A2d 785.
South Dakota. State v. Lutheran,
76 SD 5G1, 82 NW2d 507.
§37
INSTRUCTIONS — RULES GOVERNING
122
unworthy of belief and clearly erroneous,81 or the testimony is
incredible as a matter of law.82
Erroneous instructions. The rule is violated where the court
indicates a lack of confidence in the testimony of a particular
witness or intimates that it does not believe him,83 or where the
jury are told that a witness has been impeached,84 or not im-
peached,83 or that the jury are not required to believe incredible
testimony,86 or that they may reject the testimony of a witness
if they believe he has been impeached,87 or that they may give
consideration to the fact that a witness is a party to the suit,88
or that they "should" take into consideration the intelligence
of the several witnesses,89 or that they "should" apply the maxim
"falsus in uno, falsus in omnibus,"90 or that they "must" reject
the testimony of a witness who has testified falsely to any mate-
rial fact,91 or that if any individual juror believes a witness had
testified falsely the jury may reject all or a part of the testimony
of such witness,92 or that they may consider the general reputa-
tion of the witness for truth and veracity, chastity and morality
as shown by the evidence,93 or that they should consider the
81 Homano v. Littleton Const. Co.,
95 NH 404, 64 A2d 695.
82 People v. White, 2 NY2d 220,
159 NYS2d 168, 140 NE2d 258.
83 Williams v. West Bay City, 119
Mich 395, 78 NW 328; William J.
Burns International Detective Agen-
cy v. Powers, 176 AppDiv 114, 162
NTS 578.
It is prejudicial error for the court
unreasonably to dwell on the propo-
sition that one witness may be con-
tradicted by several and yet be
believed. Among other things, the
court told the jury in one case: "If
five or six men should come on the
stand and swear that the moon was
made of green cheese, and one
should swear that it wasn't, you
wouldn't be compelled to believe it.
If a dozen men should come upon
the stand and swear that the sun
rose in the west, instead of the east,
you wouldn't be called on to believe
it." In the particular ease, the testi-
mony of one witness for the plain-
tiff was contradicted by several for
the defendant, and the charge of
the court was held erroneous. Lend-
berg- v. Brotherton Iron Min. Co.,
75 Mich 84, 42 NW 675.
84 Huntingburg v. First, 22 Ind
App 66, 53 NE 246.
83 Berliner v. Travelers Ins. Co.,
121 Cal 451, 53 P 922; Watkins
v. Bowyer, 42 SD 189, 173 NW 745.
86 Virginia R. & Power Co. v.
Hill, 120 Va 397, 91 SE 194.
87 Kornazsewska v. West Chicago
St. B. Co., 76 IllApp 366.
No matter how thoroughly a wit-
ness may be impeached, his credi-
bility is for the jury, and it is im-
proper to charge them to disregard
his testimony, if reasonably satisfied
that he has been successfully im-
peached. Lay v. Fuller, 178 Ala
375, 59 S 609.
88 Copeland v. American Cent.
Ins. Co., 158 MoApp 338, 138 SW
557.
89 Pennsylvania Co. v. Hunsley,
23 IndApp 37, 54 NE 1071.
90 Potter v. Pennsylvania R. Co.,
113 NJL 441, 174 A 734. See §§ 71
and 72, infra.
9 1 Coral Gables v. Blount, 116 Fla
356, 156 S 244, 157 S 925.
92 Hoge v. Soissons, 48 OhApp
221, 192 NE 860.
93 Beck v. Metropolitan Life Ins.
Co. (MoApp), 207 SW 248.
123 PROVINCE OF COURT AND JURY § 37
bias and prejudice of certain named witnesses,94 or that greater
weight is to be attached to the testimony of witnesses whose
means of information is superior,95 or that a party producing a
witness vouches for his veracity,96 or that a single statement
made by a witness may be regarded as a mistake, and that full
credence may be given to his testimony in other respects,97 or,
while bias or ill will are always factors to be taken into account
by the jury, to instruct that but little weight should be given to
the veracity of a witness because of his ill will,9S or to charge
that it is the duty of the jury "to believe that witness who has
the least inducement to swear falsely and the best means of
knowing the facts about which he testifies,"99 or that the law
presumes an unimpeached witness has spoken the truth, [ or that,
where a witness is unimpeached, the jury should not allow re-
marks of counsel in assailing the witness to influence them ;2 or
for the court to say to the jury that the impeachment of a wit-
ness is partial.3
In a damage action where plaintiff claimed in her unverified
complaint and her bill of particulars that she had fractured her
leg, but there was no claim in an amended verified complaint or
on the trial that she had so fractured her leg, it was error to
instruct the jury that the claim first set up in the unverified com-
plaint and bill of particulars was false.4 It is error to instruct
that the quality of the evidence is to be considered as well as the
number of witnesses, since the word "quality" may imply better
evidence and it is for the jury to say whether the evidence of
the greater number or the minority is to be treated as better
evidence.5 In an action on a note it is improper for the jury to
be charged that if the testimony of a certain witness is in line
with a writing in evidence the witness was truthful.6
94 Scholl v. Sterkel, 46 OhApp some witnesses. Tippecanoe Loan &
389, 189 NE 15, 40 OLE 9. Trust Co. v. Jester, 180 Ind 357, 101
95 Winklebleck v. Winklebleck, NE 915, LRA 1915E, 721.
160 Ind 570, 67 NE 451. " Hudson v. Best, 104 Ga 131, 30
96 Gates v. Glover, 228 Ala 656, SE 688. See also Keen v. Crosby,
154 S 786; Folsom-Morris Coal Min. 25 GaApp 595, 103 SE 850.
Co. v. Dillon, 65 Okl 22, 162 P 696. f Chicago Union Trac. Co. v.
97 Citizens St. R. Co. v. Burke, 98 O'Brien, 219 111 303, 76 NE 341.
Tenn 650, 40 SW 1085. 2 Chicago Union Trac. Co. v.
98 Noiwood v. State, 118 Ala 134, O'Brien, 219 111 303, 76 NE 341.
24 S 53. 3 Elniendorf v. Ross, 221 AppDiv
An instruction that the jury must 376, 222 NYS 737.
take into consideration the interest, 4 Toorock v. Delevan Smelting &
appearance, bias or prejudice, of Ref. Works, Inc., 242 AppDiv 705,
witnesses if any shown, is calculated 272 NYS 891.
to unduly impiess on the jury that s Gilmore v. Seattle & R. R. Co.,
the judge has in mind some sus- 29 Wash 150, 69 P 743.
picion regarding the testimony of 6 Dunlap v. Dennison Lbr. Co.,
27 OhApp 412, 160 NE 873.
;87
INSTRUCTIONS — RULES GOVERNING
124
Proper instructions. An instruction is free from objection
which merely tells the jury they are at liberty to withhold
credence where they believe the witness was in error or has not
spoken the truth;7 or which tells the jury that depositions read
in evidence should be given the same weight as if the absent
witnesses were present;8 or which states that the jury need not
lay aside their general knowledge which comes from the common
experience of mankind;9 or which informs the jury that the
uncontradicted testimony of an unimpeached witness is not to
be ignored;10 or which points out fairly and impartially the
intrinsic probability or improbability of testimony, leaving the
jury to determine the question of credibility;11 or which tells
the jury that the probative effect of hospital clinical reports is
solely for the determination of the jury;12 or which tells the
jury that "a person's reputation for truth is made by what
his neighbors generally say of him in this regard — if they gen-
erally say he is untruthful, that makes his general reputation
for truth bad; on the other hand, if they say nothing whatever
about him as to his truthfulness, that is evidence that his general
7 Alabama. Benefit Assn. of Bail-
way Employees v. Armbruster, 224
Ala 302, 140 S 356.
California. Belm v. Patrick, 109
CalApp 599, 293 P 847.
Illinois. Goss Printing Press Co.
v. Lempke, 90 IllApp 427; Egan v.
Moellenbrock, 322 111 426, 153 NE
600 (advising the jury that they may
disregard the testimony of a witness
who has knowingly sworn falsely).
Iowa. In Jorgensen v. Cocklin
(la), 260 NW 6, it was held error
to charge that the jury could disre-
gard the testimony of the defendant
if they believed his reputation for
truth and veracity was bad.
Missouri. Howser v. Chicago
Great Western R. Co., 319 Mo 1015,
5 SW2d 59; Pappas Pie & Baking
Co. v. Stroh Bros. Delivery Co.
(MoApp), 67 SW2d 793.
But an instruction to this effect
is insufficient if it fails to inform
the jury the facts as to which they
believe the witness has wilfully
testified falsely must have been ma-
terial facts. Lars en v. Webb, 332
Mo 370, 58 SW2d 967, 90 ALR 67.
Montana. Hageman v. Arnold, 79
Mont 91, 254 P 1070.
An instruction is defective which
tells the jury to disregard the testi-
mony of a witness who has wilfully
testified falsely in regard to a ma-
terial matter in the case, unless it
is corroborated by other competent
testimony. Vande Veegaete v. Van-
de Veegaete, 75 Mont 52, 243 P
1082.
South Dakota. Cox v. General
Motors Acceptance Corp., 59 SD 588,
241 NW 609.
8 Empire Plow Co. v. Berthold &
Jennings Lbr. Co. (MoApp), 237
SW 137; Hershiser v. Chicago, B.
& Q. E. Co., 102 Neb 820, 170 NW
177.
9 Kansas. Fisher v. O'Brien, 99
Kan 621, 162 P 317, LEA 1917F,
610.
Nebraska. Nye-Schneider-Fowler
Co. v. Chicago & N. W. R. Co., 105
Neb 151, 179 NW 503.
Oregon. Rostad v. Portland R.,
Light & Power Co., 101 Or 569, 201
P 184.
1 ° Schwamb Lbr. Co. v. Schaar,
94 IllApp 544.
1 ! McNeile v. Cridland, 6 PaSuper
Ct 428.
12 Wilson v. Detroit United R.
Co., 208 Mich 411, 175 NW 172.
125 PROVINCE OF COURT AND JURY § 38
reputation for truth is good;"13 or which points out that the
testimony of one credible witness is entitled to more weight than
the testimony of many others, if the latter are mistaken or have
knowingly testified untruthfully;14 or which informs the jury
that they may dismiss the testimony of any witness or believe
that of any witness or eliminate anything which the jury be-
lieved itself justified in eliminating.15 But the court invades the
province of the jury when it instructs on the weight to be at-
tached to the testimony of a witness or group of witnesses or a
certain class of evidence. ' 6
It is not error to tell the jury in a malpractice case that they
may disregard the answers of the experts to hypothetical ques-
tions if the jury does not believe that all of the facts assumed
in the questions have been established by the evidence. ! 7 It has
been held not an invasion of the jury's province to instruct the
jury to "weigh the evidence carefully and consider it all to-
gether," that they "should not pick out any particular fact in
evidence or any particular statement of any witness and give it
undue weight/' but that if they "believe any witness on either
side of this case has wilfully testified falsely on any material
matter," then they "have a right to disregard the entire testi-
mony of such witness unless the witness is corroborated by other
reliable evidence." 1 8
§ 38. Credibility of witnesses — Corroborating or contradictory
evidence.
The province of the jury as judges of the credibility of wit-
nesses is invaded by instructions concerning the weight the jury
are to give to corroborating or contradictory evidence.
Erroneous instructions. Credibility and weight are not mat-
ters susceptible of mathematical demonstration and the jury may
place confidence in the testimony of one witness and not in that
of another, regardless of the fact that either or both may be
1 3 Treschman v. Treschman, 28 88 SE 380. See also Louisiana &
IndApp 206, 61 NE 961. A. R. Co. v. Woodson, 127 Ark 323,
1 4 Illinois. In Olson v. North, 192 SW 174.
276 IllApp 457, the practice was ' 6 Jones v. Casler, 139 Ind 382, 38
frowned upon of telling the jury NE 812, 47 AxnSt 274; Gilmore v.
that the weight of the testimony Seattle & R. R. Co., 29 Wash 150,
does not necessarily go with the 69 P 743.
greater number of witnesses. l7Wilcox v. Crumpton (la), 258
North Dakota. McGilvra v. Min- NW 704.
neapolis, St. P. & S. S. M. R. Co., IS Reese v. Fife (Mo), 279 SW
35 ND 275, 159 NW 854. 415; Rio Grande Western R. Co. v.
Oregon. See also State v. Howard, Utah Nursery Co., 25 Utah 187, 70
102 Or 431, 203 P 311. P 859. See Harden v. Radford (Mo
v. Jackson, 104 SC 163, App), 84 SW2d 947.
§38
INSTRUCTIONS — RULES GOVERNING
126
interested as a party or parties to the action. * 9 Thus it is held
prejudicial error to instruct that "the testimony of one credible
witness is entitled to more weight than the testimony of many
others if, as to those other witnesses, the jury have reason to
believe and do believe from the evidence and all the facts before
them that such other witnesses have knowingly and wilfully
testified falsely and untruthfully and are not corroborated by
other credible witnesses or by circumstances proved in the
case/720 It is error for the court to tell the jury that they must
believe certain witnesses.21 Where the evidence is conflicting,
it is repugnant to the foregoing rule to instruct in such a manner
as to determine the question of weight for the jury.22 It is the
right of the jury to disregard testimony which they believe to
be untrue, even though they should predicate such belief upon
the contradictory testimony of another witness.23 The jury is not
required to believe a witness though he is uncontradicted and
not impeached.24 The court may not instruct that one witness
corroborates another.25 Where there is evidence to show that a
particular witness made statements, upon a different occasion,
in direct conflict with his testimony upon the trial, the court has
1 9 Mercantile Trust Co. v. Pauld-
ing Stave Co. (MoApp), 210 SW
438.
The court may, in its discretion,
instruct on credibility of witnesses
where there is contradictory evi-
dence on a material point. Dawson
v. Flinton, 195 MoApp 75, 190 SW
972.
Thus an instruction that "if the
jury find that the only evidence as
to the payment of these notes is that
of the parties — plaintiff and defend-
ant— who swear, oath against oath,
each in support of his contention,
and there being no corroboration, the
verdict must be for the plaintiff" is
clearly erroneous as taking from the
jury the right to say which witness
is to be believed. Thomas v. Law,
25 PaSuperCt 19.
20 Keller v. Hansen, 14 Bradw.
(14 IllApp) 640.
2 ' Carpenter v. Versailles (Mo
App), 65 SW2d 957.
22 Connecticut. Bradley v. Gor-
ham, 77 Conn 211, 58 A 698, 66 LRA
934.
Georgia. Southern Mut. Ins. Co.
v. Hudson, 113 Ga 434, 38 SE 964.
New York. Peterson v. Eighmie,
175 AppDiv 113. 161 NYS 1085.
Wisconsin. F. Dohmen Co. v.
Niagaia Fire Ins. Co., 96 Wis 38,
71 NW 69; Petrich v. Union, 117
Wis 46, 93 NW 819.
23 F. Dohmen Co. v. Niagara Fire
Ins. Co., 96 Wis 38, 71 NW 69.
The court transcends its domain
in instructing that "if there was a
conflict between the witnesses in
what they have sworn before you,
it is your duty to reconcile that con-
flict if you can do so; but if you can
not do so, then you should believe
that witness or those witnesses who
have the best opportunity of know-
ing the facts about which they testi-
fy and the least inducement to swear
falsely." Southern Mut. Ins. Co. v.
Hudson, 113 Ga 434, 38 SE 964.
24 Bradley v. Gorham, 77 Conn
211, 58 A 698, 66 LRA 934.
But see Geuder, Paeschke & Frey
Co. v. Milwaukee, 147 Wis 491, 133
NW 835, holding that the uncon-
troverted, reasonable, positive testi-
mony of one witness who has per-
sonal knowledge is controlling.
25 Lassiter v. Seaboard Air Line
Ry. Co., 171 NC 283, 88 SE 335.
127 PROVINCE OF COURT AND JURY § 38
no right to instruct that the impeaching evidence must be re-
ceived with great caution and that the jury should have little
regard for it unless convinced that extra weight should be at-
tached to it.26
The jury should not be instructed that a witness may be
impeached as to an immaterial matter in his testimony in refer-
ence to which he has made different and contradictory statements
on former occasions.27 Nor may it be assumed, on the other
hand, that a witness has been successfully impeached merely
because there is evidence of previous contradictory statements
made by him, and therefore an instruction is rightfully refused
which tells the jury that if a named witness testified at a former
trial upon the cause, with reference to a material matter, at
variance with his testimony upon the trial in question, such a
situation has a tendency to impeach him and they may reject
his evidence completely, unless corroborated.28
Proper instructions. It was held that there was no error in
an instruction that "the testimony of one credible witness may
be entitled to more weight than the testimony of many others,
if, as to those other witnesses, you have reason to believe and do
believe from the evidence and all the facts before you that such
other witnesses have knowingly testified untruthfully and are
not corroborated by other credible witnesses or by circumstances
proved in the case."29 And it is a correct statement of the law
to instruct that "a person who attaches his name as a witness
to a testamentary instrument impliedly certifies that the testator
is of sound mind and competent to make a will; and while the
law will subsequently permit him to testify to the contrary
because the truth, if such it be, should be learned, yet the jury
trying the case may consider the fact of such implied contra-
diction in weighing his testimony/' An instruction of this char-
acter has been held not to invade the province of the jury in a
case where the jury were explicitly told in the charge that they
were the judges of the credibility of the witnesses.30 It is not
within the inhibition of the rule to instruct that where there is
a chain of corroborating testimony this fact is of material im-
portance as bearing on the question of credibility.3 '
26 Bradley v. Gorham, 77 Conn 29 Strickler v. Gitchel, 14 Okl 523,
211, 58 A 698, 66 LRA 934. See 78 P 94.
also Beaulac v. Robie, 93 Vt 275, 107 3O Stevens v. Leonard, 154 Ind
A 107. 67, 56 NE 27, 77 AmSt 446. See
27 Fleck v. Weipert, 195 IllApp also Stark v. Cress, 4 OhApp 92.
57. See also Olson v. Des Moines 3 f Bisewski v. Booth, 100 Wis 383,
City R. Co., 186 la 384, 170 NW 466. 76 NW 349.
2* Matthews v. Granger, 06 IllApp
536.
.39
INSTRUCTIONS — RULES GOVERNING
128
If the testimony of a given witness to prove an issue for the
party having the burden is conflicting and contradictory, one
version tending to prove the issue and the other tending to dis-
prove it, with no reasonable excuse or explanation of the con-
tradiction, and no other fact or circumstance in the case tending
to show which version of the witness' testimony is true, no case
is made by the witness' testimony, as one contradictory state-
ment cancels the other; and the jury should not be permitted
to speculate or guess which of the contradictory statements
should be accepted.32
§ 39. Credibility of witnesses — Demeanor and character of wit-
nesses.
The jury's province is invaded by an instruction which com-
ments upon the demeanor or character of a witness.
It is an infringement of the jury's prerogatives for the court
to comment upon the demeanor or course of action or character
of witnesses.33 It is the jury's province to weigh the evidence
of a witness by giving consideration to his manner and testimony
on the stand,34 and to determine credibility without being preju-
diced by expressions of opinion from the court intimating that
32 Flack v. First Nat. Bank, 148
Tex 495, 226 SW2d 628.
33 Federal The rule is different
in the federal courts. Thus in a
prosecution for transporting women
in interstate commerce for purpose
of prostitution, where the jury may
have found that the women, who
testified for the prosecution, were
accomplices, and accused requested
proper instructions concerning ac-
complice testimony, the court
charged concerning the witnesses:
"You have noticed their manner of
testifying, and you have heard more
or less about what kind of people
they are. All these things you
should keep in mind when you are
weighing the testimony of any wit-
ness, in order to determine what
credibility it is entitled to." It was
held that this amounted to nothing
more than the general admonition,
which it was proper for the court
to give in all cases, and fell far
short of the requirements of the
situation. Freed v. United States,
266 F 1012.
California. People v. Wallace, 89
Cal 158, 26 P 650.
Illinois. Purdy v. People, 140 111
46, 29 NE 700; DeLong v. Giles, 11
IllApp 33.
An instruction was erroneous as
not confining the jury to the evidence
in the case to determine the credi-
bility of witnesses which told them
that credibility was determined from
the manner of the witnesses, the
reasonableness or otherwise of their
testimony, and their means of know-
ing, if shown by the evidence and
all other circumstances tending to
aid them in weighing the testimony.
Fowler v. Cade, 214 IllApp 153.
Missouri. Kirchner v. Collins, 152
Mo 394, 53 SW 1081.
North Carolina. Crutchfield v.
Richmond & D. R. Co., 76 NC 320.
West Virginia. See also State v.
Owens, 96 WVa 308, 122 SE 909.
34 Arkansas. Martin v. Vaught,
128 Ark 293, 194 SW 10.
Illinois. People v. Lalor, 290 111
234, 124 NE 866.
Missouri. Kirchner v. Collins, 152
Mo 394, 53 SW 1081; Esstman v.
United R. Co. (Mo), 232 SW 725,
129 PROVINCE OP COURT AND JURY § 40
the testimony of particular witnesses is inconsistent with their
conduct,35 or that certain witnesses are entitled to a higher
degree of belief because they are sworn officers of the law.36 It
is not a fair comment by the court on the credibility of witnesses
to intimate or suggest that such witnesses are entitled to less
credibility if they are private detectives in the pay of one of the
parties.37
But the fact that a defendant conveyed its witnesses gratui-
tously to the place of trial and defrayed their hotel expenses is a
circumstance tending to show bias and is proper matter for the
consideration of the jury,38 and it is error to instruct as a matter
of law that the fact that this was done has nothing to do with
the issues in the case.39 And where the method of procuring
admissions, in an action on a policy of insurance, tends to show
that undue influence was exercised by persons of skill and experi-
ence in such matters, the admissions so brought out should be
closely scrutinized and it is correct for the court so to charge.40
There was no error in a case where the court pointed to
the extreme youth of a witness who was a boy eight years old
as a circumstance affecting credibility, together with the conduct
of the child's mother in talking over his probable testimony on
the day preceding the trial, without directing the jury how to
find the facts, but leaving the question of weight to the jury.41
It has been held that the court may comment on character
to the extent of saying that one of the witnesses is a well-known
and capable member of the bar,42 or a minister of the gospel.43
So, the court may charge that the credibility of a witness is not
to be tested by his color or race.44 It is held not an infringement
of the prerogatives of the jury for the court to direct the jury
to weigh with caution the evidence of a weak-minded witness.45
§ 40. Credibility of witnesses — Interested witnesses.
The effect of interest, bias, or prejudice of a party on his
credibility is wholly for the jury to consider, and an instruction
which discredits the testimony of a witness on the ground of his
interest in the cause of action deprives the jury of their right, to
that extent, to be the sole judges of the credibility of witnesses.
35 Renaud v. Bay City, 124 Mich. 4O Fidelity Mut. Life Assn. v.
29, 82 NW 617. Jeffords, 107 F 402, 53 LRA 193.
36 Durst v. Ernst, 45 Mise 627, 4I Banks v. Connecticut B. &
91 NTS 13. Lighting Co., 79 Conn 116, 64 A 14.
37 DeLong v. Giles, 11 IllApp 33. 42 Holmes v. Montauk Steamboat
38 Alabama Great Southern R. Co., Ltd., 93 F 731.
Co. v. Johnston, 128 Ala 283, 29 43 Sneed v. Creath, 8 (NC) 309.
S 771; Moore v. Nashville, C. & St. 44McDaniel v. Monroe, 63 SC 307,
L. By., 137 Ala 495, 34 S 617. 41 SE 456.
39 Moore v. Nashville, C. & St. L. 4S Lowe v. Herald Co., 6 Utah 175,
By., 137 Ala 495, 34 S 617. 21 P 991.
§40
INSTRUCTIONS — RULES GOVERNING
130
It is always competent for the jury to believe or disbelieve
a witness, wholly irrespective of any interest he may or may
not have in the litigation, and this right would be taken from
them should the court tell them to give less weight to the testi-
mony of an interested than of a disinterested witness.46 The
46 Federal. It Is proper to in-
struct that the jury must weigh the
testimony of each witness, consider-
ing the interest that any witness
might have in the outcome of the
case, as bearing* upon the subject
of damages, even if plaintiff's con-
tention that negligence was con-
clusively established was correct.
Robertson v. Washington By. &
Elec. Co., 51 AppDC 311, 279 F 180.
Alabama. Louisville & N. R. Co.
v. Watson, 90 Ala 68, 8 S 249.
California. It is not erroneous to
instruct that each of the parties is
interested in the case. Konig v.
Lyon, 49 CalApp 113, 192 P 875.
Georgia. It has been held that
the court takes from the jury the
right to take into consideration the
interest of witnesses in the outcome
of the action by instructing that
it is the duty of the jury not to
impute perjury to any witness, but
to reconcile all the testimony, if
possible, or to decide from the evi-
dence which witnesses the jury would
believe. Summers Buggy Co. v.
Estes, 34 GaApp 407, 130 SE 350.
Illinois. Pienta v. Chicago City
R. Co., 284 111 246, 120 NE 1; Doug-
lass v. Fuller ton, 7 IllApp 102; Mar-
golis v. Chicago City R. Co., 197
IllApp 316; Fairfowl v. Price, 221
IllApp 447.
Indiana. Nelson v. Vorce, 55 Ind
455; Duvall v. Kenton, 127 Ind 178,
26 NE 688.
An instruction that the weight of
the testimony of a witness depends
upon his disinterestedness in the
result of the suit and his freedom
from bias, though close to the line,
has been held not to warrant a re-
versal where there was nothing to
show that it was more prejudicial
to one party than the other. Hess
v. Lowrey, 122 Ind 225, 23 NE 156,
7 LRA 90, 17 AmSt 355.
Iowa. Bonnell v. Smith, 53 la
281, 5 NW 128.
Michigan. Vinton v. Plainfield
Tp., 208 Mich 179, 175 NW 403.
The jury may be told that they
may consider the interest, bias, or
prejudice of the witnesses in reach-
ing the verdict. Foley v. Detroit
& M. R. Co., 193 Mich 233, 159 NW
506.
Mississippi. Samuel B. Allen &
Co. v. Lyles, 35 Miss 513.
Missouri. Kansas City, N. & Ft.
S. R. Co. v. Dawley, 50 MoApp 480.
Nebraska. Omaha Belt Ry. Co. v.
McDermott, 25 Neb 714, 41 NW 648.
New York. Duygan v. Third Ave.
R. Co., 6 Misc 66, 26 NYS 79;
, Stevens v. Rosenwasser, 162 NYS
989.
New York. In People v. Viscio,
241 AppDiv 499, 272 NYS 213, a
case in which the defendant was
on trial for arson, the judge in his
charge instructed the jury that de-
fendant and his son, who had testi-
fied for him, were interested wit-
nesses. In discussing that subject
the judge said: "The defendant has
testified here. Naturally, Gentlemen,
he is interested in the outcome of
the trial. It is your duty to place
such credibility upon the testimony
of this defendant's witnesses, the
testimony of his son, as you may
deem that credibility deserves. Take
into consideration that he is inter-
ested and his son is interested, are
interested witnesses in the outcome
of this lawsuit. In believing and
testing their testimony, place a
keener test to the weight of their
testimony than you would of some
witness who is not at all interested
in the outcome of this trial." On
appeal from a conviction, the appel-
late court said as to this charge:
"The court seriously erred in the
statement just quoted. A disinter-
131
PROVINCE OP COURT AND JURY
§40
rule is the same as to relatives of interested witnesses.47 While
the jury may disbelieve the testimony of a party litigant, they
may not wholly ignore it without first weighing and considering
it in the light of the other evidence and of the attending circum-
stances.48 The court was right where it declined to instruct
that "in weighing the evidence the jury are to remember that
the plaintiff is the most interested party in the controversy;
they are to receive his evidence, therefore, with caution as being
that of a partial witness; and they are empowered to reject
any evidence which is uncorroborated, even though it be uncon-
tradicted."49 Even where an instruction on the question of in-
terest is otherwise unobjectionable, the jury should be told that
they "may," rather than that they "should," take into considera-
tion the interest of a witness in the result of the suit.50 It is
equally a violation of the rule for the court to instruct the jury
that the facts testified to by an interested party have been
ested "witness is not necessarily en-
titled to any more credit than an
interested witness. The whole sub-
ject of the interest of the witness
and its effect upon his testimony
is for the jury. In this instance the
error was highly prejudicial because
the defense rested entirely upon the
story of the defendant and his son."
See also People v. Gerdvine, 210 NY
184, 104 NE 129.
Ohio. Scholl v. Sterkel, 46 OhApp
389, 189 NE 15; Rose v. State, 13
OhCirCt 342, 7 OhCirDec 226.
Oklahoma. Thrasher v. St. Louis
& S. F. Ry. Co., 86 Okl 88, 206 P
212 (employees of railroad).
Pennsylvania. Park v. Beaver
Valley Trac. Co., 262 Pa 561, 106 A
106.
In Pennsylvania, a common law
state, sanction is given to careful
instructions on the testimony deal-
ing with the number of witnesses
on each side, their respective inter-
ests, opportunities for observation,
and other matters affecting the
weight of evidence, in personal in-
juries, in view of natural sympathy.
Windle v. Davis, 275 Pa 23, 118 A
503.
Texas. Willis v. Whitsitt, 67 Tex
673, 4 SW 253; Briggs v. Briggs
(TexCivApp), 227 SW 511.
47 Indiana. Nelson v. Vorce, 55 Ind
455; Unruh v. State, 105 Ind 117, 4
NE 453.
New York. People v. Viscio, 241
AppDiv 499, 272 NTS 213.
Pennsylvania. It was not ground
for reversal that the court charged
that the plaintiff's wife and daugh-
ter, as witnesses, were morally in-
terested in the suit. Lipshutz v.
Lipshutz, 274 Pa 217, 117 A 796.
48 Hence, where there is no charge
or requested charge as to the jury's
province in sifting the evidence and
determining questions of credibility,
an instruction that the jury "may
disregard entirely the plaintiff's tes-
timony, inasmuch as he is an inter-
ested witness" is rightfully refused.
Irwin v. Metropolitan St. Ry. Co., 25
Misc 187, 54 NYS 195.
49Coloritype Co. v. Williams, 78
F 450.
50 Alabama. Miller v. State, 21
AlaApp 283, 107 S 721.
Georgia. The proper instruction
as to interest is that it "may" and
not that it "does" affect credibility
of the witness. Davis v. Central R.
R., 60 Ga 329.
Indiana. Lynch v. Bates, 139 Ind
206, 38 NE 806.
North Dakota. State v. Greiner,
53 ND 558, 207 NW 226.
Oregon. State v. Quartier, 118 Or
637, 247 P 783.
§41 INSTRUCTIONS — RULES GOVERNING 132
established though the testimony of such witness was not con-
tradicted.5 •
Where, however, an instruction as to interest as affecting
credibility is general and not limited in its operation to any
particular witness or witnesses, it is within the court's province
to give it,52 The court may, with propriety, instruct that, in
deliberating upon the evidence, the interest of the witnesses
may be considered by the jury, where at the same time the
jury are admonished that no unfair inference is raised by the
fact of the witnesses' employment by one of the parties to the
action.53
§ 41. Credibility of witnesses in criminal cases.
The jury in criminal cases are the exclusive judges of the
credibility of the witnesses appearing before them and this pre-
rogative may not be usurped by the court in his instructions.
The judge at any time during a criminal trial is not permitted
to cast doubt upon a witness7 testimony or to impeach his credi-
bility. It makes no difference in what manner or when the opinion
of the judge is conveyed to the jury. It may be directly or in-
directly, by comment, by arraying the evidence unequally in
the charge, by imbalancing the contentions of the parties, by the
choice of language in stating the contentions, or by the general
tone and tenor of the trial. All are forbidden.54
5 ' Turner v. Grobe, 24 TexCivApp See also Brown v. Forrester & Nace
554, 59 SW 583. Box Co. (Mo), 243 SW 330.
52 Lynch v. Bates, 139 Ind 206, 54 Alabama. Kennedy v. State,
38 NE 806; Kavanaugh v. Wausau, 147 Ala 687, 40' S 658; Turner v.
120 Wis 611, 98 NW 550. State, 160 Ala 40, 49 S 828; McCoy
An instruction that, in passing v. State, 170 Ala 10, 54 S 428;
upon the credibility of plaintiff's Pearce v. State, 4 AlaApp 32, 58 S
testimony, the jury may properly 996; Snead v. State, 7 AlaApp 118,
consider his interest in the result 61 S 473.
of the trial, the temptation under Arkansas. James v. State, 94 Ark
the circumstances to color his testi- 514, 127 SW 733, Marshall v. State,
mony favorably to himself, and 101 Ark 155, 141 SW 755; Benson
everything- bearing on the subject, v. State, 103 Ark 87, 145 SW 883;
and give such evidence such weight Smith v. State, 172 Ark 156, 287 SW
only as, in their judgment, it was 1026.
entitled to, and that a like test Colorado. Curl v. People, 53 Colo
should be applied to evidence of each 578, 127 P 951, AnnCas 1914B 171;
of the witnesses who testified in the Brasher v. People, 81 Colo 113, 253
case, has been held a correct state- P 827.
ment of a legal principle and not to Florida. Wolf v. State, 72 Fla
infringe upon the province of the 572, 73 S 740.
jury. Kavanaugh v. Wausau, 120 Georgia. Waycaster v. State, 136
Wis 611, 98 NW 550. Ga 95, 70 SE 883; Union v. State,
53 Lovely v. Grand Rapids & I. 7 GaApp 27, 66 SE 24.
R. Co., 137 Mich 653, 100 NW 894.
133
PROVINCE OF COURT AND JURY
§41
Erroneous Instructions. It has been held error for the court
to fail to charge that the jury are the judges as to the facts,
the credibility of the witnesses and the weight of their testi-
mony.55 Under this rule it is for the jury to pass upon the
credibility of such witnesses as the accused.56
Idaho. State v. Marren, 17 Idaho
766, 107 P 993.
Illinois. Hauser v. People, 210 111
253, 71 NE 416; People v. Jacobs,
243 111 580, 90 NE 1092 ; People v.
McCann, 247 111 130, 93 NE 100,
20 AnnCas 496.
Indiana. Cotner v. State, 173 Ind
168, 89 NE 847.
Iowa. State v. Todd, 110 la 631,
82 NW 322; State v. Brown, 152 la
427, 132 NW 862.
Kentucky. Hale v. Common-
wealth, 151 Ky 639, 152 SW 773.
Louisiana. State v. Bazile, 50
LaAnn 21, 23< S 8.
Michigan. People v. Breen, 192
Mich 39, 158 NW 142.
Missouri. State v. McKenzie, 177
Mo 699, 76 SW 1015; State v. Hall,
228 Mo 456, 12S SW 745; State v.
Bayless, 362 Mo 109, 240 SW2d 114.
Montana. State v. Jones, 32 Mont
442, 80 P 1095; State v. Morrison,
46 Mont 84, 125 P 649.
Nebraska. Howell v. State, 61
Neb 391, 85 NW 289; Parker v.
State, 67 Neb 555, 93 NW 1037;
Bunge v. State, 87 Neb 557, 127 NW
899.
New Jersey. A charge that con-
tradictory testimony of witnesses
must be considered by the jury as
affecting their credibility invades
the province of the jury. State v.
Rosa, 72 NJL 462, 62 A 695.
North Carolina. State v. Simp-
son, 233 NC 438, 64 SE2d 568.
Ohio. State v. Tuttle, 67 OhSt
440, 66 NE 524, 93 AmSt 689; Sand-
offsky v. State, 29 OhApp 419, 163
NE 634.
Oklahoma. Havill v. State, 7 Okl
Cr 22, 121 P 794; Wainscott v.
State, 8 OklCr 590, 129 P 655; Mun-
son v. State, 13 OklCr 569, 165 P
1162.
Texas. Edgar v. State, 59 TexCr
491, 129 SW 141; Crowell v. State,
66 TexCr 537, 148 SW 570; Hamil-
ton v. State, 68 TexCr 419, 153 SW
331.
Virginia. McCue v. Common-
wealth, 103 Va 870, 49 SE 623.
West Virginia. State v. Sutfin,
22 WVa 771.
55 Garrison v. State, 129 TexCr
32, 84 SW2d 477.
56 Federal. It has been held error
for the trial court to tell the jury
that the decision of the case depends
upon whether the accused told the
truth on the witness stand. Grille
v. United States, 26 F2d 461.
Alabama. Stevens v. State, 138
Ala 71, 35 S 122.
It is an invasion where the court
instructs that, in weighing the testi-
mony of the accused, the jury must
consider his interest in the case;
but an instruction that they may
do so does not have this effect.
Tucker v. State, 167 Ala 1, 52 S 464.
It is an invasion in an instruction
that the jury in weighing the testi-
mony of the accused must consider
the fact that he is the accused and
interested in the result. Pugh v.
State, 4 AlaApp 144, 58 S 936.
Where the court had charged that
there was testimony in the case im-
peaching the veracity of the accused,
the latter was entitled to have the
court tell the jury that his testi-
mony could not be capriciously dis-
regarded or rejected. Ware v. State,
21 AlaApp 407, 108 S 645.
Arizona. Erickson v. State, 14
Ariz 253, 127 P 754.
Arkansas. Douglass v. State, 91
Ark 492, 121 SW 923.
California. It is an invasion by
instruction that the defendant has
offered himself as a witness in his
own behalf and that the jury are
not permitted to disregard or reject
his testimony simply on the ground
that he is the accused and on trial
INSTRUCTIONS — RULES GOVERNING
134
Also under this rule, it is for the jury and not the court to
pass upon the credibility of witnesses who may be considered as
accomplices,57 children when called to testify,58 detectives,59
on a criminal charge. People v.
Winters, 125 Cal 325, 57 P 1067.
Georgia. It is proper to instruct
that the jury has the right to be-
lieve the statement of the defend-
ant in preference to the sworn testi-
mony in the case. Clark v. State,
35 GaApp 388, 133 SE 273.
Illinois. Carle v. People, 200 111
494, 66 NE 32, 03 AmSt 208.
Massachusetts. Commonwealth v.
Barber, 261 Mass 281, 158 NE 840.
In Commonwealth v. Stewart, 255
Mass 9, 151 NE 74, 44 ALR 579, it
was held proper for the court to tell
the jury that they must differentiate
between the statement of the ac-
cused not under oath and the sworn
testimony before them.
Nevada. State v. Blaha, 39 Nev
115, 154 P 78.
New Jersey. See also State v.
Sandore, 100 NJL 187, 124 A 528.
New York. People v. McDonald,
159 NY 309, 54 NE 46; People v.
Biddison, 136 AppDiv 525, 121 NYS
129.
It is error to tell the jury that in
weighing the testimony of the de-
fendant and his son, the main reli-
ance of the defense being upon such
testimony, they should place a
keener test upon it than they would
upon the testimony of disinterested
witnesses. People v. Viscio, 241
AppDiv 499, 272 NYS 213.
North Carolina. State v. Wilcox,
206 NC 691, 175 SE 122.
It was not erroneous to tell the
jury to scrutinize testimony with
care to determine to what extent his
testimony was biased by his in-
terest. State v. Burton, 172 NC
939, 90 SE 561.
It was error for the court to
instruct the jury that they should
scrutinize the testimony of the de-
fendant carefully before accepting
it as true and that the defendant
testifying in his own behalf is under
the temptation to testify to what-
ever he thinks will be necessary to
clear himself, and that the law pre-
sumes that he is under such a
temptation. State v. Wilcox, 206
NC 694, 175 SE 121.
North Dakota. The fact that de-
fendant gave no testimony would
not render erroneous the giving of
the usual instruction as to credi-
bility of witnesses. State v. Ram-
sey, 31 ND 626, 154 NW 731.
Oklahoma. Wainscott v. State, 8
OklCr 590, 129 P 655; Doud v. State,
12 OklCr 273, 154 P 1008; Dismore
v. State (OklCr), 44 P2d 894.
South Carolina. State v. Cannon,
49 SC 550, 27 SE 526.
Texas. Tilmyer v. State, 58 Tex
Cr 562, 126 SW 870, 137 AmSt 982.
It is an invasion of the province
of the jury for the court to in-
struct that the only object of evi-
dence of prior conviction of the de-
fendant of crime is its effect on his
credibility as a witness. Patrick v.
State, 106 TexCr 205, 291 SW 901.
57 Federal. Hoback v. United
States, 296 F 5; Greenberg v. United
States, 297 F 45.
Alabama. The province of the
jury as to the credibility of wit-
nesses is invaded by an instruction
that the jury must view the testi-
mony of the wife of an accomplice
with caution and give every con-
sideration to the fact that she is
the wife of an accomplice. Critten-
den v. State, 134 Ala 145, 32 S 273.
California. Where the evidence is
uncontradicted that shows a witness
to be an accomplice, there is no jury
question concerning it involved.
People v. McDeermott, 75 CalApp
718, 243 P 485.
Colorado. Tollifson v. People, 49
Colo 219, 112 P 794.
Delaware. State v. Ryan, 1 Boyce
(24 Del) 223, 75 A 869.
Iowa. It is not error for the
court to fail to define an accomplice
where an instruction has properly
135
PROVINCE OF COURT AND JURY
police officers,60 experts,61 convicts,62 prostitutes,63 impeached
witnesses,64 eye-witnesses to homicide,65 interested witnesses
told the jury that the witness is
confessedly an accomplice. State v.
Gill, 202 la 242, 210' NW 120.
Kentucky. Where an accomplice
testifies, the court must instruct as
to the necessity of corroboration
under Carroll's Cr. Code 1932, § 241.
Mullins v. Commonwealth, 216 Ky
149, 287 SW 542.
Michigan. People v. Schweitzer,
23 Mich 301; Hamilton v. People,
29 Mich 173; People v. Dumas, 161
Mich 45, 125 NW 766; People v.
Delano, 318 Mich 557, 28 NW2d 909.
Missouri. State v. Daugherty,
302 Mo 638, 259 SW 787.
Oklahoma. Where evidence is con-
flicting- as whether a witness is an
accomplice, the court may instruct
on law of accomplices. Wiley v.
State, 17 OklCr 643, 191 P 1057.
Texas. Simms v. State, 98 TexCr
352, 265 SW 897.
West Virginia. State v. Ham-
mond, 96 WVa 96, 122 SE 363.
58 California. People v. Sonoqui
(Cal), 31 P2d 783; People v. Agul-
lana (CalApp), 40 P2d 848.
Idaho. State v. Parris (Idaho), 44
P2d 1118.
Illinois. People v. Lewis, 252 111
281, 96 NE 1005.
Missouri. It is an improper com-
ment on the credibility of a witness
to charge the jury to consider her
age, her moral state of mind, and
the fact that she does not realize
the sanctity of an oath. State v.
Burlison, 315 Mo 232, 285 SW 712.
59 Alabama. Harris v. Tusca-
loosa, 21 AlaApp 316, 108 S 79.
Illinois. People v. Dressen, 158
IllApp 139.
Michigan. People v. Plummer,
189 Mich 415, 155 NW 533.
Missouri. State v. Kennett, 151
MoApp 637, 132 SW 286; State v.
Kimmell, 156 MoApp 461, 137 SW
329.
Oregon. State v, Emmons, 63 Or
535, 127 P 791.
It is not proper to instruct the
jury that they should consider the
testimony of those employed to se-
cure evidence in a case with greater
care than the testimony of other
witnesses. State v. Quartier, 118
Or 637, 247 P 783.
60 Robinson v. Commonwealth,
118 Va 785, 87 SE 553.
1 i Alabama. White v. State, 133
Ala 122, 32 S 139; Parrish v. State,
139 Ala 16, 36 S 1012.
California. People v. Wilkins, 158
Cal 530, 111 P 612; People v.
Driggs, 14 CalApp 507, 112 P 577.
District of Columbia. Shaffer v.
United States, 24 AppDC 417.
Georgia. Rouse v. State, 135 Ga
227, 69 SE 180.
North Carolina. State v. Wilcox,
132 NC 1120, 44 SE 625.
Oklahoma. Miller v. State, 9 Okl
Cr 255, 131 P 717, LRA 1915A,
1088.
62 Johnson v. State, 152 Ark 218,
238 SW 23.
63 State v. Rankin, 150 la 701,
130 NW 732. But see Freed v.
United States, 266 F 1012.
64 Federal. Van Dam v. United
States, 23 F2d 235.
Alabama. Rambo v. State, 134
Ala 71, 32 S 650; Autrey v. State,
15 AlaApp 574, 74 S 397; Freeland
v. State, 26 AlaApp 74, 153 S 294.
District of Columbia. Lyles v.
United States, 20 AppDC 559.
Georgia. Getters v. State, 35 Ga
App 497, 134 SE 121.
Indiana. But see Smith v. State,
142 Ind 288, 41 NE 595.
Kentucky. Shorter v. Common-
wealth, 248 Ky 37, 58 SW2d 224;
Sumner v. Commonwealth, 256 Ky
139, 75 SW2d 790.
Massachusetts. Commonwealth v.
Sacco, 255 Mass 369, 151 NE 839.
New Jersey. State v. Harris, 10
NJMisc 236, 158 A 848.
Oklahoma. It was an invasion to
instruct that the jury was bound
to accept and act upon the testi-
mony of an impeached witness, if
corroborated. Rea v. State, 3 Okl
Cr 269, 105 P 381.
INSTEUCTIONS — RULES GOVERNING
136
generally,66 and the weight to be attached to evidence establish-
ing the fact that a bloodhound trailed the defendant.67
It is error for the court to tell the jury that character wit-
nesses were interested witnesses because of their friendship for
the one for whose character they vouched, and to expatiate upon
the duty of the jury to consider whether this interest would lead
the character witnesses far afield in their desire and effort to
assist the party for whom they testify.68 Where a statement
was admitted in a homicide case as a dying declaration, it was
error for the court to charge that "a declaration made under
those circumstances is fully as solemn as one given under oath."69
The court is not authorized to convey to the jury in his instruc-
tions the idea that a witness in the case may be impeached on
an immaterial matter.70
Tennessee. Crittendon v. State,
157 Tenn 403, 8 SW2d 371.
Texas. Roberson v. State, 103
TexCr 307, 280 SW 586.
Vermont. State v. Bissel, 106 Vt
80, 170 A 102.
Washington. State v. Gaul, 88
Wash 295, 152 P 1029.
West Virginia. The province of
the jury is invaded by an instruc-
tion that the jury, if they were of
the opinion that any witness had
wilfully and corruptly testified to
what was false, were at liberty to
reject all of his testimony that was
not corroborated by other testi-
mony as the jury have a right to
believe any portion of the testimony
whether corroborated or not. State
v. Musgrave, 43 WVa 672, 28 SE
813.
Wisconsin. Haley v. State, 207
Wis 193, 240 NW 829.
65 Gray v. Commonwealth, 252
Ky 830, 68 SW2d 430.
66 Alabama. Bowlin v. State, 24
AlaApp 192, 132 S 600. But see
Thornton v. State, 18 AlaApp 225,
90 S 66 (instruction not a charge on
the evidence).
Illinois. In People v. Sepich, 237
IllApp 178, an instruction was held
too broad which informed the jury
that they could consider the finan-
cial or other interest of a witness
for the state in arriving at the
guilt or innocence of the defend-
ant; People v. Cash, 326 111 104, 157
NE 76.
Mississippi. Hughey v. State
(Miss), 106 S 361.
New York. The province of the
jury is invaded by a charge that in
estimating the value of the testi-
mony of a certain witness the jury
should consider that he had a strong
motive to testify in that he had civil
suits pending against the defendant
in which he and the defendant would
probably be witnesses. People v.
Noblett, 96 AppDiv 293, 89 NYS
181.
North Carolina. State v. Smith,
170 NC 742, 87 SE 98.
North Dakota. State v. Wisnew-
ski, 13 ND 649, 102 NW 883, 3
AnnCas 907 (witness entitled to re-
ward on conviction).
Oregon. State v. Pomeroy, 30 Or
16, 46 P 797 (wife and daughter of
accused).
Texas. Harrell v. State, 37 TexCr
612, 40 SW 799.
67 State v. Dooms, 280 Mo 84, 217
SW 43.
68 People v. Marino, 243 AppDiv
533, 275 NYS 962.
69 People v. Block, 243 AppDiv
551, 275 NYS 873. See People v.
Ludkowitz, 266 NY 233, 194 NE 688.
70 People v. Solomen, 261 IllApp
585.
137 PROVINCE OP COURT AND JURY §41
The appearance and demeanor of the witness on the stand
is for the jury to consider in giving weight to his testimony.7 •
The court should not single out the testimony of any particular
witness for comment, either favorable or unfavorable.72 The
court is without authority to point out to the jury certain
discrepancies in the testimony of the witnesses for one party
and at the same time to omit any references to grave contra-
dictions in that of the opposing set of witnesses.73
Proper instructions. It is permissible for the court to say to
the jury that they may consider the interest of any witness who
has testified.74 In the federal courts it has been held permissible
for the court to charge the jury to give to the testimony of
special investigators as much credit as other witnesses.75 The
court may with propriety tell the jury that if they believe any
witness before them has wilfully testified falsely as to a material
matter in the case, they may disregard the whole of his testimony
unless it is supported by other credible evidence.76
Testimony of the accused. When the accused in a criminal
case testifies as a witness he is entitled to an instruction upon
the hypothesis raised by his testimony, however improbable or
unreasonable his testimony may seem.77 It is improper for the
court to single out the testimony of the accused and tell the jury
that the law presumes that he will testify to whatever he may
think necessary to clear himself, and that the jury, in determining
the weight to give to his testimony, should consider the tempta-
tion he labors under.78 The jury ought not to be told in a crim-
inal case that they are not bound to believe the defendant, and
in considering his testimony they may think of his interest in
7 1 Alabama. Roberson v. State, New York. People v. Scanlon, 132
24 AlaApp 244, 133 S 744. AppDiv 528, 117 NYS 57.
California. An instruction that Washington. State v. Neaudeau,
"you should carefully scrutinize all 137 Wash 297, 242 P 36.
the testimony in this case and in 72 Koss v. State (Wis), 258 NW
doing so consider all the circura- 860.
stances under which each witness 73 People v. Robins, 242 AppDiv
has testified, his degree of intelli- 516, 275 NYS 940.
gence, his manner on the witness 74 State v. Simmons, 332 Mo 247,
stand" although an invasion of the 58 SW2d 302.
province of the jury is not preju- 7S Louviers v. United States, 62
dicial for it merely tells the jury F2d 163.
what they would do without being 76 State v. Parnsworth, 51 Idaho
told. People v. Newcomer, 118 Cal 768, 10 P2d 295; Wells v. State, 52
263, 50 P 405. OklCr 445, 6 P2d 841.
Illinois. People v. Fox, 269 111 See § 72, infra.
300, 110 NE 26. 77 Huffman v. People, 96 Colo 80,
New Jersey. State v. Runyon, 39 P2d 788.
94 NJL 265, 109' A 925. 7S State v. Garden, 207 NC 517,
177 SE 647.
42
INSTRUCTIONS — RULES GOVERNING
138
the result of the trial.79 Nor should the court charge that there
is a presumption of the truth of a statement of the defendant
against his own interest.80 The court should not charge the
jury that they should not disregard the testimony of the accused
because of the charge of crime made against him.81 It is an
invasion of the jury's province to tell them that in determining
the weight to be accorded to the accused's testimony they may
take into consideration the testimony of all the other witnesses
and also such facts and circumstances as are in proof in the
case.82
§ 42. Cautionary instructions.
The giving of cautionary instructions in both criminal and
civil cases is generally within the judicial discretion of the trial
judge and the giving of such instructions will not be ground for
reversal unless the privilege has been grossly abused to the in-
jury of a party.
Cautionary instructions have been declared to be warnings to
the jury to apply the law to the facts and to deal with each other
candidly in order to arrive at a just verdict.83 The giving of a
cautionary instruction is largely within the discretion of the trial
court.84 But just as with any discretionary power, it may be
79 People v. Rogers, 324 111 224,
154 NE 909.
80 State v. Foyte, 43 Idaho 459,
252 P 673.
8< People v. Harris, 128 CalApp
44, 16 P2d 688.
82 Alabama. McCormick v. State,
21 AlaApp 654, 111 S 647.
Illinois. In People v. Toohey, 319
111 113, 149 NE 795, it was held
error to instruct that the jury in
considering the defendant's credi-
bility as a witness might take into
account his demeanor on the wit-
ness stand and during the trial.
Michigan. People v. Wudarski,
253 Mich 83, 234 NW 157.
Oklahoma. Rhea v. United States,
6 Okl 249, 50 P 992.
Texas. But see Salamy v. State,
117 TexCr 465, 37 SW2d 1028.
«3 Stockton v. State, 174 Ark 472,
295 SW 397.
84 Arkansas. Aydelotte v. State,
170 Ark 1192, 281 SW 369.
California. In People v. Stevens,
78 CalApp 395, 248 P 696, it was
held permissible for the trial court
to tell the jury that unless the jury
did its duty the laws might as well
be stricken from the statute books.
But see People v. Harshaw, 128
CalApp 212, 16 P2d 1025.
Illinois. Comorouski v. Spring
Valley Coal Co., 203 IllApp 617.
Iowa. Siesseger v. Puth, 211 la
775, 234 NW 540.
Maryland. The judgment of the
lower court was set aside because
of failure of the trial judge to give
a cautionary instruction. Schapiro
v. Meyers, 160 Md 208, 153 A 27.
Minnesota. State v. Jenkins, 171
Minn 173, 213 NW 923.
Missouri. Hely v. Hinerman, 208
MoApp 691, 236 SW 698; Wolf son
v. Cohen (Mo), 55 SW2d 677; Fuen-
fgeld v. Holt (MoApp), 70 SW2d
143.
In State v. Hartley (Mo), 84
SW2d 637, it was held proper for
the court to refuse to tell the jury
that an alleged declaration of the
defendant should be received with
great caution.
139
PROVINCE OP COURT AND JURY
42
abused and if a party is prejudiced thereby, it is ground for
reversal.85 For example, too many cautionary admonitions fav-
orable to one party may constitute reversible error.86
Matters not in evidence. The failure to give a cautionary
instruction may be error. The trial justice must instruct the
jury that, except as to matters of common knowledge, they must
base their verdict solely upon the evidence produced at the trial.87
Yet in some courts this kind of cautionary instruction is not
mandatory. The court may instruct that the jury should base
their verdict on the evidence and not be influenced by matters
outside the case,88 such, for example, as the color of the liti-
gants,89 or that one of the parties is a corporation,90 or that the
defendant is a member of the same lodge as a juror.91 It is
proper to tell the jury that they should confine themselves to the
evidence in forming their conclusions,92 and not to indulge in
Nebraska. Dinsmore v. State, 61
Neb 418, 85 NW 445; Johnson v.
Nathan, 161 Neb 399, 73 NW2d 398.
Ohio. Bandy v. State, 13 OhApp
461, 32 OhCtApp 360; Cleveland &
S. W. Trac. Co. v. Ward, 6 OhCirCt
(N. S.) 385, 17 OhCirDec 761; Em-
pire Coal Min. Co. v. George M.
Jones Co., 15 OhCirCt (N. S.) 369,
31 OhCirDec 95; Geer v. State, 16
OhCirCt (N.S.) 151, 31 OhCirDec
455; Findlay Bros. Co. v. Eiser, 17
OhCirCt (N. S.) 406, 32 OhCirDec
206; Akron St. R. Co. v. Dussel,
33 OhBull 98.
Oregon. Childers v. Brown, 81
Or 1, 15S P 166, AnnCas 1918D,
170; Barnhart v. North Pacific Lbr.
Co., 82 Or 657, 162 P 843; Arthur
v. Parish, 150 Or 582, 47 P2d 682.
Pennsylvania. Commonwealth v.
Crow, 303 Pa 91, 154 A 283.
Texas. Ford Motor Co. v. Whitt
(TexCivApp), 81 SW2d 1032.
Wisconsin. Strabel v. State, 192
Wis 452, 211 NW 773.
85 Arkansas. Rayburn v. State,
69 Ark 177, 63 SW 356.
Iowa. State v. Derry, 202 la 352,
209 NW 514; Clarke v. Hubbell, —
la — , 86 NW2d 905.
Kansas. It was not error in a
criminal case for the trial court to
charge the jury that it was shown
by the evidence that the prosecu-
tion was being aided by the Ku
Klux KLan, and that it was laudable
for that organization to aid in the
enforcement of the law, but that the
jury should not be influenced by
the organization's action. State v.
Stockton, 119 Kan 868, 241 P 688.
ss Clarke v. Hubbell, — la — , 86
NW2d 905.
87 W. C. Viall Dairy, Inc. v. Provi-
dence Journal Co., 79 RI 416, 89
A2d 839.
88 Foskey v. State, 119 Ga 72, 45
SE 967; Wimberly v. State, 12 Ga
App 540, 77 SE 879; State v. Ted-
der, 83 SC 437, 65 SE 449.
89 McLaurin v. Williams, 175 NC
291, 95 SE 559; Wilson v. Singer
Sewing Mach. Co., 184 NC 40, 113
SE 508.
90 Iowa. Snakenberg v. Minneap-
olis & St. L. R. Co., 194 la 215, 188
NW 935.
Missouri. Burow v. St. Louis
Public Service Co. (MoApp), 79
SW2d 478 (said to be within the
discretion of the court).
Washington. Shanks v. Oregon-
Washington R. & Nav. Co., 98 Wash
509, 167 P 1074.
9J People v. Harris, 80 CalApp
328, 251 P 823.
92 Illinois. Smith v. Bellrose, 200
IllApp 368.
Oklahoma. Potter v. Womach, 63
Okl 107, 162 P 801.
;42
INSTRUCTIONS — RULES GOVERNING
140
speculation,93 so they may be told that they are not to give
damages simply because the charge set out rules for measure
of damages.94 It has been held proper for the court to caution
the jury to avoid discussion of personal experiences when they
deliberate upon the evidence.95 A very proper instruction is the
one cautioning the jury against participation in discussion of
the case before its submission.96
In a murder trial, where newspapers had carried statements
to the effect that the crime had been solved, it was held proper
for the court to tell the jury to disregard these statements.97
Sympathy and prejudice. In criminal cases the court may
caution the jury against sympathy for accused or his relatives
or against the influence of public prejudice against the crime or
the one charged therewith.98 The matter of instructions on
the subject of sympathy in civil actions is entirely within the
discretion of the court,99 but courts are generally not inclined to
give such instructions on the theory that jurors are fair-minded
men governed by their oaths and their reason. ! Where the cir-
cumstances of a civil case render it advisable, the court may
caution the jury against being influenced by sympathy or senti-
ment.2 A like instruction may be proper in a criminal case.3
Oregon. State v. Hamilton, 80
Or 562, 157 P 796.
South Carolina. State v. Cooler,
112 SC 95, 98 SE 845.
93 Indiana. See Gross v. State,
186 Ind 581, 117 NE 562, 1 ALE
1151.
Missouri. Holmes v. Protected
Home Circle, 199 MoApp 528, 204
SW 202; Garner v. New Jersey
Fidelity & Plate Glass Ins. Co. (Mo
App), 200 SW 448.
Oregon. Duncan Lbr. Co. v. Wil-
lapa Lbr. Co., 93 Or 386, 182 P 172,
183 P 476.
94 Grover v. Morrison, 47 CalApp
521, 190 P 1078.
95 Taylor v. General Exch. Ins.
Corp. (TexCivApp), 67 SW2d 1061.
96 Walker v. State, 82 Pla 465,
90 S 376; Gtmn v. State, 90 TexCr
209, 234 SW 399.
97 Hall v. State, 199 Ind 592, 159
NE 420.
98 California. People v. Wood-
cock, 52 CalApp 412, 199 P 565.
Illinois. People v. Duzan, 272 111
478, 112 NE 315.
Oregon. State v. Trapp, 56 Or
588, 109 P 1094; State v. Howard,
102 Or 431, 203 P 311.
99 California. People v. Bojor-
quez, 35 CalApp 350, 169 P 922.
Missouri. Aronovitz v. Arky
(Mo), 219 SW 620; Oliver v. Morgan
(Mo), 73 SW2d 993.
Oregon. Nordin v. Lovegren Lbr.
Co., 80 Or 140, 156 P 587.
Virginia. Powhatan Lime Co. v.
Whetzel's Admx., 118 Va 161, 86 SE
898.
1 Iowa. Mitchell v. Mystic Coal
Co., 189 la 1018, 179 NW 428.
Michigan. Robbins v. Magoon &
Kimball Co., 193 Mich 200, 159 NW
323.
Virginia. P. Lorillard Co. v. Clay,
127 Va 734, 104 SE 384.
2 Florida. Doyle v. State, 39 Fla
155, 22 S 272, 63 AmSt 159; Cook
v. State, 46 Fla 20, 35 S 665.
Iowa. Welton v. Iowa State
Highway Comm., 211 la 625, 233
NW 876.
Missouri. Waeckerley v. Colonial
Baking Co., 228 MoApp 1185, 67
SW2d 779.
141 PROVINCE OF COURT AND JURY § 42
Where during the trial the defendant by sudden outbursts called
the witnesses "dirty liars" and vile names, he was not entitled to
have the court tell the jury that these incidents should not cause
the jury to be prejudiced against him.4
Urging agreement. Urging a jury to come to an agreement
in a criminal case may be such as to constitute an invasion of
their province by the court.3 An argumentative, involved, cau-
tionary instruction, entreating that some of the jurors change
their minds and reach a verdict, is erroneous.6 They should
not be told that a failure to perform their duty, whereby a crime
goes unpunished, cannot be corrected by a new trial.7 The court
should not tell the jury that the people have a right to a proper
execution of the laws, and that unless the jurors do their duty
the laws may as well be stricken from the statute books.8
The court may tell the jury that questions of mercy are not
for the jury, but for the executive in the exercise of the pardon-
ing power.9 It is proper practice for the court to omit any
statement to the jury as to what will be the consequences of their
verdict. * °
Miscellaneous. The court should not single out a particular
witness and direct cautionary instructions against his testi-
mony. Such a course would tend to convey to the minds of the
jurors the impression that the particular witness was not be-
lieved by the court. f ! It is held not improper for the court to
tell the jury that his action in the sustaining or overruling of
evidence is not to be regarded as indicating sympathy or any
opinion as to the weight or credit of evidence. ' 2
If in a particular jurisdiction fewer than the total number of
jurors may return a verdict, the court should so instruct the
Nebraska. See also Koenigstein 7 State v. Crofford, 121 la 395,
v. State, 101 Neb 229, 162 NW 879. 96 NW 889.
New Mexico. The court should 3 People v. Harshaw, 128 CalApp
not refuse an instruction in rape 212, 16 P2d 1025. But see People
case cautioning the jury of the v. Stevens, 78 CalApp S95, 248 P
nature of the case and the ease with 696.
which an accusation may be lodged 9 Alabama, See Avery v. State,
and the difficulty of defending- the 124 Ala 20, 27 S 505.
same. State v. Glevenger, 27 NM Michigan. People v. Williams, 218
466, 202 P 687. Mich 436, 188 NW 403.
Washington. Curtis v. Perry, 171 Nebraska. Dinsmore v. State, 61
Wash 542, 18 P2d 840. Neb 418, 85 NW 445.
3 Kirchman v. State, 122 Neb 624, * ° Goldstein v. United States, 73
241 NW 100. F2d 804.
4 People v. Egan, 91 CalApp 44, l * People v. Longland, 52 CalApp
266 P 581. 499, 199 P 546.
5 Sharp v. State, 115 Neb 737, I2 People v. Davis, 300 111 226,
214 NW 643. 133 NE 320.
6 Stockton v. State, 174 Ark 472,
295 SW 397.
§ 43 INSTRUCTIONS — RULES GOVERNING 142
jury.13 The jury may be warned not to agree upon a verdict
by lot.14
§ 43. Cautioning individual jurors.
The trial court is authorized to caution individual jurors
only to the extent that such instruction does not amount to
coercion or improper influence upon the juror to cause him to
agree to a verdict to which he would otherwise not consent.
Each juror's independence. It is not error for the court to
direct the attention of the jury to their individual responsi-
bility and their independence in arriving at their verdict.15 It
is within the trial court's discretion to caution the jury against
yielding a conscientious conviction.16 An instruction has been
approved which, being addressed to the individual jurors, told
them that they should not give up their own opinions simply be-
cause other jurors held different views.17 On this last point,
apparently, states disagree: A requested charge should be re-
fused when its effect is to admonish individual jurors that if they
hold a reasonable doubt as to the defendant's guilt they should
not vote to convict merely because the majority believe other-
wise, or merely for the sake of reaching a verdict. ! 8 It is per-
missible to charge that no juror should give up his own
convictions if they remained after full and free consultation
with the other jurors.19
Other juror's influence. It has been held error for the court
to decline to tell the jury that jurors should not be influenced
by a majority.20 A federal court has declared it proper for the
court to tell the jury that each juror should consider the opin-
ions of the other jurors.2' If instructions have been given fairly
covering the issues and theories of the case, the court is not re-
quired to give a requested instruction that each juror is entitled
to make up his mind without regard to the opinions of the other
jurors.22 It has been held improper to charge the jury to
acquit the defendant in a criminal case unless each juror believed
him guilty beyond a reasonable doubt.23
{ 3 Louisville Cemetery Assn. v. l 8 State v. Eldredg-e, 45 Wyo 488,
Downs, 241 Ky 773, 45 SW2d 5. 21 P2d 545.
* 4 Texas & Pacific R. Co. v. Dickey ' 9 Blevins v. State, 169 Miss 868,
(TexCivApp), 70 SW2d 614. 154 S 269.
1 s Foust v. State, 200 Ind 76, 161 2O People v. Scott, 84 CalApp 642,
NE 371. 258 P 638.
1 6 State v. Rudman, 327 Mo 260, 2 ' Calcara v. United States, 53
37 SW2d 409. P2d 767.
17 Emery v. Monongabela West 22 Beers v. California State Life
Penn Public Service Co., Ill WVa Ins. Co., 87 CalApp 440, 262 P 380.
$99, 163 SE 620. 23 Alabama. Hudson y. State,
217 Ala 479, 116 S 800,
143
PROVINCE OF COURT AND JURY
§44
§ 44. Recommendations of mercy in criminal cases.
The jury should be instructed that they have the power of
recommending mercy if there is statutory authority and such
recommendation is binding on the court. However, failure to
so charge is error only if the accused has requested such charge.
The power of the jury to recommend mercy rests wholly
upon statutory provision. Without a statute, there is no such
power, and if such recommendation be made, the court is not
required to consider it in fixing punishment.24 If the charge of
the court to the jury is such as to induce the jury to mistakenly
believe that they can recommend mercy, and that such recom-
mendation will be given effect, a conviction will be considered
wrongfully obtained and will be vacated on appeal.25
If there is statutory authority for the jury to recommend a
convicted person to the mercy of the court, and the provision
makes such recommendation binding on the court, the jury
should be instructed that they have the power to so recommend
as a part of their verdict.26 In order, however, to constitute
Indiana. Cole v. State, 203 Ind
616, 173 NE 597.
Kansas. State v. McClure, 125
Kan 608, 265 P 1099 (converse).
New Jersey. See State v. Baline,
104 NJL 325, 140 A 566.
Pennsylvania. See Commonwealth
v. Pulemena, 113 PaSuper 430, 173
A 462.
24 Arkansas. Criglow v. State,
183 Ark 407, 36 SW2d 400.
California. People v. Lee, 17 Gal
76; People v. Holmes, 118 Cal 444,
50 P 675; People v. Bowman, 24
CalApp 781, 142 P 495; People v.
Cornell, 29 CalApp 430, 155 P 1026;
People v. Caiazza, 61 CalApp 505,
215 P 80; People v. Mitchell, 61 Cal
App 569, 215 P 117; People v.
Parker, 119 CalApp 246, 6 P2d 82;
People v. Keylon, 122 CalApp 408,
10 P2d 86.
Indiana. Callender v. State, 193
Ind 91, 138 NE 817 (recommenda-
tion when not authorized does not,
however, invalidate the verdict).
Iowa. State v. Sampson, 220 la
142, 261 NW 769.
Kansas. State v. Cotton, 134 Kan
1, 4 P2d 367.
Louisiana. State v, Harville, 170
La 991, 129 S 612; State v. Doucet,
177 La 63, 147 S 500, 87 ALR 1356.
Mississippi. Allen v. State, 166
Miss 551, 148 S 634.
Nevada. State v. Vasquez, 16 Nev
42.
Oklahoma. Teel v. State, 53 Okl
Cr 200, 11 P2d 197.
South Carolina. State v. Jones,
74 SC 456, 54 SE 1017.
Washington. State v. Lindberg,
125 Wash 51, 215 P 41.
West Virginia. See State v. Mc-
Coy, 95 WVa 274, 120 SE 597.
25 Iowa. State v. Kernan, 154
la 672, 135 NW 362, 40 LEA (N. S.)
239.
Louisiana. See State v. Titus,
152 La 1011, 95 S 106. See also
State v. Bradley, 6 LaAnn 554.
New Jersey. See State v. Martin,
92 NJL 436, 106 A 385, 17 ALR 1090
(under statute since amended).
South Dakota. State v. Kiefer,
16 SB 180, 91 NW 1117, 1 AnnCas
268.
26 United States. Winston v.
United States, 172 US 303, 43 LEd
456, 19 SupCt 212.
California. People v. Rogers, 163
Cal 476, 126 P 143.
Florida. Keech v. 'State, 15 Fla
591; Denham v. State, 22 Fla 664;
.44
INSTRUCTIONS — RULES GOVERNING
144
error from a failure to charge the jury as to its power to recom-
mend mercy, it is necessary that the defendant request such
charge.27
In some of the states where the jury are authorized to recom-
mend mercy, it is solely a question left to their discretion as to
whether they will do so,28 and likewise within the discretion of
the court to determine what quantum of punishment shall be
meted out to the defendant.29
Milton v. State, 40 Pla 251, 24 S
60; Cook v. State, 46 Fla 20, 35 S
665; Webster v. State, 47 Fla 108,
36 S 584.
Georgia. Cyrus v. State, 102 Ga
616, 29 SE 917.
New Jersey. State v. Martin, 92
NJL 436, 106 A 385, 17 ALR 1090.
Ohio. Howell v. State, 102 OhSt
411, 131 NE 706, 17 ALR 1108; Reh-
feld v. State, 102 OhSt 431, 131 NE
712; Mason v. State, 5 OhCirCt
(N. S.) 647, 17 OhCirDec 526.
South Carolina. State v. Bethune,
86 SC 143, 67 SE 466. See State v.
Adams, 68 SC 421, 47 SE 676.
Utah. It is reversible error for
the court to fail so to instruct.
State v. Zuro Yamashita, 61 Utah
170, 211 P 360.
27 Florida. Under a statute per-
mitting the jury to add to their
verdict a recommendation of mercy,
and that when such recommendation
was made in a murder case, the
punishment should be life imprison-
ment instead of death, the court
said: "We know of no rule requir-
ing the court to instruct the jury in
regard to the punishment to be
inflicted upon criminals. It would
be very proper for the court to
instruct the jury as to the existence
of this law, in all capital cases, and
it would undoubtedly be the duty
of the court to do so if it were
specially requested. In this case
we find no exception taken on ac-
count of the omission, nor any evi-
dence that the court was so re-
quested." Keech v. State, 15 Fla
591. See Groover v. State, 82 Fla
427, 90 S 473, 26 ALR 373.
Ohio. In Mason v. State, 5 Oh
CirCt (N. S.) 647, 17 OhCirDec 526,
the court said: "While we think
that the jury could not intelligently
recommend the prisoners to mercy
without knowing the effect of such
recommendation, and that it is the
duty of the court to so instruct,
yet, there being no request in this
case, it was not error for which the
judgment could be reversed."
South Carolina. In State v. Dod-
son, 16 SC 453, the court said: "There
are few instances — we doubt if there
are any — in which such recommenda-
tion has not been respected by the
proper authority, and yet we have
never heard it suggested before that
the omission of a judge to inform
the jury that they had such a power
would constitute such an error of
law as could be corrected by this
court; and we can see no reason
why it should be so regarded now,
especially when, as in this case,
there was no request so to instruct
the jury." See State v. Collins, 125
SC 267, 118 SE 423.
28 Delaware. State v. Jaroslow-
ski, 7 Boyce (30 Del) 108, 103 A
657; State v. Thomas, 1 W. W. Harr.
(31 Del) 102, 111 A 538.
New Mexico. See Territory v.
Griego, 8 NM 133, 42 P 81.
Tennessee. Ray v. State, 108
Tenn 282, 67 SW 553.
Utah. State v. Romeo, 42 Utah
46, 128 P 530. See State v. Woods,
62 Utah 397, 220 P 215.
29 Delaware. State v. Lapista, 7
Boyce (30 Del) 260, 105 A 676.
Georgia. See Yaughan v. State,
26 GaApp 639, 107 SE 389.
Idaho. State v. Farns worth, 51
Idaho 768, 10 P2d 295.
North Dakota. State v. Stern, 64
ND 593, 254 NW 765.
145
PROVINCE OF COURT AND JURY
§44
If the jury are given the power by statute to recommend
in a murder case that the accused be sentenced to imprisonment
for life instead of death, a failure of the trial court to instruct
the jury that they have such power has been held error by the
United States Supreme Court, even though the statute expressly
left it to the discretion of the trial court to say which punish-
ment should be inflicted.30
There are jurisdictions where the view prevails that even
though the statute places within the discretion of the jury the
matter of recommending mercy, the jury are nevertheless lim-
ited in the exercise of such discretion by a requirement that
their recommendation shall be warranted by the evidence, and
the court should so instruct the jury.31
Tennessee. Greer v. State, 3 Baxt.
(62 Term) 321.
Utah. State v. Thome, 39 Utah
208, 117 P 58.
30 Johnson v. State, 100 Ga 78, 25
SE 940; Moore v. State, 150 Ga
679, 104 SE 907; Braxley v. State,
17 GaApp 196, 86 SE 425; Winder
v. State, 18 GaApp 67, 88 SE 1003.
In Calton v. Utah, 130 US 83,
32 LEd 870, 9 SupCt 435, the jury
were not told by the trial judge of
their right under the statute to
recommend imprisonment for life
in the penitentiary at hard labor
in lieu of the punishment "by death
otherwise fixed by the statute. The
Supreme Court said: "If their at-
tention had been called to that
statute, it may be that they would
have made such a recommendation,
and thereby enabled the court to
reduce the punishment to imprison-
ment for life. We are of opinion
that the court erred in not directing
the attention of the jury to this
matter. The statute evidently pro-
ceeds upon the ground that there
may be cases of murder in the first
degree, the punishment for which
by imprisonment for life at hard
labor will suffice to meet the ends
of public justice. Its object could
only have been met through a rec-
ommendation by the jury that the
lesser punishment be inflicted, and
it is not to be presumed that they
were aware of their right to make
such a recommendation. The failure
of the court to instruct them upon
this point prevented it from impos-
ing the punishment of imprisonment
for life, even if, in its judgment,
the circumstances of the case ren-
dered such a course proper."
31 California. People v. Bawderi,
90 Cal 195, 27 P 204; People v.
Rogers, 163 Cal 476, 126 P 143. See
People v. Caiazza, 61 CalApp 505,
215 P 80; People v. Mitchell, 61 Cal
App 569, 215 P 117.
Delaware. State v. Thomas, 1
W. W. Harr. (31 Del) 102, 111 A
538; State v. Galvano, 4 W. W.
Harr. (34 Del) 409, 154 A 461;
State v. Carey, 6 W. W. Harr. (36
Del) 521, 178 A 877.
Georgia. Valentine v. State, 77
Ga 470; Harvey v. State, 20 GaApp
300, 115 SE 31.
Louisiana. In State v. Melvin, 11
La Ann 535, wherein was involved
such a statute empowering the jury
to recommend mercy, the instruc-
tion of the court went very far in
limiting the discretion of the jury,
by suggestions that they should not
exercise the pardoning power. For
that reason the Supreme Court re-
versed the conviction, but held:
"The qualification of the verdict in
capital cases should be left where
the law has left it, to the sound
discretion of the jury, upon the facts
of the case, guided by a sense of
their solemn responsibility — which
is, to do their whole duty to the
state as well as to the accused."
§44
INSTRUCTIONS — RULES GOVERNING
146
But in other states the rule obtains that when the statute
places it within the power of the jury, at their discretion, to
recommend the defendant to mercy, it means that their discre-
tion in the matter is not to be controlled or influenced by the court
by a charge that such recommendation must be based upon the
evidence or warranted by the evidence, or that the recommenda-
tion must be limited to some other cause.32 The Supreme Court
Ohio. Shelton v. State, 102 OhSt
376, 131 NE 704; Rehfeld v. State,
102 OhSt 431, 131 NE 712. See
Ashbrook v. State, 49 OhApp 298,
197 NE 214.
In Howell v. State, 102 OhSt 411,
131 NE 706, 17 ALR 1108, the court
said: "It may be true, and some
courts so hold, that the function of
a court, in permitting the jury to
make a recommendation respecting
mercy, is best fulfilled by simply
giving the terms of the statute to
the jury and informing them that
the making or withholding of the
recommendation is a matter entirely
within their discretion. In such
case, of course, it would be presumed
that the jury would fulfil their
duty from a consideration of the
case as presented to them as sworn
jurors. But in arriving at a de-
termination with reference to this
recommendation, they should be
guided by the evidence, or lack of
evidence as the case may be, as
disclosed upon the trial. It would
be a travesty upon justice were the
jury permitted to ignore the evi-
dence and rest their conviction upon
their conscientious scruples against
imposing capital punishment, or take
into consideration facts which may
have come to their knowledge while
they were not acting as jurors. That
was not the purpose of the law."
South Carolina. State v. Bates,
87 SC 431, 69 SE 1075.
In State v. Bethune, 86 SC 143,
67 SE 466, the court said: "When
shall the jury recommend a party
mercy? The legislature gave the
right, and the legislature did not
limit the power; they said wherever
the jury sees proper, under all the
circumstances of the case, if they
see any mercy in the circumstances;
if the circumstances of the case
satisfy the jury that the elements
in the case reduce it from that bold
and awful murder which merits
death, then the jury may recom-
mend the party to mercy."
Tennessee. Lewis v. State, 3 Head
(40 Tenn) 127.
It was said in Clark v. State, 8
Baxt. (67 Tenn) 591: "The jury
in the case returned a verdict of
f Guilty of murder in the first de-
gree with mitigating circumstances.'
The verdict would authorize the
court, in a proper case, to commute
the death penalty to imprisonment
for life in the state penitentiary.
The court in this case declined to
commute. This court has several
times held that the circuit judges
are not bound by such a finding,
if there be in fact no circumstances
in the case to mitigate the guilt of
the defendant. On the other hand,
it is the sworn duty of the circuit
judges to see to it, in every case
of atrocious guilt like this, that the
law be administered. We are at a
loss to see upon what the jury has
based its conclusion that there were
mitigating circumstances in this
case."
32 Florida. Garner v. State, 28
Fla 113, 9 S 835, 29 AmSt 232;
Lovett v. State, 30 Fla 142, 11 S
550, 17 LRA 705.
Georgia. Cohen v. State, 116 Ga
573, 42 SE 781; Williams v. State,
119 Ga 425, 46 SE 626; Thomas v.
State, 129 Ga 419, 59 SE 246.
New Jersey. State v. Martin, 92
NJL 436, 106 A 385, 17 ALR 1090
(as a result of this decision the
legislature of New Jersey amended
the pertinent statute by authorizing
147
PROVINCE OF COURT AND JURY
§44
of the United States has adopted the view that statutes author-
izing jury recommendations of mercy were intended to place
the matter wholly within the discretion of the jury, without
limitation or circumscription, leaving- them free to exercise their
discretion with or without evidentiary basis in the case.33
The charge of the court with respect to the power of the jury
to recommend mercy should not be couched in such terms, or
given at such a time, as will result in influencing, or tend to
result in influencing, the jury to reach and return a compromise
verdict.34 Such a charge has been regarded as an inducement
the jury to recommend mercy ex-
pressly "upon and after considera-
tion of all the evidence"); State v.
Carrigan, 93 NJL 268, 108 A 315,
aff'd in 94 NJL 566, 111 A 927.
Oklahoma. In Vickers v. United
States, 1 OklCr 452, 98 P 467, the
court said: "It is the duty of the
trial court to instruct the jury that
if they shall find a verdict of guilty
of rape, they may qualify their ver-
dict by the words, 'without capital
punishment/ no matter what the
evidence may be."
Utah. State v. Thorne, 39 Utah
208, 117 P 58.
In State v. Mewhirniey, 43 Utah
135, 134 P 632, LRA 1916D, 590,
AnnCas 1916C, 537, an instruction
was not condemned under this view
which told the jury that "in con-
sidering- this question, you are not
restricted by any rule of law or
public policy, but are entitled to
decide the question from such con-
siderations as may appeal to you as
reasonably and conscientiously en-
titled to be weighed in determining
the giving or withholding of such
recommendation."
33 The case of "Winston v. United
States, 172 US 303, 43 LEd 456, 19
SupCt 212, has received varied in-
terpretations among the state courts
in its holding as to the point un-
der discussion. There an act of
congress provided that in a case
where the accused was found guilty
of the crime of murder or rape, the
jury might qualify their verdict by
adding thereto "without capital pun-
ishment"; and that whenever the
jury should return such a verdict,
the person convicted should be sen-
tenced to imprisonment at hard
labor for life. The conviction was
reversed because the trial court
limited the discretion of the jury
to recommend the less extreme sen-
tences to cases where the jury were
of the opinion that there were pal-
liating or mitigating circumstances,
the court saying that "the authority
of the jury to decide that the ac-
cused shall not be punished capitally
is not limited to cases in which the
court, or the jury, is of the opinion
that there are palliating or mitigat-
ing circumstances. But it extends to
every case in which, upon a view
of the whole evidence, the jury is
of opinion that it would not be just
or wise to impose capital punish-
ment." This case was distinguished
in Johnson v. United States, 225 US
405, 56 LEd 1142, 32 SupCt 748.
See Sinclair v. District of Colum-
bia, 192 US 16, 48 LEd 322, 24
SupCt 212.
34 See Echols v. State, 109 Ga
508, 34 SE 1038.
In Hackett v. People, 8 Colo 390,
8 P 574, the jury after unsuccess-
fully attempting for some time to
reach an agreement, returned to
court and asked if they could in-
dorse on the verdict a recommenda-
tion of mercy. The court there-
upon gave them an additional writ-
ten instruction, telling them that
they could make such an indorse-
ment on their verdict if they so
desired. In a short time they re-
turned with an agreed verdict, to
which had been added the recom-
mendation of mercy. In holding the
§45
INSTRUCTIONS — RULES GOVERNING
148
held out by the court to expedite and assure the concurrence of
the jury in a verdict of guilty, and an extraneous influence pro-
hibiting1 the free exercise of the jury's prerogatives.35
§ 45. Coercing jury to reach agreement.
A trial judge has no authority, either by threats, intimidation,
undue urging, or inapt suggestion, to affect the fair, conscien-
tious, and impartial deliberations of the jury, or to influence the
conclusions they are to reach.
Coercion by the trial judge of the jury to reach an agreement
is forbidden. The fact-finding body of the mixed tribunal should
be as unhampered in the performance of their proper functions
as the judge is in his.36
action of the trial court to be fatal
error, it was said on appeal: "Thus
it appears that some of the jurors
were opposed to conviction for the
grade of crime finally found in their
verdict, and that they only con-
sented thereto upon condition that
the recommendation for mercy be
incorporated. They must have been
led to suppose from the court's an-
swer to their question, that this
might have weight in mitigating
the severity of the sentence to be
pronounced. Any other explanation
of the proceedings would be absurd;
and it must be assumed that without
such belief the verdict, as returned,
would not have been agreed upon."
35 In Territory v. Griego, 8 NM
133, 42 P 81, it appeared that after
the jury had been unsuccessfully
deliberating for fifty-four hours, the
court advised them by an additional
instruction that "While the law fixes
the punishment in the case, or,
rather, while the court assesses the
punishment, the law authorizes you,
in case you find the defendant guilty,
to recommend him to the mercy of
the court; and that recommendation
made by the jury will be considered
by the court in fixing the punish-
ment." In half an hour after such
charge had been given, the jury re-
turned with a verdict of guilty, with
recommendation of mercy. In set-
ting aside the conviction, the appel-
late court said:
"We think these recitals from the
record render it quite apparent that
the sudden agreement of the jury,
after being out and unable to agree
for fifty-four hours, was influenced
quite powerfully by the judge's in-
structions that a recommendation of
mercy would receive his considera-
tion in fixing punishment. It seems
within the range of reasonable prob-
ability that, with a knowledge that
nothing but the death penalty would
be the consequence of their verdict,
no agreement could have been se-
cured from the jury. The gravity
of the punishment may well have
caused jurors to hang to a doubt of
guilt rather than hang a man whose
guilt they doubted. Coming, as it
did, without request, after the jury
had been deliberating and unable to
agree for fifty-four hours, it was
an indication, quite pointed, of the
judge's opinion. * * * The judge
had no right to hold out any prom-
ises to the jury, much less one which
he could not lawfully fulfil." For
further consideration of the statute
involved in this case, see State v.
Carabajal, 26 NM 384, 193 P 406,
17 ALR 1098.
36 Federal. Chicago & E. I. Ry.
Co. v. Sellars, 5 F2d 31.
Alabama. Phoenix Ins. Co. v.
Moog, 81 Ala 335, 1 S 108.
Arkansas. St. Louis, L M. & S.
R. Co. v. Devaney, 98 Ark 83, 135
SW 802.
149
PROVINCE OP COURT AND JURY
§45
The trial judge may advise an unagreed jury of the impor-
tance of their reaching a verdict, if they can do so without
surrendering their conscientious convictions. But he cannot go
beyond that and say anything to the prejudice of either party.
There is no prescribed language that he must use in this con-
nection. What he may with propriety say must in a large meas-
ure be left to his good judgment. But as the exclusive right to
agree or not to agree rests with the jury, the judge must not by
threat or entreaty attempt to coerce a verdict or to exert his
authority to force an agreement ; nor must he under any circum-
stances or in any manner indicate the character of verdict that
the jury should return.37
Indiana. Terre Haute & I. R. Co.
v. Jackson, 81 Ind 19.
Iowa. Mt. Hamill State Sav. Bank
v. Hughes, 196 la 861, 195 NW 589.
Kansas. Alcorn v. Cudahy Pack-
ing Co., 125 Kan 493, 264 P 741;
Shouse v. Consolidated Flour Mills
Co., 128 Kan 174, 277 P 54, 64 ALR
606.
Minnesota. Mar v. Shew Pan Qui,
108 Minn 441, 122 NW 321, 133
AmSt 460.
Missouri. State v. Eatherly, 185
Mo 178, 83 SW 1081, 105 AmSt 567.
In State v. Alexander, 66 Mo 148,
the court said: "The jury are the
triers of the facts, and the court
has no more right to interfere with
them while considering their verdict,
except in open court, to discharge
them from time to time, or in the
presence of the accused and his
counsel, to instruct them as to the
law in the case, than the jury have
to invade the province of the court."
New York. McCarthy v. Odell,
202 AppDiv 784, 195 NTS 80.
North Carolina. Trantham v. Elk
Furn. Co., 194 NC 615, 140 SE 300.
Ohio. Zimmerman v. State, 42 Oh
App 407, 182 NE 354.
Pennsylvania. Di Santo v. Alper,
99 PaSuperCt 46.
Rhode Island. Petrarca v. Mc-
Laughlin, 75 RI 1, 62 A2d 877.
Tennessee. Chesapeake, 0. & S.
W. R. Co. v. Barlow, 86 Tenn 537,
8 SW 147.
Texas. Sunshine Oil Corp. v. Ran-
dals (TexCivApp), 226 SW 1090.
37 Colorado. Hutchins v. Haffner,
63 Colo 365, 167 P 966, LRA 1918A,
1008.
Connecticut. Wheeler v. Thomas,
67 Conn 577, 35 A 499.
Georgia. Henderson v. Reynolds,
84 Ga 159, 10 SE 734, 7 LRA 327
(where the court had threatened to
keep the jury together without food
until they reached a verdict).
Iowa. State v. Smith, 99 la 26,
68 NW 428, 61 AmSt 219; Shuck v.
Conway (la), 186 NW 858.
Kentucky. Sandefur v. Common-
wealth, 143 Ky 655, 137 SW 504.
Maine. Cowan v. Umbagog Pulp
Co., 91 Me 26, 39 A 340.
Michigan. Baker v. Mohl, 191
Mich 516, 158 NW 187; Holtquist v.
O'Connell, 196 Mich 484, 163 NW 53.
Minnesota. Converse v. Adleman,
153 Minn 306, 190 NW 340,
Mississippi. Maury v. State, 68
Miss 605, 9 S 445, 24 AmSt 291.
Missouri. In State v. Nelson, 181
Mo 340, 80 SW 947, 103 AmSt 602,
the court admonished the jury that
it was the third trial of the case,
that it was to the interest of so-
ciety, and of the defendant, and
of everybody, that a verdict be
reached, and the judge insisted that
an effort be made to make a ver-
dict, and in conclusion he ad-
vised them to "get together and
make a verdict." The action of the
trial court was held reversible error.
New York. People v. Sheldon, 156
NT 268, 50 NE 840, 41 LRA 644,
66 AmSt 564; Nalli v. Peters, 213
AppDiv 735, 211 NYS 411.
§45
INSTRUCTIONS — RULES GOVERNING
150
While there must be nothing in the conduct of the trial
judge toward the jury savoring of undue pressure or coercion
to reach a verdict, when the jury return into court and announce
their failure to agree, the court may impress upon them the im-
portance of agreeing, urge them to listen to argument and sacri-
fice the pride of personal opinion, and he may send them back
for further deliberation until such time as it becomes apparent
that hope of an agreement is futile.38
Pennsylvania. Girard Trust Co.
v. Page, 282 Pa 174, 127 A 458.
South Carolina. Terry v. Richard-
son, 128 SC 319, 116 SE 273.
South Dakota. In State v. Place,
20 SD 489, 107 NW 829, 11 AnnCas
1129, after the case was submitted,
the jury retired to deliberate at 9
o'clock P. M., and after remaining
out all night and all the next fore-
noon, they were brought into court
and the court inquired, "What seems
to be the matter?" to which the
foreman replied, "We are shy on
evidence/' The court stated that he
could not help them out on evidence,
but if it were matter of law he could
give them further instructions.
"But," he said, "you will have to
agree in this case, for I will keep
you together until you do agree." De-
fendant's counsel thereupon except-
ed to the remarks of the court to
the jury that he would keep them
together until they did agree. The
court replied in substance. "You
may have an exception, but I will
keep this jury together until they
do agree upon a verdict." All of
this occurred in the presence of the
jury who thereupon retired and soon
returned into court with a verdict
convicting the defendant. In setting
aside the conviction, the appellate
court remarked: "In this enlight-
ened age no one will contend that a
verdict should stand which does not,
at least presumptively, express the
free and deliberate judgment of
those who rendered it."
Texas. Fleck v. Missouri K. & T.
By. Go. (TexCivApp), 191 SW 386.
38 Alabama. Louisville & N. B.
Co. v. Johnson, 204 Ala 150, 85 S
372.
Arkansas. Johnson v. State, 60
Ark 45, 28 SW 792.
Georgia. Gambo v. Dugas & Son,
145 Ga 614, 89 SE 679.
Illinois. Brown v. Walker, 32 111
App 199.
Indiana. Churchill v. Woodruff,
66 IndApp 241, 118 NE 136.
Iowa. Delmonica Hotel Co. v.
Smith, 112 la 659, 84 NW 906.
Kansas. State v. Garrett, 57 Kan
132, 45 P 93.
Louisiana. State v. Dodoussat, 47
LaAnn 977, 17 S 685.
Minnesota. Watson v. Minne-
apolis St. By. Co., 53 Minn 551, 55
NW 742.
New York. Beversible error was
held to have occurred where the
court said to the jury: "Juries are
selected, not to disagree, but to
agree, and all this time has been
wasted unless the jury comes to an
agreement. It is not likely that we
will have in this county a jury as
competent and as impartial to try
this case as you are." McCarthy v.
Odell, 202 AppDiv 784, 195 NTS 80.
Ohio. Liska v. State, 115 OhSt
283, 152 NE 667; Bandy v. State,
13 OhApp 461, 32 OhCtApp 360;
Andrews v. State, 15 OhCirCt (N.
S.) 241, 23 OhCirDec 564, 57 OhBull
505; Akron St. B. Co. v. Dussel, 33
OhBull 98.
Pennsylvania, Knickerbocker Ice
Co. v. Pennsylvania B. Co., 253 Pa
54, 97 A 1051.
Texas. The court may charge the
jury to try further to reconcile their
differences and agree upon a verdict;
that he does not wish to coerce them,
but that it is in the interest of so-
ciety that they shall, if they can,
agree upon a verdict. Dow v. State,
31 TexCr 278, 20 SW 583.
151
PROVINCE OF COURT AND JURY
§45
The court is not authorized to tell the jury, at any stage
of the trial, that they must agree. The statement of a trial
judge to a disagreeing jury that they must arrive at a verdict,
or language from which such peremptory order is logically
inferred, is plain coercion and an invasion by the court of
the province of the jury.39 The trial court should not direct
such remarks or admonitions to the jury as will tend unduly
to hasten them in arriving at a verdict.40 A trial judge's
authority over the jury does not extend to the coercing of a
minority to agree with the majority merely in order to arrive
at a verdict. The individual jurors are entitled to their own
honest opinions as to the evidence in the case and the weight
they will give it, and it is error for the trial court to under-
take to sway them from their convictions. If the words of
the court are so indiscreet as to constitute threats, intimida-
tion, or disparagement of one or more jurors, there is no
doubt of their coercive and improper character.41
39 Kentucky. In Randolph v.
Lampkin, 90 Ky 551, 14 SW 538, 10
LRA 87, the court told the jury that
they must decide the case, and
added, "It is no credit to a man
merely because he has an opinion to
stubbornly stick to it."
Louisiana. State v. Ladd, 10 La
Ann 271.
Massachusetts. See Prince v.
Lowell Elec. Light Corp., 201 Mass
276, 87 NE 558.
Missouri. Fairgrieve v. Moberly,
29 MoApp 141.
In Brooks v. Barth, 98 MoApp 89,
71 SW 1098, the judge stated, among
other prejudicial things, that he had
no use for jurors who failed to
agree.
New York. In Katsidras v. Weber,
199 NTS 30, the court said to the
jury, "You will have to render a
decision in this case if I have to
keep you locked up all night."
Texas. Missouri, K. & T. By. Co.
v. Barber (TexComApp), 209 SW
394.
4°In McCombs v. Foster, 64
MoApp 613, after the jury in the
case had been deliberating quite a
long time the court had them
brought in and informed them that
he was obliged to leave town on an
early train on account of a family
affliction, and that they could stay
until next morning if they did not
sooner agree; later during the eve-
ning he sent for them several times
to inquire if they had reached an
agreement, and a few minutes be-
fore his train was due to leave he
sent the sheriff to tell the jury that
he was about to leave and for them
to report the prospect of a verdict;
shortly thereafter a verdict was
brought in which, upon appeal, was
set aside as having been coerced.
See Terry v. State, 50 TexCr 438,
97 SW 1043.
41 Federal. Chicago & E. I. Ey.
Co. v. Sellars, 5 F2d 31.
Arkansas. Southern Ins. Co. v.
White, 58 Ark 277, 24 SW 425.
California. Mahoney v. San Fran-
cisco & S. M. Ry. Co., 110 Cal 471,
42 P 968, 43 P 518.
Illinois. In Lively v. Sexton, 35
IllApp 417, it appeared that the
jury stood eleven to one when the
court sent for them and said:
"Gentlemen, you will retire and
further consider this case and I will
say that if there is a mistrial in
this case I shall inquire into it,
and if I find that any juror has stub-
bornly refused to do his duty or
wilfully tried to bring about a dis-
agreement so as to interfere with
§45
INSTRUCTIONS — RULES GOVERNING
152
It is not condemnatory conduct, however, for the trial
court to give a fair explanation of the duties of a disagreeing
jury, nor to say to them that a minority should weigh the
opinions of the majority and doubt the correctness of their
own.42 But it is not permissible for the court to threaten
the administration of justice, I will
send him to jail for contempt of
court." The judgment and verdict
were set aside on appeal.
Kansas. In Shouse v. Consoli-
dated Flour Mills Co., 128 Kan 174,
277 P 54, 64 ALR 606, the
trial court, on two separate occa-
sions, admonished the jury with re-
spect to agreeing, on the first of
which the judge said: "It isn't the
duty of any one juror to take an
obstreperous or ohstinate stand
when there are reasonable grounds
for minds to differ, and so hang the
jury." On the second occasion he
said: "I feel like you should en-
deavor to accommodate your views
or differences to others to come to
an understanding or agreement if it
can humanly be done." These re-
marks were held on appeal to have
been improper.
Michigan. People v. Engle, 118
Mich 287, 76 NW 502.
Minnesota. Gibson v. Minneapo-
lis, St. P. & S. S. M. Ry. Co., 55 Minn
177, 56 NW 686, 43 AmSt 482.
Missouri. In McPeak v. Missouri
Pacific Ry. Co., 128 Mo 617, 30 SW
170, the trial judge said: "Verdicts
are often reached in cases after
further consideration, by trying it
a little longer. I don't want to put
you gentlemen to any discomfort
unnecessarily; yet I think you ought
to look it over, and experience shows
that it frequently takes some little
time for jurors to get their minds
together. I trust and presume that
every juror is acting rationally in
this matter, and that nobody is act-
ing from a dogmatic spirit, merely
for the purpose of asserting his
opinion."
New York. In Twiss v. Lehigh
Valley R. Co., 61 AppDiv 286, 70
NYS 241, the court discoursed to a
disagreeing jury as follows : "I cer-
tainly hope that there are no stub-
born men on this jury. There ought
not to be * * :i". It is the only
case for a jury to be tried at this
term and in my judgment there
should not be a failure of this char-
acter * * *. If I were a juror,
and quite a large proportion of my
fellows were against me, and I was
standing out, and I thought that
they were honest and fair, the first
thing I would do would be to get
before a large looking-glass and
look at myself and see if I could not
find out what was the matter with
me."
Oregon. State v. Ivanhoe, 35 Or
450, 57 P 317.
42 United States. Allen v. United
States, 164 US 492, 41 LEd 528,
17 SupCt 154.
Federal. Lehigh Valley R. Co. v.
Allied Mach. Co., 271 F 900.
Alabama. State v. Blackwell, 9
Ala 79.
Georgia. Ball v. State, 9 GaApp
162, 70 SE 888.
Illinois. Madison Coal Co. v.
Beam, 63 IllApp 178.
Iowa. In State v. Richardson,
137 la 591, 155 NW 220, the trial
judge said: "Every juror should
listen to the arguments of other
jurors with a disposition to be con-
vinced by them, and if any of the
jury differ in their views of the evi-
dence from a larger number of their
fellow jurors, such difference of
opinion should induce the minority
to doubt the correctness of their
own judgments, and cause them to
scrutinize the evidence more closely
and to re-examine the grounds of
their opinion. Your duty is to de-
cide the issues of fact which have
been submitted to you, if you can
conscientiously do so. And, in con-
153
PROVINCE OP COURT AND JURY
45
to keep the jury together several days with only one meal a
day if they do not reach an agreement,43 or to tell them that
their meals will be furnished them at their own expense,44
or to threaten to take the jury to another county where the
judge is going to hold a term of court,45 or to state to the
jury: "Don't you undertake to fool me by coming in here
and saying that you have agreed to a mistrial. I should dis-
like to send such a good-looking body of men to jail, and
that is what I would have to do."46 The trial judge is without
legal authority either expressly or impliedly to suggest that
the jury compromise in order to arrive at an agreement. A
compromise verdict is necessarily the result of the sacrifice
by one or more jurors of their conscientious opinions in the
case for the sake of agreeing upon a verdict. If the com-
promise is the result of improper directions or coercion by
the trial court, the verdict will be vacated on appeal.47
ferring together, you should bear
in mind that the jury room is no
place for pride of opinion, nor for
espousing and maintaining in a
spirit of controversy either side of
a cause." But see Mt. Hamill State
Sav. Bank v. Hughes, 198 la 861,
195 NW 589.
Michigan. People v. Coulon, 151
Mich 200, 114 NW 1013.
Nebraska. Gebhardt v. State, 80
Neb 363, 114 NW 290.
New Hampshire. Whitman v.
Morey, 63 NH 448, 2 A 899.
North Carolina. Osborne v. Wilkes,
108 NC 651, 13 SE 285.
North Dakota. Lathrop v. Fargo-
Moorhead St. R. Co., 23 ND 246,
136 NW 88.
Pennsylvania. Darlington v. Al-
legheny City, 189 Pa 202, 42 A 112.
Washington. State v. Baker, 67
Wash 595, 122 P 335.
43 Fairbanks, Morse & Co. v.
Weeber, 15 ColoApp 268, 62 P 368;
Hancock v. Elam, 3 Baxt. (62 Tenn)
33.
44 Henderson v. Reynolds, 84 Ga
159, 10 SE 734, 7 LRA 327.
45 Spearman v. Wilson, 44 Ga 473.
46Fairey v. Haynes, 107 SC 115,
91 SE 976.
47 Arkansas. O'Neal v. Richard-
son, 78 Ark 132, 92 SW 1117.
Georgia. Alabama Great South-
ern R. Co. v. Daffron, 136 Ga 555,
71 SE 799, AnnCas 1912D, 438.
Massachusetts. Highland Foundry
Co. v. New York, N. H. & H. R. Co.,
199 Mass 403, 85 NE 437.
Michigan. Goodsell v. Seeley, 46
Mich 623, 10 NW 44, 41 AmRep 183.
Missouri. Edens v. Hannibal &
St. J. R. Co., 72 Mo 212; State v.
Nelson, 181 Mo 340, 80 SW 947,
103 AmSt 602.
Texas. In Gulf, C. & S. F. R. Co.
v. Johnson, 99- Tex 337, 90 SW 164,
the court said: "The fundamental
objection to such instructions is that
the law, in our opinion, prescribes
no rule for the court to lay down,
except that the jury are to find in
accordance with the truth as their
judgments, honestly applied to the
evidence, lead them to believe it
to be, or, as their oath expresses
it, 'that they will a true verdict
render according to the law * * *
and the evidence.* What preposses-
sions or inclinations of mind a juror
may surrender consistently with an
intelligent and conscientious dis-
charge of this duty is for him alone
to determine, for the reason that
it is his judgment the law seeks to
obtain, and he should be left to
form it uninfluenced by advice from
the court."
§46 INSTRUCTIONS — RULES GOVERNING 154
An Instruction that stresses the expense of a retrial has
a tendency to coerce the jury, and is reversible error, not-
withstanding a failure to make timely objection to the in-
struction.48
Where the jury shortly after retiring declared that they
could not reach a verdict, the trial judge did not coerce the
jury when he told them: "You have been out only an hour
or a little better which is not a long time. We are here to do
justice between the parties. If the very simple question of
fact at issue is not decided by you, it would have to be sub-
mitted to another jury. The court does not intend to take a
disagreement [at this time]."49
An instruction which tells a jury that it is their fault if
they fail to agree and which tells the minority that their con-
scientious conviction might be only a mistake in judgment,
together with the fact that the jury returned with a verdict
in a very short time, is sufficient to convince a reviewing court
that the instruction was prejudicially erroneous.50
§ 46. Private communications of the judge with the jury during
their deliberations.
No communication whatever ought to take place between the
trial judge and the jury after the cause has been submitted to
them by the instructions of the court, unless in open court and,
where practicable, in the presence of the attorneys in the case.
The public interest requires that litigating parties should
have nothing to complain of or suspect in the administration
of justice; and in order to prevent all jealousies and suspicions
as to the fairness of verdicts of juries it is necessary to consider
the judge as having no control over the case except in open court
in the presence of the parties and their counsel.51 The courts
4»In re Stern, 11 NJ 584, 95 A2d 43 NE 332; Mound City v. Mason,
593. 262 111 392, 104 NE 685.
49 Smith v. Campbell, 82 RI 204, Indiana. Deming v. State, 235
107 A2d 338. Ind 282, 133 NE2d 51. In Coolman
50Janssen v. Carolina Lbr. Co., v. State, 163 Ind 503, 72 NE 568,
137 WVa 561, 73 SE2d 12. it appeared that the jury sent a
sr Alabama. In Continental Cas- communication to the judge to the
ualty Co. v. Ogburn, 186 Ala 398, effect that they could not agree upon
64 S 619, the conduct of the judge a verdict, and the judge sent back
was held improper but not reversible word to them through the bailiff
error, because it did not appear that that he could not accept their dis-
the defendant had been prejudiced, agreement, and the appellate court
Georgia. Groce v. State, 147 Ga said that such communication was
672, 95 SE 234. grossly improper.
Illinois. Crabtree v. Hagenbaugh, Kentucky. Goode v. Campbell, 14
23 111 349, 76 AmDec 694; Chicago Bush (77 Ky) 75.
& A. R. Co. v. Robbins, 159 111 598,
155
PROVINCE OF COURT AND JURY
§46
agree upon this general rule ; but a division of opinion here be-
gins, having to do with the effect of the conduct of the trial judge
in improperly communicating with the jury after the case has
been submitted to them. On one side the view is enforced that
when such improper conduct is shown to the appellate court a re-
versal will be ordered without regard to the question as to the
effect it may have had on the rights of the complaining party, it
not being necessary to demonstrate that he was prejudiced.52 For
Massachusetts. Read v. Cam-
bridge, 124 Mass 567, 77 NE 516,
26 AmRep 690.
However in Whitney v. Common-
wealth, 190 Mass 531, 77 NE 516,
the improper conduct of the judge
was held not reversible error be-
cause it did not appear that the de-
fendant was prejudiced thereby.
Missouri. State v. Beedle (Mo),
180- SW 888.
New York. Watertown Bank &
Loan Co. v. Mix, 51 NY 55$.
Ohio. Kirk v. State, 14 Oh 511;
Campbell v. Beckett, 8 OhSt 210;
Jones v. State, 26 OhSt 208; Krie-
gers Cleaners & Dyers, Inc. v. Ben-
ner, 123 OhSt 482, 175 NE 857;
Hrovat v. Cleveland Ry. Co., 125
OhSt 67, 180 NE 549, 84 ALE 215;
Martin v. State, 12 OLA 173.
South Carolina. State v. Ashley,
121 SC 15, 113 SE 305 (where the
judge held a telephone conversation
with the foreman of the jury rela-
tive to the case while the jury were
deliberating) .
Texas. Quigley v. Gulf, C. & S.
F. R. Co. (TexCivApp), 142 SW 633.
Vermont. State v. Patterson, 45
Vt 308, 12 AmRep 200.
Washington. State v. Shutzler,
82 Wash 365, 144 P 284.
Wisconsin. Smith v. State, 51
Wis 615, 8 NW 410, 37 AmRep 845;
McBean v. State, 83 Wis 206, 53 NW
497; Barnard v. State, 88 Wis 656,
60 NW 1058.
52 Indiana. See Danes v. Pear-
son, 6 IndApp 465, 33 NE 976.
Mississippi. Lewis v. State, 109
Miss 586, 68 S 785.
Missouri. Berst v. Moxom, 163
MoApp 123, 145 SW 857.
New York. People v. Moore, 50
Hun 356, 3 NYS 159, 18 NY 1031,
20 NY 1; People v. Linzey, 79 Hun
23, 29 NYS 560; Jenss v. Harrod,
100 Misc 624, 166 NYS 958.
North Dakota. In State v. Mur-
phy, 17 ND 48, 115 NW 84, 16
AnnCas 1133, 17 LRA (N. S.) 609,
the court said: "The state urgently
insists that no prejudice could have
resulted from what was done or
said in the case, but we shall not
consider that question. However,
the fact that the foreman said that
he thought they could not agree
when the judge first spoke to them,
and that they did agree in five or
ten minutes thereafter, would be a
stubborn fact for consideration if
we entered upon an inquiry as to
the effect upon the jury of the words
spoken to them and the visit to the
room. We think that any communi-
cation in this way as to the case
should be prohibited and held prej-
udicial. It is against the policy of
the law to indulge in secret com-
munications or conferences with the
jury or with jurors in reference to
the merits or law of the case. To
determine in each case whether
prejudice resulted would be difficult,
if not impossible, and justice will be
better subserved by avoiding such
communications entirely. The au-
thorities are practically unanimous
in condemning such communications
and in holding them prejudicial as a
matter of law."
Texas. Dempster Mill Mfg. Co. v.
Humphries (TexCivApp), 189 SW
1110.
Washington. In State v. Wroth,
15 Wash 621, 47 P 106, the court
said: "In the discharge of his offi-
cial duty the place for the judge is
i46
INSTRUCTIONS — RULES GOVERNING
156
the attainment of the best administration of justice, the law
requiring that all proceedings of courts be open and public, and
in the presence of the parties or their representatives, must be
strictly enforced ; and, in case of any infringement of this policy,
parties are not to be put to the burden of showing that it in
fact injured them, even though it be manifest that no improper
motives prompted the acts complained of.53
Other courts are of opinion that the one complaining of im-
proper conduct or communication of the trial judge with the jury
during that body's deliberations must show that his rights have
been adversely affected thereby before reversible error will
be predicated thereon.54
on the bench. As to him, the law
has closed the portals of the jury
room, and he may not enter. The
appellant was not obliged to follow
the judge to the jury room in order
to protect his legal rights, or to see
that the jury was not influenced by
the presence of the judge; and the
state can not be permitted to show
what occurred between the judge
and the jury at a place where the
judge had no right to be, and in
regard to which no official record
could be made."
Wisconsin. Meier v. Morgan, 82
Wis 289, 52 NW 174, 33 AmSt 39;
Hurst v. Webster Mfg. Co., 128 Wis
342, 107 NW 666; Du Gate v.
Brighton, 133 Wis 628, 114 NW 103.
153 In Havener v. State, 125 Wis
444, 104 NW 116, 4 AnnCas 1052,
after the jury had retired for delib-
eration as to their verdict, they sent
a communication to the judge
through the bailiff, requesting him
to come before them for the purpose
of answering some inquiries con-
cerning the case. The judge re-
sponded by stepping into the door-
way of the jury room, and one of
the jurors propounded some ques-
tions to him. In reply the judge told
them that he could not answer their
questions, but that the instructions
given them fully covered the subject
of their inquiry, and that some of
the matters inquired about by them
were excluded from their considera-
tion by the instructions given. The
court also offered to read part of the
instructions, or to submit to them
the charge given. This conduct of
the judge was held reversible error.
54 Colorado. In Moffitt v. People,
59 Colo 406, 149 P 104, the court
said: "Unquestionably such conduct
on the part of the trial judge was
improper and merits severe criti-
cism, and, had it appeared that the
rights of the defendants were in
the least prejudiced, we would un-
hesitatingly reverse the case on that
ground. But, inasmuch as there is
no claim that their rights were in
any manner prejudicially affected,
and it clearly appears from the rec-
ord that they were not, we can not
reverse the case on this assignment."
Iowa. State v. Olds, 106 la 110,
76 NW 644.
Massachusetts. Whitney v. Com-
monwealth, 190 Mass 531, 77 NE
516.
New York. See People v. Pickert,
26 Misc 112, 56 NYS 1090.
South Carolina. State v. Nash,
51 SC 319, 28 SE 946.
Texas. Denison v. State, 49 TexCr
426, 93 SW 731. See Priest v. State
(Tex), 34 SW 611.
Virginia. See Philips v. Common-
wealth, 19 Gratt (Va) 485.
CHAPTER 3
SUBJECT-MATTER
Section
50. Pertinency of instructions to
issues and evidence.
51. Recapitulation of testimony.
52. Theories of case in civil actions.
53. Theories of case in criminal
prosecution.
54. Definition of terms in civil
cases.
55. Definition of terms in criminal
cases.
56. Limitation of purpose of evi-
dence,
57. Lower grade of offense.
58. Insanity of accused.
59. Reasonable doubt.
60. Good character as generating
reasonable doubt of guilt.
61. Burden of proof in civil cases.
62. Burden of proof and presump-
tion of innocence in crimi-
nal cases.
63. Circumstantial evidence in civil
cases.
64. Circumstantial evidence in crim-
inal cases.
65. Positive and negative testi-
mony.
66. Inferences from flight.
67. Confessions in criminal cases.
68. Credibility of witnesses — Inter-
est of witnesses — Falsus in
uno, falsus in omnibus.
69. Credibility of witnesses in
criminal cases — Interest of
witnesses — Falsus in uno,
falsus in omnibus.
70. Failure of party to testify in
his own behalf or call ma-
terial witness.
71. Failure of defendant in crim-
inal case to testify or call
witness or produce evidence.
72. Alibi in criminal cases.
73. Instruction to disregard testi-
mony erroneously received.
74. Argument of counsel.
75. Manner of arriving at verdict.
76. Form of verdict.
§ 50. Pertinency of instructions to issues and evidence.
It is the duty of the trial court, either on its own initiative
or because requested, to give instructions which are warranted
by the law and the evidence.
(1) Civil Cases. In general, the trial judge must give re-
quested instructions embodying the applicable law and sup-
ported by the evidence if not covered by other instructions.1
1 Federal. De Soto Motor Corp.
v. Stewart, 62 F2d 914.
Alabama. The charge should not
throw on the jury the duty to figure
out the issues for themselves.
Louisville & N. R. Co. v. Laney, 14
AlaApp 287, 69 S 993.
California. Tasker v. Cochrane,
94 CalApp 361, 271 P 503.
Colorado. Marsh v. Cramer, 16
Colo 331, 27 P 169.
Connecticut. Laukaitis v. Klikna,
104 Conn 355, 132 A 913; Lovell v.
Bridgeport, 116 Conn 565, 165 A 795.
District of Columbia. It is error
for the court to put before the jury
any consideration, outside the evi-
dence, that may influence them and
lead to a verdict not otherwise pos-
sible of attainment. Miller v. United
States, 37 AppDC 138.
157
§50
INSTRUCTIONS — RULES GOVERNING
158
This duty does not arise where the law, so far as applicable
to the facts, is clearly stated in other instructions.2
Idaho. Investors Mtg. Seeur. Co.
v. Strauss & Co., 50 Idaho 562, 298
P 678.
Illinois. Hill v. Ward, 2 Gilm. (7
111) 285; Johnson v. Hull, 199 IllApp
258; Anderson v. Decatur Ry. &
Light Co., 200 IllApp 646.
The court should not instruct on
the derangement of a testator's
mind as affecting his capacity to
make a will, where such is not an
issue made by the pleadings. Miller
v. Ahrbecker, 320 111 577, 151 NE
526.
The jury should be instructed on
the degree of care required. Mar-
golis v. Chicago City R. Co., 197
IllApp 316.
It was proper to refuse an instruc-
tion as to what was not the law as
to a matter not material to the
questions in controversy. Como-
rouski v. Spring Valley Coal Co., 203
IllApp 617.
Indiana. Conaway v. Shelton, 3
Ind 334; Pittsburgh, C., C. & St. L.
R. Co. v. Cottman, 52 IndApp 661,
101 NE 22; Chicago, I. & L. R. Co.
v. American Trust Co., 85 IndApp
193, 153 NE 419.
Kansas. St. Louis & S. F. R. Co.
v. Boyce, 5 KanApp 678, 48 P 949.
Kentucky. Louisville & N. R. Co.
v. Campbell, 237 Ky 182, 35 SW2d
26.
Massachusetts. Lincoln v. Finkel-
stein, 255 Mass 486, 152 NE 332.
Missouri. Coombes v. Knowlson,
193 MoApp 554, 182 SW 1040; Little
Bros. Co. v. G. Mathes Iron & Metal
Co. (MoApp), 223 SW 952.
In Kessler v. West Missouri Power
Co., 221 MoApp 644, 283 SW 705,
it -was said that the instructions
must be within the purview of both
the pleadings and the evidence and
not broader than either.
Nebraska. First Nat. Bank v.
Carson, 30 Neb 104, 46 NW 276;
Crosby v. Ritchey, 56 Neb 336, 76
NW 895.
New York. Trulock v. Kings
County Iron Foundry, 216 AppDiv
439, 215 NYS 587; Trbovich v.
Burke, 234 AppDiv 384, 255 NYS
100.
Ohio. Cleveland, C., C. & St. L.
Ry. Co. v. Potter, 113 OhSt 591, 150
NE 44; Beck v. Beagle, 28 OhApp
508, 162 NE 810.
Oklahoma. Fisk v. Ellis, 133 Okl
43, 271 P 158; Williams v. Otis, 155
Okl 173, 8 P2d 728.
Tennessee. Kendrick v. Cisco, 13
Lea (81 Tenn) 247.
Texas. Pecos & N. T. Ry. Co. v.
Chatten (TexCivApp), 185 SW 911;
Scott v. Northern Texas Trac. Co.
(TexCivApp), 190 SW 209; South-
ern Trac. Co. v. Jones (TexCivApp),
209 SW 457.
Under the Texas Code it is imma-
terial whether the instructions are
embodied in a general charge or in
one specially presented to and
adopted by the court. Steiner v.
Anderson (TexCivApp), 130 SW 261.
Vermont. Vaughan v. Porter, 16
Vt 266; Rowell v. Vershire, 62 Vt
405, 19 A 990, 8 LRA 708.
Washington. In an action for the
wrongful removal by a city of a lat-
eral support in regarding a street,
it was held error to instruct that
private property could not be taken
for public use without just compen-
sation. Hamm v. Seattle, 140 Wash
427, 249 P 778.
2 Federal. Taylor v. Continental
Supply Co., 16 F2d 578; Ocean Ace.
& Guarantee Corp., Ltd. v. Turner,
55 F2d 654.
Alabama. Scott v. Louisville &
N. R. Co., 217 Ala 255, 115 S 171.
California. Higgins v. Williams,
114 Cal 176, 45 P 1041; Rystrom v.
Sutter Butte Canal Co., 72 CalApp
518, 249 P 53; Dennis v. Orange, 110
CalApp 16, 293 P 865; De Nardi v.
Palanca, 120 CalApp 371, 8 P2d 220.
Georgia. In an action to set aside
a conveyance from husband to wife
on the ground of fraudulent design
to defeat creditors, though a charge
was given basing the right to have
the conveyance set aside on knowl-
159
SUBJECT-MATTER
§50
As to whether the instructions must be confined to issues
raised by both the pleadings and the evidence, the courts are
not in agreement. In some states, the instructions are con-
fined within the issues as made by the pleadings, regardless
of what the evidence may be;3 while in others the rule is
stated that whatever may be shown by the pleadings, it is
still necessary that a proposed instruction have support in
the evidence, or it is not proper for the court to give it.4 Some
edge by the "party taking" of the
fraudulent intent of the grantor, it
was held error not to give the de-
fendant's requested instruction that
the conveyance could not be an-
nulled if the wife had no knowledge
of the fraudulent intent of the hus-
band to defeat his creditors. Rowe
v. Cole, 176 Ga 592, 168 SE 882.
Indiana. Funk v. Bonham, 204
Ind 170, 183 NE 312; Chesapeake &
0. R. Co. v. Fultz, 91 IndApp 639,
161 NE 835.
Iowa. In re Butterbrodt's Estate,
201 la 871, 208 NW 297.
Kentucky. Clore v. Argue, 213
Ky 664, 281 SW 1005; Coleman v.
Nelson, 224 Ky 460, 6 SW2d 454;
Summers v. Spivey's Admr., 241 Ky
213, 43 SW2d 666; McGraw v. Ayers,
248 Ky 166, 58 SW2d 378.
Massachusetts. Freese v. Spauld-
ing, 255 Mass 243, 151 NE 91; Buck-
ley v. Frankel, 262 Mass 13, 159 NE
459.
Missouri. Reith v. Tober (Mo),
8 SW2d 607; Heath v. Missouri
Candy Co. (MoApp), 286 SW 157.
New Jersey. Napier Hat Mfg.
Co. v. Essex County Park Comm.
(NJL), 164 A 484.
North Dakota. Motley v. Stand-
ard Oil Co., 61 ND 660, 240 NW 206.
Ohio. Bartson v. Craig, 121 OhSt
371, 169 NE 291; Romeo v. State,
39 OhApp 309, 177 NE 483, 34 OLR
150'.
Oklahoma. Marland Ref. Co. v.
Snider, 125 Okl 260, 257 P 797;
Sheean v. Walden, 130 Okl 51, 265
P 141.
Oregon. Hill v. Wood, 142 Or 143,
19 P2d 89.
Texas. Joyce v. Texas Power &
Light Co. (TexCivApp), 298 SW
627; Galveston, H. & S. A. Ry. Co.
v. Mallott (TexGivApp), 6 SW2d
432.
Vermont. In re Moxley's Will,
103 Vt 100, 152 A 713.
Washington. Ekeberg v. Tacoma,
142 Wash 240, 252 P 915; Hirst v.
Standard Oil Co., -145 Wash 597,
261 P 405; Comfort v. Penner, 166
Wash 177, 6 P2d 604.
3 Arizona. Lutfy v. Lockhart, 37
Ariz 488, 295 P 975.
Missouri. Krelitz v. Calcaterra
(Mo), 33 SW2d 909.
West Virginia. Johnson v. Haw-
kins, 110 WVa 199, 157 SE 412.
4 Federal. Lynch v. United States,
73 F2d 316.
Arkansas. It is the duty to refuse
instructions on matters not in issue.
Nat. Fruit Products Co. v. Garrett,
121 Ark 570, 181 SW 926.
Colorado. Reeves v. Currier, 60
Colo 594, 155 P 320.
Connecticut. Brown v. Page, 98
Conn 141, 119 A 44.
It is a familiar principle of law
that it is the duty of <^the trial
court to give the jury such instruc-
tions as are correct in law, adapted
to the issues, and sufficient for its
guidance in the determination of the
issues upon the evidence and upon
the ultimate facts as they may
reasonably be found to be established
by the evidence. Warner v. McLay,
92 Conn 427, 103 A 113.
Florida. Seaboard Air Line R.
Co. v. Kay, 73 Fla 554, 74 S 523.
Georgia. King v. Luck Illustrat-
ing Co., 21 GaApp 698, 94 SE 890.
It is not enough to recite con-
tentions of the pleadings. Newton
v. Seaboard Airline Ry. Co., 17
GaApp 624, 87 SE 908.
§50
INSTRUCTIONS — RULES GOVERNING
160
state the rule as the duty of a judge to instruct the jury
upon every point pertinent to the pleadings and supported by
the evidence,5 Finally, a few courts state that it is error to
instruct on a matter as to which there is no issue made by
the pleadings or by the evidence.6 It is undoubtedly true
that a court often states the rule broadly without realizing that
it may make a difference.
Illinois. Liechtenstein v. L. Fish
Furn. Co., 272 III 191, 111 NE 729,
AnnCas 1918A, 1087; Fritz v. F. W.
Hochspeier Co., 287 111 574, 123' NE
51; People v. True, 314 111 89, 145
NE 198.
Iowa. Flanders v. Monroe, 172 la
347, 154 NW 586; Garvey v. Boody-
Holland & New, 176 la 273, 155 NW
1027; Conner v. Henry, 201 la 253,
207 NW 119.
Kentucky. Bell v. North, 4 Litt.
(14 Ky) 133.
Maine. Arthur E. Guth Piano Co.
v. Adams, 114 Me 390, 96 A 722;
Smith v. Tilton, 116 Me 311, 101
A 722.
Maryland. Fast v. Austin, 135
Md 1, 107 A 540.
Massachusetts. Poorva v. Weis-
berg, 286 Mass 526, 190 NE 804.
Michigan. In re Keene's Estate,
189 Mich 97, 155 NW 514, AnnCas
1918E, 367.
Missouri. Gately Outfitting Co.
v. Vinson (MoApp), 182 SW 133.
Nebraska. Kimball v. Lanning,
102 Neb 63, 165 NW 890.
North Carolina. Langley v. Misen-
heimer, 177 NC 538, 99 SE 367.
Ohio. Acklin Stamping Co. v.
Kutz, 98 OhSt 61, 120 NE 229, 14
ALR 812.
Oklahoma. Holmboe v. Neale, 69
Okl 183, 171 P 334.
It is not error to instruct as to
nature of pleadings. Shawnee-Te-
cumseh Trac. Co. v. Newcome, 59
Okl 271, 158 P 1193.
Pennsylvania. Pennsylvania R.
Co. v. Zebe, 33 Pa 318.
Texas. Southern Trac. Co. v. Dil-
lon (TexCivApp), 199 SW 698; Gulf
Pipe Line Co. v. Hurst (TexCivApp),
230 SW 1024.
Virginia. Lynchburg Tel. Co. v.
Booker, 103 Va 594, 50 SE 148;
Carpenter v. Smithey, 118 Va 533,
88 SE 321.
Washington. Hoffman v. Wat-
kins, 89 Wash 661, 155 P 159.
5 Alabama. Britling Cafeteria Co.
v. Irwin, 229 Ala 687, 159 S 228.
California. Martin v. Pacific Gas
& Elec. Co. (CalApp), 255 P 284;
Smith v. Hale, 3 CalApp2d 277, 39
P2d 445.
Connecticut. Ennis v. Clancy, 106
Conn 511, 138 A 432.
Illinois. Clark v. Public Service
Co., 278 IllApp 426 (instruction
should not be abstract).
Kentucky. Prestonsburg v. Mel-
lon, 220 Ky 808, 295 SW 1064;
Suter's Admr. v. Kentucky Power
& Light Co., 256 Ky 356, 76 SW2d
29.
Missouri. Allen v. Missouri Paci-
fic R. Co. (Mo), 294 SW 80; Ben-
nett v. National Union Fire Ins. Co.
(MoApp), 80 SW2d 914.
Texas. Texas General Utilities
Co. v. Nixon (TexCivApp), 81 SW2d
250.
Washington, Kane v. Lindsey, 143
Wash 61, 254 P 461.
Wisconsin. Madison Trust Co. v.
Helleckson, 216 Wis 443, 257 NW
691, 96 ALR 992.
6 Sisters of St. Joseph v. Ed-
wards (Ariz), 44 P2d 155; Osen-
baugh v. Virgin & Morse Lbr. Co.
(Okl), 46 P2d 952.
One court has stated that a charge
is tested by the claims of proof
advanced by the parties and not
by the evidence. Lopes v. Connecti-
cut Light & Power Co., 145 Conn
313, 192 A2d 135.
161 SUBJECT-MATTER § 50
Whether requested by a party or not, it is the duty of the
trial judge to instruct the jury on each issue presented by the
pleadings and evidence.7 However, there is no duty to instruct
upon matters which are not really issues because admitted or
conceded, or about which no question is made*8 Nor is the
court required to instruct as to issues of fact involving common
experience or understanding of the average man.9
Each party is entitled to have the court present his theory
of the issues to the jury by proper instructions.10 Instructions
requested by a plaintiff, if they correctly enunciate the law and
apply to the facts concerning which evidence was submitted,
are not to be refused merely because they do not correspond
with the theories of the defendant. ' ! The defendant is entitled
to an affirmative charge as to every defense raised by the plead-
ings and the evidence.12 But where instructions have been
given covering the issues and theories of the parties, it is not in-
cumbent upon the court to give further instructions that are the
antithesis of those given. 1 3
Abstract instructions. The court should not give an in-
struction that would allow the jury to formulate their verdict
from abstract notions of what is right between man and man. ' 4
Abstract propositions should in no event be submitted to the
7 Michigan. Jorgensen v. How- the pleading and the proof the court
land, 325 Mich 440, 38 NW2d 906. should submit the issue of facts,
Nebraska. McKain v. Platte Val- which position, however, was not to
ley Public Power & Irr. Dist., 151 be taken for all it imported.
Neb 497, 37 NW2d 923 ; Thurnow v. 0 Illinois. See also Catt v. Rob-
Schaeffer, 151 Neb 651, 38 NW2d ins, 305 111 76, 137 NE 101 (impair-
732. nient of mental faculties by exces-
Oklahoma. Vogel v. Rushing sive and habitual use of intoxi-
(Okl), 212 P2d 665. cants).
8 Indiana. Southern R. Co. v. Iowa. Bailey v. LeMars, 189
Weidenbrenner, 61 IndApp 314, 109 la 751, 179 NW 73.
NE 926. Texas. Kansas City, M. & 0. Ry.
Massachusetts. Altavilla v. Old Co. v. Starr (TexCivApp), 194 SW
Colony St. R. Co., 222 Mass 322, 637.
110 NE 970. * ° Clinchfield Coal Corp. v. Comp-
Missouri. Edwards v. Schreiber, ton, 148 Va 437, 139 SE 308, 55 ALR
168 MoApp 197, 153 SW 69. 1376.
Ohio. Schlickling v. Post Publish- * l Lowe v. Huckins, 356 111 360,
ing Co., 115 OhSt 589, 155 NE 143. 190 NE 683.
Oregon. Vale v. Campbell, 123 Or ' 2 Southland Life Ins. Co. v. Dunn
632, 263 P 400. (TexCivApp), 71 SW2d 1103.
Washington. See also Burlie v. I3 Best v. Atchison, T. & S. F. R.
Stephens, 113 Wash 182, 193 P 684. Co. (MoApp), 76 SW2d 442; Hill v.
In Galanena v. Ragan, 182 Wash Wilson, 123 Or 193, 261 P 422.
659, 47 P2d 1021, the court said « 4 Pierson v. Smith, 211 Mich 292,
that if there was a variance between 178 NW 659.
§ 50 INSTRUCTIONS — RULES GOVERNING 162
jury where their effect reasonably will be to confuse or mislead
the jury.18
nitrations. The court is without authority to instruct
so that the jury may allow damages not claimed in the plead-
ings.86 An allegation in the pleading that defendant "f ailed
to exercise due care in avoiding colliding with plaintiff" is too
general to warrant its submission to jury as a charge of
negligence.17 If contributory negligence has not been pleaded,
it is proper for the court to give no instruction as to such
defense.48 Where only a part of the statements of an article
claimed to be libelous were relied upon in the pleadings, it
was error for the court to require the defendant to prove the
truth of every statement in the article as a justification.19
It is improper to instruct as to the statute of frauds in an
action where the complaint discloses a contract not within the
statute and the answer did not set up the statute as a de-
fense.20 A request that the court instruct as to whether the
proper parties were joined in a suit is rightly refused, as this
question is one for determination as part of the procedure
and not within the legitimate scope and purpose of instruc-
tions.28
(2) Criminal Cases. Abstract instructions should not be
submitted to the jury where their effect may confuse or mislead
the jury.22
1 5 Colorado. Denver v. Stutzman, 20 Magee v. Winn, 52 Idaho 553,
95 Colo 165, 33 P2d 1071. 16 P2d 1062.
Iowa. Deweese v. Iowa Transit 2I Worcester City Missionary Soc.
Lines, 218 la 1327, 256 NW 428. v. Memorial Church, 186 Mass 531,
Ohio. Hurlbut v. Jones, 84 OhSt 72 NE 71.
457, 95 NE 1150. 22 Federal. Roberts v. United
'sWarfield Natural Gas Co. v. States, 126 F 897.
Hall, 254 Ky 805, 72 SW2d 417; Alabama. Wingard v. State, 26
Nash v, Searcy, 256 Ky 234, 75 AlaApp 383, 161 S 107.
SW2d 1052; Tiedke Bros. Co. v. Wil- Arizona. Woodson v. State, 30
Hams, 13 OhCirCt (N. S.) 58, 23 Ariz 448, 247 F 1103.
OhCirDec 175; Cincinnati Trac. Co. Colorado. If there is sufficient
v. Wooley, 4 ONP (N. S.) 122, 6 direct evidence to sustain a convic-
ONP (N. S.) 444, 17 OhDec 19; tion of the accused, it is not error
Bader v. Columbus, B. L. & N. Trac. to decline to instruct on circum-
Co., 5 ONF (N. S.) 495, 17 OhDec stantial evidence. Gavin v. Feople,
143. 79 Colo 189, 244 P 912.
1 7 Sparks v. Long, 234 la 21, 11 Georgia. Since there is no prac-
NW2d 716. tical distinction between principals
18 Nance v. Lansdell (MoApp), in the first and second degrees, there
73 SW2d 346. is no error in the failure to charge
Contra, Cincinnati Trac. Co. v. on the law in reference to the con-
Young, 115 OhSt 160, 152 NE 666. viction of a principal in the second
1 9 Louisville Times Co. v. Lyttle, degree. Brown v. State, 26 GaApp
257 Ky 132, 77 SW2d 432. 189, 105 SE 723.
163
SUBJECT-MATTER
§50
A requested charge in a criminal case which correctly states
the law should not be given if no point has arisen in the case
to which it can be applied.23 No instruction should be given
in criminal trials that is not pertinent to the issues.24 And
if the defendant's theory and testimony are so completely dis-
proved by the physical facts that it would be utterly unreason-
able to attach any credence to them, the court need not charge
upon such theory and evidence.25 It is error for the charge to
permit conviction for aiding and abetting a murder when the
indictment named no other person than the defendant as partici-
pating in the crime in any capacity.26 It is the judge's
duty accurately to state the law applicable to the case so that
the jury may have clear and intelligent notions of what they
are to decide,27 and this duty is especially imperative where the
evidence on material questions is sharply conflicting and the
question of liability close.28 Where the defense in a liquor
Idaho. State v. Cox, 55 Idaho 694,
46 P2d 1093.
Illinois. People v. Parks, 321 111
143, 151 NE 563.
It is error to instruct in a rape
case that a conviction could be re-
turned on circumstantial evidence
where all the evidence in the case
was direct. People v. Braidman, 323
111 37, 153 NE 702.
Indiana. Parker v. State, 136
Ind 284, 35 NE 1105; Campbell v.
State, 197 Ind 112, 149 NE 903.
Kentucky. Heilman v. Common-
wealth, 84 Ky 457, 1 SW 731, 4 Am
St 207; Anderson v. Commonwealth,
211 Ky 726, 277 SW 1008.
Louisiana. It is improper to give
an instruction embodying only an
abstract legal proposition, even
though the statement of the law be
correct. State v. Harris, 166 La 759,
117 S 820.
Missouri. State v. Harris, 232 Mo
317, 134 SW 535; State v. Starr, 244
Mo 161, 148 SW 862.
New Mexico. The court should
instruct that part of those jointly
indicted may be convicted and the
others acquitted. State v. Ward, 30
NM 111, 228 P 180.
Ohio. Sydell v. State, 17 OhApp
418.
Texas. Teel v. State, 104 TexCr
368, 283 SW 834; Banners v. State,
104 TexCr 442, 284 SW 554.
Virginia. Ellison v. Common-
wealth, 130 Va 748, 107 SE 697
(should instruct on aiding and abet-
ting).
Washington. If intoxication is
not denied, it is not necessary for
the court to define the term in its
charge. Tenino v. Hyde, 138 Wash
251, 244 P 550.
West Virginia. State v. Manns,
48 WVa 480, 37 SE 613.
23 State v. Capaci, 179 La 462,
154 S 419.
24 California. People v. Allen,
138 CalApp 652, 33 P2d 77.
Kentucky. Payne v. Common-
wealth, 255 Ky 533, 75 SW2d 14.
Oklahoma. Sullivan v. State, 56
OklCr 250, 37 P2d 655.
28 Williams v. State, 56 OklCr 147,
35 P2d 282.
26Pelfry v. Commonwealth, 255
Ky 442, 74 SW2d 913.
27 California. People v. Speraic,
87 CalApp 724, 262 P 795.
Iowa. Owen v. Owen, 22 la 270;
Blades v. Des Moines City R. Co.,
146 la 580, 123 NW 1057.
Kansas. State v. Gaunt, 98 Kan
186, 157 P 447.
28 People v. Gray, 251 111 431, 96
NE 268; Chicago & E. I. R. Co. v.
Garner, 83 HIApp 118; People v.
Johnson, 150 IllApp 424; Gorey v.
Illinois Cent. R. Co., 153 IllApp 17;
Bartholomew v. Illinois Valley R.
§51
INSTRUCTIONS — RULES GOVERNING
164
prosecution was entrapment, the accused is entitled to an
instruction as to such defense;29 and, in general, the defendant
in a criminal case is entitled to affirmative instructions as to any
defensive theory raised by the evidence.30
If the defense in a criminal case is fully covered by the
court's instructions as to the prosecution's theory, the negative
of which is easily understood, it is not necessary for the court
to accede to the defendant's request for an affirmative charge
as to such defense.31
§ 51* Recapitulation of testimony.
The extent to which a trial judge recapitulates the testimony
is a matter entirely within his discretion.
Although the court must state the questions presented to
the jury and the applicable law, recapitulating the testimony
presented during the trial is a matter of discretion. This rule
applies to both civil and criminal cases.32 The cases on the
appellate level are concerned with whether or not the trial judge
has abused that discretion either by refusing to recapitulate the
evidence or by recapitulating in an improper manner.
Co., 154 IllApp 512; Witt v. Galle-
more, 163 IllApp 649; Kirschner v.
Kirschner, 169 Okl 129, 36 P2d 297;
Skaggs v. Gypsy Oil Co., 169 Okl
209, 36 P2d 865.
29Driskill v. United States, 24
P2d 525. But see French v. State,
149 Miss 684, 115 S 705.
30 Idaho. State v. White, 46 Idaho
124, 266 P 415.
Illinois. People v. Egan, 331 111
489, 163 NE 357.
Oklahoma. Scott v. State, 40 Okl
Cr 296, 268 P 312.
Texas. Patterson v. State, 109
TexCr 521, 5 SW2d 993.
31 Duvall v. Commonwealth, 225
Ky 827, 10l SW2d 279.
32 Federal. Bu-Vi-Bar Petroleum
Corp. v. Krow, 47 F2d 1065.
Connecticut. Murphy v. Connecti-
cut Co., 84 Conn 711, 81 A 961.
Maine. Virgie v. Stetson, 73 Me
452.
Massachusetts. Doherty v. Phoe-
nix Ins. Co., 224 Mass 310, 112 NE
940; Mclntire v. Leland, 229 Mass
348, 118 NE 665; Sawyer v. Wor-
cester Consol. Street R. Co., 231
Mass 215, 120 NE 404.
Michigan. Bauman v. Pere Mar-
quette Boom Co., 66 Mich 544, 33
NW 538.
New Hampshire. Rollins v. Var-
ney, 22 NH 99.
New Jersey. Drummond v.
Hughes, 91 NJL 563, 104 A 137; Van
Sciver v. Public Service R. Co., 96
NJL 13, 114 A 146.
New York. Smith v. Gray, 19
AppDiv 262, 46 NYS 180; People v.
Sisto, 174 AppDiv 532, 161 NYS 108.
North Carolina. State v. Smith,
183 NC 725, 110 SE 654.
Unless there be some reason why
the judge should remark particularly
on the testimony of a witness, he
may, with propriety, decline to com-
ply with a request to do so. Findly
v. Ray, 50 NC 125.
Where the facts in a criminal case
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. State v.
Beard, 124 NC 811, 32 SE 804.
Ohio. Morgan v. State, 48 OhSt
371, 27 NE 710; Fugman v. Trostler,
24 OhCirCt (N. S.) 521, 34 OhCir
Bee 746.
165
SUBJECT-MATTER
§51
Where there is only one question of fact in a case and the
question is clearly stated to the jury, it is unnecessary, ordinarily,
for the court to recapitulate the evidence and comment on
corroborating circumstances, unless requested to do so.33 In
jurisdictions, as in Georgia, where the defendant is permitted
to make a statement, and does so, but introduces no other evi-
dence, the court, while stating the facts relied upon by the
state, is not required to state the facts relied upon by the
defendant.34 If there is no evidence of a p-articular point, it
is unnecessary for the court to inform the jury of that fact.35
If the judge undertakes to restate the evidence, the restate-
ment must be accurate, and any material misstatement will be
ground for exceptions by the injured party.36 If the judge
recapitulates the evidence on one side, he should, in fairness,
recapitulate it on the other side also.37 The evidence should
be stated in a way not to mislead and confuse the jury.38 It
may not be demanded of the judge that he shall single out
some particular portion of the evidence for special comment and
remark.39
Oregon. De War v. First Nat.
Bank, 88 Or 541, 171 P 1106 (no
duty); State v. Newlin, 92 Or 589,
182 P 133.
Pennsylvania. Commonwealth v.
McCl-skey, 273 Pa 456, 117 A 192;
Gentile v. McLaughlin, 107 PaSuper
Ct 489, 164 A 71.
It is sufficient for the court in its
charge to give the jury a general
review of the evidence which fairly
and adequately presents the respec-
tive contentions of the state and of
defendant with only enough refer-
ence to the items of evidence to as-
sist the jury in recalling it as a
substantial whole and to appreciate
its bearing. Commonwealth v.
Kaiser, 184 Pa 493, 39 A 299.
Texas. Undisputed facts may not
be submitted as issuable. Pullman
Co. v. Custer (TexCivApp), 140 SW
847.
Washington. State v. Hankins, 93
Wash 124, 160 P 307.
Wisconsin. The mere refusal to
state certain facts to the jury,
though undisputed, is not ground
for reversal Brickley v. Walker,
68 Wis 563, 32 NW 773.
The court may properly mention
the evidence bearing on a con-
troversy, speaking of it correctly
and in case of conflict, without sug-
gesting the effect thereof. Holway
v. Sanborn, 145 Wis 151, 130 NW 95.
33Lauer v. Yetzer, 3 PaSuperCt
461.
34 Ray v. State, 38 GaApp 202,
143 SE 603.
35 Central of Georgia R. Co. v.
Bagley, 173 Ala 611, 55 S 894;
Louisville <fe N. R. Co. v. Moorer,
195 Ala 344, 70 S 277; Birmingham
Ry., Light & Power Co. v. Milbrat,
201 Ala 368, 78 S 224; Southern
R. Co. v. Hobson, 4 AlaApp 408, 58
S 751; Neale v. McKinstry, 7 Mo
128.
3 ® New Jerusalem Church v.
Crocker, 7 OhCirCt 327, 4 OhCirDec
619; Scott v. McGroarty, 48 RI 79,
135 A 481.
37 Federal. United Commercial
Travelers v. Tripp, 63 F2d 37.
Alabama. Lamar v. King, 168
Ala 285, 53 S 279,
Iowa. See also Hanson v. Ana-
mosa, 177 la 101, 158 NW 591.
38 State v. Overson, 55 Utah 230,
185 P 364; Jones* Admr. v. Rich-
mond, 118 Va 612, 88 SE 82.
39Federal. See Stilson v. United
States, 250 US 583, 63 LEd 1154, 40
SupCt 28.
52
INSTRUCTIONS — RULES GOVERNING
166
In some jurisdictions, for example, North Carolina, the judge
is required to state in a full and correct manner the evidence in
the case, but he need state only so much as is necessary in order
to aid the jury in reaching a conclusion upon the issues. It is
therefore unnecessary to recapitulate the testimony a second
time.40
§ 52. Theories of case in civil actions.
Each party to a cause of action is entitled to have his theory
submitted to the jury where supported by the evidence and the
pleading.
A party is entitled to have the jury instructed with reference
to his theory of the case, when the pleadings present the theory
as an issue and it is supported by competent evidence.41 If the
Connecticut. Murphy v. Connecti-
cut Co., 84 Conn 711, 81 A 961;
Bjorkman v. Newington, 113 Conn
181, 154 A 346.
Florida. Southern Utilities Co. v.
Matthews, 84 Fla 30, 93 S 188.
Georgia. Savannah Elec. Co. v.
Johnson, 12 GaApp 154, 76 SE 1059;
Rushin v. Massey, 25 GaApp 82, 102
SE 456; Salios v. Swift, 25 GaApp
96, 102 SE 869.
The instruction on the theory
should be given though the undis-
puted evidence may show that for
some other reason the plaintiff is
not entitled to recover on that par-
ticular contention. Hines v. McCook,
25 GaApp 395, 103 SE 690.
Idaho. Jones v. Caldwell, 20
Idaho 5, 116 P 110, 48 LRA (N. S.)
119.
Illinois. Bernier v. Illinois Cent.
R. Co., 296 111 464, 129 NE 747;
Casey v. Grand Trunk Western R.
Co., 165 IllApp 108; Ridinger v.
Toledo, P. & W. R. Co., 168 IllApp
284; Lurie v. Rock Falls, 237 IllApp
334; Pittman v. Duggan, 336 IllApp
502, 84 NE2d 701; Abbs v. Rob Roy
Country Club, 337 IllApp 591, 86
NE2d 412.
Indiana. Southern Indiana Ry.
Co. v. Peyton, 157 Ind 690, 61 NE
722; New York, C. & St. L. R. Co.
v. First Trust & Sav. Bank, 198 Ind
376, 153 NE 761; Lavengood v.
Lavengood, 225 Ind 206, 73 NE2d
Massachusetts. Dahill v. Booker,
140 Mass 308, 5 NE 496, 54 AmRep
465.
Pennsylvania. Commonwealth v.
Durlin, 75 PaSuperCt 260; Com-
monwealth v. Wilson, 76 PaSuperCt
147.
40 Aston v. Craigmiles, 70 NC
316. See also Ball-Thrash Co. v.
McCormack, 172 NC 677, 90 SE 916.
41 Federal. Fernald v. Boston &
M. R. R., 62 F2d 782.
Alabama. Birmingham Ry., Light
& Power Co. v. Camp, 161 Ala 456,
49 S 846; Lamar v. King, 168 Ala
285, 53 S 279; Dwight Mfg. Co. v.
Word, 200 Ala 221, 75 S 979; Mo-
bile Light & R. Co. v. Logan, 213
Ala 672, 106 S 147.
Arizona. Morenci Southern R.
Co. v. Monsour, 21 Ariz 148, 185 P
938.
Arkansas. Cain v. Songer, 176
Ark 551, 3 SW2d 315.
California. Miner v. Dabney-
Johnson Oil Corp., 219 Cal 580, 28
P2d 23; Tognazzini v. Freeman, 18
CalApp 468, 123 P 540; Carey v.
Pacific Gas & Elec. Co., 75 CalApp
129, 242 P 97; Cassinelli v. Bennen,
110 CalApp 722, 294 P 748; Cole v.
Ridings, 95 CalApp2d 136, 212 P2d
597.
Colorado. Rocky Mountain Fuel
Co. v. Bakarich, 66 Colo 275, 180 P
754; Davies v. Everett, 72 Colo 104,
209 P 799.
167
SUBJECT-MATTER
§52
685; Baltimore & 0. R. Co. v. Peck,
53 IndApp 281, 101 NE 674.
Iowa. Clement v. Drybread, 108
la 701, 78 NW 235; Burris v. Titzell,
189 la 1322, 177 NW 557, 179 NW
851 (malpractice); Eves v. Littig
Constr. Co., 202 la 1338, 212 NW
154.
Kansas. Eames v. Clark, 104 Kan
65, 177 P 540 (care to be exercised
by persons of tender years).
Kentucky. Winter, Jr. & Co. v.
Forrest, 145 Ky 581, 140 SW 1005;
Stearns Coal & Lbr. Co. v. Williams,
171 Ky 46, 186 SW 931; Louisville
& N. R. Co. v. McCoy, 177 Ky 415,
197 SW 801; Chicago, M. & G. R.
Co. v. Stahr, 184 Ky 529, 212 SW
115; Penn Furn. Co. v. Ratliff, 194
Ky 162, 238 SW 393; Comer v.
Yancey, 251 Ky 461, 65 SW2d 459.
Maryland. Lion v. Baltimore City
Passenger Ry. Co., 90 Md 266, 44
A 1045, 47 LRA 127; Howard County
Comrs. v. Pindell, 119 Md 69, 85 A
1041.
Michigan. Cooper v. Mulder, 74
Mich 374, 41 NW 1084; Wendt v.
Richmond, 164 Mich 173, 129 NW 38.
Minnesota. Robertson v. Burton,
88 Minn 151, 92 NW 538.
Missouri. Thornton v. Mersereau,
168 MoApp 1, 151 SW 212; Barr v.
Missouri Pacific R. Co. (Mo), 37
SW2d 927; Pevesdorf v. Union Elec.
Light & Power Co., 333 Mo 1155, 64
SW2d 939; Sullivan v. Chauvenet
(MoApp), 186 SW 1090; Low v. Pad-
dock (MoApp), 220- SW 969; Donner
v. Whitecotton (MoApp), 245 SW
203 (no evidence) ; Culver v. Minden
Coal Co. (MoApp), 286 SW 745.
Montana. Parties are entitled to
instructions on all issues. Best v.
Beaudry, 62 Mont 485, 205 P 239.
Nebraska. Colgrove v. Pickett,
75 Neb 440, 106 NY 453; Hauber v.
Leibold, 76 Neb 706, 107 NW 1042;
Mentz v. Omaha & C. B. St. R. Co.,
103 Neb 216, 170 NW 889, 173 NW
478; Dawson County Irr. Co. v. Daw-
son County, 103 Neb 692, 173 NW
696, 176 NW 78; Schmidbauer v.
Omaha & C. B. St. R. Co., 104 Neb
250, 177 NW 336; Beauchamp v.
Leypoldt, 108 Neb 510, 188 NW 179,
27 ALR 65; Swengil v. Martin, 125
Neb 745, 252 NW 207; Landram v.
Roddy, 143 Neb 934, 12 NW2d 82,
149 ALR 1041.
New Jersey. Yates v. Madigan,
112 NJL 443, 171 A 679.
New York. Marion v. B. G. Coon
Constr. Co., 216 NY 178, 110 NE
444.
North Carolina. Roberson v.
Stokes, 181 NC 59, 106 SE 151; Yel-
low Cab Co. v. Sanders, 223 NC
626, 27 SE2d 631.
Ohio. Fruit Dispatch Co. v. F.
Lisey & Co., 4 OhApp 300, 22 Oh
CirCt (N. S.) 7, 28; Knox County
Farm Bureau v. Wagner, 24 OhApp
466, 155 NE 804; Henkel v. Robin-
son, 27 OhApp 341, 161 NE 342; St.
Paul Fire & Marine Ins. Co. v.
Baltimore & 0. R. Co., 129 OhSt
401, 195 NE 861.
Oklahoma. St. Louis & S. F. R.
Co. v. Posten, 31 Okl 821, 124 P 2;
Menten v. Richards, 54 Okl 418, 153
P 1177; Smith v. Maher, 84 Okl 49,
202 P 321, 23 ALR 270; Kimmell v,
Goehler, 99 Okl 273, 226 P 576.
Oregon. Del Vol v. Citizens Bank,
92 Or 606, 179 P 282, 181 P 985;
Collins v. United Brokers Co., 99 Or
556, 194 P 458; Anderson v. Wal-
lowa Nat. Bank, 100 Or 679, 198 P
560.
Pennsylvania. Weissburg v. Peo-
ples State Bank, 284 Pa 260, 131 A
181.
South Carolina. Powers v. Rawls,
119 SC 134, 112 SE 78; Planters
Fertilizer & Phosphate Co. v. Brad-
berry, 134 SC 541, 133 SE 436.
Texas. Pullman Co. v. Moise
(TexCivApp), 187 SW 249; Magno-
lia Petroleum Co. v. Ray (TexCiv
App), 187 SW 1085; Southern
Kansas Ry. Co. v. Wallace (Tex
ComApp), 206 SW 505; Greer v.
Thaman (TexComApp), 55 SW2d
519, revg. 38 SW2d 378.
Utah. Martineau v. Hanson, 47
Utah 549, 155 P 432; Pratt v. Utah
Light & Trac. Co., 57 Utah 7, 169
P 868.
§52
INSTRUCTIONS — RULES GOVERNING
168
court instructs the jury to find for one of the parties if the jury
find certain facts, the court should instruct as to the effect of
finding the converse of those facts.42 A party has a right not
only to tender his own theory of the case, but also, without
waiver of his own theory, to tender instructions to meet the
theory of the opposite party.43 Where the testimony sustains
the theory of both parties it is not enough to give the theory
of one of the parties, but the court should also give the theory
of the other party.44 The affirmative charge on a theory should
be given though a general charge may have been given to the
same effect.45 Ordinarily, the theories of both parties may be
covered in a single instruction.46 The "theory" may be referred
to as the "claim" of the party.47
Illustrations: Where there are two theories as to a tortious
death, each being supported by evidence, the court should
clearly draw the attention of the jury to the law applicable
to each theory.48 Under the Nebraska guest statute, the de-
Virginia. Miller & Co. v. Lyons,
113 Va 275, 74 SE 194; Norfolk &
W. R. Co. v. Parrish, 119 Va 670,
89 SE 923; Baylor v. Hoover, 123
Va 659, 97 SE 309.
Washington. West v. Shaw, 61
Wash 227, 112 P 243.
West Virginia. Jones v. Riverside
Bridge Co., 70 WVa 374, 73 SE 942;
Slater v. United Fuel Gas Co., 126
WVa 127, 27 SE2d 436.
Wyoming. Murphy v. W. & W.
Live Stock Co,, 26 Wyo 455, 187 P
187, 189 P 857.
42 Kentucky. Cincinnati, N. 0. &
T. P. R. Co. v. Francis, 187 Ky 703,
220 SW 739.
Missouri. Harper v. Wilson (Mo
App), 191 SW 1024; Boles v. Dun-
ham (MoApp), 208 SW 480.
New Hampshire. Bjork v. United
States Bobbin & Shuttle Co., 79 NH
402, 111 A 284, 533.
Texas. Baker v. Williams (Tex
CivApp), 198 SW 808.
43 Illinois. Ziehme v. Metz, 157
IllApp 543.
Iowa. Morrow v. Scovllle, 206 la
1134, 221 NW 802.
Missouri. Harting v. East St.
Louis Ry. Co. (Mo), 84 SW2d 914.
44 Connecticut. Bullard v. De-
Cordova, 119 Conn 262, 175 A 673.
Missouri. Smith v. Southern, 210
MoApp 288, 236 SW 413; Koury v.
Home Ins. Co. (MoApp), 57 SW2d
750.
Nevada. Crosman v. Southern
Pacific Co., 42 Nev 92, 173 P 223.
North Carolina. Hood System In-
dustrial Bank v. Dixie Oil Co., 205
NC 778, 172 SE 360.
Oklahoma. Campbell v. Thomas-
Godfrey Land & Loan Co., 81 Okl
201, 197 P 452.
Oregon. West v. McDonald, 64 Or
203, 127 P 784, 128 P 818.
Texas. Hart-Parr Co. v. Paine
(TexCivApp), 199 SW 822; Kansas
City, M. & 0. Ry. Co. v. Weatherby
(TexCivApp), 203 SW 793; Haver-
bekken v. Johnson (TexCivApp), 228
SW 256; McElroy v. Dobbs (TexCiv
App), 229 SW 674; Wichita Valley
Ry. Co. v. Williams (TexCivApp),
6 SW2d 439.
4« Kansas City, M. & 0. Ry. Co.
v. Swift (TexCivApp), 204 SW 135;
Kuehn v. Neugebauer (TexCivApp),
204 SW 369; Sherrill v. Union Lbr.
Co. (TexCivApp), 207 SW 149.
4^Toone v. J. O'Neil Constr. Co.,
40 Utah 265, 121 P 10.
47 Di Maio v. Yolen Bottling
Works, 93 Conn 597, 107 A 497.
48 Cerrillos Coal R. Co. v. Deser-
ant, 9 NM 49, 49 P 807.
169
SUBJECT-MATTER
§52
fendant is entitled to have the jury instructed on the defense of
assumption of risk where the issue is raised by the pleadings
and evidence.49
The court should submit all the issues and not merely those
supported by a preponderance of the evidence.50 This does not,
however, require the submission of every disputed evidentiary
fact, but only the essential facts warranting a recovery without
omission of essential ultimate facts which would defeat such
recovery or vice versa.51 A party is entitled to have the whole
case submitted either for a general verdict or for such special
findings as will dispose of the issues.52 So where a plaintiff
49 Landrum v. Roddy, 143 Neb
934, 12 NW2d 82, 149 ALR 1041.
50 Illinois. Krieger v. Aurora, E.
& C. R. Co., 242 111 544, 90 NE 266.
Iowa. Hutchinson Purity Ice
Cream Co, v. Des Moines City R.
Co., 172 la 527, 154 NW 890.
Massachusetts. Maxwell v. Mas-
sachusetts Title Ins. Co., 206 Mass
197, 92 NE 42.
Oklahoma. St. Louis & S. F. R.
Co. v. Whitefield, 70 Okl 26, 172 P
637; First State Bank v. Carr, 72
Okl 262, 180 P 856; Klein v. Muhl-
hausen, 83 Okl 21, 200 P 436.
Oregon. Van Orsdol v. Hutch-
croft, 83 Or 567, 163 P 978.
Pennsylvania. Volk v. Beatty, 40
PaSuperCt 628.
Texas. Barnes v. Dallas Consol.
Elec. Street R. Co., 103 Tex 387, 128
SW 367; Parks v. Sullivan (TexCiv
App), 152 SW 704.
The court should charge on the
issues involved, though the case is
submitted on special issues. Texas
Baptist University v. Patton (Tex
CivApp), 145 SW 1063.
Washington. Where instructions
covering the same point are re-
quested by both sides, if the court
adopts those requested by one side,
the other should be rejected. Melius
v. Chicago, M. & P. S. R. Co., 71
Wash 64, 127 P 575.
West Virginia. Williams v. Schehl,
84 WVa 499, 100 SE 280.
5 ' Missouri. Acme Harvesting
Mach. Co. v. Gasperson, 168 MoApp
558, 153 SW 1069.
New Mexico. Putney v. Schmidt,
16 NM 400, 120 P 720.
Pennsylvania. Wally v. Clark, 263
Pa 322, 106 A 542.
Tennessee. Crisman v. McMur-
ray, 107 Tenn 469, 64 SW 711.
Vermont. Ryder v. Vermont Last
Block Co., 91 Vt 158, 99 A 733.
Virginia. Norfolk & W. R. Co. v.
Allen, 118 Va 428, 87 SE 558.
52 Federal. Commercial Stand-
ard Ins. Co. v. Garrett, 70 F2d 969.
California. Jordan v. Great West-
ern Motorways (CalApp), 294 P 9.
Florida. American Fruit Growers
v. Woodley, 116 Fla 779, 156 S 689
(omitting element of apparent au-
thority in case where agency was an
issue).
Georgia. Henderson v. Murray,
42 GaApp 489, 156 SE 470.
Illinois. Green v. Ross, 257 111
App 344.
Indiana. Burroughs v. Southern
Colonization Co., 96 IndApp 93, 173
NE 716.
Kentucky. Myers v. Franklin, 236
Ky 758, 34 SW2d 234.
Missouri. Porter v. Equitable Life
Assur. Soc. (Mo App), 71 SW2d 766;
Hunt v. Dean (MoApp), 72 SW2d
831 (ignoring element of breach of
contract and the plaintiff's knowl-
edge of such breach).
New York. McAdam v. Wholesale
Dry Cleaning & Dyeing Works, 232
AppDiv 30, 248 NYS 613.
Ohio. Ruman v. Smith, 48 OhApp
188, 192 NE 808 (defense of con-
tributory negligence ignored).
Oklahoma. National Life & Ace.
Ins. Co. v. Roberson, 169 Okl 136, 36
P2d 479.
53
INSTRUCTIONS — RULES GOVERNING
170
claims under two separate deeds of conveyance, it is error for
the court to confine the jury, in their deliberations, to the claim
arising from only one of such deeds,53 and where there are two
distinct defenses supported by the evidence, the court should
fairly instruct as to both.54
In submitting the issues, both the affirmative and the negative
must be presented.55 Thus where the court is asked to instruct
that unless they find and believe from the evidence that the
plaintiff complied with all the requirements upon his part under
the contract offered in evidence, their finding should be for the
defendant, there is no good reason for refusing it where the
affirmative of the proposition was given in one of plaintiff's
instructions.56
Where the case is submitted on special issues, it is not neces-
sary to affirmatively submit the theory of each party,57
§ 53. Theories of case in criminal prosecution.
The rule in civil cases requiring the court to instruct on all
theories of the case having support in the evidence to any extent
has a like application in criminal prosecutions.
(1) In general. The accused is entitled to have the jury
instructed on the whole law of the case.57a It is error for a trial
Tennessee. Kroger Groc. & Bak-
ing- Co. v. Addington, 18 TennApp
191, 74 SW2d 650.
Texas. South Plains Coach.es, Inc.
v. Behringer (TexCivApp), 32 SW2d
959.
Vermont. Coolidge v. Ayers, 76
Vt 405, 57 A 970.
Virginia. Chesapeake Ferry Co.
v. Hudgins, 155 Va 874, 156 SE 429.
*3 Sackett v. Stone, 115 Ga 466,
41 SE 564.
54 Alabama. Knight Iron & Metal
Co. v. Orr, 202 Ala 677, 81 S 633.
Kentucky. Langhan v. Louisville,
186 Ky 438, 216 SW 1082.
Mississippi. Crow v. Burgin
(Miss), 38 S 625.
Missouri. See Ganahl v. United
Rys. Co., 197 MoApp 495, 197 SW
159.
ss California. Buckley v. Silver-
berg, 113 Cal 673, 45 P 804.
Michigan. Miller v. Miller, 97
Mich 151, 56 NW 348.
Missouri. Womach v. St. Joseph,
168 Mo 236, 67 SW 588; Marshall
v. Brown (MoApp), 230 SW 347.
North Carolina. Raleigh Real
Estate Co. v. Moser, 175 NC 255,
95 SE 498.
Oklahoma. Crouch & Son v. Hu-
ber, 87 Okl 83, 209 P 764.
Texas. Wichita Falls Trac. Co.
v. Adams, 107 Tex 612, 183 SW 155;
Missouri, K. & T. Ry. Co. v. Renfro
(TexCivApp), 83 SW 21; Shaller
v. Johnson-McQuiddy Cattle Co.
(TexCivApp), 189 SW 553; Galves-
ton, H. & S. A. Ry. Co. v. Wilson
(TexCivApp), 214 SW 773.
Virginia. Virginia Ry. & Power
Co. v. McDemmick, 117 Va 862, 86
SE 744.
West Virginia. Angrist v. Burk,
77 WVa 192, 87 SE 74.
56 Bruce v. Wolfe, 102 MoApp
884, 76 SW 723.
57 Jackson v. Graham (TexCiv
App), 205 SW 755.
67a Federal. Calderon v. United
States, 279 F 556.
Alabama. Sanford v. State, 143
Ala 78, 39 S 370; Davis v. State,
214 Ala 273, 107 S 737; Burns v.
State, 229 Ala 68, 155 S 561; Bell
v. State, 2 AlaApp 150, 56 S 842.
171
SUBJECT-MATTER
§53
California. People v. Rallo, 119
CalApp 393, 6 P2d 516.
Georgia. Where the accused in
his statement presents a theory
which, if true, entitles him to either
an acquittal or conviction of a
lower offense than the one charged,
it is error to refuse a written re-
quest applicable to such theory.
Dozier v. State, 12 GaApp 722, 78
SE 203.
Illinois. People v. Grant, 313 111
69, 144 NE 813.
Iowa. State v. Brooks, 192 la
1107, 186 NW 46.
Kentucky. Gordon v. Common-
wealth, 136 Ky 508, 124 SW 806;
Tucker v. Commonwealth, 145 Ky
84, 140 SW 73; Curtis v. Common-
wealth, 169 Ky 727, 184 SW 1105;
Huddleston v. Commonwealth, 171
Ky 187, 188 SW 332; Hunter v.
Commonwealth, 171 Ky 438, 188 SW
472; Vaughn v. Commonwealth, 204
Ky 229, 263 SW 752; Gibson v. Com-
monwealth, 204 Ky 748, 265 SW 339;
Agee v. Commonwealth, 9 KyL 272,
5 SW 47.
Michigan. People v. Cummins,
47 Mich 334, 11 NW 184, 186; Peo-
ple v. Parsons, 105 Mich 177, 63
NW 69; People v. Germaine, 234
Mich 623, 208 NW 705.
Missouri. State v. McBroom, 238
Mo 495, 141 SW 1120; State v.
Stallings, 326 Mo 1037, 33 SW2d
914; State v. Hartley, 337 Mo 229,
84 SW2d 637; State v. Widner (Mo
App), 184 SW 909.
The defendant is entitled to an
instruction that unless certain facts
are shown he should be acquitted
where on the converse of this the
state asks for his conviction. State
v. Rutherford, 152 Mo 124, 53 SW
417.
New Mexico. Territory v. Baca,
11 NM 559, 71 P 460; State v. Mar-
tinez, 30 NM 178, 230 P 379.
New York. People v. Murch, 263
NY 285, 189 NE 220; People v.
Viscio, 241 AppDiv 499, 272 NYS
213.
North Carolina. State v. Grain-
ger, 157 NC 628, 73 SE 149.
North Dakota. State v. Tough,
12 ND 425, 96 NW 1025.
Ohio. Miller v. State, 125 OhSt
415, 181 NE 890.
Oklahoma. Reed v. State, 3 Okl
Cr 16, 103 P 1070, 24 LRA (N. S.)
268; Jessie v. State, 28 OklCr
309, 230 P 519; Moore v. State, 35
OklCr 257, 250 P 538.
The defendant is entitled to a
clear instruction applicable to his
testimony, based on the hypothesis
that it is true, when such testi-
mony affects a material issue in
the case. Payton v. State, 4 OklCr
316, 111 P 666.
Oregon. State v. Patterson, 117
Or 153, 241 P 977.
Pennsylvania. Commonwealth v.
Principatti, 260 Pa 587, 104 A 53.
Tennessee. Ford v. State, 101
Tenn 454, 47 SW 703; Cooper v.
State, 123 Tenn 37, 138 SW 826.
Texas. Reed v. State, 9 TexApp
317; Berry v. State, 58 TexCr 291,
125 SW 580; Moore v. State, 59
TexCr 361, 128 SW 1115; Kelley v.
State, 79 TexCr 402, 185 SW 874;
McPeak v. State, 80 TexCr 50, 187
SW 754; Berry v. State, 80 TexCr
87, 188 SW 997; James v. State, 86
TexCr 107, 215 SW 459; McCormick
v. State, 86 TexCr 366, 216 SW 871
(whether state's witness was an ac-
complice) ; Duncan v. State, 90 Tex
Cr 479, 236 SW 468; White v. State,
102 TexCr 456, 278 SW 203; Latta
v. State, 124 TexCr 618, 64 SW2d
968; Stokes v. State, 126 TexCr 377,
71 SW2d 882.
The state is entitled to the same
extent as the accused. Smith v.
State, 79 TexCr 468, 185 SW 576.
Virginia. Nelson v. Common-
wealth, 14S Va 579, 130 SE 389.
Where there is evidence in sup-
port of two opposing theories as to
the cause and motives of an alleged
defense and a court charges as to
the theory of the state, it is error
to refuse an instruction covering
the theory of the accused. Jackson
v. Commonwealth, 96 Va 107, 30
SE 452.
Washington. State v. Gohn, 161
Wash 177, 296 P 826.
§53
INSTRUCTIONS — RULES GOVERNING
172
court to fail to give equal stress to the contentions of the state
and the defendant. This does not necessarily mean that the state-
ments of the opposing parties be of equal length. But there is
a lack of equal stress when the state's contentions are given at
great length and in detail, while, on the other hand, the de-
fendant's contentions are given in very brief, general terms, as
though he had offered no evidence at all.58 The charge should
set forth the converse of the instructions given for the state
on the principal fact.59 The court may instruct upon all theories
of the defense, though they may necessarily conflict,60 but he
need not tell the jury that the defenses are inconsistent.61
The instruction should be given though the evidence in sup-
port of the theory is slight,62 and is produced by the party
opposed to the party requesting the instruction.63 The instruc-
tion should cover contentions made and argued before the jury,64
and the theory must be presented pertinently, plainly, and af-
firmatively.65
(2) Illustrations. Insanity. If insanity be set up as a de-
fense, and there is evidence submitted in support of it, the
58 State v. Kluckhohn, 243 NC
306, 90' SE2d 768.
59 Arkansas. Stockton v. State,
174 Ark 472, 295 SW 397. But see
Ring v. State, 154 Ark 250, 242 SW
561.
Kentucky. Tyree v. Common-
wealth, 253 Ky 823, 70 SW2d 930.
Missouri. State v. Cantrell, 290
Mo 232, 234 SW 800; State v. San-
tino (Mo), 180 SW 976; State v.
Johnson (Mo), 234 SW 794; State v.
Majors (Mo), 237 SW 486.
Texas. Kilpatrick v. State, 80
TexCr 391, 189 SW 267; Cammack
v. State, 102 TexCr 579, 278 SW
1105; Edwards v. State, 125 TexCr
427, 68 SW2d 1049.
60 Stevens & Elkins v. Lewis, Wil-
son, Hicks Co., 168 Ky 648, 182 SW
840; Carver v. State, 36 TexCr 552,
38 SW 183.
6 « Yarbrough v. State, 13 OklCr
140, 162 P 678.
62 Louisiana, State v. Robichaux,
165 La 497, 115 S 728.
Missouri. State v. Lambert, 318
Mo 705, 300 SW 707.
Texas. Ladwig v. State, 40 TexCr
585, 51 SW 390; Burkhalter v. State,
79 TexCr 336, 184 SW 221; Crispi
v. State, 90 TexCr 621, 237 SW 263.
West Virginia. State v. Manns,
48 WVa 480, 37 SE 613.
63 Kentucky. It is immaterial
which side the evidence comes from
in support of the defense. Vick v.
Commonwealth, 236 Ky 436, 33
SW2d 297.
Oklahoma. Heath v. State, 49
OklCr 250, 293 P 1111.
Texas. Stapleton v. State, 56
TexCr 422, 120 SW 866.
See Spears v. State, 103 TexCr
474, 281 SW 555 (where a requested
charge directing acquittal was
based solely on consideration of the
state's case, ignoring the evidence
adduced on defendant's side).
64 Federal. Kearns v. United
States, 27 F2d 854.
California. People v. Doble (Cal
App), 265 P 184.
Georgia. Autrey v. State, 24
GaApp 414, 100 SE 782.
65 Smith v. State, 89 TexCr 606,
232 SW 811; Franklin v. State, 106
TexCr 285, 292 SW 222; Dodd v.
State, 117 TexCr 495, 35 SW2d
168.
173
SUBJECT-MATTER
§53
court commits error in refusing to charge the jury with respect
to this defense.66
Principal and accomplice. Where the indictment charges
that the defendant alone committed the offense, it is error to
instruct the jury that conviction is authorized if the accused
aided and abetted the commission of the crime.67 Where the
defendant is charged as a principal, the instruction should point
out plainly what acts or conduct constitute the defendant a
principal.68 Where accomplice's testimony is used, it is the right
of the accused to have the jury told of the necessity of cor-
roboration of such testimony.69
Motive and intent. Where the evidence shows facts tending
to show absence of motive, the jury may be told that absence
of motive is a circumstance in favor of accused.70 Although
motive is not a necessary element of murder, where the identity
of the killer is not shown by direct evidence, it is the court's
duty to instruct the jury to consider the evidence on motive,
in determining the guilt or innocence of the accused. But if
there is direct evidence of murder, and guilt or innocence depends
upon the credibility of witnesses, the court need not charge upon
66 Illinois. People v. Moor, 355
111 393, 189 NE 318.
Pennsylvania. Commonwealth v.
Williams, 309 Pa 529, 164 A 532.
Virginia. Wessels v. Common-
wealth, 164 Va 664, 180 SE 419.
67 Tillman v. Commonwealth, 259
Ky 73, 82 SW2d 222; State v. Doty,
94 OhSt 258, 113 NE 811.
68 Ellison v. Commonwealth, 130
Va 748, 107 SE 697.
An instruction is sufficient which
tells the jury that one who is pres-
ent at the time and place an offense
is actually committed, and, know-
ing the unlawful intent and purpose
of the person committing1 the of-
fense, either participates in the com-
mission or encourages the person
engaged in it knowing his unlaw-
ful purpose and intent, by words,
signs, deeds, or acts, is a principal,
and alike guilty with the one com-
mitting the offense. Monday v.
State, 90 TexCr 8, 232 SW 831.
69 Federal. Davis v. United
States, 24 F2d 814; Nash v. U. S., 54
F2d 1006,
California. People v. Swoape, 75
CalApp 404, 242 P 1067.
Kentucky. Baker v* Common-
wealth, 212 Ky 50, 278 SW 163.
Montana. State v. Smith, 75
Mont 22, 241 P 522.
Ohio. State v. Lehr, 97 OhSt 280,
119 NE 730; State v. Reichert, 111
OhSt 698, 146 NE 386.
Texas. Davidson v. State, 84 Tex
Cr 433, 208 SW 664; Ice v. State,
84 TexCr 509, 208 SW 343; Childress
v. State, 85 TexCr 22, 210 SW 193;
Cone v. State, 86 TexCr 291, 216
SW 190; Hornbuckle v. State, 86
TexCr 352, 216 SW 880; Scales v.
State, 86 TexCr 433, 217 SW 149;
Newton v. State, 86 TexCr 508, 217
SW 939; Clark v. State, 86 TexCr
585, 218 SW 366; Stovall v. State,
104 TexCr 210, 283 SW 850; Turner
v. State, 117 TexCr 434, 37 SW2d
747.
Utah. State v. McCurtain, 52
Utah 63, 172 P 481.
70 State v. Johnson, 139 La 829,
72 S 370.
§ 54 INSTRUCTIONS — BULBS GOVERNING 174
motive.71 It is not error to fail to charge on motive which is
not made an issue in the case.72
Intent need not be charged where the statute makes the
commission of the act an offense.73 As the converse of instruc-
tions given for the state in a murder prosecution where the
defense was that the shooting was an accident, and intent was
the main issue in the case, it was held error to refuse a re-
quested instruction of the defendant that his defense was that
the shooting was accidental and that the prosecution carried
the burden of proving beyond reasonable doubt that it was in-
tentional.74 In a liquor prosecution for transporting, the de-
fendant's contention that he did not know the liquor was in
his car should be submitted to the jury as a proper instruction.75
Identification. A defense based largely on lack of identifica-
tion of the accused, where he was identified by only one of
four eye-witnesses, is sufficient to entitle the defendant to an
instruction thereon.76
Alibi. Where the defense was alibi in a prosecution for
robbing a bank, it was error to refuse an instruction that the
jury should acquit if one other than defendant entered the
bank and committed the robbery, even though the defendant
knew of the intended robbery; the theory of the prosecution
being that the defendant himself entered the bank and com-
mitted the robbery, and an instruction having been given pur-
suant to the state's theory.77
Offense charged. An instruction on an offense different
from that for which the defendant is on trial is error.78
§ 54. Definition of terms in civil cases.
Where technical terms, or terms which have acquired a pe*
culiar significance in the law, are employed in instructions, the
court should point out their meaning to the jury, unless the
meaning is already clear.
Where words and expressions are used in a legal or technical
sense differing from the common acceptance of the term, an in-
71 State v. Lancaster, 167 OhSt 74 State v. Markel, 336 Mo 129, 77
391, 149 NE2d 157. SW2d 112,
72 Commonwealth v. Gates, 392 7S Carr v. State, 122 TexCr 392,
Pa 557, 141 A2d 219. 56 SW2d 183.
73 State v. Conley, 280 Mo 21, 76 People v. LeMar, 358 III 58,
217 SW 29; State v. Dehn, 126 192 NE 703.
Wis 168, 105 NW 795; State ex 77 State v. Ledbetter, 332 Mo 225,
rel. Conlin v. Wausau, 137 Wis 311, 58 SW2d 453.
lia NW 810; State v. Welch, 145 7« State v. Barbour, 142 Kan 200,
Wis 86, 129 NW 656, 32 LRA (N. 46 P2d 841.
S.) 746.
175
SUBJECT-MATTER
§54
struction defining their meaning is proper and in some cases es-
sential, for it is not to be expected that the untrained minds of
jurors will grasp the meaning of legal terms without explana-
tion.79 Thus an instruction that the plaintiff is required to estab-
lish all the material allegations of his petition is open to objection
as leaving the jury to decide for themselves what is meant by
the word "material."80 So in an action against a city for damage
to lots in consequence of a faulty sewer, it is error to submit to
79 Federal. Buckeye Cotton Oil
Co. v. Sloan, 163 CCA 44, 250 F
712 (ratification of slander).
Alabama. A requested charge ex-
planatory of charges given at the
request of the other party should
not be refused. Sloss-Sheffield Steel
& Iron Co. v. Milbra, 173 Ala 658,
55 S 890.
California. Young v. Southern
Pac. Co., 182 Cal 369, 190 P 36
("proper warning" at railroad cross-
ing) ; Burrell v. Southern California
Canning Co., 35 CalApp 162, 169 P
405 (perfectly constructed mechani-
cally).
District of Columbia. Thomas v.
Presbrey, 5 AppDC 217.
Georgia. The word "approved"
used in an instruction on the degree
of skill required of a surgeon, a
statement that such skill includes
an ability to perform an operation
in an "approved" way, should be
defined. Pace v. Cochran, 144 Ga
261, 86 SE 934.
An elaborate definition of circum-
stantial evidence is not demanded.
Pope v. Seaboard Air Line Ry., 21
GaApp 251, 94 SE 311.
Illinois. Momence Stone Co. v.
Turrell, 205 111 515, 68 NE 1078;
Sparr v. Southern Pac. Co., 220
IllApp 180 (in good merchantable
shipping condition).
Iowa. Overhouser v. American
Cereal Co., 128 la 580, 105 NW 113.
Kentucky. Kroger Groc. & Bak-
ing Co. v. Hamlin, 193 Ky 116, 235
SW 4.
Michigan. Barkow v. Donovan
Wire & Iron Co., 190 Mich 565, 157
NW55.
Missouri. Roberts v. Piedmont,
166 MoApp 1, 148 SW 119 (great
degree of care) ; Foy v. United Rys.
Co., 205 MoApp 521, 226 SW 325;
Trepp v. State Nat. Bank, 315 Mo
883, 289 SW 540; Anderson v. Ameri-
can Sash & Door Co. (MoApp), 182
SW 819; Strother v. Metropolitan
Street Ry. Co. (MoApp), 183 SW
657; Mullenix v. Briant (MoApp),
198 SW 90 (statutory offense of
common-law assault and battery);
Kepley v. Park Circuit & Realty Co.
(MoApp), 200- SW 750 (wrongful
and without justifiable cause);
Scheidel Western X-Ray Co. v. Bacon
(MoApp), 201 SW 916; Nicholson
v. Missouri Pacific R. Co. (MoApp),
297 SW 996 (sufficient warning).
Prompt and proper treatment by
physician should be defined. Dun-
nagan v. Briggs, 170 MoApp 691,
154 SW 428.
Ohio. Perrysburg & 1. Transp.
Co. v. Gilchrist, 2 OhCirCt (N. S.)
505, 14 OhCirDec 165 (dwelling-
house and residence).
Texas. Texas & N. 0. R. Co. v.
Harrington (TexCivApp), 209 SW
685 ("crossing" and "view of cross-
ing" in action for crossing injury);
Peters v. Graham (TexCivApp), 234
SW 566; Robertson v. Holden (Tex
ComApp), 1 SW2d 570, revg. (Tex
CivApp), 297 SW 327.
Washington. Hub Clothing Co. v.
Seattle, 117 Wash 251, 201 P 6 (rea-
sonable inspection).
Wisconsin. Yerkes v. Northern
Pacific Ry. Co., 112 Wis 184, 88 NW
33, 88 AmSt 961; Mahoney v. Ken-
nedy, 188 Wis 30, 205 NW 407; Ul-
rich v. Schwarz, 199 Wis 24, 225 NW
195, 63 ALR 886; Bump v. Voights,
212 Wis 256, 249 NW 508.
80 Williams v. Iowa Cent. Ry. Co.,
121 la 270, 96 NW 774.
INSTRUCTIONS — RULES GOVERNING
176
the jury the question of plaintiff's ownership of the land without
showing- what constitutes ownership or title.81 The court should
give an instruction defining "negligence" and "ordinary care"
as those terms are used in the charge. 82
The following terms should be defined by the judge when
used in the charge: "independent contractor,"83 "unavoidable
accident,"84 "last clear chance,"84a "undue influence,"85 "more
than ordinarily dangerous as night-time crossing,"86 "perma-
nently disabled," 87 "contributory negligence,"88 "apparent
authority,"89 "negative testimony,"90 "new and independent
cause,"9' "safety,"92 "exemplary damages,"93 "timely," where
the charge declared an engineer's duty to give timely warning,94
"preponderance of evidence," used in instruction in connection
with burden of proof,95 "acting within scope of their author-
ity," 96 "authorized agent,"97 "community property."98
81 McArthur v. Dayton, 19 KyL
882, 42 SW 343.
82 Alabama. Brilliant Coal Co. v.
Barton, 203 Ala 38, 81 S 828.
Kentucky. Chesapeake & 0. Ry.
Co. v. Warnock, 150 Ky 74, 150 SW
29; South Covington & C. Street
Ry. Co. v. Nelson, 28 KyL 287, 89
SW 200. But see Western Union
Tel. Co. v. Brasher, 136 Ky 485, 124
SW 788.
Missouri. Raybourn v. Phillips,
160 MoApp 534, 140 SW 977; Ma-
lone v. St. Louis-San Francisco Ry.
Co., 202 MoApp 489, 213 SW 864.
Ohio. Breuer v. Frank, 3 ONP
(N.S.) 581, 16 OhBec 231.
Texas. Cleburne Elec. & Gas Co.
v. McCoy (TexCivApp), 149 SW 534.
"Contributory negligence" need
not be defined where that term is
not used in the charge. Baker v.
Sparks (TexCivApp), 234 SW 1109.
as Overhouser v. American Cereal
Co., 128 la 580, 105 NW 113.
84Leland v. Empire Engineering
Co., 135 Md 208, 108 A 570; Knabb
v. Scherer, 45 OhApp 535, 187 NE
574, 39 OLR 234.
84aRooney v. Levinson, 95 Conn
466, 111 A 794.
85 Gwinn v. Hobbs, 72 IndApp
439, 118 NE 155.
86 Missouri, K. & T. R. Co. v.
Long (TexComApp), 299 SW 854,
revg. 293 SW 184.
87 Commonwealth Life Ins. Co. v.
Ovesen, 257 Ky 622, 78 SW2d 745.
88 Miller v. Pettigrew (TexCiv
App), 10 SW2d 168.
89 Emerson - Brantingham Imple-
ment Co. v. Roquemore (TexCiv
App), 214 SW 679.
90Suick v. Krom, 171 Wis 254,
177 NW 20.
9 1 Greer v. Thaman (TexCom
App), 55 SW2d 519.
92Withey v. Hammond Lbr. Co.,
140 CalApp 587, 35 P2d 1080.
93 Michigan. Hink v. Sherman,
164 Mich 352, 129 NW 732.
Mississippi. But see St. Louis &
S. F. R. Co. v. Moore, 101 Miss 768,
58 S 471, 39 LRA (N. S.) 978,
AnnCas 1914B, 597.
Missouri. Distler v. Missouri
Pacific R. Co., 163 MoApp 674, 147
SW 518.
94 Ward v. Missouri Pacific Ry.
Co., 311 Mo 92, 277 SW 908.
95 Head v. M. E. Leming Lbr. Co.
(Mo), 281 SW 441.
In attempting to define "prepond-
erance of the evidence/* an instruc-
tion that mentions what is not
"reasonable doubt" or "clear and
convincing evidence" is error, since
it would certainly confuse and mis-
lead a jury. Pickering v. Cirell, 163
OhSt 1, 125 NE2d 185.
96 Humphreys v. St. Louis-San
Francisco Ry. Co. (MoApp), 286 SW
738.
177
SUBJECT-MATTER
§54
It is better practice to use plain English rather than classical
language in charging the jury. Latin phrases when used should
be explained. But it is not error, where a charge, although using
an untranslated Latin phrase [qitantum meruif] , plainly informs
the jury of the issues and explains the applicable law in ordinary
parlance."
But where ordinary words and terms are used in the sense
in which they are commonly understood, it is unnecessary to
define or explain them.1 The courts have placed in this cate-
gory such words and expressions as "diligent inquiry/'2 "direct
and proximate result/'3 "proximate cause/'4 "burden of proof,"3
"preponderance of evidence/'6 "misrepresentation/'7 "execute/'
97 Bender Motor Co. v. Rowan
(TexCivApp), 33 SW2d 263.
9SHutson v. Bassett (TexCiv
App), 35 SW2d 231.
99 City of Summerville v. Sellers,
94 GaApp 152, 94 SE2d 69.
1 Georgia. Jackson v. Georgia R.
& Banking Co., 7 GaApp 644, 67
SE 898.
Missouri. Cottrill v. Krum, 100
Mo 397, 13 SW 753, 18 AmSt 549;
Clonts v. Laclede Gas Light Co.,
160 MoApp 456, 140 SW 970.
Ohio. Eoss v. Stewart, 15 OhApp
339, 32 OhCApp 217 (prima facie);
Watkins v. Linver, 48 OhApp 268,
193 NE 77, 1 OhO 283 (sole negli-
gence); Platers Supply Co. v. Gen-
eral Supply Co., 1 OLA 612 (mer-
chantable).
Texas. Johnson v. W. H. Goolsby
Lbr. Co. (TexCivApp), 121 SW 883;
Stanton v. Boyd (TexCivApp), 299
SW 321.
Utah. Geary v. Cain, 6& Utah
340, 255 P 416.
2 Cottrill v. Krum, 100 Mo 397,
13 SW 753, 18 AmSt 549.
3 Rand v. Butte Elec. R. Co., 40
Mont 398, 107 P 87.
4 Federal. Jasper County Lbr. Co.
v. McNeill, 76 F2d 207. But see
Delaware & Hudson Co. v. Ketz, 147
CCA 101, 233 F 31.
Illinois. Kleet v. Southern Illinois
Coal & Coke Co., 197 IllApp 243;
Bagami v. Bonk Bros. Coal & Coke
Co., 199 IllApp 76.
Kentucky. Louisville v. Arrow-
smith, 145 Ky 498, 140 SW 1022.
Missouri. Turnbow v. Dunham,
272 Mo 53, 197 SW 103; Wolters v.
Chicago & A. R. Co. (MoApp), 193
SW 877; Mitchell v. Violette (Mo
App), 203 SW 218.
Texas. Wichita Falls, R. & F. W.
R. Co. v. Mendoza (TexCivApp),
240 SW 570 (should be given on
request) .
5 Holmes v. Protected Home Cir-
cle, 199 MoApp 528, 204 SW 202;
Miller v. Firemens Ins. Co., 206
MoApp 475, 229 SW 261; Thompson
v. Business Mens Ace. Assn. (Mo
App), 231 SW 1049; Stine Oil &
Gas Co. v. English (TexCivApp),
185 SW 1009.
6 California. Franklin v. Visalia
Elec. R. Co., 21 CalApp 270, 131
P 776.
Colorado. Brunton v. Stapleton,
65 Colo 576, 179 P 815.
Delaware. Wilmington City Ry.
Co. v. Truman, 7 Penn. (23 Del)
197, 72 A 983.
Georgia. Day v. Bank of Sparks,
26 GaApp 718, 107 SE 272.
Illinois. Chicago City R. Co. v.
Kastrzewa, 141 IllApp 10.
Missouri. Tucker v. Carter (Mo
App), 211 SW 138.
Montana. Rand v. Butte Elec. Ry.
Co., 40 Mont 398, 107 P 87.
Oklahoma. Gushing v. Bay, 82
Okl 140, 198 P 877.
Texas. Galveston, H. <& S. A. R.
Co. v. Blumberg (TexCivApp), 227
SW 734; American Fidelity & Cas-
ualty Co., Inc. v. Williams (TexCiv
App), 34 SW2d 396.
§54
INSTRUCTIONS — RULES GOVERNING
178
as applied to contracts,8 "proper control," as applied to automo-
bile,9 "gross" and "slight," in reference to negligence,10 "U turn"
in automobile collision case, ! l "common laborer/' ' 2 "considera-
tion,"13 "reasonable proximity thereto,"14 "scope of employ-
ment," ! 5 "agency," * 6 "partnership," l 7 "bona fide controversy," ' s
"tender," ' 9 "unreasonable, highly dangerous, and negligent
speed,"20 "intersection,"2 ' "dangerous,"22 "merchantable
title,"23 "paramount right of way over intersection,"24 "fre-
quently,"25 "intrinsic value,"26 "acquiescence,"27 "passenger,"28
"imminent peril,"29 "inevitable accident,"30 "efficient and pro-
curing cause,"31 "society, assistance, and domestic services,"32
"bred,"33 "habitual drunkard,"34 "jimmies, willies, delirium
tremens,"35 "deliver" or "delivery,"36 "market value,"37 "proper
7Zackwik v. Hanover Fire Ins.
Co. (MoApp), 225 SW 135; Hester
v. Shuster (TexCivApp), 234 SW
713.
8 W. T. Rawleigh Co. v. Snider,
207 Ind 686, 194 NE 356.
9 Cassinelli v. Bennen, 110 CalApp
722, 294 P2d 748; Hiteshue v. Robin-
son, 170 Wash 272, 16 P2d 610.
!0Monasmith v. Cosden Oil Co.,
124 Neb 327, 246 NW 623.
1 ' Szuch v. Ni Sun Lines, 332
Mo 469, 58 SW2d 471.
!2Boettger v. Scherpe & Koken
Architectural Iron Co., 136 Mo 531,
38 SW 298.
1 3 Indiana. First Nat. Bank v.
Garner, 187 Ind 391, 118 NE 813,
119 NE 711.
Iowa. Babb v. Herring Motor Co.,
193 la 794, 186 NW 672.
Kentucky. Farmers Bank v. Birk,
179 Ky 761, 201 SW 315.
1 4 Oliver v. Forney Cotton Oil &
Ginning Co. (TexCivApp), 226 SW
1094.
1 5 Stevenson v. A. B. C. Fireproof
Warehouse Co. (MoApp), 6 SW2d
676.
1 6 Western Union TeL Co. v. Ford,
10 GaApp 606, 74 SE 70.
1 7 Brown v. Cassidy-Southwest-
ern Comm. Co. (TexCivApp), 225
SW 833.
18 Bay Lbr. Co. v. Snelling (Tex
CivApp), 205 SW 763.
l9Shodcley v. Booker (MoApp),
204 SW 569.
20 Hoagland v. Kansas City Rys.
Co. (MoApp), 209 SW 569.
21 Dauber v. Josephson, 209 Mo
App 531, 237 SW 149.
22 Gilbert v. Hilliard (MoApp),
222 SW 1027.
23 Sims v. Spelman, 209 MoApp
186, 232 SW 1071; Platers Supply
Co. v. General Supply Co., 1 OLA
612.
24 Malone v. Kansas City Rys. Co.
(MoApp), 232 SW 782.
25 Rigley v. Prior, 290 Mo 10, 233
SW 828 (sounding of bell or whistle
of locomotive).
26 Morrow v. Franklin, 289 Mo
549, 233 SW 224.
27 West Side Oil Co. v. McDor-
man (TexCivApp), 244 SW 167.
28 Looff v. Kansas City Rys. Co.
(Mo), 246 SW 578; Beckner v.
Kansas City Rys. Co. (MoApp), 232
SW 745.
29 Bryant v. Kansas City Rys.
Co., 286 Mo 342, 228 SW 472.
30 Van Tresse v. Kansas City Pub-
lic Service Co., 222 MoApp 671, 4
SW2d 1095.
3 ' Lumsden v. Jones (TexCiv
App), 227 SW 358.
32 Baldwin v. Kansas City Rys.
Co. (MoApp), 231 SW 280.
32 Lester v. Hugley (MoApp), 230
SW 355 (bred to registered bull).
34 Runkle v. Southern Pacific Mill-
ing Co., 184 Cal 714, 195 P 398, 16
ALR 275.
35 Cavannaugh v. North Ameri-
can Union (MoApp), 2 SW2d 172.
179
SUBJECT-MATTER
54
insulation,"38 "fact,"39 "business portions of the city/'40 "sub-
stantially/'41 "substantial performance/'42 "high and immod-
erate rate of speed/'43 "express consent" and "implied con-
sent/'44 "reputation/746 "suffer or permit,"46 "efficient and
procuring cause,"47 "bona fide holder/'48 "intoxicated,"49 "in-
gress" and "egress"50 "proper inspection/'51 "permanent," as
referring to disability under insurance policy,52 "under the in-
fluence of liquor,"53 "reasonable time/'54 "actual value,"55
"man of ordinary prudence," "reasonable man/'56 "fast" with
regard to speed of motor vehicle.57
It has been held unnecessary to explain what is meant by
"adverse" possession of realty, as the word in itself imports a
"hostile and distinct" possession.58 Further, in an action for
an illegal arrest and imprisonment, an instruction telling the
jury that if they believed the defendant "unlawfully and op-
pressively arrested the plaintiff in the night-time and confined
him in the city jail," then they should find for the plaintiff, was
held not objectionable where other instructions informed the
36 Jameson v. Flournoy, 76 Okl
227, 184 P 910. But see Archam-
beau v. Edmunson, 87 Or 476, 171
P 186.
37 Quanah, A. & P. R. Co. v.
Stearns (TexCivApp), 206 SW 857.
38 Fidelity & Casualty Co. v.
Cedar Valley Elec. Co., 187 la 1014,
174 NW 709.
39 In re Nutt's Estate, 181 Cal
522, 185 P 393 (suppression of
facts).
4OVarley v. Columbia Taxicab
Co. (Mo), 240 SW 218.
41 Carrollton Monument Co, v.
Geary, 210 MoApp 45, 240 SW 506;
Moore v. McCutchen (MoApp), 190
SW 350; Westchester Fire Ins. Co.
v. Dickey (TexCivApp), 246 SW
730.
42 Weed v. Idaho Copper Co., 51
Idaho 737, 10 P2d 613.
43 El Paso Elec. Co. v. Portillo
(TexCivApp), 45 SW2d 404.
44McQuillen v. Meyers, 213 la
1366, 241 NW 442.
45 Pitman v. Drown, 176 Ky 263,
195 SW 815.
46 Kentucky Utilities Co. v. Mc-
Carty's Admr., 170 Ky 543, 186 SW
150 (employment of child).
47 Ramsey v. Gibson (TexCiv
App), 185 SW 1025.
48 King v. Heilig, 203 IllApp 117.
49 Mutual Life Ins. Co. v. John-
son, 64 Okl 222, 166 P 1074.
s°Wegner v. Kelly, 182 la 259,
165 NW 449.
5 ' Brogan v. Union Trae. Co., 76
WVa 698, 86 SE 753 (car by motor-
man).
52 Porter v. Equitable Life Assur.
Soc. (MoApp), 71 SW2d 766.
53 New York Cent. R. Co. v. De
Leury, 100 IndApp 140, 192 NE 125.
54 Bettoki v. Northwestern Coal
& Min. Co. (MoApp), 180 SW 1021;
Kurth v. Morgan (MoApp), 277 SW
50.
55 Interstate Forwarding Co. v.
McCabe (TexCivApp), 285 SW 920.
56 Kelley v. Hodge Transp. Sys-
tem, 197 Cal 598, 242 P 76.
57 Branch v. Mashkin Freight
Lines, Inc., 134 Conn 278, 57 A2d
136.
58 Kentucky. But see Louisville
Cooperage Co. v. Collins, 212 Ky
819, 280 SW 137.
Michigan. Miller v. Beck, 68 Mich
76, 35 NW 899.
Texas. But see Bowles v. Wat-
son (TexCivApp), 245 SW 120.
§55
INSTRUCTIONS — RULES GOVERNING
180
jury when an arrest without warrant might be made and pointed
out what was meant by an oppressive arrest.59
There is obvious lack of agreement among the courts in dis-
tinguishing common terms from technical terms. Aside from
this, one is compelled to remark that some courts are surely
mistaken in declaring that terms such as "consideration" and
"proximate cause" are commonly understood. Professors of Con-
tracts and Torts hesitate to define the terms, but it seems it is
unnecessary to define or explain these terms to jury laymen.
Perhaps the judges, realizing the difficulty, hesitate to attempt,
and throw the problem into the laps of the jurors.
§ 55. Definition of terms in criminal cases.
The rule as to the definition of terms in instructions is the
same in criminal prosecutions as in civil cases (see § 54).
The court in the trial of a criminal case is required to define
technical words and expressions, but not words and expressions
which are of ordinary understanding and self-explanatory.60
Among other things it has been held the duty of the court to
define such terms as "corpus delicti/'61 "wilful,"62 "successfully
impeached,"63 "accomplice,"64 "accessory before the fact,"65
59 WMte v. Madison, 16 Okl 212,
83 P 798.
6C> Georgia. Roberts v. State, 114
Ga 450, 40 SE 297.
Idaho. State v. Marks, 45 Idaho
92, 260' F 697.
Iowa. State v. McKinnon, 158 la
619, 138 NW 523.
Missouri. State v. McGuire, 193
Mo 215, 91 SW 939.
A "conspiracy" is a combination
of two or more persons by concerted
action to accomplish criminal pur-
pose. A "common design" is a com-
munity oi intention between two or
more persons to do an unlawful act.
State v. Hill, 273 Mo 329, 201 SW
58.
It is not necessary to define the
word "robbery," where there was a
general charge of murder, though
the killing in question was incident
to a robbery or an attempt to rob.
State v. Peak, 292 Mo 249, 237 SW
466.
North Carolina. State v. Clark,
134 NC 698, 47 SE 36.
Texas. Compere v. State, 107 Tex
Cr 95, 295 SW 614.
Vermont. The practice of the
court of reading to the jury in its
charge definitions of a word given
in dictionaries is not to be com-
mended. State v. Rivers, 84 Vt 154,
78 A 786.
Washington. The word "sabo-
tage" is of somewhat recent coin-
age, having a common and well-
understood meaning, and the court
may define its meaning as common-
ly understood, without testimony as
to its meaning. State v. McLen-
nen, 116 Wash 612, 200 P 319.
West Virginia. State v. McDonie,
89 WVa 185, 109 SE 710.
ei People v. Frey, 165 Cal 140,
131 P 127.
62 Windon v. State, 56 TexCr 198,
119 SW 309.
63 People v. Blevins, 251 111 381,
96 NE 214, AnnCas 1912C, 451.
64 Spencer v. State, 128 Ark 452,
194 SW 863.
65 Williams v. State, 128 Miss
271, 90 S 886.
An instruction should be requested
distinguishing between accessories
before and after the fact. Common-
wealth v. Gray, 72 PaSuperCt 287.
181
SUBJECT-MATTER
• 55
"implied malice/'66 "proper identification/'67 "wilfully" and "de-
liberately,"68 "aiding" and "abetting,"69 "prima facie evi-
dence/'70 "knowingly,"71 "inciting,"72 "provoking a diffi-
culty,"73 "constructive possession/'74 "solvent,"75 "res gestae/*76
"heat of passion/'77 "unlawful attack/'78 "robbery,"79 and "self-
defense."80
It has been held unnecessary to define "preponderance of the
evidence,"81 "corroborate,"82 "improper conduct/'83 "assault,"84
"reckless," when used in charge in a prosecution for murder,85
anger,
'attempt/
;'overt/;
^prostitution/'89 "drunk-
eness/'90 "credibility/'91 "prima facie/'92 "fraudulently,"93
"penetration/794 "premises/795 "theft/'96 "lucid interval/'97
66 Connell v. State, 46 TexCr 259,
81 SW 746.
67 Commonwealth v. Ronello, 251
Pa 329, 96 A 826.
68 State v. Garrett, 276 Mo 302,
207 SW 784; Holt v. State, 48 TexCr
559, 89 SW 838; Howard v. State,
86 TexCr 288, 216 SW 168 (obstruc-
tion of road); Stephens v. State, 90
TexCr 245, 234 SW 540.
69 State v. Enanno, 96 Conn 420,
114 A 386. But see People v. Wong
King, 176 Cal 699, 169 P 357.
70 People v. Lawson, 351 111 457,
184 NE 606; Nelson v. State, 14
OklCr 153, 168 P 460.
1 i People v. Stewart, 68 CalApp
621, 230- P 221.
72 Ellison v. Commonwealth, 130'
Va 748, 107 SE 697.
73Vann v. State, 45 TexCr 434,
77 SW 813, 108 AmSt 961.
74 People v. Csontos, 275 111 402,
114 NE 123.
75 People v. Roth, 137 CalApp
592, 31 P2d 813.
76 People v. Thomas, 135 CalApp
654, 27 P2d 765.
77 State v. Skaggs, 159 Mo 581, 60
SW 1048. But see State v. Gore,
292 Mo 173, 237 SW 993.
78Lewellen v. State, 104 TexCr
550, 286 SW 224.
79 Napier v. Commonwealth, 236
Ky 147, 32 SW2d 743.
80 People v. Doody, 343 111 194,
175 NE 436.
8 1 State v. Felker, 27 Mont 451,
71 P 668.
82 State v. Affronti, 292 Mo 53, 238
SW 106; State v. Tedder, 294 Mo
390, 242 SW 889; Buckley v. State,
78 TexCr 378, 181 SW 729; Still
v. State (TexCr), 50 SW 355.
83 State v. Barrington, 198 Mo 23,
95 SW 235.
84 State v. Lewis, 52 Mont 495,
159 P 415. See also Simpson v.
State, 87 TexCr 277, 220 SW 777.
85Pelfrey v. Commonwealth, 247
Ky 484, 57 SW2d 474.
86Kobinson v. State (TexCr), 63
SW 869.
87 West v. People, 60 Colo 488,
156 P 137; State v. Bersch, 276 Mo
397, 207 SW 809.
88 State v. Enanno, 96 Conn 420,
114 A 386.
89 Tores v. State (TexCr), 63 SW
880-.
90 Arkansas. Simmons v. State,
149 Ark 348, 232 SW 597.
Missouri. State v. Bobbst, 269
Mo 214, 190 SW 257.
Texas. Wood v. State, 120 TexCr
144, 70 SW2d 436.
9 ' Barber v. State, 64 TexCr 96,
142 SW 577.
92 Balfe v. People, 66 Colo 94, 179
P 137.
93 Sebree v. Commonwealth, 190
Ky 164, 227 SW 152.
94 State v. Pettit, 33 Idaho 326,
193 P 1015 (prosecution for statu-
tory rape).
95 Traylor v. State, 91 TexCr 262,
239 SW 982.
96Bloch v. United States, 261 F
321; Pearce v. State, S3 OklCr 273,
243 P 761 (to steal).
97 Montgomery v. State, 68 TexCr
78, 151 SW 813.
§55
INSTRUCTIONS — RULES GOVERNING
182
"felonious/'98 "sale,"99 "concealment,"1 "transport,"2 "oper-
ate/' and "Intoxicated condition," in prosecution for operating
an automobile while intoxicated,3 "money,"4 "self-defense,"5
"proximate cause,"6 "wilful, wanton, or wantonness,"7 "wilful,
deliberate, and premeditated," in murder prosecution,8
"charred," in arson prosecution,9 and "accidental," where there
was an issue as to accidental killing. f °
It is the duty of the court, in plain and concise language, to
define the offense accurately and tell the jury the essential
facts necessary to a conviction, rather than to refer them to
the indictment to determine what they must find in order to
convict. ' l The court may describe the offense in the language
of the statute,12 though a charge will ordinarily suffice which
gives the substance of the statute. ' 3 It is not necessary to give
98 Iowa. State v. Penney, 113
la 691, 84 NW 509.
Kentucky. Metcalfe v. Common-
wealth, 27 KyL 704, 86 SW 534.
Missouri. State v. Brown, 104
Mo 365, 16 SW 406; State v. Row-
land, 174 Mo 373, 74 SW 622.
»» Young v. State, 92 TexCr 277,
243 SW 472; Nelson v. State, 117
TexCr 253, 35 SW2d 443. But see
State v. Brown (MoApp), 193 SW
902 (should instruct what would con-
stitute sale of intoxicating liquor).
1 State v. McDonald, 107 Kan 568,
193- F 179,
2 Crowley v. State, 92 TexCr 103,
242 SW 472 (intoxicating liquor).
3 State v. Johnson (Mo), 55 SW2d
967.
4Guyon v. State, 89 TexCr 287,
230 SW 408.
s State v. Bailey, 190 Mo 257, 88
SW 733. But see Chappell v. State,
15 AlaApp 227, 73 S 134.
6 People v. Halbert, 78 CalApp
598, 248 P 969.
7 People v. Halbert, 78 CalApp
598, 248 P 969.
8 Commonwealth v. Robinson, 305
Pa 302, 157 A 689.
9 State v. Witham (Mo), 281 SW
32.
10 Jackson v. State, 103 TexCr
252, 280 SW 808.
1 i Illinois. Christie v. People, 206
111 337, 69 NE 33.
Missouri. State v. Brown, 104 Mo
365, 16 SW 406; State v. Scott, 109
Mo 226, 19 SW 89
New Mexico. Territory v. Baca,
11 NM 559, 71 P 460.
1 2 Arkansas. There was no
prejudice in an instruction defining
an accessory after the fact to em-
ploy, in addition to the language of
the statute, the words "shelters,
receives, relieves, comforts, or as-
sists the felon," as employed in the
common-law definition. Higgins v.
State, 136 Ark 284, 206 SW 440.
California. People v. Portch, 13
CalApp 770, 110 P 823; People v.
Bernal, 40 CalApp 358, 180 P 825;
People v. Owens, 57 CalApp 84, 206
P 473; People v. Anderson, 58 Cal
App 267, 208 P 324.
Colorado. Militello v. People, 95
Colo 519, 37 P2d 527.
Iowa. State v. Banoch, 193 la
851, 186 NW 436.
Montana. An instruction should
follow the language of the statute
and state that accessories are those
who "advise and encourage" instead
of "advise or encourage" the com-
mission of crime. State v. Geddes,
22 Mont 68, 55 P 919.
Nebraska. Alt v. State, 88 Neb
259, 129 NW 432, 35 LRA (N. S.)
1212.
Oklahoma. Smith v. State, 40
OklCr 152, 267 P 682.
Texas. See Stafford v. State, 103
TexCr 304, 280 SW 811.
1 3 California. People v. Plum, 88
CalApp 575, 263 P 862, 265 P 322;
People v. Hill, 2 CalApp2d 141, 37
P2d 849.
183
SUBJECT-MATTER
56
the jury definitions or synonyms of common English words when
used in a statute in their ordinary sense.14 The failure to give
the statutory definition of "neglected child" or "dependent child"
was an error of omission and not commission, and does not con-
stitute reversible error, in the absence of a request calling the
court's attention to the omission. ' s
§ 56. Limitation of purpose of evidence.
Where evidence is admitted for a limited purpose, the court
should instruct that the evidence is to be considered for such
purpose only and its scope and effect should be explained to the
jury.
The rule as stated is well supported by the cases. ! 6 However,
if the limited purpose of the evidence is explained to the jury at
Idaho. State v. Sheehan, 33 Idaho
103, 190 P 71.
Kansas. State v. Ireland, 72 Kan
265, 83 P 1036.
Michigan. People v. Burk, 238
Mich 485, 213 NW 717.
Missouri. State v. Miller. 93 Mo
263, 6 SW 57.
Pennsylvania. Commonwealth v.
Habecker, 113 PaSuperCt 335, 173
A 831.
Texas. Adkins v. State, 41 TexCr
577, 56 SW 63.
* 4 State v. Rombolo, 91 NJL 560,
103 A 203.
' s State v. Griffin, 93 OhApp 299,
106 NE2d 668.
1 6 Federal Aetna Life Ins. Co.
v. Kelley, 70 F2d 589, 93 ALR 471.
Alabama. Birmingham Trust &
Sav. Co. v. Currey, 175 Ala 373, 57
S 962, AnnCas 1914D, 81.
An instruction should limit effect
of evidence offered by one defendant
so as not to make it binding on
another defendant. Childers v.
Holmes, 207 Ala 382, 92 S 615.
California. Bourne v. Bourne, 43
CalApp 516, 185 P 489; Baldarachi
v. Leach, 44 CalApp 603, 186 P
1060.
Connecticut. Barlow Bros. Co. v.
Parsons, 73 Conn 696, 49 A 20-5.
District of Columbia. Simmons v.
Brooks, 63 AppDC 293, 72 P2d 86.
Illinois. Chaney v. Baker, 304 111
362, 136 NE 804; Chicago City Ry.
Co. v. Schuler, 111 IllApp 470; Lowe
v. Alton Baking & Catering Co.,
158 IllApp 458.
Indiana. Pittsburgh, C., C. & St.
L. R. Co. v. Parish, 28 IndApp 189,
62 NE 514, 91 AmSt 120.
Iowa. Kircher v. Larchwood, 120
la 578, 95 NW 184; Miller v. Miller,
154 la 344, 134 NW 1058.
Kansas. Hammon v. Midland Val-
ley R. Co., Ill Kan 58, 206 P 330;
May v. Kansas Power & Light Co.,
134 Kan 470, 7 P2d 108.
Kentucky. Louisville Gas Co. v.
Kentucky Heating Co., 142 Ky 253,
134 SW 205; South Covington & C.
Street Ry. Co. v. Finan's Admx., 153
Ky 340, 155 SW 742.
Michigan. Dalton v. Dregge, 99
Mich 250, 58 NW 57; Dolson v. Cen-
tral Business Mens Assn., 235 Mich
80, 209 NW 95.
Missouri. State v. Chick, 282 Mo
51, 221 SW 10; McMorrow v. Dowell,
116 MoApp 289, 90 SW 728; Down-
ing v. St. Louis-San Francisco Ry.
Co., 220 MoApp 260, 285 SW 791;
Citizens Trust Co. v. Tindle (Mo
App), 194 SW 1066.
Nebraska. Cleland v. Anderson,
66 Neb 252, 92 NW 306, 96 NW
212, 98 NW 1075, 5 LRA (N. S.)
136.
Ohio. Knight v. State, 54 OhSt
365, 43 NE 995; Barnett v. State,
104 OhSt 298, 135 NE 647, 27, ALR
351; Toledo v. Meinert, 15 OhCirCt
56
INSTRUCTIONS— KULES GOVERNING
184
the time of its admission, it is not necessary for the court to
later give a limiting instruction. J 7
If evidence is pertinent to some issues but not to others,
the court should instruct the jury as to what issue the evidence
is referable.18 Similarly with testimony incompetent for one
purpose, but competent for another.19
Evidence admitted solely to impeach testimony requires an
instruction that such evidence is to be considered for that pur-
pose and no other.20 So, in an accident case where evidence of
(N. S.) 545, 31 OhCirDec 118; Lake
Shore Elec. Ry. Co. v. Mills, 16 Oh
CirCt (N. S.) 62, 31 OhCirDec 146.
Vermont. State v. Bolton, 92 Vt
157, 102 A 489.
West Virginia. Welch v. King, 82
WVa 258, 95 SE 844.
l7Esty v. Walker, 222 MoApp
619, 3 SW2d 744.
1 8 Southern Ry. Co. v. Hooper, 16
TennApp 112, 65 SW2d 847.
1 9 Alabama. Johnson v. Day,
230 Ala 165, 160' S 340.
California. The restricting charge
should be requested. People v. Ru-
balcado, 56 CalApp 440, 205 P 709.
Kansas. Minor v. Atchison, T. &
S. F. Ry. Co., 97 Kan 260, 155 P 35.
Kentucky. In a damage action
arising from an automobile accident
where a physician employed by the
defendant^ liability insurer testified
for the defendant, it was permissible
for the cross-examination of the wit-
ness to go into his employment by
the insurer, but the court properly
limited the effect of such cross-ex-
amination to the question of credi-
bility of the witness. Carter v.
Ward, 251 Ky 774, 65 SW2d 996.
Massachusetts. Ferris v. Ray
Taxi Service Co., 259 Mass 401, 156
NE 538.
Missouri. Courter v. G. W. Chase
& Son Merc. Co., 222 MoApp 43,
299 SW 622.
Nebraska. Nichols v. Owens Mo-
tor Co., 121 Neb 105, 236 NW 169.
Ohio. Clyne v. State, 123 OhSt
234, 174 NE 767.
Tennessee. In an action involving
injury by which a boy's eye was shot
out by another boy using an air
rifle, it was proper for the court to
charge the jury at some length that
they should not consider as bearing
on the reputation of the boy who did
the shooting a long line of inquiries
respecting specific acts of miscon-
duct on his part, directed at him by
the attorney for the plaintiff. High-
saw v. Creech, 17 TennApp 573, 69
SW2d 249.
Texas. Grice v. Herrick Hdw. Co.
(TexCivApp), 219 SW 502.
West Virginia. Goodwin v. Tony
Pocahontas Coal Co., 88 WVa 49, 106
SE76.
20 Federal. Woody v. Utah Power
& Light Co., 54 F2d 220;
Alabama. Thomas Furnace Co. v.
Carroll, 204 Ala 263, 85 S 455.
California. People v. White, 50
Cal2d 428, 325 P2d 985 (not error, in
absence of request, for judge to
fail to instruct on limiting rebuttal
impeachment testimony) .
Connecticut. Barlow Bros. Co. v.
Parsons, 73 Conn 696, 49 A 205.
Georgia. Griggs v. State, 17 Ga
App 301, 86 SE 726.
Illinois. People v. Brewer, 355 111
348, 189 NE 321.
Iowa. Law v. Hemmingsen, —
la — , 89 NW2d 386.
Kentucky. Georgetown Water,
Gas, Elec. & Power Co. v. Neale,
137 Ky 197, 125 SW 293; Watson v.
Kentucky & I. Bridge & R. Co., 137
Ky 619, 126 SW 146, 129 SW 341.
Missouri. Buckry-Ellis v. Mis-
souri Pacific Ry. Co., 158 MoApp
499, 138 SW 912.
New Hampshire. Connecticut River
Power Co. v. Dickinson, 75 NH 353,
74 A 585.
185 SUBJECT-MATTER § 56
the speed of buses, similar to the one involved in the collision
was admitted, the court should have told the jury that the evi-
dence is limited to the question of the credibility of witnesses.2 '
If there are two or more defendants, evidence against one
may be admissible, but the other defendants are entitled to an
instruction that the effect of such evidence must be limited
to the codefendant against whom it is competent.22 For exam-
ple, where the owner of an automobile and one who was driver
when an accident occurred are sued together, testimony admis-
sible only against the driver should be limited by the court's
instructions and the jury told not to consider it as against
the owner.23
Other illustrations in civil cases: The court should tell the
jury that a view of the premises is not evidence, but to help the
jury to understand the evidence.24 And where a statute makes
a tax deed prima facie evidence of the regularity of the pro-
ceedings from the time the property was appraised by the
assessor to the date of the deed, the presumption in favor of
the instrument may be overcome by competent evidence and
the court should therefore point out to the jury the purpose for
which the deed is introduced in evidence and the effect of its in-
troduction.25 In a libel action evidence of other publications
than those upon which the action is based may be admitted, but
only for the purpose of determining malice, and the instructions
to the jury should limit the evidence to that purpose.26 So
in an action against a city for personal injuries sustained by
reason of a defective highway, evidence that a party of men and
women had been drinking and were on their way to a road-
house, "where they expected to get more liquor and have a high
time," is competent for the purpose of showing a want of due
care on their part, but the purpose and effect of the introduction
of such testimony should be limited, under proper instructions
from the court, to the question of due care.27 So, in a breach of
promise case the court should tell the jury that evidence of de-
fendant's reputation for wealth in the community was received
to show the condition of life denied plaintiff by the breach and
New Jersey. Moloney v. Public 23 In re Thompson's Estate, 211
Service Ry. Co., 92 NIL 539, 106 la 935, 234 NW 841.
A 376. 24 Murray v. Vandalia R. Co., 202
Texas. Ice v. State, 84 TexCr IllApp 362.
509, 208 SW 343; James v. State, 25 Ropes v. Minshew, 51 Pla 299,
86 TexCr 598, 219 SW 202. 41 S 538.
2 ' Consolidated Coach Corp. v. 26 Peck v. Coos Bay Times Pub-
Hopkins* Admr., 238 Ky 136, 37 lishing: Co., 122 Or 408, 259 P 307.
SW2d 1. 27 Guertin v. Hudson, 71 NH 505,
22 Stroud v. Payne, 124 Neb 612, 53 A 736.
247 NW 595.
56
INSTRUCTIONS — RULES GOVERNING
186
not to prove the ability of defendant to pay damages.28 So also,
in an action to recover for an alleged nuisance, where evidence
otherwise inadmissible is admitted with the view of showing
the unhealthy condition of certain premises, it is proper prac-
tice to inform the jury that the testimony is to be considered by
them for this purpose alone.29
A deposition should receive the same fair and impartial
consideration as testimony in open court,30 but the court should
instruct that a deposition may not be considered against a party
not notified that it was to be taken.31 Where the court has
stated the issues made by the pleadings, he should go further
and tell the jury that the pleadings are not evidence.32
The rule is the same as to the indictment in a criminal case.
The indictment is a mere formal charge and not any evidence
of guilt, but the failure to charge to this effect is not ordinarily
reversible error.33 The charge in a criminal case should make
clear that the admission of evidence of other offenses is not to
show guilt of the accused of the offense charged, but for other
purposes, such as motive,34 guilty knowledge,35 credibility,36
intent,37 or corroboration.38 Testimony of a police officer, since
deceased, at a preliminary examination should be limited to
those defendants present at the preliminary examination.39
The right to have the jury limited as to the purpose of
evidence may be waived by failure to request the instruction.40
** Fellers v. Howe, 106 Neb 495,
184 NW 122.
29 Cohen v. Bellenot (Va), 32 SE
455.
30 HersMser v. Chicago, B. & Q.
R. Co., 102 Neb 820, 170 NW 177.
3 r Millspaugh v. Missouri Pacific
Ry. Co., 138 MoApp 31, 119 SW 993.
32 Western & A. R. Co. v. Meigs,
74 Ga 857. See also Curtis v. State,
28 GaApp 219, 110 SE 907.
33 State v. Baker, 136 Mo 74, 37
SW 810; State v. Darrah, 152 Mo
522, 54 S-W 226; State v. Hollings-
worth, 156 Mo 178, 56 SW 1087.
34 Arizona. Judd v. State, 41 Ariz
176, 16 P2d 720.
Georgia. Manning- v. State, 153
Ga 184, 111 SB 658.
Texas. See also McClain v. State,
89 TexCr 48, 229 SW 550.
35 Federal. MacDonald v. United
States, 264 F 733.
Arkansas. Norris v. State, 170
Ark 484, 280' SW 398.
Texas. Fry v. State, 86 TexCr 73,
215 SW 560.
3<?Gielow v. State, 198 Ind 248,
153 NE 409; Smith v. State, 198
Ind 614, 154 NE 370; State v.
Brownlow, 89 Wash 582, 154 P
1099.
37 People v. Mullaly, 77 CalApp
60, 245 P 811; State v. Derry, 202
la 352, 209 NW 514; State v. In-
gram, 219 la 501, 258 NW 186.
38 State v. Harris, 51 Mont 496,
154 P 198.
39Bianchi v. State, 169 Wis 75,
171 NW 639.
40 Anderson v. Commonwealth,
205 Ky 369, 265 SW 824.
187
SUBJECT-MATTER
§57
§ 57. Lower grade of offense.
An instruction on a lower grade of offense than that charged
in the indictment, but necessarily included therein, is proper
where the evidence justifies the giving of such an instruction.
If the evidence tends to support a lesser offense than that
charged in the indictment, it is the duty of the court to charge
the jury with reference to such lesser offense.41 But such in-
struction should not be given where the evidence shows that
the accused is guilty of the greater offense or not guilty
at all.42
41 Alabama. Null v. State, 16
AlaApp 542, 79 S 678.
Arizona. Stokes v. Territory, 14
Ariz 242, 127 P 742.
Arkansas. Pickett v. State, 91
Aik 570, 121 SW 732.
California. In People v. Dukes, 2
CalApp2d 698, 38 P2d 805, it was
held error for the court to tell the
jury in a prosecution for conspiracy
to commit robbery, to fix the degree
of the crime in the event they found
the accused guilty.
Georgia. Moore v. State. 151 Ga
648, 108 SE 47.
Illinois. People v. Beil, 322 111
434, 153 NE 639.
Indiana. Koehler v. State, 188
Ind 387, 123 NE 111.
Iowa. State v. Desmond, 109 la
72, 80 NW 214; State v. Asbury,
172 la 606, 154 NW 915, AnnCas
1918A, 856; State v. Ellington, 200
la 636, 204 NW 307.
Kentucky. McCandless v. Com-
monwealth, 170 Ky 301, 185 SW
1100.
Louisiana. State v. Foster, 149
La 521, 89 S 680.
Minnesota. State v. Brinkman,
145 Minn 18, 175 NW 1006.
Missouri. State v. Musick, 10"!
Mo 260, 14 SW 212; State v. Buck-
ner, 335 Mo 229, 72 SW2d 73.
Nebraska. Wozniak v. State, 103
Neb 749, 174 NW 298; Fulton v.
State, 163 Neb 759, 81 NW2d 177.
New York. People v. Hassan, 196
AppDiv 89, 187 NYS 115.
North Carolina. State v, Lutter-
loh, 188 NC 412, 124 SE 752; State
v. Hardee, 192 NC 533, 135 SE 345.
Ohio. Windle v. State, 102 OhSt
439, 132 NE 22; State v. Fleming,
_ OhSt — , 142 NE2d 546.
Oklahoma. Nail v. State, 18 Okl
Cr 40, 192 P 592.
Texas. Jones v. State, 86 TexCr
371, 216 SW 884.
Utah. State v. Cerar, 60 Utah
208, 207 P 597; State v. Hyams, 64
Utah 285, 230 P 349.
Washington. State v. McPhail,
39 Wash 199, 81 P 683; State v.
Gottstein, 111 Wash 600, 191 P 766;
State v. Donofrio, 141 Wash 132,
250 P 951.
Wisconsin. Kilkelly v. State, 43
Wis 604; Fertig v. State, 100 Wis
301, 75 NW 960; Hempton v. State,
111 Wis 127, 86 NW 596.
42 Federal. Davis v. United
States, 165 US 373, 41 LEd 750, 17
SupCt 360; Perkins v. United States,
142 CCA 638, 228 F 408.
Alabama. Clarke v. State, 117
Ala 1, 23 S 671, 67 AniSt 157;
Braham v. State, 143 Ala 28, 38 S
919; Pinkerton v. State, 146 Ala
684, 40 S 224; Thomas v. State, 150
Ala 31, 43 S 371; Fowler v. State,
155 Ala 21, 45 S 913, Houston v.
State, 208 Ala 660, 95 S 145; Wil-
liams v. State, 208 Ala 620, 95 S 31;
Durden v. State, 18 AlaApp 498, 93
S 342.
Arkansas. Kinslow v. State, 85
Ark 514, 109 SW 524; Thompson v.
State, 88 Ark 447, 114 SW 1184;
Guerin v. State, 155 Ark 50, 243 SW
968.
California. People v. Lee Gam,
69 Cal 552, 11 P 183; People v.
Rogers, 163 Cal 476, 126 P 143; Peo-
§57
INSTRUCTIONS — RULES GOVERNING
188
pie v. Lapara, 181 Gal 66, 183 P 545;
People v. Ong Git, 23 CalApp 148,
137 P 283; People v. Dad, 51 CalApp
182, 196 P 506; People v. Moon, 7
CalApp2d 96, 45 P2d 384.
Colorado. Johnson v. People, 33
Colo 224, 80 P 133, 108 AmSt 85;
Mitsunaga v. People, 54 Colo 102,
129 P 241.
Connecticut. State v. Cianflone,
98 Conn 454, 120 A 347.
Florida. Starke v. State, 49 Fla
41, 37 S 850.
Georgia. Washington v. State, 36
Ga 222; Jackson v. State, 91 Ga 271,
18 SE 298, 44 AmSt 22; Allen v.
State, 133 Ga 260, 65 SE 431; Clyde
v. State, 138 Ga 767, 76 SE 49;
Devereaux v. State, 140 Ga 225, 78
SE 849; Griggs v. State, 148 Ga
211, 96 SE 262; Stevens v. State,
149 Ga 24, 98 SE 604; Felder v.
State, 149 Ga 538, 101 SE 179; Row-
land v. State, 150 Ga 733, 105 SE
301; Farmer v. State, 154 Ga 486,
114 SE 639; Lawhorn v. State, 155
Ga 373, 116 SE 822; Brooks v. State,
24 GaApp 274, 100 SE 655; Brew-
ington v. State, 24 GaApp 594, 101
SE 753.
Illinois. Dacey v. People, 116 111
555, 6 NE 165; People v. Tokoly,
313 111 177, 144 NE 808.
Iowa. State v. Bums, 124 la 207,
99 NW 721; State v. Dean, 148 la
566, 126 NW 962; State v. Brown,
152 la 427, 132 NW 862; State v.
Dimmitt, 184 la 870, 169 NW 137;
State v. Flory, 203 la 918, 210 NW
961; State v. Marshall, 206 la 373,
220 NW 106; State v. Stennett, 220
la 388, 260 NW 732.
Kansas. State v. Kornstett, 62
Kan 221, 61 P 805; State v. Allen,
98 Kan 778, 160 P 795, reh. in 99
Kan 187, 160 P 795.
Kentucky. Warner v. Common-
wealth, 27 KyL 219, 84 SW 742;
Jolly v. Commonwealth, 110 Ky 190,
22 KyL 1622, 61 SW 49, 96 AmSt
429; McElwaine v. Commonwealth,
154 Ky 242, 157 SW 6; Wallace v.
Commonwealth, 167 Ky 277, 180 SW
381; Frasure v. Commonwealth, 169
Ky 620, 185 SW 146; Harris v.
Commonwealth, 183 Ky 542, 209 SW
509; Hensley v. Commonwealth, 197
Ky 563, 247 SW 742; Meredith v.
Commonwealth, 218 Ky 571, 291 SW
745. See also Foster v. Common-
wealth, 33 KyL 975, 112 SW 563.
Louisiana. State v. Ramkissoon-
singhjiki, 163 La 750, 112 S 708.
See State v. Thomas, 50 LaAnn 148,
23 S 250.
Michigan. People v. Beverly, 108
Mich 509, 66 NW 379; People v. Ut-
ter, 217 Mich 74, 185 NW 830.
Minnesota. State v. Nelson, 91
Minn 143, 97 NW 652; State v. Mor-
ns, 149 Minn 41, 182 NW 721;
State v. Coon, 170 Minn 343, 212
NW 588.
Mississippi. Jones v. State, 129
Miss 457, 92 S 586.
Missouri. State v. Wilson, 88 Mo
13; State v. Bulling, 105 Mo 204,
15 SW 367, 16 SW 830; State v.
Fairlamb, 121 Mo 137, 25 SW 895;
State v. Pollard, 139 Mo 220', 40 SW
949; State v. Hyland, 144 Mo 302,
46 SW 195; State v. Baker, 146 Mo
379, 48 SW 475; State v. Bronstine,
147 Mo 520, 49 SW 512; State v.
Garrison, 147 Mo 548, 49 SW 508;
State v. Lewis, 181 Mo 235, 79 SW
671; State v. Henderson, 186 Mo
473, 85 SW 576; State v. Sassanian,
214 Mo 695, 114 SW 590; State v.
Sartino, 216 Mo 408, 115 SW 1015;
State v. Myers, 221 Mo 598, 121 SW
131; State v. McKenzie, 228 Mo
385, 128 SW 948; State v. Butler,
247 Mo 685, 153 SW 1042; State
v. Lewis, 273 Mo 518, 201 SW 80;
State v. Liolios, 285 Mo 1, 225 SW
941; State v. Murphy, 292 Mo 275,
237 SW 529; State v. Weber (Mo),
188 SW 122; State v. Stenzel (Mo),
220 SW 882; State v. Hayes (Mo),
247 SW 165.
Montana. State v. McGowan, 36
Mont 422, 93 P 552; State v. Fisher,
54 Mont 211, 169 P 282.
Nebraska. Johnke v. State, 68
Neb 154, 94 NW 158, 104 NW 154;
Williams v. State, 103 Neb 710, 174
NW 302; Braunie v. State, 105 Neb
355, 180 NW 567, 12 ALR 658.
189
SUBJECT-MATTER
57
The court is not relieved of the duty of instructing on the
lesser degree because of a belief that the evidence relating
to it is weak and inconclusive.43 The rule is the same in
cases where the evidence is wholly circumstantial as where
the evidence is direct.44
Illustrations: The weight of authority is that where there
is no evidence indicating guilt of a lower degree than murder
in the first degree, error cannot be based on the court's giving
of an instruction to find him guilty of the higher degree or to
acquit him.43 Where the offense charged consists of several de~
New Jersey. State v. Moynihan,
93 NJL 253, 106 A 817.
New Mexico. State v. Granado,
17 NM 542, 131 P 497; State v. Lut-
trell, 28 NM 393, 212 P 739.
New York. People v. Sehleiman,
197 NY 383, 90 NE 950', 27 LRA
(N. S.) 1075, 18 AnnCas 588; Peo-
ple v. Chapman, 224 NY 463, 121
NE 381; People v. Van Norman,
231 NY 454, 132 NE 147; People v.
Smith, 187 NYS 836.
North Carolina. State v. Price,
158 NC 641, 74 SE 587.
North Dakota. State v. Sanders,
14 ND 203, 103 NW 419.
Ohio. Dresback v. State, 38 OhSt
365; State v. Schaeffer, 96 OhSt
215, 117 NE 220, LRA 1918B, 945,
AnnCas 1918E, 1137.
Oklahoma. Hopkins v. State, 4
OklCr 194; 108 P 420, 111 P 947;
Fritz v. State, 8 OklCr 342, 128 P
170. Williams v. State, 12 OklCr 39,
151 P 900.
In a prosecution for homicide the
court is not required to charge on
involuntary manslaughter if the evi-
dence clearly indicates an intentional
killing. Collins v. State, 22 OklCr
203, 210 P 285, 30 ALR 811.
Texas. Hudson v. State, 40 Tex
12; Henning v. State, 24 TexApp
315, 6 SW 137; McCoy v. State, 27
TexApp 415, 11 SW 454; Maxwell v.
State, 31 TexCr 119, 19 SW 914;
Smith v. State, 40 TexCr 391, 50
SW 938; Turner v. State, 48 TexCr
585, 89 SW 975; Washington v.
State, 50 TexCr 356, 96 SW 1084;
Shelton v. State, 54 TexCr 588, 114
SW 122; King v. State, 57 TexCr
363, 123 SW 135; Treadway v. State,
65 TexCr 208, 144 SW 655; Foster
v. State, 68 TexCr 38, 150 SW 936;
Thompson v. State, 77 TexCr 140,
177 SW 503; Steel v. State, 82 TexCr
483, 200 SW 381; Cundff v. State,
86 TexCr 476, 218 SW 771; Pickens
v. State, 86 TexCr 657, 218 SW 755;
Walker v. State, 89 TexCr 76, 229
SW 527; Galloway v. State, 92 TexCr
506, 244 SW 549.
Where the defense is insanity,
there is no ground for the submis-
sion to the jury of the question of
irresistible impulse. McCann v.
State, 129 TexCr 105, 83 SW2d 967.
Utah. State v. Thome, 41 Utah
414, 126 P 286, AnnCas 1915D, 90.
Washington. State v. Gottstein,
111 Wash 600, 191 P 766.
Wisconsin. Pleimling v. State, 46
Wis 516, 1 NW 278; Cornell v. State,
104 Wis 527, 80 NW 745.
Under this general rule the doc-
trine is established and enforced by
most of the courts that it is not
error to refuse or fail to charge on
manslaughter where the evidence
showed the defendant guilty of mur-
der or not guilty at all. Dietz v.
State, 149 Wis 462, 136 NW 166,
AnnCas 1913C, 732; Krueger v.
State, 171 Wis 566, 177 NW 917.
43 State v. Cunningham, 120 Kan
430, 243 P 1006.
4^ State v. Trujillo, 27 NM 594,
203 P 846.
46 United States. Sparf v. United
States, 156 US 51, 39 LEd 343, 15
SupCt 273.
Alabama. Jackson v. State, 226
Ala 72, 145 S 656.
§ 57 INSTRUCTIONS — RULES GOVERNING 190
grees, the court should instruct on the law of an attempt to com-
mit the crime charged where there is evidence on that issue.46 If
in the trial on an indictment for murder, it is possible under the
evidence to acquit the defendant of murder in the first degree,
of murder in the second degree, and of manslaughter because
the evidence fails to establish an essential element of such of-
fenses, it is competent for the jury, where the evidence warrants
it, to find the defendant guilty of assault and battery only, and
under such circumstances it is error to the prejudice of the de-
fendant to refuse a request to charge on the lesser offense of
assault and battery.47 In a prosecution under an indictment
charging armed robbery, the trial court is warranted in charging
on the lesser offense of assault with intent to commit robbery,
where there is substantial evidence of such offense.48 An indict-
ment charging, in separate counts, shooting with intent to kill
and shooting with intent to wound includes the lesser offenses
of assault and battery and assault, and where upon the trial,
the evidence tends to support such lesser offense or offenses,
it is the duty of the court to charge the jury with reference
to such lesser offense or offenses.49 Where a defendant is in-
dicted and tried for "purposely and wilfully" killing an officer,
and defendant's testimony tends to prove that such killing, al-
though unintentional, was caused by the defendant while resist-
ing arrest, the court should change the degree of manslaughter.50
Where one is indicted and tried for murder in the attempted per-
petration of robbery, under statute, no instruction of any lesser
California. People v. King, 27 Cal the court refused to charge on the
507, 87 AmDec 95. lower degrees).
Colorado. Sevilla v. People, 65 Texas. Darlington v. State, 40
Colo 437, 177 P 135. TexCr 333, 50 SW 375.
Georgia. Dotson v. State, 129 Ga Washington. State v. McPhail,
727, 59 SE 774. 39 Wash 199, 81 P 683.
Michigan. People v. Repke, 103 Wisconsin. Cupps v. State, 120
Mich 459, 61 NW 861; People v. Wis 504, 97 NW 210, 98 NW 546,
Nunn, 120 Mich 530, 79 NW 800. 102 AmSt 996.
Minnesota. State v. Hanley, 34 46 Georgia. Bailey v. State, 153
Minn 430, 26 NW 397. Ga 413, 112 SE 453 (rape).
New Jersey. State v. Moynihan, Kansas. State v. Franklin, 69
93 NJL 253, 106 A 817; State v. Kan 798, 77 P 588.
Fiore, 93 NJL 362, 108 A 363, affd. Michigan. People v. Allie, 216
in 94 NJL 477, 110 A 909. Mich 133, 184 NW 423 (robbery).
North Carolina. State v. McKin- 47 State v. Cochrane, 151 OhSt
ney, 111 NC 683, 16 SE 235; State 128, 38 OhO 575, 84 NE2d 742.
v Spivey 151 NC 676, 65 SE 995; 48 State v. Curtis, 149 OhSt 153,
State v. Spencer, 176 NC 709, 97 36 OhO 500, 78 NE2d 46.
SE 155. 49 Windle v. State, 102 OhSt 439,
Ohio. Bandy v. State, 102 OhSt 132 NE 22.
384, 131 NE 499, 21 ALR 594 (where so Freeman v. State, 119 OhSt
250, 163 NE 202.
191 SUBJECT-MATTER § 57
grade of homicide than murder in the first degree is requisite or
proper when evidence to support the same is lacking.51
Reasonable doubt and lesser offenses. The weight of author-
ity supports the view that the court should tell the jury that
in case they have a reasonable doubt from the evidence between
two degrees, they should convict of the lower only, and that
it is not sufficient for the court to charge generally that the
guilt of the defendant must be proved beyond a reasonable
doubt.52 This rule has been applied as between murder and man-
slaughter,53 and between degrees of crime in a rape prosecu-
tion.54
Suppose an instruction on a lower offense is given but there
is no evidence as to guilt of the lower offense? If the accused
is convicted of the higher offense, is he entitled to a new trial ?
Defendant cannot complain because it was error in his favor,
and he is held to be not prejudiced by the instruction.55
Suppose an instruction on a lower offense which is not sup-
ported by the evidence, the instruction not requested by the
defendant who is convicted of the lower offense ? Is he entitled
to a new trial? The result on appeal has been made to depend
upon whether or not the instruction given was prejudicial to the
defendant under the evidence in the case.56 So, if the evidence
warrants conviction of the higher degree and does not warrant
a verdict of not guilty, or if there is some evidence which, if
believed, warrants an acquittal, it is not reversible error in behalf
5 ' Malone v. State, 130 OhSt 443, 54 State v. Ingram, 219 la 501, 258
5 OhO 59, 200 NE 473. NW 186.
52 Georgia. Bailey v. State, 153 5S Georgia. Darby v. State, 79
Ga 413, 112 SE 453; Sills v. State, Ga 63, 3 SE 663.
36 GaApp 103, 135 SE 758. But Missouri. State v. Fitzgerald, 130
see Ramsey v. State, 92 Ga 53, 17 Mo 407, 32 SW 1113; State v. Kin-
SE 613. dred, 148 Mo 270, 49 SW 845.
Indiana. Coolman v. State, 163 Montana, State v. Vanella, 40
Ind 503, 72 NE 568. Mont 326, 106 P 364, 20 AnnCas 398.
Iowa. State v. Asbury, 172 la Texas. Wheatly v. State (TexCr),
606, 154 NW 915, AnnCas 1918A, 39 SW 672.
856. Washington. State v. Quinn, 56
Kentucky. Shelton v. Common- Wash 295, 105 P 818.
wealth, 145 Ky 543, 140 SW 670; S6 Georgia. Pugh v. State, 114
Hall v. Commonwealth, 219 Ky 446, Ga 16, 39 SE 875; McBeth v. State,
293 SW 961. 122 Ga 737, 50 SE 931; James v.
Texas. Richardson v. State, 91 State, 123 Ga 548, 51 SE 577.
TexCr 318, 239 SW 218, 20 ALR Mississippi. Parker v. State, 102
1249, and extended note at page Miss 113, 58 S 978; Walker v. State,
1258; Sparks v. State, 108 TexCr 367, m Miss 517, 86 S 337.
300 SW 938. New Mexico. State v. Pruett, 27
53 O'Neil v. State, 55 OklCr 388, NM 576, 203 P 840, 21 ALR 579.
31 P2d 886; Miller v. State, 139 Wis Washington. State v. Underwood,
57, 119 NW 850. 35 Wash 558, 77 P 863.
§ 58 INSTRUCTIONS — RULES GOVERNING 192
of one convicted of the lower degree that the court submitted
such degree, though there was no evidence supporting it.57
Where statutes exist expressly permitting a conviction on a
lower grade, even without supporting evidence, the giving of
an instruction of the lower degree is not reversible error.58
In Pennsylvania, the court has no authority to tell the jury
what the verdict must be, and under this rule it has no power
to instruct in a murder case that the verdict must be either
second degree murder or an acquittal.59 But in Wisconsin, in
a case where it appeared that upon the undisputed evidence,
the defendant was guilty of a criminal homicide, it was held
proper to instruct the jury that it was their duty to determine
the degree of murder or manslaughter of which defendant was
guilty, and while they had the power to acquit, acquittal
would be contrary to the undisputed evidence and the law.60
§ 58. Insanity of accused.
The question of the insanity of the accused at the time of
the commission of the crime should be submitted where there
is testimony tending to show that the accused was mentally
incapable of committing the crime.
The instruction should be given even though testimony as
to insanity is slight compared with the contrary testimony.61
57 Arkansas. Rogers v. State, 136 Ohio. Dresback v. State, 38 OhSt
Ark 161, 206 SW 152. 365.
California, People v. Huntington, Oklahoma. Lytton v. State, 12
138 Cal 261, 70 P 284; People v. OklCr 204, 153 P 620; Love joy v.
Tugwell, 32 CalApp 520, 163 P 508. State, 18 OklCr 335, 194 P 1087;
Colorado. Murphy v. People, 9 Wilmoth v. State, 20 OklCr 453,
Colo 434, 13 P 528. 203 P 1055, 21 ALR 590.
Georgia. Berry v. State, 122 Ga Virginia. Burton v. Common-
429, 50 SE 345; Bryant v. State, 19 wealth, 108 Va 892, 62 SE 376.
GaApp 144, 91 SE 215; McCrackin Washington. State v. Howard, 33
v. State, 24 GaApp 195, 99 SE 435. Wash 250, 74 P 382; State v. Under-
Idaho. State v. Alcorn, 7 Idaho wood, 35 Wash 558, 77 P 863.
599, 64 P 1014, 97 AmSt 252; State 5S Morrison v. State, 42 Fla 149,
v. Phinney, 13 Idaho 307, 89 P 634, 28 S 97; Clemmons v. State, 43 Fla
12 LRA (N. S.) 935, 12 AnnCas 200, 30 S 699; State v. West, 202
1079. Mo 128, 100' SW 478; State v.
Illinois. People v. Schultz, 267 Bobbitt, 215 Mo 10, 114 SW 511;
111 147, 107 NE 853. State v. Sebastian, 215 Mo 58, 114
Iowa. State v. Bertoch (la), 79 SW 522; State v. Whitsett, 232 Mo
NW 378. 511, 134 SW 555.
Kentucky. Higgins v. Common- 59 Commonwealth v. Green, 292
wealth, 142 Ky 647, 134 SW 1135. Pa 579, 141 A 624.
New Mexico. See State v. Pruett, eo Schmidt v. State, 159 Wis 15,
27 NM 576, 203 P 840, 21 ALR 149 NW 388, AnnCas 1916E, 107.
579 (where the submitting of the 6 ' Alabama. In Marlow v. State,
lower degree was held error in the 21 AlaApp 623, 111 S 49, it was
case). held that the court should have in-
193
SUBJECT-MATTER
§58
Nor should the court disparage the defense.62 For instance,
the court should not tell the jury that they were not to take
evidence of mental irresponsibility as an excuse to commit
crime, but that they should take it into consideration with
the other evidence in the case to determine whether defendant
had the capacity to distinguish between right and wrong.63
The Supreme Court of Colorado, addressing itself to this sub-
ject, has said: "Care should be observed to state the rule
governing accountability to the law, rather than to attempt to
define insanity or any of the various recognized forms of disease
of the mind, and the law requires that the instructions to this
end be couched in plain and comprehensive terms, consistent with
approved scientific determinations."64
A proper statement of the law on insanity has been held
contained in an instruction which advised the jury that the
term "insanity" in the law means such abnormal condition of
mind, from any cause, as renders the afflicted one incapable of
distinguishing between right and wrong in the given instance
and so rendering him unconscious of the punishable character
of his act.
structed the jury to consider whether
the accused was weak-minded, as
bearing upon the credibility of his
statement.
Georgia. Patterson v. State, 124
Ga 408, 52 SE 534.
Kansas. State v. Newman, 57
Kan 705, 47 P 881.
North Dakota. State v. Shahane,
56 ND 642, 219 NW 132.
Ohio. Blackburn v. State, 23 Oh
St 146.
Texas. There is no necessity for
instruction on emotional insanity
where the evidence does not raise
that issue. Hurst v. State, 40 TexCr
378, 46 SW 635, 50 SW 719.
62 California. People v. Young,
140 CalApp 456, 35 P2d 354 (where
the court's charge was held not to
be in disparagement) .
There was no prejudicial error in
the instruction in a prosecution for
assault with a deadly weapon that
the defense of insanity should be
received with caution and applied
with equal force where the defense
was that the defendant was uncon-
scious of his act. People v. Nihell,
144 Cal 200, 77 P 916.
Montana. An instruction dispar-
ages defense of insanity which says
that the defense is one which may
be, and sometimes is, resorted to in
cases where the proof of the act is
so complete that any other means
of avoiding conviction and escaping
punishment seems hopeless. State
v. Crowe, 39 Mont 174, 102 P 579,
18 AnnCas 643.
Nevada. State v. Behiter, 55 Nev
236, 29 P2d 1000 (recognizing the
rule, but holding that the defense
was not disparaged by the instruc-
tion given).
Ohio. Sharkey v. State, 4 OhCirCt
101, 2 OhCirDec 443.
South Carolina. It is not dis-
paragement for the court to remark
that he could not recall during his
experience another case in which
temporary insanity was relied upon
as a defense. State v. Stalvey, 146
SC 275, 143 SE 817.
63 State v. Saffron, 143 Wash 34,
254 P 463.
64 Oldham v. People, 61 Colo 413,
158 P 148.
§58
INSTRUCTIONS — RULES GOVERNING
194
The law does not recognize a form of insanity in which there
exists capacity to distinguish between right and wrong and con-
sciousness of the wrongful nature of the act, without power to
abstain from it.65 An instruction has been approved wherein
the jury were advised that in establishing the defense of in-
sanity it was only necessary that the jury be reasonably satis-
fied that the defendant was insane and unable to distinguish
between the right and wrong.66 It is proper to reject a request
to charge that the defendant would be excused for robbery if
he was temporarily insane from the drinking of whisky and
if his mind was too weak to resist the desire to drink.67
The court should not explain to the jury what it will be
the court's duty to do in the event the jury determines the
defendant was insane at the time the crime was committed
or at the time of the trial.68
The burden of proof of the defense of insanity rests on the
accused,69 and the fact must be proved to the reasonable satis-
faction of the jury.70 Where defendant has been adjudged in-
sane by a court, there is a presumption of the continuance of
the condition and the court should charge that the burden is on
the state to show that the insane condition has terminated and
that accused was sane at the time the crime was committed.71
6s Duthey v. State, 131 Wis 178,
111 NW 222, 10 LRA (N. S.) 1032;
Oborn v. State, 143 Wis 249, 126
NW 737, 31 LRA (N. S.) 966.
An instruction on the test of ac-
countability was not erroneous which
informed the jury that if at the time
of committing the crime the de-
fendant had a sufficient degree of
reason to discern between moral
good and evil, then he was responsi-
ble for his acts, but that if he was
unable to distinguish between right
and wrong he should be acquitted.
Bothwell v. State, 71 Neb 747, 99
NW 669.
66 State v. Douglas, 312 Mo 373,
278 SW 1016.
67 Bryant v. State, 122 TexCr 385,
55 SW2d 1037.
68 People v. Moor, 355 111 393, 189
NE 318.
69 United States. Matheson v.
United States, 227 US 540, 57 LEd
631, 33 SupCt 355.
California. People v. Wells, 145
Cal 138, 78 P 470; People v. Rogers,
113 CalApp 1, 297 P 643.
Idaho. State v. Shuff, 9 Idaho
115, 72 P 664.
Nebraska. Snider v. State, 56 Neb
309, 76 NW 574.
70 Minder v. State, 113 Ga 772,
39 SE 284; State v. Duestrow, 137
Mo 44, 38 SW 554, 39 SW 266.
An instruction on insanity was
proper which told the jury that
every man is presumed to be sane
till the contrary is proved, and where
mental imbecility is interposed as
a defense, the defendant must prove
it to their reasonable satisfaction,
and that it must be proved that at
the time of committing the act the
defendant labored under such mental
defects as not to know the nature
of the act he was doing, or if he
did know it that he did not know
that he was doing wrong. State v.
Palmer, 161 Mo 152, 61 SW 651.
Contra, Revoir v. State, 82 Wis
295, 52 NW 84; Butler v. State,
102 Wis 364, 78 NW 590.
See also § 62, infra.
7 » Morse v. State, 68 TexCr 351,
152 SW 927.
195 SUBJECT-MATTER § 59
Where an adjudication of insanity was outstanding against the
accused at the time he committed the offense charged, and that
is made a defense in his trial, it is the duty of the court to charge
the jury that the prosecution must prove beyond a reasonable
doubt that the defendant was sane at the time the crime was
committed.72 A judgment declaring a person insane is' entitled
to full faith and credit in another state by virtue of the pro-
visions of the federal constitution. And if the person so de-
clared insane be afterward prosecuted in another state for crime,
and prove the foreign judgment declaring him insane, he is
entitled to have the jury instructed as to the full faith and credit
to be given such judgment.73
§ 59. Reasonable doubt.
The defendant in a criminal case Is entitled to an instruction
that the jury must acquit unless they are convinced of his guilt
beyond a reasonable doubt.
Whether or not the term "reasonable doubt" must be defined,
it is clear that the trial judge must charge that the jury must
acquit unless they are convinced of defendant's guilt beyond a
reasonable doubt. The doctrine applies to every material issue
in the case;74 but it does not require that every fact or circum-
stance be proved beyond a reasonable doubt, for the rule is satis-
fied if the jury are told that they may not convict unless they
believe beyond a reasonable doubt that the defendant is guilty.7®
The court should not instruct that proof beyond a reasonable
doubt is not required as to each link in the chain of evidence.76
Reasonable doubt will acquit where it relates to the presence of
the accused at the time and place where the crime is charged
to have been committed.77
In a prosecution for theft of cattle, it is error to charge that
if the jury believed the defendant stole the cattle, he was guilty
of grand larceny.78 Similarly, it is error for the court to omit
the charge as to reasonable doubt in telling the jury that a
defendant could be convicted as an aider and abettor if the jury
72 Glover v. State, 125 TexCr 605, viction was circumstantial, the jury
69 SW2d 136. should be told that every circum-
73 State v. Neu, 180 La 545, 157 stance must be proved beyond a
S 105. reasonable doubt.
74 Watson v. State, 28 OklCr 244, 76 People v. Kogers, 324 111 224,
230 P 521; Hathcock v. State, 97 154 NE 909.
TexCr 550, 263 SW 587. 77 State v. Hassan, 149 la 518,
75 State v. Wilson, 41 Idaho 616, 128 NW 960; State v. Adair, 160
243 P 359. Mo 391, 61 SW 187.
In State v. Trudell, 49 SD 532, 7S Tanner v. State, 26 AlaApp 277,
207 NW 465, it was held that where 158 S 196.
the evidence depended upon for con-
;59
INSTRUCTIONS — RULES GOVERNING
196
believed he was present at the time the crime was committed
and wilfully aided and assisted the perpetrator of the crime.79
It is insufficient to say to the jury that unless "you believe
defendant has been proven guilty, you will find him not guilty,"
for such leaves out the requirement as to reasonable doubt.80
It is proper to instruct that the question is not who committed
the offense if defendant did not, but is whether the state had
shown defendant's guilt beyond a reasonable doubt.81
It is essential in all cases of acquittal on the ground of reason-
able doubt that the doubt be entertained by all the jurors.82
One distinct enunciation of the principle is sufficient and it is
unnecessary to repeat it in other instructions.83
Defendant should not be required to establish the elements
of his defense beyond a reasonable doubt.84
Jurors' bases for reasonable doubt. The doubt must spring
from the whole case and arise from the evidence or the want
of evidence or from a conflict in the evidence.85 It must be a
substantial or fair doubt and not one which is based merely
79 Benge v. Commonwealth, 258
Ky 600, 80 SW2d 569.
80 Belong v. Commonwealth, 214
Ky 216, 282 SW 1089.
81 Mitchell v. State, 147 Ga 468,
94 SE 570.
82 Alabama. Littleton v. State,
128 Ala 31, 29 S 390; Davis v. State,
131 Ala 10, 31 S 569; Yeats v.
State, 142 Ala 58, 38 S 760; What-
ley v. State, 144 Ala 68, 39 S 1014;
Outler v. State, 147 Ala 39, 41 S
460; Russell v. State, 201 Ala 572,
78 S 916.
Arkansas. Biddle v. State, 131
Ark 537, 199 SW 913.
Florida. Cook v. State, 46 Fla
20, 35 S 665; Hall v. State, 78 Fla
420, 83 S 513, 8 ALR 1034.
Illinois. People v. Lardner, 296
111 190, 129 NE 697.
Indiana. Rains v. State, 137 Ind
83, 36 NE 532.
Oklahoma. Hodge v. Territory, 12
Okl 108, 69 P 1077.
South Dakota, State v. Sonnen-
schein, 37 SD 585, 159 NW 101.
Washington. State v. Gushing, 17
Wash 544, 50 P 512.
West Virginia. State v. McCaus-
land, 82 WVa 525, 90 SE 938.
*3 Florida. Davis v. State, 46
Fla 137, 35 S 76.
Georgia. Watts v. State, 9 GaApp
500, 71 SE 766.
Illinois. People v. Snyder, 279
111 435, 117 NE 119; People v.
Lowhone, 296 111 391, 129 NE 781.
See also People v. Wallace, 279 111
139, 116 NE 700.
84 Georgia. Dedge v. State, 153
Ga 176, 111 SE 547; Stanford v.
State, 153 Ga 219, 112 SE 130.
Idaho. State v. Rogers, 30 Idaho
259, 163 P 912.
New Jersey. State v. Sandt, 95
NJ 49, 111 A 651.
North Carolina. State v. Simmer-
son, 191 NC 614, 132 SE 596.
Texas. Long v. State, 104 TexCr
298, 283 SW 810.
It was error to charge that the
jury must believe beyond reason-
able doubt that liquor was for medi-
cinal purposes. Lewis v. State, 103
TexCr 64, 279 SW 828.
85 Alabama. Tribble v. State, 145
Ala 23, 40 S 938; Pippin v. State,
197 Ala 613, 73 S 340; Pinson v.
State, 201 Ala 522, 78 S 876; Suttles
v. State, 15 AlaApp 582, 74 S 400;
Adkins v. State, 16 AlaApp 181, 76
S 465; McNeal v. State, 18 AlaApp
311, 92 S 95.
It is error to refuse a charge
to acquit if the jury upon consid-
197
SUBJECT-MATTER
§59
ering all the testimony have a rea-
sonable doubt about the guilt of the
defendant arising out of any part of
the evidence. Walker v. State, 117
Ala 42, 23 S 149.
It was proper to refuse to charge
that the jury were to consider all
the evidence in the light of their
experience as fair-minded men and
on such fair and reasonable con-
sideration to doubt the guilt of the
defendant meant to acquit him.
Thayer v. State, 188 Ala 39, 35 S
406.
A charge should state of what
jury should be in doubt. Smith v.
State, 16 AlaApp 153, 75 S 829.
It is not error to instruct that if
the jury believed from the evidence
beyond a reasonable doubt that de-
fendant was guilty they must con-
vict, although they believed it pos-
sible that he was not guilty. Cain
v. State, 17 AlaApp 530, 86 S 166.
It was error to charge that "if
there is one single fact proven to
the satisfaction of the jury which
is inconsistent with the defendant's
guilt, this is sufficient to raise a
reasonable doubt, and the jury should
acquit." Cowan v. State, 15 AlaApp
87, 72 S 578.
Arkansas. Bruce v. State, 71 Ark
475, 75 SW 1080; Zinn v. State, 135
Ark 342, 205 SW 704.
California. People v. Madison, 3
Cal2d 668, 46 P2d 159.
Florida. Hall v. State, 78 Fla
420, 83 S 513, 8 ALR 1034.
Georgia. Lucas v. State, 146 Ga
315, 91 SE 72; Benton v. State, 9>
GaApp 291, 71 SE 8; Alexander v.
State, 82 GaApp 488, 123 SE 923.
There was no error in an instruc-
tion that a reasonable doubt is such
a doubt as would arise in the mind
of an honest juror seeking to do
his duty, seeking the truth of the
transaction, seeking to do justice
between the state and the accused,
and not such a doubt as would arise
in the mind of a dishonest juror
or one who would go into the jury
box for the purpose of discharging
defendant. Evans v. State, 27 Ga
App 316, 108 SE 129.
Idaho. State v. Nolan, 31 Idaho
71, 160 P 295.
Illinois. Henry v. People, 198 111
162, 65 NE 120; People v. Gray,
251 111 431, 96 NE 268; People v.
Zurek, 277 111 621, 115 NE 644;
People v. Sawhill, 299 111 393, 132
NE 477; People v. Shaw, 300 111
451, 133 NE 208; People v. Hanson,
359 111 266, 194 NE 520.
Indiana. Morgan v. State, 190
Ind 411, 130 NE 528 (defendant
entitled to instruction on subject).
Iowa. State v. James, 198 la
976, 200 NW 577; State v. Grattin,
218 la 889, 256 NW 273.
Kentucky. Berry v. Common-
wealth, 149 Ky 398, 149 SW 824;
West v. Commonwealth, 194 Ky 536,
240 SW 52.
Michigan. People v. Powers, 203
Mich 40, 168 NW 938.
Mississippi. Howell v. State, 98
Miss 439, 53 S 954.
Missouri. State v. Garth, 164 Mo
553, 65 SW 275; State v. Arnett
(Mo), 210 SW 82.
Nebraska. Ferguson v. State, 52
Neb 432, 72 NW 590, 66 AmSt 512;
Mclntosh v. State, 105 Neb 328, 180
NW 573, 12 ALR 798.
New Jersey. State v, Comtarino,
91 NJL 103, 102 A 872 (satisfied
as reasonable men not erroneous);
State v. Fisher, 94 NJL 12, 110 A
124.
New York. People v. Billick, 193
AppDiv 914, 183 NYS 685.
Pennsylvania. Commonwealth v.
Knox, 262 Pa 428, 105 A 634.
Texas. Perrin v. State, 45 TexCr
560, 78 SW 930; James v. State, 86
TexCr 107, 215 SW 459; Lewis v.
State, 89 TexCr 345, 231 SW 113.
Washington. State v, Pettviel, 99
Wash 434, 169 P 977; State v. Her-
witz, 109 Wash 153, 186 P 290.
§59
INSTRUCTIONS — RULES GOVERNING
198
upon whim, caprice, or Imagination;86 it must not arise from
the argument of counsel,87 or from sympathy or compassion.88
86 Federal. Singer v. United
States, 27& F 415.
Alabama. McGrew v. State, 21
AlaApp 266, 107 S 328 ("possi-
bility" of innocence not the crit-
erion).
It is proper to charge: "It is
not a mere doubt that authorizes an
acquittal. The doubt which author-
izes an acquittal must be a reason-
able doubt/' Lodge v. State, 122
Ala 107, 26 S 200, 82 AmSt 23.
Arkansas. Kelley v. State, 133
Ark 261, 202 SW 49.
California. People v. T. Wah
Hing, 47 CalApp 327, 190 P 662.
A charge on reasonable doubt is
not objectionable which states that
"the doubt must be supported by
reason, and not by mere conjecture
and idle supposition, irrespective of
evidence." People v. Ross, 115 Cal
233, 46 P 1059.
Florida. It is improper to base
right to acquittal on probabilities.
Graham v. State, 72 Fla 510, 73 S
594.
Georgia. Chancey v. State, 145
Ga 12, 88 SE 205; Lampkin v. State,
145 Ga 40, 88- SE 563; Lumpkin v.
State, 152 Ga 229, 109 SE 664; Mer-
ritt v. State, 152 Ga 405, 110 SE
160; Stanford v. State, 153 Ga 219,
112 SE 130; Wall v. State, 153 Ga
309, 112 SE 142; Newsome v.
State, 25 GaApp 191, 102 SE 876;
Hall v. State, 25 GaApp 762, 105
SE 249.
Idaho. State v. Anthony, 6 Idaho
383, 55 P 884.
Iowa. State v. Powers, 180 la
693, 163 NW 402.
Michigan. People v. Swartz, 118
Mich 292, 76 NW 491; People v.
Barrette, 233 Mich 615, 208 NW 27.
Minnesota, State v. Keehn, 135
Minn 211, 160- NW' 666.
Missouri. State v. Temple, 194
Mo 237, 92 SW 869, 5 AnnCas 954;
State v. Maupin, 196 Mo 164, 93 SW
379; State v. Lewis, 273 Mo 518,
201 SW 80; State v. Judge, 315 Mo
156, 285 SW 718.
Montana. State v. Lewis, 52
Mont 495, 159 P 415.
Nebraska. Hodge v. State, 101
Neb 419, 163 NW 321.
New York. An instruction was
held not erroneous which said that
"A . . . reasonable doubt is not
a mere whim, but it is such a doubt
as reasonable men may entertain,
after a careful and honest review
and consideration of the evidence in
the case. It is a doubt founded in
reason and coming from reason or
a doubt coming from reason, . . .
and which survives reason/' People
v. Barker, 153 NY 111, 47 NE 31.
Ohio. Beck v. State, 129 OhSt
582, 196 NE 423, 2 OhO 566; Micel-
la v. State, 38 OhApp 1, 175 NE
705, 34 OLR 296.
Pennsylvania. Commonwealth v.
De Palma, 268 Pa 25, 110 A 756;
Commonwealth v. Fogel, 75 Pa
SuperCt 446 (not a mere fleeting
hesitancy or momentary state of ir-
resolution).
South Carolina. State v. Glover,
91 SC 562, 75 SE 218.
Utah. State v. Neel, 23 Utah 541,
65 P 494.
Wisconsin. It is proper to in-
struct that "beyond a reasonable
doubt" does not mean beyond a mere
doubt or possibility of innocence;
that if guilt be established by evi-
dence beyond any doubt founded in
reason and common sense as applied
thereto a conviction should follow
though the jury may believe there
is doubt on the question not rising,
however, to the certainty of a rea-
sonable doubt or though they yet
believed in the possibility of inno-
cence. Emery v. State, 101 Wis
627, 78 NW 145.
87 Alabama. Walker v. State, 139
Ala 56, 35 S 1011.
California. People v. Ammerman,
118 Cal 23, 50 P 15.
West Virginia. State v. Long,
88 WVa 669, 108 SE 279.
88 Commonwealth v. Green, 292 Pa
579, 141 A 624.
199
SUBJECT-MATTER
,59
Definitions of "reasonable doubt." The defining instruction
should be free from argumentativeness. An example of an argu-
mentative instruction is one which tells the jury that "a reason-
able doubt is such a doubt as leaves your mind in view of all
the evidence in a state of reasonable uncertainty as to the guilt
of the defendant."89
The doubt intended is a reasonable doubt and not necessarily
a strong or weak doubt,90 although it is appropriate for the
court to tell the jury that it must be a substantial doubt arising
from the evidence in the case.91 It is not the mere possibility
of doubt.92 If one has a doubt which would cause an ordinarily
prudent man to pause and hesitate to act in the most important
affairs of life, he has a reasonable doubt.93
The jury should not be instructed that they should doubt
as a jury only when they doubt as men.94 It is not essential
that the doubt should be one for which a reason can be given by
the jurors.98 It ought, however, to be such a doubt as a man of
reasonable intelligence could give some good reason for enter-
taining'if he were called on to do so.96 It should be a substantial
89Pinson v. State, 201 Ala 522,
78 S 876; Butler v. State, 16 AlaApp
234, 77 S 72; Cain v. State, 16 Ala
App 303, 77 S 453; Bowling v.
State, 18 AlaApp 231, 90 S 33.
90 People v. Lardner, 296 111 190,
129 NE 697.
1 i State v. Smith, 332 Mo 44, 56
SW2d 39.
92 State v. Garzio, 113 NJL 349,
175 A 98.
93 Miller v. State, 139 Wis 57, 119
NW 850.
94 California. But see People v.
Clark, 183 Cal 677, 192 P 521.
Colorado. Highley v. People, 65
Colo 497, 177 P 975.
Illinois. People v. Kingcannon,
276 111 251, 114 NE 508.
West Virginia. State v. Worley,
82 WVa 350, 96 SE 56; State v.
McCausland, 82 WVa 525, 96 SE
938; State v. Young, 82 WVa 714,
97 SE 134; State v. Price, 83 WVa
71, 97 SE 582, 5 ALR 1247; State
v. Ringer, 84 WVa 546, 100 SE 413.
95 Alabama. Roberts v. State,
122 Ala 47, 25 S 238; Smith v.
State, 142 Ala 14, 39 S 329; Dees
v. State, 18 AlaApp 133, 89 S 95.
See Whitfield v. State, 22 AlaApp
556, 117 S 761.
Arkansas. Darden v. State, 73
Ark 315, 84 SW 507.
Indiana. Scheerer v. State, 197
Ind 155, 149 NE 892.
It is not proper to tell the jury
that a reasonable doubt required the
evidence to convince them with that
degree of certainty which they would
be willing to act upon in the more
weighty matters relating to their
own affairs. Beneks v. State, 208
Ind 317, 196 NE 73.
Iowa. State v. Cohen, 108 la 208,
78 NW 857, 75 AmSt 213.
Mississippi. Klyce v. State, 78
Miss 450, 28 S 827.
Nebraska. Blue v. State, 86 Neb
189, 125 NW 136.
New Jersey. State v. Parks, 96
NJL 360, 115 A 305.
Utah. But see State v. Overson,
55 Utah 230, 185 P 364.
Washington. State v. Dunn, 159
Wash 608, 294 P 217 (where such a
definition was approved).
96 Illinois. People v. Grove, 284
111 429, 120 NE 277.
§59
INSTRUCTIONS — RULES GOVERNING
200
doubt, and not a mere possibility that the defendant is inno-
cent.97 It is not required that the state should prove guilt to
a mathematical certainty,98 or a moral certainty," or by evi-
dence equivalent to "absolute and positive proof,"1 or that
produces an "undoubting" and satisfactory conviction of guilt.2
It has been held correct to explain to the jury that "reasonable
doubt" is a condition of not being able to feel conviction of the
truth of the charge against the accused to a moral certainty.3
It has been held that for the court to charge that the jury
must believe the evidence of defendant's guilt "to a moral cer-
tainty" is equivalent to the expression "beyond a reasonable
doubt."4 The court is not required to state to the jury that
New York. People v. Lagroppo,
90 AppDiv 219, 18 NYCr 75, 86 NYS
116.
South Carolina. State v. Bram-
lett, 114 SC 389, 103 SE 755.
A reasonable doubt is one for
which a reason can be given; a sub-
stantial doubt based on the evi-
dence, or want of evidence in the
case, and not a bare possibility of
defendant's innocence; such a doubt
as would cause a reasonably pru-
dent man to pause before acting in
the highest affairs of life. State
v. Raice, 24 SD 111, 123 NW 708.
97 State v. Cook (Mo), 44 SW2d
90.
98 Hicks v. State, 123 Ala 15, 26
S 337; Keith v. State, 15 AlaApp
129, 72 S 602.
That it was erroneous to charge
that the jury must believe defend-
ant guilty beyond all reasonable
supposition was properly refused;
supposition having no legitimate
sphere in judicial administration.
Dawson v. State, 196 Ala 593, 71 S
722.
Davis v. State, 114 Ga 104, 39 SE
906; Bonner v. State, 152 Ga 214,
109 SE 291; Connell v. State, 153
Ga 151, 111 SE 545; Griggs v.
State, 17 GaApp 301, 86 SE 726;
Ponder v. State, 18 GaApp 727, 90
SE 376.
A reasonable doubt is such a
doubt as an upright man might en-
tertain in an honest investigation
after the truth. Lochamy v. State,
152 Ga 235, 109 SE 497.
99 Alabama. Talbert v. State,
121 Ala 33, 25 S 690; Keith v.
State, 15 AlaApp 129, 72 S 602;
Minor v. State, 15 AlaApp 556, 74
S 98; McMillan v. State, 16 AlaApp
148, 75 S 824.
It is error to tell the jury "You
must find defendant not guilty un-
less the evidence is such as to ex-
clude to a marked certainty every
supposition but that of his guilt."
Cain v. State, 16 AlaApp 303, 77 S
453.
Arkansas. Wolf v. State, 130 Ark
591, 197 SW 582.
Georgia. Loyd v. State, 26 GaApp
259, 106 SE 601. See also Connell
v. State, 153 Ga 151, 111 SE 545.
Minnesota. But see State v. Coup-
lin, 146 Minn 189, 178 NW 486.
Missouri. State v. Johnson (Mo),
234 SW 794.
1 Federal. Crane v. United States,
170 CCA 456, 259 F 480.
New York. People v. Benham, 160
NY 402, 14 NYCr 188, 55 NE 11.
Ohio. The state is required only
to prove the accused guilty beyond
a reasonable doubt, and not beyond
all reasonable doubt. Colletti v.
State, 12 OhApp 104, 31 OCA 81.
2 State v. Paxton, 126 Mo 500,
29 SW 705.
3 State v. Eubenstein, 104 NJL
291, 140 A 287.
4 Gray v. State, 56 OklCr 20-8, 38
P2d 967.
201
SUBJECT-MATTER
§59
the facts and circumstances proved in the case must be "abso-
lutely incompatible" with any other hypothesis than defendant's
guilt.5 An instruction that the commission of the offense must
be shown to the satisfaction of the jury has been held erroneous
as requiring too high a degree of proof.6 So, the jury should
not be told to acquit unless the evidence excluded every reason-
able supposition except that of guilt.7 A fixed abiding conviction
of guilt will suffice.8 The court cannot charge the jury to convict
the defendant on evidence indicative of guilt.9 It has been held
proper to say to the jury that the evidence must satisfy the
mind, conscience, and judgment to a moral certainty and beyond
a reasonable doubt.10
In some jurisdictions, the trial judge is required to read
the definition of "reasonable doubt" as given in a statute, ! ' but
the precise statutory language is not necessary, where the court
charges the jury substantially in accordance with the statutory
definition.12 The term, in many jurisdictions, is regarded as
self-explanatory,13 and the practice of attempting to define the
term is not approved;14 these attempts sometimes confuse the
5 People v. Hanson, 359 111 266,
194 NE 520.
6 McCormack v. State, 133 Ala
202, 32 S 268; Thayer v. State, 138
Ala 39, 35 S 406; Best v. State,
155 Ind 46, 57 NE 534.
^ Prince v. State, 215 Ala 276,
110 S 407.
8 Alabama. Frazier v. State, 17
AlaApp 486, 86 S 173.
Oklahoma. Thompson v. State, 16
OklCr 716, 184 P 467.
Virginia. Smith v. Common-
wealth, 155 Va 1111, 156 SE 577.
9 Post v. State, 197 Ind 193, 150
NE 99.
10 People v. Arnold, 199 Cal 471,
250 P 168.
1 i Pickering v. Cirell, 163 OhSt
1, 56 OhO 1, 125 NE2d 185.
1 2 Kentucky. Renaker v. Com-
monwealth, 172 Ky 714, 189 SW
928; Frierson v. Commonwealth, 175
Ky 684, 194 SW 914; Common-
wealth v. Stites, 190 Ky 402, 227 SW
574; Keith v. Commonwealth, 195
Ky 635, 243 SW 293; Nickells v.
Commonwealth, 241 Ky 159, 43
SW2d 697.
Ohio. Beck v. State, 129 OhSt
582, 2 OhO 566, 196 NE 423.
Oklahoma. Reeves v. Territory, 2
OklCr 351, 101 P 1039.
Pennsylvania. Commonwealth v.
Berney, 262 Pa 176, 105 A 54.
South Carolina. It has been held
correct to charge that a reasonable
doubt is a strong doubt based on
the testimony. State v. Summer, 55
SC 32, 32 SE 771, 74 AmSt 707.
13 Georgia. Snell v. State, 179
Ga 52, 175 SE 14; Buchanan v.
State, 11 GaApp 756, 76 SE 73;
Ponder v. State, 18 GaApp 703, 90
SE 365.
Illinois. People v. Malmenato, 14
I112d 52, 150 NE2d 806.
North Carolina. State v. Wilcox,
132 NC 1120, 44 SE 625.
Oklahoma. Choate v. State, 19
OklCr 169, 197 P 1060.
Pennsylvania. Commonwealth v.
Berney, 262 Pa 176, 105 A 54 (de-
sirable to explain meaning of term).
In Pennsylvania it is necessary
for the court, in capital cases, to
define the meaning of the words
"reasonable doubt." Commonwealth
v. Varano, 258 Pa 442, 102 A 131.
South Carolina. State v. Aughtry,
49 SC 285, 26 SE 619, 27 SE 199.
§60
INSTRUCTIONS — RULES GOVERNING
202
jury. ! 5 It has even been held erroneous for the court to attempt
to elaborate upon the meaning of the term. ' 6
§ 60. Good character as generating reasonable doubt of guilt.
IE a criminal prosecution, the accused is entitled to a charge
as to the effect of his good character on reasonable doubt of guilt.
Rarely, if ever, is the character of the accused an operative
element of his guilt. Rather, character evidence is introduced
for the purpose of inferentially proving that he is innocent be-
cause of the generally accepted proposition that one of good
character is less likely to commit a crime than one of bad char-
acter. To put it in another way, the purpose of character evi-
dence is to help create a reasonable doubt of the defendant's
guilt.
Hence, it has become appropriate for courts to charge that
good character, if proved, is a fact to be considered by the jury
together with all the other evidence in reaching the ultimate
conclusion of guilt or innocence, and if the evidence raises a
reasonable doubt as to guilt, the verdict should be not guilty. ' 7
But if upon the whole evidence, including that of good character,
Texas. Holmes v. State, 68 TexCr
17, 150 SW 926.
Vermont. State v. Costa, 78 Vt
198, 62 A 38.
Virginia. McCoy v. Common-
wealth, 133 Va 731, 112 SE 704.
14 Federal. Nanfito v. United
States, 20 F2d 376 (where, how-
ever, it was held that a definition
must be given).
California. People v. Bickerstaff,
46 CalApp 764, 190 P 656.
Georgia. Solomon v. State, 44
GaApp 755, 162 SE 863.
Illinois. People v. Leggio, 329 111
514, 161 NE 60; People v. Buzan,
351 111 610, 184 NE 890; People v.
Kennedy, 356 III 151, 190 NE 296;
People v. Gary, 245 IllApp 100. See
People v. Guertin, 342 111 99, 173 NE
824.
The giving of stock instructions
on subject is not commended. Peo-
ple v. Casino, 295 111 204, 129 NE
145, 34 ALR 1102.
Kentucky. Crump v. Common-
wealth, 215 Ky 827, 287 SW 23;
Swopshire v. Commonwealth, 246
Ky 593, 55 SW2d 356.
Oklahoma. Thompson v. State, 16
OklCr 716, 184 P 467; Mayfield v.
State, 17 OklCr 503, 190 P 276;
Tolbert v. State, 34 OklCr 110, 245
P 659,
1 s State v. Andrews, — RI — , 134
A2d 425.
1 6 People v. Gary, 245 IllApp 100.
1 7 Federal. White v. United
States, 164 US 100, 41 LEd 365, 17
SupCt 38.
Evidence of the good character
of the defendant may be considered
in connection with other evidence to
create a reasonable doubt of his
guilt; and a charge that it can be
considered only when the other evi-
dence raises such a doubt is erron-
eous. Edgington v. United States,
164 US 361, 41 LEd 467, 17 SupCt
72.
Rowe v. United States, 38 CCA
496, 97 F 779; Snitkin v. United
States, 265 F 489; Linde v. United
States, 13 F2d 59; Scheib v. United
States, 14 F2d 75; Mansfield v.
United States, 76 F2d 224.
203
SUBJECT-MATTER
§60
Alabama. Cobb v. State, 115 Ala
18, 22 S 506; Carwile v. State, 148
Ala 576, 39 S 220.
Arkansas. Rhea v. State, 104 Ark
162, 147 SW 463; Teagiie v. State,
171 Ark 1189, 287 SW 578.
California. People v. Bowman, 81
Gal 566, 22 P 917. See People v.
Lathrop, 49 CalApp 63, 192 P 722.
Florida. Olds v. State, 44 Fla
452, 33 S 296.
Georgia. Nelms v. State, 123 Ga
575, 51 SE 588; Jones v. State, 130
Ga 274, 60 SE 840; Hill v. State,
18 GaApp 259, 89 SE 351; Thomas
v. State, 25 GaApp 558, 103 SE
859; Rutland v. State, 28 GaApp
145, 110 SE 634; Peek v. State, 34
GaApp 797, 131 SE 915. But see
Taylor v. State, 17 GaApp 787, 88
SE 696; Sheffield v. State, 26 GaApp
72, 10-5 SE 376.
Idaho. See State v. McGreevey,
17 Idaho 453, 105 P 1047.
Illinois. Spalding v. People, 172
111 40, 49 NE 993; People v. Bartz,
342 111 56, 173 NE 779.
Indiana. Eacock v. State, 169 Ind
488, 82 NE 1039. See Wilkoff v.
State, 206 Ind 142, 185 NE 642.
Iowa. See State v. Johnson, 211
la 874, 234 NW 263.
Louisiana. See State v. Nicholls,
50 LaAnn 699, 23 S 980.
Massachusetts. Commonwealth v.
Leonard, 140 Mass 473, 4 NE 96,
54 AmRep 485.
Michigan. People v. Parker, 166
Mich 587, 131 NW 1120. See Peo-
ple v. Best, 218 Mich 141, 187 NW
393.
Minnesota. State v. Dolliver, 150
Minn 155, 184 NW 848,
Mississippi. Hammond v. State,
74 Miss 214, 21 S 149; Dewberry v.
State, 168 Miss 366, 151 S 479.
Missouri. State v. Lasson, 292
Mo 155, 238 SW 101.
Nebraska. Lfflie v. State, 72 Neb
228, 100 NW 316. See McDougal v.
State, 105 Neb 553, 181 NW 519.
New Jersey. Baker v. State, 53
NJL 45, 20 A 858; State v. Lang,
87 NJL 508, 94 A 631, 10 ALR 4.
See State v. Duelks, 97 NJL 43,
116 A 865.
New York. Remsen v. People, 43
NY 6. See People v. Trimarchi, 231
NY 263, 131 NE 910; People v.
Colantone, 243 NY 134, 152 NE
700.
In People v. Viscio, 241 AppDiv
499, 272 NYS 213, the court said:
"Defendant introduced evidence of
his good character. The trial judge
made no reference to this subject in
his charge. He utterly ignored this
evidence so vital to defendant. He
should have explained to the jury
the effect of good character upon
the question of reasonable doubt.
When evidence of good character
raises a reasonable doubt as to the
guilt of a person accused of crime,
he is entitled to an acquittal al-
though without such evidence no
doubt as to his guilt would exist.
. . . Evidence of good character is
a matter of substance, not of form,
in criminal cases, and must be con-
sidered by the jury as bearing upon
the issue of guilt, even when the
evidence against the defendant may
be very convincing."
See to the contrary People v.
D'Anna, 243 AppDiv 259, 277 NYS
279. See also People v. Jackson, 182
NY 66, 74 NE 565.
An instruction that evidence of
good character must be considered
and if in the judgment of the jury
it does raise a doubt against posi-
tive evidence, the jury have a right
to entertain such doubt and the de-
fendant must have the benefit of
it, has been held to correctly state
the rule in regard to such evidence.
People v. Hughson, 154 NY 153, 47
NE 1092.
Evidence of good character will
raise a reasonable doubt when be-
lieved by the jury. People v. Tri-
marchi, 231 NY 263, 131 NE 910.
Ohio. Stewart v. State, 22 OhSt
477; State v. Hare, 87 OhSt 204,
100 NE 825.
Oklahoma. Cannon v. Territory,
1 OklCr 600, 99 P 622. See Jollifee
v. State, 21 OklCr 278, 207 P 454.
§60
INSTRUCTIONS — RULES GOVERNING
204
the jury are satisfied beyond a reasonable doubt of the defend-
ant's guilt, it is their duty to convict.18 The charge must be
made without any disparagement by the court. 1 9
Not every defendant in a criminal case is entitled to an in-
struction on good character. The instruction on good character
is required only where substantial evidence of good character is
adduced. No such instruction is required merely by the answer
of defendant to the question on direct examination as to arrest
Pennsylvania. Commonwealth v.
Ronello, 251 Pa 329, 96 A 826.
Utah. State v. Brown, 39 Utah
140, 115 P 994, AnnCas 1913B, 1;
State v. Harris, 58 Utah 331, 199
P 145.
Washington. State v. Gushing, 17
Wash 544, 50' P 512; State v. Hum-
phreys, 118 Wash 472, 203 P 965.
Wisconsin. Jackson v. State, 81
Wis 127, 51 NW 89.
An instruction was erroneous
which told the jury that the office
of evidence respecting1 good reputa-
tion was not to raise a doubt of
guilt but to aid in solving it. Schutz
v. State, 125 Wis 452, 104 NW SO.
For approved instructions see Nie-
zorawski v. State, 131 Wis 166, 111
NW 250.
18 Federal. Hughes v. United
States, 145 CCA 238, 231 F 50.
Alabama. Kilgore v. State, 74
Ala 1; Hussey v. State, 87 Ala 121,
6 S 420; Pate v. State, 94 Ala 14,
10 S 665.
Arkansas. Edmonds v. State, 34
Ark 720.
California. People v. Smith, 59
Cal 601; People v. Mitchell, 129 Cal
584, 62 P 187. See People v. Hahn,
58 CalApp 704, 209 P 268.
Georgia. Hathcock v. State, 88
Ga 91, 13 SE 959; Brazil v. State,
117 Ga 32, 43 SE 460; Johnson v.
State, 21 GaApp 497, 94 SE 630.
Illinois. Hirschman v. People, 101
111 568; People v. Anderson, 239
111 168, 87 NE 917.
Indiana. Rollins v. State, 62 Ind
46; Walker v. State, 136 Ind 663,
36 NE 356; Rains v. State, 152 Ind
69, 52 NE 450; Dorsey v. State, 179
Ind 531, 100 NE 369.
Michigan. People v. Mead, 50
Mich 228, 15 NW 95.
Missouri. State v. McMurphy, 52
Mo 251; State v. Wertz, 191 Mo
569, 90 SW 838; State v. Wilson,
230 Mo 647, 132 SW 238.
New York. People v. Brooks, 131
NY 321, 30 NE 189; People v. Con-
row, 200 NY 356, 93 NE 943.
Ohio. Stewart v. State, 22 OhSt
477.
Oklahoma. Coleman v. State, 6
OklCr 252, 118 P 594.
Pennsylvania. Commonwealth v.
Eckerd, 174 Pa 137, 34 A 305.
Washington. State v. Stentz, 33
Wash 444, 74 P 588.
Wisconsin. Cupps v. State, 120
Wis 504, 97 NW 210, 98 NW 546,
102 AmSt 996; Dunn v. State, 125
Wis 181, 102 NW 935; Hedger v.
State, 144 Wis 279, 128 NW 80.
19 Federal. Hughes v. United
States, 145 CCA 238, 231 F 50;
Perara v. United States, 235 F 515,
149 CCA 61, 10 ALR 1.
Connecticut. Proof of good char-
acter may be considered in a doubt-
ful case and may raise a doubt
based on the improbability of guilt
of one of generally good character.
State v. McGuire, 84 Conn 470, 80
A 761, 38 LRA (N. S.) 1045.
Georgia. Nelms v. State, 123 Ga
575, 51 SE 588; Brundage v. State,
7 GaApp 726, 67 SE 1051.
Kansas. State v. Hall, 111 Kan
458, 207 P 773.
Louisiana. Evidence in support
of good reputation to the effect that
witness had never heard it dis-
cussed, questioned, or talked about
is admissible. State v. Emory, 151
La 152, 91 S 659.
205
SUBJECT-MATTER
§60
or conviction of an offense.20 It is not error to fail to call at-
tention to defendant's reputation for truth and veracity where
his reputation in this respect has not been attacked and evidence
introduced by him on this point, if objected to, might have been
rejected.21 If the only character evidence offered by the de-
fendant was as to his reputation for truth and veracity, the court
is not required to charge on good character.22 On the other hand,
the defendant is entitled to the instruction, though his witnesses
on that subject were contradicted.23
It is not required, before a good character instruction must
be given, that the rest of the evidence in the case leaves the
guilt of the defendant in doubt.24 Nor should the jury be told
not to consider character evidence if from the rest of the evi-
Michigan. People v. Best, 218
Mich 141, 187 NW 393.
It was error to refuse an instruc-
tion that accused was presumed to
be of good character. People v.
Woods, 206 Mich 11, 172 NW 384.
Proof of good character is of no
avail where there is positive evi-
dence of guilt. People v. Covelesky,
217 Mich 90, 185 NW 770.
Minnesota. State v. Priedson, 170
Minn 72, 211 NW 958.
Mississippi. Powers v. State, 74
Miss 777, 21 S 657.
Missouri. State v. Martin, 230
Mo 680, 132 SW 595; State v. Baird,
288 Mo 62, 231 SW 625, 15 ALR
1035.
Nebraska. Latimer v. State, 55
Neb 609, 76 NW 207, 70 AmSt 403.
New Jersey. State v. Duelks, 97
NJL 43, 116 A 865.
New York. People v. Billick, 193
AppDiv 914, 183 NTS 685.
Ohio. Harrington v. State, 19
OhSt 264; Stewart v. State, 22 OhSt
477; Burns v. State, 75 OhSt 407,
79 NE 929; State v. Hare, 87 OhSt
204, 100 NE 825.
Oklahoma. Gray v. State, 56 Okl
Cr 208, 38 P2d 967.
Pennsylvania. Commonwealth v.
Tenbroeck, 265 Pa 251, 108 A 635.
It may be error in the particular
case for the court to tell the jury
that the defendant's character is
not in issue. Commonwealth v.
Wood, 118 PaSuperCt 269, 179 A
756 (prosecution for conspiracy to
cheat and defraud).
South Carolina. State v. Hill, 129
SC 166, 123 SE 817.
Utah. State v. Cerar, 60 Utah
208, 207 P 597.
Wisconsin. Niezorawski v. State,
131 Wis 166, 111 NW 250; McGillis
v. State, 177 Wis 522, 188 NW 597
(where jury satisfied of guilt from
all evidence including evidence of
good character).
20 State v. Millard (Mo), 242 SW
923.
2 1 Alabama. In a prosecution for
murder it was proper to refuse an
instruction that if the jury believed
the character of the defendant for
peace and quietude good they should
consider it in favor of his inno-
cence even though they believed his
character for veracity bad. Terry
v. State, 120 Ala 286, 25 S 176.
Kansas. See also State v. Gaunt,
98 Kan 186, 157 P 447.
Michigan. People v. Smith, 122
Mich 284, 81 NW 107.
22 State v. Steely, 327 Mo 16, 33
SW2d 938.
23 People v. Duzan, 272 111 478,
112 NE 315.
24 United States. Edgington v.
United States, 164 US 361, 41 LEd
467, 17 SupCt 72.
Federal. Bowe v. United States,
38 CCA 496, 97 P 779; Hughes v.
United States, 145 CCA 238, 231 F
50.
60
INSTRUCTIONS — RULES GOVERNING
206
dence they believe defendant guilty.25 On the other hand, the
jury should not be charged to acquit defendant if there is a
reasonable doubt of his guilt "independent of evidence of good
character."26
Where the rest of the evidence does not raise a reasonable
doubt of guilt, the jury may be charged that the evidence of
good character itself may offset the other evidence, but that
the jury must still consider all the evidence ; they should not be
told that good character evidence, if believed, by itself, without
consideration of the rest of the evidence, is sufficient to raise a
reasonable doubt.27
California. People v. Ashe, 44
Cal 288; People v. Shepardson, 49
Gal 629.
Georgia. Shropshire v. State, 81
Ga 589, 8 SE 450; McCullough v.
State, 11 GaApp 612, 76 SE 393.
Illinois. The jury must not be
told that evidence of good character
is conclusive in favor of the accused
in all doubtful cases. People v.
Buckman, 204 IllApp 53 affd. in
279 111 348, US NE 835.
Iowa. State v. Northrup, 48 la
583, 30 AmRep 408.
Louisiana. State v. Simon, 131
La 520, 59 S 975.
Massachusetts. Commonwealth v.
Leonard, 140 Mass 473, 4 NE 96,
54 AmKep 485.
Michigan. People v. Jassino, 100
Mich 536, 59 NW 230; People v.
Laird, 102 Mich 135, 60 NW 457;
People v. Humphrey, 194 Mich 10,
160 NW 445.
Minnesota, State v. Sauer, 38
Minn 438, 38 NW 355.
Missouri. State v. Eowell, 100
Mo 628, 14 SW 4.
Montana. Territory v. Burgess,
8 Mont 57, 19 P 558, 1 LRA 808.
Nebraska. Johnson v. State, 34
Neb 257, 51 NW 835.
New York. People v. Weiss, 129
AppDiv 671, 23 NYCr 140, 114 NYS
236; People v. Blatt, 136 AppDiv
717, 24 NYCr 418, 121 NYS 507.
Pennsylvania. Commonwealth v.
House, 223 Pa 487, 72 A 804.
Tennessee. Keith v. State, 127
Tenn 40, 152 SW 1029.
Texas. Lee v. State, 2 TexApp
338.
Wisconsin. Schutz v. State, 125
Wis 452, 104 NW 90.
25 Georgia. Thornton v. State,
107 Ga 683, 33 SE 673.
Kansas. State v. Keefe, 54 Kan
197, 38 P 302; State v. Douglass
(Kan), 24 P 1118.
Michigan. People v. Garbutt, 17
Mich 9, 97 AmDec 162.
Missouri. State v. Alexander, 66
Mo 148.
Ohio. Donaldson v. State, 10
OhCirCt 613, 5 OhCirDec 98.
Pennsylvania. Commonwealth v.
Ronello, 251 Pa 329, 96 A 826.
Wisconsin. Jackson v. State, 81
Wis 127, 51 NW 89.
26 Holland v. State, 131 Ind 568,
31 NE 359. See also Kistler v. State,
54 Ind 400.
27 Federal. Searway v. United
States, 197 CCA 635, 184 P 716;
Linn v. United States, 163 CCA 470,
251 F 476.
Alabama. Bryant v. State, 116
Ala 445, 23 S 40; Watts v. State,
177 Ala 24, 59 S 270. See Pate v.
State, 94 Ala 14, 10 S 665; Clark
v. State, 20 AlaApp 92, 101 S 63.
California. People v. Bell, 49 Cal
485; People v. Silva, 20 CalApp 120,
128 P 348.
Florida. Langford v. State, 33
Fla 233, 14 S 815; Mitchell v. State,
43 Fla 188, 30 S 803.
Georgia. Howell v. State, 124
Ga 698, 52 SE 649.
In Taylor v. State, 13 GaApp 715,
207
SUBJECT-MATTER
§61
§ 61. Burden of proof in civil cases.
Although it is proper for the court to inform the jury upon
whom the burden of proof rests, in the absence of a request, it
is generally not error to give the instruction.
There are many cases supporting the propriety of the court
in informing the jury upon whom the burden of proof rests
to sustain the issues of the case.28 But generally, there is no
error in the omission to give the instruction, in the absence of
request.29 There is no necessity for the instruction on burden
79 SE 924, the court on appeal said
that the trial court should have told
the jury that good character, alone
and of itself, may create a reason-
able doubt.
Illinois. Spalding v. People, 172
111 40, 49 NE 993.
Iowa. State v. House, 108 la 68,
78 NW 859; State v. Dunn (la), 160
NW 302. See State v. Fortune, 196
la 884, 194 NW 65.
Kansas. State v. Pipes, 65 Kan
543, 70 P 363. See State v. Hall, 111
Kan 458, 207 P 773.
Louisiana. State v. Riculfi, 35
LaAnn 770; State v. Spooner, 41 La
Ann 780, 6 S 879; State v. Simon,
131 La 520, 59 S 975.
Michigan. People v. McArron, 121
Mich 1, 79 NW 944.
Nebraska. Sweet v. State, 75 Neb
263, 106 NW 31.
New York. People v. Hughson,
154 NW 153, 47 NE 1092; People
v. Gilbert, 199 NY 10, 92 NE 85,
20 Ann Gas 769; People v. Dippold,
30 AppDiv 62, 13 NYCr 230, 51 NYS
859. See also People v. Fisher, 136
AppDiv 57, 24 NYCr 176, 120 NYS
659.
Ohio. Burns v. State, 75 OhSt
407, 79 NE 929.
Pennsylvania. Commonwealth v.
Cate, 220 Pa 138, 69 A 322, 17 LEA
(N. S.) 795, 123 AmSt 683; Com-
monwealth v. Webb, 252 Pa 187, 97
A 189; Becker v. Commonwealth
(Pa), 9 A 510.
Washington. State v. Gushing1,
17 Wash 544, 50 P 512.
Wisconsin. Niezorawski v. State,
131 Wis 166, 111 NW 250.
2S Alabama. Robinson v. Smith,
207 Ala 378, 92 S 546.
Arkansas. Arkadelphia Milling
Co. v. Green, 142 Ark 565, 219 SW
319.
Connecticut. Coogan v. Lynch,
88 Conn 114, 89 A 906.
Illinois. Teter v. Spooner, 305
111 198, 137 NE 129; McMahon v.
Scott, 132 IllApp 582.
Iowa. Young1 v. Jacob sen Bros,
(la), 258 NW 104.
Maryland. Meyer v. Frenkil, 116
Md 411, 82 A 208, Ann Cas 1913C,
875. ^
Ohio. Travelers Ins. Co. v. Gath,
118 OhSt 257, 160 NE 710.
Oklahoma. Burt Corp. v. Crutch-
field, 153 Okl 2, 6 P2d 1055.
Texas. Chittim v. Martinez, 94
Tex 141, 58 SW 948; Boswell v.
Pannell, 107 Tex 433, 180 SW 593;
Smith v. Smith (TexCivApp), 200
SW 540; Emerson-Brantingham Im-
plement Co. v. Roquemore (TexCiv
App), 214 SW 679; Goree v. Uvalde
Nat. Bank (TexCivApp), 218 SW
620.
The trial judge should instruct
on burden of proof on special issues.
Levy v. Jarrett (TexCivApp), 198
SW 333.
Wisconsin. Illinois Steel Co. v.
Paczocha, 139 Wis 23, 119 NW 550.
29 California. Wyatt v. Pacific
Elec. R. Co., 156 Cal 170, 103 P
892.
Georgia. Southern Ey. Co. v.
Wright, 6 GaApp 172, 64 SE 703.
Illinois. Drary v. Connell, 177 111
43, 52 NE 368.
Iowa. Reizenstein v. Clark, 104
la 287, 73 NW 588.
61
INSTRUCTIONS — RULES GOVERNING
208
of proof where only one of the parties offers any evidence.30
Failure to charge on burden of proof on the question of damages
is not error where the general tenor of the charge that plaintiff
has the burden of proving all of the material allegations of the
complaint is sufficient to apply such rule to the proof of
damages.31 In a replevin case, where the property sought to
be recovered is claimed by defendant to have been sold to him
by plaintiff, it is error for the court to fail to charge that the
burden was on the defendant to prove the sale, to the extent,
at least, of meeting the prima facie case of the plaintiff, as the
question of who had the burden of proof on such issue was an
essential part of the case.32
The allocation between the parties of this burden of per-
suasion is not uniform, but broadly speaking, the plaintiff has
the burden of persuasion to establish the allegations of his com-
plaint,33 not admitted by defendant.34 The defendant has the
burden to establish the affirmative defenses.35 Accordingly, the
burden of proof is on defendant to prove assumption of risk and
contributory negligence (in most states),36 or set-off,37 or loss
Ohio. Cleveland Rolling-Mill Co.
v. Corrigan, 46 OhSt 283, 20 NE
466, 3 LRA 385, 15 AmSt 596.
South Dakota. Frye v. Ferguson,
6 SD 392, 61 NW 161.
Tennessee. Shelby County v.
Fisher, 137 Tenn 507, 194 SW 576.
Texas. Davis v. Hill (TexCiv
App), 291 SW 681, affd. in 298
SW 526; Gulf States Utilities Co. v.
Moore (TexCivApp), 73 SW2d 941.
Wisconsin. Coppins v. Jefferson,
126 Wis 578, 105 NW 1078.
30Utica Hydraulic Cement Co. v.
Chicago, R. I. & P. R. Co., 193
IllApp 390; Cohen v. Chicago, 197
IllApp 377. See also Hamel v.
Southern R. Co., 113 Miss 344, 74
S 276.
3 f Bysczynski v. McCarthy
Freight System, 129 Conn 118, 26
A2d 853.
32Wortheim v. Brace, 116 Vt 9,
68 A2d 719.
33 Alabama. Southern Exp. Co.
v. Roseman, 206 Ala 681, 91 S 612.
Indiana. Public Utilities Co, v.
Iverson, 187 Ind 672, 121 NE 33.
Ohio. Travelers Ins. Co. v. Gath,
118 OhSt 257, 160 NE 710.
Washington. Wright v. J. F.
Duthie & Co., 118 Wash 564, 204
P 191.
34Laam v. Green, 106 Or 311,
211 P 791.
35 Georgia. Fisher v. Shands, 24
GaApp 743, 102 SE 190.
Illinois. Zink v. National Council,
Knights & Ladies of Security, 109
IllApp 376.
New York. Nordlinger v. Hand-
elmaatschappy Transmarina, Inc.,
192 NYS 789.
36 California. Ellis v. Central
California Trac. Co., 37 CalApp 390,
174 P 407.
Missouri. Wagner v. Gilsonite
Constr. Co. (Mo), 220 SW 890; Pohl-
man v. Wayland (MoApp), 226 SW
92.
New Hampshire. Crugley v.
Grand Trunk Ry. Co., 79 NH 276,
108 A 293.
Ohio. Smith v. Lopa, 123 OhSt
213, 174 NE 735.
Texas. Barnhart v. Kansas City,
M. & 0. Ry. Co., 107 Tex 638, 184
SW 176.
37Nutt v. Vennum, 202 IllApp
507.
209
SUBJECT-MATTER
61
from "act of God/'38 or modification,39 or rescission of contract
sued upon.40 The burden is upon a fiduciary to prove fair dealing
with the subject of his trust.4 !
In most civil cases, the burden is sustained by a preponder-
ance of all the evidence,42 however slight.43 In some claims or
issues, the measure or standard of persuasion is higher. For
example, to establish a right to recover on account of fraud
or on any wrong-doing which also constitutes a crime, the proof
must be by "clear and satisfactory evidence."44 But where the
court imposes upon a litigant a greater burden of proof than
the law requires, prejudice will be presumed.45
The courts do not agree, however, on the meaning of "pre-
ponderance" of evidence. The matter is correctly presented to
38 Payne v. Orton, 150 Ark 307,
234 SW 469.
39 Kossoff v. Alt, 200 AppDiv 552,
193 NYS 431.
40 Curran v. Junk, 200 IllApp 208.
4 ' Sadler's Estate v. Sadler's
Estate, 201 Mich 281, 167 NW 861.
42 Arizona. Red Rover Copper
Co. v. Hillis, 21 Ariz 87, 185 P 641.
Arkansas. Johnson v. Missouri
Pacific Ry. Co., 149 Ark 418, 233
SW 699.
California. Fidelity & Casualty
Co. v. Paraffine Paint Co., 188 Cal
184, 204 P 1076; Lawrence v. Good-
will, 44 CalApp 440, 186 P 781.
Connecticut. Sullivan v. Nesbit,
97 Conn 474, 117 A 502.
Georgia. Parker v. Georgia Paci-
fic Ry. Co., 83 Ga 539, 10 SE 233;
Robertson v. Rigsby, 148 Ga 81, 95
SE 973.
Illinois. Beacon Falls Rubber Co.
v. Gravenhorst, 194 IllApp 205;
Smiley v. Barnes, 19$ IllApp 530;
Waiswila v. Illinois Cent. Ry. Co.,
220 IllApp 113.
Indiana. Holmes v. Buell, 85 Ind
App 467, 153 NE 432; DeHart v.
Johnson County, 143 Ind 363, 41
NE 825.
Iowa. Jamison v. Jamison, 113
la 720, 84 NW 705.
Missouri. Anderson v. Voeltz,
(Mo App), 206 SW 584.
Oregon. Mt. Emily Timber Co.
v. Oregon-Washington Ry. & Nav.
Co., 82 Or 185, 161 P 398.
South Carolina. Dial v. Gardner,
104 SC 456, 89 SE 396; Sloan v.
J. G. White Engineering Co., 105 SC
226, 89 SE 564.
Texas. Moore v. Coleman (Tex
Civ App), 195 SW 212; Rachofsky v.
Rachofsky (TexCivApp), 203 SW
1134; Carl v. Settegast (TexCiv
App), 211 SW 506; Texas Power &
Light Co. v. Bristow (TexCivApp),
213 SW 702.
Utah. Contributory negligence is
determined by all the evidence and
not by that of defendant's wit-
nesses alone. Dimmick v. Utah
Fuel Co., 49 Utah 430, 164 P 872.
Wisconsin. Sullivan v, Minne-
apolis, St. P. & S. S. M. Ry. Co.,
167 Wis 518, 167 NW 311.
43 Glascock v. Gerold, 199 IllApp
134; Meers v. Daley, 203 IllApp
515; Comorouski v. Spring Valley
Coal Co., 203 IllApp 617; Vivian
Collieries Co. v. Cahall, 184 Ind 473,
110 NE 672.
44 Poertner v. Poertner, 66 Wis
644, 29 NW 386; Klipstein v. Ras-
chein, 117 Wis 248, 94 NW 63; Bum-
ham v. Burnham, 119 Wis 509; 97
NW 176, 100 AmSt 895; Neacy v.
Board of Suprs. of Milwaukee
County, 144 Wis 210, 128 NW 1063;
Maahs v. Schultz, 207 Wis 624, 242
NW 195.
45 Cleveland Ry. Co. v. Goldman,
122 OhSt 73, 170 NE 641.
61
INSTRUCTIONS — RULES GOVERNING
210
the jury by a charge that the evidence preponderates for a
proposition when that favorable to it outweighs that which is
against it.46 To entitle one on whom rests the burden of proof
to a finding in his favor, the evidence sustaining his contention
must have greater convincing power than the opposing evidence
and must satisfy the minds of the jury to a reasonable certainty
of the truth of his contention.47
The standard is too high when it is required that the sus-
taining evidence shall be beyond a reasonable doubt,48 or that
there shall be a "clear" preponderance of the evidence,49 or that
the jury shall be "convinced,"50 or that the party must establish
his contention "clearly and to the satisfaction of the jury,"51
or to a "reasonable and moral certainty/'32 or that the evidence
must be "clear, cogent and convincing,"53 or "positive and un-
equivocal,"54 or that the plaintiff must "prove" the allegations
of his complaint,55 or "prove to reasonable certainty every ma-
terial allegation of his complaint,"56 or that the evidence must
46 Travelers Ins. Co. v. Gatli, 118
OhSt 257, 160 NE 710.
47 Anderson v. Chicago Brass Co.,
127 Wis 273, 106 NW 1077; Eich-
man v. Buchheit, 128 Wis 385, 107
NW 325, 8 AnnCas 435.
48 Alabama. Lawson v. Norris,
215 Ala 666, 112 S 129.
California. Galloway v. United
Railroads of San Francisco, 51 Cal
App 575, 197 P 663.
Illinois. Garrett v. Anglo-Ameri-
can Provision Co., 205 IllApp 411.
Missouri. Brooks v. Roberts, 281
Mo 551, 220 SW 11; Collins v. Beck-
mann (Mo), 79 SW2d 1052. But see
Morley v. Prendiville, 316 Mo 1094,
295 SW 563.
Reversible error occurred where
the court told the jury in a dam-
age action that their verdict must
be for the defendant if there re-
mained any doubt as to plaintiff's
proof of the charge of negligence.
Aly v. Terminal R. Assn., 336 Mo
340, 78 SW2d 851.
Utah. Whateott v. Continental
Casualty Co., 85 Utah 406, 39 P2d
733.
49 Illinois. Teter v. Spooner, 305
111 198, 137 NE 129.
Mississippi Choate v. Pierce, 126
Miss 209, 88 S 627.
Oklahoma. But see St. Louis & S.
F. R. Co. v. Bruner, 56 Okl 682,
156 P 649.
Oregon. Kelley v. Joslin, 123 Or
253, 261 P 413.
Pennsylvania. Suravitz v. Pruden-
tial Ins. Co., 261 Pa 390, 104 A 754.
Texas. Wyatt v. Chambers (Tex
CivApp), 182 SW 16.
50 Illinois. Newman v. Newman,
208 IllApp 97; Fowler v. Cade, 214
IllApp 153.
Ohio. Merrick v. Ditzler, 91 Oh
St 256, 110 NE 493.
Washington. Sheller v. Seattle
Title Trust Co., 120 Wash 140, 206
P 847.
5 1 Myerl v. Gutzeit, 50 OhApp
83, 3 OhO 448, 197 NE 503; Carl v.
Settegast (TexComApp), 237 SW
238.
52Whatley v. Long, 147 Ga 323,
93 SE 887.
53 Dovich v. Chief Consol. Min*
Co., 53 Utah 522, 174 P 627. But
see Smith & Co. v. Kimble, 38 SD
511, 162 NW 162.
54 Molyneux v. Twin Falls Canal
Co., 54 Idaho 619, 35 P2d 651, 94
ALR 1264.
55 Southern Exp. Co. v. Roseman,
206 Ala 681, 91 S 612.
56 American Lbr. & Export Co.
v. Love, 17 AlaApp 251, 84 S 559.
211
SUBJECT-MATTER
61
"satisfy" the jury,57 or that the proof of a fact must be by "full
and satisfactory evidence."58
The jury should not be told that the preponderance must be
clear, satisfactory, and convincing.39 It has been held incorrect
for the court to define preponderance of evidence as that degree
of proof which leads the minds of the jury to a conclusion and
convinces their understanding.60 It is reversible error in a negli-
gence case to charge that the jury must find for the defendant
if after considering the evidence there remained in their minds a
doubt of the truth of the charge of negligence against the de-
fendant.61
Preponderance of evidence does not mean greater number of
witnesses,62 yet that fact may be considered by the jury.63 But
under the circumstances of particular cases it may be error for
57 Alabama. Wetzel v. Birming-
ham Southern Ry. Co., 204 Ala 619,
87 S 96; Nabers v. Long, 20-7 Ala
270, 92 S 444; Bierley v. Shelby Iron
Co., 208 Ala 25, 93 S 829.
California. Lawrence v. Goodwill,
44 CalApp 440, 186 P 781.
Georgia. Pope v. Peeples, 24 Ga
App 467, 101 SE 303.
Illinois. Dombrowski v. Metropoli-
tan Life Ins. Co., 192 IllApp 16.
Missouri. Yorger v. Weindel (Mo
App), 245 SW 578. But see Jack-
son v. Maiden (City of) (MoApp),
72 SW2d 850.
Nebraska. Hyndshaw v. Mills,
108 Neb 205, 187 NW 780.
Ohio. Buttermiller v. Schmid, 4
OhApp 100, 25 OhCirCt (N. S.) 201,
26 OhCirDec 50.
58 Carleton-Ferguson Dry Goods
Co. v. McFarland (TexCivApp), 230
SW 208.
59 Purvis v. Hornor, 185 Ark 323,
47 SW2d 48.
60Aarons v. Levy Bros. & Adler
Eochester, Inc., 44 OhApp 488, 38
OLE 25, 185 NE 62.
61 Dempsey v. Horton (Mo), 84
SW2d 621; Grimes v. Red Line
Service, Inc., 337 Mo 743, 85 SW2d
767.
62 California. Hanton v. Pacific
Elec. Ry. Co., 178 Cal 616, 174 P 61.
Connecticut. Fierberg v. Whit-
comb, 119 Conn 390, 177 A 135.
Georgia. Tallulah Falls Ry. Co.
v. Taylor, 20 GaApp 786, 93 SE 533;
Hinson v. Hooks, 27 GaApp 430,
108 SE 822.
Illinois. Coonan v. Straka, 204
IllApp 17.
Indiana. Barnes v. Phillips, 184
Ind 415, 111 NE 419; Davis v.
Babb, 190 Ind 173, 125 NE 403;
Lafayette Tel. Co. v. Cunningham,
63 IndApp 136, 114 NE 227; Cleve-
land, C., C. & St. L. Ry. Co. v.
Vettel, 81 IndApp 625, 133 NE 605.
Michigan. Gardner v. Russell, 211
Mich 647, 179 NW 41.
Missouri. Zackwik v. Hanover
Fire Ins. Co. (MoApp), 225 SW 135.
North Dakota. Shellberg v. Kuhn,
35 ND 448, 160 NW 504.
63 Georgia. See Atlanta Gas-
Light Co. v. Cook, 35 GaApp 622,
134 SE 198.
Illinois. Noone v. Olehy, 297 111
160, 130 NE 476; Osberg v. Cudahy
Packing Co., 198 IllApp 551; Parker
v. Chicago Ry. Co., 200 IllApp 9;
Gordon v. Stadelman, 202 IllApp
255; Powell v. Alton & S. R. Co.,
203 IllApp 60; Rynearson v. Mc-
Cartney, 203 IllApp 555; Horstman
v. Chicago Ry. Co., 211 IllApp 144;
Neville v. Chicago & A. R. Co., 210
IllApp 168; Franz v. St. Louis, S.
& P. R. R. Co., 219 IllApp 558;
Ogren v. Sundell, 220 IllApp 584.
Missouri. Hite v. St. Joseph & G.
I. Ry. Co. (Mo), 225 SW 916.
§62 INSTRUCTIONS — RULES GOVERNING 212
the trial court so to instruct the jury.64 Such an instruction is
improper if coupled with another untenable direction that "the
probability of truth is with the party having the affirmative of
the issue."65 A court may instruct the jury that if it finds that
any of the witnesses testifying for or against a controverted
fact are equal in testimonial value as determined by all tests
of truth or falsity — including credibility, fairness, candor, intelli-
gence, opportunity for observation, corroboration by other testi-
mony, and freedom from interest in the suit — then it may con-
sider any numerical preponderance of such witnesses testifying
on one side as to such fact.66
Of course where the evidence is evenly balanced there can
be no preponderance; and in such a case the one carrying the
burden of proof must lose, and an instruction to that effect is
proper.67 An instruction has been declared confusing and mis-
leading which charged in a negligence action that plaintiff could
not recover if he failed to prove negligence of defendant by a
preponderance of the evidence, or if the jury could not say where
the preponderance of the evidence lay.68
§ 62. Burden of proof and presumption of innocence in criminal
cases.
In criminal cases, the court must instruct that the burden
rests on the state to prove every essential element of the offense
charged in the indictment.
The degree of persuasive proof necessary in criminal cases
is guilt beyond a reasonable doubt. It is obvious that this burden
of persuasion rests on the state, and the judge must so instruct
the jury.69 It is also clear that this burden never at any time
shifts to the accused.70
64 See Chicago v. Van Schaack 68 Mitchell v. Dyer (Mo), 57 SW2d
Bros. Chem. Works, 330 111 264, 161 1082.
NE 486. 69 Federal. Caughman v. United
«5 Ernies v. Dunham, 266 Mich States, 169 CCA 450, 258 F 434;
616, 254 NW 224. Guignard v. United States, 170 CCA
6<* Rice v. Cleveland, 144 OhSt 61, 258 F 607.
299, 29 OhO 447, 58 NE2d 768. Alabama. Haithcock v. State, 21
67 Alabama. Wilson Bros. v. Mo- AlaApp 367, 108 S 401.
bile & 0. R. Co., 208 Ala 581, 94 Florida. Padgett v. State, 40 Fla
S 721. 451, 24 S 145; Alvarez v. State, 41
Georgia. McWilliams v. McWil- Fla 532, 27 S 40.
liams, 166 Ga 792, 144 SE 286. Georgia. Merritt v. State, 152 Ga
Missouri. Stofer v. Dunham (Mo 405, 110 SE 160; Nixon v. State, 14
App), 208 SW 641. GaApp 261, 80 SE 513.
New York. Drena v. Travelers Illinois. People v. Schultz-Knight-
Ins. Co., 192 AppDiv 703, 183 NYS en, 277 111 238, 115 NE 140.
439. Iowa. State v. Comer, 198 la
213 SUBJECT-MATTER § 62
It is placing the burden of proof upon the defendant in a
criminal case for the court to charge the jury to acquit the
defendant if he has caused the jury to entertain a reasonable
doubt as to the charges against him/ ' The burden of establish-
ing that the injury resulted from some cause other than the
act of the defendant cannot legitimately be placed upon the
defendant in a criminal case; the converse being the rule, that
the burden of establishing that the particular injury resulted
from the act of the accused is upon the prosecution.72 Where
a prosecution for theft in the federal court involved the stealing
of automobiles moving in interstate commerce, it was error for
the court in its charge to the jury to omit to state that the
burden of proof was upon the government to show that at the
time of the alleged theft the cars were moving in interstate
commerce.73 In Pennsylvania it has been held error for the
court to tell the jury that the evidence of the commonwealth
made a prima facie case against the defendant or the court
would have taken the case from the jury, the implication being
that the burden shifted to the defendant to prove innocence.74
Presumption of innocence. This is really another way of
saying that the state must convince the jury of the accused's
guilt beyond a, reasonable doubt. Even though an instruction
on reasonable doubt has been given, courts still require an in-
740, 200 NW 185; State v. Brady Kentucky. Williams v. Common-
(la), 91 NW 801. wealth, 258 Ky 830, 81 SW2d 891.
Nebraska. Chamberlain v. State, Michigan. People v. McWhorter,
80 Neb 812, 115 NW 555. 93 Mich 641, 53 NW 780.
Ohio. Morehead v. State, 34 OhSt Mississippi. Cumberland v. State,
212. 110 Miss 521, 70 S 695.
Oklahoma. Beal v. State, 12 Okl New Jersey. State v. Kaplan, 115
Cr 157, 152 P 808; Adair v. State, NJL 374, 180 A 423.
15 OklCr 619, 180 P 253. North Carolina. State v. Kirk-
Pennsylvania. Commonwealth v. land, 178 NC 810, 101 SE 560.
Greene, 227 Pa 86, 75 A 1024, 136 Oklahoma. Carter v. State, 12
AmSt 867. OklCr 164, 152 P 1132; Findley v.
South Carolina. State v. Hamp- State, 13 OklCr 128, 162 P 680,
ton, 106 SC 275, 91 SE 314. Texas. Hawkins v. State, 77 Tex
Texas. The burden is on state Cr 520, 179 SW 448; Crippen v.
first to prove theft by particular State, 80 TexCr 293, 189 SW 496;
person before finding- another guilty Stafford v. State, 125 TexCr 174,
as accomplice. Cone v. State, 86 67 SW2d 285.
TexCr 291, 216 SW 190. 7 f State v. Headley, 113 NJL 335,
Washington. State v. Hatfield, 65 174 A 572.
Wash 550, 118 P 735, AnnCas 1913B, 72 Feldman v. Commonwealth, 258
895. Ky 277, 79 SW2d 960.
Wyoming. Meldrum v. State, 23 73 Me Adams v. United States, 74
Wyo 12, 146 P 596. F2d 37.
70 Colorado. Cook v. People, 60 74 Commonwealth v. Wood, 118
Colo 263, 153 P 214. PaSuperCt 269, 179 A 756.
§62
INSTRUCTIONS — RULES GOVERNING
214
struction on the presumption of innocence,75 or that he is not
called upon to prove his innocence,76 and that the presumption
continues throughout the trial until overcome by legal and
competent evidence.77 An instruction deprives the defendant
73 Alabama. Matthews v. State,
18- AiaApp 222, 90 S 52.
It is error to refuse to charge
that the presumption of innocence
attends the accused in the trial un-
til overcome by facts proving his
guilt beyond a reasonable doubt.
Haithcock v. State, 21 AiaApp 367,
108 S 401.
Georgia. Gardner v. State, 17 Ga
App 410, 87 SE 150.
Illinois. People v. Israel, 269 111
284, 109 NE 969.
Ohio. State v. Knapp, 70 OhSt
380, 71 NE 705, 1 AnnCas 819.
South Carolina. State v. John-
son, 159 SC 165, 156 SE 353.
Texas. Dugan v. State, 86 TexCr
130, 216 SW 161; Roberts v. State,
91 TexCr 433, 239 SW 960;
Virginia. Campbell v. Common-
wealth, 162 Va 818, 174 SE 856.
76 Federal. Dodson v. United
States, 23 F2d 401.
The court should instruct that the
indictment returned against the ac-
cused is not evidence of guilt.
Cooper v. United States, 9 F2d 216.
California. People v. Kiccardi, 50
CalApp 427, 195 P 448.
Massachusetts. Commonwealth v.
McDonald, 264 Mass 324, 162 NE
401.
Texas. McNair v. State, 14 Tex
App 78.
77 Federal. Holt v. United States,
218 US 245, 54 LEd 1021, 31 SupCt
2, 20 AnnCas 1138.
Alabama. Bryant v. State, 116
Ala 445, 23 S 40; Rogers v. State,
117 Ala 192, 23 S 82; Diamond v.
State, 15 AiaApp 33, 72 S 558.
California. The presumption ex-
tends only to the crime charged and
hence an instruction is erroneous
which speaks of presumption of in-
nocence of "any" crime. People
v. Southwell, 28 CalApp 430, 152 P
939.
Florida. Long v. State, 42 Fla
509, 28 S 775.
Georgia. Hodge v. State, 116 Ga
852, 43 SE 255; Waters v. State,
150 Ga 623, 104 SE 626; Bass v.
State, 152 Ga 415, 110 SE 237;
Richardson v. State, 8 GaApp 26,
68 SE 518; Webb v. State, 11 GaApp
850, 75 SE 815, 76 SE 990; Hayes
v. State, 18 GaApp 68, 88 SE 752;
Ponder v. State, 18 GaApp 703, 90
SE 365; Finch v. State, 24 GaApp
339, 100 SE 793; Summerlin v. State,
25 GaApp 568, 103 SE 832; Varner
v. State, 27 GaApp 291, 108 SE
80.
Illinois. People v. Patrick, 277 111
210, 115 NE 390; People v. Collins,
332 111 222, 163 NE 694.
Indiana. Snell v. State, 50 Ind
516.
Iowa. State v. Meyer, 180 la 210,
163 NW 244.
Massachusetts. But see Common-
wealth v. DeFrancesco, 248 Mass 9,
142 NE 749, 34 ALR 937.
• "Michigan. People v. Yund, 163
Mich 504, 128 NW 742; People v.
McClintic, 193 Mich 589, 160 NW
461, LRA 1917C, 52.
Missouri. State v. Baker, 136 Mo
74, 37 SW 810; State v. Dooms, 280
Mo 84, 217 SW 43; State v. Martin
(Mo), 195 SW 731; State v. Jones
(Mo), 225 SW 898.
It is not reversible error to re-
fuse an instruction on the presump-
tion of innocence when the court has
fully instructed on the doctrine of
reasonable doubt. State v. Maupin,
196 Mo 164, 93 SW 379. •
It is proper to instruct that the
presumption of innocence protects
the defendant until it is overcome
by clear, satisfactory, and abiding
evidence proving his guilt beyond a
reasonable doubt. State v. Newland
(Mo), 285 SW 400.
Montana. State v. Harrison, 23
Mont 79, 57 P 647.
215 SUBJECT-MATTER § 62
of the presumption of innocence which tells the jury that a
presumption of guilt arises from the defendant's escape or
flight.78
Although not a true presumption in the sense of some kind
of inference from a fact based on probability, a few courts
have declared that it is error for the trial court to omit an
instruction that the presumption of innocence is itself evidence
to be weighed with respect to all material questions affecting
the guilt of the defendant.79 Other courts recognizing the true
function of the presumption of innocence as means of clarifica-
tion, deny that the presumption is evidence that runs with the
defendant throughout the trial.80
Self-defense and justification. Although these arguments
advanced by the accused may be termed "affirmative defenses,"
he does not have the burden of proving them beyond a reason-
able doubt. It is clear in many states that he does not have
the burden of persuasion, as distinguished from the burden of
producing evidence, to any degree. It is not error to charge
that the accused is not required to establish the plea of self-
defense by the preponderance of the evidence.81 It is error
to tell the jury that a defendant cannot avail himself of self-
defense unless he convinces the jury that a defense was neces-
sary.82 It is error for the court to charge that the burden is
upon the defendant to prove that he believed or had good cause
to believe that it was necessary for him to inflict the injury,
before the accused could avail himself of the plea of self-de-
New Mexico. State v. Kelly, 27 that establishes guilt beyond a rea-
NM 412, 202 P 524, 21 ALR 156. sonable doubt. Emery v. State, 101
Ohio, State v. Knapp, 70' OhSt Wis 627, 78 NW 145.
380, 71 NE 705, 1 AnnCas 819. 7Q State v. Moberg, 316 Mo 647,
South Carolina. State v. Bram- 291 SW 118.
lett, 114 SC 389, 103 SE 755. See also § 66, infra.
Texas. Flournoy v. State, 57 Tex 7Q State v. Coomer, 105 Vt 175,
Cr 88, 122 SW 26; McDowell v. 163 A 585, 94 ALR 1038. See Con-
State, 69 TexCr 545, 155 SW 521. nell v. State, 153 Ga 151, 111 SE
Washington. State v. Mayo, 42 545; Proctor v. State, 49 GaApp
Wash 540, 85 P 251, 7 AnnCas 881; 497, 176 SE 96; Kellar v. State,
State v. Tyree, 143 Wash 313, 255 192 Ind 38, 134 NE 881.
P 382. 80 Commonwealth v. Devlin, 335
Wisconsin. Cobb v. State, 191 Wis Mass 555, 141 NE2d 269.
652, 211 NW 785. 8I State v. Vargo, 116 OhSt 495,
It has been held that it is not 156 NE 600. But see State v. Van-
accurate to instruct that the pre- cak, 90 OhSt 211, 107 NE 511.
sumption of innocence "prevails" 82 People v. Asbury, 257 Mich 297,
throughout the trial. It is more 241 NW 144.
proper to say that the presumption 83 Flick v. State, 207 Ind 473, 193
"attends" the accused and must pre- NE 603.
vail unless overcome by evidence
§ 62 INSTRUCTIONS — RULES GOVERNING 216
fense.83 An instruction is erroneous which places upon the
defendant the burden of proving an affirmative defense.84
But where the commission of the offense is clearly es-
tablished and does not disclose mitigating circumstances, then
the duty of showing mitigating or justifying circumstances is
very generally held to devolve on the defendant.85 Where there
is a statutory provision that when homicide is proved the
burden devolves upon the accused to establish circumstances
in mitigation, justification, or excuse, it is proper for the court
so to instruct the jury.86
Defense of insanity. To avoid waste of time and effort, the
state is not required initially to prove the accused's sanity,
there being a presumption of sanity, although the court should
not charge that the presumption of sanity has evidentiary
value.87 In this respect, the defense of insanity is similar to
an affirmative defense. Since the issue of sanity will usually
not be raised without the defendant first producing evidence of
his insanity, the important question is not whether he has
satisfied the burden of producing evidence, but whether he has
the burden of persuasion and to what degree. On this question,
the courts are not in agreement.
Some courts have held that it is error to instruct that the
burden of proving a defense of insanity is upon the defendant,88
This would mean that the state must prove the defendant's
sanity beyond a reasonable doubt. Other courts do place the
burden of persuasion on the defendant, but to a different degree,
An instruction placing on accused a greater burden as to de-
fense of insanity than proof by a preponderance of the evidence
is erroneous.89 In Georgia, the degree of persuasion is the
"reasonable satisfaction" of the jury.90
84 Iowa. State v. Gude, 201 la North Carolina. State v. Gaddy,
4, 206 NW 584. 166 NC 341, 81 SE 608.
Kentucky. Jones v. Common- Pennsylvania. Commonwealth v.
wealth, 213 Ky 356, 281 SW 164. Calhoun, 238 Pa 474, 86 A 472.
Pennsylvania, Commonwealth v. 86 Rosser v. State, 45 Ariz 264,
Baker, 285 Pa 77, 131 A 655. 42 P2d 613.
Texas. Dent v. State, 103 TexCr 87 State v. Green, 78 Utah 580, 6
657, 281 SW 1066. P2d 177.
ss Arkansas. Johnson v. State, 8S Birchfield v. State, 217 Ala 225,
120 Ark 193, 179 SW 361. 115 S 297; People v. Saylor, 319 111
California. See also People v. 205, 149 NE 767.
Andrade, 29 CalApp 1, 154 P 283. 89 State v. Austin, 71 OhSt 317,
Georgia. Grigg-s v. State, 17 Ga 73 NE 218, 104 AmSt 778; State v.
App 301, 86 SE 726; Elrod v. State, Hauser, 101 OhSt 404, 131 NE 66.
27 GaApp 265, 108 SE 67. See § 58, supra.
Montana. State v. Davis, 60 Mont 9O Walker v. State, 208 Ga 99, 65
426, 199 P 421; State v. Bess, SE2d 403.
60 Mont 558, 199 P 426.
217 SUBJECT-MATTER § 63
Criminal intent. If there be evidence in a prosecution for
theft of an automobile that the taking was open, with no
attempt thereafter of concealment, the court should instruct
that from such facts there would arise a presumption against
criminal intent.91
Alibi. An instruction is erroneous which places upon the
defendant the burden of proving a defense of alibi.92
Motive. The jury are not merely to be told that the failure
to show a motive affords a substantial presumption that the
defendant is not guilty.93
§ 63. Circumstantial evidence in civil cases.
Where a party relies upon circumstantial evidence to support
a contention, the jury should be instructed to take this evi-
dence into consideration in determining the issue.
Instructions should cover the entire case and embrace all
the testimony, whether direct or circumstantial,94 and where a
litigant relies on circumstantial evidence, in whole or in large
part, he has the right to have the jury instructed that they may
consider it.95 Where, however, some circumstantial evidence
is introduced, but the case is not based thereon, there is no
error in refusing to give an instruction respecting it.96
It has been held proper for the court to charge that facts
cannot be said to be established by circumstantial evidence
alone.97
91 Hickman v. State, 25 AlaApp Wisconsin, United States Exp.
279, 145 S 167. Co. v. Jenkins, 64 Wis 542, 25 NW
92 Alabama. Seale v. State, 21 549.
AlaApp 351, 108 S 271. 9S Maryland. State v. Hammond's
Ohio. Walters v. State, 39 OhSt Exrs., 6 Gill & J. (Md) 157.
215; State v. Norman, 103 OhSt Missouri. Culbertson v. Hill, 87
541, 134 NE 474. Mo 553.
Oregon. State v. Milosevieh, 119 Texas. Jones v. Hess (TexCiv
Or 404, 249 P 625. App), 48 SW 46; West v. Cashin
South Carolina. State v. Hester, (TexCivApp), 83 SW2d 1001.
137 SC 145, 134 SE 885. Wisconsin. United States Exp.
Texas. Caldwell v. State, 117 Tex Co. v. Jenkins, 64 Wis 542, 25 NW
Cr 145, 35 SW2d 165 (alibi). 549.
Wisconsin. Fracearo v. State, 189 96 Roberts v. Port Blakely Mill
Wis 428, 207 NW 687. Co., 30 Wash 25, 70 P 111.
See also § 72, infra. In Notarfraneesco v. Smith, 105
93 State v. Fox, 52 Idaho 474, 16 Conn 49, 134 A 151, it was held not
P2d 663. error to reject a request to charge
94 Georgia. Louisville & N. R. in an accident case that due care
Co. v. Pounds, 50 GaApp 611, 179 of deceased might be proved by
SE 235. circumstantial evidence.
Texas. Parr v. Gardner (TexCiv 97 Ferber v. Great Northern Ry.
App), 293 SW 859. Co., 205 la 291, 217 NW 880.
§64
INSTRUCTIONS — KULES GOVERNING
218
§ 64. Circumstantial evidence in criminal cases.
As far as competency is concerned, no distinction is made
in criminal cases between direct and circumstantial evidence.
But the courts are divided as to whether the trial court must of
its motion charge on circumstantial evidence, where the prosecu-
tion relies wholly on such evidence for a conviction.
The mere fact that evidence is circumstantial does not affect
its admissibility in criminal cases.98 In its weight and effect,
it is not to be distinguished from direct evidence." Yet it
has been held permissible for the court to advise the jury to
scan circumstantial evidence very cautiously.1 It is not error
if the trial court tells the jury that few violators would be con-
victed if the state had to depend upon direct proof in every
criminal case,2
In some situations, a request for an instruction on circum-
stantial evidence is properly denied. Obviously, the instruction
should not be given where the evidence of guilt is direct and
positive,3 or the defendant admits the commission of the offense
"Arkansas. Kellogg v. State,
153 Ark 193, 240 SW 20; Hixson
v. State, 158 Ark 642, 239 SW
1057.
California. People v. Stennett, 51
CalApp 370, 197 P 372.
Where evidence is circumstantial,
it is proper to instruct that the
evidence must not only be consistent
with the hypothesis of guilt but in-
consistent with every other rational
hypothesis. People v. Muhly, 15
CalApp 416, 114 P 1017.
Georgia, Where the defendant
relies on circumstantial evidence it
is error to charge that the proved
facts must not only be consistent
with innocence but inconsistent with
guilt. Sikes v. State, 120 Ga 494,
48 SE 153.
Nebraska. Cunningham v. State,
56 Neb 691, 77 NW 60.
South Carolina. An instruction
that the circumstances relied on
must be proved to the entire satis-
faction of the jury should also state
that the circumstances must be in-
consistent with any other reason-
able hypothesis than the guilt of
the accused. State v. Hudson, 66
SC 394, 44 SE 968, 97 AmSt 768.
Virginia. Longley v. Common-
wealth, 99 Va 807, 37 SE 339.
99 State v. Letz, 294 Mo 333, 242
SW 681; People v. Garkus, 358 111
106, 192 NE 653; Martin v. Com-
monwealth, 223 Ky 762, 4 SW2d 419;
Bond v. Commonwealth, 257 Ky 366,
78 SW2d 1.
In People v. Watts, 198 Cal 776,
247 P 884, it was held error to
charge that nothing in the nature
of circumstantial evidence made it
any less reliable than other evidence.
1 Peoples v. Commonwealth, 147
Va 692, 137 SE 603.
2 Crawford v. State, 21 AlaApp
437, 109 S 181.
3 Alabama. McCoy v. State, 170
Ala 10, 54 S 428; Latner v. State,
20 AlaApp 180, 101 S 522.
California. People v. Holden, 13
CalApp 354, 109 P 495.
Georgia. Moore v. State, 97 Ga
759, 25 SE 362; Cole v. State, 178
Ga 674, 173 SE 655; Harper v. State,
12 GaApp 651, 77 SE 915; Horton
v. State, 21 GaApp 120, 93 SE 1012.
Illinois. People v. Paddock, 300
111 590, 133 NE 240.
Kansas. State v. Loar, 116 Kan
485, 227 P 359.
Missouri. State v. Mills, 272 Mo
526, 199 SW 131; State v. Dowell,
331 Mo 1060, 55 SW2d 975; State
v. Shepard, 334 Mo 423, 67 SW2d
91.
219
SUBJECT-MATTER
64
charged.4 It is not necessary to charge on circumstantial evi-
dence where only the venue is disputed and not the fact of the
offense.5
If circumstantial evidence is competent and admitted in
a case, is the trial court required to instruct on circumstantial
evidence, that is, even though there has been no request? On
this question, the courts are in general agreement where some
evidence is direct and some circumstantial. In this situation,
a request is necessary.6 A refinement of this rule may be that
North Dakota. State v. Poster, 14
ND 561, 105 NW 938.
Ohio. Carano v. State, 3 OhCirCt
(N. S.) 629, 14 OhCirDec 93.
Oklahoma. Price v. State, 9 Okl
Cr 359, 131 P 1102; Carroll v. State,
54 OklCr 196, 16 P2d 891.
Oregon. State v. Holbrook, 98 Or
43, 188 P 947, 192 P 640, 193 P 434.
Texas. Yancy v. State, 48 TexCr
166, 87 SW 693; Sellers v. State,
61 TexCr 140, 134 SW 348; Willcox
v. State, 68 TexCr 138, 150 SW
898 (eye-witnesses) ; Borrer v. State,
83 TexCr 198, 204 SW 1003; Hinton
v. State, 122 TexCr 438, 55 SW2d
837; Bybee v. State, 122 TexCr 593,
57 SW2d 129; Jones v. State (Tex
Cr), 77 SW 802 (facts testified to
by eye-witnesses); Hoffman v. State,
126 TexCr 114, 70 SW2d 182.
Where the evidence in a trial for
murder was circumstantial and
there was no question that the
murder was committed, a charge
was sufficient that the facts proved
must be consistent with each other
as to the guilt of the accused and
taken together must be of a con-
clusive nature, producing a reason-
able and moral certainty that the
defendant "and no other person"
committed the offense charged. Crow
v. State, 37 TexCr 295, 39 SW 574.
Where evidence was direct, there
was no necessity for instruction on
circumstantial evidence, though in-
tent was proved by circumstances.
Williams v. State, 58 TexCr 82, 124
SW 954.
4 Federal. Ossendorf v. United
States, 272 P 257.
Alabama. Dennis v. State, 118
Ala 72, 23 S 1002.
Georgia. Griner v. State, 121 Ga
614, 49 SE 700; Harris v. State,
152 Ga 193, 108 SE 777; Brantley
v. State, 154 Ga 80, 113 SE 200.
Oklahoma. Hollingsworth v. State,
50 OklCr 164, 297 P 301.
South Dakota. State v. Harbour,
27 SD 42, 129 NW 565.
Tennessee. Moon v. State, 146
Tenn 319, 242 SW 39.
Texas. Whitehead v. State, 49
TexCr 123, 90 SW 876; Worsham v.
State, 56 TexCr 253, 120 SW 439,
18 AnnCas 134; Ellington v. State,
63 TexCr 420, 140 SW 1102; Fitz-
gerald v. State, 87 TexCr 34, 219
SW 199; Berdell v. State, 87 TexCr
310, 220 SW 1101; Tillman v. State,
88 TexCr 10, 225 SW 165; Miller
v. State, 88 TexCr 157, 225 SW
262; Escobedo v. State, 88 TexCr
277, 225 SW 377 (automobile theft) ;
Roberts v. State, 91 TexCr 433, 239
SW 960; Ruiz v. State, 92 TexCr
73, 242 SW 231; Bailey v. State,
97 TexCr 312, 260 SW 1057 (admis-
sion must be unequivocal); De-
Laney v. State, 98 TexCr 98, 263
SW 1065.
Utah. State v. Overson, 30 Utah
22, 83 P 557, 8 AnnCas 794.
5 Steadham v. State, 40 TexCr
43, 48 SW 177.
«* Federal. Bedell v. United States,
78 F2d 358.
Alabama. Overby v. State, 24
AlaApp 254, 133 S 915.
Georgia. Chamblee v. State, 50
GaApp 251, 177 SE 824; Morris v.
State, 51 GaApp 145, 179 SB 822.
Minnesota. State v. Bailey, 235
Minn 204, 50 NW2d 272.
Oklahoma. Aday v. State, 28
OklCr 201, 230 P 280.
§ 64 INSTRUCTIONS — RULES GOVERNING 220
no instruction is necessary where the circumstantial evidence is
merely corroborative of the direct evidence.7 But where the
evidence is both direct and circumstantial, it would seem the
better practice to define each class of evidence and explain the
difference between them,8
Where the prosecution's case is based wholly on circum-
stantial evidence, the courts are divided as to whether the
trial court must instruct on circumstantial evidence, whether
requested or not. It therefore becomes important in some juris-
dictions to determine whether the case is based wholly on cir-
cumstantial evidence.
The evidence is wholly circumstantial where the main fact
is shown by inference from other facts in evidence.9 Thus, in
a prosecution for cattle theft, the evidence was wholly circum-
stantial where it was shown that the defendant had been in
possession of the cattle which he kept in a third person's
pasture, although there was no direct testimony that he took
the cattle from the owner.10 But it is a case of direct evidence
where an officer testifies that the defendant admitted guilt of
the offense charged. ' l
Assuming1 the only evidence is circumstantial, some courts
require the trial court on its own. motion to instruct the jury
on circumstantial evidence.12 Other courts require a request
Wyoming. State v. Wilson, 32 ' ° Brown v. State, 126 TexCr 449,
Wyo 37, 228 P 803. 72 SW2d 269.
7 State v. Shives, 100 Kan 588, See also: State v. Swarens, 294
165 P 272; Tyler v. State, 78 TexCr Mo 139, 241 SW 934; Coleman v.
279, 180 SW 687. State, 82 TexCr 332, 199 SW 473;
8 Federal. In McLendon v. United Grant v. State, 87 TexCr 19, 218
States, 13 F2d 777, it is said that SW 1062; Skirlock v. State, 103
where the evidence is circumstan- TexCr 539, 104 TexCr 420, 284 SW
tial, or where it is both direct and 545.
circumstantial, the court should ' ' Christy v. State, 126 TexCr
charge that the accused should be 330, 71 SW2d 270.
acquitted if the evidence was as In People v. Guido, 321 111 397,
consistent with innocence as with 152 NE 149, it was held where the
guilt. See also Hendrey v. United evidence tending to connect the ac-
States, 147 CCA 75, 233 F 5. cused with the commission of the
California. People v. Bailey, 82 offense consisted of circumstances
CalApp 700, 256 P 281. together with his alleged confession,
Georgia. Joiner v. State, 105 Ga it was proper to charge as to cir-
646, 31 SE 556. cumstantial evidence.
Illinois. People v. Harrison, 359 ' 2 Alabama. It is error in an
111 295, 194 NE 518. instruction to state that circum-
Peimsylvania. See Commonwealth stantial evidence must be so strong
v. Appel, 115 PaSuperCt 496, 176 as to lead with "unerring certainty"
A 44. to conclusion of guilt; the test is
9 Sanders v. State, 127 TexCr 55, beyond reasonable doubt. Lawson
75 SW2d 116. v. State, 16 AlaApp 174, 76 S 411.
221
SUBJECT-MATTER
§64
Arkansas. Cunningham v. State,
149 Ark 336, 232 SW 425.
California. People v. Stennett, 51
CalApp 370, 197 P 372; People v.
Allen, 138 CalApp 652, 33 P2d 77.
But see the California case in
note 13, infra.
Georgia. Hamilton v. State, 96
Ga 301, 22 SE 528; Day v. State,
133 Ga 434, 66 SE 250; Yaughan v.
State, 148 Ga 517, 97 SE 540;
Gravett v. State, 150 Ga 74, 102 SE
426; Callaway v. State, 151 Ga 342,
106 SE 577; Harris v. State, 152
Ga 193, 108 SE 777; Warren v.
State, 153 Ga 354, 112 SE 283;
Brantley v. State, 154 Ga 80, 113
SE 200; Brown v. State, 178 Ga
772, 174 SE 536; Reece v. State,
208 Ga 165, 66 SE2d 133; Benton v.
State, 9 GaApp 422, 71 SE 498;
Mitchell v. State, 18 GaApp 501, 89
SE 602; Harris v. State, 18 GaApp
710, 90 SE 370; Bush v. State, 23
GaApp 126, 97 SE 554; Reynolds
v. State, 23 GaApp 369, 98 SE 246;
Davis v. State, 24 GaApp 35, 100 SE
50; Griffin v. State, 24 GaApp 656,
101 SE 767; Johnson v. State, 27
GaApp 191, 107 SE 780; Dewitt
v. State, 27 GaApp 644, 109 SE 681;
Coney v. State, 31 GaApp 569, 121
SE 132; Hester v. State, 32 GaApp
81, 122 SE 721; Butler v. State,
47 GaApp 56, 169 SE 760.
But see the Georgia cases in note
13, infra.
Illinois. People v. Matthews, 359
111 171, 194 NE 220.
Indiana. Robinson v. State, 188
Ind 467, 124 NE 489.
But see the Indiana case in note
13, infra.
Iowa. See Wells v. Chamberlain,
185 la 264, 168 NW 238; State v.
Glendening, 205 la 1043, 218 NW
939.
But see the Iowa cases in note 13,
infra.
Kansas. State v. Pack, 106 Kan
188, 186 P 742; State v. Ward, 107
Kan 498, 192 P 836.
Kentucky. Duroff v. Common-
wealth, 192 Ky 31, 232 SW 47; Wolf
v. Commonwealth, 214 Ky 544, 283
SW 385.
Missouri. State v. Donnelly, 130
Mo 642, 32 SW 1124; State v.
Swarens, 294 Mo 139, 241 SW 934;
State v. Johnson (Mo), 252 SW 623:
State v. Miller, 292 Mo 124, 237 SW
498; State v. Sandoe, 316 Mo 55,
289 SW 890; State v. Fitzgerald
(Mo), 201 SW 86.
But see Missouri cases in note 13,
infra.
Montana. State v. Francis, 58
Mont 659, 194 P 304.
New Mexico. State v. McKnight,
21 NM 14, 153 P 76.
New York. People v. Trimarchi,
231 NY 263, 131 NE 910; People v.
D'Anna, 243 AppDiv 259, 277 NYS
279.
Ohio. Lambert v. State, 105 OhSt
219, 136 NE 921; Carter v. State, 4
OhApp 193, 22 OhCirCt (N. S.) 154.
But see Ohio case in note 13,
infra.
Oklahoma. Pierson v. State, 13
OklCr 382, 164 P 1005; Criswell v.
State, 26 OklCr 444, 224 P 373;
Chapman v. State, 28 OklCr 208,
230 P 283; Breedlove v. State, 49
OklCr 428, 295 P 239.
But see Oklahoma cases in note
13, infra.
Pennsylvania. Commonwealth v.
Braunfelt, 72 PaSuperCt 25.
Tennessee. Barnards v. State, 88
Tenn 183, 12 SW 431; Webb v.
State, 140 Tenn 205, 203 SW 955,
15 ALR 1034; Moon v. State, 146
Tenn 319, 242 SW 39.
Texas. Boswell v. State, 59 Tex
Cr 161, 127 SW 820; Jones v. State,
59 TexCr 559, 129 SW 1118; Bick-
ham v. State, 126 TexCr 511, 72
SW2d 1095; Allen v. State, 127
TexCr 181, 75 SW2d 101; Carrell v.
State, 79 TexCr 231, 184 SW 190;
Bloch v. State, 81 TexCr 1, 193 SW
303; Renfro v. State, 82 TexCr 197,
198 SW 957; Love v. State, 82 TexCr
411, 199 SW 623; Anderson v. State,
85 TexCr 411, 21S SW 639; Miller
v. State, 88 TexCr 69, 225 SW 379,
12 ALR 597; Miller v. State, 88
TexCr 77, 225 SW 382; Moore v.
State, 89 TexCr 87, 229 SW 508;
Atwood v. State, 90 TexCr 112, 234
SW 85; Rundell v. State, 90 TexCr
§64
INSTRUCTIONS — RULES GOVERNING
222
for such a charge.13 In the former jurisdictions, the trial court
is required to instruct on such evidence, even though the de-
410, 235 SW 908; Marinkovieh v.
State, 96 TexCr 59, 255 SW 734;
Garner v. State (TexCr), 70 SW
213; Inness v. State, 106 TexCr 524,
293 SW 821; Duke v. State, 117
TexCr 381, 36 SW2d 732; Barber v.
State, 127 TexCr 532, 78 SW2d 183;
Ryan v. State, 128 TexCr 482, 82
SW2d 668.
But see Texas case in note 13,
infra.
Utah. People v. Scott, 10 Utah
217, 37 P 335. See State v. Brown,
39 Utah 140, 115 P 994, AnnCas
1913E, 1.
But see Utah case in note 13,
infra.
Wisconsin. A charge used by trial
judges in Wisconsin is as follows:
"All the evidence produced by the
state is circumstantial. There is no
direct or positive evidence that the
defendant committed the crime
charged. And to warrant a convic-
tion on circumstantial evidence each
fact necessary to the conclusion . . .
[of guilt] must be proven by com-
petent evidence beyond a reasonable
doubt, and all the facts . . . [so
proven] must be consistent with each
other and with the main fact sought
to be proved, and the circumstances,
taken together, must be of a con-
clusive nature, . . . and producing,
in effect, a reasonable and moral
certainty that the accused, and no
other person, committed the offense
charged. The mere union of a
limited number of independent cir-
cumstances, each of an imperfect
and inconclusive character, will not
justify a conviction. They must be
such as to generate and justify full
belief according to the standard rule
of certainty. It is not sufficient that
they coincide with and render prob-
able the guilt of the accused. . .
[The facts so proven] must be ab-
solutely incompatible with innocence,
and incapable of explanation upon
any other reasonable hypothesis than
that of guilt."
See Colbert v. State, 125 Wis 423,
104 NW 61.
Wyoming. Gardner v. State, 27
Wyo 316, 196 P 750, 15 ALR 1040y
State v. Wilson, 32 Wyo 37, 228 P
803.
1 3 Federal. Hughes v. United
States, 145 CCA 238, 231 F 50;
Herman v. United States, 48 F2d
479.
California. People v. Balkwell,
143 Cal 259, 76 P 1017.
But see the California cases in
note 12, supra.
Colorado. Reagan v. People, 49
Colo 316, 112 P 785.
Florida. Ford v. State, 80 Fla 781,
86 S 715; McCall v. State, 116 Fla
179, 156 S 325.
Georgia. Jones v. State, 105 Ga
649, 31 SE 574; Middleton v. State,
7 GaApp 1, 66 SE 22; Lepinsky v.
State, 7 GaApp 285, 66 SE 965;
Harvey v. State, 8 GaApp 660, 70
SE 141; Teague v. State, 48 GaApp
225, 172 SE 571.
But see the Georgia cases in note
12, supra.
Indiana. See Bohan v. State, 194
Ind 227, 141 NE 323.
But see the Indiana case in note
12, supra.
Iowa. State v. Bartlett, 128 la
518, 105 NW 59; State v. Hay ward,
153 la 265, 133 NW 667.
But see the Iowa cases in note 12,
supra.
Kansas. State v. Woods, 105 Kan
554, 185 P 21; State v. Davis, 106
Kan 527, 188 P 231.
Louisiana. State v. Holbrook, 153
La 1025, 97 S 27.
Michigan. People v. Dellabonda,
265 Mich 486, 251 NW 594.
Mississippi. Warren v. State, 166
Miss 284, 146 S 449.
Missouri. State v. Hubbard, 223
Mo 80, 122 SW 694; State v. Single-
ton (Mo), 77 SW2d 80:
But see Missouri cases in note 12,
supra.
223
SUBJECT-MATTER
65
fendant requests his own instruction which is erroneous; in
such a case, it is as if no request had been made, and the duty
of the court arises from the general principle.14
§ 65. Positive and negative testimony.
The court may charge the law as to the comparative value
of positive and negative testimony where both kinds of testi-
mony are before the jury.
Negative testimony relates to the denial of the existence
of a fact, while affirmative testimony relates to the existence
of a fact. Most courts are permitted to instruct the jury on
the relative quality of the two kinds of testimony.15 Common
examples of these types of testimony occur as to whether warn-
ing signals were given at a railroad crossing or whether there
were any lights and barriers around a street defect.
The rule in most states is that it is proper to instruct the
jury that the positive testimony is of more probative value
than the negative. But the charge should not be given without
qualifications that the witnesses are equally credible or that
they had equal opportunities for observation. To put it in
another way, all other things being equal, if they ever are,
Nebraska. Nunnenkamp v. State,
129 Neb 264, 261 NW 418.
Ohio. Carter v. State, 4 OhApp
193, 22 OhCirCt (N. S.) 154.
But see Ohio cases in note 12,
supra.
Oklahoma. Hagerty v. State, 22
OklCr 136, 210 P 300; Little v.
State, 34 OklCr 270, 245 P 1062;
Ayers v. State, 53 OklCr 89, 7 P2d
918.
But see Oklahoma cases in note 12,
supra.
South Carolina. State v. Bunyon,
137 SC 391, 135 SE 361.
South Dakota. State v. Colvin,
24 SD 567, 124 NW 749; State v.
Millard, 30 SD 169, 138 NW 366.
Texas. Arismendis v. State, 41
TexCr 374, 54 SW 599; Williams v.
State, 58 TexCr 82, 124 SW 954;
Bonner v. State, 58 TexGr 195, 125
SW 22; Russell v. State, 108 TexCr
308, 300 SW 74; Scott v. State (Tex
App), 12 SW 504; Borger v. State,
126 TexCr 5, 70 SW2d 195; Dobbins
v. State, 127 TexCr 380, 76 SW2d
1057.
But see Texas cases in note 12,
supra.
Utah. State v. Romeo, 42 Utah
46, 128 P 530.
But see Utah cases in note 12,
supra.
14 People v. Scott, 10 Utah 217, 37
P 335; Gardner v. State, 27 Wyo
316, 196 P 750, 15 ALR 1040.
1 s Georgia. Heywood v. State, 12
GaApp 643, 77 SE 1130; Chewning
v. State, 18 GaApp 11, 88 SE 904;
Williams v. State, 23 GaApp 542,
99 SE 43.
Illinois. See Hofer v. Chicago, B.
& Q. R, Co., 237 IllApp 309.
Kansas. But see Smith v. Bush,
102 Kan 150, 169 P 217,
Ohio. Toledo Consol. Street Ry.
Co. v. Rohner, 9 OhCirCt 702, 6 Oh
CirDec 706.
Wisconsin. Wickham v. Chicago
& N. W. Ry. Co., 95 Wis 23, 69 NW
982; Ryan v. Philippi, 108 Wis 254,
83 NW 1103; Alft v. Clintonville,
126 Wis 334, 105 NW 561; Ives v.
Wisconsin Cent. Ry. Co., 128 Wis
357, 107 NW 452; Canning v. Chi-
cago & M. Elec. Ry. Co., 163 Wis
448, 157 NW 532.
§ 65 INSTRUCTIONS — RULES GOVERNING 224
positive testimony is better than negative.16 Some states go
so far as to hold that it is proper to instruct that the positive
testimony of a small number of witnesses will outweigh the
negative testimony of a greater number of witnesses.17
Psychologically, there may be some basis for the conclusion
that positive testimony is better than negative testimony. The
stimuli causing a person to believe he observed an event are
less than the stimuli causing a person to believe than an event
did not occur. Hence, as between the two kinds of testimony,
the probability of error is less with the one testifying affirma-
tively. This takes into account the possibility that the one
testifying affirmatively may have been stimulated by recurring
past experiences to testify that on this occasion the same thing
did happen. There are other refinements.
The fact that all testimony may be said to be positive
does not solve the problem. If the question is whether a train
gave an audible signal, the witness testifying that it did not
could be said to be testifying positively, i.e., to the non-ex-
istence of the signal. This seems to be a matter of mere form.
The question is still whether or not a signal was given, whether
a phenomenon did or did not occur.
Yet, if there are so many refinements as to the margin of
error psychologically and if juries are to decide facts on the
weight of the evidence and the credibility of witnesses, the
reasonable solution is to forbid an instruction on the relative
weight of positive and negative testimony. If a judge is not
to comment on the weight of the evidence or to instruct the
jury what to believe, the relative quality of negative and posi-
1 6 Illinois. Zbinden v. De Moulin thing about which they testified and
Bros. & Co,, 245 IllApp 248. directly contradicting each other,
Kansas. See State v. Henson, 105 one of them directly testifying that
Kan 581, 185 P 1059. it occurred and the other that it
Ohio. State v. Davies, 101 OhSt did not. Skinner v. State, 108 Ga
487, 129- NE 590; Cleveland, C., C. 747, 32 SE 844.
<& St. L. Ry. Co. v. Eicherson, 19 Virginia. Virginian Ry. Co. v.
OhCirCt 385, 10 OhCirDec 326; Cin- Bacon, 156 Va 337, 157 SE 789;
cinnati Trac. Co. v. Harrison, 24 Oh Virginian Ry. Co. v. Haley, 156 Va
CirCt (N. S.) 1, 34 OhCirDec 435. 350, 157 SE 776.
Pennsylvania, Costack v. Penn- l7 Draper v. Baker, 61 Wis 450,
sylvania Ry. Co., 376 Pa 341, 102 21 NW 527; Hinton v. Cream City
A2d 127. R. Co., 65 Wis 323, 27 NW 147;
Contra: Georgia. Minor v. State, Hildman v. Phillips, 106 Wis 611,
120 Ga 490, 48 SE 198. 82 NW 566; Hill v. Gates County,
The rule relating to the distinction 112 Wis 482, 88 NW 463; Dixon v.
between positive and negative evi- Russell, 156 Wis 161, 145 NW 761.
dences should not be given when Contra: Kansier v. Billings, 56
there are two witnesses having equal Mont 250, 184 P 630 (comment on
facilities for seeing or hearing the weight of evidence).
225
SUBJECT-MATTER
:66
tlve testimony, being inseparable from credibility and weight,
should be left for the jury to decide.
§ 66. Inferences from flight.
In criminal cases where there is evidence of flight by the
accused after the commission of a crime, the court is permitted
to tell the jury that flight may be considered by them as a
circumstance bearing on the guilt of the accused with all the
other evidence in the case.
It is proper to instruct the jury that if the fact of flight
is believed, it may be considered with other evidence in de-
termining the guilt of the accused.18 A person may flee from
the scene of a crime, or he may flee after he discovers that he
has been accused of the crime, or he may flee to avoid arrest
by the police. In any event, an instruction on flight is not
proper unless the evidence supports a fair inference that de-
1 8 Federal. Allen v. United States,
164 US 492, 41 LEd 528, 17 SupCt
154; Campbell v. United States, 136
CCA 602, 221 F 186; Rowan v.
United States, 277 F 777, 25 ALR
876.
Alabama. Gardner v. State, 17
AlaApp 589, 87 S 885.
California. People v. Easton, 148
Cal 50, 82 P 840; People v. Hall,
220 Cal 166, 30 P2d 23, 996; People
v. Madison, 3 Cal2d 668, 46 P2d
159; People v. Grant, 105 CalApp2d
347, 233 P2d 660 (DistCtofApp,
2ndDist, Division 2, Cal).
Colorado. Dockerty v. People, 96
Colo 338, 44 P2d 1013.
Florida. Blackwell v. State, 79
Fla 709, 86 S 224, 15 ALR 465.
Georgia. It is an expression of
opinion to tell the jury that "flight
unexplained is a circumstance point-
ing: to defendant's guilt." Kettles
v. State, 145 Ga 6, 88 SE 197.
Illinois. People v. Armstrong-, 299
III 349, 132 NE 547; People v. Mar-
chiando, 358 111 286, 193 NE 127.
Indiana. Collins v. State, 192 Ind
86, 131 NE 390.
Kansas. State v. Thomas, 58 Kan
805, 51 P 228.
Kentucky. Garman v. Common-
wealth, 183 Ky 455, 209 SW 528.
Louisiana. State v. Anderson,
121 La 366, 46 S 357.
Massachusetts. Commonwealth v.
Cline, 213 Mass 225, 100 NE 358.
Michigan. People v. Simon, 243
Mich 489, 220 NW 678.
Mississippi. Ransom v. State, 149
Miss 262, 115 S 208.
Missouri. State v. Gibbs (Mo),
186 SW 986; State v. Likens (Mo),
231 SW 578; State v. Duncan, 336
Mo 600, 80 SW2d 147.
Montana. An instruction is er-
roneous which assumes the commis-
sion of the crime. State v. Bonning,
60 Mont 362, 199 P 274, 25 ALR 879.
New Mexico. Territory v. Lucero,
16 NM 652, 120 P 304, 39 LRA
(N. S.) 58.
Ohio. Allison v. State, 12 OhApp
217, 32 OhCirApp 124; Edinger v.
State, 12 OhApp 362, 32 OhCirApp
529; Grille v. State, 9 OhCirCt 394,
6 OhCirDec 90; Zeltner v. State, 13
OhCirCt 417, 22 OhCirDec 102; Ma-
lotte v. State, 12 OLA 659.
Oregon. State v. Ching Lem, 91
Or 611, 176 P 590.
Texas. Kelley v. State, 80 TexCr
249, 190 SW 173.
Utah. State v. Fairclough, 86
Utah 326, 44 P2d 692.
Virginia. Jenkins v. Common-
wealth, 132 Va 692, 111 SE 101,
25 ALR 882.
Washington. State v. Leroy, 61
Wash 405, 112 P 635.
§ 67 INSTRUCTIONS — RULES GOVERNING 226
fendant did flee or attempted to flee.19 The mere fact that
the accused was arrested in another state does not justify the
giving of an instruction on the inference which may be drawn
from flight.20
Even if there is strong evidence of flight, it is not, in most
courts, a presumption of guilt, i.e., the jury must not be told
that they must infer guilt from flight unexplained.21 Appar-
ently, in a few states it is proper to instruct that a presumption
of guilt does arise from the fact of flight unexplained.22 How this
presumption relates to the presumption of innocence or the
state's burden of showing guilt beyond a reasonable doubt is
explained by one court that this presumption of guilt from
flight is never alone sufficient to show guilt beyond a reasonable
doubt.23 In these states, the jury must also be told that the
presumption from flight is rebuttable.24
If flight may be evidence of guilt, does it follow that sur-
rendering is evidence of innocence? Clearly not. The court
is not required to charge that the fact that the defendant
gave himself up tends to lessen incriminating circumstances.25
Nor should the court instruct that the fact that accused made
no effort to escape should be considered as evidence of his in-
§ 67. Confessions in criminal cases.
The court should instruct that confessions should be scanned
with caution since they must be voluntary and corroborated by
other evidence.
1 9 People v. Goodwin, 202 Cal 527, the Missouri court's position on the
261 P 1009. question in State v. Kyles, 247 Mo
20 State v. Evans, 138 Mo 116, 39 640', 153 SW 1047.
SW 462, 60 AmSt 549. New Jersey. State v. Harrington,
21 Hickory v. United States, 160 87 NJL 713, 94 A 623.
US 408, 40 LEd 474, 16 SupCt 327; 23 State v. Walker, 98 Mo 95, 9
Alberty v. United States, 162 US SW 646, 11 SW 1133.
499, 40 LEd 1051, 16 SupCt 864. 24 See cases in note 23, supra,, and
22 Iowa. Variation of the rule State v. Sparks (Mo), 195 SW 1031;
where flight occurred after the de- State v. Weissengoff, 89 WVa 279,
fendant was accused of the crime 109 SE 707 (technical flight).
and to avoid being arrested for its 25 Alabama. Cobb v. State, 115
commission. State v. Heatherton, Ala 18, 22 S 506.
60 la 175, 14 NW 230; State v. Florida. Thomas v. State, 47 Fla
Van Winkle, 80 la 15, 45 NW 388; 99, 36 S 161.
State v. Sorenson, 157 la 534, 138 Mississippi. Banks v. State (Miss),
NW 411. 145 S 104.
Missouri. See State v. Griffin, 87 Missouri. State v. Knowles, 185
Mo 608; State v. Walker, 98 Mo 95, Mo 141, 83 SW 1083.
9 SW 646, 11 SW 1133. 26 Reed v. State, 66 Neb 184, 92
And see comment with respect to NW 321.
227
SUBJECT-MATTER
The general rule is supported by the decisions.27 A volun-
tary confession is one made without physical coercion or in-
duced by fear of injury or hope of benefit. The trial judge,
as a preliminary question, determines whether a confession has
been made with that degree of freedom to justify its admission
in evidence. In case of doubt and of a conflict in the
evidence, he should submit the question to the jury, under
proper instructions; if it clearly appears that the confession
was induced by force, threats, or promises, the confession
should not be admitted. If the question is submitted to the
jury, they should be instructed to disregard the confession if
they find that it was not voluntarily made.28 So, if there is
no evidence tending to prove that the confession was not vol-
untarily made, it is not error to refuse to instruct that the con-
27 Federal. Fitter v. United
States, 169 CCA 507, 258 F 567
(confessions of accomplices).
Arkansas. Pearrow v. State, 146
Ark 201, 225 SW 308.
California. People v. Tibbs, 143
Cal 100, 76 P 904 (should be viewed
with caution).
Georgia. Benson v. State, 150 Ga
618, 104 SE 780 (rape) ; Bowden v.
State, 151 Ga 336, 106 SE 575;
Bradley v. State, 151 Ga 422, 107
SE 254; Davis v. State, 7 GaApp
680, 67 SE 839; Leverett v. State,
23 GaApp 141, 98 SE 115; Walker
v. State, 26 GaApp 70, 105 SE 717;
Plummer v. State, 27 GaApp 185,
108 SE 128.
A jury was sufficiently cautioned
not to consider the confession of
one defendant as against the others
by a charge that a confession by
any one or more of the defendants
"would only apply to the one making
it and woiild not inculpate any other
one of them so far as that particu-
lar confession is concerned." Nobles
v. State, 98 Ga 73, 26 SE 64, 38
LRA 577.
Iowa. State v. Jackson, 103 la
702, 73 NW 467 (viewed with cau-
tion).
Michigan. People v. Jackzo, 206
Mich 183, 172 NW 557; People v.
Biossat, 206 Mich 334, 172 NW 933.
Missouri. State v. McNeal (Mo),
237 SW 738.
Oregon. State v. Howard, 102 Or
431, 203 P 311.
Texas. Anderson v. State, 87 Tex
Cr 230, 220 SW 775.
28 Federal. Shaw v. United States,
103 CCA 494, 180 F 348; United
States v. Lydecker, 275 F 976.
Arkansas. Shuffin v. State, 122
Ark 606, 184 SW 454; Henry v.
State, 151 Ark 620, 237 SW 454.
California. See People v. Britton
(CalApp), 48 P2d 707.
It is error to instruct that the
fact that confession was obtained
by police officers "presents an im-
portant item" in considering- its vol-
untary character. People v. Hadley,
175 Cal 118, 165 P 442.
Iowa. State v. Bennett, 143 la
214, 121 NW 1021; State v. Crisman,
244 la 590, 57 NW2d 207.
Maine. State v. Priest, 117 Me
223, 103 A 359.
Massachusetts. Commonwealth v.
Makarewicz, 333 Mass 575, 132
NE2d 294.
Michigan. People v. Marthinson,
235 Mich 393, 209 NW 99.
Missouri. State v. Brooks, 220
Mo 74, 119 SW 353.
Nebraska. Heddendorf v. State,
85 Neb 747, 124 NW 150; Ringer
v. State, 114 Neb 404, 207 NW 928.
Pennsylvania. Commonwealth v.
Williams, 309 Pa 529, 164 A 532.
South Carolina. State v. Danelly,
116 SC 113, 107 SE 149, 14 ALR
1420.
167
INSTRUCTIONS — RULES GOVERNING
228
fession, to be admissible, must have been voluntary.29 Where
the objections to a purported confession were that it was ob-
tained by third-degree methods, it was improper for the court
to tell the jury that the nicety of details of procuring a con-
fession must be governed by circumstances and that circum-
stances create conditions that justify the methods of officers
by which confessions are obtained.30 And in those jurisdictions
denying the trial judge the right to comment upon the evidence,
it is error for him to give an instruction suggesting his belief
of the truth of a confession.3 '
The main rule does not apply in strictness to incriminatory
statements not amounting to a confession.32 It has been held,
however, that a charge on confessions was proper where there
was evidence that accused while under arrest expressed a desire
out of court to begin to serve his sentence.33
It is unnecessary to charge that there must be evidence in
corroboration of a confession, if the corpus delicti is otherwise
sufficiently established,34 or if the commission of the offense is
proved beyond a reasonable doubt by evidence independent of the
confession.35 Presumably, in this last rule, the appellate court
Texas. Bozeman v. State, 85 Tex
Cr 653, 215 SW 319; Lucas v. State,
88 TexCr 166, 225 SW 257; Grace
v. State, 90 TexCr 329, 234 SW 541;
Bridges v. State, 102 TexCr 462,
277 SW 1096; Williams v. State,
123 TexCr 199, 58 SW2d 125.
The accused is not entitled to a
charge on the competency of a con-
fession elicited from the state's
witnesses on cross-examination and
without objection by the state. Luna
v. State (TexCr), 47 SW 656.
Washing-ton. Where confession of
defendant was admitted as evidence
and there was no evidence that the
confession was not voluntary, a
charge that the jury could take the
whole of the confession as true or
any portion of it like any other
evidence in the case was proper.
State v. Barker, 56 Wash 510, 106 P
133.
Wisconsin, Tarasinski v. State,
146 Wis 508, 131 NW 889; Lang
v. State, 178 Wis 114, 189 NW 558,
24 ALR 690; Farino v. State, 203
Wis 374, 234 NW 366; Pollack v.
State, 215 Wis 200, 253 NW 560, 254
NW 471.
A sworn statement made to a
district attorney while under arrest
is not voluntary. Flamme v. State,
171 Wis 501, 177 NW 596. See
also Bianchi v. State, 169' Wis 75,
171 NW 639.
29Raarup v. United States, 23
F2d 547.
30 Commonwealth v. Brown, 309
Pa 515, 164 A 726, 86 ALR 892.
31 People v. Schraeberg, 347 111
392, 179 NE 829.
32Buckhanon v. State, 151 Ga
827, 108 SE 209; Waller v. State,
164 Ga 128, 138 SE 67; Bridges v.
State, 9 GaApp 235, 70 SE 968;
Phillips v. State, 27 GaApp 1, 107
SE 343; McCoy v. State, 32 GaApp
SO1, 122 SE 650; State v. Johnson
(MoApp), 236 SW 365.
33Abrams v. State, 121 Ga 170,
48 SE 965.
34 Abdon v. Commonwealth, 237
Ky 21, 34 SW2d 742; Herron v.
Commonwealth, 247 Ky 220, 56 SW2d
974; Crowley v. State, 92 TexCr
103, 242 SW 472.
35 Commonwealth v. Stites, 190
Ky 402, 227 SW 574; Dunbar v.
Commonwealth, 192 Ky 263, 232 SW
655.
229 SUBJECT-MATTER § 68
will determine if the commission of the crime has been proved
beyond a reasonable doubt. It is erroneous to charge that the
corpus delicti need not be proved beyond a reasonable doubt by
evidence independent of an alleged confession, but this instruc-
tion is not prejudicial if the corpus delicti is not questioned.36
No instructions on confessions are necessary where the ac-
cused admits commission of the offense but claims there was
justification.37 If the prosecution introduces an alleged confes-
sion containing exculpatory matter, the jury must be charged
to take the confession as true and that the exculpatory part
must be accepted unless disproved by the prosecution.38
§ 68. Credibility of witnesses — Interest of witnesses — Falsus in
lino, falsus in omnibus.
The court should lay down general rules of law for determin-
ing (1) the credibility of witnesses; "(2) and this imposes the
duty of pointing out that, where a witness has wilfully testified
falsely upon one material point, his entire evidence may be
rejected; (3) of directing attention to contradictions; (4) and of
explaining the effect of a witness' interest in the suit.
(1) The court should announce general rules of law for the
guidance of the jury in determining the credibility of witnesses.30
While it is the province of the jury to determine the ultimate
credit to be given a witness and while the trial judge should avoid
giving an instruction which implies a fixed opinion of his own
as to the weight to be attached to particular testimony, gen-
eral principles as to credibility may be laid down which will be
of assistance to the jury in arriving at a correct determination
of the issues.40 The court has the right to refer to the testi-
mony of a particular witness if it be done in such a manner as
neither to commend nor discredit.4 ' The court may charge that,
in determining weight and credibility, the jury should take into
consideration the character of the witness.42 The court is au-
36 People v. Moor, 355 111 393, 189 4 ! Reek v. Eeek, 184 Minn 532, 239
NE 318. NW 599.
37 Harris v. State, 152 Ga 193, 42 Arizona. The court may in-
108 SE 777. struct the jury to consider the fact
38 Robidoux v. State, 116 TexCr that witnesses who testified in liquor
432, 34 SW2d 863; Roberts v. State, prosecution were detectives and
117 TexCr 418, 35 SW2d 175; Yar- bought liquor to entrap defendant,
brough v. State, 125 TexCr 304, 67 Bauragartner v. State, 20 Ariz 157,
SW2d 612. See Hargrove v. United 178 P 30.
States, 67 P2d 820, 90 ALR 1276. Missouri. Harrison v. Lakenan,
39 Heddle v. City Elec. Ry. Co., 189 Mo 581, 88 SW 53.
112 Mich 547, 70 NW 1096. Pennsylvania. An instruction was
40 Heddle v. City Elec. By, Co., 112 held not erroneous wherein the jury
Mich 547, 70 NW 1096. were told that while the criminal
§68
INSTRUCTIONS — RULES GOVERNING
230
thorized to say to the jury that they may believe or disbelieve
all or any part of the testimony of the witnesses.43 So where
the jury are instructed that if the reputation of a certain wit-
ness for truth and veracity is bad, such fact may be considered,
there can be no valid objection provided the instruction is
predicated upon the evidence in the case.44 If there is evidence
in a case on which to base it, there should be an instruction
that unless the testimony of a successfully impeached witness
is corroborated by other credible evidence the jury should dis-
regard it.45 But, while the jury have the undoubted right to
observe a witness upon the stand and to take into account his
appearance and demeanor, as affecting credibility, the court
should refrain from instructing them that it is their duty to
do so.46 The court may charge the jury in their consideration
of conflicting testimony, to take note of the reasonableness or
unreasonableness of the statements, the interest of the witnesses,
if any, and all the circumstances in evidence.47
(2) Where a witness has knowingly and wilfully testified
falsely concerning a matter material to the issue, the court
should instruct that the jury may disregard his entire testi-
mony,48 except where corroborated by other credible testi-
records of the plaintiffs affected
their credibility as witnesses, it did
not deprive them of the right to
contract, that being one of the in-
gredients of the case. Weiss v. Lon-
don Guarantee & Ace. Co., Ltd., 285
Pa 251, 132 A 120.
43 Union Bus Station v. Etosh, 48
OhApp 161, 1 OhO 151, 192 NE 743.
44 LaFevre v. DuBrule, 71 IllApp
263.
An instruction that a witness
might be impeached by proving
statements made by him on some
former occasion contrary to those
made by him on the witness stand
may be given. Egan v. Moellen-
brook, 322 111 426, 153 NE 600.
45 Welton v. Iowa State Highway
Comm., 211 la 625, 233 NW 876.
46 Heenan v. Howard, 81 IllApp
629.
47 Cole v. P. Mayer Boot & Shoe
Co., 221 MoApp 1250, 300 SW 321.
48 Alabama. Steele-Smith Dry
Goods Co. v. Blythe, 208 Ala 288,
94 S 281; Tennessee Coal, Iron &
Ry. Co. v. Wilhite, 211 Ala 195, 100
S 135; Aycock v. Schwartzchild &
Sulzsberger Co., 4 AlaApp 610, 58
S 811; Taylor v. State, 17 AlaApp
28, 81 S 364.
Arkansas. Hughes v. Bartholo-
mew, 164 Ark 152, 261 SW 284.
California. Spear v. United Rail-
roads of San Francisco, 16 CalApp
637, 117 P 956; Belm v. Patrick, 109
CalApp 599, 293 P 847.
Connecticut. Craney v. Donovan,
92 Conn 236, 102 A 640, LEA 1918C,
96.
Georgia. Molho v. Johnson, 25
GaApp 719, 104 SE 577.
Missouri. Hartpence v. Rogers,
143 Mo 623, 45 SW 650; Cohen v.
St. Louis Merchants, Bridge Ter-
minal Ry. Co., 193 MoApp 69, 181
SW 1080; Poague v. Mallory, 208
MoApp 395, 235 SW 491 (must be
wilful and with knowledge) ; Myers
v. Independence (Mo), 189 SW 816.
The giving or refusing of an in-
struction that the jury may disre-
gard the entire testimony of wit-
nesses whom they believe to have
wilfully testified falsely rests large-
ly in the discretion of the trial
court, and where the evidence is
231 SUBJECT-MATTER § 68
mony.49 Where the testimony of a witness is of such a character
that it may fairly induce the belief that he has wilfully testified
falsely on a material matter, the jury should be told of their
right to reject the entire evidence of the witness and it is error
to refuse the instruction.50 But before an instruction of this
kind may be given the court must determine whether the facts
and circumstances in evidence afford a sufficient basis for the
application of the rule.51 An instruction upon this basis is
faulty if it fails to inform the jury that the facts as to which
they believe the witness has wilfully testified falsely must have
been material.52
(3) Where the evidence is contradictory, the court should
direct attention to this fact as bearing- on credibility.53 Thus
where the testimony of a witness stands alone, with no corrob-
orating circumstance in support of it, and is contradicted by the
testimony of several other witnesses, the jury's attention should
be directed to the situation and credibility of the witness.54
So where the testimony of a witness is in direct contradiction
to that given by him on a former trial on the same point, an
instruction should not be refused which tells the jury that if
they believe the evidence as so given in the former action, then
they must discredit the contradictory statements made in the
sharply conflicting, the giving of Heidemann v. Kleine (MoApp), 210
such an instruction is not improper. SW 913.
Sampson v. St. Louis & S. P. R. West Virginia. See Siever v.
Co., 156 MoApp 419, 138 SW 98. Coffman, 80 WVa 420, 92 SE 669.
Ohio. Dye v. Scott, 35 OhSt 194, s°Peckham v. Lindeil Glass Co.,
35 AmRep 604; Edinger v. State, 12 7 MoApp 563.
OhApp 362, 32 OhCirApp 529. 5 ' Wyatt v. Central Coal & Coke
South Dakota. State v. Goodnow, Co. (MoApp), 209 SW 585; Mil-
41 SD 391, 170 NW 661. ton v. Holtzman (MoApp), 216 SW
49 Georgia. Payne v. Reese, 28 828 (instruction discretionary with
GaApp 180, 110- SE 740. trial court) ; Pumorlo v. Merrill, 125
Idaho. Baird v. Gibberd, 32 Idaho Wis 102, 103 NW 464.
796, 189 P 56. 52 Larsen v. Webb, 332 Mo 370,
Illinois. Stewart v. Clark, 194 58 SW2d 967, 90 ALR 67.
IllApp 2; Sherburne v. McGuire, 197 53 Where a written statement by
IllApp 486; Osberg v. Cudahy Pack- plaintiff's chief witness is introduced
ing Co., 198 IllApp 551; Monk v. contradicting his testimony, the duty
Casey ville R. Co., 202 IllApp 641; of the court is limited to calling the
Marshall v. Illinois Cent. R. Co., 207 attention of the jury to the discrep-
111 App 619. ancy, and cautioning them as to
Indiana. Selz, Schwab & Co. v. their duty in passing on his credi-
Gullion, 187 Ind 328, 119 NE 209. bility. Danko v. Pittsburgh Rys.
Missouri. Bryant v. Kansas City Co., 230 Pa 295, 79 A 511.
Rys. Co., 286 Mo 342, 228 SW 472; 64 Fineburg v. Second & Third
Guidewell v. Patterson, 207 MoApp Streets Passenger Ry. Co., 182 Pa
437, 229 SW 225; Kansas City v. 97, 37 A 925.
Boruff, 295 Mo 28, 243 SW 167;
§ 68 INSTRUCTIONS — RULES GOVERNING 232
later suit.55 But the court need not instruct on the matter of
credibility where statements are not necessarily in conflict, as
where a plaintiff testifies that a railway switch was defective,
and, on cross-examination, says he made only a casual observa-
tion of it.56
(4) The court should, if requested, point out the effect of a
witness' interest in the suit, as bearing on the question of his
credibility.67 The law recognizes tests and methods to be applied
to testimony in enabling the jury to determine credibility and
one of such tests is that they have the right to consider the inter-
est of a witness and his manner of testifying.58 And the com-
mon law rule that the testimony of an interested party is to be
weighed in the light of such interest is not abrogated by a federal
statute providing that no witness shall be excluded because he is
a party to or interested in the issue tried. The jury's attention
should be called to the party's interest and it is then for the
jury to say to what extent, if at all, the credibility of the witness
is affected.59 For it is not only proper, but it is the duty of
the jury to consider a party's interest, as well as every other
fact and circumstance which may reasonably bear upon weight
and credibility.60 Hence an instruction is correct which informs
the jury that in passing upon the testimony of any witness
they "have a right to take into consideration the interest any
such witness may have in the result of this trial and the man-
ner of testifying." And it is not sufficient to tell the jury that,
in determining credibility, they may use their common experi-
ence and common sense.61 However open the practice may be
55 O'Leary v. Buffalo Union Fur- Nebraska. Morfeld v. Weidner,
nace Co., 100 AppDiv 136, 91 NYS 99 Neb 49, 154 NW 860.
579. New York. An employee is an
56 Logan v. Metropolitan Street Interested witness when his master
Ry. Co., 183 Mo 582, 82 SW 126. is sued for the negligent act of the
57 Alabama. It is not improper to employee. Harris v. Fifth Ave.
charge in an action for injuries that Coach Co., 132 NYS 743.
the jury might consider friendship Wisconsin. Vogel v. Herzfeld-
as bearing on the credibility of wit- Phillipson Co., 148 Wis 573, 134 NW
nesses, together with the contra- 141.
dictory statements made by plain- 5* Lancashire Ins. Co. v. Stanley,
tiff, if any, as bearing on the weight 70 Ark 1, 62 SW 66.
to be given his evidence. Birming- 59 Denver City Tramway Co. v.
ham By., Light & Power Co. v. Norton, 73 CCA 1, 141 F 599.
Glenn, 179 Ala 263, 60- S 111. 6O Kavanaugh v. Wausau, 120 Wis
Massachusetts. Commonwealth v. 611, 98 NW 550.
Harris, 232 Mass 588, 122 NE 749. 6I Lancashire Ins. Co. v. Stanley,
Missouri State v. Garrett, 276 70 Ark 1, 62 SW 66. See also Chi-
Mo 302, 207 SW 784, cago & G. T. By, Co. v. Spurney,
Montana. Murray v. Butte, 51 69 IllApp 549,
Mont 258, 151 P 1051,
233
SUBJECT-MATTER
69
to criticism, yet the court should not instruct that it is the
ethical duty of an attorney to retire from the trial of a case in
which he appears as a witness.62
§ 69. Credibility of witnesses in criminal cases — Interest of wit-
nesses— Falsus in uno> f alsus in omnibus.
The court in criminal prosecutions should set forth in its
instructions rules of law for the guidance of the jury in de-
termining the credibility to be given to the testimony of the
witnesses.
Besides guidance rules on credibility generally,63 such rules
should be given as to the accused,64 the complaining witness,65
interested witnesses generally,66 impeached witnesses,67 ac-
62 Fletcher v. Ketcham, 160 la
364, 141 NW 916.
63 California. People v. Bernal,
40 CalApp 358, 180 P 825.
Georgia. Grant v. State, 122 Ga
740, 50 SE 946.
In Gibson v. State, 42 GaApp 285,
155 SE 922, it was held proper for
the trial court to say to the jury
that witnesses are presumed to tell
the truth unless they are impeached
or discredited in some manner.
Illinois. The court may tell the
jury that they have a right to con-
sider whether the testimony of the
accused has been corroborated or
contradicted by other credible evi-
dence. People v. Stockton, 355 111
405, 189 NE 281.
Iowa. State v. Hatters, 184 la
878, 169 NW 113.
Missouri. State v. Parmenter, 278
Mo 532, 213 SW 439.
New Mexico. State v. Moss, 24
NM 59, 172 P 199.
Ohio. Edinger v. State, 12 OhApp
362, 32 OhCtApp 529.
West Virginia. State v. Parsons,
90 WVa 307, 110 SE 698.
64 Federal. Caminetti v. United
States, 242 US 470, 61 LEd 442, 37
SupCt 192, LRA 1917F 502, AnnCas
1917B, 1168.
Alabama. Weaver v. State, 1 Ala
App 48, 55 S 956.
Georgia. Buchanan v. State, 35
GaApp 383, 133 SE 311.
North Dakota. State v. Tough, 12
ND 425, 96 NW 1025.
Oregon. State v. Porter, 32 Or
135, 49 P 964.
Tennessee. Cooper v. State, 123
Tenn 37, 138 SW 826.
63 California. People v. Fraysier,
36 CalApp 579, 172 P 1126 (rape);
People v. Williams, 52 CalApp 609,
199 P 56. But see People v. An-
thony, 185 Cal 152, 96 P 47.
Georgia. Walker v. State, 151 Ga
341, 106 SE 547.
Missouri. State v. Finley, 278 Mo
474, 213 SW 463.
Utah. State v. Scott, 55 Utah 553,
188 P 860 (rape).
Wisconsin. Abaly v. State, 163
Wis 609, 158 NW 308.
66 Alabama. Weaver v. State, 1
AlaApp 48, 55 S 956.
Illinois. People v. Lalor, 290 111
234, 124 NE 866.
Louisiana. State v. Elby, 145 La
1019, 83 S 227.
Nebraska. Chezem v. State, 56
Neb 496, 76 NW 1056.
Virginia. Horton v. Common-
wealth, 99 Va 848, 38 SE 184.
67 Walker v. State, 137 Ga 398,
73 SE 368; Landers v. State, 149
Ga 482, 100 SE 569; Hawkins v.
State, 20 GaApp 179, 92 SE 958;
Reeves v. State, 22 GaApp 628, 97
SE 115; Williams v. State, 25 GaApp
193, 102 SE 875; Barnes v. State, 25
GaApp 555, 103 SE 857; Lundy v.
State, 28 GaApp 70, 110 SE 330;
Smith v. State, 14 OklCr 348, 171
P 341.
69
INSTRUCTIONS — RULES GOVERNING
234
complices,63 co-conspirators,69 detectives,70 experts,71 convicts
and ex-convicts,72 and witnesses whose testimony is wilfully and
knowingly false in part.73
The jury are the sole judges of the credibility of witnesses
and the weight that should be given to their testimony and it is
68 Federal. Aliens unlawfully
brought into the United States are
not accomplices of those who bring
them in violation of law, and when
they testify against defendant
charged with such smuggling, the
court is not required to charge as
to accomplice testimony. Emmanuel
v. United States, 24 F2d 905.
Alabama. Dodd v. State, 24 Ala
App 36, 160 S 267.
Georgia. Suddeth v. State, 112
Ga 407, 37 SE 747; Melton v. State,
116 Ga 582, 42 SE 708.
Kentucky. Walker v. Common-
wealth, 257 Ky 613, 78 SW2d 754.
Unless one is an accessory before
the act, or an aider or abettor, he
does not become an accomplice mere-
ly because he is an eyewitness to a
homicide. Marcum v. Common-
wealth, 223 Ky 831, 4 SW2d 728.
Missouri. State v. Meysenburg,
171 Mo 1, 71 SW 229.
Pennsylvania. Commonwealth v.
Bruno, 316 Pa 394, 175 A 518.
Texas. Wilson v. State, 41 TexCr
115, 51 SW 916; Collier v. State, 108
TexCr 171, 300 SW 54; West v.
State, 117 TexCr 340, 37 SW2d 160.
An instruction is sufficient which
defines "accomplices" as all persons
who participate in an offense as
principals and "principals" as all
persons acting together in the com-
mission of an offense. Hilton v.
State, 41 TexCr 190, 53 SW 113.
In the absence of other connecting
evidence, a witness who was merely
riding in car with one later accused
of unlawfully transporting liquor
was not an accomplice. McNeill v.
State, 110 TexCr 499, 7 SW2d 559,
9 SW2d 333.
e9 Grace v. State, 49 GaApp 306,
175 SE 384; Gelosi v. State, 215
Wis 649, 255 NW 893.
70 Federal. Rossi v. United States,
9 F2d 362 (instruction held too
broad as to the weight of the testi-
mony of detectives).
In Latses v. United States, 45
F2d 949, it was held not error for
the court to fail to instruct that
the testimony of federal prohibition
agents should be received with cau-
tion in a prosecution under the pro-
hibition laws.
Alabama. Layton v. State, 22
AlaApp 523, 117 S 610.
Kansas. State v. Shew, 8 KanApp
679, 57 P 137.
Washington. See State v. Nor-
man, 161 Wash 525, 297 P 216 (an
instruction held proper as to the
testimony of special investigators
employed by the federal govern-
ment) .
7 ! California. People v. Lytle, 34
CalApp 360, 167 P 552.
Massachusetts. Commonwealth v.
Soaris, 275 Mass 291, 175 NE 491.
The court cannot charge as a mat-
ter of law that opinion evidence
must be received with caution, and
that where there is an honest dif-
ference of opinion among qualified
experts the jury ought not to con-
vict. Commonwealth v. Howard,
205 Mass 128, 91 NE 397.
Missouri. State v. Mundy (Mo),
76 SW2d 1088.
72 Iowa. State v. Gilliland, 187
la 794, 174 NW 496.
Nebraska. Under a Nebraska
statute a prior conviction of a felony
may be proved for the purpose of
affecting the credibility of a witness
and the court may properly instruct
the jury as to the purpose of such
evidence. Keating v. State, 67 Neb
560, 93 NW 980.
New Jersey. State v. Sandt, 95
NJL 49, 111 A 651.
73 Hawaii. Territory v. Buick,
27 Hawaii 28.
Louisiana. State v. Allen, 11 La
154, 35 S 495.
235
SUBJECT-MATTER
69
proper so to charge the jury.74 But this does not forbid in-
structions as to the tests to be applied to the testimony by the
jury. The court may charge that the jury may give consideration
to the appearance and demeanor of the witnesses, their manner
of testifying, their apparent candor and fairness, their bias or
prejudice, their apparent intelligence, their interest in the result,
and all other surrounding circumstances.75 The court should not
tell the jury to regard and determine the credibility of the wit-
nesses "as reasonable men," as there is no guide thus given for
the jury to follow.76
The court should instruct that the accused is a competent
witness in his own behalf and that his testimony is entitled to
whatever weight the jury may give it.77 The court should not
Nebraska. Joseph v. State, 128
Neb 824, 260 NW 803.
South Dakota. State v. Western,
47 SD 328, 198 NW 826.
74 Alabama. Brown v. State, 142
Ala 287, 38 S 268.
Indiana. Mclntosh v. State, 151
Ind 251, 51 NE 354.
Iowa. An instruction is proper to
reject the evidence of witnesses if
their testimony is not believed. State
v. Minor, 106 la 642, 77 NW 330.
Missouri. State v. Maupin, 196
Mo 164, 93 SW 379.
Ohio. Edinger v. State, 12 OhApp
362, 32 OhCtApp 529.
West Virginia. State v. Lutz, 85
WVa 330, 101 SE 434; State v. Long,
88 Wya 669, 108 SE 279.
It is not error to instruct the
jury that they are the sole judges
of the credibility of the witnesses
and they have the right to believe
or not any witness who has testified
where the instruction is modified
so as to tell them that they cannot
arbitrarily disregard the testimony
of a witness unless they believe it
to be untrue. State v. Legg, 59
WVa 315, 53 SE 545, 3 LRA (N. S.)
1152.
The court may not charge that the
jury may arbitrarily believe or dis-
believe any witness. State v. Weis-
sengoff, 89 WVa 279, 109 SE 707.
75 Alabama. Roberson v. State,
24 AlaApp 244, 133 S 744.
California. People v. Bernal, 40
CalApp 358, 180 P 825.
Florida. Tucker v. State, 64 Fla
518, 59 S 941.
Georgia. Best v. State, 26 GaApp
671, 107 SE 266.
Illinois. People v. Snyder, 279 111
435, 117 NE 119; People v. Lalor,
290 111 234, 124 NE 866.
Oregon. State v. Fronhofer, 134
Or 378, 293 P 921.
Washington. State v. Hoshor, 26
Wash 643, 67 P 386.
76 People v. McGeoghegan, 325
111 337, 156 NE 378.
77 California. People v. Bernal,
40 CalApp 358, 180 P 825.
Florida. Prevatt v. State, 82 Fla
284, 89> S 807.
Illinois. People v. Duzan, 272 111
478. 112 NE 315; People v. Lalor,
290 111 234, 123 NE 866 (corrobora-
tion by credible evidence essential).
Mississippi. MeVay v. State
(Miss), 26 S 947.
Missouri. State v. Fredericks, 136
Mo 51, 37 SW 832; State v. Martin,
230 Mo 680, 132 SW 595; State v.
Kocian (Mo), 208 SW 44.
An accused is not entitled to an
instruction on his evidence where
it was simulated and at variance
with the physical facts and the
testimony of all the witnesses. State
v. Pollard, 139 Mo 220, 40 SW 949.
Oklahoma. Shears v. State, 20
OklCr 193, 201 P 816.
169
INSTRUCTIONS — RULES GOVERNING
236
disparage the testimony of the accused/8 but attention may be
directed, however, to his interest in the result of the case.79 It
is improper, however, for the court to direct the jury that they
"must/' rather than that they "may/5 weigh the accused's testi-
mony in the light of his interest in the outcome of the trial.80
It has been held proper for the trial court to tell the jury that
the testimony of the accused is to be considered in the same
manner as that of any other witness in the case.8 '
In Georgia the accused is given the right to make a state-
ment in his own defense not under oath, and this is to be given
what weight and credit the jury may deem it entitled to. The
jury may believe this statement in preference to the sworn
testimony or disregard it entirely. The instruction on this
7S Federal. McCallum v. United
States, 159 CCA 245, 247 F 27.
Arkansas. The practice of giving
a separate charge on credibility of
accused is not commended. Davis v.
State, 150 Ark 500, 234 SW 482.
Florida. Blanton v. State, 52 Fla
12, 41 S 789.
Georgia. It is improper to use
language calculated to impress the
jury that they ought to be cautious
in giving credit to what was testified
to by accused. Alexander v. State,
114 Ga 266, 40' SE 231.
Illinois. People v. Arnold, 248 111
169, 93 NE 786; People v. Munday,
280 111 32, 117 NE 286; People v.
Fitzgerald, 297 111 264, 130 NE 720.
Massachusetts. Commonwealth v.
Howard, 205 Mass 128, 91 NE 397.
Michigan. People v. Miller, 217
Mich 635, 187 NW 366.
Minnesota. State v. Dallas, 145
Minn 92, 176 NW 491.
Missouri. State v. Willner (Mo),
199 SW 126.
New York. People v. Viscio, 241
AppDiv 499, 272 NYS 213.
Oklahoma. Bridges v. United
States, 3 OklCr 64, 104 P 370; Man-
ning v. State, 5 OklCr 532, 115 P
612 (defendant's testimony singled),
South Carolina. It has been held
not erroneous for the court to say
to the jury that they may, but need
not necessarily, infer the guilt of
the accused if they find that he had
uttered false exculpatory statements.
State v. Pittman, 137 SC 75, 134 SE
514.
79 Federal. Foster v. United
States, 167 CCA 423, 256 F 207;
Schulze v. United States, 170 CCA
257, 259 F 189; Belvin v. United
States, 171 CCA 281, 260 F 455;
United States v. Freedman, 268 F
655.
Alabama. Bell v. State, 170 Ala
16, 54 S 116; Scruggs v. State, 224
Ala 328, 140 S 405.
Arkansas. Simmons v. State, 124
Ark 566, 187 SW 646.
Illinois. People v. Maciejewski,
294 111 390, 128 NE 489.
Iowa. State v. Bird, 207 la 212,
220 NW 110.
Michigan. People v. Hahn, 214
Mich 419, 183 NW 43.
Missouri. State v. Boyer, 232 Mo
267, 134 SW 542.
Nebraska. Darwin v. State, 107
Neb 177, 185 NW 312.
New Jersey. State v. Randall, 95
NJL 452, 113 A 231.
North Carolina. State v. Love-
lace, 178 NC 762, 101 SE 380; State
v. Deal, 207 NC 448, 177 SE 332.
Tennessee. Cooper v. State, 123
Tenn 37, 138 SW 826.
Washington. In State v. Snyder,
146 Wash 391, 263. P 180, such an
instruction was held unnecessary
and error.
80 Kyle v. State, 21 AlaApp 256,
107 S 222.
8 1 People v. Jonicek, 342 111 414,
174 NE 520.
237
SUBJECT-MATTER
§69
subject is sufficient if substantially in the language of the
statute. The charge should not disparage the statement.82 It
is not error for the court to inform the jury in the instructions
that when the accused makes such a statement he incurs no
penalty for failure to speak the truth.83
On the question of the credibility of witnesses the court may
direct the jury to consider their relationship to the accused,84
and the fact that they are paid detectives, if that is a fact shown
by the evidence.85 It has been held that the general rule re-
quiring cautionary instructions as to the testimony of detectives
and informers does not apply to public officials acting in their
official capacities.86 An instruction has been approved which
informed the jury that if the bad reputation of a witness for
truth and veracity had been established by the evidence, they
were entitled to disregard all of his testimony unless it was cor-
roborated by other credible evidence.87
An instruction on the effect of impeachment may be given
only where evidence tending to impeach witnesses in some of
the modes prescribed by law has been introduced.88
82 Chancey v. State, 145 Ga 12,
88 SE 205; Lucas v. State, 146 Ga
315, 91 SE 72; Mitchell v. State,
147 Ga 468, 94 SE 570; Wilder v.
State, 148 Ga 270, 96 SE 325; Grant
v. State, 152 Ga 252, 109 SE 502;
Merritt v. State, 152 Ga 405, 110
SE 160; Bass v. State, 152 Ga 415,
110 SE 237; Stanford v. State, 153
Ga 219, 112 SE 130; Hill v. State,
17 GaApp 294, 86 SE 657; Black v.
State, 17 GaApp 294, 86 SE 659;
Linder v. State, 17 GaApp 310, 86
SE 741; Allen v. State, 18 GaApp
1, 88 SE 100; Dunn v. State, 18 Ga
App 95, 89 SE 170; Harris v. State,
19 GaApp 741, 92 SE 224; McLane
v. State, 20 GaApp 825, 93 SE 558;
Welch v. State, 26 GaApp 201, 105
SE 647; Causey v. State, 26 GaApp
632, 107 SE 68; Miller v. State, 26
GaApp 642, 107 SE 64; Harrison v.
State, 28 GaApp 554, 112 SE 293;
Stokes v. State, 28 GaApp 555, 112
SE 293; Norxnan v. State, 28 GaApp
561, 112 SE 293; Hulin v. State, 28
GaApp 562, 112 SE 294.
83 Henderson v. State, 50 GaApp
16, 176 SE 811.
84 Indiana. Keesier v. State, 154
Ind 242, 56 NE 232.
Missouri. State v. Napper, 141
Mo 401, 42 SW 957.
Nebraska. Van Buren v. State,
63 Neb 453, 88 NW 671.
North Carolina. State v. Apple,
121 NC 584, 28 SE 469.
85 California. People v. Vuyacich,
57 CalApp 233, 206 P 1031.
District of Columbia. Post-office
inspectors are not paid detectives
in the sense of the principle that
the jury should scrutinize the testi-
mony of such detectives. Lorenz
v. United States, 24 AppDC 337.
Georgia. See also McWhorter v.
State, 22 GaApp 251, 95 SE 1013.
Minnesota. State v. Overman, 152
Minn 431, 189 NW 444.
Missouri. State v. Fullerton, 90
MoApp 411.
Nebraska. Sandage v. State, 61
Neb 240, 85 NW 35, 87 AmSt 457.
North Carolina. State v. Boyn-
ton, 155 NC 456, 71 SE 341.
86 Allen v. State, 120 Neb 889,
235 NW 85.
87 State v. Eoblin, 160 Wash 529,
295 P 745.
88 Alabama. Bennett v. State,
160 Ala 25, 49 S 296 (instruction
on contradictory statements) ; Leath-
§69
INSTRUCTIONS — BULBS GOVERNING
238
The jury should be instructed that the evidence of an ac-
complice must be received with great caution unless corroborated
by the evidence of others,89 and that one accomplice cannot
erwood v. State, 17 AlaApp 498, 85
S 875.
It is proper to charge that if any
witness has been impeached his
entire testimony may be disregarded
unless corroborated by other testi-
mony not so impeached. Church-
well v. State, 117 Ala 124, 23 S 72.
Georgia. Freeman v. State, 112
Ga 48, 37 SE 172; Riley v. State,
153 Ga 182, 111 SE 729.
The credibility of a witness is for
the jury and it is not error to in-
struct that a witness may be be-
lieved though impeached for gen-
eral bad character. Ector v. State,
120 Ga 543, 48 SE 315.
Kentucky. Delph v. Common-
wealth, 255 Ky 259, 72 SW2d 1027.
S3 Federal. Nee v. United States,
267 F 84; United States v. Freed-
man, 268 F 655; Freedman v. United
States, 274 F 603; Lett v. United
States, 15 F2d 686.
Arkansas. Griffin v. State, 141
Ark 43, 216 SW 34.
California. The testimony of an
accomplice is corroborated "if it
tends to connect the defendants with
the commission of the offense,
though of itself, standing alone, it
would be entitled to but little
weight." People v. Blunkall, 31 Cal
App 778, 161 P 997.
Florida. Peterson v. State, 95 Fla
925, 117 S 227.
Georgia. Almand v. State, 149
Ga 182, 99 SE 795; Callaway v.
State, 151 Ga 342, 106 SE 577;
Langston v. State, 153 Ga 127, 111
SE 561.
Illinois. People v. Sapp, 282 111
51, 118 NE 416.
Kentucky. Nicoll v. Common-
wealth, 169 Ky 491, 184 SW 386;
Jack v. Commonwealth, 220 Ky 640,
295 SW 983; Williams v. Common-
wealth, 257 Ky 175, 77 SW2d 609;
Smith v. Commonwealth, 257 Ky
669, 79 SW2d 20; Commonwealth v.
Compton, 259 Ky 565, 82 SW2d 813.
Louisiana. State v. Hughes, 141
La 578, 75 S 416.
Massachusetts. Commonwealth v.
Leventhal, 236 Mass 516, 128 NE
864.
Minnesota. State v. Price, 135
Minn 159, 160 NW 677; State v.
Dunn, 140 Minn 308, 168 NW 2;
State v. Smith, 144 Minn 348, 175
NW 689.
A witness is not necessarily an
accomplice because he is under in-
dictment for same offense as defend-
ant. State v. Price, 135 Minn 159,
160 NW 677.
Missouri. State v. Black, 143 Mo
166, 44 SW 340.
Nebraska. Dyson v. State, 107
Neb 774, 186 NW 984.
New Jersey. State v. S chuck, 96
NJL 154, 114 A 562.
New Mexico. See State v. Foster,
38 NM 540, 37 P2d 541, 95 ALR
1247.
Oklahoma. Souther v. State, 12
OklCr 195, 153 P 293; McKinney v.
State, 20 OklCr 134, 201 P 673;
Hewett v. State, 38 OklCr 105, 259
P 144.
Corroboration must connect de-
fendant with commission of the of-
fense. Moore v. State, 14 OklCr
292, 170 P 519.
Texas. Crenshaw v. State, 48
TexCr 77, 85 SW 1147; Bagley v.
State, 77 TexCr 539, 179 SW 1167;
Self v. State, 80 TexCr 76, 188 SW
978 (seduction); Hollingsworth v.
State, 80 TexCr 299, 189 SW 488;
Stiles v. State, 89 TexCr 603, 232
SW 805; Newton v. State, 91 TexCr
335, 238 SW 649.
Refusal of such instruction is
proper where witness is not shown
to be an accomplice. Plachy v.
State, 91 TexCr 405, 239 SW 979.
Utah. State v. Elmer, 49 Utah 6,
161 P 167.
Vermont. State v. Montifoire, 95
Vt 508, 116 A 77.
239
SUBJECT-MATTER
§69
corroborate another.90 In the federal courts the cautionary in-
struction with respect to the character of testimony of an
accomplice is a matter within the discretion of the trial court,
and the charge may be omitted if the proof of guilt seems plain
and clear.91 This is the better practice but it is believed that
there is no absolute rule of law that would prevent conviction
on the uncorroborated testimony of the accomplice if believed
by the jury.92 The question of the sufficiency of the corrobora-
tion is for the jury.93 It is error to tell the jury that a showing
of circumstances sufficient to convince the jury that an accom-
plice has told the truth is sufficient to corroborate the ac-
complice's testimony.94 Whether the witness is an accomplice
is a question of law for the court to decide.95
On the separate trial of one defendant the court may instruct
that the jury are not concerned with the guilt or innocence of
codefendants not on trial.96 So, where certain ones charged with
conspiracy had confessed after their arrest, the court, in the
trial of the defendants, should have instructed that the fact of
the confessions of the others was not evidence against the de-
fendants on trial.97
The rule is a rule of practice and
not a rule of law and failure to
comply with it is not error. State
v. Hier, 78 Vt 488, 63 A 877.
Washington. State v. Simpson,
119 Wash 653, 206 P 561.
Wyoming. The question of whether
a witness was an accomplice is
properly submitted to the jury by
an instruction leaving to the jury
to determine whether any witness
was an accomplice and defining an
accomplice. Clay v. State, 15 Wyo
42, 86 P 17, 544.
90 Lightfoot v. State, 128 TexCr
281, 80 SW2d 984.
9 « United States v. Becker, 62
F2d 1007.
92 Federal. McGinniss v. United
States, 167 CCA 651, 256 P 621;
Reeder v. United States, 262 F 36;
Freed v. United States, 49 AppDC
392, 266 F 1012.
Refusal of such instruction is
proper where accomplice though
called by the government testified
in favor of defendant. Bosselman
v. United States, 152 CCA 132, 239
F 82.
California. See People v. Haack,
86 CalApp 390, 260 P 913.
Massachusetts. Commonwealth v.
Leventhal, 236 Mass 516, 128 NE
864.
Missouri. State v. GMazebrook
(Mo), 242 SW 928.
New Jersey, State v. Bove, 98
NJL 350, 116 A 766.
South Carolina. State v. Johnson,
119 SC 55, 110 SE 460.
Texas. Chandler v. State, 89 Tex
Cr 599, 232 SW 337.
93 Read v. State, 195 Ala 671, 71
S 96; Sealey v. State, 120 TexCr
260, 47 SW2d 295.
94 Wilson v. State, 117 TexCr 63,
36 SW2d 733.
95 Jolliffee v. State, 21 OklCr 278,
207 P 454.
96 Bates v. State, 18 GaApp 718,
90 SE 481. See also Dedge v.
State, 153 Ga 176, 111 SE 547; Size-
more v. Commonwealth, 195 Ky 621,
242 SW 842.
97 Graham v. United States, 15
F2d 740.
§69
INSTRUCTIONS — KULES GOVERNING
240
Instructions that if the jury believe a witness has wilfully
sworn falsely to any material fact they are at liberty to disre-
gard his entire testimony except as corroborated by other credi-
ble evidence or by facts proved on the trial are also proper.98
If a court gives a falsus in uno, falsus in omnibus instruction,
other instructions should be given defining the material issues, so
as not to throw the burden on the jury of deciding what are and
what are not material issues of fact." It has been held error to
give such an instruction from which the element "wilfully and
knowingly" has been omitted, f although another such instruction
has been approved in which the word "knowingly" was omitted
and the word "wilfully" used.2 The giving of this form of in-
98 Federal. Shea v. United States,
171 CCA 533, 260 F 807; Henry v.
United States, 50 AppDC 366, 273
F 330, cert. den. in 257 US 640,
66 LEd 411, 42 SupCt 51.
Alabama. Reynolds v. State, 196
Ala 586, 72 S 20; Ellis v. State, 15
AlaApp 99, 72 S 578; Taylor v.
State, 17 AlaApp 28, 81 S 364;
Montgomery v. State, 17 AlaApp
469, 86 S 132 (essential that false
testimony should have been wilfully
given) .
Arizona. Babb v. State, 18 Ariz
505, 163 P 259, AnnCas 1918B, 925.
Arkansas. Johnson v. State, 152
Ark 218, 238 SW 23.
California. People v. Brown, 28
CalApp 261, 152 P 58; People v.
Groenig, 57 CalApp 495, 207 P 502.
Colorado. Clarke v. People, 64
Colo 164, 171 P 69.
Connecticut. State v. Enanno, 96
Conn 420, 114 A 386.
Georgia. Stanford v. State, 153
Ga 219, 112 SE 130; Mitchell v.
State, 18 GaApp 501, 89 SE 602;
Snead v. State, 25 GaApp 772, 105
SE 249.
Idaho. State v. Wain, 14 Idaho 1,
80 P 221; State v. Monteith, 53
Idaho 30, 20 P2d 1023.
Illinois. People v. Binger, 289 111
582, 124 NE 583.
Michigan. People v. Breen, 192
Mich 39, 158 NW 142.
Mississippi. Boykin v. State, 86
Miss 481, 38 S 725; State v. Wof-
ford, 99 Miss 759, 56 S 162; Hinton
v. State, 129 Miss 226, 91 S 897.
Missouri. State v. Barnes, 274
Mo 625, 204 SW 267; State v.
Jordan, 285 Mo 62, 225 SW 905
(error in omission of word "wil-
fully"); State v. Lamont (Mo), 180
SW 861; State v. Hutchison (Mo),
186 SW 1000; State v. Weiss (Mo),
219 SW 368; State v. Wicker (Mo),
222 SW 1014; State v. Miller (Mo),
234 SW 813.
Nebraska. Titterington v. State,
75 Neb 153, 106 NW 421; Christiancy
v. State, 106 Neb 822, 184 NW 948.
Nevada. State v. Burns, 27 Nev
289, 74 P 983.
New Jersey. State v. Samuels,
92 NJL 131, 104 A 322; State v.
Hendershot, 9 NJMisc 103, 153 A
99.
Oklahoma. Davis v. State, 18 Okl
Cr 453, 196 P 146.
Oregon. State v. Merlo, 92 Or
678, 173 P 317, revd. 92 Or 678,
182 P 153.
Pennsylvania. Commonwealth v.
Loomis, 267 Pa 438, 110 A 257;
Commonwealth v. Parente, 184 Pa
SuperCt 125, 133 A2d 561.
West Virginia. State v. Ringer,
84 WVa 546, 100 SE 413; State v.
Green, 101 WVa 703, 133 SE 379.
"People v. Skelly, 409 111 613,
100 NE2d 915.
1 Bridges v. State, 55 OklCr 188,
27 P2d 868.
2 Davenport v. Burbank, 193 la
1230, 188 NW 786.
241
SUBJECT-MATTER
§70
struction is generally held to be within the discretion of the
court.3
§ 70. Failure of party to testify in his own behalf or call ma-
terial witness.
The practice of courts is not uniform as to whether it is
proper to instruct that an unfavorable inference is raised by
the failure of a party to testify in his own behalf or to call a
material witness.
In many jurisdictions the court does not have authority to
instruct that the failure of a party to testify in his own behalf
or to call a material witness would give the jury a right to
assume that the testimony, if given, would be detrimental to
the party so failing.4 Other jurisdictions permit the practice.5
3 Idaho. State v. Boyles, 34 Idaho
283, 200 P 125.
Missouri. State v. Barnes, 274 Mo
625, 204 SW 267.
Virginia. Jarrell v. Common-
wealth, 132 Va 551, 110 SE 430.
4 Alabama. Carter v. Chambers,
79 Ala 223; Bates v. Morris, 101
Ala 282, 13 S 138.
An instruction that failure of state
to offer second dying1 declaration
raised presumption that it was less
favorable to prosecution than, first
declaration was properly refused.
Defense could have required its pro-
duction. Husch v. State, 211 Ala
274, 100 S 321.
Arkansas. Worthington v. Curd
& Co., 15 Ark 491.
California. Sesler v. Montgomery,
78 Cal 486, 21 P 185, 3 LEA 653,
12 AmSt 76.
Indiana. Mortimer v. Daub, 52
IndApp 30, 98 NE 845.
Iowa. Miller v. Dayton, 57 la
423, 10 NW 814.
Michigan. Cross v. Lake Shore
& M. S. Ry. Co., 69 Mich 363, 37
NW 361, 13 AmSt 399; Hitchcock
v. Davis, 87 Mich 629, 49 NW 912;
Norris v. Home City Lodge No. 536,
I.O.O.F., 203 Mich 90, 168 NW 935.
But see Michigan cases in note 5,
infra.
Missouri. Hartman v. Hartman,
314 Mo 305, 284 SW 488; Lamport
v. Aetna Life Ins. Co. (Mo), 199
SW 1020.
Nebraska. Westing* v. Chicago,
B. & Q. R. Co., 87 Neb 655, 127 NW
1076; Neal v. State, 104 Neb 56, 175
NW 669.
New York. Hayden v. New York
Rys. Co., 233 NY 34, 134 NE 826;
Blauner v. Reeveland, 203 AppDiv
101, 196 NYS 457; Lans v. Stern
(AppDiv), 197 NYS 147. But see
New York cases in note 5, infra.
North Carolina. Bank of States-
ville v. L. Pinkers & Co., 83 NC
377; Ellison v. Rix, 85 NC 77; Cox
v. Norfolk & C. R. Co., 126 NC 103,
35 SE 237.
Texas. Claiborne v. Tanner's
Heirs, 18 Tex 68.
5 Federal. Plunkett v. Leveng-
ston, 169 CCA 609, 258 F 889.
Georgia. Moye v. Reddick, 20
GaApp 649, 93 SE 256.
Maine. Union Bank v. Stone, 50
Me 595, 79 AmDec 631.
Massachusetts. Robinson v. Doe,
224 Mass 319, 112 NE 1007.
Michigan. Griggs v. Saginaw <&
F. Ry. Co., 196 Mich 258, 162 NW
960; Anderson v. Kendrick, 199 Mich
240, 165 NW 732. But see Michi-
gan cases in note 4, supra.
New York. Brooks v. Steen, 6
Hun (NY) 516; Goodstein v. Brook-
lyn Heights R. Co., 69 AppDiv 617,
74 NYS 1017; Ripley v. Second Ave.
R. Co., 8 Misc 449, 59 NYS 37, 28
NYS 683; Paverman v. Joline, 120
NYS 64. But see New York cases in
note 4, supra.
§70 INSTRUCTIONS — RULES GOVERNING 242
In still other jurisdictions, the matter is declared to rest within
the sound discretion of the trial court.6
Jurisdictions not permitting practice. The right of a party
to testify in his own behalf is a personal privilege,7 and there
seems no reason why he should be compelled to establish his
case by his own testimony if it can be established by the evidence
of other competent and disinterested witnesses.8 This does not
prevent counsel from commenting on the failure to introduce such
testimony.9
The Supreme Court of Connecticut said: "The circumstance
that a particular person, who is equally within the control of
both parties, is not called as a witness, is too often made the
subject of comment before the jury. Such a fact lays no
ground for any presumption against either party. If the witness
would aid either party, such party would probably produce him.
As he is not produced, the jury have no right to presume any-
thing in respect to his knowledge of any facts in the case,
because they are to try the case upon the facts shown in the
evidence, and upon them alone, without attempting to guess at
what might be shown if particular persons were produced by
the parties/'10 But, in a later Connecticut case,1 ' a trial judge
using these very words in a charge to the jury was reversed on
the ground that an unfavorable inference can properly be drawn.
Yet, the Court completely ignored the earlier case. This leaves
the question open whether no instruction at all should be given
or whether an instruction, upon request, pointing out the un-
favorable inference, should be granted. The same ambiguity is
present in those states forbidding an instruction on the unfavor-
able inference. Is it acceptable conduct if the trial judge simply
remains silent on this point, or must he grant a requested in-
struction that no unfavorable inference is to be drawn? The
doubt is eliminated, at least where there is a controlling statute :
the court should not refuse to instruct in accordance with
statute that no unfavorable presumption is to be drawn from
Ohio. Zane Dev. Syndicate v. 7 Moore v. Wright, 90 111 470.
Kurtz, 3 OLA 41; Akron Taxicab 8 Westing v. Chicago, B. & Q. R.
Co. v. Dawson, 12 OLA 316. Co., 87 Neb 655, 127 NW 1076.
Pennsylvania. Steininger v. Hoch's 9 Akalitis v. Philadelphia & Read-
Exr., 42 Pa 432; Frick v. Barbour, ing Coal & Iron Co., 152 CCA 287,
64 Pa 120'; Collins v. Leafey, 124 239 F 299; Cross v. Lake Shore &
Pa 203, 16 A 765; Hoffman v. M. S. Ry. Co., 69 Mich 363, 37 NW
Gexnehl, 266 Pa 498, 109 A 755. 361, 13 AmSt 399.
Rhode Island. Paolino v. Apple- In Wisconsin comment is by stat-
ton (RI), 131 A 200. ute forbidden.
6 Zuber v. Northern Pacific Ry. l ° Scovill v. Baldwin, 27 Conn
Co., 246 Minn 157, 74 NW2d 641; 316.
Delaware & Hudson Co. v. Nahas, 14 ' [ Ezzo v. Geremiah, 107 Conn
F2d 56. 670, 142 A 461.
243 SUBJECT-MATTER § 71
the failure of a wife to testify in a suit to cancel a deed from
husband to wife as having been made in fraud of creditors. ! 2
Jurisdictions permitting practice. It is proper for the court
to submit to the jury's consideration the failure of the plaintiff
in an automobile collision case to call as witnesses the persons
who treated those injured in the accident.13 The authority to
give an instruction on the unfavorable inference to be drawn
from a failure of a party to testify or call a witness is not un-
limited. The instruction should not be given unless it clearly
appears that the party could have produced the evidence.14 It
would seem clear that an instruction as to inferences from
failure to introduce evidence to rebut a charge should not be
given where the reason for this failure was that the party relied
on the improbability of the evidence introduced in support of the
claim.15 In any event attention should not be called to the
fact of failure of a party to produce documents to sustain his
contention where such documents are not in his possession but
in the possession of third persons.16 Nor should the court com-
ment on the failure to call a witness who has no other or better
knowledge of the matter in dispute than those who are produced
and testify. ' 7 Refusal of the court to comment on the failure of
a party to call a witness who had testified at a previous trial of
the case has been held justified on the ground that his testimony
would have been merely cumulative. ' 8
The rule has no application to a case where the defendant
merely fails to introduce any evidence. f 9
§ 71. Failure of defendant in criminal case to testify or call
witness or produce evidence.
The court in a criminal prosecution may charge that the jury
should not consider the failure of the defendant to testify as a
circumstance against him.
12 Cotton States Fertilizer Co. v. 4 SE 320; Wilson Groc. Co. v. Na-
Childs, 179 Ga 23, 174 SE 708. tional Surety Co., 218 IllApp 584.
1 3 Heck v. Henne, 238 Mich 198, f 7 Minnesota. Jankowski v. Clau-
213 NW 112. sen, 167 Minn 437, 209 NW 317.
1 4 Indiana. Bump v. McGranna- Mississippi. See Hobson v. Mc-
han, 61 IndApp 136, 111 NE 640. Leod, 165 Miss 853, 147 S 778.
New York. Metallurgical Secur. New York. Fitzpatrick v. Wood-
Co, v. Mechanics & Metals Nat. raff, 47 NYSuperCt 436.
Bank, 171 AppDiv 321, 157 NYS l8DenBleyker v. Public Service
321 (witness in insane asylum). Co-ordinated Transport, 11 NJMise
Pennsylvania. See Adams v. 101, 164 A 695.
Derian, 115 PaSuperCt 357, 175 A r 9 Hubbard v. Cleveland, Colum-
762. bus & Cincinnati Highway, Inc., 81
• s Smith v. Chicago City R. Co., OhApp 445, 37 OhO 279, 76 NE2d
165 IllApp 190. 721 [motion to certify overruled
16 Harrison v. Kiser, 79 Ga 588, 1-21-48].
71
INSTRUCTIONS — RULES GOVERNING
244
In criminal cases in most states, in contrast to the rule in
civil cases, the trial court is permitted to instruct the jury that
the failure of the defendant to testify is not an unfavorable
inference.20 In some states the court is not required on its
20 Federal. Robilio v. United
States, 170- CCA 169, 259 F 101;
United States v. Brookman, 1 F2d
528.
Alabama. Thomas v. State, 139
Ala 80, 36 S 734,
Arkansas. Martin v. State, 151
Ark 365, 236 SW 274.
Connecticut. State v. Williams,
90 Conn 126, 96 A 370.
Florida. Fooler v. State, 96 Fla
68, 117 S 694.
Georgia. Stephens v. State, 21
GaApp 151, 94 SE 69.
Idaho. State v. Levy, 9 Idaho 483,
75 P 227.
Illinois. People v. Michael, 280
111 11, 117 NE 193.
Iowa. State v. Bower, 191 la 713,
183 NW 322.
Kansas. State v. Goff , 62 Kan 104,
61 P 683; State v. Olsen, 88 Kan
136, 127 P 625.
Louisiana. State v. Johnson, 50
LaAnn 138, 23 S 199.
Massachusetts. Commonwealth v.
Brown, 167 Mass 144, 45 NE 1.
The court should instruct on un-
warranted argument of prosecuting
attorney respecting" failure of ac-
cused to testify. Commonwealth v.
Richmond, 207 Mass 240, 93 NE
816, 20 AnnCas 1269.
Michigan. People v. Provost, 144
Mich 17, 107 NW 716, 8 AnnCas 277;
People v. Murnane, 213 Mich 205,
182 NW 62; People v. Ferrise, 219
Mich 471, 189 NW 56; People v. De
Bolt, 269 Mich 39, 256 NW 615.
The court should not call atten-
tion to the fact that accused had
not testified when the prosecution
relied on the testimony of eye-wit-
nesses. People v. Peterson, 166 Mich
10, 131 NW 153.
People v. Thrine, 218 Mich 687,
188 NW 405 (not necessary to refer
to matter).
Minnesota. State v. Richman, 143
Minn 314, 173 NW 718.
Mississippi. Funches v. State, 125
Miss 140, 87 S 487; Haynes v. State
(Miss), 27 S 601.
Missouri. Moberly (City of) v.
Kervin (MoApp), 234 SW 514 (ap-
plication of rule to violation of ordi-
nances).
Montana. State v. Fuller, 34
Mont 12, 85 P 369, 8 LRA (N. S.)
762.
Nebraska. Neal v. State, 104 Neb
56, 175 NW 669.
New Mexico. State v. Graves, 21
NM 556, 157 P 160.
North Carolina. State v. Turner,
171 NC 803, 88 SE 523.
North Dakota. State v. Currie,
13 ND 655, 102 NW 875, 69 LRA
405, 112 AmSt 687.
Ohio. Tate v. State, 76 OhSt 537,
81 NE 973, 10 AnnCas 949; Sulli-
van v. State, 9 OhCirCt 652, 4 Oh
CirDec 451.
The court can, under the amend-
ment of Ohio Const. Art. I, § 10 on
September 3, 1912, instruct the jury
that they may take into considera-
tion the failure of the accused to
testify. State v. Morrow, 90 OhSt
202, 107 NE 515; State v. Fleming,
127 OhSt 8, 186 NE 613.
Oklahoma. Holmes v. State, 13
OMCr 113, 162 P 446; McLaughlin
v. State, 14 OklCr 192, 169 P 657;
Dunn v. State, 15 OklCr 245, 176
P 86; Conley v. State, 15 OklCr 531,
179 P 480; Russell v. State, 17 Okl
Cr 164, 194 P 242.
South Dakota. State v. Wells, 53
SD 446, 221 NW 56.
Texas. Guinn v. State, 39 TexCr
257, 45 SW 694; Lounder v. State,
46 TexCr 121, 79 SW 552; Kinkead
v. State, 61 TexCr 651, 135 SW 573;
Eubank v. State, 104 TexCr 628,
286 SW 234.
Vermont. State v. Bolton, 92 Vt
157, 102 A 489; State v. Rossi, 92
Vt 187, 102 A 1030.
Washington. State v. Comer, 176
87 Wash 613, 152 P 335.
245 SUBJECT-MATTER § 71
own motion to instruct on this question,21 while in others this
instruction is mandatory.22 Even though this instruction is
permitted, the language used by the judge must not amount
to a comment by the court on the defendant's failure to testify ;
if it is a comment, it is reversible error in those jurisdictions
adhering to the general rule forbidding comment or opinion by
the trial judge.23 It is improper and reversible error for the
court to tell the jury that the rule does not relieve the de-
fendant from the duty of satisfactorily accounting for his recent
possession of stolen property,24
It is not an adverse comment for the judge to merely tell the
jury that the defendant failed to testify, 2S or that he has the
right to introduce evidence,26 or that the state's evidence was un-
contradicted.27
If a judge on his motion instructs that there is no un-
favorable inference from the failure of the defendant to testify,
is this prejudicial error against the defendant? Probably the
reason the defendant would object is that by giving this in-
struction, the fact of defendant's failure to testify would be
called to the attention of the jury, the danger then being that
they would draw, on their own, an unfavorable inference. At any
rate, the courts have ruled that it is not error because such an
instruction is favorable to the defendant.28
Some courts make a distinction between the defendant fail-
ing to testify and the failure of the defendant to call a witness.
Of these courts, some permit the judge to tell the jury they
could infer from failure to call an available witness that the
testimony of the witness would be adverse to the defendant.29
2 i Connecticut. State v. Heno, 23 Mason v. State, 53 OkiCr 76,
119 Conn 29, 174 A 181, 94 ALR 7 P2d 492.
696. 24 State v. Rock, 162 La 299, 110
Oregon. State v. Magers, 36 Or S 482.
38, 58 P 892. 2S Commonwealth v. Chickerella,
Washington. State v. Comer, 176 251 Pa 160, 96 A 129.
Wash 257, 28 P2d 1027. 26 Smith v. State, 127 TexCr 59,
22 Federal. See Hersh v. United 75 SW2d 99.
States, 68 F2d 799. 27 Shea v. United States, 163 CCA
Arkansas. Cox v. State, 173 Ark 451, 251 F 440; Sidebotham v.
1115, 295 SW 29. United States, 165 CCA 159, 253 F
Illinois. See People v. Winn, 324 417; McCormick v. United States,
111 428, 155 NE 337. 9 F2d 237.
New York. People v. Ferguson, 2S Kahn v. United States, 20 F2d
245 AppDiv 837, 280 NTS 922 (fail- 782 (held not prejudicial) ; State v.
ure of the accused to call a wit- Simpson, 78 ND 571, 50 NW2d 661.
ness). 29 Commonwealth v. Fusci, 117
West Virginia. State v. McClung, PaSuperCt 379, 177 A 596.
104 WVa 330, 140 SE 55, 56 ALR
257.
.72
INSTRUCTIONS — RULES GOVERNING
246
In some situations, it would be error for the court to refuse de-
fendant's request that failure to call a witness should not raise
an adverse inference ; for example, where the wife of the defend-
ant is incompetent to testify, it has been held error for the
court to decline a request to inform the jury of her incompe-
tency.3£>
§ 72. Alibi in criminal cases.
Where the issue of alibi is raised by the evidence, the jury
should be Instructed to acquit if there is any reasonable doubt
as to the presence of the accused at the time and place where
the crime was committed.
There are many cases supporting the rule as stated.31 The
instruction or alibi need not be repeated;32 and it may be sub-
mitted together with all the evidence instead of being treated
as an independent issue.33
The instruction should be requested where not given by the
court on his own motion.34
3° People v. Casey, 350- 111 522,
183 NE 616.
31 Florida. Jordan v. State, 50
Fla 94, 39 S 155; Clark v. State,
88 Fla 186, 101 S 352.
Georgia. Montford v. State, 144
Ga 582, 87 SE 797.
Indiana. Jacoby v. State, 203 Ind
321, 180 NE 179.
Kansas, State v. Moore, 110 Kan
732, 205 P 644.
Missouri. State v. Davis, 186 Mo
533, 85 SW 354; State v. Shelton,
223 Mo 118, 122 SW 732; State v.
Brown, 247 Mo 715, 153 SW 1027.
Montana. State v. Spotted Hawk,
22 Mont 33, 55 P 1026.
Ohio. Walters v. State, 39 OhSt
215; Burns v. State, 75 OhSt 407,
79 NE 929; State v. Norman, 103
OhSt 541, 134 NE 474; Radke v.
State, 107 OhSt 399, 140 NE 586;
Sabo v. State, 119 OhSt 231, 163
NE 28; Stevens v. State, 26 OhApp
53, 159 NE 834; McGoon v. State, 39
OhApp 212, 177 NE 238.
Oklahoma. Beck v. State, 50 Okl
Cr 325, 297 P 820.
Pennsylvania. An alibi was suf-
ficiently explained by a charge that
the defendant disclaimed all knowl-
edge of the alleged offense and that
he had endeavored to satisfy the
jury by evidence that on that par-
ticular day he was elsewhere. Com-
monwealth v. Durlin, 75 PaSuperCt
260.
Texas. Joy v. State, 41 TexCr 46,
51 SW 933; Stripling v. State, 47
TexCr 117, 80' SW 376; McAninch v.
State, 77 TexCr 649, 179 SW 719;
Burkhalter v. State, 79 TexCr 336,
184 SW 221; James v. State, 86
TexCr 107, 215 SW 459; Hill v.
State, 103 TexCr 580, 281 SW 1071;
Harris v. State, 119 TexCr 71, 44
SW2d 708; Rountree v. State (Tex
Cr), 55 SW 827.
Wisconsin. Abaly v. State, 163
Wis 609, 158 NW 30-8.
3 2 Cook v. People, 177 111 146, 52
NE 273. But see Edmonds v. Com-
monwealth, 204 Ky 495, 264 SW
1100.
33 California. People v. Dowell,
204 Cal 109, 266 P 807; People v.
Derwin, 78 CalApp 781, 248 P 1029.
Georgia. Holland v. State, 17
GaApp 311, 86 SE 739.
Vermont. State v. Powers, 72
Vt 168, 47 A 830.
34 Alabama. The court properly
refused instruction which did not
set out the elements constituting an
247
SUBJECT-MATTER
§72
If there be evidence of alibi in the record, and the evidence
purporting to identify the accused as the guilty party is vague
and uncertain, it is error to refuse to instruct as to weighing alibi
evidence.35 But the charge is not required where all the evidence
is against the theory of defendant's presence elsewhere.36
Where the evidence in a prosecution such as that for arson
makes it possible for the accused to have been a participant in
the crime though not present at the scene, the court is not
required to give an instruction on alibi.37
The court is not excused from giving a proper charge as to
the defense of alibi merely because the judge deems the evi-
dence thereon weak or inconclusive.38 The court should not dis-
parage the defense,39 though he may advise the jury to scan
the evidence on the subject with care and attention.40 It has been
held not erroneous for the court to tell the jury that the
alibi, and referred that question of
law to the jury. Collins v. State,
14 AlaApp 54, 70 S 995.
Georgia. Barrett v. State, 32
GaApp 30, 122 SE 645.
Iowa. State v. Lightfoot, 107 la
344, 78 NW 41.
Montana. State v. Bess, 60 Mont
558, 199 P 426.
35 People v. Parker, 135 CalApp
761, 27 P2d 921.
36Mathis v. State, 153 Ga 105,
111 SE 567; Weeks v. State, 28
GaApp 712, 112 SE 906; Hughes v.
State, 78 TexCr 154, 180 SW 259;
Woods v. State, 80 TexCr 73, 188
SW 980; May v. State, 129 TexCr
2, 83 SW2d 338.
37 People v. Ferlin, 203 Cal 587,
265 P 230; State v. Lawrence (Mo),
71 SW2d 740.
3 s Fay v. United States, 22 F2d
740, affg. 19 F2d 620.
39 California. People v. Passa-
fiume, 59 CalApp 283, 210 P 544.
Illinois. See People v. Heinen,
300 111 498, 133 NE 232.
Iowa. State v. Wrenn, 194 la 552,
188 NW 697.
Louisiana. State v. Molay, 174
La 63, 139 S 759.
Michigan. It is not disaparage-
ment for the court to charge that
the jury should scrutinize carefully
the evidence relating to alibi as be-
ing a defense easy to prove and
hard to disprove. People v. Trzil,
235 Mich 469, 209 NW 564.
Minnesota. State v. Buddy, 152
Minn 179, 188 NW 261.
Missouri. State v. Crowell, 149
Mo 391, 50' SW 893, 73 AmSt 402.
Nebraska. It was error for the
court to advise the jury that the
defense of alibi was one "easily
fabricated, that it has occasionally
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, 51 Neb 149, 70' NW
924, 66 AmSt 450.
New York. People v. Russell, 266
NY 147, 194 NE 65; People v.
Robins, 242 AppDiv 516, 275 NYS
940.
Ohio. Radke v. State, 107 OhSt
399, 140 NE 586.
Oregon. State v. Milosevich, 119
Or 404, 249 P 625.
Pennsylvania. Commonwealth v.
White, 271 Pa 584, 115 A 870.
Washington. It is error to tell
the jury to consider the defense of
alibi "with great caution ." State
v. Lloyd, 138 Wash 8, 244 P 130.
See comprehensive note in 14 ALR
1426, collecting the cases upon the
subject under the title "Instructions
disparaging defense of alibi."
40 Federal. Fielder v. United
States, 142 CCA 356, 227 F 832,
§72
INSTRUCTIONS — KULES GOVERNING
248
defense of alibi is easy to prove and hard to disprove, and that
they ought to scan the evidence of it cautiously.4 '
Proof of the alibi must cover the whole time of the commis-
sion of the crime.42 And if the requested instruction on alibi is
based on evidence that covers the presence of the defendant
and accounts for his whereabouts during only a portion of the
time within which the crime could have been committed, it
should be refused.43
It is only necessary that the evidence of the alibi should
raise a reasonable doubt in the mind of the jury. It is not re-
quired that the alibi should be conclusively established.44 The
evidence of alibi is sufficient if it raises a reasonable doubt, and
therefor it is error for the instructions to require the proof to
cover so much of the transaction in question as would have ren-
dered it impossible for the defendant to have committed the
act.45
A general instruction informing the jury that the prosecution
must prove all the material elements of the offense beyond a
reasonable doubt will obviate the necessity for an alibi instruc-
tion where the evidence of alibi is not offered until rebuttal and
California. People v. Wing-, 31
CalApp 785, 161 P 759; People v.
Ross, 89 CalApp 132, 264 P 314.
But see People v. Barr, 55 CalApp
321, 203 P 827.
Iowa. State v. Worthen, 124 la
408, 100 NW 330; State v. Leete, 187
la 305, 174 NW 253; State v. Cart-
wright, 188 la 579, 174 NW 586;
State v. Banoch, 193 la 851, 186 NW
436.
Minnesota. State v. Duddy, 152
Minn 179, 188 NW 261.
Pennsylvania. Commonwealth v.
White, 271 Pa 584, 115 A 870.
Vermont. It is not improper to
charge that defendant must prove
an alibi by a fair balance of the
evidence; that if the jury were sat-
isfied beyond any question that an
alibi was a fabricated defense it
was evidence, though not conclusive,
of guilt, and that if the jury were
not satisfied with the alibi they
could not throw it out of the case
but must consider it with other evi-
dence. State v. Hier, 78 Vt 488,
63 A 877.
4 i People v. Marcus, 253 Mich
410, 235 NW 202.
42McDaniel v. United States, 24
F2d 303; People v. Shaw, 300 111
451, 133 NE 208; People v. Pargone,
327 111 463, 158 NE 716; People v.
Terracco, 346 111 423, 179 NE 114;
People v. Wynekoop, 359 111 124, 194
NE 276.
43 State v. McLane (Mo), 55
SW2d 956.
44 Federal. McCool v. United
States, 263 F 55.
Alabama. Doby v. State, 15 Ala
App 591, 74 S 724.
Arkansas. Morris v. State, 145
Ark 241, 224 SW 724.
California. People v. De Angelo,
122 CalApp 360', 9 P2d 850.
Idaho. State v. Ward, 31 Idaho
419, 173 P 497.
Illinois. People v. Heinen, 300
111 498, 133 NE 232; People v. Todd,
301 111 85, 133 NE 645.
Iowa. State v. Wrenn, 194 la
552, 188 NW 697. But see State v.
O'Brien, 188 la 165, 175 NW 769.
45 Stevens v. State, 26 OhApp 53,
159 NE 834.
249
SUBJECT-MATTER
:73
then only to overcome the evidence which tended to identify the
defendant as the criminal.46
There is authority that the court may charge that the failure
to prove the alibi may be considered by the jury on the question
of the guilt of the defendant47
§ 73. Instruction to disregard testimony erroneously received.
Whenever inadmissible evidence is received, the court should
instruct the jury to disregard it.
Obviously, admissible evidence that has been received cannot,
without the commission of error, be excluded by the court.4*
On the other hand, whenever inadmissible evidence is re-
ceived, the court, should instruct the jury to disregard it.49 This
46 Witt v. State, 205 Ind 499,
185 NE 645.
47 Threet v. State, IS AlaApp 342,
91 S 890.
48 Campanale v. Metropolitan Life
Ins. Co., 290 Mass 149, 194 NE
831, 97 ALR 1282; United Power
Co. v. Matheny, 81 OhSt 204, 90
NE 154, 28 LRA (N. S.) 761; Man-
ley v. Coleman, 19 OhApp 284, 22
OLE 242; Cincinnati Gas & Elec.
Co. v. Coffelder, 11 OhCirCt (N. S.)
289, 21 OhCirDec 26; Toledo v.
Meinert, 15 OhCirCt (N. S.) 545, 31
OhCirDec 118; Walsh v. Walsh, 18
OhCirCt (N. S.) 91, 32 OhCirDec
617.
49 United States. The court may
charge the jury to disregard all
evidence they find to be false. Allen
v. United States, 164 US 492, 41
LEd 528, 17 SupCt 154.
Alabama. Foxworth v. Brown,
120 Ala 59, 24 S 1. See also Age-
Herald Publishing Co. v. Waterman,
202 Ala 665, 81 S 621.
California. People v. Delaney, 52
CalApp 765, 199 P 896.
Florida. The practice is not to be
commended. Edington v. State, 81
Fla 634, 88 S 468.
Kansas. State v. Roupetz, 73 Kan
663, 85 P 778.
Kentucky. Where evidence is or-
dered rejected after it has gone to
the jury, the court in admonishing
as to the exclusion of such evidence
should specify it in detail and should
name the witnesses from whom it
has been elicited in order to identify
it. Bess v. Commonwealth, 116 Ky
927, 25 KyLRep 839, 77 SW 349.
New York. Charles W. Schreiber
Travel Bureau v. Standard Surety &
Casualty Co., 240' AppDiv 279, 269
NYS 804.
North Carolina. State v. Sulli-
van, 193 NC 754, 138 SE 136.
The court should charge disregard
of evidence solely against one de-
fendant as to whom court grants
nonsuit. State v. Slagle, 182 NC
894, 109 SE 844.
Ohio. Error in admitting evidence
was held cured by instruction ex-
cluding such evidence from the con-
sideration of the jury. Mills v.
State, 104 OhSt 202, 135 NE 527.
See also Mimms v. State, 16 OhSt
221; Klein v. Thompson, 19 OhSt
569; Hocking Valley Ry. Co. v. Hei-
ber, 91 OhSt 231, 110 NE 481; Lo-
gan v. Cleveland Ry. Co., 107 OhSt
211, 140 NE 652; McGuire v. State,
3 OhCirCt 551, 2 OhCirDec 318;
Cincinnati & H. Tpk. Co. v. Hester,
12 OhCirCt 350, 5 OhCirDec 690;
Cincinnati, H. & D. Ry. Co. v. Criss,
15 OhCirCt 398, 7 OhCirDec 632;
Lake Shore & M. S. Ry. Co. v. Litz,
18 OhCirCt 646, 6 OhCirDec 285;
Hoppe v. Parmalee, 20 OhCirCt 303,
11 OhCirDec 24; Pritchard v. State,
1 OLA 459.
Error in admitting evidence was
held not cured by court's general
charge excluding such evidence from
consideration. John Bright Shoe
§73
INSTRUCTIONS — RULES GOVERNING
250
rule is distinct from the rule that it is improper to give an in-
struction based on evidence that is not in the record.
If incompetent evidence has been admitted against a party
without his objection, or under a waiver of objection, the court
is under no duty to give a requested charge to the jury to dis-
regard such evidence.50 But the jury should be told to ignore
testimony which has been admitted with the understanding that
it is to be followed by other evidence making it competent and
such additional evidence is not forthcoming,51 or testimony
which has been "admitted" improperly,52 or inadvertently in-
troduced,53 or which is not material to the issue involved in the
case,54
Illustrations: Where evidence of several transactions was re-
ceived, and the evidence as to all but one was incompetent, the
Stores Go. v. Scully, 24 OhApp 15,
156 NE 155. See also Metzger v.
Rogers, 11 OLA 659.
Failure of court to give requested
instruction excluding from consider-
ation of jury evidence erroneously
admitted was held reversible error.
Ashtabula Rapid Transit Co. v.
Stephenson, 12 OhCirDec 631. See
also John Bright Shoe Stores Co. v.
Scully, 24 OhApp 15, 156 NE 155;
Cleveland Elec. Ry. Co. v. Stanton,
16 OhCirCt (N. S.) 397, 31 OhCir
Dec 571; Wagner v. Trott, 7 OLA
491.
Pennsylvania. Wadsworth v.
Manufacturers' Water Co., 256 Pa
106, 100' A 577, AnnCas 1917E, 1099.
Texas. Occident Fire Ins. Co. v.
Linn (TexCivApp), 179 SW 523.
50 Frank v. Far Store, 18 OhApp
275; Trustees of Cincinnati South-
ern Ry. Co. v. McWilliams, 18 Oh
App 225; Circleville v. Sohn, 20 Oh
CirCt 368, 11 OhCirDec 193; Halsey
v. Humble Oil & Ref. Co. (TexCiv
App), 66 SW2d 1082.
B ' Patton & Shaver v. Elk River
Nav. Co., 13 WVa 259.
S2 Alabama. Where a complaint
claims items of damages not recov-
erable for the injury alleged, special
instructions may be asked excluding
evidence as to such items. Mar-
sicano v. Phillips, 6 AlaApp 229, 60
S 553.
California. Martin v. Pacific Gas
& Elec. Co. (CalApp), 255 P 284.
Georgia. Wyatt v. State, 18 Ga
App 29, 88 SE 718.
Illinois. Bedell v. Janney, 4 Gilm.
(9 111) 193; Pittman v. Gaty, 5 Gilm.
(10 111) 186.
Indiana. Gallivan v. Stickler, 187
Ind 201, 118 NE 679.
Kentucky. Chesapeake & 0. Ry.
Co. v. Stein, 142 Ky 515, 134 SW
1169.
Missouri. Gutzweiler's Admr. v.
Lackmann, 39 Mo 91.
Oklahoma. Creek Coal Min. Co.
v. Paprotta, 73 Okl 119, 175 P 235.
Washington. Bentley v. Western
Union Tel. Co., 98 Wash 431, 167
P 1127, LRA 1918B, 965.
53 Price v. Weed, 9 NM 397, 54
P 231; Hall v. Earnest, 36 Barb.
(NY) 585.
54 Illinois. Forest Preserve Dist.
v. Hahn, 341 111 599, 173 NE 763.
Indiana. Utter v. Vance, 7 Blackf .
(Ind) 514.
Iowa. Dilly v. Paynsville Land
Co., 173 la 536, 155 NW 971.
Maine. Harlow v. Perry, 114 Me
460, 96 A 775, AnnCas 1918C, 37.
Massachusetts. Matthews v. New
York Cent. & H. R. R. Co., 231
Mass 10, 120 NE 185.
Missouri. White v. Gray, 32 Mo
447.
Pennsylvania. Devling1 v. Wil-
liamson, 9 Watts (Pa) 311.
251 SUBJECT-MATTER § 74
jury was not properly advised by a charge which told them that
the state relied on one of the transactions and that the jury
would disregard the other transactions.53 Where, in an action
for damages for automobile collision, there was testimony that
an automobile hit a truck, but the falsity of the testimony was
disclosed by the admission in evidence of photographs showing
that the truck ran into the side of the automobile, it was held
proper for the court to tell the jury to disregard the testimony
thus shown to be false.56 Where the action is on a written con-
tract, and the court has improperly admitted parol evidence,
it is error to give an instruction based on such parol evidence.57
Where, however, the court has ruled that certain evidence is
inadmissible, there is no necessity for an instruction to disregard
it.58 The error in refusing to direct the jury to disregard im-
proper evidence is not fatal where it is apparent that the jury
did disregard it.59 It is not necessary to give this instruction as
to evidence withdrawn or stricken.60
The jury should be instructed to disregard statements by
counsel, not sworn as witnesses, as to their personal knowledge
of witnesses made to discredit them,61 also to disregard col-
loquies between court and counsel.62 Where the adverse remarks
of the court were calculated to destroy a defense, it is held that
the error is such that it cannot be cured by the admonition to
disregard such comments.63
§ 74. Argument of counsel.
Although counsel may fairly maintain their cause by empha-
sizing those features of the evidence which in their judgment
53 Ward v. State, 117 TexCr 330, 59 Frizelle v. Kaw Valley Paint
35 SW2d 733. & Oil Co., 24 MoApp 529.
56 Young v. Gill, 103 PaSuperCt 60 Alabama. Russell v. Bush, 196
467, 157 A 348. Ala 309, 71 S 397.
57 Kraft-Phenix Cheese Corp. v. California. People v. Nakis, 184
H. B. Smith Mach. Co., 267 IllApp Gal 105, 193 P 92.
539. Indiana. Central Indiana Ry. Co.
5 « California. Gorman v. Sacra- v. Clark, 63 IndApp 49, 112 NE
mento County, 92 CalApp 656, 268 892.
p 1083. Wisconsin. Advance - Rumely
Georgia. Strachan Shipping Co. v. Thresher Co. v. Born, 189 Wis 309,
Hazlip-Hood Cotton Co., 35 GaApp 206 NW 904.
94, 132 SE 454. 6I Van Alstine v. Kaniecki, 109
Indiana. Grand Rapids & I. R. Mich 318, 67 NW 502.
Co. v. Horn, 41 Ind 479. e2 Reutner, Klaus & Co. v. Nelson
Iowa. Sutton v. Moreland, 214 Chesman & Co. (MoApp), 9 SW2d
la 337, 242 NW 75. 655.
North Dakota. State v. Tracy, 21 63 People v. Pitisci, 29 CalApp
ND 205, 129 NW 1033, 727, 157 P 502.
§74
INSTRUCTIONS — RULES GOVERNING
252
sustain their contentions, it is proper for the court to instruct
the jury that the jury determines the facts.
Although counsel are entitled to portray their roles as ad-
vocates,64 their enthusiasm is not unbridled. The court may
properly tell the jury to disregard any statements of counsel con-
cerning the evidence not borne out by the evidence.65 The court
should even without request tell the jury to disregard improper
arguments having a tendency to cause prejudice.66 Where, for
example, the counsel for the defendant states that the prosecut-
ing officer will receive the fine assessed, the court properly told
the jury that it was not their concern who received the fine.67
Where plaintiff's counsel in his opening argument stated
that defendant's counsel would be compensated for their services,
but that he would be compensated only if plaintiff recovered, it
was proper and necessary for the court to promptly instruct the
jury to disregard these remarks.68
The jury may be cautioned to keep in mind the interest or
zeal of attorneys in the causes of their clients in weighing their
arguments.69 Where a prosecuting attorney in his opening and
64 Georgia. McKie v. State, 165
Ga 210, 140 SE 625; Washington v.
State, 25 GaApp 422, 103 SE 854.
Minnesota. State v. Price, 135
Minn 159, 160 NW 677.
Ohio. Herman v. Teplitz, 113 Oh
St 164, 148 NE 641; East Ohio Gas
Co. v. Van Orman, 41 OhApp 56,
179 NE 147; Steen v. Friend, 20
OhCirCt 459, 11 OhCirDec 235.
65 Illinois. Szczech v. Chicago
City R. Co., 157 IllApp 150'.
Michigan. Hayes v. Coleman, 338
Mich 371, 61 NW2d 634.
Minnesota. Meagher v. Fogarty,
129 Minn 417, 152 NW 833.
New Mexico. Remarks of coun-
sel are not evidence. State v. Moss,
24 NM 59, 172 P 199.
Washington. Tacoma v. Wether-
by, 57 Wash 295, 106 P 903; State
v. Lance, 94 Wash 484, 162 P 574;
State v. Neaudeau, 137 Wash 297,
242 P 36.
Wisconsin. Mullen v. Reinig, 72
Wis 388, 39 NW 861.
66 Arkansas. Briggs v. Jones, 132
Ark 455, 201 SW 118.
Illinois. Illinois Cent. R. Co. v.
Borders, 61 IllApp 55.
Indiana. Jackson v. State, 116
Ind 464, 19 NE 330.
Iowa. State v. McCartney, 65 la
522, 22 NW 658. See also State v.
Powers, 180 la 693, 163 NW 402
(punishment to be inflicted not a
question for jury).
Kansas. State v. Francis, 64
Kan 664, 68 P 66.
Massachusetts. Taft v. Fiske, 140
Mass 250, 5 NE 621, 54 AmRep 459.
Missouri. Drumm-Flato Comm.
Co. v. Gerlach Bank, 107 MoApp
426, 81 SW 503.
Rhode Island. It was held proper
for the judge to tell the jury not
to pay attention to observation of
counsel that witnesses had been
seen to enter the office of opposing-
counsel. Brown v. Rhode Island Co.
(RI), 102 A 965.
Texas. Cooksie v. State, 26 Tex
App 72, 9 SW 58.
Washington. Farnandis v. Great
Northern Ry. Co., 41 Wash 486, 84
P 18, 5 LRA (N. S.) 1086, 111 Am
St 1027.
67 Brooks v. State, 19 GaApp 3,
90 SEi 989.
68Golamb v. Layton, 154 OhSt
305, 43 OhO 194, 95 NE2d 681.
69 Federal. Kennedy v. United
States, 275 F 182; Laurie v. United
States, 278 F 934.
253 SUBJECT-MATTER § 74
closing arguments uses violent language, makes inflammatory
remarks, and states his own opinion, it is reversible error for the
court to refuse to give instructions directing the jury to disre-
gard the improper argument.70
It is held reversible error for the court not to tell the jury
that counsel has misconstrued an instruction, for that would
amount to the giving of an erroneous instruction.71 In an ac-
cident case it was held proper for the court to admonish the
jury to disregard the statement of defense counsel that the law
prohibited the using of brighter lights on the street car that
struck plaintiff's automobile.72 If counsel has read the law to
the jury, the trial court may properly tell the jury to disregard
such law and apply the law as given by the court.73 In a juris-
diction, however, in which the jury is the judge of the law
as well as of the facts in a criminal case, it is error for the
court to tell the jury not to consider excerpts from the reported
decisions of the Supreme Court which have been read by coun-
sel to the jury.74
The jury should not be told to disregard the arguments of
counsel.73 It has been held proper for the court to tell the jury
that they must consider all claims of the attorneys.76 It was
reversible error for the judge to say to the jury: "The court
charges you that it is upon the testimony, and the testimony
alone, that you are to make up your verdict ; you are not to be
concerned with the argument of counsel, or anything outside
Minnesota. Welle & Hiltner v. 74 Leinberger v. State, 204 Ind
Pfau, 151 Minn 279, 186 NW 578; 311, 183 NE 798.
State v. Mulroy, 152 Minn 423, 189 7S Georgia. Swearengen v. State,
NW 441. 18 GaApp 763, 90 SE 653.
Oregon. Arnett v. Scherer, 142 Kansas. State v. Bowser, 124 Kan
Or 494, 20 P2d 803. 556, 261 P 846.
70 People v. Provo, 409 111 63, 97 Minnesota. State v. Madden, 137
NE2d 802. Minn 249, 163 NW 507.
71 Brings v. Jones, 132 Ark 455, Missouri. See State v. Farrell,
201 SW 118. 320 Mo 319, 6 SW2d 857.
Statement by the court to the South Carolina. State v. Adams,
jury that a case contended to be 159 SC 179, 156 SE 445.
authoritative by counsel was good Texas. Where counsel had de-
law, but not applicable to the pres- manded of the jury that some of
ent case, was not erroneous. Sears, them "hang" the jury forever under
Roebuck & Co. v. Rouse Banking stated conditions, the court was
Co., 191 NC 500, 132 SE 468. justified in directing the jury to dis-
72 Ostermann v. Milwaukee Elec. regard such statements. Indemnity
Ry. & Light Co., 204 Wis 123, 235 Ins. Co. v. Williams (TexCivApp),
NW 406. 69 SW2d 519.
73 Baucum v. Harper, 176 Ga 296, Utah. People v. Hite, 8 Utah 461,
168 SE 27; State v. Barnett, 110 NJL 33 P 254.
26 163 A 892. 76 State v. Thomas, 105 Conn 757,
136 A 475.
§ 75 INSTRUCTIONS — RULES GOVERNING 254
of the testimony brought to you from the witness stand."77 It
has likewise been held error for the court to say to the jury not
to be misled or let their attention be distracted from the evidence
by arguments about it.78 Where the court told the jury that
they should differentiate between testimony and argument, and
said further that "This is no place to have a dissertation on
punishment," and further that, as to argument of the counsel
for the accused, "You turn as deaf an ear to any harangue of
that kind as you do to anything said about evidence that has not
been offered," the instruction was indefensible as to each of
the features indicated,79 It is within the scope of proper argu-
ment of counsel to impugn the motives and assail the credibility
of opposing witnesses, where the remarks are based upon evi-
dence or reasonable inferences therefrom.80
In many cases, misconduct of counsel can be overcome by the
court's instruction to disregard counsel's remarks. But if im-
proper argument of counsel is of such prejudicial character that
the prejudice cannot be cured by instructions to the jury, then
a new trial should be granted.81
§ 75. Manner of arriving at verdict.
The court cannot coerce a verdict, but this does not prevent
an admonition that the members of the jury should listen to
each other and make an effort to agree on a verdict.
Clearly, an instruction which merely tells the jury that
they should consult with each other and make an effort to reach
agreement is not erroneous.82 It is commendable practice for
77 Messer v. State, 120 Fla 95, Ohio. Bandy v. State, 13 OhApp
162 S 146. 461, 32 OhCtApp 360; Geer v. State,
7* In Commonwealth v. Wood, 118 16 OhCirCt (N. S.) 151, 31 OhCir
PaSuperCt 269, 179 A 756, the Dec 455; Pindlay Bros. Co. v. Eiser,
court said: " '. . . the evidence is 17 OhCirCt (N. S.) 406, 32 OhCir
what you are to be guided by, not Dec 206 (counterclaim); Akron
by anything counsel say about it/ Street R. Co. v. Dussel, 52 OhSt 649,
44 NE 1148, 33 OhBull 98; Bough-
79 Commonwealth v. Brown, 309 ner v. State, 7 OLA 508.
Pa 515', 164 A 726. A charge to the jury which di-
80 Stevens v. Kasten, 342 IllApp rects them to use their sense of
421, 96 NE2d 817. fairness, fair play, and good con-
81 Book v. Erskine & Sons, Inc., science, and not to be influenced by
154 OhSt 391, 43 OhO 334, 96 NE2d anything but a desire to do what is
289, 32 ALR2d 1. right and fair between the parties
82 Federal. Boston & Maine R. is misleading when no reference is
v, Stewart, 165 CCA 424, 254 F 14; made to the law and facts in the
Willis v. United States, 278 F 611. case. Fugman v. Trostler, 24 Oh
Arkansas. Reed v. Rogers, 134 CirCt (N. S.) 521, 34 OhCirDec 746.
Ark 528, 204 SW 973. South Carolina. Nelson v. Atlan-
Idaho. State v. Boyles, 34 Idaho tic, Gulf & Pacific Co., 107 SC 1, 92
283, 200 P 125. SE 194.
255 SUBJECT-MATTER § 75
the court to caution the jury against quotient verdicts,83 com-
promise verdicts,84 and verdicts by lot.86
But the court should not require the juror to yield an honest
conviction after consultation and deliberation.86 Yet an instruc-
tion suggests disagreement which tells the jury that no juror
should consent to a verdict which did not meet with the approval
of his own judgment.87
It is prejudicial error for the court to instruct that "if a
majority are for the defendant, the minority ought to doubt
the correctness of their judgment."88 But the same court held
that the following instruction was proper: "If a majority are for
the defendant, the minority ought to seriously ask themselves
whether they may not be reasonable and ought to doubt the cor-
rectness of their judgment/'89
Palpably erroneous is an instruction that the reasonable doubt
of one juror would call for the acquittal of the accused. This
would result only in a hung jury preventing conviction.90 It was
clearly erroneous in a criminal case for the court to tell the
jury that if they couldn't agree upon a verdict to return a verdict
of guilty with a certificate that they could not agree.91 It is
proper upon request in a criminal case, for the court to charge
the jury as to the unanimity of their verdict, if the language
Utah. State v. Shaw, 59 Utah 536, Illinois. Gehrig v. Chicago & A.
205 P 339. R. Co., 201 IllApp 287.
Washington. J. L. Mott Iron Pennsylvania. Commonwealth v.
Works v. Metropolitan Bank, 90 Pulemena, 113 PaSuperCt 430, 173
Wash 655, 156 P 864. A 462.
Wyoming-. Harris v. State, 23 8S J. F. McGehee & Co. v. Fuller,
Wyo 487, 153 P 881. 169 Ark 920, 277 SW 39.
83 Benjamin v. Helena Light & 89 Midland Valley R. Co. v. Bark-
Ry. Co., 79 Mont 144, 255 P 20, 52 ley, 172 Ark 898, 291 SW 431.
ALR 33; Forrest v. Turlay, 125 Or 90 Alabama. Smith v. State, 197
251, 266 P 229. Ala 193, 72 S 316; Whittle v. State,
84 Ginsberg v. Myers, 215 Mich 205 Ala 639, 89 S 43; Johnson v.
148, 183 NW 749; Cartee v. State, State, 215 Ala 643, 112 S 234;
162 Miss 263, 139 S 618. Strother v. State, 15 AlaApp 106,
85 Porter v. Davis, 118 SC 153, 72 S 566; Miller v. State, 16 AlaApp
110 SE 121; Smith v. State, 89 3, 74 S 840; Baader v. State, 16
TexCr 219, 230 SW 160; Newbill v. AlaApp 144, 75 S 820; Butler v.
State, 108 TexCr 473, 1 SW2d 626; State, 16 AlaApp 234, 77 S 72; Wood
Texas & Pacific Ry. Co. v. Dickey v. State, 17 AlaApp 654, 88 S 28;
(TexCivApp), 70 SW2d 614. Brown v. State, 18 AlaApp 284, 92
86 California. People v. Wilt, 173 S 16. See also Morrison v. Clark,
Cal 477, 160 P 561. 196 Ala 670, 72 S 305.
Indiana. Hinshaw v. State, 188 Florida. Roberts v. State, 90 Fla
Ind 447, 124 NE 458. 779, 107 S 242.
West Virginia. State v. McKin- Virginia. Peoples v. Common-
ney, 88 WVa 400, 106 SE 894. wealth, 147 Va 692, 137 SE 603.
87 Alabama. Hopkins v. State, 9 ' Lemon v. State, 166 Miss 548,
26 AlaApp 213, 155 S 891. 146 S 637.
;76
INSTRUCTIONS — RULES GOVERNING
256
is not such as to constitute in reality an invitation to the jurors
to disagree.92
§ 76. Form of verdict.
Although it is proper for the court to distribute blank ver-
dict forms to the jury, it is generally held that in the absence
of a request, it is not prejudicially erroneous to fail to distribute
the form.
It is proper for the court to submit blank forms of verdict
for the jury to fill out in accordance with their findings.93 But
it is generally held not ground for reversal to fail to submit the
form in the absence of request to do so.94
Most of the cases deciding rules of instructions on the form
of verdicts are criminal cases. In criminal cases, the forms of
verdict should cover every kind of verdict that the jury could
return under the evidence.95 For example, in a prosecution for
rape, there should be a form submitted for assault with intent
92 State v. Joseph, 100 WVa 213,
130 SE 451.
33 Alabama. Howell v. Smith, 206
Ala 646, 91 S 496.
Arkansas. Wofford v. De Queen
Real Estate Co., 141 Ark 310, 216
SW 710; Ellis v. State, 144 Ark
504, 222 SW 1058.
Georgia, Turner v. State, 20 Ga
App 165, 92 SE 975; Loyd v. State,
26 GaApp 259, 106 SE 601.
Illinois. Douvia v. Ottawa, 200
IllApp 131.
Iowa. State v. Butler, 186 la 1247,
173 NW 239 (four forms).
Kentucky. Lewis v. Common-
wealth, 237 Ky 786, 36 SW2d 639.
Ohio. Minims v. State, 16 OhSt
221; Rheinheimer v. Aetna Life Ins.
Co., 77 OhSt 360, 83 NE 491, 15 LRA
(N. S.) 245; Ross v. State, 22 OhApp
304, 153 NE 865; Bethel v. Taxicabs
of Cincinnati, 30 ONP (N. S.) 425;
Balser v. Roland, 5 OLA 324.
Vermont. State v. Montifoire, 95
Vt 508, 116 A 77.
94 Illinois. Triggs v. Mclntyre,
115 IllApp 257.
Missouri. McCrary v. Missouri,
K. & T. R. Co., 99 MoApp 518, 74
SW2.
New Mexico. Territory v. Mc-
Farlane, 7 NM 421, 37 P 1111.
95 California. People v. Pratt, 67
CalApp 606, 228 P 47.
It is not error to fail to submit
form for petit larceny where grand
larceny is charged. People v. Rivera,
57 CalApp 447, 206 P 897.
Georgia. It is not error to fail
to give form for acquittal required
where defendant charged with se-
duction admitted guilt of fornica-
tion. Swords v. State, 27 GaApp
597, 109 SE 512.
Illinois. People v. Doras, 290 111
188, 125 NE 2.
Indiana. Cronin v. State, 189 Ind
568, 128 NE 606.
A verdict, however informal, is
good if the court understands it.
It is to have a reasonable intend-
ment, and is to receive a reasonable
construction, and is not to be in-
validated except from necessity.
Callender v. State, 193 Ind 91, 138
NE 817.
Iowa. State v. Miller, 175 la 210,
157 NW 131.
Ohio. Failure to submit form for
acquittal was not error where there
was evidence of defendant's confes-
sion and his own testimony showing
unlawful homicide. Ross v. State,
22 OhApp 304, 153 NE 865.
Texas. Oats v. State, 51 TexCr
257 SUBJECT-MATTER § 76
to commit rape where there is evidence of the lesser offense.96
Where homicide is charged in the indictment and there is evi-
dence under which the crime may be reduced to manslaughter, a
form for that crime should be submitted.97
If the indictment contains more than one count, each charging
separate offenses, the jury should be instructed to state in their
verdict upon which count they render it.98 But if the court
has given one instruction as to second degree murder, and after-
ward instructs on first degree murder and manslaughter, it is
unnecessary for the court to repeat the instruction relative to
second degree murder.99 A verdict of guilty of murder in the
first degree should not be set aside for failure of the trial court
to submit to the jury, with other forms of verdict, a form of not
guilty, where, in argument to the jury, counsel for the accused,
for the purpose of the record, had entered a plea of guilty, and
stated to the jury that the only question submitted was that of
recommending mercy, and where the uncontradicted evidence
established guilt.1 Where the court submitted forms embracing
all the hypotheses of the case, the objection was untenable that
the court said to the jury that the verdict "will" be in one of the
designated forms, rather than that it "may" be.2
Where the jury has nothing to do with the fixing of the pun-
ishment, they should not be reminded of the penalty or punish-
ment on conviction.3 In jurisdictions where the jury fix the
punishment, the verdict so submitted should provide therefor4
449, 103 SW 859; Cupp v. State, 127 Idaho. State v. Altwatter, 29 Ida-
TexCr 10, 74 SW2d 701. ho 107, 157 P 256.
West Virginia. State v. Parsons, Iowa. State v. O'Meara, 190 la
90 WVa 307, 110 SE 698. 613, 177 NW 563.
96Cronin v. State, 189 Ind 568, Kansas. State v. Bell, 107 Kan
128 NE 606. See also Wade v. 7Q7 193 P 373
^E^fiWm"!* M£tnfs £"* '• Stot* 123
125 NE 2. See Riley v. State, 127 Miss 546, 86 b ^41.
T'exCr 267, 75 SW2d 880. Ohl°- Capassa v. State, 1 OLA
98 Indiana. Wrench v. State, 198 505-
Ind 61 152 NE 274. Except in prosecutions for first
New' Jersey. State v. Dtmlap, 103 deSre? murder or burglary of an
NJL 209 136 A 510. inhabited dwelling, the court should
Texas.' Kennedy v. State, 102 Tex charge the jury that in the determi-
Cr 374 277 SW 1084. nation of guilt they must not con-
99 Commonwealth v. Vasbinder, sider the punishment provided by
292. Pa 206 141 A 476. statute, and counsel need not call
1 State v. Wells, 134 OhSt 404, tne court's attention to the omis-
13. OhO 12, 17 NE2d 658. sion to so charge. Moon v. State,
2 Blalock v. State, 148 Miss 1, 113 34 OLE 352.
S 627. 4 Illinois. People v. Robertson,
» Alabama. Hogg v. State, 18 210 IllApp 234.
AlaApp 179, 89 S 859. Kentucky. See also Goins v. Com-
§ 76 INSTRUCTIONS — RULES GOVERNING 258
and give a form for assessing maximum and minimum
punishment.5
Other jurisdictions allow the jury to recommend punishment
or suggest the exercise of mercy to the court in fixing the
punishment. The jury should be acquainted with rights in these
particulars.6 In New Jersey the court may inform the jury, with
or without request, as to the power of supervision of court of
pardons over defendant if they find him guilty of murder with
recommendation of imprisonment for life.7
Where acquittal is on the ground of insanity, the jury should
be instructed to state that fact in their verdict.8
Under the parole act of Illinois the jury should, on a verdict
of guilty, find the age of the accused.9
In civil law cases, it would seem proper to instruct the jury
to indicate by their verdict whether the damages awarded by
them are only actual damages, or both actual and exemplary
damages.10 The defendant should raise the question of the in-
consistency of a verdict at the time the verdict is returned
so as to give the trial judge an opportunity to correct any error
in respect thereto, and the denial of a motion for new trial on
account of such inconsistency, is not abuse of discretion.1 r
monwealth, 167 Ky 603, 181 SW Ohio. Howell v. State, 102 OliSt
184. 411, 131 NE 706, 17 ALR 1108; Reh-
New Jersey. State v. Carrigan, feld v. State, 102 OhSt 431, 131 NE
93 NJL 268, 108 A 315. 712.
Oklahoma. Rambo v. State, 13 Oregon. State v. Howard, 102 Or
OklCr 119, 162 P 449. 431, 203 P 311.
5 Thompson v. State, 151 Ga 328, 7 State v. Rombolo, 89 NJL 565,
106 SE 278; Yaughan v. State, 26 99 A 434.
GaApp 639, 107 SE 389. 8 Thomson v. State, 78 Fla 400,
6 Georgia. Moore v. State, 150 83 S 291.
Ga 679, 104 SE 907; Winder v. 9 People v. Flynn, 302 111 549, 135
State, 18 GaApp 67, 88 SE 1003; NE 101.
Yaughan v. State, 26 GaApp 639, ' ° Richardson v. Atlantic Coast
107 SE 389; Varner v. State, 27 Line R. Co., Ill SC 359, 98 SE 132.
GaApp 291, 108 SE 80. ' < Feaver v. Railway Express
New Jersey. State v. Martin, 92 Agency, 324 Mass 165, 85 NE2d 322.
NJL 436, 106 A 385, 17 ALR 1090;
State v. Carrigan, 94 NJL 566, 111
A 927.
CHAPTER 4
FORM AND ARRANGEMENT
Section.
90. Form
arrangement in
and
general.
91. Written and oral instructions.
92. Marking and signing instruc-
tions.
93. Reading instructions to the
jury.
94. Clearness of expression.
95. Repetition of instructions in
civil cases.
96. Repetition of instructions in
criminal cases.
97. Limitation on number of in-
structions.
98. Reference to pleadings for is-
sues.
99. Reference to indictment or in-
formation.
100. Reference to other instruc-
tions.
101. Reading from statutes or ordi-
nances.
Section.
102. Quotations from decisions.
103. Misleading instructions.
104. Contradictory instructions.
105. Undue prominence to particu-
lar features in civil cases.
106. Undue prominence to matters
of evidence in civil cases.
107. Undue prominence in criminal
cases.
108. Argumentative instructions in
civil cases.
109. Argumentative instructions in
criminal cases.
110. Appeals to sympathy or preju-
dice.
111. Special verdicts, interrogato-
ries, and findings — Prepara-
tion, form, and submission.
112. Special verdicts — Instructions
concerning.
§ 90. Farm, and arrangement in general.
Great importance is not attached to the form of instructions
provided they are germane to the issues and are correct state-
ments of the law.
The criterion by which an instruction is to be tested is that
the instruction convey to the jury, in language understandable
by ordinary men, the applicable law to the end that the jury
arrive at a just verdict,1 Hence, great importance is not at-
tached to the mere form of the instructions, so long as the
instructions are pertinent to the issues and are correct state-
ments of the law.2
1 Reivitz v. Chicago Rapid Transit
Co., 327 111 207, 158 NE 380; State
v. Allister, 317 Mo 348, 295 SW
754; Osborne v. Montgomery, 203
Wis 223, 234 NW 372.
2 Federal Smith v. Bank of Glade
Spring, 12 F2d 535.
California. Ritchey v. Watson,
204 Cal 387, 26S P 345.
Florida. Hutehins & Co. v. Sher-
man, 82 Fla 167, 89 S 430.
Georgia. The fact that nicety of
verbal criticism might suggest the
use of a particular word more ap-
propriate under the circumstances
than the special word or phrase em-
ployed by the judge in his charge
is not ground for new trial where
259
§90
INSTRUCTIONS — BULBS GOVERNING
260
There is no fixed rule as to the order of the instructions. This
matter is largely discretionary with the court.3
Similarly, there seems to be no fixed rule as to the separa-
tion of the charge into individual instructions. If there is a
rule, it would seem to be again whether the questioned instruc-
tion is misleading to ordinary men.
In an oral charge, the jury would not know when one in-
struction ended and another began, unless the judge told them
so or numbered the instructions. A single instruction is a state-
ment of the issue of fact and the applicable law to that issue.
There may be only one proposition of law applicable or there may
be more than one.4 Yet where a charge is complete, accurate
and pertinent in itself, it is not erroneous because it fails to
include an instruction which would be appropriate.5
comparing- the complaint with the
context, it is apparent that the sense
in which the inappropriate word was
used is unmistakable, and the in-
struction, as it must have been un-
derstood by the jury, is pertinent
and correct. Orr v. Planters' Phos-
phate & Fertilizer Co., 8 GaApp 59,
68 SE 779.
Illinois. People v. Cash, 326 111
104, 157 NE 76.
Kentucky. Whitaker v. Common-
wealth, 188 Ky 95, 221 SW 215, 10
ALE 145.
Minnesota. Flick v. Ellis-Hall Co.,
138 Minn 364, 165 NW 135.
An instruction is not necessarily
required to be given merely because
it is taken from a decision of an
appellate court. Carter v. Duluth
Yellow Cab Co., 170 Minn 250, 212
NW 413.
North Carolina. Deaver v. Deaver,
137 NC 240, 49 SE 113.
Ohio. Behm v. Cincinnati, D. &
T. Trac. Co., 86 OhSt 209, 99 NE
383.
Texas. Facts, if any, constituting
contributory negligence should be
grouped. Texas & N, 0. R. Co. v.
Harrington (TexCivApp), 209 SW
685.
West Virginia. McClintic v. Ochel-
tree, 4 WVa 249.
3 Indiana. Pittsburgh, C., C. &
St. L. R. Co. v. Cioffi, 81 IndApp
424, 143 NE 523.
Ohio. Beck v. Beagle, 28 OhApp
508, 162 NE 810.
Washington. Hutchins v. School
Dist. No. 81, 114 Wash 548, 195 P
1020.
4 Arkansas. Missouri Pacific R.
Co. v. Kennedy, 153 Ark 77, 239 SW
376, 35 ALR 753.
Indiana. Gemmill v. Brown, 25
IndApp 6, 56 NE 691.
Kentucky. If an instruction
groups several propositions together,
but guides the jury so as to show
under what circumstances a plain-
tiff may recover, it is not open to
exception. Louisville & N. R. Co.
v. Veach, 20 KyL 403, 46 SW 493.
5 California. Smith v. Pacific
Greyhound Corp., 139 CalApp 696,
35 P2d 169.
Georgia. Jones v. Lanham, 147
Ga 241, 93 SE 399 (brevity not de-
fect where contentions are definitely
and completely stated); Johnson v.
State, 150 Ga 67, 102 SE 439; Lump-
kin v. State, 152 Ga 229, 109 SE
664; Grant v. State, 152 Ga 252, 109
SE 502; Smith v. Duhart, 152 Ga
554, 110 SE 301; Peeples v. Rudulph,
153 Ga 17, 111 SE 548; Elliott v.
Gary, 153 Ga 665, 112 SE 900; Conk-
lin v. State, 21 GaApp 399, 94 SE
600; Crone v. State, 22 GaApp 636,
97 SE 83; Easterling v. State, 23
GaApp 92, 97 SE 553; Ray v. State,
23 GaApp 124, 97 SE 555; Gunn v.
State, 23 GaApp 545, 99 SE 62;
261
FORM AND ARRANGEMENT
• 90
Although the judge is not required to cover all the issues
of fact in a single instruction,6 this would be required in the
hypothetical type of instruction. Even in other types of in-
structions, some courts have declared that it is ordinarily un-
necessary for instructions bearing on different issues to be
Gardner v. State, 25 GaApp 11, 102
SE 376; Troup v. State, 26 GaApp
623, 107 SE 75; Neal v. State, 26
GaApp 647, 106 SE 913; Hawks v.
Moore, 27 GaApp 555, 109 SE 80-7;
Smith v. State, 27 GaApp 654, 110
SE 423; Savannah. & A. Ry. v.
Rowell, 28 GaApp 191, 110 SE 513;
Ray v. Warren, 28 GaApp 663, 112
SE 831.
Kentucky. Held v. Commonwealth,
183 Ky 209, 208 SW 772.
Massachusetts. Commonwealth v.
Mara, 257 Mass 198, 153 NE 793.
West Virginia. State v. White,
81 WVa 516, 94 SE 972,
6 Arkansas. George v. State, 148
Ark 638, 231 SW 9; Winn v. Jack-
son, 158 Ark 644, 245 SW 812.
California. Hall v. Steele, 193
Cal 602, 226 P 854.
Where the court, in a damage
case, undertakes to embody the
whole law of the case in a single
continuous instruction wherein the
doctrine of last clear chance and the
question of concurrent and con-
temporaneous negligence of the in-
jured person are commingled, the
result is confusing and misleading,
and the instruction is erroneous.
Carrillo v. Helms Bakeries, 6 CalApp
2d 299, 44 P2d 604.
Colorado. The entire law on any
one proposition so far as practicable
should be embodied in one instruc-
tion. Rocky Mountain Motor Co. v.
Walker, 71 Colo 53, 203 P 1095.
Georgia. Vickers v. Robinson, 157
Ga 731, 122 SE 405.
The court should charge separate-
ly on voluntary manslaughter and
justifiable homicide. Deal v. State,
145 Ga 33, 8S SE 573.
Idaho. Kelly v. Troy Laundry Co.,
46 Idaho 214, 267 P 222.
Illinois. People v. Haensel, 293
111 33, 127 NE 181; Gustafson v.
Peterson, 203 IllApp 242.
Indiana. Marmon Motor Car Co.
v. Schafer, 93 IndApp 588, 178 NE
863; Terre Haute, I. & E. Trac. Co.
v. Wallace, 95 IndApp 395, 180 NE
485; H. E. McGonigal, Inc. v. Ether-
ington, 118 IndApp 622, 79 NE2d
777.
Iowa. State v. Reynolds, 201 la
10, 206 NW 635; State v. Reed, 205
la 858, 216 NW 759.
Kentucky. Graham's Admr. v. Illi-
nois Cent. R. Co., 185 Ky 370,
215 SW 60; Fullenwider v. Brawner,
224 Ky 274, 6 SW2d 264.
It is better practice to include in
one instruction the facts constituting
negligence and in another facts con-
stituting contributory negligence.
Louisville Ry. Co. v. Osborne, 171
Ky 348, 188 SW 419.
Missouri. Foster v. Kansas City
Rys. Co. (Mo), 235 SW 1070; Fen-
ton v. Hart (MoApp), 73 SW2d
1034.
Montana. Allen v. Bear Creek
Coal Co., 43 Mont 269, 115 P 673.
Nebraska. In re LyelPs Estate,
116 Neb 827, 219 NW 189.
Ohio. Curlis v. Brown, 9 OhApp
19, 31 OhCtApp 364; Cincinnati In-
terurban Co. v. Haines, 8 OhCirCt
(N. S.) 77, 18 OhCirDec 443; Scott
v. Emswiler, 26 OhCirCt (N. S.)
502, 28 OhCirDec 40.
Oklahoma. Chitwood v. Palmer,
101 Okl 300, 225 P 969; Tulsa v.
Lloyd, 129 Okl 27, 263 P 152;
Sharum v. Sharum, 121 Okl 53, 247
P 97.
Texas. Ritz v. First Nat. Bank
(TexCivApp), 234 SW 425; Pearson
v. Texas & N. O. Ry. Co. (TexCiv
App), 238 SW 1108.
It is not error to submit the dif-
ferent items of damage for personal
injury conjunctively in the main
charge. Melton v. Manning (Tex
Civ App), 216 SW 488.
91
INSTRUCTIONS — RULES GOVERNING
262
classified and arranged or set out in separate and distinct
paragraphs.7
§ 91. Written and oral instructions.
Constitutions, statutes, or court rules determine whether in-
structions must be in writing. As to the writing requirement,
some jurisdictions draw a distinction between requested instruc-
tions and general charges, while others distinguish between crim-
inal and civil cases.
At one extreme, a state constitution or statute may require
that all instructions be in writing, and that there can be no
waiver. At the other extreme, the rule may be that instructions
are to be given orally, at the court's discretion, even though both
parties have requested a writing.8 But most provisions seem
to require instructions to be in writing,9 unless waived.10 The
Washington. O'Connell v. Home
Oil Co., 180 Wash 461, 40 P2d 991.
7 Iowa. Meyer v. Boepple Button
Co., 112 la 51, 83 NW 809. But
where several items of negligence
are charged against the defendant,
they should be set forth in separate
instructions, and it is error to group
them. Leete v. Hayes, 211 la 379,
233 NW 481.
New York. People v. Radcliffe,
232 NY 249, 133 NE 577.
South Carolina. State v. Blanden,
177 SC 1, 180 SE 681.
Contra: Ohio. Jones v. Peoples
Bank Co., 95 OhSt 253, 116 NE 34.
8 In Maryland, there is no rule
positively requiring instructions to
be written, although the courts de-
clare it to be the better practice
to reduce them to writing. Winslow
v. Atz, 168 Md 230, 177 A 272.
In North Dakota, it is not error
where oral instructions are read to
the jury, for the trial court, sua
sponte, to submit to the jury the
identical instructions in writing.
State v. Simpson, 78 ND 571, 50
NW2d 661.
9 Federal. It is in the discretion
of the federal court to give partly
written and partly oral instructions.
Warren Bros. Co. v, Wright, 152
CCA 121, 239 F 71.
Alabama. Richardson v. State,
16 AlaApp 81, 75 S 629.
California. People v. Payne, 8
Cal 341.
Florida. McKinney v. State, 74
Fla 25, 76 S 333 (on capital charge
must be wholly in writing).
Georgia. It is not sufficient to di-
rect official stenographer to tran-
scribe oral charge. Brindle v. State,
17 GaApp 741, 88 SE 460.
Illinois. People v. Grandstaff, 324
111 70, 154 NE 448; People v. Kelly,
347 111 221, 179 NE 898, 80 ALR
890; Jarnecke v. Chicago Consol.
Trac. Co., 150 IllApp 248; Hughes v.
Eldorado Coal & Min. Co., 197 111
App 259.
The right is statutory and not
constitutional in Illinois. People v.
Rettich, 332 111 49, 163 NE 367.
See Welch v. Chicago, 236 IllApp
520, affd. in 323 111 498, 154 NE
226.
Indiana. Lindley v. State, 198 Ind
360; 153 NE 772.
Under a statute requiring a court
to give general written instructions
it is improper to read to the jury
the statute on which the action is
based. It should be incorporated in
the instructions. Chicago & E. R.
Co. v. Murphy, 54 IndApp 531, 101
NE 829.
Iowa. Alley, Greene & Pipe Co,
v. Thornton Greenery Co., 201 la
621, 207 NW 767.
263
FORM AND ARRANGEMENT
891
same would be true where the requirement is set forth in court
rules. ! ! Waiver may be express or by silence, that is, acqui-
escence in the court's oral charge.
Some jurisdictions have statutes requiring' instructions to
be in writing if so requested by either party or both. f 2
Louisiana. State v. Rini, 151 La
163, 91 S 664.
Missouri. Belk v. Stewart, 160
MoApp 706, 142 SW 485; Fenton
v. Hart (MoApp), 73 SW2d 1034.
Oklahoma. The right is statutory
in criminal cases. Howard v. State,
39 OklCr 336, 265 P 149.
Tennessee. Munson v. State, 141
Tenn 522, 213 SW 916.
Texas. Bloxom v. State, 86 TexCr
562, 218 SW 1068; Howard v. State,
90 TexCr 270, 234 SW 895; Connally
v. State, 90 TexCr 284, 234 SW
886; Riley v. State, 92 TexCr 237,
243 SW 467; Roberts v. State, 98
TexCr 202, 265 SW 385.
1 ° California. People v. King, 77
CalApp 434, 246 P 822.
Illinois. Cutter v. People, 184 111
395, 56 NE 412.
Kentucky. Chesapeake & 0. Ry.
Co. v. Commonwealth, 184 Ky 1, 210
SW 793; Whitaker v. Common-
wealth, 188 Ky 95, 221 SW 215, 10
ALR 145; Miller v. Nodi, 193 Ky
659, 237 SW 373; Gipson v. Com-
monwealth, 251 Ky 793, 66 SW2d
16.
In Kentucky, the defendant in a
criminal case is entitled to instruc-
tions in writing by virtue of the
code, but this right may be waived,
and it is waived either by agreeing
to the giving of oral instructions,
or by failing to object thereto.
Spence v. Commonwealth, 181 Ky
206, 204 SW 80. See also Lyttle v.
Commonwealth, 195 Ky 729, 243 SW
1037; Thompson v. Commonwealth,
197 Ky 188, 246 SW 435.
Nevada. State v. Clarke, 48 Nev
134, 228 P 582 (parties may consent
to oral instructions).
North Dakota. The giving of oral
instructions is authorized only where
the parties voluntarily assent there-
to, and the consent should be en-
tered on the minutes at such time,
and in such manner as not to oper-
ate to the prejudice of the right of
either party. Forszen v. Hurd, 20
ND 42, 126 NW 224.
Oklahoma. Elms v. State, 53 Okl
Cr 268, 10 P2d 728.
The right to have instructions re-
duced to writing was held waived
by failure to make proper request
therefor. Ferrero v. State, 64 Okl
44, 166 P 101.
Texas. Pecht v. State, 80 TexCr
452, 192 SW 243; Anthony v. State,
90 TexCr 351, 235 SW 578 (waiver
in Texas in misdemeanor cases) ;
Riley v. State, 92 TexCr 237, 243
SW 467; Dalton v. Dalton (TexCiv
App), 143 SW 241.
Washington. In Washington the
parties may stipulate that the in-
structions may be made partly oral
and partly written. Wheeler v.
Hotel Stevens Co., 71 Wash 142,
127 P 840, AnnCas 1914C, 576.
The statutory requirement that
instructions shall be in writing may
be waived by the accused in a felony
case. State v. Andrews, 71 Wash
181, 127 P 1102.
1 * Heyl v. Waggoner, 58 SD 420,
236 NW 375; State v. Linden, 171
Wash 92, 17 P2d 635.
1 2 Alabama. Where there is no
request the general charge may be
given orally and taken down by re-
porter. Blackmon v. State, 201 Ala
53, 77 S 347.
Arkansas. Arnold v. State, 71
Ark 367, 74 SW 513. See also Reed
v. Rogers, 134 Ark 528, 204 SW
973; Trimble v. State, 150 Ark 536,
234 SW 626; Tarkington v. State,
154 Ark 365, 242 SW 830.
Georgia. Under the Georgia code
the trial judge on request of counsel
must reduce his charge to writing
and read it to the jury and as soon
as the charge has been delivered
give it to the clerk to be filed, and
§91
INSTRUCTIONS — RULES GOVERNING
264
If a writing is required, what kind of writing will satisfy the
requirement? In Wisconsin, the statute permits a writing before
delivery or that the instructions be taken down by the court re-
porter, transcribed and filed.13 In other jurisdictions, the taking
in shorthand of a charge delivered orally is not ordinarily suf-
ficient, * 4 though they afterward be reduced to writing from the
stenographer's notes.15
It is not required that the instruction shall be written in ink ;
and instructions written with a lead pencil ' 6 or a typewriter will
suffice,17 or the instructions may be printed or hectograph ed. ' 8
In Ohio, where a party is entitled to a written special charge,
earlier decisions declared that the trial judge cannot orally
qualify, modify, or explain the written charge.19 But later
decisions limit this prohibition to the general charge only.20
Also, it is error for the trial judge to read part of general
charge written for the case being tried and part of the manu-
script of another judge's charge.21
a failure to do so is reversible er-
ror unless the evidence demanded
the verdict. Forrester v. Cocke, 6
GaApp 829, 65 SE 1063.
Request must be made before
argument begins. Ashley-Price Lbr.
Co. v. Henry, 23 GaApp 93, 98 SE
185.
Indiana. Lett v. Eastern Moline
Plow Co., 46 IndApp 56, 91 NE 978.
Ohio. Blackburn v. State, 23 Oh
St 146; Maranda v. State, 17 OhApp
479; Umbenhauer v. State, 4 OhCir
Ct 378, 2 OhCirDec 606; Pittsburgh
& L. E. Ry. Co. v. Bishop, 13 Oh
CirCt 380, 7 OhCirDec 73.
Oklahoma. Lilly v. Hanson, 171
Okl 604, 43 P2d 405.
Pennsylvania. Oral charge is not
erroneous in absence of request.
Sgier v. Philadelphia & R. Ry. Co.,
260 Pa 343, 103 A 730.
Texas. In Texas it is necessary
to request a written charge in a
misdemeanor case. Odom v. State,
82 TexCr 580, 20'0 SW 833.
1 3 Penberthy v. Lee, 51 Wis 261,
8 NW 116.
1 4 Arkansas. Burnett v. State, 72
Ark 398, 81 SW 382.
Indiana. Lesueur v. State, 176
Ind 448, 95 NE 239.
Montana. State v. Fisher, 23
Mont 540, 59 P 91$.
Washington. But see State v.
Mayo, 42 Wash 540, 85 P 251, 7
AnnCas 881.
'5Lindley v. State, 198 Ind 360,
153 NE 772.
1 6 Harvey v. Tama Co., 53 la 228,
5 NW 130.
{ 7 Kinyon v. Chicago & N. W. Ry.
Co., 118 la 349, 92 NW 40, 96 AmSt
382.
1 8 State v. Burlison, 315 Mo 232,
285 SW 712.
l9Pendleton St. R. Co. v. Stall-
mann, 22 OhSt 1; P'owers v. Hazel-
ton & L. R. Co., 33 OhSt 429; House-
holder v. Granby, 40 OhSt 430; Cald-
well v. Brown, 9 OhCirCt 691, 6
OhCirDec 694; Rupp v. Shaffer, 21
OhCirCt 643, 12 OhCirDec 154; Diehl
v. Cincinnati Trac. Co., 29 OhCtApp
369, 35 OhCirDec 581; Cincinnati v,
Lochner, 8 ONP 436, 10 OhDec 596,
11 OhDec 119.
Oral explanation is not reversible
error unless prejudicial. Johnson
v. Cincinnati, 20 OhCirCt 657, 11
OhCirDec 318.
20 Cincinnati St. Ry. Co. v. Adams,
33 OhApp 311, 169 NE 480; Pratt
v. Byers, 41 OhApp 112, 179 NE
747.
21 Ohio & M. R. Co. v. Sauer, 25
OhBull 172.
265 FOEM AND ARRANGEMENT § 91
If the requirement applies to instructions, it sometimes be-
comes a question of whether the judge's oral statements were
really instructions. During the voir dire examination of jurors,
the court's remarks are not considered instructions.22 The re-
quirement does not apply to directions to the jury as to their
duties in relation to the answering of special interrogatories.23
Merely informing the jury that a motion had been sustained to
withdraw a certain issue in a will contest action is not an in-
struction.24
It is not a violation of the statute for the court orally to tell
the jury at the time certain evidence is admitted that it is for
the purpose of impeachment.25 Nor is there a violation where
the court orally calls the jury's attention, after instructions have
been given and arguments made, to the different forms of blanks
handed them for verdict.26 It is not a violation of the require-
ment for the court to remark in passing upon an objection to
the argument of counsel that he might ask the jury to disregard
whatever was said in argument that was not supported in the
evidence.27
The requirement of writing applies in strictness to the charge
proper and does not obtain as to the admonition of the court as
to the conduct of the jury,28 or to statements of the court that
there is a lack of evidence on a particular point,29 or that evi-
dence was admitted only for a stated purpose,30 or to disregard
items stricken from the pleadings,3 ! or evidence withdrawn from
the jury,32 or as to number of jurors required to make a verdict
in a state where less than entire body may do so,33 or as to the
form of the verdict,34 or that the jury have nothing to do with
22 State v. Greenlee, S3 NM 449, of evidence read to jury not evi-
269 P 331; Chase Bag Co. v. Lon- dence).
goria (TexCivApp), 45 SW2d 242. Illinois. Jent v. Old Ben Coal
23 Lett v. Eastern Moline Plow Corp., 222 IllApp 380.
Co., 46 IndApp 56, 91 NE 978. Kentucky. Rose v. Commonwealth,
24Huntington v. Hamilton, 118 181 Ky 337, 205 SW 326; Anderson
IndApp 88, 69 NE2d 134, 73 NE2d v. Commonwealth, 205 Ky 369, 265
352. SW 824.
25 People v. Winchester, 352 111 Nebraska. Granimer v. State, 103
237, 185 NE 580. Neb 325, 172 NW 41, reh. den. 103
26Keeney v, Angell, 92 Colo 213, Neb 325, 174 NW 507.
19 P2d 215. Washington. State v. Thompson,
27 Schluraff v. Shore Line Motor 113 Wash 696, 195 P 553.
Coach Co., 269 IllApp 569. 3 1 Western Coal & Min. Co. v.
25 State v. Lewis, 52 Mont 495, Norvell, 212 IllApp 218.
159 P 415. 32 State v. Brennan, 185 la 73,
26 State v. Crofton, 271 Mo 507, 169 NW 744.
197 SW 136. 33 Cravens v. Merritt, 178 Ky 727,
so Florida. Barton v. State, 72 199 SW 785.
Fla 408, 73 S 230 (shorthand notes 34 Illinois. Aurora Trust & Sav.
§ 92 INSTRUCTIONS— RULES GOVERNING 266
the punishment,35 or as to the remarks of the court in sending
the jury back for further deliberations,36 or as to answers of
judge to questions as to the punishment attending certain
verdicts.37
In jurisdictions where oral charges are permitted, the
remedy for a misleading charge is to ask a written explanatory
charge.38
The oral instruction should not be given in the absence of
parties or counsel.39
§ 92. Marking and signing instructions.
Instructions must be marked or signed as required by the
statute or procedure of the jurisdiction.
A statute requiring instructions given by the court to be
signed by the judge and filed as part of the record is manda-
tory.40 The inadvertence of the judge to sign instructions can-
not be remedied by a mine pro tune entry, and the charge
therefore is not part of the record on appeal.4 l
In order to avoid confusion, it is the better practice to num-
ber the written instructions given.42 On the other hand, a
defendant in a criminal case is not prejudiced by the fact that
the court numbered the instructions, if the charge was other-
wise a connected and continuous narrative in accordance with
the statute.43
In jurisdictions requiring the instructions offered by the
party to be marked "given" or "refused," the effect of the
failure of the court to mark the instruction either way, is the
same as if they had been formally marked refused.44 The mark-
ing "given" or "refused" should be so made as not to mislead
the jury. There is a case of this character where the court
Bank v. Fidler, 200 IllApp 233; Peo- 39 Yarn v. Gonzales (TexCivApp),
pie v. Shapiro, 207 IllApp 130. 193 SW 1132.
Indiana. Faulkenberg v. State, 4O Indiana. Hadley v. Atkinson,
197 Ind 491, 151 NE 382. 84 Ind 64.
Montana. State v. Schaffer, 59 Maryland. Bracey v. McGary, 134
Mont 463, 197 P 986. Md 267, 106 A 622.
Wisconsin. High v, Johnson, 28 Texas. Payne v. State, 83 TexCr
Wis 72; State v. Glass, 50 Wis 218, 287, 202 SW 958. But see Mc-
6 NW 500, 36 AmRep 845. Donald v. Axtell (TexCivApp), 218
35 State v. Jensen, 114 Wash 401, SW 563.
195 P 238. 4I Bottorff v. Bottorff, 45 IndApp
3 6 Bush v. People, 68 Colo 75, 187 692, 91 NE 617.
P 528. 42Hendrix v. State, 21 AlaApp
37 State v. Skinner, 101 WVa 632, 517, 110 S 167.
133 SE 371. 43 People v. Wynekoop, 35£ 111
38 Birmingham Ry., Light & 124, 194 NE 276.
Power Co. v. Demmins, 3 AlaApp 4<* Calef v. Thomas, 81 111 478.
359, 57 S 404.
267 FORM AND ARRANGEMENT § 93
marked one form of verdict "give" and failed to mark the other
form. This was held prejudicial as amounting to a direction to
the jury to adopt the verdict bearing the notation.45
In jurisdictions which require requested instructions to be
signed by counsel, the requirement is generally held to be man-
datory and the court may refuse an instruction not so signed.46
The courts do not seem to be in agreement on whether the
court should inform the jury which party requested an instruc-
tion. An argument against revealing the requester is that the
jury may believe that it does not have the sanction of the trial
judge as a statement of the law that they are bound to fol-
low.47 In other jurisdictions, although the practice of informing
the jury which party requested an instruction is undesirable and
improper, it is not reversible error to do so.48
§ 93. Reading instructions to the jury.
Written instructions should be read to the jury by the judge
in open court and then delivered to them to be taken to the
jury room.
The instructions should be read to the jury in open court,49
by the judge.50 The reading may, however, be waived by the
parties51 or they may be read by counsel upon agreement of the
parties.52 But the practice of reading instructions by counsel
"is one which should not be resorted to except by consent of
counsel or by reason of some exigency" which must be shown.53
45 People v. Marks, 251 111 475, structions prepared by counsel and
96 NE 231. given are entitled to equal consider-
An instruction as to the forms of ation witli the general charge of the
verdict all on one sheet was held court and to enable them more thor-
not erroneous because the court oughly to comprehend the principles
wrote the word "given" in the of law applicable to the different
margin opposite the paragraph con- aspects of the case, by having their
taining the form to be used in case attention thus specially directed to
the accused was found guilty. Peo- the instructions. Alabama Great
pie v. Donaldson, 255 111 19, 99 NE Southern R. Co. v. Arnold, 80 Ala
62, AnnCas 1913D, 90. 600, 2 S 337.
46 Colorado. Mason v. Sieglitz, Eeading charge before argument
22 Colo 320, 44 P 588. is not mandatory. Robison v. State,
Indiana. Board of County Comrs. 77 TexCr 556, 179 SW 1157.
v. Legg, 110 Ind 479, 11 NE 612. so O'Dell v. Goff, 153 Mich 643,
Texas. St. Louis Southwestern R. 117 NW 59; Veneman v. McCurtain,
Co. v. Cleland, 50 TexCivApp 499, 33 Neb 643, 50 NW 955.
110 SW 122. s * Talty v. Lusk, 4 la 469.
47 Johnson v. Roberson, 88 GaApp 52 Leaptrot v. Robertson, 44 Ga
548, 77 SE2d 232. 46; O'Dell v. Goff, 153 Mich 643, 117
*» Hudson v. City of Cleveland, NW 59.
— OhApp — , 142 NE2d 535. - 53 O'Dell v. Goff, 153 Mich 643,
49 Reading the charges is calcu- 117 NW 59.
lated to impress the jury that in-
.94
INSTRUCTIONS — RULES GOVERNING
268
In Louisiana the court is not required to serve a copy of the
instructions requested by the state upon the defendant's attor-
ney prior to the argument.54
Where the court is requested to give written instructions
and to send the written instructions to the jury, the written
instructions given must be sent to the jury;55 but where the
law does not require the court, without request, to give the
charge in writing, and the court, without request therefor, gives
his charge in writing, the court may refuse to send his written
charge to the jury.56
§ 94. Clearness of expression.
The language of an instruction should be (1) clear, (2) and
should embody a definite and concise statement of the cause of
action and the issues involved, but (3) a charge is legally suffi-
cient if, as delivered, it is correct in substance and presents the
issues fairly to the jury.
(1) The instructions should be plain, simple, concise, direct,
unambiguous and consistent,57 and more especially so where
54 State v. Capaci, 179 La 462,
154 S 419.
55 Alabama Great Southern K. Co.
v. Arnold, 80 Ala 600, 2 S 337; Cone
v. Bright, 68 OhSt 543, 68 NE 3;
Harris v. Mansfield Ry.} Light &
Power Co., 4 OhApp 108, 21 OhCir
Ct (N. S.) 209, 26 OhCirDec 17;
Caldwell v. Brown, 9 OhCirCt 691,
6 OhCirDec 694; Foy v. Toledo
ConsoL St. By. Co., 10 OhCirCt 151,
6 OhCirDec 396.
Ohio statute requiring the written
charge to be sent to the jury does
not control the trial of cases in
federal courts in Ohio. Western Un-
ion Tel. Co. v. Burgess, 181 US 620,
45 LEd 1031, 21 SupCt 924, 12 OFD
668.
56 Kauffman Brew. Co. v. Betz,
8 OhCirCt (N. S.) 64, 18 OhCirDec
484; Pittsburgh & L. E. Ry. Co. v.
Bishop, 13 OhCirCt 380, 7 OhCirDec
73; Sherman v. Tucker, 16 OhCir
Dec (N. S.) 190, 31 OhCirDec 492.
«7 Alabama. Bailey v. State, 168
Ala 4, 53 S 296, 390 (incomplete
sentence); Marbury Lbr. Co. v.
Heinege, 204 Ala 241, 85 S 453 (el-
liptical) ; Nashville Broom & Supply
Co. v. Alabama Broom & Mattress
Co., 211 Ala 192, 100 S 132; Fuller
v. State, 16 AlaApp 163, 75 S 879
(elliptical instruction); Warsham v.
State, 17 AlaApp 181, 84 S 885
(elliptical in omitting negative) ;
Fuller v. Stevens (Ala), 39 S 623.
Instructions were properly refused
which failed to contain any proposi-
tion of law. Knight v. State, 160
Ala 58, 49 S 764.
Arkansas. Jonesboro, L. C. & E.
B. Co. v. Kirksey, 134 Ark 605, 135
Ark 617. 204 SW 208; Winn v. Jack-
son, 158 Ark 644, 245 SW 812.
California. Fitts v. Southern Pa-
cific Co., 149 Cal 310, 86 P 710, 117
AmSt 130; People v. Bickerstaff, 46
CalApp 764, 190 P 656; Hall v.
Steele, 193 Cal 602, 226 P 854.
Instructions should state rules of
law in general terms. Tower v.
Humboldt Transit Co., 176 Cal 602,
169 P 227.
Colorado. Rocky Mountain Motor
Co. v. Walker, 71 Colo 53, 203 P
1095.
Georgia. Evitt v. Evitt, 160 Ga
497, 128 SE 661; Whitehead v. Mal-
colm, 161 Ga 55, 129 SE 769.
Idaho. The court should state
propositions of law concisely and in-
269
FORM AND ARRANGEMENT
94
the case is close upon the evidence.58 A charge is open to criti-
cism which covers several distinct questions in a fragmentary
telligibly so that the jury may un-
derstand their meaning without in-
dulging in finely drawn out theories
as to what law is applicable to the
facts. State v. Marren, 17 Idaho
766, 107 P 993.
Illinois. People v. Levato, 330 111
498, 161 NE 731; Chicago City Ry.
Co. v. Sandusky, 99 IllApp 164,
affd. in 198 111 400, 64 NE 990;
Dodge v. Bruce, 208 IllApp 570.
Iowa. Dunning v. Burt, 180 la
754, 162 NW 23 (general terms);
Jensen v. Magnolia (Inc. Town of),
219 la 209, 257 NW 584.
Indiana. Washington Hotel Realty
Co. v. Bedford Stone & Constr. Co.,
195 Ind 128, 143 NE 156.
Kansas. Piehler v. Kansas City
Pub, Service Co., — Kan — , 226
SW2d 681.
Kentucky. Louisville & N. R. Co.
v. Moore, 150' Ky 692, 150 SW 849.
Maine. Bedell v. Androscoggin <&
K. Ry. Co., 133 Maine 268, 177 A
237.
Maryland. Weihenmayer v. Bit-
ner, 88 Md 325, 42 A 245, 45 LRA
446.
Michigan. Aikin v. Weckerly, 19
Mich 482,
Minnesota. Gaffney v. St. Paul
City Ry. Co., 81 Minn 459, 84 NW
304.
Missouri. Hegberg v. St. Louis &
S. F. R. Co., 164 MoApp 514, 147
SW 192; Smith v. Williams (Mo),
221 SW 360; Sturgis v. Kansas City
Rys. Co. (MoApp), 228 SW 861;
Gillette v. Laederich (MoApp), 242
SW 112; Lokey v. Rudy-Patrick Seed
Co. (MoApp), 285 SW 1028.
Montana. Fowlie v. Cruse, 52
Mont 222, 157 P 958; Lingquist v.
Seibold, 62 Mont 162, 199 P 709;
State v. Keays, 97 Mont 404, 34
P2d 855.
Ohio. Mansfield Public Utility &
Service Co. v. Grogg, 103 Oh 301,
133 NE 481; State v. Norman, 103
Oh 541, 134 NE 474,
Oklahoma. Hanson v. Kent &
Purdy Paint Co., 36 Okl 583, 129
P 7; Gransden v. State, 12 OklCr
417, 158 P 157.
Oregon. Rogers v. Wills, 92 Or
16, 179 P 676; Collins v. United
Brokers Co., 99 Or 556, 194 P 458.
Pennsylvania. Randolph v. Camp-
bell, 360 Pa 453, 62 A2d 60.
South Carolina. Ramer v. Hughes,
131 SC 488, 127 SE 565.
South Dakota. Wiggins v. Pay's
Art Store, 47 SD 443, 199 NW 122.
Texas. Allen v. Texas Trac. Co.
(TexCivApp), 149 SW 195; Ft.
Worth & D. C. Ry. Co. v. Atterberry
(TexCivApp), 190 SW 1133.
The use of "etc." is condemned
as rendering an instruction in-
definite. Dallas Consol. Elec. Street
Ry. Co. v. Chambers, 55 TexCivApp
331, 118 SW 851.
Virginia. Sutherland v. Gent, 121
Va 643, 93 SE 646.
Washington. Patterson v. Wenat-
chee Canning Co.. 53 Wash 155, 101
P 721.
West Virginia. Parkersburg In-
dustrial Co. v. Schultz, 43 WVa 470,
27 SE 255; Blevins v. Bailey, 102
WVa 415, 135 SE 395; Slaven v.
Baltimore & O. R. Co., 114 WVa
315, 171 SE 818.
Wisconsin. Duthie v. Washburn,
87 Wis 231, 58 NW 380.
58 California. People v. Cascino,
137 CalApp 73, 29 P2d 895.
Georgia. Methvin Min. & Inv. Co.
v. Matthews, 147 Ga 321, 93 SE
894.
Illinois. Lavander v. Chicago City
Ry. Co., 296 111 284, 129 NE 757;
Winn v. Walker, 145 IllApp 333;
Wilcke v. Henrotin, 146 IllApp 481,
affd. in 241 111 169, 89 NE 329;
Ruddell v. Baltimore & 0. R. Co.,
152 IllApp 218; Show v. Alton,
Granite & St. L. Trac. Co., 152 111
App 552; Gibbons v. Southern Illi-
nois Ry. & Power Co., 199 IllApp
154; Bieber v. Aetna Ins. Co., 201
IllApp 3; Zamiar v. Peoples Gas
;94
INSTEUCTIONS — RULES GOVERNING
270
manner.59 The practice of giving- "eclectic" instructions by
means of selections from requests of both parties, together with
general instructions from the court, is condemned as having a
tendency to obscure rather than to clarify the issues.60 The
nice selection of words is not material in instructions, the cri-
terion being whether they correctly state the law in a manner
to make their meaning clear.61
The model instruction is a simple, impartial, clear, concise
statement of the law applicable to the evidence in the case then
on trial.62 Thus where the court says, "I charge you that, after
hearing the evidence, it is for you to say whether the charges
are reasonable or not," the language is not plain, as it may be
understood by the jury to refer to the court's charges, whereas
another meaning was in fact intended, and the instruction,
therefore, is subject to criticism,63 So where an instruction
makes use of the expression "in a case like this," the jury may
infer that it means the case at bar, when it was in fact intended
to refer to a class of cases to which the plaintiff's action
belonged.64
An instruction may contain a reference to some other paper
before the jury.65 So also where an instruction makes reference
Light & Coke Co., 204 IllApp 290;
Carlln v. Chicago Rys. Co., 205
IllApp 303; Reinick v. Smetana, 205
IllApp 321; Edwall v. Chicago, K.
I. & P. R. Co., 208 IllApp 489; Ne-
ville v. Chicago & A. R. Co., 210
IllApp 168.
Kentucky. Louisville & N. R. Co.
v. Stephens, 188 Ky 17, 220 SW 746.
Oklahoma. Farris v. Hodges, 59
Okl 87, 158 P 909.
59 Schaidler v. Chicago & NW Ry.
Co., 102 Wis 564, 78 NW 732.
The instructions should apply to
distinctive facts in the case. Vir-
ginia R. & Power Co. v. Burr, 145
Va 338, 133 SE 776.
60Marquette, H. & O. R. Co. v.
Marcott, 41 Mich 433, 2 NW 795.
61 Callegari v. Maurer, 4 Cal
App2d 178, 40 P2d 883; Oliver v.
Nelson, 128 Neb 160, 258 NW 69.
62 Colorado. Huffman v. People,
96 Colo 80, 39 P2d 788.
Massachusetts. Holbrook v. Sea-
grave, 228 Mass 26, 116 NE 889
(criticism of instruction for inclu-
sion of three or more independent
subjects).
Rhode Island. Bourre v. Texas
Co., 51 RI 254, 154 A 82.
Virginia. Gottlieb v. Common-
wealth, 126 Va 807, 101 SE 872.
Washington. Instructions should
be so prepared and presented as to
state the law of the case to the jury
as succinctly and directly as possi-
ble. This is best done by a few
simple and direct statements cover-
ing and applying to the issues,
rather than by lengthy dissertations
or numerous instructions. Mathias
v. Eichelberger, 182 Wash 185, 45
P2d 619.
West Virginia. See Norfolk & W.
Ry. Co. v. Henderson, 132 Va 297,
111 SE 277.
63 Fuller v. Stevens (Ala), 39 S
623. See State v. Shamblin, 105
WVa 520, 143 SE 230.
64Fitts v. Southern Pacific Co.,
149 Cal 310, 86 P 710v 117 AmSt
130.
65 State v. Male, 112 WVa 56, 163
SE 713.
271
FORM AND ARRANGEMENT
94
to another instruction, it should do so in a distinct and definite
manner so as to leave no doubt as to which one was intended.66
Where there is more than one plaintiff in an action, it is
not necessarily misleading to make use of the word "plaintiff"
in an instruction.67 The rule is the same with the use of the
singular in referring to defendants.68
Mere verbiage or prolixity without more does not ordinarily
render an instruction erroneous.69
Latin terms should be avoided for the presumption is that
jurors do not understand them.70 The use of the words "prima
facie" in a charge to the jury has been condemned as likely
to cause confusion and misunderstanding.7 '
It is misleading and confusing to use the meaningless term
"and/or" in a charge to the jury.72
The word "may" is used interchangeably with "shall" or
"will,"73 and likewise the words "proof" and "evidence."74 The
New York, But see People v.
Kresel, 243 AppDiv 137, 277 NYS
168, for an extreme case of prolixity
held prejudicial.
Ohio. Andy v. State, 2 OhApp
103, 19 OhCirCt (N. S.) 93, 26 Oh
CirDec 146.
Wisconsin. Belongy v. Kewaunee,
G. B. & W. Ry. Co., 184 Wis 374,
199 NW 384.
70 Indianapolis Trac. & Terminal
Co. v. Thornburg, 74 IndApp 642,
125 NE 57; Dunn v. Land (TexCiv
App), 193 SW 698 (desideration).
71 McAdams v. United States, 74
P2d 37.
72 Alabama. Snow v. Allen, 227
Ala 615, 151 S 468.
Illinois. Preble v. Architectural
Iron Workers Union, 260' IllApp 435.
Iowa. Holmes v. Gross, — la — ,
93 NW2d 714.
73 Illinois. Posch v. Chicago Ry.
Co., 221 IllApp 241. But see People
v. Munday, 280 111 32, 117 NE 286.
Kentucky. See also Mayer v.
Louisville Ry. Co., 192 Ky 371, 233
SW 785.
Missouri. Pennington v. Kansas
City Rys. Co., 284 Mo 1, 223 SW 428.
New Mexico. State v. Starr, 24
NM 180, 173 P 674.
74 Walker v. State, 138 Ark 517,
212 SW 319.
66 Drumm-Flato Comm. Co. v.
Gerlack Bank, 92 MoApp 326.
67 Ross P. Beckstrom Co. v. Arm-
strong Paint & Varnish Works, 220
IllApp 598; Citizens Gas & Oil Min.
Co. v. Whipple, 32 IndApp 203, 69
NE 557.
68 State v. Walker, 207 MoApp
623, 227 SW 831.
69 Arkansas. Fourche River Val-
ley & I. T. Ry. Co. v. Tippett, 101
Ark 376, 142 SW 520.
Indiana. Washington Hotel Realty
Co. v. Bedford Stone & Constr. Co.,
195 Ind 128, 143 NE 156.
Iowa. Renner v. Thornburg, 111
la 515, 82 NW 950.
Kansas. Park View Hosp. Co. v.
Randolph Lodge, No. 216, I. 0. 0.
P., 99 Kan 488, 162 P 302.
Kentucky. Pugh v. Eberlein, 190
Ky 386, 227 SW 467.
Massachusetts. The court may
use illustrations. Draper v. Cotting,
231 Mass 51, 120 NE 365.
Missouri. Choka v. St. Joseph
Ry., Light, Heat & Power Co., 303
Mo 132, 260 SW 67; Johnson v.
American Car & Foundry Co. (Mo),
259 SW 442.
New Jersey. It is discretionary
with the judge whether to elaborate
upon instructions that fairly cover
the issues. Runyon v. Monarch Ace.
Ins. Co., 108 NJL 489, 158 A 530.
§94 INSTRUCTIONS — RULES GOVERNING 272
expression "I suggest" is held the equivalent of "I instruct."78
(2) An instruction should embody a concise and perspicuous
statement of the cause of action and the issues.76 Instructions
therefore should show the jury just what the issues are,77
taking care not to misstate them,78 and to submit only such
issues as are formed by the pleadings.79 In so doing, the court
may state the facts hypothetically, instructing that the verdict
should be of a certain designated character if the facts are
found to be true.80 And it is not improper to give a history of
the litigation leading up to the case at bar, predicating it upon
the pleadings and the uncontradicted evidence, and making men-
tion of it only so far as may be necessary in order to enable the
jury to understand the issues.81 The giving of an indefinite
charge would not be error if any indefiniteness is completely
removed by special charges given at the same time and, later,
by the general charge.82 But an instruction is inadequate which
tells the jury that under certain named circumstances the plain-
tiff cannot recover, where such circumstances constitute only
a portion of the issues.83 The instruction should not ordinarily
join conjunctively two or more grounds of action or defense,
for the effect thereof is to require a finding of the existence of
all of such grounds and not any one of them.84
(3) If the charge, as delivered by the court, is substantially
correct and presents the issues fairly to the jury, it will be
sufficient.85 It is not necessary that instructions should be
drawn with such technical accuracy as to be free from hyper-
75 Hodges v. State, 16 OklCr 183, Oregon. Doerstler v. First Nat.
182 P 260. Bank, 82 Or 92, 161 P 386.
76 Paxton v. Woodward, 31 Mont Pennsylvania. McCord v. Whit-
195, 78 P 215, 107 AmSt 416, 3 Ann acre, 8 PaSuperCt 277.
Gas 546. 7S Chicago, B. & Q. R. Co. v.
The court properly refused an in- Clinebell, 5 Neb (Unof.) 603, 99 NW
struction consisting- of a string of 839.
words, without punctuation, intel- 79 Chicago, B. & Q. R. Co. v.
ligible or unintelligible, according as Clinebell, 5 (Unof.) 603, 99 NW 839.
one may happen to read it, requir- 30 Jones v. Hathaway, 77 Ind 14.
ing division into two distinct sen- Sl Conley v. Redwine, 109 Ga
tences to make it intelligible. Bailey 640, 35 SE 92, 77 AmSt 398.
v. State, 168 Ala 4, 53 S 296, 390. 82 Mink v. Cincinnati Street Ry,
77 Georgia, The court should Co., 99 OhApp 123, 131 NE2d 606.
state explicitly which allegations in 83 Caven v. Bodwell Granite Co.,
the declaration were admitted, and 99 Me 278, 59 A 285.
which denied by the plea. Southern 84 Tuepker v. Sovereign Camp, W.
Ry. Co. v. Ray, 28 GaApp 792, 113 0. W. (MoApp), 226 SW 1002. See
SE 590. also Lackey v. United Rys. Co., 288
Maryland. Weinbeck v. Dahms, Mo 120, 231 SW 956.
134 Md 464, 107 A 12. ** California. But in Hart v. Far-
Oklahoma. Lusk v. Haley, 75 Okl ris, 218 Cal 69, 21 P2d 432, an in-
206, 181 P 727. struction was disapproved which
273
FORM AND ARRANGEMENT
§94
critical objections, provided the jury can correctly understand
therefrom the rules of law applicable to the case.86 Thus where
an instruction is correct, although it might be extended so as to
include other matters, the fact that it does not embrace such
other matters will not create error. If an additional instruction
is desired, it should be requested.87 Where a charge as a whole
used the word "approximate" in-
stead of "proximate."
Illinois. Fessenden v. Doane, 188
111 228, 58 NE 974.
Indiana. Colee v. State, 75 Ind
511; Wilson v. Trafalgar & B. C.
Gravel Road Co., 93 Ind 287.
Though a particular form of in-
struction may have received the ap-
proval of appellate courts, there is
no rule compelling1 trial courts to
follow such form, and they may use
any language they see fit in their
charges that will correctly express
the controlling legal principles.
Beneks v. State, 208 Ind 317, 196
NE 73.
Pennsylvania. Carman v. Central
R. Co., 195 Pa 440, 46 A 71.
Rhode Island. Tanguay v. War-
wick Chem. Co., 54 RI 445, 173 A
540.
86 Alabama. The use of the word
"result" instead of "cause" in re-
ferring to proximate cause does not
render an instruction erroneous,
since if the injury must be the proxi-
mate result of negligence then the
negligence was the proximate cause
of the injury. Sloss-Sheffield Steel
& Iron Co. v. Stewart, 172 Ala 516,
55 S 785.
California. Use of article "a" for
"the" harmless. Freiburg v. Israel,
45 CalApp 138, 187 P 130.
Georgia. Moore v. McAfee, 151
Ga 270, 106 SE 274 ("if" in instruc-
tion equivalent to "where").
Illinois. It is not necessary to
repeat the words "by the preponder-
ance of the evidence" in every in-
struction. Cary v. Niblo, 155 111
App 338.
Indiana. It is not error to refer
to a witness as a "claim agent"
where he testified that he was a
law agent having the duties of a
claim agent. Southern Ry. Co. v.
Hazlewood, 45 IndApp 478, 88 NE
636, 90 NE 18.
Kentucky. Mere inaptness of
statement is, not fatal if the in-
structions are substantially correct,
St. Louis, I. M. & S. R. Co. v. Mc-
Whirter, 145 Ky 427, 140 SW 672.
Maryland. Weant v. Southern
Trust & Deposit Co., 112 Md 463, 77
A 289 (mere verbal inaccuracy not
fatal); Street v. Hodgson, 139 Md
137, 115 A 27.
Missouri. Torreyson v. United Ry.
Co., 144 Mo App 626, 129 SW 409;
Roberts v. Kansas City Rys. Co.,
204 MoApp 586, 228 SW 902 ("non-
delegable" criticised as technical
but use harmless) ; Sparks v. Harvey
(Mo App), 214 SW 249; Brown v.
St. Louis & S. F. Ry. Co. (MoApp),
227 SW 1069 (use of "neglect" for
"negligence" harmless) ; Taul v.
Askew Saddlery Co. (MoApp), 229
SW 420.
The length of an instruction will
not justify a reversal unless it con-
tains objectionable features which
constitute reversible error. State
v. Steele, 226 Mo 583, 126 SW 406.
Pennsylvania. Commonwealth v.
Robinson, 305 Pa 302, 157 A 689.
South Carolina. Joyner v. At-
lantic Coast Line R. Co., 91 SC
104, 74 SE 825.
South Dakota. Smith & Co. v.
Kimble, 38 SD 511, 162 NW 162.
Utah. Musgrave v. Studebaker
Bros. Co., 48 Utah 410, 160 P 117.
Virginia. E. I. Du Pont De Ne-
mours & Co. v. Snead's Admr., 124
Va 177, 97 SE 812.
Washington. Hutchins v. School
Dist. No. 81, 114 Wash 548, 195 P
1020.
87 Wilson v. Trafalgar & B. C.
Gravel Road Co., 93 Ind 287.
An instruction correct as far as
it goes is not erroneous merely be-
§95 INSTRUCTIONS — RULES GOVERNING 274
apprises jury of the matters in issue and no request to charge
is made, the charge is not objectionable because isolated para-
graphs thereof are not as clear as they could be.88 And where a
charge covers the entire declaration, without discrimination, no
demurrer having been interposed as to any count, and the proof
corresponding substantially to the allegations, it is not objec-
tionable.89 But an instruction will be faulty which tells the
jury that, in order that a tax deed may be valid, it must be
shown that the "requirements of the law have been complied
with," and "all conditions precedent" observed, and no informa-
tion is given as to what such requirements and conditions prece-
dent are.90
§ 95, Repetition of instructions in civil cases.
Although the practice of repeating instructions should be
avoided, it is not necessarily erroneous.
The occurrence of repetitious instructions may arise in two
ways. The judge may grant a requested instruction which is
repetitious or the judge may be repetitious in his own general
charge.
At first glance, it would appear that repeating an instruction
would be a desirable practice. Rules of law are difficult to com-
prehend to the ordinary man; therefore, repetition should aid
comprehension. But the danger of tautology is that it may place
undue stress on the repeated matter and thus tend to mislead or
confuse the jury. As a general rule then, where the subject
matter is fully covered in other instructions, the court should
not repeat it, and should refuse a requested instruction that is
repetitious.91 Where, for example, the court, in the commence-
cause it is not more complete. Bis- Rapid Transit Co. v. Albrecht, 22
sot v. State, 53 Ind 408. ColoApp 201, 123 P 957.
88 Pembor v. Marcus, 307 Mich Connecticut. Stedman v. O'Neil,
279, 11 NW2d 889. 82 Conn 199, 72 A 923, 22 LRA
89 Fowler v. Gilbert, 38 Mich 292. (N. S.) 1229 (burden of proof) ;
90 Wood v. Chapman, 24 Colo 134, Yanez v. DeRosa, 118 Conn 471, 172
49 P 136. A 926.
91 Arkansas. Furlow v. United Illinois. Thompson v. Hughes,
Oil Mills, 104 Ark 489, 149 SW 69, 286 III 128, 121 NE 387; Chicago
45 LRA (N. S.) 372; Patterson v. City Ry. Co. v. Roach, 76 IllApp
Risher, 143 Ark 376, 221 SW 468. 496; Dwyer v. Chicago City Ry. Co.,
California. Mernin v. Cory, 145 153 IllApp 463; Kopf v. Yordy, 208
Cal 573, 79 P 174; Weaver v. Carter, IllApp 580; Holler v. Chicago City
28 Cal App 241, 152 P 323; Nelson v. Ry. Co., 209 IllApp 140.
Colbeck, 94 CalApp2d 792, 211 P2d Indiana. Baum v. Palmer, 165 Ind
878. 513, 76 NE 108; Modern Woodmen
Colorado. Alley v. Tovey, 78 Colo v. Zincheloe, 175 Ind 563, 94 NE
532, 242 P 999; Colorado Springs 228, AnnCas 1913C, 1259; Kempf v.
275
FORM AND ARRANGEMENT
§95
ment of a charge, outlines the material averments of the com-
plaint, together with the admissions and denials of the answer,
and instructs that a preponderance of the evidence is necessary
for the establishment of such averments, it is sufficient after-
ward to refer generally to such averments, instead of specifically
restating them.92 If an instruction directs the jury that they
Himsel, 121 IndApp 488, 98 NE2d
200.
Iowa. Lillie v. Brotherhood of
Railway Trainmen, 114 la 252, 86
NW 279; Clarke v. Hubbell, 249 la
306, 86 NW2d 905.
Kentucky. Proctor Coal Co. v.
Beaver's Admr., 151 Ky 839, 152
SW 965; Trosper Coal Co. v. Craw-
ford, 152 Ky 214, 153 SW 211.
Maryland. Goodman v. Saper-
stein, 115 Md 678, 81 A 695.
Missouri. Perrette v. Kansas City,
162 Mo 238, 62 SW 448.
Nebraska, Pecha v. Kastl, 64
Neb 380, 89 NW 1047.
New Hampshire. Osgood v. Max-
well, 78 NH 35, 95 A 954.
North Carolina. Gordon v. Sea-
board Air Line Ry. Co., 132 NC
565, 44 SE 25.
Ohio. Lloyd v. Moore, 38 OhSt
97; Cincinnati Trac. Co. v. Nellis, 81
OhSt 535, 91 NE 1125; American
Steel Packing Co. v. Conkle, 86
OhSt 117, 99 NE 89; Cleveland Ry.
Co. v. Halterman, 22 OhApp 234,
153 NE 922, 5 OLA 312; Interstate
Motor Freight Corp. v. Beecher, 37
OhApp 23, 174 NE 27; Astrup Co.
v. Rehburg, 42 OhApp 126, 181 NE
551, 36 OLR 405; National Life &
Ace. Ins. Co. v. Kelly, 42 OhApp
255, 182 NE 46.
Texas. Sizemore v. St. Louis &
S. F. Ry. Co. (TexCivApp), 130 SW
1024 (contributory negligence) ; Con-
tinental Oil & Cotton Co. v. Thomp-
son (TexCivApp), 136 SW 1178
(measure of damages); State v.
Haley (TexCivApp), 142 SW 1003
(burden of proof); Maibaum v. Bee
Candy Mfg. Co. (TexCivApp), 145
SW 313 (burden of proof).
Where a party asks more than one
charge on the same subject and the
court selects and gives one of them,
he can not complain of the refusal
of the others. Greenville v. Branch
(TexCivApp), 152 SW 478.
Utah. Smith v. Columbus Buggy
Co., 40 Utah 580, 123 P 580.
Virginia. Greever v. Bank of
Graham, 99 Va 547, 39 SE 159; E.
I. Du Pont De Nemours & Co. v.
Snead's Admr., 124 Va 177, 97 SE
812.
Where there are two phases of a
defense and the jury are fully ad-
vised thereon in one instruction, it
is unnecessary, in a subsequent in-
struction, to repeat what has been
previously said as to either phase.
Greever v. Bank of Graham, 99 Va
547, 39 SE 159.
Washington. Stanhope v. Strang,
140 Wash 693, 250 P 351.
West Virginia. Browning v. Hoff-
man, 90 WVa 568, 111 SE 492;
Robertson v. Hobson, 114 WVa 236,
171 SE 745.
92 North Carolina. Where a cor-
rect charge as to the burden of
proof has been given in one in-
struction, it is not necessary to re-
peat it in succeeding ones. Pennell
v. Brookshire, 193 NC 73, 136 SE
257.
Oregon. Where, in an action for
malpractice, the court instructs that
the degree of skill required of a
specialist in surgery is such as is
possessed by the average members
of the profession practicing as spe-
cialists in similar localities, due
regard being paid to the advanced
state of medical science at the time,
there is no necessity for repeating
this statement in another instruc-
tion. Beadle v. Paine, 46 Or 424,
80 P 903.
Utah. Scott v. Provo City, 14
Utah 31, 45 P 1005.
§95
INSTRUCTIONS — RULES GOVERNING
276
must determine the issues from the evidence on the question, it is
not necessary to further instruct that they must determine each
separate issue according to the evidence.93 Where the court in-
structed the jury upon their first separation that they must
not discuss the case, it was not error to refuse to give a like
instruction at the end of each session of the court.94
But the mere fact of repetition does not generally amount to
reversible error. Prejudice must be shown to have resulted.95
Prejudice shown: Overemphasis was held to have occurred
from the action of the court in giving seven instructions for the
defendant in a damage action, each of them closing with the
statement that plaintiff cannot recover, or that defendant is not
guilty.96 Repetition should not occur over and over as to the
burden of proof being upon the plaintiff to establish his case by
a preponderance of the evidence.97 It is misleading and prejudi-
cial to constantly and needlessly repeat the charge "then you
should find the defendant not guilty/' or words of similar import,
and also to repeat many times instructions relative to degree of
care required of decedent in action for wrongful death,98 Where
93 Vandalia Coal Co. v. Yemm,
175 Ind 524, 92 NE 49, 94 NE 881.
94 Massachusetts Bonding & Ins.
Co. v. Worthy (TexCivApp), 9 SW2d
388.
95 Arkansas. Huffman v. Sud-
bury, 128- Ark 559, 194 SW 510.
Colorado. Liutz v. Denver City
Tramway Co., 54 Colo 371, 131 P
25&.
Georgia. Wilson v. Barnard, 10
GaApp 98, 72 SE 943.
Illinois. McMahon v. Chicago
City Ry. Co., 143 IllApp 608; Ro-
man v. Silbertrust, 159 IllApp 485;
Eggmann v. Nutter, 169 IllApp 116;
Lecklieder v. Chicago City Ry. Co.,
172 IllApp 557.
Indiana. Davis v. Babb, 190 Ind
173, 125 NE 403; Chicago, I. & L.
Ry, Co. v. Stierwalt, 87 IndApp 478,
153 NE 807; Sowers v. Indiana
Service Corp., 98 IndApp 261, 188
NE 865.
Iowa. Livingstone v. Dole, 184 la
1340, 167 NW 639; Arnold v. Ft.
Dodge, D. M. & S. R. Co., 186 la
538, 173 NW 252; McSpadden v.
Axmear, 191 la 547, 181 NW 4.
Massachusetts. Maher v. Steuer,
170 Mass 454, 49 NE 741.
Michigan. Gardner v. Russell,
211 Mich 647, 179 NW 41; McLaugh-
lin v. Curry, 242 Mich 228, 218 NW
698; Hayes v. Coleman, 338 Mich
371, 61 NW2d 634.
Minnesota. Jacobsen v. Minne-
apolis, 115 Minn 397, 132 NW 341.
Missouri. Schultz v. Schultz, 316
Mo 728, 293 SW 105; Rath v. Knight
(Mo), 55 SW2d 682.
Nebraska. Denise v. Omaha, 49
Neb 750, 69 NW 119.
Ohio. Smart v. Nova Caesarea
Lodge, No. 2, 27 OhCirCt 273; Smart
v. Nova Caesarea Lodge, 6 OhCirCt
(N. S.) 15, 17 OhCirDec 273.
South Carolina. Keys v. Winns-
boro Granite Co., 72 SC 97, 51 SE
549.
Texas. Von Boeckmann v. Loepp
(TexCivApp), 73 SW 849; Pettithory
v. Clarke (TexCivApp), 139 SW 989.
Wisconsin. Klipstein v. Raschein,
117 Wis 248, 94 NW 63.
96 Daubach v. Drake Hotel Co.,
243 IllApp 298.
97 Oliver v. Morgan (Mo), 73
SW2d 993.
98Gulich v. Ewing, 318 IllApp
506, 48 NE2d 537, in which nine in-
structions requested by defendant
277 FORM AND ARRANGEMENT § 95
issues in negligence action were simple, the giving of nineteen
instructions for the defendant motorist, which, in seven different
instances told the jury in some form that plaintiff, pedestrian,
was required to be free of contributory negligence, which in
seven instances told the jury that plaintiff must prove her case
by a preponderance of the evidence, and which in fourteen in-
stances stated that the jury "must find the defendant not
guilty/' or that "the plaintiff cannot recover," etc., was re-
versible error."
In an action for wrongful death it has been held improper
for the court to repeat to the jury an instruction relative to the
maximum amount recoverable by the plaintiff.1 Repetition of
four (requested) instructions in practically identical language on
subject of damages in personal injury action was held to con-
stitute error.2
Prejudice not shown: It has been held not an erroneous rep-
etition for the court to charge abstractly upon defendant's theory
of defense and then give a special charge presenting the rule of
law in connection with the concrete facts.3
And where the court instructs the jury that they may find
punitive damages under certain circumstances, but omits one
feature, namely, that such damages may be awarded where gross
negligence is shown, it is no objection that attention is called to
this omitted feature and the jury again instructed as to punitive
damages, with reference thereto.4
Repetition is not confusing where it amounts to no more than
the qualification to numerous instructions necessary to make
their meaning clear.5
One way to avoid deciding whether repetitious instructions
resulted in prejudice is simply to find that there was no repeti-
tion. A converse statement is not always regarded as a repeti-
tion.6 Repetition has been held not involved in a charge, one
paragraph of which declared the law applicable to the case, an-
other submitted the facts for recovery applicable to the declara-
tion, and another stated the negative hypothesis thereof in
defendant's favor.7
which, concluded with words of simi- 3 Jones v. Missouri, K. & T. Ry.
lar import as those stated were Co. (TexCivApp), 157 SW 213.
given. 4 Nashville St. R. v. O'Bryan, 104
99 Baker v. Thompson, 337 IllApp Tenn 28, 55 SW 300.
327, 85- NE2d 924. 5 Stanton v. Hample, 272 P 424.
1 Streeter v. Humrichouse, 261 6 Continental Casualty Co. v.
IllApp 556. Deeg, 59 TexCivApp 35, 125 SW 353.
2 O'Hara v. Central Illinois Light 7 Beaumont, S. L. & W. R. Co. v.
Co., 319 IllApp 336, 49 NE2d 274. Olmstead, 56 TexCivApp 96, 120 SW
596.
§96
INSTRUCTIONS — RULES GOVERNING
278
§ 96, Repetition of instructions in criminal cases.
The general rule in civil cases is also applicable to criminal
cases: Although the practice of repeating instructions should be
avoided, it is not necessarily erroneous.
In criminal cases, instructions are also considered together
and it is not necessary to repeat instructions as to the crime or
some particular phase of it or to reiterate all the qualifying cir-
cumstances.8 But repetition is not reversible error unless it is
of such a nature as to mislead the jury.9
8 Alabama. Thrasher v. State,
168 Ala 130, 53 S 256; McMickens
v. State, 18 AlaApp 36, 88 S 342.
Arkansas. Dean v. State, 139 Ark
433, 214 SW 38; Jones v. State, 165
Ark 250, 263 SW 961; Robertson v.
State, 165 Ark 614, 264 SW 822.
Where the jury is instructed that
in murder the killing must have
been done with malice aforethought
and premeditation, it is not neces-
sary to repeat those elements of the
crime in each paragraph of the
charge. Brewer v. State, 72 Ark
145, 78 SW 773.
California. People v. Stevens, 15
CalApp 294, 114 P 800; People v.
White, 20 CalApp 156, 128 P 417;
People v. Fuski, 49 CalApp 4, 192
P 552; People v. Musumeci, 51 Cal-
App 454, 197 P 129.
Connecticut. State v. Kritchman,
84 Conn 152, 79 A 75; State v.
Weiner, 84 Conn 411, 80 A 198.
Georgia. Hall v. State, 7 GaApp
186, 66 SE 486; Watts v. State, 9
GaApp 500, 71 SE 766; Hill v. State,
18 GaApp 259, 89 SE 351.
In giving the jury the form of a
verdict the court need not repeat
the instruction that the verdict
should be based on the jury's opinion
of the evidence. Brundage v. State,
7 GaApp 726, 67 SE 1051.
Illinois. People v. Blumenberg,
271 111 180, 110 NE 788; People v.
Robertson, 284 111 620, 120 NE 539;
People v. Dear, 286 111 142, 121 NE
615; People v. Burns, 300 111 361,
133 NE 263; Sullivan v. People, 108
IllApp 328.
Indiana. Kennedy v. State, 107
Ind 144, 6 NE 305, 57 AmRep 99;
Thrawley v. State, 153 Ind 375, 55
NE 95; Fehlman v. State, 199 Ind
746, 161 NE 8.
Iowa. State v. Walker, 192 la
823, 185 NW 619.
Kansas. State v. Buffington, 71
Kan 804, 81 P 465, 4 LRA (N. S.)
154.
Kentucky. Gillis v. Common-
wealth, 202 Ky 821, 261 SW 591.
Mississippi. Fisher v. State, 150
Miss 206, 116 S 746.
Missouri. State v. Darrah, 152
Mo 522, 54 SW 226; State v. Chick,
282 Mo 51, 221 SW 10; State v. Mil-
ler, 292 Mo 124, 237 SW 498.
New Mexico. State v. Chaves, 27
NM 504, 202 P 694; State v. Uli-
barri, 28 NM 107, 206 P 510.
Pennsylvania. Commonwealth v.
State Loan Corp., 116 PaSuperCt
365, 176 A 516.
Texas. Lee v. State, 44 TexCr
460, 72 SW 195; Comegys v. State,
62 TexCr 231, 137 SW 349; McBride
v. State, 81 TexCr 200, 194 SW 825
(not error to give more than one of
three requested charges on same
issue); Cauthern v. State (TexCr),
65 SW 96.
Where the law as to insanity has
been fully charged the court is not
bound to qualify paragraphs dealing
with murder in the first and sec-
ond degrees by referring to the
charge on insanity. Montgomery v.
State, 68 TexCr 78, 151 SW 813.
West Virginia. State v. Prater,
52 WVa 132, 43 SE 230; State v.
Dodds, 54 WVa 289, 46 SE 228;
State v. Legg, 59 WVa 315, 53 SE
545, 3 LRA (N. S.) 1152; State v.
Vineyard, 85 WVa 293, 101 SE 440.
9 Arkansas. Trimble v. State, 150
Ark 536, 234 SW 626.
279
FORM AND ARRANGEMENT
§96
Where words once have been properly defined, they need not
be again defined in each instruction in which they are used.10
Likewise, the court should avoid the repetition of definitions of
offenses.11 But it is not prejudicial for a court to give four
instructions concerning malice and its different characteristics,
even if they could properly have been embraced within one.12
Because repeated instructions on reasonable doubt may lead
the jury to believe that the court is in doubt as to the guilt of
the accused,13 one charge on reasonable doubt is generally suf-
ficient.14
California. In People v. Mesa,
121 CalApp 345, 8 P2d 920, the
court gave two instructions on the
matter of flight, the defendant hav-
ing claimed self-defense.
Illinois. People v. Cotton, 250 111
338, 95 NE 283; People v. Lewis,
252 111 281, 96 NE 1005; People v.
Sobzcak, 286 111 157, 121 NE 592;
People v. Kuhn, 201 111 154, 125 NE
882; People v. Flynn, 302 111 549,
135 NE 101 (reasonable doubt);
People v. Nowicki, 330 111 381, 161
NE 747 (three short instructions on
reasonable doubt).
Missouri. State v. Murray (Mo),
193 SW 830.
Nebraska. Robinson v. State, 71
Neb 142, 98 NW 694.
West Virginia. State v. Snider,
81 WVa 522, 94 SE 981; State v.
Lutz, 88 WVa 502, 107 SE 187.
'opiymel v. State, 164 Ga 677,
139 SE 349; State v. Dipley, 242
Mo 461, 147 SW 111.
* ' California. People v. Martin,
44 CalApp 45, 185 P 1003.
Colorado. Castner v. People, 67
Colo 327, 184 P 387.
Georgia. See also Loyd v. State,
150 Ga 803, 105 SE 465.
12 People v. Rooney, 355 111 613,
190 NE 85.
< 3 State v. Ferrell, 246 Mo 322,
152 SW 33.
1 4 Federal. Burgner v. United
States, 272 F 116; Winter v. United
States, 13 F2d 53; Eierman v. United
States, 46 F2d 46.
Alabama. McMickens v. State, 18
AlaApp 36, 88 S 342.
California. People v. Waysman,
1 CalApp 246, 81 P 1087.
Florida. Sylvester v. State, 46
Fla 166, 35 S 142.
Georgia. Montford v. State, 144
Ga 582, 87 SE 797; Bryant v. State,
153 Ga 534, 113 SE 4; Davis v.
State, 153 Ga 669, 113 SE 11;
Thomas v. State, 18 GaApp 21, 88
SE 718; Thomas v. State, 19 GaApp
104, 91 SE 247.
Illinois. People v. Sawhill, 299
111 393. 132 NE 477; People v. Shaw,
300 111 451, 133 NE 208.
Iowa. State v. Crouch, 130 la
478, 107 NW 173; State v. Ball, 220
la 595, 262 NW 115.
Kansas. State v. McDonald, 107
Kan 568, 193 P 179; State v. Stew-
ardson, 121 Kan 514, 247 P 429;
State v. Sweetin, 134 Kan 663, 8
P2d 397; State v. Fox, 10 KanApp
578, 62 P 727; State v. Ryno, 68
Kan 348, 74 P 1114, 64 LRA 303.
Kentucky. Richmond v. Common-
wealth, 255 Ky 758, 75 SW2d 500.
Missouri. State v. Robinson, 236
Mo 712, 139 SW 140; State v. Law-
son, 239 Mo 591, 145 SW 92; State
v. Washington, 242 Mo 401, 146 SW
1164; State v. Buckner, 335 Mo
229, 72 SW2d 73; State v. Davis
(Mo)? 34 SW2d 133; State v. Bundy
(Mo), 44 SW2d 121.
Nebraska. Dunn v. State, 58 Neb
807, 79 NW 719.
New Jersey. Brown v. State, 62
NJL 666, 42 A 811.
New Mexico. State v. Roybal,
33 NM 187, 262 P 929; State T. Bur-
rus, 38 NM 462, 35 P2d 285.
North Carolina. State v. Killian,
173 NC 792, 92 SE 499.
North Dakota. State v. Currie,
8 ND 545, 80 NW 475.
§97 INSTRUCTIONS — RULES GOVERNING 280
Yet in some situations, it is held error not to repeat an in-
struction. If a charge is given on an affirmative defense, the
court should include an instruction as to reasonable doubt.15
Although an instruction on presumption of innocence is another
way of instructing the jury that the burden of proof of guilt
beyond a reasonable doubt is upon the state, some courts require
that both instructions be given. ( 6 Instructions on manslaughter,
aggravated assault, and assault and battery are erroneous unless
each is coupled with a charge on reasonable doubt. ' 7 Where the
charge is conspiracy murder, the court should give an instruc-
tion as to reasonable doubt upon the whole case, even if instruc-
tions have been given as to reasonable doubt on murder and
manslaughter. ! 8
§ 97. Limitation on number of instructions.
Instructions greatly disproportionate to the issues involved
tend to confuse the jury and it is not an abuse of the judge's dis-
cretion to place a reasonable limit on the number of instructions
he will consider in behalf of either party.
It would seem that the rule as to repeating instructions and
the rule that an instruction must be supported by the pleadings
and evidence would, if applied, limit the number of instructions
without any other rule operating. Nevertheless, it is possible
for elaboration and over-completeness to result in a large num-
ber of instructions. Hence, the discretion lodged in the judge to
limit the number of instructions granted to each party. ' Q
Oklahoma. Cole v. State, 18 Okl ' 9 California. In re Keithley's
Cr 430, 195 P 901; McCarty v. State, Estate, 134 Cal 9, 66 P 5.
21 OklCr 365, 207 P 1069; Needham Illinois. Canon v. Grigsby, 116
v. State, 55 OklCr 430, 32 P2d 92. Ill 151, 5 NE 362, 56 AmRep 769;
Texas. Walker v. State, 88 TexCr Chicago & A. R. Co. v. Kelly, 25
389, 227 SW 308; Byrd v. State, 90 IllApp 17; Casey v. J. W. Reedy
TexCr 418, 235 SW 891; Fulton v. Elev. Mfg. Co., 166 IllApp 595;
State, 102 TexCr 146, 277 SW 651; Thompson v. Sprague, 197 IllApp
Armstrong v. State, 120 TexCr 526, 197; Chatelle v. Illinois Cent. R. Co.,
46 SW2d 987; Johnson v. State 2,10 IllApp 475. But see Kravitz v.
(TexCr), 67 SW 412. Chicago City Ry. Co., 210 IllApp
Virginia. Smith v. Common- 287 (court may not arbitrarily fix
wealth, 155 Va 1111, 156 SE 577. number) ; Bartz v. Chicago City Ry.
l5Hathcock v. State, 10'3 TexCr Co., 116 IllApp 554.
518, 281 SW 859; Shannon v. State, Indiana. Emry v. Beaver, 192 Ind
117 TexCr 429, 36 SW2d 521. 471, 137 NE 55 (45 instructions cov-
1 6 People v. Bickerstaff, 46 CalApp ering 27 pages of printed brief) .
764, 190 P 656; State v. Chick, 282 Iowa. See McCaleb v. Smith, 22
Mo 51, 221 SW 10. la 242.
1 7 Hanners v. State, 104 TexCr Kentucky, See Graham's Admr.
442, 284 SW 554. v. Illinois Cent. R. Co., 185 Ky 370,
^Lindon v. Commonwealth, 257 215 SW 60.
Ky 746, 79 SW2d 202.
281 FORM AND ARRANGEMENT §97
The practice of loading down a case with a great number of
instructions is especially to be condemned where the issues in-
volved are few and simple.20 It is a tactical mistake for defense
attorneys in personal injury cases to request a multitude of
involved and confusing instructions in the hope that an error
will be made. This not only reduces the effectiveness of the in-
structions as an aid to the jury, but also lessens the likelihood
of a reviewing court reversing the decision of the jury because
of alleged faulty instructions.21 It is a commendable practice
to limit the number of instructions, whenever this course can be
taken with due regard to the rights of the parties.22
A surplusage of instruction was shown in a case involving a
plaintiff, a city, and a gas company, in which there were ten
for the plaintiff, twenty for the city, and thirteen for the gas
company.23 In a trial on an indictment for murder, fifty-two in-
structions, twenty-three for the state and twenty-nine for the
defendant, is an unreasonable number of instructions.24
The giving of a large number of instructions is likely to im-
press the jury with the belief that the court is instructing
strongly in favor of a party at whose instance they are given.25
For example, six instructions26 or fourteen27 on contributory
negligence are manifestly too many, resulting in overemphasis
on defendant's theory.
Missouri. Blanton v. Bold, 109 2 ! Borst v. Langsdale, 8 IlIApp2d
Mo 64, 18 SW 1149. See Naylor v. 88, 130 NE2d 520.
Chirm, 82 MoApp 160. 22 Craddock Lbr. Co. v. Jenkins,
Oregon. Collins v. United Brokers 124 Va 167, 97 SE 817; American
Co., 99 Or 556, 194 P 458. Steel Packing Co. v. Conkle, 86 OhSt
Virginia. Norfolk & W. R. Co. v. 117, 99 NE 89. See also Stewart
Henderson, 132 Va 297, 111 SE 277. v. Southwest Missouri R. Co. (Mo
20Schluraff v. Shore Line Mo- App), 224 SW 104.
tor Coach Co., 269 IllApp 569; 23 Welch v. Chicago, 323 111 498,
Whitely v, Bartlett, 270 IllApp 602; 154 NE 226, affg. 236 IllApp 520. k
Desberger v. Harrington, 28 MoApp 24 People v. Miller, 403 111 561,
632; Hannibal v. Richards, 35 MoApp 87 NE2d 649.
15 (12 instructions on a single is- 2S Bartholomew v. Illinois Valley
sue); McAllister v. Barnes, 35 R. Co., 154 IllApp 512.
MoApp 668 (11 instructions, issues 26 In Daubach v. Drake Hotel Co.,
few and simple); Doan v. St. Louis, 243 IllApp 298, trial court was ad-
K. & N. W. Ry. Co., 43 MoApp 450 judged too favorable to the defend-
(23 instructions excessive). ant in giving seven instructions for
The court should give as few in- the plaintiff and twenty-one for the
structions as possible provided they defendant.
cover every feature of the case. 27 Ulve v. City of Raymond, 51
State v. Tomasitz, 144 Mo 86, 45 SW Wash2d 224, 317 P2d 908.
1106.
;98
INSTRUCTIONS — BULBS GOVERNING
282
§ 98. Reference to pleadings for issues.
The courts are not in agreement on whether the judge may
allow the jury to determine the issues by reference to the plead-
ings. Some courts forbid the practice, others permit it, while
still others will reverse if prejudice is shown to have resulted.
Some states require the judge to inform the jury what issues
have been raised by the pleadings and not leave the jury to
determine the questions by reference to the pleadings.28 But
2S Alabama. Lewy Art Co. v.
Agricola, 169 Ala 60, 53 S 145;
Woodward Iron Co. v. Williams, 207
Ala 600, 93 S 523.
An instruction should hypothesize
the facts relied on as a defense and
not require the jury to examine the
pleas to determine what is meant by
the instructions. Birmingham Ry.,
Light & Power Co. v. Fox, 174 Ala
657, 56 S 1013.
Colorado. Ft. Lyon Canal Co. T.
Bennett, 61 Colo 111, 156 P 604.
Florida. Seaboard Air Line By.
Co. v. Kay, 73 Fla 554, 74 S 523.
Illinois. Schlauder v. Chicago &
Southern Trac. Co., 253 111 154, 97
NE 233,- Lerette v. Director Gen-
eral of Railroads, 306 111 348, 137
NE 811; Rosinski v. Burton, 163
IllApp 162; Latham v. Cleveland,
C., C. & St. L. R. Co., 164 IllApp
559; Randall Dairy Co. v. Pevely
Dairy Co., 274 IllApp 474.
It is held by the courts of Illinois
that it is the function of the court
to define the issues without referring
the jury to the pleadings to ascer-
tain what they are; but an instruc-
tion referring the jury to the com-
plaint for determination of the
charges of negligence does not neces-
sarily require reversal where other
given instructions effectively define
the issues to the jury. Hann v.
Brooks, 331 IllApp 535, 73 NE2d
624.
Iowa. Heineman v. Young (la),
197 NW 1001; Miller v. Mutual Fire
& Tornado Assn., 219 la 689, 259
NW 572.
Mississippi. Gurley v. Tucker, 170
Miss 565, 155 S 189.
An instruction authorizing a re-
covery if the plaintiff was injured
"in the manner set out in the decla-
ration" is improper as tending to
mislead. Southern Ry. Co. v. Ga-
nong, 99 Miss 540, 55 S 355.
Missouri. Wilks v. St. Louis &
S. F. R. Co., 159 MoApp 711, 141
SW 910; Sinnamon v. Moore, 161
MoApp 168, 142 SW 494; Birch Tree
State Bank v. Dowler, 163 MoApp
65, 145 SW 843; Bean v. Lucht,
165 MoApp 173, 145 SW 1171; Byrne
v. News Corp., 195 MoApp 265, 190
SW 933; Baker v. Lyell, 210 MoApp
230, 242 SW 703; State ex rel.
Macke v. Randolph (MoApp), 186
SW 590; Pollard v. Carlisle (Mo
App), 218 SW 921; Ritchie v. State
Board of Agri. (MoApp), 297 SW
435; Phillips v. Thompson, 225 Mo
App 859, 35 SW2d 382.
Nebraska. Larson v. Chicago &
N. W. R. Co., 89 Neb 247, 131 NW
201.
North Dakota. Forszen v. Hurd,
20 ND 42, 126 NW 224.
Ohio. Parmlee v. Adolph, 28 Oh
St 10; Baltimore & 0. Ry. Co. v.
Lockwood, 72 OhSt 586, 74 NE
1071; Cincinnati Trac. Co. v. For-
rest, 73 OhSt 1, 75 NE 818; Cin-
cinnati Trac. Co. v. Stephens, 75
OhSt 171, 79 NE 235; Jones v. Peo-
ples Bank, 95 OhSt 253, 116 NE
34; Ohio Collieries Co. v. Cocke, 107
OhSt 238, 140 NE 356; Telinde v.
Ohio Trac. Co., 109 OhSt 125, 141
NE 673; Curlis v. Brown, 9 OhApp
19, 31 OhCtApp 364; Souder v. Has-
senfeldt, 48 OhApp 377, 194 NE 47,
1 OhO 5-54; Ruskamp v. Cincinnati
Trac. Co., 23 ONP (N. S.) 553; Gill
v. Baker, 34 OLR 21; Cleveland Ry.
283
FORM AND ARRANGEMENT
§98
this practice is permitted in some jurisdictions,29 and in others
is not considered erroneous where the pleadings state a cause of
action and no prejudice is shown to have resulted.30
Reference to the pleadings may be made either by reading
the pleadings or simply telling the jury to read them. In some
jurisdictions, merely reading the pleadings without making
known to the jury the issues in the case is error.31 In other
states, substantially copying pleadings into the instructions is
erroneous only if prejudice is shown, but the practice is not com-
mended.32 For example, it is reversible error to copy into the
Co. v. Bezoska, 1 OLA 315; Indus-
trial Comm. v. Fritz, 12 OLA 723;
Kinney v. Schmidt, 13 OLA 582.
Oklahoma. Klein v. Muhlhausen,
83 Okl 21, 200 P 436.
Texas. Southern Badge Co. v.
Smith (TexCivApp), 141 SW 185;
Hines v, Hodges (TexCivApp), 238
SW 349; Payne v. Kindei (TexCiv
App), 239 SW 1011; Farmers & Me-
chanics Nat. Bank v. Marshall (Tex
CivApp), 4 SW2d 165.
Virginia. Jones v. Richmond, 118
Va 612, 88 SE 82; Southern Ry. Co.
v. May, 147 Va 542, 137 SE 493;
Curtis & Shumway, Inc. v. Williams
(Va), 86 SE 848.
West Virginia. Mott v. Davis, 90
WVa 613, 111 SE 603.
29 Georgia. Jones v. McElroy, 134
Ga 857, 68 SE 729, 137 AmSt 276;
Woodward v. Fuller, 145 Ga 252, 88
SE 974; Almand v. Thomas, 14S Ga
369, 96 SE 962; Upshaw Bros. v.
Stephens, 26 GaApp 284, 106 SE
125; Port Wentworth Terminal Corp.
v. Leavitt, 28 GaApp 82, 110 SE
686.
Texas. A charge which states the
issues in substantial conformity to
the pleadings and refers the jury
to the petition for a full statement
of the cause of action is sufficient.
Missouri, K. & T. Ry. Co. v. Gilbert,
61 TexCivApp 478, 131 SW 1145.
Virginia. An instruction properly
stating the law applicable to the
facts which plaintiff has pleaded
and proved need not state to which
count of the declaration it is ap-
plicable, in the absence of a cir-
cumstance rendering it necessary-
Adamson's Admr. v. Norfolk & P.
Trac. Co., Ill Va 556, 69 SE 1055.
30 Illinois. Waschow v. Kelly
Coal Co., 245 111 516, 92 NE 303;
McFarlane v. Chicago City Ry. Co.,
288 111 476, 123 NE 638; Sandor v.
Verhovey Aid Assn., 199 IllApp 199;
Thorne v. Southern Illinois Ry. &
Power Co., 206 IllApp 372; Peters
v. Howard, 206 IllApp 610.
Unless the complaint contains all
the elements necessary for a re-
covery, the court should not instruct
that if the plaintiff has made out
his case as set out in the complaint
by a preponderance of the evidence
they should find for the plaintiff.
Cromer v. Borders Coal Co., 246 111
451, 92 NE 926.
An instruction will not cause a
reversal merely because it refers to
a count of a declaration which does
not state a cause of action if there
is another count contained in such
declaration which does state a cause
of action and will support a recov-
ery. Ruch v. Aurora, E. & C. R.
Co., 150 IllApp 329.
3 * Henkel v. Robinson, 27 OhApp
341, 161 NE 342.
32 Federal. Nupen v. Pearce, 149
CCA 43, 235 F 497.
California. Earl v. San Francisco
Bridge Co., 31 CalApp 339, 160 P
570.
Colorado. Union Gold Min. Co. v.
Crawford, 29 Colo 511, 69 P 600.
Georgia. Georgia Ry. & Power
Co. v. Jenkins, 28 GaApp 632, 112
SE 734.
Illinois. Reivitz v. Chicago Rapid
Transit Co., 327 111 207, 158 NE 380.
§98
INSTRUCTIONS — RULES GOVERNING
284
instructions the pleadings almost verbatim, where the petition
and answer contained much surplusage, and the jury would likely
be caused to speculate upon material matters,33
On the other hand, it is not error to incorporate a short,
concise statement of a party's position as found in the plead-
ings,34 nor is paraphrasing pleaded specifications of negligence
improper,
35
Indiana. Cincinnati, I. & W. Ry.
Co. v. Little, 190' Ind 662, 131 NE
762; Angola Ry. & Power Co. v.
Butz, 52 IndApp 420, 98 NE 818;
Indianapolis v. Moss, 74 IndApp 129,
128 NE 857; Fidelity & Casualty
Co. v. Blount Plow Works, 78 Ind
App 529, 136 NE 559.
Where the complaint states a good
cause of action and its sufficiency is
not questioned, an instruction is not
open to objection which sets out
the allegations of the complaint in
detail and states that the answer
is a general denial and that these
form the issues, and that under the
issues thus formed the plaintiff, in
order to recover, must prove by a
fair preponderance of the evidence
all of the material elements of the
complaint. New v. Jackson, 50 Ind
App 120, 95 NE 328.
Iowa. McDonald v. Bice, 113 la
44, 84 NW 985; Canfield v. Chicago,
R. I. & P. Ry. Co., 142 la 658, 121
NW 186; Black v. Miller, 158 la 293,
138 NW 535; Sutton v. Greiner, 177
la 532, 159 NW 268; Hoegh v. See,
215 la 733, 246 NW 787; Christen-
sen v. Farmers Sav. Bank, 218 la
892, 255 NW 520,- 256 NW 687;
Young v. Jacobsen * Bros. (la), 258
NW 104 (declaring the practice to
be improper).
See Dunnegan & Briggs v. Chi-
cago, R. I. & P. R. Co., 202 la 787,
211 NW 364; Wilson v. Else, 204
la 857, 216 NW 33.
Kansas. Kansas City, Ft. S. &
M. Ry. Co. v. Dalton, 66 Kan 799,
72 P 209.
Minnesota. Savino v. Griffin Wheel
Co., 118 Minn 290, 136 NW 876.
Missouri. Brunk v. Hamilton-
Brown Shoe Co., 334 Mo 517, 66
SW2d 903; Harlan v. Wabash Ry.
Co., 335 Mo 414, 73 SW2d 749;
Becker v. Thompson, 336 Mo 27, 76
SW2d 357.
Nebraska. Tobler v. Union Stock
Yards Co., 85 Neb 413, 123 NW
461; Forrest v. Koehn, 99 Neb 441,
156 NW 1046; Plath v. Brunken,
102 Neb 467, 167 NW 567; Spieler
v. Lincoln Trac. Co., 103 Neb 339,
171 NW 896; Fellers v. Howe, 106
Neb 495, 184 NW 122; O'Brien v.
Sullivan, 107 Neb 512, 186 NW 532;
Sohl v. Sohl, 114 Neb 353, 207 NW
669; Scott v. New England Mut.
Life Ins. Co., 128 Neb 867, 260 NW
377; Nama v. Shada, 150 Neb 362,
34 NW2d 650; Simcho v. Omaha &
Council Bluffs Street Ry. Co., 150
Neb 634, 35 NW2d 501.
New Jersey. Portley v. Hudson
& M. R. Co., 113 NJL 13, 172 A
384.
North Dakota. Reuter v. Olson,
79 ND 834, 59 NW2d 830.
Ohio. Uncapher v. Baltimore &
0. R. Co., 127 OhSt 351, 188 NE 553.
South Dakota. Farm Mtg. & Loan
Co. v. Martin, 51 SD 424, 214 NW
816.
Tennessee. Nashville, C. & St. L.
Ry. Co. v. Anderson, 134 Tenn 666,
185 SW 677, LRA 1918C, 1115, Ann
Gas 1917D, 902.
Utah. Davis v. Heiner, 54 Utah
428, 181 P 587.
Washington. Robinson v. Ebert,
180 Wash 387, 39 P2d 992.
33Veith v. Cassidy, 201 la 376,
207 NW 328.
34 Taylor v. Weber County, 4
Utah2d 328, 293 P2d 925.
35 Clarke v. Hubbell, 249 la 306, 86
NW2d 905.
285 FORM 'AND ARRANGEMENT " §99
The court should state the admissions in the pleadings • and
not refer the jury to the pleadings to determine what things
are admitted.36
Instructions which summarize the allegations of the com-
plaint have been sustained,37 and it is not prejudicial error to
merely refer to the declaration if instructions give a correct
statement of the necessary facts which the jury must believe
before awarding plaintiff a verdict.38
It has been held no violation of the principle to refer to a
pleading to identify a thing about which an issue is raised.39
It is not a reference to the pleading to tell the jury that a certain
issue was raised by the answer of the defendant.40
§ 99. Reference to indictment or information.
Although the courts are not in agreement, the better rule
seems to be that it is the duty of the court to state the issues
and not refer the jury to the indictment or information to de-
termine what they are.
There are courts that seem to state an absolute prohibition
of referring the jury to the indictment or information to deter-
mine the issues.4 ! Again, reference may be made either by copy-
ing the indictment or information into the judge's charge, or
simply referring the jury to these documents. Courts have de-
clared that it is not good practice to copy the information or
indictment into the instructions.42
Most courts seem to follow the rule of deprecating the prac-
tice of referring to the information or indictment, but continue
to rule that it is not reversible error unless there is prejudice
to the defendant.43
Where the substance of the indictment is set out in the
charge there is held to be no error in a general reference in
a subsequent instruction to matters "as charged in the indict-
36 Calif arnia. Piluso v. Spencer, 4O Pattern v. Eveker (MoApp),
36 CalApp 416, 172 P 412. 232 SW 762.
Minnesota. See Hork v. Minne- 4 r Alabama. Lane v. State, 14
apolis Street Ry. Co., 193 Minn 366, AlaApp 40, 70 S 982.
258 NW 576. Missouri. State v. Constitino
North Dakota. Branthover v. (Mo), 181 SW 1155; State v. Bater
Monarch Elev. Co., 33 ND 454, 156 (Mo), 232 SW 1012.
NW 927. New Mexico. State v. McKnight,
37 Donnelly v. Pennsylvania R. 21 NM 14, 153 P 76.
Co., 342 IllApp 556, 97 NE2d 846. 42 Kirchman v. State, 122 Neb
38Jessup v. Reynolds, 208 Miss 624, 241 NW 100.
50, 43 S2d 753. 43 Frank v. State, 150 Neb 745,
39Notarfrancesco v. Smith, 105 35 NW2d 816.
Conn 49, 134 A 151; Ekstan v. Her-
rington (MoApp), 204 SW 409.
§100 INSTRUCTIONS — RULES GOVERNING 286
ment."44 It was held no error for the court after defining a
deadly weapon to refer to the indictment for the manner of
its use.43 If an instruction in a criminal case sets forth the
facts necessary for a conviction, it is not defective for including
the expression, "as charged in the first count of the infor-
mation/'46 Where the indictment charged the theft of lint cot-
ton, it was held not error for the court to refer to the subject
of the theft as "one bale of cotton described in the indictment."47
It is not improper to quote in an instruction the charging part
of an information on which the accused has been tried and
to state that a plea of not guilty to the charge put in issue
all matters alleged.48
§ 100. Reference to other instructions.
Instructions are considered as a series and it is not improper
to refer in one instruction to another instruction in the charge.
The rule as stated is applicable to both criminal and civil
cases.4*
Criminal cases. Thus, in a homicide case one instruction
could properly refer to another for a definition of the term "wil-
fully."80 And where the court instructed the jury to acquit the
defendant if the killing with which he was charged was done
under the circumstances set forth in another instruction referred
to which embodied the matter of defense, the instruction was
not erroneous as ignoring the accused's defense.81 Where the
court in referring to the presumption of the defendant's in-
44 State v. Langford, 293 Mo 436, 686; State v. Berry, 193 la 191, 182
240 SW 167. NW 781.
45 State v. Langford, 293 Mo 436, Massachusetts. Radovsky v. New
240 SW 167. York, N. H. & H. R. Co., 258 Mass
46 State v. Moon, 221 MoApp 592, 26, 154 NE 334.
283 SW 468. Missouri. Drumm-Flato Comm,
47 Lindsey v. State, 108 TexCr Co. v. Gerlack Bank, 92 MoApp 326;
187, 299 SW 399. State v. Farrar (Mo), 285 SW 1000;
48 State v. Ramos, 159 Wash 599, Burns v. Polar Wave Ice & Fuel
294 P 223. Co. (MoApp), 187 SW 145; Samples
49 Alabama. Barney Coal Co. v. v. Kansas City Rys. Co. (MoApp),
Hyche, 197 Ala 228, 72 S 433. 232 SW 1049.
California. People v. Roth, 137 Montana. State v. Colbert, 58
CalApp 592, 31 P2d 813. Mont 584, 194 P 145.
Connecticut. Di Maio v. Yolen Tennessee. McElya v. Hill, 105
Bottling Works, 93 Conn 597, 107 A Tenn 319, 59 SW 1025.
497. Texas, Johnson v. State, 128 Tex
Illinois. People v. Laures, 289 111 Cr 12, 78 SW2d 965; Payne v. Ban-
490, 124 NE 585; Teal v. Teal, 324 non (TexCivApp), 238 SW 701.
Ill 207, 155 NE 28; Oetgen v. Lowe, 50 State v. Young, 314 Mo 612,
204 IllApp 608. 286 SW 29.
Iowa. O'Leary v. German Ameri- s ' Dalton v. Commonwealth, 216
can Ins. Co., 100 la 390, 69 NW Ky 317, 287 SW 898.
287 POEM AND ARRANGEMENT § 101
nocence in a criminal prosecution concluded one of his statements
with the words, "under rules which I will give you in charge/3
such reference was held not to invalidate the instruction.82 It is
not prejudicial error for the trial court to refer to a subsequent
charge on the matter of provoking the difficulty, while charging
on the law of self-defense.53
Civil cases. If an instruction being given clearly defined
contributory negligence, it was not error for the court to follow
the definition with the expression "as used in these instruc-
tions," although it was nowhere else used in the instructions,64
In a divorce action where condonation was one of the issues,
it was held proper to refer to certain acts of extreme cruelty
"as defined in these instructions."53 There are limitations to the
practice. The reference to other instructions, in order to escape
condemnation, must not result in misleading or confusing the
jury. If it has that effect, it will result in reversible error.36
Where any of the instructions referred to are bad, then the in-
struction predicated upon it is also bad.57
§ 101. Reading from statutes or ordinances.
Where the case is based upon an unambiguous statute or
ordinance, it is proper to quote the statute or ordinance in the
judge's instructions,
The practice is permitted either in civil cases88 or criminal
62 King v. State, 166 Ga 10, 142 Arkansas. Van Valkinburgh v,
SE 160. State, 102 Ark 16, 142 SW 843; Pen-
53 Lewis v. State, 108 TexCr 258, neweli v. State, 105 Ark 32, 150 SW
1 SW2d 298. 114; Louisiana & A. Ry. Co. v. Wood-
54 Chester v. Chicago, B. & Q. R. son, 127 Ark 323, 192 SW 174;
Co., 247 IllApp 505. Kansas City Southern Ry. Co. v.
55 Teal v. Teal, 324 111 207, 155 Whitley, 139 Ark 255, 213 SW 369.
NE 28. California. People v. Bernard,
56 Gale v. Wilber, 163 Va 211, 175 21 CalApp 56, 130 P 1063; People v.
SE 739. Lima, 36 CalApp 553, 172 P 762;
57 Indiana. McBeth-Evans Glass Garrison v. Pearlstein, 68 CalApp
Co. v. Brunson, 7*0 IndApp 513, 122 334, 229 P 351; Queirolo v. Pacific
NE 439. Gas & Elec. Co., 114 CalApp 610,
Missouri. Cunningham v. Kansas 300 P 487; Withrow v. Becker, 6
City Public Service Co., 229 MoApp CalApp2d 723, 45 P2d 235; Cowan
174, 77 SW2d 161. v. Market Street Ry. Co., 8 Cal
Virginia. See also Smyth Bros.- App2d 642, 47 P2d 752.
McCleary-McClellan Co. v. Beres- Florida. Florida Ry. Co. v. Dor-
ford, 128 Va 137, 104 SE 371. sey, 59 Fla 260, 52 S 963.
58 Federal. Maryland Casualty Georgia. Pitts v. State, 114 Ga
Co. v. Cook-O'Brien Constr. Co., 69 35, 39 SE 873; Dunn v. Bray, 145 Ga
F2d 462; Pryor v. Strawn, 73 F2d 195, 88 SE 931; Holland v. Bell,
595. 148 Ga 277, 96 SE 419; Howell v.
Alabama. Wise v. Schneider, 205 State, 17 GaApp 802, 88 SE 592
Ala SS7, 88 3 062 (auto driving). (mobs) ; McNulty v. State, 21 GaApp
§101
INSTRUCTIONS — RULES GOVERNING
288
prosecutions.59 Of course, if the instruction is required to be
in writing, orally quoting the statute would be error.60
783, 95 SE 304 (cheating and de-
frauding); Shields v. Carter, 22 Ga
App 507, 96 SE 330 (meaning of
preponderance of evidence) ; Miller
v. State, 26 GaApp 642, 107 SE 64;
Hamrick v. Stewart, 29 GaApp 220,
114 SE 723 (liability for torts of
wife, child or servant); Lilly v.
Citizens Bank & Trust Co., 44 Ga
App 653, 162 SE 639.
It is not error to give a section
of the code in its exact language,
although it has been construed some-
what differently from the popular ac-
ception of the terms employed, if
it is thereafter fully explained in
accordance with such construction.
Western Union Tel. Co. v. Harris,
6 GaApp 260, 64 SE 1123.
Illinois. Greene v. L. Fish Furn.
Co., 272 111 148, 111 NE 725; People
v. Crawford, 278 111 134, 115 NE
901 (obtaining money by confidence
game) ; Deming v, Chicago, 321 111
341, 151 NE 886; Minnis v. Friend,
36j) 111 328,. 196 HE 191; Wells y.
Baltimore & 0. S. W. R.' Co., 153
IllApp 23; Vetrovec v. Meyers, 158
IllApp 391; Adams v. Jurich, 160
IllApp 522; Eaton v. Marion County
Coal Co., 173 IllApp 444, affd. in
257 111 567, 101 NE 58; Wagner v.
Chicago, R. I. & P. R. Co., 200 111
App 305 (federal employers' liability
act); McCormick v. Decker, 204 111
App 554; Warren v. Jackson, 204
niApp 576; Sells v. Grand Trunk
Western R. Co., 206 IllApp 45; Bohm
y. palton,* 206. IllApp 374 (speed of
motor vehicles); Corlett v. Illinois
Cent. R. Co., 241 IllApp 124; Sweat
v. Aircraft & Diesel Equip. Corp.,
335 IllApp 177, 81 NE2d 8 (follow-
ing Deming v. Chicago, 321 111 341,
151 NE 886).
Indiana. Vandalia Coal Co. v.
Moore, 69 IndApp 311, 121 NE 685.
Iowa. Haines v. M. S. Welker &
Co., 182 la 431, 165i NW 1027; Kime
v. Owens, 191 la 323, 182 NW 398
(right of way at intersections).
Massachusetts. Commonwealth v.
Burns, 167 Mass 374, 45 NE 755.
Minnesota. Allen v. Johnson, 144
Minn 333, 175 NW^ 545 (duty of
drivers at crossing intersections).
Missouri. Kippenbrock v. Wabash
R. Co., 270 Mo 479, 194 SW 50;
State v. Powell, 66 MoApp 598.
Montana. State v. Cassill, 71
Mont 274, 229 P 716.
Nebraska. Lord v. Roberts, 102
Neb 49, 165 NW 892.
New Jersey. Chiapparine v. Pub-
lic Service Ry. Co., 91 NJL 581,
103 A 180 (duty of motorman to
sound bell on approach to crossing) ;
Felix v. Adelman, 113 NJL 445, 174
A 565; Bradley v. Shreve, 6 NJMisc
729, 142 A 642.
New York. People v. Scanlon,
132 AppDiv 528, 23 NYCr 426, 117
NTS 57.
North Dakota. Huus v. Ringo, 76
ND-763, 39 NW2d 505.
Ohio. Bruce v.'Gook, 34 OhApp
,563, .171 NE 424; Toledo .Consol.
Street Ry. Co. v. Mammet, 13 OhCir
Ct 591, 60 OhCirDec 244; Toledo v.
Nitz, 3 OhCirCt (N. S.) 532, 13
OhCirDec 350; Holliday v. Jones,
53 OLA 167, 84 NE2d 602.
Oklahoma. Devonian Oil Co. v.
Smith, 124 Okl 71, 254 P 14.
In the case of Manglesdorf Seed
Co. v. Busby, 118 Okl 255, 247 P
410, it was held reversible error to
instruct in the language of a part of
the statute.
. South- Carolina. Keel v. Seaboard
A*ir Line Ry., 108 SC 390, 95 SE 64;
State v. Brown, 113 SC 513, 101 SE
847; State v. Blackstone, 113 SC
528, 101 SE 845.
Texas. Gentry v. State, 61 TexCr
619, 136 SW 50; Walker v. State,
78 TexCr 237, 181 SW 191 (law of
mistake in larceny).
S9 Alabama. Frazer v. State, 159
Ala 1, 49 S 245.
Arkansas. Mitchell v. State, 73
Ark 291, 83 SW 1050.
California. . People v. • • Tsimdad,
289
POEM AND ARRANGEMENT
101
In civil cases, it has been held proper to quote a statute
setting the standards of care in mining operations,61 statutes
setting speed limits,62 a statute defining punitive damages.63
Quoting statutes in civil cases has most frequently arisen in
charges to the jury in negligence cases involving automobile or
train accidents. In most cases, it is not deemed improper for the
court to read or quote the pertinent statute.64 In some cases,
mere quotation is insufficient. An instruction on alleged neg-
ligence in violation of a statute should tell the jury what conduct
amounts to such violation and not merely quote the statute, and
where there is evidence of a legal excuse for the violation of a
statute, it is the court's duty to instruct on the fact of such
evidence.65
In criminal cases, the court may define the offense charged
against the defendant in the language of the statute.66 The court
198 Cal 728, 247 P 907; People v.
Costa, 137 CalApp 617, 31 P2d 248;
People v. Bill, 140 CalApp 389, 35
P2d 645; People v. Barnes, 111 Cal
App 605, 295 P 1045 (reasonable
doubt and presumption of inno-
cence).
Georgia. Smith v. State, 43 Ga
App 215, 158 SE 339 (defining se-
duction).
Idaho. State v. Jurko, 42 Idaho
319, 245 P 685.
Illinois. People v. Ficke, 343 111
367, 175 NE 543 (definition of ac-
cessories and explanation of statute
relative to conviction with or with-
out conviction of principal); People
v. Nevin, 343 111 597, 175 NE 797
(defining- larceny); People v. Rip-
plinger, 243 IllApp 467.
Indiana. Sanford v. State, 198
Ind 198, 152 NE 814.
Kentucky. In Horton v. Common-
wealth, 254 Ky 443, 71 SW2d 984,
it is held that the language of the
statute should be literally followed
in instructing as to reasonable doubt,
but that slight variations will not
be fatal.
It is not absolutely required that
an instruction on the trial of a de-
fendant for a statutory offense
should follow the language of the
statute providing the meaning and
substance of the statute is given.
Watson v. Commonwealth, 15 KyL
360, 23 SW 666.
Texas. Williams v. State, 117
TexCr 459, 34 SW2d 886.
Wisconsin. State v. Galle, 214
Wis 46, 252 NW 277.
60 Smurr v. State, 88 Ind 504.
61 Sommer v. Carbon Hill Coal
Co., 46 CCA 255, 107 F 230.
So where an action is brought
under a state mining act for a
Wrongful death, being based upon
the defendant's alleged failure to
provide suitable props, caps and tim-
ber, an instruction referring thereto
and making use of the language of
the statute is rightly given. Con-
solidated Coal Co. v. Bombroski,
106 IllApp 641.
62Lustik v. Walters, 169 Minn
313, 211 NW 311; Kerzie v. Rodine,
216 Minn 44, 11 NW2d 771; City
Transportation Corp. v. Seckler, 32
TennApp 661, 225 SW2d 288.
63 McNatt v. McRae, 117 Ga 898,
45 SE 248.
64 Interstate Public Service Co.
v. Ford, 96 IndApp 639, 185 NE
525; Pesola v. Tremayne, 108 Pa
Super 535, 165 A 661.
65 Sanford v. Nesbit, 234 la 14,
11 NW2d 695.
66 California. People v. Marino,
5 CaiApp2d 550, 42 P2d 713.
Mississippi. Brown v. State, 173
Miss 542, 158 S 339.
§ 101 INSTRUCTIONS — RULES GOVERNING 290
may read the statutory definition of reasonable doubt,67 or pre-
sumption of innocence,68 or instruct on aggravated assault,69
or in a liquor prosecution charge in the language of the pertinent
statute.70 The court may use the statutory language in defining
an accessory.71 An instruction on flight may be given in the
words of a statutory provision.72
There are limitations on the practice of quoting statutes and
ordinances. It is not an assurance of the correctness of an in-
struction merely that it is in the language of the statute.73
The court should explain terms in the statute, the meanings
of which are ambiguous and material to the issue.74 Where the
highest court in the state has placed a modified construction
on a statute, the instruction should be framed accordingly.75
It is proper to define the word "drug" in the language of the
statute in a prosecution for practicing medicine without a li-
cense.76 Where it is a question of fact in a case as to whether
the plaintiff may be called a fellow-servant, it is error to read
the statute bearing on the subject, if the statute is susceptible
to more than one interpretation.77 In a prosecution for seduc-
tion, it is unnecessary to define the term further, where there
is no evidence of unchastity of the prosecutrix.78 If the statute
defines conspiracy, it is unnecessary for the court to define the
term in its own words.79
A court may err in quoting too much of the statute. It is
error to incorporate in the instructions a section of the statutes,
where the section contains subjects not in issue nor proper to be
presented to the jury.80 But this practice would not be erroneous,
Wisconsin. Koss v. State, 217 Wis 284, 28 NE2d 629; Kohn v. B. F.
325, 258 NW 860. Goodrich Co., 139 OhSt 141, 38 NE2d
67 Fleming v. Commonwealth, 217 592.
Ky 485, 290 SW 339; Clemens v. 7S Waterbury v. Chicago, M. &
Commonwealth, 224 Ky 370, 6 SW2d St. P. R. Co., 207 IllApp 375.
483. 76 State v. Verbon, 167 Wash 140,
e» People v. Madison, 3 Cal2d 8 P2d 1083.
668, 46 P2d 159. 77 Arkansas. Kansas City, Ft. S.
69 Wolter v. State, 105 TexCr 363, & M. Ry. Co. v. Becker, 63 Ark 477,
288 SW 233. 39 SW 358. See also Arkansas
70 People v. Daugherty, 324 111 Shortleaf Lbr. Co. v. Wilkinson, 149
160, 154 NE 907. Ark 270, 232 SW 8.
7 ' People v. Nowicki, 330 111 381, Georgia, Clay v. Brown, 38 GaApp
161 NE 747. 157, 142 SE 911.
72 People v. Blake, 129 CalApp Utah. Dimmick v. Utah Fuel Co.,
196, 18 P2d 399. 49 Utah 430, 164 P 872.
73 Wolf v. Mallinckrodt Chem. 78 Maples v. Commonwealth, 242
Works, 336 Mo 746, 81 SW2d 323. Ky 212, 45 SW2d 1060.
74 Western Coal & Min. Co. v. 79 State v. Harris, 10 NJMisc 236,
Greeson, 284 F 510; Lamke v. Harty 158 A 848.
Bros. Trucking Co., 96 Conn 505, 114 8O California, Moss v. Stubbs, 111
A 533; Wolfe v. Baskin, 137 OhSt CalApp 359, 295 P 572, 296 P 86.
291 FOEM AND ARRANGEMENT § 102
provided the instruction properly limited the application of the
statutes to matters in issue.81
A court may err in not quoting enough of the applicable
statute. But this error may not be prejudicial if there is no
evidence on the portion of the statute omitted,82 or if the judge
cures the error by fully charging as to the applicable portions of
the statute.83
There may be a question whether the quoting of an applicable
statute is mandatory or merely permissible conduct. At least
one court has clearly declared that the court can substitute
language of its own choosing equivalent to the terms of the
statute.84 At any rate, the court cannot refer the jury to the
statutes, for this would require the jury to take the statutes
to their room and there find the particular statute and interpret
it.85
Minor errors are not prejudicial. If a charge states the law
correctly, a reference to the wrong section of the code is im-
material.86 Referring to a statement of law as a code provision
instead of an ordinance is not misleading.87
§ 102. Quotations from decisions.
The court may incorporate in the charge a quotation from an
opinion of a higher court which lays down a correct rule of law
applicable to the facts in the case at bar.
Although the practice of incorporating in the charge a quota-
tion from an opinion of a higher court is permitted, it is not
recommended.88 A trial judge may quote from the regular
Georgia. Central of Georgia Ry. 86 Chesrown v. Bevier, 101 OliSt
Co. v. De Loach, 18 GaApp 362, 89 282, 128 NE 94.
SE 433; Ellis v. State, 21 GaApp 87 Reed v. Hensel, 26 OhApp 79,
499, 94 SE 629. 159 NE 843.
Illinois. People v. Moshiek, 323 8S California. People v. Adams,
111 11, 153 NE 720. 76 CalApp 188, 244 P 114; Long v*
Indiana. Gross v. State, 186 Ind Barbieri, 120 CalApp 207, 7 P2d
581, 117 NE 562, 1 ALR 1151. 1082 (saying that it is a dangerous
Nebraska. Henkel v. Bondreau, practice to quote indiscriminately
88 Neb 784, 130 NW 753. the statements of opinions of appel-
81 Wesley v. Waterloo (City of), late courts).
232 la 1299, 8 NW2d 430. Georgia. Hogan v. Hogan, 196
8* Texas Employers' Ins. Assn. v. Ga 822, 28 SE2d 74; Central of
Brumbaugh (TexCivApp), 224 SW Georgia Ry. Co. v. Hartley, 25 Ga
2d 761. App 110, 103 SE 259; Georgia Ry.
83 Greenwalt v. Yuhas, 83 OhApp & Power Co. v. Shaw, 25 GaApp
426, 84 NE2d 221. 146, 102 SE 904; Wilborn v. Barnes,
84 Morris v. Fitzwater, 187 Or 28 GaApp 254, 110 SE 738.
191, 210 P2d 104. Iowa. Liddle v. Salter, 180 la
85 Butler v. Gill, 34 OH 814, 127 840, 163 NW 447.
P 439.
§102
INSTRUCTIONS — RULES GOVERNING
292
part of the opinion or he may use an instruction that has been
approved by a higher court. In any event, the mere fact of
quotation does not assure approval or disapproval.
The danger of reusing an instruction or quoting an opinion
is that the language may not be applicable to the facts of the
case at bar.89 The language of the appellate tribunal frequently
is argumentative and where this is the case, the quotation is
inappropriate for an instruction,90
A quotation from an opinion of a higher court or a pre-
viously approved instruction would be proper if applicable to
the facts in the case at bar.9' Accordingly, an exception will
not lie to the action of the trial court in reading an extract from
an opinion where the law is correctly stated and the opinion
illustrates one phase of the case at bar.92 So the trial court in a
New York. People v. Rutigliano,
261 NY 108, 184 NE 689.
Ohio. Marietta & C. R. Co. v.
Picksley, 24 OhSt 654; Deckant v.
Cleveland, 88- OhApp 469, 97 NE2d
84, revd. 155 OhSt 498, 99 NE2d
609, but on another point.
Virginia. Abernathy v. Emporia
Mfg. Co., 122 Va 406, 95 SE 418.
89 Colorado. See Denver Tram-
way Corp. v. Kuttner, 95 Colo 312,
35 P2d 852 (where the instruction
was condemned because built up
from detached portions of the argu-
ment found in a reported opinion).
Georgia. Jones v. F. S. Royster
Guano Co., 6 GaApp 506, 65 SE 361.
New York. See also People v.
Stern, 201 AppDiv 687, 195 NYS
348.
90 Alabama. Harper v. State, 16
AlaApp 153, 75 S 829. ^
California. Discussions in Su-
preme Court decisions should not be
incorporated in the instructions.
Davis v. Hearst, 160 Cal 143, 116
P 530.
Georgia. Atlanta & W. P. R. Co.
v. Hudson, 123 Ga 108, 51 SE 29;
Porter v. State, 180 Ga 147, 178 SE
151.
9 ' Alabama. In a prosecution for
homicide it is not error in Alabama
for the court to state facts in a
former case showing that no par-
ticular time is required for premedi-
tation or deliberation. MeGumn v.
State, 178 Ala 40, 59 S 635.
Connecticut. But see Radwick v.
Goldstein, 90 Conn 701, 98 A 583.
Iowa. Muller v. DeVries, 193 la
1337, 188 NW 885.
Massachusetts. Post v. Leland,
184 Mass 601, 69 NE 361.
The court may read from an opin-
ion by way of illustration. Roth-
well v. New York, N. H. & H. R.
Co., 223 Mass 550, 112 NE 231.
Michigan. People v. Niles, 44
Mich 606, 7 NW 192; Power v. Ear-
low, 57 Mich 107, 23 NW 606.
Missouri. Courts ought to adhere
to charges that have received the
approval of the Supreme Court and
not attempt definitions which add
nothing to the meaning- of well un-
derstood terms. State v. Nerzinger,
220 Mo 36, 119 SW 379.
Rhode Island. McCoart v. Rhode
Island Co. (RI), 108 A 585.
92 Indiana. It has been held not
to constitute error where the trial
judge, in giving a definition of a
term peculiar to the law, quotes
from the Supreme Court of the state
or from a recognized text writer.
Bronnenburg v. Charman, 80 Ind
475.
Massachusetts. Post v. Leland,
184 Mass 601, 69 NE 361.
South Carolina. Sumter Trust
Co. v. Holman, 134 SC 412, 132 SE
811; State v. McMillan, 144 SC 121,
142 SE 236.
293
FORM AND ARRANGEMENT
103
criminal case may make part of its charge extracts from the
opinion of a higher court on the question of premeditation,
deliberation, and criminal intent, where they correctly state well-
recognized principles and define with accuracy the rules ap-
plicable to those questions in the case at bar.93
It is error for the court to read to the jury the full report
of a decided case.94
While the court may use a reported case for purposes of
illustration in his instructions, he is not permitted to state
the facts of the reported case as part of his illustration.95
It is improper practice to cite authorities on the margin of
an instruction, at least where written instructions are given to
the jury.90
§ 103. Misleading instructions.
The purpose of an instruction is to aid and enlighten the jury,
and this object is defeated by instructions which confuse the
jury.
It is obvious that if instructions are to serve their purpose
of enlightening the jury, confusing instructions should not be
given.97 Instructions should be so unequivocal that a jury can
93 People v. Breen, 181 NY 493,
74 NE 483. See also State v.
Chiles, 5& SC 47, 36 SE 496.
94 "We think it was not proper
for the court to read to the jury the
full report of the case * * *. It
is no more correct for the court than
for counsel to read law reports to a
jury. There are in all reports dis-
cussions which may include refer-
ences to facts real or supposed, and
law questions in or out of the record,
which cannot be taken literally and
just as they stand as guides to a
jury in some other case, and with
different 'facts. Between this case
and that there are very serious
differences as to the alleged cause
and manner of the accident, and the
supposed duty and negligence, that
need not be dwelt upon, because the
citations would have been improper
in the way resorted to in any case.
Precedents are for the use of courts,
who are supposed competent to ex-
tract their principles, and not for
juries, who cannot be expected to
discriminate in their use. It is the
office oi a triaj court to formulate
the legal rules to guide the jury in
the case before them with as little
extraneous ^ combination as possible."
Lendberg" v. Brotherton Iron Min.
Co., 75 Mich 84, 42 NW 675.
95 State v. Hester, 137 SC 145,
134 SE 885.
96 Federal. Notary v. United
States, 16 F2d 434, 49 ALR 1446.
Idaho. State v. Sage, 22 Idaho
489, 126 P 403, AnnCas 1914B, 251.
Illinois. The Illinois court has
held it erroneous to make reference
to Supreme Court decisions on mar-
gin of written instructions.- People
v. Bradley, 324 111 29< 155 -NE SOI.
See also Springer v. Orr, 82 IHApp
558.
97 Federal. Pulaski Min. Co. v.
Hagan, 116 CCA 352, 196 F 724.
Alabama. Sullivan v. State, 117
Ala 214, 23 S 678; Birmingham
Paint & Roofing Co. v. Gillespie,
163 Ala 408, 50 S 1032; Southern
Ry. Co. v. Smith, 173 Ala 697, 55
S 913; Burton v. State, 194 Ala 2,
69 S 913; Mobile County v. Linen,
198 Ala 57, 73 S 423; Alabama
Great Southern H. Co.-v. Flinii, -19$
§103
INSTRUCTIONS — RULES GOVEENING
294
Ala 177, 74 S 246; Shipp v. Fergu-
son, 202 Ala 9, 79 S 307; Herring
v. Louisville & N. R. Co., 203 Ala
136, 82 S 166; Western Union Tel.
Co. v. Hawkins, 14 AlaApp 295, 70
5 12; McAdoo v. Booker, 17 AlaApp
623, 88 S 196.
Arkansas. Nordin v. State, 143
Ark 364, 220 SW 473.
California. Estrella Vineyard Co.
v. Butler, 125 Cal 232, 57 P 980;
People v. Cox, 29 CalApp 419, 155
P 1010; People v. Hartwell, 39 Cal
App 24, 177 P 885; Bibby v. Paci-
fic Elec. Ry. Co., 58 CalApp 658,
209 P 387.
Florida. Jacksonville Elec. Co. v.
Adams, 50 Fla 429, 39 S 183, 7 Ann
Cas 241; Holman Live Stock Co. v.
Louisville & N. R. Co., 81 Fla 194,
87 S 750.
Georgia. Goodson v. State, 162
Ga 178, 132 SE 899; Malsby & Co.
v. Widincamp, 24 GaApp 737, 102 SE
178.
Illinois. Brown v. Illinois Termi-
nal Co., 319 111 326, 150 NE 242,
affg. 237 IllApp 145; People v. Wyne-
koop, 359 III 124, 194 NE 276; Illi-
nois Cent. R. Co. v. Becker, 119
IllApp 221; Alexander v. Donk
Bros. Coal & Coke Co., 149 IllApp
378; Farley v. Wabash R. Co., 153
IllApp 493; Smith v. Kewanee Light
6 Power Co., 196 IllApp 118; Dou-
via v. Ottawa, 200 IllApp 131.
Indiana. Heed v. Gummere, 192
Ind 227, 136 NE 5; Shilling v. Bran-
iff, 25 IndApp 676, 58 NE 855.
An instruction was held mislead-
ing in use of tenns as "slight care,"
"great care/' "highest degree of
care," or other like expressions, as
indicating the quantum of care the
law exacts under special conditions
and circumstances. Union Trac. Co.
v. Berry, 188 Ind 514, 121 NE 655,
reh. den. 124 NE 737, 32 ALR 1171.
Kansas. State v. Ingram, 16 Kan
14; Irvin v. Missouri Pacific R. Co.,
81 Kan 649, 106 P 1063, 26 LRA
(N. S.) 739.
Maryland, Gambrill v. Schooley,
95 Md 260, 52 A 500, 63 LRA 427;
V4 Travelers Jn$, Co., 127
Md 689, 96 A 875, AnnCas 1918C,
1047; Levine v. Chambers, 141 Md
336, 118 A 798.
Massachusetts. Dixon v. New
England R., 179 Mass 242, 60 NE
581.
Michigan. Schoenberg v. Voigt,
36 Mich 310.
Minnesota. Fransen v. Falk Paper
Co., 135 Minn 284, 160 NW 789.
Missouri. Price v. Breckenridge,
92 Mo 378, 5 SW 20; Martin v.
Wiglesworth (MoApp), 193 SW 906;
Markland v. Brotherhood of Ameri-
can Yeomen (Mo App), 210 SW 774;
Robertson v. Kochtitzky (Mo App),
217 SW 543.
Montana. State v. Postal Tel.
Cable Co., 53 Mont 104, 161 P 953.
Nebraska. Faulkner v. Gilbert, 61
Neb 602, 85 NW 843, 62 Neb 126,
86 NW 1074.
North Carolina. Bragaw v. Su-
preme Lodge, 124 NC 154, 32 SE
544.
Ohio. French v. Millard, 2 OhSt
44; Washington Mut. Ins. Co. v.
Merchants & Mfrs. Mut. Ins. Co.,
5 OhSt 450; White v. Thomas, 12
OhSt 312, 80 AmDec 347; Hadley
v, Clinton County Importing Co.,
13 OhSt 502, 82 AmDec 454; Little
Miami R. Co. v. Wetmore, 19 OhSt
110, 2 AmRep 373; Oliver v. Sterling,
20 OhSt 391; Callahan v. State, 21
OhSt 306; Marietta & C. R. Co. v.
Picksley, 24 OhSt 654; Steel v.
Kurtz, 28 OhSt 191; Aetna Ins. Co.
v. Reed, 33 OhSt 283; Himelright v.
Johnson, 40 OhSt 40; Mahoning &
Shenango Ry. & Light Co. v. Leedy,
104 OhSt 487, 136 NE 198.
Oklahoma, Friedman v. Weisz, 8
Okl 392, 58 P 613; Barker v. Creek
Coal & Min. Co., 80 Okl 86, 194 P
195.
Oregon, Porter Constr. Co. v.
Berry, 136 Or 80-, 298 P 179.
Texas. Galveston, H. & S. A. R.
Co. v. Eaten (TexCivApp), 44 SW
562.
Virginia. Ragland & Co. v. But-
ler, 18 Gratt. (Va) 323.
West Virginia. State v. Cain, 20
WVa 679; State v. Sutfin, 22 WVa
295
FOEM AND ARRANGEMENT
•103
experience no doubt as to their significance.98 But where the
instruction is not misleading to an intelligent jury, it is not
material that it is not expressed in the most precise and elegant
English.9®
Whether an instruction is misleading depends upon how and
in what sense, under the evidence and the circumstances of the
trial, ordinary men would understand it.1
This rule is violated by an instruction which is involved,2
or which is so verbose as to cause the jury to lose the train of
771; Ward v. Brown, 53 WVa 227,
44 SE 488; State v. Davis, 58 WYa
94, 51 SE 230; Walker v. Strosnider,
67 WVa 39, 67 SE 1087, 21 AnnCas
1; Angrist v. Burk, 77 WVa 192,
87 SE 74; Chambers v. Spruce Light-
ing Co., 81 WVa 714, 95 SE 192;
Wilson v. Elkins, 86 WVa 379, 103
SE 118; State v. Murphy, 89 WVa
413, 109 SE 771.
Wisconsin. Sullivan v. Collins,
107 Wis 291, 83 NW 310; Martin v.
Ebert, 245 Wis 341, 13 NW2d 907,
152 ALE 1142.
98 State v. Green, 45 Nev 297, 202
P 368. See also People v. Paddock,
3:00 111 590, 133 NE 240.
99 Indiana. Hauss v. Niblack, SO
Ind 407.
Montana. Tiggerman v. Butte, 44
Mont 138, 119 P 477.
Washington. It is not demanded
that the instruction be expressed in
the most simple and direct language
but it is enough if the court gives
such instructions as are readily un-
derstood and are not likely to mis-
lead the ordinary mind. Carson v.
Old Nat. Bank, 37 Wash 279, 79 P
927.
1 Florida. Georgia Southern &
P. By. Co. v. Hamilton Lbr. Co., 63
Pla 150, 58 S 838.
Illinois. Young v. Fairfield, 173
IllApp 311.
Missouri. The test of the correct-
ness of instructions lies not in the
indulgence of that close analysis
which the lawyer in the seclusion of
his office and with the aid of his
books and the trial or appellate
courts, with the benefit of briefs and
arguments of learned counsel before
them, giy§ to the
as to how those instructions will
naturally be understood by the aver-
age men who compose our juries, on
whose judgment on the facts the
courts must act. When instructions
are so involved as to cloud the real
issue and require careful, critical
examination on the part of the trial
and of the appellate courts to deter-
mine exactly what they mean or to
determine what inference can be
drawn from them, the very object of
instructing a jury is defeated.
Knapp v. Hanley, 153 MoApp 169,
132 SW 747.
2 Alabama. Ragland v. State, 125
Ala 12, 27 S 983; Simmons v. State,
145 Ala 61, 40 S 660; Turner v.
State, 160 Ala 40, 49 S 828; Penry
v. Dozier, 161 Ala 292, 49 S 909;
Phillips v. State, 162 Ala 14, 50 S
194; Birmingham Ry., Light &
Power Co. v. Milbrat, 201 Ala 368,
78 S 224; Martin v. State, 2 AlaApp
175, 56 S 64; Faulk v. State, 4 Ala
App 177, 59 S 225; Southern Ry. Co.
v. Hobson, 4 AlaApp 408, 58 S 751;
Evans v. State, 17 AlaApp 155, 82
S 645.
California. People v. Doble (Cal
App), 257 P 81.
Florida. Bass v. State, 58 Fla 1,
50 S 531.
Illinois. People v. King, 276 111
138, 114 NE 601; Bourland v. Louis-
ville & N. R. Co., 199 IllApp 126;
Pickens v. Kankakee, 200 IllApp 547;
Duncan v. Kammeier, 206 IllApp
207.
Maryland. Gordon v. Opalecky,
152 Md 536, 137 A 299.
Minnesota. Pearson v. United
States Fidelity & Guaranty Co., 138
Minn 240, 164 NW 919,
103
INSTRUCTIONS — RULES GOVERNING
296
thought;3 or where it states conflicting or inconsistent proposi-
tions;4 or when there is inaccuracy in the statement of facts;5
or where it refers to a contingency, but omits to say what the
contingency is;6 or where it combines in one instruction several
unrelated propositions;7 or where the instruction is susceptible
of the construction that contributory negligence can be estab-
lished only by the evidence of the defendant ;8 or where it gives
several definitions of the offense for which accused is being
tried;9 or where the charge contains numerous and complicated
instructions on reasonable doubt ; ' ° or where it places upon one
party the burden of proving a fact admitted by his opponent ; ' '
or places the burden of proof on the wrong party;12 or the
Oklahoma. Friedman v. Weisz,
8 Okl 392, 58 P 613; Adair v. State,
15 OklCr 619, 180 F 253.
Texas. Barbee v. State, 58 TexCr
129, 124 SW 961.
Virginia. More than one correct
proposition of law may be set out
in same instruction where no con-
fusion is likely to result. Abernathy
v. Emporia Mfg. Co., 122 Va 406, 95
SE 418.
West Virginia. State v. Greer, 22
WVa 800.
Wisconsin. An instruction is er-
roneous where so worded as to be
difficult to understand and to admit
reasonably of a construction that
would mislead the jury on a ma-
terial point. Buel v. State, 104 Wis
132, 80j NW 78.
3 Illinois. Scott v. Parlin & Oren-
dorff Co., 146 IllApp 92, affd. in 245
111 460, 92 NE 318.
Missouri. Williams v. Ransom,
234 Mo 55, 136 SW 349; Stid v.
Missouri Pac. By. Co., 236 Mo 382,
139 SW 172.
Rhode Island. Demara v. Rhode
Island Co. (RI), 103 A 708.
Virginia. Reid v. Medley's Admr.,
118 Va 462, 87 SE 616.
4 Colorado. Trimble v. Collins, 64
Colo 464, 172 P 421.
Illinois. Hostettler v. Mushrush,
194 IllApp 58.
Indiana. Bump v. McGrannahan,
61 IndApp 136, 111 NE 640.
Kentucky. American Book Co. v.
Archer, 170 Ky 744, 186 SW 672.
Missouri. Ware v. Flory, 199 Mo
App 60, 201 SW 593 (definition of
domicile as permanent home).
Nebraska. Bryant v. Modern
Woodmen, 86 Neb 372, 125 NW 621,
27 LRA (N. S.) 326, 21 AnnCas 365.
North Carolina. Tillotson v. Fulp,
172 NC 499, 90 SE 500.
Ohio. Aetna Ins. Co. v. Reed, 33
OhSt 283; Montanari v. Haworth,
108 OhSt 8, 140 NE 319.
Oklahoma. Petroleum Iron Works
Co. v. Bullington, 61 Okl 311, 161 P
5B8.
West Virginia. Bartley v. West-
ern Maryland Ry. Co., 81 WVa 795,
95 SE 443.
5 Inlet Swamp Drainage Dist. v.
Gehant, 286 111 558, 122 NE 127.
e Gambrill v. Schooley, 95 Md 260,
52 A 500, 63 LRA 427.
7 Beam Motor Car Co. v. Loewer,
131 Md 552, 102 A 908.
8Lyon v. Phillips (TexCivApp),
196 SW 995.
9 People v. Monahan, 59 Cal 38&
10 People v. Scott, 284 111 465, 120
NE 553.
1 ' Florida. Seaboard Air Line Ry.
Co. v. Hess, 73 Fla 494, 74 S 500.
Missouri. Sexton v. Lockwood
(MoApp), 207 SW 856.
Ohio. Price v. Taylor, 12 OLA
621.
Texas. Dodson v. Watson (Tex
CivApp), 225 SW 586.
1 2 McNutt v. Kauff man, 26 OhSt
127; Cincinnati Trac. Co. v. Forrest,
73 OhSt 1, 75 NE 818; Cincinnati
Trac, Co, v, Stephens, 75 OhSt 111,
297 FORM AND ARRANGEMENT § 103
instruction contains several independent conditions or propo-
sitions, any one of which, if true, would have compelled a
verdict for the defendant, whereas only one is covered by the
predicated statement of facts;13 or where the court uses the
facts of another case as an illustration ; ! 4 or if it is susceptible
of two constructions.15 In an action on an insurance policy, a
charge is misleading which tells the jury to find a verdict for
the plaintiff for the amount of the policy with interest, twenty-
five per cent damages, and attorney fees, or to find for the
defendant without setting forth the basis for either verdict ' 6
An inadvertent statement, or mere slip of the judge's tongue,
is not always prejudicial error. It may be harmless in view of its
context and the thoroughness of the whole charge on the issues
of the case.17 The inadvertent use of the word "defendant" for
"plaintiff" or vice versa is not generally held to render an in-
struction misleading if the case of inadvertence is plain.18
Adopting a charge prepared for a particular case to guide
a jury in dissimilar cases is unsafe and often calculated to
mislead. f 9
It is possible for an instruction to be abstractly correct and
yet be susceptible of a misleading interpretation. Hence, if under
such circumstances it is not modified in such a manner as to be
clear, it should be refused.20
It has been judicially declared that the instructions should
be short, concise, and directly to the point.21 The length of an
instruction may render it objectionable but this is not a fatal
79 NE 235; List & Son Co. v. Chase, tucky Utilities Co., 179 Ky 114, 200
80 OhSt 42, 88 NE 120, 17 AnnCas SW 367; Turner v. Commonwealth,
61; Newman Mfg. Co. v. Fisler, 81 185 Ky 382, 215 SW 76; W. J. Wil-
OhSt 499, 91 NE 1135; Dykeman v. Hams, Inc. v. Cummings (TexCiv
Johnson, 83 OhSt 126, 93 NE 626, App), 65 SW2d 379.
8 OLR 448; Montanari v. Haworth, l9 Harrington v. State, 19 OhSt
108 OhSt 8, 140 NE 319. 264.
1 3 Jacksonville Elec. Go. v. Adams, 20 Alabama. Torian v. Ashf ord,
50 Pla 429, 39 S 183, 7 AnnCas 241. 216 Ala 85, 112 S 418.
1 4 State v. Tapp, 105 SC 55, 89 California. People v. Arnold, 20
SE 394. CalApp 35, 127 P 1060.
1 s Carpenter v. Connecticut Gen- Illinois. Weltz v. Connell, 196
eral Life Ins. Co., 68 F2d 69; Ham- IllApp 211; Edwall v. Chicago, R. I.
mond v. Thacker Coal & Coke Co., & P. R. Co., 208 IllApp 489.
105 WVa 423, 143 SE 91. Iowa. Gray v. Chicago, R. I. &
• « Scottish Union & Nat. Ins. Co. P. Ry. Co., 160 la 1, 139 NW 934.
v. Fortesque, 37 GaApp 366, 140 Kansas. State v. Ingram, 16 Kan
SE 893. 14.
1 7 City of Summerville v. Sellers, New York. Hills v. Interborough
94 GaApp 152, 94 SE2d 69. Rapid Transit Co., 176 AppDiv 754,
<«Benton v. Harley, 21 GaApp 163 NYS 1010.
168, 94 SE 46; Magowan v. Ken- 2I Duthie v. Washbura, 87 Wis
§104
INSTRUCTIONS — RULES GOVERNING
298
defect where it is clearly written and not difficult to follow.22
But on the other hand, an instruction should be refused if its
length, together with verbosity and uncertainty of meaning,
render it likely to mislead the jury.23 Instructions can be so
prolix as to constitute prejudicial error because of confusion to
the jury and the practical impossibility of their being able to
grasp the import of the charge. This occurred in a criminal
case where the instructions were so extended that eight hours
were consumed in their delivery, and on appeal they constituted
one hundred sixty-three pages of the printed record.24
§ 104. Contradictory instructions.
Instructions are misleading if the court gives contradictory
instructions on a material issue.
The theory is that instructions when read together must be
harmonious.25 For the effect of contradictory instructions must
always be to confuse,26 and it cannot be known which instruc-
231, 58 NW 380; Hoffman v. Reg-
ling:, 217 Wis 66, 258 NW 347.
22 Illinois. People v. Gormach,
302 111 332, 134 NE 756, 29 ALE
1120.
Iowa. See Livingstone v. Dole,
184 la 1340, 167 NW 639.
Missouri. Wolfe v. Payne, 294
Mo 170, 241 SW 915; Eoy v. Kansas
City, 204 MoApp 332, 224 SW 132;
Weddle v. Tarkio Elec, & Water Co.
(MoApp), 230 SW 386.
An instruction was considered too
long where it covered five pages of
the record and covered a phase of
the case which was of a simple
nature. Burton v. Maupin (MoApp),
281 SW 83.
Ohio. Instruction held not re-
versible error because too long.
Schroeder v. Cleveland Elec. Ey. Co.,
24 OhCirCt (N. S.) 585, 35 OhCir
Dec 19; Boswell v. N. 0. Trac. &
L. Co., 1 OLA 314.
Instruction held reversible error
because too long. American Steel
Packing Co. v. Conkle, 86 OhSt 117,
99 NE 89.
Instruction held not reversible er-
ror because too short. Lenart v.
Cochran, 2 OLA 537.
23 Leahy v. Monk, 162 Okl 256, 19
P2d 1077.
24 People v. Kresel, 243 AppDiv
137, 277 NYS 168.
25 Arkansas. Wells v. State, 102
Ark 627, 145 SW 531.
California. Starr v. Los Angeles
Ry. Corp., 187 Cal 270, 201 P 599;
Torvend v. Patterson, 136 CalApp
120, 28 P2d 413; Maggini v. West
Coast Life Ins. Co., 136 CalApp 472,
29 P2d 263.
Illinois. Doty v. O'Neill, 272 111
App 212.
Michigan. Fink v. Superior Lamp
& Shade Co., 238 Mich 390, 213 NW
453.
Mississippi. Columbus & G. Ey.
Co. v. Phillips, 160 Miss 390, 133 S
123.
Missouri. Nagy v. St. Louis Car
Co. (Mo), 37 SW2d 513; Finn v.
Indemnity Co. (MoApp), 297 SW
175; Tunget v. Cook (MoApp), 84
SW2d 970.
New Mexico. Hall v. Britt, 35
NM 371, 297 P 987.
Ohio. Swisher v. Kimbrough, 25
OhApp 233, 157 NE 823.
Oklahoma. Younger v. Blanchard
Hdw. Co., 120 Okl 279, 251 P 56.
Rhode Island. Souza v. United
Elec. Eys. Co., 51 El 124, 152 A
419.
26 Federal. Mideastern Contract-
ing Corp. v. O'Toole, 55 F2d 909.
299
FORM AND ARRANGEMENT
§104
tion the jury followed.27 Hence, if the Instructions conflict upon
a material point, they are erroneous.28
Arkansas. Rector v. Robins, 74
Ark 437, 86 SW 667; Arkansas
Shortleaf Lbr. Co. v. Wilkinson, 149
Ark 270, 232 SW 8.
Indiana. Fowler v. Wallace, 131
Ind 347, 31 NE 53.
Michigan. Luck v. Gregory, 257
Mich 562, 241 NW 862.
Minnesota. Naylor v. McDonald,
185 Minn 518, 241 NW 674.
Missouri. Wilson v, Chattin, 335
Mo 375, 72 SW2d 1001; Dawes v.
Starrett, 336 Mo 897, 82 SW2d 43;
Mutual Life v. McKinnis (MoApp),
47 SW2d 564.
New Jersey. State v. Albertalli
(NJ), 112 A 724.
New York. Weissbard v. Klein,
242 AppDiv 640, 272 NYS 247.
North Carolina. Supervisor &
Comrs. v, Jennings, 181 NO 393,
107 SE 312.
Ohio. Reserve Trucking Co. v.
Fairchild, 128 OhSt 519, 191 NE
745.
Oklahoma. Enghlin v. Pittsburgh
County Ry. Co., 169 Okl 106, 36
P2d 32, 94 ALR 1180.
Oregon. McCabe v. Kelleher, 90
Or 45, 175 P 608.
Texas. Buie v. State, 128 TexCr
657, 83 SW2d 996.
Washington. Baker v. Rosaia, 165
Wash 532, 5 P2d 1019.
Wisconsin. Bleiler v. Moore, 94
Wis 385, 69 NW 164.
27 Illinois. People v. Willy, 301
111 307, 133 NE 859.
Missouri. Bennett v. Standard
Ace. Ins. Co., 209 MoApp 81, 237
SW 144.
Ohio. Industrial Gomm. v. Ripke,
129 OhSt 649, 196 NE 640, 3 OhO
35.
West Virginia. Penix v. Grafton,
86 WVa 278, 103 SE 106; Zinn v.
Cabot, 88 WVa 118, 106 SE 427;
Thomas v. Monongahela Valley
Trac. Co., 90 WVa 681, 112 SE 228.
Wisconsin. Eggett v. Allen, 106
Wis 633, 82 NW 556; Yerkes v.
Northern Pac. Ry. Co., 112 Wis
184, 88 NW 33, 88 AmSt 961;
Schmidt v. State, 124 Wis 516, 102
NW 1071.
28 Federal. In Lewis v. United
States, 74 F2d 173, instructions were
held not so inconsistent as to war-
rant reversal.
Alabama. Carter v. Fulgham, 134
Ala 238, 32 S 684.
Arkansas. Rector v. Robins, 74
Ark 437, 86 SW 667; St. Louis, I.
M. & S. Ry. Co. v. Hudson, 95 Ark
506, 130 SW 534; Chicago Mill &
Lbr. Co. v. Johnson, 104 Ark 67,
147 SW 86; Simmons v. Lusk, 128
Ark 336, 194 SW 11; Harkrider v.
Howard, 134 Ark 575, 203 SW 14.
California. Bank of Stockton v.
Bliven, 53 Cal 708; Abbott v. Arp,
179 Cal 328, 176 P 458; Tognazzini
v. Freeman, 18 CalApp 468, 123 P
540; DeSoto v. Pacific Elec. Ry. Co.,
49 CalApp 285, 193 P 270; Pittaxn v.
Riverside, 128 CalApp 57, 16 P2d
768.
Colorado. Barr v. Colorado Springs
& I. Ry. Co., 63 Colo 556, 168 P
263; Arnett v. Huggins, 18 ColoApp
115, 70 P 765.
Connecticut. Pollak v. Danbury
Mfg. Co., 103 Conn 553, 131 A 426.
Florida. Escambia County Elec.
Light & Power Co. v. Sutherland,
61 Fla 167, 55 S 83; Farnsworth v.
Tampa Elec. Co., 62 Fla 166, 57 S
233.
Illinois. People v. Emmel, 292 111
477, 127 NE 53; Wood v. Olson, 117
IllApp 128.
Indiana, Fowler v. Wallace, 131
Ind 347, 31 NE 53; Michigan City
v. Werner, 186 Ind 149, 114 NE
636; State ex rel. Roe v. Dudley,
45 IndApp 674, 91 NE 605; Steele v.
Michigan Buggy Co., 50 IndApp 635,
95 NE 435.
Iowa. Kerr v. Topping, 109 la
150, 80 NW 321; State v. Glaze, 177
la 457, 159 NW 260; Peterson v.
McManus, 187 la 522, 172 NW 460.
Kentucky. Wells v. Cumberland
Tel. & T. Co., 178 Ky 261, 198 SW
104
INSTRUCTIONS — RULES GOVERNING
300
Even if one of the instructions is a correct statement of the
law, most courts agree that the correct instruction does not cure
the error in giving another that is inconsistent with it.29 Some
courts, however, hold that the error is cured if the incorrect
instruction is expressly withdrawn,30 or that conflicting instruc-
tions must be prejudicial,31 or tend to mislead the jury in
deliberating on conflicting evidence.32
721; Equitable Life Assur. Soc, v.
McDaniel, 223 Ky 505, 3 SW2d 1093.
Maryland. Philadelphia & B. Cent.
R. Co. v. Holden, 93 Md 417, 49 A
625; Canton Lbr. Co. v. Liller, 112
Md 258, 76 A 415.
Michigan. Lake Shore & M. S.
Ry. Co. v. Miller, 25 Mich 274;
Pettersch v. Grand Rapids Gas Light
Co., 245 Mich 277, 222 NW 123.
Missouri. State v. Herrell, 97
Mo 105, 10 SW 387, 10 AmSt 289;
Kelley v. United Rys. Co., 153 Mo
App 114, 132 SW 269; Crone v.
United Rys, Co. (Mo), 236 SW 654;
Mott v. Chicago R. I. & P. Ry. Co.
(MoApp), 79 SW2d 1057.
Nebraska. Omaha Street Ry. Co.
v. Boesen, 68 Neb 437, 94 NW 619.
North Carolina. Edwards v. At-
lantic Coast Line R. Co., 129 NC 78,
39 SE 730; Brewer v. Ring, 177
NC 476, 99 SE 358.
Ohio. Miller & Co. v. Florer, 19
OhSt 356; Pendleton Street R. Co.
v. Stallmann, 22 OhSt 1; Industrial
Comm. v. Ripke, 129 OhSt 649, 196
NE 640, 3 OhO 35; St. Bernard v.
Gohman, 10' OhApp 402, 31 OCA
273; Ohio Stock-Pood Co. v. Gint-
ling, 22 OhApp 82, 153 NE 341;
Swisher v. Kimbrough, 25 OhApp
233, 157 NE 823; McCombs v.
Landes, 35 OhApp 164, 171 NE 862,
32 OLR 199; Interstate Motor
Freight Corp. v. Beecher, 37 OhApp
23, 174 NE 27.
Oklahoma. Payne v. McCormick
Harvesting Mach. Co., 11 Okl 318,
66 P 287; Schulte v. Garrett, 99
Okl 52, 225 P 904.
Oregon. Malloy v. Mar shall- Wells
Hdw. Co., 90 Or 303, 173 P 267, 175
P 659, 176 P 589.
Pennsylvania. Elk Tanning Co.
v. Brennan, 203 Pa 232, 52 A 246.
South Carolina. Warren v. Wil-
son, 89 SC 420, 71 SE 818, 992.
Texas. Patterson v. Williams
(TexCivApp), 225 SW 89.
Utah. Konold v. Rio Grande W.
Ry. Co., 21 Utah 379, 60 P 1021, 81
AmSt 693.
Vermont. W. B. Johnson & Co.
v. Central Vermont Ry. Co., 84 Vt
486, 79 A 1095.
Virginia. Winchester v. Carroll,
99 Va 727, 40 SE 37.
Washington. Lee v. H. E. Glea-
son Co., 146 Wash 66, 262 P 133.
West Virginia. McKelvey v.
Chesapeake & 0. Ry. Co., 35 WVa
500, 14 SE 261; Stuck v. Kanawha
& M. R. Co., 78 WVa 490, 89 SE
280; Producers Coal Co. v. Mifflin
Coal Min. Co., 82 WVa 311, 95 SE
948.
29 Federal. Nicola v. United
States, 72 F2d 780.
Indiana. Emge v. Sevedge, 118
IndApp 277, 76 NE2d 687.
North Carolina. Green v. Bowers,
230 NC 651, 55 SE2d 192.
Pennsylvania. Hisak v. Lehigh
Valley Transit Co., 360 Pa 1, 59 A2d
900.
30Cosgrave v. Malstrom, 127 NJL
505, 23 A2d 288; Horton v. Smith,
128 NJL 488, 27 A2d 193.
1 l Cole v. New York Cent. R. Co.,
150 OhSt 175, 37 OhO 459, 80 NE2d
854.
32 Cover v. Platte Valley Public
Power & Irrigation Dist, 162 Neb
146, 75 NW2d 661.
SOI FORM AND ARRANGEMENT § 104
Illustrations of conflict in civil cases.
(1). Libel. In an action for libel there is inconsistency be-
tween an instruction that the article involved is libelous per se,
and another instruction authorizing the jury to find a verdict for
either party.33 In libel action an instruction that good faith
would relieve the defendant from liability was inconsistent with
another that good faith was not a defense but only went in miti-
gation of damages.34
(2) . Damages. Instructions should be refused where they are
so absolutely inconsistent upon the measure of damages that
conformity with one necessarily implies a disregard of the
other.35
" (3) . Trespass. Where the court instructs that the plaintiff is
entitled, in any event, to recover damages for the tdftkms cutting
of certain timber, and in a subsequent part of the charge leaves
the jury to determine whether, under such circumstances, there
can be any liability, the effect will be so to confuse the jury
as to lead to an erroneous verdict.36 An instruction that blankets
are not baggage is inconsistent with an instruction leaving it
to the determination of the jury whether they were baggage.37
(4) . Negligence. In an automobile damage action there is an
inconsistency in- & charge .that -unless defendant's rate .of spead
was unreasonable and improper his driving in excess of the
speed prescribed by statute would not authorize a recovery for
plaintiff.38 In an accident case based on injury from street car,
there is an inconsistency where the court tells the jury that the
issue is whether the car gave a violent and unusual jolt, and
further charges them that if they find the car's moving was
but incidental to its operation they should find for the defendant
even if the car had given a violent jolt.39 The inconsistency
may occur in the laying down of two contradictory rules with
respect to the care required of the driver of an automobile.40
.There was conflict between an instruction that the driver
of an automobile must use all possible care to avoid injuring
pedestrians and one that "he must use the care of- an ordinarily
prudent man to avoid causing injury.41
33Hansen v. Parks, 139 Wash 37 Pullman Co. v. Ouster (Tex
241, 246 P 584. CivApp), 140 SW 847.
34 Warren v. Pulitzer Publishing 38Frochter v. Arenholz, 242 111
Co., 336 Mo 184, 78 SW2d 404. App 93.
35 Arnett v. Huggins, 18 Colo App 39 Laible v. Wells, 317 Mo 141,
115, 70 P 765; Catanzaro Di Giorgio 296 SW 428.
Co. v. F. W. Stock & Sons, 116 Md 40Morehouse v. Everett, 141
201, 81 A 385. Wash 399, 252 P 157, 58 ALR 1482.
36 Elk Tanking1 Co. v. Brerman, 4I Greenhalch v. Barber (RI), 104
20S Pa 2&2, -"52 A* 246. • *• • A 769. See Haton v'. Illinois • Ceiil
§ 104 INSTRUCTIONS — RULES GOVERNING 302
The initial part of an instruction which told the jury that
it was not negligence as a matter of law for a person to go upon
a street car track without looking or listening, contradicted a
concluding portion of the same instruction which stated that
such persons must use due care and that ordinary care means
that he must look and listen before going on the track, especially
where the track is partially obstructed42
In action for damages to property allegedly resulting from
blasting operations in a stone quarry, submission of question
of defendant's alleged negligence together with a charge which
in eifect stated to the jury that defendant was liable in the
absence of negligence if damage was result of blasting opera-
tions conducted in the quarry, was error, since charge was con-
flicting and confusing.43
(5). Miscellaneous. It is error to instruct on the law of a
stated issue, and then to withdraw that issue from the considera-
tion of the jury on the ground that there was no evidence to
support it.44
In an action to recover insurance, there is a conflict between
an instruction that the insurer had a right to rely on the state-
ment of the insured, and another instruction that the insurer's
lack of knowledge of the facts in making settlement was of no
avail.4*
Illustrations of conflict In criminal cases.
The principle is the same in criminal cases.46 A verdict
R. Co., 335 Mo 1186, 76 SW2d 127, 4S Detroit Fire & Marine Ins. Co.
for similar application of the prin- v. Sargent, 42 Idaho 369, 246 P 311.
ciple. 46 Federal. Sunderland v. United
42 Roanoke Ry. & Elec. Co. v. Car- States, 19 F2d 202.
roll, 112 Va 598, 72 SE 125. Alabama. Gordon v. State, 147
In malpractice action an instruc- Ala 42, 41 S 847.
tion simply defining negligence was Arizona. Hurley v. State, 22 Ariz
inconsistent -with one relative to the 211, 196 P 159.
degree of skill required of specialists Arkansas. An instruction that the
which gave the jury no rule for accused must establish the defense
applying it to the facts of the case, of alibi offered or must be convicted
Owens v. McCleary, 313 Mo 213, was in conflict with an instruction
281 SW 682. that if the proof on the subject
An instruction on last clear chance raises a reasonable doubt as to guilt,
precludes a contradictory one on as- the accused must be acquitted. Wells
sumption of risk. Amos v. Flem- v. State, 102 Ark 627, 145 SW 531.
ing, 221 MoApp 559, 285 SW 134. California. The giving of an in-
43 Vogel v. Suburban Constr, Co., struction inconsistent with a proper
144 PaSuper 588, 20 A2d 905. one is calculated to prevent the jury
44 Logan v. Logan, 97 IndApp from giving due consideration to the
200, 180 NE 32. evidence in the light ot the coTre'ct
SOS
AND ARRANGEMENT
§1Q4
rendered on conflicting instructions will be set aside.47 The
defendant is entitled to instructions that are free from contra-
dictions, and that are clear, succinct, and unambiguous.48
The error in an instruction which incorrectly states the law
is not nullified by another instruction which contains a correct
statement of the law on the subject,49 unless the erroneous in-
struction is withdrawn.80
The rule is all the more important where the evidence is
conflicting.51 So, it is reversible error to predicate an instruc-
tion on a theory not covered by the indictment, unsupported in
the evidence, and in conflict with a correct instruction which
has been given at the request of the defendant.52 There is a
conflict between an instruction on the right of the accused to
act on appearances and another on the right to kill if deceased
sought to prevent arrest.53 An instruction to acquit if accused
did not have a specific intent to kill is inconsistent with an in-
struction submitting manslaughter.54 In a prosecution for homi-
cide, the giving of an erroneous instruction as to the law of
self-defense, prejudicial to the accused, is not cured by the giving
of a correct instruction thereon.65
instruction. People v. Ross, 19 Cal
App 409, 126 F 375.
Colorado. Eby v. People, 63 Colo
276, 165 P 765.
Idaho. State v. Webb, 6 Idaho
428, 55 P 892; State v. Hines, 43
Idaho 713, 254 P 217.
Illinois. People v. Washington,
327 111 152, 158 NE 386.
Indiana. McDougal v. State, 88
Ind 24; Blume v. State, 154 Ind
343, 56 NE 771.
Iowa. State v. Walker, 192 la
823, 185 NW 619.
Missouri. State v. Fellers, 140
MoApp 723, 127 SW 95; State v.
Ward, 337 Mo 425, 85 SW2d 1.
Montana. State v. Peel, 23 Mont
358, 59 P 169, 75 AmSt 529; State
v. Elaine, 45 Mont 482, 124 P 516.
Texas. Yeager v. State, 106 Tex
Cr 462, 294 SW 200; Shannon v.
State, 117 TexCr 429, 36 SW2d 521.
If the court has instructed that a
certain witness was an accomplice,
such instruction conflicted with an-
other to the effect that the jury
could not convict the defendant on
the testimony of the witness if they
believed him to be an accomplice;
for one instruction determines as a
matter of law that the witness was
an accomplice, and the other leaves
the determination to the jury wheth-
er he was an accomplice. Garza v.
State, 125 TexCr 447, 69 SW2d 110.
West Virginia. State v. Cain, 20
WVa 679.
47 People v. Gilday, 351 111 11,
183 NE 573.
48 Perkins v. State, 117 TexCr
415, 37 SW2d 163.
49 People v. Barnett, 347 111 127,
179 NE 450.
*° Flick v. State, 207 Ind 473, 193
NE 603.
5 f Rector v. Robins, 74 Ark 437,
86 SW 667.
52 State v. Newman, 101 WVa
356, 132 SE 728.
53 Mercer v. Commonwealth, 150
Va 588, 142 SE 369.
*4 Merka v. State, 82 TexCr 550,
199 SW 1123.
B« People v. Miller, 403 111 561,
87 NE2d 649.
§. 104 INST&UCTIDKS— &ULES • GOVERNING 304
. Instructions not in conflict.
Instructions are not inconsistent where they merely assert
alternative propositions on either of which a claimant may
recover,56 or are merely supplementary or explanatory of instruc-
tions given.®7 Neither are instructions contradictory which make
plain and definite certain matters stated indefinitely in prior
instructions.58 There is harmony between an instruction in a
negligence case that the defendant -must use the utmost care
of a cautious person, and another that it must guard against
accident in the manner that a reasonable and prudent person
would have foreseen to have been necessary.59
There is no conflict between an instruction that tells the
jury they are at liberty to disregard the testimony of a witness
they believe has testified falsely, and another which informs
them that they have no right to reject the testimony of any
witness without good reason.60 There was no conflict between
an instruction that it was the duty of the master to furnish
reasonably safe appliances and an instruction that the test of
the duty of the master is the ordinary conduct of a reasonably
prudent man in such situation.6' Nor was there conflict between
an instruction that negligence was not presumed and one that
it might be inferred from facts established by evidence.62 Nor
is there a case of inconsistency in instructions which go no
further than to state the theories of the parties to the case.63
56 Iowa. See also Powers v. Iowa Iowa. Black v. Chicago Great
Glue Co., 183 la 1082, 168 NW 326. Western R. Co., 187 la 904, 174
Maryland. Huff v. Simmers, 114 NW 774.
Md 548, 79 A 1003. Texas. Ellis v. State, 80 TexCr
Missouri. Robison v. Floescli 208, 189 SW 1074.
Constr. Co. (MoApp), 242 SW 421. 5S Gray v. Washington Water
Nebraska. There was no incon- Power Co., 30 Wash 665, 71 P 206.
slstency where the court in one in- sg Rayl v. Syndicate Bldg. Co., 118
struction told the jury what the CalApp 396, 5 P2d 476.
plaintiff was required to prove in 6O Moore v. Pacific Mut. Life Ins.
order to recover and in another par- Co., 128 Neb 605, 259 NW 916.
agraph informed them what would 6I Trumbull v. Martin, 137 Ark
be a complete defense to the matters 495, 208 SW 803.
mentioned in the former paragraph 62 Drake v. Slessor, 65 Colo 292,
and the instructions when considered 176 P 301.
together properly stated the law ap- 63 Arkansas. Wylie v. State, 140
plicable to the facts of the case. Ark 24, 215 SW 593; Subiaco Coal
Bloomfield v. Pinn, 84 Neb 472, 121 Co. v. Krallman, 143 Ark 469, 220
NW 716. SW 664.
Virginia. Richmond v. -Gentry," 111 California. Burge v. Albany
Va 160, 68 SE 274. Nurseries, Inc., 176 Cal 313, 168 P
57 Arkansas. Bush v. Brewer, 136 343.
Aa-k 246, 206 SW 322; Central Missouri. Hendrix v. Corning,
Coal & Coke Co. v. Burns, 140 Ark 201 MoApp 555, 214 SW 253; Cos-
147, 215 SW 265. how v. Otey (Mo), 222 SW 804;
305
FORM AND ARRANGEMENT
§105
There is no inconsistency or conflict in telling" the jury that the
accused might be convicted of murder if he advised, aided, and
abetted in the killing, although his defense was alibi.64
§ 105. Undue prominence to particular features In civil cases.
Instructions should not be given which may mislead the jury
by giving undue prominence to some particular feature, phase or
theory of the case.
If an instruction lays especial stress upon certain features
of the case in such a way as to draw the jury's attention away
from other phases, it should be refused,65 even if the instruction
asserts a correct principle of law.66
Brown & Feirwick Real Estate &
Abstract Co. v. Marks (MoApp),
226 SW 55; Stussy v. Kansas City
Rys. Co. (MoApp), 228 SW 531.
Oklahoma. Chicago, R. I. & P.
Ry. Co. v. Morton, 57 Okl 711, 157
P 917.
Virginia. Stapleton v. Common-
wealth, 123 Va 825, 96 SE 801;
Vaughan v. Mayo Milling Co., 127
Va 148, 102 SE 597.
64 State v. Uhls, 121 Kan 377,
587, 247 P 1050, reh. den. 121 Kan
587, 249 P 597.
65 Federal. Northern Cent. Coal
Co. v. Barrowman, 246 F 906; Aetna
Life Ins. Co. v. Kelley, 70 F2d 589,
93 ALE, 471.
Alabama. Rutherford v. Dyer,
146 Ala 665, 40 S 974; Western
Union Tel. Co. v. Robbins, 3 AlaApp
234, 56 S 879; Birmingham Candy
Co. v, Sheppard, 14 AlaApp 312, 70
S. 193 .(undue prominence, to fact .of
minority of injured person); Minor
v. Coleman, 16 AlaApp 5, 74 S 841
(previous depredations of dog killed
while molesting property).
Arkansas. Grayling Lbr. Co. v.
Hemingway, 128 Ark 535, 194 SW
508.
California. Treadwell v. Nickel,
194 Cal 243, 228 P 25; Stuart v.
Preston, 2 CalApp2d 310, 38 P2d
155, rek den. in 39 P2d 441.
District of Columbia. Sullivan
v. Capital Trac. Co., 34 AppDC 358.
Florida. Jacksonville Elec. Co. v.
Adams, 50 Fla 429, 39 S 183, 7 Ann
Gas 241.
Georgia. Summers Buggy Co. v.
Estes, 34 GaApp 407, 130 SE 350.
Illinois. Slack v. Harris, 200 111
96, 65 NE 669; Hoffman v. Ernest
Tosetti Brew. Co., 257 111 185, 100
NE 531; Fox v. People, 84 IllApp
270; Gruber v. Adams, 155 IllApp
110; Trainer v. Baker, 195 IllApp
216.
Indiana. North v. Jones, 53 Ind
App 203, 100 NE 84.
Iowa. In re Townsend's Estate,
122 la 246, 97 NW 1108; Gray v.
Chicago, R. I. & P. Ry. Co., 160 la
1, 139 NW 934; Wilkins v. Keokuk
Elec. Co. (la), 174 NW 231.
Kansas. Kerr v. Coberly, 81 Kan
376, 105 P 520.
Kentucky, Jones v. Jones, 102 Ky
450, 43 SW 412; Chesapeake & O.
R. Co. v. Lang's Admx., 141 Ky 592,
133 SW 570.
Massachusetts. Kenny v. Ipswich,
178 Mass 368, 59 NE 1007; Roach
v. Hinchcliff, 214 Mass 267, 101 NE
383; Morrison v. Holder, 214 Mass
366, 101 NE 1067.
Michigan. Beurmann v. Van
Buren, 44 Mich 496, 7 NW 67; First
Nat. Bank v. Union Trust Co., 158
Mich 94, 122 NW 547, 133 AmSt
362.
Minnesota. Fransen v. Falk Paper
Co., 135 Minn 284, 160 NW 789;
Draves v. Minneapolis & St. P. Sub-
urban R. Co., 142 Minn 321, 172
NW 128.
Mississippi. Potera v. Brook-
haven, 95 Miss 774, 49 S 617; Hooks
v. Mills, 101 Miss 91, 57 S 545; Gur-
§105
INSTRUCTIONS — BULBS GOVERNING
306
Illustrations of overemphasis. A frequent example of this vice
occurs in instructions which single out facts favorable to a party
and lay stress on them without referring to matters tending to
overcome them,67 or single out facts unfavorable to a party
and stress them, without reference to favorable aspects.68 An
overemphasis occurs where the jury are told that in determining
the value of a dog they might consider that the plaintiff failed
to assess the dog.69 It is error for the court to single out the
testimony of witnesses for a landowner in condemnation proceed-
ings and instruct that if such witnesses wilfully overstated the
value of the land the jury could disregard their testimony to
the extent of the overvaluation.70 A tendered instruction em-
phasing a particular fact in dispute and pointing out a single
witness as the subject of impeachment, should be refused, as
ley v. Tucker, 170 Miss 565, 155 S
189.
Missouri. Corder v. O'Neill, 176
Mo 401, 75 SW 764; Hencke v. St.
Louis & H. R. Co., 335 Mo 393, 72
SW2d 798; Kepley v. Park Circuit
& Realty Co. (MoApp), 200 SW 750;
Henry v. Missouri Ins. Co. (MoApp),
68 SW2d 852.
Montana. Albertini v. Linden, 45
Mont 398, 123 P 400.
New Hampshire. Davis v. Con-
cord & M. R., 68 NH 247, 44 A 388.
North Dakota. Holmes v. Ander-
son, 50 ND 959, 198 NW 544.
Ohio. Cincinnati Trac. Co. v. Nel-
lis, 81 OhSt 535, 91 NE 1125; Simp-
son v. Newinger, 28 OhApp 133, 162
NE 439; Interstate Motor Freight
Corp. v. Beecher, 37 OhApp 23, 174
NE 27; Lake Shore & M. S. Ry. Co.
v. Whidden, 13 OhCirDec 85, 2 Oh
CirCt (N. S.) 544; Jahraus v. Fry-
man, 129 NE2d 200 (Court of Ap-
peals of Ohio, Montgomery County).
Oregon. Crossen v. Oliver, 41 Or
505, 69 P 308.
Rhode Island. Reynolds v. Nar-
ragansett Elec. Lighting Co., 26 RI
457, 59 A 393.
South Carolina. Carr v. Mouzon,
86 SC 461, 68 SE 661.
Texas. Ft. Worth Belt Ry. Co.
v. Johnson, 59 TexCivApp 105, 125
SW 387; Texas & N. 0. R. Co. v.
Syfan (TexCivApp), 43 SW 551; El
Paso v. Wiley (TexCivApp), 180
SW 661 (undue prominence to con-
tinuity of adverse possession) ; Hous-
ton Oil Co. v. Brown (TexCivApp),
202 SW 102.
Vermont. Vaillancourt v. Grand
Trunk Ry. Co., 82 Vt 416, 74 A 99.
Virginia. . Bradshaw v. Booth, 129
Va 19, 105 SE 555; Diamond Cab
Co. v. Jones, 162 Va 412, 174 SE
675.
Wisconsin. Fidelity Trust Co. v.
Wisconsin Iron & Wire Works, 145
Wis 385, 129 NW 615.
The court may properly refer to
features of the evidence, making no
attempt to give particular promi-
nence to any part, so as to suggest
the weight that should be given
thereto. Secard v. Rhinelander
Lighting Co., 147 Wis 614, 133 NW
45.
66 Alabama. Hanchey v. Brunson,
175 Ala 236, 56 S 971, AnnCas
1914C, 804.
New Hampshire. Davis v. Con-
cord & M. R., 68 NH 247, 44 A 388.
West Virginia. Cain v. Kanawha
Trac. & Elec. Co., 85 WVa 434, 102
SE 119.
67Raney v. Raney, 216 Ala 30,
112 S 313; Cerriglio v. Pettit, 113
Va 533, 75 SE 303.
6sTuckel v. Hartford, 118 Conn
334, 172 A 222.
69 Missouri Pacific R. Co. v.
Green, 172 Ark 423, 288 SW 908.
70 People ex rel. Dept. of Public
Works & Bldgs. v. Hubbard, 355 111
196, 189 NE 23.
307 FORM AND ARRANGEMENT § 105
stating a rule as to credibility not contained in approved in-
structions.7 *
It is reversible error, where different injuries are pleaded
and there is some testimony tending to prove their existence,
for the trial court in addressing the jury to mention but one
of the alleged injuries, as such a charge unduly minimizes the
other injuries.72
Undue prominence may be given by underscoring portions
of instructions ; and this practice is condemned for its tendency
to cause the jury to undervalue the portions not so underscored.73
This objectionable prominence may occur where the court
charges that particular acts may or may not constitute negli-
gence,74 or unnecessarily stresses the question of contributory
negligence.75 It has been held error to repeat three times that
the plaintiff had the burden of proof, the result being con-
sidered an undue emphasis on the matter.76 Undue repetition
of statements, such as "you must find for the plaintiff," or
"you must find for the defendant," or of any other matter
emphasizing or deprecating the importance of any issue in the
case, may constitute error, if proper objection is made.77
No overemphasis found. An objection, however, that in the
instruction assailed the statute quoted in it was indented and
thus set out more prominently than the rest, was held to be
hypercritical/8 But, while the court should carefully avoid
singling out a particular fact or phase of the case in such a way
as to give it undue emphasis, yet it is within the bounds of
propriety to make mention of certain evidential facts and in-
struct as to the law applicable thereto.79 An instruction which
71 Gerick v. Brock, 120 Colo 394, Arizona. Wiser v. Copeland, 23
210 P2d 214. Ariz 325, 203 P 565.
72 Cleveland Ry. Co. v. Kozlowski, Missouri. See Gardner v. St.
128 OhSt 445, 191 NE 787. Louis Union Trust Co. (Mo), 85
73 Illinois. Wright v. Brosseau, SW2d 86.
73 HI 381; Warner Constr. Co. v. 7S Freire v. Kaupman, 245 App
Lincoln Park Comrs., 278 IllApp 42. Div 844, 281 NYS 408.
See also Bednar v. Mt. Olive & 76 Fantroy v. ScMrmer (MoApp),
Staunton Coal Co., 197 IllApp 216. 296 SW 235. See Galveston, H. &
Iowa. But see PMlpot v. Lucas, S. A. Ry. Co. v. Andrews (TexCiv
101 la 478, 70 NW 625, "where it is App), 291 SW 590.
held that the court may underscore 77 Bean v. Gorby, 80 Ariz 25, 292
words usually italicized in legal P2d 199.
treatises. 78 Fisher v. Johnson, 238 IllApp
Kentucky. But see Breckenridge 25.
v. Commonwealth, 176 Ky 686, 197 79 Haines v. Goodlander, 73 Kan
SW 395. 183, 84 P 986.
74 Federal. Boston Elevated Ry.
Co. v. Teele, 160 CCA 434, 248 F
424.
106
INSTRUCTIONS — RULES GOVERNING
308
told the jury that the driver of the automobile should not at-
tempt to pass a vehicle which was passing another automobile,
was held unobjectionable in a negligence case.80 The fact that
the contentions of one party are stated at greater length than
those of the other party does not conclusively show that undue
stress is laid upon the contentions of the former.8 ( An instruc-
tion is not defective merely because the court refers more often
to the theory of the plaintiff than to that of the defendant.82
Nor is the principle violated by instructions specifying different
species of negligence for which, if established, defendant might
be liable.83 So there is no undue emphasis of the matter of
damages by reason of their mention in different instructions.84
§ 106. Undue prominence to matters of evidence in civil cases.
The rule against undue emphasis is violated where an instruc-
tion places (1) extra stress upon specified evidential matters, (2)
or upon the testimony of a certain witness.
(1) The action of the court in directing attention to particu-
lar features of the evidence, in such a way as to single them out
and give them an undue prominence,, will constitute prejudicial
error.85 A trial judge should avoid directing especial attention
80 Sheetinger v. Dawson, 236 Ky
571, 33 SW2d 609.
81 Phinizy v. Bush, 135 Ga 678,
70 SE 243; May Bros. v. Srochi, 23
GaApp 33, 97 SE 277; Atlanta Gas-
light Co. v. Cook, 35 GaApp 622,
134 SE 198.
82 Cincinnati Trac. Co. v. Gra-
mont, 19 OhApp 272.
S3 Rio Grande, E. F. & S. F. Ry.
Co. v. Starnes (TexCivApp), 185 SW
366.
84 Bergen v. Tulare County Power
Co., 173 Cal 709, 161 P 269.
There may be undue emphasis in
singling out particular injuries for
which recovery may be had. St.
Louis Southwestern Ry. Co. v. Ay~
delott, 128 Ark 479, 194 SW 873.
85 Alabama. Pearson v, Adams,
129 Ala 157, 29 S 977; Keller v.
Jones & Weeden, 196 Ala 417, 72 S
89; Kuykendall v. Edmondson, 200
Ala 650, 77 S 24; Nashville, C. &
St. L. Ry. v. Blackwell, 201 Ala
657, 79 S 129; Miller v. Whittington,
202 Ala 406, 80 S 499 (will con-
test); Birmingham Ry., Light &
Power Co. v. Kyser, 203 Ala 121, 82
S 151; Carter v. Gaines, 204 Ala
640, 87 S 109; Mizell v. Sylacauga
Groc. Co., 214 Ala 204, 106 S 858;
Dillworth v. Holmes Furn. & Vehicle
Co., 15 AlaApp 340, 73 S 288.
Arizona. Leeker v. Ybanez, 24
Ariz 574, 211 P 864.
Arkansas. Western Coal & Min.
Co. v. Jones, 75 Ark 76, 87 SW 440.
Illinois. Illinois Cent. R. Co. v.
Griffin, 184 111 9, 56 NE 337; Richter
v. May wood, 191 IllApp 475 (eight
instructions on degree of care to be
exercised by plaintiff); McCormick
v. Decker, 204 IllApp 554; Vaughn
v. Director General of Railroads, 218
IllApp 595; Green v. Ross, 257 111
App 344.
Indiana. Danville Trust Co. v.
Barnett, 184 Ind 696, 111 NE 429.
Iowa. Anfenson v. Banks, 180 la
1066, 163 NW 608, LRA 1918D, 482;
Noyes v. Des Moines Club, 186 la
378, 170 NW 461, 3 ALR 605; Ha-
man v. Preston, 186 la 1292, 173 NW
894.
Kansas. Honick v. Metropolitan
Street Ry. Co., 66 Kan 124, 71 P
26-5.
309
FORM AND ARRANGEMENT
§106
to the evidence on one side, while ignoring- the other,86 and
although particular elements or phases of the evidence are
proper subjects for comment on the part of counsel in the
argument of the case before the jury, the court will be right
Kentucky. Chesapeake & 0. Ry.
Co. v. Kornhoff, 167 Ky 353, 180
SW 523; Moran v. Higgins, 19 KyL
456, 40 SW 928.
Maryland. Safe-Deposit & Trust
Co. v. Berry, 93 Md 560, 49 A 401;
Middendorf , Williams & Co. v. Alex-
ander Milburn Co., 137 Md 583, 113
A 348.
Massachusetts. Howe v. Howe,
99 Mass 88; Whitney v. Lynch, 222
Mass 112, 109 NE 826; Jacobsen v.
Simons, 222 Mass 449, 111 NE 46;
Doherty v. Phoenix Ins. Co., 224
Mass 310, 112 NE 940; Goldsmith
v. Gryzmish, 238 Mass 341, 130 NE
671.
It is error to single out part of
the relevant but controverted facts
and give a ruling as to their effect.
Lounsbury v. McCormick, 237 Mass
328, 129 NE 598.
Michigan. Webster v. Sibley, 72
Mich 630, 40 NW 772; Wood v.
Standard Drug Co., 190 Mich 654,
157 NW 403.
Missouri. Rose v. Spies, 44 Mo
20; Rice v. Jefferson City Bridge
& Transit Co. (Mo), 216 SW 746;
Metropolitan Street Ry. Co. v.
Broderick Rope Co. (MoApp), 182
SW 765; Pasche v. South St. Joseph
Town-Site Co. (MoApp), 190 SW 30.
Nebraska. Kleutsch v. Security
Mut. Life Ins. Co., 72 Neb 75, 100
NW 139.
North Carolina. Wallace v. Nor-
folk Southern R. Co., 174 NC 171,
93 SE 731.
North Dakota. Brookings v.
Northern Pacific Ry. Co., 47 ND 111,
180 NW 972.
Ohio. Krekeler v. Cincinnati Trac.
Co., 16 OhApp 125; Simpson v.
Newinger, 28 OhApp 133, 162 NE
439; Lake Shore & M. S. Ry. Co.
v. Ford, 18 OhCirCt 239, 9 OhCirDec
786; East Cleveland Ry. Co. v. Ev-
erett, 19 OhCirCt 205, 10 OhCirDec
493; Cleveland, C., C. & St. L. Ry.
Co. v. Richerson, 19 OhCirCt 385,
10 OhCirDec 326; Lake Shore & M.
S. Ry. Co. v. Whidden, 2 OhCirCt
(N. S.) 544, 13 OhCirDec 85.
Oregon. Service v. Sumpter Val-
ley Ry. Co., 88 Or 554, 171 P 202.
South Carolina. Pearlstine v.
Westehester Fire Ins. Co., 70 SC
75, 49 SE 4.
Texas. Lauchheimer v. Saunders,
27 TexCivApp 484, 65 SW 500;
Southern Trac. Co. v. Gee (TexCiv
App), 198 SW 992.
An instruction repeatedly empha-
sizing the principle of procedure that
the burden of proof is upon the
plaintiff has been held erroneous.
Owens v. Navarro County Levee
Imp. Dist. No. 8 (TexCivApp), 281
SW 577.
Vermont. Douglass & Varnum v.
Morrisville, 89 Vt 393, 95 A 810;
Maidment v. Frazier, 90 Vt 520, 98
A 987; G. R. Bianchi Granite Co. v.
Terre Haute Monument Co., 91 Vt
177, 99 A 875.
West Virginia. McMechen v. Me-
Mechen, 17 WVa 683, 41 AmRep
682.
S6 Federal. Pullman Co. v. Hall,
46 F2d 399.
Arizona. Griswold v. Home, 19
Ariz 56, 165 P 318, LRA 1918A, 862.
Illinois. Jeger v. Julius Kessler
& Co., 218 IllApp 39.
Kentucky. Stearns Coal & Lbr,
Co. v. Williams, 171 Ky 46, 186
SW 931.
An instruction was not erroneous
because it defined the duties of the
motorman at some length, while
stating the duty of decedent as that
of exercising ordinary care. South
Covington & C. Street Ry. Co. v.
Miller's Admx., 176 Ky 701, 197 SW
403.
Missouri. Ferguson v. Missouri
Pacific Ry. Co. (MoApp), 186 SW
1134.
West Virginia. Daniels v. Charles
§106
INSTRUCTIONS — RULES GOVERNING
310
in declining to notice such points specially or so as to put
undue emphasis upon them.87
The question of negligence or contributory negligence is gen-
erally to be determined by all the surrounding circumstances,
and hence it is improper to make a portion of the evidence the
basis of instructions on either question.88 Instructions are not
open to the objection of undue emphasis which do no more than
recite such facts as are necessary to be proved under the aver-
ments of the pleadings.89
Undue prominence is given to particular testimony by in-
structions that the jury "can look to" the evidence or "may look
to" that fact.90 Emphasizing the subject of last clear chance by
several references thereto has been held unobjectionable.91
Under the facts of a particular case it has been held error to
give two instructions on the burden of proof, on the ground that
the matter was thereby unduly emphasized.92
As a general rule, however, though an instruction may give
special prominence to particular evidentiary facts, it will not
afford ground for reversal, if such evidentiary facts are of con-
trolling importance.93 It is error in a railroad accident case to
Boldt Co., 78 WVa 124, 88 SE 613;
Palmer v. Magers, 85 WVa 415,
102 SE 100.
Wisconsin. Coman v. Wunder-
iich, 122 Wis 138, 99 NW 612.
87 Alabama. Central of Georgia
Ry. Co. v, Wilson, 215 Ala 612, 111
S 901.
California. McNally v. Casner,
128 CalApp 680, 18 P2d 94.
Massachusetts. Glass v. Metro-
politan Life Ins. Co., 258 Mass 127,
154 NE 563.
Minnesota. Atwood Lbr. Co. v.
Watkins, 94 Minn 464, 103 NW 332.
New Hampshire. Noel v. La-
pointe, 86 NH 162, 164 A 769.
8» Alabama. Louisville & N. E.
Co. v. Watson, 208 Ala 319, 94 S
551.
Illinois. Healy v. Chicago City
Ry. Co., 196 IllApp 1; Osborn v.
Mt. Vernon, 197 IllApp 267.
Iowa. Farwark v. Chicago, M. &
St. P. Ry. Co., 202 la 1229, 211 NW
875.
Kentucky. Stearns Coal & Lbr.
Co. v. Williams, 171 Ky 46, 186 SW
931.
Maryland. Caroline County Comrs.
y. Beulah, 153 Md 221, 138 A 25.
Missouri. Costello v. Kansas City,
280 Mo 576, 219 SW 386; Burtch v.
Wabash Ry. Co. (Mo), 236 SW 338.
North Carolina. Lee v. Southern
Ry. Co., 180 NC 413, 105 SE 15.
Oklahoma. Wetumka v. Burke, 88
Okl 186, 211 P 522.
Pennsylvania. It is error to un-
duly stress the fact in the charge
that the X-ray is a dangerous in-
strumentality. Stemons v. Turner,
274 Pa 228, 117 A 922, 26 ALR 727.
Texas. Dowdy v. Southern Trac.
Co. (TexComApp), 219 SW 1092.
Utah. Kent v. Ogden, L. & I. Ry.
Co., 50 Utah 328, 167 P 666.
89 Maryland Casualty Co. v. Dun-
lap, 68 F2d 289; Raxworthy v.
Heisen, 191 IllApp 457, affd. in 274
111 398, 113 NE 699.
90Dillworth v. Holmes Purn. &
Vehicle Co., 15 AlaApp 340, 73 S
288
Qi Richard v. New York, N. H. &
H. R. Co., 104 Conn 229, 132 A 451.
92 Miller v. Williams (Mo), 76
SW2d 355.
93 Harding v. St. Louis Nat. Stock
Yards, 149 IllApp 370, affd. in 242
111 444, 90 NE 205; Public Utilities
311
FORM AND ARRANGEMENT
§106
charge that the plaintiff exercising due care may recover for
injury resulting from failure to sound whistle or bell.S4
(2) Placing undue stress upon the testimony of a particular
witness should be avoided.95 Thus an instruction will be faulty
where it directs the jury to find for the defendant in case they
do not believe the evidence of a certain witness, naming him,
or to find for the defendant if they do believe the evidence of
another specified witness.96
So where an instruction unduly singles out the testimony of
certain witnesses and makes the whole question of the signing
of a note turn upon their evidence, it is erroneous.97 An instruc-
tion unduly singles out the testimony of the plaintiff where it
informs the jury that all admissions by the plaintiff against his
interest are presumed to be true.9*
But a general instruction as to the right of the jury to dis-
regard the testimony of any witness who has wilfully sworn
falsely as to any material matter, unless corroborated, has been
held not to give undue prominence to the testimony of any
particular witness but to leave it to the jury to say to what
witnesses, if any, it applies.99 Nor, is there undue prominence
in an instruction which tells the jury that the testimony of a
disinterested witness "is of the utmost importance in the case." *
Co. v. Handorf, 185 Ind 254, 112 NE
775.
To instruct singly with respect to
a particular substantive defense is
not the singling out or selection of a
particular fact. Sheridan v. Chi-
cago & 0. P. Elevated R. Co., 153
IllApp 70.
94 Baltimore, C. & A. Ry. Co. v.
Turner, 152 Md 216, 136 A 609.
95 Alabama. Louisville & N. R.
Co. v. Perkins, 144 Ala 325, 39 S
305.
Georgia. But see Atlanta Oil &
Fertilizer Co. v. Phosphate Min.
Co., 25 GaApp 430, 103 SE 873.
Illinois. Hoffman v. Stephens,
269 111 376, 109 NE 994; Donahue
v. Egan, 85 IllApp 20; Neville v.
Chicago, 191 IllApp 372 (physi-
cians); Wolf v. Mattox, 193 IllApp
482.
Mississippi. Mississippi Cent. R.
Co. v. Hardy, 88 Misc 732, 41 S
505.
Missouri. Fitzsimmons v. Com-
merce Trust Co. (MoApp), 200 SW
437; Markland v. Clover Leaf Cas-
ualty Co. (MoApp), 209 SW 602.
New York. Schwartz v. Lawrence,
214 AppDiv 559, 212 NYS 494.
North Carolina. Cogdell v. South-
ern Ry. Co., 129 NC 398, 40 SE 202;
Bowman v. Fidelity Trust & Dev. Co.,
170 NC 301, 87 SE 46; Starling v.
Selma Cotton Mills, 171 NC 222, 88
SE 242.
Texas. Hines v. Popino (TexCiv
App), 235 SW 1095.
96 Louisville & N. R. Co. v. Mor-
gan, 114 Ala 449, 22 S 20; Gay &
Bruce v. W. B. Smith & Sons, 217
Ala 33, 114 S 468.
It is error for the court to single
out expert witnesses and tell the
jury that the opinions of such wit-
nesses are merely advisory and not
binding on the jury. Phares v. Cen-
tury Elec. Co., 336 Mo 961, 82 SW2d
91.
97 Donahue v. Egan, 85 IllApp 20.
98 Ham v. Hammond Packing Co.,
221 MoApp 403, 277 SW 938.
99 Healea v. Keenan, 244 111 484,
91 NE 646.
1 Warruna v. Dick, 261 Pa 602,
104 A 749.
107
INSTRUCTIONS— RULES GOVERNING
312
§ 107. Undue prominence in criminal cases*
The principle which condemns instructions giving undue
prominence to particular evidence or phases of a case applies
with equal force in criminal cases.
The cases supporting1 this rule are numerous.2 But in some
states, this fault will not ordinarily work a reversal unless it is
clear that prejudice has resulted to the accused.3
2 Federal. Stout v. United States,
142 CCA 323, 227 F 799; Urban v.
United States, 46 F2d 291.
Alabama. Teague v. State, 144
Ala 42, 40 S 312; Whatley v. State,
144 Ala 68, 39 S 1014; Tribble v.
State, 145 Ala 23, 40 S 938; Griffin
v. State, 165 Ala 29, 50 S 962; Pope
v. State, 174 Ala 63, 57 S 245; Mont-
gomery v. State, 2 AlaApp 25, 56
S 92; Herndon v. State, 2 AlaApp
118, 56 S 85; Hosey v. State, 5 Ala
App 1, 59 S 549; Kirby v. State, 5
AlaApp 128, 59 S 374; Herring v.
State, 14 AlaApp 93, 71 S 974; Cop-
Ion v. State, 15 AlaApp 331, 73 S
225; Miller v. State, 16 AlaApp 143,
75 S 819; Bowling v. State, 18 Ala
App 231, 90 S 33.
Arizona. Stephens v. State, 20
Ariz 37, 176 P 579.
Arkansas. McKinney v. State, 140
Ark 529, 215 SW 723.
California. People v. Converse,
28 CalApp 687, 153 P 734; People v.
Vuyacich, 57 CalApp 233, 206 P
1031.
Florida. Baldwin v. State, 46 Fla
115, 35 S 220; Graham v. State, 72
Fla 510, 73 S 594; Hall v. State,
78 Fla 420, 83 S 513, 8 ALR 1034.
Georgia. Harrell v. State, 121 Ga
607, 49 SE 703.
Idaho. State v. Jones, 28 Idaho
428, 154 P 378; State v. Pettit, 33
Idaho 326, 193 P 1015.
Illinois. People v. Strauch, 247
111 220', 93 NE 126, 139 AmSt 319;
People v. Stankevic, 299 111 241,
132 NE 539;. Graff v. People, 108
111 App 168; People v. Dressen, 158
IllApp 139.
Iowa. State v. Asbury, 172 la 606,
154 NW 915, AnnCas 1918A, 856.
Massachusetts. Commonwealth v.
Borasky, 214 Mass 313, 101 NE 377;
Commonwealth v. Sherman, 234
Mass 7, 124 NE 423.
Missouri. State v. Shelton, 223
Mb 118, 122 SW 732; State v.
Mitchell, 229 Mo 683, 129 SW 917,
138 AmSt 425; State v. Gentry, 320
Mo 389, 8 SW2d 20.
Montana. State v. Jones, 32 Mont
442, 80 P 1095; State v. Pippi, 59
Mont 116, 195 P 556.
Nebraska. Chapman v. State, 61
Neb 888, 86 NW 907.
Ohio, Daugherty v. State, 41 Oh
App 239, 180 NE 656.
Oklahoma. Black v. State, 5 Okl
Cr 512, 115 P 604.
Oregon. State v. Newlin, 92 Or
589, 182 P 133.
South Carolina. State v. Driggers,
84 SC 526, 66 SE 1042, 137 AmSt
855, 19 AnnCas 1166.
Tennessee. Cooper v. State, 123
Tenn 37, 138 SW 826.
Texas. Beard v. State, 57 TexCr
323, 123 SW 147; Wadkins v. State,
58 TexCr 110, 124 SW 959, 137
AmSt ,922, 21 AnnCas 556; Canon v.
State, 59 TexCr 398, 128 SW 141;
Harrelson v. State, 60 TexCr 534,
132 SW 783; Barber v. State, 64
TexCr 96, 142 SW 577; Tucker v.
State, 67 TexCr 510, 150 SW 190;
Hunt v. State, 85 TexCr 622, 214
SW 983 (rape) ; Smith v. State (Tex
Cr), 49 SW 583.
Virginia. Montgomery v. Com-
monwealth, 98 Va 852, 37 SE 1.
West Virginia. State v. Morgan,
35 WVa 260, 13 SE 385; State v.
Morrison, 49 WVa 210, 38 SE 481;
State v. Dodds, 54 WVa 289, 46 SE
228; State v. Ison, 104 WVa 217,
139 SE 704.
3Jacobi v. State, 133 Ala 1, 32
S 158; Whatley v. State, 144 Ala
313
FOEM AND ARRANGEMENT
§107
Under this rule it is improper for the court to select the
evidence of any witness,4 though it be that given by the ac-
cused,5 and charge specially on such evidence and especially if
68, 39 S 1014; State v. Strome, 26
ONP (N. S.) 406.
4 Federal. Minner v. United
States, 57 F2d 506.
Alabama. Jones v. State, 174 Ala
85, 57 S 36; Cardwell v. State, 1
AlaApp 1, 56 S 12; Coates v. State,
1 AlaApp 35, 56 S 6; Parker v.
State, 7 AlaApp 9, 60 S 995.
Arkansas. Shank v. State, 189
Ark 243, 72 SW2d 519.
California. People v. Haugh, 90
CalApp 354, 265 P 891; People v.
Littlefield, 1 CalApp2d 725, 37 P2d
200.
The judge should not instruct the
jury that the fact that the de-
fendant attempted to commit sui-
cide may be taken as evidence of
insanity, since such instruction
makes this fact of itself evidence
of insanity whereas it is only one
phase of the evidence to be con-
sidered with all the other evidence.
People v. Owens, 123 Cal 482, 56 P
251.
Illinois. People v. Andreanos, 323
111 34, 153 NE 707; People v. Bell,
328 111 446, 159 NE 807; People v.
Whalen, 151 IllApp 16; People v.
Spencer, 171 IllApp 237.
Indiana. Where there had been
as many as 30 witnesses in the case,
an instruction was improper which
singled out two of them and ad-
vised the jury that they could dis-
regard the testimony of the two
witnesses if the jury believed they
had testified falsely. Moore v.
State, 198 Ind 547, 15S NE 402,
154 NE 388.
Kentucky. Milburn v. Common-
wealth, 223 Ky 188, 3 SW2d 204.
Minnesota. Requested instruction
was erroneous where it singled out
only two of the numerous witnesses,
whose testimony should be consid-
ered under the caution of "Falsus
in uno, falsus in omnibus." State v.
Dunn, 140 Minn 308, 168 NW 2.
Missouri. State v. Chinn, 153 Mo
App 611, 133 SW 1196.
Montana. State v. McClellan, 23
Mont 532, 59 P 924, 75 AmSt 558.
North Carolina. Such instruction
was erroneous where the court on
its own. motion called an alienist and
examined him, and charged that his
testimony was admirably lucid. State
v. Home, 171 NC 787, 88 SE 433.
Oklahoma. Mitchell v. State, 2
OklCr 442, 101 P 1100; Price v.
United States, 2 OklCr 449, 101 P
1036, 139 AmSt 930; Clark v. State,
4 OklCr 368, 111 P 659; Heacock v.
State, 4 OklCr 606, 112 P 949; Peck
v. State, 5 OklCr 104, 113 P 200;
Williams v. State, 53 OklCr 285, 10
P2d 731.
Texas. Allen v. State, 64 TexCr
225, 141 SW 983.
Particular testimony was singled
out by an instruction that the fact
that the deceased had money before
but not after his death was not evi-
dence of the guilt of defendant but
merely showed motive. Mims v.
State, 68 TexCr 432, 153 SW 321.
Virginia. In Hensley v. Common-
wealth, 163 Va 1048, 177 SE 104,
the defendant was prosecuted for
assault and his son testified that he,
the son, committed the assault. The
court was held to have committed
reversible error in pointing out this
fact to the jury and telling them
that nevertheless they were the sole
judges of the credibility of the son's
testimony.
5 Federal, The comment of the
court on the credibility of witnesses,
even in the federal courts, should
not be one-sided; and if in the charge
to the jury the court dwells at
length on the credibility of the de-
fendant, it is error for him to re-
frain from commenting on the credi-
bility of the witnesses for the
prosecution. Hunter v. United
States, 62 F2d 217.
§107
INSTRUCTIONS — RULES GOVERNING
314
the comment is disparaging.6 The tendency of such instruction
is to lead the jury to dissociate such evidence from the rest
of the evidence while it is their duty to consider all the evidence.7
The correct practice is to give a general instruction applying
to all witnesses alike,8 and not to give undue consideration to
California. People v. Adams, 199
Cal 361, 249 P 186.
Missouri. State v. Summers (Mo
App), 281 SW 123.
West Virginia. State v. Green,
101 WVa 703, 133 SE 379.
e Koss v. State, 217 Wis 325, 258
NW 860.
7 Alabama. Johnson v. State, 1
AlaApp 102, 55 S 321.
An instruction is objectionable as
singling- where it tells the jury that
it is their duty to contrast the man-
ner and demeanor of defendant
while testifying with that of the
witnesses for the state. Pope v.
State, 168 Ala 33, 53 S 292.
Arkansas. An instruction was
condemned as singling out facts
where instruction declared that the
fact that defendant was an infant
could be considered in determining
whether he acted deliberately or
with criminal negligence. Gilchrist
v. State, 100 Ark 330, 140 SW 260.
California. People v. Hinshaw,
194 Cal 1, 227 P 156; People v.
Blunkall, 31 CalApp 778, 161 P 997.
Colorado. But see Bruno v. Peo-
ple, 67 Colo 146, 186 P 718.
Illinois. People v. Sawhill, 299
111 393, 132 NE 477; People v.
Sanders, 357 111 610, 192 NE 697.
Iowa. In Iowa court may instruct
that defendant had the right to
testify, and was competent, and
that his testimony should be con-
sidered, taking account of his in-
terest, the reasonableness of the
testimony, his candor, and all other
tests applied to other witnesses.
State v. Brooks, 181 la 874, 165 NW
194.
Mississippi. Murphy v. State, 119
Miss 220, 80 S 636 (consideration of
interest to determine credibility);
Hood v. State, 170 Miss 530, 155 S
679.
Missouri. State v. Pace, 269 Mo
681, 192 SW 428; State v. Goode,
271 Mo 43, 195 SW 1006; State v.
Rose (Mo), 193 SW 811; State v.
Fish (Mo), 195 SW 997; State v.
Clark (MoApp), 202 SW 259.
Oklahoma. Culpepper v. State, 4
OklCr 103, 111 P 679, 31 LRA (N.
S.) 1166, 140 AmSt 668; Madison
v. State, 6 OklCr 356, 118 P 617, Ann
Gas 1913C, 484.
An instruction gives undue promi-
nence where it charges that accused
is a competent witness for himself
but the jury may consider his in-
terest in the event in determining
his credibility. Guiaccimo v. State,
5 OklCr 371, 115 P 129.
Texas. In a prosecution for mur-
der an instruction which told the
jury that the defendant was a com-
petent witness and that the jury
were the sole judges of his testi-
mony and should weigh it as they
would that of any other witness,
was properly refused because sing-
ling out testimony of the defendant.
Tardy v. State, 46 TexCr 214, 78
SW 1076.
Washington. An instruction that
while the defendant is a competent
witness the jury may consider his
situation and interest in the result
and all the circumstances surround-
ing him and give to his testimony
only such weight as in their judg-
ment it is fairly entitled to is not
open to the objection that it singled
out defendant from the body of wit-
nesses for comment. State v. Mel-
vern, 32 Wash 7, 72 P 489.
8 California. People v. Fritz, 54
CalApp 137, 201 P' 348; People v.
Chew Juey, 57 CalApp 606, 207 P
911; People v. Lavender, 137 CalApp
582, 31 P2d 439.
Florida. Roberts v. State, 72 Fla
132, 72 S 649.
Idaho. State v. Rogers, 30 Idaho
259, 163 P 912.
315 POEM AND ARRANGEMENT § 107
the testimony of particular classes of witnesses such as detec-
tives,9 prosecuting witnesses,10 impeaching witnesses/1 and
accomplices. J 2
It is error to tell the jury to consider the interest and the
demeanor of the defendant as a witness, where the instruction
did not apply to other witnesses also. f 3 Like error may be predi-
cated on the court's action in singling out the defendants and
telling the jury they might disregard the whole of what the
defendants had testified to if the jury believed they had lied.14
Thus, in a prosecution for violation of the narcotic laws, it was
flagrantly error for the court to say to the jury in the instruc-
tions that there was no motive prompting the federal agents to
testify falsely, but that there was such a motive to prompt the
accused. f 5 On the other hand, the rule is violated by instructions
emphasizing previous good character of accused as evidence to
create reasonable doubt of guilt. 1 6 It is erroneously singling out
and commenting upon the testimony of a witness for the court
to tell the jury that the prosecutrix in a rape case need not be
corroborated.17
Where the testimony of the witnesses for the state is es-
pecially referred to and narrated in the charge to the jury, it
is the duty of the court to also give like prominence to the testi-
mony and explanations relating to the same subject on the part
of the accused. 1 8
An instruction which gives undue prominence to unfavorable
evidence to the defendant in a criminal case is erroneous.19
Louisiana. State v. Rock, 162 La Kansas. State v. Ewing, 103 Kan
299, 110 S 482. 389, 173 P 927 (statutory rape).
Nevada, State v. Rothrock, 45 Missouri. State v. Bowman, 278
Nev 214, 200 P 525. Mo 492, 213 SW 64; State v. Edelen,
North Dakota. State v. Young, 288 Mo 160, 231 SW 585 (rape).
55 ND 194, 212 NW 857. * f Babb v. State, 18 Ariz 505,
Olahoma. Darneal v. State, 14 163 P 259, AnnCas 1918B, 925.
OMCr 540, 174 P 290, 1 ALR 638; I2 State v. Dallas, 145 Minn 92,
Carter v. State, 35 OklCr 421, 250 176 NW 491.
P 807. J 3 People v. Washington, 327 111
Oregon. State v. Wisdom, 122 Or 152, 158 NE 386.
148, 257 P 826. t4 People v. Schuele, 326 111 366,
Pennsylvania. Commonwealth v. 157 NE 215.
Weber, 271 Pa 330, 114 A 257. ( s Strader v. United States, 72
Wisconsin. Strabel v. State, 192 F2d 589.
Wis 452, 211 NW 773. ' 6 Fowler v. State, 130 Ark 365,
9 People v. Longland, 52 CalApp 197 SW 568; State v. Hare, 87 OhSt
499, 199 P 546; People v. Fritz, 54 204, 100 NE 825.
CalApp 137, 201 P 348; State v. l7 Davidson v. State, 57 OklCr
Meyers, 132 Minn 4, 155 NW 766. 188, 46 P2d 572.
1 ° Arkansas. Clark v. State, 135 ' 8 People v. Murray, 72 Mich 10,
Ark 569, 205 SW 975. 40 NW 29.
California. People v. Carey, 53 * 9 State v. Bayless, 362 Mo 109,
CalApp 742, 200 P 835. 240 SW2d 114,
§ 108 INSTRUCTIONS — RULES GOVERNING 316
But the fact that the trial judge takes more time in charging
the jury in regard to the evidence of the state than he does in
charging as to the evidence of the defendant does not place
undue emphasis on the case of the state, where the evidence
of the state is much more voluminous than that of the de-
fendant.20
Undue emphasis on particular evidence was held to have
been given by an instruction that the theory of the law in ad-
mitting dying declarations is that a person would be just as
sure to make a truthful statement when he is in the article
of death as he would if under the sanctity of an oath.21
Undue emphasis may be accomplished by the unnecessary
repetition of instructions on vital questions.22
It has been held that undue prominence to the importance
of conviction was to be inferred from an instruction which told
the jury that, if accused was guilty he should not be errone-
ously convicted, but that if guilty he should not be erroneously
acquitted, and that by acquittal of the guilty a contempt of
law is aroused among the criminal classes and the safeguards
of society are weakened.23
Commenting upon and placing undue weight upon the credi-
bility of circumstantial evidence as compared with direct evi-
dence is error.24
Undue weight is given to instructions by underscoring words
and phrases therein, and this practice should not be indulged,25
§ 108. Argumentative instructions in civil cases.
Instructions which take the form of an argument to the jury
should not be given by the court.
The purpose of instructions is to state the issues and the
applicable law. It follows, then, that instructions which argue
the question in controversy should not be given by the court.26
20 Smith v. State, 24 GaApp 654, Quinn v. State, 22 GaApp 632, 97
101 SE 764; Johnson v. State, 27 SE 84.
GaApp 668, 109 SE 508; Common- 23 Hess v. State, 192 Ind 50, 133
wealth v. Clemmer, 190 Pa 202, 42 NE 880, 135 NE 145.
A 675. 24 Lambert v. State, 105 OhSt
2 « Baker v. State, 12 GaApp 553, 219, 136 NE 921.
77 SE 884. See also Jones v. Com- 25 State v. Cater, 100 la 501, 69
monwealth, 186 Ky 283, 216 SW 607. NW 880.
22 Mulligan v. State, 18 GaApp 26 Federal. Northern Cent. Coal
464, 89 SE 541; State v. Totten, 185 Co. v. Barrowman, 246 F 906.
Ind 580, 114 NE 82. The court should refuse instruc-
It was not prejudicial undue tions prepared by counsel stating
prominence that charge in two sepa- general propositions which merely
rate and distinct places stated Ian- support an argument in favor of
guage or substance of indictment, the party presenting it. San Pedro,
317
FORM AND ARRANGEMENT
1108
It Is not error to refuse such an instruction, although the argu-
ment itself may be entirely legitimate.27 One objection to in-
structions of this kind is that they tend to lead the court to
invade the jury's function to determine the weight, probative
L. A. & S. L. R. Co. v. Thomas,
109 CCA 638, 187 P 790.
Alabama. King v. Franklin, 132
Ala 559, 31 S 467; Penry v. Dozier,
161 Ala 292, 49 S 909; Louisville
& N. R. Co. v. Perkins, 165 Ala
471, 51 S 870, 21 AnnCas 1073;
Southern Ry. Co. v. Smith, 177 Ala
367, 58 S 429; Keller v. Jones &
Weeden, 196 Ala 417, 72 S 89; Fail
v. Gulf States Steel Co., 205 Ala
148, 87 S 612; Sloss-Sheffield Steel
& Iron Co. v. Jones, 207 Ala 7, 91
S 808; Alabama Great Southern R.
Co. v. Molette, 207 Ala 624, 93 S
644; Nashville Broom & Supply Co.
v. Alabama Broom & Mattress Co.,
211 Ala 192, 100 S 132; Hale v.
Cox, 222 Ala 136, 131 S 233.
Arkansas. Terry Dairy Co. v.
Parker, 144 Ark 401, 223 SW 6;
Kelly Handle Co. v. Shanks, 146 Ark
208, 225 SW 302; Volentine v. Wyatt,
164 Ark 172, 261 SW 308.
California. In re Dolbeer's Estate,
149 Cal 227, 86 P 695, 9 AnnCas
795; Sellars v. Southern Pacific Co.,
33 CalApp 701, 166 P 599.
Colorado. McCormick v. Parriott,
33 Colo 382, 80 P 1044; Parris v.
Jaquith, 70 Colo 63, 197 P 750.
Florida. Escambia County Elec.
Light & Power Co. T. Sutherland,
61 Fla 167, 55 S 83.
Georgia. Macon Ry. & Light Co.
v. Vining, 123 Ga 770, 51 SE 719;
Landrum v. Rivers, 148 Ga 774, 98
SE 477; Western & A. R. Co. v.
Jarrett, 22 GaApp 313, 96 SE 17.
Illinois. Griffin Wheel Co. v.
Markus, 79 IllApp 82; Vacker v.
Yeager, 151 IllApp 144; Dickey v.
Ghere, 163 IllApp 641; Brewster v.
Rockford Public Service Co., 257
IllApp 182.
Where long and unnecessary in-
struction is given containing mere
repetitions amounting to an argu-
ment, a reversal should be granted
if the verdict is clearly the result
of such instruction. Grudzinski v.
Chicago City R. Co., 165 IllApp 152.
Iowa. Strasberger v. Farmers'
Elevator Co., 184 la 66, 167 NW
184; Noyes v. Des Moines Club, 186
la 378, 170 NW 461, 3 ALR 605;
Haman v. Preston, 186 la 1292, 173
NW 894.
Massachusetts. Wyman v. Which-
er, 179 Mass 276, 60 NE 612.
Michigan. O'Dea v. Michigan
Cent. R. Co., 142 Mich 265, 105 NW
746; Wood v. Standard Drug Store,
190 Mich 654, 157 NW 403.
Minnesota. Reem v. St. Paul City
Ry. Co., 82 Minn 98, 84 NW 652.
Missouri. Melican v. Missouri-
Edison Elec. Co., 90 MoApp 595;
Asbury v. Kansas City, 161 MoApp
496, 144 SW 127; Pasche v. South
St. Joseph Town-Site Co. (MoApp),
190 SW 30; Eads v. Gait Tel. Co.
(MoApp), 199 SW 710.
New Jersey. Cottrell v. Fountain,
80 NJL 1, 77 A 465.
North Carolina. Daniel v. Dixon,
161 NC 377, 77 SE 305.
Ohio. Washington Mut. Ins. Co.
v. Merchants & Mfrs. Mut. Ins. Co.,
5 OhSt 450; Jackson Knife & Shear
Co. v. Hathaway, 17 OhCirDec 745,
7 OhCirCt (N. S.) 242.
Texas. Missouri, K. & T. Ry. Co.
v. Carter, 95 Tex 461, 68 SW 159;
Gilmore v. Brown (TexCivApp), 150
SW 964; El Paso Elec. Ry. Co. v.
Benjamin (TexCivApp), 202 SW 996;
Smith v. Bryan (TexCivApp), 204
SW 359; Shelton v. Shelton (Tex
CivApp), 281 SW 331 (undue in-
fiuence) .
Utah. Smith v. Gilbert, 49 Utah
510, 164 P 1026; Moore v. Utah
Idaho Cent. R. Co., 52 Utah 373, 174
P 873.
Washington. Cowie v. Seattle, 22
Wash 659, 62 P 121.
27 in re Clark's Estate, .180 Cal
395, 181 P 639; Southern Trac. Co.
v. Kirksey <TexCivApp), 222 SW
§ 108 INSTRUCTIONS — RULES GOVERNING 318
effect, and sufficiency of the evidence, and what inferences of
fact should be drawn from the evidence introduced.28 The rule
is violated by instructions which seek to emphasize matters
properly subject for argument to the jury.29
But, while the giving of argumentative instructions is a
practice to be condemned, the fact that an instruction is argu-
mentative in form will not necessarily cause a reversal, if the
charge, as a whole, correctly instructs the jury as to the ma-
terial issues.30
An instruction is argumentative in directing the jury to
find for plaintiff if the evidence preponderates in his favor, al-
though the preponderance be slight.31 Instructions have been
held argumentative which told the jury that the law abhors
fraud;32 that it is a sound rule of law that if a witness is found
to wilfully swear falsely in one material thing, the jury may
disregard the whole of his testimony;33 that no one is required
to anticipate that another will fail to obey the law;34 that the
failure to safeguard machinery may be actionable negligence;35
that an accusation of slander is easy to be brought and hard
to defend, though the defendant is innocent;36 that certain
acts would not justify a wife in assaulting a husband or put
him in fault;37 that intoxication, though a matter for considera-
tion, does not constitute contributory negligence;38 that the
law does not impose on a railroad company the duty of so
providing for the safety of persons going from the train to a
boat that they will encounter no possible danger in the use of
the appliances provided;30 and that liability for pollution of
702; Nason v. LqrcUMerrow Excel- Washington. Forman v. Shields,
sior Co., 92 NH 251, 29 A2d 464. 183 Wash 333, 48 P2d 599.
28 Wolff v. Carstens, 148 Wis 178, 3O McCormick v. Parriott, 33 Colo
134 NW 400. 382, 80 P 1044.
29 Georgia. In a personal injury 3 ' Wolczek v. Public Service Co.,
action against a city a charge was 342 111 482, 174 NE 577.
clearly argumentative which told 32 McClendon v. McKissack, 143
the jury that calamities and cas- Ala 188, 38 S 1020.
ualties were common to all, but it 33 McClendon v. McKissack, 143
did not follow that their victims Ala 188, 38 S 1020.
were entitled to compensation from 34 Missouri, K. & T. Ry. Co. v.
a city unless the city failed to ex- Merchant (TexComApp), 231 SW
ercise ordinary care. Holloway v. 327.
Milledgeville, 35 GaApp 87, 132 SE 3S Lewis v. Wallace, 203 Ala 113,
106. 82 S 127.
Kentucky. Snyder v. Hudson, 223 36 McLaughlin v. Beyer, 181 Ala
Ky 525, 4 SW2d 410. 427, 61 S 62.
Missouri. Gleason v. Texas Co. 37 Johnson v. Johnson, 201 Ala
(Mo), 46 SW2d 546; Dawes v. Star- 41, 77 S 335, 6 ALR 1031.
rett, 336 Mo 897, 82 SW2d 43. 3S Chapman v. Chicago City R.
Montana. Albertini v. Linden, 45 Co., 205 IHApp 497.
Mont 398, 123 P 400. 39Yazoo & M. V. R. Co. v. Hill,
319 FORM AND ARRANGEMENT § 108
water course depends on the density of population along banks
of stream and is less where stream runs through thinly popu-
lated district.40 So an instruction is argumentative which at-
tempts to point out what acts or omissions on the part of the
plaintiff, in an action for personal injuries, constitute negli-
gence.4 l
An instruction in an action for the death of a boy from
contact with a highly charged wire was held argumentative
which told the jury that "boys can seldom be said to be negligent
when they merely follow the irresistible impulses of their own
nature, and instincts common to all boys."42 In an action to
recover on a life policy, where the claim was that the insured
lost his life in a fire, and the insurer defended on the theory
that the insured was not dead, an instruction was declared argu-
mentative which told the jury to find for the defendant if they
found that the fire was not intense enough to consume the
human body.43
In a will contest involving the question of undue influence
an instruction was argumentative which told the jury that affec-
tion and desire to gratify another's wishes are not such coercion
as defeats testamentary disposition, all the better instincts being
left in full play, and are harmless, unless testator's power of
independent action is overcome.44 And where it is sought to
probate a will that is alleged to have been lost or destroyed, it
is argumentative for the court to hold forth at length on facts
relative to the revocation of the will.43 An instruction in a
will contest was held argumentative which told the jury that
141 Ark 378, 216 SW 1054; Rice throw her if she could prevent it;
v. Jefferson City Bridge & Transit and, if plaintiff failed to use due and
Co. (Mo), 216 SW 746. ordinary precaution that a prudent
40 American Tar Products Co. v. person would under the circum-
Jones, 17 AlaApp 481, 86 S 113, stances, and was injured in conse-
41 Illinois. Pittsburgh, C., C. & quence of such failure to protect
St. L. Ky. Co. v. Banfill, 206 111 553, herself from injury as a prudent
6$ NE 499. person would have done, then she
Michigan. An instruction was cannot recover in this action," O*Dea
argumentative which said **I charge v. Michigan Cent. R. Co., 142 Mich
you that it was plaintiff's duty to 265, 105 NW 746.
be observant and to heed what was Washington. Cowie v. Seattle, 22
going on around her, to notice Wash 659, 62 P 121 (sidewalk in-
whether or not train was stationary, juries).
and to observe when it started, and, 42 Pierce v. United Gas & Elec.
when alighting, it was her duty to Co., 161 Cal 176, 118 P 700.
protect herself and assist herself by 43 Henry v. Missouri Ins. Co. (Mo
the handrails on the car platform and App), 68 SW2d 852.
running down the steps of the car, 44 Councill v. Mayhew, 172 Ala
which were prepared for that pur- 295, 55 S 314.
pose, and to be vigilant and see that 45 Baucum v, Harper, 176 Ga 206,
no sudden movement would trip or 168 SE 27.
§ 109 INSTRUCTIONS — RULES GOVERNING 320
wills are often made in extremis and when the bodily powers
are broken and the mental faculties enfeebled. The instruction
was also open to the objection that it did not state a rule of law.4®
An instruction is argumentative which tells the jury that
a partnership is not to be determined by the fact that parties
or witnesses called the relation such, but by the facts testified
to as to the arrangement and contract, and that the mere
Interest in profits does not constitute a partnership.47
In an accident case, where motorist had collided with standing"
truck in the nighttime, the court's charge was held argumenta-
tive for telling the jury that they might consider matters of
common and general knowledge in addition to the evidence and
the Instructions of the court.48 It is judicial argument for the
defense in a damage action for the court to charge that if a
motorist drove Into path of street car so that even though he
exercised ordinary care the motorman could not avoid collision,
there was no negligence on the part of the motorman, and that
the motorist could not recover.49 An instruction in a railroad
crossing personal injury case, that if the plaintiff could have
seen the train at the time and place he testified to having
looked therefor, he must be held to have seen it, or to have not
looked, has been held argumentative.50
§ 109, Argumentative instructions in- criminal cases.
The rule against argumentative instructions is equally ap-
plicable to criminal prosecutions.
The court is not required to argue the case for either side,
under the guise of instructions to the jury.51 Hence, instruc-
tions which amount to no more than mere argument should
not be given to the jury,52 although they may be abstractly
46 Huffman v. Graves, 245 III 440, States, 1 F2d 617; Silkworth v.
92 NE 289. United States, 10 F2d 711; Gridley
47 Brown v. Cassidy-Southwestern v. United States,- 44 P2d 716; United
Comm. Co. (TexCivAppf, 225 SW States v. Hirsch, 74 F2d 215.
833, Alabama. Mitchell v. State, 129
48 Phoenix Re£. Co. v. Tips, 125 Ala 23, SO S 348; Pope v. State, 137
Tex 69, 81 SW2d 60, rev*. 66 SW2d Ala 56, 34 S 840; Tribble v. State,
396, 145 Ala 23, 40 S 938; Simmons v.
49 Cunningham v. Kansas City State, 145 Ala 61, 40 S 660; Turner
Public Service Co., 229 MoApp 174, v. State, 160 Ala 40, 49 S 828; Troup
77 SW2d 161. v. State, 160 Ala 125, 49 S 332;
50 Case v. Chicago Great Western Gaston v. State, 161 Ala 37, 49 S
Ry. Co., 147 la 747, 126 NW 1037. 876; Montgomery v. State, 169 Ala
51 Ryan v. State, 46 GaApp 347, 12, 53 S 991; Fowler v. State, 170
167 SE 720; Commonwealth v. Poli- Ala 65, 54 S 115; Pope v. State, 174
an, 288 Mass 194, 193 NE 68, 96 Ala 63, 57 S 245; Gaston v. State,
•A-LR 615. 179 Ala 1, 60 S 805; Burton v. State,
«« Federal. Weare v, /United -194- Ala 2, 69 S 913 \ H«sch-v, State,
321
FORM AND ARRANGEMENT
§109
correct.63 Yet an instruction may be argumentative, and still
not be prejudicial as requiring a reversal.54
It does not make the use of argumentative instructions
legitimate that their subject matter is not covered by other
instructions.53
Instructions are generally open to the charge of argumenta-
tiveness where they go into general dissertations on the relative
rights of society and the accused and the solicitude of society
that no innocent person should be condemned.56 The same is
211 Ala 274, 100 S 321; Barney v.
State, 5 AlaApp 302, 57 S 598;
Kuhn v. State, 16 AlaApp 489, 79 S
394; Barnett v. State, 16 AlaApp
539, 79 S 675; Evans v. State, 17
AlaApp 155, 82 S 645; Vaughn v.
State, 17 AlaApp 383, 84 S 879;
Marker v. State, 20 AlaApp 260,
101 S 355; Brock v. State (AlaApp),
61 S 474.
An instruction was argumentative
which told the jury that they were
not required to find who did the
shooting unless they should be con-
vinced beyond a reasonable doubt
that the defendant did it. Spraggins
v. State, 139 Ala 93, 35 S 1000.
Arkansas. White v. State, 105 Ark
698, 152 SW 163; Nordin v. State,
143 Ark 364, 220 SW 473.
California. People v. Hatch, 163
Cal 368, 125 P 907; People v. Con-
verse, 28 CalApp 687, 153 P 734;
People v. Lopez, 33 CalApp 530, 165
P 722; People v. Musumeci, 51 Cal
App 454, 197 P 129.
Colorado. McQueary v. People,
48 Colo 214, 110 P 210, 21 AnnCas
560.
Florida. Baldwin v. State, 46 Pla
115, 35 S 220; Bass v. State, 58 Fla
1, 50 S 531; Wolf v. State, 72 Pla
572, 73 S 740.
Georgia. Johnson v. State, 148
Ga 546, 97 SE 515; Ballard v. State,
II GaApp 104, 74 SE 846.
Idaho. State v. Cosier, 39 Idaho
519, 228 P 277.
Illinois. Zuckerman v. People, 213
III 114, 72 NE 741; People v.
Clement, 285 111 614, 121 NE 213;
People v. Davis, 300 111 226, 133 NE
320; People v. Polak, 360 111 440,
196 NE 513.
Louisiana. State v. Ardoin, 49
LaAnn 1145, 22 S 620, 62 AmSt 678.
Michigan. People v. Hanaw, 107
Mich 337, 65 NW 231; People v.
Dupree, 175 Mich 632, 141 NW 672.
Missouri. An instruction selecting
certain parts of the evidence and
submitting it to the attention of the
jury, and directing the attention of
the jury to a certain witness and
what he stated, is bad as being argu-
mentative. State v. Chinn, 153 Mo
App 611, 133 SW 1196.
Montana. State v. Kahn, 56 Mont
108, 182 P 107.
Nevada. State v. Buralli, 27 Nev
41, 71 P 532.
Oklahoma. Dunn v. State, 15 Okl
Gr 245, 176 P 86.
Texas. Perkins v. State, 98 TexCr
329, 265 SW 702.
Utah. State v. McCurtain, 52
Utah 63, 172 P 481.
Virginia. Gottlieb v. Common-
wealth, 126 Va 807, 101 SE 872.
Washington. State v. Storrs, 112
Wash 675, 192 P 984, 197 P 17.
New Jersey. But see State v.
Dichter, 95 NJL 203, 112 A 413.
53 Brocton v. Wiese, 204 IllApp
556; State v. Burns, 51 Utah 73, 168
P 955.
54 Commonwealth v. Talarico, 317
Pa 481, 177 A 1.
s« McFee y. United States, 53 F2d
553.
5«* Alabama. Bell v. State, 140
Ala 57, 37 S 281; Parker v. State,
165 Ala 1, 51 S 260; Smith v. State,
165 Ala 74, 51 S 632; Humphries v.
State, 2 AlaApp 1, 56 S 72; Minor
v. State, 15 AlaApp 556, 74 S 98;
Hankins v. State, 15 AlaApp 581, 74
S 400 (justice tempered with
109
INSTRUCTIONS- — RULES GOVERNING
322
true with reference to admonitions to jurors to stand by their
Individual convictions,57 or to disregard racial prejudices.58
The court should refuse argumentative instructions bearing
upon the weight and credibility of the accused as a witness,59
of expert witnesses,60 of officers as witnesses,61 of circumstantial
evidence,62 and of dying declarations.63
mercy); West \\ State, 16 AlaApp
117, 75 S 709; Adkins v. State, 16
AlaApp 181, 76 S 465.
An instruction was argumentative
which advised the jury that the law-
does not desire the punishment of
persons only reasonably guilty but
only of those who are guilty to a
moral certainty. Saulsberry v.
State, ITS Ala 16, 59 S 476.
California. People v. Ebanks, 117
Ca! ("52, 49 P 1049, 40 LEA 269.
A court properly refuses an in-
struction as to the policy of the law
in relation to the conviction of inno-
cent persons as the court is required
to state to the jury the law and not
the reason for its enactment. Peo-
ple v. Smith, 13 CalApp 627, 110 P
333.
Georgia. Mixon v. State, 123 Ga
5S1, 51 SE 580, 107 AmSt 149.
Idaho. State v. Fleming, 17 Idaho
471, 106 P 305.
Illinois. People v. Davidson, 240
111 191, 88 NE 565.
Indiana. Lindley v. State, 199
Ind 18, 154 NE 867.
Iowa. Such an instruction, how-
ever, was held unobjectionable in
State v. Kneeskern, 203 la 929, 210
NW 465.
North Dakota. State v. Rodman,
57 ND 230, 221 NW 25.
Virginia. McCue v. Commonwealth,
103 Va 870, 49 SE 623.
57 White v. State, 195 Ala 681,
71 S 452.
58 Johnson v. State, 15 AlaApp
298, 73 S 210; McDonald v. State,
23 GaApp 58, 97 SE 448 (killing
Chinaman).
59 People v. Holden, 13 GalApp
354, 109 P 495 (caution as to verbal
admission) ; P'eople v. Keating, 247
111 76, 93 NE 05.
The following requested instruc-
tion was argumentative: "You are
instructed that it is the law that
verbal statements, or as they are
sometimes called extrajudicial state-
ments— that is, statements made by
the defendant out of court — are to
be received by the jury with cau-
tion; and you have a right to con-
sider that there is danger of mis-
takes from misapprehension of the
witnesses, the misuse of the words,
the failure of the party to express
his own meaning1, the infirmity of
memory on the part of the witness
attempting to relate all of the con-
versation, and this rule applies when
only a part of the defendant's decla-
rations at the time are written down
or remembered and proven." People
v. Muhly, 11 CalApp 129, 104 P
466.
60 Miller v. State, 9 OklCr 255,
131 P 717, LRA 1915A, 1088.
61 An instruction was argumenta-
tive which told the jury in a trial
for violating a prohibitory law that
in determining the weight to be
given the testimony of certain wit-
nesses, the jury should consider that
they were deputy sheriffs and that
the sheriff gets his compensation
from fees. Sapp v. State, 2 AlaApp
190, 56 S 45.
62Lawson v. State, 16 AlaApp
174, 76 S 411; State v. Marren, 17
Idaho 7&&y 107 P 993.
An instruction was argumentative
where it advised the jury that the
fact that the jurors had said on oath
they would convict on circumstantial
evidence did not mean that the jury
must convict. Phillips v. State, 162
Ala 14, 50 S 194.
63 An instruction which told the
jury that although the dying decla-
rations of deceased are admissible in
evidence, yet they must be received
with grave caution, was properly
refused as argumentative in prose-
323 FORM AND AERANGEMENT § 110
An Instruction was argumentative where it informed the jury
that if the evidence failed to show any motive of accused, this
should be considered in his favor with all other facts and cir-
cumstances.64 An instruction was argumentative where it stated
that the jury should find defendant not guilty if there was
reasonable ground to believe from the evidence that another
could have killed the deceased.65 It has been held argumentative
for the court to say to the jury, "the evidence justifies the claim
of the government/'66 In a prosecution of a husband and father
for desertion, it is argumentative for the court to charge that
the defendant is not guilty if he provided a home for his wife
and child at the home of his parents.67 It is argumentative to
tell the jury that a defendant on trial for violation of the pro-
hibition laws is entitled to the same consideration as one on
trial for any other crime.68
§ 110. Appeals to sympathy or prejudice.
Instructions which tend to excite sympathy or prejudice
should not be given. The giving of such instruction will ordinarily
result in a reversal.
A fair trial on the issues is defeated by instructions which
have a tendency to excite sympathy, passion, or prejudice. If
given, this kind of instruction will ordinarily work a reversal
at the instance of the party prejudiced.69
The court may, in its discretion, when the circumstances
warrant it, instruct the jury that it is their duty to be guided
by the evidence and that they should not be influenced by
prejudice or sympathy;70 but an instruction which implies
chat the jury is sympathetic for the injured party and charges
them that sympathy is not to be the basis of their verdict is
erroneous and prejudicial to the defendant.71
There was a violation of the rule by an instruction that "in
passing upon this case you will be governed by the law and
the evidence and it is your duty not to allow yourselves to be
ration for murder. Twltty v. State, 68 McFarland v. State, 22 AlaApp
168 Ala 59, 53 S 308, 609, 118 S 500.
64 Fields v. State, 154 Ark 188, 69 Northwestern Hut. Life Ins.
241 SW 901. Co. v. Stevens, 18 CCA 107, 71 F
65 Wright v. State, 15 AlaApp 258; Wolf v. United States, 170 CCA
91, 72 S 564. 364, 259 F 388.
66 Sunderland v. United States, 70 Dewert v. Cincinnati Milling
19 F2d 202. Mach. Co., 38 OLE 318; Fletcher v.
67 Stephens v. State, 172 Ark 398, Bodie, 13 OLA 708.
288 SW 926. 7i Toledo, C. & 0. R. R. Co. v.
Miller, 103 OhSt 17, 132 NE 156.
§110 INSTRUCTIONS— RULES GOVERNING 324
influenced by the presence of a lobby In the court-room opposed
to the granting of the plaintiff's petition."72
In an action against a benefit society, there was an appeal
to sympathy by an instruction which asked the jury to de-
termine the issues "in the same manner as if the widow was
plaintiff, and not the brother."73 In an action for seduction,
the jury were told in one instruction that a certain state of
facts would constitute a strong: circumstance tending to es-
tablish plaintiff's right to recover and in another instruction
were informed that if these same facts were susceptible of
explanation as well on the theory of innocence as guilt, such
facts, from considerations of sympathy and public policy, should
be construed favorably to defendant. The instruction was errone-
ous, as the question to be decided was whether the plaintiff had
sustained damage and he was entitled to have the matter
determined free from the influence of sentimental consider-
ations.74
So there was an improper appeal in a case where it was
charged that the fact that one of the parties was a corporation
should not affect the verdict and that there should be no sym-
pathy or favor shown plaintiff because of the relative financial
condition of the parties.75 The case was the same with a charge
which reminded the jury of the benefits conferred on the public
by corporations.76
There was a clear attempt to arouse prejudice in an action
by a widow and her child against an insurance company, where
the charge of the court was in part in the following language :
"Now, gentlemen of the jury, I try to close my eyes as well as
I can to the fact that a woman and child have any interest
whatever in the result of a controversy when it is brought
into court. I can not always do that. I don't suppose you can.
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-respect,
he would not be fit for a juror. But, so far as it is possible
for you to do that, you do so, and decide the case precisely as
you would if it were between man and man or between a woman
and a woman/177
7* Lynch v. Bates, 139- Ind 206, 7S Fletcher v. Kansas City Rys.
38 NE 806. Co. (MoApp), 221 SW 1070.
73 National Council Knights & 76 Starling v, Selraa Cotton Mills,
Ladies of Security v. O'Brien, 112 171 NC 222, 88 SE 242.
IlIApp 40. 77 Northwestern Mut. Life Ins.
74 Robertson v. Brown, 56 Neb Go. v. Stevens, 18 CCA 107, 71 F
390, 76 NW 891. 258.
325 FORM AND ARRANGEMENT § 111
In a suit against a street railway company for negligently
causing the death of a child, where the trial judge told the jury
it was natural for them to have their sympathies aroused in
behalf of suffering, and was not asked to instruct that the jury
must not allow their sympathies to enter into the consideration
of the case, and where the court afterward cautioned the jury
to divest themselves of sympathy or prejudice in arriving at
their verdict, it was held that there was no reversible error.78
§ 111. Special verdicts, interrogatories, and findings — Prepara-
tion, form, and submission.
A "special verdict" consists of questions on all the issues
in a case, submitted to and answered by the jury and not ac-
companied by a general verdict.
"Special findings" or "interrogatories" are questions on only
part of the issues, submitted to and answered by the jury and
are accompanied by a general verdict.
The terms "special verdict" and "special findings" (or "inter-
rogatories") have been loosely interchanged as denoting the
same thing in actions tried by a jury. They have no true applica-
tion to findings of a court sitting as a trier of facts.
., . -Rightly understood, these terms are not interchangeable.
A "special verdict*** "consists of Questions- submitted to and an-
swered by a jury, which cover all the issues in a case necessary
to be determined in order to grant a judgment.79 A special
verdict is never properly accompanied by a general verdict by
which the jury find generally in favor of a party.80 "Special
findings" or interrogatories are questions submitted and answered
78 Citizens Street Ry. Co. v. Dan, (nature and essentials of special
102 Tenn 320, 52 SW 177. verdict stated).
79 California. Montgomery v. Wisconsin. Lee v. Chicago, St.
Sayre, 91 Cal 206, 27 P 648. P., M. & O. Ry. Co., 101 Wis 352,
Connecticut. Freedman v. New 77 NW 714.
-York, 1ST. H. & H. .R.'Co., 81 Conn A special vet-diet is -one by which
60-1/71 A 901, 15 AnnCas 464. "• the jury find -the facts, leaving the
Missouri. Pine Art Pictures Corp. judgment to the court. The court
v. Karzin (MoApp), 29 SW2d 170. said: "Too much emphasis can not
New York. Carr v. Carr, 52 NY be laid on this requirement." Bige-
251; People v. McClure, 148 NY 95, low v. Danielson, 102 Wis 470, 78
42 NE 523; Daley v. Brown, 167 NY NW 599; Mauch v. Hartford, 112
381, 60 NE 752. Wis 40, 87 NW 816; Olwell v. Sko-
Oregon. Turner v. Cyrus, 91 Or bis, 126 Wis 308, 105 NW 777.
462, 179 P 279. 8O Ward v. Chicago, M» & St. P.
Pennsylvania. Panek v. Scranton Ry. Co., 102 Wis 215, 78 NW 442;
Ry. Co., 258 Pa 589, 102 A 274; Schaidler v. Chicago & N» W. Ry.
James v. Columbia County Agricul- Co., 102 Wis 564, 78 NW 732; Wills
tural, Horticultural & Mechanical v. Ashland Light; Power & Street
Assn.» 117 PaSuper' 277, 178 ,A 326 Ry. Co., 108 Wis 255, 84 NW 998.
sin
INSTRUCTION'S — RULES GOVERNING
326
on only part of the material issues and are accompanied by a
general verdict; special findings are not a complete verdict in
themselves.8 !
The practice depends much upon the statutes of each state.
But the use of special verdicts is proper under the common law
and originated in the Statute of Westminster II. In states not
controlled by statutory provision, it is held to be within the
discretion of the trial court to require a special verdict or re-
quire special findings.82
In some states, a statute requires that a special verdict
or special finding be submitted when demand is made in due
time.1*3 Some of these statutes provide that the court may on
* f Federal. Elliott v. E. C. Miller
& Co., 158 F 868.
Connecticut. Freedman v. New
York, X. H. & H. R. Co., 81 Conn
601, 71 A 901, 15 AnnCas 464,
Indiana. Consolidated Stone Co.
v. 'Williams, 26 IndApp 131, 57 NB
558, 84 AmSt 278.
Ohio. Gale v. Priddy, 66 OhSt
400, 64 NE 437.
A peculiarity in the Ohio Statute
permits interrogatories to accom-
pany a special verdict. IL 0.
§ 2815.16.
Wisconsin. McDcmgall v. Ashland
Sulphite-Fibre Co., 97 Wis 382, 73
NW 327.
S2 Arkansas. Southern Life Ins.
Co. v. Roberts, 173 Ark 903, 294 SW
14,
California. In re Witt's Estate,
198 Cai 407, 245 P 197; Weintraub
v. Soronow, 115 CalApp 145, 1 P2d
28; De Martini v. Wheatley, 128 Cal
App 230, 14 P2d 889; Boomer v.
Mmir (CaiApp), 24 P2d 570; Walton
v. Southern Pacific Co, (CalApp)3
48 P2d 108; Hughes v, Qnakenbush,
1 Ca!App2d 340, 37 P2d 99.
Colorado. London Guarantee &
Ace. Co. v. Officer, 78 Colo 441, 242
P 989; Denver Tramway Corp. v.
Kuttner, 95 Colo 312, 35 P2d 852.
Connecticut. Ford v. H. W. Du~
biskle Co., 105 Conn 572, 136 A 560;
Morgan v. Harchesseault, 117 Conn
607, 169 A 609.
Illinois. Cripe v. Pevely Dairy
Co., 275 IllApp 281.
Indiana, Oaktown Tel. Co. v. Mil-
ler, 101 IndApp 108, 194 NE 741.
Kansas. Alexander v. Wehkamp,
171 Kan 285, 232 P2d 440.
Massachusetts. Stone v. Orth
Chevrolet Co., 284 Mass 525, 187
NE 910.
Michigan. Rich v. Daily Cream-
ery Co., 303 Mich 344, 6 NW2d 539.
Nebraska. Masonic BIdg. Corp. v.
Carlsen, 128 Neb 108, 258 NW 44.
New Hampshire. Bridges v. Great
Falls Mfg. Co., 85 NH 220, 15& A
697.
North Carolina, Gasque v. Ashe-
viile, 207 NG 821, 178 SE 848.
Oklahoma. LaFayette v. Bass,
122 Okl 182, 252 P 1101; Kirk v.
Leeman, 163 Okl 236, 22 P2d 382.
South Carolina. Barton v. South-
ern Ry. Co., 171 SC 46, 171 SE 5.
Washington. Child v. Hill, 155
Wash 133, 283 P 1076; Schirmer v.
Nethercutt, 157 Wash 172, 288 P
265.
West Virginia. Bartlett v. Mit-
chell, US WVa 465, 168 SE 662.
Wyoming. Opitz v. Newcastle, 35
Wyo 358, 24$ P 799; Shikany v. Salt
Creek Transp. Co., 48 Wyo 190, 45
P2d 645.
83 New York. Bergman v. Scot-
tish Union & Nat. Ins. Co., 264 NY
205, 190 NE 409, revg. 240 AppDiv
714, 265 NYS 1006; Sherman v. Mil-
lard, 144 Misc 748, 259 NYS 415.
Ohio. Dowd-Feder Co. v. Schreyer,
124 OhSt 504, 179 NE 411; Horwitz
v. Eurove, 129 OhSt 8, 193 NE 644,
90 ALE 782; F^sok r. MiMkiii, 80
327
FORM AND ARRANGEMENT
§111
Its own motion require a special verdict or submit interroga-
tories.84
The object of the special verdict is to have the jury find
the facts upon all the material ultimate issues, leaving the court
to apply the law to the facts and thereupon to render judg-
ment83 The effect is that the jury finds the facts without hav-
ing the knowledge of the legal result of such findings, thus
removing from the jury's findings any bias or prejudice or
sympathy of the jury in favor of or against any party.86
"Special findings" are intended to test or explain or limit
the effect of a general verdict; to enable the court to obtain
the jury's view on some material issues and to guard against
any misapplication of the law by the jury.s7 They do not in
OhApp 543, 173 NE 626; Cincin-
nati Street Ey. Co. v. Blackburn, 45
OhApp 153, 186 NE 826, 39 OLE
26.
A special interrogatory offered,
but not suggested or tendered until
after the general charge when the
jury is about to retire for delibera-
tions, may be rejected by the court,
in the exercise of a sound discre-
tion. Bobbitt v. Maher Beverage
Co., 152 OhSt 246, 40 OH) 290, 89
NE2d 583.
Texas. Missouri-Kansas-Texas R.
Co. v. Rockwall County Levee Imp.
Dist. No. 3, 117 Tex 34, 297 SW 206,
revg. 266 SW 163; Robert Oil Corp.
v. Garrett (TexCivApp), 22 SW2d
508; City Ice Delivery Co. v. Suggs
(TexCivApp), 60 SW2d 538; Singer
Iron & Steel Co, v. Republic Iron &
Metal Co. (TexGivApp), 80 SW2d
1037.
Wisconsin. Dick v. Heisler, 184
Wis 77, 198 NW 734; Millard v.
North River Ins. Co., 201 Wis 69,
228 NW 746; Brown Deer Lbr. Co.
v. Campbell-Shirk Co., 201 Wis 333,
230 NW 81; Conway v. Providence
Washington Ins. Co., 201 Wis 502,
230 NW 630; Liberty Tea Co. v.
La Salle Fire Ins. Co., 206 Wis 639,
238 NW 399; Paluczak v. Jones, 209
Wis 640, 245 NW 655; Rebholz v.
Wettengel, 211 Wis 285, 248 NW 109.
Wisconsin Stat. 1955, §270.27.
84 Gherke v. Cochran, 198 Wis 34,
222 NW 304, 223 NW 425; Honore
v. Ludwig, 211 Wis 354, 247 NW
335.
Wisconsin Stat 1955, §270,27.
85 Bigelow v. Danielson, 102 Wis
470, 78 NW 599.
S6Ward v. Chicago, M. & St. P.
Ry. Co., 102 Wis 215, 78 NW 442.
87 Connecticut. Ziman v. Whitley,
110 Conn 108, 147 A 370.
Indiana. Cleveland, C., C. & St.
L. Ry. Co. v. True, 53 IirdApp 168,
100 NE 22.
Kansas. Morrow v. Board of
County Comrs., 21 Kan 484; Jones v.
Southwestern Interurban Ry. Co., 92
Kan 809, 141 P 999.
Michigan. Holman v. Cole, 242
Mich 402, 218 NW 795.
Minnesota. Boese v. Langley, 213
Minn 440, 7 NW2d 355.
New York. Lierness v. Long
Island R. Co., 217 AppDiv 301, 216
NYS 656.
Ohio. Pecsok v. Millikin, 36 Oh
App 543, 173 NE 626; Kennard v.
Palmer, 148 OhSt 1, 27 OhO 554, 53
NE2d 908; Simpson v. Springer, 143
OhSt 324, 28 OhO 293, 55 NE2d
418, 155 ALR 583; Masters v. New
York Cent. R. Co., 147 OhSt 293, 34
OhO 223, 70 NE2d 898; Anderson
v. S. E. Johnson Co., 150 OhSt 169,
37 OhO 451, 80 NE2d 757; Klever
v. Reid Bros. Express, Inc., 151 Oh
St 467, 39 OhO 280, 86 NE2d 608,
A peculiarity in the Ohio Statute
permits special interrogatories to
be submitted with special verdicts.
R. C. §2315.16.
§111
INSTRUCTIONS — RULES GOVERNING
328
themselves furnish a complete factual basis for a judgment;
but are a check upon the uncertainty of a general verdict.88
Evidentiary matters are not to be submitted for special
findings or verdicts, but only the ultimate controlling facts.89
If the verdict as framed correctly covers all essential issues,
it is not error to refuse to submit other questions requested in
different form.90 If the verdict as framed by the court does
88 Morrow v. Board of County
Comrs., 21 Kan 484.
S9 Illinois. Wicks v. Cuneo-Hen-
neberry Co., 319 111 344, 150 NE
276, affg, 234 IllApp 502; Schluraff
v. Shore Line Motor Coach Co., 269
IllApp 569. See Keys v. North, 271
IllApp 119.
Kansas. Doty v. Crystal Ice &
Fuel Co., 122 Kan G53, 253 P 611.
Ohio. Mellon v. Weber, 115 OhSt
81, 152 XE 753; Baltimore & 0. R.
Co. v. Brown, 36 OhApp 404, 173
XE 298; Wills v. Anchor Cartage &
Storage Co., 38 OhApp 358, 33 OLR
291*, 176 XE 680; Orville v. Goch-
nauer, 43 OhApp 422, 183 XE 391;
Blum v. Shepard, 4 OLA 314; Zilch
v. Sadowski, 10 OLA 423; Ohio Bell
Tel. Co. v. Corley, 13 OLA 720.
Texas. Texas & P. Ry. Co. v. Ray
( TexCivApp), 287 SW 91; Houston
Compress Co. v. Houston Steel &
Foundry Co. (TexCivApp), 22 SW2d
737; Scales v. Lindsay (TexCivApp),
43 SW2d 286; Northern Texas Trac.
Co. v. Bruce {TexCivApp}, 77 SW2d
889; Wright v. State (TexCivApp},
SO SW2d 1015; Bush v. Gaffney
(TexCivApp), 84 SW2d 759; Free-
man v. Galveston, H. & S. A. Ry. Co.
(TexComApp), 285 SW 607, revg.
273 SW 979, reh. den, in 287 SW
902.
Wisconsin. Goese! v. Davis, 100
Wis 678, 76 XW 768; Baxter v. Chi-
cago & N. W. Ry. Co., 104 Wis 307,
80 NW 644; Rowley v. Chicago, M.
& St. P. Ry. Co., 135 Wis 208, 115
NW 865; Baraboo v. Excelsior
Creamery Co., 171 Wis 242, 177 NW
36; Williams v. Williams, 210 Wis
304, 240 NW 322.
lit Mauch v. Hartford, 112 Wis
40, 87 NW 816, an action to recover
for personal injuries to -a pedestrian
on a sidewalk, based on a statute
making the municipality liable for
maintaining a walk that was "in-
sufficient and out of repair," the
following* questions were suggested
as a substantive basis for framing
question for a special verdict: (1)
Was the place where plaintiff was
injured insufficient for public travel ?
12) If so, did the officers of the
city, charged with the immediate
duty of attending to such matters,
have notice of such insufficient con-
dition for a sufficient length of time
to have repaired the walk before the
accident, by the exercise of reason-
able diligence? (3) Was the insuf-
ficient condition of the sidewalk,
•claimed to have existed, the proxi-
mate cause of the injury plaintiff
received? (4) Was plaintiff guilty
of any want of ordinary care which
contributed to produce the injury
received? (5) What sum of money
will it take to compensate plaintiff
for the injury she received?
90Lyle v. McCormick Harvesting
Mack Co., 108 Wis 81, 84 NW 18,
51 LRA 906; Simmer v. Fox River
Valley Elec. Ry. Co., 118 Wis 614,
95 NW 957; Anderson v. Sparks, 142
Wis 398, 125 NW 925; Mickuczauski
v. Helmholz Mitten Co., 148 Wis 153,
134 NW 360; Krawiecki v. -Kieck-
hefer Box Co., 151 Wis 176, 138 NW
710; Hess v. Zimmer, 152 Wis 193,
139 NW 740; Langowski v. Wiscon-
sin Cent Ry. Co., 153 Wis 418, 141
NW 236; Hilden v. Great Lakes Coal
& Dock Co., 156 Wis 205, 145 NW
770; Taylor v. Northern Coal <& Dock
Co., 161 Wis 223, 152 NW 465, Ann
Cas 1916C, 167; Guillaume v. Wis-
consin-Minnesota Light & Power Co.,
161 Wis -636, 155 NW 143; Kellner
v. Christiansen, 169 Wis 390, "172
329
FORM AND ARRANGEMENT
111
not cover all controlling Issues of fact, It is the duty of counsel
to request a question on any omitted issue. In the absence of
such request, any issue omitted is deemed to be submitted for
decision by the court.9 *
There should be a separate submission for separate issues
of fact,92 and mixed questions of law and fact should not be
submitted.93 Abstract propositions, or conclusions of law, should
not be submitted under the guise of special interrogatories.94
Nor should undisputed facts be submitted.95
In some states, the questions submitted should be framed
by the court and the court has a large discretion in respect
thereto.96
NW 796; Baraboo v. Excelsior
Creamery Co., 171 Wis 242, 177 NW
36; Lozon v. Leamon Bakery Co.,
186 Wis 84, 202 NW 296; Kastier v.
Tures, 191 Wis 120, 210 NW 415;
Honore v. Ludwig, 211 Wis 354, 247
NW 335.
91 Gist v. Johnson-Carey Co., 158
Wis 188, 147 NW 1079, AnnCas
1916E, 460; Ptieips v. Monroe, 166
Wis 315, 165 NW 471; Weiberg v.
Kellogg, 188 Wis 97, 205 NW 896;
Delfosse v. New Franken Oil Co.,
201 Wis 401, 230 NW 31; Breuer v.
Arenz, 202 Wis 453, 233 NW 76;
Lefebvre v. Autoist Mut. Ins. Co.,
205 Wis 115, 236 NW 684; Schu-
macher v. Carl J. Neumann Dredg-
ing & Imp. Co., 206 Wis 220, 239
NW 459.
Wisconsin Stat. 1955, §270.28.
*»2 Salo v. Dorau, 191 Wis 618, 211
NW 762; Gherke v. Cochran, 198
Wis 34, 222 NW 304, 223 NW 425;
Pettric v. Gridley Dairy Co., 202
Wis 289, 232 NW 595.
Only special questions covering
the issues made by the pleadings and
controverted in the evidence, each so
framed as to cover a single issue
and to admit of a direct answer,
should be included in a special ver-
dict. Mauch v. Hartford, 112 Wis
40, 87 NW 816.
Issues that are single should not
be subdivided, nor should the jury
be required to decide a single issue
by viewing it in various aspects.
Mauch v. Hartford, 112 Wis 40, 87
NW 816,
The number of questions should
coincide with the number of single
controverted issues of fact and be
arranged in logical order. Mauch v.
Hartford, 112 Wis 40, 87 NW 816.
MacDonald v. State ex rel. Fulton,
47 OhApp 223, 40 OLE 236, 191 NE
837.
93 Board of Comrs. of Huntington
County v. Bonebrake, 146 Ind 311,
45 NE 470; Grossnickle v. Avery,
96 IndApp 479, 152 NE 288; Bence
v. Denbo, 98 IndApp 52, 183 NE
326; Gilmore v. Chapman (TexCiv
App), 283 SW 243; First State Bank
v. Dillard (TexCiv App), 71 SW2d
407; Commercial Union Assur. Co.,
Ltd. v. Everidge (TexCivApp), 72
SW2d 311.
94 Socony Burner Corp. v. Gold,
227 AppDiv 369, 237 NTS 552.
95 North Carolina. Clark v. Dill,
208 NC 421, 181 SB 281.
Pennsylvania. But see Altman v.
Standard Refrigerator Co., 315 Pa
465, 173 A 411, where it was held
that the court could submit all the
essential facts, disputed as well as
undisputed.
Texas. Garrett v. State (TexCiv
App), 51 SW2d 822; Gaines v.
Stewart (TexCivApp), 57 SW2d 207;
Daniels v. Stames (TexCivApp), 61
SW2d 548.
Wisconsin. Ridgeway State Bank
v. Severson, 185 Wis 504, 201 NW
806; E. L. Chester Co. v. Wisconsin
Power & Light Co., 211 Wis 158,
247 NW 861.
96 Wright v. Mulvaney, 78 Wis
§112
INSTRUCTIONS — RULES GOVERNING
330
The questions should be so framed that the burden of proof
on each question is on the affirmative.97 It is the jury's duty
to answer each question according to the preponderance of the
evidence thereon, rather than to reconcile the answers. Hence
It is error to instruct that "your answers to these questions, if
any, should be consistent with each other/'98
§ 112. Special verdicts — Instructions concerning.
Where a special verdict is submitted to the jury, the instruc-
tions should be confined to matters to be considered by the jury
in answering the questions.
In submitting a special verdict to the jury, it is reversible
error to instruct the Jury generally upon the law of the case
and thus inform the jury of the effect of their answers to the
questions,9® So, special prayers concluding with the request
39, 46 XW 1045, 9 LEA 307, 23
AmSt 393; McCoy v. Milwaukee
Street Ry. Co., 88 Wis 56, 59 NW
453; Ohlweiler v. Lohmann, 88 Wis
75, 5'J XW 673; Farley v. Chicago
M. & St. P. Ry. Co., 89 Wis 206,
61 XW 769; McGowan v. Chicago
& X. W. Ry. Co., 91 Wis 147, 64 NW
891; Bagnowski v. A. J. Linder-
xnann & Hoverson Co., 93 Wis 592,
67 XW 1131; Pier v. Chicago, M.
& St. P. Ry. Co., 04 Wis 357, 68
XW 464; Schumaker v. Heinemann,
99 Wis 251, 74 XW 785; Goesel v.
Davis, 100 Wis 678, 76 XW 768;
Baxter v. Chicago & X. W. B. Co.,
104 Wis 307, 80 NW 644; Dodge v.
O'Dell's Estate, 106 Wis 296, 82
XW 135; Boyce v. Wilbur Lbr. Co.,
119 Wis 642, 97 XW 563; Oik v.
Marquardt, 203 Wis 470, 234 XW
723; Liberty Tea Co. v. La Salle
Fire Ins. Co., 206 Wis 639, 238 NW
399; Honore v. Ludwig, 211 Wis
354, 247 XW 335.
Wisconsin Stat 1955, § 270.27.
97 Sloan v. Brown County State
Bank, 174 Wis 36, 182 NW 363.
In Kausch v, Chicago, M. Elec.
Ry. Co., 176 Wis 21, 186 XW 257,
the court said: "The questions were
so framed that the burden of proof
was on the affirmative side in each
instance* With reference to each
question the jury were told that
before they could return an affirma-
tive answer they must be satisfied
to a reasonable certainty by a con-
sideration of all the evidence that
the fact inquired about existed. If
not so satisfied, they were directed
to answer the question, 'No/ This
most effectually placed the burden of
proof upon the party required to
prove the affirmative of each ques-
tion propounded, and made a charge
with reference to the burden of proof
unnecessary. * * * It appears
to be a simple and effective way of
impressing- upon the jury the rule
which should govern them in arriv-
ing at their determination, and ren-
dered an instruction with reference
to the burden of proof unnecessary."
9SSt. Louis & S. F. R. Co. v.
Burrows, 62 Kan 89, 61 F 439.
99 Indiana. Louisville, N. A. &
C. Ry. Co. v. Frawley, 110 Ind 18,
9 XE 594; Louisville, N. A. & C.
Ry. Co. v. Lynch, 147 Ind 165, 44
XE 997, 46 NE 471, 34 LRA 293;
Boyce v. Schroeder, 21 IndApp 28,
51 XE 376.
Kansas. Snyder v. Eriksen, 109
Kan 314, 198 P 1080.
Massachusetts, Tarbell v. Forbes,
177 Mass 238, 58 NE 873.
Michigan. Taylor v. Davarn, 191
Mich 243, 157 NW 572; Mitchell v.
Perkins, 334 Mich 192, 54 NW2d
293.
331
FORM AND ARRANGEMENT
§112
that the court Instruct that the "plaintiff cannot recover" are
rightly refused, since the jury responds to the issues instead of
finding a general verdict, and instructions of this character might
have a tendency to confuse. f
But general instructions as to burden of proof, credibility of
witnesses, rules for computing damages and similar matter
North Carolina. Earnhardt v.
Clement, 137 NC 91, 49 SE 49.
North Dakota. Morrison v. Lee,
13 ND 591, 102 NW 223; Daniels v.
Payne, 48 ND 60, 182 NW 1010;
Olson v. Horton Motor Co., 48 ND
490, 185 NW 365; Asch v. Washburn
Lignite Coal Co., 48 ND 734, 186
NW 757.
Ohio. Dowd-Feder Co. v. Schrey-
er, 124 OtiSt 504, 179 NE 411; Lan-
don v. Lee Motors, 161 OhSt 82,
53 OhQ 25, 118 NE2d 147; Gendier
v. Cleveland R. Co., 13 OhApp 48.
Rhode Island. Smith v. Rhode
Island Co., 39 RI 146, 98 A 1.
South Dakota. In re Fleming's
Estate, 42 SD 193, 173 NW 836.
Texas. Petty v. San Antonio
(Tex), 181 SW 224; Eureka Ice Co.
v. Buckaloo (TexCivApp), 188 SW
510; Hovey v. See (TexCivApp), 191
SW 606; Dallas Hotel Co. v. Fox
(TexCivApp), 196 SW 647; Rosser
v. Cole (TexCivApp), 226 SW 510;
Hines v. Hodges (TexCivApp), 238
SW 349; Fort Worth & D. C. Ry.
Co. v. Amason (TexCivApp), 239
SW 359; Humble Oil & Ref. Co. v.
Strauss (TexCivApp), 243 SW 528;
Southwestern Tel. & T. Co. v. French
(TexCivApp), 245 SW 997; Galves-
ton, H. & S. A. Ry. Co. v. Todd (Tex
CivApp), 8 SW2d 1104; Looney v.
Elliott (TexCivApp), 52 SW2d 949;
Texas & N* O. R. Co. v. Harrington
(TexComApp), 235 SW 188; Peveto
v. Texas & N. O. Ry. Co. (TexCom
App), 238 SW 892,
Wisconsin. Coolican v. Milwau-
kee & Sault Ste. Marie Imp. Co.,
79 Wis 471, 48 NW 717; Reed v.
Madison, 85 Wis 667, 56 NW 182;
Klatt v. N. C. Foster Lbr. Co., 97
Wis 641, 73 NW 563; Johnson v. St.
Paul & W. Coal Co., 126 Wis 492,
105 NW 1048; Campbell v. Ger-
mania Fire Ins. Co., 163 Wis 329,
158 NW 63; Christ! v. Hauert, 164
Wis 624, 160 NW 1061; McHatton
v. McDonnell's Estate, 166 Wis 323,
165 NW 468; Becker v. West Side
Dye Works, 172 Wis 1, 177 NW 007;
Kausch v. Chicago & M. Elec. Ry.
Co., 176 Wis 21, 186 NW 257; Beach
v. Gehi, 204 Wis 367, 235 NW 778.
In Wisconsin an instruction in
somewhat the following form is
given relative to special verdicts:
"In all cases triable by a jury it
is the duty of the presiding judge
to decide all questions of law and
to instruct the jury upon the law
applicable to their duties in the case.
It is the duty of the jury to decide
the disputed issues of fact. The
proper performance of these duties
by judge and jury results in a proper
judgment. In this case, in order
to assist the jury to decide the issues
of fact, such issues have been
framed by the court in the form
of special questions. Your answers
to these questions will constitute
your verdict. You are to answer
the questions solely upon the evi-
dence received on this trial. You
are to consider the evidence in the
light of the court's instructions and
of sound judgment, and leave out
consideration of everything else.
You should not concern yourselves
about whether your answers to the
questions will be favorable to one
party or the other nor with what
may be the final result. You should
give sole attention to your duty to
ascertain and announce the facts as
the evidence discloses the facts to be.
The consequence of your findings*
if honestly and intelligently made,
will be justice."
1 People v, Murray, 52 Mich 288,
17 NW 843; Witsell v. West Ashe-
ville & S. S. Ry. Co., 120 NC 557,
27 SE 125.
§112
INSTRUCTIONS — RULES GOVERNING
332
which, do not inform the jury as to the effect of their answers
are proper.2 Instructions which define the terms used in the
questions and which assist the jury to understand and apply the
evidence in answering each question are proper.3
All parts of the charge bearing1 on a particular question
should be given together in connection with the submission of
the question and failure to do so will be considered error if it
appears that the jury was misled thereby.4
An instruction which does not relate to any issue of fact
in the case should not be given.5
The court should inform the jury that their findings are
to be based on a preponderance of the evidence.6 No additional
2 San Antonio v. Fike (TexCiv
Appt, 224 SW Ull; Montgomery v.
Gallas i TexCiv App), 225 SW 557;
Sehaff v. Lynn tTexCivAppK 238
SW 1034; Lyle v. MeCormick Har-
vesting Mach. Co., 108 Wis 81, 84
XW IS, 51 LEA 906; Horn v. La-
Crosse Box Co., 131 Wis 384, 111
XW 522.
3 Baxter v. Chicago & X. W. R.
Gx, 104 Wis SOT, 80 NW 644; Fox
v. Martin, 104 Wis 581, 80 NW 921;
Bump v. Voights, 212 Wis 256, 249
NW 508,
4 Bartlett v. Collins, 109 Wis 477,
b3 XW 703, 83 AmSt 928; Banderob
v. Wisconsin Cent. R. Co., 133 Wis
249, 113 NW 738; Becker v. West
Side Dye Works, 172 Wis 1, 177
NW y<>7.
It Is proper to refuse requests in-
applicable to any of the questions
of the special verdict, Guillaume v.
Wisconsin-Minnesota Light & Power
Co., 1»U Wis 636, 155 XW 143. See
also Sehiaidier v, Chicago & N. W.
By. Co., 102 Wis 564, 78 XW 732;
Rhyner v. Menasha, 107 Wis 201,
83 "XW 303; Schrunk v. St. Joseph,
120 Wis 223, 97 NW 946.
5 McHatton v. McDonnell's Estate,
166 Wis 323, 105 XW 468; Wiger v.
Mutual Life Ins. Co., 205 Wis 95,
236 XW 534; Vaningan v. Mueller,
208 Wis 527, 243 NW 419.
6 Frazier v. Brown, 124 Neb 746,
248 NW 69.
Under the Wisconsin practice, the
court should state under each ques-
tion submitted that the burden of
proof is upon the plaintiff or upon
the defendant, as the case may be.
In Schacht v. Quick, 178 Wis 330,
190 XW 87, 25 ALR 130, a damage
action for the death of plaintiff's
husband from being struck by an
automobile while he was making re-
pairs to his own car at the left
side of the highway, it was said on
appeal: "This court has frequently
criticized the giving of general in-
structions where a special verdict
is submitted. Instructions as to the
law of the case should be given un-
der appropriate questions, so that
there can be no mistake on the part
of the jury as to what questions
they apply. * * * Under the
verdict submitted, the burden of
proof was on the plaintiff as to
questions one, two, three, and four
and on the defendant as to ques-
tion five relating to contributory
negligence. In instructing under
question three the court said: ' . . .
The burden of proof as to each of
the first five questions of the spe-
cial verdict is on the affirmative,
and what I have said on that subject
in connection with the first and sec-
ond question applies with equal force
to the five.7 While this was tech-
nically correct, it was confusing be-
cause of the fact that plaintiff had
the affirmative of the first four ques-
tions, and the defendant had the
affirmative of question five. The jury
might well have had the impression
that the burden of proof was upon
the plaintiff as to all of the first five
333
FORM AND ARRANGEMENT
§112
charge on the matter of preponderance of the evidence is neces-
sary where the court in submitting a special issue began it
thus: "Do you find from a preponderance of the evidence that
* * *."7 If the questions be so framed that each inquires
whether a specified ultimate fact in issue existed or occurred,
it is sufficient on the burden of proof to instruct the jury
generally that in case they become satisfied from the evidence
to a reasonable certainty on any question that the alleged
fact existed or occurred then they should answer the question
"yes," and if not so satisfied they should answer it "no,"8
questions. The better practice is
to state under each question that
the burden of proof is upon the
defendant or upon the plaintiff as
the case may be, instead of using
the terms affirmative or negative.
We do not hold that there is re-
versible error as to instructions on
the question of burden of proof, but,
as there must be a new trial for
failure to give the instruction with
reference to the right of the de-
ceased to stop on the left-hand side
' of the road, we deem it best to call
attention to the confusion that
might arise were similar instruc-
tions repeated when the case is
again tried."
It is proper and sufficient for the
court to tell the jury that as to any
question submitted, if the greater
weight of the evidence satisfies them
to a reasonable certainty that their
answer should be "yes," that they
should so answer, and conversely if
the greater weight of the evidence
satisfies them that they should an-
swer 'kno.r Kaboth v. Schrewe, 211
Wis 280, 247 NW 835.
7 Commercial Standard Ins. Co.
v. Lee (TexCivApp), 37 SW2d 789;
Texas Employers Ins. Assn. v. Fin-
ney (TexCivApp), 45 SW2d 298;
Texas Indem. Ins, Co. v. Bridges
(TexCivApp), 52 SW2d 1075.
8Kausch v. Chicago, M. Elec. Ry.
Co., 176 Wis 21, 186 XW 257.
CHAFTEK 5
PERTINENCY
122.
123.
124.
125.
126.
Section.
115. Necessity that Instructions
should be pertinent in civil
cases.
llf>. Pertinency of instructions in
criminal prosecutions.
117. Pertinency to pleadings in civil
cases.
118. Pertinency to averments In in-
dictment,
113. Pertinency to evidence ad-
mitted in civil cases.
120. Pertinency to evidence ad-
mitted in criminal prosecu-
tions,
§ 115. Necessity that instructions should be pertinent in civil
cases.
Instructions must be pertinent to the evidence and the issues
made by the pleadings.
In other words, the instructions must fairly and reasonably
present no more than the issues joined by the pleadings and pre-
sented by the evidence, l and this is true though a proposition of
Section.
121. Abstract instructions in civil
cases.
Abstract instructions in crimi-
nal prosecutions.
Ignoring1 issues in civil cases.
Ignoring evidence in civil
cases.
Ignoring issues and evidence
in criminal prosecutions.
Directing" verdict if jury be-
lieves certain evidence or
finds certain facts — Formula
instructions.
s Federal. Memphis Street By.
Co. v. Illinois Cent. R. Co., 155 CCA
307, 242 F 617.
California. Wahlgren v, Market
Street Ry. Co., 132 Ca! 656, 62 P
308, 84 P 993; Shelton v. Michael,
31 CalApp 328, 160 P 578; Dover v.
Archaxnbault, 57 CalApp 650? 208 P
178.
Colorado. Davis v. Shepherd, 31
Colo 141, 72 P 57.
Connecticut. Court Harmony, A.
O. P. v. Court Abraham Lincoln, A.
O. F., 70 Conn 634, 40 A 606; Korn-
blau v. McDermant, 90 Conn 624, 98
A 587.
Florida. Seaboard Air Line Ry.
v. Royal Palm Soap Co., 80 Fla
800, 86 S 835; Charlotte Harbor &
X. Ry. Co. v. Truette, 81 Fla 152,
87 S 427.
Georgia. Hill v. Ludden & Bates
Southern Music House, 118 Ga 320,
38 SE 752; Sammons v. Wilson, 20
GaApp 241, 92 SE 950 (and allega-
tion or proof as to damages and ex-
penses in suit for slander) ; Cuth-
bert v. Gunn, 21 GaApp 442, 94 SE
637.
Idaho. Austin v. Brown Bros. Co.,
30 Idaho 167, 164 P 95; Nordquist
v. W. A. Simons Co., 54 Idaho 21,
28 P2d 207.
Illinois. Bel! v. Toluca Coal Co.,
272 111 576, 112 NE 311; Travelers
Ins. Co. v. Ayers, 119 IlIApp 402;
Schoen v. Wolfson, 263 IlIApp 414.
In an action for collision between
automobile and interurban car,
where there was no evidence or
pleading with respect to failure of
the car to stop, it was error to
charge with respect to the speed of
the car at the crossing. Butler v.
Illinois Traction, Inc., 253 HIApp
135.
334
335
PERTINENCY
§115
Indiana. Norris v. Casel, 90 Ind
143; Cleveland, C.f C. & St. L. Ry.
Co. v. Griswold, 51 IndApp 497, 97
NE 1030; Conder v. Griffith, 61 Ind
App 218, 111 NE S16; Chicago & E.
R. Co. v. Biddinger, 61 IndApp 419,
109 NE 953; Chicago & E. I. Ry.
Co. Y. Whipking, 96 IndApp 167, 170
NE 548; Bodine v. Justice, 119 Ind
App 393, 35 NE2d 504; Automobile
Underwriters v. Smith, 126 IndApp
332, 133 NE2d 72.
It is not error to refuse a request
to charge on matters that are not
within the issues. Welch v. Page, 85
IndApp 301, 154 NE 24.
Iowa. Davis v. Hansen, 187 la
583, 172 NW 1; Waldman v. Sanders
Motor Co., 214 la 1139, 243 NW 555.
Kansas. Wade v. Empire Dist.
Eiec. Co., 98 Kan 366, 158 P 28.
Kentucky. Louisville & N. R. Co.
v. Logan's Admx., 178 Ky 29, 193
SW 537; Pugli v. Eberlein, 190 Ky
386, 227 SW 467; Rosenham's Exr,
v. Bruens, 194 Ky 290, 238 SW 740;
Louisville & N. R. Co. v. O'Flynn,
213 Ky 346, 281 SW 174; Conn v.
Lexington Utilities Co., 233 Ky 230,
25 SW2d 370; Mannington Fuel Co.
v. Ray's Admx., 250 Ky 736, 63
SW2d 933; Suter's Admr. v. Ken-
tucky Power & Light Co., 256 Ky
356, 76 SW2d 29.
Massachusetts. Lindsey v. Leigh-
ton, 150 Mass 285, 22 NE 901, 15
AmSt 199; Holmes v. Sullivan, 241
Mass 195, 134 NE 821 (no allega-
tion or proof of gross carelessness).
Missouri State ex rel. Duvall v.
Ellison, 283 Mo 532, 223 SW 651;
State ex rel, John Hancock Mut.
Life Ins. Co. v. Allen, 313 Mo 384,
282 SW 46 (saying that a charge is
defective whether it restricts or en-
larges the issues); Neal v. Curtis
& Co. Mfg. Co., 328 Mo 389, 41 SW2d
543; Russell v. Empire Storage &
Ice Co., 332 Mo 707, 59 SW2d 1061;
S taker v. Jacob Bold Packing Co.,
84 Mo App 565; Wagner v. Chicago
& A. R. Co., 209 MoApp 121, 232
SW 771.
Montana. Schumacher v. Murray
Hosp., 58 Mont 447, 193 P 397.
Nebraska. Hanover Fire Ins. Co.
v. Stoddard, 52 Neb 745, 73 NW 291;
duller v. Pratt, 108 Neb 473, 1S7
NW 902.
New Mexico. Rarey v. McAdoo,
28 X3I 14, 205 P 731; Federal Re-
serve Bank v. Upton, 34 NM 509,
2S5 P 494.
New York. Lamkin v. Palmer,
164 XY 201, 58 NE 123; Franklin
v. Hoadley, 145 AppDiv 228, 130
XYS 47.
North Carolina. Willis v. Atlantic
& D. R. Co., 122 NC 905, 29 SE
941.
Ohio. Pennsylvania Co. v. Hart,
101 OhSt 196, 128 NE 142; Astrup
v. Rehbnrg, 42 OhApp 126, 181 NE
551, 36 OLE 405; Britton v. Lake-
wood, 89 OhApp 150, 45 OhO 390,
97 NE2d 78.
Oklahoma. Ft. Smith & W. R.
Co. v. Collins, 26 Oki 82, 108 P
550; St. Louis & S. F. Ry. Co. v.
Dobyns, 57 Okl 643, 157 P 735; Dill
v. Johnston, 121 Okl 62, 247 P 349;
Prest-0-Lite Co. v. Howery, 169 Okl
408, 37 P2d 303; Osenbaugh v. Vir-
gin & Morse Lbr. Co., 173 Okl 110,
46 P2d 952.
South Carolina. Long v. Hunter,
58 SC 152, 36 SE 579.
Tennessee. Fletcher v-. Louisville
6 N. E. Co., 102 Tenn 1, 49 SW
739.
Texas. Pecos & N. T. Ry. Co. v.
Winkler (TexCivApp), 179 SW 691;
Corpus Christ! Street & Interurban
Ry. Co. v. Kjellberg (TexCivApp),
185 SW 430.
Utah. Davis v. Midvale City, 56
Utah 1, 189 P 74; Riding v. Roy-
lance, 63 Utah 221, 224 P 885.
Virginia. Alexandria Sav. Inst.
v. McViegh, 84 Va 41, 3 SE 885.
Washington. In a damage action,
where there was neither pleading
nor evidence as to plaintiffs im-
paired earning capacity, an instruc-
tion thereon was erroneous. Cole v.
Schaub, 164 Wash 162, 2 P2d 669,
7 P2d 1119.
West Virginia. Blagg v. Balti-
more & 0. R. Co., 83 WVa 449, 98
SE 526; Lively v. Virginian Ry. Co.,
104 WVa 335, 140 SE 51.
115
INSTRUCTIONS — RULES GOVERNING
336
law be correctly stated, for such a statement would amount
to giving an abstract instruction.2 Even though immaterial
matter may be pleaded by a party, the court should not charge
thereon because the result would be confusing as to the actual
issues between the parties.3 The theory is that the jury shall
not be called upon to pass upon immaterial matters.4
Accordingly, the jury should not be charged as to defenses
neither pleaded nor attempted to be proved.5 So, the court
should not instruct on special damages where such damages are
neither pleaded nor proved.6 So, in an action to recover for
2 Florida. American Mfg. Co. v.
A. H. McLeod & Co., 78 Fia 162,
82 S 802.
Georgia. Rowe v. Cole, 176 Ga
592, 168- SE 882.
Illinois. Hoffman v. Stephens, 269
111 376, 109 NE 994; Des Plaines v.
Winkelman, 270 111 149, 110 NE 417;
Commercial State Bank v. Folkerts,
200 IllApp 385.
Minnesota, Rosenberg v. Nelson,
145 Minn 455, 177 NW 659.
Missouri. Bergfeld v. Kansas City
Rys. Co., 285 Mo 654, 227 SW 106.
*New Mexico. O'Neal v. Geo. E.
Breece Lbr. Co., 38 NM 94, 28 P2d
523.
Oklahoma. Cosden Pipe Line Co.
v. Berry, 87 Okl 237, 210 P 141.
Oregon. Miami Quarry Co. v. Sea-
borg Packing Co., 103 Or 362, 204
P492.
South Dakota. Haines v. Waite,
61 SD 250, 248 NW 207.
Wisconsin. Ward v. Babcock, 162
Wis 539, 156 NW 1007.
SRudd v. Jackson (la), 207 NW
342,
4 Georgia. Elrod v. Chamblee, 26
GaApp 703, 106 SE 915,
Idaho. Smith v. Graham, 30 Ida-
ho 132, 164 P 354; Moreland v.
Mason, 45 Idaho 143, 260 P 1035.
Iowa. Rudd v. Jackson, 203 la
661, 213 NW 428.
Kansas. Minneapolis Steel &
Maeh. Co. v. Schalansky, 100 Kan
562, 165 P 289.
Massachusetts. Fisher v. Ford,
232 Mass 56, 121 NE 529.
Missouri. Gittings v. Jeffords, 292
Mo 678, 239 SW 84; Barnett v.
Smith (MoApp), 230 SW 681.
Oklahoma. Holmes v. Halstid, 76
Okl 31, 183 P 969.
Oregon. Fulp v. Brashears, 116
Or 538, 241 P 69.
Texas. First Nat. Bank v. Man-
gum (TexCivApp), 194 SW 647.
Washington. Bounds v. Galbraith,
117 Wash 225, 200 P 1082.
s Federal. Boston & M. R. Co. v.
Baker, 150 CCA 158, 236 F 896.
Indiana. Terre Haute, I. & E.
Trac. Co. v. Ellsbury, 74 IndApp
167, 123 NE 810.
Kentucky. Where there was
neither pleading nor proof that oper-
ating automobile at more than 20
miles per hour was prima facie un-
reasonable, it was not error to re-
fuse so to charge. Sharp v, Rawls,
234 Ky 438, 28 SW2d 493.
Missouri. Boles v. Dunham (Mo
App), 208 SW 480; Traw v. Heydt
(MoApp), 216 SW 1009; Chapman v.
Kansas City Rys. Co. (MoApp), 217
SW 623.
Oregon. Howland v. Fenner Mfg.
Co., 104 Or 373, 206 P 730, 207 P
1096.
Pennsylvania. Luks v. American
Ice Co., 267 Pa 337, 109 A 680.
Texas. Sherman Ice Co. v. Klein
(TexCivApp), 195 SW 918.
It is error to instruct on statutory
liability for killing cattle at crossing
where cattle were not killed at
crossing. Ft. Worth & D. C. Ry.
Co. v. Decatur Cotton Seed Oil Co.
(TexCivApp), 179 SW 1104.
6 Federal. Rode v. Gonterman, 41
F2d 1; Shell Petroleum Corp. v.
Scully, 71 F2d 772.
Arizona. Sisters of St. Joseph v.
Edwards, 45 Ariz 407, 44 P2d 155
337
PERTINENCY
115
personal injuries alleged to have been sustained at the hands of
a fellow servant, the court's refusal to charge with relation to
the matter of sudden emergency is not erroneous where no such
feature is presented by the declaration and there is nothing in
the case showing such emergency.7 In an action on contract it
has been held proper for the court to charge as to both express
and implied contract where the first petition alleged an express
agreement and an amended petition declared on an implied con-
tract.8 Where there is neither pleading nor evidence with respect
to contributory negligence, an instruction thereon is neither
required nor proper.9 In a case with several defendants an
instruction applicable to issues between the plaintiff and one
defendant should be given though it is not pertinent to the
pleadings or evidence as between the plaintiff and another
defendant. ! °
In some of the states the procedure is adopted that if the
parties to an action by mutual assent or acquiescence litigate
matters not made issues by the pleadings, the court may submit
such matters for decision of the jury as if they had been properly
pleaded. ' *
(submitting question of permanent
injury in automobile collision, when
there was neither pleading nor proof
thereof).
Florida. St. Petersburg & G. By.
Co. v. Van Smith, 71 Fla 64, 70 S
940.
Missouri. In Zoebel v. Tieman
Coal & Material Co., 337 Mo 561, 85
SW2d 519, there was no evidence or
claim for medical or hospital ex-
penses, yet the court instructed that
if the jury found for the plaintiff
they should allow nothing for such
items.
Oklahoma. Missouri, K. & T. Ry.
Co. v. Watkins, 77 Okl 270, 188 P
99.
Texas. Wichita Falls Trac. Co.
v. Elliott, 125 Tex 248, 81 SW2d 659.
Singer Sewing Mach. Co. v. Men-
doza (TexCivApp), 62 SW2d 656
(instruction as to alarm, fear, mental
and physical suffering, neither plead-
ed nor proved in an action for
damages for officer's unlawfully
breaking into house in service of
sequestration writ).
7 Fletcher v. Louisville & N. R.
Co., 102 Tenn 1, 49 SW 739.
* Dean's Exr. v. Griffin, 217 Ky
60S, 290- SW 483.
9Barnett v. Bull, 141 Wash 139,
250 P 955.
If the plaintiff dismisses his ac-
tion as to one of the defendants, it
is proper for the court to refuse a
request for instructions applicable
only to the defendant dismissed.
Norton v. Great Northern R. Co.,
78 Mont 278, 254 P 165.
10 Nance v. Lansdell (MoApp),
73 SW2d 346; Okmulgee Supply Co.
v. Rotman, 144 Okl 293, 291 P 1.
1 * Arizona. Salt River Valley
Water Users Assn. v. Berry, 31 Ariz
39, 250 P 356.
Georgia. Davis v. McDuffie, 35
GaApp 786, 134 SE 800.
Washington. So, where the de-
fendant gave in evidence matters
disclosing an affirmative defense
which was not pleaded in the answer,
an instruction was proper which
placed on the defendant the burden
of proof as to the affirmative de-
fense. Kane v. Lindsey, 143 Wash
61, 254 P 461.
§116
INSTRUCTIONS — RULES GOVERNING
338
§ 116. Pertinency of instructions in criminal prosecutions.
In criminal prosecutions, the instructions must be pertinent
to the facts charged in the indictment and shown by the evidence
admitted.
Instructions should not be given on issues which do not arise
in the case being tried12 or which are immaterial and unre-
lated thereto,13 even though they state correct propositions of
law.14
1 2 Federal. Hamburg - American
Steam Packet Co. v. United States,
163 CCA 79, 250 F 747; Bishop v.
United States, 16 F2d 406.
Alabama. Kuykendall v. State,
17 AlaApp 582, 87 S 878; Hall v.
State, 130 Ala 45, 30 S 422; Drink-
ard v. State, 26 AlaApp 475, 162
S 412.
California. People v. Carroll, 20
CalApp 41, 128 P 4; People v. North-
cott, 46 CalApp 706, 189 P 704;
People v. Allen, 138 Cal 652, 33 P2d
77.
Florida. Peeler v. State, 64 Fla
385, 59 S 899; Ward v. State, 75 Fla
756, 79 S 699; Bradley v. State, 82
Fla 108, 89 S 359.
Georgia. Lindsay v. State, 138
Ga 818, 76 SE 369; Phillips v. State,
149 Ga 255, 99 SE 874; Stanford v.
State, 153 Ga 219, 112 SE 130;
Hickox v. State, 26 GaApp 416, 107
SE 81 (larceny); Hillery v. State, 51
GaApp 373, 180 SE 499.
Illinois. People v. Davis, 269 111
256, 110 NE 9; People v. Miller, 278
111 490, 116 NE 131, LRA 1917E,
797; People v. Geary, 297 111 608,
131 NE 97; People v. Flanagan, 338
HI 353, 170 NE 265; People v, Buzan,
351 111 610, 184 NE 890.
Indiana. Kocher v. State, 189
Ind 578, 127 NE 3; Lindley v. State,
199 Ind 18, 154 NE 867.
An instruction only slightly perti-
nent to the evidence should be re-
fused. Rigsby v. State, 174 Ind 284,
91 NE 925.
Kansas. State v. Thompson, 119
Kan 743, 241 P 110.
Kentucky. Gamble v. Common-
wealth, 151 Ky 372, 151 SW 924;
Ratliif v. Commonwealth, 182 Ky
246, 206 SW 497; Jackson v. Com-
monwealth, 248 Ky 47, 58 SW2d 263.
Morgan v. Commonwealth, 172 Ky
684, 189 SW 943 (adultery not issue
in prosecution for carnal knowledge
of child); Cook v. Commonwealth,
240 Ky 766, 43 SW2d 1.
Louisiana. State v. McCall, 162
La 471, 110 S 723.
Missouri. State v. Richardson
(Mo), 228 SW 789.
Nebraska. Spaulding v. State, 61
Neb 289, 85 NW 80.
New Jersey. State v. Unger, 93
NJL 50, 107 A 270.
New Mexico. State v. Martinez,
30 NM 178, 230 P 379.
Oklahoma. Kirk v. Territory, 10
Okl 46, 60 P 797; Anderson v. State,
13 OklCr 264, 164 P 128; Johnson v.
State, 16 OklCr 428, 183 P 926;
Lady v. State, 18 OklCr 59, 192 P
699; Colby v. State, 57 OklCr 162,
46 P2d 377.
Rhode Island. State v. Saccoccio,
50 RI 356, 147 A 878.
Texas. Green v. State, 84 TexCr
162, 205 SW 988; Aycock v. State,
88 TexCr 238, 225 SW 1099; Irlbeck
v. State, 118 TexCr 5, 40 SW2d 124.
Utah. State v. Marasco, 81 Utah
325, 17 P2d 919.
Virginia. Lane v. Commonwealth,
122 Va 916, 95 SE 466; Hardyman
v. Commonwealth, 153 Va 954, 151
SE 286.
West Virginia. State v. Newman,
101 WVa 356, 132 SE 728.
Wyoming. James v. State, 27 Wyo
378, 196 P 1045.
1 3 Federal. Franklin v. United
States, 113 CCA 258, 193 F 334;
Lopez v. United States, 17 F2d 462.
Alabama. Miller v. State, 16 Ala
App 143, 75 S 819.
339
PERTINENCY
117
Thus on a trial for an illegal sale of liquor it was held im-
proper to instruct on a sale on prescription where there was
no issue as to a sale on prescription. ls It is error in a prosecu-
tion for the death of an infant, alleged to have been produced by
choking, to instruct as to a conviction for manslaughter if the
infant's death resulted from an abortion. ! 6 It is error to charge
as to carrying concealed weapons in a prosecution for assault
with intent to kill. 1 7
§ 117. Pertinency to pleadings in civil cases.
The purpose of instructions is to apply principles of law to
the issues, and this purpose is defeated and error is committed
by instructions which present issues not made by the pleadings.
It is error for the court to submit a case to the jury upon
issues not made by the pleadings.18 A very serious objection
to instructions affected with this vice is that they mislead the
jury.19 The issues made by the pleadings must not be broad-
Florida. Settles v. State, 75 Fla
296, 78 S 287; Milligan v. State, 75
Fla 815, 78 S 535.
Georgia. Garrett v. State, 21
GaApp 801, 95 SE 301.
Oklahoma. Teague v. State, 13
OklCr 270, 163 P 954.
Pennsylvania. Commonwealth v.
Brletic, 113 PaSuper 508, 173 A
686.
Washington. State v. Ewing, 6-7
Wash 395, 121 P 834.
West Virginia. State v. Clark, 51
WVa 457, 41 SE 204.
1 4 Alabama. Goodman v. State,
15 AlaApp 161, 72 S 687 (insanity).
California. People v. Cornell, 29
CalApp 430, 155 P 1026; People v.
Bracklis, 54 CalApp 40, 200 P 1062.
Illinois. People v. Williams, 240
111 633, 88 NE 1053; People v. Israel,
269 111 284, 109 NE 969; People v.
Gould, 345 111 288, 178 NE 133.
Kansas. State v. Lahore, 80 Kan
664, 103 P 106.
Louisiana. State v. Marsalise, 172
La 796, 135 S 361.
Missouri. State v. Yocum (Mo
App), 205 SW 232.
New Jersey. State v. Rombolo,
91 NJL 560, 103 A 203.
New Mexico. State v. Seville, 24
NM 549, 174 P 985.
New York. People v. Hassan, 196
AppDiv 89, 187 NYS 115.
Wisconsin. Pollack v. State, 215
Wis 200, 253 NW 560, 254 NW 471.
13 Edwards v. State (TexCr), 38
SW 779.
16 Bradley v. Commonwealth, 218
Ky 788, 292 SW 343.
1 7 State v. Cyty, 50 Nev 256, 256
P 793, 52 ALR 1015.
«« Federal Kennedy Lbr. Co. v.
Rickborn, 40 F2d 228.
Alabama. Sovereign Camp, W. 0.
W. v. Cox, 221 Ala 58, 127 S 847;
Bond Bros. v. Kay, 223 Ala 431, 136
S 817.
Georgia. Mitchell v. Gunter, 170
Ga 135, 152 SE 466.
Iowa. Redfern v. Redfern, 212 la
454, 236 NW 399.
Kentucky. Wilder v. Bailey, 233
Ky 238, 25 SW2d 381.
Missouri. Spears v. Carter, 224
Mo App 726, 24 SW2d 717; Benson
v. Smith (MoApp), 38 SW2d 749.
Montana. Bose v. Sullivan, 87
Mont 476, 288 P 614.
Ohio. Crisafi v. Kowalski, 70' OLA
581, 117 NE2d 465 (OCA, Cuyahoga
County) .
Pennsylvania. Srednick v. Sylak,
343 Pa 486, 23 A2d 333.
19 Arkansas. N. P. Sloan Co. v.
Barham, 138 Ark 350, 211 SW 381;
117
INSTRUCTIONS — RULES GOVERNING
340
ened,20 and this, of course, excludes consideration of abandoned
Sherrin v. Coffman, 143 Ark 8, 219
SW 348; Taylor v. Martin, 151 Ark
200, 235 SW 411.
Connecticut. Mills v. Roto Co.,
104 Com* 645, 133 A 913.
Illinois. Goddard Tool Co. v.
Crown Elec. Mfg. Co., 219 IllApp 34.
Missouri. Munoz v. American Car
& Foundry Co., 220 MoApp 902, 296
SW 228; Sooby v. Postal Tele-
graphic-Cable Co. (MoApp), 217 SW
877.
Montana. Robison v. Dover Lbr.
Co., 58 Mont 231, 191 P 383.
Oklahoma. Frick-Reid Supply Co.
v. Aggers, 28 Oki 425, 114 P 622.
20 Federal. Consolidated Lead &
Zinc Co. v. Corcoran, 37 F2d 296
(amount of recovery).
Alabama. Jones v. Union Foundry
Co., 171 Ala 225, 55 S 153.
California. Cooper v. Spring Val-
ley Water Co., 16 CalApp 17, 116 P
298; Conlin v. Southern Pacific R.
Co., 40 CalApp 733, 182 P 67; Reed
v. Wells, 102 CalApp 333, 282 P
997.
Colorado. Walsh v. Jackson, 33
Colo 454, 81 P 258.
Connecticut. Kornblau v. McDer-
mant, 90 Conn 624, 98 A 587; Hawes
v. Engler, 92 Conn 608, 103 A 975.
District of Columbia. Bowdler v.
Billings-Chapin Co., 47 AppDC 164.
Florida. Savannah, F. & W. Ry.
Co. v. Tiedeman, 39 Fla 196, 22 S
658; Collins v. Godwin, 65 Fla 283,
61 S 632.
Georgia. Sanders v. Southern Ry.
Co., 107 Ga 132, 32 SE 840; Grims-
ley v. Singletary, 133 Ga 56, 65 SE
92, 134 AmSt 196; Gaskins v. Gas-
kins, 145 Ga 806, 89 SE 1080; Dan-
iels v. Cagle, 180 Ga 853, 181 SE
178; Southern Ry. Co. v. Parham,
10 GaApp 531, 73 SE 763.
Illinois. W. W. Kimball Co. v.
Piper, 111 IllApp 82.
Indiana. Indianapolis Trac. &
Terminal Co. v. Mathews, 177 Ind
88, 97 NE 320; Indiana Union Trac.
Co. v. Downey, 177 Ind 599, 98 NE
634; Evansville Rys. Co. v. Cooksey,
63 IndApp 482, 112 NE 541.
Iowa. Vernon v. Iowa State
Traveling Mens Assn., 158 la 597,
138 NW 696; H. W. Emeny Auto
Co. v. Neiderhauser, 175 la 219, 157
NW 143; Conner v. Henry, 201 la
253, 207 NW 119; Granteer v.
Thompson, 203 la 127, 208 NW 497;
Balik v. Flacker, 212 la 1381, 238
NW 467.
Kansas. Douglas v. Wolf, 6 Kan
88; Lebanon State Bank v. Garber,
105 Kan 44, 181 P 572; Missouri Pa-
cific Ry. Co. v. Haggart, 9 KanApp
393, 58 P 796.
Kentucky. Mathis v. Bank of Tay-
lorsville, 136 Ky 634, 124 SW 876;
Minor v. Gordon, 171 Ky 790, 188
SW 768; Penn Furn. Co. v. RatlifT,
194 Ky 162, 238 SW 393; Knoxville
Tinware & Mfg. Co. v. Howard, 219
Ky 106, 292 SW 762; West v. But-
ler's Exr., 248 Ky 404, 58 SW2d 662;
Sehon, Blake & Stevenson v. Whitt,
28 KyL 1222, 29 KyL 691, 92 SW 280.
Maryland. J. E. Smith Co. v.
Smick, 119 Md 279, 86 A 500'.
Massachusetts. Lury v. New York,
N. H. & H. R., 205 Mass 540, 91 NE
1018; Krock v. Boston Elevated Ry.
Co., 214 Mass 398, 101 NE 968.
Minnesota. Pearson v. United
States Fidelity & Guaranty Co., 138
Minn 240, 164 NW 919.
The instructions may submit the
case to the jury on a narrower
ground of negligence than set out in
the complaint if consistent with the
complaint and the theory of plain-
tiff. Bannister v. George H. Hurd
Realty Co., 131 Minn 448, 155 NW
627.
Missouri. Kingman & Co. v. Cor-
nell-Tebbetts Mach. & Buggy Co.,
150 Mo 282, 51 SW 727; Degonia v.
St. Louis, I. M. & S. Ry. Co., 224
Mo 564, 123 SW 807; Satterlee v. St.
Louis-San Francisco Ry. Co., 336
Mo 943, 82 SW2d 69; Craton v.
Huntzinger, 163 MoApp 718, 147
SW 512; Stumpf v. United Rys. Co.
(MoApp), 227 SW 852; Counts v.
Thomas (MoApp), 63 SW2d 416;
Bennett v. National Union Fire Ins.
Co., 230 MoApp 939, 80 SW2d 914.
341
PERTINENCY
§117
or withdrawn issues,21 and matters which are no more than
conclusions of the pleader.22
The court must not change the
issues made by the pleadings. Sin-
namon v. Moore, 161 MoApp 168,
142 SW 494.
Montana. Davidson, v. Stagg, 94
Mont 272, 22 P2d 152.
Nebraska. Andresen v. Jetter, 76
Neb 520, 107 NW 789.
New Hampshire. Martel v. White
Mills, 79 NH 439, 111 A 237.
New Mexico. Bank of Commerce
v. Broyles, 16 NM 414, 120 P 670.
North Carolina. Roberts v. Bald-
win, 155 NC 276, 71 SE 319; Ed-
wards v. Cleveland Mill & Power
Co., 193 NC 780, 138 SE 131, 53
ALE 1404.
North Dakota. Schwabel v. First
Nat. Bank, 53 ND 904, 208 NW 236.
Ohio. St. Paul Fire & Marine Ins.
Co. v. Baltimore & 0. R. Co., 129
OhSt 401, 2 OhO 396, 195 NE 861
(instruction properly refused).
Oklahoma. Obenchain & Boyer v.
Roff, 29 Okl 211, 116 P 782; Cham-
bers v. Van Wagner, 32 Okl 774, 123
P 1117; Chicago, R. I. & P. Ry. Co.
v. Mailes, 52 Okl 278, 152 P 1131;
Sand Springs Ry. Co. v. Baldridge,
60 Okl 102, 159 P 487; Prest-0-Lite
Co. v. Howery, 169 Okl 408, 37 P2d
303.
Oregon. De War v. First Nat.
Bank, 88 Or 541, 171 P 1106.
South Carolina. Richey v. South-
ern Ry. Co., 69 SC 387, 48 SE 285;
Craig Milling Co. v. Cromer, 85 SC
350, 67 SE 289; Fanning v. Stroman,
113 SC 495, 101 SE 861.
Texas. International & G. N. R.
Co. v. Tisdale, 36 TexCivApp 174,
81 SW 347; Whitehead v. Reiger
(TexCivApp), 282 SW 651 (estoppel
not pleaded makes instruction there-
on inappropriate); Southland Life
Ins. Co. v. Norwood (TexCivApp),
76 SW2d 166.
Utah. Larson v. Calder's Park Co.,
54 Utah 325, 180 P 599, 4 ALR 731.
Vermont. Dodge Bros. v. Central
Vermont Ry. Co., 92 Vt 454, 104 A
873.
Virginia. The fact that a plea
which presents no defense is not
met with objection or demurrer, but
issue is taken thereto does not re-
quire the court to instruct thereon.
Newman v. McComb, 112 Va 408, 71
SE 624.
Washington. In a suit for serv-
ices, where there was no claim in
the pleadings for recovery on a con-
tingent basis, but testimony was ad-
mitted raising that question, it was
held error to refuse to instruct that
there was no question of a contin-
gent fee before the jury. Miller v.
Puget Sound Bridge & Dredging
Co., 140 Wash 663, 250 P 64.
Wisconsin. Haueter v. Marty, 150
Wis 490, 137 NW 761.
21 Alabama. Southern Ry. Co. v.
Bynum, 194 Ala 190, 69 S 820;
Macher v. Farmers* & Ginners' Cot-
ton Oil Co., 203 Ala 601, 84 S 845;
American Ry. Exp. Co. v. Compton,
205 Ala 298, 87 S 810.
No reference should be made to is-
sues taken out by demurrer. Fike v.
Stratton, 174 Ala 541, 56 S 929.
Georgia. Brinson R. Co. v. Green,
20 GaApp 397, 93 SE 38. »
Illinois. Reeb v. Bronson, 196 111
App 518.
Indiana. Smith v. Farr, 88 Ind
App 237, 157 NE 111, reh. den. in
158 NE 492.
Kansas. Cobe' v. Coughlin Hdw.
Co., 83 Kan 522, 112 P 115, 31 LRA
(N. S.) 1126.
Missouri. Phillips v. East St.
Louis & S. Ry. Co. (Mo), 226 SW
863; Miller v. Schaff (Mo), 228 SW
488; Unterlachner v. Wells (Mo),
278 SW 79.
Nebraska. Gray v. Chicago, St. P.,
M. & 0. R. Co., 90 Neb 795, 134 NW
961.
North Dakota. Gunther v. Baker,
48 ND 1071, 188 NW 575.
Ohio. Liberty Highway Co. v.
Mastin, 34 OhApp 183, 170 NE 604.
22 Andrew v. Oregon- Washington
R. & Nav. Co., 90 Or 611, 178 P 181.
§11?
INSTRUCTIONS — RULES GOVERNING
342
In many jurisdictions, the issues made by the pleadings
must not be changed by the instructions whatever the scope
of the evidence,23 although in some states, the court should
charge on an issue if there is evidence on the issue in the
case.24
Illustrations of pertinency or lack of pertinency to pleadings
follow.
Negligence. Where negligence is the subject of the action,
the instructions must confine the verdict to the grounds of
negligence alleged,23 and wilful and reckless negligence should
23 Federal. Himrod v. Ft. Pitt
Min. & Milling: Co., 151 CCA 596,
238 F 746.
California. Stuart v. Preston (Cal
App), 39 P2d 441, denying reh. of
2 CaiApp2d 310, 38 P2d 155.
Iowa. Dimond v. Peace River Land
& Dev. Co., 182 la 400, 165 NW
1032.
Kentucky. Moran v. Choate, 253
Ky 470, 69 SW2d 994; Prudential
Ins. Co. v. Bond, 257 Ky 45, 77 SW
2d 373.
Missouri. McKenzie v. Randolph
(Mo App), 238 SW 828; First Nat.
Bank v. Hoover (MoApp), 242 SW
107.
Oregon. Mayer <& Co. v. Smith,
112 Or 559, 230 P 355.
Wisconsin. But see Rule v. J. L.
Gates Land Co.; 121 Wis 544, 99 NW
333, holding that the pleadings may
be deemed amended to conform to
proof received without objection.
24Centrello v. Basky, 164 OhSt
41, 57 OhO 77, 128 NE2d 80.
25 Federal. Grand-Morgan Theater
Co. v. Kearney, 40 F2d 235.
Alabama. Alabama City, G. & A.
Ry. Co. v. Bessiere, 197 Ala 5, 72 S
325.
California. Brisbin v. Wise Co., 6
CalApp2d 441, 44 P2d 622 (instruc-
tion properly refused).
Colorado. Hunter v. Quaintance,
69 Colo 28, 168 P 918.
Georgia. Davis v. Southern. Ry.
Co., 18 GaApp 134, 88 SE 919.
Illinois. Garvey v. Chicago Rys.
Co., 339 111 276, 171 NE 271; Wil-
liams v. Mt. Vernon Car Mfg. Co.,
197 IllApp 271.
Indiana. Emerson - Brantingham
Co. v. Growe, 191 Ind 564, 133 NE
919; Indianapolis & C. Trac. Co. v.
Sherry, 65 IndApp 1, 116 NE 594;
United Tel. Co. v. Barva, 76 IndApp
145, 131 NE 794.
Kansas. Angell v. Chicago, R. I.
& P. Ry. Co., 97 Kan 688, 156 P 763.
Kentucky. Powell v. Louisville &
N. R. Co., 172 Ky 285, 189 SW 213;
Wells v. Cumberland Tel. & T. Co.,
178 Ky 261, 198 SW 721; Nash v.
Searcy, 256 Ky 234, 75 SW2d 1052.
In a damage action against opera-
tor of toll bridge based on a claim
that the injury was caused through
failure to light the bridge, it was
reversible error to instruct that it
was the duty of the operator "to use
ordinary care to protect vehicular
traffic using said bridge at night-
time, by giving such notice, by the
use of lights or other means as was
reasonably sufficient to give timely
warning to the traveling public of
the presence of said timber guard
referred to," since the words "or
other means" submitted a question
not within the issues of the plead-
ings. Louisville & N. R. Co. v.
Loesch, 215 Ky 452, 284 SW 1097,
47 ALR 347.
Minnesota. Falk v. Chicago & N.
W. Ry. Co., 133 Minn 41, 157 NW
904; Baer v. Chowning, 135 Minn
453, 161 NW 144.
Mississippi. Hines v. McCullers,
121 Miss 666, 83 S 734.
Missouri. Richardson v. Kansas
City Rys. Co., 288 Mo 258, 231 SW
938; Talbert v. Chicago, R. I. & P.
Ry. Co., 314 Mo 352, 284 SW 499;
343
PERTINENCY
§117
not be charged unless pleaded.26 Neither should the court
ordinarily submit the question of mere negligence where that
issue is not involved, but the issue is gross or wilful negligence.27
Among other matters which may not be submitted to the
jury unless pleaded are contributory negligence,28 comparative
Crone v. United Rys. Co. (Mo), 236
SW 654; Priebe v. Crandall (Mo
App), 187 SW 605; Witham v. Lusk
(MoApp), 190 SW 403; Oliver v. St.
Louis-San Francisco Ry. Co. (Mo
App), 211 SW 699; Walling: v. Mis-
souri Stair Co. (Mo App), 227 SW
879; Peters v. Enderle Drug Co. (Mo
App), 294 SW 740.
Where cause of action was based
on claim of injury from sagging elec-
tric wire caused by storm, an in-
struction which did not confine the
jury to a consideration of that as
the sole basis of liability as pleaded
by the plaintiff was erroneous.
Kessler v. West Missouri Power Co.,
221 MoApp 644, 283 SW 705.
Nebraska. Shick v. Johnson, 101
Neb 328, 163 NW 300.
Oregon. Pickett v. Gray, McLean
& Percy, 147 Or 330, 31 P2d 652.
Texas. Lancaster v. Tudor (Tex
CivApp), 222 SW 990; Texas Gen-
eral Utilities Co. v. Nixon (TexCiv
App), 81 SW2d 250.
Vermont. Bucklin v. Narkwich,
107 Vt 168, 177 A 198.
Washington. Bleitz v. Bryant Lbr.
Co., 110 Wash 437, 188 P 509; Kerr
v. Hansen, 140 Wash 459, 249 P 977;
Cleasby v. Taylor, 176 Wash 251, 28
P2d 795.
26 Morenci Southern Ry. Co. v.
Monsour, 21 Ariz 148, 185 P 938;
Moseley v. Carolina, C. & O. Ry. Co.,
106 SC 368, 91 SE 380.
27 Alabama. Southern Ry. Co. v.
Fricks, 196 Ala 61, 71 S 701.
California. Tognazzini v. Free-
man, 18 CalApp 468, 123 P 540.
Maryland. Darby Candy Co. v.
Hoffberger, 111 Md 84, 73 A 565.
Massachusetts. Stager v. G. E.
Lothrop Theatres Co., 291 Mass 464,
197 NE 86.
Missouri. Plate v. Ludlow-Saylor
Wire Co. (MoApp), 227 SW 899.
Wisconsin. Turtenwald v. Wiscon-
sin Lakes Ice & Cartage Co., 121
Wis 65, 98 NW 948.
28 Federal. Cavoretto v. Alaska
Gastineau Min. Co., 158 CCA 193,
245 F 853.
Alabama. Birmingham Ry., Light
& Power Co. v. Fisher, 173 Ala 623,
55 S 995; Seaboard Air Line Ry. Co.
v. Pemberton, 202 Ala 55, 79 S 393;
Birmingham Ry., Light & Power Co.
v. Demmins, 3 AlaApp 359, 57 S
404; Centennial Ice Co. v. Mitchell,
215 Ala 688, 112 S 239.
Arizona. Southwest Cotton Co. v.
Ryan, 22 Ariz 520, 199 P 124.
Arkansas. Western Union Tel. Co.
v. Wilson, 97 Ark 198, 133 SW 845.
California. Hall v. San Francisco,
188 Cal 641, 206 P 459.
Georgia. Southern Ry. Co. v.
Weatherby, 20 GaApp 399, 93 SE
31.
Kentucky. Smith v. Paducah Trac.
Co., 179 Ky 322, 200 SW 460-; War-
field Natural Gas Co. v. Hall, 254
Ky 805, 72 SW2d 417.
Missouri. Aronovitz v. Arky
(Mo), 219 SW 620; Heriford v. Kan-
sas City Rys. Co. (Mo), 220 SW 899;
Looff v. Kansas City Rys. Co. (Mo),
246 SW 578; Seneker v. Lusk (Mo
App), 190 SW 96; Dignum v.
Weaver (MoApp), 204 SW 566;
Lester v. United Rys. Co. (MoApp),
219 SW 666; Beckner v. Kansas City
Rys. Co. (MoApp), 232 SW 745;
O'Sullivan v. Kansas City Rys. Co.
(MoApp), 237 SW 843; Gavin v. For-
rest, 230 MoApp 662, 72 SW2d 177.
Ohio. Where evidence is admitted
tending to show contributory negli-
gence, the court should charge on
the question of contributory negli-
gence though not raised by the
pleadings. Glass v. William Heffron
Co., 86 OhSt 70, 98 NE 923. See
also Cincinnati Trac. Co. v. Forrest,
§117
INSTRUCTIONS — RULES GOVERNING
344
negligence,29 assumption of risk,30 imputed negligence of infant
guest injured through claimed negligence of driver,3' unavoid-
able accident,32 the doctrine of last clear chance,33 contributory
negligence where action submitted solely on humanitarian doc-
trine,34 accident where the cause of injury was alleged negli-
gence,35 doctrine of res ipsa loquitur,36 safety of machinery
73 OhSt 1, 75 NE 818; Cincinnati
Trac. Co, v. Stephens, 75 OhSt 171,
79 NE 235; Behm v. Cincinnati, D.
& T. Trac. Co., 86 OhSt 209, 99 NE
383; Kayland Coal Co. v. McFadden,
90 OhSt 183, 107 NE 330; Woolley v.
Cincinnati, H. & D. R. Co., 90 OhSt
387, 108 NE 1135; Gibbs v. Scioto
Valley Ry. & Power Co., Ill OhSt
498, 145 NE 854; Bradley v. Cleve-
land Ry. Co., 112 OhSt 35, 146 NE
805; Cincinnati Trac. Co. v. Young,
115 OhSt 160, 152 NE 666.
Oregon. Adams v. Portland Ry.,
Light & Power Co., 87 Or 602, 171 P
219, LRA 1918D, 526; Smith v. La-
flar, 143 Or 65, 20 P2d 391.
Pennsylvania. Goodstein v. King,
298 Pa 313, 148 A 300.
Texas. San Antonio & A. P. Ry.
Co. v. Littleton (TexCivApp), 180
SW 1194; North Texas Gas Co. v.
Meador (TexCivApp), 182 SW 708;
El Paso Elec. Ry. Co. v. Terrazas
(TexCivApp), 208 SW 387; North-
ern Texas Trac. Co. v. Martin (Tex
CivApp), 224 SW 319.
Washington. Bruenn v. North Yak-
ima School Dist. No. 7, 101 Wash
374, 172 P 569.
Wisconsin. Contra: Jones v. She-
boygan & F. du L. R. Co., 42 Wis
306; McQuade v. Chicago & N. W.
Ry. Co., 68 Wis 616, 32 NW 633;
Harper v. Holcomb, 146 Wis 183, 130
NW 1128.
29 Rome v. Phillips, 37 GaApp
299, 139 SE 828.
30 Federal. Montgomery Ward &
Co. v. Hammer, 38 F2d 636.
Florida. Atlantic Coast Line R.
Co. v. Shouse, 83 Fla 156, 91 S 90.
Illinois. Pennsylvania R. Co. v.
Gavin, 234 IllApp 28.
Iowa. Duffey v. Consolidated Block
Coal Co., 147 la 225, 124 NW 609, 30
LRA (N. S.) 1067; Powers v. Iowa
Glue Co., 183 la 1082, 168 NW 326.
South Carolina. Hopkinson v. Ma-
son & Hanger Contracting Co., 114
SC 297, 103 SE 534.
Texas. Lewis v. Texas & P. Ry.
Co., 57 TexCivApp 585, 122 SW 605;
Kirby Lbr. Co. v. Bratcher (TexCiv
App), 191 SW 700; Panhandle & S.
F. Ry. Co. v. Kornegay (TexCiv
App), 206 SW 708; Texas & Pacific
Coal Co. v. Ervin (TexCivApp), 212
SW 234.
31 Ross v. Willamette Valley
Transfer Co., 119 Or 395, 248 P
1088.
32 Evans v. Kent, 28 GaApp 172,
110 SE 685; Wilson v. Elkins, 86
WVa 379, 103 SE 118.
33 Indiana. Lake Erie & W. R.
Co. v. Sanders, 72 IndApp 283, 125
NE 793.
Missouri. Knapp v. Dunham (Mo
App), 195 SW 1062.
Ohio. Harris v. Mansfield Ry.,
Light & Power Co., 4 OhApp 108,
21 OhCirCt (N. S.) 209, 26 OhCir
Dec 17; Toledo Ry. & Light Co. v.
Poland, 7 OhApp 397, 27 OhCirApp
105, 28 OhCirDec 198; Steinman v.
Cleveland Ry. Co., 23 OhApp 448,
155 NE 149.
It is not error to charge as to the
doctrine of last clear chance if the
evidence makes out a case for such
doctrine though the issue is not spe-
cifically raised by the pleadings.
Ohio Elec. Ry. v. Burkham, 7 Oh
App 434, 27 OhCirApp 366, 29 Oh
CirDec 176.
34 Steger v. Meehan (Mo), 63 SW
2d 109.
35 Brewer v. Silverstein (Mo), 64
SW2d 289.
36Arnall Mills v. Smallwood, 68
F2d 57.
345 PERTINENCY § 117
for servant where theory of action is unsafe premises.37 So
where, in a suit for personal injuries, an instruction is based
upon the question whether the plaintiff and other workmen used
a certain passageway, and this question is not in issue in the
case, it is rightly refused.38
Fraud. Fraud may not be submitted to the jury where con-
version is pleaded.39 So also an instruction was held erroneous
where it had the effect of advising the jury that if the defend-
ant should establish, by a preponderance of the evidence, fraud
in either one of two sales, he should be entitled to recover, and
upon the trial no evidence was given questioning the good faith
of one of these transactions.40 It is error to instruct on mis-
representations in the execution and delivery of a note in the
absence of all allegations in the answer of fraudulent representa-
tions.4 f
Defenses. It is improper to instruct on an affirmative de-
fense where the defendant's answer consists of only a general
denial.42 If the statute of limitations is not pleaded, it is not
proper to instruct on limitations.43 The same prohibition applies
to the statute of frauds,44 or duress,45 or qualified privilege
in an action for libel.46 Where a charitable institution sued for
tort did not allege its immunity in its answer, it was not error
for the court to fail to instruct on such immunity from liability.47
Contracts. Matters which may not be submitted to the jury
unless pleaded are implied contract where the action is on express
contract,48 implied warranty where the action is on express
warranty,49 or breach of warranty where conversion is pleaded.50
37 National Motor Vehicle Co. v. 44 Gambo v. F. M. Dugas & Son,
Pake, 60 IndApp 366, 109 NE 787. 145 Ga 614, 89 SE 679. Contra:
38 Dolphin v. Plumley, 175 Mass Lang-ley v. Sanborn, 135 Wis 178,
304, 56 NE 281. 114 NW 787.
39Platt v. Walker, 69 Colo 584, 4S Grimes Sav. Bank v. McHarg,
196 P 190; Pierce v. Barks, 60 Okl 197 la 1393, 199 NW 365.
97, 159 P 323. 46Hickman v. Nelson (MoApp),
40 Williams v. McConaughey, 58 211 SW 131.
Neb 656, 79 NW 549. 47 Bunnell v. Waterbury Hosp.,
4 1 California. California Credit & 103 Conn 520, 131 A 501.
Collection Corp. v. Brandlin, 75 Cal 4S Cable Co. v. Shelby, 203 Ala
App 609, 243 P 41. 28, 81 S 818; Moore v. Mansfield
Kentucky. Brenard Mfg. Co. v. (MoApp), 61 SW2d 415.
Raffel, 214 Ky 604, 283 SW 964. 49 Whitlock Printing & Press Mfg.
Massachusetts. See Beatty v. Am- Co. v. Williams, 23 GaApp 761, 99 SE
midon, 260 Mass 566, 157 NE 702. 312.
42 State ex rel. Blick v. Mueller 5OPlatt v. Walker, 69 Colo 584,
(MoApp), 278 SW 1094. 196 P 190; Pierce v. Barks, 60 Okl
43 Mosely v. Verner, 215 Ala 420, 97, 159 P 323.
110 S 895.
§117
INSTRUCTIONS — RULES GOVERNING
346
Damages. Items of damages51 and aggravation of damages52
should not be included in instructions if not pleaded. If no claim
be made in the petition for an allowance of damages for mental
anguish, it is error to charge the jury as to the allowance of
such damages.53 Allegations of a promise to pay the actual cost
of replacing a foundation do not justify an instruction as to
reasonable cost.64
Miscellaneous. In an action for nuisance counting on un-
necessary noises, it is error to instruct on the right to recover
for unusual noises.55
Among other matters which may not be submitted to the
jury unless pleaded are estoppel,56 foreign law,57 or quantum
meruit.58
81 Federal. Guerini Stone Co. v.
P. J. Carlin Constr. Co., 240 US 264,
60 LEd 636, 36 SupCt 300.
Hawaii. Chin Kee v. Kaeleku
Sugar Co., Ltd., 29 Hawaii 524.
Illinois. Metcalf v. Chicago San-
doval Coal Co., 211 IllApp 31; Little
v. Peoria R. Co., 215 IllApp 385
(permanent injuries).
Indiana. Baker v. Leimgruber, 86
IndApp 324, 157 NE 444. But see
Haskell & Barker Car Co. v. Trzop
(IndApp), 123 NE 182.
Iowa. King v. Chicago, R. I. & P.
Ry. Co., 185 la 1227, 172 NW 268;
Smith v. Standard Oil Co., 218 la
709, 255 NW 674.
Kentucky. Warren v. Cumberland
R. Co., 175 Ky 92, 193 SW 1037
(permanent injuries); Elkhorn <& B.
V. Ry. Co. v. Martin, 195 Ky 20, 241
SW 344; Dowdy v. McGuire, 216 Ky
374, 287 SW 948; Damron v. Stewart
& Weir, 253 Ky 394, 69 SW2d 685.
Michigan. Kitchen v. Hill, 215
Mich 668, 184 NW 465 (loss of prof-
it under contract).
Missouri. Abernathy v. Lusk (Mo
App), 182 SW 1049 (consideration of
party's condition in life) ; Bond v.
Sedalia (MoApp), 194 SW 740;
Chapman v. American Creosoting
Co., 220 MoApp 419, 286 SW 837;
Long v. Freeman, 228 MoApp 1002,
69 SW2d 973; Bohling v. Richardson
(MoApp), 78 SW2d 495.
South Dakota. Fletcher v. South
Dakota Cent. Ry. Co., 36 SD 401,
155 NW 3.
Texas. St. Louis S. W. Ry. Co. v.
Kerr (TexCivApp), 184 SW 1058 (in-
herent vice of animals); North
American Ace. Ins. Co. v. Miller
(TexCivApp), 193 SW 750 (instruc-
tion on partial disability where total
disability pleaded) ; Walker v. Kellar
(TexCivApp), 218 SW 792; Houston
Oil Co. v. Wilson (TexCivApp), 70
SW2d 285 (mental anguish not
pleaded) .
Virginia. Altavista Cotton Mills v.
Lane, 133 Va 1, 112 SE 637.
Washington. Davis v. Thurston
County, 119 Wash 414, 205 P 840
(profits on contract).
52 Baker v. Sparks (TexCivApp),
234 SW 1109.
53 Chicago, I. & L. Ry. Co. v.
Blankenship, 85 IndApp 332, 154 NE
44.
54 Ben Schaefer Bldg. Co. v. Gra-
nada Gardens, 43 OhApp 527, 183
NE 882.
55 Passons v. Missouri, K. & T.
Ry. Co. (TexCivApp), 137 SW 435.
5 e Indiana. Prudential Ins. Co. v.
Smith, 90 IndApp 355, 168 NE 864.
Kentucky. Fort v. Wiser, 179 Ky
706, 201 SW 7; O'Kain v. Davis, 186
Ky 184, 216 SW 354.
Montana. Dalke v. Pancoast, 63
Mont 524, 208 P 589.
Texas. Bankers Trust Co. v.
Cooper, Merrill & Lumpkin (TexCiv
App), 179 SW 541.
57 Boyer v. North End Drayage
Co. (MoApp), 67 SW2d 769; Lutton
v. Mt. Ida School, 44 OhApp 322, 37
OLR 579, 185 NE 429.
S8Dupuy v. Shilling (TexCiv
347
PERTINENCY
118
§ 118. Pertinency to averments In indictment.
In criminal prosecutions, the court may not instruct on any
other crime than that charged in the indictment.
Not only may the judge not instruct on any other crime
than that charged in the indictment,59 but neither should he
instruct as to counts withdrawn or those to which a nolle
prosequi had been entered60 or on a count barred by limitation.6 f
Under this general rule it is erroneous to charge on the
subject of larceny where the defendant is indicted for embezzle-
ment62 or burglary.63 An instruction as to knowingly receiving
stolen property should not be given in a prosecution for grand
larceny.64 And so in a prosecution under counts for burglary
and grand larceny an instruction should be refused which applies
only to the offense of larceny.68
App), 298 SW 934. But see Dela-
plaine v. Turnley, 44 Wis 31; Lemke
v. Daegling, 52 Wis 498, 9 NW 399;
Manning v. School Dist. No. 6, 124
Wis 84, 102 NW 356.
S9 Federal. Sinclair v. United
States, 49 AppDC 351, 265 F 991.
Alabama. Drinkard v. State, 26
AlaApp 475, 162 S 412.
Arkansas. Johnson v. State, 132
Ark 128, 200 SW 982,
California. People v. Mulkey, 65
Cal 501, 4 P 507.
Idaho. State v. Griffith, 55 Idaho
60, 37 P2d 402; State v. Cox, 55
Idaho 694, 46 P2d 1093.
Kansas. State v. Hobl, 108 Kan
261, 194 P 921.
Kentucky. Bynum v. Common-
wealth, 248 Ky 564, 59 SW2d 550
(saying that court in charging the
jury should follow the language of
the indictment substantially).
Missouri. State v. Eobb, 90 Mo
30, 2 SW 1; State v. McLaughlin,
149 Mo 19, 50 SW 315; State v.
Ballew (MoApp), 56 SW2d 827.
Where the state's evidence shows
the actual commission of a crime
there is no error in refusing a re-
quested instruction on the subject
of an attempt to commit the same
crime. State v. Sykes, 248 Mo 708,
154 SW 1130.
Nebraska. Bundy v. State, 114
Neb 121, 206 NW 21.
Oklahoma. Martin v. State, 48
OklCr 102, 289 P 787.
It is only where the testimony
given by the defendant presents
issues upon which he might be ac-
quitted or upon which the offense
might be reduced to a lower degree,
that he is entitled to have the jury
instructed upon the hypothesis that
such testimony is true. Holmes v.
State, 6 OklCr 541, 119 P 430, 120
P 300.
Texas. Coney v. State, 43 Tex
414; Bacchus v. State, 18 TexApp
15; Miller v. State, 81 TexCr 237,
195 SW 192; Cannon v. State, 83
TexCr 154, 202 SW 83; Hall v.
State, 115 TexCr 548, 27 SW2d 187.
Where an information is insuf-
ficient to charge the offense intend-
ed, though it sufficiently charges a
lesser included offense, a charge
which permits a conviction of the
higher offense is reversible error,
when the record leaves it uncertain
of which offense the defendant is
guilty. Lomax v. State, 38 TexCr
318, 43 SW 92.
60 Oakley v. State, 135 Ala 29, 33
S 693
e< State v. Wolfe, 61 SB 195, 247
NW 407.
e2 Willis v. State, 134 Ala 429, 33
S 226.
63 Ewing v. State, 190- Ind 565, 131
NE 43.
64 Eaton v. Commonwealth, 235
Ky 466, 31 SW2d 718.
68 Rose v. State, 117 Ala 77, 23
S 638.
§119
INSTRUCTIONS — RULES GOVERNING
348
The issue of insanity should be raised by plea to justify in-
structions on that defense.66
§ 119. Pertinency to evidence admitted in civil cases.
Instructions should be based on the evidence adduced and
where not so predicated, should not be given.
An instruction should cover those and only those issues
made by the pleadings that have been developed by the proof.67
66 Matthews v. State, 16 AlaApp
514, 79 S 507. See also Taylor v.
State, 88 TexCr 470, 227 SW 679.
67 Federal. Moses & Sons v.
Lockwood, 54 AppDC 115, 295 F
936, 33 ALR 1467; Nocatee Fruit
Co. v. Fosgate, 12 F2d 250, affg.
299 F 963, 3 F2d 606.
Alabama. Wadsworth v. Dunnam,
117 Ala 661, 23 S 699; Phillips v.
Bradshaw, 167 Ala 199, 52 S 662.
Arizona. Grant Bros. Constr. Co.
v. United States, 13 Ariz 388, 114
P 955.
Arkansas. Snapp v. Stanwood, 65
Ark 222, 45 SW 546; Doniphan Lbr.
Co. v. Fix, 95 Ark 623, 129 SW 287.
California. Jones v. Goldtree
Bros. Co., 142 Cal 383, 77 P 939.
Colorado. Denver & R. G. R. Co.
v. Spencer, 25 Colo 9, 52 P 211; Den-
ver City Tramway Co. v. Hills, 50
Colo 328, 116 P 125, 36 LRA (N. S.)
213; Alley v. Tovey, 78 Colo 532,
242 P 999.
Connecticut. Griswold v. Guilf ord,
75 Conn 192, 52 A 742.
District of Columbia. Washing-
ton, A. & Mt. V. R. Co. v. Lukens,
32 AppDC 442.
Florida. Volusia County Bank v.
Bertola, 44 Fla 734, 33 S 448; Sea-
board Air Line Ry. v. Royal Palm
Soap Co., 80 Fla 800, 86 S 835.
Georgia. Inman & Co. v. Craw-
ford & Maxwell, 116 Ga 63, 42 SE
473; Heard v. Coggins, 134 Ga 52,
67 SE 429; Bateman v. Cherokee
Fertilizer Co., 21 GaApp 158, 93 SE
1021.
Idaho. Gwin v. Gwin, 5 Idaho 271,
48 P 295.
Illinois. West Chicago Street R.
Co. v. Petters, 196 HI 298, 63 NE
662; Randall Dairy Co. v. Pevely
Dairy Co., 278 IllApp 350.
Indiana. Eggleston v. Castle, 42
Ind 531.
Iowa. Sylvester v. Casey, 110 la
256, 81 NW 455; Enslow & Son v.
Ennis, 155 la 266, 135 NW 1105;
Thompson v. Chicago & N. W. Ry.
Co., 158 la 235, 139 NW 557.
Kansas. Dowell v. Williams, 33
Kan 319, 6 P 600'.
Kentucky. Simpson v. Simpson,
145 Ky 45, 139 SW 1100.
Where the evidence conclusively
showed that a trespasser on a rail-
road track saw an approaching train
in time to leave the track in safety,
it was error to submit the question
of the negligence of defendant in
failing to ring the bell or blow the
whistle. Chesapeake & O. Ry. Co.
v. Montjoy's Admr., 148 Ky 279,
146 SW 371.
Maine. Braley v. Powers, 92 Me
203, 42 A 362.
Maryland. Jones v. Collins, 94
Md 403, 51 A 398; Doyle v. Gibson,
119 Md 36, 85 A 961; Philadelphia,
B. & W. R. Co. v. Baltimore, 131
Md 368, 102 A 471; Johnston v.
Schmidt, 158 Md 555, 149 A 283.
Massachusetts. Dale v. Harris,
109 Mass 193; Marcy v. Shelburae
Falls & C. Street Ry. Co., 210 Mass
197, 96 NE 130.
Michigan. Johnson v. McKee, 27
Mich 471; Wendt v. Richmond, 164
Mich 173, 129 NW 38.
Minnesota. Mclnnis v. National
Casualty Co., 113 Minn 156, 129 NW
125, 388.
Mississippi. Burnley v. Mullins,
86 Miss 441, 38 S 635; Mayor &
Board of Hickory v. Semmes, 123
349
PERTINENCY
§119
The tendency of instructions not so grounded is to confuse and
mislead the jury.68
Miss 436, 86 S 273; Alabama & V.
Ky. Co. v. Baldwin, 96 Miss 52, 52
S 358.
Missouri. Chouteau v. Searcy, 8
Mo 733; Dillon v. Weinberg, 214 Mo
App 223, 260 SW 809.
Montana. Bullard v. Smith, 28
Mont 387, 72 P 761; Mason v. North-
ern Pacific Ry. Co., 45 Mont 474,
124 P 271; Frost v. J. B. Long &
Co., 71 Mont 141, 228 P 75; Farnuni
v. Montana-Dakota Power Co., 99
Mont 217, 43 P2d 640.
Nebraska. Cardwell v. State, 60
Neb 480, 83 NW 665; Wallenburg
v. Missouri Pacific Ry. Co., 86 Neb
642, 126 NW 289, 37 LRA (N. S.)
135.
New Hampshire. Hersey v.
Hutchins, 70 NH 130, 46 A 33;
Johnson v. Director General of Rail-
roads, 81 NH 289, 125 A 147; Lind-
berg v. Swenson, 95 NH 184, 60 A2d
458.
New Jersey. Consolidated Trac.
Co. v. Haight, 59 NJL 577, 37 A
135; Cottrell v. Fountain, 80 NJL 1,
77 A 465; Schweers v. Elizabeth-
Union-Hills ide-Irvington Line, 13
NJMisc 188, 178 A 68.
New Mexico. Cowles v. Hager-
man, 15 NM 600, 110 P 843.
New York. Gilbertson v. Forty-
Second Street, M. & St. N. Ave. Ry.
Co., 14 AppDiv 294, 43 NTS 782.
North Carolina. Hinson v. Postal
Tel. Cable Co., 132 NC 460, 43 SE
945; Grace & Co. v. Strickland, 188
NC 369, 124 SE 856, 35 ALR 1296.
North Dakota. Foster v. Dwire,
51 ND 581, 199 NW 1017, 51 ALR
21.
Ohio. Pennsylvania R. Co. v. Hart,
101 OhSt 196, 128 NE 142; Mans-
field Public Utility & Service Co. v.
Grogg, 103 OhSt 301, 133 NE 481;
Astrup Co. v. Rehburg, 42 OhApp
126, 181 NE 551, 36 OLR 405;
Mougey v. Becker, 49 OhApp 521, 3
OhO 376, 197 NE 388.
Oklahoma. Bouquot v. Awad, 54
Okl 55, 153 P 1104.
Oregon, Morris v. Perkins, 6 Or
350.
Pennsylvania. Brooks v. Pennsyl-
vania R. Co., 2 PaSuper 581.
Rhode Island. Guckian v. New-
bold, 22 RI 279, 47 A 543; Hobin v.
Hobin, 33 RI 249, 80 A 595.
South Dakota. Haggarty v. Strong,
10 SD 585, 74 NW 1037; Quacken-
bush v. Graf, 37 SD 385, 158 NW
409.
Tennessee. Louisville & N. R.
Co. v. Ray, 101 Tenn 1, 46 SW 554.
Utah. Fritz v. Western Union
Tel. Co., 25 Utah 263, 71 P 209;
Sargent v. Union Fuel Co., 37 Utah
392, 108 P 928.
Vermont, Birney v. Martin, 3 Vt
236; Jenness v. Simpson, 84 Vt 127,
78 A 886; Lang v. Clark, 85 Vt
222, 81 A 625.
Virginia. Richmond City Ry. Co.
v. Scott, 86 Va 902, 11 SE 404.
Washington. Towle v. Stimson
Mill Co., 33 Wash 305, 74 P 471;
Brydges v. Cunningham, 69 Wash
8, 124 P 131; Nagel v. McDermott,
138 Wash 536, 244 P 977.
West Virginia. Campbell v.
Hughes, 12 WVa 183; Brogan v.
Union Trac. Co., 76 WVa 698, 86
SE 753.
Wisconsin. Eggett v. AJlen, 106
Wis 633, 82 NW 556; Bruno v.
State, 165 Wis 377, 162 NW 167.
68 Federal. Stewart & Co. v.
Newby, 266 F 287.
Illinois. Schlauder v. Chicago &
Southern Trac. Co., 253 111 154, 97
NE 233; Woods v. Chicago, B. & O.
R. Co., 306 111 217, 137 NE 806.
Iowa. Millard v. Northwestern
Mfg. Co., 200 la 1063, 205 NW
979.
Montana. Melzner v. Chicago, M.
& St. P. Ry. Co., 51 Mont 487, 153
P 1019.
New Hampshire. Lindberg: v.
Swenson, 95 NH 184, 60 A2d 458.
Oklahoma. Continental Supply
Co. v. Patrick, 66 Okl 287, 168 P
996.
West Virginia. Bond v. National
Fire Ins. Co., 77 WVa 736, 88 SE
389.
§119
INSTRUCTIONS — RULES GOVERNING
350
Narrower applications of the general rule are that the in-
structions may not be based on evidence excluded,69 or with-
drawn from the jury's consideration,70 or improperly admitted
by the court,71 or abandoned issues,72 or on immaterial and
unprobative facts incidentally revealed on the trial.73 Assump-
tion of facts, or of the existence of evidence to prove them, is
not permissible in the court's charge.74
It follows from the general rule that a refusal to grant an
instruction not based on the evidence would not be error.78
But if such an instruction is given, either as a requested charge
or in the general charge, although erroneous, is it necessarily
prejudicial or reversible error? One court has gone so far as
to hold that under the circumstances of the case it was harmless
error to instruct on an issue which was neither pleaded nor
69 Alabama. Birmingham Ry.,
Light & Power Co. v. Moseley, 164
Ala 111, 51 S 424.
Iowa. Schmidt v. Schumacher,
190 la 1, 179 NW 846.
Maryland. Citizens Mut. Fire Ins.
Co. v. Conowingo Bridge Co., 116
Md 422, 82 A 372.
Missouri. Nafziger v. Mahan (Mo
App), 191 SW 1080.
Oregon. Ritchey v. Tubandt, 119
Or 69, 247 P 1081.
South Carolina. Crosland v. Gra-
ham, &3 SC 228, 65 SE 233.
South Dakota. Smith v. Munson,
59 SD 6, 238 NW 27.
Texas. Buchanan v. Houston &
T. C. R. Co. (TexCivApp), 180 SW
625; Crosgrove v. Smith (TexCiv
App), 183 SW 109.
Virginia. Clark v. Miller, 148 Va
83, 138 SE 556.
Washington. Rich v. Ryan, 103
Wash 474, 175 P 32; Hanson v.
Roesch, 104 Wash 257, 176 P 349.
West Virginia. Bluefield Produce
& Comm. Co. v. Bluefield, 71 WVa
696, 77 SE 277.
70 Indiana. Dickover v. Owen, 84
IndApp 463, 151 NE 349.
Massachusetts. Di Rienzo v. Gold-
farb, 257 Mass 272, 153 NE 784.
Michigan. Union Trust Co. v.
Parker, 251 Mich 630, 232 NW 360.
Pennsylvania. Stewart v. Pen
Argyl Nat. Bank, 307 Pa 328, 161
A 327.
71 California. Martin v. Pacific
Gas & Elec. Co. (CalApp), 255 P
284.
Georgia. Wilkes v. Folsom, 154
Ga 618, 115 SE 4.
Illinois. Kraft - Phenix Cheese
Corp. v. H. B. Smith Mach. Co., 267
IllApp 539.
New Jersey. 0. J. Gude Co. v.
Newark Sign Co., 90 NJL 686, 101
A 392.
Vermont. Ryder v. Vermont Last
Block Co., 91 Vt 158, 99 A 733.
72 Jaques v. Order of United Com-
mercial Travelers, 104 Kan 612, 180
P 200.
73 Palmer v. Magers, 85 WVa 415,
102 SE 100.
74 Illinois. May v. DiCenso, 277
IllApp 248.
Iowa. Steen v. Hunt, 234 la 38,
11 NW2d 690.
Michigan. Fortner v. Koch, 272
Mich 273, 261 NW 762; Lord v. Win-
ningham, 307 Mich 300, 11 NW2d
897.
Pennsylvania. Kirschman v. Pitt
Publishing Co., 318 Pa 570, 178 A
828, 100 ALR 1062.
75 Kimberling v. Wabash Ry. Co.,
337 Mo 702, 85 SW2d 736; Mutual
Benefit Health & Ace. Assn. v.
Smith, 257 Ky 288, 77 SW2d 957;
Minster v. Philadelphia Rapid Trans-
it Co., 115 PaSuper 562, 176 A 72.
See also the cases in note 67,
supra.
351
PERTINENCY
§119
supported by the evidence,76 while another court has held that
such an instruction is prejudicial.77 Where the pleadings raise
an issue, but no evidence, the courts are not in agreement.
Some hold that such an instruction is necessarily prejudicial,78
while others hold otherwise.79
It is clear that an instruction should not be given if there
is an entire absence of evidence.80 Will any evidence, however
76 Blackburn v. Cornette, 220 Ky
758, 295 SW 1046.
77 Osenbaugh v. Virgin & Morse
Lbr. Co., 173 Okl 110, 46 P2d 952.
78 Iowa. Wilkinson v. Queal Lbr.
Co., 20<3 la 476, 212 NW 682; Smith
v. Standard Oil Co., 218 la 709, 255
NW 674.
Kentucky. Pierce v. Crisp, 260
Ky 519, 86 SW2d 293.
But see the Kentucky case cited
in note 79, infra.
Utah. State Bank v. Hollings-
head, 82 Utah 416, 25 P2d 612.
But see the Utah case cited in
note 79, infra.
79 California. Smith v. Hale, 3
CalApp2d 277, 39 P2d 445.
Kentucky. Major Taylor & Co.
v. Harding, 182 Ky 236, 206 SW
285.
But see the Kentucky case cited
in note 78, supra.
Missouri. Miller v. Williams (Mo),
76 SW2d 355.
Nebraska. Weber v, Weber, 124
Neb 878, 248 NW 642.
New Hampshire. Lindberg v.
Swenson, 95 NH 184, 60 A2d 458.
Oklahoma. Guest v. Shamburger,
120 Okl 164, 251 P 97; Earl W.
Baker & Co. v. Hollis, 169 Okl 253,
36 P2d 757.
Texas. Texas & P. Ey. Co. v.
Greene (TexCivApp), 291 SW 929,
affd. in 299' SW 639.
Utah. Jenson v. S. H. Kress &
Co., 87 Utah 434, 49 P2d 958.
But see the Utah case cited in
note 78, supra.
80 Federal. Tacoma Ry. & Power
Co. v. Erpelding, 120 CCA 401, 202
F 187 (instruction on negligence of
physician in performing operation
where there was no evidence of un-
skillfulness).
Alabama. Stockburger v. Ader-
holt, 204 Ala 557, 86 S 464; Walden
v. Warren, 215 Ala 94, 109 S 749
(no evidence of lack of considera-
tion for note).
Arizona. Scott v. Scott, 75 Ariz
116, 252 P2d 571.
California. Tompkins v. Mont-
gomery, 123 Cal 219, 55 P 997.
Colorado. Lawson v. VanAuken,
6 Colo 52; McNulty v. Durham, 63
Colo 354, 167 P 773.
Georgia. Gaskins v. Gaskins, 145
Ga 806, 89 SE 10&0.
Idaho. Whitman v. McComas, 11
Idaho 564, 83 P 604.
Illinois. Vallette v. Bilinski, 167
111 564, 47 NE 770; Casey v. CM-
cago Rys. Co., 269 111 386, 109 NE
984, LRA 1916B, 824; Smith v. Bell-
rose, 200 IllApp 368; Rowan v. Bar-
tonville Bus Line, 242 IllApp 451;
R. A. Watson Orchards, Inc. v. New
York, C. & St. L. R. Co., 263 IllApp
397.
In a negligence action where the
evidence shows one of the parties
was negligent, it is error to in-
struct on the theory that the oc-
currence was an accident. Peters
v. Madigan, 262 IllApp 417.
Indiana. Scobel v. Crisswell, 25
Ind 241; Buchanan v. Morris, 198
Ind 79, 151 NE 385.
Iowa. Frank v. Berry, 128 la 223,
103 NW 358; Dunnegan & Briggs v.
Chicago, R. I. & P. R. Co,, 202 la
787, 211 NW 364.
Submission of numerous grounds
of negligence is prejudicial where
there was evidence as to only a
portion of them. Butler v. Globe
Plumbing & Heating Co. (la), 126
NW 954.
Kentucky. Olive Hill Fire Brick
Co. v. Ash, 146 Ky 253, 142 SW 403
119
INSTRUCTIONS — RULES GOVERNING
352
slight, support an instruction? Is the test the same as that
used in passing on a motion for a directed verdict? The most
common expressions used by the courts is that the instruction
must be sustained by, supported by, justified by, or grounded
on the evidence. These expressions are of little help. Some
courts are more specific. An instruction may be given though
the evidence on which it is based is slight.81 This appears to
(no evidence on which, to base in-
struction on fellow servant doc-
trine).
Maryland. Thistle Mills v. Sparks,
137 Md 117, 111 A 769.
Massachusetts. Jacobs v. Brown,
254 Mass 474, 150 NE 206; Snell v.
Rousseau, 257 Mass 559, 154 NE
70.
Michigan. Gallaway v. Burr, 32
Mich 332. See Pratt v. Van Rensse-
laer, 235 Mich 633, 209 NW 807
(holding that under the evidence it
was proper to refuse to charge that
the acts of architect amounting to
negligence were not binding on the
property owner).
Minnesota. Farrell v. G. 0. Mil-
ler Co., 147 Minn 52, 179 NW 566.
Missouri. Cobb v. St. Louis &
H. Ry. Co., 149 Mo 609, 50 SW 894;
Kansas City, C. C. & St. J. Ry. Co.
v. Couch (Mo), 187 SW 64.
Montana. Hageman v. Arnold, 79
Mont 91, 254 P 1070 (no evidence
of justification for assault).
Nebraska. Russell v. Gillespie,
38 Neb 461, 56 NW 981; Miller Rub-
ber Products Co. v. Anderson, 123
Neb 247, 242 NW 449.
Nevada, Van Fleet v. O'Neil, 44
Nev 216, 192 P 384; Davis v. Davis,
54 Nev 267, 13 P2d 1109.
New Hampshire. Woodbury v.
Butler, 67 NH 545, 38 A 379.
New York. Schmit v. Gillen, 41
AppDiv 302, 58 NYS 458; Mara v.
Tunney, 236 AppDiv 82, 258 NYS
191.
Ohio. Kolp v. Stevens, 45 OhApp
147, 39 OLR 4, 186 NE 821.
Oklahoma. Lawton v. McAdams,
15 Okl 412, 83 P 429; Chicago, R. I.
& P. Ry, Co. v. Holland, 117 Okl
30, 245 P 611.
In an action on a life policy, it
was proper to refuse to charge that
the plaintiff could not recover if he
knew at the time of making the
application that he had tuberculosis,
where there was no evidence that
the insured had tuberculosis at the
time. Loyal Union Circle v. Rose,
117 Okl 25, 245 P 624.
South Carolina. Welch v. Clifton
Mfg. Co., 55 SC 568, 33 SE 739.
Vermont. Gaudenzio v. Bissell,
90 Vt 349, 98 A 760',
Virginia. Lynchburg v. Wallace,
95 Va 640, 29 SE 675.
Washington. Cop eland v. North
Coast Transp. Co., 169 Wash 84,
13 P2d 65.
In an action against a physician
for malpractice, it is error to charge
the jury that the defendant must
possess skill commensurate with the
advanced condition of science, where
there is no evidence as to what is
the advanced condition of science.
Corey v. Radabaugh, 143 Wash 653,
255 P 1037.
West Virginia. Roberts v. Lykins,
102 WVa 409, 135 SE 388.
8 f California. Brandes v. Rucker-
Fuller Desk Co., 102 CalApp 221,
282 P 1009; Veall v. Sanborn, 115
CalApp 87, 300 P 974.
Georgia. Sovereign Camp, W. 0.
W. v. McDaniel, 20 GaApp 430, 93
SE 105.
Kansas. Wyrick v. Parsons Ry.
& Light Co., 100 Kan 122, 163 P
1059.
Kentucky. Minor v. Gordon, 171
Ky 790, 188 SW 768.
Nebraska. It is reversible error
to refuse a requested instruction ap-
plicable to the evidence where the
point is not covered by any other
instruction. Forsha v. Nebraska
353
PERTINENCY
119
be an application of the scintilla rule. On the other hand, in
states where the scintilla doctrine is repudiated, it is not re-
quired that the court instruct where the evidence to support
the instruction is such that a verdict founded upon the instruc-
tion cannot be maintained.82 Perhaps another way to state it
is that the instruction must have substantial support in the
testimony.83
Illustrations of the application of the rule of instructions
supported by the evidence:
Negligence. No specific acts of negligence should be covered
by the instructions unless they have support in the evidence.84
In a negligence case it is prejudicial error for the trial court
to charge the jury on the subject of wilful tort when such
charge is unsupported by the evidence.85
So an instruction on contributory negligence should be re-
fused where there is no evidence of negligence on the part of
the plaintiff.86 The instruction on the last clear chance doctrine
Moline Plow Co., 89 Neb 770, 182
NW 384.
Rhode Island. Arava v. Bebe, 48
RI 478, 139- A 302.
Virginia. Smyth Bros.-McCleary-
McClellan Co. v. Beresford, 128 Va
137, 104 SE 371.
West Virginia. Snedeker v. Ru-
long, 69 WVa 223, 71 SE 180; Barna
v. Gleason Coal & Coke Co., 83 WVa
216, 98 SE 158; Myers v. Cook, 87
WVa 265, 104 SE 593 (though in-
sufficient to sustain a verdict).
*2 Upton & Walker v. R. D. Hoi-
loway & Co., 126 Va 657, 102 SE 54.
83 Neibert v. Stone, 247 la 366,
73 NW2d 763.
84 Federal. Erie R. Co. v. Vajo,
41 F2d 738.
Iowa. Kelly v. Muscatine, B. &
S. R. Co., 195 la 17, 191 NW 525;
Ryan v. Trenkle, 203 la 443, 212 NW
888.
Kentucky. Louisville & N. R. Co.
v. Clark, 211 Ky 315, 277 SW 272.
Massachusetts. Goldstein v. Slut-
sky, 254 Mass 501, 150 NE 326;
Walsh v. Gillis, 276 Mass 79, 176 NE
802.
Missouri. State ex rel. Goessling
v. Daues, 314 Mo 282, 284 SW 463;
Galber v. Grossberg, 324 Mo 742, 25
SW2d 96; James v. Mott (MoApp),
215 SW 913; Bauer v. Fahr (Mo
App), 282 SW 150.
New Jersey. Cohen v. Delaware,
L. & W. R. Co., 10 NJMisc 727,
160 A 398.
New York. McCormick v. Merritt,
232 AppDiv 619, 250 NYS 443.
S5Denzer v. Terpstra, 129 OhSt
1, 1 OhO 303, 193 NE 647.
86 Alabama. Birmingham South-
ern R. Co. v. Guest, 16 AlaApp 252,
77 S 241; Webb & Co. v. Riley, 16
AlaApp 570, 80 S 144.
Arkansas. Sun Oil Co. v. Hedge,
173 Ark 729, 293 SW 9.
California. Marston v, Pickwick
Stages, 78 CalApp 526, 248 P 930.
In a suit for personal injuries al-
leged to have been occasioned by
the overturning of a vehicle, an in-
struction is rightly refused which
directs the jury to find for the de-
fendant if they believe from the evi-
dence that the plaintiff jumped from
the conveyance, where there is no
evidence justifying a finding that
the plaintiff did so. Tompkins v.
Montgomery, 123 Cal 219, 55 P 997.
Colorado. Finding v. Gitzen, 24
ColoApp 38, 131 P 1042.
Florida. Harris v. Florida Public
Service Co., 100 Fla 90, 129 S 333.
§119
INSTRUCTIONS — RULES GOVERNING
354
should be refused where there Is no evidence on which to base
it.8T
In a case where the evidence showed a violation of a speed
ordinance by a street car, the court properly instructed that a
pedestrian could presume that the ordinance would not be vio-
lated though there was no evidence that he knew of the existence
of the ordinance.88 In an action against truck owner for damages
to plaintiff's automobile predicated on evidence showing plaintiff's
automobile was knocked in front of street car by defendant's
truck suddenly turning to the left and was hit by the street
car while the plaintiff was attempting to pass the truck, the
court properly refused to charge the jury with respect to a city
ordinance prohibiting automobiles passing street cars stopping
to discharge or take on passengers.89 Where there was no evi-
dence of intoxication of automobile driver charged with negli-
gence, it was error to charge the jury to consider whether he
Indiana. Ross v. Lambert, 79 Ind
App 30', 137 NE 185.
Kansas. Brower v. Western Un-
ion Tel. Co., 81 Kan 109, 105 P 497.
Maryland. Anne Arundel County
Comrs. v. Carr, 111 Md 141, 73 A
668; Baltimore & 0. R. Co. v. Engle,
149 Md 152, 131 A 151.
Missouri. Taylor v. Missouri Pacif-
ic R. Co., 311 Mo 604, 279 SW 115;
Ottofy v. Mississippi Valley Trust
Co., 197 MoApp 473, 196 SW 428.
Montana. Kelley v. John R. Daily
Co., 56 Mont 63, 181 P 326.
Nebraska. Koehn v. Hastings, 114
Neb 106, 206 NW 19; Martin v.
Brownell Bldg. Co., 115 Neb 749,
214 NW 635; Reals v. Grazis, 125
Neb 877, 252 NW^ 413.
New York. Middendorf v. Inter-
national R. Co., 218 AppDiv 218,
218 NYS 126.
Ohio. Lindeman v. Roche, 18 Oh
App 366. See Paragon Ref. Co. v.
Higbea, 22 OhApp 440, 153 NE 860.
Oklahoma. Okmulgee Window
Glass Co. v. Bright, 65 Okl 53, 183
P 898.
Oregon, Gunnell v. Van Emon
Elev. Co., 81 Or 408, 159 P 971
(safe and unsafe method of work).
Texas. Marshall & -E. T. Ry. Co.
v. Blackburn (TexCivApp), 155 SW
625; Paris & G. N. Ry. Co. v. Atkins
(TexCivApp), 185 SW 306.
87 California. Ebrite v. Crawford,
215 Cal 724, 12 P2d 937.
Colorado. Murray v. Newmyer,
66 Colo 459, 182 P 888.
Connecticut. Biedrzicki v. O'Keefe,
105 Conn 373, 135 A 388; Bullard
v. De Cordova, 119 Conn 262, 175
A 673.
Indiana. Indianapolis Trac. <& Ter-
minal Co. v. Lee, 67 IndApp 105, 118
NE 959.
Iowa. Robbins v. Weed, 187 la
64, 169 NW 773.
Missouri. Albright v. Joplin Oil
Co., 206 MoApp 412, 229 SW 829.
See Sisk v. Industrial Track Constr.
Co., 316 Mo 1143, 295 SW 751.
New Mexico. Thayer v. Denver
& R. G. R. Co., 21 NM 330, 154 P
691.
Ohio. Pennsylvania R. Co. v.
Hart, 101 OhSt 196, 128 NE 142.
Oklahoma. Webb v. Missouri, O.
& G. Ry. Co., 74 Okl 223, 179 P 17.
Utah. Daley v. Salt Lake & U. R.
Co., 67 Utah 238, 247 P 293.
Virginia. Southern Ry. Co. v.
Mason, 119 Va 256, 89 SE 225.
Washington, Johnson v. Seattle,
113 Wash 487, 194 P 417.
88 Richmond v. Tacoma Ry. &
Power Co., 67 Wash 444, 122 P 351.
See Dawson v. San Diego Elec. Ry.
Co., 82 CalApp 141, 255 P 215.
89Ruffin Coal & Transfer Co. v.
Rich, 214 Ala 633, 108 S 596.
355
PERTINENCY
119
was under the influence of strong- drink.90 In a personal injury
action, it is not proper to instruct on the theory of accident
where the evidence shows that the injury resulted either from
the negligence of the employer or that of the employee combined
with that of the employer.91 In a damage action based on
collision between plaintiff's bicycle and defendant's automobile,
the court properly refused to charge with respect to the proper
center of the street intersection where the accident occurred,
where the evidence showed that the defendant in making the
turn cut the corner.92
Damages. The instruction on damages should cover only
those elements covered by the evidence.93 An instruction on
90Holloway v. Milledgeville, 35
GaApp 87, 132 SE 106.
9 ' Mills v. F. W. Steadley & Co.
(MoApp), 279 SW 160. See Keller
v. Gartin, 220 la 78, 261 NW 776
(where there was no evidence tend-
ing to show that the injury sued for
resulted from accident).
92Nagel v. McDermott, 138 Wash
536, 244 P 977.
93 Federal. Public Utilities Corp.
v. Oliver, 64 F2d 60.
Alabama. Tennessee River Nav.
Co. v. Woodward, 18 AlaApp 34, 88
5 364 (aggravation of damages).
Arizona. Atchison, T. & S. F.
Ry. Co. v. Gutierrez, 30 Ariz 491,
249 P 66 (authorizing medical ex-
penses where there was no evidence
with respect thereto) .
California, Withrow v. Becker,
6 CalApp2d 723, 45 P2d 235.
Georgia. Sammons v. Wilson, 20
GaApp 241, 92 SE 950; Atlanta v,
Feeney, 42 GaApp 135, 155 SE 370;
Mitchell v. Mullen, 45 GaApp 282,
164 SE 276.
Illinois. Ryan v. Chicago City R.
Co., 205 IllApp 592 (medical ex-
penses).
Iowa. Richardson v. Sioux City,
172 la 260, 154 NW 430, AnnCas
1918 A, 618; Looney v. Parker, 210
la 85, 230 NW 570; Waldman v.
Sanders Motor Co., 214 la 1139, 243
NW 555.
Kansas. United Iron Works v. L.
J. Smith Constr. Co., 116 Kan 482,
227 P 369.
Kentucky. Louisville & N. R. Co.
v. Johnson, 214 Ky 189, 282 SW 1087
(loss of earning power) ; Prestons-
burg v. Lafferty, 218 Ky 652, 291
SW 1030 (damage to health by over-
flow of property) ; Hunt-Forbes
Constr. Co. v. Martt, 247 Ky 376,
57 SW2d 37; Humphrey v. Mans-
bach, 251 Ky 66, 64 SW2d 454;
Kreuzman's Admr. v. Nienaber, 253
Ky 241, 69 SW2d 367; Southeastern
Tel. Co. v. Payne, 253 Ky 245, 69
SW2d 358.
Maryland. Mt. Royal Cab Co. v.
Dolan, 166 Md 581, 171 A 854.
Michigan. Fitzgerald v. Detroit
United Ry., 206 Mich 273, 172 NW
608 (permanency of injury).
Mississippi. Baker v. First Nat.
Bank, 147 Miss 530, 113 S 205.
Missouri. Cordray v. Brookfield,
334 Mo 249, 65 SW2d 938; Moses v.
Klusmeyer, 194 MoApp 634, 186 SW
958; Thompson v. United Rys. Co.,
203 MoApp 356, 218 SW 343 (value
of nursing services); Lehmer v.
Smith, 220 MoApp 251, 284 SW
167 (loss of time) ; Colby v. Thomp-
son (MoApp), 207 SW 73 (perma-
nency of injuries); Brown v. John
M. Darr & Sons Planing Mill Co.
(MoApp), 217 SW 332 (loss of earn-
ings).
Nebraska. Mick v. Oberle, 124
Neb 433, 246 NW 869.
New Jersey. Pavlika v. Giglio,
5 NJMisc 590, 137 A 528.
New York. Wiser v. Van Dyke
Transfer Co., 218 AppDiv 222, 218
NTS 146.
Ohio. Swisher v. Kimbrough, 25
OhApp 233, 157 NE 823.
§119
INSTRUCTIONS — RULES GOVERNING
356
exemplary damages should not be given where there is an entire
lack of evidence of wilfulness, malice, or reckless indifference
to consequences.94 It is error to instruct the jury in a slander
action that they may consider the financial condition of the
parties if there is no evidence before the jury touching such
matter.95
Miscellaneous. Even though a rule of law, such as that govern-
ing positive and negative testimony, is correctly stated in an
instruction, it may be rejected if inapplicable to the evidence,96
and the principle is the same where the basis of an instruction is
a certain hypothesis not sustained by the evidence.97
Oklahoma. Missouri Pacific R.
Co. v. Quails, 120 Okl 49, 250 P 774.
Pennsylvania. Boyle v. Philadel-
phia Rapid Transit Co., 286 Pa 536,
134 A 446.
Tennessee. Tennessee Cent. By.
Co. v. Dial, 16 TennApp 646, 65
SW2d 610 ; Murfreesboro v. Haynes,
18 TennApp 653, 82 SW2d 236.
Texas. San Antonio Trac. Co. v.
Cox (TexCivApp), 184 SW 722; Red
Arrow Freight Lines, Inc. v. Gravis
{TexCivApp), 84 SW2d 540.
Utah. Haycraft v. Adams, 82
Utah 347, 24 P2d 1110.
Virginia. Dreyfus & Co. v. Woo-
ters, 123 Va 42, 96 SE 235 (medical
expenses); Eastern Coal & Export
Corp. v. Norfolk & W. Ry. Co., 133
Va 525, 113 SE 857.
Washington. Estes v. Babcock,
119 Wash 270, 205 P 12 (mental
anguish).
West Virginia. Miller v. United
Fuel Gas Co., 88 WVa 82, 106 SE
419 (permanency of injury).
94 Alabama. Louisville & N. R.
Co. v. Cornelius, 6 AlaApp 386, 60
S 740.
Colorado. Western Light & Power
Co. v. Poor, 69 Colo 380, 194 P 613.
Georgia. Savannah Elec. Co. v.
Jackson, 132 Ga 559, 64 SE 680.
Illinois. Malloy v. Chicago Tel.
Co., 159 IllApp 556.
North Carolina. Brown v. Martin,
176 NC 31, 96 SE 642.
Virginia. Norfolk & W. Ry. Co. v.
Stone, 111 Va 730, 69 SE 927.
Wisconsin. Langowski v. Wis-
consin Cent. Ry. Co., 153 Wis 418,
141 NW 236.
95 Barker v. Green, 34 GaApp
574, 130 SE 599.
96Lawton v. Me Adams, 15 Okl
412, 83 P 429.
97 Federal. May Department
Stores Co. v. Runge, 154 CCA 351,
241 F 575.
Alabama. Massachusetts Mut.
Life Ins. Co. v. Crenshaw, 195 Ala
263, 70 S 768; Birmingham Fuel Co.
v. Taylor, 202 Ala 674, 81 S 630;
Kelly v. Cook, 15 AlaApp 350, 73
S 220.
Illinois. Carlin v. Chicago Rys.
Co., 205 IllApp 303.
Indiana. Chicago & E. R. Co. v.
Mitchell, 184 Ind 588, 110 NE 680.
Iowa. Plantz v. Kreutzer &
Wasem, 175 la 562, 154 NW 785;
Steele v. Ingraham, 175 la 653, 155
NW 294; W. T. Rawleigh Medical
Co. v. Bane, 181 la 734, 165 NW 42.
Maryland. Forest Hill Permanent
Bldg. Assn. v. Fisher, 140 Md 666,
118 A 164.
Michigan. Moynahan v. Connor,
30 Mich 136.
Where an instruction is founded
upon an assumed state of facts, and
the evidence points to a condition
directly opposite, it will be prejudi-
cially erroneous. Dodge v. Brown,
22 Mich 446.
Missouri. J. F. Meyer Mfg. Co.
v. Sellers, 192 MoApp 489, 182 SW
789; Miller v. Peoples Sav. Bank,
193 MoApp 498, 186 SW 547.
Nebraska. Owens v. Omaha & C.
B. Street Ry. Co., 99 Neb 364, 156
NW 661; Hammang v. Chicago &
N. W. Ry. Co., 107 Neb 684, 186
NW 991.
357 PERTINENCY § 120
In an action to recover land, where an instruction is based
on the theory that plaintiff made no claim to the land until
"after he procured certificate of entry from the government/'
and there was no evidence supporting such theory, the instruc-
tion was rightly refused.98
Where there was no evidence showing, or tending to show,
that a guardian ad litem had or had not been appointed for
infant defendants, an instruction was correctly refused which
told the jury that if they found from the evidence that certain
defendants were "infants under the age of twenty-one, and
that no guardian ad litem for them had been appointed in this
cause, then their verdict must be for said defendants."99
A foreign statute should be proved before an instruction
thereon should be given,1 as should also a city ordinance.2 For
like reasons an instruction on estoppel should be given only
where supported by the evidence.3
In action by wife on policy covering life of husband, it is error
to instruct that plaintiff cannot recover if she killed her hus-
band, there being no evidence of homicide.4
It is improper to submit the question of undue influence
in the execution of a will where there is no evidence in regard
thereto.5
§ 120. Pertinency to evidence admitted in criminal prosecutions.
Instructions in criminal prosecutions should not be given
unless supported by evidence pertinent to the allegations in the
indictment.
Pennsylvania. Gandy v. Klaw, 2 California. Ebrite v. Crawford,
269 Pa 320, 112 A 464. 215 Cal 724, 12 P2d 937.
Rhode Island. Di Sandro v. Provi- Indiana. Chicago, I. & L. Ry. Co,
dence Gas Co., 40 RI 551, 102 A 617. v. Blankenship, 85 IndApp 332, 154
Texas. Gulf States Tel. Co. v. NE 44.
Evetts (TexCivApp), 188 SW 289; Kentucky. Cline v. Cook, 216 Ky
J. Kennard & Sons Carpet Co. v. 366, 287 SW 927.
Houston Hotel Assn. (TexCivApp), Ohio. Astrup Co. v. Rehburg, 42
197 SW 1139. OhApp 126, 36 OLR 405; 181 NE
Virginia. New York Life Ins. Co. 551.
v. Franklin, 118 Va 418, 87 SE 584. 3 California. Davis v. Cline, 184
West Virginia. Ellison v. Norfolk Cal 548, 195 P 42.
& W. Ry. Co., 83 WVa 316, 98 SE Colorado. Farmers Bank & Trust
257; Penix v. Graf ton, 86 WVa 278, Co. v. Miller, 80 Colo 121, 249 P 644.
103 SE 106. Georgia. Parker v. Crosby, 150
98Coker v. Payne (Ala), 39 S Ga 1, 102 SE 446.
iO'25. Missouri. Lally v. Morris (Mo
"Campbell v. Hughes, 12 WVa App), 26 SW2d 52.
183. 4 Marlowe v. Hoosier Casualty
1 Buchholz v. Standard Oil Co., Co., 114 PaSuper 181, 174 A 627.
211 MoApp 397, 244 SW 973. 5 Jones v. Jones, 215 Ky 218,
§120
INSTRUCTIONS — RULES GOVERNING
358
In criminal prosecutions, the instructions must be based on
facts supported by evidence pertinent to the allegations in the
indictment and should not be given unless they have such sup-
port.6 The same prohibition applies to instructions on theories
284 SW 993. See Erickson v. Lund-
gren (Mo), 286 SW 120.
6 Federal. Bird v. United States,
187 US 118, 47 LEd 100, 23 SupCt
42; Clifton v. United States, 54
AppDC 104, 295 P 925.
Alabama. Plant v. State, 140 Ala
52, 37 S 159; Phillips v. State, 162
Ala 53, 50' S 326; Parker v. State,
165 Ala 1, 51 S 260; Cranberry v.
State, 182 Ala 4, 62 S 52; Lewis v.
State, 18 AlaApp 263, 89 S 904.
Arizona. Macias v. State, 36 Ariz
140, 283 P 711; Viliborghi v. State,
45 Ariz 275, 43 P2d 210.
Arkansas. Brown v. State, 99
Ark 648, 138 SW 633; Diggs v.
State, 126 Ark 455, 190 SW 448.
California. People v. Trebilcox,
149 Cal 307, 86 P 684; People v.
Davis, 210 Cal 540, 293 P 32; Peo-
ple v. Ferlin (Cal), 257 P 857; Peo-
ple v. Williams, 29 CalApp 552, 156
P 882; People v. Allen, 138 CalApp
652, 33 P2d 77.
Colorado. Mow v. People, 31 Colo
351, 72 P 1069; Reagan v. People,
49 Colo 316, 112 P 785.
District of Columbia. Norman v.
United States, 20 AppDC 494.
Florida. Melbourne v. State, 51
Fla 69, 40 S 189; Carlton v. State,
63 Fla 1, 58 S 486; Gadsden v. State,
77 Fla 627, 82 S 50.
Georgia. Rooks v. State, 119 Ga
431, 46 SE 631.
Illinois. Lyman v. People, 198 111
544, 64 NE 974; People v. Reno,
324 111 484, 155 NE 329.
In People v. Corbishly, 327 111
312, 158 NE 732, the court held that
it would be improper to instruct in
a prosecution for assault with intent
to murder, as to the penalty for
rape and mayhem.
Indiana. Braxton v. State, 157
Ind 213, 61 NE 195; Brunaugh v.
State, 173 Ind 483, 90 NE 1019.
Iowa. State v. Denhardt, 129 la
135, 105 NW 385; State v. Smalley,
Zll la 109, 233 NW 55,
It is error to give an instruction
on maintaining nuisance in a prose-
cution for bootlegging. State v.
Moore, 201 la 743, 229 NW 701.
Kentucky. Middleton v. Common-
wealth, 136 Ky 354, 124 SW 355;
Flynn v. Commonwealth, 204 Ky
572, 264 SW 1111; Fry v. Common-
wealth, 259' Ky 337, 82 SW2d 431.
In Yarbrough v. Commonwealth,
219 Ky 319, 292 SW 806, the court
held it error to instruct that of-
ficers had a right to arrest the
defendant if he was drunk at the
time, where no evidence was intro-
duced showing his intoxication.
Louisiana. State v. Guidor, 113
La 727, 37 S 622; State v. Howard,
127 La 435, 53 S 677; State v. Suire,
142 La 101, 76 S 254.
Maryland. Bell v. State, 200 Md
223, 88 A2d 567.
Michigan. People v. Hilliard, 119
Mich 24, 77 NW 306.
Mississippi. Wheeler v. State, 76
Miss 265, 24 S 310; Smith v. State,
161 Miss 430, 137 S 96; Cole v.
State, 172 Miss 19, 159 S 296.
Missouri. State v. Rollins, 226 Mo
524, 126 SW 478; State v. Nord, 230'
Mo 655, 132 SW 239; State v. Worten
(Mo), 263 SW 124.
Instruction that defendant, a boy
under fourteen years of age, by
reason of his intelligence was ca-
pable of crime was erroneous where
there was no evidence on which to
base it. State v. Tice, 90 Mo 112,
2 SW 269.
Montana. State v. Evans, 60
Mont 367, 199 P 440.
North Carolina. State v. Hicks,
130 NC 705, 41 SE 803.
Ohio. State v. Linder, 76 OhSt
463, 81 NE 753 (sale of intoxicating
liquors); Cromley v. State, 19 Oh
CirCt (N. S.) 526, 26 OhCirDec 209,
59 OhBull 363.
It is not error to give a true
hypothetical proposition founded up-
359
PERTINENCY
§120
not based on evidence.7 The necessary support is present even
though the evidence is slight8 or inconsistent.9 But the fact
on extraneous facts. Stoughton v.
State, 2 OhSt 562.
Oklahoma. Ryan v. State, 8 Okl
Cr 623, 129 P 685; Yarbrough v.
State, 13 OklCr 140, 162 P 678.
Oregon. State v. Miller, 43 Or
325, 74 P 658; State v. Hamilton,
80 Or 562, 157 P 796.
Pennsylvania. Commonwealth v.
Danz, 211 Pa 507, 60 A 1070.
South Carolina. State v. Wald-
rop, 73 SC 601, 52 SE 793.
Tennessee. Cooper v. State, 123
Tenn 37, 138 SW 826,
Texas. Woodland v. State, 57
TexCr 352, 123 SW 141; Johnson
v. State, 59 TexCr 263, 128 SW 614;
Powell v. State, 60 TexCr 201, 131
SW 590; Jones v. State, 60 TexCr
426, 132 SW 476; Alexander v. State,
63 TexCr 102, 138 SW 721; Smith
v. State, 67 TexCr 27, 148 SW 699;
Corley v. State, 69 TexCr 626, 155
SW 227; O'Neal v. State, 106 TexCr
158, 291 SW 892; Teals v. State,
127 TexCr 198, 75 SW2d 678; Blair
v. State, 120 TexCr 269, 80 SW2d
978.
The court should not instruct that
rape was committed by threats or
fraud where there was no pretense
that it was so committed. Reyna
v. State (TexCr), 75 SW 25.
Utah. State v. Gordon, 28 Utah
15, 76 P 882.
Virginia. Johnson v. Common-
wealth, 102 Va 927, 46 SE 789.
Washington. State v. Patrick, 179
Wash 510, 38 P2d 261.
West Virginia. State v. Sheppard,
49 WVa 582, 39' SE 676; State v.
Donahue, 79 WVa 260, 90 SE 834;
State v. Wilson, 95 WVa 525, 121
SE 726; State v. Shelton, 116 WVa
75, 178 SE 633.
7 Federal. De Groot v. United
States, 78 F2d 244.
Alabama. Jones v. State, 16 Ala
App 7, 74 S 843 (commission of of-
fense by another).
Arizona. Clark v. State, 23 Ariz
470, 204 P 1032 (commission of of-
fense by another).
Georgia. Wolfe v. State, 121 Ga
587, 49 SE 688; Taylor v. State,
138 Ga 826, 76 SE 347.
Iowa. State v. Mullen, 151 la
392, 131 NW 679, AnnCas 1913A,
399.
Kentucky. Anderson v. Common-
wealth, 144 Ky 215, 137 SW 1063;
King v. Commonwealth, 187 Ky 782,
220 SW 755.
Michigan. People v. Cummins, 47
Mich 334, 11 NW 184, 186.
Missouri. State v. Swain, 239 Mo
723, 144 SW 427; State v. Byrd, 278
Mo 426, 213 SW 35 (that another
had committed the offense).
New York. People v. Tirnauer,
77 Misc 387, 136 NYS 833, 28 NYCr
29.
Oklahoma. Newby v. State, 17
OklCr 291, 188 P 124; Tucker v.
State, 17 OklCr 580, 191 P 201;
Holmes v. State, 18 OklCr 415, 195
P 508.
Oregon. State v. Weston, 102 Or
102, 201 P 1083 (declarations as res
gestae).
Pennsylvania. Commonwealth v.
Calhoun, 238 Pa 474, 86 A 472.
Texas. Wash v. State (TexCr),
47 SW 469; Taylor v. State, 62 Tex
Cr 611, 138 SW 615; Ice v. State, 84
TexCr 509, 208 SW 343; Hasley v.
State, 87 TexCr 444, 222 SW 579;
Grissom v. State, 87 TexCr 465, 222
SW 237; Johns v. State, 129 TexCr
206, 86 SW2d 235.
Washington. State v. Hessel, 112
Wash 53, 191 P 637.
West Virginia. State v. Donahue,
79 WVa 260, 90 SE 834; State v.
Weissengoff, 89 WVa 279, 109 SE
707.
8 Alabama. Talley v. State, 26
AlaApp 130, 154 S 611.
Florida. Ward v. State, 51 Fla
133, 40 S 177.
Indiana. Harris v. State, 155 Ind
265, 58 NE 75.
Kansas. State v. Gallamore, 83
Kan 412, 111 P 472.
West Virginia. State v. McKin-
ney, 8a WVa 400, 106 SE 894,
120
INSTRUCTIONS — RULES GOVERNING
360
that the Instruction states a correct principle of law does not
make it proper if not based on the evidence adduced. ! °
So where there is an entire absence of evidence on the subject
the court may not instruct on such matters, among others, as
the credibility of witnesses, ' ' alibi, l 2 admissions, ! 3 confes-
sions,14 threats,15 insanity,16 entrapment,17 motive or its ab-
Wisconsin. Holmes v. State, 124
Wis 133, 102 NW 321.
9 Hayes v. State (TexCr), 39 SW
106.
But it has been held that if the
accused's testimony upon a particu-
lar point is so completely refuted
by the physical facts as to render
it utterly unreasonable, the court
need not charge upon the theory
attempted to be raised thereby.
Williams v. State, 56 OMCr 147, 35
P2d 282.
10 Indiana. Davis v. State, 152
Ind 34, 51 NE 928, 71 AmSt 322.
Louisiana. State v. Capaci, 179
La 462, 154 S 419.
Oklahoma. Sigler v. State, 54
OklCr 353, 21 P2d 1073.
Utah. State v. Marasco, 81 Utah
325, 17 P2d 919.
Washington. State v. Powell, 142
Wash 463, 253 P 645.
1 ' Alabama. Nabors v. State, 120
Ala 323, 25 S 529; Woods v. State,
18 AlaApp 123, 90 S 52.
Arkansas. Davis v. State, 150
Ark 500, 234 SW 482.
California. People v. Ward, 134
Cal 301, 66 P 372; People v. Blun-
kall, 31 CalApp 778, 161 P 997.
Florida. Graham v. State, 72 Fla
510, 73 S 594.
Georgia. Amerson v. State, 18
GaApp 176, 88 SE 998 (impeach-
ment by contradictory statements).
Idaho. State v. Boyles, 34 Idaho
283, 200 P 125 (falsus in uno, fal-
sus in omnibus).
Illinois. Johnson v. People, 197
111 48, 64 NE 286; People v. Ruka-
vina, 338 111 128, 170* NE 240.
Indiana. Colondro v. State, 188
Ind 533, 125 NE 27; Leinberger v.
State, 204 Ind 311, 183 NE 798
(character, if not attacked, cannot
be submitted as bearing on credi-
bility of witness).
Kansas. State v. Covington, 99
Kan 151, 160 P 1009.
Missouri. State v. Broyles, 317
Mo 276, 295 SW 554.
Pennsylvania. Commonwealth v.
Loomis, 267 Pa 438, 110 A 257.
1 2 Alabama. Morris v. State, 124
Ala 44, 27 S 336.
Georgia. Foy v. State, 26 GaApp
205, 105 SE 657.
Illinois. People v. Reno, 324 111
484, 155 NE 329; People v. Ryan,
349 111 637, 182 NE 803.
Iowa. State v. Steffen, 210 la
196, 230 NW 536, 78 ALR 748.
Kansas. State v. Calvert, 96 Kan
813, 153 P 499; State v. Wolkow, 110
Kan 722, 205 P 639, 42 ALR 265.
Pennsylvania. Commonwealth v.
Bednorciki, 264 Pa 124, 107 A 666.
Texas. Johnson v. State (TexCr),
58 SW 105.
1 3 State v. Duncan, 101 Wash 542,
172 P 915. See People v. Powell,
83 CalApp 62, 256 P 561.
1 4 Federal. Rossi v. United States,
278 F 349.
Alabama. Dickerson v. State, 21
AlaApp 631, 111 S 190.
Georgia. Knight v. State, 114 Ga
48, 39 SE 928, 88 AmSt 17; Owens
v. State, 120 Ga 296, 48 SE 21;
Chislon v. State, 19 GaApp 607, 91
SE 893; Easterling v. State, 24 Ga
App 424, 100 SE 727; Hillery v.
State, 51 GaApp 373, 180 SE 499.
Illinois. People v. Fiereto, 303
111 186, 135 NE 417.
North Carolina. Where the state
relied on the confession of accused
and on circumstances showing an
opportunity to commit the crime
charged, and accused relied on an
alibi, instructions on circumstantial
evidence, though correct as abstract
propositions, were properly refused.
State v. West, 152 NC 832, 6£ §U
361
PERTINENCY
§120
sence for commission of crime,18 flight of accused,19 former
jeopardy,20 accessories after the fact,21 conspiracy to commit
Oregon. State v. Howard, 102 Or
431, 203 P 311.
Texas. Fox v. State (TexCr), 87
SW 157.
Where there was no evidence that
confession was involuntary, it was
not necessary to instruct that con-
fession is not to be considered unless
the jury believe that it was made
voluntarily. Bailey v. State, 42 Tex
Cr 289, 59 SW 900.
Where in addition to the confes-
sion of the accused there is other
evidence of guilt, there is no error
in a refusal to charge that a con-
fession alone is not sufficient proof
of guilt. Franks v. State (TexCr),
45 SW 1013.
Where there is positive testimony
of the robbery alleged, it is not error
to refuse to charge that defendant
may not be convicted on his confes-
sion alone. Murphy v. State, 43
TexCr 515, 67 SW 108.
Washington. State v. Rader, 118
Wash 198, 203 P 68.
' 5 Shannon v. State, 147 Ga 172,
93 SE 86; Goings v. State, 24 Oh
CirCt (N. S.) 145, 30 OhCirDec
628.
16 Alabama. Rice v. State, 204
Ala 104, 85 S 437.
California. People v. Keyes, 178
Cal 794, 175 P 6; People v. Good-
rum, 31 CalApp 430, 160 P 690.
Georgia, Swain v. State, 162 Ga
777, 135 SE 187.
Idaho. A refusal to charge the
law covering the defense of insanity
is not error where there was no evi-
dence of accused tending to show
that he was insane at the time of
the commission of the offense. State
v. Gruber, 19 Idaho 692, 115 P 1.
Missouri. State v. Duckworth
(Mo), 226 SW 15.
Texas. Stokes v. State (TexCr),
70 SW 95; Mikeska v. State, 79
TexCr 109, 182 SW 1127; Marion
v. State, 80 TexCr 478, 190 SW 499
(insanity from use of drugs); John-
son v. State, 81 TexCr 71, 193 SW
674 (insanity by use of intoxicants) ;
Holland v. State, 84 TexCr 144, 206
SW 88.
No instruction on insanity should
be given where there is merely evi-
dence of weak mind. Griffith, v.
State, 47 TexCr 64, 78 SW 347.
Utah. See State v. Green, 86
Utah 192, 40 P2d 961.
Wyoming. Mortimore v. State, 24
Wyo 452, 161 P 766.
17 Brown v. United States, 171
CCA 490, 260 F 752; Neumann v.
State, 116 Fla 98, 156 S 237.
18 State v. Orfanakis, 22 NM 107,
159 P 674.
1 9 Colorado. Orin v. People, 68
Colo 1, 188 P 1114.
Georgia. Jones v. State, 123 Ga
129, 51 SE 312; Griffin v. State, 47
GaApp 188, 170 SE 106.
Illinois. People v. Lawson, 351
111 457, 184 NE 606.
Iowa. An instruction on flight
was justified where the evidence
connected defendant with theft and
it was shown that he left the state
three days thereafter and did not
return until brought back under ar-
rest. State v. Alley, 149 la 196,
128 NW 343.
Missouri. State v. Goodwin (Mo),
217 SW 264.
Where the evidence as to the de-
fendant's guilt was conflicting, and
no clear motive for the crime was
shown, an instruction that flight by
the defendant was a circumstance to
be considered against him, but which
left out of view defendant's explana-
tion of such flight, was erroneous.
State v. Harris, 232 Mo 317, 134
SW 535.
Oregon. An instruction that flight
is a fact which the jury could con-
sider in determining guilt was de-
fective where it failed to advise the
jury to consider other facts, where
there was evidence of other reasons
than fear of arrest causing the de-
fendant to flee. State v. Hogg, 64
Or 57, 129- P 115.
20 Indiana. Harlan v. State, 190
lad 322, 130 NE 413.
120
INSTRUCTIONS — RULES GOVERNING
362
the offense charged,22 included crimes,23 another degree of the
crime,24 defense of another,25 the comparative weight of posi-
Oklahoma. Yarbrough v. State,
13 OklCr 140, 162 P 678.
Texas. Stephens v. State, 80
TexCr 74, 188 SW 976.
2 'Illinois. People v. Kubulis, 298
111 523, 131 NE 595; People v. Cor-
MsMy, 327 111 312, 158 NE 732,
Kentucky. Anderson v. Common-
wealth, 193 Ky 663, 237 SW 45;
Pelfry v. Commonwealth, 255 Ky
442, 74 SW2d 913; Smith v. Com-
monwealth, 257 Ky 669, 79 SW2d 20.
Montana. State v. De Wolfe, 29
Mont 415, 74 P 1084.
Texas. Yeager v. State, 106 Tex
Cr 462, 294 SW 200.
Virginia. Hutzler v. Common-
wealth, 126 Va 828, 101 SE 785.
22 Alabama. Warren v. State, 18
AlaApp 245, 90 S 277.
Where the evidence on a trial for
homicide showed the existence of a
conspiracy between the accused and
his son to murder the decedent, an
instruction was properly refused
which ignored the theory of a con-
spiracy. Morris v. State, 146 Ala
66, 41 S 274.
Arkansas. Humphrey v. State, 74
Ark 554, 86 SW 431.
California. People v. Sheffield,
108 CalApp 721, 293 P 72, 77.
Kentucky. Burkheart v. Common-
wealth, 250 Ky 410, 63 SW2d 471;
Tillman v. Commonwealth, 259 Ky
73, 82 SW2d 222; Bosse v. Common-
wealth, 13 KyL 217, 16 SW 713.
Where in a prosecution for mur-
der it is admitted that the accused
inflicted the fatal wound, there is
no error in the failure to give an
instruction defining conspiracy, not-
withstanding that the indictment
charges conspiracy, for the question
of conspiracy in such a case is not
material. Ross v. Commonwealth,
24 KyL 1621, 59 SW 28.
Missouri. State v. Simpson (Mo),
237 SW 748.
North Carolina. State v. Potter,
134 NC 71£, 47 SE 1.
Oregon. State v. Booth, 82 Or
394, 161 P 700.
Texas. Bennett v. State, 83 TexCr
268, 202 SW 730.
23 California. People v. Barbera,
29 CalApp 604, 157 P 532.
Georgia. Todd v. State, 25 GaApp
411, 103 SE 496.
Illinois. People v. Moore, 276 111
392, 114 NE 906; People v. Preston,
341 111 407, 173 NE 383, 77 ALR
631.
Iowa. State v. Leete, 187 la 305,
174 NW 253; State v. Huckelberry,
195 la 13, 188 NW 587.
Kansas. State v. Barbour, 142
Kan 200, 46 P2d 841.
Kentucky. Wellman v. Common-
wealth, 181 Ky 346, 205 SW 328;
Wattles v. Commonwealth, 185 Ky
486, 215 SW 291.
Louisiana. State v. Fruge, 106
La 694, 31 S 323.
Minnesota. State v. Damuth, 135
Minn 76, 160 NW 196.
Missouri. State v. Mundy (Mo),
76 SW2d 1088.
Nebraska. Strong v. State, 63
Neb 440, 88 NW 772; Thompson v.
State, 85 Neb 244, 122 NW 986.
Nevada. State v. Enkhouse, 40
Nev 1, 160 P 23.
New Mexico. State v. Moss, 24
NM 59, 172 P 199.
New York. People v. Travis, 172
AppDiv 959, 157 NYS 577.
Ohio. Dresback v. State, 38
OhSt 365. See also Bandy v. State,
102 OhSt 384, 131 NE 499, 21 ALR
594; State v. Snouffer, 20- ONP (N.
S.) 65, 27 OhDecCt 386.
Oklahoma. Fooshee v. State, 3
OklCr 666, 108 P 554; Inklebarger
v. State, 8 OklCr 316, 127 P 70-7.
Washington. State v. Murphy,
101 Wash 425, 172 P 544; State v.
Shaffer, 120 Wash 345, 207 P 229.
24 Martin v. State, 48 OklCr 102,
289 P 787.
25 Rodriguez v. State, 89 TexCr
373, 232 SW 512.
363
PERTINENCY
§120
tive and negative testimony,26 dying statements,27 disparity in
size and strength of parties,28 on circumstantial evidence where
the evidence is not wholly circumstantial,29 on accomplice testi-
26 State v. Henson, 105 Kan 581,
185 P 1059.
27 People v. Lim Foon, 29 CalApp
270, 155 P 477; State v. Gaunt, 98
Kan 186, 157 P 447.
28 Thompson v. State, 20 GaApp
176, 92 SE 959; Folds v. State, 23
GaApp 147, 97 SE 872.
2<> Federal. Bedell v. United
States, 78 F2d 358.
Alabama. Wilson v. State, 128
Ala 17, 29 S 560; Bailey v. State,
168 Ala 4, 53- S 296, 390; Spencer
v. State, 228 Ala 537, 154 S 527.
In Burkett v. State, 215 Ala 453,
111 S 34, the court held it no error
to refuse to instruct on circum-
stances in a prosecution for murder
where the killing was admitted by
the defendant.
Arkansas. Brown v. State, 134
Ark 597, 203 SW 1031; Bartlett v.
State, 140 Ark 553, 216 SW 33; Grif-
fin v. State, 141 Ark 43, 216 SW
34; Nordin v. State, 143 Ark 364,
220 SW 473; Purcell v. State, 174
Ark 656, 296 SW 59.
California. People v. De Voe, 123
CalApp 233, 11 P2d 26.
Where there is direct evidence
that defendant committed the crime
charged it is not error to refuse a
charge assuming that a conviction
must necessarily be based on cir-
cumstantial evidence. People v.
Clark, 145 Cal 727, 79 P 434.
Instruction on circumstantial evi-
dence is improper in murder trial
where the defendant admits the
killing. People v. Harvey, 109 Cal
App 111, 292 P 654.
Georgia. Brown v. State, 148 Ga
264, 96 SE 435; Medlin v. State, 149
Ga 23, 98 SE 551; Williamson v.
State, 22 GaApp 78T, 97 SE 195; In-
gram v. State, 24 GaApp 332, 100
SE 773; Walker v. State, 24 GaApp
656, 101 SE 776; McClure v. State,
25 GaApp 549, 103 SE 807; Shiflett
v. State, 26 GaApp 483, 106 SE 750.
Illinois. People v. McGeoghegan,
325 111 337, 156 NE 378 (where there
was testimony of eyewitnesses to
the alleged murder). See People v.
Harrison, 359 111 295, 194 NE 518
(where instruction on circumstantial
evidence was held proper although
there was some direct evidence) ;
People v. Touhy, 361 111 332, 197 NE
849 (kidnapping case).
Indiana. Evans v. State, 199 Ind
55, 155 NE 203.
Kansas. State v. Kennedy, 105
Kan 347, 184 P 734; State v. Davis,
106 Kan 527, 188 P 231.
It was not error to refuse in-
structions on circumstantial evi-
dence, where the circumstances
shown were merely corroborative of
direct proof of guilt. State v. Link,
87 Kan 738, 125 P 70.
Louisiana. State v. Gordon, 115
La 571, 39 S 625.
Minnesota. State v. Kasper, 140
Minn 259, 167 NW 1035.
Missouri. State v. Soper, 148 Mo
217, 49 SW 1007; State v. Dipley,
242 Mo 461, 147 SW 111; State v.
Jackson (Mo), 186 SW 990; State
v. Stegner, 276 Mo 427, 207 SW 826;
State v. Emmons, 285 Mo 54, 225
SW 894; State v. Sanford, 317 Mo
865, 297 SW 73.
New Mexico. State v. McKnight,
21 NM 14, 153 P 76.
Ohio. Gibbs v. State, 7 OLA 374
(instruction on circumstantial evi-
dence was properly refused).
Oklahoma. Scroggins v. State, 54
OklCr 54, 14 P2d 237.
South Carolina. State v. Ready,
110 SC 177, 96 SE 287; State v.
Quick, 141 SC 442, 140 SE 97.
Texas. Camarillo v. State (Tex
Cr), 68 SW 795; Bass v. State, 59
TexCr 186, 127 SW 1020; Wilson v.
State, 79 TexCr 7, 182 SW 891;
Cleveland v. State, 82 TexCr 439,
200 SW 152; Wilson v. State, 83
TexCr 593, 204 SW 321; Wray v.
§120
INSTRUCTIONS — KULES GOVERNING
364
mony where no accomplice has testified,30 or on the presumption
of good character of accused where his character is not attacked,
and there is no evidence on this issue,31 or on the probative
value of the uncorroborated evidence of prosecutrix where there
State, 89 TexCr 632, 232 SW 808;
Pinkerton v. State, 89 TexCr 657,
232 SW 827; Atwood v. State, 90
TexCr 112, 234 SW 85; Coleman v.
State, 90 TexCr 297, 235 SW 898;
Rundell v. State, 90 TexCr 410, 235
SW 908; Boles v. State, 105 TexCr
224, 288 SW 198; Hicks v. State, 128
TexCr 595, 83 SW2d 349.
It was proper to omit instruc-
tions on circumstantial evidence in a
larceny case where accused relied
on a claim of ownership. Smith v.
State, 62 TexCr 124, 136 SW 481.
In Thomas v. State, 108 TexCr
131, 299 SW 408, the court held that,
the alleged confession of the de-
fendant being in evidence, it was
not necessary to instruct on circum-
stantial evidence.
In Davis v. State, 107 TexCr 134,
295 SW 608, the court held it not
necessary to charge as to circum-
stances in a burglary prosecution
where the defendant admitted that
lie entered the house.
Washington. State v. Hunter, 183
Wash 143, 48 P2d 262,
West Virginia. State v. Cook, 69
WVa 717, 72 SE 1025.
30 Alabama, Morris v. State, 17
AlaApp 126, 82 S 574.
California. People v. Ward, 134
Cal 301, 66 P 372.
Georgia. Walker v. State, 118 Ga
34, 44 SE 850; De Witt v. State, 27
GaApp 644, 109 SE 681.
Illinois. People v. Niles, 295 111
525, 129 NE 97; People v. Clark, 211
IlIApp 586.
Kentucky. Elmendorf v. Common-
wealth, 171 Ky 410, 188 SW 483.
Missouri. State v. Pfeiffer, 277
Mo 202, 209 SW 925.
Nevada. State v. Burns, 27 Nev
289, 74 P 983.
New York. See People v. Youlio,
243 NY 519, 154 NE 588.
Oklahoma. Hisaw v. State, 13 Okl
Cr 484, 165 P 636.
It was not error to refuse to in-
struct on law applicable to accom-
plices where the evidence failed to
show that the alleged accomplice
aided, abetted, or encouraged de-
fendant. Haggard v. State, 9 Okl
Cr 236, 131 P 549.
Texas. Gracy v. State, 57 TexCr
68, 121 SW 705; Fisher v. State, 81
TexCr 568, 197 SW 189; White v.
State, 129 TexCr 59, 84 SW2d 465.
3 * Alabama. Grimsley v. State, 20
AlaApp 155, 101 S 156.
California. People v. Hopper, 42
CalApp 499, 183 P 836; People v.
Smith, 81 CalApp 126, 251 P 958.
Georgia. Mixon v. State, 123 Ga
581, 51 SE 580, 107 AmSt 149.
Illinois. Williams v. People, 166
111 132, 46 NE 749.
Missouri. State v. Gartrell, 171
Mo 489, 71 SW 1045; State v. Byrd,
278 Mo 426, 213 SW 35; State v.
Clinkenbeard (MoApp), 185 SW 553;
State v. Perkins (MoApp), 240' SW
851.
New Mexico. State v. Goodrich,
24 NM 660, 176 P 813.
New York. People v. Lingley, 207
NY 396, 101 NE 170, 46 LRA (N.
S.) 342, AnnCas 1913D, 403.
Ohio. Gibbs v. State, 7 OLA 374
(refusal of defendant's requested in-
struction on good character held
proper).
Utah. Where the defendant intro-
duces evidence of good character, it
is error for the court to charge the
jury that they should draw no un-
favorable inference from the defend-
ant from the fact that she offered
no proof as to her good character.
State v. Marks, 16 Utah 204, 51 P
1089.
Virginia. Bobinson v. Common-
wealth, 118 Va 785, 87 SE 553.
365
PERTINENCY
§121
was no such evidence.32 The court may not instruct on docu-
ments exhibited but not introduced in evidence.33
It is error to charge the jury to consider evidence which has
been improperly admitted.34
The court may base his illustrations to explain instructions on
matters not in evidence.35 The court may instruct on matters
of which he has judicial notice though not shown by the
evidence.36
§ 121. Abstract instructions in civil cases.
An abstract proposition should not be given as an instruction.
An abstract proposition may be defined as one having no
application to the evidence adduced37 or, although applicable to
the evidence, too general38 In either case, an abstract proposi-
tion should not be given as an instruction, though correct in
principal, for its tendency is to confuse and mislead the jury.39
32 People v. Currie, 16 CalApp
731, 117 P 941. See also People v.
Smith, 13 CalApp 627, 110 P 333.
33 Camp v. State, 31 GaApp 737,
122 SE 249.
34 People v. Knight, 323 111 567,
154 NE 418.
35 Federal. Wells v. United
States, 168 CCA 555, 257 F 605.
Georgia. Collier v. State, 154 Ga
68, 113 SE 213.
Indiana. Robertson v. State, 199
Ind 122, 155 NE 549.
New York. People v. Reiter, 130
Misc 105, 222 NYS 595.
36 Seebach v. United States, 262
F 885.
37 West v. Butler's Exr., 248 Ky
404, 58 SW2d 662; Cook v. Danaher
Lbr. Co., 61 Wash 118, 112 P 245.
On this definition of abstract, the
rule prohibiting abstract instruc-
tions is merely another way of stat-
ing the rule that instruetions must
be pertinent to the evidence adduced.
See §§ 119 and 120, supra.
38 Pope-Cawood Lumber & Sup-
ply Co. v. Cleet, 236 Ky 366, 33 SW
2d 360.
39 Federal. Baltimore & 0. R. Co.
v. Reeves, 10 F2d 329.
Alabama. Montgomery Moore
Mfg. Co. v. Leeth, 162 Ala 246, 50
S 210; Robinson v. Crotwell, 175 Ala
194, 57 S 23; Nashville Broom &
Supply Co. v. Alabama Broom &
Mattress Co., 211 Ala 192, 100 S 132.
Arkansas. Warren Vehicle Stock
Co. v. Siggs, 91 Ark 102, 120 SW
412; Southern Anthracite Coal Co.
v. Bowen, 93 Ark 140, 124 SW 1048;
Helena Gas Co. v. Rogers, 104 Ark
59, 147 SW 473.
Colorado. Rocky Mountain Motor
Co. v. Walker, 71 Colo 53, 203 P
1095.
Connecticut. New England Fruit
& Produce Co. v. Hines, 97 Conn
225, 116 A 243; Crane v. Hartford-
Connecticut Trust Co., Ill Conn
313, 149 A 782.
Florida. Seaboard Air Line Ry.
v. Royal Palm Soap Co., 80 Fla 800,
86 S 835.
Georgia. Farmers Banking Co. v.
Key, 112 Ga 301, 37 SE 447; Conant
v. Jones, 120 Ga 568, 48 SE 234.
Illinois. Mayer v. Gersbacher, 207
111 296, 69 NE 789; Asmossen v.
Swift & Co., 243 111 93, 90 NE 250;
Dowdey v. Palmer, 287 111 42, 122
NE 102; Diefenthaler v. Hall, 116
IllApp 422; James v. Conklin & Hill,
158 IllApp 640; Brown v. Illinois
Terminal Co., 237 IllApp 145, affd.
in 319 111 326, 150 NE 242; Clark v.
Public Service Co., 278 IllApp 426.
Indiana. Musselman v. Pratt, 44
Ind 126; Salem v. Goller, 76 Ind
291.
121
INSTRUCTIONS — RULES GOVERNING
366
Although the refusal to give such an instruction would not
be prejudicial error, it does not follow that the giving" of such
an instruction is necessarily prejudicial40
Iowa. Ohison v. Sac County Farm-
ers Mut. Fire Ins. Assn., 191 la 479,
182 NW 879.
Instructions should not announce
abstract principles of law, but
should state the law correctly and in
such a way as to guide the jury to
consider the facts in evidence. Mit-
chell v. Des Moines City Ry. Co.,
161 la 100, 141 NW 43.
Kansas. State v. Medlicott, 9
Kan 257; Meyer v. Reimer, 65 Kan
822, 70 F 869.
Kentucky. Louisville v. Uebelhor,
142 Ky 151, 134 SW 152; Mann v.
Watson, 214 Ky 729, 283 SW 1052.
Maine. Lunge v. Abbott, 114 Me
177, 95 A 942.
Maryland. Jones v. Mechanics
Bank, 8 Gill (Md) 123; Mutual Life
Ins. Co. v. Murray, 111 Md 600, 75 A
348; Mitchell v. Slye, 137 Md 89,
111 A 814.
Massachusetts. Howes v. Grush,
131 Mass 207; Merrick v. Betts, 214
Mass 223, 101 NE 131.
Michigan. Mosaic Tile Co. v.
Chiera, 133 Mich 497, 95 NW 537;
Fors v. Fors, 159 Mich 156, 123 NW
579.
Minnesota. McClure v. Browns
Valley, 143 Minn 339, 173 NW 672,
5 ALR 1168; Young v. Yeates, 153
Minn 366, 190 NW 791.
Missouri. Grigsby v. Fullerton,
57 Mo 309; Edwards v. Lee, 147 Mo
App 38, 126 SW 194; Perles v. Feld-
man (MoApp), 28 SW2d 375; First
Nat. Bank v. Aquamsi Land Co.
(Mo App), 70 SW2d 90.
Montana. Newer v. First Nat.
Bank, 74 Mont 549, 241 P 613.
New Hampshire. Smith v. Bank
of New England, 72 NH 4, 54 A 385;
Osgood v. Maxwell, 78 NH 35, 95
A 054.
New Jersey. Mehkanyies v. North
Jersey Street Ry. Co. (NJ), 52 A
280; Altieri v. Public Service R. Co.,
103 NJ 351, 135 A 786; Ploeser v.
Central R. Co. of New Jersey, 92
NJL 490, 105 A 228.
New Mexico. Marcus v. St. Paul
Fire & Marine Ins. Co., 35 NM 471,
1 P2d 567.
North Carolina. Cashwell v. Fay-
etteville Pepsi-Cola Bottling Co., 174
NC 324, 93 SE 901.
Ohio. Coal Co. v. Estievenard, 53
OhSt 43, 40 NE 725; Columbus Ry.
Co. v. Bitter, 67 OhSt 53, 48 OhBull
27, 65 NE 613; Hurlbut v. Jones, 84
OhSt 457, 95 NE 1150; Long v. Tap-
lin-Rice-Clerkin Co., 38 OhApp 546,
177 NE 55; Souder v. Hassenfeldt,
48 OhApp 377, 194 NE 47, 1 OhO
554.
Oklahoma. Fowler v. Fowler, 61
Okl 280, 161 P 227, LRA 1917C, 89.
Oregon. Pacific Export Lbr. Co. v.
North Pacific Lbr. Co., 46 Or 194, 80
P 105; Myrtle Point Mill & Lbr. Co.
v. Clarke, 102 Or 533, 203 P 588.
South Carolina. Harzburg & Co.
v. Southern Ry. Co., 65 SC 539, 44
SE 75.
South Dakota. Williamson v.
Aberdeen Automobile & Supply Co.,
36 SD 387, 155 NW 2.
Texas. Prentice v. Security Ins.
(TexCivApp), 153 SW 925. See also
Ft. Worth & D. C. Ry. Co. v. Mor-
row (TexCivApp), 235 SW 664.
Utah. Smith v. Clark, 37 Utah
116, 106 P 653, 26 LRA (N. S.) 953,
AnnCas 1912B, 1366; Everts v. Wor-
rell, 58 Utah 238, 197 P 1043.
Virginia. Shenandoah Valley R.
Co. v. Moose, 83 Va 827, 3 SE 796.
West Virginia. Claiborne v. Ches-
apeake & 0. Ry. Co., 46 WVa 363,
33 SE 262; Chaney v. Moore, 101
WVa 621, 134 SE 204, 47 ALR 800;
Polen v. Huber, 116 WVa 455, 181
SE 718.
40 Alabama. Marbury Lbr. Co. v.
Westbrook, 121 Ala 179, 25 S 914.
California. Smith v. Pacific Grey-
hound Corp., 139 CalApp 696, 35 P
2d 169.
Illinois. Taylor v. Felsing, 164
111 331, 45 NE 161; Neumann v.
Neumann, 147 IllApp 218; Forney v.
Schlachter, 168 IllApp 295; Hanke
367 PERTINENCY § 122
A definition of a term used in other instructions is not
abstract.4 '
There is a plain violation of the rule where the court gives
abstract propositions pertaining to negligence and contributory
negligence and applies such instructions only to the claimed
negligence of the defendant but does not apply them to the
question of contributory negligence.42 The instruction on the
last clear chance doctrine is abstract where there is no evi-
dence on contributory negligence on the part of the plaintiff.43
And in an action against a city for personal injuries alleged
to have been sustained by falling from a sidewalk into an un-
guarded excavation, where there was no issue of gross negli-
gence and no evidence to support such a claim, it was held errone-
ous to instruct that "when the negligence of the defendant is
so gross as to imply a disregard for consequences, or a willing-
ness to inflict the injury, the plaintiff may recover, though he
be a trespasser or did not use ordinary care to avoid the in-
jury."44 In a suit for the conversion of a note, an instruction
regarding the effect and operation of an agreement for extension
and the materiality of the consideration was properly refused
where there was no question in the case to which the instruction
could be applied.45
§ 122. Abstract instructions in criminal prosecutions.
In criminal prosecutions, an abstract proposition should not
be given as in instruction.
Practically the same statements made regarding abstract
instructions in civil cases may be made regarding abstract
propositions in criminal cases. An abstract instruction is either
one having no application to the evidence or one that is too gen-
eral. Again, in either case, an abstract charge should not be
given though it asserts a correct legal proposition.46 Such an
v. Chicago Rys. Co., 208 IllApp 293; West Virginia. Morrison v. Roush,
Fisher v. Johnson, 238 IllApp 25; 110 WVa 398, 15& SE 514.
Barnstable v. Calandro, 270 IllApp 4I Quisenberry v. Stewart (Mo),
57, 219 SW 625; Burgher v. Neidorp
Kentucky. Pope-Cawood Lumber (MoApp), 50 SW2d 174.
& Supply Co. v. Gleet, 236 Ky 366, 42 Polluck v. Minneapolis & St.
33 SW2d 360. L. Ry. Co., 45 SD 210', 186 NW 830.
Missouri. Hemphill v. Kansas See Listen v. Miller, 113 WVa 730,
City, 100 MoApp 563, 75 SW 179. 169 SE 398.
Montana. Mellon v. Kelly, 99 Mont 43 Sanders v. Taber, 79 Or 522,
10, 41 P2d 49. 155 P 1194.
Ohio. Reed v. McGrew, 5 Oh 375, 44 Salem v. Goller, 76 Ind 291.
Wright 105; Gill v. Sells, 17 OhSt 45Hide & Leather Nat. Bank v,
195; Schneider v. Hosier, 21 OhSt Alexander, 184 111 416, 56 NE 809.
98. 46 Federal United States v. Stil-
§122
INSTRUCTIONS — RULES GOVERNING
368
instruction may work a reversal where it misleads the jury to
the prejudice of the defendant.47
The character of abstract attaches to instructions given over
to the rights of society and the enforcement of the criminal
laws,48 or which advise the jury that it is as much their duty
son, 254 F 120. See Jenkins v. United
States, 59 F2d 2.
Alabama. Montgomery v. State,
160 Ala 7, 49 S 902; Osborn v. State,
198 Ala 21, 73 S 985; Minor v. State,
15 AlaApp 556, 74 S 98; Harmon v.
State, 20 AlaApp 254, 101 S 353;
Miller v. State, 21 AlaApp 653, 111
S 648; Wingard v. State, 26 Ala
App 383, 161 S 107.
In a prosecution for murder com-
mitted in an attempt to escape from
a penitentiary, an instruction was
abstract which charged that an at-
tempt to escape from a penitentiary
was not a felony. Miller v. State,
145 Ala 677, 40 S 47.
In a requested charge in a homi-
cide case based on injury from au-
tomobile driven by the defendant, a
requested charge to the effect that
the jury could not convict the de-
fendant for the offense of speeding
was held properly refused as ab-
stract. Jones v. State, 21 AlaApp
234, 109 S 189.
Arkansas. McCain v. State, 132
Ark 497, 201 SW 840; Lomax v.
State, 165 Ark 386, 264 SW 823;
Sims v. State, 171 Ark 799, 286 SW
981.
California. People v. Buckley, 143
Cal 375, 77 P 169; People v. Rich-
ardson, 83 CalApp 302, 256 P 616.
Florida. Miller v. State, 76 Fla
518, 80 S 314.
Illinois. People v. Findley, 286 111
368, 121 NE 608; People v. Karpo-
vich, 288 111 268, 123 NE 324; People
v. Adams, 289 111 339, 124 NE 575;
People v. Arthur, 314 111 296, 145
NE 413 (alibi where no evidence on
question) .
Iowa. State v. Alexander (la),
169 NW 657.
Kentucky. Greer v. Common-
wealth, 111 Ky 93, 23 KyL 489, 63
SW 443; Eobinson v. Common-
wealth, 149 Ky 291, 148 SW 45.
Massachusetts. Commonwealth v.
John T. Connor Co., 222 Mass 299,
110 NE 301, LRA 1916B, 1236, Ann
Cas 1918C, 337; Commonwealth v,
Mara, 257 Mass 198, 153 NE 793.
Minnesota. State v. Ford, 151
Minn 382, 186 NW 812.
Mississippi. Refusal of abstract
charge is not error. Scott v. State,
166 Miss 6, 148 S 239.
Missouri. State v. Holmes, 239
Mo 469, 144 SW 417; State v. Mar-
shall, 317 Mo 413, 297 SW 63.
Montana. State v. Trosper, 41
Mont 442, 109 P 858; State v. Bel-
land, 59 Mont 540, 197 P 841.
Ohio. Dresback v. State, 38 OhSt
365; Bandy v. State, 102 OhSt 384,
131 NE 499, 21 ALR 594.
Oklahoma. Conley v. State, 15 Okl
Cr 531, 179 P 480; Roddie v. State,
19 OklCr 63, 198 P 342.
Texas. Stewart v. State (TexCr),
77 SW 791; Reagan v. State, 84 Tex
Cr 468, 208 SW 523.
Vermont. Vermont Box Co. v.
Hanks, 92 Vt 92, 102 A 91.
West Virginia. State v. Long, 88
WVa 669, 108 SE 279; State v. Staf-
ford, 89 WVa 301, 109 SE 326; State
v. Wilson, 95 WVa 525, 121 SE 726.
47 Alabama. Beck v. State, 80
Ala 1. See also Culliver v. State, 15
AlaApp 375, 73 S 556.
Florida. Neumann v. State, 116
Fla 98, 156 S 237.
Illinois. People v. Lembke, 320 111
553, 151 NE 535. But see People
v. Schullo, 360 111 580, 196 NE 723.
Oklahoma. Welch v. State, 16 Okl
Cr 513, 185 P 119.
48 Alabama. An instruction was
properly refused as abstract and ar-
gumentative which told the jury
that it was for them to say whether
the same punishment should be in-
flicted on the defendant who had
taken the life of a turbulent, re-
vengeful, bloodthirsty, dangerous
369 PERTINENCY § 123
to acquit the innocent as to convict the guilty,40 and to in-
structions which recite abstract propositions of law quoted from
textbooks without indicating to what class of evidence in the
case they apply.50 So, an instruction is abstract in which the
court says : "I charge you, there is a difference between a prima
facie case and a conclusive case."51 An instruction was held
abstract which said that the mere possession of any article,
whether it can or cannot be used in the perpetration of a crime,
is not of itself sufficient to convict accused but is merely a cir-
cumstance for the consideration of the jury.32 It is proper to
refuse, as abstract, an instruction which tells the jury that the
return of an indictment against the defendant is no evidence
of his guilt.53
But an instruction in the language of the statute under which
an indictment was found is not objectionable as abstract and
not based on the evidence.54 And so it has been held that a
requested charge was not abstract where the facts hypothesized
therein had been testified to by the defendant.55 So, an instruc-
tion is not abstract where it is preliminary to and part of
another instruction which concretely applies itself to the facts.56
§ 123. Ignoring issues in civil cases.
The charge must cover all the material issues in the case.
Not only must the charge cover all the material issues in
the case,57 but it must also cover the contentions of the parties
man who had recently, only a few sl Levine v. State, 16 AlaApp
hours before, violated and outraged 686, 81 S 134.
the person of defendant as though S2 People v. Weber, 149 Gal 325,
the deceased had been a man of good 86 P 671.
character and peaceable disposition. S3 Gulley v. State, 21 AlaApp
Harrison v. State (Ala), 40 S 57. 493, 109 S 527.
Illinois. An instruction was ab~ 54 White v. People, 179 111 356, 53
stract which contained a general dis- NE 570. See People v. Adams, 79
sertation on the rights of accused to CalApp 373, 249 P 536.
life and liberty, the duties of jurors, 5S Dial v. State, 159 Ala 66, 49 S
and the importance of convicting the 230, 133 AmSt 19.
guilty, informing the jury as to the 56 State v. Yocum (MoApp), 205
method by which they were chosen, SW 232.
the reason why they were impaneled, S7 Federal. Alaska Anthracite R.
and that they were selected as intel- Co. v. Moller, 168 CCA 515, 257 P
ligent and qualified jurors. People 511.
v. Davidson, 240 111 191, 88 NE Alabama. Sloss-Sheffield Steel &
565. Iron Co. v. Smith (Ala), 40 S 91;
Minnesota. State v. Ronk, 91 R. D. Burnett Cigar Co. v. Art Wall
Minn 419, 98 NW 334. Paper Co., 164 Ala 547, 51 S 263;
49 State v. Blackwood, 162 La 266, Sloss-Sheffield Steel & Iron Co. v.
110 S 417. Smith, 166 Ala 437, 52 S 38; Pelham
80 State v. Prater, 52 WVa 132, Site & Co. v. Herzberg-Loveman
43 SE 230. Diy Goods Co., 194 Ala 237, 69 S
123
INSTRUCTIONS — RULES GOVERNING
370
on every substantial Issue,38 and be broad enough to present
881; Brown v. Shorter, 195 Ala 692,
71 S 103; Chenault v. Stewart, 198
Ala 288, 73 S 501; Seaboard Air
Line Ry. Co. v. Pemberton, 202 Ala
55, 791 S 3931; Herring- v. Louisville
& N. R. Co., 203 Ala 136, 82 S 166;
Mobile Light & R. Co. v. Gadik, 211
Ala 582, 100' S 837; Hooper v. Her-
ring, 14 AlaApp 455, 70 S 308; J. T.
Camp Transfer Co. v. Davenport, 15
AlaApp 507, 74 S 156.
Instructions are erroneous where
they tend to limit the recovery to
part only of the counts in the com-
plaint. Prattville Cotton Mills Co. v,
McKinney, 178 Ala 554, 59 S 498.
A defendant sued for failure to
furnish water to plaintiff is not en-
titled to a charge that the plaintiff
cannot recover if such failure was
caused by accident, where such in-
struction ignores a requirement that
the defendant exercise due diligence
in giving notice to the plaintiff. Ala-
bama Water Co. v. Wilson, 214 Ala
364, 107 S 821.
Arkansas. Bayles v. Daugherty,
77 Ark 201, 91 SW 304; Common-
wealth Public Service Co. v. Lind-
say, 139 Ark 283, 214 SW 9.
Colorado, Denver & R. G. Ry. Co.
v. lies, 25 Colo 19, 53 P 222; Alley
v. Tovey, 78 Colo 532, 242 P 999.
Georgia. Dodge Bros. v. Hart, 24
GaApp 633, 101 SE 693.
Illinois. Costly v. McGowan, 174
111 76, 50 NE 1047; Hill v. Dough-
erty, 161 IlIApp 553; Flennor v.
Cleveland, C., C. & St. L. R. Co., 163
IlIApp 536; Trainer v. Baker, 195
IlIApp 216; Smith v. Kewanee Light
& Power Co., 196 IlIApp 118; Kresin
v. Brotherhood of American Yeo-
man, 217 IlIApp 448.
Indiana. An instruction undertak-
ing to state what is necessary to
maintain an action or defense must
be complete and correct. New v.
Jackson, 50 IndApp 120, 95 NE 328.
Iowa. Faust v. Hosford, 119 la 97,
93 NW 58.
Kentucky. Louisville & N. R. Co.
v. Allen's Admr., 174 Ky 736, 192
SW 863.
Maryland. Bluthenthal & Bickart
v. May Advertising Co., 127 Md 277,
96 A 434; Booth Packing Co. v.
Greuner, 129 Md 392, 99 A 714;
Waddell v. Phillips, 133 Md 497, 105
A 771; Patapsco Loan Co. v. Hobbs,
134 Md 222, 106 A 619; Rice v. Bal-
timore Apartments Co., 141 Md 507,
119 A 364.
Massachusetts. Rogers v. French,
214 Mass 337, 101 NE 988.
Michigan. Commercial Bank v.
Chatfield, 121 Mich 641, 80 NW 712;
Piowaty v. Sheldon, 167 Mich 218,
132 NW 517, AnnCas 1913A, 610.
Missouri. Grady v. Royar (Mo),
181 SW 428; Thomas v. Thomas
(Mo), 186 SW 993; Funk v. Fulton
Iron Works Co., 311 Mo 77, 277 SW
566: Head v, M. E. Leming Lbr. Co.
(Mo), 281 SW 441; Ern v. Rubin-
stein, 72 MoApp 337; Beggs v. Shel-
ton, 173 MoApp 127, 155 SW 885;
Crossley v. Summitt Lbr. Co. (Mo
App), 187 SW 113; Van Zandt v. St.
Louis Wholesale Grocer Co., 196 Mo
App 640, 190 SW 1050; Farmers Sav.
Bank v. American Trust Co., 199
MoApp 491, 203 SW 674; Jones v.
St. Louis-San Francisco Ry. Co., 226
MoApp 1152, 50 SW2d 217.
Nebraska. Globe Oil Co. v. Powell,
56 Neb 463, 76 NW 1081; Kor v.
American Eagle Fire Ins. Co., 104
Neb 610, 178 NW 182.
Nevada. Ramezzano v. Avansino,
44 Nev 72, 189 P 861.
New Hampshire. Goddard v. Ber-
lin Mills Co., 82 NH 225, 131 A 601.
New Jersey. Mettie v. De Bag-
hian, 2 NJMisc 990, 126 A 419.
New York. Leonard v. Brooklyn
Heights R. Co., 57 AppDiv 125, 67
NYS 985; Badger v. Scobell Chem.
Co., 221 AppDiv 490, 224 NYS 648
(where the question of the statute
of frauds was ignored).
Ohio. Acklin Stamping Co. v.
Kutz, 98 OhSt 61, 120 NE 229>, 14
ALR 812; Payne v. Vance, 103 OhSt
59, 133 NE 85; Grant-Holub Co. v.
Goodman, 23 OhApp 540, 156 NE
151; Conte v. Mill & Mine Supply
Co., 24 OhApp 488, 156 NE 233;
371
PERTINENCY
§123
all material phases of the Issue to which they relate.59 If there
are two or more counts in a complaint, it is not proper to in-
struct that defendant is entitled to a verdict on one of the counts
if the jury believe the evidence.60
Obviously, there is no requirement to instruct on abandoned
issues.61 And where an instruction does not attempt to cover
John Hancock Mut. Life Ins. Go. v.
Hatchie, 42 OhApp 398, 182 NE 53;
Johnson v. Youngstown, 14 OLA 117;
East Ohio Gas Co. v. Cunning, 15
OLA 152.
Oregon. Buhl Malleable Co. v.
Cronan, 59 Or 242, 117 P 317; Mount
v. Welsh, 118 Or 568, 247 P 815.
Pennsylvania. Kennedy v. Forest
Oil Co., 199' Pa 644, 49 A 133.
Rhode Island. Leiter v. Lyons, 24
RI 42, 52 A 78.
South Carolina. Lancaster v. Lee,
71 SC 2803 51 SE 139.
Texas. First Nat. Bank v. Man-
gum (TexCivApp), 194 S"W 647.
Vermont. Douglass & Varnum v.
Morrisville, 89 Vt 393, 95 A 810.
Virginia. Norfolk & W. Ry. Co.
v. Mann, 99 Va 180, 37 SE 849; At-
lantic Coast Line R. Co. v. Caple's
Admx., 110 Va 514, 66 SE 855;
Trauerman v. Oliver, 125 Va 458, 99
SE 647.
Washington. Riverside Land Co.
v. Pietsch, 35 Wash 210, 77 P 195.
West Virginia. Snider v. Robinett,
78 WVa 88, 88 SE 599.
Wisconsin. Dabareiner v. Weis-
flog, 253 Wis 23, 33 NW2d 220.
Wyoming. An instruction which
ignores an admission in the plead-
ings is properly refused. Mutual
Life Ins. Co. v. Summers, 19 Wyo
441, 120 P 185.
58 Georgia. Freeman v. Nashville,
C. & St. L. Ry. Co., 120 Ga 469, 47
SE 931.
Missouri. Laughlin v. Gerardi, 67
MoApp 372; Miller v. Missouri &
Kansas Tel. Co., 141 MoApp 462, 126
SW 187.
North Carolina* Kimbrough v.
Hmes, 180 NC 274, 104 SE 684;
Smith v. Seaboard Air Line Ry. Co.,
182 NC 290, 109 SE 22.
59 Alabama. Law v. Gulf States
Steel Co., 229 Ala 305, 156 S 835.
Arkansas. Smith v. Arkansas
Power & Light Co., 191 Ark 389, 86
SW2d 411.
Georgia. Hardeman v. Ellis, 162
Ga 664, 135 SE 195.
Illinois. An instruction was prop-
erly refused where it ignored the
theory of recovery supported by a
good count of the declaration. Swan-
son v. Chicago City Ry. Co., 148 111
App 135, affd. in 242 111 388, 90 NE
210.
Indiana. A single instruction
need not give all the law applicable
to the case, but is sufficient if it
correctly states the law applicable
to its sphere. Harrod v. Bisson, 48
IndApp 549, 93 NE 1093.
Iowa. Keller v. Gartin, 220 la 78,
261 NW 776.
Kentucky. Comer v. Yancy, 251
Ky 461, 65 SW2d 459.
Mississippi. J. C. Penney Co. v.
Morris, 173 Miss 710, 163 S 124.
Missouri. Harting v. East St.
Louis Ry. Co. (Mo), 84 SW2d 914
(admitted facts ignored) ; Nimmo v.
Perkinson Bros, Constr. Co. (Mo),
85 SW2d 98; Aronson v. Maryland
Casualty Co., 222 MoApp 490, 280
SW 724; Counts v. Thomas (Mo
App), 63 SW2d 416.
Ohio. Gaff Estate Co. v. Grote, 22
OhApp 44, 153 NE 919.
Oklahoma. National Life & Ace.
Ins. Co. v. Roberson, 169 Okl 136, 36
P2d 479.
West Virginia. Instructions which
ignore the direct and vital issue in
a case are erroneous though they
cover subsidiary and inconclusive is-
sues. Mylius v. Raine- Andrew Lbr.
Co., 69 WVa 346, 71 SE 404.
60 Smith & Sons v. Gay, 21 Ala
App 130, 106' S 214; Thames v. Bat-
son & Hattson Lbr. Co., 143 Miss 5,
108 S 181.
61 Carney v. Anheuser-Busch
§123
INSTRUCTIONS — RULES GOVERNING
372
the entire case and a right of recovery is not based upon it, no
objection can arise from the mere fact that it omits an issue
or a point in the case, for the instructions are all to be considered
together.62
Furthermore, where a correct instruction has been given at
the request of either of the parties, the fact that the court sub-
sequently ignores the issue in charging of its own motion will
not constitute error.63
Illustrations of the application of the rule follow.
Negligence. The instruction in the action for negligence
should cover such matters in issue as contributory negligence,64
Brew. Assn., 150 MoApp 437, 131
SW 165.
62 Norton v. Kramer, 180 Mo 536,
79 SW 699.
63 Ennulat v. Taylor, 127 CalApp
420, 15 P2d 900; Minden v. Vedene,
72 Neb 657, 101 NW 330.
e* Federal. Shell Pipe Line Co. v.
Robinson, 66 F2d 861.
Alabama. Johnson v. Louisville
& N. R. Co., 203 Ala 86, 82 S 100;
Dudley v. Alabama Utilities Service
Co., 225 Ala 531, 144 S 5; J. T.
Camp Transfer Co. v. Davenport, 15
AlaApp 507, 74 S 156.
An instruction should not ignore
the alleged negligence of the de-
fendant after he discovered his peril.
Bradley v. Powers, 214 Ala 122, 106
S 799.
Arizona. Bruno v. Grande, 31 Ariz
206, 251 P 550.
California. Lindenbaum v. B ar-
bour, 213 Cal 277, 2 P2d 161; Bel-
linger v. Hughes, 31 CalApp 464,
160 P 838; Brown v. Lemon Cove
Ditch Co., 36 CalApp 94, 171 P 705;
Beyerle v. Clift, 59 CalApp 7, 209
P 1015; Miner v. Dabney-Johnson
Oil Corp. (CalApp), 22 P2d 265, affd.
in 219 Cal 580, 28 P2d 23.
Colorado* Fox Colorado Theater
Co. v. Zipprodt, 89' Colo 446, 3 P2d
798.
Illinois. Conrad v. St. Louis, S. &
P. R. Co., 201 IllApp 276.
Indiana. Union Trac. Co. v.
Ringer, 199 Ind 405, 155 NE 826;
Southern Indiana Gas & Elec. Co.
v. Harrison, 85 IndApp 350, 151 NE
703 (holding that element of last
clear chance should not be omitted
from instruction on contributory
negligence).
Failure of instruction to take into
account the question of contributory
negligence does not make the in-
struction bad, when it does not pur-
port to state the entire law of the
case, and the question is covered in
other instructions. Indianapolis Trac.
& Terminal Co. v. Howard, 190 Ind
97, 128 NE 35.
See Gerow v. Hawkins, 99 IndApp
352, 192 NE 713 (where the instruc-
tion was held not to have ignored
contributory negligence) .
Missouri. Laurent v. United Rys.
Co. (Mo), 191 SW 992; Daniel v.
Pryor (Mo), 227 SW 102; Pence v.
Kansas City Laundry Service Co.,
332 Mo 930, 59 SW2d 633; Lynch
v. Missouri-Kansas-Texas R. Co., 333
Mo 89, 61 SW2d 918; Allison v.
Dittbrenner (MoApp), 50 SW2d 199;
Long v. Binnicker, 228 MoApp 193,
63 SW2d 831.
New York. Maher v. Buffalo, R.
& P. Ry. Co., 217 AppDiv 532, 216
NTS 629.
Oklahoma. Kansas City, M. & 0.
Ry. Co. v. McDaniel, 65 Okl 268,
165 P 1144.
Texas. Adams & Washam v.
Southern Trac. Co. (TexCivApp),
188 SW 275; Chicago, R. I. & G. R.
Co. v. Wentzel (TexCivApp), 214 SW
710; Texas & Pacific Ry. Co. v.
Hancock (TexCivApp), 59 SW2d 313.
Virginia. Belcher v. Goff Bros.,
145 Va 448, 134 SE 588.
West Virginia. Petry v. Cabin
373
PERTINENCY
§123
ordinary care,65 assumption of risk,66 last clear chance,67 negli-
gence of fellow servants,68 unavoidable accident,69 failure of
employer to furnish safe places for work70 or to warn of
danger,71 the humanitarian doctrine,72 doctrine of res ipsa
loquitur,73 statute of limitations,74 and the essential element
of proximate cause.75
Creek Consol. Coal Co., 77 WVa 654,
88 SE 105; Evans v. Kirson, 88 WVa
343, 106 SE 647; Swiger v, Runnion,
90 WVa 322, 111 SE 318; Ewing v.
Chapman, 91 WVa 641, 114 SE 158;
Nichols v. Raleigh Wyoming Min.
Co., 113 WVa 631, 169 SE 451.
65 Simensky v. Zwyer, 40 OhApp
275, 178 NE 422.
66 Arkansas. Des Arc Oil Mill,
Inc. v. McLeod, 137 Ark 615, 206
SW 655; Edgar Lbr. Co. v. Denton,
156 Ark 46, 245 SW 177; Postal
Telegraph-Cable Co. v. White, 188
Ark 361, 66 SW2d 642.
An instruction on assumption of
risk must include element of ap-
preciation of danger. Missouri Paci-
fic R. Co. v. Carey, 138 Ark 563,
212 SW 80'.
Georgia. Gray v. Garrison, 49
GaApp 472, 176 SE 412.
Indiana. Decatur v. Eady, 186
Ind 205, 115 NE 577, LRA 1917E,
242; New York C. & St. L. R. Co.
v. Peele, 88 IndApp 532, 164 NE
705.
Missouri. Bennett v. G. T. O'Maley
Tractor Co., 209 MoApp 619, 238 SW
144.
Texas. Swann v. Texas & Paci-
fic Ry. Co. (TexCivApp), 200 SW
1131.
Vermont. Watterlund v. Billings,
112 Vt 256, 23 A2d 540.
Washington. Belkin v. Skinner &
Eddy Corp., 119 Wash 80, 204 P
1046.
67 Haber v. Pacific Elec. Ry. Co.,
78 CalApp 617, 248 P 741; Rasmus-
sen v. Fresno Trac. Co., 138 CalApp
540, 32 P2d 1091. See Central of
Georgia Ry. Co. v. Pruden, 21 Ala
App 281, 107 S 716.
68 Russell v. Williams, 168 Miss
181, 150 S 528, 151 S 372; El Paso
& S. W. R. Co. v. Lovick (TexCiv
App), 210 SW 283.
69 Booth v. Frankenstein, 209 Wis
362, 245 NW 191.
70 Southwestern Portland Cement
Co. v. Challen (TexCivApp), 200 SW
213.
7 ' Musgrave v. Great Falls Mfg.
Co., 86 NH 375, 169 A 583.
72 Washington Ry. & Elec. Co. v.
Upperman, 47 AppDC 219. See
Bartner v. Darst (Mo), 285 SW 449
(where the charge was approved);
Elders v. Missouri Pacific R. Co.
(MoApp), 280 SW 1048.
73 Glasco Elec. Co. v. Union Elec.
Light & Power Co., 332 Mo 1079,
61 SW2d 955.
74 Collier v. Thompson, 180 Ark
695, 22 SW2d 562.
75 California. Shipley v. San
Diego Elec. Ry. Co., 106 CalApp 659,
289 P 662.
Indiana. Utterback v. Gootee, 197
Ind 206, 150 NE 101; Chicago, L
& L. Ry. Co. v. Prohl, 64 IndApp
302, 115 NE 962; Bonham v. Menden-
hall, 98 IndApp 189, 188 NE 695.
Michigan. Richardson v. Wil-
liams, 249 Mich 350, 228 NW 766.
Missouri. Miller v. Collins, 328
Mo 313, 40 SW2d 1062.
Montana. Kansier v. Billings, 56
Mont 250', 184 P 630; Stroud v. Chi-
cago M. & St. P. Ry. Co., 75 Mont
384, 243 P 1089.
Texas. Panhandle & S. F. Ry.
Co. v. Kornegay (TexComApp), 227
SW 1100; Pearson v. Texas & N. 0.
Ry. Co. (TexComApp), 238 SW 1108.
Utah. Sutton v. Otis Eiev. Co.*
68 Utah 85, 249 P 437.
West Virginia. Slaven v. Balti-
more & 0. R. Co.. 114 WVa 315. 171
SE 818.
§ 123 INSTRUCTIONS — RULES GOVERNING 374
In damage action against railway it is error to charge that
negligence could be found against the defendant for failure
to keep flagman at crossing, where the speed of the train and
the way in which it was being operated were ignored in the
charge.76 In an action against a physician for malpractice in
leaving sponge in patient's body, it was held error to instruct
that the defendant was not liable if his failure to remove the
sponge was due to the patient's condition, for the question of his
negligence was thereby decided by the court rather than the
jury.77
Where an instruction stated that a railroad company is not
liable for fires set out by its locomotives where it employs com-
petent engineers and its engines are equipped with proper
spark arrestors, the instruction was held erroneous as excluding
negligence in keeping its right of way clear of combustibles.78
An instruction that an employee assumed the risk where he
knew that cogs on machinery were open and dangerous was
properly refused as ignoring an issue of promise to repair which
had support in the evidence.79
Fraud. The instruction on false representations should in-
clude the element of reliance on such representations.80
Damages. In a slander case an instruction should not ignore
the question of mitigation of damages, in telling the jury that
it would be no defense, as against actual damages, that the de-
fendant published the words in good faith with a belief in their
truth.81
Property. In an action of ejectment where there is a claim
of adverse possession, a charge ignoring this feature is rightly
refused.82 An instruction as to adverse possession is erroneous
if it ignores the element of hostile occupancy.83
Defenses. Where a plea of set-off is interposed and evidence
is given thereunder, the jury should be permitted to consider
this defense.84 So also where the defendant's answer is in the
nature of a plea in abatement, and there is evidence tending to
76 Chicago, I. & L. Ry. Co. v. Kansas. Griffin v. Kaufman, 110
American Trust Co., 85 IndApp 193, Kan 182, 203 P 924.
153 NE 419. West Virginia. Ohio Valley Bank
77 Manley v, Coleman, 19 OhApp v. Berry, 85 WVa 95, 100 SE 875.
284, 22 OLR 242. 8I Aldridge v. Zorn (MoApp), 287
78 Denny v. Atlantic Coast Line SW 650.
R. Co., 179 NC 529, 103 SE 24. 82 Pearson v. Adams, 129 Ala 157,
79 A. L. Clark Lbr. Co. v. Johns, 29 S 977.
98 Ark 211, 135 SW 892. 83 Sackett v. Miniard, 219 Ky 765,
801 Arizona. Morenci Southern Ry. 294 SW 487.
Co. v. Monsour, 21 Ariz 148, 185 P 84 Colwell v. Brown, 103 IllApp 22.
938.
375
PERTINENCY
§124
support it, the court errs In ignoring the issue and giving no
instruction with reference thereto.85
False imprisonment. Where the action is for an unlawful
arrest, the question of good faith of the defendant should not be
ignored.86
Contracts. If a written contract was the only one proved, it
is proper for a charge to ignore an alleged oral contract.87 So,
the court may not ignore the issue of capacity to execute re-
leases.88
§ 124. Ignoring evidence in civil cases.
The court should not give instructions based upon a part
only of the material evidential facts.
A charge must not call special attention to a part only
of the evidence and disregard other evidence; the jury should
be permitted to consider the evidence in its entirety.89
85 Steele v. Crabtree, 130 la 313,
105 NW 753.
86 St. Louis, I. M. & S. Ry. Co. v.
Vaughan, 122 Ark 436, 183 SW 980.
87 Atlantic Nat. Bank v. Korrick,
29 Ariz 468, 242 P 1009, 43 ALR
1184.
sa Schaff v. Hollin (TexCivApp),
213 SW 279.
89 Federal. Erie R. Co. v. Pu-
rucker, 244 US 310', 61 LEd 1166,
37 SupCt 629, LRA 1917F, 1184;
Manchester Mill & Elev. Co. v.
Strong, 146 CCA 72, 231 F 876;
Young v. Travelers Ins. Co., 68 F2d
83, revg. 2 FSupp 624 (comment by
court on testimony of certain wit-
nesses wherein court failed to dis-
cuss contradictory statements elic-
ited on their cross-examination).
Alabama. Elliott v. Howison, 146
Ala 568, 40 S 1018; Ray v. Bran-
nan, 196 Ala 113, 72 S 16; Keller
v. Jones & Weeden, 196 Ala 417,
72 S 89; O'Brien v. Birmingham Ry.,
Light & Power Co., 197 Ala 97, 72
S 343; Oil-Weil Supply Co. v. West
Huntsville Cotton Mills Co., 198 Ala
501, 73 S 899; Bradley v. Powers,
214 Ala 122, 106 S 799; Gulf Trad-
ing Co. v. Radcliff, 216 Ala 645, 114
S 308; Metropolitan Life Ins. Co. v.
James, 228 Ala 383, 153 S 759;
Southern Ry. Co. v. Freeman, 16
AlaApp 6&7, 81 S 135; Allison v.
Fuller-Smith & Co., 20 AlaApp 216,
101 S 626.
Arkansas. Raymond v. Raymond,
134 Ark 484, 204 SW 311.
California. Berliner v. Travelers
Ins. Co., 121 Cal 451, 53 P 922;
Fidelity & Casualty Co. v. Paraffine
Paint Co., 188 Cal 184, 204 P 1076;
Sinan v. Atchison, T. & S. F. Ry.
Co., 103 CalApp 703, 284 P 1041;
Renter v. Hill, 136 CalApp 67, 28
P2d 390; Keller v. Pacific Tel. & T.
Co., 2 CalApp2d 513, 38 P2d 182.
Connecticut. Bullard v. De Cor-
dova, 119 Conn 262, 175 A 673.
Georgia. Moore v. Walton, 158
Ga 408, 123 SE 812.
Illinois. Dowdey v. Palmer, 287
111 42, 122 NE 102; Chicago Hy-
draulic Press Brick Co. v. Campbell,
116 IHApp 322; Alschuler & Sons v.
Anderson, 142 IHApp 323; Compton
v. Compton, 204 IHApp 629; Stein-
berg v. Schwartz, 219 IllApp 138;
West v. Cincinnati, I. & W. R. Co.,
240 IllApp 512.
Where the t evidence is very slight
on a certain matter, the court may
ignore it with respect to such mat-
ter. Walker v. Struthers, 273 111
387, 112 NE 961.
Indiana. Decatur v. Eady, 186
Ind 205, 115 NE 577, LRA 1917E,
242; Buchanan v. Morris, 198 Ind
79, 151 NE 385; Brown v. Terre
§124
INSTRUCTIONS — RULES GOVERNING
376
Haute, I. & E. Trac. Co., 63 IndApp
327, 110 NE 703, 113 NE 313 (ig-
noring evidence of retention of fare
after ejecting passenger).
Iowa. Hanson v. Anamosa, 177
la 101, 158 NW 591.
A requested instruction was im-
proper where it told the jury that
the negligence of plaintiff in not
having a release read would estop
him from claiming fraud in its pro-
curement. Farwark v. Chicago, M.
& St. P. Ry. Co., 202 la 1229, 211
NW 875.
Kentucky. L. E. Meyers' Co. v.
Logue's Admr., 212 Ky 802, 280 SW
107; Aetna Ins. Co. v. Weekly, 232
Ky 548, 24 SW2d 292.
Maryland. Commonwealth Bank
v. Goodman, 128 Md 452, 97 A 1005;
State v. C. J. Benson & Co., 129 Md
693, 100 A 505; Winslow v. Atz,
168 Md 230, 177 A 272.
Massachusetts. Dolphin v. Plum-
ley, 175 Mass 304, 56 NE 281;
Merchants Nat. Bank v. Marden,
Orth & Hastings Co., 234 Mass 161,
125 NE 384; Tully v. Mandell, 269
Mass 307, 168 NE 923; Gushing v.
Jolles, 292 Mass 72, 197 NE 466.
Michigan. Sikori v. Fellowcraft
Club, 189 Mich 235, 155 NW 495.
Mississippi. Bank of Tupelo v.
Hulsey, 112 Miss 632, 73 S 621;
Waddle v. Sutherland, 156 Miss 540,
126 S 201.
Missouri. Fitzgerald v. Hayward,
50 Mo 516; Norton v. Kowazek
(Mo), 193 SW 556; McCollum v.
Winnwood Amusement Co., 332 Mo
779, 59 SW2d 693; Rissmiller v. St.
Louis & H. Ry. Co. (MoApp), 187
SW 573; Saulan v. St. Joseph Ry.
Co. (MoApp), 199 SW 714; Wirtel
v. Nuelle (MoApp), 27 SW2d 501;
Sutton v. Kansas City Star Co.
(MoApp), 54 SW2d 454; Berry v.
Adams (MoApp), 71 SW2d 126.
In an automobile collision case
brought by a guest riding with the
defendant, the court erroneously told
the jury to find for defendant if the
collision was due to the negligence
of the driver of the other car,
where there was no evidence in the
case as to the defendant's negli-
gence. Brooks v. Menaugh (Mo),
284 SW 803.
Nebraska. Norton v. Bankers Fire
Ins. Co., 115 Neb 490, 213 NW 515.
New Jersey. Blackmore v. Ellis,
70 NJL 264, 57 A 1047; Heitman v.
Kaltenbach & Stephens, 95 NJL
118, 112 A 306; Hotchkiss v. Walter,
4 NJMisc 211, 132 A 242; Stiles v.
McLean, 103 NJL 537, 138 A 119.
North Carolina. Davidson v. Sea-
board Air Line Ry. Co., 171 NC
634, 88 SE 759.
A charge correct on the law on
one phase of the evidence is incom-
plete unless embracing the law as
applicable to the respective conten-
tions of each party. Lea v. South-
em Public Utilities Co., 176 NC 511,
97 SE 492.
Ohio. Atley v. Atley, 20 OhApp
497, 152 NE 761; Smythe v. Harsh,
24 OhApp 391, 156 NE 619. See
Lake Shore Elec. Ry. Co. v. Ordway,
24 OhApp 317, 156 NE 235.
Instruction in automobile collision
case was held erroneous as ignoring
evidence as to defendant's negligence
in driving with defective brakes.
Chapman v. Blackmore, 39 OhApp
425, 177 NE 772.
Oklahoma. Ed. M. Seamens &
Co. v. Overholser & Avey, 116 Okl
276, 244 P 796.
Oregon. Houston v. Keats Auto
Co., 85 Or 125, 166 P 531.
Pennsylvania. Babayan v. Reed,
257 P 206, 101 A 339; De Pietro v.
Great Atlantic & Pacific Tea Co.,
315 Pa 209, 173 A 165.
Texas. Gulf, C. & S. F. Ry. Co.
v. Warner, 22 TexCivApp 167, 54
SW 1064; Southern Trac. Co. v. Ro-
gan (TexCivApp), 199 SW 1135;
Jones v. Jones (TexCivApp), 41
SW2d 496; Southland Life Ins. Co.
v. Dunn (TexCivApp), 71 SW2d
1103.
Utah. Morgan v. Child, Cole &
Co., 47 Utah 417, 155 P 451.
Virginia. Haney v. Breeden, 100
Va 781, 42 SE 916; Franklin Plant
Farm v. Nash, 118 Va 98, 86 SE
836 (ignored evidence justifying
punitive damages); Carpenter v.
Smithey, 118 Va 533, B8 SE 321;
377 PERTINENCY § 124
Facts necessary to a verdict cannot be omitted merely for
the sake of brevity.90 Yet this does not make an instruction
applicable to the facts erroneous because not more fully ex-
pressed.91
It is not error to omit an instruction concerning a fact not
in dispute,92 although error has been deduced from a failure
to charge as to conceded facts.93
Negligence. An instruction on the question of the insufficiency
of a scaffold based wholly on quality of timber used was errone-
ous where there was evidence of improper construction aside
from the quality of the timber used.94
In action for damage from collision of automobiles, an in-
struction is erroneous which ignores the question of speed or
relative position of the parties, though charging that the one
approaching from the right had the right of way.93 An instruc-
tion allowing recovery by passenger in bus which collided with
a truck on doctrine of res ipsa loquitur is erroneous where it
ignores evidence of the truck driver's negligence.96 In an action
for damages against an automobile driver, a charge on his negli-
gence in driving on the left side of the street, without considera-
tion of the purpose for which he did so, is erroneous.97
An instruction on contributory negligence is improper which
ignores evidence of negligence of defendant after becoming
aware of the danger of plaintiff.98 And it is error to limit the
Rosenbaum Hdw. Co. v. Paxton Lbr. App 218; Byrnes v. Poplar Bluff
Co., 124 Va 346, 97 SE 784; Chesa- Printing Co. (Mo), 74 SW2d 20;
peake & 0. Ry. Co. v. Arrington, 126 Montgomery v. Hammond Packing"
Va 194, 101 SE 415 (ignored evi- Co. (MoApp), 217 SW 867.
dence of defects in couplers); Sands It was error to withdraw question
& Co. v. Norvell, 126 Va 384, 101 of care after discovery of danger
SE 569. where evidence showed motorman
Washington. Shanks v. Oregon- tried to stop car by improper
Washington R. & Nav. Co., 98 Wash method. Harrington v. Dunham, 273
509, 167 P 1074. Mo 414, 202 SW 1066.
West Virginia. Robinson v. Lowe, 93 Harting v. East St. Louis Ry.
50 WVa 75, 40 SE 454; Wiggin v. Co. (Mo), 84 SW2d 914.
Marsh Lbr. Co., 77 WVa 7, 87 SE 94 Koppers Co. v. Jernigan, 206
194; Stuck v. Kanawha & M. Ry. Ala 159, 89' S 706.
Co., 78 WVa 490, 89 SE 280; Palmer 9S Friedman v. Hendler Creamery
v. Magers, 85 WVa 415, 102 SE Co., 158 Md 131, 148 A 426.
100 (boundary-line) ; Pierson v. Lim- 96 Cumberland & Westernport
ing, 113 WVa 145, 167 SE 131 (where Transit Co. v. Metz, 158 Md 424,
defense of contributory negligence 149 A 4.
was ignored). 97 Richardson v. Franklin, 235 111
90 Preston v. Union Pacific R. Co., App 440.
292 Mo 442, 239 SW 1080. 9S Alabama Great Southern R.
91 Indianapolis & C. Trac. Co. v. Co. v. Molette, 207 Ala 624, 93 S
Senour, 71 IndApp 10, 122 NE 772. 644.
92 Neumann v. Neumann, 147 111
§ 125 INSTRUCTIONS — RULES GOVERNING 378
matter of contributory negligence to the defendant's evidence,
by charging that the defendant must by its evidence prove
contributory negligence by a preponderance of the evidence."
An instruction in a negligence action is erroneous where it pur-
ports to state the facts entitling plaintiff to a verdict but omits
to state that the plaintiff must have been free from negligence. !
Where there was evidence of contributory negligence, an instruc-
tion was erroneous which failed to present the requirement of
ordinary care.2
Damages. It is improper to instruct that the question of the
permanency of an injury sued for is to be determined from
the testimony of physicians and surgeons.3 So, it is improper
to instruct as to some of the evidence on the question of value
and ignore other evidence on this question.4
Kinds of evidence. An instruction that "the evidence is
what the witnesses swear before you on the stand" ignores
interrogatories and documents admitted in evidence.5 If there
is both oral and documentary evidence the jury should not be
confined to a consideration of one to the exclusion of the other.6
So, an instruction is erroneous which ignores statutes and
ordinances admitted in evidence.7
Agency. The instruction on liability for acts of one assuming
to act as agent should include the question of ratification where
there is evidence of ratification.8
§ 125. Ignoring issues and evidence in criminal prosecutions.
In criminal prosecutions, instructions applicable to the issues
supported by evidence should be given to the jury.
In criminal prosecutions, instructions applicable to every
issue of the case deducible from the testimony or supported by
it to any extent should be given to the jury.9
99 Tudor Boiler Mfg. Co. v. Tee- 6 May v. Leverette, 164 Ga 552,
ken, 33 OhApp 512, 169' NE 704, 29 139 SE 31.
OLE 39. 7 Seitz v. Pelligreen Constr. &
1 Noblesville Milling Co. v. Wit- Inv. Co. (MoApp), 215 SW 485.
ham, 86 IndApp 209, 156 NE 522. 8 Pittsburgh Constr. Co. v. Gan-
2 Louisville & N. R. Co. v. Slush- non, 46 AppDC 131; Crossley v.
er's Admr., 217 Ky 738, 290 SW Summit Lbr. Co. (MoApp), 187 SW
677. 113.
3 Ekelberg v. Tacoma, 142 Wash 9 Federal. Showalter v. United
240 252 P 915. States, 171 CCA 457, 260 F 719.
4 Payne v. James, 207 Ala 134, 91 Alabama. Crittenden v. State, 134
S 801. Ala 145, 32 S 273; Morris v. State,
5Byrd v. Byrd, 22 GaApp 354, 146 Ala 66, 41 S 274; Pynes v.
96 SE 10. See also Newman v. State, 207 Ala 395, 92 S 663; Minor
Newman, 208 IllApp 97. v. State, 15 AlaApp 556, 74 S 98;
379
PEETINENCY
125
Ignoring evidence. The rule is very clearly violated by in-
structions which ignore or obscure the testimony of witnesses
for either side, lo or authorize a verdict on part of the evi-
dence. ! ' So it was proper to refuse an instruction which required
an acquittal upon a reasonable doubt resting solely upon a part
of the evidence.12 There should be an instruction on honest
Thompson v. State, 16 AlaApp 393,
78 S 309; Wiggins v. State, 16 Ala
App 419, 78 S 413; Warsham v.
State, 17 AlaApp 181, 84 S 885;
Ewing v. State, 18 AlaApp 166, 90
S 136; Hammond v. State, 21 Ala
App 434, 109 S 172.
A charge may ignore proof of
venue in a prosecution only where
there has been no proof of a venue.
Ragsdale v. State, 134 Ala 24, 32
S 674.
A charge that unless the confes-
sion of the defendant tends to cor-
roborate the testimony of his ac-
complice he should be acquitted, was
properly refused since it ignored
other corroborating evidence. Crit-
tenden v. State, 134 Ala 145, 32 S
273.
It is proper to refuse requested
instruction constituting a mere argu-
ment in favor of defendant based
on part of the testimony. Steele v.
State, 168 Ala 25, 52 S 907.
California. People v. Wagner, 65
CalApp 704, 225 P 464.
Florida. Mims v. State, 42 Fla
199, 27 S 865; Lamb v. State, 90
Fla 844, 107 S 530; Dwyer v. State,
93 Fla 777, 112 S 62.
Georgia. Southern Exp. Co. v.
State, 23' GaApp 67, 97 SE 550.
Kentucky. Agee v. Common-
wealth, 9 KyL 272, 5 SW 47.
Massachusetts. Commonwealth v.
Este, 140 Mass 279, 2 NE 769; Com-
monwealth v. Gavin, 148 Mass 449,
18 NE 675, 19 NE 554; Common-
wealth v. Turner, 224 Mass 229, 112
NE 864.
New Jersey. State v. Blaime, 5
NJMisc 633, 13<7 A 829.
North Carolina. State v. Orr, 175
NC 773, 94 SE 721.
Oregon. State v. Holbrook, 98 Or
43, 188 P 947, 192 P 640, 193 P 434.
Texas. Requested charges requir-
ing the court to single out certain
evidence and by a process of reason-
ing to eliminate it from the consid-
eration of the jury was properly
refused. Lemons v. State, 59 TexCr
299, 128 SW 416.
Virginia. Webb v. Commonwealtli,
122 Va 899, 94 SE 773; Dennis v.
Commonwealth, 144 Va 559, 131 SE
131.
West Virginia. State v. Price, 83
WVa 71, 97 SE 582, 5 ALR 1247.
1 ° Alabama. Suther v. State, 118
Ala 88, 24 S 43.
California. People v. Lonnen, 139
Cal 634, 73 P 586.
Illinois. People v. Davis, 300 111
226, 133 NE 320 (reasonable doubt).
Mississippi. Dedeaux v. State, 125
Miss 326, 87 S 664.
1 ' King v. State, 15 AlaApp 67,
72 S 552; West v. State, 16 AlaApp
117, 75 S 709 (reasonable doubt);
Edmonds v. State, 16 AlaApp 157,
75 S 873; Bryan v. State, 18 AlaApp
199, 89 S 894.
1 2 Alabama. Liner v. State, 124
Ala 1, 27 S 438; Bardin v. State, 143
Ala 74, 38 S 833; Burkett v. State,
215 Ala 453, 111 S 34; Spencer v.
State, 228 Ala 537, 154 S 527; Voss
v. State, 21 AlaApp 481, 109 S 891,
cert. den. in 215 Ala 107, 109 S 892;
Ford v. State, 22 AlaApp 59, 112 S
182.
Arkansas. See Francis v. State,
189 Ark 288, 71 SW2d 469.
California. People v. Watts, 198
Cal 776, 247 P 884 (instruction held
correct) .
Florida. An instruction for ac-
quittal was properly refused where
it was predicated upon an isolated
fact or only part of the evidence
that was not conclusive of the merits
of the case. Kennard v. State, 42
Fla 581, 28 S 858.
§125
INSTBUCTIONS — RULES GOVEENING
380
acquisition where there is evidence on a prosecution for theft
which tends to establish an honest acquisition of the articles
by the accused.13 The instruction on flight should embody the
explanation of defendant, l4 and hence should not ignore evidence
that accused fled to escape mob violence, ! 5 It is error to refuse
to charge on evidence tending to reduce the grade or degree
of the oifense or the punishment therefor. { 6
Ignoring issues. A court may ignore a defective count of an
indictment in his charge and charge on the valid counts alone. ' 7
Nor is it error to omit instructions on abandoned counts in in-
dictment.18 But the court must embody every material element
necessary to authorize a conviction, if an attempt is made to
detail the material allegations of the indictment ! 9
The instruction defining accessory should specifically negative
the possibility of innocent aid.20
In a larceny prosecution it is error to fail to charge as to
felonious intent.21
In a prosecution for killing an officer during attempted arrest,
it is error to fail to charge upon reasonable doubt.22
A charge is erroneous if it ignores a defense claimed, as to
which there is evidence before the jury.23
1 3 Hall v. State, 120 Ga 142, 47
SE 519; Beckham v. State, 8 TexApp
52; Parker v. State (TexCr), 57 SW
668.
Court properly refused a charge
in a prosecution for receiving stolen
property which ignored all issues
raised except that of concealment.
Watkins v. State, 21 AlaApp 585,
111 S 43, cert. den. in 215 Ala 484,
111 S 44.
f4 State v. Mills, 272 Mo 526, 199
SW 131. But see People v. Mina-
mino, 56 CalApp 386, 205 P 463.
1 5 State v. Schmulbach, 243 Mo
533, 147 SW 966.
*«Plymel v. State, 164 Ga 677,
139 SE 349; State v. Sipes, 202 la
173, 209 NW 458, 47 ALR 407.
17 Butler v. State (TexCr), 43 SW
992. But see Shelton v. State, 143
Ala 98, 39 S 377.
18 State v. Smith (MoApp), 201
SW 942.
•» Bailey v. State, 115 Neb 77,
211 NW 200.
20 Federal. In Fisher v. United
States, 13 F2d 756, the court held
it error to omit to charge as to
agreement or understanding as to
commission of act, in an instruc-
tion that defendant's participation
with others constituted a conspiracy.
Arkansas. See Pennell v. State,
170 Ark 1119, 282 SW 992.
Connecticut. State v. Enanno, 96
Conn 420, 114 A 386.
21 State v. Eunice, 194 NC 409,
139 SE 774.
22 People v. Cash, 326 111 104,
157 NE 76.
23 Federal. Where there was evi-
dence, in a prosecution of a bank
official for making false entries,
tending to show that the defendant
had asked the advice of reputable
bankers as the particular transac-
tion, and, consequently, to show his
good faith in the matter, an in-
struction which excluded considera-
tion of such facts was erroneous.
Hyde v. United States, 15 F2d 816.
Alabama. Enzor v. State, 24 Ala
App 346, 135 S 595 (reasonable
doubt).
niinois. People v. Lacey, 339 HI
381
PERTINENCY
126
§ 126. Directing verdict if jury believes certain evidence or finds
certain facts — Formula instructions.
Where an instruction directs a verdict if the jury finds cer-
tain facts* the instruction must include every fact which is
essential for such a verdict.
Formula or hypothetical instructions should not be confused
with directed verdicts. The former type of instruction still per-
mits the jury to decide the verdict, whereas a directed verdict
takes that decision away from the jury. Formula instructions
are conditional upon the jury finding- all the necessary facts
which would result in a decision for one party or the other.
Some courts frown upon the use of formula instructions and
rightly so. They can be and are involved and confusing and are
unnecessary if the judge has covered the necessary matter in
the rest of his charge.
At any rate, in those jurisdictions permitting1 formula in-
structions, they must include all the facts and conditions essential
to a verdict, unless omitted facts are conclusively established.24
480, 171 NE 544 (alibi); People v.
Moor, 355 111 393, 189 NE SIS (in-
sanity).
Missouri. State v. Welch, 311 Mo
476, 278 SW 755 (charge held er-
roneous for ignoring* a claim of
self-defense); State v. Malone, 327
Mo 1217, 39 SW2d 786 (self-de-
fense); State v. Johnson, 334 Mo
10, 64 SW2d 655 (prosecution for
forgery in which charge ignored de-
fense that defendant acted under
authority of makers). See State v.
Douglas, 312 Mo 373, 278 SW 301K
(where the defense of insanity was
held sufficiently covered by the in-
structions).
New Jersey. Where the claim of
the defendants was that at the time
the crime was committed he was in
such a drunken stupor as to be un-
able to participate in the offense, an
instruction which assumed that such
a defense was relied on merely in
mitigation and not in justification
was erroneous. State v. Di Canio,
104 NJL 188, 138 A 923, affg. State
v. Letter, 4 NJMisc 395, 133 A 46.
Pennsylvania. Commonwealth v.
Westley, 300 Pa 16, 150 A 94 (alibi) ;
Commonwealth v. Trunk, 311 Pa
555, 167 A 333, revg. 105 PaSuper
569, 161 A 767.
Texas. Eatliff v. State, 114 TexCr
142, 25 SW2d 343; Wilson v. State,
122 TexCr 478, 56 SW2d 463.
Virginia. Harris v. Common-
wealth, 161 Va 1028, 170 SE 717;
Wessells v. Commonwealth, 164 Va
664, 180 SE 419 (insanity).
24 Alabama. Southern Ry. Co.
v. Alsobrook, 223 Ala 540, 137 S
437.
Arizona. Pickwick Stages Corp.
v. Messinger, 44 Ariz 174, 36 P2<i
168.
Arkansas. Johnson v. State, 142
Ark 573, 219 SW 32.
California. Jordan v. Great West-
ern Motorways, 213 Cal 606, 2 P2d
786; White v. Davis, 103 CalApp
531, 284 P 1086.
Illinois. McNulta v. Jenkins, 91
IllApp 309; Mason v. Illinois Bank-
ers Life Assn., 199 IllApp 184; Wil-
liams v. Prudential Ins. Co., 271 111
App 532.
Kentucky. Hoskins v. Common-
wealth, 188 Ky 80, 221 SW 230;
Federal Surety Co. v. Guerrant, 238
Ky 562, 38 SW2d 425.
Missouri. Thomas v. Babb, 45 Mo
384; Cassin v. Lusk, 277 Mo 663,
210 SW 902; Boomshaft v. Klauber,
196 MoApp 222, 190 SW 616; Van
Zandt v. St. Louis Wholesale Grocer
§126
INSTBUCTIONS — RULES GOVERNING
382
The jury should be charged in such cases that their belief of
the stated facts must be based upon the evidence.25 In this
connection, the instruction is sufficient if premised by the state*
ment, "if you find from the evidence that * * *."26
Notwithstanding that all the hypothetical facts given in an
instruction may be true, still if material evidence is disregarded,
the instruction should be refused.27 On the other hand, it is
error if such an instruction assumes facts not in evidence.28
If an essential fact is omitted, the instruction is erroneous
and the error is not cured by supplying the omission in another
instruction.29 Moreover, this error may be relied upon by the
aggrieved party even though no proper instruction had been
requested.30
Co., 196 MoApp 640, 190 SW 1050;
Weller v. Plapao Laboratories In-
corporation, 197 MoApp 47, 191 SW
1056; Peoples Bank v. Baker (Mo
App), 19S SW 632; Sutter v. Metro-
politan Street Jty. Co. (MoApp), 208
SW 851; Shortridge v. Raiffeisen,
204 MoApp 166, 222 SW 1031; Lly-
welyn v. Lowe (MoApp), 239 SW
535; Edelman v. Wells (MoApp),
242 SW 990; Herron v. Smith (Mo
App), 285 SW 544; Gash v. Mans-
field (MoApp), 28 SW2d 127; Nel-
son v. Kansas City Public Service
Co. (MoApp), 30 SW2d 1044; Koury
v. Home Ins. Co. (MoApp), 57 SW2d
750; Sells v. Fireside Life Assn.
(MoApp), 66 SW2d 955; J. A. Tobin
Constr. Co. v. Davis (MoApp), 81
SW2d 474; McCullough v. St. Louis
Public Service Co. (MoApp), 86
SW2d 334.
Nebraska. Standard Distilling: <fe
Distributing Co. v. Harris, 75 Neb
480, 106 NW 582; Altis v. State, 107
Neb 540, 186 NW 524.
New York. Scheer v. Continental
Wonder Bakeries Corp., 229 AppDiv
437, 242 NYS 1.
Ohio. Richardson v, Curtis, 33
OhSt 329; Fagan v. Welsh, 19 Oh
CirCt (N. S.) 177, 32 OhCirDec 409.
Oklahoma. Murphy v. Hood &
Lumley, 12 Okl 593, 73 P 261.
Texas, Dismukes v. Gilmer (Tex
CivApp), 286 SW 495.
Virginia. Atlantic Coast Line R.
Co. v. Newton, 118 Va 222, 87 SE
618; Baylor v. Hoover, 123 Va 659,
97 SE 309; Wmn Bros. & Baker v.
Lipscombe, 127 Va 554, 103 SE 623;
Hughes v. Kelly (Va), 30 SE 387.
West Virginia. Claibome v. Chesa-
peake & O. Ry. Co., 46 WVa 363,
33 SE 262; Penix v. Graf ton, 86
WVa 278, 103 SE 106; State v.
Smith, 92 WVa 12, 114 SE 375;
Curry v. New Castle Auto Express,
112 WVa 268, 164 SE 147.
25 Federal. United States Potash
Co. v. McNutt, 70 F2d 126.
Alabama. Mizell v. Sylacauga
Groc. Co., 214 Ala 204, 106 S 858.
See Metropolitan Life Ins. Co. v.
Halsey, 230 Ala 193, 160 S 248.
Kentucky. Louisville & N. R. Co.
v. Slusher's Admr., 217 Ky 738, 290
SW 677.
Missouri. Ligon v. Exhibitors'
Film Delivery & Service Co. (Mo
App), 22 SW2d 1058.
Pennsylvania. Pringle v. Smith,
289 Pa 356, 137 A 603; Finkbeiner
v. Philadelphia Rapid Transit Co.,
86 PaSuper 364.
26 Smith v. Hale, 3 CalApp2d 277,
39 P2d 445.
27 Hughes v. Kelly (Va), 30 SE
387.
28 Duffy v. Cortesi, 2 I112d 511,
119 NE2d 241.
29 Redd v. Indianapolis Rys., Inc.,
121 IndApp 472, 97 NE2d 501; Tay-
lor v. Fitzpatriek, 235 Ind 238, 132
NE2d 919.
30 Cover v. Platte Valley Public
Power & Irrigation Dist., 162 Neb
146, 75 NW2d 661.
383 PERTINENCY § 126
Where an instruction authorizes the jury to find for the
plaintiff without regard to a certain fact which is a prerequisite
to recovery, error is committed.3 1 So where contributory negli-
gence is interposed as a defense and there is evidence tending to
sustain it, a hypothetical instruction directing a finding for
plaintiff omitting any reference to facts bearing upon con-
tributory negligence will be erroneous.32
In an action against a street railway company for a wrong-
ful death, an instruction that "if the jury believe from the evi-
dence that the defendant's servants exercised, at the time and
place in question, ordinary care to avoid injuring the plaintiff's
intestate, but that nevertheless the deceased was injured, then
they should find the defendant not guilty" was held to be rightly
refused, since the declaration charged, and the evidence tended
to prove, negligence not only in the operation of the car, but
also in the company's failure to equip the car with a fender
as required by city ordinance, and one important feature of the
evidence therefore was disregarded.33
31 Birtwhistle v. Woodward, 95 33 Chicago City Ry. Co. v. O'Don-
Mo 113, 7 SW 465. nell, 114 IllApp 359.
32McCreery's Admx. v. OMo
River R. Co., 43 WVa 110, 27 SE
327.
CHAPTER 6
CONSTRUCTION AND EFFECT
Section.
135. Interpretation — In general.
136. Construction of charge as an
entirety In civil cases.
137. Construction of charge as an
entirety in criminal cases.
138. Cure of erroneous instruction
by correct instruction in civil
cases.
Section.
139. Cure of erroneous instruction
by correct instruction in
criminal cases.
140. Cure of ambiguous instruction
by another instruction.
141. Cure by withdrawal of erro-
neous instruction.
§ 135. Interpretation — In general.
In interpreting instructions, consideration should be given to
the issues and pertinent evidence, as well as to all the other
instructions.
The interpretation of instructions is necessary when there is
a question whether the instructions were properly understood by
the jury. On this matter, prior sections are pertinent.1
Obviously, the language of the instructions must be con-
sidered. Beyond this, are the vague general rules of interpreta-
tion that are applicable to any field of law where the question is
language ambiguity. For example, the phraseology of instruc-
tions must receive a reasonable construction, in view of all the
circumstances.2 Some of the "circumstances" that should be
considered are the issues3 and the evidence pertinent to such
issues,4 as well as the rest of the instructions.3 More detailed
treatment is included in the remaining sections of this chapter.
1 See §§ 90, 94, 103, supra,.
* Behrend v. Behrend, 233 la 812,
10 NW2d 651.
3 Alabama. Empire Life Ins. Co.
v. Gee, 171 Ala 435, 55 S 166; Wind-
ham v. Hydrick, 197 Ala 125, 72 S
403; Higdon v. Fields, 6 AlaApp
281, 60 S 594,
Florida. Winfield v. Truitt, 71
Fla 38, 70 S 775.
Illinois. Dettmer v. Illinois Termi-
nal R. Co., 210 IllApp 653.
Iowa. Hart v. Cedar Rapids &
M. C. Ry. Co., 109 la 631, 80 NW
662; Dickson v. Yates, 194 la 910,
188 NW 948, 27 ALR 533.
Montana. Surman v. Cruse, 57
Mont 253, 187 P 890.
North Carolina. Tillotson v. Cur-
rin, 176 NC 479, 97 SE 395.
Virginia. Richmond Granite Co.
v. Bailey, 92 Va 554, 24 SE 232.
Wisconsin. Neumann v. LaCros-
se, 94 Wis 103, 68 NW 654.
4 Federal. Southern Pacific Co.
v. Hall, 41 CCA 50, 100 F 760; Hall
v. McKinnon, 113 CCA 440, 193 F
592; Ocean Ace. & Guarantee Corp.,
Ltd. v. Schachner, 70 F2d 28.
Alabama, Meighan v. Birming-
ham Terminal Co., 165 Ala 591, 51
S 775; Central of Georgia Ry. Co. v.
384
385
CONSTRUCTION AND EFFECT
§135
If the danger is misleading the jury,6 a questioned charge
must be viewed from the standpoint of the jury, and its language
must be given the plain common sense meaning it was evidently
intended to convey.7 The theory is that jurors are men of under-
standing and intelligence.8
Chicago Varnish Co,, 169 Ala 287,
53 S 832.
California. People v. Alba, 52
CalApp 603, 199 P 894; Hodge v.
Weinstock, Lubin & Co., 109 CalApp
393, 293 P 80.
Georgia. Brown v. State, 24 Ga
App 774, 102 SE 450.
Illinois. Drda v. Illinois Terminal
R. Co., 210- IllApp 640.
Iowa. Yeager v. Chicago, R. I. &
P. Ry. Co., 148 la 231, 123 NW 974.
Kansas. Wyandotte v. White, 13
Kan 191.
Maryland. Street v. Hodgson, 139
Md 137, 115 A 27.
Missouri. Esstman v. United Rys.
Co. (Mo), 216 SW 526; Bertke v.
Hoffman, 330 Mo 584, 50 SW2d 107.
New Jersey. Kneip v. New York
& L. B. R. Co., 102 NJL 374, 131 A
886.
North Carolina. Penn v. Standard
Life Ins. Co., 160 NC 399, 76 SE
262, 42 LRA (N. S.) 597; Jones v.
Bland, 182 NC 70, 108 SE 344, 16
ALR 1383.
Oklahoma. Missouri, K. & T. Ry.
Co. v. Taylor, 69 Okl 79, 170 P 1148;
Drum Standish Comm. Co. v. First
Nat. Bank & Trust Co., 168 Okl 400,
31 P2d 843.
Oregon. Instructions are to be
considered in the light of the facts
shown in the particular case. Disch
v. Closset, 118 Or 111, 244 P 71.
South Dakota. Smith & Co. v.
Kimble, 38 SD 511, 162 NW 162.
Texas. Dickinson v. Sanders (Tex
Civ App), 39 SW2d 102.
Virginia. Williams Printing Co.
v. Saunders, 113 Va 156, 73 SE 472,
AnnCas 1913E, 693; Clinchfield Coal
Corp. v. Redd, 123 Va 420, 96 SE
850, 46 ALR 186; Lucas v. Craft,
161 Va 228, 170 SE 836.
Washington. Wheeler v. Hotel
Stevens Co., 71 Wash 142, 127 P
840, AnnCas 1914C, 576.
An instruction must always be
construed in the light of the evi-
dence and the particular case, and
if it applies to that it will not be
held erroneous, though conditions
may be conceived where it would
be incorrect. Harkins v. Seattle
Elec. Co., 53 Wash 184, 101 P 836.
5 Walters v. Western & Southern
Life Ins. Co., 318 Pa 382, 178 A
499, affg. 113 PaSuper 221, 172
A 406.
6 Illinois. An instruction should
be construed in the sense in which
it would likely be understood by the
jury in the light of the evidence.
Bickel v. Martin, 115 IllApp 367.
North Carolina. Sutton v. Mel-
ton-Rhodes Co., 183 NC 369, 111 SE
630.
Oklahoma. Ft. Smith & W. R. Co.
v. Holcombe, 59 Okl 54, 158 P 633,
LRA 1916F, 1237.
Texas. Texas & P. Ry. Co. v.
Jones, 58 TexCivApp 202, 123 SW
434; Northern Texas Trac. Co. v.
Thetford (TexCivApp), 28 SW2d
906.
7 Indiana. Instructions should be
taken in the sense in which they
would be understood by men of
ordinary intelligence. Kingan &
Co. v. King, 179 Ind 285, 100 NE
1044.
Mississippi. St. Louis & S. F. R.
Co. v. Ault, 101 Miss 341, 58 S 102.
Missouri. Jackson v. Sewell (Mo
App), 284 SW 197.
Oregon, Storla v. Spokane, Port-
land & Seattle Transp. Co., 136 Or
315, 297 P 367, 298 P 1065.
Texas. Orange Lbr. Co. v. Ellis,
105 Tex 363, 150 SW 582; West v.
Cashin (TexCivApp), 83 SW2d 1001.
8 Harris v. Harris, 178 NC 7, 100
SE 125.
§136
INSTRUCTIONS — BULBS GOVERNING
886
§ 136. Construction of charge as an entirety in civil cases.
The court's charge should be construed in its entirety.
Probably the most repeated general rule in the law of in-
structions is that, in passing on a claimed instruction error, the
charge is considered as a whole; and if so considered, there is
no tendency to mislead the jury, there is no error.0
9 Federal. Stiison v. United
States, 250 US 583, 63 LEd 1154,
40 SupCt 28; Allen v. Roydhouse,
232 F 1010; Memphis Street Ey. Co.
v. Pierce, 168 CCA 609, 257 F 659;
Mendelson v. Davis, 281 F 18; Auto-
mobile Ins. Co. v. Central Nat. Bank,
Savings & Trust Co., 20 F2d 619
(instruction held erroneous as to
burden of proof).
Alabama. Thrasher v. Neely, 196
Ala 576, 72 S 115; Ex parte Cowart,
201 Ala 525, 78 S 879; Wilson v.
Vassar, 214 Ala 435, 108 S 250; Lin-
coln Reserve Life Ins. Co. v. Armes,
215 Ala 407, 110 S 818; Dempsey
v. State, 15 AlaApp 199, 72 S 773;
Anders v. Wallace, 17 AlaApp 154,
82 S 644.
Arizona. Inspiration Consol. Cop-
per Co. v. Lindley, 20 Ariz 95, 177
P 24; Phoenix Ry. Co. v. Beals, 20
Ariz; 386, 181 P 379; Lorden v. Stapp,
21 Ariz 646, 192 P 246; Lee v. State,
27 Ariz 52, 229 P 939; Peppers Fruit
Co. v. Charlebois, 39 Ariz 195, 4
P2d 905 (instruction on measures of
damages).
Arkansas. Redman v. Hudson, 124
Ark 26, 186 SW 312; Cohn v. Chap-
man, 150 Ark 258, 234 SW 42.
California. Taylor v. Pacific Elec.
Ry. Co., 172 Cal 638, 158 P 119;
People v. Wolff, 182 Cal 728, 190 P
22; Hammond v. Pacific Elec. R. Co.,
32 CalApp 756, 164 P 50; William-
son v. Hardy, 47 CalApp 377, 190
P 646; People v. Argrusa, 49 Cal
App 565, 193 P 819; Alcamisi v.
Market Street Ry. Co., 67 CalApp
710, 228 P 410; Truman v. Sutter-
Butte Canal Co., 76 CalApp 293,
244 P 923; Smith v. Pacific Grey-
hound Corp., 139 CalApp 696, 35
P2d 169; Hill v. Fresno County,
140 CalApp 272, 35 P2d 593.
Colorado. First Nat. Bank v.
Shank, 53 Colo 446, 128 P 56; Mc-
Allister v. McAllister, 72 Colo 28,
209 P 788; Blackman v. Edsall, 17
ColoApp 429, 68 P 790.
Connecticut. Appeal of Wheeler,
91 Conn 388, 100 A 13; Dunn v.
Poirot, 97 Conn 713, 118 A 33;
Smart v. Bissonette, 106 Conn 447,
138 A 365; C, I. T. Corp. v. Deering,
119 Conn 347, 176 A 553.
Florida. McRainey v. Langston,
92 Fla 903, 110 S 536; McDonald
v. Stone, 114 Fla 608, 154 S 327.
Georgia. Sisson v. Roberts, 25
GaApp 725, 104 SE 910; Phillips
v. Georgia Ry. & Power Co., 27 Ga
App 21, 107 SE 357; McCommons-
Thompson-Boswell Co. v. White, 33
GaApp 20, 125 SE 76.
Idaho. Lyons v. Lambrix, 33 Ida-
ho 99, 190 P 356; Raide v. Dollar,
34 Idaho 682, 203 P 469; State v.
Cosier, 39 Idaho 519, 228 P 277.
Illinois. Baker v. Baker, 202 111
595, 67 NE 410; Chicago Union
Trac. Co. v. Hanthorn, 211 111 367,
71 NE 1022; Wilke v. Moll, 338
IllApp 6, 86 NE2d 589.
Indiana. Robinson v. Shanks, 118
Ind 125, 20 NE 713; New York, C.
& St. L. R. Co. v. Shields, 185 Ind
704, 112 NE 762; Lavene v. Fried-
richs, 186 Ind 333, 115 NE 324, 116
NE 421; Massachusetts Bonding &
Ins. Co. v. State ex rel. Gary, 191
Ind 595, 131 NE 398; Baltimore &
0. R. Co. v. Peck, 68 IndApp 269,
114 NE 475; Yellow Cab Co. v.
Kruszynski, 101 IndApp 187, 196
NE 136.
Iowa. Becker v. Churdan, 175 la
159, 157 NW 221; Thompson v. Illi-
nois Cent. R. Co., 177 la 328, 158
NW 676; Fuller v. Illinois Cent. R.
Co., 186 la 686, 173 NW 137;
Fletcher v. Ketcham, 188 la 340,
176 NW 245; Cawley v. Peoples Gas
387
CONSTRUCTION AND EFFECT
136
& Elec. Co., 193 la 536, 187 NW
591; Ray v. Council Bluffs, 193 la
620, 187 NW 447; High v. Waterloo,
C. F. & N. Ry. Co., 195 la 304,
190 NW 331; Behrend v. Behrend,
233 la 812, 10 NW2d 651.
Kansas. Weathers v. Kansas City
Bridge Co., 99 Kan 632, 162 P 957;
State v. Wilson, 108 Kan 433, 195 P
618; Childers v. Tobin, 111 Kan 347,
206 P 876; Mayes v. Kansas City
Power & Light Co., 121 Kan 648,
249 P 599; Wooster v. National Bank
of America, 139 Kan 429, 32 P2d
235; John V, Farwell Co. v. Thomas,
8 KanApp 614, 56 P 151.
Kentucky. Louisville & N. R. Co.
v. Edwards' Admx., 183 Ky 555, 209
SW 519; Davidson v. Common-
wealth, 204 Ky 414, 264 SW 1051;
R. B. Tyler Co. v. Kirby}s Admr.,
219 Ky 389, 293 SW 155; Paducah
Comm. Co. v. Boswell, 26 KyL 1062,
83 SW 144.
Maine. If the charge as a whole
is free from misleading inferences,
and correctly states the law, it will
be sufficient though some of the
separate instructions may contain
loose expressions or simple inac-
curacies. Reed v. Central Maine
Power Co., 132 Me 476, 172 A 823.
Maryland. Gosman Ginger Ale
Co. v. Keystone Bottle Mfg. Co., 134
Md 360, 106 A 747.
Massachusetts, Lambeth Rope
Co. v. Brigham, 170 Mass 518, 49
NE 1022; Savageau v. Boston & M.
R., 210 Mass 164, 96 NE 67; Corn-
stock v. Biltmore Amusement Co.,
227 Mass 146, 116 NE 531; Draper
v. Getting, 231 Mass 51, 120 NE
365.
Michigan. Eggleston v. Board-
man, 37 Mich 14; Wegner v. Herki-
mer, 167 Mich 587, 133 NW 623;
In re Rockett's Estate, 191 Mich
499, 158 NW 12; Jacobs v. Hagen-
back-Wallace Shows, 198 Mich 73,
164 NW 548, LRA 1918A, 604; White
v. Cowing, 205 Mich 318, 171 NW
450; Inter-State Constr. Co. v.
United States Fidelity & Guaranty
Co., 207 Mich 265, 174 NW 173;
Holmes v. Borowski, 233 "Mich 407,
206 NW 374; Gaffka v. Grand Trunk
Western R. Co., 306 Mich 246, 10
NW2d 844; Van Dyke v. Rozneck,
324 Mich 29, 36 NW2d 201.
Minnesota. McCusky v. Kuhl-
man, 147 Minn 460, 179 NW 1000;
Pratschner v. Electric Short Line
Ry. Co., 149 Minn 425, 184 NW
188; In re Oronoco School Dist., 170
Minn 49, 212 NW 8.
Mississippi. Godfrey v. Meridian
Ry. & Light Co., 101 Miss 565, 58
S 534; Hemming v. Rawlings, 144
Miss 643, 110 S 118.
Missouri. Hulse v. St. Joseph Ry.
Co. (Mo), 214 SW 150; State v.
Hostetter (Mo), 222 SW 750; Pren-
tiss v. Illinois Life Ins. Co. (Mo),
225 SW 695; McKinstry v. St. Louis
Transit Co., 108 MoApp* 12, 82 SW
1108; Metz v. Kansas City, 229 Mo
App 402, 81 SW2d 462.
Montana. Pure Oil Co. v. Chi-
cago, M. & St. P. Ry, Co., 56 Mont
266, 185 P 150; McGonigle v. Pru-
dential Ins. Co., 100 Mont 203, 46
P2d 687.
Nebraska. Chicago, B. & Q. R.
Co. v. Oyster, 58 Neb 1, 78 NW 359;
Whelan v. Union Pacific R. Co., 91
Neb 238, 136 NW 20; Forrest v.
Koehn, 99 Neb 441, 156 NW 1046;
Ruhs v. Ruhs, 105 Neb 663, 181 NW
547; Interstate Airlines v. Arnold,
127 Neb 665, 256 NW 513.
New Hampshire. Monroe v. Con-
necticut River Lbr. Co., 68 NH 89,
39 A 1019.
New Jersey. Veader v. Veader,
89 NJL 727, 99 A 309; Republic of
France v. Lehigh Valley R. Co., 96
NJL 25, 114 A 242; McLaughlin v.
Damboldt, 100 NJL 127, 125 A 314;
Nolan v. Public Service Ry. Co.
(NJS), 132 A 237.
Under the general rule requiring
consideration of the entire charge,
it has been held that an instruction
was not erroneous which said to the
jury in a negligence action: "Was
the defendant negligent in what he
did? If he was driving at sixty
miles an hour on the wrong side of
the road and hit the other car on
the wrong side of the road, obviously
§136
INSTRUCTIONS — RULES GOVERNING
388
he was." Lyon v. Fabricant, 113
NJL 62, 172 A 567, affg. 12 NJMisc
39, 169 A 548.
New Mexico. State v. Rodriguez,
23 NM 156, 167 P 426, LRA 1918A,
1016; Hubert v. American Surety
Co., 26 NM 365, 192 P 487.
New York. Zimmer v. Third Ave.
R. Co., 36 AppDiv 265, 55 NYS 308;
Hurley v. Olcott, 134 AppDiv 631,
119 NYS 430; Scutt v. Woolsey, 20
AppDiv 541, 47 NYS 320.
North Carolina. Everett v. Spen-
cer, 122 NC 1010', 30 SE 334; Mc-
Curry v. Purgason, 170 NC 463, 87
SE 244, AnnCas 19 18 A, 907; Reed
Coal Co. v. Fain, 171 NC 646, 89
SE 29; Danville Lbr. & Mfg. Co. v.
Gallivan Bldg. Co., 177 NC 103, 97
SE 718; Maney v. Greenwood, 182
NC 579, 109 SE 636; Cook v. Me-
bane, 191 NC 1, 131 SE 407.
North Dakota. Soules v. North-
ern Pacific Ry. Co., 34 ND 7, 157
NW 823, LRA 1917A, 501; Munster
v. Stoddard, 44 ND 105, 170 NW
871; Fuchs v. Lehman, 47 ND 58,
181 NW 85; Reuter v. Olson, 79 ND
834, 59 NW2d 830.
Ohio. Ohio Farmers Ins. Co. v.
Cochran, 104 OhSt 427, 135 NE 537;
Ochsner v. Cincinnati Trac. Co., 107
OhSt 33, 140 NE 644; Flynn v.
Sharon Steel Corp., 142 OhSt 145,
26 OhO 343, 50 NE2d 319; Clark
Restaurant Co. v. Rau, 41 OhApp
23, 179 NE 196, 35 OLR 318; Morris
v. Cleveland Hockey Club, Inc., 59
OLA 145, 98 NE2d 49.
Oklahoma. Sapulpa v. Deason, 81
Okl 51, 196 P 544; Badger Oil Co.
v. Clay, 83 Okl 25, 200 P 433; Rubin
v. Greenwood, 116 Okl 194, 244 P
785; Hope Natural Gas Co. v. Ideal
Gasoline Co., 114 Okl 30, 243 P
20'6; Hall & Briscoe v. Roberts, 163
Okl 12, 20 P2d 188.
Oregon. Wadhams & Co. v. In-
man, Poulsen & Co., 38 Or 143, 63
P 11; Michellod v. Oregon-Washing-
ton R. & Nav. Co., 86 Or 329, 168
P 620; Hinton v. Roethler, 90 Or
440, 177 P 59; State v. Butler, 96
Or 219, 186 P 55; Rorvik v. North
Pacific Lbr. Co., 99 Or 58, 190 P
331, 195 P 163; Oregon Box & Mfg.
Co. v. Jones Lbr. Co., 117 Or 411,
244 P 313.
Pennsylvania. Weiss v. London
Guarantee & Ace. Co., Ltd., 285 Pa
251, 132 A 120; Phillips v. American
Liability & Surety Co., 309 Pa 1,
162 A 435; Szvitih v. Doernte, 360
Pa 415, 61 A2d 823; Renn v. Tall-
man, 25 PaSuper 503.
South Carolina. Willoughby v.
Northeastern R. Co., 52 SC 166, 29
SE 629; Best v. Barnwell County,
114 SC 123, 103 SE 479; Murrell
v. Charleston & W. C. R. Co., 115 SC
228, 105 SE 350; Pinson v. Bowles,
115 SC 47, 106 SE 775; Crawford v.
Davis, 136 SC 95, 134 SE 247; Gar-
rett Engineering Co. v. Auburn
Foundry, 176 SC 59, 179 SE 693.
Tennessee. Provident Life & Ace.
Ins. Co. v. Prieto, 169 Tenn 124, 83
SW2d 251.
Texas. Atchison, T. & S. F. Ry.
Co. v. Stevens (TexCivApp), 192
SW 304; Bain Peanut Co. v. Pin-
son v. Texas & N. 0. Ry. Co. (Tex
son (TexCivApp), 287 SW 87; Pear-
Corn App), 238 SW 1108.
Utah. Cromeenes v. San Pedro,
L. A. & S. L. R. Co., 37 Utah 475,
109 P 10, AnnCas 1912C, 307.
Vermont. State v. Bolton, 92 Vt
157, 102 A 489; Tetreault v. Camp-
bell, 115 Vt 369, 61 A2d 591.
Virginia. Virginia Portland Ce-
ment Co. v. Luck's Admr., 103 Va
427, 49 SE 577; Chesapeake & 0.
Ry. Co. v. McCarthy, 114 Va 181,
76 SE 319; Levine v. Levine, 144
Va 330, 132 SE 320; Adamson's
Admr. v. Norfolk & P. Trac. Co., Ill
Va 556, 69 SE 1055.
Washington. Bell v. Spokane, 30
Wash 508, 71 P 31; Morran v. Chi-
cago, M. & P. S. Ry. Co., 70 Wash
114, 126 P 73; Isitt v. Seattle, 140
Wash 161, 248 P 379; White v.
Rigg, 143 Wash 46, 254 P 459;
Frazee v. Western Dairy Products,
182 Wash 578, 47 P2d 1037; Ballard
v. Yellow Cab Co., 20 Wash2d 67,
145 P2d 1019.
West Virginia. Howes v. Balti-
more & 0. R. Co., 77 WVa 362, 87
889
CONSTRUCTION AND EFFECT
§136
Not only must a single instruction be considered with other
instructions, but a part of an instruction must be considered in
context.10 The rule applies to special verdict instructions as
well as general verdict instructions. l ' So also does the rule apply
to an instruction given by the court in answer to the question
of a juror.12
The charge is to be construed as a whole where it is claimed
that a particular instruction assumes facts, ' 3 or is misleading, f 4
SE 456; Truman v. Wink-0 Products
Co., 96 WVa 256, 122 SE 745.
Wisconsin. Karshian v. Milwau-
kee Elec. Ry. & Light Co., 192 Wis
269, 212 NW 643.
Wyoming. Wood v. Wood, 25 Wyo
26, 164 P 844.
10 Roberts v. Carlson, 142 Neb
851, 8 NW2d 175.
1 ' Reynolds v. Wargus, 240 Wis
94, 2 NW2d 842; Fischer v. Har-
mony Town Ins. Co., 249 Wis 438,
24 NW2d 887.
I2McLellan v. Fuller, 226 Mass
374, 115 NE 481.
1 3 Alabama. Birmingham Ry.,
Light & Power Co. v. Moore, 163
Ala 43, 50 S 115.
California. Drinkhouse v. Van
Ness, 202 Cal 359, 260' P 869;
Marston v. Pickwick Stages, 78 Cal
App 526, 248 P 930.
Missouri. Grubbs v. Kansas City
Public Service Co. (MoApp), 30
SW2d 441.
An instruction may properly as-
sume facts properly hypothesized in
an earlier instruction in the trial.
Williams v. St. Louis Public Service
Co., 335 Mo 335, 73 SW2d 199.
Oklahoma. Chicago, R. I. & P.
Ry. Co. v. Kahl, 168 Okl 578, 35 P2d
731.
1 4 Alabama. Little Cahaba Coal
Co. v. Arnold, 206 Ala 598, 91 S
586.
California. Hoy v. Tornich, 199
Cal 545, 250 P 565.
A misleading special instruction
cannot be cured by the general
charge. Nickell v. Rosenfield, 82
CalApp 369, 255 P 760.
Idaho. Just v. Idaho Canal & Imp.
Co., 16 Idaho 639, 102 P 381, 133
AmSt 140; Taylor v. Lytole, 29 Ida-
ho 546, 160 P 942; Kelly v. Lemhi
Irr. & Orchard Co., 30 Idaho 778,
168 P 1076.
Illinois. Wilkinson v. Service, 249
111 146, 94 NE 50, AnnCas 1912A,
41; Donovan v. St. Joseph's Home,
295 111 125, 129 NE 1.
Indiana. The jury was not mis-
led by use of word "per se" in one
intimation. Indianapolis Trac. &
Terminal Co. v. Thornburg, 74 Ind
App 642, 125 NE 57.
Iowa. In re Workman's Estate,
174 la 222, 156 NW 438.
Massachusetts. Forra v. Hume,
289 Mass 266, 194 NE 301.
Missouri. Cape Girardeau v.
Hunze, 314 Mo 438, 284 SW 471,
47 ALR 25 (instruction on measure
of damages); Warsham v. Lewis
(MoApp), 281 SW 82.
Nebraska. Armstrong v. Auburn,
84 Neb 842, 122 NW 43.
Ohio. Unintentional expression in
charge to jury that if the person
himself contributes to his own in-
jury the "defendant" is liable, was
held not misleading. Tynroka v.
Haydu, 3 OLA 151.
Oklahoma. First State Bank v.
Dickerson, 119 Okl 103, 245 P 54;
Dalton v. Bilbo, 126 Okl 139, 258 P
274.
But if two instructions contain
inconsistent propositions confusing
to the jury, the error will require re-
versal. Champlin Ref. Co. v. Puck-
ett, 118 Okl 300, 248 P 610.
Pennsylvania. Nusbaum v. Hart-
ford Fire Ins. Co., 285 Pa 332, 132 A
177 (charge on measure of dam-
ages).
Washington. St. John v. Cascade
Lbr. & Shingle Co., 53 Wash 193,
101 P 833; Farley v. Fidelity Rent
§136
INSTRUCTIONS — RULES GOVERNING
390
or is abstract, ' 5 or is indefinite or vague, ' 6 or is confusing, 1 7 or
is an expression of opinion. ! 8
It is not necessary that each instruction cover all the issues, ' 9
so the omissions of one may be supplied in another given by the
court in the main charge,20 or in an instruction given at the in-
& Collection Co., 137 Wash 485, 242
P 1097;- Hamm v. Seattle, 140 Wash
427, 249 P 778.
is Virginia Ry. & Power Co. v.
Hill, 120 Va 397, 91 SE 194.
1 ® Georgia. Barnett v. Strain, 151
Ga 553, 107 SE 530; Satterfield v.
Medlin, 161 Ga 269, 130 SE 822.
Ohio. Goebel v. Hummel, 21 Oh
App 486, 153 NE 223.
Washington. Ahlman v. Wilson,
102 Wash 677, 174 P 970.
1 7 Alabama. Pryor v. Limestone
County, 230 Ala 295, 160 S 700.
Georgia, Western & A. R. Co. v.
Jarrett, 22 GaApp 313, 96 SE 17.
Missouri. Sitts v. Daniel (Mo App),
284 SW 857.
1 8 Georgia. Hines v. Hendricks,
25 GaApp 682, 104 SE 520.
Kentucky. Frye's Exr. v. Bennett,
189 Ky 546, 225 SW 499.
Massachusetts. Comstock v. Bilt-
more Amusement Co., 227 Mass 146,
116 NE 531.
Mississippi. Hattiesburg1 ex rel.
Coston v. Beverly, 123 Miss 759, 86
S 590.
North Carolina. Brown v. Kin-
ston Mfg. Co., 175 NC 201, 95 SE
168.
1 9 Arizona. Perazzo v. Ortega,
29- Ariz 334, 241 P 518.
California. Anderson v. Pickens,
118 CalApp 212, 4 P2d 794; Beni v.
Abrons, 130' CalApp 206, 19 P2d
523.
Florida. Pensacola Elec. Co. v.
Bissett, 59 Fla 360, 52 S 367.
Georgia. Hilton & Dodge Lbr. Co.
v. Ingram, 135 Ga 696, 70 SE 234.
Where an instruction is sound
within itself, it is not made de-
fective by the fact that the court
failed in immediate connection there-
with to charge some other principle
or rule of law. Southern Ry. Co. v.
Williams, 139 Ga 357, 77 SE 153.
Illinois. Minnis v. Friend, 360 111
328, 196 NE 191.
Indiana. Grand Trunk Western
Ry. Co. v. Poole, 175 Ind 567, 93 NE
26; American Maize Products Co. v.
Widiger, 186 Ind 227, 114 NE 457.
Kansas. Gillies v. Linscott, 98
Kan 78, 157 P 423.
Missouri. Royle Min. Co. v. Fi-
delity & Casualty Co., 161 MoApp
185, 142 SW 438.
Montana. Reynolds v. Trbovich,
Inc., 123 Mont 224, 210- P2d 634.
Nebraska. Lord v. Roberts, 102
Neb 49, 165 NW 892.
New Jersey. Johnson v. Central
R. Co., Ill NJL 93, 166 A 180.
Oklahoma. St. Louis & S. P. R.
Co. v. Akard, 60 Okl 4, 159 P 344;
Chicago, R. I. & P. Ry. Co. v. John-^
son, 71 Okl 118, 175 P 494; Lazzell
v. Harvey, 174 Okl 86, 49 P2d 519.
20 California. An instruction
which does not direct a verdict is
not objectionable for omitting the
law relative to some element if such
omission is supplied by other in-
structions. Winslow v. Glendale
Light & Power Co., 12 CalApp 530,
107 P 1020.
Illinois. Moore v. Aurora, E. &
C. R. Co., 246 111 56, 92 NE 573;
McFarlane v. Chicago City Ry. Co.,
288 111 476, 123 NE 638; Coolahan
v. Marshall Field & Co., 159 IllApp
466; Tindall v. Chicago & N. W. R.
Co., 200 IllApp 556; Leeper v. Gay,
253 IllApp 176; Howard v. Rockford,
270 IllApp 155.
The omission of an instruction
may be cured by the contents of
other instructions given, if the in-
struction subject to criticism does
not assume to direct a verdict.
Dukeman v. Cleveland, C., C. & St.
L. Ry. Co., 142 IllApp 622.
Indiana. Angola Ry. & Power
Co. v. Butz, 52 IndApp 420, 98 NE
818.
391
CONSTRUCTION AND EFFECT
136
stance of the opposite party.2 1 Another way of stating the same
rule is that where the instructions as a whole properly apply the
law, it is not demanded that each instruction shall repeat the
proposition.22 Or the fact that an instruction does not embody
limitations on a general doctrine charged therein is immaterial
An explanatory instruction was
construed with the instruction sought
to be explained. Lake Erie & W. R.
Co. v. Douglas, 71 IndApp 567, 125
NE 474.
Kansas. Hunter v. Greer, 137 Kan
772, 22 P2d 489.
Mississippi. Yazoo & M. V. R.
Co. v. Kelly, 98 Miss 367, 53 S 779.
Montana. Brockway v. Blair, 53
Mont 531, 165 P 455.
North Carolina. Marriner v,
Mizzelle, 207 NC 34, 175 SE 711.
Ohio. A charge will be considered
as a whole in order to determine
whether any part of it is erroneous,
and if erroneous, whether it is
prejudicial. When a statement might
mislead the jury if considered alone,
but not if considered as a whole,
there is no prejudicial error. The
fact that a part of the charge does
not state the law completely does
not constitute error where other
parts of the charge correctly state
the law. Special charges given be-
fore argument, together with gen-
eral charge, constitute the charge
of the court, and should be read
and considered together. Industrial
Comm. v. Boyles, 127 OhSt 20, 186
NE 619; Cohen v. Smith, 26 OhApp
32, 159 NE 329; Louisville & N. R.
Co. v. Greene, 26 OhApp 392, 160
NE 495; Hess v. Avon Constr. Co.,
34 OhApp 327, 171 NE 318; Dayton
Biscuit Co. v. Aerni, 40 OhApp 49,
177 NE 775, 34 OLE 346; Alloy Cast
Steel Co. v. Arthur, 40 OhApp 503,
179 NE 743, 11 OLA 147; Clark
Restaurant Co. v. Rau, 41 OhApp 23,
179 NE 196, 35 OLR 318; Schomer
v. State ex rel. Bettman, 47 OhApp
84, 190 NE 638; Morgan Engineer-
ing Co. v. Bowser, 32 OLR 322;
Evans v. Bruggeman, 7 OLA 536;
Menk Bros. Wet Wash Co. v. Mc-
Donald, OLA; American Surety &
Trust Co. v. White, 42 OhApp 272,
181 NE 918, 12 OLA 321.
An instruction that transactions
between relatives "are always
viewed with suspicion, and their
testimony with regard to such
transactions must be taken with al-
lowance," where immediately fol-
lowed by the statement that, if such
testimony "is of such a nature as
to carry conviction that said wit-
nesses are telling the truth, then it
is entitled to as much weight as
that of any other witness" is with-
out prejudice. Crawford v. Merrell,
5 OhApp 146, 25 OhCirCt (N. S.)
537, 27 OhCirDec 104.
Oklahoma. Nichlos v. Hanbury-
Russell Supply Co., 168 Okl 371,
33 P2d 198.
Pennsylvania. Burns v. Pitts-
burgh Rys. Co., 109 PaSuper 490,
167 A 421.
Tennessee. Clinchiield R. Co. v.
Harvey, 16 TennApp 324, 64 SW2d
513.
21 Arkansas. Louisiana & N. W.
R. Co. v. J. P. Machen & Co., 174
Ark 122, 294 SW 714.
Illinois. Moore v. Aurora, E. &
C. R. Co., 246 111 56, 92 NE 573.
Missouri. Morrow v. Missouri Gas
6 Elec. Service Co., 315 Mo 367,
286 SW 106; Null v. Stewart (Mo),
78 SW2d 75; Roman v. Hendricks
(MoApp), 80 SW2d 907; Lyons v.
St. Joseph Belt Ry. Co. (MoApp),
84 SW2d 933.
22 Arkansas. Clark County Bank
v. Shaver, 184 Ark 1193, 42 SW2d
759.
Illinois. Mirkovich v. Maravich,
206 UlApp 463; Cyrulik v. Ritehey
Coal Co., 215 IllApp 254; King v.
Swanson, 216 IllApp 294.
Ohio. Where it was stated in a
special charge, and repeated often
in the general charge, that in order
§136
INSTRUCTIONS — RULES GOVERNING
392
where that matter is considered in other instructions.23 So, the
failure of an instruction on contributory negligence to cover the
doctrine of last clear chance is not fatal where that doctrine is
sufficiently covered by other instructions.24
If the instructions as a whole state the law correctly, an error
in a single instruction will not ordinarily work a reversal.25 Also,
to recover the plaintiff must prove
that death was the direct result of
the injury, omission of that con-
dition in one place toward the end
of the charge was immaterial. Cook
v. Industrial Comm., 32 ONP (N. S.)
83.
23 Missouri. It was not prejudi-
cial error where an inapt definition
of contributory negligence was fol-
lowed by other instructions explain-
ing what constituted contributory
negligence. Bongner v. Zeigenhein,
165 MoApp 328, 147 SW 182.
South Carolina. The fact that an
instruction on negligence did not
refer to the issue of contributory
negligence did not make it erroneous
where a later instruction charged
fully and correctly on contributory
negligence. Clifford v. Southern
Ry. Co., 87 SC 324, 69 SE 513.
Washington. Edwards v. Seattle,
R. & S. Ry. Co., 62 Wash 77, 113
P 563.
24 California. Stein v. United
Railroads, 159 Cal 368, 113 P 663.
Indiana. Public Utilities Co. v.
Walden, 69 IndApp 623, 122 NE 591.
Ohio. Cincinnati Trac. Co. v.
Schmidt, 22 OhApp 413, 153 NE
274.
Washington. O'Connell v. Home
Oil Co., 180 Wash 461, 40 P2d 991.
25 California. Klenzendorf v.
Shasta Union High School Dist., 4
CalApp2d 164, 40 P2d 878; Carrillo
v. Helms Bakeries, Ltd., 6 CalApp2d
299, 44 P2d 604.
Connecticut. Tappin v. Rider
Dairy Co., 119 Conn 591, 178 A 428,
Idaho. Hayhurst v. Boyd Hosp.,
43 Idaho 661, 254 P 528.
Illinois. Aldridge v. Morris, 337
IllApp 369, 86 NE2d 143.
Indiana. Pennsylvania R. Co. v.
Welsh, 93 IndApp 404, 178 NE 4,
den. reh. of 174 NE 821; Livingston
v. Rice, 96 IndApp 176, 184 NE 583;
Curnick v. Torbert, 101 IndApp 113,
194 NE 771.
Iowa. Kerr v. Tysseling (la), 239
NW 233.
Kentucky. Murphey's Exrx. v.
Clinkinger, 244 Ky 336, 50 SW2d
942.
Minnesota. Ward v. Bandel, 181
Minn 32, 231 NW 244.
Mississippi. Durrett v. Mississip-
pian Ry. Co., 171 Miss 899, 158 S
776.
Missouri. Jenkins v. Missouri
State Life Ins. Co., 334 Mo 941,
69 SW2d 666; Ivey v. Hanson, 226
MoApp 38, 41 SW2d 840 (instruction
held erroneous and not cured by
other instructions).
Nebraska. Wright v. Lincoln City
Lines, 163 Neb 679, 81 NW2d 170.
New Jersey. Lyon v. Fabricant,
113 NJL 62, 172 A 567, affg. 12
NJMisc 39, 169 A 548; Poling v.
Melee, 115 NJL 191, 178 A 737.
North Carolina. Fleming v. Char-
lotte Elec. Ry. Co., 193 NC 262,
136 SE 723.
Ohio. Dayton Biscuit Co. v.
Aerni, 40 OhApp 49, 177 NE 775,
34 OLR 346; Flynn v. Sharon Steel
Corp., 142 OhSt 145, 26 OhO 343,
50 NE2d 319.
Oklahoma. Tradesmens Nat. Bank
v. Harris, 145 Okl 54, 291 P 38;
Grayson v. Brown, 166 Okl 43, 26
P2d 204; Skaggs v. Gypsy Oil Co.,
169 Okl 209, 36 P2d 865; Oil Re-
claiming: Co. v. Reagin, 169 Okl 505,
37 P2d 289; Champlin Ref. Co. v.
Brooks, 172 Okl 124, 42 P2d 811;
Atchison, T. & S. F. Ry. Co. v.
Wood & Co., 171 Okl 510, 43 P2d
727; Johnson v. Short, 204 Okl 656,
23<2 P2d 944.
Oregon. United States Nat. Bank
v. Miller, 119 Or 682, 250 P 1098.
393
CONSTRUCTION AND EFFECT
§137
verbal defects and inaccuracies will be disregarded where the in-
structions as a whole clearly present the issues.26
Instructions presenting opposing theories of the parties
should be read together to determine the sufficiency of either.27
As will appear in following sections,28 the rule that instruc-
tions must be considered as a whole is not applied to cure error
by conflicting instructions.
§ 137. Construction of charge as an entirety in criminal cases.
The rule that a charge is construed as an entirety applies
with full force to instructions in criminal cases.
The charge must be viewed as a whole and each clause or
instruction must be considered in connection with others. If
when taken together they properly express the law applicable,
no ground of complaint exists, though a single clause or instruc-
tion is inaccurate or incomplete.29
Pennsylvania. Robinson v. Phila-
delphia Transp. Co., 347 Pa 288, 32
A2d 26.
South Carolina. Crouch v. Cudd,
158 SC 1, 155 SE 136.
West Virginia. Shumaker v.
Thomas, 108 WVa 204, 151 SE 178.
26 Arkansas. Russ v. Strickland,
144 Ark 642, 220 SW 451.
Connecticut. Adams v. Pierce, 94
Conn 613, 110 A 50 (use of plain-
tiff for defendant) ; Harris v. Schuer-
er, 106 Conn 506, 138 A 442.
Georgia. Rogers, Cassels & Flem-
ing v. Bennett, 19 GaApp 520, 91
SE 917.
Illinois. McConnell v. Chicago
Rys. Co., 199 IllApp 490; Wilson v.
Chicago Heights Terminal Transfer
R. Co., 212 IllApp 271 (mistake in
date).
Iowa. In re Champion's Estate,
190 la 451, 180 NW 174 (use of
"agreement" for "argument").
Missouri. Anderson v. Voeltz (Mo
App), 206 SW 584; Granneman v.
Commercial Auto Body Co. (Mo
App), 296 SW 437; Roman v. Hen-
dricks (MoApp), 80 SW2d 907.
Nebraska. Kocar v. Whelan, 102
Neb 50-3, 167 NW 775.
Ohio. Piqua v. Morris, 98 OhSt
42, 120 NE 300, 7 ALR 129 (failure
to define technical term).
A judgment based upon the find-
ing of a jury, supported by evidence,
will not be disturbed for technical
errors in the charge of the court,
where it appears from the entire
record that substantial justice has
been rendered under all the cir-
cumstances. Kronenberg v. Whale,
21 , OhApp 322, 153 NE 302.
The criterion as to whether an
instruction is correct is the fair
meaning of the language used. Cin-
cinnati Street Ry. Co. v. Henkel, 38
OhApp 243, 176 NE 101, 34 OLR
495,
A verbal slip in one part of the
general charge is not ground on
which to base error where the
charge as a whole fairly and ac-
curately states the proposition of
law relied upon by the complaining
party. Doepker v. Harding, 17 OLA
399.
27 White Swan Laundry v. Boyd,
212 Ky 747, 279 SW 345; Bowling
Green v. Knight, 216 Ky 838, 288
SW 741; Rosenberg v. Turner, 124
Va 769, 98 SE 763.
28 See §§ 138, 139, infra.
29 Federal. Boyd v. United
States, 271 US 104, 70 LEd 857, 46
SupCt 442, affg. 4 F2d 1014; Walsh
v. United States, 98 CCA 461, 174
F 615; Stout v. United States, 142
137
INSTRUCTIONS — RULES GOVERNING
394
CCA 323, 227 P 799; Le More v.
United States, 165 CCA 367, 253 F
887; Degnan v. United States, 271
F 291; Johnson v. United States, 59
F2d 42; Morrissey v. United States,
67 F2d 267; Clark v. United States,
69 F2d 258; Mansfield v. United
States, 76 F2d 224.
Alabama. Hope v. State, 21 Ala
App 491, 109 S 521; McMurphy v.
State, 4 AlaApp 20, 58 S 748.
Arizona. Faltin v. State, 17 Ariz
278, 151 P 952; Hann v. State, 30
Ariz 366, 247 P 129; Maseeh v.
State, 46 Ariz 94, 47 P2d 423.
Arkansas. Reed v. State, 102 Ark
525, 145 SW 206; Guerin v. State,
150 Ark 295, 234 SW 26.
California. People v. Akey, 163
Cal 54, 124 P 718; People v. Fowler,
178 Cal 657, 174 P 892; People v.
Watts, 198 Cal 776, 247 P 884; Peo-
ple v. Sprague, 52 CalApp 363, 198
P 820; People v. Johnson, 57 Cal
App 271, 207 P 257; People v. Mag-
gio, 140 CalApp 246, 35 P2d 369.
Connecticut. State v. Cabaudo, 83
Conn 160', 76 A 42; State v. Tobin,
90 Conn 58, 96 A 312; State v. Per-
retta, 93 Conn 328, 105 A 690.
Florida. Padgett v. State, 64 Fla
389, 59 S 946, ArniCas 1914B, 897;
Mathis v. State, 70 Fla 194, 69 S
©97; Ward v. State, 75 Fla 756, 79
5 699; Butler v. State, 94 Fla 163,
113 S 699.
Georgia. Helms v. State, 138 Ga
826, 76 SE 353; Moore v. State, 28
GaApp 553, 112 SE 155; Dudley v.
State, 28 GaApp 711, 113 SE 24;
Williams v. State, 29 GaApp 46, 113
SE 22.
Idaho. State v. Curtis, 29 Idaho
724, 161 P 578; Brayman v. Russell
6 Pugh Lbr. Co., 31 Idaho 140, 169
P 932; State v. Jurko, 42 Idaho 319,
245 P 685.
Illinois. People v. Strauch, 247 111
220, 93 NE 126; People v. Foster,
288 111 371, 123 NE 534; People v.
Laures, 289 111 490, 124 NE 585;
People v. Schwartz, 298 111 218, 131
NE 806; People v. Mundro, 326 111
324, 157 NE 167; People v. Hartwell,
341 111 155, 173 NE 112; People v.
Marsh, 403 111 81, 85 NE2d 715.
Indiana. Welty v. State, 180 Ind
411, 100 NE 73; Brewster v. State,
186 Ind 369, 115 NE 54; Koehler v.
State, 188 Ind 387, 123 NE 111;
Gielow v. State, 198 Ind 248, 153
NE 409; Anderson v. State, 205 Ind
607, 186 NE 316; Southerland v.
State, 209 Ind 308, 197 NE 841;
Peltz v. State, 232 Ind 518, 112 NE
2d 853.
Iowa. State v. Bell, 146 la 617,
125 NW 652; State v. Graves, 192 la
623, 185 NW 78; State v. Gibson,
204 la 1306, 214 NW 743.
Kansas. Zuspann v. Roy, 102 Kan
188, 170 P 387; State v. Ewing, 103
Kan 399, 173 P 927.
Kentucky. Smith v. Common-
wealth, 148 Ky 60, 146 SW 4; Bor-
derland Coal Co. v. Miller, 179 Ky
769, 201 SW 299; McGehee v. Com-
monwealth, 181 Ky 422, 205 SW 577;
Brock v. Commonwealth, 221 Ky
424, 298 SW 1087.
Maine. State v. Sanborn, 120 Me
170, 113 A 54.
Michigan. People v. Sharac, 209
Mich 249, 176 NW 431; People v.
Depew, 215 Mich 317, 183 NW 750.
Mississippi. Williams v. State, 95
Miss 671, 49 S 513; Carter v. State,
169 Miss 285, 152 S 876.
Missouri. State v. Hall, 228 Mo
456, 128 SW 745; State v. Burgess
(Mo), 193 SW 821; State v. Arnett
(Mo), 210 SW 82; State v. Reppley,
278 Mo 333, 213 SW 477; State v.
Caldwell (Mo), 231 SW 613; State
v. Robinett, 312 Mo 635, 281 SW 29;
Rappaport v. Roberts (Mo App), 203
SW 676.
Montana. State v. Van, 44 Mont
374, 120 P 479; State v. Smith, 57
Mont 563, 190 P 107; State v. Col-
bert, 58 Mont 584, 194 P 145.
Nebraska. Boche v. State, 84 Neb
845, 122 NW 72; Samuels v. State,
101 Neb 383, 163 NW 312; Mauzy v.
State, 103 Neb 775, 174 NW 325;
Browne v. State, 115 Neb 225, 212
NW 426.
New Jersey. State v. Timmerari,
96 NJL 442, 115 A 394; State v.
Martin, 102 NJL 388, 132 A 93;
State v. Di Dolce, 109 NJL 233, 160
395
CONSTRUCTION AND EFFECT
§137
Inartificiality of expression or slight mere inaccuracy in some
of the language will be disregarded where it is virtually corrected
by the general import of the entire charge.30
A 516; State v. Peterson, 10 NJ
155, 89 A2d 680.
New York. People v. Sanducci,
195 NY 361, 88 NE 385.
North Carolina. State v. Fowler,
151 NC 731, 66 SE 567; State v.
Wentz, 176 NC 745, 97 SE 420;
State v. Jones, 182 NC 781, 108 SE
376; State v. Baldwin, 183 NC 682,
112 SE 419; State v. Brinkley, 183
NC 720, 110 SE 783; State v. Shef-
field, 183 NC 783, 111 SE 617.
North Dakota. State v. Finlayson,
22 ND 233, 133 NW 298; State v.
Berenson, 65 ND 480, 260 NW 256.
Ohio. Eckels v. State, 20' OhSt
508; Graham v. State, 98 OhSt 77,
120 NE 232, 18 ALR 1272; State v.
Karayians, 108 OhSt 505, 141 NE
334.
If from the entire charge it ap-
pears that a correct statement of
the law was given, so that the jury
could not have been misled, there
is no prejudicial error. Schomer v.
State ex rel. Bettman, 47 OhApp 84,
190 NE 638.
A jury is not likely to have been
misled by omission in one place in
the charge of the words "prima
facie," where the court used these
words in the proper relation several
times. Deibel v. State, 30 OLE
378.
Oklahoma. Rogers v. State, 15
OklCr 434, 183 P 41; January v.
State, 16 OklCr 166, 181 P 514;
Sherman v. State, 19 OklCr 269, 200
P 262; Wilkie v. State, 33 OklCr
225, 242 P 1057; Tritthart v. State,
35 OklCr 41, 247 P 1111; Campion
v. State, 56 OklCr 49, 33 P2d 511.
Oregon. State v. Hinton, 56 Or
428, 109 P 24; State v. Rosasco, 103
Or 343, 205 P 290.
Pennsylvania. Commonwealth v.
Legins, 285 Pa 97, 131 A 667.
The court is not bound to repeat
legal principles every time he takes
up a new phase, but charge will be
sustained if, when interpreted as a
whole, it is a correct and an im-
partial presentation of case. Com-
monwealth v. Webb, 252 Pa 187, 97
A 189.
South Carolina. State v. Jones, 90
SC 290, 73 SE 177; State v. Kilgore,
105 SC 261, 89 SE 668; State v.
Burton, 111 SC 526, 98 SE 856; State
v. Randall, 118 SC 158, 110' SE 123.
South Dakota. State v. Sonnen-
schein, 37 SD 585, 159 NW 101.
Texas. Pinson v. State, 68 TexCr
311, 151 SW 556; Arensman v. State,
79 TexCr 546, 187 SW 471; Ander-
son v. State, 86 TexCr 207, 217 SW
390; Johnson v. State, 86 TexCr 276,
216 SW 192; Stroud v. State, 127
TexCr 486, 77 SW2d 237; McCann
v. State, 129 TexCr 105, 83 SW2d
967.
Utah. State v. Cerar, 60 Utah
208, 207 P 597.
Vermont. State v. Orlandi, 106
Vt 165, 170 A 908.
Virginia. Wright v. Common-
wealth, 109 Va 847, 65< SE 19; Sta-
pleton v. Commonwealth, 123 Va
825, 96 SE 801.
Washington. State v. Wappen-
stein, 67 Wash 502, 121 P 989; State
v. Rappaport, 136 Wash 603, 241
P 4.
West Virginia. State v. Driver, 8S
WVa 479, 107 SE 189, 15 ALR 917;
State v. Long, 88 WVa 669, 108 SE
279; State v. Kincaid, 104 WVa 396,
140 SE 338.
Wisconsin. Eckman v. State, 191
Wis 63, 209 NW 715.
Wyoming. Loy v. State, 26 Wyo
381, 185 P 796; Flanders v. State,
24 Wyo 81, 156 P 39, 1121.
30 Federal. Hargreaves v. United
States, 75 F2d 68.
Arkansas. Lindsey v. State, 151
Ark 227, 235 SW 782 ("sale" instead
of "purchase" of intoxicants).
Georgia. Thomas v. State, 27 Ga
App 38, 107 SE 418.
Illinois. People v. Savant, 301
111 225, 1S3 NE 775.
§137
INSTRUCTIONS — BULBS GOVERNING
396
The rule Is applied in cases where the contention is that the
instruction is misleading,31 or confusing,32 or is abstract.33 So,
the instruction is construed as a whole where the claim is that
the province of the jury is invaded,34 as by an instruction ex-
pressive of an opinion by the court,35 or is argumentative,36 or
assumes facts,37 or is upon the weight of the evidence,38 or
New Jersey. State v. Timmerari,
96- NJL 442, 115 A 394.
New York. People v. Russell, 266
NY 147, 194 NE 65.
North Carolina. State v. Robin-
son, 181 NC 516, 106 SE 155.
Oklahoma. Murnand v. State, 18
OklCr 426, 195 P 787; McCarty v.
State, 21 OklCr 365, 207 P 1069;
Thompson v. State, 53 OklCr 342,
11 P2d 772.
Pennsylvania. Commonwealth v.
Carney, 74 PaSuper 262.
Texas. McBride v. State, 121 Tex
Cr 409, 51 SW2d 385.
Washington. State v. Enionds,
107 Wash 688, 182 P 584.
W^est Virginia. State v. Galford,
87 WVa 358, 105 SE 237.
31 Federal. Pomerantz v. United
States, 51 F2d 911.
California. People v. Swan, 188
Cal 759, 207 P 386; People v. Wyett,
49 CalApp 289, 193 P 153.
Georgia. Phillips v. State, 149 Ga
255, 99 SE 874.
Indiana. Kocher v. State, 189 Ind
578, 127 NE 3; Cox v. State, 207
Ind 553, 194 NE 149.
Iowa. State v. Howard, 191 la
728, 183 NW 482.
Missouri. State v. Cain (MoApp),
31 SW2d 559.
Nebraska. Mclntosh v. State, 105
Neb 328, 180 NW 573, 12 ALR 798.
New York. People v. Trimarchi,
231 NY 263, 131 NE 910.
Oregon. State v. Turnbow, 99 Or
270, 193 P 485, 195 P 569.
South Carolina. Sandel v. State,
115 SC 168, 104 SE 567, 13 ALR
1268.
Texas. Davis v. State, 77 TexCr
598, 179 SW 702.
Washington. State v. Sowders,
109 Wash 10, 186 P 260.
32 Underwood v. State, 146 Ga
137, 90 SE 861; Hawkins v. State,
16 OklCr 382, 186 P 490.
33 Arkansas. Bird v. State, 154
Ark 297, 242 SW 71.
Florida. Barton v. State, 72 Fla
408, 73 S 230.
Iowa. State v. Pelser, 182 la 1,
163 NW 600'.
34 Arkansas. Camp v. State, 144
Ark 641. 215 SW 170; Markham v.
State, 149 Ark 507, 233 SW 676.
California. People v. Wolff, 182
Cal 728, 190 P 22; People v. Gibson,
39 CalApp 202, 178 P 338.
Connecticut. State v. Thomas, 105
Conn 757, 136 A 475.
Michigan. People v. Lintz, 203
Mich 683, 169 NW 918.
Pennsylvania. Commonwealth v.
Bishop, 285 Pa 49, 131 A 657; Com-
monwealth v. Winter, 289 Pa 284,
137 A 261.
35 Federal. Shea v. United States,
163 CCA 458, 251 F 440'.
California. People v. Zarate, 54
CalApp 372, 201 P 955 (confessions).
Georgia. Towns v. State, 149 Ga
613, 101 SE 678; Wilson v. State,
152 Ga 337, 110 SE 8; Weldon v.
State, 21 GaApp 330, 94 SE 326;
Washington v. State, 24 GaApp 65,
100 SE 31; Lamb v. McAfee, 26 Ga
App 3, 105 SE 250; Smith v. State,
28 GaApp 125, 110 SE 752.
36 Arkansas. Nick v. State, 144
Ark 641, 215 SW 899.
Connecticut. State v. Reynolds,
95 Conn 186, 110 A 844.
Georgia. Cox v. State, 17 GaApp
727, 88 SE 214.
37 State v. Daems, 97 Mont 486,
37 P2d 322; State v. Mueller, 40 ND
35, 168 NW 66.
38 California. People v. Chiap-
pari, 81 CalApp 207, 253 P 338.
Illinois. People v. Sepich, 237 111
App 178.
397
CONSTRUCTION AND EFFECT
§137
which singles out and gives emphasis to the testimony of a par-
ticular witness.39
The rule is properly invoked for erroneous or insufficient in-
structions on the following matters: reasonable doubt;40 recent
possession of stolen property;41 rules of evidence as to pre-
sumptions and burden of proof;42 weight of evidence as to
character and reputation;43 testimony of experts,44 accom-
Michigan. People v. Quigley, 217
Mich 213, 185 NW 787.
New Jersey. State v. Merra, 103
NJL 361, 137 A 575.
North Dakota. State v. Severin,
58 ND 792, 228 NW 199.
Pennsylvania. Commonwealth v.
Martin, 98 PaSuper 13.
South Carolina. State v. Cooper,
118 SC 300, 110' SE 152.
39McKinney v. State, 140 Ark
529, 215 SW 723; State v. Rim, 151
La 163, 91 S 664.
40 Federal. Shea v. United States,
163 CCA 451, 251 F 433; Sotello v.
United States, 168 CCA 67, 256 F
721.
Alabama. Brown v. State, 15 Ala
App 611, 74 S 733.
Georgia. Phillips v. State, 149 Ga
255, 99 SE 874; Ponder v. State, 18
GaApp 727, 90 SE 376; Walker v.
State, 26 GaApp 70, 105 SE 717;
Phillips v. State, 26 GaApp 263, 105
SE 823; Waddell v. State, 29 Ga
App 33, 113 SE 94.
Indiana. Scherer v. State, 188 Ind
14, 121 NE 369; Campbell v. State,
197 Ind 112, 149 NE 903.
Michigan. People v. Williams, 208
Mich 586, 175 NW 187; People v.
Maglich, 234 Mich 88, 207 NW 865
(where the court told the jury that
"reasonable doubt" was not in-
tended as a stumbling block for the
jury).
Mississippi. Hall v. State, 128
Miss 641, 91 S 397.
North Carolina. State v. Bailey,
179 NC 724, 102 SE 406; State v.
Walker, 193 NC 489, 137 SE 429.
Oregon. State v. Morris, 83 Or
429, 163 P 567.
South Carolina. State v. Cooper,
118 SC 300, 110 SE 152; State v.
Sharpe, 138 SC 58, 135 SE 635.
Texas. Allen v. State, 122 TexCr
159, 54 SW2d 519.
Utah. State v. Green, 86 Utah
192, 40 P2d 961.
Virginia. McCoy v. Common-
wealth, 133 Va 731, 112 SE 704.
Washington. State v. Lance, 94
Wash 484, 162 P 574.
4 ! Alabama. Driver v. State, 18
AlaApp 261, 89 S 897; Gilbreath v.
State, 23 AlaApp 579, 129 S 312.
California. People v, Stennett, 51
CalApp 370, 197 P 372; People v.
Mackey, 58 CalApp 123, 208 P 135.
Kansas. State v. Badgley, 140
Kan 349, 37 P2d 16.
Minnesota. State v. Couplin, 146
Minn 189, 178 NW 486; State v.
Jatal, 152 Minn 262, 188 NW 284.
North Carolina. State v. Jenkins,
182 NC 818, 108 SE 767.
South Dakota. State v. James, 39
SD 263, 164 NW 91.
Wisconsin. McGillis v. State, 177
Wis 522, 188 NW 597.
42 Federal. DelFAira v. United
States, 10 F2d 102.
Arkansas. Williams v. State, 149
Ark 601, 233 SW 776.
Florida. Blackwell v. State, 79 Fla
709, 86 S 224, 15 ALR 465.
Georgia. Robinson v. State, 18 Ga
App 394, 89 SE 434 (presumption of
innocence) ; Walker v. State, 26 Ga
App 70, 105 SE 717.
Illinois. People v. Haensel, 293
111 33, 127 NE 181 (presumption of
sanity).
Louisiana. State v. Rini, 151 La
163, 91 S 664.
Montana. State v. Colbert, 58
Mont 584, 194 P 145 (insanity).
New Jersey. State v. Tachin, 93
NJL 485, 108 A 318.
43 Hood v. State, 18 AlaApp 287,
92 S 30; Commonwealth y, Ten-.
§137
INSTRUCTIONS— RULES GOVERNING
398
plices,45 detectives,46 or interested parties;47 the presumption
from the flight of accused;48 or definition of a "conspirator/'49
The entire charge is to be consulted where a single instruc-
tion or part of an instruction insufficiently states or omits to
state the elements of the offense,50 or the defense of alibi51 and
self-defense.52
The rule of entirety in construction applies to cases in which
the instructions are partly oral and partly written.53
broeck, 265 Pa 251, 108 A 635; Com-
monwealth v. De Paima, 268 Pa 25,
110 A 756.
44 State v. Weagley, 286 Mo 677,
228 SW 817.
45 Jelke v. United States, 166 CCA
434, 255 F 264; Levine v. United
States, 79 F2d 364; State v. Martin
(Mo), 56 SW2d 137,
46 People v. Utter, 217 Mich 74,
185 NW 830.
47 People v. Washburn, 54 CalApp
124, 201 P 335 (defendant); People
v. Wassmus, 214 Mich 42, 182 NW
66.
48 State v. Chin Borkey, 91 Or
606, 176 P 195.
49 Commonwealth v. Perri, 97 Pa
Super 78.
50 Arkansas. Hines v. State, 140
Ark 13, 215 SW 735.
California. People v. Lathrop, 49
CalApp 63, 192 P 722.
Connecticut. State v. Reynolds, 95
Conn 186, 110 A 844.
Georgia. Carter v. State, 26 Ga
App 253, 105 SE 652.
Kentucky. Long- v. Common-
wealth, 177 Ky 391, 197 SW 843;
Copley v. Commonwealth, 184 Ky
185, 211 SW 558.
Nebraska. Francis v. State, 104
Neb 5, 175 NW 675.
New Jersey. State v. Unger, 93
NJL 50, 107 A 270.
North Carolina. State v. Taylor,
175 NC 833, 96 SE 22.
South Carolina. State v, Hanahan,
111 SC 58, 96 SE 667.
Washington. State v. Denby, 143
Wash 288, 255 P 141.
Wyoming. Loy v. State, 26 Wyo
381, 185 P 796.
5 ' Long v. State, 170 Ark 1193,
278 SW 648; Horton v. State, 21 Ga
App 120, 93 SE 1012; McDonald v.
State, 21 GaApp 125, 94 SE 262.
52 Alabama. Williams v. State,
26 AlaApp 531, 163 S 663, cert. den.
in 163 S 667.
Arkansas. Branscum v. State, 134
Ark 66, 203 SW 13; Slaytor v. State,
141 Ark 11, 215 SW 886; Mallory
v. State, 141 Ark 496, 217 SW 482;
Fields v. State, 154 Ark 188, 241
SW 901.
Georgia. Rutland v. State, 28 Ga
App 145, 110 SE 634.
Illinois. People v. Woodward, 337
111 493, 169 NE 321.
Kentucky. Decker v. Common-
wealth, 195 Ky 64, 241 SW 817.
Louisiana. State v. Joiner, 161 La
518, 109 S 51.
Ohio. Koppe v. State, 21 OhApp
33, 153 NE 109.
Oklahoma. Smith v. State, 20 Okl
Cr 301, 202 P 519.
Pennsylvania. Commonwealth v.
Corsino, 261 Pa 593, 104 A 739.
South Carolina. State v. Gandy,
113 SC 147, 101 SE 644.
Texas. Goree v. State, 106 TexCr
528, 293 SW 827; Matthews v. State,
118 TexCr 468, 38 SW2d 815.
53Newsom v. State, 15 AlaApp
43, 72 S 579.
399
CONSTRUCTION AND EFFECT
138
§ 138. Cure of erroneous instruction by correct instruction in
civil cases.
A prejudicial instruction cannot be cured by a correct in-
struction which does not call the jury's attention to the prejudi-
cial instruction.
While ambiguities or omissions in one instruction may some-
times be corrected in another instruction without confusing- the
jury, it is rare that positive error can be so corrected, A material
error in an instruction, complete in itself, is not cured by a cor-
rect statement of law in another instruction, for the jury cannot
know which instruction is correct and the court cannot know
which instruction influenced the jury.54 There is no presumption
54 Federal. Schroble v. Lehigh
Valley R. Co., 62 F2d 993; Shell
Pipe Line Co. v. Robinson, 66 F2d
861.
Alabama. New York Life Ins.
Co. v. Jenkins, 229 Ala 474, 158 S
309 (erroneously placing burden of
proof).
Arizona. Instruction that damages
must be based upon the evidence in
the case did not cure the error in
another instruction which author-
ized the allowance of damages for
medical bills where there was no
evidence to justify the allowance.
Atchison, T. & S. F. Ry. Co. v.
Gutierrez, 30 Ariz 491, 249 F 66.
Arkansas. St. Louis, I. M. & S.
Ry. Co. v. Beecher, 65 Ark 64, 44
SW 715; St. Louis, I. M. & S. Ry.
Co. v. Thompson-Hailey Co., 79 Ark
12, 94 SW 707; St. Louis, I. M. &
S. Ry. Co. v. Woods, 96 Ark 311,
131 SW 869, 33 LRA (N. S.) 855;
Hodge & Downey Constr. Co. v. Car-
son, 100 Ark 433, 140 SW 708; Oak
Leaf Mill Co. v. Cooper, 103 Ark 79,
146 SW 130; Marianna Hotel Co. v.
Livermore Foundry & Mach. Co., 107
Ark 245, 154 SW 952; Cloar v.
Earle Compress Co., 150 Ark 419,
234 SW 272.
California. Miner v. Dabney-
Johnson Oil Corp., 219 Cal 580, 28
P2d 23; Kalash v. Los Angeles Lad-
der Co., 1 Cal2d 229, 34 P2d 481;
Mortensen v. Fairbanks, 1 Cal2d
489, 35 P2d 1030; Dameron v. Ans-
bro, 39 CalApp 289, 178 P 874; Gas-
ter v. Hinkley, 85 CalApp 55, 258
P 988; Ward v. Read (CalApp), 16
P2d 799; Thompson v. Dentman,
131 CalApp 680, 21 P2d 1009; Mag-
gini v. West Coast Life Ins. Co., 136
CalApp 472, 29 P2d 263.
Colorado. Alpha Realty & Rental
Co. v. Randolph, 23 ColoApp 69, 127
P245.
Georgia. Morris v. Warlick, 118
Ga 421, 45 SE 407; Central of
Georgia Ry, Co. v. Deas, 22 GaApp
425, 96 SE 267; Meritas Mills v.
Way, 23 GaApp 354, 98 SE 237;
Southern Groc. Stores v. Cain, 50
GaApp 629, 179 SE 128.
Illinois. Pardridge v. Cutler, 168
111 504, 48 NE 125; Chicago & A. R.
Co. v. Keegan, 185 111 70, 56 NE
1088; McDonald v. Chicago Rys. Co.,
286 111 239, 121 NE 571; Herring v.
Chicago & A. R. Co., 299' 111 214,
132 NE 792; Hurzon v. Schmitz,
262 IllApp 337; Luke v. Marion,
271 IllApp 48.
Indiana. McCole v. Loehr, 79 Ind
430; Indiana Natural Gas & Oil Co.
v. Vauble, 31 IndApp 370, 68 NE
195; Pittsburgh, C., C. & St. L. R.
Co. v. Boughton, 81 IndApp 129, 142
NE 869.
Iowa. Ford v. Chicago, R. I. &
P. Ry. Co., 106 la 85, 75 NW 650;
Rudd v. Bewey, 121 la 454, 96 NW
973; Desmond v. Smith, 219 la 83,
257 NW 543.
Kansas. Pfeifer v. Basgall, 112
Kan 269, 211 P 134.
Kentucky. Chicago, M. & G. R,
§138
INSTRUCTIONS — RULES GOVERNING
400
Co. v. Stahr, 184 Ky 529, 212 SW
115; Stover v. Cincinnati, N. & C.
By. Co., 252 Ky 425, 67 SW2d 484.
Massachusetts. Gray v. Kinnear,
290 Mass 31, 194 NE 817.
Minnesota. Poppe v. Bowler, 184
Minn 415, 238 NW 890.
Mississippi. Clegg v. Johnson, 164
Miss 198, 143 S 848; Russell v. Wil-
liams, 168 Miss 181, 150 S 528, 151
S 372; Columbus & G. R. Co. v.
Coleman, 172 Miss 514, 160 S 277.
An erroneous instruction is not
cured by other instructions embody-
ing other facts and not modifying
or explaining it. Godfrey v. Meri-
dian Ry. & Light Co., 101 Miss 565,
58 S 534.
Missouri. McCoy v. Hill, 296 Mo
135, 246 SW 582; Macklin v. Fogel
Constr. Co., 326 Mo 38, 31 SW2d
14; Dawes v. Starrett, 336 Mo 897,
82 SW2d 43; Herbert v. Mound City
Boot & Shoe Co., 90 MoApp 305;
Sands v. G. W. Marquardt & Sons,
113 MoApp 490, 87 SW 1011; Cordy
v. Manufacturers' Coal & Coke Co.,
151 MoApp 455, 132 SW 21; Pyburn
v. Kansas City, 166 MoApp 150, 148
SW 193; Flintjer v. Kansas City
(MoApp), 204 SW 951; Murdock v.
Dunham (MoApp), 206 SW 915;
Schaff v. Nelson (MoApp), 285 S
1036; Zeikle v. St. Paul & K. C, S,
L. R. Co. (MoApp), 71 SW2d 154;
Mott v. Chicago, R. I. & P. Ry. Co.
(MoApp), 79 SW2d 1057 (erron-
eously placing burden of proof);
State ex rel. State Highway Comm.
v. Seheer (MoApp), 84 SW2d 641.
An instruction founded upon the
humanitarian rule which permitted
a recovery upon a ground of negli-
gence not alleged was not cured by
correct instruction for defendant.
Arata v. Metropolitan Street Ry.
Co., 167 MoApp 90, 150 SW 1122.
Montana. Smith v. Perham, 33
Mont 309, 83 P 492; Nagle v. Bil-
lings, 77 Mont 205, 250 P 445.
Nebraska. Missouri Pacific Ry.
Co. v. Fox, 56 Neb 746, 77 NW ISO-
Standard Distilling & Distributing
Co. v. Harris, 75 Neb 480, 106 NW
582; Koehn v. Hastings, 114 Neb
106, 206 NW 19; Wilch v. Western
Asphalt Paving Corp., 124 Neb 177,
245 NW 605; Brooks v. Thayer
County, 126 Neb 610, 254 NW 413.
New Jersey. State v. Tachin, 92
NJL 269, 106 A 145; Friel v. Wild-
wood Ocean Pier Corp., 129 NJL
376, 29 A2d 554.
Error in charging that burden of
proof shifted where the doctrine of
res ipsa loquitur applied was not
obviated by another charge upon the
subject correctly stating the rule.
Nemecz v. Morrison & Sherman, 109
NJL 517, 162 A 622.
New Mexico. State v. Crosby, 26
NM 318, 191 P 1079.
North Carolina. Jones v. Life Ins.
Co., 151 NC 54, 65 SE 602; Warren
v. Armour Fertilizer Works, 191 NC
416. 131 SE 723.
Ohio. Pettibone v. McKinnon, 125
OhSt 605, 183 NE 786.
A misleading and incomplete spe-
cial charge is not cured by the gen-
eral charge. Krekeler v. Cincinnati
Trac. Co., 16 OhApp 125.
An erroneous charge as to burden
of proof in action for killing dogs
was held not cured by correct in-
struction later. Smith v. Ward, 32
OhApp 177, 166 NE 396.
Oklahoma. Welge v. Thompson,
103 Okl 114, 229 P 271.
Oregon. Provo v. Spokane, P. &
S. R. Co., 87 Or 467, 170 P 522; An-
derson v. Columbia Contract Co., 94
Or 171, 184 P 240, 185 P 231, 7 ALR
653.
Pennsylvania. Fitzpatrick v. Un-
ion Trac, Co., 206 Pa 335, 55 A 1050;
Commonwealth v. Divomte, 262 Pa
504, 105 A 821; Irwin Gas Coal Co.
v. Logan Coal Co., 270 Pa 443, 113
A 667; Parish Mfg. Corp. v. Martin-
Parry Corp., 285 Pa 131, 131 A 710.
South Carolina. Dickson v. Epps,
104 SC 381, 89 SE 354.
Tennessee. Citizens Street Ry. Co.
v. Shepherd, 107 Tenn 444, 64 SW
710.
Texas. Missouri, K. & T. Ry. Co.
v. Mills, 27 TexCivApp 245, 65 SW
74; Petty v. Jordan-Spencer Co. (Tex
CivApp), 135 SW 227; Baker v. Ma-
gee (TexCivApp), 136 SW 1161;
Wilkinson v. Fralin (TexCivApp),
401
CONSTRUCTION AND EFFECT
§138
that the jury followed the correct instruction rather than a
conflicting one that was erroneous.55 In jurisdictions where oral
instructions are permitted, an error in an oral charge is not cured
by a statement of the correct rule in a written instruction.56 The
principle is especially plain in a case where the wrong rule is
concretely applied to facts and the right rule abstractly stated.57
Although it is not necessarily prejudicially erroneous when
there is a conflict between instructions,58 most courts would hold
that the only way an erroneous instruction can be cured by a
correct one that accompanies it is to withdraw it from the jury's
consideration,59
Illustrations of the application of the rule follow.
Generally. An instruction may be incurable for assuming
facts in dispute.60 The error of an instruction presenting a wrong
149 SW 548; Ft. Worth & R. G. Ry.
Co. v. Bryson & Burns (TexCiv
App), 195 SW 1165; St. Louis
Southwestern Ry. Co. v. Roach-
Manigan Paving Co. (TexCiv App),
209 SW 182; Texas & Pacific Ry. Co.
v. Gibson (TexComApp), 288 SW
823, affg. 281 SW 652.
Utah. Sorenson v. Bell, 51 Utah
262, 170' P 72.
Vermont. Farmers E x c h . v.
Brown, 106 Vt 65, 169 A 906.
Virginia. Continental Casualty
Co. v. Peltier, 104 Va 222, 51 SE
209 ; Washington-Southern Ry. Co. v.
Grimes' Admr., 124 Va 460, 9& SE
30; Hines v. Beard, 130 Va 286, 107
SE 717; Gale v. Wilber, 163 Va 211,
175 SE 739; James v. Haymes, 16S
Va 873, 178 SE 18.
West Virginia. Ward v. Ward, 47
WVa 766, 35 SE 873; Stuck v. Kan-
awha & M. Ry. Co., 78 WVa 490,
89 SE 280; Producers' Coal Co. v.
Mifflin Coal Min. Co., 82 WVa 311,
95 SE 948; Liston v. Miller, 113 W
Va 730, 169 SE 398.
Wisconsin. Eggett v. Allen, 106
Wis 633, 82 NW 556; Driscoll v. Al-
lis-Chalmers Co., 144 Wis 451, 129
NW 401; Carle v. Nelson, 145 Wis
593, 130 NW 467.
Wyoming. Acme Cement Plaster
Co. v. Westman, 20 Wyo 143, 122 P
89; McClintock v. Ayres, 36 Wyo
132, 253 P 658, 255 P 355.
55 Hoover v. Haggard, 219 la
1232, 260 NW 540; Westropp v. E.
W. Scripps Co., 148 OhSt 365, 35
OhO 341, 74 NE2d 340.
56 Johnson v. Louisville & N. R.
Co., 227 Ala 103, 148 S 822; Bir-
mingham v. Latham, 230 Ala 601,
162 S 675.
57 Arkansas. Natural Gas & Fuel
Co. v. Lyles, 174 Ark 146, 294 SW
395 (omitting contributory negli-
gence and assumption of risk).
Georgia. Pelham Mfg. Co. v.
Powell, 6 GaApp 308, 64 SE 1116.
Kansas. Kastrup v. Yellow Cab &
Baggage Co., 124 Kan 375, 260 P
635.
Missouri. Bentley v. Hurley, 222
MoApp 51, 299 SW 604.
Ohio. See also Stark v. Cress, 4
OhApp 92, 22 OhCirCt (N. S.) 88,
28 OhCirDec 442; Sablack v. Glenn,
58 OLA 348, 96 NE2d 417.
58 California. Beckley v. Archer,
74 CalApp 598, 241 P 422.
Georgia. Neville v. National Life
& Ace. Ins. Co., 36 GaApp 8, 135
SE 315.
Washington. Milne v. Seattle, 20
Wash2d 30, 145 P2d 888.
See also § 141, infra.
SQ Gary Rys., Inc. v. Chumcoff,
122 IndApp 139, 96 NE2d 685;
Evans v. Evans, 121 IndApp 104, 96
NE2d 688; Cox v. Rosenvinge, 4 NJ
Misc 949, 135 A 59; O'Donnell v.
Kraut, 242 Wis 268, 7 NW2d 889.
See also cases in note 54, supra.
60 Alabama. Louisville & N. R.
§138
INSTRUCTIONS — RULES GOVERNING
402
theory of an entire case is not cured by other instructions on
the right theory.61 Very clearly an incorrect instruction or an
instruction omitting any essential element cannot be cured by
another incorrect instruction.62
Matters of evidence. In one of the cases it is held that an
instruction unduly emphasizing the evidence of one of the parties
Co. v. Rush, 22 AlaApp 195, 114 S
21.
California. Smith v. Hollander, 85
CalApp 535, 259 P 958.
Missouri. Boyer v. General Oil
Products (MoApp), 78 SW2d 450.
6' Flucks v. St. Louis, I. M. & S.
Ry. Co., 143J MoApp 17, 122 SW
348. See State ex rel. State High-
way Comm. v. Sharp (MoApp), 62
SW2d 928; Christner T. Chicago, R.
I. & P. By. Co., 228 MoApp 220, 64
SW2d 752.
62 Alabama. Johnson v. Louis-
ville & N. R. Co., 220 Ala 649, 127
S 216.
Arkansas. Kelly Handle Co. v.
Shanks, 146 Ark 208, 225 SW 302;
Edgar Lbr. Co. v. Denton, 156 Ark
46, 245 SW 177; Herring- v. Bol-
linger, 181 Ark 925, 29 SW2d 676.
California. Starr v. Los Angeles
By. Corp., 187 Cal 270, 201 P 599;
Dahms v. General Elev. Co. (Cal
App), 1 P2d 446; White v. Davis,
103 CalApp 531, 284 P 1086 (con-
tributory negligence) ; Dow v.
Southern Pacific Co., 105 CalApp
378, 288 P 89- (eliminating question
of speed of train at street cross-
ing) ; Wessling v. Southern Pacific
Co., 116 CalApp 447, 3 P2d 22
(statement that certain act of motor-
ist was negligence) ; La Rue v.
Powell, 5 CalApp2d 439, 42 P2d
1063.
Illinois. Garvey v. Chicago Rys.
Co., 339 111 276, 171 NE 271; Dean
v. Yelloway Pioneer System, 259 111
App 180 (too high a degree of care
required).
Indiana. Union City v. Fisher, 91
IndApp 672, 173 NE 330.
Kentucky. Gibraltar Coal Min.
Co. v. Miller, 233 Ky 129, 25 SW2d
38 (duty of coal company to furnish
reasonably safe place to work).
Maryland. Washington, B. & A.
R. Co. v. State, 136 Md 103, 111 A
163.
Michigan. Karl v. New York
Cent. R. Co., 262 Mich 457, 247 NW
715.
Mississippi. Ellis v. Ellis, 160
Miss 345, 134 S 150 (placing bur-
den of proof on contestant to show
that signature to will was forgery) ;
Durrell v. Mississippian Ry. Co., 171
Miss 899, 158 S 776.
Missouri. State ex rel. Long v. El-
lison, 272 Mo 571, 199 SW 984;
Jenkins v. Missouri State Life Ins.
Co., 334 Mo 941, 69 SW2d 666; Mc-
Combs v. Ellsberry, 357 Mo 491, 85
SW2d 135; McDonough v. Freund
(MoApp), 39 SW2d 818 (that jury
was not bound to believe expert
testimony as against their own judg-
ment) ; Trippennsee v. Schmidt (Mo
App), "52 SW2d 197; La Font v.
Bryant (MoApp), 60 SW2d 415; Mc-
Combs v. Bowen, 228 MoApp 754,
73 SW2d 300.
New York. Heibeck v. Hess, 228
AppDiv 194, 239 NYS 200 (colli-
sion of automobiles, charge giving
superior right to leading car and as-
suming driver of rear car was neg-
ligent) ; Dee v. Spencer, 233 AppDiv
217, 251 NYS 311; Rella v. National
City Bank, 240 AppDiv 513, 271 NYS
51.
Texas. Kansas City, M. & 0. Ry.
Co. v. Foster (TexCivApp), 38 SW2d
391 (authorizing consideration of
element of damages not pleaded).
Vermont. Newman v. Kendall,
103 Vt 421, 154 A 662 (measure of
damages).
West Virginia. Shaver v. Consoli-
dation Coal Co., 108 WVa 365, 151
SE 326 (instruction to find for plain-
tiff ignored a material defense) ;
Curry v. New Castle Auto Exp., 112
WVa 268, 164 SE 147.
403 CONSTRUCTION AND EFFECT § 138
was held not cured by another instruction that the jury were
not to be governed thereby but to determine itself what the
evidence was.63 A general charge as to preponderance of the
evidence is not curative of the error in an instruction which re-
quires fraud as a defense to an action on a note to be proved
clearly and convincingly.64
Negligence. In damage action based on negligence other in-
structions cannot cure erroneous charge that from proof of the
employee's injury there arose a presumption that the employer
was negligent and that the employer carried the burden of prov-
ing due care.65 It is reversible error, not cured by other instruc-
tions, for the court to charge in a negligence case that the em-
ployer was guilty of actionable negligence if the place had become
unsafe in which to work, or the appliances had become broken
and dangerous.66
In a negligence case other instructions are not curative of the
error in one which incorrectly places the burden of proving con-
tributory negligence.67 Other instructions cannot cure the error
in a charge that an injured person who had taken an unsafe way
was guilty of negligence.68 In action brought under federal Em-
ployers' Liability Act, additional charge could not cure the error
in an instruction to disregard contributory negligence if the
injury occurred while the plaintiff was engaged in interstate
commerce.69
Wills. In will contest case an error in an instruction defining
"sound mind" without referring otherwise to the elements of
testamentary capacity, was not cured by other instructions which
included such elements in the definition.70
Insurance. In an action to recover on a life policy, on the
ground of death by accidental means, an instruction correctly
63 Demara v. Rhode Island Co. A charge of court which required
(RI), 103 A 708. the plaintiff to show by a prepon-
64 Korona Jewelry & Music House derance of evidence that at the time
v. Loveland, 25 OhApp 116, 157 NE of the accident she was in the exer-
500; Hunt v. Sherrill, 195 Miss 688, cise of due and ordinary care for her
15 S2d 426. own safety, is prejudicial error, even
Contra: Richards v. Millard', 146 if the court later correctly placed
Wis 552, 131 NW 365; DeGroot the burden. McCombs v. Landes,
v. Veldboom, 167 Wis 107, 166 NW 35 OhApp 164, 171 NE 862, 32 OLR
662. 199.
65 Geneva Mill Co. v. Andrews, 11 6S Huggin v. Gaffney, 134 SC 114,
P2d 924. 132 SE 163.
66 Champlin Ref. Co. T. Puekett, 69 Lierness v. Long Island R. Co.,
118 Okl 300, 248 P 610. 217 AppDiv 301, 216 NYS 656.
67 Williams v. Pennsylvania R. 7<>Hartman v. Hartman, 314 Mo
Co., 235 IllApp 49; O'Donnell v. 305, 284 SW 488. See Wiedner v.
Kraut, 242 Wis 26S, 7 NW2d 889. Katt (TexCivApp), 279 SW 909.
§139
INSTRUCTIONS — RULES GOVERNING
404
defining "accidental means" will not cure the error in another
instruction which fails to distinguish between "accidental death"
and "death by accidental means."7 *
§ 139. Cure of erroneous instruction by correct instruction in
criminal cases.
In criminal prosecutions, a prejudicial instruction cannot be
cured by a correct instruction, unless the judge withdraws the
prejudicial instruction from the jury's consideration.
The reason for the rule in criminal cases is the same as
the reason for the rule in civil cases : the jury should not be re-
quired to make a choice between conflicting instructions.72 If the
71 Dark v. Prudential Ins. Co., 4
CalApp 338, 40 P2d 906.
72 Federal. Kuhn v. United States,
42 F2d 210 (where an instruction
required the defendant to prove his
defense beyond a reasonable doubt);
Nicola v. United States, 72 F2d 780.
Alabama. Vacalis v. State, 204
Ala 345, 86 S 92; Smith v. State, 15
AlaApp 662, 74 S 755.
Arkansas. Pearrow v. State, 146
Ark 182, 225 SW 311 (possession of
recently stolen property).
California. People v. Westlake,
124 Cal 452, 57 P 465; People v.
Maughs, 149 Cal 253, 86 P 187;
People v. Ranney, 213 Cal 70, 1 P2d
423; People v. McDonnell, 32 Cal
App 694, 163 P 1046; People v. El-
gar, 36 CalApp 114, 171 P 697
(rape); People v, Neetens, 42 Cal
App 596, 184 P 27; People v. Hard-
wick (CalApp), 260 P 946.
Colorado. Oldham v. People, 61
Colo 413, 158 P 148 (insanity).
Georgia. Wilson v. State, 176 Ga
198, 167 SE 111; White v. State, 24
GaApp 122, 100 SE 9; Phillips v.
State, 27 GaApp 1, 107 SE 343; Wat-
son v. State, 50 GaApp 114, 176 SE
899.
Illinois. People v. Dettmering, 278
111 580, 116 NE 205 (embezzlement);
People v. Harvey, 286 111 593, 122
NE 138 (assumption of controverted
facts); People v. Lowhone, 292 111
32, 126 NE 620; People v. True, 314
111 89, 145 NE 198; People v. Hey-
wood, 321 111 380, 152 NE 215.
Indiana. Dorak v. State, 183 Ind
622, 109 NE 771; Moore v. State,
197 Ind 640, 151 NE 689; Lindley
v. State, 199 Ind 18, 154 NE 867.
Iowa. State v. Sipes, 202 la 173,
209 NW 458.
Kentucky. Orlando v. Common-
wealth, 218 Ky 836, 292 SW 497.
Louisiana. State v. Ardoin, 49 La
Ann 1145, 22 S 620, 62 AmSt 678.
Maine. State v. Budge, 126 Me
223, 137 A 244, 53 ALR 241.
Michigan. People v. De Witt, 233
Mich 222, 206 NW 562.
Mississippi. Barnes v. State, 118
Miss 621, 79 S 815.
Missouri. State v. Cable, 117 Mo
380, 22 SW 953; State v. Clough, 327
Mo 700, 38 SW2d 36 (erroneous in-
struction as to self-defense) ; State
v. Thompson, 333 Mo 1069, 64 SW2d
277.
Nebraska. Thompson v. State, 61
Neb 210, 85 NW 62, 87 AmSt 453;
Howell v. State, 61 Neb 391, 85 NW
289.
New Jersey. State v. Lionetti, 93
NJL 24, 107 A 47; State v. Tachin,
93 NJL 485, 108 A 318; State v.
Parks, 96 NJL 360, 115 A 305.
North Carolina. State v. Cornett,
199 NC 634, 155 SE 451; State v.
Mickey, 207 NC 608, 178 SE 220.
North Dakota. State v. Hoerner,
55 ND 761, 215 NW 277.
Ohio. Sharkey v. State, 4 OhCir
Ct 101, 2 OhCirDec 443; Cromley
v. State, 19 OhCirCt (N. S.) 526, 26
OhCirDec 209, 59 OhBull 363.
The reviewing court will not pre-
sume that the jury followed the cor-
405 CONSTRUCTION AND EFFECT § 139
instruction is prejudicial, it can be cured only by withdrawal from
the jury's consideration.73
Presumptions and burden of proof. Correct instructions re-
quiring the state to prove defendant's guilt beyond a reasonable
doubt will not cure the error of another instruction that the state
must prove the charge against the accused by a preponderance
of the evidence.74 So, likewise an instruction requiring defend-
ant to prove the material elements of his defense beyond a rea-
sonable doubt was held not cured by a general instruction that
he was presumed to be innocent until his guilt was established
beyond a reasonable doubt.75
Additional or supplementary instructions do not cure the
error in a charge that good character is a circumstance to rebut
a presumption of guilt from circumstantial evidence.76
So, an instruction that flight of accused raised a presumption
of guilt was held not cured by an instruction that the accused was
presumed innocent till proved guilty.77
Other evidentiary matters. Other instructions cannot supple-
ment and cure a charge of the court which gives to the jury a
clear impression that the judge believes or disbelieves certain
witnesses.78 If the court make comments derogatory to the de-
fense interposed, the error is not cured by admonishing the jury
to arrive at a decision uninfluenced by his opinion.79 Where only
the evidence and arguments unfavorable to the defendant were
submitted by the court, the error therein was not cured by the
court's statement that the jury could disregard the court's
views.80
rect instruction and failed to follow See also § 141, infra.
the incorrect instruction. State v. 74 Cox v. State, 207 Ind 553, 194
Hauser, 101 OhSt 404, 131 NE 66. NE 149.
Pennsylvania. Commonwealth v. 7S Alabama. Meadows v. State,
Ross, 266 Pa 580, 110' A 327; Com- 26 AlaApp 311, 159 S 268.
monwealth v. Berkenbush, 267 Pa Oklahoma. Brown v. State, 14
455, 110 A 263. OklCr 115, 167 P 762.
Virginia. Painter v. Common- Utah. See also State v. Green, 86
wealth, 140 Va 459, 124 SE 431. Utah 192, 40 P2d 961.
Washington. State v. Eader, 118 76 State v. Dunn, 202 la 1188,
Wash 198, 203 P 68. 211 NW 850.
West Virginia. State v. Ringer, 77 Jenkins v. Commonwealth, 132
84 WVa 546, 100 SE 413; State v. Va 692, 111 SE 101, 25 ALR 882.
Parsons, 90 WVa 307, 110 SE 698; 7S State v. Gallogly, 47 HI 483,
State v. Garner, 97 WVa 222, 124 134 A 20.
SE 681. 79 People v. Stiglin, 238 AppDiv
Wyoming. State v. Eldredge, 45 407, 264 NTS 832; Commonwealth
Wyo 488, 21 P2d 545. v. Miller, 313 Pa 567, 170 A 128.
73McCutcheon v. State, 199 Ind 80 Q'Shaughnessy v. United
247, 155 NE 544; Todd v. State, 229 States, 17 P2d 225.
Ind 664, 101 NE2d 45.
§ 140 INSTRUCTIONS — EULES GOVERNING 406
Def ernes. Other instructions may properly supplement and
complete a charge to the jury to examine the defense of insanity
with care.8J
If the court gave a correct instruction as to self-defense, it
is not a cure of another in which the jury are misled as to such
defense.82 An instruction, for example, on self-defense which tells
the jury that unless the necessity for taking the life of the de-
ceased was actual, present and urgent, the defense of self-
defense could not be set up, is erroneous because of the omission
of the qualification that an assailed person may act on appear-
ances; and this error is not cured by disconnected instructions
from which the correct rule may be gathered.83
Where the defense was that the theft charged against the
defendant was never committed, and the court charged that the
fact that the accused returned stolen property to the owner
did not constitute a defense, the error therein was not cured
by another instruction.84
Miscellaneous. Instructions in a murder case properly defin-
ing malice will not nullify the error of a separate instruction to
the effect that malice consists not only of anger, hatred, and re-
venge, but every other unlawful and unjustifiable motive.86
A charge to convict both of the defendants if either was guilty
was not cured by another charge under which they could convict
either defendant.86
It was reversible error for the court to refer, in a prosecution
for rape, to the penalty and to the jurisdiction of the parole
board.87
§ 140. Cure of ambiguous instruction by another instruction.
An instruction which is ambiguous or defective but not in-
correct may be cured by another instruction covering the same
matter which makes the ambiguous element clear.
It is another statement of the principle to say an instruction
which standing alone is ambiguous is not erroneous if all the in-
structions considered together fairly submit the case to the
81 People v. Sloper, 198 Cal 238, Oregon. State v. Miller, 43 Or
244 P 362. 325, 74 P 658.
82 People v. Bradley, 324 111 294, Wyoming. See also Clay v. State,
155 NE 301. 15 Wyo 42, 86 P 17, 544.
83 Federal. De Groot v. United 84 State v. Cox, 55 Idaho 694, 46
States, 78 F2d 244. P2d 1093.
Kentucky. Barney v. Common- 8S State v. Hunter, 55 Idaho 161,
wealth, 258 Ky 432, 80 SW2d 513 39 P2d 301.
(where the instruction was held 86 Easier v. State, 25 OhApp 273,
cured by others relating- to self- 157 NE 813.
defense). 87 State v. Tennant, 204 la 130,
214 NW 70'8.
407
CONSTRUCTION AND EFFECT
140
jury-88 The incompleteness of one instruction may ordinarily be
88 Federal. United Commercial
Travelers v. Greer, 43 F2d 499;
0 'Boyle v. Northwestern Fire & Ma-
rine Ins. Co., 49' F2d 713; Shannon
v. Shaffer Oil & Ref. Co., 51 F2d
878, 78 ALR 851; Kloss v. United
States, 77 F2d 462.
Alabama. Louisville & N. R. Co.
v. Young, 168 Ala 551, 53 S 213;
Gilbert v. Southern Bell Tel & T.
Co., 200 Ala 3, 75 S 315.
California. Wood v. Los Angeles
R. Corp., 172 Cal 15, 155 P 68;
People v. Gee Gong, 15 CalApp 28,
114 P 78. 81; Weihe v. Rathjen Mer-
cantile Co., 34 CalApp 302, 167 P
287; People v. McClure, 117 CalApp
381, 4 P2d 211; Sim v. Weeks, 7
CalApp2d 28, 45 P2d 350; People
v. Groves, 9 CalApp2d 317, 49 P
2d 888.
Colorado. Expansion Gold Min.
& Leasing Co. v. Campbell, 62 Colo
410, 163 P 968; Denver City Tram-
way Co. v. Carson, 21 CoIoApp 604,
123 P 680.
District of Columbia. A proper
instruction may cure an improper
one, where the correct one explains
away the defect in the improper
one; but when they conflict, a cor-
rect statement of the law in one
does not cure the error in the other.
Baltimore & 0. R. Co. v. Morgan,
35 AppDC 195.
Georgia. Sutton v. Ford, 144 Ga
587, 87 SE 799, LRA 1918D, 561
AnnCas 1918A, 106; Cosby v. Reid,
21 GaApp 604, 94 SE 824.
Idaho, State v. Emory, 55 Idaho
649, 46 P2d 67.
Illinois. Shekerjian v. Shekerjian,
346 111 101, 178 NE 365; Springfield
v. Williams, 72 IllApp 439; Gardner
v. Ben Steele Weigher Mfg. Co., 142
IllApp 348; Hoffman v. Chicago
Wood & Coal Co., 162 IllApp 332.
Indiana. Boss v. Deak, 201 Ind
446, 169 NE 673, 68 ALR 788; Polk
Sanitary Milk Co. v. Qualiza, 92 Ind
App 72, 172 NE 576.
Iowa. Citizens Nat. Bank v. Con-
verse, 105 la 669, 75 NW 506.
Kansas. Storm v. Leavenworth
Light, Heat & Power Co., 102 Kan
40, 169- P 556; Doyle v. Herington,
142 Kan 169, 45- P2d 890.
Kentucky. West Kentucky Transp.
Co. v. Dezern, 259 Ky 470, 82 SW2d
486.
Maryland. United R. & Elec. Co.
v. Mantik, 127 Md 197, 96 A 261;
Guth v. Elliott, 158 Md 243, 148 A
216.
Massachusetts. Grenda v. Kitchen,
270 Mass 559, 170 NE 619.
Michigan. Whoram v. Argentine
Tp., 112 Mich 20, 70 NW 341; Haara
v. Vreeland, 254 Mich 462, 236 NW
836; Daigle v. Berkowitz, 273 Mich
140, 262 NW 652.
Missouri. Anderson v. Union
Terminal R. Co., 161 Mo 411, 61 SW
874; Clark v. Long (Mo App), 196
SW 409; Sutter v. Metropolitan St.
R. Co. (MoApp), 208 SW 851.
Nebraska. Bailey v. Kling, 88 Neb
699, 130 NW 439.
New Jersey. Newbury v. Ameri-
can Stores Co., 115 NJL 604, 180 A
875; Worthington v. Clark, 9 NJ
Misc 1020, 156 A 314.
New Mexico. Crespin v. Albu-
querque Gas & Elec. Co., 39 NM
473, 50 P2d 259.
New York. McMahon v. New York
News Publishing Co., 51 AppDiv
488, 64 NYS 713.
Ohio. Silberman v. National City
Bank, 36 OhApp 442, 173 NE 16.
Oklahoma. Lonsdale v. Schlegel,
68 Okl 31, 171 P 330.
Tennessee. Knoxville, C., G. & L.
R. Co. v. Wyrick, 99 Tenn 500, 42
SW 434.
Texas. Wells v. Houston, 23 Tex
CivApp 629, 57 SW 584; Gulf, C. &
S. F. Ry. Co. v. Rodriquez (TexCiv
App), 185 SW 311.
Vermont. Ide v. Boston & M. R.
R., 83 Vt 66, 74 A 401.
Virginia. Sun Life Assur. Co. v.
Bailey, 101 Va 443, 44 SE 692.
Washington* Pronger v. Old Nat,
Bank, 20 Wash 618, 56 P 391.
Wisconsin. Schabow v. Wisconsin
§141
INSTRUCTIONS — KULES GOVERNING
408
supplied in other instructions.89 Thus, any error in a statement,
of the court to the jury in an action against the owners of
smelters, that society would eventually pay any loss the de-
fendant suffered, was held cured by the later statement of the
court that the jury were not to be influenced by what he
had said,90
§ 141. Cure by withdrawal of erroneous instruction.
The error in giving an erroneous instruction may be cured by
its withdrawal by the court and instruction to disregard it.
An instruction erroneous as stating a rule inapplicable to the
case may be cured by another charge that the rule has no appli-
cation to the case.91 Probably it is better practice that after the
withdrawal, a correct instruction should be given unless already
in the charge.92
Trac., Light, Heat & Power Co., 162
Wis 175, 155 NW 951; Cole v.
Christensen, 163 Wis 409, 158 NW
56; Zutter v. O'Connell, 200 Wis 601,
229 NW 74.
89 Arkansas, Citizens Bank v.
Fairweather, 127 Ark 63, 191 SW
911.
Idaho. Judd v. Oregon Short Line
R. Co., 55 Idaho 461, 44 P2d 291.
Illinois. People v. Lenhardt, 340
111 538, 173 NE 155; Hinton v. Muhl-
man, 201 IllApp 177.
Indiana. Landreth v. State, 201
Ind 691, 171 NE 192, 72 ALR 891;
Kleihege v. State, 206 Ind 206, 188
NE 786; Maywood Stock Farm Im-
porting Co. v. Pratt, 60 IndApp 131,
110 NE 243.
Iowa. Baker v. Zimmerman, 179
la 272, 161 NW 479.
Kentucky. West Kentucky Coal
Co. v. Key, 178 Ky 220, 198 SW 724.
Missouri. Shaw v. Kansas City
(Mo), 196 SW 1091; Boardman v.
Beeker (MoApp), 195 SW 508.
Texas. Littlefield v. Clayton Bros.
(TexCivApp), 194 SW 194.
West Virginia. Bank of Greenville
v. S. T. Lowry & Co., 81 WVa 578,
94 SE 985.
00 United Verde Copper Co. v.
Jordan, 14 F2d 299, affg. 9 F2d 144.
dl Federal. Chicago, B. & Q. R.
Co. v. Kelley, 74 F2d 80'. See Mit-
ten Bank Securities Corp. v. Huber,
74 F2d 297, 299.
Alabama. Choctaw Coal & Min.
Co. v. Dodd, 201 Ala 622, 79 S 54;
Harris v. Wright, 225 Ala 627, 144
S 834; Kelly v. Hanwick, 228 Ala
336, 153 S 269; Johnson v. State, 15
AlaApp 380, 73 S 748; Moore v.
State, 17 AlaApp 625, 88 S 25;
Forsythe v. State, 19 AlaApp 669,
100 S 198.
By withdrawal the court corrected
the error of charge in a criminal
case that crime is rampant in the
county, state, and nation. Hall v.
State, 18 AlaApp 407, 92 S 527.
Arkansas. Middleton v. State, 162
Ark 530, 258 SW 995; Decker v.
State, 185 Ark 1085, 51 SW2d 521.
California. Tonner v. Spears-
Wells Mach. Co., 126 CalApp 763,
14 P2d 1051.
Connecticut. Craney v. Donovan,
95 Conn 482, 111 A 796.
Georgia. Southern Ry. Co. v. Hoi-
brook, 124 Ga 679, 53 SE 203;
Smith v. State, 146 Ga 36, 90 SE
475; Ivey v. Louisville & N. R. Co.,
18 GaApp 434, 89 SE 629; Granison
v. State, 49 GaApp 216, 174 SE 636.
Illinois. Roberts v. Patterson, 77
IllApp 394; Mengelkamp v. Consoli-
dated Coal Co., 173 IllApp 370'.
Indiana. Gallivan v. Strickler,
187 Ind 201, 118 NE 679; Lauer v.
Roberts, 99 IndApp 216, 192 NE
101.
Iowa. Stodgel v. Elder, 172 la
739, 154 NW 877.
409
CONSTRUCTION AND EFFECT
141
As a general rule the withdrawal should be made before the
jury retires,93 but there is strong authority that instructions
may be corrected or withdrawn either before or by recalling the
jury after their retirement,94 The trial judge, after granting
preargument request to charge, may withdraw it from the jury
if he determines that it erroneously states the law.95
The withdrawal of an incorrect charge on contributory neg-
ligence and the giving of a proper one have been held to cure the
original error.96 Where the trial court improperly charged as to
the speed limitation applicable, in the first part of his charge, his
later withdrawal thereof and correction of the error, and his
instruction with reference to the proper speed limit and the law
applicable at the place where the accident occurred, cured the
error.97
Kansas. The rule is the same in
criminal cases where the withdrawal
is made in such a manner as to be
understood by the jury. State v.
Wells, 54 Kan 161, 37 P 1005.
Kentucky. Belcher v. Common-
wealth, 203 Ky 757, 263 SW 8; Scott
v. Commonwealth, 29- KyL 571, 93
SW 668.
Louisiana. State v. Jones, 36 La
Ann 204.
Maine. State v. Derry, 118 Me
431, 108 A 568.
Massachusetts. Rudberg v. Bow-
den Felting Co., 188 Mass 365, 74
NE 590.
Michigan. Wenzel v. Johnston,
112 Mich 243, 70 NW 549; Atherton
v. Bancroft, 114 Mich 241, 72 NW
208; In re Reynolds' Estate, 273
Mich 71, 262 NW 649.
Missouri. Wells v. Wilson (Mo),
293 SW 127; Carroll v. Wiggains
(MoApp), 199 SW 280.
Nebraska. Reed T. State, 66 Neb
184, 92 NW 321.
New Jersey. Collins v. Central R.
Co., 90 NJL 593, 101 A 287.
North Carolina. State v. May, 15
NC 328; Champion v. Daniel, 170
NC 331, 87 SE 214; State v. Bald-
win, 178 NC 693, 100 SE 345.
Ohio. Rogers v. Garford, 26 Oh
App 244, 159 NE 334; Pecsok v.
Millikin, 36 OhApp 543, 173 NE 626;
Warn v. Whipple, 45 OhApp 285,
187 NE 88, 39 OLR 49.
Oregon. Picket v. Gray, McLean
& Percy, 147 Or 330, 31 P2d 652.
Pennsylvania. Stroud v. Smith,
194 Pa 502, 45 A 329; Wally v.
Clark, 263 Pa 322, 106 A 542; Mc-
Knight v. S. S. Kresge Co., 285 Pa
489, 132 A 575.
Tennessee. Green v. State, 97 Tenn
50, 36 SW 700.
Texas. Nussbaum & Scharff v.
Trinity & B. V. Ry. Co., 108 Tex
407, 194 SW 1099.
Vermont. Dyer v. Lalor, 94 Vt
103, 109 A 30.
Wisconsin. State ex rel. Jahn v.
Rydell, 250 Wis 377, 27 NW2d 486.
92 Brothers v. Brothers, 208 Ala
258, 94 S 175.
93 Missouri. State v. Taylor, 293
Mo 210, 238 SW 489; Lumsden v.
Arbaugh, 207 MoApp 561, 227 SW
868.
New Jersey. Mesgleski v. Public
Service Coordinated Transport, 160
NJMisc 321, 160 A 321.
Pennsylvania. Seiber v. Pettitt,
200 Pa 58, 49 A 763.
94 State v. Derry, 118 Me 431, 108
A 568. See also Keaton v. State,
27 GaApp 164, 107 SE 599.
9 s Warn v. Whipple, 45 OhApp
285, 187 NE 88, 39 OLR 49.
96 Jones v. Atlantic Coast Line R.
Co., 194 NC 227, 139 SE 242.
97 Greenawalt v. Yuhas, 83 Oh
App 426, 38 OhO 469, 84 NE2d 221.
CHAPTER 7
REQUESTS
Section.
156. Modification of requested in-
structions.
157. Refusal for errors in request.
158. Refused instructions in civil
cases substantially covered
by other instructions given.
159. Refused instructions in crim-
inal cases substantially
covered by other instruc-
tions given.
160. Refusal of inconsistent re-
quests.
161. Requests for special verdict or
findings on interrogatories
by jury.
Duty to make timely request and tender proper instruc-
tions in civil cases.
In civil cases it is the duty of the parties to request instruc-
tions (1) on questions of law, if desired, (2) but in any event
requests should be made in apt time, as determined by statute or
by rule of court (3) and should be limited in the matter of num-
ber (4) and length.
(1) Where instructions are desired, in civil actions, the
parties should make a request therefor.1 A party to a civil
Section.
150. Duty to make timely request
and tender proper instruc-
tions in civil cases.
151. Duty to make timely request
and tender proper instruc-
tions in criminal cases.
152. Requests for further or more
specific instructions in civil
cases.
153. Requests for further or more
specific instructions in crim-
inal cases.
154. Formal requisites of requests.
155. Necessity of clear expression
in requested instruction.
§150.
* Federal. Illinois Cent. R. Co. v,
Skaggs, 240 US 66, 60 LEd 528, 36
SupCt 249; Stephenson v. Atlantic
Terra Cotta Co., 144 CCA 312, 230
F 14.
Arkansas. Choctaw, O. & G. R.
Co. v. Baskins, 78 Ark 355, 93 SW
757.
California. Cunningham v. Cox,
126 CalApp 685, 15 P2d 169.
Georgia. Wooten v. Weston, 157
Ga 421, 121 SE 806; Belle Isle v.
Kindig, 25 GaApp 293, 103 SE 269.
Illinois. McKeown v, Dyniewiez,
83 IIlApp 509.
Indiana. Kluge v. Ries, 66 Ind
App 610, 117 NE 262.
Iowa. Rosenbaum Bros. v. Levitt,
10© la 292, 80 NW 393.
Kansas, Warders v. Union Pacific
R. Co., 105 Kan 4, 181 P 604.
Kentucky. Louisville & N. R. Co.
v. Stephens, 188 Ky 17, 220 SW 746;
Otis Hidden Co. v. Newhouse, 204
Ky 324, 264 SW 731; Codell Constr.
Co. v. Steele, 247 Ky 173, 56 SW2d
955; J. V. Pilcher Mfg. Co. v.
Teupe's Exrx., 28 KyL 1350, 91 SW
1125.
Massachusetts. Butler v. Butler,
225 Mass 22, 113 NE 577; Sawyer
v. Worcester Consol. Street Ry., 231
Mass 215, 120 NE 404.
Michigan. Record Publishing Co.
v. Merwin, 115 Mich 10, 72 NW 998;
Geglio v. Huizenga, 261 Mich 512,
246 NW 210.
Missouri. Eagle Constr. Co. v.
Wabash R. Co., 71 Mo App 626;
Sneed v. St. Louis Public Service Co.
(MoApp), 53- SW2d 1062.
410
411
BEQUESTS
§150
action will not generally be heard to complain of the failure of
the court to instruct on particular matters and issues in the
absence of a request for such instruction.2 As a general rule
Montana. Kansier v. Billings, 56
Mont 250, 184 P 630.
Nebraska. Van Dorn v. Kimball,
100 Neb 590, 160 NW 953.
New Hampshire. Oulette v. J. H.
Mendell Engineering & Constr. Co.,
79 NH 112, 105 A 414.
New Jersey. State v. Taylor, 92
NJL 135, 104 A 709.
North Carolina. Bloxham v. Stave
& Timber Corp., 172 NC 37, 89 SE
1013; Webb v. Rosemond, 172 NC
848, 90 SE 306; America Potato Co.
v. Jeanette Bros. Co., 174 NC 236,
93 SE 795.
North Dakota. Ruddick v. Bu-
chanan, 37 ND 132, 163 NW 720;
Andrieux v. Kaeding, 47 ND 17,
181 NW 59.
Ohio. Delivery Co. v. Callachan, 9
OhApp 65, 31 OCA 345; Galliher v.
Campbell, 69 OLA 378, 125 NE2d
758 (Court of Appeals of Ohio,
Clark County).
In absence of specific request, the
trial court need not charge all the
statutory law involved in an action
at law. Varner v. Eppley, 125 OhSt
526, 182 NE 496.
Oklahoma. Muskogee Elec. Trac.
Co. v. Eaton, 49 Okl 344, 152 P 1109.
Pennsylvania. Haughney v. Gan-
non, 274 P 443, 118 A 427.
Rhode Island. Warner Sugar Ref .
Co. v. Metropolitan Wholesale Groc.
Co., 46 RI 158, 125- A 276.
South Carolina. Providence Mach.
Co. v. Browning, 72 SC 424, 52 SE
117; Friedman v. Fludas, 122 SC 153,
115 SE 200.
South Dakota. Chrestenson v.
Harms, 38 SD 360, 161 NW 343;
Kirk v. Thompson, 40 SD 392, 167
NW 399.
Texas. Willis v. First Nat. Bank
(TexCivApp), 262 SW 851.
2 Federal. Order of United Com-
mercial Travelers v. Nicholson, 9
F2d 7.
Alabama. Where a party con-
siders that admissible evidence may
be confusing, he should request a
proper charge explaining it. First
Nat. Bank v. Alexander, 161 Ala
580, 50 S 45.
Arkansas. Jones v. Seymour, 95
Ark 593, 130 SW 560.
California. Sherman v. Kirkpat-
rick, 83 CalApp 307, 256 P 570.
Connecticut. Hedberg v. Cooley,
115 Conn 352, 161 A 665; Bullard
v. De Cordova, 119 Conn 262, 175
A 673.
Georgia. Mobley v. Merchants &
Planters Bank, 157 Ga 658, 122 SE
233; Tietjen v. Dobson, 170 Ga 123,
152 SE 222, 69 ALR 1408; Guyton
v. State, 32 GaApp 429, 123 SE 623;
Williams v. Thompson, 32 GaApp
751, 124 SE 810; Central of Georgia
Ry. Co. v. Cooper, 45 GaApp 806,
165 SE 858.
Illinois. Wilkinson v. Service, 249
111 146, 94 NE 50, AnnCas 1912A, 41.
Indiana. Taggart v. Keebler, 198
Ind 633, 154 NE 485; Chicago, S. B.
& N. I. Ry. Co. v. Brown, 81 IndApp
411, 143 NE 609; Jasonville v.
Griggs, 82 IndApp 104, 144 NE 560.
Iowa. Greenlee v. Ealy, 145 la
394, 124 NW 166.
Kentucky. Frankfort Modes Glass
Works v. Arbogast, 148 Ky 4, 145
SW 1122; Brucken v. Myers, 153 Ky
274, 155 SW 383; Ray v. Shemwell,
186 Ky 442, 217 SW 351; Berea
Bank & Trust Co. v. Mokwa, 19-4
Ky 5«56, 239 SW 1044; New York
Underwriters Ins. Co. v. Mullins,
244 Ky 788, 52 SW2d 697; National
Life & Ace. Ins. Co. v. Bradley, 245
Ky 311, 53 SW2d 701; Berkshire
Life Ins. Co. v. Goldstein, 259 Ky
451, 82 SW2d 501.
It is not error to fail to instruct,
in absence of request, that a city
ordinance required the driver of an
automobile to stop at boulevard.
Cline v. Cook, 2ie Ky 366, 287 SW
927.
Massachusetts. Dodge v. Sawyer,
288 Mass 402, 193 NE 15.
§150
INSTRUCTIONS — RULES GOVERNING
412
Instructions of a general character should be given though not
requested,3 but in several states it is the rule that where no
Michigan. Record Publishing Co.
v. Merwin, 115 Mich 10', 72 NW 998.
Montana, Mellon v. Kelly, 99' Mont
10, 41 P2d 49.
Nebraska. In re Strelow's Estate,
120 Neb 235, 231 NW 837, 233 NW
889; Spittler v. Callan, 127 Neb 331,
255 NW 27; Derr v. Gunnell, 127
Neb 708, 256 NW 725.
New Jersey. Rowland v. Wunder-
lick, 113 NIL 223, 174 A 168; Lanio
v. Steneck, 9 NJMisc 866, 156 A 9.
New Mexico. King v. Tabor, 15
NM 488, 110 P 601.
North Carolina. Sears v. Atlantic
Coast Line R. Co., 178 NC 285, 100
SE 433.
North Dakota. Blackstead v.
Kent, 63 ND 246, 247 NW 607.
Ohio. Norris v. Jones, 110 OhSt
598, 22 OLR 173, 144 NE 274; Gradi-
son Constr. Co. v. Braun, 41 OhApp
389, 36 OLR 149, 180 NE 274.
Oklahoma. Drum Standish Comm.
Co. v. First Nat. Bank & Trust Co.,
168 Okl 400, 31 P2d 843.
Texas. Lattimore v. Tarrant
County, 57 TexCivApp 610, 124 SW
205; Newton v. Shivers (TexCiv
App), 136 SW 805.
Wisconsin. Austin v. Moe, 68 Wis
458, 32 NW 760'; National Bank v.
Illinois & Wisconsin Lbr. Co., 101
Wis 247, 77 NW 185; Morrison v.
Superior Water, Light & Power Co.,
134 Wis 167, 114 NW 434; Madison
Trust Co. v. Helleckson, 216 Wis
443, 257 NW 691, 96 ALR 992.
3 Arizona. Southwest Cotton Co.
v. Ryan, 22 Ariz 520, 199 P 124.
Connecticut. Gross v. Boston, W.
& N. Y. Street Ry. Co., 117 Conn
589, 169 A 613.
Where it is likely that the jury
may not understand the rule on a
material point, the court must as
a general rule instruct on that point
without request for a charge.
Wolfe v. Ives, 83 Conn 174, 76 A
526, 19 AnnCas 752.
Georgia. Wright v. Harber, 175
Ga 696, 165 SE 616; Central of
Georgia Ry. Co. v. Reid, 23 GaApp
694, 99 SE 235; McDonald v. South-
ern Ry. Co., 24 GaApp 608, 101 SE
714; Bank of LaFayette v. Phipps,
24 GaApp 613, 101 SE 696; South-
ern Cotton Oil Co. v. Brownlee, 26
GaApp 782, 107 SE 355; Florence v.
Byrd, 28 GaApp 695, 113 SE 227;
Southern R. Co. v. Ray, 28 GaApp
792, 113 SE 5901; Van Valkenburg
v. Wood, 41 GaApp 564, 153 SE 924;
Awbrey v. Johnson, 45 GaApp 663,
165 SE 846.
It is not good practice to omit en-
tirely to charge on the measure of
damages or mitigation of damages
even in the absence of requests.
Central of Georgia Ry. Co. v. Mad-
den, 135 Ga 205, 69 SE 165, 31 LRA
(N. S.) 813, 21 AnnCas 1077.
Indiana. Cleveland v. Emerson, 51
IndApp 339, 99 NE 796.
Iowa. Busch v. Tjentland, 182 la
360, 165 NW 999; McSpadden v. Ax~
mear, 191 la 547, 181 NW 4; Des
Moines Asphalt Paving Co. v. Lin-
coln Place Co., 201 la 502, 207 NW
563; Kaufman v. Borg, 214 la 293,
242 NW 104; Jensen v. Magnolia,
219 la 209, 257 NW 584; Keller v.
Gartin, 220 la 78, 261 NW 776.
Kentucky. Gibson v. Common-
wealth, 204 Ky 748, 265 SW 339.
Massachusetts. Hughes v. Whit-
ing, 276 Mass 76, 176 NE 812.
Michigan. Pierson v. Smith, 211
Mich 292, 178 NW 659; Daigle v.
Berkowitz, 273 Mich 140, 262 NW
652.
Mississippi. The cause must be
submitted to the jury though the
plaintiff requests no instructions. J.
C. Penney Co. v. Evans, 172 Miss
900, 160 S 779.
Nebraska. Hall v. Rice, 117 Neb
813, 223 NW 4, 78 ALR 1421; Blue
Valley State Bank v. Milburn, 120
Neb 421, 232 NW 777; Wagner v.
Watson Bros. Transfer Co., 128 Neb
535, 259 NW 373.
New Hampshire. Burke v. Boston
& M. R., 82 NH 350, 134 A 574.
413
BEQUESTS
§150
instruction has been prepared and offered by either party, the
court is not bound to instruct the jury at all.4
Where a party fails to make a proper request, he cannot
complain of the failure of the judge to instruct the jury on
the following matters: burden of proof,5 preponderance of evi-
dence,6 inferences from facts in evidence,7 expert testimony,8
North Carolina. Butler v. Holt-
Williamson Mfg. Co., 182 NC 547,
109 SE 559; Darden v. Baker, 193
NC 386, 137 SE 146.
Oklahoma. First Nat. Bank v.
Cox, 83 Okl 1, 200 P 238; Treeman
v. Frey, 140 Okl 201, 282 P 452;
Martin v. McCune, 170 Okl 196, 39
P2d 978; Craig v. Wright, 169 Okl
245, 43 P2d 1017.
Pennsylvania. Kerns v. Ripka, 85
PaSuper 97.
The court should instruct on the
measure of damages in an action
for personal injuries without request
for specific instructions. McLane v.
Pittsburgh E-ys. Co., 230 Pa 29, 79
A 237.
Vermont. In re Bean's Will, 85
Vt 452, 82 A 734; Merrihew v.
Goodspeed, 102 Vt 206, 147 A 346,
66 ALR 1109.
Wisconsin. Ordinarily the court
should give suitable instructions
upon proximate cause whether re-
quested to do so or not, but failure
to instruct is not reversible error
where no request is made. Stumm
v. Western Union Tel. Co., 140 Wis
528, 122 NW 1032.
4 Illinois. Buttitta v. Lawrence,
346 111 164, 178 NE 390, revg. 260
IllApp 94; McKeown v. Dyniewicz,
83 IllApp 509.
Kentucky. Major v. Rudolph, 218
Ky 1, 290 SW 688; Hoopes Bros. &
Thomas Co. v. Adams, 221 Ky 527,
299 SW 162; Reed v. Philpot's
Admr., 235 Ky 429, 31 SW2d 709;
Aetna Life Ins. Co. v. Daniel, 251
Ky 760, 65 SW2d 1025.
Mississippi. Gulf & Ship Island
R. Co. v. Simmons, 153 Miss 327,
121 S 144.
Missouri. Steinberg v. Merchants
Bank, 334 Mo 297, 67 SW2d 63;
Biskup v. Hoffman, 220 MoApp 542,
287 SW 865; Scanlan v. Kansas
City, 223 MoApp 1203, 19 SW2d 522.
Nebraska. Berggren v. Hannan,
Odell & Van Brunt, 116 Neb 18, 215
NW 556.
New York. Haas v. King, 216
AppDiv 821, 215 NYS 641.
Virginia. See Seaboard Air Line
Ry. Co. v. J. E. Bowden & Co., 144
Va 154, 131 SE 245.
West Virginia. See Scales v. Ma-
jestic Steam Laundry, 114 WVa 355,
171 SE 899.
5 District of Columbia. Capital
Trac. Co. v. Copland, 47 AppDC
152.
Georgia. Albany Warehouse Co.
v. Hillman, 147 Ga 490, 94 SE 569;
Southern Ry. Co. v. Wright, 6 Ga
App 172, 64 SE 703; Temples v.
Central of Georgia Ry. Co., 19 Ga
App 307, 91 SE 502; Kline Car Corp.
v. Watkins Motor Co., 26 GaApp
338, 106 SE 211; Bowling v. Hath-
cock, 27 GaApp 67, 107 SE 384; Yar-
brough v. Stuckey, 39 GaApp 265,
147 SE 160.
Indiana. Nicholich v. Shasovich,
72 IndApp 294, 125 NE 803.
Missouri. Denny v. Brown (Mo),
193 SW 552; Eminence Realty &
Brokerage Co. v. Randolph (Mo
App), 180 SW 25; Robinson v.
Springfield (MoApp), 191 SW 1094.
Tennessee. Shelby County v.
Fisher, 137 Tenn 507, 194 SW 576.
Texas. Texas Baptist University
v. Patton (TexCivApp), 145 SW
1063; Hall v. Ray (TexCivApp),
179 SW 1135; San Antonio & A. P.
Ry. Co. v. Moerbe (TexCivApp), 189
SW 128; Holden v. Evans (TexCiv
App), 231 SW 146; Humble Oil &
Ref. Co. v. Strauss (TexCivApp),
243 SW 528.
6 California. Hardy v. Schirmer,
163 Cal 272, 124 P 993.
§150
INSTRUCTIONS — RULES GOVERNING
414
experimental evidence,9 mortality or life expectancy tables,10
the principle of falsus in uno, f alsus in omnibus, ' J defini-
tions of particular terms used,12 credibility of witnesses
Georgia. Rudulph v. Brown, 161
Ga 319, 130 SE 559; Tullulah Falls
Ry. Co. v. Taylor, 20 GaApp 786,
93 SE 533; Terry Shipbuilding
Corp, v. Gregory, 26 GaApp 450,
106 SE 803.
Wisconsin. McHatton v. McDon-
nell's Estate, 166 Wis 323, 165 NW
468.
7Pfarr v. Standard Oil Co., 176
la 577, 157 NW 132.
8 Weber v. Strobel (Mo), 194 SW
272.
9 St. Paul Fire & Marine Ins. Co.
v. Baltimore & 0. R. Co., 129 OhSt
401, 2 OhO 396, 195 NE 861.
10 Kentucky. Chicago Veneer Co.
v. Jones, 143 Ky 21, 135 SW 430;
Stearns Coal & Lbr. Co. v. Calhoun,
166 Ky 607, 179- SW 590; Stearns
Coal & Lbr. Co. v. Williams, 171
Ky 46, 186 SW 931.
Missouri. Peters v. Kansas City
Rys. Co., 204 MoApp 197, 224 SW
25.
Oregon. Askay v. Maloney, 85 Or
333, 166 P 29.
1 f Mauchle v. Panama — Pacific In-
ternational Exposition Co., 37 Cal
App 715, 174 P 400.
1 2 Arkansas. Morris v. Collins,
127 Ark 68, 191 SW 963 (reason).
California. Mecham v. Crump,
137 CalApp 200, 30 P2d 568.
Georgia. Smith v. Brinson, 145
Ga 406, 89 SE 363; Lowry v. Lowry,
170 Ga 349, 153 SE 11, 70 ALR
488; Freeman v. Petty, 22 GaApp
199, 95 SE 737; Tallapoosa v. Brock,
28 GaApp 384, 111 SE 88 (patent
and latent defects).
Illinois. Lichtenstein v, L. Fish
Furn. Co., 272 111 191, 111 NE 729,
AnnCas 1918A, 1087; Varney v.
Ajax Forge Co., 204 IllApp 208
(proximate cause).
Indiana. Economy Hog & Cattle
Powder Co. v. Compton, 192 Ind 222,
135 NE 1.
In order to preserve the right to
complain of an indefinite term used
in an instruction, a party should
tender an instruction defining such
term. Jenney Elec. Mfg. Co. v.
Flannery, 53 IndApp 397, 98 NE 424.
Iowa. Wickwire v. Webster City
Sav. Bank, 153 la 225, 133 NW 100
(preference) ; Wegner v. Kelley, 182
la 259, 165 NW 4491; State v. Foun-
tain, 183 la 1159, 168 NW 285;
Friedman v. Weeks, 190 la 1083, 181
NW 390; Altfilisch v. Wessel, 208
la 361, 225 NW 862 ("under con-
trol" in accident case involving au-
tomobile collision).
Kentucky. Blue Grass Trac. Co.
v. Ingles, 140 Ky 488, 131 SW 278
(ordinary care) ; Pitman v. Drown,
176 Ky 263, 195 SW 815; Penny-
royal Fair Assn. v. Hite, 195 Ky
732, 243 SW 1046; Ben Humpich
Sand Co. v. Moore, 253 Ky 667, 69
SW2d 996.
Massachusetts. Rocci v. Massa-
chusetts Ace. Co., 226 Mass 545,
116 NE 477.
Minnesota. Kocolos v. Chicago
Great Western Ry. Co., 167 Minn
502, 210 NW 62; Clark v. Banner
Grain Co., 195 Minn 44, 261 NW
596.
Missouri. Schlueter v. East St.
Louis Connecting Ry. Co., 316 Mo
1266, 296 SW 105; Thompson v.
Lamar, 322 Mo 514, 17 SW2d 960;
Smith v. Ohio Millers Mut. Fire
Ins. Co., 330 Mo 236, 49 SW2d 42
(independent contractor); Quinn v.
Atchison, T. & S. F. Ry. Co. (Mo
App), 193 SW 933 (cattle guards);
Tucker v. Carter (Mo App), 211 SW
138; American Paper Products Co.
v. Morton Salt Co. (Mo App), 279
SW 761; Van Horn. v. Union Fuel
& Ice Co. (MoApp), 31 SW2d 262
(failure to define negligence) ;
Greaves v. Kansas City Junior Or-
pheum Co., 229 MoApp 663, 80 SW
2d 228; Gore v. Whitmore Hotel Co.,
229 MoApp 910, 83 SW2d 114 (fail-
ure to define "abated" in action to
abate public nuisance).
415
REQUESTS
§150
generally, * 3 impeachment of witnesses, ' 4 construction or inter-
pretation of contracts,15 the nature and effect of fraud,16 and
the degree of proof necessary to establish the same,17 the
principles of estoppel or waiver,18 limitation of evidence to a
special purpose,19 withdrawal of immaterial evidence,20 the
Nebraska. Pittenger v. Salisbury
& Almquist, 125 Neb 672, 251 NW
287.
Texas. Stamford Oil Mill Co. v.
Barnes, 55 TexCivApp 420, 119 SW
872 (negligence) ; Black v. Wilson
(TexCivApp), 187 SW 493; Millsaps
v. Johnson (TexCivApp), 196 SW
202; Jagoe Constr. Co. v. Harrison
(TexCivApp), 28 SW2d 232 (failure
to define negligence and proximate
cause).
Washington. Singer v. Martin, 96
Wash 231, 164 P 1105 (proximate
cause).
1 3 Campbell v. Dysard Constr.
Co., 40 GaApp 328, 149 SE 713; Win-
ters v. York Motor Exp. Co., 116
PaSuper 421, 176 A 812.
' 4 Georgia. Giles v. Voiles, 144
Ga 853, 88 SE 207; Western & A. R.
Co. v. Holt, 22 GaApp 187, 95 SE
758; Gilstrap v. Leith, 24 GaApp
720, 102 SE 169.
Massachusetts. Leavitt v. Maynes,
228 Mass 350, 117 NE 343.
Oklahoma. Brownell v. Moorehead,
65 Okl 218, 165 P 408.
Texas. Kampmann v. Cross (Tex
CivApp), 194 SW 437; Epting v.
Nees (TexCivApp), 25 SW2d 717;
Latham v. Jordan (TexComApp), 17
SW2d 805, revg. 3 SW2d 555.
Washington. Blystone v. Walla
Walla Valley Ry. Co., 97 Wash 46,
165 P 1049.
1 5 Indiana. Western Brass Mfg.
Co. v. Haynes Automobile Co., 61
IndApp 524, 112 NE 108.
Kansas. State Bank v. Abbott,
104 Kan 344, 179- P 326 (chattel
mortgage).
New Hampshire. Hill v. Carr, 78
NH 458, 101 A 525.
Washington. Sladjoe v. National
Casualty Co., 95 Wash 522, 164 P
203.
1 6 Macksville State Bank v. Ehr-
lich, 119 Kan 796, 241 P 462.
1 7 Societe Titanor v. Sherman
Mach. & Iron Works, 172 Okl 213,
45 P2d 144.
1 8 Payne v. Ryan, 183 Wash 590,
49 P2d 53.
1 9 Arkansas. Lisko v. Uhren, 130
Ark 111, 196 SW 816.
California. Ahern v. Livermore
Union High School (CalApp), 279
P 1032; In re Lenci's Estate, 106 Cal
App 171, 288 P 841; Gajanich v.
Gregory, 116 CalApp 622, 3 P2d 389.
Colorado. McAllister v. McAllis-
ter, 72 Colo 28, 209 P 788.
Idaho. Boomer v. Isley, 49 Idaho
666, 290 P 40-5.
Indiana. Clark v. Clark, 187 Ind
25, 118 NE 123; Citizens Tel. Co. v.
Prickett, 189 Ind 141, 125 NE 193;
Irvine v. Baxter Stove Co., 70 Ind
App 105, 123 NE 185; Chesapeake &
0. R. Co. v. Perry, 71 IndApp 506,
125 NE 414.
Iowa. McKenney v. Davis, 189 la
358, 178 NW 330.
Kentucky. Louisville & N. R. Co.
v. Stephens, 188 Ky 17, 220 SW
746; Sally v. Brown, 220 Ky 576,
295 SW 890.
Maryland. County Comrs. v. Tim-
mons, 150 Md 511, 133 A 322.
Massachusetts. Wagman v. Zis-
kind, 234 MASS 509, 125 NE 633;
Faircloth v. Framingham Waste Ma-
terial Co., 286 Mass 320, 190 NE
609.
Michigan. Metcalf v. Peerless
Laundry & Dye Co., 215 Mich 601,
184 NW 482.
Minnesota. Klein v. Pasch, 153
Minn 291, 190 NW 338.
Missouri. Quinn v. Van Raalte,
276 Mo 71, 205 SW 59; Yant v.
Charles (Mo), 219 SW 572; Holling-
hausen v. Ade, 289 Mo 3'62, 233
SW 39; Dabbs v. Kansas City S. Ry.
Co. (MoApp), 202 SW 276; Hickman
v. Nelson (MoApp), 211 SW 131;
§150
INSTRUCTIONS — RULES GOVERNING
416
weight and significance of particular evidence,21 failure to call
certain witnesses,22 delays in transportation by carrier,23 the
theories of the case contended for by the parties,24 contributory
negligence,25 specific acts of negligence plaintiff required to
Lanham v. Vesper-Buick Automobile
Co. (MoApp), 21 SW2d 890.
New Hampshire. Wemyss v.
Wyoming Valley Paper Co., 86 NH
587, 172 A 438,
New Jersey. Vapor Vacuum Heat-
ing: Co. v. Kaltenbach & Stephens,
94 NJL 450, 111 A 171; Blum v.
Parsons Mfg. Co., 95 NJL 471, 112
A 848; In re Board of Recreation
Comrs., 103 NJL 419, 136 A 176,
North Carolina. Roberson v.
Stokes, 181 NC 59, 106 SB 151.
Oklahoma. Tishomingo E 1 e c .
Light & Power Co. v. Gullett, 52
Okl ISO, 152 P 849.
South Carolina. Harwell v. Co-
lumbia Mills, 112 SC 177, 98 SE
324.
South Dakota. L. A. McKean
Auto Co. v. O'Marro, 54 SD 435, 223
NW 354, revg. 53 SD 55, 220 NW
144.
Texas. Massie v. Hutchison, 110
Tex 558, 222 SW 962; Posener v.
Harvey (TexCivApp), 125 SW 356;
Pyron v. Brownfield (TexCivApp),
238 SW 725; Reese v. Carey (Tex
CivApp), 286 SW 307; Hamilton v.
Houston E. & W. T. Ry. Co. (Tex
CivApp), 22 SW2d 331; Reynolds v.
Porter (TexCivApp), 54 SW2d 1086.
Wisconsin. Newberry v. Minne-
apolis, St. P. & S. S. M. Ry. Co., 214
Wis 547, 252 NW 579.
20 Co-operative Raw Fur Co. v.
American Credit Indem. Co., 153
CCA 103, 240 F 67; Fenley Model
Dairy v. Secuskie, 218 Ky 59, 290
SW 1044.
2* Fierberg v. Whitcomb, 119
Conn 390, 177 A 135.
22 Smith v. Triplett (TexCivApp),
83 SW2d 1104.
23 Lovelace v. Atlantic Coast Line
R. Co., 172 NC 12, 89 SE 797.
24 Federal. Waters v. Guile, 148
CCA 298, 234 F 532; Sutherland v.
Payne, 274 F 360.
Alabama. Postal Telegraph-Cable
Co. v. Minderhout, 14 AlaApp 392,
71 S 89.
Georgia. Callaway v. Wynne, 27
GaApp 723, 109 SE 679.
Indiana. International Harvester
Co. v. Haueisen, 66 IndApp 355, 118
NE 320.
Iowa. Shuck v. Conway (la), 186
NW 858.
Missouri. Maloney v. United Ry.
Co. (Mo), 237 SW 509; Jenkins v.
Clopton, 141 MoApp 74, 121 SW
759.
Nebraska. Prairie Life Ins. Co.
v. Heptonstall, 105 Neb 829, 182
NW 483.
New Hampshire. Janvrin v. Pow-
ers, 79 NH 44, 104 A 252.
North Carolina. McMillan v. At-
lanta & C. Air Line Ry. Co., 172
NC 853, 90 SE 683; Muse v. Ford
Motor Co., 175 NC 466, 95 SE 900.
Texas. Wichita Valley Ry. Co. v.
Somerville (TexCivApp), 179 SW
671.
Washington. Zolawenski v. Aber-
deen, 72 Wash 95, 129 P 1090.
25 Georgia. Southern Ry. Co, v.
Weatherby, 20 GaApp 399, 93 SE 31;
Western & A. R. Co. v. Jarrett, 22
GaApp 313, 96 SE 17.
Kentucky, Major v. Rudolph, 218
Ky 1, 290 SW 688.
Michigan. Korstange v. Kroeze,
261 Mich 298, 246 NW 127.
Missouri. Moran v. Atchison, T.
& S. F. Ry. Co., 330 Mo 278, 48 SW
2d 881; Lafever v. Pryor (MoApp),
218 SW 970; Neagle v. Edina (Mo
App), 53 SW2d 1077 (failure to de-
fine contributory negligence).
Nebraska. Wilson v. Morris & Co.,
108 Neb 255, 187 NW 805. But see
McCulley v. Anderson, 119 Neb 105,
227 NW 321.
New Jersey. Illis v. Oberle, 106
NJL 244, 147 A 461; Tobish v. Cohen,
110 NJL 296, 164 A 415.
Ohio. Cincinnati Trac. Co. v.
Piker, 11 OhApp 54.
417
REQUESTS
§150
prove,26 last clear chance,27 humanitarian doctrine,28 compara-
tive negligence,29 concurrent negligence,30 unavoidable acci-
dent,31 res ipsa loquitur,32 proximate cause,33 the measure and
elements of damages,34 the care required of a master toward his
Where the defendant did not re-
quest submission to the jury of the
issue of plaintiff's contributory neg-
ligence, nonsubmission is not avail-
able to the defendant as ground for
a new trial. Bethel v. Taxicabs of
Cincinnati, 30 ONP (N. S.) 425.
Oklahoma. Ferris v. Shandy, 71
Okl 35, 174 F 1060.
South Carolina. Case v. Atlanta
& C. A. L. Ry. Co., 107 SC 216, 92
SE 472.
26 Brown v. Terminal R. Assn.
(MoApp), 85 SW2d 226.
27 California. Carbaugh v. White
Bus Line, 51 CalApp 1, 195 P 1066.
Connecticut. Mongillo v. New
England Banana Co., 115 Conn 112,
160 A 433.
Kentucky. Corlew's Admr. v.
Young, 216 Ky 237, 287 SW 706.
Missouri. Sisk v. Industrial Track
Constr. Co., 316 Mo 1143, 295 SW
751.
28 Yuronis v. Wells, 322 Mo 1039,
17 SW2d 518.
29 Lady v. Douglass, 105 Neb 489,
181 NW 173.
30 If the plaintiff desires the court
to charge on the question of concur-
rent negligence of the defendant and
a third person, he should request
such a charge or call the court's at-
tention to the omission. Fincher v.
Summit Beach Park Co., 13 OLA
665.
31 Malon v. Adley Exp. Co., 118
Conn 565, 173 A 159; Thomas v.
Haspel, 126 Neb 255, 253 NW 73.
32 Mills v. Los Angeles Junk Co.,
3 CalApp2d 546, 40 P2d 285; Milam
v. Mandeville Mills, 41 GaApp 62,
151 SE 672.
33 Iowa. Lang v. Siddall, 218 la
263, 254 NW 783.
Massachusetts. Coddaire v. Sibley,
270 Mass 41, 169- NE 797.
New Jersey. Cerami v. Zimmer-
man, 8 NJMisc 24, 148 A 154.
34 Federal. Interstate Stage Lines
Co. v. Ayers, 42 F2d 611.
Alabama. Sloss-Shefneld Steel &
Iron Co. v. Bearden, 202 Ala 220,
80 S 42.
California. Oakland v. Wheeler,
34 CalApp 442, 168 P 23; Hollander
v. Wilson Estate Co., 135 CalApp
646, 27 P2d 785.
Georgia. Contra: Jones v. Har-
ris, 169 Ga 665, 151 SE 343; Dan-
ville Lbr. Co. v. MeArthur, 36 Ga
App 546; 137 SE 294.
Indiana. Carter v. Richart, 65
IndApp 255, 114 NE 110.
Kentucky. Nashville, C. & St. L.
Ry. Co. v. Banks, 168 Ky 579, 182
SW 660; Louisville & N. R. Co. v.
Payne's Admr., 177 Ky 462, 197 SW
928, LRA 1918C, 376; R. C. Tway
Min. Co. v. Tyree, 183 Ky 248, 208
SW 817.
Massachusetts. Winslow v. New
England Co-op Soc., 225 Mass 576,
114 NE 748.
Michigan. Hartwig v. Kell, 199
Mich 603, 165 NW 693.
Missouri. Delano v. Roberts (Mo
App), 182 SW 771; McDonald v.
Central Illinois Constr, Co., 196 Mo
App 57, 190 SW 633; Dyrcz v. Ham-
mond Packing Co. (Mo App), 194 SW
761; Alexander v. Star- Chronicle
Publishing Co., 197 MoApp 601, 198
SW 467; Rodgers v. St. Louis-San
Francisco Ry. Co. (MoApp), 31 SW
2d 546.
Nebraska. Elhvanger v. Goss, 103
Neb 132, 170' NW 830.
North Carolina. Gurley v. South-
ern Power Co., 172 NC 690, 90 SE
943; Bradley v. Camp Mfg. Co., 177
NC 153, 98 SE 318.
Pennsylvania. Leonard v. Balti-
more & 0. R. Co., 259 Pa 51, 102 A
279. But see Gail v. Philadelphia,
273 Pa 275, 117 A 69.
In an action for wrongful death
the judge should instruct the jury
§150
INSTRUCTIONS — RULES GOVERNING
418
servants,33 the care required of aged persons,36 the presumption
that one sees and hears what he should have seen and heard,37
the rule that the jury are the exclusive judges of the facts,38
improper inferences drawn or argument made by opposing
counsel,39 or advice of counsel as a defense to an action for
malicious prosecution.40
So it has been held that the duty of the court to construe
pleadings, deeds, and contracts and to state their legal effect
does not extend to the construction of documents introduced in
evidence merely as admissions against interest, in the absence
of any request for such construction.4 ' The court is not bound to
instruct as to statutory law without request therefor.42
(2) It is necessary that requests be made within the time
required by statute or rules of court.43 It is within the province
on the measure of damages though
not requested to do so. Milyak v.
Philadelphia Rural Transit Co., 300'
Pa 457, 150 A 622. See also Tom-
linson v. Northwestern Elec. Co., 301
Pa 72, 151 A 680.
Texas. Andrews v. York (TexCiv
App), 192 SW 338.
Washington. Tigner v. Zosel, 172
Wash 552, 21 P2d 239.
Wisconsin. McHatton v. McDon-
nell's Estate, 166 Wis 323, 165 NW
468.
35 Brown v. Forrester & Nace Box
Co. (Mo), 243 SW 330; Jaeger v.
City Ry. Co., 72 WVa 307, 78. SE 59.
36 Hall v. Shenandoah, 179 la
1192, 162 NW 575.
37 Cleveland, C., C. & St. L. Ry.
Co. v. Lynn, 177 Ind 311, 95 NE 577,
98 NE 67.
38 Kansas City, M. & 0. Ry. Co.
v. Worsham (TexCivApp), 149 SW
755; Valiotis v. Utah- Apex Min. Co.,
55 Utah 151, 184 P 802.
39Elerath Steel & Iron Co. v.
Cornfoot, 121 Or 232, 253 P 529.
40 Lindsey v. Testa, 118 CCA 298,
200 F 124. See Kissel-Skiles Co. v.
Neff, 232 Ky 825, 24 SW2d 588.
41 Kincart v. Shambrook, 64 Or
27, 128 P 1003.
42Barbieri v. Pandiscio, 116
Conn 48, 163 A 469 (statute making
it crime for pedestrian to use high-
way negligently); Southern Ry. Co.
v. Tudor, 46 GaApp 563, 168 SE 98
(statute precluding- recovery against
railroad for injury when victim was
negligent).
43 Federal. Astruc v. Star Co.,
182 F 706; Houston v. Delaware, L.
& W. R. Co., 274 F 599; Kimble v.
Kiser, 59 F2d 626 (sufficient if pre-
sented at any time before the jury
retires).
California. Gore v. Market Street
Ry. Co. (CalApp), 37 P2d 1059, 38
P2d 804.
Georgia. Georgia Southern & F.
Ry. Co. v. Thornton, 144 Ga 481, 87
SE 388; Giles v. Voiles, 144 Ga 853,
88 SE 207; Richmond Hosiery Mills
v. Hayes, 146 Ga 240, 91 SE 54;
Rountree v. Neely, 147 Ga 435, 94
SE 542; Boykin v. Bohler, 163 Ga
807, 137 SE 45; Henley v. Toole, 20
GaApp 146, 92 SE 760; Central of
Georgia Ry. Co. v. Deas, 22 GaApp
425, 96 SE 267; Camp v. Bagwell &
Bagwell, 23 GaApp 690, 99 SE 234;
Manhattan Life Ins. Co. v. Boykin,
43 GaApp 146, 158 SE 449; Pybus v.
Goldstein, 45 GaApp 669', 165 SE
866 (made too late after jury re-
tired).
Illinois, In Kelley v. United Bene-
fit Life Ins. Co., 275 IllApp 112,
rule of court required requests to be
presented before argument com-
menced, but counsel did not offer
the requests until fifteen minutes
after the argument had begun.
419
BEQUESTS
§150
of the trial court's discretion to waive or to insist upon the
question of time, in the absence of prejudice to the opposite
party.44 The request comes too soon when it is made before
any evidence is introduced,45 and is generally too late when
tendered after argument has begun.46 A request for a ruling
Kentucky. Miller v. Barnes, 181
Ky 473, 205 SW 549.
Massachusetts. Lincoln v. Finkel-
stein, 255 Mass 486, 152 NE 332.
Michigan. Musgrove v. Man-
istique & L. S. Ry., 259 Mich 469,
244 NW 132 (too late when made
while jury was retiring; the point
was sufficiently covered by other
instructions) .
Minnesota. Wilkinson v. Turn-
bull, 166 Minn 29, 206 NW 950.
New Hampshire. Though a rule
of court required the requests to
be handed to the court before argu-
ment, the point as to which a special
charge was requested arose after
the argument had commenced, and
it was held that the rule of court re-
ferred to was inapplicable. Nichol-
aides v. Wallace, 86 NH 465, 169 A
874.
New Jersey. Lambert v. Trenton
& Mercer County Trac. Co., 103
NJMisc 23, 135 A 270'.
Ohio. Under Revised Code
§ 2315.01 there is conferred upon
parties in civil actions the right to
have instructions, presented in writ-
ing, given to the jury before argu-
ment, upon request, if same contain
correct statements of the law and
are pertinent to one or more of the
issues in the case. A denial of such
right is prejudicial error, Bartson
v. Craig, 121 OhSt 371, 169 NE 291.
See also Cincinnati Trac. Co. T.
Kroger, 114 OhSt 303, 151 NE 127;
Lima Used Car Exch. Co. v. Hem-
perly, 120 OhSt 400, 166 NE 364;
Washington Fidelity Nat. Ins. Co.
v. Herbert, 125 OhSt 591, 183 NE
537; Rogers v. Ziegler, 21 OhApp
186, 152 NE 781; Mulvihill v. Froh-
miller, 21 OhApp 210, 153 NE 115;
John Bright Shoe Stores Co. v.
Scully, 24 OhApp 15, 156 NE 155;
Patton Motor Trucking Co. v. Knapp,
25 OhApp 89, 157 NE 402; Rogers
v. Garford, 26 OhApp 244, 159 NE
334; Bartolas v. Coleman, 27 OhApp
119, 161 NE 20; Baltimore & O. R.
Co. v. Shober, 38 OhApp 216, 176
NE 88.
Oklahoma. Mills v. Hollinshed, 82
Okl 250, 200 P 200.
Oregon. Bean v. Tripp, 99 Or
216, 195 P 355.
Pennsylvania. Fluke v. Lang, 286
Pa 31, 132, A 800; Wanamaker v.
Ellis, 306 Pa 222, 159 A 1.
South Carolina. Porter-Construc-
tors v. Dixon Motor Service Co.,
171 SC 396, 172 SE 419,
Wisconsin. City of Baraboo v.
Excelsior Creamery Co., 171 Wis 242,
177 NW 36.
44 Roberson v. Loose-Wiles Bis-
cuit Co. (MoApp), 285 SW 127;
Seaboard Air Line Ry. Co. v. J. E.
Bowden & Co., 144 Va 154, 131 SE
245.
45 Comstock v. Livingston, 210
Mass 581, 97 NE 106.
46 Federal. Griffin Groc. Co. v.
Richardson, 10 F2d 467.
Connecticut. Farrington v. Che-
poms & Panarausky, 84 Conn 1, 78
A 652 (court has discretion to re-
ceive after argument commenced).
Georgia. Central of Georgia Ry.
Co. v. Borland, 12 GaApp 729, 78
SE 352; Farkas v. S. Cohn & Son,
19 GaApp 472, 91 SE 892; Southern
Ry. Co. v. Williams, 19 GaApp 544,
91 SE 1001,
Illinois. Rauch v. Bankers Nat.
Bank, 143 IllApp 625; Bochat v.
Knisely, 144 IllApp 551 (too late
after jury about to retire).
Indiana. Duckwall v. Williams,
29 IndApp 650, 63 NE 232.
Iowa. Davidson v. Vast, 233 la
534, 10 NW2d 12.
Massachusetts. Manning v. An-
thony, 208 Mass 399, 94 NE 466,
32 LRA (N. S.) 1179 (too late after
special findings are submitted and
§150
INSTRUCTIONS — RULES GOVEENING
420
after the charge of the court has been given and the jury have
retired Is rightly refused.47 But it has been held error for the
judge to refuse to give a correct instruction requested during48
or after the argument to the jury,49 or at the close of the
charge,50 or at any time "before the cause is submitted to the
jury."51
(3) The number of requested instructions should be confined
within reasonable limits.52 Where numerous instructions are
answered); Randall v. Peerless Mo-
tor Car Co., 212 Mass 352, 99 NE
221 (too late where tendered after
conclusion of argument).
Michigan. Haynes v. Clark, 252
Mich 295, 233 NW 321.
Missouri. Hall v. St. Joseph, 163
MoApp 214, 146 SW 458; Sweet v.
Bunn, 195 MoApp 500', 193 SW 897.
Where there is a rule of court re-
quiring all instructions to be sub-
mitted and passed upon before the
commencement of argument, there
will be no error in declining to give
an instruction tendered in violation
of the rule. McPheeters v. Hanni-
bal & St. J. E. Co., 45 Mo 22.
New Jersey. Carmany v. West
Jersey & S. S. R. Co., 78 NJL 552,
74 A 656.
North Carolina. Biggs v. Gur-
gamis, 152 NC 173, 67 SE 500;
Holder v. Giant Lbr. Co., 161 NC
177, 76 SE 485.
Ohio. Hocking Valley Ry. Co. v.
James, 1 OhApp 335, 18 OhCirCt
(N. S.) 210, 28 OhCirDec 507; Na-
tional Mach. Co. v. Towne, 11 OhApp
186, 30 OhCtApp 225; Silberman v.
National City Bank, 36 OhApp 442,
173 NE 16; Tucker v. Sherman, 9
OhCirCt (N. S.) 70, 19 OhCirDec
368; Clark v. Bolts, 10 OhCirCt (N.
S.) 1, 19 OhCirDec 665; Sherman v.
Tucker, 16 OhCirCt (N. S.) 190,
31 OhCirDec 492; Cline v. Lantz,
2 OLA 215.
South Carolina. Salley v. Cox, 94
SC 216, 77 SE 933, 46 LRA (N. S.)
53, AnnCas 1915A, 1111.
South Dakota. White v. Amrhien,
14 SD 270, 85 NW 191.
Texas. Missouri, K. & T. Ry. Co.
y. Harrison, 56 TexCivApp 17, 120
SW 254 (discretion to give after jury
has retired).
Vermont. Johnson & Co. v. Cen-
tral Vermont Ry. Co., 84 Vt 486,
79 A 1095 (too late after conclusion
of argument); Russ v. Good, 90 Vt
236, 97 A 987.
47 Georgia. Seaboard Air Line
Ry. v. Barrow, 18 GaApp 261,
89 SE 383; Seaboard Air Line Ry.
v. Lyon, 18 GaApp 266, 89 SE 384;
Weeks v. Reliance Fertilizer Co., 23
GaApp 128, 97 SE 664; Ray v. War-
ren, 28 GaApp 663, 112 SE 831.
Massachusetts. Garrity v. Hig-
gins, 177 Mass 414, 58 NE 1010.
Nebraska. In re Strelow's Estate,
120 Neb 235, 231 NW 837, 233 NW
889 (too late at close of charge).
Vermont. Clark v. Tudhope, 89
Vt 246, 95 A 489.
Washington. In Spokane Valley
State Bank v. Murphy, 150 Wash
640, 274 P 702, requests were held
properly denied when not made un-
til the court was about to instruct
the jury.
Wisconsin. Derge v. Carter, 248
Wis 500, 22 NW2d 505.
48 Cleveland Punch & Shear
Works Co. v. Consumers Carbon Co.,
75 OhSt 153, 78 NE 1009; Stark v.
Cress, 4 OhApp 92, 22 OhCirCt (N.
S.) 88, 28 OhCirDec 442; Hoge v.
Turner, 96 Va 624, 32 SE 291.
49 Baltimore & O. R. Co. v. Me-
Camey, 12 OhCirCt 543, 5 OhCirDec
631.
30 Wagner Elec. Corp. v. Snow-
den, 38 F2d 599.
51 Cleveland Punch & Shear
Works Co. v. Consumers Carbon Co.,
75 OhSt 153, 78 NE 1009.
52 Alabama. Requests asked in
bulk may be refused. Basenberg v.
Lawrence, 160* Ala 422, 49' S 771.
Florida. Atlantic Coast Line R.
Co. v. Whitney, 65 Fla 72, 61 S 179.
421
REQUESTS
§150
requested, it is unreasonable to expect the trial court to give
them all a close examination or to hope for a critical review
by the appellate court in order to find one that might appropri-
ately have been given.53 Thus, it is imposing an undue burden
upon the trial judge to ask him to pass upon eighty-four instruc-
tions requested by one of the parties, and he will be justified
in refusing them all without examination and substituting
therefor an instruction of his own covering the party's theory
of the case.54 So, where a party tendered thirty-one instructions,
in a case involving few principles of law, the number was held
to be beyond reasonable limits.55
(4) Prayers of extreme length are discouraged.56 A
prayer of unusual length fails to subserve the purpose of an
instruction by assisting and enlightening the jury,57 and where
the issues are not intricate, there is a tendency, in multiplying
points and requests, to confuse and mislead.58 Thus where
an instruction is unduly prolix and has the fault of "excessive
verbiage/' it may be refused, particularly when the charge as
given covers all the questions involved in the case.59 So, a
Illinois. Liehtenstein v. L. Fish.
Furn. Co., 272 111 191, 111 NE 729,
AnnCas 1918A, 1087; Duggan v.
Wells Bros. Co., 191 IllApp 499; Nix
v. Branswick-Balke-Collender Co.,
191 IllApp 503; Lovas v. Independ-
ent Breweries Co., 199 IllApp 60.
Indiana. Terre Haute, I. & E.
Trac. Co. v. Phillips, 191 Ind 374,
132 NE 740.
Maryland. Neighbors v. Leather-
man, 116 Md 484, 82 A 152 (refusal
proper for indefiniteness).
Massachusetts. Herrick v. Waitt,
224 Mass 415, 113 NE 205.
Minnesota. Burgess v. Crafts, 184
Minn 384, 238 NW 798.
Mississippi. Yazoo & M. V. R. Co.
v. Dees, 121 Miss 439, 83 S 613.
Missouri. Perkins v. Kansas City
Southern Ry. Co., 329- Mo 1190, 49
SW2d 103 (saying that it is the bet-
ter practice to submit all the facts
in one instruction); Cutts v. Davi-
son (MoApp), 184 SW 921; Friend
v. Jones (MoApp), 185 SW 1159;
Jeffries v. Walsh Fire Clay Products
Co. (MoApp), 233 SW 259.
Ohio. American Steel Packing Co.
v. Conkle, 86 OhSt 117, 99 NE 89;
Mutual Benefit Life Ins. Co. v.
French, 13 OhDecRep 927, 2 CSCR
321; Bates, Haven & Co. v. Ben-
ninger, 13 OhDecRep 1073, 2 CSCR
568; Marsch v. Cincinnati, 2 OLA
475.
Rhode Island. Faccenda v. Rhode
Island Co., 43 RI 199, 110 A 601;
Williams v. Allen, 44 RI 14, 114 A
138.
53 Bergman v. Indianapolis & St.
L. R. Co., 104 Mo 77, 15 SW 992.
54 Woodward v. Waterbury, 113
Conn 457, 155 A 825 (45 requests
were made) ; Chicago Athletic Assn.
v. Eddy Elec. Mfg. Co., 77 IllApp
204.
55 Salem v. Webster, 192 111 369,
61 NE 323.
56 Castle v. Wilson (MoApp), 183
SW 1106.
If an instruction is long and in-
volved and contains an improper
statement even though otherwise
correct, the court is justified in its
refusal. Castelano v. Chicago & J.
Elec. Ry. Co., 149 IllApp 250.
57 Maryland Steel Co. v. Engle-
man, 101 Md 661, 61 A 314.
ssKimball & Austin Mfg. Co. v.
Vroman, 35 Mich 310, 24 AmRep
558.
5*» Ryan v, Washington & G. R.
Co., 8 AppDC 542.
151
INSTRUCTIONS — RULES GOVERNING
422
prayer containing nearly two thousand words has been held
one of such unusual length as would tax the patience and dis-
criminative powers of the jury and was rightly refused.60
§ 151. Duty to make timely request and tender proper instruc-
tions in criminal cases.
The rule in civil cases as to necessity for requests for in-
structions applies in general to criminal cases.
Although the court should instruct on all essential questions
of law involved in the case whether requested or not,61 it is
not error for the court to fail to charge as to a special feature of
the case if instructions thereon are not requested.62 The court
60 Maryland Steel Co. v. Engle-
man, 101 Md 661, 61 A 314. See
Goebel v. Hummel, 21 OhApp 486,
153 NE 223.
61 Federal. Kreiner v. United
States, 11 P2d 722; Stassi v. United
States, 50 F2d 526.
California. People v. Scofield
(CalApp), 25S P 656; People v.
Martin, 114 CalApp 337, 300 P 108.
Colorado. White v. People, 79
Colo 261, 245 P 349.
Georgia. Webb v. State, 11 Ga
App 850, 75 SE 815, 76 SE 990;
Martin v. State, 17 GaApp 516, 87
SE 715; Butler v. State, 17 GaApp
769, 88 SE 593; Bryant v. State, 23
GaApp 3, 97 SE 271; Persons v.
State, 27 GaApp 592, 109 SE 533;
Sellers v. State, 32 GaApp 447, 123
SE 722; Smith v. State, 50 GaApp
105, 177 SE 76.
Kentucky. King v. Common-
wealth, 187 Ky 782, 220' SW 755;
Duroff v. Commonwealth, 192 Ky 31,
232 SW 47; Jackson v. Common-
wealth, 215 Ky 800, 287 SW 17;
Barton v. Commonwealth, 238 Ky
356, 38 SW2d 218; Williams v. Com-
monwealth, 254 Ky 277, 71 SW2d
626; Carter v. Commonwealth, 258
Ky 807, 81 SW2d 883.
Massachusetts. Commonwealth v.
Johnson, 250 Mass 320, 145 NE 425.
Missouri. State v. Lackey, 230 Mo
707, 132 SW 602; State v. Gaultney,
242 Mo 388, 146 SW 1153; State v.
Goode (Mo), 220 SW 854.
Nebraska. Kraus v. State, 102
Neb 690, 169 NW 3; Bailey v. State,
115 Neb 77, 211 NW 200; Foreman
v. State, 127 Neb 824, 257 NW 237,
revg. 126 Neb 619, 253 NW 898.
New Jersey. But see State v.
Haines, 103 NJL 534, 138 A 203.
New York. People v. Odell, 230
NY 481, 130 NE 619.
North Dakota. But see State v.
Hazer, 57 ND 900, 225 NW 319.
Oklahoma. Weems v. State, 16
OklCr 198, 182 P 264.
Pennsylvania. Commonwealth v.
Ferko, 269 Pa 39, 112 A 38; Com-
monwealth v. McCloskey, 273 Pa
456, 117 A 192; Commonwealth v.
Mull, 316 Pa 424, 175 A 418.
In Commonwealth v. Norris, 87
PaSuper 66, it was held not enough
for the court to inquire of counsel
whether anything had been omitted
from the charge.
South Carolina. See State v.
Blanden, 177 SC 1, 180 SE 681.
South Dakota. But see State v.
Cline, 27 SD 573, 132 NW 160.
Tennessee. Webb v. State, 140
Tenn 205, 203 SW 955, 15 ALR 1034;
Pearson v. State, 143 Tenn 385, 226
SW 538.
Vermont State v. Stacy, 104 Vt
379, 160 A 257, 747 (though it is
not required that instructions un-
asked be given on every conceivable
phase of a case).
Wyoming. Gardner v. State, 27
Wyo 316, 196 P 750, 15 ALR 1040.
62 Federal. Hughes v. United
States, 145 CCA 238, 231 F 50; Gay
v. United States, 12 F2d 433, affg.
2 F2d 635.
423
REQUESTS
§151
should give reasonable opportunity for counsel to prepare
requests.63
What the courts consider essential and special is sometimes
surprising.
It has been held not error for the court to fail to charge on
the following matters, in the absence of a request therefor:
burden of proof,64 no presumption from the fact that the indict-
ment or information was found or filed,65 reasonable doubt,66
Arizona. Bush v. State, 19 Ariz
196, 168 P 508; Hann v. State, 30
Ariz 366, 247 P 129.
Arkansas. Hays v. State, 129
Ark 324, 196 SW 123; Lowmack v.
State, 178 Ark 928, 12 SW2d 909.
California. People v. Montezuma,
117 CalApp 125, 3 P2d 370, mfd.
& reh. den. in 117 CalApp 125, 4
P2d 285.
Colorado. McClary v. People, 79
Colo 205, 24& P 491.
Florida. Herndon v. State, 73 Fla
451, 74 S 511; Hobbs v. State, 77
Fla 228, 81 S 444; Witt v. State, 80
Fla 38, 85 S 249.
Georgia. Renfroe v. State, 10 Ga
App 38, 72 SE 520.
Illinois, People v. Lucas, 244 111
603, 91 NE 659; People v. Gibbs,
349 111 83, 181 NE 628.
Kansas. State v. Wilson, 108 Kan
433, 195 P 618; State v. Gary, 124
Kan 219, 257 P 719; State v. Red-
mon, 128 Kan 712, 280 P 754; State
v. Jones, 137 Kan 273, 20 P2d 514.
Massachusetts. Commonwealth v.
Enwright, 259 Mass 152, 156 NE 65.
Michigan. People v. Robinson,
228 Mich 64, 199' NW 622.
Missouri. State v. Garrett, 285
Mo 279, 226 SW 4; State v. Aurentz,
315 Mo 242, 286 SW 69.
Montana. State v. Powell, 54
Mont 217, 169 P 46; State v. Bess,
60 Mont 558, 199 P 426.
Nebraska. Marshall v. State, 116
Neb 45, 215 NW 564; Williams v.
State, 118 Neb 281, 224 NW 286.
North Carolina. State v. Merrick,
171 NC 788, 88 SE 501; State v.
Martin, 173 NC 808, 92 SE 597.
North Dakota. State v. Murbach,
55 ND 846, 215 NW 552.
Ohio. Scott T. State, 10T OhSt
475, 141 NE 19; Rucker v. State,
119 OhSt 189, 162 NE 802.
Oklahoma. Roberts v. State, 36
OMCr 28, 251 P 612; Dilbeck v.
State, 43 OklCr 42, 277 P 284.
Oregon. State v. Wilder, 98 Or
130, 193 P 444.
South Carolina. State v. Sanders,
103 SC 216, 88 SE 10; State v.
Evans, 112 SC 43, 99 SE 751.
Tennessee. Moore v. State, 159
Tenn 112, 17 SW2d 30.
Texas. Montgomery v. State, 9-7
TexCr 503, 262 SW 755; Hall v.
State, 102 TexCr 329, 277 SW 129
(misdemeanor case).
63 Brewer v. State, 13 OklCr 514,
165 P 634.
64 Finch v. State, 24 GaApp 339,
100 SE 793; Fiehn v. State, 124 Neb
16, 245 NW 6.
65 Brooks v. State, 19 GaApp 3,
90 SE 989; State v. Gilmore, 336
Mo 784, 81 SW2d 431; State v.
Magruder (MoApp), 219 SW 701.
66 Alabama. White v. State, 195
Ala 681, 71 S 452.
Arizona. Bush v. State, 19 Ariz
195, 168 P 508.
Arkansas. Prewitt v. State, 150
Ark 279, 234 SW 35.
Georgia. Jackson v. State, 132
Ga 570, 64 SE 656; Williamson v.
State, 151 Ga 352, 106 SE 545.
Indiana. Epple v. State, 190 Ind
87, 129 NE 403.
Michigan. Reasonable doubt need
not be defined by the court unless
requested by the defendant. Peo-
ple v. Spears, 241 Mich 67, 216 NW
S98.
Minnesota. State v. Hines, 148
Minn 393, 182 NW 450,
Missouri. Such an instruction is
mandatorily required in felony cases
§151
INSTRUCTIONS — RULES GOVERNING
424
credibility of witnesses generally,67 the maxim falsus in uno,
falsus in omnibus,68 idiots and lunatics as witnesses,69 the
impeachment of witnesses,70 expert testimony,71 credibility
and corroboration of testimony of rape victim,72 the testimony
of accomplices,73 credibility of the testimony or statement of
but not in misdemeanors. State v.
Halbrook, 311 Mo 664, 279 SW 395.
Nebraska. Trimble v. State, US
Neb 267, 224 NW 274.
North Carolina. State v. Johnson,
193 NO 701, 138 SE 19.
Oklahoma. Nelson v. State, 5 Okl
Cr 368, 114 P 1124; Choate v. State,
19 OklCr 169, 197 P 1060.
Pennsylvania. Commonwealth v.
Varano, 258 Pa 442, 102 A 131;
Commonwealth v. Berney, 262 Pa
176, 105 A 54; Commonwealth v.
Scutack, 105 PaSuper 524, 161 A
610.
67 Idaho. State v. Dunn, 44 Idaho
636, 258 P 553.
Iowa. State v. McMahon (la),
211 NW 409.
Missouri. State v. Miller (Mo),
292 SW 440; State v. Shuls, 329
Mo 245, 44 SW2d 94.
Wisconsin. Ring- v. State, 192
Wis 391, 212 NW 662.
6S State v. Blaha, 39 Nev 115,
154 P 78.
69Watkins v. State, 19 GaApp
234, 91 SE 284. See State v. Fine,
110 NJL 67, 164 A 433.
70 California, People v. Haydon,
18 CalApp 543, 123 P 1102, 1114;
People v. Hovermale, 76 CalApp 91,
243 P 878.
Georgia. Jackson v. State, 135
Ga 684, 70 SE 245; Washington v.
State, 138 Ga 370, 75 SE 253; Kelly
v. State, 145 Ga 210, 88 SE 822;
Benjamin v. State, 150 Ga 78, 102
SE 427; Thomas v. State, 150 Ga
269, 103 SE 244; Craig: v. State,
9; GaApp 233, 70 SE 974; Garrison
v. State, 17 GaApp 314, 86 SE 743;
Wyatt v. State, 18 GaApp 29, 88
SE 718; Williams v. State, 25 Ga
App 193, 102 SE 875; Evans v.
State, 26 GaApp 50, 105 SE 385;
Wyatt v. State, 27 GaApp 45, 107
SE 417; Dunn v. State, 32 GaApp
491, 123 SE 905,
Iowa. State v. Wrenn, 194 la
552, 188 NW 697.
Kentucky. Ayres v. Common-
wealth, 195 Ky 343, 242 SW 624.
Missouri. State v. Hardin, 324
Mo 28, 21 SW2d 758.
Montana. State v. Willette, 46
Mont 326, 127 P 1013.
7 1 Woodruff v. State, 164 Tenn
530, 51 SW2d 843.
720akes v. State, 135 Ark 221,
205 SW 305; McQueary v. People,
48 Colo 214, 110 P 210, 21 AnnCas
560.
73 Federal. Perez v. United
States, 10 F2d 352; Hall v. United
States, 78 F2d 168.
California. People v. Northcott,
209 Cal 639, 289 P 634, 70 ALR
806; People v. Rose, 42 CalApp 540,
183 P 874; People v. Northcott, 46
CalApp 70-6, 189 P 704; People v.
Casey, 79 CalApp 295, 249 P 525,
reh. den. in 250 P 653.
Georgia. Hammontree v. State,
25 GaApp 544, 103 SE 738.
Iowa. But see State v. Myers,
207 la 555, 223 NW 166.
Kansas. State v. Miller, 83 Kan
410, 111 P 437.
Missouri. State v. London (Mo),
295 SW 547; State v. Crow, 337 Mo
397, 84 ,SW2d 926.
New York. People v. Richardson,
222 NY 103, 118 NE 514.
North Carolina. Contra: State v.
Shew, 196 NC 386, 145 SE 679; State
v. Wallace, 203 NC 284, 165 SE 716.
North Dakota. State v. Berenson,
65 ND 480, 260 NW 256.
Pennsylvania. Commonwealth v.
Emmett, 77 PaSuper 396.
South Dakota. State v. Ham, 24
SD 639, 124 NW 955, AnnCas 1912A,
1070.
74 Federal. Harris v. United
States, 59 AppDC 353, 41 F2d 976.
Arkansas. Carroll v. State, 181
Ark 1145, 29 SW2d 670.
425
REQUESTS
151
accused,74 confessions/5 failure of the accused to testify,76
the relative value of positive and negative testimony,77 dying
declarations,78 circumstantial evidence,79 the purpose of
particular evidence and the effect to be given the same,80
Georgia. Swilling v. State, 18
GaApp 618, 90 SE 78; Lott v. State,
18 GaApp 747, 90' SE 727; Brinson
v. State, 22 GaApp 649, 97 SE 102;
Hart v. State, 28 GaApp 258, 110
SE 745; Barton v. State, 35 GaApp
574, 134 SE 185; Watson v. State,
45 GaApp 320, 164 SE 482; Roberts
v. State, 49 GaApp 139, 174 SE
358; Richardson v. State, 51 GaApp
140, 179 SE 771.
New Mexico. State v. Dickens,
23 NM 26, 165 P 850.
South Carolina. State v. King,
158 SC 251, 155 SE 409.
Texas. Garcia v. State, 88 TexCr
605, 228 SW 938.
Washington. State v. Zupan, 155
Wash 80, 283 P 671; State v. Wil-
liams, 156 Wash 6, 286 P 65.
75 California. People v. Fowler,
178 Cal 657, 174 P 892.
Colorado. Reagan v. People, 49
Colo 316, 112 P 785.
Georgia. Story v. State, 145 Ga
43, 88 SE 548; Jones v. State, 150
Ga 628, 104 SE 425; Harris v.
State, 152 Ga 193, 108 SE 777;
Brown v. State, 154 Ga 54, 113 SE
161; Brantley v. State, 154 Ga 80,
113 SE 200; Stiles v. State, 154 Ga
86, 113 SE 208; Cook v. State, 9
GaApp 208, 70 SE 1019; McDuffie
v. State, 17 GaApp 342, 86 SE 821;
Sutton v. State, 17 GaApp 713, 88
SE 122, 587; Simmons v. State, 18
GaApp 104, 88 SE 90'4; Scarboro v.
State, 24 GaApp 27, 99 SE 637;
Johnson v. State, 27 GaApp 315, 108
SE 116.
7 s Bradley v. State, 35 Ariz 420,
279 P 256; State v. Pavelich, 153
Wash 379, 279 P 1102; State v.
Comer, 176 Wash 257, 28 P2d 1027.
77 Patterson v. State, 134 Ga 264,
67 SE 816.
78 Georgia. Thomas v. State, 150
Ga 269, 103 SE 244; Propes v.
State, 22 GaApp 254, 95 SE 939;
Logan v. State, 25 GaApp 756, 104
SE 920.
Missouri. State v. Morgan (Mo),
56 SW2d 385.
Washington. State v. Walker, 104
Wash 472, 177 P 315.
79 Federal. Robinson v. United
States, 96 CCA 307, 172 F 106;
Herman v. United States, 48 F2d
479.
Florida. Ford v. State, 80 Fla
781, 86 S 715.
Georgia. Barron v. State, 12 Ga
App 342, 77 SE 214; Garrett v.
State, 21 GaApp 801, 95 SE 301;
Strickland v. State, 24 GaApp 157,
99 SE 890; Howard v. State, 27 Ga
App 191, 107 SE 629; Switzer v.
State, 28 GaApp 747, 113 SE 55.
It is only where the state relies
wholly on circumstantial evidence
that it is incumbent on the court
without request to instruct as to the
probative value of circumstantial
evidence. Young v. State, 12 Ga
App 86, 76 SE 753.
Idaho. State v. Nolan, 31 Idaho
71, 169 P 295.
Kansas. State v. Kennedy, 105
Kan 347, 184 P 734; State v. Davis,
106 Kan 527, 188 P 231.
Montana. State v. Francis, 58
Mont 659, 194 P 304.
Nebraska. Goldsberry v. State,
92 Neb 211, 137 NW 1116; Fetty
v. State, 121 Neb 228, 236 NW 694
(cautionary instructions as to
weight of circumstantial evidence);
Boerffler v. State, 129 Neb 720, 262
NW 678.
North Carolina. State v. Wil-
loughby, 180 NC 676, 103 SE 903.
Oklahoma. Mum v. State, 43 Okl
Cr 187, 277 P 684.
South Dakota. State v. Millard,
30 SD 169, 138 NW 366.
Texas. Burrows v. State, 123
TexCr 71, 57 SW2d 846.
so Federal. Moffatt v. United
States, 146 CCA 480; 232 F 522;
Hallowell v. United States, 165 CCA
345, 253 F 865; Silkworth v. United
151
INSTRUCTIONS — RULES GOVERNING
426
proof of alibi,81 threats,82 explanation by defendant of his
States, 10 F2d 711; United States
v. McCann, 32 F2d 540; Doyle v.
United States, 33 P2d 265; Harris
v. United States, 48 F2d 771; But-
ler v. United States, 53 F2d 800;
Shepard v. United States, 62 F2d
683; Patterson v. United States, 62
F2d 968; Hartzell v. United States,
72 F2d 569.
Alabama. Houston v. State, 203
Ala 261, 82 S 503; Winford v. State,
16 AlaApp 143, 75 S 819.
California. People v. Escalera, 36
CalApp 212, 171 P 975; People v.
Germino, 38 CalApp 100, 175 P
489; People v. Peck, 43 CalApp 638,
185 P 881; People v. Rubalcado, 56
CalApp 440, 205 P 709.
Illinois. People v. Bransfield, 289
111 72, 124 NE 365; People v. Mason,
301 111 370, 133 NE 767; People v.
Rewland, 335 111 432, 167 NE 10.
Indiana. Thompson v. State, 189
Ind 182, 125 NE 641; Hengstler v.
State, 20'7 Ind 28, 189 NE 623.
Iowa. State v. Pelzer, 182 la 1,
163 NW 600; State v. McCutchan,
219 la 1029, 259 NW 23.
Kentucky. Day v. Commonwealth,
173 Ky 269, 191 SW 105; Bennett
v. Commonwealth, 175 Ky 540, 194
SW 797; Stacey v. Commonwealth,
189 Ky 402, 225 SW 37, 25 ALR
490; McCarty v. Commonwealth, 216
Ky 110, 287 SW 363; Eaton v. Com-
monwealth, 230 Ky 250, 19 SW2d
218; Keller v. Commonwealth, 230
Ky 815, 20 SW2d 998; Miller v. Com-
monwealth, 235 Ky 182, 30 SW2d
484; Johnson v. Commonwealth, 240
Ky 123, 41 SW2d 913; McGee v.
Commonwealth, 246 Ky 445, 55 SW2d
382; Shorter v. Commonwealth, 248
Ky 37, 58 SW2d 224 (the effect of
impeaching evidence); Stigall v.
Commonwealth, 257 Ky 342, 78 SW2d
22; Gregory v. Commonwealth, 257
Ky 438, 78 SW2d 327 (impeaching
testimony).
Massachusetts. Commonwealth v.
Selesnick, 272 Mass 354, 172 NE 343.
Michigan. People v. Manchester,
235 Mich 594, 209 NW 815.
Montana. State v. Francis, 58
Mont 659, 194 P 304; State v.
Schlaps, 78 Mont 560, 254 P 858.
Nebraska. Osborne v. State, 115
Neb 65, 211 NW 179.
New Hampshire. State v. Belisle,
79 NH 444, 111 A 316.
New Jersey. State v. Stanford,
90 NJL 724, 101 A 53; State v.
Columbus, 9 NJMisc 512, 154 A 605,
reh. den. in 9 NJMisc 568, 155 A 11.
North Carolina. State v. Stancill,
178- NC 683, 100 SE 241; State v.
McKeithan, 203 NC 494, 166 SE 336;
State v. Tuttle, 207 NC 649, 178
SE 76.
Ohio. Hitchcock v. State, 47 Oh
App 90, 40 OLE 171, 190 NE 773.
Oregon. State v. Jordan, 146 Or
504, 26 P2d 558, 30 P2d 751.
Vermont. State v. Williams, 94
Vt 423, 111 A 701.
Virginia. Faulkner v. South Bos-
ton, 139 Va 569, 123 SE 358.
West Virginia. State v. Baker,
84 WVa 151, 99 SE 252.
8 * California. People v. Foster,
198 Cal 112, 243 P 667.
Georgia. Moore v. State, 17 Ga
App 344, 86 SE 822; Thomas v.
State, 18 GaApp 101, 88 SE 917;
Pritchett v. State, 18 GaApp 737,
90 SE 492; Haynes v. State, 18 Ga
App 741, 90 SE 485; Barbour v.
State, 24 GaApp 31, 99 SE 782; Bon-
ner v. State, 26 GaApp 185, 10-5 SE
863. But see Holland v. State, 17
GaApp 311, 86 SE 739.
A request is unnecessary where
alibi is the only defense. Hobbs v.
State, 8 GaApp 53, 68 SE 515.
Illinois. People v. Bolik, 241 111
394, 89 NE 700.
Iowa. State v. Sampson, 220 la
142, 261 NW 769.
Kansas. State v. McManaman,
120 Kan 376, 244 P 225.
Michigan. People v. Genther, 218
Mich 289, 187 NW 241.
Missouri. State v. Dockery, 243
Mo 592, 147 SW 976; State v. Hub-
bard (Mo), 295 SW 788; State v.
Wilson, 321 Mo 564, 12 SW2d 445.
427
REQUESTS
151
flight,83 provocation,84 self-defense,83 the good character
of accused,86 the character of deceased for violence,87 evidence
of other crimes,88 intent,89 physical impossibility* of committing
offense as charged,90 capacity to consent to rape,91 failure
of victim to make outcry,92 accidental killing,93 the grade or
Nebraska. Hynes v. State, 115
Neb 391, 213 NW 347.
Tennessee. Curry v. State, 154
Tenn 95, 290 SW 25.
Texas. Jones v. State, 64 TexCr
510, 143 SW 621.
«2 Kimbrell v. State, 138 Ga 413,
75 SE 252; State v. Fletcher (Mo),
190 SW 317.
83 State v. Conrad, 322 Mo 246,
14 SW2d 60-8.
84 Curry v. State, 17 GaApp 312,
86 SE 742; Harris v. State, 18 Ga
App 752, 90 SE 491; Harrelson v.
State, 60 TexCr 534, 132 SW 783.
85 Arizona. State v. Lee, 80 Ariz
213, 295 P2d 380.
Georgia. Brown v. State, 150 Ga
756, 105 SE 289.
Michigan. People v. Droste, 160
Mich 66, 125 NW 87.
Missouri. Contra: State v. Single-
ton (Mo), 77 SW2d 80.
Nevada. State v. Acosta, 49 Nev
184, 242 P 316.
Ohio. Szalkai v. State, 96 OhSt
36, 117 NE 12.
Oklahoma. But see Collegenia v.
State, 9 OMCr 425, 132 P 375.
South Carolina. State v. Pittman,
137 SC 75, 134 SE 514.
Texas. Hall v. State, 111 TexCr
605, 13 SW2d 366.
Washington. State v. Lathrop,
112 Wash 560, 192 P 950.
86 Federal. Kreiner v. United
States, 11 F2d 722.
Georgia, Ellison v. State, 137 Ga
193, 73' SE 255; Brantley v. State,
154 Ga 80, 113 SE 200; Johnson v.
State, 21 GaApp 497, 94 SE 630;
Scarboro v. State, 24 GaApp 27, 99
SE 637; Jenkins v. State, 27 GaApp
640, 109 SE 510; Strickland v. State,
28 GaApp 638, 112 SE 740.
Iowa. State v. Brandenberger, 151
la 197, 130 NW 1065; State v.
Poder, 154 la 6S6, 135 NW 421.
Michigan. People v. Luce, 210
Mich 621, 178 NW 54.
Missouri. State v. Henderson
(Mo), 284 SW 799 (holding it to be
the duty of the court, whether or
not a request therefor is made, to
charge as to good character); State
v. Kimmel, 156 MoApp 461, 137 SW
329.
Contra: State v. Duvall (Mo),
76 SW2d 1097.
New York. Contra: People v.
Viscio, 241 AppDiv 499, 272 NTS
213.
Utah. State v. Baroni, 79 Utah
285, 10 P2d 622.
87 Tillman v. State, 136 Ga 59, 70
SE 876; Crews v. State, 17 GaApp
465, 87 SE 604; Moon v. State,
22 GaApp 617, 97 SE 81.
88 Arkansas. Kyles v. State, 143
Ark 419, 220 SW 458.
Missouri. State v. Rasco, 239 Mo
535, 144 SW 449; State v. Broad-
dus, 315 Mo 1279, 289 SW 792.
Utah. State v. Sullivan, 73 Utah
582, 276 P 166,
Wisconsin. Purpero v. State, 190
Wis 363, 208 NW 475.
89 State v. Smailes, 51 Idaho 321,
5 P2d 540 (intoxication considered on
question of intent) ; Williams v.
State, 120 TexCr 484, 48 SW2d 304.
90 State v. King, 101 Kan 189,
166 P 665.
9 * Underbill v. State, 190' Ind 558,
130 NE 225.
92 State v. Barnes, 325 Mo 545,
29 SW2d 156.
93 Georgia. Webb v. State, 149
Ga 211, 99 SE 630.
Iowa. State v. Richardson (la),
240! NW 695 (manslaughter with
automobile).
Missouri. State v. Ray (Mo), 225
SW 969.
South Carolina. State v. Wilson.
115 SC 248, 105 SE 341.
H51
INSTRUCTIONS — RULES GOVERNING
428
degree of the offense,94 the definition of lesser but included
offenses,95 the punishment for the offense,96 and the form of the
verdict.97
94 Arkansas. Martin v. State, 189
Ark 408, 72 SW2d 539.
California. People v. Woods, 1
CalApp2d 172, 36 P2d 212.
Georgia. When there is nothing
in the evidence to indicate that the
killing was not voluntary and where
no charge is requested on that sub-
ject, involuntary manslaughter is
not an issue in the case, and no
allusion should be made to it in
charging the jury, even though the
prisoner's statement by indirection
suggested such a theory. Jackson v.
State, 91 Ga 271, 18 SE 298, 44
AmSt 22. See also Taylor v. State,
36 GaApp 639, 138 SE 83.
In connection with the foregoing
cases see Tucker v. State, 34 GaApp
670, 131 SE 112, and Jenkins v.
State, 34 GaApp 688, 131 SE 112
in which the court held that where
defendants were convicted of assault
with intent to murder and the evi-
dence showed a mutual intent to
fight and that mutual blows were
struck, the trial court, even with-
out request, should have instructed
on the law of voluntary man-
slaughter, and failure to do so was
reversible error.
Illinois. People v. Funk, 325 111
57, 155 NE 838; People v. McNeal,
346 111 329, 179 NE 109.
Indiana. Bowman v. State, 207
Ind 358, 192 NE 755, 96 ALR 522.
Kansas. State v. Post, 139 Kan
345, 30 P2d 1089.
Minnesota. State v. Beaudette,
168 Minn 444, 210 NW 286.
Mississippi. Tatum v. State, 142
Miss 110, 107 S 418; Dobbs v. State,
167 Miss 609, 142 S 500; Rutland
v. State, 170 Miss 650, 155 S 681,
156 S 520.
Missouri. The court is bound to
instruct on lower degrees if evi-
dence warrants it, and defendant is
not required to make request there-
for. State v. Green, 331 Mo 723,
55 SW2d 965. See also State v.
Fine, 324 Mo 194, 23 SW2d 7; State
v. Perno (Mo), 23 SW2d 87.
New Mexico. By virtue of statute
and rules of court, second degree
murder and manslaughter, where
raised by evidence in the case, must
be submitted in a murder prosecu-
tion whether or not requested. State
v. Diaz, 36 NM 284, 13 P2d 883.
North Dakota. State v. Martin,
54 ND 840, 211 NW 585.
Oklahoma. Logan v. State, 42
OklCr 294, 275 P 657; Pry or v.
State, 51 OklCr 345, 1 P2d 797.
95 Arkansas. Rogers v. State,
152 Ark 40, 237 SW 435,
Florida. Cross v. State, 73 Fla
530, 74 S 593.
Georgia. Pollard v. State, 144 Ga
229, 86 SE 1096; James v. State, 158
Ga 524, 123 SE 880; Duhart v. State,
18 GaApp 287, 89 SE 343; Tyson v.
State, 23 GaApp 20, 97 SE 458.
Illinois. People v. Hobbs, 297 111
399, 130 NE 779.
Kansas. State v. Truskett, 85
Kan 804, 118 P 1047; State v. Ew-
ing, 103 Kan 399, 173 P 927; State v.
Young, 109 Kan 526, 200 P 285;
State v. Lower, 110 Kan 669, 205 P
364.
Michigan. People v. Allie, 216
Mich 133, 184 NW 423; People v.
Collins, 216 Mich 541, 185 NW 850;
People v. Utter, 217 Mich 74, 185
NW 830.
Minnesota. State v. Morris, 149
Minn 41, 182 NW 721.
Mississippi. McLeod v. State, 130
Miss 83, 92 S 828.
Nebraska. Krause v. State, 88
Neb 473, 129 NW 1020, AnnCas
1912B, 736.
North Carolina. State v. David-
son, 172 NC 944, 90 SE 688.
Oklahoma. Each degree of homi-
cide should be denned without re-
quest. Atchison v. State, 3 OklCr
295, 105 P 387.
South Dakota. State v. Frazer, 23
SD 304, 121 NW 790.
429
REQUESTS
§151
It has been held not error for the court to fail to define the
following terms, in the absence of a request therefor: "prima
facie evidence,"98 "heat of passion/7" "wilfully/" "preponder-
ance of evidence/'2 "aid/'3 "pass, utter and punish/'4 "forgery/'5
"malice/'6 "felony/'7 "inmate,"8 "premises,"9 "malt" or "alco-
holic" liquors, ! ° and other terms or phrases. f '
It is held not error to preface the instruction with the
statement that it is given by request, as the instructions are
the law of the case whether given on request or on court's
own motion. 1 2
Requests for instructions in criminal cases should be made
within the time required by statute or rules of court. ' 3 Generally
96 Cason v. State, 23 GaApp 540,
99 SE 61.
97 People v. Minamino, 56 CalApp
386, 205 P 463; People v. Rivera,
57 CalApp 447, 206 P 897.
98 State v. Delaplain, 132 Or 627,
287 P 681; Fagnani v. State, 66
TexCr 291, 146 SW 542.
"Beauregard v. State, 146 Wis
280, 131 NW 347.
1 Stephens v. State, 90 TexCr 245,
234 SW 540.
2 People v. Williams, 184 Cal 590,
194 P 1019.
3 State v. McDonald, 107 Kan 568,
193 P 179.
4 Brown v. State, 26 GaApp 189,
105 SE 723 (aiding and abetting);
State v. Hobl, 108 Kan 261, 194 P
921
5 People v. Meyer, 289 111 184, 124
NE 447.
6 State v. Moynihan, 93 NJL 253,
106 A 817.
7 Cook v. State, 22 GaApp 266,
96 SE 393; Smith v. State, 23 Ga
App 541, 99 SE 142.
8 State v. Burley, 181 la 981, 165
NW 190.
9 Carter v. State, 21 GaApp 493,
94 SE 630.
10 Edwards v. Gulf port, 95 Miss
148, 49 S 620.
1 f California. People v. Emmons,
114 CalApp 26, 299 P 541 (proxi-
mate cause); People v. Cline, 138
CalApp 184, 31 P2d 1095 (narcotic
and anesthetic).
Indiana. Alexander v. State, 202
Ind 1, 170 NE 542.
Iowa. State v. Tibbits, 207 la
1033, 222 NW 423; State v. Grimm,
212 la 1193, 237 NW 451 (defining
crimes of rape and included of-
fenses).
Kansas. State v, Goodman, 123
Kan 19, 254 P 333 (failure to define
alibi); State v. McMahan, 131 Kan
257, 291 P 745 (constructively
present) .
Missouri. State v. Judge, 315 Mo
156, 285 SW 718 (legally qualified
voter) .
New Jersey. State v, Larsen, 105
NJL 266, 144 A 875.
Pennsylvania. Commonwealth v.
Riggs, 313 Pa 457, 169 A 896 (rob-
bery) ; Commonwealth v. State Loan
Corp., 116 PaSuper 365, 176 A 516
(usurious interest).
South Carolina. State v. Doden-
hoff, 153 SC 7, 150 SE 315.
1 2 Georgia. Brantley v. State, 28
GaApp 536, 112 SE 170.
Idaho. But see State v. Marren,
17 Idaho 766, 107 P 993.
Texas. Lott v. State, 66 TexCr
152, 146 SW 544.
Washington. State v. Poyner, 57
Wash 489, 107 P 181.
i s Federal. Hamburg - American
Steam Packet Co. v. United States,
163 CCA 79, 250 P 747; Linn v.
United States, 163 CCA 470y 251
F 476.
Alabama. Osborn v. State, 198
Ala 21, 73 S 985 (during closing
argument too late).
Arkansas. Lee v. State, 145 Ark
75, 223 SW 373 (after argument be-
gins too late).
151
INSTRUCTIONS— RULES GOVERNING
430
such requests should be made before the commencement of
the argument to the jury, ' 4 but it has been held error to refuse
to give instructions that were not requested until after the
commencement of the argument to the jury. 1 5
California. People v. Germino,
38 CalApp 100, 175 P 489 (untimely
to request while court is ruling on
evidence).
Georgia. Lindsay v. State, 138
Ga 818, 76 SE 369; Maddox v. State,
9 GaApp 448, 71 SE 498; McLeod
v. State, 22 GaApp 241, 95 SE 934;
Towler v. State, 24 GaApp 167, 100
SE 42; Brown v. State, 24 GaApp
268, 100 SE 452; Macon v. State, 24
GaApp 337, 100 SE 785; Jones v.
State, 27 GaApp 643, 110 SE 409;
Foster v. State, 27 GaApp 650, 110
SE 416.
Massachusetts. Commonwealth v.
Hassan, 235 Mass 26, 126 NE 287.
Minnesota. State v. Townley, 149
Minn 5, 182 NW 773, 17 ALR 253
(time to enable court to examine).
Mississippi. King v. State, 121
Miss 230, 83 S 164.
Ohio. Venable v. State, 1 OhCir
Ct 301, 1 OhCirDec 165.
Texas. O'Toole v. State, 79 TexCr
153, 183 SW 1160 (after close of
argument too late) ; Merka v. State,
82 TexCr 5501, 199 SW 1123; Arch-
bell v. State, 97 TexCr 337, 260 SW
867.
Vermont. State v, Gomez, 89 Vt
490, 96 A 190 (request at close of
charge too late).
1 4 Federal. Kreiner v. United
States, 11 P2d 722; La Fountain v.
United States, 14 F2d 562 (73 re-
quests tendered after charge had
been given); Dwyer v. United
States, 17 F2d 696; Gilmore v.
United States, 39 F2d 897; Patter-
son v. United States, 62 F2d 968
(requests too late when made after
the jury retired); United States v.
Ellis, 67 F2d 765 (rule held suffi-
ciently complied with).
Arkansas. Carter v. State, 181
Ark 665, 27 SW2d 781.
Colorado. Milow v. People, 89
Colo 469^, 3 P2d 1077.
Kansas. State v. Eyth, 124 Kan
405, 260 P 976.
Louisiana. State v. Ramkissoon-
singhjiki, 163 La 750, 112 S 708.
Massachusetts. Commonwealth v.
Allen, 256 Mass 452, 152 NE 739;
Commonwealth v. Sacco, 259 Mass
128, 156 NE 57.
New Jersey. State v. Juliano, 103
NJL 663, 138 A 575; State v. Mantis,
108 NJL 204, 155 A 17, affg. 8
NJMisc 669, 151 A 376.
Ohio. Kahoun v. State, 33 OhApp
1, 29 OLR 633, 168 NE 550.
15 Federal. Speiller v. United
States, 31 F2d 682.
Alabama. In Harris v. State, 25
AlaApp 215, 143 S 242, it was held
erroneous to refuse written requests
because they were not presented un-
til after oral charge had been given.
Court cannot fix his own time
when charges are to be presented,
where a provision of the code con-
trols; and if requests are presented
in writing at any time before the
jury retires, the judge must either
give or refuse to give them. Jack-
son v. State, 24 AlaApp 601, 139
S 576.
California. In People v. Fink, 121
CalApp 14, 8 P2d 493, the court was
held not authorized to refuse the
charge asked, though not tendered
until after the argument was be-
gun.
New Jersey. In Rowland v. Wun-
derlick, 113 NJL 223, 174 A 168, it
was held immaterial under the par-
ticular facts that the request to
supply omissions in the charge was
not made until after the jury re-
tired.
431
REQUESTS
152
§ 152. Requests for further or more specific Instructions in
civil cases.
It is the duty of the party aggrieved to tender at the proper
time correct instructions to cure defects of indefiniteness or omis-
sion, and if he fails to do so, he cannot be heard to complain on
these grounds.
Where the instructions given by the court are correct so
far as they go, a party who does not request additional and
more explicit instructions may not complain that the instructions
are misleading.16 The rule is the same where the instructions
are correct in principle but are expressed in too general terms. ! 7
1 6 Federal. Louisville & N. R. Co.
v. Holloway, 246 US 525, 62 LEd
867, 38 SupCt 379; Bryne v. Greene,
70 F2d 137.
Alabama. Birmingham R., Light
& Power Co. v. Clark, 148 Ala 673,
41 S 829; Tennessee Coal, Iron &
R. Co. v. Williamson, 164 Ala 54,
51 S 144; Aquilino v. Birmingham
Ry., Light & Power Co., 201 Ala 34,
77 S 328; Sprinkle v. St. Louis &
S. F. R. Co., 215 Ala 191, 110' S
137; Ozark v. Byrd, 225- Ala 332,
143 S 168; Dupuy v. Wright, 7 Ala
App 238, 60 S 997; Taylor v. Luns-
ford, 26 AlaApp 127, 154 S 608.
Where an instruction needs ex-
planation to make it applicable to
the case, an explanatory charge
should be requested. Central of
Georgia R. Co. v. Dothan Mule Co,,
159 Ala 225, 49 S 243.
Arizona. Phoenix v. Mayfield, 41
Ariz 537, 20 P2d 296.
Arkansas. McGee v. Smitherman,
69 Ark 632, 65 SW 461; North
American Union v. Oliphant, 141 Ark
346, 217 SW 1.
California. Peluso v. City Taxi
Co., 41 CalApp 297, 182 P 808; Maus
v. Scavenger Protective Assn., 2 Cal
App2d 624, 39 P2d 209.
Colorado. Mountz v. Apt, 51 Colo
491, 119 P 150; Cooper v. Wood-
ward, 71 Colo 90, 204 P 336.
Connecticut. Willows v. Snyder,
116 Conn 213, 164 A 385.
Florida. Pensacola Elec. Co. v.
Bissett, 59 Fla 360, 52 S 367; Ed-
wards & Sayward v. Fitchner, 104
Fla 52, 139 S 585.
Georgia. A. G. Garbutt Lbr. Co.
v. Camp, 137 Ga 592, 73 SE 841;
Myers v. Phillips, 179 Ga 701, 177
SE 337; Mills v. Pope, 20 GaApp
820, 93 SE 559.
Illinois. Carlson v. Chicago Great
Western R. Co., 205 IllApp 156.
Indiana. Valparaiso Lighting Co.
v. Tyler, 177 Ind 278, 96 NE 768;
New York, C. & St. L. R. Co. v.
First Trust & Sav. Bank, 198 Ind
376, 153 NE 761; Jackson Hill Coal
Co. v. Van Hentenryck, 69 IndApp
142, 120 NE 664; Pittsburgh, C., C.
& St. L. R. Co. v. Tatman, 72 Ind
App 519, 122 NE 357.
A party conceiving that instruc-
tions do not fully present all the
issues to the jury must request in-
structions which will supply the de-
ficiency. Valparaiso Lighting Co.
v. Tyler, 177 Ind 278, 96 NE 768.
Iowa. O'Mara v. Jensma, 143 la
297, 121 NW 518; State v. Geier,
184 la 874, 167 NW 186; Walmer-
Roberts v. Hennessey, 191 la 86,
181 NW 798; Evans v. Oskaloosa
Trac. & Light Co., 192 la 1, 181 NW
782; Hines v. Haugo (la), 188 NW
776; Boles v. Royal Union Life Ins.
Co., 219 la 178, 257 NW 386, 96
ALR 1400.
Kansas. Dighera v. Wheat, 85 Kan
458, 116 P 616; National Bank v.
Ward, 6 KanApp 921, 51 P 58.
Kentucky. Cincinnati, N. 0. & T.
P. R. Co. v. Martin, 146 Ky 260,
142 SW 410; Louisville & I. R. Co.
v. Frazee, 179 Ky 488, 200 SW 948;
Helge v. Babey, 228 Ky 197, 14
SW2d 757.
§152
INSTRUCTIONS — RULES GOVERNING
432
It is not required of the court in
the general charge to give the whole
law of the case. Additional charges
should be requested. Wood v. Rigg,
152 Ky 242, 153 SW 214.
Massachusetts. Pierce v. Arnold
Print Works, 182 Mass 260, 65 NE
368; Clarke v. Massachusetts Title
Ins. Co., 237 Mass 155, 129 NE 376.
Michigan. Spray v. Ayotte, 161
Mich 593, 126 NW 630; Ripley v.
Priest, 169 Mich 383, 135 NW 258;
Betts v. Carpenter, 239 Mich 260,
214 NW 96 (contributory negli-
gence); Kellstrom v. Detroit, 249
Mich 431, 228 NW 763.
Minnesota. Gruber v. German Ro-
man Catholic Aid Soc., 113 Minn
340, 129 NW 581.
Mississippi. Bacon v. Bacon, 76
Miss 458, 24 S 968.
Missouri. First Nat. Bank v.
Ragsdale, 171 Mo 168, 71 SW 178;
Jenkins v. Wabash R. Co., 335 Mo
748, 73 SW2d 1002; Dunham v. Mil-
ler, 154 MoApp 314, 133 SW 675;
Byram v. East St. Louis Ry. Co. (Mo
App), 39 SW2d 376; Garnett v. S.
S. Kresge Co. (MoApp), 85 SW2d
157.
Montana. Dalke v. Pancoast, 63
Mont 524, 208 P 589.
Nebraska. Riley v. Missouri Pacif-
ic R. Co., 69 Neb 82, 95 NW 20;
Webb v. Omaha & S. I. R. Co., 101
Neb 596, 164 NW 564; Cornforth v.
Graham Ice Cream Co., 109 Neb 426,
191 NW 661; Johnson v. Nathan,
161 Neb 399, 73 NW2d 398.
New Hampshire. McCarthy v.
Souther, 83 NH 29, 137 A 445.
New Jersey. Auer v. Sinclair Ref .
Co., 103 NJL 372, 137 A 555, 54 ALR
623.
New York. Felice v. New York
Cent. & EL R. R. Co., 14 AppDiv 345,
43 NYS 922; Hammer v. Blooming-
dale Bros., 215 AppDiv 308, 213
NYS 743.
North Carolina. Trollinger v.
Fleer, 157 NC 81, 72 SE 795; Sher-
rill v. Hood, 208 NC 472, 181 SE
330.
North Dakota. State ex rel. Peo-
ple v. Banik, 21 ND 417, 131 NW
262.
Ohio. Karr v. Sixt, 146 OhSt 527,
67 NE2d 331.
Where a charge is sound as given
but could be made clearer or more
specific by definition of terms used,
substitution of words, or elabora-
tion, the party complaining must
request and tender more specific in-
structions. Failure of the court to
make such charge clearer or more
specific is not reversible error in
the absence of such request. North-
western Ohio Natural Gas Co. v.
First Congregational Church, 126
OhSt 140, 184 NE 512; Netzel v.
Todd, 30' OhApp 300, 165 NE 47;
Houston v. Schrieber, 34 OhApp 244,
170 NE 661; Bruce v. Cook, 34 Oh
App 563, 171 NE 424; Siegel v.
Fischer, 15 OLA 557.
Oklahoma. St. Louis & S. F. R.
Co. v. Crowell, 33 Okl 773, 127 P
1063; Slick Oil Co. v. Coffey, 72
Okl 32, 177 P 915.
Oregon. Page v. Finley, 8 Or 45.
Pennsylvania. Kaufman v. Pitts-
burgh, C. & W. R. Co., 210 Pa 440,
60 A 2; Commonwealth v. Pava, 268
Pa 520, 112 A 103; Meholiff v. River
Transit Co., 342 Pa 394, 20 A2d 762.
South Carolina. Leppard v. West-
ern Union Tel. Co., 88 SC 388, 70
SE 1004; Llewellyn v. Atlantic
Greyhound Corp., 204 SC 156, 28
SE2d 673.
South Dakota. Connell v. Canton,
24 SD 572, 124 NW 839.
Tennessee. Tennessee Coach Co.
v. Young, 18 TennApp 592, 80 SW2d
107.
Texas. Parks v. Sullivan (Tex
CivApp), 152 SW 704; Beaumont,
S. L. & W. Ry. Co. v. Myrick (Tex
CivApp), 208 SW 935; Missouri, K.
& T. R. Co. v. O'Connor (TexCiv
App), 298 SW 921.
A charge submitting matters of
defense conjunctively is not affirma-
tively erroneous. The defect is one
of omission to be corrected by a re-
quest for instructions submittting
the matters disjunctively. Oar v.
Davis (TexCivApp), 135 SW 710',
affd. in 105 Tex 479, 151 SW 794.
Vermont. De Nottbeck v. Chap-
man, 93 Vt 378, 108 A 338.
43S
REQUESTS
§152
It is not required that instructions should state to which
count of the declaration they apply in the absence of request to
that effect.'8
While a party is entitled on request to clear and accurate
instructions to the jury, the charge need not discuss all specific
items of evidence desired to be emphasized by plaintiff or
defendant. A requested instruction merely calling- for comment
and emphasis on a specific item of evidence was properly denied. ' 9
The inadequacy of instructions as to the measure of damages
is not ground for reversal where more explicit instructions
were not requested.20 Instructions should be requested where
Washington. Harris v. Brown's
Bay Logging Co., 57 Wash 8, 106
P 152; O'Connell v. Home Oil Co.,
180 Wash 461, 40 P2d 991.
West Virginia. Henry C. Werner
Co. v. Calhoun, 55 WVa 246, 46 SE
1024.
Wisconsin. Stewart v. Ripon, 38
Wis 584; Murphy v. Martin, 58 Wis
276, 16 NW 603; Braunsdorf v. Fell-
ner, 76 Wis 1, 45 NW 97; Owen v.
Long, 97 Wis 78, 72 NW 364; New
Home Sewing Mach. Co. v. Simon,
113 Wis 267, 89' NW 144.
1 7 Alabama. Empire Clothing Co.
v. Hammons, 17 AlaApp 60, 81 S
838 (abstract instruction).
Arkansas. Bourland v. Caraway,
183 Ark 848, 39 SW2d 316.
Georgia. Gainesville v. Hanes, 22
GaApp 589, 96 SE 349.
Iowa. Livingstone v. Dole, 184 la
1340, 167 NW 639; Stilwell v. Stil-
well, 186 la 177, 172 NW 177.
Kansas. There should be a re-
quest for a more complete instruc-
tion if the charge, as given, is lack-
ing in some particular, as in the
matter of fullness of statement of
a principle of law. Turner v. Tootle,
9 KanApp 765, 58 P 562.
Missouri. Quinn v. Van Raalte,
276 Mo 71, 205 SW 59; Dale v.
Smith (MoApp), 185 SW 1183;
O'Hara v. Lamb Constr. Co., 200
MoApp 292, 206 SW 253; Baldwin
v. Kansas City Rys. Co. (MoApp),
231 SW 280.
Montana. Russell v. Sunburst
Ref. Co., 83 Mont 452, 272 P 998.
Nebraska. Christensen v. Tate,
87 Neb 848, 128 NW 622; Haight v.
Omaha & C. B. St. Ry. Co., 101
Neb 841, 166 NW 248.
North Carolina. Duguid v. Ras-
berry, 183 NC 134, 110 SE 840.
North Dakota. Zilke v. Johnson,
22 ND 75, 132 NW 640, AnnCas
1913E, 1005.
Oklahoma. Ada v. Smith, 73 Okl
280, 175 P 924.
Pennsylvania. Ross v. Riffle, 310
Pa 176, 164 A 913.
1 8 Adamson's Admr. v. Norfolk <&
P. Trac. Co., Ill Va 556, 69 SE 1055.
1 9 Holmes v. Clear Weave Ho-
siery Stores, Inc., 95 NH 478, 66 A2d
702.
20 United States. Western & At-
lantic R. Co. v. Hughes, 278 US
496, 73 LEd 473, 49 SupCt 231.
Alabama. Liberty Life Assur.
Soc. v. Woodard, 219 Ala 24, 121 S
30i; Brown v. Woolverton, 219 Ala
112, 121 S 404, 64 ALR 640.
California. Wyseur v. Davis, 58
CalApp 598, 209 P 213; Aladdin Co.
v. Gregory, 102 CalApp 272, 282 P
1019.
Connecticut. Hageman v. Free-
burg, 115 Conn 469, 162 A 21.
Georgia. Meador v. Patterson, 25
GaApp 267, 103 SE 95.
Indiana. New York Cent. R. Co.
v. Reidenbach, 71 IndApp 390, 125
NE 55.
Iowa. Darst v. Ft. Dodge, D. M.
& S. R. Co., 194 la 1145, 191 NW
288; Rastede v. Chicago, St. P., M.
& O. R. Co., 203 la 430, 212 NW
751.
Kentucky. Nashville, C. & St. L.
R. Co. v. Henry, 168 Ky 453, 182
SW 651; Gray-Von Allmen Sanitary
152
INSTRUCTIONS — RULES GOVERNING
434
the party fears that the jury is not sufficiently impressed with
the necessity of rendering verdict on evidence alone.21 A party
should request a definition of terms which the charge of the
court fails to define or he will be denied the right to complain
of this lack.22
In a suit to reform a deed, failure to instruct more partic-
ularly as to the law of mistake, valuable consideration, and
Milk Co. v. McAfee, 229 Ky 444,
17 SW2d 231.
Michigan. Adelsperger Y, Detroit,
248 Mich 399, 227 NW 694.
Missouri. Greenwell v. Chicago,
M. & St. P. Ry. Co. (Mo), 224 SW
404; Bailee v. St. Louis-San Fran-
cisco R. Co., 321 Mo 798, 12 SW2d
476; Keyes v. Chicago, B. & Q. R.
Co., 326 Mo 236, 31 SW2d 50; Voel-
ker v. Hill-0'Meara Constr. Co., 153
MoApp 1, 131 SW 907; Cook v. St.
Joseph, 203 MoApp 430, 220 SW
693; Kuhn v. St. Joseph (MoApp),
234 SW 353; Stephens v. Saunders
(MoApp), 239 SW 600; Kinsman v.
Harper, 221 MoApp 1110, 298 SW
121; Pavlo v. Forum Lunch Co. (Mo
App), 19 SW2d 510; Lakin v. Chi-
cago, R. L & P. R. Co. (MoApp),
78 SW2d 481.
Montana. Wallace v. Chicago, M.
& P. S. R. Co., 52 Mont 345, 157 P
995.
New Jersey. Jersey City v. Meyer
(NJ), 150 A 354.
North Carolina. Gihbs v. Western
Union Tel. Co., 196 NC 516, 146 SE
209; Hodgin v. Liberty, 201 NC 658,
161 SE 94.
North Dakota, Soules v. North-
era Pacific R. Co., 34 ND 7, 157
NW 823, LRA 1917A, 501; Hewlett
v. Stockyards Nat. Bank, 48 ND
933, 188 NW 172.
Pennsylvania, Powell v. S. Morgan
Smith Co., 237 Pa 272, 85 A 416;
Hoffman v. Berwind-White Coal
Min. Co., 265 Pa 476, 109 A 234.
South Carolina. Templeton v.
Charleston & W. R. Co., 117 SC 44,
108 SE 363; Andrews v. Hurst, 163
SC 86, 161 SE 331.
Texas. Texas & P. Ry. Co. v.
Bullard (TexCivApp), 127 SW 1152;
Commonwealth Ins. Co. v. Finegold
(TexCivApp), 183 SW 83'3; Rio
Grande, E. P. & S. F. R. Co. v.
Kraft & Madero (TexCivApp), 212
SW 981.
Virginia. Radford v. Brooks, 125
Va 621, 100 SE 664.
West Virginia. Taylor v. Sturm
Lbr. Co., 90 WVa 530, 111 SE 481;
Nees v. Julian Goldman Stores, 109
WVa 329, 154 SE 769.
21 Alabama. Conway v. Robin-
son, 216 Ala 495, 113 S 531.
Montana. Kelley v. John R. Daily
Co., 56 Mont 63, 181 P 326.
New Hampshire. Hussey v. Bos-
ton & M. R. R. Co., 82 NH 236, 133
A 9.
22 Alabama. Hammett v. Bir-
mingham Ry., Light & Power Co.,
202 Ala 520, 81 S 22.
Georgia. Pye v. Pye, 133 Ga 246,
65 SE 424; Freeman v. Petty, 22
GaApp 199, 95 SE 737 (express war-
ranty),
Iowa. Hanna v. Central States
Elec. Co., 210 la 864, 232 NW 421;
McQuillen v. Meyers, 213 la 1366,
241 NW 442.
Maine. Farnum v. Clifford, 118
Me 145, 106 A 344.
Maryland. Zulver v. Roberts, 162
Md 636, 161 A 9 (failure to limit
term "contributory negligence*' as
applied to children).
Minnesota. Hayday v. Hammer-
mill Paper Co., 184 Minn 8, 237 NW
600; Clark v. Banner Grain Co., 195
Minn 44, 261 NW 596.
Missouri. Hurlburt v. Bush, 284
Mo $97, 224 SW 323; Berryman v.
Southern Surety Co., 285 Mo 379,
227 SW 96; Brickell v. Fleming
(Mo), 281 SW 951 (higrh, danger-
ous, and negligent rate of speed) ;
Hobart-Lee Tie Co. v. Grodsky, 329
Mo 706, 46 SW2d 859; Rippetoe v.
435
REQUESTS
§153
mental incapacity of grantor was not error, in absence of a
written request therefor.23
§ 153, Requests for further or more specific instructions in
criminal cases.
In criminal cases, it is the duty of the party aggrieved to
tender at the proper time correct instructions to cure defects
of indefimteness or omission; his failure to do so will preclude
complaint by him.
The rule in civil cases24 on this matter applies to criminal
cases as well.25 But this rule does not apply to substantive,
Missouri, K. & T. R. Co., 138 Mo
App 402, 122 SW 314; Nagle v.
Alberter (MoApp), 53 SW2d 289.
New Jersey. Public Nat. Bank v.
Patriotic Ins. Co., 105 NJL 477, 144
A 566.
Texas. Gulf, C. & S. F. Ry. Co.
v. Conley (TexCivApp), 236 SW 521;
Great West Mill & Elev. Co. v. Hess
(TexCivApp), 281 SW 234 (con-
tributing proximate cause).
Wisconsin. Thomas v. Williams,
139 Wis 467, 121 NW 148 (ma-
licious) .
23Boddie v. Ridley, 197 Ga 221,
28 SE2d 773.
24 See § 152, supra,.
25 Federal. Steers v. United
States, 112 CCA 423, 192 F 1;
Schultz v. United States, 118 CCA
420, 200 F 234.
California. People v. Anthony, 20
CalApp 586, 129 P 968; People v.
Shaw, 36 CalApp 441, 172 P 401.
Florida. Miller v. State, 76 Fla
518, 80 S 314; Turner v. State, 9$
Fla 246, 126 S 158.
Georgia. Dickens v. State, 137 Ga
523, 73 SE 826; Whitley v. State, 8
GaApp 165, 68 SE 863; Wells v.
State, 17 GaApp 301, 86 SE 650;
Hamilton v. State, 18 GaApp 925, 89
SE 449; Wilkinson v. State, 18 Ga
App 330, 89 SE 460 (keeping lewd
house); Dumas v. State, 25 GaApp
543, 103 SE 739; Reese v. State, 34
GaApp 600, 130 SE 920.
Illinois. People v. Schmidt, 292
111 127, 126 NE 570.
Indiana. Brewster v. State, 186
Ind 369, 115 NE 54; Colondro v.
State, 188 Ind 533, 125 NE 27; Kel-
lar v. State, 192 Ind 38, 134 NE 881;
Pollard v. State, 201 Ind 180, 166
NE 654, 84 ALR 779; Alexander v.
State, 202 Ind 1, 170 NE 542; Lloyd
v. State, 206 Ind 359, 189 NE 406;
Bowman v. State, 207 Ind 358, 192
NE 755, 96 ALR 522 (forms of ver-
dict); Erf man v. State, 207 Ind
673, 194 NE 326.
Iowa. State v. Christ, 189 la 474,
177 NW 54; State v. Griffin, 218 la
1301, 254 NW 841.
Louisiana. State v. Charles, 124
La 744, 50 S 699, 18 AnnCas 934.
Massachusetts. Commonwealth v,
Hassan, 235 Mass 26, 126 NE 287.
Michigan. People v. Williams, 208
Mich 586, 175 NW 187; People v.
Depew, 215 Mich 317, 183 NW 750.
Missouri. State v. Herring, 268
Mo 514, 188 SW 169; State v. Rozell
(Mo), 279 SW 705.
North Carolina. State v. Yates,
155 NC 450, 71 SE 317; State v.
Burton, 172 NC 939, 90 SE 561;
State v. Coleman, 178 NC 757, 101
SE 261; State v. Ellis, 20*3 NC 836,
167 SE 67.
Ohio. State v. Schiller, 70 OhSt
1, 70 NE 505; Scott v. State, 107 Oh
St 475, 141 NE 19; Snook v. State,
34 OhApp 60, 170 NE 444; Hayes v.
State, 14 OhCirCt (N. S.) 497, 25
OhCirDec 57, 59 OhBull 322; Mur-
ray v. State, 23 OhCirCt (N. S.) 50'8,
34 OhCirDec 340; Pomeransky v.
State, 1 OLA 220.
Where a trial court gives an in-
struction which is allegedly incom-
plete, but correct as far as it goes,
failure to charge further, if it is er-
ror, is an error of omission and not
153
INSTRUCTIONS — RULES GOVERNING
436
material, or essential features of the charge against the defend-
ant.26
Instructions should be requested where the charge of the
court is incomplete,27 or may have a tendency to mislead,28 or
defines offenses insufficiently,29 or omits necessary definitions,30
or fails to state that the jury are judges of the law and the facts
in a state where that is the rule,31 or the charge is thought
lacking on the question of insanity32 or reasonable doubt as
of commission. Unless counsel has
requested an instruction to supply
the omission, such error will not or-
dinarily justify reversal. State v.
Tudor, 154 OhSt 249, 43 OhO 130,
95 NE2d 385; State v. Elf rink, 161
OhSt 549, 53 OhO 406, 120- NE2d 83.
Oklahoma. Davis v. State, 15 Okl
Cr 386, 177 P 621; Reagan v. State,
35 OklCr 332, 250 P 435; Nance v.
State, 43 OklCr 247, 278 P 357.
Oregon. State v. Chong Ben, 89
Or 313, 173 P 258, 1173.
Pennsylvania. Commonwealth v.
Webb, 252 Pa 187, 97 A 189; Com-
monwealth v. Russogulo, 263 Pa 93,
106 A 180 (presumption of inno-
cence); Commonwealth v. Bednor-
ciki, 264 Pa 124, 107 A 666; Com-
monwealth v. Scherer, 266 Pa 210,
109 A 867; Commonwealth v. Dorst,
285 Pa 232, 132 A 168; Common-
wealth v. Girardot, 107 PaSuper
274, 163 A 362.
South Carolina. State v. Cokley,
83 SC 197, 65 SE 174; State v.
Burns, 107 SC 351, 92 SE 1033; State
v. Brown, US SC 513, 101 SE 847;
State v. Craig, 161 SC 232, 159 SE
559.
Texas. Hoyle v. State, 62 TexCr
297, 137 SW 355; Powdrill v. State,
69 TexCr 340, 155 SW 231; Cross v.
State, 85 TexCr 430, 213 SW 638;
Carter v. State, 90 TexCr 248, 234
SW 535,
Washington. State v. Willey, 165
Wash 247, 5 P2d 319,
Wyoming. State v. Aragon, 41
Wyo 308, 285 P 803.
26 Florida. Croft v. State, 117
Fla 832, 158 S 454
Georgia. Gleaton v. State, 50 Ga
App 210, 177 SE 362.
North Carolina. State v. Stead-
man, 200 NO 768, 158 SE 478.
2?Brundage v. State, 7 GaApp
726, 67 SE 1051; Birmingham v.
State, 145 Wis 90, 129 NW 670.
28 Alabama. Jones v. State, 176
Ala 20, 58 S 250; Murphy v. State,
14 AlaApp 78, 71 S 967; Evans v.
State, 17 AlaApp 141, 82 S 625.
Illinois. People v. Paisley, 288 111
310, 123 NE 573.
South Carolina. Fuller definitions
should be requested. State v. Chas-
tain, 85 SC 64, 67 SE 6-.
29 Georgia. McKee v. State, 174
Ga 120, 162 SE 139.
Indiana. Partlow v. State, 191 Ind
660, 128 NE 436 (knowledge as ele-
ment of receiving stolen goods);
Hammell v. State, 198- Ind 45, 152
NE 161.
Nevada. State v. Verganadis, 50
Nev 1, 248 P 900.
North Carolina. State v. Gore,
207 NC 618, 178 SE 209'.
Texas. Zimmerman v. State, 85
TexCr 630, 215 SW 101.
Utah. State v. Prince, 75 Utah
205, 284 P 108.
30 Georgia. Kelly v. State, 145
Ga 210, 88 SE 822 (successful im-
peachment); Pope v. State, 150 Ga
703, 105 SE 296 (malice); Yopp v.
State, 175 Ga 314, 165 SE 29 (rea-
sonable doubt).
Pennsylvania. Commonwealth v.
Bruno, 316 Pa 394, 175 A 518.
South Carolina. State v. Allen,
110 SC 278, 96 SE 401.
3 1 People v. Mirabella, 294 111
246, 128 NE 374.
32 Federal. Daly v. United States,
38 F2d 443.
Arkansas. Carty v. State, 135 Ark
169, 204 SW 207.
437
BEQUESTS
154
a defense,33 or is incomplete in so far as it concerns identifi-
cation,34 impeaching testimony,35 or presumption that confession
obtained by officers was produced by threats.36
So, a defendant deeming an instruction insufficient to present
the matter of self-defense is under duty to request a more
specific charge.37 The same is true as to threats claimed to
have been made against the defendant by the victim of a
homicide,38 character evidence,39 or circumstantial evidence.40
In the absence of a request for a more specific direction to
the jury, it is sufficient for the court to charge on flight that
it, if unexplained, is a circumstance indicating guilt.41
§ 154. Formal requisites of requests.
The requested instruction should be (1) made in writing,
(2) signed by the party or his attorney, (3) filed and tendered
to the court, (4) and marked by the court as "given" or "re-
fused."
(1) The requested instruction, as distinguished from the
request itself, should be made in writing.42 It is not good practice
California. People v. Zentgraf, 49
CalApp 336, 193 P 274; People v.
Bradshaw, 5 CalApp2d 528, 43 P2d
317.
Georgia. Smith v. McClure, 151
Ga 484, 107 SE 830; Cook v. State,
174 Ga 462, 163 SE 150.
33 California. People v. Geonzelis,
106 CalApp 434, 289 P 667.
Missouri. State v. Carter (Mo
App), 16 SW2d 648.
Pennsylvania. Commonwealth v.
Grill, 94 PaSuper 330; Common-
wealth v. Fisher, 96 PaSuper 155.
3 4 People v. De Hoog, 100 Gal
App 235, 279 P 1067; Trimble v.
State, 118 Neb 267, 224 NW 274.
35 Eaton v. Commonwealth, 230
Ky 250, 19 SW2d 218.
36 Snook v. State, 34 OhApp 60,
170 NE 444, error dismissed in 121
OhSt 625, 172 NE 307, and cert den.
in 281 US 722, 74 LEd 1141, 50 Sup
Ct 237
37 Calif ornia. People v. Bryant,
77 CalApp 375, 246 P 815.
Michigan. People v. Statkiewicz,
247 Mich 260, 225 NW 540.
Missouri. State v. Rozell (Mo),
279 SW 705; State v. Sudduth, 331
Mo 728, 55 SW2d 962.
Nevada. See State v. Hall, 54
Nev 213, 13 P2d 624.
North Dakota. State v. Turner, 59
ND 229, 229 NW 7.
Oklahoma. Carmichael v. State,
44 OklCr 160, 279- P 515.
Pennsylvania. Commonwealth v.
Mendola, 294 Pa 353, 144 A 292.
3* Georgia. Hartley v. State, 168
Ga 296, 147 SE 504.
Missouri. State v. Robinett, 312
Mo 635, 281 SW 29.
Tennessee. Green v. State, 154
Tenn 26, 285 SW 554.
39C. M. Spring Drug" Co. v.
United States, 12 F2d 852; Foshay
v. United States, 68 F2d 205; State
v. Kneeskern, 203 la 929, 210 NW
465. See State v. Schenk, 220 la 511,
262 NW 129.
4«> State v. Holley, 136 SC 68,
134 SE 213; State v. Wenger, 47
Wyo 401, 38 P2d 339.
4 1 Land v. State, 37 GaApp 382,
140 SE 406.
42 Alabama. Oldacre v. State, 196
Ala 690, 72 S 303; Davis v. Bran-
don, 200 Ala 160, 75 S 908; Norris
v. State, 229 Ala 226, 156 S 556 (un-
der requirements of Code 1923,
§ 9509) ; Foote v. State, 16 AlaApp
136, 75 S 728.
154
INSTRUCTIONS — RULES GOVERNING
438
to mark or indicate passages in law books and statutes and
hand them to the court as requests.43 But the request to correct
an omission in a charge is sufficient by referring to the syllabus
of a reported case.44
California. People v. Newton, 108
CalApp 599, 291 P 853; People v.
Shayer, 135 CalApp 755, 28 P2d 48.
Florida. Tindall v. State, 99 Fla
1132, 128 S 494.
Georgia. Hunter v. State, 136 Ga
103, 70 SE 643; Reed v. State, 148
Ga 18, 95 SE 692; Bass v. State, 152
Ga 415, 110 SE 237; Davis v. State,
153 Ga 154, 112 SE 280; Montgomery
v. Savannah Elec. Co., 17 GaApp
452, 87 SE 690; Craddock v. Sea-
board Air Line Ry., 17 GaApp 472,
87 SE 693; Cash v. State, 18 Ga
App 486, 89 SE 603; Richardson v.
State, 18 GaApp 755, 90 SE 487;
Dumas v. J. W. Stafford & Son, 22
GaApp 365, 95 SE 1009; Freeman v.
Metropolitan Life Ins. Co., 35 Ga
App 770, 134 SE 639; McCaskell v.
State, 39 GaApp 412, 147 SE 408;
Byrd v. Grace, 43 GaApp 255, 158
SE 467.
Illinois. Minis v. Mutual Ben.
Health & Ace. Assn., 319 IllApp 239,
48 NE2d 796.
Kentucky, Wolnnbarger v. Stan-
ton, 220 Ky 451, 295 SW 467; Fidel-
ity & Deposit Co. v. Common-
wealth for Use of Freer, 231 Ky
346, 21 SW2d 452; Howell v. Stand-
ard Oil Co., 234 Ky 347, 28 SW2d
3; Murphy v. Phelps, 241 Ky 339,
43 SW2d 1010.
Massachusetts. Commonwealth v.
Feci, 235 Mass 562, 127 NE 602.
Michigan. Harnau v. Haight, 189
Mich 600, 155 NW 563.
The Michigan statute relating to
requests to charge provides for writ-
ten requests, but makes no mention
of any right to verbally ask a specific
instruction (C. L. 1948, §691.432,
Stat. Ann. § 27.1092). But the judge
may grant an oral request, but, if he
declines, it would not be error.
Corpron v. Skiprick, 334 Mich 311,
54 NW2d 601.
Minnesota. Clark v. Banner Grain
Co., 195 Minn 44, 261 NW 596 (ex-
planation of statute not required
without written request).
Mississippi. The requests must be
made in writing, and the judge can-
not instruct without such requests.
Masonite Corp. v. Lochridge, 163
Miss 364, 140 S 223, 141 S 758.
Missouri. State v. Layton, 332 Mo
216, 58 SW2d 454; Fenton v. Hart
(Mo App), 73 SW2d 1034.
Nebraska. Luther v. Luther, 103
Neb 46, 170 NW 364; Grosh v. State,
118 Neb 517, 225 NW 479.
New Hampshire. The presiding
judge may waive the requirement
that requests must be in writing.
O'Dowd v. Heller, 82 NH 387, 134
A 344.
New Jersey. Hartwyck v. Shea,
114 NJL 235, 176 A 390.
North Carolina. State v. Wilkes,
170 NC 735, 87 SE 48 (right to re-
fuse oral request) ; State v. Holt,
192 NC 490, 135 SE 3-24.
Ohio. Hocking Valley Ry. Co. v.
James, 1 OhApp 335, 18 OhCirCt
(N. S.) 210, 28 OhCirDec 507; Pol-
lock v. McGinty, 7 OLA 216.
The instructions presented to the
court must be in writing, but the
request to give the presented in-
structions need not be in writing.
Dunham v. Mulby, 24 OhApp 509,
156 NE 608.
Oklahoma. Relf v. State, 44 Okl
Cr 239, 280 P 851; Ford v. State, 52
OklCr 321. 5 P2d 170; Carpenter v.
State, 56 OklCr 76, 33 P2d 637.
Pennsylvania. It is not good prac-
tice to give oral instructions. Leon-
hardt v. Green, 251 Pa 579, 96 A
1096.
Tennessee. Walkup v. Covington,
18 TennApp 117, 73 SW2d 718.
Texas. Stephens v. State, 125 Tex
Cr 397, 68 SW2d 181.
Wyoming. Smith v. State, 17
Wyo 481, 101 P 847.
43 American Nat. Bank v. Ward,
145 Ga 551, 89 SE 578; Stein-
439
BEQUESTS
§154
(2) The requested instruction should be signed by the party
or his attorney.4®
(3) The requested instruction should be filed and tendered
to the court.46 Asking permission to offer instructions is not
equivalent to requesting the giving of instructions.47 A bare
exception to a charge given is not equivalent to a request for
an instruction on the subject covered by the instruction to which
exception is taken.48
(4) The requested instruction should be marked by the
court as ''given" or "refused,"49 although it is not necessarily
error merely to fail to mark the requested instruction in this
way.50 In some jurisdictions, it is considered bad practice for
the court to announce that the instructions given were requested
by one of the parties.51
heimer v. Bridges, 146 Ga 214, 91
SE 191; Conley v. State, 21 GaApp
134, 94 SE 261. But see Pickens v.
Miller, 119 Conn 553, 177 A 573, ap-
plying provisions of Practice Book
1934, p. 59, § 156.
44 Kelley v. Ohio Trac. Co., 24 Oh
App 539, 157 NE 765.
45 Alabama. Winford v. State, 16
AlaApp 143, 75 S 819.
Indiana. Bader v. State, 176 Ind
268, 94 NE 1009; Weigand v. State,
178 Ind 623, 99 NE 999; Logans-
port v. Green, 192 Ind 253, 135 NE
657.
In Wiley v. State, 200 Ind 572, 165
NE 313, a statutory requirement that
requested instructions be signed was
held not complied with by the sig-
nature of the defendant's attorneys.
Texas. First Nat. Bank v. Pat-
terson (TexCivApp), 185 SW 1018.
4e Flatters v. State, 189 Ind 287,
127 NE 5; Texas & P. Ry. Co. v.
Thorp (TexCivApp), 198 SW 335.
47 Ross v. Burton, 218 Ky 765,
292 SW 301.
48 Ripper v. United States, 103
CCA 478, 179 F 497. But see Green
v. State, 118 TexCr 428, 38 SW2d
99.
49 Alabama. Indorsement of rea-
sons for refusal was held a "wise
and proper precaution." Stevenson
v. State, 18 AlaApp 174, 90 S 140.
Illinois. Gibbons v. Paducah & I.
R. Co., 211 111 App 138, affd. in 284
111 559, 120 NE 500.
Where the trial court, on the
ground that it was contrary to its
practice of limiting the number of
instructions given in negligence
cases to eight, refused to consider
fourteen instructions requested by
the defendant, and refused to mark
them either given or refused, such
was held contrary to the practice
act, and reversible error. Nugent v.
Waters, 266 IllApp 377.
Minnesota. State v. Miller, 151
Minn 386, 186 NW 803.
Mississippi. But see Nelson v.
State, 129 Miss 288, 92 S 66 (in-
struction given without giving other
party opportunity for requesting
explanatory instruction) .
New York. Delisky v. Leonard,
189 AppDiv 623, 179' NYS 112.
Oklahoma. It is error for court to
mark instructions "given" and then
fail to read it to the jury. Methvine
v. Fisher, 64 Okl 309, 166 P 702.
Texas. Kansas City, M. & 0. Ry.
Co. v. Harral (TexCivApp), 199
SW 659'j Daniels v. Franklin (Tex
CivApp), 233 SW 380.
50 Nicol v. Davis, 107 CalApp 26,
290 P 114; Pate v. Rodman, 254
IllApp 372.
5 ' Curran v. Chicago Great West-
ern Ry. Co., 134 Minn 392, 159 NW
955; Moore v. P. J. Downes Co., 150
Minn 333, 185 NW 395.
g 155
INSTRUCTIONS — RULES GOVERNING
440
It is the practice in some jurisdictions to require the re-
quested instructions to be numbered.52
The requested instruction should not contain more than one
proposition of law;53 but it is not fatal that several of the
requested instructions are on a single sheet of paper.54
§ 155. Necessity of clear expression in requested instruction.
The request must be stated in clear, distinct, and definite lan-
guage, and should be refused where the language employed is
vague, indefinite, or calculated to mislead the jury.
Since a granted instruction will be read to the jury, it is
obvious that a requested instruction should be refused if the lan-
guage is so ambiguous as to mislead the jury.55 More partic-
ularly, the requested instruction should be refused if it is unin-
52 Hill v. State, 21 AlaApp 310,
107 S 789.
53 Kast v. Turley, 111 Conn 253,
149 A 673; Central Casualty Co. v.
Fleming, 22 OhApp 129, 153 NE
345; Medford v. Kimmey (TexCiv
App), 298 SW 140.
S4Baltrunas v. Baubles, 23 Oh
App 104, 154 NE 747.
55 Federal. Dwyer v. United
States, 17 F2d 696; Memphis Press-
Scimitar Co. v. Chapman, 62 F2d
565 (adhering to this rule, but hold-
ing the request sufficiently definite
to direct the court's attention to
failure to charge on a material mat-
ter); United States v. Great North-
ern Ry. Co., 73 F2d 736.
Connecticut. Requests should or-
dinarily contain only plain proposi-
tions of law, based on stated as-
sumptions of fact not unwarranted
by the evidence. They should not
contain statements of disputed facts
or evidence. Urbansky v. Kutinsky,
86 Conn 22, 84 A 317.
Illinois. Kehl v. Abram, 112 111
App 77, affd. in 210 111 218, 71 NE
347, 102 AmSt 158; Shope v. Laugh-
lin, 191 IllApp 38.
Maryland. Neighbors v. Leather-
man, 116 Md 484, 82 A 152; Penn
Oil Co. v. Triangle Petroleum &
Gasoline Co., 136 Md 559, 111 A 482.
Missouri. Vague verbal request
not sufficient to require court to in-
struct on collateral matters. State
v. Starr, 244 Mo 161, 148- SW 862.
Montana. Melzner v. Chicago, M.
& St. P. Ry. Co., 51 Mont 487, 153
P 1019.
New Jersey. Thompson v. Lan-
caster, 8 NJMisc 71, 148 A 400 (re-
quest failing to state provision of
traffic law) . See Farrell v. Weisman,
108 NJL 458, 158 A 826.
Ohio. American Steel Packing Co.
v. Conkle, 86 OhSt 117, 99 NE 89;
Cincinnati Trac. Co. v. Lied, 9
OhApp 156, 29 OCA 136; Haley v.
Dempsey, 14 OhApp 326; Cleveland,
C., C. & St. L. Ry. Co. v. Wehmeier,
33 OhApp 475, 170 NE 27, 31 OLR
45; Great Atlantic & Pacific Tea Co.
v. Redmond, 30 OLR 449, 7 OLA
645; Kopachy v. Blank, 7 OLA 281;
Griffith v. Griffith, 12 OLA 716.
Pennsylvania. Hanley v. Epstein,
107 PaSuper 507, 164 A 122.
Texas. Barnes v. Dallas Consol.
Elec. Street Ry. Co., 103 Tex 387,
128 SW 367; Creager v. Yarborough
(TexCivApp), 87 SW 376; Zuniga
v. State, 115 TexCr 222, 28 SW2d
822.
Requested instructions in misde-
meanor cases, unlike those in felony
cases, must state pointedly the law
applicable to the case. Brent v.
State, 57 TexCr 411, 123 SW 593.
West Virginia. Patton & Shaver
v. Elks River Nav. Co., la WVa 259.
441 REQUESTS § 156
telligible or meaningless,56 or abstract,37 or needs construction
to prevent misleading the jury.58 The court may refuse a request
that is interlined and contains erasures as that is calculated to
confuse the jury.59 Where an instruction states the law in tech-
nical language and in such a manner that its meaning is apt
to be misunderstood by the jury, requiring more than a verbal
change to make it clear, there will be no error in refusing it.60
So, where an instruction fails to make good sense, it should be
withheld, and this will be true even though it may be apparent
that the word "defendant" was unintentionally used for "plain-
tiff."61
But, while it is true that the form of an instruction should
be clear and intelligible, it is not necessary to anticipate and
guard against every possibility of misapprehension.62 The fact
of misspelling of words is not ground for refusal if the instruc-
tion is otherwise intelligible.63
§ 156. Modification of requested instructions.
In both criminal and civil cases, the court may refuse an in-
struction which is not good as submitted. But if the requested
instruction correctly states the applicable law, the court may
modify a requested instruction to conform to the facts and give
it in his own language.
Civil cases. A requested instruction should be good as asked,
and there is no obligation of the court to modify the requested
instruction.64 But if the instruction correctly states the law,
the court may modify requests to conform to the facts and he
may if he chooses submit the substance of the request in his
own language, though the requested instruction is correct.65 A
56 McDonald v. State, 165 Ala 85, 5S Jebeles & Colias Confectionery
51 S 629; Lee v. State, 3 AlaApp Co. v. Booze. 181 Ala 456, 6>2 S 12;
36, 57 S 395. Great Atlantic & Pacific Tea Co. v.
57 Georgia. Mercantile Nat. Bank Redmond, 30 OLE 449, 7 OLA 645.
v. Stein, 158 Ga 894, 124 SE 697. 59 Roberts v. State, 171 Ala 12,
Massachusetts. McDonough v. 54 S 993.
Vozzela, 247 Mass 552, 142 NE 831. 6O Ramsey v. Burns, 27 Mont 154,
North Carolina. Beck v. Sylva 69 P 711.
Tanning Co., 179 NC 123, 101 SE 6I Macon Consol. Street R. Co. v.
498. Barnes, 113 Ga 212, 38 SE 756.
Pennsylvania. Cobb v. Bradford 62 Parsons v. Lyman, 71 Minn 34,
Tp., 232 Pa 198, 81 A 199. 73 NW 634
A point should contain but a 63 Brewer v. Home Supply Co., 17
single legal proposition and be so AlaApp 273, 84 S 560 ("sole" spelled
constructed that the trial court can "sold"),
answer it by a single affirmation or 64 See § 157, infra.
negation. Schweitzer v. Williams, 6S Federal. Washington Times
43 PaSuper 202. Co. v. Murray, 55 AppDC 32, 299 P
903.
.156
INSTRUCTIONS — RULES GOVERNING
442
California. Fiori v. Agnew, 33 Cal
App 284, 164 P 899.
Connecticut. Board of Water
Comrs. of New London v. Bobbins
& Potter, 82 Conn 623, 74 A 938;
Badwick v. Goldstein, 90 Conn 701,
98 A 583; Fagerholm v. Nielson, 93
Conn 380, 106 A 333; Dunn v.
Poirot, 97 Conn 713, 118 A 33;
Rohde v. Nock, 101 Conn 439, 126 A
335; Pickens v. Miller, 119 Conn
553, 177 A 573; Goodman v. Nor-
walk Jewish Center, Inc., 145 Conn
146, 139 A2d 812.
Illinois. Kleet v. Southern Illi-
nois Coal & Coke Co., 197 IllApp
243.
Iowa. Farr v. Mackie Motors Co.,
193 la 954, 186 NW 52.
Kansas. Evans v. Laf eyth, 29 Kan
736.
Kentucky. West Kentucky Coal
Co. v. Key, 178 Ky 220', 198 SW 724;
Slusher v. Hopkins, 28 KyL 347, 89
SW 244.
Maine. Dalton v. Callahan, 122
Me 178, 119 A 380.
Massachusetts. Day v. Cooley, 118
Mass 524; O'Leary v. Boston Elev.
Ry. Co., 209 Mass 62, 95 NE 85;
Holbrook v. Seagrave, 228 Mass 26,
116 NE 889; Heuser v. Tileston &
Hollingworth Co., 230 Mass 299, 119
NE 683; Clarke v. Massachusetts
Title Ins. Co., 237 Mass 155, 129 NE
376; McDonough v, Vozzela, 247
Mass 552, 142 NE 831; Barnes v.
Berkshire Street Ry. Co., 281 Mass
47, 183 NE 416.
Michigan. Bloch v. Detroit United
Ry., 211 Mich 252, 178 NW 670.
Minnesota. Anderson v. Foley
Bros., 110 Minn 151, 124 NW 987.
New Hampshire. Elwell v. Roper,
72 NH 585, 58 A 507; Graham v.
Weber, 79- NH 393, 109 A 717.
New Jersey. Pavan v. Worthen &
Aldrich Co., 80 NJL 567, 78 A 658;
Gluckman v. Darling:, 87 NJL 320,
95 A 1078; State v. Dedge, 100 NJL
70, 125 A 316; McLaughlin v. Dam-
boldt, 100 NJL 127, 125 A 314; Boele
v. Colonial Western Airways, 110
NJL 76, 164 A 436, affg. 10 NJMisc
217, 158 A 440; Hamilton v. Alt-
house, 115 NJL 248, 178 A 792;
Leavitt v. Leavitt, 7 NJMisc 124, 144
A 186, affd. in 106 NJL 247, 148 A
918; Hauranchalk v. Warren & Ar-
thur Smadbeck, Inc., 13 NJMise 190,
177 A 240.
North Carolina. In re Craven's
Will, 169 NC 561, 86 SE 587; Lloyd
v. Bowen, 170 NC 216, 86 SE 797;
Reed Coal Co. v. Fain, 171 NC 646,
89 SE 29; Beck v. Sylva Tanning
Co., 179 NC 123, 101 SE 498; Jones
v. D. L. Taylor & Co., 179 NC 293,
102 SE 397; In re Hinton's Will, 180
NC 206, 104 SE 341.
Ohio. A party requesting an in-
struction is entitled to have it given
or refused in the form requested.
Commissioners v. Swanson, 7 OhApp
405, 27 OhCtApp 167, 28 OhCirDec
353. See also Premier Service Co. v.
Sefton, 31 OhApp 154, 166 NE 140;
Lake Shore & M. S. By. Co. v.
Schultz, 19 OhCirCt 639, 9 OhCirDec
816.
Statutory provision forbidding
modification of written instructions
is inapplicable to written charges
given before argument. Pratt v.
Byers, 41 OhApp 112, 179 NE 747.
Oklahoma. Finch v. American
State Bank, 97 Okl 172, 223 P 631;
Campbell v. Breece, 134 Okl 266,
274 P 1085.
Oregon. Nutt v. Isensee, 60 Or
395, 119 P 722; Laird v. Frick, 142
Or 639', 18 P2d 1029.
Pennsylvania. Hufnagle v. Dela-
ware & Hudson Co., 227 Pa 476, 76
A 205, 40 LRA (N. S.) 982, 19 Ann
Cas 850.
South Carolina. Pooler v. Smith,
73 SC 102, 52 SE 967; Hair v.
Winnsboro Bank, 103 SC 343, 88 SE
26; Dutton v. Atlantic Coast Line
R. Co., 104 SC 16, 88 SE 263- North
State Lbr. Co. v. Charleston Consol.
Ry. & Lighting Co., 115 SC 267, 105
SE 406.
Texas. Western Union Tel. Co. v.
Goodson (TexCivApp), 202 SW 766.
The court should give or refuse a
charge as requested; it is improper
to alter a charge without the con-
sent of the party asking it and
443
REQUESTS
156
party is not entitled to require the giving of an instruction in
any particular word formation,66 since the court as a general
rule is under no obligation to instruct in the identical language
of the request,67 but may change the instruction to make it
more clear.68
then give it as such party's charge.
St. Louis S. W. Ry. Co. v. Ball, 28
TexCivApp 287, 66 SW 879.
Utah. Speight v. Rocky Mountain
Bell Tel. Co., 36 Utah 483, 107 P
742.
Vermont. Desmarchier v. Frost,
91 Vt 138, 99 A 782; Rice v. Ben-
nington County Sav. Bank, 93 Vt
493, 108 A 708.
Virginia. Fitzgerald v. Southern
Farm Agency, 122 Va 264, 94 SE
761.
Washington. Edwards v. Seattle,
R. & S. Ry. Co., 62 Wash 77, 113 P
563; Perry Bros. v. Diamond Ice &
Storage Co., 92 Wash 105, 158 P
1008, AnnCas 1918C, 891; Lund v.
Griffiths & Sprague Stevedoring Co.,
108 Wash 220, 183 P 123; Fehler v.
Montesano, 110 Wash 143, 188 P 5;
Hayes v. Staples, 129 Wash 436, 225
P 417; Child v. Hill, 155 Wash 133,
283 P 1076.
West Virginia. Griffith v. Ameri-
can Coal Co., 78 WVa 34, 88 SE 595;
Atlas Realty Co. v. Monroe, 116 W
Va 337, 180 SE 261; Polen v. Huber,
116 WVa 456, 181 SE 718.
Wisconsin. Hamus v. Weber, 199
Wis 320, 226 NW 392.
66 Maryland. United Rys. & Elec.
Co. v. Perkins, 152 Md 105, 136 A
50.
Missouri. Goudie v. National
Surety Co. (MoApp), 288 SW 369.
New Hampshire. Salvas v. Can-
tin, 85 NH 489, 160 A 727.
New Jersey. Karnitsky v. Ma-
chanic, 94 NJL 127, 109 A 303;
Hochreutener v. Pfenninger, 113
NJL 317, 174 A 513.
North Carolina. Security Life &
Annuity Co. v. Forrest, 152 NC 621,
68 SE 139; Bailey v. Hassell, 184 NC
450, 115 SE 166.
Ohio. In Premier Service Co. v.
Sefton, 31 OhApp 154, 166 NE 140,
it was held that where a special
charge is requested by one party,
the court should either refuse to
give it if erroneous, or should give
it without comment if proper, but it
is error for the court to modify such
charge.
Error cannot be predicated on re-
fusal of charges, one of which was
given with corrections admittedly
necessary, and others of which were
substantially covered. Becker S. S.
Co. v. Snyder, 31 OhApp 379, 166
NE 645.
The trial judge has no right of
his own volition to change context
of written preargument request to
charge; and by voluntarily changing
such request to charge and giving
it in a changed form he makes it his
own. Warn v. Whipple, 45 OhApp
285, 187 NE 88, 39 OLR 49.
Oregon. Riley v. Good, 142 Or
155, 18 P2d 222.
Utah. Nelson v. Lott, 81 Utah
265, 17 P2d 272.
Washington. Averbuch v. Great
Northern Ry. Co., 55 Wash 633, 104
P 1103.
67 Federal. Rice v. Eisner, 16 F2d
358; Guardian Trust Co. v. Meyer,
19 F2d 186; O'Boyle v. Northwestern
Fire & Marine Ins. Co., 49 F2d 713;
United States v. Burke, 50' F2d 653;
New England Trust Co. v. Farr, 57
F2d 103.
Connecticut. Sizer v. Waterbury,
113 Conn 145, 154 A 639.
Massachusetts. Ponticelli v. Ca-
taldo, 255 Mass 473, 152 NE 81.
New Jersey. Van Pelt v. Sturgis,
102 NJL 708, 133 A 303; Runyon v.
Monarch Ace. Ins. Co., 108 NJL
489, 158 A 530; Ryan. v. Deans, 114
NJL 199, 176 A 160.
Oklahoma. First State Bank v.
Dickerson, 119 Okl 103, 245 P 54.
Oregon. Howland v. Fenner Mfg.
Co., 121 Or 1, 252 P 962.
§156
INSTRUCTIONS — RULES GOVERNING
444
The court may modify the requested instruction by eliminat-
ing argumentative matter,69 or he may eliminate from an
instruction a part which ignores a material point of fact,70
or he may modify an abstract proposition so as to cover a
concrete case presented by the evidence.71 He may change the
words "should find" to "may find."72 He may modify a request
in an automobile collision case by adding thereto a declaration
that a given rate of speed through a village would constitute
prima facie negligence, if the question whether there was
negligence is left to the determination of the jury.73 Where the
request contained the word "insanity," it was permissible for the
court to substitute "unsoundness of mind."74
A request which is not supported by the evidence may be re-
fused75 or modified.76 And the party offering the instruction
cannot complain that it is modified by the court, where it is not
Rhode Island. Hatch v. Sallinger,
47 RI 395, 133 A 621.
Washington. Nicolle v. United
Auto Transp. Co., 138 Wash 48, 244
P 127.
68 Arkansas. Allen v. Northern,
121 Ark 150, 180 SW 465 (example
of modification making instruction
confusing and misleading).
Illinois. Pulver v. Ainsworth, 205
IllApp 80; Harovsky v. Chicago City
R. Co., 205 IllApp 570; Costello v.
Federal Life Ins. Co., 259 IllApp
321.
Missouri. Lefever v. Stephens on
(Mo), 193 SW 840.
An instruction should be redrawn
where modification has not aided
clearness. Esstman v. United Rys.
Co. (Mo), 216 SW 526.
New Jersey. Schweers v. Eliza-
beth-Union-Hillside-Irvington Line,
Inc., 13 NJMisc 188, 178 A 68.
New York. Fowler v. Interna-
tional Ry. Co., 217 AppDiv 537, 216
NYS 558.
South Carolina. See also Autrey
v. Bell, 114 SC 370, 103 SE 749.
69 California. People v. Palassou,
14 CalApp 123, 111 P 109 (criminal
case) ; Fitzgerald v. Southern Pacific
Co., 36 CalApp 660, 173 P 91.
Massachusetts. Whitman v. Four-
nier, 233 Mass 154, 125 NE 303.
Montana. Simons v. Jennings, 100
Mont 55, 46 P2d 704.
Utah. Gibson v. George G. Doyle
& Co., 37 Utah 21, 106 P 512.
Washington. Jones v. Elliott, 111
Wash 138, 189 P 1007.
70 Capitol Trac. Co. v. McKeon,
132 Md 79, 103 A 314.
7 * California. Moeller v. Packard,
86 CalApp 459, 261 P 315.
Illinois. Oetgen v. Lowe, 204 111
App 608.
Minnesota. Lamoreaux & Champ-
lin v. Norman, 151 Minn 489, 187
NW 606.
Pennsylvania. See Glasco v.
Green, 273 Pa 353, 117 A 79.
Washington. Kennedy v. Supreme
Tent of Knights of Maccabees, 100
Wash 36, 170 P 371.
West Virginia. Parfitt v. Sterling
Veneer & Basket Co., 68 WVa 438,
69 SE 985.
72 Elliott v. Maves, 196 IllApp
605.
73 Livingston v. Rice, 96 IndApp
176, 184 NE 583.
7 4 Miller v, Ahrbecker, 320 111
577, 151 NE 526.
75 Baltimore & 0. R. Co. v. Few's
Exrs., 94 Va 82, 26 SE 406. But see
Levine Bros. v. Mantell, 90 WVa
166, 111 SE 501.
76 Fisher v. St. Louis Transit Co.,
198 Mo 562, 95 SW 917. See also
Baldwin v. Cobb, 190 Ark 899, 82
SW2d 12; United States Fidelity &
Guaranty Co. v. Country Club, 129
Va 306, 105 SE 686.
445
REQUESTS
§156
founded on the evidence and where it assumes the existence of
a nonexisting fact,77 but there is no obligatory duty to recast the
requested instructions.78
It is not an alteration to define a word used in a requested
instruction.79 Nor is explanatory matter given by the court
to be regarded as a modification of the instruction.80 The court
may strike from requested instructions matter which is but
repetition or restatement of other matter therein.81
The practice of modifying instructions and leaving the part
struck out so it may be read by the jury is not approved.82
Criminal cases. The right to modify requests is the same in
criminal as civil cases.83 In such cases the court may ordinarily
77 Crown Coal & Tow Co. v. Tay-
lor, 184 111 250, 56 NE 328; Stroud
v. Chicago, M. & St. P. Ry. Co., 75
Mont 384, 243 F 1089.
78 Jackson v. United States, 48
AppDC 272; Johnson v. St. Charles,
200 IllApp 184.
79 Louis Pizitz Dry Goods Co. v.
Cusimano, 206 Ala 689, 91 S 779;
St. Louis Dairy Co. v. Northwestern
Bottle Co. (MoApp), 204 SW 281.
80 Montgomery Light & Water
Power Co. v. Thombs, 204 Ala 678,
87 S 205.
81 Illinois. Snedden v. Illinois
Cent. R. Co., 234 IllApp 234.
Missouri Kunkel v. Griffith, 325
Mo 392, 29 SW2d 64.
Oklahoma. Liberty Nat. Bank v.
Exendine, 156 Okl 26, 11 P2d 154.
Utah. Broadbent v. Denver & R.
G. Ry. Co., 48 Utah 598, 160' P 1185.
Virginia. Southern Ry. Co. v.
Johnson, 151 Va 345, 146 SE 363.
32 People v. Lacey, 339 111 480',
171 NE 544; Harris v. Schlink, 200'
IllApp 202.
83 Arkansas. Owens v. State, 120
Ark 562, 179 SW 1014; Patterson v.
State, 140 Ark 236, 215 SW 629;
Milloway v. State, 158 Ark 642, 240
SW 718.
California. People v. Carantan, 11
CalApp 561, 105 P 768; People v.
Cox, 29 CalApp 419, 155 P 1010;
People v. Puski, 49- CalApp 4, 192
P 552.
Delaware. Colombo v. State, 2
Boyce (25 Del) 28, 78 A 595.
Florida. Pittman v. State, 82 Fla
24, 89 S 336.
Georgia. Waller v. State, 23 Ga
App 156, 97 SE 876.
The court is not required to elab-
orate requested instruction given
by him. Fulford v. State, 149 Ga
162, 99 SE 303.
Illinois. People v. Foster, 288 111
371, 123 NE 534; People v. Le Morte,
289 111 11, 124 NE 301; People v.
Limeberry, 298 111 355, 131 NE 691;
People v. Bermingham, 301 111 513,
134 NE 54; People v. Beil, 322 111
434, 153 NE 639; People v. Andrews,
327 111 162, 158 NE 462.
It is not error for the court to
give numerous requests as one in-
struction hy striking from each of
them, but the first, the introductory
words "The court instructs the
jury.3' People v. Allegretti, 29 111
364, 126 NE 158.
Kentucky. Morgan v. Common-
wealth, 188 Ky 458, 222 SW 940.
Maine. State v. Mockus, 120 Me
84, 113 A 39, 14 ALR 871.
North Carolina. A request to
charge that it is dangerous- to con-
vict on the testimony of an accom-
plice was changed so that the jury
were told that they should accept
the testimony of an accomplice with
caution. State v. McKeithan, 203 NG
494, 166 SE 336.
South Carolina. State v. Jones, 104
SC 141, 88 SE 444; State v. Cooper,
120 SC 280, 113 SE 132.
§156
INSTRUCTIONS — RULES GOVERNING
446
charge the substance of the request in his own language.84 The
form of the instruction being immaterial, the appellate courts
will not make a comparison of the given instructions with those
requested, to ascertain which would have been the better.85
The court will strike from the proffered instruction matter that
is argumentative.86 A request to charge on self-defense may be
modified by striking therefrom words that define the amount
of force that may be used in self-defense, where the subject of
self-defense was covered by other instructions.87
84 United States. Sugarman v.
United States, 249 US 182, 63 LEd
550, 30 SupCt 191.
Federal. O'Hare v. United States,
165 CCA 208, 253 F 538; Fraina v.
United States, 166 CCA 356, 255 F
28; Bonness v. United States, 20 F2d
754; White v. United States, 30 F2d
590; Gibson v. United States, 31 F2d
19; Frisina v. United States, 49 F2d
733; Dean v. United States, 51 F2d
481; Faircloth v. United States, 55
F2d 655.
Arkansas. Sheppard v. State, 120
Ark 160, 179 SW 168.
California. People v. Adams, 79
CalApp 373, 249 P 536; People v.
Howard, 120 CalApp 45, 8 P2d 176;
People v. Mesa, 121 CalApp 345, 8
P2d 920.
Connecticut. State v. Castelli, 92
Conn 58, 101 A 476.
Georgia. Autrey v. State, 24 Ga
App 414, 100 SE 782.
Illinois. People v. Cash, 326 111
104, 157 NE 76; People v. Dunham,
344 111 268, 176 NE 325.
Michigan. People v. Cutler, 197
Mich 6, 163 NW 493.
Nebraska. Johnson v. State, 88
Neb 328, 129 NW 281, AnnCas
1912B, 965; Kirchman v. State, 122
Neb 624, 241 NW 100.
New Jersey. State v. Rombolo, 91
NJL 560, 103 A 203; State v. Fisch-
er, 97 NJL 34, 117 A 519; State v.
Juliano, 103 NJL 663, 138 A 575.
New York. People v. Eadcliffe,
232 NY 249, 133 NE 577.
North Carolina. State v. Barrett,
151 NC 665, 65 SE 894; State v.
Price, 158 NC 641, 74 SE 587; State
v. Tate, 161 NC 280, 76 SE 713;
State v. Homer, 174 NC 788, 94 SE
291; State v. Fulcher, 176 NC 724,
97 SE 2; State v. Baldwin, 178 NC
693, 100 SE 345; State v. Bailey, 179
NC 724, 102 SE 406; State v. Kin-
caid, 183 NC 709, 110 SE 612.
Ohio. National Mach. Co. v.
Towne, 11 OhApp 186, 30' OhCtApp
225; Hunt v. State, 42 OhApp 119,
181 NE 651, 36 OLE 557.
Oregon. State v. Butler, 96 Or
219, 186 P 55; State v. Cody, 116 Or
509, 241 P 983; State v. Wisdom, 122
Or 148, 257 P 826.
South Carolina. State v. Simmons,
112 SC 451, 100 SE 149.
South Dakota. State v. Kammel,
23 SD 465, 122 NW 420:
Texas. Substance should be given
where request is sufficient to call
attention of court to its failure to
submit defense. Eubanks v. State,
57 TexCr 153, 122 SW 35.
Utah. State v. Franco, 76 Utah
202, 289 P 100.
Virginia. Lufty v. Commonwealth,
126 Va 707, 100 SE 829.
Washington. State v. Cherry
Point Fish Co., 72 Wash 420, 130 P
499; State v. Colagino, 119 Wash
301, 205 P 413; State v. Simpson,
119 Wash 653, 206 P 561; State v.
Adelstein, 152 Wash 65, 277 P 387;
State v. Moore, 182 Wash 111, 45
P2d 605.
West Virginia. But see State v.
Rice, 83 WVa 409, 98 SE 432.
85 State v, Lowenthal, 183 Wash
14, 48 P2d 909.
86McKinney v. State, 140 Ark
529, 215 SW 723; Warren v. State,
153 Ark 497, 241 SW 15; Pope v.
State, 172 Ark 61, 287 SW 747;
People v. Andrews, 327 111 162, 158
NE 462.
8T Harmon v. State, 190 Ark 823,
81 SW2d 30.
447
REQUESTS
157
Where, however, the law is correctly stated In the request,
the court should not weaken the statement by adding matter
not pertinent although correct in the abstract.88
§ 157. Refusal for errors in request.
In both criminal and civil cases, It is not error for the court
to refuse to give a requested instruction not correct as presented.
If a requested instruction does not correctly state the law
applicable to the issues, it is not error to refuse to give it.89
The same rule applies to requested instructions which invade the
province of the jury,90 fail to state a complete legal proposi-
tion,9' contain language discrediting the claim of the opposite
party,92 are argumentative,93 unintelligible,94 or abstract.95 But
88 Alabama. Bailum v. State, 17
AlaApp 679, 88 S 200.
Arkansas. See also Hams v.
State, 140' Ark 46, 215 SW 620.
California, People v. Emmons, IS
CalApp 487, 110' P 151.
Florida. Taylor v. State, 98 Fla
881, 124 S 445 (refusal of request
held error).
Illinois. People v. Pursley, 302 111
62, 134 NE 128.
North Carolina. State v. Bowman,
152 NC 817, 67 SE 1058.
89 Federal. A requested instruc-
tion should not be refused merely
because it is susceptible to such an
interpretation as to make its prop-
ositions not absolutely accurate.
Rothe v. Pennsylvania Co., 195 F 21.
Indiana. Keller v. Reynolds, 12
IndApp 383, 40 NE 76, 280.
Missouri. Davis v. Springfield
Hosp. (MoApp), 196 SW 104.
Ohio. Baltimore & 0. R. Co. v.
Schultz, 43 OhSt 270, 1 NE 324, 54
AmRep 805; Hartford Fire Ins. Co.
v. Cincinnati Ice Mfg. & Cold Stor-
age Co., 9 OhApp 403, 28 OCA 273,
30 OhCirDec 167; Gallup v. Toledo
Terminal R. Co., 26 OhApp 447, 160
NE 493.
Virginia. Keen v. Monroe, 75 Va
424.
90 Beekes v. Cutler, 322 Mass 392,
77 NE2d 402; Rowy v. Mainella, 68
RI 149, 26 A2d 755.
9 1 Federal. Lehigh Talley R. Co.
v. Mangan, 278 F 85.
Alabama. Turner v. State, 160
Ala 55, 49 S 304.
Georgia. Wright v. Western & A.
R. Co., 139 Ga 343, 77 SE 161.
The trial judge did not err in re-
fusing a request to charge "the law
on impeachment of witnesses." Wal-
ler v. State, 164 Ga 128, 138 SE 67.
Louisiana. State v. Blount, 124
La 202, 50 S 12.
Massachusetts. It is proper to re-
fuse request omitting a material
qualification of the subject-matter.
Arlington Nat. Bank v. Bennett, 214
Mass 352, 101 NE 982.
South Carolina. Garrison v. Coca
Cola Bottling Co., 174 SC 396, 177
SE 656.
92 Potter v. Chicago, M. & St. P.
R. Co., 208 IllApp 363; Hensley v.
Hilton, 191 Ind 309, 131 NE 38.
93Altavilla v. Old Colony St. R.
Co., 222 Mass 322, 110 NE 970.
94 Griffin Groc. Co. v. Richardson,
10 F2d 467.
95 Arizona. MacDonald v. Calkins,
31 Ariz 161, 251 P 458.
California. People v. Smith, 81
CalApp 126, 251 P 958.
Georgia. Childers v. Ackerman
Constr. Co., 211 Ga 350, 86 SE2d
227; City of Summerville v. Sellers*
94 GaApp 152, 94 SE2d 69.
Nebraska. Frazier T. Anderson.
143 Neb 905, 11 NW2d 764.
Ohio. Kohn v. B. F. Goodrich Co.,
139 OhSt 141, 38 NE2d 592.
Vermont. Wells v. Burlington
§157
INSTRUCTIONS — RULES GOVERNING
448
it is not proper to refuse a request that is otherwise correct and
appropriate, merely because it is unduly technical.96
The court is under no obligation to modify it or substitute
a correct instruction to remedy the defect,97 unless the instruc-
tion asked for is of such a character that to give or refuse it
might mislead the jury.98
If part of a single requested instruction is incorrect, the
court commits no error in wholly refusing it.99 The court is not
Rapid Transit Co., 116 Vt 75, 68
A2d 912.
96 Bolivar v. Kelly, 69 F2d 58. See
Island Exp. v. Frederick, 5 W. W.
Harr. (35 Del) 569, 171 A 181.
97 Alabama. Colley v. State, 167
Ala 109, 52, S 832.
Arkansas. American Ins. Co. v.
Haynie, 91 Ark 43, 120' SW 825.
District of Columbia. Capital
Trac. Co. v. Copland, 47 AppDC 152.
Illinois. Weeks v. Jones, 200 111
App 215; Potter v. Chicago, M. & St.
P. R. Co., 208 IllApp 363.
Maine. State v. Fogg, 107 Me 177,
77 A 714.
Maryland. Annapolis Gas & Elec.
Light Co. v. Fredericks, 112 Md 449,
77 A 53.
Missouri. D'Arcy v. Catherine
Lead Co., 155 MoApp 260, 133 SW
1191.
New Jersey. It is proper to refuse
request that would need modification
to make it state correct proposition.
Manchester Bldg. & Loan Assn. v.
Allee, 81 NJL 605, 80 A 466.
Texas. Perkins v. State, 65 TexCr
311, 144 SW 241; Mealer v. State, 66
TexCr 140, 145 SW 353.
98 Maryland. Winslow v. Atz, 168
Md 230, 177 A 272.
Utah. The court may properly re-
fuse instruction either too broad or
too restricted though the court
might well have charged on subjects
suggested thereby. Hydraulic Ce-
ment Block Co. v. Christensen, 38
Utah 525, 114 P 524.
Virginia. Keen v. Monroe, 75 Va
424.
99 Federal. Bergera v. United
States, 297 F 102.
Alabama. Alabama State Land
Co. v. Slaton, 120 Ala 259, 24 S 720;
May v. Draper, 214 Ala 324, 107 S
862; Harris v. Wright, 225 Ala 627,
144 S 834; Dunaway v. Roden, 14
AlaApp 501, 71 S 70.
In Britling Cafeteria Co. v. Irwin,
229 Ala 687, 159 S 228, the court
was held to have properly rejected
a charge consisting of quoted por-
tions of the language of the court in
another case.
Arizona. Arizona Eastern R. Co.
v. Bryan, 18 Ariz 106, 157 P 376;
Mutual Benefit Health & Ace. Assn.
v. Neale, 43 Ariz 532, 33 P2d 604.
Arkansas. Russell v. Russell, 123
Ark 619, 185 SW 289.
California. Bellandi v. Park Sani-
tarium Assn., 214 Cal 472, 6 P2d
508; Hart v. Farris, 218 Cal 69, 21
P2d 432, affg. (CalApp), 13 P2d 790;
People v. Wagner, 65 CalApp 704,
225 P 464; Lloyd v. Boulevard Exp.,
79 CalApp 406, 249 P 837; Morris v.
Purity Sausage Co., 2 CalApp2d 536,
38 P2d 193.
Colorado. Ft. Collins v. Smith, 84
Colo 511, 272 P 6.
Connecticut. Stern v. Leopold
Simons & Co., 77 Conn 150', 58 A
696; Johnson v. Connecticut Co., 85
Conn 438, 83 A 530.
Georgia. Thompson v. O'Connor,
115 Ga 120, 41 SE 242; Alabama
Great Southern R. Co. v. Brown, 144
Ga 269, 86 SE 1084; Spillar v. Dick-
son, 148 Ga 90, 95 SE 994; Bank of
Waynesboro v. Ellison, 162 Ga 657,
134 SE 751.
Illinois. Smythe's Estate v. Evans,
209 111 376, 70 NE 906; Kelly v. Chi-
cago City R. Co., 282 111 640, 119 NE
622; Anderson v. Inter-State Busi-
ness Mens Assn., 354 111 538, 18S NE
844.
Indiana. Citizens Tel. Co. v. Ptick-
449
REQUESTS
§157
ett, 189 Ind 141, 125 NE 193; Hew-
lett v. Dilts, 4 IndApp 23, 30 NE
313; Chicago, S. B. & N. I. R. Co. v.
Brown, 81 IndApp 411, 143 NE 609
(use of word "plaintiff" for "de-
fendant")-
Iowa. Stutsman v. Des Moines
City R. Co., 180 la 524, 163 NW 580.
Kansas. Kansas Ins. Co. v. Berry,
8 Kan 159.
Maine. York v. Parker, 109 Me
414, 84 A 939'.
Massachusetts. Twomey v. Linne-
han, 161 Mass 91, 36 NE 590; Rand
v. Farquhar, 226 Mass 91, 115 NE
286.
Michigan. Bedford v. Penny, 58
Mich 424, 25 NW 381; Severson v.
Family Creamery Co., 268 Mich 348,
256 NW 348.
Missouri. Hogan v. Kansas City
Public Service Co., 322 Mo 1103, 19
SW2d 707, 65 ALR 129; McManus
v. Metropolitan St. R. Co., 116 Mo
App 110', 92 SW 176; Sneed v. Shap-
leigh Hdw. Co. (MoApp), 242 SW
6-96; Murray v. Wells (MoApp), 17
SW2d 613.
Montana. Robinson v. F. W. Wool-
worth Co., 80 Mont 431, 261 P 253.
New Jersey. Christy v. New York
Cent. & H. R. R. Co., 90 NJL 540',
101 A 372; Max v. Kahn, 91 NJL
170, 102 A 737; Clayton v. Clayton,
125 NJL 537, 17 A2d 496; Wilson
Transp. Co. v. Owens-Illinois Glass
Co., 125 NJL 636, 17 A2d 581; Ailing
v. Walton, 7 NJMisc 101, 144 A 324;
Tiernan v. B. & S. Motor Service,
Inc., 10 NJMisc 294, 15& A 845.
New Mexico. First Nat. Bank v.
George, 26 NM 176, 190 P 1026.
New York. Wittleder v. Citizens
Elec. Illuminating Co., 47 AppDiv
410, 62 NYS 297.
North Carolina. Vanderbilt v.
Brown, 128 NC 498, 39' SE 36; Har-
ris v. Atlantic Coast Line R. Co.,
132 NC 160, 43 SE 589.
Ohio. Wymer-Harris Constr. Co.
v. Glass, 122 OhSt 398, 171 NE 857,
69 ALR 517; Ford Motor Co. v.
Barry, 30 OhApp 528, 165 NE 865;
Ritter v. Finch, 7 OLA 436.
The trial judge need not give a
special requested instruction unless
it literally states correctly the legal
proposition intended. Gallup v. To-
ledo Terminal R. Co., 26 OhApp 447,
160 NE 493.
Where some special requests to
charge did not state correct prop-
ositions of law applicable to the
facts of the case, and the requests
were not offered as independent
propositions of law, all requests
were properly refused, since they
are to be considered as offered in
a series. Macdonald v. State ex rel.
Fulton, 47 OhApp 223, 191 NE 837,
40 OLR 236.
Oklahoma. Friedman v. Weisz, 8
Okl 392, 58 P 613; Wichita Falls &
N. W. R. Co. v. Puckett, 53 Okl 463,
157 P 112; Siefker v. State, 128 Okl
96, 261 P 211; Chicago, R. I. & P. R.
Co. v. Brooks, 155 Okl 53, 11 P2d
142; Shell Petroleum Corp. v. Wood,
168 Okl 271, 32 P2d 879.
Oregon. Samchuck v. Insurance
Co., 91 Or 692, 179 P 257; Diller v.
Riverview Dairy, 133 Or 442, 288 P
401.
Rhode Island. Perry v. Sheldon,
30 RI 426, 75 A 690.
South Carolina. Earle v. Poat, 63
SC 439, 41 SE 525; Garrison v. Coca
Cola Bottling Co., 174 SC 396, 177
SE 656.
South Dakota. Grant v. Whorton,
28 SD 599, 134 NW 803.
Tennessee. Knoxville v. Cox, 103
Term 368, 53 SW 734; Louisville &
N. R. Co. v. Smith, 123 Tenn 678,
134 SW 866; National Life & Ace.
Ins. Co. v. American Trust Co., 17
TennApp 516, 68 SW2d 971.
Texas. St. Louis Southwestern R.
Co. v. Baer, 39 TexCivApp 16, 86 SW
653; Rishworth v. Moss (TexCiv
App), 191 SW 843.
Utah. Evans v. Oregon Short Line
R. Co., 37 Utah 431, 108 P 638, Ann
Cas 1912C, 259.
Vermont. Amsden v. Atwood, 69
Vt 527, 38 A 263; Needham v. Bos-
ton & M. R. Co., 82 Vt 518, 74 A 226.
Virginia. Peele v. Bright, 119 Va
182, 89 SE 238.
Washington. Howe v. West Seat-
tle Land & Imp. Co., 21 Wash 594,
59 P 495; Nollmeyer v. Tacoma Ry.
§157
INSTRUCTIONS — RULES GOVERNING
450
required to weed out and reject the bad and give only the good
part.1 The request must be correct in all respects.2 The court
may properly refuse an instruction which is merely supple-
mentary to an erroneous request.3
The rules in these matters are the same with respect to in-
structions in criminal cases.4 The court may refuse requests
& Power Co., 95 Wash 595, 164 P
229; Wescott v. Wood, 122 Wash.
596, 212 P 144; Fennel v. Yellow
Cab Co., 138 Wash 198, 224 P 253
(last clear chance doctrine); Jahns
v. Clark, 138 Wash 288, 244 P 729;
Myers v. Newnham, 155 Wash 609,
285 P 663; Colburn v. Great North-
ern R. Co., 166 Wash 200, 6 P2d
635.
West Virginia. The court did not
err in refusing a requested instruc-
tion which was susceptible of an
interpretation that would make it
variant from the law. Cook v. Cole-
man, 90 WVa 748, 111 SE 750.
Wisconsin. Lyle v. McCormick
Harvesting Mach. Co., 108 Wis 81,
84 NW 18, 51 LRA 906.
1 Federal. Miles v. Lavender, 10
F2d 450, affg. 4 F2d 161; American
Surety Co. v. Blount County Bank,
30 F2d 882.
Missouri. But in State v. Fielder,
330 Mo 747, 50 SW2d 1031, it was
held that it was the court's duty to
give an appropriate instruction on
an essential phase of the case,
though the request therefor was not
faultlessly framed.
Oregon. Naftzger v. Henneman,
94 Or 109, 185 P 233.
Texas. Pullman Co. v. Me Go wan
(TexCivApp), 210 SW 842; Wag-
goner v. Zundelowitz (TexComApp),
231 SW 721; Pullman Co. v. Gulf,
C. & S. F. Ry. Co. (TexComApp),
231 SW 741.
Washington. Singer v. Martin, 96
Wash 231, 164 P 1105; Fehler v.
Montesano, 110 Wash 143, 188 P 5;
Bayers v. Barry, 114 Wash 252, 194
P 993; Yenor v. Spokane United
Rys., 143 Wash 541, 255 P 947; Kel-
ley v. Cohen, 152 Wash 1, 277 P 74.
2 Linton v. St. Louis Lightning
Rod Co. (MoApp), 285 SW 183-;
Hotchkiss v. Walter (NJ), 132 A
242.
3 Bloecher & Schaaf v. Pennsyl-
vania R. Co., 162 Md 463, 160 A
281; Weller v. Plapao Laboratories
Incorporation, 197 MoApp 47, 191
SW 1056.
4 Alabama. Alford v. State, 24
AlaApp 418, 136 S 280.
Arkansas. Johnson v. State, 127
Ark 516, 192 SW 895; Atkinson v.
State, 133 Ark 341, 202 SW 709;
Prewitt v. State, 150 Ark 279, 234
SW 35; Clark v. State, 172 Ark 23,
287 SW 765.
California. People v. Wagner, 29
CalApp 363, 155 P 649; People v.
Byler, 35 CalApp 208, 169 P 431;
People v. Wieler, 55 CalApp 687,
204 P 410 (omission of definition of
"wilfully"); People v. Gordon, 78
CalApp 167, 248 P 289; People v. Al-
bori, 97 CalApp 537, 275 P 1017.
District of Columbia. Jackson v.
United States, 48 AppDC 272.
Georgia. Jones v. State, 147 Ga
356, 94 SE 248; Wooten v. State, 23
GaApp 768, 99 SE 316.
Idaho. State v. Dowell, 47 Idaho
457, 276 P 39, 68 ALR 1061.
Illinois. People v. Israel, 269 111
284, 109 NE 969; People v. Stella,
344 111 589', 176 NE 909.
Massachusetts. Commonwealth v.
Perry, 254 Mass 520, 150 NE 854.
Missouri. Viles v. Viles (MoApp),
190 SW 41.
Montana. State v. Groom, 89 Mont
447, 300 P 226.
New Jersey. State v. Reilly, 89
NJL 627, 99 A 329.
New Mexico. State v. Starr, 24
NM 180, 173 P 674; State v. Bailey,
27 NM 145, 198 P 529; State v.
Chaves, 27 NM 504, 202 P 694.
A request may properly be re-
fused if it couples information as
451
REQUESTS
§157
which need qualifications, modification or restriction.5 It has been
said that unless the charge ought to be given in the very terms
requested, it should be refused altogether.6 The trial court is
not under any obligation to rewrite an instruction which either
party requests to be given.7
Where several distinct propositions of law are embodied in
one request and are not offered as separate instructions, the
entire request must fall if one of the propositions is unsound.8
to the statutory penalty with a di-
rection to the jury as to their right
to recommend mercy. State v. Brig-
ance, 31 NM 436, 246 P 897.
North Carolina. State v. Hand,
170 NC 703, 86 SE 1005; State v.
Bailey, 179 NC 724, 102 SE 406;
State v. Kincaid, 183 NC 709, 110
SE 612.
Tennessee. Raine v. State, 143
Term 168, 226 SW 189.
Vermont. State v. Rivers, 84 Vt
154, 78 A 786.
Washington. State v. Patrick, 179
Wash 510, 38 P2d 261 (where the in-
struction requested was incorrect in
part).
"West Virginia. State v. McDonie,
89 WVa 185, 109 SE 710 (inaccurate
definitions).
5 Federal. Watlington v. United
States, 233 P 247; Kreiner v. United
States, 11 F2d 722.
Alabama. Brewer v. State, 15 Ala
App 681, 74 S 764; Love v. State,
17 AlaApp 149, 82 S 639; Warsham
v. State, 17 AlaApp 181, 84 S 885;
Lightfoot v. State, 21 AlaApp 278,
107 S 734, cert. den. in 214 Ala
264, 107 S 735.
California. Dover v. Archam-
heault, 57 CalApp 659, 208 P 178.
Colorado. White v. People, 79
Colo 261, 245 P 349.
District of Columbia. Jackson v.
United States, 48 AppDC 272.
6 State v. Quartier, 118 Or 637,
247 P 783.
7 People v. Andrews, 327 111 162,
158 NE 462; State v. Siers, 103 WVa
30, 136 SE 503.
8 Federal. Sweeney v. Erving,
228 US 233, 57 LEd 815, 33 SupCt
416, AnnCas 1914D, 905; William
H. Rankin Co. v. Associated Bill-
posters, 42 F2d 152; Two Certain
Ford Coupe Automobiles v. United
States, 53 F2d 187; Carpenter v. Con-
necticut General Life Ins. Co., 68
F2d 69 (holding it proper to refuse
a request that could not be given
in the form tendered) ; Fidelity &
Deposit Co. v. Bates, 76 F2d 160.
Alabama. Southern R. Co. v.
Bradford, 145 Ala 684, 40 S 100; Bo-
hanan v. Darden, 7 AlaApp 220, 60
S 955.
California. Wiley v. Young, 178
Cal 681, 174 P 316.
Georgia. Grace v. McKinney, 112
Ga 425, 37 SE 737; Hunt v. Travel-
ers7 Ins. Co., 139 Ga 464, 77 SE 375;
Western Union Tel. Co. v. Owens,
23 GaApp 169, 98 SE 116; New York
Life Ins. Co. v. Thompson, 50 GaApp
413, 178 SE 389.
Illinois. Nelson v. Fehd, 203 111
120, 67 NE 828.
Kansas. Auwarter v. Kansas
City, 136 Kan 571, 16 P2d 547.
Maryland. Sline & Sons v. Hoop-
er, 164 Md 244, 164 A 548.
Massachusetts. Schusterman v.
Rosen, 280 Mass 582, 183 NE 414.
Michigan. Bedford v. Penny, 58
Mich 424, 25 NW 381.
Minnesota. Gross v. General Inv.
Co., 194 Minn 23, 259 NW 557.
Missouri. McCarthy v. Sheridan,
336 Mo 1201, 83 SW2d 907; Hower-
ton v. Iowa State Ins. Co., 105 Mo
App 575, 80 SW 27.
Montana. In re Carroll's Estate,
59 Mont 403, 196 P 996.
New Jersey. Schreiber v. Public
Service R. Co., 89 NJL 183, 98 A
316; Miller v. I. P. Thomas & Son
Co., 89 NJL 364, 98 A 193; Geiger
Sons v. Edward M. Waldron, Inc.,
100 NJL 93, 125 A 18.
§157
INSTRUCTIONS — RULES GOVERNING
452
To avoid this result, the request should state that "such in-
structions to be given severally, and not as series/' This is the
rule in criminal as well as in civil cases.9
In both criminal and civil cases, the rule in many jurisdic-
tions is that where the erroneous requested instruction calls the
attention of the court to an essential omission in his charge, the
court should give a correct instruction.10
Ohio. Ford Motor Co. v. Barry,
30 OhApp 528, 165 NE 865; Holmes
v. Ashtabula Rapid Transit Co., 10
OhCirDec 638; Pugh v. Akron-Chi-
cago Transp. Co., Inc., 64 OhApp
479, 28 NE2d 1015 [affirmed, 137
OhSt 164, 28 NE2d 501].
Pennsylvania. Seifred v. Pennsyl-
vania R. Co., 206 Pa 399, 55 A 1061.
South Carolina. McGee v. Wells,
52 SC 472, 30 SE 602.
Tennessee. Provident Life & Ace.
Ins. Co. v. Campbell, 18 TennApp
452, 79 SW2d 292.
Texas. Western Union Tel. Co.
v. McConnico, 27 TexCivApp 610',
66 SW 592; Merchants' Ice Co. v.
Scott & Dodson (TexCivApp), 186
SW 418; Moore v. Davis (TexCiv
App), 16 SW2d 380.
The general rule in Texas is that
where the charge asked consists of
several separate subdivisions, de-
fining as many distinct and sup-
posed necessary conditions of fact to
be found by the jury, and one of
such subdivisions is not the law as
applied to the facts, the court may
eliminate such subdivision and give
the special charge so modified, and
the same will not be reversible er-
ror, but the court is not required
to make this modification. Grigsby
v. Reib (TexCivApp), 139 SW 1027.
Washington. Amann v. Tacoma,
170 Wash 296, 16 P2d 601.
d Alabama. Howard v. State, 165
Ala 18, 50 S 954; Burk v. State, 16
AlaApp 110, 75 S 702; Mancill v.
State, 16 AlaApp 113, 75 S 705.
California. People v. Metzler, 21
CalApp 80, 130 P 1192.
Florida. Gorey v. State, 71 Fla
195, 71 S 328.
Georgia. Woodard v. State, 18
GaApp 59, 88 SE 825; May v. State,
24 GaApp 379, 100 SE 797.
Indiana. Ruse v. State, 186 Ind
237, 115 NE 778, LRA 1917E, 726;
Spurlin v. State, 189 Ind 273, 124
NE 753; Schaffer v. State, 202 Ind
318, 173 NE 229.
Louisiana. State v. Lee, 180 La
494, 156 S 801.
Missouri. Contra: State v, Law-
rence (Mo), 71 SW2d 740.
New Mexico. State v. Mersfelder,
34 NM 465, 284 P 113.
Ohio. Bandy v. State, 13 OhApp
461, 32 OCA 360.
Texas. Berry v. State, 80 TexCr
87, 188 SW 997; Plenums v. State,
127 TexCr 141, 74 SW2d 1009.
1 ° Federal. Armstrong v. United
States, 41 F2d 162; Freihage v.
United States, 56 F2d 127.
Arizona. City of Globe v. Rabog-
liatti, 24 Ariz 392, 210' P 685.
California. See People v. Mock
Ming Fat, 82 CalApp 618, 256 P
270.
Iowa. Kinyon v. Chicago & N. W.
Ry. Co., 118 la 349, 92 NW 40, 96
AmSt 382.
Kentucky. Stearns Coal & Lbr.
Co. v. Williams, 171 Ky 46, 186 SW
931; Cumberland R. Co. v. Girdner,
174 Ky 761, 192 SW 873; Stearns
Coal & Lbr. Co. v. Spradlin, 176 Ky
405, 19-5 SW 781; Louisville & N. R.
Co. v. McCoy, 177 Ky 415, 197 SW
801; Louisville & N. R. Co. v.
Stephens, 188 Ky 1, 220 SW 746;
Louisville Gas & Elec. Co. v. Beau-
cond, 188 Ky 725, 224 SW 179;
Louisville & N. R. Co. v. Craft, 192
Ky 314, 233 SW 741; Berea Bank
& Trust Co. v. Mokwa, 194 Ky 556,
239 SW 1044; Jefferson's Adm'x. v.
Baker, 232 Ky 98, 22 SW2d 448;
Springfield Fire & Marine Ins. Co.
v. Ramey, 245 Ky 367, 53 SW2d 560.
453
REQUESTS
§158
§ 158. Refused instructions in civil cases substantially covered
by other instructions given.
It is not reversible error in a civil case to refuse a correct
requested instruction where the substance thereof is correctly,
substantially, and fairly covered by the general charge of the
court or by the requested instructions of either party given by
the court.
The rule as stated is supported by the cases in numerous
jurisdictions. ' l Such refusal is justified because repeating in-
If the instructions tendered are
defective, it is the duty of the court
to prepare proper charges. Louis-
ville Cemetery Assn. v. Downs, 241
Ky 773, 45 SW2d 5.
Massachusetts. Black v. Bucking-
ham, 174 Mass 102, 54 NE 494.
Missouri. State v. Goode (Mo),
220 SW 854; State v. Singleton
(Mo), 77 SW2d 80.
Nebraska. Pospisil v. Acton, 118
Neb 200, 224 NW 11.
New Hampshire. Burke v. Bos-
ton & M. R. R., 82 NH 350, 134 A
574.
New Mexico. See State v. Wil-
liams, 39 NM 165, 42 P2d 1111.
North Carolina. See Groome v.
Statesville, 207 NC 538, 177 SE 638.
Oklahoma. Thomas v. State, 13
OklCr 414, 164 P 995.
Oregon. Sorensen v. Kribs, 82 Or
130, 161 P 405.
Texas. Roberts v. Houston Motor
Car Co. (TexCivApp), 188 SW 257;
McNabb v. McNabb (TexCivApp),
207 SW 129; Chicago, R. I. & G. Ry.
Co. v. Wentzel (TexCivApp), 214
SW 710; Hines v. Parry (TexCiv
App), 227 SW 339; Western Union
Tel. Co. v. Coleman (TexCivApp),
284 SW 279; Kansas City, M. & 0.
Ry. Co. v. Rochester Independent
School Dist. (TexCivApp), 292 SW
964; St. Louis, S. F. & T. Ry. Co. v.
Houze (TexCivApp), 28 SW2d 865;
Silva v. State, 102 TexCr 415, 278
SW 216.
Utah. Smith v. Lenzi, 74 Utah
362, 279 P 893.
Virginia. Hatton v. Mbuntford,
105 Va 96, 52 SE 847.
West Virginia. State v. Brown,
107 WVa 60, 146 SE 887.
Wisconsin. Montgomery v. State,
128 Wis 183, 107 NW 14.
1 ' Federal. Erie R. Co. v. Kazan-
ecki, 10 F2d 337; American Creo-
sote Works, Inc. v. Wren, 13 F2d
991; Mason & Hanger Co. v. Bur-
nam, 36 F2d 330; Louisiana Oil Ref.
Corp. v. Reed, 38 F2d 159; Gaillard
v. Boynton, 70 F2d 552.
Alabama. Stuart v. Mitchum, 15
Ala 546, 33 S 670; Welch v. Evans
Bros. Constr. Co., 201 Ala 496, 78
5 850; Southern R. Co. v. Cates,
211 Ala 282, 100 S 356; Rowe v.
Johnson, 214 Ala 510, 108 S 604.
Arkansas, Western Coal & Min.
Co. v. Jones, 75 Ark 76, 87 SW 440.
California. Cook v. Los Angeles
6 P. Elec. Ry. Co., 134 Cal 279, 66
P 306; Sickles v. Mt. Whitney Power
& Elec. Co., 177 Cal 278, 170 P
599; Baldwin v. Pacific Elec. R. Co.,
208 Cal 364, 281 P 380 (duty to il-
luminate crossing) ; Loper v. Mor-
rison, 23 Cal2d 600, 145 P2d 1;
Zuckerman v. Underwriters at
Lloyd's, London, 42 Cal2d 460, 267
P2d 777; Juchert v. Tenent, 126
CalA^pp 216, 14 P2d 617 (credibility
of witness) ; Johnson v. Johnson, 137
CalApp 701, 31 P2d 237.
If in the main charge the court
does not tell the jury that the doc-
trine of res ipsa loquitur changes
the burden of proof, it is not error
to refuse a request to charge that
such doctrine does not change the
burden of proof. Timbrell v. Sub-
urban Hosp., 4 Cal2d 68, 47 P2d 737.
Request as to duty of automobile
driver toward pedestrian was cov-
ered in other instructions. Morris
v. Purity Sausage Co., 2 CalApp2d
536, 38 P2d 193.
§158
INSTRUCTIONS — RULES GOVERNING
454
Colorado, Denver ConsoL Elee.
Co. v. Lawrence, 31 Colo 301, 73 P
39; Commercial Credit Co. v. Cal-
kins, 78 Colo 257, 241 F 529; Jen-
nings v. Board of County Comrs.,
85 Colo 498, 277 P 467; Frosh v.
Sun Drag Co., 91 Colo 440, 16 P2d
428.
Connecticut. Tiesler v. Norwich,
73 Conn 199, 47 A 161; McGarry v.
Healey, 78 Conn 365, 62 A 671; Kuc-
zon v. Tomkievicz, 100 Conn 560,
124 A 226; Spicer v. Hincks, 113
Conn 366, 155 A 508, 76 ALR 1519.
Burden of proof as to contributory
evidence was covered by charge that
the burden was on the defendant and
that it must be met by a fair pre-
ponderance of the evidence. Piascik
v. Railway Exp. Agency, 119 Conn
277, 175 A 919.
District of Columbia. Washing-
ton, A. & Mt. V. Ry. Co. v. Lukens,
32 AppDC 442; Madison v. White, 60
AppDC 329, 54 F2d 440.
Florida. Maultsby v. Boulware,
47 Fla 194, 36 S 713.
Georgia. Macon Ry. & Light Co.
v. Barnes, 121 Ga 443, 49 SE 282;
Southern Cotton Oil Co. v. Skipper,
125 Ga 368, 54 SE 110.
Idaho. North v. Woodland, 12 Ida-
ho 50, 85 P 215, 6 LRA (N. S.) 921;
Baggett v. Pace, 51 Idaho 694, 10
P2d 301; French v. Tebben, 53 Ida-
ho 701, 27 P2d 475.
Principles governing assumption
of risk were covered by charge that
party must have used ordinary care
to discover extraordinary danger.
Roy v. Oregon Short Line R. Co.,
55 Idaho 404, 42 P2d 476.
Illinois. Inlet Swamp Drainage
Dist. v. Anderson, 257 111 214, 100
NE 909; Shutt Imp. Co. v. Thomp-
son, 109 IllApp 540; Gordon v. Cur-
rent, 263 IllApp 435; Trust Co. v.
Cummings, 320 IllApp 437, 51 NE2d
616; Elmore v. Cummings, 321 111
App 234, 52 NE2d 827; Pittman v.
Duggan, 336 IllApp 502, 84 NE2d
701.
Indiana. Tucker v. Call, 45 Ind
31; Heltonville Mfg. Co. v. Fields,
138 Ind 58, 36 NE 529; Koplovitz
v. Jensen, 197 Ind 475, 151 NE 390;
Taylor v. Fitzpatrick, 235 Ind 238,
132 NE2d 919; Chesapeake & 0. R.
Co. v. Perry, 66 IndApp 532, 118
NE 548; Supreme Tribe of Ben Hur
v. Bastian, 85 IndApp 327, 151 NE
346; Jewett v. Farlow, 88 IndApp
301, 157 NE 458, 158 NE 489; West-
ern & Southern Life Ins. Co. v. Ross,
91 IndApp 552, 171 NE 212; Beard
v. Ball, 96 IndApp 156, 182 NE 102;
Marshall v. Temperley, 100 IndApp
131, 192 NE 106; Stull v. Davidson,
125 IndApp 565, 127 NE2d 130; Lig-
gett & Meyer Tobacco Co., Inc. v.
Meyer (IndApp), 194 NE, 206; Oak-
town Tel. Co. v. Miller (IndApp),
194 NE 741.
Requested charge as to mono-
mania in will contest was covered
in other instructions. Curnick v.
Torbert (IndApp), 194 NE 771.
Iowa. Thompson v. National Ca-
ble & Mfg. Co., 160 la 403, 141 NW
912; Lemon v. Kessel, 202 la 273,
209 NW 393; Orr v. Hart, 219 la
408, 258 NW 84; Davidson v. Vast,
233 la 534, 10 NW2d 12; Steen v.
Hunt, 234 la 38, 11 NW2d 690; Dun-
canson v. Fort Dodge, 233 la 1325,
11 NW2d 583.
Kansas. Evans v. Lafeyth, 29 Kan
736; Chicago, R. I. & P. Ry. Co. v.
Parks, 59 Kan 709, 54 P 1052.
Kentucky. Bonte v. Postell, 109
Ky 64, 58 SW 536, 51 LRA 187;
Burgauer v. MeClellan, 205 Ky 51,
265 SW 439; Bean's Adm'r v. Bean,
216 Ky 95, 287 SW 239; Globe &
Rutgers Fire Ins. Co. v. Frankfort
Distillery, 226 Ky 706, 11 SW2d 968;
Louisville & N. R. Co. v. Vandiver,
238 Ky 846, 38 SW2d 965; Phillips'
Committee v. Ward's Adm'r, 241 Ky
25, 43 SW2d 331; Tevis v. Carter,
28 KyL 749; 90 SW 264.
Maine. Bernard v. Merrill, 91 Me
358, 40 A 136; Labrecque v. Catho-
lic Order of Foresters, 119 Me 190,
110 A 194; Pratt v. Cloutier, 119
Me 203, 110 A 353, 10 ALR 1434.
Maryland. McCarty v. Harris, 93
Md 741, 49 A 414; Steinberg v. Pull-
man Co., 156 Md 329, 144 A 363.
Massachusetts. Thayer v. Old
455
REQUESTS
§158
Colony St. Ry. Co., 214 Mass 234,
101 NE 368, 44 LRA (N. S.) 1125,
AnnCas 1914B, 865; Coyne v. Ma-
niatty, 235 Mass 181, 126 NE 377;
Fitzmaurice v. Boston, B. B. & L.
E. Co., 256 Mass 217, 152 NE 239;
Coates v. Bates, 265 Mass 444, 164
NE 448 (right to carry luggage
projecting from automobile) ; Searls
v. Loring, 275 Mass 403, 176 NE
212; Isaacson v. Boston, W. & N. Y.
St. R. Co., 278 Mass 378, 180 NE
118; Lopardi v. John Hancock Mut,
Life Ins. Co., 289 Mass 492, 194 NE
706.
Michigan. Hurd v. Newton, 36
Mich 35; Alton v. Meenwenberg, 108
Mich 629, 66 NW 571; Kasprzak v.
Chapman, 197 Mich 552, 164 NW
258; Louthain v. Hesse, 234 Mich
693, 209 NW 138; Andrews v. Mur-
phy, 235 Mich 236, 209 NW 63;
Miller v. Beasley, 255 Mich 15, 237
NW 47; Essenberg v. Achterhof, 255
Mich 55, 237 NW 43; Bunker v.
Reid, 255 Mich 536, 238 NW 265
(duty of drivers of automobiles en-
tering street intersections).
Minnesota. Moratzky v. Wirth,
74 Minn 146, 76 NW 10-32; Quinn
v. Zimmer, 184 Minn 589, 239 N"$"
902; Markle v. Haase, 245 Minn 520,
73 NW2d 362.
Mississippi. Mississippi Cent. R.
Co. v. Hardy, 88 Miss 732, 41 S 505.
Missouri. Bradley v. West, 60
Mo 59; Tyler v. Hall, 106 Mo 313,
17 SW 319, 27 AmSt 337; Gorman
v. St. Louis Merchants' Bridge Ter-
minal R. Co., 325 Mo 326, 28 SW2d
1023; Becker v. Federal Garage Co.
(Mo), 38 SW2d 473.
Montana. McCrimmon v. Murray,
43 Mont 45-7, 117 P 73; Currie v.
Langston, 92 Mont 570', 16 P2d 708.
Nebraska. Bryant v. Cunning-
ham, 52 Neb 717, 72 NW 1054
New Hampshire. Bond v. Bean,
72 NH 444, 57 A 340, 101 AmSt
686; Smith v. Boston & M. R. R.3 87
NH 246, 177 A 729; Walsh v. Public
Service Co., 92 NH 331, 30 A2d
494; Lynch v. L. B. Sprague, Inc.,
95 NH 485, 66 A2d 697.
New Jersey. Ghristensen v. Lam-
bert, 67 NJL 341, 51 A 702; Schomer
v. Hoffman, 102 NJL 347, 131 A 919;
Meckert v. Prudential Ins. Co., 114
NJL 320, 176 A 587 (charge on pre-
sumption of death from absence for
statutory period, where same mat-
ter substantially covered by other
instructions); Gribbin v. Fox, 130
NJL 357, 32 A2d 853; Zito v. Inger-
soll, 7 NJMisc 893, 147 A 400 (as-
sumption of risk by guest in auto-
mobile) ; Putkowski v. Jarmoli, 9 NJ
Misc 1189, 157 A 107.
New Mexico. Pearce v. Strickler,
9 NM 467, 54 P 748; State v. Abeyta,
30 NM 59, 227 P 756.
New York. Lawson v. Metropoli-
tan St. Ry. Co., 166 NY 589, 59 NE
1124; Ronimeney v. New York, 49
AppDiv 64, 63 NTS 186; Kennell v.
Eider, 225 AppDiv 391, 233 NYS
252; Samuel v. Manrith Realty
Corp., 243 AppDiv 552, 275 NYS
892.
North Carolina. Harris v. Atlan-
tic Coast Line R. Co., 132 NC 160,
43 SW 598; Hall v. GeisseU, 179 NC
657, 103 SE 392.
North Dakota. Donahue v. Nolti-
mier, 61 ND 735, 240 NW 862.
Ohio. Refusal to give a proper
special charge, not duly requested
to be given before argument, is not
error if the substance thereof is
given in other requested instructions
or in the general charge. Rhein-
heimer v. Aetna Life Ins. Co., 77
OhSt 360, 83 NE 491, 15 LRA (N.
S.) 245. See also Wellston Coal Co.
v. Smith, 65 OhSt 70', 61 NE 143, 55
LRA 99, 87 AmSt 547; State ex rel.
Lattanner v. Hills, 94 OhSt 171, 113
NE 1045, LRA 1917B, 684; Bartson
v. Craig, 121 OhSt 371, 169 NE
291.
Refusal to give proper special
charge, duly presented and requested
to be given before argument, is not
prejudicial error if the substance
thereof is fully embodied in another
special charge requested by the same
party and given before argument.
Limbaugh v. Western Ohio R. Co.,
94 OhSt 12, 113 NE 687. See also
Schweinfurth v. Cleveland, C., C. &
§158
INSTRUCTIONS — RULES GOVERNING
456
St. L. Ry. Co., 60 OhSt 215, 54 NE
89; Gibbs v. Scioto Valley Ry. &
Power Co., Ill OhSt 49&, 145 NE
854; Netzel v. Todd, 30' OhApp 300,
165 NE 47.
Refusal to give before argument a
proper special charge, duly present-
ed and requested to be given before
argument, is error, though, the court
fully covers the subject (1) in the
court's own special charge given,
without request, before argument,
or (2) in the court's general charge
after argument. Premier Service
Co. v. Sefton, 31 OhApp 154, 166
NE 140. See also Gray v. Gordon,
96 OhSt 490, 117 NE 891; Niemes
v. Niemes, 97 OhSt 145, 119 NE
503; Lima Used Car Exch. Co. v.
Hemperly, 120 OhSt 400, 166 NE
364; Shellock v. Klempay Bros., 167
OhSt 279, 148 NE2d 57; Smith v.
Torbett (OhApp), 142 NE2d 868.
Oklahoma. St. Louis & S. F. R.
Co. v. Walker, 31 Okl 494, 122 P
492; Drumright State Bank v.
Westerheide, 124 Okl 108, 254 P 80;
Keys v. Border, 135 Okl 249, 274
P 1082; Cushing Ref. & Gasoline
Co. v. Deshan, 149 Okl 225, 300 P
312; Keen Bottling Co. v. Morgan,
154 Okl 167, 7 P2d 147; Enid Trans-
fer & Storage Co. v. Fisher, 169
Okl 484, 37 P2d 825; Stroud v.
Temp-kins, 193 Okl 483, 145 P2d
396; Garrett v. Kennedy, 193 Okl
605, 145 P2d 407; Farmers' Union
Co-op Gin Co. v. Squyres, 193 Okl
578, 145 P2d 949; Moore v. Cason
Bros. (Okl), 212 P2d 460.
Oregon. Pacific Export Co. v.
North Pacific Lbr. Co., 46 Or 194,
80 P 105; Agee v. Chapin, 128 Or
526, 274 P 1097 (request to instruct
that violation of law was negli-
gence); Parish v. Columbia Nat.
Bank, 139 Or 126, & P2d 584; Heider
v. Barendrick, 149 Or 220, 39 P2d
957.
Pennsylvania. Carey v. Buckley,
192 Pa 276, 43 A 1019; Fleming v.
Dixon, 194 Pa 67, 44 A 1064.
Rhode Island. McGowan v. Pro-
bate Court of Newport, 27 RI 394,
62 A 571, 114 AmSt 5-2.
South Carolina. Banks v. South-
ern Exp. Co., 73 SC 211, 53 SE 166.
South Dakota. Blair v. Groton,
13 SD 211, 83 NW 48.
Tennessee. Record v. Chickasaw
Cooperage Co., 108 Tenn 657, 69 SW
334; National Life & Ace. Ins. Co.
v. Turner, 159 Tenn 130, 17 SW2d
13; Bourne v. Barlar, 17 TennApp
375, 67 SW2d 751; Tennessee Coach
Co. v. Young, 18 TennApp 592, 80-
SW2d 107.
Texas. St. Louis Southwestern R.
Co. v. Burke, 36 TexCivApp 222,
81 SW 774; San Antonio & A. P.
R. Co. v. Dickson, 42 TexCivApp
163, 93 SW 481; North Fort Worth
Townsite Co. v. Taylor (TexCiv
App), 262 SW 505; Custer v. Thax-
ton (TexCivApp), 287 SW 528;
Texas & P. Ry. Co. v. Aaron (Tex
CivApp), 19 SW2d 930 (contribu-
tory negligence).
Utah. Holland v. Oregon Short
Line R. Co., 26 Utah 209, 72 P 940;
Hirabelli v. Daniels, 40 Utah 513,
121 P 966; Barry v. Los Angeles
& S. L. R. Co., 56 Utah 69, 189 P
70; Cowan v. Salt Lake & U. R. Co.,
§6 Utah 94, 189 P 599; Miller v.
New York Life Ins. Co., 84 Utah
539, 37 P2d 547.
Vermont. Kilpatrick v. Grand
Trunk Ry. Co., 74 Vt 288, 52 A 531,
93- AmSt 887.
Virginia. Richmond Trac. Co. v.
Wilkinson, 101 Va 394, 43 SE 622;
Richmond v. Wright, 151 Va 964,
145 SE 732.
Washington. Morrison v. North-
ern Pacific Ry. Co., 34 Wash 70, 74
P 1064; Lindsey v. Elkins, 154 Wash
588, 283 P 447; Settles v. Johnson,
165 Wash 466, 298 P 690; Milne v.
Seattle, 20 Wash2d 30, 145 P2d
888; McCall v. Washington Co-op.
Farmers Assn., 35 Wash2d 337, 212
P2d 813.
West Virginia. Maxwell v. Cun-
ningham, 50 WVa 298, 40 SE 499;
Gilmore v. Montgomery Ward & Co.,
133 WVa 342, 56 SE2d 105. See
also, to the same effect, Somerville
v. Dellosa, 133 WVa 435, 56 SE2d
756.
457
BEQUESTS
§158
structions would have a tendency to mislead the jury.12 There
would obviously be no prejudicial error if the refused request is
less favorable than the instructions given by the court.13
Where the matter is sufficiently covered, the request is
properly refused if it is no more than an elaboration of the points
of the main charge,14 or its statement in a converse form,15
or involves no more than the use of different expressions of
equivalent meaning. ' 6
Wisconsin. Kenyon v. Mondovi,
98 Wis 50, 73 NW 314; Behl v.
Schuett, 104 Wis 76, 80 NW 73;
Warden v. Miller, 112 Wis 67, 87
NW 828.; Hem v. Mildebrandt, 134
Wis 582, 115 NW 121.
Wyoming1. Mutual Life Ins. Co.
v. Summers, 19 Wyo 441, 120 P 185.
1 2 Alabama. Birmingham v. Hen-
derson, 26 AlaApp 389, 160 S 778.
Arkansas. Nixon v. Fulkerson,
128 Ark 172, 193 SW 500.
Iowa. Jordan v. Hill, 172 la 414,
154 NW 579.
Rhode Island. Melone v. Rhode
Island Co, (RI), 112 A 426.
1 3 Alabama. Southern Ry. Co. v.
Pruett, 200 Ala 675, 77 S 49.
Kansas. Refusal was proper where
the subject was more adequately
treated in instruction given than in
instruction offered. Bilderback v.
Clark, 106 Kan 737, 189 P 977, 9
ALR 1622.
Montana. Simpson v. Miller, 97
Mont 328, 34 P2d 528.
1 4 Federal. Kimble v. Kiser, 59
F2d 626.
Illinois. Gamble v. Hayes Trans-
fer & Storage Co., 278 IllApp 365.
Kentucky. McGeough v. Lewis,
245 Ky 363, 53 SW2d 544 (contribu-
tory negligence).
Michigan. Gray v. Briggs, 259
Mich 440, 243 NW 254 (duty to
mitigate damages).
Nebraska. Blackwell v. Omaha
Athletic Club, 123 Neb 332, 242 NW
664.
Oklahoma. Rock Island Coal Min.
Co. v. Toleikis, 67 Okl 299, 171 P
17.
Virginia. Nelson County v. Lov-
ing, 126 Va 283, 101 SE 406.
Washington. Phoenix Assur. Co.
v. Columbia & P. S. R. R., 92 Wash
419, 159 P 369; Smith v. Harrington,
93 Wash 681, 161 P 465,
Wisconsin. Vaningan v. Mueller,
208 Wis 542, 243 NW 424.
15 South Covington & C. St. R.
Co. v. Miller, 176 Ky 701, 197 SW
403; Aetna Life Ins. Co. v. Mc-
Cullagh, 185 Ky 664, 215 SW 821.
16 Federal. DeSoto Motor Corp.
v. Stewart, 62 F2d 914.
California. Anderson v. Southern
Pacific Co., 129 CalApp 206, 18 P2d
703.
Colorado. Parris v. Jaquith, 70
Colo 63, 197 P 750.
Connecticut. Tefft v. New York,
N. H. & H. R. Co., 116 Conn 127,
163 A 762.
Idaho. McCoy v. Krengel, 52 Ida-
ho 626, 17 P2d 547.
Illinois. Wintersteen v. National
Cooperage & Woodenware Co., 361
111 95, 197 NE 578; Bunch v. Mc-
Allister, 266 IllApp 248.
Indiana. J. F. Barniody Co. v.
Reed, 60 IndApp 662, 111 NE 317;
Pennsylvania R. Co. v. Boyd, 98 Ind
App 439, 185 NE 160.
Kentucky. Western Automobile
Casualty Co. v. Lee, 246 Ky 364,
55 SW2d 1; Louisville Ry. Co. v.
Breeden, 257 Ky 95, 77 SW2d 368.
New Jersey. Neipert v. Yellow
Cab Co., 110 NJL 351, 164 A 452.
Oregon. Johnson v. Roberts Bros.,
151 Or 311, 49 P2d 455.
Texas. Galveston, H. & S. A. Ry.
Co. v. Miller (TexCivApp), 192 SW
593.
Washington. Colvin v. Simonson,
170 Wash 341, 16 P2d 830.
§ 158 INSTRUCTIONS — RULES GOVERNING 458
It matters not that the main charge is oral in a jurisdiction
allowing oral charges, if it covers the point of the written
request17
The court properly refuses request on the subject of defini-
tions sufficiently covered by the charge.18
So, in an action brought by a physician to recover on quantum
meruit for professional services, an instruction that the plaintiff
was not barred from recovering a larger sum by reason of having
originally presented his bill for fifty dollars was rendered unnec-
essary by an instruction to award such amount, not in excess
of one hundred dollars, as the services were shown by the
evidence to be worth. 1 9
Where the jury are informed, in an action for personal in-
juries, that if plaintiff was negligent he could not recover, it is
sufficient to cover this phase of the case and there is no error
in refusing to instruct that if both plaintiff and defendant were
negligent, then plaintiff was not entitled to recover.20 In an
action against a dentist for malpractice, where the general charge
had fairly covered the case, it was not error to refuse to charge
that the injury from tooth extraction was no evidence of the
dentist's negligence.2 J
In a collision case, where the complaint asked for compensa-
tory damages only, as to which the court had properly charged
the jury, it was not error to refuse a charge relating to
exemplary damages.22
17 Hood & Wheeler Furn. Co. v. 487 (assumption of risk); Boeck-
Royal, 200 Ala 607, 76 S 965 ; Ala- maim v. Valier & Spies Milling Co.
bama Packing Co. v. Smith, 203 Ala (MoApp), 199 SW 457 (ordinary
679, 85 S 19; Payne v. Smitherman, care); Lord v. Austin (MoApp), 39
206 Ala 591, 91 S 575; Vann v. SW2d 575 (negligence and degree
State, 207 Ala 152, 92 S 182; "Sea- of care).
board Air Line R. Co. v. McPry, Oregon. Brown v. O'Flynn, 127
221 Ala 296, 128 S 239; Crawley v. Or 497, 272 P 673 (proximate
State, 16 AlaApp 545, 79 S 804; cause).
Hines v. McMillan, 17 AlaApp 509, Yermont. Buprat v. Chesmore,
87 S 696; Birmingham Iron & Dev. 94 Vt 218, 110 A 305 (proximate
Co. v. Hood, 19 AlaApp 4, 94 S 835. cause).
1 8 Alabama. West v. Arrington, Washington. Comfort v. Penner,
200 Ala 420, 76 S 352 (mental ca- 166 Wash 177, 6 P2d 604 (proximate
pacity) . cause) .
California. Abbott v. Cavalli, 114 ' 9 Ladd v. Witte, 116 Wis 35, 92
CalApp 379, 300 P 67 (gross negli- NW 365.
gence) . 2O St. Louis Southwestern Ry. Co.
Kentucky. Aetna Life Ins. Co. v. v Byers (TexCivApp), 70 SW 558.
McCullagh, 185 Ky 664, 215 SW 821 2I Francis v. Brooks, 24 OhApp
(habit). 136, 156 NE 609.
Missouri. Evans v. General Ex- 22 Armstrong v. Dav, 10'3 CalApp
plosives Co., 293 Mo 364, 239 SW 465, 284 P 1083.
459
REQUESTS
§159
But in a collision action where the court had instructed that
the driver on the left must yield to the driver on the right
if a collision was "imminent," it was held error to refuse a
request to charge that the driver on the left must yield if the
collision was reasonably to be "apprehended."23 In an action
on an insurance policy it was error to deny a request to charge
that plaintiff was required to prove his right of recovery by a
preponderance of the evidence.24 A request for a charge as to
what constitutes reasonable time should be given if not already
covered by other instructions.28
§ 159. Refused instruct ions in criminal cases substantially
covered by other instructions given,
It is not reversible error in a criminal case to refuse a cor-
rect requested instruction if it is substantially covered by the
general charge or by the requested instructions of either party
given by the court.
The judge is not required to give a requested instruction,
even though correct, if the matter is substantially covered by
any other instruction given.26 And, of course, if not substantially
covered, then the requested instruction should be given.27
23 Collins v. Liddle, 67 Utah 242,
247 P 476.
24 Union Indemnity Co., Inc. v.
S. N. Kleier Co., Inc., 34 F2d 738.
25 Janus v. United States ex rel.
Humphrey, 38 F2d 431, revg. 30
F2d 530.
26 Federal. Holt v. United States,
218 US 245, 54 LEd 1021, 31 SupCt
2, 20 AnnCas 1138; Bennett v.
United States, 227 US 333, 57 LEd
531, 33 SupCt 288; Wuichet v.
United States, 8 F2d 561; Russell v.
United States, 12 F2d 683; Kerche-
val v. United States, 12 F2d 904;
Tyson v. United States, 54 F2d 26;
Addis v. United States, 62 F2d 329;
Richards v. United States, 63 F2d
338.
Alabama. Powe v. State, 214 Ala
91, 106 S 503; Hyde v. State, 230
Ala 243, 160 S 237; Sills v. State,
2 AlaApp 73, 57 S 89.
Arizona. Hurley v. Territory, 13
Ariz 2, 108 P 222.
Arkansas. Williams v. State, 100
Ark 218, 139 SW 1119.
California. People v. Hall, 220
Cal 166, 30 P2d 23, 996; People v.
Latona, 2 Cal2d 714, 43 P2d 260;
People Y. Crosby, 17 CalApp 518,
120 P 441; People v. Foster, 117
CalApp 439, 4 P2d 173; People v.
White, 137 CalApp 467, 30 P2d 555;
People v. Raucho (CalApp), 47 P2d
1108; People v. Todd, 9 CalApp2d
237, 49 P2d 611; People v. Groves,
9 CalApp2d 317, 49 P2d 888, 50 P2d
813.
Colorado. Ryan v. People, 50 Colo
99, 114 P 306, AnnCas 1912B, 1232;
Roll v. People, 78 Colo 589, 243 P
641; Windolph v. People, 96 Colo
285, 42 P2d 197.
Connecticut. State v. Burns, 82
Conn 213, 72 A 1083, 16 AnnCas
465.
District of Columbia. De Camp v.
United States, 56 AppDC 119, 10
F2d 984.
Florida. Gilbert v. State, 61 Fla
25, 55 S 464; Crosby v. State, 90
Fla 381, 106 S 741.
Illinois. People v. Weil, 244 111
176, 91 NE 112; People v. Kaswick,
319 111 306, 150 NE 16; People v.
Vozel, 346 111 209, 178 NE 473; Peo-
ple v, Resnick, 348 111 544, 181 NE
159
INSTRUCTIONS — RULES GOVERNING
460
415; People v. Gibbs, 349 III 83, 181
NE 628 (defense of habitation) ;
People v. Buzan, 351 111 610, 184 NE
890; People v. Anderson, 355 111
289, 189 NE 338.
Indiana. Malone v. State, 176 Ind
338, 96 NE 1; Blackburn v. State,
203 Ind 332, 180 NE 180; Daveros
v. State, 204 Ind 604, 185 NE 443;
Hamilton v. State, 205 Ind 26, 184
NE 170; Kleihege v. State, 206 Ind
206, 188 NE 786; Yoder v. State,
208 Ind 50, 194 NE 645; Souther-
land v. State, 209 Ind 308, 197 ^NE
841 (language of instruction given
was practically the same as language
of requested instruction) ; Flowers v.
State, 236 Ind 151, 139 NE2d 185.
In Beneks v. State, 208 Ind 317,
196 NE 73, it was held to be im-
material that the requested instruc-
tion was a correct statement of the
law, since the substance was in-
cluded in the charge given.
If one or more of the essential
elements of the crime charged be
omitted from an instruction, such in-
struction must be withdrawn before
the error is cured by the giving of
a correct instruction thereon. Kirk
v. State, 207 Ind 623, 194 NE 349.
Iowa. State v. Becker, 159 la 72,
140 NW 201.
Kentucky. International Harves-
ter Co. v. Commonwealth, 147 Ky
564, 144 SW 1064; Warford v. Com-
monwealth, 213 Ky 675, 281 SW 819.
Louisiana. State v. Williams, 129
La 795, 56 S 891; State v. Hill, 160
La 579, 107 S 433; State v. Jenkins,
160 La 757, 107 S 564; State v.
Linam, 175 La 865, 144 S 600; State
v. Davis, 178 La 203, 151 S 78.
Massachusetts. Commonwealth v.
Brisbois, 281 Mass 125, 183 NE 168.
Michigan. People v. Auerbach,
176 Mich 23, 141 NW 869, AnnCas
1915B, 557; People v. Dunn, 233
Mich 185, 206 NW 568.
Missouri. State v. Martin, 226 Mo
538, 126 SW 442; State v. Weaver
(Mo), 56 SW2d 25.
Montana, State v. Van, 44 Mont
374, 120 P 479; State v. Sheldon,
54 Mont 185, 169 P 37; State v.
Vuckovich, 61 Mont 480, 203 P 491.
Nebraska. Nixon v. State, 92 Neb
115, 138 NW 136; Witt v. State, 123
Neb 799, 244 NW 395.
Nevada. State v. Smithson, 54
Nev 417, 19 P2d 631, 22 P2d 129.
New Mexico. State v. Rodriguez,
23 NM 156, 167 P 426.
New York. People v. Fisher, 136
AppDiv 57, 120 NYS 659.
North Carolina. State v. Leak,
156 NC 643, 72 SE 567.
Ohio. Stewart v. State, 1 OhSt
66; Bond v. State, 23 OhSt 349; State
v. Stout, 49 OhSt 270>, 30 NE 437;
Earp v. State, 21 OhApp 417, 153
NE 245; Greger v. State, 27 OhApp
272, 161 NE 37; Stover v. State, 37
OhApp 213, 33 OLR 598, 174 NE
613; Romeo v. State, 39 OhApp 309,
34 OLR 150, 177 NE 483; Lesnick
v. State, 48 OhApp 517, 40 OLR
301, 194 NE 443; Watha v. State,
14 OhCirCt (N. S.) 145, 24 OhCir
Dec 60; Donald v. State, 21 OhCirCt
124, 11 OhCirDec 483; Avant v.
State, 3 OLA 156; Gibbs v. State,
7 OLA 374.
The court is not bound to give
special charges in a criminal case.
Lesnick v. State, 48 OhApp 517, 40
OLR 301, 2 OLO 99, 194 NE 443.
Oklahoma. Jones v. State, 51 Okl
Cr 377, 1 P2d 833; Bond v. State,
54 OklCr 39, 14 P2d 425.
Oregon. State v. Hardin, 63 Or
305, 127 P 789.
Pennsylvania. Commonwealth v.
Brown, 116 PaSuper 1, 175 A 748.
South Dakota. State v. Harbour,
27 SD 42, 129< NW 565; State v,
Cline, 27 SD 573, 132 NW 160.
Tennessee. Nash v. State, 167
Tenn 288, 69 SW2d 235.
Texas. Warren v. State, 67 TexCr
273, 149 SW 130; Smith v. State,
104 TexCr 100, 283 SW 508; Wil-
liams v. State, 104 TexCr 565, 286
SW 237; Rose v. State, 123 TexCr
261, 58 SW2d 526 (intent to kill);
Yurash v. State, 125 TexCr 664, 69
SW2d 135; Cobb v. State, 127 TexCr
504, 77 SW2d 667; Bradshaw v.
State, 128 TexCr 345, 81 SW2d 83.
Washington. State v. Smails, 63
Wash 172, 115 P 82; State v. Cherry
Point Fish Co., 72 Wash 420, 130
461
REQUESTS
159
Accordingly, if the several matters are substantially covered
by the general charge, the court properly refuses charges in
criminal prosecutions on such subjects as reasonable doubt,28
self-defense,29 good character of accused,30 presumption of in-
P 499; State v. Holcomb, 73 Wash
652, 132 P 416.
West Virginia. State v. Huffman,
69 WVa 770, 73 SW 292; State v.
Koski, 101 WVa 477, 133 SE 79.
Wisconsin. Reismier v. State, 148
Wis 593, 135 NW 153.
27 Federal. Western Union Tel.
Co. v, Morris, 105 F 49.
California. People v. Manriquez,
138 CalApp 614, 33 P2d 36.
Illinois. People v. Moor, 355 111
393, 189 NE 318.
Indiana. See Diblee v. State, 202
Ind 571, 177 NE 261.
Iowa. State v. Sanford, 218 la
951, 256 NW 650.
Kentucky. Burks v. Common-
wealth, 254 Ky 193, 71 SW2d 418.
New York. In People v. Alex,
265 NY 192, 192 NE 289, the court
refused to charge the statute to
the effect that unnecessary delay in
arraigning an accused person is con-
trary to law.
Pennsylvania. Commonwealth v.
Brletic, 113 PaSuper 508, 173 A 686.
Texas. Andrew v. Mace (TexCiv
App), 194 SW 598.
Virginia. Campbell v. Common-
wealth, 162 Va 818, 174 SE 856.
Wisconsin. See also John v.
Pierce, 172 Wis 44, 178 NW 297.
28 Federal. United States v.
Becker, 62 F2d 1007.
Alabama. Jackson v. State, 18
AlaApp 259, 89 S 892.
Arkansas. Monk v. State, 130 Ark
358, 197 SW 580.
Colorado. Gould v. People, 89 Colo
596, 5 P2d 580.
District of Columbia. Aldridge v.
United States, 61 AppDC 103, 57 F
2d 942.
Florida. Street v. State, 76 Fla
217, 79 S 729.
Georgia. Campbell T. State, 144
Ga> 224, 87 SE 277; Brown v. State,
148 Ga 264, 96 SE 435; Thompson v.
State, 20 GaApp 176, 92 SE 959.
Illinois. People v. Venckus, 278
111 124, 115 NE 880; People v. David-
son, 298 111 455, 131 NE 640.
Kansas. State v. Gaunt, 98 Kan
186, 157 P 447.
Michigan. People v. Goodfellow,
257 Mich 196, 241 NW 184; People
v. Dellabonda (People v. Salimone),
265 Mich 486, 251 NW 594.
New Jersey. State v. Burrell, 112
NJL 330, 170 A 843.
Ohio. Beck v. State, 129 OhSt
582, 196 NE 423.
Oregon. State v. Wilder, 98 Or
130, 193 P 444.
Pennsylvania. Commonwealth v.
Del Giorno, 303 Pa 509, 154 A 786.
Texas. McCarty v. State, 123 Tex
Cr 34, 57 SW2d 114; Wall v. State,
125 TexCr 588, 69 SW2d 61.
Utah. State v. Shaw, 59 Utah
536, 205 P 339; State v. Fairclough,
86 Utah 326, 44 P2d 692.
29 Alabama. Nickerson v. State,
205 Ala 684, 88 S 905; Crumley v.
State, 18 AlaApp 105, 89 S 847;
Teel v. State, 18 AlaApp 405, 92 S
518; Beverett v. State, 24 AlaApp
470, 136 S 843, cert. den. in 223
Ala 405, 136 S 845.
Arkansas. Rankin v. State, 149
Ark 670, 234 SW 23.
California. People v. Chober, 29
CalApp 627, 157 P 533; People v.
Anderson, 57 CalApp 721, 208 P 204.
Florida. Allen v. State, 119 Fla
345, 161 S 406.
Indiana. Southerland v. State, 209
Ind 308, 197 NE 841.
Iowa. State v. Russo, 193 la 992,
188 NW 660.
Kansas. State v. Barbour, 142 Kan
200, 46 P2d 841.
Nevada. State v. Robison, 54 Nev
56, 6 P2d 433.
New Jersey. State v. Flynn, 108
NJL 19, 156 A 117.
Texas. Rawls v. State, 127 TexCr
414, 76 SW2d 1053.
Virginia. Ballard v. Common-
§160
INSTRUCTIONS — RULES GOVERNING
462
nocence,31 alibi,32 intent,33 motive,34 accomplice testimony,35
confessions,36 opinion of expert as to disputed handwriting,37
and accidental killing.38
Where the court in a criminal case has fairly charged the
law of reasonable doubt, it is not error to refuse to give a re-
quested charge on the presumption of innocence.39
§ 160. Refusal of Inconsistent requests.
Where a party requests instructions which are inconsistent
with each other, the court is at liberty to choose between them,
giving one and rejecting the other.
If requested instructions are inconsistent with each other,
the judge may properly reject both.40 But the judge is free to
wealtti. 156 Va 980', 159 SE 222.
Washington. State v. Bezemer,
169 Wash 559, 14 P2d 460.
Wyoming. State v. Radon, 45 Wyo
383, 19 P2d 177.
30 California. People v. Miller,
126 CalApp 162, 14 P2d 342.
Georgia. Knight v. State, 148 Ga
40, 95 SE 679.
Illinois. People v. Hrdlicka, 344
111 211, 176 NE 308.
3 'Federal. Hayes v. United
States, 52 F2d 388.
Arkansas. Thompson v. State, 130
Ark 217, 197 SW 21.
California. People v. Anderson, 58
CalApp 267, 208 P 324.
Indiana. Mack v. State, 203 Ind
355, 180 NE 279, 83 ALR 1349.
Missouri. State v, Lassieur (Mo),
242 SW 900.
South Carolina. State v. Bigham,
119 SC 368, 112 SE 332.
Texas. Gleason v. State, 79 TexCr
185, 183 SW 891; Wood v. State, 80
TexCr 398, 189 SW 474.
32 California. People v. Lim
Foon, 29 CalApp 270-, 155 P 477;
People v. Visconti, 31 CalApp 169,
160 P 410, 411.
Georgia. Williams v. State, 152
Ga 498, 110 SE 286.
Indiana* Gears v. State, 203s Ind
380, 180 NE 585.
Missouri. State Y. Simpson (Mo),
237 SW 748; State v. Tracy, 294 Mo
372, 243 SW 173.
New Mexico. State v. Compton, 39
130, 42 P2d 203.
Ohio. It is not sufficient charge
on alibi to instruct on reasonable
doubt and the presumption of inno-
cence. McGoon v. State, 39 OhApp
212, 177 NE 238.
Oregon. State v. La Plant, 149
Or 615, 42 P2d 158.
Washington. State v. Simons, 172
Wash 438, 20 P2d 844.
West Virginia. State v. Summer-
ville, 112 WVa 398, 164 SE 508.
33 People v. Smith, 192 Mich 355,
158 NW 849.
34 People v. Garcia, 2 Cal2d 673,
42 P2d 1013.
35 Federal. Cheatham v. State of
Texas, 48 F2d 749.
Florida. Bass v. State, 121 Fla
208, 163 S 485.
Michigan. People v. Knoll, 258
Mich 89, 242 NW 222.
Oklahoma. Hadley v. State, 52
OklCr 423, 6 P2d 451.
Texas. Dunn v. State, 129 TexCr
90, 83 SW2d 963.
Washington. State v. Dickey, 181
Wash 249, 42 P2d 790.
36 Hopkins v. People, 89 Colo
296, 1 P2d 937; Mosley v. State, 48
OhApp 554, 194 NE 613.
37 State v. Hauptmann, 115 NJL
412, 180 A 809.
38 Curtis v. State, 28 GaApp 219,
110 SE 907.
39 State v. Snider, 151 MoApp
699, 132 SW 299.
40 St. Paul Fire & Marine Ins. Co.
v. Pipkin (TexCivApp), 207 SW 360'.
463
REQUESTS
§160
choose between them, and the requesting party cannot complain
of the choice made,4 ' even if the one refused is a correct state-
ment of the law applicable to the case.42
Where instructions given at the request of one of the parties
submit to the jury an issue of fact as to care or negligence,
the court will be justified in refusing to submit, separately, a
group of the same facts involved in a form which assumes the
issue arising therefrom to be one of law only.43 So, where
instructions which assume the existence of facts necessary to
make out a case for the plaintiff are given at the request of the
defendant, there is no error in refusing another of defend-
ant's requested instructions that "the evidence In this case
would not justify a verdict for the plaintiff and your verdict
must be for the defendant/'44 So, where a party has requested
a charge that an action was ex contractu, the court properly
refused a subsequent request that the action was ex delicto.45
But there is no such inconsistency as to prevent an injured
plaintiff from submitting both the doctrine of negligence and
the humanitarian doctrine.46
41 Colorado. Healey v. Rupp, 28
Colo 102, 63 P 319.
District of Columbia. Washington
Ry. & Elec. Co. v. Clark, 46 AppDC
88.
Illinois. Chicago City Ry. Co. v.
Taylor, 170 111 49, 48 NE 831; Phil-
lips v. Stone, 208 IllApp 478.
Maryland. Aetna Indem. Co. v,
George A. Fuller Co., Ill Md 321,
73 A 738, 74 A 369.
Missouri. Tetherow T, St. Joseph
& D. M. Ry. Co., 98 Mo 74, 11 SW
310, 14 AmSt 617.
Nebraska. Missouri Pacific Ry.
Co. v. Fox, 60 Neb 531, 83 NW 744.
New York. Ramsey v. National
Contr. Co., 49 AppDiv 11, 63 NYS
286.
Ohio. Miller & Co. v. Florer, 19
OhSt 356.
Pennsylvania. Griesemer v. Sub-
urban Elec. Co., 224 Pa 328, 73 A
340.
Texas. St. Paul Fire & Marine
Ins. Co. v. Pipkin (TexCivApp), 207
SW 360; State v. Texas Pacific Coal
& Oil Co. (TexCivApp), 236 SW
1021.
West Virginia. Lazzell v. Mapel,
1 WVa 43.
42 Healey v. Rupp, 28 Colo 102,
63 P 319.
See also cases in note 41, supra,
43 Tetherow v. St. Joseph & D.
M. Ry. Co., 98 Mo 74, 11 SW 310,
14 AmSt 617.
In an action for personal injuries,
where the court, at defendant's re-
quest, charges that the jury could
not award as damages a sum which
would capitalize the plaintiff's yearly
losses, a second request to instruct
that the jury must consider the
award in the light of capital to be
invested, producing a yearly income,
is antagonistic to the first and there-
fore rightly refused. Ramsey v.
National Contr. Co., 49 AppDiv 11,
63 NYS 286,
44 Chicago City Ry. Co. v. Taylor,
170 111 49, 48 NE 831.
43 Western Union Tel. Co. v. Grif-
fith, 161 Ala 241, 50 S 91.
46 De Rousse v. West, 198 MoApp
293, 200 SW 783.
161
INSTRUCTIONS — RULES GOVERNING
464
§ 161. Requests for special verdict or findings on interrogatories
by jury*
It is the duty of a party desiring the jury to return a special
verdict or special findings on interrogatories to make timely and
proper request to the court therefor.
In jurisdictions where the jury may be required to return
a special verdict, or where parties are entitled to have the
jury make special findings of fact upon any of the issues, it
may or may not be in the court's discretion to submit such special
verdict or interrogatories for findings of fact, depending upon
either statutory provision, or upon the practice adopted in
the particular jurisdiction.47 Whatever the practice, however,
the court is not required to make such submission sua sponte,
but the party at whose instance the submission is to be made
must present proper requests therefor.48 If a party desires find-
ings as to special issues of negligence, he must make request for
a special verdict.49
Where the court gives a main charge, submission of special
issues or findings should not include matters already covered by
the court's instructions.50 On the other hand, it has been held
47 See § 111, supra.
In Grand Lodge, K. of P. v. Cen-
tral States Fire Ins. Co., 136 Kan
342, 15 P2d 466, it was held that
the trial court, in the exercise of dis-
cretionary power, could submit addi-
tional special questions after verdict
and answers to other questions had
been brought in.
48 Federal. If no requests for
special findings be made, it is not
error to fail to require a special
verdict United States Fidelity &
Guaranty Co. v. Barber, 70 F2d 220.
Ohio. McDowell v. Rockey, 32 Oh
App 26, 29 OLR 371, 167 NE 589.
It is the duty of counsel to submit
special interrogatories to determine
whether the error, if any, shall
operate to defeat substantial justice.
Jones v. Erie R. Co., 106 OhSt 408,
140 NE 366.
Texas. Southern Surety Co. v,
Adams (TexCivApp), 278 SW 943;
Childress v. Pyron (TexCivApp), 285
SW 1100; Moore v. Orgain (TexCiv
App), 291 SW 583; Ratcliffe v.
Ormsby (TexCivApp), 298 SW 930.
Wisconsin. Brown Deer Lbr. Co.
v. Campbell-Shirk Co., 201 Wis 333,
230 NW 81; Conway v. Providence
Washington Ins. Co., 201 Wis 502,
230 NW 630. See Hamus v. Weber,
199 Wis 320, 226 NW 392; Hoffman
v. Regling, 217 Wis 66, 258 NW 347.
49 Gherke v. Cochran, 198 Wis 34,
222 NW 304, 223 NW 425.
50 Maryland. See R. N. McCul-
loh & Co. v. Restivo, 152 Md 60, 136
A 54.
North Carolina. Sugg v. St. Mary's
Oil Engine Co., 193 NC 814, 138
SE 169.
Texas. McBurnett v. Smith & Mc-
Callin (TexCivApp), 286 SW 599;
Cohen v. Hill (TexCivApp), 286 SW
661.
If one of several interrogatories
presented together has been covered
by instructions, all should be re-
fused. Tucker v. Smellage (TexCiv
App), 297 SW 875.
Wisconsin. Necedah Mfg. Corp.
v. Juneau County, 20-6 Wis 316, 237
NW 277, 240 NW 405, 96 ALR 4.
465
REQUESTS
§161
to be the duty of the trial court to supply slight omissions or
defects in requests made for submission of interrogatories.51
Requests are defective if the answers to the proposed in-
terrogatories would not establish the ultimate probative facts.52
The time when the requests are to be made is not uniform in
the states where such submissions may be made.53
s l Ziman v. Whitley, 110 Conn
108, 147 A 370. See Pettric v. Grid-
ley Dairy Co., 202 Wis 289, 232 NW
595.
52 McFadden v. Thomas, 154 OhSt
405, 43 OhO 340, 96 NE2d 254; Mac-
donald v. State ex rel. Fulton, 47
OhApp 223, 40 OLR 236, 191 NE
837.
53 Special question tendered dur-
ing argument comes too late. Holden
v. Meehan, 239 Mien 266, 214 NW
206.
Special interrogatories must be
submitted before commencement of
argument of counsel. Proudfoot v.
Pocahontas Transp. Co., 100 WVa
733, 132 SE 746.
CHAPTER 8
PRESERVATION OF ERROR FOR REVIEW
Section. Section,
170. In general. 173. Particularity in statement of
171. Timeliness of objections and grounds of objection or ex-
exceptions, ception.
172. Clearness of statement of 174. General objections or excep-
grounds of objection or ex- tions to entire charge,
ception. 175. Waiver of objections and ex-
ceptions.
§ 170* In general.
Normally, to preserve for appellate review an alleged error
in instructions, the aggrieved party must satisfy the local pro-
cedural requirements relating to objections and exceptions.
Necessity for objection. Instructions, whether by the court
or granted requests, may be erroneous because the substantive
law stated is incorrect or inapplicable or because there is an omis-
sion, or because of ambiguity, or for other reasons. ' In any case,
an appellate court will normally review an allegedly incorrect
charge only if the aggrieved party has satisfied the procedural
requirements.
One of the procedural requirements is that objection must
be made in the trial court to the giving of an allegedly incorrect
charge.2 The obligation to object is normally not excused, except
in cases of impossibility. The trial judge's mere failure to ask
for objections is no excuse.3 Even the hasty retirement of the
judge after delivering the charge is no excuse; counsel must
pursue the judge to his chambers to request an opportunity to
object in the courtroom;4 critical discussion with the judge in
his chambers is no substitute for an objection.3
A party desiring to preserve an error of omission has a sim-
ilar duty to object,6 some courts indicating that the objection
1 See, generally, Chapters 4, 5 NE2d 432; Koenig v. Flaherty, 383
and 6, supra. Pa 186, 117 A2d 719.
2 Scarber v. State, 226 Ark 503, 3 Eamiello v. Piscitelli, 133 Conn
291 SW2d 241; Downing v. Silber- 360, 51 A2d 912.
stein, 89 CalApp2d 838, 202 P2d 91; 4 Seaboard Freight Line v. Castro
State v. Perretta, 93 Conn 328, 105 Elec. Co., 132 Conn 572, 46 A2d 10.
A 6901; Orban v. Stoll, 328 IllApp 5 Eamiello v. Piscitelli, 133 Conn
398, 66 NE2d 316; Shattuek v. Sbat- 360, 51 A2d 912.
tuck's Estate, 118 Minn 60, 136 NW 6 Karr v. Sixt, 146 OnSt 527, 33
409; Charles A. Burton, Inc. v. Dur- OhO 14, 67 NE2d 331.
kee, 162 OhSt 433, 49 OhO 174, 123
466
467 PEESERVATION OP ERROR FOR REVIEW § 170
plus a request for amplification is sufficient.7 More courts, how-
ever, require counsel to present the charge to fill the gap.8
In order to preserve for appeal an ambiguous instruction,
objection again must be made, coupled, in some courts, with a
mere request for clarification,9 but in other courts, with the sub-
mission of explanatory instructions. ' °
Besides the proper content of the objection, all the formalities
required by the local statutes or rules of procedure must be com-
plied with. 1 1
Although it is not generally required that the objections shall
be submitted to the opposing counsel,12 the aggrieved party's
counsel should be given a reasonable opportunity to be heard
on his objection before the instruction is read to the jury.13
In the absence of objections.14 or where the review tran-
script does not contain the court's charge at all, ' 5 the presump-
tion is that the trial judge correctly charged the jury.
When objection unnecessary or ineffective. As a general rule,
manifestly erroneous instructions do not require objection.16 But
because the application of this rule is discretionary, the attorney
should play safe and object.
Generally, only the aggrieved party can object.17 Under the
invited error doctrine, an appellant cannot complain about a
charge that was given at his request. ' B Nor can he complain of
7 Hodina v. Bordewick, 279 App ' s Reid v. Hathaway Bakeries,
Div 267, 110 NYS2d 62. Inc., 333 Mass 485, 132 NE2d 161;
8 Perry v. City of San Diego, 80 Verplanck v. Morgan, 55 OLA 574,
CalApp2d 166, 181 P2d 98; Macal v. 90 NE2d 872.
Chicago Tumor Institute, 9 IllApp2d ' 6 Chicago & N. W. Ry. Co. v.
389, 132 NE2d 809; Galliher v. Camp- Green, 164 F2d 55 (SthCir) ; Kading
bell, 69 OLA 378, 125 NE2d 758; v. Willis, 135 CalApp2d 82, 286 P2d
Schmidt v. Martz, 161 PaSuper 4S9, 861; Love v. United States, 138 A2d
55 A2d 588; Forbes v. Hejkal (Tex 666- (DCMunApp); Finton v. Mer-
CivApp),271 SW2d 435. cury Motors, 29 TennApp 150, 194
9 Sullivan v. Matt, 130 CalApp2d SW2d 354.
134, 278 P2d 499. Under the Kentucky practice, the
1 ° Sunset Motor Lines v. Blasin- court is required to charge the en-
game (TexCivApp), 245 SW2d 288. tire law correctly, and it is not
1 * Chicago & N. W. Ry. Co. v. incumbent upon a party to object
Green, 164 F2d 55 (SthCir); Hen- or except to the instructions given
schel v. Schreiber, 47 OLA 234, 72 or refused. Barton v. Common-
NE2d 107. wealth, 238 Ky 356, 38 SW2d 218.
1 2 Atchison, T. & S. F. Ry. Co. v. The same rule is prescribed by
Smith (TexCivApp), 190 SW 761. statute in Wisconsin. Wisconsin
13 Russell v. State, 17 OklCr 164, Stat. § 270.39.
194 P 242. 1 7 United States v. Fischer, 245
14 Hartford Fire Ins. Co. v. F2d 477; Chicago Union Trac. Co.
Thompson, 175 F2d 10 (SthCir 1949); v. Hansen, 125 IllApp 153.
Jettre v Healy, 245- la 294, 60 NW2d ! 8 Dime Sav. Bank v. Morton, 25
541. Oh App 157, 157 NE 825; Asteri v.
§ 170 INSTRUCTIONS — RULES GOVERNING 468
the giving- of an instruction which is similar to one he re-
quested. ' 9
Exception to the error*® Although the courts often inter-
change the terms "objection" and "exception/' they are not
strictly synonymous. An objection is an expression of disap-
proval of the trial judge's non-ruling conduct. After the objec-
tion, the trial judge rules upon the objection. If the objection
is overruled, the aggrieved party excepts to the ruling as a
foundation for appeal.
In many states, an objection alone is insufficient to preserve
the question for appeal.2' But in other states, an exception is
not necessary.22
Bill of exceptions. Objections to instructions are not part of
the common law record. Yet a reviewing court passes upon al-
leged errors as contained in the record. In the absence of a
statutory provision incorporating the charge and objection into
the record, the usual method of inserting the objection into the
record is by a bill of exceptions. Instructions do not become
part of the record merely by being copied into the transcript.23
A bill of exceptions is a formal written statement of the
objections with the supporting circumstances and signed by the
trial judge.24 It is necessary to state by whom the instructions
were requested to avoid the invited error rule.25 Obviously the
questioned instruction should be set forth.26
Youngstown, 67 OLA 605, 121 NE2d 24 Van Laaten v. Chicago Athletic
143. Assn., 351 IllApp 373, 115 NE2d
19 Smith v, Pellissier, 134 Cal 112; City of Mangum v. Garrett, 200
App2d 562, 286 P2d 66; Hocker v. Okl 274, 191 P2d 998; Gowan v.
Vande Walle, 16 IllApp2d 414, 148 Reimers (TexCivApp), 220 SW2d
NE2d 618; Illinois Transit Lines v. 331.
Packer City Transit Lines, 9 IllApp 2S City of Chicago v. Callender,
2d 161, 132 NE2d 433; Coca Cola 396 111 371, 71 NE2d 643. In a later
Bottling1 Works, Inc. v. Williams, Illinois Appellate Court case, the
111 Ind 502, 37 NE2d 702; Keeshin court held that even though the
Motor Exp. Co. Inc. v. Glassman, record failed to indicate who had
219 Ind 538, 38 NE2d 847. requested the instructions, the court
20 See also § 185, infra. might examine the assigned errors,
21 Fields v. New York, 4 NY2d although the party was identified
334, 151 NE2d 188; Cravens v. only in the abstract. Miller v.
Hughes, 207 Okl 503, 250 P2d 877; Green, 345 IllApp 255, 103 NE2d
Oja v, LeBlanc, 185 Or 333, 203 P2d 188.
267. 26 See Thomas v. Laguna, 113
22Fla. Stat, 1955, §59.07; Oh. CalApp2d 657, 248 P2d 929; Tir v.
Rev. Code, §§ 2321.03, 2945.09. Shearn, 2 IllApp2d 257, 119 NE2d
23 J. R. Watkins Co. v. Chapman, 406.
197 Okl 466, 172 P2d 768.
469 PRESERVATION OF ERROR FOR REVIEW § 171
Further steps necessary for preservation of error. Normally,
the aggrieved party must make a motion for a new trial based on
errors in the instructions.27
The alleged errors must be enumerated by the appellant in an
assignment of errors, in effect, his pleading in the appellate
court. The assignment of errors should not only identify the
instructions containing alleged errors, but should also state why
the errors were prejudicial.28 The assignment of errors is in-
sufficient if it merely states that the instructions were contra-
dictory or erroneous,29 or that all of the instructions are erron-
eous and any one is correct.30
Some reviewing courts require a record abstract which is a
summary of the material portions of the record. This eliminates
searching the entire record transcript. An abstract which is so
inadequate as to require a search ordinarily justifies dismissal.31
Not only must the questioned instruction be included in the ab-
stract, but also at whose instance the instruction was given.32
§ 171. Timeliness of objections and exceptions.
The right to urge error in instructions will be lost if the
objection or exception is not made within the time fixed by the
local code or rules.
Not only must an objection or exception be made to preserve
the error for appeal, but they must be made within the time
fixed by the code or rules of the particular jurisdiction.33
27 Henrikson v. Knox, 350 IllApp versible error, where tlie judge al-
57, 111 NE2d 384; Leisure v. Hicks, lowed all the exceptions to be noted
336 Mich 148, 57 NW2d 473; Adams in open court. Gandia v. Petting!!!,
v. New Kensington, 374 Pa 104, 97 222 US 452, 56 LEd 267, 32 SupCt
A2d 354. 127, 9 OLE 590.
28 Miller v. Jackson, 92 OhApp Exceptions must be taken before
199, 49 OhO 321, 107 NE2d 922. the case is submitted to the jury.
29 Batehelor v. Caslavka, 128 Cal Cudahy Packing Co. v. Luyben, 9
App2d 819, 276 P2d 64; Bloxham v. F2d 32. See also Griffin Groc. Co.
Robinson, 67 Idaho 369, 181 P2d 189; v. Richardson, 10 F2d 467.
Texas Life Ins. Co. v. Jordan (Tex Indiana. Fame Laundry Co. v.
CivApp), 253 SW2d 906. Henry, 195 Ind 453, 144 NE 545.
3° North v. Evans, 199 Okl 284, Iowa. Busch v. Tjentland, 182 la
185 P2d 901; Jones v. Eppler, 266 360, 165 NW 999.
P2d 451, 48 ALR2d 333. Massachusetts. Garfield & Proc-
3 1 Chicago Park Dist. v. Harris, tor Coal Co. v. New York, N. H.
402 111 214, 83 NE2d 702. & H. R. Co., 248 Mass 502, 143 NE
32 Rawls v. Tansil, 221 Ark 699, 312.
255 SW2d 973; Thomas v. Mosheim, Minnesota. R. W. Bonyea Piano
345 IllApp 184, 102 NE2d 555. Co. v. Wendt, 135 Minn 374, 160 NW
33 Federal. Sending the jury out 1030.
before counsel had stated all of his North Carolina. Muse v. Ford
exceptions to the charge is not re- Motor Co., 175 NC 466, 95 SE 900;
§171
INSTRUCTIONS — RULES GOVERNING
470
State v. Chambers, 180 NC 705, 104
SE 670; Dees v. Lee, 183 NC 206,
111 SE 3.
North Dakota. Under Comp. Laws
1913, § 10824, exceptions may, and
must, be taken within 20 days. State
v. Balliet, 61 ND 703, 240 NW 604.
Ohio. That charges asked are
given to the jury in the manuscript
instead of being read to them must
be objected to at the time or it is
not reversible error. Little Miami
R. Co. v. Washburn, 22 OhSt 324.
In Ohio Power Co. v. Fittro, 36
OhApp 186, 32 OLR 227, 173 NE
33, it was held that error in a
charge not excepted to, but made
ground for a new trial, must be
considered on appeal where the ex-
ceptions contained all the evidence
and the charge.
In Sullivan v. Grant, 32 OLE 558,
it was held that where there were
no exceptions to the charge at the
time the case went to the jury,
there was nothing to consider on
appeal as to the charge.
An exception to the charge need
not be in the presence of the jury
nor before their retirement, pro-
vided it be made in time for the
court to correct the charge. Salo-
mon v. Reis, 5 OhCirCt 375, 3
OhCirDec 184.
Oregon, Colgan v. Farmers &
Mechanics Bank, 59 Or 469, 106 P
1134, 114 P 460', 117 P 807.
Pennsylvania. First Nat. Bank
v. Delone, 254 Pa 409, 98 A 1042;
Sikorski v. Philadelphia & R. Ry.
Co., 260 Pa 243, 103 A 618.
Texas. Middleton v. State, 86 Tex
Cr 307, 217 SW 1046; Blackwell v.
State, 107 TexCr 58, 294 SW 852;
Noble v. Long (TexCivApp), 298
SW 618.
Objections to court's charge must
be made before it is read to the
jury. Campbell v. Johnson (TexCiv
App), 284 SW 261.
34 Federal Mann v. Dempster,
104 CCA 110, 181 F 76; Wells Far-
go & Co. v. Zimmer, 108 CCA 242,
186 F 130; American Issue Publish-
ing Co. v. Sloan, 160 CCA 329, 248
F 251; RotBman v. United States,
270 F 31; Fisk v. United States,
279 F 12; Elderd v. United States,
44 F2d 170; Davis v. United States,
78 F2d 501.
Exceptions to charge must be
taken in jury's presence before they
retire to deliberate upon their ver-
dict. Booth v. United States, 57
F2d 192.
Illinois. Edson Keith & Co. v.
Eisendrath, 192 IllApp 155 (oral
charge).
Louisiana. State v. Rini, 151 La
163, 91 S 664; State v. Wilson, 169
La 684, 125 S 854; State v. John-
son, 171 La 95, 129 S 684; State v.
Terrell, 175 La 758, 144 S 488.
Maine. Jameson v. Weld, 93 Me
345, 45 A 299; Poland v. McDowell,
114 Me 511, 96 A 834.
Maryland. State Roads Comm. v.
Berry, 208 Md 461, 118 A2d 649.
Massachusetts. Maxwell v. Massa-
chusetts Title Ins. Co., 206 Mass
197, 92 NE 42.
Minnesota. Sembum v. Duluth &
I. R. R. Co., 121 Minn 439, 141 NW
523; State v Shtemme, 133 Minn
184, 158 NW 48.
New Hampshire. Pitman v.
Mauran, 69 NH 230, 40 A 392;
State v. Rheaume, 80 NH 319, 116
A 758.
New Jersey. J. B. Wolfe, Inc. v.
Salkind, 3 NJ 312, 70 A2d 72.
New Mexico. State v. Hurst, 34
NM 447, 283 P 904.
North Carolina. Green v. W. M.
Ritter Lbr. Co., 182 NC 681, 110
SE 56.
Oklahoma. St. Louis & S. F. R.
C. v. Fling, 36 Okl 25, 127 P 473.
Pennsylvania. McGinley v. Phila-
delphia & R. Ry. Co., 257 Pa 519,
101 A 825; Commonwealth v.
Stabinsky, 313 Pa 231, 169' A 439;
Commonwealth v, Taylor, 65 Pa
Super 113; General Roofing Co. v.
Greensburg Title & Trust Co., 71
PaSuper 373.
Tennessee. Smith v. State, 159
Tenn 674, 21 SW2d 400.
Texas. Republic Production Co.
v. Collins (TexCivApp), 41 SW2d
100.
Exceptions or objections filed three
471
PRESERVATION OF ERROR FOR REVIEW
171
In most jurisdictions it is required that exceptions shall be
taken before the jury retires,34 in some at the time they are
given,33 and in some before they are read to the jury.36 In
some cases, the court decided that exceptions are too late if
taken after verdict.37 In a few other states, it is held that ex-
ceptions to a charge may be taken at any time before the verdict
has been returned, even though the jury has retired.38
In most states, the exception would come too late where taken
after the filing of the motion for a new trial.39 An Iowa statute
authorizes the filing of exceptions to instructions within five
months after the trial, under statute
requiring same to be filed before the
case is submitted to the jury, are
not in time. Levine v. Trammell
(TexCivApp), 41 SW2d 334, apply-
ing Rev. Stat. 1925, art. 2185.
35 Jenkins v. United States, 58
F2d 556.
36 Federal. See Paschen v. United
States, 70 F2d 491.
Iowa. Seitsinger v. Iowa City
Elec. Ry. Co., 181 la 739, 165 NW
205; Freeby v. Sibley, 183 la 827,
167 NW 770;
Maine. Skene v. Graham, 116 Me
202, 100- A 938.
New Mexico. State v. Lucero, 24
NM 343, 171 P 785.
Oklahoma. Stribbling v. State,
41 OklCr 252, 272 P 488 (unless the
errors are of a fundamental char-
acter) .
Texas. McLaughlin v. Terrell
Bros. (TexCivApp), 179 SW 932;
Ochoa v. Edwards (TexCivApp),
189 SW 1022; Fred Mercer Dry
Goods Co, v. Fikes (TexCivApp),
191 SW 1178; Shumaker v. Byrd
(TexCivApp), 203 SW 461; Thomas
v. Corbett (TexCivApp), 211 SW
806; Queen v. Turman (TexCivApp),
241 SW 786; Schaff v. Copass (Tex
CivApp), 262 SW 234; Capitol Bldg.
& Loan Assn. v. Sosa (TexCivApp),
72 SW2d 936.
West Virginia. State v. Noble,
96 WVa 432, 123 SE 237.
37 United States. Illinois Cent.
R. Co. v. Skaggs, 240 US 66, 60 LEd
528, 36- SupCt 249.
Federal. Brent v. Charles H. Lil-
ly Co., 202 F 335.
Arkansas. Huffman v. Sudbury,
128 Ark 559, 194 SW 510.
Indiana. Neff v. Masters, 173 Ind
196, 89 NE 846.
Louisiana. State v. Henderson,
148 La 713, 87 S 721.
New Hampshire. Noel v. Lapointe,
86 NH 162, 164 A 769.
North Carolina. State v. Harris,
120 NC 577, 26 SE 774; PMfer v.
Cabarrus County, 157 NC 150, 72
SE 852; State v. Kincaid, 183 NC
709, 110 SE 612; Keller v. Caldwell
Furn. Co., 199 NC 413, 154 SE 674
(but holding that an exception to
the trial court's expression, of opin-
ion may be taken after verdict).
Texas. Walker v. State, 78 TexCr
237, 181 SW 191; Arensman v. State,
79 TexCr 546, 187 SW 471.
Virginia. Newport News & 0. P.
Ry. & Elec. Co. v. Bradford, 99 Va
117, 37 SE 807.
38 New York. Polykranas v.
Krausz, 73 AppDiv 583, 77 NYS 46;
Hunt v. Becker, 173 AppDiv 9, 160
NYS 45; Utica Nat. Bank & Trust
Co. v. Nickel, 128 Misc 614, 219
NYS 556.
North Carolina. State v. Graham,
194 NC 459, 140 SE 26.
Oklahoma. First Nat. Bank v.
Gum, 146 Okl 53, 293 P 188 (but
not after the verdict has been re-
turned); Patterson v. State, 4 Okl
Cr 542, 113 P 216.
Washington. State v. Neis, 68
Wash 599, 125 P 1022.
3 9 Florida. Clark v. State, 59
Fla 9, 15, 52 S 518.
Louisiana. State v. Wright, 104
La 44, 28 S 909.
§171
INSTRUCTIONS — RULES GOVERNING
472
days after verdict, or within such additional time as the trial
court may allow.40 The exceptions may be embodied in the mo-
tion for a new trial filed wirhin the five days. But an extension
of time to file a motion for a new trial does not extend the time
for filing the exceptions to the charge.41
It is also the general rule in criminal cases that objections
and exceptions must be made before the jury retires.42 Where
the jury retired for deliberation, and then returned into open
court and were given additional instructions, an exception to the
charges made after the jury had retired the second time was
held to have been too late.43
As a general rule the giving of oral instead of written instruc-
tions is waived by failure to object and take an exception at
the time.44
Massachusetts. Nagle v. Laxton,
191 Mass 402, 77 NE 719.
Minnesota. Turrittin v. Chicago,
St. P., M. & 0. Ry. Co., 95 Minn 408,
104 NW 225.
Missouri. State v. Dewitt, 152
Mo 76, 53 SW 429.
Nebraska. Bradstreet v. Grand
Island Banking Co., 89 Neb 590, 131
NW 956.
Washington. State v. Peeples, 71
Wash 451, 129' P 108.
40 Lein v. John Morrell & Co., 207
la 1271, 224 NW 576; Pomerantz v.
Pennsylvania-Dixie Cement Corp.,
212 la 1007, 237 NW 443.
4 < Henry v. Henry, 190 la 1257,
179 NW 856; Crow v. Casady, 191 la
1357, 182 NW 884; State v. Smith,
192 la 218, 180 NW 4; Shaw v.
Des Moines City Ry. Co., 192 la
488, 184 NW 1034; Blakesley v.
Standard Oil Co., 193 la 315, 187
NW 28.
42 Florida. Morrison v. State, 42
Fla 149, 28 S 97.
Louisiana, State v. Bush, 117 La
463, 41 S 793; State v. Mitchell, 127
La 270, 53 S 561.
New York. People v. Spohr, 206
NY 516, 100 NE 444.
North Carolina. State v. Foster,
172 NC 960, 90 SE 785; State v.
Wiseman, 178 NC 784, 101 SE 629;
State v. Westmoreland, 181 NC 590,
107 SE 438; State v. Brinkley, 183
NC 720, 110 SE 783.
Ohio. Jones v. State, 20 Oh 34;
Doll v. State, 45 OhSt 445, 15 NE
293; State v. Schaeffer, 96 OhSt 215,
117 NE 220, LRA 1918B, 945, Ann
Cas 1918E, 1137; Fabian v. State,
97 OhSt 184, 119 NE 410.
Oklahoma. Brewer v. State, 13
OklCr 514, 165 P 634; Russell v.
State, 17 OklCr 164, 194 P 242.
Pennsylvania. Commonwealth v.
Razmus, 210 Pa 609, 60 A 264; Com-
monwealth v. Wilston & Wilston, 73
PaSuper 161.
Rhode Island. But see State v.
Pirlot, 20 RI 273, 38 A 656.
South Dakota. State v. Hofer, 39
SD 281, 164 NW 79*.
Texas. Gould v. State, 66 TexCr
122, 146 SW 172; McPherson v.
State, 79 TexCr 93, 182 SW 1114.
43 United States v. Sprinkle, 57
F2d 968.
44 Arkansas. Barnett Bros. v.
Porter, 134 Ark 268, 20'3 SW 842.
South Carolina. So where the
court, in charging" orally, errs in
stating- the contentions of counsel,
attention should be directed thereto
at the time in order to preserve an
exception. Hatchell v. Chandler, 62
SC 380, 40 SE 777.
Washington. Gerber v. Aetna
Indem. Co., 61 Wash 184, 112 P 272
(filing with clerk after trial too
late) ; Taylor v. Kidd, 72 Wash 18,
129 P 406.
473 PRESERVATION OF EEEOR FOE EEVIEW § 172
The parties may not stipulate for extensions of time for filing
exceptions not allowed by law.45
§ 172, Clearness of statement of grounds of objection or ex-
ception*
A clear and definite statement must be made of the grounds
of the objection to the charge.
Clearness is an essential element of an objection or exception.
This requires a clear and definite statement of the grounds of
the objection or exception to the questioned instruction.46
Since clearness is essential, a mere statement by the court
that "I understand counsel to except to my failure to charge
all the requests not charged, and to all modifications of requests,"
raises no question for review.47 Where an exception sets out
neither the words nor the substance of the ruling objected to,
it is too vague and indefinite.48 So, an exception to a portion
of a sentence in the court's charge, apart from its context, is
not commendable and may be so improper as to justify the re-
viewing court in ignoring it.49
The exact statement made by the trial judge must be desig-
nated as that to which exception is taken, and merely a descrip-
tive exception to part of an oral charge is not sufficient.80 A de-
fect in an instruction defining an accessory as one who aids
45 State v. Brown, 39 SD 567, 44 SW2d 687; Cadle v. State, 122
165 NW 987. TexCr 595, 57 SW2d 147.
46 Georgia. Reeves v. H. C. All- Washington. Casual remark that
good & Co., 133 Ga 835, 67 SE 82. the ruling is erroneous is not a
Indiana. Hickman v. State, 203 sufficient exception. Gerber v. Aetna
Ind 93, 177 NE 837. Indem. Co., 61 Wash 184, 112 P 272.
Iowa. State v. Derry, 202 la 352, 47 Henderson v. Bartlett, 32 App
209 NW 514. Div 435, 53 NTS 149.
Missouri. De Ford v Johnson, 152 48Aiabama. As a general rule
MoApp 209, 133 SW 393. an exception should re*ite the ^
Montana. Ross v. Saylor, 39 Mont struction so as to give tlie courfc an
559, 104 P 864. opportunity to correct or modify it.
New Jersey. Paramount Up- Birmingham Ry. Light & Power Co.
holstenng Works v. David, 7 NJMisc Cockrunij m Ala 372, 60 S 304.
179, 144 A 628, affd. in 106 NJL Maine ^^ ^ FieMs> 89 Me
588, 148 A 920. 2gl 3& A 375 56 AmSt 424.
ooN^^^ak^a\TwUS1S^ \* IT* Massachusetts. See Pendleton v.
™ ^ £?V f r^ i Ji JB i o Jf Boston Elev* ** Co" 26G Mass 214>
(N. S.) 1217, AnnCas 1914B, 1069. - flc, M1? «,»
Oregon. Smith v. Pacific North- b^Q ^ * _ .+ „ „ ,r
west Public Service Co., 146 Or -Indiana Fnnt Co. v. Sandhn,
422, 29 P2d 819. 125 Ga 222' 54 bjij 65'
Texas. Woodell v. State, 103 Tex 50 Byrd v. State, 24 AlaApp 451,
Cr 86, 279 SW 840 (where the ob- 136 S 4S1; Ferguson v. State, 24
jection was held to be too indefinite) ; AlaApp 491, 137 S 315, 223 Ala
Gideon v. State, 110 TexCr 612; 521, 137 S 317.
§173
INSTRUCTIONS — BULBS GOVERNING
474
"or" abets, instead of "and" abets. Is not reached by an objection
that the charge was inapplicable to the facts of the case.51
But the mere fact that a portion of a charge is quoted and
excepted to will not make the exception too indefinite. If the
error is clearly pointed out, it will be sufficient.52
§ 173. Particularity in statement of grounds of objection or
exception.
General objections or exceptions will be disregarded by re-
viewing courts; the particular ground of objection to an instruc-
tion must be stated.
The particular ground of objection to an instruction must be
pointed out, so that the trial court may have an opportunity to
correct the error. General and too comprehensive objections
prevent this and will be disregarded by a reviewing court.53
s i State v. McClain, 76 Mont 351,
246 P 956.
52Norris v. Clinkscales, 59 SC
252, 37 SE 821.
53 Federal. United States v.
Hammond, 226 F 849; Bowater v.
Worley, 57 F2d 970; Mergenthaler
Linotype Co. v. Evans, 69 F2d 287;
Strader v. United States, 72 F2d 589.
Alabama. Harris v. Wright, 225
Ala 627, 144 S 834.
It is insufficient merely to "except
to that part of the charge defining
wantonness." Conway v. Robinson,
216 Ala 495, 113 S 531.
Arkansas. St. Louis, I. M. & S.
Ry. Co. v. Dunn, 94 Ark 407, 127
SW 464; Dierks Lbr. & Coal Co. v.
Coffman, 96 Ark 505, 132 SW 654;
Townsley v. Yentsch, 98 Ark 312, 135
SW 882; St. Louis, I. M. & S. Ry.
Co. v. Prince, 101 Ark 315, 142 SW
499; Taylor v. Evans, 102 Ark 640,
145 SW 564; Emerson v. Stevens
Grocer Co., 105 Ark 575, 151 SW
1003; Rittenhouse v. Bell, 106 Ark
315, 153 SW 1111; Bocquin v. Theur-
er, 133 Ark 448, 202 SW 845; New
Coronado Coal Co. v. Jasper, 144
Ark 58, 222 SW 22; Cohn v. Chap-
man, 150 Ark 258, 234 SW 42.
Connecticut. State v. Tripps, 84
Conn 640, 81 A 247; Syms v. Har-
mon, 134 Conn 653, 60 A2d 166.
District of Columbia. Washing-
ton Ry, & Elec. Co. v, Washington
Terminal Co., 44 AppDC 470.
Georgia. Flowery Branch Gin &
Oil Co, v. Shore, 20 GaApp 361, 93
SE 70.
Illinois. Continental Inv. & Loan
Soc. v. Schubnell, 63 IllApp 379.
Indiana. McCague v. New York
Cent. & St. L. R. Co., 225 Ind 83, 71
NE2d 569, 73 NE2d 48-.
Iowa. Hanna v. Central States
Elec. Co., 210 la 864, 232 NW 421;
State v. Miller, 217 la 1283, 252 NW
121.
Kansas. Merrick v. Missouri-
Kansas-Texas R. Co., 141 Kan 591,
42 P2d 950.
Massachusetts. Roselli v. Rise-
man, 280 Mass 338, 182 NE 567;
Hathaway v. Checker Taxi Co., 321
Mass 406, 73 NE2d 603.
Nebraska. Barton v. Shall, 70
Neb 324, 97 NW 292.
Nevada. State v. Clarke, 48 Nev
134, 228 P 582.
New Hampshire. Harris v. Smith,
71 NH 330, 52 A 854.
New York. Ebenreiter v. Dahl-
man, 19 Misc 9, 42 NYS 867.
North Carolina. Hampton v. Nor-
folk & W. R. Co., 120 NC 534, 27
SE 96, 35 LRA 808; State v. Her-
ron, 175 NC 754, 94 SE 698; Harri-
son v. Norfolk-Southern R. Co., 184
NC 86, 113 SE 678.
Ohio. Eli v. State, 3 OLA 443.
But a general exception is suffi-
cient where the charge omits to ex-
plain the issue, even though the
475
PRESERVATION OF ERROR FOR REVIEW
173
An exception merely describing the subject treated by the
court in an oral charge is insufficient.54
The court's attention, among other things, must be called to
such defects as vagueness, ss any inaccuracies of statement,56
assumption of facts,57 inconsistencies,58 erroneous definitions,59
and argumentativeness.60
An exception is not sufficiently specific which merely states
that the charge presents "improper measure of damages."61 It
attorney who takes such exception
does not call attention of the court
to such omission, and does not ask
a further explanation of the issues.
Telinde v. Ohio Trac. Co., 109 OhSt
125, 141 NE 673.
Where the issue of contributory
negligence is developed by the evi-
dence, and the court fails to charge
upon the burden of proof as to that
issue, a general exception to a
charge otherwise correct does not
bring in review such failure to
charge. Bradley v. Cleveland R.
Co., 112 OhSt 35, 146 NE 805.
The failure of counsel to point out
to the court omissions and errors in
the charge works estoppel of error.
Miller v. Hempy, 1 OLA 781.
Oklahoma. Duroderigo v. Cul-
well, 52 Okl 6, 152 P 605.
Oregon. Erb v. Shope, 140 Or
253, 12 P2d 308; Weinstein v. Wheel-
er, 141 Or 246, 15 P2d 383.
Pennsylvania. Sikorski v. Phila-
delphia & R. Ey. Co.r 260 Pa 243,
103 A 618 (minute particularization
not required); Sgier v. Philadelphia
& R. Ry. Co., 260 Pa 343, 103 A
730.
Rhode Island. Ralph v. Taylor,
33 RI 503, 82 A 279.
South Carolina. Carter & Co. v.
Kaufman, 6-7 SC 456, 45 SE 1017.
South Dakota. Werth v, David-
son, 59 SD 300, 239 NW 751.
Texas. Panhandle & S. P. Ry.
Co. v. Wright-Herndon Co. (TexCiv
App), 195 SW 216; Baker Co. v.
Turpin (TexCivApp), 53 SW2d 154;
McDonald v. Cartwright (TexCiv
App), 72 SW2d 337.
Vermont. In re Chisholm's Will,
93 Vt 453, 10 A 393.
Virginia. Hickerson v. Burner,
186 Va 66, 41 SE2d 451.
Wisconsin. Lee v. Hammond, 114
Wis 550, 901 NW 1073.
54 Ex parte Cowart, 201 Ala 55,
77 S 349.
55 Little Cahaba Coal Co. v. Ar-
nold, 206 Ala 598, 91 S 586; St.
Louis, I. M. & S. Ry. Co. v. Walker,
93 Ark 457, 125 SW 135; Rogers
v. Robertson, 142 Ark 210, 218 SW
206 (improper use of word); Tex-
arkana & Ft. S. Ry. Co. v. Adcock,
149 Ark 110, 231 SW 866; Huckaby
v. Holland, 150 Ark 85, 233 SW 913.
56 Arkansas. Hamburg Bank v.
George, 92 Ark 472, 123 SW 654;
Murry v. State, 150' Ark 461, 234
SW 485.
Iowa. Willis v. Schertz, 188 la
712, 175 NW 321.
New Jersey. Thibodeau v. Ham-
ley, 95 NJL ISO, 112 A 320.
' 57 St. Louis Southwestern Ry. Co.
v. McLaughlin, 129 Ark 377, 196 SW
460.
38 Pistorio v. Washington R. &
E. Co., 46 AppDC 479; Dawson
Paper Shell Pecan Co. v. Montezuma
Fertilizer Co., 19 GaApp 42, 90
SE 984.
«9 Banks v. State, 133 Ark 169,
202 SW 43; Guerin v. State, 150
Ark 295, 234 SW 26. But see
Trotter v. State, 148 Ark 466, 231
SW 177; Robinson v. State, 149 Ark
1, 231 SW 2.
60 Goldstein v. Smiley, 168 111
438, 48 NE 203.
6 * Duane Jones Co. v. Burke, 306
NY 172, 117 NE2d 237; Chase Bag
Co. v. Longoria (TexCivApp), 45
SW2d 242; Abilene & S. Ry. Co.
v. Herman (TexCivApp), 47 SW2d
915.
§173
INSTRUCTIONS — RULES GOVERNING
476
is too general merely to except to an instruction on the ground
that "it is an incorrect statement of the law under the facts";62
or that it is "confusing and misleading/'63
A general objection is not sufficient to call the attention of
the court to the fact that words used in the instruction should
be defined.64 Where an exception is taken by arranging in divi-
sions a number of extracts from the charge, without indicating
any specific error, the appellate court will be justified in declining
to consider it.65
Objection to form as distinguished from substance must be
specifically made.66
An exception to an instruction as given does not raise the
question of whether there was error in failing to give another or
further instruction.67 Errors claimed to have been committed by
the trial court in refusing to instruct as requested must be
specifically pointed out.68 It is not enough to merely except to
the court's refusal to give "requested instruction No. 15."69
The rule is the same in criminal cases. The exception must
point out the particular point claimed to be erroneous.70 It is
62 Baltimore & 0. S. W. Ry. Co.
v. Spaulding, 21 IndApp 323, 52 NE
410; Nelson v. Owens, 166 Wash
647, 8 F2d 301; Lunz v. Neuman,
48 Wash2d 26, 290 P2d 697.
63 King's Indiana Billiard Go. v.
Winters, 123 IndApp 110, 106 NB2d
713; McCue v. McCue, 100 Conn
448, 123 A 914.
64Kirby v. Lower, 139 MoApp
677, 124 SW 34; Grow v. Utah Light
& Ry. Co., 37 Utah 41, 106 P 514.
«s Hampton v. Ray, 52 SC 74,
2$ SE 537.
ee Ft. Smith <& W. Ry. Co. v. Mes-
sek, 96 Ark 243, 131 SW 686, 966;
Fort Worth & D. C. Ry. Co. v. Ama-
son (TexCivApp), 239 SW 359.
67 Lang v. Clark, 85 Vt 222, 81
A 625.
68 Duncan v. Rhomberg, 212 la
389, 236 NW 638.
69 Nelson v. Owens, 166 Wash
647, 8 P2d 301.
70 Federal. Gilson v. United
States, 258 F 58S.
The failure of the court to in-
struct the jury that certain record
evidence was admitted as to one
defendant only cannot be assigned
as error where no objection thereto
was made on behalf of the other de-
fendants. Foster v. United States,
178 F 165; Dawson v. United States,
10 F2d 106; Strauss v. United
States, 13 F2d 122; English v.
United States, 30 F2d 518.
Alabama. McGee v. State, 178
Ala 4, 59 S 573; Beech v. State,
205 Ala 342, 87 S 573; Brown v.
State, 17 AlaApp 30', 81 S 366;
Bowling v. State, 18 AlaApp 231,
90 S 33; Mayhall v. State, 18 Ala
App 290, 92 S 33; Hampton v.
State, 18 AlaApp 402, 92 S 517.
A single objection to a part of a
charge involving several proposi-
tions, some of which are correct,
is properly overruled. Sanders v.
State, 181 Ala 35, 61 S 336.
Arkansas. Jackson v. State, 94
Ark 169, 126 SW 843; Adkisson v.
State, 142 Ark 15, 218 SW 165;
Markham v. State, 149 Ark 507, 233
SW 676 (not enough to request in-
structions on subject); Coppersmith
v. State, 149 Ark 597, 233 SW 777.
Florida. Davis v. State, 91 Fla
512, 107 S 632.
Georgia. Mitchell v. State, 18
GaApp 501, 89 SE 602.
Louisiana. State v, Scott, 163 La
477
PRESERVATION OP EEEOE FOE EEVIEW
§174
not a sufficient exception merely to state that the defendant ob-
jects to the instructions because they do not adequately present
an affirmative theory of defense,71 or that the charge is "in-
sufficient,"72 or that "the court does not properly instruct the
jury as to the law of self -defense."73 An objection to a charge
on insanity is not sufficiently specific which states that such
charge "makes it more onerous on the defendant and does not
correctly charge the law on insanity/'74
In some states, a general exception is sufficient to reach an
instruction invading the province of the jury,75 or which is in-
herently erroneous.76
§ 174. General objections or exceptions to entire charge.
A general objection or exception to an entire charge will be
disregarded if any of the instructions given are correct.
The rule as stated is supported by many cases.77 It does
not help if the objection to the instructions as a whole are also
to each clause separately.78
25, 111 S 483; State v. Covington,
169 La 939, 126 S 431.
Massachusetts. Commonwealth v.
Congdon, 265 Mass 166, 165 NE 467.
Nebraska. Goff v. State, 89 Neb
287, 131 NW 213.
New Jersey. State v. Whittick, 7
NJMisc 293, 145 A 229.
New Mexico. State v. Orfanakis,
22 NM 107, 159 P 674.
North Carolina. State v. Bow-
man, 152 NC 817, 67 SE 1058.
An exception to a charge must
distinctly point out the particular
part thereof claimed to be erroneous
and exceptions will be disregarded
where the accused by his exceptions
covers some instructions that were
erroneous and some that were not.
State v. Bowman, 152 NC 817, 67 SE
1058.
Oklahoma. Roth v. State, 52 Okl
Cr 15, 2 P2d 595.
Pennsylvania. Commonwealth v.
Ford, 86 PaSuper 483.
Rhode Island. State v. Wagner
(RI), 86 A 147.
South Carolina. State v. Crosby,
88 SC 98, 70 SE 440.
Texas. Walker v. State, 68 Tex
Cr 346. 151 SW 822; McDonald v.
State, 77 TexCr 612, 179 SW 880;
James v. State, 86 TexCr 598, 219
SW 202; Morris v. State, 102 TexCr
578, 279 SW 273; Magana v. State,
115 TexCr 7, 26 SW2d 1072 (the
statute requiring- the exception to
be definite); Wiggins v. State, 115
TexCr 434, 27 SW2d 236; Maloney
v. State, 119 TexCr 273, 45 SW2d
216; Stanley v. State, 120 TexCr
450, 48 SW2d 279.
Utah. State v. Riley, 41 Utah
225, 126 P 294; State v. Warner,
79 Utah 500, 291 P 307.
Vermont. State v, Lucia, 104 Vt
53, 157 A 61.
7 1 Mathis v. State, 121 TexCr
131, 50 SW2d 312.
72 Jennings v. State, 122 TexCr
124, 54 SW2d 10-2.
73 Malin v. State, 122 TexCr 650,
57 SW2d 167.
74McKenny v. State, 105 TexCr
353, 288 SW 465.
75 Union Seed & Fertilizer Co. v.
St. Louis, L M. & S. Ry. Co., 121
Ark 585, 181 SW 898.
7«Yaffee v. Ft. Smith Light &
Trac. Co., 153 Ark 416, 240 SW 705;
Missouri Valley Bridge & Iron Co.
v. Malone, 153 Ark 454, 240 SW 719.
See also Strunks v. Payne, 184 NC
582, 314 SE 840.
77 Federal. Burns v. United
States, 274 US 328, 71 LEd 1077,
174
INSTRUCTIONS — RULES GOVERNING
478
47 SupCt 650; Palmer v. Hoffman,
318 US 109, 87 LEd 645, 63 SupCt
477, 144 ALR 719 (which involved
a personal injury case brought in
a federal court on the ground of
diversity of citizenship) ; Globe Furn.
Co. v. Gately, 51 AppDC 367, 279
F 1005; Donegan v. United States,
296 F 843; American Glycerin Co.
v. Brown, 30 F2d 316,
Alabama. Postal Tel. Cable Co.
v. Hulsey, 115 Ala 193, 22 S 854;
Sheffield Co. v. Harris, 183 Ala 357,
61 S 88; Birmingham Waterworks
Co. v. Justice, 204 Ala 547, 86 S
389; Belt Automobile Indem. Assn.
v. Endsley Transfer & Supply Co.,
211 Ala 84, 99 S 787; Sulser v.
Sayre, 4 AlaApp 452, 58 S 758;
Addington v. State, 16 AlaApp 10,
74 S 846; Shoexnake v. State, 17
AlaApp 461, 86 S 151 (rule applies
to oral instructions).
It is the rule in criminal cases
that an exception to an entire charge
will not avail if the charge contains
a single correct proposition. Rags-
dale v. State, 134 Ala 24, 32 S 674.
But see Birmingham v. Latham, 230
Ala 601, 162 S 675.
Arkansas. Darden v. State, 73
Ark 315, 84 SW 507; Young v.
Stevenson, 75 Ark 181, 86 SW 1000;
L. J. Smith Constr. Co. v. Tate, 151
Ark 278, 237 SW 83; Aydelotte v.
State, 170 Ark 1192, 281 SW 369.
Colorado. Adams Exp. Co. v.
Aldridge, 20 ColoApp 74, 77 P 6.
Florida. Thomas v. State, 47 Fla
99, 36 S 161.
Georgia. Oats v. Jones, 136 Ga
704, 71 SE 1097; Gore v. State, 162
Ga 267, 134 SE 36; Guthrie v.
Harper, 167 Ga 588, 146 SE 320.
Illinois. Louthan v. Chicago City
Ry. Co., 198 IllApp 329.
Indiana. State v. Ray, 146 Ind
500, 45 NE 693; Habich v. Uni-
versity Park Bldg. Co., 177 Ind 193,
97 NE 539; Chicago & E. I. R. Co.
v. Coon, 48 IndApp 675, 93 NE 561,
95 NE 596; Cathcart v. Brewer, 70
IndApp 304, 123 NE 358.
Kansas. Standard Life & Ace.
Ins. Co. v. Davis, 59 Kan 521, 53 P
856 (18 distinct instructions, many
of which were unobjectionable — gen-
eral objection) ; Carter v. Carter, 6
KanApp 923, 50 P 948.
Massachusetts. Blanchard Lbr.
Co. v. Maher, 250 Mass 159, 145 NE
62.
Michigan. Tupper v. Kilduff, 26
Mich 394.
Minnesota. Peterson v. Great
Northern Ry. Co., 159 Minn 308, 199
NW 3.
Nebraska. Bennett v. McDonald,
52 Neb 278, 72 NW 268.
New Jersey. Thibodeau v. Ham-
ley, 95 NJL 180, 112 A 320.
New Mexico. Hagin v. Collins, 15
NM 621, 110 P 840.
New York. Brozek v. Steinway
Ry. Co., 161 NY 63, 55 NE 395.
North Carolina. State v. Hall,
132 NC 1094, 44 SE 553; Quelch v.
Futch, 175 NC 694, 94 SE 713;
Bradley v. Camp Mfg. Co., 177 NC
153, 98 SE 318; Buchanan v. Cran-
berry Furnace Co., 178 NC 643, 101
SE 518; Fox v. Texas Co., 180 NC
543, 105 SE 437.
Ohio. Shaffer v. Cincinnati, H.
& D. Ry. Co., 14 OhCirCt 488, 8 Oh
CirDec 66. See Industrial Comm.
of Ohio v. Likens, 23 OhApp 167,
155 NE 414, for instance when gen-
eral exception held sufficient.
Oklahoma. Glaser v. Glaser, 13
Okl 389, 74 P 944; Denson v. Fowler,
56 Okl 670, 155 P 1184; Farmers
Union Coop. Gin Co. v. Squyres, 193
Okl 578, 145 P2d 949.
Oregon. Reimers v. Pierson, 58
Or 86, 113 P 436; Hahn v. Mackay,
63 Or 100, 126 P 12, 991; Hill v.
Wood, 142 Or 143, 19 P2d 89.
Pennsylvania. Felo v. Kroger
Groc. & Baking Co., 347 Pa 142, 31
A2d 552.
South Dakota. Reeves v. National
Fire Ins. Co., 41 SD 341, 170 NW
575, 4 ALR 1293.
Texas. Stedman Fruit Co. v.
Smith (TexCivApp), 45 SW2d 804.
Utah. Smith v. Columbus Buggy
Co., 40 Utah 580, 123 P 580; Ramp-
ton v. Cole, 52 Utah 36, 172 P 477.
Vermont. Needham v. Boston &
479
PRESERVATION OP ERROR FOR REVIEW
§175
But in some states a general objection or exception to the
court's charge is sufficient to preserve error if the charge is
fundamentally defective.79 In Ohio, it will preserve any pre-
judicial error, except one of omission.80
The rule is the same where there is a general exception
or objection to the refusal of a series of requested instructions
and any of them are unsound.8 ' In a case where three requests
to charge were written on the same sheet of paper and numbered,
but not torn apart, and the court refused them collectively, it
was held that a general exception to such refusal would not lie
if any one of the charges were correctly refused.82
§ 175. Waiver of objections and exceptions.
An objection or exception will be considered as waived if
the party entitled to object fails to do so or by his conduct
shows an intention to abandon the right.
To say that an aggrieved party waives his right to object
or accept if he fails to do so is simply another way of stating
that he has not preserved a ground for appeal.83 But a party
Alabama. Pearson v. Adams, 129
Ala 157, 29 S 977.
Indiana. Rastetter v. Reynolds,
160 Ind 133, 6& NE 612.
Massachusetts. Randall v. Peer-
less Motor Car Co., 212 Mass 352,
99 NE 221.
Nebraska. South Omaha v. Powell,
50 Neb 798, 70 NW 391.
New York. Barker v. Cunard S.
S. Co., 157 NY 693', 51 NE 1089.
South Dakota. Avery Co. v. Peter-
son, 41 SD 442, 171 NW 204.
Wisconsin, Haueter v. Marty, 150
Wis 490, 137 NW 761. But see
Wisconsin Stat. § 270.39.
82 Pearson v. Adams, 129 Ala 157,
29 S 977.
83 See § 170, supra.
Instructions not excepted to be-
come the law of the case:
Federal. The court is not re-
quired to go through all the requests
and weed out the good from the bad;
the errors and omissions should be
pointed out. Silkworth v. United
States, 10 F2d 711.
Arkansas. Ward Furn. Mfg. Co.
v. Pickle, 174 Ark 463, 295 SW 727
(omitting defense of assumed risk).
Kentucky. Dotson v. Common-
wealth, 204 Ky 658, 265 SW 2$,
M. B. Co., 82 Vt 518, 74 A 226;
Usher v. Severance, 86 Vt 523, 86 A
741; Barnard v. Leonard, 91 Vt 369,
100 A 876; State v. Long, 95 Vt
485, 115 A 734; State v. Haskins
(Vt), 139 A2d 827.
Washington. Rush v. Spokane
Palls & N. Ry. Co., 23 Wash 501, 63
P 500.
West Virginia. Ocheltree v. Me-
Clung, 7 WVa 232.
Wisconsin. Hayes v. State, 112
Wis 304, 87 NW 1076; Elwell v.
Bosshard, 151 Wis 46, 138 NW 46.
But see Wisconsin Stat. § 270.39.
78 Gardner v. United States, 144
CCA 629, 230 F 575; Savage v.
Milum, 170 Ala 115, 54 S 180; Gat-
tavara v. General Ins. Co., 166 Wash
691, 8 P2d 421.
79 Steele v. France, 363 Pa 165,
69 A2d 368; Knight v. Allegheny
County, 371 Pa 484, 92 A2d 225.
80 New York Life Ins. Co. v. Hos-
brook, 130 OhSt 101, 3 OhO 138, 196
NE 888; Karr v. Sixt, 146 OhSt 527,
33 OhO 14, 67 NE2d 331.
8 * Federal. Otis Elev. Co. v.
Luck, 120 CCA 558, 202 F 452; Duna-
gan v. Appalachian Power Co., 33
F2d 876, 68 ALR 1393.
§175
INSTRUCTIONS — RULES GOVERNING
480
may waive his right to except or object by conduct other than
mere failure to object, that is, by conduct showing his intention
to abandon the right.84
An instruction is regarded as accepted when there is no ex-
ception after modification.85 Where a party fails to except to
instructions given, he is precluded, upon review, from complain-
ing of error on the part of the trial court in refusing requests
conflicting therewith.86
New York. Schweinburg v. Alt-
man, 145 AppDiv 377, 130 NTS 37;
Grimm v. Wandell, 140 NYS 391.
South Dakota. Lallier v. Pacific
Kiev. Co., 25 SD 572, 127 NW 558;
State v. Krogh, 47 SD 314, 198 NW
559.
84 Federal. Barnes & Tucker
Coal Co. v. Vozar, 141 CCA 579,
227 F 25; Standard Oil Co. v.
Sutherland, 159 CCA 403, 247 F 309;
Wood v. W. E. Sexton Co., 275 F
660.
Arkansas. Evins v. St. Louis &
S. F. R. Co., 104 Ark 79, 147 SW
452.
Connecticut, O'Connor v. Zavari-
tis, 95 Conn 111, 110 A 878.
Iowa. Joyner v. Interurban Ry.
Co., 172 la 727, 154 NW 936.
Massachusetts. Rand v. Farquhar,
226 Mass 91, 115 NE 286.
Minnesota. Nelson v. Chicago, M.
& St. P. Ry. Co., 139 Minn 52, 165
NW 866.
Montana. Hawley v. Richardson,
60 Mont 118, 198 P 450.
New York. A party desiring fuller
instruction on a particular issue
after presenting request must ex-
cept to the refusal of the court so
to charge. Robinson v. Insurance
Co. of North America, 198 NY 523,
91 NE 373.
North Carolina. State v. Lan-
caster, 202 NC 204, 162 SE 367.
Oklahoma. Watson v. Doss, 151
Okl 132, 3 P2d 159; Walkenhorst
v. State, 38 OklCr 180, 259 P 663;
Jarman v. State, 57 OklCr 226, 47
P2d 220.
Pennsylvania. Fern v. Pennsyl-
vania R. Co., 250 Pa 487, 95 A 590.
South Carolina. State v. Rouse,
138 SC 98, 135 SE 641.
South Dakota, Where plaintiff
requests that a charge be reduced to
writing, but the court proceeds to
charge orally, no objection to such
procedure being made at the time,
the plaintiff excepting at the con-
clusion of the charge, and where
the charge is then transcribed in
longhand by the reporter at the
court's direction, without objection
from plaintiff, and is then delivered
to the jury, the plaintiff cannot com-
plain of irregularities, for, if there
were any, he will be held to have
waived them. Kirby v. Berguin,
15 SD 444, 90 NW 856.
Texas. Taylor v. Lafevers (Tex
CivApp), 198 SW 651; Nabors v.
Colorado & S. Ry. Co. (TexCivApp),
210 SW 276; Colorado & S. Ry. Co.
v. Rowe (TexCivApp), 224 SW 928;
Chase Bag Co. v. Longoria (TexCiv
App), 45 SW2d 242.
Vermont. H. M. Farnham & Sons
v. Work, 99 Vt 446, 134 A 603.
Washington. Collins v. Terminal
Transfer Co., 98 Wash 597, 168 P
174; Pierce County ex rel. Belling-
ham v, Duffy, 104 Wash 426, 176
P 670.
West Virginia. State v. Huffman,
69 WVa 770, 73 SE 292 (criminal
case).
Wyoming. Brown v. State, 37 Wyo
155, 259 P 810.
85 Arkansas. Error is waived by
asking a modification of an instruc-
tion which does not cover the error.
Southern Anthracite Coal Co. v.
Bowen, 93 Ark 140, 124 SW 1048.
Minnesota. Torkelson v. Minne-
apolis & St. L. R. Co., 117 Minn 73,
134 NW 307.
Mississippi, Williams v. State, $5
Miss 671, 49 S 513 (criminal case).
86Delmonica Hotel Co. v. Smith,
112 la 659, 84 NW 906.
481 PRESERVATION OF ERROR FOR REVIEW § 175
If the defendant fails to object when instructions are given
because they are not reduced to writing, he will not later be
heard to complain, for his failure constitutes a waiver.87 A party
who fails to object on a certain ground will be held to have
waived that objection though he files other objections.88
Where an instruction which is erroneous is given by con-
sent of both parties, neither can be heard to complain of another
instruction which is open to the same objection.89 If defendant
in a criminal case states when the charge is given to the jury
that it is satisfactory, he cannot later object to the instruc-
tions.90 Where a charge is on facts conceded by a party to be
true, he cannot complain of the court's action in giving it.9 '
But the failure of the defendant to object to an erroneous
instruction on the measure of damages has been held not to
waive an exception to the reception of incompetent evidence
as to such damages.92 The failure to except to an instruction con-
cerning issues raised by incompetent evidence is held not to
eliminate valid exceptions to the admission of the incompetent
evidence on appeal.93 The failure to object to the general charge
is held not to waive the right to request instructions and except
to their refusal.94
Counsel's temporary absence when the court began his charge
is not a waiver to object to fundamental errors.95 A party does
not waive his right for failing to object to court's charge taking
away an issue of fact from jury, if counsel insisted throughout
trial that the issue should be submitted to jury.96
87 Bailey v. Commonwealth, 214 9 ' Bedenbaugh v. Southern Ry.
Ky 703, 283 SW 1041. Co., 69 SC 1, 48 SE 53.
88 Miller v. Bohanan, 181 la 1207, 92 Smith v. Appleton, 155 AppDiv
165 NW 317. 520, 140 NYS 565.
89 Arkansas. Chicago, R. I. & P. B3 United Display Fixture Co. v.
Ry. Co. v. Smith, 94 Ark 524, 127 S. & W. Bauman, 183 NYS 4.
SW 715. 94 Rabinowitz v. Smith Co. (Tex
Illinois. Boecker v. Naperville, CivApp), 190 SW 197. But see
166 111 151, 48 NE 1061. Roberts v. Houston Motor Car Co.
Maryland. See Weitzel v. List, (TexCivApp), 188 SW 257.
161 Md 28, 155 A 425. 9S West Texas Transp. Co. v. Hash
Utah. See State v. Durfee, 77 (TexCivApp), 43 SW2d 152.
Utah 1, 290 P 962. 96 Freeman Use of Weinstock v.
d°Shepard v. United States, 62 Miners Sav. Bank, 144 PaSuper
F2d 683. 540, 19 A2d 514.
CHAPTER 9
PRACTICAL SUGGESTIONS
Section. Section.
180. Instructing the jury. 184. Demurring to evidence — Non-
181. Preparing and submitting spe- suit — Directing a verdict.
cial interrogatories. 185. Exceptions and bills of excep-
182. Taking a special verdict. tions.
183. The verdict and its incidents.
§ 180. Instructing the jury.
It is common to say that in both criminal and civil cases, all
questions of law are decided by the court, and all questions of
fact by the jury. Even where it is held that the jury are the
exclusive judges of the law and the facts, the prevailing rule
is that it is, nevertheless, the duty of the court to state the law
to the jury. There is, obviously, an inconsistency here. If the
jury are the exclusive judges of the law, as well as of the facts,
Jt seems little else than an idle ceremony for the court to in-
struct them as to the law. The inconsistency is supposedly dis-
sipated by ruling that the instructions are advisory merely and
not obligatory. But this by no means removes the inconsistency.
It is true, however, that instructions delivered by a judge of
learning and probity will, in most cases, exert a great influence
over the minds of jurors. So it is important to secure a favor-
able charge, even in states where the jury is the judge of the
law as well as of the facts.
In many jurisdictions it is not true in practice that the jury
are the exclusive judges of the facts in civil cases, although in
theory it is everywhere asserted. A judge who undertakes to
comment upon the bearing and weight of evidence cannot avoid
some expression of opinion upon the facts. He does influence
the jury, even though he may declare that they are the exclu-
sive judges of the facts. The American courts, as a general
rule, do not follow this practice, but charge exclusively upon
questions of law, leaving the facts entirely to the jury. This
is the only practice which can be pursued without overturning
the theory that the jury are the exclusive judges of the facts.
It is the practice which enables parties to get their exceptions
to instructions fully and clearly in the record.
Where the practice of judges commenting on evidence pre-
vails, it is not possible to reduce to writing all the instructions
which a party desires the court to give the jury. The most that
482
483 PRACTICAL SUGGESTIONS § 180
can be done, unless the facts are few and simple, is to hand in
written specific propositions of law which the party desires shall
be stated to the jury as part of the charge of the court. Where
the court instructs the jury only upon matters of law, you, as
the advocate, in every case, should prepare and submit to the
court written requested instructions. This is the safe rule, and
is "honored in the observance," no matter how learned and care-
ful the presiding- judge may be. It is one thing to know the
principles of the law, and another to recall and apply them to the
particular case when occasion demands. This is your job as
an advocate. You must bring into view the governing principles
and array them so that they will fit the facts developed by the
evidence. You, it is presumed, have studied the particular case
and have ascertained the governing principles. If the presump-
tion does not hold good, your duty has not been faithfully per-
formed. If the presumption is valid, as it ought to be, then the
case has been to you one of especial interest and study, arousing
and quickening all your faculties, so that no point has been
overlooked and no principle suffered to pass unnoticed. Like the
specialist, who studies one thing, you are better prepared on the
particular case than even the most learned judge who has given
the case no special study. No judge has reason to take offense
because written proposed instructions covering all points are
submitted to him, for in submitting them, you do not impugn the
judge's learning or ability, but, in theory at least, however it
may be in reality, you simply refresh the memory or excite the
attention of the judge. But here, as elsewhere, a plain duty
must never be left undone for fear of giving offense. A judge
never sees an affront in a courteous performance of duty. But
you must not forget that instructing the jury on the law is the
duty of the court and not yours.
Requests for instructions should be written, as far as possible,
when there is time for deliberate thought, and not during the
turmoil and excitement of the trial. They cannot be dashed off
at white heat, like the words of an address to the court or jury,
for each word should be carefully weighed before finding its place
in an instruction. The best time to write a tentative draft of the
instructions is while you are preparing for the trial. This will
tend to clarify your own ideas, enable you to exercise greater care
in your choice of words, and state the legal principles bearing on
the case impartially, but with clearness, power, and vigor. At
the same time, you will be able to compare the proposed instruc-
tion you have prepared with approved instructions and thus
avoid error. Due to unforeseen developments during the course
of the trial it may be necessary to revise certain of the proposed
§ 180 INSTRUCTIONS— RULES GOVERNING 484
instructions, but this can be done much more readily if you
have previously prepared a carefully worded tentative draft. A
good method of preparing a case for trial is to obtain a copy
of approved instructions, given in a similar case already tried
and, with these as suggestiom, determine the legal propositions
that will arise in your case.
You should limit your requests for instructions. Submitting to
the court a large number of requested instructions tends to con-
fuse the jury rather than to enlighten them. At the same time,
it places an unreasonable and unnecessary burden on the court.
It was never contemplated that the court should be required to
give a vast number of instructions amounting to a lengthy ad-
dress. A sincere attempt should be made to limit them to a
few concise statements of the law applicable to the facts. The
vice of requesting too many instructions is well illustrated by
an opinion rendered in a court of last resort in which it was
said, "The appellant requested the court to give eighty-nine
instructions, of which the court gave forty-four and refused
forty-five, besides giving twenty-six requested by the appellee.
Many of the instructions refused were mere reiterations, in
different language, of the rules of law declared in the ones which
the court gave. Some of them were erroneous in declaring, in
positive language, rules which should have been modified by
some qualifying phrase, such as 'in the exercise of ordinary
care/ Some of them were couched in the form of an argument
that the rules of law declared should be applied to what were
assumed to be the facts of this case, and it is possible that
some of them declared correct rules of law not covered by the
instructions given. But where the issues are no broader than
were joined in this case, a request for eighty-nine instructions,
covering fifty-six typewritten pages, is almost equivalent to
an invitation to commit an error in choosing the ones to be
given. And without deciding whether any of the refused in-
structions should have been given, in addition to the seventy
given by the court, we must decline to extend this opinion by
analyzing those given in the light of those requested." '
1 Terre Haute, I. & E. Trac. Co. logical, and complete charge and
v. Phillips, 191 Ind 374, 132 NE 740. was sustained on appeal. The re-
in a case tried before a learned viewing court said: "Appellant as-
and experienced judge, defendant's signs 29' separate errors, some upon
counsel, at the conclusion of the evi- the court's refusal to give the thir-
dence, handed the judge 35 closely ty-three separate propositions of law
typed pages of requested instruc- requested by it. ... We have ex-
tions and the judge with show of amined them, and considered those
impatience refused to consider them which present material and perti-
because of their volume. He in- nent questions on contested issues
structed the jury in a concise, in the case. The charge given by
485 PRACTICAL SUGGESTIONS § 180
The judge, in most states, may alter and amend proposed
instructions if he chooses to do so, but he is not under any
obligation to undertake the task. If the instructions are not
in terms correct, the court commits no error in refusing them.
But you should not be influenced so much by the fear that your
instructions may not successfully pass the scrutiny of the court
as by a just pride in your work. On appeal a large per cent
of the reversals are grounded on the trial court's error in in-
structing or in failing to instruct.
There is another reason why you should prepare instruc-
tions with care. A proposition of law, strongly, clearly, and
tersely stated is remembered by the jury. A rambling, feeble,
and diffuse statement neither arouses attention nor produces
conviction. Words, well chosen and well arranged, are powerful
in many places, and in few places are they of more force than
in an instruction. Jurors are quick to seize upon strong state-
ments, but slow to apprehend loose and prolix propositions.
In writing proposed instructions, you should assume the at-
titude of the court. What you put into your proposed instruc-
tions, you put there for the use of the court. Zealous and hot
in argument you may be, but cold and impartial you must be
in writing your requested instructions, or else no instruction you
prepare will receive the judge's sanction. As has already been
suggested, it is best to emulate great generals and carefully
plan the campaign before it begins. A hastily drawn instruction
may be so inaccurately worded as to find no favor with the
judge. If it is accepted, it may be the cause of a new trial or
of a reversal.
It certainly is not easy to prepare an instruction. Definition
is always difficult, even in simple matters. In complex and
tangled questions of law and fact, it is a task that often taxes
the mental powers of strong men. Two great virtues in a series
of instructions are, perspicuity of arrangement and clearness
of definition. Logicians have, again and again, asserted the
value of distribution and definition. Where propositions must
be briefly stated, and with great accuracy, as in instructions to
the jury, definition is of the highest importance. Each instruc-
tion asserting a proposition of law must, in a sense at least,
define it. What adds to the difficulty of the work is that the
the court is a complete, plain, and submitted to them. This renders it
direct statement of the rules of law unnecessary to specifically consider
applicable to the case, free from the other errors assigned upon re-
obscurity or argumentation, and it jected instructions submitted by ap-
sufficiently advised the jury of ev- pellant." Pumorlo v. Merrill, 125
ery rule of law involved in the de- Wis 102, 103 NW 464.
termination of the issues of fact
§ 180 INSTRUCTIONS — RULES GOVERNING 486
definition must be in the concrete and not in the abstract. This
is so because it is not enough to state mere abstract rules of
law, but the rules stated must be applied to the facts. And here
it is obvious and of indisputable importance that you must not
only know the rules of law that are applicable to your case,
but you must be thoroughly conversant with the facts, not al-
ways or necessarily as you had developed them from witnesses
in your office before the trial, but as they were developed by
both sides during the trial. Without this thorough knowledge
and grasp of the facts presented, you cannot intelligently apply
the law, no matter how much law you know.
It is seldom safe to copy excerpts from a judicial opinion into
instructions. Thoughts may generally be borrowed with safety,
but not words. Judicial opinions are written for a purpose very
different from that for which instructions are designed. Lan-
guage not out of place in an opinion is very often out of place
in an instruction. Principles are to be extracted from the decided
cases, but not the words in which they are expressed. Words
are but the clothing, and misfits commonly result from borrow-
ing clothing. Cases, although members of one general class,
are seldom so closely alike that what is said in one can be
accurately said in all.
It is sometimes difficult to prepare instructions that will not
invade the province of the jury by assuming facts or the like.
But this danger may generally be avoided by stating them in
a conditional form. For example, this is a brief instruction of
a somewhat general nature that might be proper in an action
for damages for personal injuries caused by the defendant's
negligence: "If you believe from the evidence that the defend-
ant was negligent as alleged in the complaint, that such negli-
gence, if any, was the proximate cause of the injury complained
of, and that the plaintiff was free from contributory negligence,
your verdict should be for the plaintiff." Here invasion of the
province of the jury is avoided by the use of the conditional form
and the phrase "if any." If an instruction is mandatory, be care-
ful to include in it every essential fact or matter.
Out of the foregoing observations emerge certain concrete
principles of law and rules of practice that are recognized and
applied by the courts :
1. As a general rule, whatever is said by the court to the
jury upon the questions of law or of fact involved in the case
may properly be considered as a part of the charge.
2. It is discretionary with the court, in the absence of any
statutory regulation, to instruct the jury of its own motion.
The instructions need not be reduced to writing, unless required
487 PRACTICAL SUGGESTIONS § 180
by statute, except so far as may be necessary to enable counsel
to except.
3. Under the statutes of most of the states written instruc-
tions may be demanded as matter of right.
4. Where special instructions in writing axe requested, the
request should be made in time for the court to give the subject
due consideration. The court has power to require that the
instructions asked be presented before the final arguments to the
jury are made or begun.
5. Although the trial court may be required by statute to
charge or instruct the jury generally, if specific instructions are
desired, they should be duly prepared and presented to the court
with a request that they be given.
6. If instructions are required to be in writing, modifications
of those asked and given must also be in writing.
7. Instructions should be pertinent to the issues and to the
evidence.
8. If there is any evidence fairly tending to support a
party's theory of the case, he is entitled to a hypothetical in-
struction based thereon.
9. Facts in controversy, on which the evidence is conflicting^
must not be assumed.
10. The court should not express any opinion on the weight
of evidence, nor on the credibility of particular witnesses.
11. Undue prominence should not be given to particular
portions of the evidence.
12. It is not error to refuse an instruction unless it is proper
in the very terms in which it is requested.
13. Where an instruction is ambiguous, and likely to mislead
the jury, it may be refused.
14. An instruction may be refused where it is substantially
covered by other instructions.
15. The instructions of the court should be construed to-
gether as an entirety. A mere sentence that might seem
incorrect if taken by itself will not render the instructions
erroneous when properly explained by the context, so that, as
a whole, the law applicable to the case is correctly stated.
16. If the jury are unable to agree, they may sometimes
be recalled for further instructions ; but such instructions should
not be given except in open court, and the presence of the parties
or their counsel should be obtained if possible.
17. An exception to the instructions, or refusal to instruct,
must be taken at the time, or, at latest, before the jury have
rendered their verdict, unless a statute or rule of court other-
wise provides.
§ 181 INSTRUCTIONS^ — RULES GOVERNING 488
18. The exception should be specific, for if the entire charge
is excepted to and any portion thereof is correct, the exception
will be unavailing*.
§ 181. Preparing and submitting special interrogatories.
In many of the states, statutes provide that interrogatories
may be submitted to the jury, requiring them to find specially
upon questions of fact. The practice has prevailed in some
common law jurisdictions, but, as a general rule, now prevails
only in jurisdictions that have adopted a code of civil procedure.
The leading purpose of the statutes is to get the controlling facts
determined, so that the law may be applied to them by the
court. This, however, is not the sole object the statutes were
intended to accomplish.
Interrogatories calling upon the jury to find specially upon
questions of fact are often useful and effective, but it is not pru-
dent to address them to the jury in every case. Jurors do not
view the practice with favor. It is best not to annoy them
with a great number of questions, as is sometimes done, even if
it were proper. It is in general better to submit a few clearly
expressed interrogatories presenting controlling propositions of
fact rather than a great number. It is not wise to frame pro-
posed special interrogatories as to arouse a suspicion that they
were designed to entrap jurors. This suspicion finds its way into
the minds of jurors surprisingly often. If the interrogatories
are direct and clear, appear fair on their face, and as though
asked only for the purpose of eliciting the facts, the probability
is strong that fair and full answers will be returned. But if
suspicion is aroused that they were designed as a check or
restraint, it is quite probable that the jury will lean strongly
against the party submitting the interrogatories.
It is, in some instances, better to take a general verdict with
answers to special interrogatories than to depend entirely upon a
special verdict. When this course is pursued, it is essential if
you have the burden, to be careful to ask no question that may
imperil your case. If you have a hard case, or a case resting
on technical questions, or a case where the strong is arrayed
against the weak, you will do well, as a general rule, to take
a special verdict. This is so for the reason that where a general
verdict is returned, together with answers to interrogatories, the
verdict will prevail, unless there is invincible repugnancy between
it and the answers of the jury. It is, indeed, seldom that the
answers overcome the general verdict. If you hope to prevail on
the answers to special interrogatories, you will, in most cases,
be disappointed. In very few cases will the general verdict be
489 PRACTICAL SUGGESTIONS § 181
controlled by them; so that one who stands upon them has,
at best, an insecure position. Intendments will be made in favor
of the general verdict and against the special answers. This is
so for the reason that the general verdict is presumed to go
to the whole case and award justice upon the law and the evi-
dence, while the answers presumptively cover only isolated ques-
tions of fact. Of course, there are cases where the answers
are of controlling importance, and in such cases, if there is no
reason to anticipate prejudicial answers from the jury, it is well
enough to propound special interrogatories.
If it is desired to keep material facts prominently before the
jury, it is well to propound special interrogatories. This is ex-
pedient in cases where there is reason to apprehend that the
closing address may draw the minds of the jury from the con-
trolling facts, for by this means their minds are directed into
the proper channel. Where, however, you feel strong on the
right and justice of the case and fear only cold legal propositions
or technical rules, you should not ask a single interrogatory.
The expedient course for your adversaries is the very opposite.
There are many cases in which juries have used every effort to
evade interrogatories, without returning answers positively false,
thus clearly proving their readiness to surrender specific points
to what they conceive to be the natural equity or real right of
the case. In cases where there is reason to fear that jurors
will adopt such a course, the best plan is to demand a special
verdict.2 In such cases the address of the counsel who asks the
special verdict should not hint at the effect of the finding,
but should be confined to a discussion of the evidence and its
probative force. The policy of counsel asking the special ver-
dict is to keep from the jury, as far as lies in his power, a knowl-
edge of the ultimate effect of their decision upon the facts. The
policy of opposing counsel, on the other hand, is to inform the
jury as fully and as clearly as possible what the effect will be. A
special verdict prevents the court from informing the jury what
the ultimate result of their conclusions will be, since it dispenses
with general instructions. Where, however, special interrog-
atories are propounded, it is the right, as well as the duty, of the
court to give general instructions, so that, where it is resolved
to let the case go to the jury without instructions, special inter-
rogatories should not be asked, but a special verdict should be
taken.
In cases where special interrogatories can be so framed that
an answer must be favorable to the party, they should always
be propounded. Thus, if a party sues a municipal corporation
2 See § 182, infra.
§ 181 INSTRUCTIONS — RULES GOVERNING 490
for negligently leaving an unguarded excavation in the street,
and the evidence shows that the plaintiff knew of the excava-
tion, it would be politic for the defendant to ask two interroga-
tories: one eliciting the fact of the plaintiff's knowledge; one
asking whether it was light or dark ; for if the first be answered
in favor of the defendant, then an answer to the second, whether
it be that it was light or that it was dark, would probably be
fatal to the plaintiff, since it would convict him of contributory
negligence. It is indeed, true, as a general rule, that interroga-
tories should be asked by the defendant in cases where negligence
is the issue, and where the plaintiff's condition is such as to
enlist the sympathies of the jury or the situation of the de-
fendant such as to excite their prejudices.
Interrogatories are often of great use to a master sued by a
servant for injuries caused by defective machinery. In such cases
the sympathies of the jurors are almost invariably with the
servant. In a general verdict, they will affirm that the servant
had no notice of the defect. But if required to answer inter-
rogatories properly framed, they will be compelled to state such
facts as conclusively show that the plaintiff had knowledge of
the defect and yet remained in the master's service. In other
cases of this general class, jurors, whose sympathies or preju-
dices induce them to find for the maimed or injured person,
will so strongly find upon the question of notice as to entirely
exonerate the master from the charge of negligence. But if
nothing more than a general verdict were demanded, this result
would not be revealed, so that to exhibit it, special interroga-
tories are required. In still other negligence cases, jurors will
find so strongly upon the question of the defendant's negligence
that by proper interrogatories, they will convict the plaintiff of
contributory negligence; in their eagerness to benefit the plain-
tiff, they often so state the facts as to disclose negligence on
the part of the defendant so great and apparent that it must
have been known to the plaintiff.
Interrogatories to the jury, like questions to a witness, are
sometimes so adroitly framed as to seem to require a single
indivisible answer. In truth, more than one question is implied
and the answer is divisible. Such interrogatories perplex a jury,
and frequently mislead them. The safest course is to object to
their form before they are submitted to the jury and to demand
that they be so framed as to prevent misconception. If this
demand is refused, an exception should be taken at once and a
bill tendered. If this course is not deemed expedient, then ask
the court — and ask in writing — to instruct the jury that one
answer may be made to a distinct part of a divisible question,
and another answer to another part.
491 PRACTICAL SUGGESTIONS § 181
It sometimes happens that interrogatories assume facts, and
when this does happen, it is well to ask the court (make the re-
quest in writing) to instruct the jury that they are not bound to
accept as true the assumptions, and that, to ascertain the truth,
they must go to the evidence. It is the right of a party to have
interrogatories answered from the evidence, and he may right-
fully ask the court to so inform the jury.
Where the answers are indefinite or evasive, the proper
course is to ask the court, before the verdict is formally received,
to recommit the interrogatories to the jury, with instructions to
answer them according to the evidence. A motion for a judg-
ment on the answers, notwithstanding the verdict, will not
present the question. That procedure is only effective where the
answers are inconsistent with the general verdict.
In many instances, jurors will not be able to carry the specific
facts of a complicated case in their minds. Special interroga-
tories will bring to mind these forgotten facts and secure a just
statement of them. For this reason, it is often prudent for a
party who desires that specific facts should be remembered to
propound interrogatories, even though he has no reason to dis-
trust the motives of the jury.
Another advantage sometimes gained by submitting special
interrogatories is the effect of the answers to cure error in the
instructions or other irregularities. Of course, they do not al-
ways have this eifect, and it is comparatively seldom that errors
are thus cured. But where they show that the alleged error could
not have affected the jury or prejudiced the prevailing party in
any way, they will generally cure the error. For instance, where
an instruction is not strictly correct, but the answers to special
interrogatories show that the facts are against the complaining
party on the matter in question.
The following rules of practice have been deduced from the
foregoing general considerations:
1. It is generally held in this country, contrary to the old
English rule, that the trial court may, in the absence of a
statutory provision to the contrary, require the jury to answer
special questions or interrogatories in addition to their general
verdict.
2. The form and manner of propounding the interrogatories
are matters in the trial court's discretion unless otherwise pro-
vided by statute.
3. Under the statutes in force in a number of the states, the
submission of special questions or interrogatories to the jury,
and answers thereto, may be insisted upon by either party as
matter of right. In other states, statutes leave the matter in
the trial court's discretion.
§ 181 INSTRUCTIONS — RULES GOVERNING 492
4. Where the statute provides that the court, at the request
of either party "may" submit special questions to the jury, the
matter seems to be discretionary, and the refusal to do so has
been held not to be erroneous; but where the statute provides
that it "shall" be done, the court has no such discretion, but
must comply with a proper request, made in due season.
5. Where the submission of special questions is discretion-
ary the court may withdraw them at any time before they are
answered ; but where the matter is one of right they cannot be
withdrawn over the objection of the party at whose request they
have been properly submitted.
6. A party desiring the submission of special interrogatories
to the jury must make his request and submit his questions to
the court in due season. After argument has commenced may
be too late.
7. The interrogatories should be material, and should call
for answers as to particular facts and not for evidence or con-
clusions of law. If they violate this rule, the court may properly
refuse to submit them to the jury.
8. There is no available error in refusing an interrogatory
where another covering the same point is submitted and
answered.
9. It is no objection that a question is leading; it is, in fact,
better that it should be leading.
10. Where the right to have special questions answered is
conditional upon the return of a general verdict by the jury, it
is not error to refuse an unconditional request irrespective of
whether a verdict is returned.
11. In all proper cases, the jury must answer the interroga-
tories submitted to them fully, fairly, and without evasion.
12. Objections to interrogatories should be made when they
are submitted, or, at least, before the jury retire ; otherwise they
will be considered as waived.
13. Where answers are uncertain or not responsive to the
questions, a motion to have the jury sent back and reanswer
them should be made when the verdict is returned. If a ques-
tion is not answered at all and the jury are discharged without
objection, the right to have such question answered is waived.
14. A statute requiring the verdict to be signed by the
foreman of the jury applies to the answers to interrogatories.
15. Where the special findings of facts by a jury in answer
to interrogatories are, when construed together, irreconcilably
in conflict with the general verdict, they will control it ; but if
they are inconsistent with one another, contradictory, and un-
certain, the general verdict will control.
493 PRACTICAL SUGGESTIONS § 182
16. All reasonable presumptions will be Indulged in favor
of the general verdict and nothing will be presumed in favor of
the special findings.
17. Where, as in case of several paragraphs of complaint and
interrogatories confined to one of them, the special findings do
not cover all the issues and are not inconsistent with the gen-
eral verdict as to other issues, the general verdict may control,
notwithstanding inconsistency as to the issues covered by the
findings.
18. Where a party is entitled to judgment on the special
findings in answer to interrogatories, he should move for judg-
ment thereon, notwithstanding the general verdict; otherwise,
no question concerning the right to such judgment can be made
on appeal.
§ 182. Taking a special verdict.
It is often advisable to take a special verdict, when allowable,
for a special verdict contains only the controlling facts, leaving to
the court the ultimate decision of the cause. By this course a
responsibility is directly fastened upon jurors and they are ^de-
prived of the shelter so often afforded by a general conclusion.
When the law and the facts are blended, jurors, as a general rule,
are not quite so scrupulous as when they are required to find only
upon the facts. General verdicts more readily than special ones
supply a refuge for jurors whose minds are influenced by passion
or prejudice. But if the verdict is special, they cannot so easily
evade the force of the evidence. If there is reason to fear that
improper motives may influence a jury, and the evidence is
strongly against their prejudices, it is, in general, wise to ask
a special verdict.
In cases where the defense is one which a juror is likely to
regard as technical, a special verdict should be demanded. For
example, where the defense is founded upon the statute of
frauds or the statute of limitations or where a discharge in
bankruptcy is relied on, and in like cases, it is, as a general
rule, expedient to take a special verdict. So, too, where one party
is a rich man, or a corporation, and the case is one which is likely
to arouse prejudice, a special verdict will often counteract the
sinister influence of prejudice. It is, indeed, true, as a general
rule, that wherever the case is one strongly appealing to the pas-
sions or prejudices of a jury, the better course is to take a
special verdict. It is of course, implied that the evidence is
favorable to the party who asks a special verdict; for if it is
against him, then he had better take the chances of a general
verdict.
§ 182 INSTRUCTIONS — RULES GOVERNING 494
It is much more hazardous for the party who has the risk of
non-persuasion to ask a special verdict than for the adverse
party, since it is a well-settled rule that if not all the material
facts are found, the party who has the risk will suffer. It is
for this reason that it is usually safer for the defendant than
for the plaintiff to ask a special verdict. The absence of one
material fact may preclude a recovery by the party upon whom
the risk rests, while the statement of one controlling fact may
secure success for the party not thus burdened. It is manifest,
therefore, that the party who has the risk should be very
careful in asking- a special verdict and extremely vigilant in
putting before the jury every material fact. Omission means
disaster. On the other hand, the party to whom one material
fact will bring success will be very unwise if he does not place
that fact in a conspicuous position. It is to be kept in mind,
however, that where there is reason to suspect that the jury
will find for the adversary, it is best not to allow them to see
too clearly the effect the fact will have. Where this is the
case, it is better to somewhat conceal the leading fact by close
association with facts of less importance. These observations
do not apply in states having a statute to the effect that when
any controverted essential fact is not brought to the attention
of the court by request before the case is submitted to the jury,
the issue is deemed submitted for decision to the court.
A special verdict is sometimes a means of preventing defeat
where the judge is unfavorable. Although it is true that the
jury find only the facts, leaving exclusively to the court the duty
of declaring the law, yet the manner of instructing the jury
often exhibits to them the opinion of the judge and induces
them to surrender their own convictions to his opinion. This is
true even where the judge instructs only upon propositions of
law and where there are no errors in his instructions; for
meaning and desire are often conveyed by manner and emphasis
as well as by words. Where the facts are found by the jury,
then the judge can do nothing more than apply the law to the
facts so found, for in such a case there is no necessity for general
instructions. All that the judge can properly do in such a case
is to give appropriate instructions as to the frame of the verdict
and as to general rules of evidence. In doing this there is little
opportunity for intimating his own opinion to the jury.
A special verdict must inquire concerning the controlling
propositions of fact and not the evidence which establishes
them. It is, too, the inferential, or ultimate, and not the evi-
dentiary facts that must be embodied in the verdict. It is not
always easy to discriminate between facts and evidence nor
between facts and conclusions, for the line of separation is very
495 PRACTICAL SUGGESTIONS § 182
often shadowy and indistinct. If there must be error, it is
better to have too much in the verdict than too little; but
care must be taken that there are no material inconsistencies,
for the party who has the risk of non-persuasion may have his
case ruined by inconsistencies and contradictions which neutral-
ize the ultimate facts found in his favor. The nearer a special
verdict can be brought to state fully, yet concisely, the material
ultimate facts, the nearer it is brought to perfection. If it states
mere conclusions and mere evidence without facts, the judgment
must be adverse to him who has the risk, or else a venire de
novo must be awarded. If it is incomplete and inconsistent on
its face, the general rule is that it will be set aside upon the
proper motion. The attorney who prepares or proposes a special
verdict must bring to his work skill and care.
It is not prudent to intrust to anyone but the court the work
of preparing a special verdict. It is a work that calls into exercise
skill and care and should not be done, if it can be avoided, under
pressure or excitement. The young advocate will be wise if he
prepares at least a skeleton of a special verdict in advance of the
trial, and the veteran who pursues a like course will not err. It is
difficult to marshal and array facts, and the work is one that
requires care and thought. In every instance the form of the
verdict which it is proposed to submit to the jury ought to be
in the hands of the court a reasonable length of time before
the case is to be argued to the jury. It is the right of the
court to have a reasonable time to inspect the draft and to pre-
pare the form of verdict to be submitted.
A special verdict, when well drawn, is an excellent method
of getting the facts into the record in cases where there is
reason to believe that an appeal will be necessary. This method
often dispenses with a bill of exceptions, and renders it un-
necessary to encumber the record with the evidence. Where,
however, the conclusions of the jury are not sustained by the
evidence or are contrary to the evidence, it is necessary to
incorporate the evidence in a bill of exceptions ; but this course
is only advisable where there is no material evidence supporting
the conclusions ; if there is a conflict of evidence, the appellate
court will not disturb the findings of the jury.
The following are general rules invoked in respect to special
verdicts :
1. A special verdict consists of findings of the facts in a
case by the jury, leaving the law to be applied to the facts by
the court.
2. In the absence of any statutory provision upon the sub-
ject, the jury cannot be required to return a special verdict.
§ 183 INSTRUCTIONS — RULES GOVERNING 496
3. Where the jury have, by statute, the right to render or
a party has the right to demand a special verdict, refusal of the
court, upon request of a party, to submit to the jury a form for
the verdict is error,
4. It is proper and, indeed, customary for the counsel to
prepare a form of special verdict for the jury, subject to the
correction of the court.
5. Strictly speaking, a special verdict is never accompanied
by a general verdict, but in some jurisdictions the jury may be
required to answer interrogatories in connection with their gen-
eral verdict and in case of an irreconcilable conflict between the
answers to interrogatories and the general verdict the former
will control.3
6. A special verdict should find facts and not evidence ; nor
should it state conclusions of law.
7. Where a special verdict, otherwise sufficient, contains
findings of evidence, conclusions of law, or matters without the
issues, such portions will be disregarded by the court in ren-
dering judgment.
8. Nothing can be taken by the court by implication or in-
tendment in favor of a special verdict, and it cannot be aided by
the evidence or any other extrinsic matter, excepting that it may
be supplemented by undisputed facts.
9. To justify a judgment in favor of the party on whom the
burden of the issues rests, the special verdict must find all the
facts controverted necessary for him to prove in order to recover.
10. A party deeming himself entitled to judgment on the
special verdict should move for judgment thereon; and if his
motion is overruled, he should except.
11. Where a defective special verdict is tendered by the
jury, the court should either send the jury out to perfect their
verdict or grant a venire de novo, upon motion therefor, in a
proper case.
§ 183. The verdict and its incidents.
Receiving the verdict is not always a pleasant duty. The
moment the twelve jurors file into the box with their verdict the
anxiety of the advocate becomes intense. The interval between
the time the jurymen take their seats and the announcement of
the verdict is a trying one. Many an advocate's face has paled
and his heart grown still in that time of dreadful suspense.
Receiving the verdict is a duty that tries an advocate as few
things try mortals. It is, nevertheless, a duty that must be
performed.
3 See § 181, supra.
497 PRACTICAL SUGGESTIONS § 183
It is always your duty to be in court when the verdict is
delivered. It may sometimes be expedient to poll the jury,
since discontented jurors sometimes avail themselves of the
opportunity afforded by the poll to withdraw their assent
to the verdict. In not a few instances a poll has brought an
outspoken dissent. In other cases it may happen that there
is some informality in the verdict that should be corrected
before the discharge of the jury. In still other cases it may be
important to require that answers to interrogatories be made
more specific. Sometimes, too, it is essential to secure correc-
tions in computations. It also frequently happens that there
are mistakes apparent on the face of the verdict that should
be corrected before the jury are discharged. The presence of
counsel may be necessary to prevent error in receiving and
recording the verdict or in discharging the jury. In short
many things demand the personal attendance of counsel.
Promptness in directing attention to apparent errors and in-
formalities in verdicts is essential. After the discharge of the
jury, corrections cannot be made, but corrections may often be
secured before the jury are discharged. Many objections are
available only when made before the discharge of the jury.
Motions for a new trial and for a venire de novo should be
made without undue delay. The counsel of the successful party
should, without unnecessary delay, move for judgment on the
verdict. He should see that the judgment is duly recorded.
If the case is not an ordinary one, he should prepare the judg-
ment and all necessary entries.
Your duty is not done when the addresses to the jury
are concluded. It is your duty to be present and hear the in-
structions and directions of the court to the jury. It is your
duty to see to it that, when the addresses are concluded, no
improper papers go to the jury, and that nothing is wrongfully
done that may injure the cause of his client. It is not to be
forgotten that from the time the cause goes into court until the
last step is taken, it is in your charge and requires your un-
divided and concentrated attention.
The following specific rules of law obtain with respect to the
verdict and its incidents:
1. The verdict of the jury should be returned in open court,
and the parties and their counsel should, at least, be given an
opportunity to be present; but it is the duty of counsel to be in
court at the proper time.
2. Where necessary, court may be opened and the verdict
received on Sunday.
§ 184 INSTRUCTIONS — BULBS GOVERNING 498
3. The verdict should be definite and positive in form; but
it will not be bad for mere informality where it is sufficient to
show what the finding really is upon the issues presented.
4. Where there is nothing to prevent, equivocal language
should be taken in the sense most favorable to the verdict, and
mere surplusage will be disregarded.
5. The verdict must conform to the issues and be responsive
thereto; but where it appears that all questions in the case are
really settled, and no injury is done by the failure to find on all
the issues, the verdict will be sufficient.
6. A sealed verdict may be returned by agreement of
parties, but this does not dispense with the presence of the
jury in open court when the verdict is read, unless expressly
waived.
7. In most jurisdictions either party has an absolute right
to have the jury polled, whether the verdict be oral or sealed,
but the examination of each juror must be confined to a single
question, namely: "Is this your verdict?"
8. Where a verdict is duly returned, but upon being polled
the proper number of jurors do not agree, no valid judgment
can be rendered thereon. In such case the jury should either be
discharged, or sent back for further deliberation.
9. The jury may amend or change their verdict at any time
before it has been recorded or they have been, either in form or
in fact, discharged.
10. The jury before being discharged may be required by
the court to make their verdict more definite and complete or
otherwise amend it, when necessary.
11. Informalities in a verdict may be corrected by the court.
Wherever the finding upon the point in issue can be determined,
the court will usually mold the verdict into proper form and
give it due and legal effect.
12. Objections to the form of a verdict should be made at
the time it is returned and before it is recorded.
13. After the verdict has been recorded and the jury dis-
charged, they cannot be reassembled to reconsider or amend
their verdict.
14. A quotient verdict or a chance verdict is unauthorized
and will be set aside upon a proper showing.
§ 184. Demurring to evidence — Nonsuit — Directing a verdict.
(a) DEMURRING TO EVIDENCE. There are many cases in which
one, at least, of the parties feels much safer in the hands of
the court than in the hands of the jury ; but there are compara-
499 PRACTICAL SUGGESTIONS § 184
tively few cases, where issues of fact are joined, which can be
taken from the jury. Ordinarily the case must be submitted
to the jury. It is, perhaps, wise that the jury system should
keep its place in our system of remedial justice. There are,
however, cases which a court will try with more impartiality
and with better judgment than a jury.
If a party desires to withdraw a case entirely from the jury
and get all the evidence into the record, he may do so by de-
murring to the evidence. By this course a bill of exceptions is
dispensed with, and the court applies the law to the facts which
the evidence conduces to prove. The case may, by this means,
be taken entirely from the jury, except insofar as the damages
are concerned; for the damages must be conditionally assessed
by the jury before whom the evidence has been delivered, or,
in case the court decides adversely to the party who demurs, a
new jury may be called to assess them.
A demurrer to the evidence cannot, ordinarily at least, be
taken by a party who has the risk of non-persuasion. This must
be so on principle, for a demurrer confesses the truth of all the
evidence adduced, and consents that all reasonable inferences
that a jury might have drawn from it may be drawn by the
court; and as it must confess all the evidence and all reasonable
inferences, it cannot be employed by one who has the burden
of establishing what he alleges. He cannot call upon his ad-
versary to confess that his evidence is trustworthy or that
the facts essential to his success are established.
In strictness the demurrer is to the facts which the evidence
tends to prove and not to the evidence itself. It reaches the
object rather than the means by which it is attained. It
follows, therefore, that the facts which the evidence directly
or indirectly tends to prove must be taken as admitted. The
issue of fact is conclusively ended, and an issue of law merges
the whole controversy.
It is evident that a party who demurs to the evidence incurs a
great risk, since he confesses all the facts which the evidence
directly or indirectly tends to prove. This is so even though
there be contradictory evidence ; for, of necessity, only evidence
tending to prove facts favorable to the party against whom the
demurrer is directed can be regarded, all other evidence is with-
drawn. This conclusion inevitably results when it is affirmed,
as it must be, that it is the facts which the evidence tends to
prove and not the evidence, merely, that the demurrer confesses.
Although there is much danger in demurring to the evidence,
yet the procedure is sometimes expedient. The danger which the
demurring party encounters makes it necessary to proceed with
§ 184 INSTRUCTIONS — RULES GOVERNING 500
great caution, and the attorney who employs a demurrer must
be very sure that there is an absolute failure of evidence. The
course is expedient when the evidence, even though it may prove
some cause of action, does not tend to prove that upon which
issue is joined.
Jurors who think that a right has been invaded and damages
inflicted will not, if they can possibly avoid it, put away a
plaintiff without compensation. They will not stop to consider
what cause of action is proved; it is enough for them to think
that a wrong has been done and an injury suffered. The slight-
est pretext will serve to carry them against the law, however
clearly and strongly it may be stated in the instructions of the
court. There is no presumption so violent, nor inference so
strained, that they will not make in such a case, for, led by
their own notions of justice, they will put aside the law with
little hesitation. They will not consider that a party called to
answer one cause of action ought not, in fairness or good con-
science, be mulcted in damages upon another and different cause.
But the court will consider that matter and will not allow a
recovery unless the facts confessed establish the cause of action
stated in the complaint or declaration. Nor will the court draw
any forced or violent inferences, for it will allow weight only to
such as are natural and reasonable.
Where there is no evidence tending to prove a material fact
essential to a cause of action, and the prejudices and sympathies
of the jury are with the plaintiff, it is safe to demur to the evi-
dence. It is, indeed, expedient to demur in such cases, for by
this means the evidence is brought into the record, and the court
necessarily decides upon its probative force as well as upon the
law. We do not mean, of course, that the court will weigh the
evidence, for that it will not do. But it will apply to it the just
and reasonable rules of inference, rejecting all violent and un-
natural processes, and ascertain its just probative force. A jury
will not be so conservative. In the very great majority of cases of
that class, they will disregard all rules of reason and law and let
their prejudices or their passions dictate their verdict. This
many jurors will do without a suspicion that there is a tinge of
wrong in their course, while others will perversely persist in
doing what they cannot well avoid knowing is forbidden by law.
Trial judges are, it is well known, often averse to disturbing
verdicts and sometimes suffer verdicts to stand that should be
promptly set aside. In some instances this occurs for the reason
that a relentless press of business prevents the judge from
giving the facts a careful study, and he feels that he ought not,
with his inadequate information, set aside the decision of men
501 PRACTICAL SUGGESTIONS § 184
he rightfully presumes were impartial triers. In other instances
he feels that he ought not to substitute his own judgment for
that of the twelve persons adjudged by law to be competent
judges of the facts. Doubtless it would be better if verdicts
were more often sternly and promptly set aside ; but it is mani-
fest that, in most cases, the duty is a very delicate one, and it is,
therefore, no marvel that judges are reluctant to exercise the
power vested in them. When the case comes to the appellate
court there is still greater reluctance to disturb the finding of the
jury on the facts. There are obvious reasons for this reluctance,
only one of which we need mention, and that is: the verdict
comes to the appellate court with the approval of the trial judge,
given after the verdict has passed his examination. Where, there-
fore, there is just reason to believe that there is an absolute
want of evidence, it is well to demur to the evidence, since such
a course relieves the trial judge from the duty of impliedly
rebuking the jury and puts the whole matter in his hands.
He may decide without the suspicion of arrogating to himself
knowledge or impartiality not possessed by the jury, for the
right and the duty of deciding are directly put upon him in the
first instance. We hazard the opinion that it would promote
justice if the rules respecting demurrers to evidence were re-
laxed and a more liberal practice established. The ancient
rigor has, indeed, been much abated, but it might be still further
relaxed with benefit to courts and parties. The reason for the
rigorous application of the rule seems to have been that the
procedure was thought to be an encroachment upon the province
of the jury as the judges of the facts, but it is evident that this
reason has very little strength. The judges who displayed their
zeal for the rights of the jury by so hedging in the office of a
demurrer to the evidence cannot be justly allotted much credit
for consistency, for in their charges to the jury they did not
scruple to advise them how to decide questions of fact.
While a demurrer to the evidence is sometimes advantageous
because it casts the responsibility upon the court and secures a
decision putting an end to the controversy, yet the very fact
that a ruling on it may conclusively settle the controversy
constitutes an element of danger. If a court errs in favor of the
demurring party and a reversal is adjudged on appeal, there
is no opportunity for a new trial, for the facts remain con-
fessed of record. There is no escape in such a case from an
adverse judgment. This consideration will increase the caution
of a prudent advocate and deter him from demurring to the
evidence, unless he is very confident that his demurrer is well
taken.
§ 184 INSTRUCTIONS — RULES GOVERNING 502
The party who resolves to demur to the evidence should be
very careful In his cross-examination of the witnesses. It is
useless in such a case to cross-examine for the purpose of ex-
posing the falsity of a witness's testimony, as the facts his
testimony tends to establish will be taken as true, although
the falsity of the testimony is apparent on its face. Nor can
good be accomplished by inducing him to state facts favorable
to the cross-examiner, unless such facts, when elicited, will
stand uncontradicted ; for, if contradicted, they will be regarded
as withdrawn. The probability of doing harm by a cross-
examination is infinitely greater than that of doing good. If
there is any cross-examination at all, it should be very brief
and addressed to immaterial matters. An apparent cross-
examination of the briefest character is the best. It should
be conducted without any attempt to do more than conceal
from the adverse party the intention to demur to the evidence,
for the danger of harm is too great to be encountered while
there is scarcely a bare possibility of doing any good.
(b) NONSUIT. There are other modes by which a case can be
taken from the jury. One is by a motion for a nonsuit.
The practice of granting a compulsory nonsuit is not
uniform and varies greatly in different jurisdictions. There
are, indeed, some jurisdictions in which the practice is almost
unknown. In most jurisdictions the practice of granting a non-
suit at the conclusion of plaintiff's evidence or of directing a
verdict at the conclusion of all the evidence is approved in a
proper case. The practice of moving for a nonsuit is preferable
to that of demurring to the evidence, except in cases where it is
desired by the defendant that the judgment shall be conclusive.
Where it is desired to prevent subsequent actions and end all
litigation, it is better to adopt some other course than that
of moving for a compulsory nonsuit, for the general rule is
that a judgment as upon a nonsuit does not prevent the plaintiff
from suing again on the same cause of action.
A plaintiff may, at the proper time, voluntarily dismiss his
case or take what is called a voluntary nonsuit. It is always
prudent to adopt this course where the case seems hopeless
and there is reason to believe that a second action can be made
successful. In many of the states, however, the dismissal will
not carry out of court a counterclaim or a set-off. Where there
is a defense that is not disposed of by a dismissal, it is exceed-
ingly hazardous to dismiss, for the whole question may be
litigated upon the answer or plea. If it is, the judgment is
conclusive, barring all further litigation upon the matters con-
cluded by the judgment. It is, as a general rule, the right
503 PRACTICAL SUGGESTIONS § 184
of the plaintiff, where there is no counterclaim or set-off, to
dismiss any part of his cause of action, except, of course, in
cases where it is indivisible.
(c) DIRECTING A VERDICT. A simple, and sometimes very ef-
fective, method of taking the case from the jury, is by
motion to direct the jury to find for the one party or for
the other. Where the plaintiff wholly fails to make out a case,
the defendant is entitled to an instruction directing the jury
to return a verdict in his favor. If the evidence of the defend-
ant entirely answers and overthrows that of the plaintiff, not
leaving him a prima facie case, the former is entitled to an
instruction requiring the jury to give him the verdict. On the
other hand, if the defendant's evidence wholly fails to meet
that of the plaintiff or to establish any affirmative defense,
it is the plaintiff's right to have the jury so instructed. Neither
party is, however, entitled to such an instruction where there
is a conflict of evidence upon a material point. Where there is
anything more than a scintilla of evidence creating an issue of
fact, it is the rule in most jurisdictions that all questions of
fact must be decided by the jury, for the court cannot, in cases
where there is a real conflict of evidence, usurp the functions
of the jury.
In general, the party who has the risk of non-persuasion can-
not successfully ask an instruction that a verdict be returned in
his favor, since he must establish, by a fair preponderance of the
evidence, all of the facts essential to his cause of action or de-
fense. A defendant, for this reason, usually, but not always
by any means, can more safely ask such an instruction than
can the plaintiff; for one fact may be enough to destroy the
cause of action, while many facts may be necessary to establish
it.
Where the court is asked to instruct the jury to return a
verdict in favor of the party making the request and the request
is denied, harm may result. The jury are apt to conclude that
the opinion of the court is strongly against the moving party.
It is, therefore, not prudent to make the request except in
very clear cases. The request could be made out of the hearing
of the jury. Where there is doubt, the safe course is to allow the
case to go to the jury in the ordinary way.
The chief difference between the results of a demurrer to the
evidence and a motion for a nonsuit or for a direction of a verdict
is that in the former the trial ends and a judgment follows a
decision on the demurrer; whereas a denial of a nonsuit or mo-
tion for a direction of verdict does not terminate the trial, and
the case goes on to a submission to the jury and verdict.
§ 184 INSTRUCTIONS — RULES GOVERNING 504
General rules relative to demurring to the evidence may
be briefly stated as follows :
1. When one party has given all the evidence he has in
support of his cause, and rested, the other may, if he is confi-
dent that such evidence is insufficient to make a case against
him, demur to it, and thus test its legal sufficiency.
2. The demurrer must be to the whole of the evidence
adduced by the opposite party and not to any particular part.
3. The demurrer admits not only the existence of the evi-
dence demurred to, but also the facts proved by it, including
such facts as the jury might have reasonably inferred there-
from.
4. Upon a demurrer to the evidence, no evidence tending to
contradict that demurred to can be considered.
5. The demurrer waives all objections to the admissibility
of the evidence made by the party who demurs.
6. Final judgment should be entered upon a demurrer to
the evidence, for plaintiff or defendant, according as the demur-
rer is overruled or sustained.
7. A party, by demurring to the evidence, does not waive
his right to test the sufficiency of a pleading or take advantage
of any defect therein on motion in arrest of judgment.
Concerning compulsory nonsuit the following rules may be
adduced :
1. It has been held that a statute authorizing the granting
of a compulsory nonsuit on the defendant's motion, in civil
cases, where the plaintiff rests without having made a prima
facie case, is constitutional, and the practice is followed in many
of the states.
2. The rule generally adopted, although there is some con-
flict in the authorities, is that if the evidence given by the
plaintiff would not authorize the jury to find a verdict for him
or if the court would set it aside as contrary to the evidence,
a nonsuit should be granted on defendant's motion.
3. Where the plaintiff makes a case sufficient to go to the
jury or where the essential facts are controverted, a motion for
nonsuit should be denied.
4. A motion for nonsuit cannot be made before the plaintiff
has closed his case; but it seems that it may be made either
immediately thereafter or after all the evidence is in.
5. The motion for nonsuit should specify the grounds on
which it is asked and point out the particulars in which the
plaintiff has failed to make his case.
6. Upon motion for nonsuit, as in case of a demurrer to
the evidence, the opposite party is entitled to have his evidence
505 PRACTICAL SUGGESTIONS § 184
considered as absolutely true and to have the benefit of all
legitimate inferences therefrom.
The governing principles concerning voluntary dismissal or
nonsuit are as follows:
1. Where a party finds that his evidence is not strong
enough to make a case and wishes to save the right to bring
another action at some future time under more favorable aus-
pices, he may, before it is too late, dismiss his action without
prejudice or submit to a voluntary nonsuit, as it is often called.
2. At common law, and in several of our states, the plaintiff
may voluntarily submit to a nonsuit at any time before the jury
have rendered their verdict ; but in other states it must be done,
according to statute, before the jury retire, if not even sooner.
3. In some jurisdictions it is the practice for the court, in
case of surprise, or for any other cause which would render
further progress of the trial unjust and unfair to a party, to
permit a juror to be withdrawn and thus postpone the trial.
The following is a summary of the principles governing
directing a verdict:
1. Where there is no dispute as to the facts and no contro-
versy as to the inferences that can be legitimately drawn from
them, the question is one of law, and the jury may be directed
to return a verdict for plaintiff or defendant, according as
either is entitled to recover under the law applicable to the case.
2. It is error for the court to refuse to direct a verdict in
a proper case.
3. A plaintiff, as well as a defendant, may take advantage
of this practice in a proper case; but no motion by a plaintiff
to direct a verdict in his favor will lie until after the defendant's
case is closed.
4. The test for determining when a case should be taken
from the jury is substantially the same as upon motion for
nonsuit. Or, in other words, a verdict should be directed, on
proper request, when there is no conflict in the evidence upon
any controlling issue and but one reasonable inference can be
drawn therefrom, so that under the law the party making the
request is entitled to a verdict.
5. Where, however, more than one reasonable inference
might be drawn by the jury from the evidence, so that different
minds would reach different results, the case should not be taken
from the jury.
6. A verdict returned by direction of the court terminates
the litigation and prevents a new action for the same cause.
§ 185 INSTRUCTIONS — RULES GOVERNING 506
§ 185. Exceptions and bills of exceptions.
Success in the trial court is the object to be attained in every
case, if possible, and it is not wise to prepare with a view wholly
to success on appeal. But he who neglects to reserve questions
for appeal is not much wiser than he who looks only to the
appellate court for success. The primary object is always the
verdict. There is, however, no reason why one may not stoutly
struggle for the verdict, and yet at the same time take measures
that may make an appeal availing in case of defeat.
There is no necessity for permitting measures taken with a
view to an appeal to prejudice the jury, but the advocate may
so conduct his case in this respect as to do serious injury to his
client's cause in the minds of the jurors. If objections and
exceptions are frequently made and are taken in such a manner
as to make it appear that there is no hope except from an ap-
peal, harm is very likely to result. The way to prevent this
result is to make as little parade or show as possible in stating
objections and reserving exceptions. In general, the true policy
is to present the objections calmly. There are, however, some
cases where it is better to make the objections persistently and
forcibly. In ordinary cases, the counsel must keep his temper
and not permit the jurors to perceive that he has been nettled
or disturbed by an adverse ruling. But, while the manner should
be subdued and deliberate, the objections should be stated, and
the statement should go into the record. In no event, should
there be a surrender of the right to state objections and to have
exceptions noted. This right no court can justly deny. No coun-
sel should permit a denial of this right.
In order that an adverse ruling, made during the progress of
the trial, may be available on appeal, four things are ordinarily
essential: First, there should be a timely objection, sufficient
in form and substance; second, there should be an exception
stated at the proper time and in the proper manner ; third, there
should be a proper motion calling for a review of the adverse
ruling; and fourth, the record should show the objection, the
exception, and the motion calling it in review. The objection, of
course, precedes the ruling; the exception must be taken at
the time the ruling is announced. The motion calling it in
review must be the appropriate one and made at the proper time ;
and the final ruling must be put in writing in due form and
incorporated in the record. These things are customarily made
to appear by a bill of exceptions.
It is well to object and except to every material adverse
ruling in all cases that are at all doubtful. Without a proper
objection and exception there is no hope for relief on review
507 PRACTICAL SUGGESTIONS § 185
or appeal. General exceptions are all that need be stated when
an ordinary motion, as for a new trial or the like, is overruled.
All that need be done in such a case is to state in general terms
that an exception is reserved and see that it is properly entered
of record. Motions, of whatever character, should specifically
state the grounds upon which they are based. This may not
always be required as a rule of law, but it is the safest course
to follow. It is always safe to make motions that relate to
proceedings on the trial specific, and this is done by addressing
them to the particular point or matter and assigning the reasons
on which they are founded. In every case where there is doubt
the best practice is to state objections specifically, no matter in
what form the question arises.
It is necessary, as a general rule, where a ruling is made
during the trial, that an exception should be taken at the time
the ruling is made, and that another exception should be taken
when the motion calling the ruling in review is acted on by
the court. Thus, suppose the court admit in evidence, over the
defendant's objection, a deed and that a motion for a new
trial is subsequently made. In such a case two distinct excep-
tions are necessary, one at the time the ruling is made admitting
the evidence, another at the time the motion for a new trial is
denied. Presumptions are made in favor of the trial court, and
one assailing its rulings must show a wrong ruling, due objec-
tion and exception, a proper motion calling the rulings in review,
and an exception to the ruling on the motion.
In some states, the taking of formal exceptions to any ruling,
finding, or order has by rule been dispensed with and an ex-
ception is deemed taken to every ruling adverse to an appellant.
It is not usual to reduce to writing objections made during
the trial, nor to note at the time the exceptions in writing, but
the objections must be stated, the exceptions reserved, and time
obtained to put them in writing. It must ultimately appear, by
the record, that the exception was taken at the time the ruling
was made, but this may be made to appear in a bill of exceptions
subsequently filed. It is sometimes prudent to take a bill of ex-
ceptions at the time the ruling was made, but, as a general rule,
all that need be done at that time is to ask leave to reduce
the exception to writing and pray time for filing the bill. We
are speaking now, be it remembered, of rulings made while
the trial is in progress, for where rulings are made on the
pleadings, or on motions for a venire de novo, a new trial, or
the like, the exception must be taken at the time, and then
entered of record in the order-book of the court.
A bill of exceptions is not necessary to exhibit matters which
are properly a part" of the record of the court. It is not neces-
§ 185 INSTRUCTIONS — RULES GOVERNING 508
sary, for instance, where the ruling is upon a demurrer to a
pleading. But wherever it is necessary to bring papers, motions,
or the like, into the record, when they are not part of the
pleadings, it is safest to take a bill of exceptions. It is essential,
in most jurisdictions, that evidence and affidavits in support
of a motion for a continuance, or for a new trial, should be
incorporated in a bill of exceptions; otherwise, they will not,
in ordinary cases, be considered on appeal. The safe rule is to
bring all affidavits filed in support of motions into the record
by a bill of exceptions.
The usual formal commencement of a bill of exceptions is
this: "Be it remembered." This recital is followed by a state-
ment of the proceedings of the court. The signature of the
judge should be affixed at the close of the bill. In strictness,
all evidence, documentary and oral, should be written at full
length in the bill in all cases where it is necessary that all the
evidence should be exhibited. But this rule has been relaxed
in some of the states, and documents may be brought into the
record by referring to them and writing the words "here in-
sert/* The statute must be strictly followed. It is not safe to
attach papers to a bill as exhibits. They should be incorporated
into the bill in such a manner as to precede the signature of
the judge.
There are matters which must appear in the record proper,
and these matters cannot be properly exhibited in the bill of
exceptions. What is strictly a part of the record should, as a
general rule, appear in the order-book or docket. Where time
is given to file a bill of exceptions, it should be shown by an
entry in the order-book or docket, and the time the bill is actually
filed should be shown.
Except in states where the formal taking of exceptions has
been dispensed with, the general rules governing the reservation
of exceptions to instructions may be briefly stated as follows :
1. Where a ruling or an instruction of the trial court is
objected to, or deemed erroneous, an exception should be taken
at the time or within such time as the controlling statute of the
particular state may permit.
2. An exception ought, in strictness, to be noted at the time
it is taken ; but the court may have it noted thereafter, if done
before the verdict is received or within the time specially
granted by the court by an order made when the exception1 is
stated.
3. Notification by counsel that he reserves the right to
except subsequently is not, in itself, a good exception.
509 PRACTICAL SUGGESTIONS § 185
4. Exceptions should be distinct and specific.
5. A mere objection, without an exception, to the ruling1
or action of the court is insufficient to save the question for
appeal.
6. The right to a bill of exceptions was given by the statute
of Westminster, 2, 13 Edw. 1, Ch. 31, which provides that "when
one impleaded before any of the justices alleges an exception,
praying they will allow it, and if they will not, if he that alleges
the exception writes the same, and requires that the justices
will put their seals, the justices shall do so, and if one will not,
another shall/' This has been adopted substantially, either by
express enactment or common practice, in all the states of the
union.
7. The object of a bill of exceptions is to present and get
of record all exceptions and matters for review not otherwise
appearing of record. It is in form a written statement of such
exceptions and matters, signed and sealed by the judge in con-
firmation of its correctness.
8. Although exceptions should be taken and, as a rule, noted
at the time of the ruling complained of, it is not practicable for
the court to delay the trial until they can be reduced to writing
in the shape of a formal bill. It is, therefore, the general
practice for the court to grant time, or the statute provides
time, for that purpose, so that bills of exception are ordinarily
settled and signed after the trial
9. The time to be given, unless governed by statutory pro-
vision, is within the sound discretion of the trial court, but it
should be definite and reasonable.
10. A bill of exceptions cannot be settled and signed in
vacation, after the expiration of the term and of the time
allowed therefor. But in some states, by statute, a bill may be
settled and signed by the trial judge in term time or in vacation.
11. Where it is not signed and filed, or presented to be
signed, in time, it will be struck from the record, or, at least,
will not be considered as a part thereof on appeal.
12. Where the bill shows on its face that it could not have
been presented and signed within the time allowed, it will not
be considered as a part of the record, although it contains the
general statement that it was presented in time.
13. Where a judge refuses to sign or seal a bill of excep-
tions, he may be compelled to do so, in a proper case, by man-
damus.
14. All matters for review, not required to be otherwise of
record, should be embodied in a bill of exceptions.
§ 185 INSTRUCTIONS — RULES GOVERNING 510
15, All the facts on which an exception is based must be
shown. In other words, enough must appear to show not only
the ruling and exception, but also to enable the court to judge
whether there is available error.
16. No right to a bill of exceptions in a criminal case existed
at common law, but it is now given by statute in most of the
states.
INDEX
A
References are to Sections
ABANDONMENT,
counts in indictment, ignoring, 125.
instruction not to be given on abandoned issues, 117, 119, 123.
ABSTRACT INSTRUCTIONS,
See ERRONEOUS INSTRUCTIONS; PREJUDICIAL ERROR.
charge construed as whole, 136.
charge not abstract if based on evidence, 121.
charge on negligence not made applicable to contributory negligence,
121.
definition, 122.
definitions of terms are not abstract, 121.
illustrations, 121, 122 n48.
impropriety, 121, 122.
included offenses, where no evidence, 122.
misleading to jury, 121.
not ordinarily reversible error, 121.
tests, 121.
ACCESSORIES,
evidence to support instruction, 120.
instruction denning, 125.
necessity of defining, 55.
ACCIDENT,
See NEGLIGENCE.
charge improper where evidence discloses negligence, 119.
improper to instruct on, where not pleaded, 117.
ACCIDENTAL DEATH,
See INTERPRETATION.
ACCIDENTAL KILLING,
request necessary for charge, 51.
ACCOMPLICES,
See ACCESSORIES.
assumption of fact of existence, 26.
assumption of fact of truth of evidence, 26.
caution in receiving uncorroborated testimony, 69.
charge on testimony of, not to be given where none produced, 118.
corroboration, extent required, 69 n89.
corroboration, meaning, 69 n89.
credibility of witnesses, 41, 69.
necessity of definition of term, 55.
undue prominence to testimony, 107.
whether witness an accomplice as question for jury, 28.
ACT OF GOD,
burden of proof, 61.
511
512 INDEX
References are to Sections
ADDITIONAL INSTRUCTIONS,
duty to request, 94.
ADMISSIONS,
assumption of admitted facts, 25.
cautionary instructions concerning, 34.
confused with confessions in criminal cases, 34 n50.
definition, 34.
error to charge admissions to be taken as true, 34 n50.
error to tell jury to scrutinize closely, 34 n42.
evidence necessary to support instruction, 120.
expression of opinion as to weight, 32.
truth or falsity as question for jury, 28.
verbal statements of witnesses do not constitute, 34 n42.
weight of admissions of parties, question for jury, 34,
ADMONITIONS,
not part of instructions, 1.
ADVERSE POSSESSION,
See IGNORING ISSUES.
ADVISORY INSTRUCTIONS,
where jury are judges of both law and facts, 3 n39.
AGED PERSONS,
See REQUESTS.
request for charge as to care required, 150.
AGENCY,
assumption of existence of relation, 23.
necessity of defining term, 54.
AID,
necessity of request for definition, 151.
AIDING AND ABETTING,
request for definition, 55.
ALIBI,
burden of proof, 62.
construction of charge as whole on question, 137.
defense not to be disparaged by court, 72.
defense of, when court may ignore, 72.
disparagement by court, 72 n34.
error to charge on, in absence of evidence, 120.
establishment as question for jury, 135.
evidence to support instruction, 120.
expression of opinion as to weight of evidence concerning, 32.
improper to instruct as to case of fabricating, as defense, 72 n39.
instruction concerning, need not be repeated, 72.
necessity of request for instruction on subject, 151.
proved by fair balance of evidence, 72 n39.
reasonable doubt, 72.
subject matter of instruction, 72.
when defense may be ignored, 72.
ALIEN,
See WITNESSES.
AMBIGUOUS INSTRUCTION,
cure by others, 140.
INDEX 513
References are to Sections
AMERICAN MORTALITY TABLES,
assumption of expectancy of life, 25.
error to charge conclusively as to expectancy, 31.
expression of opinion on use, 29.
necessity of request for instruction on subject, 150.
APPARENT AUTHORITY,
definition, necessity, 54.
APPEALS TO SYMPATHY,
impropriety in charge, 110.
APPELLATE REVIEW,
See EXCEPTIONS AND OBJECTIONS; PRACTICAL SUGGESTIONS.
assignment of error, 170.
preservation of error for appeal, 170.
APPRECIATION OF DANGER,
See IGNORING ISSUES.
ARGUMENTATIVE INSTRUCTIONS,
See ERRONEOUS INSTRUCTIONS; PREJUDICIAL ERROR.
admonitions to jurors to stand by their convictions, 109.
certain acts of husband not justifying wife's assault, 108.
common knowledge, telling jury to consider in accident case, 108.
construction of charge as whole to determine question, 137.
dissertation on revocation of will, 108.
dying declaration to be received with grave caution, 109 n63.
essentials, 108.
failure to safeguard machinery is negligence, 108.
illustrations, 108.
impaired earning capacity, charge in absence of evidence, 115 nl.
impropriety, 108, 109.
intoxication does not constitute contributory negligence, 108.
law abhors fraud, 108.
modification by court, 157.
motive, lack of, to be considered as favorable to accused, 109.
officers as witnesses, credibility, 109.
partnership, outlining how shown, 108.
pointing out what acts constitute negligence, 108.
quotations from court opinions, 102.
racial prejudices, admonishing jury to disregard, 109.
right of court to modify, 157.
slander charge easy to make and hard to defend, 108.
weight and credibility of testimony of accused, 109.
ARGUMENTS OF COUNSEL,
court's duty to charge jury to disregard improper argument, 74.
erroneous instructions, 74. ^
subject matter of instruction concerning, 74.
ASSIGNMENT OF ERRORS,
generally, 170.
ASSUMPTION OF FACTS,
See PRACTICAL SUGGESTIONS.
abstract legal propositions, 24.
admitted facts, 25.
admitted facts may be assumed true in the charge, 25, 26.
514 INDEX
References are to Sections
ASSUMPTION OF FACTS— Continued.
construction of charge as whole, 136, 137.
contract cases, 23.
controverted facts not to be assumed in instructions, 23, 26.
court's invasion of jury's province, 23.
criminal cases, 26.
disputed facts in criminal cases not to be assumed, 26.
established facts, 25.
evidence undisputed, facts may be assumed, 23, 25, 26.
examples of wrongful assumption of facts in the charge, 23.
facts agreed upon by parties, 25.
general rules governing, 23.
illustrations, 23.
illustrations of proper and improper, in criminal cases, 26.
instructions embodying, 23.
matters of common knowledge, 24.
negligence cases, 23.
propriety determined by construing" charge as whole, 137.
statement of issues and claims, 23.
venue proved, 26.
wills, 23.
ASSUMPTION OF RISK,
See NEGLIGENCE.
burden of proof, 61.
necessity of pleading to justify submission, 117.
ATTORNEYS,
See ARGUMENTS OP COUNSEL.
AUTOMOBILES,
See volume 2 of this series for forms of instructions,
expression of opinion as to cause of accident, 29.
B
BIAS,
effect on credibility of witness, 40.
BILL OF EXCEPTIONS,
See PRACTICAL SUGGESTIONS.
BLANK FORMS,
submission of, for verdicts, 76.
BLOOD HOUNDS,
See EVIDENCE; WITNESSES.
BONA FIDE HOLDERS,
definition, request for, 54.
BURDEN OF PROOF,
affirmative defenses, 115 n4.
alibi in criminal trials, 62.
civil cases, 62.
contributory negligence, wrongly placed, 138.
criminal cases, 62.
defendants, in civil cases, 61.
does not shift to accused, 62.
effect of presumptions in criminal trials, 62.
error to place on accused, 62.
insanity of accused, 62.
INDEX 515
References are to Sections
BURDEN OF PROOF— Continued.
presumption of innocence casts burden on prosecution, 62.
self-defense in criminal trials, 62.
subject matter of instructions, 61.
C
CAPITAL PUNISHMENT,
See VERDICTS.
CAUTIONARY INSTRUCTIONS,
against expert testimony, 35.
against influence of sympathy or sentiment, 42.
alibi as defense, 72 n34.
cautioning individual jurors, 43.
confession of another defendant, 69 n76.
definition, 42.
discretion in giving, 42, 43.
extent court may go, 42.
failure to give, when error, 42 n84.
federal prohibition agents, 69 n65.
individual jurors, 43.
referring to oath taken, 43.
instances where erroneous, 42.
opinion evidence, error, 69 nil.
quotient or compromise verdicts, 78.
rape case, when proper, 42 n2.
reaching verdict by lot, 42.
reasonable doubt, single juror's, 43.
singling out particular witness improper, 42.
testimony of informers, 42 n98.
testimony of wife of an accomplice, 41 n57.
urging agreement in criminal case, 42.
yielding conscientious convictions, 43.
CHARACTER,
defense of good character not to be disparaged, 60.
error to tell jury cannot generate reasonable doubt, 32 n91.
evidence to support instruction on presumption, 120.
expression of opinion as to collusiveness of evidence, 32.
good character of accused as subject matter of instruction, 60.
improper charge as to, in criminal trials, 32.
necessity of request for instruction on subject, 151.
presumption of good character, 120.
proof of, relation to reasonable doubt, 60.
reasonable doubt generated, 60.
right of jury to consider, on question of credibility of witness, 68.
sufficiency of evidence to justify instruction, 60.
CHARTER OF CORPORATION,
court, and not jury, construes, 13.
CHILDREN,
credibility of witnesses, 41.
CIRCUMSTANTIAL EVIDENCE,
charge where some evidence is direct, 64.
civil cases, 63.
comment on weight of, in instruction, 36.
criminal cases, 64.
516 INDEX
References are to Sections
CIRCUMSTANTIAL EVIDENCE—Continued.
disparagement of, improper, 64.
expression of court's opinion as to weight or value, 32.
improper to instruct on, where evidence direct, 120.
necessity of request for instruction on subject, 151.
no charge on wnere self-defense pleaded, 64.
prejudicial error in comment on weight, 36.
reasonable doubt from, 59.
request not made for instruction, 64.
subject matter of instruction, 63, 64.
undue influence in will contest, 36 n65.
CLEARNESS OF EXPRESSION,
See FORM AND ARRANGEMENT; PRACTICAL SUGGESTIONS.
ambiguities to be avoided, 94.
charge sufficient if presents issues fairly, 94.
grounds of objection to instruction, 172.
language of charge should be clear, 94.
"model instruction" defined, 94.
necessity for clarity, 94.
prolixity in charge to be avoided, 94.
request for instructions to be clear, 156.
simplicity and conciseness in charge required, 94.
singular used for plural not always misleading, 94.
technical accuracy not necessarily required, 94.
using "may" interchangeably with "shall/* 94.
COERCING JURY TO AGREE,
court without authority, 45.
COMMENTS AND EXPRESSIONS OF OPINION,
See CRIMINAL LAW; PREJUDICIAL ERROR; PRACTICAL SUGGESTIONS.
accused's failure to testify, 71.
alienation of affections cases, 31.
assault and battery cases, 31.
cases of contract and of tort, 31.
common law rule, 33.
contract cases, 31.
contributory negligence, stating what would constitute, 31.
corroborating evidence, weight, 32.
criminal trials, improper comments on evidence, 32.
damages, 31.
defamation cases, 31.
depositions entitled same weight as witnesses, 29 n96.
designated matters as symptoms of insanity, 32.
disparagement of expert witnesses, 35.
disparaging remarks on merits of case, 22.
driver could go 35 miles per hour, 31.
effect of recent possession of stolen property, 32.
erroneous statements as to preponderance of evidence, 30*
error to express opinion as to evidence, 29.
evidence in general, 29.
failure of accused to call available witnesses, 71.
false imprisonment cases, 31.
favorable comment on character of witnesses, 39.
federal courts, rule, 33.
fraud cases, 31.
good or bad character, weight of testimony, 32.
Illinois rule, 33.
INDEX 517
References are to Sections
COMMENTS AND EXPRESSIONS OF OPINIONS— Continued.
indicating how to determine preponderance of evidence, 30 n27.
injured person an employee of defendant, 31.
injured person a passenger, 31.
instances of improper comment on preponderance of evidence, 30, 31.
instances of proper and improper, 29.
malicious prosecution cases, 31.
merits of case, 22.
Michigan rule, 33.
mortality tables, making conclusive evidence, 31.
negligence, stating what would constitute, 31.
party failing to exercise due care, 31.
preponderance of evidence, 30.
charging how to determine, 30 n28.
probative value of impeaching testimony, 32.
singling out testimony of accused, 41.
statements of certain witness entitled to great weight, 31.
stating accused's contentions are without merit, 33.
stating great feeling between parties, 29 n96.
trespass cases, 31.
verdict should be for plaintiff if all evidence believed, 29 n2.
weight and effect of dying declarations, 32, 41.
weight of corroborating evidence, 38.
COMMON DESIGN,
See DEFINITIONS.
COMMON KNOWLEDGE,
telling jury to consider, in accident case, 108.
COMMON LABOR,
request for definition, 54.
COMPETENCY OF EVIDENCE,
duty of court to determine, 14.
COMPLAINING WITNESS,
credibility, 69.
CONCLUSIONS,
See PLEADINGS.
CONFESSIONS,
See CRIMINAL LAW.
charge as to, improper where no evidence, 120.
charge to disregard contradictory error, 32 n77.
court expressing belief in truth, 67.
credibility, charge on, improper, 32.
essentials to admission in criminal cases, 67.
evidence of, to support instruction, 120.
exculpatory matter in, Texas rule, 34 n51.
exculpatory matters, 67.
force and effect to be determined by jury, 28.
necessity of instruction on subject, 151.
subject matter for instruction, 67.
third-degree methods in obtaining, effect, 67.
voluntariness of, question for court or jury, 14, 67.
weight, charge on, improper, 32.
when court determines voluntariness, 14.
where accused pleads justification, 67.
518 INDEX
References are to Sections
CONFLICTING EVIDENCE,
question for jury, 15,
CONFUSING INSTRUCTIONS,
construction of charge as -whole, 136.
CONSPIRACY,
evidence to support instruction, 120.
CONSTRUCTION OF INSTRUCTIONS,
See INTERPRETATION.
CONSTRUCTIVE POSSESSION,
request for definition, 55.
CONTENTS,
See INSTRUCTIONS; SUBJECT MATTER OF INSTRUCTIONS.
abstract propositions, 121, 122.
alibi, 75.
assumption of agreed facts, 25.
assumption of facts, 23.
circumstantial evidence, 63-65.
confessions, 67.
definition of words and phrases, 54, 55.
disparagement of testimony of particular witness, 35, 37.
disparaging merits of case, 22.
excluded evidence, charge improper, 119.
explanatory matter, 136 n20.
good character in criminal cases, 60.
hypothetical statements, 21.
inferences of fact, 20, 28, 29.
Insanity, charge improper where no plea, 118.
interest of witness, improper comment, 40.
items of damages not in evidence, 119,
limitation of purpose of particular evidence, 56.
lower degree or grade of offense, 57.
opinion of court as to evidence, 29.
preponderance of evidence, improper comment, 30, 31.
quotations from decisions, 102.
recapitulation of testimony, 51.
recommendations of mercy, authorizing, 44.
reference to indictment, 99.
reference to other instructions, 100.
reference to pleadings, 98.
signature, 93.
stating reasons for legal rules, 12.
statutes, quoting, 101.
sympathy or prejudice appeals, 110.
theories of the parties in the case, 52, 53.
weight of evidence, improper charge, 27.
CONTINGENT FEE,
See PLEADINGS.
CONTRACTS,
assumption of facts, 23.
burden of proof of modification, 60.
comments and expressions of opinions by court, 31.
construction of, nrust be by court, 13.
function of court to construe, 13.
modification, burden of proof, 60.
INDEX 519
References are to Sections
CONTRACTS— Continued.
performance, question of fact for jury, 23.
rescission, burden of proof, 60.
CONTRADICTORY INSTRUCTIONS,
improper to give, 104.
CONTRADICTORY TESTIMONY,
effect on credibility of witnesses, 38.
error to charge, affects credibility, 41 n54.
weight is for jury, 27.
CONTRIBUTORY NEGLIGENCE,
abstract instructions, 121.
burden of proof wrongly placed, 138.
charge improper where no evidence, 119.
charge proper, though not pleaded, when, 117 n28.
effect of omitting doctrine of last clear chance, 136.
error for court to instruct on what would constitute, 31.
evidence of failure to instruct concerning ordinary care, 124.
evidence to support instruction, 119.
hypothetical instruction omitting reference to facts, 126.
jury must determine question, 23.
limiting, to defendant's, evidence is error, 124.
necessity of instruction where pleaded as defense, 123.
necessity of pleading, 118.
necessity of request for instruction on subject, 150.
not pleaded, instruction improper, 117.
question for jury, 23.
where there is neither pleading nor evidence to support, 115.
CONVICTS,
credibility as witnesses, 41, 69.
CORONERS,
conclusiveness of verdicts, charge on, 27.
CORPORATIONS,
appeals to prejudice, 110.
caution to jury against prejudice, 42.
charter, court construes, 13.
function of court to construe charter, 13.
prejudice of jury, caution, 42.
CORPUS DELICTI,
definition, necessity of giving, 55.
establishment of, question for jury, 28.
CORROBORATING EVIDENCE,
See EVIDENCE.
CORROBORATION,
accomplice testimony, 69,
credibility of witnesses, 38.
expression of opinion as to weight of corroborating evidence, 32.
extent required as to accomplice^ 69 n89,
meaning of, as to accomplice testimony, 69 n89.
sufficiency, question for jury, 28, 38.
COURT DECISIONS,
See FORM AND ARRANGEMENT; INSTRUCTIONS,
520 INDEX
References are to Sections
COURTS,
See TRIAL COURTS; FEDERAL. COURTS.
CREDIBILITY OF WITNESSES,
See WITNESSES.
application of maxim falsus in uno, 68.
argumentative instructions, 109.
contradictory evidence for jury, 38.
corroborating- evidence for jury, 38.
criminal cases, 41.
effect of relationship, 40.
evidence to support instructions, 120.
interested witnesses, 40, 68.
jury to determine, 37.
CRIMINAL INTENT,
establishment, jury determines, 28.
CRIMINAL LAW,
abstract instructions not to be given, 122.
accomplice testimony, where none testified, 120.
accused as witness, credibility, 41, 69.
accused not required to prove innocence, 62.
admissions of accused, where no evidence, 120.
advising- convictions, federal courts, 33 n32.
alibi, 63, 75, 120.
burden of proof, 62.
improper charge, 32.
subject of instruction, 72.
where no evidence, 120.
argumentative instructions, 109.
assuming crime committed, 66 n!8«
assumption of facts, 26.
burden of proof and preponderance of evidence, 62.
burden of proof as to insanity, 58.
charge amounting to direction to convict is erroneous, 17 n59.
circumstantial evidence, 64.
charge on weight to convict if witnesses believed, 27 n42.
comments and expressions of opinion by court, 28, 32.
confessions, 32, 67, 120.
charge as to credibility, improper, 32.
subject of charge, 67.
where no evidence, 120.
"conspiracy" denned, 55 n84.
construction of charge as entirety, 137*
converse of positive charge for the prosecution to be given, 11.
corroboration of accomplice, 69 n89.
court question whether evidence competent or material, 14.
credibility of accused, 41.
credibility of witnesses, 41.
credibility of witnesses as subject of charge, 69.
defective count in indictment, ignoring, 125.
defense not to be established beyond reasonable doubt, 59.
denning insanity, 58.
denning offense in language of statute, 55.
definition of terms in instructions, 55.
definitions, repetition, 96.
directing acquittal, facts stipulated, 17 n45.
directing acquittal, when discretionary, 17 n45.
direction of acquittal where evidence wholly lacking, 17.
INDEX 521
References are to Sections
CRIMINAL LAW— Continued.
direction of verdict, proper practice, 17.
direction of verdict under scintilla rule, 18.
disparaging comment on merits of case, 22.
duty of court to define offense accurately, 55.
duty of court to instruct without request on essential questions of
law, 4, 151.
duty of party to request more specific instruction, 152.
elements of offense, repetition unnecessary, 96 n8.
entrapment, where no evidence, 120.
error to place burden of proof on accused, 62.
essential questions to be covered for both prosecution and defense, 4.
evidence improperly admitted, charge on, 120.
evidence supporting- theories of guilt and of innocence, 62.
expert testimony, weight for jury, 28.
expression of opinion as to conclusiveness of dying declarations, 32.
expression of opinion as to possession of recently stolen property, 32.
expression of opinion, rule at common law, 33.
fact questions, 28.
failing to charge presumption of innocence, 62.
failure of accused to testify as subject matter of instruction, 71.
flight of accused, presumption, 66.
flight, what charge not proper, 32.
former jeopardy determined by jury, 17.
former jeopardy, where no evidence, 120.
function of court to determine sufficiency of foundation for admission
of evidence, 14.
good character as raising reasonable doubt, charge improper, 32.
good character, effect of proof on reasonable doubt, 60.
good character of accused as subject matter of instruction, 60.
homicide, degrees to be defined without request, 151 n95.
ignoring defenses of which there is evidence, 125.
ignoring issues and evidence, 125.
illustrations based on matters not in evidence, 120.
illustrations of proper and improper assumption of facts, 26.
indictment, ignoring defective count, 125.
indictment not evidence, 62 n76.
indictment not to be considered as evidence, 62.
indirect assumption of guilt, 26.
inferring guilt of accused, 69 n73.
informers, cautionary charge, 32 n4.
insanity as defense not to be disparaged, 58.
insanity, burden of proof, 58.
insanity of accused as subject matter of instruction, 58.
improper instruction, 32.
instruction on falsus in uno, falsus in omnibus, 69.
instruction on lower grade of offense, 57.
instruction on one crime not to be given in trial for another, 118.
instructions not pertinent to evidence not to be given, 50.
instructions to be construed as an entirety, 136.
intent, improper instruction, 32.
irresistible impulse, where insanity claimed, 57 n69.
jury's province invaded by court, instances, 28.
jury's right to recommend mercy, 44.
lower grade of offense, when charge proper, 57.
malice, presumption from use of deadly weapon, 32 n82.
manslaughter charge in murder case, 57 n69.
misleading or conflicting instructions, 103, 104.
motive or its absence, where no evidence, 120.
improper instruction, 32.
522 INDEX
References are to Sections
CRIMINAL LAW— Continued.
necessity of request for instruction as to penalty, 151.
palm prints of accused, whether voluntarily permitted, 14.
pertinency of instructions to evidence, 120.
pertinency of instructions to issues, 116.
presumption from flight as subject of instruction, 66.
presumption of innocence, charge required, 62.
presumption of innocence not to be disparaged, 62.
presumption of innocence part of the law, 62.
presumption of sanity, 62.
principals, who are, 53 n98.
qualifying verdict, 44 n62.
rape case, cautionary instruction, 42 n2.
rape, charges as to, when to be requested, 151.
reading information to jury, 50 n41.
reasonable doubt as between grades of offense, 57.
reasonable doubt as subject of instruction, 59.
reasonable doubt not mere possibility, 59 nn96, 97.
reasonable doubt, single juror's, 43.
recommendation of mercy by the jury, 44.
reference to indictment or information, 99,
referring to defendant as the "prisoner at the bar," 116.
repetition of definitions, 96.
repetition of instructions, 96.
requests, 150, 151,^154.
accidental killing, 151.
accomplice testimony, 151.
alibi, 151.
circumstantial evidence, 151.
confessions, 151.
credibility of witnesses, 151.
dying declarations, 151.
evidence of other crimes, 151.
good character, 151, 154.
insanity as defense, 154.
lower grade of offense, 151.
lunatics as witnesses, 151.
penalty of offense, 151.
provocation, 151.
reasonable doubt, 151.
self-defense, 151, 154.
threats, 151, 154.
right of accused to charge on whole law of case, 53.
scintilla of evidence, rule as to directing acquittal, 17, 18.
self-defense, burden of proof, 62.
self-defense to be proved by preponderance, 62.
subject matter of instructions, 69.
suicide as evidence of insanity, error, 107 n21.
test of duty of court to direct acquittal, 17.
theories of case as subject matter, 53.
threats, where no evidence, 120.
undue prominence to particular matters, 107.
verdict, coercing jury to reach, 45.
verdict of guilty, when directed, 17, 18.
weight of evidence, 28.
CUKE,
See ERRONEOUS INSTRUCTIONS; INTERPRETATION.
INDEX 523
References are to Sections
D
DAMAGES,
See EXEMPLARY DAMAGES.
aggravation, necessity of pleading to justify instruction, 117.
allowance of exemplary damages at jury's discretion, 10.
exemplary, charge improper where malice not shown, 119.
instruction to cover only elements in evidence, 119.
items not covered by evidence, 119.
jury's discretion in awarding exemplary, 10.
measure of, charge without request, 150 nn3, 34.
necessity of pleading aggravation to justify submission, 117.
necessity of pleading particular items, 117.
necessity of request for instruction on subject, 150.
DEADLY WEAPON,
malice, presumption from using, 32 n82.
DEFECTIVE BRAKES,
See IGNORING EVIDENCE.
DEFECTIVE COUNT,
See INDICTMENT.
DEFINITIONS,
See BEQUESTS.
abstract instructions, 122.
accessories, 101 n58.
accessories after the fact, 55 n35.
accomplice, 69 n68.
admissions of parties, 34.
common design, 55 n84.
commonly understood words or phrases, 54.
conspiracy, 55 n84.
duty of court to define terms in criminal trials, 55, 151.
duty of party to request, 152.
generally understood terms need not be defined, 54, 55.
insanity, 58.
instructions, 1.
necessity for request for instruction on subject, 150.
preponderance of evidence, 61.
prompt and proper treatment by doctor, 54 n4.
reading to jury from dictionary, 55 n84.
refusal of request where matter sufficiently covered in charge, 159.
repetition not required, 95, 96.
repetition unnecessary, 96.
sabotage, 55 n84.
sufficiency of objection to erroneous definition, 173.
technical or legal terms in criminal cases, 55.
terms in instruction, 54.
words used in legal or technical sense, 54.
DEGREE OF OFFENSE,
See LOWER DEGREE OP OFFENSE.
DEMEANOR OF WITNESSES,
See WITNESSES.
testing credibility, 39.
DEMURRER TO EVIDENCE,
See PRACTICAL SUGGESTIONS.
524 INDEX
[References are to Sections
DETECTIVES,
buying liquor to entrap accused, 68 n47.
comment on weight of testimony, 32.
credibility, 39, 41, 69.
expression of opinion as to weight of testimony, 32.
undue prominence to testimony, 107.
weight of testimony, improper comment, 32.
DILIGENT INQUIRY,
necessity for definition, 54.
DIRECTION OF VERDICT,
See SCINTILLA OF EVIDENCE; VERDICTS.
both parties moving for, 16.
civil cases, 15.
criminal cases, facts as consistent with innocence as guilt, 17.
criminal trials, 17, 18.
distinguished Irom granting new trial, 15.
essentials of instruction, 123.
evidence undisputed, 16.
function of court on weight of evidence, 15.
Louisiana practice, 15.
opening statement, based on, 15.
proper practice in criminal trials, 17.
tests used in granting or denying, 15.
verdict of guilty, when directed, 17.
when invasion of jury's province, 10.
DISCRETION,
See TRIAL COURTS.
cautionary instructions, given, 42.
charging against quotient verdict, 75.
courts, 19, 70, 90.
comment on failure of party to testify or call witness, 70.
elaborating on instructions, 90.
summarizing evidence, 19.
giving cautionary instruction, 42, 43.
jury's, 10, 44.
awarding exemplary damages, 10.
recommending mercy in criminal cases, 44.
recapitulation of testimony by court, 51.
trial courts, 5, 150.
giving instructions, 5.
waiver of time to tender requests, 150, 150 n46.
waiver of time to file requests for instructions, 150, 150 n46.
DISPARAGEMENT BY COURT,
See ERRONEOUS INSTRUCTIONS; PREJUDICIAL ERROR.
alibi as defense, 72.
circumstantial evidence, 65.
expert witnesses, 35.
good character of accused, 60.
insanity as defense to crime, 58.
instructions minimizing value of testimony of witnesses, 37.
merits of case, 22.
presumption of innocence, 62.
statement of accused, Georgia rule, 69.
testimony of witnesses, 37.
INDEX 525
References are to Sections
DOCUMENTS,
See PROVINCE OF COURT AND JURY.
contracts, 13.
corporate charters, 13.
domestic statutes, 13.
exhibited but not introduced in evidence, 120.
failure of party to produce, comment by court, 70.
function of court to interpret, 13.
instructions based on documents admitted in evidence, 120.
insurance policies, 13.
leases, 13,
letters, 13.
mortgages, 13.
ordinances, 13.
tax titles, 13.
telegrams, 13.
trial court's function to interpret, 13.
wills, 13.
DYING DECLARATIONS,
argumentative instructions, 109.
charge improper where no evidence, 120.
comment by court on weight, 32, 41,
evidence to support instruction concerning, 120.
expression of opinion as to weight, 32, 41.
necessity of request for instruction on subject, 151.
undue prominence, 107.
E
ENTIRETY,
See INTERPRETATION.
argumentative instruction, 137.
assumption of facts in charge, 137.
charge to be construed as a whole, 136.
construction as, in criminal cases, 137.
expert testimony, 137.
flight of accused, presumption arising, 137.
instructions to be construed as a whole, 136.
province of jury invaded, 137.
reasonable doubt erroneously presented, 137.
recent possession of stolen property, 137.
single instruction not to be separated from others, 136.
testimony of accomplices, 137.
testimony of detectives, 137.
testimony of interested parties, 137.
testimony particular witness singled out for comment, 137.
verbal defects to be disregarded, 136, 137.
weight of evidence instructed, 137.
where charge partly oral and partly written, 137.
ENTRAPMENT,
error to charge on, in absence of evidence, 120.
ERRONEOUS INSTRUCTIONS,
See PREJUDICIAL ERROR.
ambiguity may be cured by other instructions, 140.
criminal cases, error not cured by correct charge, 139.
cure by correct instruction not generally allowable, 138.
failure of jury to follow, not reversible error, 3.
526 INDEX
References are to Sections
ERRONEOUS INSTRUCTIONS— Continued
oral, not cured by written, 138.
repugnancy, whether misleads the jury, 138.
withdrawal only means of curing, 138, 141.
ERROR,
See PREJUDICIAL ERROR.
ESCAPE,
expression of opinion as to attempt, 32.
ESSENTIAL QUESTIONS,
instruction on, to be given whether requested or not, 4, 151.
theories of both prosecution and defense to be covered, 4.
ESTOPPEL,
absence of evidence, instruction improper, 119.
instruction not to be given on unless pleaded, 117.
EVIDENCE,
See BURDEN OF PROOF; CREDIBILITY OF WITNESSES; WITNESSES.
accomplice testimony, credibility, 41, 68.
admissibility question for court, 14.
bloodhounds, credibility of acts and performances, 41.
children, credibility question for jury, 41.
circumstantial, 63-64.
civil cases, 63.
criminal trials, 64.
weight a question for jury, 36.
comments and expressions of opinion by court, 29.
competency determined by court, 14.
construction of charge with respect to issues, evidence, and other
instructions, 135.
contradictory evidence, weight for jury, 27.
contributory negligence, single instance basis of charge, 106.
corroborating, comment by court on weight, 38.
directing attention to evidence of one side only, 106.
direction to disregard, not part of instructions, 1.
disparagement of testimony of witnesses, 37.
disregarding, where erroneously admitted, 73.
distinction between presumption and inference, 20.
emphasizing burden of proof, 106 n85.
emphasizing doctrine of last clear chance, 106.
erroneous statement as to preponderance, 30.
error for court to determine weight, 27.
excluded or withdrawn, charge on not to be given, 119.
expert or opinion, weight for jury, 28, 35.
expression of opinion as to, prejudicial error, 29.
flight, presumption, 62, 66.
ignoring evidence in the charge, 124.
ignoring material, improper, 124.
improper to instruct on excluded evidence, 119.
indictment not to be considered as evidence, 70.
inferences from, to be drawn by the jury alone, 20.
innocence, presumption, 70.
instances of improper charge on weight, 27.
instances of improper comment on preponderance, 30, 31,
instructions ignoring evidence, 124.
limitation of purpose as subject of instruction, 56.
limitation of purpose of particular, 56.
materiality determined by court, 14.
INDEX 527
References are to Sections
EVIDENCE— Continued.
meaning of preponderance of evidence, 61.
necessity of request for instruction limiting purpose, 150.
necessity of request for instruction on effect of particular evidence,
151.
necessity of request for instruction on value of positive and negative
testimony, 151.
negative, weight to be determined by jury, 36.
negligence, single instance basis of instruction, 106.
not charge on facts to disregard incompetent testimony, 27.
pertinency of instruction to evidence, 50, 119, 120.
positive and negative testimony, instruction, 65.
positive, error to charge on weight, 36.
prejudicial charge on weight of circumstantial, 36.
preponderance, expression of court's opinion, 30.
preponderance in civil cases, 61.
preponderance in criminal cases, 62.
presumption from flight, 62, 66.
presumption of innocence, 62.
presumptions of fact for jury, 20.
prima facie evidence of guilt is legal question, 12.
prostitutes, credibility, 41.
purpose, limitation, 56.
recapitulation of testimony, 51.
scintilla, rule in federal courts, 18.
setting out evidence to support verdict, 126.
singling out expert witnesses for disparaging comment, 106 n96.
singling out particular features for comment, 106.
singling out 2 witnesses from 30 for comment, 107 n21.
stressing testimony of particular witness, 106.
suicide as evidence of insanity, error to charge, 107 n21.
summing up by the court, 19.
testimony erroneously received, disregarding, 73.
undisputed, direction of verdict, 16.
undue prominence, eight instructions on due care, 106 n85.
undue prominence to matters of evidence, 106.
variance from pleading, peremptory instructions, 15.
weight of contradictory evidence for jury, 27.
X-ray, understressing as dangerous instrument, 106- n88.
EVIDENCE LACKING,
See PREJUDICIAL ERROR.
accessories after the fact, 120.
accident in personal injury case, 119.
accomplice testimony, 120.
alibi, 120.
city ordinance, 119.
confessions and admissions, 120.
conspiracy, 120.
contributory negligence, 119,
credibility of witnesses, 120.
dying declarations, 120.
entrapment, 120.
estoppel, 119.
financial condition defendant in slander action, 119.
flight of accused, 120.
foreign statute, 119.
former jeopardy, 120.
insanity, 120.
intoxication of driver, 119.
528 INDEX
References are to Sections
EVIDENCE LACKING— Continued,
last clear chance doctrine, 119.
malice authorizing exemplary damages, 119.
motive, 120.
threats, 120.
EXCEPTIONS AND OBJECTIONS,
See PRACTICAL SUGGESTIONS; TIME.
after motion for new trial, too late, 171.
after verdict, too late, 171.
argumentativeness as ground, 173.
assumption of facts as ground, 173.
before jury retires, 171.
casual remark as to error not sufficient, 172 n46.
counsel's absence not waiver of right, 170.
erroneous definitions as ground, 173.
erroneous Instruction, duty of counsel, 170.
error waived by failure to except, 175.
estoppel to claim error, 175,
exceptions to be taken before jury retires, 171.
"except to that part defining wantonness," insufficient, 173 n53.
failure to except, effect on waiver of error, 175.
form and statement, 172.
function is to point out errors, 170.
general exception to entire charge where part is correct, 174.
general exception, when sufficient, 173, 173 n53.
general, to entire charge, 174.
grounds to be clearly stated, 172, 173.
illustrations of, insufficient, 172.
"improper measure of damages," not specific exception, 173.
inaccuracies as ground, 173.
inconsistencies as ground, 173.
misleading in character as ground, 173.
mode of objecting, 170.
must be specific enough to point out vice in charge, 173.
necessity, 170.
not necessary to submit to opposing counsel, 170.
objection merely is not equivalent of exception, 173.
particularity required in objection, 173.
parts of a sentence only, too general, 172.
right to object, 170.
stating charge is "insufficient," not an exception, 173.
test of sufficiency is whether error pointed out, 172.
timeliness of objection, 171.
time when to be taken, 171.
vagueness as ground, 173.
waiver, 175.
waiver of written charge, 171.
when ineffective, 170.
when not necessary, 170.
who may object, 170,
EXEMPLARY DAMAGES,
allowance in jury's discretion, 10.
charge improper where no evidence of malice or wantonness, 119.
indication in verdict, 76.
necessity of definition of term, 54.
EXPECTANCY OF LIFE,
See AMERICAN MORTALITY TABLES.
INDEX 529
References are to Sections
EXPERIMENTS,
results as question for jury, 28.
EXPERT TESTIMONY,
See WITNESSES.
argumentative instructions, 109.
cautionary instruction, 35.
comments on weight in instructions, 35.
credibility, 41, 69.
disparagement by court improper, 35.
evidence to support hypothetical question, 35.
function of court to determine qualification of witness, 35.
error to instruct such evidence but little value, 35.
error to instruct that such evidence is weak, 35.
jury not to be told such evidence is advisory only, 35.
qualification of witness matter for the court, 35.
weight is for jury to determine, 35.
EXPERT WITNESSES,
See EXPERT TESTIMONY.
EYEWITNESS TO HOMICIDE,
See WITNESSES.
P
FALSE IMPRISONMENT,
instruction on subject, 12.
FALSUS IN UNO, FALSUS IN OMNIBUS,
essentials of instruction, 168.
instruction as to, in criminal trial, 41^ 69.
necessity of request for charge on subject, 150, 151.
power of court to instruct, 37.
FEDERAL COURTS,
cautionary charge as to accomplice testimony, 69.
scintilla of evidence, rule, 15, 18.
state statutes cannot forbid comment of federal judge, 33.
summarizing evidence, both sides to be stated, 19.
FELLOW SERVANT,
See IGNORING ISSUES; NEGLIGENCE.
FELLOW-SERVANT DOCTRINE,
defense pleaded, instruction necessary, 123.
request for definition, 151.
FELONIOUS INTENT,
See IGNORING EVIDENCE.
FINGERPRINTS,
whether War Department's records are public records, 14.
FLIGHT,
charge on, without mention of accused's explanation, 120 n!9.
defendant's explanation of reason should not be ignored, 125.
error to charge on, in absence of evidence, 120.
error to charge presumption of guilt, 62.
evidence to support instruction, 120.
530 INDEX
References are to Sections
FLIGHT — Continued.
expression of opinion as to presumption of guilt, 32.
improper instruction, 32.
presumption from flight as subject of instruction, 62, 66.
rebuttal of presumption, 66,
request to charge on defendant's explanation, necessity, 151.
FOREIGN LAW,
court interprets foreign statutes, when, 13.
instruction improper where not proved, 119.
jury determines existence from evidence, 13.
should be proved before instruction given, 119.
FOREIGN STATUTES,
See FOREIGN LAW.
FORGERY,
defense of authority, 125 n23.
FORMAL STATEMENT OF ISSUES,
when need not be made, 4.
FORM AND ARRANGEMENT,
See INSTRUCTION'S.
appeals to sympathy or prejudice, 110.
approved forms not required to be used, 94 n85, 102 n91.
argumentative instructions, 108, 109.
burden of proof, unnecessary to repeat charge, 95 n92.
clearness of expression, 94.
contradictory instructions, 104.
contributory negligence facts to be grouped, 90 n2.
copying pleadings improper, 98.
elements of offense, repetition unnecessary, 96 n8.
excessive length, 103.
form and arrangement unimportant, 90.
grouping several propositions, 90 n4.
inaptness of statement, effect, 94 n86.
length, 103.
length as defect, 103.
limitation on number given, 97.
marking and signing, 92.
matters covered in single instruction, 90.
misleading instructions, 103.
notation of appellate court opinions on margins of instructions,
102 n96.
oral charge, when may be given, 91.
pleadings, referring jury to, for issues, 98.
quoting from court opinions, 102.
quoting law text-writers, 102 n92.
reading from statutes, 101.
reading full report of appellate court case, 102 n94.
reading instructions to jury, 93.
reading pleadings to jury as statement of issues, 98 n31.
reading statute where written charge required, 91 n95.
reasonable doubt, following language of statute, 101 n59.
reference to indictment or information, 99.
reference to other instructions, 100.
reference to pleadings for issues, 83.
repetitions, 95, 96.
separating negligence and contributory -negligence, 90 n6.
INDEX 531
References are to Sections
FORM AND ARRANGEMENT— Continued,
single instruction confusing, 90 n6.
special findings, interrogatories, 111, 112.
special findings or verdict, 111, 112.
test of sufficiency, 103 nl.
underscoring words and phrases not proper, 107.
undue prominence to particular matters, 106, 107.
unreasonable number, 97.
use of "approximate" instead of "proximate," 94 n85.
written instructions required, 91.
FORMER ACQUITTAL,
establishment as question for jury, 28.
FORMER JEOPARDY,
charge improper where no evidence, 120.
question determinable by jury, 17, 28.
FRAUD,
degree of proof, request to charge, 150.
law abhors is argumentative, 106.
request to charge, necessity for, 150.
G
GENERAL EXCEPTION,
insufficient as predicate for error, 173, 174.
GOOD CHARACTER,
See CHARACTER.
GUILTY KNOWLEDGE,
establishment determined by jury, 28.
H
HABITUAL DRUNKARD,
definition, necessity, 54.
HANDWRITING,
court's opinion as to weight, 31.
HEAT OF PASSION,
definition, necessity, 55.
necessity of request for definition, 151.
HOMICIDE,
See CRIMINAL LAW; LOWER DEGREE OF OFFENSE.
degrees to be defined without request, 151 n95.
HONEST ACQUISITION,
See IGNORING EVIDENCE.
HUMANITARIAN DOCTRINE,
charge on, improper unless pleaded, 123.
ignoring issue in charge, 123.
request for charge, necessity, 150.
HYPOTHETICAL STATEMENTS OF FACTS,
assumption of controverted facts, 21.
facts unsupported by evidence, 21.
532 INDEX
References are to Sections
HYPOTHETICAL STATEMENTS OP FACTS— Continued,
hypothesis opposed to all testimony, 21.
must embrace all the issues, 21.
statement must be complete to support verdict indicated, 21.
when invasive of jury's province, 21.
I
IDENTIFICATION,
charge incomplete, request for additional instruction, 153.
IGNORING EVIDENCE,
See IGNORING ISSUES.
agreement, in prosecution for conspiracy, 125 n20.
charge on part only of material facts, 124.
conceded facts, 124.
defective brakes on automobile, 124 n89.
defense in criminal trial, 125.
defense of authority in forgery charge, 125 n23.
documentary evidence, 124.
explanation of flight by accused, 125.
felonious intent in larceny case, 125.
forgery, defense of authority, 125 n23.
food faith of banker making false entries, 125 n40,
onest acquisition, charge in theft case, 125.
ratification, in action based on agency, 124.
statutes and ordinances, 124.
tending to reduce grade or punishment, 125.
venue in criminal case, 125 n9.
IGNORING ISSUES,
See IGNORING EVIDENCE.
adverse possession in action of ejectment, 123.
appreciation of danger, in charge on assumption of risk, 123 n66.
assumption of risk, 123.
contributory negligence, 123.
defense supported by evidence, 123.
directing verdict on only one count of complaint, 123.
elements of proximate cause, 123.
failing to warn of danger, 123.
failure to furnish safe place to work, 123.
good faith, in action for unlawful arrest, 123.
hostile occupancy in action as to adverse possession, 123.
humanitarian doctrine, 123.
last clear chance, 123.
material issues all to be covered, 128.
mitigation in slander action, 123,
negligence of fellow servant, 123.
ordinary care in negligence case, 123.
reliance, in action for misrepresentation, 123.
requests, duty of party to tender, 152 n!6.
res ipsa loquitur doctrine, 123.
set-off, plea of, 123.
statute of limitations, 123.
unavoidable accident, 123.
verdict directed, all elements to be covered, 128.
IMMINENT PERIL,
definition, necessity, 54,
INDEX 533
References are to Sections
IMPAIRED EARNING CAPACITY,
See ARGUMENTATIVE INSTRUCTIONS.
IMPEACHMENT,
See EVIDENCE; WITNESSES.
cautioning jury against evidence, 38.
credibility of impeached witness, 41, 69.
error to caution against weight of impeaching evidence, 38.
instructions as to, invading province of jury, 37.
necessity for instruction on subject, 150.
necessity of request for instruction on subject, 151,
purpose of testimony limited, 56.
success of impeachment question for jury, 28.
sufficiency of evidence, 14.
undue prominence given testimony in instruction, 107.
IMPLIED MALICE,
definition, necessity, 55.
INCONSISTENT INSTRUCTIONS,
impropriety of giving, 104.
INCONSISTENT REQUESTS,
court's right to refuse, 161.
INDICTMENT,
abandoned counts, ignoring, 125.
burglary charge, instruction on larceny improper, 118.
charge on crime not included, 118.
count barred by limitation, 118.
defective count, ignoring, 125.
larceny, charge on, under indictment for embezzlement, 118.
limitation, count barred, charge improper, 118.
no instruction given on defective counts, 125.
not to be considered as evidence, 62.
pertinency of instructions to indictment, 118.
reference to, for issues, 99.
INFERENCES OF FACT,
See EVIDENCE.
court without right to direct jury what to draw, 20, 29.
distinguished from presumption, 20.
only jury may draw, from evidence, 20, 28.
res ipsa loquitur, 20.
INFORMERS,
cautionary charge concerning testimony, 32 n4.
INNOCENCE,
See PRESUMPTION OF INNOCENCE.
INSANITY,
accused's lunacy as subject for instruction, 58.
burden of proof as to, in criminal trial, 58, 62.
charge improper where evidence shows merely weak mind, 120 n!6.
court may not disparage defense, 58.
defining, 58. . . .
effect of adjudication and judgment in criminal trials, oo, oA
evidence necessary to support instruction, 120.
evidence wholly lacking, charge improper, 120.
expression of opinion as to acts as symptoms, 32.
534 INDEX
References are to Sections
INSANITY— Continued.
improper instruction, 32.
necessity of recital in verdict of acquittal, 76.
plea necessary to justify instruction, 118.
proof of, question for jury, 28.
request for instruction on subject, when necessary, 154.
where no plea, instruction not to be given, 118.
INSTRUCTIONS,
See CONTENTS; FORM AND ARRANGEMENT; PRACTICAL SUGGESTIONS;
REQUESTS; SUBJECT MATTER OF INSTRUCTIONS.
abandoned issues, charge improper, 119.
abandoned or withdrawn issues, 117.
abstract, definitions, 122.
abstract instructions not to be given in civil or criminal trials,
121, 122.
abstract propositions, 121, 122.
additional, requests necessary, 152, 153.
adoption of charge prepared by parties, 2.
alibi as subject matter, 72.
all theories of case to be covered, 52, 53.
argumentative, 108, 109.
argument of counsel, 74.
assumption of facts agreed upon, 25.
assumption of facts by court, 2S5 25, 26.
assumption of facts by court, undisputed facts, 23, 26.
assumption of facts in criminal cases, 26.
authorizing jury to recommend mercy, 44.
circumstantial evidence, 63-64.
clearness of expression, 94.
compromise verdicts, 75.
confessions as subject matter, 67.
construction, 135.
copying pleadings improper, 98.
court's disparagement of testimony of witnesses, 35, 37.
court's right to state reasons for legal rule, 12.
damages, items not covered by evidence, 119.
definition, 1.
definition of terms, 54, 55.
definition of words in criminal trials, 55.
directing verdict if jury finds specified facts, 126.
discretion of trial court in giving, 5.
disparaging statements of court on merits of case, 22.
disregarding evidence erroneously admitted, 73.
duty of court to charge, 4.
entirety, instructions to be construed as, 136.
error for court to charge on weight of evidence, 27.
error for court to express opinion as to evidence, 29.
error if charge deprives court or jury of proper function, 10.
examples of wrongful assumption of facts by court, 23.
excluded evidence, charge unnecessary, 119.
explanatory, how construed, 136 n20.
falsus in uno, falsus in omnibus, 69.
federal courts, rule as to comment on evidence, 33.
form and arrangement, 90-110.
good character in criminal trials, 60.
hypothetical statements of fact, requisites, 21.
ignoring issues, 123, 124.
ignoring issues or evidence, 123-125.
improper comment on preponderance of evidence, 30, 31.
INDEX 535
References are to Sections
INSTRUCTIONS— Continued.
impropriety of undue prominence to particular features, 105-107.
inferences of fact, court may not direct, 20, 28, 29.
informing jury which party made request, 72.
insanity, defining, 58.
insanity, plea necessary to justify, 118.
instances of improper charge on weight of evidence, 27.
interest of witnesses, court's comment, when proper, 40.
interpretation and effect, 135.
invasion of jury's province by assumption of facts, 23.
law^ of the case that jury must follow, 3.
limiting the purpose of particular evidence, 56.
lower grade or degree of crime, 57.
manner of reaching verdict, 75.
marking and signing, 92.
length, 103.
matters not constituting, 1.
misleading if not pertinent to evidence, 119.
misleading if not pertinent to pleadings, 117.
misleading or contradictory, 103, 104.
number, limitation, 97.
office of charge, 2.
peremptory, when to be given, 15.
peremptory, where evidence undisputed, 16.
peremptory, where variance between allegation and proof, 15.
pertinency to pleadings and evidence, 115-126.
presumption of innocence, 62.
quotient verdict, caution, 75.
quoting statutes or decisions, 101, 102.
reading to jury, 93.
recapitulation of testimony, discretion of court, 51.
reference to pleading or indictment for issues, 98, 99.
referring to other instructions, 100.
remarks and admonitions no part of charge, 1.
repetition, 95, 96.
requests, when necessary, 150, 151.
should cover theories of both sides, 11.
signing, 93.
special verdicts or findings, 111, 112.
statements of counsel to be disregarded, 73.
subject matter where requests to charge required, 150, 151.
sympathy or prejudice, appeals to, 110.
time for requesting, 151, 152.
underscoring words and phrases, 107.
undue prominence to certain features, 105-107.
verdicts by lot, 75.
written and oral instructions, 91.
INTERESTED WITNESSES,
See WITNESSES.
INTERPRETATION,
See ENTIRETY; PROVINCE OF COURT AND JURY; PRACTICAL SUGGESTIONS.
"accidental death" and "death by accidental means," distinction, 138.
alibi as defense, 137.
ambiguity cured by another instruction, 140.
assumption of facts incurable, 138.
burden of proof, erroneous charge not cured, 138 n54.
burden of proof of contributory negligence, error in charge, 138,
charge partly written and partly oral, 137.
536 INDEX
References are to Sections
INTERPRETATION— Continued.
charge permitting recovery for negligence not alleged, error, 138 n54.
charge to convict both defendants if either guilty, error, 139.
construction of charge as an entirety, 136, 137.
construction of words "if proven," 135.
construction with reference to issues, evidence, and other instruc-
tions, 135.
court's derogatory statements as to defense, 139.
criterion or test of correctness, 136 n26.
cure by withdrawal of erroneous charge, 141.
cure of ambiguous instruction by other instructions, 140,
cure of erroneous instruction by withdrawal, 141.
cure of erroneous instruction is withdrawal from jury, 138, 139.
damages not pleaded, authorizing jury to consider, 138 n62.
distinguished from construction, 13.
elements of offense, 137.
erroneous instructions not cured by another correct one, 138.
errors immaterial where verdict should be directed for defendant,
136.
explanatory instruction, how construed, 136 n20.
flight, charge presumption of guilt from, not cured, 139.
inapt definition of contributory negligence, 136 n23.
inconsistent instructions erroneous, 136 n!4; 138, 139.
instruction, injured person was guilty of negligence, 138.
instruction not required to contain all law on subject, 136.
instructions construed as series, 136.
instructions presenting opposing theories, 136.
language given common sense meaning, 135.
malice, incorrect definition, 139.
misleading special instruction not cured by general charge, 136 n!4.
no cure of erroneous instruction by correct instruction, 138.
omission from one instruction cured by inclusion in others, 136 n20.
papers and documents, 13,
refusal of requests sufficiently covered by other instructions, 159,
repugnancy, whether misleads jury, 138.
requiring defendant to prove defense beyond reasonable doubt, 139,
139 n72.
self-defense, erroneous instruction not cured, 139.
self-defense insufficiently charged, 137.
shifting of burden of proof, 138 n54.
single instruction need not embrace all the issues, 136.
sound mind, erroneous definition, 138.
taken as understood by men of ordinary intelligence, 135 n7.
verbal inaccuracies disregarded, 136.
viewed from standpoint of jury, 135.
wrong- reason given for a correct rule, 136.
INTERROGATORIES,
See SPECIAL VERDICT OB FINDINGS.
INTOXICATION,
contributory negligence, argumentative charge, 108.
IRRESISTIBLE IMPULSE,
See CRIMINAL LAW.
ISSUES,
See IGNORING ISSUES.
abandoned or withdrawn, instruction improper, 117, 123.
assumption of facts in statement, 24.
both affirmative and negative of issues to be submitted, 52,
INDEX 537
References are to Sections
IS SUE S— Continued.
construction of instruction with reference to issues, 135.
copying pleadings, improper practice of stating, 98.
formal statement need not be made, when, 4.
function of court to outline, 11.
ignoring issues in charge, 123.
improper to instruct on abandoned or withdrawn issues, 117.
insanity, plea necessary, 118.
necessity of submission of all issues, 52,
negligence, charge confined to allegations, 117.
omitted from charge, duty to tender requests, 152 n!6.
pertinency of instructions to issues and evidence, 50.
pertinency to issues in pleadings required, 115.
reference to indictment, 99.
reference to pleadings for issues, 98.
taken out by demurrer, charge improper, 117 n21.
J
JUDGES,
See TRIAL COURTS.
JUDGMENTS,
court's province to construe, 13.
JURORS,
See JURY.
JURY,
See PRACTICAL SUGGESTIONS; PROVINCE OP COURT AND JURY.
arrest, cannot determine whether lawful, 10 nl.
cautioning individual members, 43.
caution to individual jurors, 42.
coercion by court improper, 45.
court invades province by expressing opinion as to evidence, 29.
demeanor of witnesses, consideration given, 39.
disagreeing, coercion by court improper, 45.
discretion in recommending mercy, 44.
duty to follow court's instructions, 3.
error to deprive of proper function, 10.
exclusive province to draw inferences from evidence, 20.
failure to follow erroneous charge not reversible error, 3.
foreign law, jury to determine existence, 13.
functions of jury, 10-46.
instruction as to duty of disagreed jury, 45.
instructions viewed from jury's standpoint, 135.
invasion by court of province of, what constitutes, 10.
invasion of province by court, instances, 28.
judges of weight of testimony, 40.
material allegations in pleading, leaving jury to determine, 10.
men of understanding and intelligence, 135.
not allowed to determine enforceability of a contract, 10 nl.
personal ideas of jurors, aside from law and evidence, 11.
private communications with judge not allowable, 46.
province invaded by disparaging comments on merits of case, 22.
province of court and jury, 10-46.
reasonable doubt as between degrees of offense, duty, 57.
reasonable doubt of single juror, 43.
recommendations of mercy, 44.
right to recommend mercy in criminal cases, 44.
sole judges of credibility of witnesses, 40.
538 INDEX
References are to Sections
JURY— Continued.
taking instructions to jury room, 93.
verdict based on personal ideas not to be returned, 11.
verdict, coercion by court, 45.
verdict in violation of court's instructions, 8.
weight of admissions of parties is for jury, 34.
K
KU KLUX KLAN,
See PREJUDICIAL ERROR.
L
LARCENY,
charge on, under indictment for embezzlement, 118.
LAST CLEAR CHANCE,
See NEGLIGENCE.
charge improper where no evidence to support, 119.
emphasizing doctrine, 106.
evidence to support instruction, 119.
ignoring in instruction, when proper, 175.
necessity of defining term, 54.
necessity of pleading to justify submission, 117.
necessity of request for instruction on subject, 150.
not pleaded, when instruction permitted, 117 n33.
request to be made for charge, 150.
LAW OF THE CASE,
charge as to imputed negligence in automobile collision, 3 n38.
court's instructions are, 3.
instructions are, though incorrect, 3.
LEGAL CONCLUSIONS,
See PLEADINGS.
LIBEL,
pleading qualified privilege, 117.
LIMITATION,
count of indictment barred, instruction improper, 118.
evidence limited, scope and effect to be explained, 56,
impeachment evidence, purpose limited, 56.
purpose of particular evidence, 56.
statute of, ignoring in charge, 123.
LOWER DEGREE OF OFFENSE,
authorizing conviction, 57.
charge on weight, 27 n29.
manslaughter charge in murder case, 57 n69.
reasonable doubt of jury as between degrees, 57.
reasonable doubt, when may acquit, 57.
when instruction may be given authorizing conviction, 57.
where no evidence of lower degree instruction not to be given, 118.
M
MAILS USED TO DEFRAUD,
prejudicial instruction in prosecution, 21.
INDEX 539
References are to Sections
MALICE,
incorrect definition not cured, 139.
presumption from use of deadly weapon, 32 n82.
MANSLAUGHTER,
See CRIMINAL LAW.
MARKING AND SIGNING,
See FORM AND ARRANGEMENT; INSTRUCTIONS.
MERCY,
See RECOMMENDATION OP MERCY.
MISLEADING INSTRUCTIONS,
abandoned or withdrawn issues , 117.
clear expression to avoid, 156.
confusion of jury by giving, 103.
effect using "defendant" for "plaintiff," 103.
how tested, 136.
improper to give, 103.
sufficiency of exception, 174.
MISREPRESENTATION,
necessity of defining, 54.
MODIFICATION,
abstract proposition in request to charge, 156.
argumentative matter, striking from request, 156.
change of request without party's consent, 156 n65.
changing "should find" to "may find" in request, 156.
corrections in requests to charge, 156 n66.
court may modify requests, 156.
requested instructions, 156.
statutes prohibiting change of requests, application, 156 n65.
striking repetitions from requested instruction, 156,
substitution correct instruction for incorrect request, 156.
MORTGAGES,
court's duty to construe, 13.
MOTIVE,
error to instruct on, when, 32, 120.
improper instruction, 32.
lack of, to be taken favorably to accused, argumentative, 109.
N
NEGATIVE EVIDENCE,
comments on weight in instructions, 36.
necessity of definition of term, 54,
subject matter of instruction, 65.
NEGLIGENCE,
abstract instructions, 121.
accident not to be charged where negligence shown, 119.
assumption of facts, 23.
assumption of risk, charge where pleaded, 123.
charge as to driving wrong side of street but ignoring purpose, 124.
charge confined to negligence alleged, 117.
charge on specific acts where no evidence supports, 119.
contributory, charge proper though not pleaded, 117 n28.
540 INDEX
References are to Sections
NE GLIGENCE— Continued.
contributory, charge when pleaded, 123.
drunkenness of driver, charge not to be given where no evidence, 119.
elements of proximate cause, 123.
erroneous instruction not cured by others, 138.
expression of opinion as to evidence, 31.
failing to state plaintiff must not have been negligent, 124.
failure to safeguard machinery as, argumentative charge, 108.
fellow servants, 123.
furnishing safe place to work, 123.
last clear chance, 123.
last clear chance, when not pleaded, 117.
limiting contributory, to defendant's evidence, 124.
necessity of definition, 54.
ordinary care, 123.
pointing out what acts constitute, argumentative, 108.
prejudicial error in charges, 138.
question for jury, 23.
res ipsa loquitur, 123.
res ipsa loquitur doctrine ignoring other driver's negligence, 124.
shown by evidence, charge on accident improper, 119 n80.
specific acts without supporting evidence, 119.
unavoidable accident, 123.
undue prominence by stating particular facts to constitute, 105.
wilful and reckless, must be pleaded, 117.
NUMBER OF INSTRUCTIONS,
See FORM AND ARRANGEMENT; INSTRUCTIONS.
NONSUIT,
See PRACTICAL SUGGESTIONS.
0
OBJECTIONS,
See EXCEPTIONS AND OBJECTIONS.
OBJECT OF INSTRUCTIONS,
informing jury of applicable law, 2, 4, 117.
ORAL INSTRUCTIONS,
See FORM AND ARRANGEMENT; INSTRUCTIONS.
erroneous, not cured by correct written charge, 138.
method of taking advantage of misleading charge, 91.
not good practice to give, 154 n42.
right to give, 91.
summing up evidence by the court, 18.
P
PALM PRINTS OF ACCUSED,
whether voluntarily permitted, question for jury, 14.
PAPERS,
See DOCUMENTS.
PARTIES,
failure of, to testify, 70.
failure to call material witness, 70.
right to have court instruct jury, 4.
INDEX 541
References are to Sections
PARTNERSHIP,
See ARGUMENTATIVE INSTRUCTIONS.
PEREMPTORY INSTRUCTIONS,
See INSTRUCTIONS; DIRECTION OF VERDICT; PRACTICAL SUGGESTIONS.
PERMANENT INJURY,
submitting where neither pleading nor proof, 115 n6.
PERTINENCY OF INSTRUCTIONS,
abstract instructions, 121, 122.
assumption of facts where evidence opposite, 119 n97.
authorizing medical expenses where no evidence, 119 n93.
averments of indictment, 118.
circumstantial evidence where accused admits crime, 120 n29.
contributory negligence not pleaded or proved, 115.
criminal cases, issues that do not arise, 116.
criminal trials, 50, 116.
defenses not pleaded or proved, 115.
evidence excluded or withdrawn, 119.
exemplary damage, charge on, where no evidence, malice, 119.
flight, without mentioning accused's explanation, 120 n!9.
ignoring issues, 123-125.
immaterial matters not to be submitted, 115.
insanity where evidence shows merely weak mind, 120 n!6.
instruction on one crime not to be given in trial for another, 118, 120.
intoxication, when no evidence to warrant charge, 120 n6.
medical expenses neither pleaded nor proved, 115 n6.
necessity, 115.
negligence shown, charge on accident improper, 119 n80.
no plea of insanity, instruction not to be given, 118.
permanent injury, submitting where no pleading or proof, 115 n6.
pertinency to averments of indictment, 118.
pertinency to evidence, 115, 119.
pertinency to issues and evidence, 50.
pertinency to pleadings, 115, 117.
setting out evidence to support verdict, 126.
PLEADINGS,
assumption of risk, 123.
conclusions, instruction on, not to be given, 117.
contingent fee, not pleaded, 117 n20.
contributory negligence, 123.
contributory negligence, when charge proper though not pleaded,
117 n28.
copying into instructions condemned, 98.
elements of proximate cause, 123.
function of court to construe, 13.
humanitarian doctrine, 123.
insanity, to justify defense, 118.
instructions not to be broader than issues, 117.
instructions referring jury to pleadings for issues, 12.
issues not to be broadened in instructions, 117.
instructions to be pertinent, 50.
last clear chance not pleaded, charge given, 117 n33.
leaving to jury determination of material allegations, 10.
legal conclusions, instruction not to be given, 117.
matters required to be specially pleaded, 117, 119.
accident, in negligence case, 117.
aggravation of damages, 117.
542 INDEX
References are to Sections
PLEADINGS — Continued.
matters required to be specially pleaded,
assumption of risk, 117.
comparative negligence, 117.
contributory negligence, 117
damages, items that constitute, 117.
duress, 117.
estoppel, 117, 119.
foreign law, 117.
fraudulent representations, 117.
immunity of charitable institution from suit, 117.
implied contract, where action on express, 117.
implied warranty, where action on express, 117.
imputed negligence, 117.
last clear chance doctrine, 117.
qualified privilege in libel action, 117.
quantum meruit, 117.
res ipsa loquitur doctrine, 117.
safety of machinery, 117.
statute of frauds, 117.
wilful and reckless negligence, 117.
negligence, charge confined to allegations, 117.
negligence of fellow servant, 123.
negligence, wilful and reckless, 117.
pertinency of instructions to pleadings, 117.
reference to pleadings for issues, 98.
safe working conditions, 123.
POLICE OFFICERS,
See WITNESSES.
POST-OFFICE INSPECTORS,
See WITNESSES.
PRACTICAL SUGGESTIONS,
See EXCEPTIONS AND OBJECTIONS.
abstract definition not permitted, 180.
advocate best prepared to formulate instructions, particular case, 180.
advocate's carelessness, results on appeal, 180.
avoiding invasion of jury's province, illustration, 180.
bill of exceptions, 170, 185.
object, 185.
right to, 185.
time to take, 185.
when necessary, 185.
counsel assumes function of court in writing instructions, 180.
court burdened by large number of requests, 180.
demurrer to evidence, 184.
advisability, 184.
absolute want of evidence, 184.
confesses truth of evidence, 184.
danger in proceeding, 184.
general rules, 184.
means withdrawing case from jury, 184.
not by party having burden of proof, 184.
directing verdict, general rules, 184.
discretion of court whether to instruct, 180.
English practice, judge's charge on law and facts, 180.
evidence, comment on, by judge, 180.
INDEX 543
References are to Sections
PRACTICAL SUGGESTIONS— Continued,
exceptions, 185.
basis of appeal, 185.
frequently made, are dangerous to party's cause, 185.
little show should be made in taking, 185.
manner of taking, 185.
reducing to writing, 185.
to be taken at time ruling made, 185.
exception to instruction, or denial of request, must be taken at the
time, 180.
excerpts from opinions not to be copied, 180.
facts, counsel must be thoroughly conversant with, 180.
hastily drawn instructions likely inaccurate, 180.
hypothetical instruction, when party entitled, 180.
influence of instructions on jury, 180.
instructions, 180.
abstract rule not to be stated, 180.
all will be construed together, 180.
altering or modifying, 180.
ambiguous, should be refused, 180.
best time to prepare, 180.
clearness of definition, 180.
clear statement, good effect on jury, 180.
comparing with approved forms, 180.
definition difficult part, 180.
exception to, must be specific, 180.
facts not to be assumed, 180.
hastily drawn, likely inaccurate, 180.
invading jury's province, 180.
judicial opinions not to be copied, 180.
must be pertinent, 180.
not easy to prepare, 180.
not to be prepared during excitement of trial, 180.
partisan zeal in preparing, bad effect, 180.
perspicuity of arrangement, 180.
preparation, knowledge of law and facts required, 180.
principles to be taken from decided cases, but not words, 180.
refused where others given cover subject, 180.
specific, must be requested, 180.
strong statements, influence on jury, 180.
tentative draft, 180.
undue prominence to some evidence, 180.
weight of evidence, court not to express opinion, 180.
what included, 180.
judge altering requests, 180.
judge, comment of, on evidence, 180.
judges not offended by advocate offering instructions, 180.
jury, 180. •
avoiding invasion of province, illustration, 180.
influence on, of instructions, 180.
instructions invading province, 180.
judges of facts, whether are actually, 180.
special interrogatories to, 181.
limiting number of requests, 180.
modification of written instruction in writing, 180.
nonsuit, 184.
advantage of, over verdict, 184.
general rules, 184, -
- meaning^ 184.
when should be taken, 184
544 INDEX
References are to Sections
PEACTICAL SUGGESTIONS— Continued,
peremptory instruction, 184.
danger in requesting, 184.
failure of evidence for either plaintiff or defendant, 184.
general rules, 184.
recalling jury for further instructions, 180.
request for written charge, 180.
requests, limiting number. 180.
rules in general, governing instructions, 180.
special interrogatories, 181.
advantages to be gained, 181.
advisability of submitting, 181.
control by, of general verdict, 181.
control of general verdict, 180.
designed to entrap jurors, 181.
discretion of court to submit, when, 181.
expediency in submitting, 181.
general instructions to accompany, 181.
moving for judgment on, notwithstanding general verdict, 181.
objections to be made when submitted, 181.
policy of respective counsel, 181.
preparing and submitting, 181.
prudent to ask, when, 181.
purpose, 181.
usual effect of, on jury, 181.
whether submission a matter of right, 181.
special verdict, 182.
circumstances under which advisable to take, 182.
defective, returned, duty of court, 182.
hazardous to take, when, 182.
judge unfavorable, taking, 182.
jury not to be entrusted with preparing, 182.
must state facts, 182.
preparing skeleton of, before trial, 182.
purpose accomplished, 182.
when advisable to take, 182.
specific instructions must be requested, 180.
verdict, 183.
amendment, 183.
counsel's duty to be present when returned, 183.
definite, making more, 183.
form and sufficiency, 183.
informalities, correction, 183.
poll of jury, 183.
quotient, 183.
receiving on Sunday, 183.
to be returned in open court, 183.
written instructions, advocate should prepare and submit, 180.
written instructions, when required, 180.
PREJUDICE,
appeals to, in instructions, 110.
effect on credibility of witness, 40.
PREJUDICIAL ERROR,
See ERRONEOUS INSTRUCTIONS.
advising to place keener test on testimony of accused, 41 n56.
arguments of counsel, charge concerning, 74.
assuming daughter was father's agent in driving car, 23 n40.
assumption certain witness is accomplice, 26 n6.
INDEX 545
References are to Sections
PREJUDICIAL EREOR— Continued,
assumption of facts, 23, 25.
assumption of facts in criminal trials, 26.
assumption of facts where evidence opposite, 119 n97.
cautionary instruction as to impeaching evidence, 38.
cautionary instructions, when erroneous, 42.
cautioning as to interest or bias of witness, 37 n98.
charge jury must consider that accused an interested witness, 41 n56.
charges in negligence cases, 138.
charge to convict both defendants if either guilty, 139.
charging decision of case depends on truthfulness of accused, 41 n56.
charging jury not bound by expert testimony, 10 nl.
charging on matter not within pleadings or evidence, 50.
charging that character witnesses are interested, 41.
charging witness does not realize sanctity of oath, 41 n58.
circumstantial evidence, charge on weight, 36.
coercion of jury to agree, 45 nn39-47.
confession, expressing belief in truth, 67.
contradictory instructions, 104.
contradictory testimony affecting credibility, 41 n54.
corroborating evidence, charges as to weight, 38.
crimes not included in indictment, charge on, 118.
determination of weight of evidence by court, 27.
directing attention to evidence of one side only, 106.
disparagement of insanity as a defense, 58.
disparaging accused as a witness, 41 n56.
disparaging remarks as to merits of case, 22.
disparaging testimony of witnesses, 37.
entreating some jurors to change their minds, 42.
expression of court's opinion as to evidence, 29.
expression of opinion of court as to evidence, criminal trials, 32.
failure of accused to testify, comment by court, 71.
failing to charge that jury judges of credibility, 41.
failure to give cautionary instruction, 42 n84.
giving argumentative instruction, 42.
ignoring issues in instructions, 123.
ignoring material evidence, 124.
improper comments on evidence, 29.
judge having private communications with jury, 46.
jury's determining whether speed ordinance reasonable, 10 nl.
limiting contributory negligence to defendant's evidence, 124.
long and argumentative instructions, 108 n25.
misleading instructions, 103.
must act on corroborated testimony of impeached witness, 41 n64.
not cured by other correct instructions, 138, 139.
omitting reasonable doubt in criminal charge, 59.
particular features of evidence, singling out for comment, 106.
permitting jury to say whether facts constitute a contract, 10 nl.
placing burden of proof on accused, 62.
presumption of guilt from flight, charging, 62.
presumption witnesses tell the truth, 69 n58.
private communications of judge with jury, 46.
proof beyond reasonable doubt in negligence case, 61 n48.
referring jury to pleading for issues, 12 n52.
singling out 2 witnesses from 30 for adverse comment, 107 n4.
statement as to preponderance of evidence, 30, 31.
stating expert testimony of little value, 35.
stating prosecution aided by Ku Klux Klan, 42 n85.
stating witness had strong motive for testifying, 41 n66.
stressing testimony of particular witness, 106.
546 INDEX
References are to Sections
PREJUDICIAL ERROR— Continued.
submitting to jury whether arrest lawful, 10 nl.
submitting to jury whether contract enforceable, 10 nl.
telling jury certain facts constituted contributory negligence, 29.
telling jury to disregard testimony of accused, 37 n7.
telling jury what witnesses to believe, 38 n23.
PREPONDERANCE OP EVIDENCE,
See COMMENTS AND EXPRESSIONS OF OPINION; EVIDENCE; INSTRUCTIONS;
PREJUDICIAL ERROR.
charging how to determine, as comment on weight, 30 n28.
comments and expressions of court's opinion, 30.
criminal cases, 62.
criminal trials, rules governing, 62.
definition, necessity, 54, 61.
greater number of witnesses not required, 61.
how determined, 61.
meaning, 30 n29.
necessity of request for instruction defining, 150, 151.
rules in civil cases, 61.
PRESUMPTION OF INNOCENCE,
not to be disparaged by court, 62.
charge concerning necessary in all criminal cases, 62.
right of accused to instructions, 62.
shifting burden of proof to accused, 62.
PRINCIPALS,
See CRIMINAL LAW.
PRIOR CONVICTION,
See WITNESSES.
PHOHIBITION AGENTS,
See WITNESSES.
PROSTITUTES,
See WITNESSES.
PROVINCE OF COURT AND JURY,
See JURY; TRIAL COURTS.
argumentative instructions, 108.
assumption of facts, 23-26.
cautionary instructions, 42.
comments and expressions of opinion, 30-33.
construction of charge as a whole to determine question, 137.
credibility of witnesses, 41.
discretion of verdict in civil cases, 15.
disparaging comments on merits of case, 22.
direction of verdict in criminal cases, 17.
duty of court to outline issues and state theories and contentions, 11.
function of court to determine applicable legal principles, 12.
function of court to determine competency and materiality of evi-
dence, 14.
function of court to interpret papers and documents, 13.
hypothetical statement of facts, 21.
inferences of fact for jury, 20.
jury as judges of both law and facts, 10.
jury as judges of law, when, 10.
questions of fact and weight and sufficiency of evidence in criminal
trials, 22.
relative functions of court and jury, 10*
INDEX 547
References are to Sections
PROVINCE OF COURT AND JURY— Continued,
summing up evidence by court, 19.
weight of admissions of parties, 34.
weight of circumstantial and negative evidence, 36.
weight of contradictory evidence for jury, 27.
weight of expert testimony, 35.
PROXIMATE CAUSE,
charge without request, 150 n3.
failure to define, 150 n!2.
request to charge on, necessity for, 150.
PUNITIVE DAMAGES,
See EXEMPLARY DAMAGES.
PURPOSE OF INSTRUCTIONS,
exposition of legal principles applicable to case, 1.
Q
QUESTIONS OF FACT,
situation on border line between law and facts, 10.
sole province of jury to determine, 10.
whether confession induced by promise, 14 n92.
QUESTIONS OF LAW,
admissibility of evidence of insanity, 28 n65.
court determines, 3, 10, 12.
directing verdict for want of evidence, 10.
not to be submitted to jury, 12.
prima facie evidence of guilt is question of law, 12.
probable cause for search, 14.
situations on border line between law and fact, 10.
sufficiency of description in chattel mortgage, 13 n63.
what constitutes breach of contract, 13 n60.
whether confession voluntary, 14.
whether evidence showed violation of statute, 12 n46.
whether instrument complies with statute, 13 n57.
QUOTIENT VERDICTS,
See VERDICTS.
R
RACIAL PREJUDICES,
See ARGUMENTATIVE INSTRUCTIONS.
RAPE,
capacity to consent, request to charge, 151.
credibility of victim, request to charge, 151.
outcry, failure to make, request to charge, 151.
READING CHARGE TO JURY,
See FORM AND ARRANGEMENT; INSTRUCTIONS.
REASONABLE DOUBT,
See CRIMINAL LAW; INSTRUCTIONS; SUBJECT MATTER OF INSTRUCTIONS.
alibi, charge to acquit, 72.
argumentative instruction, 59.
charge where evidence all circumstantial, 64.
548 INDEX
References are to Sections
REASONABLE DOUBT— Continued.
construction of charge as whole to determine question, 137.
defense not to be established beyond, 59.
definition of, must be requested, when, 151 n66.
entertained by all jurors, 59.
essentials of defense, 59.
example of argumentative instruction, 59.
generated by proof of good character, 60.
good character of accused as affecting, 60.
grades of offense, doubt as between, 57.
instructions substantially in statutory language, 59.
moral certainty not required, 59.
necessity of request for instruction on subject, 151.
reasonable supposition not meant, 59 n97.
repetition not necessary, 59, 96.
request to charge on subject, 151.
rests on whole evidence in case, 59.
should arise only from evidence, 59.
subject matter of instruction, 59.
REASON FOR LEGAL RULES,
court may state, how far, 12.
RECOMMENDATION OF MERCY,
authority must be given by statute, 44.
discretion of jury, 44.
how instruction should be given concerning, 44.
jury's right in criminal cases, 44.
should be warranted by the evidence, 44.
REPETITION OF INSTRUCTIONS,
criminal trials, 96.
improper generally, 95.
not regarded as prejudicial, 95,
reasonable doubt charge, 59.
REPUGNANCY,
See ERRONEOUS INSTRUCTION; INTERPRETATION.
REQUESTS,
additional instructions, 152.
additional instructions, criminal cases, 154.
argumentative matter to be stricken, 157.
argumentative, properly refused, 155.
charge to be given in writing, 91.
circumstantial evidence, necessity, 64.
court may modify, 157,
court not required to rewrite erroneous request, 157.
criminal cases, matter covered by other instructions, 160.
defective, duty of court to prepare correct charge, when, 157 nlO.
deficiencies in, supplied by other instructions given, 155.
degrees of homicide to be defined without request, 151 n95.
duty of party to request definition of terms, 152.
duty to make timely request and tender proper instruction, 150.
duty to mark "given" or "refused," 154.
essential questions of law, duty to charge without request, 151.
excessive number tendered, 150.
formal requisites and essentials, 154.
general instructions should be given though not requested, 150.
identification, charge incomplete as given, 153.
INDEX 549
References are to Sections
BEQUESTS— Continued,
inconsistent, 161.
insanity as a defense, 154.
instructions in criminal cases, 151.
issues not all presented in charge given, 152 n!6.
length, refusing because of, 150.
limitation on number, 150.
made before evidence introduced, premature, 150.
marking "given" or "refused," 154 n49.
matters as to which request should be made, 150, 151.
accidental killing, 151.
accomplice testimony, 151.
after argument begun, too late, 150.
aged persons, care required of, 150.
alibi, 151.
alibi only defense, request unnecessary, 151 n84.
burden of proof, 150, 151.
capacity to consent to rape, 151.
circumstantial evidence, 151, 154.
comparative negligence, 150.
concurrent negligence, 150.
confessions, 151.
construction of contracts, 150.
contributory negligence, 150.
credibility of witnesses, 150, 151.
definition of particular terms, 150.
dying declarations, 151.
elements of damages, 150.
estoppel, 150.
evidence of other crimes, 151.
experimental evidence, 150.
expert testimony, 150.
failure to call witness, 150.
flight, defendant's explanation, 151.
fraud, nature and effect, 150.
good character, 151, 154.
humanitarian doctrine, 150.
impeachment of witnesses, 150, 151.
intent, 151.
last clear chance, 150.
lower grade of offense, 151.
lunatics as witnesses, 151.
master, care required, 150.
mortality tables, 150.
negligence, specific acts, 150.
penalty of offense, 151.
preponderance of evidence, 150.
presumption of fact, 150.
principle falsus in uno, 150.
provocation, 151.
proximate cause, 150.
punishment of offense, 151.
rape victim, credibility, 151.
reasonable doubt, 151.
res ipsa loquitur, 150.
self-defense, 151, 154.
special purpose of evidence, 150.
statutory law, 150.
threats, 151, 154.
unavoidable accident, 150.
550 INDEX
References are to Sections
REQUESTS — Continued.
matters as to which request should be made,
waiver, 150.
withdrawal immaterial evidence, 150.
misleading charge given, further instruction to be asked, 153.
modification needed, court not required to give, 156.
modification of requested instruction, 157.
more explicit instructions, 152.
must be in writing, 154.
necessity of clear expression of requested charge, 156.
other instructions covering, 159, 160.
prayers of great length not approved, 150.
refusal for errors in requests, 158.
refusal not justified because of misspelled words, 156.
refusal of inconsistent requests, 161.
refusal of instructions not appropriate to issues, 115.
refusal where matter sufficiently covered by charge given, 159.
rejected where charge asked is partly incorrect, 157, 158.
rejecting, where erroneous, 157.
rejecting where one or more propositions incorrect, 157.
right of court to modify and give, 157.
right of court to modify argumentative request, 157.
right of court to refuse request in part incorrect, 158.
self-defense, charge insufficient as given, 153.
signature statutory requirement, sufficiency, 154 n45.
special findings, given after verdict, 161 n47.
special question, tendered during argument, too late, 161 n53.
special verdict or findings, 162.
statutory requirement as to time, 150.
syllabus reported case, merely referring to, sufficiency, 154.
timeliness, 150, 151.
time when must be made, 150, 155.
venue, instruction required without request, 151.
voluntary manslaughter, request to charge unnecessary, 151 nl.
waiver by court of time for tendering, 150.
waiver of right to object from failure to request instruction, 152.
when may be tendered, 150.
where charge given is incomplete, 154.
where general charge indefinite or inadequate, 152.
written requests waived by judge, 154 n42.
RES IPSA LOQUITUR,
See NEGLIGENCE.
inference of fact, 20.
request for charge, necessity, 150.
REVOCATION,
See WILLS.
S
SABOTAGE,
See DEFINITIONS.
SCINTILLA OF EVIDENCE,
criminal cases, direction of verdict, 17, 18.
rule in federal courts, 15, 18.
states adopting, and those disapproving the rule, 18.
when court not required to instruct, 119.
INDEX 551
References are to Sections
SEARCH WARRANT,
existence of probable cause question for court, 14.
SELF-DEFENSE,
See CRIMINAL LAW.
accused need not convince jury defense necessary, 62.
burden of proof, 62.
necessity for request to instruct, 151.
preponderance of evidence required, 62.
SIGNING AND MARKING,
See FORM AND ARRANGEMENT; INSTRUCTIONS.
SLANDER,
charge on financial condition of parties where no evidence, 119.
easy to charge and hard to defend, argumentative, 108.
ignoring plea of mitigation, 123.
SPECIAL INTERROGATORIES,
See PRACTICAL SUGGESTIONS.
SPECIAL VERDICT OR FINDINGS,
See PRACTICAL SUGGESTIONS.
abstract propositions not to be submitted, 111.
copying pleadings into questions, 112.
form and submission, 111.
general instructions not to be given, 112.
jury's duty, 111.
meaning, 111.
not accompanied by general verdict, 111.
objects and purposes, 111.
requests for, necessity, 162.
subject matter of instructions, 80, 111, 112.
Wisconsin practice, 112.
STATUTES,
duty of court to explain terms, 101.
function of court to construe, 13.
permitting conviction of lesser offense, charge concerning, 57.
reading to the jury, 101.
state, forbidding comment on evidence by federal judge, 33.
state motor vehicle act, whether passenger a guest not jury ques-
tion, 12.
SUBJECT MATTER OF INSTRUCTIONS,
See INSTRUCTIONS.
alibi in criminal trials, 72.
argument of counsel, 74.
burden of proof in civil cases, 61.
burden of proof in criminal trials, 62.
circumstantial evidence, 63.
circumstantial evidence in criminal cases, 64.
confessions in criminal cases, 67.
credibility of witnesses, 68.
credibility of witnesses in criminal cases, 69.
definition of terms, 54.
definition of terms, in criminal trials, 55.
duty to instruct on every point pertinent to issues, 50.
failure of accused to testify, 71.
failure of party to call material witness, 70.
552 INDEX
References are to Sections
SUBJECT MATTER OF INSTRUCTIONS— Continued,
failure of party to testify, 70.
flight of the accused, 66.
form of verdict, 76.
good character of accused, 60.
insanity of accused, 58.
instruction to disregard evidence erroneously admitted, 73.
limitation of purpose of evidence, 56.
lower grade of offense, 57.
manner of arriving at verdict, 75.
pertinency as to evidence and issues, 50.
positive and negative testimony, 65.
preponderance of evidence in civil cases, 61.
preponderance of evidence in criminal trials, 62.
presumption of innocence, 62.
presumptions from flight, 66.
reasonable doubt, 59.
recapitulation of testimony, 51.
theories of case, 52.
theory of case in criminal trials, 53.
SUICIDE,
See EVIDENCE,
SYMPATHY,
See CAUTIONARY INSTRUCTIONS; INSTRUCTIONS.
T
TESTIMONY,
See EVIDENCE; WITNESSES.
THEORIES OF CASE,
court to instruct for both sides, 11, 52.
criminal trials, all theories of case to be covered, 53.
function of court to state, 11.
instructions based on evidence, 120.
necessity of request for instruction on subject, 150.
parties are entitled to submission for both, 4, 11.
subject matter of instructions, 52, 53.
submitting both affirmative and negative, 52.
THIRD DEGREE,
See CONFESSIONS.
THREATS,
error to instruct on, in absence of evidence, 120,
instruction as to, when to be requested, 154.
request necessary, 151, 154.
sufficiency of foundation to admit testimony, 14.
TIME,
See EXCEPTIONS AND OBJECTIONS; REQUESTS; TIME FOR REQUESTS.
code or rules as to exceptions, 171.
exceptions, before jury retires, 171.
exceptions, practice in various states, 171.
exceptions, statutes mandatory, 171.
exceptions too late after verdict, 171.
exceptions, when to be taken, 171.
requests to charge, when to be presented, 150, 155.
INDEX 553
References are to Sections
TIME FOR REQUESTS,
after argument begun, 150.
before case submitted, 150.
before evidence introduced, 150.
discretion of court to waive, 150, 150 n46.
rule of court, 150, 150 n46.
statutory requirements to be heeded, 150.
waiver by court, 150.
TRIAL COURTS,
See PROVINCE OF COURT AND JURY.
accused's failure to testify, comment by court, 71.
cautioning1 individual jurors, 43.
circumstantial evidence, duty to instruct, 64.
coercing jury to agree improper, 45.
comments on evidence court may make, 29.
criminal trials, improper comment by court on evidence, 32.
determines competency and materiality of evidence, 14.
directing attention to evidence of one side only, 106.
directing verdict for want of evidence, 10.
discretion as to extent of summarizing evidence, 19.
discretion in giving instructions, 5.
disparaging by, of merits of case improper, 22.
disparaging insanity as defense, 58.
documents and papers, duty to interpret, 13.
duty to declare applicable principles of law, 12.
duty to inform jury as to relevancy of evidence to the charge, 4 n43.
duty to instruct, 3, 4.
error to determine weight of evidence, 27, 32.
error to disparage testimony of witnesses, 37.
expert witnesses, disparagement by court, 35.
foreign statutes, when court interprets, 13.
functions in trial of cases, 10.
giving cautionary instruction, 42.
hypothetical statements of fact, requisites, 21.
instances of improper comment on preponderance of evidence, 30, 31.
instructions of, bind jury, right or wrong, 3.
jury must follow charge, 3.
may not direct jury what inferences arise from evidence, 20.
opinion, as to evidence in criminal trials, 32.
prejudicial to express opinion as to evidence, 29, 32.
preponderance of evidence, expressions of opinion, 30.
private communications with jury improper, 46.
probable cause for search, question for court, 14.
qualification of witnesses a question for the court, 14,
recapitulation of testimony, discretion, 51.
requests, waiver of time for filing, 150, 150 n46.
various instruments which trial court must construe, 13.
waiver by, of time for tendering requests, 150, 150 n46.
when pass on questions of venue, 14.
written requests, waiver of requirement, 154 n42.
U
UNAVOIDABLE ACCIDENT,
See ACCIDENT; IGNORING ISSUES.
UNDERSCORING WORDS AND PHRASES,
undue prominence resulting, 107.
554 INDEX
References are to Sections
UNDUE PROMINENCE,
consideration of charge as a whole to determine question, 37.
illustrations, 105.
impropriety, 105-107.
negligence, stressing particular facts, 105.
underscoring words and phrases, 107.
VARIANCE,
proof different from pleading, peremptory instruction, 15.
VENUE,
assumption of proof of fact, 26.
duty to instruct on subject without request, 151.
establishment as question for jury, 28.
ignoring evidence in charge, 125 n39.
whether question for court or jury, 14.
VERDICTS,
See DIRECTION OF VERDICT; PRACTICAL SUGGESTIONS.
acquittal, directing in criminal trials, 17.
acquittal on ground of insanity, 76.
charge as to collusiveness of coroner's verdict, 27.
coercing jury to reach, 45.
compromise, 75.
compromise or by lot not approved, 75.
construction, meaning understandable, 76 n95.
contrary to law if returned in violation of instructions, 3 n31.
court may not coerce, 75.
court's refusal to accept, returned contrary to instructions, 3 n31.
directing, 15, 17.
directing, for want of evidence raises question of law, 10.
directing, if jury finds specified facts, 126.
duty of jury to determine age of accused, when, 76.
exceptions taken after, too late, 171.
form not part of charge, 1.
form of, as subject of instruction, 76.
instructions as to manner of reaching, 75.
manner of arriving at, charge, 75.
necessity of request for instruction on form, 151.
punishment not to be considered in arriving at, 76 n3.
qualifying "without capital punishment," 4"4 n32.
quotient, caution against returning, 75.
reached by lot, 75.
reached in disregard of court's instructions, 3.
setting aside where court's instructions violated, 3.
setting out evidence to support, 126.
special, or special findings, 80, 111, 112.
submission of blank forms, 76.
where jury fixes punishment on conviction, 76.
W
WAIVER, "" ' ' . - " • - -
court's discretion as to <£ime 'to tender requests^ 150.
failing to except as waiver of error, 175.
failure to request as waiver of light to instructions, 150.
loss of right to object to instruction given by failure- to request, 152.
INDEX 555
References are to Sections
WAIVER— Continued.
objections and exceptions, 175.
reading of instructions, 93.
request to charge, necessity for, 150.
written charge, by failure to object to oral, 171.
written instructions, 91.
written requests, waiver by judge, 154 n42.
WEIGHT OF EVIDENCE,
See COMMENTS AND EXPRESSIONS OP OPINION; EVIDENCE.
admissions of parties, 34.
expert testimony, 35.
instructions upon, 27.
question in criminal trials, 18, 32.
WILLS,
assumption of facts as to mental condition of testator, 23.
error in charge as to sound mind, 138.
monomania, requested charge as to, 158 nil.
question as to existence one of fact, 13.
revocation, dissertation on, argumentative, 108.
sound mind, erroneous definition, effect, 138.
undue influence, charge not to be given where no evidence, 119.
undue influence, charge that need not be proved directly, 36 n65.
WITHDRAWAL OF ERRONEOUS INSTRUCTION,
made before jury retires, 141.
only cure of error, 141.
WITNESSES,
See CREDIBILITY OF WITNESSES.
accomplice, definition, 72 n37.
accomplices, credibility, 41, 69.
accused, credibility, 41.
alien, charging testimony "admirably lucid," 107 n4.
appearance and demeanor, 68.
arbitrarily believing or disbelieving, 69 n74.
attorneys as, should retire from case, 68.
bias, freedom from, as test of credibility, 40 n46.
bloodhounds, credibility of conduct, 41.
children, credibility, 41. f
coconspirators, credibility, 69.
contradictory testimony at former trial, 68.
convicts and ex-convicts, credibility, 69.
corroborating of accomplice, 69 n89.
credibility as subject of instruction, 68, 69.
credibility exclusively for jury, 37, 38.
credibility of, impeached, 41, 69.
credibility, request to charge, 150.
credibility where evidence contradictory, 68.
criminal cases, credibility, 41.
demeanor, as test of credibility, 39 n33.
demeanor, jury to consider, 39.
detectives buying liquor to entrap accused, 68 n47.
detectives, credibility, 69.
discrediting by court on account of interest, 40.
disinterestedness as test of credibility, 39 n33, 40 n46.
disparagement by court, 35, 37.
eyewitness to homicide, credibility, 41.
556 INDEX
References are to Sections
WITNESSES— Continued.
expert, disparagement by court, 35.
experts, credibility, 69.
failure of accused to testify, 71.
failure of party to call material witness, 70, 71.
failure of party to testify, 70.
failure to call, request for charge, 150.
f alsus in uno, rule, 68, 69, 72.
favorable comment on character, 39.
impeached, credibility, 41.
instances of proper and improper comment by court, 37.
interest as affecting- credibility, 40, 41.
interested witnesses, credibility for jury, 40, 68.
interest of, as test of credibility, 40 n46.
jury's right to consider interest of witness, 40, 41, 68.
necessity of request to charge as to idiots and lunatics, 151.
necessity of request to charge on accused as a witness, 151.
police officers, credibility, 41.
post-office inspectors, cautionary instruction improper, 69 n85.
presumption that witnesses tell truth, error to charge, 69 n63.
prior conviction, credibility, 69 n72.
prohibition agents, cautionary instruction, 69 n70.
prostitutes, credibility, 41.
qualification of expert, question for court, 14, 35.
reasonableness of statements, 68.
refusal of series of requests, 174.
singling out by court for comment on testimony, 41.
singling out 2 from 30 for adverse comment, 107 n4.
stressing testimony of particular witness, 106,
sufficiency of impeaching evidence, 14.
telling jury testimony of disinterested witness is true, 40.
testifying falsely, 68.
waiver, abandoning right, 175.
WORDS AND PHRASES,
See DEFINITIONS.
X
X-RAY,
See EVIDENCE.
1982
CUMULATIVE SUPPLEMENT
REID'S BRANSON
INSTRUCTIONS
TO JURIES
IN CIVIL AND CRIMINAL
CASES
CONTAINING SELECTED INSTRUCTIONS AND
CITATIONS FROM VARIOUS JURISDICTIONS
By
JAMES K. WEEKS
Professor of Law
Syracuse University College of Law
Third Edition
Volume 1
THE MICHIE COMPANY
Law Publishers
CHARLOTTESVILUS, VIRGINIA
Place this supplement in the pocket of the corresponding volume
of the set and discard previous supplement !
COPYRIGHT 1982
BY
THE MICHIE COMPANY
PREFACE
This preface is intended to alert readers of these volumes to some of the new
features in the 1982 Cumulative Supplement.
Instead of providing verbatim examples of jury charges, this edition of Reid's
Branson Cumulative Supplement takes an unique and useful approach.
Reasons for correct jury instructions are enumerated and examples of incorrect
charges and their defects are provided for comparison. Where appropriate, the
applicable law of the jurisdiction is briefly stated.
I am most grateful to my Research Assistant, R. Scott McGrew, who devoted
countless hours to the preparation of this edition, and whose ideas contributed
much to the expanded scope of these volumes.
There are many new section headings and cross-indexing references that
should further increase the usefulness of these volumes. In addition, citations
to State Reporters are given when available.
James K. Weeks
Syracuse, New York
April 1982
111
THE LAW OF TO
JURIES
RULES GOVERNING THE GIVING OR REFUSAL OF
INSTRUCTIONS
CHAPTER 1
NATURE AND PURPOSE OF INSTRUCTIONS
Section Section
1. Definition. 5. Discretion of trial court in giving instruc-
2. Office of charge. tions.
3. Law of the case.
4. Necessity of instructions — Duty of court to
charge the jury.
§ 1. Definition.
Telling the jury that the court and taxpayers expect a verdict is not an
instruction on the law of the case.13'1
1!U Alabama. Orr v. State, 40 AlaApp 45,
111 S2d 627 (1958), affd, 111 S2d 639.
§ 2, Office of charge.
The court's duty in framing its charge is to explain the law applicable to the
case as a whole and applicable to all the contingent fact conclusions before the
jury, The appropriate exercise of this function requires only that the trial judge
determine that a requested instruction, is, in a broad sense, relevant to any
issue properly before the jury. It is for the jury in fact finding to assess the
applicability of a charge to the merits of the case. That specific charges may
rest upon mutually exclusive or incompatible fact determination is irrelevant,
so long as the incompatibility is adequately explained to the jury.14"1
The rationale for the insistence upon a properly instructed jury seems
obvious, for the charge of the trial court, stating some of the elements of the
offense involved without reference to others, would have a natural tendency to
cause a jury to believe that those elements stated were exclusive.14'2
The purpose of instructions is to advise the jurors of the particular questions
they are to decide, and to inform them as to the law and how to apply it to the
facts as they find the facts from the evidence.30'1
The purpose of a charge is to inform the jury as to the law as applied to the
facts in the case.30'2
144 Louisiana. Reeder v. Allstate Ins. Co. 8(u Indiana. Kaplan v. Tilles, Inc., 131
(LaApp), 235 S2d 111 (1970), IndApp 390, 171 NE2d 268 (1961).
l4-2 Michigan. People v. Price, 21 MichApp 30'2 Georgia. Thacker v. State, 226 Ga. 170,
694, 176 NW2d 426 (1970). 173 SE2d 186 (1970).
1
§ 3 INSTRUCTIONS— RULES GOVERNING 2
§ 3. Law of the case.
The jury cannot depart from the theory of law charged by the judge, even
though the theory is erroneous,42 1
42-* Alabama. Southern Ry. Co. v. Terry, 268
Ala 510, 109 S2d 919 (1959),
§ 4. Necessity of instructions — Duty of court to charge the jury.
There is no duty on a trial judge to charge upon law which has no
applicability to presented facts.43'1
The judge did not commit reversible error by instructing the jury immedi-
ately before it withdrew to deliberate. It is the general practice in this
Commonwealth to instruct the jury at the conclusion of all the evidence and
before argument. However, incidents may arise that render it necessary and
proper in the interest of justice to give instructions during argument or after
the jury has retired for the purpose of considering their verdict.43'2
The test of a charge is whether it is correct in law, adapted to the issues and
evidence in the case, and sufficient to guide the jury in applying the law
correctly to the facts. Although the degree to which reference to the evidence
may be called for resides within the sound discretion of the court, the court
nonetheless must make sure that the charge adequately instructs the jury on
the elements of the offense charged.44 *
An instruction is proper which conveys to the jurors the correct principles of
law applicable to the evidence submitted to them. A party to a lawsuit is
entitled to instructions on its theory of the case when that theory is supported
by the pleadings and evidence but, where no prejudice is shown, the refusal to
give an instruction is not reversible error.48 l
In the case at bar, all the instructions sent to the jury room had been read
first in open court. The same jury that convicted defendant on the underlying
felony heard evidence on the habitual offender charge. The only problem
presented here is that several of the instructions had been read the day before
when the jury convicted the defendant on the underlying felony. Those instruc-
tions were not reread before being given to the jury when it began deliberations
on the habitual offender charge. This Court has held that the habitual offender
procedure does not constitute a separate crime or trial; rather, it provides for
the imposition of a greater sentence for the crime charged, . . . Therefore,
finding that all of the instructions had been read once in open court to the same
jury, and since the habitual offender phase of the trial does not constitute a
separate trial, we do not find any error in resubmitting instructions without
re-reading them.48 2
Under the Ohio Revised Code [§ 2945. 10(E)]5 the trial court is not required
to give any instructions in a criminal case before argument. But proper
requested instructions must be included in the general charge.56*1
The trial court, without request, must instruct on the general principles of
law governing the case, but it need not instruct on specific points developed at
the trial unless requested.56-2
In a murder trial, the judge should charge upon all degrees of homicide
unless it is perfectly clear to the judge that there is no evidence to support a
particular degree.56-3
3 PROVINCE OF THE COURT AND THE JURY § 5
[F]ailure to instruct jury with regard to defense of good motive required a
new trial, notwithstanding defense counsel's failure to request such an instruc-
tion.56"4
Now there are two plaintiffs in this trial and each is entitled to separate
consideration of his or her own case. I shall not repeat my instructions for each
plaintiff and unless I tell you otherwise, all instructions apply to each plain-
tiff.56-5
So, Members of the Jury, it is for you to determine the guilt or innocence of
each defendant. Each defendant has three cases pending against him. They are
tried jointly merely as a matter of convenience and each is entitled to separate
consideration of your verdict as to each charge against each defendant. . . .56>e
43>1 Pennsylvania. Commonwealth v. 164 NE2d 585 (1959).
Whitten, 216 PaSuper 730, 257 A2d 875 (1969). 56'2 California. People v. Wade, 53 Cal2d
43.2 Virginia. Poole v. Commonwealth, 211 322, 1 CalRptr 683, 348 P2d 116 (1959).
Va 262, 176 SE2d 917 (1970). 56'3 Alabama. Miller v. State, 40 AlaApp
44>1 Connecticut State v. Sumner, 178 Conn 533, 119 S2d 197 (1959), cert, den., 270 Ala 739,
163, 422 A2d 299 (1980). 119 S2d 201.
48J Illinois, Goodrick v, Bassick Co., 58 56'4 Minnesota. State v. Hembd, — Minn — ,
IllApp3d 447, 16 IllDec 384, 374 NE2d 1262 232 NW2d 872 (1975).
(1978). 56'5 MicMgan. Carreras v. Honeggers & Co.,
482 Indiana. Haynes v. State, 431 NE2d 83 68 MichApp 716, 244 NW2d 10 (1976).
(Ind 1982). 58*6 North Carolina. State v, Abernathy, 295
"^ Ohio. State v. Barron, 170 OhSt 267, 164 NC 244, 244 SE2d 373 (1978).
NE2d 409 (1960); State v, Myers, 82 OLA 216,
§ 5. Discretion of trial court in giving instructions.
The trial court may exercise sound discretion as to the form and style in
which instructions shall be given.57 1
The test of a charge is whether it is correct in law, adapted to the issues and
evidence in the case, and sufficient to guide the jury in applying the law
correctly to the facts. Although the degree to which reference to the evidence
may be called for resides within the sound discretion of the court, the court
nonetheless must make sure that the charge adequately instructs the jury on
the elements of the offense charged.57'2
57<1 Colorado. Montgomery Ward & Co. v. 57>2 Connecticut. State v. Sumner, 178 Conn
Kerns, 172 Colo 59, 470 P2d 34 (1970). 163, 422 A2d 299 (1980).
CHAPTER 2
PROVINCE OF THE COURT AND THE JURY
Section Section
10. Relative functions of court and jury, 14, Function of court to determine compe-
11. Function of, court to outline issues and tency ^d materiality of evidence.
state theories and contentions of » 15. Direction of verdict in civil cases,
parties' 16A. Effect of both parties moving for directed
11A, Speculation of juror as to what absent verdict.
witness would testify. « « r*. „.. ' * j- ... i~ ^
-« Y, ,. f . , -, , . T i . 18. Direction of verdict where there is
12. Function of court to determine legal prin- intm f evidence.
ciples applicable to case.
13. Function of court to interpret papers and 19' Summing up evidence by court,
documents. 20. Inferences of fact from the evidence.
§ 10 INSTRUCTIONS-RULES GOVERNING 4
Section Section
22. Disparaging comments on merits of case. 37. Credibility of witnesses for jury.
24. Assumption of facts — Statement of issues 37A. Witnesses — Criteria for credibility.
and claims. 38. Credibility of witnesses — Corroborating
25. Assumption of facts — Established, or contradictory evidence.
uncontroverted or admitted facts. 39. Credibility of witnesses — Demeanor and
27. Weight of contradictory evidence for jury in . character of witnesses.
civil cases. 40. Credibility of witnesses — Interested wit-
28. Questions of fact and weight of evidence in nesses.
criminal cases. 40A. "Directly interested" witness —
29. Comments and expressions of opinion on Pecuniary interest in judgment,
the evidence In general. 41. Credibility of witnesses in criminal cases.
31. Comments and expressions of opinion — 42. Cautionary instructions.
Cases of contract and tort. 42A. Urging hung jury to redeliherate: "The
32. Comments and expressions of opinion — dynamite charge."
Criminal cases. 43. Cautioning individual jurors,
34. Weight of admissions of parties. 45. Coercing jury to reach agreement.
35. Weight of expert testimony. 45A Proper inquiry by court of numerical divi-
35 A. Expert testimony — When not required. sion of jury.
36. Weight of circumstantial and negative 46. Private communications of the judge with
evidence. the jury during their deliberations.
§ 10. Relative functions of court and jury.
Your duty is to find the facts from the evidence and apply to those facts the
law as given to you in these instructions.3 1
We take this opportunity to reiterate the principle that the better procedure
in a case in which it is a close question whether the standard for granting a
directed verdict is met is to allow the matter to go to the jury. If the judge then
decides that the jury's verdict cannot stand, a motion for judgment
notwithstanding the verdict may be allowed This procedure is more effi-
cient than initially allowing a motion for a directed verdict. If the granting of
the motion for judgment notwithstanding the verdict is found to be erroneous
on appeal, the jury's verdict can be reinstated, while the erroneous granting of
the motion for a directed verdict requires a new trial.15'1
The conclusion that Indiana can no longer be considered as a jurisdiction
permitting the jury in criminal cases to determine the law is fortified by the
language in a recent Indiana Supreme Court opinion:
"... the jury is required to accept the law as established."27 1
During the course of the case you may observe or feel that you are observing
some reaction by the Court with respect to testimony or with respect to some
statement made. You should put this entirely out of your mind. The Court has
no opinion in this case as to what the facts are. That is your job. That is what
you decide, and anything, any statement or any conduct or any inflection or
any change in countenance or anything of that nature which you may have
observed, or thought you observed during the course of the trial, you should put.
entirely out of your mind because it has nothing to do with your job in finding
the facts in the case. In other words, you are finding the facts based on the
testimony, the witnesses that you believe, the exhibits and so on, and not upon
any statement or reaction or inflection on the part of the Court.
What I have said here about the realm of fact here, the Court cannot assist
you because you are supreme in that realm.27"2
Absent a showing to the contrary, juries will be assumed to have followed the
instructions of the trial justice.27'3
5 PROVINCE OF THE COURT AND THE JURY § 11
^North Carolina. State v. Haith, 7 NCApp 27-2 Michigan. Phillips v. Grand Trunk
552, 172 SE2d 912 (1970). Western R. Co., 375 Mich 244, 134 NW2d 201
)5-1 Massachusetts. Smith v. Ariens Co., 78 (1965).
Mass 1857, 377 NE2d 954 (1978). 27'3 Rhode Island. Storin v. Masterson, 103
27J Indiana. Weils v. State, 239 Ind 415, 158 RI 246, 236 A2d 249 (1967).
NE2d 256 (1959).
§ 11. Function of court to outline issues and state theories and con-
tentions of parties.
The defendant L. says and contends by his plea of not guilty that the wit-
nesses for the State, their testimony deserves no weight or credit, should not
be believed, that the State has failed to carry the burden cast upon it and failed
to prove his guilt beyond a reasonable doubt of any charge; that you should give
him the benefit of that doubt and find him not guilty.29 1
When such an instruction [diminished capacity! is requested by the defen-
dant, the trial judge's task is quite different from that required for sua sponte
instructions. By the defendant requesting tne instruction, the court knows that
the defendant is relying on that defense. Its inquiry then focuses on the
sufficiency of such evidence. "It is well settled that if the defendant requests
an instruction it must be given if there is any evidence on that issue deserving
of any consideration whatsoever. . . ." Even where there is conflicting evidence
on this issue, nevertheless the law requires that "[However incredible the
testimony of a defendant may be he is entitled to an instruction based upon the
hypothesis that it is entirely true"'30*1
The following instruction is erroneous because it took from jury consideration
one of the specifications of plaintiff:
You should first determine these disputed issues:
1. Did the defendant fail to exercise ordinary care when it did not notify its
employees that the deceased and other workmen of the T. Construction Co.
would be working near a crane track in the raw materials building and did not
have its crane men in the raw materials building maintain a lookout for the
deceased and his fellow workers?
2. Did the defendant fail to exercise ordinary care when it did not notify its
employees that the deceased and other workmen of the T. Construction Co.
would be working near a crane track in the raw materials building and did not
require its crane men in the raw materials building to sound a warning horn
or bell or to otherwise notify the deceased and his fellow workers of the
approach of a crane?
If you determine that the plaintiff failed to prove by a preponderance of the
evidence that the defendant did not use ordinary care in either of the foregoing
particulars your verdict must be for the defendant and you can terminate your
deliberations.32'1
Where there is a conflict in the evidence and inconsistent theories on the
cause of the event are advanced, we believe instructions encompassing both
theories should be given.34'1
. . . [T]he primary purpose of ... instructions is to define with substantial
particularity the factual issues, and clearly to instruct the jurors as to the
principles of law which they are to apply in deciding the factual issues involved
in the case before them.38-1
§ 11 A INSTRUCTIONS—RULES GOVERNING 6
Thus, a defendant may be charged with committing a single crime in two or
more ways and proof of one will uphold the indictment or information. But
before the jury can be instructed on and allowed to consider the various ways
of committing the crime alleged, there must be sufficient evidence to support
the instructions. Moreover the instructions must clearly distinguish the alter-
native theories and require the necessity for a unanimous verdict on either of
the alternatives. When such is the case, the prosecutor need not be forced to
elect, for fear that half of the jury will find the defendant guilty on one theory
and half on another theory.39'1
In prosecution of defendant for assault and battery upon a police officer, the
testimony of defendant — that he grabbed officer's nightstick and struck officer
to stop unjustified attack by police officer on defendant — entitled the defen-
dant to a charge of self-defense, but the court committed prejudicial error when
it failed to make it clear to the jurors that the defendant had no burden of proof
on the issue of self-defense and that the defendant was entitled to an acquittal
so long as there was any evidence to create reasonable doubt in their minds.39'2
291 North Carolina. State v. Lee, 277 NC 132 NW2d 510 (1965).
205, 176 SE2d 765 (1970). as-1 Federal United States v. Hill, 417 F2d
301 California. People v. Stevenson, 79 279(1969).
CalAppSd 976, 145 CalRptr 301 (1978), mi Washington. State v. Golladay, 78
8X1 Ohio, Baker v. Ohio Ferro-Alloys Corp,, Wash2d 121, 470 P2d 191 (1970).
23 OhApp2d 25, 261 NE2d 157 (1970). m2 Utah, State v. Torres, 619 P2d 694 (Utah
30 Wisconsin. Aetna Cas. & Sur. Co. v. 1980).
Osborne McMillan Elevator Co., 26 Wis2d 292,
§ 11 A. Speculation of juror as to what absent witness would testify.
During the course of the case there has been something said by counsel with
respect to witnesses who did not appear. As we said at the outset in this case,
you decide the case on the basis of the testimony that you hear in the case
keeping in mind all the other rules that apply. You should not decide the case
on what you think witnesses might have testified to had they been here, or you
should not speculate on why witnesses were not here, but you should decide the
case based on the testimony that you did hear from the witnesses who were
here, and not upon any speculation or surmise.45"1
451 Michigan. Phillips v. Grand Trunk
Western B. Co., 375 Mich 244, 134 NW2d 201
(1965).
§ 12* Function of court to determine legal principles applicable to
case.
The following is erroneous as it leaves the jury to determine what law arises
on the evidence in the case:
To entitle the wife to the relief the indignities offered by the husband must
be such as may be expected seriously to annoy a woman of ordinary sense and
temperament, and must be repeated or continued so that it may appear to have
been done wilfully and intentionally or at least consciously by the husband to
the annoyance of the wife.
7 PROVINCE OF THE COURT AND THE JURY § 12
Mrs. Turner has testified to certain indignities and two of her children have
also. It is up to you to decide the credibility of that testimony and whether or
not she has sustained that burden.46 ]
If the evidence is in conflict as to the existence of a marriage, two procedures
have been used to determine whether a marriage exists. The trial judge may
hear evidence to determine whether a marriage exists, and his decision will not
be disturbed on appeal if there is any evidence to support his finding.
The second procedure is for the trial court to submit to the jury with appro-
priate instructions the question of whether or not a marriage exists. . . . When
conflicting evidence was introduced, the trial judge did not err in allowing the
jury to make the factual determination as to whether a marriage existed
between the appellant and Allen.50"1
"Illinois Pattern Jury Instructions" prepared by the Illinois Supreme Court
on Jury Instructions should be used if applicable, unless the court finds that
the instruction does not state the law accurately.56 'l
In criminal cases, the court must, on its own motion, give instructions on the
pertinent general principles of law.56'2
We consider now the refusal of the first requested instruction. Paragraph
four of Instruction 8 to the jury required a finding that defendant, or those
aided and abetted by him, in stealing the money were armed with a revolver
with intent to kill or maim W. if he resisted the stealing. As stated, the request
was that defendant must have known of his principal's intent to use a danger-
ous weapon and their intent to kill or maim W., if resisted.
Instruction 7 contained the provisions of section 688.1 Codes 1962, 1966
abrogating the distinction between an accessory before the fact and a principal
and requiring that all persons concerned in committing an offense, whether
they directly commit the act or aid and abet its commission, though not
present, be indicted, tried and convicted as principals. The instruction went on
to state that guilt of one who aids and abets commission of a crime must be
determined upon the facts showing the part he had in it and not upon the
degree of another's guilt.
One sufficient answer to the complaint over refusal of defendant's first
request is found in the terms of section 711.2 he was charged with violating*
Under this statute robbery with aggravation may be committed in any one of
three ways: (1) by being "armed with a dangerous weapon, with intent, if
resisted, to kill or maim the person robbed; or (2) if, being so armed, he wound
or strike the person robbed; or (3) if he has any confederate aiding or abetting
him in such robbery, present and so armed — " (emphasis added.) 56<3
Whether there is evidence to support it or not an instruction on lesser of-
fenses must be given.56'4
The trial judge charged the jury that if the process server and the defendant
were within speaking distance of each other and such action was taken as to
convince a reasonable person that personal service was being attempted, ser-
vice could not be avoided by physically refusing to accept the order; also that
refusal of the defendant to accept the order, if he in fact refused to accept it,
did nQt prevent the service from being completed. Such an instruction applies
equally to the service of any paper in any case.56'5
§ 13 INSTRUCTIONS— RULES GOVERNING 8
46>1 North Carolina. Turner v, Turner, 9 overruled in 388 P2d at 44, on other grounds
NCApp 336, 176 SE2d 24 (1970). *"* Iowa. State v. Williams, 261 la 1 1IW, 155
WM Georgia. Sheffield v. State, 244 Ga 245, NW2d 526 (1968).
244 SE2d 869 ( 1978). *** ^iw^&> griffin v, State ( Flu. I, 202 8o2d
MJ Illinois. Zeiler v. Durham, 33 IllApp2d 602 (1967),
273^179 NE2d 34 (1962), MUS Minnesota. State v. OLsen, 278 Minn
M'2 California. People v. Jackson, 59 Cal2d 421 154 NW2d H25 1 1967)
375)( 29 CalRptr 505, 379 P2d 937 (1963),
§ 13. Function of court to interpret papers and documents.
In the construction of a contract it must be construed as a whole and the law
presumes that the parties understood the import of their contracts and that
they had the intention which the contract terms manifest.60'1
Wfl Nebraska. Transport Indem. Co. v. Seib,
178 Neb 253, 132 SW2d 871 (1965).
§ 14. Function of court to determine competency and materiality of
evidence.
After testifying to his familiarity with "street talk" based on his past experi-
ence, a police officer explained to the jury the meaning of the appellant's offer
to give him a "one-way" for a "twenty," stating that it was an offer to give him
straight sex for twenty dollars. It was not error thereafter to fail to charge on
the weight to be given expert testimony, since the witness offered no opinion
on any matter which required special skill, training, or expertise to compre-
hend.85-1
It is the observation by the lay witness of irrational or abnormal behavior on
the part of a subject that justifies allowing him to give an opinion on the
question of sanity. Laymen who comprise the jury are also capable, upon facts
related by such a witness, of forming their own opinion as to the subject's
sanity, and the facts and circumstances related by the witness, in order to be
sufficient to permit the giving of an opinion of insanity, must be such as are
reasonably capable of supporting it, A lay witness, merely because he has
known a person over a length of time, may not be allowed to testify that in his
opinion such person is insane, where the witness had not observed any act or
behavior on the part of the subject reasonably capable of supporting that
conclusion.85-2
8fiu Georgia. Hicks v. State, 145 GaApp 669, 85-2 Mississippi. Alexander v. Slate, — Miss
244 SE2d 597 (1978). — , 538 S2d 379 (1978).
§ 15. Direction of verdict in civil cases.
The general rule for granting or denying a directed verdict in Kansas pur-
suant to Kansas Statutes Annotated, § 60-250, is as follows:
"In ruling on a motion for directed verdict pursuant to K.S.A. 60-250, the
court is required to resolve all facts and inferences reasonably to be drawn from
the evidence in favor of the party against whom the ruling is sought, and where
the evidence is such that reasonable minds could reach different conclusions
thereon, the motion must be denied and the matter submitted to the jury. The
same basic rule governs appellate review of a motion for a directed verdict," 15>l
9 PROVINCE OF THE COURT AND THE JURY § 16A
A motion for a directed verdict should be granted if a verdict for the opposing
party would be set aside as manifestly against the entire evidence viewed most
favorably to opposing party.34-1
When considering a motion for a directed verdict, the trial judge does not
weigh the evidence or pass upon the credibility of witnesses.34 2
Rhode Island is the latest state to the growing number of jurisdictions which
hold that motions for a directed verdict by both parties do not automatically
take the case from the jury.34'3
Some courts state the test for granting defendant's motion for a compulsory
nonsuit in the alternative:
"the evidence is susceptible of but one construction by reasonable men, . . .
or the evidence is in such condition that if the jury were to return a verdict in
favor of the plaintiff, it would become the duty of the court to set it aside." 34-4
Only a scintilla of evidence requires reference of the issue to the jury for
decision.34'5
A plaintiff whose proof rests on oral testimony is not entitled to a directed
verdict, even if defendant offers no evidence, since the credibility and weight
of plaintiffs evidence is for the jury,34'6 This rule does not apply if the defen-
dant in his pleadings or in open court admits plaintiffs claim, or by his evi-
dence establishes plaintiffs claim.34'7
Defendant's motion for a directed verdict (or a general affirmative charge
without hypothesis) should not be granted if there is slight evidence or a
reasonable inference of recovery to be drawn therefrom.34'8
^Kansas. Guarantee Abstract & Title Co. RI 235, 152 A2d 104 (1959).
v. Interstate Fire & Cas. Co., 228 Kan 532, 618 34"4 Montana. Welch v. Nepstad, 135 Mont
P2d 1195 (1980). 65, 337 P2d 14 (1958). It is submitted that these
34tl Minnesota. Hall v. City of Anoka, 256 tests are not identical.
Minn 134, 97 NW2d 380 (1959). 34>s Alabama. St. Louis-San Francisco Rail-
In this test, the court does weigh the evi- way Co. v. Colson Lumber Co., 269 Ala 409, 113
dence. If the test is whether reasonable minds S2d 501 (1959).
would agree, the court does not weigh the evi- 34*6 Missouri. Daly v. Schaefer (MoApp),
dence, but simply views the evidence most 331 SW2d 150 (1960).
favorable to the opposing party without regard 34f7 Missouri. Rogers v. Thompson, 364 Mo
to the unfavorable evidence. 605, 265 SW2d 282 (1954).
34'2 Rhode Island* Gomes v. J & P Realty 34>8 Alabama. Copeland v. United Securities
Co., 89 RI 211, 152 A2d 205 (1959). Life Ins. Co., 275 Ala 328, 154 S2d 747 (1963).
34-3 Rhode Island. Spetelunas v. Dubuc, 89
§ 16A. Effect of both parties moving for directed verdict.
The trial court sits as a jury when both parties have requested directed
verdicts at the same time. But this rule does not apply if one party makes his
motion after the other party's motion has been denied.44'1
When both parties move for a directed verdict, without reservation, the trial
judge becomes the trier of issues of fact. But the trial judge may still request
the jury's decision on any or all issues of fact, if he so desires.44*2
Merely because both parties move for a directed verdict is not a waiver by
both to a jury trial.44'3
M'1 Arkansas. Aetna Ins. Co. v. Warren, Even if the judge then directs a verdict, it is,
231 Ark 405, 329 SW2d 536 (1959). of course, not the same as sitting as the jury.
§ 18 INSTRUCTIONS-RULES GOVERNING 10
When parsing on a motion for a directed verdict 44-a Vermont WUlium Poinstein Bros., Inc.
the judge does not weigh the evidence, but he v. L. Z. Hotte Granite Co., 123 Vt 167, 184 A2d
does if sitting as the jury. 540 (1962).
*** Montana. In re Click's Estate, 136 Mont
176, 346 P2d 987 (1959).
§ 18. Direction, of verdict where there is scintilla of evidence.
The scintilla evidence rule is in effect in Alabama. The general affirmative
charge should not be given against plaintiff if there is the slightest evidence
tending to prove a right of recovery.80'1
80-1 Alabama. Walker v. Town of
Pruithurst, 272 Ala 141, 130 S2d 12 (1961).
§ 19. Summing up evidence by court.
It is not improper and not reversible error for a trial court judge to comment
on the credibility of a witness when the charge to the jury, taken as a whole,
reveals no prejudice to the parties, and the jury is told that it was within its
sole province to resolve any issues of credibility. For example, it was not error
for the court to state in its charge to the jury that the court felt that the victim
"testified fairly and truthfully" because the court also stated that " [blut that's
for you to determine. . . . [Y]ou may be impressed by it [but it's! for you to
determine." Prejudice can not be based on reading isolated excerpts from the
charges which must be taken as a whole.81
The following instruction has been held to fail to give equal stress to the
contentions of the parties and thus constitutes error:
"The state further contends and says that you may make reasonable infer-
ences from the evidence and the evidence in this case tends to show that the
assistant chief of police made an investigation, that he went to the home of the
registered owner and the evidence tends to show after going to the home of the
registered owner, he went directly to the home of the defendant and it was not
long after that the officer took out a warrant for the defendant before a magis-
trate, for defendant's arrest; that the only inference you can draw from such
evidence, and the only reasonable inference is that the investigation revealed
that the defendant was the operator." 92<1
81 Pennsylvania. Commonwealth v. Whit- 92-1 North Carolina, State v. Billmger, 9
ing, 420 A2d 662 (PaSuper 1980). NCApp 573, 176 SE2d 901 (1970).
§ 20. Inferences of fact from the evidence.
The following instruction by the trial court judge:
"In connection with the timely filing within sixty days of the proof of loss,
members of the jury, I instruct you that if you find by the greater weight of the
evidence that the proof of loss was filed, then I further instruct you that the law
of this state further provides that failure to timely file shall not preclude the
plaintiff from asserting his claim unless there is a substantial prejudice done
the defendant by such untimely filing. I instruct you that under the law and
evidence in this case there is no substantial injury or prejudice to the defendant
by the late filing if such were done by the plaintiff"
11 PROVINCE OF THE COURT AND THE JURY § 20
was held not to be reversible error for the following reason:
"[Although the] court's charge technically is erroneous, since the statute
requires a showing that failure to file timely was for good cause as well as a
showing that the failure to so file did not substantially harm the party against
whom liability is sought. However, the judge in essence relieved plaintiff of the
burden of showing good cause and removed the issue of timeliness from the
jury's consideration by stating as a matter of law that defendant was not
substantially harmed. The court's charge amounted to a peremptory instruc-
tion on the issue of timeliness, instructing the jury that, if it found that proper
proofs of loss were filed, plaintiffs claim was not barred due to lack of timely
filing. Such an instruction was favorable to plaintiff and is not grounds for a
new trial." [citations omitted].94 1
The following instruction, by in effect charging that an inference in fact was
raised and by further charging that such an "inference" may be enough by
itself to justify a conviction, directed a verdict against a defendant and was
prejudicial error:
"INSTRUCTION NO. 41. You are instructed that the law in this state is that
the burden on the State is to prove that the animal found in defendant's
possession was the same animal stolen in the larceny. Once the State has done
this, the unexplained possession of recently stolen property raises an inference
of guilt and may be enough by itself to justify conviction for larceny. It is the
duty of the jury to determine from the evidence whether or not possession of
the animal has been sufficiently explained."
Note that the proper instruction would look like this:
"Possession of recently stolen property, if not satisfactorily explained, is
ordinarily a circumstance from which you may reasonably draw the inference
and find, in the light of the surrounding circumstances shown by the evidence
in the case, that the person in possession knew the property had been
stolen."95-1
. . .[Y]ou are permitted to draw from the facts which you find have been
proven such reasonable and logical inferences as you may find from said proven
facts. Of course, an inference is a process of reasoning by which a fact or a
proposition sought to be established is deducted as a logical consequence or a
state of facts already proved or admitted by the evidence.96 *
Although the witness may not have been in a position to ascertain first-hand
knowledge of an event, e.g., odor of alcohol on breath of defendant, the trial
court judge may nevertheless refer to inferences to be drawn from the facts
testified to and express his opinion as to the effect of the evidence, provided that
the court's statement(s) have (1) a reasonable basis in the evidence and (2)
clearly leave to the jury the decision of the facts regardless of the judge's
opinion.96'2
The charge to the jury concerning their ability to make reasonable inferences
from the evidence does not affect the burden of proof on intent to commit
burglary when there is enough evidence to place the issue of intent before the
jury. Such an instruction does not make the jury presume from the fact of
possession that a theft had occurred.96'3
The appellate court said the instruction, "[t]he court instructs the jury that
there is a permissible inference of fact that a man intends that which he does,
or which is the immediate and necessary consequence of his act" was not error.
§ 22 INSTRUCTIONS— RULES GOVERNING 12
Since the use of the word "presumption" was not given, the jury was told they
had a choice rather than implied mandatory court rule,
Although discouraging instructions which attempt to define "reasonable
doubt," the appellate court found the following instruction on the burden of
proof not to be grounds for reversal
"The Court instructs the jury that if, after considering all the evidence, you
have a fixed conviction of the truth of the charge, you are satisfied beyond a
reasonable doubt, then it is your duty to convict the Defendant, The doubt
which will justify an acquittal must be actual and substantial nor a mere
possible doubt, because everything relating to human affairs and depending on
oral evidence is open to some possible or imaginary doubt. If you believe from
the evidence, beyond a reasonable doubt, that the Defendant is guilty, though
you also believe it possible he is not guilty you should convict the Defendant.1'
The court said trial courts must /utilize standard instructions pronounced by
the State Supreme Court in criminal cases.96'4
If you find that the defendant had exclusive possession of recently stolen
property, and there was no reasonable explanation of his possession, you may
infer that the defendant obtained possession of the property by burglary or by
theft, or by burglary and theft.11'1
94a North Carolina. Brandon v. Nation- Benson, 421 A2d 383 (PaSuper 1980).
wide Mutual Fire Ins. Co., 271 SE2d 380 (NC 96>3Khode Island. State v, DiMuccio, 431
1980). ' A2d 1212 (RI 1981).
"-1 Idaho. State v. Owens, 101 Idaho 632, mA West Virginia. State v, Greenlief, 285
619 P2d 787 (1980). SE2d 391 (WVaApp 1981).
96-1 Pennsylvania. Commonwealth v, l u Illinois. People v. Poe» 48 111 2d 506, 272
Biancone, — PaSuper — , 375 A2d 743 (1977). NE2d 28 (1971).
M-2 Pennsylvania. Commonwealth v.
§ 22. Disparaging comments on merits of case.
Before it can be said that comments made by the trial court judge in
instructing the jury are of such prejudicial nature as to require a mistrial, the
remarks must be such that they impair the impartiality of the trial. Otherwise,
the remarks will not be judicial misconduct.29'1
29J Rhode Island. State v. Rogers, 420 A2d
1363 (RI 1980).
§ 24. Assumption of facts — Statement of issues and claims.
A court may, without erroneously invading the province of the jury, assume
as a fact a matter of common knowledge, or a fact which the court takes judicial
notice of, in its instructions tp the jury.71*1
When there was evidence that there had been a collision between a minibike,
which had stopped at an intersection and had then made a right-hand turn, and
a tractor trailer, which also had made a right-hand turn at the intersection and
in so doing had "side-swiped" the plaintiff riding on the minibike, the following
instruction was not error and did not invade the fact finding province of the
jury;
13 PROVINCE OF THE COURT AND THE JURY § 28
"The court has determined, and now instructs you as a matter of law that the
circumstances at the time and place of the incident complained of were such
that the Defendant, LLOYD LEE JACKSON, had a duty to use reasonable care
for ROBERT REARDEN'S safety." 72 1
7L1Iowa. State v.Welton, 300 NW2d 157 (la 72<1 Florida. Jackson v. Rearden, 392 S2d
1980). 956 (FlaDistApp 1981),
§ 25. Assumption of facts — Established, uncontroverted or admitted
facts.
You are instructed that Section 21804 of the Vehicle Code of California . . .
provided ... as follows:
«
"You are further instructed that the driveway from which the automobile
driven by J. A. entered Ocean Park Boulevard was a private driveway within
the meaning of the provision. . . ,"86 1
It has been stipulated in this case that the defendant pleaded guilty in the
Municipal Court of the City of Sioux City, to a charge of failure to yield the
right-of-way. Such evidence may be considered by you as an admission that the
defendant did in fact fail to yield the right-of-way. The plea is in no way
conclusive. It is an admission against interest and may be explained.94 1
86J' California. Eager v. McDonnell Douglas 94<1 Iowa. Nassif v. Pipkin (la), 178 NW2d
Corp., 32 CalAppSd 116, 107 CalRptr 819 334(1970),
(1973),
§ 27, Weight of contradictory evidence for jury in civil cases.
No error was found in the following:
An opinion is what someone thinks about something and the thought may
be precisely accurate or totally inaccurate and yet represent the absolute (sic)
honest conviction of the person who expressed it. Because of this, opinion
evidence is generally considered of inferior or low grade and not entitled to
much weight against positive testimony of actual facts.34'1
The evidence in this case presented a typical question for decision by a jury.
When such conflicts are settled by a jury's verdict, the court should not set
aside the verdict for the reason that it might, sitting as a juror, have reached
a different conclusion. This ought only to be done where the evidence is clearly
insufficient to support a different conclusion.35'1
34.1 Pennsylvania, Kuchinic v, McCrory, 35a Virginia. Haynes v. Bekins Van &
439 Pa 314, 266 A2d 723 (1970). Storage Co., 211 Va 231, 176 SE2d 342 (1970).
§ 28. Questions of fact and weight of evidence in criminal cases.
It is solely and exclusively for the jury to weigh the evidence and find and
determine the facts when they are disputed and this you must do from the
evidence alone, or lack of evidence, and having done so apply the law as stated
in these instructions.61"1
§ 28 INSTRUCTIONS-RULES GOVERNING 14
It is shown by the testimony, and undisputed in the record, that at the time
the defendant was being held at the police station in Mt. Pleasant on the charge
for which he is now on trial, he was requested by Patrolman W, and also by Dr.
C. to have blood or urine tests to determine alcoholic content, which requests
were refused.
You are instructed that in this case defendant's refusal to submit to any test
is a circumstance to be considered by the jury, together with all other facts and
circumstances shown by the evidence, in determining the question as to
whether the defendant was or was not intoxicated at the time involved in this
case.61-2
If you are convinced by the evidence in this case beyond a reasonable doubt
that the act alleged as the crime with which the defendant is here charged was
in fact committed, and you further find that immediately or soon thereafter the
defendant fled from the place where such act is alleged to have been committed,
then the night of the defendant is a circumstance to be considered by the jury,
together with the other evidence in the case. It is not sufficient in itself to
establish the guilt of the defendant, but its weight as evidence is a matter for
the jury to determine in connection with all the other facts in the case. *
Evidence has been introduced in this case that at some other time certain
witnesses may have said or done something, or may have failed to say or do
something, which is consistent with, or inconsistent with, their testimony at
the trial. This evidence is to be considered by you only for the purpose of
determining the credibility of those witnesses and the weight to be given their
testimony and is not to be considered by you for any other purpose.
You are the sole judges of the credibility of the witnesses and of what weight
is to be given to the testimony of each. In determining what credit is to be given
any witness, you may take into account his ability and opportunity to observe,
his memory, his manner and appearance while testifying, any interest, bias or
prejudice he may have, and the reasonableness of his testimony considered in
the light of all the evidence, and any other factors that bear on believability
and weight.61'4
You are the sole judges of the credibility of the witnesses and of the weight
to be given to the testimony of each of them. In considering the testimony of
any witness, you may take into account his ability and opportunity to observe,
his memory, his manner while testifying, any interest, bias or prejudice he may
have, and the reasonableness of his testimony considered in the light of all the
evidence in the case.61'5
The law makes it your duty to reconcile conflicting evidence, if there b© such
evidence in this case, so as to make all the witnesses speak the truth and
perjury be imputed to none of them. But if there be any evidence in this case
in such irreconcilable conflict that this cannot be done, it would be your duty
to believe that testimony which is most reasonable and most creditable to you
under all the circumstances and the evidence in the case,63'1
If the evidence is in conflict as to the existence of a marriage, two procedures
have been used to determine whether a marriage exists. The trial judge may
hear evidence to determine whether a marriage exists, and his decision will not
be disturbed on appeal if there is any evidence to support his finding.
15 PROVINCE OF THE COURT AND THE JURY § 28
The second procedure is for the trial court to submit to the jury with appro-
priate instructions the question of whether or not a marriage exists. . . . When
conflicting evidence was introduced, the trial judge did not err in allowing the
jury to make the factual determination as to whether a marriage existed
between the appellant and Allen.63-2
The following instruction, by in effect charging that an inference in fact was
raised and by further charging that such an "inference" may be enough by
itself to justify a conviction, directed a verdict against a defendant and was
prejudicial error:
"INSTRUCTION NO. 41. You are instructed that the law in this state is that
the burden on the State is to prove that the animal found in defendant's
possession was the same animal stolen in the larceny. Once the State has done
this, the unexplained possession of recently stolen property raises an inference
of guilt and may be enough by itself to justify conviction for larceny. It is the
duty of the jury to determine from the evidence whether or not possession of
the animal has been sufficiently explained."
Note that the proper instruction would look like this:
"Possession of recently stolen property, if not satisfactorily explained, is
ordinarily a circumstance from which you may reasonably draw the inference
and find, in the light of the surrounding circumstances shown by the evidence
in the case, that the person in possession knew the property had been
stolen."68 1
The record shows that the jury was charged to the effect that they could
believe any explanation consistent with the innocence of the defendants
regarding their possession of stolen property, if possession of stolen property
was established. This instruction directed the jury to have regard to the defen-
dants' contention as to how they came to be in possession of the property. There
was no request for any particular instruction in this regard. The trial court did
not err in not charging further.70"1
The Court instructs the jury that in this case what is known in law as an
"alibi," that is, that the defendant was at another place at the time the crime
charged in the information was committed, is relied upon by the defendant; and
the court instructs the jury that such a defense is as proper and legitimate, if
proved, as any other, and all the evidence bearing upon that point should be
carefully considered by the jury, and if, in view of all the evidence, the jury
have any reasonable doubt as to whether the defendant was in some other place
when the crime was committed, they should give the defendant the benefit of
the doubt and find him not guilty.71"1
Thus, in order to resolve whether a killing was justified under self-defense
principles, or whether it was not justified amounting to voluntary
manslaughter, the question becomes whether defendant's belief that he had to
use deadly force was reasonable, under the circumstances. This is a question to
be determined by the trier of fact and his finding will not be set aside on review
unless the evidence is so unsatisfactory as to leave a reasonable doubt of
defendant's guilt,72-1
The court instructs the jury that the testimony of parties aiding, assisting,
encouraging, and abetting the crime is admissible; yet their evidence when not
corroborated by the testimony of others not implicated in the crime, as to
iriatters material to the issue, should be received with great caution by the jury,
§ 28 INSTRUCTIONS- RULES GOVERNING 16
and they should be fully satisfied of its truth before they should convict the
defendant on such testimony.85 l
An accomplice testifying for the prosecution is generally regarded as an
interested witness, and a defendant, upon timely request, is entitled to an
instruction that the testimony of the accomplice should be carefully
scrutinized. Since an instruction to carefully scrutinize an accomplice's testi-
mony is a subordinate feature of the trial, the trial judge is not required to so
charge in the absence of a timely request for the instruction, But when a
defendant makes a request in writing and before argument to the jury for an
instruction on accomplice testimony, the court should give such instruction.
And once the judge undertakes to instruct the jury on such subordinate issue
it must do so accurately and completely. The court, however, is not required to
give the requested instruction in the exact language of the request, but is only
required to give such instruction in substance.
In present case, concerning Clark, the trial judge instructed the jury:
"Now, as to the witness Clark, I instruct you that he is in Law what is known
as an accomplice. And our Court has said that a person may be convicted on
the unsupported testimony of an accomplice, if that testimony is believed by
the Jury. However, in considering the weight and credibility you will give to
the testimony of Clark, I instruct you that you should carefully examine his
testimony for the purpose of determining what weight and credibility it
deserves. You should scrutinize it with care, all to the end that you will deter-
mine whether he is truthful or not, because in Law, an accomplice does have
an interest and bias in the case and in what your verdict will be.
"So, Members of the Jury, it's dangerous to convict upon the testimony of an
accomplice but if you find that he is truthful, then you may, if you are satisfied
from the evidence and beyond a reasonable doubt, convict upon his
unsupported testimony." 85'2
The jury does not have to actually know that the defendant is guilty in order
to convict, but may convict if it believes him guilty from all the evidence in the
case beyond a reasonable doubt.90'1
You are the sole judges of the credibility of all the witnesses who have
testified in this case, and of the weight to be given to their testimony. A witness
is presumed to speak the truth; but this presumption may be repelled by the
manner in which he testifies, by the nature of his testimony or by the evidence
affecting his character for truth, honesty or integrity or his motives, or by
contradictory evidence; and in determining the weight to be given to the testi-
mony of any witness, you have the right to consider the appearance of each
witness on the stand, his manner of testifying, his apparent candor or lack of
candor, his apparent fairness or lack of fairness, his apparent intelligence or
lack of intelligence, his knowledge and means of knowledge on the subject upon
which he testifies, together with all the other circumstances appearing in
evidence on the trial.90-2
•" Iowa. State v. Estrella, 257 la 462, 133 61"4 Washington, State v, Morginon, 5
NW2d 97 (1965). WashApp 248, 486 P2d 1 1 15 ( 1 97 1 ).
6L2Iowa. State v. Holt, 261 la 1089, 156 61JI Illinois. People v. Heard, 48 IlUid 356,
NW2d 884 (1968). 270 NE2d 18 (1971).
w'3 Washington. State v. Gregory, 79 63J Georgia. Buttram v. State, 121 GaApp
Wash2d 637, 488 P2d 757 (1971). 186, 173 SB2d 272 (1970).
17 PROVINCE OF THE COURT AND THE JURY § 29
63-2 Georgia. Sheffield v. State, 241 Ga 245, 784, 16 IllDec 407, 374 NE2d 1285 (1978).
244 SE2d 869 (1978). 85J Kansas, State v. McLaughlin, 207 Kan
6ai Idaho. State v. Owens, 101 Idaho 632, 584, 485 P2d 1352 (1971).
619 P2d 787 (1980). 85-2 North Carolina. State v. Abernathy,
70-1 Georgia. Touchstone v. State, 121 295 NC 244, 244 SE2d 373 (1978).
GaApp 602, 174 SE2d 450 (1970). 9(U Mississippi. Collins v. State (Miss), 202
7L1 Colorado. McGregor v. People, 176 Colo S2d 644 (1967).
309, 490 P2d 287 (1971). 90<2 Montana. State v. Hart, 625 P2d 21
72-1 Illinois, People v. Smith, 58 IllAppSd (Mont 1981).
§ 29. Comments and expressions of opinion on the evidence — In
general.
The judge in this case was obviously reading the warrant upon which the
defendant was being tried. This cannot be held to be an expression of opinion
by the trial judge. This instruction constitutes merely a discharge of the court's
duty to declare and explain the law of the case.96 1
"Let me interpose this observation before the jury retires, I don't like to
intervene here in the course of the trial of the case or interrupt argument of
counsel during the trial of the case or suggest any Court disapproval of
comments that have been made in the absence of objections being taken, and
there was no objection taken to the comment just made by Mr. J. (P's counsel).
If I understood it correctly, at least, he invites the jury to draw the inference
that because no evidence was introduced here showing this man involved in
any other offenses that the fair inference is that he has never been in any
trouble. Well, as a matter of law no evidence of other criminal offenses or other
convictions would be admissible unless he had undertaken to vindicate himself
and taken the stand himself and then he could have been impeached by
showing — or an effort to impeach him or detract from his credibility — an
effort could have been taken on behalf of the prosecution to show, or ask if he
had ever been convicted of a felony, and without going into the details of it,
that's the permissible question and answer for the record in the case. But under
the circumstances of this trial that opportunity was not afforded the prosecutor
and in the absence of taking of the witness stand by the accused himself, the
prosecutor could not prejudice his defense by putting in proof of any other
offenses had any existed, and I'm not even suggesting that other offenses had
been committed, I'm merely pointing out that I don't think that Mr. J.'s invita-
tion to draw the inference, that because there is no evidence of other offenses,
that you should imply or infer that therefore this man has a lily white
background. Whether he does or not I don't know, it's not before you and it's
not for consideration. I'm merely suggesting that the invitation of Mr. J. to
infer that he has a good record, that invitation ought to be rejected because
there is no evidence on which to sustain it." 96 2
Although the witness may not have been in a position to ascertain first-hand
knowledge of an event, e.g., odor of alcohol on breath of defendant, the trial
court judge may nevertheless refer to inferences to be drawn from the facts
testified to and express his opinion as to the effect of the evidence, provided that
the court's statement(s) have (1) a reasonable basis in the evidence and (2)
clearly leave to the jury the decision of the facts regardless of the judge's
opinion.9'1
§ 29 INSTRUCTIONS-RULES GOVERNING 18
The Nebraska Supreme Court has recently aided trial judges in an attempt
to clarify the limits on judicial comment while charging the jury.
The court held that (1 ) It is prejudicial error to submit to the jury an essential
issue of fact for which there is no proof; (2) An instruction should not assume
as established a disputed issue offact; and (3) It is the duty of the court on its
own motion to instruct as to all issues of fact that are pleaded and upon which
there is evidence to support them. The instruction out of which these rules were
developed read as follows: "The plaintiff herein as a police officer had a right
to be in the street in the performance of his duties as a police officer, but, in
this connection, you are instructed that he cannot by virtue of that right be
heedless of the rights of others who have a lawful right to use the streets and
highways. He had the legal right to assume that his rights in the use of the
street would be respected by other users of the street, but one having the right
to be in the street may not on that account proceed serenely unconscious of the
surrounding circumstances."
These statements in the instruction are without qualification and, in
context, constitute prejudicial comments on the evidence and are therefore
forbidden. Even assuming there was such evidence, this instruction, by reason-
able construction assumes as established a disputed issue of fact and therefore
« 191
is erroneous.
An instruction that "there is considerable conflict in the testimony which
cannot be reconciled" is erroneous.26 -1
Disapproved are instructions which select an item of evidence and then state
that a certain conclusion does not follow as a matter of law. An instruction that
no indication of liability is made by the court's damages instruction is not this
type of disapproved instruction. Nor an instruction that the court is not
intimating liability merely because the court submits the case to the jury,
These instructions do not isolate an item of evidence. Rather they caution the
jury not to make an improper reference from what the court has said or done.
Although instructing that plaintiffs injury alone does not warrant a finding
that defendant's negligence caused the injury comes close to the condemned
type, this instruction has been approved.26*2
It is not error to give the following instruction even in light of recent United
States Supreme Court decisions; "Now, in this particular case, the defendant
did not take the stand. By doing so, the court must charge you at this time that
by not taking the stand and testifying in this case, the accused has exercised
his constitutional right because, as I told you before, it is the burden of the state
to prove him guilty beyond a reasonable doubt. He does not have to prove that
he did not commit this offense with which he stands charged." 2(L;i
Admission of evidence and telling the jury that it may be considered is not
the same as emphasizing that unfavorable inferences may be drawn from
failure to testify. Also evidence as to what a defendant did or refused to do or
said incident to arrest after constitutional warning is not the same as comment
on failure to testify at trial.26'4
"At our previous meeting you returned a finding in regard to the value of the
wells in the amount of $766. Subsequent thereto the respondents Beier filed a
motion requesting that the findings in regard to the wells and equipment be
set aside and the commissioners be given additional instructions in that the
findings were not consistent with the evidence. On the basis of that motion the
19 PROVINCE OF THE COURT AND THE JURY § 31
court issues an opinion and order granting the motion to set aside the finding
in regard to the wells and reconvening the commissioners for further instruc-
tions.
"The court in issuing its opinion found that the only evidence to substantiate
the finding of $766 was when Mr. E, testified that when all production was
completed the wells and equipment would have a salvage value of $766.
"At the time of the taking the evidence indicated that in regard to the Beiers
all production was not completed. In my original instructions regarding the
value of the wells, I instructed you as follows: you are instructed that you
should approach the valuation of theoBeier wells, so called, in the same manner
as all other property. What was the fair market value of the wells on the date
of taking. You are instructed that you are not to consider what value the Beier
well might have to the petitioner but rather what the value of the Beier well
was at the marketplace on the date of taking.
"Evidence has been offered by the petitioner that the cost of drilling and
equipping the well was $72,361, and on the basis of the Beiers' ownership of
85.24% of such well, that their share of the drilling and equipment amounted
to $61,682. At this time I instruct you further that at the time the well was
drilled on the Beier property there remained 1,888,654 Mcf of gas on the Beier
tract; the Beiers' share being 1,609,919 Mcf of gas. At the date of the taking
there remained on the Beier tract 1,470,444 Mcf; the Beiers' share being
1,253,260 Mcf, indicating that the wells and equipment removed from the
Beier tract 418,742 Mcf of gas and that the Beiers' share being 356,346 Mcf of
gas.
"Therefore, you are instructed that you are to find the value of the wells and
equipment based upon this evidence which was presented in this case. You
cannot find the value of $766 because all production has not taken place." 26'5
It is settled that a trial justice invades the province of the jury when he
expresses an opinion on credibility or conveys to the jury his impression of the
weight that they should give to any of the testimony.26'6
m-1 North Carolina. State v. Rennick, 8 26<2 Illinois. Perez v. Baltimore & 0. R. Co.,
NCApp 270, 174 SE2d 122 (1970). 24 IllApp2d 204, 164 NE2d 209 (1960).
*** Virginia. Poole v. Commonwealth, 211 26>3 Connecticut, State v. Powers, 4
Va. 262, 176 SE2d 917 (1970). ConnCir 520, 236 A2d 354 (1967).
*•* Pennsylvania. Commonwealth v. 26'4Iowa. State y. Holt, 261 la 1089, 156
Benson, 421 A2d 383 (PaSuper 1980). NW2d 884 (1968).
12.1 Nebraska. Pensyl v. Gibb, 182 Neb 573, 26JS Michigan. In re Michigan Consolidated
156 NW2d 27 (1968). Gas Co. v. Muzeck, 8 MichApp 329, 154 NW2d
261 Indiana. Finster v. Wray, 131 IndApp 667 (1967).
303, 164 NE2d 660 (1960). The court held, how- 26'6 Rhode Island. State v. Goff, 107 RI 331,
ever, that the error, when considered with other 267 A2d 686 (1970).
instructions, was not prejudicial,
§ 31. Comments and expressions of opinion — Cases of contract and
tort.
The following has been held not to constitute an expression of opinion on any
of the evidence:
"You see, we are having the same trouble with all of the witnesses. They do
not pay attention to the question. They answer another question from the one
that is asked. I am not criticizing this man particularly. They all do it. Now,
§ 32 INSTRUCTIONS-RtlLKSCiOVKRNINC} 20
you didn't pay attention to the question. Answer that question and nothing
else. Now, as I see it, counsel didn't ask you what lane you wore in at all. He
asked you merely about your speed, so you answered another question. Now,
he wants to know in that travel, the distance between the time you first saw
the DeVries car to the time you got to 71st Street was your speed constant at
ten to fifteen, or was it changed." 3a l
The following instruction constitutes a comment on the testimony requiring
reversal:
"The Court instructs the jury for the Plaintiff that malice may be determined
by this jury from a preponderance of the evidence, from the defendant, J. R.'s
conduct and declaration, and from the zeal and activity of J. R in pushing the
prosecution against J. H. A." 66 l
381 Illinois. Bebb v. Yellow Cab Co., 120 66J Mississippi. Allen v. Ritlw (MLss), 235
niApp2d 454, 257 NE2d 164 (1970). S2d 253 (1970).
§ 32. Comments and expressions of opinion — Criminal eases*
Concerning appellant's claim that the district court erred when it refused to
give a cautionary instruction regarding the credibility of informants, such an
instruction is required when an informant's testimony is uncorroborated and
favored when the testimony is corroborated in critical respects.6'1
An instruction is erroneous if it fails to define or indicate to the trier of fact
what either constitutes a "culpable mental state" or what culpable mental
state will support the crime charged. Therefore, in a criminal case where the
defendant was charged with riot, the trial court committed error when it
charged the jury that "to constitute a crime there must be the joint operation
of an act forbidden by the law coupled with a culpable mental state." iru
A trial judge may express his opinion on the weight of the evidence and the
guilt or innocence of the accused, if done "fairly and temperately" and if the
ultimate decision is the jury's.22-1
It is not improper and not reversible error for a trial court judge to comment
on the credibility of a witness when the charge to the jury, taken as a whole,
reveals no prejudice to the parties, and the jury is told that it was within its
sole province to resolve any issues of credibility. For example, it was not error
for the court to state in its charge to the jury that the court felt that the victim
"testified fairly and truthfully" because the court also stated that "|b|ut that's
for you to determine. . . [Y]ou may be impressed by it I but it's] for you to
determine." Prejudice can not be based on reading isolated excerpts from the
charge which must be taken as a whole.22*2
Self-defense. Although the following instruction is consistent with the prin-
ciple that in self-defense defenses a defendant's actions are to be judged from
his or her own personal impressions at the moment and not from the vantage
point of a detached juror, i.e., the "subjective test";
"It is a defense to the charge of murder that the homicide was justifiable as
defined in this instruction.
"Homicide is justifiable when committed in the lawful defense of the slayer
when the slayer has reasonable ground to believe that the person slain intends
to inflict death or great bodily harm and there is imminent danger of such
harm being accomplished.
21 PROVINCE OF THE COURT AND THE JURY § 32
"In determining whether or not a defendant is justified in using force against
another person in defense of her own person, the defendant, as a reasonably
and ordinarily cautious and prudent woman, may use that force which, in the
same situation, seeing what she sees and knowing what she knows, would
under the circumstances have appeared reasonable to her at the time in ques-
tion, when the court continued in its charge and defined great bodily harm as:
"Great bodily harm" means an injury of a more serious nature than an
ordinary striking with the hands or fists. It must be an injury of such nature
as to produce severe pain and suffering,"
this was prejudicial error to the defendant and required a reversal because the
court interjected its own opinion as to what constituted "great bodily harm,"
thus making an impermissible comment on the evidence. When the court is
defining "great bodily harm" in the context of a self-defense instruction, it
should charge that:
"in interpreting the evidence, and in determining whether the defendant had
reasonable grounds to fear great bodily harm or imminent death, you should
look at the circumstances from the viewpoint of the defendant at the time of
the incident, given his or her knowledge at the time of the incident." 22-3
The following has been held to constitute an expression by the court as to
whether a fact is fully or sufficiently proven:
"I am allowing the defendant's motion for nonsuit on that first count and as
all the evidence tends to show he did stop there; so the only question before you
is whether the defendant is guilty or not guilty of a second count in the bill,
which I am consolidating all in one count, that of failing to give certain speci-
fied information and failing to render reasonable assistance to injured persons;
that is K. M. M., the wife of the witness who testified, Mr. S. M., Mr. S. M. and
Mrs. J. D. M., S. M.'s mother-in-law." 76-1
The mere fact that the testimony of a rape victim is uncorroborated does not
per se constitute a reason for distrusting the victim's testimony so as to require
a cautionary instruction, especially where the evidence and testimony fails to
show any personal enmity between the victim and the defendant. Therefore, in
the absence of any disputed evidence that would give reason to distrust the
uncorroborated testimony of a rape victim, the following requested instruction
was properly refused:
"You are instructed that the charge of Sexual Intercourse Without Consent
is easy to make, difficult to prove, and more difficult to disprove, and in con-
sidering a case of this kind, it is the duty of the jury to carefully and delib-
erately consider, compare and weigh all testimony, facts and circumstances
bearing on the act complained of, and the utmost care, intelligence and freedom
from bias should be exercised by the jury (sic) consideration thereof."
The following instruction, however, that the court chose to give on the issue
of consent instead of the defendant's requested charge was held improper as
argumentative and a commentary on the evidence:
"There is no clear rule as to how much resistance is required of a woman in
order to prove her lack of consent to sexual intercourse with a man who intends
to rape her, apparently at all costs. The law does not put her life into even
greater jeopardy than it is already in, There is no way a woman in dealing with
a man bent on rape can know how much resistance she can give without
provoking him into killing her. Continuous resistance to an attempted rape is
not required." 8L1
§ 32 INSTRUCTIONS— RULES GOVERNING 22
After the jury had retired and had begun its deliberations the following
occurred:
"BY THE COURT: All right, the bailiff advised me that one member of the
jury has stated to her that they might want to ask me a question; is that the
purpose of the jury coming back in the Courtroom or has the jury reached a
verdict?
"BY JURY MEMBER:
No, sir, we want to ask a question.
"BY THE COURT:
All right, sir, what is the question?
"BY JURY MEMBER:
We need an interpretation of premeditation.
"BY THE COURT:
All right, now, the only thing I can say to the jury is what is already covered
in the instructions. Now, on the instructions, the word malice aforethought has
been used. Is that the same definition that you need?
"BY JURY MEMBER:
Possibly, we were considering premeditation — a length of time,
"BY THE COURT:
Let me go to Jury Instruction S-4, which states: The Court instructs the jury
that murder is the wilful, unlawful and felonious killing of a human being with
malice aforethought without authority of law by any means or in any manner
when done with deliberate design to effect death of the person killed and not
in necessary self-defense. Now, that is the definition of murder, and I have
looked at the instructions again and premeditation is not used in the instruc-
tions. So, the jury is instructed with the phrase malice aforethought.
"BY JURY MEMBER:
Could you give us an interpretation of malice aforethought?
"BY THE COURT:
In what regard, now?
"BY JURY MEMBER:
Is it planned or is it just the thought?
"BY THE COURT:
All right, let me say this. All I can say about malice aforethought is that there
is no time limit as long as the malice aforethought existed before the incident
occurred, and there is no definition of law of any length of time,
"BY JURY MEMBER:
All right, I think that answers that.
"BY THE COURT:
Does that answer your question?
"BY JURY MEMBER:
Yes, sir.
"BY THE COURT:
All right, if the jury will go and retire, and when you have reached a verdict,
knock on this door and the bailiff will so advise me."
It was held that the preceding dialogue neither was an "instruction to the
jury so that it was required to be in written form, nor was the dialogue an
improper comment by the court on the evidence.
23 PROVINCE OF THE COURT AND THE JURY § 34
Thus, the province of the jury was not invaded by the court, which had
properly instructed the jury on the elements of malice aforethought and
manslaughter.85 1
Although the trial court erroneously charged the jury on the weight to be
given evidence of good character and then, at the insistence of the state and
over the objection of defense counsel, recalled the jury and instructed them as
follows:
"[T]he state, well, an attorney attracted my attention, the district attorney,
to a charge I gave you on good character, It is my duty — that I erroneously
gave you that charge and I believe he is probably right — You are, therefore,
instructed to eliminate the charge from your mind and memory; it is not
applicable. By this charge I do not imply that the defendant has bad character
nor do I imply that he has good character. I am saying to you it is not relevant:
Therefore, it should not be taken into consideration,"
this was not error because the trial court judge nevertheless instructed the jury
not to consider the issue of character in one way or another,87 1
I believe that altogether we heard from eighteen witnesses, some contributed
very little, some contributed a great deal, some had no interest in the outcome
of this case.991
6J Nevada. Buckley v. State, 600 P2d 227 7<u North Carolina. State v. Billinger, 9
(Nev 1979). NCApp 573, 176 SE2d 901 (1970).
15-! Colorado, People v. Bridges, 620 P2d 1 8M Montana. State v. Pecora, 619 P2d 173
(Colo 1980). (Mont 1980).
22J Pennsylvania. Commonwealth v. 85J Mississippi. Carrol v. State, 391 S2d
Raymond, 412 Pa 194, 194 A2d 150 (1963). 1000 (Miss 1980)
22-2 Pennsylvania, Commonwealth v. 87J Georgia. Carroll v. State, 271 SE2d 650
Whiting, 420 A2d 662 (PaSuper 1980). (GaApp 1980).
22-3 Washington. State v. Painter, 620 P2d "-1 Rhode Island. State v. Goff, 107 RI 331,
1001 (Wash 1980). 267 A2d 686 (1970).
§ 34. Weight of admissions of parties.
An admission of a party to a suit, that is, a plaintiff or defendant, made out
of court, is admissible in evidence, not as the equivalent of direct testimony of
the declarant in respect to any fact in issue, but because conduct of a party in
respect to matters in dispute, whether by act, speech or writing, which is
inconsistent with the truth of any of his contentions in this trial, is a fact
relevant to the issue involved in any such contention,42'1
Appellant first contends that the trial court committed prejudicial error in
failing to instruct sua sponte that evidence of a defendant's non-tape recorded
admissions must be viewed with caution. The rule is firmly established that
such an instruction, when called for by the evidence, must be given, even
without a request therefor An admission is "any statement by an accused
relative to the offense charged." 51<1
424 Connecticut. Worden v, Francis, 153 61pl California. People v. Palmer, 80
Conn 578, 219 A2d 442 (1966). CalAppSd 239, 145 CalRptr 466 (1978).
§ 35 INSTRUCTIONS— RULES GOVERNING 24
§ 35. Weight of expert testimony.
In determining the fair, cash, market value of each of these parcels, you may
rely upon certain things; such as, the view of the premises and their
surroundings which you have had, the description of the physical char-
acteristics of the property, and the situation in relation to various properties
in the neighborhood. The opinions of competent expert witnesses. A con-
sideration of the uses for which the land is adapted and for which it is available,
the improvements, if they are such as to increase the market value of the land,
the income from the land if the land is devoted to one of the uses to which it
could be most advantageously and profitably applied. You may consider the
opinions of witnesses, their estimates of value and their methods of arriving at
the conclusions expressed but you are not bound by such testimony alone. You
are to exercise your judgment, based upon your own knowledge gained from a
view of the premises and your experience as freeholders and the evidence
introduced in the case.52'1
". . . [Generally, when a person is charged with a criminal offense and there
is no evidence introduced concerning his mental condition, under such circum-
stances it is to be presumed that the person charged with the crime was of
sufficient mental capacity to commit it. We assume under those circumstances,
as I just recently indicated, that the man has the mental capacity to commit
a crime. The law states that in such cases there is a presumption that a person
is sane."
". . . [C]onsider and look at the whole evidence regarding the mental condi-
tion of the defendant in making [the] determination [of sanity or insanity]/'
and that "[t]he burden is upon the Commonwealth to prove that the defendant
was legally sane beyond a reasonable doubt ... as I have already defined for
you the meaning of proof beyond a reasonable doubt."
"... [We] have had some opinion testimony given by psychiatrists, psychol-
ogists, and we have heard other evidence as to the mental capacity of the
defendant for his acts or conduct" . . . Those who have "given special attention
and study to the field of mental infirmities and weaknesses I are! allowed to
give [their] opinion as to the mental capacity of a defendant to commit a crime"
. . . "It doesn't follow that [they] are to usurp the function or stand in the place
of the jury." Experts7 opinions are "evidence for your consideration" and "sub-
ject to the weight that the jury feels should be given to it."
The judge then told the jury that "in assessing a defendant's mental respon-
sibility for crime, the jury should weigh the fact that a great majority of men
are sane and the probability that any particular man is sane." The assessment
of mental responsibility for crime is to be made in each case in the light of the
evidence introduced, the circumstances that [the jury] have heard. As sole
judges of the credibility and weight of all evidence on the issue of insanity, the
jury "may believe, but is not compelled to believe, any . . . testimony or opinion
given by an expert."
. . . "[I]t has been stated in our judicial decisions that it is for the jury to
determine whether or not the fact that a great majority of men are sane and
the probability that any particular man is sane may be deemed to outweigh the
evidential value of any expert testimony that [a person] is insane" . , . "ll]t is
for the jury to determine again on all the evidence and all of the circumstances
whether the defendant did or did not lack mental capacity to commit a
25 PROVINCE OF THE COURT AND THE JURY § 36
52-1 Michigan. In re Virginia Park Rehabili- 52-2 Massachusetts. Commonwealth v.
tation Project, 44 MichApp 11, 204 NW2d 732 Walker, — Mass — , 350 NE2d 678 (1976).
(1972).
§ 35 A. Expert testimony — When not required.
. . . [I]n cases in which a jury can find of their own lay knowledge that there
exists a design defect which exposes users of a product to unreasonable risks
of injury, expert testimony that a product is negligently designed is not
required It is within the knowledge of the jury whether unshielded metal
protrusions on the handle bar of a snowmobile constitute a defect in design
which creates an unreasonable risk of harm.64 1
After testifying to his familiarity with "street talk" based on his past experi-
ence, a police officer explained to the jury the meaning of the appellant's offer
to give him a "one-way" for a "twenty/5 stating that it was an offer to give him
straight sex for twenty dollars. It was not error thereafter to fail to charge on
the weight to be given expert testimony, since the witness offered no opinion
on any matter which required special skill, training, or expertise to compre-
hend.64'2
64-* Massachusetts. Smith v. Ariens Co., 78 64'2 Georgia. Hicks v. State, 145 GaApp 669,
Mass 1857, 377 NE2d 954 (1978). 244 SE2d 597 (1978).
§ 36. Weight of circumstantial and negative evidence.
Where direct evidence existed of the accused's guilt, it was held not to be
error to give the following instruction even though it did not contain the
"hypothesis of innocence" doctrine:
"I instruct you that evidence may be of two kinds, direct or circumstantial.
Direct evidence relates directly to factual questions and is produced by wit-
nesses testifying directly from their personal observation. Circumstantial evi-
dence relates to facts and circumstances from which the jury may infer other
or connected facts which usually and reasonably followed according to the
common experience of mankind.
"Circumstantial evidence may be properly considered by the jury. Its value
and weight are to be determined from its character and nature and from its
relation to all of the other facts which the jury finds to be otherwise established
by the other evidence in the case.
"If, upon consideration of the whole case, you are satisfied beyond a reason-
able doubt of the guilt of any defendant, it does not matter whether such
certainty has been produced by direct evidence or by circumstantial evidence.
The law makes no distinction between circumstantial and direct evidence in
the amount of proof required for conviction." 66tl
Where direct evidence existed of the accused's guilt, it was held not to be
error to give the following instruction even though it did not contain the
"hypothesis of innocence" doctrine:
"I instruct you that evidence may be of two kinds, direct or circumstantial.
Direct evidence relates directly to factual questions and is produced by wit-
nesses testifying directly from their personal observation. Circumstantial evi-
dence relates to facts and circumstances from which the jury may infer other
or connected facts which usually and reasonably followed according to the
common experience of mankind.
§ 36 INSTRUCTIONS-RULES GOVERNING 26
"Circumstantial evidence may be properly considered by the jury. Its value
and weight are to be determined from its character and nature and from its
relation to all of the other facts which the jury finds to be otherwise established
by the other evidence in the case.
"If, upon consideration of the whole case, you are satisfied beyond a reason-
able doubt of the guilt of any defendant, it does not matter whether such
certainty has been produced by direct evidence or by circumstantial evidence.
The law makes no distinction between circumstantial and direct evidence in
the amount of proof required for conviction."69'1
The following instruction, on identification of defendant by an eye-witness
to a crime, was held proper and was held sufficient to enable jury to weigh the
evidence:
"You are the judges of the facts, the weight of the evidence and the credibility
of the witnesses. In determining such weight or credit you may consider: The
interest, if any, which the witness may have in the result of the trial; the
relation of the witness to the parties; the bias or prejudice, if any has been
apparent; the candor, fairness, intelligence and demeanor of the witness; the
ability of the witness to remember and relate past occurrences, and means of
observation, and opportunity of knowing the matters about which the witness
has testified. From all the facts and circumstances appearing in evidence and
coming to your observation during the trial, aided by the knowledge which you
each possess in common with other persons, you will reach your conclusions
7?
Therefore, it was not error to refuse the following requested instruction, by
the defendant, on the weight of identification testimony:
"Testimony tending to prove identity is to be scrutinized with extreme care,"
"No class of testimony is more uncertain and less to be relied upon than that
of identity."
"The possibility of human error or mistake in the probable likeness and
similarity of objects and persons are elements that you must act upon in
considering testimony passing upon the credibility that you attach to the wit-
ness' testimony, and you must be satisfied beyond a reasonable doubt as to the
accuracy of the witness identification in the absence of prior familiarity with
him is merely the expression of an opinion by a witness and is to be regarded
by the jury in the same light as any other opinion that may be expressed by
a witness."
"The identity of the defendant must be proven with that degree of moral
certainty that amounts to proof beyond a reasonable doubt so as to preclude the
probability of mistake having been made."
"Evidence of identity should be as certain as human recollection under the
most favorable circumstances will permit. The two greated (sic) constituents of
reliability of such testimony are familiar with the person in question, and
freedom from prejudice have been determined, it is the duty of the jury to
estimate the capacity of the witness for perception, observation, reflection,
memory and reasoning, as revealed by him upon the stand, Certainty of iden-
tification may indicate not strength, but weakness of power to identify and
weakness of the reliability of the witness,"
"The identity of the defendant as the culprit must be shown with such
certainty as to preclude any possibility of error. An opinion of the identity of
27 PROVINCE OF THE COURT AND THE JURY § 37
the defendant, particularly when it depends upon impressions, obtained in
haste and excitement, should be treated with utmost caution. If the jury finds
that the witness was honestly mistaken in his identification of the defendant,
then a reasonable doubt is created as to the guilt of the defendant, and he must
be acquitted." 72"1
S5-1 Washington. State v. Favro, 5 WashApp 311, 487 P2d 261 (1971).
311, 487 P2d 261 (1971). 72a Oklahoma. Roberts v. State, 620 P2d 425
69>1 Washington. State v. Favro, 5 WashApp (OklCnmApp 1980).
§ 37. Credibility of witnesses for jury.
Now, here is a flat conflict in the testimony ... on a material aspect of the
case, because if the plaintiff is telling the truth here, if in fact the doctor made
an admission of responsibility or a promise to pay bills, it would be evidence
of an admission of liability on his part, evidence that he had been negligent.
On the other hand, if you think that the plaintiff made up this story, that is,
if you believe the doctor's testimony that no such conversation occurred, then
you can . . . [weigh] all of the plaintiffs testimony in the light of that conduct.
You can consider the probability of whether such a conversation ever took
place.80'1
A jury is not bound in every case to accept the evidence of a witness as true,
although it is not contradicted by other direct evidence, when it is in conflict
with reasonable inferences that may be drawn from proven facts and circum-
stances.80"2
You are the sole judges of the credibility of the witnesses and of the weight
to be given to the testimony of each of them. In considering the testimony of
any witness, you may take into account his ability and opportunity to observe,
his memory, his manner while testifying, any interest, bias or prejudice he may
have, and the reasonableness of his testimony considered in the light of all the
evidence in the case,80 3
Although it is improper for counsel to comment on the credibility of a witness
from personal knowledge or from evidence not on the record, it is within the
sound discretion of the trial judge to determine whether the comments were so
prejudicial as to require a mistrial or whether the prejudice would be cured by
a cautionary instruction to the jury to disregard the comment or statement.
However, if the statement is a flagrant one, it requires a mistrial.80"4
Whenever there is evidence presented by both the plaintiff and the defendant
that each was in his or her own lane of traffic, then the plaintiff does not
establish a prima facie case of negligence by showing either that the defen-
dant's vehicle skidded on ice or by presenting testimony to the effect that the
defendant had crossed the center of the roadway. Thus the trial court properly
refused the following charge requested by the plaintiff:
"If you find that Miss Michael violated her duty to drive on the right-hand
side of the street as far as possible to the right-hand edge or curb, and that this
violation was due to her skidding on ice, you are instructed that being on the
wrong side of the street is negligence and that Miss Michael bears the burden
of proof to show that she was not to blame."
Whenever there is conflicting testimony, it is exclusively the province of the
jury to decide which of the parties' conflicting testimony is entitled to more
§ 37 INSTRUCTIONS- -RULER CK)VKKN1N(} 28
credibility. Therefore, the plaintiff is entitled to an instruction that- if" it
believed the plaintiffs testimony that the defendant was on the* wrong side of
the road then the burden was on the defendant to prove that he/she* was not
negligent by being there. Contrawise, the defendant was entitled to an instruc-
tion that if it believed the defendant's testimony, then the burden was on the
plaintiff to prove that the plaintiff was not negligent by being on the wrong side
of the road.80'5
If you find that any witness stated falsely any material fact in the case* you
are at liberty to disregard the whole of his testimony if you want to. Whatever
you decide of course must be based upon what you have found out in the Court
Room and on your view of the premises. You are entitled to consider everything
that you observed while on the view in your decision.7'1
The trial court charged the jury that if they found the defendant guilty of
murder: "The form of your verdict would be, we, the jury, find the defendant
guilty, and you would have two things that you could do, You must go further
in either case. If you decide the defendant should die, you would say, 'We, the
jury, find the defendant guilty and fix his punishment at death,1 or, if, for no
reason at all but simply because you wish to, you could do otherwise and nay,
(We, the jury, find the defendant guilty and fix his punishment at life imprison-
ment.' " 7-2
Evidence has been introduced in this case that at some other time certain
witnesses may have said or done something, or may have failed to say or do
something, which is consistent with, or inconsistent with, their testimony at
the trial. This evidence is to be considered by you only for the purpose of
determining the credibility of those witnesses and the weight to be given their
testimony and is not to be considered by you for any other purpose.
You are the sole judges of the credibility of the witnesses and of what weight
is to be given to the testimony of each. In determining what credit is to be givers
any witness, you may take into account his ability and opportunity to observe,
his memory, his manner and appearance while testifying, any interest, bias or
prejudice he may have, and the reasonableness of his testimony considered in
the light of all the evidence, and any other factors that bear on believability
and weight,7"3
Where, as in this case, the defendant takes the witness stand, it is your duty
to treat his testimony fairly and weigh it carefully just as you do the testimony
of other witnesses in the case, remembering, however, that he is the defendant
in the case and that he has an interest in the outcome of the case. And where
there is testimony that a defendant has been involved in prior criminal con-
victions, this testimony is admitted only for the purpose of determining what
weight or credibility you will give to the testimony of the defendant because,
as you can see it has no possible tendency to connect it up with this case. It only
goes to the weight and credibility which you will give to the testimony of the
defendant in the case.
It is also the function of the jury to determine what weight or credibility you
will attach to the testimony of each of the witnesses, taking into consideration
the opportunity that the witness has had to know the facts about which he or
she seeks to testify here upon the stand, taking into consideration the
demeanor of the witness on the stand, the reasonableness of the story that is
29 PROVINCE OF THE COURT AND THE JURY § 37
told; whether the story is conflicting with other testimony that the same wit-
ness has given, or other testimony in the case that you believe to be true, and
whether it is corroborated by other testimony that you believe to be true in the
case.7'4
Now, inconsistencies or discrepancies in the testimony of a witness or be-
tween the testimony of witnesses may or may not cause you as Jurors to
discredit such testimony. Two or more persons witnessing an incident or
transaction may see it or may hear it differently. And among all of us, an
innocent rnisrecollection, like a failure of recollection, is not an uncommon
experience. In weighing the effect of a discrepancy, consider whether it per-
tains to a matter of importance or an unimportant detail. And whether the
discrepancy results from innocent error or willful falsehood. You will give the
testimony of each witness such weight as to credibility as you may think it
deserves.7-'^
As a general proposition, the trial court has discretion in charging the jury,
and the instructions will be held proper and non-prejudicial so long as that,
considering them in their entirety, they accurately, properly, and fairly state
the law as applied to the facts in the case. This discretion extends to refusal of
requests and to cautionary instructions as well. For example, when testimony
was offered against the defendant by an accomplice that had turned State's
evidence, it was held propei and not prejudicial error for the court to refuse to
give the following standardized jury instruction on accomplices:
"An accomplice witness is one who testifies that he was involved in the
commission of the crime with which the defendant is charged. You should
consider with caution testimony of an accomplice if it is not supported by other
evidence.," [Emphasis supplied!
and instead to give the following instruction relating to the credibility of
witnesses in general and not specifically mentioning the need to corroborate
accomplice testimony:
"It is for you to determine the weight and credit to be given the testimony
of each witness. You have a right to use that knowledge and experience which
you possess in common with men in general, in regard to the matter about
which a witness has testified. You may take into account his ability and
opportunity to observe and know the things about which he or she has testified,
his memory, manner, and conduct while testifying, any interest he may have
in the result of this trial, and the reasonableness of his testimony considered
in the light of all the evidence in this case.
"If you find that any witness has willfully testified falsely concerning any
material matter, you have a right to distrust the testimony of that witness in
other matters, and you may reject all or part of the testimony of that witness,
or you may give it such weight as you think it deserves. You should not reject
any testimony without cause."7'6
When an instruction, which deals with the credibility of an impeached wit-
ness by a prior inconsistent statement, tells the jury the purpose for which
certain evidence may be considered and limits the jury's consideration of the
evidence for such limited purposes, it is not an improper comment on the
evidence. Thus, the following instruction was held proper:
"If you find and believe from the evidence that on some former occasion a
witness made a statement inconsistent with his testimony in this case, you
§ 37 INSTRUCTIONS—RULES GOVERNING 30
may consider such evidence for the purpose of deciding the believability of the
witness and the weight to be given to his testimony. However, in deciding the
guilt or innocence of the defendant, any prior statement of the witness, other
than the defendant, must not be considered by you as evidence of the matters
contained in the statement except as to those matters admitted by the witness
to be true during his testimony in the case." 7'7
Utah Code Annotated, § 77-31-18 (1979 & Supp. 1981), expressly permits
giving a cautionary instruction whenever the prosecution relies on the
uncorroborated testimony of an accomplice:
"Conviction on uncorroborated testimony of accomplice — Cautionary
instruction, — (1) A conviction may be had on the uncorroborated testimony
of an accomplice.
"(2) In the discretion of the court, an instruction to the jury may be given to
the effect that such uncorroborated testimony should be viewed with caution,
and such an instruction should be given if the trial judge finds the testimony
of the accomplice to be self contradictory, uncertain, or improbable." 7lH
As a general rule, although an instruction by a trial court judge must not
deny the jury the right to- consider any proper evidence presented to them by
way of testimony, in instructing the jury the judge may, nevertheless, autho-
rize them, when considering the testimony of witnesses, to take into account
the interest of a witness. For example, the following cautionary instruction aB
to the care to be exercised in weighing the testimony of a witness has been held
proper;
"In weighing the credibility of a witness who is a member of defendant's
family, or a friend or associate of the defendant, you should scrutinize his or
her testimony with particular care,"
Likewise, a trial court in a criminal case may, in the exercise of its discretion,
make comment on the evidence presented to the jury, including the credibility
of witnesses with prior felony convictions, interests, or those who had given
prior inconsistent statements. For example, the following instruction was held
proper:
"The state has the right to show any bias or interest toward the defendant
on the part of witnesses for the defense, The evidence elicited from these
witnesses, by cross-examination, concerning the nature of their relationship
with the defendant, indicated long-term friendships with such witnesses as Mr.
Torres and Mr. Leary, and their obvious common interest and values. This is
relevant evidence which had a direct bearing on the credibility of these wit-
nesses."
Later the court also instructed:
*Tn this matter of credibility, for example, you may consider the testimony
of Mr. Turcio, Sr,, in which he conceded, during cross-examination, to having
given prior erroneous, inconsistent testimony, at a pretrial hearing, I instruct
you that it is all proper for you, as jurors, to determine credibility upon these
terms,
"You will recall again, in determining fact from evidence offered to you in
court, that it was disclosed that the witnesses, Mr. Turcio, Sr., and Mr, David
Leary, had been convicted of a serious crime. A witness is not disqualified
because of his conviction of crime; but such conviction may be shown for the
purpose of affecting his credibility."
31 PROVINCE OF THE COURT AND THE JURY § 37A
In addition, a charge to the jury that is well-balanced and delivered with
particular care and patience by the court will rarely be found reversible error.
For example, the following instruction on the credibility of witnesses is a
laudatory one:
"In weighing the testimony of a witness, you should consider his appearance
on the stand; you should try to size him up; you should have in mind all those
little circumstances which point to his truthfulness or untruthfulness; you
should consider any possible bias or prejudice he may have, whether for or
against the state or the accused; his interest or lack of interest, of whatever
sort, in the outcome of the trial . . . you should test the evidence he gives you
by your own knowledge of human nature, and of the motives which influence
and control human beings." u A
Under proper instructions, the jury judges the weight and credibility of the
testimony.18'1
. . . [S]hould you find that a witness has testified wilfully, falsely and inten-
tionally to a material fact in the case, then the law says that as to that witness
you may disregard entirely that testimony. It is within your discretion. You
may do so. It is for you to say.182
wu Massachusetts. Barrette v. Hight, 253 7A Michigan. People v. Nash, 61 MichApp
Mass 268, 230 NE2d 808 (1967). 708, 233 NW2d 153 (1975).
8(K2 Georgia. Seaboard Coast Line R, Co. v. 7Ji Michigan. People v. Bradley, 62 MichApp
Clark, 122 GaApp 237, 176 SE2d 596 (1970), 39, 233 NW2d 177 (1975),
H0-3 Illinois, People v. Heard, 48 I112d 356, ™ Kansas. State v. Ferguson, 228 Kan 522,
270 NE2d 18 (1971). 618 P2d 1186 (1980).
m'4 Delaware. Joseph v. Monroe, 419 A2d 7-7 Missouri. State v. Davis, 608 SW2d 437
927 (Del 1980). (MoApp 1981).
80-5 Pennsylvania. Kuhn v. Michael, 423 ™ Utah. Utah v. Hallett, 619 P2d 335 (Utah
A2d 735 (PaSuper 1980). 1980).
7J Pennsylvania. Lobozzo v. Adam n>l Connecticut. State v. Turcio, 422 A2d
Eidemiller, Inc., 437 Pa 360, 263 A2d 432 749 (Conn 1980).
( 1970). iai Idaho. State v. Bassett, 86 Idaho 277, 385
7-2 Georgia. Pass v. State, 227 Ga 730, 182 P2d 246 (1963).
SE2d 779 (1971 ). 18'2 Alabama. Buckelew v State, 48 AlaApp
7-3 Washington. State v. Morgison, 5 411, 265 S2d 195 (1972).
WashApp 248, 486 P2d 1115 (1971).
§ 37A. Witnesses — Criteria for credibility.
... In determining whether a witness is to be excluded because of a lack of
testimonial qualification three processes are involved: First, it must be deter-
mined whether the witness has observed the incident about which he proposes
to testify and has received some impressions which he seeks to relate in court;
second, whether the witness has a recollection of those impressions resulting
from his observation which fairly corresponds with or reproduces the original
knowledge or observation; and third, whether he is able to communicate this
recollection to the tribunal. In the absence of any one of these elements the
witness's testimony cannot be believed.18'3
Although it is improper for counsel to comment on the credibility of a witness
from personal knowledge or from evidence not on the record, it is within the
sound discretion of the trial judge to determine whether the comments were so
prejudicial as to require a mistrial or whether the prejudice would be cured by
a cautionary instruction to the jury to disregard the comment or statement.
However, if the statement is a flagrant one, it requires a mistrial18-4
§ 38 INSTRU(1TIONI^.»RULKSCK)VKRNIN<} 32
la:*Iowa. Local Board of Health, Boom* IH-4 Delaware. Joseph v. Monroe*, .119 A2d
County v. Wood, -la—, 243 NW2d 862 (1970). 927 (Del 1980),
§ 38. Credibility of witnesses — Corroborating or contradictory evi-
dence.
. . . ll]t is essentially the duty of a jury to determine whether or not the
testimony of one witness corroborates that of another/5'1
The Court instructs the jury that there can be no judgment against the estate
of a person now deceased which is based upon the uncorroborated testimony of"
the adverse party.
If you find from a preponderance of all the evidence that Mr. W.'s testimony
is not corroborated, then your verdict must be in favor of the defendant.
Corroborating evidence is defined as evidence supplementary to that already
given which tends to strengthen or confirm it; it is additional evidence of a
different character to the same point.32 l
When a prior inconsistent statement is introduced to impeach a witness, the
court, upon request, must instruct the jury that it can consider such evidence
for the purpose of impeachment only, not as substantive evidence of the facts.
Failure to do so, as here, is reversible error.32 2
Instructions that specific denials by defendant (exculpatory statements)
which are later proved untrue could be considered evidence of defendant's
consciousness of guilt is not error and has long been accepted by the court. The
trial judge's explanation to the jury that an expert can receive the necessary
training and experience in a number of different ways, including everyday
experiences, was also held to be proper.32"3
A proper instruction on witness immunity should explain the type of immun-
ity granted. In this case, assuming immunity had been granted, there was no
error because the instruction given was more favorable to the defendant than
a correct instruction would have been.
An instruction concerning the use of prior inconsistent statement to impeach
a witness must tell the jury that it is free to disregard all or any part of the
witness' testimony.32-4
as-1 North Carolina. State v. Dixon, 8 32-3 Federal. United State* v. McDougald,
NCApp 37, 173 SE2d 540 (1970). 650 F2d 532 (4th Cir. 1981).
321 Virginia. Whitmer v. Marcum, 214 Va 32"4 Maine. State v. McEachern, 431 A2d 39
64, 196 SE2d 907 (1973). (Me 1981).
32-2 South Carolina. State v. Warren, 284
SE2d 355 (SC 1981).
§ 39. Credibility of witnesses — Demeanor and character of witnesses.
You are the sole judges of the credibility of the witnesses and of the weight
to be given to the testimony of each of them, In considering the testimony of
any witness, you may take into account his ability and opportunity to observe,
his memory, his manner while testifying, any interest, bias or prejudice he may
have, and the reasonableness of his testimony considered in the light of ail the
evidence in the case.34'1
You are the sole judges of the credibility of all the witnesses who have
testified in this case, and of the weight to be given to their testimony. A witness
is presumed to speak the truth; but this presumption may be repelled by the
33 PROVINCE OF THE COURT AND THE JURY § 40
manner in which he testifies, by the nature of his testimony or by the evidence
affecting his character for truth, honesty or integrity or his motives, or by
contradictory evidence; and in determining the weight to be given to the testi-
mony of any witness, you have the right to consider the appearance of each
witness on the stand, his manner of testifying, his apparent candor or lack of
candor, his apparent fairness or lack of fairness, his apparent intelligence or
lack of intelligence, his knowledge and means of knowledge on the subject upon
which he testifies, together with all the other circumstances appearing in
evidence on the trial.34 2
34*> Illinois. People v. Heard, 48 II12d 356, a4*2 Montana. State v. Hart, 625 P2d 21
270 NE2d 18 (1971). (Mont 1981).
§ 40, Credibility of witnesses — Interested witnesses.
Where, as in this case, the defendant takes the witness stand, it is your duty
to treat his testimony fairly and weigh it carefully just as you do the testimony
of other witnesses in the case, remembering, however, that he is the defendant
in the case and that he has an interest in the outcome of the case. And where
there is testimony that a defendant has been involved in prior criminal con-
victions, this testimony is admitted only for the purpose of determining what
weight or credibility you will give to the testimony of the defendant because,
as you can see it has no possible tendency to connect it up with this case. It only
goes to the weight and credibility which you will give to the testimony of the
defendant in the case.
It is also the function of the jury to determine what weight or credibility you
will attach to the testimony of each of the witnesses, taking into consideration
the opportunity that the witness has had to know the facts about which he or
she seeks to testify here upon the stand, taking into consideration the
demeanor of the witness on the stand, the reasonableness of the story that is
told; whether the story is conflicting with other testimony that the same wit-
ness has given, or other testimony in the case that you believe to be true, and
whether it is corroborated by other testimony that you believe to be true in the
case.46'1
Evidence has been introduced in this case that at some other time certain
witnesses may have said or done something, or may have failed to say or do
something, which is consistent with, or inconsistent with, their testimony at
the trial. This evidence is to be considered by you only for the purpose of
determining the credibility of those witnesses and the weight to be given their
testimony and is not to be considered by you for any other purpose.
You are the sole judges of the credibility of the witnesses and of what weight
is to be given to the testimony of each. In determining what credit is to be given
any witness, you may take into account his ability and opportunity to observe,
his memory, his manner and appearance while testifying, any interest, bias or
prejudice he may have, and the reasonableness of his testimony considered in
the light of all the evidence, and any other factors that bear on believability
and weight.50-1
Paid police informants are a special class of witnesses, and in a trial of
defendant for aggravated robbery it was held proper for the court to give the
§ 40 INSTRUCTIONS— RULES GOVERNING 34
jury a general instruction OB witness credibility when testimony of paid police
informants was given.52'1
As a general rule, although an instruction by a trial court judge must not
deny the jury the right to consider any proper evidence presented to them by
way of testimony, in instructing the jury the judge may, nevertheless, autho-
rize them, when considering the testimony of witnesses, to take into account
the interest of a witness, For example, the following cautionary instruction as
to the care to be exercised in weighing the testimony of a witness has been held
proper:
"In weighing the credibility of a witness who is a member of defendant's
family, or a friend or associate of the defendant, you should scrutinize his or
her testimony with particular care."
Likewise, a trial court in a criminal case may, in the exercise of its discretion,
make comment on the evidence presented to the jury, including the credibility
of witnesses with prior felony convictions, interests, or those who had given
prior inconsistent statements. For example, the following instruction was held
proper:
"The state has the right to show any bias or interest toward the defendant
on the part of witnesses for the defense. The evidence elicited from these
witnesses, by cross-examination, concerning the nature of their relationship
with the defendant, indicated long-term friendships with such witnesses as Mr,
Torres and Mr. Leary, and their obvious common interest and values. This is
relevant evidence which had a direct bearing on the credibility of these wit-
nesses."
Later the court also instructed:
"In this matter of credibility, for example, you may consider the testimony
of Mr, Turcio, Sr., in which he conceded, during cross-examination, to having
given prior erroneous, inconsistent testimony, at a pretrial hearing. I instruct
you that it is all proper for you, as jurors, to determine credibility upon these
terms.
"You will recall again, in determining fact from evidence offered to you in
court, that it was disclosed that the witnesses, Mr, Turcio, Sr., and Mr. David
Leary, had been* convicted of a serious crime. A witness is not disqualified
because of his conviction of crime; but such conviction may be shown for the
purpose, of affecting his credibility."
In addition, a charge to the jury that is well-balanced and delivered with
particular care and patience by the court will rarely be found reversible error.
For example, the following instruction on the credibility of witnesses is a
laudatory one:
"In weighing the testimony of a witness, you should consider his appearance
on the stand; you should try to size him up; you should have in mind all those
little circumstances which point to his truthfulness or untruthfulness; you
should consider any possible bias or prejudice he may have, whether for or
against the state or the accused; his interest or lack of interest, of whatever
sort, in the outcome of the trial . . . you should test the evidence he gives you
by your own knowledge of human nature, and of the motives which influence
and control human beings."52'2
An accomplice testifying for the prosecution is generally regarded as an
interested witness, and a defendant, upon timely request, is entitled to an
35 PROVINCE OF THE COURT AND THE JURY § 40A
instruction that the testimony of the accomplice should be carefully
scrutinized. Since an instruction to carefully scrutinize an accomplice's testi-
mony is a subordinate feature of the trial, the trial judge is not required to so
charge in the absence of a timely request for the instruction. But when a
defendant makes a request in writing and before argument to the jury for an
instruction on accomplice testimony, the court should give such instruction.
And once the judge undertakes to instruct the jury on such subordinate issue
it must do so accurately and completely. The court, however, is not required to
give the requested instruction in the exact language of the request, but is only
required to give such instruction in substance.
In present case, concerning Clark, the trial judge instructed the jury:
"Now, as to the witness Clark, I instruct you that he is in Law what is known
as an accomplice. And our Court has said that a person may be convicted on
the unsupported testimony of an accomplice, if that testimony is believed by
the Jury. However, in considering the weight and credibility you will give to
the testimony of Clark, I instruct you that you should carefully examine his
testimony for the purpose of determining what weight and credibility it
deserves. You should scrutinize it with care, all to the end that you will deter-
mine- whether he is truthful or not, because in Law, an accomplice does have
an interest and bias in the case and in what your verdict will be.
"So, Members of the Jury, it's dangerous to convict upon the testimony of an
accomplice but if you find that he is truthful, then you may, if you are satisfied
from the evidence and beyond a reasonable doubt, convict upon his
unsupported testimony." 53<1
. . . "The fact that an accomplice hopes for or expects mitigation of his own
punishment does not disqualify him from testifying." Promises of assistance
may affect the credibility of the witness; they do not render the witness incom-
petent.53"2
The following instruction, pertaining to the testimony of an immunized
witness, was held proper:
"Certainly you have heard the testimony in this case of those who were
alleged to be accomplices, those who have been granted immunity, those who
have some privilege or interest. These witnesses are competent to testify, but
you should again accept their testimony with caution and evaluate it carefully
in determining whether or not their interest or their involvement is sufficient
or do [sic] in someway [sic] color their testimony." 53>3
4<u Michigan. People v. Nash, 61 MichApp 55Ll North Carolina. State v. Abernathy, 295
708, 233 NW2d 153 (1975). NC 244, 244 SE2d 373 (1978).
50a Washington. State v. Morgison, 5 53-2 North Carolina. State v. Edwards, 37
WashApp 248, 486 P2d 1115 (1971). NCApp 47, 245 SE2d 527 (1978).
52<1 Colorado. People v. Kelderman, 618 P2d 53-3 Maine. State v. Troiano, 421 A2d 41 (Me
723 (ColoApp 1980). 1980).
S2-2 Connecticut. State v. Turcio, 422 A2d
749 (Conn 1980).
§ 40A. "Directly interested" witness — Pecuniary interest in judg-
ment.
In order to disqualify a witness as one "directly interested in the action," the
interest in the judgment must be such that a pecuniary gain or loss will come
to the witness directly as the immediate result of the judgment. The interest
of the witness must be direct, certain and pecuniary.53-4
§ 41 INSTRUCTIONS -BULKS GOVKHNINU 36
5JU Illinois. Michalski v. Chicago Title &
TruHt Co., - IIS — , 365 NK2d 654 (1977).
§ 41. Credibility of witnesses In criminal cases,
The court instructs the jury that the testimony of parties aiding, assisting,
encouraging, and abetting the crime is admissible; yet their evidence when not
corroborated by the testimony of others not implicated in the crime, as to
matters material to the issue, should be received with great oa ut ion by the jury,
and they should be fully satisfied of its truth before they should convict the
defendant on such testimony.57 1
A trial court judge properly refused to give the following cautionary instruc-
tion because it constituted an improper comment by the court on the evidence
and usurped the function of the jury:
"An accomplice is a person who helped commit a crime, or advised or encour-
aged a person to commit a crime. You must determine whether any witness in
this case is an accomplice.
"The evidence of an accomplice should be received with gnwt caution"
"Tiie testimony of an accomplice ought to be viewed with <U$tnint. This does
not mean that you may arbitrarily disregard such testimony, but you should
give to it the weight to which you find it to be entitled after examining it, with
care and caution and in the light of all the evidence in the case,11 5Y>"
Utah Code Annotated, § 77-31-18 (1979 & Supp. 1981), expressly permits
giving a cautionary instruction whenever the prosecution relies on the
uncorroborated testimony of an accomplice:
"Conviction on uncorroborated testimony of accomplice ••• Cautionary
instruction. — (1) A conviction may be had on the uncorroborated testimony
of an accomplice.
"(2) In the discretion of the court, an instruction to the? jury may be given to
the effect that such uncorroborated testimony should be viewed with caution,
and such an instruction should be given if the trial judge finds the testimony
of the accomplice to be self contradictory, uncertain, or improbable," 57>a
Competency to give testimony depends largely on intelligence and
understanding rather than on attaining a certain age. But it is common knowl-
edge that a child of tender years usually does not have the same powers of
comprehension and understanding nor the same ability to observe, remember
and tell what he or she has seen or heard as an older child or person. In a child
of tender years the strength and use of the imagination is frequently out of
proportion to the power of the other faculties, and young children may say what
is not true not from deceitfulness but simply because they have come to think
or believe so by talking or from suggestion or from imagining what has
happened. So in determining what if any credit you shall give to the testimony
of these children, you should give consideration to all of these matters and
should consider their testimony with caution and should weigh it in the light
of their tender age, mental capacity, lack of experience, and immaturity. You
should guard against being influenced by sympathy for these children of tender
age who were called upon to testify.58-1
When an instruction, which deals with the credibility of an impeached wit-
ness by a prior inconsistent statement, tells the jury the purpose for which
certain evidence may be considered and limits the jury's consideration of the
37 PROVINCE OF THE COURT AND THE JURY § 41
evidence for such limited purposes, it is not an improper comment on the
evidence. Thus, the following instruction was held proper:
"If you find and believe from the evidence that on some former occasion a
witness made a statement inconsistent with his testimony in this case, you
may consider such evidence for the purpose of deciding the believability of the
witness and the weight to be given to his testimony. However, in deciding the
guilt or innocence of the defendant, any prior statement of the witness, other
than the defendant, must not be considered by you as evidence of the matters
contained in the statement except as to those matters admitted by the witness
to be true during his testimony in the case." 64 l
You are the sole judges of the credibility of the witnesses and of the weight
to be given to the testimony of each of them. In considering the testimony of
any witness, you may take into account his ability and opportunity to observe,
his memory, his manner while testifying, any interest, bias or prejudice he may
have, and the reasonableness of his testimony considered in the light of all the
evidence in the case.74 !
Paid police informants are a special class of witnesses, and in a trial of
defendant for aggravated robbery it was held proper for the court to give the
jury a general instruction on witness credibility when testimony of paid police
informants was given.74'2
As a general rule, although an instruction by a trial court judge must not
deny the jury the right to consider any proper evidence presented to them by
way of testimony, in instructing the jury the judge may, nevertheless, autho-
rize them, when considering the testimony of witnesses, to take into account
the interest of a witness. For example, the following cautionary instruction as
to the care to be exercised in weighing the testimony of a witness has been held
proper:
"In weighing the credibility of a witness who is a member of defendant's
family, or a friend or associate of the defendant, you should scrutinize his or
her testimony with particular care."
Likewise, a trial court in a criminal case may, in the exercise of its discretion,
make comment on the evidence presented to the jury, including the credibility
of witnesses with prior felony convictions, interests, or those who had given
prior inconsistent statements. For example, the following instruction was held
proper:
"The state has the right to show any bias or interest toward the defendant
on the part of witnesses for the defense. The evidence elicited from these
witnesses, by cross-examination, concerning the nature of their relationship
with the defendant, indicated long-term friendships with such witnesses as Mr.
Torres and Mr. Leary, and their obvious common interest and values. This is
relevant evidence which had a direct bearing on the credibility of these wit-
nesses,"
Later the court also instructed:
"In this matter of credibility, for example, you may consider the testimony
of Mr. Turcio, Sr., in which he conceded, during cross-examination, to having
given prior erroneous, inconsistent testimony, at a pretrial hearing, I instruct
you that it is all proper for you, as jurors, to determine credibility upon these
terms.
§ 41 INSTRUCTIONS-RULES GOVERNING 38
"You will recall again, in determining fact from evidence offered to you in
court, that it was disclosed that the witnesses, Mr. Turcio, Br., and Mr. David
Leary, had been convicted of a serious crime, A witness is not disqualified
because of his conviction of crime; but such conviction may be* shown for the
purpose of affecting his credibility."
In addition, a charge to the jury that is well-balanced and delivered with
particular care and patience by the court will rarely be found reversible error.
For example, the following instruction on the credibility of witnesses is a
laudatory one:
"In weighing the testimony of a witness, you should consider his appearance
on the stand; you should try to size him up; you should have in mind all those
little circumstances which point to his truthfulness or untruth fulness; you
should consider any possible bias or prejudice he may have, whether for or
against the state or the accused; his interest or lack of interest, of whatever
sort, in the outcome of the trial . . . you should test the evidence he gives you
by your own knowledge of human nature, and of the motives which influence
and control human beings." 74<3
. . . [S]hould you find that a witness has testified wilfully, falsely and inten-
tionally to a material fact in the case, then the law says that as to that witness
you may disregard entirely that testimony. It is within your discretion. You
may do so. It is for you to say.76'1
The defendant has set up an alibi as a defense in this case, An alibi as a
defense invokes the impossibility of the prisoner's presence at the seem* of the
offense at the time of its commission, and the range of the evidence in respect
to time and place must be such as reasonably to exclude the possibility of
presence. You would consider the question of alibi along with all the other
evidence, and if a reasonable doubt be raised by the evidence as a whole, the
doubt must be given in favor of innocence,
Gentlemen, I charge you that a witness may be impeached by contradictory
statements previously made by him or her as to matters relevant to his or her
testimony and to the case. A witness may be impeached by disproving the facts
testified to by him or her. When a witness shall be successfully contradicted as
to a material matter, his or her credit as to other matters shall be for the jury,
but if a witness shall swear wilfully and knowingly falsely, his other testimony
shall be disregarded entirely unless corroborated by circumstances or other
unimpeached evidence. The credit of a witness is a matter to be determined by
the jury under proper instructions of the court.
Gentlemen, if you believe the contentions of the defendant, that is, that he
was not at this place, that he had nothing to do with the killing of the Bs,, he
got the rings from someone else, he had nothing to do with the killing, if you
believe his alibi that it was not possible for him to be there, it would be your
duty to acquit.76-2
An accomplice testifying for the prosecution is generally regarded as an
interested witness, and a defendant, upon timely request, is entitled to an
instruction that the testimony of the accomplice should be carefully
scrutinized. Since an instruction to carefully scrutinize an accomplice's testi-
mony is a subordinate feature of the trial, the trial judge is not required to so
charge in the absence of a timely request for the instruction. But when a
defendant makes a request in writing and before argument to the jury for an
39 PROVINCE OF THE COURT AND THE JURY § 41
instruction on accomplice testimony, the court should give such instruction.
And once the judge undertakes to instruct the jury on such subordinate issue
it must do so accurately and completely. The court, however, is not required to
give the requested instruction in the exact language of the request, but is only
required to give such instruction in substance.
In present case, concerning Clark, the trial judge instructed the jury:
"Now, as to the witness Clark, I instruct you that he is in Law what is known
as an accomplice. And our Court has said that a person may be convicted on
the unsupported testimony of an accomplice, if that testimony is believed by
the Jury. However, in considering the weight and credibility you will give to
the testimony of Clark, I instruct you that you should carefully examine his
testimony for the purpose of determining what weight and credibility it
deserves. You should scrutinize it with care, all to the end that you will deter-
mine whether he is truthful or not, because in Law, an accomplice does have
an interest and bias in the case and in what your verdict will be.
"So, Members of the Jury, it's dangerous to convict upon the testimony of an
accomplice but if you find that he is truthful, then you may, if you are satisfied
from the evidence and beyond a reasonable doubt, convict upon his
unsupported testimony."76'3
. . . "The fact that an accomplice hopes for or expects mitigation of his own
punishment does not disqualify him from testifying," Promises of assistance
may affect the credibility of the witness; they do not render the witness incom-
petent76'4
As a general proposition, the trial court has discretion in charging the jury,
and the instructions will be held proper and non-prejudicial so long as that,
considering them in their entirety, they accurately, properly, and fairly state
the law as applied to the facts in the case. This discretion extends to refusal of
requests and to cautionary instructions as well. For example, when testimony
was offered against the defendant by an accomplice that had turned State's
evidence, it was held proper and not prejudicial error for the court to refuse to
give the following standardized jury instruction on accomplices:
"An accomplice witness is one who testifies that he was involved in the
commission of the crime with which the defendant is charged. You should
consider with caution testimony of an accomplice if it is not supported by other
evidence" [emphasis supplied] and instead to give the following instruction
relating to the credibility of witnesses in general and not specifically men-
tioning the need to corroborate accomplice testimony:
"It is for you to determine the weight and credit to be given the testimony
of each witness. You have a right to use that knowledge and experience which
you possess in common with men in general, in regard to the matter about
which a witness has testified. You may take into account his ability and
opportunity to observe and know the things about which he or she has testified,
his memory, manner, and conduct while testifying, any interest he may have
in the result of this trial, and the reasonableness of his testimony considered
in the light of all the evidence in this case,
"If you find that any witness has willfully testified falsely concerning any
material matter, you have a right to distrust the testimony of that witness in
other matters, and you may reject all or part of the testimony of that witness,
or you may give it such weight as you think it deserves. You should not reject
any testimony without cause." m5
§ 42 INSTRUCTIONS-RULES GOVERNING 40
"If any witness testifying has been impeached, then the jury may disregard
his testimony, unless his testimony is corroborated by the testimony [which is]
not so impeached." 76 6
The refusal by the trial judge to give the following instruction offered by the
defendant on accomplice credibility was not error if the correct general
credibility instruction and the instruction about weighing evidence were given.
An accomplice who turns State's evidence and agrees to cooperate with the
State in consideration of leniency or the dismissal of charges, to be realistic, is
being bribed regardless of the fact that public policy has proved such action in
the interest of effective law enforcement and, therefore, such accomplice's
testimony, though not necessarily false, is highly suspect. Such testimony by
an accomplice should be highly scrutinized by the jury.
The appellate court, in noting that the wording of the above instruction was
similar to language used by the appellate court in another decision, stated:
"The mere fact that certain language or expression are used in the opinions of
this Court to reach its final conclusion does not make it proper language for
instructions to a jury." 77 1
efftl Kansas. State v. McLaughlm, 207 Kan 76>1 Alabama. Buckelew v. State, 48 AlaApp
584, 485 P2d 1352 (1971). 411, 265 S2d 195 (1972).
57-2 Arizona. State v. Bussdieker, 621 P2d 26 76'2 Georgia. Pass v. State, 227 Ga 730, 182
(Ariz 1980). SE2d 779 (1971).
57-3 Utah. Utah v. Hallett, 619 P2d 335 (Utah 76-3 North Carolina. State v. Abernathy, 295
1980). NC 244, 244 SE2d 373 (1978).
58-1 South Dakota. State v. Klueber, 81 SD 7&A North Carolina, State v. Edwards, 37
223, 132 NW2d 847 (1965). NCApp 47, 245 SE2d 527 (1978).
**-1 Missouri. State v. Davis, 608 SW2d 437 76*5 Kansas. State v. Ferguson, 288 Kan 522,
(MoApp 1981). 618 P2d 1186 (1980).
74a Illinois. People v. Heard, 48 I112d 356, 76*6 Alabama. Stockord v. State, 391 S2d
270 NE2d 18 (1971). 1060 (Ala 1980).
74-2 Colorado. People v. Kelderman, 618 P2d 77'1 Indiana. Spence v. State, 429 NE2d 214
723 (ColoApp 1980). (Ind 1981).
74-3 Connecticut. State v. Turcio, 422 A2d
749 (Conn 1980).
§ 42. Cautionary instructions.
It was not reversible error for the court, upon discovering the presence of an
alternate juror during the beginning of deliberations, to caution the jury to
disregard any comments made by the alternate juror during the time that she
had been with the deliberating jury. Further, the jury was instructed "that you
should not be in any way influenced by her presence or anything that she might
have said or done while she's been out in the jury room with you as a juror after
you began your deliberations ... I will instruct you to return to the jury room
and continue your deliberations and entirely disregard and remove from your
minds insofar as humanly possible any actions, conduct, deliberations or any
part whatever that the alternate juror has played in your presence or in the
deliberation of the case up to this point, and you can return to the jury room
for your final deliberations in the case." 83>1
This court has previously held that there is no requirement of our law that
a trial judge warn the jury against the possible dangers of mistaken identifica-
tion of an accused as the person committing a crime.84'1
It is not improper and not reversible error for a trial court judge to comment
on the credibility of a witness when the charge to the jury, taken as a whole,
41 PROVINCE OF THE COURT AND THE JURY § 42
reveals no prejudice to the parties, and the jury is told that it was within its
sole province to resolve any issues of credibility. For example, it was not error
for the court to state in its charge to the jury that the court felt that the victim
"testified fairly and truthfully" because the court also stated that "[b]ut that's
for you to determine , . . [Y]ou may be impressed by it [but it's] for you to
determine." Prejudice cannot be based on reading isolated excerpts from the
charges which must be taken as a whole. 84 2
Although it is improper for counsel to comment on the credibility of a witness
from personal knowledge or from evidence not on the record, it is within the
sound discretion of the trial judge to determine whether the comments were so
prejudicial as to require a mistrial or whether the prejudice could be cured by
a cautionary instruction to the jury to disregard the comment or statement.
However, if the statement is a flagrant one, it requires a mistrial.84 3
It is not error for a trial court judge to refuse to give a cautionary instruction
as to the character of a witness where it is shown that the witness was not an
accomplice of the defendant, was fully cross-examined by the attorney for the
defendant, and the trial court judge gave a general instruction on the
credibility of witnesses and informed them that they had a duty to weigh the
testimony in light of the factors contained in the instruction.84-4
The court did not give a limiting instruction cautioning the jury not to
consider the evidence of the bribery as sufficient to convict the defendant of
sexual assault. The instruction would have been appropriate but since the
judge was not requested to give it there was no error.84'5
Appellant first contends that the trial court committed prejudicial error in
failing to instruct sua sponte that evidence of a defendant's non-tape recorded
admissions must be viewed with caution. The rule is firmly established that
such an instruction, when called for by the evidence, must be given, even
without a request therefor, ... An admission is "any statement by an accused
relative to the offense charged." 85 1
For example, during the defendant's trial for assault and battery and rape
the defendant assaulted the court reporter with a pair of scissors. At a later
trial for the dangerous assault charge against the reporter, the following testi-
mony was taken from a juror who was present at the previous trial:
"Q Do you recall where you were on that date in your juror duties, where you
were located in the court building?
"A Yes, I was in the fifth seat from the back row.
"Q Do you recall where that courtroom was?
"A Yes. It was on this wing on the far side.
"Q At that time in your juror duties, could you tell us what type of pro-
ceedings you were involved in?
"A There was a rape case, assault and battery."
The court properly ordered the testimony stricken from the record and
instructed the jury to disregard the juror's comment "with regard to what the
charges were on the crimes that were involved in the previous trial." 85"2
Ladies and gentlemen of the jury, you are instructed that you should not
consider as evidence any statement of counsel made during this trial, nor any
document upon the counsel table unless such statement was made as an
admission or stipulation conceding the existence of a fact or facts or such
document or documents have been introduced into evidence.87'1
§ 42 INSTRUCTIONS-RULES GOVERNING 42
It is reversible error for a trial court judge not to give a cautionary instruc-
tion when counsel was engaged in a "golden rule argument." 87 2
Although it is improper for counsel to comment on the credibility of a witness
from personal knowledge or from evidence not on the record, it is within the
sound discretion of the trial judge to determine whether the comments were so
prejudicial as to require a mistrial or whether the prejudice could be cured by
a cautionary instruction to the jury to disregard the comment or statement.
However, if the statement is a flagrant one, it requires a mistrial.87 3
Now, there is some danger inherent in a layman's consideration of a pre-
sumption. The existence of a presumption does not relieve the Commonwealth
of its primary duty of proving the defendant's guilt, in all grades and degrees
of the crime and in respect to each and every component element, including
malice, beyond a reasonable doubt. The presumption of malice does not arise
until the Commonwealth has made out a prima facie case of felonious homi-
cide, which is the killing of a human creature without justification or excuse
of any kind.88-1
The following has been held ineffective for its purpose:
Ladies and gentlemen of the jury, in answer to a question the witness made
a voluntary statement with reference to what Mr. Brockett said, I want to
instruct you to bear in mind what I have already told you. There is no evidence
in the case of any insurance, none has been admitted, and you will not consider,
discuss, nor speculate whether or not any party is or is not protected in whole
or in part by insurance of any kind in this case, unless evidence of insurance
is admitted; and none has been admitted up to this time, therefore you will
please bear in mind not to consider this matter of insurance. It has nothing to
do with the case under the instructions I have given you.92 1
Although it is improper for counsel to comment on the credibility of a witness
from personal knowledge or from evidence not on the record, it is within the
sound discretion of the trial judge to determine whether the comments were so
prejudicial as to require a mistrial or whether the prejudice could be cured by
a cautionary instruction to the jury to disregard the comment or statement.
However, if the statement is a flagrant one, it requires a mistrial.92*2
Finally, defendant claims that the trial court should have, sua sponte,
instructed the jury to disregard the restraints. "In those instances when visible
restraints must be imposed the court shall instruct the jury sua sponte that
such restraints should have no bearing on the determination of the defendant's
guilt. However, when the restraints are concealed from the jury's view, this
instruction should not be given unless requested by defendant since it might
invite initial attention to the restraints and thus create prejudice which would
otherwise be avoided." 97 1
The defendant moved for a mistrial on the grounds that during a recess the
jurors saw the defendant while he was shackled in the hallway. When the
incident was called to the attention of the trial judge he had each of the jurors
brought before him individually and questioned them regarding what they
saw. Six of the jurors stated they did not see the defendant in the hallway and
five of the jurors stated they saw the defendant but noticed nothing unusual
about him. One of the jurors testified he saw the defendant handcuffed but he
considered that to be ordinary procedure. The trial judge instructed him to
assign no inference of guilt or fault to the defendant, to be governed by the
43 PROVINCE OF THE COURT AND THE JURY § 42
evidence as heard in the courtroom and to draw no inference adverse to the
defendant by virtue of the fact.
In view of the circumstances of this case and the cautionary instructions
given by the trial judge, we find no violation of the rule as set forth in Allen
v. State. . . 97-2
Under Connecticut law, Conn. Gen. Stats § 54-84(b) makes it mandatory
upon the trial court judge to charge the jury, unless requested otherwise by the
defendant, that they, as jurors, can draw no unfavorable inference against a
defendant who exercises his constitutional right not to take the stand and to
testify in his own behalf. The court has no discretionary power in this matter,
and it is reversible error if the trial court judge fails to caution the jury by
failing to give an unfavorable inference charge.97'3
Members of the Jury: since this Jury was selected, there has been a great
deal of publicity, and I must now determine if there is anything you have read,
seen or heard that would in your honest opinion prevent you from being a fair
and impartial juror to both parties. Both parties simply want to start even. If
you have an opinion on any matter material to this case that would require
evidence to remove said opinion, then you would not be a suitable juror. On the
other hand, if you can set aside anything you have heard and decide this case
now solely on the evidence you will hear in this court room, then you are a
suitable juror. Now, with that definition, are there any jurors in the box who
feel they would be unsuitable to sit as fair and impartial jurors to both parties?
(No response.) Likewise, are there any jurors who have been contacted by any
one regarding this case since the time of your selection? (No response.) THE
COURT: You may proceed." -1
The "Allen" charge is permissible in this circuit, under proper circumstances
as long as it makes clear to the jury that each member has a duty
conscientiously to adhere to his own honest opinion and it avoids creating the
impression that there is anything improper, questionable, or contrary to good
conscience for a juror to create a mistrial.5 1
The following instructions could not be condemned by the court since they
did not amount to an "Allen" charge:
"It is the duty of each juryman, while the jury is deliberating upon their
verdict, to give careful consideration to the views his fellow-jurymen may have
to present upon the testimony in the case. He should not shut his ears and
stubbornly stand upon the position he first takes, regardless of what may be
said by the other jurymen. It should be the object of all of you to arrive at a
common conclusion and to that end you should deliberate together with
calmness. It is your duty to arrive upon a verdict, if that is possible.
"You are instructed, however, that if any one of the jury after having con-
sidered all the evidence in this case, and after having consulted with his
fellow-jurymen, should entertain a reasonable doubt of the defendant's guilt,
then the jury cannot find the defendant guilty."
"I believe it is my duty to remind you that this trial has, as a matter of course,
been attended with large expense to the parties, and that you should make
every effort to agree. To aid you in the consideration in the case, I instruct you
that although the verdict to which a juror agrees must, of course, be his own
§ 42 INSTRUCTIONS—RULES GOVERNING 44
verdict, the result of his own convictions, and not a mere acquiescence in the
conclusion of his fellow jurors, yet in order to bring twelve minds to a
unanimous result, you must examine the question submitted to you with
candor and with a proper regard and deference to the opinions of each other.
You should consider that at some time the case must be decided; that you are
selected in the same manner and from the same source from which any future
jury must be selected; and there is no reason to suppose that this case will ever
be submitted to twelve men and women more intelligent, more impartial, or
more competent to decide it; or that more and clearer evidence will be produced
on the one side or the other, and with this in view, it is your duty to decide the
case, if you can conscientiously do so." 7 x
The so-called "Alien" charge (Allen v. United States, 174 U.S. 492) amounted
to nothing more than the obvious statement of the desirability of the jury's
agreeing if they could do so without surrendering any juror's conscientious
convictions, without violating their individual judgments and conscience; that
another jury would have no more information and be no more competent than
this jury; that jurors should not approach their deliberations with a closed
mind. This is not substantially different from the standard charge as to the
jury's duty to try to arrive at a verdict without sacrificing their conscientious
views and to approach their deliberations with an open mind.7 2
It is not necessary that the following be given in one instruction but may be
given in several so long as the jury is made aware and clearly advised that all
the law is not so embodied in one instruction and that they must be applied as
a whole to the evidence in the case.
"Not by these instructions, nor by any ruling made, or any act done, or word
said during the trial, intimated or meant to give any intimation or opinion as
to what the proof is or what it is not, or what the facts are or what are not facts
in the case, or what your verdict should be.
"You are the sole judges of the credibility of the witnesses and of the weight
and value of their testimony." 12>1
The giving of cautionary instruction is largely within the discretion of the
trial judge.14"1
It is within the judge's discretion whether to caution the jury that they
should decide regardless of defendant's race.14 2
"Now, in this particular case, the defendant did not take the stand. By doing
so, the court must charge you at this time that by not taking the stand and
testifying in this case, the accused has exercised his constitutional right
because, as I told you before, it is the burden of the state to prove him guilty
beyond a reasonable doubt. He does not have to prove that he did not commit
this offense with which he stands charged." 14-3
The law of this state provides that a witness may be interrogated as to his
previous conviction of a felony, and evidence of this character is competent as
bearing upon the credibility of such witness. The defendant has taken the
stand as a witness and it appears without conflict that he has been convicted
of a felony. All of the evidence with reference to the previous conviction of a
felony should be considered by you only for the purpose of determining the
credibility of the witness, and this should be considered by you for no other
purpose.144
45 PROVINCE OF THE COURT AND THE JURY § 42
The following not erroneous:
Although there is more than one defendant in this action, it does not follow
from that alone that if one is liable, both a're liable. Each is entitled to a fair
consideration of his own defense and is not to be prejudiced by the fact, if it
should become a fact, that you find against the other. The instructions cover
the case as to each defendant insofar as they are applicable to him, to the same
extent as if he were the only defendant in the action and regardless of whether
reference is made to the defendant or defendants in singular or plural form, you
will decide each defendant's case separately as if each were a separate
lawsuit.14 5
Error is assigned on the failure to give the requested instruction that "the
defendant is entitled to an absolutely fair and impartial trial in this court
regardless of his color." The defendant's race, or color, was not a proper matter
for comment by the trial judge, and there is no merit in the contention that the
judge should have given this requested instruction.14 6
The failure to renew a request for an instruction on the limited use of
evidence of similar bad acts at the time jury is instructed waives any error.14'7
I would like to also- at this stage, caution the jury that remarks made by
counsel on either side of the case, including their summation of the case, do not
constitute evidence in the case, and remarks made by the court do not consti-
tute evidence in the case.
The evidence in the case comes from the witness stand by persons who have
testified before you,14*8
A trial court judge properly refused to give the following cautionary instruc-
tion because it constituted an improper comment by the court on the evidence
and usurped the function of the jury:
"An accomplice is a person who helped commit a crime, or advised or encour-
aged a person to commit a crime. You must determine whether any witness in
this case is an accomplice.
"The evidence of an accomplice should be received with great caution/'
"The testimony of an accomplice ought to be viewed with distrust This does
not mean that you may arbitrarily disregard such testimony, but you should
give to it the weight to which you find it to be entitled after examining it with
care and caution and in the light of all the evidence in the case." 14'9
Once the trial judge deems tapes or transcripts to be admissible into evi-
dence, and such admission occurs, the trial judge should instruct the jury that
they are the final arbiters of the evidence's accuracy and reliability. The judge
should also instruct the jury that if they decide there is any difference between
the tapes and the transcripts, they must rely on the tapes. This instruction
minimizes the possibility that the jury will not use their independent judgment
and therefore rely too heavily on the importance of the transcripts when
making their decision.
Although such a cautionary instruction was not given by the trial judge in
this case, on appeal such an omission was not held reversible error due to the
particular facts of the case.14"10
^ Georgia. Duncan v. State, 271 SE2d 878 **'1 Georgia, Young v. State, 226 Ga 553, 176
(GaApp 1980). SE2d 52 (1970).
42A
INSTRUCTIONS— RULES GOVERNING
46
8412 Pennsylvania. Commonwealth v.
Whiting, 420 A2d 662 (PaSuper 1980).
84-3 Pennsylvania. Quinlan v. Brown, 419
^2d 1274 (PaSuper 1980).
**A Nevada. Potter v. State, 619 P2d 1222
Nev 1980).
8*-B Wisconsin. State v. Bettmger, 303 NW2d
585 (Wise 1981).
8511 California. People v. Palmer, 80
CalAppSd 239, 145 CalRptr 466 (1978).
^ Arizona. State v. Mullalley, 127 Ariz 92,
618 P2d 586 (1980).
87-* California. Richardson v. Employers
Liability Assur. Co., 25 CalAppSd 232, 102
CalRptr 547 (1972).
87-2 Delaware. Massey-Ferguson Inc. v.
Wells, 421 A2d 1320 (Del 1980).
87<3 Delaware. Joseph v. Monroe, 419 A2d
927 (Del 1980).
88-1 Pennsylvania. Commonwealth v.
Brown, 438 Pa 52, 265 A2d 101 (1970).
92.1 Texas. Brockett v. Tice (TexCivApp), 445
SW2d 20 (1969).
Mi2 Delaware. Joseph v, Monroe, 419 A2d
927 (Del 1980).
**A California. People v. Zatko, 80 CalAppSd
534, 145 CalRptr 643 (1978).
91 -^ Georgia. Cowans v. State, 145 GaApp
693, 244 SE2d 624 (1978).
9743 Connecticut. State v. Anonymous, 36
ConnSupp 583, 421 A2d 872 (1980).
"-1 Washington. Myers v Harter, 76
Wash2d 772, 459 P2d 25 (1969).
5-1 Federal. Posey v United States, 416 F2d
545 (1969).
7-1 Wyoming. Alcala v. State (Wyo), 487 P2d
448(1971).
7-2 New York. People v. Jackson, 68 AD2d
636, 418 NYS2d 31 (1979).
12.1 iowa. state v. Estrella, 257 la 462, 133
NW2d 97 (1965).
l4-1 Missouri. Baccalo v. Nicolosi (Mo), 332
SW2d 854 (1960).
14-2 Iowa. State v. Shephard, 255 la 1218, 124
NW2d 712 (1963).
14-3 Connecticut. State v. Powers, 4 ConnCir
520, 236 A2d 354 (1967).
14-4Iowa. State v. Schatterman (la), 171
NW2d 890 (1969).
14-5 Illinois. Bebb v. Yellow Cab Co., 120
IllApp2d 454, 257 NE2d 164 (1970).
14-6 Georgia. Young v. State, 226 Ga. 553,
176 SE2d 52 (1970).
14-7 Michigan. People v. Valoppi, 61
MichApp 470, 233 NW2d 41 (1975).
14-8 Michigan. People v. Styles, 61 MichApp
532, 233 NW2d 70 (1975).
14.9 Arizona. State v. Bussdieker, 621 P2d 26
(Ariz 1980).
14-10 Rhode Island. State v. Ahmadjian, 438
A2d 1070 (RI 1981).
§ 42A. Urging hung jury to redeliberate: "The dynamite charge."
Ladies and gentlemen of the jury, now on the trial of this case, what I have
to say to you should in no way influence your decision, either for or against the
Commonwealth, or for or against the defendant, but merely point out to you
that this trial is expensive, both upon the Commonwealth and the defendant.
You twelve people have been chosen to decide this issue, and I know of no better
qualified people to make the decision. You realize that this issue must be
decided by someone, either now or in the future, perhaps by further delibera-
tion you could re-evaluate your decision and opinion in this case, and also
consider the opinion and position of the other jurors. With this in mind, I am
now re-submitting this case to you to see if you can reach a verdict. The
admonition that I gave you last night is now withdrawn. You can take the
instructions and retire to the jury room and see if you can reach a verdict.14-10
"I will say this to you ... I don't want to say anything that might coerce or
unduly influence you. . . . [Y]ou are just as qualified as any jury ever will be in
Gordon County to make a verdict in this case I would say that no juror is
required to surrender his honest and sincere convictions in any case, but I will
let you go back and see if you can make a verdict." (The vote was 10 to 2 and
the judge stated also:) "The ten should strive to see it in the light of the two
and the two should strive to see it in the light of the ten and make an honest
and conscientious effort to reach a verdict. I would say that no juror is required
to surrender his honest and sincere convictions in any case."14'11
Material that describes or represents sex in various forms is not obscene if
its social or literary values or importance outweighs the prurient or the
47 PROVINCE OF THE COURT AND THE JURY § 42A
offensive aspects of it. If the quality of the material has a significant and
overbearing social or literary value it may not be found to be obscene merely
because it offends community standards or appeals to prurient interests.14'12
Note: The above instruction was found to be a sensible analysis based on
standards set forth in Roth v. United States, 354 U.S. 476, 1 L. Ed. 2d 1498,
77 Sup. Ct 1304 (1957).
Members of the jury, since we have not heard from you, I assume that you
have not yet agreed on your verdict. I presume that you ladies and gentlemen
realize what a disagreement means. It means, of course, that another three or
four days or more of the time of the Court will have to be consumed in the trial
of this action again.
I do not want to force you or coerce you in any way to reach a verdict, but
it is your duty to try to reconcile your differences and reach a verdict if it can
be done without any surrender of one's conscientious convictions.
You have heard the evidence in this case. A mistrial, of course, would mean
another jury would have to be selected to hear the case and the evidence all
over again at great costs and expense to our state and your county.
Now, I recognize the fact that there are sometimes reasons why jurors cannot
agree, and I want to emphasize the fact that it is your duty to do whatever you
can to reason the matter out, if you can, as reasonable men and women, and
to reconcile your differences if such is possible without the surrender of
conscientious convictions, and to reach a verdict.
With that admonition, I will ask you to please go back and see if you can
agree on your verdict in this case. You may continue for deliberations.14'13
I was at this point going to call you all out to talk to you. And I would like
to say that I know that there has been an awful lot of work put in this case both
by the prosecution and by the defense. And I feel that you as jurors are just as
capable of deciding this case as the next jury that might hear this case.
So I'm asking you in all sincerity, I'm not trying to pressure you or coerce you
in any way to please listen to each other, talk about it, and please try and come
to a verdict. If you can't you can't. But please try.14-14
As you all know, the purpose of a trial is a search for the truth.
Therefore, if it is at all possible, it is desirable that a jury should reach a
verdict, one way or the other.
I am not suggesting that you should agree on a verdict that you do not
consider to be 'a just verdict, but I am suggesting that you attempt to resolve
your differences and agree on a proper verdict that is in accordance with your
findings of fact and the law as I have explained it to you. . . .
Now I ask you to go back into the jury room and once again review the
evidence.
Go over the testimony of each witness sensibly, weigh it very carefully.
Discuss it calmly, dispassionately. Listen to the view and arguments of your
fellow jurors. This is, what I mean by deliberations
Being under oath you must continue; or you are under oath to deliberate in
this court until there are no further deliberations warranted in this case.
That does not mean that every decision must be made by you.
It does not mean that a verdict must be reached.
But it does mean that every effort should be made by you consistent with
your conclusions to arrive at a verdict
§ 43 INSTRUCTIONS— RULES GOVERNING 48
If you are unable to reach a verdict by 6:45 P.M., I am going to tell you what
I will do.
I am going to send you out to dinner and then to a hotel at 6:45 P.M., because
there is no point in coming back here from dinner. It will be late at night.
Tomorrow morning your minds will be free and fresh. You can deliberate
some more then. This is a serious case. A verdict should be reached, one way
or the other. . . .
I am going to ask you to go back in there now and work until 6:45 P.M.
If there is no verdict reached one way or the other, I am sending you out to
dinner and out to a hotel, and you will leave the building until tomorrow
morning, when you will come back here and go back to the jury room, and once
again see if you can come to a verdict one way or the other.14'15
Your verdict here must represent the considered judgment of each juror. In
order to return a verdict, it is necessary for each juror to agree thereto. Your
verdict must be unanimous. It is your duty as jurors to consult with each other
and to deliberate with a view to reaching a verdict if you can do so without
violence to individual judgment. Each of you must decide the case for yourself,
but do so only after impartial consideration of the evidence with your fellow
jurors.
In the course of your deliberations do not hesitate to re-examine your own
views and change your opinion if convinced it is erroneous, but do not
surrender your honest conviction as to the weight or effect of evidence solely
because of the opinion of your fellow jurors, or for the mere purpose of returning
a verdict. You are not partisans, you are judges, judges of the facts. Your sole
interest is to ascertain the truth from the evidence in the case.
So, with that in mind, I want you to go back and I will see in a while longer
if you are any closer to a verdict.
You may go back and continue your deliberations at this time.14'16
The following instruction was not an improper "dynamite charge":
"Now, the court instructs you that a verdict is not a verdict unless and until
all twelve jurors agree unanimously as to what your decision shall be; that is,
all twelve minds agree on a verdict of guilty or not guilty." 14 17
14>1° Kentucky. Brannon v. Commonwealth 14-14 Michigan. People v. Lovett, 63 MichApp
(Ky), 400 SW2d 680 (1966). 657, 234 NW2d 749 (1975).
14-H Georgia. American Family Life Assur. 14-15New York. People v. Sharff, 45
Co. v. Welch, 120 Ga 334, 170 SE2d 703 (1969). AppDiv2d 666, 360 NYS2d 671 (1974).
I4-12 Wisconsin. Court v. State, 51 Wis2d 14'16 Illinois. People v. Allen, 47 IllAppSd
683, 188 NW2d 475 (1971). 900, 8 IllDec 222, 365 NE2d 460 (1977).
14-13 North Carolina. State v. Williams, 288 14'17 North Carolina. State v. Ward, 272
NC 680, 220 SE2d 558 (1975). SE2d 84 (NC 1980).
§ 43. Cautioning individual jurors.
"A trial court may properly discharge its responsibility to avoid mistrials by
encouraging jurors to adhere to their oaths and make one final effort to review
the evidence and reach a verdict one way or the other
"Here, although the approach of the Trial Judge may not have been ideal, in
essence he simply asked the jurors to exert their best efforts and renew delib-
erations. No jurors were impermissibly singled out for noncompliance with the
majority. None were improperly threatened, nor was it even suggested that the
49 PROVINCE OF THE COURT AND THE JURY § 45
jury would be forced to continue deliberations indefinitely without any outside
communication should agreement still elude them following a renewal of their
efforts to reach a verdict." 15 1
If your recollection of the testimony is different from what somebody says,
then you take your own recollection, yours as determined from the evidence.17'1
1M New York. People v. Jackson, 68 AD2d 17-J North Carolina. State v. Rennick, 8
636, 418 NYS2d 31 (1979). NCApp 270, 174 SE2d 122 (1970).
§ 45. Coercing jury to reach agreement.
The trial judge, upon being informed that the jury was deadlocked, called in
the jury foreman and inquired of him whether or not the jury desired further
instruction. The foreman retired to the jury room to make inquiry of his fellow
jurors, and he returned to the courtroom and reported, "all feel that they could
come to a verdict if they had some more" instruction. The entire jury then came
to the courtroom and asked for re-charge, specifically, on the word
"knowingly." The judge gave the re-charge, and a juror expressed lingering
doubt about the meaning of the word. After he informed that juror that Mosley
could not be convicted unless he knowingly obstructed justice, the judge asked
if there were further instruction he could offer and the juror responded
negatively. The judge also instructed the jury, at the time of the re-charge, that
his business was not to interfere in their deliberations, but only to offer instruc-
tional assistance, and that it was their province alone to determine guilt or
innocence. Mosley's counsel was present for all of this judicial communication
with the jury. Contrary to Mosley's allegations, the trial judge's handling of the
re-charge was not coercive of any individual juror, nor was it an interference
with jury deliberations. Also, "[w]here the jury, after having been charged by
the court, returns into court and requests an instruction upon a specific ques-
tion, it is not error for the judge to confine his instruction to the specific point
suggested by the jury's inquiry." 36 1
The judge's statement that the case was not a difficult one that would not be
a problem at home or in the barbershop, and that the jury could decide in five
minutes, was not objected to by the defendant at trial and did not amount to
coercion of the jury indicating they should convict. The statement was an effort
by the court to encourage the jury to arrive at a verdict by pointing out that
there was nothing esoteric about the case or the jury's task; that even in the
unfamiliar environment of a courtroom all the jury had to do was to use their
common sense and resolve a question of credibility. Since there was only one
issue, that of credibility, and the judge conscientiously answered some 25
questions asked by the jury during seven hours of deliberation after the judge's
statement, the judgment is affirmed.36'2
"Convictions entered on the jury's verdict will not be set aside because, on
reflection in tranquility, better charges could have been composed." 36-3
The following instructions could not be condemned by the court since they
did not amount to an "Allen" charge:
"It is the duty of each juryman, while the jury is deliberating upon their
verdict, to give careful consideration to the views his fellow-jurymen may have
to present upon the testimony in the case. He should not shut his ears and
stubbornly stand upon the position he first takes, regardless of what may be
§ 45 INSTRUCTIONS— RULES GOVERNING 50
said by the other jurymen. It should be the object of all of you to arrive at a
common conclusion and to that end you should deliberate together with
calmness. It is your duty to arrive upon a verdict, if that is possible.
"You are instructed, however, that if any one of the jury after having con-
sidered all the evidence in this case, and after having consulted with his
fellow-jurymen, should entertain a reasonable doubt of the defendant's guilt,
then the jury cannot find the defendant guilty."
"I believe it is my duty to remind you that this trial has, as a matter of course,
been attended with large expense to the parties, and that you should make
every effort to agree. To aid you in the consideration in the case, I instruct you
that although the verdict to which a juror agrees must, of course, be his own
verdict, the result of his own convictions, and not a mere acquiescence in the
conclusion of his fellow jurors, yet in order to bring twelve minds to a
unanimous result, you must examine the question submitted to you with
candor and with a proper regard and deference to the opinions of each other.
You should consider that at some time the case must be decided; that you are
selected in the same manner and from the same source from which any future
jury must be selected; and there is no reason to suppose that this case will ever
be submitted to twelve men and women more intelligent, more impartial, or
more competent to decide it; or that more and clearer evidence will be produced
on the one side or the other, and with this in view, it is your duty to decide the
case, if you can conscientiously do so." 37-1
The so-called "Allen" charge (Allen v. United States, 164 U.S. 492) amounted
to nothing more than the obvious statement of the desirability of the jury's
agreeing if they could do so without surrendering any juror's conscientious
convictions, without violating their individual judgments and conscience; that
another jury would have no more information and be no more competent than
this jury; that jurors should not approach their deliberations with a closed
mind. This is not substantially different from the standard charge as to the
jury's duty to try to arrive at a verdict without sacrificing their conscientious
views and to approach their deliberations with an open mind.37-2
The trial court's charge was not coercive:
"If this trial results in disagreement, another trial will have to ensue, with
a consequent loss of time and money, both to the State, plaintiff and defendant.
"It takes time, it takes money to have these trials as you see right here in
your pay alone. For jurors it costs more than two hundred dollars a day to run
this Court, but that's not the important thing. The important thing is that we
resolve this dispute between these people," 3S 1
"A trial court may properly discharge its responsibility to avoid mistrials by
encouraging jurors to adhere to their oaths and make one final effort to review
the evidence and reach a verdict one way or the other. . . .
"Here, although the approach of the Trial Judge may not have been ideal, in
essence he simply asked the jurors to exert their best efforts and renew delib-
erations. No jurors were impermissibly singled out for noncompliance with the
majority. None were improperly threatened, nor was it even suggested that the
jury would be forced to continue deliberations indefinitely without any outside
communication should agreement still elude them following a renewal of their
efforts to reach a verdict."382
51 PROVINCE OF THE COURT AND THE JURY § 45
The following supplemental charge was proper as long as there was no
evidence that it was given in a threatening or coercive manner:
"All right. You know if y'all don't reach a verdict then first I want to remind
you that it's costly to the Defendant, to the State, the Court and of course, all
parties. If y'all don't reach a verdict it means that in another month or two
another jury is going to have to hear substantially the same evidence and be
faced with the same problem of reaching a verdict. So, you are as capable of
reaching that verdict as any jury. And I want to ask you to continue your
deliberations, try to get together, and reach a verdict based upon the evidence
in this case." 3S 3
The following comments to the jury were held proper:
"Ladies and gentlemen, we are going to let you retire to the jury room over
on your front right and consider your verdict. Some time later in the afternoon
if you do not reach a verdict, then we will let you go to the motel for the night.
If you do reach a verdict, of course, we will discharge you until tomorrow. But
do not let that affect your judgment one way or the other in the case. Give it
full consideration and take such action as you think is proper according to the
instructions and the evidence in the case. You can retire now." 38-4
The following instruction by the trial court was not coercion because the
jurors were not misled into thinking that they must reach a verdict by giving
up their own personal opinions on the guilt or innocence of the defendant:
"Your verdict has to be unanimous, all twelve of you have to agree on a
verdict of guilty or not guilty. That does not mean that you cannot have your
own opinion. Discuss your opinion amongst yourselves and try to resolve those
opinions if there is a difference of opinion. If there is not then no resolution is
necessary." 4ai
It is error to admonish the jury as follows:
"Well, of course, I recognize and appreciate the fact that you have been out
now for better than 15 hours, but in justice to all the parties, the State, and
society, and the defendant, I feel, especially in view of the fact that the vote is
now 11 to 1, that this case would be disposed of by your verdict, and it is
certainly my earnest hope and, likewise my firm belief that this can be accom-
plished. And, especially, in view of the fact that the vote is 11 to 1, 1 just can't
be convinced that there is no possibility of your agreeing. I certainly have every
confidence in our jury system and I've got every confidence in you ladies and
gentlemen as jurors in this case, and I am going to ask you again to retire to
your jury room and I'm going to ask you to earnestly renew your efforts to come
to a verdict in this case. And I will check with you later on again this afternoon.
Thank you very much." 47-1
It is error to admonish the jury as follows:
"Well, I don't want anybody to give up their honest convictions in this case,
but it occurs [to me that] somebody is being a little unreasonable, stubborn. I
don't see how any jurors — as intelligent as any jurors we could get — and it's
a very expensive operation to hold these trials for a week at a time and the jury
ought to be able to reach a conclusion based on the evidence and by a
preponderance of the evidence. I mean on the evidence from the standpoint of
a reasonable doubt. If there is a reasonable doubt you ought to acquit him. If
there isn't a reasonable doubt, you ought to convict him. I'm going to let you
go back and continue your deliberations. We're not going to declare a mistrial
at this stage." 47'2
§ 45 INSTRUCTIONS-RULES GOVERNING 52
Before it can be said that comments made by the trial court judge in
instructing the jury are of such prejudicial nature as to require a mistrial, the
remarks must be such that they impair the impartiality of the trial. Otherwise,
the remarks will not be judicial misconduct.47 3
The following instruction was held to be erroneous as appearing to coerce the
jury:
"This court expects a verdict in this case. It costs the taxpayers of this county
a lot of money to try these cases and another trial would be doubly expensive.
Most of the taxpayers make their money the hard way and so the taxpayers of
this county expect a verdict, not an exhibition of obstinacy."
The following instruction was held not to have coerced the jury to reach an
agreement by setting a time limitation upon the jury:
"Now, ladies and gentlemen, the court suggests that you return to the jury
room and elect a foreman or a forelady and start to deliberate in this case. If
at 4:15 — it is now 3:23 — you have not reached a verdict, the Court will excuse
you at that hour until Monday morning at 10:00 o'clock, at which time you will
resume your deliberations if you do not reach a verdict today." 5a2
The following held not to pressure a juror to surrender his independent
judgment:
"I would like to say, members of the jury, consistent with my statement made
earlier, I will not keep you here beyond 9:00 o'clock, except by your request. If
you have not reached a verdict by approximately 9:00 o'clock, I will make
inquiry and if you have not and do not want to stay longer, we will recess for
the evening and come back tomorrow; . . . ." 50>3
In this case, the jury was comprised of both women and men, both white and
colored. When the jury was told by the court immediately prior to the giving
of the "Allen" charge, supra, that it was important to reach a verdict if possible,
and that the Court could see, "that you ladies and gentlemen receive lodging
for the balance of the night, at some local hotel, in a group, and then you could
return and deliberate tomorrow, or you folks continue your deliberations
tonight." The instruction as given, if given under different circumstances,
would not have been improper, but the giving thereof at the late hour of the
night, and without a clearer explanation of how the jury could be kept together
overnight at a hotel, we believe, and so hold, renders the instruction objec-
tionable and prejudicial to the defendant's rights. Furthermore, one juror had
admitted the jury couldn't agree, but that the jurors were still able to calmly
and intelligently discuss the case, even after the long period of more than five
hours.50-4
,1 was at this point going to call you all out to talk to you. And I would like
to say that I know that there has been an awful lot of work put in this case both
by the prosecution and by the defense. And I feel that you as jurors are just as
capable of deciding this case as the next jury that might hear this case.
So I'm asking you in all sincerity, I'm not trying to pressure you or coerce you
in any way to please listen to each other, talk about it, and please try and come
to a verdict. If you can't you can't. But please try.50 5
Members of the jury, since we have not heard from you, I assume that you
have not yet agreed on your verdict. I presume that you ladies and gentlemen
realize what a disagreement means. It means, of course, that another three or
four days or more of the time of the court will have to be consumed in the trial
of this action again.
53 PROVINCE OF THE COURT AND THE JURY § 45
I do not want to force you or coerce you in any way to reach a verdict, but
it is your duty to try to reconcile your differences and reach a verdict if it can
be done without any surrender of one's conscientious convictions.
You have heard the evidence in this case. A mistrial, of course, would mean
another jury would have to be selected to hear the case and the evidence all
over again at great cost and expense to our state and your county.
Now, I recognize the fact that there are sometimes reasons why jurors cannot
agree, and I want to emphasize the fact that it is your duty to do whatever you
can to reason the matter out, if you can, as reasonable men and women, and
to reconcile your differences if such is possible without the surrender of
conscientious convictions, and to reach a verdict.
With that admonition, I will ask you to please go back and see if you can
agree on your verdict in this case. You- may continue for deliberations.50'6
As you all know, the purpose of a trial is a search for the truth.
Therefore, if it is at all possible, it is desirable that a jury should reach a
verdict, one way or the other.
I am not suggesting that you should agree on a verdict that you do not
consider to be a just verdict, but I am suggesting that you attempt to resolve
your differences and agree on a proper verdict that is in accordance with your
findings of fact and the law as I have explained it to you. . . .
Now I ask you to go back into the jury room and once again review the
evidence.
Go over the testimony of each witness sensibly, weigh it very carefully.
Discuss it calmly, dispassionately. Listen to the view and arguments of your
fellow jurors. This is what I mean by deliberations. . . .
Being under oath you must continue; or you are under oath to deliberate in
this court until there are no further deliberations warranted in this case.
That does not mean that every decision must be made by you.
It does not mean that a verdict must be reached.
But it does mean that every effort should be made by you consistent with
your conclusions to arrive at a verdict
If you are unable to reach a verdict by 6:45 P.M., I am going to tell you what
I will do.
I am going to send you out to dinner and then to a hotel at 6:45 P.M., because
there is no point in coming back here from dinner. It will be late at night.
Tomorrow morning your minds will be free and fresh. You can deliberate
some more then. This is a serious case. A verdict should be reached, one way
or the other. ...
I am going to ask you to go back in there now and work until 6:45 P.M.
If there is no verdict reached one way or the other, I am sending you out to
dinner and out to a hotel, and you will leave the building until tomorrow
morning, when you will come back here and go back to the jury room, and once
again see if you can come to a verdict one way or the other.50-7
^Georgia. Mosley v. State, 145 GaApp 37** Wyoming. Alcala v. State (Wyo), 487 P2d
651, 244 SE2d 610 (1978). 448 (1971).
883 New York. People v. Jackson, 68 AD2d 37'2 New York. People v. Jackson, 68 AD2d
636, 418 NYS2d 31 (1979). 636, 418 NYS2d 31 (1979).
se-3 New York. People v. Jackson, 68 AD2d 38>1 Rhode Island. Bookbinder v. Rotondo,
636, 418 NYS2d 31 (1979). 109 RI 346, 285 A2d 387 (1972).
§ 45A INSTRUCTIONS-RULES GOVERNING 54
3«-2 New York. People v. Jackson, 68 AD2d Appellate Court opinion contains an invaluable
636, 418 NYS2d 31 (1979). collection of examples of coercive instructions.
38-3 Alabama. Lake v. State, 390 S2d 1088 50-2 District of Columbia. Greenberg v.
(AlaCrimApp 1980). Giant Food Shopping Center, Inc. (DC App),
3&4 Alabama. Allied v. State, 390 S2d 1109 158 A2d 476 (1960). The jury returned its
{AlaCrimApp 1980). verdict at 4:10 p.m.
4<X1 Pennsylvania. Commonwealth v. 50-3 North. Carolina. State v. Macon, 6
Stevenson, 421 A2d 729 (PaSuper 1980). NCApp 245, 170 SE2d 144 (1969).
4™ Nebraska. State v. Garza, 185 Neb 445, TO-4 Florida. Lee v. State (FlaApp), 239 S2d
176 NW2d 664 ( 1970). 136 (1970).
47-2 Georgia. Riggins v. State, 226 Ga 381, *>* Michigan. People v. Lovett, 63 MichApp
174 SE2d 908 (1970). 657, 234 NW2d 749 (1975).
47-3 Rhode Island. State v. Rogers, 420 A2d w-6 North Carolina. State v. Williams, 288
1363 (RI 1980). NO 680, 220 SE2d 558 (1975).
aai Alabama. Orrv. State, 40 AlaApp 46, ^New York. People v. Sharif, 45
111 S2d 627 (1958), affd., Ill S2d 639. The AppDiv2d 666, 360 NYS2d 671 (1974).
§ 45 A. Proper inquiry by court of numerical division of jury.
. . . [T]o avoid future misunderstanding, it is suggested that a court should
state the question, affirmatively, negatively, and illustratively, e.g.: "Tell me
how you stand numerically — that is, whether you are 6 and 6, 8 to 4, etc., BUT
DO NOT TELL ME WHETHER THAT NUMBER IS FOR GUILT OR INNO-
CENCE. Do you understand my question?" 50-8
*** Georgia. Wilson v. State, 145 GaApp
315, 244 SE2d 355 (1978).
§ 46. Private communications of the judge with the jury during their
deliberations.
It is proper, and often necessary, that judges ask questions of witnesses
which are designed to obtain a proper understanding and clarification of the
witnesses' testimony.51"1
After the court had discharged the jury for the night, the jury remaining
deadlocked, the trial judge assisted one of the jurors by transporting her to the
hospital, where her elderly brother had been taken after he had suddenly
become seriously ill. This juror later testified, under oath, that she and the
judge had had no discussion whatsoever about the case at bar. The juror also
testified that she had been quite distraught and that the judge decided to
transport her himself because he believed he could get her to the hospital
quicker than could a deputy sheriff, for whom she would have had to wait.
While we cannot condone the action of the trial judge, which certainly provokes
the appearance of impropriety, we find no abuse of discretion in his refusal to
grant a mistrial. Furthermore, as the trial judge did not give testimony as a
sworn witness and as the involved juror could and did testify as to the occasion
of the judge's assisting her and therefore the judge's testimony as a witness was
not likely to have been needed, the judge did not err in failing to disqualify
himself. . . ,64-1
Now, if during the course of this trial any question or any problem should
arise which you should communicate to me or the attorneys, you are not to do
that, but you are to take it up with the bailiff. And then the bailiff will in turn
take it up with me, and I will take it up with counsel and see if we can resolve
whatever your problem might conceivably be.
55 SUBJECT-MATTER . § 50
Now, in this case, as counsel has already pointed out to you, we are using a
Spanish interpreter for the defendant.
Some of you speak Spanish. If you should disagree with the interpretation
that you hear being given, for example, don't make any comment about it.
If you wish, you can tell the bailiff about it. And he will take it up with me,
and we will resolve it.
But other than that, any other kind of problem which might come up, tell the
bailiff about it. He is the liaison officer between you and the court.
We will then discuss it. I will discuss it and counsel will discuss it and see
if we can resolve whatever the problem is.55
51-J North Carolina. State v. Rennick, 8 315, 244 SE2d 610 (1978).
NCApp 270, 174 SE2d 122 (1970). 5S California. People v. Silva, 139 CalRptr I,
**A Georgia. Mosley v State, 145 GaApp — P2d — (1977).
CHAPTER 3
SUBJECT-MATTER
Section Section
50. Pertinency of instructions to issues and 64. Circumstantial evidence in criminal
evidence. cases.
50 A. Restatement provisions read to jury: 66. Inferences from flight,
51. Recapitulation of testimony. 66A. Inferences from failure to testify.
52. Theories of case in civil actions. 67. Confessions in criminal cases.
53. Theories of case in criminal prosecution. 68. Credibility of witnesses — Interest of wit-
54. Definition of terms in civil cases. nesses — Falsus in uno, falsus in
55. Definition of terms in criminal cases. omnibus.
56. Limitation of purpose of evidence. 69. Credibility of witnesses in criminal cases
57. Lower grade of offense. — Interest of witnesses — Falsus in uno,
58. Insanity of accused. falsus in omnibus.
59. Reasonable doubt. 70. Failure of party to testify in his own behalf
60. Good character as generating reasonable or call material witness.
doubt of guilt. 71. Failure of defendant in criminal case to
61. Burden of proof in civil cases. testify or call witness or produce evi-
61A. Instructions — Rules governing presump- dence.
tion of due care in issue of contributory 71 A. Failure of prosecution in criminal case to
negligence. call witness or produce evidence.
62. Burden of proof and presumption of inno- 72. Alibi in criminal cases.
cence in criminal cases. 73. Instruction to disregard testimony
62A. Self-defense good faith requirement. erroneously received.
62B. Burden of proof by clear and convincing 74. Argument of counsel.
evidence. 75. Manner of arriving at verdict.
§ 50. Pertinency of instructions to issues and evidence.
The trial court judge does not abuse his discretion when he reads to the jury
a statute, e.g., restatement of torts, which contains all the elements of the act
alleged. Further amplification focusing upon particular factual aspects of the
case is unnecessary, and the trial court judge also is not obliged to read com-
mentary to the statute as part of the instructions that he gives the jury. In
addition, the trial court judge does not abuse his discretion if he decides to
explain a particular statutory or restatement provision to the jury without
using the exact language of the text.1 1
It appears well settled that instructions should contain remarks which
address themselves to all elements of the crime; otherwise the instructions are
incomplete and may be misleading to members of the jury.27'1
§ 50A INSTRUCTIONS-RULES GOVERNING 56
Bay Medlcal ^sffls-s®*^ 2l MlchApp
§ 50A. Restatement provisions read to jury.
The trial court judge does not abuse his discretion when he reads to the jury
a statute, e.g., restatement of torts, which contains all the elements of the act
alleged. Further amplification focusing upon particular factual aspects of the
case is unnecessary, and the trial court judge also is not obliged to read com-
mentary to the statute as part of the instructions that he gives the jury. In
addition, the trial court judge does not abuse his discretion if he decides to
explain a particular statutory or restatement provision to the jury without
using the exact language of the text.31-1
31-1 Maine. Knight v. Penobscot Bay Medical
Center, 420 A2d 915 (Me 1980).
§ 51. Recapitulation of testimony.
It is well settled in this jurisdiction that the trial court is not required to state
the contentions of the parties, but when it undertakes to state the contentions
of one party upon a particular phase of the case, it is incumbent upon the court
to give the opposing contentions of the adverse party upon the same aspect;
however, it is not required that the statement of such contentions be of equal
length.31-2
The State says and contends that this is a clear cut case of a person being out
on a highway late at night while highly intoxicated. The State says and
contends that all the evidence tends to show that the defendant was drinking
of alcohol on this occasion and that he did not appear to be under control of his
mental or bodily faculties and that as a result he was driving in that condition
on the highway and as a result of it he used profane and loud, boisterous
language in front of two or more people in the presence of two or more people
in a public place, in the police station on that night; and the State says and
contends that he is guilty.32-1
31JB North Carolina. Comer v, Cain, 8 82*1 North Carolina. State v. Rennick, 8
NCApp 670, 175 SE2d 337 (1970). NCApp 270, 174 SE2d 122 (1970).
§ 52. Theories of case in civil actions.
A party is entitled to have his case submitted to the jury upon his theory of
the case, but only when there exists substantial admissible evidence in support
thereof.41-1
A party seeking ... an instruction on imminent peril must present a record
containing some evidence that there was affirmative action or voluntary con-
duct on his part in an effort to avoid the danger, following the unexpected
appearance of danger.41-2
Each party is entitled to an instruction on his particular theory of the case
so long as there is evidence to support the theory.41'3
An instruction is proper which conveys to the jurors the correct principles of
law applicable to the evidence submitted to them. A party to a lawsuit is
entitled to instructions on its theory of the case when that theory is supported
by the pleadings and evidence but, where no prejudice is shown, the refusal to
give an instruction is not reversible error.41'4
57 SUBJECT-MATTER § 53
Although the trial court judge, in his instruction to the jury on the doctrine
of strict liability in tort, defined the term "unreasonably dangerous," the
instruction is misleading because it was impossible for the jury to perform their
fact-finding function when they were not given the definition of defective. For
example, the following instruction deprived the plaintiff of the opportunity to
present his theory of recovery before the jury:
"[Tjhis lawsuit [is based] upon a theory of law known as Manufacturer's
Products Liability [T]he law [is that] . . . one who . . . supplies ... a product
in a defective condition which is unreasonably dangerous to the user ... is
strictly liable for all harm . . . [resulting from] the defect while the product is
being used for its intended purpose.
"By being 'unreasonably dangerous' to the user, as that term is used above,
means that the product must be shown .to be dangerous to an extent beyond
that which would be contemplated by the ordinary consumer who purchases it,
with the ordinary knowledge common to the community as to its char-
acteristics.
"In summary of this instruction, you may find the defendant liable to the
plaintiff in this lawsuit if you find from the evidence the following facts to exist:
1. That the defendant Nelson Sales Co., Inc., supplied the underwear which
was ultimately worn by the plaintiff at the time of his accident and that such
underwear contained a defect which made the product unreasonably dangerous
to the user;
2. That such defect existed in the product at the time it left the defendant's
control; and
3. That such product was the cause of damages to the plaintiff. In this
connection, you are instructed that the mere possibility that it might have
caused the injury is not enough."
In addition, the following instruction by the trial court was superfluous,
misleading and defense-slanted:
"[T]he mere happening of an accident and injury raises no presumption of
defectiveness in the garment involved in the accident, nor does it raise a
presumption of the breach by a defendant of its obligations under the theory
of Manufacturer's Products Liability."48-1
The trial judge is not required to tell the jury the contentions of the parties.
But if he does give the contentions of one party, he must also do the same for
the other party.57-1
41JL California. Atwood v. Villa, 25 41A Illinois. Goodrick v. Bassick Co., 58
CalAppSd 145, 101 CalRptr 508 (1972). IllApp3d 447, 16 IllDec 384, 374 NE2d 1262
40 California. Skoglie v. Crumley, 26 (1978).
CalAppSd 294, 103 CalRptr 205 (1972). 48'1 Oklahoma. Spencer v. Nelson Sales Co.,
41JJ California. McGoldrick v. Porter Cable 620 P2d 477 (OMApp 1980).
Tools, 34 CalApp3d 885, 110 CalRptr 481 ^ North Carolina. In re Wilson's Will, 258
(1973). NC 310, 128 SE2d 601 (1962).
§ 53. Theories of case in criminal prosecution.
A request to instruct on defendant's theory must be granted if the theory is
supported by the evidence.61'1
When such an instruction [diminished capacity] is requested by the defen-
dant, the trial judge's task is quite different from that required for sua sponte
§ 53 INSTRUCTIONS-RULES GOVERNING 58
instructions. By the defendant requesting the instruction, the court knows that
the defendant is relying on that defense. Its inquiry then focuses on the
sufficiency of such evidence. "It is well settled that if the defendant requests
an instruction it must be given if there is any evidence on that issue deserving
of any consideration whatsoever. . . ." Even where there is conflicting evidence
on this issue, nevertheless the law requires that "[hjowever incredible the
testimony of a defendant may be he is entitled to an instruction based upon the
hypothesis that it is entirely true."65'1
The test of a charge is whether it is correct in law, adapted to the issues and
evidence in the case, and sufficient to guide the jury in applying the law
correctly to the facts. Although the degree to which reference to the evidence
may be called for resides within the sound discretion of the court, the court
nonetheless must make sure that the charge adequately instructs the jury on
the elements of the offense charged.65'2
In instructing the jury on the elements of the offense of assault and battery,
it is not plain error to omit the element of "apparent ability to inflict harm" in
the charge. For example, it was held that the essence of the crime is an
"unlawful touching," that it would be superfluous to require, in addition, proof
of an "apparent ability to unlawfully touch," so that an instruction omitting a
charge on "apparent ability" was plain error so as to require reversal even
though the defendant failed to object to the instruction.66 x
As a general proposition, the trial court has discretion in charging the jury,
and the instructions will be held proper and non-prejudicial so long as that,
considering them in their entirety, they accurately, properly, and fairly state
the law as applied to the facts in the case. This discretion extends to refusal of
requests and to cautionary instructions as well. For example, when testimony
was offered against the defendant by an accomplice that had turned State's
evidence, it was held proper and not prejudicial error for the court to refuse to
give the following standardized jury instruction on accomplices:
"An accomplice witness is one who testifies that he was involved in the
commission of the crime with which the defendant is charged. You should
consider with caution testimony of an accomplice if it is not supported by other
evidence/' [emphasis supplied] and instead to give the following instruction
relating to the credibility of witnesses in general and not specifically men-
tioning the need to corroborate accomplice testimony:
"It is for you to determine the weight and credit to be given the testimony
of each witness. You have a right to use that knowledge and experience which
you possess in common with men in general, in regard to the matter about
which a witness has testified. You may take into account his ability > and
opportunity to observe and know the things about which he or she has testified,
his memory, manner, and conduct while testifying, any interest he may have
in the result of this trial, and the reasonableness of his testimony considered
in the light of all the evidence in this case.
"If you find that any witness has willfully testified falsely concerning any
material matter, you have a right to distrust the testimony of that witness in
other matters, and you may reject all or part of the testimony of that witness,
or you may give it such weight as you think it deserves. You should not reject
any testimony without cause."69 1
59 SUBJECT-MATTER § 54
Entrapment: Defendant contends that the failure of the trial court to give
an entrapment instruction denied him a fair trial He made no request for such
an instruction, and that issue was not properly before the court. By way of
holding the court said that ordinarily, entrapment requires the instigation of
the criminal act by the police. In the instant case there was no evidence that
the criminal act was instigated by the police, even though there was evidence
of the use of an informer.75 l
Burden of proof. In prosecution of defendant for assault and battery upon
a police officer, the testimony of defendant — that he grabbed officer's
nightstick and struck officer to stop unjustified attack by police officer on
defendant — entitled the defendant to a charge of self-defense, but the court
committed prejudicial error when it failed to make it clear to the jurors that
the defendant had no burden of proof on the issue of self-defense and that the
defendant was entitled to an acquittal so long as there was any evidence to
create reasonable doubt in their minds.78 1
6l-1 Federal. Perkins v. United States, 315 6SU Kansas. State v. Ferguson, 288 Kan 522,
F2d 120 (1963). 618 P2d 1186 (1980).
6S-1 California. People v. Stevenson, 79 75-1 Minnesota. State v. Eliason, 279 Minn
CalAppSd 976, 145 CalRptr 301 (1978). 70, 155 NW2d 465 (1968).
65-2 Connecticut. State v. Sumner, 178 Conn 7fu Utah. State v Torres, 619 P2d 694 (Utah
163, 422 A2d 299 (1980). 1980).
ea-1 Wyoming. Settle v. State, 619 P2d 387
(Wyo 1980).
§ 54. Definition of terms in civil cases.
The following instruction was given by the court simply as a definition of
fraud; it was not intended to supplant the criteria necessary to prove fraud:
"You are instructed that actual fraud is defined as follows: When a party
intentionally or by design misrepresents a material fact or produces a false
impression in order to mislead another, or to entrap or cheat him, or to obtain
an undue advantage over him, there is a fraud." 79 1
By the term ratified ... is meant the approval by act, word, or conduct, with
full knowledge of the facts, of the prior act, with the intention of giving validity
to such prior act.79'2
In connection with Special Issues 8 through 18, inquiring as to the conduct
of plaintiff, A. H. P., you are instructed that Article 1142, Penal Code of Texas,
states in part as follows:
"Article 1142. Lawful Violence. Violence used to the person does not amount
to an assault or battery in the following cases:
"4. In preventing or interrupting an intrusion upon the lawful possession of
property."
You are further instructed that "in preventing or interrupting an intrusion
upon the lawful possession of property" A. H. P. could use reasonable but not
excessive force to effect the purposes of this Statute.
By the term, "negligence," as used in Special Issues 8, 10, 13 and 17, is meant
that degree of care that an ordinarily prudent person in lawful possession of
property would have exercised under the same or similar circumstances in
carrying out the purposes of § 4, Article 1142, quoted above.79'3
The following was held not to constitute reversible error:
§ 54 INSTRUCTIONS— RULES GOVERNING 60
"That negligence on the part of the defendant, no matter how slight it may
be, if it is a proximate cause of the accident, is sufficient to impose negligence
and liability on the defendant. Negligence on the part of the plaintiff, no matter
how slight, if it is a substantial factor in producing the plaintiffs injuries, is
sufficient to bar the plaintiff from recovery."
I use the word "substantial" in connection with the definition of proximate
cause, which I have already given to you and I would give it to you over again.
When I say substantial, I mean that the negligence of either the defendant or
the plaintiff must be a proximate cause of the injury, and an act or omission
is a proximate cause of an injury if it was a substantial factor in bringing about
the injury, that is, if it had such an effect in producing the injury that reason-
able men would regard it as the cause of the injury.82 1
The following was held not to constitute reversible error:
"That negligence on the part of the defendant, no matter how slight it may
be, if it is a proximate cause of the accident, is sufficient to impose negligence
and liability on the defendant, Negligence on the part of the plaintiff, no matter
how slight, if it is a substantial factor in producing the plaintiffs injuries, is
sufficient to bar the plaintiff from recovery."
I use the word "substantial" in connection with the definition of proximate
cause, which I have already given to you and I would give it to you over again.
When I say substantial, I mean that the negligence of either the defendant or
the plaintiff must be a proximate cause of the injury, and an act or omission
is a proximate cause of an injury if it was a substantial factor in bringing about
the injury, that is, if it had such an effect in producing the injury that reason-
able men would regard it as the cause of the injury.88 1
The following was held not to constitute reversible error:
"That negligence on the part of the defendant, no matter how slight it may
be, if it is a proximate cause of the accident, is sufficient to impose negligence
and liability on the defendant. Negligence on the part of the plaintiff, no matter
how slight, if it is a substantial factor in producing the plaintiff's injuries, is
sufficient to bar the plaintiff from recovery."
I use the word "substantial" in connection with the definition of proximate
cause, which I have already given to you and I would give it to you over again.
When I say substantial, I mean that the negligence of either the defendant or
the plaintiff must be a proximate cause of the injury, and an act or omission
is a proximate cause of an injury if it was a substantial factor in bringing about
the injury, that is, if it had such an effect in producing the injury that reason-
able men would regard it as the cause of the injury.4-1
Under the influence of intoxicating liquor within the meaning of the
ordinance [§ 21-6-9 of the Ordinances of the city of Toledo] can be defined as
"that condition in which a person has consumed sufficient alcohol as to affect
his nervous system, brain, or muscles to the extent as to impair to an
appreciable degree his ability to operate a motor vehicle in the manner that an
ordinary, prudent and cautious man in the full possession of his faculties would
drive or operate a similar vehicle." 53 3
61 SUBJECT-MATTER § 54
The case record did not require Instructions defining "Perilous Position" and
"present value." 59 1
The expressions "common enterprise" and "community of interest" as used
in the definition of partnership, are ordinary words and need not be defined.59 2
Without a request, it is not error for a court not to define "proximate
cause."69'3
It is not error to not define "public highway" and "private driveway" in the
absence of specific requests.59 4
"Act of God" should be avoided. The phrase may cause jurors to believe they
have the awesome task of deciding whether an act was caused by God or by
man.595
You are further charged that the phrase "crew member" or "member of the
crew" means someone who has a part in the operation of an airplane in its
flight. Simply because the airplane of the type involved in this case is not
required to have a crew member, this does not mean that it cannot have a crew
member as I have defined that term to you.59-6
Now, let me tell you what constitutes "substantial performance." While It is
difficult to state what the term "substantial performance" or "substantial com-
pliance" as applied to building and construction contracts means, Inasmuch as
the term is a relative one, and the extent of the nonperformance must be
viewed with relation to the full performance promised, It may be stated
generally that there is substantial performance of such contract when all the
essentials necessary to the full accomplishment of the purposes for which the
thing contracted has been constructed or performed with such approximation
to complete the performance that the owner obtains substantially what is
called for by the contract.
Imperfections In the matters of detail which do not constitute a deviation
from the general plan contemplated for the work, do not enter into the sub-
stance of a contract and may be compensated in damages; do not prevent the
performance as being regarded as substantial performance.59'7
Where death occurs as a result of an unusual, unexpected or unforeseen
event or events following an intentional act or acts, the death is accidental.
Where death occurs as the natural result of a voluntary act or acts and there
is nothing unusual, unexpected or unforeseen which occurs, except the death,
the death is not accidental.
An event or events is not unforeseen, unexpected or unusual, as those terms
are used in these instructions, if the event or events would normally result
from the intentional act or acts.59"8
mi Arizona. Mobil Oil Co. v. Frisbie, 14 ^Ohio. City of Toledo v. Starks, 25
ArizApp 557, 485 P2d 280 (1971). QhApp2d 162, 54 QhQ2d 339, 267 NE2d 824
79-2Texas. Jamail v. Thomas (Tex CivApp), U97p-
481 SW2d 485 (1972) Texas. Missouri-Kansas-Texas Ry. Co. v.
-Texas. Denton'v. Poole (Tex CivApp), Jggj™ ^exCivApp), 323 SW2d 360
478 SW2d 834 (1972), . 59.2 ^^ Cavazos v> Cavazos (TexCivApp),
82.i New York. .Schmoll v. Luther, 36 339 gW2d 224 (I960)
AppDiv2d 996, 320 NYS2d 975 (1971). -59.3 Georgia. Williams v. Vinson, 104 GaApp
88.1 New York Schmoll v. Luther, 36 886, 123 SE2d 281 (1961).
AppDiv2d 996, 320 NYS2d 975 (1971). 59.4 North Carolina. C. C. T. Equipment Co.
4-*New York, Schmoll v. Luther, 36 v. Hertz Corp., 256 NC 277, 123 SE2d 802
AppDiv2d 996, 320 NYS2d 975 (1971), (1962).
§ 55 INSTRUCTIONS-RULES GOVERNING 62
5as Pennsylvania. Goldberg v. R. Grier 59-7 Michigan. Gordon v. Great Lakes
Miller & Sons, Inc., 408 Pa 1, 182 A2d 759 Bowling Corp., 18 MichApp 358, 171 NW2d 225
(1962). Judge Musmanno is at his best in (1969).
writing this opinion, although a trifle wordy; it 59-8 Washington. Hayden v. Insurance Co. of
includes a short essay on fact, theology, and North America, 5 Wash App 710, 490 P2d 454
jurisprudence. (1971).
88>* Tennessee. Curtis v. American Gas. Co.
of Reading, Pa , 60 TennApp 204, 445 SW2d 661
(19691.
§ 55. Definition of terms in criminal cases.
Under indictment charging defendant with assault and interfering with an
officer of the Immigration and Naturalization Service, it is enough that the
trial court instructed the jury on the definition of assault, a term of art, as the
other offenses alleged in the charge involved terms within the common
understanding of a juror.59 9
In the second Count you must find that he conspired with M. or L. or at least
one of them in order to be guilty of the conspiracy. The crime of conspiracy to
manufacture is a misdemeanor. Conspiracy is a combination of two or more
persons to accomplish a criminal or unlawful act or to do an unlawful act by
criminal or unlawful means. Conspiracy is the unlawful combination, and no
further overt act is required to constitute conspiracy.
In the crime of conspiracy, it, of course, requires a specific intent and neces-
sarily involves at least two guilty parties, if you have three, you must find in
addition to the Defendant one of the other two is also guilty and a required
criminal intent must exist in the mind of the two or more parties to the
conspiracy.60-1
All persons concerned in the commission of a crime, whether it is a felony or
misdemeanor, and whether they directly commit the act constituting the of-
fense or aid and abet in its commission, or not being present have advised and
encouraged its commission, are principals in any crime so committed. All
persons concerned in the commission of a crime, whether they directly commit
the act constituting the offense or aid and abet in its commission, though not
present, shall be prosecuted, tried and punished as principals.
To constitute a crime, there must be a combination of an act forbidden by law
and an intent to do the act. Intent may be inferred from the defendant's volun-
tary commission of an act forbidden by law, and it is not necessary to establish
that the defendant knew his act was a violation of law.69'1
The trial judge instructed the jury, in pertinent part, as follows:
"Concerning the charges of murder in Counts I and II of the information,
there are two sets of principles of law which may apply, depending on your
findings of fact.
<!The first is called the felony-murder doctrine which I will define for you and
which only applies if you find that there was a robbery or attempted robbery
committed by the defendant.
"The second set of principles contains all possible doctrines of law that can
apply to a murder charge other than the felony-murder doctrine, and I will
define these principles for you also.
63 SUBJECT-MATTER § 55
"Now first, here is the felony-murder doctrine:
"The unlawful killing of a human being, whether intentional, unintentional
or accidental, which occurs as a result of the commission or attempt to commit
the crime of robbery and where there was in the mind of the perpetrator the
specific intent to commit such crime of robbery is murder of the first degree.
"The specific intent to commit robbery and the commission or attempt to
commit such crime must be proved beyond a reasonable doubt.
"If you find that the defendant was intoxicated at the time of the alleged
offense, you should consider his intoxication in determining whether the defen-
dant had the specific intent to commit robbery." (Italics added.)
The court held that the trial judge correctly instructed on felony murder
based on homicides directly resulting from the commission of armed
robbery.13 1
In the crime charged, . . . there must exist a union or joint operation of act
or conduct and criminal intent. To constitute criminal intent it is not necessary
that there should exist an intent to violate the law. Where a person inten-
tionally does that which the law declares to be a crime, he is acting with
criminal intent, even though he may not know that his act or conduct is
unlawful13-2
It is not necessary to explain the meaning of "embezzlement" and
"fraudulent misapplication" since their meanings are well understood.15-1
"Intent" is a word in common use and thus need not be defined,15'2
"Prima facie," should not be used; the charge should say that it is for jury to
decide whether the state carried the burden of proof.153
"Prima facie case" should not be used unless found in an applicable stat-
ute.15-4
A dangerous weapon is a weapon which, either in its very nature or by reason
of the use made of it in [the] case under consideration, is capable, when used
against another, of serious bodily injury or even causing death.15-5
I charge you, ladies and gentlemen, that the prima facae (sic) evidence as just
specified in the Statute, the legal definition is as follows: Prima facae evidence
is evidence good and sufficient on its face, such evidence as in the judgment of
the law is sufficient to establish a given fact or the group or chain of facts
constituting the parties' claim or defense, and which if not rebutted or contra-
dicted will remain sufficient. It is evidence which sufficed for the proof of a
particular fact until contradicted and overcome by other evidence. Prima facae
evidence is evidence, which standing alone and unexplained would maintain
the proposition and warrant the conclusion to support which (sic) is introduced.
Ladies and gentlemen, it is incumbent upon the State to prove beyond a
reasonable doubt all of the elements of this offense. The defendant is presumed
innocent until proven guilty beyond and to the exclusion of every reasonable
doubt.15-6
The court must be careful to avoid confusion concerning felony-murder and
accomplice accountability. Accomplice accountability for the crime of murder is
different from being guilty of the crime of felony murder. The difference is the
requirement that a murder must be a forseeable consequence in accomplice
accountability: with felony murder, death must be a consequence.
In this case, the judge took care to use the term "murder" and to avoid the
term "death." He had previously carefully explained the definition of murder
§ 56 INSTRUCTIONS— RULES GOVERNING 64
and told the jury that murder was what they needed to find in fact had occurred
and that murder was a reasonably forseeable consequence.15 7
The appellate court said the use of the terms "armed" and "unarmed" within
the jury instruction was not accurate. Under the state statutory scheme,
"aggravated robbery" and "nonagravated robbery" are the more appropriate
terms. In this case, there was no error in the use of the terms since the evidence
showed there would be no confusion.
An appropriate charging portion of an instruction for "nonaggravated"
robbery would be:
"Nonaggravated robbery is defined as the unlawful taking and carrying
away of money or goods from the person of another or in his presence, without
force or violence but by putting the victim in fear of bodily injury and with
intent to steal the property."
An appropriate charging portion of an instruction for "aggravated" robbery
would be:
"Aggravated robbery is defined as the unlawful taking and carrying away of
money or goods from the person of another, or in his presence, by the use offeree
or violence on the victim or through the use of a dangerous or deadly weapon
or instrumentality, and with the intent to steal such property."
> 15.8
59-9 Federal. United States v. Varkonyi, 645 15'3 New Jersey. State v. Ruggiero, 41 NJ 4,
F2d 453 (5th Cir. 1981) 194 A2d 458 (1963).
w'1 Maryland. Mason v. State, 12 MdApp 154Iowa. State v. Kulow, 255 la 789, 123
655, 280 A2d 753 (1971). NW2d 872 (1963).
*" Arizona. State v. Beard, 107 Ariz 388, 15-5 Alaska. Berfield v. State (Alaska), 458
489 P2d 25 (1971). P2d 1008 (1969).
15U California. People v. Burton, 6 Cal3d 15>e Florida. Williams v. State (Fla), 239 S2d
375, 99 CalRptr 1, 491 P2d 793 (1971). 583 (1970).
"* California. People v. Daniels, 14 Cal3d 15-7 Maine. State v. Kimball, 424 A2d 684
857, 537 P2d 1232, 122 Cal Rptr 872 (1975). (Me 1981),
"" Texas. Seayv. State, 172 Tex Or 332, 356 15-8West Virginia. State v. Harless, 285
SW2d 681 (1961). SE2d 461 (WVaApp 1981).
15-2 Missouri. State v. Siekermann (Mo), 367
SW2d 643 (1963).
§ 56. Limitation of purpose of evidence.
For example, during the defendant's trial for assault and battery and rape
the defendant assaulted the court reporter with a pair of scissors. At a later
trial for the dangerous assault charge against the reporter, the following testi-
mony was taken from a juror who was present at the previous trial:
WQ Do you recall where you were on that date in your juror duties, where you
were located in the court building?
"A Yes, I was in the fifth seat from the back row.
WQ Do you recall where that courtroom was?
"A Yes. It was on this wing on the far side.
"Q At that time in your juror duties, could you tell us what type of pro-
ceedings you were involved in?
"A There was a rape case, assault and battery."
The court properly ordered the testimony stricken from the record and
instructed the jury to disregard the juror's comments "with regard to what the
charges were on the crimes that were involved in the previous trial." 1€U
65 SUBJECT-MATTER § 56
Out of court statements or admissions constitute evidence only against the
person making it. Such must not be considered as evidence against a
codefendant and must be disregarded by the jury in determining the guilt or
innocence of a codefendant.18 1
You are instructed that out-of-court statements admitted into evidence to
impeach the testimony of H. S. are to be considered solely for the purpose of
impeaching his credibility and are not to be considered by you as evidence for
any other purpose.20 1
A trial justice does not abuse his discretion when he fails, sua sponte, to give
a limiting instruction at the very moment of impeachment instructing the jury
that a prior, inconsistent statement can be considered by them not for its
substantive content but only as it reflects on the credibility of a witness
although the trial justice is obliged to give such a limiting instruction, the
timing of the instruction is left to his or her discretion, and may be given by
the trial justice at any time.20 2
When the defendant was charged for aggravated robbery of drugs, it was
proper to admit into evidence the details of a subsequent drug transaction
involving the defendant because the jury was properly cautioned in an instruc-
tion that the evidence was to be considered only for the limited purpose of
passing on the issues of the intent and motive of the defendant.34 1
Generally, evidence of prior bad acts or convictions may not be introduced
into evidence. However, there are the two following exceptions whereby such
evidence may, be introduced, provided the jury receives a limiting instruction
as to the purpose of the evidence;
(1) To complete the story of the crime by proving its immediate relationship
to other happenings near in time or place, and
(2) To show> by similar acts or incidents, that the act on trial was not
inadvertent, accidental, unintentional or without guilty knowledge.35'1
Ladies and gentlemen of the jury, any statement made to Officer H. by the
previous witness may be considered by you for one purpose only. You may
consider it in corroboration of the testimony of the other witnesses, if you find
that it does, in fact, corroborate them.38'1
In drug cases, evidence of other drug violations is relevant and admissible
if it tends to show plan or scheme, disposition to deal in illicit drugs, knowledge
of the presence and character of the drug, or presence at and possession of the
premises where the drugs are found.
If requested by defense counsel, the trial judge should instruct the jury as to
the limited purpose for which the evidence of other crimes is admitted, and
warn the jury not to consider it for any other purpose.38'2
164 Arkona. State v. Mulalley, 127 Ariz 92, 34>1 Colorado. People v. Kelderman, 618 P2d
618 P2d 586 (1980). 723 (ColoApp 1980).
18-1 Alaska. Sidney v. State (Alaska), 468 35J Oregon, State v. Lee, 49 OrApp 131, 619
P2d 960 (1970). P2d 292 (1980).
2(U Kansas. State v. Potts, 205 Kan 47, 468 38<1 North Carolina. State v. Dixon, 8
P2d 78 (1970). NCApp 37, 173 SE2d 540 (1970).
20-2 Rhode Island, State v. Vargas, 420 A2d m2 North Carolina. State v. Richardson, 36
809 (RI 1980). NCApp 373, 243 SE2d 918 (1978).
§ 57 INSTRUCTIONS— RULES GOVERNING 66
§ 57. Lower grade of offense.
There is only one matter for you to decide, and that is whether or not the
People have proven beyond a reasonable doubt that the defendant committed
this crime he is accused of in the information, or whether he committed a lesser
crime included within that accusation.41 1
A defendant is not entitled to a jury instruction on a lesser offense other than
that for which he is charged unless there is evidence that the elements of the
lesser offense are included within the elements of the greater charged of-
fense.412
The general rule ... is that the trial court need not, even if requested,
instruct the jury on the existence and definition of a lesser and included offense
if the evidence was such that the defendant, if guilty at all, was guilty of
something beyond the lesser offense.42 1
A defendant is not entitled to the trial court judge, sua sponte, giving an
instruction to the jury on a lesser offense unless: (1) one of the parties has
requested an appropriate instruction; (2) it is not possible to commit the
greater offense without committing the lesser offense; (3) there is evidence
introduced which would justify a conviction on the lesser offense; and (4) the
proof is in dispute to such a degree that the jury could find the defendant guilty
of the lesser offense but innocent of the greater offense. For example, in a
larceny case, the trial court did not err in refusing to instruct the jury on the
lesser included offense of larceny in the fourth degree because no evidence was
presented on the value of the property stolen, which would have determined the
applicable degree of larceny.42-2
So when you retire to the juryroom, you will have the right to consider four
possible verdicts. If you are convinced beyond a reasonable doubt that the
Defendant did, on the date mentioned, break and enter the home of Mr. S with
intent to commit the crime of larceny therein, then, of course, the Defendant
is guilty and you should bring in a guilty verdict.
Now, if you are not convinced that the Defendant is guilty of the offense in
count one, you may consider whether or not you are convinced beyond a reason-
able doubt that he did feloniously enter the premises of Mr. S without breaking
with intent to commit the crime of larceny therein. If you are not convinced
beyond a reasonable doubt that the Defendant committed that offense, you may
determine whether or not the Defendant, did on the date mentioned, enter the
premises of Mr. S, that is the dwelling-house of Mr. S without permission from
the owner.
If, on the other hand, you are not convinced beyond a reasonable doubt that
the Defendant committed or is guilty of any one of the three offenses men-
tioned, then, of course, he would be not guilty, and you should acquit him.52 1
In a murder prosecution, if substantial evidence supports a showing of lawful
provocation, the judge must instruct on manslaughter, even without defen-
dant's request.60 1
A lesser offense instruction should not be given if the defendant is guilty of
the offense charged or is innocent.60-2
Instructions on included or lesser offenses are required only if there is evi-
dentiary support for these offenses.60 3
67 SUBJECT-MATTER § 57
Possession of an illicit drug is an element of possession with intent to sell or
deliver the drug, and the former is a lesser included offense of the latter.
Where there is evidence of defendant's guilt of a lesser degree of the crime
included in the bill of indictment, defendant is entitled to have the question
submitted to the jury, even when there is no specific prayer for the instruction;
and error in failing to do so is not cured by a verdict convicting the defendant
of the offense charged, because in such case it cannot be known whether the
jury would have convicted of a lesser degree if the different permissible degrees
arising on the evidence had been correctly presented in the charge.60-4
While in some cases trial judges would be warranted in inquiring whether
defense counsel wished to submit instructions on lesser included offenses, trial
judges have no duty to give such instructions sua sponte.60 5
It is error for a trial court to fail to instruct, sua sponte, on the defense theory
of excessive force by a police officer in a prosecution for assault on a police
officer, and the conviction on the lesser included offense of resisting, delaying
or obstructing a police officer in the performance of his duty cannot stand
where an instruction on the defense theory of excessive force is not given.60 6
[I]n determining whether a charge on a lesser included offense is required,
a two-step analysis is to be used. First, the lesser included offense must be
included within the proof necessary to establish the offense charged. Secondly,
there must be some evidence in the record that if the defendant is guilty, he
is guilty of only the lesser offense.60 7
The instruction on the lesser included offense of deviate sexual conduct was
improperly modified by the trial judge due to jury inquiry during deliberation.
By amending the instruction to include "Sexual gratification may or may not
include ejaculation" and "Webster defines gratification as a source of gratifica-
tion or pleasure," the trial judge was in error; the changing of an instruction
already given to the jury before their deliberation is improper unless omitted
words are added or if the original instruction was incorrect. Here the word
inquired of was within the jury's common competence to understand, and the
original instruction was not legally insufficient.60 8
Failure to instruct on the lesser included offense of a simple robbery case was
not necessary where it was evident that one assailant was armed and the
statute makes both guilty of aggravated robbery.
The Supreme Court of Kansas found the following separate instruction on
reasonable doubt to be proper since it is a correct statement of law and no
evidence was shown that it misled the jury.
"As you have been instructed, before you can find the defendants guilty of
any offense, you must be satisfied of their guilt beyond a reasonable doubt.
Stated another way, if you have a reasonable doubt as to the existence of any
of the elements of the offense, you must acquit the defendants.
"By requiring the State to prove their case beyond a reasonable doubt it is
not meant that they are required to prove the case to a mathematical or
scientific certainty. Few, if any, things in affairs of men are capable of such
proof. All that is required is that the proof erase from the minds of the jury, any
reasonable doubt as to the guilt of the defendants." 60'9
It is error to refuse to give the instruction on manslaughter in a second
degree murder prosecution; manslaughter is necessarily a lesser included of-
fense and recklessness and intent are not inconsistent mental states.
§ 58 INSTRUCTIONS— RULES GOVERNING 68
The following self-defense Instruction was held to be a correct statement of
the law.
It Is a defense to a charge of Murder in the Second Degree that the homicide
was justifiable as defined In this Instruction.
Homicide Is justifiable when committed in the lawful defense of the slayer
when the slayer has reasonable ground to believe that the person slain intends
to Inflict death or great bodily harm and there is imminent danger of such
harm being accomplished.
The slayer may employ such force and means as a reasonably prudent person
would use under the same or similar conditions as they appeared to the slayer at
the time.
There was sufficient evidence of intoxication to allow the following instruc-
tion on intoxication to be given.
"No act committed by a person while in the state of voluntary intoxication
Is less criminal by reason of that condition, but whenever the actual existence
of any particular mental state is a necessary element to constitute a particular
kind or degree of crime, the fact of Intoxication may be taken into consideration
IB determining such mental state."1 60 10
Trial court must give the Instruction on the lesser included offense if evi-
dence Is available which would allow the jury to find guilt on such an offense.
Second degree murder and manslaughter are lesser Included offenses of first
degree murder,60 u
4!-! Michigan. People v. Mmter. 39 MichApp mA North Carolina. State v. Cloninger, 37
550, 197 NW2d 916 » 1972 n NCApp 22, 245 SE2d 192 (1978).
40 Vermont. State v. Bourn, 421 A2d 1281 605 Oregon. State v. Miller, 2 OrApp 353,
iVt 1980 1 467 P2d 683 11970).
42J Pennsylvania. Commonwealth v. *°'s California. People v. Olguin, 173
Franklin, — PaSuper — , 374 A2d 1360 < 1977 1. CalRptr 663 (CalApp 1981).
40 Connecticut. State v. Lode, 36 ^ Texas. Royster v. State, 622 SW2d 442
CcranSuper 603, 421 A2d 880 fConnSuper (TexCrimApp 198U
1980s, w-8 Indiana. Jenkins v. State, 424 NE2d
5J" Michigan. People v. Embry. 68 MichApp 1002 <Ind 1981 ).
667, 243 NW2d 711 1 19765. m-& Kansas. State v. Johnson, 634 P2d 1095
m'1 Missouri. State v. Haynes (Mo), 329 < Kan 1981).
SW2d 640 11959*. * "°"10 Washington. State v. Jones, 628 P2d
w"2 California. People v. Piccionelli, 175 472 i Wash 19811
CaIApp2d 391, 346 P2d 542 »1959i. TO"" Wyoming. State v. Selig, 635 P2d 786
m^ Missouri. State v. Washington iMo», 357 t Wyo. 1981*.
SW2d92U962>.
§ 58. Insanity of accused.
[If you believe] ... he was suffering from such a diseased and defective
condition of the mind that he was incapable of knowing the nature and conse-
quences of his act or if he did know what he was doing that he did not know
that it was wrong and that such defect of mind and reason resulted from a
diseased mind and was more than a delusion or an excess of passion or anger,
you should find the defendant . . , not guilty by reason of insanity 6Gi1
Now let me say further, that in the event that you do find the defendant not
guilty by reason of insanity, you are entitled to know his ultimate disposition
and in that respect let me read to you a section of the statute which reads in
part as follows 6ai
69 SUBJECT-MATTER § 58
. . . "Generally, when a person is charged with a criminal offense and there
is no evidence introduced concerning his mental condition, under such circum-
stances it is to be presumed that the person charged with the crime was of
sufficient mental capacity to commit it. We assume under those circumstances,
as I just recently indicated, that the man has the mental capacity to commit
a crime. The law states that in such cases there is a presumption that a person
is sane."
. . . "Consider and look at the whole evidence regarding the mental condition
of the defendant in making [the] determination [of sanity or insanity]," and
that "[t]he burden is upon the Commonwealth to prove that the defendant was
legally sane beyond a reasonable doubt ... as I have already defined for you
the meaning of proof beyond a reasonable doubt."
. . . "We have had some opinion testimony given by psychiatrists, psychol-
ogists, and we have heard other evidence as to the mental capacity of the
defendant for his acts or conduct" . . . Those who have "given special attention
and study to the field of mental infirmities and weaknesses [are] allowed to
give [their] opinion as to the mental capacity of a defendant to commit a crime"
"It doesn't follow that [they] are to usurp the function or stand in the place
of the jury." Experts' opinions are "evidence for your consideration" and "sub-
ject to the weight that the jury feels should be given to it."
The judge then told the jury that "in assessing a defendant's mental respon-
sibility for crime, the jury should weigh the fact that a great majority of men
are sane and the probability that any particular man is sane." The assessment
of mental responsibility for crime is to be made in each case in the light of the
evidence introduced, the circumstances that [the jury] have heard. As sole
judges of the credibility and weight of all evidence on the issue of insanity, the
jury "may believe, but is not compelled to believe, any . . . testimony or opinion
given by an expert."
. . . "It has been stated in our judicial decisions that it is for the jury to
determine whether or not the fact that a great majority of men are sane and
the probability that any particular man is sane may be deemed to outweigh the
evidential value of any expert testimony that [a person] is insane" "[I]t is
for the jury to determine again on all the evidence and all of the circumstances
whether the defendant did or did not lack mental capacity to commit a
crime." 7<u
If tHere is substantial evidence that defendant is relying on the defense of
diminished responsibility, the court on its own motion must instruct the jury
on this defense.73-1
The law states that no person shall be tried, sentenced, or punished for any
crime while in a state of idiocy, imbecility, lunacy, or insanity so as to be
incapable of understanding the proceedings or making a defense.
Now with respect to insanity, I instruct you as follows, that the statute
further reads: "But the person shall not be excused from criminal liability
except upon proof that at the time of committing the alleged criminal act he
was laboring under such a defect of reason from one of these causes as not to
know the nature of his act or that it was wrong."
Now, jurors, I instruct you to consider this issue of insanity under the defi-
nition in deciding whether or not the defendant E. F. K. should be excused upon
grounds of insanity for conduct which you otherwise would find to constitute
§ 59 INSTRUCTIONS— RULES GOVERNING 70
a crime. You must not find him not guilty upon the grounds of insanity unless
his insanity qualifies as insanity under that definition.73-2
**-1 West Virginia. State v Grimm, — WVa Walker, — Mass — , 350 NE2d 678 (1976).
— , 195 SE2d 637 (1973). ™'1 California. People v. Henderson, 60
68-1 McMgan. People v Plummer, 37 Cal2d 459, 35 CalRptr 77, 386 P2d 677 (1963)
MichApp 657, 195 NW2d 328 (1972). ^ Minnesota. State v. King, 286 Minn 392,
70(1 Massachusetts. Commonwealth v. 176 NW2d 279 (1970).
§ 59. Reasonable doubt.
The jury was instructed that in case the jury has a reasonable doubt whether
the defendant's guilt is satisfactorily shown defendant is entitled to an acquit-
tal; that the State has the burden of proving the defendant guilty beyond a
reasonable doubt (CALJIC No. 2.90 (3d ed.)). The jury was further instructed
that only that degree of proof is necessary which convinces the mind and directs
and satisfies the conscience of those who are bound to act conscientiously upon
it (CALJIC No. 22 (Rev.)).74 1
If you believe from the evidence, beyond a reasonable doubt, that the defen-
dant, in Conecuh County in this State, after giving birth to the child in ques-
tion, abandoned it in the public road or street, in the night, without clothes or
covering, exposed to the elements and such other dangers as might beset it, and
that she intended thereby to accomplish the death of the child, she would be
guilty of an assault with intent to murder.77 1
It is reversible error for a trial court to instruct the jury that the State, in
a criminal matter, need not establish guilt to a mathematical certainty, or to
a scientific certainty, or beyond all doubt. For example, the following instruc-
tion was held improper and constituted reversible error:
"Now, the phrase 'reasonable doubt* means exactly what those words imply.
It is a doubt based upon reason arising from an impartial consideration of all
the evidence offered to you. It is not a doubt which is merely fanciful. It is not
a doubt which is speculative. The test you must use is as follows. If you have
a reasonable doubt as to whether the State has proved any one or more of the
elements of the crime charged, then you will find the defendant not guilty.
However, if you find that the State has proved all of the elements of the offense
charged beyond a reasonable doubt, then you will return a verdict of guilty.
Now, it is not an object of this rule of proof to impose upon you the duty of
looking [sic] or examining this evidence in any strange, peculiar or extraordi-
nary way. Nor is it intended by this rule to impose upon the State an impossible
burden in establishing its case. It is a matter of common knowledge to all of
us that absolute positive certainty can almost never be attained. But bear in
mind, Members of the Jury, that the State is not required to establish guilt
beyond all doubt. That is not the State's burden. The State is not required to
establish guilt to a mathematical certainty. That is not the State's burden. .
Neither is the State required to establish guilt to a scientific certainty. The
State's burden is fully met when it has established guilt beyond a reasonable
doubt" 84'1
Evidence of good character is never a defense to a criminal act or the commis-
sion of a crime, but there has been considerable evidence in this case of good
character. You should not disregard that evidence, you should consider that
71 SUBJECT-MATTER § 59
evidence along with all of the other evidence in the case. It might generate in
your mind a reasonable doubt of the guilt of this Defendant.85 l
A reasonable doubt may arise out of a consideration of the evidence, from a
lack of or insufficiency of the evidence, or it may be engendered by a defen-
dant's statement.85 2
A reasonable doubt is not a vague or conjectural doubt. It is not a fanciful
doubt. It is not an imaginary doubt. Neither does it mean the defendant may
be innocent 86 l
A defendant in a criminal case is presumed by law to be innocent. The law
does not require a defendant to prove his innocence or to produce any evidence.
The burden of proving the defendant guilty beyond a reasonable doubt rests
upon the state. This burden never shifts. The term "reasonable doubt" means
a doubt based upon a reason. It does not mean an imaginary or possible doubt.
It is a doubt for which a reason can be given arising from an impartial con-
sideration of the evidence or lack of evidence. It means a doubt that would
cause a reasonable man to pause or hesitate when called upon to act upon the
most important affairs of life. If, after a consideration of all of the evidence, you
are convinced of the guilt of the defendant, then I instruct you that you are
satisfied beyond a reasonable doubt.89 x
The jury does not have to actually know that the defendant is guilty in order
to convict, but may convict if it believes him guilty from all the evidence in the
case beyond a reasonable doubt.95 1
The following instructions could not be condemned by the court since they
did not amount to an "Allen" charge:
"It is the duty of each juryman, while the jury is deliberating upon their
verdict, to give careful consideration to the views his fellow-jurymen may have
to present upon the testimony in the case. He should not shut his ears and
stubbornly stand upon the position he first takes, regardless of what may be
said by the other jurymen. It should be the object of all of you to arrive at a
common conclusion and to that end you should deliberate together with
calmness. It is your duty to arrive upon a verdict, if that is possible.
"You are instructed, however, that if any one of the jury after having con-
sidered all the evidence in this case, and after having consulted with his
fellow-jurymen, should entertain a reasonable doubt of the defendant's guilt,
then the jury cannot find the defendant guilty."
"I believe it is my duty to remind you that this trial has, as a matter of course,
been attended with large expense to the parties, and that you should make
every effort to agree. To aid you in the consideration of the case, I instruct you
that although the verdict to which a juror agrees must, of course, be his own
verdict, the result of his own convictions, and not a mere acquiescence in the
conclusion of his fellow jurors, yet in order to bring twelve minds to a
unanimous result, you must examine the question submitted to you with
candor and with a proper regard and deference to the opinions of each other.
You should consider that at some time the case must be decided; that you are
selected in the same manner and from the same source from which any future
jury must be selected; and there is no reason to suppose that this case will ever
be submitted to twelve men and women more intelligent, more impartial, or
§ 60 INSTRUCTIONS— RULES GOVERNING 72
more competent to decide it; or that more and clearer evidence will be produced
on the one side or the other, and with this in view, it is your duty to decide the
case, if you can conscientiously do so," 98 1
If you decide that Mr. J. did do the act, you must consider what the amount
is that was taken which, if it is under one hundred dollars, is a misdemeanor,
but if it is over one hundred dollars, is a felony. The owner of the store testified
it was one hundred and twelve dollars, I think, and eighty-one cents. The state
doesn't have to prove beyond a reasonable doubt where (every) nickel that was
taken went, or account for it, but it must prove beyond a reasonable doubt that
over one hundred dollars was taken by P. and that it was taken with the help
and aid of the defendant J.99-1
If the evidence in this case has established the guilt of the defendant to a
moral certainty in your minds — such a certainty as you would act upon in a
matter of the highest importance to yourselves — then you are convinced
beyond a reasonable doubt; but if, upon a full and fair consideration of all the
evidence in the case, or the lack of evidence, your minds still waiver and do not
settle down to an abiding conviction of guilt of the defendant, then you are not
satisfied beyond a reasonable doubt.10 1
While a charge that a reasonable doubt is a doubt which a juror could give
a reason for entertaining is not approved, it is not reversible error.16'1
Trial courts should not define "reasonable doubt."16 2
Reasonable doubt as a concept may be explained to jurors as equitable to a
judgment as to whether or not they would hesitate to undertake an important
business or personal undertaking.163
74-J California. People v. LeBianc, 23 95<1 Mississippi. Collins v. State (Miss), 202
CalAppSd 902, 100 CalRptr 493 (1972). So2d 644 ( 1967).
77-3 Alabama. Albright v. Slate, 50 AlaApp 9ai Wyoming. Alcala v. State (Wyo), 487 P2d
480, 280 S2d 186 (1973). 448 (1971).
84-1 New Hampshire. State v Aubert, 421 "a Minnesota. State v, Jordan, 272 Minn
A2d 124 (NH 1980). 84, 136 NW2d 601 (1965).
«" Alabama. Hinkle v. State, 50 AlaApp 1<X1 Iowa. State v. Estrella, 257 la 462, 133
215, 278 S2d 218 (19731 NW2d 97 (1965).
«" Georgia, Daniels v. State, 230 Ga 126, w'1 Federal, United States v. Eury, 268 F2d
195 SE2d 900 U973). 517 (1959).
m'1 Georgia. Bruster v. State, 228 Ga 651, 16'2 Oklahoma. Bell v. State (OklCr), 381
187 SE2d 297 (1972). P2d 167 (1963).
**'1 Arizona. State v. Parra, 10 ArizApp 427, 16'3 New Hampshire. State v. Button, 108
459 P2d 344 (19693. NH 279, 235 A2d 117 (1967).
§ 60, Good character as generating reasonable doubt of guilt.
Evidence of good character is never a defense to a criminal act or the commis-
sion of a crime, but there has been considerable evidence in this case of good
character. You should not disregard that evidence, you should consider that
evidence along with all of the other evidence in the case. It might generate in
your mind a reasonable doubt of the guilt of this Defendant.17 1
Although the trial court erroneously charged the jury on the weight to be
given evidence of good character and then, at the insistence of the state and
over the objection of defense counsel, recalled the jury and instructed them as
follows:
"[T]he state, well, an attorney attracted my attention, the district attorney,
to a charge I gave you on good character. It is my duty . . . that I erroneously
73 SUBJECT-MATTER § 61
gave you that charge and I believe he is probably right. . . . You are, therefore,
instructed to eliminate the charge from your mind and memory; it is not
applicable. By this charge I do not imply that the defendant has bad character
nor do I imply that he has good character. I am saying to you it is not relevant:
Therefore, it should not be taken into consideration."
this was not error because the trial court judge nevertheless instructed the jury
not to consider the issue of character in one way or another.27-1
Defendant is entitled to an instruction that character evidence alone may be
sufficient to raise a reasonable doubt as to guilt.27 2
17a Alabama. Hinkle v. State, 50 AlaApp (GaApp 1980).
215, 278 S2d 218 (1973). 27'2 Pennsylvania, Commonwealth v. Scott,
s"7*1 Georgia. Carroll v. State, 271 SE2d 650 436 A2d 607 (Pa 1981).
§ 61. Burden of proof in civil cases.
If causes other than the defendant's negligence might have produced the
harmful consequences, the plaintiff is required to exclude all such other causes
by the fair preponderance of the evidence. The plaintiff has failed to sustain the
burden of proof if on the whole evidence the question of the defendant's negli-
gence is left to conjecture. Stated another way, the plaintiff has the burden of
proving that there was greater probability that the consequences which
followed the treatment were caused by the defendant rather than proceeding
from any other cause.28 1
By way of summary, ladies and gentlemen, with regard to the second issue,
did the defendant breach the Birmingham contract, as alleged in the com-
plaint? The court instructs you that if you find from the evidence and by its
greater weight, the burden being upon the plaintiff in this issue to so satisfy
you, that the defendant, N. failed to pay the invoices submitted to them in
accordance with the paragraphs of the contract that I have previously read to
you, and that the defendant's delays or refusals to make these payments were
not reasonable delays, and that there was no bona fide dispute in existence as
to the amounts due at that time or as to the percentage of the work completed,
and if you further find from the evidence and by its greater weight that the
plaintiff had not at that time previously breached the contract, then and in that
event the court instructs you it would be your duty to answer the first issue
"yes". On the other hand, if you fail to so find, or if after considering all of the
evidence, you are unable to say where the truth lies or if you find the evidence
evenly balanced, then and in any of these events it would be your duty to
answer the second issue "no". If, however, the work had not progressed to the
point required to permit the submission of the invoices and to require payment
thereof, or if you find that under the circumstances the delays in payment, if
any, were reasonable, that is, that the defendant had reason to believe that the
work had not progressed and was not progressing according to the contract and
that the plaintiff was not under the terms of the contract entitled to submit or
to have the submitted invoices paid, at the time of their submission in accor-
dance with the provisions of the contract, then it would be your duty to answer
the second issue "no".28-2
Alibi as a defense must be established to the reasonable satisfaction of the
jury and must be such as reasonably to exclude the possibility of the presence
§ 61 INSTRUCTIONS-RULES GOVERNING 74
of the defendant at the scene of the offense at the time of its commission.283
Now, because Mr. V. has died and cannot testify, you must presume that he
was in the exercise of ordinary care for his safety at and before the time of the
occurrence, unless you find the presumption is overcome by the evidence. In
deciding whether the presumption is overcome, you must weigh the presump-
tion with all the evidence. If, after so weighing, you are unable to decide that
the presumption has been overcome, then you must find that Mr. V. was not
negligent.33 1
If the plaintiff is suffering from a loss of memory that makes it impossible
for him to recall events at or about the time of an accident, the plaintiff is not
held to as high a degree of proof as would be a plaintiff who can himself describe
the occurrence. The rule even as applied to amnesiacs does not, however, shift
the burden of proof or eliminate the need for plaintiffs to introduce evidence of
a prima facie case. The jury must rest its findings on some evidence to establish
negligence and also the absence of contributory negligence. The danger is, of
course, that amnesia is easily feigned. The dangers may be ameliorated. Plain-
tiff has the burden of proof on the issue of amnesia as on other issues. A jury
should be instructed that before the lesser burden of persuasion is applied,
because of the danger of shamming, they must be satisfied that the evidence
of amnesia is clear and convincing, supported by the objective nature and
extent of any other physical injuries sustained, and that the amnesia was
clearly a result of the accident.45 1
Defendant has the burden of proving the allegations of his counterclaim by
a preponderance of the evidence.
By a preponderance of the evidence is meant such evidence as, when weighed
with that opposed to it, has more convincing force and from which it results
that the greater probability of truth lies therein. In the event that the evidence
is evenly balanced so that you are unable to say that the evidence on either side
of an issue preponderates, that is, has the greater convincing force, then your
finding upon that issue must be against the party who had the burden of
proving it.54-1
Now, ladies and gentlemen of the jury, if you should find that the conduct
of the husband was such as would cause his wife to leave, if she was treated
with such indignities or abusement that would make it justifiable then, of
course, you would answer this issue "yes", but if you find that, from the evi-
dence and the greater weight thereof, that the husband, in this instance Mr.
B. did no act nor mistreated his wife to the extent that she was justified in
leaving, then you would answer that issue "no." 54*2
The court instructs the jury for the defendant that if you find after con-
sidering all of the evidence in this case that the evidence is evenly balanced for
the defendant and for the plaintiff, then it is your sworn duty to find for the
defendant.67-1
In the charge of the court in instructing the jury as to the liability of plaintiff
in considering the counterclaim in which defendants sought judgment against
plaintiff, the trial court erred in charging that if the evidence was equally
balanced it would be the jury's "duty to return a verdict in favor of the defen-
dantfs]." The burden of proof by the defendants on their counterclaim remained
with the defendants, and particularly so, after the main action was no longer
pending in the case.67-2
75 SUBJECT-MATTER § 61 A
I instruct you that, in order to warrant recovery, the plaintiff has the burden
of proving every element necessary to constitute the contract of service and his
wrongful discharge. That is to say, the employee must submit evidence that he
had a contract; that he was performing it; that he was ready, willing and able
to complete the contract but was precluded from doing so by premature
(wrongful) cancellation of his contract. In this case, it is conceded that the
plaintiff has a three-year contract and he was discharged after two years. On
the other hand the defendant has the burden of proving by a preponderance of
the evidence justification for the discharge. The law will not assume that an
employee has been derelict in his duty from, the fact that he has been dis-
charged; and when such an employee is a school superintendent claiming
damages for the wrongful discharge, the burden rests upon the employer to
prove substantial non-compliance with the school laws of the state, the regu-
lations or bylaws of the state department of education, or the bylaws of the
district, that is, the Skagway Board policy manual. Whether defendants have
met that burden is for you, alone, to decide.67 3
28*1 Massachusetts. Barrette v. Eight, 253 (1971).
Mass 268, 230 NE2d 808 (1967). ^ Idaho. Big Butte Ranch, Inc. v.
28-2 North Carolina. Meares v. Nixon Grasmick, 91 Idaho 6, 415 P2d 48 (1966).
CoEstr.Co,,7NCApp614,173SE2d593(1970). 54-2 North Carolina. Banks v. Banks, 8
28-3 Georgia. Sneed v. Caldwell, 229 Ga. 507, NCApp 69, 173 SE2d 631 (1970).
192 SE2d 263 (1972). 67a Mississippi. Simms v. Best (Miss), 227
33>1 Michigan. Vanden Berg v. Grand Rapids So2d 1 18 ( 1969)
Gravel Co., 42 MichApp 722, 202 NW2d 694 67"2 Georgia. Jenkins v. Lampkin, 145
(1972). GaApp 746, 244 SE2d 895 (1978).
45J New York. Schechter v. Klanfer, 28 67>3 Alaska. Skagway City School Board v.
NY2d 228, 321 NYS2d 99, 269 NE2d 812 Davis (Alaska), 543 P2d 218 (1975).
§ 61A. Instructions — Rules governing presumption of due care in
issue of contributory negligence.
Now the law says that where death occurs there is a presumption that a
person who died exercised due care, reasonable care. That is not too applicable
here because in this case both persons died — Mr. T. and Mrs. W. Now those
so-called [presumptions] are a Mexican standoff. You have to look at the facts
and circumstances to determine all of these items.
The logic of the proposition that the presumption of due care applies only on
the issue if contributory negligence speaks for itself. "Negligence as it is
commonly understood is conduct which creates an undue risk of harm to others.
Contributory negligence is conduct which involves an undue risk of harm to the
actor himself. Negligence requires a duty, an obligation of conduct to another
person. Contributory negligence involves no duty " Since the presumption
of due care is predicated upon "the instinct of self-preservation" and "has for
its motive the fear of pain or death/' it is highly relevant to the issue of
contributory negligence, which involves the actor's protection of himself, but
has no relevance to the question of primary negligence, which involves a duty
to others.68-1
§ 62 INSTRUCTIONS— RULES GOVERNING 76
68J Maryland. Todd v Weikle, 36 MdApp
663,373 A2d 104 1 1977s
§ 62. Burden of proof and presumption of innocence in crimiiial cases.
In order for you to convict the defendant of the offense charged in the infor-
mation, the State must prove by evidence before you beyond a reasonable doubt
each and all of the following: 1 2 3. That the defendant at said time
was over eighteen years of age. 4 5 ; but, if any one or more of the
foregoing matters are not thus shown by the evidence before you beyond a
reasonable doubt, then the offense charged in the information has not been
made out and you should acquit him.69'1
[I]f the state has failed to so satisfy you of those facts beyond a reasonable
doubt, it would be your duty to return a verdict of not guilty.
[B]ut if the state has failed to so satisfy you of those facts beyond a reasonable
doubt, it would be your duty to return a verdict of not guilty.69 2
The Court charges the jury that the defendant is presumed to be innocent
and this presumption is to be regarded as a matter of evidence by the jury to
the benefit of which the accused is entitled, and, as a matter of evidence, this
presumption of innocence attends the defendant until his guilt, is by the evi-
dence, proven beyond a reasonable doubt,69 3
You have been told by counsel that the defendant is innocent until proven
guilty beyond a reasonable doubt, I advise you that that is not a correct or
precise statement of the law. The defendant in this case, as in any criminal case
in Maryland, is presumed to be innocent until proven guilty beyond a reason-
able doubt. He is not clothed in innocence, but he is clothed in the presumption
of innocence.69 4
This Defendant entered into this trial clothed with a presumption of inno-
cence, which attends her as a matter of law throughout the trial and until such
time that presumption is overcome by competent, legal evidence, and she is
proven guilty beyond a reasonable doubt.69'0
"The State has a burden to prove that the defendant is guilty by what is
known as 'beyond a reasonable doubt.7 Now, you have heard the evidence, and
it has been of two types — what we call Veal1 evidence and what we call
'circumstantial ' evidence. The burden that the State has — to show that the
defendant is guilty beyond a reasonable doubt — applies to both kinds of
evidence. The burden on the State remains to prove that all of the circum-
stances shown by all the kinds of evidence that you have heard are either
inconsistent with or exclude every reasonable hypothesis of the defendant
being innocent." 69*6
The following instruction on felony murder is valid.
"The essential elements of the offense of murder in the first degree -felony
murder, each of which the government must prove beyond a reasonable doubt
are, one, that the defendant inflicted an injury or injuries on the deceased from
which the deceased died, and two, that the defendant did so while perpetrating
or attempting to perpetrate the offense of robbery." 6a?
The court properly refused to give the following requested statement; "I
charge you that in your deliberations on punishment, you are not to return a
sentence of death if you determine that the defendant . . . was not the
responsible party who pulled the trigger on the weapon which killed the victim."
77 SUBJECT-MATTER § 62
The issue of who actually fired the gun is a factor to be considered, not a
mandatory bar on the jury's imposition of the death penalty.
The appellate court held the trial judge properly refused to give the jury an
instruction placing burden of proof on the state to show an enumerated
aggravating circumstance and the lack of mitigating circumstances. The
appellate court held that the statute does not impose any such burdens of proof
with respect to mitigating circumstances.69-8
Before the defendant is entitled to an instruction on the issue of entrapment,
there must be sufficient evidence to raise such a defense. Mere inducement is
not sufficient to raise an entrapment defense under substantive law. Therefore,
no error is shown in refusing to give the instruction.69 9
Under an indictment charging defendants with conspiracy to make and
construct a destructive device, the trial court improperly instructed the jury on
possession of a destructive device. Where the government presented no evi-
dence of the offense charged in the indictment, the conviction cannot stand.69-10
It is error to instruct as follows where defendant faces two counts:
"Under the evidence in this case and the instructions which have been given
to you, if you find beyond a reasonable doubt that the defendant committed the
acts charged in the information, then you will find the defendant guilty. If you
fail to find beyond a reasonable doubt that the acts charged in the information
were committed, then you will find the defendant not guilty." 71 1
The jury was instructed that in case the jury has a reasonable doubt whether
the defendant's guilt is satisfactorily shown defendant is entitled to an acquit-
tal; that the State has the burden of proving the defendant guilty beyond a
reasonable doubt (CALJIC No. 290 (3d ed.)). The jury was further instructed
that only that degree of proof is necessary which convinces the mind and directs
and satisfies the conscience of those who are bound to act conscientiously upon
it (CALJIC No, 22 (Rev.)).71 2
The Court charges the jury that the defendant is presumed to be innocent
and this presumption is to be regarded as a matter of evidence by the jury to
the benefit of which the accused is entitled, and, as a matter of evidence, this
presumption of innocence attends the defendant until his guilt is, by the evi-
dence, proven beyond a reasonable doubt.75"1
You have been told by counsel that the defendant is innocent until proven
guilty beyond a reasonable doubt. I advise you that that is not a correct or
precise statement of the law. The defendant in this case, as in any criminal case
in Maryland, is presumed to be innocent until proven guilty beyond a reason-
able doubt. He is not clothed in innocence, but he is clothed in the presumption
of innocence.75-2
This Defendant entered into this trial clothed with a presumption of inno-
cence, which attends her as a matter of law throughout the trial and until such
time that presumption is overcome by competent, legal evidence, and she is
proven guilty beyond a reasonable doubt.75'3
A defendant in a criminal case is presumed by law to be innocent. The law
does not require a defendant to prove his innocence or to produce any evidence.
The burden of proving the defendant guilty beyond a reasonable doubt rests
upon the state. The burden never shifts throughout the trial.77 1
It is error for a court to charge as follows on an instruction involving
self-defense;
§ 62 . INSTRUCTIONS—RULES GOVERNING 78
"Now it is said, in the matter of self-defense which I have mentioned, that
we are bound to look at the testimony from the standpoint of the defendant. It
must be seen through his eyes if reasonably viewed. This is the People's
request. Self-defense in proper cases is the right of every person, but it will not
justify an attempt to take human life unless you are satisfied beyond a reason-
able doubt from testimony that an assault in fact was about to be made upon
the defendant's wife by the deceased. The term assault as here used means an
attempt or offer on the part of the deceased, with force and violence, to inflict
a bodily hurt upon another." 82>1
Although the following instruction is consistent with the principle that in
self-defense defenses a defendant's actions are to be judged from his or her own
personal impressions at the moment and not from the vantage point of a
detached juror, i.e. the "subjective test":
"It is a defense to the charge of murder that the homicide was justifiable as
defined in this instruction.
"Homicide is justifiable when committed in the lawful defense of the slayer
when the slayer has reasonable ground to believe that the person slain intends
to inflict death or great bodily harm and there is imminent danger of such
harm being accomplished.
"In determining whether or not a defendant is justified in using force against
another person in defense of her own person, the defendant, as a reasonably
and ordinarily cautious and prudent woman, may use that force which, in the
same situation, seeing what she sees and knowing what she knows, would
under the circumstances have appeared reasonable to her at the time in ques-
tion,"
when the court continued in its charge and defined great bodily harm as:
"Great bodily harm" means an injury of a more serious nature than an
ordinary striking with the hands or fists. It must be an injury of such nature
as to produce severe pain and suffering."
This was prejudicial error to the defendant and required a reversal because the
court interjected its own opinion as to what constituted "great bodily harm,"
thus making an impermissible comment on the evidence. When the court is
defining "great bodily harm" in the context of self-defense instruction, it should
charge that: "in interpreting the evidence, and in determining whether the
defendant had reasonable grounds to fear great bodily harm or imminent
death, you should look at the circumstances from the viewpoint of the defen-
dant at the time of the incident, given his or her knowledge at the time of the
incident."82-2
It is necessary for conviction that the State prove beyond a reasonable doubt
that the defendant, D.D.A., was not acting in self-defense and there is no
burden on the defendant to prove that he was acting in self-defense; and if the
evidence in this case does not establish beyond a reasonable doubt that the
defendant was not acting in self-defense, then you should find the defendant
not guilty of manslaughter.84 1
The Court instructs the Jury for the State that you do not have to know that
the defendant is guilty of the crime charged in the indictment before you would
be warranted in convicting him; all that the law requires is that you must
believe from the evidence, beyond a reasonable doubt, that he is guilty of the
crime charged, and if you so believe, then it would be your sworn duty to find
the defendant guilty as charged,84 2
79 SUBJECT-MATTER § 62A
Once a defendant affirmatively raises the issue of self-defense, it is then
incumbent upon the State to prove beyond a reasonable doubt, that defendant
was not acting in self-defense, as well as all other elements of the offense.84-3
In a case dealing with conviction for knowingly receiving, concealing and
facilitating transportation and concealment of marihuana known to have been
imported contrary to law, an instruction allowing presumption of illegal
importation from proof of possession of marihuana established by 21 U.S.C.
§ 176a was a denial of due process.84'4
If you find that the People have not established each and every element of
its case as charged by them by evidence beyond a reasonable doubt, then your
verdict would be not guilty. I will repeat. If you should find that the alibi is
sustained by the defendant, of course then he could not be at the scene of the
crime, and your verdict then would be not guilty. If you find he has not
sustained the alibi, you must still go on and determine whether the prosecutor
has proved each and every other element of the case, as I have outlined to you,
by evidence beyond a reasonable doubt.92 l
The accused does not have to prove his claim that he was elsewhere. It is
sufficient if on considering all the evidence there arises in your mind a reason-
able doubt as to his presence at the scene of the crime when it was committed.
If you do conclude that there is such a doubt, the accused is entitled to a verdict
of not guilty .... I tell you again that there is no burden on this accused to
prove himself innocent of the crime charged, but it is the state's burden to prove
him guilty beyond a reasonable doubt. And that burden rests upon the state
throughout the entire trial.92 2
Q9-1 Iowa. State v. McConnell ( la), 178 NW2d 751 Alabama. Taylor v. State, 49 AlaApp
386 (1970). 433, 272 S2d 905 (1973).
69.2 Noj-th Carolina. State v. Newsome, 7 75-2 Maryland. Mills v State, 12 MdApp 449,
NCApp 525, 172 SE2d 909 (1970). . 279 A2d 473 (1971).
69-3 Alabama, Taylor v. State, 49 AlaApp 753 Alabama. Henderson v. State, 49
433, 272 S2d 905 (1973). AlaApp 275, 270 S2d 822 (1972).
69-4 Maryland. Mills v. State, 12 MdApp 449, 77 * Arizona. State v. Mays, 105 Ariz 47, 459
279 A2d 473 (1971). P2d 307 (1969).
, 69*5 Alabama. Henderson v. State, 49 82 * Michigan. People v. Burkard, 374 Mich
AlaApp 275, 270 S2d 822 (1972). 430, 132 NW2d 106 (1965).
w-6 Maryland. Dove v. State, 423 A2d 597 82-2 Washington. State v. Painter, 620 P2d
(MdSpecApp 1980). 1001 (Wash 1980).
TO>7 District of Columbia. Ruth v. United ^ Nebraska. State v. Archbold, 178 Neb
States, 438 A2d 1256 (DCApp 1981). 433, 133 NW2d 601 (1965) .
69-8 Louisiana. State v. Sonnier, 402 S2d 650 84-2 Mississippi. Wilson v State (Miss), 234
(La 1981). S2d 303 (1970).
69-9 Mississippi. Tribbett v. State, 394 S2d 843 Illinois. People v. Smith, 58 IllApp3d
878 (Miss 1981). 784, 16 IllDec 407, 374 NE2d 1285 (1978).
69-10 Arizona. United States v. Jones, 647 84*4 Federal. United States v. Tunnell, 650
F2d 696 (6th Cir 1981). F2d 1124 (9th Cir 1981),
7i.i Arizona. State v. Parra, 10 ArizApp 427, 92 1 Michigan. People v. Nawrocki, 376 Mich
459 P2d 344 (1969). 252, 136 NW2d 922 (1965).
7L2 California. People v. LeBlanc, 23 92"2 Connecticut. State v. Bennett, 172 Conn
CalAppSd 902, 100 CalRptr 493 (1972). 324, 374 A2d 247 (1977).
§ 62A. Self-defense good faith requirement.
In determining whether the alleged conduct of the defendant was committed
in necessary defense of his person and in determining whether that amount of
force or violence used was reasonable and apparently necessary for said
purpose, you should consider all the acts and conduct of the defendant and
§ 62A INSTRUCTIONS-RULES GOVERNING 80
D.T.Mc. at the time in question; the means, nature and extent of any force or
violence, or threats of force or violence used or made by D.T.Mc. toward the
defendant, and all the facts and circumstances surrounding the occurrence, as
shown by the evidence, bearing upon the question whether the conduct of the
defendant was reasonably and apparently necessary, in good faith, to defend
his person or whether the defendant was acting in a spirit of ill will or
retaliation.93-1
The question of the existence of such danger, the necesssity or apparent
necessity, as well as the amount of force necessary to employ to resist the
attack, can only be determined from the standpoint of the defendant at the
time, and under all the existing circumstances as it may have reasonably
appeared to him at the time. Ordinarily, one exercising the right of self-defense
is required to act upon the instant, and without time to deliberate and investi-
gate and, under such circumstances, the danger which exists only in
appearance is as real and imminent as if it were actual.93 2
Although the following instruction is consistent with the principle that in
self-defense defenses a defendant's actions are to be judged from his or her own
personal impressions at the moment and not from the vantage point of a
detached juror, i.e. the "subjective test":
"It is a defense to the charge of murder that the homicide was justifiable as
defined in this instruction.
"Homicide is justifiable when committed in the lawful defense of the slayer
when the slayer has reasonable ground to believe that the person slain intends
to inflict death or great bodily harm and there is imminent danger of such
harm being accomplished.
"In determining whether or not a defendnat is justified in using force against
another person in defense of her own person, the defendant, as a reasonably
and ordinarily cautious and prudent woman, may use that force which, in the
same situation, seeing what she sees and knowing what she knows, would
under the circumstances have appeared reasonable to her at the time in ques-
tion,"
when the court continued in its charge and defined great bodily harm as:
M "Great bodily harm' means an injury of a more serious nature than an
ordinary striking with the hands or fists. It must be an injury of such nature
as to produce severe pain and suffering,"
This was prejudicial error to the defendant and required a reversal because the
court interjected its own opinion as to what constituted "great bodily harm,"
thus making an impermissible comment on the evidence. When the court is
defining "great bodily harm" in the context of a self-defense instruction, it
should charge that: "in interpreting the evidence, and in determining whether
the defendant had reasonable grounds to fear great bodily harai or imminent
death, you should look at the circumstances from the viewpoint of the defen-
dant at the time of the incident, given his or her knowledge at the time of the
incident.93-3
93-J Nebraska. State v. Archbold, 178 Neb 364 NE2d 793 (1977).
433, 133 NW2d 601 (1965). 93-3 Washington. State v. Painter, 620 P2d
93J2 Indiana. Blair v. State, — IndAppSd — , 1001 (Wash 1980).
81 SUBJECT-MATTER § 62B
§ 62B. Burden of proof by clear and convincing evidence.
You now come to the point, if you have decided some false statements that
were defamatory and some actual damage to C., and you come to this last big
hurdle, to wit: the plaintiff must satisfy you by clear and convincing evidence
that Mr. K. either knew that some of the statements in the broadcasts or all
of them were false or had serious doubts as to their truth. And, if you are unable
to find that on clear and convincing evidence, no matter how hard you have
worked over those matters that I have talked about at first, you will have to
come in with verdicts for the defendants.
You are obliged to be satisfied on clear and convincing evidence that Mr. K.
knew some statements were false or had serious doubts as to their truth
himself; not that he ought to have known, not that he ought to have had serious
doubts, but that he did have serious doubts, on clear and convincing evidence,
which I will now address myself to.
This is what the Supreme Judicial Court says is clear and convincing evi-
dence for a jury: "... a degree of belief greater than the usually imposed burden
of proof by a fair preponderance of the evidence, but less than the burden of
proof beyond a reasonable doubt imposed in a criminal trial."
The Court also says:
"There must be sufficient clear and convincing evidence that the defendant
in fact entertained serious doubts as to the truth of his publication. The test
is entirely subjective. That a reasonably prudent person should have enter-
tained serious doubts is not sufficient."
"In order to negate the privilege" — that is to say, the First Amendment
privilege, the freedom of the press — "the jury must find on clear and
convincing evidence that such doubts were in fact entertained by the defendant
himself. The jury may of course reach such a conclusion on the basis of infer-
ences drawn from objective evidence, since it would perhaps be rare for a
defendant to admit to himself having had serious doubts."
Now, plainly, from what the Court says, what you have here is some ground
of proof higher than a fair preponderance of the evidence but lower than beyond
a reasonable doubt, and the best I could suggest to you, I think, in trying to
apply this burden of proof against the plaintiff is: ten of you are going to have
to be satisfied that it is highly probable on evidence that is clear to you that
Mr. K. personally seriously doubted the truth of some or all of the statements
made in the broadcasts.
The word "convincing" after the word "clear" — "clear and convincing" —
suggests to me that there should not be too much room for argument among
reasonable men and women under the standard of clear and convincing proof;
and I think, if I said more on this, I would create more error than perhaps I
already have.
But let me leave it with you that it plainly is a burden that is higher than
just more probable than not. It plainly is a burden that is less than beyond a
reasonable doubt, but there is no doubt that it is a greater burden than simply
more probable than not.93"4
93A Massachusetts. Callahan v.
Westinghouse Broadcasting Co., Inc., — Mass
-, 363 NE2d 240 (1977).
§ 64 INSTRUCTIONS-RULES GOVERNING 82
§ 64. Circumstantial evidence in criminal cases.
If you are convinced by the evidence in this case beyond a reasonable doubt
that the act alleged as the crime with which the defendant is here charged was
in fact committed, and you further find that immediately or soon thereafter the
defendant fled from the place where such act is alleged to have been committed,
then the flight of the defendant is a circumstance to be considered by the jury,
together with other evidence in the case. It is not sufficient in itself to establish
the guilt of the defendant, but its weight as evidence is a matter for the jury
to determine in connection with all the other facts in the case." l
Although the instant case involved circumstantial evidence, the trial judge
chose to omit a charge on that subject. A charge on circumstantial evidence is
required only when the case is wholly dependent thereon. Hence, due to the
trial judge's omission to make a thorough charge we are therefore required to
determine whether the evidence in this case against the defendant is wholly
circumstantial ,
The victim testified "that during the rape her attacker spoke to her on several
occasions. She further testified that she had known the defendant prior to the
rape and heard him speak on many occasions and that she recognized the voice
of her attacker as being that of the defendant. She was unable to see her
attacker because a sheet had been wrapped over her head and around her neck.
Wigmore in his treatise on evidence has stated there is no substantial dis-
tinction to be made between direct and opinion evidence, nor any valid reason
therefor. Georgia defines direct evidence as: ffthat which immediately points to
the question at issue." . . . [D]irect evidence comes from an eye witness or one
who speaks directly of his own knowledge, which knowledge he perceives
through his senses, especially sight and hearing. The evidence showing the
identity of a witness is normally classified as direct. However, in Georgia we
have a line of cases which under the peculiar circumstances thereof have led
to the description of identity evidence as being of the opinion type. Other cases
have indicated, although have not so stated, that this is not necessarily true,
especially where the witness is testifying of his own knowledge.
Defendant argues that since identity is a matter of opinion that the evidence
given was not direct but was circumstantial and therefore the entire evidence
presented against the defendant was circumstantial in nature. Because we are
not empowered to modify the language contained in opinions of the Supreme
Court, we will make no effort to -determine whether under the facts of this case
the evidence given was opinion as opposed to direct. Instead, what we do find
is that it was not circumstantial evidence within the definition embodied in the
Code, which is: "Indirect or circumstantial evidence is that which only tends
to establish the issue by proof of various facts, sustaining by their consistency
the hypothesis claimed."
In short, between the categories of direct and circumstantial evidence, we
think the evidence given in this case would fall within the broad scope of direct
evidence since it was based on the witness' prior knowledge with regard to the
defendant and was based on the perception of her senses, in this case, her
hearing. We therefore find, after much difficulty, that the trial judge did not
err in failing to include a charge on circumstantial evidence in his instructions
to the jury.8-1
83 SUBJECT-MATTER § 64
Circumstantial evidence is defined as being proof of facts and circumstances
from which another fact may be presumed or inferred.9 1
It is shown by the testimony, and undisputed in the record, that at the time
the defendant was being held at the police station in Mt. Pleasant on the charge
for which he is now on trial, he was requested by Patrolman W. and also by Dr.
C. to have blood or urine tests to determine alcoholic content, which requests
were refused.
You are instructed that in this case defendant's refusal to submit to any test
is a circumstance to be considered by the jury, together with all other facts and
circumstances shown by the evidence, in determining the question as to
whether the defendant was or was not intoxicated at the time involved in this
case.12-1
Circumstantial evidence is legal evidence and a crime or any fact to be
proved may be proved by such evidence. A well connected chain of circum-
stances is as conclusive, in proving a crime or fact, as is positive evidence. Its
value is dependent upon its conclusive nature and tendency.
Circumstantial evidence is governed by the following rules:
1. The circumstances themselves must be proved beyond a reasonable doubt;
2. The circumstances must be consistent with guilt and inconsistent with
innocence;
3. The circumstances must be of such a conclusive nature and tendency that
you are convinced beyond a reasonable doubt of defendant's guilt.
If the circumstances are susceptible of two equally reasonable constructions,
one indicating guilt and the other innocence, you must accept the construction
indicating innocence.
Circumstances which, standing alone, are insufficient to prove or disprove
any fact may be considered by you in weighing direct and positive testi-
122
mony.
A charge on circumstantial evidence is required only when the evidence of
the main fact that is essential to the guilt or innocence of the defendant is
purely and entirely circumstantial in nature.12-3
It is not necessary to charge on circumstantial evidence if there is direct
evidence upon which the jury could find the accused guilty or not guilty.14'1
Failure of the trial court to charge on circumstantial evidence without
request is not error, if the conviction does not depend wholly on circumstantial
evidence.14'2
It is not error to not charge on circumstantial evidence if the state relies on
direct evidence and not circumstantial evidence primarily,14 3 where as in the
present case the State's case against the defendant was not dependent entirely
upon circumstantial evidence, it was not error to fail to charge on circumstan-
tial evidence.14*4
An instruction on the weight of evidence is not necessary if the judge
properly instructs on the standards of reasonable doubt.14"5
If the state substantially or wholly relies on circumstantial evidence, the
trial court on its own motion must instruct on the effect of circumstantial
evidence.14'6
§ 66 INSTKUCTIQNS-RULES GOVERNING 84
"^Washington. State v. Gregory, 79 14A Tennessee. Birdsell v. State, 205 Term
Wash2d 637, 488 P2d 757 (1971). 631, 330 SW2d 1 (1959).
8<1 Georgia. Cowans v. State, 145 GaApp 14'2 Georgia. Bobo v. State, 101 GaApp 48,
693, 244 SE2d 624 (1978). 112 SE2d 679 (1960).
o-1 Nebraska. State v. Carr, 182 Neb 308, 14-3 Florida. Flint v. State (FlaApp), 117 S2d
154 NW2d 526 (1967). 552 (1960).
1JU Iowa. State v. Holt, 261 la 1089, 156 14'4 Georgia. Walker v. State, 226 Ga 292,
NW2d 884 (1968). 174 SE2d 440 (1970).
12-2 Florida. Willcox v State (Fla App), 258 H>5 Federal. United States v. Whiting, 311
S2d 298 (1972). F2d 191 (1962).
12-3 Texas. Faulk v. State, 608 SW2d 625 14-6 California. People v. Masters, 219
(TexCrimApp 1980). CalApp2d 672, 33 CalRptr 383 (1963).
§ 66. Inferences from flight.
If you are convinced by the evidence in this case beyond a reasonable doubt
that the act alleged as the crime with which the defendant is here charged was
in fact committed, and you further find that immediately or soon thereafter the
defendant fled from the place where such act is alleged to have been committed,
then the flight of the defendant is a circumstance to be considered by the jury,
together with the other evidence in the case. It is not sufficient in itself to
establish the guilt of the defendant, but its weight as evidence is a matter for
the jury to determine in connection with all the other facts in the case.18 1
The Court charges you that the flight of a person from the scene of an offense
is not substantive proof or substantive evidence of guilt. In other words, it may
not, it is not a circumstance sufficient in itself to establish guilt, as it may be
quite as consistent with innocence of the defendant.26"1
1<u Washington. State v. Gregory, 79 2Aml Michigan. People v. Jones, 1 MichApp
Wash2d 637, 488 P2d 757 (1971). 633, 137 NW2d 748 (1965).
§ 66A. Inferences from failure to testify,
Where appellant claimed it was error for judge to give the following instruc-
tion since it did not include a statement that "no inference of guilt may be
drawn from or sinister meaning be attached to failure of defendant to testify."
Held: Recent United States Supreme Court decisions forbid comment by judge
or counsel on failure of an accused to testify. They do not require favorable
charging by judge. In absence of a statutory provision exactly on point, there
is no inherent constitutional right running in favor of appellant's contention.
"Now, in this particular case, the defendant did not take the stand. By doing
so, the court must charge you at this time that by not taking the stand and
testifying in this case, the accused has exercised his constitutional right
because, as I told you before, it is the burden of the state to prove him guilty
beyond a reasonable doubt. He does not have to prove that he did not commit
this offense with which he stands charged." 26 2
**•* Connecticut. State v. Powers, 4 ConnCir
520, 236 A2d 354 (1967). See also § 42, supra.
85 SUBJECT-MATTER § 67
§ 67* Confessions in criminal cases.
A confession should not be given any consideration by you unless you
unanimously find that the confession was voluntarily made and that the defen-
dant in making it was first informed of his constitutional right to remain silent
if he wished and that he was entitled to the benefit of advice from a lawyer at
all times. A confession even if admittedly true cannot be used to prove guilt
unless it was voluntarily made,
A confession made under inducement may be considered by you. By induce-
ment is meant promises to do a favor for the accused, such as for instance not
prosecuting some person for a crime. If you believe such promise was made in
this case, you should scrutinize the confession with great care and caution so
as to void any possible chance that one should be convicted on evidence of a
confession which is not true.28 1
Confessions are deemed to be prima facie involuntary and the burden rests
on the state to show that they were made voluntarily and not the product of
any coercion. Although the Arizona Revised Statutes Annotated, § 13-3988
(1977 & Supp. 1981), provides that:
"A, In any criminal prosecution brought by the state, a confession shall be
admissible in evidence if it is voluntarily given. Before such confession is
received in evidence, the trial judge shall, out of the presence of the jury,
determine any issue as to voluntariness. If the trial judge determines that the
confession was voluntarily made it shall be admitted in evidence and the trial
judge shall permit the jury to hear relevant evidence on the issue of
voluntariness and shall instruct the jury to give such weight to the confession
as the jury feels it deserves under all the circumstances" and although the
court could have used a standardized instruction on voluntariness contained in
Arizona Revised Statutes Annotated, § 13-3988CA) (1977 & Supp. 1981), the
failure to give such an instruction was not prejudicial error, and the following
instruction on voluntariness was held proper and not prejudicial to the defen-
dant:
"You must not consider any statements made by the defendant to a law
enforcement officer unless you determine beyond a reasonable doubt that the
defendant made the statements voluntarily.
The defendant's statement is not voluntary whenever a law enforcement
officer used any sort of violence or threats or any promise of immunity or
benefit."28'2
The trial court errs by failing to instruct that the jury determines first
whether a confession was voluntarily made, and second, if it was voluntary,
was it true.38'1
The final determination of the voluntariness of a confession is for the jury.38*3
2ai Washington. State v. Toliver, 5 349 P2d 781 (1960).
WashApp 321, 487 P2d 264 (1971). 38'2 Reserved.
282 Arizona. State v. Brooks, 127 ArizApp 38'3 Hawaii. State v. Shon, 47 Haw 158, 385
130, 618 P2d 624 (1980). P2d 830 (1963).
Sfu Arizona. State v. Pulliam, 87 Ariz 216,
§ 68 INSTRUCTIONS— RULES GOVERNING 86
§ 68. Credibility of witnesses — Interest of witnesses — Falsus in uno,
falsus in omnibus.
If you should believe from the testimony in this case that any witness or
witnesses has or have wilfully and intentionally testified falsely to any mate-
rial matters or facts in this case, intending by such false testimony to mislead
and deceive as to the truth in the case, you may under such belief disregard the
whole or any part of the testimony of such witness or witnesses if, in your
opinion, you are justified in so doing.
4al Indiana. Banks v. State, 261 lad 426, 351
NE2d 4 (1976).
§ 69. Credibility of witnesses in criminal cases — Interest of witnesses
— Falsus in uno, falsus in omnibus.
It is for you to determine the weight and credit to be given the testimony of
each witness. You have a right to use that knowledge and experience which you
possess in common with men in general, in regard to the matter about which
a witness has testified. You may take into account his ability and opportunity
to observe and know the things about which he or she has testified, his
memory, manner and conduct while testifying, any interest he may have in the
result of this trial, and the reasonableness of his testimony, considered in the
light of all the evidence in this case.66'1
Paid police informants are a special class of witnesses, and in a trial of
defendant for aggravated robbery it was held proper for the court to give the
jury a general instruction on witness credibility when testimony of paid police
informants was given.66'2
"If any witness testifying has been impeached, then the jury may disregard
his testimony, unless his testimony is corroborated by the testimony [which is]
not so impeached." 67>1
As a general proposition, the trial court has discretion in charging the jury,
and the instructions will be held proper and non-prejudicial so long as that,
considering them in their entirety, they accurately, properly, and fairly state
the law as applied to the facts in the case. This discretion extends to refusal of
requests and to cautionary instructions as well. For example, when testimony
was offered against the defendant by an accomplice that had turned State's
evidence, it was held proper and not prejudicial error for the court to refuse to
give the following standardized jury instruction on accomplices:
"An accomplice witness is one who testifies that he was involved in the
commission of the crime with which the defendant is charged. You should
consider with caution testimony of an accomplice if it is not supported by other
evidence" [emphasis supplied] and instead to give the following instruction
relating to the credibility of witnesses in general and not specifically men-
tioning the need to corroborate accomplice testimony:
'It is for you to determine the weight and credit to be given the testimony
of each witness. You have a right to use that knowledge and experience which
you possess in common with men in general, in regard to the matter about
which a witness has testified. You may take into account his ability and
opportunity to observe and know the things about which he or she has testified,
87 SUBJECT-MATTER § 69
his memory, manner, and conduct while testifying, any interest he may have
in the result of this trial, and the reasonableness of his testimony considered
in the light of all the evidence in this case.
"If you find that any witness has willfully testified falsely concerning any
material matter, you have a right to distrust the testimony of that witness in
other matters, and you may reject all or part of the testimony of that witness,
or you may give it such weight as you think it deserves. You should not reject
any testimony without cause." 68 1
Utah Code Annotated, § 77-31-18 (1979 & Supp. 1981), expressly permits
giving a cautionary instruction whenever the prosecution relies on the
uncorroborated testimony of an accomplice:
"Conviction on uncorroborated testimony of accomplice — Cautionary
instruction. — (DA conviction may be had on the uncorroborated testimony
of an accomplice.
(2) In the discretion of the court, an instruction to the jury may be given to
the effect that such uncorroborated testimony should be viewed with caution,
and such an instruction should be given if the trial judge finds the testimony
of the accomplice to be self contradictory, uncertain, or improbable." 92 1
Although it is better practice to give a cautionary instruction on the testi-
mony of an accomplice, it is not reversible error to fail to do so unless the
instruction was requested.3 l
A judge is well advised to instruct the jury to scrutinize with special care the
testimony of accomplices. But failure to so caution is ground for reversal only
if it has resulted in substantial prejudice.3 2
An accomplice testifying for the prosecution is generally regarded as an
interested witness, and a defendant, upon timely request, is entitled to an
instruction that the testimony of the accomplice should be carefully
scrutinized. Since an instruction to carefully scrutinize an accomplice's testi-
mony is a subordinate feature of the trial, the trial judge is not required to so
charge in the absence of a timely request for the instruction. But when a
defendant makes a request in writing and before argument to the jury for an
instruction on accomplice testimony, the court should give such instruction.
And once the judge undertakes to instruct the jury on such subordinate issue
it must do so accurately and completely. The court, however, is not required to
give the requested instruction in the exact language of the request, but is only
required to give such instruction in substance.
In present case, concerning Clark, the trial judge instructed the jury:
"Now, as to the witness Clark, I instruct you that he is in Law what is known
as an accomplice. And our Court has said that a person may be convicted on
the unsupported testimony of an accomplice, if that testimony is believed by
the Jury. However, in considering the weight and credibility you will give to
the testimony of Clark, I instruct you that you should carefully examine his
testimony for the purpose of determining what weight and credibility it
deserves. You should scrutinize it with care, all to the end that you will deter-
mine whether he is truthful or not, because in Law, an accomplice does have
an interest and bias in the case and in what your verdict will be.
"So, Members of the Jury, it's dangerous to convict upon the testimony of an
accomplice but if you find that he is truthful, then you may, if you are satisfied
from the evidence and beyond a reasonable doubt, convict upon his
unsupported testimony." 3'3
§ 70 INSTRUCTIONS— RULES GOVERNING 88
"The fact that an accomplice hopes for or expects mitigation of his own
punishment does not disqualify him from testifying." Promises of assistance
may affect the credibility of the witness; they do not render the witness incom-
petent.3-4
Now, you may find that a witness is interested in the outcome of this trial.
In deciding whether you will believe or disbelieve the testimony of any such
witness, you may take his interest into account. If after doing so you believe
his testimony in whole or in part, you should then treat what you believe the
same as any other believable evidence in the case. Defendant argues that since
the female prosecutor and the male defendant were the only important wit-
nesses in the case, "this charge has the effect of making the jury scrutinize and
hold the male defendant's testimony up to a higher standard to determine
whether he was telling the truth. The use of the masculine pronoun 'his' could
also have led the jury to believe that the judge was expressing his opinion that
the testimony of the male defendant should be more carefully scrutinized than
that of other witnesses." B 5
s, State v. Parrish, 205 Kan 33, 468 118 NW2d 332 (1962); State v. Henry, 174 Neb
P2d 150 (1970). 432, 118 NW2d 335 (1962).
^ Colorado. People v. Kelderman, 618 P2d 3l2 Federal United States v. Cianchetti, 315
723 (ColoApp 1980). F2d 584 (1963).
w>1 Alabama. Stockord v. State, 391 S2d 3-3 North Carolina. State v. Abernathy, 295
1060 (Ala 1980). NC 244, 244 SE2d 373 (1978).
6&1 Kansas. State v. Ferguson, 288 Kan 522, 3'4 North Carolina. State v. Edwards, 37
618 P2d 1186 (1980). NCApp 47, 245 SE2d 527 (1978).
*" Utah. Utah v, Hallett, 619 P2d 335 (Utah 3'5 North Carolina, State v Poole, 289 NC
1980). 47, 220 SE2d 320 (1975).
*•* Nebraska. State v. Brown, 174 Neb 393,
§ 70. Failure of party to testify in his own behalf or call material wit-
Bess.
Members of the jury, I charge you if you find that a party to this action had
a material witness or evidence available to him which he would naturally be
expected to produce in court and which was not available to the adverse party,
then you may infer if you think it reasonable and fair for you to do so, that such
evidence if produced would have been unfavorable to the party failing to pro-
duce it.7'1
In this case the defendants called no witnesses. All that means is that you
base your conclusions on the testimony that you heard. . . .
. . . Any defendant has a perfect right to conclude it isn't necessary to call his
own witnesses after the plaintiff has called witnesses to testify
So that all it means here is that you base your conclusions on the testimony
you heard. It doesn't make any difference whether they were called by the
plaintiff or the defendant. In this case, none were called by the defendants.8 x
If a party fails to call a witness, then, pursuant to the Secondino rule in
Connecticut, an adverse party is entitled to request from the trial judge an
instruction which would permit the jury to draw an inference that the testi-
mony of the witness would have been unfavorable to the party's cause, provided
that there is evidence before the jury that (1) the witness is available, and that
89 SUBJECT-MATTER § 70
(2) the witness not called was one the party naturally would have produced
during the course of the trial. For example, the following charge is a correct
adverse inference instruction:
"In the course of the argument of this case, attention was called to the failure
to call certain witnesses who it was claimed might by their testimony have
thrown light upon the situation before you. Where a party fails to call to the
stand a witness who is within his power to produce and who would naturally
have been produced by him, you are entitled to infer that had he testified, that
testimony would have been unfavorable to the party failing to call him, and to
consider that fact in arriving at your decision.
"However, requirements for such an inference that he could furnish material
evidence, is that the witness must be available, and he must be a witness whom
the party would naturally call. It is a witness who would naturally be produced
by a party which is one known to that party and by reason of his relationship
to that party or to the issues or both, could reasonably be expected to have
peculiar or superior information which was material to the case which a
favorable party would produce but hasn't, the failure of a party to call a person
as a witness who is available, and you must find all these elements present in
the record, to both parties, and who does not stand in such a relationship to the
party in question or to the issues, so that the party would naturally be expected
to produce him if his testimony was favorable affords no basis for unfavorable
inference.
"The plaintiff, Keys, testified that he spoke with Mr. Mercier, a used car
salesman at Coppola two days after purchasing the car, and claims that Mr.
Mercier is a witness whom Coppola Ford would naturally be expected to call
because of his relationship with Coppola Ford and the fact that the plaintiff
driver spoke with him regarding the functioning of the Ford, not necessarily
about the brakes in this case because on this occasion he complained of noises
in the motor and the transmission; so I charge you that since Coppola did not
call Mercier to testify, you may infer that the reason he was not called was
because his testimony would have been unfavorable to defendant.
"It is not enough for defendant, Coppola, that plaintiff could have produced
Mr. Mercier by subpoena. He was a witness whom the defendant, Coppola,
would normally have called." 12>1
In New Jersey, the better practice is to inform the judge and opposing counsel
that a request will be made for such an instruction. This gives the opposing
party an opportunity to either call the witness or give reasons for failure to
call.19-1
"The requirements of the absent material witness instruction should be
narrowly construed to be applicable only to those cases where the failure to call
a witness leads to a reasonable conclusion that the party is unwilling to allow
the jury to have the full truth." [From Ballard v. Lumbermens Mutual Casu-
alty Co., 33 Wis2d 601 at 615, 616, 148 NW2d 65 at 73 (1967).] 19-2
The trial judge erred in giving the preliminary instruction of defendant's
failure to testify over the defendant's objection to it being read. The appellate
court said the giving of the instruction over defendant's objection was in error
because it undermined the Fifth Amendment principle of the right to remain
silent by causing speculation among jurors' as to defendant's silence.19*3
§ 71 INSTRUCTIONS— RULES GOVERNING 90
The lower court's instruction given to the jury at prosecution's request
stated, in essence, that the defendant's unexplained failure to present a sup-
posed alibi witness would infer that said witness would not corroborate the
testimony before the jury. This was held to be improper where the appellate
court found no evidence to permit such an inference. There was no evidence
that said witness was physically available as a witness to either the prosecu-
tion or the defense, much less that only the defendant could know of the
whereabouts of the witness.
Since the lower court refused to instruct that the witness was unavailable to
either side, the jury could have assumed that only the defendant knew of the
witness' whereabouts.194
In order for a trial judge to properly give a missing witness instruction, the
judge must know: (1) the witness' testimony will be likely to elucidate the
transaction at issue; and (2) the witness is peculiarly available to the party who
failed to call him. If there is proof that one of the parties has attempted but
failed to locate the witness, the instruction is not appropriate.195
7-1 North Dakota. Kuntz v, Stelmachuk 19-2 Wisconsin. Victorson v, Milwaukee &
(ND), 136 NW2d 810 (1965). Suburban Transport Co., 70 Wis2d 336, 234
a-1 Maryland. Lunsford v. Board of Educ. of NW2d 332 (1975)
Prince George's County, — MdApp — , 374 A2d 19'3 Indiana. Lee v. State, 424 NE2d 1011 (Ind
1162(1977). 1981)
13U Connecticut. Nichols v. Coppola Motors 19'4 Maine. State v. Whitman, 429 A2d 203
Inc., 178 Conn 335, 422 A2d 260 (1980). (Me 1981).
laiNew Jersey. State v. Clawans, 38 NJ 19-5 District of Columbia. Harris v. United
162, 183 A2d 77 (1962). States, 430 A2d 536 (DCApp 1981)
§ 71. Failure of defendant in criminal case to testify or call witness OF
produce evidence. *
In the absence of statutory provisions directly on point, there is no inherent
constitutional right running in favor of a defendant which would require a
judge to charge the jury with a favorable instruction, such as "no inference of
guilt may be drawn from or sinister meaning be attached to defendant's failure
to testify." It is sufficient to instruct as follows; Now, in this particular case,
the defendant did not take the stand. By doing so, the court must charge you
at this time that by not taking the stand and testifying in this case, the accused
has exercised his constitutional right because, as I told you before, it is the
burden of the state to prove him guilty beyond a reasonable doubt. He does not
have to prove that he did not commit this offense with which he stands
charged.20"1
You are to draw no conclusions or inferences from the fact that the defendant
has not testified in this case, and you are entitled to draw no conclusion or
inferences as to his reasons in that regard.20 2
Therefore, you must be very careful not to allow his silence to influence your
decision in any way.20-3
It is reversible error for a trial court to refuse to give the requested instruc-
tion (on defendant's refusal to testify) at the punishment stage of the trial in
a bifurcated action even if the trial court had so instructed the jury during the
guilty-or-innocent stage.20"4
91 SUBJECT-MATTER § 72
^ Connecticut. State v. Powers, 4 ConnCir 20*3 North Carolina. State v. Phifer, 17
520, 236 A2d 354 (1967). NCApp 101, 193 SE2d 413 (1972).
20-2 Nebraska. State v. Kennedy, 189 Neb 20-4 Texas. Brown v. State, 617 SW2d 234
423, 203 NW2d 106 (1972). (TexCriraApp 1981).
§ 71 A. Failure of prosecution in criminal case to call witness or pro-
duce evidence.
Defendant's second claim of error is in the refusal of his requested instruc-
tion that the state's failure to call as witnesses three police officers who
testified before the grand jury, and the minutes of such testimony were
attached to the indictment, justified an inference their testimony, if given at
the trial, would have been detrimental to the state.
The showing that the three officers not called at the trial were on vacation,
together with the fact their testimony would have been only cumulative,
furnished a plausible explanation for absence of their testimony.30"1
30a Iowa. State v. Williams, 261 la 1133, 155
NW2d 526 (1968).
§ 72. Alibi in criminal cases.
The court instructs the jury that in this case what is known in law as an
"alibi," that is, that the defendant was at another place at the time the crime
charged in the information was committed, is relied upon by the defendant; and
the court instructs the jury that such a defense is as proper and legitimate, if
proved, as any other, and all the evidence bearing upon that point should be
carefully considered by the jury, and if, in view of all the evidence, the jury
have any reasonable doubt as to whether the defendant was in some other place
when the crime was committed, they should give the defendant the benefit of
the doubt and find him not guilty.31-1
Alibi is not a defense within any accurate meaning of the word "defense" but
is a mere fact which may be used to call into question the identity of one person
charged or the entire basis of the prosecution.31-2
An accused, who relies on an alibi, does not have the burden of proving it.
It is incumbent upon the State to satisfy the jury beyond a reasonable doubt
on the whole evidence that such accused is guilty. If the evidence of alibi, in
connection with all the other testimony in the case, leaves the jury with a
reasonable doubt of the guilt of the accused, the State fails to carry the burden
of proof imposed on it by law, and the accused is entitled to an acquittal.33'1
[A]libi as a defense should be established to the reasonable satisfaction of the
jury but not necessarily beyond a reasonable doubt.33 2
Alibi as a defense, involves the impossibility of the accused's presence at the
scene of the offense at the time of its commission; and the range of the evidence
in respect to time and place must be shown as reasonable to exclude the
possibility of the accused's presence. The court instructs you that the evidence
presented to prove alibi, considered alone or with all the other evidence, need
only be sufficient to create a reasonable doubt of the defendant's guilt.33-3
The defendant is not entitled to a separate jury instruction on the alibi
defense so long as adequate and proper instructions were given on (1) the
elements of the crime charged and on (2) the burden of the prosecution to prove
the guilt of the defendant beyond a reasonable doubt.33-4
§ 72 INSTRUCTIONS-RULES GOVERNING 92
The burden is on the defendant to establish his alibi, not beyond a reasonable
doubt but to the reasonable satisfaction of the jury that the defendant was
elsewhere when the alleged crime was committed. If you believe that the
defendant has established, to your reasonable satisfaction the defense of alibi,
it would be your duty to acquit the defendant.44 1
Alibi as a defense should be established to the reasonable satisfaction of the
jury....4*2
The burden is on the defendant to establish his alibi, not beyond a reasonable
doubt but to the reasonable satisfaction of the jury that the defendant was
elsewhere when the alleged crime was committed. If you believe that the
defendant has established, to your reasonable satisfaction the defense of alibi,
it would be your duty to acquit the defendant.45 l
The accused does not have to prove his claim that he was elsewhere. It is
sufficient if on considering all the evidence there arises in your mind a reason-
able doubt as to his presence at the scene of the crime when it was committed.
If you do conclude that there is such a doubt, the accused is entitled to a verdict
of not guilty ... I tell you again that there is no burden on this accused to prove
himself innocent of the crime charged, but it is the state's burden to prove him
guilty beyond a reasonable doubt. And that burden rests upon the state
throughout the entire trial.45 2
Alibi is not a defense within any accurate meaning of the word "defense" but
is a mere fact which may be used to call into question the identity of one person
charged or the entire basis of the prosecution.46-1
The Pennsylvania Supreme Court has recently announced a new ruling on
alibi instructions. The rule seems to be that the trial judge must omit any
reference to the defendant's burden of proving his alibi. Instead the judge is
simply to instruct the jury to consider the alibi evidence along with all the
other evidence in determining if the state has proven all the essential elements
of the crime. Alibi evidence, either alone or with other evidence, may be suffi-
cient to raise a reasonable doubt.47"1
It is not error to refuse to give an alibi instruction, if the defendant's alibi
evidence fails to cover a material part of the time within which the crime must
have been committed.47"2
It is erroneous to charge that the defendant has the burden by a
preponderance of the evidence to prove the defense of alibi. An alibi is not an
affirmative defense, but a denial of any connection with the crime. So if the
proof of alibi, either by itself or with other facts in the case, raises a reasonable
doubt of defendant's guilt, he must be acquitted.47'3
It is not error to fail to give an alibi instruction for defendant if he fails to
request it,47-4
It is not error to fail to instruct, on alibi, if no request is made.47 5
31-1 Colorado. McGregor v. People, 176 Colo 33'3 Georgia. White v. State, 231 Ga 290, 201
309, 490 P2d 287 (1971). SE2d 436 (1973).
31-2 North Carolina. State v. Cook, 280 NC 33A Kansas. State v. Dailey, 228 Kan 566,
642, 187 SE2d 104 (1972). 618 P2d 833 (1980).
33a North Carolina. State v. Hunt, 283 NC 44** Georgia. Morrison v. State, 126 GaApp 1,
617, 197 SE2d 513 (1973). 189 SE2d 864 (1972).
s3-2 Georgia. Holcomb v. State, 128 GaApp . ^ Georgia. Trimble v. State, 229 Ga 399,
238, 196 SE2d 330 (1973). 191 SE2d 857 (1972).
93 SUBJECT-MATTER § 73
45>1 Georgia. Morrison v. State, 126 GaApp 47 2 Illinois. People v. Ashley, 18 I112d 272,
1, 189 SE2d 864 H972). 164 NE2d 70 (I960).
45-2 Connecticut. State v. Bennett, 172 Conn 47-3 Delaware. Halko v. State, 54 Del 180,
324, 374 A2d 247 (1977). 175 A2d 42 (1961).
46-J North Carolina. State v. Cook, 280 NC 47-4 Federal. United States v. Stirone, 311
642, 187 SE2d 104 (1972). F2d 277 (1962).
47>1 Pennsylvania. Commonwealth v. 47-5 Missouri. State v. Westfall (Mo), 367
Bonomo, 396 Pa 222, 151 A2d 441 (1959). SW2d 593 (1963).
§ 73. Instruction to disregard testimony erroneously received.
Just to clarify a point, the Court will state to the jury that the statement
made in the plaintiffs final statement, in which he referred to the fact that
twenty-five thousand dollars would care for Mrs. Me. for a certain period of
time, is not a factor that the jury should consider, and I so instruct yoa that any
consideration of what an award would do to Mrs. Me. is of no consequence to
this jury, and you should disregard it.49 1
Plaintiffs counsel in his argument to you made some reference to the Reve-
nue Fund of Northfield being contributed to, I think, by a municipal enterprise
in the Village of Northfield — I believe it was the liquor store — and I instruct
you that this is not a valid factor for you to consider in this case, and it is not
material at all as to how the Revenue Fund in Northfield is supported, and as
a matter of fact it is not of any concern to you as to how the money is paid if
a verdict is rendered.49 2
The following instruction given in a mandatory form requires a jury, if they
believe a witness has testified falsely to any material testimonial matter, to
disregard his entire testimony. Florida has rejected this form and ascribes to
a permissive form.
"Should you find a witness has testified falsely, either willfully or inten-
tionally, to some material matter in this case, his or her testimony in other
respects may, in your discretion, be disregarded unless it is corroborated to
your satisfaction by all of the evidence or by other proof. The rule also applies,
but with less force to the statements of a witness which, although not inten-
tionally false, are in fact untrue, especially where they involve matters of
judgment and skill. It is not enough that the witness is merely mistaken or that
through defective memory he or she departs from the truth." 49 3
Members of the jury, as you recall just immediately before the adjournment,
I advised you that there was a statement made by M. that you should disregard
and I was going to strike it from the evidence. I want you to refrain in your
consideration of this evidence from considering that statement for any purpose.
I have excluded the evidence; I found that it should not have come in and that
it should be stricken from the record.49'4
Ladies and gentlemen of the jury, there was an objection to a volunteered
statement of the witness relating to words uttered by the defendant at the time
of his arrest. That objection was sustained. Those words were stricken from the
record, and you are instructed to disregard them.49 5
Members of the jury, you may recall when the Assistant State Attorney
inquired with reference to the particular offense, it was objected to on the
ground that it was not within the scope of cross examination. In other words,
that there had been no direct examination relating to the offense. The Court
will take the position that unless the testimony relates to the offense, it's
§ ?4 INSTRUCTIONS-RULES GOVERNING 94
wholly Immaterial and should be stricken. For that reason, the witness having
testified to nothing relating to this particular offense with which he is charged,
Ms testimony will be stricken and you are directed to disregard his testimony
in arriving at your verdict.51 1
For example, during the defendant's trial for assault and battery and rape
the defendant assaulted the court reporter with a pair of scissors. At a later
trial for the dangerous assault charge against the reporter, the following testi-
mony was taken from a juror who was present at the previous trial:
"Q Do you recall where you were on that date in your juror duties, where you
were located in the court building?
"A Yes, I was in the fifth seat from the back row.
"Q Do you recall where that courtroom was?
"A Yes. It was on this wing on the far side,
"Q At that time in your juror duties, could you tell us what type of pro-
ceedings you were involved in?
"A There was a rape case, assault and battery."
The court properly ordered the testimony stricken from the record and
instructed the jury to disregard the juror's comments "with regard to what the
charges were on the crimes that were involved in the previous trial." 53'1
The jury should be clearly directed to disregard testimony which is later
determined to have been inadmissible.63 l
When a witness has testified from other than first-hand knowledge, a court
need not declare a mistrial and may properly caution the jury by instructing
them "to ignore officer C's impressions about things that he didn't see." 63 2
40-* Minnesota. McCorkell v. City of 179, 261 NE2d 469 (1970).
Northfield, 272 Minn 24, 136 NW2d 840 (1965). 51-* Florida. Harris v. State (FlaApp), 236
49^ Minnesota. McCorkell v. City of S2d 135 (1970).
Northfield, 272 Minn 24, 136 NW2d 840 ( 1965). M-1 Arizona. State v. Mulalley , 127 Ariz 92,
*" Florida. Anthony v. Douglas (Fla), 201 61& F2d 586 (1980).
S2d 917 (1967). Virginia. Eubank v. Spencer, 203 Va
49-4 Alaska. Sidney v. State t Alaska), 468 923> 128 SE2d 299J 1962).
P2d 960 (1970). ^^ Pennsylvania. Kelly v. Buckley, 421
4a5 Illinois. People v. Phillips, 126 IllApp2d A2d 759 (PaSuper 1980).
§ 74. Argument of counsel.
Ladles and gentlemen of the jury, you are instructed that you should not
consider as evidence any statement of counsel made during this trial, nor any
document upon the counsel table unless such statement was made as an
admission or stipulation conceding the existence of a fact or facts or such
document or documents have been introduced into evidence.64 1
If counsel upon either side during the course of trial or during the heat of
argument have made any statements not warranted by the evidence, you
should wholly disregard such statements in arriving at your verdict.65"1
Now, ladies and gentlemen, the statements and arguments of counsel are not
evidence. They are only intended to assist you in understanding the evidence
and the contentions of the parties. Reference was made, for instance, in the
argument of the District Attorney to a certain book and a certain character of
some thirty years ago, one Dillinger. That was mentioned solely for the purpose
of illustrating that on occasion informers do come from former associates of
persons charged with crime, that and nothing more.65*2
95 SUBJECT-MATTER § 75
During the closing argument of the prosecutor, the following occurred:
"MR. SLATE: I believe I will object to the statement by counsel that, 'The
law as you see it is slanted to protect the defendant.'
"THE COURT: Ladies and gentlemen, that is a matter of opinion among
attorneys. The law must be considered the rule that we abide by regardless
whether it favors one or the other, but since it is an opinion only and is not
binding on you, I will overrule the objection.
"MR. SLATE: We except,"
The court held that the comments of counsel did not require a mistrial
because any prejudice that resulted was cured by the court's cautionary
instructions.70 1
**-* California. Richardson v. Employers 65-2 Federal. Turner v. United States, 416
Liability Assur. Co., 25 CalAppSd 232, 102 F2d 815 (1969).
CalRptr 547 (1972). mi Alabama. Stone v. State, 390 S2d 1179
65.1 North Dakota. Larson v. Meyer (ND), (AlaCrimApp 1980).
135 NW2d 145 (1965).
§ 75. Manner of arriving at verdict.
Your verdict here must represent the considered judgment of each juror. In
order to return a verdict, it is necessary for each juror to agree thereto. Your
verdict must be unanimous. It is your duty as jurors to consult with each other
and to deliberate with a view to reaching a verdict if you can do so without
violence to individual judgment. Each of you must decide the case for yourself,
but do so only after impartial consideration of the evidence with your fellow
jurors.
In the course of your deliberations do not hesitate to re-examine your own
views and change your opinion if convinced it is erroneous, but do not
surrender your honest conviction as to the weight or effect of evidence solely
because of the opinion of your fellow jurors, or for the mere purpose of returning
a verdict. You are not partisans, you are judges, judges of the facts. Your sole
interest is to ascertain the truth from the evidence in the case.
So, with that in mind, I want you to go back and I will see in a while longer
if you are any closer to a verdict.
You may go back and continue your deliberations at this time.87 1
Although improper to inquire into , the extent of a deadlocked jury's
numerical division, it is not improper for the judge to give an otherwise proper
supplementary instruction when information concerning the numerical
deadlock is received oy the judge unsolicited. Thus, the following supplemental
charge, delivered after the jury foreman disclosed a numerical split to the trial
justice,- was not improper:
"Now, in a large proportion of cases, and perhaps strictly speaking, in most
all cases, absolute certainty of all twelve cannot be attained or expected. How-
ever, you must examine the question with candor and frankness and with
proper regard and deference to the opinion of others. When you were first
brought into this courtroom last Tuesday, you were told what was to be
expected of you. You were asked whether you would fairly and impartially
listen to all of the testimony that would be presented and you took and [sic]
oath that you would honestly consider everything that was presented here and
§ 90 INSTRUCTIONS— RULES GOVERNING 96
give your honest decision regardless of any partiality or any other outside
interest.
"I'm going to appeal to you to go back to the jury room and be frank with each
other. Be willing to listen to each other, and try hard to arrive at a decision
which is important to both the State and to this Defendant. If after further
deliberation it becomes apparent that you cannot reach a unanimous verdict,
then I will call you down and I will handle the matter as I am required to do
under the law.
"Sheriff, take the Jury, please." 92-x
87A Illinois. People v. Allen, 47 IilApp3d 900, 92'1 Rhode Island. State v. Rogers, 420 A2d
8 IllDec 222, 365 NE2d 460 (19171 1363 <RI 1980).
CHAPTER 4
FORM AND ARRANGEMENT
Section Section
90. Form and arrangement in general. 103. Misleading instructions.
91. Written and oral instructions. 104. Contradictory instructions.
94. Clearness of expression. 105. Undue prominence to particular features
95. Repetition of instructions in civil cases. in civil cases.
96. Repetition of instructions in criminal 107. Undue prominence in criminal cases.
cases. 108. Argumentative instructions in civil cases.
97. Limitation on number of instructions. 109. Argumentative instructions in criminal
98. Reference to pleadings for issues cases.
99. Reference to indictment or information. 111. Special verdicts, interrogatories, and
100. Reference to other instructions. findings — Preparation, form, and
101. Reading from statutes or ordinances. submission.
102. Quotations from decisions.
§ 90. Form and arrangement in general.
As a specialist Dr. H. owed Mrs. B. the duty to use the care and skill
commonly possessed and used by similar specialists in like circumstances and
that the jury might infer that, among Dr. D.'s duties, was the administering
by him of such treatment as Dr. H. might direct, and that the extent of Dr. H.'s
possible liability would be for negligence in examining Mrs. B.? in his diag-
nosis, and in the direction for treatment given to the house officer. He (the
judge) was not obliged to specify, as requested, with more particularity phases
of Dr. H.'s activities which might have been negligently performed.5'1
When cases are consolidated for trial, it is within the judge's discretion
whether to instruct the jury in one connected series of instructions or two
complete sets of instructions.7"1
The particular sequence in which instructions are read — for example, all of
plaintiffs, then all of defendant's — is within the trial judge's discretion.7"2
In a medical malpractice case, if standard medical practice permits physi-
cians to confer upon nurses in certain medical situations the exercise of inde-
pendent judgment, nurses in those situations must be accorded the potential
benefits to be derived from standard jury instructions concerning errors in
judgment by physicians and selection by physicians of alternative methods of
treatment if such methods are available. To hold otherwise would impose upon
nurses a standard of care exceeding that applicable to the medical profession,
hardly a fair result.7'3
97 FORM AND ARRANGEMENT § 91
If the evidence in a medical malpractice case established that the failure of
a nurse to consult the attending physician under the circumstances presented
in the case at bench was not in accord with the standard of care of the nursing
profession, plaintiffs could have requested an instruction concerning the duty
to refer to a specialist. The failure of the trial court to modify this standard
instruction to make it applicable, or to develop its own instruction on this point,
is no ground of error in the absence of a party's request for such an instruc-
tion.7-4
s-1 Massachusetts. Barrette v. Right, 253 SW2d 1 (1959)
Mass 268, 230 NE2d 808 (1967). 7-3 California. Fraijo v. Hartland Hospital,
7a Illinois. Cross v. Blood, 22 IllApp2d 496, 99 CalAppSd 344, 160 CalRptr 246 (1979).
161 NE2d 349 (1959). 7-4 California. Fraijo v. Hartland Hospital,
'•* Missouri. Shepard v. Harris (Mo), 329 99 CalAppSd 344, 160 CalRptr 246 (1979).
§ 91. Written and oral instructions.
The following statement by the court to the jury was held to be an oral
direction or cautionary remark, and thus it was not an "instruction" to the jury
and there was no need to reduce it to writing and to submit it to the jury:
"Ladies and gentlemen of the Jury, it's my determination that after hearing
evidence for two days that a view of the premises involved would not be
inappropriate and therefore I am going to rule that you be allowed to view the
house in question. However, I want to do this with some very strict guidelines,
within some strict guidelines.
"You will be taken to the, to the home in a van, with a chauffeur driver.
Eleven of you can go with that driver. I'm going to order the Bailiff to accom-
pany you to the home. The Bailiff will take the twelfth juror to the home.
"I will allow any of the parties, Mr. and Mrs. Schuette or Mr. and Mrs.
McDowell, to go in their own separate vehicles. I will not allow the attorneys
to accompany either the Jury, the parties or the Bailiff.
"When you get to the home I want you to remember the caution that we have
given you before. Do not discuss this case among yourselves or with anyone. If
any of the parties, the Bailiff, the driver, if anyone, or a member of your own
Jury, attempts to emphasize some portion of the house or to point something
out to you, I want to know about it immediately.
"You are to go to the home, view the home, and then return to the jury room;
you are to do no more, no less.
"Now, I hope we understand one another." 28-1
After the jury had retired and had begun its deliberations the following
occurred:
"BY THE COURT:
All right, the bailiff advised me that one member of the jury has stated to her
that they might want to ask me a question; is that the purpose of the jury
coming back in the Courtroom or has the jury reached a verdict?
"BY JURY MEMBER:
No, sir, we want to ask a question.
"BY THE COURT:
All right, sir, what is the question?
§ 91 INSTRUCTIONS— RULES GOVERNING 98
"BY JURY MEMBER:
We need an interpretation of premeditation.
"BY THE COURT:
All right, now, the only thing I can say to the jury is what is already covered
in the instructions. Now, on the instructions, the word malice aforethought has
been used. Is that the same definition that you need?
"BY JURY MEMBER:
Possibly, we were considering premeditation — a length of time.
"BY THE COURT:
Let me go to Jury Instruction S-4, which states: The Court instructs the jury
that murder is the wilful, unlawful and felonious killing of a human being with
malice aforethought without authority of law by any means or in any manner
when done with deliberate design to effect death of the person killed and not
in necessary self-defense. Now, that is the definition of murder, and I have
looked at the instructions again and premeditation is not used in the instruc-
tions. So, the jury is instructed with the phrase malice aforethought.
"BY JURY MEMBER:
Could you give us an interpretation of malice aforethought?
"BY THE COURT:
In what regard, now?
"BY JURY MEMBER:
Is it planned or is it just the thought?
"BY THE COURT:
All right, let me say this. All I can say about malice aforethought is that there
is no time limit as long as the malice aforethought existed before the incident
occurred, and there is no definition of law of any length of time.
"BY JURY MEMBER:
All right, I think that answers that.
"BY THE COURT:
Does that answer your question?
"BY JURY MEMBER:
Yes, sir.
"BY THE COURT:
All right, if the jury will go and retire, and when you have reached a verdict,
knock on this door and the bailiff will so advise me."
It was held that the preceding dialogue neither was an "instruction" to the
jury so that it was required to be in written form, nor was the dialogue an
improper comment by the court on the evidence.
Thus, the province of the jury was not invaded by the court, which had
properly instructed the jury on the elements of malice aforethought and
manslaughter.36 1
Typewritten instructions, with parts stricken out by drawing through them
with ink, are not misleading, although the jury could still read what was
stricken.39-1
28>1 Missouri McDowell v. Schuette, 610 1000 (Miss 1980). '
SW2d 29 (MoApp 1981). 39a Tennessee. Tomlin v. State, 207 Tenn
3fcl Mississippi Carrol v. State, 391 S2d 281, 339 SW2d 10 (1960).
99 FORM AND ARRANGEMENT § 94
§ 94. Clearness of expression.
A charge containing two distinct propositions, conflicting one with the other,
is calculated to leave the jury in such a confused condition of mind that the jury
cannot render an intelligible verdict and requires the grant of a new trial.57"1
Following held unclear with respect to malice and likely to confuse:
Now, the intentional killing, to raise the presumption of malice and
unlawfulness, does not mean a specific intent to kill someone, but it means an
intentional assault with a deadly weapon inflicting wounds thereby causing
death of the deceased.63 1
The following instruction has been held confusing to the jury:
The Court instructs the jury for the Plaintiff, that the law in Mississippi is
that the question of malice is to be determined by the jury, unless only one
conclusion may reasonably by (sic) drawn from the evidence. The Defendants'
improper purpose usually is proved by circumstantial evidence.78-1
The following instruction was confusing, but not reversible error:
"If the evidence establishes beyond a reasonable doubt that at the time of the
commission of the alleged offense the defendant acted as if he was conscious,
you should find he was conscious.
"However, if the evidence raises a reasonable doubt that he was in fact
conscious, you should find he was then unconscious." 85'1
The following instruction on the definition of an accomplice:
"A person who is an accomplice in the commission of a crime is guilty of that
crime.
"A person is an accomplice in the commission of a crime if, with knowledge
that it will promote or facilitate the commission of a crime, he or she aids
another person in planning or committing the crime. The word 'aid' means all
assistance whether given by words, acts, encouragement, support or presence,"
was not error, even though the instruction could have been more artfully
redrawn to have read:
"A person is an accomplice in the commission of a crime if he or she aids
another person in planning or committing the crime, with knowledge that it
will promote or facilitate the commission of a crime. The word 'aid' means all
assistance, whether given by words, acts, encouragement, support or
presence." 86-1
Specific and isolated language in a court's instruction will not make a court's
instruction improper and misleading as long as the total instruction, when
taken as a whole, adequately advises the jury on the issue in question.86-2
Excerpts from a law treatise should not be used since these treatises are not
written for the layman. Instructions must be in concise language
understandable to all.90"1
". . . in determining the legal sufficiency of an instruction, [a court] should
not be hypertechnical in requiring grammatical perfection, the use of certain
words or phrases, or any particular arrangement or form of language, but that
[a court] should be concerned with the meaning of the instruction (read with
all others given in the case) to a jury of ordinarily intelligent laymen, crediting
them with common sense and an ordinary understanding of the English lan-
guage ...» 90-2
§ 94 INSTRUCTIONS— RULES GOVERNING 100
This helpful and interesting comment about a proximate cause instruction
was made by Justice Musmanno, speaking for the Supreme Court of
Pennsylvania:
"If this portion of the charge had been delivered in Greek instead of English,
it could hardly have been any more enigmatic and mystifying to the jury. The
Trial Court here was probably endeavoring to make its charge airtight and
waterproof against the possibility of an appeal, but we would like to point out
that the purpose of a charge is to enlighten the jury on their duties and
responsibilities and not to assure an appellate court that the Judge has met his
responsibilities. When judges charge with an eye on the appellate court instead
of the jury, they are apt to miss the jury as well as the appellate court."903
A charge should be given, as far as possible, in language which the average
layman could understand thoroughly.90 4
Charges to juries should not be scholarly jurisprudential essays, intended
primarily to convince the appellate court that the subject in controversy was
appropriately treated. They should be simple directions to guide the jury along
the thoroughfare of a correct factual decision. They should instruct with the
simplicity of directional markers along the highways.90 5
An example to aid the jury is proper if the judge clearly informs the jury that
the example is illustrative only.90 6
Even though instructions are noticeably over-balanced against plaintiff, if
the evidence is undisputed that defendant created the condition and recognized
the risk, rules concerning superior knowledge had no tendency to confuse or
mislead the jury in assessing damages.90 7
After having given general instructions on the subject of right of way when
two vehicles approach or enter an intersection at approximately the same time,
the trial judge stated that a vehicle on a through highway has the right of way
over one on an intersecting highway. "There is no testimony in this case
concerning which was the thru and which the intersection or intersecting
highway or whether they were of equal importance. Therefore the question of
right of way is entirely for you to determine from all the evidence which you
have heard." Appellant claimed this statement confused jury by implying it
might decide the issue of right of way on basis of appellee being on a thru
highway. Held, case was tried on premise that intersections are uncontrolled.
Judge immediately ruled out any consideration of a right of way arising from
fact that one of the roads may have been so designated.90*8
As long as instructions are not a misstatement of the controlling legal prin-
ciple involved in a particular case the fact that they are not explicit on the point
in issue is not misleading.90-9
Reasonable doubt as a concept may be explained to jurors as equitable to a
judgment as to whether or not they would hesitate to undertake an important
business or personal undertaking. Such a statement correctly conveys the
concept of reasonable doubt to the jury.90'10
Where an injured person lived 3 Vz days after an accident and was conscious
a substantial portion of that time a jury is properly instructed that damages
are awarded only for conscious pain by the following charge even though it does
not expressly use the term "conscious": "In determining the amount of ...
damages, you may consider the . . . mental and physical pain as the Plaintiff
has experienced."
101 FORM AND ARRANGEMENT § 95
So long as the charge is phrased in terms connoting experiential reality the
jury hearing it would consider only the pain actually experienced.90'11
The following instruction is erroneous because it took from jury con-
sideration one of the specifications of plaintiff and it lacks clarity:
You should first determine these disputed issues:
1. Did the defendant fail to exercise ordinary care when it did not notify its
employees that the deceased and other workmen of the T. Construction Co.
would be working near a crane track in the raw materials building and did not
have its crane men in the raw materials building maintain a lookout for the
deceased and his fellow workers?
2. Did the defendant fail to exercise ordinary care when it did not notify its
employees that the deceased and other workmen of the T. Construction Co.
would be working near a crane track in the raw materials building and did not
require its crane men in the raw materials building to sound a warning horn
or bell or to otherwise notify the deceased and his fellow workers of the
approach of a crane?
If you determine that the plaintiff failed to prove by a preponderance of the
evidence that the defendant did not use ordinary care in either of the foregoing
particulars your verdict must be for the defendant and you can terminate your
deliberations.90 12
57A Georgia. Srochi v. Kamensky, 121 90-4 Delaware. Alber v. Wise, 53 Del 126, 166
GaApp 518, 174 SE2d 263 (1970). A2d 141 (1960).
6311 North Carolina. State v. Curne, 7 ^^ Pennsylvania. Commonwealth v.
NCApp 439, 173 SE2d 49 (1970). Collazo, 407 Pa 494, 180 A2d 903 (1962).
7811 Mississippi. Allen v. Ritter (Miss), 235 90-6 Pennsylvania. Doerflinger v. Davis, 412
S2d 253 (1970). Pa 401, 194 A2d 897 (1963).
8511 California. People v. Maxey, 28 w-7 Nebraska. Hansen v. First Westside
CalAppSd 190, 104 CalRptr 466 (1972). Bank, 182 Neb 664, 156 NW2d 790 (1968).
86-1 Washington. State v. Rotunno, 621 P2d m B Pennsylvania. Amati v. Williams, 211
191 (WashApp 1980). PaSuper 398, 236 A2d 551 (1967).
m'2 Maine. State v. Troiano, 421 A2d 41 (Me 90-9 Minnesota. Hemming v. Aid, Inc., 279
1980). Minn 38, 155 NW2d 384 (1967).
9<u Oklahoma. Page v. Hardy (Okl), 334 P2d 9<uo New Hampshire. State v. Hutton, 108
782 (1959). NH 279, 235 A2d 117 (1967).
90JS Missouri. Gould v. M, F. A. Mut. Ins. Co. 9°'n South Dakota. Plank v. Heirigs, 83 SD
(MoApp), 331 SW2d 663 (1960). 173, 156 NW2d 193 (1968).
90-3 Pennsylvania. Chadwick v, Popadick, 90*12 Ohio. Baker v. Ohio Ferro-Alloys Corp.,
399 Pa 88, 159 A2d 907 (1960). 23 OhApp2d 25, 261 NE2d 157 (1970).
§ 95. Repetition of instructions in civil cases.
As a specialist Dr. H. owed Mrs. B. the duty to use the care and skill
commonly possessed and used by similar specialists in like circumstances, that
the jury might infer that, among Dr. D.'s duty was the administering by him
of such treatment as Dr. H. might direct, and that the extent of Dr. H.'s possible
liability would be for negligence in examining Mrs. B., in his diagnosis, and in
the direction for treatment given to the house officer. He (the judge) was not
obliged to specify, as requested, with more particularity phases of Dr. H.'s
activities which might have been negligently performed. This is all that is
required in the charge.92 l
A defendant is not entitled to more than one charge on contributory negli-
gence.7-1
§ 96 INSTRUCTIONS— RULES GOVERNING 102
In a case in which plaintiffs contributory negligence was in issue, the trial
judge erred in giving eight peremptory instructions for the defendant and at
least twelve instructions that the plaintiff could not recover unless she was in
the exercise of due care. The court's remarks about the tactics of attorneys
tendering excessive instructions are worth repeating:
Attorneys often tender an excessive number of instructions, repeating the
same proposition over and over, not with the honest design of informing the
jury of the law, but with the thought of enforcing upon the minds of the jury
the importance of their various contentions and arguments.
Instructions are to be given in clear and intelligent language and inform the
jury what the issues are, the principles of law applicable to be observed, and
the facts material to be proven to justify their verdict. The preparation of jury
instructions is the duty of the parties but in the final analysis when they are
read by the trial judge, they become the court's instructions and it is elemen-
tary that this is not an adversary proceeding.7 2
This case was an appeal from a decision in favor of defendant, plaintiffs
employer, in a truck collision case. Plaintiffs requested instruction as to the
duty of defendant to provide plaintiff with safe working conditions was rejected
by the court as repetitious. The high court sustained this finding, stating that
the judge has the discretion to refuse a proposed instruction as repetitious if the
subject matter has been adequately covered in previous instructions.7-3
The following instruction held not repetitious:
. . . the jury was informed that they had been instructed on the subject of the
measure of damages in this action because it is my duty to instruct you as to
all the law that may become pertinent in your deliberations. I, of course, do not
know whether you will need the instructions on damages, and the fact that
they have been given to you must not be considered as intimating any view of
my own on the issue of liability or as to which party is entitled to your
verdict.7-4
82-J Massachusetts. Barrette v. Eight, 253 IllApp2d 389, 161 NE2d 369 (1959).
Mass 268, 230 NE2d 808 (1967). 7'3 Montana. DeWar v. Great Northern Ry.
7>1 Florida. Shaw v. Congress Bldg., Inc. Co., 150 Mont 367, 435 P2d 887 (1967).
(FlaApp), 113 S2d 245 (1959). 7A Alaska. Maxwell v. Olsen (Alaska), 468
7J2 Illinois. Smith v. City of Rock Island, 22 P2d 48 (1970).
§ 96. Repetition of instructions in criminal cases.
Instructions Nos. 13 and 15 are objected to because they are duplicative.
Instruction No. 13 stated: "The court instructs the jury that to constitute the
offense of rape it is not necessary that the defendant have an emission."
Instruction No. 15 quoted the statutory definition of rape including the
following language: ". . . sexual intercourse occurs when there is any
penetration of the female sexual organ by the male organ." Defendant contends
that instruction No. 15 was improper because having been given instruction
No. 13, it was duplicative and explanatory of No. 15 and therefore confusing
to the jury. We fail to see where there could be any confusion,9'1
103 FORM AND ARRANGEMENT § 96
Recharging or reinstructing the jury is perfectly proper and generally within
the sound discretion of the trial court so long as the recharge is full and
accurate and has no tendency either to mislead the jury or to unduly emphasize
some aspects of the case.9 2
Instructions requested may be refused if to include them would have made
the charge unnecessarily lengthy, repetitious and confusing.18-1
There was no error in this second and more narrow instruction on
premeditation given after a jury request for further instruction:
Now the premeditation is an essential element of the one crime, first-degree
murder, and it must be proved in order to find a person guilty of first-degree
murder — it is one of the elements that must be proved — and that
premeditation is as follows: "Premeditation means to consider, plan, or prepare
for, or determine to commit the act referred to prior to its commission." I will
reread that "Premeditation means to consider, plan, or prepare for, or deter-
mine to commit the act referred to prior to its commission."18-2
In the case at bar, all the instructions sent to the jury room had been read
first in open court. The same jury that convicted defendant on the underlying
felony heard evidence on the habitual offender charge. The only problem
presented here is that several of the instructions had been read the day before
when the jury convicted the defendant on the underlying felony. Those instruc-
tions were not reread before being given to the jury when it began deliberations
on the habitual offender charge. This Court has held that the habitual offender
procedure does not constitute a separate crime or trial; rather, it provides for
the imposition of a greater sentence for the crime charged Therefore,
finding that all of the instructions had been read once in open court to the same
jury, and since the habitual offender phase of the trial does not constitute a
separate trial, we do not find any error in resubmitting instructions without
re-reading them.18'3
In a trial for murder and assault with a dangerous weapon, with a lesser
included offense, there is no need to give two instructions concerning the
defense of self-defense so long as it is clear that the same burden of proof applies
to the state in both. The instruction on murder also applied to the lesser
included offense, therefore, two separate instructions were not needed. The
following instruction was therefore valid.
"[Y]ou may not find the defendant guilty . . . unless the State proves each of
the following elements beyond a reasonable doubt:
"[I]f you find that the defendant murdered John Granata and that the ele-
ment of premeditation and deliberation has been proved to have existed for
more than a barely appreciable length of time or existed for more than a
moment, the State will have proved first degree murder, If you find that the
defendant murdered John Granata and that the element of premeditation and
deliberation has proved to be instantaneous or of momentary existence, the
State will have proved murder in the second degree. If you find that the State
has failed to prove that the defendant murdered John Granata, you must
return a verdict of not guilty of murder.
"In the event that the jury concludes that the State has failed to prove either
degree of murder, beyond a reasonable doubt, you will give consideration to
whether the State has proved the defendant guilty of assault with a dangerous
weapon.
§ 97 INSTRUCTIONS—RULES GOVERNING 104
"[I]f you conclude that there has been no sustaining of the burden of proof
so far as Count 1 is concerned, charging the defendant with murder, you will
consider whether there has been an assault with a dangerous weapon. If the
State has failed to prove an assault with a dangerous weapon, of course then
on Count 1 you will return a verdict of not guilty.
"The jury received clear instructions indicating that defendant had to be
found not guilty of the count 1 charges if the state failed to establish its burden
in regard to the claims of self-defense and accident. They were aware that the
assault-with-a-dangerous-weapon charge was a lesser-included offense under
count 1 and that the state had to refute the above claims beyond a reasonable
doubt before they could find defendant guilty of this charge." 18'4
Although the instruction on the crime of robbery did not contain the element
of intent and was thus incomplete, the appellate court said the other instruc-
tions given were sufficient to cure the defect.
The trial court's refusal to instruct on unlawful assault as a lesser included
offense was proper where a lesser included offense "must be such that it is
impossible to commit the greater offense without first committing the lesser
offense." In this case, an intent to injure is not relevant to the crime of robbery.
The trial court's refusal to instruct the jury that "the State must prove that
the defendant must not have been so drunk, or otherwise incapacitated, as to
have been incapable of formulating an intent to steal" was not error in that
voluntary drunkenness is not ordinarily an excuse for a crime,18'5
9a Illinois. People v. Jordan, 121 IllApp2d 18-3 Indiana. Haynes v State, 431 NE2d 83
388, 257 NE2d 536 (1970). (Ind 1982).
^Georgia. Bryant v. State, 271 SE2d 904 18-4 Rhode Island. State v. Cipriano, 430
(GaApp 1980). A2d 1258 (RI 1981).
iai Illinois. People v. Neukom, 16 I112d 340, l8-5 West Virginia. State v. Vance, 285 SE2d
158 NE2d 53 (19591 437 (WVaApp 1981).
ia2 Minnesota. State v. King, 286 Minn 392,
176NW2d279 (1970).
§ 97. Limitation on number of instructions.
In action for wrongful death and property damage resulting from automobile
collision, where issues were relatively simple, the defendant was not prejudiced
in being limited to ten instructions.27'1
Some kind of a record seems to have been established in a case where 582
requests were made by one party! The trial judge refused to pass upon the
requested instructions. His action was upheld on appeal.27 2
27>1 Illinois. Romines v. 111. Motor Freight. 27-2 Massachusetts. Commonwealth v.
Inc., 21 IllApp2d 380, 158 NE2d 97 (1959). Greenberg, 339 Mass 557, 160 NE2d 181 (1959).
§ 98. Reference to pleadings for issues.
After presenting the parties' contentions, a trial court may tell the jury "you
may refer to (the pleadings) as often as you desire to find the issues and
contentions." 40-1
105 FORM AND ARRANGEMENT § 101
4(U Georgia. Fidelity & Casualty Co. of N. Y.
v. Mangum, 102 GaApp 311, 116 SE2d 326
(1960).
§ 99. Reference to indictment or information.
. . . [T]he principle is established that a trial court may instruct the jury that
if they find that all the material allegations of the indictment or affidavit are
proven beyond a reasonable doubt that they "should" convict the defendants.
However, such an instruction would be erroneous where the court failed to set
forth all the material allegations which the State must prove before a con-
viction can be obtained that or where the court failed to instruct the jury that
they were the judges of the law as well as the fact.46 1
4ai Indiana. Loftis v. State, 256 Ind 417, 25
IndDec 477, 269 NE2d 746 (1971).
§ 100, Reference to other instructions.
Although the trial court erroneously charged the jury on the weight to be
given evidence of good character and then, at the insistence of the state and
over the objection of defense counsel, recalled the jury and instructed them as
follows:
"[T]he state, well, an attorney attracted my attention, the district attorney,
to a charge I gave you on good character. It is my duty . . . that I erroneously
gave you that charge and I believe he is probably right .... You are, therefore,
instructed to eliminate the charge from your mind and memory; it is not
applicable. By this charge I do not imply that the defendant has bad character
nor do I imply that he has good character. I am saying to you it is not relevant:
Therefore, it should not be taken into consideration." This was not error
because the trial court judge nevertheless instructed the jury not to consider
the issue of character in one way or another.49 1
An instruction incorporating by reference other instructions is not a mere
abstract statement of law. However, if the referred-to instructions are
incorrect, the incorporating instruction also becomes erroneous.57-1
The doctrine of sudden emergency like that of unavoidable accident is an
ultimate conclusion of fact, and for either or both to be given there must be
sufficient facts relating to the application of these doctrines. If a factual situa-
tion exists which leads one to the conclusion of sudden emergency, it may
follow that an unavoidable accident may result. Yet, an unavoidable accident
can occur without a sudden emergency.57 2
4{U Georgia. Carroll v. State, 271 SE2d 650 572 Florida. Scott v. Barfield (Fla), 202 S2d
(GaApp 1980). 591(1967).
57*1 Missouri. Feldman v. Lewis (MoApp),
338SW2d364 (1960).
§ 101. Reading from statutes or ordinances.
In connection with Special Issues 8 through 18, inquiring as to the conduct
of plaintiff, A. H. P., you are instructed that Article 1142, Penal Code of Texas,
states in part as follows:
§ 101 INSTRUCTIONS-RULES GOVERNING 106
"Article 1142. Lawful Violence. Violence used to the person does not amount
to an assault or battery in the following cases:
"4. In preventing or interrupting an intrusion upon the lawful possession of
property."
You are further instructed that "in preventing or interrupting an intrusion
upon the lawful possession of property" A. H. P. could use reasonable but not
excessive force to effect the purposes of this Statute.
By the term, "negligence," as used in Special Issues 8, 10, 13 and 17, is meant
that degree of care that an ordinarily prudent person in lawful possession of
property would have exercised under the same or similar circumstances in
carrying out the purposes of § 4, Article 1142, quoted above.58 l
The trial court judge does not abuse his discretion when he reads to the jury
a statute, e.g., restatement of torts, which contains all the elements of the act
alleged. Further amplification focusing upon particular factual aspects of the
case is unnecessary, and the trial court judge also is not obliged to read com-
mentary to the statute as part of the instructions that he gives the jury. In
addition, the trial court judge does not abuse his discretion if he decides to
explain a particular statutory or restatement provision to the jury without
using the exact language of the text.58 2
Instruction which defined first and second-degree murder in the language of
the statute was not error, even though some of the language was inapplicable
to the facts of the case.59 1
You are instructed that Section 21804 of the Vehicle Code of California . . .
provided ... as follows:
"You are further instructed that the driveway from which the automobile
driven by J. A. entered Ocean Park Boulevard was a private driveway within
the meaning of the provision. . . ." 64 1
It was not improper for the court to read to the jury provisions from the
Maryland Transportation Code Annotated, § 21-902 (1977), which defined
"driving while intoxicated" and "driving while ability impaired by alcohol,"
because the court subsequently explained to the jury the definitions in general
terms and further instructed the jury that a violation of the statute by the
driver, although evidence of negligence, was not enough to enable the plaintiff
to recover unless also shown that the negligence was a proximate cause of the
injuries. Although not improper to read to the jury statutory definitions of
intoxication, a verdict can be supported only if there is some evidence of the
driver's condition, consumption of alcohol by the driver, or some observable
conditions of intoxication.65'1
Where a code section is not applicable, it is error to instruct on it.80"1
Reading statutes is seldom reversible error if the jury is told that it must find
the facts and then apply the statutes to the facts.87 l
A court is not required to use the exact language of a statute, so long as the
given instruction gives the substance and meaning of the statute.87"2
584 Texas. Denton v. Poole (TexCivApp), 478 Center, 420 A2d 915 (Me 1980).
SW2d 834 ( 1972). 5<u California. People v. Welch, 8 Cal3d 106,
58-2 Maine. Knight v. Penobscot Bay Medical 104 CalRptr 217, 501 P2d 225 (1972).
107 FORM AND ARRANGEMENT § 103
64J California. Eagar v McDonnell Douglas CalAppSd 756, 108 CalRptr 410 (1973).
Corp., 32 CalAppSd 116, 107 CalRptr 819 ST.I Minnesota. Temphn v. Crestliner, Inc.,
(1973). 263 Minn 149, 116 NW2d 178 (1962).
&5-1 Maryland. Fouche v. Masters, 420 A2d 872 Georgia. Fennell v. State, 218 Ga 418,
1279 (MdApp 1980). 128 SE2d 43 (1962).
8(U California. Shamblin v. Polich, 32
§ 102. Quotations from decisions.
Using language from an appellate court opinion does not assure that the
instruction is a correct instruction to the jury.96 l
The reading of excerpts from previous opinions is not approved, but this
alone does not justify a reversal.96 2
96<1 Alabama. Knight v. State, 273 Ala 480, **•* Maryland. Lipphard v Hanes, 232 Md
142 S2d 899 (1962). 405, 194 A2d 93 (1963).
§ 103. Misleading instructions.
It is not error when certain instructions of the court to the jury respecting
attorney's fees which were objected to at trial were after objection clarified for
the jury and no further objection was made.97 1
The following instruction on the definition of an accomplice:
"A person who is an accomplice in the commission of a crime is guilty of that
crime.
"A person is an accomplice in the commission of a crime if, with knowledge
that it will promote or facilitate the commission of a crime, he or she aids
another person in planning or committing the crime. The word 'aid' means all
assistance whether given by words, acts, encouragement, support or presence,"
was not error, even though the instruction could have been more artfully
redrawn to have read:
"A person is an accomplice in the commission of a crime if he or she aids
another person in planning or committing the crime, with knowledge that it
will promote or facilitate the commission of a crime. The word 'aid' means all
assistance, whether given by words, acts, encouragement, support or
,, 07 <>
presence.
As long as instructions are not a misstatement of the controlling legal prin-
ciple involved in a particular case the fact that they are not explicit on the point
in issue is not misleading.97-3
The following instruction held likely to confuse and mislead juries in ordi-
nary negligence actions:
You are instructed, however, that merely because an accident occurred to
plaintiff that this will not, of itself, make the defendant liable.1-1
An instruction is erroneous if it fails to define or indicate to the trier of fact
either what constitutes a "culpable mental state" or what culpable mental
state will support the crime charged. Therefore, in a criminal case where the
defendant was charged with riot, the trial court committed error when it
charged the jury that "to constitute a crime there must be the joint operation
of an act forbidden by the law coupled with a culpable mental state."1-2
For a portion of a charge to the jury to constitute reversible error, the
appellate court will consider the charge, or a series of charges, as an entirety,
and then will ask whether it is reasonably probable that the jury, after hearing
all the charge, were misled.1 3
§ 103 INSTRUCTIONS-RULES GOVERNING 108
Although the trial court judge, In his instruction to the jury on the doctrine
of strict liability in tort, defined the term "unreasonably dangerous," the
instruction is misleading because it was impossible for the jury to perform their
fact-finding function when they were not given the definition of defective. For
example, the following instruction deprived the plaintiff of the opportunity to
present his theory of recovery before the jury:
ft[T]his lawsuit [is based] upon a theory of law known as Manufacturer's
Products Liability. . . . [T]he law [is that] . . . one who . . . supplies ... a product
in a defective condition which is unreasonably dangerous to the user ... is
strictly liable for all harm . . . [resulting from] the defect while the product is
being used for its intended purpose.
"By being 'unreasonably dangerous' to the user, as that term is used above,
means that the product must be shown to be dangerous to an extent beyond
that which would be contemplated by the ordinary consumer who purchases it,
with the ordinary knowledge common to the community as to its char-
acteristics.
"In summary of this instruction, you may find the defendant liable to the
plaintiff in this lawsuit if you find from the evidence the following facts to exist:
1. That the defendant Nelson Sales Co., Inc., supplied the underwear which
was ultimately worn by the plaintiff at the time of his accident and that such
underwear contained a defect which made the product unreasonably dangerous
to the user;
2. That such defect existed in the product at the time it left the defendant's
control; and
3. That such product was the cause of damages to the plaintiff. In this
connection, you are instructed that the mere possibility that it might have
caused the injury is not enough."
In addition, the following instruction by the trial court was superfluous,
misleading and defense-slanted:
"[T]he mere happening of an accident and injury raises no presumption of
defectiveness in the garment involved in the accident, nor does it raise a
presumption of the breach by a defendant of its obligations under the theory
of Manufacturer's Products Liability."6 1
We are of the opinion that the trial court's giving final instructions 1 and 9
on two separate theories, namely, negligence and wanton or willful miscon-
duct, was bound to mislead the jury and leave them in doubt as to whether to
decide the case on the theory of negligence or the theory of wanton or willful
misconduct, and was reversible error.7 1
But to give the jury these two sets of rules in conjunction without explaining
or distinguishing between them was, in the circumstances of this case, to load
the charge strongly in favor of the defendant.15 *
Typewritten instructions, with parts stricken out by drawing through them
with ink, are not misleading, although the jury could still read what was
stricken.24-1
A misleading instruction does not constitute error; the remedy is to request
an explanatory charge.24"2
Even though instructions are noticeably over-balanced against the plaintiff
so long as no part of the evidence is emphasized directly or indirectly it is not
prejudicial error. (Emphasis supplied).24 3
109 FORM AND ARRANGEMENT § 104
The instruction as given by the trial court, that "a pedestrian must exercise
ordinary care at all times in crossing a street, whether crossing at a crosswalk
or at any other point on the street," while technically correct, could well have
misled the jury into concluding that no greater diligence or caution was
required of the plaintiff in exercising ordinary care while crossing in the
middle of a block than would be required of her when crossing at a pedestrian
crossing. The court therefore erred in not relating the degree of caution to the
circumstances.24'4
97 -l Georgia. Magyer v. Brown, 116 GaApp 7A Indiana. Britton v. Garrison, 147 IndApp
498, 157 SE2d 825 (1967). 264, 259 NE2d 417 (1970).
97-2 Washington. State v. Rotunno, 621 P2d 15>1 Georgia. Flowers v Slash Pine Elec.
191 (WashApp 1980). Membership Corp., 122 GaApp 254, 176 SE2d
97-3 Minnesota. Hemming v. Aid, Inc., 279 542 (1970).
Minn 38, 155 NW2d 384 (1967). 24J Tennessee. Tomlin v. State, 207 Tenn
1J Alaska. Maxwell v. Olsen (Alaska), 468 281, 339 SW2d 10 (1960).
P2d48(1970). 24-2 Alabama. Thompson v. Magic City
12 Colorado, People v Bridges, 620 P2d 1 Trucking Service, 275 Ala 291, 154 S2d 306
(Colo 1980). (1963).
1-3 Connecticut State v. Anonymous, 36 24>3 Nebraska. Hansen V First Westside
ConnSuper 583, 421 A2d 872 (1980). Bank, 182 Neb 664, 156 NW2d 790 (1968).
611 Oklahoma. Spencer v. Nelson Sales Co., 24'4 North Dakota. Glatt v. Feist (ND), 156
620 P2d 477 (OklApp 1980). NW2d 819 (1968).
§ 104. Contradictory instructions.
If the judge gives conflicting instructions, it is presumed that the jury may
have followed the erroneous one.32'1
The following instruction on assault:
"As to each count in which a defendant is charged with directly committing
a crime if you are satisfied beyond a reasonable doubt that the defendant
named in the count was a prisoner confined to a state prison and while so,
intentionally caused bodily harm to an officer or an inmate respectively, as
charged, of such prison without the consent of that person, then you should find
the defendant guilty of battery by a prisoner as to that count," was not con-
flicting or contradictory to the following instruction on self-defense:
"If you find that a defendant did intentionally cause .bodily harm to an officer
or inmate as charged in the information but that he did so under such circum-
stances that under the law of self defense as it has been explained to you, such
use of force was privileged, then you must find the defendant not guilty, giving
him the benefit of any reasonable doubt as to whether his conduct was privi-
leged under the law of self defense. In other words, before you can find a
defendant guilty of an offense charged, you must be satisfied beyond a reason-
able doubt from the evidence in this case that any use offeree by him against
the person named in the charge if such force was so used was not privileged
under the law of self defense as that has been defined for you," even though the
jury is first told that they can find the defendant guilty but then are told that
they cannot, and even though the instruction could have been more artfully
drawn.641
32>1 Michigan, Iwrey v. Fowler, 367 Mich 64>1 Wisconsin. State v. Staples, 99 WisApp
311, 116 NW2d 722 (1962). 364, 299 NW2d 270 (1980).
§ 105 INSTRUCTIONS— RULES GOVERNING 110
§ 105. Undue prominence to particular features in civil cases.
All instructions should be typed on the same typewriter; larger type should
not be used purposefully. But it is not prejudicial error if the same typewriter
was not available to type all the instructions.84'1
84-1 Missouri. Newman v. St. Louis-San
Francisco Ry. Co. (Mo), 369 SW2d 583 (1963).
§ 107. Undue prominence in criminal cases.
The mere fact that the testimony of a rape victim is uncorroborated does not
per se constitute a reason for distrusting the victim's testimony so as to require
a cautionary instruction, especially where the evidence and testimony fails to
show any personal enmity between the victim and the defendant. Therefore, in
the absence of any disputed evidence that would give reason to distrust the
uncorroborated testimony of a rape victim, the following requested instruction
was properly refused;
"You are instructed that the charge of Sexual Intercourse Without Consent
is easy to make, difficult to prove, and more difficult to disprove, and in con-
sidering a case of this kind, it is the duty of the jury to carefully and delib-
erately consider, compare and weigh all testimony, facts and circumstances
bearing on the act complained of, and the utmost care, intelligence and freedom
from bias should be exercised by the jury (sic) consideration thereof."
The following instruction, however, that the court chose to give on the issue
of consent instead of the defendant's requested charge was held improper as
argumentative and a commentary on the evidence:
"There is no clear rule as to how much resistance is required of a woman in
order to prove her lack of consent to sexual intercourse with a man who intends
to rape her, apparently at all costs. The law does not put her life into even
greater jeopardy than it is already in. There is no way a woman in dealing with
a man bent on rape can know how must resistance she can give without
provoking him into killing her. Continuous resistance to an attempted rape is
not required."17'1
The trial judge must not in his charge overemphasize the contentions of one
side while minimizing the contentions of the other side.25"1
17J Montana. State v. Pecora, 619 P2d 173 25>1 Pennsylvania. Commonwealth v.
(Mont 1980). Evans, 190 PaSuper 179, 154 A2d 57 (1959).
§ 108. Argumentative instructions in civil cases.
The Court instructs the jury for the defendants that you must return a
verdict for the defendants unless the plaintiffs have proven to the satisfaction
of a jury by a preponderance of the evidence that the aforenamed defendant,
A, C., was negligent in the operation of his tractor immediately preceding the
accident.26-1
26-1 Mississippi. Elsworth v. Glindmeyer
(Miss), 234 S2d 312 (1970).
Ill FORM AND ARRANGEMENT § 111
§ 109. Argumentative instructions in criminal cases.
The mere fact that the testimony of a rape victim is uncorroborated does not
per se constitute a reason for distrusting the victim's testimony so as to require
a cautionary instruction, especially where the evidence and testimony fails to
show any personal enmity between the victim and the defendant. Therefore, in
the absence of any disputed evidence that would give reason to distrust the
uncorroborated testimony of a rape victim, the following requested instruction
was properly refused:
"You are instructed that the charge of Sexual Intercourse Without Consent
is easy to make, difficult to prove, and more difficult to disprove, and in con-
sidering a case of this kind, it is the duty of the jury to carefully and delib-
erately consider, compare and weigh all testimony, facts and circumstances
bearing on the act complained of, and the utmost care, intelligence and freedom
from bias should be exercised by the jury (sic) consideration thereof."
The following instruction, however, that the court chose to give on the issue
of consent instead of the defendant's requested charge was held improper as
argumentative and a commentary on the evidence:
"There is no clear rule as to how much resistance is required of a woman in
order to prove her lack of consent to sexual intercourse with a man who intends
to rape her, apparently at all costs. The law does not put her life into even
greater jeopardy than it is already in. There is no way a woman in dealing with
a man bent on rape can know how much resistance she can give without
provoking him into killing her. Continuous resistance to an attempted rape is
not required.54'1
54a Montana. State v. Pecora, 619 P2d 173
(Mont 1980).
§ 111. Special verdicts, interrogatories, and findings — Preparation,
form, and submission.
Ohio Statutes peculiarly permit interrogatories to accompany special
verdicts (Ohio R. C., § 2315.16, eff. Oct. 4, 1955). In a special verdict, the jury
must find "upon each determinative issue" (Ohio R. C., § 2315.14).
"Determinative issue" means the ultimate issues, not limited to questions of
fact alone, so that their determination will settle the controversy, leaving
nothing for the judge to do but enter judgment. Examples of determinative
issues: negligence, contributory negligence, assumption of risk, proximate
causation, and the amount of damages.
Interrogatories are confined to findings "upon particular material
allegations contained in the pleadings controverted by an adverse party" (Ohio
R. C., § 2315.16). Interrogatories involve findings on controlling questions of
fact, or findings on evidentiary matters. Examples: Was Mr.
driving at an excessive speed considering the weather and road conditions? Did
Mr. fail to keep a reasonable lookout ahead?
Instructions under the new special verdict statutes should be similar to those
given in a general verdict case, with adaptations indicated by the new statutes.
"The purpose and manner of use of the special verdict should be explained
to the jury. The pleadings should be outlined, the issues as presented by the
§ 115 INSTRUCTIONS—RULES GOVERNING 112
pleadings should be stated and explained, and the meaning of the various legal
terms incident to the particular case should be carefully defined. Naturally, the
'burden of proof/ 'preponderance of the evidence,' 'the credibility of witnesses,'
and 'the functions and duties of the jury and the number of jurors required to
return a verdict/ etc., should be covered. And in a negligence action 'negli-
gence/ 'contributory negligence/ 'proximate cause/ etc., should be defined; also
'assumption of risk/ where it is in the case and is expressly relied on as a
defense."981
It is proper for the trial court to instruct the jury in special verdict cases that
it could give them no information as to the effect of their answers.98 2
Special question on whether defendant was negligent is improper since it is
at best a mixed question of law and fact.98 3
m-1 Ohio. Miller v. McAllister, 169 OhSt 487, Northwestern Nat. Cas. Co., 26 Wis2d 306, 132
160 NE2d 231 (1959). NW2d 493 (1965)
98-2 Wisconsin. Vanderbloemen v. Suchosky, 9a3 Michigan. Baker v. Saginaw City Lines,
7 Wis2d 367, 97 NW2d 183 11959), Baker v. Inc., 366 Mich 180, 113 NW2d 912 (1962).
CHAPTER 5
PERTINENCY
Section Section
115. Necessity that instructions should be 122. Abstract instructions m criminal pros-
pertment in civil cases. ecutions.
116. Pertinency of instructions m criminal 123. Ignoring issues in civil cases.
prosecutions. 124. Ignoring evidence in civil cases.
117. Pertinency to pleadings in civil cases 125. Ignoring issues and evidence in criminal
119. Pertinency to evidence admitted in civil prosecutions
cases. 126. Directing verdict if jury believes certain
120. Pertinency to evidence admitted m crim- evidence or finds certain facts —
inal prosecutions. Formula instructions.
121. Abstract instructions in civil cases. 126A. Reformation by instruction.
§ 115. Necessity that instructions should be pertinent in civil cases.
Where a judge instructed the jury on the Fellow Servant Doctrine by
charging: "Except in case of railroad companies, the master shall not be liable
to one servant for injuries arising from the negligence or misconduct of other
servants about the same business."
Appellant claimed he was employed by his father and not the defendant,
which made the above instruction erroneous. Held: Where a distinct issue is
presented in the pleadings, it is proper for the trial judge to instruct the jury
on the law relating thereto, provided the charge is supported by some evidence,
even though very slight, Here the existence of check drawn on defendant's
account and payable to plaintiff, although far from conclusive, was sufficient
to justify the instruction given.1"1
Regarding the determination of negligence the jury might consider
customary use of safer design by other manufacturers upon the question of
whether Ford failed to exercise the skill of an expert in designing the tractor
involved. Instruction 29 stated the jury might consider the evidence, if any, of
customary use and practices of other manufacturers of similar products and the
incorporation of available safety products into the Ford tractor.
113 PERTINENCY § 116
Proper instructions should be read and considered as a whole and the above
if thus read shows no signs of impropriety.1'2
Part of a charge was objected to because it was addressed to the issue of
plaintiffs contributory negligence and the circumstances under which her
negligence might be one of the proximate causes of the collision between the
automobiles. It was held not to be prejudicial error since it was not within the
pleadings and proof.1 3
A party seeking ... an instruction on imminent peril must present a record
containing some evidence that there was affirmative action or voluntary con-
duct on his part in an effort to avoid the danger, following the unexpected
appearance of danger.1-4
Each party is entitled to an instruction on his particular theory of the case
so long as there is evidence to support the theory.1 5
The test of a charge is whether it is correct in law, adapted to the issues and
evidence in the case, and sufficient to guide the jury in applying the law
correctly to the facts. Although the degree to which reference to the evidence
may be called for resides within the sound discretion of the court, the court
nonetheless must make sure that the charge adequately instructs the jury on
the elements of the offense charged.4 1
Pertinency to pleadings alone is not enough. Regardless of issues formed by
the pleadings, it is improper to give an instruction not supported by the evi-
dence.11-1
A charge is tested by the parties' claims of proof and not by the evidence.11'2
It is reversible error to instruct on issues not raised by the pleadings or
applicable to the evidence, if the effect is to mislead the jury.11 3
Prejudicial error is not committed simply because an instruction is not
within the pleadings and proof.11'4
1-1 Georgia. Lacy v. Ferrence, 117 GaApp 4>1 Connecticut. State v. Sumner, 178 Conn
139, 159 SE2d 479 (1968). 163, 422 A2d 299 (1980).
12 Iowa. Bengford v. Carlem Corp. (la), 156 "-1 Kentucky. Powell v. C. Hazen's Store,
NW2d 855 (1968). Inc. (KyApp), 322 SW2d 483 (1959).
l-3 North Carolina. Jenkins v. Gaines, 272 11-2 Connecticut. Franks v. Lockwood, 146
NC 81, 157 SE2d 669 (1967). Conn 273, 150 A2d 215 (1959).
**4 California. Skoglie v. Crumley, 26 n'3 Nebraska. Watson Bros, Transportation
CalApp3d 294, 103 CalRptr 205 (1972). Co. v. Jacobson, 168 Neb 862, 97 NW2d 521
*-5 California. McGoldrick v. Porter Cable (1959).
Tools, 34 CalAppSd 885, 110 CalRptr 481 "*4 Washington. Owens v. Anderson, 58
(1973). Wash2d 448, 364 P2d 14 (1961).
§ 116. Pertinency of instructions in criminal prosecutions.
The court properly refused to give the following requested statement: "I
charge you that in your deliberations on punishment, you are not to return a
sentence of death if you determine that the defendant . . . was not the responsi-
ble party who pulled the trigger on the weapon which killed the victim." The
issue of who actually fired the gun is a factor to be considered, not a mandatory
bar on the jury's imposition of the death penalty.
The appellate court held the trial judge properly refused to give the jury an
instruction placing burden of proof on the state to show an enumerated
aggravating circumstance and the lack of mitigating circumstances. The
appellate court held that the statute does not impose any such burdens of proof
with respect to mitigating circumstances.13*1
§ 117 INSTRUCTIONS—RULES GOVERNING 114
13J Louisiana. State v. Sonmer, 402 S2d 650
(La 1981).
§ 117. Pertinency to pleadings in civil cases.
An "abstract instruction" is one which either broadens the issue beyond the
scope of the pleadings or beyond the scope of the evidence, but is not prejudicial
unless all the circumstances surrounding the giving of the instruction show
that it misled the jury.
Thus, for example, the following instruction was held not to be an "abstract
instruction" and not misleading merely because there was some evidence intro-
duced that the dog of the defendant was not involved in all the incidents of
damage:
"If one or more of several dogs owned by different persons participated in
damaging any livestock, the owners of the respective dogs shall be jointly and
severally liable under this section. The owners of dogs jointly or severally
liable under this section have a right of contribution among themselves. The
right exists only in favor of an owner who has paid more than his pro rata
share, determined by dividing the total damage by the number of dogs
involved, of the common liability, and his total recovery is limited to the
amount paid by him in excess of his pro rata share." 19 1
The plaintiff alleges in his complaint that, by reason of her injuries . . . she
has sustained special and general damages in the sum of one hundred thousand
dollars The allegations in the complaint are not evidence. They reflect the
claim that the plaintiff makes.23 *
If you return a verdict for the plaintiff, you may increase or reduce the
amount you find fair and just by reason of any aggravating or mitigating
circumstances attending the act, neglect or default which caused the death of
E.52-1
19-J Oregon, Columbia Co. v. Randall, 620 Hosp., 418 F2d 1035 (1969).
P2d 937 (OrApp 1980). 5a-1 Arizona. Southern Pacific Co. v. Barnes,
^ Federal. Weeks v. Latter-Day Saints 3 ArizApp 483, 415 P2d 579 (1966).
§ 119. Pertinency to evidence admitted in civil cases.
It is error to instruct as follows without clear justification for the matter
contained:
"Members of the Jury, the Court will now instruct you as to the rules of law
which you will apply to the evidence in reaching your decision in this case, so
we are coming now to your place to function as a citizen in this case and
important function it is. This is the only voice that really a private citizen ever
has in a federal court. You don't have any choice. You don't have any right to
vote for the person who presides over the Federal Court or any of its officials,
but you do have a chance now to decide what kind of government you want in
your area of the State and I am here to see that that kind of government that
you do want is enforced, so if you want good government it is an opportuntity
in these cases where you sit as jurors to express yourself in that way and if you
want chaos and if you want anarchy, if you want people to observe the laws that
they like to observe and to ignore the others, vote your preference in these cases
where you sit as jurors, because as I say this is the only time you ever have an
115 PERTINENCY § 119
opportunity to express any views you may have on the subject of what kind of
government you want." 67 1
An "abstract instruction" is one which either broadens the issue beyond the
scope of the pleadings or beyond the scope of the evidence, but is not prejudicial
unless all the circumstances surrounding the giving of the instruction show
that it misled the jury.
Thus, for example, the following instruction was held not to be an "abstract
instruction" and not misleading merely because there was some evidence intro-
duced that the dog of the defendant was not involved in all the incidents of
damage:
"If one or more of several dogs owned by different persons participate in
damaging any livestock, the owners of the respective dogs shall be jointly and
severally liable under this section. The owners of dogs jointly or severally
liable under this section have a right of contribution among themselves. The
right exists only in favor of an owner who has paid more than his pro rata
share, determined by dividing the total damage by the number of dogs
involved, of the common liability, and his total recovery is limited to the
amount paid by him in excess of his pro rata share." 86 1
Even though an instruction is not supported by the evidence, it is not
reversible error unless the instruction would probably mislead the jury.5 1
In determining whether the evidence supports an instruction, the court uses
the same test in determining if the evidence is sufficient to justify the verdict,
i.e., is there any substantial evidence, contradicted or not, to justify the instruc-
tion?5-2
A requested charge on contributory negligence should be denied if the evi-
dence would have sustained the granting of a directed verdict or a summary
judgment on this issue.5-3
Instructions should be confined to the issues raised by the pleadings and the
facts developed by the evidence.5-4
It is prejudicial error to submit an issue to the jury if there is no substantial
evidence supporting the issue; the danger is that giving the instruction may
indicate to the jury that the court must have thought there was some sup-
porting evidence.5-5
This case was an appeal from a decision in favor of defendant, plaintiffs
employer, in a truck collision case. Plaintiff excepted to the court's refusal to
give his tendered instruction stating that there was no evidence of contributory
negligence on his part, and that therefore any finding of negligence on the part
of the defendant would result in full recovery for plaintiff. The Supreme Court
upheld the refusal to instruct, noting that the plaintiff had admitted a traffic
violation, and that this evidence was properly submitted to the jury on the
issue of contributory negligence, along with other evidence on the same
point.56
The following instruction is erroneous as not in conformance with the facts:
There was in force in the state of Illinois at the time of the occurrence in
question a certain statute which provides:
All construction work upon bridges or highways within the state of Illinois
shall be so performed and conducted that two-way traffic will be maintained
when such is safe and practical, and when not safe and practical, or when any
portion of the highway is obstructed, one-way traffic shall be maintained,
§ 120 INSTRUCTIONS-RULES GOVERNING 116
unless the authorized agency in charge of said construction directs the road be
closed to all traffic.
If you decide that a party violated the statute on the occasion in question,
then you may consider that fact together with all the other facts and circum-
stances in evidence in determining whether or not a party was negligent before
and at the time of the occurrence.0 '
Instructions to the jury, informing that any damage award would not be
subject to federal income tax liability, are permitted or not depending upon the
amount of income being compensated for. Where extremely high income is
involved, there is a danger of injustice to the defendant if the tax effects of the
award are ignored. This danger outweighs the injustice to the plaintiff from
reducing an award of damages to allow for a tax element. Generally, an
instruction as to the effect of income taxes on an award of damages is proper
when there has been proof of extremely high prospective income. For example,
it was held that proof of prospective income to the plaintiffs in the amount of
$20,000 per annum was not an extremely high annual income to warrant an
instruction on the effect of income taxes. Note that no specific figure, however,
was given as one that would "trigger" the need to instruct on income tax,5'8
67a Federal. United States v. Hill. 417 F2d 5'4 Federal. Bethel v. Thornbrough, 311 F2d
279 (1969). 201 (1962)
8611 Oregon. Columbia Co. v. Randall, 620 ^Washington. Albin v. National Bank of
P2d 937 (OrApp 1980). Commerce, 60 Wash2d 745, 375 P2d 487 (1962).
5J California. Finney v. Neuman, 186 5-6 Montana. DeWar v. Great Northern Ry.
CalApp2d 463, 9 CalRptr 331 (1960). Co., 150 Mont 367, 435 P2d 887 (1967).
^California. Cooke v. Stevens, 191 5-7 Illinois. Tylitzki v. Triple X Service, Inc.,
CalApp2d 457, 12 Caffiptr 828 (1961). 126 IllApp2d 144, 261 NE2d 533 (1970).
" Florida. Sneed v. City of West Palm 5*8 Washington. Boeke v. Int'l Paint Co
Beach (FlaApp), 128 S2d 166 (1961). (Call, 620 P2d 103 (WashApp 1980).
§ 120. Pertinency to evidence admitted in criminal prosecutions.
There must, of course, be a threshold determination by the trial court that
there is sufficient evidence of intoxication to require the giving of diminished
capacity instructions. "It has been held that merely showing that the defendant
consumed some alcohol prior to commission of the crime without showing the
effect of the alcohol on him is not sufficient to warrant an instruction on
diminished capacity [even when requested by the defendant]." ... It has even
been held that K[t]he fact that a defendant has been drinking, without evidence
that he became intoxicated thereby, provides no basis for an instruction on
intoxication." 7-1
7wl California. People v. Stevenson, 79
CalApp3d 976t 145 CalRptr 301 (1978).
§ 121. Abstract instructions in civil cases.
The fact, however, that a given charge is abstract is not available as
reversible error unless it affirmatively appears from the record that the charge
worked injury to the complaining party; such party's remedy being to request
an explanatory charge.40-1
117 PERTINENCY § 122
An "abstract instruction" is one which either broadens the issue beyond the
scope of the pleadings or beyond the scope of the evidence, but is not prejudicial
unless all the circumstances surrounding the giving of the instruction show
that it misled the jury.
Thus, for example, the following instruction was held not to be an "abstract
instruction" and not misleading merely because there was some evidence intro-
duced that the dog of the defendant was not involved in all the incidents of
damage;
"If one or more of several dogs owned by different persons participate in
damaging any livestock, the owners of the respective dogs shall be jointly and
severally liable under this section. The owners of dogs jointly or severally
liable under this section have a right of contribution among themselves. The
right exists only in favor of an owner who has paid more than his pro rata
share, determined by dividing the total damage by the number of dogs
involved, of the common liability, and his total recovery is limited to the
amount paid by him in excess of his pro rata share." 40 2
4<X1 Alabama. Knabe v. State, 285 Ala 321, 40'2 Oregon. Columbia Co. v. Randall, 620
231 S2d 887 (1970). P2d 937 (OrApp 1980).
§ 122. Abstract instructions in criminal prosecutions.
The following instruction while not reversible error is abstract and should
not be requested in the future:
The Court instructs the Jury for the State that you do not have to know that
the defendant is guilty of the crime charged in the indictment before you would
be warranted in convicting him; all that the law requires is that you must
believe from the evidence, beyond a reasonable doubt, that he is guilty of the
crime charged, and if you so believe, then it would be your sworn duty to find
the defendant guilty as charged.46'1
Propositions of law applicable to any case, even though correct, should not
be given unless applied to the issues of the case before the trial court.56*1
Ordinarily it is not proper to state an abstract rule of law in an instruction
because no one knows exactly how a jury will apply the instruction to the case.
But merely giving an abstract instruction is not reversible error. If all the
instructions read together properly present the law of the case, the abstract
instruction is not misleading.56"2
The test for insanity in Oklahoma is whether the appellant knew right from
wrong and could appreciate the wrongfulness of his acts at the time of the
commission. For example, in the following instruction:
"You are instructed that the term 'insanity' as used in this case means a
perverted and deranged condition of the mental faculties which render a person
incapable of distinguishing between right and wrong, and incapable of
understanding the nature and consequences of the particular act,"
although the court used the phrase "a deranged or perverted condition," this
was not misleading to the jury when construed in conjunction with the court's
other instruction on insanity, which was:
"The defendant has interposed as one of his defenses the plea of insanity,
"In this connection you are instructed that under the law of this state an act
done by a person in a state of insanity cannot be punished as a public offense,
§ 122 INSTRUCTIONS— RULES GOVERNING 118
and the following persons are incapable of committing crimes, that is to say,
lunatics, insane persons and all persons of unsound mind, including persons
temporarily or partially deprived of reason, upon proof that at the time of
committing the act charged against them they were incapable of knowing its
wrongfumess.
"The law presumes every person to be sane and able to distinguish right from
wrong as applied to any particular act, and to understand the nature and
consequences of such act, until a reasonable doubt of his sanity is raised by
competent evidence, and it is an essential ingredient of a crime that a person,
to be guilty of such crime, must have at the time of its commission, sufficient
mental capacity and reason to enable him to distinguish between right and
wrong as applied to the particular act that he is then about to do. It is not every
derangement of the mind that will excuse one from punishment for the commis-
sion of crime. Although one may be in a diseased or unsound condition of mind
brought on by any condition or produced by any cause, if at the time he commits
the crime he knows and understands it is wrong and criminal to commit such
act, and has sufficient mind to apply that knowledge to his own acts, and to
know that if he does commit such act he will do wrong and subject himself to
punishment, then and in that event such diseased or unsound condition of mind
is not sufficient to excuse him from criminal liability.
"When the plea of insanity is interposed, the burden of the proof is on the
defendant, unless the evidence on the part of the State is sufficient for that
purpose, to introduce sufficient evidence to raise in the minds of the jury a
reasonable doubt of the defendant's sanity. It is not required that the defendant
shall prove his insanity to the satisfaction of the jury beyond a reasonable
doubt, or by a preponderance of the evidence. It is sufficient if only he intro-
duces sufficient evidence to raise in the minds of the jury a reasonable doubt
of his sanity, and when this is done the burden of proof is on the state to prove
the sanity of the defendant by competent evidence, beyond a reasonable doubt,
before the jury would be justified in convicting the defendant.
"You are therefore instructed that if, after considering all the evidence in
this case, you believe beyond a reasonable doubt that at the time he fired the
fatal shots that took the life of the deceased, the defendant knew the nature and
consequences of his act and knew that it was wrong to shoot said Sharon Mae
Kelley and was able to distinguish between right and wrong as applied to said
act, then and in that event you would not be justified in acquitting him by
reason of insanity. On the contrary, if, after considering all the evidence in the
case, you entertain a reasonable doubt as to whether the defendant was
mentally competent to understand the nature and consequences of his act, and
to distinguish between right and wrong as applied to said act, and to know that
it was wrong to shoot the deceased, then and in that event it is your duty to
resolve that doubt in his favor and acquit him on the ground of insanity, and
state that fact in your verdict." 56*3
4611 Mississippi McGill v. State (Miss), 235 ^ Missouri. State v. Brown (Mo), 332 SW2d
S2d 451 (19701 904 (1960).
56J Maine. State v, Benson, 155 Me 1 15, 151 5as Oklahoma. Maghe v. State, 620 P2d 433
A2d 266 (1959). (OklCrunApp 1980).
119 PERTINENCY § 123
§ 123. Ignoring issues in civil cases.
The trial court properly refused an instruction, requested by the plaintiff, on
negligence and proximate cause because before trial the plaintiff had elected
to employ solely the theory of strict liability, and both parties proceeded on that
basis during the course of the trial.61 1
It is the law of the State of Michigan that one who voluntarily places himself
or remains, places himself in or remains in a position which he knows, or with
the reasonable exercise of care should have known is dangerous cannot recover
for any resulting injury.66 1
You are instructed further that if you find that the defendant Wisconsin
Public Service Company had exclusive control of the reactor involved in this
accident, and if you further find that the accident is of a type that ordinarily
would not have occurred had the defendant . . . exercised ordinary care, then
you may infer from the accident itself, and the surrounding circumstances, that
there was negligence on the part of the defendant . . . , unless said defendant
has offered you an explanation of the accident which is satisfactory to you.73'1
Also, with respect to your answer to Question No. 2 inquiring as to the
negligence of the defendant, you are instructed that if you find the defendant
had the right to control the repair work on the coping stone, and if you further
find that the accident claimed is of a type or kind that ordinarily would not
have occurred had the defendant exercised ordinary care, then you may infer
from the accident itself and the surrounding circumstances that there was
negligence on the part of the defendant, unless the defendant has offered you
an explanation of the accident which is satisfactory to you.73'2
The Colorado comparative negligence statute, Colorado Revised Statutes,
§ 13-21-111(1) (1973 & Supp. 1981), eliminates the fourth element of the res
ipsa loquitur doctrine — requirement that the plaintiff be free from
contributory negligence — and modifies the second element of the res ipsa
doctrine — the requirement that there be a finding that it is more likely than
not that the defendant's negligence was the cause of the accident rather than
any conduct on the part of the plaintiff. Therefore, "whenever a court can
reasonably find that the event is of the kind which ordinarily would not occur
in the absence of someone's negligence and that defendant's inferred negli-
gence was, more probably than not, a cause of the injury, the doctrine of res ipsa
loquitur applies even though plaintiffs negligent acts or omissions may also
have contributed to the injury. Once the trial court rules that the doctrine is
applicable, the jury must then compare any evidence of negligence of the
plaintiff with the inferred negligence of the defendant and decide what
percentage of negligence is attributable to each party." 73 3
Adverse possession includes five elements. It must be hostile or adverse;
actual; visible, notorious and exclusive; continuous; and under claim of
ownership. The party asserting adverse possession as a bar to legal title has the
burden of proving that the foregoing elements have .existed for a period of
twenty years or more. In addition, he must prove, by clear and unequivocal
evidence, the location of the boundaries he claims. Such boundaries must be
definitely established at the inception, during the continuance, and at the
completion of the period of adverse possession.83 1
§ 124 INSTRUCTIONS— RULES GOVERNING 120
To involve the doctrine of res ipsa loquitur, three essential elements must be
met: (1) the instrumentality must be under the control or management of the
defendant; (2) the circumstances according to common knowledge and experi-
ence, must create a clear inference that the accident would not have happened
if the defendant had not been negligent; and (3) the plaintiffs injury must have
resulted from the accident.88 1
61 ^Washington. Arnold v Laird, 621 P2d 73-3 Colorado. Montgomery Elevator Co. v
138 (Wash 1980). Gordon, 619 P2d 66 (Colo 1980).
**A Michigan. Milauckas v Meyer, 1 83 1 Illinois. Patient v Stief, 49 IllAppSd 99,
MichApp 500, 136 NW2d 746 (1965). 363 NE2d 927 (1977).
73.1 Wisconsin. Mixis v. Wisconsin Pub. SSA Kentucky. Helton v. Forest Park Baptist
Serv. Co., 26 Wis2d 488, 132 NW2d 769 (1965). Church, 589 SW2d 217 (KyApp 1979)
73-2 Wisconsin. Goebei v. General Bidg. Serv.
Co., 26 Wis2d 129, 131 NW2d 852, at 855
(1965).
§ 124. Ignoring evidence in civil cases.
Now, members of the jury, in the course of his argument to you Mr. Me. made
reference to the nonproduction of certain testimony by Mr. M. relative to
analysis of the stains on the dress. Now, under our law where a party has
control of certain evidence, in this case the dress, it is the rule that the failure
to produce evidence which might have to do with analysis of the dress and its
contents can lead to an inference against the party who does not produce such
evidence; and it was proper for Mr. Me. in his argument to comment on that;
and the Court was wrong in its instructions to you in stating that Mr. Me. was
not entitled to so comment.89'1
89A Wisconsin. Kink v. Combs, 28 Wis2d 65,
135 NW2d 789 (1965).
§ 125. Ignoring issues and evidence in criminal prosecutions.
When the evidence reflects that two or more persons jointly engaged in the
commission of a crime, an instruction on complicity is appropriate the Supreme
Court held.9 1
The Supreme Court held when the evidence reflects that two or more persons
jointly engaged in the commission of a crime, an instruction on complicity is
appropriate.9'2
The instruction, tfthe court instructs the jury that self-defense is not a
defense to the crime charged in the indictment in this case, and self-defense
should not be considered by you in determining your verdict," was properly
given since there was no possible reasonable inference allowing a finding of
self-defense.
There can be no pleading of self-defense if a person provokes a difficulty,
aims his weapon in advance and intends, if necessary, to use his weapon and
overcome his adversary. By doing so, he becomes the aggressor and deprives
himself of the right of se}f-defense. The right of self-defense is thus
nonapplicable unless the aggressor abandons his attack and flees.9 3
It is reversible error for a court to deny a requested instruction in a criminal
trial as long as there is evidence produced at trial which, if believed by the jury,
would support a defense claimed by the defendant. For example, when there
121 PERTINENCY § 125
was testimony in a homicide case that the shooting of the victim could have
been accidental, it was reversible error for the court to deny charging the jury
as follows:
"If you believe that the gun went off accidentally, then you are instructed
that you must return a verdict of not guilty." 23 1
Where a timely and proper objection is made to a charge that fails to apply
the law of the parties to the facts of the case, and where the evidence does not
support submitting the case to the jury on the theory that the defendant was
the sole actor, then it is reversible error for the court to fail to apply the law
of the parties to the facts of the case, notwithstanding the fact that the court
includes in its instructions a charge in the abstract on the law of the parties.
For example, it was error to refuse the following instruction:
"A person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, or by the conduct of another for which he is
criminally responsible, or both. Each party to an offense may be charged with
the commission of the offense.
"Mere presence alone will not make a person a party to an offense. A person
is criminally responsible for an offense committed by the conduct of another if,
acting with intent to promote or assist the commission of the offense, he aids
the other person to commit the offense.
"Therefore, if you believe from the evidence beyond a reasonable doubt that
the Defendant, CHARLES J. RASMUSSEN, either by his own conduct
knowingly and intentionally delivered more than one-fourth ounce of mari-
juana to M. L. FIFE on February , 1977 in Dallas County, Texas, or acting
with intent to promote or assist the commission of the offense aided LEIF
KJEHL RASMUSSEN to commit the offense charged, as defined above, and
that the said LEIF KJEHL RASMUSSEN did on February , 1977 deliver
more than one-fourth ounce of marijuana to M. L. FIFE in Dallas County,
Texas, you will find the Defendant guilty.
"If you do not so believe, or if you have a reasonable doubt thereof, you will
find the Defendant not guilty." The court erred in refusing the defendant's
requested instruction and in submitting instead the following instruction to
the jury:
"Therefore, if you believe from the evidence beyond a reasonable doubt that
the defendant', Charles James Rasmussen, did, in Dallas County, Texas, on or
about the llth day of February, 1977, knowingly or intentionally deliver to M.
L. Fife marijuana in a quantity greater than one-fourth of an ounce, you will
find the defendant guilty as charged in the indictment.
"If you do not believe, or if you have a reasonable doubt thereof, that, at the
time and place alleged, the defendant knowingly or intentionally delivered
marijuana to M. L. Fife, you will find the defendant not guilty.
"All persons are parties to an offense who are guilty of acting together in the
commission of an offense. A person is criminally responsible as a party to an
offense if the offense is committed by his own conduct, by the conduct of another
for which he is criminally responsible, or by both.
"A person is criminally responsible for an offense committed by the conduct
of another if, acting with intent to promote or assist the commission of the
offense, he solicits, encourages, directs, aids, or attempts to aid the other person
to commit the offense.
§ 126 INSTRUCTIONS-RULES GOVERNING 122
"Each party to an offense may be charged with the commission of the offense.
"Mere presence alone at the time and the place of the commission of an
offense, if any was committed, does not constitute one criminally responsible
as a party to the offense." 23 2
9a Colorado. People v. Calvaresi, 600 P2d57 23a New Hampshire. State v Aubert, 421
(Colo 1979K A2d 124 (NH 1980).
9-2 Colorado. People v.Calvaresi, 600 P2d 57 23-2 Texas. Rasmussen v State, 608 SW2d
(Colo 1979). 205 (TexCnmApp 1980).
^Mississippi. Parker v. State, 401 S2d
1282 (Miss 1981).
§ 126* Directing verdict if jury believes certain evidence or finds cer-
tain facts — Formula instructions.
The Supreme Court of Utah has warned against the use of formula instruc-
tions because they may omit essential elements and because they tend to be
argumentative.33"1
*3-1 Utah. Ivie v. Richardson, 9 Utah2d 5, 336
P2d781 11959).
§ I26A. Reformation by instruction.
There are some instances where it is perfectly proper for a trial court judge
to "reform" an earlier, erroneous verdict without resubmitting the issue of
reformation to the jury. This is possible so long as the earlier verdict was not
"fatally defective," e.g., reformation by instruction will be permitted if the
error involved awarding damages to plaintiff tfX" instead of- plaintiff "Y" when
the error was caused by initially submitting the issue of damages to the jury
in a confusing way. For example, in a complicated breach of contract case
involving multiple parties, and where it would have been impractical to
require jury members to go through corporate accounts and checkbooks, the
following instruction, which reformed an earlier verdict when it was apparent
that the plaintiff who was awarded the damages was not the plaintiff who had
suffered the loss, was held well within the discretion of the trial court to give
and proper:
"The Court: Members of the jury, as previously told by the Court, the matter
of liability is not an issue in this case. We are dealing with the issue of
damages.
''Now there are two Plaintiffs in this proceeding, Ronald W. Pickett and
Clifton Building Corporation.
"Now the Court is going to instruct you that at this stage there, and it has
been agreed by counsel representing the Plaintiffs, Ronald W. Pickett and
Clifton Building Corporation that the verdict should be in the name of Clifton
Building Corporation, so the verdict, which you rendered in this case, will, go
in favor of that Plaintiff, it having been concluded that they were the, or that
corporation was the one who sustained any loss that you find to have been
sustained as a result of the evidence which had been admitted here today." 34
123 CONSTRUCTION AND EFFECT § 136
34 Maryland. Sergeant Co. v. Clifton Bldg
Corp., 423 A2d 257 (MdSpecApp 1980).
CHAPTER 6
CONSTRUCTION AND EFFECT
Section Section
135. Interpretation — In general 139 Cure of erroneous instruction by correct
136. Construction of charge as an entirety in instruction in criminal cases.
civil cases. 140. Cure of ambiguous instruction by an-
137 Construction of charge as an entirety in other instruction.
criminal cases. 141. Cure by withdrawal of erroneous mstruc-
138. Cure of erroneous instruction by correct tion
instruction in civil cases.
§ 135. Interpretation — In general.
In determining whether a party has sustained the burden of proof placed
upon him by these instructions, you are not limited to the evidence introduced
by such party. Either party is entitled to the benefit of any evidence tending
to establish his contentions.2 1
An instruction which impliedly refers to evidence adduced during the course
of trial is proper if its clear intent is obvious from preceding instruction or
instructions. For example, the following instruction was held proper on basis
that it was contained in a seven-sentence paragraph instruction within which
five of the seven sentences contained such cautionary words as "plaintiff must
show," "plaintiff must prove," and "plaintiff claims."
The plaintiff would have you believe that the blow Mr. S. sustained on his
head, causing him to lie there for an indefinite period of time — and you will
recall his neck was severely flexed and cramped — actuated or increased the
carotid sinus reflex which set up a chain of reactions causing the heart to
stop.5'1
Whether the language of the challenged instruction as given by the trial
justice invaded the province of the jury is to be determined by how it would
have been understood by an ordinarily intelligent lay person sitting with a jury
when delivered by the court.8"1
2a Nebraska. Hansen v. Strohschein, 178 Co., 1 MichApp 43, 134 NW2d 383 (1965).
Neb 367, 133 NW2d 598 (1965). 8J Rhode Island. State v. Goff, 107 RI 331,
" Michigan. Schreiner v. American Gas. 267 A2d 686 (1970).
§ 136. Construction of charge as an entirety in civil cases.
All of the court's instructions to the jury are to be read and considered as a
whole in determining whether all the necessary law has been correctly stated
to the jury.9-1
Error is not to be read into the charge of a trial judge by isolating small
segments of it. It is not to be considered piecemeal, but with an eye on its
general content.10-1
The propriety of a trial justice's supplementary instruction is determined by
looking at all of the charges as a whole and by looking at the totality of
circumstances. For example, an accidental and unsolicited disclosure to a trial
judge of the jury's numerical split was held to not make the judge's supple-
§ 137 INSTRUCTIONS-RULES GOVERNING 124
mentary instructions prejudicial and improper because their effect had to be
considered in conjunction with all the other charges and in the totality of
circumstances surrounding the giving of the instruction.102
Even though a statute makes criminal the commission of several acts, joined
in the definition by conjunctives, a jury instruction is taken in its entirety or
is taken by looking at the entire series so that an instruction is nevertheless
proper if the several acts are stated as alternative acts and then is followed by
a supplementary instruction because the defendant is guilty if the evidence is
sufficient with respect to any one of the acts charged.25"1
Specific and isolated language in a court's instruction will not make a court's
instruction improper and misleading as long as the total instruction, when
taken as a whole, adequately advises the jury on the issue in question.26 1
A trial court judge is not required to accept and use jury instructions
verbatim as submitted to the court by counsel, and he is free to rephrase or
modify the instructions submitted to him, provided that the substance of the
requested instructions is adequately, accurately, and fairly presented to the
jury.271
Proper instructions should be read and considered as a whole.28 l
This case was an appeal from a decision in favor of defendant, plaintiffs
employer, in a truck collision case. There were numerous instructions that
were excepted to, but the high court sustained all of them, saying that the
charge, read as a whole, submitted the case fairly and fully to the jury.28 2
We recognize the rule that in the consideration of erroneous charges, this
court must look to the charge in its entirety.28 3
This court, in reviewing appellants' alleged error, must look not only to the
particular instruction complained of, but must also review all the instructions
given to the jury.28'4
9-1 Colorado. Montgomery Ward & Co. v. 27U Pennsylvania. Common wealthy. Parks,
Kerns, 172 Colo 59, 470 P2d 34 I 1970). 421 A2d 1135 (PaSuper 1980).
1<u Vermont. Forcier v. Grand Union Stores, 28>1 Iowa. Bengford v. Carlem Corp. (la), 156
Inc., 128 Vt 389, 264 A2d 796 1 1970). NW2d 855 (1968).
10<2 Rhode Island. State v. Rogers, 420 A2d 28"2 Montana. DeWar v. Great Northern Ry.
1363 IRI 1980). Co., 150 Mont 367, 435 P2d 887 (1967).
2511 Connecticut. State v. Lode, 36 2as Georgia. Srochi v. Kamensky, 121
ConnSuper 603, 421 A2d 880 (1980). GaApp 518, 174 SE2d 263 (1970).
264 Maine. State v. Troiano, 421 A2d 41 (Me 28-4 Indiana. Lloyd v. Weimert, 146 IndApp
1980). 666, 21 IndDec 230, 257 NE2d 851 (1970).
§ 137. Construction of charge as an entirety in criminal cases.
Separately numbered instructions are all parts of a single charge and must
be considered as a whole.29'1
It must be made abundantly clear that a shooting must have been with the
intent to kill, wound, or maim, in order to exclude the idea of an accidental
shooting. The following type of instruction satisfies this requirement.
"That the defendant so shot L. H, with either the intent to kill, or the intent
to wound, or the intent to maim L. H." 29-2
When subject matter of a requested instruction has been adequately covered
in other instructions it is not error to refuse a proffered instruction.29*3
A charge to the jury must be evaluated by a reading and consideration
thereof in its entirety.29'4
125 CONSTRUCTION AND EFFECT § 137
The correctness of a charge is not to be determined from mere isolated
statements extracted from it, without reference to their connection with what
precedes, as well as that which follows.29'5
It will be construed contextually, and isolated portions will not be held
prejudicial when the charge as a whole is correct.29'6
I charge you that if you believe, and believe beyond a reasonable doubt, that
the defendant, A.E.N., did in this County in the State of Georgia commit the
offense of murder by unlawfully and with malice aforethought kill and murder
one L.C., a human being, by shooting him with a .38 caliber pistol, thereby
inflicting upon the said L.C. mortal wounds from which he died, contrary to the
laws of said State, and good order, peace and dignity thereof, then you would
be authorized to convict the defendant of the offense of murder as charged in
this bill of indictment.29-7
It is not improper and not reversible error for a trial court judge to comment
on the credibility of a witness when the charge to the jury, taken as a whole,
reveals no prejudice to the parties, and the jury is told that it was within its
sole province to resolve any issues of credibility. For example, it was not error
for the court to state in its charge tp the jury that the court felt that the victim
"testified fairly and truthfully" because the court also stated that "[b]ut that's
for you to determine . . . [Y]ou may be impressed by it [but it's] for you to
determine." Prejudice cannot be based on reading isolated excerpts from the
charges which must be taken as a whole.29'8
For a portion of a charge to the jury to constitute reversible error, the
appellate court will consider the charge, or a series of charges, as an entirety,
and then will ask whether it is reasonably probable that the jury, after hearing
all the charges, were misled.29 9
Any prejudice to the defendant was properly cured when, after a police officer
witness testified that the fingerprint card was used "when we fingerprinted]
people in jail," the court promptly gave a cautionary instruction that the
fingerprint bureau is located in the jail, that people are fingerprinted for other
reasons besides arrest, and that the jury was forbidden from speculating as to
the reason for the fingerprinting of the defendant.30-1
The following instruction on the definition of an accomplice:
"A person who is an accomplice in the commission of a crime is guilty of that
crime.
"A person is an accomplice in the commission of a crime if, with knowledge
that it will promote or facilitate the commission of a crime, he or she aids
another person in planning or committing the crime. The word 'aid' means all
assistance whether given by words, acts, encouragement, support or presence,"
was not error, even though the instruction could have been more artfully
redrawn to have read:
"A person is an accomplice in the commission of a crime if he or she aids
another person in planning or committing the crime, with knowledge that it
will promote or facilitate the commission of a crime. The word 'aid' means all
assistance, whether given by words, acts, encouragement, support or
presence." 30 2
A jury charge which instructed:
§ 137 INSTRUCTIONS— RULES GOVERNING 126
"Now, with respect to the verdict, it must be unanimous, the Jury's verdict
must be unanimous to be valid" was held not erroneous because this charge
was given after a previous charge which instructed:
"Your verdict has to be unanimous. . . . That does not mean that you cannot
have your own opinion. Discuss your opinion amongst yourselves and try to
resolve those opinions if there is a difference of opinion. ..." so that the charge
to the jury, when taken as a whole, did not mislead the jurors into thinking that
they must forsake their individual opinions as to guilt or innocence in order to
arrive at a unanimous verdict.34 1
Specific and isolated language in a court's instruction will not make a court's
instruction improper and misleading as long as the total instruction, when
taken as a whole, adequately advises the jury on the issue in question.40'1
As a general proposition, the trial court has discretion in charging the jury,
and the instructions will be held proper and non-prejudicial so long as that,
considering them in their entirety, they accurately, properly, and fairly state
the law as applied to the facts in the case. This discretion extends to refusal of
requests and to cautionary instructions as well. Foi1 example, when testimony
was offered against the defendant by an accomplice that had turned State's
evidence, it was held proper and not prejudicial error for the court to refuse to
give the following standardized jury instruction on accomplices:
"An accomplice witness is one who testifies that he was involved in the
commission of the crime with which the defendant is charged. You should
consider with caution testimony of an accomplice if it is not supported by other
evidence" [emphasis supplied] and instead to give the following instruction
relating to the credibility of witnesses in general and not specifically men-
tioning the need to corroborate accomplice testimony:
"It is for you to determine the weight and credit to be given the testimony
of each witness. You have a right to use that knowledge and experience which
you possess in common with men in general, in regard to the matter about
which a witness has testified. You may take into account his ability and
opportunity to observe and know the things about which he or she has testified,
his memory, manner, and conduct while testifying, any interest he may have
in the result of this trial, and the reasonableness of his testimony considered
in the light of all the evidence in this case.
"If you find that any witness has willfully testified falsely concerning any
material matter, you have a right to distrust the testimony of that witness in
other matters, and you may reject all or part of the testimony of that witness,
or you may give it such weight as you think it deserves. You should not reject
any testimony without cause." 47U
M'1 Missouri. State v. Lee < Mo), 404 SW2d 29-7 Georgia. Nunnally v. State, — Ga — , 221
740 (1966). SE2d 547 (1975).
^^ Nebraska. State v. Moss, 182 Neb 502, 2a8 Pennsylvania. Commonwealth v.
155 NW2d 435 (1968). Whiting, 420 A2d 662 (PaSuper 1980).
*** Alaska. Merrill v. Faltin (Alaska), 430 2" Connecticut. State v. Anonymous, 36
P2d 913 (1967). ConnSupp 583, 421 A2d 872 (1980).
**A Pennsylvania. Commonwealth v. Toney, 3(u Nevada. Owens v. State, 620 P2d 1236
439 Pa 173, 266 A2d 732 (1970). (Nev 1980).
^ Maine. State v. Small (Me), 267 A2d 912 30-2 Washington. State v. Rotunno, 621 P2d
(1970). 191 (WashApp 1980).
296 North Carolina. State v. Lee, 277 NC 34*1 Pennsylvania. Commonwealth v.
205, 176 SE2d 765 (1970). Stevenson, 421 A2d 729 (PaSuper 1980).
127 CONSTRUCTION AND EFFECT § 139
40 1 Maine. State v. Troiano, 421 A2d 41 (Me 47A Kansas. State v. Ferguson, 288 Kan 522,
1980) 618 P2d 1186(1980).
§ 138. Cure of erroneous instruction by correct instruction in civil
cases.
It is prejudicial error for the trial court to grant a charge that does not take
into account all the presented testimony. For example, the following charge
was found to be prejudicial error because the charge related only to the ques-
tion of parking on the highway, and did not deal with the situation, for which
there was testimony, of stopping on the roadway in order to let someone by or
to momentarily allow traffic to pass:
"Three, the Pennsylvania Motor Vehicle Code prohibits any person from
stopping a motor vehicle on a roadway without leaving a clear and
unobstructed width remaining for the free passage of vehicles coming in the
opposite direction; affirmed."
There should have been included additional commentary by the court
drawing the jury's attention to the fact that stopping along the side of the
roadway would be proper and not negligent if done for a proper purpose and
under proper circumstances.59 l
If an erroneous and a correct instruction are given on a material matter, a
new trial must be granted. The jury does not know which one is correct and the
court does not know which one the jury followed.71 1
59<1 Pennsylvania. Kuhn v. Michael, 423 7ia North Carolina. In re Shute's Will, 251
A2d 735 (PaSuper 1980). NC 697, 111 SE2d 851 (1960).
1 § 139. Cure of erroneous instruction by correct instruction in criminal
cases.
Although the trial court erroneously charged the jury on the weight to be
given evidence of good character and then, at the insistence of the state and
over the objection of defense counsel, recalled the jury and instructed them as
follows:
"[T]he state, well, an attorney attracted my attention, the district attorney,
to a charge I gave you on good character. It is my duty , . . that I erroneously
gave you that charge and I believe he is probably right You are, therefore,
instructed to eliminate the charge from your mind and memory; it is not
applicable. By this charge I do not imply that the defendant has bad character
nor do I imply that he has good character. I am saying to you it is not relevant:
Therefore, it should not be taken into consideration,"
this was not error because the trial court judge nevertheless instructed the jury
not to consider the issue of character in one way or another.73 l
An instruction that if the jury cannot agree on defendant's insanity, then the
presumption of sanity prevails is not cured by a correct instruction on the
defendant's burden of proof of insanity.87'1
Although a correct written charge does not cure a defect in the oral charge,
the whole charge construed together may cure the defect.87'2
Members of the jury, after you retired, or just as you retired, I had a confer-
ence with the attorneys and it did appear that in one place during the course
§ 140 INSTRUCTIONS— RULES GOVERNING 128
of my instructions to you that I may have used a term which you could
misinterpret. During my restatement of the evidence, or my summary of the
evidence, I used at one point that the evidence of the State tended to show that
the defendant had sexual relations with the State's witness, against her will.
I also used the term "and that before the rape." I did not in any way mean to
indicate to you that I felt that there was a rape in the case, but only that the
State's evidence tended to show that before the sexual relation is against the
will of the witness, then certain things happened, and I wanted to make sure
that you fully understood that I was not in any way attempting to suggest to
you that there was a rape, but only that the State's evidence tended to show
that there was sexual relations against the will of the State's witness, only if
you believe the State's evidence would you so find.87 3
Even though a statute makes criminal the commission of several acts, joined
in the definition by conjunctives, a jury instruction is taken in its entirety or
is taken by looking at the entire series so that an instruction is nevertheless
proper if the several acts are stated as alternative acts and then is followed by
a supplementary instruction because the defendant is guilty if the evidence is
sufficient with respect to any one of the acts charged.87'4
The instruction on the lesser included offense of deviate sexual conduct was
improperly modified by the trial judge due to jury inquiry during deliberation.
By amending the instruction to include "Sexual gratification may or may not
include ejaculation" and "Webster defines gratification as a source of gratifica-
tion or pleasure," the trial judge was in error; the changing of an instruction
already given to the jury before their deliberation is improper unless omitted
words are added or if the original instruction was incorrect. Here the word
inquired of was within the jury's common competence to understand, and the
original instruction was not legally insufficient.87 5
Charging a jury on an old law, which required a mandatory death penalty
and had been found unconstitutional and repealed prior to the trial, was in
error. The error was not cured by a proper instruction in penalty; the law
declared by the judge must be current and correct.
The instruction given to the jury at the penalty stage was not erroneous if
the court refused to instruct the jury that if they failed to reach unanimity the
court would be required to impose life imprisonment. Defendant was not enti-
tled to have jury so instructed because this part of the statute is addressed to
the trial court only and need not be divulged to the jury.87 6
73a Georgia. Carroll v. State, 271 SE2d 650 87A Connecticut. State v. Lode, 36
(GaApp. 1980). ConnSuper, 421 A2d 880 (1980).
87a Rhode Island. State v.Harris, 89 RI 202, 87-5 Indiana. Jenkins v. State, 424 NE2d
152 A2d 106 (1959), 1002 find 1981).
*** Alabama. Wright v. State, 269 Ala 131, 876 South Carolina. State v. Adams, 283
111 S2d 596 (1959). SE2d 582 (SC 1981).
*7-3 North Carolina. State v. Poole, — NC — ,
220 SE2d 320 (1975).
§ 140. Cure of ambiguous instruction by another instruction.
Refusal of a requested instruction will be error only if the requested instruc-
tion "clearly and directly" called the attention of the trial court judge to its
error. Refusal of a requested instruction is not error when the requested
instruction itself is erroneous. Thus, in a malpractice action, the following
129 CONSTRUCTION AND EFFECT § 140
instruction given by the trial court judge was not so "clearly erroneous" as to
constitute error:
"It is claimed by the defendants and denied by the plaintiff that the plaintiff
did not file her complaint within two years from the date that her cause of
action arose. In this connection, I instruct you that the statutory law of the
State of Oregon provides that a cause of action for medical malpractice arises
when the injury is first discovered or in the exercise of reasonable care should
have been discovered, and a complaint for that injury must be filed within two
years from that date. An injury is discovered when a reasonably prudent
person associates her symptoms with a serious or permanent condition and at
the same time perceives that the defendants played some role in causing or
inducing that condition. "
This was especially so in light of the fact that the requested instruction of
the plaintiff was itself erroneous:
"Each of the defendants claim as an affirmative defense that plaintiff did not
file her action against them within the time limited by law in the State of
Oregon. Under the law, an action to recover damages for injuries to the person
arising from any medical operation, shall be commenced within two years from
date when the injury is first discovered or in the exercise of reasonable care,
should have been discovered. Plaintiff claims that she did not and could not in
the exercise of reasonable care, have discovered the cause, nature and extent
of her injury more than two years before she filed her lawsuit.
"In determining whether this case was filed within the period of limitations,
there are certain undisputed facts which you shall consider. First, there is no
question but that plaintiffs surgery was performed on October 22, 1975, and
if any negligence occurred on the part of any of the defendants, it was on that
date. Secondly, there's no question but that plaintiffs action for damages was
filed on November 3, 1977.
"In determining whether or not, under the evidence, plaintiff was aware of
her injury more than two years before November 3, 1977. [sic] In connection
with this issue, you are instructed that under the meaning of this statute, the
word 'injury* refers to not only ^discovery of the injury9 but also, ^discovery of
the negligence* which lead [sic] to the injury. In order for plaintiff to be barred
from maintaining this action, it is not only necessary that she knew she
suffered an injury to her body before November 3, 1975, but also, that she knew
of the true cause of her injury and the true nature of the negligence of one or
more of the defendants, which lead [sic] to this injury, sometime before
November 3, 1975. The other basis for barring plaintiffs right to maintain the
action is if under the evidence, plaintiff, in the exercise of reasonable care,
should have discovered the true cause of her injury and the true nature of the
negligence of one or more of the defendants. If you find that under the evidence
plaintiff did not know these things before November 3, 1975 and could not have
discovered them, in the exercise of reasonable care between October 22 and
November 3, 1975, then she is not barred from maintaining this action." 89-1
Even though a statute makes criminal the commission of several acts, joined
in the definition by conjunctives, a jury instruction is taken in its entirety or
is taken by looking at the entire series so that an instruction is nevertheless
proper if the several acts are stated as alternative acts and then is followed by
a supplementary instruction because the defendant is guilty if the evidence is
sufficient with respect to any one of the acts charged.89'2
§ 141 INSTRUCTIONS— RULES GOVERNING 130
83-1 Oregon. Sculace v. Rogers, 619 P2d 1316 892 Connecticut. State v. Lode, 36
(OrApp 1980). ConnSuper 603, 421 A2d 880 (1980).
§ 141. Cure by withdrawal of erroneous instruction.
Although the trial court erroneously charged the jury on the weight to be
given evidence of good character and then, at the insistence of the state and
over the objection of defense counsel, recalled the jury and instructed them as
follows:
"[T]he state, well, an attorney attracted rny attention, the district attorney,
to a charge I gave you on good character. It is my duty . . . that I erroneously
gave you that charge and I believe he is probably right. . . . You are, therefore,
instructed to eliminate the charge from your mind and memory; it is not
applicable. By this charge I do not imply that the defendant has bad character
nor do I imply that he has good character, I am saying to you it is not relevant:
Therefore, it should not be taken into consideration,"
this was not error because the trial court judge nevertheless instructed the jury
not to consider the issue of character in one way or another.91 1
**-1 Georgia. Carroll v. State, 271 SE2d 650
(GaApp 1980).
CHAPTER 7
REQUESTS
Section Section
150. Duty to make timely request and tender 156. Modification of requested instructions.
proper instructions in civil cases. 157. Refusal for errors in request.
151. Duty to make timely request and tender 158. Refused instructions in civil cases sub-
proper instructions in criminal cases. stantially covered by other instruc-
152. Requests for further or more specific tions given.
instructions in civil cases. 158 A. Refusal of voir dire questions.
153. Requests for further or more specific 159. Refused instructions in criminal cases
instructions in criminal cases. substantially covered by other instruc-
153A. Request for instruction granted tions given.
— Estoppel. 161. Requests for special verdict or findings
154. Formal requisites of requests. on interrogatories by jury.
155. Necessity of clear expression in
requested instruction.
§ 150. Duty to make timely request and tender proper instructions in
civil cases.
The trial court did not err, in the absence of a proper request, in failing to
define for the jury what is meant by "unique and special economic value to the
owner of the property taken and damaged." 1 1
Requests to charge must be timely and properly submitted in writing.1"2
The judge must charge the jury on every substantial and essential feature
of a case. However, if a subordinate feature is desired by a party to be presented
specifically to the jury, then the party must request such an instruction.2'1
No exception was taken at trial to the portion of the charge attacked in
enumeration seven. This presents nothing for review,43-1
Pennsylvania court rules and statutes require requests to be made "before
the close of the .argument to the jury." A request made after the arguments, but
131 REQUESTS § 151
before the court's charge, is still made before the close of the argument to the
jury. Besides, the trial judge may, within his discretion, waive the require-
ment.601
Despite the criticism of the "but for" language used in the standard proxi-
mate cause jury instruction, the trial judge is allowed to exercise his or her
discretion in selecting a preference between the standard proximate cause
instruction or the legal cause instruction.60 2
1A Georgia. Bowers v. Fulton County, 122 Contractors, Inc., 122 GaApp 1, 176 SE2d 212
GaApp 45, 176 SE2d 219 (1970). (1970).
l* Georgia. Slaughter v. Linder, 122 GaApp 6ai Pennsylvania. Shula v. Warren, 395 Pa
144, 176 SE2d-450 (1970). 428, 150 A2d 341 (1959).
ZA North Carolina. State Highway Comm 60-2 California. Fraijo v. Hartland Hospital,
v. Fry, 6 NCApp 370, 170 SE2d 91 (1969) 99 CalAppSd 344, 160 CalRptr 246 (1979).
43-1 Georgia. McChargue v. Black Grading
§ 151. Duty to make timely request and tender proper instructions in
criminal cases.
An accomplice testifying for the prosecution is generally regarded as an
interested witness, and a defendant, upon timely request, is entitled to an
instruction that the testimony of the accomplice should be carefully
scrutinized. Since an instruction to carefully scrutinize an accomplice's testi-
mony is a subordinate feature of the trial, the trial judge is not required to so
charge in the absence of a timely request for the instruction. But when a
defendant makes a request in writing and before argument to the jury for an
instruction on accomplice testimony, the court should give such instruction.
And once the judge undertakes to instruct the jury on such subordinate issue
it must do so accurately and completely. The court, however, is not required to
give the requested instruction in the exact language of the request, but is only
required to give such instruction in substance.
In present case, concerning Clark, the trial judge instructed the jury:
"Now, as to the witness Clark, I instruct you that he is in Law what is known
as an accomplice. And our Court has said that a person may be convicted on
the unsupported testimony of an accomplice, if that testimony is believed by
the Jury. However, in considering the weight and credibility you will give to
the testimony of Clark, I instruct you that you should carefully examine his
testimony for the purpose of determining what weight and credibility it
deserves. You should scrutinize it with care, all to the end that you will deter-
mine whether he is truthful or not, because in Law, an accomplice does have
an interest and bias in the case and in what your verdict will be.
"So, Members of the Jury, it's dangerous to convict upon the testimony of an
accomplice but if you find that he is truthful, then you may, if you are satisfied
from the evidence and beyond a reasonable doubt, convict upon his
unsupported testimony." 57"1
The defendant made no written request for instructions on any particular
phase of the case. The court properly charged that the defendant was presumed
to be innocent and that "(t)he burden of proof is upon the State to satisfy you
on the evidence and beyond a reasonable doubt of the defendant's guilt." Thus,
the court properly required that in order to convict, the State must prove the
defendant guilty from the evidence and beyond a reasonable doubt. We hold
that no error is made to appear in the charge of the court to the jury.61'1
§ 151 INSTRUCTIONS— RULES GOVERNING 132
In the case at bar, the record shows that defendant neither offered nor
requested an instruction to the effect that he could be found guilty of assault,
a lesser offense. The question was initially raised by C. in his assignments of
error. It came too late. By failing to offer or request such an instruction he
waived any right he may have had to it.6L2
These assignments present no question for the court's determination, for
they do not set out that portion of the charge which defendant contends is an
erroneous statement of the law.61 3
Defendant did not object to this instruction in the trial court and, therefore,
it is not necessary to consider the question here.61 4
Hence the general rule applies that objections to the charge in stating the
contentions of the parties must be called to the court's attention in apt time to
afford opportunity for correction. Otherwise an exception thereto will not be
considered on appeal61 5
A trial court is not under a duty to give an instruction on the issue of sanity,
sua. sponte, where no jury instruction on insanity was requested, and where
there never was a request for a "not guilty by reason of insanity" form of
verdict, even though defendant testified in a "bizarre" manner, e.g. defendant,
in a perjury trial, testified that he gave the alleged perjured testimony because
he was "obeying an edict of Christ." Therefore, the defendant did not present
sufficient evidence to cause a reasonable doubt as to the defendant's sanity so
as to shift the burden of proof on the State to prove sanity beyond a reasonable
doubt.621
As long as the trial court has given counsel adequate opportunity to make
requests for instructions and to take exception to the trial court's charge,
counsel cannot complain on appeal that his client was prejudiced by an instruc-
tion of the trial court because counsel's failure to take exception or request a
charge at the time of trial deprived the trial court of its opportunity to grant
effective relief.63 1
An omission to charge on a particular point cannot be assigned as error
where no instruction on the point has been requested.72 1
Following a determination by the trial court judge that the com-
plainant-victim, a child five years of age, was capable of and understood her
duty to tell the truth, the trial court properly refused the defendant's requested
instruction to the effect that the jury should scrutinize and analyze the victim's
testimony with great care if it found her testimony to be uncorroborated
because the essence of this request was covered by other instructions given to
the jury by the trial court judge.72"2
A trial court judge properly refused to give the following cautionary instruc-
tion because it constituted an improper comment by the court on the evidence
and usurped the function of the jury:
"An accomplice is a person who helped commit a crime, or advised or encour-
aged a person to commit a crime. You must determine whether any witness in
this case is an accomplice.
"The evidence of an accomplice should be received with great caution."
"The testimony of an accomplice ought to be viewed with distrust. This does
not mean that you may arbitrarily disregard such testimony, but you should
give to it the weight to which you find it to be entitled after examining it with
care and caution and in the light of all the evidence in the case." 73'1
133 REQUESTS § 151
As a general proposition, the trial court has discretion in charging the jury,
and the instructions will be held proper and non-prejudicial so long as that,
considering them in their entirety, they accurately, properly, and fairly state
the law as applied to the facts in the case. This discretion extends to refusal of
requests and to cautionary instructions as well. For example, when testimony
was offered against the defendant by an accomplice that had turned State's
evidence, it was held proper and not prejudicial error for the court to refuse to
give the following standardized jury instruction on accomplices:
"An accomplice witness is one who testifies that he was involved in the
commission of the crime with which the defendant is charged. You should
consider with caution testimony of an accomplice if it is not supported by other
evidence" [emphasis supplied] and instead to give the following instruction
relating to the credibility of witness.es in general and not specifically men-
tioning the need to corroborate accomplice testimony:
"It is for you to determine the weight and credit to be given the testimony
of each witness. You have a right to use that knowledge and experience which
you possess in common with men in general, in regard to the matter about
which a witness has testified. You may take into account his ability and
opportunity to observe and know the things about which he or she has testified,
his memory, manner, and conduct while testifying, any interest he may have
in the result of this trial, and the reasonableness of his testimony considered
in the light of all the evidence in this case.
"If you find that any witness has willfully testified falsely concerning any
material matter, you have a right to distrust the testimony of that witness in
other matters, and you may reject all or part of the testimony of that witness,
or you may give it such weight as you think it deserves. You should not reject
any testimony without cause." 73'2
Utah Code Annotated, § 77-31-18 (1979 & Supp. 1981), expressly permits
giving a cautionary instruction whenever the prosecution relies on the
uncorroborated testimony of an accomplice:
"Conviction on uncorroborated testimony of accomplice — Cautionary
instruction. — (1) A conviction may be had on the uncorroborated testimony of
an accomplice.
(2) In the discretion of the court, an instruction to the jury may be given to
the effect .that such uncorroborated testimony should be viewed with caution,
and such an instruction should be given if th6 trial judge finds the testimony
of the accomplice to be self contradictory, uncertain, or improbable." 73"3
Appellant first contends that the trial court committed prejudicial error in
failing to instruct sua sponte that evidence of a defendant's non-tape recorded
admissions must be viewed with caution. The rule is firmly established that
such an instruction, when called for by the evidence, must be given, even
without a request therefor An admission is "any statement by an accused
relative to the offense charged." 75 1
A charge on circumstantial evidence is required only when the evidence of
the main fact that is essential to the guilt or innocence of the defendant is
purely and entirely circumstantial in nature.79 l
It is not error to fail to charge on an alibi defense when there has been no
timely request made for it and when the only basis for the alibi defense consists
of the defendant's unsworn statement.81 1
§ 151 INSTRUCTIONS— RULES GOVERNING 134
The defendant is not entitled to a separate jury instruction on the alibi
defense so long as adequate and proper instructions were given on (1) the
elements of the crime charged and on (2) the burden of the prosecution to prove
the guilt of the defendant beyond a reasonable doubt.81 2
Generally, evidence of prior bad acts or convictions may not be introduced
into evidence. However, there are the two following exceptions whereby such
evidence may be introduced, provided the jury receives a limiting instruction
as to the purpose of the evidence:
(1) To complete the story of the crime by proving its immediate relationship
to other happenings near in time or place, and
(2) To show, by similar acts or incidents, that the act on trial was not
inadvertent, accidental, unintentional or without guilty knowledge.88 1
Defendant contended that the failure of the trial court to give an entrapment
instruction denied him a fair trial. He made no request for such an instruction,
and that issue was not properly before the court. By way of holding the court
said that ordinarily, entrapment requires the instigation of the criminal act by
the police. In the instant case there was no evidence that the criminal act was
instigated by the police, even though there was evidence of the use of an
informer.89-1
A defendant is not entitled to the trial court judge, sua sponte, giving an
instruction to the jury on a lesser offense unless: (1) one of the parties has
requested an appropriate instruction; (2) it is not possible to commit the
greater offense without committing the lesser offense; (3) there is evidence
introduced which would justify a conviction on the lesser offense; and (4) the
proof is in dispute to such a degree that the jury could find the defendant guilty
of the lesser offense but innocent of the greater offense. For example, in a
larceny ca'se, the trial court did not err in refusing to instruct the jury on the
lesser included offense of larceny in the fourth degree because no evidence was
presented on the value of the property stolen, which would have determined the
applicable degree of larceny.94 1
The due process clause of the United States Constitution requires that a
lesser included offense should be charged by the trial court judge whenever
"there is a rational basis in the evidence presented for a verdict acquitting the
defendant of the offense charged and convicting him of the [lesser] included
offense." For example, it was error for the court not to charge the jury at the
trial of a defendant charged with burglary on the elements of the lesser
included offense of criminal trespass.95'1
A defendant is entitled to a jury instruction on a lesser included offense
whenever there is any evidence introduced which would justify a reasonable
juror in concluding that the defendant committed the lesser included offense
although not the greater charged offense. For example, it was held that a
defendant, who was charged with first-degree assault, was entitled to a jury-
instruction on the lesser-included offense of simple assault when there was
testimony by the defendant that he drove his car rapidly at police officers not
to hit or injure them, but to spray them with slush, and that he swerved onto
the embankment and away from them in a reflex action when he saw one of
the officers draw his weapon.95 2
Finally, defendant claims that the trial court should have, sua sponte,
instructed the jury to disregard the restraints, "In those instances when visible
135 REQUESTS § 151
restraints must be imposed the court shall instruct the jury sua sponte that
such restraints should have no bearing on the determination of the defendant's
guilt. However, when the restraints are concealed from the jury's view, this
instruction should not be given unless requested by defendant since it might
invite initial attention to the restraints and thus create prejudice which would
otherwise be avoided." 97-1
For example, when the defendant requested the trial court to give the
following instruction:
"Where a person commits an act without being conscious thereof, such act is
not criminal even though, if committed by a person who was conscious, it would
be a crime.
"This rule of law applies only to cases of the unconsciousness of a person of
sound mind, in which there is, no functioning of the conscious mind," and that
instruction was so given by the court without the objection of the defendant,
the defendant cannot claim on appeal that the instruction, as requested and
given, improperly limited the defendant in his defense to one theory and
excluded others.13-1
The defendant must, and not the trial judge sua. sponte , request instructions
limiting the application of evidence to a particular purpose.15 l
[F]ailure to instruct jury with regard to defense of good motive required a
new trial, notwithstanding defense counsel's failure to request such an instruc-
tion.15-2
When such an instruction [diminished capacity] is requested by the defen-
dant, the trial judge's task is quite different from that required for sua sponte
instructions. By the defendant requesting the instruction, the court knows that
the defendant is relying on that defense. Its inquiry then focuses on the
sufficiency of such evidence. "It is well settled that if the defendant requests
an instruction it must be given if there is any evidence on that issue deserving
of any consideration whatsoever. . . ." Even where there is conflicting evidence
on this issue, nevertheless the law requires that "[hjowever incredible the
testimony of a defendant may be he is entitled to an instruction based upon the
hypothesis that it is entirely true."15 3
The failure to renew a request for an instruction on the limited use of
evidence of similar bad acts at the time jury is instructed waives any error.15-4
A trial justice does not abuse his discretion when he lacks, sua sponte, to give
a limiting instruction at the very moment of impeachment instructing the jury
that a prior, inconsistent statement can be considered by them not for its
substantive content but only as it reflects on the credibility of a witness.
Although the trial justice is obliged to give such a limiting instruction, the
timing of the instruction is left to his or her discretion, and may be given by
the trial justice at any time,15*5 -
57a North Carolina. State v. Abernathy, 295 63*4 Illinois. People v. Mallett, 45 I112d 388,
NC 244, 244 SE2d 373 (1978). 259 NE2d 241 (1970).
^ North Carolina. State v. Britt, 8 NCApp 81:5 North Carolina, State v. Lee, 277 NC
262, 174 SE2d 69 (1970). 205, 176 SE2d 765 (1970).
61-2 Virginia. Chittum v. Commonwealth, 62'1 Arizona. State v. Cannon, 618 P2d 641
211 Va 12, 174 SE2d 779 (1970). (ArizApp 1980).
60 North Carolina. State v. Benton, 276 ^ Maryland. Dove v. State, 423 A2d 597
NC 641, 174 SE2d 793 (1970). (MdSpecApp 1980).
§ 152 INSTRUCTIONS— RULES GOVERNING 136
75U Idaho. State v. Gee, 93 Idaho 636, 470 94<l Connecticut. State v. Lode, 36
P2d 296 (1970). ConnSuper 603, 421 A2d 880 (ConnSuper
72-2 Maine. State v Bussey , 423 A2d 244 (Me 1980 ).
1980). 95>1 Delaware. Gates v. State, 424 A2d 18
73-! Arizona. State v. Bussdieker, 621 P2d 26 (Del 1980).
(Ariz 1980). 95-2 Washington. State v. Jimerson, 27
73-2 Kansas. State v. Ferguson, 288 Kan 522, WashApp 415, 618 P2d 1027 ( 1980).
618 P2d 1186 1 1980). 97 1 California. People v. Zatko, 80 CalAppSd
73-3 Utah. Utah v, Hallett, 619 P2d 335 (Utah 534, 145 CalRptr 643 ( 1978).
1980). 13-J Wyoming. Settle v. State, 619 P2d 387
75-1 California. People v. Palmer, 80 (Wyo 1980).
CalAppSd 239, 145 CalRptr 466 (1978) 1"5>1 Arizona. State v. Haley, 87 Ariz 29, 347
79-1 Texas. Faulk v. State, 608 SW2d 625 P2d 692 (1960).
(TexCrimApp 1980 ). 15 2 Minnesota. State v. Hembd, — Minn — ,
81-* Georgia. Smith v State, 271 SE2d 654 232 NW2d 872 (1975).
(GaApp 1980). 15'3 California. People v. Stevenson, 79
81-2 Kansas. State v. Dailey, 228 Kan 566, CalAppSd 976, 145 CalRptr 301 (1978).
618 P2d 833 (1980). 15-4 Michigan. People v. Valoppi, 61
s*-1 Oregon. State v. Lee, 49 OrApp 131, 619 MichApp 470, 233 NW2d 41 ( 1975).
P2d 292 (1980). 15-5 Rhode Island. State v. Vargas, 420 A2d
m-1 Minnesota. State v. EHason, 279 Minn 809 (RI 1980).
70, 155 NW2d 465 (1968).
§ 152. Requests for further or more specific instructions in civil cases.
Refusal of a requested instruction will be error only If the requested instruc-
tion "clearly and directly" called the attention of the trial court judge to its
error. Refusal of a requested instruction is not error when the requested
instruction itself is erroneous. Thus, in a malpractice action, the following
instruction given by the trial court judge was not so "clearly erroneous" as to
constitute error:
"It is claimed by the defendants and denied by the plaintiff that the plaintiff
did not file her complaint within two years from the date that her cause of
action arose. In this connection, I instruct you that the statutory law of the
State of Oregon provides that a cause of action for medical malpractice arises
when the injury is first discovered or in the exercise of reasonable care should
have been discovered, and a complaint for that injury must be filed within two
years from that date. An injury is discovered when a reasonably prudent
person associates her symptoms with a serious or permanent condition and at
the same time perceives that the defendants played some role in causing or
inducing that condition. "
This was especially so in light of the fact that the requested instruction of
the plaintiff was itself erroneous:
"Each of the defendants claim as an affirmative defense that plaintiff did not
file her action against them within the time limited by law in the State of
Oregon. Under the law, an action to recover damages for injuries to the person
arising from any medical operation, shall be commenced within two years from
date when the injury is first discovered or in the exercise of reasonable care,
should have been discovered. Plaintiff claims that she did not and could not in
the exercise of reasonable care, have discovered the cause, nature and extent
of her injury more than two years before she filed her lawsuit.
"In determining whether this case was filed within the period of limitations,
there are certain undisputed facts which you shall consider. First, there is no
question but that plaintiffs surgery was performed on October 22, 1975, and
if any negligence occurred on the part of any of the defendants, it was on that
137 REQUESTS § 152
date. Secondly, there's no question but that plaintiffs action for damages was
filed on November 3, 1977.
"In determining whether or not, under the evidence, plaintiff was aware of
her injury more than two years before November 3, 1977. [sic] In connection
with this issue, you are instructed that under the meaning of this statute, the
word 'injury' refers to not only "discovery of the injury' but also, 'discovery of
the negligence' which lead [sic] to the injury. In order for plaintiff to be barred
from maintaining this action, it is not only necessary that she knew she
suffered an injury to her body before November 3, 1975, but also, that she knew
of the true cause of her injury and the true nature of the negligence of one or
more of the defendants, which lead [sic] to this injury, sometime before
November 3, 1975. The other basis for barring plaintiffs right to maintain the
action is if under the evidence, plaintiff, in the exercise of reasonable care,
should have discovered the true cause of her injury and the true nature of the
negligence of one or more of the defendants. If you find that under the evidence
plaintiff did not know these things before November 3, 1975 and could not have
discovered them, in the exercise of reasonable care between October 22 and
November 3, 1975, then she is not barred from maintaining this action." 16*1
During the trial of the defendant for manslaughter by automobile, the court
gave the following instruction:
"You may also consider the manner of driving, to wit, you have heard
descriptions of how the Pacer was being operated, and you may consider its
course southerly on the Belair Road. You may consider the testimony of such
witnesses as Judith Gloria and Wayne Dircks, who were in cars that
encountered the Pacer prior to the accident between the Pacer and the 1970
LeMans, driven by Constance Linn," which defense counsel excepted to, but
then saved until after the jury had retired, which was:
"[Defense counsel]: I would take exception to the Court's instruction relating
to Judith Mae Gloria and Constance Linn and any others to the effect that they
testified as to how Mr. Morrow's car was being driven prior to the accident, and
they did not testify that the automobile was Mr. Morrow's and were barely able
to identify the automobile, at all, and, therefore, I request an instruction to the
effect that they were unable to identify Mr. Morrow's automobile as the auto-
mobile which was involved in the accident, and, therefore, the jury cannot
conclude from their testimony that the same automobile they saw was Mr.
Morrow's automobile."
On appeal, it was held that defense counsel could not complain of any errors
in the court's original instruction because by "saving" his objection and
requested instruction and not making it part of the record, defense counsel had
deprived the trial court of the opportunity to correct the erroneous instruc-
tion.16-2
Although misdirection may be error, nondirection, in the absence of a
request, is never error.23 1
If a party believes an instruction is ambiguous, he must submit a clarifying
instruction. But this rule does not apply if the questioned instruction "is
erroneous as a matter of law." 23 2
§ 153 INSTRUCTIONS— RULES GOVERNING 138
16.1 Oregon. Sculace v. Rogers, 619 P2d 1316 23 2 Missouri. Bramson v Henley (Mo), 353
(OrApp 1980). SW2d 609 (1962). It is not clear what is meant
1612 Maryland. Morrow v. State, 423 A2d 251 by "a matter of law" Are not all erroneous
(MdSpecApp 1980). instructions "erroneous as a matter of law"?
^ Washington. State v. Myers, 53 Wash2d
446, 334 P2d 536 (1959).
§ 153. Requests for further or more specific instructions in criminal
cases.
For example, when the defendant requested the trial court to give the
following instruction:
"Where a person commits an act without being conscious thereof, such act is
not criminal even though, if committed by a person who was conscious, it would
be a crime.
"This rule of law applies only to cases of the unconsciousness of a person of
sound mind, in which there is no functioning of the conscious mind," and that
instruction was so given by the court without the objection of the defendant,
the defendant cannot claim on appeal that the instruction, as requested and
given, improperly limited the defendant in his defense to one theory and
excluded others.27-1
In instructing the jury on the elements of the offense of assault and battery,
it is not plain error to omit the element of "apparent ability to inflict harm" in
the charge. For example, it was held that the essence of the crime is an
"unlawful touching," that it would be superfluous to require, in addition, proof
of an "apparent ability to unlawfully touch/' so that an instruction omitting a
charge on "apparent ability" was plain error so as to require reversal even
though the defendant failed to object to the instruction.27-2
Normally if defendant's counsel fails to request additional instructions, a
conviction will not be reversed. But the court will reverse if the trial court's
failure to instruct upon some material issue deprived defendant of his substan-
tial rights.4- -1
The instruction on the lesser included offense of deviate sexual conduct was
improperly modified by the trial judge due to jury inquiry during deliberation.
By amending the instruction to include "Sexual gratification may or may not
include ejaculation" and "Webster defines gratification as a source of gratifica-
tion or pleasure," the trial judge was in error; the changing of an instruction
already given to the jury before their deliberation is improper unless omitted
words are added or if the original instruction was incorrect. Here the word
inquired of was within the jury's common competence to understand, and the
original instruction was not legally insufficient.41 2
**'1 Wyoming. Settle v. State, 619 P2d 387 4!-1 Oklahoma. Beeler v. State (OklCr), 334
(Wyo 1980). P2d 799 (1959).
^Wyoming. Settle v. State, 619 P2d 387 41JJ Indiana. Jenkins v. State, 424 NE2d
(Wyo 1980). 1002 tlnd 1981).
§ 153A. Request for instruction granted — Estoppel
A defendant in a criminal case may not assert prejudicial error based on an
instruction that he drafted, which was given to the jury on his request. Thus,
a defendant was not permitted to assert that the following charge to the jury,
139 REQUESTS § 155
which instructed them on the inference raised by the possession of stolen goods
but failed to instruct them on the prosecutor's burden of proof, was prejudicial:
"You are instructed that recent, unexplained, and exclusive possession of
stolen goods from a theft or burglary will support the inference that the person
in possession of the goods is guilty of the theft or burglary and that such an
inference can be sufficient in and of itself to sustain a conviction for burglary
or theft. But you may draw that inference, and convict the defendant of bur-
glary or theft based upon that inference, only if you decide that recent,
unexplained, and exclusive possession of the goods by the defendant has been
established by the evidence beyond a reasonable doubt.
" 'Unexplained' for the purpose of this instruction means that there is no
explanation derived from the evidence in the case or furnished by the defen-
dant which raises a reasonable doubt as to his guilt." 41 2
When a defendant requests an instruction from the trial court, and that
instruction thereafter is given, the defendant is estopped from predicating
error on the instruction as given.41 3
41-2 Colorado. People v. Szloboda, 620 P2d 36 4L3 Kansas. State v. Patchett, 621 P2d 1011
(ColoApp 1980). (Kan 1980).
§ 154. Formal requisites of requests.
An Oklahoma statute provides that an excepting party to a refused instruc-
tion is not required to file a bill of exceptions, "but it shall be sufficient to write
at the close of each instruction 'Refused and excepted to' ... which shall be
signed by the judge" (Okl. Stat. 1961, tit. 12, § 578).
But the Oklahoma Supreme Court has held that the requirement of a written
instruction and refusal is not mandatory as to fundamental issues raised by the
pleadings and evidence, since on these issues the trial judge must instruct on
his own initiative without request.54'1
A party who claims the benefit of a statute must file a written request to
charge on the statute.54-2
Requests for instructions should be in writing and presented before the
closing arguments.54'3
5411 Oklahoma. Oklahoma Transp. Co. v. Burial Vault Co., 149 Conn 381, 180 A2d 290
Green (Okl), 344 P2d 660 (1959). In this case, (1962).
the court considered the issue of sudden emer- 54'3 Massachusetts. Potter v. John Bean
gency a fundamental issue. Division of Food Machinery & Chem. Corp., 344
Mi Connecticut. Domenick , v. Wilbert Mass 420, 182 NE2d 834 (1962).
§ 155. Necessity of clear expression in requested instruction.
The written requests must be legal, apt, and precisely adjusted to some
principle involved in the case.55-1
55>1 Georgia. Slaughter v. Linder, 122
GaApp 144, 176 SE2d 450 (1970).
§ 156 INSTRUCTIONS-RULES GOVERNING 140
§ 156. Modification of requested instructions.
The Supreme Court of Georgia takes an extreme view of the correctness of
a requested instruction. The trial judge must grant only requests that are
perfect as submitted. And by "perfect," the court means letter perfect. In this
request the word "invitee" was spelled "inditee," clearly a typographical error.
The Georgia Supreme Court held that the trial court did not err in refusing to
give the instruction.88 1
The court need not charge in the exact language requested, so long as the
requested subject-matter is fully and correctly covered by the instruction
given.88 2
The trial judge is not bound to instruct the jury in the language of requested
instruction, but an instruction which in substance states requested ruling is
sufficient.88-3
Refusal to give requested instructions in language of requests is not error
where court charges the principles involved.88 4
The trial court need not rewrite, modify or change requested instructions,
and refusal of tendered instructions is not error unless they are proper pre-
cisely as tendered.88'5
The trial court is not required to use the language asked for by counsel in
request to charge if the jury is correctly informed.88 6
The trial court is not required to charge in the specific language of the
„ request, so long as the charge is sufficiently clear and comprehensive as to be
understood by the jury.88 7
It is not error to refuse to give an instruction containing unfilled blanks.88'8
It is not error if the court does not use the precise language of the request.88'9
A trial judge is not required to use the exact language or phraseology of a
point requested by counsel so long as the judge chooses a form and manner of
expression that adequately and without confusing the jury covers the contents
and substance of the requested point.88'10
8811 Georgia, Downs v. Powell, 215 Ga 62, m-5 Indiana. Fetter v. Powers, 118 IndApp
108 SE2d 715 (1959). 367, 78 NE2d 555 (1948).
8812 New Jersey, Rynar v. Lincoln Transit 88<8 Maryland. Feinglos v. Werner, 181 Md
Co., 129 NJL 525, 30 A2d 406 (1943); State v. 38, 28 A2d 577 (1942).
Ellrich, 10 NJ 146, 89 A2d 685 (1952); Plant v. ^ Rhode Island. Templeton v. Bateman,
River Road Service Co., 5 NJSuperCt 290, 68 90 RI 481, 159 A2d 609 (1960).
A2d 876 (1949); Kurkjian v. Wolpin, 5 *** California. Mapes v. Yowell, 54 Cal2d
NJSuperCt 429, 69 A2d 340 (1949). 231, 5 CalRptr 159, 352 P2d 527 (1960).
*** Massachusetts. Ball v. Forbes, 3 14 Mass ^Connecticut. Danzell v. Smith, 150
200, 49 NE2d 898 (1943); Russell v. Berger, 314 Conn 35, 184 A2d 53 (1962).
Mass 500, 50 NE2d 642 (1943). 88ao Pennsylvania. McGowan v. Devonshire
*** New Hampshire, Manseau v. Boston & Hall Apts., 420 A2d 514 (PaSuper 1980).
M, R. R,, 96 NH 7, 69 A2d 613 (1949).
§ 157. Refusal for errors in request
The following comment by the trial court judge was held not to be prejudicial
or improper:
"In this case as in any case the lawyers have a right to request certain
written requested charges. That has been done in this case. Of course, I think
about 20 were requested, but I am going to read two charges to you. I will tell
you that these are correct statements of the law and should be considered by
you consistent with what I have told you thus far." 89>1
141 REQUESTS § 157
A request to charge must be "perfect in form," "entirely correct and accu-
rate."101
"A written request to charge must be correct or even perfect." 10"2
Refusal of a requested instruction will be error only if the requested instruc-
tion "clearly and directly" called the attention of the trial court judge to its
error. Refusal of a requested instruction is not error when the requested
instruction itself is erroneous. Thus, in a malpractice action, the following
instruction given by the trial court judge was not so "clearly erroneous" as to
constitute error:
"It is claimed by the defendants and denied by the plaintiff that the plaintiff
did not file her complaint within two years from the date that her cause of
action arose. In this connection, I instruct you that the statutory law of the
State of Oregon provides that a cause of action for medical malpractice arises
when the injury is first discovered or in the exercise of reasonable care should
have been discovered, and a complaint for that injury must be filed within two
years from that date. An injury is discovered when a reasonably prudent
person associates her symptoms with a serious or permanent condition and at
the same time perceives that the defendants played some role in causing or
inducing that condition."
This was especially so in light of the fact that the requested instruction of
the plaintiff was itself erroneous:
"Each of the defendants claim as an affirmative defense that plaintiff did not
file her action against them within the time limited by law in the State of
Oregon. Under the law, an action to recover damages for injuries to the person
arising from any medical operation, shall be commenced within two years from
date when the injury is first discovered or in the exercise of reasonable care,
should have been discovered. Plaintiff claims that she did not and could not in
the exercise of reasonable care, have discovered the cause, nature and extent
of her injury more than two years before she filed her lawsuit.
"In determining whether this case was filed within the period of limitations,
there are certain undisputed facts which you shall consider. First, there is no
question but that plaintiffs surgery was performed on October 22, 1975, and
if any negligence occurred on the part of any of the defendants, it was on that
date. Secondly, there's no question but that plaintiffs action for damages was
filed on November 3, 1977.
"In determining whether or not, under the evidence, plaintiff was aware of
her injury more than two years before November 3, 1977. [sic] In connection
with this issue, you are instructed that under the meaning of this statute, the
word 'injury* refers to not only 'discovery of the injury' but also, 'discovery of
the negligence' which lead [sic] to the injury. In order for plaintiff to be barred
from maintaining this action, it is not only necessary that she knew she
suffered an injury to her body before November 3, 1975, but also, that she knew
of the true cause of her injury and the true nature of the negligence of one or
more of the defendants, which lead [sic] to this injury, sometime before
November 3, 1975. The other basis for barring plaintiffs right to maintain the
action is if under the evidence, plaintiff, in the exercise of reasonable care,
should have discovered the true cause of her injury and the true nature of the
negligence of one or more of the defendants. If you find that under the evidence
plaintiff did not know these things before November 3, 1975 and could not have
§ 158 INSTRUCTIONS—RULES GOVERNING 142
discovered them, in the exercise of reasonable care between October 22 and
November 3, 1975, then she is not barred from maintaining this action." 103
m-1 Alabama. Jones v. State, 392 S2d 1270 10'2 Georgia. Durand v. Reeves, 219 Ga 182,
(AlaCrimApp 1980). 132 SE2d 71 (1963).
10>1 Georgia. Atlantic Metallic Casket Co. v. 10'3 Oregon. Sculace v. Rogers, 619 P2d 1316
Hollingsworth, 107 GaApp 594, 131 SE2d 61 (OrApp 1980).
(1963); Wells v. Metropolitan Life Ins. Co., 107
GaApp 826, 131 SE2d 634 (1963).
§ 158. Refused instructions in civil cases substantially covered by
other instructions given.
The court in its charge defined the term and instructed the jury as to what
constitutes gross negligence, and instructed them that unless they found that
the defendant was grossly negligent it would be their duty to return a verdict
in favor of the defendant; that they would consider only such gross negligence
as they found to have been the proximate cause of the plaintiffs injury and
damages; and that, if they found gross negligence but found that it did not
contribute to the damages, their verdict should be for the defendant.11-1
The measure of the right of the property owner is reasonable ingress and
egress under all the circumstances. If you find, from a consideration of the
evidence that the proposed access at the locations indicated are reasonable
under all circumstances as shown by the evidence, then plaintiff is not entitled
to damages for loss of access. On the other hand, if you find from a
preponderance of the evidence that the means of ingress and egress have been
substantially interfered with; that is, is not reasonable under all the circum-
stances, then if you so find, the plaintiff is entitled to damages it may have
sustained for a loss of access. But you are instructed that this element of
damage is not an independent element of damage. Evidence relative thereto
has been offered and received for your consideration in determining the
amount of damages the owner may have sustained as "consequential damages"
as set forth and explained in these instructions.
A refusal of a later instruction requested by appellant held not error because
the matter was substantially covered by the above instruction. Refusal of
instructions substantially covered by charge given is not error, especially if the
charge is an accurate statement of the law.11 2
The trial court is under no obligation to defer to the specific requests of the
parties in determining the content of the charge to the jury where the sub-
stance of the requests has already been covered in other instructions.11-3
The trial court did not err in refusing to give appellants' tendered instruction
when its subject matter was substantially covered by other instructions which
were given.11-4
Ground 17 of the enumerations of error complains of the failure to give a
request to charge. The record reveals that the trial judge charged the jury in
substantially the same language as that requested and hence no harmful error
was committed.11 5
It is not prejudicial error to refuse an instruction where the theory of the
rejected instruction is covered by other instructions given by the trial court.11'6
A trial court judge is not required to accept and use jury instructions
verbatim as submitted to the court by counsel, and he is free to rephrase or
143 REQUESTS § 159
modify the instructions submitted to him, provided that the substance of the
requested instructions are adequately, accurately, and fairly presented to the
jury.16 1
Refusal to give a requested instruction is not erroneous if the instruction is
substantially given in another instruction.25 L
It is proper to refuse to give requested instructions already covered by given
instructions.25 2
An instruction requested by plaintiffs, over objection by defendant on the
subject of an implied warranty of a "good and workmanlike installation"
though not dealing with such implied warranty as warranty but as a subsidiary
issue to an action for breach of contract for satisfactory installation with its
own implied warranty was redundant.25 3
"-1 Georgia. French v. Stephens, 117 GaApp Inc., 2 WashApp 613, 468 P2d 1012 (1970).
61, 159 SE2d 484 (1967). 16>1 Pennsylvania. Commonwealth v. Parks,
n-2 Nebraska. Deremer v. State, 182 Neb 421 A2d 1135 (PaSuper 1980).
586, 156 NW2d 6 (1968). 25'1 Ohio. Hardy v. Crabbe, 114 OhApp 218,
u-3 Federal. Joseph T. Ryerson & Son, Inc. v. 181 NE2d 483 (1961)
H. A. Crane & Bro., Inc., 417 F2d 1263 (1969). 25'2 Hawaii. In re Mew Len Chmg's Estate,
1L4 Indiana. Rocoff v. Lancella, 145 IndApp 46 Haw 127, 376 P2d 125 (1962).
440, 251 NE2d 582 (1969). 25"3 Georgia. Parker Heating Co. v. Rock
n-5 Georgia. Srochi v. Kamensky, 121 Springs Manor, Inc., 116 GaApp 495, 157 SE2d
GaApp 518, 174 SE2d 263 (1970). 818 (1967).
n.e Washington. Myers v. Ravenna Motors,
§ 158A, Refusal of voir dire questions.
It is not reversible error for the court to refuse to ask prospective jurors
certain questions during their voir dire where it is shown that the court, when
giving instructions to the jury before deliberation, adequately and correctly
instructed the jury on the matter contained in the proposed voir dire question.
For example, it was not reversible error for the court to refuse the following two
questions:
(1) "If you were chosen as a juror, and at the conclusion of the case, after
discussion and deliberation with your fellow jurors you felt differently than
they about what the verdict should be, would you be able to hold your view if
you thought you were right or would you simply give in to the majority?"
(2) "If you and fellow jurors, after hearing all the testimony, the arguments
of counsel, and the Court instructions, and after full deliberation unanimously
reached a verdict, would you be able to stand up in the jury box in open court
and announce what the verdict was?" 25A
25A Pennsylvania. Commonwealth v.
Bright, 420 A2d 714 (PaSuper 1980).
§ 159. Refused instructions in criminal cases substantially covered by
other instructions given.
. . . [I]t is error for a trial judge to refuse to give instructions requested which
correctly state the law on issues presented unless the points are adequately
covered by the instructions given,26 1
§ 159 INSTRUCTIONS-RULES GOVERNING 144
The trial court need not charge the jury in the exact words requested by the
defendants but is free to use language of its own choice where the general
charge adequately covers the issues.26 2
The failure to give requested instructions in the exact language requested,
where the charge given substantially covers the same principle, is no longer a
ground for new trial.263
... [A] court may refuse to give requested instructions if the propositions
therein stated are adequately covered by other instructions actually given by
the court.26 4
Where a charge, on a single issue, ran for over two pages in the transcript,
it was not error for the trial court judge to refuse to give a requested instruction
because the jury was otherwise, in the remainder of the instructions, properly
instructed in accordance with the applicable state law.26 5
The following comment by the trial court judge was held not to be prejudicial
or improper:
"In this case as in any case the lawyers have a right to request certain
written requested charges. That has been done in this case. Of course, I think
about 20 were requested, but I am going to read two charges to you. I will tell
you that these are correct statements of the law and should be considered by
you consistent with what I have told you thus far." 26 6
The defendant is not entitled to a separate jury instruction on the alibi
defense so long as adequate and proper instructions were given on (1) the
elements of the crime charged and on (2) the burden of the prosecution to prove
the guilt of the defendant beyond a reasonable doubt.26 7
Following a determination by the trial court judge that the com-
plainant-victim, a child five years of age, was capable of and understood her
duty to tell the truth, the trial court properly refused the defendant's requested
instruction to the effect that the jury should scrutinize and analyze the victim's
testimony with great care if it found her testimony to be uncorroborated
because the essence of this request was covered by other instructions given to
the jury by the trial court judge.26'8
A trial court judge is not required to accept and use jury instructions
verbatim as submitted to the court by counsel, and he is free to rephrase or
modify the instructions submitted to him, provided that the substance of the
requested instructions are adequately, accurately, and fairly presented to the
jury.29-1
As a general proposition, the trial court has discretion in charging the jury,
and the instructions will be held proper and non-prejudicial so long as that,
considering them in their entirety, they accurately, properly, and fairly state
the law as applied to the facts in the case. This discretion extends to refusal of
requests and to cautionary instructions as well. For example, when testimony
was offered against the defendant by an accomplice that had turned State's
evidence, it was held proper and not prejudicial error for the court to refuse to
give the following standardized jury instruction on accomplices:
"A accomplice witness is one who testifies that he was involved in the com-
mission of the crime with which the defendant is charged. You should consider
with caution testimony of an accomplice if it is not supported by other evi-
dence," [Emphasis supplied! and instead to give the following instruction
relating to the credibility of witnesses in general and not specifically men-
tioning the need to corroborate accomplice testimony:
145 PRESERVATION OF ERROR FOR REVIEW § 161
"It is for you to determine the weight and credit to be given the testimony
of each witness. You have a right to use that knowledge and experience which
you possess in common with men in general, in regard to the matter about
which a witness has testified. You may take into account his ability and
opportunity to observe and know the things about which he or she has testified,
his memory, manner, and conduct while testifying, any interest he may have
in the result of this trial, and the reasonableness of his testimony considered
in the light of all the evidence in this case.
"If you find that any witness has willfully testified falsely concerning any
material matter, you have a right to distrust the testimony of that witness in
other matters, and you may reject all or part of the testimony of that witness,
or you may give it such weight as you think it deserves. You should not reject
any testimony without cause." 35 1
The trial judge is not required to grant requested instructions if he has
adequately covered in his charge the points requested.39 1
When subject matter of a requested instruction has been adequately covered
in other instructions it is not error to refuse a proffered instruction.39 2
2(U Hawaii. Gibo v. City and County of 26'7 Kansas. State v. Dailey, 228 Kan 566,
Honolulu, 51 Haw 299, 459 P2d 198 (1969). 618 P2d 833 (1980).
26-2 Federal. Posey v. United States, 416 F2d 26'8 Maine. State v. Bussey, 423 A2d 244 (Me
545 (1969). 1980).
26-3 Georgia. Young v. State, 226 Ga. 553, 2SU Pennsylvania. Commonwealth v. Parks,
176 SE2d 52 (1970). 421 A2d 1135 (PaSuper 1980).
26"4 Indiana. Southern Ind. Gas & Elec. Co. v. 35A Kansas. State v. Ferguson, 288 Kan 522,
Riley, — Ind — , 37 IndDec 738, 299 NE2d 173 618 P2d 1186 (1980).
(1973). 39>1 Pennsylvania. Commonwealth v.
"" Maine. State v. Troiano, 421 A2d 41 (Me Nelson, 396 Pa 359, 152 A2d 913 (1959).
1980). 39'2 Alaska. Merrill v. Faltin (Alaska), 430
2616 Alabama. Jones v. State, 392 S2d 1270 P2d 913 (1967).
(AlaCrimApp 1980).
§ 161. Requests for special verdict or findings on interrogatories by
jury.
Defendant's request for a special verdict at the conclusion of plaintiff s argu-
ment was held to be timely under Ohio Revised Code (§ 2315.15) which is
silent as to the time when the request must be made.53"1
M>1 Ohio. Decker v. Standard Oil Co., 109
OhApp 339, 165 NE2d 693 (1959).
CHAPTER 8
PRESERVATION OF ERROR FOR REVIEW
Section Section
170. In general. 174. General objections and exceptions to
171. Timeliness of objections and exceptions. entire charge,
172. Clearness of statement of grounds of 175. Waiver of objections and exceptions.
objection or exception.
173. Particularity in statement of grounds of
objection or exception.
§ 170 INSTRUCTIONS-RULES GOVERNING 146
§ 170. In general.
The doctrine of fundamental error is to be resorted to in criminal cases only
for the protection of those whose innocence appears indisputable, or open to
such question that it would shock the conscience to permit the conviction to
stand.1-1
However that may be, the claimed error is not for our consideration since the
record discloses that this part of the charge stood without challenge unexcepted
to by the defendant. The charge as made thus became the law of the case and
may not now be challenged,2 1
A party may not complain of omissions in the charge unless he has called to
the attention of the Court these omissions of which he complains prior to the
jury's retirement for purposes of deliberations; by his inaction, the party is
deemed to have waived any objection and if such a grievance is raised for the
first time on appeal, it comes too late. An exception to this rule is made only
where the error complained of is so highly prejudicial and so taints the pro-
ceeding as virtually to deprive the aggrieved party of a fair trial.2*2
Defendant alleges on appeal that the trial judge did not give proper instruc-
tions to the jury. However, no objections to the instructions were made at trial.
In the absence of a miscarriage of justice, this Court will not consider this
alleged error when raised for the first time on appeal.6 1
Where the trial court gives an instruction which is incomplete, but correct
as far as it goes, such error in the charge is an error of omission and it is
complaining counsel's duty to request the trial court to charge further in order
to eliminate any possible confusion of the jury which may result from such
deficiency. Unless counsel has requested the court to supply the omission, the
error is not reviewable on appeal. However, where the trial court gives an
erroneous statement of law in a charge, not induced by the complaining party,
such an error is an error of commission and it may be reviewed on appeal
without that party's having objected to the charge.6'2
Under the circumstances, appellant's request for the instruction amounts to
an inducement by appellant to the court to make the charge complained of,
foreclosing appellate review of the assigned error.18'1
Where a request to charge is made to the court and the request is refused,
in all matters on appeal relating to refusal to give such request the request
shall be considered as a whole and not by its separate parts.28 1
The written requests must be legal, apt, and precisely adjusted to some
principle involved in the case.28 2
A party cannot claim as erroneous an instruction he himself requested.32'1
A party requesting an instruction cannot on appeal complain that the
instruction should not have been given.32 2
A party cannot complain about a given instruction he requested.32 3
Failure to object to an erroneous instruction is not fatal if there is "plain
error" [N.J.R.R. 1:5-3 (c)]. But the rule of plain error is rarely applied and only
if it is clear that the error has produced a failure of substantial justice.32'4
Tendering a correct instruction is not enough to preserve error to an
erroneous instruction. If the court fails to instruct when it should, tendering
a correct instruction would be sufficient.32-5
147 PRESERVATION OF ERROR FOR REVIEW § 170
A party cannot object to an instruction given at his request.32'6
A trial court's charge, despite fundamental error, becomes the law of the
case, unless the error is revealed by objection, exception, or a motion for a new
trial.32'7
It is error to instruct as follows even though no request made for a charge
on lesser included offenses be included as the charge given is clearly improper:
There are only two possible verdicts as to each defendant. You may find the
defendant, naming them individually, guilty of armed robbery or not guilty.
There are no included offenses.32 7 1
Normally, a party cannot complain about an instruction given at his request.
But this rule will not apply if it deprives an accused of his constitutional right
to due process.32 8
A requested instruction is sufficient to inform the trial judge of the omission
and preserve the error for appeal.32 9
A request to charge, which is refused, must be in writing to preserve the
error for review (Georgia Code, § 70-207).32-10
Instructions will not be reviewed on appeal if proper objection is not made
at the trial level, unless the appellate court thinks that a miscarriage of justice
00 -1-1
may occur.
Notwithstanding fact that appellant did not object an instruction making
malice an element of an assault and battery charge was held to be sufficiently
prejudicial to call for reversal.32 12
An appellate court will not consider an alleged error of failing to instruct if
at the trial no request is made and no objection made to court's failure to
charge.32'13
The party who requested a given instruction cannot object since any error
would be invited by that party.32 14
Failure of the trial judge to instruct the jury upon the decisive issues is
fundamental error; this error will be reviewed even if no exception was
taken.32-15
An instruction given without objection and exception becomes the law of the
case and is binding on the parties and a court of review,32 16
Technical objections to the trial court's instructions raised for the first time
on appeal will not be considered on appeal.32-17
The general rule has always been that if no exception to the charge is taken
at time of trial, the issue cannot be raised on appeal unless the error is basic
and fundamental.32-18
We have often ruled that matters not objected to at trial will not be con-
sidered by this court on appeal. The trial court must be given an opportunity
to correct asserted errors before we will listen to the plea that injustice has
been done.32"19
There is presently no requirement in this state that the court instruct in the
exact language of a request, even though the request may be correct as an
abstract principle of law which is directly applicable to a material issue.32-20
1-1 New Mexico. State v. Rodriquez, 81 NM *-2 Maine. State v. Small (Me), 267 A2d 912
503, 469 P2d 148 (1970). (1970).
2*1 Vermont. Forcier v. Grand Union Stores, 6>1 Michigan. People v. King, 22 MichApp
Inc., 128 Vt 389, 264 A2d 796 (1970). 590, 177 NW2d 689 (1970).
§ 171
INSTRUCTIONS— RULES GOVERNING
148
H2Ohio. Carrothers v. Hunter, 23 OhSt2d
99. 262NE2d867 (1970).
18 ! Ohio. Hasapes v Drake, 24 OhSt2d 1,
262NE2d870 (1970)
28 l Georgia. Bowers v. Fulton County. 122
GaApp 45, 176 SE2d 219 (1970)
28 2 Georgia. Slaughter v Lmder, 122 GaApp
144, 176 SE2d 450 (1970).
321 New Mexico. State v Justus, 65 NM
195, 334 P2d 1104 (1959).
32-2 Ohio. Slade v. Rookwood Oil Terminals,
Inc., 109 OhApp 99, 159 NE2d 776 (1959)
323 Alabama. Berness v. State, 40 AlaApp
198, 113 S2d 178(1958).
32.4 j^ew jersey. Cross v Robert E. Lamb,
Inc., 60 NJSuper 53, 158 A2d 359 ( 1959). In this
case, the erroneous instruction placed upon the
defendant the burden of proving that a third
party's negligence proximately caused the acci-
dent. But the court refused to apply the plain
error rule because other instructions correctly
placed the burden upon the plaintiff to prove
defendant's negligence caused the accident and
because the evidence showed defendant was at
least concurrently negligent
32-5New Mexico. Beal v. Southern Union
Gas Co., 66 NM 424, 349 P2d 337 (1960) The
court interpreted New Mexico Rule of Civil
Procedure 5 Kg)
32*6 Connecticut. Perkins v. Corkey, 147
Conn 248, 159 A2d 166 (1960).
32 7 Minnesota. State v Bradac, 257 Minn
467, 102 NW2d 34 (1960)
32 7 l Michigan. People v. Lemmons, 384
-Mich 1, 178 NW2d 496 (1970)
32-8 Illinois. People v Bender, 20 I112d 45,
169 NE2d 328 (1960)
32.9 Texas. Malone v. State (TexCr), 339
SW2d 666 (1960).
32-10 Georgia. Foster v. Ramsey, 102 GaApp
523, 116 SE2d617 (1960)
32-n Alaska. Reiten v. Hendncks (Alaska),
370 P2d 166 (1962)
3212 Alaska. Merrill v Faltin (Alaska), 430
P2d913 (1967).
32.13 Maryland. Wilhelm v State Traffic
Safety Comm., 230 Md 91, 185 A2d 715 (1962).
32-14 Iowa. Tilghrnan v Chicago & N. W. Ry.
Co , 253 la 1339, 115 NW2d 165 (1962).
32.15 Oklahoma. Britton v. Groom (Okl), 373
P2d 1012 (1962)
32.16 Virginia. Shamblee v. Virginia Transit
Co., 204 Va 591, 132 SE2d 712 (1963)
32-17 Kansas. State v Potts, 205 Kan 47, 468
P2d78(1970).
32-18 Pennsylvania. Geesey v Albee
Pennsylvania Homes, Inc., 211 PaSuper 215,
235 A2d 176 (1967).
32.19 Arizona. state v. Mays, 105 Ariz 47, 459
P2d307 (1969).
32-20 Georgia, Seagraves v ABCO Mfg. Co.,
121 GaApp 224, 173 SE2d 416 (1970).
§ 171, Timeliness of objections and exceptions.
If you find from a fair preponderance of all the evidence in this case that
under all the circumstances as shown by the evidence, the defendant, in
operating his automobile at the time of, and prior to, the collision in question,
used the same degree of care that an ordinarily prudent person would have
used under the same or similar circumstances, but that he did nevertheless
collide with plaintiff's vehicle, then your verdict may be in favor of the defen-
dant, and against the plaintiff.
In such an instruction the court held that Indiana Supreme Court Rule 1-7
requires that there is no error in giving same unless they are objected to at the
time the instructions are given.33 1
No party may complain of the giving or failure to give an instruction to the
jury, unless he objects thereto before the jury returns its verdict, stating
distinctly the matter to which he objects and the grounds of his objection.
Appellate Practice Act of 1965 (Ga. L. 1965, p. 18), as amended (Ga. Law 1966,
p. 493).33-2
The general rule has always been that if no exception to the charge is taken
at time of trial, the issue cannot be raised on appeal unless the error is basic
and fundamental.33-3
Complaints as to the court's charges in enumeration of error numbers, 6, 7
and 8 will not be considered as the condemnee made no objection to such
charges in the lower court as required by law.33 4
No party may assign as error the giving or the failure to give an instruction
unless he objects thereto before the jury retires to consider the verdict, stating
149 PRESERVATION OF ERROR FOR REVIEW § 172
specifically the matter to which he objects and the grounds of his objection.
Opportunity shall be given to make the objection out of the hearing of the
jury.341
No party may assign as error the giving of or the refusal to give an instruc-
tion unless, before the arguments to the jury are begun, he objects thereto by
stating distinctly the matter to which he objects and the grounds of his objec-
tion.361
Normally, alleged erroneous instructions cannot be raised for the first time
on appeal. This requirement is sound and practical since it gives the trial judge
an opportunity to make corrections before the jury retires. One agreed excep-
tion is that only when there is plain error affecting substantial rights will there
be appellate review of instructions not timely objected to in the trial court.45'1
When a defendant requests a manslaughter instruction and there is reason-
able ground for such an instruction to be found in the evidence, it would be
reversible error not to give it.45 2
The plaintiff's counsel excepted to a refusal on the part of the trial judge to
give a requested instruction. The refusal to instruct was sustained, for the
request for the instruction was made after the jury had left the court room and
was thus not timely. Further, the request was made orally, and not in writing,
as required.45-3
The defendant on appeal avers that, while there was no requested instruc-
tion, indeed no request submitted at all, with regard to an instruction on
manslaughter, the judge was nonetheless duty bound to submit such instruc-
tion. Defendant contends that this duty is binding in the absence of an affirma-
tive waiver on the defendant's part. It was held on appeal that there is no duty
on the part of the judge to submit instructions on a lesser degree of homicide
absent a request, but that had there been a request and reasonable grounds for
same, failure to give the instruction would have been reversible error.45 4
Only such exceptions to the charge as appear in the record on appeal can be
made the basis for appellate relief.45 5
33-1 Indiana. Preuss v. McWilliams, 141 Co., 153 WVa 506, 170 SE2d 321 (1969).
IndApp 602, 230 NE2d 789 (1967). 45 1 District of Columbia. Love v. United
33-2 Georgia. Biddinger v. Fletcher, 116 States (DCApp), 138 A2d 666 (1958).
GaApp 532, 157 SE2d 764 ( 1967 5. 45'2 Wisconsin. Green v. State, 38 Wis2d 361,
^Pennsylvania. Geesey v. Albee 156 NW2d 477 (1968).
Pennsylvania Homes, Inc., 211 PaSuper 215, 45-3 Wisconsin. Hunter v. Kuether, 38 Wis2d
235 A2d 176 (1967). 140, 156 NW2d 353 (1968).
33-4 Georgia. Bowers v. Fulton County, 122 45 4 Wisconsin. Green v State, 38 Wis2d 361,
GaApp 45, 176 SE2d 219 (1970), 156 NW2d 477 (19681.
34-1 Michigan. People v. Stanek, 61 MichApp 45J5 North Carolina. State v. Newsome, 7
573, 233 NW2d 89 (1975). NCApp 525, 172 SE2d 909 (1970).
3611 West Virginia. Ellison v. Wood & Bush
§ 172. Clearness of statement of grounds of objection or exception.
Under the Georgia Appellate Practice Act of 1965 a party objecting to
instructions must raise his objections before verdict. The objecting party must
distinctly state the grounds of his objections.46 1
[I]t is necessary that an appellant make proper objection to a charge as given
or to a request refused and state the grounds therefor before the jury returns
its verdict. The mere exception to a failure to give a numbered request to
charge fails to meet this requirement,46 2
§ 173 INSTRUCTIONS—RULES GOVERNING 150
Saying "I do not believe that is the law," although giving reasons, is not a
proper exception to an instruction.52-1
It is next contended that a new trial should be granted because of alleged
error in the refusal to give three of the requested instructions to the jury. One
of these requests concerned the duties of the driver of a rear vehicle when faced
with a sudden stop by the lead vehicle; and another the right of a motorist to
continue on his course while momentarily blinded by the lights of an oncoming
vehicle, or finds himself confronted with a sudden condition which could not
have been foreseen. The third was a request to charge Section 46-484 of the
1962 Code of Laws, which requires that motorist when stopping or parking his
car upon a roadway with an adjacent curb must have his right-hand wheels
parallel to and within eighteen inches of the right-hand curb. It has held that
these instructions as given afforded the proper test for the jury.52'2
4<L1 Georgia. DuFour v. Martin, 117 GaApp 52a Alabama. United Ins. Co. v. Ray, 275 Ala
160, 159 SE2d 450 (1968). 411, 155 S2d 514 (1963).
*** Georgia. Reeves v. Morgan, 121 GaApp 52'2 South Carolina. Brave v. Blakely, 250
481, 174 SE2d 460 (1970). SC 253, 157 SE2d 726 (1967).
§ 173. Particularity in statement of grounds of objection or exception.
An exception must point out some specific part of the charge as erroneous,
and that an exception to a portion of a charge embracing a number of proposi-
tions is insufficient if any of the propositions are correct.53-1
When a defendant requests a manslaughter instruction and there is reason-
able ground for such an instruction to be found in the evidence, it would be
reversible error not to give it.53 2
The objecting party must state distinctly the matter to which he objects and
the grounds of the objection.76"1
Failure to except to a claimed erroneous charge precludes review on
appeal76-2
An appellate court will not consider a claimed error in the charge if the
charge was not excepted to.76'3
Since no grounds were specified in the objections or exceptions to alleged
erroneous instructions, nothing is presented for review.76-4
It is not necessary to give reasons for an exception if the judge indicates that
he understands why the exception is taken.76 5
Telling jury that the court and taxpayers expect a verdict is not an instruc-
tion on the law of the case. Hence the rule that exceptions to instructions be
specific does not apply. It is sufficient merely to say, "I reserve an exception to
your honor's statements." 76"6
A mere objection without a request for further or amended instructions does
not properly preserve the issue for review.76 8
To reserve an exception to part of the court's oral charge, the exceptor must
recite what the court said or the substance.76'9
An assignment of error that the instructions were misleading, illegal,
erroneous, and prejudicial is too general to preserve the matter for appellate
review.76-10
Merely to inform the court that the doctrine of contributory negligence is not
in the case and that the court erred on the doctrine of comparative negligence
151 PRESERVATION OF ERROR FOR REVIEW § 174
is, we think, insufficient in particularity to inform the court that he had
omitted the rule on diminution of damages/6 n
The only grounds of objection to the refusal made by plaintiff was that each
of the requested instructions was "pertinent" and "applicable." Refusals to
charge are only reviewable when the complaining party makes objection prior
to the jury's return of the verdict "stating distinctly the matter to which he
objects and the grounds of his objection." 76 12
No party may assign as error the giving or the failure to give an instruction
unless he objects thereto before the jury retires to consider the verdict, stating
specifically the matter to which he objects and the grounds of his objection.
Opportunity shall be given to make the objection out of the hearing of the
jury.76-13
58-1 North Carolina. Jenkins v. Games, 272 111 S2d 627 (1958), afPd, 111 S2d 639.
NC 81, 157 SE2d 669 (1967). 76'7 Reserved
^ Wisconsin. Green v. State, 38 Wis2d 361, 76"8 Hawaii. Kealoha v. Tanka, 45 Haw 457,
156 NW2d 477 (1968). 370 P2d 468 (1962).
76-1 New Jersey. Citro v. Stevens Institute of 76 9 Alabama. Alabama Power Co. v. Smith,
Technology, 55 NJSuper 295, 150 A2d 678 273 Ala 509, 142 S2d 228 (1962).
(1959). 7ai° Missouri. State v. Davis (Mo), 367
76-2 Rhode Island. Hirschmann v, Sun-Dial SW2d 517 (1963).
Optical Co., 89 RI 31, 150 A2d 293 (1959). 76>u Georgia. Seagraves v. ABCO Mfg. Co.,
76<3 Connecticut. Newton v. Barnett, 146 121 GaApp 224, 173 SE2d 416 (1970).
Conn 344, 150 A2d 821 (1959). 76'12 Georgia. McChargue v. Black Grading
76-4 South Dakota. Lang v. Burns, 77 SD Contractors, Inc., 122 GaApp 1, 176 SE2d 212
626, 97 NW2d 863 (1959). (1970).
76-5 Washington. McGovern v. Greyhound 76-13 Michigan. People v. Stanek, 61
Corp., 53 Wash2d 773, 337 P2d 290 (1959). MichApp 573, 233 NW2d 89 (1975).
76-6 Alabama. Orr v. State, 40 AlaApp 45,
§ 174. General objections and exceptions to entire charge.
An exception must point out some specific part of the charge as erroneous,
and that an exception to a portion of a charge embracing a number of proposi-
tions is insufficient if any of the propositions are correct,77 1
While the plaintiff made a distinct objection to the refusal to charge his
requests, the ground asserted was a mere general objection which failed to
point out with any degree of particularity why the requests were pertinent and
is insufficient to entitle the objection to review,77"2
A general exception to an entire charge will not be considered. It fails to
present to the trial judge an opportunity to fairly pass upon the exception. An
example of such an exception is: "To the charge as a whole on the ground that
it amounts to directing a verdict for the state because every portion of the
charge and its entirety states only the legal grounds favorable to the state." 8Z-1
A general exception is effective if the charge fails to give to the jury the
proper conception of the fundamental law involved.82 2
77-1 North Carolina. Jenkins v. Gaines, 272 82a Vermont, State v. Haskins, 120 Vt 288,
NC 81, 157 SE2d 669 (1967). 139 A2d 827 (1957).
77-2 Georgia. McChargue v. Black Grading 82*2 Pennsylvania. Eisert v. Jones, 399 Pa
Contractors, Inc., 122 GaApp 1, 176 SE2d 212 204, 159 A2d 723 (I960).
(1970).
§ 175 INSTRUCTIONS—RULES GOVERNING 152
§ 175. Waiver of objections and exceptions,
Evidence the city was sanding intersections the morning of plaintiff s fall is
no proof the sidewalk in question was in a dangerous condition because of ice
and snow made rough and uneven through artificial means. Nor does it prove
actual knowledge on the part of the city. In fact, the court instructed the jury
defendant had no actual knowledge of the alleged condition and plaintiff neces-
sarily relied on constructive notice. No objection was taken and this instruction
is now the law of the case.83 1
A defendant waives any claim of error in the instructions other than those
stated.96-1
An instruction not excepted to becomes the law of the case.96 2
General objections to instructions given or refused are not enough to pre-
serve error for review. Moreover, error is waived as to any instruction not
assigned as error in the motion for a new trial.96'3
Although a reviewing court does not approve the language used in an
instruction, if no exception was taken, the instruction became the law of the
case.964
Failure to object to a given instruction on a particular subject is not a waiver
of error for refusing to give a tendered instruction correctly stating the law.96-5
Rulings on the giving or refusing of requested written instructions may be
reviewed on appeal without a motion for a new trial (Ala. Code 1940, tit. 7,
§ 818).96"6
If a party assigns error to a group of unrelated charges, but one charge at
least was proper, the court will not consider the rest of the charges.96 7
The general rule has always been that if no exception to the charge is taken
at time of trial, the issue cannot be raised on appeal unless the error is basic
and fundamental.96-8
Plaintiff requested an instruction stating that, if the injury was caused by
other than the workman's employer, the workman has an option to either
accept workman's compensation or pursue a remedy against the injurer. The
instruction was not given, and plaintiff objected to evidence submitted to show
workmen's compensation coverage. The appellate court held that the requested
instruction, seeking admission of the very evidence to which plaintiff was
objecting, was a waiver of the right to successfully object,97
^lowa, Hovdenv. City ofDecorah, 261 la ^ Alabama. Mobile City Lines, Inc. v.
624, 155 NW2d 534 (1968). Proctor, 272 Ala 217, 130 S2d 388 (1961).
•"New Mexico. State v. Justus, 65 NM 96-7 Alabama. Callahan v. Booth, 275 Ala
195, 334 P2d 1104 (1959). 275, 154 S2d 32 (1963).
90 Rhode Island. Shine v.Wujick, 89 RI 22, ^Pennsylvania. Geesey v. Albee
150 A2d 1 (1959). Pennsylvania Homes, Inc., 211 PaSuper 215,
90 Washington. McGovern v. Greyhound 235 A2d 176 (1967).
Corp., 53 Wash2d 773, 337 P2d 290 (1959). 97 Arizona. Miller v. Schafer, 102 Ariz 457,
mA Illinois. People v. Neukom, 16 I112d 340, 432 P2d 585 (1967).
158 NE2d 53 (1959).
m'5 Indiana. Lee v. Dickerson, 131 IndApp
422, 171 NE2d 698 (1961).
153 PRACTICAL SUGGESTIONS § 180
CHAPTER 9
PRACTICAL SUGGESTIONS
Section
180. Instructing the jury.
§ 180. Instructing the jury.
Ladies and gentlemen of the jury, I have asked that you be brought back,
because I don't think you had more than turned the door handle when both
attorneys and myself realized there were a couple of things I failed to give to
you. One was a ruling that I made during the course of argument, and I think
I should give you instructions on it. I instruct you, that if you find for the
plaintiff, you may not award any damages under the Death Act. There can be
no recovery to the plaintiff beyond the time that the deceased would have
reached the age of 21 years. So that damages, if you find for the plaintiff, would
be limited only to that amount. It would also be, of course, pecuniary damages
which the parents, Mr. and Mrs. W., have suffered by reason of this loss.1 1
The trial judge, upon being informed that the jury was deadlocked, called in
the jury foreman and inquired of him whether or not the jury desired further
instruction. The foreman retired to the jury room to make inquiry of his fellow
jurors, and he returned to the courtroom and reported, "all feel that they could
come to a verdict if they had some more" instruction. The entire jury then came
to the courtroom and asked for re-charge, specifically, on the word
"knowingly." The judge gave the re-charge, and a juror expressed lingering
doubt about the meaning of the word. After he informed that juror that Mosley
could not be convicted unless he knowingly obstructed justice, the judge asked
if there were further instruction he could offer and the juror responded
negatively. The judge also instructed the jury, at the time of the re-charge, that
his business was not to interfere in their deliberations, but only to offer instruc-
tional assistance, and that it was their province alone to determine guilt or
innocence. Mosley's counsel was present for all of this judicial communication
with the jury. Contrary to Mosley's allegations, the trial judge's handling of the
re-charge was not coercive of any individual juror, nor was it an interference
with jury deliberations. Also, "[w]here the jury, after having been charged by
the court, returns into court and requests an instruction upon a specific ques-
tion, it is not error for the judge to confine his instruction to the specific point
suggested by the jury's inquiry." L2
. , ,[T]o avoid future misunderstanding, it is suggested that a court should
state the question, affirmatively, negatively, and illustratively, e.g.: "Tell me
how you stand numerically — that is, whether you are 6 and 6, 8 to 4, etc., BUT
DO NOT TELL ME WHETHER THAT NUMBER IS FOR GUILT OR INNO-
CENCE. Do you understand my question?" 1 3
We take this opportunity to reiterate the principle that the better procedure
in a case in which it is a close question whether the standard for granting a
directed verdict is met is to allow the matter to go to the jury. If the judge then
decides that the jury's verdict cannot stand, a motion for judgment
notwithstanding the verdict may be allowed This procedure is more effi-
cient than initially allowing a motion for a directed verdict. If the granting of
the motion for judgment notwithstanding the verdict is found to be erroneous
§ 180 INSTRUCTIONS— RULES GOVERNING 154
on appeal, the jury's verdict can be reinstated, while the erroneous granting of
the motion for a directed verdict requires a new trial4
ltl Michigan. Wilson v. Modern Mobile l'3 Georgia. Wilson v. State, 145 GaApp 315,
Homes, Inc., 376 Mich 342, 137 NW2d 144 244 SE2d 355 (1978).
(1965). 4 Massachusetts. Smith v. Aliens Co., 78
u Georgia. Mosley v. State, 145 GaApp 651, Mass 1857, 377 NE2d 954 (1978).
244 SE2d 610 (1978).
READY-REFERENCE INDEX
References are to Sections
ABSTRACT INSTRUCTIONS,
in civil cases, 121.
ACCOMPLICE,
competency to testify, 69.
testifying as interested witness,
instruction, 28, 40, 41, 69, 151.
ADMISSIONS,
cautionary instructions concerning,
in criminal cases, 34.
weight of, 34.
weight of admissions of parties, 34.
ADVERSE POSSESSION,
elements, 123.
ALIBI,
burden of proof, 62.
reasonable doubt, 72.
ARGUMENTATIVE INSTRUCTIONS,
in civil cases, 108.
ARGUMENTS OF COUNSEL,
subject matter of instruction concerning, 74.
ASSUMPTION OF FACTS,
established, unco ntro verted or admitted facts, 25.
ATTORNEYS,
See ARGUMENTS OF COUNSEL.
AVIATION,
crew member of airplane, definition, 54.
B
BLOOD TESTS,
refusal, instruction on, 28.
BURDEN OF PROOF,
See also CONSTRUCTION AND EFFECT.
alibi,
civil cases, 61.
criminal cases, 72.
by clear and convincing evidence,
plaintifPs burden of proving subjective knowledge, 62B.
defendants, in counterclaims, 61.
in civil cases, 61.
in criminal cases: presumption of innocence, 59, 62.
presumptions, degree of proof, preponderance of evidence in general, 62.
self-defense in criminal cases, 62.
CAUTIONARY INSTRUCTIONS,
character of witness, 42.
confession, voluntariness, truth, 67.
erroneous when comment on the evidence, 42.
failure to give, on admissions by defendant, 42.
felony conviction affecting defendant's credibility, 42.
155
READY-REFERENCE INDEX 156
CAUTIONARY INSTRUCTIONS— Continued.
individual juror, 43,
juror causing mistrial, 42.
liability insurance, 42.
physical restraints on defendant, 42.
physical restraints on defendant as no inference of guilt, 42.
police officer not testifying as expert, no instruction required, 35A.
presence of alternate juror during deliberations, 42.
publicity and impartiality of jurors, 42.
requested for prejudicial circumstances, 151.
silence of party, 70, 71.
statements and papers of counsel, 42, 74.
CHARACTER,
charge as to, in criminal trials, 32.
CIRCUMSTANTIAL EVIDENCE,
charge when some evidence direct, 64.
distinction between director and opinion evidence, 64.
in criminal cases, 64.
necessity of request for instruction on, 151.
relation to direct evidence, 36.
rules that govern^ 64.
CIVIL CASES/
See also PERTINENCY TO ISSUES AND EVIDENCE.
abstract instructions, 121
abstract instructions in, 121.
argumentative instructions, 108.
argumentative instructions in, 108.
burden of proof, 61.
comments and expressions of opinion in contract and tort cases, 31.
jury judge of weight of contradictory evidence, 27.
weight of contradictory evidence for jury, 27.
COMMENTS AND EXPRESSIONS OF OPINION,
contract cases, 31.
tort cases, 31.
CONSTITUTIONAL RIGHTS,
right of defendant not to take the stand and testify, 45, 62, 71.
CONSTRUCTION AND EFFECT,
construction of charge as an entirety in civil cases, 136.
construction of charge as an entirety in criminal cases, 137.
entirety in civil cases, 136.
erroneous instruction and correct one, reversible error, 138.
erroneous instruction not cured by correct one, criminal cases, 139.
interpretation — in general, 135.
CONTENTS,
interest of witness, 40.
limitation of purpose of particular evidence, 56.
CONTRACTS,
substantial performance, definition, 54.
CONTRIBUTORY NEGLIGENCE,
presumption of due care, 61 A.
COUNTERCLAIMS,
defendant's burden of proof, 61.
CREDIBILITY OF WITNESSES,
bases for credit given testimony, 28, 37, 39, 40.
corroborating or contradictory evidence, 38.
criminal cases, 41.
157 READY-REFERENCE INDEX
CREDIBILITY OF WITNESSES— Continued.
improper comment on by counsel cannot be cured by instruction, 3 7 A.
jury to determine, 37.
CRIMINAL CASES,
See also CONSTRUCTION AND EFFECT.
alibi as defense, 72.
burden of proof, 59, 62.
credibility of defendant with felony conviction, 42.
credibility of witnesses, 41.
inferences from flight, 66.
informers, argument of counsel, 74.
questions of fact and weight of evidence, 28.
requests, accomplice testimony, 151.
testimony of accomplice, credibility, 41.
weight and credibility of testimony of accomplice, 41.
CRIMINAL LAW,
accomplice testimony, 151.
admission of accused, necessity of cautionary instruction, 34, 42, 151.
conspiracy, definition, 55.
dangerous weapon, definition, 54.
evidence of other crimes, 151.
felony murder, definition, 55.
grade or degree of offense, instructions on, 57.
inferences from the evidence and from flight, 66.
insanity as defense, necessity of instruction on, 58.
instructions construed as entirety, 137.
instructions on lower grade of offense, 57.
intent, improper instruction, 32.
requests, diminished capacity, 151.
self-defense, 62.
self-defense, good faith, subjective test, 62A.
CRIMINAL LAW AND PROCEDURE IN GENERAL,
defendant,
instructions given by, prejudicial error, 153 A.
inferences from the evidence and from flight, 66.
objections to instructions, timing, when required, 151.
r>
DAMAGES,
complaint not evidence* 117,
DEFINITIONS,
accidental death, 54.
conspiracy, 55.
crew member of airplane, 54.
crime committed, 55,
dangerous weapon, 54.
felony-murder doctrine, 55.
fraud, 54.
lawful violence, 54.
negligence, 54.
ratified, 54.
substantial, 54.
substantive performance in construction contract, 54.
under the influence of intoxicating liquor, 54.
DIRECTED VERDICTS,
civil cases, 15.
compared to judgment N.O.V., 10.
effect of both parties moving for, 16A.
scintilla of evidence, 18.
READY-REFERENCE INDEX 158
DIRECTION OF VERDICT,
tests used in granting or denying, civil cases, 15.
"DIRECTLY INTERESTED" WITNESS,
pecuniary interest in judgment, 40A.
DISCRETION,
trial court giving instructions, 5.
DISPUTED FACTS,
See COMMENTS AND EXPRESSIONS OP OPINION OF THE
EVIDENCE — IN GENERAL.
DOCUMENTS,
interpretation of papers and documents by court, 13.
DUTY OF COURT TO CHARGE,
law with no applicability to presented facts, 4.
DYNAMITE CHARGE,
instruction urging jury to redeliberate, 42A.
ENTRAPMENT,
theories of case in criminal prosecution, 53.
ERRONEOUS INSTRUCTIONS,
failure to apply the law of parties to the facts, 125A.
withdrawal or cure of, 141.
ERROR, PRESERVATION OF, ,
general objections, 174, 175.
given without objection, as law of case, 170.
objection,
method of making, 172.
particularity in grounds for, 173.
party may not claim error for own instruction, 170.
timely objection, 171.
waiver of general objection where one instruction correct, 175.
waiver of objections, 175.
EVIDENCE,
assumption of facts, established, uncontroverted or admitted, 25.
circumstantial,
weight a question for jury, 36.
clear and convincing, plaintiffs burden of proving subjective knowledge, 62B.
comments and expressions of opinion, contract and tort cases, 31.
contradictory evidence, weight of for jury in civil cases, 27.
credibility of witnesses, corroborating or contradictory evidence, 38.
disregarding when erroneously admitted, 73.
duty to instruct, 4.
erroneously received testimony, effect of, 73.
expert witness, weight given, 35.
felony conviction affecting defendant's credibility, 42.
ignoring same in civil cases, 124.
inferences from the evidence and from flight, 66.
inferences of fact by jury, 20.
limitation of purpose of evidence, 56.
limitation of purpose of particular, 56.
negative, weight a question for jury, 36.
pertinency of instructions, 50.
pleadings distinguished, 117.
presumptions, degree of proof, preponderance of evidence in general, 62.
recapitulation of testimony, 51.
summing up by the court, 19.
weight a question for jury, 36.
159 READY-REFERENCE INDEX
EXPERT TESTIMONY,
cases and circumstances in which such testimony is not necessary, 3 5 A.
circumstances in which expert testimony not required, 35A.
court determines qualifications of expert, 14.
defect in design, not necessarily requiring expert testimony to determine, 35A.
FORM AND ARRANGEMENT,
clearness of expression, 94.
contradictory instructions, 104.
example, cautionary as illustrative only, 94.
findings, 111.
generally, 90.
interrogatories, 111.
misleading instructions, 103.
number, limitation on, 97.
quotations from decisions, 102.
reading from statutes or ordinances, 101.
reference to indictment or information, 99.
reference to other instructions, 100.
reference to pleadings for issues, 98.
repetition, civil cases, 95.
repetition, criminal cases, 96.
size of typewriter used in preparation, 105.
special verdicts, 111.
undue prominence in criminal cases, 107.
written and oral instructions, 91.
GOOD FAITH,
requirement of self-defense, 62A.
H
HUNG JURY,
proper inquiry of numerical division of jury, 45 A.
urging redeliberation, 42A.
IGNORING ISSUES,
adverse possession, 123.
IMPEACHMENT,
comment on credibility not a comment on the evidence, 37.
credibility of impeached witness, 41, 69.
invading province of jury, 37.
INFERENCES,
See also CONSTITUTIONAL RIGHTS.
factual, drawn by jury, 20.
failure to testify, 66 A, 71.
INFORMERS,
argument of counsel, 74.
INNOCENCE,
presumption of and burden of proof in criminal cases, 62.
INSANITY,
lay witness testimony on insanity,
competency determined by court, 14.
READY-REFERENCE INDEX 160
INSTRUCTIONS,
abstract, definition of, prohibition against, 121.
abstract, in civil cases, 121.
abstract or misleading, criminal cases, 122.
alibi as subject matter, 72.
all theories of case to be covered, criminal cases, 53
argumentative,
in civil cases, 108.
in criminal cases, 109.
cautionary, 42.
failure of court to give, 42.
when must be given, 42.
circumstantial evidence in criminal case, 64.
clearness of expression, 94.
when not misleading, 94.
coercing jury to reach verdict, the "dynamite charge," 42A.
comments on the evidence, 29.
confessions,
as subject matter, 67.
construction,
in criminal cases, 137.
of charge, as an entirety, 137.
of charge, as an entirety, in criminal cases, 137.
construed,
as series, 136.
as whole, 136.
contradictory, 104.
cure by another, 140.
cure of erroneous instruction by correct instruction in criminal cases, 139.
cure of erroneous instructions, how done, criminal cases, 139.
discretion of trial court in giving, 5.
disparaging statements by court on merits of case, 22.
disregarding evidence, 73.
disregarding testimony erroneously admitted, 73.
duty of court to charge, 4.
duty of court to give, 151.
duty to make timely request, 151.
in criminal cases, 151.
entirety,
instructions to be construed as, 136.
instructions construed as, criminal cases, 137.
erroneous, 73.
error for court not to define intent, 32.
"golden rule'* argument improper, 42.
good character in criminal trials, 60.
improper "dynamite charge," 45.
inferences of fact, court may not direct, 28.
informing jury which party made request, 157.
insanity of accused,
burden of proof, 58.
interest of witnesses,
comment, when proper, 40.
in criminal cases, 41.
jury to draw inferences of fact, 20.
law with no applicability to presented facts, 4.
lesser and included offenses, 57.
limitation of evidence, for particular purpose, 56.
of evidence, 56.
lower grade or degree of crime, 57.
manner of arriving at verdict,
supplemental instructions for possibly deadlocked jury, 75.
misleading, 103.
beyond scope of evidence, 119.
beyond scope of pleadings, 117.
161 READY-REFERENCE INDEX
INSTRUCTIONS—Continued.
Misleading — Continued.
civil case, 103.
if law of parties not applied to the facts, 125A.
modification by court, 158.
necessity of,
multiple parties, 4.
necessity of clear expression in requested instruction, 155.
no duty to instruct on abandoned issues, 123.
objection to, when necessary, 151.
party's entitlement to, 4.
pertinency,
to evidence, comment on effect of income tax, 119.
to issues, 123.
to issues and evidence, 50.
to pleadings, 115.
preempted, in insurance cases, 20,
preemptory, when given, 20.
prejudicial error, 138.
by court, 22.
test to determine, 103.
presumption of innocence, 62.
purpose, 11.
read as a whole, 136.
readings from statutes, 101.
reference to other instructions, 100.
referring to deadlock, jury's numerical division, 75A.
reforming earlier verdict by, 126 A.
refused, 158. See also section 159.
refused,
cannot be "saved," 152.
when covered by other instructions, 154.
when incorrect as presented, comment on, 157.
repetition of,
in civil cases, 95.
in criminal cases, 96.
requested by defendant and relied on as defense, 11, 53, 151.
requests, when necessary, 151.
alibi defense, 151.
separate consideration of guilt or innocence of each charge, 4.
theories of case,
in civil actions, 52.
in criminal prosecution, 53.
timely objection, duty to make, 153.
undue prominence in criminal case, 107.
urging jury to redeliberate, 42A.
weight of expert testimony,
concerning insanity, 35.
withdrawal of or cure of erroneous instructions previously given, 141,
written and oral, 91.
INSTRUCTIONS, RULES GOVERNING,
presumption of due care in issue of contributory negligence, 61A.
INSURANCE,
cautionary instruction as to liability insurance, 42.
INTERPRETATION,
criterion test of correctness, 136.
cure of ambiguous instruction, by other instructions, 140.
instructions construed as series, 136.
ISSUES,
pertinency of instructions, 50.
READY-REFERENCE INDEX 162
JURORS,
cautionary instructions, to, 41.
cautioning individual juror, 43.
publicity, effect on impartiality, 42.
speculation on part of, 11 A.
urging hung jury to redeliberate, 42A.
JURY,
See also PRACTICAL SUGGESTIONS.
cautionary instructions,
refusal to give as basis for mistrial, 42.
cautioning individual juror, 43.
coercion by court improper, 45.
disagreeing, coercion by court improper, 45.
judges of weight of contradictory evidence in civil cases, 27.
private communication from judge,
avoiding the appearance of impropriety, 46. '
private communications from judges during deliberations, 46.
proper questioning by judge of jury's deliberations, 45A.
time for deliberating, 45.
to determine questions of fact, 28.
LESSER AND INCLUDED OFFENSES,
instruction on, 57.
LESSER OFFENSES,
instruction on, 13.
LIMITATION,
purpose of evidence, 56,
M
MISTRIAL,
juror causing, 42.
MULTIPLE PARTIES,
instructions, 4.
NATURE AND PURPOSE,
definition, 1.
duty of court to charge the jury, 4.
law of the case, 3.
office of charge, 2.
NEGLIGENCE,
prejudicial error, 138.
presumption of due care in contributory negligence, 61 A.
res ipsa loquitur, 123.
O
OBJECTIONS,
clearness of grounds of, 172.
in general, 174.
particularity of, 173.
timeliness of, 171.
waiver of, 175.
OIL AND GAS,
instruction on valuation of wells, 45.
163 READY-REFERENCE INDEX
PARTIES,
failure to call material witness, 70.
failure to testify in own behalf, 70.
silence, influence on decisions, 71.
weight of admissions, 34.
PATTERN JURY INSTRUCTIONS,
incorporation of statute wording, 13.
PERTINENCY OF INSTRUCTIONS,
adverse possession,
elements, 123.
criminal cases,
instructions based on sufficient evidence, 120.
PERTINENCY TO ISSUES AND EVIDENCE,
abstractions, criminal prosecutions, 122.
formula instructions, 126.
ignoring evidence in civil cases, 124.
ignoring issues in civil cases, 123.
instructions, 50.
necessity of civil cases, 115.
pertinency to evidence, 4, 119.
pertinency to pleadings in civil cases, 117
PHYSICIANS,
duty of specialist, 90.
PHYSICIANS AND SURGEONS,
malpractice,
statutes of limitation, 152.
PLEADINGS,
pertinency to issues in civil cases, 117.
PRACTICAL SUGGESTIONS,
directing a verdict, 184.
instructing the jury, 180.
proper form of judge's inquiry as to numerical division of jury, 180.
recalling jury for further instructions, 180.
PREJUDICIAL ERROR,
cautionary instructions, 42.
failure to give, on admissions, 42.
none given, failure of accused to testify, 42.
coercing the jury to reach a verdict, 45.
comments and expressions of opinion in contract and tort cases, 31.
"dynamite charge," 45.
misleading instruction, 103.
requests, criminal cases, no prejudicial error when granted by trial court, 153A.
test to determine, 103.
PRESUMPTION OF DUE CARE,
applied to contributory negligence, 61 A.
PRESUMPTIONS,
burden of proof and presumption of innocence in criminal cases, 59, 62.
PROOF,
inferences to be drawn from flight, 66.
PROVINCE OF COURT AND JURY,
assumption of facts, 24.
judicial notice of, 24.
cautionary instructions, 42.
refusal to give as basis for mistrial, 42.
within sound discretion of the court, 42.
READY-REFERENCE INDEX 164
PROVINCE OF COURT AND JURY— Continued.
coercion of jury improper, 45.
coercing jury to reach agreement, 45, 59.
coercing or interfering with jury deliberations, 45.
comments and expressions of opinion, 29, 31, 32.
criminal cases, credibility of witnesses, 32.
comments on evidence, criminal cases, 32.
competency of witnesses determined by court, 14.
construction of charge as a whole, 137.
court determines qualifications of expert testimony, 14.
credibility of witnesses, 37.
corroborating or contradictory evidence, 38.
in criminal cases, 41.
directed verdict, effect of both parties moving for, 16A.
directed verdicts compared with judgment notwithstanding the verdict, 10.
direction of verdicts in civil cases, 15.
direction of verdict where scintilla of evidence, 18.
duty of court, 11.
function of court to determine legal principles, 12.
function of court to outline issues, state theories and contentions, 11.
function of court to state theories and contentions of parties, 11.
general principles pertinent, 12.
improper comment by court,
criminal case, self-defense, 32.
inferences of fact for jury, 20.
inferences of fact from evidence, 20.
interpretation of papers and documents by court, 13.
jury communications with judge, bailiff as liaison, 46.
opinion on weight and guilt in criminal prosecution, 32.
private communications of judge with juror, 46.
proper form, of judge's inquiry into jury deliberations, 45A.
question of fact and weight of evidence in criminal cases, 28.
question of fact in criminal cases,
justification or self-defense, 28.
question of weight, 28.
race of defendant, discretionary, 42.
reference to indictment or information, 99.
relative functions, 10, 12.
summing up evidence by court, 19.
urging hung jury to redeliberate: "The dynamite charge," 42A.
weight and credibility, 37.
weight of admissions of parties, 34.
weight of circumstantial and negative evidence, 36.
weight of contradictory evidence for jury in civil cases, 27.
weight of expert testimony, 35.
REASONABLE DOUBT,
See also Sections 28, 54.
alibi, charge to acquit, 72.
defense not to be established beyond, 59.
good character as affecting, 60.
what constitutes, 59.
REFUSED INSTRUCTIONS,
covered by other instructions given,
civil cases, 158.
criminal cases, 159.
REQUESTS,
alibi defense, 151.
cautioning as to accomplices, 151.
correctness required, 157.
165 READY-REFERENCE INDEX
REQUESTS— Continued.
court may deny if otherwise covered,
civil cases, 158.
criminal cases, 159.
court may modify, 158.
court must instruct as to material issue without request, 153.
court will not volunteer limiting instruction, 151.
criminal cases, 151, 153, 159.
cautionary instruction on admissions, 151.
matter covered by other instructions, 159.
duty to make timely request, 151.
in criminal cases, 151.
for further or more specific instructions, criminal cases, 153.
formal requisites for refusals of, 154.
ignoring evidence in criminal prosecutions, 125.
malpractice,
statute of limitations, 152.
matters as to which request should be made, 151.
accomplice testimony, 151.
diminished capacity, 151.
modification,
by court, 158.
of requested instructions, 156.
necessity of clear expression in instruction, 155.
no prejudicial error when defendant's requests granted, criminal cases, 153A.
physical restraints on defendant, 151.
refusal,
to ask during voir dire, 158A.
when sufficiently covered by other instructions, 159.
refused,
for errors in request, 157.
instructions in criminal cases, 159.
rejecting, when erroneous, 157.
required to preserve error, 152.
special verdict or findings, 161.
time when must be made, civil cases, 150.
timely, must be made before retirement, 152.
when necessary, 151.
S
SELF-DEFENSE,
good faith requirement, 62A.
justification as determined by trier of fact, 28.
SERVICE,
by process server, 13.
SUBJECT-MATTER,
arguments of counsel, 74.
burden of proof and presumption of innocence in criminal cases, 62.
burden of proof in civil cases, 61.
instructions — rules governing, reasonable doubt, 59.
instructions — theories of case in civil actions, 52.
self-defense, 62A.
theories of cases,
civil actions, duty of court to call attention to, 52.
SUBJECT-MATTER OF INSTRUCTIONS,
accomplice, cautionary instruction on testimony, 28, 41, 69.
accomplice testimony, 69.
alibi, criminal cases, 28, 41, 72.
alibi in criminal cases,
reasonable doubt, 72.
amnesia and burden of proof, 61.
READY-REFERENCE INDEX 166
SUBJECT-MATTER OF INSTRUCTIONS— Continued.
argument of counsel, 74.
burden of proof,
alibi, 62.
burden of proof by clear and convincing evidence, 62B.
circumstantial evidence, criminal cases, 64.
confession, determination of voluntariness, 67.
confessions in criminal cases, 67.
credibility of witnesses in criminal cases, 69.
defendant's theory, 53.
definition of terms,
civil cases, 54.
criminal cases, 55.
diminished responsibility of defendant, 58.
evidence in support of theory, 52.
failure of party to testify in his own behalf or call material witness, 70.
felony conviction affecting defendant's credibility, 42.
good character affecting doubt of guilt, 59, 60.
inferences from flight, 28, 64, 66.
inferences jury may draw, 20.
insanity of accused, 58.
instruction to disregard testimony erroneously received, 73.
intent, 55.
liability insurance, 42.
limitation of purpose of evidence, 56.
lower grade of offense, 57.
pertinency to evidence, 4, 50, 119.
prima facie,
state's burden of proof, 55.
where contained in statute, 55.
publicity and impartiality of jurors, 42.
questions of fact and weight of evidence in criminal cases, 28.
reading from statutes or ordinances, 101.
reasonable doubt, 59.
recapitulation of testimony, 51.
reference to indictment or information, 99.
restatement provisions read to the jury, 50A.
self defense, 62A.
sex material, standards, 42A.
theories of case in civil actions, 52.
theories of case in criminal actions, 53.
weight of circumstantial and negative evidence, 36.
weight of expert testimony, 35.
SUBSTANTIVE PERFORMANCE,
construction contract, 54.
T
TESTIMONY,
disregarding erroneously received testimony, 73.
expert witness, weight, 35.
recapitulation of, 51.
THEORIES OF CASE,
criminal trials, instructions required if requested and supported by evidence, 53.
TRIAL COURTS,
cautioning individual jurors, 43.
determines qualifications to have testimony received as expert, 14.
discretion in giving instructions, 5.
giving cautionary instructions, 42.
private communications with jury during deliberations, 46.
summing up the evidence, 19.
weight of contradictory evidence in civil cases for jury, 27.
167 READY-REFERENCE INDEX
V
VERDICTS,
directed, 15.
time for jury deliberation, 45.
W
WEAPONS,
dangerous weapon, definition, 54.
WITNESSES,
credibility of, 37.
accomplices, 41-
corroborating or contradictory evidence, 38.
defendant with felony conviction, 42.
in criminal cases, 41.
interested witnesses, 4O.
comment on failure to call, 7O
corroboration of accomplice testimony, 69.
criteria for credibility, 37A.
"directly interested** disqualified, 4OA.
disparagement by court, when proper, 37.
expert, weight of testimony, 35.
failure to call material witness, 7O.
failure to call 'witness, 7O,
instances of proper and improper comment by court, 37.
instances of proper comment by court, 37.
interest as affecting credibility, 4O.
interested, accomplice testifying for prosecution, 4O.
recapitulation of testimony, 5 1 .
testifying falsely, 68.
3387
as n
*
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