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Full text of "The Law Of Instructions To Juries In Civil And Criminal Cases Rules And A Complete Colletion Of Approved And Annotated Forms Voluem I Rules"

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- 

8 Lawler 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 

2 7 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 ^ V i P f^ e n?' 

Cochran 2 OLA 537 178 Cal 122 > 172 P 384 >" Redo ? Cla 

C - Talsh v J 5 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. 

46 Baer v. Baird Mach. Co., 84 
Conn 269, 79 A 673. 

47 Wolfe v. Ives, 83 Conn 174, 76 
A 526, 19 AnnCas 752. 

48 Mentz 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 CalA pp 486 > * F 702 - 



Florida. Farnsworth v. Tampa 

35 Federal Lesser Cotton Co. v. Elec> Co ? 62 pi a 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 . C o., 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 negligence 11 and approximate cause 12 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. i0 Lazor 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 

5 6 6 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 p ug h 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 

102 J TexCr 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 TO 5Shx?V' ^ U l ^ Texas - Arguments on the law ap- 

o!VI S ^ 2 LP^ l %x V ' Stat6 ' PKcable to a criminal case are ad- 

25 TT r aA ? P I' t 102 S M fr <n ill Dressed to the sound discretion of 

.oFTfVr^l 6 V i^ 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 i 9 Ffid L H h g 

juries shall be judges of the law and g g ^^ 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 Ca T 1 J 3 ? 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. 

56 Topeka 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. 

fi 9 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. 

3 McNutt 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 ' 4 McGee 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. 

I8 lsham 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. 

20 Gorczynski 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 v f 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 triaL 42 

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. olj k 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. 

54 Tinsley 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/ 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 380 1 (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 
determining 1 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 



37 Killough 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. 

39 Bonelli 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. Armstrong 1 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, afd. 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 complaining 1 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. 

l2 Allsup 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 has 30 or has not been established 31 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- 

39 Devine 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 insanity 65 (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 jeopardy 77 (but if the facts on which a plea of former 
jeopardy is based are not disputed, it becomes a question for 
the court to determine 78 ) ; 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 
621 t 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. bur y 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 A ey v -Jrrr \ " *** . &* * ^~ 

18 GaApp 434, 89 SE 629; New- North ^.^ y _ 

SE J * 90 NC 506 ' 13 SE 30S < referenc * 

bill 4dd. - n mur d er 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), 7jj opcra ft 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 

20 Lownsdale 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. 35 Kempf 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. 

33 Ennes 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 contract 37 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. 

40 Holbrook 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. 

46 Studstill 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. 

50 Gano 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. 

72 Bingham v. Marcotte, Cote & 
Co. ? 115 Me 459, & A 43& 



103 



PROVINCE OF COURT AND JUEY 



32 



ments on the evidence 76 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 370 1 (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, 120 1 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. 

97 Tatum 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 character 9 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. 

2S Vecchio 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. 

48 Earp 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 56 Eggers 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 court 67 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. 

6 s 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. l7 Wilcox 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. 44 McDaniel 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. 

49 Coloritype 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 witness 7 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- 
hibiting 1 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. 
46 Fairey 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 

50 Janssen 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. 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. 

26 Pelfry 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. 

29 Driskill 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, 10 l 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. 
33 Lauer 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. 

39 Federal. 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 committing 1 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. 

84 Leland v. Empire Engineering 
Co., 135 Md 208, 108 A 570; Knabb 
v. Scherer, 45 OhApp 535, 187 NE 
574, 39 OLR 234. 

84a Rooney 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. 

90 Suick v. Krom, 171 Wis 254, 
177 NW 20. 

9 1 Greer v. Thaman (TexCom 
App), 55 SW2d 519. 

92 Withey 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. 

9S Hutson 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 



7 Zackwik 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. 

!0 Monasmith v. Cosden Oil Co., 
124 Neb 327, 246 NW 623. 

1 ' Szuch v. Ni Sun Lines, 332 
Mo 469, 58 SW2d 471. 

!2 Boettger 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. 

l9 Shodcley 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). 

4O Varley 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. 

44 McQuillen 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. 

73 Vann 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. 

78 Lewellen 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. 

85 Pelfrey v. Commonwealth, 247 
Ky 484, 57 SW2d 474. 

86 Kobinson 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. 

96 Bloch 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. 

4 Guyon 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. 

l7 Esty 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. 

39 Bianchi 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 



6 s 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 



89 Pinson 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 respecting 1 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. Gushing 1 , 
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. Young 1 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. 

30 Utica 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. 

32 Wortheim 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. 

34 Laam 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. 

37 Nutt 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. 

52 Whatley 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. 

60 Aarons 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 

9 2 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 

Assuming 1 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 1040 y 
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. 

29 Raarup 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. 

32 Buckhanon 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 
SO 1 , 122 SE 650; State v. Johnson 
(MoApp), 236 SW 365. 

33 Abrams 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, 

3 9 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 dying 1 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 l8 DenBleyker 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. 

36 Mathis 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 F a y 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. 

42 McDaniel 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 defendant 47 

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. Devling 1 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. 

68 Golamb 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 therefor 4 

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. 7 Q 7 193 P 373 

^E^fiWm"!* M tnf s "* ' 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 de S re ? 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. 

' 5 Lindley 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. 

l9 Pendleton 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, 

24 Huntington 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 

26 Keeney 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, 

2 6 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. 42 Hendrix 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 
parties 51 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. 

60 Marquette, 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. 

64 Fitts 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 compelling 1 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. 

98 Gulich 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. 

l5 Hathcock 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 instructions 26 or fourteen 27 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 

20 Schluraff 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. 

33 Veith 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 

38 Jessup v. Reynolds, 208 Miss 624, 241 NW 100. 

50, 43 S2d 753. 43 Frank v. State, 150 Neb 745, 

39 Notarfrancesco 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 cases 88 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. 

62 Lustik 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; 
V 4 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. 

8 Lyon 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. 

30 Cosgrave 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 

33 Hansen v. Parks, 139 Wash 37 Pullman Co. v. Ouster (Tex 

241, 246 P 584. CivApp), 140 SW 847. 

34 Warren v. Pulitzer Publishing 38 Frochter 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 40 Morehouse v. Everett, 141 

201, 81 A 385. Wash 399, 252 P 157, 58 ALR 1482. 

36 Elk Tanking 1 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 obstructed 42 

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. 

4 9 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. 

67 Raney v. Raney, 216 Ala 30, 
112 S 313; Cerriglio v. Pettit, 113 
Va 533, 75 SE 303. 

6s Tuckel 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. 

90 Dillworth 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 supporting 1 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. 

3 Jacobi 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 i n 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. 39 Yazoo & 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 \ Hsch-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 meaning 1 , 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. 

62 Lawson 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- 
ment 83 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. 

S6 Ward 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 injur