Seymour D. (Seymour Dwight) Thompson.

A treatise on the law of trials in actions civil and criminal (Volume 2) online

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decisions imder the Georgia statute, § 2283.
rule under the Texas statute, § 2284.
must not charge as to the credibility of particular witnesses,
§ 2285.

instances under this rule, § 2286.
must not charge as to the weight of evidence, § 2287.

instances under this rule, §§ 2288,2289.
must not draw inferences of fact, § 2290.
nor construe the language of witnesses, § 2291.
English rule allowing judges to express opinion on the facts,
§ 2292.

this rule in force in the Federal courts, § 2293.
and iu the courts of several of the States, § 2294.
must not assume material facts, § 2295.

rule in the Federal courts under this head, § 229G.
incidental expressions of opinion as to the facts,

§§ 2297, 2298.
expressing opinions on the facts by careless or frivol-
ous remarks, § 2299.

by manner and emphasis, § 2300.
giving argumentative iustructions, § 2301.
urging the jury to return a verdict, § 2302.
advising the jurors to yield their individual opinions to each

other, § 2303.
distinction between direction as to the law and advice as to
the facts, § 2304.
of the elements of the charge, §§ 2309-2332.

view that the instructions must be confined to the issues made
by the pleadings, § 2309.

INDEX. 2255


view that the jury should be instructed upon the case inade by
the evidence although variant from the issues made by the
pleadings, § 2310.

amendments in the case of such variance, § 2311.
further of this sul)ject, § 2312.

rule in criminal cases confines instructions to iudict-
mentj § 2313.
judge must state the issues and not refer the jury to the pleau-
. . ings, § 23U.

relation of the charge to the evidence, § 2316.

instructions on illegal evidence admitted without
objection, § 2316.
probative force of the evidence which will warrant the sub-
mission of an hypothesis of fact to the jury, § 2317.
jury must " believe from the evidence," § 2318.
error to submit to the jury an hypothetical state of facts
which on the evidence stands uncontradicted, § 2319.
illustrations of the foregoing, § 2320.
stating abstract propositions of law, § 2321.
instructing as to the lower degrees of crime, §§ 2322, 2323.
instructions should be hypothetical where the evidence is con-
flicting, § 2324.

should be accurate, clear, pointed and definite, § 2325.
should not be ambiguous, inconsistent or contradic-
tory, § 233t).
nor couched in technical language, § 2327.
should cover the whole case, § 2328.
instructing on particular phases or theories, § 2329.
giving undue prominence to isolated parts of the testi-
mony, § 2330.
making a principle of law too prominent by repetition,

§ 2331.
instructions couched in general terms, § 2332.
long and numerous instructions, § 2333.
of requests for instructions, §§ 2338-2369.
non-direction in civil cases, § 2338.
in criminal cases, § 2339.

statutes requiring the judge to charge the jury, § 233&.
statutory rule in Texas, § 2340.
rule that specific instructions must be asked for, § 2341.

the same rule where the judge answers points as in

Pennsylvania, § 2342.
rule in Mississippi that the judge is not authorized to

instruct except upon request, § 2343.
rule in Illinois that the judge may give instructions of.
his own motion, § 2344.
summing up the evidence, § 2345.

2256 . INDEX.

tNSTRTJCTIONS — Coutiuued.

distiuctiou between non-direction and misdirection, § 2346.
riglit to appropriate instructions on request, §§ 2347. 2348.
Tvlieu properly refused, § 2349.

when not wliolly correct in point of law, § 2349.
or lacking detiniteness or precision, § 2349.
or requiring modification, § 2349.
or qualification from instructions given for the
opposite party. § 2349.
modification of instructions requested, § 2350.
judge may instruct in his own language, § 2351.
refusing requests covered by instructions given, § 2352.
revoking or modifying instructions given, § 2353.
withdrawing evidsnce erroneously admitted, § 2354.
error of excluding testimony not cured by an instruction,

§ 2355.
declarations of law in chancery cases, § 2356,
requests wlieu granted, liow presented to the jury, § 2357.
what if jury do not hear the instructions, § 2357.
rule that requests for instructions should be presented before
argument commenced, § 2358.

when not presented after argjiment closed, § 2358.

how as to instructions on a ucav point, § 2358.

when presented before commencement of closing

argument, § 2358,
view that refusal of request after argument com-
menced may be error, § 2359.
view that request must be handed up before the gen-
eral charge is given, § 2360,
view that court is bound to submit requests after
general charge, §§ 2361, 2362.
of additional instructions after the jury have retired, §§ 2363, 2364,
in criminal cases, § 2365.

in civil cases, § 2366.
necessity of counsel being present, 2367,

how under New York code of civil procedure, § 2367.
how under statutes requiring the instructions to be
delivered before argument, § 2368,
whether jury take the instructions to their room, § 2369.
of written instructions, §§ 2374-238;».

at common law, discretionary to charge orally or in writing,

§ 2374.
statutes requiring instructions to be given in writing, manda-
tory, § 2375,
not to be given orally and afterwards written out, § 2376.
oral qualifications of written instructions not permitted,

§ 2377.
right to written instructions may be waived, § 2378.

INDEX. 2257


oral instructions given in favor of complaining party no

ground of error, § 2379.
what is a charge or an instruction within tlie meaning of such

statutes, § 23S0.
whether requests made verbally or in writing, § 2381.
written instructions, how delivered to a jurj', § 2382.

wlien taken down by a stenographic reporter, § 2382.
when marked " given " or "refused " and signed by
the judge, § 2382.

how as to instructions given by the judge

of his own motion, § 2382.

whether judge may read passage from law book,

§ 2383.

interpretation of statutes which require the judge to give or

refuse the instructions asked without qualification, § 2384.

presumptions on appeal or error that instructions were in

writing, § 2385.
at what stage of trial requests for written instructions pre-
ferred, § 2386.
right of counsel to propose such instructions in answer to a

juror's question, § 2387.
loss of the written instructions, § 2388.
clerical errors in written instructions — discretion, § 2389.
of the appellate review of instructions, §§ 2394-2408.
necessity of objecting, § 2394.
necessity of excepting, § 2395.

distinction between exceptions for misdirection and

for non-direction, § 239(J.
exceptions must be taken separately and not en masse,

§ 2397.
grounds of exception must be specifically pointed out,
§ 2398.

statutory rule in Indiana, § 2399.
statutory rule in Texas in cases of felony,
§ 2400.
misdirection no ground for new trial unless jury were mis-
led, § 2401.
nor because of error in instructions unless prejudicial,

§ 2402.
nor where substantial justice has been done, § 2403.
nor because a wrong reason has been given for a

right direction, § 2404.
nor because the instructions were in point of fact mis-
understood by the jury, § 2405.
theory that the evidence will not be looked into to
see whether the verdict was right, § 2406.
. how instructions construed in courts of error, § 2407.

2258 INDEX.


coustrued according to the evidence, § 2408.
cautionary instructions as to ■weighing evidence, §§ 2413-2543.

cautions as to the probative value of various kinds of evidence,
§§ 2413-2456.

court may propose general rules to tlie jury to aid

them in weighing evidence, § 2414.
may rule out improper evidentiary matters, § 2415.
and give instructions limiting the effect of evidence,

§ 2416.
and explain the relative value of affirmative and nega-
tive testimony, § 2417.
and give general advice touching the credibility of
witnesses, § 2418.

and instructions as to partial variances be-
tween witnesses, § 2419.
but must not trench upon the province of the jury,

§ 2420.
nor direct attention to the credibility of particular

witnesses, § 2421.
may give cautious as to the uumber of witnesses,

§ 2422.
may instruct as to the maxim, /a^sjis in uno, falsus in

omnibus, § 2423.
whether error to advise the jury that such testimony

is to be disbelieved unless corroborated, § 2424.
precedents of instructions under this head, § 2425.
credit to be given to the testimony of impeached

witnesses, § 2426.
necessity of corroboration of testimony of accom-
plices, § 2427.

precedent of an instruction under this head,
§ 2428.
as to the weight to be attached to expert testimony,
§ 2429.

cautions as to the acceptance of the facts
stated in the hypothetical questions, § 2430.
as to verbal admissions and confessions, § 2431.

precedents of instructions under this head,
§ 2482.
defense of alibi not to be disparaged, § 2433.

caution to jury as to this defense in Webster's

case, § 2434.
application of the rule of reasonable doubt to

this defense, § 2435.
view that a reasonable doubt of the presence
of the accused at the place of the crime
acquits, § 2436.

INDEX. 2259


view that an alibi is an extrinsic defense as to
wliich the burden of proof is on the accused
to establish it by a preponderance of evi-
dence, § 2437.

jury how instructed where this view
prevails, § 2438.

other instructions as to this defense, § 2439.

model of a complete hypothetical instruction
as to this defense, 2440.

when court not required to charge as to this
defense, § 2441.

effect of an unsuccessful attempt to prove an
alibi, § 2442.

as to the strength of evidence to establish identity

as to the evidence of good character, § 2444.
as to the value of the testimony of the accused, § 2445.
no rule of law enjoining distrust of such tes-
timony, § 2446.
instructions under this head, § 2447.
as to the credence to be given to the unsworn state-
ment of the accused, § 2448.

jury instructed to give it what weight they

think it entitled to, § 2449.
what further cautions siven concernino- it
§ 2450. ' ° *

failure of the accused to testify, § 2451.
absence of countervailing evidence, § 2452.

precedents of instructions on this subiect
§ 2453. ■• '

instructions as to inference from failure of
prisoner to offer explanation, § 2454.
as to the declarations of co-conspirators, § 2455.
as to the necessity of enforcing the criminal laws
§ 2456. '

cautions as to presumption of innocence and the doc-
trine of reasonable doubt, §§ 2461-2495.
general rule, § 2461.

whether a conviction will be reversed for fail-
ing to charge this principle, § 2462.
futility of attempting to define the phrase

"reasonable doubt," §2463,
general rule as stated by Dr. Greenleaf : " sat-
isfactory " or '< sufficient " evidence, § 2464.
whether the absence of reasonable doubt im-
plies entire satisfaction in the conclusion of
guilt, § 2465.




absence of reasonable doubt equivalent to
moral certainty of guilt, § 2406.

or to a " reasonable and moral certainty,"
§ 2467.

or to an " abiding conviction " of guilt, § 24(J8.

or to an *' abiding conviction to a moral cer-
tainty," § 24(19.

or to a " conviction upon ■which a man would
act in matters of the highest concern and
importance to his ovrn interest," § 2470.

this conception repudiated by some courts,
§ 2471.

instructions which do not satisfy this rulC;
§ 2472.

the same subject continued, §§ 2473, 2474.

" a doubt sucii as would cause a prudent man
to pause and hesitate m the graver transac-
tions of life," § 2475.

"a doubt for which a good reason, arising
out of the evidence, can be given," § 247G.

the same subject continued, §§ 2477, 2478.

not a "possible or conjectural doubt," § 2479.

not a "may-be-so" or "a-raight-be-so,"
§ 2480.

hypercritical objections to the words "imag-
inary," "captious," "real," § 2481.

common sense not a guide on this question,
§ 2482.

contra, that common sense is a guide
in some jurisdictions, § 2483.

a probability of innocence, § 2484.

something more than a probability and less
than an absolute certainty, § 2485.

something less than a sentiment clear and
strong, § 248G.

must arise out of the evidence or the want of
evidence, § 2487.

rule that a reasonable doubt as to any essen-
tial fact acquits, § 2490.

rule not applied to mere evidentiary facts,
§ 2491.

reasonable doubt as to the law, § 2492.

reasonable doubt as to degrees of crime, § 2493.

doctrine that a reasonable doubt entertained
by a single jui-or acquits, § 2494.

view that a juror ought not to be so instructed
§ 2495.

INDEX. 2261


cautionary instructions as to circumstantial evidence, §§ 2500-

necessity of instructing tlie jury as to the law of cir-
cumstantial evidence, § 2500.
degree of certainty required to convict on circumstan-
tial evidence, § 2501.

wliether siitiicient if it produce "nearly" the
same degree of certainty as direct evidence,
§ 2502.
contrary view, that the juiy must be " entirely

satisfied," § 2503.
view tliat circumstantial evidence should not
produce a degree of certainty inferior to that
derived from a single witness, § 250-1.
must exclude every rational hypothesis save

that of guilt, § 2505.
but not every " possible " hypothesis, § 2506.
need not be " absolutely incompatible " with
innocence, § 2507.

this principle, how expounded to
juries, § 2508.
must exclude to a " moral certainty" every
hypothesis save that of guilt, § 2509.

but not to an "absolute" moral cer-
tainty, § 2509.
precedents of instructions under this rule,

§ '2510.
view that jury must be satisfied of every es-
sential fact beyond a reasonable doubt,
doctrine that the State must establish every
" link" in the chain of circumstances be-
yond a reasonable doubt, § 2512.
this principle IioAV expounded to juries, § 2513.
the "link" doctrine repudiated, § 25U.
application of the rule of reasonable doubt tc

particular circumstances, § 2515.
instances of erroneous instructions as to rea-
sonable doubt, § 251G.
charge of Chief Justice Gibson in Harman's

case, §§ 2517, 2518.
other precedents of instructions, § 2519.
cautionary instructions as to certain presumptions in
criminal cases, §§ 2524-2543.

as to the presumption of sanity, § 2524.

view that insanity must be established
beyond a reasonable doubt, § 2524.

2262 INDEX.

mSTRUCTIONS — Continued.

or a preponderance of evidence, § 2524.
to the satisfaction of the jury, § 2524.
raising a reasonable doubt of sanity,

§ 2524.
hoTV juries instructed as to tlie qtian-
tum of evidence to establish this
defense, § 2525.
instructions based on the conception
that the evidence must be satisfac-
tory to the jury, § 2526.
a general charge on the subject of
insanity in case of murder, § 2527.
as to the presumption that the defendant
intended the natural and probable conse-
quences of his act, § 2528.

rule under Texas statute, § 2529.

where the injury is caused by
violence, § 2530.
malice implied fi-ora an unjustifiable
killing vrith a deadly weapon, § 2531.
instructions under this head, § 2532.
instructions as to implied malice gen-
erally, § 2533. '
presumption arising from the recent, unex-
plained possession of stolen goods, § 2534.
whether this is a presumption of law

or of fact, § 2535.
view that it is a circumstance merely
for the consideration of the jury,
§ 2536.
elements which must concur to create

this presumption, § 2537.
this presumption partly rebutted by
evidence of good character, § 2538.
necessity of instructing the jury con-
cerning the defendant's explanation,
§ 2539,
precedents of instructions under the

modern view, § 2540.
precedents of instructions under the

English rule, §2541.
instance of such an instruction where
the defense yyas aualibi, § 2542.
as to the presumption of guilt from flight,
§ 2543.
Whether jury take out written instructions, § 2583.
effect of instruction to disregard papers improperly taken out by jury,
§ 2.^92.

INDEX. 2263


whethei" court bouud to instruct witness as to his privilege, § 312.


existence of, -vvlien a question of fact, § 1280.
when a question of law, § i;?13.
instruction on this subject, § 1313.


testimpny as to value of articles destroyed by fire, § 380.

instruction as to authority of an insurance agent to receive notice of

additional insurance, § 1384.
reasonableness of stipulation as to time of giving notice of loss,

§ 1577.
misrepresentations in applications for, question of fact, § 1952.
See FiKE Insurance; Live Insurance; Marine Insurance.


witness may testify as to his intent, § 383.

testimony as to, whei'e concurrence of intent of two parties is material,

accused person may testify as to his intent, § 648.
collateral purpose for which a contract made, a question for jury,

§ 1123.
whether penalty or liquidated damages, question of fact, § 1125.
whether a deed delivered absolutely or as an escrow, question of fact,

intent of parties to a contract of sale to settle by payment of " differ-
ences," § 113!).
In respect of the place where a contract to ))e performed, a question of

fact, § 1142.
to reserve usury, when a question of fact, § 1144.
whether to pay board or receive wages in family relations, § 1157.
Intent governs in determining the question of sale or no sale, §§ 1162,

11G3, 1165, 116G.
whether a purchase bona fide and for value, a question of fact and

intent, § 1171.
Intent governs in fixing time of payment of a demand note, § 1220.
question of payment a question of intent and of fact, § 1251, et seq.
"When to be determined by court and when by jury, §§ 1333-1363.
generally a question for jury, § 1333.

for court, when arising upon a written instrument, § 1333.
for court, when governed by presumption of law, § 1334.
for jury, in case of i)arol gifts, § 1335.

question of eviction between landlord and tenant, §§ 1336, 1337.
where question is whether lease at will expanded into lease

from year to year, § 1338.
whether contract obtained by duress, §§ 1338-1342.
whether husband acted as tenant or servant of wife, § 1343
whether an improvement was made for a residence, § 1344.

2264 INDEX.

INTENT— Continued.

where question is as to purpose for which writings were exe-
cuted, § 1345.
where question relates to revocation of a will, § 134G.
or to the intent to taJie possession under a will, § 1347.
or to redemption or purchase, § 1348.
or to the purpose for which certain declarations were made,

§ 1349.
or whether a conveyance was made to the father or to the

son, § 1350.
or whether an offer was made by way of compromise, § 1351.
or whether certain declarations or acts were intended to create

a trust, §§ 1352, 1353.
or whether a transfer was intended as a gift or as a bequest

for masses, § 1354.
or whether there was a dedication of land to public uses, § 1355.
or an acceptance of such a dedication, § 1356.
or whether such a dedication with user created a highway,

§§ 1357, 1358.
so as to question of domicile or residence, § 1359.
and questions of abandonment under homestead laws, §1360-

or whether there was an intent to ai'rest, § 1363.
question of intent how far involved in question of possession, § 1.410.
waiver a question of intent, § 1435, et seq.
fraudulent intent a question of fact, § 2007.
intent with which words spoken or written, how far material in actions

for defamation, § 2032.
intent in criminal cases, question of fact, § 2154.

judge may direct acquittal where felonious intent does not

appear, § 2154.
question whether the formation of a club was intended as an
evasion of a statute against the sale of intoxicating liquors,
§ 2155.
instruction as to intent in entering a dwelling house in case of

burglary, § 2156.
distinction between reasonable doubt as to act and reasonable

doubt as to intent, § 2505.
presumption that a person intends the uatiiral consequences of
his act, §§ 2528-2530.

of officer drawing jury, § 35, p. 34.

of summoning officer, a ground of challenging array, § 32.
when a disqualification in a juror, § 05.
having similar suit, § 65.
under similar indictment, § 65.
has had a suit against juror challenged, § 65.
executor of estate, § 65.

INDEX. 2265

INTEREST— Continued.

surety for costs, § G5,
surety for appearance, § G5.
objectiou to juror for, waived unless made before verdict, § 116,

p. 118.
of witness subject of fair comment in argument, § 989.
See Usury.

riglit to open and close in cases of, § 242.

of various stipulations and agreements, § 202.
of words in actions for slander or libel, question for jury, § 2027.
of writings, when for tlie court and wlien for tlie jury, § 1065-1096.
of written laws, belongs to the judge, §§ 1050-1061.
of policy of fire insurance in respect of articles insured, § 1305.
of statutes requiring instructions to be given or refused as asked with-
out qualification, § 2384.
of order extending time to " present " bill of exceptions, § 2827.
of special verdicts, § 2G54.

witness not allowed to state what was meant by an expression, § 378,
when want of probable cause declared upon the inspection of a writ-
ten instrument, § 1621.
when fraud declared as a question of interpretation of writings, § 1937,

when expert not compelled to attend as, § 1G4.
examination of witness by sworn interpreters, § 3G6.
what oath administered to interpreter, § 366.
what instructions given to him, § 3CG.
he may talie advantage of suggestions of otliers, § 366.
party may show that interpretation was erroneous, § 366.
examination of deaf and dumb witnesses by, § 367.

in proceedings for contempt, § 138.
to jurors, as to tlie grounds of their finding, § 2621.
See Special Findings.

proceeding for unlawful sale of, whether civil or criminal, § 48.
whether demised premises used for sale of, question of fact, § 1514.
whether the formation of a club intended as an evasion of the statute,

use of, by jurors when ground of new trial and when not, § 2566.
the doctrine restated and the correct rule suggested, § 2567.

witness allowed to testify as to appearance of, § 379.

of deceased person, disqualified as a juror, § 80.

226fi INDEX.


preseuts a question of fact for the jury, § 2031.


statutes concerning view, § 882, p. 669.


not a sufficient objection to evidence, § 694.


not reliearsed in opening statement, §§ 263, 264, 265.

instructing jury to disregard tliem, § 265.
in examination of witnesses, excluded by court, § 352.
re-examination as to, when brought out on cross-examination, § 483.

discretionary to admit, on promise of making it relevant, § 351.


in selecting jury list, not ground of clialleuging array, § 33.
in drawing jury panel, § 34.

in summoning jury panel, no ground of challenging array, § 38.
in impaneling jury, time of objecting, § 113.


jury not sworn until, § 105.


meaning of the term with reference to a pleading, § 386.

stated by judge, and not referred to jury, § 1027.

judge must state, and not refer jury to pleadings, § 2314.

whether instructions confined to, §§ 2309, 2310, 2312, 2313,

general verdict must find all the issues, § 2639.

special verdict must find all the issues, § 2650.



refusing to be sworn on Saturday, guilty of contempt, § 187,


numljer of counsel and speeches where several are joined as parties
§ 928.

of defendants, in actiooi for fraud, § 1965.


entitled to what number of peremptory challenges, §§ 45, 46.


motions for new trial in cases of, § 2720.

for new trial allowed, § 2721.


entitled to what number of pereiui)tory challenges, § 46.

Online LibrarySeymour D. (Seymour Dwight) ThompsonA treatise on the law of trials in actions civil and criminal (Volume 2) → online text (page 117 of 126)