, 1874-12-18

upon writtcn instructions presented 10 him
by counsel, and to give, rofuse, or modify
them as he may SEQ lit. The evils Of this
systom lavo been very clearly pointed out by
Judge A1qA111sTEn, and he demands, ns
euro, tho rot,,rn to tho old system Of cianrg-
Ing tho jury, or, as it is termed in England,
tho " summing up Of tho caMsc by tho pro"
sitling Judge. The tendency Of Legislation in
this State has boon to withdraw from tho
Court any comments upon tho evidence md |
to conhno Lis instructions simply to tho INV
Of tho caso. BY M act approved 5nn. ~,
1874, and in force July l, 1871, 1t was pro- |
vitled TINT "tho Court in charging the jury |
shall only instruct rs to the Inv Of tho caso,"
thus leaving the jury entirely FREQ to reach
such conclusions MS to tho facts rs they Saw
1T, without MD or Interference from the
Court
Bnt Tho practice Of which Judge NrcA111a-
TER particularly complains, of tho Court
being called Upon to give series of inyen-
iously contrivod a1,d frequently contradictory
instructions prepared by the counsel, does
mob result necessarily from the statute rs it
now stands, but hns grown up from tho lazi-
moss Of Judges unwilling or unablo them
sclvcs to writo such Instructions for the jury
as tho caso demands Sec. 53, Gimp. Ito,
Hunp's Statutes, provides that "Horoafter
no Judge shall instruct tho Petit Jury in my
caao, civil or criminal, unless slcl, instructions
arc reduced to writing" This section docs
not require the Judge to give merely such
instructions as mo presented 10 him by
counsel. Flo 1nny, aud indeed llo should,
himself prernra instructions covering lis
own view Of tho entiro case, 30 that
tho law can DO presented to tho jury III
something like harmonious md consistent
form. It is true TINT the following section (64)
provides that, "When Instructions aro
asked which tho Judge cannot give, llo slall,
on the margin thereof, write tho word ire
fused and such as ho approves he shall
writo OH tho margin thereof the word
'givcn.'" Under any system Of practice,
even that to which Judge MoAL11srEn desires
us to return, counsel Ind tho right to asIs the
Court to instruct tho jury upon certain points
according to oounsel's views Of the law. If,
in series Of instructions prepared by the
Court, tho points covered by tho counscl's
requests to instruct wcre substantially given,
the refusal Of the particular instruction i'll
tho ]angungo employed by counsel would not
be error. The Supreme Courtllas repeatedly
held thnt the refusal to give n particular in
struction is not error, provided tho substance
Of the instruction wns embodied in ono given.
and hence, oven under our statutes rs they
now stand, my Judge dcsiros,s Of giving TO
the Jury aA Intelligent and coherent view Of
tho Inv of tho whole caso can do SO, aud
! should do so.
Tho difficulty is that but very few Judges
| will attempt to TO this nnd SO thoroughly
| established hns tho practico become Of The
counsel writing all the instructions, that the
Judge sits III helpless inal1ition waiting for
tho presentation to him OF series Of ingon-
ious1y-contriyed legal conundrums, prepared,
| in many instances, for the express purpose Of
misleading tho jury and tripping tho Court.
Through this series Of conflicting riddles tho
Court il compelled to grope and guess his
way, aud when tho result is finally reached
| tho jury aro left in condition Of the most
| pcrplexing muldlo.
So completely have the Courts voluntarily
| abaicated their proper end legitimate func-
! tionB TINT in some districts in the State they
| do not oven read tho instructions to the Jury,
but they are turned over to tho counsel for
tic respective parties and by them read. To
call the series Of legal propositions the p" in
str11ctions Of tho Court" is the broadest pos
siblo farce. Written by counsel, they might
rs woll be read by counsel. Tho Court is
supposed to havo looked them over, and
niixcd 10 them his impri'natur, but they give
| Mt best only nero glimpses OF the law Of the
cnso, and those glimpses are from one side.
Nothing like IN Intelligent view Of tho entire
case can possibly be given under this most
vicious system, But tbs obvious tllat tho tlifli-
Guilty does not rest in the fact TINT these ill.,
structious are acristen. It comes from tho fact
TINT tho Judges do not themselves write
them, but aro content to tako merely
such rs counsel SEQ tit to fur
nisll them. Tho old method to which,
| Julgo AIoAL11sTER refers is open to ono very
serious objection, aud no lawyer has
over practicca under that system WHO has not
experienced it. When tho time comeB tc
make. up bill Of exceptions under nj oral
charge to tho jury, troubles begin. A care
less, projudiced, or IN obstinate Judge then
has it i'll his power to substantially deprive
the party taking IN appeal Of ali benefits o
his exceptions. The chargo not being II
writing, tho Court will refuse, having discov'
cred his error, to give it precisely ms deliv
cred. Tho only remedy is by mandanlus
What tho cllargo upon tho particulnr poin
really was, or the exact language in which !
l H.