The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-02-29

| do mean to say that so far as the evidence is
concerned, it was a case which the judge ought
! to have submitted TO the jury, and the jury hav-
ing found the verdict which they did. judge
would be interfering with the functions of jury
if he set aside the verdict upon any view
that he might take of the evidence.
The fourth ground is because of error of law
occurring at the trial in this to-wit: In the Civ
| ing by the court the jury of its own motion
the general instructions given; to the giving of
which instructions and each part thereof the de-
| PENDANTS and each Of them at the time excepted.
| do not know but that am departing from the
settled rules of practice in the federal courts if
! / were to consider the exceptions the charge
| of court as worth anything. His Honor, the
| district judge. delivered a long. full charge. /
| judge from the print it must have taken two
| hours TO deliver it, and when it is concluded this
| is the exception:
the said jury said charge and instructions and to the
giving each and singular part, parcel and prop
said defendants the said Coy and the said Bern
hamer. each and severally at the time excepted
And that is the whole Of this exception. In
other words, exception that means more
III point of law under the established rules of
practice than if the defendant had said, IT ex-
| cept to the charge Of the COURT" but that is no
| exception for the court of to consider.
| The judge of the trial court has q right have
| specific exception. If he has committed an
| error in anything that he has said TO the jury,
| he IS entitled to have his attention pointedy
drawn 20 the very exception, 30 that he may
| then and there correct it. And reports
full of cases without number to the effect that
! charge in the Circuit Court to which other
| cepton is made than general one, that the
party excerpts to the charge, will not be ex-
amined by a court of error. But taking the ex-
| ception to be good one, for the reason that
have just stated, that there is no writ of error
from any conclusion that may have reached
| here. is there anything in the charge that
| is Objectionable 1 have read it and re-read it
carefully Counsel said with much earnestness
that the animus or the charge was wrong. He
referred TO various parts of the charge in which
the judge expressed his opinion on the facts.
That CRITICS m is a very natural one. a very nat
which practiced before went upon the bench,
and probably in most of the Southern and
Western States the judge is not allowed to open
his mouth to the jury In criminal cases except
in writing. He cannot charge the jury the
facts. He cannot aid the jury by discussion
of the facts. But that never has been the rule
in the courts of the United States In the case
to which called the attention of counsel on the
hearing, very recent case. followed by two
cases since. which do not happen to have Just
at this time this was the language used:
In the courts of the United States, in those of
England, from which practice derived the
discretion whenever no thinks it necessary assist
them in arriving at just conclusion. comment
be thinks important. and express his opinion upon
the facts; and the expression of such opinion.
when no rule of law is incorrectly stated. and all
matters of fact ultimately submitted to the de-
termination of the jury. cannot be reviewed writ
of error.
United States have maintained ever since the
organization of our government, is that the
facts, and may indicate his opinion upon the
facts, provided he leaves to the jury the
determin alton of the facts. and provided he dis
tincty tells them that the responsibility is upon
them for what conclusion the facts may Justify.
/ have gone carefully over this charge from be-
ginning TO end, and am bound to say that the
district judge has taken extraordinary pains to
tell the jury, think. in every single instance in
this charge where he would express intimate
decide what the facts were upon the point. One
or two parts of the charge of that character
will refer to.
Now them it is upon that charge that you
whether these defendants guilty not guilty.
These defendants the of everyone arraigned
til they proven guilty That presumption goes
with them until it is overcome and botted out by the
guity-it is not permitted in any to find
eused Of crime guilty-unt the evidence establishes
The jury will look into all these questions and de-
ternine whether the mans character is entitled
weight in making their minds about the fact ulti-
mately to be determined of guilt or innocence
course. leave that as a question of fact for you
1t the duty of such board in such to reach
honest result and to use the means before 1t to ac-
compish that end
And in that connection he distinctly says to
the Jury:
Whether Mr.. Bernhamer, upon that occasion.
gave he was acting under mere pretense, or was
giving his honest Judgment of parliamentary or statu-
tory law it is for the jury to say
about the evidence in this case. but remind you of
what said before, that what say is not binding up
your consciences except far as it commends it.
self to your judgment You ultimately the judges
of all questions of fact the credbiity of witnesses
and the differences to pc drawn from the testimony
and anything that the court says is only for the pur
ing the ultimate rcsp inability with You.
After he had req ated statements of that char
acter over and over again in the charge, he con-
cudes
eentemen-I think I will pass no further review
upon the testimony of this case. Ihavegone through
this more for the purpose of showing you how to
take hold of these questions. have indicated my
own views but they not to be binding upon you
at all unless they conform to your reason and judg
ment when you have surveyed the whole field
Nothing could be more explicit than this. The
trial judge seems to have been scrupnlously
careful from the beginning TO the end of that
charge while doing as he had the right to do. &C
cording to the practice prevailing in the courts
of the United States, and which many think the
best practice. to express his opinion, Il he does
about the weight of evidence upon single
point, in every single instance he cautions the
jury. "you not to be influenced by this, the
responsibility Is upon you to determine the
you the facts and put the responsibility upon
you under your oaths and according to your
conscences to say what the facts are
1t said in the argument, and it is stated
as the fifth error, cause for new trial, In
effect that the court erred in admitting evidence
of changes and erasures upon tally-sheets before
proof had been made of the alleged conspiracy.
/ cannot understand why that evidence was
not competent If the objection be that it was
offered at the wrong time. and that there should
have been fuller evidence before it was offered
of the fact of a conspiracy, that is not very
material circumstance at least not a vital one.
It is matter of discretion with the court as to
the order of proof. 1t would be a very serious
affair, indeed in the administration of justice, if
the court of error were to attempt to interfere
with the discretion of the trail judge who
the Jury, and the parties and the witnesses, and
has before him picture of the from the
beginning TO the end. 1t would be very seri-
Gus matter to interfere with him in his discre-
ton as to the order in which proof should be Of
fered. But apart from the question of order,
il seems to me that that evidence clearly
competent; competent in matter, aud certainly
competent for the purpose of proving in addi-
ton to the conspiracy, that acts had been per-
formed and done in the execution of the
spiracy.
L pass those now to other grounds. The