The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-10-29


eaid. if anything, about cumming it
for T<ilgo and Judge Montgomery's
mods" and consultation with Kilgo, and
bis reference to Greenleafs Evidence,
and DIR. Kilgo's conduct and behavior in
cross-examining witnesses, including the
rloirtiff that he was imperious, over
hearing. offensive and brutal to plaintiff
in cross examining him Except you may
consider this, if true, in connection with
tbe testimony of the plaintiff as TO why
no didn't answer questions asked), and
that certain evidence was excluded upon
said trial.
As TO all these matters, if they occur
red they were simply incidents Of trial,
and all were under the control Of the
Board of Trustees, and are not to be con-
eidered by the jury in any respect, ex-
cent as tending to show there was trial
heing conducted before the Board of
trustees. They are not to be considered
as evidence of the A.lsity or malicious
ness of the publication, or on the Ques-
tion Of damages.
The evidence as to Kilgo and Oglesby
living on their abdomens under the shade
of the trees, and of excluding newspaper
correspondents, including Merritt, from
the meeting and closing the doors on
him does not have anything to do with
the case, and is withdrawn from ano
must not be considered by the just at all
in passing upon any of the issues of this
case or in considering the case.)54
The defendants except to the manner
and time of withdrawing evidence be-
tween SO and "a from the jury, and in
sist that when evidence is admitted and
remains with the jury several days, it
cannot be withdrawn from the jury as
was done in this case. and assign such
ruling and order of His Honor as error.
(EXception.)
One hundred and thirty second excep-
ton.
The evidence in the case was taken
down by a stenographer, and at the be-
ginning of the argument very little OF
it had been Transcribed by him, and the
same was not completed until short
time before the court began it's charge.
The evidence covered about eighty type
written single spaced pages. The de-
PENDANTS requested the court to put It's
charge and every part of it in writing,
and the court had not completed ire
writing of it's charge and the reading
and consideration Of the evidence and eX-
ceptions thereto, when the argument was
concluded. and the court announced its
rulings as to the exclusion or evidence,
as hereinbefore set out, as soon as II
conld be done under the circumstances.
This case was being tried for several
DAVIS Some of the ablest lawyers in
the State had appearances on either side,
and the plaintiffs counsel were allowed
in the argument to use a mass OF evil
dence against the defendants totally in
competent and calculated to arouse pas
sion and prejudice against the defendants
and to obscure the real question at
issue.
But the plaintiffs counsel here con-
tended that. under our decision, his
honor did what was allowable. They in
sisted that he simply corrected slip
in the admission of evidence. We have
searched our Reports for cases bearing
on the question of the right and power
of the trial judge to correct slip in
admitting incompetent evidence. The
first one is that of State V. Nay 10
N. c. 1928. There, the court held that if
improper evidence be received, it may
afterwards be pronounced incompetent
and the jury instructed not to consider
it, The court said, Chief Justice Ruffin,
speaking for the court: "In such case,
conceive it is not the object of the
law. nor the province of an appellate
tribunal to watch for and catch at an
inadvertence into which the judge was
betrayed for an instant; but to see that
no error was finally committed, and
no ,,1f oil haf
country were truly administered" In
McAllister v McAllister, "a N. c. 1874,
there was one piece of incompetent evil
dence received-the registers book. The
court said, IF there had been an error
In admitting the registers book, the de-
PENDANT would have no cause OF COM
plant, for the evidence was clearly and
promptly withdrawn from the jury as
irrelevant, and the defendant suffered no
prejudice from it. 1t is undoubtedly
proper, and in the power of the court to
correct a slip by withdrawing improper
evidence from the consideration of the
jury, or by giving such explanations of
an error as will prevent it from mislead-
ing a jury. Here, that was so effectually
done that neither the court nor the
counsel on either side took any notice of
vations to the jury"
In State V. Collins, SO N. c. 564, after
the evidence had closed and one of the
counsel for James Collins had finished
addressing the jury, and when the solicit
tor was partly through his remarks to
the jury, but before the last speech of
the defendants counsel (who had the
closing speech) was made, his honor
told the jury that the declaration of the
defendant, Julius Jones, made to the
witness Southall, which had been re-
ceived in evidence, was inadmissble and
was ruled out.
In Bridgers VS.. Dill, 81 N. c., 225, the
court told the jury that the evidence
of one of the witnesses on one point
how much crop might have been made on
piece of land but FOR the trespass
was to be excluded from their considera.
ton. So, in the cases of State VS. Ellen,
104 N. c., 853, State VS.. Crane, 10 N. c.,
$50; Wilson VS.. Manufacturing Co., 12O
N. c., "a, and Crenshaw VS.. Johnson, 120
n. c., 270, only one point of evidence
was corrected and withdrawn from the
consideration of the Jury But the Ter