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In a trial for homicide, evidence that the deceased was reputed to be of a peaceable disposition is irrelevant, unless in rebuttal, where the defense alleges his quarrelsome character.1 But evidence of the character of the deceased, to show that he was quarrelsome, turbulent and vindictive, or the reverse, is admissible in behalf of the prisoner under a plea of self-defense, but only where the evidence as to this main fact is contradictory and it is not conclusively shown that defendant was solely in fault.?

§ 11. Province of judge and jury. The main question involved, so far as the evidence is concerned, where an issue of

App. 414; State v. Ellwood, 17 R. L. 763; Felsenthal v. State, 30 Tex. App. 675. "The old rule that evidence of the good character of the defendant is not to be considered unless other evidence leaves the mind in doubt has been much criticised. The weight of authority is now against it. If evidence of reputation is admissible at all, its weight should be left to be determined by the jury in connection with all the other evidence in the case. The circumstances may be such that an established reputation for good character, if it is relevant to the issue, would alone create reasonable doubt, although without it the other evidence would be convincing." Commonwealth v. Leonard, 140 Mass. 470, 479.

1 Pound v. State, 43 Ga. 88; Roten v. State (Fla., 1893), 12 S. Rep. 910; Russell v. State, 11 Tex. App. 288; Thomas v. People, 67 N. Y. 218; State v. Hockett, 70 Iowa, 442; People v. Bezy, 67 Cal. 223; Riley v. Com. (Ky., 1893), 22 S. W. Rep. 222; State v. Hogue, 6 Jones (N. C.), 381; Chase v. State, 46 Miss. 683; State v. Pearce, 15 Nev. 188; Bowman v. Smith (Tex., 1893), 21 S. W. Rep. 48; Fields v. State (Ind., 1893), 32 N. E. Rep. 780. 2 Perry v. State, 94 Ala. 25; West v. State, 12 Tex. App. 640; Bond v. State, 12 Fla. 738; Roten v. State

(Fla., 1893), 12 S. Rep. 910; State v. Graham, 61 Iowa, 608; Alexander v. Com., 105 Pa. St. 1; Marts v. State, 26 Ohio St. 162; People v. Harris (Mich., 1893), 54 N. W. Rep. 645; State v. Downs, 91 Mo. 19; Smith v. State (Tex., 1893), 20 S. W. Rep. 831; Reiley v. Com. (Ky., 1893), 22 S. W. Rep. 222; State v. Mathews, 78 N. C. 523; State v. Pearce, 15 Nev. 188; Com. v. Strasser, 153 Pa. St. 431; Harrison v. Com., 79 Va. 374; State v. Nett, 50 Wis. 524; State v. Taylor, 44 La. Ann. 783; May v. People, 8 Colo. 210; Drake v. State, 75 Ga. 413; State v. Kenion (R. I., 1893), 26 Atl. Rep. 199. For evidence of a threat made by the victim against the accused to be admissible, it is generally but not universally held that it should have been communicated to him if he alleges that his actions were influenced by it. People v. Scoggins, 37 Cal. 683. But evidence of specific acts of violence is not admissible. Campbell v. State, 38 Ark. 498; People v. Druse, 103 N. Y. 655; Nelson v. State (Fla., 1893), 13 S. Rep. 361; Fields v. State (Ind., 1893), 32 N. E. Rep. 780. So where the defense is that the deceased committed suicide, evidence of his melancholy disposition is relevant. Blackburn v. State,

23 Ohio St. 146.

fact is tried by the court without a jury, must be its weight and sufficiency. Under such circumstances no question of admissibility can arise,— the judge in any event having to hear or read it. Of course the relevancy of the testimony is always to be considered whether the trial is by jury or not; but where a jury is present, it is the office of the judge to determine all questions of admissibility, basing his decision to a large extent upon the relevancy of the testimony offered to the point in issue.1

The weight to be given to the evidence and the credibility of the witnesses, in all cases where upon the testimony an issue of fact appears to arise, are for the consideration of the jury alone. "But whether there is any evidence is a question for the judge; whether it is sufficient evidence is for the jury."3 If the evidence offered by the party upon whom the burden of proof rests is clear, distinct and uncontradicted, so that no inference need be drawn, or where only one inference can be possibly drawn by any reasonable man, and the other party offers no evidence or fails to prove one or more material points of his defense, it becomes the duty of the court to direct the jury to find a verdict in favor of the plaintiff.

11 Greenl. on Evid., § 49.

2 Campbell v. State (Tex., 1893), 18 S. W. Rep. 409; State v. Jones, 44 La. Ann. 1120; State v. Plum, 49 Kan. 679; People v. Zormeck, 66 Hun, 626; State v. Mexley (Mo., 1893), 22 S. W. Rep. 575; Jackson v. Times, 152 Pa. St. 406; White v. State, 21 Tex. App. 339; State v. Mounts, 106 Mo. 226; State v. Kibling, 63 Vt. 636; People v. Minaugh, 131 N. Y. 563; Blankenship v. State, 55 Ark. 244; People v. Cowgill, 93 Cal. 596; Newberry v. State (Fla., 1890), 8 S. Rep. 445; Weston v. Brown (Neb., 1890), 46 N. W. Rep. 826; Louisville, etc. Co. v. Stommel, 126 Ind. 35; Henderson v. Miller, 36 Ill. App. 232; Stanley v. Montgomery, 102 Ind. 102; Davis v. Hays, 89 Ala. 563; Higginbotham v. Campbell, 85 Ga. 638; Yost v. Mensch, 27 W. N. C. 562; West

brook v. Howell, 34 Ill. App. 571;
Wessels v. Beeman, 87 Mich. 481;
Chicago, etc. R. R. Co. v. Fisher (Ill.,
1892), 31 N. E. Rep. 406; Didier v.
Penn. Co., 146 Pa. St. 582; 23 Atl. Rep.
801; Johnson v. People, 140 Ill. 350;
29 N. E. Rep. 895; Webster v. Frow-
ler, 50 N. W. Rep. 1074; 89 Mich. 303;
East Tenn. etc. Co. v. Markens, 88
Ga. 60; Kansas, etc. Co. v. Ryan, 49
Kan. 1; 30 Pac. Rep. 108; Leiber v.
Chicago, M. & St. P. Co. (Iowa, 1892),
50 N. W. Rep. 547; Albertsen v.
Terry, 109 N. C. 8; Williams v. Dick-
enson, 28 Fla. 90; Conde v. Wiltsic,
131 N. Y. 647. See post. § 342a.
31 Greenl. on Ev., § 49.

4 Sauber v. Collins, 40 Ill. App. 426; Plano Mfg. Co. v. Parmenter, 39 Ill. App. 270; Wolff v. Campbell, 110 Mo. 114; 19 S. W. Rep. 622; Meyer v. Houck, 52 N. W. Rep. 235;

On the other hand, where the party on whom is cast the burden of proof fails to substantiate his allegations by evidence showing that he has in law a prima facie cause of action, then there is no case for the jury, and it is the duty of the judge to direct a nonsuit.1

The question of the power of the jury to determine questions of law, though much discussed, may now be considered. settled. It is a proposition of almost universal acceptance that in all cases, both civil and criminal (except where a contrary rule is laid down by some constitutional or statutory enactment), the power of the jury is confined to determining the issue of fact, and that the rulings of the judge on the principles and rules of law involved are to be received by them as obligatory and to be implicitly followed. The pre

McMullen v. Carsen, 48 Kan. 263; 29 Pac. Rep. 317; Fitzgerald v. Hart, 17 S. W. Rep. 369; Gildersleeve v. Atkinson (N. M., 1892), 27 Pac. Rep. 477; Schmidt v. Garfield Nat. Bank, 19 N. Y. S. 252; 64 Hun, 298; Fox v. Spring L. Co., 89 Mich. 387; Haugen v. C., M. & St. P. Ry. Co. (S. D., 1893), 53 N. W. Rep. 769; Eisenlord v. Clum, 67 Hun, 518. See post, §§ 247250.

1"Where the facts are undisputed their effect is for the judgment of the court. Where different minds may honestly draw different conclusions from the facts, as where care and negligence is to be inferred, the question is for the jury." Sioux City, etc. R. Co. v. Stout, 17 Wall. 663; Stillwater v. Archer, 18 N. Y. S. 888; Candelaria v. Railroad Co. (N. M., 1892), 27 Pac. Rep. 497; Leavitt v. Dodge, 61 Hun, 627; Johnson v. Ridir (Iowa, 1892), 50 N. W. Rep. 36; Rumsey v. Boutwell, 61 Hun, 165; Collins v. Burlington, etc. Co., 83 Iowa, 346; 49 N. W. Rep. 848; Central R. etc. Co. v. Ingram (Ala., 1892), 10 S. Rep. 516.

2 For an outline of the discussion, see 1 Greenl. Evid., § 49.

3 See Goldman v. State (Md., 1892), 23 Atl. Rep. 1097; Blaker v. State, 29 N. E. Rep. 1077; 130 Ind. 203. By the constitution of many of the states it is expressly provided that in prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts. Latly v. Emery, 59 Hun, 237; State v. Armstrong (Mo., 1891), 16 S. W. Rep. 604; State v. Burpee (Vt., 1893), 25 Atl. Rep. 964.

4 People v. Lem Yon (Cal., 1893), 32 Pac. Rep. 11; Wright v. Fonda, 44 Mo. App. 634; Sherwood v. Chicago, etc. Co., 88 Mich. 108; Davenport v. Hannibal, 108 Mo. 471; 18 S. W. Rep. 1122; Richards v. Wedemeyer, 75 Md. 10; Gallon v. Van Wormer (Tex., 1893), 21 S. W. Rep. 547; Kidwell v. Carson (Tex., 1893), 22 id. 534; Harper v. Morse (Mo., 1893), 21 id. 517; Chandler v. Knott (Iowa, 1893), 53 N. W. Rep. 88; Willard v. Siegel, 47 Mo. App. 1; Chicago Ch. Co. v. Fogg, 53 Fed. Rep. 72; Elliott v. Wanamaker, 155 Pa. St. 67 ; Campbell v. Juimies, 3 Misc. R. 316; Simpson v. Pegram (N. C., 1893), 17 S. E. Rep. 430. As bearing upon the right of the jury to decide questions

liminary question, whether there is adequate or sufficient evidence, where evidence is given on both sides from which an inference either way may be drawn, is for the judge; and if there is such evidence, no matter how contradictory on the whole it may seem to him, it will be his duty to send the case to the jury. Now the inquiry, is there fit or sufficient evidence to send the case to the jury, can only be decided by the judge by the employment and application of legal rules; and the main question is, are there any facts in evidence which, if uncontradicted or proved, would justify men of ordinary reason, intelligence and fairness in deciding in favor of plaintiff? Though the judge may be convinced that plaintiff has not proved his case, if he believes that reasonable men may entertain a different conclusion, or draw a different inference from those facts, then it is his duty to submit them to the jury; and so long as the inference drawn by the jury is fair and reasonable, it will be valid even though contrary to the conclusion which the judge may draw. But the court in charging the jury should not assume facts as proved upon which no evidence was offered or to which the evidence is so contradictory that reasonable men may form different opinions thereon. Where, however, the fact is conceded by all

of law, see Pierce's Case, 13 N. H. 536; State v. Hodge, 50 N. H. 510; Com. v. McManus, 143 Pa. St. 64; People v. Pine, 2 Barb. 566; Brown v. Com. (Va., 1890), 10 S. E. Rep. 745; Com. v. Abbott, 13 Metc. 123, 124; Higginbotham v. Campbell, 43 Mo. App. 176; Cochran v. Jones, 85 Ga. 678. The province of the court and jury is frequently defined by statute, as, for example, in Connecticut. Morehouse v. Remsen, 59 Conn. 392.

1 "Strictly speaking, evidence is insufficient in law only when there is a total absence of such proof in quantity or kind as, in the particular case, a rule of law requires as essential to the establishment of the fact. Insufficiency in point of fact may exist where there is no insufficiency in point of law; that is, there may

be some evidence to sustain every element of the case competent both in quality and quantity in law to sustain it, and yet it may be met by countervailing proof so potent as to leave no reasonable doubt of the opposing conclusion." Metropolitan R. Co. v. Moore, 121 U. S. 567–569.

2 "The jury should take the law as laid down by the court and give it full effect, but its application is for them to determine. The court may not enter their distinctive province. These are the check and balance which give to trial by jury its value.” Hickman v. Jones, 9 Wall. (U. S.) 201-2. See post, § 377.

3 Wright v. Fonda, 44 Mo. App. 634; Griel v. Lomax, 94 Ala. 641; Newton v. State (Miss., 1893), 12 S. Rep. 560; Patrick v. Skoman (Colo., 1892), 29

parties, or, being proved, is not disputed, it is not an invasion of the province of the jury for the court to state that fact as true in its charge.' The jury must, in the rendition of their verdict, determine the whole issue, involving, as it may, questions of law as well as of fact. In pursuance of this duty as jurors, and having in view their oaths as such, they may disregard any and all expression of opinion on the part of the judge upon any questions of fact and decide adverse to such opinion, provided their decision is not contrary to the evidence. On the other hand it is not only the right, but the duty, of the presiding judge to instruct the jury regarding all points of law involved, and it is the duty of the jury to receive and observe these instructions and to make their verdict conform thereto. So though the weight, sufficiency and credit to be given to the evidence are exclusively a matter for the jury, the court may express its opinion as regards the character of the evidence, provided it is done in such a way that the province of the jury as triers of the issue of fact is not invaded. When, after a proper instruction as to the principles and rules of law concerned, the jury wholly disregard the evidence and the rules of law, the court may set their verdict aside as against the weight of the evidence and as not conformable to the law.2

The court may call attention to the remarks of counsel in connection with the evidence; may caution the jury to be slow in rejecting evidence, or may point out how the intention of a party should be proved; may call attention to the gravity of the offense with which the prisoner is charged, or define malice, or point out the fact that a criminal intent may

Pac. Rep. 21; Chicago, etc. Co. v. Remminger, 140 Ill. 334; State v. Hope, 102 Mo. 410; Hitchcock v. Thayer, 32 Neb. 477; 49 N. W. Rep. 374; St. Louis v. Trimble, 54 Ark. 354; 15 S. W. Rep. 899; Potts v. Jones, 140 Pa. St. 48; Dulaney v. St. Louis S. R. Co., 42 Mo. App. 659; Horn v. State (Tex., 1893), 13 S. Rep. 329; Townley v. Coal Co., 59 Hun, 616.

263; Taylor v. Taylor, 79 Tex. 104;
Trinity, etc. Co. v. Lane, 79 id. 648;
McGuire v. Railroad Co., 43 Mo. App.
354; Bragg v. Bletz, 7 D. C. 105;
Long v. Milford, 137 Pa. St. 122.
2 See post, § 377.

3 Griffin, etc. Co. v. Joannes, 80 Wis. 601.

4 Lyts v. Keevey, 5 Wash. St. 606. Tyler v. Hall, 106 Mo. 313.

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6 State v. McIntosh (S. C., 1893), 17

1 Mooney v. York Iron Co., 82 Mich. S. E. Rep. 446.

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