4 be inferred from circumstantial evidence,' or may suggest that certain evidence is uncorroborated; 2 may suggest possible explanations of seeming discrepancies in the evidence and show how that which is inconsistent may be reconciled; 3 may state to the jury that what a party admits against his interest on the witness stand may be considered as true; may call attention to the necessity of a jury agreeing upon a verdict; may state a hypothetical case for the guidance of the jury and to emphasize more clearly the principles of law involved. But to state certain facts as testified to, ignoring all others, and to inform the jury that from those facts they have a right to draw a certain inference, is an invasion of the province of the jury. On the other hand, the law does not require the instructions on the evidence to be entirely colorless, so far as the opinion as to the credibility of evidence is concerned, if the whole case is submitted to the jury to decide on all the facts and the law is accurately stated. A mere hint of an opinion upon the evidence by the court, or his evident leaning to one party or the other, is not enough to warrant a new trial.8 So the court may aid the jury by recapitulating the evidence, refreshing their minds where their recollection is likely to be dim, elucidating that which is complicated and involved, and so advising them that they may be able to take a just and impartial view of all parts of the evidence in their true relations.9 1 State v. McIntosh, supra. 3 York v. Maine R. Co., 84 N. Y. 17. 4 State v. Brooks, 99 Mo. 137; 12 S. W. Rep. 633. 5 State v. Hawkins, 18 Oreg. 476; 23 Pac. Rep. 475. 6 Ohio, etc. Co. v. Kleinsmith, 38 Ill. App. 45; People v. Rohl, 138 N. Y. 616; Cobb v. Covenant Ins. Co., 153 Mass. 176; Wright v. Mulvaney, 78 Wis. 89. Peters v. Bourneau, 22 Ill. App. 177; State v. Choy, 84 Cal. 276. 8 McClain v. Com., 110 Pa. St. 263; 1 Atl. Rep. 45; People v. McLean, 184 Cal. 480; Hurlbut v. Hurlbut, 128 N. Y. 420; McGee v. Wells (S. C., 1893), 16 S. E. Rep. 89; Hoff v. State (Ga., 1893), 16 S. E. Rep. 99; State v. Crawford (S. C., 1893), 17 S. E. Rep. 199. 9" What is said by the court as to the weight of evidence is advisory, in nowise intended to fetter the exercise of the juror's independent judgment. With this limitation it is the right and duty of the court to aid them by recalling the testimony to their recollection, by collecting its details, by suggesting grounds of preference where there is contradiction, by directing their attention to the most important facts, by elimi § 12. Blended questions of law and fact.— The rule that pure questions of law and of fact are for the solution of the judge and jury respectively is on some occasions difficult of application, because of the blending of these questions in one issue in such a manner that they are not easily susceptible of separate determination. In an action for a malicious prosecution, the question of the existence of probable cause is for the court. In other words, where the evidence is conflicting it is for the court to say what particular facts constitute probable cause, leaving it for the jury to find whether or not such facts are proved by the evidence.' Perhaps the most important subject concerning which the respective provinces of the judge and the jury have been discussed is that of the reasonableness of time or of a person's care or skill under certain circumstances. The correct practice in all cases where negligence is alleged is for the judge to instruct the jury upon the amount or nature of the care, diligence or skill which may be legally incumbent upon persons in the circumstances of the defendant, leaving it for the jury to determine, in all cases where the evidence on this point is contradictory, what the circumstances were, and whether the defendant has properly exercised the required care, skill or diligence. The degree of reasonableness of the care is ordinarily defined in general terms, and the instruction amounts usually to a mere statement that negligence consists in doing or omitting to do an act which a person of ordinary care or skill would or would not do under the circumstances.3 This instruction would be nating the true points of inquiry, by resolving the evidence, however complicated, into its simpler elements, and by showing the bearing of its several parts and their combined effects stripped of every consideration which might otherwise mislead or confuse them. How this duty shall be performed depends upon the discretion of the judge. Without this aid, chance, mistake or caprice may determine the result." Nudd v. Burrows, 91 U. S. 439. 1 Cheever v. Sweet (Mass., 1890), 23 N. E. Rep. 831; Leahey v. March, 155 Pa. St. 458; Boogher v. Howe, 99 Mo. 183. Contra, Low v. Greenwood, 30 Ill. App. 184; Archibald v. McLaurin, 21 Can. S. C. R. 588; Sanders v. Palmer, 55 Fed. Rep. 217. 21 Greenl. on Ev., § 50. 3 Deming v. Merch. etc. Co., 90 Tenn. 306; Summers v. Bergner & Eng. Co., 143 Pa. St. 114; Millott v. N. Y. & N. E. R. Co., 19 N. Y. S. 122; Colvin v. Peabody, 155 Mass. 104; 29 N. E. Rep. 59; Mullen v. Railroad Co., 21 N. Y. S. 101; Murphy v. Railroad Co., 62 Hun, 587; Gaynor v. Old Colony R. R., 100 Mass. 208; Ly correct, and it has accordingly been held that if the court instructs the jury that the commission or omission of specific or particular acts constitutes negligence, then he invades the province of the jury by drawing inferences of fact and endeavoring to force his opinions upon them.1 3 § 13. Preliminary questions of fact bearing on admissibility. To ascertain whether evidence is admissible, certain preliminary questions of fact, often of a complex nature, must be considered, and these may, it is settled, be decided by the court unaided by the jury. Thus it is for the judge to say whether the witness is qualified to testify as an expert, and on what subjects he may be examined; whether a dying declaration is inadmissible because the declarant expected to recover; and to decide upon the authenticity and proper execution of deeds and writings generally." So questions as to the voluntary nature of confessions, as to what is hearsay evidence, the admissibility of statements claimed to constitute a part of the res gestæ, or to be admissible as evidence of pedigree, the capacity of witnesses to testify,10 and as to the admissibility of depositions where the witness cannot be man v. Union R. R., 114 id. 83; John- 4 See post, §§ 100-113; Hall v. Com. (Va., 1892), 15 S. E. Rep. 517; Young v. State (Ala., 1892), 10 S. Rep. 913. 5 Tunstall v. Cobb, 109 N. C. 316; Collins v. Ball, 82 Tex. 259; Com. v. Coe, 115 Mass. 481. See § 130. 6 See post, § 90; State v. Carson (S. C., 1892), 15 S. E. Rep. 588. 7 Harter v. Hopkins, 83 Wis. 309; post, §§ 50-62. Post, § 54 et seq. 9 Doe v. Davies, 10 Q. B. 314; post, § 58. 10 Post, SS 313-317. produced,' are for the court. Upon these and similar questions of fact his decision is final unless objected and excepted to at the time and submitted to an appellate court for review upon a proper bill of exceptions in which the evidence is fully set forth. It is discretionary with the judge, however, in case the proof is not convincing, to submit the evidence on any one of these preliminary questions to the jury; and where the issue, as usually happens, is one of mingled law and fact, he is bound to advise them as to the rules of law involved which are obligatory upon them in deciding these collateral issues.' 1 See post, $$ 361-363; Omaha v. Jensen, 52 N. W. Rep. 833; Schindler v. Railroad Co., 87 Mich. 400. 2 State v. Pike, 49 N. H. 399; Matson v. Frazer, 48 Mo. App. 302; Haines v. Sairers, 93 Mich. 440; Carpenter v. Willey (Vt., 1893), 26 Atl. Rep. 488; Wells v. Burtz (Tex., 1893), 22 S. W. Rep. 419; Fleming v. Latham, CHAPTER II. SUBSTANCE OF THE ISSUE § 18. Matter of substance and of es- | § 22. Variance in the proof of sealed sential description. 19. Allegations of value, quantity, time, place, etc. 20. Formal allegations. 21. Proof of contracts. instruments. 23. Substance of the issue in crimi nal trials. 24. Variance. § 18. Matter of substance and of essential description.As regards the amount of evidence which is requisite in any case, it is a general rule that it is necessary only that the substance of the issue should be proved. By the rules of pleading at common law, matter which was essentially descriptive — that is, which identifies the subject-matter on which the cause of action is based must be literally proved. Any variance, however slight, between the allegation of the facts in the pleading and their proof would be fatal. So in a suit to recover damages for false imprisonment, a failure to prove that plaintiff was acquitted on the precise day alleged is no variance if the substance of the issue. e., the acquittal — is proved. But where it is alleged that the plaintiff was arrested "on a charge of larceny and for stealing an ox," and it is proved that the arrest was because plaintiff "did remove or steal one ox from said range," the action should be dismissed because of a material variance in a matter of essential description.3 11 Greenl. on Ev., § 56; Sommer v. Smith (Cal., 1892), 27 Pac. Rep. 208; Vette v. Leonori, 42 Mo. App. 217; Singleton v. O'Blenis, 125 Ind. 151; Cahill v. Colgan (Cal., 1893), 31 Pac. Rep. 614; Scanlan v. Hodges, 52 Fed. Rep. 354; Baxter v. Chicago, R. I. & P. Ry. Co. (Iowa, 1893), 54 N. W. Rep. 350; Wellington v. Howard (Ind., 1893), 31 N. E. Rep. 852; Com'rs v. Lomax (Ind., 1893), 32 N. E. Rep. 800; Hartsock v. Mort, 76 Md. 281; Ahern v. Telephone Co. (Oreg., 1893), 33 Pac. Rep. 403; Olds v. Marshall (Ala.. 1890), 8 S. Rep. 284. 2 Vail v. Lewis, 4 Johns. 450; 1 Greenl. on Ev., § 56. 3 Thompson v. Richardson (Ala., 1893), 11 S. Rep. 728. |