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CHAPTER XXVI.

DUTY OF JURY IN WEIGHING EVIDENCE.

§ 159. What Rules Should Govern.

160. A Distinction Noted.

161. Reconciling Variances.

162. Review of an Apt Decision in the United States Circuit Court.

163. Notes and Memoranda in the Jury Room.

164. May Return into Court for Information.

165. Instructions as to Duty in Weighing Evidence.

166. Relative Weight of Positive and Negative Testimony. 167. Nature and Scope of the Scintilla Doctrine.

168. Statement of the Pennsylvania Rule.

169. Views of Judge Foster.

§ 159. What Rules Should Govern.-In deliberating upon the evidence adduced in the trial of a criminal case, the jury should keep in mind one cardinal principle that is occasionally overlooked. It is the wide distinction between evidence which tends to satisfy an intelligent jury, that the accused has perpetrated a crime, and such evidence as merely tends to raise in the mind of the jury a suspicion of guilt. People v. Williams, 29 Hun, 520.

The question as to the weight of testimony is for the jury exclusively, and it would have been an invasion of their province for the judge to say to them that the character which the prisoner may have established should have great weight with them. The utmost that could be asked of him would be to say to the jury that if they believed that the prisoner had established a good character, that would be a circumstance to be taken into consideration by them in forming their conclusion. State v. Tarrant, 24 S. C. 593.

Within certain limits, the judge may propose to the jury certain rules to aid them in weighing the evidence, and even in determining the credibility of witnesses. Thomp. Trials, § 2414, citing O'Neil v. State, 48 Ga. 66; McLean v. Clark, 47 Ga. 24; Poertner v. Poertner, 66 Wis. 644.

Some embarassment arises when a defendant in a criminal

case offers himself as a witness in his own behalf. In such a case it is the duty of the jury to give his evidence all the credit to which it is entitled; but, in ascertaining the extent of its credibility it is proper and necessary to consider the situation in which he is placed. A person accused of a crime may speak the truth, and it is for the jury to say, in view of all the facts whether or not he has done so in whole or in part. They should give proper weight and effect to all his evidence, if they are convinced of its truth, or so much thereof as in their best judgment is entitled to credit. State v. Slingerland, 19 Nev. 135.

If he makes conflicting statements as to material facts, a charge by the court that if the jury believe that such witness has willfully testified falsely, he is not entitled to credit, and they are authorized to disbelieve his entire testimony, is proper.

As to whether it would be proper for the court to direct the jury to wholly disregard the testimony of a witness who had testified to a willful falsehood, quære. Dunlop v. Patterson, 5 Cow. 243, 247; People v. Evans, 40 N. Y. 1; Pease v. Smith, 61 N. Y. 477, 489; Deering v. Metcalf, 74 N. Y. 503-505; Dunn v. People, 29 N. Y. 523; People v. Petmecky, 99 N. Y. 421; Moett v. People, 85 N. Y. 373; The Santissima Trinidad & The St. Ander, 20 U. S. 7 Wheat. 338, 339, 5 L. ed. 468; Huber v. Teuber, 3 McArth. 485; 2 Starkie, Ev. 873; Sanders v. Leigh, 2 Harr. & McH. 380; Best, Presumptions, 206.

It is unquestionably the duty of the jury to give careful and respectful consideration to the instructions of the court, in every criminal cause, and not to disregard such instructions, except for some sufficient reason addressing itself to their judgment; yet, when the time for their ultimate decision upon the merits of the cause is reached, they have the right to determine for themselves the law as well as the facts by which their verdict shall be governed. McDonald v. State, 63 Ind. 544.

We have considered what evidence is necessary; we have now to consider what evidence is admissible as relevant to the issue. Bearing in mind all that has been said as to the nature of the issue or issues raised by an ordinary criminal pleading, it may be laid down as a general rule, that in criminal, as in civil cases, the evidence shall be confined to the point in issue. In criminal proceedings it has been observed (3 Russell, Crimes (5th ed.) 368), that the necessity is stronger, if possible, than in civil cases, of

strictly enforcing this rule; for where a prisoner is charged with an offense, it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, and matters relating thereto, which alone he can be expected to come prepared to answer. The importance of keeping evidence within certain prescribed grounds is greater now than before the alterations in criminal pleadings. Roscoe, Crim. Ev. 92.

We have elsewhere adverted to the duty of the court to strike out improper evidence that has been inadvertently or unadvisably received, but we cannot be too emphatic in reminding the practitioner that evidence of this character when accompanied by circumstances likely to influence a jury to the prejudice of the accused is not deprived of its obnoxious qualities by being merely stricken from the record. If its effect is evidently pernicious its reception must work a reversal. There is a conflict upon this point and great caution should be exercised in instances of this nature. People v. Zimmerman, 4 N. Y. Crim. Rep. 272.

The jury are not justified in disregarding evidence in the case, unless there is some reason to believe there is some unworthiness or turpitude on the part of the witness offering it.

It is a familiar rule, that no discredit can attach to a testifying witness in the absence of something discrediting to his character. Meissell v. Williamson, 35 Ill. 533; Hartford Life & A. Ins. Co. v. Gray, 80 Ill. 28; Chittenden v. Evans, 41 Ill. 253. The same distinguished court is also authority for the proposition that the weight and credibility of defendant's testimony in a criminal case, must depend upon the testimony of the witnesses taken in its entirety; and as to the duties of the court in giving proper instructions as to the weight and credibility of this testimony, see Chambers v. People, 105 Ill. 414; Bulliner v. People, 95 Ill. 407; Bartholomew v. People, 104 Ill. 601, 44 Am. Rep. 97.

§ 160. A Distinction Noted. The first point in weighing evidence is to ascertain whether the statements to which the witness has testified are facts within his own knowledge, that is, information which he has derived through the medium of his own senses, or whether they are mere beliefs which he entertains, founded upon the exercise of his reasoning powers, and based upon the occurrence of other facts and circumstances. Colby, Crim. Law, chap. 4, p. 160.

§ 161. Reconciling Variances.-Where the testimony of direct witnesses is apparently at variance, it is to be considered, in the first place, whether they be not in reality reconcilable, especially where there is no extrinsic reason for suspecting error or fraud. But, if their statements, upon examination, be found irreconcilable, it becomes an important duty to distinguish between the misconception of an innocent witness, which may not affect his general testimony, and willful and corrupt misrepresentations which destroy his credit altogether. The presumption of reason as well as of law in favor of innocence will attribute a variance in testimony to the former rather than to the latter origin. Partial incongruities, discrepancies in testimony, as to collateral points, are, as has been already observed, to be expected; and it is for a jury to determine whether in the particular instance they are of such a nature and character, under all the circumstances, that they may be or cannot be attributed to mistake. In estimating the probability of mistake and error, and also in deciding on which side the mistake lies, much must depend on the natural talents of the adverse witnesses, their quickness of perception, strength of memory, their previous habits of general attention, or of attention to particular subject matters. Starkie, Ev. (10th Am. ed.) 866.

It is particularly the province of the jury to determine all conflicts in the evidence of a criminal trial, and this rule extends to cases where a witness is in conflict with himself. State v. Adams, 78 Iowa, 292.

§ 162. Review of an Apt Decision in the United States Circuit Court. The entire range of legal literature fails to disclose a more felicitous exposition of this subject than that contained in the opinion of Judge McCormick, in the case of United States v. Hughes. The case is reported from the fifth circuit. The decision was handed down in 1888, and a very brief review of the well considered paragraphs will disclose its rare pertinency to the present discussion. His honor says:

"Each juror is entitled to have, and, in my judgment, is bound to thoughtfully and impartially consider the argument of counsel, the comments of the judge, and the views of his fellow jurors and allow all these such influence in helping him to a satisfactory conclusion as in his judgment their various suggestions deserve, and honestly to strive to bring his own mind and the minds of his fellows into harmony, so that the jury may agree upon a verdict.

It is true that if, in any given case, any one or more of the jury, after an earnest and impartial consideration of all these matters proper to be considered in weighing the evidence, under the law applicable thereto, as given in the charge of the court, cannot bring his mind or their minds to concur in the conclusion of his or their fellows as to the guilt or innocence of the accused, each such juror not only may, but must, adhere to the final and fixed conclusion of his own mind, for it is the logic and the law of jury trials that the twelve minds of the jury must actually and honestly concur in a verdict, before a verdict can rightly be rendered." United States v. Hughes, 34 Fed. Rep. 732.

§ 163. Notes and Memoranda in the Jury Room. The court may permit the jury, upon retiring for deliberation, to take with them any paper or article which has been received as evidence in the cause, but only upon the consent of the defendant and the counsel for the people. The jury may also take with them notes of the testimony or other proceedings on the trial, taken by themselves or any of them.

But it is at all times the undoubted policy of the law to watch over the deliberations of the jury, and to guard them from all impressions and influences in respect to the issues involved not derived from a trial in open court, in the presence of the parties and their counsel, where ample opportunity is given to object to the admission of any evidence or comments not sanctioned by the law.

Slight circumstances and inconsiderable observations may sometimes influence a juror's mind. Watertown Bank & Loan Co. v. Mix, 51 N. Y. 561; Schappner v. Second Ave. R. Co. 55 Barb.

497.

Private communication to a jury is very properly and strongly condemned by Johnson, J., in Watertown Bank & Loan Co. v. Mix, supra. The burden of showing improper communications or observations in writing or otherwise, should not be thrown upon a defeated party, who challenges any irregularity occurring in the deliberation hours of a retired jury. Mitchell v. Carter, 14 Hun, 448.

§ 164. May Return into Court for Information.-It is an elementary principle of criminal practice that the jury may, after their retirement, return into court to receive some further instructions either upon the evidence or as to some point of law. No

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