exception can be based upon such action in the absence of any prejudice shown and within proper limitation such action should be encouraged as leading to more accurate results in jury trials. Drew v. Andrews, 8 Hun, 23; State v. Pitts, 11 Iowa, 343; Nelson v. Dodge, 116 Mass. 367.

§ 165. Instructions as to Duty in Weighing Evidence.-It is competent for the court to instruct the jury, that in weighing the evidence of the accused, they could consider his interest in the case. In Allen v. State, 87 Ala. 107, in reference to a charge on this subject, it is said: "The court should not have gone further in this connection, than to instruct the jury that, in deter. mining the weight they would give to the defendant's testimony, they should consider, along with other circumstances having any bearing on the matter, the fact that he was the defendant." Norris v. State, 87 Ala. 85.

In weighing the testimony of a party, and passing upon its credibility, the jury have an undoubted right to consider all the circumstance under which it is given, including his particular personal interest in the result of the trial; and it is not error for the court to remind them of the latter circumstance, provided he refrains from intimating or suggesting the degree of weight to be given it. See Bulliner v. People, 95 Ill. 394; People v. Morrow, 60 Cal. 142; Minich v. People, 8 Colo. 440.

§ 166. Relative Weight of Positive and Negative Testimony. It is a rule of presumptions that ordinarily a witness who testifies to an affirmative is to be preferred to one who testifies to a negative, because he who testifies to a negative may have forgotten. It is possible to forget a thing that did happen. It is not possible to remember a thing that never existed. Stitt v. Huidekoper, 84 U. S. 17 Wall. 385,21 L. ed. 644.

The distinction between positive and negative testimony may be illustrated thus: it is positive to say a thing did or did not happen; it is negative to say that a witness did not see or know of its having happened. Where the witnesses are equally credible, positive testimony will outweigh negative testimony. But testimony stated in a negative form is not always negative testimony; thus, where a witness swears positively that the defendant did not strike the blow, this is not negative testimony, but is entitled to equal weight with the testimony of another witness, who swears that he did strike. Negative testimony

may sometimes, however, equal positive in weight, and even exceed it; as for instance, where there is an inherent improbability in the positive testimony. Rapalje, Crim. Proc. § 231, citing McConnell v. State, 67 Ga. 633; Moon v. State, 68 Ga. 687; Johnson v. State, 14 Ga. 55; Delk v. State, 3 Head, 79; Coughlin v. People, 18 Ill. 266, 68 Am. Dec. 541. See Rapalje, Witnesses, $193.

The weight of the negative testimony depends upon the observation, whether exhaustive or slight. Murphy v. People, 90 Ill. 59. If the attention of the negative witness is concentrated on a particular point, his testimony may outweigh a witness who swears affirmatively, but whose attention has not been so concentrated. Reeves v. Poindexter, 53 N. C. 308; Malone, Crim. Briefs, p. 103. Full and conclusive proof, where a party has the burden of proving a negative, is not required, but even vague proof, or such as renders the existence of the negative probable, is, in some cases, sufficient to change the burden to the other party. People v. Pease, 27 N. Y. 45.

§ 167. Nature and Scope of the Scintilla Doctrine.-Decided cases may be found, where it is held that if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule, to wit: that, before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed. Schuylkill & D. Imp. & R. Co. v. Munson, 81 U. S. 14 Wall. 448, 20 L. ed. 872; Pleasants v. Fant, 89 U. S. 22 Wall. 120, 22 L. ed. 782; Parks v. Ross, 52 U. S. 11 How. 373, 13 L. ed. 735; Merchants Nat. Bank of Boston v. State Nat. Bank of Boston, 77 U. S. 10 Wall. 637, 19 L. ed. 1015; Hickman v. Jones, 76 U. S. 9 Wall. 201, 19 L. ed. 553.

Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence. Ryder v. Wombwell, L. R. 4 Exch. 39.

"A jury cannot be permitted to find there is evidence of a fact

where there is not any. A plaintiff cannot read his writ to the jury and claim a verdict without submitting any evidence. Nor can he do so where the evidence is too slight or trifling to be considered or acted upon by a jury. The evidence must have some legal weight. There is no practical or logical difference between no evidence and evidence without legal weight." "The old rule that a case must go to the jury if there is a scintilla of evidence has been almost everywhere exploded. There is no object in permitting a jury to find a verdict which a court would set aside as often as found. The better and improved rule is, not to see whether there is any evidence, a scintilla, crumb, or dust of the scales, but whether there is any upon which a jury can, in any justifiable view, find for the jury producing it, upon whom the burden of proof is imposed." Accordingly, the presiding judge directs a non-suit where the jury would not be authorized for the plaintiff under the evidence adduced. Thomp. Trials, § 2449, citing Connor v. Giles, 76 Me. 132; Beaulieu v. Portland Company, 48 Me. 294; Brown v. European & N. A. R. Co. 58 Me. 384; Rourke v. Bullens, 8 Gray, 549; Pray v. Garcelon, 17 Me. 145; Head v. Sleeper, 20 Me. 314.

As late as 1885 the Missouri supreme court held that "whether there is any evidence, or what its legal effect may be, is to be declared by the court. And if there is no evidence to support an issue, it is the duty of the court so to instruct the jury;" but “if there is any evidence it must go to the jury, who are exclusive judges of its weight and sufficiency," "however slight it may be, and whether direct or inferential." Tested by this rule, let us advert briefly to the character and nature, force and effect of the plaintiff's evidence, and also to the position and relation of the parties plaintiff and defendant, to each other and to the title and possession of the premises in controversy. Charles v. Patch, 87 Mo. 450. It should be added that the courts of this state manifest a very strong attachment for a rule that is abrogated entirely in many jurisdictions. This attachment is evidenced by the following authorities. Hays v. Bell, 16 Mo. 496; Houghtaling v. Ball, 19 Mo. 84, 59 Am. Dec. 331; Chambers v. McGiveron, 33 Mo. 202; Deere v. Plant, 42 Mo. 60; McKown v. Craig, 39 Mo. 156; Matthews v. St. Louis Grain Elevator Co. 50 Mo. 149; Chamberlain v. Smith, 1 Mo. 482; Speed v. Herrin, 4 Mo. 356; Obouchon v. Boon, 10 Mo. 442; Robbins v. Alton Marine F. Ins. Co. 12 Mo.

380; Dooly v. Jinnings, 6 Mo. 61; Todd v. Boone County, 8 Mo. 432; Winston v. Wales, 13 Mo. 569; Clark v. Hannibal & St. J. R. Co. 36 Mo. 202; Lee v. David, 11 Mo. 114; Meyer v. Pacific R. Co. 40 Mo. 151; Glasgow v. Copeland, 8 Mo. 268; Hughes v. Ellison, 5 Mo. 110; Morton v. Reeds, 6 Mo. 64; Emerson v. Sturgeon, 18 Mo. 170; Rippey v. Friede, 26 Mo. 523; Charles v. Patch, 87 Mo. 450; Flori v. St. Louis, 3 Mo. App. 231.

A note by the Hon. Robert Desty appended to the case of People v. People's Ins. Exch. 2 L. R. A. 340, collates the recent authorities bearing upon this subject and correctly expresses the principles of law obtaining with reference to this doctrine. I append a paragraph of the note referred to:

"Formerly it was held that if there was what was called a scintilla of evidence in support of a case, the judge was bound to leave it to the jury; but recent decisions of high authority have established a more reasonable rule; that, in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof rests. Schuylkill & D. Imp. & R. Co. v. Munson, 81 U. S. 14 Wall. 442, 20 L. ed. 867; Pleasants v. Fant, 89 U. S. 22 Wall. 120, 22 L. ed. 782; Marion County v. Clark, 94 U. S. 284, 24 L. ed. 61; Griggs v. Houston, 104 U. S. 553, 26 L. ed. 840; Bagley v. Cleveland Rolling Mill Co. 21 Fed. Rep. 159; Wittkowsky v. Wasson, 71 N. C. 451; Dwight v. Germania L. Ins. Co. 103 N. Y. 341, 57 Am. Rep. 729; Burke v. Witherbee, 98 N. Y. 562; Culhane v. New York Cent. & H. R. R. Co. 60 N. Y. 136; Mc-* Keever v. New York Cent. & H. R. R. Co. 88 N. Y. 667. Since the scintilla doctrine is exploded both in England and this country, the preliminary question for the court is not, whether there is no evidence or a mere scintilla, but whether there is any that ought reasonably to satisfy the jury that the fact sought to be proved is established. Hyatt v. Johnston, 91 Pa. 200; Ryder v. Wombwell, L. R. 4 Exch. 39; Codding v. Wood, 112 Pa. 371. See note to Charon v. Geo. W. Roby Lumber Co. 66 Mich. 68. Where there is anything to go to the jury the case should be submitted (Marcott v. Marquette, H. & O. R. Co. 47 Mich. 1); so if different minds could draw from the evidence different conclusions. Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 99;

Sioux City & P. R. Co. v. Stout, 84 U. S. 17 Wall. 657, 21 L. ed. 745." See Abbott, Trial Brief (1885), 124.

It is clearly impossible to co-ordinate into any mutual relation of unity the discordant decisions upon this subject of scintilla evidence. The rules enforcing the observance of this theory have proven both untenable in doctrine and vicious in practice and should be ignored.

a. Statement of the Pennsylvania Rule.-Even in Pennsylvania where the principle received its utmost expansion, the more reasonable rule is now, as stated by Mr. Justice Sharswood in in Howard Exp. Co. v. Wile, 64 Pa. 201, that "where there is any evidence, which alone would justify an inference of a disputed fact, it must go to the jury. There is in every case triable by jury a preliminary question of law for the court, whether or not there is any evidence from which the fact sought to be proved may be fairly inferred, if there is, that is sufficient to send the case to the jury, no matter how strong may be the proofs to the contrary. It is unnecessary to cite authorities in support of a principle so plain; this is the doctrine now generally recognized, not only in the courts of this and the sister states, but also in the Federal and English courts. In determining the sufficiency of the evidence, the court must of course take it as true, with every reasonable inference favorable to him who has the burden of proof. Blakeslee v. Scott, 37 Phila. Legal Int. 474; Sidney School Furniture Co. v. Warsaw Twp. School Dist. 122 Pa. 494."

b. Views of Judge Foster.-The following paragraph from the opinion of Mr. Justice Foster of the Maine supreme judicial court will outline the juridical view now in the ascendency in that jurisdiction. The reaction from the Pennsylvania view is very pronounced:

"Upon a careful examination of the evidence in the case under consideration, we are satisfied that the verdict cannot stand. There is not sufficient evidence upon which a jury could properly found a verdict that the plaintiff himself was in the exercise of due care at the time he received his injury. This is an affirmative proposition which, in this state and many of the others it is incumbent on the plaintiff to make out by proof before he could be entitled to recover. Dickey v. Maine Teleg. Co. 43 Me. 492; Lesan v. Maine Cent. R. Co. 77 Me. 87; State v. Maine Cent. R. Co. 77 Me. 541; Crafts v. Boston, 109 Mass. 521; Taylor v. Carew