stated in the writing.227 It is accordingly held, that a bank depositor, testifying to the balance of account as a witness, may refresh his memory from the pass-book as to deposits made and amounts drawn out, where it appears that the entries of deposits were made in the presence of the witness and under his direction, and that the entries of the amount drawn out were made under his direction, and that he knew at the time that the balance stated was correct.228 A landlord having entered defendant's name on the hotel register for a certain date, may testify, after examining the register, that he was a guest on the date in question, though he has no independent recollection thereof.229 A witness may refresh his memory by reference to memoranda of the dates, weights, and prices entered by himself at the time certain sales were made.2 230 § 1231. Argument of counsel.-Upon the close of the evidence, counsel for plaintiff opens the argument to the jury. Defendant replies, and plaintiff's counsel closes. If several defendants, having separate defenses, appear by different counsel, the court must determine their relative order in the evidence and argument.231 The court may then charge the jury. The party who holds the affirmative and calls the first witness has the right to make the closing address.232 If the party who holds the negative waives his right to make argument, the plaintiff cannot make a second speech.233 A court rule prohibiting an attorney who offers himself as a witness in the case from making argument to the jury, except by permission of the court, may act as a waiver of the right to argue.234 On argument on demurrer to one separate defense, another cannot be referred to to sustain it.235 The open 227 Cal. Code Civ. Proc., § 2047. See Burbank v. Dennis, 101 Cal. 90, 35 Pac. 444; Price v. Garland, 3 N. Mex. 285, 290 (505), 6 Pac. 472. 228 McGowan v. McDonald, 111 Cal. 57, 52 Am. St. Rep. 149, 43 Pac. 418. 229 State v. Douette, 31 Wash. 6, 71 Pac. 556; People v. McFarlane, 138 Cal. 481, 71 Pac. 568, 72 Pac. 48, 61 L. R. A. 245. 230 Rohrig v. Pearson, 15 Colo. 127, 24 Pac. 1083. As to memoranda not falling within the rule above stated, see Bergman v. Shoudy, 9 Wash. 331, 37 Pac. 453. 231 Cal. Code Civ. Proc., § 607, subd. 5. 232 Elwell v. Chamberlin, 31 N. Y. 611. As to allowing the right to close to either party, see Fry v. Bennett, 28 N. Y. 324. 233 Seattle etc. R. Co. v. Roeder, 30 Wash. 244, 94 Am. St. Rep. 864, 70 Pac. 498. 234 Voss v. Bender, 32 Wash. 566, 73 Pac. 697. 235 Jackson v. Van Slyke, 44 Barb. 116, note. See Fairbanks v. Irwin, 15 Colo. 366, 20 Pac. 701; Lynch v. Richter, 10 Wash. 486, 39 Pac. 125. ing of the cause, introduction of evidence, and summing up by counsel to the jury, or submitting of the cause to the court or referee, on written points and arguments, after the evidence is closed, are parts of the trial of an issue of fact, and the trial is not completed until the cause is finally submitted to the court, referee, or jury.236 Counsel have a right to discuss the case in all its bearings, and so long as they do not go outside of it and attempt to bring in other matters they cannot be restrained by the court.237 Subject to the general rule that counsel may not comment upon matters of fact that are not in evidence, trial courts should, in the exercise of a reasonable discretion, favor the freest and fullest discussion.238 It is improper upon the trial before the jury for counsel to refer to or in any manner animadvert upon the plaintiff's refusal to consent that her physician be examined. It is a privilege secured by law, and is not to be questioned.239 An argument which refers to the trial judge in language that is wholly unnecessary and grossly improper will not be allowed.240 Where counsel makes an improper argument to the jury during the temporary absence of the judge from his seat, but the judge after his return, upon the objection of the opposing counsel, compels him to desist therefrom, and subsequently instructs the jury to disregard such argument, no error can be founded thereon.241 Misconduct in argument is prejudicial, notwithstanding a subsequent charge.242 But in order to be prejudicial, the remarks must relate to material matters of fact, and not mere opinion.243 The trial court has power, in its discretion, to limit the argument of counsel, and its action in this respect is not the subject-matter of review, unless, possibly, in case of very evident and plain 236 Mygatt v. Willcox, 35 How. Pr. 410. 237 Knight v. Russ, 77 Cal. 410, 19 Pac. 698. 238 Cook v. Doud, 14 Colo. 483, 23 Pac. 906. Also, to same effect, Felt v. Cleghorn, 2 Colo. App. 4, 29 Pac. 813; Hill v. Colorado National Bank, 2 Colo. App. 325, 30 Pac. 489. 239 Kelley v. Highfield, 15 Or. 277, 14 Pac. 744. 240 Diamond etc. Min. Co. v. Faulkner, 17 Colo. 9, 28 Pac. 472; Brownell v. McCormick, 7 Mont. 13, 14 Pac. 651; Green v. Elbert, 137 U. S. 615, 34 L. Ed. 792, 11 Sup. Ct. 188. Reading extracts from law books to the jury, when permitted, see Gilberson v. Miller etc. Smelting Co., 4 Utah, 46, 5 Pac. 699; Sullivan v. Royer, 72 Cal. 248, 1 Am. St. Rep. 51, 13 Pac. 655. 241 Graves v. Smith, 7 Wash. 14, 34 Pac. 213. See Skagit etc. Lumber Co. v. Cole, 2 Wash. 57, 25 Pac. 1077. 242 Spencer v. Town of Arlington, 49 Wash. 121, 94 Pac. 904. 243 Clements v. Watson, 7 Cal. App. 74, 93 Pac. 385. abuse of such discretion.244 The consequences resulting from absences of the trial judge during the argument of a cause to the jury, may be such as to necessitate the granting of a new trial,245 § 1232. Opening statement.-Counsel may read the pleadings to the jury,246 may state his theory of the law,247 and state the nature of his case and of the defense interposed, without anticipating all in the opening statement to the jury." 248 § 1233. Reading law to jury.-Since it is the judge's duty to declare the law to the jury, he may refuse to permit counsel to read supreme court decisions to them;249 for it has a tendency to confuse rather than to enlighten the jury.250 However, such reading is not ground for reversal, unless injury be shown therefrom.251 § 1234. Instructions to jury.-In charging the jury, the court shall state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case, it must inform the jury that they are exclusive judges of all questions of fact. The court must furnish to either party, at the time, upon request, a statement in writing of the points of law contained in the charge, or sign, at the time, a statement of such points prepared and submitted by the counsel of either party.252 The instruction by the court should be a complete charge upon the legal questions to which it relates.253 Ordinarily, an extended charge to the jury is unnecessary. But when the question to be determined by the jury is complicated, and dependent upon a variety of circumstances and conditions, it is important that the jury should be guided in their deliberations by the learning and experience of the presiding judge.254 244 Groth v. Kersting, 4 Colo. App. 395, 36 Pac. 156. See Skeen v. Mooney, 8 Utah, 157, 30 Pac. 363. As to construction of statute limiting time for argument of counsel, see Hurst v. Burnside, 12 Or. 520, 8 Pac. 888. 245 Rose v. Otis, 18 Colo. 59, 31 Pac. 493. 246 Waid v. Hobson, 17 Colo. App. 54, 67 Pac. 176. 247 San Miguel etc. Co. v. Bonner, 33 Colo. 207, 79 Pac. 1025. 248 Mulligan v. Smith, 32 Colo. 404, 76 Pac. 1063. 249 Swope v. City of Seattle, 36 Wash. 113, 78 Pac. 607. 250 Filley v. Christopher, 39 Wash. 22, 109 Am. St. Rep. 853, 80 Pac. 834. 251 Williams v. Spokane etc. Ry. Co.. 39 Wash. 77, 80 Pac. 1100. 252 Cal. Code Civ. Proc., § 608. 253 Bradley v. Lee, 38 Cal. 362. 254 Sutton v. Dana, 15 Colo. 98, 25 Pac. 90. If the court charge the jury erroneously upon a proposition of law which does not arise in the case either upon the pleadings or the evidence, and which could not affect the result, the error is not material, and will not cause a reversal of the judgment.255 Generally speaking, an erroneous instruction, which the record shows could cause no injury to the complaining party, is not ground for reversal.256 A mere misuse of the conjunctive "and" instead of the disjunctive "or" in a charge which has clearly and repeatedly correctly stated the law is harmless error, which will not warrant a reversal.257 Neither the refusal of an unnecessary instruction nor the giving of one not in prejudice of the interest of the complaining party will sustain an assignment of error.258 Comment on the facts by the judge during the progress of a jury trial is harmless error, when not prejudicial to the party complaining.259 But the court should not comment upon the weight of evidence or the credibility of any witness,260 nor should an instruction tend to explain any part of the evidence, 201 but may state the legal effect of facts, without intimating what they are.202 This rule applies only to the disputed facts.263 A judge is bound to instruct a jury upon each proposition of law submitted to him by counsel bearing upon the evidence.264 But he is not bound, without the request of parties, to instruct the jury; and the latter are presumed to be acquainted with all the rules of law in regard to which the parties do not require 25 Satterlee v. Bliss, 36 Cal. 489. 250 Los Angeles etc. Assoc. v. Los Ange es, 103 Cal, 461, 37 Pac. 375; National Bank v. Lempe, 3 N. Dak. 154, N. W. 919. See, also, Witherby v. Thomas, 55 Cal. 9; Winans v. Sierra Lumber Co., 66 Cal. 61, 4 Pac. 952; Huges v. Wheeler, 76 Cal. 230, 18 Pac. 386; Carroll V. Centralia Water Co., 5 Wash. 613, 32 Pac. 609, 33 Pac. 431; Hoagland v. Cole, 18 Colo. 426, 33 Pac. 151; Patrick etc. Co. v. Skoman, 1 Colo. App. 323, 29 Pac. 21; McClellan v. Hurdle, 3 Colo. App. 40, 33 Pac. 280; Denver etc. R. R. o. v. Ryan, 17 Colo. 98, 28 Pac. 79, Simonton v. Rohm, 14 Colo. 51, 23 Pac. 86; Fant v. Lyman, 9 Mont. 61, 22 Pac. 120. 257 O'Connor v. Langdon, 3 Idaho, 61, 26 Pac. 659. P. P. F. Vol. I-50 258 Pinkerton v. Ledoux, 3 N. Mex. 252 (403), 5 Pac. 721. See Territory v. Baker, 4 N. Mex. 117 (236), 13 Pac. 30. For instructions which are to be given on all proper occasions, see Cal. Code Civ. Proc., § 2061. 259 Earles v. Bigelow, 7 Wash. 581, 35 Pac. 390. 260 Kroetcher v. Empire Mills Co., 9 Idaho, 277, 74 Pac. 868. 261 French v. Seattle Tr. Co., 26 Wash. 264, 66 Pac. 404. 262 Belle City Mfg. Co. v. Kemp, 27 Wash. 111, 67 Pac. 580. 263 Lownsdale V. Gray's Harbor Boom Co., 36 Wash. 198, 78 Pac. 904. 264 Zabriskie v. Smith, 13 N. Y. 322, 64 Am. Dec. 551. See Williams v. Williams, 20 Colo. 51, 69, 37 Pac. 614; Hislop v. Moldenhauer, 23 Or. 119, 31 Pac. 252. them to be instructed, or the court does not instruct them.265 Where either party asks special instructions to be given to the jury, the court must either give such instruction, as requested, or refuse to do so, or give the instruction with a modification, in such manner that it may distinctly appear what instructions were given in whole or in part.266 If either party deem any instruction appropriate, he must offer it.267 Proposed instructions should not be read in the hearing of the jury before they are passed upon by the court.20 268 Whenever the knowledge of the court is by the code made evidence of a fact, the court is to declare such knowledge to the jury, who are bound to accept it.269 Matters of general knowledge, such as the use of fenders upon street-cars, may be included in the charge, as though proved by evidence.270 If an equity case is treated as an ordinary action at law, and submitted to a jury as such, and the court considers itself bound and controlled by the verdict as in an action of law, each party has the same right with respect to instruction as if it were a case at law.2 271 The court should give or refuse instructions as asked for, and though the phraseology may be modified to make it more intelligible, yet the sense must not be altered.272 But where an instruction asked by defendant, if given entire, would have been erroneous, the court is not bound to separate the concluding clause and give that by itself, and may therefore refuse to give the instruction.273 A correct charge by the court upon a matter in issue cures a refusal by the court to give a correct charge upon the same point asked by one of the other parties.274 A rule of court requiring counsel to file and submit to the court any instructions they may offer before the argument is closed to the jury does not operate where the cause is submitted without 265 Haupt v. Pohlmann, 16 Abb. Pr. 301; Marine Bank of N. Y. v. Clements, 31 N. Y. 33; Wilklow v. Lane, 37 Barb. 244. 266 Cal. Code Civ. Proc., § 609. 207 People v. Ah Wee, 48 Cal. 239. 268 Waldie v. Doll, 29 Cal. 561. 269 Cal. Code Civ. Proc., § 2102. 270 Spiking v. Consolidated Ry., 33 Utah, 313, 93 Pac. 838. 271 Van Vleet v. Olin, 4 Nev. 95, 97 Am. Dec. 513. 272 Conrad v. Lindley, 2 Cal. 174; Jamson v. Quivey, 5 Cal. 491; Russell v. Amador, 3 Cal. 403; People v. 273 Smith v. Richmond, 19 Cal. 477; Mayor of New York v. Exchange Fire Ins. Co., 9 Bosw. 424; People v. Davis, 64 Cal. 440, 1 Pac. 889; People v. Biddlecome, 3 Utah, 208, 2 Pac. 194. 274 Davis v. Perley, 30 Cal. 630. See Manning v. Dallas, 73 Cal. 420, 15 Pac. 34; Sappenfield v. Main St. etc. R. R. Co., 91 Cal. 48, 27 Pac. 590. |