argument.275 If there is a rule requiring instructions to be handed to the judge by a certain time in the progress of the trial, it is not error for the court to refuse instructions not handed in in time;276 and if a request is not made for a direct instruction upon a point, complaint cannot be made of the court's failure to instruct thereon.277 § 1235. Taking case from jury.-Where different minds might reasonably reach different conclusions from the evidence, a nonsuit should not be granted.278 An instruction may be given to eliminate the effect of incompetent testimony admitted without objection.279 § 1236. Instructions, how given.-Instructions in civil and criminal cases should be drawn with reference to the case, as made by the evidence.280 An instruction of the court to the jury must be adapted to the facts of the case,281 but need not embody the entire law of the case, if the charge as a whole fully covers it.282 Instructions to a jury, asked by a party, which are not pertinent to any issue in the cause, should be refused, even though they embody correct abstract principles of law.283 No instructions should be given to a jury which are not predicated upon some theory logically deducible from at least some portion of the testimony.28+ Instructions should not be unnecessarily repeated, thereby placing undue stress upon them.285 Where the answer was insufficient as a denial of the allegations in the complaint, and the court instructed the jury to find for plaintiff, it' was held that the instruction was right, no evidence being re 275 Tinney v. Endicott, 5 Cal. 102. 276 Waldie v. Doll, 29 Cal. 556. 277 Trickey v. Clark, 50 Or. 516, 93 Pac. 457. 278 Pilmer v. Boise Tr. Co., 14 Idaho, 327, 125 Am. St. Rep. 161, 94 Pac. 432, 15 L. R. A. (N. S.) 254; Sherman v. Hicks (N. Mex.), 94 Pac. 959; Cockrell v. Schmitt, 20 Okla. 207, 94 Pac. 521; Cole v. Missouri etc. Ry. Co., 20 Okla. 227, 94 Pac 540. 279 Pereira v. Star Sand Co. (Or.), 94 Pac. 835. 280 People v. Roberts, 6 Cal. 217. 281 People v. Honshell, 10 Cal. 87; People v. Byrnes, 30 Cal. 206; Thompson v. Lee, 8 Cal. 275; People v. Hurley, 8 Cal. 390. 282 Wikstrom v. Preston Mills Co., 48 Wash. 164, 93 Pac. 213. 283 Conlin v. San Francisco etc. R. R. Co., 36 Cal. 404; People v. Byrnes, 30 Cal. 206; Capuro v. Builders' Ins. Co., 39 Cal. 123; People v. Turley, 50 Cal. 469. 284 People v. Sanchez, 24 Cal. 28. See Hunt v. Elliott, 77 Cal. 588, 20 Pac. 132; Renton v. Monnier, 77 Cal. 449, 19 Pac. 820. 285 Chicago etc. Ry. Co. v. Alexander, 47 Wash. 131, 91 Pac. 926. quired on the part of plaintiff.286 When certain allegations of fact in the complaint are admitted in the answer, an instruction by the court to the jury that the admitted facts will be taken by them as true, and that they will so find for plaintiff, is not an instruction to the jury to find a verdict in favor of the plaintiff, except as to the facts so admitted.287 It is not error for the judge, in stating the testimony of the jury, to read a memorandum of testimony taken by another person, instead of using his own minutes or making the statement from recollection.288 stating the testimony, the safer course is to recite the language of the witness; but if the substance only is stated correctly, it is not error.289 Whether an instruction giving the general rule without qualification be proper or not, depends on the facts in proof, and the charge will be right or wrong according to the circumstances of the given case.200 In § 1237. Form and sufficiency of instructions-Generally.— The trial court may exercise a sound discretion as to the form and style in which instructions shall be given to the jury. It is not error for the court to omit numbering the instructions, unless requested to do so.291 It may either give instructions in the form submitted by counsel, or may consider such requests as expressing the views of the respective parties, and use them in preparing a connected and harmonious charge to the jury, the latter being the preferable practice.292 It is, however, held that when counsel propose a proper charge, if given at all by the court, it ought to be given to the jury in the form submitted.203 Voluminous instructions, in ordinary cases, are condemned as bad practice, especially where a few plain and simple propositions of law applicable to the facts will suffice.294 If instructions, in general 286 Kuhland v. Sedgwick, 17 Cal. 123. 287 Blood v. Light, 31 Cal. 115. 288 People v. Boggs, 20 Cal. 432. 289 People v. Doyell, 48 Cal. 91. See, also, on this subject, People v. Dick, 34 Cal. 663; Pico v. Stevens, 18 Cal. 377. 290 People v. Arnold, 15 Cal. 482. 291 McIver v. Williamson etc. Co., 19 Okla. 454, 92 Pac. 170, 13 L. R. A. (N. S.) 696. 292 Morrison v. McAtee, 23 Or. 530, 32 Pac. 400; Knathla v. Oregon etc. Ry. Co., 21 Or. 137, 27 Pac. 91; Conlon v. Oregon etc. Ry. Co., 23 Or. 499, 32 Pac. 397. See Reddon v. Union Pacific Ry. Co., 5 Utah, 344, 15 Pac. 262; People v. Chadwick, 7 Utah, 134, 25 Pac. 737. 293 Gottstein v. Seattle Lumber Co., 7 Wash. 424, 35 Pac. 133. 294 Weeklund v. Southern Oregon Co., 20 Or. 591, 27 Pac. 260; Anderson v. North Pacific Lumber Co., 21 Or. 288, 28 Pac. 5. See Marsh v. Cramer, 16 Colo. 331, 26 Pac. 554; Sutton v. Dana, 15 Or. 98, 25 Pac. 90; terms, state the law correctly, but a party desires more specific instructions, he should ask the court to instruct the jury specifically upon the point.295 Instructions are required to state only so much of the law as may be applicable and essential to the issues and facts of the case on trial. To this extent the charge must be correct and explicit, but if unexceptionable in these essentials it will not be ground for reversal that the instructions are not strictly correct as universal propositions of law.29 And inaccuracy of an instruction in stating the grounds of a rule of law is harmless, if it state the rule correctly in its substance.297 An instruction should not be given upon a point not in dispute.298. It should not direct the attention of the jury to a fact not in issue, and make the findings on that fact decisive against one of the parties.299 The court is not bound to instruct upon phrases of law or an hypothesis not involved in the case.300 An error in an instruction is not cured by the giving of a correct instruction,301 except where it states the law correctly, and its only error is in being insufficient, ambiguous, or uncertain. 302 An instruction upon an assumed fact, as to which there is no evidence, is erroneous; 303 and so where there is a substantial conflict in the evidence.304 Instructions should not be too general, nor should they be given in the abstract. And it is held that abstract propositions of law, not applicable to the facts of the case, are misleading Improvement Co. v. Stead, 95 U. S. 166, 24 L. Ed. 403; In re Keithley's Estate, 134 Cal. 9, 66 Pac. 5. 295 Griffiths v. Clift, 4 Utah, 462, 11 Pac. 609; Rice v. Whitmore, 74 Cal. 619, 5 Am. St. Rep. 479, 16 Pac. 501. 296 Denver etc. R. R. Co. v. Conway, 8 Colo. 1, 54 Am. Rep. 537, 5 Pac. 142; Curr v. Hundley, 3 Colo. App. 54, 31 Pac. 939. 297 Hill v. Finigan, 77 Cal. 267, Am. St. Rep. 279, 19 Pac. 494. 11 298 De Baker v. Southern Cal. Ry. Co., 106 Cal. 257, 46 Am. St. Rep 237, 39 Pac. 610. 299 Marx v. Schwartz, 14 Or. 177, 12 Pac. 253. 300 Stevens v. San Francisco etc. R. R. Co., 100 Cal. 554, 35 Pac. 165; Shattuck v. Smith, 5 Or. 125; Central Pacific Ry. v. Feldman, 152 Cal. 303, 92 Pac. 849. 301 Fogarty v. Southern Pacific Co., 151 Cal. 785, 91 Pac. 650. 302 Stratton etc. Co. v. Ellison, 42 Colo. 498, 94 Pac. 33; Hotchkiss etc. Co. v. Bruner, 42 Colo. 305, 94 Pac. 331. 303 Glenn v. Savage, 14 Or. 567, 13 Pac. 442; Bowen v. Clarke, 22 Or. 568, 29 Am. St. Rep. 626, 30 Pac. 430; Patrick etc. Co. v. Skoman, 1 Colo. App. 323, 29 Pac. 21. See Frost v. Ainslie Lumber Co., 3 Wash. 241, 28 Pac. 354, 915; Kelley v. Cable Co., 7 Mont. 70, 14 Pac. 633; Meyer v. Black, 4 N. Mex. 190 (352), 16 Pac. 620; Chicago etc. Ry. Co. v. Ferguson, 3 Colo. App. 414, 33 Pac. 684. 304 Llewellyn Steam etc. Co. v. Malter, 76 Cal. 242, 18 Pac. 271. and mischievous, and to present such in an instruction to a jury is reversible error. 305 But when correct abstract propositions of law are given, and the instructions, considered together, advise the jury clearly and in the concrete, the abstract propositions do not necessarily vitiate the charge.308 If an instruction is hypothetical and pertinent, it is no ground of objection that a different theory may also find support in the evidence.307 Instructions assuming the existence of facts not controverted are proper. 308 It is error to give to the jury inconsistent and contradictory instructions, and where instructions on a material point are contradictory the judgment will be reversed.309 But unless a party is prejudiced, or the jury is misled by apparently conflicting instructions, there is no ground for reversal.310 An instruction should contain a principle of law applicable to the case, expressed in plain language, indicating no opinion of the court as to any fact in the case, and if it be argumentative in its character, it is properly refused.311 An instruction should be free from ambiguity, and it is error to give misleading instructions.312 But the giving of incomplete and ambiguous instructions is not error, unless the court has been requested to make its instructions more full and complete, and has refused.313 The misuse of the word "testimony" instead of the word "evidence," in an instruction upon the subject of the preponderance of evidence, is not such an error as would probably mislead the jury.314 It is not 305 Pearson v. Dryden, 28 Or. 350, 43 Pac. 166; Coos Bay R. R. Co. v. Siglin, 26 Or. 393, 38 Pac. 192; Hislop v. Moldenhauer, 23 Or. 119, 31 Pac. 252; Bowen v. Clarke, 22 Or. 566, 29 Am. St. Rep. 625, 30 Pac. 430. Compare Comptoir etc. v. Dresbach, 78 Cal. 15, 20 Pac. 28; Marriner v. Dennison, 78 Cal. 202, 20 Pac. 386; People v. Devine, 95 Cal. 227, 30 Pac. 378; Deep Mining Co. v. Fitzgerald, 21 Colo. 533, 43 Pac. 210; Johnson v. Fraser, 2 Idaho, 404, 18 Pac. 48. 306 Denver Tramway Co. v. Owens, 20 Colo. 107, 36 Pac. 848. 307 Wistrom v. Redlick Bros., 6 Cal. App. 671, 92 Pac. 1048. 308 Hogan v. Shuart, 11 Mont. 498, 28 Pac. 969. See People v. Phillips, 70 Cal. 61, 11 Pac. 493. 309 Haight v. Vallet, 89 Cal. 245, 23 Am. St. Rep. 465, 26 Pac. 897. See Harrison v. Water Co., 65 Cal. 376, 4 Pac. 381; Sappenfield v. Main St. etc. R. R. Co., 91 Cal. 48, 27 Pac. 590; Morrison v. McAtee, 23 Or. 530, 32 Pac. 400; Davis v. Railroad Co., 53 Ark. 117, 13 S. W. 801, 7 L. R. A. 283; Lufkins v. Collins, 2 Idaho, 150 (135), 7 Pac. 95; Vallens v. Tillman, 103 Cal. 187, 37 Pac. 213. 310 Witherby v. Thomas, 55 Cal. 9. See Kelley v. Cable Co., 7 Mont. 70, 14 Pac. 633. 311 Morris v. Lachman, 68 Cal. 109, 8 Pac. 799; People v. McNamara, 94 Cal. 509, 29 Pac. 953. 312 Boucher v. Mulverhill, 1 Mont. 306; Huntoon v. Lloyd, 7 Mont. 365, 16 Pac. 573. 318 Box v. Kelso, 5 Wash. 360, 31 Pac. 973; McQuillan v. Seattle, 13 Wash. 600, 43 Pac. 893. 314 Mann v. Higgins, 83 Cal. 66, 23 error for the trial court, in charging the jury, to quote from decisions of courts in other cases, if the quotations correctly state the law.315 But trial courts should not instruct juries by reading to them an opinion of another court. If they desire to adopt such an opinion as the law of the case, they should copy from it and deliver the portions applicable.810 317 § 1237a. Instructions in writing. Where the statute requires instructions to be given in writing, the oral charge taken down by the stenographer, extended by him, and, as so extended, handed to the jury upon their retirement, does not constitute a compliance with the statute.3 But where a party sits by and hears the trial judge give the jury parol instructions, and fails to object thereto at the time and upon that ground, he is conclusively presumed to have waived the error.318 And when there is nothing in the record and no evidence aliunde to show that the court instructed the jury orally instead of in writing, as required by the statute, the presumption is in favor of the court's observance of the law.319 The statute providing that modifications of instructions asked must not be by interlineation or erasure is merely directory, and an erasure not prejudicial to the party objecting thereto is not ground for reversal.320 In Montana, it is error for a judge of the district court to give oral instructions.320 The practice of orally requesting the court to charge propositions of law. is disapproved in Utah. Counsel should be required to conform to the statutes, and present their instructions in writing.321 The object in requiring prayers for instructions to be numbered and signed is not for the information or guidance of the jury, but for the convenience of the court and the protection of the parties Pac. 206. See O'Callaghan v. Bode, 84 Cal. 489, 24 Pac. 269. 315 Estate of Spencer, 96 Cal. 448, 31 Pac. 453. 316 Stewart v. Hunter, 16 Or. 62, 8 Am. St. Rep. 267, 16 Pac. 876. See Cousins v. Partridge, 79 Cal. 224, 21 Pac. 745; People v. McNabb, 79 Cal. 419, 21 Pac. 843. As to reading section of code to jury, see People v. Burns, 63 Cal. 614. As to reading extracts from pleadings to jury, see Cook v. Merritt, 15 Colo. 212, 25 Pac. 176. 317 Brown v. Crawford, 2 Colo. App. 235, 29 Pac. 1137; affirmed, 21 318 Boss v. Northern Pac. Ry. Co., 2 N. Dak. 128, 33 Am. St. Rep. 756, 49 N. W. 655. 319 Kent v. Favor, 3 N. Mex. 218 (347), 5 Pac. 470. 320 Denver etc. R. R. Co. v. Harris, 3 N. Mex. 109 (114), 2 Pac. 369. 320a Marden v. Wheelock, 1 Mont. 49. 321 People v. Miller, 4 Utah, 410, 11 Pac. 514. |