94 A. 509 | N.H. | 1915
Whether cautionary instructions of a certain character shall be given necessarily rests very largely in the discretion of the trial court. The presiding judge is in a position to determine if the instructions seem to be required for the promotion of justice. He has an opportunity to observe and hear the parties and their witnesses, and is surrounded by the atmosphere of the trial, and is peculiarly qualified to decide what cautionary instructions are necessary. Birmingham etc. Co. v. Pulver,
All that we know about this cause is gained from reading the transferred case, which relates merely to the instructions to which exceptions are taken. We cannot say from our knowledge that the instructions were improper. The conduct and appearance of the parties and their witnesses, their demeanor and manner of testifying, and the testimony given, in reference to which this court is ignorant, but of which the trial court had full knowledge, may have rendered the instructions not only proper, but necessary for the due administration of justice.
The credibility of the witnesses is to be determined by the jury; but it is essential for the court to instruct the jury that in weighing the evidence and passing upon the credibility of the witnesses, they should consider their appearance, their interest or the want of it, their prejudice if any, the reasonableness of their testimony, etc. These are the ordinary instructions, but the character of the case or of the witnesses may be such that special cautionary instructions may be demanded. The attention of the jury may be called to anything disclosed in the trial of the cause that might affect the credibility of the parties or their witnesses. 2 Thomp. Trials (2d ed.), s. 2418; Foley v. Loughran,
Even if the giving of cautionary instructions were not very largely in the discretion of the trial court, it would not seem that the verdict in this case could be disturbed in consequence of the instructions given. The transferred case indicates that the plaintiff and his witnesses were French. On account of this, their apparent associations and environment, and perhaps by reason of their conduct and appearance upon the stand, the court gave the instructions to which exceptions are taken.
There is nothing in the instructions that deprives the plaintiff of his right to have the evidence weighed and the credibility of the witnesses determined by the jury. The court simply told them that in weighing the evidence they might consider the associations between the witnesses, their ties of race, or any other. They were not told to disbelieve or discredit the witnesses, or give the evidence less weight on account of their nationality. They were in fact explicitly told that they should not disbelieve a person because he spoke French, or was French, and that they should believe an honest French witness as soon as any other, and that they should not disbelieve a witness because he was of French descent. While the court gave such cautionary instructions to the jury as in his opinion the case demanded, to aid them in weighing the evidence, the jury must have understood from the instructions that they were to ascertain and decide what witnesses were honest and speaking the truth, and that no witness worthy of credit was to be discredited or disbelieved because of his nationality.
The plaintiff excepted because the court said to the jury, "but we all know that foreigners associating together do develop ties." In his brief the plaintiff especially complains of the use of the term "foreigners," and states that there was no evidence that any foreigner testified. There is nothing in the case to show whether all or any of the witnesses were foreigners. Whatever may be the fact as to this, it is not probable, in view of all the instructions given relating to this matter, that the plaintiff was prejudiced either by the use of the word "foreigners" or by the phrase containing it. The statement was evidently made to show the occasion for the instructions, and there is in the remark no intimation that foreigners are prone to perjure themselves for one another, as the plaintiff says. The only suggestion is that they develop ties in associating together. The word was not used in its literal sense, but as meaning *571
people of the same race. This was the sole purport of the instructions, and the jury, being presumed to be men of ordinary capacity (Cooper v. Railway,
Exceptions overruled.
All concurred.