95 Ind. 170 | Ind. | 1884
The evidence in this case, although taken by
Neither instructions nor instruments of evidence can bo brought into the record by merely making them part of the motion for a new trial. In the present case we must look to the bill of exceptions to see what requests to instruct were made, and what instructions, oral and written, were given by the court.
Th.e bill of exceptions contains this statement: “ The plaintiff and defendants also having at the proper time requested the court to instruct the jury in writing only, before the argument to the jury.” It is further shown by the bill that the court, at the time of reading the written instructions to the jury, orally instructed them upon the subject of nominal damages and as to the form of their verdict, and that the appellants at the time excepted “ because the same was oral and not in writing.”
Our statute provides that “ when the argument is concluded the court shall give general instructions to the jury, which shall be in writing and be numbered and signed by the judge, if required by either party.” The statute is in terms mandatory, and from the earliest to the latest cases it has been so construed. It has been uniformly held that the trial court, when properly requested, is bound to put all of its instructions in writing. In Townsend v. Doe, 8 Blackf. 328, decided in 1846, it was held that the statute was mandatory, and such was the holding in the cases of McClay v. State, 1 Ind. 385; Kenworthy v. Williams, 5 Ind. 375; Lung v. Deal, 16 Ind. 349. In the case of the Rising Sun, etc., Co. v. Conway, 7 Ind. 187, a like ruling was made and the court said : “ The evil to be remedied was the difficulty, severely felt by the bar, of getting a bill of exceptions which should fully em
It was well and strongly said, in a case from which we have already quoted, that “The words of the court, on such occasions, are too weighty and decisive in their influence on the jury to be omitted. A particular turn of expression, given perhaps at random, may be decisive of the rights of the parties. The proper construction of the statute therefore is, that the whole
A modification of an instruction is not a technical error, nor is the failure to fully incorporate into the instructions all that the court says to the jury a technical error. Some of the courts go so far as to hold that in criminal cases it is an error of such a substantial character as that it can not be waived. It was so held in State v. Cooper, 45 Mo. 64, and the court said: “ The provisions of the law are express and positive. They were enacted for wise and beneficial purposes, and neither courts nor parties are to be allowed to treat the law as naught, and construe it into a dead-letter, and substitute a different arrangement in its stead. * * * The jury are liable to misapprehend the language of the court; a full, perfect, and satisfactory bill of exceptions is unattainable; and thus a man’s rights are invaded and frittered away, through a violation of law which -was made for his protection. Public policy and the uniform and explicit standard -which should always prevail in the administration of criminal justice, demand that the statute should be literally construed and rigidly adhered to
A direction to the jury to reject evidence, as to the form of verdict, or the like, is not an instruction within the meaning of the statute. Stanley v. Sutherland, 54 Ind. 339; McCallister v. Mount, 73 Ind. 559; Lawler v. McPheeters, 73 Ind. 577; Trentman v. Wiley, 85 Ind. 33. But statements of rules of law governing the matters in issue or the amount of recovery are instructions, and all such rules or statements must, when the proper request is made, be given to the jury in writing. Judgment reversed.