Burke v. Maxwell's Administrators
81 Pa. 139
Pa.
1876
Check Treatment
Mr. Justice Paxson

delivered the opinion of the court,

' The right of a judge to express an opinion upon the evidence has been recognised in a number of cases. In Dittmars v. Commonwealth, 11 Wright 335, it was said by Thompson, J.: “ It is not error upon the part of the court to express an opinion merely upon the facts of the case, if they are properly referred to the jury. It is often very proper to do so. It aids the jury and subserves the ends of justice. Care must always be taken, however, not to infringe the province of the jury, so as to relieve them from the full responsibility of pronouncing an intelligent judgment upon them for themselves.” The judge has a right to aid the jury by an expression of his opinion upon the effect of the evidence, but not so as to mislead them, or control their deliberations: Mohney v. Evans, 1 P. F. Smith 84; and it must be done in such a manner as not to be one-sided or unfair: Ralston v. Groff, 5 P. F. Smith 276. The learned judge who tried this case in the court below went far beyond any recognised rule in his discussion of the evidence. It may very well be that he regarded it as a case which, to some extent, justified him in influencing the jury. But even if such were his view, he went too far. There can hardly be a doubt but that his charge controlled 'the jury. It is true that near its close he told them that they were not bound by his views, and might *153disregard them, yet' almost in the same breath he informed them that if he were in the. jury-box he would find against the plaintiff. This, taken into consideration with the whole tone and tenor of the charge, bore so heavily upon the plaintiff as to leave him scarcely a chance; it was practically controlling the verdict. When there is sufficient evidence upon a given point to go to the jury, it is the duty of the judge to submit it calmly and impartially. And if the expression of an opinion upon such evidence becomes a matter of duty under the circumstances of the particular case, great care should be exercised that such expression should be so given as not to mislead, and especially that it should not be one-sided. The evidence, if stated at all, should be stated accurately, as well that which makes in favor of a party as that which makes against him; deductions and theories not warranted by the evidence should be studiously avoided ; they can hardly fail to mislead the jury and work injustice. Tested by the principles I have indicated there was error in the portions of the charge referred to in the first, fourth, fifth, sixth, seventh, eighth, ninth and tenth assignments. We have no doubt the learned judge intended to do exact justice, but he unwittingly stepped over the line. So far from the charge being a calm, impartial presentation of the evidence, some portions of it, at least, went far beyond the evidence; deductions and theories are drawn, which, if not wholly unsupported, should have been left for the jury. I have looked in vain through the testimony for anything to justify such expressions as these: “Again, we may naturally assume that he knew well of these transactions with Maxwell, and was a helper with him. * * * You may assume that he made considerable efforts to induce them to subscribe to 2250 shares. * * * We may naturally suspect he was paid in oil stock, and would have taken his chances, whether this stock would be worth $7 per share.” And again : “Burke admits, as to the guaranty part of it, this paper is a sham.” Mr. Burke was not examined, and the record utterly fails to disclose any such admission. It is needless to particularize further; similar errors run all through the charge.

There was also error in the instruction contained in the third assignment. It was not essential for the plaintiff to prove that ho had $54000 to put in .this stock. It was no part of his case. He may have purchased it without the money ; a large proportion of the business transactions of the world are based upon credit. The validity of a contract does not depend as a matter of law upon a cash consideration.

We perceive no error in the remaining assignments.-

Judgment reversed, and venire facias de novo awarded.