82 Miss. 462 | Miss. | 1903
delivered the opinion of the court.
In respect to the right and duty of the court to give further instructions to the jury after they have retired, the principle is stated to be this in 2 Enc. PI. & Prac., 283-285, inclusive: That the court may give the jury any instruction necessary to the accomplishment of justice in the case, at any time before the-verdict is received, of its own motion; and,, secondly, upon request of the jury; and, thirdly, that where the jury requests further instructions it is “not only the right, but the duty, of the court to reinstruct upon any question of law, arising from the facts proven, on which they say they are in doubt”; and, further, “that this practice is to be commended, since its results tend to a correct and rapid administration of justice”; and, lastly, it is there stated that by the weight of authority it is held that, although the court may have given further instructions at the request of the jury, it should also give additional instructions, by way of éxplanation or modification, if requested by one of the parties. In note 1 on page 283 of said volume the rule in Mississippi is set out. The cases of Duncan v. State, 49 Miss., 331; Taylor v. Manley, 6 Smed. & M., 305, and Randolph v. Govan, 14 Smed. & M., 9, are referred to. In Duncan’s Case no request for instructions was made by either party, written or oral. In Taylor v. Manley, the court had adjourned for the day, and the judge, in the absence of both parties, and without their consent, at the request of the jury, gave them a charge. Under our practice, this was error, of course. In the case of Randolph v. Govan, there was no request by either party, but a request again by the jury. In our state, under Code 1892, section 132, the judge can only instruct the jury upon the principles of law applicable to the case at the request, in writing, of either party. Applying the principles which we have cited from the Encyclopaedia of Pleading & Practice, the law in this state, under our practice, is that it is not only the right, but the duty, of the court, where the ends of
Reversed cmd remanded.