75 Miss. 660 | Miss. | 1898
delivered the opinion of the court.
The third instruction given for the plaintiff below is erroneous. It is clearly a charge upon the weight of that evidence which was offered by the defendant, to the effect that the administrator knew nothing of the possession by his intestate of the thousand dollars sued for, and was unable to give any account of it, or to show what disposition his intestate made of it. Practically, the jury was informed by this charge that these facts, under the circumstances of the case, were without any value. These facts should have been submitted to the jury for their consideration, and should have received from the jury such weight as the jury thought them entitled to, without any intimation from the court that they were valueless. The instruction should have informed the jury that it did not necessarily or conclusively follow from these facts that Kent did not get the money sued for. The instruction is, moreover, objectionable in seeming to assume, in its beginning, that the thousand dollars had been gotten. It is true the instruction concludes
The fifth instruction of the plaintiff below was a charge upon the weight of the evidence, and was error. The evidence of experts is neither intrinsically weak nor intrinsically strong. Its strength, or its weakness, depends upon the character, the capacity, the skill, the opportunities for observation, the state of mind of the expert himself, and on the nature of the case, and all its developed facts. Like any other evidence, it may be entitled to great weight with the jury, or it may be entitled to little; but of its weight and worth the jury must judge without any influencing instruction, either weakening or strengthening, from the court.
Now, the defendant’s plea of non est factum was, of necessity, largely and chiefly supported by the evidence of expert witnesses in handwriting, and this charge upon the weight of the evidence of these important witnesses so weakened and neutralized its force and effect with the jury as to make it capable of disastrous consequences to the defendant. See Railway Co. v. Whitehead, 71 Miss., 451, which is directly in point, and the cases there cited.
The sixth instruction given for plaintiff below was incorrect. By its terms the jury may have thought itself authorized to pronounce the disputed signature to the note sued on genuine, if the jury, from a comparison of this signature with other proved genuine signatures of the intestate, thought the disputed signature similar to the proved genuine ones. That is exactly what the instruction says, as we think, after repeated examinations of it. Moreover, the charge seemingly authorizes the jury to disregard all the expert evidence, if the jury, composed of men presumably not experts in handwriting, thought, from their own comparisons, that the signature to the note sued on was similar to the admittedly genuine ones, though all the experts thought it not genuine, and gave their reasons for so thinking. It was well calculated to induce in the mind of the
Reversed.
