13 S.D. 618 | S.D. | 1900
The decision in this case, now before us on petition for a rehearing, is published in 13 S. D. 550, 83 N. W., at page 588, where all questions of law presented by the appeal are determined without fully stating the facts relating to the point measurably relied upon in this application, and counsel seems apprehensive that we failed to give the matter merited attention. The contention is. that the trial court, without the consent of appellants, materially changed their third proposed instruction, and in such form gave it to the jury as
From the foregoing it appears that the law expressed in the phrasing and writing of the judge on a separate piece of paper constitutes an additional instruction coming from the court, and as such given to the jury on its own motion. All' this, considered with every favorable inference that the facts and circumstances justify, together with the act of pinning the paper upon which such instruction was written to that containing appellants’ requests marked “Given,” and the delivery of the same to the jury in that condition, do not in any particular present a question like that which invoked the doctrine applied in the case of Peart v. Railway Co., supra, and the facts are most perceptibly self distinguishing. Here the'court wrote an additional instruction on a detached sheet of paper, and presented it to the jury on its own motion, and in a manner that negatives the assertion and repels the conception that it was given at the request of or as coming from appellants; while in the Peart case an instruction fatally at variance with the theory of the defendant was prefaced byAhe following statement made to the jury by the court: “Defendant requests me to say to you that you should be governed by the following rule of law.” Thus says the court in disposing of that case: “He told them he had been requested to make a certain statement for and on behalf of defendant regarding one of the material issues in the case, when in truth and fact he had not been requested to make any such statement at all.” Our conclusion still is that no instruction requested by appellants was by the court modified; neither was a syllable pronounced to the jury, or contained in