4 Ind. App. 501 | Ind. Ct. App. | 1892
One of the reasons assigned in the motion for a new trial and argued by counsel for appellant
The appellant assails instruction numbered 4, given by the court of its own motion. In it the court told the jury : “You may also consider the position of the account as shown in that book and the manner of placing it as you see it on the book, which you have a right to take with you and consider.”
There is nothing wrong with the instruction, so far as it tells the jury that they might consider “ the position of the account,” etc. The account, as contained in the appellee’s pass-book, was placed in evidence, and we know of no reason why the jury could not consider it and the peculiar position the account occupied. The court did not instruct the jury what weight they should give this account or whether they should give it any weight. They were simply told that they had. a right to “ consider” it, and we do not see upon what principle of law they were precluded from so doing.
The last portion of the instruction told the jury that they had a right to take the account with them. The appellant claims that this was error, and cites Nichols v. State, ex rel., 65 Ind. 512. It is not shown, however, by the bill of exceptions that the jury actually took this item of evidence with them to their room, and hence no harm is shown to have resulted from the instruction, even if wrong, as to which we decide nothing. Everything must be presumed in favor of the correctness of the court’s action until the contrary is made to appear. There was no available error here.
The next alleged error is the refusal of the court to permit the appellant to read in evidence ledgers “D” and “ E,” containing appellee’s bank account. The book was one which was kept by the officers of the bank, and with which the appellee had nothing whatever to do. It was not shown when the entries in these ledgers were made, but they would not be proper evidence even if made at the time of the transaction. Pittsburgh, etc., R. R. Co. v. Noel, 77 Ind. 110. The exclusion of this evidence was right.
These are all the questions discussed.
The judgment is affirmed.
Crumpacker, J., was absent.