Harrington v. Harrington

107 Mass. 329 | Mass. | 1871

Morton, J.

The statute provides that “ the courts shall not charge juries with respect to matters of fact, but may state the testimony and the law.” Gen. Sts. a. 115, § 5.

In Commonwealth v. Barry, 9 Allen, 276, the court held, after careful consideration of the construction of this statute, that it prohibited the judge from expressing his opinion as to the credibility of the witnesses examined in the case. In the opinion of the court, Chief Justice Bigelow says: “The prohibition must be regarded as a restraint only on the expression of an opinion by the court on the question whether a particular fact or series of facts involved in the issue of a case is or is not established by the evidence. In other words, it is to be construed so as to prevent courts from interfering with the province of juries by any statement of their own judgment or conclusion upon matters of fact. This construction effectually accomplishes the great object of guarding against any bias or undue influence which might be created in the minds of jurors, if the weight of the opinion of the court should be permitted to be thrown into the scale, in deciding upon issues of fact. But further than this the legislature did not intend to go. The statute was not designed to deprive the court of all power to deal with the facts proved. On the contrary, the last clause of the section very clearly contemplates that the duty of the court may not he fully discharged by a mere statement of the law. By providing that the court may also state the testimony, the manifest purpose of the legislature was to recognize and affirm the power and authority of the court, to be exercised according to its discretion, to sum up the evidence, to state its legal effect and bearing on the issues, and to indicate its proper application under the rules of law.”

In Commonwealth v. Larrabee, 99 Mass. 413, it was held that this statute, while it restrains the judge from expressing an opinion upon the credibility of particular witnesses, does not preclude him from defining the degree of weight which the law attaches to a whole class of testimony, suc¿h as the testimony of accomplices, leaving it to the jury to apply the general rule to the circumstances of the case. Similar principles are held in Durant v. Burt, 98 Mass. 161, and Oakman v. Boyce, 100 Mass. 477.

Critically examining the charge in the case at bar, in the light of the principles established by these cases, we are unable to see that it is open to the objection that the court charged in respect to matters of fact. The report of the charge, in the bill of exceptions, is manifestly defective, especially in the punctuation. But there is no difficulty in ascertaining from the context what the meaning of the presiding judge was. If we were to adopt the views of the libellee’s counsel, and construe the charge as stating, as a rule of law, that a person charged with adultery would swear he was not guilty, it would be liable to exception. But such clearly was not the meaning of the judge. He was stating the reasons used against the admissibility of two classes of testimony, namely, that of parties to the suit, and that of persons accused of crime; and was not laying down a rule of law or indicating his own opinion. The manifest design and effect were, to call the attention of the jury to the peculiar circumstances under which these two classes of witnesses always testified, leaving them to apply the general rule to the case before them. The suggestions as to the testimony of parties to the suit applied as strongly to the libellant as to the libellee. It was the duty of the jury to keep constantly in their minds the peculiar circumstances under which witnesses of these classes always testified. Unless they did so, they could not intelligently weigh the testimony in the case. We do not think that the judge exceeded his duty, in calling their attention to these considerations, and instructing them that the testimony should be weighed with care, in view of these suggestions. He intimated no opinion as to the credibility of any of the witnesses in this case. On the contrary, he expressly cautioned the jury, that the questions of fact and the credit due to witnesses were solely for them; that the court intended to express no opinion in regard to them; and that they had no right to infer, from anything which might fall from the judge, what his own opinion was upon the facts. We do not think that this was a charge in respect to matters of fact, within the statute.

The other exceptions taken at the trial cannot be sustained. The refusal of the court to order further specifications is not the subject of exceptions. In all cases, civil and criminal, the question whether bills of particulars or specifications shall be ordered is within the discretion of the presiding judge. Commonwealth v. Giles, 1 Gray, 466. Commonwealth v. Wood, 4 Gray, 11. Gardner v. Gardner, 2 Gray, 434.

The allowance of the amendment, without terms, was also a matter within the discretion of the presiding judge. The fourth rule of the court for the regulation of practice at common law does not apply to a suit for a divorce.

.Exceptions overruled.