33 Wis. 611 | Wis. | 1873
There was evidence tending to show that the logs received by the plaintiffs from the defendant were not received upon the contract, and that the plaintiffs did not accept them under it, but under a subsequent agreement made with the defendant. The plaintiff Ketchum testified very positively that this was so, and he was corroborated by the testimony of his coplaintiff, Hoxie. In view of that testimony, we think the court encroached upon the province of the jury in the remarks found in the instructions numbered four and five. In the fourth instruction, the judge said: “ There is some question now as to whether there were any logs accepted under the contract. I conclude that there cannot be much doubt that what logs were delivered and accepted by the plaintiffs, were received upon this contract.” And the language of the fifth instruction was still stronger, as amounting almost, if not quite, to a positive direction to the jury; for the court said that “if they [the plaintiffs] then received the logs,.it strikes me, they must be held, in the absence of any testimony to the contrary, as having received the logs under the contract, and that the contract price would govern them as a matter of course.” If this was not an explicit direction to find that the
It has been held that the expression of an opinion by the court as to the facts in a case, the weight of testimony, or the character of a witness, is not error, if the question upon which it is expressed is left for the determination of the jury. Fowler v. Colton, 1 Pin. Wis. B., 331, and authorities there cited. But for the court to decide a question of fact, or to charge the jury that a certain fact is proved, where there is any evidence to the contrary for the jury to consider, has been held to be error, as it most certainly is. Zonne v. Wiersom, 3 Chand., 240. In the latter case, the court say: “ It not being a question of law, but of fact, the point should have been decided by the jury, and not by the court. The rule is clearly established in civil cases, that the court must decide the law, and the jury the facts.” See also Hawkins v. Costigan, 21 Wis., 545; Saunderson v. Lace, 1 Chand., 231; Ford v. Smith, 27 Wis., 261; Hunkins v. Railway Co., 30 Wis., 559. And in criminal cases, the rule prevailing is still more stringent. It is there held to be error for the court to express any opinion to the jury as to the weight or sufficiency of the testimony upon any fairly controverted or debatable question of fact. Benedict v. The State, 14 Wis., 424; Hill v. The State, 17 id., 675. The practice varies in different courts and before different judges, some preferring to avoid the expression of such opinions as much as possible in all cases, as well civil as criminal, and so to leave the jury entirely free to determine the facts, unprejudiced by any views which may be entertained by the court respecting them. On the other hand, the opposite practice has been very highly commended by courts and judges whose opinions are entitled to the greatest attention and respect. “Iam far from wishing,” says Chancellor Kent, in Firemen Ins. Co. v. Walden, 12
Looking upon the instructions in question, which were duly excepted to by tbe plaintiffs, as we think they must have been looked upon by the jury, namely, as in the nature of positive directions to the jury upon a matter of fact, and as excluding them from finding the fact for themselves upon testimony which it was proper that they should consider, both for and against the directions, we must hold that the charge was erroneous, and that the judgment should be reversed and a new trial had in the action. In Read v. Hurd, 7 Wend., 408, the court expressed an opinion to the jury that evidence produced was sufficient to prove a particular fact in favor of the plaintiff, which was held to be error, and for which the judgment was reversed. The supreme court said : “ Admitting that the question was not absolutely taken from the jury by the court, still, their opinion, considered as an opinion upon the weight of evidence, was much stronger than it ought to have been, and was calculated to make an erroneous impression upon the minds of the jurors. The charge, 'therefore, was erroneous, and the judgment must be reversed on that ground.” And in Fitzgerald v. Alexander, 19 Wend., 402, where, upon a motion made to nonsuit, because the evidence was not sufficient, the court denied the motion, declaring the evidence sufficient, and with that direction left the cause to the jury, this was held equivalent to a positive direction to the jury, without leaving the facts open for them
By the Court — The judgment of the circuit court is reversed, and a venire de novo awarded.