47 S.C. 488 | S.C. | 1896
The opinion of the Court was delivered by
in place of Associate Justice Gary. This action for claim and delivery was brought by Jane Estelle Clinkscales to recover from the defendants certain personal propert}' covered by a mortgage, of which she was the assignee. After the commencement of the suit the plaintiff died, and her father, and executor, E. B. Norris, was substituted as plaintiff. The cause was heard at Abbeville, at the January term, 1896, before his Honor, Judge Earle, and a jury, and resulted in a verdict for the plaintiff.
The defendants appeal to this Court from the rulings and charge of the Circuit Judge, and from the verdict of the jury, upon various grounds, which are set forth in the “Case” in the form of ten exceptions.
The conclusions arrived at by this Court render it unnecessary to pass upon more than five of the exceptions, and these we shall take up and consider in order. The appellants’ second exception alleges error, “Because the Circuit judge erred in excluding the testimony of T. L. Clinkscales, jr., under sec. 400 of the Code, when (1) that section of the Code had no application at all; and (2) even if it had been applicable, the door was opened by Mrs. Estelle Clinkscales in her testimony, and the witness had the right under the said section to give his version of the transaction in reply to her.” On the threshold of the main question, involved in this exception, the respondent’s counsel make the objection that the testimony was excluded, not under sec. 400, but because it was contrary to the assignment the witness, T. L. Clinkscales, had made on the mortgage. In support of this view, the “Case” does certainly show that the testimony was objected to by respondent’s counsel, “on the ground that
The four classes of persons are these: 1. A party to the action or proceeding. 2. A person having an interest which may be affected by the event of the trial. 3. A person who has had such an interest, but which has been in any manner transferred to, or has in any manner come to, a party to the action or proceeding. 4. An assignor of a thing in controversy in the action.
The three characteristics of the testimony are these: a. In regard to any transaction or communication between the witness and a person deceased, insane or lunatic, b. Against a party prosecuting or defending the action as executor, administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of such deceased person, or as assignee or committee of such insane person or lunatic, c. When the present or previous interest of the witness may in any manner be affected by the testimony or by the event of the trial.
It will be thus seen that to justify the exclusion of testimon}^ under this proviso of section 400, it should be shown to the satisfaction of the trial Judge, first, that the witness belongs to one or more or to all of the four classes of persons whose testimony may under certain circumstances be excluded; and, secondly, that his testimony partakes of not merely one or two of the disqualifying characteristics classified under «, b, and c, but that it possesses all three of those characteristics. To illustrate: A witness may belong to all four of the classes of persons described under 1, 2, 3, and 4, and his testimony may fall under the divisions a and b, but
The third exception charges error in the Circuit Judge, “In refusing to allow secondary evidence as to the contents of the receipt signed by Estelle Clinkscales, in which she elected to take under the will of her husband, J. P. Clink-scales, and to give up all claim to the property covered by the mortgages in question, when there was sufficient proof going to show that said receipt had been lost or destroyed by fire.” Judicial discretion in some of its aspects being a mixed question of law and fact, it is proper to set forth the facts disclosed by the record upon which this exception is based. One of the defendants, A. J. Clinkscales, testified that he turned over to Jane Pistelle Clinkscales the things that were left to her in the will, and took her receipt for the things as executor. Upon objection of plaintiff’s counsel, the Court ruled that the witness could not go into the contents of the receipt without showing that it was lost and could not be produced. The witness thereupon testified that the receipt was written at Mr. Norris’, in Estelle’s presence, and that she signed it; that he did not have the receipt; that he left it with Mr. Frank B. Gary, one of the counsel for defendants; that he had not seen the receipt since; that they employed Mr. Murray, of Anderson, to assist in the case, and that the papers were sent to him; that Mr. Gary and he (the witness) searched for the papers in Mr.
This exception raises two questions: First. Is the exercise of judicial discretion, in regard to the admission or exclusion of secondary evidence, appealable matter to be reviewed by this Court? And second. If appealable and reviewable, did the Circuit Judge, in the case at bar, commit error of law in excluding the secondary evidence offered?
Constitution of 1868.
Art. IV. Sec. 26. “Judges shall not charge juries in respect to matters of fact, but may state the testimony and declare the law."
Constitution of 1895.
Art. IV. Sec. 26. “Judges shall not charge juries in respect to matters of fact, but shall declare the law."
Following the example of other' States, and, indeed, adopting the very words of some of the other State Constitutions, our Constitution of 1868 provided (art. IV., sec. 26,) that “Judges shall not charge in respect to matters of fact, but may state the testimony and declare the law.” This provision superceded the common law in this regard. It took away from the Circuit Judge the right he formerly had — in the language of the cases just cited — “to advise the jury on the facts;” or “to instruct the jury on the facts;” or to “direct the attention of the jury to the relevancy and sufficiency of the evidence;” or to “intimate how he thought himself;” or “to aid the jury in forming an opinion on the evidence,” by “giving his opinion on the facts;” or “in the examination of questions of complicated facts, to give the jury the aid of his discrimination, experience, and judgment.” Very soon appeals came up from the courts below, charging violations of this constitutional provision; and they continued to come until section 26 had been interpreted and construed nearly sixty times by this Court. Its object, meaning, and scope have repeatedly been declared in clear and unequivocal terms. For example, in the first case in order of time, Redding v. Railroad Co., 5 S. C., 69, Mr. Justice Willard said: “Considering together the parts of this section, it is quite clear that its sole intention was to prevent judges from forcing upon the juries their own convictions as it regards matters of fact. The juries are the judges of such matters, and cannot properly look to the Court for a con
With reference to the second part of section 26, “but may
It stands to reason that nothing has been taken from them, with regard to the testimony, except the right “to state the testimony” in their charges. Thus it would still be competent for the Judge to tell the jury in his charge, in a proper case, that there was no evidence bearing on a certain issue, if there was none. This Court has held that such a ruling is strictly a matter of law, and not in conflict with the constitutional section in question. See Redding v. Railroad Co., 5 S. C., 70; Williams, Black & Co. v. Connor, 14 S. C., 621; Lynn v. Thomson, 17 S. C., 137; State v. Summers, 19 S. C., 94; State v. Nance, 25 S. C., 172-3; State v. Norton, 28 S. C., 579. On the other hand, it would still be error to charge there was no proof, if there was any evidence at all on the point. Fripp v. Williams, Bernie & Co., 14 S. C., 510; Carrier v. Hague, 9 S. C., 457. It would seem, also, that a Judge would not be violating the constitutional inhibition if he, in his charge, repeated the testimony as to undisputed facts or admitted facts, or stated their legal effect, or pointed out the different conclusions which might be drawn from them, or the inquiries they would
' It has also been well settled by the decisions of this Court, that art. IV., sec. 26, was not violated when a Judge, in his charge to the jury, based his declaration of the law upon a hypothetical statement of facts. By so doing he was neither charging in respect to matters of fact, nor commenting on the testimony, nor stating the testimony. In Carroll v. Express Co., 37 S. C., 455 (Mr. Justice Pope), the Court said: “The Circuit Judge refused to make this charge” — a request to charge — “because he would thereby express his
We must not overlook the important fact that, in addition td taking away the right to “state the testimony,” the new section 26 has changed the permission,1 “may * * * declare the law,” into the mandate, “shall declare the law.” Since the Constitution now requires the trial Judge to declare the law, the question arises, what law shall he declare? In a homicide case, for example, shall he give'the jury a complete discourse on the law of murder, manslaughter, homicide se defendendo, homicide per inforttmidm, &c.; or, in a case of trespass to try title, shall he endeavor to aid the jury by an exhaustive survey of the whole1 realm of the law of real estate? To ask the question is to answer it. Such a charge would leave the law of the particular case in nubibits. Clearly the Judge can be required to declare only so much of the law as is applicable to the-case on trial; and what that law shall be, can be shown by the testimony alone. As was well said by Mr. Justice McGowan, in Benedict v. Rose, 16 S. C., 630: “The Judge is required to-announce the law, but that cannot be done properly until the facts are established. He cannot be expected in every case to announce all the law, but only so much of it as is applicable to the case made by the facts. It is, therefore, absolutely necessary for him, in discharging his parbof the duty, not only to understand, but to make reference1 to the facts, which must constitute the basis of the law he-announces. Accordingly, the Constitution declares that he hás the right to state the testimony and declare the law.” That right has been taken away by the amendment to section 26, as we have seen; but it is as “absolutely necessary” as ever, that the Judge should-have something to constitute the basis of the law he declares, more necessary, if possible, now that he must declare the law. He can no longer bottom his law upon direct references to the testimony, but he may bottom it upon a supposed state of facts. Mr. Chief Justice Simpson was equally strong in delivering the 'opinion of
At the same time, we cannot presume that it was the intention of the framers of the new Constitution (many of
We, therefore, conclude and hold that, as it would be impossible to declare the law applicable to a case on trial without connecting the legal principles involved with some state of facts, actual or hypothetical, it was the intention of the framers of the new Constitution, in amending sec. 26, art. IV., that the trial Judge in charging the law of the case should lay before the jury that law as applicable to a supposed state of facts; but that in so doing he should carefully avoid repeating the evidence on the facts at issue, making no statement of the testimony, either in whole or in part. We are clearly of the opinion that under section 26, as it now reads, a Judge may, in declaring the law applicable to the case, base that law upon hypothetical findings of fact "by the jury, and instruct the jury that, if they believe so and so from the evidence they have heard, then such and such will be the legal result. In so doing, if he be careful not to repeat any of the testimony, nor to intimate, directly ■or indirectly, what is in evidence, he will be chargeable neither with stating the testimony nor with charging in respect to matters of fact. The length to which our discussion of this question has grown will be excused, we trust, in consideration of the great importance of the subject, and the obvious necessity of determining, as clearly
We recur now to the charge of the Judge m the case at bar, excepted to by the appellants as in violation of section .26. It appears that he said to the jury: “So far as T. E. Clinlcscales is concerned, he assigned this mortgage to Mrs. Estelle Clinlcscales for value, as he says, and he is now in possession of this property, or a part of it; and, even if there was no proof as to what was due, T. L. Clinlcscales would be estopped; for, you observe, T. L. Clinlcscales -put Mrs. Estelle Clinlcscales in a position she would not have occupied but for the position he put her in. If this is so,” * * * “Did he undertake, for instance, to give her corn which had already been consumed? She can’t be said to elect between that corn and this property, because the corn was not there to take.” These remarks of the Judge were not uttered while-he was making a ruling during the progress of the trial, nor were they mere incidental remarks or observations let fall during the progress of the case; but they were made in his charge to the jury. Nor did they relate to undisputed or admitted facts, but to facts in issue between thé parties, and to be determined by the jury. Nor was the Judge submitting hypothetical findings of fact as a foundation for the law of the case; but his references to the testimony were direct, positive, and categorical. It is true, that one of the statements was followed by the phrase, “if this is so;” but the Judge had already stated what the testimony was, and had given his opinion of its effect; and we must think that the qualifying phrase came too late to cure the mischief and do away with the effect of the positive expression. (State v. White, 15 S. C., 393; State v. Smalls, 24 S. C., 591-2.) The portions of the charge under consideration amount to a “stating of the testimony” in part; and we have seen that the right “to state the testimony” has been taken from the trial Judge. They also embody an expression of the Judge’s opinion concerning the effect of the testimony referred to; and such
The sixth and eighth exceptions of the appellants are, therefore, sustained.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and a new trial granted.