84 P. 804 | Or. | 1906
delivered the opinion of the court.
“In charging the jury, the court shall state to them all naatters of law which it thinks necessary for their information in giving their verdict, but it shall not present the facts of the case, but shall inform the jury that they are the exclusive judges of all questions of fact”: B. & C. Comp. § 139.
It will not do to say that because the language complained of was addressed to defendant’s counsel, though, in the presence of the jury, that the expression was not. used in charging them and for that reason iLwas harmless. Any person who has carefully observed the attention which jurors give to what they consider to be the court’s predisposition towards or opposition to a party, knows that a judge’s smile or frown during the trial of a cause seems to influence their minds, thereby affecting their verdict. As spoken language is usually the better means of indicating prejudice or sympathy than facial expression, the former mode of revealing a mental condition is therefore the more prejudicial. Conceding that every comment made by a court in the presence of a jury, respecting the testimony given by a witness, is in the nature of an instruction (State v. Stowell, 60 Iowa, 535, 15 N. W. 417), the remark complained of will be examined to determine whether or not the language used attempted to present the facts of the case, and for that reason violates the provisions of the statute quoted.
It is not to be supposed, nor do we intend to be understood as intimating, that the misrepresentation of the testimony was willful. In the excitement necessarily incident to an energetic trial, testimony given in favor of or in opposition to a party frequently produces impressions upon the minds of counsel that are at variance with the declarations under oath of the witnesses as heard by persons who are less interested in the result of the action. It is sometimes difficult to hear distinctly what a timid or hesitating witness has said when called to the stand, and an attorney, in commenting before the jury upon the testimony which he supposes to have been given, may impart to it a coloring not justified by, and possibly at variance with, the exact words spoken. The modern method of reporting trials of actions enables opposing counsel to, correct such misstatements by causing the stenographic notes of the testimony given by a witness to be read, thereby avoiding the necessity formerly existing of applying to the court for a correct statement of the language used under oath. Though the precise interpretation of the testimony so given is not at present indispensable by the court, as the arbiter of controversies, when a stenographic report of a trial is made, such modern method does not necessarily preclude a judge, in case the testimony of a witness is evidently misstated by
Another alleged error is assigned by defendant’s counsel; but, deeming it unimportant, the judgment is affirmed. Affirmed.