5 R.I. 295 | R.I. | 1858
The evidence before the jury was certainly such, that they might well infer from it, that the store and bar-room were kept by the wife under the direction and in behalf of her husband, the defendant. Had the judge confined himself to expressing this opinion merely, leaving the jury, however, at liberty to draw their own inference in this respect from the evidence submitted to them, we should not deem such expression of opinion the proper subject of an exception, even though we might differ from him in his conclusion. The point of the objection to his instruction to the jury here is, that, as he states, he instructed them "thatit should be presumed that the wife kept the store by the direction and in behalf of her husband," without more; which well might be construed by the jury to mean, that they were not at liberty to draw their own inference in this respect from the evidence before them, but were bound to adopt, as a matter of law, the presumption stated in the charge of the court.
It is quite possible, after all, that this appears in consequence of an incautious allowance of this bill of exceptions, rather than is justified by anything which actually took place at the trial. Taking, however, as we must, the bill of exceptions as allowed, the instruction might reasonably have been understood by the jury to be imperative upon them, as to the above inference of fact; and a new trial is therefore allowed the defendant, at the ensuing term of the court of common pleas for the county of Providence. *297
