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turned: Allen v. Pegram, 16–16:3; amination by the court without keepPouers v. City of Council Bluff's, 4.5–ing the jury waiting, where they 052; Murphy 1. C. R. I. & P. R. R. were submitted during the opening Co., 45-661. This is true where there and only argument in the case: Vcis no controversy as to the facts, and | Caleb v. Smith, 22-242. especially where the evidence thereof The whole charge as given should is documentary: Thorp r. Criy, 10- be consistent, and so fra ned as not 461; but when there is evidence tend- only to state the law correctly, but in ing in any degree to establish a cause such manner as not to confuse the of action or defense, it is error to take jury : lloben v. B. & M. R. R. Co., the case from the jury: Crawfor ' 1. 20-562 Burton, 6-176; Hall r. Etna ufi.! MODIFICATIONS: Modifications of Co., 30–215, or pronounce an opinion instructions asked should nobe by upon the sufficiency or weight of evi- interlineation or erasure: Phillips v. dence, except where the proof is doc- Starr, 26–349. umentary: Muldoney v. III. Cent. In giving instructions the court is R. Co., 332-176, anıt see Greanleaf v. not limited to the language adopted III. Cent. R. Co., 29–14.

| by the party requesting them, but Where, on an issue of fact raised by may 100 lify them to meet its views; petition and answer in denial, all evi- brit if, as so modified, they do notexdence was ruled out, held, error to di press the law, they are subject to ob. rect a verdict for plaintiff', as plaintite jection: The State r. Gibbons, 10-117; was bound to prove the substance of Abbott v. Striblen, 6–191. his complaint, and whether he had It is not error to refuse an instrucdone so was a question for the jury: tion which could not be properly Oleson r. Hendrickson, 12-222. given without modification; Grimes

When there is nothing for the v. Martin, 10-347; Morrison e. Alyjury to do but determine the amounters, 11-5:18. of a note, the court may direct theirMusT BE IN WRITING: It is error verdict: l'ulter 1. Wooster, 10–334. to orally explain any instruction given,

Where the court is ilsked by de- or to charge the jury verbally: liead fendant to instruct the jury to find v. Languorthy, 15-235. in his favor, the plaintiff is entitled to Where the jury sent questions to have everything regarded as e-tab- the judge, in risponse to which he lished which the testimony tended to told them orally that their questions prove: Stone v. C. & N. W. R. Co., had nothing to do with the case, and 47-82, 84.

that it was their duty to determine The direction by the court to the the case under th“ evidence and injury to find a verilict for either party structions given, helil that such acis not such an instiuction as need be, tion was not erroneous, it not being in writing: Nvid.

an instruction to the jury, but a reIt is the province of the court, and fusal to instruct: Suilizan t. Collins, not that of the jury, to determine the 18-228. nature of the action, or what issues ! CONSTRUCTION: The language of are made by the pleadings: Vckin- instructions should be given its usual ney v. Hartman, 4-154; Beebe v. and ordinary meaning, and a case Stutsman, 5–271; Fannon v. Robinson, should not be reversed because an in10-272; Reid v. Mason, 14-341; Pharo struction is susceptible of a forced 0. Johnson, 1:1-560; Ilempstead 1. and unusual construction, or which City of Des Moines, 52-303; and would make it erroneous: The Stute à failure of the court to fully state v. Hurford, 47-16. the issues made in the pleasings | Instructions must always be conconstitutes error: Potter 1. ('. R. I. sidered with reference to the ciicum& P. R. R. CO., 46-39).

stances of the case in which they are As T) FORM OF INSTRUCTIONS : given: The State r. Johnson, 8-52). Instructions should be brief and per- In-tructions should be considered spicuous, and where they are confused and construed together, and in conor in conflict, to the probable pre-nectin with the case made be the rejudlice of the complaining party, a cord: Burrol's 1. Lehmudort, 9-96, new trial should be granted: Eysir v. 104 ; Broren u. Bridges, 31-138 ; The Weissgerber. 2-46;?; Hoben 7. B. & State v. Maloy, 44-104 ; Locke v. S. M. R. R. Co., 20-562. But, held, C. & P. R. i 0., 46–109, 114; The that it was not a good excuse for re- State v. Stanley, 48-221 ; Albertson r. fusal to give instructions a-ked, that K. & D. V. R. Co., 45-292; The they were unnecessarily lengthy and State 1. Golden, 49-48 : and, although numerous, nor that they were not, one of such instructions is too broad passed up in time to allow their ex- ' in its statements, if properly limited by a sulisequent one, the charge will when taken at the time the instrucnot be consiilere erroneous: Ruble v. tions are given: Vann v. S. C. & P. V Donall, l-19:3; nor is it ground R. Co., 46-6:37. for objection that one instruction An exception to instructions, which omits to charge as to a specific point, specifies them by number, is sufficientif other portions of the charge cover ly definite as to the part objected to : that point: llamilton v. The State Miller v. Gardner. 49-2:34. Bank, 12-306, 311.

Ulf the ruling of the court upon an If a series of instructions states the instruction, w.th the proper exception law in such a manner as to enable a thereto, is noted on the margin thereperson of common understanding to of, it is sufficient and a formal bill of know what is intended, that will be exceptions is not nec ssary, though sutticient; Sinothers v. Hunks, 34 the better practice : Caulwullader v. 26.

Blair, 18-420 ; Phillips v. Starr, 26EXCEPTIONS TO INSTRUCTIONS: 349 When the exceptions are made at the Where exceptions are not properly time the instructions are given, they taken, instructions will not be reviewmay be general and without a reasoned on appeal; Morse v. Close, 11-93. being stated therefor: Johnson v. C. WIAT EVIDENCE MUST BE SET R. I. P. R. R. CO., 51-25.

OUT IN THE RECORD: So muci of If exceptions are not taken when the evidence should be set out in the the instructions are given, such excap- record as relates to the exceptions, tions must specify the ground of one that their applicability may ippear, jection: Hale v. Gibbs, 4-380, 381; but it is not absolutely essential that and the ground of objection that all the ev.dence should be set out. "they are not itpplicable'' is not suffi- Instructions which are erroneous and ciently specific wh-re it is urgd that misleading in any possible view, will the instructions are essentially erro- be reviewed, although the record neous: Miller r. Gariiner, 49-2:34. does not present all the evidence :

A party who urges specifie objec- Sterenson r. Greenlee, 15-96. tions in the court below, cannot aban- Where instructions are founded on don them and raise new ones for the evidence they will not be reviewed first time in the supreme court: Price unless all the evidence is before the r. B. C. R. & M. R. Co., 42-16. court: Reid v. Mason. 14-541.

It is not sufficient to a sign the giv: The refusal of instructions which ing of ins ructions as error in motion wight have been pri per under a corfor a new trial. The instructions tain state of the proof, will nevertheshould be excepted to: Suyler o. less not be held erroneous on appeal Eldridge, 31-129; Same v. Nelson, when the evidence is not all before 31-235.

the court; Shephard v. Brenton, 20A general exception en masse to 41. all the instructions is sufficient if no ERROR WITHOUT PREJUDICE IN Jortion of the charge is correct: GIVING INSTRUCTIONS: A case will E idy v. Howard, 2-175; but it any not be reversed for the giving of an portion of it is correct, such exceps erroneous instruction which could not tion will not be regarded; Loomis have worked any prrjudice to the 1. Simpson, 13–5:32; Jack 1. Naler, complaining party: Eyser 1. Weiss15-750; Armstrong o. Pierson. 15-476; gerb r. 2-163, 478; McKay 1. LeonCousins v Westcott, 15–2:3; Lyons and, 17–569; Claggett v. Conire, 16Į Thomps, 16-62; Shephard v. 47; Ocheltree Carl, 233-394 ; Brenton, 30-41; Spray 1 Scott, 20- | Hunt ». C. & N. W. R. CO., 26–363. 47;}; Verholf v. Van Hloureenlenger, DUTY TO INSTRUCT : Where no in21-29; Carpenter 1. Parker, 2.3-structions were presented by either 40; Redmaniv. Malrin, 23-296; 1 party, and the case was one in which HirCalib . Smith, 24-391; Morshon there was a special necessity for a clear 7. Mutl. Ins. Co., 34-87; Moore r. I prisentation of the law to the jury, Gilbert, 46-508; Rutopor. Foy, 46– held, that the failure of the judiye on 1.2; Pitman v. Molsberry, 49–3:39; his own motion to instruct the jury so held, where the exception was in was error: Owen v. Ouen, 22–270. the worlls to the giving of each of If the instructions asked by counsel which in tructions the defendant ex- are detective and insufficient, and the (ted" overruling Eyser v. Weiss- case is complicated, or, the law appligerber, 2-163); Dare port G. L. & C. cable to it not supposed to be within Co. 8. City of Darenport, 1:3-221, the knowledge of jurymen, and, par

An exception to all the instructions ticularly, if the charg is of a bigh between certain numbers and to criminal offense, it is the duty of the each of them" is sufficiently specific court to point out to the jury contro

verted questions of fact, and state the McIntyre v. McIntyr, 48–511.
law applicable to them, and a failure. The court cannot be requ red to
to do so will be error: The State v. instruct the jury upon the facts which
Brainard, 26-572.

are proper for their consideration:
AS TO WHAT QUESTIONS MAY BE Kline v. K. C. St. J. & C. B. R. Co.,
RAISED BY INSTRUCTIONS: Where | 50–4;.:6.
eviilence has been admitted with ut INSTRUCTIONS PART OF RECORD:
objection, it cannot be excluded from Before the enactment of the provi-
the consideration of the jury by an sion that the instructious shall be-
instruction: The State v. Piatt, 20- come a part of the record. it was held
267; Becker v. Becker, 45-239; Col- that they were not so by law, and 10:-
lins v. Collins, 46-60.

less embodied in the reco d by order It is error to raise the question as of the court, would not be considered to the suthciency of a pleading in an on appeal: Pierce v. Locke, 11-454. instruction: Nolen v. Wisner, 9-191;

RULES REGARDING JURIES.

officer.

Sec. 2790. Whenever, in the opinion of the court, it is proper View by jury. for the jury to have a view of the real property which is the subR3 3061. C. '51, 2 1779. ject of controversy, or of the place in which any material fact

occurred, it may order them to be conducted in a body, under the charge of an officer, to the place which shall be shown to them by some person appointed by the court for that purpose; while the jury are thus alsent, no person other than the person so appointed shall speak to them on any subject connected with the trial.

The purpose of viewing the prem- that it was (r or to instruct them to ises, as here provided, is to enable the determine from all the evidence in jury to better understand the testi- the case, and all the facts and circun mony of witnesses, respecting the stance-disclosed on the trial in inding same, and more intelligently apply your personal primination, whether, such testimony to the issues before etc.: Close 1. Sami, 27-593. them, and not to make them silent For similar provision in criminal witnesses in the case. Therefore, held, I cases, see $ 4432.

Sec. 2791. When the case is finally submitted to the jury, they Kept together may decide in court or retire for deliberation. If they retire, in charge of

they shall be kept together, under charge of an officer, until they R. 3062. agree upon a verdict, or are discharged by the court. The officer C. '51, 2 1781.

having them under his charge shall not suffer any communicailun to be made to them, or make any himself, except to ask them if they have agreed upon their verdict, unless by order of the court, and he shall not, before their verdict is rendered, communicate 10 any person the state of their deliberations, or the verdict agreed upon.

As to the separation of the jury see $ 2805 and notes. where a sealed verdict is returned, 1

Sec. 2792. If the jury are permitted to separate during the Court to nd trial, they must be advised by the court that it is the duty of each vise jury when

n one of them not to converse with any other of them, or with any R3063

person, nor to suffer himself to be addressed liy any person on any C. '51, 2 1780.

subject of the trial, and that during the trial it is the duty of each one of them to avoid, as far as possible, forming any opinion thereon until the cause is finally subm tted to them.

Sixc. 2793. If, after the empanelling of the jury and before. Juror sick:

verdict, a juror becomes sick so as to be unable to perforin his when discharged. duty, he may be discharged. In such case the trial shall proceed R. 3061. C. '51, 1782.

41782. with the remaining jurors, provided the number has not been

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reduced below ten, or the court may, in its discretion, order the jury to be discharged. Sec. 2794. The jury may be discharged by the court on Discharge:

when. account of any accident or calamity requiring their discharge, or X

R. 2 3665. by the consent of both parties, or, when on an amendment a continuauce is ordered, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing. SEC. 2795. In all cases where the jury are discharged during Cause re-tried:

when. the trial, or after the cause is submitted to them, it may be tried i

R. 3066. again immediately, or at a future time, as the court may then direct.

Sec. 2796. The court may also, at any time after having Adjournment: entered upon the trial of any cause, where it may deem it right after trial befor the purposes of justice, order an adjournment for such time R. 2 3067. within the term, and subject to such terms and conditions as to costs and otherwise, as it may think just.

SEC. 2797. Upon retiring for deliberation, the jury may take what jury may with them all books of accounts, and all papers which have been uke with received as evidence in the cause, except cepositions, which shall R. 3068.

C. '51, 1783. not be so taken, unless all the testimony is in writing, and none of the same has been ordered to be struck out.

The jury may take with them thel But where a deposition which was instructions of the court: Head r. material to the issue, but which had Logrorthy, 1.3–23; also ! apers ad- not been offered in evidence, was mittel in evidence: Peterson v. Hau- taken by the jury to their room withgen, 31-39).

out the knowledge or consent of the Aparty cannot be heard to com- party, held, that it was error in the plain that the jury took a deposition court below to refuse a new trial: with them to their room, unless he ob- Coffin v. Gephart, 18-256. So held, jected at the proper time, and under also, where the jury took with them the circumstauces of a particular case, and considered a deposition not in hild, that he could not have been evidence, and favorable to the successprejudiced: Shields v. Guffey, 9–322. ful party: Sevart 1. B. & M. R. R. So, wiere they took with them a de- | Co., 11-62; but such misconduct position attached to the pleadings, would not vitiate the verdict if the with the presumed consent of the deposition was favorable to the party appellant, and no prejudice was complaining, or could not have preshown, held, that there was not suffi- judiced him: lvid; Abel 1. Kennedy, cient error to warrant a reversal: 3 Gr. 47. The Stute o. Delong, 12-453.

Sec. 2798. When the jury is absent, the court may adjourn Court alwars from time to time in respect to other business, but it is to be open until ver

dict. deemed open for every purpose connected with the cause submit- R. 3069. ted to the jury, until å verdict is rendered or the jury discharged. C. '31, X 1781.

Sec. 2799. At any time before the cause is finally sulmitted Further testito the court or jury, either party may be permitted by the court mony to corto give further testimony to correct an evident oversight or mis- R. & 3070),

C. '51, 2 1773. take, but terms may be imposed upon the party obtaining the C. o privilege.

The provision here made is not abused: McManus v. Finan, 4-283. limited in its application to the period So held, also, where a party was alof examining witnesses. and where, I lowed to introduce evidence after the after a case had been partially argued conclusion of the argument of one of to the jury, plaintiff was allowed to the counsel for the opposite party, for introluce testimony as to a cerain the purpose of correcting an evident Toint clailed to have been omitted oversight or mistake: McCormick v. by oversight, held, that the discretion | Holbrook, 22-487. of the court in such matters was not! The provisions of this section do

not operate to deny the power of the cases, but in a criminal case, under court to receive evidence out of its some circumstances and for some purregular order in other cases where poses, after the evidence is closed, a there is no surprise and justice is pro- witness may be recalled, and in the al moted: Huy v. Huey, 26–525; and sence of a showing to the contrary, it see notes to $ 2779.

will be presumed that he was properly This section applies alone to civil / recalled: The State v. Shean, 32-88.

SEC. 2800. After the jury has retired for deliberation, if they Information desire to be informed as to any point of law arising in the case, given after reuirement of

they may request the officer to conduct them into court, which he R. 23071. shall do, when the information required shall be given in the

presence of, or after notice to, the parties or their counsel.

Additional instructions should al-should additional instructions be ways be given in open court. It is error given without notice to counsel: Daris to send them to the ju y in their room: v. Fish, 1 Gr. 406. O'Connor v. Guthrie, 11-80; nor |

SEC. 2801. Such information shall be in writing, and shall be How given. held approved unless it be excepted to in the same way as the R. 172.

charge, and no discussion thereon shall be allowed to either party.

Sec. 2802. If, while the jury are kept together, either during Food and lodg- progress of the trial or after their retirement for deliberation, the K.E3376.

court order them to be provided with suitable food and lodging, they must be provided by the sheriff, at the expense of the county:

VERDICT.

Sec. 2503. The verdict must be written and signed by a fore. Ilow signed man chosen by the jury itself, and when agreed, the jury must be and rendered. R. 23073

conducted into court, their names called, and the verdict rendered 31, 2 1789.

by him and read by the clerk to the jury, and the inquiry made whether it is their verdict. If an v juror disagrees, the jury must be sent out again, but if no disagreement is expressed and neither party requires the jury to be poiled, the verdict is complete and the jury discharged from the case.

The verdict of the jury may be put might order the clerk to compute the in form by the court, if it can by amount and enter judgment accorddefinitely ascertaining from the data ingly: McGregor 0. Armill, 1-0. given by them, for whomi and in When, however, the amount can. what amount they intended to ren not be definitely ascertained by reterder a verdict: Sterens r. Campbel.ence to the pleadings, or to some cer6-3:35; Cassell v. Western Stage Co.,tain data given by the jury, the court 12-47; Armstrong 1. Pierson, 15-476. cannot assume the power to fix the

Where à verdict, taken in comer amount: Fromine v. Jones, 13-174; tion with the charge of the court as to Moore 11. Derol, 14-112 form, etc., thereof, leaves no doubt Under the fac's of a particular case as to what the court and jury mutual a verdict was held too uncertain to ly understood and intended, it is warrant judgment thereon: Richardsufficient: The State v. Funck, 17- son 1. McCormick, 47–80. 36.).

T.e provision as to the signing of Where the verdict in an action on the verdict is directory merely, and a note was for “the amount of the if it is in fact returned by the jury, a note and interest,” and the only failure to sign it will not be a fatal question at issue was as to the right defect: Morrison v. Orerton, 20-46). to recover at all, held, that the court |

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