functions of court and jury, and in this connection the justice quotes the quaint words of Chancellor Bacon to Justice Hutton: "That you be a light to jurors to open their eyes, but not a guide to lead them by the noses."'6 and so in the case of a comment on certain evidence that "it is not very material but it may go to the jury," where the testimony in fact had slight bearing, if any, on the case. 12 The practice of informing the jury of the ultimate results of their answers, when quesThe jurors are the judges, and the sole tions are submitted for special verdict, is not judges of the facts, and of the weight and commended but it is not regarded material credit which ought to be given to the testi- error. In each of the two cases the trial mony of the witnesses. Parties are entitled judge committed errors almost identical, into a decision on the facts by the jury, uninterrupting defendant's counsel and telling fluenced by the opinion of the trial judge, and any remarks or conduct on his part denying or impairing these rights is error." Error Without Prejudice Will Not Reverse. -In cases of the character under discussion, as in other cases, error will not be cause for reversal unless there is resulting prejudice. This a common rule and one frequently of great comfort, especially to appellees. Granting that the judge has spoken or acted in an improper manner, if the appellant or plaintiff in error was not injured thereby, he has no ground to complain. This is a case with remarks which are of doubtful propriety; as where at the close of the plaintiff's evidenee the court said that there should be a recovery unless a defense was put in, it appearing by the verdict that the defendant was not prejudiced by the remarks; and where the court made improper remarks to counsel and also handed the jury a calculation, but at the same time told them to compute their finding from the evidence. Similar rulings have been made in instances of inadvertent remarks by the court, which, while not proper, the results showed did not mislead the jury.' 10 A remark concerning land measurements, that they were made "by a baker, attended by a tinsmith, under the supervision of a lawyer," was held not to call for a reversal," 6 Miller v. Miller, 187 Pa. 572. 7 Dunn v. People, 172 Ill. 594. 8 Skelly v. Boland, 78 Ill. 438; State v. Holedger, 15 Wash. 448; State v. Richard, 72 Iowa, 17; Merchants' Bk. v. Ortmann, 48 Mich. 419; Sickler v. Town of La Valle, 65 Wis. 572. Williams v. Lumber Co., 118 N. Car. 928. State v. Ashbell, 57 Kan. 398; People v. Yokum, 118 Cal. 487; A., T. & S. F. R. Co. v. Hamilton, 6 Kan. App. 447; Chicago, etc. Ry. Co. v. Blume, 137 Ill. 452; Beasley v. People, 89 Ill. 571; Chalk v. State, 85 Tex. Crim. Bep. 116; Kircklighter v. Little, 105 Ga. 500; Schintz v. People, 178 Ill. 820. 1 Omensetter v. Kemper, 6 Pa. Super. Ct. Rep. 309. See also Silber v. Larkin, 94 Wis. 9, and McLeod & Co. v. Wilson Bros., 108 Ga. 790. 13 the jury to take the law from the court or they would be guilty of contempt and could be punished; one case was affirmed because the verdict could not have been different and also right; the other was reversed because of a different result, prejudice appearing in the verdict.14 If the trial judge makes erroneous remarks and subsequently realizing his mistake properly instructs the jury relative thereto, the evil may be remedied in the same manner as evidence improperly received is afterwards stricken out. In determining whether or not the court's remarks were improper and prejudicial, courts of review will take into consideration the context and the circumstances under which they were uttered. 16 Expressions of Opinion on the Fasts or Evidence. An application of the rule stated above, that error without resulting prejudice will not reverse, comes far from disposing of the subject under discussion by its division of the cases into two classes, those in which there is resulting prejudice, and those in which there is none, for the fact of the presence or absence of prejudice is itself a subject of inquiry, and it becomes necessary to determine what is regarded by courts of review as prejudicial error relative to the remarks or conduct of trial judges. In harmony with the principle that it is the 12 McGee v. State, 37 Tex. Crim. Rep. 668. 14 Hoey v. Fletcher, 39 Fla. 325; Price v. Carter Bros. & Co., Id. 362. 15 Klinker v. Third Ave. R. Co., 49 N. Y. Supp. 793; Chesebrough v. Conover, 140 N. Y. 382, 280, 85 N. E. Rep. 633. 16 Lamb v. Lippencott, 115 Mich. 611. The rule that resulting prejudice is necessary to occasion reversal is applied in the following cases, among others, concerning improper remarks of counsel: Tunnicliffe v. Bay Cities Con. Ry. Co., 107 Mich. 261; Sabine v. Merrill, 67 N. H. 226; Roose v. Roose, 145 Ind. 165; C. & A. R. Co. v. Dillon, 123 Ill. 578; Harms v. Steir, 67 Ill. App. 634. jury's province to pass judgment upon the facts and upon the character and sufficiency of the evidence, a general doctrine of appellate courts is, that it is reversible error if the misconduct of the presiding judge in invading this province of the jury by an expression of an opinion, results in prejudice. In McDowell v. Crawford," Justice Moncure quotes approvingly 1 Rob. Prac. 338, 344, where the cases are collected, and says: "They evince a jealous care to watch over and protect the legitimate powers of the jury. They show that the court must be very careful not to overstep the line which separates law from fact. They establish the doctrine that when the evidence is parol any opinion as to weight, effect or sufficiency of the evidence submitted to the jury, any assumption of a fact as proven or even intimation that written evidence states matters which it does not state, will be an invasion of the province of the jury." Justice Green, in State v. Hurst, 18 referring to the above, says that if such is the case in civil cases there are much stronger reasons why it would be error to make such remarks in the trial of a criminal ease. The jury have high regard for those occupying the positions of judges, and are attentive to the slightest indications of their opinions, and it is therefore improper that the same should be expressed plainly by word or act in such a way as to influence the jury. It has been held accord-❘ ingly, without regard to state statutes, that it is reversible error for the court to express an opinion as to disputed facts, the weight of evidence, its credibility or what it proves. There have been reversals on this account in the following illustrative cases: Where the judge said: "This is a civil suit, but if the jury considered the evidence detailed before them they would find the case decidedly criminal;" where when the jury returned after retiring and asked if the defendant was being prosecuted for a certain offense, the judge said, "Yes, and that is what is 17 11 Gratt, 405. 18 11 W. Va. 51. 19 19 Hine v. Commercial Bk., 119 Mich. 448; Wilkinson v. Searey, 76 Ala. 176; Wannack v. Mayor, etc., 53 Ga. 162; Hair v. Little, 28 Ala. 236; State v. Philpot, 97 Iowa, 365; Kirk v. State, 85 Tex. Crim. Rep. 224; Artz v. Robertson, 50 Ill. App. 84. 20 Furhman v. Mayor of Huntsville, 54 Ala. 263. 21 proven ;"'" in a case to recover a subscription to a county map, the judge saying that he did not know as he would recognize the views of the defendant's house ;22 in a robbery case where the court said, "Do you mean to say, sir, that there is no evidence here to show the guilt of the defendant? I say there is evidence;"" where the judge said that the evidence warranted a remark of the district attorney that the defendant and those arrested with him were thieves ;24 .24 where the judge said "I believe that is the same can," in reference to an identification of an oil can, the point being important;20 where on a trial for false imprisonment the judge remarked: "They are liable and I will so charge the jury, and this testimony may enormously enhance the damages," such remarks shutting off the defense of probable cause and advice of attorney;26 and where the court read a printed report of a case and said that he adopted the opinion thereof, as he could in no more effective way indicate his opinion as to the effect of the evidence in the case on trial.27 These expressions of opinion by trial judges are frequently so positive and decided that the error is not remedied by subsequent cautions or instructions to the jury, as where in an action by a female for an assault, the court said that the matter should be taken before the grand jury;28 where the judge said, "There is as much testimony that the defendant had kicked the deceased upon the chest as upon the face;"" 29 21 Lawson v. State (Tex. Crim. App.), 32 S. W. Rep, 895. 22 Andreas v. Ketchum, 77 Ill. 877. 93 Feinburg v. People, 174 Ill. 609. 24 Scott v. State, 91 Wis. 552. 25 Marzen v. People, 178 Ill. 55, 58. 26 Bennett v. Eddy, 120 Mich. 300, 6 Det. L. N. 169, 79 N. W. Rep. 481. 7 Herman Co. v. Williams, 86 Fla. 186. For other cases on improper expressions of opinion by judges, see Burrows v. Delta Trans. Co.. 106 Mich. 582, 29 L. R. A. 468; I. C. R. R. Co. v. Souders, 178 Ill. 585, reversing 79 Ill. App. 41; Cone v. Citizens' Bk., 4 Kan . App. 470; Murphy v. State (Tex.), 57 S. W. Rep. 967; Walker v. Coleman, 55 Kan. 381; Kennedy v. People, 44 Ill. 283; McCullar v. State, 36 Tex. Crim. Rep. 213. While it would be outside the purview of this article to discuss instructions, generally, it may properly be said in this connection that it is error to indicate an opinion in an instruction. Frame v. Badger, 79 Ill. 441. In City of Chicago v. Spoor, 190 Ill. 853, it is held to be error for the judge to say concerning a photograph, "it is for the jury to say how much stock they take in testimony of that kind." 25 Davison v. Herring, 48 N. Y.Supp. 760. 29 State v. Harkin, 7 Nev. 377. and where the court said: "I mean to throw this action out of court the first opportunity." In deciding Brooks v. Railroad Co.,31 Justice O'Brien says, with reference to certain misstatements of the trial judge concerning what occurred at a former trial between the same parties: "It will not detract in any degree from the high character of the learned judge to say that he did not at the moment fully appreciate the importance of his remarks or the probable influence which would be given to them by the jury. He was about to submit to them a disputed question of facts upon the evidence and he virtually threw into the scale against the defendant all the weight of his impartial position and unbiased recollection upon that very question. There was no longer any chance for the defendant to succeed at least upon that issue." Reversals will not be occasioned by remarks of the trial judge, which, while improper, are not prejudicial; are not a comment on the testimony or an intimation of an opinion; are made with the consent of 'parties or counsel; are of such a character that all evil connected therewith is cured by subsequent instructions to the jury; or are no more than necessary in making a ruling.32 Commenting on the Credibility of Witnesses. Equally serious and prejudicial with the error of the judge's expressing an opinion on the evidence is that of his passing judgment on the credibility of the witnesses, which is an office or function within the province of the jury. as to the weight of any evidence relevant to the issue, are an improper assumption of, or infringement upon, the province of the jury, and when duly excepted to by the party injured they may be assigned as error and constitute ground for reversals."3 And so where the trial judge imputed improper motives to the defendant's witnesses and disparaged their testimony; where he said "stop quibbling," thus implying that the witness was evading the truth; where he said that the witness had not observed with the closeness he thought he had, and in similar instances in which the testimony of the witnesses was of importance the appellate courts have reversed the cases on these grounds.34 It is improper for the judge to comment on the "unquestioned integrity" or the respectability of a witness, praise being no more proper than criticism. The credibility of one who has turned state's evidence is for the jury, and the court should do no more than call attention to such testimony. A common way in which nisi prius judges err in relation to indicating their opinions of the credibility of the witnesses, is by taking in hand the examinations, propounding the questions extensively and on important points, a practice which the decisions generally concur in condemning, while they admit. the propriety on the part of the judges of asking questions on material points, not brought out plainly before the jury. On this subject the Supreme Court of Illinois, through Justice Bogg, in Dunn v. People, said: "It is a task of great delicacy and much difficulty for a presiding judge to so conduct the examination of a witness that nothing, either in the tone or inflection of the voice, the play of the features, the manner of propounding or framing the question, or the course of in 37 These two errors are similar in nature and effect. In a comparatively recent case the Supreme Court of Florida said, speaking of an assignment of error occasioned by a remark of the trial judge, to the effect that he was not responsi ble for the trouble that the witnesses had gotten themselves into: "We have repeat-vestigation pursued in the examination, will edly held that remarks of the judge during the trial as to the credibility of a witness or 30 Swan v. Keough, 54 N. Y. Supp. 474. See also People v. Corey, 157 N. Y. 332; Brooks v. Rochester Ry. Co., 156 N. Y. 244, 252. 31 156 N. Y. 252. 32 Hackman v. Gutweiler, 66 Mo. App. 244; State v. Barnes, 48 La. Ann. 460; Farley v. Gate City Gas Co., 105 Ga. 323; Frank v. Davenport, 105 Iowa, 588; State v. Simmons, 51 N. Car. (6 Jones, L.) 21; Penn. Co. v. Coulan, 101 Ill. 93; Bradbury v. McHenry (Cal.), 57 Pac. Rep. 999; Mut. Life Ins. Co. v. Seiby, 19 C. C. A. 331, 72 Fed. Rep. 980; Van Lehn v. Morse, 16 Wash. 219. 33 Roberson v. State, 40 Fla. 509. 34 People v. Hill, 56 N. Y. Supp. 282; People v. Nino, 149 N. Y. 324; Rose v. State, 13 Ohio, C. C. 342; Valley Lumber Co. v. Smith, 71 Wis. 304; State v. Jacob (S. Car.), 8 S. E. Rep. 698; McDonald v. Fort Dearborn Nat. Bk., 72 Ill. App. 17; Williams v. West Bay City, 119 Mich. 395; Swenson v. Erickson, 90 Ill. App. 358; Symon v. People, 188 Ill. 609, 59 N. E. Rep. 508. 35 McMinn v. Whelan, 27 Cal. 300; State v. Staley, 45 W. Va. 792-804. 36 People v. Hare, 57 Mich. 505; People v. Lyons, 49 Mich. 78. 37 172 Ill. 582. instances where no prejudice resulted, as where the testimony was unimportant, substantial justice was done or the error was remedied by instructions.40 Interfering With the Rights of Parties and Counsel. The parties to a suit and the counsel representing them have rights with which it is error for the judge to interfere.. Nothing should be said by him that can be construed to the prejudice of either party, and moreover it is the judge's duty to repress needless attacks on the characters of the parties. It is also held error to disparage an attorney in the eyes of the jury, as this course occasions prejudice. An attorney is an officer of the court and is entitled to such treatment by the court as the interests of the client demand, and should not be made the object of such remarks as "Your brain seems indicate to the jury the trend of the mind of the questioner. An extended examination of a witness by the court must be unfair unless it partakes partly of the nature of a crossexamination, and though great skill and tact and perfect fairness be employed there is much danger that the impression or opinion of the court as to the truthfulness, candor and reliability of the witness and as to the weight and value of his testimony, will be manifested to the jury. Though at times the court may, by an opportune and carefully considered question, elucidate a point, aid an embarrassed witness or facilitate the prog. ress of a trial without in any degree influencing the jury or arousing distrust in the minds of the parties of their attorneys, yet the examination of witnesses is the more appropriate function of the counsel, and it is believed the instances are rare and the conditions ex-to be out of order;"42 but if an attorney is, ceptional in a high degree which will justify the presiding judge in entering upon and conducting an extended examination of a witness, and that the exercise of a sound discretion will seldom deem such action necessary or advisable."38 There are, however, numerous decisions which uphold the general control by the judge of the examination of witnesses and his right to elicit the whole truth that justice may be done.39 The point is one to which the doctrine above announced relative to resulting prejudice is pre-eminently applicable. It is certainly the judge's duty to do all he can to further just interests and to examine witnesses if necessary to this end, providing his examinations are not the cause of improper prejudice. Following principles and rules, that have already been discussed, reviewing courts do not reverse cases on account of the direct or indirect comment or reflection of the trial judges upon the credibility of witnesses in 38 Wheeler v. Wallace, 53 Mich. 355; Riegler v. Tribune Assn., 58 N. Y. Supp. 807; Schmidt v. St. L. R. Co.,149 Mo. 269, in which case the judge made improper remarks concerning the conduct and testimony of a girl fourteen years old; Sharp v. State, 51 Ark. 147; McMinn v. Whelan, 27 Cal. 300; People v. Dick. 34 Cal. 663; Omaha Brew. Assn. v. Bullnheimer, 58 Neb. 387; People v. Abbott, 101 Cal. 645; Kramer v. Riss, 77 Ill. App. 623; Harrell v. State, 39 Tex. Crim. Rep. 204. In State v. Allen, 100 Iowa, 7, it is held reversi ble error for the court to imply by questions asked of a witness that the latter had been instructed not to answer. 39 State v. Lee, 80 N. Car. 484; Epps v. State, 19 Ga. 118; Sparks v. State, 59 Ala. 82. as matter of fact, trifling with the court, it is not improper for the latter to say so.43 Counsel have rights of arguments and crossexaminations that on account of their client's interests should not be denied.44 Communications Between Judge and Jury. -So carefully do courts in their opinions guard the impartiality, purity and regularity of verdicts, that communications on the part of trial judges with the jury after their retirement for deliberation, except to modify or supplement the instructions, are regarded with disapproval. It has been said that the history of the law discloses a struggle for centuries to prevent juries from being ap etc. R. Co.v. Morphew, 63 Ill. App. 162; Crane Lumber Co. v. Bellows, 116 Mich. 304; Connor v. Wilkie, 1 Kan. App. 492; State v. Burwell, 52 Kan. 686; City of Frankfort v. Coleman, 19 Ind. App. 368. 41 Cronkhite v. Dickerson, 51 Mich. 177; Rickabus v. Gott, Id. 227; State v. English, 62 Minn. 402, 64 N. W. Rep. 1136. 42 Williams v. West Bay City, 119 Mich. 395; People v. O'Hare (Mich.), 83 N. W. Rep. 279; People v. Haw. ley, 111 Cal. 78; Reilly v. C., C. Ry. Co., 90 Ill. App. 364. In Kirby v. State (Tex. Crim. App.), 38 S. W. Rep. 180, the court's remarks were held not to be prejudicial. State v. Stowell, 60 Iowa, 535. 43 Krapp v. Hauer, 38 Kan. 430; State v. Hayward, 62 Minn. 474, 65 N. W. Rep. 63. 44 Birmingham, etc. Co. v. Wildman, 119 Ala. 547; Hobbs v. State, 74 Ala. 41; Olds v. Com, 3 A. K. Marsh. (Ky.) 467; Belmore v. Caldwell, 2 Bibb (Ky.), 76; Hunt v. State, 49 Ga. 255; Bennett v. Eddy, 120 Mich. 300, 79 N. W. Rep. 481; People v. Barker, 60 Mich. 277, 27 N. W. Rep. 539. The practice of asking defendant's counsel if he relies on a special plea, while not sufficient cause for reversal, is not com. mended. State v. Byrd, 52 S. Car. 480. proached by improper communications; that every safeguard in this respect should be jealously upheld, and that such communications by judges are so dangerous and impolitic that they will be presumed to have influenced the jury improperly.45 In Sargent v. Roberts, 46 a case often cited on this point, the position is taken that no communication whatever ought to take place between the judge and the jury after the case has been committed to them by the charge, unless in open court, and where practicable in the presence of counsel; that the oath of the officer having the jury in charge indicates that such should be the case, and it is better that everybody should suffer inconvenience than that a practice should be encouraged which is capable of abuse, or at least of being the ground of uneasiness and jealously. This decision is in line with a number called forth by a practice justices of the peace had of con. ferring with the jurors in their rooms, and has not been followed invariably,48 but in its general principles, that do not conflict with the right the judge has of giving to the jury additional instructions as to the law, the opinion is in accord with the weight of authority. It has been held error even for the judge to go into the jury room and confer with them about the case though nothing was said to influence them in passing on its merits.50 The judge has a right to give the 47 45 O'Brien v. Ins. Co., 38 N. Y. Sup. Ct. Rep. 482; Plunkett v. Appleton, 51 How. Pr. 469. 46 1 Pick. 337. 47 Bunn v. Croul, 10 Johns. 239; Taylor v. Betford, 13 Johns. 487; Neil v. Abel, 24 Wend. 185. 48 Goldsmith v. Solomons, 2 Strobhart (24 S. Car.), 296. 49 State v. Alexander, 66 Mo. 148, 163; State v. Pat. terson, 45 Vt. 308; Watertown B. & L. Co. v. Mix, 51 N. Y. 558; Chinn v. Davis, 21 Mo. App. 363; Com. v. Heden, 162 Mass. 521. 50 State v. Wroth, 15 Wash. 621; Lester v. Hays, 14 Tex. Civ. App. 643; 2 Thompson on Trials, sec. 2555. In Read v. City of Cambridge, 124 Mass. 567, the court says, that it will not inquire under such circumstances whether the communication was in fact erroneous or prejudicial, but the contrary is held in People v. Kelly, 94 N. Y. 526. See also Danes v. Pearson, Ind. App. 465; Fisher v. People, 23 Ill. 218; Benson v. Clark, 1 Cow. 258; Kirk v. State, 14 Ohio, 511; Wiggins v. Downer, 67 How. Pr. Rep. 65. In Priest v. State (Tex. Crim. App.), 34 S. W. Rep. 611, it was held not error for a judge who was desirous of knowing whether it was necessary to send out for a talesman to make out another jury to go into a jury room and ask the jury whether or not they would soon agree, but that the better practice would be to bring the jury into open court. jury instructions upon the law after they have retired, even sua sponte and although counsel are not present. The new instructions should be in writing and returned by the jury into court with the other papers, thus enabling counsel to save exceptions thereto;51 but an early case held that it was improper for the court to send word to the jury that if they wished any information on the law they should send to the court.52 It has been further held in this connection that a party whose evidence was read to the jury on giving them additional instructions has no ground for exception, and that, where it appears that there was communication to which an objection is made, it devolves on the party not objecting to show the nature of the communication.54 Forcing an Agreement by Threats or Otherwise.-What is a reasonable time to keep a jury together in case they fail to agree is a matter largely within the discretion of the trial judge, but he should refrain from any expressions savoring of threat or coercion to force an agreement.55 Justice Harris, of New York, said: "A judge has no right to threaten or intimidate a jury in order to affect their deliberations. I think he has no right even to allude to his own purposes as to the length of time they are to be kept together. There should be nothing in his intercourse with the jury having the least appearance of duress or coercion. The jury, while all proper motives to induce them to agree upon a common verdict may be repeatedly and earnestly urged upon them, should be left to feel that they act with entire freedom in their deliberations; that should they continue to disagree they are not to be exposed to unreasonable inconvenience nor receive the animadversion of the court."'56 It has been held to be reversible error for the judge to tell the jury that he would keep them to the end of the term unless they 61 Sch. Dist. No. 1 v. Bragdon, 25 N. H. 517; Shapley v. White, 6 N. H. 172; Bassett v. Salisbury Mfg. Co., 28 N. H. 438; Allen, etc. Co. v. Aldrich, 29 N. H. 63; State v. Green, 7 La. Ann. 518; Roy v. Goings, 112 Ill. 667. 59 Hoberg v. State, 3 Minn. 262. 58 Alexander v. Gardiner, 14 R. I. 15. 56 Green v. Telfair, 11 How. Pr. 260, quoted in Price v. Carter, 39 Fla. 362. |