Chapman v. . McCormick

Danforth, J. I cannot concur in the conclusion that the learned trial court did not err in refusing to permit counsel to ask for further instructions to the jury. It may well be that *481 circumstances other than those noted in the appeal hook had occurred during the trial, and which, if written out, would justify this refusal; but I take the case as I find it. At the close of the testimony there was summing up by counsel, a charge to the jury, and, as the record shows, they “ having risen from their seats and about to retire in charge of an officer to deliberate , on their verdict,” the defendant’s counsel said: “ Wait one moment, please.” The court, “Eo; I will not add to my charge at all; ” and addressing the jury said, “ Go on, gentlemen.” Defendant’s counsel: “ I want to ask the court to make some charge to the jury.” The court: “ No; I have said all I ought to say. You take an exception % ” Defendant’s counsel: “ Yes; but I want to ask the court to charge the jury in certain respects. I claim that to be my right, your honor.” The court: “ I refuse, and you take an exception.” The respondent states, upon his printed points, “ an opportunity to make requests had been offered and had not been availed of.” But this is accompanied by no reference to the case, and a careful examination fails to disclose the occurrence. The effect of such a fact, had it existed, need not be considered. ÜSTor was the refusal of the court put upon that ground. The request of the counsel was obviously addressed to the court, and not, as the plaintiff urges, to the jury, for the reply to the counsel was: “ I will not add to my charge at all; ” and to the jury the court said : “ Go on.” All this time the jury were in their box, having merely risen from their seats, and the court assumed a knowledge of the reason for the request of counsel. An explicit statement of it followed. It should, I think, have been listened to. It is the duty of counsel so to conduct his client’s cause that the jury may have the facts before them, under such instructions as to the law as are material to the case; and as under our system of judicature those instructions can be given only by the court, it would seem to be the client’s absolute right to have his counsel heard concerning them. In no other way can the suitor have the benefit of the machinery of the courts;' of the law as claimed by him if the response is *482 favorable, of an exception for review if it is refused. The right may be forfeited by the omission of counsel to speak in time, for the client is bound by his conduct, and as to that the court has a large discretion. Here it was not exercised. The jury were before the court, in their proper places. Its ear was withheld from the.counsel, not because he did not speak in season, but because, anticipating the object of counsel, the court decided to deny him. It may be that no suggestion would have changed that mind; but had it been heard, the defendant would have had either the benefit of an exception to that decision, or a ruling of the court in accordance with his views. To one or the other he was entitled ; and it was beyond the power of the court to deprive him of it. As a trial judge is bound to instruct the jury on each proposition of law submitted to him by counsel bearing upon the evidence (Zabriskie v. Smith, 13 N. Y. 322; Foster v. People, 50 id. 601), so it must be a legal right of counsel to submit such propositions (Pennock v. Dialogue, 2 Peters, 15), and its denial by the court a subject of exception and review upon appeal. The judge, therefore, erred in refusing the request of counsel, and the error is fatal to the judgment, unless it appears that there was no question in the case to be submitted to the jury (People v. Gray, 5 Wend. 289); or that the request came too late. Neither fact exists. The case was submitted to the jury as one for their determination, and the request was made before they left their seats, and before, so far as the record shows, any other step had been taken. That one was to be taken, i. e., that the jury were about to retire, is not sufficient. There is nothing to show that counsel did not seek the attention of the court as soon as possible after the close of the charge, and it appears affirmatively that he did so before they retired. This was sufficient. (State v. Catlin, 3 Vt. 530, 534.) I have reached this conclusion with reluctance, and with no disposition to interfere with the exercise of the large and necessary discretion intrusted to a trial judge. But a right valuable to litigants seems to have been denied; and for this reason there should, I think, be a new trial.