Heydrick v. Hutchinson

Opinion by Mb. Justice Fell, The specific exceptions to the charge include in the aggregate nearly all that was said in submitting the cause to the jury, and while many of them are not well founded, the charge as a whole is fairly open to the objection that its tendency was to belittle and prejudice the defence and that in expression and tone it was not a judicial presentation of the case. A judge may express to the jury his opinion of the weight of the testimony and of its bearing and effect, and there are eases in which he should do so. If in his judgment the testimony is not sufficient to sustain a verdict it is his right, and it may be his duty, to end the trial by a peremptory instruction. But whatever he does in the course of a trial should be done directly, that his acts may be brought fairly for review by the party aggrieved. The plaintiff in this case brought ejectment to recover land sold for taxes. The controversy related to the validity of the sale, and that depended upon whether there had been personal property on the land liable to seizure, and whether the collector had made reasonably diligent effort to ascertain this before returning the property for sale. A writing, in artificially drawn, but apparently intended as an exoneration of the tax collector for having made the return, was put in evidence by the defendants to show an admission by the plaintiff which went to establish the regularity of the sale. Referring to this the learned judge said: “ There is no question here that Mr. Heydrick is the owner of that land, unless it is raised by the paper offered in evidence by the defendant.” This was not a conveyance of title; it had been given to another party after title had vested in the defendants. It had no bearing whatever upon the case except for the purpose for which it was offered. The effect of this instruction was to take from the jury all other testimony produced by the defendants and to direct their attention exclusively to a matter which at most only qualified what the plaintiff had testified to, and to leave to them the construction of a writing which was clearly for the court. Yet the whole testimony was subsequently submitted to them to pass upon. [213] This course, with the comments made upon the witnesses in the charge, was prejudicial to the defendants without giving them,the advantage of a distinct ruling. It is conceded that it can be sustained only upon the ground that the court would have been justified in directing a verdict for the plaintiff. If that had been done the question of the sufficiency of the evidence for the defendants could have been raised for argument and decision. The question is not properly raised here and cannot be considered. There may have been very little merit in the defence, but it was presented in a regular and orderly manner. If it was insufficient to sustain a verdict the case might have been properly withdrawn, but if there was an issue of fact for the jury to pass upon it should have been submitted to them judicially. The second and third assignments of error are sustained. It is unnecessary to notice the other assignments except to say that they do not seem to be well founded. The judgment is reversed and a venire de novo awarded.