Bannister v. Lucas

OPINION OP' THE COURT BY ROBERTSON, C.J. (Perry, J., Dissenting). The plaintiff obtained judgment against the defendant in an action upon a promissory note, and the defendant brings the case to this court upon exceptions which present certain questions involving the propriety of the instructions given to the — 223 — jury by the judge who presided, at the trial. We refer to the dissenting opinion of Mr. Justice Perry for a statement of the case setting forth the testimony and the instructions excepted to. We concur in the views there expressed with reference to the burden of proof being upon the party pleading payment or a counter-claim to prove them by a preponderance of the evidence. We also adopt the view that the judge’s charge "to the jury transgressed., in the respect pointed out, the provision of section 1798 of the Revised Laws which prohibits the trial judges from expressing an opinion to the jury upon the weight of the evidence adduced upon the trial of any case. The point raised by counsel for the plaintiff that that section of the Revised Laws is unconstitutional remains to be considered.. That section was originally section 1 of chapter 56 of the Session Laws of 1892. Though enacted several years prior to the annexation of these islands to the United ¡States and in connection with a system of trial by jury which in several respects did not. conform to the common law of England or the requirements of the Constitution of the United States, it was not one of the laws expressly repealed by the Act organizing the Territory of Hawaii, and we think the presumption that it is constitutional prevails. It is our duty to sustain its validity unless thoroughly convinced of its invalidity. We are not so convinced. That portion of the section which is claimed to be in conflict with the Seventh Amendment of the Constitution provides that “The judge * * * * shall in no case comment upon the character, quality, strength, weakness or credibility of any evidence submitted, or upon the character, attitude, appearance, motive or reliability of any witness sworn in a cause.” The clause is subject to the proviso “that nothing herein shall be construed to prohibit the court from charging the jury whether there is or is not evidence (indicating the evidence) tending to establish or to rebut any specific fact involved in the cause.” If the statute is open to more than one construction that construction which renders it free from constitutional objection, if available, — 224 — must be adopted. The first reported case dealing with this provision is Republic v. Pahu, 10 Haw. 74, decided in 1895. It was there said, “This Act restricted the powers formerly held and exercised by the judge in instructing the jury and commenting on evidence and witnesses, and throws the whole burden upon the jury to weigh the evidence and credibility of witnesses without assistance from the court and generally their vérdict must stand unless it clearly appears that they, the jury, have abused their powers and judgment, and could not have based their verdict upon the evidence.” In Republic v. Ah Ping, 10 Haw. 459, the defendant was convicted upon a charge of larceny. ' It appeared that a witness had testified that on the morning after the theft the defendant had told him that a twenty-doll ar piece and some silver had been stolen. The complaining witness.testified that, he had said, nothing to the defendant about a twenty-dollar piece. The court in charging the jury said that if they believed that the defendant, made the statement attributed to him, it “needs to be accounted for” as it had “a tendency to prove that the defendant was the one who stole the money.” The jury were also instructed to acquit the defendant if upon the whole evidence in the case they were not convinced beyond a reasonable doubt of the defendant’s guilt. This court overruled the exception to the charge saying, “We think, however, that although a part of the instruction may go too far taken by itself, the instruction as a whole comes within the proviso in the latter part of the section above quoted, That nothing herein shall be construed to prohibit the court from charging the jury whether there is or is not evidence (indicating the evidence) tending to establish or to rebut any specific fact involved in a cause.’ ” In Republic v. Kapea, 11 Haw. 293, upon an indictment for murder in the first degree, an instruction to the jury that under the evidence they should find a verdict of guilty as charged or of not guilty was held proper and authorized under the proviso contained in the statute. In Territory v. Yoshikawa Dengiro, 15 Haw. 64, this court sus — 225 — tained an exception to an instruction which was held to be unfair. It was there said; “It is contended by the attorney general that the court had a right to make a summary of the evidence to the jury. This may be true but a summary that only considers the evidence of one side and totally ignores that of the other cannot be said to be a fair summary.” And included in a quotation there made from an Ohio case we find this state¡ment: “We assume it to be the law, that, while it is not, in this state, the duty of the trial judge to sum up the evidence to the jury, yet, it is not improper, to do so providing it is fairly done, and all’ the material evidence on both sides is fairly presented.” See Kaleikini v. Waterhouse, 19 Haw. 359, 361, 362; also Lyman v. Hilo Tribune, 13 Haw. 453, 456. In re Notley Will, 15 Haw. 700, decided June 3, 1904. It was there held that the statute does not prevent a trial judge from directing a verdict when there are no facts shown upon which the jury could properly base a verdict. In that case, for the first time, a suggestion of the possible unconstitutionality of the provision as to the judge’s commenting on the evidence was made. In Territory v. Schilling, 17 Haw. 249, where it was held that a certain comment by the court upon the evidence was not sufficient to cause a reversal of the judgment, it was said, “We do not think, however, that the remark of the court concerning this testimony, although perhaps open to criticism, is likely to have affected the result or requires a reversal of judgment. If the statute required, as we do not think it does, a reversal of judgment for any comments whatsoever made by the court upon the evidence, then it would be requisite to consider whether the statute is constitutional in limiting the right of a common law trial by jury.” In Territory v. Kawano, 20 Haw. 469, it was held that remarks and instructions of the court to the jury which are argumentive comparisons relative to the credibility of witnesses, commending one and disparaging the other,' their testimony being vital and in conflict, constitute reversible error. The foregoing cases show that while the statute has been — 226 — viewed with appropriate strictness with respect to its prohibition of the trial judges from commenting upon the evidence, that part of it which authorizes the court to instruct the jury whether there is or is not evidence tending to establish or rebut any specific fact involved has been given a liberal operation. Comment on the evidence such as would be unlikely to affect the verdict has been held not violative of the statute, and the intimation (in the Yoshihawa Dengiro case) that the statute does not prevent the trial judge from summing up the evidence was so strong as to practically amount to a ruling. We think it may properly be said, therefore, that the statute does not preclude the judge presiding at the trial of a case from stating or summing up the evidence, or portions of it, and explaining to the jury its bearing upon the questions of law involved, and thus illuminating his instructions as to the law of the case and making clear the actual issues, provided such statement is perfectly fair and impartial and does not disclose to the jury the judge’s opinion as to any controverted fact, or the views entertained by him as to the weight of any particular evidence or the credibility of any individual witness. An exhaustive review of the decisions of other courts under statutes similar to ours is not possible because the statutes of many of the States are not at hand, but it appears to be generally held that a statute or constitutional provision which merely forbids comment upon the evidence and witnesses does not prohibit the judge from summing up the evidence. See 1 Blashfield, Instructions to Juries, Sec. 53; 38 Cyc. 1653, 1654; Com. v. Barry, 9 Allen 276, 279; Com. v. Larrabee, 99 Mass. 413, 416; Plummer v. Boston Elevated Railway, 198 Mass. 499, 515; State v. Day, 79 Me. 120, 124, 125. Apart from the question of the validity of the statute from a constitutional standpoint the court is hot concerned with the policy of the legislation under review. There is room for a difference of opinion on the question whether the proper administration of justice is furthered by the enactment of a statute — 227 — such as ours. History records the struggle which was long maintained in England in behalf of the independence of the jury. It will hardly be denied that the giving of the trial judge’s opinion as to the evidence and facts must have great weight, and, sometimes, controlling weight, with the jury even though they be instructed that they are the sole judges of the facts. It may readily be conceived that in some cases, where the evidence is conflicting and the question is a close one, jurors are likely to surrender their own opinions to that of the judge. On the other hand, it has been contended with much force that the jury, composed of men unaccustomed to sifting and weighing evidence, need the assistance of the trained mind of the judge to the extent of having his opinion on the facts in order to enable them to intelligently and properly discharge their important duty of deciding questions of fact. We will not attempt to restate the arguments which have been made on the two sides of the question. In a critical article contributed to the. American Law Review in the fall of 1889 (Vol. 23, p. 781) by Henry B. Brown, then district judge and afterwards a justice of the United States Supreme Court, referring to certain statutes regulating jury trials, which he said had “become fashionable,” which prohibit the judge from charging or commenting on matters of fact, and require all charges to be in writing, and provide for the giving of only such instructions as have been requested, either with or without modification, and require the submission of special questions to the jury, the learned author said, “Perhaps the first of these laws, prohibiting the judge from charging with respect to matters of fact is the least objectionable, both upon the score of constitutionality and expediency.” And he conceded “a great difference of opinion, even among the leading men of the profession, with regard to the propriety of a judge expressing his views of the testimony to the jury.” The question, then, is whether this statutory provision as heretofore construed and now understood is in conflict with the — 228 — Seventh Amendment of the Constitution which declares that “in suits at common law, where the value in controversy shall exceed twenty' dollars, the right of trial by jury shall be preserved.” There seems to be no reported case in which the constitutionality of a similar statute has been passed upon. After the exceptions in this case were argued counsel were requested to further,, brief the constitutional question, and at the request of the court, the question being one of general importance, briefs have been submitted by the attorney general and the city and county attorney of Honolulu. The diligence of counsel has failed to bring to light a single case in which the question was discussed. This fact is of great significance. It is said that the rule prohibiting trial judges from commenting on the facts and expressing an opinion on the weight of the evidence prevails in a majority of the States. 38 Cyc. 1646. In a few of the States, five we believe, the subject is covered by constitutional provision. And in a few we believe the practice is followed without any constitutional or statutory requirement. In several of the States in which the constitutions contain provisions preserving the right of trial by jury similar to the provision of the Seventh Amendment statutes more or less lihe ours have been in force for a great many years. In North Carolina, for example, since 1796, State v. Lipsey, 14 N. C. 485; in Texas since 1853, T. & P. R. Co. v. Murphy, 46 Tex. 356; in Massachusetts since 1860, Com. v. Barry, supra; and in Maine since 1874, State v. Day, supra. In Hopt. v. Utah, 104 U. S. 631, and 114 U. S. 488, judgment of conviction upon a charge of murder was twice reversed because the trial judge had charged the jury orally in violation of a provision of the code of the Territory of Utah which required that the charge should be reduced to writing before being delivered. And in the same case in 110 U. S. 574, the judgment was reversed for violation of the provision of the code of the Territory that the judge “may state the testimony and declare the law,” but “must •not charge the jury in respect of matters of fact,” the court — 229 — saying, “The prisoner had the right to the judgment of the jury upon the facts uninfluenced by any direction from the court as to the weight of evidence.” It is true the question of ■the constitutionality of the statute was not raised in that case, and we regard that fact as significant. And while the Supreme Court would not be likely to question the constitutionality of an act of Congress when the question had not been agitated by counsel, we doubt whether it would have refrained from suggesting the point as to the legislation of the Territory had it entertained the opinion that it was invalid. About twenty-three years have elapsed since the publication of Mr. Justice Brown’s article, and thirteen years have passed since the decision of the ease of Capital Traction Co. v. Hof, 174 U. S. 1, the case principally relied on by the appellee, yet during this time no attempt has been made so far as we have been able to ascertain to> get rid of the statute in any jurisdiction where it has been enacted either by repealing it or having it declared unconstitutional. This would seem to indicate an opinion on the part of the profession generally that the statute is not obnoxious to the constitutional'requirement. It must be regarded as settled that the Seventh Amendment applies to the Territories. Thompson v. Utah, 170 U. S. 343 Black v. Jackson, 177 U. S. 349; Rasmussen v. United States, 197 U. S. 516. And that “the right of trial by jury” which the Amendment preserves is that right as it existed at common law. But was the practice of charging the jury upon the facts a fundamental element of the right itself or merely ah incident of that right growing out of the habit of the English judges in summing up the case to comment on the evidence and give their views thereon to the jury ? The Federal Constitution is regarded as an enumeration of general principles, designed to endure for all time, to be read in the light of the common law, and to be applied and adapted to new conditions as they may arise. In this view the ¡Seventh Amendment should not be, and, we believe, has not been, regarded as having been designed to — 230 — perpetuate trial by jury as it was practiced in England at'the time of the adoption of the Constitution in all its details. It was the right, not necessarily all the incidents of that right, that was intended to be secured. The right itself was and is preserved, but its incidents are subject to legislative control, and the practice in applying and the mode of enforcing the right may be altered to meet changed conditions. Legislation which merely regulates the exercise of the constitutional right and does not rob it of any of its essential ingredients does not constitute an infringement of the right. The constitutional guaranty of this right did not necessarily extend to an accidental element as distinguished from an inherent part of the institution. Dowling v. State, 5 S. & M. (Miss.) 664, 682, 685; Warren v. Com. 37 Pa. St. 45, 52, 53. Com. v. Dorsey, 103 Mass. 412, 418, 419; Foster v. Morse, 132 Mass. 354; Stokes v. People, 53 N. Y. 164, 173. In Peirson v. Boston El. Ry. Co., 191 Mass. 223, 230, the court quoted the case of Capital Traction Co. v. Hof, to the effect that “a trial by jury of twelve men in the presence and under the charge and supervision of the judge empowered to instruct them on the law,” and “to set aside the verdict if in his opinion it is against the law or the evidence,” and held that a statute providing that a verdict should not be set aside except upon motion stating the reasons relied upon in its support did not conflict with the clause of the constitution of Massachusetts which secured the right of trial by jury. In State v. Withrow, 133 Mo. 500, 519, the court said that the constitutional declaration that “the right of trial by jury, as heretofore enjoyed shall remain inviolate,” means “that all the substantial incidents and consequences which pertained to the right of trial by jury are beyond the reach, of hostile legislation, and are preserved in their ancient substantial extent as existing at common law.” If, therefore, we are dealing with a mere insubstantial incident and not with a constituent part of the fundamental right, the Constitution has not been violated if the legislation has left — 231 — the right practically intact. And we believe the right is left intact by the statute and practice of this Territory. It has long been settled that in the courts of the United States the trial judges may, if they deem it advisable, comment upon the evidence 'and express their opinions relative thereto to the jury, provided the comment is not unfair and the decision of the facts is left absolutely to the jury. Carver v. Astor, 4 Pet. 1; Kelly v. Jackson, 6 Pet. 622; Nudd v. Burrows, 91 U. S. 426 ; Railroad v. Putnam, 118 U. S. 545; United States v. Railroad, 123 U. S. 113; Starr v. United States, 153 U. S. 614. Also that state statutory and constitutional provisions regulating the practice in jury trials do" not affect the Federal practice. Nudd v. Burrows, supra; St. Louis R. Co. v. Vickers, 122 U. S. 360; Indianapolis R. Co. v. Horst, 93 U. S. 291. But it does not necessarily follow that the practice heretofore observed in the Federal courts cannot be changed by Congress, or that the 'Seventh Amendment requires that the practice shall be followed in the courts of the Territories. Blackstone described the charging of the jury as follows: “When the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel and all others, sums up the whole to the jury; omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and giving them his opinion in matters of law arising upon that evidence.” 3 Bl. Com. 375. Judge Cooley said, “Many of the incidents of a common law trial by jury are essential elements of the right. The jury must be indifferent between the prisoner and the Commonwealth; and to secure impartiality challenges are allowed, not only for cause, but also peremptory without assigning cause. The jury must also be summoned from the vicinage where the crime is supposed to have been committed. * * * The jury must unanimously concur in the verdict. * * * And the jurors must be left free to act in ac — 232 — cordanee with the dictates of their judgment. The final decision of the facts is to rest with them, and interference1 by the court with a view to coerce them into a verdict against their convictions is unwarrantable and irregular.” Cooley, Con. Lim. (7th Ed.) 459, 460. Neither of those eminent authorities refer to the giving to the jury the judge’s opinion on the facts as an element of the right of trial by jury. It has been referred to as “practice” in a way as to differentiate it from a matter of fundamental right. See 1 Blashfield, Instructions to Juries, Sec. 53. In Railroad v. Putnam, supra, it Was said, “In the courts of the United States, as in those of England, from which our practice was derived, the judge, in submitting a ease to- the jury, may, at his discretion, whenever he thinks it necessary to assist them in arriving at a just-conclusion, comment upon the evidence, call their attention to parts of it which he thinks important, and express his opinion .upon the facts.” 118 U. S. 553. “The English practice and also the Federal practice permit this to be done, but not ours.” Withers v. Lane, 144 N. C. 184, 190. In Capital Traction Co. v. Hof, supra, Mir. Justice Gray, speaking for the court, defined the common law right of trial by jury as follows: “ ‘Trial by jury’ in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence.” 174 U. S. 13, 14. The case of Lamb v. Lane, 4 Oh. St. 167, 179, was there quoted from wherein this language was used, “the word ‘jury’ in section 19 of article 1, as well as in other places233 in the constitution where it occurs, means a tribunal of twelve men, presided over by a court, and hearing, the allegations, evidence and arguments of the parties.” The Opinion of Justices, 41 N. H. 550, was also quoted from wherein this language was used, “A jury for the trial of a cause was a body of twelve men, * * * who, after hearing the parties and their evidence, and receiving the instructions of the court relative to the law involved in the trial, and deliberating, when necessary, apart from all extraneous influences, must return their unanimous verdict upon the issue submitted to them.” There is also a quotation from United States v. Bags of Merchandise, 2 Sprague 85, 88, including this: “Now the trial by jury was, when the Constitution was adopted, and for generations before that time had been, here and in England, a trial of an issue of fact by twelve men, under the direction and superintendence of the court. This direction and superintendence was an essential part of the trial.” None of those quotations contain any statement in regard to the court’s expressing its opinion on the facts to the jury. The quotation from Hale’s History of the Common Law, that the judge is able “in matters of fact, to give them great light and assistance, by his weighing the evidence before them, and observing where the question and knot of the business lies; and by showing them his opinion even in matter of fact, which is a great advantage and light to laymen,” seems to us to be a description of the English practice rather than an enumeration of the fundamentals of the right of trial by jury. Justice Gray’s language that at common law the trial judge was empowered to “advise” the jury on the facts does not necessarily mean that the practice of, giving them his opinion on the facts was an inherent part of the right of trial by jury. Full effect may be given to the language of the court in the case of Capital Traction Co. v. Hof by a holding that the power referred to, to advise on the facts, is the power to state or sum up the .evidence. This is in accord with the procedure described by — 234 — Blackstone, and it does not include the expressing of an opinion on the weight of the evidence or thq credibility of the witnesses which only is prohibited by our statute. We are of the opinion, therefore, that section 1798 of the Revised Laws is not in conflict with the Seventh Amendment of the Constitution. J. Ligiitfoot for plaintiff. W. B. Lymer (Thompson, WilderWatson & Lymer on the brief) for defendant. Defendant’s exceptions Nos. 8, 9 and 10 are sustained; the judgment is vacated; and a new trial granted.