Setchel v. Keigwin

Andrews, G. J. Each of the errors assigned in this case is a portion of the charge of the judge to the jury. It is claimed that each was improper and erroneous. The charge consisted wholly of a discussion and comments upon the evidence which was before the jury. The account books of the plaintiffs’ decedent had been laid in and were evidently in the presence of the judge and the jury at the time he was speaking. The case turned upon their correctness, and in reference to these books and to the evidence which had been offered by the parties the judge used the language which is complained of. “ It is competent in all cases, and in some highly expedient, for the court not only to discuss but to express its opinion upon the weight of the evidence, without however directing the jury how to find the facts ; and' this is a right necessarily limited only by its own discretion.” Storrs, J., in First Baptist Church v. Rouse, 21 Conn., 167. All the expressions of the charge contained in the several assignments of error fall clearly within the rule so laid down by Judge Stores, except the second one, which requires a somewhat more careful examination. It is that “in the absence of contradiction, explanation, or some suspicion cast upon their accuracy by the books themselves, or from extraneous circumstances, entries of this sort, made in the ordinary course of business, are presumptively correct.” The account books of Mr. Goon had been put in evidence, The entries therein were in his handwriting. He was dead, They were admissible therefore, not because they were proved by the oath of the person who made them, but because they were the written entries of a deceased person and so admissible under section 1094 of the Gen. Statutes, If from the language quoted the court could have been un [479] derstood by the jury as laying down a rule of law as to the weight to be given to entries of this sort, then it was clearly wrong. As matter of law there is no presumption as to the correctness of these entries, nor is there any presumption that the)’ are incorrect. The statute makes the written entries of deceased persons admissible in evidence in certain cases, but does not fix any degree of weight to be given them. They may have much or little weight, or no weight at all, as the jury, or other trier, shall determine in view of all the circumstances. In the nature of things some entries would be much more likely to produce conviction than others, not as matter of law but as matter of fact. Entries made in regular books of account, in regular and consecutive order, apparently in a due and orderly course of business, with successive dates, intermingled with other entries which appeared fair, without, interlineation, erasure or change, and when there were no extraneous circumstances to excite suspicion, would be entitled to much greater weight as evidence than entries in which none or few of these characteristics were present. Such entries might fairly be said to be presumptively correct; not because there is any rule of law to that effect, but because the enumerated circumstances would create that presumption. Precisely this is the effect of the quoted portion of the charge when read in connection with what precedes and follows it. Earlier in the charge the court had called the attention of the jury to the circumstances from which the plaintiffs claimed that the entries were corroborated, and also to those from which the defendant claimed that the entries were rendered suspicious, and then told them that, from all the circumstances surrounding the transaction and from the inferences reasonably to be drawn therefrom, they were to arrive at their conclusion. And this was substantially repeated later in the charge. Under this instruction of the court each juror must of necessity have determined for himself whether these corroborating circumstances existed or not. If they did exist then the presumption of which the court spoke would also exist. “ This rule controls the decisions of men in de [480] termining questions of fact for their own purposes: no contrary rule can be laid down for the guidance of a jury.” Lillibridge v. Barber, 55 Conn., 369. See also Fitch v. Waite, 5 Conn., 122; Dexter v. McCready, 54 id., 171; Comstock’s Appeal from Commissioners, 55 id., 214; Rowell v. Fuller’s Estate, 59 Verm., 688; Greenleaf. v. Birth, 9 Peters, 292. We think the court could not have been misunderstood, and that there is no error. In this opinion the other judges concurred, except Carpenter, J., who dissented.