Bannister v. Lucas

• Decision Date: 10 August 1912
• Citation: Bannister v. Lucas, 21 Haw. 222 (Haw. 1912)
• Parties: MARY JOSEPHINE HATTIE BANNISTER v. MARY N. LUCAS.
• Court: Hawaii Supreme Court

21 Haw. 222

MARY JOSEPHINE HATTIE BANNISTER

v.MARY N. LUCAS.

Supreme Court of the Territory of Hawai‘i.

Argued April 15, 1912.

Decided August 10, 1912.

EXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT.

(Perry, J., Dissenting).

Syllabus by the Court

Payment and counter-claim are affirmative defenses and the burden is upon the party pleading them to prove them by a preponderance of the evidence.

An instruction given by a trial judge to a jury from which it may reasonably be inferred that the judge regards certain material evidence as unworthy of credence or of less weight than other opposing evidence is a comment on the character, strength and credibility of the evidence, and the giving of such an instruction is a violation of section 1798 of the Revised Laws.The error is not cured by an instruction that the judge had “no right to comment upon the testimony nor to make any findings of fact.”

Section 1798 of the Revised Laws, providing 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 witnesses sworn in a cause; provided, however, 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 rebut any specific fact involved in the cause,” does not impair the right of trial by jury, and does not contravene the Seventh Amendment of the Constitution of the United States.

J. Lightfoot for plaintiff.

W. B. Lymer( Thompson, Wilder, Watson & Lymer on the brief) for defendant.

ROBERTSON, C.J., PERRY AND DE BOLT, JJ.

OPINION OF THE COURT BY ROBERTSON, C.J.

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 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, 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 verdict 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-dollar 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 casethey 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 sustained 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 statement: “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.”SeeKaleikini 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 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 Yoshikawa 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...