Bradway v. Waddell
Decision Date | 25 April 1884 |
Docket Number | 10,895 |
Citation | 95 Ind. 170 |
Parties | Bradway et al. v. Waddell et al |
Court | Indiana Supreme Court |
From the Henry Circuit Court.
Judgment reversed.
W Grose, for appellants.
J. M Brown, J. Brown and W. A. Brown, for appellees.
The evidence in this case, although taken by a stenographer, forms part of the bill of exceptions. It is incorporated in the bill at the proper place, and appellees' counsel are, therefore, in error in supposing that it is not in the record. No matter by whom the evidence is taken down, it is in the record, if fully and accurately embodied in the bill of exceptions, duly signed by the judge and properly filed.
Neither instructions nor instruments of evidence can be brought into the record by merely making them part of the motion for a new trial. In the present case we must look to the bill of exceptions to see what requests to instruct were made, and what instructions, oral and written, were given by the court.
The bill of exceptions contains this statement: "The plaintiff and defendants also having at the proper time requested the court to instruct the jury in writing only, before the argument to the jury." It is further shown by the bill that the court, at the time of reading the written instructions to the jury, orally instructed them upon the subject of nominal damages and as to the form of their verdict, and that the appellants at the time excepted "because the same was oral and not in writing."
Our statute provides that "when the argument is concluded the court shall give general instructions to the jury, which shall be in writing and be numbered and signed by the judge, if required by either party." The statute is in terms mandatory, and from the earliest to the latest cases it has been so construed. It has been uniformly held that the trial court, when properly requested, is bound to put all of its instructions in writing. In Townsend v. Doe, 8 Blackf. 328, decided in 1846, it was held that the statute was mandatory, and such was the holding in the cases of McClay v. State, 1 Ind. 385; Kenworthy v. Williams, 5 Ind. 375; Lung v. Deal, 16 Ind. 349. In the case of the Rising Sun, etc., Co. v. Conway, 7 Ind. 187, a like ruling was made and the court said: The holding in Laselle v. Wells, 17 Ind. 33, was that all instructions must, when duly requested, be in writing, and that an error in giving verbal instructions is not cured by afterwards reducing the verbal instructions to writing; and to the same effect is the case of Widner v. State, 28 Ind. 394. It is worthy of note that in the case just cited it was held that giving a verbal instruction was error, notwithstanding the fact that it was favorable to the appellant. One of the most careful and accurate judges that ever occupied a place in this court, speaking for the court, said: Davison, J., in Riley v. Watson, 18 Ind. 291. These utterances of able judges who knew the necessity for the law requiring all instructions to be in writing, who were cognizant of the evils growing out of a different practice, and who were acquainted with the purpose of the framers of the law, are not to be lightly regarded; on the contrary, every principle of law requires that they be treated with the highest respect.
It was well and strongly said, in a case from which we have already quoted, that Rising Sun, etc., Co. v. Conway, supra. It surely is no hardship to require the court to do exactly what the law commands and the parties request. A line or two more costs but little labor, and prevents confusion, wrong, and error. There is really no excuse for refusing to do what the law commands, and what secures certainty and prevents needless wrangling. But, after all, a sufficient reason for the uniform ruling of this court is, that the law commands that all instructions shall be in writing, and the more closely courts, as well as everybody else, are held to strict obedience to law the better. It is not the older cases only that recognize and enforce the rule requiring all instructions to be written out in full, for the later cases are not less emphatic. Feriter v. State, 33 Ind. 283; Meredith v. Crawford, 34 Ind. 399; Gray v. Stivers, 38 Ind. 197; Hardin v. Helton, 50 Ind. 319; Bosworth v. Barker, 65 Ind. 595; Provines v. Heaston, 67 Ind. 482; Shafer v. Stinson, 76 Ind. 374; Davis v. Foster, 68 Ind. 238. In the case of Provines v. Heaston, supra, it was held that it was error to orally substitute the word "fairly" for the word "strictly." It was held in Bottorff v. Shelton, 79 Ind. 98, and in Smurr v. State, 88 Ind. 504, that it was error to read from the statute or other book, and that all instructions must be written out in full and filed by the court. The ruling in these cases is well sustained, not only by our own cases but everywhere else under statutes like ours. In Hopt v. People, 104 U.S. 631, the trial court indicated a place for the insertion of an extract from a book, and this was held error, the court saying: ...
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