Butler v. Machen

65 F. 901, 13 C.C.A. 197, 1895 U.S. App. LEXIS 2273

• Court: Court of Appeals for the First Circuit
• Decided: January 17, 1895
• Docket: No. 110
• Status: Published

Opinion

PER CURIAM.

The first assignment of error having been waived, the only question to be decided is raised by the second assignment of error, which relates to the correctness of the charge to the jury of the court below. It is always likely to mislead, if a single expression in instructions to a jury is separated from its connection, and verbally criticised. In this case, strictly correct instruction as to the rule of preponderance ot‘ evidence was given, hut the presiding judge went further, and attempted to make that rule more intelligible to the jury. In so doing he made use of expressions which, it is argued, in effect authorized the jurors to substitute their personal opinions in respect to the rights of the litigants for the evidence produced at the trial; and the definitions of “opinion” given by various lexicographers are pressed in argument to show the error of such instruction. We should have no doubt about our duty if we construed the charge to the jury in the same way as the plaintiffs in error. But that construction can only be sustained by disregarding a large and important part of the language of the court in immediate connection with Avhich the expression “opinion” was used. In every sentence the jury Avas, in effect, and almost in terms, told that they were to be controlled by the preponderance of evidence. Bead together, the only fair and reasonable interpretation is that, in reaching their final conclusion and A’erdict, they must be governed by the preponderance of evidence, if they found in it any preponderance. There is no such uncertainty in the charge of the court as' warrants the theory that the jury may have been misled as to the rules of law by which they should be controlled in pronouncing their verdict. Judgment affirmed.