Butler v. Webster

106 A. 283, 79 N.H. 125, 1919 N.H. LEXIS 2

• Court: Supreme Court of New Hampshire
• Decided: January 7, 1919
• Status: Published

Opinion

Plummer, J.

In the trial of this action the defendant, an executor, did not elect to testify. This prevented the plaintiff from testifying. P. S., c. 224, s. 16. In commenting upon this situation the plaintiff’s counsel made the remarks to which exception was taken. It was the legal right and perhaps the duty of the executor not to elect to testify, and no inference of any kind could legally be drawn from that act. The reference of the plaintiff’s counsel to the failure of the executor to elect to testify, and the consequent exclusion of his client as a witness was doubtless for the purpose of inducing the jury to draw or to refrain from drawing certain inferences from the failure of the parties to testify. So far as appears, counsel did not inform the jury what inference, if any, he claimed should be drawn from the facts. What inference can be drawn is a question of law. Mitchell v. Railroad, 68 N. H. 96, 117; Seely v. Insurance Co., 73 N. H. 339, 343; Potter v. Moody, ante, 87. Upon this proposition the jury were fully instructed that no inference should be drawn against either party because of his failure to testify, and it is presumed, in the absence of evidence, that the jury followed the court’s instructions. Davis v. Railroad, 75 N. H. 467, 470; Turner v. Company, 75 N. H. 521, 522; Janvrin v. Powers, ante, 44.

Exception overruled.

All concurred.