Harvey v. Graham

46 N.H. 175

• Court: Supreme Court of New Hampshire
• Decided: July 15, 1865
• Status: Published

Opinion

Bartlett, J.

After the case had been submitted to the jury and they had retired for deliberation as to their verdict, the question of reopening the case for further and new instructions to the jury as to matters of law was. as much addressed to the discretion of the court, as the question of re-opening it for further and new evidence as to matters of fact. Smith v. Keen, 26 Me. 422; Booth’s Case, 4 Gratt. 526; see Turner v. Yates, 16 How. 25; Bassett v. Salisbury, 28 N. H. 458; 3 Chitt. Prac. 914. Any other rule of practice would prove very embarrassing in the administration of justice. The jury requested merely a repetition of certain instructions, which had already been given by the court without any exception on the part of the defendant, and they were recalled for that purpose only ; and when those instructions were repeated, it was quite as much within the discretionary power of the court to refuse to give the new instructions asked, as it would have been, before the return of the jury for the single purpose stated, to have declined to recall them to give new instructions. Prosser v. Henderson, 11 Ala. 484, (8 U. S. Dig. 350, 18;) and see Weeks v. Elliott, 33 Me. 488. In Yeldell v. Shinholster, 15 Geo. 189, the instructions, which the court were requested to give when the jury came in for a repetition of the charge, seem to have been in substance the same that the court had been asked and had erroneously refused to give at the time- of the original charge. Such an exercise by the court, at the trial term, of their discretionary power, as appears in the present case, will not ordinarily be revised at the law term. Riddle v. Gage, 37 N. H. 520; Thayer v. Elliott, 16 N. H. 102; Wells v. Burbank, 17 N. H. 412.

There must be

Judgment on the verdict.