Nelson v. Dodge

116 Mass. 367, 1874 Mass. LEXIS 116

Opinion

Colt, J.

The question which the jury came in to ask, plainly had reference to the second clause in the instructions which were given when the case was committed. The answer of the judge to this question stated the law correctly. Taken in connection with the previous instructions, it implied the necessary element of the plaintiff’s acceptance of the note unindorsed in payment. The additional instruction requested by the plaintiff was but a repetition of a proposition which had been once stated to the jury with more fulness, and there was no apparent necessity for its repetition. In the opinion of a majority of the court, there is nothing in the form of the question put, or in the answer given, which justifies the inference that the judge was understood to modify the propositions previously stated, or that his answer was to be considered as disconnected from those propositions.

If properly taken at the time, exceptions lie to instructions which are given to a jury after a case has been committed to them and they have retired for deliberation. But whether those instructions be given in answer to the questions of the jury,'or of the judge’s own motion, it is proper in most cases that the transaction be confined to communications passing between them. A fresh discussion of the law or the evidence on the part of counse. in the presence of the jury cannot be had, unless allowed by the judge in his discretion. Nor is the judge required to give additional instructions by way of explanation or modification of those already given at the request of either party. In such matters much must be left to the discretion of the judge, who can best see at the time what may prejudice and what advance an intelligent and honest decision of the questions at issue. Kellogg v. French, 15 Gray, 354. Exceptions overruled.