Harvey v. State

Hayes, J.,

delivered the following specially concurring opinion.

The opinion in chief omits to make mention of a question raised b'y the special bill of exceptions which, in my judgment, is most important to the rights- of litigants. While I concur in the opinion of the majority, yet it is my judgment that the opinion should assign as the important and prominent cause for reversal the action of the court as shown by the special bill of exceptions, since it is my judgment that the court exceeded its power, both when it refused to- pass on the instructions before argument and additionally when it refused to let the instructions be read to the jury until after the argument was made. I should feel bound under the law to insist on the reversal of any cause where the trial judge refused to act on the instructions until after argument to the jury, or where he has acted, but refuses to let the instructions be read to the jury until after the case is argued to them. Under the law I think the litigants have this right, and that it cannot, in any case, be denied them.

The special bill of exceptions shows the following, viz.: “Before the instruction's were passed upon by the court, the court ordered counsel to proceed to the argument. The defendant objected to the argument being made before the instructions were passed upon by the court and given to counsel, which objection the court overruled, to which action of the court the defendant then and there excepted and still excepts. And before beginning the argument for the defense, counsel for the defendant-requested the court to- give him the instructions for the defendant, in order that he might read them to the jury during *605 his argument. This the court refused to do, and said that the court would have the instructions read to the jury after the argument, when they had been fully passed upon, to which action of the court the defendant then and there excepted and still excepts. And again during the argument of the case by counsel for the defendant, and while the court held the instructions in his hand, counsel for the defendant turned to the court and requested of the court the possession of the instructions for tire defendant, which request the court refused, but required the instructions to be read to the jury after the argument, to which action of the court the defendant then and there excepted and still excepts.” Section 793 of the Code of 1906 clearly contemplates that the instructions governing the case shall be settled and read to the jury before argument. As was said in the case of Montgomery v. State, 85 Miss. 330 , 37 South. 835 , the correct practice is for the court to pass on the instructions before the argument to the jury begins. Of course, as the court holds in the above ease, on rare and emergent occasions it may become necessary for the court to give additional instructions not granted before the beginning of the argument; but such practice1 should be limited to “rare and emergent occasions,” and even then the court should allow the opposite party such additional privilege as to argument and preparation of countercharges as justice requires.

It is true that section 793 of the Code of 1906 does not say in express terms that the instructions shall be given by the court and read to the jury before the argument begins; but a review of the practice'which existed before there was any statute on this subject, if tradition be true, coupled with the contemporaneous construction of the statute by the courts as evidenced by the unbroken practice of giving and reading instructions to the jury before argument, constitutes enough precedent to declare that such is the law. Before there was any statute, it was the practice for the attorneys to read from law books to the jury in connection with their argument of the facts. In Hutch. Code, *606 -on page 893, c. 61, art. 17, it was, among other things, provided that, when counsel or attorneys differed as to' the law1, the judge was required to instruct the jury as to the law in writing, either before or after the argument, when requested so to do by either party. From this custom and this statute our present law was. ■evolved, becoming section 793, Code of 1906. The origin of the statute and the custom of practice abolished by it show that it was intended to remove from the field of dispute any question ■of law controlling the case, insofar as the jury were concerned, by making the law of the case emanate from the court alone; in short, to have the court settle the law of the case before the argument began. The instructions are intended to aid both ■counsel and the jury in the interpretation of the facts, and both ■the litigating parties and jury are entitled to have the whole ■case before them when argument is made, both of law and fact, and not left to be speculating as to what the court will declare as to the law after the facts have been fully argued. If there has been any exception to this unbroken practice, it may be considered as the exception proving the rule, and certain it is that ■no case like the one here presented has ever been before the ■court prior to this. The action of the court in this csae is without warrant under our law, in my judgment. It .approximates the practice in the federal courts, but the state practice is widely ■different; and, since the legislature has seen fit to make this ■change, the trial courts should not attempt any innovation on the well-settled rule.