Mode of giving. d. Mode of giving. 30. Oral and written instructions. By an act approved January 15, 1849, all instructions from district judges to petit juries are to be given in writing. The law took effect by publication in newspapers, January 31, 1849. Pierson v. Baird, 2 G. Gr. 235. 31. But under the Code of 1851, prior to the Revision of 1860, to give oral instructions did not constitute sufficient cause for reversal. State v. Leiber, 11 Iowa, 407. Aliter, if either party demanded the instructions to be reduced to writing. Stratton v. Paul, 10 Ibid. 139. 32. Under the Revision of 1860, however, it is error for the court to orally instruct the jury, or to orally explain or modify an instruction.* Head & Metzger v. Langworthy & Bros., 15 Iowa, 235. 33. But where an oral instruction is not excepted to on that ground, at the time, the error will be regarded as waived. The State v. Sipult, 17 Iowa, 575. 34. Instructions asked by counsel. A court need not adopt the language of the counsel in a charge to a jury. It may put aside the instructions asked and charge the jury in its own language; and the party can only assign for error an incorrect ruling upon the law. Rusch V. The City of Davenport, 6 Iowa, 443. 35. The practice of giving instructions to the jury, as framed by counsel, is condemned. The better practice, as a general rule, is for the judge to put aside the instructions asked by the The provisions of the Revision on the subject of instructions, reprinted as sections 2784, 2785, 2786, 2787, 2788, 2789, Code of 1873, are as follows: SECTION 3051. When the argument is concluded, either party may request instructions to the jury on points of law, which shall be given or refused by the court. Instructions asked shall be stated in writing by the party, if any one of the other party, or if the court require it. The party on whom is the burden of proof as aforesaid shall first demand his instructions, then the other party, and the first party may then ask such alone as go in reply. SEC. 3052. There shall be but two instructions at most, written on one sheet of paper, and the paper shall be written only on one side thereof, and the writer shall leave a margin on the left hand side thereof of about two inches, and each instruction demanded shall distinctly and intelligibly refer to the cause of action to which it is intended to be applied, if there be several, or if one cause of action be divisible into different parts, then to such part as it is intended to be applied. SEC. 3053. If the court refuse a written instruction as demanded, but give the same with a modification which the court may do, such modification shall not be by interlineation or erasure, but shall be well defined and shall follow some such characterizing words as changed thus," which words shall themselves indicate that the same was refused as demanded. respective counsel, and cover the whole ground of the controversy in a corrected and methodical charge of his own, stating the questions of fact to be decided, and the law applicable thereto, under the issues and the evidence. The State of Iowa v. Collins, 20 Iowa, 85. 36. Instructions must be read. Either party has a right to insist upon having the instructions read to the jury, and such is the better practice. Langworthy v. Myers, 4 Iowa, 18. And under section 3054 of the Revision they must be so read without any request. See note to § 32, ante. 37. Further instructions. As to whether the court has on its own motion the right to further charge the jury after they have retired, quere. State v. Pitts, 11 Iowa, 343. 38. But where the jury could not agree and were brought into court, whereupon one of them stated that "he thought they did not all agree upon the law, and the court, against defendant's objection, proceeded to give them some further instructions, it was held, that the action of the court was warranted. Ibid. 39. Must be given in open court. Further instructions to the jury after being recalled should be given in open court, so that an opportunity may be offered to know what they are, except to them if deemed objectionable, and ask others explanatory if thought necessary. O'Connor v. Guthrie & Jordan, 11 Iowa, 80. 40. And not in absence of party. After a jury retire to consider of their verdict, and come into court at an unusual hour, for further inthe jury, and must announce them as given, and shall announce as refused without reading to the jury, all those which are refused, and must write the words "given or refused,' as the case may be, on the margin of each instruction. SEC. 3055. If the giving or refusal be excepted to, the same may be without any stated reason therefor, and all instructions demanded must be filled, and shall become part of the record. in favor of either party may be abandoned by such SEC. 3056. Any decision or instruction of the court party at any time before the case is committed to the jury, unless testimony calculated to influence the minds of the jury has been afterward admitted or rejected, or when the opposite party cannot be placed in the same position which he would have occupied had such decision or instruction not been given. SEC. 3057. After argument, the court may also, of its own motion, charge the jury, which charge shall be exclusively in writing. SEC. 3058. The charge shall be expressed in paragraphs, and numbered consecutively. shall be deemed approved, unless excepted to before SEC. 3059. Every part or paragraph of the charge the retiring of the jury; if so excepted to, that fact and by whom excepted to, whether by plaintiff or defendant, shall be stated by the court, on the margin, against such instruction or part of the charge. SEC. 3060. The court shall not make any oral exSEC. 3054. The court must read over all the instruc-planation of any instruction or charge. tions which it intends to give and none others to Form and Subject-matter -Pertinency of Instructions. structions, it is irregular to give such instruc-law against mob violence, it cannot be regarded tions in the absence of a party. Davis v. Fish, as calculated to mislead the jury. Ibid. 2 G. Gr. 447. II. FORM AND SUBJECT-MATTER. 41. Assumption of facts. Although an instruction, requested by counsel, may state the law correctly, it should not be given, if it assumes facts to be proved as true which are in issue before the jury. Luman v. Kerr's admr., 4 G. Gr. 159: Howes v. Carver, 3 Iowa, 257; Houston v. The State, 4 G.Gr. 437; Tifield v. Adams, 3 Iowa, 487; Keenan v. The Mo. State Mutual Ins. Co., 12 Ibid. 126; Russ v. The Steamboat War Eagle, 14 Ibid. 363; Same Case, 9 Ibid. 374; Napper v. Young, 12 Ibid. 450. 42. The charge of the court should be confined strictly to matters of law. The court should not comment on the evidence, and instruct what facts are, and what are not proved. Russ et ux. v. The Steamboat War Eagle, 9 Iowa, 374. 43. Instructions should not assume a state of facts as established, or as likely to be found by the jury. Robinson v. Chapline, 9 Iowa, 91. 44. Construction of instrument. Where an instruction extends merely to the legal effect and meaning of an instrument, it cannot be objected to as an instruction upon the facts in the case. Lucas v. Snyder, 2 G. Gr. 499. 45. As to sufficiency of facts to constitute offense. It is within the province of the court to instruct the jury whether the facts claimed to be proven, if believed, constitute the offense charged. Pollard v. The State of Iowa, 2 Iowa, 567. 46. As to facts not controverted. It is not erroneous to assume a fact in an instruction, which is not denied, and in relation to which there is no conflict of evidence. Hughes v. Monty, 24 Iowa, 499. 47. Collation of facts. When the court recites the facts claimed to have been proved, and directs the jury that they are to determine whether the wrongs were perpetrated or the facts proved, it does not amount to an instruction upon the facts in the case. Pritchett v. Overman, 3 G. Gr. 531. 48. Where the court charges the jury upon the legal effect of facts, and in impressive argumentative terms urges the support of the 49. In a prosecution for rape, the court instructed the jury that if certain matters were established, "the other ingredients being found," it would be their duty to convict. Held, that this was not an assumption, by the court, that such ingredients had been found, and that the jury could only reasonably understand therefrom that if the other ingredients were proven, it was their duty to convict. The State v. Tarr, 28 Iowa, 397. 50. An assumption by the court in an instruction to the jury in a criminal prosecution, that certain statements made by the defendant amount to a confession, when in fact they merely furnish evidence to be considered by the jury in arriving at the general verdict, is prejudicial error. The State v. Jones, 33 Iowa, 9. 51. When the court instructed the jury that a certain fact must be proved by competent evidence to entitle the plaintiff to recover, it was held, that as nothing but competent evidence was before the jury, whose province it was to determine its sufficiency or weight, the instruction would not be construed as directing the jury to consider whether or not it was legally fit or suitable to prove such fact. Niles et al. v. Sprague et al., 13 Iowa, 198. 52. It is not the province of the court, under our statute, to instruct the jury upon questions of fact. The charges of a judge should be confined exclusively to the law of the case. erick v. Gasten, 1 G. Gr. 401. Fred 54. An instruction to the jury that if the defendant did certain acts specified they should infer a fraudulent intent, is not obnoxious to The State of lowa v. Thompson, 19 Iowa, 299. the objection that it assumes facts as proved. b. Pertinency of instructions. 55. Instructions containing abstract propositions of law. An instruction which, though abstractly correct, is not pertinent to the facts developed on the trial, may be properly refused. Hypfner v. Walsh et al., 3 G. Gr. 509; Cutter v. Fanning, 2 Iowa, 580; Grover v. Dill, 3 Ibid Pertinency of Instruction - Duplicate Instructions. 337; Pomroy & Co. v. Parmlee, 9 Ibid. 140; Pelamourges v. Clark et al., Ibid. 1; State v. Gibbons, 10 Ibid. 117; Trustees of lowa College v. Hill, 12 Ibid. 462, 473; Shaw v. Brown, 13 Ibid. 508; Russ v. S. B. War Eagle, 14 Ibid. 363; Guest v. Byington, Ibid. 30; Feck v. Hendershott, Ibid. 40; Oliver v. Depew, Ibid. 490; Veach v. Thompson, 15 Ibid. 380; State v. Corrette, 12 Ibid. 358; State v. Baldy, 17 Ibid. 39; Piles v. Hughes, 10 Ibid. 579; Draper v. Ellis, 12 Ibid. 316; Ocheltree v. Carl, 23 Ibid. 394; Tisdale v. The Connecticut Mutual Ins. Co., 28 Ibid. 12; Messer v. Reginnitter, 32 Ibid. 312; The State v. Morphy, 33 Ibid. 270. 56. But if instructions are pertinent to any part of the testimony they should, if correct, be given, without regard to amount of evidence to which they apply. The State v. Gibbons, 10 Iowa, 117; De Camp v. The M. and M. R. R. Co., 12 Ibid. 348. 57. Irrelevant and inapplicable instructions which have no bearing on the facts or questions involved may properly be refused. Packer v. Cockayne, 3 G. Gr. 111; Penley v. Waterhouse, 3 Iowa, 418; Butler & Robertson v. Rickets, 11 Ibid. 107; Gilbert v. Mosier, Ibid. 498; Draper v. Ellis, 12 Ibid. 316; The State v. Corrette, Ibid 358; Rindskoff Bros. v. Barrett, 14 Ibid. 101; Corse Bros. v. Sanford, Ibid. 235; Reid v. Mason, Ibid. 541; The State v. Arthur, 23 Ibid. 430; Ochiltree v. Carl, Ibid. 394. 58. The giving of an instruction based upon a theory or state of facts, in respect to which there is no evidence, is error for which the judgment will be reversed. Byington v. McCadden, 34 Iowa, 216; Rindskoff Bros. & Co. v. Curran, Ibid. 325. 59. In an action for seduction, the court charged the jury, that in estimating the plaintiff's damages they should consider among other things, "the loss of time by her the expense incurred for medical attendance, if any, and board while sick, and the like." It was objected that this instruction was erroneous because inapplicable to the testimony, there being no evidence of loss of time during sickness, or that a physician was employed, or any thing expended for medicine, nursing or other services. It was, however, proved that the plaintiff had given birth to a child, though there was no evidence as to how many days loss of time was occasioned thereby. Held, that there was no sufficient error in the instruction to justify a Vol. 2.77 reversal of the judgment. Gray v. Bean, 27 Iowa, 221. 60. Practice. It is not error to refuse an instruction respecting a question not put in issue by the pleadings. The Iowa and Minnesota R. R. Co. v. Perkins, 28 Iowa, 281. 61. When an irrelevant instruction was given which could not prejudice the plaintiff, the judgment will not be reversed. Sullivan et al. v. Finn, 4 G. Gr. 544. 62. Presumption of applicability. An instruction will not be held inapplicable when evidence making it applicable would have been admissible under the issues raised by the pleadings, and it does not appear that such evidence was not introduced. Gantz v. Clark, 31 Iowa, 254. 63. If the bill of exceptions does not fully set forth the evidence upon the point about which the court is requested to charge the jury, but still the facts involved tended to raise that point; and when the parties for whom the verdict was given asked for the instruction, it will be presumed that the instruction was applicable, and had some influence with the jury. Carson v. Lucore, 1 G. Gr. 33. 64. A party complaining of the ruling of tho court in refusing certain instructions must show their pertinency under the evidence and actual state of the case tried. Frost v. Inman, 10 Iowa, 587. 65. Vague and impertinent instructions. Instructions which are vague and unintelligible, or which have no application to the facts of the case, should not be given to the jury. Butler and Robinson v. Rickets, 11 Iowa, 107. 66. Immaterial instructions. The court is not bound to give instructions which are imma terial. Peck et ux, v. Hendershott, 14 Iowa, 40. c. Duplicate instructions. 67. It is not error to refuse to give instruc tions asked for, however correct or applicable, if they have in substance already been given in the charge of the court. Raver v. Webster, 3 Iowa, 502; Moffit v. Cressler, 8 Ibid. 122; Mills, Horner & Co. v. Mabon, 9 Ibid. 484; Pelamourges v. Clark et al., Ibid. 1; Payne v. Billingham. 10 Ibid. 360; State v. Hockenberry & Brandt, 11 Ibid. 269; Trustees of Iowa College v. Hill, 12 Ibid. 462, 473; Peck v. Hendershott, 14 Ibid. 40; Rindskoff Bros. v. Barrett, Ibid. 101; Russ v. S. B. War Eagle, Ibid. 363; Reid v. Mason, Ibid. 541; Modifications of - How Instructions are to be Construed - Exceptions to Instructions. Cousins v. Westcott, 15 Ibid. 253; State v. Sheeley, Ibid. 404; Smith v. Grable, 14 Ibid. 429; Denton v. Lewis, 15 Ibid. 301; Payne v. Biningham, 10 Ibid. 360, 366; Denton v. Lewis, 15 Ibid. 301; Nason v. Woodward, 16 Ibid. 216, 219; Moffitt v. Cressler, 8 Ibid. 122; State v. Baldy, 17 Ibid. 39; State v. Rorabacker, 19 Ibid. 154; State v. Schlagel, Ibid. 169; Harper v. Madren & Marshall, 21 Ibid 407; Tisdale v. The Conn. Mut. Life Ins. Co., 28 Ibid. 12; Clinton Nat. Bank v Torry, 30 Ibid. 85; Todd v. Branner, Ibid. 439; Wilhelm v. Fimple, 31 Ibid. 131; Robinson v. The Ill. Central R. R. Co., 30 Ibid. 401; Comstock v. The Des Moines Valley R. R. Co., 32 Ibid. 376; The State v. Stanley, 33 Ibid. 526; Koester v. The City of Ottumwa, 34 Ibid. 41. d. Modifications of. 73. Instructions should be construed in connection with the actual facts of the case, and if, as thus construed, they are, when taken together, correct, the fact that isolated portions are subject to criticism, as being erroneous, con stitutes no sufficient cause for reversal. Burlington Gas Light Co. v. Greene, Thomas & Co., 28 Iowa, 289. 74. An instruction, which, when considered abstractly, would be regarded as erroneous, furnishes no ground for reversal, if, when considered in connection with the other instructions given, its legal application becomes apparent. Ferguson v. Beadle & Slea, 30 Iowa, 477. 75. If, as a whole, instructions given by the court to the jury contain a correct exposition of the law governing the case, the appellate court will not interfere, although, separately considered, they might be objectionable. Brown v. Bridges, 31 Iowa, 138; The State v. Shean, 32 Ibid. 88. 76. But an instruction which has a tendency to, and probably did, mislead the jury, when taken singly, is erroneous, even though the in 68. Instructions may be refused, as asked, and given in a modified form, as the circumstances and evidence in the case may require. Parris v. The State, 2 G. Gr. 449; Hall v. Hunter, 4 Ibid. 539; Abbott v. Striblen, 6 Iowa, 191; Rusch v. The City of Davenport, Ibid. 443; Tifield v. Adams, 3 Ibid. 487; The State v. Gib-structions when all taken together, embody the bons, 10 Ibid. 117; Grimes v. Martin, Ibid. 347; Morrison v. Myers, Turner et al., 11 Ibid. 538; Bevan v. Hayden, 13 Ibid. 122; Keenan v. Mo. State Mut. Ins. Co., 12 Ibid. 126; Woodward v. Laverty, 14 Ibid. 381. 69. It is not error to modify an instruction, which, though containing correct law, might, in view of the peculiar facts in the case, mislead the jury if given as asked. Burlington Gas Light Co. v. Green, Thomas & Co., 22 Iowa, 508 Hall v. Hunter, 4 G. Gr. 539. 70. Modifications of instructions should not be made by interlineations or erasures. Phillips v. Starr & Co., 26 Iowa, 349. 71. Modifications made by the court, in an instruction asked by a party, should be pertinent; and when the modification made is erroneous, if pertinent, the judgment will be reversed. State v. Green, 20 Iowa, 424. III. HOW INSTRUCTIONS ARE TO BE CONSTRUED. 72. Considered together. Instructions must be regarded as a whole, and a specific objection cannot prevail against one, if the instructions taken together cover the point objected to. Hamilton v. State Bank, 22 Iowa, 306; Smothers v. Hanks, 34 Ibid. 286; Parker v. The Dub. S. W. R. R. Co., Ibid. 399. law. Price v. Mahoney, 24 Iowa, 582. 77. Instructions are not to be construed abstractly but as a whole, and according to their plain and ordinary meaning rather than to any test of hypercriticism of language. Smothers v. Hanks, 34 Iowa, 286. IV. EXCEPTIONS TO INSTRUCTIONS. 78. When taken. Exceptions to instructions must be taken at the time, and this must appear from the transcript. Rawlins v. Tucker, 3 Iowa, 213; Brewington v. Patton et al., 1 Ibid. 121; Hall v. Denise, 6 Ibid. 534; The State of Iowa v. Moran, 7 Ibid. 236; McKell v. Wright, Ecans & Co., 4 Ibid. 504; Talty v. Lusk, Ibid. 469; Whitney v. Olmstead, 5 Ibid. 373; Gover v. Dill, 3 Ibid. 337; The State v. Burge, 7 Ibid. 255; The State v. Hussey, Ibid. 409; Morse v. Close, 11 Ibid. 93; Davenport v. Cummings, 15 Ibid. 219; McKell v. Wright, Evans & Co., 4 Ibid. 504; Thomson v. Wilson, 26 Ibid. 120, and cases cited in title EXCEPTIONS AND BILLS OF EXCEPTIONS, § 1. 79. How taken. A general exception to the instructions of the court is not sufficient if any portion of the charge can be sustained. The exception must be more specific. Loomis, Conger & Co. v. Simpson, 13 Iowa, 532; Davenport G Cadwallader & Co. v. Blair & Van Nostrand, 18 L. & C. Co. v. The City of Davenport, Ibid. 229; Wilhelmi v. Leonard, Ibid. 330; Cousins v. Westcott, 15 Ibid. 253; Jack v. Naber, Ibid. 450; 86. But prior to the Revision a different rule Brown v. Jefferson County, 16 Ibid. 339; Peck v. prevailed, and in order to have them reviewed, Hendershott, 14 Ibid. 40; Shephard v. Brenton, it was necessary to embody the instructions in a 20 Ibid. 41; Spray v. Scott, Ibid. 473; Verholf v. bill of exceptions. Ewing v. Scott, 2 Iowa, 447; Hourenlengen, 21 Ibid. 429; Redman & Fear v. Eyser v. Weissgerber, Ibid. 463; Claussen v. Malvin & Cloud, 23 Ibid. 296; Mershon v. The Lafranz, 1 Ibid. 226; Mumma v. McKee, 10 Ibid. Nat. Ins. Co., 34 Ibid. 87; Carpenter v. Parker 107; Fletcher v. Burroughs, Ibid. 557; Morse v. et al., 23 Ibid. 450. The case of Eyser v. Weissger-Close, 11 Ibid. 93. A certificate by the clerk was ber, 2 Iowa, 463, holding a contrary rule, is no not sufficient. Knight v. Kelley, 10 Iowa, 104; - longer law. Pierce Bros. & Flanders v. Locke & Co., 11 Ibid. 454; Wheeler v. Smith, 13 Ibid. 564. Nor could they be attached to the bill, but must be embodied in it. Fletcher v. Burroughs, supra. 80. So where instructions asked by either party are given against objections of the opposite party, each of the instructions objected to should be marked "excepted to." Davenport Gas-Light and Coke Co. v. The City of Daven port, supra; Armstrong v. Pierson, 15 Iowa, 476; Lyons v. Thompson, 16 Ibid. 62; Sheppard v. Brenton, supra. 81. But when instructions are asked and refused and such refusal is noted in the margin of each instruction, a general exception presents a question for review upon each instruction so refused. The Davenport Gas-Light and Coke Company v. The City of Davenport, 13 Iowa, 229. 82. Where no part of charge is correct. And an exception to the entire charge, and not to the objectionable part, when no part of the charge is correct, is good. Otherwise, where part of the instruction is indisputably correct. Eddy v. Howard, 23 Iowa, 175. 83. Where the court submitted to counsel certain instructions to be given on a particular subject, but which the court afterward refused to give, which was excepted to, and in their place gave another instruction, which also was excepted to. Held, that the entire action was excepted to, the matter of the instruction, as well as the manner and time of giving it. Ibid. 84. Instructions which are not signed by the judge nor filed with the clerk, and which are not marked either "given" or "refused will not be considered by the supreme court. The State of Iowa v. Watrous, 13 Iowa, 489. 85. Bill of exceptions. When the ruling of the court upon instructions is noted in the margin thereof, with exceptions thereto, in accordance with the provisions of sections 3054, 3055 of the Revision of 1860, they become a part of the record, and may be reviewed by the supreme court without a formal bill of exceptions, but a bill of exceptions is preferable. 87. In criminal cases. Under sections 4813, 4814 of the Revision of 1860, instructions in criminal cases, when properly signed and filed, become a part of the record. The State v. McCombs, 13 Iowa, 426. 88. But it is not sufficient for them to be referred to in a motion for a new trial embodied in a bill of exceptions. They must be signed and filed, or embodied in a bill of exceptions or they do not become a part of the record. The State v. Gebhardt, 13 Iowa, 473; State v. Watrous, Ibid. 489. 89. So while in civil cases a formal bill is not necessary where the ruling of the court, with the exceptions thereto, is noted in the margin, a statement by the clerk that certain instructions were given is insufficient. Cadwallader & Co. v. Blair & Van Nostrand, 18 Iowa, 420. V. REVIEW OF RULINGS ON INSTRUCTIONS. 90. Applicability must be shown. The action of the court below in giving or refusing instruction will not be reviewed, unless the evidence or sufficient of it to show their applicability is properly embraced in the record. Hall v. Hunter, 4 G. Gr. 539; Porter v. Walker, 1 Iowa, 456; Conger v. Dean, 3 Ibid. 463; Welsh v. Savery, 4 Ibid. 241; Beebe v. Stutsman, 5 Ibid. 271; Potter, White, Nute & Bailey v. Wooster et al., 10 Ibid. 334; State v. Quick & Mullen, Ibid. 451; Williams v. Parker, Ibid. 590; Frost v. Inman, Ibid. 587; Fletcher et ux. v. Burroughs et ux., Ibid. 557; Nollen v. Wisner & Van Vark, 11 Ibid. 190; Wisner & Co. v. Brady, Ibid. 248; State v. Leis, Ibid. 416; Paden v. Griffith et al., 12 Ibid. 272; State v. Corrette, Ibid. 358; Gray v. Earl, 13 Ibid. 188, 191; Hamline v. Beck, Ibid. 602; Reid v. Mason, 14 Ibid. 541; Butler v. By |