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THE GREEN BAG

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ABOLISHED? By William Hamilton Cowles ONE of the most familiar of Broom's Legal Maxims, cited by him from Coke, has been freely paraphrased thus: "It is the office of the judge to instruct the jury in points of law; of the jury to decide on matters of fact." 1 A stock instruction to juries, familiar as the alphabet to trial lawyers in most states, is commonly put in some such form as this: "You are the exclusive judges of the weight of the evidence, of its credit and value. It is for you to say what credit shall be given to the various witnesses in this case." The Supreme Court of the United States has said: "It is the province of the court, either before or after the verdict, to decide whether the plaintiff has given evidence sufficient to support or justify a verdict in his favor. Not whether on all the evidence the prepon derating weight is in his favor — that is the business of the jury — but conceding to all the evidence offered the greatest probative force, which according to the law of evidence it is fairly entitled to, is it sufficient to justify a verdict? If it does not, then it is the duty of the court, after a verdict, to set it aside and grant a new trial. " 2 The gist of the doctrine set forth in each quotation is that the jury are the judges of the facts. This sounds so much like a matter of course that it will be something of a puzzle to make out what occasion there is now for stating it once, say nothing of three times. The fact is that it has but recently dawned on the writer that, while the maxim referred to has a certain approx imate truth in its main scope, this chief implication, or corollary, for which it is 1 Penn. Co. v. Conlan, ioi Ill. at 107 ('80. ' Pleasants v. Fant, 22 Wall. 116, at 122 ('74).

really cited, is not true at all; that the stock instruction is not law now, and never was; and that the passage quoted from the Supreme Court has been wholly repudiated and superseded. And with the ingenuous ness of the tyro, he assumes that because this is new to him, it may be new to others. Whether the verdict of a jury, on evidence which, if believed, is sufficient to warrant it, really settles anything, presents itself as a practical question when we come to con sider the grounds on which a court may grant a new trial. The decision in Pleasants v. Fant, 22 Wall. 116, referred to above, does not stand alone by any means. In its time it doubtless scarcely started a query. And from that position, as a starting point, it looks as if it would be very easy in a state having the usual constitutional provision preserving trial by jury, and enumerating among the only grounds for granting a new trial, " That the verdict is not sustained by sufficient evidence, " to show that allowing the trial judge to grant a new trial whenever he does not agree with the jury as to the facts, is wrong. Of course in states which authorize a new trial because the verdict is "contrary to the evidence," or better, because eliminating questions of interpre tation, "against the weight of the evidence," the point of contest moves back a step to whether such a statute infringes on the right of trial by jury. Some decisions taking essentially the same view as to the function of the jury as is set out in Pleasants v. Fant, are collected in a note.1 1 Drennen v. Brown, 10 Ark. 138 ('49); St. L. S. W. Ry. Co. v. Byrne, 73 Ark. 377 ('04); Amsby v. Dickhouse, 4 Cal. 102 ('54); Bishop v. Perkins, 19 Conn. 300 ('48); Burton v. R. R. Co., 4 Har. 252 ('44); Stewart v. Elliott. 2 Mackey, 307 ('83); Walker v. Walker, 11 Ga. 203 ('52); Warner v. Robertson, 13 Ga. 370 ('53): Spurlock v. West, 80