Page:The World's Most Famous Court Trial - 1925.djvu/161

Rh things mean. In Jones' Commentary on Evidence, Vol. 1, page 26—and your honor will realize that this is no reflection on the court—that the author said:

"Courts should observe the utmost caution to avoid assuming knowledge of natural facts and laws that are beyond the scope of common, positive knowledge."

And, in Dumphrey vs. St. Joseph Stock Yards company, 118 Mo., App., 506, the court said:

"The mysteries of nature are so manifold, deep and subtle, that the finite man cannot indulge in dogmatic conclusions affecting them without falling into error. Human nature being microcosmic, is not certainly known save in its prominent outlines."

Jones says further:

"It goes without saying that every judge upon the bench would disclaim such an encyclopedic knowledge added to a phenomenal memory, as would serve him on every application that the court should take judicial cognizance of a given fact. However wide his reading the suggestions frequently make a demand upon him, to which, without some means of reference or refreshing his knowledge, he might not be able to respond."

And further:

"The judge has no right to act upon his personal or special knowledge of facts as distinct from that general knowledge which might properly be important to other persons of importance."

Your honor well knows that there are occasions on which a judge takes what is called perhaps unfortunately judicial knowledge, because they are presumed not to be ignorant of what everybody else knows. I take that statement from Commonwealth vs. Peckham, 2 Gray, Mass., 514.

When we come to the proposition of judicial notice the taking of judicial notice has always favored a party litigant. A court is never bound to take judicial notice except possibly the laws of the statutes. If a matter is not of such common knowledge as to be known by everybody, a court may take judicial cognizance, in which case evidence must be introduced to inform the court, but doesn't take judicial notice in the sense that no evidence is required. Do I make myself clear?

The Court—You might just review your statement.

Mr. Hays—I like the term judicial cognizance better than the term judicial notice, because the court even takes judicial cognizance of facts of which it has no actual judicial knowledge at all. If the court takes judicial cognizance of matters, since the court is merely human and the bounds of knowledge are limited somewhat, the court must take testimony and evidence on facts which are not matters of common knowledge in order to inform itself, because there is nothing more important than that the court should not fall into error on questions of fact as well as of law. Perhaps this statement makes it clearer and this is supported by any number of federal cases and I think it is such sound law that my opponents won't require any further elucidation.

"The court is not bound to receive evidence as to a matter of which it takes judicial notice, but it is, of course, bound to notice facts merely as the facts as to those matters of law upon which an issue of fact cannot be made."

The Court—Such as matters of common knowledge?

Mr. Hays—Yes, sir. But it is, of course, bound to notice facts correctly. In other words if your honor does take judicial cognizance you are bound to notice the facts correctly. It is not prejudicial error to receive evidence in such cases and even as to these matters the court may seek information—that is as to common ordinary matters it has been held will require the production of evidence. If your honor says, "I will take judicial notice of all science, I will take judicial notice of evolution in the field of geology, zoology, embryology and everything else, "youelse", you [sic] would be doing us a great