Byington v. Horton , 61 Idaho 389 ( 1940 )

The judgment entered in the trial court in this case appears to be just and ought to be upheld. I think, however, that it was a clear violation of the statute (sec. 7-206) for the trial court to refuse to instruct the jury prior to the argument of the case by counsel. The pertinent provisions of the statute, directly bearing on this question, are as follows:

Sec. 7-206:

"When the jury has been sworn, the trial must proceed in the following order unless the judge for special reasons otherwise directs;

. . . . . . . . . . . .

"4. When the evidence is concluded and before the case is argued or submitted to the jury, either party may request the court to give the jury instructions in writing on the law arising in the cause which shall be given or refused as asked: provided, that the court may also give other and further instructions of its own motion. All of the written instructions given shall be carried by the jury to their room for their guidance in arriving at a correct verdict according to the law and the evidence. The instructions shall then be read to the jury by the court, and unless the case is submitted to the jury without argument, the plaintiff must commence and may conclude the argument.

. . . . . . . . . . . .

"6. If either party objects to the giving of written instructions and permitting the jury to take them to their room as provided in fourth subdivision of this section, then instead thereof the course of procedure shall be as follows: The court may then charge the jury, according to the provisions of sections 7-207 and 7-208 . . . ."

Sec. 7-207:

"In charging the jury the court may state to them all matters of law which he thinks necessary for their information in giving their verdict; and if it state the testimony of the case it must inform the jury that they are the exclusive judges of all questions of fact. The court must furnish to either party at the time, upon request, a statement in writing of the points of law contained in the charge, or sign at the time a statement of such points prepared and submitted by the counsel of either party."

In my judgment, the expression contained in the first sentence of section 7-206, "unless the judge for special reasons otherwise directs," has no application to subdivisions 4 and 6, because where one party makes the request undersubdivision 4, such request may be defeated by the adverse party availing himself of subdivision 6, in which event, the instructions will be given in pursuance of the provisions of sections 7-207 and 7-208.

This court entertained the same view of these statutes I am here expressing in the case of Schmidt v. Williams, 34 Idaho 723, 732, 203 P. 1075, and said:

"It appears from this statute that the instructions should beread to the jury before argument of counsel. The record does not disclose that appellants interposed any objection to the order of procedure adopted by the trial court, or requested the court to proceed in the order indicated by the statute. Had such objection or request been made, the case might be different. We do not think such a departure as this from the order prescribed by the statute should be held to be reversible error, in the absence of such request or objection." (Italics supplied.)

The reason this court upheld the judgment in the Schmidt-Williams case was because objection was not made to the order of procedure in the trial court. Here it appears thatboth parties made the same request, namely, that the court instruct the jury on the law of the case prior to the oral arguments.

There are many cases in which it might well appear to counsel of great importance to have the instructions given prior to the oral argument, because of the difficult and uncertain legal questions involved in the case and the doubts of counsel as to what view the court will take in giving his instructions. It might prove disastrous to a litigant sometimes to be required to make oral argument on the facts, assuming the law to be one way and have the court immediately follow him by instructing the jury that the law is to the contrary. If the trial of lawsuits is not to be a game of chance but is to be an earnest endeavor to attain justice by the orderly processes of the law, then it is of great importance for the attorneys and the jury to be advised as to what the court considers the law to be, as applied to the specific case on trial, so that the questions of fact may be intelligently discussed and considered in the light of those principles of law.

Under the circumstances of this case, I am not prepared to hold that the error committed as to the time of giving the instructions was of such a prejudicial character as to justify a reversal of the judgment; and for this reason I concur in an affirmance of the judgment.