Saunders v. Howard ( 1879 )

Adams, J.

i. iNSTiurcineMss8®”Sgnature: eviaence. — The appellant insists that it was the province of the jury to make a comparison of the handwriting for themselves. This is not denied by the appellee, and it could not be properly. Code, 8 3655, provides for a comparison of handwriting by the jury. But the appellee insists that, as the letters were in evidence, the appellant was not entitled to an instruction directing specially what consideration should be given them, and how a verdict should be reached. As to the instruction given the appellee insists that it is evident upon the face of it that the court only had in mind the language used and not the handwriting, and that the jury were not precluded by it from making a comparison of handwriting.

It is not ordinarily the imperative duty of the court, even when asked, to call the attention of the jury specifically to a portion of the evidence. When evidence is admitted the jury is virtually told that it is before them for their consideration. But in this case it appears to us that the jury might have concluded that the letters were to be considered merely with reference to the alleged written admission that the note was still unpaid. Such being the case, we think that the plaintiff was entitled to an instruction that they might be considered with a view to a comparison of handwriting. Other errors are assigned, but the conclusion we reach renders their consideration unnecessary. In refusing the instruction asked we think the court erred.

Reversed.