Elwell v. Sullivan , 80 Me. 207 ( 1888 )

Foster, J.

There is but one ground of complaint in the bill of exceptions which is presented for our consideration. That relates to a remark of the presiding justice made to counsel during the progress of the trial.

Counsel had stated to the court, after inquiry as to the purpose of certain testimony, that he proposed to contradict the statements of the witness, Walker, who had testified upon the other side. Thereupon the testimony was admitted. After the answer of the witness had been given, the court remarked to the counsel of whom the inquiry had been made : " That does not contradict Mr. Walker at all.”

No exception was taken, nor was any objection to the remark made known to the presiding justice, until after the jury bad returned their verdict.

It is now claimed that the remark thus made was in violation of R. S., c. 82, § 83, and that a new trial should be granted for that reason.

We do not think the statute prohibition should be applied in this case. The court has duties,.as well as counsel, in the trial of causes. And it is not eveiy remark of the presiding justice, especially when made to counsel in relation t.o the manner of conducting a cause, that is to be regarded as the expression of an opinion upon " issues of fact.” If counsel thought the remark was in contravention of the statute, and he was desirous of preserving his rights by exceptions, it was his duty to call the attention of the court to the fact at the time, instead of lying by in silence and taking the chance of a verdict in his favor, and comp]aining afterward.

It has long been settled that if the presiding judge in his charge inadvertently assumes as uncontroverted any matter of fact in evidence upon which either party desires to raise an issue to the jury, or if through inadvertence he misstates any material fact, it is the duty of counsel to call the attention of the judge to the error at the time in order that the mistake may be rectified before the ease is submitted to the jury. When this is not done it is regarded as a waiver of exceptions on such matters. Harvey v. Dodge, 73 Maine, 318; Murchie v. Gates, 78 Maine, 306.

The analogy is strong between these principles and the case at bar. The duty of counsel is no more imperative in one instance than in the other.

If the excepting party in this case could properly be said to have had any just cause of complaint, we have no doubt he waived the same by neglecting to make his objections known to the court at the time. State v. Bowe, 61 Maine, 175; McLellan v. Wheeler, 70 Maine, 287; State v. Benner, 64 Maine, 267; State v. Wilkinson, 76 Maine, 323.

Exceptions overruled.

Peters, C. J., Walton, Danforth, Emery and Haskell, JJ., concurred.