Executors of Reel v. Reel , 9 N.C. 63 ( 1822 )

This cause came before the Court again on an appeal from the judgment rendered on the new trial, had pursuant to the former decision of this Court. Reel v. Reel, 8 N.C. 248. The issue was devisavit vel non, and arose upon the offering for probate a paper-writing purporting to be the last will and testament of James Reel.

(85) The jury returned a verdict that the paper-writing was not the last will and testament of James Reel.

Whereupon it was considered by the court that the said paper-writing, offered as the will of James Reel, is not the will of the said James, and that the defendant go without day and recover his costs. This is a motion for a new trial, on the ground that the court intimated its opinion to the jury of the matter in issue. The act of Assembly relative to the duty of a judge in charging, forbids him "to give an opinion whether a fact if fully or sufficiently proved, such matter being the true office and province of a jury," and it directs him "to state, in a full and correct manner, the facts given in evidence and to declare and explain the law arising thereon."

The evident design of this law was to preserve the purity of the trial by jury, and thus to secure to every man whose rights were controverted a decision on the facts put in issue, which should be the result of the jury's investigation of the evidence, uninfluenced and unbiased by (86) the opinion of the judge, whose province it is to pronounce whether testimony be admissible, and to instruct the jury as to the law, accordingly as they shall believe the facts proved or otherwise.

It is not for this Court to discuss the wisdom or expediency of this law, or to pervert its true construction, under a belief that no mischief can be produced thereby or even that justice can be more substantially administered. It is the will of the Legislature, and we are bound to obey it; so that every man who conceives himself aggrieved by a disobedience to the law has a right to be heard here, and if he can establish his case has a right to a new trial without any necessity on the part of this Court of inquiring into the merits of the verdict. For, although it should appear to this Court that the evidence spread upon the record is such that if believed by the jury it well warranted the verdict, yet if it also appear that the judge in his charge "gave an opinion whether a fact was fully or sufficiently proved," it cannot be told how far the verdict was produced by the testimony, since the jury were to judge of its credibility, or by an intimation of the opinion of the judge. The propriety of the verdict then, or its conformity with the evidence, we leave out of the question, and desire to be understood as giving no opinion upon it. For, if the motion for a new trial were overruled because this Court approved of the verdict, and it should at the same time appear that the judge had departed from the direction of the law in charging the jury, it would be deciding, in effect, that disobedience to the law may be tolerated or not, according to the consequence which flows from it. If a verdict contrary to or unsupported by evidence has been produced by it, the party shall be entitled to a new trial. But if the evidence justifies the verdict, and the right of the cause has been duly administered, the charge of the judge, although deviating from the law, shall be overlooked. But this is not the rule prescribed by the Legislature; they have inhibited the declaration of the judge's (87) opinion on the proof of facts in every case, presuming that, inevery case, it encroaches on the proper functions of a jury, and that, in every case, it imparts a bias to the judgment of the jury, which they are disposed to receive with confidence and seldom make an effort to resist.

I proceed to examine the charge with a single eye to the question whether it be conformable to the act of Assembly.

It begins with a caution to the jury against being influenced by party or political attachment, or by a former verdict on the will, which had been rendered in Craven County, and reminding them that they were sworn to decide according to the evidence and to that only. This was very necessary, and called for by the nature of the disposition in the will, which, being favorable to two persons on account of their personal exertions in a contest of party, was peculiarly calculated to awaken the ordinary passions and propensities on such occasions. The judge then directs their attention to the true questions of fact in issue, the capacity of the testator and whether the will was obtained by fraud or not. He first describes what the law considers a disposing mind, and its presumption that every man possesses it until a disqualification was shown, and in doing this the judge exercised his proper functions with equal skill and perspicuity. The general instruction that follows on the means by which fraud may be proved is also unexceptionable.

But when the judge proceeds to sum up the circumstances which he calls suspicious, and which, if they exist, the law will not support the will, that part of the charge cannot be read without a belief that it conveyed an intimation to the jury of his own opinion that they were suspicious and that they were proved to exist, i.e.: "and if, in addition thereto, there are other suspicious circumstances, such as I shall (88) mention to you presently, the law will not support such a will. For instance, if the mind of the testator was weak; if it was made secretly and drawn when nobody was present and in the absence of the relations of the testator; if there was nobody present but the testator and the attorney, and it was in the night or early in the morning, after a course of habitual drunkenness before he could probably have recovered from the effects of his debauch; if the will upon the face of it contained a statement of the reasons which induced the testator to make certain bequests, and it appeared that the statement was untrue; if James Reel had relations against whom he had no resentment, and those relations, or some of them, were widows and orphans unprovided for; if, then, he appeared afterwards not to know with reasonable correctness the contents of the will; if he left the paper in the possession of his attorney and afterwards endeavored to regain the possession of it, and the attorney by contrivance or fraud withheld it; if shortly before the date of the will he made some other arrangement, or if, to make a will a different one, these would be evidences of fraud."

These circumstances, thus grouped together before the statement of the testimony, must unavoidably have been understood by the jury as the impression made on the judge's mind by weighing and comparing the evidence, as the result of his view of those parts of it which related to the subjects touched upon, and was calculated to make a lodgement in their minds, notwithstanding the conclusion of the paragraph: "that whether those circumstances or any existed in this case it was their duty to ascertain from the evidence."

The truth of some of these facts, thus hypothetically stated, depended upon the weight and comparison of conflicting testimony, which was a labor less likely to be encountered by the jury if they believed it had already been done by the judge. For example, "if James Reel had relations against whom he had no resentment."

(89) The witnesses, Jones, Tolar, Powell, and Whitford, depose that the testator was on good terms with his relations. The witnesses, Hall, Lewis, Dunn, and Rice, swear to the declarations of the testator, made at different times, "that his people should be no better for what he had, that they cared nothing about him, that his brothers differed from him in politics, and neglected him in sickness, and that his folks came like buzzards about carrion when he was sick."

"If the will, upon the face of it, contained a statement of reasons which induced the testator to make certain bequests, and it appeared that the statement was untrue." The only reason given in the will for any bequest is that for Blackledge and Allen, and that is for their having heretofore borne the greatest burden of the expenses and labor in supporting the Republican cause in the county of Craven, and because the testator was of the same political principles, and very desirous of having them supported. Here are three distinct motives stated as inducing him to make the bequest, viz.: The legatees having borne the greatest burden of the expense and labor in supporting the Republican cause, his being of the same political principles, and his desire to have them supported. There is no evidence in the case tending to show in the least degree that the two last reasons are false. As to the first reason, the only evidence is that of J. F. Smith, who admits that Blackledge treated liberally, but Allen less than any other candidate, and had expended less in support of the Republican party than almost any man of note in it, and had not been generally known as of the party until party contests had gone a great way. Mr. Smith goes as far back as the period of Mr. Jefferson's first election, which was in 1800, but does not specify when it was that Mr. Allen was generally known as of the party; and the jury might have had some difficulty from this evidence to infer the falsehood of the reason that Blackledge and Allen had heretofore (90) (that is before 1815) borne the burden of labor and expense.

"If he left the paper in possession of his attorney, and afterwards endeavored to regain the possession of it, and the attorney by contrivance or fraud withheld it."

Of the several witnesses, Hutchins, Powell, Shackleford, Willis, and Hall, whose testimony relates to this point, none of them speak of the testator having endeavored to get his will from Blackledge; they all speak of papers or a packet of papers; and Thomas deposes that in 1815 the testator told him at New Bern that he meant to put his notes and accounts in the hands of Blackledge and Allen. It was therefore to be considered by the jury whether he had endeavored to regain possession of the will.

"In this case it is for you to inquire why all this precaution was taken of sending for Ernull, and having Cratch for a witness when the paper was taken out of the trunk, if there was no fraud."

The only witness as to this point is Cratch, who merely says that he saw Blackledge search in his trunk, and find the paper produced as a will. For what purpose the witness went to Blackledge's, or whether his abode was there, does not appear. The charge conveys the idea that Blackledge procured Cratch to be there for the purpose of attesting the finding of the paper, and that he was called upon as a witness. Nor is there the slightest evidence that Ernull was sent for, or was even present. Both circumstances are stated in the charge as if proved as facts. The law case stated by the judge of the servant being called upon by his master to notice the time he left home, could only illustrate the suspicion, and even presumption, growing out of unusual precautions, upon the supposition that Cratch had been specially called upon by Blackledge to witness the finding of the will in the chest; and the very statement of the case was calculated to make the jury suppose that necessary (91) fact was proved. On no other principle could it bear on the point.

"If the will was fairly executed and attested by the subscribing witnesses would not their evidence be sufficient to establish it, and would it have occurred to Mr. Blackledge to use these precautions if these be facts?

"You will consider of them and form your own conclusions."

This does not seem to leave the consideration of the evidence to the jury without an intimation of the judge's opinion upon its force and effect.

"Masters says that the testator always seemed to have a capacity to do business, whether drunk or sober; but this witness, when cross-examined, states that he forms this opinion from a single transaction in which he saw him attempting to bargain with Lewis for a chair." Upon looking at the testimony it does not appear that the witness had so formed his opinion, nor does he state upon what it is founded. He says that, whether drunk or sober, no man could take advantage of him, and he saw him attempt to jew Lewis for a bargain in a chair, which is the only instance of his attempting to bargain that he knows of. His general capacity for business is one part of the evidence; his freedom from imposition, whether drunk or sober, in a bargain is another, and as the witness never saw him attempt to bargain but once, it is an inference that his opinion may be founded on that.

"By the evidence of this witness and the other subscribing witness, it appears that the paper was executed by the supposed testator between sunrise and breakfast time; they have stated to you that he was sober. How a man who had been continually drunk for seven or eight days could be sufficiently restored to his understanding by one night's sleep to enable him to dispose of his property with reason, especially when it is proved by another witness that after a night's sleep at his house (92) he seemed as drunk in the morning as he was the overnight, will be a proper matter for reflection and inquiry with you."

The latter circumstance is cited as a fact, which is put in opposition to the first fact, both being assumed as such; now, though evidence may be irreconcilable, facts cannot be.

Upon considering the whole of the charge, it appears to me that its general tendency is to preclude that full and free inquiry into the truth of the facts which is contemplated by the law — with the purest intentions, however, on the part of the worthy judge, who, receiving a strong impression from the testimony adduced, was willing that what he believed to be the very right and justice of the case should be administered.

I am not unaware of the difficulty of concealing all indications of the conviction wrought on the mind by evidence throughout a long and complicated cause; but the law has spoken and we have only to obey.

PER CURIAM. New trial.

Cited: S. v. Davis, 15 N.C. 614; S. v. Howard, 129 N.C. 673; Withersv. Lane, 144 N.C. 190; Speed v. Perry, 167 N.C. 128; Starling v. CottonMills, 171 N.C. 228.

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