Bailey v. Poole, 35 N.C. 404, 13 Ired. 404 (1852)

June 1852 · Supreme Court of North Carolina

35 N.C. 404, 13 Ired. 404

JOHN BAILEY vs. JOSEPH H. POOLE.

Hie general rule is, that a -witness must speak to facts, and cannot give hia opinion as derived from these facts. The only exceptions are as to questions of science and of sanity.

It is the duty of a Judge, -when lie does charge upon evidence, to collate it, and bring it together in one view, on each side, with such remaiks and illustrations, as may properly direct the attention of the jury. It is also his duty to bring to the notice of the jury, principles of law or facts, which have an important bearing upon the case, though omitted in the argument of counsel.

The case of State v. Moses, 2 Dev. 452. cited and approved

Appeal from the Superior Court of Law of Pasquotank County, at the Spring Term, 1852, his Honor Judge Battle presiding.

This was an action of trespass on the case, in which the plaintiff declared against the defendant for misrepresenting the title of the plaintiff to certain real estates, upon an execution sale of the same, whereby it sold at a great sacrifice, to the plaintiff’s damage.

Upon the trial, the plaintiff, after showing that be was the owner of certain lots in the town of Nixonton, and that certain creditors of his had obtained judgments against him, and taken out executions therein, and delivered them to the sheriff, proved that the sheriff levied upon the said town lots and lands, and offered them for sale; that the defendant wras present, and bid one dollar for the lots.

Whereupon, one Pritchard, who testified to those facts, bid five dollars, and the defendant then bid a small sum above that, and Pritchard made another bid of ten dollars, when the defendant remarked to him, that he, the defendant, had a trust on the property, in favor of his father’s estate, for more than it was worth, and that he was bidding only for the purpose of getting possession, and then bid fifty cents more, and it was knocked down to him, Pritchard declining to bid any further, in consequence of such representations. Pritchard stated further, that the plaintiff was standing very near him at the time when the defendant made the representation above mentioned, and as it was made, pressed his arm. The plaintiff 's counsel asked the witness, what was his impression as to the meaning of the plaintiff’ by pressing his, the witness’, arm. The question was objected to by the defendant’s counsel, and ruled out by the Court. The plaintiff’s counsel, by the permission of the Court, asked the witness, whether he desisted from bidding in consequence of the pressure of his arm by the plaintiff. But, before the witness answered it, the counsel withdrew it. Much other testimony was given on both sides, which it is unnecessary to give; as the only questions raised on the motion for a new trial are presented in the foregoing statement.

The defendant’s counsel contended, that his remark at the sale had been misunderstood by the witness, but if it were taken to be true, it, in connexion with other circum. stances, showed that the plaintiff and o'efendant had an understanding with each other, that the defendant should purchase the property at an under-value, and, afterwards, upon a resale, give the plaintiff the benefit of the advanced price, and that, if such were the case, the plaintiff could not recover.

The counsel further contended, that the plaintiffhad failed to show that any person was willing to give more for the property at the execution sale, than was bid by the defendant. But the counsel did not, in their argument to tho jury, remark upon the withdrawal by the plaintiff’s counsel, of the question put to the witness, Pritchard, as above stated. The Court charged the jury, that, if the plaintiff had agreed with the defendant, that the latter should, by making a misrepresentation of his title, purchase the land-at an under value for the plaintiff’s benefit, he could not recover. The Court then called the attention of, the jury ' to the different circumstances relied upon by the defendant, among which was the pressing of the witness, Pritchard’s, arm, and remarked that they might consider it, in con-nexion with the question put and withdrawn by the plaintiff’s counsel.

The jury returned a verdict for the defendant, whereupon the plaintiff’s counsel moved for a new trial, because the Court had rejected the testimony of the witness, Prit-chard’s, impression, as to the meaning of the plaintiff in pressing his arm, and, also, because the Court had stated to the jury, that they might take into consideration the fact, that the plaintiff’s counsel had asked, and then withdi’awn, the question, whether the said witness had desisted from bidding, in consequence of the pressure of his arm by the plaintiff, when the defendant’s counsel had omitted to remark upon it. The motion was overruled, and a judgment given, from which the plaintiff appealed.

Moore, for the plaintiff.

Heath, Ehringhaus, Jordan and Smith, for the defendant.

Nash, J.

We do not perceive any error committed by his Honor, in the Court below, either in rejecting the testimony of the impressions of the witness, Pritchard, or in calling the attention of the jury to the question put by the Plaintiff’s counsel, and then withdrawn by him.

As to the first point, it admits of no controversy. The general rule is, that a witness must speak'to facts : and opinion, as evidence, is pretty much confined to questions of science, art, or skill, in some particular branch of trade, and to cases of sanity and the like. These are excepted cases, and in no instance, that I know of, has such an opinion, as required in this case, been permitted. The Witness was requested to state his impression from- an act, of the intention of another' person in that act. It was nothing but an opinion.

The plaintiff’s attorney, by the permission of the Court, asked the witness, Pritchard, whether he desisted from bidding, in consequence of the pressure of his arm by the plaintiff) but withdrew the question before it was' answered. In order to answer properly the second exception, it is necessary to look at the point in issue between the parties. The defence to the action was, that the plaintiff and defendant were acting in concert at the sale, upon an agreement that the defendant should purchase the property at a small price, so that upon a resale there might be a surplus for the benefit of the plaintiff. The case states, that, in commenting upon the defence, his Honor called the attention of the jury to the different circumstances relied upon in the defence, among which was the pressure of Pritchard’s arm, “ that they might, in connexion with it, consider the question put, and withdrawn by the plaintiff’s counsel.” In this there was no error: it was a. fact transpiring in the course of the trial, brought before the jury by one of the parties and in relation to the question under investigation. The jury surely were at liberty, in weighing the testimony, to take it into their consideration : and if they could legally do so, the Court, in charging them, had a right to direct their attention to it. We dp not consider a Judge, under the act of 1794, in delivering his charge on the facts of a case, to be a mere machine to detail to the jury the evidence just as it occurred, and in the order it occurred : but it is his duty, when he does charge upon it, to collate it and bring it together in one view, on each side, with such remarks and illustrations as may properly direct their attention. Nor is it any error in a Judge or any officiousness to bring to the notice of the jury principles of law, or facts, bearing upon the case which counsel may have omitted in argument. If important to the decision of the case, it is his duty to do so. What effect the fact would have upon the mind of the jury in this case was for them to decide ; per se it stood in direct connexion with the question previously asked, and answered either way might have had an important bearing upon the decision. We see no error in the charge. State v. Moses, 2nd Dev. 452.

Per Curiam. Judgment affirmed.