It has been held that a judgment will not be reversed because a party was denied the right to open and close to the jury.12

12 Hall v. Weare, 92 U. S. 728, 23 L. ed. 500; Day v. Woodworth, 13 How. 363, 14 L. ed. 181; Lancaster v. Collins, 115 U. S. 222, 129 L. ed. 373.

§ 473j. Charge to jury. The judge may comment upon the facts, provided that, when the evidence is conflicting, he makes it clear to the jury that they are not bound by his opinion.1 courts into contempt. *** And you are advised that this court is of the opinion that the facts in this case justify you in the conclusion overwhelmingly that it was the policy, and therefore the agreement, for years of this national organization to prevent mining of nonunion coal for the unlawful purposes named in this complaint that it might not come into competition with union-mined coal; that there is no question in this court's mind but that that strike was ordered down there for that purpose to prevent the mining of nonunion coal in these plaintiff's mines; that the strike was called by those who were the instrumentality of the greater organization, the general organization, the defendants and their act was its act, and that they put into motion the force that destroyed this property. Why, this court has not

§ 473j. 1 Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545, 30 L. ed. 257; St. Louis, I. M. & S. Ry. Co. v. Vickers, 122 U. S. 360, 30 L. ed. 1161; U. S. v. Phila. & R. R. Co., 123 U. S. 113, 31 L. ed. 138; Rucker v. Wheeler, 127 U. S. 85, 93, 32 L. ed. 102, 105; Lovejoy v. U. S., 128 U. S. 171, 32 L. ed. 389, infra, § 479; Young v. Corrigan, C. C. A., 210 Fed. 442; Smith v. St. Louis, I. M. & S. R. Co., C. C. A., 214 Fed. 737; Beyer v. U. S., C. C. A., 257 Fed. 39; In United Mine Workers of America v. Coronado Coal Co., C. C. A., 258 Fed. 829, 849.

The Circuit Court of Appeals refused to direct a new trial because of the following language in the charge:

"I want to say to you that the court has no thought at all of discharging you. You were sworn upon your oaths to do your duty as jurors. In the opinion of the court there is no reason on earth why reasonable men, with a due regard for right, and each having due respect and consideration for the other's opinion, should not arrive at a conclusion in this case. What would be a fortune to either of you, or (to me), has already been spent and a failure to render justice in this and other (cases) is what brings the

Fed. Prac. Vol. III-15

a thought that there would ever
have been any trouble there if it
had not been for the prevention of
the mining of nonunion coal. Now,
that is the judgment of this court,
and if it were my duty to decide it
I would decide it here. Now, you
are not bound by my opinion, I
have a right to give you my judg
ment; however, you are the sole and
exclusive judges of the facts, and
it is for you to determine these is-
sues of fact independent of my
judgment.
* If there is any
question about the law or the re-
sponsibility for this, responsibility

*

It is improper for him to criticize a rule of law which he charges to the jury.2

It is usually in the discretion of the court whether or not to permit the jury to consider the pleadings. Where the defendants filed separate answers with separate defenses it was held to be a fatal error for the court to read to the jury one of these which contained allegations affecting the liability of another defendant. In the Third Circuit, in the Districts of Pennsylvania the Federal Courts follow the State practice making it error for the court to state or to permit ' counsel to state in the presence of the jury the amount of damages claimed by the plaintiff. This practice is not followed in another circuit although the cause of action arose in Penn-. sylvania.

of the greater organization, that is
for the higher court to say; but you
cannot reach it until you have done
your duty-you are the stumbling
block in the way and this whole time
is wasted. Now, after I have said
what I have, I am going to say that
I have no thought of discharging
you; you must return a verdict in .
this case.
There was also some
question as to the sufficiency of the
exceptions.

But see Starr v. U. S., 153 U. S.
614, 625, 38 L. ed. 841; Fuller v.
N. Y. Life Ins. Co., C. C. A., 199
Fed. 897.

2 Bergen Point Iron Works v. Shaw, C. C. A., 249 Fed. 466.

3 Chicago & E. R. Co. v. Ohio City Lumber Co., C. C. A., 214 Fed. 751.

4 Nupen v. Pearce, C. C. A., 235 Fed. 497.

5 Vaughan v. Magee, C. C. A., 218 Fed. 630.

6 Philadelphia & R. Ry. Co. v. Skerman, C. C. A., 247 Fed. 269; Allis v. U. S., 155 U. S. 117, 39 L. ed. 91.

The following charges have been

66

* *

approved in Allen v. U. S., 164 U.
S. 492, 17 Sup. Ct. 154, 41 L. ed.
528. That in a large proportion
of cases absolute certainty could
not be expected; that although the
verdict must be the verdict of each
individual juror, and not a mere ac-
quiescence in the conclusion of his
fellows,
* if much the larger
number were for conviction, a dis-
senting juror should consider
whether his doubt was a reasonable
one which made no impression upon
the minds of so many men, equally
honest, equally intelligent with him-
self. If, upon the other hand the
majority were for acquittal, the
minority ought to ask themselves
whether they might not reasonably
doubt the correctness of a judgment
which was not concurred in by the
majority."'

In Boston & M. R. R. v. Stewart, C. C. A., 254 Fed. 17, after the jury had been out for eighteen hours without agreement the following charges were made and subsequently approved by the Circuit Court of Appeals: "That those in the minority should not unreasonably

The court may recall a jury which has retired and give new instructions, even under extraordinary circumstances in the absence of counsel, although usually, it should not, in the absence of counsel, give further instructions, as to the correctness of which there can be any question. Counsel should be notified by telephone or otherwise that additional instructions. are to be given when this is practicable.10 If given in their absence, the supplemental charge should be made in the court room,11 where it is the safer practice to wait while the jury are out, in order to provide for such a contingency.

The absence of counsel from the court room when instructions are given to the jury after they have retired cannot excuse the failure to except thereto.12 Where the attorneys had agreed to leave the court room and stipulated that the clerk might take the verdict in their absence, the successful party was estopped from objecting that the exception taken by the other to a direc

*

*

stand upon their own opinions, but should be admonished by the fact that the majority of their associates were assembled with them for the same purpose, and with the same responsibility. *The logic of that does not mean that a juror should lightly surrender an opinion which he conscientiously finds himself holding, but it does admonish the juror or jurors in minority to stop and consider whether it is probably that he who is here under oath to help decide this case, and finds himself confronted by men of equal intelligence and responsibility in the minority against him, is more likely to be surely right than they upon this highly disputed question about which no man can be absolutely certain anyway. Is it probably, I am right or that the majority are right? Absolute certainty cannot be attained, and is hardly to be expected in the majority of civil causes; and while no juror is required to yield his honest and well

*

settled convictions to the judgment of others for the sake of reaching a verdict, it is the duty of a juror, when he finds himself differing with the majority of his fellowmen, equally honest and capable as himself of judging of the weight of evidence, to examine thoroughly and carefully the ground of his own opinion.'' To the same effect are Commonwealth v. Tuey, 8 Cush. (Mass.) 1; Ahearn v. Mann, 60 N. H. 472.

7 Allis v. U. S., 155 U. S. 117, 39 L. ed. 91.

8 Fournier v. Pike, 128 Fed. 991; Yates v. Whyel Coke Co., C. C. A., 221 Fed. 603.

9 Fournier v. Pike, 128 Fed. 991. 10 Fillippon v. Albion Vein Slate Co., 250 U. S. 76; reversing C. C. A., 242 Fed. 258. See Yates v. Whyel Coke Co., 221 Fed. 603.. 11 Ibid.

12 Yates v. Whyel Coke Co., C. C. A., 221 Fed. 603.

tion made in their absence was too late.18 By giving at the request of the jury such a supplemental charge the court does not reopen the case for argument nor for the submission by counsel of additional requests which are not modifications of the supplemental charge then given.14

Exceptions to a charge or to a refusal to charge must be noted before the jury retire.15 The function of the exception is to direct the mind of the trial judge to the point in question so that he may reconsider and change his ruling if convinced that it is erroneous.16 It has been held that an exception is too late when taken after the jury has retired, although this is done at the request of the trial judge.17 An exception may be taken to the court's direction that the exceptions to its charge be taken after the retirement of the jury.18 The court may refuse a request as made too late, when delayed until after the jury was sworn, although before their retirement.19 Rules of court are valid, which require, that requests to charge must be presented to the court and the opposing counsel at the close of the evidence and before the argument; that they be plainly written and so framed that the answer thereto, by a simple affirmation or negation, will be full, direct and explicit.20

In the Southern District of New York it is the custom to receive and consider requests after the charge has been delivered but since requests at that time cannot receive the careful attention they would receive if presented at the close of the evidence, the trial judge is not to be held to the same degree of accountability for erroneously refusing a request then presented as for one presented at a more appropriate time.21 Lengthy

13 Grace v. Louisville & N. R. Co., C. C. A., 255 Fed. 843; § 479, infra. 14 Flexilis Werke, Spezial Tiegel Stahlgiesserei, Gesellschaft Mit Beschrankter Haftung v. Hess, C. C. A., 205 Fed. 850.

15 Phelps v. Mayer, 15 How. 160, 14 L. ed. 643; Drumm-Flato Commission Co. v. Edmisson, 208 U. S. 534, 52 L. ed. 606.

16 Fillippon v. Albion Vein Slate Co., 250 U. S. 76, 81.

17 Mann v. Dempster, C. C. A., 181 Fed. 76.

18 Mann v. Dempster, C. C. A., 179 Fed. 837.

19 Astruc v. Star Co. v. 182 Fed. 705.

20 Keystone Bank v. Safety Banking & Tr. Co., 179 Fed. 727; Baltimore & O. R. Co. v. Wood, C. C. A., 228 Fed. 625.

21 Linn v. U. S., C. C. A., 251 Fed. 476.

requests are disapproved.22 Failure of the trial judge to read special instructions to the jury before handing same to them. cannot be assigned as error, where no objection was made at the time by either party.23 An exception to a charge must be sufficiently distinct and specific to call the attention of the court to the particular vice or error of which complaint is made so that it may see whether the objection is well founded and have an opportunity before the jury retires to make the necessary correction.24 A general exception to the whole charge is insufficient.25