$277. Assumption of facts in charge.-The duty and the right of the court to state the testimony does not, by implication, authorize it to declare what is proved by the testimony, or what is the result of the testimony. These are questions for the jury.12 The credibility of any evidence which has been offered is for the jury alone. Hence, the court should not, in its charge, assume, as proved, any allegation unsupported by evidence, or on which the evidence is so contradictory that reasonable men may form opposite opinions.13 Whether a fact, upon which the evidence is conflicting, is proved, is for the jury to determine. But where a fact is conceded or is established clearly and satisfactorily by the evidence without conflict or contradiction, the court may assume it as proved, or instruct the jury that there is evidence tending to prove that fact.14 § 278. Necessity for evidence to sustain instruction.-It is not proper for the court to give instructions which, though they embody a correct statement of the law of evidence, are merely legal "People v. Flynn, 73 Cal. 511, 15 Pac. 102; People v. Casey, 65 Cal. 260, 3 Pac. 874; State v. Stewart, Del. Gen. Sess., 67 Atl. 786; Commonwealth v. Thomas (Ky.), 104 S. W. 326, 31 Ky. L. 899; Hall v. State, 134 Ala. 90, 32 So. 750; People v. Matthai, 135 Cal. 442, 67 Pac. 694; Doyle v. State, 39 Fla. 155, 22 So. 272, 63 Am. St. 159; Suddeth v. State, 112 Ga. 407, 37 S. E. 747; Hellyer v. People, 186 Ill. 550, 58 N. E. 245; State v. Bige, 112 Iowa 433, 84 N. W. 518; State v. Lewis, 56 Kan. 374, 43 Pac. 265. "Newton v. State (Miss.), 12 So. 360; State v. Hope, 102 Mo. 410, 14 S. W. 985; Horn v. State, 98 Ala. 23, 13 So. 329; Brown v. State, 72 Miss. 997, 17 So. 278; Commonwealth v. McMahon, 145 Pa. St. 413, 22 Atl. 971; People v. Lang, 104 Cal. 363, 37 Pac. 1031; Scott v. People, 141 Ill. 195, 30 N. E. 329; State v. Lewis, 56 Kan. 374; 43 Pac. 265; Fowler v. State, 100 Ala. 96, 14 So. 860; Butler v. State, 2 Ga. App. 397; 58 S. E. 685. 14 Koerner v. State, 98 Ind. 7, 13; Spigner v. State, 103 Ala. 30, 15 So. 892; Hawkins v. State, 136 Ind. 630, 36 N. E. 419; Morgan v. State, 48 Ohio St. 371, 27 N. E. 710; State v. Meshek, 61 Iowa 316, 16 N. W. 143; State v. Aughtry, 49 S. Car. 285, 26 S. E. 619, 27 S. E. 199; Wiborg v. United States, 163 U. S. 632, 41 L. ed. 289, 16 S. Ct. 1127, 1197; Jeffries v. State, 61 Ark. 308, 32 S. W. 1080; State v. Zinn, 61 Mo. App. 476; Holliday v. State, 35 Tex. Cr. 133, 32 S. W. 538; People v. Sternberg, III Cal. 3, 43 Pac. 198; State v. Kinney, 21 S. Dak. 390, 113 N. W. 77; State v. Taylor, 57 W. Va. 228, 50 S. E. 247; People v. Phillips, 70 Cal. 61, 11 Fac. 493; Hawkins v. State, 136 Ind. 630, 36 N. E. 419; State v. McKnight, 1119 Iowa 79, 93 N. W. 63; Pisar v. State, 56 Neb. 455, 76 N. W. 869; State v. Nickels, 65 S. Car. 169, 43 S. E. 521. abstractions, because they are not sustained by any evidence in the case.15 Thus, it is not error for the court to refuse to charge upon evidence, which was excluded,16 and a fortiori, on evidence, which has not been offered, and which is absolutely irrelevant," because the issue upon which it would alone be relevant does not exist in the case. § 279. Directing a verdict.—In a civil case the court has the legal power to direct a verdict for plaintiff when his cause of action is admitted, or even when the evidence or matter of defense, if true, constitutes no defense in law.18 So if the plaintiff fails to substantiate his allegations by evidence showing at least a prima facie case, there is nothing to go to the jury, and the court may direct a nonsuit. In other words, where the case turns upon an issue of law, the court may, in a civil case, direct the jury to find a verdict according as it determines the law, for the reason that it has the power to set aside a verdict which is against the law. But the court cannot in a criminal trial set aside a verdict of acquittal. Hence, to permit it to direct a verdict of guilty would be to allow it to do indirectly that which it has no power to do directly. For this reason the jury cannot be directed to render a verdict of guilty, no matter how convincing the evidence may be, even where the facts are admitted or settled beyond any possibility of dispute. The constitutional right of the accused to have his guilt or innocence determined by a jury of his peers cannot be denied by the arbitrary exercise of the judicial power.19 In a criminal 15 State v. Robinson, 35 S. Car. 340, 14 S. E. 766; Bostic v. State, 94 Ala. 45, 10 So. 602; Hill v. Commonwealth, 88 Va. 633, 14 S. E. 330, 29 Am. St. 744; Crane v. State, III Ala. 45, 20 So. 590; Morearty v. State, 46 Neb. 652, 65 N. W. 784; Doyle v. State, 39 Fla. 155, 22 So. 272, 63 Am. St. 159. 16 Commonwealth v. Cosseboom, 155 Mass. 298; 29 N. E. 463. Felker v. State, 54 Ark. 489, 16 S. W. 663; Morgan v. State, 48 Ohio St. 371, 27 N. E. 710; Massey v. State, 29 Tex. App. 159, 15 S. W. 601; Graff v. People, 134 Ill. 380, 25 N. E. 563; Doyle v. Feople, 147 Ill. 394. 35 N. E. 372; Jackson v. State, 91 Ga. 271, 18 S. E. 298, 44 Am. St. 22. 18 United States v. Taylor, 3 McCrary 500, 505. 19 State v. Wilson, 62 Kan. 621, 64 Pac. 23, 52 L. R. A. 79; United States v. Taylor, 11 Fed. 470, 472, 3 McCrary 500; United States v. Battiste, 2 Sumn. 240, 243, 24 Fed. Cas. 14545; Commonwealth v. Werntz, 161 Pa. St. 591, 29 Atl. 272; Tucker v. State, 57 trial under a plea of not guilty, no admission of a cause of action by the state can be implied. This plea puts in issue the credibility of the state's evidence, even if it is otherwise uncontradicted, because of the presumption of innocence which compels a determination by the jury. If no question of intent is involved in the criminal transaction, and the facts are overwhelmingly proved or admitted, so that the only question is, has a statute been violated? the court may properly point out that the law as applied to the facts shows the defendant's guilt, and instruct the jury that it is their duty to convict.20 The court cannot, during the progress of the trial, instruct the clerk to enter a verdict of not guilty and then discharge a prisoner. If there is no evidence tending to prove the offense charged, and the only issue is one of law, it is the duty of the court to direct an acquittal, and erroneous not to do so.21 And it has been held that Ga. 503, 505; State v. Picker, 2 Mo. 20 People v. Neumann, 85 Mich. 98, 48 N. W. 290; People v. Elmer, 109 Mich. 493, 67 N. W. 550. But where intent is in question, an instruction that if the jury believe the evidence it is their duty to find the defendant guilty, is erroneous as withdrawing the question of intent from them. Perkins v. State, 50 Ala. 154, 159. "A charge to the jury, that upon the facts testified to, assuming them to be true, it would be their duty to convict the prisoner, if ever proper, would be so only in the very rare cases in which the force of the facts proved should be such, as to make the inference of criminal intent, an 32-UNDERHILL CRIM. Ev. inference of law and not of fact." Duffy v. People, 26 N. Y. 588. 21 State v. Trove, I Ind. App. 553, 27 N. E. 878; Commonwealth v. Lowrey, 158 Mass. 18, 32 N. E. 940; Commonwealth v. Ruddle, 142 Pa. St. 144, 21 Atl. 814; People v. Bennett, 49 N. Y. 137; State v. Green, 117 N. Car. 695, 23 S. E. 98; State v. Warner, 74 Mo. 83, 85; People v. Besold, 154 Cal. 363, 97 Pac. 871; People v. Minney, 155 Mich. 534, 119 N. W. 918; Murphy v. State, 124 Wis. 635, 102 N. W. 1087. Cf. People v. Daniels, 105 Cal. 262, 38 Pac. 720, where the court has power only to "advise" an acquittal. Feople v. Roberts, 114 Cal. 67, 45 Pac. 1016. "In cases of weak and unsatisfactory evidence, the court can always impress a jury with the benign principles of the common law established for the protection of the innocent, that the prosecution are bound to establish a clear case; that the prisoner is entitled to the benefit of all reasonable doubts, and that it is better that many guilty prisoners should escape than that one innocent even when the evidence is insufficient in the opinion of the court. to support a conviction on a motion for a new trial, it becomes its duty, with or without22 a request, to direct an acquittal. A request to have the jury directed to acquit must state specifically the grounds on which it is based. 23 § 280. Order and manner of introducing the proof.-Ordinarily in all judicial proceedings the party who has the burden of proof must, in the opening, introduce all the facts in evidence which constitutes his case. He is required then to make out a prima facie case only, and need not anticipate his adversary's case or attempt to meet his evidence until the proof of the latter is heard. In the case of homicide and other serious similar criminal offenses, it is within the judicial discretion to require the state to prove the corpus delicti at least prima facie, before admitting evidence to connect the accused therewith. 23a After the prosecution has exhausted its case and the accused has had a full opportunity to introduce all the evidence upon which he relies for an acquittal, the court may permit the introduction of rebutting evidence on the part of the state. By rebutting evidence is meant not merely evidence which contradicts the witnesses upon collateral and irrelevant points, or which is corroborative and confirmative of that which preceded it, but evidence which squarely meets and controverts some affirmative fact or facts which the adversary has attempted to prove.** introduce its proof is usually a matter of judicial discretion. Davis v. State, 51 Neb. 301, 70 N. W. 984; State v. Pruett, 49 La. Ann. 283, 21 So. 842; Brooke v. People, 23 Colo. 375, 48 Pac. 502; State v. Remington, 50 Ore. 99, 91 Pac. 473; State v. DeHart, 38 Mont. 211, 99 Pac. 438; People v. Carson (Cal.), 99 Pac. 970; Caswell v. State, 5 Ga. App. 483, 63 S. E. 566; Crawford v. United States, 30 App. Cas. D. C. 1; Shires v. State (Okla. Cr. App.), 99 Pac. 1100. 24 State v. Parish, 22 Iowa 284: People v. Mayes, 113 Cal. 618, 45 Pac. 860; Thomas v. State, 47 Fla. § 280a. The credibility of detectives and experts.-The evidence of private detectives is justly regarded with some suspicion by the courts, but there is no rule of law that their testimony is to be weighed by any other method than that employed in the case of other witnesses. 25 It is usually a custom, as matter of practice, to caution the jury to be very careful in estimating the evidence of private detectives. This matter, however, is largely in the discretion of the court.26 It has been held improper for the court as invading the province of the jury to instruct that the testimony of private detectives or of public detectives or police officers should be received with caution or with distrust.27 The jury may take into consideration the fact of the interest of the detective or policeman in securing a conviction. The jury in determining his credibility that it would be to his advantage to secure a conviction as tending to give him credit and reputation, but it would hardly be proper for the court to instruct that the interest which the detective has in the conviction would justify the jury in regarding his testimony with suspicion. His motive is relevant and may be considered. It is immaterial, as matter of law, that the detective acts in apparent connection with the accused in the commission of the crime and that he did so for the purpose of procuring the arrest of the accused.28 And the fact that a private detective or police officer procures evidence that a crime has been committed by committing a trespass on the premises occupied by the accused and by watching the accused and others while they engaged in the commission of the crime, does not violate the constitutional prohibition against compelling the party to testify against himself.20 |