Walsworth v. Wood — 7 Wend. 483

Majority

p. 483

Walsworth vs. Wood.

Headnote

A circuit judge may insert in a case such facts as he deems necessary to render his charge intelligible ; he may state his charge as he deems correct; if no charge was delivered, but opinions expressed by him in the hearing of the jury in the progress of the trial, he may with propriety state such opinions in the settlement of the case.

February 9,

Amendment of case. A motion was made to refer to the circuit judge, before whom this cause was tried, the case settled by him, on the allegation that facts had been embodied by him not insisted on by either party, and that a charge to the jury was stated to have been delivered, when in fact no

p. 484

charge whatever had been delivered, although in the progress of the trial the propositions set forth in the charge had been advanced by. the judge in the hearing of the jury.

JS. Butcher, for motion.

J. King, contra.

By the Court,

A circuit judge may with propriety insert in a case such facts transpiring on the trial of •a cause as he conceives necessary to render his charge intelligible, although not insisted on by either party. So he may state his charge in his own words, or in such terms as he chooses to adopt, without reference to the statements of the parties in the case served or amendments proposed. If the cause was submitted to the jury upon the proofs and allegations of the parties without a formal charge, but the judge had expressed his opinion in the hearing of the jury upon questions arising from time to time in the progress of the trial, he may with propriety state such opinions, although they were not embodied in a formal charge to the jury. With these intimations, let the case be referred back to the circuit judge.