
    Commonwealth versus David L. Child.
    If a judge of this Court refuses to report a case tried before him, the full Court cannot interfere; it is a matter within his discretion.
    It is not incumbent on a judge to report his charge to the jury in extensof but only as to such points as are made the ground of objection.
    A judge has a right to express to the jury his own opinion in regard to the weight of evidence.
    
      Fletcher and Gardiner offered the petition of the defendant, in which he represents, that in January 1829 he was tried before Morton J. upon an indictment for an alledged libel upon John Keyes ; that he endeavoured to satisfy the jury by proof, that the supposed libellous matter was true, or if not true, that he had such reasonable grounds to believe it to be true, and such good motives and justifiable ends for the publication, as necessarily rebutted the imputation of malice, and established his plea of not guilty ; that much evidence was introduced (part of which is stated in the petition,) and the trial occupied several days ; that the judge addressed the jury at much length, and summed up, weighed, compared and commented upon the principal evidence in the case, and stated his opinions and inferences therefrom in divers matters of fact, as well as his views of the law applicable thereto ; that the defendant and his counsel considered the charge as erroneously directing and influencing the jury upon divers matters of fact and especially upon the matter of fact, whether or not the defendant had published the supposed libel with a malicious and criminal intent, and as tending, upon the whole, to influence the jury, by the weight of his opinion, to find a verdict against the defendant, and the jury, under these instructions, did find a verdict accordingly ; that the defendant believes that the verdict is_ against law and evidence, and that but for the matters excepted to in the charge, the jury would have acquitted him ; that on the 17th of January and within twenty-four hours after the rendering of the verdict, he gave notice to the counsel for the government and to the judge, that he should move for a new trial; that he immediately proceeded to prepare a full report of the evidence and of the charge, for the purpose of presenting and filing his exceptions thereto, and that the report was completed with all reasonable diligence and despatch ; that the Court was adjourned without day on the 31st of January, and that several days before the adjournment,' the report, being completed, except that some slight alterations were required to put it into the usual form of reports for the whole Court, was presented to the judge as a report of the case ; that the judge remarked that it appeared to be very voluminous, and that he should prefer that it should be examined by the solicitor-general; that it was taken back for the purpose of submitting it to the solicitor-general and of correcting its form ; that it w'as sent to the solicitor-general, and that on the 29th or 30th of January he returned it, approv ing of the statement of the charge as a correct report, but declining to examine the report of the evidence ; that on the 31st of January the counsel of the defendant met for the purpose of drawing their exceptions, to the charge so reported and approved, and with the intention of proceeding from Boston, where they then were, to the place where the Court was sitting, but that during their consultation they received notice of the adjournment of the Court; that owing to other engagements of the defendant’s counsel, the exceptions to the charge were not immediately put into form, but that they were completed on or before the 20th of February ; that on that day the report of the charge, together with the exceptions thereto, and a written motion for a new trial, on the grounds of misdirection, and because the verdict was against law and evidence, were forwarded to the judge, accompanied by a letter from the defendant’s counsel, praying the judge to report so much of the evidence as might be necessary to give the defendant the full benefit of his exceptions, and stating that they were desirous of having the whole charge reported at length, with the omission of the introductory paragraph, as the full benefit of the defendant’s exceptions could in no other way be secured to him, especially as he and his counsel were of opinion, that the general tendency of the charge as a whole was to affect the jury unfavorably towards the defendant’s side of the case, though unintentionally on the part of the judge ; that on the 14th of September, a brief report, signed by the judge, was filed in the clerk’s office; that this report contains none of the evidence, and states only a few general instructions to the jury, and that the defendant excepted to the same, and also made a motion in arrest of judgment, both of which were for the consideration of the whole Court.
    
      
      OH 16íA, 1829.
    
      The petition further represents, that the report of the judge does not give to the defendant the benefit of his exceptions to the charge as delivered on the trial, nor any of them, and does not present any of the questions which the defendant proposed to present to the whole Court; and that the instructions to the jury contained in this report, are essentially different from the instructions as understood at the time of the trial, and that this report, as the defendant believes, is erroneous.
    Wherefore the defendant prays the Court, that a report may be made of the charge delivered by the judge, and of so much of the evidence as may' be requisite to give the defendant the full benefit of his exceptions made as above stated.
    Parker C. J. This seems to be a novel and unprecedented application.
    
      Davis, Solicitor-General.
    If the object is to obtain a different report from the one on file, the application should have been made to the judge who tried the cause. The full Court cannot take cognizance of this petition.
    Fletcher, for the defendant.
    • The question is, whether, under the circumstances, the defendant is now entitled to the benefit of a report, in order to make his exceptions ; and for this purpose it is necessary that the charge should be reported at some length. We believe this is not unusual in England ; and the remarks of the judge in the course of the trial are [here made the subject of discussion on an application for a new trial. Rex v. Russell, 6 Barn. & Cressw. 566.
    
      Oct. 17th, 1829.
   Parker C. J.

There are probably but few cases in which some incidental remarks of the judge during the trial may not be liable to objection, but I doubt whether .they would furnish ground for a new trial.

We do not wish to settle the question before us without deliberating upon it. No doubt parties have rights even against members of the Court. On the other hand, the judges have rights in regard to the time in which they shall be called upon to make reports, and as to the manner of making them. In a case in Pennsylvania, the court object against reporting at length the charge of the judge.

Parker C. J. now said in substance, that this petition must be considered as an application to the whole Court to compel one of its members to perform his duty, or as an appeal from the judge at nisi prius, or as an application to the whole Court for their advice to the judge ; and in either view we have no power to interfere. Whether the judge shall make a report or not, is a matter entirely within his discretion. There is a statute provision which is compulsory on the judge at nisi prius. It allows a party aggrieved to allege exceptions; which being reduced to writing and found conformable to the truth of the case, are to be allowed and signed by the judge. But the bill of exceptions is required to be presented to the judge before the adjournment of the court without day ; and for a good reason, namely, because many things said and done at the trial rest only in the judge’s memory.

In the case before us, soon after the verdict, notice was given to the judge that there would be a motion fpr a new trial, but Up0n what ground, was not stated. A report, drawn up by the defendant and his counsel, was presented to the judge a day or two before the close of the term. He said it should be submitted to' the solicitor-general. This is usual where a report is drawn up by one of the parties ; and if the other party is satisfied with it, the judge affixes his signature. Here the solicitor-general certifies that the charge is correctly reported, but that he has not examined the statement of the evidence. Some weeks afterward the charge is sent to the judge, with many exceptions taken to it, and he is requested to report the case. He accordingly makes a report, but it is not satisfactory to the defendant. And the ground of complaint is, that he does not report the whole charge. Now we think that in no case is a judge required to report the charge in extenso. Indeed it would be requiring an impossibility, as the charge is delivered generally ore tenus.

But it will be objected, that the judge may have said many things tending to make the jury incline to one side or the other. This would seem to raise the question, whether a judge may reason upon the facts, and if he intimates to the jury his own opinion of the evidence, whether this shall be cause for setting aside the verdict. We know of no rule requiring the judge to conceal his opinion. He is to comment upon the evidence. Is he to do it by merely stating that one witness says this thing and another says that ? Has he not power to say, this evidence is weak and that evidence is strong ? For myself, where the evidence on one side is nearly balanced by counter evidence, I endeavour to leave it to the jury to decide which scale preponderates ; but if the evidence on one side is strong, compared with that on the other side, I think it my duty to make the jury comprehend that it is so.

It is said the tendency of the judge’s remarks was, to affect the jury unfavorably to the defendant’s side of the case. The next step will be, to move for a new trial on account of the expression of countenance of the judge. These things, if evils, are unavoidable. Confidence must be reposed in the integrity of the judge. If an unjust partiality is shown, the remedy must be in one of the modes pointed out in the constitution. Though an undue influence may be exerted upon the jury by the manner of a judge, yet the law presumes intelligence in the jury ; and if they perceive any improper attempt of the kind, they will be more likely to find a verdict against the opinion of the judge, than in accordance with it. Undoubtedly the manner of instructing the jury sometimes has an undue effect upon their verdict, but it results from the imperfection of the system. If the evidence in such case does not sustain the verdict, a new trial will be granted ; there is no other remedy.

Morton J.

The opinion of the Court, just delivered by

the chief justice, was formed upon the representations contained in the defendant’s petition ; and no inquiry into their correctness was deemed necessary or proper. But, in fact, many of them are so erroneous, that my duty to the Court, as well as to myself, seems to require of me a brief explanation of the transaction.

During the trial, one point of law only was raised and discussed. In relation to this, I adopted, substantially, the doctrine contended for by the defendant’s counsel, and I did not believe that, upon reflection, they would except to this part of the charge. No dissatisfaction with any principle of law advanced to the jury was then expressed ; and I did not expect that the defendant’s counsel would finally desire to have the case reported. I however, immediately after the termination of the trial, requested them to make a motion for a new trial, stating distinctly the grounds on which they relied and the points in reference to which they .wished to have a report made. And afterwards, when they proposed to deliver it to me, I desired them first to show it to the solicitor-general. This the defendant’s counsel misunderstood to be a request to them to prepare a report of the case. And although, in pursuance of this misapprehension, they were engaged in preparing a full report of the case, yet I never understood that the paper produced by them was any thing more than a statement of their views and the points which they wished to have presented in the report which I was to prepare.

■ More than six weeks after the trial, and after the defendant had published a report of it, I received from the defendant’s counsel a paper purporting to be a report of my charge to the jury in extenso. This report (which appeared to be a copy of the charge as printed in the pamphlet) they wished me to sign as it was, or, if incorrect, to correct it and then sign it. But upon examination, I found it so inaccurate and so very different from the charge as it was delivered, that I could neither adopt it nor derive much aid from it in preparing a correct report. Indeed, after such a lapse of time, it was impossible to make an accurate report of the whole charge ; nor -could -it have been done, had application been made immediately after its delivery.

Charges to juries must necessarily be made orally, and it would, in all cases, be impracticable to preserve literal reports of them. It is not the right of either party to have an exact account of every thing said to the jury ; nor would it at all promote the correct administration of justice. It is enough that all principles of law laid down by a judge at nisi prius, are open to exceptions, and that great facilities are furnished for the revision of them by the whole Court.

To the report of the charge which was sent to me by the defendant’s counsel, forty-six exceptions were taken ; besides a motion for a new trial, because the verdict was against law and evidence. Principles and remarks were imputed to me which I never advanced, and to these erroneous statements exceptions were tendered. Had the charge been reported as delivered, almost all of them would have been inapplicable.

It was literally impossible for me to make the report which was desired by the defendant’s counsel. But had it then been in my power to state the charge verbatim, I should have deemed it improper to establish so inconvenient a "precedent.

1 understand the rule to be, that if any party wishes to have a point of law saved, or any principles stated by a judge to the jury revised, he must raise the point or take the exception at the time ; and that if he then omits to do it, he cannot after-wards claim a right to have it presented by the judge. I am not disposed to adhere very rigidly to this rule.

In the trial of the defendant, I had carefully reduced to writing, and read from my brief, some of the main principles advanced to the jury as applicable to the case. About these I cannot be mistaken. And even at this late day, if the defendant’s counsel desire it, they may have any of these principles reexamined by the whole Court.

I also took pretty full minutes of the evidence. And although they differ in many respects from the printed report, yet, as they were taken with great care, I have confidence in their accuracy. If the defendant’s counsel wish to move for a new trial because the verdict is against evidence, they may have my entire minutes on which to found it; and this is the only-report of the evidence now in my power to make.

In reply to some remarks of the defendant’s counsel, Morton J. said he did not mean to impute to them any intentional misrepresentation of his charge. 
      
       See Jarman v. Howard, 3 Marshall, (Ken.) 384 ; Conner v. State, 4 Yerger, 137; Sneed v. Creath, 1 Hawks, 309; Gordon v. Tabor, 5 Vermont R, 103: Burt v. Gwinn, 4 Harr. & Johns. 507; Roper v. Stone, Cooke, 499; Matson v. Fry, 1 Watts, 433; Governor v. Shelby, 2 Blackiord, 26; Stauffer v. Lat-show, 2 Watts, 167.
     