
    GARRABRANDT v. BOSTON MOLASSES COMPANY.
    San Juan,
    Law,
    No. 1170.
    On Motion fob New Tbiae.
    Jury Trial — Argument of Law.
    1. In the Federal courts the jury finds the facts from the evidence under direction of the court on the law, and the court may direct that the argument of all law points be directed to the judge, and not to the jury.
    New Trial — Surprise.
    2. The fact that it is discovered after a trial that a possible witness would have given testimony different from that of a witness on the trial is not ground for granting a new trial.
    
      Opinion filed February 4, 1919.
    
      Mr. II. JR. Francis for plaintiff.
    
      Mr. Charles Ilartzell for' defendant.
   HamiltoN, Judge,

delivered tbe following opinion:

Tbe trial in this case was itself a second trial and resulted in a verdict for tbe plaintiff of $5,000 as against one of $8,600 previously. There are many grounds set out in tbe motion, but most of them relate to points which were carefully considered upon tbe trial itself. No brief is filed and no reason appears for reconsidering any of these.

1. One of tbe new grounds of tbe application, however, is that, upon tbe court’s attention being called by counsel for tbe defense to argument of law to tbe jury by counsel for plaintiff, tbe court requested that everything’ relating to law be addressed to the court, and not to tbe jury. Tbe difference of function between judge and jury is that tbe jury finds tbe facts of the case from tbe evidence under direction of tbe court on tbe law involved. This is indeed tbe form of- tbe oath administered to tbe jury when sworn to try any issue. In tbe case at- bar tbe court did not decline to consider’ arguments advanced on behalf of tbe plaintiff, nor to give any proper charge proposed by tbe plaintiff. There is more confusion in some of tbe state courts upon tbe subject, but in the Federal courts the judge is supposed to keep tbe consideration of tbe law in bis own bands and give proper instructions to the jury. It is not thought that there was any error in the action taken.

2. Another new ground for the application is that the witness Eduardo Gonzalez testified the Juncos Central shipped a certain "amount of molasses in the two years in question, while the affidavit of the manager of a voluntary sugar association is alleged to show that the Central made a return to that association showing-a considerable larger amount shipped during those respective years, and it is now alleged that the statement by Gonzalez operated as a surprise to plaintiff. The proceedings in the case show that plaintiff made a liberal use of his right to demand subpoenas duces tecum for books and papers from the witness and Central, aild that the witness in question was not only one for the defense and thus subject to rebuttal, but had also been examined on the previous trial. It would be bad practice to grant a new trial because a party has since the trial found evidence contradicting a witness for the opposite side. The time to do this is at the trial itself, and cases would be indefinitely prolonged if that right is to be exercised after adverse verdict. Moreover, in the instance before the court it is doubtful whether the alleged contradiction would have been admissible. The affidavit' of the witness shows that the ■ Central made a certain return to a voluntary association. This does not contradict the witness Gonzalez, for he did not say what return was made by the Central to anyone. It must be presumed that the witness, being the president or otherwise acting as the head of the Central’s business, knew the amount of molasses produced, and this he testified to. The fact that the Central made different statements would not impeach his testimony, and, as the Central was not a party, it is not perceived laow the return could be admitted as an admission.

Tbe motion must therefore be overruled.

It is so ordered.  