LEADING CASES

ON

THE LAW OF EVIDENCE.

THE FUNCTIONS OF JUDGE AND
JURY.

PRELIMINARY NOTE.

WHERE a trial is held before a judge and jury, it is of course necessary to distinguish their respective functions. The Judge has the general conduct of the proceedings, deciding questions of law and practice, including those relating to the production and admissibility of evidence. The jury find the facts, thus dealing with the credibility and weight of the evidence.

But it is the duty of the Judge to instruct the jury in the rules of law and practice by which the evidence is to be weighed; for instance, he should advise them not to convict upon the uncorroborated evidence of an accomplice (see post, p. 93). And the Judge also, in summing up the case to the jury, generally comments upon the weight of the evidence.

With respect to the duty of the Judge thus to deal with the weight of the evidence, there appears to be some difference of opinion. It is said in Powell on Evidence, p. 11, that" in summing up a case to a jury the Judge will, in his discretion, comment or decline to comment, on the weight of evidence. It would appear that the latter course is his strict duty; and that he may be regarded as functus officio when he has laid

the real issues, with the evidence that bears upon them, before the jury, and stated the rules of law applicable to the evidence, and the general principles applicable to the case. Practically, however, this rule is not observed inflexibly; and in many cases, which consist in equal and inseparable parts of law and fact, it is found to be impossible to declare the former without revealing opinions as to the latter."

METROPOLITAN RY. CO. v. JACKSON (1877).

L. R. 5 H. L. 45; 40 L. J. C. P. 121; 24 L. T. 815; 20 W. R. 37.

Questions of law are for the Judge, questions of fact for the jury, to determine. Whether there is sufficient evidence to be left to the jury on the matter in issue is a question of law for the Judge; whether such evidence establishes the matter in issue is a question of fact for the jury.

Thus, in an action for damages caused by negligence, it was held that the Judge was to decide whether there was reasonable evidence to be left to the jury of negligence causing the injury, and for the jury to say whether, and how far, such evidence was to be believed.

LORD CAIRNS, L.C. "The Judge has a certain duty to discharge, and the jurors have another and a different duty. The Judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest importance in the administration of justice that these separate functions should be maintained, and should be maintained distinct. It would be a serious inroad on the province of the jury, if, in a case where there are facts from which negligence may reasonably be inferred, the Judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence ought not to be inferred; and it

would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever."

LORD O'HAGAN. "Your Lordships have never held that, when negligence is alleged, any state of facts assumed to bear upon the issue can be made the subject of inference by jurors, although not really connected with the issue before them. The consequences of such a doctrine would be disastrous, and it is of high importance that the authority of the Judge should restrain a latitude of decision which might often in the result be very inconsistent with reason and justice."

LORD BLACKBURN. "I think it has always been considered a question of law to be determined by the Judge, subject, of course, to review, whether there is evidence which, if it is believed, and the counter-evidence, if any, not believed, would establish the facts in controversy. It is for the jury to say whether and how far the evidence is to be believed. And if the facts, as to which evidence is given, are such that from them a farther inference of fact may legitimately be drawn, it is for the jury to say whether that inference is to be drawn or not. But it is for the Judge to determine, subject to review, as a matter of law, whether from those facts that farther inference may legitimately be drawn."

LORD GORDON. "The duty of a Judge in such a case is an exceedingly delicate one, as the line of division between what is proper to be submitted to the jury, as necessary to support a charge of negligence in point of law, and what may be submitted to the jury as sufficient to support a charge of negligence in point of fact, is often a very narrow one. But I agree that there is in every case a preliminary question, which is one of law, namely, whether there is any evidence on which the jury could properly find the question for the party on whom the onus of proof lies. If there is not, the Judge ought to withdraw the question from the jury, and direct a nonsuit if the onus is on the plaintiff, or direct a verdict for the plaintiff if the onus is on the defendant."

Note.-The following matters have, among others, been held to be matters of fact for the jury to decide-actual knowledge, real intention, express malice, good faith, reasonable skill, reasonable time, due diligence, negligence, necessaries for infants, and questions of foreign law.

BARTLETT v. SMITH

(1843).

12 L. J. Ex. 287; 7 JUR. 448; 11 M. & W. 483; 63 R. R. 664.

The admissibility of evidence, documentary or otherwise, is a question of law for the Judge; and, if its admissibility depends on certain facts, the Judge should himself adjudicate upon such facts without submitting them to the jury.

It was objected by the defendant at the trial, that a bill of exchange with a foreign stamp could not be read, on the ground that it was drawn in this country. Evidence of that fact was tendered and refused at that stage, but was afterwards received as part of the defendant's case and submitted to the jury. It was held that the Judge ought to have received evidence of the place of drawing, in the first instance, to enable him to decide upon the admissibility of the bill, and that he ought not to have submitted the evidence to the jury.

LORD ABINGER, C.B. "All facts which are necessary to be proved with a view to the reception of evidence are for the consideration of the Judge, and he is to receive evidence respecting them for his own satisfaction. He might, indeed, if he pleased, ask the opinion of the jury, but still the decision ought to be his own. A Judge should receive evidence as to the competency of a witness, or the sufficiency of a stamp, which is good upon the face of it, and ought to determine these questions for himself, instead of submitting them to the jury."

PARKE, B. "This is one of the many cases in which a Judge ought to receive evidence for his own satisfaction, and ought not to submit it to the jury."

ALDERSON, B. "Where the admissibility of the evidence is a question for the Judge, the facts upon which that admissibility depends, are to be determined by him and not by the jury. If another rule were to prevail, it would always be left to the jury to decide upon the admissibility of evidence."

Note.-Questions of admissibility, which the Judge decides, include such questions as-whether the fact offered in evidence is relevant,