The Circuit Court of the United States in Alabama, by a general
rule, adopted the practice of the state courts which is regulated
by a statute providing that no bill of exceptions can be signed
after the adjournment of the court unless with the consent of
counsel, &c.
But where a judge holding the Supreme Court in Alabama signed a
bill of exceptions under special circumstances after adjournment
and without the consent of counsel, this Court will consider the
exception as properly before it. It is in the power of a court to
suspend its own rules or except a particular case from them to
subserve the purposes of justice.
And the signature of the judge was attached to the bill, in
conformity with the decisions of this Court.
The exception brings up the charge of the court to the jury, but
not the admission of evidence which was objected to on the trial
but to the admission of which no exception was noted.
The charge of the court, being founded on a hypothetical state
of facts of which there was no evidence, was erroneous.
The case is stated in the opinion of the court.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This action was brought by the United States against the
defendant in error as one of the sureties in the official bond of
David E. Moore who was receiver of the public moneys at Demopolis,
in the State of Alabama. Under the instructions given by the court
to the jury, the verdict and judgment were in favor of the
defendant.
A bill of exceptions to these instructions, signed and sealed by
the judge who tried the case, is set forth in the transcript. But
the defendant contends that the exception was not taken by the
United States according to law and the rules and practice of the
circuit court, and that it cannot therefore be regarded as a part
of the record of the proceedings in that court nor considered here
in revising its judgment.
A brief extract from the exceptions, together with the note
attached to it by the judge, will show how this question
arises.
After setting forth the bond and the testimony of several
witnesses, examined on the part of the defendant, the exception
proceeds in the following words:
"The defendant then offered to read in evidence the
depositions
Page 61 U. S. 253
above referred to, when the plaintiff's counsel objected to the
reading of the depositions of McDowell, W. H. Roberts, and George
G. Lyon, as they were severally offered, which objection the court
overruled. The plaintiff's counsel objected to the evidence of D.
C. Anderson, who was examined as a witness by defendant, whose
evidence went to show that Smith, one of the obligors to the bond,
was poor and in straitened circumstances, which objection was
overruled. This, together with the depositions above referred to,
was all the evidence offered by defendant, and the same having been
submitted to the jury, and argued by counsel, the court, at the
request of the defendant's attorneys, charged the jury,"
"That if the jury believe from the evidence that at the time
Breitling's name was signed to the bond, it was understood and
intended that other persons were to sign it as obligors, and he was
to have notice that they did so, and who they were, and then, if
satisfied, was to acknowledge the bond in the presence of
witnesses, who were to attest it, and if this was not done and the
bond was not afterwards ratified by him, the jury ought to find for
the defendant,"
to which charge the plaintiff's counsel excepted.
"And the judge therefore signs and seals their bill of
exceptions, this 15th day of May, 1856, a day after the adjournment
of the court."
"JOHN GAYLE [Seal]"
"
Explanations attached to the Bill of
Exceptions"
"During the term of the court, the attorney for the United
States presented a bill of exceptions. The bill was presented on
Saturday before the court adjourned, which was on Wednesday. On
Monday morning, the bill was handed to the United States attorney,
with the request that he submit it to the opposing counsel. On the
third day after this, the minutes were signed and the court
adjourned."
"I heard nothing further from the bill till the 9th or 10th May,
when it was presented by the plaintiff's attorney again, with the
written objections of the attorneys of the defendant that it should
be signed after the adjournment. The clerk will subjoin this
explanation to the bill of exceptions."
"JOHN GAYLE"
"Filed 15 May, 1856"
The objection stated in the note is founded upon a rule of the
circuit court which in general terms adopts the practice of the
state courts, and the practice of the state courts in relation to
exceptions is regulated by a law of the state, which
Page 61 U. S. 254
provides that no bill of exceptions can be signed after the
adjournment of the court during which the exception is taken unless
by consent of counsel in writing, when it may be signed within ten
days thereafter except in such cases as are otherwise provided.
But the answer to this objection is that the statute of Alabama
and the regulation it prescribes to the courts of the state can
have no influence on the practice of a court of the United States
unless adopted by a rule of the court. And it is always in the
power of the court to suspend its own rules or to except a
particular case from its operation whenever the purposes of justice
require it. The attention of this Court has upon several occasions
been called to this subject, and the rule established by its
decisions will be found to be this: the exception must show that it
was taken and reserved by the party at the trial, but it may be
drawn out in form and sealed by the judge afterwards. This point
was directly decided in the case of
Phelps v.
Mayer, 15 How. 160, and again in
Turner
v. Yates, 16 How. 28. And the time within which it
may be drawn out and presented to the court must depend on its
rules and practice and on its own judicial discretion. In the case
before us, the judge who tried the case has deemed it his duty to
seal and certify the exception to this Court; and under the
circumstances stated in the exception and the note, we think he was
right in doing so, and that this exception is legally before this
Court as a part of the record of the proceedings of the court
below.
In proceeding to examine the points raised upon it and argued in
this Court, it is not necessary to state at large the testimony
given by the witnesses for the defendant, nor the grounds upon
which the United States objects to the admissibility of the
evidence, for it does not appear that the plaintiff excepted to any
one of the decisions of the court overruling his objections. The
exception states that he made the objections which have been argued
here, and that the court overruled them. But the fact that he made
the point at the trial, and the court decided it against him, is
not sufficient to bring the question before this Court. He must
show that he excepted to the opinion. And as there is no evidence
that he did so while the jury was at the bar, the objections to the
testimony of the witnesses are not before us.
It is otherwise, however, in relation to the charge of the court
to the jury. This, it appears, was excepted to, and consequently is
regularly and legally before this Court, and we think the judge
erred in giving it.
It is clearly error in a court to charge a jury upon a
supposed
Page 61 U. S. 255
or conjectural state of facts of which no evidence has been
offered. The instruction presupposes that there is some evidence
before the jury which they may think sufficient to establish the
facts hypothetically assumed in the opinion of the court, and if
there is no evidence which they have a right to consider, then the
charge does not aid them in coming to correct conclusions, but its
tendency is to embarrass and mislead them. It may induce them to
indulge in conjectures instead of weighing the testimony.
In the case before us, we do not see any evidence in the record
which tends in the least degree to prove anyone of the facts
hypothetically assumed in the opinion. If such testimony was given,
it certainly does not appear in the transcript. And upon this
ground, without examining further into the opinion of the court
below, the judgment must be
Reversed.