{ "id": 8650389, "name": "THOMAS D. HOLLY v. SALLIE D. HOLLY et al.", "name_abbreviation": "Holly v. Holly", "decision_date": "1886-02", "docket_number": "", "first_page": "96", "last_page": "101", "citations": [ { "type": "official", "cite": "94 N.C. 96" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "83 N. C., 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278980 ], "opinion_index": -1, "case_paths": [ "/nc/83/0643-01" ] }, { "cite": "87 N. C., 544", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697192 ], "opinion_index": -1, "case_paths": [ "/nc/87/0544-01" ] }, { "cite": "3 Hawks, 391", "category": "reporters:state", "reporter": "Hawks", "opinion_index": -1 }, { "cite": "93 N. C., 524", "category": "reporters:state", "reporter": "N.C.", "opinion_index": -1 }, { "cite": "87 N. C., 547", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697287 ], "opinion_index": -1, "case_paths": [ "/nc/87/0547-01" ] }, { "cite": "85 N. C., 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278917 ], "opinion_index": -1, "case_paths": [ "/nc/85/0576-01" ] }, { "cite": "87 N. C., 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8695582 ], "opinion_index": -1, "case_paths": [ "/nc/87/0483-01" ] }, { "cite": "89 N. C., 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683450 ], "opinion_index": 0, "case_paths": [ "/nc/89/0543-01" ] }, { "cite": "89 N. C., 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683437 ], "opinion_index": 0, "case_paths": [ "/nc/89/0527-01" ] }, { "cite": "83 N. C., 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278980 ], "opinion_index": 0, "case_paths": [ "/nc/83/0643-01" ] }, { "cite": "87 N. C., 544", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697192 ], "opinion_index": 0, "case_paths": [ "/nc/87/0544-01" ] }, { "cite": "3 Hawks, 391", "category": "reporters:state", "reporter": "Hawks", "opinion_index": 0 }, { "cite": "93 N. C., 524", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 0 }, { "cite": "87 N. C., 547", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697287 ], "opinion_index": 0, "case_paths": [ "/nc/87/0547-01" ] }, { "cite": "85 N. C., 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278917 ], "opinion_index": 0, "case_paths": [ "/nc/85/0576-01" ] }, { "cite": "87 N. C., 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8695582 ], "opinion_index": 0, "case_paths": [ "/nc/87/0483-01" ] } ], "analysis": { "cardinality": 535, "char_count": 11507, "ocr_confidence": 0.516, "pagerank": { "raw": 5.129939153853498e-07, "percentile": 0.9389194119039372 }, "sha256": "4a0c21e2d819324c6d1d80392417f308df8d655a41d459a30fb031d37790e562", "simhash": "1:1fe1b4a59054a5d1", "word_count": 2119 }, "last_updated": "2023-07-14T19:44:11.219650+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THOMAS D. HOLLY v. SALLIE D. HOLLY et al." ], "opinions": [ { "text": "Asi-ie, J.,\n(after stating the case). There was but one point raised by the plaintiff on the bill of exceptions, and that was the refusal of the Court to entertain his exception to the failure of the Court to stop defendants\u2019 counsel in the remarks made by him in the argument before the jury, which it was insisted was an \u201c abuse of privilege.\u201d\nThe plaintiff\u2019s counsel contended it was the duty of the Court to stop the counsel, and its failure to do so was error, and entitles the plaintiff to a new trial. This may be so, if the counsel of the plaintiff had made his objection to the objectional remarks in apt time, but it was made too late. In State v. Suggs, 89 N. C., 527, it was held, that \u201c a party complaining of the abuse of privilege by opposing counsel, must object at the time, so that the Court, when it comes to charge the jury, may correct the error, if one was committed, or the objection will be lost;\u201d and it has been expressly held by this Court, that an objection that the Judge failed to stop counsel in improper remarks to the jury, comes too late waen made after verdict. State v. Sheets, 89 N. C., 543, and Horah v. Knox, 87 N. C., 483.\nThere may be cases when it would be the duty of the Judge to stop the counsel, when his remarks and conduct are in violation of all the rules of the decorum and propriety that should be observed in the administration of justice, when nothing the Judge could say in his charge to the jury could rectify the wrong or efface the prejudice produced. Such was the case of the State v. Noland, 85 N. C., 576, but that was an extreme case, such as has never before occurred in the history of our judicial proceedings, and it is to be hoped will never again occur.\nIt was insisted in the argument before us in behalf of the defendant, that he was entitled to a new trial, because the Judge in his charge to the jury had failed to comply with the requirements of the Act of 1796, The Code, \u00a7413, which requires the Judge to state in a plain and concise manner, the evidence given in the case, and declare and explain the law arising therefrom; and to sustain his position he cited the cases of State v. Jones, 87 N. C., 547, and State v. Rogers, 93 N. C., 524, and other cases of like import might have been cited. But all of these cases, it will be seen, were cases where questions of law were involved, which might be declared the one way or the other, according as the jury might find the facts to be, to which the principles of law were applicable.\nThe Act of 1796 is held to be declaratory of the common law, and that a Judge is not bound to charge the jury unless he chooses to do so, but if he does undertake to charge, then he must conform to the requirements of the Act. State v. Morris, 3 Hawks, 391. What is 'evidently meant by the charge to the jury, are the instructions given by the Judge, upon the law applicable to the facts of the case, but when there is no principle of law involved, he cannot be said to charge the jury in the sense of the statute.\nBut although a Judge is not bound to charge the jury, as Chief Justice Tayhor said in Morris\u2019s case \u201cno Judge would ever refuse to impart such assistance, when it is requested by a jury, nor would he withhold it in any case wherein the nature of the evidence, or the conduct of the cause, led him to believe that his aid would enable them to discharge their constitutional functions with more correctness or facility. But it must of necessity depend upon the circumstances of each case, whether the Judge believes that his aid would be of any efficacy; whether the case be not so plain and intelligible as to render his interference unnecessary, or the evidence so equally balanced as to make it unsafe.\u201d\nThe object of the act of 1796, was evidently intended to be applied to those cases where questions of law arise upon the facts of the case, for the Judge is required \u201cto declare and explain the law arising upon them.\u201d Qai bono recapitulate the facts of a case, where there is no principle of law arising upon them, and it is a pure question of fact, lying entirely within the province of the jury ?\nWhen, in the trial of a cause like that of the State v. Rogers, supra, and others of that class, where the witnesses are numerous, the evidence complicated and conflicting, and there are different principles of law applicable to the different aspects of the case, as presented by the opposing evidence, it is most clearly the duty of the Judge to comply with the requirements of the statute. To refuse to give any charge in such a case would be a gross dereliction of duty, and subject him to just public censure. But when the facts of a case are few and intelligible, and there is no question of law to be charged by the Court, we do not see the necessity of l\u2019ecapitulating the facts, nor do we think it is the duty of a Judge to do so, unless he is requested so to do. State v. Reynolds, 87 N. C., 544, and State v. Grady, 83 N. C., 643.\nIn the case under consideration, there was no question of law involved. It was a simple question whether the land in controversy was included in the devise of the \u201cWillow Branch place.\u201d Thei\u2019e was no request that the Judge should recapitulate the facts, and we are unable to see how his doing so could have aided the jury in coming to a determination upon the facts of the case. It wasa question of preponderance of evidence, exclusively within the province of the jui\u2019y ; and we are of the opinion, therefore, that the charge of the Judge is not obnoxious to the objection of the defendant.\nThe judgment of the Court- below must be affirmed.\nNo error. Affirmed.", "type": "majority", "author": "Asi-ie, J.," } ], "attorneys": [ "Mr. R. B. Peebles, for the plaintiff.", "Mr. W D. Pruden, for the defendants." ], "corrections": "", "head_matter": "THOMAS D. HOLLY v. SALLIE D. HOLLY et al.\nCounsel \u2014 Abuse oj Privilege \u2014 Judge\u2019s Charge.\n1. As a general rule, objections to comments o\u00ed counsel, alleged to be an abuse o\u00ed privilege, must be made before the case is given to the jury, in order that the Court may, by proper directions, prevent any prejudicial'consequences. After verdict the exception should not be entertained.\n2. There may, however, be instances where the abuse of privilege is so gross that it will become the duty of the Judge, ex mero motu, to interfere.\n3. The Judge is not required by the Act of 1796 \u2014 The Code, \u00a7413 \u2014 to \u201ccharge\u201d the jury where the facts at issue are few and simple and no principle of law is involved, unless he is requested to do so ; but in eases where the witnesses are numerous, or the testimony conflicting or complicated, and different principles of law are applicable to different aspects of the case, it is his duty to conform to the requirements of the statute.\n(State v. Suggs, 89 N. 0., 527; State v. Sheets, Ibid., 543; Borah v. Knox, 87 N. C., 483; State v. Noland, 85 N. C., 576; State v. Iones, 87 N. C., 547; State v. Rogers, 93 N. C., 524; State v. Morris, 3 Hawks, 391; State v. Reynolds, 87 N. C., 544; and State v. Grady, 83 N. C., 643, cited and approved).\nCivil ACTION to recover land, tried before Avery, Judge, and a jury, at January Special Term, 1884, of the Superior Court of Beetie county.\nIt was admitted on the trial that both the plaintiff and defendants claim title to the land in controversy, under the will of Augustus Holly. It was in evidence that Augustus Holly owned a very large body of contiguous land, composed of the \u201c Ellenhouse,\u201d the \u201c Willow Branch,\u201d the \u201c Hermitage,\u201d the \u201cJohn Gaskins place,\u201d (bought of John S. Gaskins in 1871), and the \u201cGus Gaskins place,\u201d (bought from the heir-at-law of Augustus Gaskins in January, 1872), the \u201cAshland,\u201d and the \u201cMount Gould place.\u201d The Willow Branch place was devised to the plaintiff, who contended that it embraced the land in dispute. It was admitted that Augustus Holly gave the land in controversy, in 1852, to Augustus Holly Gaskins, because he was named after him, and it was iu evidence that in 1872, hearing that one Byrum, who had married the daughter and only heir-at-law of Augustus Ii. Gaskins, was about to sell the land, the said Augustus purchased it back again, and stated, at the time of the purchase, that it was a part of his father\u2019s \u201cWillow Branch\u201d place, and that he intended to put it back where it came from, and that he intended that it should stay there.\nThe defendant, on the other hand, introduced evidence that Augustus Holly, about the time he bought back the \u201cGus Gas-kins\u201d place \u2014 the locus in quo \u2014 stated that he had done so because he needed it to go with the \u201cJohn Gaskins\u201d place, for the purpose of timber aud wood; that the \u201cJohn Gaskins\u201d land was lacking in timber, and the \u201cGus Gaskins\u201d land was adjoining it, and was well timbered; that after his marriage with the defendant, he stated the same thing; that he used the timber on it for no other purpose, and that he had the crops from the two places put together, and on one occasion stated that, he did so because they were the same. No witness testified that the land in dispute was ever called the \u201cGaskins\u201d place, but several of them testified that it was sometimes called the \u201c Augustus Gaskins place.\u201d\nIn the argument before the jury, the defendants\u2019 counsel indulged in some comments upon the conduct of the plaintiff, which were alleged to be an abuse of privilege, but no objection was made to the remarks at the time, nor was the attention of the Court called to them when the case was submitted to the jut7-\nThe Court charged the jury as follows: \u201cThe Court can aid you but little in this case, as the questions involved are chiefly those of fact, of which you are the sole judges. Both parties admit title in Augustus Holly, deceased. The plaintiff says, it was at the death of Augustus Holly, a part of the Willow Branch land, conveyed to him in the will under the devise to him of the \u201cWillow Branch farm.\u201d The plaintiff must recover in ejectment, upon the strength of his own title; he must satisfy you, by a preponderance of evidence, that the locus in quo was a part of the \u201cWillow Branch\u201d place \u2014 you need not inquire whether it was a part of the \u201cGaskins,\u201d the \u201cHermitage,\u201d or \u201cAshland\u201d land. Are you satisfied by a preponderance of evidence that the land, at the death of Augustus Holly, was a part of \u201cWillow Branch\u201d land? If so, you must find the first issue \u201cyes,\u201d and in answer to the second, name such sum as in your judgment is proper.\u201d\nThe following issues were submitted to the jury, to-wit:\n1. Is the plaintiff\u2019 the owner in fee-simple of the land described in the complaint and in controversy in this action?\n2. What is the annual rental value of the land in controversy?\nTo the first issue the jury responded \u201cno,\u201d and there was no response to the second issue.\nThere'was no exception taken by the plaintiff to the ruling of the Court as to the competency of the testimony, nor was there any exception to the charge of the Court, when delivered. Two days after the verdict was rendered, counsel for the plaintiff asked to be allowed to except to the charge. But no specific objection to the charge of the Court was then made. No special instructions were asked on the trial, but after the trial and the rendition of the verdict, the counsel for plaintiff wished to except to the failure of the Court to stop the defendants\u2019 counsel when using remarks amounting to an abuse of privilege. The Court declined to entertain the exceptions, and rendered judgment upon the verdict in favor of the defendants, from which the plaintiff appealed.\nMr. R. B. Peebles, for the plaintiff.\nMr. W D. Pruden, for the defendants.\nChief Justice Smith took no part in the decision of this ease." }, "file_name": "0096-01", "first_page_order": 136, "last_page_order": 141 }