Expert evidence. In respect of questions upon which men of ordinary observation and experience have some practical knowledge of their own, jurors are not dependent upon the opinions of experts even though they would he assisted by them, since they are expected to apply their own observation and experience of the affairs of life to the evi dence in forming their conclusions; Lilli bridge v. McCann, 117 Mich. 84, 75 N. W. 288, 41 L. R. A. 381, 72 Am. St. Rep. 553; McGarrahan v. R. Co., 171 Mass. 211, 50 N. E. 610 ; State v. R. Co., 86 Me. 309, 29 Atl. 1086 ; Jamieson v. Oil Co., 128 Ind. 555, 28 N. E. 76, 12 L. R. A. 652; Chicago, M. & St. P. R.‘Co. v. Moore, 166 Fed. 663, 92 C. C. A. 357, 23 L. R. A. (N. S.) 962, where many other cases are collected.
See EXPERTS.
Jurors taking notes. Jurors may not take notes of the testimony of witnesses to re fresh their memories in consultation with their fellow jurors ; Corn. v. Wilson, 19 Pa. Dist. Ct. 48, where Wiltbank, J., an experi enced trial judge, directed notes so taken to be surrendered and sealed and returned to the jurymen after the trial. The reason for this rule is said to be that "the jury should not be allowed to take evidence with them to their room except in their memory. It can make no difference whether the notes are written by a juror or by some one else. Jurors would be too apt to rely on what might be imperfectly written and thus make the case turn on a part only of the facts;" Cheek v. State, 35 Ind. 492 ; Batterson v. State, 63 Ind. 531; Long v. State, 95 Ind. 481. Where a justice of the peace, at the request of the jury after they had retired, gave them without the consent of the par ties his minutes of the trial, the judgment was reversed on certiorari, this action was affirmed by the supreme court ; Neil v. Abel, 24 Wend. (N. Y.) 185.
Where a juror on a trial for murder for three weeks openly took notes of the testi mony, it was held that it did not as a matter of law require the setting aside of the ver dict ; Com. v. Tucker, 189 Mass. 457, 76 N. E. 127, 7 L. R. A. (N. S.) 1056; and in civil Cases some courts permit counsel to request the jury to take notes of a particular fact or calculation, though they cannot be re quired to comply ; Tift v. Towns, 63 Ga. 237; Indianapolis & St. L. R. Co. v. Miller, 71 Ill. 463; but generally note-taking by jurors is considered an improper practice, though it is allowed by statute in some states ; U. S. v. Davis, 103 Fed. 457 ; Cowles v. Hayes, 71 N. C. 230 ; Thomas v. State, 90 Ga. 437, 16 S. E. 94.
Even In a murder trial the verdict will not be set aside if it does not appear that neither the defendant nor his counsel had knowledge of it, as consent is in that case presumed from failure to object ; State v. Robinson, 117 Mo. 649, 23 S. W.
1066.
Taking a view. Where a jury is called upon to assess the value of land, the impres sions acquired by the jury after a view are competent evidence; Chicago, R. I. & P. Ry. Co. v. Farwell, 59 Neb. 544, 81 N. W.. 440 ; Parks v. City of Boston, 15 Pick. (Mass.) 198 ; City of Springfield v. Dalby, 139 Ill. 04, 29 N. E. 860 ; Tully v. R. Co., 134 Mass. 499 ; though it has been held that the view is only effectual for the application of evi dence given in court ; Machader v. Williams, 54 Ohio St. 344, 43 N. E. 324 ; and it is stat ed that this restriction is imposed where the view is for any other purpose than the mere valuation of the land ; Wright v. Carpenter, 49 Cal. 607; but this limitation upon the general rule has been considered to be with out foundation ; 13 Harv. L. R. 692.
In some cases, where a jury is authorized in a trial before a justice of the peace, it has been held to be no more than a body of referees and not a true jury trial, and therefore the case could be tried by another jury in the superior court ; Capital Traction Co. v. Hof, 174 U. S. 1, 19 Sup. Ct. 580, 43 L. Ed. 873.
The province of the jury is to determine the truth of the facts in dispute in civil cas es, and the guilt or innocence of the person accused in criminal cases. Thorn. Jur. § 133. See CHARGE. If they go beyond their prov ince, their verdict may be set aside ; 4 Maule & S. 192 ; 3 B. & C. 357 ; 2 Price 282: Ex parte Baily, 2 Cow. (N. Y.) 479 ; Hall v. Huse. 10 Mass. 39.
The question whether the jury are judges of the law as well as of the fact, or whether it is the function of the court conclusively to instruct the jury upon the law, particularly in criminal cases, has been very much dis cussed from the earliest times and was the subject of critical examination by the United States supreme court; Sparf v. U. S., 156 U. S. 51, 15 Sup. Ct. 273, 39 L. Ed. 343. See in fra.
Coke says: "As the jury may, as often as they think fit, find a general verdict, I there fore think it unquestionable that they so far may decide upon the law as well as fact, such a verdict naturally involving both. In this I have the authority of Littleton himself, who hereafter writes, 'that if the inquest will take upon themselves the knowledge of the law upon the matter, they may give their ver dict generally.' " He further says in substance: "Questions of law generally and more properly belong to the judges. The immediate and direct right of declaring upon questions of law is entrusted to the judges ; that in the jury is only incidental." Co. Litt. 156 a, n. (5).