590
The Green Bag
"The objection to the verdict on the ground of inconsistency and repugnancy we do not think is well taken. None of the alleged in consistencies are substantial, nor of such a character as the law will recognize. A verdict will not be set aside as inconsistent because it finds differently as to counts in which there is no material difference. So long as there is no inconsistency in the verdict as to the sub stance of the matter charged in the various counts, the verdict will not be disturbed. If the gravamen of the charge in each count, on which there has been a verdict of guilty, is the same, there is no inconsistency in the verdict. If in contemplation of law, the legal effect of the allegations in the various counts on which there has been a verdict of guilty is the same, the courts will not upset the verdict on the ground of inconsistency, where the only inconsistency is in respect to imma terial particulars concerning the means by which the crime was committed. Griffin v. State, 18 Ohio State 438; Reg. v. O' Brian, 1 Brit. Crown cases, 9; Hudson v. State, 1 Black Ind. Rep. 317; Hathcock v. State, 88 Ga. 91; Tablet v. State, 34 Ohio State 127; People v. Sullivan, 173 N. Y. 122; Lyons v. People, 68 Ill. 271; Longford v. People, 134 Ill. 444." Appeals. Errors of Law in Charge to Jury Immaterial, when the Verdict is Found Strictly on the Evidence. O. In an action recently brought against the city of Cincinnati, the jury found for the plaintiff strictly upon the evidence, though it allowed a less amount of damages than was claimed and the facts may have warranted. The solicitor for the city appealed from the verdict of the jury because of a technical error of trial. The Circuit Court of Hamilton county, O., in denying the writ of error laid down as a principle of law the proposition: When uncon tradicted evidence shows liability for what ever damage resulted, and also that the plaintiff suffered greater damages than were allowed him, errors of law in the charge to the jury, or in the admission or rejection of evidence at the trial, become immaterial. The Ohio Bar Association has said that this decision should be preserved in bronze, for the reason that "it anticipates by a halfcentury the evolution of judicial procedure, which will bring with it that ideal administra tion of the law where justice shall be done, even if errors have to be ignored."
Appeals. No Reversible Error in Admission of Incompetent Evidence Which Could not Have Influenced Verdict. Okla. One convicted of murder appealed. It was apparent that the wounds of the victim had not been self-inflicted, and further to estab lish this fact testimony of physicians was introduced. For the error in the admission of this evidence a new trial was sought on the ground that the prosecution, having offered this evidence as a part of its case, was estopped from denying its injurious effect. In Byers v. Territory, 103 Pac. Rep. 532, the Oklahoma Court of Criminal Appeals refused to be bound by or to follow the line of authorities, which it condemned as technicality run mad, repug nant to reason, demoralizing to respect for law, and destructive of justice. "If the evi dence, the admission of which was error, could reasonably have had any effect on the jury, this decision might have been different, but it is the fixed policy of this court to refuse to reverse convictions upon mere technicalities or exceptions which do not deprive the defend ant of a substantial right." See also Defamation. Corporations. See Interstate Commerce. Defamation. No Reversal on Writ of Error for Mistakes not Prejudicial—Evidence of Mental Suffering Admissible, Even if Arising from a Subsequent Publication. U. S. The United States Circuit Court of Appeals, second circuit, refused to reverse the judg ment of the court below for error, in the libel suit of 5. 5. McClure Co. v. Philipp, where the plaintiff in the court below had secured a verdict for $15,000 damages in an action for an article which had appeared in McClure's Magazine, in the Circuit Court for the southern district of New York. "It is impossible that an action like the present," said the Court (Coxe, J.), "which was fiercely contested for five or six days, can be tried without some ruling being made which would not have been made if the court had been aware at the time of its full significance. But unless these mistakes are prejudicial a just result should not be disturbed." On the subject of the admissibility of evi dence of mental suffering in an action of libel, the Court said:— "The first assignment of error which, in our judgment, requires serious consideration chal lenges the action of the trial court in permit ting the plaintiff to describe his feelings after
