On petition eor a rehearing.
Perkins, J.The judgment of the court below, in this cause, was reversed, because that court allowed counsel, on its trial, to read from Davis’ Digest the statements therein contained of the amounts found as damages by the juries, severally,.in the cases mentioned therein, and that the court rendered judgments, severally, for said amounts.
It is claimed that this court mistook the law upon this point, and that a rehearing should be granted.
It is also claimed that there was no evidence before the Supreme Court, that the fact, made the ground of the reversal of the judgment, actually existed. It is said that there is no bill of exceptions in the record; that the bill copied into the transcript, though duly signed, does not show that it was ever filed.
Properly, this point' should be first decided.
As matter of fact, a bill of exceptions was copied by the clerk into the transcript, and the transcri-pt was duly certified by the clerk of the Cass Circuit Court, who made the copy thereof. Said transcript was submitted to the Supreme Court, without objection from either party, as the transcript upon which the cause was to be decided, and upon which, without objection, it was decided.
The objection that the bill was not properly in the transcript was thus waived. Further, it was decided by this court, in Oliver v. Pate, 43 Ind. 132, that, “Where sixty days were given within which to file a bill of exceptions,, and the bill was signed by the judge within that time, and, though it was copied into the record, it did not ap*347pear by any statement in the body of the record that it was ever filed, but the certificate of the clerk of the. court below, given within the sixty days, stated that the-record was a full, true, and complete transcript of all the proceedings had in the ease, as the same appeared of record, and of papers on file in his office,” it sufficiently appeared that the bill was filed in time.
We proceed to the remaining question made in the petition for a rehearing, viz.: Whether this court was wrong* in deciding that the court below erred in permitting counsel for the plaintiff', over the objection of the defendant* to read in argument to the jury, from Davis’ Digest, the. amounts of verdicts in other slander suits.
The statements in Davis’ Digest are simply the statements of the compiler of that digest. There was no-proof that those statements were correct. Reading them from the Digest simply amounted to a statement to the-jury by the counsel, that the compiler of the Digest informed him that verdicts, in such and such amounts, had been rendered in such and such slander suits.
The court below erred in permitting counsel to make, these statements in his argument to the jury. Tucker v. Henniker, 41 N. H. 317, is in point. It is there said:- “ When counsel are permitted to state facts in argument* and to comment upon them, the usage of courts regulating trial is departed from, the laws of evidence are violated, and the full benefit of trial by jury is denied. It. maybe said, in answer to these views, that the statements of counsel are not evidence; that the court is bound so to instruct the jury, and that they are sworn to render their verdict only according to evidence. All this is true; yet the necessary effect is to bring the statements of counsel to bear upon the verdict with more or less force, according to circumstances; and if they in the slightest; degree influence the finding, the law is violated, and the-purity and impartiality of the trial tarnished and weakened. If not evidence, then manifestly the jury have *348nothing to do with them, and the advocate has no right to make them. It is unreasonable to believe the jury will entirely disregard them. They may struggle to disregard them; they may think they have done so, and still be led involuntarily to shape their verdict under their influence. That influence will be greater or less, according to the •character of the counsel, his skill and adroitness in argument, and the force and naturalness with which he is able to connect the facts he states with the evidence and circumstances of the case. To an extent not definable, yet to a dangerous extent, they unavoidably operate as evidence which must more or less influence the minds of the jury, not given under oath, without cross-examination, and irrespective of all those precautionary rules by which ■competency and pertinency are tested. * * *
“"With these views, the verdict rendered for the plaintiff must be set aside, and a new trial be granted,” which was done.
This case is supported by Berry v. The State, 10 Ga. 511; Mitchum v. The State, 11 Ga. 615 ; Bulloch v. Smith, 15 Ga. 395; Dickerson v. Burke, 25 Ga. 225; Wightman v. The City of Providence, 1 Clifford, 524; Rolfe v. Rumford, 66 Me. 564.
Nor, had the counsel read from the volumes of reports of the State the amounts of said verdicts and judgments, would the case have been different, because they are not law.
It is a general rule of law, that the jury are the judges of the facts, and the court of the law; that the jui’y receive the facts from the witnesses, and the law from the court. But in some States it is the practice, even in civil cases, to allow counsel to read to the jury, on the trial, the law from books, in their argument to the jury. This practice can not be defended on principle.
In The People v. Anderson, 44 Cal. 65, it'is said, that “the practice of allowing counsel * * to read law to the jury, is objectionable, and ought not to be tolerated. *349Its usual effect is to confuse rather than to enlighten the jury.”
But the verdicts of juries are not law, except in a sense, for the parties in the particular cases in which they are rendered. See Maple v. Beach, 43 Ind. 51.
To illustrate: Take verdicts in cases of slander. On the trial of such a ease, after the plaintiff had gone through with his evidence touching the speaking of the words, and the circumstances under which they were spoken,, suppose he should offer, on the question of damages, to prove, as a guide to the jury in the case on trial, the amount that a jury in a slander case had given in some other county, or in the county of the trial, a year or two before, would he be allowed to make such proof? Did any one ever hear of a judge instructing a jury as to the amount of damages in such a ease“ Gentlemen of the jury, as to the amount of damages which you should give in your verdict, I find in a reported slander case, that the jury returned a verdict for five thousand dollars, on which judgment was rendered by the nisi prius court, and the Supreme Court affirmed that judgment. This established the law as to the amount of damages in this class of cases, and your verdict should be for that sumí?”
Such an instruction would contravene the whole theory of trial by jury, which is, that the jury, in each case, find a verdict upon their own judgment, on the facts of the particular case. Eo two cases are precisely alike in their facts. All the matters that influence a jury in finding their verdict in a given case can not be presented on paper to another jury; hence the verdict of the former would tend to mislead the latter. The facts of all cases differ, and the verdicts in them differ.
The theory is, that the parties in each suit have the right to a true verdict, according to the law and the evidence in the particular case, of the jury in that case — of the jury of the vicinage — uninfluenced by the action of other juries in other cases. The question for the jury *350in each case is concrete, not abstract. The court may be bound by the judgments of other courts of last resort, •upon the law, but each jury is an independent body, whose duty it is to render a verdict upon the facts in the particular case, uninfluenced by the action of any other jury in any other case.
Original opinion filed at November term, 1877. Opinion on petition filed at May term, 1878.In all cases, counsel may discuss, upon the facts of the particular case, the amount of damages proper to be awarded. And, as punitive damages can be given only in cases where punishment in á criminal prosecution can not be inflicted, the question as to whether the particular case is one of that class may be discussed, and it will be the duty of the court to instruct upon this point; but the amount, if any, to be awarded as compensatory or punitive damages, or both aggregated, must be determined by the jury, on their own judgment, in the particular case.
In criminal cases, we may remark, in this State, the jury are made, by the constitution, the judges of the law and the facts, and the law may be read to them on the trial.
The petition for a rehearing is overruled.