25-1111. Instructions by court; requested instructions; requirements.

It shall be the duty of the judges of the several district courts, in all cases, both civil and criminal, to reduce their charges or instructions to the jury to writing, before giving the same to the jury, unless the so giving of the same is waived by the counsel in the case in open court, and so entered in the record of said case; and either party may request instructions to the jury on points of law, which shall be given or refused by the court. All instructions asked shall be in writing.

Source

Annotations

1. Duty to give

2. Failure to instruct

3. Oral instructions

4. Waiver

5. Directed verdict

6. Written instructions

7. Miscellaneous

1. Duty to give

In criminal prosecution where evidence connecting defendant with offense is circumstantial, court should, upon request, give a proper instruction to guide jury in determining the sufficiency of circumstantial evidence to warrant conviction. Vinciquerra v. State, 127 Neb. 541, 256 N.W. 78 (1934).

It is error to refuse requested instruction warranted by evidence and correctly stating law, unless principles involved covered by other instructions. Hyndshaw v. Mills, 108 Neb. 250, 187 N.W. 780 (1922).

2. Failure to instruct

It is not error to fail to instruct on contributory negligence, where no such instruction requested, nor evidence offered. Wilson v. Morris & Co., 108 Neb. 255, 187 N.W. 805 (1922).

3. Oral instructions

Where the record clearly shows an oral request for a jury instruction, and there is a full understanding of the requested instruction by the court, review of the court's ruling on the instruction will not be precluded by a failure to reduce the request to writing. State v. Hegwood, 202 Neb. 379, 275 N.W.2d 605 (1979).

Oral explanation on effect of unavoidable accident was erroneous. Owen, Admr. v. Moore, 166 Neb. 226, 88 N.W.2d 759 (1958).

Oral instruction as to manner of preparing a verdict and effect thereof was reversible error. Anderson v. Evans, 164 Neb. 599, 83 N.W.2d 59 (1957).

Giving oral instructions on law applicable is reversible error, where written instructions are not waived. Dow v. Legg, 120 Neb. 271, 231 N.W. 747 (1930), 74 A.L.R. 5 (1930).

It is error to give or modify instructions orally, if exception is taken. Hartwig v. Gordon, 37 Neb. 657, 56 N.W. 324 (1893).

In order to obtain relief concerning oral instructions, the appellant must demonstrate that it was prejudiced by the trial court's actions. State v. McDaniel, 17 Neb. App. 725, 771 N.W.2d 173 (2009).

4. Waiver

Waiver in civil case by stipulation filed. Kuhn v. Nelson, 61 Neb. 224, 85 N.W. 56 (1901); Burns v. City of Fairmont, 28 Neb. 866, 45 N.W. 175 (1890).

Entry of waiver should be made upon record. Fitzgerald v. Fitzgerald, 16 Neb. 413, 20 N.W. 269 (1884).

5. Directed verdict

Mandatory instruction to return a verdict in favor of one of the parties need not be in writing. Alloway v. Aiken, 146 Neb. 714, 21 N.W.2d 495 (1946).

It is error to refuse defendant's request for directed verdict, where evidence is insufficient to support verdict for plaintiff. Hoxie v. Chicago & N.W. Ry. Co., 102 Neb. 442, 167 N.W. 557 (1918); Halsted v. Shackelton, 98 Neb. 13, 151 N.W. 954 (1915); Shlik v. Armour & Co., 97 Neb. 101, 149 N.W. 308 (1914); Schmidt v. Williamsburgh City Fire Ins. Co., 95 Neb. 43, 144 N.W. 1044 (1914).

Court is not required to make special findings when directing verdict. First Nat. Bank of Sutton v. Schiermeyer, 99 Neb. 704, 157 N.W. 617 (1916).

Where both parties request directed verdict, court may pronounce judgment without submission to jury. Fairbanks, Morse & Co. v. Austin, 96 Neb. 137, 147 N.W. 126 (1914); Schmidt v. Williamsburgh City Fire Ins. Co., 95 Neb. 43, 144 N.W. 1044 (1914).

Direction to return verdict for party may be oral. Salisbury v. Press Pub. Co., 76 Neb. 849, 108 N.W. 136 (1906).

6. Written instructions

Although this section directs that a requested instruction be in writing, when the record demonstrates that a trial court understood the nature of the orally requested jury instruction, an appellate court may review the trial court's refusal to give the orally requested instruction. State v. Grant, 242 Neb. 364, 495 N.W.2d 253 (1993).

Requested instructions must be submitted in writing. State v. Maxwell, 193 Neb. 807, 229 N.W.2d 195 (1975).

An instruction to the jury must be in writing unless the requirement is waived in open court. Omey v. Stauffer, 174 Neb. 247, 117 N.W.2d 481 (1962).

Statements of court on voir dire examination of jury are not instructions required to be in writing. Lee v. State, 147 Neb. 333, 23 N.W.2d 316 (1946).

7. Miscellaneous

Advising jury as to limited purpose for which testimony was introduced was not violation of this section. Grandsinger v. State, 161 Neb. 419, 73 N.W.2d 632 (1955).

Explanatory statements on voir dire examination were not instructions. Rakes v. State, 158 Neb. 55, 62 N.W.2d 273 (1954).

Issues and facts should not be involved, confused or incumbered by recital of unnecessary pleadings or surplusage, in instructions. Lang v. Omaha & C. B. Str. Railway Co., 96 Neb. 740, 148 N.W. 964 (1914).