The Volokh Conspiracy

A funny passage from Morse v. State, 72 S.E. 534 (Ga. App. 1911) (Powell, J.):

The first assignment of error is that the court erred in charging the jury as follows: “Evidence may be autoptic proference.” Error is assigned as to this charge on two grounds: (1) That the statement is abstractly incorrect; and (2) that it is misleading. Considering these points in reverse order, we may say (to borrow a Hibernicism from the private vocabulary of an ex-justice of the Supreme Court of this state) that the language excepted to is neither leading nor misleading.

As to the other objection -- that the language is abstractly incorrect -- if incorrectness from a legal standpoint is intended, the objection may be disposed of by citing Wigmore on Evidence, § 1150 et seq. If philological incorrectness is referred to, the objection is more tenable; for, while “autoptic” is a good word, with pride of ancestry, though perhaps without hope of posterity, the word “proference” is a glossological illegitimate, a neological love-child, of which a great law writer confesses himself to be the father (see Wigmore on Evidence, § 1150, note 1). Despite all this, we cannot brand the statement as reversible error. This court is rather liberal in allowing the judges on the trial benches the privilege of big words....

Now, lest our manner of treating this exception be regarded as a reflection upon the very able judge of the superior court whose language is under review, let us hasten to explain that the language is all right -- that to quote the excerpt alone does him injustice. During the progress of the trial, certain bottles and their contents had been introduced in evidence and were given the jury for their consideration, and the necessity was upon the judge of explaining to the jurors what use they could make of this class of testimony. As to such evidence the older writers used the phrase “real evidence”; but Professor Wigmore in his wonderful treatise, has pointed out that this is not an accurate expression, and has coined a new phrase, “autoptic proference,” to express it. Following Wigmore, Judge Felton used this expression, and then most clearly explained and illustrated to the jury, in plain, simple, homely language, just what the big words mean.

I particularly like the phrase "a good word, with pride of ancestry, though perhaps without hope of posterity."

	[Eugene Volokh, July 29, 2008 at 6:35pm] Trackbacks Words: A funny passage from Morse v. State, 72 S.E. 534 (Ga. App. 1911) (Powell, J.): The first assignment of error is that the court erred in charging the jury as follows: “Evidence may be autoptic proference.” Error is assigned as to this charge on two grounds: (1) That the statement is abstractly incorrect; and (2) that it is misleading. Considering these points in reverse order, we may say (to borrow a Hibernicism from the private vocabulary of an ex-justice of the Supreme Court of this state) that the language excepted to is neither leading nor misleading. As to the other objection -- that the language is abstractly incorrect -- if incorrectness from a legal standpoint is intended, the objection may be disposed of by citing Wigmore on Evidence, § 1150 et seq. If philological incorrectness is referred to, the objection is more tenable; for, while “autoptic” is a good word, with pride of ancestry, though perhaps without hope of posterity, the word “proference” is a glossological illegitimate, a neological love-child, of which a great law writer confesses himself to be the father (see Wigmore on Evidence, § 1150, note 1). Despite all this, we cannot brand the statement as reversible error. This court is rather liberal in allowing the judges on the trial benches the privilege of big words.... Now, lest our manner of treating this exception be regarded as a reflection upon the very able judge of the superior court whose language is under review, let us hasten to explain that the language is all right -- that to quote the excerpt alone does him injustice. During the progress of the trial, certain bottles and their contents had been introduced in evidence and were given the jury for their consideration, and the necessity was upon the judge of explaining to the jurors what use they could make of this class of testimony. As to such evidence the older writers used the phrase “real evidence”; but Professor Wigmore in his wonderful treatise, has pointed out that this is not an accurate expression, and has coined a new phrase, “autoptic proference,” to express it. Following Wigmore, Judge Felton used this expression, and then most clearly explained and illustrated to the jury, in plain, simple, homely language, just what the big words mean. I particularly like the phrase "a good word, with pride of ancestry, though perhaps without hope of posterity."