53 S.E. 519 | N.C. | 1906
We have not noted plaintiff's several exceptions to his Honor's ruling in regard to the admissibility of evidence, because the questions raised by them are presented upon the demurrer to the entire evidence and motion for judgment of nonsuit. The question pressed and argued in this Court upon the demurrer is whether the entire evidence, if true, was of that character required to engraft a trust upon the legal title to land. The plaintiff contends that proof of declarations of the holder of the title, made antecedent to or at the time of the delivery of the deed, is insufficient to establish a parol trust, unless evidenced by facts and circumstances de hors the deed; that in this record the only evidence of the alleged trust is the unsupported testimony of defendant Kerr that Bates promised to take the title and hold for his benefit, conveying to him when he paid the amount of the bid, with interest; that this testimony is denied by Bates; that, in this condition of the case, the question is not one of intensity, which it is conceded would be for the jury, but of character, which must be decided by the (17) court as matter of law. It must be conceded that expressions have been used by this Court which, but for later decisions, would seem to sustain the proposition of the plaintiff. In Cobb v. Edwards,
This Court has held in Lehew v. Hewitt,
Plaintiff excepts to the language of defendants' counsel in regard to the plaintiff's witness, Bates, and his Honor's course in that respect. Certainly, the language is not to be commended in a judicial investigation. It was not calculated to aid the jury or enlighten the court. Denunciation is not argument, either in the courthouse or elsewhere. There may be a wide divergence of opinion as to the proposition that "this is a sentimental age," and whether we use "mild expressions" instead of "plain, strong language." Certainly, the counsel could not have supposed that he was under the ban of sentimentalism in describing his estimate of the witness. It is exceedingly difficult, as this Court has often said, to draw the line between proper comment and abuse of the privilege conferred upon counsel. This privilege is conferred upon counsel as a sacred trust, to be used only in defense of truth and right. It does not pertain to his personal, but to his official relation as an officer of the court. Any use of it for other than the high purpose for which it is conferred is an abuse. As we have said in Horner'scase, adopting the language of a judge of this Court, "It is (20) difficult to lay down the line, further than to say that it must, ordinarily, be left to the discretion of the judge who tries the cause," etc. While we do not sustain the plaintiff's exception, because we are not persuaded that any substantial injustice was done, we do not concur in the suggestion made in defendant's brief, "that a witness does not come under the same rule that applies to plaintiff or defendant." If there be any difference, which is not conceded, a witness should be more carefully guarded by the court from assault of counsel. The parties come voluntarily, while a witness is brought in by the process of the court. Both are entitled, as are the court and jury, to have the testimony discussed. It is the office of counsel to comment upon, analyze, and discuss their testimony, and in a proper, respectful manner call attention to their demeanor, relation to the parties and the cause. In discharging this duty it is due the court, the jury, the witness, and to *46 counsel himself, but, above all, to the cause of truth and justice, whose minister he is, to speak temperately and with a due regard to the sacred trust reposed in and the responsibility imposed upon him. Upon an examination of the entire record, we find no reversible error of the law. In view of the pleadings and testimony, we direct that the cost should be equally divided.
Affirmed.
WALKER, J., did not sit on the hearing of this appeal.
Cited: Newkirk v. Stephens,
(21)