55 So. 433 | Ala. Ct. App. | 1911
Well-considered arguments by counsel are, in all cases, helpful alike to courts and juries. While counsel, in the argument of their causes, are allowed wide latitude, they are, nevertheless, expected to confine themselves to the evidence, and to inferences to be drawn from the evidence, and are bound
While, in most of the states, a counsel is permitted to argue to the jury that the failure of his opponent to examine a witness summoned by him and present at the trial is a circumstance for their consideration, in this state a contrary doctrine prevails. In the case of Crawford v. State, 112 Ala. 1, 21 South. 214, the Supreme Court, speaking through Brickell, C. J., says: “It was proper to restrain the counsel of the defendant from the proposed argument to the jury that the failure of the state to examine Roman as a witness was a circumstance for their consideration. The argument was not legitimate, whether applied to the state or to the defendant, and with equal propriety, if there had been propriety in it, it could have been applied as well to the one as to the other. Roman was in court, as accessible to the one party as to the other; and all that can be said is that neither party deemed it necessary to place him on the stand, adding his testimony to that which had been adduced.” In the case of Bates v. Morris, 101 Ala. 282, 13 South. 138, the Supreme Court say: “The question was considered in Scoville v. Baldwin, 27
The above is the unquestioned law of Alabama, and counsel for plaintiff violated this rule in that portion of his argument to the jury to which exceptions were taken by the defendant, and the court committed reversible error in permitting counsel for the plaintiff, against the objection of the defendant, to make such statements to the jury, and in refusing the motion of the defendant to exclude the statements from the jury. The witnesses referred to by the counsel for the plaintiff were present during the tidal, and could have been examined by him. The objectionable portions of his argument were made with a purpose to bring before the jury a matter which, under the above rule, is declared to be one which they cannot consider, and to create in their minds the opinion that the defendant had withheld from them facts unfavorable to him, when the counsel had no legal right so to do. The rule above quoted from the decisions of our Supreme Court will be a dead letter if counsel are permitted, in their arguments, to violate it at will. The court cannot do so in charging the jury. Counsel should not be permitted to do so in addressing the jury.
In civil cases, the plaintiff is only required to prove his case to the reasonable satisfaction of the jury, and charges 3, 4, and 5, asked by the defendant, were properly refused by the court, because they required a higher degree of proof at the hands of the plaintiff than was required by law.
For the error pointed out, this case is reversed, and the cause remanded.
Reversed and remanded.