Gross v. United States, 265 F. 606

Gross v. United States

265 F. 606 | 7th Cir. | 1920

BAKER, Circuit Judge

(after stating the facts as above). [1] One of the duties of a trial court is to protect parties and witnesses from abuse not warranted by the facts in evidence. Counsel was asking the jury to credit Gross and discredit Dennis, because the latter was a bootlegger. But inasmuch as Dennis’s only bootlegging was shown by Gross to have been done as the servant of Gross, it was not improper for the court to call counsel’s attention to the fact that he could not fairly attack Dennis without including Gross in the same denunciation.

[2] If for the characterization “this lowly creature, that is not to be believed,” the name of the witness Dennis be substituted, we can only assume, in the absence of the evidence, that the judge gave the jury a fair and accurate summation of the evidence and of the contentions of the parties therefrom. In federal practice this has alwa3^s been recognized as commendable. Indeed, the judge may go beyond a “summing up,” and may “express his opinion upon the facts,” *609provided only that he clearly admonishes the jurors that the ultimate determination of the facts is their exclusive province. Lovejoy v. United States, 128 U. S. 171, 9 Sup. Ct. 57, 32 L. Ed. 389; Vicksburg & M. R. Co. v. Putnam, 118 u. S. 545, 7 Sup. Ct. 1, 30 L. Ed. 257. This admonition was given repeatedly in the present case.

If the expression “this lowly creature, that is not to be believed,” was the judge’s own portrayal of Dennis to the jury, it might be to Gross’s advantage rather than his detriment. If it was a quotation from Gross’s counsel’s picture of Dennis, as we might well infer from the context, then counsel is responsible for the appearance of that term in the case. In either view, the expression was withdrawn, and the jury admonished to pay no attention to it. Under the statute (volume 40, pt. 1, U. S. Stat. p. 1181 [Comp. St Ann. Supp. 1919, § 1246]) we are unable to say that the record affirmatively discloses prejudicial error.

The judgment is affirmed.