101 Neb. 339 | Neb. | 1917
This is a bastardy case. There was a verdict in favor of the defendant, and plaintiff has appealed.
The plaintiff was the servant girl working for the defendant at his home. She began to work for him on or about September 22, 1913. She appears to have worked continuously until about Christmas, except one week in the latter part of October or the early part of November. On July 14, 1914, she gave birth to a child. At the time of the trial it was still alive. The claim is ma$e 1 hat the plaintiff got in the family way on Friday night, about the middle of October, 1913. At" that time the defendant’s wife was away. She came back the next day. In November the defendant’s wife appears to have been absent at Sioux City for the period of two weeks. It is claimed by the plaintiff that due defendant had intercourse with her during that time.
We do not care to discuss the details of the evidence. The view that we take of the matter is that there will have to be a new trial because of misconduct of counsel during the trial. Immediately after the plaintiff’s father learner! of his daughter’s condition, the defendant went to the home of the plaintiff’s father and there had a conversation with the plaintiff’s father and mother. In this conversation he appears to have said, according to the evidence, that he was awfully sorry, and wanted to know if he could do anything for the plaintiff’s father. He talked to the girl, and according to the testimony said: “Don’t cry, Charlotte.” The girl made accusations against the defendant in the presence of her father and mother, and recited something of what she claimed the defendant had told her about laying the blame on some boy. The defendant claimed that he was not the father of the child. There was an effort to lay the blame on the plaintiff’s cousin, a boy 15 years old. There was also an effort to show that
In that case the bill of exceptions contained the following recitals“Mr. Harsh, in making the closing argument for the plaintiff in the case, said to the jury: ‘I know Hugh Morrow, and I know what I am going to tell you about him is true. I know that if he was on the jury trying this case that he would render a verdict in favor of the plaintiff in a large amount.’ The defendant, by its attorney, * * * objected to the foregoing argument of plaintiff’s counsel, and the court sustained the objection. At the timé of making the objection, defendant’s attorney stated to the court, in the presence of the jury, that the facts stated by Mr. Harsh were not in evidence, and were not true in substance and in fact.”
The supreme court said: “This was clearly and wholly illegitimate argument. It was matter stated as a fact to the jury, of which there was no evidence, and of which fact evidence would not have been admissible, if offered. Its only tendency and effect was to prejudice the jury against the defense of the defendant, and against the sincerity of its counsel in so defending. Its natural tendency was to persuade the jury to render a verdict for plaintiff, because it was practically confessed by the attorney for defendant. It would be difficult to conceive of argument more objectionable, unfair, and prejudicial than was this, coming, as it did, in the closing argument, to which the defendant’s counsel has no opportunity to reply. Courts should not allow verdicts obtained by such argument to stand. * * * This court on appeal, can only review the actions and rulings of the trial courts, and not those of
The court held that it was error to refuse to grant the motion for a new trial. Subsequently the rehearing was denied February 17, 1912. This, therefore, is a recent case.
In Wolffe v. Minnis, 74 Ala. 386, the court said: “It is one of the highest judicial functions to see the law impartially administered, and to prevent, as far as possible all improper, extraneous influences from finding their way into the jury box.” ’ In that case, when the objection was made, counsel said; “Oh,. well, I’ll take it back;” but the reviewing court said, “Such remark Cannot efface the impression. The court should have instructed'the jury, in clear terms, that such remarks were not legitimate argument, and that they should not consider anything, thus said, in their deliberations.”
In Chicago, B. & Q. R. Co. v. Kellogg, 55 Neb. 748, this court said, on the rehearing, as stated in the syllabus:
In Hughes v. City of Detroit, 161 Mich. 283, the court said that the argument was inflammatory and prejudicial, and that it was cause for a reversal. In that case no allusion was made in the charge of the trial court to the improper argument of counsel. ” There had been an exception at the time the objectionable language was used. In that case counsel said: “Would you take all the money in the city of Detroit and have your sister go through with what this young woman has gone through with? * * * You have anybody crippled in the family, or where their usefulness is gone, and see how they stand the care, and wear away whatever affection there may be. * ■ * * As my associate said, you would not take that injury for all the money that could be piled up in front of us.” It was held that the language used was. “inflammatory and prejudicial.” The court said: “It was cause for reversal” — citing many Michigan cases.
In Sullivan v. Chicago, R. I. & P. R. Co., 119 Ia. 464, it was held that, where it reasonably appears that the verdict may have been influenced by improper remarks made by an attorney, a new trial should be granted. In Bjoraker v. Chicago, M. & St. P. R. Co., 103 Minn. 400, it was held that, where the language used by the attorney in his address to the jury is not a fair comment on the evidence or anything remotely deducible from the' evidence, an order of the trial court denying a motion for a rehearing will be reversed and a new trial granted.
In State v. Duncan, 86 S. Car. 370, Ann. Cas. 1912A, p. 1016, it was said: “Within the four corners of the evidence, great latitude in argument is allowed. But it is the duty of the court, of its own motion, to check any departure from the record. And when abuse of the privilege of argument is allowed, against objection, to such an extent that it appears probable that the verdict was. thereby affected, a new trial will be granted. The law guarantees every litigant a fair and impartial trial, and this has not been secured, where the verdict has been influenced by considerations outside of the evidence.”
The misconduct of which complaint is made was clearly prejudicial, and prevented plaintiff from, having a fair ' trial. For this-reason, the judgment is reversed and the cause remanded for further proceedings.
Reversed.