59 N.H. 462 | N.H. | 1879
As a general rule, it is desirable, in determining who shall have the opening and close, to follow the rules of pleading, and give that right to the party upon whom, by those rules, the burden of proof is placed; but this rule is not without its exceptions, and a verdict is not ordinarily set aside for a ruling of the court giving the right to open and close to either party, and is not in any case unless it appears that injustice has been done. There being an absence of any evidence that injustice was done by the ruling on this point, this exception is not sustained. Boardman v. Woodman,
It does not appear that Henry Hilliard's testimony was material, nor that it was prejudicial to the defendant's case. State v. Clark,
The number of witnesses called as experts may be limited by a special order, which should not be so modified as to give either party an unfair advantage.
The admissibility of the plaintiff's testimony on a former trial, stands on the same ground as his statements on a former occasion. They are both admissible to contradict him, but in such cases it is *465 his right to have the whole statement relating to the same subject matter, so that the connection may be seen and understood, and thus the jury be able to give the proper effect to the contradiction.
The testimony of Childs was upon a collateral question, and it was for the court to determine whether any evidence should be received on that question, and to what extent the inquiry should be carried.
The exceptions to the remarks of the plaintiff's counsel in the opening statement are sustained. The objectionable remarks in the opening were upon a point not in issue, upon which evidence was not admissible, and about which comments were improper, and they were of a character to prejudice the jury against the defendant. So with the remarks in the closing argument to which exception was taken. They were not warranted by the evidence, and were upon a point which was not in any aspect of the case material. Why the venue was changed, and whether for sufficient reasons or not, was not in issue, and the subject was wrongfully presented for the consideration of the jury. The defendant was entitled to a fair and impartial trial, and to the verdict of the jury upon evidence relevant and competent to prove the issues presented. It was the right of counsel in the closing argument to comment upon the evidence received on the trial, to criticise the character, conduct, appearance, motives, and testimony of the witnesses, so far as they had appeared and were relevant to the issue, and this field was broad enough. It is held to be the duty of the court to check any departure from the evidence, and to stop counsel when they introduce irrevelant matters or facts not supported by the evidence; and if objection is made it is error to permit it, and a new trial will be granted. Proffatt Jury Trial, s. 250.
The remarks objected to were calculated to withdraw the attention of the jury from the true issue, to excite in their minds a prejudice against the defendant which was not based on the evidence, and, if they had the slightest weight in the mind of a single juror, the defendant did not have that fair and impartial trial which was his right, and which it is the duty of courts to give. The verdict was not a true verdict, according to the law and the evidence given to the jury. Tucker v. Henniker,
It is neither the duty nor the right of counsel to appeal to prejudices, just or unjust, against his adversary, outside the case he has to try. The fullest freedom of speech within the limits of the evidence should be accorded to counsel; but it is license, not freedom of speech, to travel outside the record, basing his argument on statements not supported by evidence, and appealing to prejudices which find no warrant in the case. Brown v. Swineford,
In some cases there may be a just presumption of fact that the jury are not influenced by evidence or arguments which they are instructed to disregard. Burnham v. Butler,
Verdict set aide.
BINGHAM and SMITH, JJ., did not sit: the others concurred. *467