68 P. 400 | Or. | 1902
delivered the opinion.
Three questions are raised by the record upon which the defendant relies for reversal of the judgment. The first has relation to a motion for a nonsuit, made at the close of plaintiff’s evidence; the second to a motion to direct a verdict for defendant; and the third has reference to the argument of plaintiff’s counsel to the jury, wherein, it is asserted, he was permitted, over objection, to go outside of the evidence adduced, and to resort to personal invective and abuse prejudicial to defendant’s case. These matters will be considered in their order.
The plaintiff, under pressure of cross-examination, asserted and reasserted, with apparent consistency, that such were the real transactions concerning the loaning of the two sums of money, but there was much elicited having a strong tendency to discredit and impeach his statements. To illustrate, the records show that on the day he claims to have made the first loan to Miller," of $1,000, the plaintiff drew his cheek for the identical sum in favor of a third party, who executed a note for a like sum, payable to plaintiff six months after date, with interest at 10 per cent per annum. So, with the second alleged loan, it appears that, on the day it is alleged to have been made, the Home Builders executed a note to plaintiff for the sum of $400, and the Home Builders and Cook and Howland executed another payable to plaintiff for $600, and at the same time
This should suffice to dispose of the question, but it is insisted that the motion should be considered upon like principle as a motion to set aside a verdict or for a new trial, in which ease the trial court is permitted to consider the -weight of the evidence and pass upon its sufficiency in point of fact. The legal distinction between the two proceedings was pointed out in Serles v. Serles, 35 Or. 289 (57 Pac. 634). This court can only deal with the, evidence in a proper proceeding for a determination of its sufficiency in point of law. The trial court may determine its sufficiency in point of fact, error not being assignable as to the latter: State v. Foot You, 24 Or. 61 (32 Pac. 1031, 33 Pac. 537). Considering the question, therefore, of the legal sufficiency of the testimony as presented by the motion to instruct, not by that to set aside the verdict, we find several witnesses were produced, who flatly contradicted the plaintiff upon the direct and vital point in issue; but this was effective only to produce a conflict in the testimony, and the jury were at liberty to believe the plaintiff as against several, if his testimony produced conviction in their minds. Indeed, there is an express provision of the statute requiring the court to instruct the jury “that they are not bound to find in conformity with the declarations of any number of -witnesses, against a less number, or a presumption or other evidence satisfying their minds”: Hill’s Ann. Laws, § 845, subd. 2. The
“We tried a bunco man the other day in the criminal department of this court, but what that man did was a trifle compared with C. W. Miller, the man who bilked this old man out of his money. * * ‘ In the start who caused it to be done 1 ’
It is -the privilege of the counsel in argument to comment upon the evidence and facts proven, and to draw all legitimate inferences therefrom. In this the law accords to him a large degree of freedom, and the means thus accorded is justly regarded as most efficient in arriving at the truth. The latitude or range of argument, however, cannot be permitted to extend beyond the facts in evidence, and it is a just and ample cause for reversal where counsel, against objections, are notwithstanding allowed to state facts pertinent to the issues not in evidence, or to assume in argument that such facts are in the case. The jurors are triers of fact upon the evidence adduced, which is scrutinized in its admission by the court, and they must exclude extraneous matters from consideration in arriving at their verdict; hence it is inconsistent and incompatible with the dictates of common justice for counsel to attempt to influence them by statements of facts outside the range of evidence, or to assume a fact as though proven when no such inference can be reasonably drawn from the evidence. True, jurors are sworn to try the cause according to the law and evidence, and all proper intentions must be accorded them while in the discharge of their functions; but it is not beyond human probability that they might be unconsciously influenced by adroit statements of facts not pertinent to be submitted to them, interweaving them with legitimate testimony; so it has become a salutary rule of law that if counsel is permitted to pursue such a course, when timely objection has' been made, it will constitute cause for reversal. Uncalled for personal abuse by counsel of parties or their witnesses calculated to inflame the passions of the jury, and materially prejudice the case adversely to the party complaining, if repeated and persisted in after being directed to desist, will also afford grounds for a reversal. But when arguing within the limits of admitted or controverted facts the counsel should enjoy the greatest
Now, there is evidence in the case upon which an inference may be fairly predicated that the plaintiff: was induced to part with his money by indirection; that Miller & Miller were allied in some manner, not fully disclosed, with the makers of the alleged notes; and that all were engaged in a common purpose to obtain money on the credit of irresponsible parties. This condition gave rise to the especial characterization by counsel and a comparison of the .transactions with a bunco scheme. However severe the arraignment of the parties concerned, the argument was within the range of the facts in evidence, and there was no manifest attempt on the part of counsel to purposely drag into the case extraneous facts or matters not legiti