38 Kan. 53 | Kan. | 1887
The opinion of the court was delivered by
This was an action of replevin, brought by J. C. McCoy against William Huckell, before a justice of the peace of Cawker township, Mitchell county, to recover three head of swine. The case was tried before the justice without a jury, and judgment was rendered in favor of the plaintiff, McCoy, for one of the hogs in controversy, and in favor of the defendant, Huckell, for the other two hogs. The defendant appealed to the district court, where the case was again tried before the court and a jury, and judgment was rendered in favor of the plaintiff, and against the defendant for $30 damages and the costs of suit. To reverse this judgment the defendant, as plaintiff in error, brings the case to this court.
Two principal grounds are urged for reversal: First, that the court below had no jurisdiction to hear and determine the case; second, misconduct on the part of the prevailing party. We shall consider these grounds for reversal in their order:
I. We think the court below had jurisdiction to hear and determine the case. The exact question, however, which the plaintiff in error, defendant below, desires to present to this court, can hardly be considered as in the case; for it was not raised at all in the justice’s court, nor fairly raised in the district court, nor raised in the supreme court, until it was presented to the court by the brief of the plaintiff in error. That question is this: When an action of replevin is commenced
II. The alleged misconduct of the prevailing party is the alleged misconduct of the counsel of the plaintiff below in making statements of alleged facts to the jury in his closing-argument, which alleged facts had no connection with the case,, were not supported by any evidence, and were highly prejudicial to the rights of the defendant. The statements were principally that the defendant had a very bad reputation, that he was continually in litigation, and that, he was a liar and a thief. Among the'statements are the following: ■
“I do not know what Mr. Ellis [the defendant’s counsel} meant by his statement in regard to a ‘good man,’ unless the public clamor has been so loud about the bad reputation of his client that you have heard it.”
“Afraid of a prosecution ! from whom ? A man who, when he knows more than anyone else — who of all men knows whether those hogs were stolen or not — dares not become a witness. ’ A thief seldom exposes his work to the noonday sun.”
“If he [meaning the defendant] had come on the stand, we would have shown you that he [meaning the defendant] would swear to a lie — that he is a liar as well as a thief.”
“Mr. Ellis says that the boy has never been on the stand béfore. He probably don’t know what everybody else knows,, what all the neighbors know, that Huckell is all the time in court — always having a lawsuit.” .
The defendant was not a witness in the case, and was not impeached. There was no evidence tending to show that he had a bad reputation; no evidence tending to show that he was “always” or had been at any time in litigation; no evidence tending to show that he was either a liar or a thief; no-evidence that he stole the particular hogs in controversy, or that he had ever stolen anything; and no evidence indeed that the hogs in controversy were ever stolen by anybody,, except evidence tending to show that they were at one time-in an inclosure on the plaintiff’s farm, and were afterward found in an inclosure on the defendant’s farm. It appears from the evidence that the plaintiff had about 127 hogs on
“ The court remarked that it had not paid attention, and*58 had not understood the words used, but the counsel should confine his remarks to the facts disclosed by the evidence, and that the jury should pay no attention to assertions of counsel unless they were supported by the evidence.”
When the other three paragraphs were objected to, and they were objected to severally, nothing was said by either the court or the plaintiff’s counsel. These objectionable matters were not withdrawn from the jury by either the court or the plaintiff’s counsel. No retraction, no apology, no expression of regret, was elicited or came from the plaintiff’s counsel, but he proceeded with his argument as though nothing had happened. After this argument of counsel, the jury retired to their room for deliberation, and on the first vote taken by them, seven were in favor of finding a verdict in favor of the defendant, and five only were in favor of finding a verdict in favor of the plaintiff. Then commenced a discussion among the members of the jury, and the principal question discussed by them was, whether the charges made by the plaintiff’s counsel against the defendant were true, or not; and the jury, from their final verdict, evidently believed they were true. We might also here state that at the commencement of the trial the plaintiff had thirteen witnesses sworn, and afterward examined only three of them, and this left the jury to infer that the other ten were sworn for the purpose of impeaching the defendant if he testified in the case, and therefore that the third charge made by the plaintiff’s counsel was true. Such language as was used in this case by the plaintiff’s counsel might not ordinarily require a new trial, but in a case like the present we think it must. In all probability the plaintiff never would have obtained or received a verdict in his favor from this jury if the aforesaid language had not been used. Two of the jurors so testified, and there was no evidence tending to show otherwise; but of 'course this testimony was incompetent. We might also state another fact that tended very strongly to give the objectionable language force and efficacy: It is admitted that the plaintiff’s counsel is a man of high character, of good standing as a lawyer, and well known.
We think the court below erred in refusing to grant the de
The judgment of the court below will be reversed, and the cause remanded for a new trial.