| Ark. | Apr 22, 1907
(after stating the facts.) There were thirty-six assignments of error in the motion for new trial. But the' majority of the court decline to consider any of these except the following:
“29. Error in permitting J. S. Lake in his closing argument to allude to the fact that Mr. Rodgers had not testified and to comment on this omission as a circumstance to be considered as against the contestees.”
The record shows that, over the objection of the contestees, Mr. J. S. Lake, in his closing argument for the contestants, was permitted to allude to the fact that Mr. Rodgers had not testified, and to comment on this amission as a circumstance to be considered against the contestees. Exception to the court's ruling was saved.
We have set forth fully in the statement of facts the evidence bearing upon the execution of the purported will, and the circumstances connected therewith, so as to show the nature of the contentions that were being pressed by the parties, and the effect that the remarks of counsel might have in producing the result obtained. Whether ar not there was sufficient evidence to support the verdict, we will not now determine, as the cause must be remanded for another trial. It suffices to say that there was an exceedingly close issue on the facts presented to the jury, and it was of the utmost importance that the trial court confine the argument of counsel to the facts established by the testimony actually produced, rather than permit him to draw conclusions or inferences unfavorable to parties litigant by the absence of testimony which the parties were not called upon by the necessities or emergencies of the case to produce. Contestees could not have called Mr. Rodgers as a witness without violating that delicate sense of propriety which, happily, usually restrains counsel-on opposing sides from engaging in a “swearing match” to uphold their respective contentions. That clients and their counsel .-show a proper appreciation of the professional ethics which generally causes reputable members of the legal profession to -refrain from playing the double role of lawyer and witness will -always be encouraged rather than condemned when brought to the attention of this court.
The lawyer, .however, is a competent witness in the case -where he is also paid counsel; and where he is placed in the unfortunate position of seeing an absolute -miscarriage of justice unless he testifies, a sense of duty to his client might constraint, him to 'become a witness, and in such case he could do so without, the least impropriety. Instances of -the kind rarely occur. Certainly they never occur where the facts which the attorney may be expected to disclose are known and can be proved by other-witnesses. Such was the case at bar. Mr. Rodgers, so far as the-record ishows, knew no fact that could not have been, and was not, -established by other witnesses. Theme was no question -of ■the want -of mental capacity of the testatrix to comprehend the-document which he had written and which she signed in his-presence as a witness. The only possible effect of his testimony, so far as we can see, would háve been to corroborate or contradict the testimony of some other witness in the cause, possibly on some collateral matter.
Appellant’s cause must not be prejudiced because they and! (their counsel observed the rule -of professional ethics which almost universally obtains among laywers of good repute. Indeed, in the case at bar appellants and their counsel could' hardly have violated the rule without -subjecting -themselves and’ their cause to just criticism, calculated to prejudice their interest before the jury.
In Frear v. Drinker, 8 Pa. St. 520, it is said: “It is. a. highly indecent practice for an attorney to cross-examine witnesses, address the jury and give evidence himself to co-ntradict" the witness. It is a practice which, as far as possible, should be-disc-ountenanced by courts and counsel. * * It is sometimes-indispensable -that an attorney, to prevent injustice, should give-evidence for his client. * * * All the courts can do is to* discountenance the practice, and, where the evidence is indispensable, t-o recommend to the counsel to withdraw from the cause.”' Mr. Greenleaf says: “In regard to attorneys, it has in England' been held a very objectionable proceeding on the part of an attorney t-o give evidence when acting as advocate in the cause, and a sufficient ground for a new trial.” 1 Greenleaf, Ev. § 254, and cases cited. Of -course, such is not the rule-in this country. In Ross v. Demoss, 45 Ill. 447" date_filed="1867-09-15" court="Ill." case_name="Ross v. Demoss">45 Ill. 447, this language is used: “It is of doubtful professional propriety for am attorney to become a witness for his client without first entirely withdrawing from any further connection with the case; and am attorney occupying the attitude of both witness and attorney for his client subjects his testimony to criticism, if not suspicion. * While the profession is an honorable one, its members should not forget that even they may so act as to lose public confidence and general respect.” Little Rock & Ft. S. Ry. Co. v. Cavenesse, 48 Ark. 131; Weeks on Attorneys at Law, § 124; Rapalje, Witnesses, § 43; Walsh v. Murphy, 2 Green’s Rep. 227; See 3 Wig. Ev. § 1911 and notes for an interesting discussion on the subject; Brown v. Swineford, 44 Wis. 282" date_filed="1878-01-15" court="Wis." case_name="Brown v. Swineford">44 Wis. 282; Spencer v. Kinnard, 12 Tex. 180" date_filed="1854-07-01" court="Tex." case_name="Spencer v. Kinnard">12 Tex. 180, 188; Little v. McKean, 1 Sand. N. Y. 607, 609.
Mr. Rodgers was the -attorney for the proponents of the will before the probate court, and we assume, from the record, that he was at least one of the leading counsel in the trial of the cause before -the circuit court. Having drawn the will and being present when it was signed, and having witnessed the same, he was cognizant of what took place at the time. Commenting upon his failure to testify "as a circumstance to be considered against the contestees” was tantamount to saying to the jury that it was the duty of appellants to have produced him, and the fact that they did not do -so left tlje inference that what he knew was against them. The jury by this sort of argument were left to imagine what it was that Mr. Rodgers knew that by his failure to tell should be used as a circumstance against appellants. They were left to speculate as to what Mr. Rogers knew, and -then to say that, whatever it was, because he did not tell it, the jury were warranted in concluding that it was unfavorable to the contestees.
The court, by failing to stop counsel, to reprimand him for the argument, and to take it from the jury when objection was made, virtually held that the remarks were proper. St. Louis, I. M. & S. Ry. Co. v. Harrison, 76 Ark. 430" date_filed="1905-07-29" court="Ark." case_name="Saint Louis, Iron Mountain & Southern Railway Co. v. Harrison">76 Ark. 430, 434.
The error is so pronounced and so calculated to give appellees an unfair advantage that a majority cl-eem it unnecessary to go into a consideration of the numerous other assignments of error. Reversed and remanded for new trial.