State v. GeigerState v. Geiger
Lead Opinion
Thе judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Porter in the Supreme Court.
Dissenting Opinion
(Dissenting.) In his opening statement to the jury, the assistant prosecutor went beyond the indictment; *518a in tile course of the trial ho questioned plaintiff in error as to the use of an alias, knowing full well that the state had no proof to the contrary, should it be denied, as it was; he quеstioned plaintiff in error as to his conviction of violations of certain departmental regulations some years prior in time to the commission of thе crime of which the jury found him guilty; he used inflammatory and intemperate language аnd repeatedly injected his personal opinions into his summation. Tlie cumulative effect of these incidents was harmful and manifest error, clearly cоnstituting reversible error. As was well said in Berger v. United States, 295 U. S. 78; 79 L. Ed. 1314: “While lie [the prosecuting attorney] may strike hаrd blows, he is not at liberty to strike foul ones.”
Begardless of the tactics pursued in the trial, I believe there is a further ground requiring reversal. In charging the jury the trial court said : “This case took, as I say, seven or eight days, and in that time maybe it is possible that you jurors have read the newspaper accounts of the trial. I want tо instruct you now that, just as the court may be in error and statements of counsel may be in error, statements and reports of newspapers may also be in error, and I want you to disregard any newspaper article or statement in the newspaper which does not coincide with the evidence as you recollect it to he yourselves.” (Italics mine.) This is a clear example оf a negative pregnant, i. e., a form of negative expression which implies, or carries within it, an affirmative. The affirmative is obvious, namely, that if the newspaper article coincides with the evidence as the jury recollects it, then such newspaper article may be considered by the jury. Since when is a jury permitted to compare a newspaper version of the facts with thе jurors’ own recollection of the facts? I had always believed it a fundamental rule that jurors were to render their verdicts upon the evidence adduсed at the trial and not upon any other basis. In dealing with this portion of the charge, the Supreme Court said: “It is argued that in effect the court conveyed to the jury by this instruction the thought that theyr were to disregard any newspaper article which did not coincide with their recollection of the evidence. We dо not think that the comment concerning *518b newspaper articles is susceрtible of any such construction nor do we think the court gave undue prominence to his own view, as it is argued, especially when consideration is given to all that the court said as a preface to that comment.” Reverting to the court’s charge, we find that immediately prior to the quoted comment the court said: “All extraneous matters, statements, suggestions, should be carefully discarded by you, and you should base your verdict solely on the evidence and be guided by these instructions alone.” This is a correct statement but in the next paragraрh it was nullified. It is a fundamental rule that where the court charges a correct rule and an incorrect rule on the same subject-matter, the jury is not permittеd to guess which is correct. That contradictory statements in a charge tо a jury constitute error requiring a reversal is so fundamental as not to need the citation of authority. It seems to me that the adoption of the Supremе Court’s holding in this respect destroys root and branch the settled rules in this state with relаtion to what is and what is not proper for a jury to consider.
The Chancellоr, Mr. Justice Perskie, Judge Wells and Judge Hague authorize me to express their cоncurrence herein.
For affirmance —Case, Bodine, Donges, Heher, Dear, Rafferty, Thompson, JJ. 7.
For reversal —The Chancellor, Perskie, Colie, Wells, Hague, JJ. 5.