State v. WhitmoreState v. Whitmore
- Reporters:
- Before:
- Allen
The opinion of the’ court was delivered by
Allen, J.:This wаs a criminal prosecution for libel. The defendant was convicted and sentеnced, and appeals to this court. Only the last allegation of error neеd be considered. Section 309 of the code, concerning crimes and punishments, reads as follows:
“In all indictments or prosecutions for libel, the jury, after having reсeived the direction of the court, shall have the right to determine, at their discrеtion, the law and the fact.”
In arguing the case to the jury, counsel for the defendаnt attempted to read from and comment upon certain authorities bearing on the law applicable to cases of libel and slander. The prosеcution objected, and the court sustained the objection. The contentiоn of the state is, that the authorities sought to be read related to actions оf slander, and were therefore foreign to the issues in this case, because the rule as to what words are libelous and what slanderous is different. One of the cases from which defendant’s counsel attempted to read, Funk v. Beverly, 13 N. E. Rep. (Ind.) 573, was a civil action to recover damages both for slander and libel, and we *346are unable tо perceive any good reason why it would not be an authority that might be properly presented to a court. Libel and slander are in substance much the same, though it is true that the rules of law applicable to a criminal prosecutiоn for libel and to a civil action to recover damages for slander arе not in all respects the same; yet the subjects are not so foreign to each other that a case with reference to slander can be said to bе utterly foreign to the subject of a prosecution for libel. In the case of The State v. Verry, 36 Kas. 416, it wаs held that the court erred in refusing to permit counsel for the defendant to addrеss the jury upon the questions of law involved in the case, unless the argument coincidеd strictly with the law as stated by the court in its instructions, and that counsel for the defendant hаd a right to present and press upon the jury views and interpretations of the law аt variance with those stated by the court. That case settles the question as to the right of counsel to discuss the law freely, subject, of course, to the supervisiоn of the court and such restrictions as are clearly necessary and prоper.
In this case we have only one further question, namely, whether, in discussing the law, сounsel may read from authorities of recognized weight. The jury having been constituted a tribunal, not only for the determination of questions of fact, but of law as well, it would be a very strange rule that would deprive them of the advantage of the reasоning of courts and of law writers to enlighten their judgment. It would be indeed strange if courts cоmposed of men specially trained and educated to a knowledge оf the law should at all times be entitled to be aided by the books, yet juries, having no such advantages, should be denied the light they afford. In Thompson on Trials (§945) it is said:
“If the right exists to argue the law of the case to the jury, it must follow that the right exists to read books of the lаw to them, as authority and for illustration, in like manner as counsel would do in arguing the law tо the court. This right has accordingly been upheld in those jurisdictions where the right to arguе the law to the jury exists; those courts *347bolding that a substantial denial or deprivation of it is error for which a new trial will be granted.”
In support of this proposition, the following cases are cited by the author: Commonwealth v. Austin, 7 Gray (Mass.), 51; Jones v. The State, 65 Ga. 506; Johnson v. The State, 59 id. 142; Lynch v. The State, 9 Ind. 541; Harvey v. The State, 40 id. 516; Stout v. The State, 96 id. 407. In other states, it is said that the matter is largely within the discretion of trial courts. Texas cases only are cited in support of this proposition. The court may restrict the arguments, not only by prescribing a limit as to thе time to be consumed, but may prevent the reading of matters wholly foreign to the issuе on trial, yet it may not strictly confine counsel to authorities in line with the court’s instructiоns. Unless some latitude is allowed, the right to argue law questions to the jury becomes a barren privilege. We think it was substantial error to deny counsel the right to read from the cases mentioned to the jury.
The judgment is reversed and a new trial ordered.
All the Justices concurring.