State v. Whitmore

53 Kan. 343 | Kan. | 1894

The opinion of the' court was delivered by

Allen, J.:

This was a criminal prosecution for libel. The defendant was convicted and sentenced, and appeals to this court. Only the last allegation of error need 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 received the direction of the court, shall have the right to determine, at their discretion, the law and the fact.”

In arguing the case to the jury, counsel for the defendant attempted to read from and comment upon certain authorities bearing on the law applicable to cases of libel and slander. The prosecution objected, and the court sustained the objection. The contention of the state is, that the authorities sought to be read related to actions of 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 are unable to 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 prosecution for libel and to a civil action to recover damages for slander are 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 be utterly foreign to the subject of a prosecution for libel. In the case of The State v. Verry, 36 Kas. 416, it was held that the court erred in refusing to permit counsel for the defendant to address the jury upon the questions of law involved in the case, unless the argument coincided strictly with the law as stated by the court in its instructions, and that counsel for the defendant had a right to present and press upon the jury views and interpretations of the law at 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 supervision of the court and such restrictions as are clearly necessary and proper.

In this case we have only one further question, namely, whether, in discussing the law, counsel 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 reasoning of courts and of law writers to enlighten their judgment. It would be indeed strange if courts composed of men specially trained and educated to a knowledge of 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 law to them, as authority and for illustration, in like manner as counsel would do in arguing the law to the court. This right has accordingly been upheld in those jurisdictions where the right to argue the law to the jury exists; those courts bolding 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 the time to be consumed, but may prevent the reading of matters wholly foreign to the issue on trial, yet it may not strictly confine counsel to authorities in line with the court’s instructions. 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.