State v. Williams
42 P. 511
Idaho
1895
Check Treatment
MORGAN, C. J.

(After Stating the Facts.) — Subdivision 5. of section 7855 of the Revised Statutes of Idaho, is as follows: “When the evidence is concluded, unless the case is submitted to the jury on either side or on both sides without argument* the district attorney or other counsel for the people, must open* and the district attorney may conclude the argument.” There is no indication, either in this subdivision or in any other part, of this section, that it was the intention of the legislature to compel the district attorney to close the argument of the ease in person, and therefore there can be no reason whatever to construe the word “may” in the last clause to mean “must.” In People v. Biles, 2 Idaho, 114, 6 Pac. 120, this court held that, authority is given in the statute for the employment of private counsel, who may properly assist the district attorney in the prosecution of criminal causes. It also holds that the district, attorney shall have the general management and control of all such cases: that is, he is entitled to have the direction and control of all those matters which properly pertain to the position of the leading attorney in a causé, among which are arranging- and putting in the testimony, and arranging the order of the-argument, subject, of course, at all times, to the statutory provisions, and the reasonable rules and regulations of the court,, and the directions and control of the judge thereof. But there-is no statute requiring the district attorney to close the argument of a criminal cause in person, when he'may as well or-better do so by the assistant counsel. The claim that assistant counsel, not having taken the same oath as the district attorney* may go out of his way, or out of the record, to attack the defendant or his witnesses, has no force whatever. The court has-*505abundant power to compel all attorneys to keep within tbe record, and within a proper line or argument. Allowing the argument to be closed by private counsel assisting the prosecution was approved also by this court in the case of State v. Hurst, ante, p. 345, 39 Pac. 556, wherein the court states that “this, has always been the practice in this jurisdiction [that is, within the jurisdiction of the supreme court of the state], and there-is nothing in the statute prohibitory of it.” We are of the-opinion, therefore, that the order in which counsel for the prosecution shall address the jury should be left to the discretion of' the district attorney, and that it was error in the court below to compel the district attorney to close tile argument in person.. This decision is not intended to, and does not, interfere in anj, manner with the power of the court in the exercise of a sound discretion, under section 7856 of the Revised Statutes of Idaho,, to change the order of the trial laid down in section 7855.

Huston and Sullivan, JJ., concur.