Thе plaintiff in error was convicted of the offense of having carnal intercourse with an unmarriеd female of previous chaste character under the age of eighteen years, in violation of Chapter 8596, Laws of. Florida, Acts of 1921, and brings error.
Counsel for the plaintiff in error contends that a new trial should have been granted because during the argument, before the jury the County Solicitor said: “This case is not as serious to the defendant as it is to the little girl, because by a single strokе of the pen the Governor could grand a pardon.” The court upon counsel’s objeсtion “instructed the County Solicitor that he had nothing to do with the question of pardon.” The County Solicitоr then said: “I cannot discuss a pardon to you gentlemen, but this case is not as serious to the defendant as counsel for the defendant would have the jury believe. I have not objected during the аrgument of counsel for the defendant, and it is the truth that hurts.”
The record shows that defendant’s counsel оbjected to the remarks of the County Solicitor, “which objection was overruled and exception noted.” This incident is made the basis of the ninth assignment of error. There was no harmful error in this incident. The statement of the County Attorney, while irrelevant, and its correctness somewhat doubtful, at least subject to dispute, cannot be said to constitute an abuse of counsel’s privilege in going fаr afield in what is called the argument. Besides the court admonished counsel that the matter of а pardon was for another tribunal, which seems to have been about all the court could do under the circumstances. Juries are composed of men of sound judgment and intelligence. At lеast so the law requires, ánd it is not to be presumed that they are led astray to wrongful verdicts by' the' impassioned eloquence and illogical pathos of counsel. The
It is generally understood that the expression by сounsel - in argument before the jury of personal opinion of guilt is not only bad form, but highly improper as counsel is not a witness, nor under oath to speak the truth, nor called as an expert to give his opinion. Adams v. State,
Any unfair advantage taken by counsel for the State is equally reprehеnsible; but it is extremely difficult to definitely state at what point the line should be drawn between what is doubtfully pеrmissible and what is clearly wrong. Such matters probably should be left to the sense of fairness of the State’s counsel and the trial court’s discretion. What sometimes may seem to be an unfair advantаge may to the court and jury be unnoticed, and appears serious to counsel only beсause of the assumed importance of the other’s opinion when speaking in his capacity of State Attorney. The better practice as this court has often indicated is for counsel to confine their remarks to the evidence and the inferences which an imagination hоwever rich it may be draws therefrom.
While we are unable to perceive the relevancy of the statement that the “case was not as serious to the defendant” as his counsel desired it to appear, nor what possible bearing the County Solicitor’s patience during the argumеnt could have upon the question of defendant’s guilt, we cannot say that the court’s refusal to sustаin the objection was an abuse of discretion. v
The tenth assignment of error which rests upon the сourt’s refusal to grant a new trial upon the ground of
In the last cited cаse the court' speaking through Mr. Justice Hocker, expressed the view that while the general rules regulating the granting of new trials on the ground of newly discovered evidence should be adhered tо, they are not inflexible and must sometimes bend in order to meet the ends of justice. And in this case the Court was of the opinion that in view of the unsatisfactory character of the evidence upon which the verdict was rendered and the offer of newly discovered evidence to throw light uрon the question of guilt, the motion for a new trial should have been granted.
That language is of pеculiar applicability to-this. case. The evidence is unsatisfactory both as to the agе of the prosecutrix and her previous chaste character, which the newly discovered evidence if true will completely refute. In such case the ends of justice require that a new l trial be granted.
The judgment is reversed and a new trial ordered.