166 P. 544 | Or. | 1917
delivered the opinion of the court.
A transcript of all the testimony given at the trial has been sent up, from which it appears I. N. Foster
“How long have you been her attorney? How do you get your money out of her? She don’t pay anybody. • Do you take your pay in trade?”
The attorney in speaking of the plaintiff observed:
“The woman is a very old woman, or quite old,” in answer to which the defendant remarked, “Well, you can’t always tell, Schmitt; there is many a good tune in an old fiddle yet.”
Oliver Irwin, in alluding to the sworn declarations made by I. N. Poster as hereinbefore set forth having testified he was present at the time and place mentioned by that witness, was asked in adverting to the defendant: “Did he call or refer to Mrs. Webb as a crook?” The answer was:
“He didn’t refer to her at all.
“Q. Did he use the word perjurer in that conversation?
“A. No, there was nothing like that in my presence.
“Q. Did he use the word thief?
*151 “A. No.
“Q. Did he use the word bitch?
“A. No.”
The defendant as a witness in his own behalf specifically denied each statement of the several witnesses so imputed to him and also the language charged in the complaint. The cause was then argued by respective counsel and submitted. The court treating the testimony offered as insufficient to establish the averment of the complaint that the plaintiff was conducting illicit sexual commerce with men and that the words “crook” and “bitch” were not actionable per se, and because the complaint contained no averments of fact relating to special damages, instructed the jury to consider only the remaining parts of the charge as to whether the defendant maliciously made statements in the presence of others that the plaintiff was a perjurer and a thief. A verdict was returned for the plaintiff in the sum of $2,500, and judgment was rendered thereon as hereinbefore stated. Within the time limited the defendant’s counsel moved to set aside the verdict and judgment and for a new trial on the ground inter alia of the misconduct of plaintiff’s attorney, Gf. Gf. Schmitt. The stenographer who reported the testimony and the instructions made no note of any objections interposed or exceptions taken by counsel for either party during the argument of the cause.
In support of the motion for a new trial supplemental affidavits were filed,, asserting inter alia that Gf. G. Schmitt, one of plaintiff’s attorneys, who had not been a witness at the trial, in his closing argument in referring to the defendant’s denial of the testimony of W. J. Cook, hereinbefore set forth, said to the jury that the defendant was- a perjurer; that he perjured himself when he made such abjuration, “because I
Mr. Schmitt’s counter-affidavit is to the effect that the matters so set forth in the supplemental affidavits respecting the testimony given by "W. J. Cook and ~W. T. S. Hoyt and the remarks made by the defendant in relation thereto were withdrawn by the court from the consideration of the jury, except the words “thief” and “perjurer,” and that no exception was taken to such argument as appears from the report of the official stenographer who took notes of the proceedings occurring at the trial.
In considering the motion for a new trial the court refers to the statements contained in the affidavits and says they
“constituted prejudicial error and affected the substantial rights of the defendant, and the court is further of the opinion that the instructions of the court to the jury to disregard the matters testified to by W. J. Cook concerning said conversation between said W. J. Cook, the defendant, and plaintiff’s counsel, and to disregard the evidence and testimony relating to the words ‘bitch’ and ‘crook’ and certain obscene utterances attributed to the defendant, did not cure the error of the admission of the said evidence and testimony; that the admission of said testimony affected the substantial rights of the defendant, and that he was thereby prevented from having a fair trial, and for said reasons” a new trial was ordered.
In State v. Blodgett, 50 Or. 329, 344 (92 Pac. 820), where a judgment was reversed in consequence of the remarks of an attorney to the jury, it is said:
‘ ‘ But a case should not be reversed where improper references have been made by counsel in their argument to immaterial and irrelevant matters, unless it further appears that injury * * resulted, and that will be determined by the issue involved and the state of the evidence.”
In the case at bar it is- believed that the concluding argument of Mr. Schmitt, wherein he asserted that in the presence of Mr. Cook he heard the defendant use language derogatory to Mrs. Webb,, and wherein he characterized Mr. Isensee’s denial of such statements as perjury, gave to the attorney’s observation on that occasion the character of evidence when he had not
No eiror was committed in setting aside the judgment and granting a new trial, and this being so the order to that effect is affirmed. Affirmed.