74 Ala. 386 | Ala. | 1883
— The remarks made by counsel in this cause, and objected to. were not only not supported by any evidence, but they were impertinent to the issue the jury were sworn to try. Any offer to make proof of the matters stated, would have been ruled out as illegal. “ Large-hearted, great-souled, confiding, trusting,” when used as attributes of character, are facts; and are provable as other traits of character are, when they become a material subject of inquiry, if they ever can become so. They were not material in - this case. If pertinent facts had been in evidence, tending to show the plaintiff possessed these traits of character, we will not say counsel would have been beyond bounds, if he had contended, as an inferential fact, that his client possessed such traits. Much latitude must be allowed to counsel, in the matter of drawing inferences from proven facts. We would not interdict free advocacy. Facts, however, must not be stated, as facts, of which there is not only no proof, but of which there can legitimately be no proof.
We think the language complained of in this case should not have been indulged ; and coming as it did from able, eminent counsel, it was well calculated to exert an improper' influence on the minds of the jurors. The court might, and probably should, have arrested it ex mero m.otu. It is one of the highest judicial functions, to see the law impartially administered, and to prevent, as far as possible, all improper, extraneous influences from finding their way into the jury-box. And when opposing counsel objected to the improper language employed, and called the attention of the court to it, it was not enough that offending counsel replied, “ Oh, well, I’ll take it back.” Such remark cannot efface the impression. The court should have instructed the jury, in clear terms, that such remarks were not legitimate argument, and that they should not consider any thing, thus said, in their deliberations. Nothing short of a prompt, emphatic disapproval of such line of argument, and that from the court itself, can avert the probable mischief. Sullivan v. The State, 66 Ala. 48; Cross v. The State, 68 Ala. 476.
[Reversed and remanded.
