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 License of Speech of Counsel.

539

LICENSE OF SPEECH OF COUNSEL.

III. /CLEVELAND Paper Co. v. Banks, 15 ^-* Neb. 20; s. C. 48 Am. Rep. 334, was an action on an alleged agreement to pay for paper furnished the printing company. The attorney for defendant persisted in offering to prove that one S., the secretary of the printing company, had embezzled the funds and appropriated the property of the said company, which evidence was excluded. In the argument to the jury, defendant's attor ney*said : " The history of Smith you know; they told you that directly after these goods were shipped Smith went away, and that he went away with property that was not his own." Held error, and that the cause must be reversed. The court said : " The rights of parties are to be determined from the evi dence; and an attorney, in arguing a case to a jury, must confine the discussion of facts to those proved. If he can be permitted to make assertions of facts, or insinuations of the existence of facts, not supported by the proof, there is danger that the jury will lose sight of the issue, or be influenced by misstatements as to the prejudice of the other party. Where such statements are improperly made, prima facie they are preju dicial, and may be sufficient to cause the reversal of the case. In the case under con sideration it was entirely immaterial whether Smith had embezzled the funds or appro priated the property of the Post Printing Company or not, and any evidence tending to prove such facts, or assertions of their existence, must have diverted the attention of the jury from the real question at issue and must have been prejudicial That evidentlv was the object of the statement, and that it had the effect desired is pretty clear. The question at issue was whether Banks, the president of the company, had made

himself personally responsible for the pay ment of a quantity of paper purchased for and received by the Post Printing Company. Whether or not Smith had embezzled the funds or appropriated the property of the company, in no event could have the slightest relation to the case; and the only effect of the persistent öfter of such evidence and mak ing of such statements was to cause the jury to consider that the alleged wrong of Smith would defeat the liability of the defendant. In our opinion, therefore, the statement was so far prejudicial as to demand a new trial." In Grosse т'. State, 11 Tex. Ct. App. 377, the court said : " The eighth bill informs us that the district attorney in the close stated to the jury over objections of defendant, that ' he heard, while out on the street in New Braunfels, a citizen remark that it was a great shame that the defendant should have taken the money of the old man Wucherer, near seventy-one years old, and all the money he had in the world.' The court overruled the defendant's objections and allowed the district attorney to repeat these remarks, and gives this explanation : ' The district attorney used the remarks by way of argu ment, and the facts were testified to besides, — that is, that Wucherer was seventy-one years old, and it was all the money he had.' We cannot conceive how these remarks could be termed, as applicable to a legal trial, argument. An argument, it is true, is 'a reason offered in proof, to induce belief or convince the mind.' A person on the street believed that defendant stole an old man's i money, and thinks it a shame; therefore the minds of the jurors should be convinced that defendant is guilty. "If this is legitimate, the crowd, which in some cases is a mob, should be consulted,