Salt Lake evening Democrat. [volume] (Salt Lake City, Utah) 1885-1887, 1885-06-29

and gives additional ground to the defendant
upon which to base his claim for new trlal.
A Judge has no right to express his opinions
upon the facts of the case IN the hearing or
the Jury, in a manner that will have ten
dency to affect their verdict. The rule Is
laid down in many we'll considered cases,
that it is not proper for the judge to make
remarks in the hearing of the jury, calcu-
lated to influence their finding.
1t appears by the record that after the
Judge had made the remark that l have
quoted, that the District Attorney made no
further comment ON that subject. 1t also
appears that at another part of his argument
he stated to the jury that during the trial OF
the case an outsider had come into the court
room and made signals with his fingers, as
a means of telegraphing to the jury. Inc
defendants counsel interrupted MN anu
called him to order, upon which the Court
said "that can be attended to afterward,
and thereupon the District Attorney ceased
to comment upon it. The prosecution con-
tends that the remarks referred to were
made in the heat of argument, without any
thought of travelling outside the record, anu
with no purpose or intent to m1sleao Inc
iury in their consideration of the case. Inc
prosecution submits that the lmproprletleS
complained of were inadvertant; that they
were not the result of mature dellberatlon,
and that they were not continued. All OF
which am glad to concede, but the fact
that the remarks were inadvertently made,
would not remove their natural effect upon
the jury. The prosecuting officer, repre-
senting and standing for the government,
by reason of the very position that he
occupies, has more weight and lnt1u-
ence with the jury than private
counsel. He is supposed to have no more
interest in the case than that justice may be
done between the government and the
prisoner at the bar. He is supposed to be
impartial in his investigation of crime and
in his efforts to suppress it. Upon the one
hand, he is not to let any guilty man escape,
upon the other hand, he is not to allow any
innocent man to be convicted. On this &C,
count, his words to the jury being presumed
by the law, and by the people for that mat
ter, to emanate from an unpreJudlced ana
unbiased mind, his statements have mn
nitely more weight, and his remarks should,
therefore, be more guarded than those OF an
attorney who appears in behalf OF the de-
PENDANT. A prosecuting attorney is not
plaintiffs attorney, but sworn minister OF
Justice; as much bound to protect the lnno-
cent as to pursue the guilty.
His position is one involving duty OF I'M
partiality, not altogether unlike that of the
Judge himself. The position IS trying one,
but the duty, however, exists.
He represents the public interests, which
CAN u6N6T nc UuO SO1ANASOAOA Va
the innocent His object, like that of the
court, should be simple justice, and he has
no right to sacrifice these to any pride OF
professional success, and however strong
NAV be his belief in the prisoners guilt, he
must remember that though unfair means
may happen to result in doing justice to the
prisoner in the particular case, yet justice
so attained, is unjust and dangerous to the
whole community.
THAT ba RON, oyyo Oft no A ccictant District
ATTORNEY were calculated to work injury to
defendant, and were error, l do not think
can be successfully denied. But 1t Is argued
that no exception was taken at any time,
that there was nothing to except to, that
the Court was asked to interfere and did so,
and that thus the application of the defend
ant was granted, and that the matter has
considered by the Court. 1t would
seem to be too clear for argument that the
matter is subject to review by the Supreme
Court. The Supreme Court has supervisory
jurisdiction over the District Courts, and
whenever it appears that defendant has
not had fair trial, or that the trial has not
been conducted in accordance with the set
tied rules of law, this Court has the power
to review the proceedings and to order a new
trial. There are many cases In the books III
which it has been held that points similar to
the one under consideration would be con-
sidered by an appellate court. See ScrippS
VS.. Reilly, 30 Mich, 391, and cases there
cited. 1t has been many times ruled that
counsel, i'll argument, must not seek to lntiu-
ence the jurors by reference to the matters
in the nature of evidence, not in proof be-
fore them, and that the trial judge should
promptly repress the attempt as something
reprehensible.
1t has been held that where counsel have
travelled outside of the record in addressing
the jury, that the error was not cured even
by an instruction to the jury not to consider
the matter.
1t is the chief duty of the trial judge to
secure fair play to lltlgants, and, so far as
practicable, to shape the order and course of
the proceedings in such & way, that neither
party will be put to disadvantage not due
to his case or its mode of management by
his counsel. The rules of the court, and
what is called the course of the court, have
their origin in the purpose to secure fairness
In legal controversies, and the order of bust
ness and the regulated succession of steps at
trials have the same object. The courts
have usually been very firm in combining
counsel within proper bounds and guarding
jurors against unfair and irregular acts and
endeavors, and parties have been deprived of
their verdicts upon evidence merely indicat-
ing the. operation of influences about the
outskirts of the trial.
1t was stated in Tucker VS.. Henniker, Al
N. H. 800, that it would be utterly vain and
quite useless to caution jurors in the pro-
gress of trial against listening to converse
tions out of the court room in regard to the
merits of the case, if they are permitted to
listen In the jury box to statements of facts
not in evidence calculated to have a bearing
upon their judgment, enforced and illu-
strated by all the eloquence and ability
of learned, Fzealous and interested counsel.
J1n1f1 he
marks of the prosecuting attorney COM
planned of, the fact of the weakness of the
testimony, the immaterial evidence received
from the witnesses Brown and Warburton,
and the remarks of the court upon the obiec-
ton made to the line of argument of the
District Attorney, am forced to the opinion
without going any further that there is error
III the record, and that new trial should be
granted without any hesitation. 1t may be
that this defendant should be convicted, but
the fact that he should be convicted, if such
Is the fact, does not deprive him of his right |
to fair trial according to the law and the !
evidence.
4. The trial having taken the course that |
L have indicated, it became the duty of the |
court when it came to charge the jury, to
very carefully guard the rights of the de-
PENDANT, and to clearly draw the attention
of the jury to the real issue in the case, and
inform them that outside matters, and ire
evant testimony, should not be considered
by them. The testimony proper for their
should have been pointed out
md the matters and the testimony that the
Jury ought not to consider should also have
been called to their attention, but the charge
If the court fails to do this. The attempt
made to cure the errors that have indicated
vas not sufficient. Each and every instruc-
ion requested by the defendant is refused.
many of them being clearly proper, some
being calculated in slight degree to cause
he jury to disregard the matters that had
leen improperly brought to their attention.
The charge simply states the offense, tells
he jury that it is brought under section
If the statute of the United States which is
cad to them; that the defendant is pre-
umed innocent until proven guilty beyond