The record-union., 1898-02-25

field covered earlier in the case.
Mr. Weinstock was excused and Mr..
Johnson announced that the evidence
was all in.
After the recess Mr.. Metson an
nounced that the defense had no more
evidence, but desired to present au-
thorities on motion to strike out the
judgments of the Gilman and Nc
Clatchy and the Royster and Nc
Clatchy libel cases. He further said
that the defense claimed the right to
open and close the argument to the
jury, and We're ready to cite authori-
ties in favor of the contention, but sug-
gested that the arguments to the jury
be not begun until this morning.
Judge Holl accepted the suggestion
relating to the time of beginning the
argument, and at his suggestion the
jury was excused until this morning
OFENING AND CLOSING ARGU-
MENTS.
Then Mr.. Metson began his argu-
ment on the question as TO which side
should have the opening and closing
The defendants, he said, admitted hav-
ing published the article charged in the
allegation of the complainant, but
pleaded justification and mitigation,
and the rulings of the court had prac-
tically decided that the burden or re-
sponsibility rested on them He quot
ed the common law maxim which pro-
vides that he who carries the burden
shall have the right to open and close.
Mr.. Metson cited a number of au-
thorities in support of his contention,
and claimed that in every instance
where the burden of proof rested with
the defendants (and the courts rul-
ing on the demurrer early in the case
had placed the burden of proof on the
defendants) they We're allowed to open
and close.
Attorney Bruner also cited a list of
authorities bearing on the subject.
Judge Holl said that some of the au-
tEoritiec cited seemed to come Squarely
up TO the case on trial, but the prosecu-
ton had introduced evidence that de-
PENDANTS had shown actual malice which
was part of the case and had not been
admitted by the defendants. He con-
tended that the statutes of the State
We're perfecly clear on the matter, and
that they would take precedence over
either the statutes of other States or over
the common law. He cited q number of
California decisions which he claimed
bore directly upon the point atfssue, and
which gave the prosecution the right to
open and close. He called attention to
the fact that the attorneys for the de-
fense had presented no California de-
cisions bearing on the case.
Attorney Bruner called attention to
the Martin will case, tried before Judge
COffey at San Francisco, in which the
defense, bearing the burden of proof.
was allowed the opening and closing.
He contended that the rule had been laid
down by the text-writers that the party
having the burden is the party who, If
no proof be offered, will be defeated in
the case. Such a condition of affairs,
he contended, exists in the case on trial,
and according to the authorities cited
the defense should be allowed to open
and close.
Judge Hughes had no hesitancy in de-
Gliding the point, as follows:
JUDGE HUGHES DECISION.
There is no doubt in my mind but
what Section 607 of the Code of Civil
Procedure places it in the discretion Of
the court to direct the manner, first Of
producing the testimony; second, in the
argument to the jury, in a proper case
therefor.
The defendants did not at the time
the taking of the evidence was COM
menaced, make any offer or call the at
tention of the court to the subject mat
ter of their motion at this time, and the
plaintiff did take the initiative in the
Introduction of testimony. 1t is true that
most of the testimony that was intro
duced was upon the proposition of ex-
press malice, but that is immaterial.
do not feel that it would be the exercise
of a sound discretion on the part of the
court to compel the defendants to take
the initiative and give them the closing
of the argument. do feel it is nothing
more than justice that in any case where
the burden rests upon one of two par
ties that that party should have the
opening and closing of the argument,
but he ought not to have it unless he has
also had the burden of the production
Of the evidence.
las / say, the matter was not called to
the attention of the court until this time
and after the plainiff had introduced his
evidence, and the defendants introduced
their evidence. 1t is true that the
greater portion of the answer of the
defendants was not touched upon by any
Of the evidence of the plaintiff in his
case in chief, but the testimony has
been put in in this manner and / do
not think it would be right at this time
to deny plaintiff the opening and closing
feel that l can say safely that wher-
ever the burden rests upon particular
person, it is nothing more than justice
that that party should have the opening
and closing, and had this matter been
called to my attention at the inception
of the case, l doubt not but what
should have directed the defendants to
have commenced the production of their
testimony, and thereafter, and at this
time, have given them the opening and
closing, but at this time the motion will
be denied"
TEN HOURS FOR ARGUMENTS.
Then Mr.. Metson inquired whether
the court intended to limit the time for
arguing the case.
Judge Hughes said he certainly would
set limit to the arguments, but that he
preferred that the attorneys would agree
among themselves on some reasonable
limitation.
Mr.. Bruner said the defense was will
ing TO enter into an agreement whereby
the case might go to the jury at )
O'Clock Saturday evening
Judge Holl said five hours would not
be sufficient time in which to present
the argument for the prosecution.
Mr. Metson said an hour and a half
was all the time he wanted
Yes" said Judge Holl, but / can't
talk as fast as my friend Metson.''
Judge Hughes thought the case could
be reviewed in an hour and a half and
Judge Hoil said he would just as we'll
Laa,in IL lin ted q that ,,a,.iad Of