LICENSE OF SPEECH OF COUNSEL.
By Irving Browne.
II.
IN the amusing " Legal Reminiscences" of Mr. Chittenden, in the "Green Bag" for July, he relates how he remarked to a jury, in reference to a false witness, that "they could see the lie run out of him as they had seen it run from a leach in the home soap-making of their early lives." This was a good pun and an acute observa tion, but it would have been dangerous "out West" or "down South," for if it had been properly objected to, and the jury had not been warned by the judge to disregard it, a new trial might have resulted. In Lake Erie & W. Ry. Co. v. Cloes (Ind. App.), 32 N. E. Rep. 588, the counsel said, in reference to a remark made by a conduc tor in expelling the plaintiff from a train, "the conduct of this conductor and these railroad employees shows that they have become' like the corporation for whom they work, — that they have become so hard hearted and unfeeling that they have no charity for their fellow-men." This was held no error, and yet it was an accusation that the greatest of the three chief Christian virtues did not abide in the master or the servants. In Dale v. State, 88 Ga. 552, the remark of the prosecuting counsel that the jury knew the defendant's history, and that a certain witness "lied from stem to stern," was held not sufficient, in spite of the egregious mix ing of metaphors, to warrant a new trial. A perjured ship is really a novel spectacle in a court-room. But this was where there was no objection, and the court warned the jury not to be carried away by the nautical allusion. It would seem that a ship might reasonably " lie to." In Henry v. Huff, 143 Pa. St. 548, it was held that allusions by counsel to the wealth
or poverty of parties, the strength of corpo rations, and the comparative helplessness of an individual are proper when made fairly and to stimulate the jury to careful and con scientious action, but not when made for the evident purpose of inflaming their passions and prejudices. But in Waterman v. Chicago & A. R. Co. 82 Wis. 613, a new trial was granted be cause counsel told the jury that if their award of damages should be regarded by the court as excessive, "it is our privilege to throw off as we see fit to," and " Money may minister somewhat to his comfort, and shall not he have it from a company that is able to pay?" This seems a very hard bit for the mouth of counsel. Newman v. Vicksburg Ry. Co., 64 Miss. 115, was a suit by a "poor negro "for the killing of his stock. Counsel intimated that the company, with its army of re tainers, was more likely to overawe wit nesses than was the poor negro whom he represented. He said that " these corpora tions have grown to such a position that they seem to have been constructed that a few may live and fatten on the arterial blood of the country." " Things have come to such a pass that a railroad company is very much injured if a humble man dares to bring them into the courts. If he appeals to the juries of the country, it is high treason." "Is it not a fact that it has never happened that a railroad employé has ever testified that he did anything to the damage of the company in litigation? It never has hap pened, and never will till the last syllable of recorded time." " If that horse had be longed to that engineer, he would have been alive to-day." It was held, however, that these remarks were not unduly inflamma
