License of Speech of Counsel. tory; and they do seem very mild and innocuous in this meridian. In Augusta, etc. R. Co. v. Randall, 85 Ga. 297, a new trial was asked because counsel said, " At all events, gentlemen, I believe, be fore high Heaven, that if Mr. Mosher had not paid this visit to our witness this morn ing, she would have fulfilled her promise, and would have come to court and testified in the case. It would have been improper for me to say what she would have testified to; but we deem her testimony important — in fact, our most important witness — and- were very anxious to have her present." The appellate court held that counsel soared too high in these remarks, and allowed a new trial on account of his heavenly flight. In Cartwright v. State, 16 Tex. Ct. App. 473; s. с. 49 Am. Rep. 826, the prosecuting attorney, having " brought down the house" by his remarks, alluded to it as " a sponta neous outburst of approval " by the audience of this cause, after they had heard it truth fully represented by the State. The judge did not rebuke the " claque " nor the remarks. Result, cause " reversed and remanded." In Tafft v. Fiske, 140 Mass. 250; s. c. 54 Am. Rep. 459, a new trial was granted be cause counsel commented on a discrepancy between the original and the amended an swer, and argued therefrom that the defence was fictitious. In Brown v. Swineford, 42 Wis. 282; s. c. 28 Am. Rep. 582, an action of assault and battery, counsel, in order to enhance dam ages, without evidence on the subject of de fendant's wealth, spoke of him as the servant of a wealthy railroad company. This was held material error, the court observing: "For all that appears in this case, the ap pellant may be as poor as Job in his down fall." Why not " as poor as Job's turkey "? The court further said : " It is to the honor of the bar that this is the first time that this question has come before this court." This is somewhat ambiguous. Was the compliment directed to the bar on account
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of their self-control, or on account of their ignoring one another's loss of temper and improper allusions? But the court said they must make an example, although the offender was " an eminent member of the bar; a gentleman of high character, personal and professional, known to every member of this court; whose professional ability needs no adventitious aid, and who probably fell into this error casually and inadvertently." This was a " first-rate notice;" and if I only knew the eminent gentleman's name, I would gladly publish it, and thus give him a capital free advertisement. But the error seems very trivial. It by no means follows that because a master is wealthy his servant must be. Dr. Johnson's aphorism, "Who drives fat oxen must himself be fat," does not apply. In Hatch v. State, 8 Tex. Ct. App. 416; s. c. 34 Am. Rep. 751, an indictment for forgery, the public prosecutor, in addressing the jury, denounced the defendant as a "fellow," and a " land thief," and " as guilty as hell," and declared that he had obtained a new trial " by a dodge and technicality," and boasted of his ability to convict him before twelve honest men as often as he could get a new trial. The jury, not wish ing to be deemed dishonest, convicted the defendant, and a new trial was granted on account of this language. It should seem that the prosecuting attorney ought not to have said "land thief," for he ought to have known that real estate is not a subject of larceny! Commenting on his allusion to the "technicality " for which a new trial had been awarded, the court remarked that all defences "are in я certain sense and to a certain extent ' technical,' and may in the estimation of some be mere ' stumblingblocks ' in the way of justice, and 'foolish ness ' in the way of a speedy enforcement of the law, just as the doctrines of Christianity at first were to the Jews a stumbling-block and to the Greeks foolishness. Yet they are rights, nevertheless," etc. It seems that "the skilful counsel for defendant," as the
