6

§ 976. Arguments of counsel.-After the evidence has all been heard the counsel in the case make their arguments to the jury. The prosecuting attorney makes the first argument and in some states he is entitled to a reply to the arguments of the counsel for the defendant. The summing up must be confined to the facts which have been proved, or which it is contended the evidence tends to show.5 Matters of common knowledge, such as historical facts, may be referred to. Even this is not allowed if done in such a manner as to inflame the passions of the jury and cause them to lay aside reason. Only legitimate arguments should be used.8 Abuse of the defendant is improper. Full comment may be made on the evidence and its probative effect,10 but the prosecutor should not argue from his own special knowledge,11 or argue from what is not probative. 12 The counsel should not express his personal opinion as to guilt or innocence of the accused.13 Objection should promptly be taken to improper argument on the part of the counsel.14 The court may also interfere of its own motion.15 Usually, if the court admonishes the offending counsel and instructs the

V.

4 Doss Grat. (Va.) 557.

Commonwealth,

1

5 Ferguson v. State, 49 Ind. 33; State v. Ferrell, 233 Mo. 542, 136 S. W. 709.

6 Siebert v. People, 143 Ill. 571, 32 N. E. 431; Northington v. State, 14 Lea. (Tenn.) 424.

7 People v. McCann, 247 I11. 130, 93 N. E. 100, 20 Ann. Cas. 496; Tillery v. State, 24 Tex. App. 251, 5 S. W. 842, 5 Am. St. 882.

8 People v. Lemperle, 94 Cal. 45, 29 Pac. 709; State v. Romeo, 117 La. 1003, 42 So. 482.

9 Rhodes v. Commonwealth, 107 Ky. 354, 54 S. W. 170, 92 Am. St. 360; Coble v. Coble, 79 N. Car. 589, 28 Am. Rep. 338.

10 Wilson v. State, 175 Ind. 458, 93 N. E. 609; People v. Hovey, 92 N. Y. 554, 1 N. Y. Cr. 283.

11 People v. Lieska, 161 Mich. 630, 126 N. W. 636.

12 Bessette v. State, 101 Ind. 85; Cartwright v. State, 16 Tex. App. 473; 49 Am. Rep. 826.

13 Keesier v. State, 154 Ind. 242, 56 N. E. 232; State v. Church, 199 Mo. 605, 98 S. W. 16.

14 Holmes v. State, 82 Nebr. 406, 118 N. W. 99; Gilmore v. State, 37 Tex. Cr. 81, 38 S. W. 787.

15 Coleman V. Commonwealth, 25 Grat. (Va.) 865, 18 Am. Rep. 711.

jury to disregard the improper remarks, a verdict of conviction will not be reversed.16 However, if the court refuses to interfere when it should, or the harm is such that the court's instruction can not remove it, a new trial may be granted.17

§ 977. Charge of the court to the jury.-Upon the completion of the arguments of the counsel the court instructs the jury. In charging the jury the court should instruct it fully as to the law bearing upon the case, stating the issues, the law as to each issue, their duties to each issue and their duties to the final conclusion, and as to the punishment where the punishment is fixed by the jury. The judge, unless there be a plea of guilty, can not direct a verdict upon the evidence however conclusive it may be.18 All extraneous matter, such as irrelevant testimony, should be excluded.19 The court should not refer to any facts not in evidence nor allegations not in the record.20 The law should not be laid down abstractly but as applied to all the facts in controversy.21 It is usually error to read from a law book.22 It is error to state the law incorrectly.23 Ordinarily a mere omission to instruct the jury as to the law relative to some point in the case, is not a sufficient ground for a new trial unless such instruction is requested.24 The language of the charge must

16 Cheatham v. State. 67 Miss. 335, 7 So. 204, 19 Am. St. 310; Wilson v. State, 175 Ind. 458, 93 N. E. 609.

17 State v. Balch, 31 Kans. 465, 2 Pac. 609; State v. Moxley, 102 Mo. 374, 14 S. W. 969, 15 S. W. 556.

18 Tucker v. State, 57 Ga. 503; 1 Bish. New Crim. Proc., § 977, 2. 19 Gibson v. State, 89 Ala. 121, 8 So. 98, 18 Am. St. 96; Commonwealth v. Gilson, 128 Mass. 425.

20 Willis v. State, 134 Ala. 429, 33 So. 226; People v. Zachello, 168 N. Y. 35. 60 N. E. 1051.

21 Anthony v. State, 6 Ga. App. 784, 65 S. E. 816; Spears v. State, 220 I11. 72, 77 N. E. 112, 4 L. R. A. (N. S.) 402n; Hudson v. State, 40 Tex. 12.

22 Mitchell v. State, 73 Ark. 291, 83 S. W. 1050.

23 Beaudien v. State, 8 Ohio St. 634; Marie v State, 28 Tex. 698.

24 State v. Johnson, 8 Iowa 525, 74 Am. Dec. 321; State v. Rash, 12 Ired. L. (N. Car.) 382, 55 Am. Rep. 420.

be unambiguous and direct and such that the persons to whom it is directed will understand.25

§ 978. Custody and conduct of the jury.—In most states in cases of felonies, especially those that are capital, the jury at all times when not in the actual presence of the court should not be allowed to separate, and must be kept in charge of a sworn officer of the court.26 In cases of misdemeanor, however, it is within the discretion of the court to allow a separation during the trial;27 and in some states this rule applies in felonies.28 If these rules are violated and the defendant has been harmed he is entitled to a new trial; otherwise not.20 In some cases, if necessity or comfort requires it, the court may allow the jury to separate, or to walk abroad, the officer going with them and they communicating with no one.30 The jury, after they have retired, should not be allowed to hold any communication with outsiders,31 even with the judge of the court,32 or with the officer in charge of them, other than is necessary.38 Material misconduct on the part of the jury which affects the verdict is a sufficient ground for a new trial.34 Even the reading of newspapers by one or

25 Sumner v. State, 5 Blackf. (Ind.) 579, 36 Am. Dec. 561; State v. Sebastian, 215 Mo. 58, 114 S. W. 522.

26 Berry v. State, 10 Ga. 511; Jumpertz v. People, 21 Ill. 375; Quinn v. State, 14 Ind. 589.

27 Prewitt v. State, 65 Miss. 437, 4 So. 346; Rex v. Woolf, 1 Chit. 401.

28 Davis v. State, 15 Ohio 72, 45 Am. Dec. 559; Armstrong v. State, 2 Okla. Cr. 567, 103 Pac. 658.

29 Roberts v. State, 14 Ga. 8, 58 Am. Dec. 528; State v. Brown, 45 Iowa 418; Rowan v. State, 30 Wis. 129, 11 Am. Rep. 559.

30 State v. Griffin, 71 Iowa 372, 32 N. W. 447; Commonwealth v. Gearhardt, 205 Pa. 387, 54 Atl. 1029; Crockett v. State, 52 Wis. 211, 8 N. W. 603, 38 Am. Rep. 733. 31 Hoberg v. State, 3 Minn. 262 (Gil. 181).

32 Hoberg v. State, 3 Minn. 262 (Gil. 181); State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200.

33 State v. Langford, 45 La. Ann. 1177, 14 So. 181, 40 Am. St. 277; Brown v. State, 69 Miss. 398, 10 So. 579.

34 People v. Mitchell, 100 Cal. 328, 34 Pac. 698.

more of the jurors during the trial is a sufficient ground for a new trial, unless the prosecution shows that the defendant has not been prejudiced thereby.35 Determining the verdict by casting lots is clearly such misconduct as will invalidate the verdict.36 The use of intoxicants by any of the jury may be grounds for setting the verdict aside.37

§ 979. What the jury may take to their room.-With the permission of the court the jury may take the records into the jury room of the case,38 the instructions of the judge,39 real evidence used as exhibits at the trial,40 the entire written evidence, and in some states, where the jury are judges of the law, books of statutes.42

§ 980. Verdict based on the evidence.—A juror must not be influenced by facts within his own knowledge. His verdict must be wholly based upon evidence regularly given in open court. In case he has personal knowledge of material facts in the case he should go upon the stand and testify. If he fails to do so, and communicates such private information to the other members of the jury, the verdict should be set aside. 13

§ 981. The verdict.—After the jury have deliberated and agreed upon a verdict they return to the court room, and report their verdict in open court. This verdict, unless a

35 State v. Walton, 92 Iowa 455, 61 N. W. 179.

Woods, 49 Kans.

36 State V. 237, 30 Pac. 520.

37 Davis v. State, 35 Ind. 496, 9 Am. Rep. 760.

38 Sanders v. State, 131 Ala. 1, 31 So. 564; Cooke v. People, 231 Ill. 9, 82 N. E. 863.

39 Ragland v. State, 125 Ala. 12, 27 So. 983; People v. Monat, 200 N. Y. 308, 93 N. E. 982.

40 Jackson v. State, 76 Ga. 551; Yates v. People, 38 Ill. 527.

41 Davis v. State, 91 Ga. 167, 17 S. E. 292; Masterson v. State, 144 Ind. 240, 43 N. E. 138.

42 People v. Cochran, 61 Cal. 548; Jack v. Territory, 2 Wash. Ter. 101, 3 Pac. 832.

43 State v. Woods, 49 Kans. 237, 30 Pac. 520.

statute provides otherwise, may be either general or special. A general verdict is the finding of guilty or not guilty on the whole charge.44 A special verdict, which is rare in criminal cases, finds the facts of the case only, leaving the law to be applied by the court.45 Partial verdict is one which convicts as to a part of the charge and acquits or is silent as to the residue.46 The verdict must be the unanimous decision of the jury. It must be rendered in open court in the presence of the defendant,47 unless he has waived the right to be present. It is delivered orally,48 unless a statute requires it to be delivered in writing,49 and all the jurors must be present when it is received.50 The verdict may be returned on Sunday or a legal holiday.51 In most states a party may demand a poll of the jury; that is, each juror is asked, "Is this your verdict?"52 At any time before the jury is polled and the verdict recorded it may change the verdict, or one juror may defeat it by dissent.53 The verdict should be certain and complete and responsive to the issues,54 but merely technical errors will not render it bad if upon a reasonable construction what is intended can be clearly seen.55 However, if an essential element is omitted the verdict is bad; as where the statute requires the jury to find the degree of the crime and

444 Bl. Comm. 361; Co. Litt. 228.

45 Commonwealth v. Chathams, 50 Pa. St. 181, 88 Am. Dec. 539.

46 Blackshare v. State, 94 Ark. 548, 128 S. W. 549, 140 Am. St. 144. 47 State v. Mills, 19 Ark. 476. See also § 923, supra.

48 Lord v. State, 16 N. H. 325. 49 Morton v. State, 3 Tex. App. 510.

50 Patterson v. State, 122 Ga. 587, 50 S. E. 489; Commonwealth v. Gibson, 2 Va. Cas. 70.