So is usually a comment by the District Attorney upon the failure of the accused to testify.11 Where, however, the accused takes the stand, the counsel for the Government has the right to comment upon his silence concerning any point 12 although such point is not connected with the matters as to which he testified.13 When the defendant has not taken the stand, a statement that the evidence on behalf of the prosecution has not been contradicted is permissible.14 The counsel for the Government has no right to state his opinion of the guilt of the accused and it has been held that a new trial may be granted because of such a statement.15 316. See Bombarger v. U. S., C. C. A., 219 Fed. 843. 11 Wilson v. U. S., 149 U. S. 60, 13 Sup. Ct. 765, 37 L. ed. 650. There, however, the court failed to prohibit any further reference to the matter and failed to instruct the jury to ignore it. 12 Diggs v. U. S., 242 U. S. 470; affirming C. C. A., 220 Fed. 545. 13 Ibid. Contra, Myrick v. U. S., C. C. A., 219 Fed. 1. 14 Carlisle v. U. S., C. C. A., 194 Fed. 827; Rose v. U. S., C. C. A., 227 Fed. 357, 363; Bradley v. U. S., C. C. A., 254 Fed. 289. 15 Morse v. U. S., C. C. A., 255 Fed. 681; State v. Gunderson (North Dakota, Nov., 1913), 144 N. W. 659; People v. Romero, 143 Cal. 560, 77 Pac. 163; People v. Weber (Cal. June, 1906), 86 Pac. 671. See 75 Fed. 588, 592. "Such prosecuting officer has the indisputable right to urge that the evidence convinces his mind of the accused's guilt." See Warthan v. State, 41 Tex. Crim. App. 385, 55 S. W. 55. In Judge Sharswood's Professional Ethics: "Indeed, the occasions are very rare in which he ought to throw the weight of his own private opinion into the scales in favor of the suit he has espoused. If that opinion has been formed on the statement of facts not in evidence, it ought not to be heard-it would be illegal and improper in the tribunal to allow any force whatever to it; if on the evidence only, it is enough to show from that the legal and moral grounds on which such opinion rests.'' Senator George F. Hoar in an article on Oratory in Scribner's Magazine for June, 1901, said: "The question in the American or English court is not whether the accused be guilty. It is whether he be shown to be guilty, by legal proof, of an offense legally set forth. It is the duty of the advocate to perform his office in the mode best calculated to cause all such considerations to make their due impression. It is not his duty or his right to express or convey his individual opinion. On him the responsibility of the decision does not rest. He not only has no right to accompany the statement of his argument with any assertion as to his individual belief, but I think the most experienced observers will agree that such ex Counsel have no right to address to the jury arguments upon questions of law.16 If the summing up is made after the court has announced its rulings upon the questions of law involved, counsel are confined to a discussion of the facts and the application of the instructions to the evidence; 17 but they may elaborate and emphasize the law as laid down by the trial judge.18 The extent to which they may go in this respect is within the judge's discretion. He cannot however prevent any discussion of any important question.19 He may not prevent the defendant's counsel from elaborating and emphasizing the proposition that the jury is not bound by the judge's opinion on the fact, and that it is their duty to come to their own conclusion on the question of guilt or innocence, giving to the opinion of the judge no more weight than they think fit.20 § 527b. Charges in criminal cases. The charge to the jury should be oral1 and delivered in open court.2 It should be delivered to the jury as a body, and not addressed to each juror individually. The court may in its discretion permit written instructions to be taken by the jury to read during their retirement. This is not unusual when answers are given to requests by the jury for further instructions after their retirement. The State practice concerning the form of instructions and otherwise. regulating the charge is not followed.5 The judge may express to the jury his opinion upon the facts; 6 pressions, if habitual, tend to diminish and not to increase the just influence of the lawyer. There never was a weightier advocate before New England juries than Daniel Webster. Yet it is on record that he always carefully abstained from any positiveness of assertion. He introduced his weightiest arguments with such phrases as 'It will be for the jury to consider,' 'The court will judge.' 'It may, perhaps, be worth thinking of, gentlemen,' or some equivalent phrase by which he kept scrupulausly off the ground which belonged to the tribunal he was addressing." 16 Morse v. U. S., C. C. A., 255 Fed. 681, 682. Fed. Prac. Vol. III-41 17 Ibid. 18 Ibid. 19 Ibid. 20 Ibid. $ 527b. 1 See Winters v. U. S., C. C. A., 201 Fed. 845, 850. 2 Dodge v. U. S., C. C. A., 258 Fed. 300. 3 Shepard v. U. S., C. C. A., 160 Fed. 584, 595. 4 Garst v. U. S., C. C. A., 180 Fed. 339, 345. 5 Steers v. U. S., C. C. A., 192 Fed. 1; supra, § 473c. 6 Keller v. U. S., C. C. A., 168 Fed. 697; Fielder v. U. S., C. C. A., 7 but it is the better practice for him not to do so until after the counsel have summed up; and never, it has been held, after the jury have reported their inability to agree. He must, how 227 Fed. 832; Morse v. U. S., C. C. A., 255 Fed. 681. See supra, § 473c. In Horning v. District of Columbia, Sup. Ct. of U. S., Nov. 22, 1920, decided by a court divided five to four. It was held that an instruction by the trial justice that the jury could not capriciously say that the testimony was not true; that it was their duty to accept the trial judge's exposition of the law; that the trial judge could not peremptorily instruct them to find the defendant guilty, but that he would if he could, and that the failure to bring in a verdict of guilt would arise only from a flagrant disregard both of the evidence and the law, and also their obligations as jurors, was only a formal error and was not reversible error under the Judicial Code, § 269, as amended by the Act of February 26, 1919. 7 U. S. v. Foster, 183 Fed. 626; reversed upon another point, C. C. A., 188 Fed. 305. Garst v. U. S., C. C. A., 180 Fed. 339, 346; Foster v. U. S., C. C. A., 188 Fed. 305; reversing 183 Fed. 626; U. S. v. Reid, 210 Fed. 486; Shepard v. U. S., C. C. A., 236 Fed. 73; Bernal v. U. S., C. C. A., 241 Fed. 339. The following supplemental charges have been held not to be reversible errors; Suslak v. U. S., C. C. A., 213 Fed. 913, 919: "This is an important case; this is a costly case, both to the government and to the defendants; I realize that this is a strain upon all; but the jury must remember that witnesses of the character which have been introduced by the govern ment in this case are likely to disappear and could not be had in another trial, and the jury must therefore attempt to agree; they must attempt to agree upon honest convictions. The jurors have a power under the law to stand out for acquittal or conviction, but no juror should take an arbitrary stand to acquit or conviet a man; he may listen to the arguments of the other jurors, and he must listen and come to an understanding, if he can, and be convinced by their argument; it is wrong to convict as well as to acquit a man upon an arbitrary stand taken by a juror; they must not consider the penalty in the case what In Peterson v. U. S., C. C. A., 920, 924: "The court at this time declines to receive a verdict as to one defendant. The case should be finally disposed of as to all. This is, as you know, the second trial. To try it again means to try it before a jury drawn from the same community that you have been, and with no reason to believe that they would be any more intelligent or honest, than you are or any more likely to arrive at a verdict. Justice to both parties demands that the case be brought to an end. The expense of these trials is very great; possibly the expense of the parties so far incurred is from $7,000 to $10,000. The government has a right to a verdict without farther expenditure of time and money. The defendants, if guilty, have a right to have that fact determined by a verdict before they are bankrupt in pocket, and ever, instruct the jury that the facts are to be decided by them,9 likewise if they are innocent they have the right to be acquitted before their means are exhausted. You state, in answer to the court's question, that you stand seven to five. If seven are for acquittal, the five should seriously inquire whether there is not a reasonable doubt of the guilt of the defendants when seven of their fellows of equal intelligence and honesty have found that there is; if seven are for a conviction, the five should equally seriously inquire whether there is a reasonable doubt of the guilt of the defendants when seven of their fellows of equal intelligence and honesty find there is no doubt. After three days spent in the trial of this case, with no reason to believe that it can be any better tried before another jury, the court is disposed to direct you to further consider the case, believing that you can honestly come to an agreement.' In Shea v. U. S., C. C. A., 260 Fed. 807, 808: "You have now been out about 30 hours on this case, and while I have no doubt that any differences between you are honest and sincere, I want to call your attention to the fact that in no case can absolute certainty be expected. . . . If a large number or majority are of a certain opinion, the juror dissenting should carefully consider whether his doubt or difference from such opinion is a reasonable one, which makes no impression upon the minds of so many men equally honest and equally intelligent as himself. Upon the question of the expense in the trial of this case, I deem it proper to call your attention to the fact that this case has involved a very great ex pense upon the government. A large number of witnesses have been called from their homes and business important to themselves already for a considerable time; that they reside at Cordova, and a steamer is expected to pass through Valdez en route to Cordova within the next 12 hours, and there will probably not be another for a week or more; also, in connection with the matter of expense, I call your attention to the difficulty of getting qualified jurors in a case of this kind, in so small a community, after so many have been disqualified, having already been called and excused on this case. We all desire to see justice administered, honestly, and fairly. At the same time, Justice to both the government and defendant requires that it be not attended with too great outlay or expense. The defendant has already been in custody over six months, and is entitled to have the case speedily determined. I call these facts to your attention as matters for your careful and honest consideration; but I wish to impress upon you, that nothing I have said should be understood as seeking to influence the conscientions and honest opinion which you, as reasonable men, may entertain. If you have a reasonable doubt of the defendant's guilt, as the same is defined to you in instructions already given, you should acquit the defendant; if you have not, you should convict him, and the degree of the crime is a matter which should not cause you to entirely disagree and fail to reach a proper verdict." See U. S. v. Oppenheimer, 228 Fed. 220. Supra, § 473c. 9 Keller v. U. S., C. C. A., 168 Fed. 697. and a judgment may be reversed when his language was so positive and emphatic as to tend to intimidate the jury, 10 or when he so colors his charge as unfairly to influence the verdict in favor of the prosecution.1 11 He should not charge that the evidence of Indian witnesses 10 Rudd v. U. S., C. C. A., 173 Fed. 912. See Richardson v. U. S., C. C. A., 181 Fed. 1; Foster v. U. S., C. C. A., 188 Fed. 305; Sandals v. U. S., C. C. A., 213 Fed. 569, 571. 11 Hart v. U. S., C. C. A., 240 Fed. 911; Whiting v. U. S., C. C. A., 263 Fed. 477; Stokes v. U. S., C. C. A., 264 Fed. 18; Gross v. U. S., C. C. A., 265 Fed. 606. In Starr v. U. S., 153 U. S. 614, 625, 38 L. ed. 841; the following instructions were disapproved: "How unjust, how cruel, what a mockery, what a sham, what a bloody crime it would be on the part of this government to send a man out into that Golgotha to officers, and command them in the solemn name of the President of the United States to execute these processes, and say to them, Men may defy you; men may arm themselves and hold you at bay; they may obstruct your process; they may intimidate your execution of it; they may hinder you in making the arrest; they may delay you by doing it by threats of armed violence upon you, and yet I am unable as chief executive of this government to assure you that you have any protection whatever.'' "What was this posse to do? What was he commanded to do? To go into the Indian country and hunt up Mr. Starr, and say to him that on a certain day the judge of the Federal court at Fort Smith will want your attendance at a little trial down there wherein you are charged with horse stealing, and you will be kind enough, sir, to put in your attendance on that day; and the judge sends his compliments to you, Mr. Starr. Is that his mission? Is that the message from this court that is to be handed to Mr. Starr upon a silver platter with all the formalities of polite society? Is that what Floyd Wilson was employed or engaged to do? No. This court did not have anything to do with that command; it does not go in the name of this court; it goes in the name of the chief executive officer, the President of the United States. What does he say, of course acting for the people?" "Without these of ficers what is the use of this court? It takes men who are brave to uphold the law here. I say, because of this, and because there is no protection unless the law is upheld by men of this kind, if it be true that you are satisfied of the fact beyond a reasonable doubt that Floyd Wilson was a man of this kind, that he was properly in the execution of the high duty devolving upon him, and while so properly executing it by the light of these principles of the law I have given you, his life was taken by the defendant, your solemn duty would be to say that he is guilty of the crime of murder, because if the law has been violated it is to he vindicated; you are to stand by the nation; you are to say to all the people that no man can trample upon the law wickedly, violently, and ruthlessly; that it must be upheld if it has been violated." |