State v. . Sykes

*620 Reads, J. In all criminal prosecutions every man has the right * * * to have counsel for his defence. Const. Art. I. § 11. Every person accused of any crime whatever shall be entitled to counsel in all matters which may be necessary for his defence. Bat. Rev. ch. 33, § 59. And in jury trials they (counsel) may argue to the jury the wh'ole case as well of law as of fact. Rev. Code, ch. 31, § 15. This applies to civil as well as criminal causes. These constitutional and statutory provisions give to parties and to counsel useful rights and ample powers which may not be denied or abridged. It is easy to see that they may be abused by counsel, in which ease they may be controlled or punished by the Court, but while within bounds-they must be protected. When counsel is arguing the facts to the jury he must be permitted to argue as he understands them, subject of course to be controlled for gross misrepresentation or perversion ; when therefore the defendant’s counsel and the Solicitor differed honestly, as we are to suppose, as to the testimony of a witness and His Honor said that neither was right and that he would state it to the jury in such way as that.it would be moral perjury in them to accept the statement of the defendant’s counsel as the correct one, this remark of His Honor was so disparaging to the counsel that it was well calculated to impair his efficiency. It was the same as-to tell the jury that the statement of the defendant’s counsel was so manifestly false that there could be no mistake about it;' and that if they acted upon it as true, they would be-guilty of moral perjury. If the jury could not accept the statement without corruption, no more could the counsel make it fairly; and an unfair dealing with the testimony necessarily destroys the counsel’s weight with the jury. The record shows nothing to justify this severity towards the counsel. When the counsel on both sides differed as to the- *621 testimony and His Honor said that neither was right, the' ■counsel for the defendant said that was a question for the jury. This was clearly right, and His Honor admitted if to be right. There was nothing therefore in the remark itself to provoke severity or even reproof; and yet it may be that there was something in the manner that was rude, but it is not said to be so in the record. The record does say that “the defendant’s counsel replied immediately in a positive manner that that was a question for the jury.” That •“ positive manner ” may have meant a great deal, but nothing more is stated. There is another light in which His Honor’s remark was equally objectionable. A Judge has no right to state the testimony of a witness to the jury and say, if you do not accept my statement, or if you accept some other statement, you will be guilty of moral perjury. It is his duty to recapitulate the testimony to the jury and to explain its bearing to aid their memories and understanding and to instruct them as to the law, but what the testimony is as well as its loeight and influence are questions for the jury. What His Honor said was calculated to intimidate the jury and to prevent a free verdict. It is true that His Honor told the jury that it was for them to determine what the testimony of the witness was, but at the same time he told them substantially that if they did not accept it as he stated it to be, that they would be guilty ■of moral perjury. We are of the opinion that His Honor abridged the rights •of counsel and impaired his efficiency, and that he also invaded the province of the jury. These errors were calculated to prejudice the defendant’s case, and therefore there must be a venire de novo. Error. Venire de novo.