Irving v. People

Mr. Justice Goddard delivered the opinion of the court: We learn from, the briefs of counsel that the plaintiff in error was tried and convicted under section 1211, Mills’ Ann. Stats. The abstract does not contain a copy of the information, the sentence imposed, nor any of the evidence offered or introduced upon the trial. Error is assigned upon the overruling of a motion to quash the information. The record does not contain the motion to quash, or the ruling of the court thereon. We are, therefore, unable to consider this" objection; nor can we consider the errors assigned upon the giving and refusing of instructions, since none of the evidence is before us to which the same were applied. Those given seem to correctly announce abstract propositions of law, and we must presume that they were properly applied to the evidence introduced; those refused may or may not express the law applicable to the facts proven. This we cannot determine in the absence of such facts. [262] The only questions presented that we can consider are: 1. "Whether the court committed a reversible error in orally stating to the jury that the district attorney, having elected to stand upon the first of the two acts testified to by the prosecuting witness, and cautioning therü. that the evidence as to the second act could not be considered for the purpose of establishing a distinct offense, but solely for the purpose of corroboration or explanation of the testimony given by the prosecuting witness in regard to the first act, and in stating to them that the defendant could be found guilty, if at all, only of the first offense charged. Counsel for plaintiff in error excepted to this statement upon the ground that it constituted an oral instruction and was in violation of section 1468a, 3 Mills’. (Rev.) Stats., which enacts: “The district court, in all cases, both civil and • criminal, shall only instruct the petit jury as to the law of the case; and such instructions shall be reduced to writing, * * * and he shall in no case, after instructions are given, orally qualify, modify, or in any manner explain the same to the jury;' Provided, That upon request of both parties such instructions may be given orally; but in such case, if either party except to such instructions, the same and every part thereof shall immediately be reduced to writing.” We think this objection is, under the circumstances, untenable for two reasons: (1) The oral remarks complained of were made in pursuance of a request of the district attorney to caution the jury as to the purpose for which the evidence relating to the second act was admissible, and do' not, in our opinion, constitute an instruction within the contemplation of the statute, but was merely an oral direc [263] tion during the progress of the trial which in no way modified or qnalified any instrnction theretofore given; (2) If the statement conld be considered as an instruction as to the law, it being in favor of the plaintiff in error, giving it orally was at most an error without prejudice, and one that does not constitute a ground for reversal. 2. The error assigned upon the remarks of the district attorney in his closing argument presents a more serious question, and while we think such remarks were improper in so far as they reflected upon the defendant’s character, in regard to which no testimony, as we are informed by eofmsel, was introduced, and in face of the instruction given that, “The law presumes that a person has a good character and reputation until the contrary is shown, and the jury have no right to consider the omission on the part qf the defendant to introduce evidence of a good character as a circumstance against him or as tending to show his guilt in this case,” the only justification claimed 'for making such remarks was the statement theretofore made by counsel for defendant in his argument to the jury, to wit: “That the prosecution had raked hell with a fine-tooth comb to find something against the defendant, and if they could háve found anything against him they would have shown it.” . The remarks complained of were in reply to this statement of counsel for defendant, and were to the effect that counsel for defendant, while having the right to do so, did not dare to put decent, reputable witnesses on the stand, who had known defendant, to show that he had any character or reputation in the community. While it is the law that a prisoner’s character cannot be inquired into or commented upon by the prosecuting attorney until he himself has sought to [264] establish his good character, yet if his counsel goes outside of the record and comments upon his character, and especially when, as in this case, he criticises the prosecution "for omitting to produce evidence which it had no right to produce, and charges that it was unable, with all its diligence, to show anything against defendant’s character; in view of this statement and the inference that it was intended the jury should draw therefrom, we think the district attorney did not commit a reversible error in replying that it was within the province of the defense only to introduce that character of evidence and that not having done so it did not dare to do so. While, even under these circumstances, the conduct of the prosecuting attorney is not wholly excusable, yet in the light of the provocation given therefor we do not think it constitutes an error which the defendant, under the circumstances, can avail himself of. Upon the record before us there is no question presented that would justify a reversal of the judgment of the court below. It is, therefore, affirmed. Affirmed. Chief Justice Steele and Mr. Justice Bailey concur. _