that they were taken to a certain room by the officers and the member of the court, the jury were informed that that room was the place where the affray happened. Now, in the first place, this was unsworn evidence. No one stated to them under oath that that was the place of the affray. If on a trial any articles are to be exhibited to the jury, as, for instance, the clothes of a murdered man, the pistol of the murderer, and the like, before they can be given in evidence proof must be given in respect to them. Some one must, on oath, identify them as being what they are alleged to be. But there was no identification of the room shown to the jury. Did anyone testify before the jury, 'This is the saloon?" If so, then that evidence was given in defendant's absence; if not, then the room was shown without identification by sworn testimony. But, in the next place, the defendant had has no opportunity of denying that the room shown was that saloon. What knowledge has he as to the place to which the jury were taken? They may have been taken to another room distant from the place of the affray. He has no means of knowing where they went.

"Suppose it were in dispute whether the affray occurred in one room or in another of a house. Can it be permitted that the jury shall be shown by two officers and one member of the court, in the defendant's absence, such room as they may think best to exhibit, and that the defendant shall thus be kept in ignorance what room was so exhibited? For, unless the defendant is present, he cannot know what room was exhibited. Could the alleged clothes of a murdered man, or the alleged pistol of the murderer, be exhibited to a jury at some place outside of the court room and in the absence of the defendant? If the defendant had been present, he might have denied that the room exhibited was the place of the affray. He might have called witnesses to show this. But, as it is, he cannot, because he does not know what room was exhibited. True the judge who accompanied them said, on his return, that they had been taken to the saloon of Hallenbeck Brothers. But how did the defendant know what place the judge and the two officers believed to be that saloon?"

So it has been held no error for the jury to make a view of the place where a felony is claimed to have been committed, under the order of the court and in charge of the sheriff, where the privilege is awarded the accused to accompany the jury, though he may refuse to attend the view. Blythe v. State, 47 Ohio St. 234.

§ 130. Vigorous Opposition to the Views last Cited. The elucidations of the Palmer case will favorably impress the practitioner with the entire equity of the practice outlined, and it is certainly matter of surprise to find that the conclusions stated are under the judicial displeasure of several courts of high repute— notably that of Indiana. Judge Elliott in Shular v. State, 105 Ind. 294, 55 Am. Rep. 211, says: "It cannot be seriously doubted that evidence can only be delivered to a jury in a criminal case in open court, and, unless there is a judge, or judges, present, there can be no court. The statute does not intend that the judge shall accompany the jury on a tour of inspection; this is so obvious that discussion could not make it more plain. The jury are not, the statute commands, to be spoken to by any one save by the officer and the person appointed by the court, and they are forbidden to talk upon the subject of the trial. It is the duty of the jurors to view the premises, not to receive evidence, and nothing could be done by the defendant, or by his counsel, if they were present, so that their presence could not benefit him in any way, nor their absence prejudice him. The statute expressly provides who shall accompany the jury, and this express provision implies that all others shall be excluded from that right or privilege. It is quite clear from these considerations, that the statute does not intend that the defendant or the judge shall accompany the jury, and it is equally clear that the view obtained by the jury is not to be deemed evidence.

"Turning to the authorities we shall find our conclusion well supported. The statute of Kansas is substantially the same as ours, except that it does not require the consent of all the parties, and in a strongly reasoned case it was held that it was not error to send the jury, unaccompanied by the defendant, to view the premises where a burglary had been committed. Brewer, J., by whom the opinion of the court was prepared, said, in speaking of the statute: 'Nothing is said in it about the presence of the defendant, the attorneys, the officers of the court, or the judge. On the contrary, the language seems to imply that only the jury and officer in charge are to be present. The trial is not temporarily transferred from the court-house to the place of view. They are 'to be conducted in a body' 'while thus absent.' This means that the place of trial is unchanged, and that the jury, and the jury only, are temporarily removed therefrom. Just as when

the case is finally submitted to the jury, and they retire for deliberation, there is simply a temporary removal of the jury. The place of trial is unchanged. And whether the jury retire to the next room, or are taken to a building many blocks away, the effect is the same. In contemplation of law the place of trial is not changed. The judge, the clerk, the officers, the records, the parties, and all that go to make up the organization of the court remain in the court room.' State v. Adams, 20 Kan. 311.

"The keenest scrutiny will disclose no infirmity in this reasoning, and it is in close agreement with that of our own court. In Jeffersonville, M. & I. R. Co. v. Bowen, 40 Ind. 545, this court overruled the case of Evansville & C. S. L. R. Co. v. Cochran, 10 Ind. 560, and adopted the views of the supreme court of Iowa, expressed in Close v. Samm, 27 Iowa, 503. That court, in speaking of a statute similar to ours, said: 'It seems to us that it was to enable the jury, by the view of the premises or place, to better understand and comprehend the testimony of the witnesses respecting the same, and thereby the more intelligently to apply the testimony to the issues on trial before them, and not to make them silent witnesses in the case, burdened with testimony unknown to both parties, and in respect to which no opportunity for cross-examination or correction of error, if any, could be afforded either party.' The doctrine of Close v. Samm, supra, was again expressly approved in Heady v. Vevay, M. S. & V. Transp. Co. 52 Ind. 117, and it was said: 'It results that the impression made upon the minds of the jurors does not constitute a part of the evidence in the cause.' The case of Jeffersonville, M. & I. R. Co. v. Bowen, supra, was approved in Gagg v. Vetter, 41 Ind. 228, 13 Am. Rep. 322, and in Indianapolis v. Scott, 72 Ind. 196. In the case last cited it was said: 'Perhaps, strictly speaking, the jury had no right to do anything more than to view the premises, thereby to enable them the better to apply the evidence given upon the trial.'"

The jury are simply to gain assistance in applying the evidence, and not to find new evidence, by viewing the premises, and the rule best supported by reason, therefore, if not by the weight of authority, would seem to be that the presence of the accused is not necessary upon such an occasion. Shular v. State, 105 Ind. 290, 55 Am. Rep. 211.

Against the authority of this case must be set the opinion of Judge Barrett previously noticed.

CHAPTER XXII.

OPENING AND CLOSING THE CASE.

§ 131. Object of.

132. Extent to which Counsel may go in Opening.

133. Duty of the Respective Counsel in Closing the Case. 134. Arguing from Facts not in Evidence.

§ 131. Object of.—The object of an opening of a case to the jury is to state, briefly, the nature of the action, the substance of the pleadings, the points in issue, the facts and circumstances of the case, and the substance of the evidence to be adduced in its support. The counsel for the plaintiff, in opening, may also state the nature of the defense, if it appears upon the record. But further than this, he ought not to go, it seems. Each party should be confined to a legitimate and proper opening of his own case; the plaintiff's counsel to a statement of his cause of action, and the defendant's counsel to a statement of his answer to the plaintiff's case, and the evidence he proposes to give to sustain it; and in such opening should not comment, in the way of summing up, after the English manner, upon the plaintiff's evidence, any further than is essential to a proper understanding by the jury of the defendant's evidence. Ayrault v. Chamberlain, 33 Barb. 229.

§ 132. Extent to which Counsel may go in Opening.—The extent to which counsel may go, in opening a case to a jury, cannot, in the nature of things, be regulated by precise rule. The court may doubtless interfere in the interest of justice to restrain undue license on the part of counsel in addressing the jury. It might perhaps be its legal duty to interfere, in a criminal case, where a prosecuting officer, under the guise of opening the case to the jury, should seek to prejudice them by the recital of facts proposed to be proved, which would be manifestly incompetent, if offered in evidence. See State v. Bateman, 52 Iowa, 604; State v. Meshek, 61 Iowa, 316; State v. Honig, 78 Mo. 249; Morales v. State, 1 Tex. App. 494, 28 Am. Rep. 419; People v. Kelley, 94 N. Y. 526; Kizer v. State, 12 Lea, 564; State v. Hoyt, 47

Conn. 518, 36 Am. Rep. 89; State v. Collins, 70 N. C. 241, 16 Am. Rep. 771.

In Scripps v. Reilly, 38 Mich. 10, the opinion of Mr. Justice Graves ventilates the subject under review in the following language: "There is no doubt of the right of this court to revise in such a case as this. If the trial court may pursue any course it pleases in relation to the opening statement, if it may act independently of all control, then the idea of a rule to be prescribed by this court, under the constitution and legislative enactment, for its guidance and government, is preposterous and absurd. But the point is too plain for argument. This court will not revise such matters unless there is plain evidence of action amounting to what is called an abuse of discretion, and calculated to injuriously affect the legal rights of a party; and where such is the case, whether the result of accident, or inadvertence, or misconception, it will take cognizance. The error in this case was not cured, and is one subject to review, and is sufficient to require a reversal." Since the decision of the case of Scripps v. Reilly, supra, an impression seems to have prevailed that the opening statements of counsel might be challenged step by step, and questions of relevancy and materiality of evidence raised and considered, and even argued at length, on counsel stating what he proposed to prove. Under this impression the practice of interrupting counsel, and demanding the judgment of the court on the competency of what he proposed to show, has in some cases been carried to extraordinary lengths, and elaborate arguments had been indulged in over the question whether counsel should be suffered to make certain statements of proposed evidence to the jury. Any such practice is a great abuse, and in a desperate criminal case might be resorted to for the purpose of defeating the ends of justice, by breaking the force of a connected statement of the case to the jury, and by prolonging the trial until the trouble and expense should dishearten the authorities, and result in a relaxation of effort for conviction. The cases must be rare in which counsel would be justified in interrupting the opening of his antagonist to raise questions of competency; and when he does so, the questions ought to be disposed of summarily, and without argument. A very clear case of abuse however would justify the court in interrupting and restricting the counsel's opening, (Porter v. Throop, 47 Mich. 313; People v. Wilson, 55 Mich. 506) for as a general