rule the interference of the court with counsel, when opening a case to a jury, is a matter of discretion, the exercise of which is not the subject of exception. Walsh v. People, 88 N. Y. 458. 133. Duty of the Respective Counsel in Closing the Case. The presiding judge should rigidly insist that the respective attorneys in a criminal case, should confine themselves to the facts developed by the evidence in summing up the case to the jury. Where, however, either side, through inadvertence, has alluded to an alleged state of facts not warranted by the evidence, it is proper to allow some reply-the extent of the explanation is largely within the discretion of the court. People v. Mitchell, 62 Cal. 411; Cross v. State, 68 Ala. 476; Ferguson v. State, 49 Ind. 33; Greene v. State, 17 Tex. App. 395; Reeves v. State, 84 Ind. 116. A frequent illustration of the principles suggested in the foregoing text is the comment as to the failure of either side to place a person on the stand who has been regularly subpoenaed. This practice stands condemned; and the court should promptly suppress the least allusion to it. State v. Jones, 77 N. C. 520. In Blackman v. State, 78 Ga. 596, the accused answering to an indictment for murder, before the impanelling of the jury made a motion for a postponement of the case on the ground of material testimony not then available. The parties were subpœnæd; but during the progress of the trial they were not examined. The prosecuting attorney in summing up the case to the jury commenting upon this fact began a sentence which the court promptly suppressed. On review, the appellate court reversed the judg ment, holding that the trial court should not only have arrested the remark, but should have expressly instructed the jury to disregard it. The following suggestive language will the better indicate the juridicial view. "This defendant had made a motion to continue this case for the absence of certain witnesses, by whom he expected to prove that he was not near the scene of the homicide at the time it took place. These persons appeared, but he failed to introduce them. This motion was made before the jury was empanelled, and was probably made in writing, or, if made orally, there was no evidence of it before that jury; and it was certainly a very damaging circumstance to allow counsel to proceed and argue the guilt of the prisoner from his failure to produce these witnesses; and when the court's attention was called to this subject, he should have promptly reproved the proceeding and admonished the jury that it was improper, and that they should give it no attention; but this he seems to have declined. Unless this was a case of circumstantial evidence so strong as to imperatively demand the finding the jury made, we can easily see how injury, and great injury, might have resulted to this defendant from such a course of proceeding. The defendant may be guilty, and may have been proven to be guilty, but his guilt could be established only by legal testimony properly introduced to the jury by witnesses with whom he was entitled to be confronted. Has the defendant had a fair trial with none but legal testimony before the jury? We think not; we cannot undertake to say what influence the circumstances improperly insisted upon in the argument may have had upon the jury; and a new trial is therefore granted." Misstatements of the testimony in summing up, do not of themselves constitute error especially if promptly corrected by the court; nor do illogical inferences from the facts in evidence. Abbott, Trial Brief, § 713, citing People v. Barnhart 59 Cal. 381, 402; Shular v. State, 105 Ind. 289, 55 Am. Rep. 211. Nor is an erroneous statement of the evidence made by counsel to the jury, such error as will warrant the granting of a new trial. It would be strange if it was. It often occurs that counsel do not agree as to what the testimony is. Indeed, it rarely happens that they do. It is for the jury to determine that question. People v. Barnhart, supra. The over nourished zeal of counsel displayed in attempts to secure conviction for crime, frequently calls for condemnation on the part of the appellate court, especially when in the closing argument to the jury the attorney for the state travels outside the evidence for his facts or indulges in truculent abuse of the accused. A suggestive illustration of this error is afforded in a case reported in Colorado in 1885. The defendant had appealed, alleging as reversible error comments by the state's attorney entirely unwarranted by the evidence, and this despite the admonition of the presiding judge. To such an extent had this error prevaded the record that the Attorney General, Hon. Theodore H. Thomas, refused to present the case and suggested that the court should set aside the verdict, which was accordingly done. Smith v. People, 8 Colo. 457. In the course of an opinion delivered by the supreme court of California in a very remarkable criminal case, this paragraph occurs which will be found apt in this connection. The conduct of the assistant district attorney in proposing to read to the jury, during his argument, a paper which had not been introduced in evidence, and in asserting that it contained the record of defendant from the chief of police of Chicago, was inexcusable and reprehensible. We think, however, that, so far as the defendant's interests were concerned, no prejudice resulted from his violation of professional duty, for it was promptly rebuked by the court at the time, and the following instruction was thereafter given: "In weighing the evidence in this case, it is important that you should bear constantly in mind that statements of fact made by counsel, whether in examination of witnesses or in argument of the facts so stated, are not in proof, are not in evidence, and are to be discarded from your consideration." People v. Bowers, 79 Cal. 415. § 134. Arguing from Facts not in Evidence. The paragraph last cited sufficiently indicates that it is error to allow the prosecuting attorney, against defendant's objections, to argue from facts not in evidence. But if defendant's counsel has, in summing up, commented on such facts, the court may permit a reply of like character. Abbott, Trial Brief, § 707, citing People v. Mitchell, 62 Cal. 411; Cross v. State, 68 Ala. 476; Ferguson v. State, 49 Ind. 33; Greene v. State, 17 Tex. App. 395; Reeves v. State, 84 Ind. 116; People v. Bush, 68 Cal. 623; State v. Leabo,89 Mo. 247. With these exceptions the authorities converge upon the proposition that counsel in their arguments to the jury are bound to keep within the limits of fair and temperate discussion. The range of that discussion is circumscribed by the evidence in the case; any violation of this rule entitles the adverse party to an exception which is as potent to upset a verdict as any other error committed during the trial. State v. Hannett, 54 Vt. 83; Garlitz v. State, 71 Md. 293. It would be strange, indeed, if counsel could make any sort of reckless assertion as to the law applicable to a case on trial, while arguing a question of evidence to the judge, and the latter was without authority to give expression to his full and emphatic dissent from the unwarrantable contention of counsel. This is certainly the right of a judge, and it may often be his imperative duty to exercise that right in a very positive and emphatic manGarlitz v. State, supra. ner. CHAPTER XXIII. CHARGING THE JURY ON THE EVIDENCE. § 135. Extreme Importance of the Subject. 139. Instances of Fatal Error. 140. Instructions Must be Regarded in their Entirety. is Conflict. 142. Instructions are Advisory in their Nature. 143. Parties may Submit Requests to Charge. 144. Instances of Harmless Error. 145. The Conclusion Reached as to Instructions. § 135. Extreme Importance of the Subject.-One of the most delicate functions pertaining to the judicial state, is exercised by the presiding judge in charging the jury on the evidence. A question of great importance is always presented where improper evidence has been admitted and the judge seeking to neutralize its effect, instructs the jury to disregard it. Instructions of this character are usually held to cure the defeat, unless it should clearly appear that the evidence erroneously admitted was of a seriously prejudicial character. In some jurisdictions it should be observed the judges are prohibited by the organic law from charging the jury with respect to matters of fact, and are confined to the testimony elicited in the case, and a statement of the law pertinent to the issue. The constitutions of Tennessee, California and Nevada have this effect. North Carolina, Georgia and Alabama have express legislation on this subject, but none of their provisions preclude the right to charge in respect to facts the counsel have alluded to in their opening address to the jury, but in support of which they have failed to produce evidence. It is equally pertinent for the court to admonish the jury as to the dangers of circumstantial evidence, and to explain the status of negative testimony. So, the court may, within certain limitations, advise the jury as to the credibility of certain witnesses, taking care not to infringe upon the functions of the jury in estimating the degree of credit to be accorded to the testimony. He may inform the jury of their right to consider the general environment of the witness, his age, degree of intelligence, relationship to the party, apparent bias, or interest in the case. In short the charge should be strictly confined to the evidentiary matters as are fairly within the compass of the case. For a further exposition of this subject, the practitioner is referred to appropriate works on trial practice. The frequency with which criminal convictions are reversed, owing to the evidence of some error in the judge's charge to the jury will abundantly excuse a somewhat protracted consideration of this branch of our subject. Great difficulty has arisen in many jurisdictions because of a slavish adherence to a formula given in section 200 of volume 1 of Greenleaf on Evidence. This instruction has been repeatedly condemned and condemned with emphasis. The Indiana supreme court, in Finch v. Bergins, 89 Ind. 360, reversed a judgment because the court below had given an instruction adopting the very words of Greenleaf in the sec_ tion above mentioned. And Howk, J., in delivering the opinion of the court, said: "Of this section of Greenleaf's text, in a similar instruction in Davis v. Hardy, 76 Ind. 272, this court said: 'To give it in a charge, as written, would, in this state, be an invasion of the jury's exclusive right to judge of the credibility and weight of evidence. It is proper matter of argument that such evidence is subject to imperfection and discredit, for the reasons suggested, and the court may direct the jury's attention to the subject. But it is not for the court to say, as matter of law, in reference to the evidence of this kind, given in a particular case, that it is subject to much imperfection, or that "it frequently happens that the witness, by unintentionally altering a few expressions really used gives an effect to the statement completely at variance with what the party did say; or that, where the admission is deliberately made and precisely identified, the evidence is often of the most satisfactory nature.' These are matters of fact, experience and argument, but not otherwise the subject of legal cognizance."" So, in Garfield v. State, 74 Ind. 60, in commenting on an instruction transcribed, like the one above quoted, from 1 Green |