(Filed 24 November, 1903.)
1. Arguments of Counsel — Exceptions and Objections — Trial — Appeal.
An exception to the remarks of counsel made during the argument must be taken before verdict.
2. Evidence — Sufficiency of Evidence — Exceptions and Objections — Appeal.
Where there is no exception to the sufficiency of the evidence and the evidence is not set out in the record, the sufficiency thereof will not be considered on appeal.
INDICTMENT against Simon Tyson, heard by Ferguson, J., and a jury, at January Term, 1903, of PITT. From a verdict of guilty and (693) judgment thereon the defendant appealed.
Robert D. Gilmer, Attorney-General, for the State.
Skinner Whedbee for defendant.
MONTGOMERY and DOUGLAS, JJ., dissenting.
The defendant was indicted for burning a tobacco barn and pack-house, and having been convicted, appealed to this Court. The only exception relates to certain remarks of the solicitor in his address to the jury. It was in evidence that the defendant is a colored man and had been a slave of a Mr. Tyson. He was raised on the plantation where the crime was alleged to have been committed and made his home there a greater part of his life. The prosecutor had purchased the plantation and the defendant had been his tenant. The barn which was burned was within forty or fifty yards of the Tyson dwelling, where the prosecutor lived. It was further in evidence that the defendant received a pension as a Union soldier. It is stated in the case that "Counsel for the defendant in addressing the jury spoke at some length and with considerable feeling of the attachment of the defendant to his old master and the members of his family, and pictured with eloquence the sacredness of the surroundings, and argued that the defendant could not and would not in sight of the old dwelling set fire to the barn." The solicitor in reply said: "It did not appear that he (the defendant) was strongly attached to his old master and his family, as it appeared that when the test came he had a gun in his hand ready to shoot down his young master, and is now drawing a pension for it."
No exception was taken to the remarks of the solicitor at the time, nor were they called to the attention of the judge until after verdict.
We think that this exception came too late, even if the language of the solicitor in argument was, under the facts and circumstances of the case, such an abuse of his privilege as to entitle the defendant to a new trial, if exception had been taken at the proper time. The (694) evidence upon which the remarks of the defendant's counsel and the solicitor were based was altogether irrelevant to the issue joined between the State and the defendant, and if it had been objected to in apt time it should, and no doubt would, have been excluded by the court; but it seems that the defendant's counsel first introduced irrelevant testimony for the purpose of using it as a foundation of his appeal to the jury that the defendant's supposed attachment to his former master and to the old homestead would deter him from committing the crime with which he was charged, and without any objection from the defendant the solicitor was permitted to prove that the defendant was drawing a pension as a Union soldier, and to argue from that fact that he had no such attachment, as he had taken up arms against his master and was drawing a pension for it. It appears, therefore, that the discussion of this evidence proceeded with the consent or acquiescence of the defendant, and that what was said by the solicitor was somewhat provoked if not justified by the previous remarks of the defendant's counsel. The remarks on both sides were of such a character that the presiding judge could, with perfect propriety and in the exercise of his discretion, have interfered and stopped the discussion; but the defendant is not in a position to complain of what was done or of what the judge failed to do, as he did not except when he had the right and opportunity to do so, and he did not request the judge in his charge to call the matter to the attention of the jury, so that any injurious impression made upon them by the remarks of the solicitor might be removed.
This Court has many times decided that exception to the (695) remarks of counsel during the argument must be taken before verdict, and we are not disposed to reverse or even to modify this just and salutary rule of practice.
In S. v. Suggs, 89 N.C. 527, Ashe, J., speaking for the Court, says: "The objection to the remarks was not made until the next day after the verdict was rendered, upon a motion for a new trial. It came too late. It was not made in apt time, and for that reason cannot be entertained, as has been frequently decided by this Court. The party complaining of the `abuse of privilege' by the opposing counsel should object at the time the objectionable language is used, so that the court when it comes to charge the jury may correct the error, if one was committed, and put the matter right in the minds of the jury. `A party cannot be allowed thus to speculate upon his chances for a verdict, and then complain because counsel were not arrested in their comments upon the case. Such exceptions, like those to the admission of incompetent evidence, must be made in apt time, or else be lost.'"
In S. v. Brown, 100 N.C. 519, the Court, through Smith, C. J. (referring to remarks of the judge alleged to have been prejudicial to the defendant), said: "It is a sufficient answer to the objection that it was not made until after the rendition of the verdict, and repeated adjudications have settled the rule that such exceptions must be taken in apt time and not after a disappointing issue of the trial."
In S. v. Powell, 106 N.C. 635, the rule is reiterated by the Court in the following language: "The exception to the remarks of the solicitor in his address to the jury is also untenable. The remarks were not objected to, nor was the court requested to give any instruction in regard to them."
In S. v. Lewis, 93 N.C. 582, Ashe, J., for the Court, states the rule in language peculiarly appropriate to this case, as follows: "The defendant can take no advantage from his exception taken to the alleged abuse of privilege in the remarks made by the solicitor in his argument before the jury. For, assuming them to be improper, there is no (696) error to be imputed to the judge in not stopping the solicitor, unless they were objected to or the attention of the judge called to them at the time. This does not appear to have been done in this case, and the objection was lost"; and again, in S. v. Speaks, 94 N.C. 876, he says: "The last exception taken by the prisoner, to the abuse of privilege by the solicitor in his argument to the jury, was only taken after verdict, and it has been repeatedly decided by this Court that such an exception taken after verdict is too late and cannot be sustained."
In Knight v. Houghtaling, 85 N.C. 17, cited and approved in Horah v. Knox, 87 N.C. 487, Ruffin, J., for the Court, says: "It does not appear to us that they (counsel for the plaintiff) either abused the privilege reversed or improperly resorted to any other in connection with the letter in question. But if they had done so we should still be constrained to hold that the plaintiff's objection comes too late."
These extracts from the cases have been made for the purpose of showing that by a long and unbroken line of judicial decisions the rule requiring exception to improper remarks of counsel to be made in apt time, and at least before verdict, has been well established. See, also, S. v. Underwood, 77 N.C. 502; Holly v. Holly, 94 N.C. 99; S. v. Tuton, 131 N.C. 701; Goodman v. Sapp, 102 N.C. 477; Cawfield v. R. R., 111 N.C. 597; Byrd v. Hudson, 113 N.C. 212; Pearson v. Crawford, 116 N.C. 756; S. v. Surles, 117 N.C. 720; S. v. Craine, 120 N.C. 601; Perry v. R. R., 128 N.C. 471. The rule is also clearly recognized in McLamb v. R. R., 122 N.C. 862, and in Hopkins v. Hopkins, 132 N.C. 27.
The defendant's counsel in this Court contended, though, that when the abuse of the solicitor's privilege in debate is gross and manifestly calculated to prejudice the defendant, the judge should interfere and stop counsel and so caution the jury as to prevent any injurious consequences to the defendant, and his failure to do so even (697) without objection by the defendant was error; and for this position he relied on S. v. Smith, 75 N.C. 306, and S. v. Noland, 85 N.C. 576. In S. v. Noland the defendant's counsel did except in apt time, and there was no response from the judge, but the State's counsel was permitted to continue his abuse of the jurors who were then in the box. This Court held that the error of the judge in not interfering instantly in such a case could not be cured in the charge. The judge failed to act when he was called upon to act, and for this reason the case is not in point. It also appears by clear inference from the statement of the facts in S. v. Smith, supra, that exception to the objectionable remarks was taken at the proper time; but if the cases cited by the defendant's counsel sustained his position we could not follow them and disregard, if not overrule, the many and more recent cases by which a different rule is established.
The question now under consideration was before this Court in Perry v. R. R., 128 N.C. 471, in which it appeared that the counsel for the plaintiff, in his address to the jury, related facts within his personal knowledge, of which there was no evidence in the case, and made those facts the basis of an attack upon the defendant's witnesses, in which he strongly insinuated that they had been guilty of perjury. "These facts" (says Douglas, J., speaking for the Court) "were essentially damaging in their nature, and, coming from so high a source, were capable of producing most dangerous prejudice." In passing upon the exception of the defendant to the said remarks of counsel, the question arose whether objection to them had been sufficiently made and in apt time; and in this connection the Court says: "The exception does not appear to have been taken in a very regular manner; but as his Honor has allowed it, evidently for the purpose of giving the defendant the fullest opportunity of appeal, we will examine it in the spirit in which it was (698) allowed." It is to be fairly deduced from Perry v. R. R., 128 N.C. 471, that the Court will not grant a new trial because of abusive language of counsel in argument, even though it can be clearly seen that a party has been prejudiced, unless exception is taken in apt time or at least before the case is given to the jury. There is no more reason for awarding a new trial when counsel indulge in the use of abusive language or improper comments calculated to prejudice one of the parties, unless exception is taken at the proper time, than there would be for permitting a party to except after verdict to evidence which would have been excluded if objection had been made in apt time. Evidence thus admitted, without objection, may be just as damaging to the party in its influence upon the jury as the improper remarks of counsel, and sometimes more so; but no rule is better settled than the one under which an objection to evidence is deemed to be waived if brought forward for the first time after verdict.
We conclude, therefore, that the conduct of a trial in the court below, including the argument of counsel, must be left largely to the control and direction of the presiding judge, who, to be sure, should be careful to see that nothing is said or done which would be calculated unduly to prejudice any party in the prosecution or defense of his case, and when counsel grossly abuse their privilege at any time in the course of the trial the presiding judge should interfere at once, when objection is made at the time, and correct the abuse. If no objection is made, while it is still proper for the judge to interfere in order to preserve the due and orderly administration of justice and to prevent prejudice and to secure a fair and impartial trial of the facts, it is not his duty to do so in the sense that his failure to act at the time or to caution the jury in his charge will entitle the party who alleges that he has been injured to a new trial. Before that result can follow the judge's inaction, objection must be entered at least before verdict. Knight v. (699) Houghtaling, supra. A party will not be permitted to treat with indifference anything said or done during the trial that may injuriously affect his interests, thus taking the chance of a favorable verdict, and afterwards, when he has lost, assert for the first time that he has been prejudiced by what occurred. His silence will be taken as a tacit admission that at the time he thought he was suffering no harm, but was perhaps gaining an advantage, and consequently it will be regarded as a waiver of his right afterwards to object. Having been silent when he should have spoken, we will not permit him to speak when by every consideration of fairness he should be silent. We will not give him two chances. The law helps those who are vigilant — not those who sleep upon their rights. He who would save his right must be prompt in asserting them.
What was said by this Court in Burton v. R. R., 84 N.C. 192, related to the charge of the court to the jury, and in such a case exception can always be taken after verdict. If the court lays down the law improperly, the matter can be reviewed in this Court if there is an assignment of the error even in the case on appeal. The remarks of the Court in that case had special reference to an objection made to evidence which was competent for one purpose, but not for another. There was a general objection to the evidence, but the court failed to confine it to its proper and legitimate purpose. In this connection the Court said, at page 195: "It is error to admit evidence, competent for one purpose only, to be considered and acted on for another and improper purpose. The error lies not only in the omission to make the necessary explanation, but in giving a direction calculated to mislead, and which may have misled, the jury in rendering their verdict. This is so connected with the facts allowed to be proved as to extend the exception to the (700) reception of the testimony to the disposition afterwards made of it."
It is suggested that the evidence was not sufficient to justify a conviction of the defendant. There is no point made in the record as to whether there was any evidence or any sufficient in law, upon which to base the verdict. Whether there was or not is a question not now before us. The record does not contain any of the evidence, because no question was made in regard to it, and the fact that there is no statement of the evidence in the record is tantamount to an admission that there was evidence sufficient to sustain the verdict. In this Court we are confined to the record and have no right to receive information of any facts that do not appear in it, much less to consider or act upon any such information. "The record importeth verity," and we are enjoined by the law to look to the record alone and upon it to found our judgments. Any other rule would render insecure the important rights upon which we have to pass.
It is needless to discuss the question whether, if seasonable objection had been made by the defendant in this case, the remarks of the solicitor, in view of the particular circumstances under which they were made, were of such a character as to entitle the defendant to another trial. S. v. Bryan, 89 N.C. 534.
The defendant's objection to the formation of the grand jury was, we think, properly abandoned in this Court. We find no error in the rulings of the court or in the record, and it will be so certified.