Campbell v. Maher

• Decision Date: 17 February 1886
• Citation: 105 Ind. 383,4 N.E. 911
• Parties: Campbell v. Maher.
• Court: Indiana Supreme Court

105 Ind. 383

4 N.E. 911

Campbell

v.Maher.

Supreme Court of Indiana.

Filed February 17, 1886.

Appeal from Pike circuit court.

Reily & Niblack, for appellant.

ELLIOTT, J.

In the course of his argument to the jury the counsel for the appellee said: “The record in this case shows that the plaintiff was not willing to try this case at his home, in Daviess county, among his neighbors, but has brought the case to Pike county, on a change of venue among strangers.” The appellant objected, and the court, as the record recites, “remarked that it was not improper for counsel to refer to matters which were disclosed by the record, since the whole record was before the jury; but that the argument of counsel had gone too far, and should be limited to the record.” What followed is thus exhibited in the record:

“And thereupon counsel for the plaintiff resumed his seat, and the counsel for the defendant again turned to the jury, and, resuming his argument, said: ‘The court says I may refer to the record. Gentlemen, the record of this case shows that the cause was brought from Daviess county to this county on the motion of the plaintiff.’ To which statement the plaintiff's counsel again objected, and again assigned, in support of his objection, the reasons assigned by him in support of the objection to argument of defendant's counsel hereinabove set out; but the court overruled said objection, to which the plaintiff's counsel excepted, whereupon the defendant's counsel again turned to the jury, and said: ‘Gentlemen of the jury, I have only stated to you what the record in this cause shows to be true, and the court has decided that I have a right to do this.”’

The trial court was unquestionably wrong in ruling that everything that appears in the record is the subject of argument to the jury, for there are many things that the record discloses which the jury have no right to consider. Juries, as every one knows, are sworn to try the case according to the law and the evidence, and an argument must be confined to the evidence and the law. Where a party secures a legal right according to law, the fact that he has secured it cannot be used to his prejudice. A change of venue is a legal right, and where it is awarded by the court in conformity to law it cannot be used to the prejudice of the party by whom it was obtained, nor can it be commented on in argument. It would be a perversion of law to permit the exercise of a legal right, under the order of the...