Coble v. Coble

• Decision Date: 30 June 1878
• Citation: 79 N.C. 589,28 Am.Rep. 338
• Court: North Carolina Supreme Court
• Parties: JULIA A. COBLE and others v. DAVID COBLE, Adm'r.

28 Am.Rep. 338

79 N.C. 589

JULIA A. COBLE and others

v.DAVID COBLE, Adm'r.

Supreme Court of North Carolina.

June Term, 1878.

CIVIL ACTION tried at Spring Term, 1878, of GUILFORD Superior Court, before McKoy, J.

The facts appear in the opinion. There was judgment for the plaintiffs in the Court below and the defendant appealed.

Mr. Thomas Ruffin, for plaintiffs .

Messrs. Scott & Caldwell, for defandant .

BYNUM, J.

The argument and exhaustive brief of Mr. Ruffin have convinced us that the law and merits of the case are probably with the plaintiffs, and it is with reluctance that we are compelled to withhold an affirmation of the judgment rendered below, and to award a venire de novo But in the conduct of the trial before the jury, there has been such a gross abuse of the privileges of an attorney to the manifest prejudice of the defendant, that we can not refuse him a new trial without a clear departure from a well considered line of decisions of this Court.

We extract from the case so much of it as is necessary to present the question to be determined: “Plaintiffs' counsel in his concluding speech to the jury commented on the character of the defendant in language of denunciation; among other things, in speaking of the character of plaintiffs' witness, D. S. Coble, who had been impeached by the testimony of the defendant, he said, ‘that no man who had lived in defendant's neighborhood could have anything but a bad character; that defendant polluted every thing near him, or that he touched; that he was like the upas tree, shedding pestilence and corruption all around him.’ The defendant's counsel objected during these utterances to these comments, upon the ground that the character of defendant had not been impeached, and that he had not been offered as a witness except by the plaintiffs,” who had used his written testimony in their own behalf.

Upon the argument here it was admitted that this was irregular, but it was insisted that it would not entitle the defendant to a new trial, unless it clearly appeared that his cause was thereby prejudiced, and that it was impossible such could have been the case because there was but a single issue that was left finally to the jury, to wit, whether the Shaw land was purchased with the plaintiffs' money, and as to that one the defendant was not examined, nor did his written evidence relate thereto, and could have had no weight one way or the other with the jury in determining the single issue...