Prather v. McClelland

• Decision Date: 14 November 1894
• Citation: 28 S.W. 94
• Parties: PRATHER et al. v. McCLELLAND.
• Court: Texas Court of Appeals

28 S.W. 94

PRATHER et al. v. McCLELLAND.

Court of Civil Appeals of Texas.

November 14, 1894.

On rehearing. Denied.

For prior report, see 26 S. W. 657.

COLLARD, J.

Upon reconsideration of our former opinion in this case, upon the motion of appellee for a rehearing, we have concluded that we must recede from that part of the opinion which holds that the language of attorneys for appellee in argument before the jury was not warranted by the testimony adduced for defendant. The language was inflammatory, but, upon further investigation, we are not prepared to say the judgment should be reversed for that reason. Under the rule that latitude must be allowed in argument, it is difficult in some cases for a court to limit it, and determine what is not argument deducible from the testimony, and what are merely exaggerated deductions from the testimony. When it is not based on some reasonable view of the testimony, it is not permissible; but, when it is mere exaggeration of a feature of the case upon which there is testimony, the court cannot interfere. The jury must be left to judge of the facts, and are presumed to be competent to do so, notwithstanding exaggerated declamation of counsel. We modify our former opinion to this extent: That the argument of counsel would not require the court below to grant a new trial. In all other respects, we abide by our former opinion, and overrule appellee's motion to grant a rehearing and to affirm the judgment of the court below. The judgment of the lower court was properly reversed for errors pointed out in the original opinion, other than the argument of counsel. The motion is overruled.