Voullgaris v. Gianaris

• Decision Date: 06 April 1920
• Citation: 109 A. 838
• Parties: VOULLGARIS v. GIANARIS et al.
• Court: New Hampshire Supreme Court

109 A. 838

VOULLGARIS

v. GIANARIS et al.

Supreme Court of New Hampshire, Hillsborough.

April 6, 1920.

Transferred from Superior Court, Hillsborough County; Sawyer, Judge.

Case for conspiracy by Christos Voullgaris against Atha Gianaris and another. Verdict for plaintiff, and defendants except to certain statements made in argument for plaintiff. Case transferred from superior court. Exceptions overruled, and judgment on the verdict.

Cobleigh & Theriault, of Nashua, for plaintiff.

Branch & Branch, James A. Broderick, and Jesse B. Pattee, all of Manchester, for defendants.

WALKER, J. Of the numerous exceptions taken by the defendants at the trial, the exceptions to the argument of the plaintiff's counsel seem to be the only ones insisted upon.

1. If there was in the argument a misstatement of the evidence by the plaintiff's counsel, the error is not fatal to the verdict (State v. Wren, 77 N. H. 361, 364, 92 Atl. 170; Gosselin v. P. M. Hoyt Shoe Co., 78 N. H. 149, 97 Atl. 744), especially in view of the finding of the presiding justice that, "I am of the opinion that the statements of counsel in argument produced no injury to the defense."

2. Statements that the defendants were engaged in a scheme to defeat justice and to bring discredit upon the courts, inferable from the counsel's view of the testimony, are not open to exception as presenting an error of law. State v. Dinagan, 79 N. H. 7, 104 Atl. 33; Topore v. Railroad, 79 N. H. 169, 106 Atl. 498; State v. Small, 78 N. H. 525, 102 Atl. 883.

3. An assertion that when the police "are down on a person there is generally a reason," which introduces no new fact, is not objectionable. It would seem to be immaterial.

4. The question whether the defendants had been instructed in the law of perjury, as counsel for the plaintiff stated, had no relevancy to any issue on trial. Nor is it clear how such a statement, unexplained by other evidentiary facts, would be prejudicial, or induce in the minds of the jury a belief that the defendants were not to be believed. Ordinarily a knowledge of the law of perjury would cause witnesses to testify to what they believed to be true upon material points, rather than what they believed to be false. The argument was not harmful to the defendants.

5. When counsel told the jury in effect that the fact the defendants did not testify in a former criminal proceeding against them growing out of the same facts as exist in the present case, is an admission of their...