COMMENTS OF COUNSEL.

See also ARGUMENT OF COUNSEL.

It is the duty of the court, if counsel state facts as proved upon which no evidence has been given, to correct the mistake, and this may be done at the time or in the charge. O'Neal, 52 (7 Ired.), 251.

The omission of the solicitor to introduce one of his witnesses is a proper subject of comment by defendant's counsel. Smallwood, 75–104.

Where the judge promptly interferes and cautions the jury that the improper remarks should not be permitted to make any impression on their minds unfavorable to the defendant, and it does not appear that the remarks complained of had any prejudicial effect, a new trial will not be granted. Rivers, 90-738. Wilson, 90-736.

Where a written order is introduced as corroborating evidence, the existence of such order and not its contents is the important fact, and whether the witness could read or not, or whether the contents were proved or not, the fact that the witness got a pair of boots with such order is a legitimate circumstance for the jury and for the comment of the solicitor. Capps, 71-93.

It is not error for a prosecuting officer to comment on the personal appearance of the defendant in reply to remarks of defendant's counsel calling attention to his appearance. Underwood, 77-502.

It is not improper in a prosecuting officer to comment on the fact that the defendant had sworn a witness and afterwards declined to examine him. Jones, 77-520.

Defendant, on trial for selling liquor, was asked by the solicitor if he had not been charged with the murder of a certain person, and answered that he had, but that the grand jury had ignored the bill; the solicitor, in addressing the jury, said that this person's murder was caused by the "moonshine business," and that it must be broken up, and, upon objection being made by defendant's counsel, the solicitor stated that he did not charge the defendant with that murder, that he would take it all back, but did say that the murder was caused by the moonshine business, and that it should be broken up. The court did not interpose, nor make any comment, nor caution the jury: Held, that the remarks of the solicitor were improper, entitling the defendant to a new trial. Tuten, 131-701; 42 S. E. 443.

The discharge of one of three defendants and the entry of a verdict of not guilty as to another are proper subjects of comment by counsel for the other defendant. Hall, 132-1094; 44 S. E. 553.

It is improper for counsel to refer to his personal knowledge of the premises without the same being given in testimony. Rogers, 168-112; 83 S. E. 161. Where, on a motion for a new trial, defendant uses an affidavit setting out objectionable remarks alleged to have been made by the solicitor to the jury, and there is no finding by the court as to whether such language was used in the argument, it will be assumed that the remarks were not made, or if they were that the court in some way removed any prejudice arising therefrom. Ray, 166-420; 81 S. E. 1087.

It is erroneous to allow the solicitor, over the objection of the defendant, to read a statement of facts from a decision to the jury and say that a jury convicted in that case and upon less evidence than there was in the case at bar. Corpening, 157-621; 73 S. E. 214.

Where counsel for defendant, who has not testified as a witness in his own behalf, erroneously comments in his argument to the jury that the defendant was presumed to be a man of good character, it is not error to permit the

solicitor in reply to argue that defendant had not taken the stand as a witness, and that his attorney should not be allowed to claim that the defendant's character was good. Knotts, 168-173; 83 S. E. 972.

It is error to allow the solicitor to state that certain witnesses had been subpoenaed by the defendant, and were in court, in reply to comments of counsel for defendant to the effect that the witnesses had knowledge of the crime and had not been subpoenaed by the state, there being no evidence that such witnesses had been subpoenaed by defendant. Goode, 132-982; 43 S. E. 502.

The failure to summon witnesses who are shown to have been present at conversations regarding the matter in controversy, or who have knowledge respecting facts or questions at issue is a proper subject of comment by counsel. Goode, 132-984; 43 S. E. 502.

A failure to examine a witness who has been subpoenaed, or sworn, is a proper subject of comment. Goode, 132-984; 43 S. E. 502.

An exception to remarks of counsel must be taken before verdict. Tyson, 133-692; 45 S. E. 838.

Where contentions of the state have been argued by the solicitor without objection, an objection to a statement of the trial judge calling attention to such contentions can not be made for the first time on appeal. Davis, 134633; 46 S. E. 722.

Comments of counsel are under the supervision of the trial judge, and the supreme court will not interfere unless it appears that the trial judge has been too vigorous or too lax in the exercise of his discretion to the detriment of the parties. Exum, 138-601; 50 S. E. 283.

There is a difference between arguments addressed to the jury which are merely illogical and irrelevant and the use of abusive epithets or characterization of parties or witnesses. Horner, 139-603; 52 S. E. 136.

Comment that the case had been removed from the county where the indictment was found, and that defendant did not testify, does not entitle defendant to a new trial, when the court promptly interrupted counsel, and told the jury they could not consider such improper remarks. Harrison, 145-408; 59 S. E. 867.

The refusal of the court to interfere with the comments of counsel is not reviewable, except in case of gross abuse. Carrawan, 142-575; 54 S. E. 1002. Unless an exception to language used by counsel is taken, either at the time, or by request to instruct the jury to disregard the objectionable language, it can not be assigned as error. Horner, 139-603; 52 S. E. 136.

The solicitor may comment on the failure of defendant to prove his whereabouts at the time of the commission of the offense. Costner, 127-566; 37 S. E. 326.

An attorney for the prosecution may comment on the failure of the defendant to examine a witness subpoenaed by him. Costner, 127-566; 37 S. E. 326. The state never asks that one of her citizens shall be either convicted of a high crime or imperiled in his trial by appeals to the passions and selfish private interests of the jurors. The evidence should be fairly and impartially stated to the jury, and the deductions and argument therefrom legitimate and candid. Caveness, 78-484.

Comments of counsel are under the supervision of the trial judge, and the supreme court will not interfere with the exercise of his discretion unless it plainly appears that he has been too vigorous or too lax in exercising it to the detriment of the parties. Craine, 120-601; 27 S. E. 72.

It is not improper for counsel for the prosecution to comment on the fact that defendant failed to introduce witnesses whom he had summoned and who were present, or that he failed to prove his innocence by his brother, who had been summoned by the state. Kiger, 115-746; 20 S. E. 456.

ATTENTION MUST BE CALLED.-Even if counsel make improper arguments to the jury it can not be assigned as error unless the attention of the judge was called to it at the time. Lewis, 93-581.

Where one to whom an alleged illegal sale of whisky has been made was arrested and held as a witness for the state, but is not introduced as a witness on the trial, an instruction that defendant's counsel had no right to comment on the fact that the witness was not called was erroneous as an expression of an opinion. Harris, 166-243; 80 S. E. 1067.

It is not improper for a prosecuting officer in his argument to the jury to comment on the fact that the defendant had sworn a witness and afterwards declined to examine him. Jones, 77-520.

Abuse of privilege of counsel in the argument to the jury is never ground for a new trial, except when it is gross and probably injured the complaining party, and was not properly checked and corrected by the court. Rogers, 94-860.

An exception for abuse of privilege not made until after verdict will not be considered. Speaks, 94-865.

Objections to comments of counsel not made until after the verdict come too late. Powell, 106-635; 11 S. E. 191.

ATTORNEYS-PRELIMINARY STATEMENT.-Counsel may make a preliminary statement to the jury of what a party expects to prove in both civil and criminal cases. Sheets, 89-543.

RIGHTS OF COUNSEL TO SPEAK.-The presiding judge has no authority to refuse to hear more than one of defendant's counsel, or to restrict counsel in their remarks to any particular length of time. Miller, 75-73.

It is no ground for a new trial that counsel for the prisoner was limited by the court in his remarks to one hour and a half. Bynum, J., dissenting. Collins, 70-241.

Reading DeciSIONS OF SUPREME Court to JURY.-Counsel have no right to read a statement of facts contained in the report of a former trial of the same case in the supreme court for the purpose of contrasting such statement with the statement of the witnesses in the pending trial. Whit, 50 (5 Jones), 224.

Counsel may read adjudged cases in their arguments to the jury, but the facts contained in such cases can not be commented on as the facts of the case on trial. Powell, 94-965.

Counsel have no right to read, in their argument to the jury, an opinion of the supreme court delivered on an appeal from a former trial of the same case detailing some of the facts of the case as they then appeared. Smallwood, 78-560.

ABUSE OF PRIVILEGE OF COUNSEL.-Counsel for the prosecution in addressing the court on a motion to withdraw a juror and order a mistrial on the ground of alleged fraud in selecting the jury, said, in the presence and hearing of the jury then impaneled, that two of the jurors had gone into the box "with souls blackened with perjury and bribery, and that all hell could not change their minds," and persisted in the use of abusive language toward the two jurors during the trial, all of which was against the objections of counsel for the prisoners. One of the counsel for the state while addressing the jury stepped on the foot of one of the jurors charged with bribery, saying to him, “I beg your pardon, I only wanted to wake you up," though the juror was not only awake but demeaning himself properly: Held, that the errors of such conduct could not be cured by the charge of the court, and defendants are entitled to a new trial. Noland, 85-576.

COMMENTS OF COUNSEL.-ABUSE OF PRIVILEGE.-Where defendant introduces himself as a witness, but fails to introduce evidence as to his character, and there is a conflict between his testimony and that of the prosecutrix, a comment by the solicitor that the defendant was "without a character," is legitimate. Davis, 92-764.

Where a witness, under the permission of the judge, refuses to answer whether he has been convicted of a crime, his refusal may be commented upon by counsel as warranting the inference that the witness is unworthy of credit. Garrett, 44-357.

Abuse of privilege of counsel to the real prejudice of a defendant entitles him to a new trial, but mere "cross-firing," which is stopped by the court before. any real injury is done, does not warrant a new trial. Underwood, 77-502.

Defendant's counsel in addressing the jury said that his client was a respectable white man, and that it was unreasonable to suppose that he would steal meat. The solicitor in reply said: "Now, gentlemen of the jury, I am a colored man; you are white men. If the defendant was a colored man you would convict him in five minutes on this evidence:" Held, that the error, if any, in permitting such remark by the solicitor was cured by a caution of the court to the jury not to be influenced by such remarks. Hill, 114-780; 18

S. E. 971.

It is proper for the judge to interrupt counsel who addresses his remarks to certain members of the jury individually. Pearson, 119—871; 26 S. E. 117. In all cases questions tending to disparage or disgrace a witness may be asked, provided they are limited to particular acts; but even then, when it is apparent to the court that they are put merely for the purpose of annoying or harassing the witness, the trial judge may, in his discretion, refuse to compel him to answer, but such refusal is a legitimate subject of comment before the jury. Gay, 94-814.

On a trial for murder a witness for the state testified that at the time of the killing he was in the grasp of the deceased, but did not see who struck the blow; that afterwards he met the prisoner, who remarked: "Didn't I tell you I would relieve you from that man? I got the damned son-of-a-bitch." The prisoner did not offer himself as a witness and introduced no evidence. Counsel for the state in his argument to the jury repeated the testimony of this witness and said: "Now, gentlemen of the jury, no one has contradicted the testimony of Mose McMillan, and you must accept it as the truth." No exception was taken to this remark at the time, nor was the attention of the court called to it: Held, not to be error; the privileges of the defendant are enlarged by the act allowing him to testify, but officers prosecuting for the state are not restricted from making such comment on the testimony as would have been legitimate before the passage of the act allowing the defendant to testify. Weddington, 103-364; 9 S. E. 577.

On trial for larceny counsel for the state in his argument said "that if the judge had believed that the defendant had made out a fair claim to the property he would have directed a verdict of acquittal without their leaving the box; but as he had not done so the judge must not have believed that a fair claim to the property had been shown by the defendant." This passed unnoticed by the judge then and in his charge. When the jury returned with a verdict of guilty and on being polled three of them did not concur, the judge informed them that "he had no opinion of his own and that it was improper for counsel to so have represented him:" Held, to be error; the remarks of counsel were improper and the attempted correction of them came too late. Caveness, 78-484.

An exception to improper remarks by counsel must specify what was said; otherwise the supreme court can not see that any prejudice resulted from the irregularity. Caveness, 78-484.

On trial for larceny counsel for the state argued to the jury "that some time or other possibly one of them might be compelled to have a suit for property upon which he relied for subsistence, and the person with whom he was in litigation might seize and detain it, as the defendant had done in this case; that they must remember that at some time one of them might be placed in the circumstances of the prosecutrix, and as they would expect justice themselves, so they must mete it out to the prosecutrix," when he was stopped by the court: Held, that the court properly stopped such remarks. Caveness, 78-484.

The statement of the judge that he did not remember evidence commented on by the solicitor was a proper ruling on an objection to such argument. McCourry, 128-594; 38 S. E. 883.

COMMERCIAL OR BUSINESS SCHOOLS.

Sec. 143. Shall obtain license.

That before any business college or commercial school shall receive or solicit students, or open any business school for the purpose of giving instruction in this state, said school or college shall first secure a license from the state board of examiners to the effect that it has complied with the requirements of this act, which license shall be issued by the state board of examiners upon the payment of an annual fee of ten dollars.

Before any such business college or commercial school shall be entitled to receive such license it shall file with the state board of examiners a report setting forth:

1. That it is the owner or lessee of suitable building or rooms for the conduct of its work.

2. That it has acquired suitable equipment for the courses given by the school.

3. That the said school has secured a faculty of teachers whose training has not been less than that required of teachers engaged in similar work in public schools of the state.

4. That said school or college has adopted an approved course of study which includes at least the following subjects: bookkeeping, commercial law, commercial arithmetic, English, commercial correspondence, business writing, shorthand, and typewriting.

5. That the owner and manager of said school or college shall further file a certificate signed by the county superintendent of public instruction and the chairman of the county board of education of the county in which the school is situated to the effect that the owner or manager of such school or college, after investigation,