
    Reuben Kizer v. The State.
    1. CRIMINAL Law. Limiting argument of counsel. All parties are entitled to be heard by counsel. This right is subject to the control of the courts in the exercise of a sound judicial discretion. In cases-involving the life or liberty of the citizen, this discretion should be carefully and cautiously exercised.
    2. Same. Same. The mere entering of a general exception to the action of the court in limiting the argument of counsel, is insufficient .to cause a reversal unless the court can see'that the prisoner has been injured by an improper exercise of judicial discretion.
    3. Same. Same. Where counsel are limited in their argument to a shorter time than they deem proper, they should object, stating the grounds of objection, and at the close of the limited time should state or show the, limited time was exhausted before they had completed their argument, and should "then ask permission to proceed.
    FROM DAVIDSON.
    Appeal in .-error, from the Criminal Court of Lavid-sonj county. Matt. W. AlleN, J.
    
      John L. Nolen for Kizer.
    Attoeney-Ceneeal Lea for the State.
   Cooke, Sp. J.,

delivered the opinion of the court.

The prisoner was indicted for the murder of one George Simpson, was tried and convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for a term of fifteen years. His motion for a new trial was overruled, and he appealed to this court. But two grounds have been urged why the judgment should be reversed and a -new trial granted: . First, it is insisted that the preponderance of the evidence is against the verdict, and it should for- that reason be set aside. Upon a careful examination of the testimony, however, we are entirely satisfied that the jury were well warranted by the evidence in finding the verdict which they did, and it will not be disturbed upon this ground.

The record shows that .the prisoner was defended .by three counsel, and upon the argument of-the casé, the court limited the counsel to one hour and ten minutes on each side. The State was represented alone by the attorney-general of the district, ■ who waived his opening speech, * and reserved his entire seventy minutes for his concluding argument. The prisoner by his counsel excepted, but-the court over his objections, enforced the restriction, and the three counsel for the defense proceeded to argue the case, which, upon an equal division of the time allowed them, -gave •to each twenty-three minutes and twenty seconds.

There had been nine witnesses examined on part of the State, and seven on part of the defendant, all as to facts connected either directly or remotely with the transaction. The fact of the killing of the deceased by the prisoner was not controverted. He was shot and killed at a bagnio in Nashville, and two-of the inmates, and two or three other persons residing in the immediate vicinity, who saw more or less-of the transactions were the principal witnesses. The testimony was apparently directly conflicting as to material fact's, both as to its origin and the part which' the prisoner and the deceased each took in the transaction — a portion of the witnesses testifying to facts tending to show that the killing was a very aggravated and unprovoked homicide on part of the prisoner, and others testifying directly to facts which, if true, tended greatly to mitigate, if not to justify the-killing. While others testified to facts and circumstances tending either directly or remotely to corroborate the witnesses to the transaction on each side. The facts, however, in regard to which these conflicts occur are not numerous or complicated. And the-question arises whether the restriction of the argument as to time placed upon the counsel by the court over the simple. objection without more ..is reversible error. By article 1, sec. 9, .of our State Constitution: “In all prosecutions the accused hath a right to be heard by himself and his counsel.” This right, however, is, and in the nature of things must be subject to the control of the courts in the exercise of a sound judicial discretion. To what extent this discretion is-subject to the revision of this court has not, and perhaps can not be specifically defined. In cases, however, involving the life or liberty of the citizens, this discretion entrusted to the courts should be carefully and cautiously exercised; and where this court can see that the rights of a party may have been jeopardized by an improper exercise of this judicial discretion it will not hesitate to reverse for that cause. “In criminal cases,” says Judge Cooley, “we. think the court may' sometimes have a duty to perform- id seeing that the prisoner suffers nothing from inattention or haste on the part of his counsel, or impatience on the part of the prosecuting officer, or of the court itself. " Time may he precious to the court, but it is infinitely more so to him whose .life or whose liberty may depend upon the careful and patient consideration of the evidence, when the counsel for the defense is endeavoring to sift the truth from falsehood, and to subject the whole to logical analysis, so as to show that how suspicious soever the facts may be, they are nevertheless consistent with innocence. Often, indeed, it must happen that the impression of the prisoner’s guilt, which the judge and the jury unavoidably receive when the case is opened to them' by the» prosecuting officer, will insensibly to themselves color all the evidence in the case, so that only a sense of duty will induce a due ' attention to the. summing, up for the prisoner, which' after all may prove unexpectedly convincing. Doubtless the privilege of counse is sometimes abused in these cases. * * and cases may arise in which the court will feel compelled to impose some reasonable restraint upon the address to the jury; but it is better in these cases to err on the side of liberality/and restrictions ' which do not leave to counsel, who are apparently acting in good faith» such reasonable time and opportunity as they may deem necessary for presenting their client’s case fully, may possibly, in some cases, be so far érroneous in law as warrant setting aside a verdict of guilty Cooley’s Const. Lim, pp. 414 and 415.

As above stated, we are aware of no decision of this court directly’ upon the question here presented. In the case of Lynch v. The State, 9 Ind., 541, it was held by the Supreme Court of that State’ that the court can not prohibit argument in a criminal case; but it inay regulate the argument of causes by reasonable rules and limitations. In the case of Stmt v. The State of Georgia, it was held that under the provisions of the Constitution of that State (which are nearly the same as ours)’, it’ was error in the Supreme Court to limit the defendant’s counsel to a definite time in his argument before the jury, over his protest that he could not do justice to his’ client’s case within the prescribed time: 49 Ga., 255. "In‘that case the defendant was ’ indicted' ’ for '' an- assault with intent to murder. On ’ the trial he was convicted of the lesser offense of stabbing. ' In that case the court limited the defendant’s counsel to' thirty minutes in .his argument before the jury, o.ver his protest that he could not’ do justice' to liis client’s case within the limited time prescribed" by the court, he was allowed however to go ten minutes over' the time' prescribed, that is, he was permitted to speak forty minutes. Chief Justice 'Warner delivering 'the opinion of the court, said: In view of the provision of the Constitution, which declares that every person charged with an offense against the laws shall have the privilege and benefit of counsel, the court below committed a grave error in limiting the argument of counsel, as disclosed by the record, which this court cannot sanction.” He added: “If the evidence had been so decidedly strong as to have required the verdict rendered by the jury, the court might not have interfered with it for the error complained of; but the evidence is conflicting as to whether the stabbing was done in self-defense, and, inasmuch as the defendant was prevented by the co.urt from having the privilege and benefit of counsel in his defense, as contemplated by the Constitution, we 'reverse the judgment.”

The same question came before the Supreme Court of California in the case of the People v. Keenan, 13 Cal., 581; which was an indictment for murder. In tpat case there were two counsel for the prisoner, and fhe trial court limited each of them in his argument before the jury to one hour and a half. At the expiration of the time allowed the first counsel, who arguqd for the defense, he was stopped by the court, whereupon he moved the court for further time to finish i his argument to the jury, stating as a reason therefor that he had not had, sufficient time ;to answer all.,the arguments of the counsel who opened the cause on behalf pf the people, and had not had time to do justice to his client in the argument of the cause by noticing all the circumstances and. evidence connected with the case. But the court overruled his motion and refused .to allow him to proceed unless the fur-, ther time occupied by him was taken from that allowed to his associate counsel. To which action of the court he excepted. The defendant was convicted of murder iu the first degree, and upon a motion for a new trial both of the counsel for the defense presented their affidavits, stating substantially the same, facts as stated in the motion for leave to proceed above recited. But the motion for a new trial was overruled, and upon appeal this action .of the court was assigned as error.

In delivering the opinion of the court, Baldwin, J., said: “We do not dispute the right of, the .district judge to control and direct the proceedings of the court so that the time be not wasted in arguments, disputes and contentions, having no tendency to bring about, a fair and legal disposition of judicial business. An enlarged discretion must necessarily be given him over this subject; and we should certainly with great reluctance disturb the exercise of that discretion in any given case. Nor do we here question the right of a district judge to .'limit counsel to a reasonable time in their arguments to the jury, though from .the danger to which the power is exposed, it is perhaps better, if ever done at all in .capital cases, that it should only be done in very extraordinary and peculiar instances. It is unquestionably a constitutional privilege of the accused, to be.fully heard by Iris counsel. An opportunity must be afforded him for full and complete defense; and it is very difficult for a judge to determine, what effect a given line of argument may have upon a jury, or some one of them? or what period may be necessary to enable counsel to-present, in the aspect deemed by them important? the case of their client. The minds of men are so-differently constituted that one advocate may require much more time for .the statement and elaboration of his views than another/’

At the conclusion of the opinion the court say t “In this instance the court limited the time for the argument against the prisoner’s consent.” At the expiration of that time the counsel applied for an extension of it: and the affidavits of counsel of respectability and standing show that they were prevented By this restriction from a full and fair defense of their client, and this showing is fortified by the nature of the case and the large mass of testimony before the jury.” “If it' (the - court) imposes a limitation of time upon counsel against their consent, this-must be done at the risk of a new trial, if it is shown hy uncontradicted affidavits that the prisoner was deprived by the limitation of the opportunity of a full ■defense.”

We have taken these copious * extracts from the decisions referred to for the reason that they are the only direct authorities on the question to which we have had access: and we approve the . reasoning upon which they are predicated and the principle upon which they were determined. It will be observed, however, that the decision in the one case was based upon the solemn asseveration, of . the .counsel,, in., bis;,place,, after he had exhausted the time allowed liim by. the court, that he had not been able to ,finish.,his,,argument- in the time allowed, and that there were .other fa.cta, and. circumstances which he . deemed important,..to present to the jury, which he had .not had time to. do; and,, in the other upon the same formal application by, way of motion to be allowed to proceed after the., time, had been exhausted, supported by affidavits upon the niotion for new trial to the . same effect. In .this, case, while we think the action of the ttrial judge .is subject to criticism in 'confining counsel to so short a time in the argument of a capital felopy before .the jury, yet as we are satisfied that the verdict is well sustained by the evidence, and as .there is nowheke any suggestion or intimation by any, of the counsel after they had. exhausted the time allowed them by the courtj that they had not said all they desired to «ay, or that any injustice had in their opinion been done the defendant by the limitation of the argument, nor is it" anywhere shown that they desired to proceed with the argument, or was stopped by the court, after having exhausted the time allowed them.; and as no reason for the exception to the action of the court is anywhere stated, we are of opinion., that the mere exoeption, in general terms, to the ruling of the court without more. is not sufficient to .authorize a reversal of the case on account of an improper exercise on part of the court of his judicial discretion, unless we were able, to see that some injus*-tioe' had in fact been done the defendant, or facts al-legecl or ' shown from which we could see, that such, might -have been th.e case.

The 'judgment of the court below will therefore be-affirmed.  