Yancey v. Bruce , 109 Ark. 569 ( 1913 )

Wood, J.,

(after stating the facts). Appellants’ objection to the instruction can not avail for the reason that the parts of the instruction complained of were separate paragraphs of a general instruction, given of tthe court’s own motion, which contains several paragraphs, none of which are numbered, but several of which contain correct propositions of law. The general objection to the charge as a whole, did not raise in thé mind of the trial court the specific objection of which appellants now complain. Moreover, to get the benefit of their exceptions here, the appellants should have called the attention of the trial court to the alleged error of which they here complain. Also, we are of the opinion that the instruction, except as to the form of the verdict, when taken in connection with the evidence, was substantially correct, and could not have misled the jury. The court meant to tell the jury, in that part of the instruction objected to, that if the plaintiff continued to exercise control over the land for the year 1912 with the acquiescence and consent of the appellants, that they would'he authorized to find for the appellee. Upon the testimony tending to show that the appellee was in possession of the land for the year 1912, and that this was with the knowledge and consent of the appellants, the instruction was free from error.

There was testimony to warrant a .finding that appellee, at the time1 the possession of the hay was taken from him, was holding the land under Ms contract for the year 1912. In other words there was testimony to warrant the jury in finding that appellee, under the contract, was a tenant from year to year.

But the appellants denied that there was any contract for the lease of the land to appellee for the year 1912, and the testimony in their behalf would have also warranted a finding to that effect. They contended that the contract with Bruce ended with the year 1911, that being a verbal contract for the lease of land, it could not last longer than the year 1911, and that the conversation that Yancey had with the appellee, in wMch he told him that he could go ahead under the contract with Cain until they disposed of the place, had reference to the lease of the land for the year 1911; that tMs conversation took place some time in February, 1911, and had reference to the rent for that year.

According to the testimony of Yancey, the conversation that he had with appellee in the fall of 1911 had reference to paying appellee for putting in the meadow. He says that he thought that'appellee at that time had “thrown up Ms claim of lease,.” and was asMng remuneration for Ms trouble and expense in putting in the meadow. Yancey stated that he did not know that appellee had been on the land weeding it out and cleaning it up in the spring of 1912.

In view of the controversy developed by the testimony as to whether Yancey had consented in November, 1911, for appellee to continue the contract for the year 1912, the' argument of Mr. Jones was prejudicial. The time for the taking of testimony had closed. It was then a matter for the recollection of the jury as to whether witness Bruce, while on the stand as a witness, had made the statement attributed to him by counsel in argument. It was disputed by the appellants. Appellants- contended that Bru-ce had made no such statement, and it was highly improper and prejudicial for the court to permit counsel to give his recollection of what the witness’s testimony was, and call upon the witness, during his argument, to vouch for the correctness of his recollection by asking the witness if that was not what he testified to, and receiving an affirmative answer from the witness. This method of conducting an argument would necessarily result in great prejudice to the opposite party, who, at the .time, had no opportunity to cross examine the witness on the matter about which he was being interrogated.

Even if counsel, in his argument, was not misstating the testimony, it would be giving the party he represented an undue advantage to have his statements, as he proceeded in the argument, corroborated by an affirmative and approving nod of the witness. Such method of argument is contrary to the order of procedure prescribed by our statute for the conduct of trials by jury, and should uever .be tolerated by the court. Kirby’s Digest, § 6196. Prejudice must necessarily result in such procedure, for it is tantamount to having a witness, after the testimony is closed, repeat material parts of his testimony without any opportunity afforded the opposite party to cross examine or challenge the accuracy of his statements.

For this error, the judgment must be reversed and the cause remanded for a new trial.