Miller v. Coleman

On Motion For Rehearing.

In the motion for rehearing counsel for the plaintiffs in error state that this court “evidently overlooked or inadvertently misquoted the following language which counsel for the plaintiffs in the lower court used in the final and concluding argument to the jury, to wit: ‘The defendant, Henry Miller, made the statement that he would spend thirty thousand dollars to defeat this case and prevent these plaintiffs from stopping this nuisance.’ In the amended motion for new trial the foregoing was the wording of the argument of counsel for the plaintiffs in the concluding argument to the jury.”

Ground 14 of the amended motion for a new trial, which raises the question dealt with in division 6 of the opinion, is quoted below verbatim:

“Fourteenth: During the argument to the jury, Mr. Cheatham stated that he had asked Mrs. Miller if she knew that her husband had boasted that he would spend his $30,000 inheritance to defeat this case if necessary. Mrs. Miller denied that she had knowledge of such statement. Mr. Cheatham then stated to the jury that Mr. Miller was in the courtroom and was the defendant in the case and had had an opportunity to get on the stand and deny any inference from the question he had asked Mrs. Miller but that he had not chosen to do so and that as such the jury had a right to consider the fact that Mr. Miller did not make such denial. Mr. Myrick objected to this argument on the grounds that there was nothing in the evidence to show that Mr. Miller had made the statement. Mr. Cheatham said that Mrs. Miller had been asked the question about the $30,000 and Mr. Miller heard it and did not take the stand; therefore, the jury had a right to take that into consideration when they were considering the answer of Mrs. Miller. The court overruled Mr. Myrick’s objection. The said argument to the jury was most prejudicial to the defendants’ case, and was calculated to unduly and improperly influence the jury against the defendants, and it was error on the part of the court to overrule the objection of defendants’ counsel then and there made at the time and during the course of the foregoing statement of the counsel for the plaintiffs to the jury.”

No mention is made in this ground of the motion for a new trial that this was in the “concluding argument to the jury,” nor can the following quoted sentence be found in this ground of the motion: “The defendant, Henry Miller, made the statement that he would spend thirty thousand dollars to defeat this case and prevent these plaintiffs from stopping this nuisance.”

A comparison of division 6 of our opinion with ground 14 of the amended motion for a new trial will demonstrate that we neither “overlooked” nor “inadvertently misquoted” any language appearing therein, but that it is counsel for the plaintiffs in error who have “overlooked or inadvertently misquoted” the record. They are evidently relying upon their original brief, rather than upon the record, in making the assertions contained in the motion for a rehearing.

Motion for rehearing denied.