trial judge explained, by interruptions and objections had sought " to entrap the able counsel employed in the prosecution by the State into some such intemperance of lan guage and gross violation of the law as was indulged in by him," and as the appellate court said, by this he was " goaded into a perfect frenzy of irritation, which for the moment rendered him wholly oblivious or totally reckless of the consequences to fol low." (By the way, do consequences ever precede?) But although counsel could "scarcely be blamed," yet the defendant must not be allowed to suffer by reason of his loss of ternper. In Coble v. Coble, 79 N. C. 589; s. c. 28 Am. Rep. 338, plaintiff's counsel said, in addressing the jury, that " no man who lived in defendant's neighborhood could have any thing but a bad character; that defendant polluted everything near him, or that he touched; that he was like the upas-tree, shed ding pestilence and corruption all around." For this arborical allusion defendant was awarded a new trial, the court holding that it was not excused by " zeal of counsel or heat of debate." So counsel were taught not to transplant the poisonous upas into the court-room. The allusion was all the more reprehensible because modern investi gation shows that the deadly upas-tree never existed except in imagination, and on the stage in the opera of " L'Africaine." The upas-tree was again invoked, with the like result, in McDonald v. People, 126 Ill. 150; 9 Am. St. Rep. 547. Perhaps in this case the court were a little prejudiced against counsel on account of his having (most unwarrantably) alluded to them on the same trial, as those seven wise men down at Ottawa." Anyhow, they declared this repre hensible language, and thus resented the im putation, probably deeming it " sarkastikal." In People v. Rohl, New York Court of Appeals, 33. N. E. Rep. 933, an indictment for murder, the defendant having testified that the deceased had made an insulting remark about defendant's wife, the district
attorney, in argument, referred to deceased "as a veteran in the late war, who rendered meritorious service to the government, went to war, and would be the last man to call a woman a whore." Held, no error. But the argument seems to be a non sequitur in assum ing that war is a school of politeness, and that a man would refrain from calling a woman "that name" — as Desdemona puts it — if he thought it justified, simply because he had been engaged in the rough busi ness of soldiering. The inhabitants of New Orleans did not derive this impression from General Butler's celebrated order. In Huckshold v. St. Louis, I. M. & S. Rv. Co., 90 Mo. 548, counsel said to the jury: "In a case of this kind the law fixed the penalty at $5,000. What in the name of common sense do railroad companies care for §5,000? If they want to make issue, what in the name of common sense do they care for that? And yet they have the heart to come here and say that you ought to find a verdict for the defendant, and let the railroad companies kill all the men and boys they please." To this objection was made, but the court declined to inter fere. On review the court said : " The trial judge, who had heard the speeches of oppos ing counsel, and knew what, if anything, was said to provoke the last remarks of counsel in his closing speech, was in a better position than we are to determine whether he should or not interfere; and as to when, how, and to what a trial judge may interfere in any case must depend upon the exercise of a sound discretion, especially so in view of the fact, within the knowledge of every trial judge as well as those who practise before him, that he is closely scrutinized by the jury to dis cover, if possible, how he inclines to view the evidence; and it is only when it clearly appears that this discretion has been abused that we will interfere." In Gulf, etc., R. Co. v. Wallen, 65 Tex. 568, counsel for the defendant, in his argument to the jury, made use of the following lan guage: "The plaintiff has no right to com
