Larsen v. Johnson

McCOY, P. J.

Plaintiff brought this action, alleging that defendant wrongfully, falsely, maliciously, and without probable cause accused and charged plaintiff with having murdered her son, and caused plaintiff to be arrested and prosecuted on said charge thereby greatly injuring him in his good- name, reputation,, and standing in the community in which he lived; that notwithstanding plaintiff was discharged upon a hearing duly had according to law, the defendant wrongfully and maliciously, and -wholly without cause, thereafter continued to falsely charge and assert that plaintiff was guilty of murdering her son. 'Upon the trial' verdict was rendered in favor of plaintiff. From an order granting a new trial plaintiff appeals.

The order granting a new trial specified as grounds therefor: First, that the court committed error in law in 'not granting defendant’s motion to direct a verdict in her favor, the undisputed evidence showing that she mlade a full and fair statement of all material facts then known to her to an attorney at law, who advised the prosecution; second, that the prosecution was at the instance of the state’s attorney who, after personal investigation, advised the same, not relying upon the statements of the defendant, and that the -court erred in not directing a verdict in her favor on this ground; third, that a fair and impartial trial was not had on the merits by reason of the misconduct of attorneys *226 who participated in the trial; that bitter and offensive differences of the attorneys continually diverted the attention of.the jury and the court from the issues.

[1] We.are of the opinion that the learned trial court erred in granting a new* trial on either of the first or second of said grounds. This court in Jackson v. Bell, 5 S. D. 257, 58 N. W. 671 , adopted the rule:

“That when a party communicates to counsel in good standing all the facts bearing upon the guilt of the accused of which he has knowledge, or could have ascertained by reasonable diligence, and in good faith acts upon the advice of such counsel in prosecuting the party accused, he cannot be held responsible for malicious prosecution.”

[2] 'Whether or not a party communicates to counsel all the facts bearing upon the guilt of the accused known to him, or whether or not the accuser in good faith acted upon the advice of such counsel, are questions of fact to be determined from evidence. Likewise, whether or not the state’s attorney based the prosecution on his'personal investigation or on the statements of the accuser is also a question of fact to be determined from evidence. Malloy, v. C., M. & St. P. Ry. Co., 34 S. D. 330, 148 N. W. 598 . We are of the opinion that the evidence in this case on these propositions was of such a conflicting nature that different persons might reasonably have drawln opposite conclusions therefrom, and therefore were questions for the jury to determine. As this case must be retried, we deem it inadvisable to quote from the evidence or further refer thereto.

[3-6] We are not satisfied that the trial court abused its discretion in granting a new trial on the ground of misconduct of attorneys. It appears from the record that there were many bitter and offensive disputes between opposing attorneys 'during the trial, which occurrences constantly had a tendency to divert the attention of the jury from the issues. There was a large audience in attendance which evidenced approval or disapproval of the remarks of attorneys during such disputes by cheers and other boisterous demonstrations, which, no doubt, had some effect upon, or might have had some improper influence upon, the jury. It is an error on the part of the trial court *227 to permit such conduct by attorneys or audience. The decorum of the courtroom during a public trial is in the hands of the trial judge, who at all times has appropriate power and means at hand for effectually suppressing all such misconduct. It is his privilege and his duty to exercise such power on such occasions. It appears that the chief offender among the attorneys for respondent was a resident of another state, who could only take part in the trial by permission of the court. 'Such permission might easily have been withdrawn. 'An audience that will not observe proper decorum can easily be cleared from the courtroom. It is also the duty of the trial court to at all times protect. attorneys engaged in a trial from improper attacks of opposing counsel. Attorneys who are afforded no such protection are apt to resort to drastic measures in defense of their rights, and the rights of their clients. Clients may ■ sometimes suffer by the improper conduct of their own attorneys, and .ordinarily are not entitled to any relief by reason thereof at the hands of the court, but wte are of the view that the improper conduct of an attorney may be such as to greatly prejudice the rights of a client, and that a mistrial of the issues may occur on account of such misconduct that would warrant the trial court in granting a new trial. The trial court in such cases is better able to judge in relation thereto than the appellate court. A trial court, outside of the provisions of section 2558, ¿Rev. Code 1919, -no doubt has an inherent power to grant a new trial when of the view that the conduct of the trial was such as to amount to a clear mistrial or a clear miscarriage of justice.

In this case the third ground assigned for granting the new trial discloses that the trial court was of the view that the error of the court in permiting the misconduct of attorneys and audience was such as to deprive the parties of a fair and impartial trial. We are of the view that where the trial court is satisfied there has been a mistrial, or a clear miscarriage of justice, growing out of a failure of the court itself to discharge the duties of its office, the court has inherent power to grant a new trial by reason thereof at any time while the question of a new trial is pending before him, and' on, this ground he may grant a new trial, without application or motion by either party, wholly upon his own motion. We are of the *228 opinion that the record in this case does not show abuse of judicial discretion in granting the new trial onthe ground of misconduct.

The order appealed from is therefore affirmed, at respondent’s cost.