Conduct of the Judge. Where the judge leaves the court room without suspending ceedings, a new trial is granted, it being a deprivation of liberty without due process of law; People v. Tupper, 122 Cal. 424, 55 Pac. 125, 68 Am. St. Rep. 44; O'Brien v. People, 17 Colo. 561, 31 Pac. 230; Hayes v. State, 58 Ga. 35; such absence is reversible error; Smith v. Sherwood, 95 Wis. 558, 70 N. W. 682. But where the judge obtains the consent of the defendant's counsel to leave the court room, or his absence cannot prejudice the in terest of the defendant, a new trial is not necessarily granted; Pritchett v. State, 92 Ga. 65, 18 S. E. 536; Turbeville v. State, 56 Miss. 793; and it was held not error where the judge was absent only for a brief time, where the evidence demanded the verdict rendered, and the absence was known to coun sel, and there was no request made to sus pend the trial nor any motion for mistrial on his return ; Horne v. Rogers, 110 Ga. 362, 35 S. E. 715, 49 L. R. A. 176; contra, Ellerbe v. State, 75 Miss. 522, 22 South. 930, 41 L. R. A. 569.
Suggestions by the trial judge to the jury that in default .of agreement they be kept to the end of the term, to save expense to the county, are ground for reversal; North D. C. R. Co. v. McCue (Tex.) 35 S. W. 1080. There ought to be no communication between a judge and a jury after the latter have retired unless in open court and if practicable, in the presence of counsel ; Colorado C. C. M. Co. v. Turck, 50 Fed. 888, 2 C. C. A. 67, 4 U. S. App.
290. See PRESENCE; JUDGE; JUDICIAL POWER. As to the Conduct or misconduct of jurors in a trial, see JURY.
Comment by the Court on Testimony of De fendant. General instructions as to the credit to be given to the testimony of the accused are usually discouraged by the appellate courts whether the effect of it is to invoke the giving of credit to the testimony; Bryant v. State, 116 Ala. 446, 23 South. 40; U. S. v. Borger, 19 Blatch. 249, 7 Fed. 193; or of in ducing lack of confidence In it; State v. Wyse, 32 S. C. 45, 10 S. E. 612; State v. Bartlett, 50 Or. 440, 93 Pac. 243, 19 L. R. A. (N. S.) 802, and note where the cases on instructions as to the testimony of the accused person are collected and classified, 126 Am. St. Rep. 751.
Remarks of Counsel. Ordinarily exception does not lie to a remark of counsel, but to the refusal upon proper request to charge the jury with reference to it; Pressy v. R. I. Co. (R. I.) 67 Atl. 447; and if no exception is tak en, and no motion made with reference to such remarks, the objection will not be con sidered on appeal; Nelson v. Shelby etc. Co., 96 Ala. 515, 11 South. 695, 38 Am. St. Rep.
116; State v. Ward, 61 Vt. 153, 17 Atl. 483; State v. 63 Me. 128; and if the court requires the objectionable remark to be with drawn, the error is usually held to be cured; Dunlop v. U. S., 165 U. S. 486, 489, 17 Sup. Ct. 375, 41 L. Ed. 799. The abuse of the privi lege of counsel may be sufficiently objection able to warrant a reversal, though there was no interference by court or opposing counsel; Klink v. People, 16 Colo. 467, 27 Pac. 1062. It has been held error that irrelevant mat ter was discussed by counsel without objec tion from his opponent; Willis v. McNeill, 57 Tex. 465; Prather v. McClelland (Tex.) 26 S. W. 657; the duty of correcting the error of counsel in such cases is said to rest with the judge and not the opposing counsel ; Berry v. Georgia, 10 Ga. 511.
The latitude to be allowed to courts in de nouncing or rebuking counsel in a trial must be regulated largely by discretion, with the single limitation that it shall not prevent a fair trial; Williams v. W. Bay City, 119 Mich. 395, 78 N. W. 328; Laporte v. Cook, 22 R. I. 554, 48 Atl. 798; and the appellate court has no concern with the conduct or language in the trial court except to ascertain whether it constituted legal error; McDuff v. Detroit Even. Jour. Co., 84 Mich. 1., 47 N. W. 671, 22 Am. St. Rep. 673 ; it will not interfere with the discretion of the trial court unless that has been abused to the prejudice of the com plaining party; Gulf C. & S. F. It. Co. v. Curb, 66 Fed. 519, 13 C. C. A. 587, 27 U. S. App. 663; but where an attorney was fined for persisting in a style of questioning which had been forbidden by the court, it was held not to affect the conviction of his client in a capital case, and the attorney himself could not complain of it; Grant v. State (Tex.) 148 S. W. 760, 42 L. R. A. (N. S.) 428, with note, which contains an extensive list of remarks to counsel by the court which have been held to be or not to be prejudicial error.
Where, in an action for personal injuries, the counsel for plaintiff invites the jury to return a verdict for the defendant, if they find that the plaintiff is only entitled to nomi nal damages, and such verdict is returned, the plaintiff cannot complain that the evi dence did not support it; Langdon v. Clarke, 73 Neb. 516, 103 N. W. 62.
The English criminal evidence act of 1898 does not confer on a prisoner the right of giving evidence on his own behalf before the grand jury, nor does it deprive the court of the right to comment on the failure of the prisoner to give evidence at the trial; [1899] 1 Q. B. 77.