I concur in the opinion of Mr. Justice Fraser, concurred in by Mr. Justice Watts, that the judgment of the lower Court should be reversed; but in view of the fact that the distinguished members of this Court have divided equally, I deem it advisable to set forth the reasons which lead me to that conclusion.
All of the exceptions should be overruled, in my opinion, except those numbered 3 and 9. The third exception is based on the refusal of the presiding Judge to require the Solicitor to make the opening argument to the jury under rule 59 of the Circuit Court. This rule is correctly set forth in the opinion of Mr. Justice Fraser, and it so appears in an appendix to the Code of Civil Procedure, 1922. It seems to the writer that the true construction of the rule is made apparent when its actual terms are examined, and when it is observed that the reference is to "points made and authorities cited," it seems clear that it is not the purpose of the rule to refer solely to questions of law. Unless, therefore, *Page 473 there is some authority requiring a different conclusion, the Solicitor should have been required to "disclose his entire case," the form of the rule being absolute and providing for no deviation. Similar rules are in very general use, and there is nothing in the rules of the Circuit Court to suggest that rule 59 applies solely to the Common Pleas, and not to the Court of General Sessions. It is but fair that the party who has the advantage of the last address to a jury should be required to open and apprise the opposing party of his views as to his entire case. I would not be understood as expressing the opinion that the trial Judge has no discretion whatever with reference to the rules of the Court, but in Barnettv. Gottlieb, 98 S.C. 180; 82 S.E., 406, this Court says unequivocably that the trial Judge "had no right to suspend or change rule 59 of the Circuit Court." So far as the rule before us in this case is concerned, therefore it is clear that the presiding Judge's discretion should have reference solely to the degree of compliance with the rule. Having no authority to suspend or change the rule, it lies within the discretion of the presiding Judge to determine whether the requirements of the rule have been met.
The power to make its own rules is conferred upon the Circuit Court by Section 33, Code of Procedure, 1922, and when a rule so made is not repugnant to or in conflict with law, it has all the force of law and must be complied with. 15 C.J., 909. The Circuit Court having the power to make its own rules, there is doubt that this Court has power to suspend them in a particular case. 15 C.J., 914.
In Gadsden v. Sands, 115 S.C. 205; 105 S.E., 286, the decision apparently supports the trial Judge, who had refused to require the plaintiff to open. It is obvious, however, that this Court was under the impression that the question to be decided was whether or not the defendant was entitled to open and reply. A careful reading of the case indicates that the point involved was practically the same as *Page 474 that in this case; but in view of the reasoning pursued in the opinion, I cannot accept the decision as settling the point before us. The authority of that case is not questioned, but the reasoning of the Court indicates clearly that there was no purpose to hold that the presiding Judge was right in refusing to require the plaintiff to open the argument as provided in rule 59.
Of course, there is no purpose here to suggest that this rule may not be waived by acts or suspended by consent of the parties. It is desired to make it clear, however, that the plaintiff has not the right to waive the rule and require the defendant to open while reserving the right to himself to close. If he wishes to close, he must also open.
As to the fourth and fifth exceptions, I concur in the opinion of Mr. Justice Cothran. Great latitude is necessarily allowed lawyers in argument, and while the practice followed by many gentlemen of the bar or avowing their personal belief in the good faith of their client and the justice of their cause, and by the opposing counsel of denouncing their client's adversary and asserting the utter absence of right in him, is not to be commended, I do not think that the Solicitor in this case so far exceeded legitimate argument as to entitle the defendant to a new trial for that reason. Such declarations do not constitute argument, but due allowance should be made in the circumstances for the zeal of an attorney making an argument before a jury. It is recognized, however, that a case may arise where a different result should be reached.
As to the ninth exception, I dissent from each of the opinions heretofore filed. It should be noted that the defendant's main defense was that he did not know that the jugs mentioned in the evidence contained liquor. While the jury was not obliged to accept this testimony, it nevertheless related to an essential element of the offense charged. When the presiding Judge, therefore, said "there is no evidence here of that," he rejected in the hearing *Page 475 and presence of the jury the evidence furnished by the defendant himself as to his knowledge of the contents of the jugs. Although his Honor's remark was probably an inadvertence, it was nevertheless prejudicial.
The judgment should be reversed, and the case remanded to the Circuit Court for a new trial.