It may be, as suggested by Mr. Justice Dunlap, that the record produced in support of charge of error in limiting argument of counsel, is rather too meager upon which to predicate a reversal of the judgment. Upon that theory, which appears to be entertained by my associates, I am concurring in an affirmance of the judgment. I want to be understood, however, as disapproving the theory announced by the trial court, as appears from the record, wherein he stated to the counsel and the jury: "the court intended to rule and does now put in the record this ruling that it is not the function of counsel to state to the jury that under the law certain evidence is not sufficient to sustain the conviction as a matter of law."
Of course it is the function and duty of the court to instruct the jury as to the law and to instruct them that they are to take the law from the court and not from the argument of counsel. On the other hand, counsel who is arguing the case is presumed to be reasonably well familiar with the law applicable to the case and, at any rate, has a right to argue the case on the theory that the law is as he understands it to be and, at the same time, demonstrate if he can to the jury, that the evidence is not sufficient to meet the demands of the law in any particular respect in which he is attacking the sufficiency of the evidence. Here, according to the statement of counsel as appears in the record he "suggested that the court would instruct them as to the law, and if the court would instruct them as to the law and along the line that I anticipated that then it would be necessary for the jury to have additional proof of the commission of the offense other than the testimony of the accomplices themselves, . . ." *Page 221
It was clearly and unmistakably proper for counsel to make argument along the lines indicated by his offer.
The right of trial by due process of law guaranteed by the constitution would be of little avail, if an accused or his attorney can be denied the right to discuss the evidence adduced in his case and its weight and sufficiency as measured by the recognized rules of law.
Evidence may be desultory or confusing. It may be in some instances consistent with divergent theories, according to the understanding of the trier of facts. Counsel has a right, and it is his duty, to analyze the evidence and point out its legalas well as probative weight and value. To deny that right is a denial of due process.
"A hearing, in its very essence, demands that he who is entitled to it shall have the right to support his allegations by argument however brief; and, if need be, by proof, however informal."
(Londoner v. Denver, 219 U.S. 373, 386, 52 L. ed. 1103; 1112;Windsor v. McVeigh, 93 U.S. 274, 23 L. ed. 914.)