¶1delivered the opinion of the Court.
¶2The appellant was tried and convicted in the Circuit Court of Franklin county, upon two indictments, for selling spirituous liquor to a negro. The appeal was, by consent of counsel, transferred from Marianna to Tallahassee, and has been argued at this term of the court. In the-one case, the only error assigned is the refusal of the Judge who presided at the trial to permit the counsel for the prisoner to conclude the argument before the jury. In the other case, the same error is assigned, with several others, which it becomes unnecessary to consider, inasmuch as the views which we entertain upon that point are decisive-of both cases.
¶3The statute (Pamph. Laws of 1852-3, page 116) provides, that “ in all cases wherein the defendant upon his trial introduces no testimony, he shall, by himself or counsel,*75be entitled to the concluding argument before the jury, as is now the practice in the trial of civil cases.”
¶4On the part of the appellant it is insisted that the force and effect of the statute is the .grant of a positive right, which it is not in the power of the court to disregard or abridge. For the State, it is contended by the Attorney General, that it was the evident intent and object of the statute to assimilate the practice in this particular in civil and criminal proceedings, and that in the absence of a rule of court giving that privilege in civil proceedings, the statute is wholly nugatory. It is further insisted, that even if the practice on the civil side of the court should be found to have accorded this privilege, yet that being a mere matter of practice and within the discretion of the court, a denial of the right is not such an exception as that error can be predicated upon it.
¶5Without undertaking to determine what is or ought to be the practice of the circuit courts in civil cases, we have no hesitancy in saying that the statute was intended to secure to the defendant the right to conclude in criminal cases, where he introduces no testimony, and that the requisition is mandatory. As to the policy and propriety of the provision, it is not our province to determine. It is true that in the “ Buies of Practice” which have been framed for the government of the circuit courts, there is no rule prescribing the practice in this particular, yet by reference to the books on practice, it will be found that such a rule prevailed at common law. — (1 Arch. Practice 112.) Whether or not, in the absence of a positive rule on the subject, the circuit courts are bound by the common law rule, we do not decide, nor are we informed what is the practice in those tribunals in civil causes.
¶6On the second point made by the Attorney General, we find by reference to the case of Day vs. Woodworth, (13 *76How. S. C. Repts. 363,) in which it is ruled, that “ the right to open and close is so far dependent upon the discretion of the court below, that it is not the subject of a bill of exceptions.” By a careful examination of this case, it will be seen that the ruling of the court is based upon the assumption that the right here claimed was a mere “ matter of practice, and that the Circuit Court of Massachusetts had the right to make its own rules.” The decision is evidently placed upon the ground that error cannot be predicated upon the exercise of a discretionary power. If we are correct in our conclusion, that the right claimed in the cases before us, is one growing out of a positive enactment of the Legislature, and that it is mandatory in its character, then it is manifest that the authority referred to can have no bearing with us.
¶7The court is of opinion that the judge who presided at the trial of these cases erred in refusing to permit the counsel for the defendant to close the argument before the jury, he having introduced no testimony to support the defence. Therefore let the judgments pronounced in the two cases respectively be reversed, the verdicts be set aside and a new trial be had.