License of Speech of Counsel. sustain the general reputation of the defend ant. This was made the basis upon which the prosecutor said in argument that he had personal knowledge of the fact that defend ant was reputed to be a hotel thief, and that he had been published and portrayed in the 'Police Gazette' as such. The speech of the prosecutor went entirely beyond the bounds of propriety in that respect. It cannot be justified. There was a bare shadow of excuse for it in what was said by the defend ant's counsel. The remark should have been promptly withdrawn from the jury, and the court should have admonished both the jury and counsel, in no uncertain terms, in respect to their duty in that connection. This was not done. The evidence in the record, how ever, fully sustains the verdict of the jury, and there was a shadow of excuse for the remarks. Under such circumstances, we have concluded, after some hesitation, that a reversal ought not to follow. Upon the evidence in the record, it seems to us that a conviction was at all events inevitable, and as the punishment assessed does not seem to have been out of proportion with the offence, we cannot see that there could have been any prejudice to the substantial rights of the appellant. In such a case we are not authorized to reverse." In Moore v. State, 21 Tex. Ct. App. 666, a trial for assault with intent to commit rape, the district attorney, in his address to the jury, made use of the following language : "Gentlemen of the jury, a good jury of your county convicted the defendant of the offence with which he is now charged, upon a former and a previous J indictment, and his attorneys appealed it to the Court of Appeals upon a trifling technicality in drawing the indict ment; and that court reversed the case, and by taking advantage of this trifling techni cality, without merit, he has caused your county great expense, which comes out of the pocket of every good tax-payer, your1 This tautology reminds me of a witness whom I heard testify that he had "seen the defendant write fre quently and often." 66
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selves among the rest; and now, in view of these facts, I ask you to give him such a term in the penitentiary that will make up for this great expense he has caused upon a mere technicality." (It is a little difficult to understand how " this great expense " could be " made up " by subjecting the State to the maintenance of the prisoner for a term of years.) A new trial was granted for this, the court observing: "In many decis ions this court has urged upon counsel, whose duty it is to prosecute the pleas of the State, to refrain from injecting into trials of cases of this kind any matter calculated to inflame the minds or excite the prejudice of the jury. If we could add anything to what has been said, or could use any language calculated to reach the minds and consciences of those to whom such admonitions are addressed, we would avail ourselves of the present occasion so to do. As we cannot, we can only reverse and remand the case, in the hope that the accused may secure a fair and impartial trial, according to law and according to those methods, alike ancient and honorable, which still obtain in all enlightened courts." In Newton i: State, 21 Fla. 53, the prose cuting attorney made a statement as to what a witness had told him out of court. The court said : " Instead of calling witnesses to impeach the witness, Cowan, Mr. Wilson makes his statement to the court and jury. 'Statements of fact, not proved, and comment thereon are outside of the cause; they stand legally irrelevant to the matter in question, and are therefore not pertinent. If not pertinent, they are not within the privilege of counsel.' In State v. Underwood, 77 N. C. 502, the court say: 'We have in some cases ordered a new trial on account of the abuse of privi lege by counsel, and will always do so when it seems probable that the defendant has been prejudiced on his trial by such abuse.' In Jenkins ï'. North Carolina Ore Dressing Co., 65 N. C. 563, the court uses the following language : ' But still it may be laid down as law, and not merely discretionary, that where the counsel grossly abuses his privilege to
