the manifest prejudice of the opposite party, it is the duty of the judge to stop him then and there. And if he fails to do so, and the impropriety is gross, it is good ground for a new trial.' See also State v. Williams, 65 N. C. 505," citing Tucker v. Henniker, 41 N. H. 317. "The ninth error assigned is, 'that the court erred in permitting the State's attor ney to argue in reference to the conviction of another person for another murder, as appears from the bill of exceptions.' In the bill of exceptions the following facts appear: The State thereupon rested its case, and the defendant offered no evidence or testimony, and in the argument before the jury the State's attorney said : ' Because I say, and with all the earnestness with which I am capable, that there never was to my reading or knowledge a case of circumstantial evi dence where every link was so perfect, where the facts were so overwhelming, and when the presumption of guilt was so startling in its conclusions, as in the case before you. If we cannot convict on this testimony, then there is a man under verdict of murder in the first degree, now incarcerated in that jail, who ought to have the door of his prisonhouse opened, and — ' By Mr. Foster: 'I object to his stating what is not in the evi dence.' By the Court : ' He is only using it as an argument.' By Mr. Foster : ' Well, I except to that style of argument being used.' Mr. Abrams then said : ' I will suppose a case. I say there is the case of Palmer, which the learned writer stigmatizes in the severe language I have read to you — he says of him : ' He was a model of physical health and strength, and was courageous, determined, and energetic. No one ever sug gested there was a disposition toward madness in him; yet he was cruel, as treacherous, as greedy of money and pleasure, as brutally hard-hearted and sensual a wretch as it is possible even to imagine.' Now you don't find verdicts by comparison with verdicts in other cases, nor am I telling you what the
testimony in that case was, but I am only stating to you that if this man were declared innocent no others should be punished.' . . . "If the remarks so made by counsel were pertinent in argument, they were proper for the consideration of the jury when they have retired to deliberate upon their verdict. His illustrations of the man convicted of murder, now in jail, who should be released, if no conviction was found in this case, and the other of the man Palmer, a supposititious case, were entirely outside of the record and the evidence, and were calculated to preju dice the rights of the accused. The court, in answer to an objection interposed by counsel for accused, said ' he is only using it as an argument/ thus emphasizing the position taken by the State's attorney, and giving it the force and weight of its approval." A new trial was awarded. In Hardtke1'. State, 67 Wis. 552, it was said: "On the argument of the cause to the jury, the district attorney said : ' The defendant confessed this crime to me.' To this remark and others the defendant's counsel objected, and excepted, and the record does not show that the court gave it any attention whatever. It is true that the court did not affirmatively rule on this objection of the defendant's counsel, but by its silence the jury might have well understood that the court approved of it, or at least thought that there was noth ing objectionable in the remark. It was so clearly not a correct statement of the facts proved that we think it was the duty of the court to have corrected it then and there. It was very material. There had been no evi dence of one of the principal ingredients of the crime; and if this statement of the district attorney was accepted by the court and jury as true, it supplied all defects in the testi mony, and was a full confession of the crime. With the errors already noticed in this most extraordinary trial, we cannot but think that this omission of the court to correct such a material and important misstatement of the evidence was also erroneous."
