The defendant was convicted of the crime of rape, alleged to have been committed on one Dora Irwin, a female child, who at the time of the alleged offense was of the
The offense is alleged to have been committed at Meadows, in the county of Washington, on the fourth day of July, 1902. Defendant appeals from the judgment, and from an order denying his motion for new trial, and in this court the two principal questions, as presented for our consideration, are: “1. That the court erred in refusing to instruct the jury that it was necessary for the prosecution to prove that at the time of the alleged offense the prosecutrix, Dora Irwin, was not the wife of the defendant, and that the court erred in refusing to grant a new trial upon the ground that the evidence did not show that said Dora Irwin was not at the time of the commission of the alleged offense the wife of defendant. 2. Misconduct on the part of the assistant prosecutor in the repeated asking of certain questions on cross-examination of the witness Daniel Irwin imputing to the defendant other like crimes, and to the rulings of the court in permitting such questions to be answered.”
Counsel for defendant contend that under the provisions of section 6765 of the Revised Statutes, as amended, it is necessary for the information to allege that the female upon whom the offense is charged to have been committed was not at the time thereof the wife of the defendant, and that the court should have instructed the jury that it is necessary for the state to prove such fact the same as any other fact in the ease. We are not called upon in this case to pass upon that question, for the reason that the information charges that the offense was committed upon “one Dora Irwin, a female, not the wife of him, the said William Irwin,” and the court instructed the jury that such fact must be proven and we think it was proven. In instruction No. 8 we find the following language: “To warrant a conviction of the defendant, therefore, of the crime charged in the information, to wit, rape, the state must prove beyond a reasonable doubt: .... 2. That at said time the said Dora Irwin was a female child under the age of eighteen years, and not the wife of the defendant.” We have carefully examined the record in this case, and think the evidence as given by the defendant himself
The second contention of the defendant, however, is a much graver question, and one on which we have examined many authorities .before arriving at the conclusion which we are compelled to announce in this case. The defendant called his son, Daniel-Irwin, as a witness, and examined him, and thereupon he was cross-examined by the assistant prosecutor, and, among other things, we find that in the course of such cross-examination the following' questions were put, and answers, objections, and’rulings-by the court were made: “Q. Did you not, in the course of that conversation with Mary Phillips, say also,, in substance and effect, that you suspicioned your father of. having done the same thing with other girls, mentioning one of your family? -A. No, sir. Q. You,swear to that? A. Yes, sir. Q. Did you not on that occasion cry bitterly ? A. I might have Shed a few tears; but very'few, I think. Q. Did you not, in the course of that conversation with Mary Phillips, say also, in substance and effect, that your father’s actions with the 'other girl¡ — with the member of the family referred to — had 'caused your mother’s death? Mr. Irwin: We object to that as immaterial, incompetent, and irrelevant, and not proper cross-examination of the witness. (Objection sustained.) Q. Did you see Miss Phillips since you have been here in Weiser ? A. Yes, sir. Mr. Irwin: At this time we wish to take an exception to the special counsel for the prosecution in propounding questions to the witness, as being an invasion of the rights of the defendant, and for the purpose of attempting to prejudice the rights of the defendant in this action, being a matter not relevant) and pertaining to no matter under discussion before the court. The Court: The court sustains objections to such ¡questions as the court deems improper. Mr. Irwin: I am,not making any- objections as regards the court. I am -taking an ¡exception particularly to the conduct of counsel'in that particular mattbr.in embodying in his questions the same elements to
We are cited to a great many authorities discussing the conduct of prosecutors and rulings of the courts upon questions very similar to the one at bar. In the case of People v. Wells, 100 Cal. 459, 34 Pac. 1078, McFarland, J., speaking for the court in discussing the conduct of the prosecutor in asking the defendant on cross-examination if she had not committed a like offense in another state, says: “It would be an impeachment of the legal learning of the counsel for the people to intimate that he did not know the question to be improper and wholly unjustifiable: Its only purpose, therefore, was to get before the jury a statement in the guise of a question that would prejudice them against appellant. If counsel had no reason to believe the truth of the matter insinuated by the question, then the artifice was most flagrant; but if he had any reason to believe in its truth, still he knew that it was a matter which the jury had no right to consider. The prosecuting attorney may well be assumed to be a man of fair standing before the jury, and they may well have thought that he would not have asked the question unless he could have proved what it intimated if he had been allowed to do so.....Where the clear purpose is to prejudice the jury against the defendant in a vital matter by the mere asking of the questions, then a judgment against the defendant will be reversed, although.objections to the questions were sustained, unless it appears that the questions could not have influenced the verdict.” In People v. Bowers, 79 Cal. 415, 21 Pac. 752, the defendant was prosecuted upon the charge of murder. The supreme court of California, in discussing the conduct of the prosecutor in stating matters in the presence of the jury which were not borne out b'y the record, said: “Still more objectionable was the conduct of the prosecuting attorney. It is true, the court properly interfered, rebuking the attorney and instructing the jury to pay no attention to the statements. But the statements were well calculated to influence the jury in a case of this character, and it is impossible for us to say
It will be observed from the foregoing authorities that the-courts do not look with favor upon the action of prosecutors in going beyond any possible state of facts which can be material as to the guilt or innocence of the defendant in a particular ease for which he is on trial. Prosecutors too often forget that they are a part of the machinery of the court, and that they occupy an official position, which necessarily leads jurors to give more credence to their statements, action, and conduct in the course of the trial and in the presence of the jury than they will give to counsel for the accused. It seems that they frequently exert their skill and ingenuity to see how far they can trespass upon the verge of error, and generally in so doing they trespass upon the rights of the accused. It is the duty of the prosecutor to see that a defendant has a fair trial, and that nothing but competent evidence is submitted to the jury, and above all things he should guard against anything that would prejudice the minds of. the jurors, and tend to hinder them from considering only the evidence introduced. When he has submitted all the facts in the case to the jury he should be content, but he should never seek by any artifice to warp the minds of the jnrors by inferences and insinuations. In the case at bar it is apparent at once that the questions of the special prosecutor were calculated to prejudice the jury, and lead them to believe that the defendant who was then on trial was a bad and dangerous man in a community, and that he had been guilty of a similar offense prior to the one alleged, and that his conduct with other young girls had brought about the death of his own wife; and this was sought to be made more forcible by asking the defendant’s son if he had not made such statement himself — facts which were wholly foreign to the case upon trial.
Another thing which appears in this case, and makes the error more prejudicial to the rights of defendant, is the fact that the evidence was of the most conflicting and unsatisfactory character; so much so that we cannot doubt that the conduct of counsel and the incompetent evidence admitted did actually prejudice defendant.
It is urged by the attorney general that an exception to the action of the assistant prosecutor and the rulings of the court was not properly saved. We are unable to agree with this contention. The record above quoted shows that defendant’s counsel twice objected to the questions, and once took exception to the action of counsel for the state in persisting in substantially repeating the question. Attorneys should be careful in making their objections and saving their exceptions, but we think they have sufficiently done so in this ease.
After the defendant had rested his case, the state examined the witness Mary Phillips in rebuttal, and asked her if she had had such a conversation with the witness Daniel Irwin as had been set forth in the question asked of Irwin, and she answered in the affirmative. The defendant assigns the admission of this evidence as error. The record, however, does not show any objection made to the question, but it is well enough here to observe that the evidence was clearly inadmissible as against the defendant, and the fact that it was given under the guise of impeachment of the witness Daniel Irwin did not make it oompetent.
The judgment of the district court is reversed, and cause remanded.