— The defendant was indicted for the murder of George Humphreys on the 20th of January, 1875, and was convicted of manslaughter in the second degree. On the trial of the cause, Mrs. Humphreys, widow of the deceased, was called as a witness for the State, and after she had testified, the State, against objection of defendant, was permitted to read as evidence to the jury her testimony taken before the justice of the peace on the preliminary trial of the accused. It certainly needs neither argument nor citation of authorities to show that such evidence was inadmissible, and upon what principle it was admitted we are at a loss to conjecture. It could not have been to impeach her, for she was the State’s witness. It could not have been used to refresh her memory, for it was read to the jury, and this after she had concluded her testimony. A deposition in a civil suit would- not have been admissible under such circumstances.
The evidence of threats made by deceased against the accused, was competent evidence, and the court erred in excluding it from the jury. State v. Alexander, p. 148, ante decided at this term, and cases there cited.
The prosecuting attorney, in his closing address to the jury, made the following remarks : “ Defendant’s attorneys know the law. "Why did they not prove defendant’s good character? He had not a good character, therefore they dare not attempt to prove defendant’s good character. They could not do it, and dare not attempt to do it.” A prosecuting attorney gets out of the line of his duty when, in his argument to the jury, he makes a statement of a ma
We shall not notice the other errors complained of but for the errror committed in permitting the State to supplement. the evidence of Mrs. Humphreys, with her testimony taken before the committing magistrate, and in refusing to permit the accused to prove the threats made against him .by the deceased; the judgment is reversed, and the cause remanded.
Reversed.