The defendant was indicted for the murder of Barbara Citawatca, his step-daughter, a child about three years of age. He was found guilty of murder in the second degree, and sentenced to imprisonment in the penitentiary for a term of twenty-one years, and has appealed to this court from the judgment. .
The evidence for the State consisted of threats made by the defendant against Barbara, and of a course of the most brutal treatment of the child hy the defendant, extending through a period of several months. Finally, on the morning of October 17th, 1876, Barbara was found lying on the hearth dead, with evidences on her body that her death was occasioned by burning. There was evidence tending to prove that defendant was guilty of murdering the child.
If the witnesses for the State testified to the truth, he was guilty of a willful, malicious, premeditated and deliberate murder. There is not in the record a scintilla of evidence to authorize an instruction to the jury in regard to any crime except that of murder in the first degree.
The principal witness for the State, Jacinsky, testified to having seen defendant, on several occasions, hold the child in a perfectly nude state before a strong fire, until its skin was burnt red, and she writhed in her torture like a worm; and this in his presence, and in the presence of Barbara’s mother, without so much as a word of remonstrance from either; that he had seen the defendant kick the child, beat her with sticks and throw her out of the house, and that, on one occasion, her nose was broken by the
Another complaint made by appellant is, that the court permitted the prosecuting attorney, in his closing argunient to the jury, to say: “ Mahly was 011 the stand, why did he not tell us how the wag kurne(J ? It Was incumbent On him to show how these things were. • Did he tell us how she was hurt? It was incumbent, on him to prove how she was hurt. The defendant was there, master of his own house, and it was incumbent on him to show that he did not inflict the burns.” Again he said to the jury in that closing argument: “ The preponderance of testimony was in favor of conviction and against the defendant, and upon such evidence they (the jury) must convict.” Every one of these declarations was a gross misrepresentation of the law, and such conduct on the part of the prosecuting attorney has so often been condemned by this court, that the hope was indulged that the admonitions given would be heeded. It is not for prosecuting attorneys to declare the law to the jury. That is the duty of the court, and the State’s attorney is as much bound by the law as declared by the court as are the jury and the accused. The court declared the law, but the prosecuting attorney, not satisfied with the instructions given by the court, made declarations of law to the jury in conflict with those given by the court, and manifestly and palpably erroneous. Can we say that the prisoner was not prejudiced by this conduct of the State’s attorney ? If he knew the law and made these •declarations to the jury in order to procure a conviction, his conduct was very reprehensible. If he knew no better, he should have accepted the law as given by the court.
It was not error to permit the State to prove the conduct of the defendant toward the child, prior to the time ^ commission of the murder, as alleged in the indictment. It was admissible to show malice, premeditation and deliberation; malice may be proved by acts as well as by threats.
the judgment is reversed and the cause remanded.
Reversed..