of cohabitation, to consider the peculiarities of the Mormon church organization. There was also danger that the jury might infer that the defendant was in some way connected with the loss of the book inquired after, when there was no proof on that point. But as the record discloses that the defendant did not see fit to avail himself of his right to move to strike out the testimony, and did not object to many portions of it that were clearly inadmissible, it, therefore, is not necessary to further consider this testimony at this point, and it is only mentioned at this time on account of the bearing that it will be seen to have on this case, when we come to consider some further developments in it, and also the charge of the court and the requests for instructions that were presented by the defendant.

3. The next point that is made by the defendant is of more importance. After the evidence had been closed, the assistant district attorney, in making the closing argument for the prosecution, stated to the jury, in substance, that it was within the power of the defendant to show all the facts in his defence, by his wives and children, but that it was not in the power of the prosecution to show the facts by them, because they had been put out of the way by the procurement of the defendant. One of the counsel for the defendant objected to this line of argument, and the court thereupon remarked, "I suppose there is no evidence as to how they were put out of the way?" All the testimony taken in this case before the jury is brought up by the record, and it discloses that there was no evidence, but that the persons referred to had not been put out of the way by the procurement of the defendant, or by anybody else, and the court was therefore in error when it said, "I suppose there is no evidence as to how they were put out of the way," because that remark could not have failed to convince the jury that it was clearly the opinion of the court, that the persons referred to had been put out of the way somehow, and instead of curing the error caused by the remarks of the district attorney outside of the record, it added additional error, and gives additional ground to the defendant upon which to base his claim for a new trial. A

judge has no right to express his opinion upon the facts of the case in the hearing of the jury, in a manner that will have a tendency to affect their verdict. The rule is laid down in many well considered cases, that it is not proper for the judge to make remarks in the hearing of the jury, calculated to influence their finding: Kelly v. Borland, 78 Ill., 438; Furham v. Huntsville, 54 Ala., 263; Wannack v. Mayer, 53 Ga., 162; Hasbrouk v. Milwaukee, 21 Wis., 217: Cronkhite v. Dickerson, 51 Mich.

It appears by the record that after the judge had made the remark that I have quoted, the district attorney made no further comment on that subject. It also appears that at another part of his argument he stated to the jury that during the trial of the case an outsider had come into the court-room and made signals with his fingers, as a means of telegraphing to the jury. The defendant's counsel interrupted him and called him to order, upon which the court said: "that can be attended to afterward," and thereupon the district attorney ceased to comment upon it. The prosecution contends that the remarks referred to were made in the heat of argument, without any thought of traveling outside the record, and with no purpose or intent to mislead the jury in their consideration of the case. The prosecution submits that the improprieties complained of were inadvertant; that they were not the result of mature deliberation, and that they were not continued. All of which I am glad to concede, but the fact that the remarks were inadvertently made, would not remove their natural effect upon the jury. The prosecuting officer, representing and standing for the government, by reason of the very position that he occupies, has more weight and influence with the jury than private counsel. He is supposed to have no more interest in the case, than that justice may be done between the government and the prisoner at the bar. He is supposed to be impartial in his investigation of crime, and in his efforts to suppress it. Upon the one hand, he is not to let any guilty man escape; upon the other hand, he is not to allow any innocent man to be convicted. On this account, his words to the jury being presumed by the law, and by the people, for that matter,

to emanate from an unprejudiced and unbiased mind, his statements have infinitely more weight, and his remarks should, therefore, be more guarded than those of an attor ney who appears in behalf of the defendant. A prosecuting attorney is not a plaintiff's attorney, but a sworn minister of justice; as much bound to protect the innocent as to pursue the guilty: Wellar v. People, 30 Mich., 23.

His position is one involving a duty of impartiality, not altogether unlike that of the judge himself. The position is a trying one, but the duty, however, exists: Meister v. People, 31 Mich., 104.

He represents the public interests, which can never be promoted by the conviction of the innocent. His object, like that of the court, should be simple justice, and he has no right to sacrifice these to any pride of professional success, and however strong may be his belief in the prisoner's guilt, he must remember that though unfair means may happen to result in doing justice to the prisoner in the particular case, yet justice so attained, is unjust and dangerous to the whole community; Hurd v. People, 25 Mich., 416.

That the remarks of the assistant district attorney were calculated to work injury to defendant and were error, I do not think can be successfully denied. But it is argued that no exception was taken at any time, that there was nothing to except to, that the court was asked to interfere and did so, and that thus the application of the defendant was granted, and that the matter has no place in the record and cannot be considered by the court. It would seem to be too clear for argument that the matter is subject to review by the supreme court. The supreme court has supervisory jurisdiction over the district courts, and whenever it appears that a defendant has not had a fair trial, or that the trial has not been conducted in accordance with the settled rules of law, this court has the power to review the proceedings and to order a new trial. There are many cases in the books in which it has been held that points similar to the one under consideration would be considered by an appellate court. See Scripps v. Reilly, 35 Mich., 391, and cases there cited. It has been many times ruled

that counsel, in argument, must not seek to influence the jurors by reference to the matters in the nature of evidence not in proof before them, and that the trial judge should promptly repress the attempt as something reprehensible: Bullock v. Smith, 15 Ga., 395; Scripps v. Reilly, 35 Mich., 391; Berry v. State, 10 Ga., 511; Mitchum v. State, 11 Ga., 615; Dickerson v. Burke, 25 Ga., 225; Read v. State, 2 Ind., 438; Tucker v. Henniker, 41 N. H., 317; Kennedy v. People, 40 Ill., 488; Hutch v. State, 8 Tex. Ct. App., 417; Austin v. People, 102 Ill., 264; Fox v. People, 95 Ill., 78; Angelo v. People, 96 Ill., 213; Conn v. People, 11 Tex. Ct. Ap., 400; Lanbach v. People, 12 Tex. Ct. App., 590; State v. Kring, 2 Am. Crim. Law Rep., 314; State v. Smith, 1 Am. Crim. Law Rep., 581; Ferguson v. State, 1 Am. Crim. Law Rep., 582; State v. Graham, 17 N. W. Rep., 192.

It has been held that where counsel have traveled outside of the record in addressing the jury, that the error was not cured even by an instruction to the jury not to consider the matter: Morton v. Ordnorf, 22 Iowa, 504; State v. Whit, 5 Jones, N. C., 224.

It is the chief duty of the trial judge to secure fair play to litigants, and, so far as practicable, to shape the order and course of the proceedings in such a way, that neither party will be put to a disadvantage not due to his case or its mode of management by his counsel. The rules of the court, and what is called the course of the court, have their origin in the purpose to secure fairness in legal controversies, and the order of business and the regulated succession of steps at trials have the same object. The courts have usually been very firm in confining counsel within proper bounds and guarding jurors against unfair and irregular acts and endeavors, and parties have been deprived of their verdicts upon evidence merely indicating the operation of influences about the outskirts of the trial: Scripps v. Reilly, 35 Mich. 390.

It was stated in Tucker v. Henniker, 41 N. H. 322, that it would be utterly vain and quite useless to caution jurors in the progress of a trial against listening to conversations out of the court room in regard to the merits of the case,

if they are permitted to listen in the jury box to statements of facts not in evidence calculated to have a bearing upon their judgment, enforced and illustrated by all the eloquence and ability of learned, zealous and interested counsel.

Considering in connection with the remarks of the prosecuting attorney complained of, the fact of the weakness of the testimony, the immaterial evidence received from the witnesses Brown and Warburton, and the remarks of the court upon the objection made to the line of argument of the district attorney, I am forced to the opinion without going any further that there is error in the record, and that a new trial should be granted without any hesitation. It may be that this defendant should be convicted, but the fact that he should be convicted, if such is the fact, does not deprive him of his right to a fair trial according to the law and the evidence.

4. The trial having taken the course that I have indicated, it became the duty of the court, when it came to charge the jury, to very carefully guard the rights of the defendant, and to clearly draw the attention of the jury to the real issue in the case, and inform them that outside matters and irrelevant testimony should not be considered by them. The testimony proper for their consideration should have been pointed out, and the matters and testimony that the jury ought not to consider should also have been called to their attention, but the charge of the court fails to do this. The attempt made to cure the errors that I have indicated was not sufficient. Each and every instruction requested by the defendant is refused, many of them being clearly proper, some being calculated in a slight degree to cause the jury to disregard the matters that had been improperly brought to their attention. The charge simply states the offense, tells the jury that it is brought under a section of the statute of the United States, which is read to them; that the defendant is presumed innocent until proven guilty beyond a reasonable doubt, and that if the jury believe from the evidence, beyond a reasonable doubt, that the defendant, between the dates named in the indictment, lived with the women named therein, or