Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-09-22

hey be admittedly improper, the Case
ought not to be remanded on errors
ana technfcalities which could not
have Injured the defendant He was
recognized on the fsIal night By
TOWNSEND. Whldman and the deceass'
ed at the time he and the others M
dicted with him. robbed them He
was traced with the others by the
~ Xlcan coins taken from Townsend
ae. evidence. direct and circumstan-
..ai, showing their guilt was clear
Conclusive and uncontradicted His
only witness, physician and sur
geen. did not refute any of the pe-.
tinent facts. Regardless of the inn.
propriety Of the remarks of the At
tcrney for, the State, there could he
no doubt of his guilt and no onnor.
tunity for the jury to find any verdict
except the one of murder in the first
degree. The result would have been
the same ard consequently there was
no injury to the accused If there
had been a substantial conflict in the
evidence or any uncertainty regarding
the case proved by the State, a doubt
might arise in favor of the defendant
as to whether the jury had been
prejudiced or influenced in finding the
verdict by these comments, but the
lndisputed facts noint SO conclusive,
" to the guilt of the prisoner. that
they could not have arrived at a diff
ferent conclusion. Under such cir
cumstances neither reason nor justice
demands reversal of the case and
the occurrence of the delay and ex-
Dense of q rev trial.
IN
the Supreme Court quoting from the
decision in Austin People, 1U2 Ill.
264. said
I'VE do not see how this statute
can be completely enforced unless It
be adopted as a rule of practice, that
such improper and forbidden refe.-
ence by counsel fer the prosecution
shall be regarded good ground for
new trial in all cases where the
proofs OF the guilt ere not so clear
, end conclusive that the court can say
affirmativelv that accused could not
; have been harmed from that cause =
: The criminal code Of Illinois provided
that the neglect of the defendant
: to testify should not create any pre-
sumption against uim Nor should fiie
court hermit any reference or COM
rent to be made to. or upon SUCH neg
lect.'' The difference in our statute
g leaves room for a distinction anG for
). the execution we have noted in re-
!. gard to remarks in reply to state
:. n ents by the defendant or his at.
. torney
: !. In State V Ahern, "a Mimi 1917. the
:. court stated.
THE county attorney commentai
:, upon the fact that the defendant had
: rot testified in his own behalf. This
!. is admitted on the part of the State
: TO have been error 1t was a VIC.
= lation of an express provision of thu
: statute passed for the protection 81
defendants in criminal cases., But
:. it was harmless IN this case. from tht
= fact shat the evidence so conclusiyei,
= showed the defendants guilt that tn,
:. jury could rot have returned a yer
.e dict for the defendant without will
= fully disregarding their duty, and i
:. is not TO he supposed that they woulf
:, have done that. The evidence on tn.
:, mart of the State was complete. posi-
:. tive and uncontradicted, and nOthin.
:. apneers to raise doubt as to It.
20 credibility. 1t is unreasonable t.
y suppose that result might have beer
= different If counsel had not made thu
:. improper remark referred to-"
In a recent case, People McRoh
=, erts 81 .. 735. certain statements q
= the district attorney were held 10 n
=, gross and reprehensible violation
i, Of duty, but the court said:
-, THE question remains should tn
- Judgment he set aside for this mis-
Al, conduct? The homicide was admit
~ a.. ted and the evidence was such as t
~ make it reasonably certain that tn
no Jury was not mislead by the miscoI
~ duct of the district attorney to n
.s turn verdict which they otherwis
- would not have found
NJ And again in Patterson Hawle,
a.. 33 Neh. 4A5: "All appeals to the jur
al upon matters outside Of the case ten
he TO defeat the due administration {
~ Justice. End any statement of an 4
"a legged fact outside Of the evidenc
prejudicial to one of the parties, ma
cd be sufficient to cause a reversal
:, the judgment. A court of fusCc
does not condemn unheard. nor upo
,r+ ex parte statements of opposing cOul
a5 sci. and it will not nermit one OF il
81. officers to abuse his position by sue
o., unauthorized. statements. We al
IL satisfied however. that the verdict
II tHiS vase Is Cuc OILY one lHdt the Jul
mr. should have returned under the CIV
denco and the error will be disr
TO- garded
,as State v Shawn. 40 w Va II al
p, cases cited.
~ Also. 46 l.. r. A. 672
&C State Zumbunsor Sc Ma Ill
Thompson, Sec. $50.
ue The judgment and order are affirl
10 ed and the district court will fix
.as time for having it's sentence of dea
carried into effect.
Talbot, ].
We concur.
Fitzgerald, Z. J.
NCrcross, J.
Filed. sept. 10, 1905.
w. G. Douglass
II BY j. w. Legate
nal t)ec,tv