The indictment, under which the defendant was convicted, was founded upon section 165 of the Penal Code. The affirmance by the Appellate Division was unanimous, thus disposing of the questions of fact. We have carefully examined the exceptions taken with reference to the admission and rejection of evidence, and are of the opinion that they were properly disposed of by the court below.
There is only one question which we think it our duty to discuss upon this appeal, and that pertains to the remarks of the district attorney who tried the case, which have been quoted in the prevailing opinion.
The privilege of counsel in addressing a jury has often given rise to controversies which have been the subject of consideration in our courts, as well as in the courts of our sister states. In 56 American Reports, 814, and 58 American Reports, 648, will be found notes, in which many of the cases are collected and digested. There is one case to which we will specifically refer, for it expresses our views upon the subject, and that is the case of Williams v. Brooklyn Elevated RailroadCo. (126 N.Y. 96, 102). In that case, ANDREWS, J., in delivering the opinion of the court, says: "It is the privilege of counsel in addressing a jury to comment upon every pertinent matter of fact bearing upon the questions which the jury have to decide. This privilege it is most important to preserve and it ought not to be narrowed by any close construction, but should be interpreted in the largest sense. The right of counsel to address the jury upon the facts is of public as well as private consequence, for its exercise has always proved one of the most effective aids in the ascertainment of truth by juries in courts of justice, and this concerns the very highest interest of the state. The jury system would fail much more frequently than it now does if freedom of *Page 555 advocacy should be unduly hampered and counsel should be prevented from exercising within the four corners of the evidence the widest latitude by way of comment, denunciation or appeal in advocating his cause. This privilege is not beyond regulation by the court. It is subject to be controlled by the trial judge in the exercise of a sound discretion, to prevent undue prolixity, waste of time, or unseemly criticism. The privilege of counsel, however, does not justify the introduction in his summing up of matters wholly immaterial and irrelevant to the matter to be decided, and which the jury have no right to consider in arriving at their verdict. The jury are sworn to render their verdict upon the evidence. The law seduously guards against the introduction of irrelevant or incompetent evidence, by which the rights of a party may be prejudiced. The purpose of these salutary rules might be defeated if jurors were allowed to consider facts not in evidence, and the privilege of counsel can never operate as a license to state to a jury facts not in evidence, or to presentconsiderations which have no legitimate bearing upon the case andwhich the jury would have no right to consider. Where counsel in summing up proceeds to dilate upon facts not in evidence or to press upon the jury considerations which the jury would have no right to regard, it is, we conceive, the plain duty of the court, upon objection made, to interpose, and a refusal of the court to interpose, where otherwise the right of the party would be prejudiced, would be legal error."
The district attorney is a high public officer, representing the state, which seeks equal and impartial justice, and it is as much his duty to see that no innocent man suffers as it is to see that no guilty man escapes. In the discharge of these most important duties he commands the respect of the people of the county and usually exercises a great influence upon jurors. In discussing the evidence he is, as we have seen in the case alluded to, given the widest latitude within the four corners of the evidence by way of comment, denunciation or appeal, but he has no right to call to the attention of the jury *Page 556 matters or considerations which the jurors have no right to consider. Verdicts obtained through duress, bias or prejudice are illegal, and will be set aside. This is also true with reference to verdicts based upon popular clamor.
Upon referring to the comments of the district attorney, it appears that he proceeded to draw pictures based upon matters outside of the evidence, of a widow with her starved brood of little children with faces pinched and haggard, and an old man clutching in his knotted fingers rolls of dirty one-dollar bills, standing in line of taxpayers all day in order to save the little rebate which early payment of their taxes secures. He then says: "These are the people whose cause I plead," and then states that "these are the people, who now, by tens of thousands, are waiting outside for your verdict. Will you do them justice, or will you not? If you shall let this man, loaded with his guilty plunder, escape, then I say you have committed the unpardonable sin." As we understand this language, the district attorney demands of the jury a verdict of guilty based upon the clamor of tens of thousands who are waiting outside, and insists that if the jurors do not comply with his demand they will commit the unpardonable sin. This, we think, was going too far, and cannot be approved. He departed from his line of duty, which was a discussion of the evidence and a demand of a conviction based thereon, and appealed to the jury for a conviction upon considerations which had no legitimate bearing upon the case, and which the jury had no right to consider.
We, however, are inclined to the view that a new trial is not required. Under the Constitution we are limited in our review to questions of law. The defendant's counsel took a number of exceptions to the statements made by the district attorney, but when he came to his last and final statement, in which the real vice occurred, the defendant's counsel neglected to take an exception. That which preceded the final remarks of the district attorney may not have been in good taste, but we do not regard it, standing alone, to be such a departure from the line of discussion permissible within the privilege of *Page 557 the district attorney as to warrant a reversal. We regard the question very much relieved by the charge of the court, who, after listening to the comments of the district attorney, says: "Some things have been said about the newspapers, about popular clamor, and the burden of the taxpayers. Those are considerations which are not to control or influence you in deciding this case. What the clamor may be, I do not know; I have never heard of it. What the newspapers may have said, I do not care; I have never read it. How much the people may or may not be burdened, no matter. If the times were prosperous, a public official has no right to make an assault upon the public treasury, or to aid others in doing it, and he must be tried only for the crime he has committed, if he has committed one; and it would be wrong in the extreme to assume anything and allow it to weigh against this defendant because of hard times, or because of difficulties which the people who pay money into the city treasury may or may not have in acquiring the means of making the payment." The court further charged: "There is no evidence in the case which would justify the jury in finding that it was more expensive to live upon Eighth avenue than in Prospect avenue; that no unfavorable inference can be drawn in this case against the defendant from the fact that in the month of September, 1897, he moved from Prospect avenue into Eighth avenue."
Under section 542 of the Code of Criminal Procedure we are required to give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties. Under the circumstances, therefore, we think the judgment and conviction should be affirmed.
PARKER, Ch. J., BARTLETT and MARTIN, JJ., concur with VANN, J., for reversal of judgment of conviction, etc.; GRAY and O'BRIEN, JJ., concur with HAIGHT, J., for affirmance.
Judgment of conviction reversed and new trial ordered. *Page 558