Petition for rehearing denied May 14, 1935 ON PETITION FOR REHEARING (44 P.2d 162) The petition for a rehearing is predicated largely upon a contention that we should have reversed the judgment of conviction because the district attorney, in his argument, declared to the jury: "How do you know they are not all fugitives right now?" As stated in our previous opinion, the trial judge promptly sustained the defendants' objection to *Page 292 this comment. Our opinion pointed out that this remark "should not have been made". We declined, however, to reverse the conviction because the proof of the defendants' guilt came from several witnesses whose credibility was not assailed and whose testimony was not contradicted in any detail. We felt justified in believing that the conviction was prompted by the overwhelming proof of guilt and that, therefore, the unwarranted remark did not constitute reversible error. The petition for a rehearing insists that "this is the first time in the history of the State that the court" has employed such a principle, and that our employment of this principle "is such a departure from previously conceived notions of criminal practice in this State" that the matter should be given further attention.
As early as State v. Glass, 5 Or. 73, this court employed the principle that a judgment of conviction will not be reversed for error which worked no injury upon the defendant. Since that time we have many times held that error, in order to warrant a reversal, must be prejudicial.
The principle just announced has been applied in previous instances similar to the one now before us. In State v.Blodgett, 50 Or. 329 (92 P. 820), which has received much commendation in the brief accompanying the petition for rehearing, this court stated:
"But a case should not be reversed where improper references have been made by counsel in their argument to immaterial and irrelevant matters, unless it further appears that the injury to the rights of defendant resulted, and that will be determined by the issue involved and the state of the evidence."
From State v. Pender, 72 Or. 94 (142 P. 615), we quote:
"We think that the remarks made by counsel and objected to were improper, but that they were not prejudicial *Page 293 to the defendant and that we have no right to reverse the judgment on account thereof."
In announcing our decision in State v. Pointer, 106 Or. 589 (213 P. 621), the carefully prepared decision stated:
"A case will not be reversed upon account of improper argument of counsel, unless it appears from the record that injury to the rights of defendant resulted: State v. Blodgett, supra. The entire argument of the special prosecutor, as well as the excerpts in question, was fresh in the mind of the trial court when passing upon the motion for a new trial. Thus qualified to decide the matter, the court determined that the rights of defendant were not prejudiced by the conduct of counsel. We cannot say that the decision overruling the motion for a new trial was an abuse of discretion."
The appellants direct our attention to the recent decision entitled Berger v. United States, 295 U.S. 78, (79 L. Ed. 667,55 S. Ct. 629), and declared:
"The opinion in this case is in direct conflict with the opinion of the United States Supreme Court in the Berger case."
We quote from the case just mentioned the following:
"That the United States prosecuting attorney overstepped the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense is clearly shown by the record. He was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and in general, of conducting himself in a thoroughly indecorous and improper manner. * * * The prosecuting attorney's argument to the jury was undignified *Page 294 and intemperate, containing improper insinuations and assertions calculated to mislead the jury."
In disposing of the assignments of error predicated upon this situation, the court observed:
"The court below said that the case against Berger was not strong; and from a careful examination of the record we agree. Indeed, the case against Berger, who was convicted only of conspiracy and not of any substantive offense as were the other defendants, we think may properly be characterized as weak."
The court held that under that circumstance it would not be justified in assuming that the prosecuting attorney's improper conduct had not prejudiced the defendant. We quote:
"In these circumstances prejudice to the cause of the accused is so highly probable that we are not justified in assuming its non-existence. If the case against Berger had been strong, or, as some courts have said, the evidence of his guilt `overwhelming,' a different conclusion might be reached. Compare Fitter v. United States (C.C.A.) 258 F. 567, 573; Johnson v. United States (C.C.A.) 215 F. 679, 685, L.R.A. 1915A, 862; People v. Malkin,250 N.Y. 185, 201, 202, 164 N.E. 900; State v. Roscum, 119 Iowa 330,333, 93 N.W. 295."
We fail to discover any difference between the holding of that case and our previous decision. Moreover, we believe that our previous decision is not only in accord with earlier decisions announced by this court but is also in harmony with the decisions of other courts and sound policy.
There are other matters argued in the petition for a rehearing, but we believe that our views in regard to them have been sufficiently expressed in our previous decision.
We are satisfied that there exists no occasion for a rehearing. The petition is, therefore, denied. *Page 295