The defendant was convicted of the crime of abduction under that part of section 282 of the Penal Code which provides as. follows : “ A person who *' * * takes, receives, employs, harbors or uses, oi; causes or procures to be taken, received, employed or harbored or used, a female under the age of eighteen years, for the purpose of prostitution; * * * is guilty of abduction.” Accord-
ing to the testimony produced by the prosecution, the jury in,finding the defendant guilty must have believed that the girl who was the Unfortunate victim of the crime was fifteen years of age. The story of her ill-treatment is so revolting that the details cannot m decency be repeated in a judicial opinion, and the defendant’s participation therein is abundantly established by the evidence. Several claimed errors are called to our attention in the proceedings had upon the trial, Prominent among these assignments of error are improper remarks claimed to have been made by the district attorney both in his opening and closing addresses, the contention being that thereby the minds of the jury were inflamed and prejudiced against the defendant.
Improper remarks made by a prosecuting officer in opening a case to the jury or. m summing up the same, can only be made the basis of error where they appear to have been of such a character as to have a natural tendency to inflame and arouse the passions and prejudices of the jury and where the language used is not justified from a fair consideration of the evidence in the case. Where the *453evidence is of such a character that its bare recital operates to arouse the passions and prejudices of the jury or of a listener, it would not constitute error for the prosecuting officer to rehearse the evidence and comment upon the inferences fairly deducible therefrom, even though its effect were to increase with the jury feelings of passion and prejudice.
The evidence which appears in this record is of such a character that no one with common feelings of humanity can read it without being prejudiced against every actor in the process resulting in the irretrievable ruin of the complainant. Nothing can be found in the address of the learned district attorney who conducted the prosecution, either in his opening to the jury or in the summing up of the case, which had a tendency to create greater passion or prejudice than the admitted facts in evidence- created. - Under such circumstances I do not think it can reasonably be said that the interests of the defendant were unduly prejudiced by what the district attorney said. What she admittedly did was sufficient to arouse the passion and prejudice of the jury to its utmost extent, and it seems quite improbable that the district attorney added anything thereto in any part which he took in the prosecution. Every nauseating and horrible detail stood admitted, save only one issue, that of the age of the girl. Upon such issue it may be conceded that if the affidavits used upon the examination before the police magistrate were introduced and read to the jury without qualification and as general evidence in the case it would constitute reversible error. Such condition, however, is not the fact.
When the testimony was first offered, objection being made thereto, the court said: “ It is a part of the record and it is the same as if they were offering the indictment in the case. I will allow it.” When the attention of the court was again called to the matter by counsel for the defendant the court iu ruling upon the subject stated : “I shall instruct the jury, and I do instruct them now, that the complaint in the police court is the same as an indictment.” To the qualification thus placed upon the evidence and the limited purpose for which it was received the defendant took no exception. Therefore, no question was raised, as the only point to which the objection went was its competency as a whole and for any purpose. The court ruled upon'that objection, sustaining it in *454part; and by failing to except or further object to the proof as thus limited, the defendant must be deemed to have acquiesced therein. The ruling of the court rendered the whole of this testimony innocuous. ' It was treated for purposes of evidence the same as an ..indictment. The latter pleading proves nothing; it simply contains the charge which the defendant is called upon to answer. If there be nothing more, no offense is proved. The operative effect of the ruling of the court, therefore, was to receive the papers as evidence that a charge had been made against the defendant before the police magistrate, and for nothing else. If it was error so to admit it, it was, nevertheless, harmless, as no possible prejudice could arise out of it to the defendant, and error could not be predicated thereupon within section- 542 of the Code of Criminal Procedure, which, notwithstanding the decisions; still has some force to which effect may be given. (People v. Silverman, 181 N. Y. 235.)
In addition, it was orally stated upon the argument of this appeal by the learned district attorney, and not controverted by the defendant’s counsel, although liis attention was specifically directed thereto, that-the record before the police magistrate was not read to the jury and its contents were in nowise referred to or considered by them. Such action, harmonizes with the ruling made by the court, as the only force left to the testimony was the fact of the charge, and that was not controverted. Consequently, there was no necessity for reading or otherwise commenting upon it, Under such circumstances, I am of opinion that this court is not called upon to lay hold of such matter as constituting reversible error.
The charge of the learned court to the jury covered every view of the case that the defendant asked for or desired, save in one particular, and that rélated to the evidence concerning a ship’s •manifest. Upon that subject the defendant received a charge more favorable than that to which she was entitled, as the manifest was not admissible for any purpose.- The evidence in the case bearing upon the age of the girl was all- competent. As to everything else, the charge stands admitted. The evidence is clear and conclusive •of the defendant’s guilt. I am unable to find legal error; and if there may have been irregularities upon the part of the district *455attorney in the trial of the case, they cannot be said to have operated to the prejudice of the defendant, or that they might have so operated.
It is claimed that other errors were committed ; but they relate to questions quite aside from that involving the age of the complainant. If it be admitted that errors in the reception of evidence in these respects were committed, they are clearly harmless and could not prejudice the defendant, as, aside from the issue of the age of the complainant, the case against the defendant stood admitted.
The judgment of conviction should, therefore, be affirmed.
O’Brien, P. J., and Patterson, J., concurred; Ingraham and McLaughlin, JJ., dissented.