I am not prepared to say *232that the evidence is insufficient to justify the verdict, but I concur in the judgment of reversal because of the error in giving the instruction referred to in the opinion of Mr. Justice Sharpstein,—as to what facts are sufficient to show a larceny of lost property, — and also because of the misconduct of the district attorney in asking the defendant, upon cross-examination, certain questions, and in making a statement in reference thereto in the presence of the jury. The questions were as follows: “You know, as a matter of fact, you had been stealing his hogs . right along and, “ The only reason you have got right now for swearing that you believe that Robert Doherty had an antipathy toward you is because about six years ago he caught you dressing one of his hogs. Is n’t that the only reason?” The questions being objected to by the defendant’s attorney, they were followed by this statement, made by the district attorney: “I want to show that the only reason that the witness had for believing as he did was because Robert Doherty caught him one time killing one of his hogs. He had testified that Robert Doherty, he believed, had an antipathy against him. We desire to explain why he had that antipathy.” It is not argued here, nor could it be with any degree of seriousness, that these questions were proper, or that the fact offered to be shown was one competent for the jury to consider for any purpose in passing upon the issues involved in the case they were trying. On the contrary, it is apparent that the only object sought by this course of examination, and in the statement made to the court, was to convey to the jury a knowledge of the alleged fact that the defendant was at some prior time guilty of an offense similar to that for which he was then on trial, and that he was at that time caught under such circumstances that he could not interpose the defense of a taking by mistake, — the only defense relied upon in the present case. Such a fact thrown before the jury, and offered to be proven by the testimony of the defendant himself, could not have failed to prejudice the case of defendant. In this case the taking by defendant of *233the hogs alleged to have been stolen was not disputed; but the defendant claimed that he had not observed that such hogs bore the mark of the prosecuting witness, and his whole defense depended upon whether the jury should believe his evidence on this point. Under these circumstances, it was very damaging to bring before the jury, in the manner adopted by the district attorney, the fact that upon a previous occasion the defendant had been caught dressing a hog belonging to the same person who was prosecuting him for larceny in this case.
In the case of Leahy v. State, 31 Neb. 566, the defendant was on trial for a rape, alleged to have been committed upon one Lizzie Schultz, and upon the cross-examination of the defendant, the prosecuting attorney asked him, among other questions, if be did not go to the residence of one B., on the day succeeding that on which he had made the assault on Miss Schultz, and there meeting Miss B. alone, attempt to kiss her and drag her to a lounge. An objection to the question was sustained, whereupon the prosecuting attorney said, in the presence of the jury: “We intend to follow this matter up, and show that he went right over to B/s, and there tried to hug and kiss Miss B., and drag her to the lounge.” The supreme court held that this was error, and said: “It is the duty of a prosecuting officer to conduct the trial of a criminal case according to established rules. He acts in a semi-judicial capacity, and is supposed to act alone from principle, and without bias or prejudice. The state has guaranteed to every one a fair trial, and such trial cannot be had if the prosecution can resort to tricks to secure a conviction. If such practice was sanctioned, it would result, in many cases, in the conviction of innocent persons. The plaintiff in error was on trial for the crime charged in the information. So far as appears, he had not been charged with any other offense, and certainly was not on trial for the second. The statements of the attorney were improper, and in the highest degree prejudicial, and for those causes the judgment is reversed, and the cause remanded for a new trial.” The *234case of People v. Cahoon, 88 Mich. 456, and that of People v. Ah Len, 92 Cal. 282, are the same in principle as the one from which I have just quoted, and I think, under the rule of these cases, it must be held that the substantial rights of defendant were prejudiced by the mode of examination adopted by the district attorney, and by his statement of the fact which he desired to show. The court below sustained objections to the questions, but this did not in my judgment obviate the injury which the questions and statement must have produced.