delivered the opinion of the court.
As there are seventy errors assigned to the rulings of the district court, nearly all of which assignments of error are absolutely without merit and are abandoned in this court, it should not be a matter of surprise that the court of appeals iti its opinion as filed gave but slight consideration to matters to which our attention has been particularly invited, and which we think necessitate a reversal of the judgment of both the court of appeals and the district court.
In so far as the errors assigned are discussed at length by the court of appeals, we are entirely satisfied with that discussion, and shall not attempt to review such errors. Our consideration will be given entirely to such errors as relate to the misconduct of counsel for the state during the trial, and to the misconduct of the bailiffs in charge of the jury. Alluding to the misconduct of counsel representing the state, the court of appeals uses this language :
“We admit that the remarks incorporated into the record as having been uttered by the prosecuting attorney were highly improper and unwarranted, but in the face of the fact that the record shows that objections were interposed by counsel for defendant, and that those objections were sustained and the remarks eliminated, and counsel cautioned by the court to refrain from further comments of that nature, that the defendant secured through the court a correction of this misconduct, and we are warranted in assuming that, *17in view of the action of the court, that the jury were not-influenced or prejudiced against the defendant by the course pursued by counsel for the prosecution.”
We cannot agree with that court in the conclusion that the error was corrected by the district court, or that the defendant’s case was not prejudiced by the improper conduct alluded to; for while it is true that as often as appealed to the court sustained the defendant’s objection to the unwarranted statements and improper insinuations of the district attorney, it is equally true that the action of the court was had in such a manner as to have -no effect upon the district attorney, who persisted in the improper conduct the same as before.
The court does not seem to have made any attempt to punish counsel in any way for these improprieties or to have reprimanded him for his unprofessional conduct. In this connection the language of this court in the case of Smith v. The People, 8 Colo. 457, is directly in point: “ The criticism on the action of the court is that the judge failed to assert and maintain the authority and dignity of the court, by reason whereof a prisoner upon trial was prejudiced. The law places at the command of all judicial tribunals ample power and means to enforce obedience to their lawful orders in such cases, bjr the way of fines, and, if necessary, imprisonment. It is the duty of courts to require their proceedings to be conducted according to the rules of law, and to protect the rights of litigants. That the proceedings in this instance were defective in the essentials mentioned is fully shown by the record. We are further of opinion that the errors complained of were not cured, for which reasons the judgment must be reversed and the cause remanded.”
So in this ease we think that the covert insinuations as well as the direct attacks made by the district attorney upon the defendant were well calculated to prejudice the jury against him. Added to this we have the offer on the part of the assistant district attorney to prove a crime against the defendant other than the one for which he was upon trial. An objection to this offer of proof was properly sustained by *18the trial court. The offer, however, becomes important for the purpose of showing the extent to which the zeal of counsel carried them in this prosecution.
In the light of this record we cannot say that the improper conduct of the district attorney did not have much to do in influencing the jury against the defendant. This undoubtedly was the effect desired, but whether it had such effect or not it is unnecessary to determine. It is sufficient for us to know that it might have been the means of procuring a verdict of guilty, and for this misconduct of counsel alone the defendant should be awarded a new trial.
The alleged misconduct of the bailiffs in charge of the jury is, however, a matter that we cannot overlook. These officers, in the disregard of their sworn duty and in violation of the instructions of the court, allowed the jury to separate, permitted intoxicants in the jury room, and engaged in conversations with members of the jury, which resulted in an altercation, so that a breach of the peace was narrowly averted. These are matters about which there is no conflict upon the affidavits filed. Added to this we have the affidavits of three jurors to the effect that one of the bailiffs endeavored by argument and denunciation to procure a verdict of guilty; this officer going so far as to call attention to some supposed natural defect in one of the attorneys for the defense. It- may be said, however, that these matters last mentioned are denied. By whom? First, by the officer charged with the improper conduct; second, by the negative statement of other jurors to the effect that they heard nothing of the kind.
This is a matter that was presented to the district court entirely upon affidavits filed, and not upon oral testimony, and for this reason this court is as well qualified to judge as to the weight that should be attached to the several affidavits as the court below, and taking into consideration the fact that the misconduct of the bailiffs in other respects is admitted, and that these additional irregularities are made to appear by the positive affidavits of three of the jurors, we *19are of the opinion that the further misconduct of the bailiffs is established by the weight of evidence.
We cannot consider the alleged misconduct of the jury, for the reason that the same is only brought to the attention of the court by the affidavits of members of the jury ; and it is well settled that such affidavits cannot be received for the purpose of showing misconduct on the part of the jury, although, by the weight of modern authority, the affidavits of jurors may be received for the purpose of showing misconduct on the part of bailiffs and other third parties. Proffatt on Jury Trial, sec. 408; Thompson & Herman on Juries, sec. 449.
The defendant had been transacting business with and ' for Caroline Spindler for a long time prior to the transaction which formed the basis of this information. He claimed that she, being indebted to him at the time, requested him to sell or hypothecate the 11,200 note, and from the proceeds thereof to pay this indebtedness. This Mrs. Spindler denies. The evidence is very conflicting. It was the province of the jury to decide upon this conflict, and what influence the improper conduct of the officers of the court, the district attorney, and the bailiffs, may have had upon the jury, no human being can say with certainty; but of one thing we feel there is no doubt, and that is that the defendant did not have a fair trial, and for this reason the judgment will be reversed.
Reversed.