dissenting: Tbis case was argued at tbe same time as tbe case of tbe United States v. Angus M. Cannon, and many of tbe objections tbat are here raised were discussed in tbe latter case, and are considered and determined in tbe opinions filed. It is, therefore, unnecessary to refer to tbe question raised as to tbe proper construction of 'the Edmunds act, so called. There are, however, some features entirely different and distinct, raised by tbe record in tbis case, from those tbat were raised and decided in tbe Cannon case, and while my brethren are of tbe opinion tbat there is no error shown in tbe record, I am so clearly of tbe opposite opinion, and so well convinced tbat a new trial should be ordered, tbat I dissent from tbe opinion of tbe court, and present herewith my views:
1. The first point tbat is raised by tbe defendant is tbat there was not sufficient evidence to justify tbe verdict of tbe jury for tbe offense as defined by tbe court.
While a careful reading of tbe record discloses that tbe testimony was somewhat weak, still I am not prepared to say tbat tbe case should have been taken from tbe jury, *168and, indeed, in the view that I take of the case, and with the manifest errors that the record discloses, it is not necessary that I should determine that question. I may, however, in passing, refer to one matter. It is contended by the defendant that his entire conduct towards the women designated as his wives, as shown in the testimony, was not only proper, but commendable. It is argued that as he had previously had children by these women, and that these children had been legitimated by the very act which makes it a misdemeanor for a male person to cohabit with two or more women, the defendant was under a moral obligation, if not legally compelled so to do, to support his’ children and their mothers. That he, therefore, had a right to live with them under the same roof, to eat with them at the same table, to confer with them and to converse with them; to call them by his name, and to treat them in as friendly a maimer as he chose, so long as he refrained from sexual intercourse with the women.
The defendant claims that there is no law that requires him to divorce himself from the women. That is true, but the effect of the Edmunds Act is to require him to treat these women substantially as he would be required to treat' them if he had been divorced from them by a court of competent jurisdiction: In my opinion, a man who has heretofore contracted a polygamous marriage, and has had children by two or more women, is required, as I have stated, to treat those women precisely as he would be required to treat them if he had been divorced from them. A man divorced from a woman is under legal obligations to support his children; he may be required by the decree of the court to support his wife, and to pay to her stated sums at stated intervals, but, with the exception of the business relations which exist between him and his. former wife, it is not expected that he will have any further intimacy with her. He may visit his children, he may make directions with regard to their welfare, he may meet his former wife on terms of social equality, but it is not expected, after the decree of divorce, that he will associate with his former wife as a husband associates with his wife, that he will live under the same roof, and, to outward ap*169pearances, live with ber as a husband lives with bis wife. Tbe Edmunds law says tbat there must be an end, and it puts an end, to tbe relationship previously existing between polygamists, whatever it was. It says tbat tbe relationship must cease.
2. On tbe trial of this case, Bishop Warburton, of the Mormon church, and Charles Brown were sworn as witnesses for tbe prosecution. Brown is tbe ward cleric, and be testified tbat there is a record book kept in bis ward, which is in tbe same ward in which Musser lived, of tbe births, baptisms and blessings of children. He stated tbat as clerk of tbe ward it is a part of bis duties to keep such book, and be is its custodian. From bis testimony it appeared tbat about six months previous to tbe trial, tbe book mysteriously disappeared. The witness stated tbat be did not know where it was, that be bad made efforts to find it, and tbat be bad been unable to find it. He stated tbat tbe book contains, in addition to tbe record of baptisms, tbe names of tbe child and its parents. Bishop Warburton testified tbat be did not know where tbe book was, or by whom it bad been taken, and stated tbat be never bad blessed any of defendant’s children. Tbe question was put to Brown, after be bad testified tbat tbe book had been taken from bis custody, as follows: “By whom was it taken?” And defendant objected, on tbe ground tbat tbe testimony was immaterial; tbe court overruled tbe objection and tbe defendant excepted, and tbe witness testified that be did not know. Tbe defendant also objected, on tbe ground tbat tbe testimony was immaterial and irrelevant, to tbe testimony of Bishop Warburton as to bis administering blessings to children, and an exception was taken to tbe admission of tbe testimony.
This testimony was all clearly immaterial and irrelevant, and should have been stricken out by tbe court, and the jury instructed not to consider it. True, there is very little in it tbat may be said to directly injure tbe defendant, but in its very immateriality tbe danger lies. It tended to distract tbe attention of tbe jury from tbe real issue, and would have a natural tendency, by leading their minds from tbe question as to whether tbe defendant was guilty *170of cohabitation, to consider the peculiarities of the Mormon church organization. There was also danger that the jury might infer that the defendant was in some way connected with the loss of the book inquired after, when there was no proof on that point. But as the record discloses that the defendant did not see. fit to avail himself of his right to move to strike out the testimony, and did not object to many portions of -it that were clearly inadmissible, it, therefore, is not necessary to further consider this testimony at this point, and it is only mentioned at this time on account of the bearing that it will be seen to have on this case, when we come to consider some further developments in it, and also the charge of the court and the requests for instructions that were presented by the defendant.
3. The next point that is made by the defendant is of more importance. After the evidence had been closed, the assistant district attorney, in making the closing argument for the prosecution, stated to the jury, in substance, that it was within the power of the defendant to show all the facts in his defence, by his wives and children, but that it was not in the power of the prosecution to show the facts by them, because they had been put out of the way by the procurement of the defendant. One of the counsel for the. defendant objected to this line of argument, and the court thereupon remarked, “I suppose there is no evidence as to how they were put out of the way?” All the testimony taken in this case before the jury is brought up by the record, and it discloses that there was no evidence, but that the persons referred to had not been put out of the way by the procurement of the defendant, or by anybody else, and the court was' therefore in error when it said, “I suppose there is no evidence as to how they were put out of the way,” because that remark could not have failed to convince the jury that it was clearly the opinion of the court, that the persons referred to had been put out of the way somehow, and instead of curing the error caused by the remarks of the district attorney outside of the record, it added additional error, and gives additional ground to the defendant upon which to base his claim for a new trial. A *171judge bas no right to express his opinion upon the facts of the case in the hearing of the jury, in a manner that will have a tendency to affect their verdict. The rule is laid down in many well considered cases, that it is not proper for the judge to make remarks in the hearing of the jury, calculated to influence their finding: Kelly v. Borland, 78 Ill., 438; Furham v. Huntsville, 54 Ala., 263; Wannack v. Mayer, 53 Ga., 162; Hasbrouk v. Milwaukee, 21 Wis., 217: Cronkhite v. Dickerson, 51 Mich.
It appears by the record that after the judge had made the remark 'that I have quoted, the district attorney .made no further comment on that subject. It also appears that at another part of his argument he stated to the jury that during- the trial of the case an outsider had come into the court-room and made signals with his fingers, as a means of telegraphing to the jury. The defendant’s counsel interrupted him and called him to order, upon which the court said: “that can be attended to afterward,” and thereupon the district attorney ceased to comment upon it. The prosecution contends that the remarks referred to were made in the heat of argument, without any thought of traveling outside the record, and with no purpose or intent to mislead the jury in their consideration of the case. The prosecution submits that the improprieties complained of were inadvertant; that they were not the result of mature deliberation, and that they were not continued. All of which I am glad to concede, but the fact that the remarks were inadvertently made, would not remove their natural effect upon the jury. The prosecuting officer, representing and standing for the government, by reason of the very position that he occupies, has more weight and influence with the jury than private counsel. He is supposed to have no more interest in the case, than that justice may be done between the government and the prisoner at the bar. He is supposed to be impartial in his investigation of crime, and in his efforts to suppress it. Upon the one hand, he is not to let any guilty man escape; upon the other hand, he is not to allow any innocent man to be convicted. On this account, his words to the jury being-presumed by the law, and by the people, for that matter, *172to emanate from an unprejudiced and unbiased mind, liis statements have infinitely more weight, and' bis remarks should, therefore, be more guarded than those of an attorney who appears in behalf of the defendant. A prosecuting attorney is not a plaintiff’s attorney, but a sworn minister of justice; as much bound to protect the innocent as to pursue the guilty: Wellar v. People, 30 Mich., 23.
His position is one involving a duty of impartiality, not altogether unlike that of the judge himself. The position is a trying one, but the duty, however, exists: Meister v. People, 31 Mich., 104.
He represents the public interests, which can never be promoted by the conviction of the innocent. Bis object, like that of the court, should be simple justice, and ho has no right to sacrifice these to any pride of professional success, and however strong may be his belief in the prisoner’s guilt, he must remember that though unfair means may happen to result in doing justice to the prisoner in the particular case, yet justice so attained, is unjust and dangerous to the whole community; Hurd v. People, 25 Mich., 416.
That the remarks of the assistant district attorney were calculated to work injury to defendant and were error, I do not think can be successfully denied. But it is argued that no exception was taken at any time, that there was nothing to except to, that the court was asked to interfere and did so, and that thus the application of the defendant was granted, and that the matter has no place in the record and cannot be considered by the court. It would seem to be too clear for argument that the matter is subject to review by the supreme court. The supreme court has supervisory jurisdiction over the district courts, and whenever it appears that a defendant has not had a fair trial, or that the trial has not been conducted in accordance with the settled rules of law, this court has the power to review the proceedings and to order a new trial. There are many cases in the books in which it has been held that points similar to the one under consideration would be considered by an appellate court. See Scripps v. Reilly, 35 Mich., 391, and cases there cited. It has been many times ruled *173that counsel, in argument, must not seek to influence the jurors by reference to the matters in the nature of evidence not in proof before them, and that the trial judge should promptly repress the attempt as something reprehensible: Bullock v. Smith, 15 Ga., 395; Scripps v. Reilly, 35 Mich., 391; Berry v. State, 10 Ga., 511; Mitchum v. State, 11 Ga., 615; Dickerson v. Burke, 25 Ga., 225; Read v. State, 2 Ind., 438; Tucker v. Henniker, 41 N. H., 317; Kennedy v. People, 40 Ill., 488; Hutch v. State, 8 Tex. Ct. App., 417; Austin v. People, 102 Ill., 264; Fox v. People, 95 Ill., 78; Angelo v. People, 96 Ill., 213; Conn v. People, 11 Tex. Ct. Ap., 400; Lanbach v. People, 12 Tex. Ct. App., 590; State v. Kring, 2 Am. Crim. Law Rep., 314; State v. Smith, 1 Am. Crim. Law Rep., 581; Ferguson v. State, 1 Am. Crim. Law Rep., 582; State v. Graham, 17 N. W. Rep., 192.
It lias been held that where counsel have traveled outside of the record in addressing the jury, that the error was not cured even by an instruction to the jury not to consider the matter: Morton v. Ordnorf, 22 Iowa, 504; State v. Whit, 5 Jones, N. C., 224.
It is the chief duty of the trial judge to secure fair play to litigants, and, so far as practicable, to shape the order and course of the proceedings in such a way, that neither party will be put to a disadvantage not due to liis case or its mode of management by his counsel. The rules of the court, and what is called the course of the court, have their origin in the purpose to secure fairness in legal controversies, and the order of business and the regulated succession of steps at trials have the same object. The courts have usually been very firm in confining counsel within proper bounds and guarding jurors against unfair and irregular acts and endeavors, and parties have been deprived of their verdicts upon evidence merely indicating the operation of influences about the outskirts of the trial: Scripps v. Reilly, 35 Mich. 390.
It was stated in Tucker v. Henniker, 41 N. H. 322, that it would be utterly vain and quite useless to caution jurors in the progress of a trial against listening to conversations out of the court room in regard to the merits of the case, *174if tliey are permitted to listen in tlie jury box to statements of facts not in evidence calculated to liave a bearing upon tlieir judgment, enforced and illustrated by all the eloquence and ability of learned, zealous and interested counsel.
Considering in connection witli tlie remarks of tlie prosecuting attorney complained of, the fact of tbe weakness of tlie testimony, tlie immaterial evidence received from tlie witnesses Brown and Warburton, and tbe remarks of tlie court upon tlie objection made to tbe lino of argument of tbe district attorney, I am forced to tbe opinion without going auy further that there is error in tbe record, and that a new trial should be granted without any hesitation. It may be that this defendant should be convicted, but the fact that he should be convicted, if such- is the fact, does not deprive him of his right to a fair trial according to the law and the evidence.
4. The trial having taken the course that I have indicated, it became the duty of the court, when it came to charge the jury, to very carefully guard the rights of the defendant, and to clearly draw the attention of the jury to the real issue in the case, and inform them that outside matters and irrelevant testimony should not be considered by them. The testimony proper for their consideration should have been pointed out, and the matters and testimony that tlie jury ought not to consider should also have been called to their attention, but the charge of tlie court fails to do this. The attempt made to cure the errors that I have indicated was not sufficient. Each and every instruction requested by the defendant is refused, many of them being clearly proper, some being calculated in a slight degree to cause the jury to disregard the matters that had been improperly brought to their attention. The charge simply states the offense, tells the jury that it is brought under a section of the statute of the United States, which is read to them; that the defendant is presumed innocent until proven guilty beyond a reasonable doubt, and that if the jury believe from the evidence, beyond a reasonable doubt, that the defendant, between the dates named in the indictment, lived with the women named therein, or *175with any two of them, as his wives, in the habit and. repute of marriage, they should find him guilty; that they need not find that he lived with any one of them, or any two of them, all the time, but he must live with them a portion of the time within the dates charged; that it is not necessary to the offense that the defendant should occupy the same bed with the women, or have sexual intercourse with them; neither is it required that a marriage should be celebrated between any of them and the defendant. The jury were told that they must consider the evidence all together, and not go outside of it. They were told that they were the sole judges of the credibility of the witnesses and the weight of the evidence; that they must consider it all together, not giving undue weight to any portion of it; and, in conclusion, they were told that a reasonable doubt is a doubt based upon reason — based on the evidence or the lack of evidence.
Nothing was directly said to the jury with reference to the remarks of the district attorney, or with regard to immaterial evidence introduced in the case. The testimony had a very wide range, extending back for many years prior to the passage of the Edmunds act, and the defendant requested the judge to charge the jury that “the law distinguishes between the continuing of the status of a polygamous marriage and cohabitation between the parties. The former is not unlawful, and its continuance affords no ground for inference of the fact of cohabitation. It is not necessary that the parties to a polygamous marriage should divorce themselves in some, effectual way, in order to entitle themselves to the presumption of innocence of the offense of cohabitation.” There can be no question but that this instruction is proper, and should have been given, and its refusal was error. That it was proper is readily seen by an examination of the case of Murphy v. Ramsey, 114 U. S. 15.
The defendant also asked the court to instruct the jury that .“there is no duty on the defendant to produce in court his children, or the women mentioned in the indictment; nor is there any evidence that the defendant has had any agency in keeping them away, or in preventing the service *176of subpoena on them, and the jury are not authorized to draw any inference against the defendant from their absence.” This request is proper, and should have been given. The only reason that I can conceive for its refusal and the failure of the court to say anything upon this subject in his charge, after the matters had arisen upon the trial, and in the course of the argument to which I have referred, is that the judge must have believed that the jury were entitled to draw an inference against the defendant on account of the absence of those parties. After the court had given this charge, one of the counsel for defendant called the attention of the judge to the fact, that it had been argued to the jury that there is no presumption of law, that on the passage of the Edmunds act, those who had lived in polygamy before ceased to do so, and the defendant’s counsel called the attention of the court to the fact that at the time of the argument the court did not correct the prosecuting attorney, and requested a charge upon this point, to which the court replied, “I did not wish to charge upon this point; I have charged the jury that the law presumes the defendant innocent.”
The instruction requested by the defendant’s counsel should have been given, and in not giving it the court virtually allowed the jury to believe that there is no presumption of law that at the passage of the Edmunds act, those who had lived in polygamy before ceased to do so. In my opinion, such is the presumption of law. The court was also requested to instruct the jury that evidence of anything that transpired between the parties — the defendant and his alleged wives — or their relationship between each other, prior to the date named in the indictment, -is immaterial, except for the purpose of illustrating their conduct afterwards. The request should have been given, and so ought the jury to have been instructed, as requested by the defendant, that “Evidence has been introduced tending to show the keeping of a record of baptisms and blessings by the clerk of the ward in which the defendant lived. That evidence could only be material for the purpose of showing that the defendant had nominated some of his children for either of those rites, and if the jury find that *177tbis defendant did not bave tbe names of any of bis children entered in that boob, then tbat entire testimony becomes immaterial.”
I bave already called attention in tbe opinion filed in tbe Cannon case, to tbe various requests for instructions, wbicb were made in tbat case and refused by tbe court. Tbe same requests were made in tbis case and refused by tbe court. Tbe refusal was error. Tbe error is more apparent in tbis case, the testimony being less substantial than tbat of tbe case of tbe United States v. Cannon.
Eor tbe errors tbat I bave pointed out as well as on account of many others apparent upon tbe record, I dissent from tbe opinion of tbe majority of tbis court, and I believe tbat tbe defendant Musser should bave a new trial granted him, because tbe record discloses tbat tbe trial wbicb resulted in bis conviction was not a fair trial.