1. In the brief upon the motion for rehearing it is urged that the court erred in instruction No. 15 given to the jury. By this instruction the court submitted to the jury three forms of verdict only, one finding the defendant guilty as he stands charged in the information and fixing death as the penalty, and the other finding him also guilty and fixing the penalty at imprisonment for life, and the third finding the defendant not guilty. The information charged the defendant with murder in the first degree, and the contention is that the court should also have submitted to the jury the question of the defendant’s guilt of a lower degree of that crime. This is not a new *483question in this court. In Strong v. State, 63 Neb. 440, it is said: “The court, in charging the jury, is only required to state the law applicable to the facts proved and those which the evidence tends to prove. So, where it is conclusively shown that the defendant either committed the crime charged or is entirely innocent, the failure to instruct with respect to other crimes, or inferior degrees'of the crime embraced within the facts alleged in the information, is not error.” This language is quoted by this court in Jahnke v. State, 68 Neb. 154, and other decisions of this court are there also cited.
• 2. The second contention in the brief is that the judgment of the district court should be reversed, because upon the trial evidence was allowed, as is claimed, of other crimes committed by the defendant. This matter is quite fully discussed in the opinion, but the brief makes reference to the testimony of officer Hayes, in. which he relates the admissions of the defendant Clark. It appears that, while this witness was testifying, counsel for the defendant objected to the witness making statements as to other crimes that may have been committed, and the objection was sustained. It is pointed out in the brief that the witness afterwards stated, referring to the admissions of the defendant: “He said that after he got through with the saloon they went down to the railroad track, and there divided the money.” It does not appear that any objection was made to this evidence at the time, and, so far as we can see, the evidence was entirely competent. The defendant and his comrades started out together upon a marauding expedition, in the midst of which this crime was committed. The fact that they divided the proceeds of their undertaking tends to show that they joined in the intent to rob as a means of obtaining the money which they divided. The intent to rob was one of the elements of the offense charged in the information. It was therefore competent to prove that the defendant participated in that intent.
3. In the opinion herein it was said that the trial court *484found that the prejudicial remarks attributed to the county attorney in his argument to the jury had not been made, and that the question was determined upon conflicting evidence, as well as upon the personal knowledge of the judge who tried the case, and that therefore the findings thereon ought not to be disturbed. In the brief upon the motion for rehearing it is pointed out that the prosecuting attorney filed his affidavit in resisting the motion for a new trial in the court below, and that in that affidavit it is admitted that in his argument to the jury the prosecuting attorney said, “The jury ought to bring in a verdict which will satisfy the community,” and also-used this language: “It has been said that there is no such thing as life imprisonment, and it has been said that life imprisonment means not more than ten years in the penitentiary because of pardons that may be granted.” It is insisted that the use of such language is prejudicial error. Manifestly the language quoted ought not to have been used by the prosecuting attorney, and if it appears from the record that the rights of the defendant were prejudiced thereby, a reversal of the judgment would be required. A person accused of crime can be convicted only by legitimate evidence establishing his guilt beyond a reasonable doubt. The trial court should not allow the prosecuting attorney to use any other means to secure a conviction. But, when no objection is taken by defendant’s counsel at the time, it will be presumed, in support of the ruling of the trial court, that the language complained of would not influence the verdict, unless the language itself is of such a character, or was spoken in such connection and under such circumstances, that it must necessarily have had that effect. A just verdict of the jury ought to satisfy the community that justice has been done, and to say that a verdict should satisfy a community might, if spoken in the proper connection, have liad that meaning, and no other. And so of the other language complained of, it might have .been so connected with other language used or accompanied with such expía*485nation as to be harmless. It is only in the most flagrant cases of the use of improper language, even in the prosecution of capital offenses, that defendant’s counsel can apparently acquiesce in the language used by remaining silent until the trial is finished, and then cause the trial and verdict to be set aside by complaining of statements to which he seemed at the time to consent.
We do not find sufficient reason for a further hearing of the case, and the motion is therefore overruled. The 13th day of December, 1907, is appointed and fixed as the day for carrying into effect the judgment and sentence of the trial court.
Rehearing denied.