dissenting.
The state in employing counsel in criminal cases will be unnecessarily and injuriously hampered by the rules announced. The successful prosecution of a guilty defendant in a contested case depends in a large measure upon the learning, skill and energy of prosecuting attorneys. A county cannot be expected to elect a prosecutor prepared at all times, without assistance, for every legal combat. Many eminent courts hold that the power to employ attorneys to prosecute persons charged with felonies is inherent in sovereignty. 30 Cent. L. J. 344. In the employment of counsel the county attorney, with the consent of the court, acts for the state. The trial judge, who is impartial in the contest, is acquainted with local attorneys and can readily acquaint himself with the character of the services demanded in each particular* case. Accused was defended by gifted lawyers. They are capable of emotional advocacy. They are not strangers to science or philosophy. They brought to their client not only their own zeal and accomplishments, but they searched the *627mysterious processes of nature in' his behalf, and enlisted the services of a chemical analyst possessing perhaps the highest possible degree of human skill. Their conduct was commendable, and accused, in being thus fortified, was strictly within his rights. In the presence of such adversaries is the sovereign obliged to employ impartial counsel who will confront them in obsequious humility? If so, the case might as well have been dismissed at the start. I believe in the doctrine that “the forensic contest should be fought with something like a just equality of opposing forces.” 30 Cent. L. J. 344. Any capable, upright lawyer who will conduct himself properly under the directions of the court may properly be called to assist in the prosecution. Counsel for defendant are partisans. The jury and the judge must be unprejudiced and impartial, but disinterested complacency should not be exacted of counsel for the state. Both the trial and the reviewing court should, in the midst of the legal storm, make rulings and enforce the law unaffected by sentiment or emotion, but the prosecutor should not be required to conform to that standard of official conduct.. Reviewable error must be predicated upon a ruling of the trial court. Unless the assistant prosecutor was guilty of some prejudicial act during the trial, no possible harm resulted from the order overruling the objections to his employment. An erroneous and prejudicial ruling in regard to a specific act of misconduct is essential to a reversal on that ground. Such a ruling has not been specifically pointed out by the majority. The criticism of the trial court and of the assistant prosecutor in this respect is, in my opinion, unmerited.
An attorney is not bound by any duty to advocate the punishment of the innocent for the purpose of shielding a guilty client. No lawyer worthy of his profession ever recognized such a tie, either before or after employment. Happily, the thirst of religious bigots and of political tyrants for human blood has not crept into our institutions. The fears formerly inspired by such abominations *628should therefore he laid to rest with the odious conditions under which they were begotten. Owing to human frailties, juries, prosecuting attorneys and trial courts may err, but the present record does not show any disposition on the part of those who participated in this trial to shed innocent blood under the forms of the law. The duty of the trial court is not confined to enforcing the right of defendant to a fair and impartial trial. There is an equal duty to see that the state has a lawful opportunity to establish its charge against accused. The violation of one duty wrongs the individual. The violation of the other wrongs society as a whole. The district judge is appointed by the constitution to be the arbiter between the individual and society collectively. In a criminal prosecution he sees the conditions as they arise. Any rule which improperly interferes with his discretion weakens his power and impairs the efficiency of the tribunal over which he presides. Rulings which have an unnecessary tendency to discourage and humiliate prosecuting officers in the performance of their duties, to weaken the power of the state, and to lessen respect for criminal tribunals, should be avoided.
I adhere to my dissent from the bloody-garment rule announced in McKay v. State, 90 Neb. 63, 91 Neb. 281, and followed in this case. It attaches too much importance to shadow, and too little to substance. The passions of sensible men who sit on juries play too tragic a part in records for review.
In my opinion the effect of the expert testimony, under all the circumstances of the case, was a question for the jury. It is not conclusively established by the evidence that decedent’s stomach went into the hands of the analyst as nature left it. It had previously been opened and examined. It may fairly be inferred from the evidence that part of the contents was missing. That part analyzed may have been eaten in the forenoon. The report of the analyst, therefore, does not annihilate the direct evidence of defendant’s guilt. If Science is to pronounce the decree *629of Omnipotence in a criminal prosecution, the hypotheses adopted by the scientist should be free from infirmities like those mentioned.