dissenting.
1. I am not able to concur in the majority opinion, although quite willing to concede its ■ plausibility and strength of argument. I conceive it to be the duty of ibis court to grant a new trial in a criminal case where it is *300apparent that the trial has been unfair, and thát the defendant in the case has been prejudiced by the fact of such unfairness. The defendant was charged with attempting to bribe a public officer, the county attorney of .Sarpy county. Section 176 of the criminal code, under which the defendant was prosecuted provides: “Every person who shall offer or attempt to bribe a public officer (and every public officer who shall solicit a bribe or who shall propose or agree to receive a bribe in any case) shall be fined in a sum not exceeding* five hundred dollars ($500) nor less than three hundred dollars ($300) and shall be imprisoned in the penitentiary for the period of one year.” The part of the section which I have included in parentheses relates to the public officer who solicits a bribe or proposes to receive one. It was enough for the court to have quoted that part of the section relating to an attempt to bribe a public officer, and it was wholly - unnecessary to encumber the jury, and perhaps confuse it, with that part of the section which I have included in parentheses. The danger was that the jury, fancying there was an issue between the county attorney and the defendant, might deem it necessary to find the defendant guilty in order to express their faith in the county attorney. Of course, the county attorney and the defendant were to some extent arrayed against each other concerning just what was said; and, when the trial judge put foreign matter into his charge which tended to create an issue between the county attorney and the defendant, it must have been calculated to confuse the jury as to what was the real issue. This was further aggravated by what the able and zealous prosecutor, Mr. Patrick, said. He was specially appointed to prosecute. It is undisputed that he said to the jury: “It is your duty to return a verdict of guilty, and, if not, it is (or will) be your duty to make a report to the court that Judge Begley is guilty of perjury, and recommend that the matter of his perjury be presented to the grand jury of Barpy county.” It is easy to imagine the florid and forensic force which accompanied this impassioned outburst. It was a “foul” in the contest which cannot be *301justified. Tlie legal game should he fair, always fair. The jury could not help being influenced by the judge and the prosecutor co-operating together; the one instructing the jury on a subject which did not come before them, that is, telling what the penalty might be for the one who solicited the bribe, and the prosecutor emphasizing the idea that it was their duty, if they failed to find the defendant guilty, to report the case to the grand jury against Begley. It is said in the majority opinion that that sort of misconduct must be objected to and exception taken to the ruling of the court at the -time it is made or that it will not be considered by this court. I do not think the rule is uniform ; but the better authorities give a new trial if the misconduct is likely to have done an injury. It should be remembered that, if counsel for the defense should arise in court to object, he does so at the risk of the prosecutor saying: “I told you so. That is where the shoe pinches.” As certainly as counsel object, just so certainly they hurt their case with the jury, and counsel for the state should not be alloAved to burden the defense with the task of making an objection which is certain to injure the defendant. A technical rule which tolerates the mistreatment of the prisoner in the presence of the jury deserves no defense. And to maintain the right to put a burden on the defendant which is sure to iujure him whatever course he pursues seems to the Avriter indefensible and cruel. It is like throwing stones at one who is swimming for shore.
In Carr v. State, 23 Neb. 749, the present chief justice, delivering the opinion of this court, said: “It cannot be believed that, in this advanced age of our jurisprudence, any court could be found who would permit such conduct, without visiting the severest penalty of the law upon the parties indulging in such actions. It matters not how guilty a defendant may be of crime, our constitution and laws guarantee to him a fair trial.”
In Leahy v. State, 31 Neb. 566, the defendant was on trial for rape, alleged to have been committed on one Lizzie Schultz. On cross-examination the defendant was asked if on the day succeeding that on which it was al*302leged he committed the crime he did not go to the residence of one B, and, there finding the daughter of B. alone, he did not attempt to drag her to a lounge. And counsel then said to the court, 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 kiss and hug Miss B.. and drag her to the lounge; ’ Miss B. having been summoned as a witness for the state, and being then present in the court.” Judge Maxwell, delivering the opinion of this court, said: “It was error, therefore, for the prosecuting attorney to make the statement which he did in the presence of the jury. * * * He acts in a semijudicial capacity, and is supposed to act alone from principle and without Mas 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.”
In Elliott v. State, 34 Neb. 48, there was a reversal of the judgment, because the county attorney in the cross-examination of the defendant asked him certain questions which were of a prejudicial character. “Q. Is it not a fact that you stole horses in Burnett county, Texas? A. I never did; no, sir. Q. Don’t you know that the sheriff has a warrant for you for stealing a horse in that county? A. I don’t know it; no, sir.” An examination of the original bill of exceptions, now on file in the office of the clerk of the supreme court, shows that no objection was made to these questions and no exception taken. It is not claimed in the original brief of the plaintiff in error, also on file in the same office, that there was any objection. This court, by Judge Maxwell, said: “The emblem on every courthouse, of justice holding the scales in equipoise, would be a meaningless symbol if even one of the poorest and most abject of humankind was unjustly deprived of a right.” It will be seen that the district judge made no ruling of any kind. He was not asked to do so. The reversal toas simply because of misconduct of the county attorney. The following cases are along the same line as Elliott v. State, supra; Chicago, B. & Q. R. Co. v. Kel*303logg, 55 Neb. 748; Ashland Land & Live Stock Co. v. May, 59 Neb. 735; Nickolisack v. State, 75 Neb. 27; Ashland Land A Live Stock Co. v. May, 51 Neb. 474.
In Chicago, B. A Q. R. Co. v. Kellogg, supra, it was said in the body of the opinion: “We do not, however, wish to be understood as holding that a. rebuke from the court, or a complete retraction by the offending counsel, is in all cases of this kind a sovereign remedy. If the transgression be flagrant — if the abusive remark has stricken deep, and is of such a character that neither rebuke nor retraction can entirely destroy its sinister influence — a new trial should be promptly awarded, regardless of the want of an objection and exception.” In that case a reversal was not granted because of misconduct of plaintiffs counsel; but the court said: “We have concluded * * * that the damages are excessive, and must have been assessed while the jury were yet under the sway of counsel’s superheated eloquence.” A reversal was ordered, unless there was a remittitur for $2,500, or leaving the judgment to stand affirmed for $6,500.
In Ashland Land & Live Stock Co. v. May, 59 Neb. 735, it was said in the body of the opinion: “We have little patience with counsel who deliberately seek to achieve success by lawless methods; and we do not hesitate, in any case, to deprive them of advantages tlvu.s obtained.” In the syllabus of that case it is said: “Where there is reason to believe that the jury may have been influenced in any degree in favor of the prevailing party by the misconduct of his counsel in arguing the cause, the verdict should be set aside and a new trial awarded.”
In Ashland Land & Live Stock Co. v. May, 51 Neb. 474, it is said: “In no instance did the trial judge rebuke counsel for plaintiff on account of his misconduct, nor was he directed to desist from using improper language, nor was the jury, either at the time, or in the instructions, admonished not to be influenced by them. The misconduct of counsel for the prevailing party in this case could not have been otherwise than prejudicial to the defendant, *304especially in view of the conflicting character of the evidence.”
In Nickolizack v. State, supra, the accused was a witness in his own behalf in a rape case, and the prosecuting officer on cross-examination asked him, in substance, “if he had not at a previous time been guilty of a like offense upon another young girl, naming her, and other like questions, and thereafter called the person named to the witness-stand and examined her, for the purpose of not only impeaching the accused but of proving him guilty of such independent offense; held, that such conduct was improper and prejudicial, for which the accused should be granted a new trial ”
In Ashland Land & Live Stock Co. v. May, 59 Neb. 735, it is said: “When this case was here before, a judgment in favor of the plaintiff was set aside because of the pernicious tactics of his counsel; and we would certainly reverse the judgment now under review, if there were reason to suppose that the jury were at all influenced in giving their verdict by the statements in question.” It will be noticed that it is not a question of whether objection has been made. It is the flagrant wrong done by counsel for the prosecution that determines the action of this court.
In Stratton v. Nye, 45 Neb. 619, counsel for the defendant made the charge in his opening address to the jury that the defendant Nye was the owner of one-half interest in a corn sheller, and that he “sold that half interest to Mr. Gilchrist, and after this he came to town and mortgaged the same half interest which he had sold to Gilchrist.” While there was an objection in that case, this court said: “The court should, especially when objection is made, reprove the parties in the hearing of the jury, and as far as' possible remedy the mischief by instructing the jury to disregard the prejudicial statements.” It will be noticed that the,court does not confine the right of the injured party to such cases as those in.which he has made objection. He is entitled to the relief whether he made objection or not.
*305In Martin v. State, 63 Miss. 505, the assistant prosecuting attorney said in his argument to the jury: “Martin * * * is a man of bad, desperate, and dangerous character. But I am not afraid to denounce the butcher boy, although I may, on returning to my home, find it in ashes over the heads of my defenseless wife and children.” There was no objection to this, and no exception, and the presiding judge did not interfere. The judgment was reversed. The supreme court said: “It is the duty of the presiding judge, as stated in Perkins v. Guy, 55 Miss. 153, and Cavanah v. State, 56 Miss. 299, to interfere of his own motion to prevent a breach of the privilege of counsel, and if he fails to do so, and the abuse of privilege is of such character as to produce the conviction that injustice resulted therefrom, the duty of this court is to apply the corrective by awarding a new trial.”
“The worst criminal is entitled to be judged by the laws; and, if his .conviction is secured by means of a perversion of the law, the injury to the cause of public justice will be more serious and lasting in its results than his being allowed to escape altogether.” Cooley, Constitutional Limitations (7th ed.) p. 478.
In McKay v. State, 90 Neb. 63, the court quoted briefly the language of Chief Justice Christiancy in Hurd v. People, 25 Mich. 405. “The only legitimate object of the prosecution is To show the whole transaction, as it was, whether its tendency be to establish guilt or innocence.’ The prosecuting officer represents the public interest, which can never be promoted by the conviction of the innocent. His object, like that of the court, should be simply justice; and he has no right to sacrifice this to any pride of professional success.” In that case Judge Fawcett, in dwelling upon the fact that the court permitted Mr. M. F. Harrington to assist in the prosecution, said: “The mere fact that the court permitted Mr. Harrington to assist in the prosecution cannot be held to be a compliance with the statute which provides that private counsel may be procured by the county attorney under the direction *306of the court. This provision of the statute calls for affirmative action by the county attorney and the court.” The judgment of the court below in that case was reversed, apparently because the prosecution was not considered to have been fairly conducted, and it was not considered that Mr. Harrington had been properly employed.
It is well to remember that it is- a serious thing to go to the penitentiary even just one year. Mr. Harrington went into the case of McKay v. State, 90 Neb. 63, at the “request” of the county attorney, at least the county attorney was not unwilling, and by “the order of the court * * * is permitted to assist the county attorney in the prosecution of this case.” Now the substantial objection to Mr. Harrington was the private interest he had in the case, being employed and “paid by the brothers and sisters of the deceased.” This same objection to private counsel is further emphasized in Flege v. State, 93 Neb. 610, where it is held that “no attorney should be appointed who is known to be a partisan as against the accused, and who has theretofore been employed and paid by another suspected person.” If the doctrine applied to the McKay and Flege cases, and which seems mainly responsible for their reversal, should be applied to the instant case, it is difficult to see how McMartin had a fair trial, because-Mr. Patrick had a private interest to sustain by securing McMartin’s conviction, not a private interest existing because of fees which had been paid him in some other proceeding, but Mr. Patrick was not the county attorney of Sarpy county, and he was in the case as Mr. Harrington was in the McKay case, and as private counsel was in the Flege case, by request of other counsel, and by permission of the court, and he had a personal interest in the enforcement of the amendment of which he was the. author. We quote from page 295, chapter 81, laws 1907 : “(Senate File No. 295. Introduced by Mr. Patrick.) An act to amend section 25 of chapter 50 of the Compiled Statutes of Nebraska for the year 1905 (C. A. S. 7175) and to repeal said original section.” The act contains this clause, which is the part of the act pre*307pared by Mr. Patrick: “Provided, that no license shall be granted by the authorities of any village for the sale of any liquor within two and one-half miles of any United States military post.” Rev. St. 1913, sec. 3869. In speaking of the relation of private counsel to the duties of a prosecutor in Flege v. State, supra, Reese, C. J., says that it is impossible to conceive of an attorney, situated as he was, entering “upon the trial with the single purpose of impartially seeking to know the truth, protecting the rights of defendant, and seeing that they were maintainéd, if need be, at all hazards.” The journal entry shows that the district judge appointed Patrick because “the county attorney is the prosecuting witness in the case.” Some one had to be appointed as prosecuting attorney for that case, and ordinarily no one could take exception to Mr. Patrick; but when he became a prosecutor, under the amendment which he drew, it is not at all strange that his zeal carried him beyond the calm discussion of the facts to imaginary duties that required the conviction of Begley as a perjurer if the defendant should not be found guilty. He was not after Begley; he was after McMartin.
The great danger was that the zeal of the private prosecutor in a liquor case where his amendment to the law was on trial for the first time, and the zeal of the witness who felt that his honor was at stake, were such that together they defeated justice. I have read all the evidence. If Judge Begley’s evidence is. to be analyzed and compared with the other testimony, the case is essentially weak. No doubt Judge Begley testified just as he felt and saw; but he may have looked through colored glasses, and he may have been unduly sensitive. In any event Begley’s testimony should be considered as a whole. It should not stand alone upon his conclusions. The defense is that McMartin did not intend to offer a bribe to any one. He testified in a manly way, and apparently without concealment. He admitted that he was selling liquor without license. He says that he told Judge Begley so; and Begley admits it. He says he wanted to know of Beg*308ley if they could not agree on a sum to be fined, and still keep going. He told Begley that “Patrick is the cause of that law. He was the father of the bill.” Judge Begley no doubt knew that. It should be remembered that the adoption by the legislature of the Patrick amendment to the liquor law meant a “dry” spot about Fort Orook five miles in diameter, and that as the spirit of the amendment was not in accord with the other parts of an act, which was in favor of local option the farmers and other people in the vicinity of the Fort may have complained. The amendment was probably unpopular with very many people besides the officers and soldiers of Fort Crook. McMartin probably had the sympathy of the community, which may have considered that its rights were invaded by the unpopular amendment which had not been voted upon by the people of the locality or their representatives. The public may have expressed their approbation of McMartin’s place of entertainment. There seems to have been three other places of the same kind. McMartin should not be prejudiced in the bribery case by his conduct in selling liquor, although that may have deserved punishment. He told Begley: “The people didn’t vote for this law, but it was forced on them without their consent, and you can’t blame them for violating it.” “I says, ‘Ain’t there some statute where they can be fined, and still keep going?’ I said, ‘The farmers like a glass of beer when they come to town.’ * * * I says, ‘I understand down in Iowa they have got a law where they can be fined.’ ’’ McMartin testified: “Q. When you asked him (Begley) if the parties could be made to pay fines that would go to the county, what did he say? A. He said it couldn’t be done — there was no law to that effect. I says, ‘They do it in Iowa.’ He says, ‘They have got a different law in Iowa.’ ” Why did they talk about Iowa if they were not talking about adopting the Iowa plan, and if they talked about adopting the Iowa plan what necessity was there for such talk if it was just a plain case of offering to bribe? This supports McMartin’s claim.
*309Judge Begley testified: “Q. Didn’t Mr. McMartin also admit in his testimony down there that he was engaged in the traffic down there at that time? A. Yes, sir; on cross-examination. Q. Did McMartin say anything in the lower court as to his object in trying to get fines for himself and two other fellows? A. Yes, sir; he said in his testimony on cross-examination that he came up there to see me for the purpose of offering to pay me a fine of $50 apiece for himself and two other gentlemen to operate down there continually.” Judge Begley only admits the truth of part of McMartin’s testimony, and that is that McMartin admitted that he was then engaged in the liquor traffic. Judge Begley’s testimony, fairly considered and taken altogether, might have acquitted the defendant under impartial conduct by Mr. Patrick.
2. In Langdon v. Clarke, 73 Neb. 516, this court set aside the verdict where the district court had instructed the jury that words of provocation may be considered in mitigation of damages Avhere there actually were no Avords of provocation. Langdon had been struck by Clarke with his fists, and sued Clarke to recover damages for the assault. The only testimony of anything said by Langdon prior to the time when he Avas struck was that he (Langdon) Avas not a liar, that he Avas not afraid, and that the plaintiff could not make him run. We quote from the opinion : “There Avas no evidence of any Avords used by the plaintiff Avhich the jury Avere entitled to take into consideration in mitigation of damages. Hence, this portion of the instruction was not warranted by the evidence, and was, we think, prejudicially erroneous. The jury may well have thought the Avords used were proper to consider in mitigation of damages, and in consideration thereof reduced the recovery to nominal damages, and by reason of the request of counsel hereinbefore discussed rendered a verdict for the defendant instead of for reduced damages.” The instruction as quoted in the brief in the instant case is: “Where there is no evidence of provocative words, it is error to instruct the jury that mere words of provocation are not sufficient to justify a person in committing an as*310sault and battery upon another, bnt the words may be considered in mitigation of damages.”
3. Grant Chase, the sheriff, testified on behalf of the state that he had a conversation with McMartin in his office when McMartin was waiting to see the county attorney, Judge Begley; that McMartin said: “He wanted to see the county attorney — see him alone so his word would be just as good as the county attorney’s.” He was then telling the sheriff of the county that he was going to talk to the county attorney about something of a criminal character, and that, if the county attorney should testify about it, there would be his testimony against the testimony of the county attorney as to what was said. McMartin apparently did not consider the proposed subject of enough importance to be very secretive about it, or he would not have been telling the sheriff, whose duty it is to arrest offenders, and to assist in procuring them to be punished. The way that McMartin talked to the sheriff tends to show that he came to see the county attorney for the purpose of preventing a future prosecution for selling whiskey without license. He was willing to close up if the county attorney wished him to do so. It is shown by the questions asked that the prosecutor asked the defendant many questions with a view to emphasizing the fact before the jury that he was guilty of selling liquor without license, and that he had been convicted of that offense. Questions 162, 163, 164, 165, 166, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, and 178 show the purpose to emphasize such conviction. Question 180 is directed to the inquiry as to whether the defendant paid $12 a month for the privilege of illegally selling liquor without license. Mr. Patrick also inquires if the other “bootleggers” at Fort Crook did not pay the village $12 a month for the privilege. The effort to try the defendant on some other charge than that contained in the information was'rather persistent, and could not well have been otherwise than prejudicial. Kanert v. State, 92 Neb. 14.
*311The attorney for the defendant requested the giving of the following instruction, which was refused: “The jury are instructed that, in considering the testimony of an officer, or officers, whose duty it is to pursue, arrest,- and prosecute criminals, you should consider it with caution, because of the tendency of such officers to hear and remember those portions of conversations and evidence against the defendant, and not hear or remember such portions as may be in favor of the defendant.” This instruction or one of like character should have been given. Kastner v. State, 58 Neb. 767; Sandage v. State, 61 Neb. 240, 87 Am. St. Rep. 457. The interest of a police officer in securing the conviction of the person he prosecutes is usually not greater than the interest of a sheriff. The office which the man holds who does the work of ferreting out the evidence should not determine the question of his interest. That is determined by what he does. In the latter case it is said in the syllabus: “Where informers, detectives, or other persons employed to hunt up testimony against the accused are called to testify against him, he is entitled to an instruction to the jury that in weighing their testimony greater care should be exercised than in the case of witnesses who are wholly disinterested.” An active sheriff, because of increased efficiency, is generally more dangerous to the defense than even an active policeman.- He often has a wider range of vision, and, not infrequently, he is more in the habit of managing men with a view to securing results. The dignity of his ■ office makes him nearly always in the employ of the state.