Defendant stands convicted of murder in tbe second degree, it being alleged tbat be caused tbe death of a certain young woman upon whom be performed a criminal operation. This is bis second conviction, tbe first having been set aside by this court. See same title, 20 fT. D. 114,' 126 ET. W. 568. At this time be does not challenge tbe sufficiency of tbe evidence received to sustain tbe conviction, but complains of certain rulings of tbe trial court and misconduct of tbe assistant prosecuting attorney. Owing to tbe excellent presentation of this appeal, we are able to dispose of tbe case with tbe minimum amount of labor. Appellant groups bis assignments of error under four beads, and we will dispose of them in order.
(1) Upon tbe first trial of this case, one Dr. Engstad was sworn as a witness and testified tbat be bad examined tbe girl some six days prior to her death, and bad found her in robust health. Bpon bis cross-examination be was asked by appellant’s attorneys whether an infection caused by an injury to tbe uterus might not remain dormant a greater or less period of time before it spread out and gave evidence of its presence. This question was objected to by the state, and tbe objection sustained. In tbe former opinion this court held tbat this ruling was error; tbe said ruling being based upon tbe statement of the testimony at tbat time presented; it being deemed proper to show tbat tbe girl might have already inflicted upon herself tbe wound that caused her death, and that tbe doctor was mistaken in stating tbat her health was good at the time be examined her. At tbat trial, however, *167the testimony of the doctor was narrated, and this court, not having-had its attention called thereto, was misled and made the ruling alleged ; hut at the present time it appears from a fuller statement of the testimony that practically the same question had been asked the doctor, and that he had answered it without objection from the state. Thus, the ruling of the trial court in the former trial was error, if at all, without prejudice. All of this becomes relevant to this appeal when we find that upon the present trial Dr. Engstad was out of the state and could not be found. His testimony given upon the former trial was thereupon offered in evidence to prove the same facts. Appellant does not seriously dispute that the testimony of the doctor taken at the former trial might have been used if a proper foundation were laid therefor, but insists that such foundation was not laid. In particular they assert that upon the first trial defendant was denied the right to fully and fairly cross-examine Dr. Engstad. As we have already shown this is apparently so only. It thus follows that the testimony ■’ the doctor taken upon the former trial was admissible.
(2) The second group of errors relates to the admission of certain testimony showing acts of one Dale, whom the state alleges to be a fellow conspirator with the defendant and the girl in procuring the abortion. Objection is also made to the instruction of the trial court in mentioning conspiracy at all. Dale, it is alleged, was the man responsible for the pregnancy of the girl. It was shown at the trial that he came to Minot a day before the girl, and engaged the room at the hotel wherein she died; and that he was seen in consultation with the defendant; that he bought for the use of the girl and doctor certain articles, such as distilled water, that were found later in the girl’s room; that he was seen frequently in the room just before her death; that he was seen carrying the slop jar from the room, and that it was afterwards found to be bloody; that when the girl died defendant sent a man across country 60 miles to bring Dale into Minot. Defendant admitted that Dale was the person who had asked him to attend the sick girl. All of these acts took place between the 3d and Yth of October. Upon these facts the trial court instructed the jury that they might consider the acts of Dale only if they found a conspiracy existed, and that, if they did not find such conspiracy, the actions of Dale should be disregarded. We believe that testimony was properly ad*168mitted and that the instructions of the court were pro,per. All of the acts were in furtherance of the offense and part of the res gestee. The statements of Dale not so related to the offense, and which were condemned by this court upon the first appeal, were not offered upon this trial. Eor a full discussion of this subject, see the famous Anarchist Case, Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 6 Am. Crim. Rep. 570, 3 Am. St. Rep. 320 (note at page 478).
(3) The next group of assignments of error relates to two hypothetical questions ashed of the expert Dr. White. In paragraph one we have held that the testimony of Dr. Engstad, given upon the first trial, was properly received at the second trial. After this question had been received Dr. White was asked a very lengthy hypothetical question based upon the assumption that all of the state’s evidence, including Dr. Engstad’s, was true. The material parts of Dr. Engstad’s testimony were that the girl had called upon him October 1st, and had been by him examined with the result that he found nothing wrong with her lungs, heart, or other organs, and that she appeared to him to be in excellent health. He had seen her a day or two later upon the street with a satchel going towards the Great Horthern depot, and she seemed in good health. He also testified that she had no temperature upon the first examination, and that she was pregnant. All of these facts were assumed as correct in the.question asked Dr. White, and were well within the rules. Then Dr. White was asked, “In your opinion, assuming these facts to be true, what was the cause of death ?” Of course, the testimony of all the witnesses in the case was included in the first question and also in the second. As we have already held the admission of Dr. Engstad’s testimony proper, the principal ground of complaint is disposed of. There was plenty of evidence to justify the questions, and the competency of Dr. White is conceded. Therefore there was no error in allowing him to answer. To be true Dr. Engstad admitted the possibility that the girl might have been carrying the germs that caused her death at the time 'of his examination, but he says that it was a possibility only, and not a probability. Until mankind is much farther along upon the road to learning, it will not be safe to disregard the testimony of a witness because he admits the possibility of an error in his judgment.
(4) This brings us to the final group of assignments. It relates *169to alleged misconduct of an attorney who was assisting the state’s attorney during the trial. This attorney, Hr. Sinkler, in closing his remarks to the jury, used language of which defendant now complains. It will not he necessary to set much of it out in this opinion, hut the gist of the statement is as follows: “A moloch who kills unborn children for the sake of the almighty dollar,” “professional abortionist,” etc. It is claimed that these statements are not supported by evidence and prejudicial to the defendant. The conduct of the state’s attorney and his assistants should he dignified, truthful, and honorable, and yet vigorous and convincing. It is hard to lay down fast rules to cover every possibility that may arise. The state’s attorney may be driven to make indiscreet statements by taunts of opposing counsel, or he may be induced to make passionate remarks by some action of the defendant himself. In the case at bar it appears from Mr. Sinkler’s remarks, that the defendant had smiled at some of his statements made to the jury. In the heat of combat something may be said or done that needs correction. The trial court is there for that purpose. If the state’s attorney makes remarks such as the above, the defendant must make complaint at once, or the trial court may concliide that they are not objectionable. In the case at bar no complaint was made to the trial court, because, as counsel states, “he did not care to interfere with the argument.” Some attorneys take swift advantage of the sympathy of the jury for anyone in trouble, and use the remarks of the state’s attorney as a basis for a “fair-play” appeal to the jury. In the absence of complaint, the court may have assumed that such was the intention of defendant’s attorneys. The matter is one largely in the discretion of the trial court, who heard all of the argument, and heard and saw the possible provocation. This court in the case of State v. Knudson, 21 N. D. 562, 132 N. W. 149, has passed squarely upon this point, and we see no reason to disagree with the rules therein established. Without approving of the remarks made, we must decline to reverse the case in the absence of timely objection and a ruling by the trial court. The other assignments of error are covered by the foregoing, or are unsupported in appellant’s brief. Rinding no error, the judgment is affirmed.
Goss, J. disqualified. ISTuchols, District Judge, sitting in his stead.