delivered the following dissenting opinion.
At the time of the filing of the former opinion, I acceded with some hesitation to the conclusion there *502announced, but after a careful re-examination into the errors assigned, and the law and evidence applicable thereto, I am unable to concur in the conclusion reached by the majority.
It will be remembered that Lem Woon at the time of his arrest, while in what is termed the same apartments as those occupied by his codefendant, was not one of the two Chinamen found hiding in the toilet where the pistol was discovered; the accused, when arrested, being in an adjacent room, and there is no testimony tending to show that the 41 Colt’s revolver, offered in evidence, was at any time in his possession or under his control, nor does it appear that Lem Woon was in hiding or attempting to escape detention further than that he was in a room adjoining the one occupied by his codefendant, and that the entrance to the entire apartments was barred, these rooms being the regular abode of the defendant and nine or ten others of his race. The revolver was admitted in evidence against him over the timely and proper objections of his counsel. It is well settled that subsequent declarations and acts, unless shown to be intimately and closely connected with the transaction, are not admissible against one accused of a crime: State v. Smith, 43 Or. 109 (71 Pac. 973; State v. Ching Ling, 16 Or. 419 (18 Pac. 844). The weapon was found in the place where Yee Gueng and Jo Bong were hiding, under such circumstances, and in such close proximity to them as to indicate its contemplated use by them in resisting arrest, if necessary, thus indicating to some extent at least that they were attempting to escape, from which guilt might be inferable, and so justify the revolver’s admission in evidence against them, as held by us in State v. Yee Gueng, (decided at this time) 112 Pac. 424. But, so far as serving to connect this defendant with the crime, the same rule does not apply. If admissible at all, it is only *503on the theory that it was a circumstance incident to the arrest, tending to show an effort to escape or in some manner to elude the officers. This assumption cannot be held, for the weapon was not in Lem Woon’s possession, and the fact that it was found in an adjacent toilet, occupied by others, is too remote. In this connection it must be remembered there were nine other regular occupants of the apartments at the time; that is, the quarters occupied by them was a Chinese lodging house. The mere fact that the Chinese society had formerly met there at various times was insufficient to justify the admission in evidence of the pistol in question against any or all persons happening to be either a member of such society, or found to be rooming in the quarters, without in some manner connecting them also with the weapon offered in evidence. This revolver was in the same position, with reference to its admissibility, as was the box of firearms found, the admission in evidence of which the court refused. To admit the weapon, under the proof accompanying it, is to rely on an inference from an inference, and not a deduction from an established fact, and this character of evidence is expressly excluded by Section 785, B. & C. Comp., which provides that the inference must be founded:
“(1) On a fact legally proved; and (2) on such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature.”
It will thus be seen that an inference could only be founded on a fact legally proved. No fact is here proved from which it may be inferred that this defendant owned the weapon in question, or in any manner possessed or intended to use it in resisting arrest. The circumstance of the door being locked indicating to some extent that *504he was evading the officers, and affording equal protection to all the occupants against arrest, might, if offered, have entitled the lock to admission in evidence; for, that fact once established, its purpose creates an inference as much against one occupant as another, the weight to be given thereto depending largely upon the conduct thereof after the door was forced open. This feature, however, was proved, and from it the jury might have inferred all were avoiding arrest, but these inferences were from established facts, and not inconsistent with the usual propensities or passions of men, mentioned in the above section of the code.
Not so, however, as to the pistol admitted. No proof whatever appears associating defendant with it. To connect him in any manner therewith it must be inferred that he either owned the weapon or placed it in the toilet in which others were hiding, and from that again infer that the motive for which it was placed in the toilet was for its use in resisting arrest by the occupants, of which he was not one. This is not only too remote a circumstance to entitle the weapon to admission, but is in violation of the above section of the statute: State v. Hembree, 54 Or. 463 (103 Pac. 1008). See, also, 8 Cyc. 680; 6 Ency. Ev. 699; 2 Wigmore, Ev. § 1157, p. 135; McBride v. Commonwealth, 95 Va. 818 (30 S. E. 454) ; State v. Arthur, 129 Iowa 235 (105 N. W. 422) ; State v. Kehr, 133 Iowa 35 (110 N. W. 149) ; Riggins v. State, 42 Tex. Cr. R. 472 (60 S. W. 877). Mr. Wigmore condemns the practice of admitting this class of testimony, and the Encyclopedia of Evidence, above cited, holds that “as a circumstance tending to connect the accused with the act changed, it is competent to show his possession of a deadly weapon or instrumentality similar to that with which the homicide appears to have been committed, at the time thereof, or within a reasonable time previous or subsequent, or that he prepared such a weapon for *505use. But it is not proper to show the possession of a weapon with which the wound could not have been inflicted.” The rule thus stated is fully sustained by the other authorities cited. Under the authority of State v. Wintzingerode, 9 Or. 153, we held this class of evidence in Yee Gueng to be admissible against those found in possession of the weapon, or in whose special hiding place it was discovered, but the same reasons cannot be invoked for its admission here.
That the admission of the weapon in evidence against this defendant must have prejudiced the jury against the accused seems clear — as much, if not more, than did the admission of the photographs admitted in evidence in State v. Miller, 43 Or. 325, 328 (74 Pac. 658, 659), on account of which a new trial was ordered. The observations in that case on this point apply with equal force here. After stating that photographs under some circumstances (concerning which the same may be here remarked with regard to firearms) are admissible, and after illustrating the class of cases in which they may properly be offered in evidence, Mr. Justice Wolverton remarks: “But unless they are necessary in some matter of substance, or instructive to establish material facts or conditions, they are not admissible, especially when they are of such a character as to arouse sympathy or indignation, or to divert the minds of the jury to improper or irrelevant considerations”—citing Baxter v. Chicago & N. W. R. Co., 104 Wis. 307 (80 N. W. 644) ; Selleck v. City of Janesville, 104 Wis. 570 (80 N. W. 944: 47 L. R. A. 691: 76 Am. St. Rep. 892) ; Fore v. State, 75 Miss. 727 (23 South. 710). So it may here be said that the admission of a weapon in evidence, not shown in any manner to be connected with this defendant, tended to divert the minds of the jury to improper and irrelevant considerations. Especially must this be true when it is remembered that the excluded box of weapons was during a *506large part of the trial permitted to remain in sight of the jury, to which was added the circumstance of the special counsel for the State requesting the witness by whom the revolver was identified to go to the box of weapons and take out this one, which the witness, in the presence of the jury did. All of this tended to direct the attention to the jury to the wholesale collection of weapons excluded, which were clearly inadmissible — as much so as weapons found in a gunsmith’s shop adjacent to a room occupied by one charged with murder.
Error is also predicated upon the remarks and interrogatories of the special counsel during the trial, much of which is set out in the former opinion in this case, the objection and consideration of which also excludes the alleged error of the court in admitting much of the cross-examination of Chin Ling, a witness for the State. The cross-examination of this witness in my opinion was permitted to be extended beyond reasonable limits. Much of it had no reference directly or indirectly to anything brought out on the direct examination. Regardless of this feature, however, the conduct of the special counsel, adverted to in the former opinion, in placing Jung Ah Poo upon the witness stand in the manner complained of, and in bringing matters before the jury by remarks and interrogatories held to be highly improper (even though objections to much of the course pursued were sustained), manifestly tended to prejudice the rights of the accused, and, while probably no one of the statements or remarks could be deemed sufficient to justify a reversal, yet taken as a whole they must, unless we disregard the legal rights of the accused, make a reversal necessary. The impropriety and the prejudicial effect of the interrogations and remarks of the character complained of are fully and ably considered in People v. Wells, 100 Cal. 459, 461 (34 Pac. 1078). In that case the defendant was charged with forgery. A Mr. Staniels was put on the stand as a *507witness for the prosecution. Afterwards the captain of the police, as a witness for the state, was examined, and the prosecuting attorney asked him this question:
“I want to ask one leading question, and do not answer it until counsel has an opportunity to object. Is it a fact that a short time after that Staniels came to you and reported about Wells wanting him to tell the woman to skip ?”
To this inquiry an objection was made and sustained. In referring to this interrogatory the appellate court observed:
“There was not the slightest excuse for asking this question. * * What, then, was its purpose? Clearly, to take an unfair advantage of appellant by intimating to the jury something that was either not true, or not capable of being proven in the manner attempted. And the wrong was not remedied because the court sustained an objection to the question.”
The court then proceeds to discuss other interrogatories of like character, which it will be noticed were analogous in effect and propriety to those here under consideration, and the observations concerning which apply with equal force to those here presented, upon which a reversal is asked. Mr. Justice McFarland remarks:
“The inexcusable asking of the foregoing question would not be perhaps of itself sufficient ground for reversing the judgment, but it is of importance when taken in connection with questions asked the defendant when a witness, as showing the general manner and temper with which the prosecution was conducted. Upon cross-examination of appellant the prosecuting attorney asked him these questions: Where did you formerly reside? Do you know the Highland National Bank of Newburgh, N. Y.? Were you married to your present wife when you came here with her? Did you not admit in a letter to Mr. M. C. Belknap that in November, 1893, you forged your father-in-law’s name to a note in New York?’ To these questions counsel for appellant objected as incom*508petent, immaterial, irrelevant, and not in cross-examination, declared that they were unfair to appellant, and asked the court to instruct the district attorney not to ask any more such questions. The record merely shows that after discussion the objections were sustained. The first three of these questions are important mainly as leading up to the last one, the asking of which was utterly inexcusable and reprehensible. It would be an impeachment of the legal learning of the counsel for the people to intimate that he did not know the question to be improper and wholly unjustifiable. Its only purpose, therefore, was to get before the jury a statement in the guise of a question, that would prejudice them against appellant. If counsel had no reason to believe the truth of the matter insinuated by the question, then the artifice was most flagrant; but, if he had any reason to believe in its truth, still he knew that it was a matter which the jury had no right to consider. The prosecuting attorney may well be assumed to be a man of fair standing before the jury, and they may well have thought that he would not have asked the question unless he could have proved what it intimated if he had been allowed to do so. He said plainly to the jury what Hamlet did not want his friends to say ‘As, well we know;’ or, ‘We could, an if we would;’ or, ‘If we list to speak;’ or, ‘There be, an if there might.’ This was an entirely unfair way to try the case; and the mischief was not averted because the court properly sustained the objection, though we think it should have warned counsel against the course which he was taking, and instructed the jury specially on the subject. The wrong and the harm was in the asking of the question. Of course, in trials of criminal cases, questions as to the admissibility of evidence will frequently arise about which lawyers and judges may fairly differ in opinion; and in such cases defendants must be satisfied when courts sustain their objections. But where the prosecuting attorney asks a defendant questions which he knows, and every judge and lawyer knows, to be wholly inadmissible and wrong, and where the questions are asked without the expectation of answers, and where the clear purpose is to prejudice the jury against the defendant in a vital matter by the mere asking of the questions, then a judgment against the *509defendant will be reversed, although objections to the questions were sustained, unless it appears that the questions could not have influenced the verdict.”
The holding in the above case is fully sustained by the great weight of authority. In fact, but few cases may be found where a continued course or attempt to ask questions ruled out by the court, tending to convey to the jury matters not admissible in evidence, and which, by their nature, are damaging in effect to the accused, have not resulted in a reversal: State v. Blodgett, 50 Or. 329 (92 Pac. 820) ; State v. Bartlett, 50 Or. 440 (93 Pac. 243: 19 L. R. A. (N. S.) 802: 126 Am. St. Rep. 751); State v. Reed, 52 Or. 377 (97 Pac. 627).
As to other errors assigned, I express no opinion. I deem the errors above considered ample to disclose that defendant did not receive the fair and impartial trial guaranteed by law to all persons, regardless of race or station in life, the recognition of which by the courts is essential to the safety of our citizens and to the perpetuity of our form of government.
The judgment should accordingly be reversed and a new trial ordered.
Mr. Justice Slater concurs in this dissent.