dissenting:
In my opinion this judgment should be reversed on account of the improper and highly intemperate remarks of the State’s attorney in his closing argument to the jury. Plaintiff in error attempted to show in his defense that he was doing everything in his power to control and discourage the vice and prostitution prevalent in his district, and that as a result of his activities along that line certain of the denizens of the district had conspired to discredit and ruin him. The State relied for its conviction chiefly upon the testimony of the two Franks, who were admitted to be interested in the conduct of two houses of prostitution,— a disreputable and illegitimate business. Anything that tended to contradict either of them in any material matter was of importance to the defense. The testimony of the witness Boyer that Louis Frank said to him in the early part of the year 1909, “Business is very poor; the administration isn’t letting up any,” contradicted the testimony of Frank, and, if true, tended strongly to corroborate the claim of the defense that plaintiff in error was attempting to rigidly control the illegitimate business in which the Franks and others were engaged in that district. Plaintiff in error was entitled to have this testimony go to the jury without any improper attack being made upon it. If Boyer was not a credible witness, there are well defined rules, with which the State’s attorney must have been familiar, governing the methods by which he might have been impeached. The State’s attorney did not see fit to avail himself of any proper method of impeachment. When Boyer was first on the stand his cross-examination was waived. The next day he was recalled for cross-examination. .That examination was as follows: ' 1
Q. “Were you not convicted in the Philippine army, as a member of the regular army, for embezzlement?
A. “No, sir.
Q. “Were you not sentenced to dismissal and one year’s confinement, and it was held illegal because the court was .composed partly of regular officers? (To this question objection was interposed on the part of defendant.)
The court: “Objection sustained. The only proof is to be made by record.
Mr. Wayman: “Unless he would admit it.
The court: “And he denies it.”
No attempt was thereafter made by the prosecution to show that Boyer had been convicted of any crime that would affect his credibility, and the State’s attorney seeks to justify his use of the language quoted in the majority opinion, and his offer to read to the jury the alleged telegram from the war department at Washington, on the ground that one of the counsel for plaintiff in error in his argument stated to the jury, referring to this cross-examination of Boyer: “If that was true, why not prove it ? Why malee that assault on the man? Boyer was not a man convicted as an embezzler, yet he was able to assault him unjustly.” Whether there could be any justification for the statement of the State’s attorney, it cannot be said that under the circumstances there was anything improper in the argument of counsel for plaintiff in error on this point.
In addition to the other instances cited in the majority opinion, the State’s attorney, on a number of occasions, traveled outside the record in his argument to the jury. His statements on these occasions were not in reference to matters so material as those pointed out, but they were all calculated to improperly influence and prejudice the jury, and no doubt had that effect. In referring to a character witness called on the part of plaintiff in error, he stated that the chief thing in his career was that he had beaten a lawyer up so that he died in an insane asylum. Of Rev. E. A. Bell, another character witness, he stated: “My only connection with Mr. Bell, and my only introduction to him, was when he interceded with all his might to save from the gallows a dirty burglar who had shot down a police officer in the middle of the night, and I would not stand for it. * * * I stood by the police force at that time and Bell did not. Don’t'tell me Bell knows more about this case than I do.” Again, in attempting to bolster up the reputation of Frank, who owned two houses of prostitution, he stated that there was not an estate in Cook county that did not own houses used for the purpose of prostitution, and named the estate of one prominent citizen of Chicago as being among the number. These statements were all objected to and the objections sustained, but the jury heard the statements made and these rulings of the court could not have the effect of removing from the minds of the jurors the impressions created by hearing the statements made. Some of these remarks were of such .a character and were concerning matters so material, and were calculated to so influence the jury, that it is impossible to say they produced no effect or that the verdict of the jury would have been the same had they not been made. This is particularly true of the Boyer incident and of the attack made on the record of plaintiff in error as a member of the police force, which is set out in the majority opinion. If the jury believed the testimony of the Franks it was inevitable that they must find the plaintiff in error guilty. On the other hand, if they did not believe their testimony it is very improbable that a verdict of guilty would have been returned. Anything bearing upon the credibility of either of these witnesses was a material matter and plaintiff in error had the right to have it properly presented to the jury.
In my opinion the misconduct of the State’s attorney was so gross and so prejudicial in its tendency that it is impossible for this court to say that the jury were not influenced by it. We have not hesitated, in civil cases, to reverse a judgment on account of impressions wrongfully conveyed to the jury’s mind by improper conduct of counsel. (Chicago City Railway Co. v. Gregory, 221 Ill. 591; McCarthy v. Spring Valley Coal Co. 232 id. 473.) The rule in this regard should be more strict in criminal cases than it is in civil cases. . In McKevitt v. People, 208 Ill. 460, we said concerning similar conduct (p. 468) : “The prosecuting attorney, who thus violated a fundamental rule of practice, should not be permitted to sustain a verdict if his conduct has contributed to the conviction of the defendant.” And in the earlier case of Raggio v. People, 135 Ill. 533, in discussing the same subject, we said (p. 545) : “The trial court erred in overruling defendant’s objections to these statements, and while a court of review will always hesitate to set aside a conviction for such error alone, yet in a case like this, where there is much reason to fear that the verdict was not the result of a dispassionate consideration of all the evidence in the case, it becomes material and substantial error.” In this case there is reason to fear that the verdict was not the result of a dispassionate consideration of the evidence, and as was said in the McKevitt case, supra, the prosecuting attorney should not be permitted to sustain this verdict if his conduct has contributed to the conviction. I have not attempted to set out all of the remarks of the prosecuting attorney that were objectionable, but for the reasons given above this judgment should, in my opinion, be reversed.