On Petition for a Rehearing.
Elliott, J.Where an attorney in addressing the jury makes a statement that he has no right to make, and that statement is of a material character, there is more than a harmless error. The error of the court in declining to interfere will require a reversal, unless it clearly appears that the-verdict is right on the evidence. Where there is a conflict of evidence the error must be deemed prejudicial, and this must be presumed in the absence of the evidence.
The rule that presumptions will be made in favor of the trial court does not apply where the record affirmatively shows a material error. The case of Shular v. State, 1 05 Ind. 289, is not in point.
Where counsel make an improper statement of a material character, the only method by which its influence can be neutralized is by the prompt and decided interference of the court. A mere retraction by counsel is not enough where-the opposing counsel properly invokes the aid of the court.
Petition overruled.