(dissenting). I. I cannot concur in the conclusion announced by the majority on the question of misconduct of counsel for the State. The case is of such great importance, and the conclusion of the majority is such a radical *1182departure from the former holdings of this court and many others, that I deem it not improper to state my reasons for dissenting from the pronouncement made.
I know of no more solemn and important duty that can be imposed upon this tribunal than that of determining whether or not one whose life has been adjudged to be forfeited has been tried in accordance with established rules of procedure in criminal cases. I do not think it is a proper function of this tribunal to determine criminal appeals on the basis expressed in the majority opinion, that “this is a second trial and a second appeal of this case. ” The majority say:
“In the instant case, the defendant’s written confession and all the evidence in the case show beyond any doubt that he is guilty, as charged. • Would it be anything but a miscarriage of-justice .to reverse this case? It is indeed difficult to see it in any other light. ” • ■.
I- confess I cannot see it in any such light.
I differ from my brethren of the majority in the views above set forth and repeated in various forms throughout the opinion. I do not -understand it to be the function of this court to determine in our own minds whether or not we think a defendant is guilty, and, if satisfied of his guilt, then to affirm a case. I hesitate to declare it to be the rule of this tribunal that to reverse a criminal case because of substantial and prejudicial errors committed upon the trial is “a miscarriage of justice,” even if we believe the defendant to be guilty, and even if it is a second appeal.
The statute, -Code Section 5462, requires this court, in a criminal case, to ‘ ‘ render- such judgment on the record as the law demands-.”
Except-where the insufficiency of the evidence to sustain the verdict is made a ground of reversal, heretofore we have determined criminal appeals on questions of law, and not as triers of fact to determine the guilt or innocence of the defendant. I do not regard it as “a miscarriage of justice” that even the guilty shall be-tried “as the law demands.” - Nor do I regard the fact that this is “a second appeal,” justification for' the *1183overruling of precedents and the establishment • of new rules of criminal procedure.
This appeal involves no “hair-splitting technicality.”'; It goes to the basic and fundamental proposition of the- right of one accused of crime to have a fair and impartial trial'in accordance with well established rules of law. If this has been denied, I think we should reverse, even though there has- been a second conviction, and even though we may believe tile defendant to be guilty. There is still virtue in the saying that “two wrongs never make a right.”
The guaranty of a fair and impartial trial to one accused of crime is of the very genius of our institutions, it cannot be denied to the humblest citizen without doing violence to the very fundamentals of our American conception of the rights of men.
Was the defendant in this case denied a fair and impartial-trial? If the precedents still have efficacy, I think there can be but one answer, upon the record.
The majority do not cite a single authority in any way' analogous to the record in this case, to sustain their 'conclusion. None such exist. We are “pulling down the-bars” by this de'éi-' sion, sanctioning a new method of trying criminal ease^-Aot heretofore countenanced, and declaring that criminals may now;, be tried in Iowa by methods heretofore unhesitatingly disapproved and condemned. Against such an innovation I can only raise a voice of protest.
In this action, the defendant was charged with muídér in the first degree. This furnishes the sole' and only- exception known to our law where the jury not only determines the gúilt'- or innocence of the accused, but, if he is found guilty, fixes the penalty to be imposed. Code Section 4731,
Where a trial court has-a-discretion in the - imposition' of a sentence, we have power to modify it on appeal. Code Section 5462. It is doubtful if we possess any such power where the-jury fixes the penalty. At least we have never assumed to have it. So, in this particular situation, we ,are dealing -with thé one instance known to our law where the jury imposes the penalty, and where the extent of the penalty so imposed is not subject' *1184to judicial review. This, situation, and the fact that in such a ease a defendant is on trial for his life, are considerations which, in my judgment, impose upon us the most grave and serious responsibilities that can be placed upon a court.
The jury, in this case, was confronted with a twofold duty: one, to determine the question of the guilt or innocence of the defendant; the other, to fix and determine the penalty that should be imposed, in the event that the defendant was found to be guilty. The evidence upon the trial and the arguments of counsel should, in such a case, be properly directed to the enlightenment and aid of the jury in performing this double duty. Proper and legitimate evidence on the question of the guilt or innocence of the defendant should always be received in such a case, and legitimate and proper argument to assist a jury in their duty should be indulged in. Anything outside of this, in either evidence or argument, should have no place in a trial of such solemnity and vast importance.
As I view it, the record in this case shows transgression by the prosecution in both respects: in the introduction of improper and prejudicial testimony, and in the making of inflammatory, prejudicial, and improper argument to the jury. The paucity of statement regarding these matters in the opinion of the ma-. jority makes it excusable that the record be set out, to some extent.
I take up first the question of the admission of improper testimony.
Let it be remembered that the defendant was a colored man, on trial for killing a woman with whom it was claimed he had been intimate, in violation of his marital vows. The State, as it had a perfect right to do, • produced the revolver with which it was claimed the shooting had been done. The revolver had been surrendered by the defendant to the sheriff, and no question whatever was raised as to its identity. The State, however, called the witness Meyers, to prove that he had sold the revolver to the defendant. Without objection, he did so testify, and fixed the time and place of the sale. He was then asked to whom he delivered the revolver, and, over the objection of the defendant, testified, “To a woman by the name of Dora *1185McGee.” A motion to strike the answer was overruled. He also produced a paper, which was identified as Exhibit B, and which he testified was given to him at the time the revolver was purchased, guaranteeing the money for the gun. A motion to strike this evidence was overruled. He was asked who signed the paper, and, over proper objection and motion to strike, was permitted to answer, “Dora McGee.” Also, over objection, he was permitted to testify that the defendant and Dora McGee came to his store together, and left together.
The defendant was a witness in his own behalf. On cross-examination, the special prosecutor began to interrogate the defendant in regard to the woman Dora McGee. The following took place:
“Q. You knew that she was Charley Dutton’s wife, didn’t you? A. No, sir. Q. You knew her name was Dora McGee, didn’t you? A. They called her Dora McGee, and they called her Mrs. Dutton. I do not know which is her proper name. Q. You knew that she was married to Charley Dutton? (Objected to as immaterial, and not cross-examination. The court: Objection sustained. Exception.) Q. And that she was a white woman? (Same objection. The court: Objection sustained. Exception.)
“Daniel F. Steck: I want to object to counsel asking the question, as being improper, and counsel knows that it is an improper question to ask this witness on cross-examination.
“Lloyd L. Duke: Withdraw that question.
“Q. Now, you got the gun of Sol Meyers? A. Yes, sir. Q. And this woman stood good for it? (Objected to as not proper cross-examination. The court: Objection sustained, as not proper cross-examination.) •
“Daniel F. Steck: I wish the court would caution counsel that it is improper cross-examination, and that he should refrain from it.”
Immediately after this, however, the following took place:
“Q. And yet you and Charley Dutton were on intimate enough terms that you brought this woman, whom you said was called Mrs. Dutton sometimes, and Dora McGee sometimes, back and forth to see Charley Dutton when he was in jail? (Objected *1186to as argumentative and not proper cross-examination. The court: Objection overruled. Exception.) Q. Isn’t that true? A. Yes, sir. Q. And you were on good enough terms with the woman that you say was Dutton’s wife, that she stood responsible for you when you bought this 45-ealiber automatic revolver ? (Objected to as improper cross-examination. Objection sustained.) ”
Not content with this, in argument to the jury the special prosecutor said:
‘ ‘ Now, then, it is a peculiar circumstance, in my mind, that, just three days previous to the killing, that 'this fellow wanted a gun. He wanted an automatic revolver so badly that what did he do? The evidence shows this: That he went down to the pawnshop, in order that he might buy an automatic revolver; that he selected a revolver there, and he even went so far that he went up and got Dora McGee, who lived up over the pawnshop, or somewhere in that vicinity, and got her to stand responsible, or to stand as surety for that revolver. Now, then, the question in my mind is this: What did he have in mind ? What was the necessity of his having the revolver? He liad not been carrying a revolver for several weeks previous to that. I believe he claims that he lost the gun, some two or three weeks or more previous to that, but, for some unaccountable reason, he wants a gain so badly, for some purpose, and to the extent that he goes up and gets Dora McGee to come, down to that pawnshop and stand responsible for the payment of the gun. * * # I believe that, back there three days before this crime ivas committed, that he was premeditating on something of this kind; else why should he have been so anxious to have an automatic revolver that he went and got Dora McGee to come down there and stand surety for the buying of that gun? * *.* They claim that Charlie Dutton, — and this fellow was hauling Dorn McGee back and forth, to the .jail and home again, and was evidently on friendly terms with Charlie Dutton.”
No one reading this record can have any misgivings whatever about the purpose of the attorney for the State in pursuing this course. It was not done innocently, unwittingly, or inadvertently. It was a studied, deliberate, and intentional pur*1187pose to bring into the case, by improper examination of the State’s witness Meyers, by improper cross-examination of the defendant, and by wholly improper argument, a matter that was entirely foreign to the case on trial, and that could not be otherwise than highly prejudicial. The majority attempt to excuse this conduct and to hold that it was nonprejudicial. It is the very kind of conduct that we held constituted reversible error, upon the former trial of this case (194 Iowa 628, 636). No one can read this record and escape the conclusion that the State was deliberately and intentionally trying to impress upon the jury, by this line of procedure, that the defendant, a colored man, had been untrue to his marital vows, and in addition to that, had been consorting with a white woman whose husband was in jail, and that he was on such familiar terms with her that she had become surety for the payment of the revolver which he owned, and that he was driving her back and forth to the jail. No one can be so obtuse as to believe for a moment that this evidence, forced into the record over repeated objections, and reiterated in argument, was a “mere inadvertence,” and was “incidentally received in evidence.” The conduct was more flagrant than that which occurred in the former trial of the case, and for which we granted a reversal. There might have been some excuse for the attempt in the first trial to drag into the case irrelevant matter of this kind, to reflect upon the defendant, but there was no excuse for it upon the second trial. The only way that the decision on the former appeal was sought •to be evaded by the prosecutor in the retrial was to select some other white woman about whom to cross-examine the defendant. All the change, in effect, that the State made between the former trial and this trial was that it saw fit now to abandon the interrogatories about the other white women with whom it claimed defendant had been riding, and to substitute a new white woman in their place.
I am not prepáred to hold that the decision of this court in the former appeal in this case can be evaded in any such manner. Upon this record alone, without more, I think we should unhesitatingly reverse this case, and not permit the ruling of this court to be evaded by any such transparent make*1188shift. That it is misconduct to persist in propounding improper questions having a tendency to discredit a defendant in the -eyes' of the jury, has heretofore been regarded as too well grounded in the law- to require citation of authorities to sustain it.
In State v. Scott, 194 Iowa 777, we recently had a case before us that involved exactly this kind of misconduct. A man charged with murder was asked if he had not been named after the confederate general, Robert E. Lee; if he did not have Indian blood in his veins; if he had not shot a man in Missouri, and killed another in Arkansas; and other similar questions. Speaking by Mr. Justice Evans, we said:
“If a case were close and doubtful in a material respect, and if the unwarranted conduct is calculated to obscure the point and to deflect the minds of the jury away from it, rather than to invite candid consideration of it, we must, of course, find prejudice more readily than otherwise.”
We reversed for this misconduct in the examination of the defendant. If the conduct of counsel in the persistent asking of improper questions for no other ostensible purpose than to prejudice the jury against the defendant is now to be sanctioned as nonprejudieial, and as proper practice, under a guaranty of a fair and impartial trial, then we should unhesitatingly declare that we were in error in reversing this case before, and should courageously overrule State v. Scott, supra, and similar cases. This I am not prepared to do.
My views that the misconduct in this respect was a denial of a fair and impartial trial are sustained-by abundant authority. I cite but a few, by way of illustration. Gale v. People, 26 Mich. 157; People v. Wells, 100 Cal. 459, 462 (34 Pac. 1078); People v. Cahoon, 88 Mich. 456; Leahy v. State, 31 Neb. 566; State v. Trott, 36 Mo. App. 29; People v. Mullings, 83 Cal. 138 (23 Pac. 229); People v. Ah Len, 92 Cal. 282 (28 Pac. 286); Wyatt v. State, 58 Tex. Cr. 115 (124 S. W. 929); People v. Teiper, 186 App. Div. 830 (175 N. Y. Supp. 197); People v. Manganaro, 218 N. Y. 9 (112 N. E. 436); also, dissenting opinion of Kenyon, circuit judge, in Wild v. United States, 291 Fed. 334.
II. The misconduct of counsel for the State, however, was *1189by no means limited to the matter I have just discussed. The argument to the jury was inflammatory, and so prejudicial as to be a denial of a fair and impartial trial, and to require a reversal of the case. It is impossible, within the reasonable length of an opinion, to set out any more than a few excerpts from the argument, which are illustrative of its character and purpose. After a lengthy discourse to the jury about the opportunity the defendant had had for acquiring an education at the public schools of the state of Missouri, where he had formerly lived, the argument then proceeded:
“I say that this man Burris, this defendant in this case, is absolutely incapable of gratitude, it occurs to me, for what has been done for him. * * * I wonder if he ever stopped to think that the colored race in the main — I wonder if he ever stopped to think that that race of people — that the Civil War was not fought so much over the question of states’ rights.as it was fought over the question of emancipation of the American negro. I wonder if he ever stopped to think that, in order that he might have the equal protection of the laws of this land, and others of his race, — I wonder if he ever stopped to read, and to think that, at the battle of Shiloh, 10,000 of brave men died, in order that this man might have the protection of the laws, and others of his race. Didn’t they give their lives? I wonder if he ever stopped to think, gentlemen, that, in the battle of the Wilderness, again 10,000 men were killed there. I wonder if he ever stopped to think that, on the field at Gettysburg, again thousands of men gave up their lives in order that the negro might have the protection of the laws, and thqt he might be emancipated. I wonder if he ever stopped to think that, as Abraham -Lincoln stood at Gettysburg, after the battle of Gettysburg had been fought, and delivered his Gettysburg address, that even then, according to Abraham Lincoln’s statement, it was in doubt whether or not a union of the people, by the people, and for the people, should not perish from the earth; and that they were fighting, those men, fighting and dying for the benefit of the colored people of this country. I wonder if he ever stopped to think that, at Cold Harbor, General Grant lost 10,000 men in twenty minutes. Think of it, gentlemen, 10,000 men in *1190twenty minutes were dying in battle of Cold Harbor, — and why ? In order that slavery should be put down, and in order that these people might have the equal protection of the laws. * * * The state has furnished him with counsel and with any witness and every witness that they desired here. I wonder if he is not guilty of base ingratitude to the country in which he lives. * * * Gentlemen, I want to say to you that, whenever a ‘Smokey Bow’ negro, as we sometimes speak of them, — whenever a ‘Smokey Bow’ negro gets into some trouble, or it may be a crap game, or-it may be something that is a violation of the law, a great many times, gentlemen, I am frank to say that I feel sorry for them, because, in a great many instances, he has not had good home surroundings, and because, in a great many instances, he is absolutely ignorant, you might say, of what is right and what is wrong. A man of that kind, a negro of that kind; is entitled to some consideration; but I say that the defendant that we have in this case, who deliberately and premeditatedly shot down a couple of defenseless women, and that man is educated to the extent that he has graduated from the public schools of the state of Missouri, and has been a year in college, 'and he knows the history of this country, and who knows what has been done for him, I say that he is a dangerous man. * * * I say that that kind of a man, white or- black, — it don’t make any difference whether he is white or black, — I say, gentlemen, that, when that man has stepped further, and in addition, — and I say that that kind of a man is a menace to society. I say that, when that man has stepped further, and in addition to.carrying that gun, in violation of law, that he shoots down a couple of’ defenseless women, I say, gentlemen, that man is a menace to society, and that he should be taken from society, just the same as you would stamp your foot upon a rattlesnake, — upon the head of a rattlesnáke. * *'* What consideration is he entitled to? Gentlemen, I don’t care what consideration. He has been given every consideration that should be given a man. The fact of the matter is that he has been given too much consideration. That is the truth of the matter. I am not saying anything against the colored race, as a race. In a great many respects, it is a remarkable advancement they *1191have made during the last 60 or 80 years. It is a remarkable thing, I say, that the majority of the colored race don’t approve of anything of this kind. They are, to a great extent, a peaceable and a law-abiding people, — set of people. They are, to a great extent, good people. I do not say for a minute that this man is a representative type of the colored race.' I say he is not. And I say this to you, gentlemen, that the quicker that the colored race is rid of the men of the type of the defendant, Burris, and the quicker they are gotten rid of, then that much quicker will be the benefit to the colored race. * * * Did you ever stop to think that there is very few colored men on the jury, and none on this jury? Did you ever stop to think that the white race, being the predominating race, that we have to enforce the laws for the colored race? That is, in the main, and to a great extent. Now, then, it is up to us, and it is up to the white people of this community, and it is up to this jury here, to uphold the standard of the colored race. They are looking to us not to turn a criminal loose on society, but to administer justice in this case. * * * He knew, according to his own evidence in this case, and according to all the evidence in this case, that he was living over there at home and eating three meals a day’over there in a house, according to his own evidence, that belonged to his mother-in-law. And he was operating a ear, according to his own evidence, that belonged to his mother-in-law; and yet, you might say that the uncontradieted evidence in this case shows that he wasn’t even supporting his wife and his three children. Now, there is the type of a fellow. What right did he have? * * * This fellow was a murderer at heart. He didn’t care what he had done. The evidence in this case shows that he never, at any time, as far as we know, ever expressed any repentance. He had never yet at any time showed any trace of repentance or remorse for his act. * * * There wasn’t any chance for him to escape, and he knew it. And not only that, but he probably feared and knew, deep down in his heart, that he ought to be mobbed, and probably felt this way about' it: that there might be some danger of a mob form; but he looked after his own protection. What did he do? He calmly and deliberately drove up to the Wapello County jail, then, in order *1192to save his own hide, and asked to be locked up. * * * It was nothing less than cold-blooded, deliberate murder. If you believe Charlie Dutton, and you believe John Bright, it was nothing more or less than a cold-blooded murder that this man committed; and he, even after he had committed this murder, went and got himself locked up in jail, so that nobody could get hold of him. That is what he did. It shows how coldblooded and deliberate the fellow was. * * * I say that that girl is all right, and believe her, in preference to a cold-blooded murderer like Archie Burris. * * * Now, the evidence in this case shows that Archie Burris wasn’t contemplating suicide. The evidence shows that he thought too much of his black hide, when he came up after committing this murder and asked to be locked up. He thought too much of his own hide to ever undertake to commit suicide. * * *
"Appellant’s counsel: I object to counsel commenting on the fact that, in his opinion, it is not sufficient punishment to send a man to penal institutions for life, because that is a penalty which is provided by our law. I do not believe it is a subject of comment by counsel.
"The court: Objection overruled. (Exception.)
"Appellant’s counsel: I object to counsel arguing along this line, as to the number of murders committed in this country, and what punishment should be set up, as not applicable to the case.
‘ ‘ The court: Objection overruled.
"Appellant’s counsel: I object to counsel commenting on the fact that this defendant has not entered a plea of guilty, but has taken a trial, as he is entitled to, under the law. I do not believe it is proper argument.
"The court: Objection overruled. * * *
"You can’t tell me, gentlemen, that there is any wrong, — • that there is any. reason why a jury of twelve men, who have found a defendant guilty of murder in the first degree, should let any religious or conscientious scruples interfere with the performance of their duty. I want to tell you that that wife and those three children and those three children are better off without Archie Burris than they are with him. The evidence *1193shows that he passed up his chance to support that wife and to support those three children. He has let that chance pass by. * * * He has let' the time pass by for mercy and for leniency. I say, in the interest of the colored race here in the city of Ottumwa, in order to protect them, and in order to protect the balance of the people here in this city, what right has a man of this kind to live? * * *”
The majority, if I read the opinion correctly, excuse this argument on two grounds: (1) That it was nonprejudicial; and (2) that it is presumed to have been in reply -to the argument for the defendant, and therefore proper. To neither of these propositions can I subscribe. This was the closing argument in a case where a man was on trial for his life, and where the jury was vested with the exceptional and extraordinary power of determining the penalty to be imposed. ■ No reply was available to defendant. I can conceive of no more important situation, calling for calmness and deliberate and unimpassioned judgment, than a situation where one is about to vote on the question of depriving a fellow citizen of his life. If inflammatory, passionate, and prejudicial appeals are out of place in any legal proceeding, it should be in such a case. Heretofore, in cases where a fine might be imposed, or a jail penalty inflicted, or in civil cases, where nothing but money or property were involved, we have unhesitatingly and repeatedly held that arguments of this character constitute prejudicial misconduct, for which a new trial would be promptly granted. We now propose to depart from this- established and time-honored rule, and to hold, in a case where a human life is at stake, that conduct of this character does not constitute reversible error. I appeal briefly to the authorities.
In Hall v. Wolff, 61 Iowa 559, a suit upon a promissory note, counsel argued that the plaintiff was not the real party in interest, and that the animus of the case was the desire of the president of the bank to injure the intervener, and that plaintiff was only a cat’s paw to-lend the cloak of respectability to the case. We reversed the case for misconduct, even though no objections were made to the argument at the time of its delivery.
In Wheeler & W. Mfg. Co. v. Sterrett, 94 Iowa 158, a suit *1194on a promissory note, the attorney for the defendant argued that the plaintiff was a nonresident of the state, a wealthy corporation, and that defendant was poor, and that such a corporation should have its property confiscated, and that he was in favor of such a law. Plaintiff’s counsel had an opportunity to reply to the argument, but still Ave reversed the case.
Henry v. Sioux City & Pacific R. Co., 70 Iowa 233, involved a suit for personal injury. In argument, it was insinuated that the corporation which Avas being sued had procured an indictment against the plaintiff. We said:
“In cases of this magnitude, delicacy, and difficulty, courts should see to it, as far as possible, that the scales are held even, and that unwarranted charges or insinuations made before the jury should not, if insisted upon by the offending party against objection, be allowed to pass without rebuke.”
I might ask: Are there any cases of greater “magnitude, delicacy, and difficulty” than those involving human life'?
In Goldthorp v. Goldthorp, 106 Iowa 722, in the examination of a witness, the answer was given that the testatrix had a most remarkable mind for a woman of her age, and counsel for proponent remarked: “I agree Avith you. I have known her most of her life.” We reversed the case because of this misconduct.
In Sullivan v. Chicago, R. I. & P. R. Co., 119 Iowa 464, an action for personal injury against a railroad, in making the opening statement, counsel for plaintiff said:
“I shall not attempt to state to you the income of the Chicago, Rock Island & Pacific Railway Company, the defendant in this case, because it Avill not be in evidence, and it is not my purpose to make any statements to you here in this opening statement, with the exception of those that will be in evidence.”
The remark was objected to, the objection sustained, and the court said it Avas improper matter to even call to the attention of the jury. We said:
“Jurors, as a rule, do not come to the trial of causes Avith minds trained to a proper discrimination between what are and Avliat are not relevant matters; and, by reason of the lack of legal education and experience, they are oftentimes innocently, *1195and even unconsciously, controlled in their view of causes submitted to them by influences that would have no- place in the. consideration of one familiar with the ethics of the law, and accustomed to the work of legal decision. ’ ’ .
In White v. Chicago N. W. R. Co., 145 Iowa 408, where an appeal was made to the jury to return a large verdict because of the wealth of the defendant and the poverty of the plaintiff, it was held that this was reversible error.
In Almon v. Chicago & N. W. R. Co., 163 Iowa 449, the suit was for damages for the loss of goods. In the closing argument, counsel for the plaintiff used the following, language:
“I don’t know of any reason why Mr. Hise, the attorney, should be unfair, unless it is because of the fact that he is connected with a corporation worth millions of dollars and engaged in a lawsuit against and trying to beat a poor devil.”
We held that this constituted reversible error, and sustained the opinion by many authorities.
In Belcher v. Ballou, 124 Iowa 507, speaking by Mr. Justice Weaver, we said:
“The further statements to the jury concerning a scandal in no manner connected with the case on trial, and the declaration that plaintiff’s poverty and defendant’s wealth had prevented the production of testimony, are too manifestly improper to require any more than their simple statement.”
In Cuitanovich v. Bromberg, 169 Iowa 736, suit was brought to recover the purchase price of liquor alleged to have been sold. Questions were asked with regard to defendant’s becoming rich by the taking of orders for other beer and whisky, and misconduct in argument to the same effect was urged. This court, speaking by Mr. Justice Preston, said:
“We think these two exceptions must be sustained. We had always supposed that litigants were entitled to a trial of their cases on the merits, regardless of the question as to whether they are rich or poor.”
I might prolong the citations to great length. Heretofore we have spoken on this subject to but one effect in such cases. Let us examine a few of the criminal cases.
In State v. Williams, 122 Iowa 115, counsel for the State *1196commented on the fact that the defendant had not shown good character, and that this was sufficient evidence of bad character, and referred to one matter of which there was no sufficient evidence. The argument was held to be “evidently very prejudicial, ’ ’ and the case was reversed.
In State v. Roscum, 119 Iowa 330, the defendant was on trial for malicious mischief in pulling up some peach and apple trees. Improper questions were asked respecting a similar charge, to which objections were sustained. "We said:
“Indeed, the purpose to get before the jury by indirection the fact that appellant was charged with other depredations, and thereby put him to a disadvantage in the pending trial, is too clear to admit of doubt. If convictions cannot be otherwise secured, it is far better to permit the guilty to go unpunished than to resort to expedients which are essentially unfair, and. destructive of the settled rules of evidence. ’ ’
In State v. Fuller, 142 Iowa 598, the defendant was charged with wife desertion. In argument, counsel for the State said:
“Plow many men are there whom you know, and whom I know, that, instead of going to a literary society and pulling John Fuller out by his coat collar, would have gone and brought him out either with a club or a gun. ’ ’
Objection to this argument was sustained, and a special instruction given in regard thereto. Notwithstanding this, we held that it constituted reversible error.
State v. Harmann, 135 Iowa 167, was a -trial for adultery, and the county attorney stated to the jury:
“Instead of trying a case of adultery here, gentlemen of the jury, you should be here for the purpose of determining whether or not Jacob Keifer was guilty of murder if he had exercised his ■ manhood, and taken a gun or pistol and shot through the heart of-Dr. Harmann.”
Speaking by Mr. Justice Deemer, we -said':
“There is enough-of a disposition for unthinking and unreasoning persons to take the law into their own hands without having it encouraged by ministers' of the law: It was the duty of the attorney who made this statement to discourage the very thing which he was countenancing, and there was no other rea*1197son for making the statement than to inflame the passions and induce the jury to right a supposed wrong which a party had neglected to perform on his own behalf.”
In State v. Giudice, 170 Iowa 731, the reference in argument to the fact that the defendant had procured a change of venue of the trial was held to be misconduct, and argument assailing the accused by insinuation not within the evidence was held to constitute reversible error.
In State v. Proctor, 86 Iowa 698, the defendant was charged with the crime of seduction, and the attorney for the State argued to the jury that the prosecutrix should have sent a bullet through the defendant. We said:
“The remarks we have quoted and others of a similar character were not only objectionable, but they were of a nature to work great prejudice to the defendant. This is especially true for the reason that they were made by a representative of the State, who had expressed a just estimate of his duties, and a desire to avoid convicting the defendant unless his guilt had been proven; and for the further reason that the attorney for the defendant had no opportunity to respond to them. ’ ’
In State v. Clouser, 72 Iowa 302, in a trial for murder, the attorney for the State, in argument, referred to the fact that the defendant had been tried twice by a jury of twelve men, and found guilty. We said:
“Every man accused of a public offense has the right to have the independent and deliberate judgment of his triers pronounced upon the evidence adduced upon his trial.”
In State v. Peirce, 178 Iowa 417, where a chief of police was charged with conspiracy to protect law breakers, the county attorney enlarged upon the prevalence -of all kinds of infamous crimes in the community, and the miscarriage of justice in the trial of a criminal case the .year previous, and said:
“Can there be any question possible, gentlemen, of the guilt of this man of every one -of these charges — how many thousands more, nobody knows.”
Wé held that such conduct was highly prejudicial and inflammatory, and required reversal, citing many authorities to sustain it.
*1198In State v. Weaver, 182 Iowa 921, the defendant ivas indicted for the crime of lewd, immoral, and lascivious acts. Questions were asked of witnesses, tending to show that the defendant had been guilty of similar misconduct with them. We said, by Mr. Justice Stevens:
‘ ‘ The duty of the prosecuting attorney is not alone to secure a conviction of the guilty, whenever possible, but also to safeguard the rights of the accused, by closely observing the rules of evidence and prescribed procedure. While the questions were propounded with the permission of the court, upon the theory that the State should have an opportunity to make a proper record for appeal, still, on account of the character of the offense which it was claimed had been committed against the witness, and suggested by the line of questioning indicated, coupled with the fact that same was clearly inadmissible, we think same was rendered highly prejudicial to the rights of the defendant, and that it was misconduct on the part of the prosecutor to call the witness and pursue the line of questioning indicated.”
In the recent case of State v. Boyd, 195 Iowa 1091, the misconduct had no reference whatever to the accused, but consisted of criticism of his attorney, who was a nonresident of the county. Speaking by Mr. Justice Arthur, we then said:
"But, upon reflection, we fear that the virulent attack by the county attorney, made before a jury of his own people, against a nonresident attorney, may have prejudiced the jury against appellant.”
The attack upon the attorney in the Boyd case, which we held to be misconduct, is modest and dispassionate in comparison -with the denunciation of the defendant on trial in t.he instant case; and yet we reversed..
In State v. Robinson, 170 Iowa 267, the county attorney in argument declared, among other things, that:
"If it had been my daughter instead of Bena Bunge, this man would not be on trial here, but Simon Fisher would be on trial. ’ ’
The late Justice Gaynor, with the clarity and courage that characterized his opinions, said:
"One elected to the office of county attorney, to represent *1199the people in the prosecution of criminals, occupies a close relationship to the administration of the law and to the court, and should have no ambition beyond that laudable one to see that no guilty party escapes. But it is not for him to assume, as prosecutor, the guilt of the defendant at any stage of the proceedings. The defendant is presumed to be innocent until'by the evidence he is shown to be guilty. The jury are empaneled and sworn to determine this question. Their judgment should be unbiased, unprejudiced, uninfluenced by any consideration other than the evidence submitted to them and the law given to them by the court. Appeals to the passion, prejudice, or to the jury to stand up like men and show their disapproval of the crime charged, by convicting the defendant, are unauthorized and unjustified. Jurors are but human, and respond humanly to those appeals. Called into the arena by counsel to condemn crime abstractly, and to show their manhood or lack of manhood in this manner, they are led into the trap that requires them to condemn the defendant, to vindicate themselves. This is not the spirit of our law. . This is not the purpose for which arguments to the jury are permitted. This is subversive of a fair administration of public justice. It is against the law and good morals. ’ ’
In the case at bar, the argument was far more prejudicial than in the Robinson ease. I think it was ‘1 subversive of a fair administration of public justice. ’ ’ It was ‘£ against the law and good morals.”
The cases might be multiplied almost without limit, on the proposition that misconduct of the very kind that occurred in the case at bar is prejudicial, and requires a reversal of the case, regardless of this court’s opinion as to the guilt or innocence of the defendant. Many of them are cited in the former decisions of this court, to which I have referred. The foregoing cases illustrate that heretofore this court has not hesitated to grant a new trial for misconduct of the character complained of, in a great variety of cases, both civil and criminal. Every argument of reason and justice' supports the contention that, in a ease of murder in the first degree, above all others, the trial should be conducted in substantial compliance with the established rules of law.
*1200In a case involving a few paltry dollars, we reverse if there is argument referring to a defendant corporation as being “wealthy.” In a seduction case, we reverse if there is an intimation that the aggrieved person should have avenged the wrong. In a suit over the price of intoxicating liquors, we reverse for a mere suggestion that the party had grown rich selling beer and whisky. In a suit against a railroad company, we reverse for misconduct in referring to the income of the defendant. And so on, for more than seventy-five years of Iowa jurisprudence, we have, time and time again, consistently declared that misconduct of this kind was a denial of a fair and impartial trial. These decisions are right. We should not depart from them.
But now, in a case where a man is on trial for his life, the majority are sanctioning a line of inquiry to create in the minds of the jury a prejudice against the defendant because, being a colored man, he was on intimate terms with another man’s wife, who was a white woman, where such fact, if it be true, did not have the least relevancy to the case on trial. The majority are holding that it was proper to discuss this matter in argument in the highly prejudicial and inflammatory manner shown in the record. The-majority are saying that it was not improper for an attorney, in closing argument in such a case, to deliver a long discourse about the blood that had been shed in behalf of the colored race, and then denounce the defendant as being “absolutely incapable of gratitude.” The majority are holding that in such a case it was legitimate argument to say to the jury that the defendant “wasn’t even supporting his wife and his three children. Now, there is the type of fellow. What right did he have?”
But we reverse if a corporation is referred to as being “wealthy” or “soulless.”
In the only case under our law where the jury is to fix the penalty, the majority say it was “nonprejudicial” to argue to the jury that the defendant “probably feared and knew deep down in his heart that he ought to be mobbed. * * * After he had committed this murder, he went and got himself locked up in jail, so that nobody could get hold of him. * # * The evidence *1201shows that he thought too much of his black hide, when he came up after committing this murder and asked to be locked up.” But we reverse for a suggestion that the father of a seduced girl should have avenged the wrong. Why the distinction?
The majority declare it to be nonpréjudicial and perfectly proper to tell a jury that a defendant “should be taken from spciety just the same as you would stamp your foot upon a rattlesnake, — upon the head of a rattlesnake; ’ ’ but if a man is on trial for malicious mischief in digging up trees, we reverse because the State offered to prove that a witness lost several geese, and afterwards “saw geese exactly like them” on the farm of the defendant. I fail to recognize consistency in the two positions. »
The majority hold in this case that it was_ proper to argue that a defendant had not entered a plea of guilty, but had stood trial. Yet we have heretofore reversed for reference to the fact that a defendant had procured a change of venue.
What shall be the rule in the future? Who may know?
Our former decisions on this question are correct and consistent. We should not depart from them now. I perceive no exigency that warrants such a heroic procedure.
The discussion might be continued, but I forego. The argument was highly improper, inflammatory, passionate, and prejudicial. It was a deliberate presentation of matters wholly extraneous, for no other purpose than to prejudice the defendant in the eyes of the jury. It was a persistent appeal to passion and prejudice. It was a flagrant denial of a “fair and impartial trial.” It was “subversive of a fair administration of public justice;” it was “against law and good morals.”
III. There is another proposition announced by the majority in which I cannot concur. The majority lay down the rule that, where a prosecutor is guilty of misconduct in closing argument to the jury, it is to be presumed, without any showing to the contrary, that the argument so made was a proper reply to the argument of counsel for the defendant. I do not believe such to be the correct rule. I cannot subscribe to the pronouncement that “it is presumed, nothing appearing to the contrary, *1202that argument by the prosecutor was a legitimate response to argument for the defendant.”
The majority say that they have no doubt that his (defendant’s) counsel made the most of the fact that he (defendant) was a colored man and that lie and his race had been at a disadvantage in the past. I cannot follow my associates in the line of reasoning' that we are to indulge in the conjecture that counsel for the defendant made the most of the circumstances (in regard to a mob) in his argument to the jury.
1 am aware of the fact that, in some of our previous decisions, there have been intimations of such a rule as is now announced. 1 think they are erroneous, and should be overruled on this question.* The pronouncement in the instant case is contrary to the .universal and generally recognized rule of the courts of this country. No authorities are cited by the majority t.o sustain any such a rule, except some of our previous decisions in which there is similar dictum. If any other court has adopted such an extraordinary rule, our attention has not been called to the decision. The Indiana case cited by the majority is not in point.
As I understand the true rule, prejudice is presumed from misconduct in argument, but such misconduct may be excused by a showing that it is a legitimate reply to argument by opposing counsel; and unless such showing is made, the misconduct is not excused. The majority opinion reverses completely this salutary and well established rule of practice. I observe no good reason why this should be done.
Under the rule now announced, a prosecutoi may be guilty of the most flagrant misconduct in closing argument, and “it will be presumed” to be response to argument by defendant’s counsel. The majority would place upon the defendant, under such a situation, the burden of showing that his counsel had not been guilty of misconduct in argument to which the prosecutor’s argument was a legitimate response. In other words, we start out with the “presumption” that defendant’s counsel has, in effect, been guilty of misconduct.
Contrary to the universal rule, the majority would place upon the defendant in a criminal case the burden of showing *1203that a prejudicial closing' argument by the prosecutor was not in reply to argument by defendant’s counsel. I do not think any such burden rests upon a defendant in such a case. My understanding of the law is that, when an improper, impassioned, and inflammatory argument is indulged in by the prosecutor, as in this case, the law presumes that prejudice follows therefrom, and if such argument is to be excused, the burden rests upon the prosecution to excuse it. The rule of the majority is simply this: That a flagrant, inflammatory, and prejudicial closing argument in a criminal case will be “presumed” to be in response to argument of counsel for the defendant, unless the defendant establishes- that it was not in response to such argument. I cannot and will not subscribe to any such rule. I think it to be fundamentally and radically wrong, and directly contrary to the correct rule, recognized by every court where the question has arisen.
In this case there is not a hint or suggestion in the record that defendant’s counsel indulged in anything in argument to which the improper argument of the special prosecutor was a response. The “presumption” to that effect is quite gratuitous. If the argument of counsel for the State ivas in reply to argument of counsel for the defendant, or was invited by him, it would have been a very simple matter to have established that fact by affidavits of jurors, bystanders, or counsel for the State, in resistance to a motion for a new trial. Not a hint of the kind appears in the record in this case. No such suggestion is claimed by the State in argument. Without any record whatever to warrant euch an assumption, without any claim ■ or argument to support it, the majority indulge in the “presumption” that the counsel for *he defendant “in all probability” said something in his argument which justified the misconduct of counsel for the State- in reply. I am not prepared to excuse prejudicial misconduct in a closing argument to the jury upon any such unwarranted assumption by the court as this. To lay down and adhere to any such rule makes it possible for the attorney for the prosecution to be guilty of the most flagrant misconduct in closing argument, even though the attorney for the defendant has in no way invited any such reply. To excuse proved misconduct by *1204a “presumption” that it was justifiable because of assumed and wholly unproved misconduct on the part of opposing counsel in argument, is a judicial invitation to prosecutors to trespass with impunity upon the rights of a defendant, and to seek by inflammatory appeals to wrest verdicts from a jury that are not the result of deliberate judgment. It is a generally recognized rule that one presumption cannot rest upon another presumption. Why should we abandon such a rule to fit the exigencies of any particular case or class of cases? Or why judicially presume transgression by defendant’s counsel, in order to excuse misconduct by a special prosecutor ?
Were I put to it, I could not “presume” any kind of an argument counsel for defendant could have indulged in, to which the argument in question would have been a legitimate reply. Are we to “presume” that defendant’s counsel argued that the defendant should not be killed “as you would stamp on the head of a rattlesnake;” that he ought not “to be mobbed;” that he was not consorting with a white woman who was another man’s wife; that he did “support his wife and children?”
Outside of the Iowa cases to which I have referred, the majority opinion cites and makes a partial quotation from State v. Reed, 141 Ind. 116 (40 N. E. 525), as sustaining the rule contended for. I do not so read the authority. In that case, appellant (the defendant) was a witness in his own behalf. The court instructed the jury in regard to certain matters testified to by appellant. Complaint was made of the instruction in regard to such evidence. The court said:
“It is not disclosed by the record that the statements of 'appellant to the jury were not referred to, or made use of, by his counsel in their argument in his behalf, and, as we are bound to indulge all reasonable presumptions in support of the' action of the trial court, we must presume that counsel did exercise this right, and in that event it would have been’proper for the court’ to have correctly advised the jury,- under-'the evidence, upon the law relative to the points made by them- in their argument. ’ ’
I fail to see that the-cited ease bears any relevancy to the question in the case at bar. The rule as applicable to such a *1205situation as we have before us is stated in Lowdon v. United States, 149 Fed. 673, as follows:
“But, under the circumstances of this case, considering the character of the argument, the refusal of the trial judge to interfere at the time the objection was interposed, or to correct the probable effect of the argument by a subsequent instruction, and because it does not appear affirmatively to us that no injury was done to the defendants, we are constrained to hold that the judgment should be reversed, and a new trial granted to both defendants.” (Italics are mine.)
That the objections in the instant case were sufficient to warrant a review of all of the statements complained of was held by us in the recent case of State v. Boyd, supra. See, also, State v. Peirce, 178 Iowa 417.
I do not eare to discuss the opinion of the majority that the argument of the prosecutor “taken as a whole is not inflammatory and is not prejudicial.” It speaks for itself. The analysis thereof in the majority opinion, in an endeavor to excuse the appeal to the jury to hang the defendant “just the same as you would stamp your foot upon a rattlesnake, — upon the head of a rattlesnake, ’ ’ and other like portions of the argument, only serves to accentuate its prejudicial character. It was “against the law and good morals. ’ ’
The holding of the majority is destructive of the ancient landmarks that have stood for so many years, by which rich and poor, high and low, black and white, have been entitled to a fair and impartial determination of their rights in the courts of this state. I cannot but feel that human rights should be held to be as sacred as property rights, and that, at least in the only instance known to our law where the jury fixes the penalty and is empowered to deprive a defendant of his life, the courts should unhesitatingly see to it that a jury, in so acting, is not influenced by insinuations and suggestions against-a-defendant entirely outside of legitimate evidence, or-by inflaihlhatory and impassioned appeals of the character used to incite a mob. Our criminal laws should not be enforced in any such manner, nor will trials so conducted contribute to a respect for the courts as fair and impartial administrators of justice, among a thoughtful and law-*1206abiding citizenry. , The majority would overrule a well established and salutary rule, to which I am abidingly confident the court will return in due1 time. I am firmly of the opinion that the case should be 'reversed, and a new trial ordered, in accordance with the law as repeatedly laid down by this court and many others in both civil and criminal cases where this question was involved..