(dissenting)'.
While counsel have the right to draw from the evidence received in a case, or from the failure to produce evidence shown to be in the possession of the opposite party; any conclusion which to them may seem fit, they “have no right to draw from such evidence or suppression of evidence an incorrect conclusion of lavs." Article 382 of the Louisiana Code of Criminal Procedure, now R.S. 15 :382. I cannot, therefore, agree with the ruling of the trial judge that the district attorney’s statement in his closing argument to the jury that “an intent to make” a “witness lose his temper,” is “the element of intent to influence the conduct of a witness” within the meaning and contemplation of Article 118 of the Louisiana *825Criminal Code (now R.S. 14:11s),1 defining the crime of Public Bribery, or the holding of the majority that such ruling was not prejudicial to the cause of the accused. (The emphasis has been supplied.)
A mere reading of this article will readily disclose the gravamen of the offense of public bribery, in so far as pertinent here, is the giving or offering to give something of value or apparent value to a witness or person about to be called as a witness with the intent to corrupt such person, that is, the giving or the offer to give must be “zmth the intent to influence his conduct in relation to his position, employment, or duty.” (The emphasis has been supplied.)
Whether the accused in this case, in making the statement to Lieutenant Kordelc of the state police, who had been subpoenaed as a witness in a case pending against the defendant, that is attributed to him, intended thereby to corrupt Kordelc in the performance of his duty, or only to anger him, was a question of fact for the jury to decide, and the accused was entitled to have the jury charged accordingly. Consequently, when the trial judge, in the presence of the jury, denied defense objection to the prosecutor’s statement as being an incorrect statement of the law, and refused to instruct the jury correctly, but, instead, clearly and unequivocally agreed with the statement of the law made by the prosecutor, he placed his stamp of approval thereon, thereby precluding the jury from considering Viator’sonly defense, that is, that he lacked any intent to influence or corrupt Kordelc by engaging him in conversation, not only in open-court but also in the presence of other police officers and persons, and intended, instead,, to anger or “needle” the officer, as my learned colleague puts it in his dissent, as he entertained only hatred and contempt for this officer. Clearly, if the jury believed defendant’s explanation of the incident, he-was not guilty of the offense charged. Hence, I cannot conceive of a more prejudicial error to the cause of the defendant than the ruling of the trial judge that forms-the basis of the first two Bills of Exceptions. Under these circumstances, I cannot agree with the statement in the majority opinion *827-that we can assume "the judge in his general charge has instructed the jury as to the correct law of the case,” and the defendant therefore has no cause to complain, for the trial judge unquestionably entertained a different view of the law, as he had stated most emphatically when he ruled against defense counsel at the time the objection was made to the prosecutor’s appreciation of the law, and also in his per curiams to these bills, for the judge not only there reaffirmed his ruling that the district attorney’s statement of the law as given was correct, but also vigorously sought to defend and support that conclusion.
I must, therefore, respectfully dissent.
. Article 118 provides that “Public Bribery is the giving or offering to give, directly or indirectly, anything of apparent present or prosx>eetive value to any of the following persons, with the intent to in- ' fluence his conduct in relation to his position, employment, or duty: (1) Public officer or public employee; or (2) Election official at any general, primary, or special election; or (3) Grand or petit juror; or (4) Witness, or person about to be called as a witness, upon a trial or otlier proceeding before any court, board, or officer authorized to hear evidence or to take testimony.
“The acceptance of, or the offer to accept, directly or indirectly, anything of apparent present or prospective value, under such circumstances, by any of the above named persons, shall also constitute public bribery.