dissenting.
I concur in the admirable exposition of the majority opinion which shows there was no prejudicial error in the record from the beginning of the long trial below until the assistant prosecuting attorney made his argument to the jury, but I take radical exception to the reversal on the ground of his misconduct.
Without perversion of the truth and the law a conviction was inevitable. Setting aside the only just and proper verdict that could have been rendered under the evidence does not inflict punishment on the offending attorney who abused his privilege in addressing the jury but does visit his misconduct on the innocent public and does cast reflections on the administration of justice.
It is a strange anomaly of the law, as administered by the majority, that juries are permitted to determine from evidence the momentous issues of liberty and imprisonment and at the same time and in the same prosecution are not trusted to discriminate between mere argument containing intemperate and unwarranted language of a prosecuting attorney and truthful testimony of disinterested witnesses under oath.
Where the entire record of a criminal prosecution clearly shows that misconduct of the prosecuting attorney in addressing the jury did not mislead them in arriving at their verdict of guilty or prejudice accused, the reviewing court should treat such misconduct as harmless error as directed by the statute which declares:
“No judgment shall be set aside, or a new trial granted, or judgment rendered, in any criminal case on the grounds of misdirection of the jury, or the improper admission, or *609rejection of evidence, or for error as to any matter of pleading or procedure, if the supreme court, after an examination of the entire cause, shall consider that no substantial miscarriage of justice has actually occurred.” Comp. St. 1929, sec. 29-2308.
I made “an examination of the entire cause,” and I say with conviction there was no prejudicial error or miscarriage of justice in the proceedings and sentence. Under the evidence a verdict of not guilty would have been a travesty on justice and a reproach to the law.
Defendant, R. T. Cooper, was charged with forging the name of “Geo. Yana” on the back of each of three bank checks which were drawn by “Black Bros. Flour Mills Elevator, by R. T. Cooper,” in favor of “Geo. Vana,” on the “Farmers & Merchants Bank, DeWitt, Nebraska,” and were payable at the “First National Bank, Beatrice, Nebr.” The dates of the checks and the amounts were respectively as follows: October 22, 1928, $55.80; October 29, 1928, $55; November 15, 1928, $59.16. For a number of years, including those dates, defendant was an agent of Black Brothers and in that capacity managed for them an elevator at DeWitt. He had authority to buy grain for them there and to pay for it with their checks. The truth of the charges was proved beyond a reasonable doubt. Defendant testified in his own behalf and admitted that he drew the checks; that he indorsed Vana’s name on the back of each; that he banked the checks in his own name; that he received the proceeds. In explaining these remarkable transactions he testified in effect that Vana delivered three loads of wheat at the elevator and that each check represented the price of a load; that two of the loads were received in payment of feed or grain formerly purchased by Vana who received payment for the third load in cash from defendant personally; that defendant indorsed the name of Vana with the latter’s consent; that it was defendant’s custom, known to his employers, in these and other like transactions, to indorse on the back of the check the name of the payee; that he did so without any attempt to imitate the payee’s handwriting; that he *610settled with his employers Tor what he pwed them. Tested by business standards the defense was preposterous and from the standpoint of the law it was a device to defeat justice. Existence and knowledge of such a custom were disproved. Attempts to imitate handwriting in making indorsements were evidenced by comparison with genuine signatures. The loss fell on defendant’s employers and not on Vana who became a disinterested witness. He testified positively that he never bought or delivered grain at the De Witt elevator; that the checks did not represent the price of wheat sold or delivered by him and that they were not issued or used in any actual transactions with him; that he did not authorize the indorsement of his name on the checks. Moreover, -the De Witt elevator was approximately five miles from his farm, while he was served by another elevator near his home. To prove criminal intent several other disinterested witnesses, whose names had been likewise indorsed by defendant on checks, testified in substance that they did not authorize the indorsements and that the .checks were not connected with any actual transaction in which the fictitious payee and indorser participated.
In the light of evidence that proves guilt with unerring certainty, as it does in this case, why should jurors be suspected of resorting to obvious unfair argument in arriving at their verdict 1 The unwarranted statements reproduced in the majority opinion and the cruel remarks concerning the faithful wife who appeared in court on behalf of her husband in a time of peril reacted against the prosecution without harming the accused. Indignation that moved reviewing judges did not escape the jurors. The trial court not only treated the objectionable statements of counsel as argumentative matter, as shown by the rulings on objections, but the jury were instructed in writing that, in coming to any conclusion, they should be governed alone by the evidence in the light of the instructions; that they had no right to indulge in speculations, conjectures or inferences not warranted by the evidence. They were also directed to entirely disregard any remarks of counsel not warranted by the evidence. The misconduct condemned by the majority had nothing to do with the verdict.
*611Oh the record for review, “after an examination of the entire cause,” as required by statute, I “consider that no substantial miscarriage of justice has actually occurred.” The statutory rule was enacted in 1921 to prevent reversal of righteous convictions for harmless, technical errors. Laws 1921, ch. 157, sec. 1. In justifying the reversal by citing and following the old practice which the legislature changed, the majority, in my opinion, have impaired, if not destroyed, remedial legislation essential to , the safety of the law-abiding public in the present state of lawlessness. Entertaining these views, I solemnly protest against the adoption of the majority opinion and the reversal of the conviction in this case.