That evidence of such prior convictions could not be received unless such prior convictions were al*648leged in the information has been repeatedly determined by this court. Paetz v. State, 129 Wis. 174, 107 N. W. 1090; Howard v. State, 139 Wis. 529, 121 N. W. 133; Dahlgren v. State, 163 Wis. 141, 157 N. W. 531. That it was error for the district attorney, such facts not being set forth in the information, to make the statements which he did to the jury, is likewise well established. Buel v. State, 104 Wis. 132, 80 N. W. 78; Baker v. State, 120 Wis. 135, 97 N. W. 566; Paulson v. State, 118 Wis. 89, 94 N. W. 771. No attempt was made to amend the information and no effort was made to introduce evidence in support of the statements made by the district attorney.
“Section 3072m. No judgment shall be reversed or set aside or new trial granted in any action or proceeding, civil or criminal, on the ground of misdirection of the jury, or the improper admission of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure the new trial.”
Does it appear that the substantial rights of the defendants are affected by the error complained of ? The evidence upon which the defendants were found guilty was far from conclusive, and different juries might very well arrive at different results. As was said by this court in Paulson v. State, 118 Wis. 89, 99, 94 N. W. 771:
“In a doubtful case even the trained judicial mind can hardly exclude the fact of previous bad character or criminal tendency, and prevent its having effect to swerve such mind toward accepting conclusion of guilt. Much less can it be expected that jurors can escape such effect.” ,
Had the district attorney made any one of the statements complained of, objection thereto been promptly sustained, *649and. the jury then and there instructed to disregard such statement, it might he said that the substantial rights of the defendants were not affected. In this case, however, objection to the improper remarks was made promptly, and repeated as each statement was made, and the objection overruled by the court. The impression gained by the jury was permitted to remain with them for more than a day, and then the jury were instructed that the statements of the district attorney so far as they related to the defendants’ records should be disregarded. Upon this record we are of opinion that the substantial rights of the defendants were affected by the error complained of.
It does not appear from the record whether the facts stated by the district attorney were or were not susceptible of proof, and it may well be that the jury thought the evidence was excluded for some technical reason, and their deliberations must have been affected to some substantial extent by the improper statements. While the administration of our criminal law should not be embarrassed by a strict adherence to merely technical rules, yet each citizen is entitled to a fair trial. If the men were not ex-convicts as stated by the district attorney, there was no justification for the statements; if the statements were true, the procedure was clearly and plainly marked out. The facts must be alleged in the information, and if not so alleged when it is filed it may be .amended on leave of court. When the facts are set out in the information and admitted by the defendant, it is prejudicial to allow proof of them and comment thereon by the district attorney. Howard v. State, 139 Wis. 529, 121 N. W. 133.
Other errors complained of are not likely to he repeated upon a second trial, and we shall not further notice them here.
By the Court. — Judgment reversed, and cause remanded for a new trial. The warden of the state prison will deliver *650the plaintiffs in error into the custody of the sheriff of Dane comity, who will hold them in custody to await the further order of the court.