(dissenting). I agree with the majority opinion to the effect that there was sufficient evidence in the record to support a conviction. I also concur with what is said as to the severity of the sentence imposed upon the defendant below by the trial court, who permitted the conduct by the district attorney, upon which comment is hereinafter made.
I cannot agree, however, that a conviction should stand which follows the methods here used by the district attorney even though permitted by the trial judge.
The district attorney produced three witnesses to testify as to an alleged admission made by defendant’s witness Janske. His own testimony, therefore, was purely cumulative and I think a clear and palpable evasion by him of canon 19 of the American Bar Association, quoted in the majority opinion, and I think the permission given by the trial court did not make it proper. The fact, if it be such, as is stated in the majority opinion, that “his testimony added nothing to and took nothing away from the record,” only emphasizes the view that his testimony was not “essential to the ends of justice.”
The oath required for admission to practice in this state provides, sec. 256.29 (1), “I will abstain from all offensive personality and advance no fact prejudicial to the honor or *189reputation of a party or witness, unless required by the justice of the cause with which I am charged.”
The district attorney repeatedly and persistently brought to the attention of the 'jury that the defendant had been guilty of another sexual transgression, as was self-evident by comparing the date of his marriage with the birth of his first child. As part of the State’s case the district attorney called the defendant’s divorced wife as a State witness, proved by her that their marriage was in 1924, and then, over objection, she was permitted to testify as to the number of children and the age of the first child, he not being content with her first answer that the child was three years old. He was persistent in obtaining the dates of the birth of the first and second child and of the divorce. He then elicited from this witness, still over objection, the age and birth date of defendant. Defendant’s motion to strike out all that testimony was denied. There was no cross-examination of this witness. The district attorney then produced and offered in evidence the certificate of marriage between these two, referring particularly to the part disclosing the age of defendant. This certificate was admitted, and thereupon it became a matter, of record that the marriage was on November 26, 1924. By this indirect method, therefore, the district attorney brought in as part of the State’s case the fact of defendant’s marriage in November being followed by the birth of a child in February. If the marriage certificate, then in the possession of the district attorney, was proper and competent to prove defendant’s age or the fact of the marriage, then the former wife was an unnecessary witness. • In any event the date of the birth of the first child was utterly and absolutely immaterial; could have been dragged in only for an ulterior purpose and to scandalize and prejudice defendant. The defendant’s age was the only material fact necessary to be proven, and the certificate offered would have been sufficient for that. The defendant *190on his own behalf, after all such evidence had been admitted, was asked by his counsel as to his marriage and divorce, and then on cross-examination the district attorney again brought out, over repeated objections, the dates of the marriage and of the births. Over objection he was allowed to cross-examine the defendant as to the grounds for the divorce and that he interposed no defense in that action.
The district attorney’s argument to the jury was made a matter of record. During that argument he referred to the divorce of four months prior to the day of the assault and that defendant was “the father of two children.” Again, in closing he speaks of the defendant as the father of two children; married on November 26, 1924, one child born February 8, 1925, and the other August 31, 1926.
That all this was a plain, flagrant, inexcusable, and unwarranted violation of professional ethics seems beyond question, and his sole justification in his brief here seems to be his claim that it was a proper method of testing defendant’s credibility and of displaying the district attorney’s vigor!
That a lawyer is an officer of the court, and when functioning as district attorney has the additional qualification of being a quad-judicial officer, has become trite in this state (State v. Peterson, 195 Wis. 351, 359, 218 N. W. 367), where it was held»that the participation of an attorney paid by private parties to assist the district attorney in the trial of a criminal case was sufficient to set aside the conviction (p. 358), and particularly O’Neil v. State, 189 Wis. 259, 207 N. W. 280, wherein the former decisions are reviewed and a conviction set aside because of the improper remarks of the district attorney. See, also, In re Law Examination, 191 Wis. 359, 361, 210 N. W. 710; Lawver v. Lynch, 191 Wis. 99, 102, 210 N. W. 410; Zeidler v. State, 189 Wis. 44, 48, 206 N. W. 872, where this court deplored *191the practice of the district attorney offering himself as a witness, as in this case, while in active charge of the prosecution, and citing Roys v. First Nat. Bank, 183 Wis. 10, 30, 197 N. W. 237, where the testifying by an attorney in a civil case was condemned as a violation of the same canon of ethics. See, also, Hepp v. Petrie: Appeal of Meissner, 185 Wis. 350, 355, 200 N. W. 857.
The duty of the district attorney as such quasi-judicial officer to see to it that a conviction shall only be had in accordance with law was emphasized in Bianchi v. State, 169 Wis. 75, 95, 171 N. W. 639. The necessity that such an officer should be free from any personal interest that might arise from being connected with possible civil litigation involving the same situation was emphasized in Coon v. Metzler, 161 Wis. 328, 334, 154 N. W. 377. These later cases are but carrying out what was always recognized as proper public policy in such cases as Sasse v. State, 68 Wis. 530, 533, 32 N. W. 849; State v. Russell, 83 Wis. 330, 334, 53 N. W. 441. In Lukas v. State, 194 Wis. 387, 390, 216 N. W. 483, the testimony given by the district attorney was there held admissible because he refrained entirely from participating in the trial, which was conducted by an assistant district attorney. In Corti v. Cooney, 191 Wis. 464, 471, 211 N. W. 274, the clause of the oath as quoted above was quoted at page 471, and for a similar violation by plaintiff’s counsel, but in the trial of a civil suit, the judgment was reversed and, as stated (p. 472), “a reprimand to the attorney does not cure the wrong done to litigants.” If such was proper ruling in a civil case, much more should it be in a criminal case, and I think we should do here what was done in O'Neil v. State, supra, p. 264, viz.: see to it that the administration of the criminal law shall not be brought into disrepute. I see no good reason, statutory or otherwise, why the State itself, whose voice it is that proclaims these *192rules for the conduct of the officers of its courts, shall be a preferred litigant over an individual, and be permitted to alone reap the advantages of such violations of professional ethics.
I am authorized to' state that Mr. Justice Crownhart joins in this dissent.