I concur in the affirmance of the judgment.
Ordinarily, in view of the conclusive character of the evidence which establishes defendant’s guilt, I should concur without comment. In this case, however, in Mew of the numerous assignments of error relating to alleged errors of the prosecuting attorney in propounding improper questions on cross-examination of the defendant, in asking other numerous improper questions of the state’s witnesses, and in refusing the defendant the right to explain certain alleged admissions that the prosecutor contended defendant had made, including certain statements that he had made to his counsel with respect to his defense and the ruling's of the court on these matters, I deem it my duty to say something concerning them.
Were it not for the fact that, in my judgment, defendant’s own statements, in connection with the circumstances, are *412conclusive of his guilt, and that the matters before referred to could not, in reason, have affected the minds of the jury in arriving at their verdict, I should concur in the affirmance of this judgment with some reluctance. The record in this case affords a striking illustration of how a prosecuting attorney, by becoming overzealous, may compel a reviewing court .to reverse a judgment for errors that might and should have been avoided, where the evidence is otherwise sufficient to sustain the judgment. In this case, for instance, the prosecut- ' ing attorney insisted on requiring the defendant to disclose what communications he had made to his counsel respecting the alleged defense of insanity. This was a clear invasion of defendant’s guaranteed constitutional privilege. Nevertheless, the district court sustained the contention of the prosecutor. Fortunately, however, the defendant was not prejudiced by the incident. Under different circumstances, however, he easily might have been, and we then would be compelled to reverse the judgment.
Again, defendant was compelled to state whether he had or had not made certain statements to a police officer while the defendant was in the latter’s custody and which the prosecutor constnied to be an admission of guilt, which, however, the defendant insisted was not such if explained, and he offered to make the explanation in connection with the statement asked by the prosecutor. The prosecuting attorney, however, refused to permit the explanation as offered by the defendant, and in that was again sustained by the court. While it is true that, ordinarily, when a statement is imputed to a witness on cross-examination and he admits the statement, an explanation may be deferred until the redirect examination is reached, yet when, as here, a statement which the prosecutor contends is in the nature of a confession of guilt, and which the defendant insists does not admit 'of that construction, if properly understood and applied to the surrounding circumstances, and he asks that he be permitted to make an explanation in connection with the statement, he should always be permitted to do so. If such is not permitted, the jury may not fully understand and appreciate the ex*413planation later made, and may construe the statement as an admission of guilt, while it may not be such at all. In this case, however, while I am clearly of the opinion that the court erred in sustaining the prosecutor’s contention and in refusing to permit defendant to make the explanation in connection with the statement, the circumstances were again such that the defendant suffered no prejudice. Under different circumstances, however, prejudice might easily have resulted.
There are a number of other similar matters in this record, and I speak of them, and all of them, here only because I hope to avoid such occurrences in the future. Both court and prosecutor should remember that, when an accused testifies in his own behalf when he is on trial for his life, his nervous condition and state of mind are not always equal to the occasion, and in view of that the prosecutor necessarily has a great advantage over him. The latter, therefore, as well as the court, should be exceedingly careful not to abuse that advantage to the prejudice of the accused. The purpose of the prosecutor should be to convict only in case the evidence establishes the guilt of the accused beyond a reasonable doubt, and every opportunity should be afforded him to explain every inculpating circumstance if he can do so. This is especially true in eases of circumstantial evidence. . The jury, which is ordinarily composed of intelligent men, will easily reconcile the evidence and give it its due weight and effect if properly guided by the court and their minds are not unduly influenced by an overzealous prosecution.
While the irregularities in this case are numerous, and in my judgment unnecessarily so, yet, upon the whole record, I am convinced that fortunately the defendant suffered no prejudice from them and that the jury could not conscientiously have arrived at a different verdict. Hence I concur in the affirmance of the- judgment.