dissenting.
I concur in the conclusion of the majority that venue having been properly laid in Multnomah County in the *379first trial of defendant, that court continues to have jurisdiction of the cause on remand until a final judgment is entered. I disagree, however, with the court’s dictum to the effect that it is not necessary to determine “whether ORS 131.340 is to be construed broadly as in People v. Megladdery, 40 Cal App2d 748, 106 P2d 84 (1940), or narrowly as in State v. Rider, 46 Kan 332, 26 P 745 (1891).” Such a statement is misleading, for the rule in People v. Megladdery, 40 Cal App2d 748, 106 P2d 84, can have no application in this state by reason of the requirements of the Oregon Constitution.
Article I, Section 11 of the Oregon Constitution provides:
“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury m the county in which the offense shall have been committed * * Emphasis mine.
The legislature in enacting ORS 181.340 could not ignore this requirement of the Constitution, therefore the language “acts or effects thereof constituting or requisite to the consummation of the crime” refers to facts which disclose some element of the crime charged. People v. Thorn et al, 21 Misc 130, 47 NYS 46; People v. Lee, 334 Mich 217, 54 NW2d 305; 22 CJS 479, Criminal Law, § 185 (17).
As is demonstrated by the opinions of their courts, California has no constitutional requirement that the defendant shall have the right to be tried in the county where the crime was committed.
State v. Megladdery, supra, cites and relies upon People v. Richardson, 138 Cal App 404, 32 P2d 433. In People v. Richardson Justice 'Spence carefully pointed out that the constitution of that state provides, “The right of trial by jury shall be secured to all, and remain *380inviolate,” (32 P2d 433, 434) and reasoned that since venue was not fixed !by the constitution, that power in all cases rested with the legislature. In that particular case a felon had escaped from prison. The legislature had provided “The jurisdiction of a criminal action for escaping from prison is in any county of the state.” Section 787, Cal Penal Code; 32 P2d 433, 434. The court held the defendant was not denied any of his rights by not being tried in the county where he escaped.
I must however, dissent from the conclusion of the majority that the defendant was accorded a fair trial. It seems clear to me that the majority are in error when they state “Dana’s testimony was relevant and it would not have been error to submit it to the jury.”
The majority, in my opinion, in making this statement, fail to understand the issue presented. The question is not that the jury could not infer from the fact that lime was found in the well and that Violet Bostwick had testified the defendant procured lime, that the defendant purchased or obtained lime somewhere, if they first found he committed the crime. The question is whether or not, from the evidence of Dana, the jury could infer that the defendant made this particular purchase at or about the time of deceased’s disappearance, and was thus connected with the commission of the crime. In other words, there is no identification of this defendant as the purchaser of this particular lime to establish his guilt by showing a guilty mind. To show his guilt by establishing this act after the crime had been committed would be the only proper purpose of such evidence.
It is the rule of law that before evidence of a particular fact is relevant there must be evidence identifying the party sought to be charged with the doing of *381the particular act from which an inference may he drawn. There is not the slightest evidence in this case that this defendant ever purchased four sacks of lime at any time from the Masons (Supply Company. All of the evidence merely raises a suspicion that perhaps this particular sale was made to the defendant.
In this posture we have the same situation as that of a witness testifying to finding a defective motor in defendant’s shop after plaintiff was injured and there is no evidence that this was the same motor that injured the plaintiff, (Owen v. Alabama Great Southern R. Co., 181 Ala 552, 61 So 924); or, the testimony of a witness as to the distance of skidmarks at the scene of an accident, without evidence that the skid-marks were made by defendant’s vehicle, (Schwam v. Reece et al., 213 Ark 431, 210 SW2d 903); or, the testimony of a witness that he smelled liquor on a bus, for the purpose of showing that defendant driver of the bus had been drinking liquor, when there was no evidence that the odor emanated from the bus driver, (Conley v. Jennings, 296 Ky 652, 178 SW2d 185); or, testimony that a mark on an automobile looking like a hand impression, without evidence that it appeared to be the impression of one of the hands of the injured pedestrian, (Hyman v. Bierman, 130 NJL 170, 31 A2d 762); or, where a party suing for the price paid for corporation stock testified that he was advised to purchase the stock by a fortune teller, and there was no showing of any connection between the fortune teller and the defendant, (Johnson v. Domer, 76 Wash 677, 136 P 1169).
In each of the above cases the evidence would have been relevant if there had been substantial evidence which identified the fact sought to be established with the actions of the defendant, but since it could not, it *382would at most only cast suspicion, and lead to a verdict based upon speculation and conjecture, not fact. This is the established rule in Oregon applicable to criminal cases, and when such evidence is admitted over objection, error is committed which may require a reversal of the judgment. State v. Fong, 211 Or 1, 314 P2d 243; State v. Sing, 114 Or 267, 229 P 921; State v. Bailey, 90 Or 627,178 P 201.
In this case, for a jury to reach a conclusion as to the guilt of the defendant, they had to rely almost entirely upon the testimony of Violet Bostwiek, who had been convicted of the crime of false swearing. She had testified, among other things, that defendant told her he had purchased quicklime at a big store (whether in Portland, or where, is not stated) for the purpose of destroying identification of the body.
When Mr. Dana was called as a witness for the state, he testified as follows:
“Q On the date, did you sell four sacks of processed quicklime? [sic]
“A Yes, I did.
“Q Do you have a record of that sale with you?
“A Yes, I do.
“Q Will you produce it, please?
“* * * State’s Exhibit Number—
“THE CLERK: 58 for identification.
“(Whereupon STATE’S EXHIBIT NO. 58 was thereupon marked for identification.)
“MR. HOWLETT: Q Now, what is processed lime?
“A Processed line [sic] is lime that hasn’t been slaked.
*383“Q What is the difference between processed lime and so-ealled quicklime?
“A There is no difference.
“Q What do you call it — what name do you have in the trade for it?
“A Hot lime.
“Q And how often do you have occasion to sell hot lime in such small quantities ?
“A It is very irregular to just sell four sacks of hot lime to a cash customer such as this was.
“Q Is this a cash sale ?
“A Yes.
“Q Will you explain to the jury why it is a rare thing to sell such a small quantity?
“A Well, it has a limited use. It has to be slaked or hydrated, which means combining it with water, before it can be used, and very few people use it for — buy it before it has been slaked. Slaked lime is sold, as such, and you don’t have to go through the process of boiling it out with water. That is why it is called ‘hot lime.’ It boils when you combine it with water.
“Q _ Now, on October 28th of 1957 — let me ask you this, on that date, did you have any other sales of quicklime?
“A No other cash sales for quicklime.
“Q Now, how large a concern is Masons Supply Company, relatively speaking, with other concerns of the same type, of the same type?
“A We are one of the largest in the city.
“Q Now, do you ever recall having made any sales, whatsoever, to the — at your place of business to the defendant in this case, Lee Parker?
“A No, I don’t.
“Q Have you ever seen him before?
“A I have seen Mr. Parker before, as I stated originally.
*384“Q Have you ever seen him in your place of business?
“A Yes, I have.”
On cross-examination, the witness testified as follows:
“Q Did you make a sale, cash sale, on the 28th day of October, 1957 ?
“A Yes.
“Q Is this the sale that you are talking about, this sale of four sacks of processed lime?
“A Yes, it is.
“Q I suppose the obvious question is, did you make that sale to this defendant, Lee Parker?
“A That I can’t say. I made the sale, and I don’t know who I made it to.
“Q Now, did you — do I understand you correctly that you had seen the defendant, Lee Parker, in your place of business on other occasions ?
“A That’s right.
“Q Do you know how many other occasions ?
“A No, I don’t.
“Q Would you say more than two occasions?
“A I wouldn’t say that, no.
“Q Would you say less than that?
“A I wouldn’t know how many occasions.
“Q Could it have been several times?
“A It could have been.
“Q Woxdd you have recognized Lee Parker upon seeing him?
“A Yes.
“Q Have you ever had occasion to be at the Police Station with regard to identifying an individual that might have purchased this lime?
“A Yes, I have.
“Q Did you have a lineup viewing at that time?
“A That’s correct.
*385“Q Do you know if the defendant, Lee Parker, was in that lineup ?
“A Yes, he was.
“Q Did you identify the defendant, Lee Parker, at that time as being the individual that had purchased the lime from you?
“A No, I did not.”
The above testimony discloses only that a sale of lime was made to some person by one of the large concerns in a city of more than 350,000 population, and though the defendant was known to the salesman, there is no identification of the defendant as the purchaser, or even of the defendant’s presence in the place of business at or about the date of the sale. Also, the state was apprised of these facts long before the case was called for trial. The state also knew this evidence was irrelevant, for Dana’s evidence was not offered in the first trial, and, as will be noticed, the state on direct examination did not attempt to connect the defendant with this purchase. The only purpose, therefore, of its introduction, was to cast suspicion by innuendo upon the defendant, and in the same manner, seek to bolster the testimony of Violet Bostwick.
The question of whether or not an offer of improper evidence should or should not require a reversal is not one that lends itself to strict rules, but depends to a large extent on the importance of the evidence offered, and the good or bad faith of counsel. Paul v. Drown, 108 Vt 458, 189 A 144; 109 ALR 1085, and annotation, page 1089.
Certainly it is not every case where some slight prejudice may result that justice requires a reversal, but where substantial prejudice is the result of deliberate action to create that prejudice, the offending *386party ought not to be permitted to prosper through his own wrong. This has been the consistent holding of this court where, as in a personal injury case a party has deliberately and intentionally injected insurance coverage into a trial of the cause. Rosmuny v. Marks, 118 Or 248, 246 P 723; Jones v. Sinsheimer, 107 Or 491, 214 P 375; Vasquez v. Pettit, 74 Or 496,145 P 1066.
It would seem to me that this rule should be more strictly enforced to safeguard the liberty and life of the individual than where only personal possessions are involved. Also, the admonition of the court to disregard this testimony would not cure this error. Kraft v. Montgomery Ward & Co., Inc., 220 Or 230, 234, 315 P2d 559, 348 P2d 239; Bratt v. Smith et al., 180 Or 50, 175 P2d 444; Guedon v. Rooney, 160 Or 621, 644, 87 P2d 209.
In Mooney v. Holohan, 294 US 103, 79 L Ed 791, the Supreme Court of the United States, in considering a petition for an original writ of habeas corpus wherein the petitioner urged that the state knowingly used perjured testimony, and knowingly suppressed evidence to impeach that testimony, held that such action was a denial of due process. In commenting thereon the court said:
* * Reviewing decisions relating to due process, the Attorney General insists that the petitioner’s argument is vitiated by the fallacy ‘that the acts or omissions of a prosecuting attorney can ever, in and by themselves, amount either to due process of law or to a denial of due process of law.’ The Attorney General states that if the acts or omissions of a prosecuting attorney ‘have the effect of withholding from a defendant the notice which must be accorded him under the due process clause, or if they have the effect of preventing a defendant from presenting such evidence as he possesses in *387defense of the accusation against him, then snch acts or omissions of the prosecuting attorney may be regarded as resulting in a denial of due process of law.’ And, ‘conversely,’ the Attorney General contends that ‘it is only where an act or omission operates so as to deprive a defendant of notice or so as to deprive him of an opportunity to present such evidence as he has, that it can be said that due process of law has been denied.’
“Without attempting at this time to deal with the question at length, we deem it sufficient for the present purpose to say that we are unable to approve this narrow view of the requirement of due process. That requirement, in safeguarding the liberty of the citizen against deprivation through the action of the State, embodies the fundamental conceptions of justice which lie at the base of our civil and political institutions. Hebert v. Louisiana, 272 U.S. 312, 316, 317. * * *” (294 US 103, 111).
In Wilde v. Wyoming, 362 US 607, 4 L Ed2d 985, the Supreme Court of the United States held that where the prosecutor wilfully suppressed testimony favorable to the defendant, there was a denial of due process.
And again, in Alcorta v. Texas, 355 US 28, 2 L Ed2d 9, Alcorta was charged with the murder of his wife. He did not deny the homicide, but relied upon the defense under a Texas statute that the killing was done in “sudden passion arising from adequate cause. * * *” The court said:
“Castilleja, the only eye witness to the killing, testified for the State at petitioner’s trial. In response to inquiries by the prosecutor about his relationship with the petitioner’s wife, Castilleja said that he had simply driven her home from work a couple of times, and in substance testified that his relationship with her had been nothing more than a casual friendship. He stated that he had given her *388a ride on the night she was killed and was parked in front of her home with his car lights out at two o’clock in the morning because of engine trouble. The prosecutor then asked what had transpired between Castilleja and petitioner’s wife in the parked car:
“ ‘Q Did you have a conversation with Herlinda ?
“ ‘A Yes; she opened the door. She was going to get off [sic] and, then she told me to tell my ■sister to come and pick her up in the morning so she could go to church.
“ ‘Q To tell your sister, Delfina Cabrera, to come pick her up in the morning so she could go to church?
‘“A Yes.’
“At the conclusion of Castilleja’s testimony the following colloquy took place between him and the prosecutor:
“‘Q Natividad [Castilleja], were you in love wdth Herlinda?
“‘A No.
“ ‘Q Was she in love with you?
“‘A No.
“ ‘Q Had you ever talked about love f
‘“A No.
“ ‘Q Had you ever had any dates with her other than to take her home?
“ ‘A No. Well, just when I brought her from there.
“ ‘Q Just when you brought her from work?
“‘A Yes.’
“All this testimony was quite plainly inconsistent with petitioner’s claim that he had come upon his wife kissing Castilleja in the parked car.
“Some time after petitioner’s conviction had been affirmed Castilleja issued a sworn statement in which he declared that he had given false testi*389mony at the trial. Relying on this statement petitioner asked the trial court to issue a writ- of habeas corpus. He contended that he had been denied a fair trial in violation of State and Federal Constitutions because Cas tille j a had testified falsely, with the knowledge of the prosecutor, that his relationship with petitioner’s wife had been only ‘that of a friend and neighbor, and that he had had no “dates,” nor other relations with her, when in truth and in fact the witness had been her lover and paramour, and had had sexual intercourse with her on many occasions . . . .’ Petitioner further alleged that he had no knowledge of this illicit intercourse at the time of his trial.
“A hearing was held on the petition for habeas corpus. Castillera was called as a witness. He confessed having sexual intercourse with petitioner’s wife on five or six occasions within a relatively brief period before her death. He testified that he had informed the prosecutor of this before trial and the prosecutor had told him he should not volunteer any information about such intercourse but if specifically asked about it to answer truthfully. The prosecutor took the stand and admitted that these statements were true. He conceded that he had not told petitioner about Castilleja’s illicit intercourse with his wife. He also admitted that he had not included this information in a written statement taken from Castilleja prior to the trial but instead had noted it in a separate record. At the conclusion of the hearing the trial judge denied the petition for habeas corpus. Petitioner then applied to the Texas Court of Criminal Appeals for a writ of habeas corpus but that court, acting on the record made at the hearing before the trial court, also refused to issue the writ. We granted certiorari, 353 TLS. 972. Texas concedes that petitioner has exhausted all remedies available to him under state law.
“Under the general principles laid down by this Court in Mooney v. Holohan, 294 U.S. 103, and Pyle *390v. Kansas, 317 U.S. 213, petitioner was not accorded dne process of law. It cannot seriously be disputed that Cas tille ja’s testimony, taken as a whole, gave the jury the false impression that his relationship with petitioner’s wife was nothing more than that of casual friendship. * * *”
In the present case, neither in oral argument nor in the briefs does the state contend that it did not know, but honestly believed, that evidence would be offered to connect the sale of the lime to the defendant. I am able to discover no difference in principle between deliberately using incompetent damaging evidence in the hope of obtaining a conviction, and deliberately withholding evidence favorable to a defendant. Each type of action denies a defendant a fair trial.
While it is the duty of all prosecuting attorneys to prosecute those accused of violating the laws of this state with vigor, their duties do not transcend the requirement of the law that the guilt of a party shall be established after a fair and impartial trial conducted according to the rules prescribed for that purpose.
“The primary duty of a member of the State Bar engaged in public prosecution is not to convict but to see that justice is done.” Rule 28, Rules of Professional Conduct, Oregon iState Bar.
Honesty and fairness will not permit the courts to sanction improper conduct by sustaining verdicts obtained in deliberate violation of rules of law promulgated and established for the purpose of providing that convictions shall be had upon competent evidence and not “innuendo and pettifoggery.” State v. Rollo, 221 Or 428, 438, 351 P2d 422.
There is also in this case such conduct of the prose*391cution that this judgment should not be permitted to stand.
The state called Violet Bostwick to testify that in the course of a trip with the defendant from Portland to San Francisco the defendant told her the rope he was carrying in the car had been used by him to lower one Harold Keith into the well to retrieve the body of Holloway for better concealment. She also testified that defendant told her he had purchased two fifths of liquor in Portland and that the deceased had gotten into a car because deceased would go anyplace for liquor, and further, he had purchased quicklime to destroy identification of the body. This witness had also testified to these facts in the prior trial, and subsequent thereto made affidavit to the effect that her testimony given in the trial was false. Later this witness was indicted for false swearing. This indictment was based on the affidavit that she had sworn falsely in the first trial of the defendant. She pleaded guilty to this charge. These facts were all brought to the attention of the jury in this case. The question of the veracity of this witness was clearly a pivotal issue in this case. The Deputy District Attorney, in his closing arguments, stated:
“So, we ask you to give to the law enforcement officials, even if I may be so bold as to ask to our office, and have some, give some credit to our sensibilities in developing these cases. In this particular case this Bostwick girl was telling the truth. We wouldn’t have her if she wasn’t. It is impossible for her to have told that story.”
And moments later continued:
“Now, I ask you people to go into that jury room and have a little reliance on the police officers, and if I may be so bold again on our office *392because these witnesses know what they are talking about. They testify to the truth, and Parker is guilty of killing Mr. Holloway. * * *”
Again, the state prosecutor said:
“The state is not permitted and has no right to permit or to call any witness to that witness stand that it cannot vouch for that witnesses’ credibility to you one hundred per cent.”
Also, after the trial court had ruled that a certain tape recording taken by a San Francisco officer of his conversation with Violet Bostwick was inadmissible in evidence, the Deputy District Attorney, after stating to the court and defense counsel in chambers:
“I can’t tell the jury defense counsel wouldn’t play it. That is improper. The only thing I could do is take what is in the record, and that is that a tape recording was taken of her conversation by Lt. Nelder. I can’t refer you — I can’t even begin to refer to the fact that we didn’t put it in[,]”
in argument, for the purpose of bolstering the testimony of Violet Bostwick, made the following statement:
“* * * We played the recording, and that was too bad for Harold Keith because the recording was very telltale. Now, this recording, counsel had it and for the purpose of examination. Of course, he knows what it says or could find out from the other lawyers. He could offer it to you to impeach her if there was any difference. Did he offer to play it? You can take that into consideration in determining the nature of that recording. If Mr. Sundstrom wanted to play that recording, he could do it, but he didn’t.”
The defendant contends that the above statements of the prosecuting attorney, though not objected to, *393were so erroneous and prejudicial that the defendant was denied a fair trial.
Eule 15 of the Canons of Professional Ethics of the American Bar Association states, “It is improper for a lawyer to assert in argument his personal belief in his client’s innocence or in the justice of his cause.” It is also highly improper to attempt to bolster the testimony of a witness by personally vouching for the witness’ veracity. East v. Commonwealth, 249 Ky 46, 60 SW2d 137; Fitzgerald v. State, 91 Okla Cr 437, 219 P2d 1024; Hall v. State, 115 Tex Cr 548, 27 SW2d 187; People v. Nichols, 159 Mich 355, 124 NW 25.
With reference to the statement of the prosecuting attorney last set out, it is quite clear that the prosecuting attorney went beyond the evidence in the record. The record in this case discloses that a tape recording was made of an interview between San Francisco police officers and Violet Bostwick — this unknown to Violet Bostwick. The recording itself, though offered by the state, was not received in evidence, therefore its contents were not for the consideration of the jury. In spite of this, however, the tenor of the prosecutor’s argument is that he has heard the recording; that it was the fault of defendant that they were not permitted to hear it; and if they were permitted to hear this recording, they would know that Bostwiek’s testimony concerning the defendant was true.
Early this court laid down the rule that it was reversible error for counsel to state facts pertinent to the issues not in evidence. Tenny v. Mulvaney, 8 Or 513.
In Huber v. Miller, 41 Or 103, 68 P 400, 54 Cent L Jour 429, Mr. Justice Wolverton stated the rule thusly:
“It is the privilege of the counsel in argument *394to comment upon the evidence and facts proven, and to draw all legitimate inferences therefrom. In this the law accords to him a large degree of freedom, and the means thus accorded is justly regarded as most efficient in arriving at the truth. The latitude or range of argument, however, cannot be permitted to extend beyond the facts in evidence, and it is a just and ample cause for reversal where counsel, against objections, are notwithstanding allowed to state facts pertinent to the issues not in evidence, or to assume in argument that such facts are in the case. The jurors are triers of fact upon the evidence adduced, which is scrutinized in its admission by the court, and they must exclude extraneous matters from consideration in arriving at their verdict; hence it is inconsistent and incompatible with the dictates of common justice for counsel to attempt to influence them by statements of facts outside the range of evidence, * * (41 Or at 115).
As admitted by the defendant, no objections were made to these statements of the prosecuting attorney. It is a rule of law that only error legally excepted to will be reviewed and considered by this court on appeal. This court does, however, reserve the right in proper cases to take notice of errors of law apparent on the face of the record, though no objection was made in the trial court. State of Oregon v. Nodine, 198 Or 679, 259 P2d 1056.
A proper case exists whenever it appears that the errors committed have prevented a defendant from having a fair trial as contemplated by law. State v. Bouse, 199 Or 676, 264 P2d 800; State of Oregon v. Moore, 194 Or 282, 241 P2d 455; State v. Pace, 187 Or 498, 212 P2d 755.
The remarks of the prosecuting attorney were clearly erroneous and prejudicial, and this together *395■with the deliberate introduction of irrelevant evidence, leaves no doubt in my mind that the defendant was not accorded a fair trial. I therefore dissent.
Mr. Justice Rossman joins in this dissent.