People v. Dane

Ch&mplin, J.

In this case we are asked to reverse the judgment on the ground that there was not sufficient evidence to support the conviction. We think that there was evidence tending to prove the allegations of the information. It was not very direct and positive, but the jury are the proper persons to draw all proper inferences from the facts proved. The case must be reversed, however, upon another ground.

The prosecuting attorney, in addressing the jury on behalf of the people, asserted to the jury that he knew that the defendant was the man who took the money. The attorney for the defendant objected to this remark, as well as to another made by the prosecutor that the defendant’s assault upon Waltonbury was an outrageous one, and defendant’s counsel took exceptions to such remarks. The court instructed the jury that this remark, about Waltonbury, was entirely unwarranted by the evidence, but said nothing in reference to the prosecutor’s positive statement to the jury that he knew that the defendant was the man who took the money. It is the duty of the public prosecutor to see that the person charged with crime receives a fair trial, so far as it is in his power to afford him one, and it is likewise his duty to use his best endeavor to convict persons guilty of crime; and in the discharge of this duty an active zeal is commendable, yet his methods to procure conviction must be such as accord with the fair and impartial administration of justice; and it is improper for one occupying the position of the prosecuting officer to make a statement to the jury of a fact, as of his own knowledge, which has not been introduced in evidence under the sanction of an oath, relating to the material issues in'the case: State v. Balch, (Kan.) 2 Pac. Rep. 609. If the prosecutor was cognizant of the fact that the defendant was the man who took the money, and wished the jury to be possessed of his knowledge, he should have been sworn as a witness, and given his evidence in the usual way, so that the defendant could have the benefit of a cross-examination. N or can we say that the statement made by the prosecutor was error without prejudice. It is impossible to tell what influence the statements had upon the mind of the jury. It is presumable that statements of fact based upon personal knowledge, made by a person occupying the responsible position of prosecuting attorney of a county, whom the people have chosen because of his ability and character to fill that position, would have both weight and influence with the jury, and may have determined any doubt which they, or some of them, may have entertained of the defendant’s guilt against him.

The judgment must be reversed, the conviction set aside, and a new trial granted.

The other Justices concurred.