1. The prosecuting attorney relied on the holding inZimmerman v. Whiteley, 134 Mich. 39, 44, to justify the action taken by him. The trial court also doubtless had it in mind. The action was for alienation of affections, brought by a husband against the mother of his wife. When examined by his counsel, plaintiff testified to certain statements made to him by his wife. The defendant called the wife for the purpose of interrogating her as to whether she had made such statements. She was, as here, not permitted to be sworn as a witness. The court said:
"The offer of this witness is assigned as error. This contention cannot be maintained upon any theory. The defendant's daughter was a competent witness. He might have waived the privilege. He chose not to. Defendant was not under obligation to ask plaintiff or his counsel privately whether he would consent that his wife might be a witness. Defendant was entitled to make the offer in open court. It was also entirely competent for the jury to know that the plaintiff refused to let his wife testify in regard to the words he had himself placed in her mouth. In Rice v. Rice, 104 Mich. 371, the same offer was made in open court, and the same ruling had."
The only distinction is in the fact that Zimmerman v.Whiteley was a civil case. The error complained of is not that the statute was violated by permitting *Page 26 the husband to be examined as a witness, but that the jury were prejudiced by the request that he be called and the objection of the defendant which necessarily followed. If the rights of a litigant, whether criminal or civil, have been violated by an error committed on the trial, which, in the opinion of this court, affected the verdict of the jury, a new trial should always be granted. I can see no reason for applying this rule any differently in criminal than in civil cases. No such distinction is noted in any of the cases. In People v. Osborn,205 Mich. 531, where a somewhat similar question was under consideration, a number of civil cases were cited, illustrative of the rule that such misconduct on the part of counsel may be cured by an instruction of the court. I think the ZimmermanCase was correctly decided and that we should follow it.
2. I am also of the opinion that if an error was committed by the prosecuting attorney it was cured by that part of the charge of the court quoted in the opinion of the Chief Justice. The jury were instructed in no uncertain language that they must not "consider or give any weight" to the fact that defendant's husband was called as a witness, that "respondent is not to be prejudiced by the making of such objection and, therefore, you will leave that whole matter out of your deliberation entirely." That the error might be cured seems to be conceded. An error, somewhat similar, and it would seem quite as prejudicial, was held to have been cured inPeople v. Osborn, supra. The only difference I can see in the curative language of the instruction in that case and that here used was that the court, besides telling the jury that "the fact that it (the question) was asked should have no influence upon your mind whatever," also said to them that "the asking of the question was not lawful." The sustaining of an objection to any question asked is, in *Page 27 effect, a holding that it is "not lawful" to ask it. Such a statement by the court does not, in my opinion, tend to add such weight to the instruction given as would cause the jury to be more deeply impressed by it.
Can we say as a matter of law that the failure of the court to accompany his ruling excluding the testimony "by an unqualified admonition of the unlawfulness of the calling" prejudiced the defendant? It seems to me that we place a very low estimate upon the intelligence of the average jury when we assume that they will not obey the instruction of the court that they should "leave that whole matter out of your deliberation entirely," unless the court at the same time reprimands the prosecuting attorney for making the offer.
But I think we should say upon this record that the conduct of the prosecuting attorney was not such as would have warranted the trial court in reprimanding him. He but followed the course which had been approved of by this court inZimmerman v. Whiteley, supra. Can it be said that his failure to foresee that this court would hold that a different rule is to be applied to such a procedure in civil and criminal cases is any indication that he was not acting in good faith? If satisfied that he was so acting, we think there are few judicial officers who would feel that his conduct deserved a reprimand even though it "was not lawful." Attorneys are officers of the court and the interests of their clients demand that their conduct, unless flagrant, shall not be criticized in a manner calculated to disparage them in the eyes of the jury.McIntosh v. McIntosh, 79 Mich. 198; McDuff v. Journal Co.,84 Mich. 1 (22 Am. St. Rep. 673); Williams v. West Bay City,119 Mich. 395; People v. O'Hare, 124 Mich. 515; People v.Leonzo, 181 Mich. 41. *Page 28
In People v. Boyd, 151 Mich. 577, 580, this court, speaking through Mr. Justice CARPENTER, said:
"We are not called upon to say whether or not the prosecuting attorney was correct in this legal position. He made the claim in good faith and he had a right to make it."
He then quotes the following from the opinion of Mr. Justice MONTGOMERY in Knickerbocker v. Worthing, 138 Mich. 224, 239:
"The lawyer is not bound to guarantee that his position on the legal questions that arise during the progress of a trial shall in all cases be unassailable. To impose such a burden upon counsel would render fair discussion of legal questions impossible, and would withdraw from the trial judge the great aid now derived from arguments of counsel."
I concur in the conclusions reached by the Chief Justice on the other questions discussed by him.
The judgment should be affirmed.
CLARK and STEERE, JJ., concurred with SHARPE, J.