THE PEOPLE, Respondent, v. L. B. COOK, Appellant, 148 Cal. 334

BEATTY, C. J. The defendant was convicted of murder in the first degree and sentenced to he hanged. He appeals from the judgment and from an order denying his motion for a new trial. The attorney-general objects to any consideration of the appeal from the order, upon the ground that it does not appear from the bill of exceptions that a motion for a new trial was made or that it was denied, or that the order, if made, was excepted to.

This is all true, but it is also true that the clerk’s minutes of the proceedings upon the arraignment of the defendant for judgment show that he then moved for a new trial, that his motion was overruled, and that he reserved an exception to the order. The minutes of the court do not show the particular grounds of the motion, but in other respects the case is the same as in People v. Ward, 145 Cal. 736, [79 Pac. 435], where this point was somewhat considered, though not decided.

It is unnecessary, however, to dwell upon this feature of the case, for the appeal from the judgment presents every question that could have been raised on an appeal from the order, except that of the sufficiency of the evidence to sustain the verdict; and it would avail the defendant nothing if he could urge that question, because it is clear that the evidence (the whole of which is shown to be included in the bill of exceptions) was sufficient to establish prima facie a ease of murder of the first degree.

For the purpose of disposing of the questions presented by the appeal from the judgment, it will be convenient to state some of the leading features of the case as disclosed by the evidence. For some time prior to the 15th of July, 1904, the defendant and a number of other men, including the deceased, had been employed by one Albers in peeling tanbark at a place known as “The Outlet,” in Mendocino County. Of the localities mentioned in the evidence, it seems that the camp of Albers, where the work of peeling bark was conducted, was up in the canyon.

Descending the canyon, the trail passed the house of Pomalek,—one of the workmen, and a witness for the people,—and at a distance of from one hundred and fifty to three hundred yards farther down reached the house of one Rafaelo, where the defendant, with his fifteen-year-old daughter, Ida, was temporarily residing. The deceased, Max Krieger, and the defendant had been working together for a short time, and down to the day of the homicide were, outwardly at least, on not unfriendly terms.

On July 15, 1904, defendant and Pomalek were working together at the camp; but Krieger, who had been celebrating his birthday, was drinking and partially intoxicated: During the morning, he, in company with two companions, appeared at the Rafaelo cabin, where Ida Cook was alone and engaged in preparing her father’s midday meal. She testifies that Krieger entered the kitchen, took gross liberties with her person, and made most indecent proposals to her. Whatever may be the truth as to the conduct of Krieger at that time, it appears to be unquestioned that it was disagreeable and offensive to the girl. Mrs.

Pomalek, who happened to come to the place while he was there, heard from the outside enough of the conversation in the back room to induce her to expostulate with Krieger, whose demeanor and language convinced her that it was not a fit place for the girl, so that finally she persuaded her to go over to her house on pretense of going for eggs. As the girl did not return, Krieger followed after her, but was informed by Mrs. Pomalek that she was up at the camp with her father, whereupon he left.

When, shortly after noon, defendant and Pomalek came down for their dinner, the girl met her father at Pomalek’s and told him in Pomalek’s presence how Krieger had been acting. She testifies that when Krieger was soliciting her to have sexual intercourse with him and taking indecent liberties with her person she threatened to inform her father, upon which he said: “I am not afraid of the old son of a bitch. I will kill him.” Of course, there is no direct corroboration of her testimony as to the worst of Krieger’s alleged misconduct when they were alone; but she is corroborated to a certain extent by Mrs.

Pomalek and by circumstances. Mr. Pomalek was called as a witness for the people to prove threats by the defendant. He testified on his direct examination that defendant had no pistol in the morning, but brought one with him in the afternoon, and was so mad he could hardly work; that he said that Krieger had been down to the house bothering his little girl; that he felt like going down to the camp and shooting him down before the men and the children; and that he repeated this two or three times.

He further testified that he advised defendant not to shoot anybody, and that he cooled off and towards evening seemed to forget all about it.

At the time defendant was saying these things, Pomalek says he stated in that connection that he had been told by his daughter that Krieger was going to fix him, and that was the reason he had got the pistol,—that “if the overgrown brute came around he would give him all he wanted.” On his cross-examination Pomalek testified that during the four or five days he had worked with defendant. he had manifested no ill-feeling towards Krieger until the afternoon of the shooting, and that he had himself heard the girl tell her father about Krieger’s misconduct and his threats to fix him (defendant).

When they were returning to camp after dinner defendant had Rafaelo’s pistol, and said: “He’s going to fix me, and I am going to be ready for the overgrown brute.” The same afternoon, shortly before six o’clock, Krieger again made his appearance at Rafaelo’s house. He had been drinking, but the testimony of two witnesses (Sowers and Whitcomb), who happened to be there when he arrived and went away with him, is conflicting as to the degree of his intoxication. According to the former he was staggering drunk, needing assistance to enable him to go up the trail towards Pomalek’s.

According to the latter he was quite able to take care of himself, and this is corroborated by Rafaelo. Ida Cook was at the house when Krieger arrived, and Rafaelo and Mrs. Pomalek came a few minutes later. It does not appear that he interfered with her at that time, except to express his displeasure on account of her telling Rafaelo that he had been there drinking his wine. But when Mrs. Pomalek went away—as she did in a few minutes—■ the girl .again went with her to her house, and remained there until her father came down on his way home, when she joined him, and they passed down the trail together.

They were talking, but no one overheard what was said. She testified that all she told her father at this time was that Krieger had been at the house again. Almost immediately after starting down the trail from Pomalek’s, defendant and his daughter met Krieger, Sowers, and Whitcomb, coming up the trail from Rafaelo’s. The evidence of Sowers, Whit-comb, and Ida Cook is conflicting as to what then happened; but in some important points it agrees. Sowers, Whitcomb, and Krieger each had a rifle. Cook accused Krieger of being down at his house, where his girl was, and Krieger denied it.

Cook drew his pistol, and Krieger made some motion that induced Sowers -to seize his rifle and disarm him. Krieger then advanced upon defendant, and defendant shot him, inflicting a wound which caused his death in a few minutes. Sowers says that when the parties met Krieger was drunk and he was assisting him along; that defendant had his hat off and was “white in the face”; that when he took Krieger’s rifle from him he made a drunken stagger towards defendant; that he caught him and drew him back, and at the same moment defendant fired.

Whitcomb says Krieger was not drunk; that he needed no assistance; that he advanced upon defendant (who was commanding him to stand back) in a determined manner, with his hands up as if he meant business; that Sowers did not pull him back. On the question of Krieger’s intoxication Whitcomb was corroborated by Rafaelo and Ida Cook, and by the latter as to the defendant’s repeated command to Krieger to stand back before he shot.

There was, it will thus appear, evidence in the actual circumstances surrounding and immediately preceding the shooting from which the jury would have been warranted in finding either murder in the second degree or manslaughter, if not self-defense, and this state of the evidence has a material bearing upon most of the points to be considered. There remains to be stated, however, the peculiar and most important feature of the case.

The district attorney offered to prove, and was by the court permitted, over the objection of the defendant, to introduce evidence tending to prove, the existence for some months previous to the homicide of an incestuous relation between the defendant and his daughter. The theory upon which this evidence of an independent crime was offered and admitted was that it pointed to a motive on the part of the defendant to murder Krieger.

It was suggested that defendant may have feared that Krieger either knew, or, if he should succeed in winning the favor of the girl, would discover, the criminal intercourse of father and daughter, and would expose their guilt. It was more strongly argued that defendant’s jealousy of any one who sought to ingratiate himself with the girl, whether by honorable or other advances, would prompt him to seek his rival’s life. The exception to the admission of this evidence gives rise to the first question to be considered.

The defendant contends that the" evidence was wholly inadmissible, and even if admissible was no part of the people’s case in chief. The position he takes is that when, by direct evidence of an unlawful killing, the prosecution has made out a prima facie case of murder, the people have no right to add proof of a motive on the part of the defendant to seek his victim’s life, unless in rebuttal, of some affirmative defense.

If this were a sound proposition, it would be difficult to show how this defendant was or could have been injured by admitting at the beginning of the trial evidence which must have- come in at the close. But the proposition is clearly untenable. The prosecution in a criminal case is not obliged to rest upon evidence which merely establishes the guilt of the defendant prima facie—upon evidence, that is to say, which is merely sufficient in law to sustain a verdict of guilty.

The guilt of the defendant must be proved beyond a reasonable doubt in order to secure such a verdict, and the district attorney not only may, but ought to, introduce all proper evidence at his command tending to establish the guilt of the defendant, in order to overcome any doubts or scruples of the jurors. And this is especially true of a trial for murder, where proof of an unlawful killing, in the absence of evidence indicating express malice (deliberate purpose to kill), would only establish a case of murder in the second degree.

Regarding the other ground of objection, the rule that a defendant in a criminal cause can be tried for no other offense than that charged in the indictment or information is universally recognized, and it is equally well established that in order to convict the defendant of the particular offense charged the prosecution is not allowed to introduce evidence of other offenses for the mere purpose of showing that he is a bad man, and therefore more likely to have committed the offense than if he had been of good character.

The prosecution is not even allowed under our law to attack his character by evidence of general repute, except in rebuttal of evidence on that point first introduced by him.

But when some distinct offense is so connected with the crime charged in the indictment that proof of the former, in connection with other evidence, would sustain a probable inference of guilt as to the latter, such distinct offense maybe proved,—as, for instance, to show a motive on the part of defendant to commit the crime charged, or the intent with which an equivocal act has been done, such as passing a counterfeit bill, or receiving stolen goods. The general rule and its exceptions are very elaborately discussed in the opinion of Justice Werner in the celebrated case of People v. Molineux, 168 N.

Y. 290, [61 N. E. 286], where many of the principal authorities are cited. The result of the discussion, I think, may be summed up in the proposition that evidence which is relevant to any material fact in issue in a criminal case cannot be excluded because it may prejudice the defendant by proving him guilty of other crimes than that for which he is on trial. (People v. Walters, 98 Cal. 141, [32 Pac. 864].) The rule as thus stated has been applied in a number of cases decided in this court, of which the following are examples: People v. Lane, 101 Cal. 513, [36 Pac. 16]; People v.

Wilson, 117 Cal. 688, [49 Pac. 1054]; People v. Valliere, 123 Cal. 576, [56 Pac. 433]; People v. Brown, 130 Cal. 594, [62 Pac. 1072], These were all cases in which the prosecution was allowed to prove distinct offenses for the purpose of showing a motive on the part of the defendant to commit the crime charged in the information.

But in order to render evidence of this character admissible, it must have a direct tendency, in view of the surrounding circumstances, to prove the motive or intent or other material fact, and whether it is relevant or not is a question for the court; and in several instances this court has reversed convictions for the admission of evidence of distinct offenses, upon the ground that such evidence had no tendency to prove the charge laid in the information. (People v. Lane, 100 Cal. 379, [34 Pac. 856]; People v. Wright, 144 Cal. 165, [77 Pac. 877].) In People v.

Lane it was held that evidence of a distinct substantive offense cannot be received unless there is some clear connection between the two offenses, from which it may be logically inferred that if guilty of one he is also guilty of the other.

These cases, and the decisions everywhere, clearly sustain the position of the attorney-general that if the fact of incestuous relations between the defendant and his daughter, in view of the other facts in evidence," did furnish the ground for a logical inference that he desired to put Krieger out of the way, and was willing to murder him in order to bring about that result, then proof of such relations was admissible.

On the other hand, the same authorities show with equal unanimity that if the alleged relation between defendant and his daughter had no tendency to establish a motive on the part of defendant to put Krieger out of the way, and therefore avail himself of some pretext for provoking an affray in which he might kill him, the evidence in question was irrelevant, as it was necessarily prejudicial in the highest degree.

It becomes necessary, therefore, to examine the grounds upon which it is contended that a motive on the part of defendant to murder Krieger may be inferred from the assumed fact of the incestuous- relation with his daughter. The first of the two grounds suggested by the district attorney, upon which he argued the relevancy of the testimony,—viz., the possible fear of the defendant that Krieger might know or might find out, and, as a rival for the girl’s favors, might expose, defendant’s criminal intercourse with his daughter,—seems to have been abandoned on the appeal.

No reference is made to it in the attorney-general’s brief, and there is nothing in the evidence to indicate that Krieger had any knowledge of the supposed criminal intercourse, or that he had any opportunity of discovering it. But it is insisted there is evidence that the defendant was jealous of Krieger. All of this evidence is cited in the brief of the attorney-general, and I shall quote it in full. A letter written by defendant to his daughter from the jail and intercepted by the sheriff was read in evidence.

It contains a number of expressions which, in connection with other evidence" introduced at the trial, go very far to prove the charge of incest; but there is nothing bearing upon the point of jealousy of Krieger, unless it is found in the closing sentences: “Remember poor papa. Kiss Tom and Jerry. Don’t have anything to do with any man. Be true to me. By by.” These words follow almost immediately that part of the letter in which he urges his daughter to marry one “George” immediately in order that she may have a protector, and in order to induce George to stick to him.

The only other evidence on the point is that of Pomalek, who testified that, Krieger having mentioned to him his liking for defendant’s daughter, he spoke to defendant on the subject four or five days before the killing: “I says to Mr. Cook that Krieger was a pretty good-looking man, and good worker, and it would be pretty good if his daughter married him and they would be for themselves. Mr. Cook says—well, he says: ‘She wouldn’t go with nobody,’ he says.

He says: ‘My child will stay with me as long as I live.’ He says: ‘If she marries anybody she’s going to let him understand on the start that she never going to leave her papa; that she stay with her papa as long as he lives or as long as she lives. ’ . . . I says: It would be all right if they marry. Mr.

Cook says, if he dó marry, he got to live with them." The same witness, Pomalek, testified in another connection that prior to the afternoon of the day Krieger was killed defendant and he had appeared to be on good terms; but that evening, after hearing his daughter’s report of Krieger’s misconduct, defendant was violently angry and made the threats above detailed.

In other words, it appears by the evidence of this main witness for the state that the defendant for several days before the killing, having reason to believe that Krieger was seeking his daughter in marriage, remained friendly, but became violently enraged when he heard that in his absence Krieger had pursued her with improper solicitations and indecent familiarity.

To my mind, this evidence, so far from sustaining the inference that the jealousy of the defendant had been aroused by any proper attentions of Krieger to his daughter (thereby causing him to seek an opportunity or pretext for killing him), has an opposite tendency,—a tendency to rebut whatever inference it may be claimed is to be drawn from the mere fact of the criminal connection of defendant and his daughter.

The question to be decided, therefore, seems to resolve itself into this: Where the immediate circumstances surrounding a homicide leave it doubtful whether the killing was of deliberate malice, may the prosecution always prove that the slayer was on terms of criminal intimacy with a woman to whom the slain was paying his addresses, even though there is no direct evidence of actual jealousy? Upon this precise question we are referred to no authority directly in point. In People v.

Gress, 107 Cal. 463, [40 Pac. 752], it was held to be error to admit evidence that the defendant had been trying to induce the wife of the deceased to leave him. But that decision is not in point here, although what was said by the court in regard to one of several alleged errors does sustain appellant’s contention upon a point that we have here overruled.

It was conceded in that case that if the defendant’s agency in the killing had not been admitted and had depended on circumstantial evidence, his efforts to seduce the wife of deceased would have been relevant to the question of motive, and the error in admitting it was held to consist in its admission where it was not necessary.

We think this was said without due consideration of the fact that in cases of homicide the presence or absence of motive to kill is always material, whether the killing is admitted or denied, not only in determining the. degree of the murder, if murder, but also upon the question of malice where the plea is self-defense, as in this case, or provocation and sudden passion. What was decided on this point in People v.

Gress, we think, was erroneously decided; but what was conceded seems to sustain the proposition that any existing cause for jealousy on the part of the slayer is relevant in cases of homicide, although it may not appear that jealousy has actually resulted. Aside from this case, there is in the briefs of counsel a dearth of authority on the precise question above stated, and no very convincing argument. We shall therefore go no farther than necessary to decide the precise point presented by the record, which is narrower and more technical than the matter we have been discussing.

When the district attorney offered the evidence of defendant’s criminal relations with his daughter, he offered to connect it with proof that he was extremely jealous of the attentions of any one to her, and that Krieger had been paying her attentions. This offer made the ruling of the court in admitting the evidence correct, and though, in my opinion, the offer was not made good, in the absence of any motion by defendant to strike out the evidence, it cannot be said that there was as to this matter any error in the rulings of the court.

Nor can it be said that the court erred in permitting the district attorney to cross-examine Ida Cook as to previous contradictory statements regarding her relations with her father. He had called her as a witness to prove the sexual intercourse, and she, in response to direct inquiry, had denied that there had ever been any sexual intercourse. He then asked her if she had not made a contrary statement to him within twenty-four hours, and she answered, without objection, that she had, and had made the same statement to others at different times and places.

Cross-examined by defendant’s counsel, she gave it as an excuse for her statement to the district attorney that he had threatened, if she did not admit the intercourse, to “send her to some home.” She made similar excuses for her statements to others. On direct examination on the following day, the district attorney asked her in regard to other statements as to sexual intercourse with defendant, made at other times and places, and in the presence of other persons.

Here for the first time defendant’s counsel interposed an objection, on the grounds, among others, that the evidence was incompetent, and that the examination had gone far enough, which objections were overruled, and the witness answered that she had made one of the statements, but denied others.

This ruling of the court could scarcely be regarded as injurious to the defendant, even if erroneous; for it only added one hearsay statement to a number of others of the same character that had come in without objection, and by which the witness was as completely discredited as she could have been by the addition of one more. But the ruling was not erroneous. The case is not affected by the qualification which this court has from the beginning imposed upon the general language of sections 2049 and 2052 of the Code of Civil Procedure.

The witness in this case did not simply fail to give favorable testimony for the state. Upon the point at issue her testimony was positive against the state. This court has in a number of cases h°eld, and I have no doubt correctly held, that the mere failure of a witness to give favorable testimony for the party producing him does not entitle such.party to prove that he has made contrary statements elsewhere. (People v. Creeks, 141 Cal. 532, [75 Pac. 101], and cases cited.) But it has gone no further in qualifying the language of the statute.

The rule on this subject, its origin, its policy, and its limitations, are very fully discussed in the recent work of Professor Wigmore (Wigmore on Evidence", sec. 902 et seq.), and his conclusion is that under statutes similar to ours the rule is subject to no more stringent qualification than the decisions above referred to.have imposed.

Defendant’s counsel on cross-examination of Ida Cook asked her this question: “Do you know whether he had, in addition to a rifle, a large knife on his person?” This question referred to Krieger and to the time—about noon of the day of the homicide—when, according to the subsequent testimony of the witness, he had threatened to kill the defendant. The question was objected to on the grounds of incompetency, irrelevancy, and immateriality, and the objection was sustained, notwithstanding the offer of counsel to show that the fact was communicated to defendant.

If the objection had been that it was not proper cross-examination, it would have been right to sustain it upon that ground and at that stage of the proceedings; but it was a mistake to hold that if, at the very time he was threatening to kill the defendant, and only a few hours before the fatal encounter, deceased was armed, not only with a rifle, but with a large knife, the fact was irrelevant, or that the testimony of Ida Cook was incompetent evidence of such fact.

And it may be that the ruling upon the objection as made prevented the defendant’s counsel from offering proof of the same fact as part of his own case, when it would clearly have'been admissible as a circumstance to be weighed by the jury in considering the action of defendant in firing upon Krieger after his rifle had been taken away, but when, according to all the testimony, he was advancing upon defendant at close quarters, and, according to some of the testimony, in a threatening manner and in disregard of repeated commands from defendant to stand back.

If this evidence had been offered at the proper time as part of defendant’s case in support of his plea of self-defense, and excluded by the court on the objection as made, it “would have been a serious error. The court did not err in admitting the intercepted letters. That defendant was the author of the letters was proved by direct evidence that he had delivered them to the messengers, who conveyed them out of the jail, and the evidence of the handwriting, if insufficient of itself, was superfluous.

The defendant at the close of the trial requested the court to give, among others, the following instruction: “Evidence has been introduced by the prosecution in this ease tending to show that defendant, prior to the shooting, had had illicit intercourse with his daughter.

I charge you that, although it should appear.to you from the evidence that such a state of affairs existed, nevertheless the defendant would not for that reason he deprived of the right of self-defense, either in protection of his life or the prevention of great bodily injury, nor would he be deprived thereby of the right to the indulgence the law allows for killing upon a sudden quarrel or in the heat of passion.

Whether or not the defendant had- at some previous time committed another crime different from that for which he is being tried cannot be taken into consideration by you as a reason for convicting him of the crime with which he is charged.” This request to instruct seems to us to have been wholly unobjectionable in point of law and strictly pertinent to the facts in evidence.

It was of the highest importance to the defendant in this case, as it always is to any defendant in any case in which evidence of a distinct offense has been admitted for the purpose of showing motive to commit the crime charged that the jury should be cautioned not to consider such evidence for any but the limited purpose for which it has been admitted, and we cannot see that the instruction as presented contained a single word beyond what the defendant had a right to request.

The court, however, refused the instruction, and its refusal is justified on the ground that another instruction framed by the judge on the same point was given. It is true that the instruction given stated the law correctly; but it was brief, general, and colorless in comparison with the instruction asked, and had the effect of minimizing the importance of a consideration which could not have been stated with too much emphasis. The instruction as asked should have been given.

The defendant’s requests to instruct, numbered 7 and 8, related to a part of the law of self-defense strictly pertinent to the evidence of his witnesses. The wording of the seventh request is perhaps faulty, but the eighth stated the proposition of law in an entirely unobjectionable form, and the refusal of the court to give it is not justified by the instructions given of its own motion.

Those instructions, while entirely correct and proper, were confined to a statement of what is not self-defense, and contained only an implication of the proposition which the defendant had a right to have stated to the jury in direct terms. The refusal of the court to allow defendant’s requests to charge numbered 17 and 18 was placed partly upon the ground that they were presented too late, in view of a rule of court requiring requested instructions to be presented before the conclusion of the argument.

What the terms of the rule are does not appear from the bill of exceptions; but if, as asserted by counsel for appellant, it applies only in civil cases, it did not justify a refusal to consider the requests, though presented after the argument and after the other instructions had been read. Nor was the refusal of the eighteenth request justified by reason of the instructions given. It related to the law of self-defense, and what has been said of the eighth request applies equally to it.

There, remains but one other matter to be noticed: During his closing argument to the jury the district attorney allowed his zeal to betray him into the statement of a matter not in evidence, which was necessarily injurious to the defendant; and the court, upon objection to the statement and argument based upon it, justified the course of the district attorney upon the ground that counsel for defendant had referred in his argument to matters not in evidence.

The following are the remarks of the district attorney, the objection of the defendant, and the ruling of the court: “I say to you, gentlemen of the jury, that there is not in the history of the world, I believe, a case parallel with this case here, if you gentlemen of the jury knew the history of this Cook family in all its ramifications. Mr. Craig went outside of the record here to bolster up the character of this defendant, and told you how energetic he had been in defense of the honor of his daughters.

He told you how he had caused a man by the name of Ferguson to be arrested and sent to Folsom because of raping or having sexual intercourse with this little girl Belle, who testified on the stand here. But he neglected to tell you, gentlemen 'of the jury, that that same man Ferguson was at that time engaged to be married to his daughter Ida when he sent him to Folsom. He did not say anything about that to you as a possible motive why this defendant wanted to get Ferguson out of the way. It was not necessary to mention that.

He did not go into all those facts because, gentlemen of the jury, he did not want to treat you fairly upon that subject. That should never have been mentioned in the case. Mr. Preston (interrupting).—We desire to object to the remarks made by the district attorney relative to the question of the engagement to be married and the motive for the prosecution of Ferguson, and move that it be stricken out and the jury instructed to disregard it. The Court.—I think Mr. Craig opened the way for those remarks. Mr. Preston.— We except to the remarks of the court.

The Court.—He referred to the action of the defendant with reference to Mr. Ferguson, when there was no evidence of it, and let the door open. Mr. Preston.—We object to it, and make an exception to the ruling.” It was misconduct, calling for rebuke from the court, for the district attorney to state a fact not in evidence in order to found upon it an argument that defendant had sent one man to the penitentiary from the motive of jealousy, and therefore was capable of killing another upon the same incitement.

And it was no excuse for the misconduct that the counsel for defendant had referred in his argument to the Ferguson trial. In the case of People v. Kramer, 117 Cal. 650, [49 Pac. 842], this court said in response to this excuse for similar misconduct: “Assuming that the comments of the district attorney were not warranted by the evidence, his act would not be justified by the fact that defendant’s counsel had already committed a like impropriety.

The proper way to correct such an abuse of privilege on the part of either counsel is for his adversary to call it to the attention of the court and have it stopped.” We cannot too strongly insist upon the observance of this admonition, as the only mode of confining criminal trials within proper limits, or conducting them with proper decorum, or—which is vastly more important—preserving the right of the defendant to be convicted only upon legal evidence addressed to the charge upon which he is being tried.

Considering the nature of the collateral offense imputed to the defendant in this case, it is apparent that the evidence concerning it must have had a tendency to bias the jurors against him, and it was incumbent upon court and counsel to confine their attention to the evidence and to the only legitimate -purpose of that evidence. That the statement to the jury of an -incriminating fact not in evidence as the basis of an argument against the defendant by the district attorney is grave misconduct has been decided by this court in People v. Valliere, 127 Cal. 66, [59 Pac. 295], and in People v.

Sing Lee, 145 Cal. 191, [78 Pac. 636]. It is true that in those cases evidence of the facts used in argument by the district attorney had been ruled out by the court, and this certainly made the offense more flagrant; but that circumstance was not the ground of the decision, though it was perhaps the occasion for the severe terms of reprobation by which the conduct of the district attorney was characterized in the opinion of Judge Temple in the case of Yalliere, the closing words of which we quote: “The court promptly rebuked the attorney, but that did not cure the injury.

Rebukes do not seem to have any effect upon prosecuting officers, and probably as little upon juries. The only way to secure fair trials is to set verdicts so procured aside.” The judgment and order of the superior court are reversed and the cause remanded. Van Dyke, J., concurred.