The opinion
I dissent from the judgment of reversal, and concur generally in the views expressed by Justice Shaw in his dissenting opinion. In regard to the charge of misconduct on the part of the district attorney in argument, I have no doubt that the remark complained of as to an existing engagement of marriage between Ferguson and the *Page 356
daughter Ida was improper; but I do not think that under the circumstances of this case we have the right to assume that the jury may have been at all influenced thereby, in view of the explicit instruction of the court to the jury, given during the argument, that they must not consider or be influenced by any remark of the district attorney, but must decide the case on the law and the evidence.
I concur in the views expressed by Justice Henshaw upon the question as to the admissibility of the evidence tending to show the relations existing between defendant and his daughter Ida, and also in what is said by him as to the questions asked the witness Ida by the district attorney in relation to her previous statements to him and to others, and in what is said by him as to the only basis upon which such questions can properly be allowed.
Rehearing denied.
In denying a rehearing, the following opinion was rendered on January 12, 1906: —