Page:North Dakota Reports (vol. 3).pdf/347

 counsel have stated to the jury, as facts in counsel's own knowledge, matters prejudicial to the defendant, but immaterial to the issue on trial, and which could not be properly given in evidence; or have sought to augment the force of the evidence by their own positive but unsworn assertion of a pertinent and material matter. Another class of cases comprise the instances where counsel, in argument, have assumed certain facts to be proven, of which there was no evidence whatever. In all the cases it will bg found that the objectionable language was gratuitous. In this instance, under the condition of the authorities heretofore cited, the prosecuting attorney was entirely warranted in believing that, when opposing counsel demanded that he produce and swear as a witness for the state a party who was present at the transaction, it was imperatively necessary for him to render to the court a good and sufficient reason for not so doing. This he did in a manner by no means extravagant, and what he said could only indirectly affect the accused by impairing the credit of a witness whom he subsequently called. But we do not think its effect even went to that extent. The prosecutor was careful to state nothing as a fact. He did not give to the statement the weight of his own assertion of its truthfulness. He simply said that information had come to him of a certain character. This information was such that it would be dangerous for him to call the party, unless he new the information to be false. We do not think the language used, in the manner, under the circumstances, and for the purpose stated, was at all “likely to prejudice the cause of the accused in the minds of honest men of fair intelligence,” and hence there was no abuse of judicial discretion in refusing to strike it out, or caution the jury against it.

The defendant below called one Susie Thompson as a witness, and, after showing her age to be 16, sought to prove by her that she had been seduced by the complaining witness Hill, and that he was the father of her bastard child. After a number of questions in this line had been ruled out on objection by the state, counsel for plaintiff in error made a formal offer to prove that