Duffie, C.
An information was filed against the plaintiff in error charging him with adultery with one Maud Oattron, the wife of William Oattron, who was the complaining witness in this case. On the trial Maud Oattron was called as a witness by the state. Being examined by the county attorney, she stated that she was the wife of William Oat-tron, the complaining witness, and had been acquainted with the defendant for about seven years. She further testified that she had seen the defendant on the 18th of May, 1904, both at her own house and at her husband’s livery barn. She was then asked to state to the jury what took place between Mr. Powers and herself on or about the 18th [228]*228of May, 1904, and replied that she did not care to answer, and claimed her privilege not to testify. Her claim of privilege was sustained by the court, and she was dismissed from the stand. In his argument to the jury the county attorney called attention to the refusal of Mrs. Cattron to testify, in the following language: “I call vonr attention to the witness that comes on the witness stand and hides behind her constitutional privilege and exemptions. You would be justified as taking that as a confession of her guilt.” Exceptions were immediately taken to this line of argument by the attorneys for defendant, but the presiding judge being absent in his private room preparing his instructions to the jury, no immediate ruling of the court could be had until the reporter informed the judge that objection was being taken to the line of argument pursued by the county attorney, whereupon he immediately returned to the bench, when that part of the argument objected to was stated in his presence by counsel for the defendant, and the court thereupon stated to the county attorney that he should desist from pursuing that line of argument, and he orally charged the jury that they should pay no attention to the fact that the witness, Maud Cat-tron, had claimed her constitutional and statutory right to refuse to testify, or the reference to such fact made by the county attorney, and that such failure on her part to testify should not be taken against the defendant.
The facts above stated are shown by an affidavit filed by the defendant in support of his motion for a new trial, as well also as a record entry made and certified by the trial judge and attached to the bill of exceptions. The defendant’s affidavit is not included in the bill of exceptions, and it is objected that this court cannot consider it, or the facts therein recited, for that reason. This is undoubtedly the general rule, but the record in this case, contains the certificate of the trial judge referring to and identifying the defendant’s affidavit, and-clearly, as we think, makes it as much a part of the record in the case as his own statement. In his certificate the trial judge docs not recite' the facts [229]*229stated in the affidavit, but refers this court to the affidavit itself for the facts set forth, and we think it would be a grave injustice to the defendant to ignore, upon technical grounds, an affidavit called to- our attention by the trial judge. What inference, if any, might the jury draw from the refusal of Mrs. Cattron to'testify relating to her relations with the defendant? If the jury were warranted in drawing the inference that she Avas guilty of adultery Avitli the defendant, that, of course, Avould go to establish his guilt, and counsel for the state might properly refer in argument to any circumstances surrounding the case from which the jury might infer the guilt of the party on trial. This is one vievv of the case. Another, and Ave think a better, vieAV is that the refusal of a witness to testify, because such testimony might be used in a criminal prosecution against him or because it would subject him to humiliation and disgrace, is not a fact or circumstance Avhich. may be considered as tending to prove the guilt of the defendant on trial. The hiAV is plain that a witness need not give testimony which would tend in any degree to prove him guilty of a criminal offense or Avhich would subject him to humiliation and disgrace. The exercise of this privilege on his part cannot, Ave think, in any legitimate degree be considered as tending to prove the guilt of the party on trial. Let us see what the result of any other rule would be? Tavo parties, man and Avife, seek to establish the charge of adultery with the Avife against another. The Avife is put upon the stand to prove the charge. She is told of the privilege which the law extends to her of refusing to testify. She claims that privilege, knowing Avell that she could not truthfully testify to the guilt of the defendant. Can it be said that the laAV would sanction in this way the conviction of a man, not upon statements of fact testified to by a witness, but upon the refusal of the witness to state any facts? The law will not be so unjust as to impute guilt to one upon trial because a witness called by the state refuses to give evidence upon a question Avhich might or might not be used against him. We think that no inference against the inno[230]*230cence of the defendant conld be drawn, or should be allowed, from the refusal of Mrs. Cattron to testify upon the question of the relations existing between them. This being the ease; that circumstance should not have been referred to by the county attorney in his argument; and the only question remaining is, did the admonition of the judge and his instructions to the jury to disregard the argument, and not to allow the refusal of Mrs. Cattron to testify to influence them against the defendant, cure the error? The general rule appears to be that, unless the appellate court is satisfied that prejudice to the defendant resulted from misconduct of counsel in the argument of the case, it does not constitute reversible error. See extended note to People v. Fielding, 158 N. Y. 512, 16 L. R. A. 641.
In the present case the testimony tending to show the guilt of the defendant is not of a satisfactory character. The husband of Mrs. Cattron, it is true, testifies that on the night of the 18th of May, 1901, he was aroused from his sleep about 11 o’clock, and went to the rear of his house and looked out through a glass door in the kitchen, and saw the defendant and his wife in the act of sexual intercourse. He immediately returned and went back to bed. He said nothing of it to anyone. He made no complaint. There were trees and shrubbery in his back yard. There were no lights nearer than, about 60 feet from where he claims to have seen the parties. The jury might, well have doubted his ability to recognize them, and doubted his unusual and unnatural conduct if he did — conduct that cannot be understood or explained in the ordinary man. A week or ten days after this, Cattron and the defendant had some trouble in Cattron’s livery barn growing out of the claimed intimacy between the defendant and Mrs. Cattron. Two witnesses were called by the state to prove admissions made by the defendant during and shortly after that trouble, but the court ruled out these admissions, upon the ground that serious threats had been made against the defendant and that his statements were ma.de under such circumstances as to annul their force as evidence. Two of these witnesses [231]*231testified upon the preliminary hearing, giving the defendant’s admissions as they understood them on that trial.
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Duffie, C.
An information was filed against the plaintiff in error charging him with adultery with one Maud Oattron, the wife of William Oattron, who was the complaining witness in this case. On the trial Maud Oattron was called as a witness by the state. Being examined by the county attorney, she stated that she was the wife of William Oat-tron, the complaining witness, and had been acquainted with the defendant for about seven years. She further testified that she had seen the defendant on the 18th of May, 1904, both at her own house and at her husband’s livery barn. She was then asked to state to the jury what took place between Mr. Powers and herself on or about the 18th [228]*228of May, 1904, and replied that she did not care to answer, and claimed her privilege not to testify. Her claim of privilege was sustained by the court, and she was dismissed from the stand. In his argument to the jury the county attorney called attention to the refusal of Mrs. Cattron to testify, in the following language: “I call vonr attention to the witness that comes on the witness stand and hides behind her constitutional privilege and exemptions. You would be justified as taking that as a confession of her guilt.” Exceptions were immediately taken to this line of argument by the attorneys for defendant, but the presiding judge being absent in his private room preparing his instructions to the jury, no immediate ruling of the court could be had until the reporter informed the judge that objection was being taken to the line of argument pursued by the county attorney, whereupon he immediately returned to the bench, when that part of the argument objected to was stated in his presence by counsel for the defendant, and the court thereupon stated to the county attorney that he should desist from pursuing that line of argument, and he orally charged the jury that they should pay no attention to the fact that the witness, Maud Cat-tron, had claimed her constitutional and statutory right to refuse to testify, or the reference to such fact made by the county attorney, and that such failure on her part to testify should not be taken against the defendant.
The facts above stated are shown by an affidavit filed by the defendant in support of his motion for a new trial, as well also as a record entry made and certified by the trial judge and attached to the bill of exceptions. The defendant’s affidavit is not included in the bill of exceptions, and it is objected that this court cannot consider it, or the facts therein recited, for that reason. This is undoubtedly the general rule, but the record in this case, contains the certificate of the trial judge referring to and identifying the defendant’s affidavit, and-clearly, as we think, makes it as much a part of the record in the case as his own statement. In his certificate the trial judge docs not recite' the facts [229]*229stated in the affidavit, but refers this court to the affidavit itself for the facts set forth, and we think it would be a grave injustice to the defendant to ignore, upon technical grounds, an affidavit called to- our attention by the trial judge. What inference, if any, might the jury draw from the refusal of Mrs. Cattron to'testify relating to her relations with the defendant? If the jury were warranted in drawing the inference that she Avas guilty of adultery Avitli the defendant, that, of course, Avould go to establish his guilt, and counsel for the state might properly refer in argument to any circumstances surrounding the case from which the jury might infer the guilt of the party on trial. This is one vievv of the case. Another, and Ave think a better, vieAV is that the refusal of a witness to testify, because such testimony might be used in a criminal prosecution against him or because it would subject him to humiliation and disgrace, is not a fact or circumstance Avhich. may be considered as tending to prove the guilt of the defendant on trial. The hiAV is plain that a witness need not give testimony which would tend in any degree to prove him guilty of a criminal offense or Avhich would subject him to humiliation and disgrace. The exercise of this privilege on his part cannot, Ave think, in any legitimate degree be considered as tending to prove the guilt of the party on trial. Let us see what the result of any other rule would be? Tavo parties, man and Avife, seek to establish the charge of adultery with the Avife against another. The Avife is put upon the stand to prove the charge. She is told of the privilege which the law extends to her of refusing to testify. She claims that privilege, knowing Avell that she could not truthfully testify to the guilt of the defendant. Can it be said that the laAV would sanction in this way the conviction of a man, not upon statements of fact testified to by a witness, but upon the refusal of the witness to state any facts? The law will not be so unjust as to impute guilt to one upon trial because a witness called by the state refuses to give evidence upon a question Avhich might or might not be used against him. We think that no inference against the inno[230]*230cence of the defendant conld be drawn, or should be allowed, from the refusal of Mrs. Cattron to testify upon the question of the relations existing between them. This being the ease; that circumstance should not have been referred to by the county attorney in his argument; and the only question remaining is, did the admonition of the judge and his instructions to the jury to disregard the argument, and not to allow the refusal of Mrs. Cattron to testify to influence them against the defendant, cure the error? The general rule appears to be that, unless the appellate court is satisfied that prejudice to the defendant resulted from misconduct of counsel in the argument of the case, it does not constitute reversible error. See extended note to People v. Fielding, 158 N. Y. 512, 16 L. R. A. 641.
In the present case the testimony tending to show the guilt of the defendant is not of a satisfactory character. The husband of Mrs. Cattron, it is true, testifies that on the night of the 18th of May, 1901, he was aroused from his sleep about 11 o’clock, and went to the rear of his house and looked out through a glass door in the kitchen, and saw the defendant and his wife in the act of sexual intercourse. He immediately returned and went back to bed. He said nothing of it to anyone. He made no complaint. There were trees and shrubbery in his back yard. There were no lights nearer than, about 60 feet from where he claims to have seen the parties. The jury might, well have doubted his ability to recognize them, and doubted his unusual and unnatural conduct if he did — conduct that cannot be understood or explained in the ordinary man. A week or ten days after this, Cattron and the defendant had some trouble in Cattron’s livery barn growing out of the claimed intimacy between the defendant and Mrs. Cattron. Two witnesses were called by the state to prove admissions made by the defendant during and shortly after that trouble, but the court ruled out these admissions, upon the ground that serious threats had been made against the defendant and that his statements were ma.de under such circumstances as to annul their force as evidence. Two of these witnesses [231]*231testified upon the preliminary hearing, giving the defendant’s admissions as they understood them on that trial. Shortly before his trial in the district court the defendant had a conversation with these witnesses relating to their testimony on his preliminary examination, in which he claimed that they were mistaken in the statements made by him, and in which they asserted that they Avere not mistaken, that their testimony to the effect that he had admitted being sexually intimate with Mrs. Cattron was true. The court alioAved these later conversations to be given to the jury. If, as held by the trial court, the defendant’s statements relating to his intimacy with Mrs. Cattron, made on the 25th of May, 1904, were made under such circumstances of apparent peril and bodily danger as to make them inadmissible, it is quite evident that declarations of the witnesses made to the defendant at a later date, to the effect that he did make such admissions, ought not to be used against him. But a more serious objection than this exists. This admission, claimed to have been made by the defendant, was not testified under oath by the Avitnesses. They testified only that, in a talk they had Avith the defendant at a time when they were not under oath, they told him he admitted that he had been criminally intimate with the woman. This is not SAVorn testimony and cannot be used to support a verdict. The testimony of the husband and of these two witnesses in this later conversation, to which we have referred, is the only evidence of guilt upon which the verdict rests, and Ave incline to the belief that the jury must have been largely influenced by their attention being called to the refusal of Mrs. Cattron to testify, and the argument of the county attorney based thereon that this should be taken as a confession of her guilt.
We think also that this case comes within the rule adopted in Palin v. State, 38 Neb. 862. In tliat case, as in this, the trial judge was absent from the court room Avhen the statements objected to took place, but immediately returned to the bench and admonished the attorney to keep Avithin the record, and the attorney himself stated to the [232]*232jury that, if he was mistaken, he desired that they should pay no attention to his statements. Under these facts it was said:
“Considerable latitude should always be allowed counsel in the discussion of facts before the jury; but an attorney, and especially a prosecutor in a criminal trial, has no right in arguing a case, to state as a fact any matter not borne out by the testimony. The argument in this case was clearly beyond legitimate bounds and was highly prejudicial to the accused. The trial judge likewise erred in permitting the argument to be made while he was absent from the court room.”
It often occurs that the trial judge, by consent of the parties, retires to his private room during argument of counsel to prepare his instructions. In such case it would undoubtedly be held that the parties have waived his presence, and that his absence from the court room during the argument, under such circumstances, would not be reversible error; but we think the better rule, especially in criminal cases, is for the judge to be present during the whole trial, and that, if he absents himself without the consent of the defendant on trial, it is error which may call for a reversal of the case.
Upon these grounds, we base our decision that the judgment should be reversed and the cause remanded for another trial.
Albert and Jackson, CC., concur.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for another trial.
Reversed.