Opinion by
Mr. Chief Justice McBride.
1. The persistent attempt of the state to force upon the attention of the jury evidence which the court had excluded, constituted reversible error: Long v. State, 56 Ind. 182 (26 Am. Rep. 19); Randall v. State, 132 Ind. 539 (32 N. E. 305); McAdory v. State, 62 Ala. 154; People v. Mitchell, 62 Cal. 411; Berry v. State, 10 Ga. 511; Fox v. People, 95 Ill. 71; People v. Dane, 59 Mich. 550 (26 N. W. 781); Fuller v. State, 30 Tex. App. 559 (17 S. W. 1108); United States v. Cross, 19 D. C. 562; Leahy v. State, 31 Neb. 566 (48 N. W. 390); People v. Fielding, 158 N. Y. 542 (53 N. E. 497, 70 Am. St. Rep. 495, 46 L. R. A. 641); People v. Valliere, 127 Cal. 66 (59 Pac. 295); People v. Derbert, 138 Cal. 467 (71 Pac. 564); State v. Rader, 62 Or. 37 (124 Pac. 195). It is true that in this case, as in several of the cases cited, the court directed the jury to disregard the objectionable remarks; but they were deliberately injected into the case, and it is impossible for us to say that they made no impression on the minds of the jurors, or to judge as to whether or not the court’s [474]*474well-meant endeavor to “unscramble tbe egg” was successful.
2. While cautionary instructions are usually in the discretion of the court, there may be circumstances rendering them imperatively necessary, and we think such was the case here. The memorial introduced in evidence tends to show that at least 170 persons in that town of 1,000 or 1,500 inhabitants had a strong prejudice against the defendant, and a more or less fixed opinion as to his guilt. This would or might naturally filter into the minds of jurors attending the court and insensibly tend to prejudice them against the defendant. It was .asking nothing more than what was fair and just to the defendant that the jury should be cautioned against allowing prejudice or sentiment to influence its verdict, and the instruction should have been given. This is one of those instances adverted to in State v. Megorden, 49 Or. 259 (88 Pac. 306, 14 Ann. Cas. 130), where “the circumstances of the case made them necessary.”
For these reasons, the judgment is reversed and a new trial granted. Reversed and Remanded.
Me. Justice Bean, Mr. Justice Eakin and Mr. Justice McNaey concur. Free access — add to your briefcase to read the full text and ask questions with AI