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People v. Most

7 N.Y. Crim. 376 Court Supreme Court—General Term—First Department English

Delivered by *389 Macomber, J.

Contents

Majority

p. 376
Supreme Court—General Term—First Department
January, 1890.
PEOPLE v. MOST.

Headnote

Unlawful Assembly.—Penal Code, § 451, sued. 3.— Attempting to introduce Improper Evidence.
Defendant addressed a meeting of anarchists in New York, eulogizing the persons executed in Chicago for the murder of certain policemen and citizens, accusing the jury of bribery, and calling the trial judge, the appellate judges, and the governor of Illinois who refused to pardon the convicted men, murderers, saying that the day of revolution was approaching, and that his hearers should be ready to resist and kill the hirelings of the capitalists ; that they had a weapon a hundred-fold worse than the soldiers or police; that “they think they have killed five of our brethren,” but that they (the anarchists) would have a hundred or five hundred for every one they have murdered. Meld, that this glorification of these deeds of the criminals, and incitement to murder of public officers for their discharge of public duty brought the case directly within the letter and spirit of section 451 of the Penal Code, subdivision 8, providing penalties for an unlawful assembly.
A new trial will not be granted on appeal because at the trial the prosecuting officer made persistent efforts to introduce evidence alleged to be improper, where the trial judge excluded such evidence, and properly charged the jury on the facts proved.
Nor will a new trial be granted, because, as is alleged, the court erred in permitting the district attorney to tell the jury that they could not believe the defendant and his witnesses because they did not believe in a Supreme Being, where the case does not show that any such argument was made to the jury, or that defendant’s counsel objected to anything which was said to them in regard to the credibility of the several witnesses.
Appeal by the defendant, John Most, from a judgment entered in the Court of General Sessions of the city and.
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county of New York, Hon. Eufus B. Cowing presiding, of December 8,1887, upon a conviction of the defendant, under section 451, subdivision 3, of the Penal Code, of unlawful assembly.
The indictment against defendant charged (omitting the formal parts) that defendant, “ being an evil-disposed and pernicious person and of most wicked and turbulent disposition, together with divers other evil-disposed and pernicious persons to the number of fifty and upwards, unlawfully, wickedly and maliciously intending and contriving to disturb the public peace, and to excite discontent and disaffection, and tor excite the good citizens of our said State’ and of the United States to hatred and contempt of the government and Constitution of this State and of the United States, and to raise and make insurrections, riots, routs, and unlawful assemblies within this State and throughout the United States, and to obstruct the laws and government thereof, and to oppose and prevent their due execution with force and arms, did unlawfully, wickedly, turbulently, and maliciously assemble and gather together; and being so then and there assembled and gathered together as aforesaid, the said John Most, and the said other evil-disposed and pernicious persons did then and there unlawfully, wickedly, turbulently, and maliciously threaten to raise, riots, routs, and unlawful assembly within our said State and throughout the United States, and to kill and murder divers of the good citizens of the United States, and to obstruct the laws and government thereof and of this State, and to oppose and prevent their due execution, and to procure and obtain arms, ammunition, weapons, and the means wherewith and whereby to execute and consummate their most wicked and unlawful threats, against the form of the statute,53 etc.
The testimony of the witnesses of the prosecution and that of those of the defendant was in direct conflict, except that the witnesses all agree that Most eulogized the con
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demned Chicago murderers, and declared that they had been unjustly convicted and executed.
The audience addressed by Most consisted of seventy-five or eighty persons, a part of whom were anarchists, a part sympathizers, and a part persons attending out of curiosity.
On his direct-examination Most testified that he had spoken as follows: “Fellow-citizens: I suppose you read in the newspapers of to-day and yesterday what is going on in this city and all over the United States. The Mayor of New York was talking about taking away free speech—was talking about the late procession in the streets of New York” (referring to a procession in memory of the executed anarchists), “ and said that such a procession should not have been allowed. You read in the newspapers that free speech should be—at least for us—stopped altogether. Now, you see, Reaction has put its power upon us. It looks to me as if our enemies, the capitalists and their hirelings, do not want to hear any more what we have got to say. It looks to me as if they were not able to argue with us, and so they use the weapon they have got in their power to shut our mouths. Nevertheless, if they don’t like to listen to us—if they don’t want that we speak publicly—we will agitate privately, and will spread our doctrine just the same as we did now. But it will be their own fault if they don’t know what our aspirations are—what our ideas are— and one day they will regret that they did shut up us to agitate in a private manner. Now, you know what occurred at Chicago yesterday, and I don’t think I could speak about anything else but about that, even. Four of our comrades have been murdered there. Another one has been driven to suicide; because they spoke and wrote for the workingmen. They published articles and delivered speeches in public for nothing. For nothing but that; for nothing but speaking and writing. They claimed that one of these friends of ours did throw a bomb. You know that is not true. Nobody did prove that. And everybody knows
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it, that none of them did throw the bomb—that none of them committed any crime. They were convicted by the hatred of the capitalists. They were convicted by class hatred, and they were hanged by the class hatred. They were murdered—slaughtered—and I regard that hanging of Chicago as the most terrible crime ever committed in modern times. I think,” said the witness, “ it was at that moment when somebody cried, 6 Revenge! ’ I said, 6 Keep quiet; don’t talk about revenge; it is not time yet; it is not proper to talk about revenge; our enemy is mighty, our enemy is powerful, and our enemy is looking after other victims. Therefore”—(it might have been in some other words still)—“ therefore let us beware! I am not here tonight to talk about revenge—to advise you to do this or that. I am here to accuse those who are guilty of murder at Chicago. There is not only Grinnell. There is not only Gary. There are not only these twelve so-called jurymen, who disgraced themselves by rendering a verdict of guilty. There are not only the judges of the Supreme Court of Illinois; not only the judges of the Supreme Court of Washington, I am to accuse of that crime. No, I go further on. I say there are many jurymen; there is many workingmen, to be accused of that crime, too. There is, for instance” (I said so), “that scoundrel Powderly, who has behind him an organization of hundreds of thousands of workingmen, and if he would have used his influence in favor of our unfortunate friends of Chicago, they never would have been hung. If all these Knights of Labor would have turned out iii time to protest against this judical murder, it never would .have taken place. There is another one; his name is Henry George. I know this man is very narrow-minded; he is not a wise man, but yet he is clever enough to see so far to distinguish right from wrong, and it was his duty, too, to raise his voice in favor of our comrades, and he acted in the contrary; he used his influence as to keep his followers away from protesting. Therefore,” I said, “ these men, and more than those, old workingmen
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who did not protest against this judicial murder, will regret it, sooner or later. The time will come when the people will see through all these proceedings, and they will be convinced that these men hung at Chicago were not guiltjr, and in their sleepless nights they will hear the cry out of the graves of the dead, ‘Murder! murder!’ Well, our friends are dead now, and you know how they died. They died bravely—courageously; they went to the scaffold just as another one would go to a dancing place, or some recreation ground. There was one man, he recited the poem of Heine, ‘The Weavers;’ there was another one who sung a sweet song; others sang the ‘ Marseillaise; ’ they died crying, ‘Long live anarchy!’ One said, ‘It is the happiest moment of my life,’ when the halter was still around his neck. They died; they were strangled to death; and another one died before the hangman could get hold of him. That was our beloved friend, Louis Lingg. He was driven to suicide because they tried to make a lunatic out of him, and he couldn’t stand that. That young man did love mankind more than anything else, and his own praise was nothing to him. Even .in prison, I know it, that it was true—even in prison he spared every cent that he could to buy pamphlets and newspapers and have them distributed freely among many workingmen. So I went on for awdrile, in praising my friends, and making some comments of such kind—similar kind. I said: How they are buried, but they are not dead. They are not dead, because ideas, grand ideas, never will die with them. Oh, they are bound to spread such ideas as long as they did live. They thought, now, Anarchy is dead, because they don’t understand what Anarchy means. They have an idea, which is not more nor less than that the highest development of civilization itself can be killed by killing a few men. They are greatly mistaken. Look to history. In the year 1848, the battle of June took place at Paris; Capital and Labor were fighting each other. Labor lost the ground. Many a thousand was killed in the streets of Paris, and the cry arose, ‘ Socialism
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is no more; Socialism is dead! ’ and the cry went around the globe, and that cry was so much applauded, and everybody thought Socialism was. really dead. Even the man— such a mean fellow as Louis Napoleon was—was able to erect a throne on human bones at Paris, and he was greeted by the capitalists of all Europe as the Savior of Society; they thought he was the man, with his strong governing hand, to crush Socialism, and to keep it down, and make sure that Socialism must not rise again. Now, only a few years passed by and there was the Paris Commune—there was the Paris Commune, which showed the world that Socialism still lives. However many the soldiers at the battle of June, at Paris, were killed, and who were buried at Paris, out. of their bones sprang up others who did spread the same doctrine, because they were bound to do so; because Socialism is not the make of some man. Socialism is the result of Capitalism; Socialism is the natural outgrowth of our present system. The Commune battle went on. The Commune battle was lost at last by the workingmen, and again they cried, < Communism is no more; the Commune is dead!s and they were very glad to hear that. But I said, Nowr go over to France; go to Paris, all around France—more than that, all around Europe; travel around the globe and you will see that there are more Communists now in the world than there were then, when the Commune •of Paris was killed by the Soldiers of Reaction. Now, I said, it remained for these—I think it was cHog Butchers and Sausage Kings/ or something like that—to proclaim that Anarchism, Socialism, and Communism is dead, because four men have been strangled. If they would know anything about history, they would be convinced at once that they are very greatly mistaken. True enough, they are mighty; they are powerful; they got the police; they got many means to keep the people down; but there is something supreme; there is something more powerful, and that is our idea—our idea which never can be, and never shall be, killed by any means. Now, I said, I call attention
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to the brave conduct of our friends of Chicago. I think that it is our duty to carry on the same teaching as they did—to spread the doctrines for which they died, and that vt'ill he the most noble—the most impressive—revenge we can take.”
“I think that is about all I can remember, up to that moment. ”
The Ooubt.—Make any suggestions, Mr. Howe, which you feel inclined to make, to draw his attention to anything you desire.
Mr. Howe.—Thank your Honor.
The Witness.—Well, I can make another statement. I said: “ They think the gallows are terrible for us, but it will turn out that the gallows in the future will be respected by us, just the same as the Cross was respected by the Christians of former times.
Q. In that connection, what said you, if anything, about liking to see the hangman of Chicago ? Just give us your exact language, as near as you can remember it.
A. I heard that word mentioned, and I don’t know exactly whether I said so or not, because there is not much sense in it. I don’t know why I should like to see such a mean fellow.
Q. Some of your witnesses—
A. (Interposing). It might be; perhaps I did; and if it is necessary, and if it is something, I don’t care whether I said so or not. It may be that I said so.
Q. Some of your witnesses have said that you did, and the police give it in a different way?
A. I don’t care.
Q. They say that yon said—and you heard Mr. Hicoll, in his opening speech to the jury—
A. (Interposing). I don’t care about that.
Q. (Continuing). That you wished to have that executioner here—that you would “ strangle him to-night.” The officers did not come up to that opening of Mr. Hicoll, but
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they say you said you wished you had him; that you would give ten years of your life to see him.
A. It might be, but I don’^t see any sense in that. I don’t think that I did use such nonsense.
Q. Did you say, in substance, that if you saw him you would give .some ten years of your life, or would give ten years of your life to see him ; did you say something to that effect ?
A. Well, I said—it may be; I don’t decline it.
Q. Ton don’t know who the executioner at Chicago was ?
A. Ho, I don’t.
Q. You wouldn’t know him if you were to meet him now ?
A. Ho, of course not; I wouldn’t like to see him, neither.
Q. You don’t mean, by that, that you would do him any personal violence, do you ?
A. Ho ; I never did any.
Q. You never lifted your hand against any person, did you?
A. I didn’t.
Q. In speaking, then, of the weapon which you had, yon referred to the dissemination of your ideas ?
A. Yes, sir.
Q. And you spoke of these workingmen, Powderly and George, whom you thought as bad as the men who executed the Chicago anarchists, because if they had exerted the influence which yon thought they had at their command, your idea was that by the remonstrance of numbers, the execution would have been frustrated ?
Q. Was that your idea ?
Q. How, as to the hvdra-headed body—the five hundred succeeding one—you almost gave it in another figure ?
A. Oh, yes, I said something like it.
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Q. What was it ?
A. I said—it is a very common phrase with us—“ For every one whom they take or kill and imprison, five hundred or a thousand will spring up and take their places.” .
Q. That is it; you didn’t say, as one of the policemen tried to make yon say, that for every man they killed you would kill five hundred ?
A. RTo, I wouldn’t, because it would be very silly to say ■so at a public meeting.
The assistant district-attorney sought to prove by defendant’s witnesses that they had read a book written by Most entitled “ The Art of Revolutionary Warfare,” but all his questions on that subject were ruled out by the trial judge.
Upon ths cross-examination of defendant the following •evidence was given on this subject:
Mr. Niooll, assistant district-attorney.—Are you not the author of a book entitled, “ The Art of Revolutionary Warefare?” . . .
The Court.—He declines to answer, on the ground that it might criminate him.
Mr. NicolJ,.—He declines to answer whether he is the author of that book on the ground that it tends to criminate him ?
The Court.—On the ground that his answer might criminate him.
Q. Are you not the author of a book advocating the use of explosives, dynamite, nitro-glycerine, and gun-cotton for destroying persons and property ?
A. Well, your Honor (to the Court), how often will that occur—that it comes on ? I decline to answer that question.
Q. On what ground ?
A. Well, on the same ground.
Q. On the ground that it will tend to criminate you?
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A. Anyhow, to prejudice the jury, and that is your purpose, I guess.
The Court (to witness).—You need not answer, but you must put your refusal on the ground that it might criminate you.
A. I answer that on the same ground as the other. I answered that first on the same ground.
* *-»*«•*
Q. Now, Mr. Most, I ask you whether or not you have not written, and it is not your belief that there is a need in the social revolution of what are known as modern explosives ?
A. I decline to answer the question.
Q. I ask you whether or not it is not your belief and jou have not written that—“ Modern explosives will form ■a decisive element in the next&epoch of the World’s history ?”
Mr. Howe (to the witness).—I advise you not to answer, •on the ground that your answer may criminate you.
A. I don’t answer it.
By the Court.—Q. On the ground that your answer may tend to criminate you ?
A. Yes.
By Mr. Nieoll.—Q. I ask whether or not you have not advised others in writing as to the cheapest and easiest method of manufacturing explosives ?
A. I decline to answer your question.
Q. I ask you whether or not you have not advised others as to the simplest methods for manufacturing explosives, and explained to them their use and effect ?
A. I decline to answer that question.
Q. On the same ground ?
A. Sure.
Q. I ask you whether or not you have not advised other people in important undertakings to procure the best quality •of fuse, and guard it against moisture by soaking it in tal
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low or incasing it in rubber? Do you decline to answer on the same ground ?
A. Yes, sir.
Q. I ask you whether or not you have not advised other people that when they desired to make an explosion from a distance “a wire and electric battery is preferable, but if only a few minutes are desired to get away, six or eight inches of fuse will answer ?”
A. I don’t know what is on trial—that explosive business, or what.
Q. Do you decline to answer that question ?
A. Yes.
Q. On the ground that it will tend to criminate you ?
A. Yes, and to prejudice the jury.
Q. And on the ground that it will criminate you ?
Q. I ask you whether you have not advised other people “ where dynamite is proposed to be exploded among a number of persons, ‘ the stronger the shell the more splendid are the results ’ ” ?
Q. Mr. Most, I ask you whether or not you have advised other people that—11 the best shape for a bomb is globular,, as furnishing equal resistance and producing the same explosive effect in all directions?
A. Decline.
Q. You decline to answer on the same ground?
Q. I ask you whether or not you have not advised people that there is another method for explosives, for the same purposes, consisting of a piece of gas or water pipe, a few inches long with a screw on either end, and covered with a screw cap, and that such missiles are easily manufactured,, and against, a crowd will produce brilliant effect ?
A. I deline to answer, of course.
Q. On the same ground ?
Q. I ask you whether or not you have not advised other
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people in writing that—“ In attacking buildings, unless- the dynamite can be introduced into chimneys or other orifices, a considerable quantity must be used to shake the building, or bring it down.”
A. How long will that go on ? I decline.
Q. I ask you whether or not you have not advised other people in writing—
A. (Interrupting). I never heard such a proceeding.,
Q. (Continuing), that—“ For ordinary buildings nothing less than ten pounds will, and for massive buildings, barracks, churches, etcetera, forty or fifty pounds may be required, and even then will not be effective unless skillfully placed ?”
A. How, I am getting sick of it.
Q. Do you decline to answer ?
A. I decline.
Q. Have you not advised people as to the best method of thawing dynamite ?
A, (Interrupting). Hot on the night of the 12th of Hovember, at Kraemer’s Hall, sir.
Q. (Continuing). Have you not advised people in writing that66 To thaw dynamite, which freezes very easily, the best plan is to put the dynamite in a waterproof vessel into a larger one containing water. Frozen dynamite is dangerous when ignited, and may fail to explode if special pains are not taken ?”
A. Hothing was, explained of that kind on the 12th of Hovember at Kraemer’s Hall.
Q. Have you so advised people?
A. Otherwise I decline to answer.
Q. Do you decline to answer on the same ground ?
A. Yes.
Q. I ask you whether you have not advised—“ Revolutionists cannot manufacture dynamite cannon (which are about forty feeet long), but they can make bombs and use ordinary slings. That what reduces what had been solid rocks into splinters may not have had a bad effect in a court or monopolists’ ball room ?
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Q. Have you advised people to this effect: “ To take a tin fruit jar and to remove the cover; cut a hole in the center of the cover, into which insert a medicine glass; then re-solder the cover; pour in benzine; fill the medicine glass with gunpowder, and close with a stopper, passing a fuse through the stopper; light the fuse; the result is, after a time, the explosion of the powder, bursting the can and scattering the benzine blazing in .every direction.” Have you advised people to that effect?
A. I decline.
Q. I have two more questions of this kind that I desire to put. Have you not, in writing, advised people to this effect, that “ There may be cases in which the Revolutionist must abandon shelter and sacrifice his own life in the warfare against the property-owning beast of society; but no Revolutionist should unnecessarily endanger his own life. An unknown danger is more terrible. Therefore Revolutionists should act singly or in as small numbers as possible ?”
A. Decline.
Q. I ask you whether you have not advised people to this effect: “The best substance for poisoning arrows is curari, used by South American Indians on their arrows. It is absolutely fatal, but high priced ?”
A. I decline to answer.
Q. Have you advised this: “ A dagger red hot and hardened in a decoction of rose laurel is fatal?”
A. Decline to answer.
All this cross-examination of defendant was duly objected to and exceptions taken by his counsel.
The defendant, having been convicted, appealed to the General Term.
Howe (& Hummel, for defendant, appellant.
Jno. B. Fellows, district-attorney, McKenzie Semple, assistant, for the people, respondents.

The act under which the defendant was convicted, generally known as the “ Unlawful Assemblage Act,” declares that whenever three or more persons, being assembled, attempt or threaten any act tending towards a breach of the peace, or an injury to person or property, or any unlawful act, such an assembly is unlawful, and every person participating therein, by his presence, aid or instigation, is guilty of a misdemeanor. Penal Code, § 451, subd. 3.

The offense of the defendant "was committed at Kraemer’s Hall, on the 12th day of ¡November, 1887, where there was an assemblage of eighty or a hundred persons who had met to protest against the execution of Spies, Parsons, Engel, and Fischer, in Chicago, for the murder, by means of dynamite bombs and explosives, of a number of policemen there; eulogizing and extolling the character of such persons who were known as active anarchists.

Two meetings were projected of the sympathizers of the Chicago anarchists, in Hew York City, at which the defendant was expected to speak; one of them, to be held at Florence Hall, on the corner of First street and Second avenue, and the other at Kraemer’s Hall, at Ho. 134 East Seventeenth street.

The meeting at Florence Hall had been prevented by the police, and neither the defendant nor any other person made any address at that place. The defendant was the principal speaker at Kraemer’s Hall, and was aware of the fact that the meeting at Florence Hall had been prohibited and prevented by the activity of the police.

The threatened breach of the peace, which the defendant is accused of attempting, is shown by the evidence of three witnessess in behalf of the people—namely, Louis Both and John J. Sachs, police officers, and Solomon S. Dreyfuss, a newspaper reporter. The testimony of these witnessess does not differ in material matters, though there appear to be verbal and unimportant discrepancies which are sometimes

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deemed not a disparagement, but a confirmation of the integrity of the witnessess.

The testimony only of one of them, Louis Both, is necessary to be cited. This witness’ version of the address of the defendant is as follows: “He began with ‘Slaves’ —addressed the audience as ‘ Slaves.’ ‘ I have just heard that the meeting, which was to be held over our murdered brethren in Chicago, was stopped by the police hounds. Beware, you scoundrels. Hereafter our councils will be held in secret. God help them if they are found in our councils.’ The next of his remarks was with regard to the gallantry and the way they died; how they were strangled to death ; not properly hanged, and what a good cause they died for; and he was willing to die for the same cause.” Then he commenced, the witness says, “Beware you. ‘ First comes that murderer, Grinnell. Grinnell, the perjurer ! He got a jury of hired capitalists, who were well paid for their services. They say Lingg committed suicide. I say, ‘Ho, they have murdered him,’ for he was too brave a man to do such an act. The day of revolution will soon come. First of all will be Grinnell, and then comes Judge Gary, then the Supreme Court of the State of Illinois, then the highest murderers of the land—the Supreme Court of the United States ; the most cruel of all, Oglesby, the Governor of Illinois. He must not think, because he pardoned two of our brethren to a lingering death of life imprisonment, that he will be spared. Again I urge you to arm yourselves, as the day of revolution is not far off, and when it comes see that you are ready to resist and kill these hirelings of the capitalists. What do we care for a few soldiers, cannon, gatling guns, or police ? We have a weapon a hundredfold worse than theirs. They think they kill five of our brethren, but we will have an hundred or five hundred for every one they have murdered. If I but knew the executioner who murdered—who strangled—our brothers, I would never rest until he had shared the same fate.’ ”

■Mr. Grinnell, referred to in the speech of which the

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foregoing consists of extracts, was the prosecuting attorney who conducted the trial of the Chicago anarchists in behalf of the State. Hr. Gary was Judge Gary, who presided at the trial, and who sentenced the convicted anarchists. The justices of the Supreme Court of the State of Illinois were the persons who had affirmed the conviction and sentence of the trial Court. The judges of the Supreme Court of the United States had denied to the convicted persons a writ of error and supersedeas. Oglesby was the Governor of the State of Illinois, who had refused to pardon or commute the sentences of the four persons who were hanged, though he had commuted the sentences of two other of the convicted persons.

The testimony in behalf of the defendant was given by himself and eleven other persons who were present at the meeting, many of whom, though sympathizing with the speaker in the main, differed from him in certain measures designed to bring about a common purpose. This evidence, as a whole, contradicted point blank the case made by the people, and the question, consequently, was an interesting one for the consideration of the jury. The jury having found that the version of the three witnesses sworn in behalf of the people was truthful and reliable, and sufficient to sustain a conviction, the judgment cannot be disturbed, unless, as matter of law, the testimony given by them was insufficient, upon legal principles, to warrant the conviction of the defendant.

The proposition that if this evidence given by the people be true the defendant was properly convicted, is hardly denied by the learned counsel for the defendant. If true, it is plain that the words tended to incite the people assembled to unlawful acts. Coupled, as these utterances were, not only with expressions of sympathy for the fate of the Chicago anarchists, but with a glorification of their deeds, and an incitement to murder public officers for discharge of public duty, made a situation of affairs designed to be met by this law, and brought the case directly within the letter

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and the spirit of the statute under which the defendant was. indicted.

But it is claimed by the'learned counsel for the defendant that their'client was prejudiced by the conduct of the then prosecuting officer of the people, who, it is argued,, did unwarrantable acts in securing the conviction of the-defendant of such a character as w’ould justify the court in setting aside the verdict. JSTo criticism is made of the rulings of the learned judge upon the trial, nor of his impartial and clear charge to the jury. The then assistant district attorney sought to introduce in evidence a book which he claimed the defendant had written about three years previous to the trial, called “A Manual of Revolutionary Warfare.” It was offered to show that several of the witnesses of the defendant were familiar with this book, which, it was claimed,'was a description of a substance more powerful than Gatling guns aud mitrailleuses, to wit, nitroglycerine and dynamite, to which it is claimed the defendant referred in his speech at the meeting attended by the witnesses.

It probably would have been no error to have received the answers of the witnesses who were interrogated in regard thereto, but, from an abundance of caution, the learned judge at the trial did not decide such evidence material, though it had a tendency to point out specifically what the hearers understood the speaker to mean when he referred, to a substance at their command more powerful than a Gatling .gun, mitrailleuse and police. Much complaint is made in the appellant’s brief of the persistence of the then assistant district attorney in endeavoring to get this fact before the jury. The rulings, however, against the counsel for the people, were prompt, decisive, and- uniform.

It does not appear to us that a verdict in favor of the people was obtained by such undue persistence, but, from a perusal of the record, it would rather strike the mind that the conviction was obtained in spite of such repeated efforts.

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to get into the case what the trial judge early ruled to be incompetent.

It is also urged upon our attention that a new trial should be had, for the reason that the court erred in permitting the district attorney to say to the jury that they should not believe the defendant and his witnesses because they did not believe in a Supreme Being. The case does not show that the district attorney made any such argument to the jury, or that the defendant’s counsel objected to. anything which he said to them in regard to the credibility of the several witnesses.

The judgment of conviction should he affirmed.

Van Brunt, P. J., and Bartlett, J., concur.