tion in this matter in the record, and therefore overrule defendant’s assignment of error upon this point.
Another error assigned relates to the refusal of the district court, on request of defendant’s counsel so to do, to interpose and stop a certain line of remarks which were made by the district attorney to the jury in opening the case for the territory. We have carefully examined the record bearing upon this point, and are satisfied that the language of the district attorney did not transcend the bounds of either law or propriety, and that the rerefusal of the court to intervene was not error.
We shall notice but one exception to the charge of the court to the jury, namely, defendant’s fifteenth exception to the charge, which reads as follows: ‘There is no person in this case that tempts to speak of the killing of this man, except two—I mean, as to the direct, positive testimony. Those are the man Dinan and the man Brown. In considering the evidence of Dinan you are to take into consideration all the facts and circumstances of the case, so far as you can—his history; his appearance upon the stand; every element in his character as touching upon his honesty, upon his truthfulness; whether or not, in the past, he has been convicted of crime; whether or not he has been punished; whether or not he has been reformed; whether or not he has been leading an honest life at the time of this transaction. All of these are matters to be considered for the purpose of enabling you to say whether or not, when he testifies in this case, he is telling the truth, or whether he is testifying from motives of revenge, or what his motives are. What is said of him would be true of any other witness. It appears in the case that he was at one time in the penitentiary in Missouri, as he says to you. About all that is known of his former history is what he gives himself; but he tells you that he has been in the penitentiary, and he tells you the crime that he was in for attempt to rob. All that you know as to whether that is true or not, or whether he was in the penitentiary, or the length of time, is his own statement. In considering the testimony of a person who has been convicted of a crime you should take into account his character, the crime of which he is charged, and the object of the law in convicting men, which is, in the first place, to protect society, and
