point, and this absence of action by the court is assigned as error. Regarding the failure to rule as equivalent to denying the motion, it follows that, if the statement was improper, the point made must be sustained. The diligence of learned counsel has been awarded with the citation of numerous cases upon this question. The citations are all of comparative recent date, as the question is one of the refinements of the law that has but recently developed into its present proportions. That the rules announced in these cases are in the interests of fairness and justice, and that they should be implicitly, enforced in all proper instances, cannot for a moment be doubted; but they should not be indiscriminately extended. Counsel must have some latitude and some discretion. In the heat of mist pris trials, where questions are raised that must be instantly met, counsel cannot be expected to weigh with nicety and precision the effect of their words. This matter must, of necessity, rest largely in the discretion of the court, and abuse of that discretion is not to be rashly presumed. We are in full accord with the language of the learned Supreme Court of the State of Indiana, that “when the statement is a general one, and of a character not likely to prejudice the cause of the accused in the minds of honest men of fair intelligence, the failure of the court to check counsel should not be deemed such an abuse of discretion as to require a reversal.” Combs v. State, 75 Ind. 215. And more emphatically would this be true where, as in this case, the remarks were addressed to the court, and were entirely pertinent and proper for the court to hear; and, while in the presence of the jury, yet in no sense directed to them, or intended to influence them. No case cited by counsel would warrant us in sustaining his point. The cases will be found to fall almost without exception into one of three classes. By far the largest class are cases where counsel have violated some express statutory provision, such as referring in argument to the jury to the fact that a defendant in a criminal case failed to be sworn as a witness, or by referring on a second trial to the fact of a former conviction. In these cases a reversal is, of course, imperative. In other cases
