and its decision reported to the jury, and the verdict should be rendered by this out side tribunal, if approaching unanimity, and be substituted for that of the jury. Who would be willing thus to be tried, or who would be willing for a jury to pass upon his guilt,- their minds being first tilled with the opinions of the streets, frequently manu factured by ignorance or prejudice, if not malice? This would not be a trial but a seriously solemn mockery of the same. A citizen is vouchsafed a fair and impartial trial by a jury of twelve men. Rules are given by which the jurors are tested, under oath, touching their relationship, prejudices, and opinions. When an impartial jury is impanelled, the guilt of the accused is tried under the law and evidence. The evidence consists of facts sworn to by witnesses. The witnesses must confront the accused. Hearsay evidence (facts) is not admissible; neither, a fortiori, are street opinions. The fact that there was evidence that the prose cutor was aged, and that he lost all of his money, had no connection with, nor could it justify, the allusion to outside opinions. The court should have promptly stopped the district attorney, and informed the jury that they should disregard these opinions, and try the defendant by the facts sworn to by the witnesses." In Conn v. State, 11 Tex. Ct. App. 399, the court said : " The district attorney said to the jury, 'They have severed, and Conn is put on trial, and you are told he was only a hired hand. They hope thus to clear this man, and then he is to swear his confederate clear. I tell you this is the trick.' To which the defendant objected, and asked the court to stop such statements; which was refused by the court. Continuing, the district attor ney said : ' Good men in this county, and the best men in Gonzales County, desire the conviction of this man and his partner.' To all of which the defendant objected. The court overruled the objections, remarking, ' He speaks at his peril; I will sign your bill of exceptions.'
"Collins had the right to place Conn on trial first, and if acquitted, make a witness of him. This is not only permitted by the Code, but is in perfect accord with reason and justice; and the judge should not have permitted for a moment an attack, such as the above, upon proceedings which are not only just but expressly authorized by the very Code of laws for a supposed breach of which the defendant was being tried. If to place Conn on trial first, with a view of acquittal and to make him a witness, be a trick, it is one expressly provided for by law. If Conn be guilty, the State could defeat the trick by proving his guilt, under the rules of law. This response of the judge is astonishing indeed. Considering the very obnoxious and flagrant remarks of the dis trict attorney, we cannot conceive how it were possible for any person save defendant to be in peril. That the district attorney was not is very evident from the fact that defend ant's motion for a new trial was promptly overruled. We are left to conclude from the latter part of the remark, to wit, ' I will sign your bill of exceptions,' that the danger or peril was to be from the hands of this court; if so, we are equal to the occasion; for we will not permit one accused of theft or any other offence to be convicted by such means, though all of the good, better, or best men of this State desire his conviction." In Willis v. McNeill, 57 Tex. 465, it was held error in the court to allow counsel to discuss before the jury the irrelevant ques tion of the wealth of a party, and to insist that the wealthier the parties the greater should be the amount of damages assessed against them; and that the error was not cured by the failure of opposing counsel te interpose objection at the time. The court said : — "In Thompson -v State, 43 Tex. 274, the late learned chief-justice said, 'Zeal in behalf of their clients, or desire for success, should never induce counsel in civil cases, much less those representing the State in criminal cases, to permit themselves to endeavor to
