¶1delivered the opinion of the court.
¶2In the closing argument for the state, the district attorney used this language:. “Gentlemen, you have the pcnuer to bring in a verdict of guilty as charged, and fix the punishment of defendant at life imprisonment in the state penitentiary; but you have not the right to do it under the facts in this case, just as I have the power to slap an infant child down, but I have not the right to do it;” and, “I am becoming wedded to capital punishment. I will never accept another sentence of life imprisonment where the evidence shows the man to be guilty of cold-blooded murder. I am getting tired of penitentiaries. There is no use to send a man there. You can send a man to the penitentiary for life, and he will only stay there a short while, and be pardoned; and a dead man can’t get pardoned.” This language invokes *627lex talionis, and while, the law of this state is not so harsh and near so vindicative as the learned and eloquent district attorney would like, we cannot say that the lurid language of the advocate contributed to the conviction of this defendant. It may reasonably be maintained that intemperate speech reacts to the confusion of the speaker quite as frequently as it prejudices the cause of the person against whom it is fulminated.
¶3It will be observed that the district attorney, inferentially, is pleased to assume the prerogative of criticising another department of the state government; but as this involves a question of official propriety, quite aside from the rights of the defendant, we refrain from volunteering any views concerning that feature of his remarks. Great latitude should be given by the courts to attorneys in the argument of cases, but the remarks complained of can scarcely be considered as argument. The legislature has, in capital cases, conferred upon juries the discretion of fixing the punishment by the form of their verdict. The district attorney challenges the right of the jury to exercise its legal, power, and, of course, the jury have the same right to dictate to the learned prosecuting officer when and how he shall exercise the powers and privileges conferred upon him by the laws of the state. In other words; there is nothing in the duties or powers of the district attorney, when arguing the facts and law to a petit jury,'which authorizes him to assume the role of general adviser of the jury upon matters peculiarly within the discretion of the jury.
¶4No self-respecting judge would permit a prosecuting officer to lecture him as to his right to fix the punishment within lawful limits, and in the present instance the trial judge should have interposed to protect the jury and the defendant from the attorney’s assumption of privileges the law gives to the jury alone. The remarks made by the district attorney in the present case are of a type, and the records of this court are frequently burdened *628with exceptions of the sort now before us, and we take this method of advising trial judges of the views of the court.
¶5Affirmed.