¶1(dissenting). The prosecuting attorney, in addressing the jury in this case, made use of the following language:
“In considering a case, it is not expected that we are going to throw aside our knowledge as men, and you know that this Sunday trade is peculiar. And it is only when some person gets mad that the proof can be obtained, and because high-toned, respectable men do not go there, especially when they have to sneak in at the back door; and such as are there would sooner swear for their saloon-keeper than for their minister or their wife. You nor I never found a saloon-keeper yet who, when arrested for keeping open after hours or upon Sunday, would not go upon the witness stand and swear positively that it was not open at all, and get all the suckers he wanted to testify for him.”
¶2There had been a horse trade between one Hovey and defendant Case. The complaint was made by Hovey’s wife. She says:
“Q. You may tell the jury whether or not if this complaint would have been lodged against the men who kept the saloon if they had not injured your husband or you in a horse trade in some way.
“A. Well, I don’t know. I had threatened it all summer.
“Q. Didn’t you state to them, if they traded back horses and delivered up the note, if they didn’t do that, you would have them pulled?
*100“A. I told them, if they would bring back the horse and the $9.50 note, that I would not.
“Q. And, if they didn’t bring the horse .back and the $9.50 note, that there would be a complaint made against them?
“A. Yes, sir.
“Q. They didn’t bring 'it back?
“A. No, sir.
“Q. So the complaint was made?
“A. Yes, sir.
“The Court, to Witness: Did you say that you had been threatening to make a complaint all summer?
“A. Yes, sir.
“Mr. Watson: You went down there after your husband came home drunk on this Sunday? You say you had been threatening to have them arrested for selling him liquor?
“A. Yes, sir.
“Q. You went down after he came home drunk on Sunday?
“A. Yes, sir.
“Q. And saw West?
“A. No, sir; Shelp.
“Q. And had a conversation with him? Now, what was that conversation?
“A. I called him out, and I told him that that horse trade and liquor had made quite a bit of trouble, and I was going to make it better or worse, and wanted them to have the horse back there the next morning and the $9.50 note, or. I would have them arrested for selling liquor on Sunday. He said he didn’t know, and I says, ‘You did no longer ago than last Sunday,’ and he said they would not do it again.”
¶3Shelp denies this. The only other witness called by the people was the husband, who, upon the examination before the justice, had testified that himself, both of the proprietors, and seven other persons, naming them, were in the saloon on the Sunday in question. He also stated that, before the complaint was made, his wife had threatened to have defendants arrested because of the horse trade, and that “she told me that she had told Case, if he did not return the horse, she would pull the saloon.” On the trial in the circuit, both proprietors *101testified that the saloon was not open on the Sunday in question, and each of the seven persons testified that he was not in the saloon on that day. There was absolutely nothing brought out upon the trial affecting the credibility of a number, if any, of these witnesses. In view of the testimony tending to show a motive for the complaint, the character of the people’s principal witness, and the testimony of nine persons contradicting the people’s principal witness on the material point in the case, it is inconceivable that the defendants should be found guilty, unless the jury were influenced by the prosecuting attorney’s remarks, which were without support in the record. So far as the witness Hovey was; concerned, in view of the animus of the complaint, the most reasonable theory was that he did not tell the truth at the preliminary examination.
¶4I think that, upon this record, defendants should be granted a new trial.