¶1(concurring). I concur in the judgment of reversal on the ground that the testimony of witness Westmoreland was incompetent, and that the court erred in admitting it over appellant’s objection, but I can not agree with the other judges in the conclusion that the remarks of the prosecuting attorney constituted prejudicial error which also calls for a reversal.
¶2The very intemperate remarks of the prosecuting attorney were, of course, highly improper and can not be accounted for on any ground other than the excitement of the occasion, but they constituted, after all a mere expression of the opinion of that officer, and I can not conceive of any impression being made on the minds of an intelligent jury calculated to result in prejudice to the rights of .appellant. We should not reverse judgments for mere irregularities in the proceedings, nor even for errors, however gross, unless it is probable that some prejudicial effect resulted.
¶3I think the court is now taking a backward step in the trend of its decisions in declaring that the remark of the prosecuting attorney, which merely expressed his opinion as to the duty of the jurors in this class of cases, calls for a reversal of the judgment.
¶4I concur, as before stated, in the judgment of reversal, but wish to. express my disapproval of the ruling of the court in declaring the argument of counsel to be a reversible error.