<p>1 Criminal law: credibility of evidence: verdict: passion and prejudice. It is the province of the jury to determine the weight and credibility of evidence; and the fact that it may not credit the testimony of certain witnesses touching a fact essential to the defense does not necessarily show such prejudice and passion as will vitiate a verdict of guilty.</p> <p>2 Misconduct in argument: prejudice. The objectionable language used in this case by the prosecuting attorney in his closing argument, which was withdrawn and the jury advised that it was improper, is held to have been without prejudice.</p> <p>3 Misconduct of jurors: prejudice. It is also held that the remark of a juror made to his fellow jurors while deliberating, that he never heard the moral character of the prosecutrix questioned prior to the trial, was not sufficient to set-aside the verdict; as the record conclusively shows that no prejudice resulted.</p>
Affirmed · Decided 1910-10-19
Sherwin, J.
¶1*632credibility of evidence: verdict: passion and „ prejudice. „*631I. The appellant’s principal contention is that the verdict is not supported by the evidence, and that it is the result of passion and prejudice. The *632crime charged is alleged to have been committed, in the early part of August, 1907, and on the 30th day of April, 1908, the prosecutrix gave birth to a child. The defendant did not deny having had sexual intercourse with the prosecutrix. He simply denied that he had had intercourse with her during the month of August, 1907. The state produced evidence tending to show the previous chaste character of the prosecutrix, and the defendant produced two witnesses who testified that they had been unduly intimate with her before the alleged seduction by the defendant. We have carefully considered the evidence before us, and reach the conclusion that it is sufficient to sustain the verdict and judgment. There is considerable evidence tending to show that the prosecutrix was unchaste before she submitted to the defendant, but the witnesses were all before the jury, and it was its duty to determine their credibility and the weight that should be given to their testimony. If the jury did not believe the two witnesses who swore to intimate relations with the prosecutrix, there was no evidence before it which would have justified a finding of previous unchastity. That the jury did not credit the testimony of these two witnesses is manifest, but that does not indicate passion or prejudice that will vitiate its verdict.
¶22. inSargument: prejudice. In his closing argument for the state, the county attorney spoke of the two witnesses already referred to herein as “dirty dogs.” Objection was made to the language, and it was withdrawn, and- the court at the same time told the jury that the language was . , . improper. We cannot presume that the jury was in any way influenced by the language; and hence there should be no reversal on account thereof.
¶3*6333. of'jurors: prejudice.*632One of the jurors in separate conversation with two of his fellow jurors after the case had been submitted to them said that he had never heard the moral character *633of the prosecutrix questioned before the trial. Without determining whether such statement constituted improper conduct on the juror’s part; it . f 1 J , ’ is enough to say that the record conclusively shows that no prejudice resulted therefrom. The defendant undertook to prove by two physicians matters which they were incompetent to testify to under section 4608 of the Code. The ruling sustaining objections thereto was right. The judgment of the district court must be, and it is, affirmed.
