¶1(concurring):
¶2I am of the opinion that, for the reasons assigned in the opinion of Mr. Justice Patterson, the second indictment was regularly found and is valid; but I concur in that part of the opinion of Mr. Justice McLaughlin which holds that the reception of the testimony of Nettie Drexler concerning what was said to the defendant by Mrs. Schmitt to which she did not hear the defendant’s reply, was reversible error, and also in that part of his opinion which holds that the conduct of the assistant district attorney also requires a reversal.
¶3I think that the test by which it should be determined whether a trial, either civil or criminal, is to be permitted to stand or is to be rendered nugatory for something outside of the evidence occurring in the court room, should be whether the presiding justice properly conducted the trial or was guilty of any error in regulating the conduct of the jurors, attorneys, counsel or spectators. If the judge *134performs his full duty it ought not to be. in the power of any one to render the trial fruitless upon such grounds. If an attorney or •counsel, either in his opening or closing remarks or during the trial, .■attempts to say or says something improper, I doubt whether'there is any case.where it would not be within the power of the presiding justice by administering a proper rebuke and sufficiently admonishing the jurors, to remedy the error and prevent any injurious consequences ; and in case of his failure to so act, the criticism' of the appellate court in reversing should fall upon him as well as upon the attorney or counsel. But the Court of Appeals has apparently decided that, in criminal cases at least, reversible errors may occur owing to the impassioned remarks of a district attorney, even though the trial justice does his full duty. Consequently district attorneys .and their assistants should conform their conduct to the limitations ■prescribed by the Court of Appeals, and conformity thereto should ■be compelled by the justice presiding. In the case at bar I think the bounds of propriety were overstepped by the district attorney far more than in cases where the Court of Appeals has' seen fit to reverse on that ground.
¶4I, therefore, vote to sustain the second indictment, and also for a new trial for the reasons stated.