the minds of the jury, for that reason alone the judgment should be reversed." Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582; Hall v. United States, 150 U. S. 76, 14 Sup. Ct. 22, 37 L. Ed. 1003. It is sufficient that extraprofessional statements of counsel may gravely prejudice the jury and affect the verdict. Tucker v. Henniker, 41 N. H. 317; State v. Smith, 75 N. C. 306; Fuller v. State, 30 Tex. App. 339, 17 S. W. 1108.

The overnourished zeal of counsel, displayed in the attempt to seek conviction for crime, frequently calls for condemnation on the part of appellate courts, especially when in the closing argument to the jury the attorney for the state travels outside the evidence for his subject-matter, or indulges in truculent abuse of the accused. Smith v. People, 8 Colo. 459, 8 Pac. 920; Martin v. State, 63 Miss. 505, 56 Am. Rep. 813; Garlitz v. State, 71 Md. 293, 18 Atl. 39, 4 L. R. A. 601.

Where the county attorney, in his closing argument to the jury, repeatedly used abusive and improper language, calculated to create prejudice against the defendant, and the court, after objection made, fails to check him, and to instruct the jury to disregard his remarks, the defendant is entitled to a new trial. State v. Baker, 57 Kan. 541,

46 Pac. 947.

A reference to other offenses committed by a defendant on trial, but of which other offenses there is not evidence, is improper. State v. McCool, 34 Kan. 617, 9 Pac. 745.

In determining the effect of improper statements made by an attorney in the closing argument to the jury, the strength of the testimony against the party complaining will be considered, and, if the improper statements may have determined the verdict, a new trial will be granted. State v. Shelton, 6 Kan. App. 662, 49 Pac. 702.

When remarks of the prosecuting attorney to the jury, by appeal either to their fears or vanity, tend to coerce and cajole them, then a verdict of conviction is error. People v. Lange, 90 Mich. 454, 51 N. W. 534.

On a trial for murder, where the district attorney, in summoning up, by his remarks, appeals to the feelings of the jury, so as to probably coerce them into finding a verdict against the defendant, and it was reasonably doubtful whether he had a fair trial, judgment of conviction will be reversed. People v. Mull, 167 N. Y. 247, 60 N. E. 629. People v. Kramer, 117 Cal. 647, 49 Pac. 842, expressly holds that improper arguments of counsel, not based upon the evidence, in an address to the jury, are not justified by the fact that opposing counsel had already committed like impropriety.

Where, in a prosecution for burglary, an officer testified that he had searched the prisoner's trunk, it was reversible error for the prosecution to ask how he came to make the search, knowing that the answer would show that the prisoner was suspected of an

other theft, though the court sustained an objection to the question after the officer's answer to that effect had been given.

In People v. Valliere, 127 Cal. 65, 59 Pac. 295, the court, in part, say: "In my opinion the examination was incurable, and the statements sustained in the closing address were an outrage against justice, which should not be allowed to pass."

In the case of People v. Aiken, 66 Mich. 460, 33 N. W. 821, 11 Am. St. Rep. 512, the court, in part, says: "It must also be remembered that, however heinous the crime, and however difficult it may be to establish it by the usual and approved means of procedure, and no matter how firmly the public prosecutor and the community at large may be satisfied of the guilt of the accused, and even though in fact he may be guilty, the rules and methods of trial, permitted to be relaxed or disregarded in his particular case, with perhaps the laudable object and desire that justice may be done, must nevertheless, as a natural consequence of the ways of our jurisprudence, appear hereafter, as so relaxed or disregarded, as precedents to be used against all persons accused of crime, to vex the innocent as well as the guilty. There is therefore no safety and justice in allowing the, supposed merits of a particular case to override and set aside, even for a moment, the barriers that our Constitution and laws have hedged about the citizen when arraigned and put upon trial for an alleged crime."

A public prosecutor is presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action, to become a heated partisan, and by vituperation of the prisoner, and appeals to prejudice, seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and seeks no conviction through the aid of passion, sympathy, or resentment. The only way to secure fair trials is to set aside the verdicts so procured.

It is a matter of the greatest concern to care for and protect from violence and outrage the womanhood of our country. The protection of the mothers, wives, and daughters of our land, and the preservation of the sanctity and security of our homes, all depend upon the certainty and promptness with which cases of this character shall be visited with the just penalty of the law, and it is the duty of the courts and juries to give it effect. But a criminal trial should be an intelligent, conscientious investigation under the laws, with every favor for life, and even reasonable doubt as to the facts, in favor of the prisoner. The law of the land guarantees to every one accused of crime, regardless of race or color, whether of high or low degree, whether rich or poor, a fair and impartial trial. Whether the defendant be innocent or guilty, in our opinion he has

not been adjudged guilty in accordance with law, because he has not had a fair and impartial trial, which the law prescribes for a person charged with crime.

The record discloses other rulings, arising during the conduct of the trial, that would be difficult to defend. The trial of this case might well be termed a Tragedy of Errors. The questions already discussed are sufficient to dispose of this case, and it should be submitted to another jury to the end that all competent proof may be given in the regular and orderly way, and all the questions involved presented in that temperate and dispassionate manner which is so important in the trial of a capital case, and so essential to the protection of all the rights of the accused.

It is the opinion of this court that, for the reasons set forth herein, the judgment of the United States court for the Western District of the Indian Territory is hereby reversed, the cause remanded, and a new trial ordered.

SIONS.

The provisions of the sixth amendment to the Constitution of the United States, guaranteeing the accused a speedy public trial, were applicable to the Indian Territory.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1293; Dec. Dig. § 574.*] 4. MANDAMUS (8 61*)-SUBJECTS AND PURPOSES OF RELIEF-DISMISSAL OF CRIMINAL ACTION.

The writ of mandamus is a proper remedy to enforce the dismissal of a criminal action where the right to a speedy trial has been denied, in cases where the delay is caused by the abuse of discretion by the trial court.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 122-126; Dec. Dig. § 61.*] 5. CONSTITUTIONAL LAW (§ 199*) - Ex POST FACTO LAW.

No ex post facto law will be enforced against the accused which would in any way be prejudicial to his rights.

[Ed. Note. For other cases, see Constitutional Law, Dec. Dig. § 199.*]

6. MANDAMUS (§ 146*)-PARTIES PLAINTIFFUSE OF NAME OF STATE.

In mandamus proceedings to enforce a private right, the real party in interest should be named as plaintiff, and such proceedings should not be entitled in the name of the state on the relation of such party.

STAT

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 287; Dec. Dig. § 146.*] 7. STATUTES (§ 226*)-CONSTRUCTION UTE ADOPTED FROM ANOTHER STATE. Whenever Congress, in legislating for the Indian Territory, borrowed from the statutes of a state provisions which had received in such state a known, defined, and settled construction before such act of Congress was passed, that construction should be deemed to have been adopted by the courts over which such legislation extended; and the provisions of such laws should be construed as they were understood at the time in the state from which the same were borrowed.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 307; Dec. Dig. § 226.*]

8. CRIMINAL LAW (§ 575*)-TRIAL-"SPEEDY TRIAL."

By a speedy trial, as provided for by sections 2192 and 2193 of Mansfield's Digest of the Laws of the State of Arkansas, is meant a trial conducted according to the fixed rules, regulations, and proceedings of law, free from vexatious, capricious, and causeless delays caused or brought about by the officers of the state or county upon whom devolves the duty of the prosecution and determination of criminal cases; and, unless good cause to the contrary is shown, every person indicted for crime under the law in force in the Indian Territory prior to statehood is entitled to be tried before the end of the third term of the court, in which the indictment is pending, held after the return of the indictment, unless the delay happens on the application of the accused.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1294; Dec. Dig. § 575.* For other definitions, see Words and Phrases, vol. 7, pp. 6608, 6609; vol. 8, p. 7803.] (Syllabus by the Court.)

Original action in mandamus by the state, on the relation of Bunner Sims, against John Caruthers, judge of the Ninth judicial district. Mandamus denied.

This is an original action in mandamus, brought in this court under the provisions of section 12, art. 1, c. 28, p. 293, of the Session Laws of the state of Oklahoma passed in the year 1908 (Laws 1907-08), and article 33, c. 66, Wilson's Rev. & Ann. St. Okl. 1903.

Relator was indicted by the grand jury of the United States District Court in and for the Western District of Indian Territory, at the February, 1907, term of said court, sitting at Okmulgee, in three cases, charging him with the crime of assault with intent to kill. Under the terms of the enabling act and the Constitution of the state of Oklahoma, the district court of Okmulgee county became the successor of the United States District Court of the Western District of Indian Territory for the trial of all criminal cases then pending in said United States Court for the Western District of Indian Territory at Okmulgee.

The relator, by his attorneys, Messrs. Stan

ford & Cochran, on the 5th day of October, 1908, filed his petition and motion for a writ of mandamus in this court, alleging that, at the February, 1907, term of the United States Court in and for the Western District of Indian Territory, sitting at Okmulgee, three separate indictments were found and returned against the relator by the grand jury of said court, charging the relator with the crime of assault with intent to kill, and being numbered in said courts, respectively, Nos. 993, 994, and 995; the first, charging an assault with intent to kill Lucy Yahola; the second, assault with intent to kill Peggie Scott; and the third, assault with intent to kill John Tiger. That since said February, 1907, term of said court, two other and subsequent terms of said United States Court for the Western District of Indian Territory have been holden at Okmulgee, in said district; that is to say, the May, 1907, term, and the November, 1907, term. That since the 17th day of November, 1907, there has also been holden three terms of the district court in and for the Ninth judicial district of the state of Oklahoma, for Okmulgee county, to wit: The December, 1907, term; the January, 1908, term; and the April, 1908, term. Said terms were regularly fixed by order of the Supreme Court of this state. That relator was, at the February, 1907, term of the United States Court for the Western District of Indian Territory, admitted to bail; and that since said term of court he has been, and now is, at liberty, upon bond for his appearance at the district court for the Ninth judicial district of the state of Oklahoma; that five separate terms of court have been held since the said February, 1907, term of said United States Court for said district, at any of which terms the relator might have been placed upon trial for any and all of the offenses charged against him in said indictments. That no effort of any kind was made by the prosecution to bring either, or all, of said cases to trial; and that relator has been present at each and every term of said courts. That at the April term of said district court of the Ninth judicial district of the state of Oklahoma, for said county, the relator filed in open court his motion in writing, praying that he be given a trial upon all of said indictments against him, or that, failing to bring said cases to trial, the court enter an order dismissing each of said cases, and that be be discharged. That this motion was heard in open court, before the defendant herein, as presiding judge of said court. That the county attorney of said Okmulgee county made no showing whatever as to the reasons for the delay in bringing said charges against relator to trial at said term, or any term prior thereto, and, that no evidence was introduced showing cause for delay in bringing the relator to trial upon said indictments. That the criminal calendar for the Septem

ber, 1908, term of said district court has been set, and there appears on said calendar all of the cases above enumerated against relator, and that said cases are set down for trial in said court. That none of the delays in the trial of said cases were caused by the relator. That he has, at all times, been ready for trial, and that none of the delays have been at the request of either the relator or his attorneys. That none of the delays have been occasioned by want of time on the part of the court to try said cases, or either of them; and that at each of said terms of said courts other and less important business has been disposed of, including the trial of many civil cases. Relator prays that a peremptory writ of mandamus issue from this court, directed against the Honorable John Caruthers, judge of the district court of the Ninth judicial district of the state of Oklahoma, commanding him to. dismiss the three separate causes pending in said court against the relator. Relator filed in this court, in support of his petition and motion, the affidavit of the Honorable H. E. P. Stanford, one of his attorneys, in which he swears the facts stated in the petition herein are true.

To this petition the defendant, on the 5th day of October, 1908, filed his answer, under oath, in substance as follows: That he admits as true that said relator was indicted, as averred in his petition herein, and that two terms of said United States Court for the Western District of Indian Territory had been held in said district prior to the admission of this state into the Union; that by operation of law the district court of the Ninth judicial district, state of Oklahoma, became the successor of the United States Court for the Western District of Indian Territory, in so far as the cases of the United States against the relator are concerned; and that three terms of the district court of the Ninth judicial district of the state of Oklahoma have been held at Okmulgee since the admission of this state into the Union. And, further answering, defendant says: That while three terms of said last-named district court had been fixed and set for said county, only two terms were held wherein it would have been possible for relator's cases to have been tried, for the reason that the first term of said court, which was set for December, 1907, was for the purpose of getting the machinery of the state courts in said county in operation, and that at this term no jury was summoned, nor was the relator present. That at the January, 1908, term of said court, there was pending on the docket of said court, in said county, a large number of criminal and civil cases, amounting to several hundred of each. That it was a physical impossibility, and beyond the power of mental achievement, to have disposed of all such cases which were then pending in said court at Okmulgee, including the relator's cases, during the time allot

ted by order of the Supreme Court for said term in said county. That the records of said court show that the witnesses on behalf of the state were subpoenaed in relator's cases to be present at said court at Okmulgee on February 10, 1908, being the day on which relator's cases were set for trial in said court. That on February 10, 1908, the petit jury, which had been summoned to serve for said term, was discharged by order of said court on account of an epidemic of smallpox at that time prevailing in the town of Okmulgee; that it was deemed necessary to preserve the public health and safety for said jury to be so discharged. That the records do not show that relator was present at said term, ready and demanding trial of his cases; nor does it show that he objected to the discharge of the jury. That at the January, 1908, term, relator's attorney, Hon. H. E. P. Stanford, was a member of the Senate of the State of Oklahoma, and was only present at said term of court one or two days, and was not present on February 10, 1908, the day relator's cases were set down for trial, and that neither said attorney nor relator wanted a trial, or were ready for trial on said date. Respondent denies that at the April, 1908, term of said district court, the motion demanding a trial by relator was argued in said court, or that said court refused to enter an order of record, either dismissing him or overruling said motion. That, under a rule of said court, the hearing of motions were held on Saturdays and Tuesdays of each week during the term of said court. That the filing of all motions is noted by the clerk on the appearance or motion docket of said court, and the party desiring to have the same considered by the court must give notice to the opposing party in writing not later than 12 o'clock noon the day preceding the motion day upon which such motion is to be heard. That on the day relator's motion was filed the said court was engaged in the trial of a murder case, and that said case consumed about nine days of said term. That there are pending on the docket of said court for Okmulgee county hundreds of criminal and civil cases; that, in addition to Okmulgee county, there are three other counties within said judicial district; that in all of said counties the business of said court is very heavy; that he is the only judge presiding for said judicial district, and that as much business has been disposed of in said court as was possible; that relator's cases have not been disposed of for want of necessary time to do so; that his cases are set down upon the trial docket of said court for Tuesday, October 7, 1908; that relator can then get a trial of said cases if he so wishes; and that the relator has not been prejudiced.

In support of respondent's answer herein is offered a certified copy of the record of said courts pertaining to the action of said courts in the cases of the relator, also the verified statement of Joe Eaton, county attorney of

Okmulgee county, and the certificate of U. T. Whitmer, district clerk, certifying that at the opening of the September, 1908, term, there was pending in said court 419 criminal cases and 409 civil cases, and that there was filed in said court since the 16th day of November, 1907, more cases, both civil and criminal, than it has been posible to try.

To the answer of respondent, relator files reply, in substance, as follows: He admits that no jury was summoned at the December, 1907, term, but urges that the relator should not be prejudiced in his rights, because the Supreme Court of the state had designated said December term as a regular term of said court, and a jury could have been summoned. He admits that the fourth paragraph of respondent's answer sets forth the facts concerning the number of civil and criminal cases pending in said court at that time, but says that among the cases disposed of at said term were many of more recent date and less important than the cases of the relator; admits that the jury was discharged, as set forth in paragraph 5 of respondent's answer, but alleges that at said term many cases of later date and less importance were disposed of than those pending against relator; that ample time was had for the trial of relator's cases before the jury was discharged. That the motions of relator were not separately argued, but that a similar motion was argued in said court in a case pending against one Joe Hill, and that by agreement the argument made in the Hill Case was to apply to the cases of relator, and that upon the same record proof the cause against said Hill was dismissed; but that the said court failed and refused to dismiss relator's cases.

Exhaustive briefs were filed by both parties, and the case was fully and ably argued by counsel on both sides.

Before deciding this case, we desire to call attention to the title thereof. This action is entitled "The State of Oklahoma ex rel. Bunner Sims v. John Caruthers, Judge of the Ninth Judicial District of the State of Oklahoma." Section 4224, Wilson's Rev. & Ann. St. Okl. 1903, provides that all actions must be prosecuted in the name of the real party in interest, unless otherwise provided, but this case does not come within the exceptions named in the statutes. Therefore, in a mandamus proceeding to enforce a private right, the real party in interest should be named as plaintiff, and such proceedings should not be entitled in the name of the state on the relation of such party.

Charles Stanford & Cochran, for relator. West, Atty. Gen., and W. C. Reeves, Asst. Atty. Gen., for respondent.

BAKER, J. (after stating the facts as above). After carefuly considering the proof in this case, and reading and analyzing all the authorities cited on both sides, and such