McRoberts

Defendant was tried on an information charging him with the murder of one John Murphy and was convicted of murder in the second degree. Defendant appeals from the judgment.

There is no claim made that the evidence was insufficient to justify the verdict. The grounds of appeal,urged in defendant's brief are misconduct of the district attorney in his address to the jury, and that certain instructions given the jury by the court were erroneous statements of the law and prejudicial to defendant.

1. The district attorney, apparently in reply to some comments of defendant’s attorney during his address to the jury concerning a knife said to have been found in the possession of the deceased, and which the prosecution identified as belonging to deceased but did not offer in evidence, remarked: ‘ This county has paid to have the knife examined and if he [defendant] wants that evidence he can have it.” Upon objection of defendant’s attorney, the court said: “Let that be stricken out, the statement ‘This county has paid to have the knife examined,’ etc.”

And again: “As I was going to say, if they had said that Mr. Murphy cut him, then it would have been proper to have introduced the knife,…