called by the people. When the sheriff left the stand the prosecuting attorney, without asking permission of defendant or his counsel or informing them of the purpose of recalling the witness, recalled to the stand one of the deputy sheriffs, and the following occurred: "Q. Do you know the respondent's wife?

"A. Yes, sir.

"Q. Is she in the courtroom now?

"Mr. Noon: Wait a moment. I object to that and take an exception to it. If your honor please, I ask the court to instruct the jury that that is an incorrect statement, and ask him to reprimand the prosecutor for making it.

"Mr. Bailey: Her name is on the information.

"Mr. Noon: That is a wholly unjustifiable statement; it is a very bad question, your honor. Your honor, I want to say to you, I am incensed at the prosecutor, with his experience, asking that kind of a question. The Supreme Court in People v. Trine [164 Mich. 1], has said that it is reversible error to make that kind of a statement. He knows it is immaterial; that she can't be a witness. He knows as he sits in his chair it is for the purpose of prejudicing the jury. "Mr. Bailey: She can be a witness for him. "Mr. Noon: Mr. Bailey, that is wholly inexcusable; that is a bad, rash statement.

"Mr. Bailey: You are excited.

"Mr. Noon: Yes, I am excited to think the prosecutor would make that kind of a statement. I am excited and angry both. You know it is wrong; you know as you sit in your chair it is wrong.

"Mr. Bailey: I don't know any such a thing. She is indorsed on the information as a witness.

"Mr. Noon: I take exception to that, if your honor please, and I say that is a very prejudicial statement. "The Court: There should nothing take place in open court in reference to a wife by any inquiry whether the other party would consent to her being a witness. It should not be made in the presence of the jury.

"Mr. Noon: Exactly.

"The Court: Or either party be put in a position

he must refuse in the presence of the jury. That has been said by the Supreme Court.

"Mr. Noon: Puts me in a position where he has no right to put me; he has no right to ask that question. He puts me in a position where I must object, which he has no right to do; it must be prejudicial. He can't be condemned too severely. Mr. Bailey knows that is not right. I would not forget my oath of office enough to make that kind of a statement.

"Mr. Bailey: I take exception to that remark of Mr. Noon's. He goes too far.

"Mr. Noon: I say I would not make that statement in the presence of the jury if I was the prosecuting attorney of this county. You say I am excited. I am, and chagrined to think you would make that kind of a statement.

"The Court: Gentlemen, I can only say that this matter should not have occurred in open court in the presence of the jury, and it should not influence your mind against the respondent at all because the question has been asked in open court, nor should any answer that might have been made to the question, if answer was made-if it was answered, it should have made no influence upon you in your determination of the questions in this case.

"Witness: I didn't answer it.

"The Court: If it was not answered the asking of the question was not lawful, and the fact that it was asked should have no influence upon your mind whatever."

Defendant made a motion for a new trial alleging among other reasons this transaction. The trial judge was of the opinion that the misconduct of the prosecutor was cured, and we have before us the question as to whether under the circumstances, and all of them, what was said and done, all of it, constituted reversible error. The custom in vogue in Jackson county of having the names of the defendant's witnesses indorsed on the information, where he is without means to procure their attendance, does not comport with the usual practice under such circumstances.

Usually an order is made that such witnesses be subpœnaed at public expense. The custom in vogue therefore created an unusual situation; the people would be expected to produce the wife of defendant, her name being indorsed on the information, but she could not be a witness against him without his consent. Section 12555, 3 Comp. Laws 1915.

Cases are numerous in this court where we have had occasion to consider the conduct of counsel upon the trial of jury cases. We cannot undertake the review of all or any considerable portion of them. Where the conduct of counsel was prejudicial and was not or could not be cured by the trial judge we have reversed the cases. Where such conduct could be and was cured by the trial judge and the error was therefore without prejudice we have declined to disturb the judgments. Illustrative of the first class is People v. Treat, 77 Mich. 348. In that case, the prosecuting attorney in his closing argument, after Judge Smith had addressed the jury in behalf of the defendant, stated what had been whispered to him by the complaining witness that Judge Smith had wanted his client to plead guilty. This court was of the opinion that the error was of such a character as that it was not and could not be cured by what was said by the trial judge, and it was there said:

"The effect of such statement was to influence the jury to believe not only that Treat was guilty, but to destroy entirely the force of the argument which his counsel had made in his favor, and make it appear that he was rendering his client a merely perfunctory service; that while he was urging upon the jury the innocence of his client, the prisoner at the bar, he believed him to be guilty of the offense charged. No amount of caution that the jury should disregard such statement could prevent its having some weight with them."

In People v. Fowler, 104 Mich. 449, the prosecuting

attorney in his argument referred to the fact that Mrs. Peck, with whom defendant was charged with having committed adultery, had not been sworn. This court said:

"This language was entirely uncalled for. The prosecutor had no right thus to attempt to prejudice the respondent and the trial court should not have permitted these remarks, and, if made, should have directed the jury that they could not weigh that fact against the respondent."

Counsel for the defendant relies most strenuously on the case of People v. Trine, 164 Mich. 1, and insists that it is absolutely controlling on the instant case. In that case the prosecuting attorney called defendant's wife to the stand without first obtaining his consent. This compelled the defendant to object. The case was reversed. We have examined the record in that case for the purpose of having before us the facts of the case and the exact question there considered. We find the assignment of error there raising the question to be as follows:

"The court erred in not reprimanding the counsel for the people in calling to the stand the witness, Mrs. Floyd Trine."

This was the error there assigned and there considered. What was there said had reference to the record with the assignment of error there before the court. In that case the prosecutor was not reprimanded, and the jury not instructed to disregard the incident. In the case at bar the jury was told that the prosecutor's conduct was "unlawful," that it should not "influence your mind," and the fact that the question was asked, "should have no influence upon your mind whatever."

In the first of the cases considered this court was of the opinion that the error, growing out of the misconduct of counsel, could not be cured; in the last

cited cases no attempt was made to cure the error. Cases belonging to this class might be multiplied. Illustrative of cases where the error growing out of the misconduct of counsel has been held to be cured by the instructions of the trial judge are Gallant v. Miles, 200 Mich. 532; Goldman v. Railway, 200 Mich. 543; Merrill v. Tinkler, 160 Mich. 575; Wheeler v. Jenison, 120 Mich. 422; Devich v. Dick, 177 Mich. 173; Eberts v. Mt. Clemens Sugar Co., 182 Mich. 449. These cases might also be multiplied. In many cases this court has taken occasion to seriously criticize counsel for improper conduct, but where the trial judge has carefully guarded the rights of the parties, and instructed the jury to disregard the misconduct and such misconduct could be cured, and was cured by the trial court, this court has in such cases declined to reverse the case because counsel in the heat of the trial oversteps the bounds of proper conduct. We think the instant case falls within the latter class of cases. We must assume that the jury was made up of intelligent men, and that they understood the direction of the trial judge to disregard the incident. The seriousness of the charge against the defendant was such as to prompt careful consideration of the instructions of the trial judge. Not only were they told that they should disregard the incident, but in the charge the presumption of innocence was properly stated to them, and they were told that it must be overcome "by evidence in the case convincing you of the fact of guilt beyond a reasonable doubt." The charge was a fair one. There was no request by defendant's counsel that the trial court go farther in cautioning or instructing the jury than he had already done.

Finding no reversible error in the case the judgment will be affirmed.

BIRD, C. J., and OSTRANDER, MOORE, STEERE, BROOKE, STONE, and KUHN, JJ., concurred.