[No. 929.

August 28, 1902.]

#### THE TERRITORY OF NEW MEXICO, Appellee, v. ALBERT SHERRON, Appellant.

SYLLABUS.

It was error to deny a sole defendant in a criminal case the right to he heard before the jury by two counsel.

Appeal from the district court of Socorro county, before Daniel H. McMillan, Associate Justice.

.Reversed.

H. M. Dougherty for appellant..

It is error sufficient to reverse a judgment for the court to suffer counsel against objection to state facts pertinent to the issue and not in evidence; or to assume arguendo such facts to be in the case when they are not.

2 Ency. PL and Pr., pp. 727-730 and cases cited; see also cases cited in 14 American Digest, p. 2370, sec. 1669.

The prosecution may comment on defendant’s failure to produce witnesses, and hence much more should the liberty be extended to the defendant.

People v. Young (Cal.), 36 Pac. 770; Green *516v. State (Ala.), 12 So. 416; United States v. Chandler, 65 Fed. 308; State v. Toombs (Iowa).» 45 N. W. 300; State y. Yordi (Kan.), 2 Pac. 161; Com. v. Clark, 80 Mass. 367; Com. y. Mc-Cabe, 163 Mass. 98, 39 N. E. 77; State y. Mathews, 10- S. W. (Mo.) 144, 11 S. W. 1135; Blake v. People, 73 N. Y. 586;’People v. Hovry, 29 N. Y. 554; State v. Kiger, 20 S. E. 456; Com. y. Webber, 31 Atl. 481; Mercer y. Slate, 17 Tex. App. 452; Crames v. State, 28 Tex. App. 316; Hall v. State, 22 S. W. (Tex.) 141; Mayes v. State, 24 S. W. (Tex.) 421; State v. Fitzgerald, 68 Yt. 125, 34 Atl. 429; Tipton v. State, 30 Tex. App. 530; State y. Weddington, 103 N. Car. 364; Gram y. State, 97 Ala. 57; Graves v. United States, 150 U. S. 118; 2 Am. and Eng. Enc. PI. and Pr., p. 722, and cases cited; 11 Am. and Eng. Ency. of Law (W. Ed.), p. 504.

Refusal of court to permit defendant to be heard before the jury by two attorneys was reversible error. In New Mexico an express provision authorizes two counsel to be heard.

Compiled Laws of 1897, sec. 2899.

This law applies to criminal as well as civil procedure.

Territory v. Perea, 1 N. M. 629; Territory y. Revera, 1 N. M. 640; Territory y. Lopez and Casias, 3 N. M. 167; Territory v. Romine, 2 N. M. 114; Territory y. Anderson, 4 N. M. 213; Territory v. O’Donnel, 4 N. M. 196; Territory y. McKinny, 3 N. M. 657; Territory v. Nichols, 3 N. M. 103.

Concerning, the recording of brands, see—

Pryor v. Port-month Cattle Co., 27 Pac. (N. M.) 327.

Edward L. Bartlett, Solicitor-General, for the Territory.

*517OPINION OP THE COURT.

PARKER, J.

Upon tbe trial oí tbe defendant be was represented by two counsel, both of whom desired to address tbe jury, wbicb tbe court refused. Tbis was error in view of tbe positive provision of tbe statute granting tbis right. Compiled Laws, sec. 2899.

Tbe action of tbe court deprived tbe defendant of a substantial right wbicb was of great importance to him. Where two counsel appear it is quite usual to divide tbe work of addressing tbe jury, one counsel devoting himself to one part of tbe case and tbe other to tbe remainder. Doubtless tbis statute was not called to tbe attention of tbe trial court. We feel compelled, however, to bold that tbe action of tbe trial court was prejudicial to tbe rights of tbe defendant, and that tbis canse must be reversed for tbis reason, and it is’ SO' ordered.

Mills, C. J., McFie and Baker, JJ., concur.

McMillan, J., having tried tbis case below took no part in tbis decision.