concerned. Upon this broad ground we think the judgment should be reversed and a new trial granted."

III. Right to address jury when assisted by counsel.

The reported case (STATE v. TOWNLEY, ante, 253) holds that where a defendant who has not testified has been assisted by counsel until the time to make the argument to the jury, it is within the discretion of the court to refuse to permit the defendant to address the jury in his own behalf, where it appears that the discharge of the counsel was entered of record solely in aid of the request of the defendant. The court points out that a defendant who has not testified is almost certain,, in the guise of argument, to make assertions of fact favorable to his cause, which may properly be made only from the witness stand.

In Rehfeld v. State (1921) Ohio St., 131 N. E. 712, refusal to permit defendant to address the court or jury, upon request made after the final submission of the case, was held not error in the absence of an affirmative showing that an unfair trial resulted from such refusal.

Compare, however, the dictum in the Massachusetts case of Com. v. McConnell (1895) 162 Mass. 499, 39 N. E. 107, cited but not followed by the reported case (STATE v. TOWNLEY, ante, 253), wherein the court said: "While, if a person upon trial for crime is not defended by counsel, he must be allowed to conduct his case himself, and from the necessity of the case it may be impracticable to prevent him from making statements which he has no right to make, if he employs counsel, he must . . 'submit to the rules which have been established with respect to the conducting of cases by counsel.' No doubt, if he employs counsel he may himself take part in his own defense by addressing the jury, either in opening his defense or in arguing the cause; but in either case he must keep himself within the line allowed to counsel, and in neither can he make a statement of fact."

The English cases, while dealing with the right of the accused to ad

.

dress the jury, are of doubtful value as authority on the point under discussion, for the reason that they are concerned not so much with the question of the right of the accused to assist in his own defense, as with his right, in certain cases, to make an unsworn statement in his own behalf.

In Rex v. White (1811) 3 Campb. (Eng.) 98, 13 Revised Rep. 765, it was held that on a trial for misdemeanor the defendant cannot have the assistance of counsel to examine the witnesses and reserve to himself the right of addressing the jury, but that if he conducts the defense himself, counsel will be permitted to discuss a point of law which the defendant declares himself unable to argue. The court said: "I am afraid of the confusion and perplexity which would necessarily arise if a cause were to be conducted at the same time both by counsel and by the party himself. I am extremely anxious that a person accused should have every assistance in making his defense; but I must likewise look to the decent and orderly administration of justice. I therefore cannot allow counsel to examine witnesses for the defendant, if he is likewise to put questions to them himself and afterwards to address the jury. If in the course of the trial, any point of law arises which he declares himself incompetent to argue, I will be very ready to hear it discussed by his counsel, although he conducts the defense himself. I will do in this respect as was done formerly in capital cases, when the assistance of counsel was not permitted to the prisoner upon matters of fact. I think I cannot, consistently with my duty, go farther; and surely there is no hardship in the rule I lay down. If the defendant has counsel to conduct his cause, he may suggest any question to them which he considers fit to be put; or if he takes the conduct of it upon himself, he may have the benefit of their private suggestions upon matters of fact; and as soon as any point of law arises, they shall be readily heard upon it."

Likewise, in Rex v. Parkins (1824) 1 Car. & P. (Eng.) 548, Ryan & M.

166, it was held that in a felony case the judge will permit the defendant to address the jury and cross-examine the witnesses, and his counsel to argue points of law, and suggest questions to him for the cross-examination of witnesses.

In 1837, the Prisoner's Counsel Act was passed, conferring on persons accused of crime the right to make a full defense by counsel. It was held in Reg. v. Doherty (1887) 16 Cox, C. C. (Eng.) 306, that this act did not deprive the accused of any right to make any statement on his own account.

Prior to this decision, which remained the law until the passage of the Imperial Criminal Evidence Act in 1898, set out infra, the authorities were in hopeless conflict as to whether the prisoner had the right, when assisted by counsel, to address the jury in his own behalf. In Reg. v. Boucher (1837) 8 Car. & P. (Eng.) 141, it was held that a prisoner would not be permitted to address the jury when his counsel had already done so.

During the same year, the court in Reg. v. Beard (1837) 8 Car. & P. (Eng.) 142, stopped the prisoner's counsel from telling the jury facts related to him by the prisoner, saying: "If the prisoner does not employ counsel he is at liberty to make a statement for himself and tell his own story, which is to have such weight with the jury as, all circumstances considered, it is entitled to; but if he employs counsel he must submit to the rules which have been established with respect to the conducting of cases by counsel."

While it was held in a case decided the following year that a defendant in a felony case would be permitted to address the jury, under peculiar circumstances, before his counsel addressed the jury (Reg. v. Malins (1838) 8 Car. & P. (Eng.) 242), it was said in Reg. v. Walkling (1838) 8 Car. & P. (Eng.) 243, that this procedure was not to be considered as a precedent with the general practice in such

cases.

In the same year a prisoner was refused the privilege of making a statement, the court expressing the

opinion that under the Prisoner's Counsel Act, supra, both the prisoner and his counsel could not address the jury. Reg. v. Burrows (1838) 2 Moody & R. (Eng.) 124.

Later in that year, the court, in Reg. v. Rider (1838) 8 Car. & P. (Eng.) 539, said: "The general rule certainly ought to be that a prisoner defended by counsel should be entirely in the hands of his counsel, and that rule should not be infringed on, except in very special cases indeed. If the prisoner were allowed to make a statement, and stated as a fact anything which could not be proved by evidence, the jury should dismiss that statement from their minds; but if what the prisoner states is merely a comment on what is already in evidence, his counsel can do that much better than he can."

However, in the subsequent cases of Reg. v. Dyer (1844) 1 Cox, C. C. (Eng.) 113, and Reg. v. Williams (1846) 1 Cox, C. C. (Eng.) 363, it was held that permitting a prisoner to state his defense to the jury before his counsel addressed them was a proper practice.

In Reg. v. Teste (1858) 4 Jur. N. S. (Eng.) 244, it was held that the prisoner could make an address to the jury, or his counsel could do it for him, but that both could not be heard.

The point was next dealt with in 1859, in Reg. v. Taylor, 1 Fost. & F. (Eng.) 535, wherein the court, refusing to permit a prisoner defended by counsel to make a statement, said: "I foresee to what it will lead,—to prisoners being examined on their own behalf without the sanction of an oath, and then a speech commenting on their statements; but I will allow the prisoner to exercise the option of either speaking himself or having his counsel speak for him."

In 1860, in the case of Reg. v. Manzano, 8 Cox, C. C. (Eng.) 321, 2 Fost. & F. 64, 6 Jur. N. S. 406, the conclusion was reached that, while a person defended by counsel should not be allowed to make a statement to the jury, an address might be permitted where the circumstances of the case warranted it. The court said: "Under the peculiar circumstances of this case,

and considering the consequences involved, I will allow the prisoner to make a statement. There are authorities for this; at the same time there is an authority in direct contradiction. Reg. v. Rider (1838) 8 Car. & P. (Eng.) 539. However, I now permit the statement to be made, but I wish it to be distinctly understood that I do so contrary to my own opinion of the propriety of such a course. The judge ought to be in a position to be entirely neutral between the prisoner and the prosecution; but if a statement be made by the prisoner, as the counsel for the prosecution can offer no observations upon it, it may become the duty of the judge to do so; and thus he is put in a wrong position, and one that he ought not to be put in. Moreover, if there were such a rule in a case of murder, there is no reason why it should not apply equally to every other case of criminal trial; it is only under the peculiar circumstances of this case that I now allow the statement to be made."

In 1871, the court in Reg. V. Stephens, 11 Cox, C. C. (Eng.) 669, permitted the counsel for the defense to address the jury after the defendants had addressed the jury themselves.

Later, it became the practice that the accused might make a statement at the close of his counsel's address, but subject to the right of reply on the part of the prosecution, as being in the nature of new matter laid before the jury. Reg. v. Shimmin (1882) 15 Cox, C. C. (Eng.) 122.

That practice was applicable, however, only when the prisoner did not call any witnesses in his own behalf.

Reg. v. Millhouse (1885) 15 Cox, C. C. (Eng.) 622, wherein the court said: "I cannot permit the prisoner to make a statement of fact to the jury, he having elected to call witnesses. To allow such a course would be to give him a most unfair advantage, especially if he were an intelligent man. If it were to be allowed, the result would be that, after counsel had made a defense and called witnesses to facts, that then the prisoner, who was not liable to be cross-examined, 17 A.L.R.-18.

could supplement what had been said by his counsel and witnesses, and supply facts by means of a statement made without the sanction of an oath, which it would be impossible to test by the ordinary means of cross-examination. As the law at present stands, a prisoner not being competent to give evidence upon oath, I am of opinion that it would be most impolitic and dangerous to allow the privilege urged by Mr. Horace Browne. In my judgment, to permit such a course of procedure would be extending most unfairly the rule laid down by the majority of the judges. Although I dissented from that rule, still I feel bound to carry it out; but I will not extend it unless I am compelled. Either Mr. Horace Browne must elect to call no witnesses, in which event the prisoner, after Mr. Browne's address, can supplement his counsel's observations by a statement of fact; but it would be most mischievous and contrary to all precedent to allow the prisoner to call witnesses and then to volunteer his own statement, and perhaps ingeniously supply what was omitted in the speech of his counsel or the evidence of the witnesses,—a statement which, in the present state of the law, could not be contradicted, and upon which the prisoner cannot be cross-examined. In effect, the prisoner would be doing indirectly what he could not do directly."

It was on this point that Reg. v. Doherty (1887) 16 Cox, C. C. (Eng.) 306, supra, was decided, holding that the Prisoner's Counsel Act of 1837 did not deprive the accused of the right to make a statement on his own account.

In 1898, the Imperial Criminal Evidence Act, chap. 36, was passed, making all accused persons competent witnesses on their own behalf. By that act (§ 1, subsec. [h]) it is provided that nothing in the act shall affect the right of the person charged to make a statement without being sworn. See Rex v. Pope (1902) 18 Times L. R. (Eng.) 717; Rex v. Sheriff (1904) 20 Cox, C. C. (Eng.) 334.

In the Canadian case of Reg. v. Rogers (1888) 1 B. C. 119, a prisoner was permitted to make a statement

from the dock after his counsel had addressed the jury. That decision was rendered before a prisoner was, in Canada, a competent witness in his own behalf.

The Canada Evidence Act, permitting prisoners to give evidence in their own behalf, was passed in 1893. In the first case to pass on the question after the passage of that act (Rex v. Krafchenko (1914) 22 Can. Crim. Cas. 277), the court, refusing to the prisoner the right to make an unsworn statement, said: "It contains no equivalent to subsec. (h) of § 1 of the Imperial Act. I know of no reported Canadian case on the matter since this act was passed, and the only reference I have seen to it by any Canadian judge is some dicta in Rex v. Aho (1904) 8 Can. Crim. Cas. 453. In that case Hunter, Ch. J., and Duff and Irving, JJ., of the British Columbia supreme court, are reported to have said arguendo that a prisoner in an undefended case might either make a statement or give evidence on oath. I should certainly feel myself bound by

the considered judgment of these distinguished judges; but, under the circumstances, what they said was manifestly obiter dicta, and was not their considered opinion. I think it extremely probable that had it not been for the saving clause in the Imperial Criminal Evidence Act 1898, it would have been there held that the privilege of making an unsworn statement was abrogated by that act. The privilege was granted to prisoners because they were debarred from giving evidence on oath, and for that reason alone. When the law was changed and the right accorded to them to tell their story on oath as any other witness, the reason for making an unsworn statement was removed. In my opinion a prisoner should not now be allowed to make an unsworn statement. I refuse the application."

The Krafchenko Case (Can.) supra, was followed in the recent case of Rex v. Campbell (1919) 33 Can. Crim. Cas. 364, 14 Alberta L. R. 583, [1919] 1 West. Week. Rep. 1076. A. S. M.

131 N. E. 573.)

Courts jurisdiction - duty to consider.

2. The court must, of its own motion, always consider the question of its jurisdiction over any matter brought before it.

Office removal of officer power court.

of

a

If the Constitution provides method of removal from office of an "officer of the commonwealth," that method is exclusive.

18 C. J. 303, § 26; 22 R. C. L. § 265; Speer v. Wood, 128 Ark. 183, 193 S. W. 785; Lowe v. Com. 3 Met. (Ky.) 237; State ex rel. Dawson v. Martin, 87 Kan. 817, 126 Pac. 1080; 7 Lawson, Rights, Rem. & Pr. p. 5970, § 3797; 29 Cyc. 1414; Dinan v. Swig, 223 Mass. 516, 112 N. E. 91; Opinion of Justices, 10 Gray, 613; Opinion of Justices, 3 Cush. 585; Throop, Pub. Off. p. 341; Re Constitutional Convention, 14 R. I. 649; Fant v. Gibbs, 54 Miss. 396.

The district attorney is an "officer of the commonwealth."

Opinion of Justices, 167 Mass. 599, 46 N. E. 118; People ex rel. Rodgers v. Coler, 166 N. Y. 1, 52 L.R.A. 814, 82 Am. St. Rep. 605, 59 N. E. 716; Kelly v. Ferguson, 5 Okla. Crim. Rep. 316, 114 Pac. 631; Fleming v. Hance, 153 Cal. 162, 94 Pac. 620; Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380; Com. v. Bubnis, 197 Pa. 542, 47 Atl. 748; Com. v. Rogers, 9 Gray. 278.

An officer cannot be impeached (or removed) for an act committed during a prior term.

22 R. C. L. § 271; State ex rel. Atty. Gen. v. Hasty, Ann. Cas. 1916B, 707, note; State ex rel. Brickell v. Hasty, 184 Ala. 121, 50 L.R.A. (N.S.) 553, 63 So. 559, Ann. Cas. 1916B, 703; State ex rel. Schultz v. Patton, 131 Mo. App. 628, 110 S. W. 636; Smith v. Ling, 68 Cal. 324, 9 Pac. 171.

The pleadings and the hearing must be limited to acts and omissions alleged to have been committed or omitted by him in or concerning his office as district attorney for the

northern district, and affecting the administration of the said office.

State ex rel. Tyrrell v. Jersey City, 25 N. J. L. 536; 22 R. C. L. §§ 268, 282; State ex rel. Kirby v. Henderson, Ann. Cas. 1912A, 1290, note; Speed V. Detroit, 98 Mich. 360, 22 L.R.A. 842, 39 Am. St. Rep. 555, 57 N. W. 406; Thurston v. Clark, 107 Cal. 285, 40 Pac. 435; State ex rel. Martin v. Burnquist, 141 Minn. 308, 170 N. W. 201; Lancaster v. Hill, 136 Ga. 405, 71 S. E. 731, Ann. Cas. 1912C, 272; Farish v. Young, 18 Ariz. 298, 158 Pac. 845; State ex rel. Gill v. Watertown, 9 Wis. 254; People ex rel. Bancroft v. Weygant, 14 Hun, 546; State ex rel. Gebrink v. Hospers, 147 Iowa, 713, 126 N. W. 818, Ann. Cas. 1912B, 754; 23 Am. & Eng. Enc. Law, 2d ed. 442; State ex rel. Hart v. Duluth, 53 Minn. 238, 39 Am. St. Rep. 595, 55 N. W. 118; Winfrey v. State, 133 Ark. 357, 202 S. W. 23; State ex rel. Martin v. Burnquist, 141 Minn. 308, 170 N. W. 201; State v. Welsh, 109 Iowa, 19, 79 N. W. 369.

Messrs. J. Weston Allen, Attorney General, and Henry F. Hurlburt and Edwin H. Abbot, Jr., Assistant Attorneys General, for the Attorney General.

Rugg, Ch. J., delivered the opinion of the court:

This is an information, bill, or petition by the attorney general brought under Gen. Laws, chap. 211, $4, for the removal of Nathan A. Tufts from his office as district attorney for the northern district. It was heard first upon two motions filed by the respondent, one being a motion to dismiss in the nature of a plea to the jurisdiction, and the