discharging the jury, and entering a judgment of dismissal, on the grounds stated. The case should have been submitted for a finding by the jury upon the evidence, under proper instructions. Being satisfied that the law is one which the legislature was authorized to pass, and which the courts should enforce, and since the court below by its finding practically held the statute inoperative and in effect nullified it, the judgment is reversed and the cause remanded, for such further proceedings as may be proper under the law. Reversed and Remanded. Mr. JUSTICE MUSSER and Mr. JUSTICE GABBERT concur. [No. 7540.] WECHTER V. THE PEOPLE. a 1. EVIDENCE-Circumstantial Evidence-The prisoner entered restaurant shortly before the hour of closing, and while the cashier was counting the receipts of the day. He held a revolver in his hand, and a large handkerchief hung loosely about his neck. He took one step forward, glanced hastily towards the rear of the room, raised the handkerchief so as to cover his face except the eyes, turned towards the cashier, and as deceased rose to confront him, ordered him to throw up his hands, and at once discharged his revolver inflicting a mortal wound. He had on the prior evening, and at about the same hour, been observed looking into the restaurant, in range with the cash register. Held in view of sec. 1609 of the Rev. Stat. that direct evidence was presented of an intent to commit robbery, and that under sec. 1624 of the Revised Statutes the jury might award the penalty of death. 2. Order of Proof-It is in the discretion of the court to receive in rebuttal evidence which properly should have been presented in chief. Unless it appears that prejudice to the accused resulted the court of review will not interfere. 3. NEW TRIAL-Misconduct of Counsel-In the prosecution of one accused of the crime of murder alleged to have been committed in an attempted robbery, the district attorney, exhorting the jury to a conviction, and an award of the death penalty, said to them, "It is time for this series of crimes to stop. Men sent to the penitentiary seldom serve their sentences"; and when counsel for the prisoner objected to his line of remark, he exclaimed: "I thought you would object to that"; and later when prohibited by the court from pursuing the argument, said to the jury: "This is a good place to stop. It seems to hurt." Held, highly improper and deserving a sharp rebuke from the court. But the court declined to hold that the jury could have been influenced thereby to render a verdict not based upon their honest convictions as to the effect of the testimony. In the same case the prisoner testified that he went to the restaurant to collect money which he had deposited with a young woman whom he thought was dining there with a male escort; that he carried the gun to frighten the escort, and to defend himself, if attacked by the escort. Upon this feature of the testimony the district attorney, in the closing argument, insisted that the prisoner by his own testimony had admitted an attempt to rob. Counsel for the prisoner objecting to this line of remark, the district attorney again insisted to the jury that the prisoner by his statement went to the restaurant to obtain money by force, and that whether it was his own money or the money of another was immaterial. Held, that the argument of the district attorney was improper and should have been stopped by the court; but the court having at the time of the objection, called attention to the instructions which the jury would take with them to the jury room, refusing to speak verbally as to the question of law which the objection presented, it was held that by this, the jury must have understood that they should entirely disregard what was said by the district attorney upon this matter, both before and after the objection. 4. MURDER-Death Penalty-Statute Construed-The act of March 17, 1911 (Laws 1911 c. 195) has not the effect to repeal sec. 1624 of the Revised Statutes, as to male persons between the ages of sixteen and thirty years. Error to Denver District Court.-Hon. CARLTON M. BLISS, Judge. Mr. H. E. LUTHE, for plaintiff in error. Hon. BENJAMIN GRIFFITH, attorney general, Mr. THEODORE M. STUART, Jr., assistant attorney general, for the people. Mr. JUSTICE GABBERT delivered the opinion of the court: Plaintiff in error, defendant below, was convicted of the crime of murder in the first degree. The jury fixed the penalty at death, and the court pronounced sentence accordingly. At the trial the defendant requested the court to instruct the jury that if they found him guilty of homicide committed in the perpetration, or attempted perpetration, of robbery, and not by a deliberate act of homicide, that they should find him guilty of murder in the first degree, but in such case their verdict would stand upon circumstantial evidence, and they could not fix the penalty at death. This request was refused, and the court instructed the jury to the effect that in case they found the defendant guilty of murder in the first degree, they should, in their verdict, fix the penalty to be suffered by the defendant either at imprisonment for life, at hard labor in the penitentiary, or at death. The statute on the subject of penalty for murder, section 1624 Rev. Stats. 1908, provides: 66* * All murder which shall be perpetrated by means of poison, * * or by any kind of willful, deliberate and premeditated killing, or which is committed in the perpetration, or attempt to perpetrate, any * * * robbery shall be deemed murder of the first degree. The jury before which any person indicted for murder shall be tried, shall, if it find such person guilty thereof, designate by its verdict whether it be murder of the first or second degree, and if murder of the first degree, the jury shall, in its verdict, fix the penalty to be suffered by the person so convicted either at imprisonment for life at hard labor in the penitentiary, or at death; and the court shall thereupon give sentence accordingly. Provided, * * * * that no person shall suffer the death penalty * who shall have been convicted on circumstantial evidence alone." The theory of the prosecution was, that defendant committed the murder of which he was convicted in an attempt to commit the crime of robbery, or that the killing was willful, deliberate and premeditated. The jury did not designate upon which phase of the case they arrived at their verdict. Counsel for defendant contends that there is no direct proof of the intent of the defendant to commit robbery; that proof of his intent on this subject is circumstantial, and hence argues that under our statute the death penalty cannot be inflicted. For this reason it is urged the court erred in refusing the instruction requested, and giving the one it did, as the jury should have been instructed upon each phase of the case, and advised that if the verdict was based upon homicide committed in committing, or attempting to commit, a robbery, the death penalty could not be inflicted. In brief, the testimony on the part of the people was as follows: W. Clifford Burrowes was the person killed. He was shot by the defendant in the White House Cafe, which is located in the city of Denver. It closed each evening at eight o'clock, and is managed by Mrs. Hoff and her son-in-law and daughter, Mr. and Mrs. Schroeder. Shortly before eight o'clock on the evening deceased was shot, Mrs. Schroeder was counting the receipts of the cash register, preparatory to closing. The register was on a counter, about ten feet from the front door. Deceased had just finished a meal, and was sitting on a settee, talking with Mrs. Schroeder. At this time the defendant entered the cafe by the front door, with a revolver in his hand, and a large handkerchief hanging loosely around his neck. He closed the door, took a step forward, glanced hastily towards the rear of the room, raised the handkerchief over his face, covering all but his eyes, and turned facing the deceased and Mrs. Schroeder. Burrowes arose, and defendant ordered him to throw up his hands and get behind the counter. Burrowes replied: "No, I will not do it," when defendant discharged his revolver at him, inflicting a wound from which Burrowes died the next morning. Mrs. Schroeder and her mother rushed to the aid of Burrowes, seized the defendant, and, with the assistance of a customer and male help from the kitchen, held him captive until the arrival of the police. Mrs. Hoff testified that she had noticed the defendant the evening before, shortly before eight o'clock, looking into the restaurant, in range with the cash register. Defendant testified at the trial. He admitted the shooting, and his defense was the motive with which he entered the cafe, his claim being that he had entered to collect a sum of money he had delivered to a young woman who, he thought, was dining there with a male escort; that he carried the gun to frighten the escort, or to use, in case he attacked him; that deceased grappled with him as soon as he entered, and that during the struggle the revolver was discharged, which was caused by Burrowes seizing the defendant's hand in which he held the revolver, and gripping it so firmly that it caused its discharge. He denied that he had any intention of robbing the cafe, or any one in it. It is on this testimony that counsel for the defendant bases his contention that the court erred in the particulars under consideration. His claim is, that there being no testimony that defendant demanded money, and no taking of money, or attempt to take it, by force on his part, that his intent in these respects can only be determined from the other facts detailed, which, at most, are only sufficient from which the inference might be drawn that his intent was to rob; but there being no direct proof of such intent, the testimony from which the inference of his intent could be drawn is circumstantial. To what extent our statute inhibits the infliction of the death penalty where the verdict is based upon circumstantial evidence that is, whether it applies to a case where some of the material facts are established by circumstantial evidence only, or where proof of the material facts depends upon circumstantial evidence alone, we need not determine, as the only question we need consider at this time is, whether the testimony on the subject of the intent of the defendant to rob, is circumstantial. We do not think it is. The testimony of eye witnesses, detailing the acts of the defendant, is certainly direct evidence, and the inference which can logically be drawn from such testimony is not circumstantial, but is based upon direct proof. Intent is a question of fact, provable like |