
    The State of Ohio v. Young.
    
      Misconduct of counsel — Remarks to: jury — ■Error—Must be brought into record — By certificate of judge — Affidavit instifñcient.
    
    The remarks of counsel in addressing a jury, to be the predicate of a proceeding in error upon the ground of misconduct of counsel in that regard, must be brought into the record of the trial by the certificate of the trial judge as are other matters occurring upon the trial and in his presence. They cannot be introduced by affidavit,
    (No. 10720
    Decided February 11, 1908.)
    Error to the Circuit Court of Allen county.
    
      The defendant in error was tried in the court of common pleas of Allen county upon an indictment charging him with a felony. A verdict of guilty having been returned, he filed a motion for new trial on the ground, among others, that the verdict had been procured by misconduct of one of the counsel representing the state, the misconduct being in his address to the jury. In support of this ground of the motion he filed an affidavit of the court stenographer purporting to set forth the language of the address, and that evidence is embodied in a separate bill of exceptions taken upon the overruling of the motion for a new trial. The language of counsel to which objection was taken does not otherwise appear in the record. In the common pleas court the motion for a new trial was overruled and sentence was imposed. On petition in error, the circuit court reversed the judgment of the court of common pleas because of such misconduct of counsel, no other error being found.
    
      Mr. B. F. Welty, prosecuting attorney, and Mr. William Klinger, for plaintiff in error.
   By ti-ie Court.

All things occurring in open court in the progress of a cause, from and including the impaneling of the jury to the submission of the cause, should be brought upon the record by a bill or bills of exception, verified by the certificate of the trial judge. That certificate imports absolute verity. The matters so to be included, transpiring in the presence of the trial judge and being within his knowledge, are to be thus conclusively stated in the record. They should not be left to affidavits and counter affidavits raising questions which depend upon the veracity and intelligence of witnesses and their opportunities for accurate observation. With respect to this subject the remarks of counsel to the jury are within the same rules and reason as are their questions to witnesses, their objections to evidence, their exceptions to rulings of the court, and their requests for instructions to the jury. Improper remarks to the jury during argument should be at once objected to. The action of the court upon such objection may be the subject of exception, and all should be shown as a part of the trial. Although the misconduct here complained of, if it occurred, occurred upon the trial and in the presence of the court, the practice resorted to treated it as conduct affecting the trial but not occurring in the presence of the court and, therefore, to be brought to the attention of the court by a motion and affidavits which were subject to controversy and inquiry. It would have been entirely competent for the court to reject this affidavit because of its superior and conclusive knowledge of the facts to which the affidavit related. The remarks of counsel not being properly shown in the record afforded to the circuit court no proper occasion for reversing the judgment.

Judgment of the circuit court reversed and that of the common pleas affirmed.

Shauck, C. J., Crew, Summers and Spear, JJ-, concur.  