respects to be ministerial by the Kansas City Court of Appeals as follows: "But as the further and imperative duty rests on the corporation to protect its streets and sidewalks from dangerous nuisances and obstructions, and to keep them in a reasonably safe condition for use by the public, by day and by night, it would be an absurd contradiction to say that it might determine upon a plan for the improvement of its streets, which would expose the public to perils and dangers of life and limb by digging yawning ditches along and about its highways, and leave them unprotected and unguarded, and without any danger signals, to entrap the unwary, and often the most vigilant, at night." By the weight of authority this rule is established: The principle that actionable negligence cannot be predicated of the plan itself, does not go so far as to exempt from liability where the plan leaves the streets in an unsafe and dangerous condition for public use. 23 Accordingly the Kansas City Court of Appeals held that where a street is rendered unsafe for travel by the direct act of the city, the corporation will be held liable where the doctrine of implied municipal responsibility is recognized for unsafe streets, irrespective of the plan itself.24 The Supreme Court of Michigan holds that a township cannot construct an unsafe and dangerous road-one not safe and convenient for public traveland shield itself behind its legislative power to adopt a plan and method of building and constructing in accordance there with. The court refused to construe the statute requiring townships to keep highways in repair so as to relieve them from liability on the ground that the township had adopted a method of construction, and had built according to the plan.2 In Ohio, a city was held liable for damages caused by the fall of a bridge built upon a defective plan, furnished by the city engineer. 26

25

22 Per Philips, P. J., in Hinds v. Marshall, 22 Mo. App. l. c. 214, citing Lower v. Sedalia, 77 Mo. 431; Oliver v. Kansas City, 69 Mo. 79; Beaudean v. Cape Girardeau, 71 Mo. 392; Russell v. Columbia, 74 Mo. 480. The Hinds case has been approved in Young v. Kansas City, 27 Mo. App. 101, 114.

232 Dillon, Munic. Corp. (2d Ed.), pp. 1046, 1047, note 1, § 1024; 2 Thompson, Neg., p. 736, note 9. 24 Hinds v. Marshall, 22 Mo. App. 208.

25 Malloy v. Walker Township, 77 Mich. 448.

Dayton v. Pease, 4 Ohio St. 80. See Bailey v. New York, 3 Hill (N. Y.), 531.

Sec. 6. Reasonableness of Plan.-"Any particular plan that may be adopted must be a reasonable one," says the Supreme Court of Maryland, "and the manner of its execution thence becomes, with respect to the right of the citizens, a mere ministerial duty." "It is the duty of the municipal corporation to exercise reasonable care in providing a plan, as well as in doing the work.''28 "After a careful consideration of this entire question, we have come to the conclusion that where a street, as planned or ordered by the governing board of the city, is so manifestly dangerous that a court upon the facts can say, as a matter of law, that it was dangerous and unsafe, the city should be held liable.'' 29

Sec. 7. Conclusion.-The whole superstructure of the liability of municipal corporations for negligence and trespasses upon property should be built upon the idea that private property cannot be taken (nor damaged in some States) for public use without just compensation. In support of this view it is argued that "there can be no distinction on principle between the case where a municipal corporation-let us say in prosecuting some public work within its charter powersunlawfully damages my property or injures my person, and where acting for its own purposes and within the general scope of its charter powers, it takes my property. Damaging is a smaller injury than taking, and any principle that will sustain a liability for damaging will sustain a liability for taking."'30 So far as the constitutional rights of the property owner are trespassed upon, it is immaterial whether this results from negligence in the doing of the work, or from a defective plan. In either case the city has violated the constitution, and no good reason is perceived why it should be permitted to protect itself because of a defective plan, however conscientiously it may have been conceived upon the part of the officers or agents who prepared it. Therefore, it appears logical to conclude that in all cases where there has been a dam

27 Hitchins v. Frostburg, 68 Md. 100, 6 Am. St. Rep. 422.

28 Per Elliott, C. J., in Terre Haute v. Hudnut, 11 Ind. 542, 544.

29 Gould v. Topeka, 32 Kan. 485, 493, 49 Am. Rep

496,

30 Article by Judge Seymour D. Thompson 33 Am L. Rev., p. 708.

age to, or taking of, private property by the direct act of the city, liability to private action should lie.

The right of an individual

to the occupation and enjoyment of his premises is exclusive, and the public authorities have no more liberty to trespass upon such property than has a private individual or corporation. The discretion reposed in the authorities by a municipal charter, and the general principles of law applicable, relating to the character of plans, never gives, and never could give, authority to appropriate the freehold of a citizen without compensation, whether it be done through an actual taking of it for streets or buildings, or by flooding it so as to interfere with the owner's possession. His property right is appropriated in the one case as much as in the other. EUGENE MCQUILLIN.

31

St. Louis, Mo.

31 See Rome v. Portsmouth, 56 N. H. 291, approved in Ashley v. Port Huron, 35 Mich. 296, 301.

CRIMINAL LAWS-PLAYING BASEBALL ON SUNDAY - CONSTRUCTION OF STATUTEHABEAS CORPUS.

EX PARTE NEET.

Supreme Court of Missouri, June 30, 1900.

1. The game of baseball is not within the prohibition of Rev. St. 1899, § 2242, providing that every person who shall be convicted of horse racing, cock fight. ing, or playing at cards or games of any kind on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor.

2. One who is imprisoned, under a judgment of conviction by a court of competent jurisdiction, for an act which is not in contravention of any law, may obtain his release on writ of habeas corpus, under Rev. St. 1889, §§ 5375, 5378, providing for the discharge of a prisoner on habeas corpus when no legal cause is shown for the imprisonment.

MARSHALL, J.: This a proceeding by habeas corpus, instituted by the petitioner for the purpose of obtaining his discharge from the custody of the sheriff of Lafayette county, and from his imprisonment in the county jail, where he is held under a warrant of commitment issued by the criminal court of that county upon a conviction before that court "on a charge of playing baseball on Sunday," the information simply charging that the petitioner and others therein named, "on the 4th day of June, 1899, at the county of Lafayette and State of Missouri, did then and there unlawfully play at a game of ball, com. monly called 'baseball,' on the first day of the

week, commonly called 'Sunday,' against the peace and dignity of the State," etc. Among the other persons charged in the information with having played the game of baseball with the petitioner was one R. Vaughan, who was also convicted. He appealed to the Kansas City Court of Appeals, and that court dismissed the appeal on the ground that an appeal would not lie from a conviction upon an information. 3 Mo. App. Rep. 268.

Two questions are presented by this case: First, is it unlawful in Missouri to play a game of baseball on Sunday? and, second, is habeas corpus an available remedy to one convicted and imprisoned for so doing?

1. Section 2242, Rev. St. 1899, is relied on as furnishing support for the conviction in this case. That section is as follows: "Every person who shall be convicted of horse racing, cock fighting, or playing at cards or games of any kind, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor and fined not exceeding fifty dollars." This section (then section 1580, Rev. St. 1879), was construed by the Kansas City Court of Appeals in the case of State v. Williams, 35 Mo. App. 541, to prohibit playing a game of baseball on Sunday. It was conceded that games of baseball are not within the express prohibition of the statute, and it was likewise conceded that "where particular words of a statute are followed by general words, as if, after the enumeration of classes of persons or things, it is added, and all others,' the general words are restricted in meaning to objects of the like kind with those specified." But it was held that the words, "or games of any kind," must be construed to embrace games of baseball, because the statute "was evidently intended to prevent a desecration of the Sabbath, by restraining the doing of those things which are offensive to a Christian community by being done on that day,” and that "the statute was not aiming to prevent the doing of things immoral per se, or the tendency of which is immoral, as the inhibition is not against gambling or betting on the games, but merely against the doing the act on that day, though it be not immoral or tending to immorality." At the same (March) term, 1889, the St. Louis Court of Appeals, in the case of Association v. Delano, 37 Mo. App. 284, loc. cit. 289, held that section 1580, Rev. St. 1879 (now section 2242, Rev. St. 1889), only prohibited "games of chance, or other games of an immoral tendency, and that it does not involve a prohibition of athletic games or sports, which are not of an immoral tendency, but which tend to the physical development of the youth, and are rather to be encouraged than discouraged." It was also held that the general words, "or games of any kind," must be construed to mean games of the same kind as the games specially designated in the statute. It was accordingly held that a contract made by the defendants, as members of the Amateur Athletic Association, with the plaintiff, for the use of the

fair grounds for the purpose of playing athletic games and sports thereon on Sunday, was a valid contract. But, as the decision was in conflict with the decision of the Kansas City Court of Appeals, in State v. Williams, supra, the case was certified to this court. This court held that there is no statute in this State which prohibits athletic games and sports on Sunday, unless section 3854, Rev. St. 1889 (formerly section 1580, Rev. St. 1879, and now section 2242, Rev. St. 1889), does so, and, after citing that section, said: "But these prohibitions are evidently leveled against sports and games that have a demoralizing tendency, and do not extend to mere athletic sports. Besides, this section is penal, and therefore to be strictly construed. Howell v. Stewart, 54 Mo. 400; Fusz v. Spaunhorst, 67 Mo. 256." And then added: "But, further, in this instance the words, 'or games of any kind,' fall under the rule which prescribes that, where general words follow particular ones, they are to be construed as applicable to things or persons of a like nature. State v. Bryant, 90 Mo. 534, 2 S. W. Rep. 836, and cases cited; City of St. Louis v. Laughlin, 49 Mo. 559." The decision of the St. Louis Court of Appeals was approved and affirmed, and while the decision of the Kansas City Court of Appeals, in State v. Williams, supra, was not expressly overruled or disapproved, it was referred to as the basis of the action of the St. Louis Court of Appeals in certifying the case to this court, and therefore the Williams case must be regarded as overruled.

Section 2242, Rev. St. 1899, has been on the statute books of Missouri, in exactly the same words, ever since 1835. Rev. St. 1835, tit. "Crimes and Punishments," art. 8, § 30, p. 209; Rev. St. 1845, ch. 47, art. 8, § 33, p. 405; Rev. St. 1855, ch. 50, art. 8, § 35, p. 631; Gen. St. 1865, ch. 206, § 34, p. 819; Rev. St. 1879, ch. 24, art. 8, § 1580, p. 274; Rev. St. 1889, ch. 47, art. 8, § 3854, p. 919. Playing a game of baseball on Sunday | (or on any other day) could not have been in the minds of the lawmakers when this provision of law was enacted in 1835, for the very simple reason that such a game was wholly unknown to art at that time. The doctrine of ejusdem generis is as rock-ribbed in the law of this State as any principle ever announced. As applied to penal statutes especially, it is only a humane doctrine, and accentuates the wisdom of the fathers when they objected to being punished for offenses which had not been declared to be offenses by the law. It observes the respective rights of the different co-ordinate branches of the government, by requiring the legislature to enact the laws, and the judiciary to enforce, but not create, the laws, not even by construction. Baseball does not belong to the same class, kind, species, or genus, as horse racing, cock fighting, or card playing. It is to America what cricket is to England. It is a sport or athletic exercise, and is commonly called a "game," but it is not a gambling game, nor productive of immorality. In a qualified sense, it is affected by chance; but it is

primarily and properly a game of science, of physical skill, of trained endurance, and of natural adaptability to athletic skill. It is a game of chance only to the same extent that chance or luck may enter into anything man may do. But when chance or luck is pitted against skill and science, it is as fair an illustration of what will result as any test that could be applied.

If the view of the Williams case had been adopted, this statute would have been elastic enough to cover every game that ever was or ever will be invented no matter whether it was harmless, promotive of physical or mental development, or deleterious to both. It would prevent games of chess, backgammon, jacks, authors, proverbs, faro, keno, and poker alike, and when played on Sunday any one would have been as illegal as any other. Such a construction would have curtailed many of the pleasures of many of our people, without elevating them or improving their moral tone. Until the lawmakers expressly provide for such sweeping changes in the lives and customs and habits of our people, it is not proper for the courts by construction to impair their natural rights to enjoy those sports or amusements that are neither mala in se nor mala prohibita-neither immoral, nor hurtful to body or soul. We therefore conclude that there is no law in this State which prevents playing a game of baseball on Sunday, and therefore the defendant is imprisoned for the doing of an act which is not unlawful, and therefore the imprisonment is wrongful.

2. The only remaining question is whether habeas corpus is a proper remedy. The rule must now be regarded as settled in this State that if a person is imprisoned for an act which is not in contravention of any existing law, or if the act under which he is held is unconstitutional, habeas corpus is a proper remedy to restore to him his freedom, of which he has been improperly and illegally deprived. Ex parte Slater, 72 Mo. 102; Ex parte Arnold, 128 Mo. 256, 30 S. W. Rep. 768, 1036; Ex parte O'Brien, 127 Mo. 477, 30 S. W. Rep. 158; Ex parte Craig, 130 Mo. 590, 32 S. W. Rep. 1121; Ex parte Smith, 135 Mo. 223, 36 S. W. Rep. 628. The underlying reason is that an unconstitutional act is no law at all, and that no court has a right to imprison a citizen who has violated no law of the State, but that such act, even if done by a court under the guise and form of law, is as subversive of the right of the citizen as if it was done by a person not clothed with authority, and hence it is the duty of this court, under section 3 of article 6 of the constitution, to discharge him by means of a writ of habeas corpus; this, too, irrespective of any other relief which may be available to him; for it is the very purpose of this writ to restore freedom to those who have been deprived of it without warrant or authority of law. Of course it will be understood that habeas corpus will not be allowed to perform the functions of a writ of error or an appeal, but will

only lie where the imprisonment is absolutely without authority of law, or for an offense which has not been made an offense against the law, or where the act under which he is imprisoned is unconstitutional, and therefore it is no law at all. This is the plain meaning of sections 5375, 5378, Rev. Stat. 1889. For these reasons the petitioner is discharged from custody as prayed. All concur as to first paragraph, and Gannt, C. J., and Sherwood and Burgess, JJ., concur also as to second paragraph. Robinson, Brace and Valliant, JJ., dissent as to second paragraph.

NOTE Construction of Criminal Statutes in Which General Words Follow Particular Words.The first rule to be borne in mind in considering statutes of a criminal or penal nature is that such statutes are to be construed strictly in those parts which are against persons charged with their violation and liberally construed in those parts which are in their favor. Bishop, Stat. Cr., § 193; State v. Bryant, 90 Mo. 535. Moreover, penal and criminal statutes must be definite and certain in their terms, and should not be expanded so as to subject anyone to penalty who is not fairly and reasonably within its language. Such statutes are absolutely non-elastic and no one should be made subject to their provisions by implication. State v. Barr, 39 Conn. 40; Koen v. State, 76 Ill. 294; State v. Schuchmann, 133 Mo. 111. On the other hand, while statutes pertaining to crimes and their punish. ment should be strictly construed, and nothing left to intendment, they should not be so construed as thwart the evident will and intention of those who enacted them, when that intention is plainly and fairly deducible from the law itself. State v. Bishop, 128 Mo. 373; Woodsworth v. State, 26 Ohio St. 196; State v. Holman, 3 McC. (S. Car.) 306.

Another rule of construction more pertinent to the decision in the principal case is the doctrine of "ejusdem generis." It may be stated as follows: Where particular words of a statute are followed by general words, as if, after the enumeration of classes of persons or things, it is added,"and all others"-the general words are restricted in meaning to objects of the like kind with those specified. Or as Lord Ten. terden expressed it in the leading case of Sandiman v. Breach, 7 B. & C. 96, "where general words follow particular ones the rule is to construe them as appli. cable to persons or things ejusdem generis." This rule is of wide application and is firmly settled in the law. In the case of State v. Bryant, supra, a gun and target, although used for the purpose of betting, was held not to be within the provisions of the following statute: "Every person who shall keep any table or gambling device, called faro bank, E. O., roulette, keno, or any kind of gambling device designed for the purpose of playing any game of chance for money or property, shall," etc. The court said: "It is very evident that the words 'or other gambling device' employed in this section, were only designed to apply to such gambling devices as are of a kindred nature and similar kind to those mentioned." A familiar example of this rule is found in the case of Reg. v. Whitnash, 7 B. & C. 596. A statute of parliament provided that "no trademan, artificer, workman, laborer, or other person whatsoever," should exercise his ordinary calling on the Lord's day. It was held, that the words "other person whatsoever" did not include a farmer, because not of like denomination with those specifically named; Bayley, J., remarking that, if all persons were meant there was no need of

the specific enumeration. In construing the penal code of New York which prohibited all shooting, hunting and playing on the first day of the week, it was held by the supreme court that playing baseball in an open park on Sunday was not such playing on Sunday as was prohibited by statute. State v. Dennim, 35 Hun, 327.

was:

In the case of State v. Williams, 35 Mo. App. 541, overruled by the court in the principal case, the doctrine of "ejusdem generis" while recognized is held subject to limitations. On a statement of facts identical with those in the principal case the court reached an opposite conclusion, and held, that playing at "baseball" came within the provisions of "playing at games of any kind." After stating and recognizing the general rule of ejusdem generis, just announced, the court said: "But the object of this rule must not be overlooked; its object is, not to defeat, but to ascertain, and carry out, the legislative intent. Where, therefore, the application of the rule would be in the face of the evident meaning of the legislature, it should not be applied." Several other cases might be cited to show the limitation to which this rule is subject. In Woodsworth v.State,26 Ohio St.196, the statute "That if any person shall abuse any judge or justice of the peace, resist or abuse any sheriff, constable or other officer, in the execution of his office," etc. Held, that the supervisor of a township was covered by the words, "or other officer." In State v. Holman, 3 McCord (S. Car.), 306, the statute recited that whoever shall be convicted of knowingly packing into any bag or bale of cotton any stone, wood, trash or any matter or thing whatsoever," etc. Held that, under this statute defendant was liable for "packing and pouring" an "undue quantity of water" into a bale of cotton. One of the strongest and most interesting cases in this direction is that of Commonwealth v. Percavil, 4 Leigh (Va.). The statute in this case read as follows: "Any person who shall cut down any tree growing on the land of another, or destroy or injure any building, fence or other improvement, or who shall carry away or destroy any tree or other timber, or property, real or personal," etc. Defendant was convicted under this statute for killing hogs belonging to another. In keeping with these decisions the Supreme Court of Alabama, in Foster v. Blount, 18 Ala. 687, said that the rule here discussed, and which was invoked in each of the cases above cited, is a rule of construction to ascertain the intention of the legislature, and when that is clear, the courts should be bound by it. "If we were to restrict the meaning of general words, when the framers of the law, by the use of them, intended to embrace other persons or things not embraced by the particular words, we annul the law instead of executing it."

Habeas Corpus as a Remedy to Test the Constitutionality of a Criminal Statute under which a Person is Arrested or Confined.-There was formerly much conflict of opinion and authority whether a court in habeas corpus proceedings could investigate and question the constitutionality of a statute under whose provisions a person is arrested and confined. In many such cases, if that were the only point involved, the court would remand the prisoner. Ex parte Harris, 47 Mo. 164; Platt v. Harrison, 6 Iowa, 79; Matter of Underwood, 30 Mich. 502; Ex parte Fisher, 6 Neb. 309; In re Callicott, 8 Blatchford (U. S.), 89. In Ex parte Harris, supra, the reason of these decisions is succinctly stated. A man was arrested for violating the law prohibiting the introduction of Texas cattle into the State during certain periods of the year. He

brought habeas corpus proceedings in the supreme court. Held that where one has been arrested and detained or legal process by a court having jurisdic tion of the person and the offense and is in custody of the proper officer, and by virtue of a provision of the law, the court will not, on a writ of habeas corpus, inquire into the constitutionality of the law under which he was arrested. He should test the validity of that question by means of a trial in the appropriate court. The court said: "Whether the legislature exceeded its powers in the passage of the law sought to be passed upon we will not inquire in this pro ceeding. The petitioner can have his trial, and if he is dissatisfied with the verdict and judgment, and desires to test the validity of the law, the courts are open to him, as they are to all other persons charged wifh the violation of the laws of the land. Admit this proceeding and then every person charged with committing an offense of any kind or description whatsoever, instead of standing his trial and litigating the matter as the law directs, can come here and ask our advice as to the validity of the law under which he is arraigned. Such a precedent cannot be estab ished."

However, since the decision of the United States Supreme Court in Ex parte Siebold, 100 U. S. 371, the trend of authority has been overwhelmingly in favor of extending the advantages of habeas corpus proceedings to cases of this character. Whitcomb's Case, 120 Mass. 118; Ex parte Smith, 135 Mo. 223; In re Payson, 23 Kan. 757; Ex parte Rollins, 80 Va. 314; Ex parte Mato, 19 Tex. App. 112. In Ex parte Siebold, supra, it was said: "An unconstitutional law is void and is as no law. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment. "The real reason, however, for this later trend of the authorities is, undoubtedly, the irresistible attachment of the people to the full benefits afforded by the "greatest of all writs," that of habeas corpus. This proceeding is a right which the people guard with exceptional jealousy and the interposition of legal quibbles or technicalities is not permitted to curtail any of its inestimable privileges. Being the bulwark of individual liberty, a most liberal construction is insisted upon with a view of enlarging rather than restricting its operation. But the legal reasons assigned by the courts for this extension of the right of habeas corpus is that a court has no jurisdiction to confine a person under an act that is unconstitutional, and, therefore, vold. Lack of jurisdiction, of course, is one of the original and strongest grounds for the issuance of the writ of habeas corpus. This position of the courts is well stated by Judge Sherwood in Ex parte Smith, supra: "If it be true, as must be true, that an unconstitutional law is no law, then its con. stitutionality is open to attack at any stage of the proceedings, and even after conviction and judgment; and this upon the ground that no crime is shown, and, therefore, the trial court had no jurisdiction, because its criminal jurisdiction extends only to such matters as the law declares to be criminal; and if there is no law making such declaration, or what is tantamount thereto, if that law is unconstitutional, then the court which tries a party for such an assumed offense transcends its jurisdiction, and he is consequently entitled to his discharge, just the same as if the non jurisdiction of such court should, in any other manner, be made apparent."

A. H. ROBBINS.

JETSAM AND FLOTSAM.

QUOTIENT SENTENCES.

In McAnally v. State, 57 S. W. Rep. 832, decided in the Court of Criminal Appeals of Texas, it appeared that a jury having determined the guilt of the defend. ant of burglary, but being unable to agree offhand on the term of his punishment, it was resolved that each juror should put down his proposed period of imprisonment, and that the figures should be added and then divided by twelve. This resulted in a proposed term of five years and nine months, whereupon one of the jurors moved that it be made six years, which was done. It was not shown that the jury had agreed to be bound by the result of the "quotient" experiment, nor in fact, as it appeared, were they so bound. It was held that the verdict should not be set aside. The ruling of the court in this case is clearly correct in view of the fact that the quotient result was not, but a longer term of imprisonment actually was, fixed by the jury. The rule has been laid down that "the method of arriving at the amount of the fine, or of damages when they are unliquidated, or the length of the term of imprisonment in criminal cases, whereby each juror puts a number into a hat, and all the numbers so put in are added up, and the sum divided by twelve, vitiates the verdict, when the jurors agree in advance to abide by the result. But it is otherwise when the amount which each juror puts into the hat is a mere proposition, and there is no previous agree. ment to abide by the result." 2 Thomp., Trials, sec. 2601.

Of course, in some cases, this distinction may be little more than a technical one. Still, it is well to preserve the rule-as liberty to violate it might lead to serious abuses-that a verdict must not be the result of lot or hazard, and the principal case illustrates that the merely tentative use of the quotient method may be a very different thing from agreeing in advance to be bound by it. It may be an aid to more practical and more definite deliberation if the jurors resort to such expedient to arrive at a presumptive figure. Indeed, some such method of getting a starting point must frequently be a necessity where there is wide divergence of view upon what at best can be only a matter of opinion.

A reflection is, however, suggested that in criminal cases it is, on the whole, better to leave the discretionary fixing of a term of imprisonment, within the limits prescribed by law, to the trial judge rather that confide such function to the jury.

On January 10, 1900, in criticising a bill that had been introduced in the federal house of representatives, providing generally that jurors rendering verdicts of guilt upon indictments for felony not punishable by death, should assess the punishment of persons so convicted, and that the penalty so assessed should be imposed, unless the court should prescribe a lesser one, we used the following language:

"The attitude of the juror is necessarily to 8 considerable extent one of compromise. The 'quotient verdict' disposition would inevitably crop out in the fixing of criminal sentences. Indeed, it would doubtless often be carried so far as to enable a single obstinate juror to bring his associates to an agreement on the lightest penalty within their power to inflict. Jurors of average ability and conscientiousness, who would not join in the absurd. ity of an absolute acquittal, might still make very substantial concessions in order to avoid a mistrial. If it be suggested that such considerations involve an