Defendant was due the affirmative charge and its refusal was error. 6 Words and Phrases, First Series, 5741; Osborn v. State, 52 Ind. 526; Fahnestock v. State, 102 Ind. 156, 1 N.E. 372; State v. Brow, 64 N.H. 577, 15 A. 216; Carpenter v. People, 8 Barb. (N.Y.) 603; State v. Stoyell, 54 Me. 24, 89 Am. Dec. 716. W. J. Wynn and Ralph E. Parker, both of Birmingham, for appellee.

the minds of the jury that the decree of divorce had been granted on the ground of adultery between the defendant and Waldron. Indeed, the fact is that the counsel after referring the jury to the evidence which was not in the record stated to them, in effect, that it established the fact, or authorized the fair inference that the decree of divorce had been rendered on the ground of adultery with Mrs. Alexander, and therefore conclusively established the right of the plaintiff to recover in the present case. It is unnecessary to say that all this is ground for reversal, unless its legal effect be in some way overcome. It is elementary that the admission of illegal evidence, over objection, necessitates reversal, and it is equally well established that the assertion by counsel, in argument, of facts, no evidence whereof is properly before the jury, in such a way as to seriously prejudice the opposing party, is, when duly excepted to, also ground therefor. Farman v. Lanman, 73 Ind. 568; Brow v. State, 103 Ind. 133; Bullock v. Smith et al., 15 Ga. 395; Dickerson v. Burke, 25 Ga. 225; Lloyd v. H. St. J. Railroad, 53 Mo. 509; Wightman v. Providence, 1 Cliff. 524; Martin v. Orndorff, 22 Iowa 504; Tucker v. Henniker, 41 N.H. 317; Jenkins v. N.C. Ore Dressing Co., 65 N.C. 563; State v. Williams, 65 N.C. 505; Hoff v. Crafton, 79 N.C. 592; Yoe v. People, 49 Ill. 410; Saunders v. Baxter, 53 Tenn. 369. The foregoing conclusions are not disputed by the defendant here, but she seeks to avoid their application as follows: First, by denying the right of the plaintiff in error to raise the question, upon the ground that no exception was reserved to the misuse by counsel of the evidence which is complained of; secondly, by asserting that the misuse did not take place, and that the assertion thereof in the bill of exceptions is erroneous and "inadvertent;" thirdly, by admitting that use was made of the various items of evidence mentioned in argument, and contending that this was not a misuse, because the evi

F.E. McCurdy, for appellant. The knowledge of the forgery must be brought home by positive proof before conviction can stand on uttering a forged instrument and that this must be proven beyond a reasonable doubt and is not a matter of inference. 2 Bishop, Crim. Law, pp. 344 and 345; Great Western Elevator Co. v. White, 118 Fed. 406; United States v. Great Northern R. Co. 214 F. 46; Williams v. State, 23 Tex. App. 70[ 23 Tex.Crim. 70], 3 S.W. 661; Schurzer v. State, 25 S.W. 23; Brow v. State, 2 N.E. 296; Perry v. Edwards, 44 N.Y. 223; United States v. Cameron, 3 Dak. 132; Territory v. Gutierrez, 84 P. 525; DeRose v. People, 171 P. 359. P.O. Sathre, Attorney General, and A.M. Kuhfeld, State's Attorney, for respondent.

Our courts have consistently condemned heated and passionate arguments by attorneys calculated to inflame the minds of the jury against the prisoner, where not justified by the evidence. See Middleton v. State, 80 Miss. 393, 31 So. 809; Long v. State, 81 Miss. 448, 33 So. 224; Harwell v. State, 93 So. 366; Strong v. State, 98 So. 806; Evans v. State, 54 So. 154; Martin v. State, 63 Miss. 505; Brow v. State, 103 Ind. 133; People v. Dane, 59 Mich. 550; House v. State, 9 Tex. App. 567[ 9 Tex.Crim. 567]; Sassee v. State, 68 Wis. 530; Stone v. State, 22 Tex. App. 185[ 22 Tex.Crim. 185]; Note to Donald v. People, 126 Ill. 150, 9 Am. St. Rep. 547; Hampton v. State, 88 Miss. 257, 40 So. 545, 117 A.S.R. 740; Fielding v. People, 158 N.Y. 542, 70 A.S.R. 493, 2 R.C.L. 416, and Note 18. We insist that because of the error on the part of the court in permitting the county attorney, in his argument to the jury, to use the language set forth in the bill of exceptions, this case ought to be reversed and remanded for a new trial.

The defendant should first have requested the court to instruct the jury to disregard the remarks. If he had done this and the court had refused, an exception to such refusal would have raised the question. If the court had complied with the request the incident would have been closed, for it is to be presumed that the jury would have obeyed the instructions of the court. 12 Cyc. 585, c; Com. v. Worcester, 141 Mass. 58; Drew v. State, 124 Ind. 9; Ethridge v. State, 124 Ala. 106; Brow v. State, 103 Ind. 133; State v. Regan, 8 Wn. 506; Wilson v. United States, 149 U.S. 60. For the foregoing reasons the defendant's exceptions are overruled, and the case is remitted to the Superior Court for sentence.

This is a pandering statute. The great weight of authority holds that the pandering statutes are not violated when, as here, one merely obtains or attempts to obtain sexual favors for himself. See, e.g., State v. Oge, 227 Iowa 1094, 290 N.W. 1 (1940); State v. Brow, 64 N.H. 577, 15 A 216 (1888); Hewitt v. The State, 71 Tex Crim 243, 158 S.W. 1120 (1913); Annotation, 74 ALR 311, 314-19 (1931). It may well be that the defendant by his acts was guilty of disorderly conduct or some other offense — nevertheless, there was no proof of the crime of pandering.

" In the case of Brow v. State, 103 Ind. 133, 2 N.E. 296, the prosecuting attorney said: "I know personally the saloon keeper in this case, and he is guilty of this, and I am sure of other crimes."