For example, in Connor v. State, 225 Md. 543, 554, 551, 171 A.2d 699, 705, 703 (1961), this Court held that a statement was a dying declaration where the declarant “entreat[ed] that someone take care of [her] baby [and] called for a priest before making the” statement. Similarly, in Meno v. State, 117 Md. 435, 437, 83 A. 759, 760 (1912), this Court held that a statement was a dying declaration where a doctor told the declarant of her “impending death,” and the declarant nodded in response to the question “Do you realize that you are going to die?” Likewise, in Worthington v. State, 92 Md. 222, 242, 241, 48 A. 355, 358 (1901), this Court held that a statement was a dying declaration where the declarant “constantly declared she expected to die” and “beg[ed her physician] to save her[,] as she was dying.”
For example, in Connor v. State, 225 Md. 543, 554, 551, 171 A.2d 699, 705, 703 (1961), this Court held that a statement was a dying declaration where the declarant “entreat[ed] that someone take care of [her] baby [and] called for a priest before making the” statement. Similarly, in Meno v. State, 117 Md. 435, 437, 83 A. 759, 760 (1912), this Court held that a statement was a dying declaration where a doctor told the declarant of her “impending death,” and the declarant nodded in response to the question “Do you realize that you are going to die?” Likewise, in Worthington v. State, 92 Md. 222, 242, 241, 48 A. 355, 358 (1901), this Court held that a statement was a dying declaration where the declarant “constantly declared she expected to die” and “beg[ed her physician] to save her[,] as she was dying.”
The prosecutor should make no remarks in the presence of the jury calculated to unfairly prejudice the jury against the accused and to deprive him of a fair trial. It is unquestionably wrong for the prosecutor at any point in the trial, when in the presence of the jury, to refer to any matter not testified to by a witness or disclosed by the evidence in the case, including during an opening statement, during the trial, and in closing argument. Newton v. State, 147 Md. 71, 92, 127 A. 123, 132 (1924); Meno v. State, 117 Md. 435, 440-43, 83 A. 759, 761 (1912). Wilhelm v. State, 272 Md. 404, 412, 326 A.2d 707, 716 (1974); Clarke v. State, 238 Md. 11, 19-20, 207 A.2d 456, 460-61 (1965); Ott v. State, 11 Md. App. 259, 266, 273 A.2d 630, 634-35, cert. denied, 262 Md. 748 (1971).
In two cases involving prosecution of doctors for illegal abortions, for instance, the Court of Appeals held that evidence of prior conduct of like nature should have been excluded in one case but was admissible in the other. In Meno v. State, 117 Md. 435, 440 the evidence was held to be inadmissible, although its erroneous admission in the case was harmless: "The State attempted to prove by the witness Ludi, that the accused had told him that he had performed operations on or treated other girls as showing a familiarity on the part of the traverser with what could be done to rid a woman of a child.
It is fundamental to a fair trial that the prosecutor should make no remarks calculated to unfairly prejudice the jury against the defendant. Meno v. State, 117 Md. 435 [, 83 A. 759 (1912)]; Holbrook v. State, 6 Md. App. 265 [ 250 A.2d 904 (1969)]. And it is unquestionably wrong for the prosecutor in his argument to the jury to refer to any matter not testified to by the witness or disclosed by the evidence in the case.
Whether it be in opening statement or in summation, "appeals to class prejudice or to passion are improper and may so poison the minds of jurors that an accused may be deprived of a fair trial," Wood v. State, 192 Md. 643, 652, 65 A.2d 316, 320 (1949); "the State's Attorney has an obligation to refrain from making any remark — within the hearing of the jury — which is likely or apt to instigate prejudice against the accused," Contee v. State, 223 Md. 575, 584, 165 A.2d 889, 894-95 (1960), 229 Md. 486, 184 A.2d 823 (1962), cert. denied, 374 U.S. 841 (1963); or, in derogation of the defendant's right to a fair trial, is "calculated to unfairly prejudice the jury against the defendant." Newton v. State, 147 Md. 71, 92, 127 A. 123, 132 (1924); Meno v. State, 117 Md. 435, 441, 83 A. 759, 761 (1912). Of course, not every ill-considered remark made by counsel, even during the progress of the trial, is cause for challenge or mistrial.
But it is obvious that admission of testimony as to the identity of the man or men with whom she had sexual intercourse would have raised a collateral issue and diverted the attention of the Court from the real issue in the case. Meno v. State, 117 Md. 435, 439, 83 A. 759. We, therefore, find no error in this ruling. VI.
And character is so vital and important a factor in the investigation of crime, that it is always easier to believe that a vicious and dangerous criminal committed a crime of the character under investigation here, than to believe that one whose character was unimpeached had committed it, and yet the law requires that the quality and quantity of evidence required to convict shall be the same in either case, because unless he himself puts it in issue, the character of the accused in such a case as this cannot be attacked or impeached, except in so far as the relevant and material evidence has that effect. In dealing with the exceptions relating to the admission of evidence of unrelated crimes it may be assumed as a general rule that one crime cannot be proved by proof of another (16 C.J., p. 586; Underhill, Cr. Ev., par. 87; Wharton, Cr. Ev., par. 30; Avery v. State, 121 Md. 229; Meno v. State, 117 Md. 435), except for the purpose stated in my reference to the first three exceptions. That rule is so firmly established and so generally recognized that any extended discussion of the plain and obvious reasons upon which it rests seems uncalled for if not unwarranted.
" The syllabus to Meno v. State, 117 Md. 435 ( 83 A. 759), reads thus: "In a prosecution for killing deceased by means of an abortion, evidence that accused told witness that he had performed similar operations on other girls was inadmissible."
We think the Court's instruction in this case was calculated to have prejudiced the jury in its finding and to prevent a fair and impartial verdict in the case, and without discussing it further, we hold, that it was reversible error. Butler v. State, 59 Southern Reporter, 845; Rosenkovitz v. United Ry. Co., 108 Md. 316; Meno v. State, 117 Md. 435; United Ry. v. Carneal, 110 Md. 232; Guy v. State, 96 Md. 696; State v. Dick, 60 N.C. 440; Whitley v. State, 38 Ga. 50; Crawford v. State, 44 Ala. 45. The remaining question, that is necessary to be considered arises upon a motion to quash the indictment.