In his dissenting opinion Judge Harper has collated a large number of cases wherein the argument of prosecuting attorneys have been condemned by this court, and some cases reversed because thereof. In a great number of them reversals were not had alone because of such condemned arguments, but they were reversed on other grounds, and what was said of the arguments was more in view of another trial and as a caution to prosecuting attorneys than otherwise.
He has also copied some portions of the opinions of the judges in some of them, and ingeniously contends they apply to the question in this case. But we think what is quoted as said by the judges, when taken in connection with the facts and argument they were discussing in those cases, are inapplicable to this case. It would be a useless waste of time to point out the various distinctions and inapplicability of these cases.
It is unfortunately true the judges in writing opinions have not always had and kept in mind the proper rules applicable in the discussion and condemnation as reversible arguments of prosecuting attorneys. Because of this, some arguments have been condemned as reversible in connection with other reversible errors (and sometimes perhaps without any other reversible error) which should not, and, otherwise, would not, have been.
On the other hand an equally large number of cases as Judge Harper has collated, could be collated, wherein this court has held arguments of prosecuting attorneys objected to, were not cause for reversal, and some of them, apparently at least, much more hurtful to the accused than the argument in this cause could have been. But we see no necessity at this time of collating them.
The rules on this subject are clearly and distinctly laid down in such cases as Bass v. State, 16 Texas Crim. App., 62; Pierson v. State, 18 Texas Crim. App., 524; House v. State, 19 Texas Crim. App., 227; Tweedle v. State, 29 Texas Crim. App., 586; Young v. State, 19 Texas Crim. App., 536; Kennedy v. State, 19 Texas Crim. App., 618; Hatchell v. State, 47 Tex. Crim. 380; Felder v. State, 59 Tex.Crim. Rep., and an innumerable number of other cases following these, and to the same effect, and down to this very date. *Page 461
We correctly stated how all this matter occurred before the jury in the opinion of Judge Prendergast when first written by him as a dissenting opinion. It is unnecessary to again state it, or further discuss the question.
The motion for rehearing is overruled.
Overruled.