On the original hearing this case was reversed and remanded, Presiding Judge Prendergast dissenting. On State's motion for rehearing the original opinion was overruled and the case affirmed, this writer entering his dissent. Appellant has now filed a motion for rehearing, and I wish to state more fully why I can not agree to an affirmance of the case, and my reasons for thinking such error was committed as should result in a reversal of the case.
In the original opinion, I held that the court committed no error in admitting the testimony of Cook and Middleton as to what they claimed were the dying declarations of deceased. While my brethren express no opinion on this question, I suppose they agree with me, as they affirm the case. However, appellant earnestly insists we were in error in so holding and says there is no testimony showing that deceased was sane at the time he made such declarations, and contends that the testimony would rather suggest that deceased was unbalanced and deranged mentally. In this view I can not concur. It is true the record disclosed deceased, a few days before the homicide, had behaved very unseemly, had cursed and abused his wife, and threatened at one time to kill and burn his wife, but his wife attributed this to meanness and drinking. While the question was not asked the witnesses: "Was deceased sane at the time you were talking with him?" yet they detail a conversation and acts and conduct of deceased, from which no reference could be drawn but that he was sane and rational at the time he made the declarations testified to. As said by Mr. Branch, in his work on Criminal Law, in section 485: "It is enough if it satisfactorily appear in any mode that they were made under proper sanction whether it be directly proved by express language of the declarant or be inferred from his conduct and other circumstances in the case, all of which are resorted to in order to ascertain the state of declarant's mind," citing Morgan v. State, 54 Tex. Crim. 549, and a number of other cases. While, as contended by appellant, it is true the State did not call the attending physician, Dr. Kilpatrick, but relied on the testimony of a kinsman of deceased, Will Cook, and a neighbor, George Middleton, not only to prove the dying declarations, but also the facts that would render the statement admissible, and while we held, and are still of the opinion, that the testimony of these two men was sufficient to render the declarations admissible, yet such facts, in our opinion, but emphasize the error in permitting the district attorney to strengthen and lend additional weight to the testimony of these two men by stating in his closing argument what the deputy sheriff would have testified to had not appellant interposed an objection to his testimony. As stated, *Page 462 in other words, the objection of appellant to the testimony of Cook and Middleton as to the alleged dying declaration went to the weight to be given this testimony and did not render it inadmissible. Appellant's counsel in their argument to the jury took this view and were contending that but little weight should be given to this testimony by the jury, or, as stated by the court in the bill prepared by him: "Defendant's counsel in course of his argument attacked the sufficiency and weight of the testimony of the witnesses Cook and Middleton as to deceased's alleged dying declaration and argued to the jury that these witnesses were more or less interested, that Cook was a kinsman and was prejudiced against the defendant and that the testimony of these two witnesses was fragmentary in character and it necessarily did not show that the deceased had made the statements under a consciousness of impending death and with the seriousness which should attend such statement; that they were made in the course of conversation with his relatives and friends and under circumstances which show that his mind was inflamed by passion against defendant and that he was giving vent to his feeling rather than making a deliberate statement of the particulars and that the State had not offered the testimony of the witness Dr. Kilpatrick to show that deceased was in such condition as to make his statement a dying declaration, and that under these circumstances the jury could not give to the declarations as testified to by these witnesses that high degree of credit to which dying declarations are entitled."
When appellant's counsel had made this argument, the force of it not only apparently impressed the jury, but impressed counsel for the State, and State's counsel became fearful that the jury would give but little weight to this testimony admitted under the predicate they had laid, and circumstances in the case and to strengthen this testimony and cause the jury to give it added weight, they go outside the record and state what they could have proven by a deputy sheriff as to what deceased said on another and different occasion, if appellant had not objected. Or, to put it in the language of the trial court:
"Thereafter the district attorney, in his closing argument to the jury, called attention to the objection of defendant's attorney to the dying declaration of deceased as testified to by Cook and Middleton, and in a burst of passion and eloquence, said: `They tell you that these are not dying declarations, but at no time did the deceased alter or in any manner change the declarations and statements made by him to Cook and Middleton immediately after the shooting. He did not make any contrary statements to J.D. Hamilton, who brought him from Rockdale to Cameron on the train. He did not make any contrary statements toBen Nabours at the jail. For, if he had done so, it could havebeen proven by Ben Nabours at a time when deceased waspractically dying and when the death gurgles were in his throat, and about an hour prior to his death; and if the deceased madeany such contrary statements different from what he made to Cookand Middleton, then the reason it is not because you (pointing todefendant's attorney) *Page 463 have objected to it.'" (Italics ours.) In what more emphatic language could the district attorney have told the jurors that, if counsel for appellant had not objected to Ben Nabours testifying, he would have proven by him the same testimony as he had proven by Cook and Middleton? State's counsel had called Ben Nabours to the witness stand and tried to make this proof. The court had sustained appellant's objection and would not permit Nabours to testify, for the reason that Dr. Best, who was attending deceased at that time, made it apparent that deceased did not then appreciate that he was in a dying condition and had no hope of recovery. This was twenty-four hours after the statement Cook and Middleton claim had been made to them. State's counsel must have appreciated the fact that the jury under such circumstances would give but little weight to the dying declarations testified to by Cook and Middleton, and without that statement there would be no evidence to justify a conviction for murder, but the testimony and all the testimony outside of that declaration, would only justify a conviction for manslaughter, if in fact the jury would not find appellant justified under his plea of self-defense.
The writer has searched the authorities, and in his opinion has found no case that would justify a holding that such improper conduct, statement and argument of the district attorney would not present reversible error, where the person on trial is found guilty of the higher grade of offense and more than the minimum punishment assessed.
As said by Judge Hurt, in Parks v. State, 35 Tex. Crim. 382 : "It is always within the province of counsel, for either the State or the defendant, to fully cover all the field authorized by the testimony elicited on the trial, and to draw therefrom all legitimate deductions, and to explain the same with argument and illustration; and we would not be understood as in anywise placing a limit to legitimate and proper argument to be indulged in by counsel, either for the State or the defendant. There are barriers, however, that can not be passed; and, when it is made to appear to us that remarks have been used outside the evidence in the case, especially of a denunciatory character, such as are calculated to inflame the minds of the jury against the defendant, and more especially when it is shown that these remarks were used in the closing argument, with no opportunity to reply on the part of the defendant, so abused, it is the duty of this court to interfere." See also Thompson v. State,33 Tex. Crim. 472; Conn v. State, 11 Texas Crim. App., 390.
In Robbins v. State, 83 S.W. Rep., 690, Judge Henderson said: "Bearing in mind that there was no evidence whatever of this, and that none could have been introduced (as in this case) it simply demonstrated how the district attorney attempted to evade the law. . . . It occurs to us that such conduct, even though the court instructed the jury to disregard such argument, would be cause for reversal. So much of this character of argument was calculated to thoroughly poison the minds of the jury against appellant as a man of the most base and *Page 464 vicious character, and not only tend to his conviction, but also to increase his punishment. Under the circumstances, it was impossible for the court to withdraw the dagger and heal the wound inflicted at the same time. Rutherford v. State, 67 S.W. Rep., 100."
In Green v. State, 17 Texas Crim. App., 395, Judge Willson said: "It was improper for counsel for the prosecution in the concluding argument to state if defendant's step-daughter had been examined as a witness she would have testified to certain facts. Such statements are not warranted by the evidence; was not legitimate argument, and was not justified by anything said by counsel for defendant in addressing the jury." See also Lawrence v. State, 12 Texas Crim. App., 591.
In Nalley v. State, 28 Texas Crim. App., 387, Judge White said: "Even if the prosecuting officer could have proved what he stated, such testimony would have been clearly inadmissible against defendant unless he had been directly connected with the matter. Favors v. State, 20 Texas Crim. App., 155; Marshall v. State, 5 Texas Crim. App., 273. There being no proof that these overtures to the witness were made by the authority or with the knowledge of the accused, such statement by the district attorney was illegal and unjust, and was highly calculated to prejudice the accused. Barbee v. State, 23 Texas Crim. App., 199. Anything Sam Nalley, the brother, might have done in the matter, in the absence and without the knowledge of defendant, was most clearly inadmissible against and could not be binding upon him (Martin v. State, 25 Texas Crim. App., 557) and afforded no reasonable presumption or inference pertinent to the issue in the case for which defendant was on trial, and the court should have so instructed the jury. Tayor v. State, 27 Texas Crim. App., 463. `No improper means should be resorted to to prejudice the minds of the jury against the defendant in the remotest degree. No testimony should be offered on the part of the prosecution that is not relevant and legal. No remarks should be made by counsel for the State which are not fully warranted by the evidence.' Gazley v. State, 17 Texas Crim. App., 267. That the course of the district attorney in this matter was calculated to prejudice the rights of defendant is, we think, manifest. How far he has been prejudiced, in the absence of any attempt upon the part of the court to obviate and avert the prejudice, it is impossible to tell. The law demands a fair, impartial and legal trial. For this apparent wrong done the defendant in the trial below, the judgment is reversed and cause remanded."
In Exon v. State, 33 Tex.Crim. Rep., Judge Simkins sharply criticises district attorneys for stating what could have been proven by a witness had the court not excluded the testimony. He says: "Now the evidence was excluded by the court, but the district attorney informed the jury that the entire grand jury would have sworn to the fact that Mrs. Exon stated she saw her husband and daughter in a compromising position. There can be no question as to the importance of this testimony. The statement of Mrs. Exon before the grand jury *Page 465 would, therefore, be naturally taken by the jury to be strongly corroborative of her daughter's testimony," and the case was reversed.
In Clark v. State, 23 Texas Crim. App., 260, Judge Willson said: "Counsel for the State, in his closing argument, alluded to certain testimony offered by the State, and which had been rejected by the court, and stated he could have proven certain facts by certain testimony had not the defendant interposed objections. This was not legitimate argument, was injurious error, and should have been promptly and emphatically condemned by the court, and its injurious tendency, so far as possible, removed from the minds of the jury." And in commenting on improper testimony being injected into the case in the district attorney's closing argument, Judge Willson said in Tillery v. State, 24 Texas Crim. App., 251: "These matters were wholly foreign to the case on trial, without any support in the evidence and were calculated to operate on the minds of the jury prejudicially to the defendant. These improper remarks, if there was no other apparent error in the record, would justify, if not demand, a reversal of the case."
Judge White so announces in Fuller v. State, 30 Texas Crim. App., 559; Judge Simkins, in Weatherford v. State, 31 Tex. Crim. 530; Judge Henderson, in Beardon v. State, 46 Texas Crim Rep., 144, and when Judge Ramsey succeeded that learned justice, he, in the case of Davis v. State, 54 Tex.Crim. Rep., reviewed the authorities in this State and laid down the rule when improper argument will be cause for reversal. After discussing the authorities he says: "And it has been held that, where the remarks of the prosecuting attorney in argument were excepted to, but no charge in regard to them was asked, no error is presented. This language has been so frequently used by this court that it is not singular that the learned trial judge seemed to attach much importance to the fact that no charge was asked by counsel for appellant instructing the jury to disregard the improper argument objected to. We think, however, the true rule in respect to this matter may be thus stated, that unless the remarks of counsel for the State are obviously of a character to impair the rights of the defendant or prejudice his case before the jury, such remarks, though improper, will not be considered for reversal unless a charge was asked and refused and exception reserved (Lancaster v. State, 36 Tex.Crim. Rep.), and that it follows as a necessary corollary from this doctrine that where the improper argument is of such a grave character as to render it obviously injurious and hurtful, and the matter is properly preserved by bill of exceptions, that the fact that no special charge was asked instructing the jury to disregard same, will not of itself deprive the appellant in a proper case, of reversal of a judgment of conviction." And he applies it to a case wherein were discussed statements of extraneous facts, as in this case.
In Taylor v. State, 50 Tex.Crim. Rep., Judge Brooks said: "It is true no special charges were asked, but, nevertheless, in the light of this record this argument is so highly prejudicial as to exclude every *Page 466 other reasonable hypothesis then that it was prejudicial to the rights of appellant. It follows, therefore, that the court erred in not granting a new trial to appellant on account of the argument and statements of the county attorney." Powell v. State, 70 S.W. Rep., 218, is another case wherein Judge Brooks reversed the case solely because of improper remarks, and they were deemed so hurtful in that case that the case was reversed even though the court instructed the jury not to consider the remarks.
Mr. Branch, in his work on Criminal Law, section 62, lays down the rule: "Error for State's counsel to get before the jury in argument a fact which he would not be entitled to prove and the effect of which is damaging to defendant," citing Jenkins v. State, 49 Tex.Crim. Rep.; Rodriquez v. State,58 Tex. Crim. 275, 125 S.W. Rep., 404; McKinley v. State,52 Tex. Crim. 182; Askew v. State, 54 Tex.Crim. Rep.; Baughman v. State, 49 Tex.Crim. Rep.; Coleman v. State,49 Tex. Crim. 82; Cline v. State, 71 S.W. Rep., 23; Turner v. State, 39 Tex.Crim. Rep.; Battles v. State, 53 Tex. Crim. 202; Brice v. State, 37 Tex.Crim. Rep.; Pollard v. State, 33 Tex.Crim. Rep.. Many other cases could be cited written by the learned judges who have preceded the writer on the bench, and since he has been honored with this position he has endeavored to follow the rules of law as established by them in this, as in other instances.
In the recent case of Bullington v. State, 78 Tex. Crim. 187, 180 S.W. Rep., 679, the writer had occasion to express his views in a case wherein counsel for the State in argument had injected into the case evidence that was not in the record, and we held it presented reversible error, even though no special charge was presented in regard thereto. In that case we said: "The rule is that if the remarks are of such character that instructions not to consider same would not remove from the minds of the jury the prejudicial and harmful effect of the argument, it will present error even though no written charge was requested." And such rule apparently received the approval of all members of the court, and such is the rule, I think, the court has been following since he has been a member of the court. See Harwell v. State, 61 Tex.Crim. Rep.; Clements v. State,61 Tex. Crim. 161; Coffman v. State, 62 Tex.Crim. Rep.; Paris v. State, 62 Tex.Crim. Rep.; Burrell v. State,62 Tex. Crim. 635; Johnson v. State, 63 Tex.Crim. Rep.; Davis v. State, 64 Tex.Crim. Rep.; Grimes v. State,64 Tex. Crim. 64; McMillan v. State, 65 Tex.Crim. Rep.; Rushing v. State, 62 Tex.Crim. Rep., 137 S.W. Rep., 372; Williams v. State, 66 Tex.Crim. Rep., 148 S.W. Rep., 306; Beaver v. State, 63 Tex.Crim. Rep., 142 S.W. Rep., 11; Thompson v. State, 67 Tex.Crim. Rep., 150 S.W. Rep., 181; Liner v. State, 70 Tex.Crim. Rep., 156 S.W. Rep., 211; Brailford v. State, 71 Tex.Crim. Rep., 158 S.W. Rep., 541; Daniels v. State, 71 Tex.Crim. Rep., 160 S.W. Rep., 707; Harwell v. State, 71 Tex.Crim. Rep., 160 S.W. Rep., *Page 467 378; Dunn v. State, 72 Tex.Crim. Rep., 161 S.W. Rep., 467; Bradley v. State, 72 Tex.Crim. Rep., 162 S.W. Rep., 515; Cooper v. State, 72 Tex.Crim. Rep., 163 S.W. Rep., 424; Stanfield v. State, 73 Tex.Crim. Rep., 165 S.W. Rep., 216; Hemphill v. State, 72 Tex.Crim. Rep., 165 S.W. Rep., 462; Eads v. State, 74 Tex.Crim. Rep., 170 S.W. Rep., 145; Marshall v. State, 76 Tex.Crim. Rep., 175 S.W. Rep., 154. Many other cases could be cited rendered since I have had the honor of being a member of the court, but in the opinion of the case of Johnson v. State, 66 Tex.Crim. Rep., 148 S.W. Rep., 328, Judge Davidson, in a case similar to this, so aptly expresses the law, I quote from it:
"Another bill recites that the county attorney, in his argument, made the following statement to the jury: `He shot an unarmed man; shot him in the back, because he went there to collect a bill. "He ordered me out, and before I got out he shot me?"' To these remarks objections were urged by the defendant. The testimony with regard to this in the dying declaration was excluded by the court. Indirectly, if not directly, through the witness Smith, the matter was placed before the jury in regard to his being the bill collector, and seeking to collect from the defendant. This statement or argument, if deemed an argument, by the prosecuting officer was unwarranted and on a crucial point in the case which had been excluded by the court in part at least, and directly so, so far as the dying declaration was concerned, and it was used illegitimately by the county attorney as an argument; and it was upon a most crucial point in the case, and was, therefore, not permissible. If the prosecuting officers will continue to violate the rules of argument and make statements of fact before a jury which are not permissible, or which have been excluded by the court, then they force upon this court the duty of reversing cases. They understand, or ought to understand, that when they transgress the rules far enough in the line of unwarranted argument to use matters before a jury to press a conviction, when such things are unwarranted by law and have been excluded by the court, they assume the responsibility of forcing this court to reverse judgments. The accused in Texas is entitled to a fair trial on legitimate testimony."
In this case, as in that case, the district attorney had tried to get the testimony admitted. The court had excluded it, yet in his closing argument he states, in effect, what the witness would have testified. It was on the crucial point in the case, and without this testimony of the district attorney the jury, in my opinion, would have found appellant guilty of no higher grade of offense than manslaughter, if guilty of any offense, yet with this testimony of the district attorney (not argument) before them, the jury finds the appellant guilty of murder, and assesses a penalty almost equivalent to life imprisonment. Had the court admitted this testimony in evidence over the objection of appellant, with no proper predicate laid, this court would not hesitate to reverse the case. When the district attorney tried to lay the proper predicate, he could not do so, and the court would not permit the witness *Page 468 to testify, yet in his closing argument the district attorney gets the testimony before the jury by himself telling the jury what the witness would have sworn. If the law can be evaded in this way, it would be better that they make no objection to testimony, for then they would know what they had to meet, and they could discuss it in their argument. When it comes as this testimony did on the crucial issue in the closing address of the district attorney, an accused is helpless and at the mercy of the court. I am of the opinion that the case should be reversed and counsel made aware that additional facts and extraneous matters can not be gotten before the jury by their unsworn statements made in the closing argument.