The offense is murder. The punishment assessed is confinement in the state penitentiary for a term of twenty-five years.
The State's evidence, briefly stated, shows that the appellant, his wife and another negro woman, lived in a small shack in the negro section of the town of Vernon; that next to his home and within four feet thereof there lived another negro with three children. On the night in question, some friends visited the home of the appellant and entertained them with some music. Sometime in the early morning hours appellant was awakened by some one hollering, "Fire." He discovered that his home was in flames and hurriedly made his exit in his underwear. His neighbor was aroused from his slumbers, took his children from his home, threw out his bedding and some wearing apparel and then left the house. They soon discovered that the appellant's wife and the other negro woman were missing. After the building had burned down and the fire extinguished, the firemen found the charred bodies of the two negro women *Page 41 and also two dogs. The appellant's wife had a hole in her sinus about the size of a .38-caliber bullet, and some blood had coagulated therein, which indicated that she was alive at the time the hole in her forehead was made. It was shown that appellant owned a small caliber pistol but that he had pawned it to his neighbor for the sum of two dollars on the afternoon prior to the fire. The neighbor placed the pistol between two mattresses on his bed and it was later found out in the yard where he had thrown the mattresses. The doctor who made the autopsy testified that he would not swear that the hole in the forehead was made by a bullet but said that he thought it was. He also testified that he made an analysis of the spot of blood found on the appellant's undershirt, which appeared to be Type No. 3, while that of the appellant was Type No. 4. There is no evidence from any source that the pistol had ever been fired.
Appellant testified that on the night in question, the musician and his wife had some differences and he slapped her, making her nose bleed; that when he (appellant) undertook to separate them he got some blood on his hand and on his clothes.
The deceased, at the time her body was discovered, was sitting in a chair, while the body of the other woman was lying on the floor. It further appears from the record that the parties had engaged in some drinking on the premises that evening just prior to the fire.
It will thus be noted that the State relied entirely upon circumstantial evidence. We have grave doubts as to the sufficiency of the evidence to justify and sustain the appellant's conviction of the offense of murder. See Branch's Ann. Tex. P. C., p. 1042, sec. 1877.
Bill of Exception No. 2, complains of the following remarks made by the County Attorney in his argument to the jury:
"Gentlemen of the Jury: The witnesses, Alice and another musician were here, present at the last term of court and I talked to them and I know what both will testify, and I am not afraid to put them on the witness-stand."
Appellant objected to this argument and requested the court to instruct the jury not to consider it for any purpose. The court promptly responded to the request but appellant contends that notwithstanding the instruction the argument was not based on any evidence introduced on the trial; that it was an unsworn statement of the County Attorney and was highly *Page 42 prejudicial to his legal rights. We think there is some merit in his contention. Appellant had testified that the witness, Alice, and the other musician became engaged in a quarrel and that the musician struck her, making her blood flow freely from her nose and that he (appellant) undertook to separate them, and in doing so, he got blood on his hands, shirt and pants; that the blood which was discovered on his shirt came from one of the absent witnesses who was struck in the nose. There is no evidence from any source that the parties did not engage in a fight, nor that as a result of the difficulty her nose bled and appellant, in his attempt to separate them, had gotten blood on his clothes. The County Attorney, in his statement to the jury, impliedly contradicted this testimony of the appellant. That such statement was material and hurtful is quite obvious, and we do not believe that the action of the court in instructing the jury not to consider it entirely eliminated the same from their minds. He stated that he had talked to the witnesses and told the jury that he knew what they would testify to and that he was not afraid to put them on the stand, which was in effect, telling them that the two witnesses had told him that they did not have a fight, and that there was no bloodshed on the night in question. Hence appellant's statement that he got blood on his clothes from one of the absent witnesses was untrue.
Prosecuting attorneys should confine themselves in argument to the evidence upon the trial and not bring outside influence to bear upon the jury in order to obtain a conviction. The accused is entitled to a fair trial without reference to any influence other than the evidence and seasonable inferences to be deduced therefrom. See Davis v. State, 55 S.W. 340.
For the error pointed out, the judgment of the trial court is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.