In his motion for rehearing, appellant, for the first time, asserts that the trial court in his certificate to Bill of Exception No. 2 certifies that an error was committed in the matter therein complained of. This matter was not called to our attention on the original submission of the case and it escaped our observation. Upon consideration of the motion for rehearing, we have carefully examined the bill and reached the conclusion that appellant's contention is well founded.
It appears from the bill that the District Attorney in his closing argument to the jury said:
"That a suspended sentence would not mean anything to the defendant; that the certainty of punishment was the dread of every person who contemplated crime, and that there was no reason why this defendant should not be dealt with as other defendants have been dealt with who were tried for driving while intoxicated by going either to the penitentiary or to jail."
Appellant objected to the argument on the ground that there was no evidence that any other defendant had been tried for the same offense, nor any kind of a showing that punishment, if any, had been assessed against other defendants; that said remark was wholly without any evidence as a basis therefor, was harmful, prejudicial, highly inflammatory, and was not provoked or invited by word or action on the part of defendant's *Page 190 counsel. The court certified that the remarks of the State's attorney were out of the record; that the same were not provoked or invited by defendant's counsel, and that said remarks were harmful, prejudicial to the defendant's application for a suspended sentence and contributed to the action of the jury in declining to recommend a suspension of sentence, etc. Since the court made the certificate in substance as above stated and as the bill fails to set forth all the pertinent facts, we are not able to determine whether the trial court erred in certifying that error was committed with respect to the matter complained of. Therefore, we feel that the motion should be granted under the following authorities: Traylor v. State, 120 Tex.Crim. R.; Horton v. State, 124 Tex.Crim. R., 61 S.W.2d 843; Bryan v. State, 126 Tex.Crim. R., 70 S.W.2d 715; Easterwood v. State,127 Tex. Crim. 437, 77 S.W.2d 232; Rehm v. State, 128 Tex. Crim. 59; Pounds v. State, 128 Tex.Crim. R.; Baldwin v. State, 130 Tex.Crim. R.; Wade v. State, 134 Tex.Crim. R.; Dykes v. State, 135 Tex.Crim. R.; McKee v. State,34 S.W.2d 593.
For the reasons stated, the motion for rehearing is granted, the order of affirmance is set aside, the judgment of the trial court is now 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.