In the present case, the accused was charged with administering poison to her husband. She testified and denied her guilt. There were some forty witnesses heard upon the trial. The typewritten report of the evidence covers some 280 pages. The evidence was wholly circumstantial. One of the most important circumstances upon which the state relied were certain words written in a book at the time some poison was sold by a druggist. Appellant denied the writing. She introduced witnesses who declared that it was not the handwriting of the accused. Witnesses were introduced to support the theory of the state that the motive for the homicide was the infatuation of the appellant for a young boy. This was controverted. In making up their verdict, the jury had before them this mass of verbal testimony and documentary evidence. It was upon the evidence so introduced before the jury that the law demanded that they must form their verdict.
Private counsel for the prosecution was an eminent lawyer and a distinguished citizen. He knew the jurors. He deserved and had their respect and confidence. He said to them: "I tried this case twice. I had to convince myself, beyond a reasonable doubt, that this lady was guilty beyond a reasonable doubt, before I could consent to help the State."
How was he thus to convince himself? How would the jury view his statement? If, in their deliberation, they were in doubt touching the conflict of testimony, the extent if any, to which they placed reliance upon the statement of counsel that he, by means undisclosed, had in advance of accepting employment, ascertained that the accused was guilty, *Page 391 it is not possible to know, nor is it possible to demonstrate, that the recited pre-investigation and pre-judgment of counsel may have had great weight in turning the scale against the accused. That in making the remarks the zeal of counsel carried him beyond the limit of legitimate debate and into the domain of testimony, is not open to question. Giving emphasis, as well as repetition, to his announcement, counsel apparently in concluding his argument, said: "If we have convinced you in this case like we have convinced ourselves of the guilt of the defendant, you ought to have no trouble in arriving at a verdict."
Prompt objection was in every instance made to the argument mentioned, and at the request of the appellant, the jury was by the court instructed to disregard the remarks, all of which is shown in appellant's bill of exception. Appended to the bill is the following statement by the trial judge: "The trial court finds as a fact that Private Prosecutor Crenshaw has long resided in Kleberg County and was personally acquainted with the members of the jury before whom the case was being tried and further finds that he is a lawyer of distinction and prominence in Kleberg County."
The impropriety of counsel in argument putting before the jury his opinion of guilt or innocence of accused on trial has been declared repeatedly and consistently, as is reflected from the opinions of the court from the beginning of its history. Illustrative, are Habel v. State, 28 Texas App., 588,13 S.W. 1001; Young v. State, 19 Texas App., 536; Kennedy v. State, 19 Texas App., 618; Spangler v. State, 42 Tex.Crim. Rep.,61 S.W. 314; Hawkins v. State (Texas Crim. App.),71 S.W. 756; Hinton v. State, 65 Tex.Crim. Rep., 144 S.W. 617. In some of the cases noted, the point turned upon a failure to request the court to withdraw the objectionable statement. In others, it was held that the remarks, though objectionable, would not furnish ground for reversal, where the court told the jury not to consider them. From the case of Habel v. State, supra, we quote as follows: " 'While it is true that authorities treating upon the subject say that counsel either for or against the prisoner should never express their opinion as to the guilt or innocence of the accused, yet we would hesitate at this day to reverse a judgment on account of a violation of this rule.' Young v. State, 19 Texas App., 536; Kennedy v. The State, Id., 618. There are, however, recent instances where the mode and manner of expressing such an opinion on the part of prosecuting officers has been held sufficient ground for reversing a judgment of conviction. The People v. Quick, reported in full in 58 Mich. 321,25 N.W. 302."
In the Michigan case above referred to, the court declined to withdraw the objectionable expressions. We have found no reported case in which the opinion of counsel expressed to the jury was couched in similar language to that employed in the present case. It must be admitted that *Page 392 it went further than a mere expression of opinion based upon facts developed before the jury. It carried with it the expression of an abiding conviction of appellant's guilt, based upon pre-investigation by counsel. Such an opinion would or would not have weight with the jury in proportion as they did or did not have confidence in the judgment of counsel giving the opinion. In a case where the issue of the guilt or innocence of the accused was closely drawn, it might sway the balance against the accused. Necessarily, the effect of such opinion could not be demonstrated, and would be speculative. Whether the effect could be withdrawn by prompt action of the court, as was attempted in this instance, is likewise speculative, depending upon the case in its entirety.
By a plea as authorized by the statute, article 776, C. C. P., 1925, the appellant sought a supended sentence. On the issue the state called the sheriff of Kleberg county, who testified in his direct examination that he was acquainted with the general reputation of the accused in Kingsville and Kleberg county for being a quiet, law-abiding citizen, or the contrary, that such reputation was bad. From the bill the following is quoted: "Whereupon, on cross-examination the said Moseley testified that the defendant had never been indicted for any offense, no complaint had ever been filed against her for violation of any law, and that the defendant had never been arrested prior to this offnse; and said witness further testified that when he spoke about the defendant's general reputation and said that it was bad, that he had reference purely to her moral character or reputation for chastity."
The appellant, at the time, sought to have the testimony of the witness excluded for the reason that its inadmissibility was shown by his cross-examination. The withdrawal of the testimony of the sheriff on the ground stated was sought and refused by the court, to which exception was reserved. It is clear, we think, that the sheriff was not qualified to give an opinion with reference to the general reputation of the accused for peace and quietude. It became manifest that he did not know such reputation but that he had in mind the reputation of the accused for morality and virtue.
The court overruled the appellant's objection and let the testimony as outlined go to the jury. In the light of the testimony of the sheriff and the procedure disclosed in the bill, the ruling of the court carried the implication to the jury that the general reputation of the accused for moral character and chastity was a relevant matter to be considered upon the issue of a suspended sentence, and the testimony of the sheriff, while lacking in knowledge of the general reputation of the accused for peace and quietude, was qualified to state the opinion that her reputation for chastity was bad, and that the testimony of the sheriff to the effect stated was a proper subject for the consideration of the jury, both on the merits of the case and the question of a suspended sentence. That the *Page 393 ruling of the court in refusing to exclude the sheriff's testimony in toto was error, no doubt is entertained. Bearing in mind the nature of the case before the jury, namely, that it was contended by the state that the appellant poisoned her husband to the end that she might gratify her lust arising from her infatuation for another man, the testimony in question was capable of use by the jury upon the issue of guilt and was calculated to impair her defense and augment the strength of the state's case on the merits of the prosecution.
Dealing with the application for a suspended sentence, in article 778, C. C. P., 1925, it is said: "The court shall permit testimony as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence."
From Texas Jurisprudence, vol. 12, p. 749, sec. 373, the following is quoted: "The reputation contemplated by the statute is the general reputation of the accused for being a peaceable and law-abiding citizen in the community in which he has lived."
In support of the text, the following precedents are cited: Skelton v. State, 106 Tex.Crim. Rep., 291 S.W. 238; Freddy v. State, 89 Tex.Crim. Rep., 229 S.W. 533; Martoni v. State, 74 Tex.Crim. Rep., 167 S.W. 349; Campbell v. State, 73 Tex.Crim. Rep., 164 S.W. 850.
Neither of the matters to which reference is made above was discussed at any length in the original opinion. Attention of the court was pointedly drawn to them in the appellant's motion for rehearing. Our re-examination of the record in the light of the motion, forces the conclusion that the remark of counsel, notwithstanding the attempt of the court to withdraw it, was harmful and that the action of the court in refusing to withdraw the testimony of the sheriff from the consideration of the jury constituted error that cannot be regarded as harmless, but, on the other hand, was likely to injure the accused and deprive her of a fair and legal trial to which she is entitled under the law.
The other complaints in the motion are overruled.
The motion for rehearing is granted, the order of affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.