The State's motion for rehearing in this case attacks the bills of exception upon which the original opinion was predicated as being insufficient. The contention is that the bills of exception *Page 258 do not meet the requirements necessary to present the matter, and that the facts warranted the arguments complained of. In other words, as presented, the bills of exception do not meet the requirements in their form and contents, and that even if they did, the facts of the case warrant the arguments complained of. We have examined the authorities relied upon by the State and have reached the conclusion that the bills of exception are sufficient to present the objections to the arguments of counsel under the holdings of this court.
We are further of the opinion, after a careful re-examination of the record, that the original opinion properly deals with the bills and sufficiently shows that the arguments were not justified under the facts. The prosecuting attorney, in the statements complained about, is quoted in the bills as saying: "I say that this Defendant is more guilty than he would be if he had not stopped at all, and if this Jury wants anybody from California or any other sea port to come here and kill poor cotton pickers, they will have to turn this man loose."
The attorney, in this inflammatory statement, was telling the jury either his conclusions of the law or of the facts, and did it in a manner that was calculated to so impress the jury. Again, by Bill No. 3, we are informed that the attorney said, "I say he killed this poor cotton picker, * * * * *."
It will be observed, as treated in the original opinion, that the appellant was not being tried for murder, and even so, the district attorney did not testify, and his argument amounted to an assertion of a fact which would have been an issue in the case. We are unable to agree that it was harmless, and consequently, both the reasoning and the conclusion reached in the original opinion will be adhered to.
The State's motion is overruled.