The State's motion for rehearing is predicated on the position that the argument complained of was based on evidence properly in the record, or if improperly admitted, the point was lost by the introduction by appellant of *Page 327 practically the same evidence. It was not intended by our original opinion to hold that under the circumstances a proper argument could not have been based on the evidence. Our view was that, whether so intended or not, the argument complained of unfortunately involved the trial judge, and expressed his, as well as the district attorney's attitude towards the case; that under certain conditions they had no desire to send appellant to the penitentiary, but that appellant had failed to comply with such condition. The jury could have easily drawn the inference that under such circumstances both the trial judge and the district attorney had changed their minds about the matter. Having reached such conclusion the order reversing the judgment naturally followed. The argument is to be regretted, but our mind remains unchanged as to its probable result.
The State's motion for rehearing is overruled.
Overruled.