Appellant was convicted of assaulting his wife with intent to kill her, and his punishment assessed at eight years confinement in the State penitentiary.
Appellant in his brief and able oral argument before this court seems to rely mainly for reversal of this case on the ground that the court erred in overruling his motion for new trial, because of alleged newly discovered testimony. We do not deem it necessary to discuss this ground, as the case will be reversed on other grounds, and it certainly will not be newly discovered on another trial.
The most material error, as we view the record, is shown by those bills which complain about the court permitting the prosecuting officers to inquire about the indictment of appellant (it being too remote) and the argument of prosecuting counsel in his closing address in regard to this matter, and comment upon matters not in evidence. In the first bill of exceptions it is shown:
"Be it remembered that upon the trial of the above entitled and numbered cause, and before the defendant had took the stand to testify in his own behalf in this case, that defendant's attorneys stated to the court and to the district attorney in the presence of the court that the defendant had fourteen years prior to this trial been charged with the offense of murder and tried in this court and found not guilty by a jury, *Page 190 and had never since then been charged with any offense and had lived in Fannin County during all of such time since such trial, and submitted to the court that such prosecution was too remote to be offered in evidence in this case as against him and could be offered for no other purpose than to put him in an improper light before the jury, as the facts were that he was justified in killing and necessarily had to kill his assailant at such time, and asked the court to instruct the district attorney that such former charge was not admissible for any purpose against the defendant and that the State could not and would not be permitted to inquire into same; and the court thereupon stated that it wastoo remote to be admitted in evidence against the defendant, but that the State's attorney had the right to ask any question he saw fit and the defendant's counsel had the right to object to such questions when asked and he would pass upon them at the time; and the district attorney thereupon stated that he knewsuch evidence was not admissible but that if we did not want it in we could object to such evidence; and defendant's attorneys thereupon told the court and the district attorney that they reserved then an exception to any conduct of the district attorney in asking about such charge when he took the stand in his own behalf.
"And thereupon the defendant took the stand in his own behalf, and while testifying on cross-examination the district attorney asked the defendant the following question: `Q. Mr. Bullington, I will ask you if you have not been charged prior to this time with a felony; that is, if you have not been charged with murder?' And the defendant answered, `Yes.' And the defendant's attorney thereupon renewed such objections to the court and stated that they would not object to defendant answering since the district attorney had made such insinuation before the jury and that they wanted him to answer it all, and then and there duly excepted to the action of the court in permitting the district attorney with such notice in propounding such question and injecting that matter in this case when it could have nothing to do with it, for the reason that it was too remote, being more than fourteen years before; did not involve moral turpitude and threw no light on this case, and because the same was injected into the case for the sole purpose of trying to influence the jury and prejudicing the jury against the defendant.
"And defendant here tenders this his bill of exception No 1, etc."
In approving the bill the court says:
"The above bill has been presented to me and given with the following explanation, that while the case was being tried, but not while the evidence was being taken, just before defendant took the stand, counsel for defendant in my presence and the presence of the district attorney, said that Bullington had been tried and acquitted in that court about fourteen years ago, and he didn't want the district attorney to be asking defendant about that. I told him I thought it too remote, but I could not pass on it until it come up to me; that I thought the district attorney had the right to ask any question that he wanted to and that the defendant *Page 191 could object and then I would pass on it, and the defendant's counsel then said we want to take a bill of exceptions, as the matter is too remote and could not effect the defendant. The question and answer set out above in the bill was not the question asked by the district attorney nor the answer of the defendant. The question asked was as follows: `Mr. Bullington, I will ask you if you have not been charged prior to this time with a felony?' Defendant answered: `I refuse to answer.' Counsel for the defendant then made the following statement: `Your Honor, I am going to object since he has made the insinuation before this jury. I want him to answer and answer it all, but I take an exception to the action of the district attorney in injecting a matter in this case that has nothing to do with it, that does not involve moral turpitude and would throw no light on this case and injected for the sole purpose of trying to influence the jury and prejudice them against the defendant, and I take a bill of exception to it.'
"Then after counsel for the defendant made the above statement the district attorney asked the following question: `You have been charged with a felony before, haven't you?' And defendant answered, `Yes, sir.' Then the district attorney asked: `Been charged with murder, have you not?' and defendant answered: `Yes, sir.' Then the district attorney asked the following question: `You have been charged with murder more times than one, too, haven't you?' Defendant answered, `No, sir.' Then the district attorney asked, `I will ask you if you was not charged with murder in Bell County?' Defendant answered, `No.' Then the district attorney asked: `I will ask you if you was not charged with murder in Tennessee before you came out here?' And the defendant answered, `That don't concern you.'
"The questions and answers were asked and made one right after the other, as above indicated. And nothing done, except as set out in this explanation, except defendant excepted to each question. In this case the defendant had filed an application to submit to the jury the question of suspended sentence, and the same was put on the motion docket and the motion of the defendant was granted by me. Signed, Ben H. Denton, judge."
It is seen the court apparently did not think he had the right to prohibit the district attorney to ask a question about a matter about which both he and the district attorney knew was inadmissible as testimony. In this, the court was in error. In Vick v. State, 71 Tex.Crim. Rep., this court said in passing on a similar assignment of error:
"The court was clearly in error when he stated in effect there was no rule of law giving him authority to require or instruct the county attorney not to ask appellant about the former conviction. The court not only had the power and authority to do so, but it was without doubt his duty to do so, and not only should he have instructed and required the county attorney not to ask said questions, but he should have used the whole power of the court to enforce his instructions. And if under such circumstances the county attorney still persisted and asked or *Page 192 attempted to ask such question, the court should have inflicted such immediate and severe punishment as would not only deter him, but any other prosecuting officer in future to desist. Appellants, however guilty, or for whatever crime charged, have the right to a fair and impartial trial and they have the right and it is the duty of the court and the prosecuting officers to see that improper evidence is not admitted or attempted to be introduced."
Prosecuting officers should never attempt to get before the jury evidence they know to be inadmissible. This bill shows that the officer said he knew the evidence was inadmissible, but, nevertheless, he would make an attempt to get it before the jury. The district and county attorneys are officers of the State, and sometimes they seem to misconceive their duties, and think it their duty to secure convictions by any possible means, and because of this tendency on their part it has brought up the question of whether or not it is the duty of the State to provide another officer — a public defender. In olden times it was considered, and the true theory is, that the trial judge and district attorney are officers of the State whose duty it is to see that each party charged with crime is given a fair and impartial trial under the law, and this each officer of the law ought to use his best endeavors to see is done. Prosecuting officers should not let their zeal get the better of their judgment. They have a higher duty to perform than the mere securing of convictions — a duty to see that each man tried is tried in accordance with the rules of law and no improper advantage is taken of anyone, no matter with what crime he is charged, nor how guilty he may be believed to be.
In other bills it is made to appear that Mr. Baldwin, private prosecutor, in the closing address to the jury, said: "The defendant was guilty of the killing fourteen years ago and escaped punishment then, and was attempting to get out of this case in the same way, but that dead man's blood was on his hands; that they should convict the defendant and give him a severe penalty because he was experienced in crime and in defending murder charges, and when he shot his wife he had been so successful theretofore he thought he could kill her and come clear; that defendant and prosecutrix had separated four years before on account of his drinking, and the thing that caused the separation caused him to shoot and attempt to kill prosecutrix; that they should convict and give defendant a severe punishment, as prosecutrix had brought suit for divorce alleging as her sole ground for divorce that defendant had made an assault on her with intend to murder her, and if they did not convict him she would have to live with him as she had no other place to go; that he would be madder still at her than he was when he shot and tried to kill her, and that he would continue to get drunk and harass her, and he would tell her every day of his life that he had killed a man and gotten out of it; that he had shot her and got out of it; that a jury had turned him loose and that this jury, if they turned him loose, would leave her at his mercy to be mistreated and bull-dozed during the balance of her life." *Page 193
There was no evidence in the record that prosecutrix had brought a suit for divorce; there was no evidence in the record that defendant and prosecutrix had separated four years before on account of his drinking. These were matters injected into the case by argument of counsel without any foundation therefor in the evidence. Then, again, appellant had timely attempted to keep out of the record the fact that he had been indicted for killing a man some fourteen years before, but had not succeeded in doing so apparently. Such testimony was inadmissible and the remarks of counsel in regard thereto were highly improper and the objections made thereto by appellant should have been sustained. The only explanation of the bills by the court is that counsel asked no written instructions in regard thereto. It was proper for counsel to have done so, and he should have done so, but in this instance the remarks are so inflammatory and being also about matters which have no foundation in the record, we are of the opinion that they were of that character as to present reversible error, even though no written instructions were requested. Especially is this true when we consider the punishment assessed against appellant and that prejudicial testimony was injected into the record over timely objection. The rule is that if the remarks are of such character that instructions not to consider same would not remove from the minds of the jury the prejudicial and harmful effect of the argument, it will present error, even though no written charge was requested, if the objection to the remarks is timely made, and the court refuses to stop counsel.
There are other matters complained of in the record, but we think none of them present error.
Reversed and remanded.
Reversed and remanded.