We are asked to review our decision that under the rule of invited argument we were not authorized to reverse the case.
The district attorney in his argument said: "On the trial of William Curry, Will Curry testified that John Curry killed the deceased, Richard Norman." The court, at the request of the appellant, instructed the jury that this was improper and must be by them disregarded, and in qualifying the bill, the court said: "One of the attorneys representing the defendant, in his argument to the jury, stated in substance that the State ought to be satisfied in this case. The district attorney has already sent defendant's son to the penitentiary in this very court, who confessed in his trial that he killed Richard Norman, and the district attorney in making the remarks complained of was answering the above argument." Both the statement of the attorney for the appellant, as well as that of the district attorney were unauthorized. There was no evidence on the trial that William Curry testified that appellant shot deceased, nor that William Curry confessed that the shooting was done by him. The trial judge was not a party to either statement going before the jury, but on the contrary did what he could to repair the injury by instructing the jury not to consider the remarks of the district attorney. As stated in the original opinion, if the remarks of the district attorney had not been made in response to those made by the appellant's attorney, and upon the same subject, we would regard the matter as reversible, notwithstanding the court's effort to induce the jury not to consider it. The rule that remarks of the State's counsel, in response to those made by the attorney for the accused, are not to be made by the accused the basis of available complaint, is one that this court has recognized and applied with uniformity. It has been deemed necessary in order to enable the judge to control the trial. Its abrogation would license the attorney for the accused to bring before the jury matters not introduced not admissible in evidence, and the fact that a hardship may result in extreme cases, would not justify the court to make exceptions, the effect of which would be to destroy the rule. Many examples of its application can be found in Michie's Digest of Texas Crim. Cases, vol., 1, p. 447, among which we mention the following: Fluewellian v. State, 59 Tex.Crim. Rep.; Campbell v. State, 35 Tex.Crim. Rep., in which, referring to a remark made by the district attorney to the effect that during all those six long years, and all the trials that were had during that time, no jury ever turned the defendant loose. Judge Hurt, in *Page 449 writing the opinion, said: "In answer to this, it is sufficient to say that these remarks were made in response to the remarks on the same subject by appellant's counsel in his speech. Both were outside of the record, but the remarks of the district attorney were pertinent to and explanatory of the charge made by appellant's counsel as to former trials of the case. See also Johnson v. State, 45 S.W. Rep., 901; Wright v. State,60 Tex. Crim. 385, 131 S.W. Rep., 1070; Jackson v. State,49 Tex. Crim. 215; Baker v. State, 4 Texas Crim. App., 223; Leggett v. State, 65 S.W. Rep., 516; Brantley v. State, 42 Tex. Crim. 293; Campbell v. State, 62 Tex.Crim. Rep., 138 S.W. Rep., 607; Smith v. State, 21 Texas Crim. App., 277; Railey v. State, 58 Tex.Crim. Rep.; Williams v. State, 51 Texas Crim. Aep., 352.
The motion for rehearing is overruled.
Overruled.