Since the affirmance of the judgment herein it has been properly shown by supplemental transcript that the statement of facts and bills of exception were filed within the time required by law. Hence the case will be considered on its merits.
The proof on the part of the state was to the effect that appellant and the other parties named in the indictment conspired to steal from John Handy 200 barrels of crude petroleum oil, of the value of $196. It appears from the state's testimony that appellant and others were discovered in the act of taking the oil. The state introduced in evidence appellant's confession, in which he stated that he had been employed to haul the oil by Ben Ray and Crawford Still, they agreeing to give him twenty-two cents a barrel for his services. The confession embraces a statement that he knew at the time that it was "stolen oil."
Testifying in his own behalf, appellant admitted that he had made a contract with the parties named in his confession to haul the oil, but declared that he did not know whose oil it was, but believed that there was nothing dishonest involved in the transaction. He said that it was his business to haul oil and that he was interested in securing the employment. We quote from his testimony: "They told me the oil was all right and a man was there to sign the tickets at the time. * * * I did not at that time know whose oil it was, but I figured that it was all right." Touching his action in signing the confession, appellant testified that a representative of the Railroad Commission and Charlie Gant, a deputy sheriff, induced him to make the confession by promising him that if he would state the facts concerning the transaction they would get him out of his trouble. He said that Deputy Sheriff Gant told him that his codefendants had signed statements, and that if he would do likewise he would be released. Appellant denied that he made the statement embraced in the confession to the effect that he knew that the oil had been stolen.
The court instructed the jury, in effect, to acquit appellant if they believed he did not know that the oil was stolen. Further, *Page 604 the court submitted to the jury the issue as to whether the confession was voluntary.
In bill of exception No. 1 it is recited that in his closing argument the district attorney used language as follows:
"I know Charlie Gant, and he is a good man, and as good an officer as there is in Gregg County, and he would not overpersuade any prisoner to make a statement or confession."
It is certified in the bill that the evidence had raised an issue as to the confession having been obtained by overpersuasion after certain promises had been made by Charlie Gant; and, further, no evidence had been introduced with reference to the "character or reputation" of Gant.
In bill of exception No. 2 it is certified that appellant filed his affidavit for severance requesting that his codefendant, McCowan, be tried first; that the district attorney thereupon dismissed the case against McCowan; that there was no evidence introduced before the jury with reference to the affidavit for severance; that there was no evidence before the jury that the district attorney had dismissed the case against McCowan upon the filing of the affidavit. Further, it is shown in the bill of exception that in his closing argument the district attorney used language as follows:
"The defendant makes affidavit for a severance, and charges in said affidavit there was not evidence to convict the defendant, H. H. McCowan, and wanted McCowan tried first in the event he was acquitted the defendant could use the said McCowan as a witness in his behalf on the trial of this case. I then, with permission of the court, dismissed McCowan's case, and we started on the trial of this case, and McCowan has sat here in the courtroom all evening and the defendant never put him on the witness stand."
It appears that the argument was objected to on the ground that it was the unsworn testimony of the district attorney. As to the two arguments above quoted, appellant presented to the court his written requested instruction, wherein the jury would have been advised that the remarks of the district attorney could not be considered for any purpose. The objection to the argument was overruled, and the court declined to submit to the jury the requested instructions.
The opinion is expressed that the bills of exception manifest reversible error. The first argument was, in effect, the unsworn testimony of the district attorney that the deputy sheriff was not the kind of a man who would in any manner coerce an accused to make a confession; and, further, that his reputation for truth and veracity was above reproach. Thus, on the issue *Page 605 as to whether the confession was voluntary, the district attorney gave unsworn testimony to the effect that the deputy sheriff in question had not prevailed upon appellant to make a confession by promising him that he would be released. Similar language was used in Thomas v. State, 6 S.W.2d 118. In that case, in Opinion on Motion for Rehearing, Judge Lattimore used language as follows: "As we view the matter, the statement in argument set out in the original opinion in this case had the effect of placing the district attorney, as a witness to the good character and reputation of said state witness, alongside the other witnesses introduced by the state in rebuttal." Also, the second argument above set forth had no support in the evidence. It advised the jury that appellant had, in making the application for severance, sought the testimony of his codefendant, and that the witness, although then available, had not been used by appellant. The imputation carried in these unsupported statements was that the codefendant would give testimony damaging to appellant. See Pendleton v. State,26 S.W.2d 240; Davis v. State, 28 S.W.2d 168; Reed v. State,36 S.W.2d 526; Ayres v. State, 27 S.W.2d 540.
The motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.