*246ON MOTION FOR REHEARING.
MORROW, Presiding Judge.In his motion for rehearing the appellant, through his counsel, has directed attention to the complaint of the remarks of one of the state’s attorneys which was not discussed in the original opinion. We quote the argument as follows:
“The defendant is a notorious bootlegger and he uses his taxicab to go to his home to get liquor and delivers it to purchasers all over Beaumont.”
Prompt objection to the argument was made and exception reserved to the refusal of the court to sustain the objection. In the bill it is recited that counsel for the accused, in his address to the jury, had made no argument or remarks to the jury inviting the argument of which complaint is made. The matter was not in any way withdrawn from the consideration of the jury. In qualifying the bill, the court said that there was testimony in the record to the effect that the appellant had been bootlegging and driving a taxicab ever since the witness Richardson had known him and that he had that reputation. He also stated that the accused had previously been indicted for the unlawful possession of intoxicating liquor.
Appellant insists that a re-examination of the record will develop facts throwing a different light on the argument of which complaint is made. On the original hearing of this appeal, the assumption was indulged that the interpretation of the evidence reflected in the qualification to the bill was accurate and complete.
The witness Hogan gave in substance the following testimony: He was a patrolman for the police department. He had known the appellant about eighteen months, and in passing his house at night on various occasions, had seen “signs” of whisky, that is, a five-gallon jug in the yard and people going in and out of the place at night, some with packages in their hands. He reported these conditions to the witness Richardson, a police officer. Hogan had made raids at the appellant’s taxicab stand, but had never found any whisky there. He said he had found whisky at a filling station, but no evidence that it belonged to the appellant. He had never arrested the appellant at any time, but supposed that other people had done so.
Richardson’s testimony was in substance as follows: He had known the appellant for some sixteen years. On the 31st day of October, 1930, he found eighteen gallons of whisky in the appellant’s house. It was in glass jugs which were in a closet in the house. The appellant was not at home at the time, but when word was left at his house by the officers, he came to the police station where his arrest was made. At the time of the search the appellant was not in the taxicab business and had not been so engaged for some weeks prior thereto.
Responding to an inquiry by state’s counsel, the witness said of the *247appellant: “He has been a bootlegger and a taxicab driver ever since I have been an officer. This is not the first time I ever made any arrest of him. I had him indicted twice before this, but did not quite put it on him. These cases were dismissed. I did not have sufficient proof to-prove it.”
Appellant admitted that in 1927 he acquired fifty gallons of whisky for his own use and not for sale; that the whisky found in his possession was what remained of the fifty gallons that he had originally possessed ; that he had entered a plea of guilty in the Federal Court and satisfied the penalty in April, 1927; that since that time he had handled no whisky in a manner to violate the law, and had never sold any whisky since that time.
If there were found in the record any objection to the testimony of Officer Richardson last above quoted, namely, that the appellant had been a bootlegger and taxicab driver ever since the witness had been an officer, the question presented would be less difficult. We find in the record no authentic testimony equivalent to that given in the argument of the attorney, namely, that the appellant used his taxicab to go to his home to get liquor and deliver it to purchasers all over Beaumont. These remarks,, taken as a whole, apparently assumed the attitude of testimony rather than argument. This declaration contradicts the appellant’s testimony and is not supported, so far as we can perceive, by the specific declaration-of any witness testifying under oath. Appellant was on trial and convicted of the unlawful possession of whisky. He defended on the statement that he possessed whisky for personal use and not for sale. To show that the whisky was for sale, the state relied on circumstances and the statute relating to prima facie evidence (article 671, P. C.). Since his conviction in the Federal Court some three years previous to the date of the present alleged offense, there was an absence of proof of sales of whisky by the accused. It was shown by the state’s witness that all efforts to prove any sales of liquor by the accused had been abortive. This, notwithstanding frequent efforts to that end.
The declaration that the appellant was using his taxicab, as above stated, to deliver whisky to purchasers all over Beaumont, given to the jury by the prosecuting attorney and received with the sanction of the court (as implied from his refusal to exclude the argument), may have-made a deep impression upon the jury and had a potent effect in giving the penalty assessed, which is four times the minimum. Under the circumstances, from the record in the case, we are constrained to the conclusion that we were in error in failing to reverse the judgment of conviction. A repetition of the many cases in which this court has condemned as improper remarks of counsel which assume the attitude of testimony rather than of comments upon testimony coming from witnesses-is not deemed necessary. Mr. Branch, in his valuable work of annotating *248the statutes of the state, cites many decisions of this court under the heading of “the unsworn statement of- state’s counsel to the jury of a material fact adverse to defendant which was not put in evidence during the trial will require the judgment of conviction to be set aside.” See Hunnicutt v. State, 18 Texas App., 523, 51 Am. Rep., 330, and other cases collated in section 364, page 205, Branch’s Ann. Tex. P. C. It is by no means to be inferred from the above statement or otherwise that every improper argument or an argument even of the type described above will work a reversal. See Anderson v. State, 106 Texas Crim. Rep., 305, 292 S. W., 218; Smith v. State, 92 Texas Crim. Rep., 446, 244 S. W., 522; Coates v. State, 98 Texas Crim. Rep., 314, 265 S. W., 891. Whether a reversal of the judgment is to be ordered upon an improper argument depends not upon the argument alone but upon the evidence arid the result of the trial. Many cases will be found in which this court has refused to reverse the judgment even though the argument was improper but the evidence was sufficient and the verdict assessed was the minimum. We are unable to conclude, however, that the present case comes within the classification last above mentioned.
The motion for rehearing is granted, the order of affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.
Reversed and remandéd.