ON MOTION FOR REHEARING.
GRAVES, Judge.Appellant’s main contention herein is based upon a statement of the state’s attorney in an argument to the jury wherein he was commenting on the testimony of one of appellant’s brothers, Ernesto Everett, Jr., and used the following language:
*185“Take the witness, Ernesto Everett, Jr., he is at the present time indicted for assault to murder on an officer.” The portion hereof objected to is underscored by us. The remaining portion of such argument is supported by the evidence of Ernesto himself from whose testimony we quote:
“I am not under indictment for assault with intent to murder. You say that this last Grand Jury indicted me for assault with intent to murder, and I say that they did not give me any chance to testify. I am under bond; I would have to be under bond, otherwise I would be in jail. I am under indictment for assault with intent to murder; I guess I am, but I do not know why though.”
This witness was not present at the scene of this shooting, but merely testified to two certain difficulties he had participated in previous to the time charged in this present indictment, such previous encounters being only remotely connected with the killing for which appellant was herein convicted.
This phrase “on an officer” was not in the record, and we are in accord with the original opinion wherein such was called an error. We are cited to certain decisions claimed to hold that an error was fatal to the conviction. Let us analyze these citations.
In Deuran v. State, 130 Tex. Cr. R. 308, 94 S. W. (2d) 181, there was held to be error in the statement of the district attorney that “C. J. Jones was employed in a drug store and was not a pharmacist and you know what he was selling.” It was contended that such a statement contained an intimation that Jones was selling whisky and same was not a legitimate deduction from the testimony relative to this witness who had given material testimony in behalf of appellant. Not so in Ernesto’s testimony; he was not even present at the homicide, but was in bed suffering from injuries received in the two previous encounters at which appellant was not shown to have been present.
In the case of Harrison v. State, 102 Tex. Cr. R. 385, 278 S. W. 430, the prosecuting attorney gave .testimony out of the record relative to the accused’s failure to bring his wife to testify, saying: “He would have had his good wife here to deny such things, but he knew that I had talked with her and that if she was put on the witness stand she would have told the truth about it and it would have convicted him.” The matter *186being inquired about therein was the possession of intoxicating liquor for the purpose of sale, and of course, such a statement contravened the law in more than one aspect. It evidenced the fact that the attorney had talked with the wife and that she had told him a story in conflict with the accused’s testimony.
Again, we are cited to the case of Williams v. State, 96 Tex. Cr. R. 294, 257 S. W. 544, as in point herein. That was a liquor case, and the state had used as a witness, Mr. Brite, who allegedly had purchased liquor from the accused. The accused showed that Brite was under indictment for murder, as he had a right to do, and the state was then allowed, over objection, to show that the person alleged to have been killed was a bootlegger. In his argument to the jury the assistant district attorney stated in substance that Brite was an officer and was under indictment for killing a bootlegger while he was undertaking to make an arrest for the illegal selling of liquor; that Brite was doing his duty as an officer and trying to enforce the prohibition law; that it was his duty to arrest bootleggers, and if the real facts were known, they would not censure Brite. To this testimony and this argument an exception was taken and for that, as well as other errors shown, that case was reversed. It is apparent that the objectionable statement of the state’s attorney went far beyond the record and gave supposed incidents relative to the killing of this supposed bootlegger which, together with other errors, resulted in a reversal.
We are cited to the case of Wright v. State, 112 Tex. Cr. R. 214, 16 S. W. (2d) 126, in which the charge was rape under the age of consent. The accused offered a witness who testified to having seen the prosecutrix in an act of intercourse with a person other than the accused. The prosecuting attorney then asked this witness if he did not rob a filling station and, upon an objection being made thereto, the attorney stated: “I want to show that he is not only a liar but also a thief. He helped steal money from the bank; that he has been charged and had been arrested for breaking into a filling station.” It appears that no testimony was available and none presented. showing any such indictment, and in view of the closeness of the question of guilt, this court held such a statement of the prosecuting attorney to be error.
In the case of Finley v. State, 145 Tex. Cr. R. 507, 169 S. W. 975, we had the following to say:
“We think the safe rule relative to complained of argument to be as laid down in Vineyard v. State, 96 Tex. Cr. R. 401, 257 *187S. W. 548, 550: ‘We think the only safe rule to be that this court should not hold an argument to be reversible error unless it is in extreme cases where the language complained of is manifestly improper, harmful, and prejudicial, or where a mandatory provision of the statute is violated, or some new and harmful fact injected into the case. Stanchel v. State, 89 Tex. Cr. R. 358, 231 S. W. 120; Henderson v. State, 76 Tex. Cr. R. 66, 172 S. W. 793; Bowlin v. State, 93 Tex. Cr. R. 452, 248 S. W. 396.’ Threadgill v. State, 124 Tex. Cr. R. 287, 61 S. W. 2d. 821.”
We express the opinion that the added phrase complained of by the bill of exception in the present instance was not of sufficient harmfulness to warrant a reversal hereof. The witness, Ernesto Everett, Jr., was not present at the homicide and gave no testimony relative thereto. He merely testified relative to two previous difficulties in which he and his brothers and father had some trouble with the Munoz boys and their father (the deceased), in neither of which difficulties was appellant himself present, and Ernesto merely gave his version of these difficulties had at a date prior to this homicide. Applying the rule set forth in the Vineyard case, supra, we see no serious error shown in this bill.
It is also worthy of note that appellant’s defense was based on the fact that he was defending another brother by the name of Willie, and no mention is made of Ernesto, Jr., in such claimed defense of Willie, which resulted in the killing of Rodolfo Munoz.
The details of these two previous difficulties may become material in other and different trials, but they are useful herein only in showing the basic cause of this armed attack upon the man who lost his life on the occasion herein complained of, and we find but little, if any, difference in the proof relative to there having been two such encounters between these two families, never finding appellant present at such previous encounters.
We adhere to the views expressed in our original opinion herein, and the motion will, therefore, be overruled.