dissenting.
I cannot agree to the affirmance of this conviction for the following reasons:
Bill of Exception No. 10 recites that the district attorney in his argument stated, “We could have taken two weeks to try this law suit. I could have paraded lots of witnesses, probably forty or fifty out there, according to this boy one night when they were playing craps.” The bill contains the further recitation “that there was no testimony introduced to support the propriety of the District Attorney’s argument other than that shown in this bill of exception.” The bill contains no showing as to what “this boy” had testified or to whom the district attorney was referring. It does contain the recitation that several witnesses had testified that they had participated in “games of dice” at appellant’s home on occasions for approximately two years.
When a bill of exception contains the recitations quoted above, then the bill should be appraised without reference to the statement of facts. Sublett v. State, 158 Texas Cr. Rep. 627, 258 S.W. 2d 336. If this is so, we have the bold assertion by the district attorney that he had available but did not call as *602witnesses forty or fifty people who could and would have testified favorably to the state.
This same type of argument has been condemned in McNaulty v. State, 138 Texas Cr. Rep. 317, 135 S.W. 2d 987. In that case, we reversed the conviction because the prosecutor in his argument told the jury: “We could have put on many more witnesses that would have testified to the same facts that the witness testified to that we did not put on.”
Bill of Exception No. 12 recites that the prosecutor told the jury:
“That’s what could happen if he’s allowed to go free. He can go back out there and set up his same gambling system that it took three years to catch him this time * * * .”
This bill contains the same recitations as the preceding bill. For the prosecutor to tell the jury that the officers of the law had been trying to catch the appellant for three years before they were successful in their efforts when not supported by the record was simply injecting into the record unsworn testimony that was clearly prejudicial to the appellant.
Bill of Exception No. 15 recites that the prosecutor told the jury further:
“Now, that is the purpose of punishment, not only to reform him and tell him you won’t tolerate professional gambling in Wichita County where hundreds and thousands of dollars were lost * * * .”
It also contains the same recitations as the preceding bills. For the prosecutor to go outside the record and tell the jury that “hundreds and thousands of dollars” had been lost to professional gamblers in his county was certainly calculated to prejudice an accused who had defended on the theory that the dice games which had been proven by the state to have occurred had been “friendly games between the participants” at his home.
The rule of law which provides that the prosecutor shall not give unsworn testimony which is harmful to the accused is so axiomatic as not to require the citation of authority.
I respectfully enter my dissent.