The indictment charges the. defendant in due form, with the theft of “one animal of the horse kind, namely a colt, between the age of one year and two years old,” the property of J. H. Gary. The defend*591ant was convicted of the charge, and his punishment assessed at five years’ confinement in the penitentiary.
When the case was called for trial, the defendant presented to the court an application for a continuance, for the want of the testimony of three witnesses by whom, he states, he expected to prove that he was the owner of the identical animal that he is charged with stealing, at the time it is alleged to have been stolen. The court overruled the defendant’s application for a continuance, to which the defendant at the time excepted as appears by his bill of exceptions in the record. We think the application shows reasonable diligence on the part of the defendant to obtain the attendance of the witnesses named, and that the application in other respects complied with the requirements of the statute. The defendant’s defense was that the animal he was charged with stealing was his own property at the time he took it, or. that, if not his own property, he honestly believed it to be such, and took it in good faith, and without any fraudulent intent. There is evidence in the case tending to support this defense, and the state of case thus contended for is not unreasonable, and is not inconsistent with the facts proved in the case. The evidence for which he sought to obtain a continuance was certainly of a material character’, and we see no reason for believing that the facts stated in his application are not probably true. The evidence in the case is to our minds unsatisfactory when taken in connection with the defendant’s application for a continuance, and we think the court erred in not granting the defendant a new trial.
There appears in the record of this case the following bill of exception taken by defendant, viz.: “Be it remembered that when the district attorney was arguing the case to the jury, and commenting upon the testimony before them in his closing speech, the defendant, sitting by in person, spoke and said, ‘If I had the witnesses Tom and Hub Fennel’ (these being two of the witnesses *592named in defendant’s application for a continuance) ‘ I could show about it,’ or words to that effect, whereupon the district attorney turned and looking, said to the jury in substance, ‘The brother of these men told me if they were here their testimony would be against you.’ Whereupon objection was made to these re.marks of the district attorney, and he then said to the jury not to regard anything he or defendant had said; the court suggested to defendant’s counsel he had best tell his client to cease talking; which he did and the argument proceeded,” etc. It is insisted by defendant’s counsel that this language of the district attorney was improper, not warranted by the rules of court, and calculated to injure the rights of the defendant, by prejudicing his case in the minds of the jury. We think the objection is well taken. The statement complained of was not an argument based upon the law of the case, nor upon the facts in evidence. It was an assertion of the existence of a fact not in evidence, and of a fact which, if believed by the jury to be true, would naturally weigh strongly against the defendant.
There were other improper remarks made by the district attorney in the hearing of the jury during the progress of the trial, which are properly presented by bills of exception for the consideration of this court. While the remarks complained of were out of place, and should not have been allowed to pass uncensured by the court, we would not feel called upon to reverse the judgment upon this ground alone, but when they are considered in connection with the other facts and proceedings in this case, we think they were well calculated to affect injuriously the rights of the defendant, and to deprive him of a fair and impartial trial upon the law and the evidence of his case. At the Galveston term of this court, in the case of Conn v. State (11 Texas Ct. App. 390), appealed from the same court that this case is appealed from, a similar breach of the rules governing the argument of *593■causes, committed, by the district attorney, was very plainly aud forcibly condemned by this court; but it seems the admonitions contained in that opinion have not had a salutary effect, and we are again compelled to express our condemnation of such a practice. Rules 36, 38, 39, 40 and 41 for the government of argument in the District Court should be rigidly enforced, and especially in criminal trials.
It seems that in this case the district attorney, after he had made the objectionable remarks complained of by defendant, sought to correct the error by asking of the court a charge to the jury, which is as follows: “The jury in their deliberation in this cause should not, in finding their verdict, be influenced for or against the defendant by any argument or remarks made either by the counsel for the defendant or the State, but must be governed solely by the law as given them by the court, and the facts testified to by the witnesses on the stand.” We "think this came too late to remedy the evil, and that, furthermore, it was an improper instruction. We do not understand that the jury are to disregard argument. The law provides for argument, and it is one of the most effectual means known to the law of arriving at the truth. If a jury is to be uninfluenced by argument, then why have argument ? It would be wise to forbid it, and thus save much valuable time. If the district attorney had requested the court to instruct the jury that he had committed an error in stating to them what had been told him by a brother of the absent witnesses Fennel, and that they must disregard his remarks upon this subject, and not suffer their minds to be in the least influenced thereby, it would at least have been a partial reparation of the wrong; but the charge which was given at his instance was, we think, better calculated to intensify than to palliate the error.
We do not think the defendant has had a fair and im*594partial trial under the law, and the court erred in not. granting him a new trial; and for these reasons the judgment is reversed and the cause remanded.
Reversed and remanded.