This is a conviction for rape, appellant’s punishment being fixed by the verdict at five years’ confinement in the penitentiary.
The first assignment of error is: “ The court erred in permitting the objectionable remarks of the district attorney, Mr. Spooner, in the closing argument to the jury.”
The bill of exceptions shows that the district attorney used the following language in substance: “That during last year eight colored females and five white females were ravished and murdered in the city of Austin. That an honest carpenter bad gone to bed, and in the night some hellish villain, like the defendant at the bar, had come and killed him, and then ravished and killed his wife and left *573her in a nude condition for the horrified populace to gaze upon.” To all of which the defendant objected at the time, called the attention of court to the same, and asked that the district attorney be restrained from further pursuing his line of argument, and that the jury be instructed that they should not be influenced in finding their verdict by giving any weight to said objectionable arguments; which objection was overruled by the court, and the district attorney allowed to proceed.
Under the decisions of this court upon similar conduct of prosecuting attorneys, we feel it our duty to reverse this judgment. Our views upon this matter cannot be better expressed than is done in Gazley v. The State, 17 Texas Ct. App., 267, by Judge Willson. In this as in that case the appellant was upon trial for rape, the very mention of which arouses public indignation, and fires the minds and passions of a community with a desire for vengeance against the guilty party. In such cases especially the court and counsel engaged in the trial should be scrupulously cautious to accord to the defendant a fair and impartial trial, as free as possible from excitement or prejudice. There should be no clap-trap or sharp practice made use of by counsel for the State. No improper means should be resorted to to prejudice the minds of the jury against defendant in the remotest degree. No testimony should be offered on the part of the prosecution that is known to the prosecution to be not relevant and legal. No remarks should be made by counsel for the state which are not fully warranted by the evidence. Matters not in evidence should not even be alluded to in argument, when such matters might possibly prejudice the defendant.
In this case what had the defendant to do. with, or in what manner was he connected with, the fearful tragedies that had occurred at Austin? Nothing whatever. Is it legitimate for counsel for the prosecution to insist in argument upon the prevalence of crime, or even similar crimes to that under trial, in order to obtain a conviction? Hear what Mr. Bishop says upon this subject: “Counsel are entitled to employ with the jury only legitimate argument. To indulge in vituperation and abuse of the party, or urge that if the defendant is not convicted the prosecutor will be ruined, or be deemed convicted of perjury, or inflame them with the idea that justice has not been well administered heretofore, and therefore the defendant must not be acquitted, is irrelevant while it is unjust. The jury 1 should decide,’ says Compton, judge, ‘upon the case solely upon the weight of evidence, and not with reference to the supposed consequences to one side or the other.’ Of the like sort *574is the expression, by a defendant’s counsel, of belief in his client’s innocence.”
[Opinion delivered March 13, 1886.]“If counsel undertake what is thus inadmissible in argument, it is the right of counsel on the other side to object. Arid whether objection is made or not, the court may stop it; and, the author submits, a due regard for the purity of public justice demands that courts should oftener interfere in this way than is common. Not in all circumstances can an error of this sort in the presiding judge be corrected by a higher tribunal; but in some it can, as by granting a new trial.” (1 Bish. Cr. Proc., 975a, 975b.)
This court has very often corrected such errors by reversing a judgment of conviction obtained by such methods, and granting a new trial, and we feel constrained to do so in this case, because in our judgment the remarks excepted to were outside of the evidence, and were calculated to inflame the minds and excite the prejudices of the jury unduly against the defendant.
The judgment is reversed and the cause remanded for another trial.
Reversed and remanded.