(dissenting). Appellant was allotted by the jury five years’ confinement in the penitentiary for murder.
I do not care to discuss the facts. Several bills of exception were reserved to arguments of state’s counsel. The first bill recites that counsel for the state used the following language:
“What an example it would be to the people of this county for you to return a verdict of not guilty against this bloody assassin.”
The second bill shows the same counsel used this language:
“Gentlemen, if you turn this man loose on such evidence, you might as well tear down your courthouse, burn up your jail, and throw your statutes into the sea.”
The facts show defendant killed deceased because of adultery with his wife. The third bill shows ’the same counsel used this language :
“They claim that the dead man broke up defendant’s home and had intercourse with his wife. They have offered no evidence of this but that of the family of defendant. Gould they find no one else that knew of this? I know this: That while she [meaning defendant’s wife] worked for me, she was a mighty neat little negro woman and a mighty good worker.”
*328There was no evidence, recites the bill, of this before the jury. The fourth bill recites that said counsel used this language:-
“Gentlemen, it is time to call a halt in Trinity county and go to enforcing the law. It would humiliate me for such a murderer to be turned loose upon the people of the county. No one would be safe. Who knows but that the next time it would be one of you gentlemen or me. I haven’t long to stay here-, but I have some grandchildren growing up, and for their sakes I’d like to see killing stopped in Trinity county.”
The humiliation of state’s counsel is not a reason for conviction of a defendant. He must be tried and convicted upon the law and facts. There are other comments that might be made on these remarks.
Another bill recites this language was used:
“Gentlemen, the defendant has asked for a suspended sentence. It would be a travesty on justice, a travesty on the law, and a travesty on humanity to suspend the sentence of this murderer and turn him loose on the county.”
It is unnecessary, in view of the authorities in Texas, for me to discuss the impropriety of the language used. The judge qualifies these bills by stating that appellant did not request a charge withdrawing same from the jury. The judge seemed to be of the impression, as appellant did not request such a charge or such charges, that therefore he was justified in not sustaining the exceptions to the remarks at the time the language was used. Many opinions have been written as to when an argument is improper and when a charge should be requested and when not, and when the language is fatal independent of requested instructions. It is unnecessary for me to review these cases; they are part of the history of the appellate courts in Texas. Some of the language used, and most of it, has been condemned so often by the decisions of this and other courts in this state I deem it unnecessary to discuss (hem. For a collation of the authorities, see Branch’s Crim. Law, § 62; Liner v. State, 70 Tex. Cr. R. 75, 156 S. W. 211; Grimes v. State, 64 Tex. Cr. R. 64, 141 S. W. 261; Johnson v. State, 63 Tex. Cr. R. 50, 138 S. W. 1021; Davis v. State, 54 Tex. Cr. R. 236, 114 S. W. 366; Smith v. State, 44 Tex. Cr. R. 142, 68 S. W. 995, 100 Am. St. Rep. 849; Thompson v. State, 33 Tex. Cr. R. 475, 26 S. W. 987; Clark v. State, 23 Tex. App. 263, 5 S. W. 115; Parker v. State, 43 Tex. Cr. R. 530, 67 S. W. 121; Garrett v. State, 52 Tex. Cr. R. 255, 106 S. W. 389; Smith v. State, 55 Tex. Cr. R. 569, 117 S. W. 966; McKinley v. State, 52 Tex. Cr. R. 182, 106 S. W. 342; Ware v. State, 49 Tex. Cr. R. 413, 92 S. W. 1093; Taylor v. State, 50 Tex. Cr. R. 560, 100 S. W. 393; Jenkins v. State, 49 Tex. Cr. R. 461, 93 S. W. 726, 122 Am. St. Rep. 812; Stone v. State, 22 Tex. App. 192, 2 S. W. 585; Robbins v. State, 47 Tex. Cr. R. 315, 83 S. W. 690, 122 Am. St. Rep. 694.
One of the bills recites that state’s counsel made a statement of fact, that is:
“I know, this: That while she [meaning defendant’s wife] worked for me, she was a mighty neat little negro woman and a mighty good worker.”
The bill recites there was no evidence of that fact before the jury. This was a statement of a matter of materiality, and, not being testified, should not have been used or alluded to in argument. Counsel could not testify in a speech; he should have been sworn. His argument should be based on matters properly before the jury, and he should not make statements before a jury of matters not in evidence. If he desires to testify he may do so, but he must do so under oath. Davis v. State, 54 Tex. Cr. R. 236, 114 S. W. 366; Bearden v. State, 46 Tex. Cr. R. 146, 79 S. W. 37; Tillery v. State, 24 Tex. App. 273, 5 S. W. 842, 5 Am. St. Rep. 882; Exon v. State, 33 Tex. Cr. R. 469, 26 S. W. 1088; Weatherford v. State, 31 Tex. Cr. R. 536, 21 S. W. 251, 37 Am. St. Rep. 828; Fuller v. State, 30 Tex. App. 565, 17 S. W. 1108; Hunnicutt v. State, 18 Tex. App. 523, 51 Am. Rep. 330.
Where argument is obviously hurtful and prejudicial, a reversal will follow. Smith v. State, 55 Tex. Cr. R. 569, 117 S. W. 966; McKinley v. State, 52 Tex. Cr. R. 182, 106 S. W. 342; Smith v. State, 44 Tex. Cr. R. 142, 68 S. W. 995, 100 Am. St. Rep. 849. These arguments and statements of state’s counsel were so obviously wrong and of such a hurtful nature that this judgment ought to be reversed, although charges were not requested; exceptions were taken at the time, and the court declined to withdraw the remarks from the jury, or to control counsel in his argument. I, therefore, cannot agree to the affirmance of this case, and believe the judgment ought to be reversed and the cause remanded for another trial.