(dissenting).
During the closing arguments of the state before the jury, the following transaction occurred:
“Now, a while ago, when Mr. Mays said that he expected Andy Bryan to get up here and say ‘Convict,’ because that was his job as a Prosecutor — ■—that’s exactly his job as a Prosecutor, because he is prosecuting the guilty. We do not prosecute the innocent.
“Mr. Mays: Of course, Your Honor —Wait just a minute.
“Mr. Crouch: We don’t now and we never—
“Mr. Mays: Pardon me just a minute. We except to that argument, Your Honor. That’s very objectionable, and at this time we ask the Court to instruct the jury not to consider that. You heard it, didn’t you?
“The Court: I will instruct the jury that they are the judges of the facts in this case, and shall find the facts as they are.
“Mr. Goldsmith: Note our exception.
“Mr. Crouch: We do not prosecute the innocent and we never shall as long as I am District Attorney.”
I feel that error was properly preserved and these statements by the district attorney require reversal of the judgment
*880The juxtaposition of the statement, objection, and subsequent statement require this be considered as one transaction, without the need for a repetition of the objection. The purpose of the objection is to put the court and the offending party upon notice of the error allegedly committed, and to give them a chance, where possible, to correct it. This was done in the present case, and to require an objection to the subsequent statement, which was apparently made before the defense counsel’s words had stopped sounding, is to place an unreasonable burden upon the accused and to violate the intent of the legislature as manifested in Art. 759a, Vernon’s Ann.C.C.P., wherein they said: (in Sec. 2)
“(b) Formal exceptions to rulings on evidence, opinions or other actions of the court * * * are unnecessary * * * it is sufficient that a party, at the time the ruling * * * is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and if a party has no opportunity to object to the ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.”
The rule as to evidence in criminal cases is quite clear, and I do not here depart from it, though the civil rule is to the contrary, both in this jurisdiction and in others. See: Fort Worth & Denver C. Ry. Co. v. Thompson, 75 Tex. 501, 12 S.W. 742, 743; Fort Worth & R. G. Ry. Co. v. Jones, 38 Tex.Civ.App. 129, 85 S.W. 37; J. I. Case Threshing Mach. Co. v. O’Keefe, Tex.Civ.App., 259 S.W. 222, 226; Long v. Galveston Electric Co., Tex.Civ.App., 59 S.W.2d 228; Crispi v. Emmott, Tex.Civ.App., 337 S.W.2d 314, 318; Tucker v. Reil, 51 Ariz. 357, 77 P.2d 203; Mountain States Creamery Co. v. Tagerman, Cal.App, 237 P.2d 532, 39 Cal.2d 355, 246 P.2d 21 (Calif.); State v. Monninger, 182 N.E.2d 426 (Ind.); Gibbs v. Terry, 281 S.W.2d 712 (Ky.); Jakeway v. Allen, 226 Iowa 13, 282 N.W. 374; Bennett v. Gusdorf, 101 Mont. 39, 53 P.2d 91; Schears v. Missouri Pac. R. Co., 355 S.W.2d 314 (Mo.); Public Service Co. of N. H. v. Chancey, 94 N.H. 259, 51 A.2d 845; In re Ivory, 259 App.Div. 1046, 21 N.Y.S.2d 6; Citizens Bank of Nevada v. Robison, 74 Nev. 91, 323 P.2d 705; Webber v. Yaden, 373 P.2d 1007 (Ore.); Herstein v. Kemper, 19 Tenn. App. 681, 94 S.W.2d 76. See: 5 Am.Jur.2d —Appeal and Error, Sec. 626.
I do say that a common sense rule should be followed and that where transactions, are so interrelated and the ruling clear,, error should not be presumed to be waived.
Additionally, there is authority for consideration of this point, even though no. objection had been made. The holdings by both this Court and the civil courts of this-state reflect that if the error is so prejudicial that an instruction could not cure-the error — as where some mandatory provision of the statutes has been violated or some new and harmful fact is injected into-the case, the courts will consider the argument complained of and order a reversal of the case. King v. State, 156 Tex.Cr.R. 508, 243 S.W.2d 846; Ouellette v. State, 166 Tex.Cr.R. 328, 314 S.W.2d 106; Wiley v. State, Tex.Cr.App., 350 S.W.2d 22; Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054; Sutton Motor Co. v. Crysel, 289 S.W.2d 631 (Tex.Civ.App.).
In Brister v. State, 97 Tex.Cr.R. 395, 262 S.W. 82, the court was presented with the following argument:
“ T say to you, on my oath as district attorney, that there never was tried in this courthouse or any other courthouse-a man more guilty than Henry Brister is in this case. I say to you, on my oath as district attorney of this district,, that he is guilty, and that I believe him-to be guilty, and you will not be doing your duty as jurors under your oaths in upholding the hands of your officers if you do not convict him.’ ”
The trial court orally instructed the jurors, to disregard the statement, yet this Court reversed the judgment and said:
*881“The respect accorded to the office of district attorney by jurors in every case and to this district attorney would make us hesitate in any case before affirming a judgment when there appeared in the record a statement such as just quoted. We need not comment upon it. A statement made by a prosecuting officer that a man is guilty within his knowledge and belief, unless predicated on his opinion from the evidence, is bad enough; but when a statement is made with distinct reference to and under the oath of office, we believe the matter to be so far erroneous as that the instruction of the court to the jury not to consider it could not remove or prevent the injurious effect of such statement upon the jury.”
In Long v. State, 120 Tex.Cr.R. 373, 48 S.W.2d 632, a private prosecutor argued as follows to the jury:
“ T tried this case twice. I had to convince myself, beyond a reasonable doubt, that this lady was guilty beyond a reasonable doubt, before I could consent to help the State.
* * ⅜ ⅜ * *
“ ‘If we have convinced you in this case like we have convinced ourselves of the guilt of the defendant, you ought to have no trouble in arriving at a verdict.’ ”
The trial court again orally instructed the jury to disregard the remarks, and this Court again reversed the conviction, saying:
“The impropriety of counsel in argument putting before the jury his opinion of guilt or innocence of accused on trial has been declared repeatedly and consistently, as is reflected from the opinions of the court from the beginning of its history.
* * * * * *
“ * * * We have found no reported case in which the opinion of counsel expressed to the jury was couched in similar language to that employed in the present case. It must be admitted that it went further than a mere expression of opinion based upon facts developed before the jury. It carried with it the expression of an abiding conviction of appellant’s guilt, based upon preinvestigation by counsel. Such an opinion would or would not have weight with the jury in proportion as they did or did not have confidence in the judgment of counsel giving the opinion. In a case where the issue of the guilt or innocence of the accused was closely drawn, it might sway the balance against the accused. Necessarily, the effect of such opinion could not be demonstrated, and would be speculative. Whether the effect could be withdrawn by prompt action of the court, as was attempted in this instance, is likewise speculative, depending upon the case in its entirety.”
I do not construe the holding in Rancier v. State, 124 Tex.Cr.R. S2S, 63 S.W.2d 697, as vitiating the language used in Long, supra.
Possibly the best summation on this point is found in Spinks v. State, 157 Tex.Cr.R. 612, 252 S.W.2d 159. The prosecutor, there, said:
“ ‘I would not have filed the charge against this man if I had not known that he was guilty.’ ”
This Court, in reversing, noted:
“Such argument is never proper.”
See, also, the following cases which, among others, would support the findings: Hardy v. State, Tex.Cr.App., 13 S.W. 1008; Black v. State, 79 Tex.Cr.R. 628, 187 S.W. 332; McDuff v. State, 103 Tex.Cr.R. 668, 281 S.W. 1073; Dowd v. State, 104 Tex.Cr. R. 480, 284 S.W. 592; Rushing v. State, 139 Tex.Cr.R. 502,141 S.W.2d 607; Jones v. State, 151 Tex.Cr.R. 115, 205 S.W.2d 590; Alford v. State, 158 Tex.Cr.R. 632, 258 S.W.2d 817; Hickerson v. State, 162 Tex.*882Cr.R. 446, 286 S.W.2d 437. And see the annotation in SO A.L.R.2d 766, wherein the holding's throughout this country are collected.
Thus, here, the argument, as demonstrated by Long and Brister, supra, is so prejudicial that its effect could not be withdrawn from the jury. Additionally, the argument was objected to in a manner which the writer feels properly preserves the error, and I thus feel that the case should be reversed.
I respectfully enter my dissent to the overruling of appellant’s motion for rehearing without written opinion. I would grant the motion and reverse the judgment.