(dissenting)
*615The sole ground for reversal presented is predicated upon the court’s refusal to declare a mistrial during the closing argument of counsel for the state because said counsel argued:
“The other statement that I don’t think he need to say, ‘That you’re going to ruin this guy’s life by putting him over here in the jail.’ It’s a reasonable deduction since he went into this that this isn’t the first time this man has been in jail.”
The trial judge sustained appellant’s objection and instructed the jury to disregard such remarks, but overruled appellant’s motion for mistrial.
Appellant’s counsel, who the evidence shows was the roomate of the appellant’s in their school days, had argued: “Make no mistake about the fact that you have ruined his life if you find him guilty because he has to go to jail. It’s not like — a murder without malice case where you can give him a suspended sentence# You’ve got to put him in jail and you’ve got to destroy him. * * *” This appeal, in effect, represented to the jury that appellant had not previously served time in jail for an offense.
If in fact the appellant had served one or more jail terms, it is apparent that the jury would have been misled by the argument that the jury would ruin his life if they convicted him because he would have to go to jail. On the other .hand, if appellant had not served time in jail for an offense, the remarks complained of would be so prejudicial as to require that a mistrial be ordered.
There are no formal bills of exception. If the objection to argument of state’s counsel is before us at all, it is by informal bill of exception under Art. 759a, Sec. 2c, V.A.C.C.P.
Art. 667 C.C.P., as amended in 1953 (Art. 667 V.A.C.C.P.) relates to informal as well as formal bills of exception. It provides in part that where by the argument complained of some new fact is thereby injected into the case the trial court, by qualification or otherwise, may require the bill of exception to reflect any reason whereby the argument complained of would not be error.
The trial judge does not appear to have been given the opportunity to require the record presentd as an informal bill to *616reflect “any reason whereby the argument complained of would not be error”, as required by said Art. 667 V.A.C.C.P. He did not approve the transcript of the argument.
The motion and amended motion for new trial are silent as to any error in the argument or in the overruling of the motion for mistrial.
This case, I think, demonstrates the correctness of the views I expressed in Kinnebrew v. State, 168 Tex. Cr. Rep. 198, 324 S.W. 2d 554, 556, and in Wells v. State, 168 Tex. Cr. Rep. 228, 324 S.W. 2d 860. The presumption is that the trial judge ruled correctly when he declined to order a mistrial during the closing argument.
I would affirm the conviction.