The petition for a rehearing is denied. We deem it necessary, however, to say that the original opinion is not to be construed as holding that where counsel for the defendant in his argument to the jury, departing from the record, comments upon facts and circumstances not appearing in evidence in the case, the district attorney will be justified in his reply argument in referring to matters and things which have no substantial basis in the evidence adduced upon the entire case. [17] Manifestly, such misconduct of counsel for the defendant, in any given case, occurring at the trial, or during the argument to the jury, will not suffice to justify similar misconduct of the district attorney.
The argument complained of in the instant case was, in effect, a statement, prompted by a suggestion from counsel for the defendant, that crime, as a result of the lax administration of justice, was on the increase and that juries should do their duty. Such an argument, it seems, would have been permissible even if it had not been prompted by counsel for the defendant. (People v. Molina, 126 Cal. 505, 508 [59 P. 34]; People v. Burke, 18 Cal.App. 72, 102 [122 P. 435].) *Page 558