The District Attorney has filed a vigorous motion for rehearing insisting that if the argument of the county attorney was improper the prompt action of the court in withdrawing same from the jury cured any error in the matter. A number of cases are referred to in support of the motion. *Page 43
Particular cases are of little aid in solving a question here presented. In dealing with alleged improper arguments and the effect of their withdrawal from the jury general principles may be stated, but after all, the argument, to cause a reversal, must not only be improper, but must be of a material character,and calculated under the circumstances of the particular caseto injure the accused. Todd v. State, 93 Tex.Crim. R.,248 S.W. 695. It was said in Gatlin v. State, 113 Tex.Crim. R.,20 S.W.2d 431:
"It is the duty of this court, and the due and proper administration of justice demands, that not the words alone shall control, but, in estimating the argument of which there is complaint upon appeal, the nature of the offense, the evidence adduced, and the verdict rendered, are essential elements."
It follows that the same argument under certain circumstances would not be improper, or might be withdrawn, whereas, under other circumstances a contrary rule would obtain. In applying the principles suggested to the present case the entire record before us should be considered. It must be remembered that the case is one of circumstantial evidence, and to say the least, the opinion and conclusions drawn and testified to by the expert witness are most unusual.
There was found upon appellant's clothes blood spots. Appellant testified that two musicians, a man and his wife, were at his house on the night of the alleged homicide; that they became involved in a fuss; that the husband slapped the wife, causing her nose to bleed, and in separating them appellant got blood on his clothes. It was the State's contention that the blood on appellant's clothing was from his own wife from a wound inflicted on her by him after the musicians had left appellant's house. The blood on appellant's clothing was one of the strongest circumstances against him. These musicians had been present at a prior term of court but were not present at the instant trial. Under the circumstances stated the County Attorney in his opening argument told the jury that he had talked to the musicians at the previous term of court, knew what they would testify, and that he was not afraid to put them on the witness stand. This was a clear intimation to the jury that, if present, the testimony of the absent musicians would be favorable to the State. The record shows that if appellant killed his wife, as claimed by the State, these musicians were not then present. Therefore, the only evidence they could give favorable to the State would be to deny that any quarrel or fight occurred between them at appellant's house, and that no blood from either *Page 44 of them got on appellant's clothing. It occurs to us that such is the clear intimation in the argument of what the witnesses would testify. Under the facts and circumstances here present we are unwilling to say that even the prompt effort on the part of the court to obviate the harm by withdrawing the argument was availing.
We pretermit a discussion of the sufficiency of the evidence. The facts are unusual and have given the court much concern. In the event of another trial either the State or appellant may be able to supplement the expert evidence upon which the conviction largely depends.
In the original opinion we find one expression which is not entirely accurate. We said "The appellant's wife had a hole in her sinus about the size of a .38 caliber bullet." This hole did not penetrate the sinus; it was in the forehead just above the bridge of the nose, and was only about one-quarter of an inch in depth. Blood had collected in the sinus, which the doctor testified resulted from the blow. The blood was not exposed to the air, and was coagulated in the sinus.
The State's motion for rehearing is overruled.