The argument filed in this case by counsel for appellant has convinced us that the disposition heretofore made of the appeal was erroneous, and that the argument of counsel for the State was such a grave invasion of the rights of appellant and so violative of the rules of fair discussion as, under the facts, not only to justify but require a reversal.
As stated in the original opinion, the appellant made what seems to us to be a very strong showing of insanity. The facts of the burglary were proven beyond doubt. The only defense for all practical purposes was that of insanity. Therefore, it was of the highest importance that this issue should have been, as it was, fairly submitted to the jury, and that in the discussion thereof there should have been no such departure from the rules of fair debate as would have illegally imperiled or weakened the defense. The particular matter we have in mind is, perhaps, not as fully stated in the original opinion as may seem desirable. The State's attorney made the statement to the jury, as set out in the bill, as follows: "I want a verdict of guilty in this case, because I do not want you to set a precedent in this county for turning people loose on a plea of insanity. If you turn this defendant loose, then these lawyers, like Stafford and Geddie will be pleading insanity for everybody that is prosecuted, and if you are going to turn this defendant loose you had just as well tear down your courthouse and burn your docket." Counsel for the defendant excepted while the district attorney was *Page 570 making said remarks on the ground that same were out of the record and were unfair to the appellant and were prejudicial to his cause, but the bill recites the court did not stop the district attorney, nor in any way interfere with the argument being made by him, nor rebuke him. Appellant's counsel requested a charge withdrawing the first sentence of the above remarks, and instructing the jury that the same were improper. There was no instruction requested in respect to the remaining part of the language above quoted. The portion in respect to which the instruction related was not of a grave character, and no instruction was requested in respect to the only portion of the argument that could, as we believe, in the nature of things, have prejudiced appellant's cause. The bill further recites that shortly after the use of the language above complained of and while the district attorney was continuing his address to the jury and continuing the line of argument as set out in his remarks above quoted, that among other objectionable remarks made to and in the hearing of the jury as an inducement to them to render a verdict of guilty in this case, the following statement: "Convict this defendant, and if you want to recommend executive clemency — if you want to pardon — come to me and I will help you get him pardoned." It is further recited that at once appellant's counsel objected and excepted to this speech on the ground that same was an argument outside of the record and prejudicial to appellant's cause and that the court failed to stop the district attorney, or say anything to him or to take any notice of said language or of the appellant's objections thereto, except to turn to appellant's counsel, and in a low tone tell him to prepare a special charge embracing the objectionable language and he would give the charge to the jury. A charge was prepared and given by the court. In approving this bill of exceptions the court allows the same with the statement that when the language last above quoted was complained of, he was writing his charge and when counsel for appellant called his attention to it, the district attorney at once began another line of argument. It is contended by counsel for appellant that in the light of the entire record, this argument was so obviously hurtful and prejudicial as that notwithstanding the instruction given by the court, the judgment should be reversed. It is urged, and such seems to be the fact, that this statement was not provoked by anything said by them, and the further statement seems clear, that it was out of the record and highly improper. So, the question recurs, was it of such gravity as, in the light of the entire case, obviously or reasonably to have prejudiced appellant's cause? Construing it in the light of the former statement that he did not wish the jury to set the precedent of acquitting defendants on the ground of insanity, it was susceptible to the construction of a plea for a conviction not on the ground that appellant was guilty, but for fear of the precedent and that to induce, if not coerce, the jury into rendering a verdict of guilty, he *Page 571 holds out to them the promise to aid in securing a pardon. In this case the jury gave the appellant the lowest penalty known to the law. This was some evidence that the issue of insanity must have been seriously considered. May not the speech of counsel for the State have induced an agreement on a verdict of guilty by holding out to the jury the hope, whether true or false, that he would aid in securing a pardon, and that as the chief law officer of the State such aid would be effective? Under the precedents which we have carefully examined, we believe in the light of the entire record, that we can not but hold, on further reflection, that this argument was violative of the rules of fair discussion, and probably, if not certainly, hurtful and injurious to the rights of appellant. In the recent well considered case of McKinley v. State, 52 Tex.Crim. Rep., Judge Davidson discusses a matter somewhat similar to this, in which he uses the following language: "In making his closing speech the county attorney used the following language: `Gentlemen of the jury: I want you to convict this defendant on the evidence in this case. It is true he testifies in his own behalf that he did not sell whisky to the prosecuting witness, but the prosecuting witness says that he did, and it is true the prosecuting witness is a negro, but I would believe the negro before I would believe a man like the defendant, who has time and again paid the penalty for the violation of the people's local option law, and goes manifestly without any principle around over the country boot-legging whisky in open violation of our local option law; and that is the kind of a man that is being tried before you.' The bill recites these remarks were not supported by the evidence in the case; that they were immaterial and irrelevant, outside of the record, and were erroneously recited by the county attorney. Exception was reserved. It is further shown that the court instructed the jury not to consider such remarks, but it is claimed that such instruction did not withdraw the prejudice created thereby from the minds of the jury. There was no evidence in the record that appellant had been previously convicted for violations of the local option law, nor to the effect that he had been boot-legging whisky over the country. Appellant had not put his character at issue. Permitting attorneys for the prosecution to dwell in argument on the character of a defendant when not in issue, in a way calculated to prejudice him before the jury, is error. See Turner v. State, 39 Tex.Crim. Rep.; Pollard v. State, 33 Tex.Crim. Rep.. Nor is vituperative and abusive argument permissible, and a conviction obtained in this manner is unlawful, and where the record on appeal shows such was permitted to prejudice the accused before the jury, the Appellate Court should not hesitate to set it aside. See Crawford v. State, 15 Texas Crim. App., 501; and Parks v. State, 35 Tex. Crim. 378. And it is error for counsel in argument to state facts not in evidence. See Tillery v. State, 24 Texas Crim. App., 251; Orman v. State, 24 *Page 572 Texas Crim. App., 495; Clark v. State, 23 Texas Crim. App., 260; Robbins v. State, 47 Tex.Crim. Rep., 11 Texas Ct. Rep., 560; Bell v. State, 56 S.W. Rep., 913; Harris v. State, 17 Texas Ct. Rep., 815; Harris v. State, 50 Tex.Crim. Rep.; 17 Texas Ct. Rep., 270, 70 S.W. Rep., 218; 9 Texas Ct. Rep., 813; and White's Code of Crim Proc., pages 498, 500 and 501, for collation of authorities. In our opinion the statements in the argument of the closing speech for the State were of such character that the conviction ought not to be permitted to stand. Usually the instruction of the court to the jury to disregard unwarranted remarks by counsel will be regarded sufficient to prevent a reversal, but where they are of a very damaging character and in cases that inflame or have a tendency to inflame the public mind, a different rule obtains."
This was a case of misdemeanor. This is a felony case. See also Puryear v. State, 50 Tex.Crim. Rep.; Taylor v. State,50 Tex. Crim. 560; Stevison v. State, 48 Tex. Crim. 601, and Davis v. State, 114 S.W. Rep., 366. The reports of this court show how frequently we have been compelled to reverse cases for the improper argument of counsel for the State. Why they will persist in such improper argument, it is difficult to conceive. We have no doubt in this case that counsel entertained the sincere conviction of appellant's guilt and that his use of the vigorous language complained of was due to his zeal and founded in his fidelity to the interest of the State. But however much such zeal, and however much such fidelity should be applauded, counsel for the State should always remember that in every criminal case they are bound and committed by every suggestion of duty and by every obligation which can bind and affect them to confine their argument to a fair discussion of the law and the facts of each case. We think on further reflection that we were in error in this matter in the original opinion and that justice demands and our duty makes it a pleasure to acknowledge the error and to set aside and hold for naught our former judgment of affirmance.
The motion is granted and the judgment of conviction set aside and the cause remanded.
Reversed and remanded.