It appears from bill of exceptions No. 3 that during the trial there were a number of spectators in the court room and that state's counsel used the following language:
"Turn him loose if you don't believe him guilty; if you don't believe he did the crime. And if the defendant is guilty and has manufactured such a diabolical defense as his defense seems to be, give him the highest penalty, and don't say to these bootleggers in the courthouse listening that he is not guilty."
Upon objection by defendant's counsel, the court verbally instructed the jury to disregard the statements, upon which the District Attorney further remarked:
"I will say this: You and the District Court try men. You have a right to believe you try men for the same offense and you have a right to believe they are in the courthouse awaiting trial."
This statement was also made the subject of objection, though the bill fails to show that the court acted upon it.
In the case of Tweedle v. State, 29 Tex.Crim. App. 591, Judge Davidson, in discussing an argument which was complained of as being improper, used this language:
"Concede that this argument was improper; it does not follow that the judgment should be reversed for this cause. The remarks must not only be improper, but they must be of such a nature as to be clearly calculated to prejudice the rights of the defendant. To reverse in all cases where counsel fail to confine themselves to the record would render trials farce. There is hardly a case of any importance tried but that during the *Page 309 progress of the trial some unguarded expression is used by counsel upon either side. It would be a remarkable coincidence if this were not true."
A distillery was located upon the bank of a certain creek. After watching it the officers raided it. The appellant and two other persons were present. According to the officers, these persons were engaged in operating the still. The appellant fled but was pursued and captured by the officers. The still was complete, in operation and making whiskey. Mash and a quantity of whiskey were found at the still. In the appellant's testimony he explained his presence with the statement that while hunting opossums at night and hearing voices he went to the still without knowledge of its location. Assurance that he was not an officer was demanded by and given to the persons who were present, after which they invited him to drink whiskey. He remained for that purpose, and at a very short time after his arrival the raid was made.
When no constitutional provision or mandatory statute has been transgressed, there is no inflexible rule governing the action of this court in passing upon arguments. The test of the effect of the remarks of counsel can only be made in the light of the evidence adduced and the verdict of the jury. It has often been said that remarks are sometimes so obviously harmful that they cannot be successfully withdrawn. The general rule is to the contrary, however, and we think, in the present instance, the evidence being quite sufficient to sustain the conviction the penalty assessed being the lowest, and the court having withdrawn at least a part of the argument, that a reversal would not be authorized. In Vernon's C. C. P., 1925, Vol. 2, under Art. 648, p. 86, etc., are collated a great number of precedents reflecting the action of this court upon the complaints of arguments of counsel. Many that are pertinent to the present case are collated under note 36, p. 123. As stated above, however, with the exceptions named, the facts and the results, as well as the nature of the particular case, are controlling in passing upon the complaints of arguments upon appeal.
The motion for rehearing is overruled.
Overruled. *Page 310