In appellant's motion for rehearing he stresses mainly the fact that in his bills 2, 12, 13, 14, 15 and 16 the matters objected to were in fact certified by the trial court to be prejudicial, harmful, etc., and in some instances outside the record. We have given all the complaints our careful attention. Examining bill No. 2, we observe that *Page 526 same sets forth a question asked by State's attorney of a defense witness, which was answered before appellant had time to object. The objection when made was sustained, and the jury were instructed not to consider same. Appellant now insists that not only was the question harmful, but he calls our attention to the fact that in said bill it is stated that the question was improper, prejudicial and inflammatory, injecting into the minds of the jury the proposition that notwithstanding they should find and believe that this killing resulted from an insane delusion of appellant, he should not be acquitted, because he might have the same delusion again and kill another man, — appellant contending that the bill containing such fact statement is approved, and that this amounts to a certificate of the trial judge to the harmful character of the question. Where the bill contains no recital of the facts or circumstances surrounding or leading up to the question, or other matter which is certified to by the court as being harmful, prejudicial, etc., it might become necessary for us to accept the approval of such bill as a binding certificate of the harmful and evil character of the matter under consideration, but in a bill such as the one before us, wherein we have set out at length the testimony and circumstances surrounding the matter complained of, — we must be allowed to exercise our own discretion regarding the question or matter deemed objectionable. We are not led to believe from an examination of the recitals of the facts in the bill that the question was an improper one. The question is set out in our original opinion. We are unable to make application of what we said in Smith v. State, 117 S.W. 970, or in Reeves v. State, 35 S.W.2d 713. In the Smith case the matter there discussed was a statement shown to be dehors the record and coupled with a personal appeal and promise on the part of the State's attorney to help the accused if the jury should convict.
Our attention is called to the fact that in each of said other bills the trial judge certifies that there was nothing in the record to warrant the remarks of counsel for the State, and that said remarks were prejudicial and inflammatory. Reeves v. State,35 S.W.2d 713, is cited in support of appellant's contention that a certificate of the trial judge to a bill of exceptions, to the effect that an argument is not supported in the record and is prejudicial and inflammatory, places this court in a position in which it can do no less than to reverse the judgment of conviction.
The first case on the point urged by appellant was Roberts *Page 527 v. State, 27 S.W.2d 159. An examination of the record in that case discloses that each of the bills of exception bringing forward the argument of which complaint was made, embraced a certificate to the effect that said argument was not warranted by the evidence, was out of the record, was calculated to inflame the minds of the jurors against the accused, and was not responsive to nor warranted by any statement or argument made by counsel for the defendant. None of the bills contained any of the evidence adduced upon the trial. The circumstances under which the argument was made were not disclosed by the bills. In short, the bills only showed the argument and the objections thereto, together with a statement by the trial court that the argument was not supported by the evidence, was prejudicial, etc. In the absence of any showing in the bills that such recitals by the trial judge were not true, the conclusion was reached in Roberts' Case that this court was bound by the statement that the argument had no warrant in evidence and was prejudicial. In the course of the opinion the court said: "If such recitals do not state the facts, they should not be approved. If such recitals are true, new trials should be granted." Manifestly, we were not dealing with a situation in which the bills of exception in themselves showed the facts and circumstances in evidence upon which the counsel for the State predicated his argument. McKee v. State, 34 S.W.2d 592; Traylor v. State, 47 S.W.2d 310; Horton v. State, 61 S.W.2d 843; Bryan v. State, 70 S.W.2d 715, and Reeves v. State, supra, are other cases on the point under consideration. An examination of the record in each of said cases discloses that, as in the case of Roberts v. State, supra, the bills of exception merely set forth the argument and objections thereto, together with the statement of the trial court that said argument had no support in the evidence, was prejudicial, etc.
Looking to the bills of exception in the instant record, it is observed that bill No. 11 sets forth in great detail the evidence adduced upon the trial, it being shown in said bill that appellant drove to the home of the deceased at night and assassinated him. After setting forth the evidence, the following recital is made in said bill: "The foregoing substantially is the state of the record and there being nothing in the record to warrant the following prejudicial and inflammatory argument of the State's attorney, in his opening argument the State's attorney made to the jury the following inflammatory, prejudicial and unwarranted argument, to-wit: `Leon Kemp *Page 528 (deceased) is not here. He is lying under the sod and cannot tell you what to do with this defendant.'"
It is stated in the bill that said argument was made in connection with the plea of the district attorney to the jury that they inflict the death penalty. Considered in the light of the recitals of fact embraced in said bill, it is manifest that the argument was not inflammatory and prejudicial. In such case we are of opinion that the statement in the bill that the argument was unwarranted and prejudicial is no more than a conclusion of the trial court upon facts stated from which we are at liberty to hold that he reached an erroneous conclusion, a situation entirely different from that presented by a bill which sets forth no facts in evidence and leaves us in the dark as to the circumstances under which the argument was made, merely showing the argument the objections thereto, and the statement by the trial court that said argument was not supported by the record, was prejudicial, etc. The distinction between the situations mentioned is obvious. In the case before us the testimony is set forth in the bill itself as well as the circumstances under which the argument was made, all of which show that the statement that said argument was not supported, etc., was a mere conclusion. The facts being stated in the bill and certified to by the trial judge, this court, in examining the bill, is in a position to determine whether the argument was proper. It would seem clear that there being nothing more in a bill of exceptions than a statement by the trial judge that the argument was unwarranted, inflammatory, etc., this court would find itself shut up to the position of compulsory acceptance, without opportunity to exercise any discretion in determining whether the bill presents error. We are not confronted with such unfortunate situation in this case, and must ourselves pass on whether there be merit in appellant's complaint, in the light of the facts set out in the bill. We find none.
In bill of exceptions No. 12 it is shown that the district attorney stated in argument that the wife of appellant should have taken a gun years ago and killed the appellant. As in bill of exceptions No. 11, it is stated in the bill that the argument was improper, prejudicial and unwarranted by the record. The testimony adduced upon the trial is set out in much detail, it being shown in said bill that appellant had for several years persisted in accusing his wife of having sexual intercourse with other men; that he had told his children that their mother was an immoral woman; that he had stated, in effect *Page 529 that two of said children were bastards. In short, the bill shows that appellant had been for a long time mistreating his wife and making false accusations against her. As in the case of bill of exceptions No. 11, we are in a position to determine from the facts shown on the face of the bill and the circumstances under which the argument was made, that it was not of that prejudicial and inflammatory nature requiring a reversal of the judgment. The facts and circumstances shown in the bill might show that the argument was of doubtful propriety, but we do not deem same of such prejudicial and inflammatory character as to demand reversal, and the stated conclusions of the court will not be accepted as a binding certificate that the argument is of such kind. The distinction between said bill and the bills dealt with in Roberts v. State, supra, and the other cases hereinbefore mentioned, is the same as that mentioned in our discussion of bill of exceptions No. 11. The statement of the State's attorney put no harmful fact before the jury, whose verdict in this case negatives any idea that they were prejudiced against appellant.
It is shown in bill of exceptions No. 13, among other things, that appellant's wife testified upon the trial that she told appellant shortly prior to the homicide that she had had intercourse with deceased. In addition to this, evidence adduced upon the trial is set forth in great detail. The same statement relative to the argument being unwarranted and improper is shown in this bill as is embraced in bills of exception 11 and 12. The argument complained of was as follows: "Do you think that that good woman (referring to defendant's wife who was his principal and only witness on the defensive theory of homicide without malice) made any such statement to this defendant? The idea is preposterous. They had to have something like that in this case to save the defendant's hide." Manifestly, the district attorney had the right to discuss the truthfulness of appellant's wife in this regard, and to urge the jury to disbelieve the testimony she gave in appellant's defense. We think the bill is in the same attitude as the bills hereinbefore discussed, that is to say, the facts and circumstances shown in the bill justify a different conclusion from one that the statement was unwarranted, etc., and amounts to no more than a certificate on the part of the trial judge, which is not binding on this court. What we have said applies also to bills 14, 15 and 16.
We have carefully examined the other bills of exception referred to in appellant's motion for rehearing and are constrained *Page 530 to hold that they were properly disposed of in the original opinion.
The motion for rehearing is overruled.
Overruled.
MORROW, P. J., absent.