PRENDERGAST, Presiding Judge.
Appellant was indicted by the grand jury of Goliad County in two counts,—one alleging that Elie Pointer murdered George Gosnell and that appellant was an accomplice thereto. The other that Pointer murdered Gosnell and that appellant was an accessory thereto. Both counts were submitted to the jury for a finding and appellant was found guilty as an accomplice with a life sentence in the penitentiary imposed as his punishment.
As this ease will be reversed we will not discuss the evidence but will state it may have been sufficient to show: That the deceased’s business was to dig canals, build dams and do such like work; that he was a married man, living with his wife, and that they had two children, one a girl about nine years, the other a boy, about seven years, of age. Gosnell’s business and the location of his work required that he and his family live in tents near his work and that they did so at the time he was killed; that appellant was also a young man and married, but at the time of the killing and for some time prior thereto had been separated -from, and was not living with, his wife; that he was an ordinary laborer doing such work as Gosnell’s business called' for; that a few months before the killing Gosnell had had appellant hired as a hand
and appellant had worked for him, hoarding with Gosnell and his wife during such time; that for a few weeks just prior to the killing, and at the time thereof, appellant lived and worked and boarded some miles distant from where deceased and his wife and family were then living; that Elie Pointer was a young man, and at the time and for some time prior to the killing, worked for Gosnell and boarded with Gosnell and his wife, and that he and appellant were well acquainted with one another and were rather intimate with one another; that for some weeks, or perhaps, months, just before the killing, the appellant and GosnelPs wife became infatuated with one another and an illicit sexual intimacy existed between them whenever they could get the opportunity to indulge, and they were planning and scheming in various ways to get together as often as they could and thus indulge; that Gosnell was murdered late in the evening, or just about night, on Saturday, July 8, 1911, near his camp. The physical facts and the uncontradicted evidence show that he was shot with three balls in the back of the head behind the right ear and that his head was powder-burned from the shots. The physical facts and uncontradicted evidence further show that he was in his buggy at the time he was shot, and that the shooting and killing must have occurred at a semewhat secluded place not far from his tent, and that his body was taken in a buggy a circuitous route a distance of about a mile and a half into a bottom,—a secluded place, and thrown out from the buggy face downward. Either of the three shots in the back of the head were fatal. The buggy was tracked from where the shooting must have taken place by the blood running therefrom on the ground, this circuitous route of .about a mile and a half to where the body was thrown out. Blood was all over and all in his buggy when it was found; that shortly before the killing the appellant called upon Mr. Bailey, one of his friends, and asked him if he could keep a secret and that he wanted to talk with him. He thereupon told Bailey, in effect, that he and Mrs. Gosnell wanted to get her a divorce from Gosnell, and wanted to know how much of Gosnell’s property she could get, and that he was going to take Gosnell’s wife away from him, Gosnell; that Friday morning before the killing, Gosnell, the deceased, had said Pointer to take him from his camp to the nearest railroad station some six or eight miles therefrom, and that the deceased that morning took the train at that point and went some miles distant on business to another point on the railroad, and that he was absent the balance of Friday, Friday night and until Saturday evening, when he returned to the railroad station and found Pointer there with his, deceased’s, buggy and horse; that the appellant knew that the deceased would be away from his camp and wife Friday evening, that night, and not return thereto until Saturday, and that he, on Friday evening, went on the railroad to the same station where the deceased had taken the train, and got off at the train at that town, hired an automobile and, at his instance, was taken to a point in sight of and
very near the deceased’s tent, telling, when he hired the automobile, to take him to Gosnell’s camp, that he was going to Gosnell’s camp; that when he and the parties reached a point in sight of and not far from Gosnell’s camp, a woman (evidently Mrs. Gosnell) was seen in front of the tent and appellant and they waived at one another; that the appellant then told the parties not to take him nearer the camp, and that he then got out and they returned in the automobile; that he stayed with Mrs. -Gosnell that evening, that night and until some time the next morning, Saturday morning, indulging their illicit sexual relations. Knowing that the deceased would return to his camp some time Saturday, the appellant had said Pointer to take him, Saturday morning, to a point six or eight miles from this camp to said railroad station so that he would not be seen by deceased, and the deceased would not know that he had been to his camp and stayed with Mrs. Gosnell that night; that deceased reached the said town on the same train that the appellant boarded that day, Saturday, he getting on at a different point and different coach from where deceased got off, and getting on before the train stopped in such a way as to avoid the deceased seeing him. The deceased that evening found said Pointer at said railroad station with his, deceased’s, horse and buggy; that later in the evening said Pointer took deceased in the buggy back towards deceased’s tent; that while at this town and before they left, the deceased drank intoxicating liquors to some considerable quantity, and become somewhat intoxicated, if not drunk; that said Pointer, as stated above, when they reached a point near deceased’s camp, killed him and carried his body off and dumped it in the river bottom; that Mrs. Gosnell knew that Pointer had killed him immediately after he was killed; that she had one of their horses saddled and she took one of the children with her from there some mile, or such a matter, to a neighbor’s, and that Pointer followed with the other child, and that she there advised Pointer to leave, furnished him a horse to leave on, and he did so that night. She did not go to the body of her husband, nor attempt to find it. The neighbors and other friends, having been informed of the killing during the.night, went very early the next morning to hunt for the body and tracked it by the blood and buggy tracks, as stated above, from where the body was first shot and deceased killed to where the body was thrown out and sought to be hid; that appellant and Mrs. Gosnell had hired, or tried to hire, Pointer to kill the deceased Friday night and early Saturday morning, while they were together in their illicit relations; that upon Pointer leaving Mrs. Gosnell and the neighbors to which they had gone just after the killing, he went across the country that night some twenty miles or more to where appellant was, and at once hunted him up; that appellant the evening before, along about 4 or 5 o’clock Saturday evening, borrowed money from some different parties telling them that he had a friend who had gotten into trouble and that he wanted to furnish him the money so that the friend could leave; that he expected Pointer to take the train and meet him at another railroad station and
went to this latter station early that night expecting to meet Pointer soon after midnight, but the train came and Pointer was not thereon; that he and his companion then returned to his boarding house. Pointer, instead of catching the train, it seems, did not do so, but went across the country that night to where the deceased boarded, found him very early in the morning before or about daylight, awoke him and they at once went off together and remained in such a way as to keep out of sight during that day; that the appellant gave to Pointer the money he had borrowed and his watch and had him to leave and hid out. Either that day or the next day Pointer was apprehended and arrested at his hiding point. He had intended to make his escape therefrom but was apprehended before he could do so. On his person when arrested was found, among other things, appellant’s watch. Appellant was arrested soon after Pointer was. In his valise in his boarding house were found some letters from Mrs. Gosnell to him which were clearly identified and introduced in evidence. One dated in June, 1911, and the other on July 4, 1911,—both in the most endearing terms, and tending to show most clearly the illicit sexual relations existing between them, and with other evidence, a motive by appellant to get rid of Gosnell.
Appellant has a large number of bills of exceptions and complaints of the proceedings on the trial. They relate to evidence admitted and excluded, to the manner of the examination of the witnesses by the district attorney, to questions by him to various witnesses, to his argument before the jury, to the charge of the court and to other matters. It will not be necessary to take up each of these separately. But we will discuss such of them as will be necessary to dispose of the questions raised, and likely to occur on another trial.
The same grand jury that indicted appellant also indicted Mrs. Gosnell, the wife of the deceased, for accomplice to the murder of her husband. The venue of both eases was properly changed from Goliad County to Bee County and the trial of appellant had in the District Court of Bee County in February, 1913.
The record shows that in their respective eases appellant and Mrs. Gosnell each made a motion to sever their trials and Mrs. Gosnell sought to have appellant tried first, and appellant sought to have her tried first; that they could not agree which should be tried first. Under the circumstances the court did not err in overruling appellant’s motion to require that Mrs. Gosnell should be first tried, and, as the record and bill, as explained by the court, show that they failed to agree themselves, the court thereupon directed that appellant should be first tried, and, in addition, that if he had required Mrs. Gosnell be first tried, it would have resulted in the continuance of the appellant’s case. The court followed strictly the statute in his action. C. C. P., arts. 727 and 728.
By one bill appellant complains that the court erred in overruling
his application for a third continuance. It is unnecessary to discuss this as this will not arise on another trial.
As stated in a bill, “to show the character of the defendant, to show his confidence in his cause, and further to show the treatment he received in jail,” he complains that the court would not let him prove by the witness H. B. Hanley that while he was confined in the Goliad County jail he didn’t take advantage of an opportunity to escape, but informed the officers, and wanted to prove the particulars of how the other prisoners escaped; that one of them was afterwards captured and sentenced to be hanged, and that thereafter the sheriff kept him in close confinement until he was transferred to Bee County. The State did not attempt to show flight by appellant, nor escape by him. If this had been sought by the State, then he could have proven that when he had an opportunity to escape from jail, he did not do so. But he could not prove the particulars he offered to prove, for the purpose stated.
As qualified by the court no error is shown by the district attorney asking the witness Hanley the question: “You take the same interest in bringing all criminals to justice, don’t you?” .
What the witness Bego testified, to the effect, that a person of ordinary hearing could have heard the coming of an automobile from the point where they stopped to the tent of Gosnell, was admissible.
Appellant’s next bill, as qualified by the judge, wherein he was cautioning the jury about their conduct during the trial, shows no error whatever.
The next bill, No.
7,
sets out only and merely some questions that the district attorney asked certain witnesses, over his objections, some to the effect that they were leading questions, others to the response of the district attorney, when such objections were made and such like matters. None of these questions, nor any of this proceeding, were of such material nature as could have injured appellant’s right. The court explains, in approving the bill, that in each instance he instructed the jury not to consider the remarks of the district attorney for any purpose and withdrew the same from the jury.
The State produced and thoroughly identified the written testimony of Pete Miller, taken on the examining trial of the appellant at which he was present, and heard the testimony, through his attorney, and cross-examined him at the time. The bill shows that when this was done the jury was retired and the court heard the examination of the witnesses for the purpose of determining whether or not said Miller was without the-jurisdiction of the court in such a way as that this testimony could be admitted. The bill then shows, by question and answer, the testimony of several witnesses on the subject, and that none of this testimony went before the jury, but it was all before the court alone. One of the witnesses identified a letter which he had received from Miller from some foreign point, “St. Michael, Goren,” dated October 14, 1911, in which he told the witness that he was still going
to sea; “I am not coming back until next year, and then I will stay for good.” The indications by this was that he was then going from St. Michael, Goren, to sea. By the district clerk was produced a large number of subpoenas to various counties by both the State and the appellant, for this witness, all returned showing that the witness could not be found. One to Victoria County, the return of September
12,
1911, showed: "I have seen a letter signed Pete Miller and purporting to be written by this witness and in which reference is made to testimony of witness on examining trial of this case, stating that he was on his way to Hamburg, Germany, and in the future could be reached by letter addressed to him in care of C. C. Schneider.” The return on another subpoena to Victoria County, under date of March 7, 1912, showed the process unexecuted; that he was informed the witness was now in France. The testimony of the sheriff of Victoria County showed that he had made every effort in his power to locate the whereabouts of this witness; that be had written and wired all over the country and that the witness was a fugitive from justice and that he had a warrant for him and had had for a long time and had made every effort to locate and arrest him. From all this testimony introduced before and heard by the judge, we think it justified his conclusion that the witness was beyond the jurisdiction of the court and not in the State, and he did not err in admitting the said testimony of Miller.
Of course, appellant’s objection by another bill that this written testimony of said Miller was not admissible, because the clerk of the court had put his file mark and the date thereof on the back of this written statement, is not well taken; this could not have made the evidence inadmissible.
Appellant’s next bill complaining of the questions and manner of examination by the district attorney of the State’s witness George Simmons is quite meager. It is more in the nature of showing irritation by the district attorney to what he regarded as frivolous objections by the appellant’s attorneys and the criticism of him by them, and his reply to the criticism, than anything else. The court instructed the jury not to notice side-bar remarks of the district attorney. The court should always, by whatever means is necessary, require attorneys for both sides to properly conduct examinations of witnesses, and not indulge in side-bar remarks. This cause of complaint will. doubtless not arise on another trial.
By his next bill appellant complains that the court erred to his injury, which entitles him to a new trial, because he failed to instruct the jury at the noon recess on February 12th not to discuss the case among themselves; whereas, he had previously so instructed them at each of the other recesses. The qualification of the bill shows that when the jury was first organized, and at the first recess, he fully instructed them on this matter and that he repeated this from time to time, but seems to have omitted it at this particular' recess. The court in his qualification, further says: "And the court being persuaded to
believe from the general conduct of the personnel of the jury throughout the long trial of this case that no lunatics or idiots had been selected on same, thought it unnecessary to go over the matter of fully instructing them on each occasion they were permitted to retire from the jury box, but was content to inform them that they were under the same instructions heretofore given them.” Of course, this presents no error whatever.
By another bill, appellant complains that the court permitted proof to be made that the appellant’s watch was found on, and taken off of, Pointer’s person when he was arrested. This proof was admissible.
. Appellant objected to the witness Sherley Barber’s statement that he tried to borrow money from Bailey. The court states, in his qualification of the bill, that the witness stated he was approached by appellant and requested by appellant to loan him $2; that the witness tried to get the money from one Bailey, and got it from Bailey and delivered it to defendant and that defendant stated that he wished to get the money to give to Pointer to help him off and did so. This testimony was admissible as qualified by the court.
By another bill, appellant complains of the introduction in evidence of the letters shown to have been found in appellant’s grip, written to him and signed by Mrs. Gosnell. The court, in qualifying the bill, states that the grip or suit case, within two hours after it had been deft by appellant at the house of Mr. Simmons, was taken charge of by the sheriff and afterwards claimed by and turned over to him as his property and that the letters were found in the grip when it was first taken possession of by the sheriff. The letters were clearly identified as letters from Mrs. Gosnell and they were addressed to and received by appellant. They were admissible.
Of course, there is nothing in appellant’s objection to the introduction of these letters because they were read to the jury before the file mark of the clerk was put on them. Whether they had or had not such file mark could not affect their admissibility.
The State clearly proved that in the case against Elie Pointer, charged with the murder of Gosnell, he was duly warned, and made a written statement or confession about killing Gosnell. This written statement was produced, identified and introduced in evidence. It is very lengthy. We deem it unnecessary to copy it. In it Pointer admitted he killed Gosnell, but claimed he did so in self-defense. Appellant made these objections to its admission in evidence: 1. It is in violation of the Federal Constitution, which guarantees to every defendant the right to be confronted with the witnesses against him. 2. “It is in violation of the State Constitution and the Bill of Rights.” 3. It is not the best evidence of Pointer’s guilt, but the record of his conviction is the best. 4. It is largely hearsay. 5. It is vague, indefinite, unintelligible, the first and last part are contradictory, and its admission will be highly prejudicial to his rights. 6. It is admitted solely to show the principal’s guilt, and is in violation of the Constitution as the principal’s
guilt is part of the proof against him, and necessary to be shown before his guilt as an accomplice can be shown. 7. That the acts, declarations, and confessions of a co-conspirator, after the commission of the crime, are inadmissible against another co-conspirator. 8. That even though limited by the court solely to show the principal’s guilt, it would be impossible to limit the same in the minds of the jury. 9. It is the unsworn statement in jail, with death staring him in the face, and he would tell anything to save his neck. 10. That the court refused to restrict and limit to that part only surrounding the actual killing and eliminate all hearsay. 11. It is read to the jury before being filed, .and not filed till after it was read. These are all of his objections.
The court plainly, in his charge, told the jury, said statement or confession was admitted in evidence for the purpose of showing or tending to show that said Pointer killed Gosnell, and not to consider it for any other purpose. In approving appellant’s bill, the court stated he so limited it.
In the trial of an accomplice it is necessary for the State to prove-the guilt of the principal. Testimony which would be admissible against the principal, if he were on trial, is admissible against the accomplice when he is tried. This is the settled law. This court has uniformly held that the statement or confession of the principal is admissible against the accomplice. Thomas v. State, 43 Texas Crim. Rep., 20; Hamlin v. State, 39 Texas Crim. Rep., 579; Crook v. State, 27 Texas Crim. App., 198; Arnold v. State, 9 Texas Crim. App., 435; Cohea v. State, 11 Texas Crim. App., 622; Simms v. State, 10 Texas Crim. App., 131; Bluman v. State, 33 Texas Crim. Rep., 43. As limited by the court and the purposes for which the court admitted it, this statement was admissible.
By another bill appellant complains of the testimony of Dr. Chilton, that he made an examination of Pointer while he was in jail and that Pointer had one pretty bad lung and that he also examined his mental faculties and that in his mental faculties he could be influenced. It may be, in view of Pointer’s claimed self-defense, testimony as to his physical condition was admissible, but not his mental condition showing he could be influenced.
The court did not err in excluding the hearsay testimony of Pointer’s father as to the age of said Elie Pointer.
Appellant complains that the court would not let him prove by Lonnie Shelton, who was in jail at the time Pointer was, that he told her he killed Gosnell to get his money; that he thought he had about $600 when he killed him; that he turned his pockets all wrong side out and found he had no money. The court, in explaining this bill, when allowed, stated that Pointer’s confession was not allowed or permitted in evidence, except as tending to show Pointer’s guilty participancy in the killing and not as evidence against appellant. In our opinion this evidence was not admissible. Judge Davidson is of the opinion it was admissible in the attitude of this case.
Appellant requested the court to give this charge: “Gentlemen, you. are further instructed that if you believe from the evidence beyond a reasonable doubt, that there was ever an understanding between Elie Pointer, Mrs. Gosnell and the defendant, Howard Millner, for the said Elie Pointer to kill the deceased Geo. Gosnell, but you have a reasonable doubt as to whether the said Elie Pointer killed the said Geo. Gosnell in pursuance of said common design, if anjr, or if you have a reasonable doubt as to whether the said Elie Pointer abandoned said common design, if any, and killed the said Geo. Gosnell from any other motive or reason, then in that event, you shall acquit the defendant.”
The State, in making out its case, introduced testimony tending to-show, and perhaps showing, that on Friday before Gosnell was killed late Saturday evening, when he left home, he had with him a check for $600 and that he tried to cash, and perhaps that day some time-did cash, said check; that appellant and Pointer both at the time knew this; that when he was on his return home Saturday evening he is shown to have had some money with him and was paying for the treats in his drinking and that Pointer saw and knew this at the time, and that when the body of Gosnell was found early Sunday morning all of his-pockets had been turned wrong side out, and his purse was found open with nothing in it, lying near his body.
Appellant contended, in effect among other things, that even if he had hired Pointer to kill deceased,' yet, that that was not the reason Pointer killed him, but he did so for the purpose of robbing him and getting his money. Therefore, under the circumstances of this case the said testimony of Lonnie Shelton was admissible as original evidence and the court should have given, in substance at least, the charge herein above quoted which he refused to give.
The record shows that the court permitted defendant’s witness Lonnie Shelton, or Smith, a negro woman, to testify that while she was in jail at the same time Pointer was, he told her that the said statement or confession hereinabove mentioned was all lies and not a bit of truth in it. Mr. Wharton in his work on Criminal Evidence, 10 Ed., vol. II, sec. 690, says: “Declarations made by a defendant in his own favor unless part of the res gestae, or of a confession offered by the prosecution, are not admissible for the defense. . . . Nor is the result changed by the statutes enabling a party to be called as a witness in his own behalf. That which he could prove by his sworn statements he is not permitted to prove by statements which are unsworn. In any view, therefore, the extrajudicial self-serving declarations of a party are inadmissible for him', with the exceptions hereafter stated, as evidence to prove his case.” The exceptions mentioned by Mr. Wharton are in no way applicable in this case. All the text-books lay the law down substantially as does Mr. Wharton. The Supreme Court of our State, when it had criminal jurisdiction, in Jones v. State, 13 Texas, 176, said:’
“The appellants asked the court to charge the jury, in effect, that if a confession of the accused was proven to have been made, at one time,
by one witness of the State, and proved to have been denied at another time, by another witness for the State, that one would destroy the other, and had, both, to be taken together. If this rule could be sustained, it would allow the accused to make evidence in his own defense. The rule is that a person’s declarations or admissions shall be evidence against himself, but not in his own favor. There is, however, a qualification to this rule, and that is, that the confessions are not to be cut up, and a part only received, and that part against the accused; but that all that the party said, at the time of making the alleged confession, to qualify or explain it is to be received. It does not extend to what he may have said at another time.” In 2 Enc. Digest of Texas Deports, Criminal, p. 565, the rule is thus stated: “It may be stated as a general rule, subject to a very few qualifications, that declarations, or admissions of a person charged with a criminal offense, are not admissible as evidence in his favor upon the prosecution for the offense, although they are admissible as evidence against him,” citing a very large number of cases,—perhaps, as many as a hundred, of our Supreme Court and ,of this court in support of the rule stated. Certainly, if Pointer had been on trial such statement by him, attempted to be proved by said witness would not have been admissible as original-testimony or otherwise in his behalf. Nor in this case could it be original evidence in appellant’s behalf. It was not self-serving, but clearly hearsay. So that, on another trial, if objection is made to this testimony, it should be excluded. However, in the attitude of this case Judge Davidson is of the opinion this evidence was admissible. It is necessary for us to say what we have said on this subject because the record shows that the court permitted Davis and Willimen to testify that about the same time the witness Lonnie Shelton or Smith said Pointer had told her what is stated above, that he told them that his said statement, or confession, was absolutely true; and appellant complains that the court in his charge limited the effect of the testimony of Davis and Willimen to impeachment purposes alone of his said witness Lonnie Smith. Certainly, if the said testimony of Lonnie Smith was admissible, that of Davis and Willimen was also admissible,, not only as impeaching Lonnie Smith, but as original evidence. Even if the court did limit the testimony of Davis and Willimen for impeachment purposes alone, this could not have been harmful to appellant,, but.was in his favor. Of course, if the testimony of said Lonnie Smith is excluded on another trial, that of Davis and Willimen also should be excluded. Then a charge on the subject at all could not and should not be given.
The evidence did not call for a charge that the witness Barber was an accessory. As the said statement or confession of Pointer was admitted solely for the purpose of showing or tending to show that he killed Gosnell and not as otherwise affecting appellant, and the court so charged at appellant’s instance, the said statement or confession could not therefore be made the basis of a charge that, as the State
had introduced it, it was bound by it in the other matters and must he taken as true, unless the falsity of such other matters were shown by the State. The only question that could be made the basis of such a charge was that of appellant’s self-defense and this was fully submitted to the jury by the court and found against appellant. The court’s charge on self-defense presented the matter to the jury in accordance with the evidence, and appellant’s complaint thereof that it limited Pointer’s defense so as to exclude his apparent danger, is without merit.
Appellant has several bills of exceptions complaining of the action of the court in permitting the audience to applaud during the trial and in not suppressing it, etc. The court refused one of these bills, because what was stated in it was not true. Others he qualified by stating that at one time there was only a clap of the hands once which the court at once suppressed and stated to the 300 or 400 people present if the same occurred again the court would order the court room cleared. And that there were slight ripples of laughter which the court suppressed as quickly as could be done, and that one of appellant’s counsel in his speech alluded to the Irish and especially to the district attorney an Irishman, as well as a witness, with the Blarney on his lips, in uncomplimentary terms which seemed to cause the complaint of the audience applauding, and that the court corrected and reprimanded the audience at once and threatened to have the court room cleared if it was repeated. Doubtless, on another trial such matters will be prevented by the court, so as to avoid any complaint.
By other bills appellant complains of various statements and arguments by the district attorney to the jury. It is unnecessary to take up separately these bills. One .shows he stated the appellant had been hob-nobbing with the dead man’s wife after the killing of George Gosnell. If on another trial there is no evidence to show this, this remark should not be made. Another, that he pointed his finger at appellant and called him a "scoundrel and villain and everything else.” While appellant’s conduct, shown by the evidence, may be severely commented on, personal epithets should not be used. Another, that he referred to the presence of Mrs. Gosnell as brazen effrontery since she has been here and that the defendant had not used her and had not shown where her children were. This was improper. Appellant could not have used her as a witness. Another, that he made this statement: "I wish I could tell you his remarks. (Pointer’s just after the killing.) It is a pity for the State that I can not tell you the words that were said at the time Pointer and Mrs. Gosnell met after the killing, and it is a good thing for the defendant that I can’t.” This was especially improper and harmful to appellant. These bills were allowed by the court without any explanation or qualification thereof.
Of course, prosecuting attorneys, as well as attorneys for defendant, should have the right in their arguments to the jury to comment on the various witnesses, the weight to be given to their testimony, the conduct of the defendant, shown by the evidence, and such other
pertinent matters as the evidence justifies. However, they should stay within the record and not make damaging statements to the jury wholly outside of the evidence. The court has repeatedly been called upon to reverse eases because of the argument and statements by prosecuting officers before the jury, calculated to materially injure an accused and entirely outside of the record. Some of the above statements by the district attorney, we think, were especially harmful. So much so that we would be under the necessity of reversing this cause because thereof.
We deem it unnecessary to further specially discuss any other question. From what we have said in this opinion the court can be guided in another trial. For the errors above pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.