
    MINOR v. STATE.
    (No. 11041.)
    Court of Criminal Appeals of Texas.
    April 18, 1928.
    1. Criminal law @=3369(1) — Proof of extrane- . ous crimes should be excluded unless within recognized exception.
    Proof of extraneous crimes should be excluded unless same comes within one of recognized exceptions.
    2. Criminal law &wkey;>l 169(11) — In murder prosecution, evidence of killing in another state and of adulterous relations with witness held reversible error in connection with argument of prosecutor.
    In prosecution for murder, admission of evidence that defendant killed man in another state and had been guilty of adulterous relations with one of state's witnesses, which was commented on by state’s attorney in argument, thereby impressing jury with fact appellant was a bad man and criminal generally, held, reversible error; testimony complained of, considered in connection with argument, being irrelevant and immaterial, and obviously harmful to defendant.
    Commissioners’ Decision.
    Appeal from District Court, Hunt County; Grover Sellers, Judge.
    Joe Minor was convicted of murder, and he appeals.
    Reversed and remanded.
    Dial & Brim, of Sulphur Springs, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for tbe State.
   CHRISTIAN, J.

Tbe opinion banded down herein on February 15, 1928, is withdrawn and tbe following substituted therefor:

Appellant was convicted of tbe offense of murder, bis. punishment being assessed at confinement in tbe penitentiary for 99 years.

Tbe sufficiency of the evidence is questioned on the ground that tbe corpus delicti was not estaolisbed. Tbe circumstances corroborating appellant’s admission of guilt were meager. We are not able to say, however, that such circumstances, taken in connection with appellant’s admission, were insufficient to justify the jury in reaching tbe conclusion that tbe corpus delicti bad been established.

Bills of exception Nos. 5 and 6 complain of tbe action of tbe court in permitting tbe state to introduce before tbe jury evidence that appellant was guilty of extraneous crimes. Appellant’s reputation was not placed in issue. He did not testify in bis own behalf. Moreover, none of tbe exceptions under which evidence of extraneous crimes might properly be admitted were present. It is tbe rule that proof of extraneous crimes should be excluded unless same comes within one of tbe recognized exceptions. Enix v. State (Tex. Cr. App.) 299 S. W. 431. Tbe fact that appellant may have killed a man in Oklahoma was not relevant to any issue in the case. Tbe further fact that appellant had been guilty of having adulterous relations with one of the state’s witnesses was irreler vant and immaterial. That such matters when brought to tbe attention of tbe jury were obviously harmful and prejudicial to appellant must be conceded. Other bills of exception show that tbe county attorney alluded to these objectionable matters in argument, thereby further impressing the jury with1 tbe fact that appellant was a bad man, and a criminal generally. We think that, under tbe present record, the effort of tbe court to cure tbe error by withdrawing the matters complained of from tbe consideration of tbe jury was unavailing. We cannot say that the prejudicial matters complained of were not appropriated by tbe jury in determining tbe issue of guilt and assessing tbe penalty. The testimony complained of considered in connection with tbe argument of tbe county attorney being obviously harmful to appellant, we are of tbe opinion that error necessitating a reversal was committed. Enix v. State, supra; Edmondson v. State, 106 Tex. Cr. R. 321, 292 S. W. 231; Walker v. State, 103 Tex. Cr. R. 555, 281 S. W. 1070.

There are other complaints found in tbe record, but, as they are not likely to occur in tbe same form on another trial, we do not deem it necessary to discuss them.

For tbe error discussed, the judgment is reversed and tbe cause remanded.

PER CURIAM. Tbe foregoing opinion of tbe Commission of Appeals has been examined by tbe Judges of the Court of Criminal Appeals and approved by tbe court. 
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