
    ROACH v. STATE.
    (No. 6349.)
    (Court of Criminal Appeals of Texas.
    June 15, 1921.)
    1. Criminal law <S»72|i/2(3) — Defendant’s reference to prosecutor’s unsuccessful effort to bring out defendant’s bad character held proper.
    In a prosecution for keeping and exhibiting a gaming table and bank for the purpose of gaming, where the prosecuting attorney on cross-examination of defendant had undertaken to develop the fact that defendant was living in a whorehouse, it was proper for defendant’s counsel in argument to jury to refer to the matter.
    2. Criminal law 1171 (I) — Prosecutor’s departure from legitimate argument ground for reversal.
    The Court of Criminal Appeals will seldom disturb the conviction because of alleged improper arguments 'of prosecuting attorneys, trivial in their nature; but where the prosecutor departs from the domain of legitimate argument, and undertakes to supply testimony in argument to the jury, the judgment will be reversed.
    
      3. Criminal law «teri 171 (6) — Improper argument of prosecuting attorney held ground for reversal.
    In a prosecution for keeping and exhibiting a gaming table and bank for the purpose of gaming, in which the prosecuting attorney had unsuccessfully tried during examination of defendant to elicit the fact that he was living in a whorehouse, and in which the defendant’s counsel in argument to the jury referred to such unsuccessful attempt, the action of the prosecuting attorney during argument to jury, stating as a fact that defendant did live in such a house and that he had no regular employment, and in referring to him as a “whorehouse gambler,” held ground for reversal; it being impossible in such case to know the extent to which such improper argument influenced the jury.
    Appeal from District Court, Bell County; M. B. Blair, Judge.
    Charlie Roach was convicted for keeping and exhibiting a gaming table and bank for gaming purposes, and he appeals.
    Reversed and remanded.
    Holley & Ferguson, Evetts & White, Win-bourn Pearce, and A. L. Curtis, all of Temple, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction was for keeping and exhibiting a gaming table and bank for the purpose of gaming. Punishment was assessed at three years’ confinement in the penitentiary.

In the disposition which it will be necessary to make of this case, it is not necessary to set out the evidence. It was sufficient to support the conviction.'

It is made, to appear by a bill of exceptions that, while appellant was testifying in his own behalf, he was asked by the prosecuting attorney in regard to his employment, and, further, if he was not living in a whorehouse, to which the appellant replied that he was not. During the argument of his counsel, reference was made to the questions and answers as shown by the bill of exceptions, and the attorney then stated to the jury that:

“The conduct of the district attorney in making such inquiry showed the limit to which the state would go in this case to secure a conviction, and that the matters inquired about had nothing whatever to do with the guilt or innocence of the defendant in this case.”

In his closing argument the district attorney reverted to this same subject, and said:

“These matters have a great deal to do with this case; that the fact that defendant lived in a whorehouse, and that he had no regular employment, showed that he is the kind of a man who would be guilty of keeping and exhibiting a gaming table. You ought to convict this defendant, who lives at a whorehouse, who never did an honest day’s work in his life. Oonvict this whorehouse gambler.”

The bill of exceptions shows that appellant’s counsel objected to this argument on the part of the district attorney, and requested the court to instruct the jury to disregard the same, which the court declined to do.

The bill as presented shows that the district attorney undertook, by cross-examination of appellant himself, to show that he was living at a whorehouse. Appellant denied this. There is no testimony in the record from any other source which would indicate that it was true. The character of the appellant was not put in issue in any way so far as the record discloses; in fact, the bill of exceptions shows as a fact that this was not done. The district attorney having undertaken to develop this fact on cross-examination of appellant, and having failed, it was legitimate argument for appellant’s counsel to refer to the matter; and in reply thereto the district attorney undertakes to supply the failure in proof by stating in argument as a fact that the defendant did live at a whorehouse, and called upon the jury to convict this “whorehouse gambler.”

Many complaints are made to this court of arguments of prosecuting officers, which complaints are trivial in their nature, and are frequently as to deductions and conclusions drawn by the attorneys. It is seldom that this court disturbs a conviction under those circumstances. But where the prosecuting officers depart from the domain of legitimate argument, and undertake to supply testimony in their discourse to the jury, it is going further than this court can sanction. It is regrettable that the prosecuting officers so frequently, in their zeal to secure a present conviction, overlook the fact that it is a barren victory, if they inject into the case matters which are extraneous to the record, and compel this court to reverse the case.

The punishment of appellant was fixed at three years’ confinement in the penitentiary. It is impossible for this court to know to what extent the improper argument of the district attorney influenced that result, and under the showing made by the bill of exceptions this court will not speculate upon that proposition. Wilson v. State, 81 Tex. Cr. R. 216, 194 S. W. 828; Marshall v. State, 76 Tex. Cr. R. 386, 175 S. W. 154; Turner v. State, 39 Tex. Cr. R. 329, 45 S. W. 1020; Thompson v. State, 67 Tex. Cr. R. 660, 150 S. W. 181; Paris v. State, 62 Tex. Cr. R. 354, 137 S. W. 698; Patterson v. State, 60 S. W. 560; Stone v. State, 22 Tex. App. 185, 2 S. W. 587; Stevens v. State, 70 Tex. Cr. R. 565, 159 S. W. 505.

The other bills of exceptions will not be discussed as the matters presented therein will not likely occur upon another trial.

The judgment is reversed, and the cause remanded. 
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