Full opinion text
DAVIDSON, P. J. Appellant was convicted for violating the local option law. The state’s evidence shows that the alleged purchaser, T. M. Pettigrew, stated that he got a pint of whisky from appellant, for which he paid him 75 cents. This was emphatically denied by appellant; he testifying that he never sold Pettigrew any whisky in his life. Several bills of exception were taken to the argument of the county attorney, and special instructions were requested by counsel for appellant to withdraw these remarks from the jury, with further instructions not to consider the same. These were refused by the court. The first bill of exception recites that the county attorney in his closing argument said: “If I was sworn as a witness in this case, I would not be afraid to tell the jury why Tim Pettigrew left here. Jim Harwell was surprised when he saw old Tim here as a witness. We got him back. We got him back. We kept on old Tim’s trail, until we got him back, and Jim knows why he went to Georgia, and spent several months doing nothing.” The second bill recites that in the closing argument the county attorney said: “Now, gentlemen of the jury, listen: Here is Jim Harwell. Why, Jim only weighs 240 pounds; 28 years old and 240 pounds; yet Jim says he was hashing at the American Restaurant. Now, you know that sounds to me like a lie. I can tell you what he was doing, for I know. Jim was selling whisky; that’s what Jim was doing. Two hundred and forty pound man hashing! Now, that’s a lie, and you know it.” The third bill recites that the county attorney used the following language: “Jim Harwell, a ‘hasher’ in the American Restaurant; that is the rottenest hole in the United States today, and he is the blackest bootlegger in Johnson county. I say so, because I know him.” Another bill recites that while the county attorney was addressing the jury he said: “We can’t enforce the law, if the jury will go out here and turn bootleggers like'defendant loose in such cases as this; and now, if you want bootleggers to run riot here, go out and turn this one loose.” Another bill recites that the county attorney said: “Gentlemen of the jury, I declare to you Jim Plarwell never did a decent act in his life, except by accident.” Sundry and divers exceptions were reserved to this language, and requests made of the court, and finally special instructions were requested, not only withdrawing the remarks, but charging the jury they should not consider these matters against appellant. The verdict of the jury gave appellant the maximum punishment, $100 fine and 60 days’ imprisonment in the county jail. As before stated, the evidence for the state shows that Tim Pettigrew bought of appellant, Jim Har-well, a pint of whisky, for which he paid him 75 cents. There is no evidence that appellant was a bootlegger. There is no evidence that appellant run the witness. Pettigrew out of the state, or sent him to Georgia. There is no evidence attacking the character of appellant. His character or reputation was not put into issue. Some of the statements that the county attorney made bore directly upon matters of fact which he states were in his knowledge, which were not offered in evidence, and which could not be put in evidence by the state. Some of the statements he made might have been introducible against appellant, but were not introduced. If, as a matter of fact, appellant had induced the witness Pettigrew to leave the state, this might have been used, perhaps, against him, and under some circumstances this character of testimony is admissible, as it shows or tends to show effort on the part of the party doing so to prevent evidence of such witness at the trial; but these matters were not before the jury, and some of them would not have been admissible: We are of opinion that the character of argument here indulged is clearly beyond any legitimate line. The charges asked by appellant were refused. The court declined to control the county attorney in his argument, and refused to withdraw the matters from the consideration of the jury. We cannot sustain this character of speech-making. The judgment is reversed, and the cause is remanded.