The opinion
ON appellant’s motion for rehearing.
BEAUCHAMP, Judge.
A very insistent motion has been filed for a rehearing in this cause. We are unable to agree, however, with its logic and do not feel called upon to discuss it in its entirety.
One of the several complaints in the motion, and the argument presented in its behalf, is directed to Bill of Exceptions No. 4. While one of the attorneys was arguing the defense he made the statement, as disclosed by the bill, that the state had not presented Craft as a witness and that the defendant was not permitted to do so under the law. The first part of this statement was apparent to the jury, but the second part brought before them a matter not in evidence. We have examined it carefully and, as stated by the qualification of this bill, it had not been shown in evidence that Craft was charged with any offense. The evidence does show grounds for such charge, but so far as we can tell from the record he had not been indicted nor had a charge been filed against him. The argument of the defense brought this new fact before the jury.
The attorney for a defendant has much greater liberty in his argument than does the attorney for the state. If the state *245 gets out of the record he may at once commit reversible error. An objection is generally filed to that kind of argument and the matter brought up to this court as a ground for reversal. On the other hand, the state stands helpless if the court permits an improper argument by the defense attorney. The only right that the state has, in such cases, is to follow the defense attorney out of the record and answer the argument. He cannot protect the state’s interest on appeal as the defendant may. When he follows the defense attorney out of the record the prosecutor can only go into such matter as is invited. The bill shows what took place in this case, independent of the court’s qualification. Our original opinion referred to the qualification but that was unnecessary. We could have said that the bill itself showed justification for the remarks which the district attorney made in reply to the defense. It is very clear that the state’s attorney had the right to offer the defense the evidence which he complained of not having. The court had the power to reopen the evidence and permit its introduction. We see no reason why the state should not have made the offer. If the defendant did not want it he should not have complained about it.
It then appears, without further discussion, that the district attorney had the right in his closing argument to make the statement complained of in Bill of Exceptions No. 5 as in reply to that of defense attorney.
Considerable stress is laid, in oral argument, on the failure of the court to grant a new trial on the grounds set out in Bill of Exception No. 19 Appellant had denied any connection with the murder and said that he had never known Craft before he came to Waco. As impeaching evidence the state sought to elicit from him an admission that this statement was incorrect and asked the question: “Isn’t it a fact when you met Craft you reminded him that you had met him in a jail at Greenville?”
The question might be unfair as an insinuation but we find nothing in the record to support a claim of unfairness. That the state had information on the subject is not challenged. This bill falls under its own weight. As we understand defendant’s evidence his denial that he had ever known Craft before coming to Waco was to bolster his own statement that he had nothing to do with the murder and robbery. The statement seems to be of ■importance to him and it became material that the state have the privilege of rebutting it.
*246 We have in this case, as always, reviewed the record with care and caution in order that nothing may be overlooked which is material to the claims of one accused of crime — whether it be a matter that deprives him of his liberty or his life. We find no issue that was not properly placed before the jury. The facts, if believed by the jury, sustain their verdict. The careful trial court performed his duty in the matter in a most commendable way. If mistakes were made the jury made them and neither the trial court nor this court has any right or power under the law to set aside their verdict under the facts of this case.
The motion for rehearing is overruled.