The opinion
On Rehearing.
The Attorney General has applied for a rehearing submitting in support of his application an elaborate brief consisting of 11 pages, containing copious quotations from authorities and an elaborate argument, in which the court is earnestly urged to take back its deliverance, grant a rehearing, and affirm the judgment in this case. This diligence on the part of the state’s representative is commendable, and requires notice, but we deem it not improper to say that the brief filed on submission of the case consisted of ten lines, without citation of a single authority pertinent to the questions presented by tlie application for rehearing. We have again examined the questions on which the court based the. judgment of reversal, and find that the authorities cited in the brief supporting the application for rehearing are not applicable.
The cases cited as opposing the utterances on the fir^t question, considered as reversible error, were not dealing with the question of confining the prosecution to the issues as defined by a positive election on the part of the state.
As to the second question presented, the authorities are. likewise inapplicable. The argument here in question was not only objectionable in itself, but evoked from the spectators in- the courtroom their approval and laughter, which was allowed to go unre *181 bilked and unreproved by tbe court, calculated to create “a general atmosphere of the casé” highly prejudicial to the interests of the defendant, and calculated to influence the jury in shaping their verdict. These facts bring the case within the exception to the general rule thus stated in some of the authorities:
“The rule [requiring an appeal to the court for corrective action] is subject to the exception in the reported cases that if the improper remarks are of such character that neither rebuke nor retraction can destroy their sinister influence, a new trial should be promptly granted, regardless of the want of proper objection and exception.” B. R. L. & P. Co. v. Gonzalez; 183 Ala. 287 , 61 South. 86 , Ann. Cas. 1916A, 543; Moulton v. State, 74 South. 454 ; 2 B. R., L. & P. Co. v. Drennen, 175 Ala. 338 , 57 South. 876 , Ann. Cas. 1914C, 1037.
We adhere to the views expressed in the original opinion and the application is therefore overruled.
Application overruled.
199 Ala. 411 .