¶1*309 ON MOTION FOR REHEARING.
¶2 This case was affirmed at a former day of this term of court.
¶3 i Appellant in his motion for rehearing renews his contention that the argument of the district attorney in the case presents reversible error. In the original opinion we held in effect that the argument should not have been made but disposed of the proposition on the theory that harm probably did not result to the appellant on account of the argument. A careful reconsideration of these complaints convinces us that we were in error. Upon more mature consideration of the case, we think that the effect of the argument of_ the district attorney was such as to have probably influenced the jury in returning a verdict of guilty against the appellant. The rule seems to be well settled in this state that it is improper for the state’s counsel to get before the jury in argument a fact which he would not be entitled to prove and the effect of which is damaging to the appellant. Branch’s P. C. P. 205. The same authority makes it clear that it is improper for state’s counsel in arguing the state’s case to the jury to state what he could have proved had not the defendant objected. We think the argument in this case transgressed these rules. Not once but many times during the course of the argument, the bills of exceptions show that the district attorney, at least by plain inference, if not by direct statement, advised the jury as to the matters that he would have proved by appellant’s wife had no objection been made to her testifying. This, we think, was improper and should not have been indulged in. It is true, as stated in the original opinion, that the appellant was given the lowest penalty, and the facts as disclosed by the state’s testimony might have justified a higher penalty, but a careful examination of the statement of facts discloses that the question of the actual guilt of the appellant was sharply contested and the state’s testimony is not so overwhelming as to justify our original holding that the argument probably did not enter into the jury’s deliberations in arriving at the conclusion that the appellant was guilty of the offense charged.
¶4 Because of the improper argument of the district attorney, the appellant’s motion for rehearing will be granted and the judgment reversed and the cause remanded.
¶5 Reversed and remanded.
¶6 The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.