¶1There are but two questions presented in this case — one as to the sufficiency of the evidence, and the other as to the remarks of counsel for appellee in his closing argument.
¶2The court 'is of opinion that the evidence is sufficient to sustain the verdict, and, the instructions not being questioned, the judgment must be affirmed, unless the remarks of counsel call for a reversal.
¶3The record shows the argument and proceedings thereon as follows: “Who is this fellow, Ed. Jacobs ? He is nothing but a Jew down here at Knoble,' without any conscience, and are you going to take the property levied on, which Ferguson & Day have paid their good money for, and turn it to such a man as that? Nobody ever heard of a Jew having a conscience. They would take the last thing you had.” Whereupon the defendant objected to the argument of the said Taylor, and the court instructed him to desist from such argument, and instructed the jury that it did not make any difference who the defendant was, that he had the same rights in court that plaintiffs or any one else had, and told them to disregard the argument of plaintiffs’ attorney to the contrary. Whereupon the said Taylor proceeded with his argument, and again in a short time reverted to the statement that the said Jacobs was a Jew, to which defendant again objected, whereupon plaintiffs’ attorney desisted from such argument.” In the instructions to the jury the court specifically instructed as to this' argument. The record reads as follows: “The court also again instructed the jury to disregard the argument of attorney Taylor, which was objected to, and stated that it was entirely improper, and such argument should never be indulged in by any lawyer.”
¶4In the case of Kansas City Southern Railway Company v. Murphy, ante, p. 256, the two classes of cases where reversal is had for prejudicial remarks are discussed. It is clear that no reversal can be had for any failure on the part of the court to eradicate, if possible, the effect of the unworthy appeal to a supposed race prejudice. This rule, announced in Holder v. State, 58 Ark. 473, has been repeatedly followed: “An objection by the opposing counsel, promptly interposed, followed by a rebuke from the bench, and an admonition from the presiding judge to the jury to disregard prejudicial statements, is sufficient to cure the prejudice.” In Kansas City, F. S. & M. Company v. Sokal, 61 Ark. 130, this is added to the above stated rule: “But instances sometimes occur in which it is not sufficient,” instancing the Holder case and one from Indiana. This exception is emphasized in German-Am. Ins. Company v. Harper, 70 Ark. 305, and this statement from C. B. & Q. Ry. v. Kellogg, 76 N. W. Rep. 462, is taken as defining the exceptional class. “If the transgression be flagrant, if the offensive remark has stricken deep, and is of such a character that neither rebuke nor retraction can entirely destroy its sinister influence, a new trial should be promptly awarded, regardless of the want of objection or exception.” The last statement, that the new trial should be awarded, regardless of objection or exception, has not prevailed in this State, and is against the great weight of authority. See Thompson on Trials, § 962. The excerpt correctly defines that class of cases excepted from the general rule, and this court has followed it where the error has been properly preserved in the lower court.
¶5The circuit judge came up to the full measure required to remove the prejudice, and the question is whether the remarks belong to this excepted class, and worked prejudice not removable by the action of the trial court. In Redd v. State, 65 Ark. 475, the court said, referring to an objectionable argument appealing to ^prejudice: “It' was in bad form, to be sure; but jurors must be presumed to be men of intelligence, and scrupulous of the oaths which they take to try cases according to the law and evidence.” It -is not believed, in view of the circuit judge’s emphatic directions, and the good judgment and fair mindedness accorded to jurors, that this improper appeal worked any prejudice, under the facts disclosed, to appellant’s cause. If the case was a close issue of fact contested before the jury, the court would incline to a reversal herein for the improper argument.
¶6The judgment is affirmed.