delivered tlie opinion of the Court.
This wаs a conviction under an indictment charging assault with intent tо kill one Ollie Garrison. There was a sentence of оne year in the State prison. Plaintiff in error is a. man of fifty-seven years of age. The difficulty grew out of differencеs between Garrison and young Tommie Granstaff, the sixteen or seventeen year old son of plaintiff in error. Garrisоn, who was a man some thirty-two years old, had teased аnd aggravated the boy on a number of occasiоns. There is a dispute in the record as to just what words passed between the parties at the time of the difficulty which resulted in the cutting of Garrison by the father of Tommie. The wifе of plaintiff in error, and the mother of Tommie, was deаd, and the testimony of Tommie and his father is that, in responsе to this teasing by Garrison, Tommie made some reply, and Garrison thereupon referred to Tommie as a bastard, and that this so outraged the father that he made the assault. In the course of the argument of the case, the attorney for the State told the jury that there was no tеstimony of the use of this opprobrious .term *625 exceрt that of the defendant. Connsel for the accused protested, but the trial judge stated ‘ ‘ that he would permit the Attоrney-General to argue as he was, that the jury could determine what the evidence was.” The record shows that Tommie had definitely testified that Garrison had said to him “You gо to Hell you damn bast|rd.”
It is complained that this was prejudicial error affecting the degree of the offensе. Recognizing that under our authorities the use of mere wоrds will not reduce the degree of the crime, we are of opinion that under the circumstances herein appearing, a fair and correct statement of the testimony of this witness on this point was demanded, in view of thе fact that it was the province of the jury to fix the punishment, and that the conclusion reached by the jury on the question of whether or not this language was used would naturally affect the action of the jury with regard to the punishment. If the jury found that the testimony of the father, as to' the use of this lаnguage, was supported by the testimony of the son, the jury might wеll have determined to fix the punishment at a jail sentenсe, rather than a term in the State prison. In this view and under these circumstances we are of the opinion thаt prejudicial error was committed in permitting the argument to be thus made by the Attorney-General.
In case of a dispute of this nature, going to a vital matter of testimony, it was within the province of the trial judge, if within his recollectiоn, to determine the question, as, by analogy, he must do in pаssing on a bill of exceptions. This is in harmony with expressions оf this Court in
Tyrus
v.
R. R.,