Whitfield, C. I.,
delivered the opinion of the court.
One of the grounds of the demurrer to this indictment, framed on § 1004 of the code of 1892, is that the female is not alleged to have been unmarried. Neither under § 1298 nor under § 1004 is it necessary that the indictment should allege that the woman was unmarried; that is matter of defense. It seems to have been overlooked by counsel that ive decided in Norton v. State, 72 Miss., 137, 16 South., 267, 18 South., 916, 48 Am. St. Hep., 538, that this averment was not necessary in an indictment framed on said § 1298. We there said: “It is not necessary to allege that the man was unmarried, though, if married, and the woman knew it, no conviction could be had. Nor, it seems, is it essential that the indictment should aver that *492the woman was a single woman, this, it is said, being matter of defense. Bish. Dir. & Dorms, sec. 950, note 3. But, as held in Ferguson v. State., 71 Miss., 805, 15 South., 66, 42 Am. St. Rep., 492, it is better practice to make the averment.” Mr. Bishop says on this subject (Bish. Dir. & Dorms, sec. 950, note 3) : “This expansion beyond the statutory words is simply less questionable than the former one. Evidently, if the woman is married, the offense becomes impossible; because the man’s promise of a marriage, which she knows cannot take place, will be no inducement to the yielding up of her person. Stat. Crimes, sec. 638. Still as the’indictment is required only to set out a prima facie case (Grim. Pro., 1, sec. 326), and the fact that ¡the woman’s marriage would be mere matter, of defense, it is difficult to discern any necessity for thus negativing, in allegation, such defense.” It will be observed that he puts the word '“unmarried” in the form given in the text in brackets, showing it to be good practice to aver it, but also showing it not to be an essential averment. The court did not err, therefore, in overruling the demurrer to the indictment on this ground. The other grounds of demurrer are not worthy of serious consideration.
The objection most seriously pressed is that the court below allowed the district attorney, in his argument, to make use of certain language in'his opening argument and certain other language in his 'final argument. The language' objected to in his opening argument is as follows: “Gentlemen • of the jury, knowing the character of the people connected with this case as well as I do, and having heard all the evidence detailed in this horrible tragedy,' I am' the worst surprised 'man' in the world that the defendant is alive.” In his closing argument the district attorney said, while holding a letter, which was introduced in evidence, in his hands, and commenting on it, the letter having been introduced as written by the defendant to the woman in the case, Ludie Jackson: “Nobody on earth denies that he wrote it.' In his closing argument the district attorney *493also said: “No living soul bas denied that defendant seduced this little girl.” It is too plain for argument that this language addressed to the jury in the closing argument of the district attorney referred directly to the defendant, and was a comment on his failure to testify; and under the authority of Reddick v. State, 72 Miss., 1008" court="Miss." date_filed="1895-03-15" href="https://app.midpage.ai/document/reddick-v-state-7987754?utm_source=webapp" opinion_id="7987754">72 Miss., 1008, 16 South., 490; Sanders v. State, 73 Miss., 444" court="Miss." date_filed="1895-10-15" href="https://app.midpage.ai/document/sanders-v-state-7987833?utm_source=webapp" opinion_id="7987833">73 Miss., 444, 18 South., 541, and Yarborough v. State, 70 Miss., 593" court="Miss." date_filed="1893-03-15" href="https://app.midpage.ai/document/yarbrough-v-state-7987349?utm_source=webapp" opinion_id="7987349">70 Miss., 593, 12 South., 551, the error is fatal error. This is a much clearer case for reversal than the Reddick or Sanders case was; for in Reddick’s case, after the district attorney had said, referring to the defendant, “lie has not denied it,” he changed it to “It has not been denied,” and the court immediately instructed the jury -to disregard the remark; and on a motion for a new trial in that ease the district attorney testified that.he did not intend to comment on the failure of the accused to testify, but only meant that the testimony as to the admission was. undisputed. Yet this court held, notwithstanding all these precautions, that, having used language that could reasonably be construed as a comment, his intention was immaterial. Niid in the'Sanders ease, although the court promptly rebuked counsel and instructed the jury to disregard the fact" alluded to, and although counsel himself asked that the remark be considered withdrawn, nevertheless it wras held that the error was not ’cured. Here, on the contrary, although the counsel for the defendant strenuously objected to the remarks quoted, the court overruled his objection; and the counsel for the defendant then again earnestly asked the court to exclude the remarks, but the court. ref used to do so. Hqw much.more clear, and fatal is the error here than in the ease.of Reddick and Sanders!
Reversed and remanded.