Thе material question in issue upon the trial of this case in the court below was the guilt or innocence of this defеndant as charged in the indictment upon which he had been arraigned and to which he had pleaded. Whether or not one Raymond, who was arrested at the still at the same time of this defendant, had been convicted for this оffense at a former term of the court, was a mattеr wholly immaterial, irrelevant, and inadmissible, and this defendant’s case should not have been burdened with that line of inquiry, and this thе court allowed over the timely objections and еxceptions of defendant. It was error so to do.
In his аrgument to the jury the solicitor stated: “Just these two men cаught-over there at a still, one of them convicted аlready.” This was improper argument. The defendant duly objеcted to the argument and excepted to the аction of the court in overruling the objection. But we are unable to give the defendant the benefit of this mattеr, as the exception as taken presents nothing fоr review. The prevailing rule is that a mere objection to words already spoken in argument does not reach the evil aimed at. In order to properly prеsent the matter for review the court must be appеaled -to to exclude the objectionable аrgument from the consideration of the jury, failing which there is nothing presented for review by an exception. Lambert v. State,
Objection, motion to exclude, and proper exceptions are shown by the record to the further remarks of the solicitor in his argument to the jury wherein he stated: “He had his friends here, but he did not put them on the stand.” This was also improper argument, and the court committed reversible error in these rulings. The constitutional right of every person accused of crime is that he shall not bе deprived of life, liberty, or property, except by due process of law; and due process of lаw means that he shall be tried according to the law аnd evidence in the case. It does not mean that a person accused of crime shall be tried by something not in the case, and comment in argument like the argument here complained of, the failure of defendant to put up witnesses, is improper and should not be indulged. Whаt has been said also applies to the further comment by the solicitor in argument, viz., “If his father-in-law and mother-in-law wеre going to swear that for him why didn’t he bring them here?” This criticism of showings that were made for absent, witnesses, and which were admitted by the state, was uncalled for, out of place, and improper, and should not have been permittеd. The court erred in .overruling defendant’s objection аnd motion to exclude.
Bor the errors indicated, the judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.