The law is stated in explicit terms, and this Court has repeatedly stated that these statutes are mandatory. See, Grable v. State, 60 Okla. Cr. 339, 44 P.2d 152; Rabb v. State, 62 Okla. Cr. 361, 71 P.2d 773; Graham v. State, 73 Okla. Cr. 337, 121 P.2d 308; Cupp v. State, 76 Okla. Cr. 342 136 P.2d 700; Lowrey v. State, 87 Okla. Cr. 313, 197 P.2d 637; Ladd v State, 89 Okla. Cr. 294, 207 P.2d 350; Green v. State, Okla. Cr. 281 P.2d 200; Keahbone v. State, Okla. Cr. 318 P.2d 894; Ford v. State Okla. Cr. 330 P.2d 214; and Fields v. State, Okla. Cr. 364 P.2d 723. All of these cases are discussed briefly in the well written brief of defense counsel.
(3) Where the conduct of counsel for defendant is improper, the trial court should excuse the jury before administering a rebuke or threatening to fine or imprison him for contempt. Garrett v. State, 74 Okla. Cr. 78, 123 P.2d 283; Cupp v. State, 76 Okla. Cr. 342, 136 P.2d 700; 23 C.J.S. 342. (4) It is prejudicial error for counsel for the state in a criminal prosecution to express or imply in his argument to the jury that he has knowledge of facts, aside from the evidence, which are detrimental to defendant and indicate his guilt. State v. Lenzner, 338 Mo. 903, 92 S.W.2d 895; State v. Pierson, 331 Mo. 636, 56 S.W.2d 120; State v. Mathis, 323 Mo. 37, 18 S.W.2d 8; State v. Ferguson, 152 Mo. 92, 53 S.W. 427. (5) It is improper for counsel for the state to argue facts not in evidence, and in the absence of a proper reprimand, or an instruction to the jury to disregard such argument, it is reversible error.
In support of this contention, he cites Holcomb v. State, 95 Okla. Cr. 55, 239 P.2d 806; Harrell v. State, 85 Okla. Cr. 293, 187 P.2d 676; Lyons v. State, 94 Okla. Cr. 288, 234 P.2d 940; Ash v. State, 93 Okla. Cr. 125, 225 P.2d 816. The cases relied upon by counsel state the general rule of discretion to be employed by the trial judge in his comments to counsel. While it is a well-established rule that the court must excuse the jury before rebuking counsel or threatening to fine or imprison him for contempt (Berrie v. State, 55 Okla. Cr. 302, 29 P.2d 979; Garrett v. State, 74 Okla. Cr. 78, 123 P.2d 283; Cupp v. State, 76 Okla. Cr. 342, 136 P.2d 700), the instant cause reveals no such situation. The comments of the trial court cited as error by defendant are occurrences in which the Court apparently attempts either to clarify the testimony of certain witnesses or speaks to counsel in reply to a ruling on objections, and are, in our opinion, of an "advisory" nature only.
This court has from the beginning been committed to the rule that it is highly prejudicial for the trial judge to reprimand counsel for defendant in the presence of the jury. Garrett v. State, 74 Okla. Cr. 78, 123 P.2d 283; Smith v. State ex rel. Gallaher, 12 Okla. Cr. 513, 159 P. 941; Whittenburg v. State, 46 Okla. Cr. 380, 287 P. 1049; Cupp v. State, 76 Okla. Cr. 342, 136 P.2d 700; McSpadden v. State, 8 Okla. Cr. 489, 129 P. 72; Hargrove v. U.S., 8 Cir., 25 F.2d 258, 262. The proper thing to do is to excuse the jury and thereafter fine counsel, or if the facts justify, have counsel committed to jail.
It is well settled by many decisions of this court that when a defendant seeks a reversal of a judgment of conviction on account of error in the proceedings of the trial court the record must show the proceedings upon which the alleged error is based. Ables v. State, 35 Okla. Cr. 26, 247 P. 423; Baker v. State, 65 Okla. Cr. 136, 83 P.2d 586; Cupp v. State, 76 Okla. Cr. 342, 136 P.2d 700. In the absence of any record sustaining this assignment of error, the same may not be considered by this court.