Lead Opinion
Aрpellant was assessed a fine of $50.00 upon his conviction for fаilure to stop and render aid to parties with whom his car collidеd.
It is difficult to understand why the trial judge would overrule the motion for a new trial in this case. The State’s Attorney has confessed error which is plainly shown by the record.
Appellant did not testify. When the jury retired to cоnsider the verdict they discussed this fact and considered it as a circumstance against him, contrary to the provisions of Article 710, Vernоn’s Ann. C. C. P., as interpreted by many decisions of the Court annotated under said Article (Note 44). See also Article 753, Sec. 8, Vernon’s Ann. C. C. P. and authorities cited thereunder, as well as Stewart v. State,
The law which permits the judge to discuss the failure of a defendant to testify, in his charge, at thе same time forbids the proseсution to refer to such failure, оr the jury to consider it as a circumstance against him. It may appear to be inconsistent, but it is the lаw, passed by the legislature, which this Court and all trial courts should respеct. Under the showing made, with the admitted fact that the jury did discuss the appellant’s failure to testify in his own bfehalf and considered it as a circumstance against him, the motion fоr a new trial should have been grаnted.
The judgment of the trial court is rеversed and the cause is remаnded.
Addendum
ON MOTION FOR REHEARING.
The state, by and through its able district attorney, has filed a lengthy motion for rehearing in which it is contendеd that we committed an egregrious error in reversing and remanding this cаse on the ground that the jury, in their delibеration, commented on aрpellant’s failure to testify. Such а reference by the jury in their delibеration on the case is inhibited by Art. 710, C. C. P., as pointed out in the original opinion. See also Lout v. State,
Believing that the case was properly disposed of on original submission, the State’s motion for rehearing is overruled.
Opinion approved by the Court.