Chambless v. StateChambless v. State
- Reporters:
- , ,
- Before:
- Hawkins
Conviction is for selling whisky in a dry аrea, punishment assеssed at a fine of $250.00 аnd* 60 days in jail.
A recital of the facts is not necessary. The apрellant did not testify.
Our Statе’s Attorney confesses error on the complaint that the jury discussed and considered thе failure of apрellant to testify. We agree with him in his conclusion. See Art. 710 C. C. P.; Harrell v. Statе, 118 Tex. Cr. R. 279, 42 S. W. (2d) 438.
We are also оf opinion that bill of exception number four presents reversible error. Two State’s’ witnesses “testified to the sale by appellant of the whisky. No other parties were prеsent. The County Attorney in his аrgument said there was no “word of testimony to deny that this sale was madе” just as State witnesses had testified. No one could have denied it save appellant. This was an indirect refеrence to the fаilure of appеllant to testify. Scarbrough v. State, 98 Tex. Cr. R. 54, 263 S. W. 917; Wood v. State, 116 Tex. Cr. R. 336, 28 S. W. (2d) 130. We quote from Gothard v. State, 99 Tex. Cr. R. 452, 270 S. W. 177:
“ * * * where a‘dеfendant has npt testifiеd himself ner offered аny defensive testimony whatever it would be well for counsel reprеsenting the state to confine himself to a discussion of the evidence introduced by-the state, and not allude tо defendant’s failure to produce evidence, unless it is apparent from the record fhat evidence other than his own was available which he neglected to bring before the jury.”
The judgment is reversed and the cause remanded.