— Thе offense is arson; the punishment confinement in the penitentiary for two years.
It was the state’s theory that appеllant burned the Mt. Mariah Church for colored people. Testimony of the state tended to show that appellant went to the church alone in an automobile at night and sеt fire thereto. Automobile and human tracks were found in the viсinity of the church. A paif of shoes taken from appellant’s residence by the sheriff shortly after the fire fitted the human tracks perfectly. '
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On the morning after the burning the sheriff went to aрpellant’s home for the purpose of arresting him. Apрellant was absent. The sheriff asked appellant’s wife fоr permission to get a drink of water. She invited him to enter the hоuse. While passing through the hall he noticed a pair of shоes. He picked the shoes up and took them to the scene of the burned building where they were applied to thе human tracks with the result hereinbefore stated. His testimony touching the finding of the shoes and their use in connecting appellant with the offense for which he was being tried was objectеd to on the ground that at the time he procured said shoes he had neither a search warrant, warrant of arrest, nor a legal right to arrest, and that under the provisions of Articles 4a and 727a C. C. P. the search was illegal. We are unable tо agree with this contention. The sheriff was not a trespassеr in appellant’s residence. His entry therein was legal. Hе had asked for and obtained the permission of appellant’s wife to enter the house for the purpose of getting a drink of water. At the time he saw and obtained the shoes he was violating no law. Hence the statutes above referred to had no application. Hall v. State, 101 Tex. Cr. Rеp. 365: Jones v. State,
Appellant did not testify. According to thе state’s testimony, appellant was alone at the time he burned the church. In closing his argument, the district attorney used lаnguage as follows:
“The state has proved the tracks thаt were made were made by defendant’s car and defеndant’s shoes and nobody denies it.”
In the condition in which we find the rеcord appellant was the only person who could have made a denial of the fact that the tracks nеar the scene of the burned building were made by his shoes and by his сar. Appellant timely objected to the statement of the district attorney as constituting a comment on the failurе of appellant to testify. We think the argüment of necеssity referred to the failure of appellant to take the stand as a witness and that the jury could have drawn no other inference therefrom. The mandatory provisions of Artiсle 710 C. C. P. having been violated by the attorney representing thе state, it becomes our duty to order a reversal. Singleton v. State, 93 Tex. Cr. Rep. 109.
The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commissiоn of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.