
    WOOD v. STATE.
    No. 13347.
    Court of Criminal Appeals of Texas.
    May 14, 1930.
    W. H. Tolbert, of Fort Worth, for appellant. ,
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale; punishment being one year in the penitentiary.

Officers saw appellant take from the turtle-back of his car a package and deliver it to another party. Upon examination of appellant’s car, 69 ½ gallons of whisky in half-gallon fruit jars were found. Appellant did not testify and offered no evidence whatever. The district attorney in argument said, “It has not been contradicted that he (appellant) had it for sale,” meaning the whisky. This argument was objected to as being a reference to the failure of appellant to testify. In the bill bringing the matter forward for review, the trial judge not only certifies that appellant did not testify, but also certified as a fact “that there was no one by whom defendant could show he did not have same for sale except himself.” Under repeated decisions of this court we have been compelled to reverse because such argument was in the face of article 710, C. O. P. which expressly prohibits counsel from alluding to- or commenting on a defendant’s failure to testify. Scarbrough v. State, 98 Tex. Cr. R. 54, 263 S. W. 917; Moore v. State, 91 Tex. Cr. R. 100, 237 S. W. 938; Eiland v. State, 95 Tex. Cr. R. 525, 244 S. W. 528; Singleton v. State, 93 Tex. Cr. R. 109, 245 S. W. 922; Grimes v. State, 100 Tex. Cr. R. 34, 271 S. W. 898; Durham v. State, 106 Tex. Cr. R. 85, 290 S. W. 1092. If the trial judges would promptly grant new trials where the mandatory provisions of article 710, C. C. P., have beeij violated, it would more effectively prevent a recurrence of the error and obviate delays incident to appeals which must necessarily result in a reversal as long as said article remains unchanged by the lawmaking department of the government. Hoping some district attorney may be prevented from’ committing a similar error, we again patiently quote what was said on the subject in Gothard v. State, 99 Tex. Cr. R. 452, 270 S. W. 177, 178:

“Notwithstanding the many judgments this court has been called upon to reverse by reason of counsel ignoring the statute under consideration, the Legislature up to the present time has not seen proper to modify or-repeal it. We think it not out of place to suggest that in eases like this where a defendant has not testified himself nor offered any defensive testimony whatever it would be well for counsel representing the state to confine himself to a discussion of the evidence introduced-by the state, and not allude to defendant’s failure to produce evidence, unless it is apparent from the record that evidence other than his own was available which he neglected to bring before the jury.”

The judgment is reversed, and the cause remanded.  