
    SMITH v. STATE.
    (No. 10630.)
    Court of Criminal Appeals of Texas.
    April 13, 1927.
    Rehearing Denied May 11, 1927.
    1. Criminal law <&wkey;72l (3) — Statement of county attorney, “This defendant not testifying, * * * I do not mean to refer to this defendant not testifying,” held “comment on failure to testify” (Code Cr. Proc. 1925, art. 710).
    Statement by county attorney, “This defendant not testifying, this defendant, I do not mean to refer to this defendant not testifying,” held error in murder prosecution as “comment on failure of defendant to testify,” in violation of Code Cr. Proc. 1925, art. 710.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Comment.]
    2. Criminal law &wkey;>l 119(4) — Reference to defendant in. bill of exception, as having elected not to testify, made available county attor-torney’s statement regarding failure to testify.
    Bill of exception, .charging county attorney had commented on defendant’s failure to testify, sufficiently showed defendant had not, in fact, testified by referring to defendant as having elected not to testify.
    3. Criminal law <&wkey;>l 111 (5) — Where court approved bill of exception, having instructed jury not to consider remark on defendant’s failure to testify, affidavit relative thereto could not be considered.
    Affidavit with reference to comment of county attorney on defendant’s failure to testify could not be considered, where court approved bill of exception based thereon and instructed jury not to consider counsel’s remark.
    4. Homicide <&wkey;l9l — State could prove deceased made no effort to draw gun before defendant shot him.
    In prosecution for murder, admitting evidence offered by state to prove that deceased did not make any effort to draw gun. before defendant shot him held not error.
    Appeal from District Court, Robertson County; W. C. Davis, Judge. •
    Sam Smith was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Bush & Parten, of Eranklin, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Appellant was indicted for the murder of D. Jones. Conviction was for manslaughter, punishment being 5 years in the penitentiary

It is unnecessary to state the facts. The judgment must be reversed for a clear violation of the mandatory provision of article 710, C. C. P., which prohibits the allusion to or comment on accused’s failure to testify. It is suggested by the state’s attorney that the bill of exception bringing the point forward may not be full enough. The bill shows that the language used by the county attorney was:

“This defendant not testifying this defendant, I do not mean to refer to this defendant not testifying.”

It also shows that attorney for appellant immediately objected because the language was in violation of the statute and was a direct reference to the failure of appellant to testify, “he having elected to not testify in this cause.” The bill, in our opinion, does not fail to show that appellant did not testify. The very language objected to makes it apparent, and the further statement in quotation removes any possible doubt. It is unfortunate that the county attorney forgot himself. Realizing at once the mistake he had made he undertook to retrieve it, but if the means employed had been intentional the failure of accused to testify could have been no more forcefully called to the jury’s attention. As long as the statute remains as it is, this court must enforce it. We find in the record an affidavit with reference to this matter, but in view of the court’s approval of the hill of exception, together with the fact that he instructed the jury not to consider the remark of counsel, we cannot consider the affidavit.

Several other bills of exceptions are found in the record. Some of them are qualified. We think as presented none of them show error. One of them complains that the state was permitted to prove that “deceased did not make any effort to pull his gun out * * * just before the defendant shot him;” Of course, the state had a right to prove, if it could, that deceased made no effort to draw a gun. The objection was that the question called for a conclusion of the witness, but the bill is not sufficiently full to make this apparent. The matter is upon a vital issue in the case, and attention is directed to it in order that upon another trial examination of witnesses upon this point may not involve their conclusions, if it did do so in the present trial.

The judgment is reversed and the cause remanded.

On Motion for Rehearing.

MORROW, P. J.

In his motion for rehearing, state’s counsel cites many authorities to the point that the complaint of the reference in argument of the failure of the accused to testify-is not available in the absence of 'exceptions showing that the accused did not in fact testify. This rule has been asserted many times, and its existence is not open to question. In its-application, however, to the present record, we are not able to concur with the views of the state’s attorney. ■ On the face of the bill, as shown in the.original opinion, it is made to appear that counsel in argument did refer to the appellant’s failure to testify, and an exception was immediately addressed and a bill reserved in which the language used, referring to the accused, is, “He having elected not to testify in this cause.” In holding thé bill sufficient to comply with the rule heretofore announced, the opinion is expressed that no violence has been done to the precedents.

The motion is overruled. 
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