
    REVILLA v. STATE.
    (No. 9920.)
    (Court of Criminal Appeals of Texas.
    March 3, 1926.)
    1. Criminal law <&wkey;364(3).
    
      Testimony that accused, charged with unlawfully possessing whisky for sale, had a pistol when arrested is admissible as res gestae.
    2. Criminal law <&wkey;730(IO) — On trial for unlawfully possessing whisky for sale, comment on accused’s failure to testify was reversible error, though court charged jury not to consider it.
    In prosecution for unlawfully possessing whisky for sale, where defendant did not testify, comment by district attorney on failure of defendant to deny purpose for which he had tequila was reversible error, though court instructed the jury not to consider the comment.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Kle-berg County; A. W. Cunningham, Judge.
    Santiago Revilla was convicted of unlawfully possessing whisky for sale, and he appeals.
    Reversed and remanded.
    Perkins & Floyd, of Alice, for appellant.
    Sam D. Stinsdn, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The appellant was convicted in the district court of Kleberg county for unlawfully possessing whisky for ■ sale, and his punishment assessed at three years in the penitentiary.

Appellant complains of the action of the court in refusing to grant his first application for continuance, and because he contends the sheriff, while he was confined in jail, refused to permit him to have access to his counsel in order to prepare for trial. From the disposition we have made of this case it becomes unnecessary for us to discuss these questions, as they will not likely arise again upon another trial.

Appellant complains of the action of the court in permitting state’s witness Moseley to testify that, when he arrested the appellant, he had a pistol, and to the court’s refusal to withdraw said testimony from the consideration of the jury. There is no merit in this contention. What actually took place, just prior to and at the very time of the arrest, was part of the res gestee of the transaction, and was legitimate testimony to go before the jury.

The appellant strenuously insists that it was reversible error for the district attorney, while making his closing argument to the jury, in commenting upon the possession of the said tequila by the defendant and his having same for the purpose of sale, to state:

“Did that defendant breathe a single thought or word that the 28 bottles of tequila was in his possession for any other purpose?”

The record discloses that the appellant failed to testify in this case, and, when said remarks were made by the district attorney, appellant’s counsel objected to same as being a reference to the appellant’s failure to testify in his own behalf. The trial court instructed the jury not to 'consider said remarks, but appellant insists that the court was unable to withdraw the damage done thereby from the jury. We are of the opinion that the contention made by the appellant in this instance is well taken under the well-established doctrine laid down by this court on this point. Mr. Branch, in his Ann. P. O. § 375, states:

“It is error for state’s counsel in the argument to the jury to refer to or discuss the defendant’s failure to testify, and.the error is not cured by charging the jury to disregard Such allusion”— citing many authorities from Hunt v. State, 12 S. W. 737, 28 Tex. App. 149, 19 Am. St. Rep. 815, up to Cober v. State, 162 S. W. 869, 72 Tex. Cr. R. 374, and there have been many cases reannouncing the same doctrine since the last citation.

We think this was a direct allusion to the defendant’s failure to testify, and, from a careful examination of the entire record, together with the amount of punishment assessed, we are unable to reach the conclusion that the argument made by the district attorney was not prejudicial to the defendant in the trial of this case.

The appellant complains of the ‘action of the court in permitting the state to prove by the sheriff that, after he had arrested him, he stated that the whisky in question belonged to him (appellant), because it is contended that said alleged statement was made while under arrest, and no part of the res gestae. The bill, as presented, fails to set out sufficiently all the facts and circumstances as to the time elapsing between the arrest and said statement' and matters connected thei’ewith, in order that this court might be able to determine whether this testimony came within the doctrine of res gestse or not, and, as presented, shows no error in the action of the court in the admission of this testimony. The other complaints urged by the appellant to the trial of this case, as shown by other bills of exceptions, show no reversible error in the action of the court complained of.

Por the error above discussed, we are of the opinion that the judgement of the trial court should be reversed and remanded, and it is accordingly so ordered.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court. 
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