
    2156.
    Carter v. The State.
   Powell, J.

Where the defendant has not made a statement in his own behalf, it is not proper for the court to give in charge section 1010 of the Penal Code. Unless the reference to the defendant’s right to make a statement occurs in such connection as to leave the jury to infer that his failure to make one is to he counted against him, the error stands upon a like footing to that which arises ordinarily when a court gives in charge some principle of law, abstractly correct but not pertinent to the facts in the ease. Whether such an error is reversible or not depends almost entirely upon the facts and circumstances of each particular ease. In. the present instance the proof of the defendant’s guilt is very satisfactory; no other errors are complained of; it is not likely that any material prejudice was done the defendant by the court’s inadvertence; therefore the error is deemed’ harmless.

Indictment for burglary; from Terrell superior court — Judge Worrill. August 30, 1909.

Submitted October 25,

Decided November 9, 1909.

H. A. Wilkinson, for plaintiff in error.

J. A. Laing, solicitor-general, Reuben R. Arnold, contra.

Judgment affirmed.  