
    EADS v. STATE.
    (Court of Criminal Appeals of Texas.
    May 22. 1912.)
    Criminal Law (§ 721*) — Appeal—Improper Argument.
    Under the statute prohibiting any allusion to accused’s failure to testify, it is improper for the district attorney to state in argument that accused failed to testify in the examining trial, and that the record showed that he had never denied the killing until the present trial, when he admitted it.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.*]
    Appeal from District Court, Collingsworth County; S. P. Huff, Judge.
    Elbert Eads was convicted of second degree murder, and he appeals.
    Reversed and remanded.
    J. L. Lackey, of Wellington, and R. E. 'Taylor and H. A. Allen, both of Henrietta, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was given ten years in the penitentiary for murder in the second degree.

On the trial appellant testified in his own behalf. A hill of exceptions recites that the district attorney, making his closing argument to the jury, said: “Gentlemen of the jury, the record in this case shows that there has been an examining trial, and the defendant in the examining trial failed to go on the stand and testify, and so far as this record shows he has never denied killing A. J. Hopkins until he took the stand and testified in his own behalf this morning, at which time he admitted that he killed the deceased.” At the examining trial appellant did not take the witness stand and testify in his own behalf. The statute prohibits an allusion to the failure of the defendant to testify. It has been held, construing this statute, where a party failed to take the witness stand and testify in his own behalf at a trial previous to the one at which the conviction occurs, that it was error on the part of the prosecuting officer to allude to that fact. Several eases have been reversed for this very reason. See Richardson v. State, 33 Tex. Cr. R. 518, 27 S. W. 130, in which it was held that the failure of an accused person to testify in his own behalf shall not be alluded to or commented on by counsel applies to former as well as to pending trial. This case has been followed in Wilson v. State, 54 Tex. Cr. R. 506, 113 S. W. 529; Dorrs v. State, 40 S. W. 313; Gaines v. State, 53 S. W. 625; Bradburn v. State, 43 Tex. Cr. R. 309, 65 S. W. 519; Hare v. State, 56 Tex. Cr. R. 8, 118 S. W. 544, 133 Am. St. Rep. 950.

The judgment is reversed, and the cause is remanded.  