
    BERT CANTLEY v. STATE.
    No. A-5478.
    Opinion Filed May 8, 1926.
    Rehearing Denied May 29, 1926.
    (246 Pac. 883.)
    
      W. R. Chesnut, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant was convicted in the county court of Ottawa county on a charge of unlawfully transporting whisky, and sentenced to serve 30 days in the county jail and to pay a fine of $200.

The only assignment of error argued is that the evidence is insufficient to sustain the verdict. The evidence shows that on the 29th of June, 1924, the defendant and one Pearl Reeves were driving on the highway just out of the town of Picher. A deputy sheriff came up with them near the town, and the defendant, with a hammer, broke a half-gallon jug in front of the car he was driving, and the contents ran out. The deputy sheriff testified that it was whisky.

Pearl Reeves, testifying for her codefendant, stated that she and defendant were taking a ride; the jug was in the front of the car, but she did not know what it contained and whether or not defendant broke it. Defendant did not take the stand.

The evidence is brief, but there is sufficient to sustain the verdict. A defendant has the constitutional right to refrain from testifying, and no comment, of course, may be made on this fact in the trial in the lower court, but the members of this court know that a defendant is in a position to explain or refute testimony pointing to his guilt. It is rare, indeed, that he would have any reason for failing to testify in his own behalf, except that such testimony would disclose his guilt.

The case is affirmed.  