
    BOLES v. STATE.
    (No. 10276.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1926.)
    1. Criminal law <®=o814(17) — Evidence in manslaughter case held to warrant refusal of instruction on circumstantial evidence.
    Testimony of eyewitness in manslaughter prosecution, that she saw defendant and others engaged in fight with deceased, helé to warrant refusal of instruction on circumstantial evidence.
    2. Criminal law <&wkey;72l(5) — Remarks of prosecutor in manslaughter case as to nondenial of state’s evidence held comment .on defendant’s failure to testify (Code Cr. Proc. 1925, art. 710).
    Remarks Of prosecuting attorney in manslaughter case, to the effect that testimony of state’s witnesses must be believed because not denied, helé prejudicial, under Code Cr. Proc. 1925, art. 710, as reference to defendant’s failure to testify, where defendant was only other person who could have testified.
    Commissioners’ Decision.
    Appeal from District Court, Rusk County; R. T. Brown, Judge.
    Elbert Boles was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Sanders & Sanders and Davis & Davis, all of Center, Geo. S. King, of Houston, an.d J. Y. Gray, of Tyler, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted in the district court of Rusk county for the offense of manslaughter, and his punishment assessed at two years in the penitentiary.

The appellant, Calvin Boles, Claude Boles, and L. D. Cammack were jointly indicted in Shelby county, Tex., for the murder of W. R. Cook, and, after severance, the appellant’s case was on change of venue transferred to Rusk county. It was the theory of the state that all of the above-named parties had conspired to take the life of the said Cook, and that they all met at Choice, a way station on the railroad, and there brought on á difficulty with Cook in which Calvin Boles shot and killed him, during which time the balance of said parties were present and participated in the fighting. The appellant failed to testify, but it was bis contention that he was present but knew nothing of any conspiracy to take the life of Cook and took no part whatever in said fight.

We find 19 bills of exception in the record. Appellant’s counsel insist that the court erred in refusing to charge the jury on circumstantial evidence. This contention is based mainly-on the cross-examination of deceased’s wife, who was the only eyewitness, outside of the parties indicted, at the scene of the homicide. She testified on examination in chief that her attention had been called to the fight, and she heard her husband call to her to bring him a gun, and in this connection we quote from her testimony:

“They were still fighting out there. I mean by that L. D. Cammaek, Calvin Boles, Claude Boles, and Elbert Boles, and Mr. Cook; they were fighting my husband. Elbert Boles, the defendant, was down there fighting too. * * * When I first stopped out there in front of the store all of the "men I have just named were fighting Mr. Cook. * * * I heard two shots. I got the gun and started out there where they were, and they called to me that I was too late, to put the gun up, and then I turned and put the gun up and then went out down there where they were. When I say they called to me to put the gun up, X was too late, I mean Calvin Boles, Claude Boles, Elbert Boles, and tí. D. Cammaek.”

On cross-examination, relative to this issue, the said witness testified as follows:

“ * * * When I saw the trouble out there, they seemed to be fighting my husband. I did not see Elbert Boles do anything to him. I did not see him strike him, or kick him, or shoot him. I could not distinguish whether Elbert Boles laid a hand on him or not. They were all right there together. They were all fighting my husband is the way it appeared to me.”

We think this testimony shows positively that the appellant was present and engaged in the fight, and that the trial court did not err in refusing the charge on circumstantial evidence.

There are many questions raised as to the sufficiency of the charge of the court on conspiracy, principals, and as to the appellant’s being present but not participating in the fight, but, after a careful examination of the entire charge, we have reached the conclu-. sion that, taken as a whole, it is not subject to the criticisms urged against it.

The most serious question brought to our attention is the objection urged to the argument of state’s counsel before the jury. Hon. W. M. Futch, attorney for the state, in discussing the testimony of deceased’s wife relative to what she saw at the scene of the homicide and in connection with the court’s charge thereon, stated:

“Elbert Boles is guilty of the murder of W. R. Cook, and these must be facts, for no living soul has denied them.”

The said attorney, in discussing the state’s evidence given by Neuvill and Hughes to the effect that the appellant had gone to them for the purpose of buying a pistol on the day preceding the homicide, and stated to one of them that his wife was afraid of negroes and to the other that he wanted to shoot owls, and that he had obtained a .38 caliber pistol from said Hughes, stated:

“This testimony is before you without explanation or denial, and the testimony further shows that W. R. Cook was killed with a .38 caliber pistol, and the bullets have been introduced in evidence before you. If that doesn’t show a conspiracy to take the life of W. R; Cook and preparation to carry it into execution, I want to know how you would go about proving a conspiracy.”

Hon. E. H. Carter, attorney for the state, in the closing argument to the jpry, and in discussing the testimony of the said Hughes and Neuvill, stated:

“These witnesses have testified to these facts, which show beyond a reasonable doubt they were getting ready to kill W. R. Cook, and they have not denied the same.” '

Appellant’s counsel objected to these remarks and excepted to same, contending that they were alluding to the failure of the appellant to testify. The bills show that there were no other witnesses who saw or heard ■the matters in question, and could testify concerning samfe, except those produced by the state, and it follows that the defendant was the only other person who could deny or explain said matters. Therefore, after a careful analysis of these bills and the record, we are constraified to hold that the appellant’s contention is correct, and that the only inference to be drawn by the jury from said arguments was that same were references to appellant’s failure to testify. This was error, and will require a reversal of this case. Article 710, C. C. P.; Boone v. State, 90 Tex. Cr. R. 377, 235 S. W. 580; Singleton v. State, 93 Tex. Cr. R. 109, 245 S. W. 922; Heeter v. State, 103 Tex. Cr. R. 399, 281 S. W. 565; Bilberry v. State, 103 Tex. Cr. R. 572, 281 S. W. 1082.

For the errors above discussed, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

PER CURIAM. 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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