
    SCARBROUGH v. STATE.
    (No. 8045.)
    (Court of Criminal Appeals of Texas.
    June 25, 1924.)
    1. Criminal law <&wkey;72l (5) — State’s indirect comment on defendant’s failure to testify held to require reversal.
    In prosecution for sale of intoxicating liquor, remark of state’s counsel “who denied that the sale was made,” where all persons present at the sale testified that defendant made it, and defendant, being the only one who could deny it, did not take the stand, held reversible error, as an indirect comment on defendant’s failure-to testify, violative of Code Cr. Proe. 1911, art. 790, and statutes governing presumption of innocence and reasonable doubt.
    2. Criminal'iaw &wkey;721(I), 1171 (5) — Statute prohibiting comment on accused’s failure to' testify is mandatory, and indirect violation reversible error.
    Code Or. Proc. 1911, art. 790, prohibiting comment by counsel on. accused’s failure to testify is mandatory, even indirect violation of which requires reversal.
    Appeal from District Court, Angelina County; L. D; Guinn, Judge.
    Lee Scarbrough was convicted of unlawful sale of intoxicating liquor, and he appeals.
    Reversed and remanded.
    Fairchild & Redditt, ’of Lufkin, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The unlawful sale of intoxicating liqiior is the offense; punishment fixed at confinement in the penitentiary fora period of one year.

The motion for a .continuance to secure the testimony of persons who would testify that the state’s witness Stuart had made out of court on numerous occasions statements contradictory of his testimony upon the trial does not show diligence to procure the witnesses.

By bill of exceptions No. 4 it is made to appear that state’s counsel in argument said to the jury: “Who denied that the sale was not made?” Prom the bill it affirmatively appears that the appellant did not testify and that the persons present at the time the alleged sale was supposed to have been made were' the witnesses Stuart, Hudnall, and Cane, all of whom were introduced by and testified upon behalf of the state, affirming that appellant made the sale. They all testifietl supporting the state’s case. The bill thus reveals that there were none present who could have denied the sale save the appellant. The remark apparently cannot be characterized other than as an indirect reference to the failure of the appellant to take the stand and deny the sale. He contented himself upon the trial with the cross-examination of the state’s witnesses and by the introduction of other witnesses by whose testimony he sought to raise a reasonable doubt as to the truth of the testimony given against him. The statute (article 700, C. C. P.), which declares that “the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause,” as well as the statutes on the presumption of innocence and reasonable doubt, vested in the appellant the right to haye the jury determine whether he was guilty or innocent without reference, either direct or indirect, to his failure to give evidence in his own behalf. The language used in the present case is in no sense different in its effect from that which has been held violative of the statute on many occasions. See Adams v. State, 87 Tex. Cr. R. 67, 219 S. W. 460. If the record was in a condition to show that there were persons present at the time the alleged sale was made who did not testify, the remarks of counsel would not necessarily imply a comment upon the failure of the appellant to give evidence. Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 580; Pickerell v. State, 82 Tex. Cr. R. 72, 198 S. W. 303; Ethridge v. State, 74 Tex. Cr. R. 635, 169 S. W. 1152. But on the present record, there was no one present at the trial who failed to take the witness stand who was present at the time the alleged sale took place save the appellant. Therefore, the jury, looking to the evidence, might have sought in vain for any person who might have made the denial save the appellant. It has often been said that the statute is mandatory and its obedience imperative. When counsel has transgressed it and the matter is brought before this court for review its duty is clear, and the responsibility of a reversal must rest upon the prosecution. Haley v. State, 84 Tex. Cr. R. 632, 209 S. W. 675, 3 A. L. R. 779.

The judgment is reversed and the cause remanded. 
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