
    GRIMES v. STATE.
    (No. 8737.)
    (Court of Criminal Appeals of Texas.
    April 22, 1925.)
    Criminal law <&wkey;72l (6) — State’s attorney’s argument held to constitute comment on failure 1 of accused to testify.
    State’s attorney’s argument, in prosecution for rape, that jury should believe prosecutrix’s testimony that defendant had intercourse' with her because defendant produced no witness to deny it, violates statute which forbids consideration by jury of accused’s failure to testify or comment on such failure by prosecuting attorney, where defendant, who did not testify, was the only person who could have controverted prosecutrix’s testimony..
    <@=For other cases see same topic ahd KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Montague County; Paul Donald, Judge.
    R. E. Grimes was convicted of rape, and he appeals.
    ‘Reversed and remanded.
    •Homer B. Latham, of Bowie, and J. S. Jameson, of Mpntague, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is rape; punishment fixed at confinement in the penitentiary for a period of 5 years.

The indictment was based upon that phase of the statute which charges an offense to have been committed upon a female under 18 years of age.

According to Viola Long, the subject of the alleged rape, she became 15 years of age on the 21st day of May, 1923. The first act of intercourse with the appellant occurred about the 1st of September, 1923. She claims that the act took place against her wishes. She also testified on cross-examination that the appellant caught her'in the act of intercourse with one Josh Caddie; that this was after she had had intercourse with the appellant. She made no report of the first act. The reason she did not complain was “because she did not want to do so; she would not have complained at all had she not become offended at the appellant because he disclosed the fact that he had caught her in the act of intercourse with Caddie.” The witness Caddie testified that he had no acts of intercourse with the prosecutrix, and was uncertain about the date of the beginning of his acquaintance with her.

Appellant did not testify. Counsel for the state, in the course of his argument, made remarks on, several occasions, of which complaint is made. One of the remarks was:

“That no witness had testified that what Viola Long had said about being raped was not denied by any one.”

In another remark, counsel said to the jury:

“That they should accept the testimony of the prosecuting witness, Viola Long, as being true that the defendant, R. E. Grimes, had the act of intercourse, because the defendant produced no witnesses that the same or any part of her .statements, in which she testified that she met the defendant down in a ditch some 200 or 300 yards off of her roád, and that she there had-an act of intercourse with said de-. fendabt, and that the jury should believe the same because it stood uncontradicted and un-controverted, and that her testimony was bound to be true.”

Counsel further remarked to the jury:

“That they were bound to accept the statements of the prosecuting witness, Viola Long, as to her having been raped by the defendant, as being true, because no witness had been produced by the defendant testifying that the same was not true — that none of the defendant’s witnesses - had contradicted .the same in any way; therefore it must be true.”

The evidence is conclusive that there was no witness who could have controverted the direct statements of the prosecutrix except the appellant. The defensive evidence introduced by him was his effort, by cross-examination, to discredit the prosecutrix. In the cross-examination she stated that she would not have reported the offense had she not gotten angry at the appellant because he had caught her in the act of intercourse with, Caddie; that she had had intercourse with him a number of times since the act with the appellant. The testimony of Caddie tended to show that his friendly relations with the prosecutrix began at about the same date as the act which she imputed to the appellant.

It is the view of state’s counsel before this court that the remarks quoted were "viola-tive of the statute which forbids the consideration of the failure of the accused to testify against him, or the comment on it by the attorney for the prosecution. In this view we concur. See Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 580, and cases there cited.

The judgment is reversed, and the cause remanded.  