
    SKIRLOCK v. STATE.
    (No. 9043.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.)
    1. Criminal law <§=>722(2) — Argument, commenting on silence of accused on arrest, prejudicial.
    In prosecution for burglary, argument of district attorney, that silence of accused when arrested indicated guilt, held prejudicial, accused having unqualified right to remain silent and not have it used against him.
    2. Criminal law <&wkey;l 171 (3)— Argument, based, on unsworn testimony of district attorney, error.
    Unsworn statements of district attorney on argument; which have no support in evidence, will require reversal where prejudicial. , <
    Commissioners’ Decision.
    Appeal from District Court, Jopes County;. Bruce W. Bryant, Judge.
    O. A. Skirlock was convicted of burglary, and he appeals.
    Reversed and remanded.
    Lon A. Brooks, of Anson, for appellant..
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for-the State.
   BERRY, J.

Appellant was convicted in the-district court of Jones county for the offense-of burglary, and his punishment assessed at confinement in the penitentiary for a term of three years.

This court is forced to the necessity of reversing this ease on a- matter that ought never to occur during the progress of any trial. Proper exception was reserved to the following argument made by the district attorney to the jury:

“Gentlemen of the jury, if you had been arrested, charged with burglarizing the home of J. B. Jones, as was the defendant, wouldn’t you-have explained to the officers that you had nothing to do with it, and not sit silent as did! the defendant when arrested?”

This was clearly error, Ripley v. State, 58 Tex. Cr. R. 489, 126 S. W. 586, and the many cases there cited. Thompson v. State, 88 Tex. Cr. R. 29, 224 S. W. 892.

Under our law the defendant, when arrested, has the unqualified right to choose either of two courses, he may talk under the penalty of having what he says under some conditions used against him, but in no event can it be used for him; on the other hand, he may stand mute with the full assurance that his silence cannot be used in evidence against him. According to the argument objected to, appellant chose to remain silent, and having made this choice, it was manifestly wrong for counsel to use this silence as a circumstance of guilt.

Another vice in the argument is that it had no support in the evidence, and under our law could have none. No witness testified to appellant’s silence save the district attorney., and he was not competent to testify because he was unsworn. It is well settled that unsworn statements of state’s counsel on a material fact that are harmful to the defendant will require a reversal. Haggard v. State (Tex. Cr. App.) 269 S. W. 438, and the authorities there cited.

Our state’s attorney confesses error in this matter in both of the particulars above mentioned, and we hold that he is correct in regard thereto. Appellant seriously contends that the facts are insufficient to sustain the verdict, and the court should have instructed an acquittal. In view of another trial, we pretermit a discussion of the facts further than to say that, in our opinion, the court did not err in refusing to instruct an acquittal.

For the error above discussed, the judgment of the trial court is reversed, and the cause is remanded.

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.  