
    HOBBS v. STATE.
    (No. 10160.)
    (Court of Criminal Appeals of Texas.
    June 2, 1926.)
    1. Criminal law <&wkey;508(5) — Witness awaiting trial for aggravated assault is incompetent witness for defendant in trial for aggravated assault of same victim in same transaction (Code Cr. Proc. 1925, art. 711).
    Witness awaiting trial on charge of aggravated assault against same party, and growing out of same transaction for which defendant was on trial, is an incompetent witness for defendant, in view of Code Cr. Proc. 1925, art. 711.
    2. Criminal law &wkey;>721 (6) — Argument of county attorney that no evidence was introduced as to defendant’s innocence though he had means of showing it, and that witness stand was silent as to any reason for defendant being not guilty, held improper reference to defendant’s failure to testify (Code Cr. Proc. 1925, art. 710),
    In prosecution for aggravated assault in which defendant 'did not testify, argument of county attorney that defendant introduced no evidence to prove innocence though he had means of doing so, and that if defendant was not guilty some testimony from the stand should have been shown to that effect, held to refer to defendant’s failure to testify, prohibited by Code Cr. Proc. 1925, art. 710.
    other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from Hall County Court; A. C. Hoffman, Judge.
    D. C. Hobbs was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Fitzgerald & Grundy, of Memphis, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Dyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRÍ, J.

The offense is aggravated assault, and the punishment is a fine of $100 and eight months in jail. The case must be reversed because of the action of the county attorney in commenting on the failure of the defendant to testify in his own behalf.

The bills of exceptions affirmatively show that only the prosecuting witness, J. W.’ Sanders, J. D. Rogers, and the appellant were present at the time the assault was alleged to have been committed. The bills. further show that Rogers was at the time of this trial under bond awaiting trial on a charge of aggravated assault upon the said Sanders, growing out of the same transaction for which the defendant was on trial. Rogers was therefore an incompetent witness for the appellant, and the appellant had no right to use him as a witness in his behalf. Article 711, 1925 Revision C. C. P.; Robertson v. State, 63 Tex. Cr. R. 268, 140 S. W. 105.

The bills further show that the appellant did not testify in his own behalf in this case. With the record in this condition the county attorney in his opening argument used the following language :

“If he, defendant, was not guilty, I want to remind you that he never introduced a line of evidence to prove that he was not guilty, and certainly if he was not guilty he had the means of proving he was not guilty.”

Another bill shows that in the same argument and under the same conditions the county attorney said:

“That witness stand was as silent as a tomb as to any reason why this defendant was not guilty.”

Still another bill shows that the county attorney said:

“If that man (defendant) was not guilty I would like to have heard some testimony from that stand to show fbat be was not guilty.’’

We think that under all the authorities this was a reference to the appellant’s failure to testify. Williams v. State, 66 Tex. Cr. R. 254, 146 S. W. 168; Shaw v. State, 57 Tex. Cr. R. 474, 123 S. W. 691; Miller v. State, 45 Tex. Cr. R. 517, 78 S. W. 511; Flores v. State, 60 Tex. Cr. R. 25, 129 S. W. 1111; Dawson v. State (Tex. Cr. App.) 24 S. W. 414; Brazell v. State, 33 Tex. Cr. R. 334, 26 S. W. 723; Minter v. State, 68 Tex. Cr. R. 47, 150 S. W. 783; Vickers v. State, 69 Tex. Cr. R. 628, 154 S. W. 578.

Cases without number might be cited wherein it has been held that language similar to that used by the county attorney in the instant ease was an indirect reference to the defendant’s failure to testify. Por many other cases on this question, see page 209, Branch’s Ann. P. C. The argument was in direct conflict with the authorities above cited, and was prohibited by article 710, 1925 Revision C. C. P.

Because of said improper argument, the judgment is reversed and the cause 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.  