
    HAYS v. STATE.
    (No. 9321.)
    (Court of Criminal Appeals of Texas.
    June 24, 1925.)
    Criminal law ¡§^721(3) — Reference to accused’s failure to testify in examining trial held erroneous.
    In view of Vernon’s Ann. Code Cr. Proc. 1916, art. 790, prohibiting reference by state to accused’s failure to testify, permitting question after recall of defendant whether he had testified in examining trial and defendant’s answer, which was in negative, was erroneous.
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    Dick Hays was convicted of selling intoxicating liquor, and he appeals.
    Reversed and remanded.
    King, Mahaffey & Wheeler and E. A. Smitha, all of Texarkana, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., for the State.
   LATTIMORE, J.

Conviction in district court of Bowie county for selling intoxieat-ing liquor; punishment fixed at one year in the penitentiary.

There are four hills of exception in the record, only one of which needs any discussion. The third bill of exceptions sets out the fact that after leaving the witness stand appellant was recalled by the district attorney who asked him the question: “Tou didn’t testify in the examining trial of this case, did you?” To which the defendant answered: “No, sir.” The bill shows that to this question and answer objection was made and exception taken as being violative of the law forbidding reference to the failure of the accused to testify. Under article 790, p. 720, Vernon’s O. O. P., appears citation of many authorities, among them Eads v. State, 66 Tex. Or. R. 548, 147 S. W. 592, holding it improper to refer to the fact that the accused failed to testify in an examining trial; and Swilley v. State, 73 Tex. Or. R. 619, 166 S. W. 733, holding it improper to ask the accused whether he had testified at a hearing on habeas corpus at a former time; also Brown v. State, 57 Tex. Or. R. 269, 122 S. W. 565, holding it reversible error for the prosecuting attorney to ask the accused whether he had testified on former trial, even though the court on request withdrew the matter from the consideration of the jury. , <

For the error mentioned, the judgment will be reversed and the cause remanded. 
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