Opinion
No. 17745.
Delivered November 6, 1935.
Theft — Argument.
In prosecution for theft of one head of cattle, wherein the defendant had not testified, statement of the district attorney in his closing argument to the jury: "And yet, neither Fred Jackson nor Oren Jackson has testified in this case and explained where the meat came from" (meaning the meat defendant had sold on Saturday following the Friday on which complainant lost a heifer) held reversible error as comment on failure of defendant to testify and in violation of article 710, C. C. P., notwithstanding district attorney stated to jury that he made a mistake and that he intended to say that defendant's brother did not testify, and that court orally instructed jury not to consider improper statement.
Appeal from the District Court of Deaf Smith County. Tried below before the Hon. Reese Tatum, Judge.
Appeal from conviction for theft of one head of cattle; penalty, confinement in penitentiary for two years.
Reversed and remanded.
The opinion states the case.
S. F. Rose, of Amarillo, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The appellant was convicted of the offense of theft of one head of cattle and his punishment was assessed at confinement in the State penitentiary for a term of two years.
We do not deem it necessary to state the testimony, which consists entirely of circumstances, because the judgment must be reversed on the argument of the district attorney in referring to appellant's failure to testify. The bill of exception shows that appellant did not testify in the case; that the district attorney in his closing argument to the jury said: "And yet, neither Fred Jackson nor Oren Jackson has testified in this case and explained where the meat came from" (meaning the meat appellant had sold on Saturday following the Friday on which Bob Higgins lost a heifer). The appellant, by his attorney, objected to said argument because it was a direct reference to appellant's failure to testify, to which the district attorney replied: "I made a mistake in saying Oren Jackson; I meant to say Onus Jackson." The court orally instructed the jury not to consider the remark of the district attorney that Oren Jackson had not testified in the case, as such remark was improper. Thereupon the district attorney stated to the jury that he did not mean to say Oren Jackson, but intended to say Onus Jackson, a brother of defendant; that he made a mistake and was sorry he did. This was a clear violation of Art. 710, C. C. P. It is unfortunate that the district attorney made the mistake; nevertheless his statement had the same injurious effect and was as much a violation of said article of the code of criminal procedure herein above referred to as if made intentionally. See Smith v. State, 294 S.W. 221.
For the error hereinabove pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.
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.