Did we err in holding that in his reference to appellant's failure to testify, the State's attorney was but replying in kind to an argument made by appellant's attorney based on his client's refusal or failure to take the witness stand, and that this was not reversible error? Appellant insists that our opinion so holding was contrary to that of this court in Hunt v. State, 28 Texas Crim. App. 149, 12 S.W. Rep. 737, and that what was said in that case was correct. Comparing that case with the one before us, we note that in the qualification of the bill of exceptions taken to the argument of the State's attorney in the Hunt case, supra, there is quoted what was said by the defendant's attorney which was relied upon as provoking the acts and statement of the State's *Page 363 attorney therein. It appears that some witness named Stevens had testified relative to admissions by the accused, referring to which the defendant's attorney said: "You have not yet heard the defendant's statements." We observe that this may have been intended only as a thrust at the truthfulness of the witness Stevens. However, when the State's attorney was closing the argument in the Hunt case, he said it was the same old story, — defendant's mouth is closed, and picked up the acts of the last Legislature, and began to read the act allowing the defendant to testify, when the court called him to order of the court's own motion, and told him he could not read that law in the hearing of the jury; in reply to which admonition of the court the State's attorney wanted to know if the court was going to allow defense counsel to sing that same old song, and not allow the State to reply. Without specifically stating what called for such expression, this court proceeded to state in its opinion as follows:
"The language of our statute prohibits any allusion to, as well as comment on, a defendant's failure to testify in his own behalf. No argument made by the defendant's counsel could or would justify the prosecuting attorney in alluding to or commenting upon the facts in violation of the plain letter of the law."
Authorities from other states were then cited and quoted from, and these will be later referred to in this opinion.
The Hunt opinion was our first expression upon the subject after the passage of the law allowing the defendant in a criminal case to testify and forbidding comment on or allusion to his failure so to do. This case has been cited and referred to in eight volumes of the reports of this court's opinions since its rendition, approving that part of the opinion holding, in effect, that the intentional, unprovoked reference by State's counsel to the failure of defendant to testify, would be cause for reversal; but in the only two instances within the knowledge of the writer of this opinion, where the correctness of the holding in the Hunt case, supra, viz.: that where the attorney for the accused voluntarily and of his own intention brought into the case the silence of the accused and his failure to testify, — this court in each declined to follow or assent to the correctness of the opinion in the Hunt case in this regard. The first of these is Parker v. State,39 Tex. Crim. 262, an opinion by a court composed of Judges Hurt, Henderson and Davidson. The opinion was written by Judge Henderson. In that case the defense attorney made a plain and unquestionable reference to the failure of *Page 364 the accused to testify, as did also the State's attorney in his closing argument in reply, the latter being made the subject of a bill of exceptions by the accused. This bill is qualified, as in the instant case, by a statement of the trial court as follows: "The remarks of the county attorney were in reply to a statement made by said counsel for the defendant," and after some discussion the court followed the above statement by announcing the following rule: "We hold that when appellant brings this matter to the attention of the jury, he can not complain if the State, in reply, remarks upon his suggestion." The opinion further differentiates the Hunt case, supra, and in effect holds that part of the Hunt opinion above quoted is obiter dicta, and not necessary to a decision of the case. The Parker case, supra, on this point, is approved in Mathews v. State, 41 Tex.Crim. Rep.. See Martin v. State,41 Tex. Crim. 246; McCandless v. State, 42 Tex.Crim. Rep.. The Wade case, 43 Tex.Crim. Rep., is identical in principle with the Parker case, supra. It appears therein that after three speeches had been made in argument of the case, the defense put a witness on the stand who swore he was conveying the defendant back to jail that evening when the latter told him that if they had put him, the defendant, on the stand, he would have told the whole thing. He had not been placed on the witness stand during the trial. This court held that discussion by the jury of his failure to testify, was not error. Hunt case, supra, and others were cited, and the court further said that in those cases the objection was based on "a gratuitous use of the fact that defendant failed to testify," but that in the case before the court no error was shown, "Being a voluntary proof of the fact of his failure to testify by defendant himself, through his counsel, certainly appellant can not complain." Parker's case, supra, was quoted with approval, and the rule again stated as follows:
"So we hold here that, where defendant introduces the fact for the consideration of the jury that he has failed to testify, he can not complain because the State's counsel comments upon the same, nor that the jury, in considering and passing upon his rights, discusses the same in all of its phases. The statute inhibiting the State's counsel or jury from commenting upon or alluding to the fact of defendant's failure to testify, or the jury from considering and discussing the same, in passing upon the rights of the defendant with the evidence adduced upon the trial, is a defensive statute, and not an offensive one. Before a defendant can avail himself of its provisions, the spirit, letter, object, and purpose of the statute must *Page 365 not be violated first by himself, and then seek subsequently to use it as a weapon of defense. We do not think the court erred in refusing a new trial on this ground. We must say here that we deprecate the use of the failure of the defendant to testify. It should not be proven on the trial, and should not be considered by the jury at all. But, as indicated, if appellant or his counsel places the fact in evidence, he can not be heard to take advantage of his own wrong."
Thus stand the decisions of this court on the exact question here involved up to this time.
We have a somewhat similar question arising out of the language of Art. 759, C. C. P., which provides that when a new trial is granted, the former conviction shall not be regarded as any presumption of guilt, "nor shall it be alluded to in argument." In Mathews' case, 41 Tex.Crim. R., the state's attorney's allusion to former trial was held justified by the fact that defendant had voluntarily brought out the fact of such former trial by his cross-examination of witnesses. In Patterson v. State, 87 Tex.Crim. R., — an opinion by Judge Morrow, — we said that it has never been regarded as reversible error for the fact of a former conviction to be referred to when such fact was already known to the jury trying the case, and it is stated that the contrary is the rule, upon citation of many authorities. See Baines v. State, 43 Tex. Crim. 490. In Henderson v. State, 104 Tex.Crim. R., also by Judge Morrow, the rule is re-affirmed, and Judge Ramsey's opinion in Smith v. State, 52 Tex.Crim. R., is quoted. As to the decisions of other states on the question here involved, we note that none of the cases cited by Judge White in the Hunt case, supra, are cases in which the attorney for the accused made a plain unquestioned argument in favor of his client based on his refusal to testify, as in the instant case. The only case referred to in that opinion which remotely supports such proposition is Commonwealth v. Scott, 123 Mass. 239, which, in effect, says that the state's attorney could not discuss the failure of the accused to testify because of "superfluous or irregular suggestions of defense counsel." This would seem to be strictly applicable to what was done by the defense counsel as set out in the opinion in the Hunt case, supra, where at most said counsel made an irregular suggestion, — but same has no force as a precedent or authority when the defense attorney makes a direct and forcible appeal to the jury to look at his client's silence as similar to that of Christ upon his trial when he sat dumb before his accusers. *Page 366
In Calkins v. State, 18 Ohio, 372, it appears that while the state's attorney was arguing certain facts to the jury, the accused spoke up and asserted the facts to be different. The state's attorney said: "Mr. Calkins, you had an opportunity to testify and did not do so." The appellate court held the retort was provoked, and that it was not erroneous. In 12 Cyc. at page 582, are cited many authorities sustaining the rule that remarks of the prosecuting attorney which otherwise would be improper, are not grounds for exception if they are provoked by defense counsel. In Hyland v. State, 144 Mo. 302, the court said: "He had no right to inject that issue in the argument, then complain if it was promptly met and replied to." Mr. Branch's in Sec. 363, cites many Texas authorities sustaining the proposition that the defendant is not entitled to complain of improper argument of state's counsel which is occasioned and justified by the argument of his own counsel. The rule laid down in the Parker case, supra, and followed in the Mathews case and the Wade case, supra, and by this court in its original opinion in the present case, seems fair and adequate, and one regarded as modifying, or at least restricting the Hunt case to the particular facts at that time before the court.
The other question raised by appellant in his motion seems to us to present no merit.
The motion for rehearing will be overruled.
Overruled.