Appellant was indicted for the murder of D. Jones. Conviction was for manslaughter, punishment being five years in the penitentiary.
It is unnecessary to state the facts. The judgment must be reversed for a clear violation of the mandatory provision of Art. 710, C. C. P., which prohibits the allusion to or comment on accused's failure to testify. It is suggested by the State's Attorney that the bill of exception bringing the point forward may not be full enough. The bill shows that the language used by the County Attorney was: "This defendant not testifying, this defendant, I do not mean to refer to this defendant not testifying." It also shows that attorney for appellant immediately objected because the language was in violation of the statute and was a direct reference to the failure of appellant to testify, "He having elected to not testify in this cause." The bill in our opinion does not fail to show that appellant did not testify. The very language objected to makes it apparent and the further statement in quotation removes any possible doubt. It is unfortunate that the County Attorney forgot himself. Realizing at once the mistake he had made he undertook to retrieve it, but if the means employed had been intentional the failure of accused to testify could have been no more forcefully called to the jury's attention. As long as the statute remains as it is this court must enforce it. We find in the record an affidavit with reference to this matter, but in view of the court's approval of the bill of exception, together with the fact that he instructed the jury not *Page 588 to consider the remark of counsel, we cannot consider the affidavit.
Several other bills of exception are found in the record. Some of them are qualified. We think, as presented, none of them show error. One of them complains that the state was permitted to prove that "deceased did not make any effort to pull his gun out * * * just before the defendant shot him." Of course the state had a right to prove, if it could, that deceased made no effort to draw a gun. The objection was that the question called for a conclusion of the witness, but the bill is not sufficiently full to make this apparent. The matter is upon a vital issue in the case and attention is directed to it in order that upon another trial examination of witnesses upon this point may not involve their conclusions if it did do so in the present trial.
The judgment is reversed and the cause remanded.
Reversed and remanded.
ON STATE'S MOTION FOR REHEARING.