In his motion for rehearing, state's counsel cites many authorities to the point that the complaint of the reference in argument of the failure of the accused to testify is not available in the absence of exceptions showing that the accused did not in fact testify. This rule has been asserted many times, and its existence is not open to question. In its application, however, to the present record we are not able to concur with the views of the State's Attorney. On the face of the bill, as shown in the original opinion, it is made to appear that counsel in argument did refer to the appellant's failure to testify, and an exception was immediately addressed and a bill reserved in which the language used, referring to the accused, is: "He having elected not to testify in this cause." In holding the bill sufficient to comply with the rule heretofore announced, the opinion is expressed that no violence has been done to the precedents.
The motion is overruled.
Overruled. *Page 589