Appellant insists that we erred in holding that the statement of the district attorney complained of in bill of exceptions No. 19 was not necessarily a comment on the failure of the appellant to testify. Said statement was as follows:
"No witness has testified that another person was with the defendant out there when Hall found him on the public road."
The quotation of this in the original opinion is typographically incorrect and for that reason we set it out here.
A revew of the record discloses that appellant was arrested in Rockwall County between Greenville and Dallas and that he was by a Buick roadster heavily loaded with intoxicating liquor. On the trial of the case he placed six witnesses on the stand to show in substance that they knew one Charles Cooper, saw him in Mt. Pleasant, Texas, on the night before appellant's arrest and that he was inquiring for this appellant; that he and appellant were seen together in conversation in Mt. Pleasant that night; that Cooper was heard to invite appellant to go with him to the "big town," apparently meaning Dallas, and that appellant accepted the invitation; that on the morning of this arrest and prior thereto appellant and another man, the latter a heavy set young man, were in Greenville, Texas, in a car, the heavy set man being at the wheel and driving; that this heavy set man was introduced as Charles Cooper, and that the car was a roadster; that appellant said they were going to Dallas; that Cooper was heavy set and young. By witnesses familiar with the location appellant endeavored to show that there was a railroad track not far from the place where he was arrested and that there was a cut through which said track ran, not far distant. The qualifications to the bill of exceptions complaining of this remark of the prosecution, must be accepted by this court as speaking the truth. From same we learn that in his argument to the jury on behalf of appellant, his counsel said:
"One Charley Cooper was the man who was with the defendant in the car at the time Earl Hall found the car on the road, and Charley Cooper was the driver of the car and was in the railroad cut at the time." *Page 508
To this argument the State's attorney replied in the language objected to. An examination of the record discloses that there was no testimony coming from either Mr. Hall, who found appellant in the road and arrested him, or from any of the young men who presently came up to where appellant and Mr. Hall were standing in the road, which would indicate the presence of any other person around the car or in the railroad cut. We do not think the language used by the State's attorney a necessary comment on the fact that appellant had not taken the witness stand, but on the contrary believe that it appears to be a pertinent answer to the statement made by appellant's attorney, and that the effect of same is merely a statement that there was no testimony supporting the argument of appellant's attorney when he said that Charley Cooper was in the railroad cut.
Being unable to agree with appellant's contention, his motion for rehearing will be overruled.
Overruled.