Appellant was assessed a fine of $50.00 upon his conviction for failure to stop and render aid to parties with whom his car collided.
It is difficult to understand why the trial judge would overrule the motion for a new trial in this case. The State's Attorney has confessed error which is plainly shown by the record.
Appellant did not testify. When the jury retired to consider the verdict they discussed this fact and considered it as a circumstance against him, contrary to the provisions of Article 710, Vernon's Ann. C. C. P., as interpreted by many decisions of the Court annotated under said Article (Note 44). See also Article 753, Sec. 8, Vernon's Ann. C. C. P. and authorities cited thereunder, as well as Stewart v. State,206 S.W.2d 88.
The law which permits the judge to discuss the failure of a defendant to testify, in his charge, at the same time forbids the prosecution to refer to such failure, or the jury to consider it as a circumstance against him. It may appear to be inconsistent, but it is the law, passed by the legislature, which this Court and all trial courts should respect. Under the showing made, with the admitted fact that the jury did discuss the appellant's failure to testify in his own behalf and considered it as a circumstance against him, the motion for a new trial should have been granted.
The judgment of the trial court is reversed and the cause is remanded.
ON MOTION FOR REHEARING.