In an elaborate brief and forceful oral argument by attorneys who have come into the case since its affirmance, it is insisted that a reversal of the judgment should have been accorded by reason of the violation of the article of the statute forbidding the comment upon the failure of the accused to testify. An examination of the bill upon the subject reveals the fact that the district attorney, referring to the defendant, said:
"He knows where he was before he went to his room. Why don't he bring witnesses here to prove it? He knows where he was; why did he not bring some witnesses to show where he was?"
In qualifying the bill, the court used the following language:
"It was not shown nor suggested anywhere in the evidence that he was alone at time referred to by the district attorney."
It occurs to us that the bill fails to show error. The facts are analogous to the case of Gallegos v. State, 49 Tex. Crim. 116, and other cases of like nature to which reference is made in Boone v. State, 235 S.W. Rep. 580.
The motion is overruled.
Overruled.