The appellant was convicted of the offense of theft of one head of cattle and his punishment was assessed at confinement in the State penitentiary for a term of two years.
We do not deem it necessary to state the testimony, which consists entirely of circumstances, because the judgment must be reversed on the argument of the district attorney in referring to appellant's failure to testify. The bill of exception shows that appellant did not testify in the case; that the district attorney in his closing argument to the jury said: "And yet, neither Fred Jackson nor Oren Jackson has testified in this case and explained where the meat came from" (meaning the meat appellant had sold on Saturday following the Friday on which Bob Higgins lost a heifer). The appellant, by his attorney, objected to said argument because it was a direct reference to appellant's failure to testify, to which the district attorney replied: "I made a mistake in saying Oren Jackson; I meant to say Onus Jackson." The court orally instructed the jury not to consider the remark of the district attorney that Oren Jackson had not testified in the case, as such remark was improper. Thereupon the district attorney stated to the jury that he did not mean to say Oren Jackson, but intended to say Onus Jackson, a brother of defendant; that he made a mistake and was sorry he did. This was a clear violation of Art. 710, C. C. P. It is unfortunate that the district attorney made the mistake; nevertheless his statement had the same injurious effect and was as much a violation of said article of the code of criminal procedure herein above referred to as if made intentionally. See Smith v. State,294 S.W. 221. *Page 316
For the error hereinabove pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.