The State, through the District Attorney of Archer County, has filed a motion for rehearing, contending that we erred in our original opinion by holding that a defendant has a right to comment on the State's failure to use a co-defendant as a witness in behalf of the State. It is asserted that in civil cases the failure of one of the parties to an action to testify raises a strong presumption against him, citing McCullough v. McCullough, 20 S.W.2d , 224, and other cases. The decisions in these cases are sound and in accord with our original opinion in this case, since our holding was that the State, in a criminal action, by failing to use a co-defendant as a witness, raised a presumption against itself which might be the subject of argument on the part of the accused.
It is also contended that the rule laid down is in conflict with the rule that the failure of a defendant in a criminal action to testify in his own behalf shall not be taken as a circumstance against him, or made the basis of an inference of his guilt. This is so by virtue of Art. 710 Cow. C. P. At common law, a defendant was not permitted to testify in his own behalf and the State could not, therefore, comment thereon, since there was nothing to discuss. However by Legislative action in this State, a defendant is permitted to testify in his own behalf and in case he declines to do so, the statute says that such fact shall not be alluded to or discussed by the State. However, we fail to see how this statute has any relation to the question under discussion.
Believing the case was properly disposed of on its merits, the State's motion for a rehearing is overruled. *Page 50
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.