The offense is robbery with firearms; the punishment, death.
On the third of November, 1934, appellant exhibited a pistol and robbed J. B. Burch. He then required Mr. Burch to carry him in his automobile about three-fourths of a mile to the Blue Bonnet Store in Waco. Entering the store, he *Page 391 robbed one of the employees. He then entered Mr. Burch's car and drove away. Later, when officers attempted to arrest him, he drew a pistol and resisted. After being arrested he made a voluntary confession. On the trial of the case he introduced no evidence. No shots were fired by appellant at the time of the commission of the robberies or at the time of the arrest, and no one was physically injured.
The confession embraced a statement to the fact that appellant knew Raymond Hamilton. Said statement was not so connected with the remainder of the confession as that its elimination would have destroyed or affected the meaning thereof. Appellant's objection to the introduction of the statement to the effect that he knew Raymond Hamilton should have been sustained. However, we do not predicate a reversal on this error.
It is shown in bill of exception No. 5 that counsel for the State, in argument to the jury, used language as follows: "It was ludicrous for counsel, when they presented no defense, to try to make this jury doubt that the gun would go off. Don't you know that if they had any doubt that the gun would go off they would have proven it? If they had doubts that the defendant was guilty they would have offered evidence to prove his innocence." Appellant objected to the argument on the ground that it was a reference to his failure to testify. Burch and appellant were alone in an automobile when the alleged robbery occurred. Appellant was the only person who could have denied Burch's testimony to the effect that appellant exhibited a pistol and robbed him. Appellant did not testify. We think that the argument obviously referred to the failure of appellant to take the stand as a witness, and that the jury could have drawn no other inference therefrom. The mandatory provisions of Art. 710, C. C. P., having been violated by the attorney representing the State, it becomes our duty to order a reversal. Singleton v. State, 245 S.W. 922; Sweet v. State,23 S.W.2d 370.
The remainder of the bills of exception are not deemed to present error.
For the error discussed, 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. *Page 392
ON MOTION FOR REHEARING.