The State moves for rehearing, asserting that the argument of the State's attorney, complained of in bill of exceptions No. 5, on which alone this case was reversed, — was not in any sense such as would make of the statement a necessary reference to the failure of the appellant to testify, and hence that the reversal was erroneous.
The accused was not mentioned or directly referred to in the argument, which we here set out at greater length than appears in our original opinion. The State's attorney said:
"I ask you to remember how counsel for the defendant tried *Page 395 to make the witness admit that probably the firing pin was out of order. 'Do you think it would kill a man?' or 'Did he hold his finger on the trigger?' 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 defendant was guilty they would have offered evidence to prove his innocence."
The objection made and exception taken was to the whole of what we have quoted and not to any single part of same. Analysis of same seems to make clear that all of said remark, in word and intent, was a criticism of the manner and form of the conduct of appellant's defense by his counsel. It will be noted that throughout the word "They" was used. For instance, "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 offthey would have proven it? If they had doubts that defendant was guilty they would have offered evidence to prove his innocence."
Mr. Branch in Sec. 374 of his Annotated P. C. cites many authorities as supporting the proposition that if State's counsel in argument asks why defendant did not deny or show certain facts, this is not a reference to the failure of defendant to testify if he could have shown or denied such matters by another than himself, citing Arnold v. State,38 Tex. Crim. 7; Nite v. State, 41 Tex.Crim. Rep., and others. This is followed by the statement, in substance, by Mr. Branch that the bill of exceptions making such complaint must in and of itself show as a fact that defendant was the only person who could make such denial or explanation, citing Huff v. State, 103 S.W. Rep., 395; Reinhard v. State,52 Tex. Crim. 63, and others. We quote from what Judge Davidson says in Huff v. State, supra, as follows:
"But we have another line of decisions, which seem to be unbroken, that a bill of exceptions must manifest the error complained of and be complete within itself; that this court will not refer to other portions of the record to make a complete bill of exceptions. This bill does not show on its face that appellant was the only other party present at the time of the purchase of the whisky except the witness Bolt. In order to make this bill complete, it should have been shown by its terms that there were no other witnesses present except *Page 396 defendant and Bolt, or it should have shown, if it was a question of alibi, that there were no other witnesses by whom appellant could prove the alibi except himself. There may have been other witnesses present so far as this bill of exceptions is concerned, and we will not aid a bill by presuming there were not other witnesses present. This should have been shown on the face of the bill itself. As presented, the bill of exceptions does not require a review of the question, or, rather, require the court to reverse for this reason. The bill is too indefinite and uncertain."
This holding has often been approved. See Boone v. State,90 Tex. Crim. 374; Hubbard v. State, 251 S.W. Rep., 1054. In the case last cited Judge Morrow quotes from Boone v. State, supra, as follows:
"The statute is not shown to have been infringed, however, by disclosing that counsel, in argument, used language which might be construed as an implied or indirect allusion to the failure of the accused to testify. To come within the prohibition the implication must be a necessary one, that is, one that cannot reasonably be applied to the failure of the accused to produce other testimony than his own. Where there is other evidence or the absence of other evidence to which remarks may reasonably have been applied by the jury, the statute is not transgressed."
On this point see also Newton v. State, 275 S.W. Rep., 1055; Lindsey v. State, 276 S.W. Rep., 714; Quinn v. State, 279 S.W. Rep., 459, in which Judge Hawkins cites numerous other authorities. See also Boyer v. State, 32 S.W.2d 191.
Applying what we have been discussing to the facts before us in the instant case, it will be noted that not only does the bill in question fail to show that from no person other than appellant could proof have been made that the gun would not go off, and that no person other than appellant could have had knowledge of the facts going to show appellant's guilt or innocence, — but on the contrary the trial judge certifies in said bill as follows:
"Be it further remembered that defendant himself was not the only person who could deny or explain the transaction or events which were testified to by the witnesses for the State, and which were admitted by defendant," which quoted part of the bill is followed by setting out therein the names of persons who were present and in a position to see and know the facts of the alleged robbery, — who were not used as witnesses, and then it is stated as follows: *Page 397
"That defendant admitted in his confession, which was admitted without objection to its admission, that the events testified by the witnesses was correct; that the defendant was therefore not the only person who could have produced proof or testified as to a denial or explanation of the facts testified to by the State's witnesses."
It follows that in the opinion of the writer said bill of exceptions wholly fails to manifest reversible error.
No other ground for reversal appears, or is upheld by this court. That this appellant committed a crime of gravity enough to call for a death penalty, both at the hands of the jury and in the enforcement of the statute, is plain, and uncontroverted. With utmost respect, it seems to the writer wholly wrong to reverse for the reason stated, when the record is as above stated, and I can not agree to such course.
I respectfully dissent.