We concur in the reversal of the case on the sole ground of the argument of the district attorney alluding to the appellants' failure to testify.
We are clearly of the opinion that the testimony of the owner of the alleged stolen hog was ample to show, not only that he was the real owner, but also in the possession of the hog in that he was in the "actual control, care and management," of it, when it was stolen, if it was stolen, and that there was no variance in the proof and allegations as to the possession. The court specifically submitted the question to the jury in his charge as follows:
"Possession of the person so unlawfully deprived of property is constituted by the exercise of actual control, care and management of the property, whether the same be lawful or not.
"In order to warrant a conviction in this case, the jury must find from the evidence, beyond a reasonable doubt, that the hog when taken (if you find it was taken), was from the possession of W.C. Smith. If the hog was in the possession of Fannie Farmer or George Crist when taken (if it was taken), or if you have a reasonable doubt thereof, you will acquit the defendants," which was all that was necessary, and having given that charge should not have given those or either of them requested by appellants on the subject.
We also think the testimony does not make the State's witness Henry Jackson a particeps criminis as principal, accomplice or accessory, or otherwise a party to the offense.
The judgment will be reversed on the sole ground of the objectionable argument of the district attorney excepted to.
Reversed and remanded