ON MOTION FOR REHEARING.
HAWKINS, Judge.— Appellant brings to our attention a photostatic copy of bill of exception number two, which shows that in copying same in the transcript the typist made a mistake in letting it appear that the exception to the court’s qualification was not authenticated by the trial judge. It being shown by the bill now before us that the qualification thereto was properly excepted to, the qualification cannot be considered. We note, however, from the statement of facts that there were as many as a hundred people in the room where bets were being taken, and back of the screen where appellant was taking the bets two negroes were working in the same cage with *121appellant. The bill does not negative the fact that other parties may have witnessed and could have testified about the transaction upon which the State relied, hence the bill fails to show that the argument complained of was a necessary reference to the failure of appellant to testify. See Sec. 264 of Tex. Jur., page 397, for following statement:
“A bill complaining of a statement that certain testimony or facts had not been denied or disproved, or of a reference to the absence of evidence to show certain facts, or of an argument challenging the jury to explain certain matters as being an indirect reference to the failure of the accused to testify, is insufficient when it does not show that no one other than the appellant was in a position to contradict the testimony or to disprove the statement, or to explain the matter.”
Many cases are cited supporting the text, among them being Boone v. State, 90 Texas Crim. Rep., 374, 235 S. W., 580.
We .also call attention to the fact that the bill of exception does not certify that appellant did not testify as a witness. Mention thereof appears as ground of objection. See 4 Tex. Jur., Sec. 264; Mills v. State, 102 Texas Crim. Rep., 473, 277 S. W., 1077; and other cases cited in Note 15, under the text. The motion for rehearing is overruled.
Overruled.