The unlawful possession of whisky for the purpose of sale in a dry area is the offense; the punishment, a. fine of $500.00.
Peace officers, operating by virtue of a search warrant, searched the bedroom of appellant and her husband and found . therein a case or twenty-four pint bottles of whisky. Appellant was present at the time of the search; the husband was not.
Appellant did not testify as a witness, nor did .she offer any affirmative defense.
A bill of exception, approved without qualification, certifies— among other things — that State’s counsel, in his opening argument to the jury, said: “the defendant has in no wise attempted to show you gentlemen for what purpose Elizabeth Woods had that whisky in her possession.”
Appellant objected to that argument as being a comment upon her failure to testify.
There is no testimony showing or indicating that the argument could have referred to some other witness.
The argument was subject to the objection urged and in violation of Art. 710, C. C. P. See, also, Smith v. State, 131 Tex. Cr. 322, 98 S. W. (2d) 806; Hardrick v. State, 142 Tex. Cr. R. 520, 155 S. W. (2d) 367.
For the error pointed out, the judgment of the trial court is reversed and the cause is 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.