*59ON appellant’s motion for rehearing.
BEAUCHAMP, Judge.On original submission this, case was presented by both brief and argument. All questions raised were discussed, as the writer believes, to a correct conclusion. A very insistent motion, however, has been filed in which the position is taken that in as much as the sheriff and his deputy appeared on the premises uninvited, and viewed from open windows the gambling, without having obtained a search warrant, that the evidence of what they saw was erroneously admitted. This view was before the Court and was so discussed in the original opinion that we find ourselves much at a loss to enlarge upon that opinion. It is noted, however, that the things the officers saw taking place would hardly be sufficient within themselves to make the State’s case. After they were invited to enter the room, they procured additional evidence which was utilized by the prosecution to sustain the charge as laid in the indictment to the effect that the accused was unlawfully keeping a certain building, room, and place for the purpose of being used for a place to bet and wager, and to gamble with cards and dice, and as a place where people resorted to gamble, bet and wager on games. If appellant had refused to permit the officers to enter the premises, and had not previously admitted his guilt as testified to by the sheriff, the evidence sufficient to convict could only have been obtained by securing a search warrant under all of the circumstances as we view them. The State’s case was not made by what the sheriff and his deputy saw through the windows, nor was it made by all of the gambling that took place that particular night. The paraphernalia found in the room, together with the statements in the evidence of the gamblers, and the admission a few days prior thereto by appellant to the sheriff, are required to sustain the conviction.
The authorities cited by appellant will not sustain the contention that the evidence was obtained by an unlawful entry of the premises. As observed in the original opinion, they violated no penal law in driving into the premises and stopping the car. The evidence discloses no act of trespass sufficient to sustain an action for damages. They entered by the driveway which was open to the public and apparently, under all of the circumstances, with an implied invitation to the public to use that driveway. If the sheriff and his deputy were not welcome guests there is, nevertheless, ground for construction that they were invited guests.
*60The motion contains further insistence that the prosecuting attorney committed error in referring to the failure of defendant to testify. It is a well settled rule that where the prosecuting attorney refers to the absence of testimony which only the appellant could give this will be construed as a reference to his failure to testify. An analysis of the bill in the instant case, however, shows that the things referred to by the argument took place in the presence of several witnesses in the case and, if incorrect, might have been refuted by either of the several witnesses. It was not a case in which the appellant was the only person who could give the evidence. For this reason we could not construe the argument to be a reference to the failure of the accused to testify. In so expressing ourselves we do not recede from the conclusion in the original opinion, that proper objection was not made to such arguments.
Believing that the case was correctly disposed of, the motion for rehearing is overruled.