ON MOTION FOR REHEARING.
MORRISON, Judge.We regret that in our original opinion we stated that Bill of Exception No. 2 failed to negative the fact that the argument was in answer to, or invited by, argument of appellant’s counsel. A re-examination of such bill shows that it contained such requisite statement.
*153Appellant has asked this court to differentiate the argument in the case at bar from that we held reversible in York v. State, 149 Tex. Cr. R. 654, 198 S. W. 2d 106. In the York case, only York and the deceased, his wife, were present at the time she was killed. We held that the argument to the effect that no explanation was made referred to the failure of the accused to tell the jury why he killed his wife.
In the case at bar, the prosecutor was arguing that the defense interposed by appellant’s wife was not consistent with appellant’s conduct. He was discussing the defensive theory raised by her testimony to the effect that appellant’s pawning of the pistol in Fort Worth did not constitute appropriation thereof, because appellant expressed the intention to later redeem the pistol and return it to the officer from whom he had taken it.
The prosecutor, in discussing such testimony, posed the question that if such were the facts as to appellant’s intentions, then why hadn’t the appellant notified the sheriff of the predicament in which he found himself? He said further that there was no evidence that appellant had done that which he reasoned appellant should have done if he had no intention of appropriating the pistol or depriving the owner of its value.
We do not think that such argument constituted a reference to the appellant’s failure to testify.
The appeal having been properly disposed of, appellant’s motion for rehearing is overruled.