This appellant stands convicted under an indictment charging him with possession of a still, or a substitute therefor, etc.
*516The evidence submitted by the State was amply sufficient to sustain the verdict rendered.
The record discloses the following occurrence during the argument of the Solicitor:
“By Mr. Pounders:
“Defendant objects to the statement by the Solicitor ‘has his possession of that part of a still been explained to you sufficiently?’ Defendant objects and moves to exclude the statement, and asks the court to declare a mistrial because of the Solicitor commenting on the absence of the defendant testifying.
“By the Court:
“Sustain the motion, that part of the argument, gentlemen, about something having not been explained to you, is excluded and please do not consider that when you deliberate, the basis for the ruling is that it is an indirect reference to the fact that the defendant did not get on the stand and testify, the law says the defendant has the privilege of getting on the stand or not, but if he does not, that fact cannot be commented upon, and that is excluded. And as far as the motion for a mistrial is concerned, the court overrules that.
"Defendant excepts to the ruling of the court on the motion for a mistrial.”
During the oral charge to the jury the court instructed the jury as follows: “Something has been said in the arguments, gentlemen, which needs clarifying; this is, a comment was made indirectly that the defendant did not furnish certain proof. The law is that a defendant can testify on the stand if he wants to; the law says he does not have to — he can make his decision, and the law says that it cannot be commented on directly or indirectly, and that is excluded from your consideration and please do not consider that when you deliberate. The law is — every defendant tried in this State is presumed to be innocent until he is proven guilty by the evidence beyond a reasonable doubt and to a moral certainty, and if the State has met that burden and has -proven him guilty, it is your duty to convict him; if it has. not, it is your duty to acquit him whether the defendant took the stand or not.”
No evidence was offered by the defense in the trial below.
The appellant timely filed a motion for a new trial, one of the grounds of which asserted error because of the aforemention-. ed remarks of the Solicitor.
It is the opinion of the writer that fairness to this appellant demands that on this appeal we consider that the remarks of the court fixed the character of the Solicitor’s remarks in so far as the jury, was concerned, that is that the Solicitor’s statement was an indirect comment on the appellant’s failure to testify. Undoubtedly the learned and careful trial judge was attempting, in so far as he could, to eliminate any prejudice to appellant’s rights.
In the recent case of Robertson v. State, Ala.App., 53 So.2d 575,1 we had occasion to consider a similar point. Our conclusions were expressed as follows:
“Prior to 23 June 1949, Section 305, Title 15, Code of Alabama 1940 read:
“ 'On the trial of all indictments, complaints, or other criminal -proceedings, the' person on trial shall,' at his own request, but not otherwise, be a competent witness; and his failure to make such request shall' not create any presumption against him, nor be the subject of comment by counsel.’
“By an Act approved 23 June 1949, Gen.Acts of Alabama, 1949, p. 150, Section 305, Title 15, pocket parts, Code of Alabama 1940, Section 305, supra, was amended by adding the following sentence:
“ ‘If the solicitor or other prosecuting attorney makes any comment concerning the defendant’s failure to testify, a new trial must be granted on motion filed within thirty days from entry of the judgment.’ (Italics ours.)
“Prior to this amendment a reversal of a case was sometimes denied because of the Solicitor’s comment on the defendant’s failure to testify, where the trial court. *517sustained an objection to such comment, and promptly, appropriately, and vigorously instructed the jury as to the impropriety of such remarks. Cable v. State, 245 Ala. 53, 15 So.2d 600; Troup v. State, 32 Ala. App. 309, 26 So.2d 611.
“It is apparent that by the 1949 amendment, supra, it was the intent of the legislature to remove from the operation of the principle of ‘error without injury’ the improper comment by a Solicitor relative to a defendant’s failure to testify. Such comment is now an absolute ground for the granting of a motion for a new trial.”
This cause must therefore be reversed and remanded, and it is so ordered.
Reversed and remanded.
. Ante, p. 117.