The offense is sodomy; the punishment, two years.
In view of our disposition of this appeal, a statement of the facts is deemed unnecessary.
Bill of Exception No. 1 reads as follows:
“BE IT REMEMBERED, that on the trial of the above styled and numbered cause, that while Z. D. Allen, one of the attorneys for the Defendant, was arguing the case to the Jury he said ‘where is Alfred Bohannon, he was indicted for this same offense, the State could call him, but we * * * ’ and started to argue further the State’s failure to call the co-indictee Alfred Bohannon, as a witness.
“One of the Attorneys representing the State, at this point objected to said argument as follows:
“ ‘If the Court please we object to the Defendant’s Counsel arguing anything about Bohannon not being called as a witness by the State. It would be reversible error for us to call Alfred Bo-hannon to —witness stand— and force him to claim his Constitutional immunity’. Which objection was by the Court sustained and Defendant’s Counsel was not permitted to argue further the States failure to call Bo--hannon as a witness.
“The defendant' then and there in open' Court excepted and moved for a mistrial, and here and now tenders this her Bill of Exceptions and asks that the same be signed and filed as a part of the Record in this case.”
Appellant relies upon Offerle v. State, 136 Tex.Cr.R. 44, 123 S.W.2d 350, which is authority for the rule that an accused has the right to comment during argument upon the State’s failure to call a co-indictee who was available as a witness for the State under Article 711 Vernon’s Ann.C.C.P., as interpreted by our Court of Appeals in the early case of Rangel v. State, 22 Tex.App. 642, 3 S.W. 788, and consistently followed by this Court through the years.
Unless we followed the rule announced in Offerle, we would preclude an accused from arguing the failure of the State to call any witness available to them which would be in direct conflict with the long established rule permitting either side to comment upon the failure of his adversary to call available competent witnesses. This rule and the cases supporting it are found in 56 Tex.Juris. 2, Sec. 259 and 261.
The State contends that since, as they say, Washburn v. State, 164 Tex.Cr.R. 448, 299 S.W.2d 706, it has been reversible error for the State to call as a witness a co-indictee who claims his privilege against self incrimination, that the accused should not in all fairness be allowed to argue the failure of the State to call such an accomplice witness. A cursory examination of Washburn will reveal that it was really reversed because the State was permitted *392to propound 21 pages of fact laden questions to the accomplice Nelson, after his counsel had advised the court that Nelson would claim his privilege, and after Nelson had declined to answer each question as it was propounded and then the State was permitted to offer evidence which corroborated and supported the facts and circumstances embraced in the questions previously propounded to Nelson. Such a holding was proper, but only to that extent does it alter the well established rule that each party may properly argue the failure of the opposition to call available and competent witnesses.
For the error of the Court in prejudicially limiting appellant’s argument, the judgment is reversed and the cause remanded.
Upon further prosecution of this accused, we recommend the form of the indictment set forth in Quillin v. State, 79 Tex.Cr.R. 497, 187 S.W. 199, S A.L.R. 773, rather than the one before us here.