dissenting.
Although I dissented on original submission without written opinion I dissented to the reversal of the judgment of Gardner because he did not object when the complained of argument was made; therefore, even if the argument did constitute error, which I believe it did not, the error was waived and not preserved. A new rule of law with which I cannot agree and for which no authority is cited is stated in footnote 1 as follows:
“Appellants were tried together and it is apparent from the record that the attorneys for appellants were working closely together such that the objection of Stafford’s attorney to the prosecutor’s statement is sufficient to preserve the error for Gardner as well.”
I dissented to the reversal of the judgments of both Stafford and Gardner because the prosecutor’s argument did not constitute error.
It has been said many times that:
*397“The rule is well established by this Court that before an argument of the prosecution will constitute a comment on the failure of the appellant to testify, the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the appellant must be a necessary one. It is not sufficient that the language might be construed as an implied or indirect allusion.”
Edmond v. State, 566 S.W.2d 609 (Tex.Cr.App.1978); Nowlin v. State, 507 S.W.2d 534 (Tex.Cr.App.1974); Turner v. State, 504 S.W.2d 843 (Tex.Cr.App.1974); Armstrong v. State, 502 S.W.2d 731 (Tex.Cr.App.1973); Ramos v. State, 419 S.W.2d 359 (Tex.Cr.App.1967); Richardson v. State, 172 Tex.Cr.R. 299; 356 S.W.2d 676 (1962).
The prosecutor’s statement of which complaint is made and to which Stafford’s attorney objected as as follows:
“Mr. Mitchell told you in one breath that what lawyers have to say in the case is not evidence because they are not witnesses; that you must gain and gather your evidence from the witness stand. Those who raised their right hand and under penalty of oath swear to tell the truth so help you God. By way of example, what witness took the stand and told you jurors those cigarettes were already in that room at 3:00 a. m. April 29, 1962?
“MR. MITCHELL: Objection, Your Honor, that could be construed as a comment on the failure of the defendant to testify.
“THE COURT: Overrule your objection.”
In his objection Stafford’s attorney said that the argument could be construed to be comment on the failure of the defendant to testify. This was an accurate statement. The argument could have but did not necessarily refer to the appellant Stafford’s failure to testify nor did it necessarily refer to the appellant Gardner’s failure to testify.
A maid cleaned the room at approximately 2:30 a. m. The appellants checked into the room at 3:00 a. m.
“It is often stated as a settled rule of evidence that where a person, object, relation or state of things is proved to have existed at a particular time, its continuance is presumed until the contrary is shown. This so-called presumption has been applied to a great variety of subjects including: Ownership, possession and value of property, sanity and insanity of a person, continuance of human life, continuance of partnership, incompetency of a witness, retention of an existing domicile, continuance of illicit intercourse, continuance of marriage, continuance of rules of law and equity once existing in a foreign jurisdiction, and many others.” (Footnotes omitted.) McCormick and Ray, Evidence, Sec. 81 (2d ed. 1956).
See also Bell v. State, 142 Tex.Cr.R. 106, 161 S.W.2d 109 (1942); Cook v. State, 96 Tex.Cr.R. 586, 258 S.W. 1058 (Tex.Cr.App.1924); Walker v. State, 64 Tex.Cr.R. 70, 141 S.W. 243 (1911).
The maid was not called as a witness to testify whether or not there were any cigarettes in the room at 2:30 a. m. In view of the above presumption, her testimony as to whether or not there were cigarettes in the room when she left it would have given rise to a presumption of the continuity of the existing state of things and would have had probative value. The prosecutor’s argument can well be construed as a reference to the failure to obtain the testimony of the maid rather than a reference to the failure of the appellants to testify.
I dissent to the overruling of the State’s motion for rehearing.
ONION, P. J., and DOUGLAS, W. C. DAVIS, JJ., join in this dissent.