Adverting to the remarks in the original opinion with reference to the contention of the appellant that the argument quoted therein was an indirect reference to the appellant's failure to testify, the following additional statements from the record are made: Immediately after the deceased was wounded, the appellant with the gun still in his hands, went to the home of his father. Touching that occurrence the appellant introduced the testimony of his mother, from which we take the following quotation:
"The next time I saw Clarence was when he came running up to the house. He was very much excited and was apparently out of breath. He stopped just before he got to us, about as far as to that rail, I guess. He leaned up against some of the plow tools out there; I could not tell you what it was. He had a gun in his hand at that time. The gun there looks like it; I would not know it from any other gun. When he got there he called to his papa and said, 'Papa, Mr. Porter is shot; get a doctor quick.' Mr. Johnson did not stay there then; he said he didn't have enough gas in the car to get to town, and I told him I had some in the house, and he said, 'You all get in and put it in, and I will run down there.' Mr. Wash went running in that direction. I got the gasoline and Clarence and I got the car out and put the gasoline in it and tried to crank it, but we couldn't, and Clarence said to me, 'Mamma, send after Duke to go for the doctor,' and I sent for Duke Cordell to go after the doctor, and we worked with the car until we could get it started. He cranked it until he was out of breath, and then when he got it cranked he went back down home. After I got the gasoline, he and I made some statements; when I went out there with the gasoline I asked him how it happened, and how Mr. Porter got shot, and he said, 'Mamma, I was fooling with the gun and it accidentally went off,' and I asked him how bad he was hurt, and he said he didn't know. That was the same afternoon that Mr. Porter was killed; he told me that when we were putting the gasoline in the car. That was just about the time Mr. Johnson had gone down there, or just shortly *Page 115 afterward. After we got the car cranked he went off in that direction."
Appellant also introduced an excerpt from the testimony of his sister-in-law, Mrs. Bewley, as follows:
"Wash Johnson came just a short while after I reached the body of Mr. Porter; it was about —, oh, maybe ten minutes, five or ten, something like that, just a very short time."
It is apparent from the record that although the appellant went immediately to his father's home and conversed with him and reported to him that Mr. Porter was shot, no statement was made that the shooting was accidental. At least, the father was not called as a witness to show the making of such remark. The disturbance at the appellant's home attracted the attention of Patrick, and the appellant was asked if anyone was sick there. He replied that "old man Porter was sick, old man Bruce." In reply to the inquiry as to what was the matter with him, the appellant said "he did not know what might be the matter with him; that they had to send for a doctor." The failure of the appellant in the res gestæ statements to his father to refer to the shooting as accidental and his failure to put his father upon the stand are unexplained. In the case of Boone v. State, 90 Tex.Crim. R., it was declared that the statute does not deprive State's counsel, in argument, of making legitimate use of the evidence or the absence of evidence. From that case, which has often been followed, we take the following additional statement:
"The statute is not shown to have been infringed, however, by disclosing that counsel, in argument, used language which might be construed as an implied or indirect allusion to the failure of the accused to testify. To come within the prohibition the implication must be a necessary one, that is, one that cannot reasonably be applied to the failure of the accused to produce . . . other evidence, to which remarks may reasonably have been applied by the jury, the statute is not transgressed."
Considering the facts just mentioned, in connection with Patrick's testimony, it would seem that the appellant's silence on the trial was not necessarily the subject-matter of the remarks of counsel upon which the complaint is made. Application of the remarks apparently might have been made by the jury to the silence of the appellant with reference to the accidental shooting when the report was made to his father, the delay which occurred before it was made to his mother, to the fact that his father was not used as a witness, or to the fact *Page 116 that his declarations to Patrick were apparently inconsistent with the theory of the accidental shooting of the deceased.
The motion is overruled.
Overruled.
ON APPELLANT'S REQUEST FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.