It is contended by appellant that the opinion on the original hearing and on motion for rehearing deny him the right to remain silent, which is guaranteed him by our Constitution. It is also claimed that these opinions are in conflict with a prior decision in this same case, reported in 272 S.W. 783. While accused had the right to remain silent in this case, he didn't exercise that right. He talked, and did so under circumstances and at a time and place which made his conversations admissible as res gestæ and part of these conversations were admitted as res gestæ. In two of these conversations he failed to disclose the important fact that the shooting was an accident. The matters referred to in our former opinion, reported in 272 S.W. 783, were not of this character. The attorney mentioned in the original opinion referred directly to one witness who testified to res gestæ statements and what we said was intended to go no further than to hold that his language was not a necessary reference to the appellant's failure to testify, but may have referred to his failure to produce through the mouth of two other witnesses what he did through the mouth of one, namely his mother, who testified that he told her it was an accident. That a comment on the failure of the accused to produce evidence is not a reference to his failure to testify has been many times held. Jackson v. State, 31 Tex.Crim. Rep.; Wooten v. State,50 Tex. Crim. 151; Branch's P. C., Sec. 373.
Motion denied.
Motion denied.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 117