Conviction is for burglary, punishment assessed at three years in the penitentiary.
The indictment charged that Willie D. Darby, John Douglas Johnson, Alvin Porter, Valquit Burney and James Washington jointly burglarized a house controlled by G. H. Owens. The record shows that Darby and Washington had entered pleas of guilty and were serving terms in the penitentiary. Porter was alone upon trial in the present case.
The evidence shows that a furniture store was burglarized on October 17, 1943, and three gas stoves stolen. It is further in evidence that appellant on the same day sold a stove to Alberta Good, telling her at the time that his boss had given the stove to appellant. With appellant at the time of the sale to Alberta Good were Burney and Washington. Ben Davis testified that he also bought a stove from appellant under rather suspicious circumstances. This witness saw no one with appellant at the time this witness bought the stove. Both stoves mentioned were recovered by officers and identified as two of those stolen. Up to this point the State had made out a case of possession by appellant of recently stolen property, under Sec. 2346, p. 1283, Branch's Ann. Tex. P. C., and cases cited thereunder.
Appellant testified, admitting the sale to Good, denying, however, that he told her his boss had given it to him; but asserted that he received the stove from Washington, and had no part in the burglary. He denied in toto the sale to Davis. The State then placed upon the stand Washington who had been brought from the penitentiary to testify. He testified that only he and Darby *Page 648 burglarized the store. The State claimed surprise, and the witness admitted that he had told officers that appellant and the other parties indicted participated in the burglary, and had told the same story to the Assistant District Attorney the night before he was placed on the witness stand. He having misled the representatives of the State, they, of course, had the right to impeach him by showing his contradictory stories, but apparently in an effort to get Washington to retract his evidence that only he and Darby were guilty of the burglary the State continued to question the witness, who steadfastly asserted that his former statements were untrue and that appellant, Burney and Johnson had nothing to do with the burglary and that he and Darby met appellant on the street after the burglary had been committed. Thus it will be seen that the State by Washington, if the jury had believed him, destroyed the case theretofore made out against appellant. Evidently the jury gave no credence to this witness' evidence.
Six bills of exception appear in the record. None appears to present error nor call for discussion save the fifth. It reveals that during the closing argument of the District Attorney he used the following language.
"Today is the first time that the defendant has ever made a statement or explanation concerning his connection with this case, that is, with the burglary. He did not make a statement at the time of his arrest by an officer and if he had been innocent he would have given an explanation at the time of his arrest _____ that some other man let him have the stove."
The argument was objected to and overruled. We find no evidence supporting the statement that appellant's first explanation concerning the burglary was in his evidence on the trial, nor that he was silent when arrested. Indeed, it would have been error to admit evidence of appellant's silence when arrested, over his objection. See Brown v. State, 101 Tex. Crim. 639,276 S.W. 929; Henson v. State, 101 Tex.Crim. R.,276 S.W. 926; Stach v. State, 97 Tex.Crim. R.; 260 S.W. 569; Myers v. State, 96 Tex.Crim. Rep.; 258 S.W. 821. Many other authorities are referred to in the cases mentioned. In his zeal the representative of the State supplied this improper evidence and utilized it against appellant.
For the error mentioned the judgment must be reversed and the cause remanded, and it is so ordered. *Page 649
ON MOTION FOR REHEARING.