The offense is murder; the punishment, *Page 516 confinement in the penitentiary for eight years.
It was charged in the indictment, in substance, that appellant, with malice aforethought, killed John Green by shooting him with a gun.
Deceased operated a filing station in the city of Cleburne. About 7:30 p.m. on the 16th day of May, 1934, he ordered appellant away from his station. Declining to leave, appellant used language that offended deceased. A difficulty ensued in which appellant, according to the State's testimony, struck at deceased. Deceased secured a meat cleaver and appellant ran across the street and picked up a rock, which he threw at deceased. When he was attempting to get another rock, deceased's son grabbed appellant and threw him to the ground. While he was on top of appellant, deceased came up with the meat cleaver and struck appellant on the head. According to the State's version, appellant left the scene of the difficulty with the statement that he would be back and "it would cost deceased plenty." The proof on the part of the State was to the further effect that shortly after leaving the filling station, appellant stated that he would kill deceased before morning. Approximately an hour and twenty minutes later, while deceased was sitting in front of his station, someone shot him from ambush. Between 10:30 and 11 o'clock on the same night an officer arrested appellant in the town of Cleburne. Appellant's trousers were damp below the knees, and his shoes were wet and muddy. The morning after the homicide officers went to a tree which was about eighty steps from the filing station. About ten feet from the tree they found some empty shells which were designed for a .351 automatic Winchester rifle. In a creek near the place where the shells were discovered the officers found a .351 automatic Winchester rifle. The water in the creek was eight inches deep. The numbers on the gun had been removed. There were tracks on the edge of the creek near the point where the gun was recovered. The shoes appellant had on when arrested were applied to these tracks. The testimony of the officers was to the effect that the shoes fitted the tracks perfectly. One of the officers testified that the imprint of the heel was smooth. Another officer testified that he observed the imprint of a monogram in the heel part of the track. During the progress of the trial appellant's counsel had soil brought from the creek to the courthouse. In the presence of the jury, he handed the officer the shoes appellant wore on the occasion of the homicide. These shoes had a "monogram rubber heel." Pressing the shoes into the dirt, it was shown that the monogram *Page 517 made a plain imprint. Appellant introduced his mother as a witness, who testified on direct examination that she had never seen the rifle the officers found in the creek and which was introduced in evidence. She testified, further, that appellant did not have but one pair of shoes at the time of the homicide, and that he owned no gun. On cross-examination by counsel for the State she testified as follows: "I testified about those shoes, but I don't know where Ikey (appellant) bought those shoes. I did'nt ask him where he bought those shoes. I know as a matter of fact that those shoes have been worked on since the night John Green was killed. They have been in a shoe shop and have had new heels put on them. As to what other work was done to them, they were shined. That work was done in a shoe shop at Fort Worth. As to whether or not that is the shop where they lengthen shoes or shorten shoes or remake them, I did'nt ask them about that. As to whether or not I know there is a shop up there where they can take a No. 7 shoe and cut it down to a No. 6 shoe or make it longer or put new parts in it and shorten it, I don't know a thing about the shoe shops in Fort Worth. I do know that since the time of this killing those shoes have been worked on in a shoe shop in Fort Worth. They do not have the same heels on them now that they had on them at the time John Green was killed. These shoes have not had any new soles put on them since the time of the killing. The heels were worn and one side of the heels were pretty badly worn at the time new heels were put on them since the time of the killing. I carried the shoes to the shoe shop to have that work done myself. I carried them to the shoe shop and had them repaired. I had new heels put on the shoes. I did that on Friday of last week. I knew this trial was set for today. As to what I did with the old heels, I didn't have anything to do with them. Of course, I know those were the same shoes he had on the night he was charged with killing John Green. I don't know the name of the shoe shop I took those shoes to. I don't know anything about the name of the shoe shop. The shoe shop I took the shoes to was behind Renfro's Drug Store on Houston Street, southwest of the old court house."
Appellant did not testify in his own behalf. He introduced a witness who testified that she saw a man behind the tree near where the shells were found on the occasion of the homicide, and that he was wearing; suspenders. Appellant's proof was to the effect that he did not wear suspenders. A witness for the State testified that he saw the bulk of a man behind the tree *Page 518 on the occasion in question, but declared that it was too dark to tell whether he had on suspenders. Based upon testimony that appellant was several blocks away from the scene of the homicide shortly before deceased was shot, the court submitted an instruction on the law of alibi.
We have not undertaken to set out all of the facts and circumstances in evidence.
As already stated, appellant did not testify. In his closing argument, private prosecutor used language as follows: "Roy Lay arrests the defendant and takes him to jail. The defendant says nothing. He explains nothing."
Appellant objected on the ground, among others, that counsel was commenting on his failure to testify. The court sustained the objection and instructed the jury to disregard the remarks for any purpose. We are unable to reach the conclusion that the argument is not violative of the mandatory provisions of Art. 710, C. C. P., which reads as follows: "Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause."
A violation of the mandate of the statute constitutes reversible error. Pirtle v. State, 10 S.W.2d 564, and authorities cited. An instruction to the jury to disregard an argument clearly violative of the provisions of the statute does not have the effect of curing the error. Bilberry v. State, 281 S.W. 1082.
The judgment is reversed and the cause remanded.
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.
ON STATE'S MOTION FOR REHEARING.