Lee v. State , 162 Tex. Crim. 489 ( 1956 )

BELCHER, Judge.

The conviction is for murder with malice; the punishment, 15 years in the penitentiary.

The state’s testimony shows that appellant and the deceased were married on November 22, 1952, and that soon thereafter he began practicing the profession of dentistry in Dallas.

It was shown that appellant had threatened six or seven times to kill the deceased; that appellant had purchased a .22 automatic pistol on May 1, 1953; and that a gun was seen in appellant’s purse on one of her visits to the deceased’s office.

Police Officer Evans responded to a call received at 1:42 A.M., Novmber 8, 1954, by going to appellant’s residence, and appellant came to the door. He testified that appellant told him that her husband had been shot, but after he asked what happened she did not give him any other information except that her name was Elsie and that her mother was coming to Dallas; and that as he entered the house he saw the deceased’s body on th floor.

The testimony shows that appellant, the deceased, and their small child were all the persons present at the time of the shooting.

N In view of our disposition of this case, a further statement of the facts will be omitted.

By Bill of Exception No. 2, appellant complains of the following argument to the jury by the attorney for the state:

“What are you hiding Martin? What are you hiding Barr? If it was an accident? Why didn’t you tell the officers out yonder on November 8th, 1954, it was an accident? And it would have stopped all this trouble here.”

Appellant objected to such argument on the ground that it was a reference to the appellant’s failure to- testify, which objection was overruled, and he excepted.

Mr. Martin and Mr. Barr were the attorneys representing the appellant on the trial before the jury in this case.

During the state’s argument to the jury the questioning of appellant’s attorneys as to what they were “hiding” had the force and effect of charging appellant with presently hiding the facts surrounding the shooting of the deceased, for which she was on trial, and emphasized the opportunity she then had to explain the facts to the jury, which she failed to do. Furthermore, such argument directly called upon the appellant, or indirectly called upon her, by addressing such remarks to her attorneys, to then explain to the jury why she did not tell the officers when they were investigating the deceased’s death that it was an accident, for if she had done so, “it would have stopped all this trouble here.”

The fact that the allusion or comment was put in indirect language does not obviate the'harm. 42 Tex. Jur. 336, Sec. 265; Green v. State, 119 Tex. Cr. R. 230, 44 S. W. 2d 726; Branch’s Ann. P. C., Sec. 374.

This argument, if not direct, was an indirect comment upon the failure of the appellant to testify. It was in violation of Art. 710, Vernon’s Ann. C. C. P., and calls for a reversal.

The judgment is reversed and the cause is remanded.

Opinion approved by the court.