Wilkins v. State

Counsel for the State, in his argument to the jury, said of the defendant: "If this man is not guilty, why does he not take the stand and testify in his own behalf? As you all know, he is now, under the law, a competent witness." In signing the bill of exceptions, the court says, "that as soon as the objection was made the court corrected the prosecuting attorney, and then instructed the jury that the statement made by the attorney was uncalled for, and not warranted or permitted; that the defendant did not have to testify; that it was a matter wholly within his discretion; that the State had no right to question this discretion, or refer to the same; and that they should not hold it its a circumstance against the accused." The statute provides, "that hereafter 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." Gen. Laws 21st Leg., p. 37. Hunt v. The State, 28 Texas Criminal Appeals, 149, is authority for holding this argument reversible error. It was in substance held, in that opinion, that the latter clause of the act cited absolutely prohibits allusion by counsel to the failure of the accused to testify in his own behalf, and that the inhibition is so far mandatory that its violation by prosecuting counsel will work a reversal of the judgment of conviction, although the court may have sought by admonition and by instruction to the jury to disregard such remarks of counsel. The rule in the Hunt case, supra, is here reaffirmed.

The information recites that it was presented by the "deputy county attorney." The Act of the Legislature authorizes the appointment of assistant county attorneys, not to exceed three in number. Acts 22nd Leg., p. 91. While it is the better practice, as a general rule, to use the statutory words, and give officers their statutory appellations, we think the term "deputy," as used in the information, sufficiently designates the "assistant" county attorney, and the information should not be vacated on that account. The remaining errors assigned we deem untenable.

The judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.